Republic of the
Supreme Court
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G.R. No. 167045 |
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RESORT and/or
SUSAN MUNRO, |
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Petitioners, |
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Present: |
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YNARES-SANTIAGO, J., |
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- versus - |
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Chairperson, |
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AUSTRIA-MARTINEZ, |
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CHICO-NAZARIO, |
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FEDERICO F.
VISCA, JOHNNY G. |
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NACHURA, and |
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BAREDO, RONALD Q.
TIBUS, |
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REYES, JJ. |
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RICHARD G. VISCA
and RAFFIE |
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G. VISCA, |
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Promulgated: |
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Respondents. |
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August 29, 2008 |
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D E C I S I O N
AUSTRIA-MARTINEZ, J.:
Before the Court
is a Petition for Review on Certiorari
under Rule 45 of the Rules of Court assailing the Decision[1]
dated
The present
controversy stemmed from five individual complaints[3]
for illegal
dismissal filed
on June 15, 1999 by Federico F. Visca (Visca), Johnny G. Barredo, Ronald
Q. Tibus, Richard G. Visca
and Raffie G. Visca
(respondents) against Cocomangas Hotel Beach Resort
and/or its owner-manager, Susan Munro (petitioners) before Sub-Regional
Arbitration Branch No. VI of the National Labor Relations
Commission (NLRC) in Kalibo, Aklan.
In their
consolidated Position Paper,[4]
respondents alleged that they were regular employees of petitioners, with
designations and dates of employment as follows:
Name Designation
Date
Employed
Federico F. Visca Foreman
Johnny G. Barredo Carpenter
Ronald Q. Tibus Mason
Richard G. Visca Carpenter April 1988
Raffie G. Visca Mason/Carpenter
tasked with the
maintenance and repair of the resort facilities; on May 8, 1999, Maria Nida Iñigo-Tañala, the Front Desk
Officer/Sales Manager, informed them not to report for work since the ongoing
constructions and repairs would be temporarily suspended because they caused
irritation and annoyance to the resort's guests; as instructed, they did not
report for work the succeeding days; John Munro, husband of petitioner Susan Munro,
subsequently visited respondent foreman Visca and
informed him that the work suspension was due to budgetary constraints; when
respondent Visca later discovered that four new
workers were hired to do respondents' tasks, he confronted petitioner Munro who
explained that respondents' resumption of work was not possible due to
budgetary constraints; when not less than ten workers were subsequently hired
by petitioners to do repairs in two
cottages of the resort and two workers were retained after the
completion without respondents being allowed to resume work, they filed their
individual complaints for illegal dismissal. In addition to reinstatement with payment of
full backwages, respondents prayed for payment of
premium pay for rest day, service incentive leave pay, 13th month
pay, and cost-of-living allowance, plus moral and exemplary damages and
attorney's fees.
In their
Position Paper,[5] petitioners denied any employer-employee
relationship with respondents and countered that respondent Visca
was an independent contractor who was called upon from time to time when some
repairs in the resort facilities were needed and the other respondents were selected
and hired by him.
On June 30,
2000, the Labor Arbiter (LA) rendered a Decision[6]
dismissing the complaint, holding that respondent Visca
was an independent contractor and the other respondents were hired by him to
help him with his contracted works at the resort; that there was no illegal
dismissal but completion of projects; that respondents were project workers,
not regular employees.
On
On
WHEREFORE,
the decision dated
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1. Federico F. Visca |
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2. Johnny G. Barredo |
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3. Ronald Q. Tibus |
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4. Richard C. Visca |
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5. Raffie C. Visca |
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6. Attorney's fees (10%) |
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Total Award |
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Petitioners
failed to convince the NLRC that respondent Visca was
not an independent contractor and the other respondents were selected and hired
by him. The NLRC held that respondents were
regular employees of petitioners since all the factors determinative of
employer-employee relationship were present and the work done by respondents was
clearly related to petitioners' resort business. It took into account the following: (a)
respondent Visca was reported by petitioners as an
employee in the Quarterly Social Security System (SSS) report; (b) all of the
respondents were certified to by petitioner Munro as workers and even commended
for their satisfactory performance; (c) respondents were paid their holiday and
overtime pay; and (d) respondents had been continuously in petitioners' employ
from three to twelve years and were all paid by daily wage given weekly.
On
On P10,000.00
to each complainant as financial assistance.
Respondents then
filed a Petition for Certiorari[14]
with the CA raising three issues for resolution: (a) whether or not the
respondents were project employees of petitioners; (b) whether or not the
respondents' dismissal from work was based on valid grounds; (c) whether or not
the NLRC had sufficient basis to overturn its own decision despite its
overwhelming findings that respondents were illegally dismissed.
