G.R.
No. 179652 – People’s Broadcasting Service (Bombo Radyo Phils. Inc.), petitioner, v. The Secretary of Labor and Employment, The Regional Director, DOLE
Region III and Jandeleon Juezan, respondents.
Promulgated:
May 8, 2009
x ---------------------------------------------------------------------------------------- x
D I
S S E N T I N G O P I N I O N
BRION, J.
I dissent and vote for the dismissal of the petition.
This case originated from a Department of Labor and Employment (DOLE) inspection conducted pursuant to Article 128 of the Labor Code.[1] The DOLE Regional Director (Director), the DOLE Secretary (Secretary), and the Court of Appeals (CA) consistently ruled that an employer-employee relationship existed between petitioner Bombo Radyo and the respondent, and that the petitioner is liable for the payment of the respondent’s monetary claims. The ponencia, repetitively bending over backwards, reverses all these rulings and holds that the result should be otherwise.
I. Grounds for Dissent.
I vote to dismiss the petition for the following reasons:
1.
The petitioner chose the wrong recourse in
seeking the review by this Court of the CA’s decision on the petitioner’s Rule
65 petition for certiorari; the petitioner came to us via another petition for certiorari
under Rule 65 when the appropriate mode is a petition for review on certiorari
under Rule 45. The ponencia bends over
backwards to accommodate Bombo Radyo’s legally
erroneous petition to open the way for its review of the administrative
(DOLE) decisions and the support the CA gave these decisions.
2.
The Director originally ordered the payment of
the respondent’s monetary claim in his Order of
a. The petitioner was given all the opportunity to present evidence to oppose the Labor Inspector’s findings; hence, it cannot plead lack of due process for lack of opportunity to be heard.
b.
The Director duly considered the evidence on the
issue of employer-employee relationship in both his initial decision[2]
and in his resolution of
c.
The nature of the proceedings, level of
evidence required, and level of expertise between Labor Arbiters and the
Regional Director are not different and one tribunal holds no primacy over the
other in the determination of the employment relationship issue. The
terms and structure of Article 128(b), as amended by R.A. 7730, are clear and
need not give rise to the ponencia’s
fear of confusion in determining the employment relationship issue.
3. The Secretary has expanded visitorial and enforcement powers under Article 128 of the Labor Code, as amended by R.A. 7730;[6] he or his representative has full authority under the amended Article 128 to determine whether employer-employee relationship exists.
4. Article 128 of the Labor Code clearly provides that an appeal is perfected “only” by the posting of cash or surety bond; the Deed of Assignment the petitioner submitted to the DOLE is neither a cash nor a surety bond, and the Secretary correctly dismissed the petitioner’s appeal because it was not duly perfected. The ponencia bends over beyond the law’s breaking point to admit the petitioner’s appeal despite its infirmity under the clear terms and intent of the law.
a.
The Secretary fully explained the reasons for
the non-perfection of appeal in an original Order dated
b. Petitioners have only themselves to blame for their lost appeal to the Labor Secretary for their failure to post the required bond for the perfection of their appeal.
c. The Director’s Order lapsed to finality when the petitioner failed to perfect its appeal to the DOLE Secretary. The ponencia digs deep into this Court’s review power, effectively bending established rules and jurisprudence, to reach and nullify the effects of this first level decision.
5. The Court of Appeals correctly dismissed the petitioner’s petition for certiorari for lack of merit.
a. The CA cannot be wrong when it refused to recognize that no grave abuse of discretion attended the Secretary’s dismissal of an appeal that was never perfected based on the letter and intent of the law;
b. The CA cannot be wrong in its conclusion that no violation of due process attended the Director’s ruling, as stated above;
c. The CA could not have ruled on other issues after it recognized that no appeal was perfected and no abuse of discretion attended the assailed decisions; likewise, it could not have recognized any legal error on the part of the Secretary for not discussing other issues after recognizing that the petitioner did not perfect its appeal.
6. The petitioner’s evidence, at the most, established a doubt on the employer-employee relationship issue, which doubt should be resolved in favor of the respondent-worker.[7]
II.
Background
DOLE Regional Office No. VII conducted an inspection of the premises of the petitioner resulting in an inspection report/recommendation ordering Bombo Radyo to rectify/restitute, within five (5) days from notice, the violation discovered during the inspection. Radyo Bombo failed to undertake any rectification so that a summary investigation ensued where the parties were required to submit their respective position papers. Radyo Bombo reiterated its position, made during inspection, that the respondent was not an employee; he was a drama talent hired on a per drama “participation basis.” Both parties presented evidence in support of their respective positions.
DOLE Director Rodolfo M. Sabulao, in an order dated
A careful perusal of the records of this case showed that
complainant Jandeleon Juezan was hired by the respondent as a radio
talent/spinner and work six (6) days a week from
In doing so, the Director upheld the existence of employer-employee relationship between the broadcasting station and the respondent. Bombo Radyo moved for reconsideration, attaching additional evidence to his motion, but the Director denied the motion.
Bombo Radyo appealed to the DOLE Secretary, mainly contending
that the respondent was not its employee, pursuant to Rule X-A of the
Implementing Rules of the Labor Code[8]
in relation with the Rules on Disposition of Labor Standards Cases in the
Regional Office.[9] The appeal was dismissed in an order dated
The petitioner filed with the CA a petition for certiorari under Rule 65 of the Rules of Court alleging grave abuse of discretion. The petition cited the following grounds, which I quote for purposes of certainty –
1.
