[G.R. No. 192558. February 15, 2012.] BITOY JAVIER (DANILO P. JAVIER), petitioner, vs. FLY ACE CORPORATION/FLORDELYN CASTILLO, respondents. DECISION MENDOZA, J p: This is a petition under Rule 45 of the Rules of Civil Procedure assailing the March 18, 2010 Decision 1 of the Court of Appeals (CA) and its June 7, 2010 Resolution, 2 in CA-G.R. SP No. 109975, which reversed the May 28, 2009 Decision 3 of the National Labor Relations Commission (NLRC) in the case entitled Bitoy Javier v. Fly Ace/Flordelyn Castillo, 4 holding that petitioner Bitoy Javier (Javier) was illegally dismissed from employment and ordering Fly Ace Corporation (Fly Ace) to pay backwages and separation pay in lieu of reinstatement. Antecedent Facts On May 23, 2008, Javier filed a complaint before the NLRC for underpayment of salaries and other labor standard benefits. He alleged that he was an employee of Fly Ace since September 2007, performing various tasks at the respondent's 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; that he reported for work from Monday to Saturday from 7:00 o'clock in the morning to 5:00 o'clock in the afternoon; that during his employment, he was not issued an identification card and
Transcript
[G.R. No. 192558. February 15, 2012.]
BITOY JAVIER (DANILO P. JAVIER), petitioner, vs. FLY ACE
CORPORATION/FLORDELYN CASTILLO, respondents.
DECISION
MENDOZA, J p:
This is a petition under Rule 45 of the Rules of Civil Procedure assailing the
March 18, 2010 Decision 1 of the Court of Appeals (CA) and its June 7, 2010
Resolution, 2 in CA-G.R. SP No. 109975, which reversed the May 28, 2009
Decision 3 of the National Labor Relations Commission (NLRC) in the case
entitled Bitoy Javier v. Fly Ace/Flordelyn Castillo, 4 holding that petitioner Bitoy
Javier (Javier) was illegally dismissed from employment and ordering Fly Ace
Corporation (Fly Ace) to pay backwages and separation pay in lieu of
reinstatement.
Antecedent Facts
On May 23, 2008, Javier filed a complaint before the NLRC for underpayment of
salaries and other labor standard benefits. He alleged that he was an employee
of Fly Ace since September 2007, performing various tasks at the respondent's
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; that he reported for
work from Monday to Saturday from 7:00 o'clock in the morning to 5:00 o'clock in
the afternoon; that during his employment, he was not issued an identification
card and payslips by the company; 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; 5 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; that
Ong replied by saying, "Tanungin mo anak mo;" 6 that he then went home and
discussed the matter with his family; that he discovered that Ong had been
courting his daughter Annalyn after the two met at a fiesta celebration in Malabon
City; that Annalyn tried to talk to Ong and convince him to spare her father from
trouble but he refused to accede; that thereafter, Javier was terminated from his
employment without notice; and that he was neither given the opportunity to
refute the cause/s of his dismissal from work. IASCTD
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). 7
For its part, 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
P300.00 per trip, which was later increased to P325.00 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. 8 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
latter's signatures/initials.
Ruling of the 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. He wrote:
Complainant has no employee ID showing his employment with the
Respondent nor any document showing that he received the benefits
accorded to regular employees of the Respondents. 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.
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.
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.
xxx xxx xxx
Hence, as complainant received the rightful salary as shown by the
above described payrolls, Respondents are not liable for salary
differentials. 9 AEDcIH
Ruling of the 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. "Payment by result . . . is a method of compensation and
does not define the essence of the relation. It is a mere method of computing
compensation, not a basis for determining the existence or absence of an
employer-employee relationship." 10 The NLRC further averred that it did not
follow that a worker was a job contractor and not an employee, just because the
work he was doing was not directly related to the employer's trade or business or
the work may be considered as "extra" helper as in this case; and that the
relationship of an employer and an employee was determined by law and the
same would prevail whatever the parties may call it. In this case, the NLRC held
that substantial evidence was sufficient basis for judgment on the existence of
the employer-employee relationship. Javier was a regular employee of Fly Ace
because there was reasonable connection between the particular activity
performed by the employee (as a 'pahinante') in relation to the usual business or
trade of the employer (importation, sales and delivery of groceries). He may not
be considered as an independent contractor because he could not exercise any
judgment in the delivery of company products. He was only engaged as a
"helper."
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 and separation pay in lieu of reinstatement. The NLRC
thus ordered:
WHEREFORE, premises considered, complainant's appeal is partially
GRANTED. The assailed Decision of the labor arbiter is VACATED and
a new one is hereby entered holding respondent FLY ACE
CORPORATION guilty of illegal dismissal and non-payment of 13th
month pay. Consequently, it is hereby ordered to pay complainant
DANILO "Bitoy" JAVIER the following:
1. Backwages - P45,770.83
2. Separation pay, in lieu of reinstatement - 8,450.00
pay, vacation/sick leaves and 13th month pay in NLRC-NCR Case No. 30-12-
00985-99. She likewise demanded payment for moral, exemplary and actual
damages, as well as for attorney's fees.
The parties agreed to submit the case for resolution after settlement failed during
the mandatory conference/conciliation. On March 29, 2000, the Labor Arbiter
dismissed the complaint. 9
On appeal, the NLRC reversed the Labor Arbiter in a Resolution dated August
30, 2000. The NLRC held that an employer-employee relationship existed
between petitioner and ABC; that the subject talent contract was void; that the
petitioner was a regular employee illegally dismissed; and that she was entitled
to reinstatement and backwages or separation pay, aside from 13th month pay
and service incentive leave pay, moral and exemplary damages and attorney's
fees. It held as follows: ADEacC
WHEREFORE, the Decision of the Arbiter dated 29 March 2000 is
hereby REVERSED/SET ASIDE and a NEW ONE promulgated:
1) declaring respondents to have illegally dismissed complainant from
her regular work therein and thus, ordering them to reinstate her in her
former position without loss of seniority right[s] and other privileges and
to pay her full backwages, inclusive of allowances and other benefits,
including 13th month pay based on her said latest rate of
P28,000.00/mo. from the date of her illegal dismissal on 21 October
1999 up to finality hereof, or at complainant's option, to pay her
separation pay of one (1) month pay per year of service based on said
latest monthly rate, reckoned from date of hire on 30 September 1995
until finality hereof;
2) to pay complainant's accrued SILP [Service Incentive Leave Pay] of 5
days pay per year and 13th month pay for the years 1999, 1998 and
1997 of P19,236.00 and P84,000.00, respectively and her accrued
salary from 16 September 1999 to 20 October 1999 of P32,760.00 plus
legal interest at 12% from date of judicial demand on 20 December 1999
until finality hereof;
3) to pay complainant moral damages of P500,000.00, exemplary
damages of P350,000.00 and 10% of the total of the adjudged monetary
awards as attorney's fees.
Other monetary claims of complainant are dismissed for lack of merit. TEcADS
SO ORDERED. 10
After its motion for reconsideration was denied, ABC elevated the case to the
Court of Appeals in a petition for certiorari under Rule 65. The petition was first
dismissed for failure to attach particular documents, 11 but was reinstated on
grounds of the higher interest of justice. 12
Thereafter, the appellate court ruled that the NLRC committed grave abuse of
discretion, and reversed the decision of the NLRC. 13 The appellate court
reasoned that petitioner should not be allowed to renege from the stipulations
she had voluntarily and knowingly executed by invoking the security of tenure
under the Labor Code. According to the appellate court, petitioner was a fixed-
term employee and not a regular employee within the ambit of Article 280 14 of
the Labor Code because her job, as anticipated and agreed upon, was only for a
specified time. 15
Aggrieved, petitioner now comes to this Court on a petition for review, raising
issues as follows:
I.
THIS HONORABLE COURT CAN REVIEW THE FINDINGS OF THE
HONORABLE COURT OF APPEALS, THE DECISION OF WHICH IS
NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE
DECISIONS OF THE SUPREME COURT[;]
II.
THE PRO-FORMA TALENT CONTRACTS, AS CORRECTLY FOUND
BY THE NLRC — FIRST DIVISION, ARE "ANTI-REGULARIZATION
DEVICES" WHICH MUST BE STRUCK DOWN FOR REASONS OF
PUBLIC POLICY[;]
III.
BY REASON OF THE CONTINUOUS AND SUCCESSIVE RENEWALS
OF THE THREE-MONTH TALENT CONTRACTS, AN EMPLOYER-
EMPLOYEE RELATIONSHIP WAS CREATED AS PROVIDED FOR
UNDER ARTICLE 280 OF THE LABOR CODE[;]
IV.
BY THE CONSTRUCTIVE DISMISSAL OF HEREIN PETITIONER, AS A
REGULAR EMPLOYEE, THERE WAS A DENIAL OF PETITIONER'S
RIGHT TO DUE PROCESS THUS ENTITLING HER TO THE MONEY
CLAIMS AS STATED IN THE COMPLAINT[.] 16
The issues for our disposition are: (1) whether or not this Court can review the
findings of the Court of Appeals; and (2) whether or not under Rule 45 of the
Rules of Court the Court of Appeals committed a reversible error in its
Decision. SITCEA
On the first issue, private respondents contend that the issues raised in the
instant petition are mainly factual and that there is no showing that the said
issues have been resolved arbitrarily and without basis. They add that the
findings of the Court of Appeals are supported by overwhelming wealth of
evidence on record as well as prevailing jurisprudence on the matter. 17
Petitioner however contends that this Court can review the findings of the Court
of Appeals, since the appellate court erred in deciding a question of substance in
a way which is not in accord with law or with applicable decisions of this Court. 18
We agree with petitioner. Decisions, final orders or resolutions of the Court of
Appeals in any case — regardless of the nature of the action or proceeding
involved — may be appealed to this Court through a petition for review. This
remedy is a continuation of the appellate process over the original case, 19 and
considering there is no congruence in the findings of the NLRC and the Court of
Appeals regarding the status of employment of petitioner, an exception to the
general rule that this Court is bound by the findings of facts of the appellate
court, 20 we can review such findings.
On the second issue, private respondents contend that the Court of Appeals did
not err when it upheld the validity of the talent contracts voluntarily entered into
by petitioner. It further stated that prevailing jurisprudence has recognized and
sustained the absence of employer-employee relationship between a talent and
the media entity which engaged the talent's services on a per talent contract
basis, citing the case of Sonza v. ABS-CBN Broadcasting Corporation. 21
Petitioner avers however that an employer-employee relationship was created
when the private respondents started to merely renew the contracts repeatedly
fifteen times or for four consecutive years. 22
Again, we agree with petitioner. The Court of Appeals committed reversible error
when it held that petitioner was a fixed-term employee. Petitioner was a regular
employee under contemplation of law. The practice of having fixed-term
contracts in the industry does not automatically make all talent contracts valid
and compliant with labor law. The assertion that a talent contract exists does not
necessarily prevent a regular employment status. 23
Further, the Sonza case is not applicable. In Sonza, the television station did not
instruct Sonza how to perform his job. How Sonza delivered his lines, appeared
on television, and sounded on radio were outside the television station's control.
Sonza had a free hand on what to say or discuss in his shows provided he did
not attack the television station or its interests. Clearly, the television station did
not exercise control over the means and methods of the performance of Sonza's
work. 24 In the case at bar, ABC had control over the performance of petitioner's
work. Noteworthy too, is the comparatively low P28,000 monthly pay of
petitioner 25 vis the P300,000 a month salary of Sonza, 26 that all the more
bolsters the conclusion that petitioner was not in the same situation as Sonza. HCEcAa
The contract of employment of petitioner with ABC had the following stipulations:
xxx xxx xxx
1. SCOPE OF SERVICES — TALENT agrees to devote his/her talent,
time, attention and best efforts in the performance of his/her duties and
responsibilities as Anchor/Program Host/Newscaster of the Program, in
accordance with the direction of ABC and/or its authorized
representatives.