On
WHEREFORE,
in view of the foregoing, judgment is hereby rendered by us REVERSING and
SETTING ASIDE the NLRC Resolution dated P50,000.00. The instant
case is hereby REMANDED to the 4th Division NLRC,
SO ORDERED.[16]
The CA held
respondents were regular employees, not project workers, since in the years
that petitioners repeatedly hired respondents' services, the former failed to
set, even once, specific periods when the employment relationship would be
terminated; that the repeated hiring of respondents established that the
services rendered by them were necessary and desirable to petitioners' resort
business; at the least, respondents were regular seasonal employees, hired
depending on the tourist season and when the need arose in maintaining
petitioners' resort for the benefit of guests.
In addition to
the amounts granted by the NLRC in its August 29, 2002 Decision, the CA awarded
respondents P50,000.00 as damages, since their
termination was attended by bad faith, in that petitioners not only gave
respondents the run-around but also blatantly hired others to take respondents'
place despite their claim that the so-called temporary stoppage of work was due
to budgetary constraints.
On
Petitioners then
filed the present petition[19] on
the following grounds:
I
THE
HONORABLE COURT OF APPEALS ERRED IN GIVING DUE COURSE TO THE SPECIAL CIVIL
ACTION UNDER RULE 65 NOTWITHSTANDING THE FACT THAT RESPONDENTS HAVE FAILED TO
PROVE THE GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION
THAT WOULD ALLOW THE NULLIFICATION OF THE ASSAILED RESOLUTION OF THE NATIONAL
LABOR RELATIONS COMMISSION.
II
THE
HONORABLE COURT OF APPEALS ERRED IN REVERSING AND SETTING ASIDE THE RESOLUTION
DATED
Petitioners argue
that the CA erred in giving due course to respondents' petition, since
respondents failed to recite specifically how the NLRC abused its discretion,
an allegation essentially required in a petition for certiorari under
Rule 45 of the Rules of Court; the three issues raised by respondents in
their petition before the CA required appreciation of the evidence presented
below and are therefore errors of judgment, not of jurisdiction; that the
factual findings of the LA and the NLRC on the lack of employer-employee
relationship between petitioners and respondents should be accorded not only
respect but finality.
On the other hand, respondents
contend that the issues raised by the petitioners call for reevaluation
of the evidence presented by the parties, which is not proper in petitions for
review under Rule 45 of the Rules of Court; in any case, they argue that they
have amply established that they are regular employees of petitioners, since
their jobs as carpenters, which include the repairs of furniture, motor boats,
cottages and windbreakers, are not at all foreign to the business of
maintaining a beach resort.
The petition is bereft of merit.
The extent of judicial review by certiorari of decisions or resolutions of the NLRC, as exercised
previously by this Court and now by the CA, is described in Zarate, Jr. v. Olegario,[21] thus:
The rule is
settled that the original and exclusive jurisdiction of this Court to review a
decision of respondent NLRC (or Executive Labor
Arbiter as in this case) in a petition for certiorari under Rule 65 does not normally include an inquiry
into the correctness of its evaluation of the evidence. Errors of judgment, as distinguished from
errors of jurisdiction, are not within the province of a special civil action
for certiorari, which is merely confined to issues of jurisdiction or grave abuse of discretion. It is thus incumbent upon petitioner to satisfactorily
establish that respondent Commission or executive labor arbiter acted
capriciously and whimsically in total disregard of evidence material to or even
decisive of the controversy, in order that the extraordinary writ of certiorari
will lie. By grave abuse of
discretion is meant such capricious and whimsical exercise of
judgment as is equivalent to lack of jurisdiction, and it must be shown that
the discretion was exercised arbitrarily or despotically. For certiorari to lie, there must be
capricious, arbitrary and whimsical exercise of power, the very antithesis of
the judicial prerogative in accordance with centuries of both civil law and
common law traditions.[22] (Emphasis supplied)
The CA, therefore, can take
cognizance of a petition for certiorari
if it finds that the NLRC, in its assailed decision or resolution, committed grave abuse of discretion by capriciously, whimsically, or
arbitrarily disregarding evidence which is material to or decisive of the
controversy. The CA cannot make this
determination without looking into the evidence presented by the parties. The appellate court needs to evaluate the
materiality or significance of the evidence, which is alleged to have been capriciously, whimsically, or arbitrarily disregarded
by the NLRC, in relation to all other evidence on
record.[23]
In Garcia v. National Labor Relations Commission,[24] the Court elucidated on when certiorari
can be properly resorted to, thus:
[I]n Ong v. People, we ruled that certiorari can be properly resorted to where
the factual findings complained of are not supported by the evidence on record.
