Labrel Case Digests (Set 1)

3E LABOR RELATIONS CASE DIGESTS [SET 1] ATTY. RESURRECCION

1. NELSON V. BEGINO, GENER DEL VALLE, MONINA AVILA-LLORIN AND MA. CRISTINA SUMAYAO, petitioners, vs. ABS-CBN CORPORATION

[G.R. No. 199166. April 20, 2015.]FACTS:

ABS-CBN Corporataion employed AmaliaVillafuerte as Manager for its Regional Network Group in Naga City. Thru Villafuerte, ABS-CBN engaged the services of petitioners Nelson Begino (Begino) and Gener Del Valle (Del Valle) sometime in 1996 as Cameramen/Editors for TV Broadcasting. Ma. Cristina Sumayao and Monina Avila-Llorin were likewise similarly engaged as reporters. With their services engaged by ABS-CBN thru Talent Contracts which provided terms ranging from three (3) months to one (1) year, the petitioners, Sumayao and Llorin, were given Project Assignment Forms which detailed the particular project they would work on as well as the budget and the daily technical requirements thereof. In the aforesaid capacities, petitioners were tasked with coverage of news items for subsequent daily airings in respondents’ TV Patrol Bicol Program.

The Petitioners, Sumayao and Llorin, filed a complaint against ABS-CBN for their regularization, underpayment of overtime pay, holiday pay, 13th month pay, service incentive leave pay, damages and attorney's fees. The petitioners alleged that they performed functions necessary and desirable in ABS-CBN's business in support of their claim.

Although their work involved dealing with emergency situations at any time of the day or night, petitioners claimed that they were not paid the labor standard benefits the law extends to regular employees. To avoid paying what is due them, however, respondents purportedly resorted to the simple expedient of using said Talent Contracts and/or Project Assignment Forms which denominated petitioners as talents, despite the fact that they are not actors or TV hosts of special skills. As a result of this iniquitous situation, petitioners asseverated that they merely earned an average of P7,000.00 to P8,000.00 per month, or decidedly lower than the P21,773.00 monthly salary ABS-CBN paid its regular rank-and-file employees. Considering their repeated re-hiring by respondents for ostensible fixed periods, this situation had gone on for years since TV Patrol Bicol has continuously been aired.

NLRC

Having been terminated during the pendency of the case, Petitioners filed on 10 July 2007 a second complaint against respondents, for regularization, payment of labor standard benefits, illegal dismissal and unfair labor practice. Labor Arbiter Quiñones ruled on the matter by declaring that Llorin, Del Valle, Begino and Sumayao as regular employees of ABS-CBN and that the latter was ordered to pay an amount representing salaries/wage differentials, holiday pay, service incentive leave pay and 13th month pay, to include 10% of the judgment award.

COURT OF APPEALS

Aggrieved by the foregoing decision, respondents elevated the case on appeal before the NLRC which ruled in affirming Labor Arbiter Quiñones’ decision.

ABS-CBN filed the Rule 65 petition for certiorari docketed before the CA. The CA rendered the herein assailed decision, reversing the findings of the Labor Arbiter and the NLRC.

The Petitioners opted to file a motion for reconsideration, which was denied in a CA resolution, hence, this petition.

ISSUE:

Whether or not the CA erred in contradicting the determination made by both the Labor Arbiter & NLRC of the existence of an employer-employee relationship between the parties.

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HELD:

YES.

The Court finds that, notwithstanding the nomenclature of their Talent Contracts and/or Project Assignment Forms and the terms and condition embodied therein, petitioners are regular employees of ABS-CBN.

To determine the existence of said relation, case law has consistently applied the four-fold test, to wit: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer's power to control the employee on the means and methods by which the work is accomplished. Of these criteria, the so-called “control test” is generally regarded as the most crucial and determinative indicator of the presence or absence of an employer-employee relationship. Under this test, an employer-employee relationship is said to exist where the person for whom the services are performed reserves the right to control not only the end result but also the manner and means utilised to achieve the same.

2. FONTERRA BRANDS PHILS., INC., petitioner, vs. LEONARDO 1 LARGADO and TEOTIMO ESTRELLADO, respondents. [G.R. No. 205300. March 18, 2015.]

3. ANGELINA FRANCISCO, Petitioner V. NLRC, KASEI CORPORATION, SEIICHIRO TAKAHASHI, TIMOTEO ACEDO, DELFIN LIZA, IRENE BALLESTEROS, TRINIDAD LIZA and RAMON ESCUETA, Respondents. [G.R NO. 170087,

AUGUST 31, 2006]

YNARES-SANTIAGO, J.:FACTS: Petitioner was hired by Kasei Corporation during its incorporation stage. She was designated as Accountant and Corporate Secretary and was assigned to handle all the accounting needs of the company, however she was not entrusted with the corporate documents; neither did she attend any board meeting nor required to do so. She never prepared any legal document and never represented the company as its Corporate Secretary, but she was prevailed upon to sign documentation for the company. She was also designated as Liason Officer to secure business permits, construction permits and other licenses for the initial operation of the company. In 1996, petitioner was designated Acting Manager, she was assigned to handle recruitment of all employees and perform management administration functions. For 5 years, petitioner performed the duties of Acting Manager. In January 2001, petitioner was replaced by Liza R. Fuentes as Manager and the petitioner was assured that she would still be connected with Kasei Corporation as Technical Assistant to Seiji Kamura and in charge of all BIR matters. Petitioner did not receive her salary from the company and was informed that she is no longer connected with the company. Petitioner filed an ction for constructive dismissal before the labor arbiter. Private respondents averred that petitioner is not an employee of Kasei Corporation. They alleged that as technical consultant, petitioner performed her work at her own discretion without control and supervision of Kasei Corporation. She had no daily time record and she came to the office any time she wanted. The company never interfered with her work except that from time to time, the management would ask her opinion on matters relating to her profession. The petitioner did not go through the usual procedure of selection of employees and her designation as technical consuktant depended solely upon the will of management. As such, her consultancy may be terminated any time considering that her services were only temporary in nature and dependent on the needs of the corporation.

ISSUE: Won there was an employer-employee relationship between the parties.

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RULING: In certain cases the control test is not sufficient to give a complete picture of the relationship between the parties, owing to the complexity of such a relationship where several positions have been held by the worker. There are instances when, aside from the employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished, economic realities of the employment relations help provide a comprehensive analysis of the true classification of the individual, whether as employee, independent contractor, corporate officer or some other capacity. The better approach would therefore be to adopt a two-tiered test involving: 1) putative employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished; and 2) the underlying economic realities of the activity or relationship. This two-tiered test would provide us with a framework of analysis, which would take into consideration the totality of circumstances surrounding the true nature of the relationship between the parties. This is especially appropriate in this case where there is no written agreement or terms of reference to base the relationship on; and due to the complexity of the relationship based on the various positions and responsibilities given to the worker over the period of the latter’s employment. The determination of the relationship between employer and employee depends upon the circumstances of the whole economic activity, such as: 1) the extent to which the services performed are an integral part of the employer’s business; 2) the extent of the worker’s investment in equipment and facilities; 3) the nature and degree of control exercised by the employer; 4) the worker’s opportunity for profit or loss; 5) the amount of initiative, skill, judgment or foresight required for the success of the claimed independent enterprise; 6) the permanency and duration of the relationship between the worker and the employer; and 7) the degree of dependency of the worker upon the employer of his continued employment in that line of business. The proper standard of economic dependence is whether the worker is dependent on the alleged employer for his continued employment in that line of business. Based on the foregoing, there can be no other conclusion that petitioner is an employee of respondent Kasei Corporations. She was selected and engaged by the company for compensation, and is economically dependent upon respondent for her continued employment in that line of business. Her main job function involved accounting and tax services rendered to respondent corporation on a regular basis over an indefinite period of engagement. Respondent corporation hired and engaged petitioner for compensation, with the power to dismiss her for cause. More importantly, respondent corporation had the power to control petitioner with the means and methods by which the work is to be accomplished.

4. BERNARD A. TENAZAS, JAIME M. FRANCISCO and ISIDRO G. ENDRACA, Petitioners,vs. R. VILLEGAS TAXI TRANSPORT and ROMUALDO VILLEGAS, Respondents.

[G.R. No. 192998, April 2, 2014]

FACTS: Bernard Tenazas, Jaime Francisco, and Isidro Endraca filed a complaint for illegaldismissal against R. Villegas Taxi Transport, and/or Romualdo Villegas and Andy Villegas.

PETITIONER’S CLAIM R. VILLEGAS TAXI’S CLAIM

TENAZAS

Taxi unit was sideswiped by anothervehicle (damage = P500); fired afterreporting the incident, even threatenedw/ physical harm if he was seen oncompany premises

Company admits that Tenazas is an employee– regular driver. Tenazas was never terminated; he failed toreport back to work after being told to wait forthe release of his taxi (overhauled due tomechanical defects)

FRANCISCO

Dismissed because of the unfoundedsuspicion that he was organizing alabor union Company denies that Francisco is anemployee

ENDRACA Dismissed after falling short of therequired boundary for his taxi unit; fellshort because of P700 spent on

Company admits that Endraca is an employee– spare driver. Endraca could not have been terminated inMarch 2006 because he stopped

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anurgent repair

reporting forwork in July 2003 (but willing to accommodatehim again as he was never really dismissed)

Tenazas, Francisco, and Endraca also filed a Motion to Admit Additional Evidence: (a) Joint Affidavit of the petitioners; (b) Affidavit of Good Faith of Aloney Rivera (co -driver); (c) pictures of the petitioners wearing company shirts; (d) Tenazas’ Certification/Record of Social Security System (SSS) contributions.

• LA: No illegal dismissal because no proof of an overt act of dismissal committed by R. Villegas Taxi; Francisco failed to prove he was an employee

• NLRC: Reversed LA; the additional evidence sufficiently established the existence of employer-employee relationship and illegal dismissal (for all three)

• CA: Tenazas and Endraca were indeed employees and were illegally dismissed, but Francisco failed to establish his relationship with the company

ISSUE: WON there was an employer-employee relationship (re: Francisco) – NO

HELD:

• The burden of proof rests upon the party who asserts the affirmative of an issue. As Francisco was claiming to be an employee of R. Villegas Taxi, it is incumbent upon him to proffer evidence to prove the existence of the relationship.

