Republic
of the
Supreme
Court
SECOND DIVISION
|
D.M. CONSUNJI, INC. and/or
DAVID M. CONSUNJI, Petitioners, - versus - ESTELITO L. JAMIN, Respondent. |
G.R.
No. 192514
Present: CARPIO, J.,
Chairperson, BRION, PERALTA,* PEREZ, and SERENO, JJ. Promulgated: April 18,
2012 |
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D
E C I S I O N
BRION, J.:
We resolve the
present appeal[1] from the
decision[2]
dated
The Antecedents
On
On
DMCI denied liability. It argued that
it hired Jamin on a project-to-project basis, from the start of his engagement
in 1968 until the completion of its SM Manila project on
The Compulsory Arbitration
Rulings
In a decision dated
On appeal by Jamin, the National Labor
Relations Commission (NLRC), in its
decision of April 18, 2007,[8]
dismissed the appeal and affirmed the labor arbiters finding that Jamin was a
project employee. Jamin moved for reconsideration, but the NLRC denied the
motion in a resolution dated
The CA Decision
On
The CA considered the project
employment contracts Jamin entered into with DMCI for almost 31 years not definitive
of his actual status in the company. It
stressed that the existence of such contracts is not always conclusive of a
workers employment status as this Court explained in Liganza v. RBL Shipyard Corporation, et al.[12] It
found added support from Integrated
Contractor and Plumbing Works, Inc. v. NLRC,[13]
where the Court said that while there were several employment contracts between
the worker and the employer, in all of them, the worker performed tasks which
were usually necessary or desirable in
the usual business or trade of the employer and, a review of the workers
assignments showed that he belonged to a work pool, making his employment
regular.
Contrary to DMCIs submission and the
labor arbiters findings, the CA noted that DMCI failed to submit a report to
the DOLE Regional Office everytime Jamins employment was terminated, as
required by DOLE Policy Instructions No. 20. The CA opined that DMCIs failure
to submit the reports to the DOLE is an indication that Jamin was not a project
employee. It further noted that DOLE Department Order No. 19, Series of 1993,
which superseded DOLE Policy Instructions No. 20, provides that the termination
report is one of the indicators of project employment.[14]
Having found Jamin to be a regular
employee, the CA declared his dismissal illegal as it was without a valid cause
and without due process. It found that
DMCI failed to provide Jamin the required notice before he was dismissed.
Accordingly, the CA ordered Jamins immediate reinstatement with backwages, and
without loss of seniority rights and other benefits.
DMCI moved for reconsideration, but
the CA denied the motion in its resolution of
The Petition
DMCI seeks a reversal of the CA
rulings on the ground that the appellate court committed a grave error in
annulling the decisions of the labor arbiter and the NLRC. It presents the
following arguments:
1. The CA misapplied the phrase
usually necessary or desirable in the usual business or trade of the employer
when it considered Jamin a regular employee. The definition of a regular
employee under Article 280 of the Labor Code does not apply to project
employment or employment which has been fixed for a specific project, as
interpreted by the Supreme Court in Fernandez
v. National Labor Relations Commission[17]
and D.M. Consunji, Inc. v. NLRC.[18] It maintains the same project
employment methodology in its business operations and it cannot understand why
a different ruling or treatment would be handed down in the present case.
2. There is no work pool in DMCIs
roster of project employees. The CA erred in insinuating that Jamin belonged to
a work pool when it cited Integrated
Contractor and Plumbing Works, Inc. ruling.[19]
At any rate, Jamin presented no evidence to prove his membership in any work
pool at DMCI.
3. The CA misinterpreted the rules
requiring the submission of termination of employment reports to the DOLE.
While the report is an indicator of project employment, as noted by the CA, it
is only one of several indicators under the rules.[20]
In any event, the CA penalized DMCI for a few lapses in its submission of
reports to the DOLE with a very rigid application of the rule despite the
almost unanimous proofs surrounding the circumstances of private respondent
being a project employee as shown by petitioners documentary evidence.[21]
4. The CA erred in holding that Jamin
was dismissed without due process for its failure to serve him notice prior to
the termination of his employment. As
Jamin was not dismissed for cause, there was no need to furnish him a written
notice of the grounds for the dismissal and neither is there a need for a
hearing. When there is no more job for Jamin because of the completion of the
project, DMCI, under the law, has the right to terminate his employment without
incurring any liability. Pursuant to the rules implementing the Labor Code,[22]
if the termination is brought about by the completion of the contract or phase
thereof, no prior notice is required.