The public respondent committed
grave abuse of discretion amounting to lack or excess of jurisdiction when it
denied due course to the petition;
2.
The public respondent committed grave abuse of discretion amounting to
lack or excess of jurisdiction when it assumed jurisdiction over the claim of
the private respondent even as under R.A. 6715 jurisdiction lies with the NLRC,
hence, clearly, the Honorable Secretary of Labor and Employment, with due
respect, committed errors of law;
3.
The public respondent committed grave abuse of discretion amounting to
lack or excess of jurisdiction when it dismissed the appeal by the respondent
without delving on the issues raised by the petitioner;
4.
There is no appeal or any claim, speedy and adequate remedy in the
ordinary course of law available to the petitioner.
The CA duly considered the points raised, but ultimately dismissed the petition for lack of merit. Petitioner now comes to the Court, again under Rule 65 of the Rules of Court alleging the following grounds:
1.
The Honorable Court of
Appeals committed grave abuse of discretion amounting to lack or excess of
jurisdiction when it rules that the Secretary of Labor and Employment has
jurisdiction over the claim of the private respondent even as under R.A. 6715 jurisdiction
over it lies with the NLRC, hence, clearly, the Honorable Court Appeals
committed errors of law.
2.
The Honorable Court of Appeals committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it upheld the Order of the
Secretary of Labor and Employment despite the patent lack of due process.
3.
The Honorable Court of Appeals committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it dismissed the appeal
without delving on the issues raised by the petitioner. Its decision dated
4.
There is no appeal or any plain and adequate remedy in the ordinary
course of law available to the petition.
III.
Discussion
These discussions address the above grounds for dissent, not necessarily in the order posed above in light of the inter-relationships of these grounds with one another.
Propriety
of a Rule 65 Petition for Certiorari
The ponencia justifies the grant of extraordinary treatment to the petitioner’s Rule 65 petition for certiorari: (1) by general statements, supported by cited jurisprudence, on when a Rule 65 petition for certiorari may be admitted in lieu of the Rule 45 petition for review on certiorari that is the required mode of review from a ruling of the Court of Appeals; and (2) by urging a relaxation of the rules in view of the attendant legal and factual circumstances of the present case.[10] It thereafter urges the suspension of the applicable rule on mode of review, as follows:
The peculiar circumstances of this case warrant, as we
held in Republic v. Court of Appeals,
107 SCRA 504, 524, the exercise once more of our exclusive prerogative to
suspend our own rules or to exempt a particular case from its
operation as in x x x Republic of the
Philippines v. Court of Appeals, et. al., (83 SCRA 453, 478-480 [1978]),
thus: x x x the rules have been drafted
with the primary objective of enhancing fair trials and expediting
justice. As corollary, if their
application and operation tend to subvert and defeat instead of promote and
enhance it, their suspension is justified.
With these general statements, as premises, the ponencia generally adverts to the Regional Director’s alleged irregular handling of the case and misinterpretation of the respondent’s documents; the DOLE Secretary’s failure to discuss the merits of the case after she found the appeal to have failed for failure to post the required bond; and the alleged failure of the CA to examine the records and its focus on the discussion of due process and the jurisdiction of the Regional Director.
Under these terms, the ponencia hopes to open the door for the admission of the petition, thereby giving its imprimatur to the petitioner’s claim that it resorted to a Rule 65 petition because it had no appeal, or any plain and adequate remedy in the ordinary course of law.
I submit that the petitioner’s wrong mode of appeal in coming to this Court cannot be glossed over and simply hidden behind general statements made by this Court in the context of the unique and appropriate factual settings of the cited cases, generally applied to the ponencia’s distorted view of the circumstances of this case.
The CA decision under review simply and plainly holds that the Secretary committed no grave abuse of discretion when she dismissed an appeal that was supported by neither a cash nor a surety bond that the law requires, and that the DOLE Director did not violate the petitioner’s right to due after it was given full and ample hearing opportunities and its submitted evidence were considered and found wanting. In fact, on its face, the petition for certiorari before the CA does not deserve any merit as it simply hid behind the magic formula – grave abuse of discretion amounting to lack or excess of jurisdiction – to justify a review of a decision that has lapsed to finality for the petitioner’s failure to perfect its appeal. Fully examined, what the petition cites are really inconsequential grounds dismissible on their face or perceived errors of law (as in fact the petition so states in its cited 2nd ground).[11]
A comparison of the grounds cited in the present petition and the petition before the CA shows that in coming to this Court, the petitioner simply repeated the same issues it submitted to the Court of Appeals. The only difference is that it now cites the CA as the tribunal committing the grave abuse of discretion amounting to lack or excess of jurisdiction. In coming to this Court, on the same grounds cited before and ruled upon by the CA, the petitioner is merely asking this Court to review the CA ruling on the “grave abuse of discretion” issues the petitioner raised before the CA. Such a review is an appeal that, under our Rules, should fall under Rule 45 – a petition for review on certiorari. It is not accurate therefore for the petitioner to say that there is no remedy available to it in the ordinary course of law. Neither is it correct to characterize this situation as an extraordinary one that merits the suspension of the Rules. The appropriate remedy is a Rule 45 petition for review on certiorari which is envisioned to correct errors of law,[12] precisely the errors cited by the petitioner as having been committed by the CA.