• There is no hard and fast rule to establish the elements of employer-employee relationship. Any competent and relevant evidence may be admitted, e.g., identification cards, cash vouchers, social security registration, appointment letters or employment contracts, payrolls, organization charts, personnel lists.

• Francisco failed to present substantial evidence to establish the relationship. No documentary evidence submitted, like an attendance logbook, payroll, SSS record, or any personnel file that depicts his status as an employee. He could also have at least presented his social security records stating his contributions, name and address of employer (which Tenazas presented). Another taxi operator, Emmanuel Villegas, also claimed to be his employer – a fact not denied or questioned by Francisco in any of his pleadings.

Petition DENIED. SC agreed with CA’s order of reinstatement instead of separation pay. (*Strained relations must be demonstrated as a fact. In this case, no facts demonstrated that the relations were so strained as to make reinstatement no longer a feasible option.)

5. SOUTH EAST INTERNATIONAL RATTAN, INC. and/or ESTANISLAO1 AGBAY, Petitioners, vs.JESUS J. COMING, Respondent.

[G.R. No. 186621 March 12, 2014]

FACTS:Petitioner South East International Rattan, Inc. (SEIRI) is a domestic corporation engaged in the business

of manufacturing and exporting furniture to various countries with principal place of business at Paknaan, Mandaue City, while petitioner EstanislaoAgbay, as per records, is the President and General Manager of SEIRI.4On November 3, 2003, respondent Jesus J. Coming filed a complaint5 for illegal dismissal, underpayment of wages, non-payment of holiday pay, 13th month pay and service incentive leave pay, with prayer for reinstatement, back wages, damages and attorney’s fees.

Respondent alleged that he was hired by petitioners as Sizing Machine Operator on March 17, 1984. Initially, his compensation was on "pakiao" basis but sometime in June 1984, it was fixed at P150.00 per day which was paid weekly. Without any apparent reason, his employment was interrupted as he was told by petitioners to resume work in two months time. Being an uneducated person, respondent was persuaded by the management as

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well as his brother not to complain, as otherwise petitioners might decide not to call him back for work. Fearing such consequence.

Respondent was dismissed on January 1, 2002 without lawful cause. He was told that he will be terminated because the company is not doing well financially.

REGIONAL ARBITRATION BRANCH - Almost passed when he finally filed the complaint before the regional arbitration branch. Petitioners denied having hired respondent asserting that SEIRI was incorporated only in 1986, and that respondent actually worked for SEIRI’s furniture suppliers because when the company started in 1987 it was engaged purely in buying and exporting furniture and its business operations were suspended from the last quarter of 1989 to August 1992. They stressed that respondent was not included in the list of employees.

With the denial of petitioners that respondent was their employee, the latter submitted an affidavit11 signed by five former co-workers stating that respondent was one of the pioneer employees who worked in SEIRI for almost twenty years.

In his Decision12 dated April 30, 2004, Labor Arbiter Ernesto F. Carreon ruled that respondent is a regular employee of SEIRI and that the termination of his employment was illegal.

NLRC - Petitioners appealed to the National Labor Relations WHEREFORE, premises considered, the decision of the Labor Arbiter is hereby SET ASIDE and VACATED

and a new one entered DISMISSING the complaint.NLRC likewise denied respondent’s motion for reconsideration.19

COURT OF APPEALS - Respondent elevated the case to the CA via a petition for certiorari under Rule 65. CA reversed the NLRC and ruled that there existed an employer-employee relationship between petitioners and respondent who was dismissed without just and valid cause.

Labor Arbiter is directed to make the proper adjustment in the computation of the award of separation pay as well as the monetary awards of wage differential, 13th month pay, holiday pay and service incentive leave pay.

Petitioners filed a motion for reconsideration but the CA denied it

ISSUE:1. Whether or Not there exist employer-employee relationship2. Whether or not Coming was illegaly dismissed

HELD:The issue of whether or not an employer-employee relationship exists in a given case is essentially a

question of fact. As a rule, this Court is not a trier of facts and this applies with greater force in labor cases. 22 Only errors of law are generally reviewed by this Court.23 This rule is not absolute, however, and admits of exceptions. For one, the Court may look into factual issues in labor cases when the factual findings of the Labor Arbiter, the NLRC, and the CA are conflicting.

To ascertain the existence of an employer-employee relationship jurisprudence has invariably adhered to the four-fold test, to wit: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employee’s conduct, or the so-called "control test." 26 In resolving the issue of whether such relationship exists in a given case, substantial evidence is sufficient. Although no particular form of evidence is required to prove the existence of the relationship, and any competent and relevant evidence to prove the relationship may be admitted, a finding that the relationship exists must nonetheless rest on substantial evidence. 27

x xx As to the "control test", the following facts indubitably reveal that respondents wielded control over the work performance of petitioner, to wit: (1) they required him to work within the company premises; (2) they obliged petitioner to report every day of the week and tasked him to usually perform the same job; (3) they enforced the observance of definite hours of work from 8 o’clock in the morning to 5 o’clock in the afternoon; (4) the mode of payment of petitioner’s salary was under their discretion, at first paying him on pakiao basis and thereafter, on daily basis; (5) they implemented company rules and regulations; (6) [Estanislao] Agbay directly paid

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petitioner’s salaries and controlled all aspects of his employment and (7) petitioner rendered work necessary and desirable in the business of the respondent company.34

The Court held that the fact that a worker was not reported as an employee to the SSS is not conclusive proof of the absence of employer-employee relationship. Nor does the fact that respondent’s name does not appear in the payrolls and pay envelope records submitted by petitioners negate the existence of employer-employee relationship. For a payroll to be utilized to disprove the employment of a person, it must contain a true and complete list of the employee.37 In this case, the exhibits offered by petitioners before the NLRC consisting of copies of payrolls and pay earnings records are only for the years 1999 and 2000; they do not cover the entire 18-year period during which respondent supposedly worked for SEIRI.

Petitioners’ admission that the five affiants were their former employees is binding upon them. While they claim that respondent was the employee of their suppliers Mayol and Apondar, they did not submit proof that the latter were indeed independent contractors; clearly, petitioners failed to discharge their burden of proving their own affirmative allegation.40

In any controversy between a laborer and his master, doubts reasonably arising from the evidence are resolved in favor of the laborer.41

As a regular employee, respondent enjoys the right to security of tenure under Article 279 42 of the Labor Code and may only be dismissed for a just 43 or authorized 44 cause, otherwise the dismissal becomes illegal.

Respondent, whose employment was terminated without valid cause by petitioners, is entitled to reinstatement without loss of seniority rights and other privileges and to his full back wages, inclusive of allowances and other benefits or their monetary equivalent, computed from the time his compensation was withheld from him up to the time of his actual reinstatement. Where reinstatement is no longer viable as an option, back wages shall be computed from the time of the illegal termination up to the finality of the decision. Separation pay equivalent to one month salary for every year of service should likewise be awarded as an alternative in case reinstatement in not possible.45

WHEREFORE, the petition for review on certiorari is DENIED. The Decision dated February 21, 2008 and Resolution dated February 9, 2009 of the Court of Appeals in CA-G.R. No. CEB-SP No. 02113 are hereby AFFIRMED and UPHELD.

6. ERNESTO G. YMBONG, petitioner VS ABS-CBN BROADCASTING CORPORATION, VENERANDA SY AND DANTE LUZON, respondents. [G.R. No. 184885, March 7, 2012]

FACTS

Petitioner Ernesto G. Ymbong started working for ABS-CBN Broadcasting Corporation (ABS-CBN) in 1993 at its regional station in Cebu as a television talent, co-anchoring Hoy Gising and TV Patrol Cebu. His stint in ABS-CBN later extended to radio when ABS-CBN Cebu launched its AM station DYAB in 1995 where he worked as drama and voice talent, spinner, scriptwriter and public affairs program anchor.

Like Ymbong, Leandro Patalinghug also worked for ABS-CBN Cebu. Starting 1995, he worked as talent, director and scriptwriter for various radio programs aired over DYAB.

On January 1, 1996, the ABS-CBN Head Office in Manila issued the “POLICY ON EMPLOYEES SEEKING PUBLIC OFFICE” (The Policy for brevity). The pertinent portions read:

1. Any employee who intends to run for any public office position, must file his/her letter of resignation, at least 30 days prior to the official filing of the certificate of candidacy either for national or local election.2. Further, any employee who intends to join a political group/party or even with no political affiliation but who intends to openly and aggressively campaign for a candidate or group of candidates must file a request for leave of absence subject to managements approval. at least 30 days prior to the start of the planned leave period.

Because of the impending May 1998 elections and based on his immediate recollection of the policy at that time, Dante Luzon, Asst. Station Manager of DYAB issued a MEMORANDUM stating the ff:

“any employee/talent who wants to run for any position in the coming election will have to file a leave of absence the moment he/she files his/her certificate of candidacy. The services

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rendered by the concerned employee/talent to this company will then be temporarily suspended for the entire campaign/election period.”

Luzon, however, admitted that upon double-checking of the exact text of the Policy and subsequent confirmation with the ABS-CBN Head Office, he saw that the Policy actually required SUSPENSION for those who intend to campaign for a political party or candidate and RESIGNATION for those who will actually run in the elections.

After the issuance of said Memorandum, Luzon claims that Ymbong informed him that he would leave radio for a couple of months because he will campaign for the administration ticket. However, it was only after the elections that they found out that Ymbong actually ran for public office himself at the eleventh hour.

Ymbong, on the other hand, claims that in accordance with the Memorandum, he informed Luzon through a letter that he would take a few months leave of absence from March 8, 1998 to May 18, 1998 since he was running for councilor of Lapu-Lapu City.

As regards Patalinghug, Patalinghug approached Luzon and advised him that he will run as councilor for Naga, Cebu. According to Luzon, he clarified to Patalinghug that he will be considered resigned and not just on leave once he files a certificate of candidacy. Patalinghug, thereafter submitted to Luzon his Letter of Resignation.

