FIRST DIVISION
|
POSEIDON FISHING/TERRY DE JESUS, petitioners, - versus - NATIONAL LABOR
RELATIONS COMMISSION and JIMMY S. ESTOQUIA,
Respondents. |
|
G.R. No. 168052 Present: PANGANIBAN,
C.J. Chairperson, YNARES-SANTIAGO, AUSTRIA-MARTINEZ, CALLEJO, SR.,* and CHICO-NAZARIO, JJ. Promulgated: February 20, 2006 |
x- - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
-x
CHICO-NAZARIO, J.:
Article 280 of the Labor
Code, in its truest sense, distinguishes between regular and casual employees
to protect the interests of labor. Its language evidently manifests the intent
to safeguard the tenurial interest of the worker who may be denied the rights
and benefits due a regular employee by virtue of lopsided agreements with the
economically powerful employer who can maneuver to
keep an employee on a casual status for as long as convenient.[1]
This
petition assails the Decision[2] of the Court of Appeals dated
As thoroughly told by
the Court of Appeals and the Labor Arbiter, the
particulars are beyond dispute:
Petitioner
Poseidon Fishing is a fishing company engaged in the deep-sea fishing
industry. Its various vessels catch fish
in the outlying islands of the
Private
respondent was employed by Poseidon Fishing in January 1988 as Chief Mate.
After five years, he was promoted to Boat Captain. In 1999, petitioners, without
reason, demoted respondent from Boat Captain to Radio Operator of petitioner
Poseidon.[4] As a Radio Operator, he monitored the daily
activities in their office and recorded in the duty logbook the names of the
callers and time of their calls.[5]
On
Around
At
around P55,000.00).
However, he refused to accept the amount as he believed that he did
nothing illegal to warrant his immediate discharge from work.[8]
Rising
to the occasion, private respondent filed a complaint for illegal dismissal on
In
private respondent’s position paper, he averred that petitioner Poseidon
employed him as a Chief Mate sometime in January 1988. He claimed that he was promoted to the
position of Boat Captain five years after. However, in 1999, he was demoted
from Boat Captain to Radio Operator without any reason and shortly, he was
terminated without just cause and without due process of law.
Conversely,
petitioners Poseidon and Terry de Jesus strongly asserted that private
respondent was a contractual or a casual employee whose services could be
terminated at the end of the contract even without a just or authorized cause
in view of Article 280 of the Labor Code, which 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.
An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such actually exists. (Emphasis supplied.)
Petitioners further posited that when
the private respondent was engaged, it was made clear to him that he was being
employed only on a “por viaje” or per trip basis and that
his employment would be terminated at the end of the trip for which he was
being hired. As such, the private
respondent could not be entitled to separation pay and other monetary claims.
On
5 December 2000, following the termination of the hearing of the case, the
Labor Arbiter decided in favor of private respondent. The Labor Arbiter held that even if the
private respondent was a casual employee, he became a regular employee after a
period of one year and, thereafter, had attained tenurial
security which could only be lost due to a legal cause after observing due
process. The dispositive
portion of the Decision reads:
CONFORMABLY WITH THE FOREGOING, judgment is hereby
rendered finding complainant to have been illegally dismissed and so must
immediately be reinstated to his former position as radio operator and paid by
respondent[s] in solidum
his backwages which as of December 3, 2000 had
already accumulated in the sum of P35,880.00 plus his unpaid one (1)
week salary in the sum of P1,794.00.
Respondents
are further ordered to pay attorney’s fees in a sum equivalent to 10% of the
awarded claims.[9]
Consequently, the petitioners filed their Memorandum of Appeal with the NLRC for the reversal of the aforesaid decision. On 24 September 2002, the NLRC affirmed the decision of the Labor Arbiter with the modification, inter alia, that: (a) the private respondent would be paid his separation pay equivalent to one-half of his monthly pay for every year of service that he has rendered in lieu of reinstatement; and (b) an amount equivalent to six months salary should be deducted from his full backwages because it was his negligence in the performance of his work that brought about his termination. It held:
WHEREFORE, the decision is
modified as follows:
1.