Finally, DMCI objects to the CAs
reversal of the findings of the labor arbiter and the NLRC in the absence of a showing
that the labor authorities committed a grave abuse of discretion or that
evidence had been disregarded or that their rulings had been arrived at
arbitrarily.
The Case for Jamin
In his Comment (to the Petition),[23]
Jamin prays that the petition be denied for having been filed out of time and
for lack of merit.
He claims, in support of his plea for
the petitions outright dismissal, that DMCI received a copy of the CA decision
(dated
On the merits of the case, Jamin
submits that the CA committed no error in nullifying the rulings of the labor
arbiter and the NLRC. He contends that DMCI misread this Courts rulings in Fernandez v. National Labor Relations Commission,
et al.[26] and
D.M.
Consunji, Inc. v. NLRC,[27]
cited to support its position that Jamin was a project employee.
Jamin argues that in Fernandez, the Court explained that the proviso in the second paragraph of
Article 280 of the Labor Code relates only to casual employees who shall be considered regular employees if they
have rendered at least one year of service, whether such service is continuous
or broken. He further argues that in Fernandez,
the Court held that inasmuch as the documentary evidence clearly showed gaps of
a month or months between the hiring of Ricardo Fernandez in the numerous
projects where he was assigned, it was the Courts conclusion that Fernandez
had not continuously worked for the company but only intermittently as he was
hired solely for specific projects.[28]
Also, in Fernandez, the Court
affirmed its rulings in earlier cases that the failure of the employer to
report to the [nearest] employment office the termination of workers everytime
a project is completed proves that the employees are not project employees.[29]
Jamin further explains that in the D.M. Consunji, Inc. case, the company
deliberately omitted portions of the Courts ruling stating that the
complainants were not claiming that they were regular employees; rather, they
were questioning the termination of their employment before the completion of
the project at the Cebu Super Block, without just cause and due process.[30]
In the matter of termination reports
to the DOLE, Jamin disputes DMCIs submission that it committed only few lapses
in the reportorial requirement. He maintains that even the NLRC noted that
there were no termination reports with the DOLE Regional Office after every
completion of a phase of work, although the NLRC considered that the report is
required only for statistical purposes. He, therefore, contends that the CA
committed no error in holding that DMCIs failure to submit reports to the DOLE
was an indication that he was not a project employee.
Finally, Jamin argues that as a
regular employee of DMCI for almost 31 years, the termination of his employment
was without just cause and due process.
The Courts Ruling
The procedural issue
Was DMCIs appeal filed out of time,
as Jamin claims, and should have been dismissed outright? The records support
Jamins submission on the issue.
DMCI received its copy of the
Necessarily, DMCIs petition for
review on certiorari is also late as
it had only fifteen (15) days from notice of the CA decision to file the
petition or the denial of its motion for reconsideration filed in due time.[33]
The reckoning date is
As earlier mentioned, Jamin worked for
DMCI for almost 31 years, initially as a laborer and, for the most part, as a carpenter. Through all those years, DMCI treated him as
a project employee, so that he never obtained tenure. On the surface and at
first glance, DMCI appears to be correct. Jamin entered into a contract of
employment (actually an appointment paper to which he signified his conformity)
with DMCI either as a field worker, a temporary worker, a casual employee, or a
project employee everytime DMCI needed his services and a termination of
employment paper was served on him upon completion of every project or phase of
the project where he worked.[35]
DMCI would then submit termination of employment reports to the DOLE,
containing the names of a number of employees including Jamin.[36]
The NLRC and the CA would later on say, however, that DMCI failed to submit
termination reports to the DOLE.
The CA pierced the cover of Jamins
project employment contract and declared him a regular employee who had been
dismissed without cause and without notice. To reiterate, the CAs findings
were based on: (1) Jamins repeated and successive engagements in DMCIs
construction projects, and (2) Jamins performance of activities necessary or
desirable in DMCIs usual trade or business.