Unfortunately, both Ymbong and Patalinghug lost in the May 1998 elections. Later, both tried to come back to ABS-CBN Cebu but only to be informed by Luzon that they cannot work there anymore because of company policy.

ABS-CBN, however, agreed out of pure liberality to give them a chance to wind up their participation in the radio drama, Nagbabagang Langit, since it was rating well and to avoid an abrupt ending. The “WINDING-UP”, however, dragged on for so long prompting Luzon to issue to Ymbong ANOTHER MEMORANDUM (dated September 14, 1998) stating that his services are being terminated immediately, much to the surprise of Ymbong.

Ymbong thus filed an ILLEGAL DISMISSAL COMPLAINT against ABS-CBN, Luzon and DYAB Station Manager Veneranda Sy.

o Arguing that the ground cited by ABS-CBN for his dismissal was not among those enumerated in the Labor Code. And even granting without admitting the existence of the company policy supposed to have been violated, Ymbong averred that it was necessary that the company policy meet certain requirements before willful disobedience of the policy may constitute a just cause for termination. Ymbong further argued that the company policy violates his constitutional right to suffrage.

Patalinghug likewise filed an illegal dismissal complaint against ABS-CBN. ABS-CBN prayed for the dismissal of the complaints arguing that there is no employer-employee relationship

between the company and Ymbong and Patalinghug. ABS-CBN contended that they are not employees but “TALENTS” as evidenced by their talent contracts. However, notwithstanding their status, ABS-CBN has a standing policy on persons connected with the company whenever they will run for public office.

LABOR ARBITER Dismissal of Ymbong and Patalinghug ILLEGAL, directing respondent ABS-CBN to immediately reinstate

complainants to their former positions without loss of seniority rights plus the payment of backwages to each complainant.

LA found that there exists an employer-employee relationship between ABS-CBN and Ymbong and Patalinghug considering the stipulations in their appointment letters/talent contracts.

o LA noted particularly that the appointment letters/talent contracts IMPOSED conditions in the performance of their work, specifically on attendance and punctuality, which effectively placed them under the control of ABS-CBN.

o that although the subject company policy is reasonable and not contrary to law, the same was not made known to Ymbong and Patalinghug and in fact was SUPERSEDED by the 1998 Memorandum issued by Luzon. Thus, there is no valid or authorized cause in terminating Ymbong and Patalinghug from their employment.

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In its Memorandum of Appeal, ABS-CBN contended that the LA has no jurisdiction over the case because there is no employer-employee relationship between the company and the complainants

In its Supplemental Appeal, ABS-CBN insisted that Ymbong and Patalinghug were engaged as radio talents for DYAB dramas and personality programs and their contract is one between a self-employed contractor and the hiring party which is a standard practice in the broadcasting industry.

NLRC MODIFIED the decision of L.A. Nicasio C. Aninon, ordering ABS-CBN to reinstate Ymbong and to pay his full

backwages. NLRC dismissed ABS-CBNs Supplemental Appeal for being filed out of time. NLRC also held that ABS-CBN wielded the power of control over Ymbong and Patalinghug, thereby proving

the existence of an employer-employee relationship between them. As to the issue of whether they were illegally dismissed, the NLRC treated their cases DIFFERENTLY.

o it found that PATALINGHUG voluntarily resigned from employment when he submitted his resignation letter, although the tenor of the resignation letter is somewhat involuntary

o As to YMBONG, NLRC ruled otherwise. That the Memorandum merely states that an employee who seeks any elected position in the government will only merit the temporary suspension of his services. It held that under the principle of social justice, the March 25, 1998 Memorandum shall prevail and ABS-CBN is estopped from enforcing the September 14, 1998 Memorandum issued to Ymbong stating that his services had been automatically terminated when he ran for an elective position.

Imputing grave abuse of discretion on the NLRC, ABS-CBN filed a petition for certiorari before the CA

CA

REVERSED and SET ASIDE the Decision and Resolution of the NLRC. Declared Ymbong resigned from employment and not to have been illegally dismissed. ruled that ABS-CBN is ESTOPPED from claiming that Ymbong was not its employee after applying the

provisions of the Policy. It noted that the guidelines contained in the Policy specifically pertain to “EMPLOYEES” and did not even mention TALENTS or INDEPENDENT CONTRACTORS. By applying the subject company policy on Ymbong, ABS-CBN had explicitly recognized him to be an employee and not merely an independent contractor.

that the subject company policy is the controlling guideline and that there is no illegal dismissal to speak of in the instant case as Ymbong is considered resigned when he ran for an elective post pursuant to the subject company policy.

Luzon had no authority to issue a memorandum that had the effect of repealing or superseding a subsisting policy.

Hence, this petition.

ISSUES (1) whether the subject Company Policy is valid; - YES (2) whether Ymbong, by seeking an elective post, is deemed to have resigned and not dismissed by ABS-CBN. –YES

HELD

1. Policy No. HR-ER-016 is valid. This is not the first time that this Court has dealt with a policy similar to Policy No. HR-ER-016. In the case

of Manila Broadcasting Company v. NLRC, this Court ruled:What is involved in this case is an unwritten company policy considering any employee

who files a certificate of candidacy for any elective or local office as resigned from the company.

Although 11(b) of R.A. No. 6646 does not require mass media commentators and announcers such as private respondent to resign from their radio or TV stations but only to go on leave for the duration of

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the campaign period, we think that the company may nevertheless validly require them to resign as a matter of policy.

In this case, the POLICY is justified on the following grounds:o Working for the government and the company at the same time is clearly disadvantageous

and prejudicial to the rights and interest not only of the company but the public as well. In the event an employee wins in an election, he cannot fully serve, as he is expected to do, the interest of his employer. The employee has to serve two (2) employers, obviously detrimental to the interest of both the government and the private employer.

o In the event the employee loses in the election, the impartiality and cold neutrality of an employee as broadcast personality is suspect, thus readily eroding and adversely affecting the confidence and trust of the listening public to employers station.

so long as a company’s MANAGEMENT PREROGATIVES are exercised in good faith for the advancement of the employers interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements, this Court will uphold them.

In the instant case, ABS-CBN validly justified the implementation of the Policy. It is well within its rights to ensure that it maintains its objectivity and credibility and freeing itself from any appearance of impartiality so that the confidence of the viewing and listening public in it will not be in any way eroded.

Even as the law is solicitous of the welfare of the employees, it must also protect the right of an employer to exercise what are clearly management prerogatives. The free will of management to conduct its own business affairs to achieve its purpose cannot be denied.

2. Ymbong is deemed resigned when he ran for councilor.

As Policy No. HR-ER-016 (subject policy) is the subsisting company policy and not Luzons March 25, 1998 Memorandum, Ymbong is deemed resigned when he ran for councilor.

We find no merit in Ymbongs argument that [his] automatic termination x x x was a blatant [disregard] of [his] right to due process as he was never asked to explain why he did not tender his resignation before he ran for public office as mandated by [the subject company policy].

YMBONGS OVERT ACT OF RUNNING FOR COUNCILOR OF LAPU-LAPU CITY IS TANTAMOUNT TO RESIGNATION ON HIS PART. He was separated from ABS-CBN not because he was dismissed but because he resigned.

Since there was no termination to speak of, the requirement of due process in dismissal cases cannot be applied to Ymbong.

Thus, ABS-CBN is not duty-bound to ask him to explain why he did not tender his resignation before he ran for public office as mandated by the subject company policy.

WHEREFORE, the petition for review on certiorari is DENIED for lack of merit.

7. PEOPLES BROADCASTING SERVICE (BOMBO RADYO PHILS., INC.) -versus- THE SECRETARY OF THE DEPARTMENT OF LABOR AND EMPLOYMENT, THE REGIONAL DIRECTOR, DOLE REGION VII, AND JANDELEON

JUEZAN. [G.R. No. 179652, MARCH 6,2012]

FACTS:

Private respondent Jandeleon Juezan filed a complaint against petitioner with the Department of Labor and Employment (DOLE) for illegal deduction, nonpayment of service incentive leave, 13th month pay, premium pay for holiday and rest day and illegal diminution of benefits, delayed payment of wages and noncoverage of SSS, PAG-IBIG and Philhealth. The DOLE Regional Director found that private respondent was an employee of petitioner, and was entitled to his money claims. Hence, there is an employer-employee ralationship. When the matter was brought before the CA it was held DOLE Secretary had jurisdiction over the matter.The case was elevated to the Supreme Court which found that there was no employer-employee relationship between

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petitioner and private respondent. It was held that while the DOLE may make a determination of the existence of an employer-employee relationship, this function could not be co-extensive with the visitorial and enforcement power provided in Art. 128(b) of the Labor Code, as amended by RA 7730. The National Labor Relations Commission (NLRC) was held to be the primary agency in determining the existence of an employer-employee relationship. From this Decision, the Public Attorneys Office (PAO) filed a Motion for Clarification of Decision (with Leave of Court). The PAO sought to clarify as to when the visitorial and enforcement power of the DOLE be not considered as co-extensive with the power to determine the existence of an employer-employee relationship.

ISSUE:

WON DOLE has jurisdiction to determine the employer-employee relationship.

HELD:

No. If a complaint is brought before the DOLE to give effect to the labor standards provisions of the Labor Code or other labor legislation, and there is a finding by the DOLE that there is an existing employer-employee relationship, the DOLE exercises jurisdiction to the exclusion of the NLRC. If the DOLE finds that there is no employer-employee relationship, the jurisdiction is properly with the NLRC. In the present case, the finding of the DOLE Regional Director that there was an employer-employee relationship has been subjected to review by this Court, with the finding being that there was no employer-employee relationship between petitioner and private respondent, based on the evidence presented. Private respondent presented self-serving allegations as well as self-defeating evidence. The findings of the Regional Director were not based on substantial evidence, and private respondent failed to prove the existence of an employer-employee relationship. The DOLE had no jurisdiction over the case, as there was no employer-employee relationship present.