1.1. DUTIES AND RESPONSIBILITIES — TALENT shall:
a. Render his/her services as a newscaster on the
Program;
b. Be involved in news-gathering operations by
conducting interviews on- and off-the-air;
c. Participate in live remote coverages when called
upon;
d. Be available for any other news assignment, such
as writing, research or camera work;
e. Attend production meetings;
f. On assigned days, be at the studios at least one
(1) hour before the live telecasts;
g. Be present promptly at the studios and/or other
place of assignment at the time designated by ABC;
h. Keep abreast of the news;
i. Give his/her full cooperation to ABC and its duly
authorized representatives in the production and promotion
of the Program; and
j. Perform such other functions as may be assigned
to him/her from time to time. HTCSDE
xxx xxx xxx
1.3 COMPLIANCE WITH STANDARDS, INSTRUCTIONS AND
OTHER RULES AND REGULATIONS — TALENT agrees that
he/she will promptly and faithfully comply with the requests and
instructions, as well as the program standards, policies, rules and
regulations of ABC, the KBP and the government or any of its
agencies and instrumentalities. 27
xxx xxx xxx
In Manila Water Company, Inc. v. Pena, 28 we said that the elements to
determine the existence of an employment relationship are: (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 most important element is
the employer's control of the employee's conduct, not only as to the result of the
work to be done, but also as to the means and methods to accomplish it. 29
The duties of petitioner as enumerated in her employment contract indicate that
ABC had control over the work of petitioner. Aside from control, ABC also
dictated the work assignments and payment of petitioner's wages. ABC also had
power to dismiss her. All these being present, clearly, there existed an
employment relationship between petitioner and ABC.
Concerning regular employment, the law provides for two kinds of employees,
namely: (1) those who are engaged to perform activities which are usually
necessary or desirable in the usual business or trade of the employer; and (2)
those who have rendered at least one year of service, whether continuous or
broken, with respect to the activity in which they are employed. 30 In other words,
regular status arises from either the nature of work of the employee or the
duration of his employment. 31 InBenares v. Pancho, 32 we very succinctly
said: IHaCDE
. . . [T]he primary standard for determining regular employment is the
reasonable connection between the particular activity performed by the
employee vis-à-vis the usual trade or business of the employer. This
connection can be determined by considering the nature of the work
performed and its relation to the scheme of the particular business or
trade in its entirety. If the employee has been performing the job for at
least a year, even if the performance is not continuous and merely
intermittent, the law deems repeated and continuing need for its
performance as sufficient evidence of the necessity if not indispensability
of that activity to the business. Hence, the employment is considered
regular, but only with respect to such activity and while such activity
exists. 33
In our view, the requisites for regularity of employment have been met in the
instant case. Gleaned from the description of the scope of services
aforementioned, petitioner's work was necessary or desirable in the usual
business or trade of the employer which includes, as a pre-condition for its
enfranchisement, its participation in the government's news and public
information dissemination. In addition, her work was continuous for a period of
four years. This repeated engagement under contract of hire is indicative of the
necessity and desirability of the petitioner's work in private respondent ABC's
business. 34
The contention of the appellate court that the contract was characterized by a
valid fixed-period employment is untenable. For such contract to be valid, it
should be shown that the fixed period was knowingly and voluntarily agreed upon
by the parties. There should have been no force, duress or improper pressure
brought to bear upon the employee; neither should there be any other
circumstance that vitiates the employee's consent. 35 It should satisfactorily
appear that the employer and the employee dealt with each other on more or
less equal terms with no moral dominance being exercised by the employer over
the employee. 36 Moreover, fixed-term employment will not be considered valid
where, from the circumstances, it is apparent that periods have been imposed to
preclude acquisition of tenurial security by the employee. 37
In the case at bar, it does not appear that the employer and employee dealt with
each other on equal terms. Understandably, the petitioner could not object to the
terms of her employment contract because she did not want to lose the job that
she loved and the workplace that she had grown accustomed to, 38 which is
exactly what happened when she finally manifested her intention to negotiate.
Being one of the numerous newscasters/broadcasters of ABC and desiring to
keep her job as a broadcasting practitioner, petitioner was left with no choice but
to affix her signature of conformity on each renewal of her contract as already
prepared by private respondents; otherwise, private respondents would have
simply refused to renew her contract. Patently, the petitioner occupied a position
of weakness vis-à-vis the employer. Moreover, private respondents' practice of
repeatedly extending petitioner's 3-month contract for four years is a
circumvention of the acquisition of regular status. Hence, there was no valid
fixed-term employment between petitioner and private respondents.
While this Court has recognized the validity of fixed-term employment contracts
in a number of cases, it has consistently emphasized that when the
circumstances of a case show that the periods were imposed to block the
acquisition of security of tenure, they should be struck down for being contrary to
law, morals, good customs, public order or public policy. 39
As a regular employee, petitioner is entitled to security of tenure and can be
dismissed only for just cause and after due compliance with procedural due
process. Since private respondents did not observe due process in constructively
dismissing the petitioner, we hold that there was an illegal dismissal.
WHEREFORE, the challenged Decision dated January 30, 2004 and Resolution
dated June 23, 2004 of the Court of Appeals in CA-G.R. SP No. 63125, which
held that the petitioner was a fixed-term employee, are REVERSED and SET
ASIDE. The NLRC decision is AFFIRMED.
Costs against private respondents.
SO ORDERED. acCDSH
||| (Dumpit-Murillo v. Court of Appeals, G.R. No. 164652, [June 8, 2007], 551 PHIL 725-741)
[G.R. No. 168424. June 8, 2007.]
CONSOLIDATED BROADCASTING SYSTEM,
INC., petitioner, vs. DANNY OBERIO, ELNA DE PEDRO,
LUISITO VILLAMOR, WILMA SUGATON, RUFO DEITA, JR.,
EMILY DE GUZMAN, CAROLINE LADRILLO, JOSE ROBERTO
REGALADO, ROSEBEL NARCISO & ANANITA
TANGETE, respondents.
D E C I S I O N
YNARES-SANTIAGO, J p:
Assailed in this petition for review is the July 30, 2004 Decision 1 of the Court of
Appeals in CA-G.R. SP No. 77098, which affirmed the December 5, 2001
Decision 2 of the National Labor Relations Commission (NLRC) holding that
respondents were regular employees of petitioner and that they were illegally
dismissed.
Respondents alleged that they were employed as drama talents by DYWB-
Bombo Radyo, a radio station owned and operated by
petitioner Consolidated Broadcasting System, Inc. They reported for work daily
for six days in a week and were required to record their drama production in
advance. Some of them were employed by petitioner since 1974, while the latest
one was hired in 1997. 3 Their drama programs were aired not only in Bacolod
City but also in the sister stations of DYWB in the Visayas and Mindanao areas. 4
Sometime in August 1998, petitioner reduced the number of its drama
productions from 14 to 11, but was opposed by respondents. After the
negotiations failed, the latter sought the intervention of the Department of Labor
and Employment (DOLE), which on November 12, 1998, conducted through its
Regional Office, an inspection of DYWB station. The results thereof revealed that
petitioner is guilty of violation of labor standard laws, such as underpayment of
wages, 13th month pay, non-payment of service incentive leave pay, and non-
coverage of respondents under the Social Security System. aHICDc
Petitioner contended that respondents are not its employees and refused to
submit the payroll and daily time records despite the subpoena duces
tecum issued by the DOLE Regional Director. Petitioner further argued that the
case should be referred to the NLRC because the Regional Director has no
jurisdiction over the determination of the existence of employer-employee
relationship which involves evidentiary matters that are not verifiable in the
normal course of inspection.
Vexed by the respondents' complaint, petitioner allegedly pressured and
intimidated respondents. Respondents Oberio and Delta were suspended for
minor lapses and the payment of their salaries were purportedly delayed.
Eventually, on February 3, 1999, pending the outcome of the inspection case
with the Regional Director, respondents were barred by petitioner from reporting
for work; thus, the former claimed constructive dismissal. 5
On April 8, 1999, the DOLE Regional Director issued an order directing petitioner
to pay respondents a total of P318,986.74 representing
non-payment/underpayment of the salary and benefits due them. 6 However, on
July 8, 1999, the Regional Director reconsidered the April 8, 1999 order and
certified the records of the case to the NLRC, Regional Arbitration Branch VI, for
determination of employer-employee relationship. 7 Respondents appealed said
order to the Secretary of Labor.
On October 12, 1999, respondents filed a case for illegal dismissal,
underpayment/non-payment of wages and benefits plus damages against
petitioner. On April 10, 2000, the Labor Arbiter dismissed the case without
prejudice while waiting for the decision of the Secretary of Labor on the same
issue of the existence of an employer-employee relationship between petitioner
and respondents.
On appeal to the NLRC, respondents raised the issue of employer-employee
relationship and submitted the following to prove the existence of such
relationship, to wit: time cards, identification cards, payroll, a show cause order of
the station manager to respondent Danny Oberio and memoranda either noted or
issued by said manager. Petitioner, on the other hand, did not present any
documentary evidence in its behalf and merely denied the allegations of
respondents. It claimed that the radio station pays for the drama recorded by
piece and that it has no control over the conduct of respondents.
On December 5, 2001, the NLRC rendered a decision holding that respondents
were regular employees of petitioner who were illegally dismissed by the latter. It
further held that respondents complied with the requirements of the rule on forum
shopping. The decretal portion thereof, provides:
WHEREFORE, premises considered, the decision of Labor Arbiter Ray
Alan T. Drilon dated 10 April 2000 is SET ASIDE and VACATED and a
new one entered.
Ordering respondent Consolidated Broadcasting System, Inc. (Bombo
Radyo Philippines), DYWB to reinstate the complainants without loss of
seniority rights wi[th] full back wages computed from February 1999 up
to the time of actual reinstatement. TaEIcS
SO ORDERED. 8
Hence, petitioner filed the instant recourse.
The issues for resolution are as follows: (1) Did respondents violate the rule on
forum shopping; (2) whether the NLRC correctly ruled on the merits of the case
instead of remanding the case to the Labor Arbiter; (3) whether respondents
were employees of petitioner; and (4) whether their dismissal was illegal.
Respondents' complaint in the inspection case before the DOLE Regional
Director alleged that they were under the employ of petitioner at the time of the
filing of said complaint. Pending the resolution thereof, they claimed to have been
dismissed; hence, the filing of the present illegal dismissal case before the Labor
Arbiter. The causes of action in these two complaints are different, i.e., one for
violation of labor standard laws, and the other, for illegal dismissal, but the
entitlement of respondents to the reliefs prayed for hinges on the same issue of
the existence of an employer-employee relationship. While the decision on the
said issue by one tribunal may operate as res judicata on the other, dismissal of
the present illegal dismissal case on the ground of forum shopping, would work
injustice to respondents because it is the law itself which provides for two
separate remedies for their distinct causes of action.
Under Article 217 9 of the Labor Code, termination cases fall under the
jurisdiction of Labor Arbiters. Whereas, Article 128 10 of the same Code vests the
Secretary of Labor or his duly authorized representatives with the power to
inspect the employer's records to determine and compel compliance with labor
standard laws. The exercise of the said power by the Secretary or his duly
authorized representatives is exclusive to cases where employer-employee
relationship still exists. Thus, in cases where the complaint for violation of labor
standard laws preceded the termination of the employee and the filing of the
illegal dismissal case, it would not be in consonance with justice to charge the
complainants with engaging in forum shopping when the remedy available to
them at the time their causes of action arose was to file separate cases before
different fora. Besides, in the instant case, respondent Danny Oberio disclosed in
the verification the pendency of the case regarding wage differential. 11 In
addition, said case was discussed in detail in the position paper, 12 evincing the
absence of any intention on the part of respondents to mislead the Labor
Arbiter. IASEca
Similarly, in Benguet Management Corporation v. Court of Appeals, 13 petitioner
filed separate actions to enjoin the foreclosure of real estate mortgages before
the Regional Trial Courts of San Pablo City and Zambales which has jurisdiction
over the place where the properties were located. In both cases, petitioner
contended, among others, that the loan secured by said mortgages imposed
unauthorized penalties, interest and charges. The Court did not find the
mortgagors guilty of forum shopping considering that since injunction is
enforceable only within the territorial limits of the trial court, the mortgagor is left
without remedy as to the properties located outside the jurisdiction of the issuing
court, unless an application for injunction is made with another court which has
jurisdiction over the latter properties.