Much harder to accept is the ponencia’s cavalier attitude towards the petitioner’s statement that there is no appeal, or any plain and adequate remedy in the ordinary course of law available to the petitioner, when a Rule 45 appeal is readily available to it and would have been the proper course since it cited errors of law against the CA. By accepting the present Rule 65 petition in place of a Rule 45 petition for review on certiorari without any sufficiently demonstrated meritorious ground for exceptional treatment, we are effectively negating our ruling in the recent Cecilia B. Estinozo v. Court of Appeals, et al.[13] that a petition for review on certiorari under Rule 45 and a petition for certiorari under Rule 65 are mutually exclusive.
The legal and factual circumstances the ponencia cites as justificatory reasons are in fact the issues discussed in this case; for this reason, there need not be discussed here for purposes of an orderly presentation, and will be fully discussed in their proper places below – suffice it to say for now that the proceedings below were conducted properly as the CA found. If there is anything extraordinary about this case at this point, it is the lengths the ponencia has gone to bend over backwards and justify the grant of the petition. It thus glosses over the wrong mode of appeal to this Court and the petitioner’s failure to perfect its appeal to the DOLE Secretary, and even minutely analyzes the facts before the Regional Director to show that the Regional Director’s ruling is legally incorrect. Finally, it grossly misinterprets Section 128(b) of the Labor Code, even citing an implementing rule that had been overtaken by the amendment of the cited section of the Code, and, for the purpose, even cited the common law.
I cite all these to stress that we should examine the ponencia carefully, particularly its justifications for the grant of extraordinary treatment to the petitioner, before joining the ponencia.
The Secretary’s Visitorial Powers
A major issue for the ponencia is the Director’s determination that employer-employee relationship existed between the petitioner and the respondent at the time of the inspection. Citing mainly Section 3, Rule 11 of the Rules on the Disposition of Labor Standards Cases,[14] the ponencia rationalizes:
The clause “in cases
where the relationship of employer-employee still exists” signifies that the
employer-employee relationship must have existed even before the emergence of
the controversy. Necessarily, the
DOLE’s power does not apply in two instances, namely: (a) where the
employer-employee relationship has ceased; and (b) where no such relationship
has ever existed.
The first situation is
categorically covered by Sec. 3, Rule 11 of the Rules on the Disposition of
Labor Standards Cases issued by the DOLE Secretary. It reads:
Sec. 3. Complaints
where no employer-employee relationship actually exists. Where employer-employee relationship no
longer exists by reason of the fact that it has already been severed, claims for
payment of monetary benefits fall within the exclusive and original
jurisdiction of the labor arbiters.
Accordingly, if on the face of the complaint, it can be ascertained that
employer-employee relationship no longer exists, the case, whether accompanied
by an allegation of illegal dismissal, shall immediately be endorsed by the Regional
Director to the appropriate branch of the National Labor Relations Commission
(NLRC).
xxx xxx xxx
In the first situation,
the claim has to be referred to the NLRC because it is the NLRC which has
jurisdiction in view of the termination of the employer-employee
relationship. The same procedure has to
be followed in the second situation since it is the NLRC that has jurisdiction
in view of the absence of employer-employee relationship between the
evidentiary parties from the start.
Clearly the law accords
a prerogative to the NLRC over the claim when the employer-employee
relationship has terminated or such relationship has not arisen at all. The reason is obvious. In the second situation especially, the
existence of an employer-employee relationship is a matter which is not easily
determinable from an ordinary inspection, necessarily so, because the elements
of such a relationship are not verifiable from a mere ocular examination. The intricacies and implications of an
employer-employee relationship demand that the level of scrutiny should be far
above the cursory and the mechanical. While
documents, particularly documents found in the employer’s office are the
primary source materials, what may prove decisive are factors related to the
history of the employer’s business operations, its current state as well as
accepted contemporary practices in the industry. More often than not, the question of
employer-employee relationship becomes a battle of evidence, the determination
of which should be comprehensive and intensive and therefore best left to the
specialized quasi-judicial body that is the NLRC.
It can be assumed
that the DOLE in the exercise of its visitorial and enforcement power somehow
has to make a determination of the existence of an employer-employee
relationship. Such prerogatival
determination, however, cannot be coextensive with the visitorial and
enforcement power itself. Indeed, such
determination of the existence of employer-employee relationship is still
primarily lodged with the NLRC. This is
the meaning of the clause “in cases where the relationship of employer-employee
still exists” in Art. 128 (b).
This approach is a legally incorrect due mainly to the ponencia’s lack of appreciation of the extent of the DOLE Secretary’s visitorial and enforcement powers under the Labor Code, as amended, and a mis-reading of the current law and the applicable implementing rules. The present law gives the Secretary or his representative the authority to fully determine whether employer-employee relationship exists; only upon a showing that it does not, is the DOLE divested of jurisdiction over the case.
In the first place, the ponencia is fixated on the application of the Rules on the Disposition of Labor Standards Cases in the Regional Offices which cannot now be cited and used in their totality in light of the amendment of the Article 128(b) by Republic Act No. 7730.[15] Prior to the amendment, Section 128(b) stated that –
Art. 128(b). The provisions of Article 217 of this Code to
the contrary notwithstanding and in cases where the relationship of
employer-employee still exist, the Minister of Labor and Employment or his duly
authorized representatives shall have the power to order and administer, after
due notice and hearing, compliance with the labor standards provisions of this
Code and other labor legislation based on the findings of labor relation
officers or industrial safety engineers made in the course of inspection, and
to issue writs of execution to the appropriate authority for the enforcement of
their orders, except in cases where the employer contests the findings of
the labor regulation officer and raises issues which cannot be resolved without
considering evidentiary matters that are not verifiable in the normal course of
inspection.