8. BITOY JAVIER (DANILO P. JAVIER), petitioner VS FLY ACE CORP, FLORDELYN CASTILLO, respondents [G.R. No. 192558, February 15, 2012]

FACTS On May 23, 2008, Javier filed a complaint before the NLRC for UNDERPAYMENT OF SALARIES and OTHER

LABOR STANDARD BENEFITS. He alleged:

o that he was an employee of Fly Ace since September 2007, performing various tasks at the respondents warehouse such as cleaning and arranging the canned items before their delivery to certain locations, except in instances when he would be ordered to accompany the company’s delivery vehicles, as pahinante; Reporting for work from Monday to Saturday from 7AM – 5PM.

o that during his employment, he was not issued an identification card and payslips by the company; o that on May 6, 2008, he reported for work but he was no longer allowed to enter the company

premises by the security guard upon the instruction of Ruben Ong (Mr. Ong), his superior,o that after several minutes of begging to the guard to allow him to enter, he saw Ong whom he

approached and asked why he was being barred from entering the premises to which Ong replied by saying, Tanungin mo anak mo;

o that he discovered Ong had been courting his daughter Annalyn, who tried to talk to Ong and convince him to spare her father from trouble but he refused to accede;

o that thereafter, Javier was terminated from his employment without notice; and was neither given the opportunity to refute the cause/s of his dismissal from work.

To support his allegations, Javier presented an affidavit of one Bengie Valenzuela who alleged that Javier was a stevedore or pahinante of Fly Ace from September 2007 to January 2008. The said affidavit was subscribed before the Labor Arbiter (LA).

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Fly Ace averred that it was engaged in the business of importation and sales of groceries. Sometime in December 2007, Javier was contracted by its employee, Mr. Ong, as extra helper on a pakyaw basis at an agreed rate of ₱300.00 per trip, which was later increased to ₱325.00 in January 2008. Mr. Ong contracted Javier roughly 5 to 6 times only in a month whenever the vehicle of its contracted hauler, Milmar Hauling Services, was not available. On April 30, 2008, Fly Ace no longer needed the services of Javier. Denying that he was their employee, Fly Ace insisted that there was no illegal dismissal. Fly Ace submitted a copy of its agreement with Milmar Hauling Services and copies of acknowledgment receipts evidencing payment to Javier for his contracted services bearing the words, daily manpower (pakyaw/piece rate pay) and the latters signatures/initials.

LABOR ARBITER On November 28, 2008, the LA DISMISSED the complaint for lack of merit on the ground that Javier failed to

present proof that he was a regular employee of Fly Ace. o His contention that Respondent failed to give him said ID and payslips implies that indeed he was not

a regular employee of Fly Ace considering that complainant was a helper and that Respondent company has contracted a regular trucking for the delivery of its products.

o Respondent Fly Ace is not engaged in trucking business but in the importation and sales of groceries. Since there is a regular hauler to deliver its products, we give credence to Respondents claim that complainant was contracted on pakiao basis.

o As to the claim for underpayment of salaries, the payroll presented by the Respondents showing salaries of workers on pakiao basis has evidentiary weight because although the signature of the complainant appearing thereon are not uniform, they appeared to be his true signature.

NLRC On appeal with the NLRC, Javier was favored. It ruled that the LA skirted the argument of Javier and

immediately concluded that he was not a regular employee simply because he failed to present proof. It was of the view that a pakyaw-basis arrangement did not preclude the existence of employer-employee relationship.

Finding Javier to be a regular employee, the NLRC ruled that he was entitled to a security of tenure. For failing to present proof of a valid cause for his termination, Fly Ace was found to be liable for illegal dismissal of Javier who was likewise entitled to backwages (₱45,770.83) and separation pay in lieu of reinstatement (8,450.00).

CA

On March 18, 2010, the CA ANNULLED the NLRC findings that Javier was indeed a former employee of Fly Ace

and REINSTATED the dismissal of Javiers complaint as ordered by the LA. In an illegal dismissal case the onus probandi rests on the employer to prove that its dismissal was for a valid

cause. However, before a case for illegal dismissal can prosper, an EMPLOYER-EMPLOYEE RELATIONSHIP must first be established. it is incumbent upon private respondent to prove the employee-employer relationship by substantial evidence.

It is incumbent upon private respondent to prove, by substantial evidence, that he is an employee of petitioners, but he failed to discharge his burden. The non-issuance of a company-issued identification card to private respondent supports petitioners contention that private respondent was NOT its employee.

Further, it found that Javiers work was NOT necessary and desirable to the business or trade of the company, as it was only when there were scheduled deliveries, which a regular hauling service could not deliver, that Fly Ace would contract the services of Javier as an extra helper. Lastly, the CA declared that the facts alleged by Javier did not pass the control test.

Hence, this appeal.ISSUES:

1. WON the CA erred in holding that the petitioner was not a regular employee of FLY ACE - NO

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2. WON the CA erred in holding that the petitioner is not entitles to his monetary claims – NO

HELD PETITION DENIED, CA RULING AFFIRMED.

It must be noted that the issue of Javier’s alleged illegal dismissal is anchored on the existence of an EMPLOYER-EMPLOYEE RELATIONSHIP between him and Fly Ace. This is essentially a question of fact.

Generally, the Court does not review errors that raise factual questions. However, when there is conflict among the factual findings of the antecedent deciding bodies like the LA, the NLRC and the CA, "it is proper, in the exercise of Our equity jurisdiction, to review and re-evaluate the factual issues and to look into the records of the case and re-examine the questioned findings." In dealing with factual issues in labor cases, "substantial evidence – that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion – is sufficient."

As the records bear out, the LA and the CA found Javier’s claim of employment with Fly Ace as wanting and deficient. The Court is constrained to agree. Although Section 10, Rule VII of the New Rules of Procedure of the NLRC allows a relaxation of the rules of procedure and evidence in labor cases, this rule of liberality does not mean a complete dispensation of proof.

In sum, the rule of thumb remains: the ONUS PROBANDI falls on petitioner to establish or substantiate such claim by the requisite quantum of evidence. "Whoever claims entitlement to the benefits provided by law should establish his or her right thereto. Javier failed to adduce substantial evidence as basis for the grant of relief.

While Javier remains firm in his position that as an employed stevedore of Fly Ace, he was made to work in the company premises during weekdays arranging and cleaning grocery items for delivery to clients, no other proof was submitted to fortify his claim. The lone affidavit executed by one Bengie Valenzuela was unsuccessful in strengthening Javier’s cause. The Court cannot ignore the inescapable conclusion that his mere presence at the workplace falls short in proving employment therein. The supporting affidavit could have, to an extent, bolstered Javier’s claim of being tasked to clean grocery items when there were no scheduled delivery trips, but no information was offered in this subject simply because the witness had no personal knowledge of Javier’s employment

The Court is of the considerable view that on Javier lies the burden to pass the well-settled tests to determine the existence of an EMPLOYER-EMPLOYEE RELATIONSHIP, viz:

(1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employee’s conduct not only as to the result of the work but also as to the means and methods by which the result is to be accomplished. (most important)

In this case, Javier was not able to persuade the Court that the above elements exist in his case.

Fly Ace does not dispute having contracted Javier and paid him on a "per trip" rate as a stevedore, albeit on a pakyaw basis. The Court cannot fail to note that Fly Ace presented documentary proof that Javier was indeed paid on a pakyaw basis per the acknowledgment receipts admitted as competent evidence by the LA. Unfortunately for Javier, his mere denial of the signatures affixed therein cannot automatically sway us to ignore the documents because "forgery cannot be presumed and must be proved by clear, positive and convincing evidence and the burden of proof lies on the party alleging forgery."

Considering the above findings, the Court does not see the necessity to resolve the second issue presented.

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The Court’s decision does not contradict the settled rule that "payment by the piece is just a method of compensation and does not define the essence of the relation." Payment on a piece-rate basis does not negate regular employment. "The term ‘wage’ is broadly defined in Article 97 of the Labor Code as remuneration or earnings, capable of being expressed in terms of money whether fixed or ascertained on a time, task, piece or commission basis. Payment by the piece is just a method of compensation and does not define the essence of the relations. Nor does the fact that the petitioner is not covered by the SSS affect the employer-employee relationship. However, in determining whether the relationship is that of employer and employee or one of an independent contractor, each case must be determined on its own facts and all the features of the relationship are to be considered.

While the Constitution is committed to the policy of social justice and the protection of the working class, it should not be supposed that every labor dispute will be automatically decided in favor of labor. Management also has its rights which are entitled to respect and enforcement in the interest of simple fair play. Out of its concern for the less privileged in life, the Court has inclined, more often than not, toward the worker and upheld his cause in his conflicts with the employer. Such favoritism, however, has not blinded the Court to the rule that justice is in every case for the deserving, to be dispensed in the light of the established facts and the applicable law and doctrine.

9. RAUL G. LOCSIN and EDDIE B. TOMAQUIN, Petitioners VS. PHILIPPINE LONG DISTANCE TELEPHONE COMPANY, Respondent [G.R. NO. 185251, OCTOBER 2, 2009]

FACTS: On November 1, 1990, respondent PLDT and the Security and Safety Corporation of the Philippines (SSCP) entered into a Security Services Agreement whereby the latter would provide armed security guards to PLDT to be assigned to its various offices. Pursuant thereto, petitioners Locsin and Tomaquin, among other security guards, were posted at a PLDT office. PLDT terminated the Agreement effective October 1, 2001. However, despite such termination, petitioners continued to secure the premises of their assigned office and were allegedly directed to remain at their post by PLDT representatives. In support of their contention, petitioners provided the Labor Arbiter with copies of Locsin’s pay slips. On September 30, 2002, petitioners’ services were terminated. Thus, petitioners filed a complaint before the Labor Arbiter for illegal dismissal and recovery of money claims such as overtime pay, holiday pay, premium pay for holiday and rest day, service incentive leave pay, Emergency Cost of Living Allowance, and moral and exemplary damages against PLDT.