By parity of reasoning, it would be unfair to hold respondents in the instant case
guilty of forum shopping because the recourse available to them after their
termination, but pending resolution of the inspection case before the DOLE, was
to file a case for illegal dismissal before the Labor Arbiter who has jurisdiction
over termination disputes.
More importantly, substantial justice dictates that this case be resolved on the
merits considering that the NLRC and the Court of Appeals correctly found that
there existed an employer-employee relationship between petitioner and
respondents and that the latter's dismissal was illegal, as will be discussed
hereunder.
In the same vein, the NLRC correctly ruled on the merits instead of remanding
the case to the Labor Arbiter. Respondents specifically raised the issue of the
existence of employer-employee relationship but petitioner refused to submit
evidence to disprove such relationship on the erroneous contention that to do so
would constitute a waiver of the right to question the jurisdiction of the NLRC to
resolve the case on the merits. 14 This is rather odd because it was the stand of
petitioner in the inspection case before the DOLE that the case should be
certified to the NLRC for the resolution of the issue of employer-employee
relationship. But when the same issue was proffered before the NLRC, it refused
to present evidence and instead sought the dismissal of the case invoking the
pendency of the inspection case before the DOLE. Petitioner refused to meet
head on the substantial aspect of this controversy and resorted to technicalities
to delay its disposition. It must be stressed that labor tribunals are not bound by
technical rules and the Court would sustain the expedient disposition of cases so
long as the parties are not denied due process. 15 The rule is that, due process is
not violated where a person is given the opportunity to be heard, but chooses not
to give his or her side of the case. 16 Significantly, petitioner never claimed that it
was denied due process. Indeed, no such denial exists because it had all the
opportunities to present evidence before the labor tribunals below, the Court of
Appeals, and even before this Court, but chose not to do so for reasons which
will not warrant the sacrifice of substantial justice over technicalities. EIcSDC
On the third issue, respondents' employment with petitioner passed the "four-fold
test" on employer-employee relations, namely: (1) the selection and engagement
of the employee, or the power to hire; (2) the payment of wages; (3) the power to
dismiss; and (4) the power to control the employee.
Petitioner failed to controvert with substantial evidence the allegation of
respondents that they were hired by the former on various dates from 1974 to
1997. If petitioner did not hire respondents and if it was the director alone who
chose the talents, petitioner could have easily shown, being in possession of the
records, a contract to such effect. However, petitioner merely relied on its
contention that respondents were piece rate contractors who were paid by
results. 17 Note that under Policy Instruction No. 40, petitioner is obliged to
execute the necessary contract specifying the nature of the work to be
performed, rates of pay, and the programs in which they will work. Moreover,
project or contractual employees are required to be apprised of the project they
will undertake under a written contract. This was not complied with by the
petitioner, justifying the reasonable conclusion that no such contracts exist and
that respondents were in fact regular employees.
In ABS-CBN v. Marquez, 18 the Court held that the failure of the employer to
produce the contract mandated by Policy Instruction No. 40 is indicative that the
so called talents or project workers are in reality, regular employees. Thus —
Policy Instruction No. 40 pertinently provides:
Program employees are those whose skills, talents or services
are engaged by the station for a particular or specific program or
undertaking and who are not required to observe normal working
hours such that on some days they work for less than eight (8)
hours and on other days beyond the normal work hours observed
by station employees and are allowed to enter into employment
contracts with other persons, stations, advertising agencies or
sponsoring companies. The engagement of program
employees, including those hired by advertising or sponsoring
companies, shall be under a written contract specifying,
among other things, the nature of the work to be performed,
rates of pay, and the programs in which they will work.
The contract shall be duly registered by the station with the
Broadcast Media Council within three days from its
consummation. (Emphasis supplied)
Ironically, however, petitioner failed to adduce an iota proof that the
requirements for program employment were even complied with by it. It
is basic that project or contractual employees are appraised of the
project they will work under a written contract, specifying, inter alia , the
nature of work to be performed and the rates of pay and the program in
which they will work. Sadly, however, no such written contract was ever
presented by the petitioner. Petitioner is in the best of position to present
these documents. And because none was presented, we have every
reason to surmise that no such written contract was ever accomplished
by the parties, thereby belying petitioner's posture.
Worse, there was no showing of compliance with the requirement that
after every engagement or production of a particular television series,
the required reports were filed with the proper government agency, as
provided no less under the very Policy Instruction invoked by the
petitioner, nor under the Omnibus Implementing Rules of the Labor
Code for project employees. This alone bolsters respondents' contention
that they were indeed petitioner's regular employees since their
employment was not only for a particular program. CHEDAc
Moreover, the engagement of respondents for a period ranging from 2 to 25
years and the fact that their drama programs were aired not only in Bacolod City
but also in the sister stations of DYWB in the Visayas and Mindanao areas,
undoubtedly show that their work is necessary and indispensable to the usual
business or trade of petitioner. The test to determine whether employment is
regular or not is the reasonable connection between the particular activity
performed by the employee in relation to the usual business or trade of the
employer. Also, if the employee has been performing the job for at least one
year, even if the performance is not continuous or merely intermittent, the law
deems the repeated and continuing need for its performance as sufficient
evidence of the necessity, if not indispensability of that activity to the business.
Thus, even assuming that respondents were initially hired as project/contractual
employees who were paid per drama or per project/contract, the engagement of
their services for 2 to 25 years justify their classification as regular employees,
their services being deemed indispensable to the business of petitioner. 19
As to the payment of wages, it was petitioner who paid the same as shown by
the payroll bearing the name of petitioner company in the heading with the
respective salaries of respondents opposite their names. Anent the power of
control, dismissal, and imposition of disciplinary measures, which are indicative
of an employer-employee relationship, 20 the same were duly proven by the
following: (1) memorandum 21 duly noted by Wilfredo Alejaga, petitioner's station
manager, calling the attention of the "Drama Department" to the late submission
of scripts by writers and the tardiness and absences of directors and talents, as
well as the imposable fines of P100 to P200 for future infractions; (2) the
memorandum 22 of the station manager directing respondent Oberio to explain
why no disciplinary action should be taken against him for punching the time card
of a certain Mrs. Fe Oberio who was not physically present in their office; and (3)
the station manager's memorandum 23suspending respondent Oberio for six
days for the said infraction which constituted violation of petitioner's network
policy. All these, taken together, unmistakably show the existence of an
employer-employee relationship. Not only did petitioner possess the power of
control over their work but also the power to discipline them through the
imposition of fines and suspension for violation of company rules and policies.
Finally, we find that respondents were illegally dismissed. In labor cases, the
employer has the burden of proving that the dismissal was for a just cause;
failure to show this would necessarily mean that the dismissal was unjustified
and, therefore, illegal. To allow an employer to dismiss an employee based on
mere allegations and generalities would place the employee at the mercy of his
employer; and the right to security of tenure, which this Court is bound to protect,
would be unduly emasculated. 24 In this case, petitioner merely contended that it
was respondents who ceased to report to work, and never presented any
substantial evidence to support said allegation. Petitioner therefore failed to
discharge its burden, hence, respondents were correctly declared to have been
illegally dismissed.
Furthermore, if doubts exist between the evidence presented by the employer
and the employee, the scales of justice must be tilted in favor of the latter — the
employer must affirmatively show rationally adequate evidence that the dismissal
was for a justifiable cause. It is a time-honored rule that in controversies between
a laborer and his master, doubts reasonably arising from the evidence should be
resolved in the former's favor. The policy is to extend the doctrine to a greater
number of employees who can avail of the benefits under the law, which is in
consonance with the avowed policy of the State to give maximum aid and
protection of labor. 25 cdasia
When a person is illegally dismissed, he is entitled to reinstatement without loss
of seniority rights and other privileges and to his full backwages. In the event,
however, that reinstatement is no longer feasible, or if the employee decides not
to be reinstated, the employer shall pay him separation pay in lieu of
reinstatement. Such a rule is likewise observed in the case of a strained
employer-employee relationship or when the work or position formerly held by
the dismissed employee no longer exists. In sum, an illegally dismissed
employee is entitled to: (1) either reinstatement if viable or separation pay if
reinstatement is no longer viable, and (2) backwages. In the instant controversy,
reinstatement is no longer viable considering the strained relations between
petitioner and respondents. As admitted by the latter, the complaint filed before
the DOLE strained their relations with petitioner who eventually dismissed them
from service. Payment of separation pay instead of reinstatement would thus
better promote the interest of both parties.
Respondents' separation pay should be computed based on their respective one
(1) month pay, or one-half (1/2) month pay for every year of service, whichever is
higher, reckoned from their first day of employment up to finality of this decision.
Full backwages, on the other hand, should be computed from the date of their
dismissal until the finality of this decision. 26
WHEREFORE, the petition is DENIED. The July 30, 2004 Decision of the Court
of Appeals in CA-G.R. SP No. 77098, finding respondents to be regular
employees of petitioner and holding them to be illegally dismissed and directing
petitioner to pay full backwages, is AFFIRMED with the MODIFICATION that
petitioner is ordered to pay respondents their separation pay instead of effecting
their reinstatement.
SO ORDERED.
Austria-Martinez, Chico-Nazario and Nachura, JJ., concur.
||| (Consolidated Broadcasting System, Inc. v. Oberio, G.R. No. 168424, [June 8, 2007], 551 PHIL 802-818)
[G.R. No. 162833. June 15, 2007.]
LAKAS SA INDUSTRIYA NG KAPATIRANG HALIGI NG
ALYANSA-PINAGBUKLOD NG MANGGAGAWANG PROMO
NG BURLINGAME, petitioner, vs.BURLINGAME CORPORATIO
N, respondent.
D E C I S I O N
QUISUMBING, J p:
This is an appeal to reverse and set aside both the Decision 1 dated August 29,
2003 of the Court of Appeals and its Resolution 2 dated March 15, 2004 in CA-
G.R. SP No. 69639. The appellate court had reversed the decision 3 dated
December 29, 2000 of the Secretary of Labor and Employment which ordered
the holding of a certification election among the rank-and-file promo employees
of respondent Burlingame Corporation.
The facts are undisputed.
On January 17, 2000, the petitioner Lakas sa Industriya ng Kapatirang Haligi ng
Alyansa-Pinagbuklod ng Manggagawang Promo ng Burlingame (LIKHA-PMPB)
filed a petition for certification election before the Department of Labor and
Employment (DOLE). LIKHA-PMPB sought to represent all rank-and-file promo
employees of respondent numbering about 70 in all. The petitioner claimed that
there was no existing union in the aforementioned establishment representing
the regular rank-and-file promo employees. It prayed that it be voluntarily
recognized by the respondent to be the collective bargaining agent, or, in the
alternative, that a certification/consent election be held among said regular rank-
and-file promo employees.
The respondent filed a motion to dismiss the petition. It argued that there exists
no employer-employee relationship between it and the petitioner's members. It
further alleged that the petitioner's members are actually employees of F. Garil
Manpower Services (F. Garil), a duly licensed local employment agency. To
prove such contention, respondent presented a copy of its contract for manpower
services with F. Garil.
On June 29, 2000, Med-Arbiter Renato D. Parungo dismissed 4 the petition for
lack of employer-employee relationship, prompting the petitioner to file an
appeal 5before the Secretary of Labor and Employment.
On December 29, 2000, the Secretary of Labor and Employment ordered the
immediate conduct of a certification election. 6
A motion for reconsideration of the said decision was filed by the respondent on
January 19, 2001, but the same was denied in the Resolution 7 of February 19,
2002 of the Secretary of Labor and Employment.
Respondent then filed a complaint with the Court of Appeals, which then
reversed 8 the decision of the Secretary. The petitioner then filed a motion for
reconsideration,9 which the Court of Appeals denied 10 on March 15, 2004.
Hence the instant petition for review on certiorari.
The issue raised in the petition is:
WHETHER THE COURT OF APPEALS COMMITTED REVERSIBLE
ERROR IN DECLARING THAT THERE IS NO EMPLOYER-EMPLOYEE
RELATIONSHIP BETWEEN PETITIONER'S MEMBERS
AND BURLINGAME BECAUSE F. GARIL MANPOWER SERVICES IS
AN INDEPENDENT CONTRACTOR. 11 TaCEHA
Respondent contends that there is no employer-employee relationship between
the parties. 12 Petitioner, on the other hand, insists that there is. 13
The resolution of this issue boils down to a determination of the true status of F.
