SECOND
DIVISION
|
CALAMBA MEDICAL CENTER, INC., Petitioner, - versus - NATIONAL LABOR RELATIONS COMMISSION, RONALDO
LANZANAS AND MERCEDITHA* LANZANAS,
Respondents. |
G.R. No. 176484
Present: QUISUMBING, J., Chairperson, CARPIO MORALES, TINGA, VELASCO, JR., and BRION, JJ. Promulgated: |
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D E C I S I O N
CARPIO MORALES, J.:
The P4,800.00 each.[1] It appears that resident physicians were also given
a percentage share out of fees charged for out-patient treatments, operating
room assistance and discharge billings, in addition to their fixed monthly
retainer.[2]
The work schedules of the members of
the team of resident physicians were fixed by petitioner’s medical director Dr.
Raul Desipeda (Dr. Desipeda). And they were
issued identification cards[3] by
petitioner and were enrolled in the
Social Security System (SSS).[4] Income taxes were withheld from them.[5]
On
Dr. Desipeda whose attention was
called to the above-said telephone conversation issued to Dr. Lanzanas a Memorandum
of
As a Licensed Resident Physician employed in Calamba Medical Center since several years ago, the hospital management has committed upon you utmost confidence in the performance of duties pursuant thereto. This is the reason why you were awarded the privilege to practice in the hospital and were entrusted hospital functions to serve the interest of both the hospital and our patients using your capability for independent judgment.
Very recently though and unfortunately, you have committed acts inimical to the interest of the hospital, the details of which are contained in the hereto attached affidavit of witness.
You are therefore given 24 hours to
explain why no disciplinary action should be taken against you.
Pending investigation of your case, you are hereby placed under 30-days [sic] preventive suspension effective upon receipt hereof.[7] (Emphasis, italics and underscoring supplied)
Inexplicably, petitioner did not give
respondent Dr. Merceditha, who was not involved in the said incident, any work
schedule after sending her husband Dr. Lanzanas the memorandum,[8]
nor inform her the reason therefor, albeit she was later informed by the Human
Resource Department (HRD) officer that that was part of petitioner’s cost-cutting
measures.[9]
Responding to the memorandum, Dr.
Lanzanas, by letter of
On
On
In the meantime, then Sec. Cresenciano
Trajano of the Department of Labor and Employment (DOLE) certified the labor
dispute to the NLRC for compulsory arbitration and issued on April 21, 1998 return-to-work
Order to the striking union officers and employees of petitioner pending
resolution of the labor dispute.[15]
In a memorandum[16] of
Petitioner later sent Dr. Lanzanas a
notice of termination which he received on
On
You are likewise aware that you were observed (re: signatories [sic] to the Saligang Batas of BMCMC-UWP) to be unlawfully participating as member in the rank-and-file union’s concerted activities despite knowledge that your position in the hospital is managerial in nature (Nurses, Orderlies, and staff of the Emergency Room carry out your orders using your independent judgment) which participation is expressly prohibited by the New Labor Code and which prohibition was sustained by the Med-Arbiter’s ORDER dated February 24, 1998. (Emphasis and italics in the original; underscoring partly in the original and partly supplied)
For these reasons as grounds for
termination, you are hereby terminated for cause from employment effective
today,
Dr. Lanzanas thus amended his original
complaint to include illegal dismissal.[18] His and Dr. Merceditha’s complaints were
consolidated and docketed as NLRC CASE NO. RAB-IV-3-9879-98-L.
By Decision[19]
of
On appeal, the NLRC, by Decision[20]
of
WHEREFORE,
the assailed decision is set aside. The
respondents are ordered to pay the complainants their full backwages;
separation pay of one month salary for every year of service in lieu of
reinstatement; moral damages of P500,000.00 each; exemplary damages of P250,000.00
each plus ten percent (10%) of the total award as attorney’s fees.
SO ORDERED.[21]
Petitioner’s motion for
reconsideration having been denied, it brought the case to the Court of Appeals
on certiorari.