LABOR ARBITERThe Labor Arbiter rendered a Decision finding PLDT liable for illegal dismissal and ordered to pay petitioners separation pay and back wages. Petitioners were found to be employees of PLDT and not of SSCP through the factual finding that petitioners continued to serve as guards of PLDT’s offices.

NLRC PLDT appealed the above Decision to the NLRC which rendered a Resolution affirming in toto the Arbiters Decision. Thus, PDLT filed a Motion for Reconsideration of the NLRCs Resolution which was also denied. CAPLDT filed a Petition for Certiorari with the CA asking for the nullification of the Resolution issued by the NLRC as well as the Labor Arbiters Decision. The CA rendered the assailed decision granting PLDT’s petition and dismissing petitioners complaint. The CA applied the four-fold test in order to determine the existence of an employer-employee relationship between the parties but did not find such relationship. It determined that SSCP was not a labor-only contractor and was an independent contractor having substantial capital to operate and conduct its own business. The CA further bolstered its decision by citing the Agreement whereby it was stipulated that there shall be no employer-employee relationship between the security guards and PLDT.

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From such assailed decision, petitioners filed a motion for reconsideration which was denied in the assailed resolution. Hence, this petition.

ISSUE: W/N petitioners’ extended services to PLDT from the effectivity of the termination constitutes an employer-employee relationship between respondent and the complainants. HELD: YES. An Employer-Employee Relationship Existed Between the Parties. Rule 131, Section 3(y) of the Rules of Court provides: SEC. 3. Disputable presumptions.The following presumptions are satisfactory if uncontradicted, but may be contradicted and overcome by other evidence:x x x x (y) That things have happened according to the ordinary course of nature and the ordinary habits of life.

In the ordinary course of things, responsible business owners or managers would not allow security guards of an agency with whom the owners or managers have severed ties with to continue to stay within the business premises, because upon the termination of the owners or managers agreement with the security agency, the agency’s undertaking of liability for any damage that the security guard would cause has already been terminated. With the conclusion that respondent directed petitioners to remain at their posts and continue with their duties, it is clear that respondent exercised the power of control over them; thus, the existence of an employer-employee relationship. Such power of control has been explained as the right to control not only the end to be achieved but also the means to be used in reaching such end, and control is the most important element in the determination of the existence of an employer-employee relationship. In Pacific Consultants International Asia, Inc. v. Schonfeld, the Court set out the four elements such relationship: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employees conduct.Thus, the Secretary of Labor issued Department Order No. 18-2002, Series of 2002, implementing Art. 106 as follows: Section 5. Prohibition against labor-only contracting.Labor-only contracting is hereby declared prohibited. For this purpose, labor-only contracting shall refer to an arrangement where the contractor or subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal, and any of the following elements are present: xxx (ii) the contractor does not exercise the right to control over the performance of the work of the contractual employee. The foregoing provisions shall be without prejudice to the application of Article 248 (C) of the Labor Code, as amended. xxx

The right to control shall refer to the right reserved to the person for whom the services of the contractual workers are performed, to determine not only the end to be achieved, but also the manner and means to be used in reaching that end. Evidently, PLDT having the power of control over petitioners must be considered as petitioners’ employer from the termination of the Agreement onwards as this was the only time that any evidence of control was exhibited by

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respondent over petitioners. Thus, petitioners were entitled to the rights and benefits of employees of PLDT, including due process requirements in the termination of their services. Respondent is guilty of illegal dismissal.

10. PROFESSIONAL SERVICES, INC., petitioner, vs.THE COURT OF APPEALS and NATIVIDAD and ENRIQUE AGANA, respondents, [G.R. No. 126297, February 11, 2008]

11. JOSE Y. SONZA, petitioner, vs. ABS-CBN BROADCASTING CORPORATION, respondent [GR No.138051, June 10, 2004 ]

Carpio, J.:FACTS:

In May 1994, respondent ABS-CBN Broadcasting Corporation (ABS-CBN) signed an Agreement (Agreement) with the Mel and Jay Management and Development Corporation (MJMDC). ABS-CBN was represented by its corporate officers while MJMDC was represented by SONZA, as President and General Manager, and Carmela Tiangco (TIANGCO), as EVP and Treasurer. Referred to in the Agreement as AGENT, MJMDC agreed to provide SONZAs services exclusively to ABS-CBN as talent for radio and television. The Agreement listed the services SONZA would render to ABS-CBN, as follows:

a. Co-host for Mel & Jay radio program, 8:00 to 10:00 a.m., Mondays to Fridays;

b. Co-host for Mel & Jay television program, 5:30 to 7:00 p.m., Sundays

ABS-CBN agreed to pay for SONZAs services a monthly talent fee of P310,000 for the first year and P317,000 for the second and third year of the Agreement. ABS-CBN would pay the talent fees on the 10th and 25th days of the month.

However on April 1, 1996, Petitioner Sonza, through MJMDC, demanded the rescission of the contract between Sonza and ABS CBN. The letter was signed by petitioner as the Company’s President. In the letter, Sonza stated that he is waiving and renouncing recovery of the remaining amount stipulated in paragraph 7 of the Agreement but reserves the right to seek recovery of the other benefits under said Agreement.

Later on, Sonza filed with the Dept. of Labor and Employment a complaint for the payment of wages, signing bonus, and other benefits. Respondent responded that the Labor Arbiter is without jurisdiction as there exist no employee-employer relationship between the parties.

ISSUE

Whether or not Petitioner Sonza is an employee of the Respondent ABS-CBN.

RULING:

The Court answered in the negative.

The Supreme Court upheld the decision of the Court of Appeals which in turn sustained the ruling of the NLRC andwhich in turn sustained the Labor Arbiter’s decision to dismiss the case because of lack of Jurisdiction. The Labor Arbiter found that there exist no employee-employer relationship between Petitioner and Respondent.

The Petitioner is clearly an independent contractor. The employee-employer relationship is between Sonza and MJMDC, and not ABSCBN. MJMDC acted as the agent of Sonza between him and ABSCBN.

In determining whether there exist an employee-employer relationship between the parties, the Court determined if the elements are present, namely: (a) the selection and engagement of the employee; (b) the payment of wages;

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(c) the power of dismissal; and (d) the employers power to control the employee on the means and methods by which the work is accomplished

It was found that the selection of Sonza was indeed based on the decision of ABSCBN. However, it was found that Wages paid to Sonza was by virtue of the contract entered into by and between MJMDC, the agent of Sonza and ABSCBN. This is a circumstance indicative, but not conclusive, of an independent contractual relationship.

On the third element, it was found by the Court that ABSCBN did not possess the power of dismissal. They are bound to pay the Wages of Sonza even during severe business losses during the life of the Agreement. Respondent could not retrench Sonza.

On the last element, which is the most important element, the Court found that Respondent had no control on how Sonza performs his duties as long as he does not attack the Respondent or its interest. The only control they have is to whether to air or not the show of Sonza, but even then the latter is still obliged to pay the Petitioner’s wages regardless.

In sum, the Court ruled that based on the aforementioned elements, there is no employee-employer relation between Sonza and ABSCBN. Clearly, the present case does not call for an application of the Labor Code provisions but an interpretation and implementation of the May 1994 Agreement. In effect, SONZAs cause of action is for breach of contract which is intrinsically a civil dispute cognizable by the regular courts.

Case is dismissed with costs against Petitioner.

12. SAN MIGUEL CORPORATION EMPLOYEES UNION-PTGWO vs. HON. JESUS G. BERSAMIRA[G.R. No. 87700 June 13, 1990]

MELENCIO-HERRERA, J.:

FACTS:

Sometime in 1983 and 1984, San Mig entered into contracts for merchandising services with Lipercon and D'Rite. These companies are independent contractors duly licensed by the DOLE. In said contracts, it was expressly understood and agreed that the workers employed by the contractors were to be paid by the latter and that none of them were to be deemed employees or agents of San Mig.

There was to be no employer-employee relation between the contractors and/or its workers, on the one hand, and San Mig on the other.

Petitioner is the duly authorized representative of the monthly paid rank-and-file employees of San Mig with whom the latter executed a Collective Bargaining Agreement effective 1 July 1986 to 30 June 1989. Section 1 of their CBA specifically provides that "temporary, probationary, or contractemployees and workers are excluded from the bargaining unit and,therefore, outside the scope of this Agreement."

In a letter dated 20 November 1988, the Union advised San Mig that some Lipercon and D'Rite workers had signed up for union membership and sought the regularization of their employment with SMC. The Union alleged that this group of employees, while appearing to be contractual workers supposedly independent contractors, have been continuously working for San Mig for a period ranging from 6 months to 15 years and that their work is neither casual nor seasonal as they are performing work or activities necessary or desirable in the usual business or trade of San Mig. Thus, it was contended that there exists a "labor-only" contracting situation. It was then demanded that the employment status of these workers be regularized.

On 12 January 1989 and 30 January 1989, the Union filed two notices of strike for unfair labor practice, CBA violations, and union busting. Conciliatory meetings were then held before the National Conciliation and Mediation Board of DOLE (NCMB-DOLE).

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Beginning 14 February 1989 until 2 March 1989, series of pickets were staged by Lipercon and D'Rite workers in various SMC plants and offices. On 6 March 1989, SMC filed a verified Complaint for Injunction and Damages before respondent Court enjoining petitioner from representingand/or acting in behalf of the employees of Lipercon and D’Rite, and of calling a strike among others.

Respondent Court found the Complaint sufficient in form and substance and issued a Temporary Restraining Order, and subsequently, an Order granting the complaint of SanMig.

ISSUE: Whether or not there exists a labor dispute such that the RTC may notvalidly assume jurisdiction to the exclusion of the NCMB-DOLE.

HELD:A "LABOR DISPUTE" as defined in Article 212 (1) of the Labor Code includes "any controversy or matter concerning terms and conditions ofemployment or the association or representation of persons in negotiating,fixing, maintaining, changing, or arranging the terms and conditions ofemployment, regardless of whether the disputants stand in the proximaterelation of employer and employee."

While it is San Mig's submission that no employer-employee relationship exists between itself, on the one hand, and the contractual workers of Lipercon and D'Rite on the other, a labor dispute can nevertheless exist "regardless of whether the disputants stand in the proximate relationship ofemployer and employee" provided the controversy concerns, among others, the terms and conditions of employment or a "change" or "arrangement" thereof.