Earlier, in Gutib v. Court of Appeals, we emphasized
thus:
[I]t has been said that a wide breadth
of discretion is granted a court of justice in certiorari proceedings. The cases in which certiorari will issue cannot be defined,
because to do so would be to destroy its comprehensiveness and usefulness.
So wide is the discretion of the court that authority is not
wanting to show that certiorari is more discretionary than either
prohibition or mandamus. In the exercise of our superintending control over
inferior courts, we are to be guided by all the circumstances of each
particular case “as the ends of justice may require.” So it is that the writ will be granted where necessary to
prevent a substantial wrong or to do substantial justice.
And in another case of recent
vintage, we further held:
In
the review of an NLRC decision through a special civil action for certiorari,
resolution is confined only to issues of jurisdiction and grave
abuse of discretion on
the part of the labor tribunal. Hence, the Court refrains from reviewing
factual assessments of lower courts and agencies exercising adjudicative
functions, such as the NLRC. Occasionally, however, the Court is constrained
to delve into factual matters where, as in the instant case, the findings of the NLRC contradict those of
the Labor Arbiter.
In
this instance, the Court in the exercise of its equity jurisdiction may look
into the records of the case and re-examine the questioned findings. As a
corollary, this Court is clothed with ample authority to review matters, even
if they are not assigned as errors in their appeal, if it finds that their consideration is necessary to arrive at a just
decision of the case. The same principles are now necessarily adhered to
and are applied by the Court of Appeals in its expanded jurisdiction over labor
cases elevated through a petition for certiorari; thus, we see no
error on its part when it made anew a factual determination of the matters and
on that basis reversed the ruling of the NLRC.[25] (Emphasis supplied)
Thus, pursuant
to Garcia, the appellate court can grant a petition for certiorari when the factual findings
complained of are not supported by the evidence on record; when it is necessary
to prevent a substantial wrong or to do substantial justice; when the findings
of the NLRC contradict those of the LA; and when necessary to arrive at a just
decision of the case.[26]
In the present case, respondents alleged
in its petition with the CA that the NLRC’s
conclusions had no basis in fact and in law, in that “it totally disregarded
the evidence of the [respondents] and gave credence to the [petitioners']
asseverations which were in themselves insufficient to overturn duly established
facts and conclusions.”[27] Consequently, the CA was correct in giving
due course to the Petition for Certiorari, since respondents drew
attention to the absence of substantial evidence to support the NLRC's complete turnabout from its original Decision dated
August 29, 2002 finding that respondents were regular employees, to its
subsequent Resolution dated February 27, 2003 classifying respondents as
project employees.
The next issue before the Court is whether the CA committed
an error in reversing the NLRC Resolution dated
Generally, the existence of an employer-employee relationship
is a factual matter that will not be delved into by this Court, since only
questions of law may be raised in petitions for review.[28] However, the
Court is constrained to resolve the issue of whether respondents are regular or
permanent employees due to the conflicting findings of fact of
the LA, the NLRC and the CA,
thus, necessitating
a review of the evidence on record.[29]
The petitioners were ambivalent in
categorizing respondents. In their
Position Paper[30] filed before the LA,
petitioners classified respondent Visca as an
independent contractor and the other respondents as his employees; while in
their Motion for Reconsideration[31] before the NLRC, petitioners treated
respondents as project employees.
Further, petitioners' position in their
Motion for Reconsideration before the NLRC runs contrary to their earlier
submission in their Position Paper before the LA. While initially advancing the absence of an
employer-employee relationship, petitioners on appeal, sang a different tune,
so to speak, essentially invoking the termination of the period of their
employer-employee relationship.