Garil, i.e., whether it is an independent contractor or a labor-only contractor.
The case of De Los Santos v. NLRC 14 succinctly enunciates the statutory
criteria:
Job contracting is permissible only if the following conditions are met: 1)
the contractor carries on an independent business and undertakes the
contract work on his own account under his own responsibility according
to his own manner and method, free from the control and direction of his
employer or principal in all matters connected with the performance of
the work except as to the results thereof; and 2) the contractor has
substantial capital or investment in the form of tools, equipment,
machineries, work premises, and other materials which are necessary in
the conduct of the business. 15
According to Section 5 of DOLE Department Order No. 18-02, Series of 2002: 16
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
[is] present:
i) The contractor or sub-contractor does not have substantial
capital or investment which relates to the job, work or
service to be performed and the employees recruited,
supplied or placed by such contractor or subcontractor are
performing activities which are directly related to the main
business of the principal; or
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.
"Substantial capital or investment" refers to capital stocks and
subscribed capitalization in the case of corporations, tools, equipment,
implements, machineries and work premises, actually and directly used
by the contractor or subcontractor in the performance or completion of
the job, work or service contracted out.
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.
Given the above criteria, we agree with the Secretary that F. Garil is not an
independent contractor.
First, F. Garil does not have substantial capitalization or investment in the form of
tools, equipment, machineries, work premises, and other materials, to qualify as
an independent contractor. No proof was adduced to show F. Garil's
capitalization.
Second, the work of the promo-girls was directly related to the principal business
or operation of Burlingame. Marketing and selling of products is an essential
activity to the main business of the principal.
Lastly, F. Garil did not carry on an independent business or undertake the
performance of its service contract according to its own manner and method, free
from the control and supervision of its principal, Burlingame.
The "four-fold test" will show that respondent is the employer of petitioner's
members. The elements to determine the existence of an employment
relationship are: (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's conduct. The most important element is the employer's
control of the employee's conduct, not only as to the result of the work to be
done, but also as to the means and methods to accomplish it. 17
A perusal of the contractual stipulations between Burlingame and F. Garil shows
the following:
1. The AGENCY shall provide Burlingame Corporation or the CLIENT,
with sufficient number of screened, tested and pre-selected personnel
(professionals, highly-skilled, skilled, semi-skilled and unskilled) who will
be deployed in establishment selling products manufactured by the
CLIENT.
2. The AGENCY shall be responsible in paying its workers under this
contract in accordance with the new minimum wage including the daily
living allowances and shall pay them overtime or remuneration that
which is authorized by law.
3. It is expressly understood and agreed that the worker(s) supplied shall
be considered or treated as employee(s) of the AGENCY. Consequently,
there shall be no employer-employee relationship between the worker(s)
and the CLIENT and as such, the AGENCY shall be responsible to the
benefits mandated by law.
4. For and in consideration of the service to be rendered by the
AGENCY to the CLIENT, the latter shall during the terms of agreement
pay to the AGENCY the sum of Seven Thousand Five Hundred Pesos
Only (P7,500.00) per month per worker on the basis of Eight (8) hours
work payable up-to-date, semi-monthly, every 15th and 30th of each
calendar month. However, these rates may be subject to change
proportionately in the event that there will be revisions in the Minimum
Wage Law or any law related to salaries and wages.
5. The CLIENT shall report to the AGENCY any of its personnel
assigned to it if those personnel are found to be inefficient, troublesome,
uncooperative and not observing the rules and regulations set forth by
the CLIENT. It is understood and agreed that the CLIENT may request
any time the immediate replacement of any personnel(s) assigned to
them. 18
It is patent that the involvement of F. Garil in the hiring process was only with
respect to the recruitment aspect, i.e. the screening, testing and pre-selection of
the personnel it provided to Burlingame. The actual hiring itself was done through
the deployment of personnel to establishments by Burlingame.
The contract states that Burlingame would pay the workers through F. Garil,
stipulating that Burlingame shall pay F. Garil a certain sum per worker on the
basis of eight-hour work every 15th and 30th of each calendar month. This
evinces the fact that F. Garil merely served as conduit in the payment of wages
to the deployed personnel. The interpretation would have been different if the
payment was for the job, project, or services rendered during the month and not
on a per worker basis. In Vinoya v. National Labor Relations Commission, 19 we
held:
The Court takes judicial notice of the practice of employers who, in order
to evade the liabilities under the Labor Code, do not issue payslips
directly to their employees. Under the current practice, a third person,
usually the purported contractor (service or manpower placement
agency), assumes the act of paying the wage. For this reason, the lowly
worker is unable to show proof that it was directly paid by the true
employer. Nevertheless, for the workers, it is enough that they actually
receive their pay, oblivious of the need for payslips, unaware of its legal
implications. Applying this principle to the case at bar, even though the
wages were coursed through PMCI, we note that the funds actually
came from the pockets of RFC. Thus, in the end, RFC is still the one
who paid the wages of petitioner albeit indirectly. 20
The contract also provides that "any personnel found to be inefficient,
troublesome, uncooperative and not observing the rules and regulations set forth
by Burlingameshall be reported to F. Garil and may be replaced upon request."
Corollary to this circumstance would be the exercise of control and supervision
by Burlingame over workers supplied by F. Garil in order to establish the
inefficient, troublesome, and uncooperative nature of undesirable personnel. Also
implied in the provision on replacement of personnel carried upon request
by Burlingame is the power to fire personnel.
These are indications that F. Garil was not left alone in the supervision and
control of its alleged employees. Consequently, it can be concluded that F. Garil
was not an independent contractor since it did not carry a distinct business free
from the control and supervision of Burlingame.
It goes without saying that the contractual stipulation on the nonexistence of an
employer-employee relationship between Burlingame and the personnel provided
by F. Garil has no legal effect. While the parties may freely stipulate terms and
conditions of a contract, such contractual stipulations should not be contrary to
law, morals, good customs, public order or public policy. A contractual stipulation
to the contrary cannot override factual circumstances firmly establishing the legal
existence of an employer-employee relationship.
Under this circumstance, there is no doubt that F. Garil was engaged in labor-
only contracting, and as such, is considered merely an agent of Burlingame. In
labor-only contracting, the law creates an employer-employee relationship to
prevent a circumvention of labor laws. The contractor is considered merely an
agent of the principal employer and the latter is responsible to the employees of
the labor-only contractor as if such employees had been directly employed by the
principal employer. 21Since F. Garil is a labor-only contractor, the workers it
supplied should be considered as employees of Burlingame in the eyes of the
law.
WHEREFORE, the challenged Decision of the Court of Appeals dated August
29, 2003 and the Resolution dated March 15, 2004 denying the motion for
reconsideration are REVERSED and SET ASIDE. The decision of the Secretary
of Labor and Employment ordering the holding of a certification election among
the rank-and-file promo employees of Burlingame is reinstated.
Costs against respondent.
SO ORDERED.
Carpio, Tinga and Velasco, Jr., JJ., concur.
Carpio-Morales, J., is on official leave.
||| (Lakas sa Industriya ng Kapatirang Haligi ng Alyansa-Pinagbuklod ng Manggagawang Promo ng Burlingame v. Burlingame Corp., G.R. No. 162833, [June 15, 2007], 552 PHIL 58-66)
[G.R. No. 162813. February 12, 2007.]
FAR EAST AGRICULTURAL SUPPLY, INC. and/or
ALEXANDER UY, petitioners, vs. JIMMY LEBATIQUE and THE
HONORABLE COURT OF APPEALS,respondents.
D E C I S I O N
QUISUMBING, J p:
Before us is a petition for review on certiorari assailing the Decision 1 dated
September 30, 2003 of the Court of Appeals in CA-G.R. SP No. 76196 and its
Resolution 2dated March 15, 2004 denying the motion for reconsideration. The
appellate court had reversed the Decision 3 dated October 15, 2002 of the
National Labor Relations Commission (NLRC) setting aside the Decision 4 dated
June 27, 2001 of the Labor Arbiter.
Petitioner Far East Agricultural Supply, Inc. (Far East) hired on March 4, 1996
private respondent Jimmy Lebatique as truck driver with a daily wage of P223.50.
He delivered animal feeds to the company's clients.
On January 24, 2000, Lebatique complained of nonpayment of overtime work
particularly on January 22, 2000, when he was required to make a second
delivery in Novaliches, Quezon City. That same day, Manuel Uy, brother of Far
East's General Manager and petitioner Alexander Uy,
suspended Lebatique apparently for illegal use of company vehicle. Even
so, Lebatique reported for work the next day but he was prohibited from entering
the company premises.
On January 26, 2000, Lebatique sought the assistance of the Department of
Labor and Employment (DOLE) Public Assistance and Complaints Unit
concerning the nonpayment of his overtime pay. According to Lebatique, two
days later, he received a telegram from petitioners requiring him to report for
work. When he did the next day, January 29, 2000, Alexander asked him why he
was claiming overtime pay. Lebatique explained that he had never been paid for
overtime work since he started working for the company. He also told Alexander
that Manuel had fired him. After talking to Manuel, Alexander
terminated Lebatique and told him to look for another job. HCETDS
On March 20, 2000, Lebatique filed a complaint for illegal dismissal and
nonpayment of overtime pay. The Labor Arbiter found that Lebatique was illegally
dismissed, and ordered his reinstatement and the payment of his full back
wages, 13th month pay, service incentive leave pay, and overtime pay. The
dispositive portion of the decision is quoted herein in full, as follows:
WHEREFORE, we find the termination of complainant illegal. He should
thus be ordered reinstated with full backwages. He is likewise ordered
paid his 13th month pay, service incentive leave pay and overtime pay
as computed by the Computation and Examination Unit as follows:
a) Backwages:
01/25/00 - 10/31/00 = 9.23 mos.
P223.50 x 26 x 9.23 = P53,635.53
11/01/00 - 06/26/01 = 7.86 mos.
P250.00 x 26 x 7.86 = 51,090.00 P104,725.53
13th Month Pay: 1/12 of P104,725.53 = 8,727.13
Service Incentive Leave Pay
01/25/00 - 10/31/00 = 9.23 mos.
P223.50 x 5/12 x 9.23 = P859.54
11/01/00 - 06/26/01 = 7.86 mos.
P250.00 x 5/12 x 7.86 = [818.75] 1,678.29 115,130.95
b) Overtime Pay: (3 hours/day)
03/20/97 - 4/30/97 = 1.36 mos.
P180/8 x 1.25 x 3 x 26 x 1.36 = P2,983.50
05/01/97 - 02/05/98 = 9.16 mos.
P185/8 x 1.25 x 3 x 26 x 9.16 = 20,652.94
02/06/98 - 10/30/99 = 20.83 mos.
P198/8 x 1.25 x 3 x 26 x [20.83] = 50,265.39
10/31/99 - 01/24/00 = 2.80 mos.
P223.50/8 x 1.25 x 3 x 26 x 2.80 = 7,626.94 81,528.77
TOTAL AWARD P196,659.72
SO ORDERED. 5
On appeal, the NLRC reversed the Labor Arbiter and dismissed the complaint for
lack of merit. The NLRC held that there was no dismissal to speak of
since Lebatiquewas merely suspended. Further, it found that Lebatique was a
field personnel, hence, not entitled to overtime pay and service incentive leave
pay. Lebatique sought reconsideration but was denied.
Aggrieved, Lebatique filed a petition for certiorari with the Court of Appeals.
The Court of Appeals, in reversing the NLRC decision, reasoned
that Lebatique was suspended on January 24, 2000 but was illegally dismissed
on January 29, 2000 when Alexander told him to look for another job. It also
found that Lebatique was not a field personnel and therefore entitled to payment
of overtime pay, service incentive leave pay, and 13th month pay.
It reinstated the decision of the Labor Arbiter as follows:
WHEREFORE, premises considered, the decision of the NLRC dated 27
December 2002 is hereby REVERSED and the Labor Arbiter's decision
dated 27 June 2001REINSTATED.