The amount equivalent to six (6) months salary is to be deducted from
the total award of backwages;
2.
The respondent is ordered to pay complainant separation pay equivalent
to one-half (1/2) month pay for every year of service counted from 1998; x x x
3.
The respondent is ordered to pay complainant’s unpaid wages in the
amount of P1,794.00; and
4.
Respondent is ordered to pay attorney’s fees in a sum equivalent to ten
percent (10%) of the awarded claims.[10]
Petitioners
moved for the reconsideration of the NLRC decision, but were denied in a
Resolution dated
Petitioners filed a
Petition for Certiorari with the
Court of Appeals, imputing grave abuse of discretion, but the Court of Appeals
found none. The following is the fallo of the decision:
WHEREFORE, the foregoing premises considered, the
instant petition is hereby DENIED.[11]
In a last
attempt at vindication, petitioners filed the present petition for review with
the following assignment of errors:
I.
THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE RESPONDENT WAS A REGULAR
EMPLOYEE WHEN IN TRUTH HE WAS A CONTRACTUAL/PROJECT/SEASONAL EMPLOYEE.
II.
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE RESPONDENT WAS
ILLEGALLY DISMISSED FROM EMPLOYMENT.
III.
THE HONORABLE COURT OF APPEALS ERRED IN NOT CONSIDERING THE RESPONDENT A
SEASONAL EMPLOYEE AND APPLYING THE RULING IN RJL MARTINEZ FISHING CORPORATION vs. NLRC THAT “the activity of fishing is a
continuous process and could hardly be considered as seasonal in nature.”
IV.
THE HONORABLE COURT OF APPEALS ERRED IN HOLDING THAT THE RESPONDENT IS
ENTITLED TO BACKWAGES, SEPARATION PAY, ATTORNEY’S FEES AND OTHER MONETARY
BENEFITS.
V.
THE HONORABLE COURT OF APPEALS ERRED IN NOT RESOLVING THE PRAYER FOR THE
ISsuance of preliminary injunction and/or temporary restraining order.[12]
The fundamental issue entails the
determination of the nature of the contractual relationship between petitioners
and private respondent, i.e., was private
respondent a regular employee at the time his employment was terminated on
Asserting
their right to terminate the contract with private respondent
per the “Kasunduan”
with him, petitioners pointed to the
provision thereof stating that he was being employed only
on a ‘’por viaje’’ basis
and that his employment would be terminated at the end of the trip for which he
was being hired, to
wit:
NA, kami ay sumasang-ayon na MAGLINGKOD at
GUMAWA ng mga gawaing magmula sa pag-alis ng
lantsa sa pondohan sa Navotas
patungo sa palakayahan; pabalik sa pondohan ng
lantsa sa Navotas hanggang sa paghango ng mga
kargang isda.[13]
Petitioners
lament that fixed-term employment contracts are recognized as valid under the
law notwithstanding the provision of Article 280 of the Labor Code. Petitioners theorize that the Civil Code has
always recognized the validity of contracts with a fixed and definite period,
and imposes no restraints on the freedom of the parties to fix the duration of
the contract, whatever its object, be it species, goods or services, except the
general admonition against stipulations contrary to law, morals, good customs,
public order and public policy. Quoting Brent School Inc. v. Zamora,[14]
petitioners are hamstrung on their reasoning that under the Civil Code,
fixed-term employment contracts are not limited, as they are under the present
Labor Code, to those that by their nature are seasonal or for specific projects
with pre-determined dates of completion as they also include those to which the
parties by free choice have assigned a specific date of termination. Hence, persons may enter into such contracts
as long as they are capacitated to act, petitioners bemoan.
We
are far from persuaded by petitioners’ ratiocination.