As amended,
Section 128(b) now states:
Art. 128. Visitorial and
Enforcement Power. —
(b) Notwithstanding the
provisions of Articles 129 and 217 of this Code to the contrary, and in cases
where the relationship of employer-employee still exists, the Secretary of
Labor and Employment or his duly authorized representatives shall have the
power to issue compliance orders to give effect to the labor standards provisions
of this Code and other labor legislation based on the findings of labor
employment and enforcement officers or industrial safety engineers made in the
course of inspection. The Secretary
or his duly authorized representatives shall issue writs of execution to the
appropriate authority for the enforcement of their orders, except in
cases where the employer contests the findings of the labor employment and
enforcement officer and raises issues supported by documentary proofs which
were not considered in the course of inspection.
An order issued by the
duly authorized representative of the Secretary of Labor and Employment under
this article may be appealed to the latter. In case said order involves a
monetary award, an appeal by the employer may be perfected only upon the
posting of a cash or surety bond issued by a reputable bonding company duly
accredited by the Secretary of Labor and Employment in the amount equivalent to
the monetary award in the order appealed from.
This amendment is critical in viewing the Secretary’s visitorial and enforcement powers as they introduced new features that expanded these powers, thereby affecting the cited Rules as well as the process of referring an inspection case to the NLRC.
A first distinction between the original
and the amended Article 128(b) is the reference to Article 217 of the Labor
Code in the “notwithstanding” clause. As
amended, Article 129 is also referred to.
Read in relation with Article 217, the effect is the removal of the P5,000.00 ceiling in the Secretary’s
visitorial powers – a conclusion that the ponencia
fully supports.
Another distinction relates to the present clause “except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection” (the “excepting clause”). In the original version of Article 128(b), this clause states – “except in cases where the employer contests the findings of the labor regulation officer and raises issues which cannot be resolved without considering evidentiary matters that are not verifiable in the normal course of inspection.” Thus, previously, the law referred to matters that the labor regulation officer could not have ruled upon because they are not verifiable in the normal course of inspection. Under the present formulation, reference is only to “documentary proofs which were not considered in the course of inspection” used in a different context explained below. Textually, the present formulation refers only to documentary evidence that might or might not have been available during inspection but were not considered.
The difference can be explained by the new and unique formulation of the whole Article 128(b). In the original provision, the visitorial and enforcement power of the Minister of Labor and Employment generally prevailed over the jurisdiction over arbitration cases granted to Labor Arbiters and the Commission under Article 217. Excepted from this rule is what the original and unamended excepting clause, quoted above, provides – i.e., when inspection would not suffice because of evidentiary matters that have to be threshed out at an arbitration hearing.
The new and amended Article 128(b) did not retain the formulation of the original as it broke up the original version into two sentences. In the first sentence, it recognized the primacy of the visitorial and enforcement powers of the Secretary of Labor over the terms of Articles 129 and 217. In other words, the Secretary or his delegate can inspect without being fettered by the limitations under these provisions. The second sentence is devoted wholly to the issuance of writs of execution to enforce the issued orders. It exists as an independent statement from what the first sentence states and is limited only by the exception – when the employer cites a documentary proof that was not considered during the inspection.
Thus, under the amended Article 128(b), as written, the power of the Secretary of Labor or his representative to enforce the labor standards provisions of the Labor Code and other labor legislations has been vastly expanded, being unlimited by Articles 129 and 217 of the Labor Code, provided only that employer-employee relationship still exists. The existence of the relationship, however, is still a matter for the Secretary or the appropriate regional office to determine, unfettered by Articles 129 and 217 of the Labor Code. The mere allegation – whether prima facie or not – that employer-employee relationship exists, does not, by itself, divests the Regional Director of jurisdiction to rule on the case;[16] the Director can at least fully determine whether or not employer-employee relationship exists.
The present “excepting clause” (which refers only to the issuance of a writ of execution) suggests that after the labor employment officer has issued its inspection ruling, the Secretary may issue a writ to execute the ruling, unless the employer “contests the findings of the labor employment officer and raises issues supported by documentary evidence which were not considered in the course of inspection.” Stated otherwise, there is now a window in the law for immediate execution pending appeal when the employer’s objection does not relate to documentary evidence that has not been raised in the course of inspection.
What happens to the inspection ruling itself is governed by the next paragraph of Article 128(b) which expressly provides for an appeal to the Secretary of Labor, with the requirement for the filing of a cash or surety bond to perfect the appeal. This requirement, stated without distinctions or qualifications, should apply to all issues, whether on the employer-employee issue or on the inspection findings.