Put differently, and as defined by law, the existence of a labor dispute is not determined by the fact that the plaintiffs and defendants do not stand in the proximate relation of employer and employee.That a labor dispute, as defined by the law, does exist here is evident.

What the Union seeks is to regularize the status of the employees contracted by Lipercon and D'Rite in effect, that they be absorbed into the working unit of SanMig. This matter definitely dwells on the working relationship between said employees vis-a-vis SanMig.

Terms, tenure and conditions of their employment and the arrangement of those terms are thus involved bringingthe matter within the purview of a labor dispute.

Further, the Union also seeks to represent those workers, who have signed up for Union membership, for the purpose of collective bargaining.

SanMig, for its part, resists that Union demand on the ground that there is no employer-employee relationship between it and those workers and because the demand violates the terms of their CBA. Obvious then is that representation and association, for the purpose of negotiating the conditions ofemployment are also involved.

Neither can it be denied that the controversy below is directly connected with the labor dispute already taken cognizanceof by the NCMB-DOLE. As the case is indisputably linked with a labor dispute, jurisdiction belongs tothe labor tribunals.

13. BROTHERHOOD LABOR UNIT MOVEMENT OF THE PHILIPPINES VS HON. RONALDO B. ZAMORA, [G.R. No. L-48645, JANUARY 7, 1987]

FACTS

Unrebutted evidence and testimony on record establish that the petitioners are workers who have been employed at the San Miguel Parola Glass Factory since 1961, averaging about seven (7) years of service at the time of their termination.

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They worked as “cargadores” or “pahinantes” at the SMC Plant loading, unloading, piling or palleting empty bottles and wooden shells to and from company trucks and warehouses. At times, they accompanied the company trucks on their delivery routes.

“On their part, respondents moved for the dismissal of the complaint on the grounds that the complainants are not and have never been employees of respondent company but employees of the independent contractor; that respondent company has never had control over the means and methods followed by the independent contractor who enjoyed full authority to hire and control said employees; and that the individual complainants are barred by estoppel from asserting that they are employees of respondent company.

The petitioners strongly argue that there exists an employer-employee relationship between them and the respondent company and that they were dismissed for unionism, an act constituting unfair labor practice “for which respondents must be made to answer.”

Work in the glass factory was neither regular nor continuous, depending wholly on the volume of bottles manufactured to be loaded and unloaded, as well as the business activity of the company. Work did not necessarily mean a full eight (8) hour day for the petitioners. However, work, at times, exceeded the eight (8) hour day and necessitated work on Sundays and holidays. For this, they were neither paid overtime nor compensation for work on Sundays and holidays.

Sometime in January, 1969, the petitioner workers - numbering one hundred and forty (140) organized and affiliated themselves with the petitioner union and engaged in union activities. Believing themselves entitled to overtime and holiday pay, the petitioners pressed management, airing other grievances such as being paid below the minimum wage law, inhuman treatment, being forced to borrow at usurious rates of interest and to buy raffle tickets, coerced by withholding their salaries, and salary deductions made without their consent. However, their gripes and grievances were not heeded by the respondents.

On February 20, 1969, all the petitioners were dismissed from their jobs and, thereafter, denied entrance to respondent company’s glass factory despite their regularly reporting for work. A complaint for illegal dismissal and unfair labor practice was filed by the petitioners.

ISSUE: Whether or not an employer-employee relationship exists between petitioners-members of the “Brotherhood Labor Unit Movement of the Philippines” (BLUM) and respondent San Miguel Corporation.

HELD: In determining the existence of an employer-employee relationship, the elements that are generally considered are the following:(a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer’s power to control the employee with respect to the means and methods by which the work is to be accomplished.

It is the so-called “control test” that is the most important element (Investment Planning Corp. of the Phils. vs. The Social Security System, 21 SCRA 924; Mafinco Trading Corp. vs. Ople, supra, and Rosario Brothers, Inc. vs. Ople, 131 SCRA 72).

Applying the above criteria, the evidence strongly indicates the existence of an employer-employee relationship between petitioner workers and respondent San Miguel Corporation. The respondent asserts that the petitioners are employees of the Guaranteed Labor Contractor, an independent labor contracting firm.

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Uncontroverted is the fact that for an average of seven (7) years, each of the petitioners had worked continuously and exclusively for the respondent company’s shipping and warehousing department. Considering the length of time that the petitioners have worked with the respondent company, there is justification to conclude that they were engaged to perform activities necessary or desirable in the usual business or trade of the respondent, and the petitioners are, therefore regular employees (Phil. Fishing Boat Officers and Engineers Union vs. Court of Industrial Relations, 112 SCRA 159 and RJL Martinez Fishing Corporation vs. National Labor Relations Commission, 127 SCRA 454).

Despite past shutdowns of the glass plant for repairs, the petitioners, thereafter, promptly returned to their jobs, never having been replaced, or assigned elsewhere until the present controversy arose. The term of the petitioners’ employment appears indefinite. The continuity and habituality of petitioners’ work bolsters their claim of employee status vis-a-vis respondent company.

We find that Guaranteed and Reliable Labor contractors have neither substantial capital nor investment to qualify as an independent contractor under the law. The premises, tools, equipment and paraphernalia used by the petitioners in their jobs are admittedly all supplied by respondent company. It is only the manpower or labor force which the alleged contractors supply, suggesting the existence of a “labor-only” contracting scheme prohibited by law (Article 106, 109 of the Labor Code; Section 9(b), Rule VIII, Book III, Implementing Rules and Regulations of the Labor Code).

In fact, even the alleged contractor’s office, which consists of a space at respondent company’s warehouse, table, chair, typewriter and cabinet, are provided for by respondent SMC. It is therefore clear that the alleged contractors have no capital outlay involved in the conduct of its business, in the maintenance thereof or in the payment of its workers’ salaries.

The payment of the workers’ wages is a critical factor in determining the actuality of an employer-employee relationship whether between respondent company and petitioners or between the alleged independent contractor and petitioners. It is important to emphasize that in a truly independent contractor-contractee relationship, the fees are paid directly to the manpower agency in lump sum without indicating or implying that the basis of such lump sum is the salary per worker multiplied by the number of workers assigned to the company.

The San Miguel Corporation is hereby ordered to REINSTATE petitioners, with three (3) years backwages. However, where reinstatement is no longer possible, the respondent SMC is ordered to pay the petitioners separation pay equivalent to one (1) month pay for every year of service.

14. CITY BANK v COURT OF APEALS [G.R. No. 108961. November 27, 1998]

FACTS:

In 1983, Citibank and El Toro Security Agency, Inc. (hereafter El Toro) entered into a contract for the latter to provide security and protective services to safeguard and protect the bank's premises, situated at 8741 Paseo de Roxas, Makati, Metro Manila.

Citibank renewed the security contract with El Toro yearly until 1990. On April 22, 1990, the contract between Citibank and El Toro expired.

On June 7, 1990, respondent Citibank Integrated Guards Labor Alliance-SEGA-TUPAS/FSM (hereafter CIGLA) filed with the National Conciliation and Mediation Board (NCMB) a request for preventive mediation citing Citibank as respondent therein giving as issues for preventive mediation the following:

a) Unfair labor practice;b) Dismissal of union officers/members; andc) Union busting.

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On June 10, 1990, petitioner Citibank served on El Toro a written notice that the bank would not renew anymore the service agreement with the latter. Simultaneously, Citibank hired another security agency, the Golden Pyramid Security Agency.On the same date, respondent CIGLA manifested with the NCMB that it was converting its request for preventive mediation into a notice of strike for failure of the parties to reach a mutually acceptable settlement of the issues.Security guards formerly assigned to Citibank under the expired agreement loitered around and near the Citibank premises in large groups of from twenty (20) and at times fifty (50) persons. On June 14, 1990, respondent CIGLA filed a notice of strike directed at the premises of the Citibank main office.Faced with the prospect of disruption of its business operations, on June 5, 1990, petitioner Citibank filed with the Regional Trial Court, Makati, a complaint for injunction and damages against respondent CIGLA.

On June 18, 1990, respondent CIGLA filed with the trial court a motion to dismiss the complaint . The motion alleged that:

a) The Court had no jurisdiction, this being labor dispute.b) The guards were employees of the bank.c) There were pending cases/labor disputes between the guards and the bank at the different agencies of DOLE.d) The bank was guilty of forum shopping.

Trial court denied respondent CIGLA's motion to dismiss – “Jurisdiction of the court is determined by the allegations of the complaints. In the plaintiff's complaint there are allegations, which negate any employer-employee relationship between it and the CIGLA members.”

Respondent CIGLA filed with the trial court a motion for reconsideration of the above-mentioned order. On October 1, 1990, the trial court denied the motion.Respondent CIGLA filed with the trial court its answer to the complaint, and averred as special and affirmative defense lack of jurisdiction of the court over the subject matter of the case. Treating the averment as motion to dismiss, the lower court issued an order denying the motion.On May 24, 1991, respondent CIGLA filed with the Court of Appeals a petition for certiorari with preliminary injunction assailing the validity of the proceedings had before the regional trial court.After due proceedings, on March 31, 1992, the Court of Appeals promulgated its decision in respondent CIGLA's favor.On April 29, 1992, petitioner Citibank filed a motion for reconsideration of the decision. On February 12, 1993, the Court of Appeals denied the motion.

ISSUES:1. Whether it is the labor tribunal or the regional trial court that has jurisdiction over the subject matter of

the complaint filed by Citibank with the trial court. (Answer: RTC)2. Whether there is a labor dispute between Citibank and the security guards, members of respondent

CIGLA. (Answer: THERE IS NO LABOR DISPUTE.)

HELD:

1. The Labor Arbiter (labor tribunal) has no jurisdiction over a claim filed where no employer-employee relationship existed between a company and the security guards assigned to it by a security service contractor. In this case, it was the security agency El Toro that recruited, hired and assigned the watchmen to their place of work. It was the security agency that was answerable to Citibank for the conduct of its guards.