The appellate court, by P100,000.00 and
P50,000.00, respectively and omitted the award of attorney’s fees.
In finding the existence of
an employer-employee relationship between the parties, the appellate court held:
x x x. While it may be true that the respondents are given the discretion to decide on how to treat the petitioner’s patients, the petitioner has not denied nor explained why its Medical Director still has the direct supervision and control over the respondents. The fact is the petitioner’s Medical Director still has to approve the schedule of duties of the respondents. The respondents stressed that the petitioner’s Medical Director also issues instructions or orders to the respondents relating to the means and methods of performing their duties, i.e. admission of patients, manner of characterizing cases, treatment of cases, etc., and may even overrule, review or revise the decisions of the resident physicians. This was not controverted by the petitioner. The foregoing factors taken together are sufficient to constitute the fourth element, i.e. control test, hence, the existence of the employer-employee relationship. In denying that it had control over the respondents, the petitioner alleged that the respondents were free to put up their own clinics or to accept other retainership agreement with the other hospitals. But, the petitioner failed to substantiate the allegation with substantial evidence. (Emphasis and underscoring supplied)[24]
The appellate court thus declared
that respondents were illegally dismissed.
x x x. The petitioner’s ground for dismissing respondent Ronaldo Lanzanas was based on his alleged participation in union activities, specifically in joining the strike and failing to observe the return-to-work order issued by the Secretary of Labor. Yet, the petitioner did not adduce any piece of evidence to show that respondent Ronaldo indeed participated in the strike. x x x.
In
the case of respondent Merceditha Lanzanas, the petitioner’s explanation that
“her marriage to complainant Ronaldo has given rise to the presumption that her
sympat[hies] are likewise with her husband” as a ground for her dismissal is
unacceptable. Such is not one of the
grounds to justify the termination of her employment.[25] (Underscoring
supplied)
The fallo of the appellate court’s decision reads:
WHEREFORE,
the instant Motion for Reconsideration is
GRANTED, and the Court’s decision
dated
WHEREFORE,
the petition is DISMISSED. The assailed
decision dated P100,000.00
each and P50,000.00 each, respectively.
SO
ORDERED.[26] (Emphasis and italics in the original;
underscoring supplied)
Preliminarily, the present
petition calls for a determination of whether there exists an employer-employee
relationship[27]
between petitioner and the spouses-respondents.
Denying the existence of such
relationship, petitioner argues that the appellate court, as well as the NLRC,
overlooked its twice-a-week reporting arrangement with respondents who are free
to practice their profession elsewhere the rest of the week. And it invites attention to the uncontroverted
allegation that respondents, aside from their monthly retainers, were entitled
to one-half of all suturing, admitting, consultation, medico-legal and
operating room assistance fees.[28] These circumstances, it stresses, are clear
badges of the absence of any employment relationship between them.
This Court is
unimpressed.
Under the “control test,” an
employment relationship exists between a physician and a hospital if the hospital
controls both the means and the details of the process by which the physician is
to accomplish his task.[29]
Where a person who works for another
does so more or less at his own pleasure and is not subject to definite hours
or conditions of work, and is compensated according to the result of his
efforts and not the amount thereof, the element of control is absent.[30]
As priorly stated, private
respondents maintained specific work-schedules, as determined by petitioner
through its medical director, which consisted of 24-hour shifts totaling forty-eight hours each week and
which were strictly to be observed under pain of administrative sanctions.