A necessary question that arises is the status of the current rule implementing Article 128(b) as amended, which is an exact copy of the law except for the addition of a new sentence - “. . In such cases the Regional Director shall endorse the dispute to the appropriate regional branch of the National Labor Relations Commission for proper action.” This rule antedates the R.A. 7730 amendment but is not necessarily negated by the Secretary’s expanded powers because of the limitation that the Secretary or his representation has jurisdiction only where an employment relationship exists. Properly understood, it should now be read as a confirmation of the Secretary’s expanded power that includes the full authority to rule on whether employer-employee relationship exists. It is only upon a ruling that no such relationship exists that the Secretary and the Director are divested of jurisdiction to rule on the monetary claim. The Secretary or the Director must then endorse the monetary claim to the NLRC instead of dismissing it for lack of jurisdiction. However, whatever action the Director takes is a matter that can be appealed to the Secretary of Labor pursuant to the second paragraph of Article 128(b). In the present case, the petitioner did appeal as allowed by Article 128(b), but unfortunately blew its chance to secure a review on appeal before the Secretary of Labor as it failed to post the cash or surety bond that the present law expressly requires.
This reading of the law totally invalidates the ponencia’s position in the present case that the Regional Director and the Secretary of Labor have no jurisdiction to issue an enforcement order and the case should have been turned over to the NLRC for compulsory arbitration after the petitioner claimed or has shown prima facie that no employer-employee relationship existed.
The ponencia makes
a final desperate effort to circumvent the plain import of Section 128(b) and
its history by appealing to and urging the use of the common law in reading
the DOLE Secretary’s visitorial and enforcement powers under the cited Section. The ponencia
suggests a “functional or pragmatic analysis” to ascertain the
jurisdictional boundaries of administrative agencies. Why the common law approach is to be used in
the
Petitioner Failed to Validly
Appeal to the Secretary
The parties do not dispute that the remedy from the Regional Director’s ruling is an appeal to the Secretary, as the petitioner did indeed appeal to the Office of the Secretary of Labor. The ponencia, however, rules that the DOLE erred in declaring that the appeal was not perfected; the ponencia holds that the Deed of Assignment of Bank Deposits that the petitioner submitted in lieu of a cash or surety bond substantially satisfied the requirements of Section 128 (b) of the Labor Code. This provision states:
x x x
An
order issued by the duly authorized representative of the Secretary of Labor
and Employment under this article may be appealed to the latter. In case said order involves a monetary award,
an appeal by the employer may be perfected only upon the posting of a cash or
surety bond issued by a reputable bonding company duly accredited by the
Secretary of Labor and Employment in the amount equivalent to the monetary
award in the order appealed from.
The Deed of Assignment[17] was accompanied by a Letter Agreement between Queen City Development Bank and the petitioner covering Platinum Savings Deposit (PSD) No. 010-8-00038-4,[18] and a Cash Voucher[19] issued by the petitioner indicating the amount of P203,726.30 deposited at the bank. The Deed of Assignment reads:
DEED OF ASSIGNMENT OF BANK
DEPOSIT
WITH SPECIAL POWER OF
ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
That,
I, GREMAN B. SOLANTE in my capacity
as Station Manager of DYMF Cebu City, PEOPLE’S
BROADCASTING SERVICES, INC., a corporation duly authorized and existing
under and by virtue of the laws of the Philippines, for and in consideration of
the sum of PESOS: TWO HUNDRED THREE
THOUSAND SEVEN HUNDRED TWENTY SIX PESOS & 30/100 (Php203,726.30), Phil.
Currency, CASH BOND GUARANTEE for
the monetary award in favor to the Plaintiff in the Labor Case docketed as LSED Case No. RO700-2003-09-CI-091, now
pending appeal.
That
Respondent-Appellant do hereby undertake to guarantee available and sufficient
funds covered by Platinum Savings
Deposit (PSD) No. 010-8-00038-4 of PEOPLE’S
BROADCASTING SERVICES, INC., in the amount of PESOS: TWO HUNDRED THREE THOUSAND SEVEN HUNDRED TWENTY PESOS &
30/100 ONLY (Php203,726.30) payable to Plaintiff-Appellee/Department
of Labor and Employment Regional Office VII at Queen City Development Bank, Cebu Branch, Sanciangko St., Cebu
City.
It
is understood that the bank has the full control of Platinum Savings Deposit (PSD) No. 010-8-00038-4 from and after
this date and that said sum cannot be withdrawn by the Plaintiff-Appellee/Department of Labor and Employment Regional Office
VII until such time that a Writ of
Execution shall be ordered by the Appellate Office.
FURTHER, this Deed of Assignment is limited to the principal amount of PESOS:
TWO HUNDRED THREE THOUSAND SEVEN HUNDRED TWENTY SIX PESOS & 30/100
from the said Deposit will be for the account holder.
IN WITNESS WHEREOF, I have hereto affixed my
signature this 18th day of June, 2004, in the City of Cebu,
Philippines.
PEOPLE’S
BROADCASTING SERVICES, INC.
By:
(Sgd.)
GREMAN B. SOLANTE
Station Manager
The
ponencia’s position is legally
incorrect as it conveniently fails to consider both the wording of the law and
the spirit that led to this wording. The
law expressly states that an appeal is perfected “only” upon the posting
of a cash or surety bond;[20]
no other document or instrument is allowed.
What aggravates the ponencia’s
disregard of the express wording of the law is the petitioner’s knowledge, on
record, that a cash or surety bond is required.
This knowledge is clearly demonstrated by the petitioner’s motion for
extension of time to file appeal, filed on
Accompanying this APPEAL are –
1.
APPEAL MEMORANDUM;
2.
Cash bond pursuant to the specifications in RESOLUTION;
3.
Proof of payment of required filing fee.