This Court has held in many cases that "in determining the existence of an employer-employee relationship, the following elements are generally considered:

1) the selection and engagement of the employee; 2) the payment of wages;

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3) the power of dismissal; and 4) the employer's power to control the employee with respect to the means and methods by which the workis to be accomplished".

It is a basic rule of procedure that jurisdiction of the court over the subject matter of the action is determined by the allegations of the complaint, irrespective of whether or not the plaintiff is entitled to recover upon all or some of the claims asserted therein.

On the basis of the allegations of the complaint, it is safe to conclude that the dispute involved is a civil one, not a labor dispute. Consequently, we rule that jurisdiction over the subject matter of the complaint lies with the regional trial court.

2. Article 212, paragraph l of the Labor Code provides the definition of a "LABOR DISPUTE". It "includes any controversy or matter concerning terms or conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing or arranging the terms and conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee."

If at all, the dispute between Citibank and El Toro security agency is one regarding the termination or non-renewal of the contract of services. This is a civil dispute. El Toro was an independent contractor. Thus, no employer-employee relationship existed between Citibank and the security guard members of the union in the security agency who were assigned to secure the bank's premises and property . Hence, there was no labor dispute and no right to strike against the bank.

WHEREFORE, the Court hereby GRANTS the petition for review on certiorari. Decision of the Court of Appeal REVERSED and SET ASIDE.

15. PHILIPPINE AIRLINES, INC., petitioner, vs., NATIONAL LABOR RELATIONS COMMISSION, FERDINAND PINEDA and GODOFREDO CABLING, respondents. [G.R. No. 120567. March 20, 1998]

FACTS

Private respondents (Ferdinand Pineda and Godofredo Cabling) are flight stewards of the petitioner. Both were dismissed from the service for their alleged involvement in the April 3, 1993 currency smuggling in Hong Kong.

One person in the name of Joseph Abaca was intercepted at the airport carrying a bag containing 2.5 million pesos who allegedly found said plastic bag at the Skybed section of arrival flight PR300/03 where private respondents served as flight attendants. After having been implicated by Abaca in the incident before the respondent’s disciplinary board, it is was Abaca himself who gave exculpating statements to the same board and declared that the private respondents were not the owners of the said currencies. that just as petitioners ‘thought that they were already fully cleared of the charges, as they no longer received any summons/notices on the intended ‘additional hearings’ mandated by the Disciplinary Board,’ that they were already fully cleared of the charges, as they no longer received any summons/notices on the intended ‘additional hearings’ mandated by the Disciplinary Board,’ they were surprised to find out that they were terminated by PAL.

Aggrieved by said dismissal, private respondents filed with the NLRC a petition for injunction praying that:"I. Upon filing of this Petition, a temporary restraining order be issued, prohibiting respondents (petitioner herein) from effecting or enforcing the Decision dated Feb. 22, 1995, or to reinstate petitioners temporarily while a hearing on the propriety of the issuance of a writ of preliminary injunction is being undertaken;

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"II. After hearing, a writ of preliminary mandatory injunction be issued ordering respondent to reinstate petitioners to their former positions pending the hearing of this case, or, prohibiting respondent from enforcing its Decision dated February 22,1995 while this case is pending adjudication;"III. After hearing, that the writ of preliminary injunction as to the reliefs sought for be made permanent, that petitioners be awarded full backwages, moral damages of PHP 500,000.00 each and exemplary damages of PHP 500,000.00 each, attorney’s fees equivalent to ten percent of whatever amount is awarded, and the costs of suit."

The NLRC issued the writ of injunction. PAL moved for reconsideration on the ground that has no jurisdiction to issue an injunction or restraining order since this may be issued only under Article 218 of the Labor Code if the case involves or arises from labor disputes and thereby divesting the labor arbiter of its original and exclusive jurisdiction over illegal dismissal cases.

ISSUE: W/N the NLRC acted with grave abuse of discretion on issuing the writ of injunction

HELD: Yes.

In labor cases, Article 218 of the Labor Code empowers the NLRC-"(e) To enjoin or restrain any actual or threatened commission of any or all prohibited or unlawful acts or to require the performance of a particular act in any labor dispute which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party.

Complementing the above-quoted provision, Sec. 1, Rule XI of the New Rules of Procedure of the NLRC, pertinently provides as follows:

"Section 1. Injunction in Ordinary Labor Dispute.-A preliminary injunction or a restraining order may be granted by the Commission through its divisions pursuant to the provisions of paragraph (e) of Article 218 of the Labor Code, as amended, when it is established on the bases of the sworn allegations in the petition that the acts complained of, involving or arising from any labor dispute before the Commission, which, if not restrained or performed forthwith, may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party.

From the foregoing provisions of law, the power of the NLRC to issue an injunctive writ originates from "any labor dispute" upon application by a party thereof, which application if not granted "may cause grave or irreparable damage to any party or render ineffectual any decision in favor of such party."

The term "labor dispute" is defined as "any controversy or matter concerning terms and conditions of employment or the association or representation of persons in negotiating, fixing, maintaining, changing, or arranging the terms and conditions of employment regardless of whether or not the disputants stand in the proximate relation of employers and employees."

The petition for injunction directly filed before the NLRC is in reality an action for illegal dismissal. This is clear from the allegations in the petition which prays for: reinstatement of private respondents; award of full backwages, moral and exemplary damages; and attorney's fees. As such, the petition should have been filed with the labor arbiter who has the original and exclusive jurisdiction to hear and decide the following cases involving all workers, whether agricultural or non-agricultural:(1) Unfair labor practice; (2) Termination disputes;(3) If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment;(4) Claims for actual, moral, exemplary and other forms of damages arising from the employer- employee relations;(5) Cases arising from any violation of Article 264 of this Code, including questions involving the legality

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of strikes and lockouts; and(6) Except claims for employees compensation, social security, medicare and maternity benefits, all other claims arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P 5,000.00), whether or not accompanied with a claim for reinstatement.

The jurisdiction conferred by the foregoing legal provision to the labor arbiter is both original and exclusive, meaning, no other officer or tribunal can take cognizance of, hear and decide any of the cases therein enumerated. The only exceptions are where the Secretary of Labor and Employment or the NLRC exercises the power of compulsory arbitration, or the parties agree to submit the matter to voluntary arbitration pursuant to Article 263 (g) of the Labor Code.

On the other hand, the NLRC shall have exclusive appellate jurisdiction over all cases decided by labor arbiters as provided in Article 217(b) of the Labor Code. In short, the jurisdiction of the NLRC in illegal dismissal cases is appellate in nature and, therefore, it cannot entertain the private respondents' petition for injunction which challenges the dismissal orders of petitioner. Article 218(e) of the Labor Code does not provide blanket authority to the NLRC or any of its divisions to issue writs of injunction, considering that Section 1 of Rule XI of the New Rules of Procedure of the NLRC makes injunction only an ancillary remedy in ordinary labor disputes.

16. CHARLITO PEÑARANDA, Petitioner, vs. BAGANGA PLYWOOD CORPORATION and HUDSON CHUA, Respondents. [G.R. No. 159577, May 3, 2006]

Ponente: Panganiban, C.J.

FACTS: Sometime in June 1999: Petitioner Charlito Peñaranda was hired as an employee of Baganga Plywood

Corporation (BPC) to take charge of the operations and maintenance of its steam plant boiler. May 2001:Peñaranda filed a Complaint for illegal dismissal with money claims against BPC and its general

manager, Hudson Chua, before the NLRC. The parties failed to settle amicably. They alleged the following before the Labor Arbiter:

Peñaranda1) He was employed by respondent on March 15, 1999 with a monthly salary of P5,000.00 as

Foreman/Boiler Head/Shift Engineer until he was illegally terminated on December 19, 2000.2) His services were terminated without due process and valid grounds in accordance with law.3) He was not paid his overtime pay, premium pay for working duringholidays/rest days, night shift

differentials and claims for payment of damages and attorney’s fees (having been forced to litigate the complaint).

BPC1) Complainant’s separation from service was done pursuant to Art. 283 of the Labor Code.2) BPC was on temporary closure due to repair and general maintenance. It applied for clearance with

the Department of Labor and Employment, Regional Office No. XI to shut down and to dismiss employees. Due to complainant’s insistence, he was paid his separation benefits.When BPC partially reopened in January 2001, Peñaranda failed to reapply. Hence, he was not terminated from employment, much less illegally. He severed employment when he insisted on payment of his separation benefits. Furthermore, being a managerial employee he is not entitled to overtime pay. If he ever rendered services beyond the normal hours of work, there was no office order/or authorization for him to do so.

3) The claim for damages has no legal and factual basis, and the instant complaint must necessarily fail for lack of merit.

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Labor Arbiter’s Ruling: There was no illegal dismissal. Petitioner’s Complaint was premature, because he was still employed by BPC. The temporary closure of

BPC’s plant did not terminate his employment. Hence, he need not reapply when the plant reopened. Petitioner’s money claims for illegal dismissal was weakened by his quitclaim and admission during the

clarificatory conference that he accepted separation benefits, sick and vacation leave conversions and thirteenth month pay.

Petitioner was entitled to overtime pay, premium pay for working on rest days, and attorney’s fees in the total amount of P21,257.98.

NLRC’s Ruling (May 8 and August 16, 2002):Respondents filed an appeal to the NLRC, which deleted the award of overtime pay and premium pay for working on rest days. According to the Commission, petitioner was not entitled to these awards, because he was a managerial employee.

CA’s Ruling: In its Resolution dated January 27, 2003, the CA dismissed Peñaranda’s Petition for Certiorari, because he

failed to: 1) Attach copies of the pleadings submitted before the labor arbiter and NLRC; and 2) Explain why the filing and service of the Petition was not done by personal service.

In its Resolution dated July 4, 2003, the CA denied reconsideration on the ground that petitioner still failed to submit the pleadings filed before the NLRC.

Petitioner filed a Petition for Review under Rule 45 of the Rules of Court with the Supreme Court.