That petitioner exercised control over
respondents gains light from the undisputed fact that in the emergency room,
the operating room, or any department or ward for that matter, respondents’
work is monitored through its nursing supervisors, charge nurses and orderlies. Without the approval or consent of petitioner
or its medical director, no operations can be undertaken in those areas. For control test to apply, it is not
essential for the employer to actually supervise the performance of duties of
the employee, it being enough that it has the right to wield the power.[31]
With respect to respondents’ sharing in
some hospital fees, this scheme does not sever the
employment tie between them and petitioner as this merely mirrors additional form
or another form of compensation or incentive similar to what commission-based
employees receive as contemplated in Article 97 (f) of the Labor Code, thus:
“Wage” paid to any employee shall mean the remuneration or earning, however designated, capable of being expressed in terms of money, whether fixed or ascertained on a time, task, piece, or commission basis, or other method of calculating the same, which is payable by an employer to an employee under a written or unwritten contract of employment for work done or to be done, or for services rendered or to be rendered and includes the fair and reasonable value, as determined by the Secretary of Labor, of board, lodging, or other facilities customarily furnished by the employer to the employee. x x x (Emphasis and underscoring supplied),
Respondents were in fact made subject
to petitioner-hospital’s Code of Ethics,[32]
the provisions of which cover administrative and disciplinary measures on negligence
of duties, personnel conduct and behavior, and offenses against persons,
property and the hospital’s interest.
More importantly, petitioner itself provided
incontrovertible proof of the employment status of respondents, namely, the
identification cards it issued them, the payslips[33]
and BIR W-2 (now 2316) Forms which reflect their status as employees, and the classification
as “salary” of their remuneration.
Moreover, it enrolled respondents in the SSS and Medicare (Philhealth)
program. It bears noting at this
juncture that mandatory coverage under the SSS Law[34]
is premised on the existence of an employer-employee relationship,[35]
except in cases of compulsory coverage of the self-employed. It would be preposterous for an employer to
report certain persons as employees and pay their SSS premiums as well as their
wages if they are not its employees.[36]
And if respondents were not petitioner’s
employees, how does it account for its issuance of the earlier-quoted
Finally, under Section 15, Rule X of
Book III of the Implementing Rules of the
Labor Code, an employer-employee relationship exists between the resident
physicians and the training hospitals, unless there is a training agreement
between them, and the training program is duly accredited or approved by the
appropriate government agency. In respondents’
case, they were not undergoing any specialization training. They were considered non-training general
practitioners,[37]
assigned at the emergency rooms and ward sections.
Turning now to the issue
of dismissal, the Court upholds the appellate court’s conclusion that private
respondents were illegally dismissed.
Dr. Lanzanas was neither a
managerial nor supervisory employee but part of the rank-and-file. This is the import of the Secretary of Labor’s
Resolution of
x x x x
In the motion to dismiss it filed before the Med-Arbiter, the employer (CMC) alleged that 24 members of petitioner are supervisors, namely x x x Rolando Lanzonas [sic] x x x.
A close scrutiny of the job descriptions of the alleged supervisors narrated by the employer only proves that except for the contention that these employees allegedly supervise, they do not however recommend any managerial action. At most, their job is merely routinary in nature and consequently, they cannot be considered supervisory employees.
They are not therefore barred from membership in the union of rank[-]and[-]file, which the petitioner [the union] is seeking to represent in the instant case.[38] (Emphasis and underscoring supplied)
x x x x
Admittedly, Dr. Lanzanas
was a union member in the hospital, which is considered indispensable to the
national interest. In labor disputes
adversely affecting the continued operation of a hospital, Article 263(g) of
the Labor Code provides:
ART. 263. STRIKES, PICKETING, AND LOCKOUTS.—
x x x x
(g) x x x x
x x x x. In labor disputes adversely affecting the continued operation of such hospitals, clinics or medical institutions, it shall be the duty of the striking union or locking-out employer to provide and maintain an effective skeletal workforce of medical and other health personnel, whose movement and services shall be unhampered and unrestricted, as are necessary to insure the proper and adequate protection of the life and health of its patients, most especially emergency cases, for the duration of the strike or lockout. In such cases, the Secretary of Labor and Employment is mandated to immediately assume, within twenty-four hours from knowledge of the occurrence of such strike or lockout, jurisdiction over the same or certify to the Commission for compulsory arbitration. For this purpose, the contending parties are strictly enjoined to comply with such orders, prohibitions and/or injunctions as are issued by the Secretary of Labor and Employment or the Commission, under pain of immediate disciplinary action, including dismissal or loss of employment status or payment by the locking-out employer of backwages, damages and other affirmative relief, even criminal prosecution against either or both of them.