No cash bond was however submitted, showing that the petitioner was less than candid when it made its claim. It was under these circumstances – i.e., the petitioner’s knowledge that a cash or surety bond is required; the absence of a cash bond; and misrepresentation that a cash bond was attached when there was none – that the DOLE Secretary dismissed the appeal. The CA correctly supported the Secretary’s action and ruled that the Secretary did not act with grave abuse of discretion in dismissing the appeal.
Separately from these factual incidents are reasons proceeding from established jurisprudence as the indispensability of a bond to perfect an appeal is not a new issue for the Court. In Borja Estate, et al. v. Spouses R. Ballad and R. Ballad,[22] we ruled that –
The intention of the
lawmakers to make the bond an indispensable requisite for the perfection of an
appeal by the employer is underscored by the provision that an appeal may be
perfected “only upon the posting of a cash bond”. The word “only” makes it perfectly clear that
the LAWMAKERS intended the posting of a cash or surety bond by the employer to
be the exclusive means by which an employer’s appeal may be considered
complete.
x x x
Evidently, the posting of a
cash or surety bond is mandatory. And
the perfection of an appeal in the manner
and within the period prescribed by law is not only mandatory but
jurisdictional. [emphasis supplied].
Interestingly, the same adverb – “only” – that this Court construed in Borja, is the very same adverb that Article 128(b) of the Labor Code contains. Thus, this Article states in part – an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Secretary of Labor and Employment. All these safeguards would be for naught if the ponencia’s understanding of the requirements for the perfection of an appeal will prevail. To reiterate, the bond must be in cash or a surety issued by a reputable bonding company, not by any bonding company. The reputation alone of the bonding company will not suffice to satisfy the law; the bonding company must be accredited by the Secretary. “Cash,” on the other hand, whether in lay or its legal signification, means a sum of money; cash bail (the sense in which a cash bond is used) is a sum of money posted by a criminal defendant to ensure his presence in court, used in place of a surety bond and real estate.[23]
How
the aforequoted Deed of Assignment can satisfy the above legal requirements requires
an act of bending that goes beyond the intent of the law. What the Deed extends is a guarantee using a sum of money placed
with a bank, not with the DOLE. The
guarantee is made by a certain Greman B. Solante, described in the Deed as Station
Manager signing for and in behalf of the petitioner, a corporation. There
is no indication anywhere, however, that Mr. Solante was authorized by the
Board of the corporation to commit the corporate funds as a guarantee.[24] This lack of clear authority is replete with
legal implications that render the Deed of Assignment less than the cash bond
that it purports to be; among others, these implications impose on the DOLE
added burdens that a cash bond is designed to avoid. Under Article 1878 of the Civil Code, a
special power of attorney is required to bind a principal as guarantor or
surety. Under Section 23 and 35 of the Corporation Code of the
It is noteworthy, too, that the guarantee is under the condition that “said sum cannot be withdrawn by the Plaintiff-Appellee/Department of Labor and Employment Regional Office VII until such time that a Writ of Execution shall be ordered by the Appellate Office.” What this limitation means is not at all certain. But on its face, it means that the bond is in favor of the DOLE Regional Office, not to the Office to the DOLE Secretary where the appeal has been filed. Thus, the DOLE Secretary herself has no authority to call on the guarantee. Even Regional Office VII cannot, until a writ of execution is ordered by the Appellate Office. What this Appellate Office is, is again not certain and can mean the highest appellate levels all the way up to this Court. Another uncertainty is the bank’s commitment to the guarantee as the Deed only contains a “CONFORME” signed by the Officer-in-Charge of the Queen City Development Bank, not the exact terms of the bank’s own commitment to the DOLE in whose favor any bond should be made. What is certain about the Deed is provided in its penultimate paragraph” “any interest to be earned from said Deposit will be for the account holder.”
The Platinum Savings Deposit
mentioned in the Deed is itself very interesting as it carries the heading
“Deposit Insured by PDIC Maximum Amount of Php 100,000.00. Yet, the amount of deposit is stated to be
Php 203,726.30, with interest rate of 4.25%, and maturity date of
To be sure, these are not the terms the framers of the law intended when they required that perfection of appeal requires the filing “only” of a cash or surety bond. Effectively, what the Deed of Assignment and its allied documents have committed to support the perfection of the petitioner’s appeal, with the intent to pass it off as a cash bond, is an amount whose control is not clearly with the DOLE and which may require a lot of clarifications and prior actions before it can be used to pay the monetary claim secured by the bond. This is what the ponencia wishes to recognize as a substitute for the cash bond requirement of the law. To say the least, a ruling from this Court of this tenor would severely and adversely affect the effectiveness and efficiency of the DOLE’s handling of appeals before it; it would be a precedent that effectively negates the certainties the law wishes to foster, and would be a welcome development to those who would wish to submit guarantees other than the cash or surety bonds the law demands.
I submit that the determination of what satisfies the bonding requirement in labor appeals is a matter for the Secretary of Labor and Employment to determine in the first instance, and should be free from judicial interference, provided that the Secretary does not substantially depart from the letter and intent of the law. Once the Secretary – the entity with primary jurisdiction over labor appeals – has ruled that a guarantee other than the strict cash and surety bonds that the law requires is not sufficient, then this Court should be bound by the determination in the absence of any attendant grave abuse of discretion on the part of the Secretary. Otherwise stated, this Court cannot and should not second guess or in hindsight control an administrative tribunal in the exercise of its powers, even “in the interest of justice,” where there is no attendant grave abuse of discretion amounting to lack or excess of jurisdiction. Only in this manner can this Court accord due respect to the constitutional separation of powers that it is duty-bound to enforce.