The NLRC should not have considered the
new theory offered by the petitioners in their Motion for Reconsideration. As the object of the pleadings is to draw the
lines of battle, so to speak, between the litigants and to indicate fairly the
nature of the claims or defenses of both parties, a party cannot subsequently
take a position contrary to, or inconsistent, with his pleadings.[32] It is a matter of law that when a party
adopts a particular theory and the case is tried and decided upon that theory
in the court below, he will not be permitted to change his theory on appeal. The case will be reviewed and decided on that
theory and not approached and resolved from a different point of view. To permit a party to change his theory on
appeal will be unfair to the adverse party.[33]
At any rate, after a careful examination
of the records, the Court finds that the CA did not err in finding that
respondents were regular employees, not project employees. A project employee
is one whose "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 service to be performed
is seasonal in nature and the employment is for the duration of the
season."[34] Before an employee hired on a per-project
basis can be dismissed, a report must be made to the nearest employment office,
of the termination of the services of the workers every time completes a
project, pursuant to Policy Instruction No. 20.[35]
In the present case, respondents cannot
be classified as project employees, since
they worked continuously for petitioners from three to twelve years without any
mention of a “project” to which they were specifically assigned. While they had designations as “foreman,”
“carpenter” and “mason,” they performed work other than carpentry or
masonry. They were tasked with the
maintenance and repair of the furniture, motor
boats, cottages, and windbreakers and other resort facilities. There is
likewise no evidence of the project employment contracts covering respondents'
alleged periods of employment. More
importantly, there is no evidence that petitioners reported the termination of
respondents' supposed project employment to the DOLE as project
employees. Department
Order No. 19, as well as the old Policy Instructions No. 20, requires employers
to submit a report of an employee’s termination to the nearest public
employment office every time his employment is terminated due to a completion
of a project. Petitioners' failure to
file termination reports is an indication that the respondents were not project employees but regular employees.[36]
This Court has held that an employment
ceases to be coterminous with specific projects when the employee is continuously
rehired due to the demands of employer’s business and re-engaged for many more
projects without interruption.[37]
The Court is not persuaded by
petitioners' submission that respondents' services are not necessary or
desirable to the usual trade or business of the resort. The repeated and continuing need for their
services is sufficient evidence of the necessity, if not indispensability, of
their services to petitioners' resort business.[38]
In Maraguinot, Jr. v. National Labor Relations Commission,[39]
the Court ruled that “once a project or work pool employee has been: (1)
continuously, as opposed to intermittently, rehired 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, pursuant to Article 280 of the Labor Code
and jurisprudence.”[40]
That respondents were regular employees
is further bolstered by the following evidence: (a) the SSS Quarterly Summary
of Contribution Payments[41] listing
respondents as employees of petitioners; (b) the Service Record Certificates
stating that respondents were employees of petitioners for periods ranging from
three to twelve years and all have given “very satisfactory performance”;[42]
(c) petty cash vouchers[43]
showing payment of respondents' salaries and holiday and overtime pays.
Thus, substantial evidence supported the
CA finding that respondents were regular employees. Being regular employees, they were
entitled to security of
tenure, and their
services may not be terminated except for causes provided by law.
Article 279[44]
of the Labor Code, as amended, provides that an illegally dismissed employee
shall be entitled to reinstatement, 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.
The Court notes that the NLRC, in its earlier
Decision dated
The fact that
the CA failed to consider this when it affirmed the August 29, 2002 decision of
the NLRC or that respondents themselves did not appeal the CA Decision on this matter,
does not bar this Court from ordering its modification. While as a general rule, a party who has not
appealed is not entitled to affirmative relief other than the ones granted in
the decision of the court below, this Court is imbued with sufficient authority
and discretion to review matters, not otherwise assigned as errors on appeal,
if it finds that their consideration is necessary in arriving at a complete and
just resolution of the case or to serve the interests of justice or to avoid
dispensing piecemeal justice.[45]
Besides, substantive rights like the award of backwages
resulting from illegal
dismissal must not be prejudiced by a
rigid and technical application of the rules.[46] The computation of the award for backwages from the time compensation was withheld up to the
time of actual reinstatement is a mere legal consequence of the finding that
respondents were illegally dismissed by petitioners.
WHEREFORE, the petition
is DENIED. The assailed Decision
dated July 30, 2004 and Resolution dated February 2, 2005 of the Court of
Appeals in CA-G.R. SP No. 78620 are AFFIRMED with MODIFICATION
that the award for backwages should be computed from
the time compensation was withheld up to the time of actual reinstatement.
Double costs
against petitioners.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE
CONCUR:
CONSUELO YNARES-SANTIAGO
Associate
Justice
Chairperson
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MINITA V. CHICO-NAZARIO Associate Justice |
ANTONIO EDUARDO B. NACHURA Associate Justice |
RUBEN T. REYES
Associate Justice
ATTESTATION
I attest that the conclusions in
the above Decision had been reached in consultation before the case was
assigned to the writer of the opinion of the Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
CERTIFICATION
Pursuant to Section 13, Article
VIII of the Constitution, and the Division Chairperson’s Attestation, it is
hereby certified that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
REYNATO S. PUNO
Chief Justice
[1] Penned
by Associate Justice Isaias P. Dicdican
and concurred in by Associate Justices Elvi John S.