SO ORDERED. 6
Petitioners moved for reconsideration but it was denied.
Hence, the instant petition wherein petitioners assign the following errors:
THE COURT OF APPEALS . . . ERRED IN REVERSING THE
DECISION OF THE NATIONAL LABOR RELATIONS COMMISSION
DATED 15 OCTOBER 2002 AND IN RULING THAT THE PRIVATE
RESPONDENT WAS ILLEGALLY DISMISSED.
THE COURT OF APPEALS . . . ERRED IN REVERSING THE
DECISION OF THE NATIONAL LABOR RELATIONS COMMISSION
DATED 15 OCTOBER 2002 AND IN RULING THAT PRIVATE
RESPONDENT IS NOT A FIELD PERSONNEL AND THER[E]FORE
ENTITLED TO OVERTIME PAY AND SERVICE INCENTIVE LEAVE
PAY.
THE COURT OF APPEALS . . . ERRED IN NOT DISMISSING THE
PETITION FOR CERTIORARI FOR FAILURE OF PRIVATE
RESPONDENT TO ATTACH CERTIFIED TRUE COPIES OF THE
QUESTIONED DECISION AND RESOLUTION OF THE PUBLIC
RESPONDENT. 7
Simply stated, the principal issues in this case are: (1) whether Lebatique was
illegally dismissed; and (2) whether Lebatique was a field personnel, not entitled
to overtime pay.
Petitioners contend that, (1) Lebatique was not dismissed from service but
merely suspended for a day due to violation of company rules; (2) Lebatique was
not barred from entering the company premises since he never reported back to
work; and (3) Lebatique is estopped from claiming that he was illegally dismissed
since his complaint before the DOLE was only on the nonpayment of his
overtime pay.
Also, petitioners maintain that Lebatique, as a driver, is not entitled to overtime
pay since he is a field personnel whose time outside the company premises
cannot be determined with reasonable certainty. According to petitioners, the
drivers do not observe regular working hours unlike the other office employees.
The drivers may report early in the morning to make their deliveries or in the
afternoon, depending on the production of animal feeds and the traffic conditions.
Petitioners also aver that Lebatique worked for less than eight hours a day. 8
Lebatique for his part insists that he was illegally dismissed and was not merely
suspended. He argues that he neither refused to work nor abandoned his job. He
further contends that abandonment of work is inconsistent with the filing of a
complaint for illegal dismissal. He also claims that he is not a field personnel,
thus, he is entitled to overtime pay and service incentive leave pay.
After consideration of the submission of the parties, we find that the petition lacks
merit. We are in agreement with the decision of the Court of Appeals sustaining
that of the Labor Arbiter.
It is well settled that in cases of illegal dismissal, the burden is on the employer to
prove that the termination was for a valid cause. 9 In this case, petitioners failed
to discharge such burden. Petitioners aver that Lebatique was merely suspended
for one day but he abandoned his work thereafter. To constitute abandonment as
a just cause for dismissal, there must be: (a) absence without justifiable reason;
and (b) a clear intention, as manifested by some overt act, to sever the employer-
employee relationship. 10
The records show that petitioners failed to prove that Lebatique abandoned his
job. Nor was there a showing of a clear intention on the part of Lebatique to
sever the employer-employee relationship. When Lebatique was verbally told by
Alexander Uy, the company's General Manager, to look for another
job, Lebatique was in effect dismissed. Even assuming earlier he was merely
suspended for illegal use of company vehicle, the records do not show that he
was afforded the opportunity to explain his side. It is clear also from the
sequence of the events leading to Lebatique's dismissal that it was Lebatique's
complaint for nonpayment of his overtime pay that provoked the management to
dismiss him, on the erroneous premise that a truck driver is a field personnel not
entitled to overtime pay. DaEcTC
An employee who takes steps to protest his layoff cannot by any stretch of
imagination be said to have abandoned his work and the filing of the complaint is
proof enough of his desire to return to work, thus negating any suggestion of
abandonment. 11 A contrary notion would not only be illogical but also absurd.
It is immaterial that Lebatique had filed a complaint for nonpayment of overtime
pay the day he was suspended by management's unilateral act. What matters is
that he filed the complaint for illegal dismissal on March 20, 2000, after he was
told not to report for work, and his filing was well within the prescriptive period
allowed under the law.
On the second issue, Article 82 of the Labor Code is decisive on the question of
who are referred to by the term "field personnel." It provides, as follows:
ART. 82. Coverage. — The provisions of this title [Working Conditions
and Rest Periods] shall apply to employees in all establishments and
undertakings whether for profit or not, but not to government employees,
managerial employees, field personnel, members of the family of the
employer who are dependent on him for support, domestic helpers,
persons in the personal service of another, and workers who are paid by
results as determined by the Secretary of Labor in appropriate
regulations.
xxx xxx xxx
"Field personnel" shall refer to non-agricultural employees who regularly
perform their duties away from the principal place of business or branch
office of the employer and whose actual hours of work in the field cannot
be determined with reasonable certainty.
In Auto Bus Transport Systems, Inc. v. Bautista, 12 this Court emphasized that
the definition of a "field personnel" is not merely concerned with the location
where the employee regularly performs his duties but also with the fact that the
employee's performance is unsupervised by the employer. We held that field
personnel are those who regularly perform their duties away from the principal
place of business of the employer and whose actual hours of work in the field
cannot be determined with reasonable certainty. Thus, in order to determine
whether an employee is a field employee, it is also necessary to ascertain if
actual hours of work in the field can be determined with reasonable certainty by
the employer. In so doing, an inquiry must be made as to whether or not the
employee's time and performance are constantly supervised by the employer. 13
As correctly found by the Court of Appeals, Lebatique is not a field personnel as
defined above for the following reasons: (1) company drivers,
including Lebatique, are directed to deliver the goods at a specified time and
place; (2) they are not given the discretion to solicit, select and contact
prospective clients; and (3) Far East issued a directive that company drivers
should stay at the client's premises during truck-ban hours which is from 5:00 to
9:00 a.m. and 5:00 to 9:00 p.m. 14 Even petitioners admit that the drivers can
report early in the morning, to make their deliveries, or in the afternoon,
depending on the production of animal feeds. 15 Drivers, like Lebatique, are
under the control and supervision of management officers. Lebatique, therefore,
is a regular employee whose tasks are usually necessary and desirable to the
usual trade and business of the company. Thus, he is entitled to the benefits
accorded to regular employees of Far East, including overtime pay and service
incentive leave pay.
Note that all money claims arising from an employer-employee relationship shall
be filed within three years from the time the cause of action accrued; otherwise,
they shall be forever barred. 16 Further, if it is established that the benefits being
claimed have been withheld from the employee for a period longer than three
years, the amount pertaining to the period beyond the three-year prescriptive
period is therefore barred by prescription. The amount that can only be
demanded by the aggrieved employee shall be limited to the amount of the
benefits withheld within three years before the filing of the complaint. 17
Lebatique timely filed his claim for service incentive leave pay, considering that in
this situation, the prescriptive period commences at the time he was
terminated. 18 On the other hand, his claim regarding nonpayment of overtime
pay since he was hired in March 1996 is a different matter. In the case of
overtime pay, he can only demand for the overtime pay withheld for the period
within three years preceding the filing of the complaint on March 20, 2000.
However, we find insufficient the selected time records presented by petitioners
to compute properly his overtime pay. The Labor Arbiter should have required
petitioners to present the daily time records, payroll, or other documents in
management's control to determine the correct overtime pay due Lebatique.
WHEREFORE, the petition is DENIED for lack of merit. The Decision dated
September 30, 2003 of the Court of Appeals in CA-G.R. SP No. 76196 and its
Resolution dated March 15, 2004 are AFFIRMED with MODIFICATION to the
effect that the case is hereby REMANDED to the Labor Arbiter for further
proceedings to determine the exact amount of overtime pay and other monetary
benefits due Jimmy Lebatique which herein petitioners should pay without further
delay.
Costs against petitioners.
SO ORDERED.
Carpio, Carpio-Morales, Tinga and Velasco, Jr., JJ., concur.
||| (Far East Agricultural Supply, Inc. v. Lebatique, G.R. No. 162813, [February 12, 2007], 544 PHIL 420-430)
[G.R. No. 156146. June 21, 2007.]
OLONGAPO MAINTENANCE SERVICES, INC., petitioner, vs.
EDGARDO B. CHANTENGCO, SALVACION S. ANIGAN,
POLICARPIO S. ANIGAN, NOEL C. MENDOZA, DANIEL
VALENTIN, MANUEL T. MARIANO, CARLOS PALABYAB,
BETTY B. OLA, SALICIO R. MAGNO, MICHAEL SALAZAR,
LOPE R. MAGNO, GERARDO G. AQUINO, EDWIN Q.
DAYANDANTE, JOSE P. PRIEL, ROMEO O. CLETE, ERNESTO
O. CLETE, SAMUEL P. MIRALPES, PATERNO R. BERZUELA,
ANTONIO C. VALDEZ, RICARDO L. LOPEZ, MANUEL C.
ABADIEZ, RUTH S. DOMENS, ALVIN P. MANGASIL, TIRSO T.
TISADO, EDMUNDO C. SANTOS, FRANCISCO M. ZAMORA,
EFREN E. ERGINA, DANIEL CASIMIRO, CHARLIE GALVEZ,
EDGARDO REYES, CELSO M. DEL MUNDO, EUGENIA
ILAGAN, RAFAEL CABAIS, DEODERICO GARCIA, VENANCIO
MAGHANOY, ZOSIMO DIMACULANGAN, DULLAS PACOMIO,
MARLON MAGDURULAN, GAUDIOSO BORREL, FORTUNATO
ANZANO, WILFREDO HERNANDEZ, ROLANDO MUCHILLAS,
NOMER MAGNO, NOEL MAGNO, JEREMIAH CONEL, REMIGIO
PAREÑO, CRISANTO LIVINA, ROGELIO CASIL, VICENTE
INOFINADA, RICKY BETONIO, ERNESTO MARASIGAN, ELSA
MARTINEZ, ROBERTO MERCANO, ARNEL BAYRON,
ALEXANDER REGANION, RODERICO NEYRA, WILFRED
BATACAN, SALVADOR CRISOL, JR., EDISON GEMALAYA,
ARNOLD CAMERGA, RAMON BELMONTE, ERNESTO
IGNACIO, DOMINGO GUADEZ, ROMEO TAÑADA, FAUSTO
GARCIA, JUANITO DUMAGAT, RODOLFO PIMENTE, ANDRES
SAHURDA, CACAOJ RAMILITO, ARCON MOLINA, ALEX
LIBROJO, respondents.
D E C I S I O N
NACHURA, J p:
This Petition for Review on Certiorari assails the July 29, 2002 Decision 1 of the
Court of Appeals and its Resolution 2 dated November 14, 2002 in CA-G.R. SP
No. 67474, which, respectively, denied the petition for certiorari and the motion
for reconsideration filed by Olongapo Maintenance Services, Inc. (OMSI).
OMSI is a corporation engaged in the business of providing janitorial and
maintenance services to various clients, including government-owned and
controlled corporations. On various dates beginning 1986, OMSI hired the
respondents as janitors, grass cutters, and degreasers, and assigned them at the
Ninoy Aquino International Airport (NAIA). On January 14, 1999, OMSI
terminated respondents' employment.
Claiming termination without just cause and non-payment of labor standard
benefits, respondents filed a complaint for illegal dismissal, underpayment of
wages, and non-payment of holiday and service incentive leave pays, with prayer
for payment of separation pay, against OMSI.
For its part, OMSI denied the allegations in the complaint. It averred that when
Manila International Airport Authority (MIAA) awarded to OMSI the service
contracts for the airport, OMSI hired respondents as janitors, cleaners, and
degreasers to do the services under the contracts. OMSI informed the
respondents that they were hired for the MIAA project and their employments
were coterminous with the contracts. As project employees, they were not
dismissed from work but their employments ceased when the MIAA contracts
were not renewed upon their expiration. The termination of respondents'
employment cannot, thus, be considered illegal. EcHaAC
In a Decision 3 dated November 19, 1999, the Labor Arbiter dismissed the
complaint, viz.:
WHEREFORE, premises considered, judgment is hereby rendered
DISMISSING for lack of merit the claims for separation pay, wage
differentials and holiday pay except that respondent is hereby ordered to
pay the seventy one (71) complainants listed in pages three and four of
the latter's position paper their service incentive leave pay.