Failure of the CA to review the evidence
In light of the above discussions, the CA could not have been wrong in concluding that no grave abuse of discretion attended the CA’s conclusion that the petitioner indeed failed to perfect its appeal before the Secretary. Over and above this objection, however, the ponencia, faults the CA for not examining the evidence to determine whether the conclusions of the DOLE in the assailed orders were supported by the evidence presented. It finds that the CA focused instead on a general discussion of due process and the jurisdiction of the Regional Director.
Let it be clarified that the Secretary did not need to go into a full discussion of the merits of the appeal because no appeal was ever perfected. The CA understandably focused on this aspect of the case as it renders moot all other issues. To the CA’s credit it made sure that there was no denial of due process that tainted the DOLE decisions and it found that there was none. In this light, the CA complied with what the Constitution requires as a decision maker is only duty-bound to state the facts and the law on which its decision is based.[25]
In this respect, it should be
considered that the petitioner was given every opportunity to be heard at the
DOLE Regional Office. The plant inspection
was conducted at the petitioner’s own establishment where its officials were
present. No complaint exists regarding
this aspect of the case. A notice of
inspection results was duly sent to the petitioner, which it contested. Thus, the Regional Director directed the
parties to file their position papers on the inspection results. The parties duly complied, with parties both
focusing on the employer-employee relationship issue. In the Order dated
Unfortunately, the petitioner equated the Regional Director’s failure to rule in its favor to be denial of due process for the alleged failure to consider the evidence it submitted. The CA, of course, noting the above-described developments in the case saw the fallacy of the petitioner’s submission and dismissed the petition, thus affirming the DOLE level decisions.
The Director’s ruling that the ponencia now sees as objectionable states in its material portion:
Under the said Policy
Instructions, there are two (2) types of employees in the broadcast industry,
namely: 1) “Station employees – are those whose services are engaged to
discharge functions which are usually necessary and desirable to the operation
of the station and whose usefulness is not affected by changes of programs,
ratings or formats and who observe normal working hours. These shall include
employees whose talents, skills or services are engaged as such by the station
without particular reference to any specific program or undertaking, and are
not allowed by the station to be engaged or hired by other stations or persons
even if such employees do not observe normal working hours. 2) 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 the 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 agencies or sponsoring companies, shall be under a written contract
specifying, among other things, the nature of the work to be performed, rates
to 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 (3)
days from its consummation.”
A careful perusal of the records of this case showed that
complainant Jandeleon Juezan was hired by the respondent as a radio
talent/spinner and work six (6) days a week from
In the motion for reconsideration that followed, the Director ruled as follows:
For resolution is the Motion for Reconsideration filed by
the respondent on March 15, 2004 to the Order of this Office dated February 27,
2004 on the ground that due process is not observed.
The motion was set for clarificatory hearing on
Respondent in its Motion for Reconsideration alleged to
have been denied due process because it was not given the opportunity to
examine the identification card which was not presented for scrutiny and
verification.
The contention sought by the respondent is without merit.
The identification card presented by complainant that he
was an authorized Media Representative is not material to this case nor fatal
to respondent’s case. Presentation of employment records is the burden of
employer and not of complaint worker.
Respondent’s passing the buck of employer-employee relationship to its drama Directors and Producers is of no moment. Granting without admitting that herein complainant is indeed under the employ of respondents’ drama directors. Such partakes of a sub-contracting relationship which will not absolve herein respondent from its solidary liability to complainant’s claims pursuant to Art. 106 to Art. 109 of the Labor Code.
Correctly understood, these rulings do not indicate in any way that the petitioner’s evidence were not considered. To be sure, the parties’ various pieces of evidence the parties submitted were not all mentioned in these rulings. What it does mention are its findings from the parties’ conflicting factual assertions. Interestingly, it implies that, at least nominally, the respondent was a program employee. This is the ruling’s concession to the petitioner’s evidence. However, it also asserts that despite this seeming status, the respondent was in fact a station employee for the reasons the ruling outlined, namely: (1) the respondent initially hired the respondent as a radio talent/spinner; (2) his work was six [6] days a week from 8:00 A.M. to 5:00 P.M., Monday thru Saturday; (3) he is required to observe normal working hours and deductions are made for tardiness; (4) the respondent paid the complainant’s salary every quincena; (5) the petitioner required the respondent to sign payrolls; (6) notwithstanding the employment contract stipulating herein complainant as a program employee, his actual duty pertains to that of a station employee; and (7) the petitioner failed to register the respondent’s employment contract with the Broadcast Media Counsel as required.
Thus viewed, the ponencia’s conclusion that the Director did not consider the petitioner’s evidence is misplaced. In fact, the factors the Director pointed out decisively show that an employer-employee relationship existed between the petitioner and the respondent.
Confusion
between the DOLE and
the NLRC
in resolving employment
relationship
issues.
As last point that is hard to leave alone is the ponencia’s interpretation that the standard laid down in the last sentence of Article 128 (b) of the Labor Code that the documentary proofs be “considered in the course of inspection” applies only to issues other than the fundamental issue of the existence of employer-employee relationship. A contrary rule according to the ponencia would lead to controversies on the part of labor officials in resolving the issue of employer-employee relationship.