We
agree with the CA. In Liganza v. RBL
Shipyard Corporation,[37] the
Court held that [a]ssuming, without
granting[,] that [the] petitioner was initially hired for specific projects or
undertakings, the repeated re-hiring and continuing need for his services for
over eight (8) years have undeniably made him a regular employee. We find
the Liganza ruling squarely
applicable to this case, considering that for almost 31 years, DMCI had repeatedly,
continuously and successively engaged Jamins services since he was hired on
December 17, 1968 or for a total of 38 times 35 as shown by the schedule of
projects submitted by DMCI to the labor arbiter[38]
and three more projects or engagements added by Jamin, which he claimed DMCI
intentionally did not include in its schedule so as to make it appear that there
were wide gaps in his engagements. One
of the three projects was local, the Ritz
Towers,[39] from
July 29, 1980 to June 12, 1982, while the other two were overseas the New Istana Project in Brunei, Darussalam,
from June 23, 1982 to February 16, 1984;[40]
and again, the New Istana Project,
from January 24, 1986 to May 25, 1986.[41]
We reviewed Jamins employment
contracts as the CA did and we noted that while the contracts indeed show that Jamin
had been engaged as a project employee,
there was an almost unbroken string of Jamins rehiring from
For not disclosing that there had been
other projects where DMCI engaged his services, Jamin accuses the company of
suppressing vital evidence that supports his contention that he rendered
service in the companys construction projects continuously and repeatedly for
more than three decades. The non-disclosure might not have constituted
suppression of evidence it could just have been overlooked by the company
but the oversight is unfair to Jamin as the non-inclusion of the three projects
gives the impression that there were substantial gaps not only of several
months but years in his employment with DMCI.
Thus, as Jamin explains, the Ritz
Tower Project (July 29, 1980 to June 12, 1982) and the New Istana Project (June
23, 1982 to February 16, 1984) would explain the gap between the Midtown Plaza
project (September 3, 1979 to July 28,
1980) and the IRRI Dorm IV project (June 13, 1984 to March 12, 1985) and the
other New Istana Project (January 24, 1986 to May 25, 1986) would explain the
gap between P. 516 Hanger (September 13, 1985 to January 23, 1986) and P. 516
Maint (May 26, 1986 to November 18, 1987).
To reiterate, Jamins employment
history with DMCI stands out for his continuous, repeated and successive rehiring
in the companys construction projects. In all the 38 projects where DMCI
engaged Jamins services, the tasks he performed as a carpenter were
indisputably necessary and desirable in DMCIs construction business. He might
not have been a member of a work pool as DMCI insisted that it does not
maintain a work pool, but his continuous rehiring and the nature of his work unmistakably
made him a regular employee. In Maraguinot,
Jr. v. NLRC,[43] the
Court held 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.
Further, as we stressed in Liganza,[44] [r]espondent
capitalizes on our ruling in D.M.
Consunji, Inc. v. NLRC which reiterates the rule that the length of service
of a project employee is not the controlling test of employment tenure but
whether or not the employment has been fixed for a specific project or
undertaking the completion or termination of which has been determined at the
time of the engagement of the employee.
Surely, length of time is not the
controlling test for project employment. Nevertheless, it is vital in
determining if the employee was hired for a specific undertaking or tasked
to perform functions vital, necessary and indispensable to the usual business
or trade of the employer. Here, [private] respondent had been a project
employee several times over. His employment ceased to be coterminous with
specific projects when he was repeatedly re-hired due to the demands of
petitioners business.[45]
Without doubt, Jamins case fits squarely into the employment situation just quoted.
The termination reports
With our ruling that Jamin had been a
regular employee, the issue of whether DMCI submitted termination of employment
reports, pursuant to Policy Instructions No. 20 (Undated[46]),
as superseded by DOLE Department Order No. 19 (series of 1993), has become
academic. DOLE Policy Instructions No. 20 provides in part:
Project employees are not entitled
to termination pay if they are terminated as a result of the completion of the project
or any phase thereof in which they are employed, regardless of the number of
projects in which they have been employed by a particular construction company.
Moreover, the company is not required to obtain a clearance from the Secretary
of Labor in connection with such termination. What is required of the company
is a report to the nearest Public Employment Office for statistical purposes.[47]
To set the records straight, DMCI indeed
submitted reports to the DOLE but as pointed out by Jamin, the submissions started
only in 1992.[48] DMCI
explained that it submitted the earlier reports (1982), but it lost and never
recovered the reports. It reconstituted the lost reports and submitted them to the
DOLE in October 1992; thus, the dates appearing in the reports.[49]
Is David M. Consunji, DMCIs
President/General Manager, liable
for Jamins dismissal?