SO ORDERED. 4
On appeal by the respondents, the NLRC modified the Labor Arbiter's ruling. It
held that respondents were regular and not project employees. Hence, they are
entitled to separation pay:
WHEREFORE, the decision appealed from is hereby modified by
granting in addition to the grant of service incentive leave pay, payment
of separation pay equivalent to half-month pay per [every] year of
service or one month pay, whichever is higher.
SO ORDERED. 5
OMSI sought reconsideration of the ruling, but the NLRC denied the motion on
July 30, 2001.
Petitioner went up to the Court of Appeals via a petition for certiorari, imputing
grave abuse of discretion to the NLRC for reversing the factual findings and the
decision of the Labor Arbiter. However, the Court of Appeals dismissed the
petition. The appellate court agreed with the NLRC that the continuous rehiring of
respondents, who performed tasks necessary and desirable in the usual
business of OMSI, was a clear indication that they were regular, not project
employees. The court added that OMSI failed to establish that respondents'
employment had been fixed for a specific project or undertaking, the completion
or termination of which had been determined at the time of their engagement or
hiring. Neither had it shown that respondents were informed of the duration and
scope of their work when they were hired. Furthermore, OMSI did not submit to
the Department of Labor and Employment (DOLE) reports of termination of the
respondents, thereby bolstering respondents' claim of regular employment. OMSI
filed a motion for reconsideration, but the Court of Appeals denied it on
November 14, 2002. IcHTCS
Aggrieved by the resolutions of the Court of Appeals, OMSI comes to this Court
theorizing that:
THE COURT OF APPEALS COMMITTED GRAVE ERROR AND
GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR
EXCESS OF JURISDICTION IN SUSTAINING THE NLRC'S RULING
THAT RESPONDENTS ARE NOT PROJECT EMPLOYEES.
CONCOMITANT THERETO, THERE IS NEITHER FACTUAL NOR
LEGAL BASIS FOR THE AWARD OF SEPARATION PAY. 6
OMSI insists that respondents were project employees. Respondents, on the
other hand, maintain that they were OMSI's regular employees.
Article 280 of the Labor Code provides:
ART. 280. Regular and Casual Employment. — The provisions of written
agreement to the contrary notwithstanding and regardless of the oral
agreement of the parties, an employment shall be deemed to be regular
where the employee has been engaged to perform activities which are
usually necessary or desirable in the usual business or trade of the
employer, except where the employment has been fixed for a specific
project or undertaking the completion or termination of which has been
determined at the time of the engagement of the employee or where the
work or services to be performed is seasonal in nature and the
employment is for the duration of the season . . . (Italics supplied.)
Without question, respondents, as janitors, grass cutters, and degreasers,
performed work "necessary or desirable" in the janitorial and maintenance
service business of OMSI.
OMSI, however, argues that the respondents' performance of activities
necessary and desirable to its business does not necessarily and conclusively
mean that respondents were regular employees. OMSI asserts that respondents
were project employees and their employment was coterminous with OMSI's
service contracts with the MIAA. Thus, when the service contracts were
terminated and the respondents were not re-assigned to another project, OMSI
cannot be held liable for illegal dismissal.
The argument does not persuade.
The principal test in determining whether an employee is a project employee is
whether he/she is assigned to carry out a "specific project or undertaking," the
duration and scope of which are specified at the time the employee is engaged in
the project, 7 or where the work or service to be performed is seasonal in nature
and the employment is for the duration of the season. 8 A true project employee
should be assigned to a project which begins and ends at determined or
determinable times, and be informed thereof at the time of hiring. 9
In the instant case, the record is bereft of proof that the respondents'
engagement as project employees has been predetermined, as required by law.
We agree with the Court of Appeals that OMSI did not provide convincing
evidence that respondents were informed that they were to be assigned to a
"specific project or undertaking" when OMSI hired them. Notably, the
employment contracts for the specific project signed by the respondents were
never presented. All that OMSI submitted in the proceedings a quo are the
service contracts between OMSI and the MIAA. Clearly, OMSI utterly failed to
establish by substantial evidence that, indeed, respondents were project
employees and their employment was coterminous with the MIAA contract. HcDSaT
Evidently cognizant of such neglect, OMSI attempted to correct the situation by
attaching copies of the application forms 10 of the respondents to its motion for
reconsideration of the Court of Appeals' Decision. Such practice cannot be
tolerated. This practice of submitting evidence late is properly rejected as it
defeats the speedy administration of justice involving poor workers. It is also
unfair. 11
OMSI's reliance on Mamansag v. National Labor Relations
Commission, 12 Cartagenas v. Romago Electric Company, Inc., 13 and Sandoval
Shipyards, Inc. v. National Labor Relations Commission 14 is misplaced. Said
cases are not on all fours with the case at bench.
In Mamansag, Consumer Pulse Inc. duly presented the contract of employment
showing that Mamansag was hired for a specific project and the completion or
termination of said project was determined at the start of the employment.
In Cartagenas, documentary exhibits were offered showing that the employee
had been issued appointments from project to project and was issued a notice of
temporary lay-off when the project was suspended due to lack of funds. Finally,
in the case ofSandoval Shipyards, the termination of the project employees was
duly reported to the then Ministry of Labor and Employment. These
circumstances are not true in OMSI's case. As mentioned, no convincing
evidence was offered to prove that respondents were informed that they were to
be assigned to a "specific project or undertaking." Also, OMSI never reported
respondents' termination to the then Department of Labor and Employment
(DOLE). In Philippine Long Distance Telephone Co. v. Ylagan, 15 we held that
the failure of the employee to file termination reports was an indication that an
employee was not a project but a regular employee.
In termination cases, the burden of proof rests on the employer to show that the
dismissal is for a just cause. Thus, employers who hire project employees are
mandated to state and, once its veracity is challenged, to prove the actual basis
for the latter's dismissal. 16 Unfortunately for OMSI, it failed to discharge the
burden. All that we have is OMSI's self-serving assertion that the respondents
were hired as project employees.
Having been illegally dismissed, the NLRC cannot be considered to have acted
whimsically in granting respondents separation pay in lieu of their reinstatement.
Accordingly, the Court of Appeals committed no reversible error nor grave abuse
of discretion in denying OMSI's petition for certiorari.
WHEREFORE, the petition for review is DENIED and the assailed Decision and
Resolution of the Court of Appeals are AFFIRMED.
SO ORDERED.
Ynares-Santiago, Austria-Martinez and Chico-Nazario, JJ., concur.
||| (Olongapo Maintenance Services, Inc. v. Chantengco, G.R. No. 156146, [June 21, 2007], 552 PHIL 330-338)
[G.R. No. 167622. November 7, 2008.]
GREGORIO V. TONGKO, petitioner, vs.
THE MANUFACTURERS LIFE INSURANCE CO. (PHILS.), INC.
and RENATO A. VERGEL DE DIOS, respondents.
D E C I S I O N
VELASCO, JR., J p:
The Case
This Petition for Review on Certiorari under Rule 45 seeks the reversal of the
March 29, 2005 Decision 1 of the Court of Appeals (CA) in CA-G.R. SP No.
88253, entitled TheManufacturers Life Insurance Co. (Phils.), Inc. v. National
Labor Relations Commission and Gregorio V. Tongko. The assailed decision set
aside the Decision dated September 27, 2004 and Resolution dated December
16, 2004 rendered by the National Labor Relations Commission (NLRC) in
NLRC NCR CA No. 040220-04. EIAaDC
The Facts
Manufacturers Life Insurance Co. (Phils.), Inc. (Manulife) is a domestic
corporation engaged in life insurance business. Renato A. Vergel De Dios was,
during the period material, its President and Chief Executive Officer.
Gregorio V. Tongko started his professional relationship with Manulife on July 1,
1977 by virtue of a Career Agent's Agreement 2 (Agreement) he executed with
Manulife.
In the Agreement, it is provided that:
It is understood and agreed that the Agent is an independent contractor
and nothing contained herein shall be construed or interpreted as
creating an employer-employee relationship between the Company and
the Agent.
xxx xxx xxx
a) The Agent shall canvass for applications for Life Insurance, Annuities,
Group policies and other products offered by the Company, and collect,
in exchange for provisional receipts issued by the Agent, money due or
to become due to the Company in respect of applications or policies
obtained by or through the Agent or from policyholders allotted by the
Company to the Agent for servicing, subject to subsequent confirmation
of receipt of payment by the Company as evidenced by an Official
Receipt issued by the Company directly to the policyholder.
xxx xxx xxx
The Company may terminate this Agreement for any breach or violation
of any of the provisions hereof by the Agent by giving written notice to
the Agent within fifteen (15) days from the time of the discovery of the
breach. No waiver, extinguishment, abandonment, withdrawal or
cancellation of the right to terminate this Agreement by the Company
shall be construed for any previous failure to exercise its right under any
provision of this Agreement.
Either of the parties hereto may likewise terminate his Agreement at any
time without cause, by giving to the other party fifteen (15) days notice in
writing. . . .
In 1983, Tongko was named as a Unit Manager in Manulife's Sales Agency
Organization. In 1990, he became a Branch Manager. As the CA found, Tongko's
gross earnings from his work at Manulife, consisting of commissions, persistency
income, and management overrides, may be summarized as follows:
January to December 10, 2002 - P865,096.07
2001 - 6,214,737.11
2000 - 8,003,180.38
1999 - 6,797,814.05
1998 - 4,805,166.34
1997 - 2,822,620.00 3
The problem started sometime in 2001, when Manulife instituted manpower
development programs in the regional sales management level. Relative thereto,
De Dios addressed a letter dated November 6, 2001 4 to Tongko regarding an
October 18, 2001 Metro North Sales Managers Meeting. In the letter, De Dios
stated: ScaHDT
The first step to transforming Manulife into a big league player has been
very clear — to increase the number of agents to at least 1,000 strong
for a start. This may seem diametrically opposed to the way Manulife
was run when you first joined the organization. Since then, however,
substantial changes have taken place in the organization, as these have
been influenced by developments both from within and without the
company.
xxx xxx xxx
The issues around agent recruiting are central to the intended objectives
hence the need for a Senior Managers' meeting earlier last month when
Kevin O'Connor, SVP-Agency, took to the floor to determine from our
senior agency leaders what more could be done to bolster manpower
development. At earlier meetings, Kevin had presented information
where evidently, your Region was the lowest performer (on a per
Manager basis) in terms of recruiting in 2000 and, as of today, continues
to remain one of the laggards in this area.
While discussions, in general, were positive other than for certain
comments from your end which were perceived to be uncalled for, it
became clear that a one-on-one meeting with you was necessary to
ensure that you and management, were on the same plane. As gleaned
from some of your previous comments in prior meetings (both in group
and one-on-one), it was not clear that we were proceeding in the same
direction.
Kevin held subsequent series of meetings with you as a result, one of
which I joined briefly. In those subsequent meetings you reiterated
certain views, the validity of which we challenged and subsequently
found as having no basis.
With such views coming from you, I was a bit concerned that the rest of
the Metro North Managers may be a bit confused as to the directions the
company was taking. For this reason, I sought a meeting with everyone
in your management team, including you, to clear the air, so to speak.
This note is intended to confirm the items that were discussed at the said
Metro North Region's Sales Managers meeting held at the 7/F
Conference room last 18 October. ESITcH
xxx xxx xxx
Issue # 2: "Some Managers are unhappy with their earnings and would
want to revert to the position of agents."
This is an often repeated issue you have raised with me and with Kevin.
For this reason, I placed the issue on the table before the rest of your
Region's Sales Managers to verify its validity. As you must have noted,
no Sales Manager came forward on their own to confirm your statement
and it took you to name Malou Samson as a source of the same, an
allegation that Malou herself denied at our meeting and in your very
presence.