What the ponencia apparently refers to is that portion of Article 128(b) that was amended by R.A. 7730, heretofore discussed. To reiterate what has been stated above, the “documentary proofs which were not considered in the course of inspection” refers to the objection that a party may raise in relation with the issuance of a writ of execution, and does not relate to the extent of the visitorial and enforcement power of the Secretary defined in the first sentence of the Article. Thus, no writ may immediately issue if such objection exists. Rather, a full hearing shall ensue as in this case where the Director allowed the petitioner to submit evidence as late as the motion for reconsideration stage. After the Director shall have ruled on all the submitted issues, then a writ of execution shall issue if no appeal is taken; otherwise, an appeal may be taken to the Secretary. Under the Rules, the perfection of an appeal holds in abeyance the issuance of a writ of execution or suspends one already issued.[26] R.A. 7730 effectively changes this rule by giving the authority to issue a writ of execution unless the “excepting clause” mentioned above applies.
That the employment relationship issue is for the Secretary or his representative to rule upon is clear from the wording of the 1st paragraph of Article 128(b) when it defines the extent of the Secretary’s power. In this definition of authority, the issue cannot be anywhere else but with the Secretary who has been granted visitorial and enforcement power when an employment relationship exists. This grant must be read with the 2nd paragraph of the same Article that identifies an appeal as the remedy to take from an inspection decision made under the 1st paragraph.
For the ponencia to imply that the NLRC is more fitted to rule on the employment relationship issue misunderstands the power that Article 128 grants the Secretary. It is a full fact-finding power that includes whatever is necessary for the enforcement of the grant, including the authority to determine when the limits of the power apply and to call the parties and hear and decide their submissions. For this reason, Sections 5(a) and 6 of Department Order No. 7-A, Series of 1995 states:
Sec 5. Field investigation and hearing. – (a) In case of complaint inspection where no proof of compliance is submitted by the employer after seven (7) calendar days from receipt of the inspection results, the Regional Director shall summon the employer and the employees/complainants to a summary hearing at the regional office.
x x x
Sec. 6. Nature of
Proceedings. The proceedings shall be summary and non-litigious in
character. Subject to the requirements
of due process, the technicalities of law and procedure and the rules governing
admissibility and sufficiency of evidence obtaining in the courts of law shall
not strictly apply. The regional
director or his designated representative may, however, avail of all reasonable
means to ascertain the facts of the controversy speedily and objectively,
including the conduct of ocular inspection and examination of well-informed
persons. Substantial evidence shall be
sufficient to support a decision.
Significantly, the nature of the proceedings before the Regional Director is not different from the proceedings before the Labor Arbiter. Section 2, Rule V of the Revised Rules of Procedure of the National Labor Relations Commission (2005) provides that:
Section 2. Nature of Proceedings. The proceedings before the Labor Arbiter
shall be non-litigious in nature.
Subject to the requirements of due process, the technicalities of law
and procedure and the rules obtaining in courts of law shall not strictly apply
thereto. The Labor Arbiter may avail
himself of all reasonable means to ascertain the facts of the controversy
speedily, including the ocular inspection and examination of well-informed
persons.
Thus, the view that one tribunal has primacy over another because of the nature of their proceedings, the quantum of evidence required, or their level of expertise, is misplaced. Properly understood, the structure that Article 128(b) provides in relation with monetary claims within and employment relationship, as well as the delineation of powers between the Secretary of Labor and Employment and the NLRC are not at all complicated nor confusing, and need not lead to controversies on the part of labor officials in resolving the issue of employer-employee relationship, as the ponencia fears.
ARTURO D. BRION
Associate Justice
[1] The Visitorial and Enforcement Powers of the DOLE Secretary.
[2] Order dated
[3] DOLE records, p. 152.
[4] Chan v. Court of Appeals, G.R. No.
159922,
[5] People v. Maguikay, G.R. Nos. 103226-28,
[6] Approved on
[7] Prangan v. NLRC, G.R. No. 126529,
[8] Incorporated in the Implementing Rules under Department Order No. 7-A, Series of 1995.
[9] Rule 3, Section 1 (a) and (b).
[10] See: ponencia, pp. 6-7.
[11] Its 1st ground is a
generic allegation of grave abuse of discretion for denial of due course to the
petition; the 2nd ground, using the “grave abuse” magic formula, at
the same time states that the Secretary committed an error of law; the 3rd
ground alleges grave abuse for not “delving on the issues raised by the
petitioner;” the 4th in the list is not a cited ground at all but a
statement that there is no adequate remedy in the course of law other than a
petition for certiorari.
[12] RULES OF COURT, Section 1, Rule 45.
[13] Estino v. CA, G.R. No. 150276,
[14]
Dated
[15] Approved on
[16] Bay Haven, Inc., et al. v.
Abuan, et al., G.R. No. 160859,
[17] DOLE Records, p. 207.
[18]
[19]
[20] Art. 128 (b), last par., Labor Code.
[21] DOLE Records, pp. 153 and 154.
[22] G.R. No. 152550,
[23] Black’s Law Dictionary, 6th Ed. P. 216.
[24] Under Article 1878 of the Civil
Code, a special power of attorney is necessary to bind the principal as a
guarantor or surety.
[25] Section 14, Article VIII, Constitution.
[26]
Section 10, Department Order
No. 7-A, Series of 1995.