x x x x (Emphasis and underscoring supplied)
An assumption or certification order
of the DOLE Secretary automatically
results in a return-to-work of all striking workers, whether a
corresponding return-to-work order had been issued.[39] The DOLE Secretary in fact issued a return-to-work
Order, failing to comply with which is punishable by dismissal or loss of
employment status.[40]
Participation in a strike and intransigence to a
return-to-work order must, however, be duly proved in order to justify immediate
dismissal in a “national interest” case.
As the appellate court as well as the NLRC observed, however, there is nothing
in the records that would bear out Dr. Lanzanas’ actual participation in the
strike. And the medical director’s Memorandum[41] of
Dr. Lanzanas’ claim that, after his 30-day
preventive suspension ended on or before
Petitioner thus failed to
observe the two requirements,before dismissal can be effected ─ notice
and hearing ─ which constitute essential elements of the statutory
process; the first to apprise the employee of the particular acts or omissions
for which his dismissal is sought, and the second to inform the employee of the
employer's decision to dismiss him.[43] Non-observance of these requirements runs
afoul of the procedural mandate.[44]
The termination notice sent to and received by
Dr. Lanzanas on
As for the case of Dr. Merceditha, her
dismissal was worse, it having been effected without any just or authorized cause
and without observance of due process. In
fact, petitioner never proferred any valid cause for her dismissal except its
view that “her marriage to [Dr. Lanzanas] has given rise to the presumption
that her sympath[y] [is] with her husband; [and that when [Dr. Lanzanas] declared
that he was going to boycott the scheduling of their workload by the medical
doctor, he was presumed to be speaking for himself [and] for his wife
Merceditha.”[46]
Petitioner’s contention that Dr.
Merceditha was a member of the union or was a participant in the strike
remained just that. Its termination of
her employment on the basis of her conjugal relationship is not analogous to
any of the causes enumerated in
Article 282[47] of the
Labor Code. Mere suspicion or belief,
no matter how strong, cannot substitute for factual findings carefully
established through orderly procedure.[48]
The Court even notes that after the
proceedings at the NLRC, petitioner never even mentioned Dr. Merceditha’s case. There is thus no gainsaying that her
dismissal was both substantively and procedurally infirm.
Adding insult to injury was the
circulation by petitioner of a “watchlist” or “watch out list”[49] including
therein the names of respondents.
Consider the following portions of Dr. Merceditha’s Memorandum of Appeal:
3. Moreover, to top it all, respondents have
circulated a so called “Watch List” to other hospitals, one of which [was]
procured from
4. Other co-professionals and brothers in the
profession are fully aware of these “watch out” lists and as such, her reputation
was not only besmirched, but was damaged, and she suffered social humiliation
as it is of public knowledge that she was dismissed from work. Complainant came from a reputable and
respected family, her
father being a retired full Colonel in the Army, Col. Romeo A. Vente, and her brothers and sisters are all professionals, her brothers, Arnold and Romeo Jr., being engineers. The Complainant has a family protection [sic] to protect. She likewise has a professional reputation to protect, being a licensed physician. Both her personal and professional reputation were damaged as a result of the unlawful acts of the respondents.[50]
While petitioner does not deny the
existence of such list, it pointed to the lack of any board action on its part
to initiate such listing and to circulate the same, viz:
20. x x x.
The alleged watchlist or “watch out list,” as termed by complainants,
were merely lists obtained by one Dr. Ernesto Naval of
The circulation of such list
containing names of alleged union members intended to prevent employment of
workers for union activities similarly constitutes unfair labor practice,
thereby giving a right of action for damages by the employees prejudiced.[52]
A word on the appellate court’s
deletion of the award of attorney’s fees.
There being no basis advanced in deleting it, as exemplary damages were correctly
awarded,[53] the
award of attorney’s fees should be reinstated.