Asuncion and Ramon Bato, Jr., CA rollo, p. 133.
[2] Penned
by Associate Justice Isaias P. Dicdican
and concurred in by Associate Justices Arsenio J. Magpale and Ramon Bato, Jr., CA rollo, p. 166.
[3] Records, pp. 1-10.
[4] Records,
p. 48.
[5] Records,
p. 45.
[6]
[7]
[8]
[9] Records,
p. 126.
[10]
[11]
[12]
[13]
[14] Records,
p. 2.
[15] Supra
note 1.
[16] CA
rollo, p. 138.
[17] CA
rollo, p. 149.
[18] Supra
note 2.
[19] Rollo, p. 12.
[20]
[21] 331 Phil. 278 (1996).
[22]
[23] Marival Trading, Inc. v. National Labor Relations
Commission, G.R. No. 169600, June
26, 2007, 525 SCRA 708, 722; DOLE
Philippines, Inc. v. Esteva, G.R. No. 161115,
November 30, 2006, 509 SCRA 332, 363.
[24] G.R.
No. 147427,
[25]
[26] Marival Trading, Inc. v. National Labor Relations
Commission, supra note 23.
[27] CA
rollo, p. 14.
[28] Pacquing v. Coca-Cola Philippines, Inc., G.R. No. 157966, January 31, 2008, 543 SCRA 344; Sigaya v. Mayuga,
G.R. No. 143254, August 18, 2005, 467 SCRA 341, 352; Centeno
v. Spouses Viray, 440 Phil. 881, 887 (2002); Villarico v. Court of Appeals, 424 Phil. 26,
32 (2002).
[29] Pacquing v. Coca-Cola Philippines, Inc., supra note 28; Heirs of Dicman v. Cariño, G.R. No. 146459, June 8, 2006, 490 SCRA 240, 261; Bank of the Philippine Islands v. Sarmiento, G.R. No. 146021, March 10, 2006, 484 SCRA 261, 267-268; Almendrala v. Ngo, G.R. No. 142408, September 20, 2005, 471 SCRA 311, 322.
[30] Records,
p. 45.
[31]
[32] Manila Electric Company v. Benamira, G.R.
No. 145271, July 14, 2005, 463 SCRA 331; Philippine Ports Authority v. City
of Iloilo, G.R. No. 109791, July 14, 2003, 406 SCRA 88, 95.
[33]
[34] Labor Code, Art.
280.
[35] Liganza
v. RBL Shipyard Corporation, G.R.
No. 159862, October 17, 2006, 504 SCRA 678, 684; Brahm Industries, Inc. v. National Labor Relations Commission, 345 Phil.
1077, 1083 (1997).
[36] Philippine Long Distance
Telephone Company, Inc. (PLDT) v. Ylagan, G.R. No. 155645, November 24, 2006, 508 SCRA 31,
36; Grandspan
Development Corporation v. Bernardo,
G.R. No. 141464, September 21, 2005, 470 SCRA 461, 470; Filipinas Pre-Fabricated Building Systems (Filsystems),
Inc. v. Puente, G.R. No. 153832, March 18, 2005, 453 SCRA 820, 827-828.
[37] Liganza v. RBL Shipyard
Corporation, supra note 35; Tomas Lao
Construction v. National Labor Relations Commission, 344 Phil. 268, 279 (1997).
[38] Universal
Robina Corporation v. Catapang, G.R. No. 164736, October 14, 2005, 473 SCRA 189,
204; Magsalin v. National Organization of
Working Men, 451 Phil. 254, 261 (2003).
[39] 348 Phil. 580 (1998).
[40]
[41] Exhibit
“A”, Records, p. 68.
[42]
[43] Exhibits
“B”, “B-1” to “B-6”, “G”, “G-1” to “G-3”, “H”, “H-1”to “H-6”, “I”, “I-1” to
“I-6”, “J”, “J-1” to “J-5”, Id. at 68.
[44] Labor Code, 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. (As amended by Sec. 34, Republic Act No. 6715).
[45] Asian
Terminals, Inc. v. National Labor Relations Commission, G.R. No.
158458, December 19, 2007, 541 SCRA 105, 115; Aurora Land Projects Corp. v. National Labor Relations Commission,
334 Phil. 44, 59 (1997).
[46] Asian Terminals, Inc. v.
National Labor Relations Commission, supra note 45, at 115; St. Michael's Institute v. Santos, 422 Phil.
723, 736 (2001).