This only confirms, Greg, that those prior comments have no solid basis
at all. I now believe what I had thought all along, that these allegations
were simply meant to muddle the issues surrounding the inability of your
Region to meet its agency development objectives!
Issue # 3: "Sales Managers are doing what the company asks them to
do but, in the process, they earn less."
xxx xxx xxx
All the above notwithstanding, we had your own records checked and we
found that you made a lot more money in the Year 2000 versus 1999. In
addition, you also volunteered the information to Kevin when you said
that you probably will make more money in the Year 2001 compared to
Year 2000. Obviously, your above statement about making "less money"
did not refer to you but the way you argued this point had us almost
believing that you were spouting the gospel of truth when you were not. .
. .
xxx xxx xxx
All of a sudden, Greg, I have become much more worried about your
ability to lead this group towards the new direction that we have been
discussing these past few weeks, i.e., Manulife's goal to become a
major agency-led distribution company in the Philippines. While as you
claim, you have not stopped anyone from recruiting, I have never heard
you proactively push for greater agency recruiting. You have not been
proactive all these years when it comes to agency growth. SaCIDT
xxx xxx xxx
I cannot afford to see a major region fail to deliver on its developmental
goals next year and so, we are making the following changes in the
interim:
1. You will hire at your expense a competent assistant who can
unload you of much of the routine tasks which can be easily
delegated. This assistant should be so chosen as to complement
your skills and help you in the areas where you feel "may not be
your cup of tea".
You have stated, if not implied, that your work as Regional
Manager may be too taxing for you and for your health. The
above could solve this problem.
xxx xxx xxx
2. Effective immediately, Kevin and the rest of the Agency
Operations will deal with the North Star Branch (NSB) in
autonomous fashion. . . .
I have decided to make this change so as to reduce your span of
control and allow you to concentrate more fully on overseeing the
remaining groups under Metro North, your Central Unit and the
rest of the Sales Managers in Metro North. I will hold you solely
responsible for meeting the objectives of these remaining groups.
xxx xxx xxx
The above changes can end at this point and they need not go any
further. This, however, is entirely dependent upon you. But you have to
understand that meeting corporate objectives by everyone is primary
and will not be compromised. We are meeting tough challenges next
year and I would want everybody on board. Any resistance or holding
back by anyone will be dealt with accordingly.
Subsequently, De Dios wrote Tongko another letter dated December 18,
2001, 5 terminating Tongko's services, thus:
It would appear, however, that despite the series of meetings and
communications, both one-on-one meetings between yourself and SVP
Kevin O'Connor, some of them with me, as well as group meetings with
your Sales Managers, all these efforts have failed in helping you align
your directions with Management's avowed agency growth policy. cIDHSC
xxx xxx xxx
On account thereof, Management is exercising its prerogative under
Section 14 of your Agents Contract as we are now issuing this notice of
termination of your Agency Agreement with us effective fifteen days from
the date of this letter.
Therefrom, Tongko filed a Complaint dated November 25, 2002 with the NLRC
against Manulife for illegal dismissal. The case, docketed as NLRC NCR Case
No. 11-10330-02, was raffled to Labor Arbiter Marita V. Padolina.
In the Complaint, Tongko, in a bid to establish an employer-employee
relationship, alleged that De Dios gave him specific directives on how to manage
his area of responsibility in the latter's letter dated November 6, 2001. He further
claimed that Manulife exercised control over him as follows:
Such control was certainly exercised by respondents over the herein
complainant. It was Manulife who hired, promoted and gave various
assignments to him. It was the company who set objectives as regards
productions, recruitment, training programs and all activities pertaining to
its business. Manulife prescribed a Code of Conduct which would govern
in minute detail all aspects of the work to be undertaken by employees,
including the sales process, the underwriting process, signatures,
handling of money, policyholder service, confidentiality, legal and
regulatory requirements and grounds for termination of employment. The
letter of Mr. De Dios dated 06 November 2001 left no doubt as to who
was in control. The subsequent termination letter dated 18 December
2001 again established in no uncertain terms the authority of the herein
respondents to control the employees of Manulife. Plainly, the
respondents wielded control not only as to the ends to be achieved but
the ways and means of attaining such ends. 6
Tongko bolstered his argument by citing Insular Life Assurance Co., Ltd. v.
NLRC (4th Division) 7 and Great Pacific Life Assurance Corporation v.
NLRC, 8 which Tongkoclaimed to be similar to the instant case.
Tongko further claimed that his dismissal was without basis and that he was not
afforded due process. He also cited the Manulife Code of Conduct by which his
actions were controlled by the company.
Manulife then filed a Position Paper with Motion to Dismiss dated February 27,
2003, 9 in which it alleged that Tongko is not its employee, and that it did not
exercise "control" over him. Thus, Manulife claimed that the NLRC has no
jurisdiction over the case. aIHSEc
In a Decision dated April 15, 2004, Labor Arbiter Marita V. Padolina dismissed
the complaint for lack of an employer-employee relationship. Padolina found that
applying the four-fold test in determining the existence of an employer-employee
relationship, none was found in the instant case. The dispositive portion thereof
states:
WHEREFORE, premises considered, judgment is hereby rendered
DISMISSING the instant complaint for lack of jurisdiction, there being no
employer-employee relationship between the parties.
SO ORDERED.
Tongko appealed the arbiter's Decision to the NLRC which reversed the same
and rendered a Decision dated September 27, 2004 finding Tongko to have been
illegally dismissed.
The NLRC's First Division, while finding an employer-employee relationship
between Manulife and Tongko applying the four-fold test, held Manulife liable for
illegal dismissal. It further stated that Manulife exercised control over Tongko as
evidenced by the letter dated November 6, 2001 of De Dios and wrote:
The above-mentioned letter shows the extent to which respondents
controlled complainant's manner and means of doing his work and
achieving the goals set by respondents. The letter shows how
respondents concerned themselves with the manner complainant
managed the Metro North Region as Regional Sales Manager, to the
point that respondents even had a say on how complainant interacted
with other individuals in the Metro North Region. The letter is in fact
replete with comments and criticisms on how complainant carried out his
functions as Regional Sales Manager.
More importantly, the letter contains an abundance of directives or
orders that are intended to directly affect complainant's authority and
manner of carrying out his functions as Regional Sales Manager. 10 . . .
Additionally, the First Division also ruled that:
Further evidence of [respondents'] control over complainant can be
found in the records of the case. [These] are the different codes of
conduct such as the Agent Code of Conduct, the Manulife Financial
Code of Conduct, and the Manulife Financial Code of Conduct
Agreement, which serve as the foundations of the power of control
wielded by respondents over complainant that is further manifested in
the different administrative and other tasks that he is required to perform.
These codes of conduct corroborate and reinforce the display of
respondents' power of control in their 06 November 2001 Letter to
complainant. 11 caITAC
The fallo of the September 27, 2004 Decision reads:
WHEREFORE, premises considered, the appealed Decision is hereby
reversed and set aside. We find complainant to be a regular employee of
respondent Manulife and that he was illegally dismissed from
employment by respondents.
In lieu of reinstatement, respondent Manulife is hereby ordered to pay
complainant separation pay as above set forth. Respondent Manulife is
further ordered to pay complainant backwages from the time he was
dismissed on 02 January 2002 up to the finality of this decision also as
indicated above.
xxx xxx xxx
All other claims are hereby dismissed for utter lack of merit.
From this Decision, Manulife filed a motion for reconsideration which was denied
by the NLRC First Division in a Resolution dated December 16, 2004. 12
Thus, Manulife filed an appeal with the CA docketed as CA-G.R. SP No. 88253.
Thereafter, the CA issued the assailed Decision dated March 29, 2005, finding
the absence of an employer-employee relationship between the parties and
deeming the NLRC with no jurisdiction over the case. The CA arrived at this
conclusion while again applying the four-fold test. The CA found that Manulife did
not exercise control over Tongko that would render the latter an employee of
Manulife. The dispositive portion reads:
WHEREFORE, premises considered, the present petition is hereby
GRANTED and the writ prayed for accordingly GRANTED. The assailed
Decision dated September 27, 2004 and Resolution dated December 16,
2004 of the National Labor Relations Commission in NLRC NCR Case
No. 00-11-10330-2002 (NLRC NCR CA No. 040220-04) are hereby
ANNULLED and SET ASIDE. The Decision dated April 15, 2004 of
Labor Arbiter Marita V. Padolina is hereby REINSTATED. IcAaEH
Hence, Tongko filed this petition and presented the following issues:
A
The Court of Appeals committed grave abuse of discretion in granting
respondents' petition for certiorari.
B
The Court of Appeals committed grave abuse of discretion in annulling
and setting aside the Decision dated September 27, 2004 and
Resolution dated December 16, 2004 in finding that there is no
employer-employee relationship between petitioner and respondent.
C
The Court of Appeals committed grave abuse of discretion in annulling
and setting aside the Decision dated September 27, 2004 and
Resolution dated December 16, 2004 which found petitioner to have
been illegally dismissed and ordered his reinstatement with payment of
backwages. 13
Restated, the issues are: (1) Was there an employer-employee relationship
between Manulife and Tongko? and (2) If yes, was Manulife guilty of illegal
dismissal?
The Court's Ruling
This petition is meritorious.
Tongko Was An Employee of Manulife
The basic issue of whether or not the NLRC has jurisdiction over the case
resolves itself into the question of whether an employer-employee relationship
existed between Manulife and Tongko. If no employer-employee relationship
existed between the two parties, then jurisdiction over the case properly lies with
the Regional Trial Court. AEDCHc
In the determination of whether an employer-employee relationship exists
between two parties, this Court applies the four-fold test to determine the
existence of the elements of such relationship. In Pacific Consultants
International Asia, Inc. v. Schonfeld, the Court set out the elements of an
employer-employee relationship, thus:
Jurisprudence is firmly settled that whenever the existence of an
employment relationship is in dispute, four elements constitute the
reliable yardstick: (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's conduct. It is the so-called "control test"
which constitutes the most important index of the existence of the
employer-employee relationship that is, whether the employer controls or
has reserved the right to control the employee not only as to the result of
the work to be done but also as to the means and methods by which the
same is to be accomplished. Stated otherwise, an employer-employee
relationship exists where the person for whom the services are
performed reserves the right to control not only the end to be achieved
but also the means to be used in reaching such end. 14
The NLRC, for its part, applied the four-fold test and found the existence of all the
elements and declared Tongko an employee of Manulife. The CA, on the other
hand, found that the element of control as an indicator of the existence of an
employer-employee relationship was lacking in this case. The NLRC and the CA
based their rulings on the same findings of fact but differed in their
interpretations.
The NLRC arrived at its conclusion, first, on the basis of the letter dated
November 6, 2001 addressed by De Dios to Tongko. According to the NLRC, the
letter contained "an abundance of directives or orders that are intended to
directly affect complainant's authority and manner of carrying out his functions as
Regional Sales Manager." It enumerated these "directives" or "orders" as follows:
1. You will hire at your expense a competent assistant who can unload
you of much of the routine tasks which can be easily delegated. . . .
xxx xxx xxx
This assistant should be hired immediately.
2. Effective immediately, Kevin and the rest of the Agency Operations
will deal with the North Star Branch (NSB) in autonomous fashion . . . .
xxx xxx xxx
I have decided to make this change so as to reduce your span of control
and allow you to concentrate more fully on overseeing the remaining
groups under Metro North, your Central Unit and the rest of the Sales
Managers in Metro North. . . .
3. Any resistance or holding back by anyone will be dealt with
accordingly.
4. I have been straightforward in this my letter and I know that we can
continue to work together. . . but it will have to be on my terms. Anything
else is unacceptable! SaICcT
The NLRC further ruled that the different codes of conduct that were applicable
to Tongko served as the foundations of the power of control wielded by Manulife
overTongko that is further manifested in the different administrative and other
tasks that he was required to perform.
The NLRC also found that Tongko was required to render exclusive service to
Manulife, further bolstering the existence of an employer-employee relationship.
Finally, the NLRC ruled that Tongko was integrated into a management structure
over which Manulife exercised control, including the actions of its officers. The
NLRC held that such integration added to the fact that Tongko did not have his
own agency belied Manulife's claim that Tongko was an independent contractor.