WHEREFORE, the
Decision of the Court of Appeals in CA-G.R. SP No. 75871 is AFFIRMED with
MODIFICATION in that the award by
the National Labor Relations Commission of 10% of the total judgment award as
attorney’s fees is reinstated. In all other aspects, the decision of the
appellate court is affirmed.
SO ORDERED.
CONCHITA
CARPIO MORALES
Associate Justice
WE CONCUR:
LEONARDO A.
QUISUMBING
Associate
Justice
Chairperson
|
DANTE O. TINGA Associate Justice |
PRESBITERO J. VELASCO, JR. Associate Justice |
ARTURO D.
BRION
Associate
Justice
ATTESTATION
I attest
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.
LEONARDO
A. QUISUMBING
Associate
Justice
Chairperson
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
were reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
* Mercedita in some pleadings and annexed documents.
[1] Rollo, p. 10.
[2]
[3] NLRC records, pp. 79-80; Annexes “E” and “F” of Complainants’ (herein private respondents) Joint Reply and Rejoinder.
[4]
[5]
[6]
[7] NLRC records, p. 171.
[8] Rollo, p.12.
[9] NLRC records, p.16.
[10]
[11] The actual date of the union strike
as reflected in the order of the Secretary of Labor and Employment.
[12] Rollo, p. 11.
[13] NLRC records, p. 1.
[14]
[15] NLRC records, pp. 50-51.
[16] CA rollo, p. 198.
[17] NLRC
records, p. 175.
[18]
[19]
[20]
[21]
[22] Rollo, pp. 94-99. Penned by Justice Elvi John S. Asuncion with the concurrence of Justices Mariano C. Del Castillo and Hakim S. Abdulwahid.
[23]
[24]
[25]
[26]
[27] Applying the four-fold test which has the following elements: a) selection and engagement of the employee; b) payment of wages or salaries; c) exercise of the power of dismissal; and d) exercise of the power to control the employee’s conduct.
[28] Rollo, p. 26.
[29] Nogales v. Capitol Medical Center, G.R. No. 142625, December 19, 2006, 511 SCRA 204, 221 citing Diggs v. Novant Health, Inc., 628 S.E.2d 851 (2006).
[30] Encyclopedia
Britannica v. NLRC, G.R. No. 87098,
[31] Equitable
Banking Corp. v. NLRC, G.R. No. 102467,
[32] NLRC records, pp. 179-184; Annex “H.”
[33]
[34] Vide Section 9 of Republic Act No. 8282.
[35] Social Security System v. Court of Appeals, 401 Phil. 132, 141 (2000).
[36] Nagasura
v. NLRC, G.R. Nos. 117936-37, May 20, 1998, 290 SCRA 245, 251; Equitable Banking Corporation v. NLRC, supra note 31.
[37] Rollo, p. 58.
[38] NLRC records, pp. 90-93.
[39] Telefunken
Semiconductors Employees Union-FFW v.
Sec. of Labor and Employment, G.R. Nos. 122743
and 127215,
[40] Marcopper
Mining Corp. v. Brillantes, G.R. No. 119381,
[41] CA rollo at 198.
[42] Rollo, p. 79.
[43] PNB v. Cabansag, G.R. No. 157010, June
21, 2005, 460 SCRA 514, 530-531.
[44] Condo
Suite Club Travel v. NLRC, G.R. No. 125671,
[45] Supra note 10.
[46] NLRC records, p. 43; Respondent’s (Petitioner herein) Position Paper.
[47] Article 282 Temination by employer.—An employer may terminate an employee for any of the following causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and
(e) Other causes analogous to the foregoing.
[48]
[49] NLRC records, pp. 197-199.
[50]
[51]
[52] Article 28 of the Civil Code states “Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage.”
[53] Article 2208 of the Civil Code states “In the absence of stipulation, attorney’s fees and expenses of litigation, other than judicial costs, cannot be recovered, except:
(1) When exemplary damages are awarded;
(2) x x x;
x x x x”