Petitioners’ construal of Brent School, Inc. v. Zamora, has certainly gone astray. The
subject of scrutiny in the Brent case
was the employment contract inked between the school and one engaged as its
Athletic Director. The contract fixed a specific term of five years from the
date of execution of the agreement. This
Court upheld the validity of the contract between therein petitioner and
private respondent, fixing the latter’s period of employment. This Court laid down the following criteria
for judging the validity of such fixed-term contracts, to wit:
Accordingly, and since the entire purpose
behind the development of legislation culminating in the present Article 280 of
the Labor Code clearly appears to have been, as already observed, to prevent
circumvention of the employee’s right to be secure in his tenure, the clause in
said article indiscriminately and completely ruling out all written or oral
agreements conflicting with the concept of regular employment as defined
therein should be construed to refer to the substantive evil that the Code
itself has singled out: agreements
entered into precisely to circumvent security of tenure. It
should have no application to instances where a fixed period of employment was
agreed upon knowingly and voluntarily by the parties, without any force, duress
or improper pressure being brought to bear upon the employee and absent any
other circumstances vitiating his consent, or where it satisfactorily appears
that the employer and employee dealt with each other on more or less equal
terms with no moral dominance whatever being exercised by the former over the
latter. Unless thus limited in its
purview, the law would be made to apply to purposes other than those explicitly
stated by its framers; it thus becomes pointless and arbitrary, unjust in its
effects and apt to lead to absurd and unintended consequences.[15]
(Emphasis supplied.)
Brent cited some familiar examples of
employment contracts which may neither be for seasonal work nor for specific
projects, but to which a fixed term is an essential and natural appurtenance, i.e., overseas employment contracts, appointments to the positions of
dean, assistant dean, college secretary, principal, and other administrative
offices in educational institutions, which are by practice or tradition rotated
among the faculty members, and where fixed terms are a necessity without which
no reasonable rotation would be possible.[16] Thus, in Brent, the acid test
in considering fixed-term contracts as valid is: if from the circumstances it is apparent that periods have been imposed
to preclude acquisition of tenurial security by the
employee, they should be disregarded for being contrary to public policy.
On the same tack as Brent, the Court
in Pakistan International Airlines
Corporation v. Ople,[17]
ruled in this wise:
It is apparent from Brent School that the critical
consideration is the presence or absence of a substantial indication that the
period specified in an employment agreement was designed to circumvent the
security of tenure of regular employees which is provided for in Articles 280
and 281 of the Labor Code. This
indication must ordinarily rest upon some aspect of the agreement other than
the mere specification of a fixed term of the employment agreement, or upon
evidence aliunde of the intent to evade.
Consistent with the pronouncements in
these two earlier cases, the Court, in Cielo
v. National Labor Relations Commission,[18]
did not hesitate to nullify employment contracts stipulating a fixed term after
finding that “the purpose behind these
individual contracts was to evade the application of the labor laws.”
In the case under consideration, the
agreement has such an objective - to frustrate the security of tenure of
private respondent- and fittingly, must be nullified. In this case,
petitioners’ intent to evade the application of Article 280 of the Labor Code
is unmistakable. In a span of 12 years, private respondent worked for
petitioner company first as a Chief Mate, then Boat Captain, and later as Radio
Operator. His job was directly related to the deep-sea fishing business of
petitioner Poseidon. His work was,
therefore, necessary and important to the business of his employer. Such being the scenario involved, private
respondent is considered a regular employee of petitioner under Article 280 of
the Labor Code, the law in point, which 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.
An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such actually exists. (Emphasis supplied.)
Moreover, unlike in the Brent case where the period of the contract was fixed and clearly
stated, note that in the case at bar, the terms of employment of private
respondent as provided in the Kasunduan was not only vague, it also failed to provide an actual or specific date or period for the contract. As adroitly observed by the Labor Arbiter:
There is nothing in the
contract that says complainant, who happened to be the captain of said vessel,
is a casual, seasonal or a project worker. The date
Actually, the exception under
Article 280 of the Labor Code in which the
respondents have taken refuge to justify its position does not apply in the
instant case. The proviso, “Except where the employment has been fixed for a
specific project or undertaking the completion or determination 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.” (Article 280 Labor Code), is inapplicable because the very contract
adduced by respondents is unclear and uncertain. The kasunduan
does not specify the duration that complainant had been hired x x x.[19]
(Emphasis supplied.)