ISSUES: Did the NLRC commit grave abuse of discretion amounting to excess or lack of jurisdiction when it entertained

the respondents’ appeal despite the lapse of the mandatory period ten-day period? (NOT LABOR-RELATED ISSUE)

Did the NLRC commit grave abuse of discretion amounting to an excess or lack of jurisdiction when it rendered the assailed RESOLUTIONS REVERSING AND SETTING ASIDE the Labor Arbiter’sfindings that Peñaranda was: A regular, common employee entitled to monetary benefits under Art. 82 of the Labor Code, and Entitled to the payment of OVERTIME PAY and OTHER MONETARY BENEFITS?

HELD: ISSUE #1:(NOT LABOR-RELATED ISSUE)NO.

Under the Rule VI, Sec. 1 of the New Rules of Procedure of the NLRC, an appeal from the decision of the labor arbiter should be filed within 10 days from receipt thereof.The parties alleging non-compliance with such rule have the burden of substantiating their allegations.

Petitioner’s claim that respondents filed their appeal beyond the required period was not substantiated. 1) He failed to indicate when respondents received the labor arbiter’s Decision. 2) He did not attach a copy of the challenged appeal. Thus, the Court had no means to determine when the 10-day period commenced and terminated.

ISSUE #2: NO. Article 82 of the Labor Code exempts managerial employees from the coverage of labor standards. Labor

standards provide the working conditions of employees, including entitlement to overtime pay and premium pay for working on rest days. Under this provision, managerial employees are "those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision."

Rule 1, Sec. 2(b) of Book III of theImplementing Rules of the Labor Code state that managerial employees are those who meet the following conditions:1) Their primary duty consists of the management of the establishment in which they are employed or

of a department or subdivision thereof;2) They customarily and regularly direct the work of two or more employees therein;

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3) They have the authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to the hiring and firing and as to the promotion or any other change of status of other employees are given particular weight.

While the Court disagreed with the NLRC’s finding that petitioner was a managerial employee, it ruled that he was a member of the managerial staff, which also takes him out of the coverage of labor standards. Rule 1, Sec. 2(c) of Book III of the Implementing Rules of the Labor Code define members of a managerial staff as those with the following duties and responsibilities:1) The primary duty consists of the performance of work directly related to management policies of the

employer;2) Customarily and regularly exercise discretion and independent judgment;3) (i) Regularly and directly assist a proprietor or a managerial employee whose primary duty consists of

the management of the establishment in which he is employed or subdivision thereof; or (ii) execute under general supervision work along specialized or technical lines requiring special training, experience, or knowledge; or (iii) execute under general supervision special assignments and tasks; and

4) Who do not devote more than 20% of their hours worked in a workweek to activities which are not directly and closely related to the performance of the work described in paragraphs (1), (2), and (3).

As shift engineer, petitioner’s duties and responsibilities were as follows:1) To supply the required and continuous steam to all consuming units at minimum cost.*2) To supervise, check and monitor manpower workmanship as well as operation of boiler and

accessories.*3) To evaluate performance of machinery and manpower.*4) To follow-up supply of waste and other materials for fuel.5) To train new employees for effective and safety while working.*6) Recommend parts and supplies purchases.7) To recommend personnel actions such as: promotion, or disciplinary action.*8) To check water from the boiler, feedwater and softener, regenerate softener if beyond hardness

limit.9) Implement Chemical Dosing.10) Perform other task as required by the superior from time to time.

The foregoing enumeration, particularly items 1, 2, 3, 5 and 7, illustrated that petitioner’s duties and responsibilities conformed to the definition of a member of a managerial staff under the Implementing Rules.He supervised the engineering section of the steam plant boiler (i.e. oversaw the operation of the machines and the performance of the workers in the engineering section). This work necessarily required the use of discretion and independent judgment. As supervisor, petitioner was a member of the managerial staff.Even petitioner admitted that he was a supervisor. In his Position Paper, he stated that he was the foreman responsible for the operation of the boiler. The term foreman implies that he was the representative of management over the workers and the operation of the department.Petitioner’s evidence also showed that he was the supervisor of the steam plant.His classification as supervisor is further evident from the manner his salary was paid. He belonged to the 10% of respondent’s 354 employees who were paid on a monthly basis; the others were paid only on a daily basis.

The Court finds no justification to award overtime pay and premium pay for rest days to petitioner.Petition denied with costs against petitioner.

17. SAMAHANG MANGGAGAWA SA CHARTER CHEMICAL SOLIDARITY OF UNIONS IN THE PHILIPPINES FOR EMPOWERMENT AND REFORMS (SMCC-SUPER), ZACARRIAS JERRY VICTORIO-Union President, Petitioner,

vs.CHARTER CHEMICAL and COATING CORPORATION, Respondent.

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[G.R. No. 169717, March 16, 2011]

DEL CASTILLO, J.:

18. JUMUAD V. HI-FLYER FOOD, INC [G.R. No. 187887 September 7, 2011]

MENDOZA, J.:FACTS:

1. Jumuad was Area Manager in KFC Gaisano Mall, Cebu City (KFC-Gaisano); in Cocomall, Cebu City (KFC-Cocomall); and in Island City Mall, Bohol (KFC-Bohol).

2. Hi Flyer conducted a food safety, service and sanitation audit at KFC-Gaisano. Several sanitation violations were found, such as presence of rodents and a defective chiller used for food storage.

3. Hi-Flyer audited the accounts of KFC-Bohol. It was discovered that there was, 1) cash shortage amounting to ₱62,290.85; 2) delay in the deposits of cash sales by an average of three days; 3) the presence of two sealed cash-for-deposit envelopes containing paper cut-outs instead of cash; 4) falsified entries in the deposit logbook; 5) lapses in inventory control; and 6) material product spoilage.

4. In KFC-Cocomall branch, grout and leaks at the branchs kitchen wall, dried up spills from the marinator, as well as a live rat under postmix, and signs of rodent gnawing/infestation were found.

5. Hi-Flyer served Jumuad a Notice of Dismissal.6. Jumuad filed a Complaint against Hi-Flyer and/or Jesus R. Montemayor for ILLEGAL DISMISSAL before the

NLRC on October 17, 2005, praying for reinstatement and payment of separation pay, 13th month pay, service incentive leave, moral and exemplary damages, and attorneys fees.

7. The LA (Labor Arbiter) ruled that Jumuad was illegally dismissed. No serious cause for termination existed.8. Jumuad appealed to the NLRC. He faulted the LA for not awarding backwages and damages despite its

finding that she was illegally dismissed.9. Hi-Flyer and Montemayor also appealed to the NLRC. Assailed the finding thatJumuad was illegally

dismissed.10. The NLRC affirmed in toto the LA decision. Dismissal of Jumuad was too harsh. Even before the

Irregularities Report and Notice of Charges to Jumuad, e-mails between Montemayor and officers of Hi-Flyer showed that Hi-Flyer was already determined to terminate Jumuad. Proof that Jumuad was denied due process considering that no matter how she would refute the charges hurled against her, the decision of Hi-Flyer to terminate her would not change.

11. Both Jumuad and Hi-Flyer sought reconsideration of the NLRC Decision but their motions were denied.12. Hi-Flyer appealed the case before the CA in Cebu City. Alleging grave abuse of discretion on the part of the

NLRC.13. CA reversed the decision of the labor tribunal. Requirements of substantive and procedural due process

were complied with. Jumuad had an opportunity to be heard when she submitted her written explanation and then, when she was informed of the decision and the basis of her termination.

The e-mails did not equate to a predetermination of Jumuads termination. The e-mail exchanges were mere discussions between Montemayor and other officers of Hi-Flyer on whether grounds for disciplinary action or termination existed. The e-mails just showed that Hi-Flyer extensively deliberated the nature and cause of the charges against Jumuad.

The unacceptable sanitary conditions and the cash shortages at 3 of the 7 KFC branches supervised by Jumuad are enough bases for Hi-Flyer to lose its trust and confidence in her.

14. Hence, Jumuad filed a Petition for Review on Certiorari before the SC.

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ISSUE: W/N Jumuad was illegally dismissed.

HELD: No. Art. 282. Termination by Employer. An employer may terminate an employment for any of the following causes:(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; (b) Gross and habitual neglect by the employee of his duties;(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; (d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and (e) Other causes analogous to the foregoing.

To warrant removal from service for gross and habitual neglect of duty, it must be shown that the negligence should not merely be gross, but also habitual. In breach of trust and confidence, so long as it is shown there is some basis for management to lose its trust and confidence and that the dismissal was not used as an occasion for abuse. In this case, Jumuad willfully breached her duties as to be unworthy of the trust and confidence of Hi-Flyer.Jumuad was a managerial employee. Jumuad executed management policies and had the power to discipline the employees of KFC. Article 212 (m) of the Labor Code defines a managerial employee as one who is vested with powers or prerogatives to lay down and execute management policies and/or hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees.

The reports show that there were anomalies committed in the branches Jumuad managed. On the principle of respondeat superior or command responsibility alone, Jumuad may be held liable for negligence in the performance of her managerial duties. She may not have been directly involved in causing the cash shortages in KFC-Bohol, but she also did not perform her duty monitoring and supporting the day to day operations of the branches and ensure that all the facilities and equipment were properly maintained and serviced which could have prevented the anomalies.Rather than taking proactive steps to prevent the anomalies at her branches, Jumuad merely effected remedial measures. In the restaurant business where the health and well-being of the consuming public is at stake, this does not suffice.

Based on established facts, the mere existence of the grounds for the loss of trust and confidence justifies petitioners dismissal.Hi-Flyer exercised in good faith its management prerogative as there is no dispute that it has lost trust and confidence in her and her managerial abilities, to its damage and prejudice. Her dismissal, was therefore, justified. The law imposes many obligations on the employer such as providing just compensation to workers, observance of the procedural requirements of notice and hearing in the termination of employment. On the other hand, the law also recognizes the right of the employer to expect from its workers not only good performance, adequate work and diligence, but also good conduct and loyalty. The employer may not be compelled to continue to employ such persons whose continuance in the service will patently be inimical to its interests.

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Labrel Case Digests (Set 1)

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Transcript of Labrel Case Digests (Set 1)