The CA, however, considered the finding of the existence of an employer-
employee relationship by the NLRC as far too sweeping having as its only basis
the letter dated November 6, 2001 of De Dios. The CA did not concur with the
NLRC's ruling that the elements of control as pointed out by the NLRC are
"sufficient indicia of control that negates independent contractorship and
conclusively establish an employer-employee relationship
between" 15 Tongko and Manulife. The CA ruled that there is no employer-
employee relationship between Tongko and Manulife.
An impasse appears to have been reached between the CA and the NLRC on
the sole issue of control over an employee's conduct. It bears clarifying that such
control not only applies to the work or goal to be done but also to the means and
methods to accomplish it. 16 In Sonza v. ABS-CBN Broadcasting Corporation, we
explained that not all forms of control would establish an employer-employee
relationship, to wit:
Further, not every form of control that a party reserves to himself over
the conduct of the other party in relation to the services being rendered
may be accorded the effect of establishing an employer-employee
relationship. The facts of this case fall squarely with the case of Insular
Life Assurance Co., Ltd. vs. NLRC. In said case, we held that:
Logically, the line should be drawn between rules that merely
serve as guidelines towards the achievement of the mutually
desired result without dictating the means or methods to be
employed in attaining it, and those that control or fix the
methodology and bind or restrict the party hired to the use of
such means. The first, which aim only to promote the result,
create no employer-employee relationship unlike the second,
which address both the result and the means used to achieve
it. 17 (Emphasis supplied.) TcSaHC
We ruled in Insular Life Assurance Co., Ltd. v. NLRC (Insular) that:
It is, therefore, usual and expected for an insurance company to
promulgate a set of rules to guide its commission agents in selling its
policies that they may not run afoul of the law and what it requires or
prohibits. Of such a character are the rules which prescribe the
qualifications of persons who may be insured, subject insurance
applications to processing and approval by the Company, and also
reserve to the Company the determination of the premiums to be paid
and the schedules of payment. None of these really invades the agent's
contractual prerogative to adopt his own selling methods or to sell
insurance at his own time and convenience, hence cannot justifiably be
said to establish an employer-employee relationship between him and
the company. 18
Hence, we ruled in Insular that no employer-employee relationship existed
therein. However, such ruling was tempered with the qualification that had there
been evidence that the company promulgated rules or regulations that effectively
controlled or restricted an insurance agent's choice of methods or the methods
themselves in selling insurance, an employer-employee relationship would have
existed. In other words, the Court in Insular in no way definitively held that
insurance agents are not employees of insurance companies, but rather made
the same a case-to-case basis. We held:
The respondents limit themselves to pointing out that Basiao's contract
with the Company bound him to observe and conform to such rules and
regulations as the latter might from time to time prescribe. No showing
has been made that any such rules or regulations were in fact
promulgated, much less that any rules existed or were issued
which effectively controlled or restricted his choice of methods or
the methods themselves of selling insurance. Absent such
showing, the Court will not speculate that any exceptions or
qualifications were imposed on the express provision of the
contract leaving Basiao ". . . free to exercise his own judgment as
to the time, place and means of soliciting insurance." 19 (Emphasis
supplied.) HECTaA
There is no conflict between our rulings in Insular and in Great Pacific Life
Assurance Corporation. We said in the latter case:
[I]t cannot be gainsaid that Grepalife had control over private
respondents' performance as well as the result of their efforts. A
cursory reading of their respective functions as enumerated in their
contracts reveals that the company practically dictates the manner
by which their jobs are to be carried out. For instance, the District
Manager must properly account, record and document the company's
funds spot-check and audit the work of the zone supervisors, conserve
the company's business in the district through 'reinstatements', follow up
the submission of weekly remittance reports of the debit agents and
zone supervisors, preserve company property in good condition, train
understudies for the position of district manager, and maintain his quota
of sales (the failure of which is a ground for termination). On the other
hand, a zone supervisor must direct and supervise the sales activities of
the debit agents under him, conserve company property through
"reinstatements", undertake and discharge the functions of absentee
debit agents, spot-check the records of debit agents, and insure proper
documentation of sales and collections by the debit
agents. 20 (Emphasis supplied.)
Based on the foregoing cases, if the specific rules and regulations that are
enforced against insurance agents or managers are such that would directly
affect the means and methods by which such agents or managers would achieve
the objectives set by the insurance company, they are employees of the
insurance company.
In the instant case, Manulife had the power of control over Tongko that would
make him its employee. Several factors contribute to this conclusion.
In the Agreement dated July 1, 1977 executed between Tongko and Manulife, it
is provided that:
The Agent hereby agrees to comply with all regulations and
requirements of the Company as herein provided as well as maintain a
standard of knowledge and competency in the sale of the Company's
products which satisfies those set by the Company and sufficiently
meets the volume of new business required of Production Club
membership. 21
Under this provision, an agent of Manulife must comply with three (3)
requirements: (1) compliance with the regulations and requirements of the
company; (2) maintenance of a level of knowledge of the company's products
that is satisfactory to the company; and (3) compliance with a quota of new
businesses. cETDIA
Among the company regulations of Manulife are the different codes of conduct
such as the Agent Code of Conduct, Manulife Financial Code of Conduct, and
Manulife Financial Code of Conduct Agreement, which demonstrate the power of
control exercised by the company over Tongko. The fact that Tongko was
obliged to obey and comply with the codes of conduct was not disowned by
respondents.
Thus, with the company regulations and requirements alone, the fact
that Tongko was an employee of Manulife may already be established. Certainly,
these requirements controlled the means and methods by which Tongko was to
achieve the company's goals.
More importantly, Manulife's evidence establishes the fact that Tongko was
tasked to perform administrative duties that establishes his employment with
Manulife.
In its Comment (Re: Petition for Review dated 15 April 2005) dated August 5,
2005, Manulife attached affidavits of its agents purportedly to support its claim
thatTongko, as a Regional Sales Manager, did not perform any administrative
functions. An examination of these affidavits would, however, prove the opposite.
In an Affidavit dated April 28, 2003, 22 John D. Chua, a Regional Sales Manager
of Manulife, stated:
4. On September 1, 1996, my services were engaged by Manulife as an
Agency Regional Sales Manager ("RSM") for Metro South Region
pursuant to an Agency Contract. As such RSM, I have the
following functions:
1. Refer and recommend prospective agents to Manulife
2. Coach agents to become productive
3. Regularly meet with, and coordinate activities of agents
affiliated to my region.
While Amada Toledo, a Branch Manager of Manulife, stated in her Affidavit dated
April 29, 2003 23 that:
3. In January 1997, I was assigned as a Branch Manager ("BM") of
Manulife for the Metro North Sector;
4. As such BM, I render the following services:
a. Refer and recommend prospective agents to Manulife;
b. Train and coordinate activities of other commission
agents;
c. Coordinate activities of Agency Managers who, in turn,
train and coordinate activities of other commission
agents;
d. Achieve agreed production objectives in terms of Net
Annualized Commissions and Case Count and
recruitment goals; and
e. Sell the various products of Manulife to my personal
clients.
While Ma. Lourdes Samson, a Unit Manager of Manulife, stated in her Affidavit
dated April 28, 2003 24 that:
3. In 1977, I was assigned as a Unit Manager ("UM") of North Peaks
Unit, North Star Branch, Metro North Region;
4. As such UM, I render the following services:
a. To render or recommend prospective agents to be
licensed, trained and contracted to sell Manulife
products and who will be part of my Unit;
b. To coordinate activities of the agents under my Unit in
their daily, weekly and monthly selling activities,
making sure that their respective sales targets are
met;
c. To conduct periodic training sessions for my agents to
further enhance their sales skills. aDTSHc
d. To assist my agents with their sales activities by way of
joint fieldwork, consultations and one-on-one
evaluation and analysis of particular accounts.
e. To provide opportunities to motivate my agents to
succeed like conducting promos to increase sales
activities and encouraging them to be involved in
company and industry activities.
f. To provide opportunities for professional growth to my
agents by encouraging them to be a member of the
LUCAP (Life Underwriters Association of the
Philippines).
A comparison of the above functions and those contained in the Agreement with
those cited in Great Pacific Life Assurance Corporation 25 reveals a striking
similarity that would more than support a similar finding as in that case. Thus,
there was an employer-employee relationship between the parties.
Additionally, it must be pointed out that the fact that Tongko was tasked with
recruiting a certain number of agents, in addition to his other administrative
functions, leads to no other conclusion that he was an employee of Manulife.
In his letter dated November 6, 2001, De Dios harped on the direction of Manulife
of becoming a major agency-led distribution company whereby greater agency
recruitment is required of the managers, including Tongko. De Dios made it clear
that agent recruitment has become the primary means by which Manulife intends
to sell more policies. More importantly, it is Tongko's alleged failure to follow this
principle of recruitment that led to the termination of his employment with
Manulife. With this, it is inescapable that Tongko was an employee of Manulife.
Tongko Was Illegally Dismissed
In its Petition for Certiorari dated January 7, 2005 26 filed before the CA, Manulife
argued that even if Tongko is considered as its employee, his employment was
validly terminated on the ground of gross and habitual neglect of duties,
inefficiency, as well as willful disobedience of the lawful orders of Manulife.
Manulife stated: DHETIS
In the instant case, private respondent, despite the written reminder from
Mr. De Dios refused to shape up and altogether disregarded the latter's
advice resulting in his laggard performance clearly indicative of his willful
disobedience of the lawful orders of his superior. . . .
xxx xxx xxx
As private respondent has patently failed to perform a very fundamental
duty, and that is to yield obedience to all reasonable rules, orders and
instructions of the Company, as well as gross failure to reach at least
minimum quota, the termination of his engagement from Manulife is
highly warranted and therefore, there is no illegal dismissal to speak of.
It is readily evident from the above-quoted portions of Manulife's petition that it
failed to cite a single iota of evidence to support its claims. Manulife did not even
point out which order or rule that Tongko disobeyed. More importantly, Manulife
did not point out the specific acts that Tongko was guilty of that would constitute
gross and habitual neglect of duty or disobedience. Manulife merely
cited Tongko's alleged "laggard performance", without substantiating such claim,
and equated the same to disobedience and neglect of duty.
We cannot, therefore, accept Manulife's position.
In Quebec, Sr. v. National Labor Relations Commission, we ruled that:
When there is no showing of a clear, valid and legal cause for the
termination of employment, the law considers the matter a case of illegal
dismissal and the burden is on the employer to prove that the
termination was for a valid or authorized cause. This burden of proof
appropriately lies on the shoulders of the employer and not on the
employee because a worker's job has some of the characteristics of
property rights and is therefore within the constitutional mantle of
protection. No person shall be deprived of life, liberty or property without
due process of law, nor shall any person be denied the equal protection
of the laws.
Apropos thereto, Art. 277, par. (b), of the Labor Code mandates in
explicit terms that the burden of proving the validity of the termination of
employment rests on the employer. Failure to discharge this evidential
burden would necessarily mean that the dismissal was not justified, and,
therefore, illegal. 27 IcTEaC
We again ruled in Times Transportation Co., Inc. v. National Labor Relations
Commission that:
The law mandates that the burden of proving the validity of the
termination of employment rests with the employer. Failure to discharge
this evidentiary burden would necessarily mean that the dismissal was
not justified, and, therefore, illegal. Unsubstantiated suspicions,
accusations and conclusions of employers do not provide for legal
justification for dismissing employees. In case of doubt, such cases
should be resolved in favor of labor, pursuant to the social justice policy
of our labor laws and Constitution. 28
This burden of proof was clarified in Community Rural Bank of San Isidro (N.E.),
Inc. v. Paez to mean substantial evidence, to wit:
The Labor Code provides that an employer may terminate the services
of an employee for just cause and this must be supported by substantial
evidence. The settled rule in administrative and quasi-judicial
proceedings is that proof beyond reasonable doubt is not required in
determining the legality of an employer's dismissal of an employee, and
not even a preponderance of evidence is necessary as substantial
evidence is considered sufficient. Substantial evidence is more than a
mere scintilla of evidence or relevant evidence as a reasonable mind
might accept as adequate to support a conclusion, even if other minds,