Furthermore, as petitioners themselves admitted
in their petition before this Court, private respondent was repeatedly hired as part of the boat’s
crew and he acted in various capacities onboard the vessel. In Integrated Contractor and Plumbing Works, Inc. v. National Labor Relations Commission,[20] we held
that 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. And, 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. [21]
In Bustamante v. National Labor Relations Commission,[22]
the Court expounded on what are regular employees under Article 280 of the Labor Code, viz:
It is undisputed that petitioners were illegally
dismissed from employment. Article 280 of the Labor Code, states:
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.
An employment shall be deemed to be casual if it is not covered by
the preceding paragraph: Provided, that, any employee who has rendered at least
one year of service, whether such service is continuous or broken, shall be considered
a regular employee with respect to the activity in which he is employed and his
employment shall continue while such activity exists.
This provision draws a line between regular and casual employment,
a distinction however often abused by employers. The provision enumerates two (2) kinds of
employees, the regular employees and the casual employees. The regular employees consist of the
following:
1) those 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
such service is continuous or broken.[23]
Ostensibly, in the case at bar, at different times, private respondent occupied the position of Chief Mate, Boat Captain, and Radio Operator. In petitioners’ interpretation, however, this act of hiring and re-hiring actually highlight private respondent’s contractual status saying that for every engagement, a fresh contract was entered into by the parties at the outset as the conditions of employment changed when the private respondent filled in a different position. But to this Court, the act of hiring and re-hiring in various capacities is a mere gambit employed by petitioner to thwart the tenurial protection of private respondent. Such pattern of re-hiring and the recurring need for his services are testament to the necessity and indispensability of such services to petitioners’ business or trade.[24]
Petitioners would brush off private respondent’s
length of service by stating that he had worked for the company merely for
several years[25]
and that in those times, his services were not exclusive to petitioners. On the other hand, to prove his claim that he
had continuously worked for petitioners from 1988 to 2000, private respondent
submitted a copy of his payroll[26]
from
To recapitulate, it was after 12 long years of
having private respondent under its wings when petitioners, possibly sensing a
brewing brush with the law as far as private respondent’s employment is
concerned, finally found a loophole to kick private respondent out when the
latter failed to properly record a
As the records bear out, private respondent
himself seasonably realized his oversight and in no time recorded the
Petitioners
next assert that deep-sea fishing is a seasonal industry because catching of
fish could only be undertaken for a limited duration or seasonal within a given
year. Thus, according to petitioners, private respondent was a seasonal or
project employee.
We
are not won over.
As correctly pointed out by the Court
of Appeals, the “activity of catching fish is a continuous process and could
hardly be considered as seasonal in nature.”[33] In Philex Mining Corp. v.
National Labor Relations Commission,[34]
we defined project employees as those workers hired (1) for a specific project
or undertaking, and (2) the completion or termination of such project has been
determined at the time of the engagement of the employee. The principal test
for determining whether particular employees are “project employees” as
distinguished from “regular employees,” is whether or not the “project
employees” were assigned to carry out a “specific project or undertaking,” the
duration and scope of which were specified at the time the employees were engaged for
that project. In this case,
petitioners have not shown that private respondent was informed that he will be
assigned to a “specific project or undertaking.” As earlier noted, neither has it been
established that he was informed of the duration and scope of such project or
undertaking at the time of their engagement.
More to the point, in Maraguinot, Jr. v. National Labor Relations
Commission,[35]
we ruled that once a project or work pool employee has been: (1) continuously,
as opposed to intermittently, re-hired by the same employer for the same tasks
or nature of tasks; and (2) these tasks are vital, necessary and indispensable
to the usual business or trade of the employer, then the employee must be
deemed a regular employee.