While there is no question that the
company is liable for Jamins dismissal, we note that the CA made no
pronouncement on whether DMCIs President/General Manager, a co-petitioner with
the company, is also liable.[50]
Neither had the parties brought the matter up to the CA nor with this Court. As
there is no express finding of Mr. Consunjis involvement in Jamins dismissal,
we deem it proper to absolve him of liability in this case.
As a final point, it is well to
reiterate a cautionary statement we made in Maraguinot,[51]
thus:
At this time, we wish to allay any fears that this decision
unduly burdens an employer by imposing a duty to re-hire a project employee
even after completion of the project for which he was hired. The import of this
decision is not to impose a positive and sweeping obligation upon the employer
to re-hire project employees. What this decision merely accomplishes is a
judicial recognition of the employment status of a project or work pool
employee in accordance with what is fait
accompli, i.e., the continuous
re-hiring by the employer of project or work pool employees who perform tasks
necessary or desirable to the employers usual business or trade.
In sum, we deny the present appeal for
having been filed late and for lack of any reversible error. We see no point in
extending any liberality by disregarding the late filing as the petition lacks
merit.
WHEREFORE,
premises considered, the petition is hereby DENIED for late filing and for lack of merit. The decision dated
SO
ORDERED.
ARTURO D. BRION
Associate
Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate
Justice
Chairperson
|
DIOSDADO M. PERALTA Associate
Justice |
JOSE Associate
Justice |
|
|
|
MARIA
Associate
Justice
A T T E S T A T I O N
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 Courts Division.
ANTONIO
T. CARPIO
Associate
Justice
Chairperson,
Second Division
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution,
and the Division Chairperson's Attestation, I certify 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 Courts Division.
RENATO C.
CORONA
Chief Justice
* Additional Member vice Justice
Bienvenido L. Reyes per Raffle dated
[1] Rollo, pp. 3-23; filed pursuant to Rule 45 of the Rules of Court.
[2]
[3]
[4] Supra note 2, at 2-31; Schedule of DMCI projects where Jamin worked.
[5] Rollo, pp. 49-50.
[6]
[7]
[8]
[9]
[10] Supra note 2.
[11] Baguio
Country Club Corporation v. NLRC, G.R. No. 71664,
[12] G.R. No. 159862,
[13] 503 Phil. 875 (2005).
[14] Section 2.2(e)
[15] Supra
note 3.
[16] Supra note 1.
[17] G.R. No. 106090,
[18] 401 Phil. 635 (2000).
[19] Supra note 13.
[20] Supra note 14.
[21] Supra note 1, at 16-17.
[22] OMNIBUS RULES IMPLEMENTING THE LABOR CODE, Book VI, Rule I, Sec. 1(d)(iii), last paragraph, not Book V, Rule XXIII, Section 2(c), as cited.
[23] Rollo, pp. 328-348.
[24]
[25]
[26] Supra note 17.
[27] Supra note 18.
[28] Supra note 17, at 465.
[29]
[30] Supra note 18, at 642.
[31] Supra note 24.
[32] Supra note 1, at 2.
[33] RULES OF COURT, Rule 45, Section 1.
[34] 497 Phil. 227 (2005), citing Buenaobra v. Lim King Guan, 465 Phil.
290 (2004).
[35] Rollo, pp. 71-140.
[36]
[37] Supra note 12, at 689.
[38] Supra note 6.
[39] Rollo,
p. 171; Certification of Premium Payments, SSS
[40]
[41]
[42] Supra note 6.
[43] 348 Phil. 580 (1998).
[44] Supra note 12, at 689.
[45] Ibid.
[46] VICENTE B. FOZ, THE LABOR CODE OF THE PHILIPPINES and ITS IMPLEMENTING RULES AND REGULATIONS, 7th Edition, 1979, pp. 134-135, but cited as Policy Instructions No. 20 (Series of 1977) in Raycor Aircontrol Systems, Inc. v. NLRC, 330 Phil. 306, 315 (1996).
[47]
[48] Rollo, pp. 141-147.
[49]
[50] Supra note 2, at 37.
[51] Supra note 43 at 605.