In fine, inasmuch as private respondent’s functions as described above are no doubt “usually necessary or desirable in the usual business or trade” of petitioner fishing company and he was hired continuously for 12 years for the same nature of tasks, we are constrained to say that he belongs to the ilk of regular employee. Being one, private respondent’s dismissal without valid cause was illegal. And, where illegal dismissal is proven, the worker is entitled to back wages and other similar benefits without deductions or conditions.[36]
Indeed, it behooves this Court to be ever
vigilant in checking the unscrupulous efforts of some of our entrepreneurs,
primarily aimed at maximizing their return on investments at the expense of the
lowly workingman.[37]
WHEREFORE, the present petition is hereby DENIED. The Decision of
the Court of Appeals dated
SO ORDERED.
|
|
MINITA V.
CHICO-NAZARIO
Associate Justice |
WE
CONCUR:
Chief Justice
Chairperson
Associate
Justice Associate
Justice
|
|
|
|
|
|
|
On Leave ROMEO J.
CALLEJO, SR. Associate Justice |
|
Pursuant to Article VIII, Section
13 of the Constitution, it is hereby certified that the conclusions in the
above Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
|
|
ARTEMIO V.
PANGANIBAN Chief Justice |
* On leave.
[1] Bustamante v. National Labor Relations Commission, 325 Phil. 415, 422 (1996), citing Baguio Country Club Corporation v. National Labor Relations Commission, G.R. No. 71662, 28 February 1992, 206 SCRA 643, 649.
[2] Penned
by Associate Justice Jose C. Reyes, Jr. with Associate Justices Delilah Vidallon-Magtolis and Perlita J. Tria Tirona, concurring. Rollo, pp. 70-81.
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14] G.R. No. 48494,
[15]
[16]
[17] G.R. No. 61594,
[18] G.R. No. 78693,
[19] Rollo, p. 143.
[20] G.R. No. 152427,
[21]
[22] Supra note 1.
[23]
[24] Integrated Contractor and Plumbing Works, Inc. v. National Labor Relations Commission, supra note 20, p. 273.
[25] Rollo, 24.
[26]
[27]
[28] Mayon Hotel & Restaurant v. Rolando Adana, G.R. No. 157634, 16 May 2005, 458 SCRA 609, 644.
[29] Article 282 of the
Labor Code enumerates the just causes for termination by the
employer: (a) serious misconduct or willful disobedience by the employee
of the lawful orders of his employer or the latter’s representative in
connection with the employee’s work; (b) gross and habitual neglect by the
employee of his duties; (c) fraud or willful breach by the employee of the
trust reposed in him by his employer or his duly authorized representative; (d)
commission of a crime or offense by the employee against the person of his
employer or any immediate member of his family or his duly authorized
representative; and (e) other causes analogous to the
foregoing. See Agabon
v. National Labor Relations Commission, G.R. No. 158693,
[30] Chua
v. National Labor Relations Commission, G.R. No. 146780,
[31] Rollo, p. 144.
[32]
[33] Rollo, p. 78, citing RJL Martinez Fishing Corporation v. National Labor Relations Commission, 212 Phil. 417, 424 (1984).
[34] 371 Phil. 48, 57 (1999).
[35] 348 Phil. 580, 606 (1998).
[36] Caurdanetaan Piece Workers
ART. 279. Security of Tenure. – In cases of regular employment, the employer
shall not terminate the services of an employee except for a just cause or when
authorized by this Title. An employee who is unjustly dismissed from work
shall be entitled to reinstatement without loss of seniority rights and other
privileges and to his full backwages, inclusive of
allowances, and to his other benefits or their monetary equivalent computed
from the time his compensation was withheld from him up to the time of his
actual reinstatement.
[37] Aurora Land Project Corp. v. National Labor Relations Commission, 334 Phil. 44, 48 (1997).