EN
BANC
ARTEMIO J. ROMARES,
Petitioner,
G.
R.
No. 122327
August
19, 1998
-versus-
NATIONAL
LABOR
RELATIONS
COMMISSION
AND
PILMICO FOODS
CORPORATION,
Respondents.
D
E C I S I
O N
MARTINEZ,
J :
This is a case of illegal
dismissal. The Decision of the Executive Labor Arbiter[1]
reinstating petitioner was reversed by the National Labor Relations
Commission.
Hence, this appeal.
The antecedent facts
as summarized in the Decision of the Executive Labor Arbiter are as
follows:
"Complainant in his
Complaint and Position Paper alleged that he was hired by respondent in
its Maintenance/Projects/Engineering Department during the periods and
at respective rates as follows:
[1] Sept. 1, 1989
to
Jan. 31, 1990 — P89.00/day.
[2] Jan. 16, 1991
to
Jun. 15, 1991 — 103.00/day
[3] Aug. 16, 1992
to
Jan. 15, 1993 — 103.00/day
"That having rendered
a
total service of more than one [1] year and by operation of law,
complainant
has become a regular employee of respondent; That complainant has
performed
tasks and functions which were necessary and desirable in the operation
of respondent's business which include painting, maintenance, repair
and
other related jobs; That complainant was never reprimanded nor
subjected
to any disciplinary action during his engagement with the respondent;
That
without any legal cause or justification and in the absence of any time
to know of the charge or notice nor any opportunity to be heard,
respondent
terminated him; That his termination is violative of the security of
tenure
clause provided by law; That complainant be awarded damages and prays
that
he be reinstated to his former position, be awarded backwages, moral
and
exemplary damages and attorney's fees.
"Respondent, on the
other hand, maintains that complainant was a former contractual
employee
of respondent and as such his employment was covered by contracts; That
complainant was hired as mason in the Maintenance/Project Department
and
that he was engaged only for a specific project under such department;
That complainant's services as mason was not continuous, in fact, he
was
employed with International Pharmaceuticals, Inc. in Opol, Misamis
Oriental
from January to April 1992; That when his last contract expired on
January
15, 1993, it was no longer renewed and thereafter, complainant filed
this
instant complaint; he prays that this instant petition be dismissed for
lack of merit."[2]
In finding that petitioner
is a regular employee, the Executive Labor Arbiter said:
"The records reveal
that complainant has been hired and employed by respondent PILMICO
since
September 1, 1989 to January 15, 1993, in a broken tenure but all in
all
totalled to over a year's service. Complainant's period of employment
started
on September 1, 1989 up to January 31, 1990 or for a period of five [5]
months. Then on January 16 1991, he was hired again up to June 15,
1991,
or for a period covering another five [5] months. Then on August 16,
1992,
he was hired again up to January 15, 1993 or for a period of another
five
[5] months. Thus, from September 1, 1989 up to January 15, 1993,
complainant
has worked for fifteen [15] months more or less and has been hired and
terminated three times. But in all his engagements by respondent, he
was
assigned at respondent's Maintenance/Projects/Engineering Department
performing
maintenance work, particularly the painting of company buildings,
maintenance
chores, like cleaning and sometimes operating company equipment and
sometimes
assisting the regulars in the Maintenance/ Engineering Department. The
fact that complainant was hired, terminated and rehired again for three
times in a span of more than three [3] years and performing the same
functions,
only bolstered our findings that complainant is already considered a
regular
employee and therefore covered by security of tenure and cannot be
removed
except for lawful and valid cause as provided by law and after due
process.
There is no dispute that complainant, in the case at bar, has already
served
respondent for more than six [6] months, the period allowable for
probationary
period and even more than one year service which under the law shall be
considered a regular employee. This finding and conclusion finds
application
in the case of Kimberly Independent Labor Union for Solidarity,
Activism
and Nationalism - Olalia v. Hon. Franklin M. Drilon, G. R. No. 77629
and
78791, promulgated last May 9, 1990, wherein the Honorable Supreme
Court
has classified the two kinds of regular employees as:
1. those who are
engaged
to perform activities which are usually necessary or desirable in the
usual
business or trade of the employer; and
2. those who have
rendered
at least one (1) year of service whether continuous or broken with
respect
to the activity in which they are employed.
"While the actual
regularization
of the employees entails the mechanical act of issuing regular
appointment
papers and compliance with such other operating procedures, as may be
adopted
by the employer, it is more in keeping with the intent and spirit of
the
law to rule that the status of regular employment attaches to the
casual
employee on the day immediately after the end of his first year of
service.
"Applying the above
classification in this particular case, there is no doubt that herein
complainant
falls within the second classification and as such, he is a regular
employee
of respondent PILMICO. And being a regular employee, he is vested with
his constitutional right to due process before he can be terminated
from
his work and only for valid and lawful cause as provided by law. In the
case of National Service Corporation v. NLRC, 168 SCRA 122, the Court
has
laid down the guidelines or requisites to be complied in order that
termination
of employment can be legally effected, to wit:
"These are:
1. the notice which
apprises the employee of the particular acts or omissions for which his
dismissal is sought; and
2. the subsequent
notice
which informs the employee of the employer's decision to dismiss him.
"In the case at bar,
respondent did not comply with the above guidelines for the dismissal
of
herein complainant. The procedure prescribed by law is mandatory.
Unless
followed, the employee's right to due process of law is breached and
vitiates
management's decision to terminate the employment.
"This ELA having
declared
herein complainant as a regular employee as above stated, then his
separation
or termination from respondent company not being in consonance with the
guidelines enunciated by law, his termination is therefore illegal."[3]
and thereafter disposed
of the case as follows:
"WHEREFORE, in the
light of the above-discussion, it is hereby declared and ordered that
complainant
Artemio J. Romares is a regular employee of respondent Pilmico Foods
Corporation
since January 16, 1993 and his termination on the same date is illegal
as contrary to law and public policy and therefore, he would be
reinstated
to his former position as if he was not terminated and to be entitled
to
all benefits, allowances accruing thereto and without loss of seniority
rights.
"Likewise, respondent
PILMICO in consonance with the above- discussion is hereby ordered to
pay
complainant the following, to wit:
1. Backwages in the
amount of P34,814.00;
2. Attorney's fees
representing 5% of the amount awarded for backwages, allowances and
other
benefits;
3. All other claims
are hereby dismissed for lack of merit.
"SO ORDERED."[4]
On appeal, the NLRC[5]
set aside the Decision of the Executive Labor Arbiter and ruled:
"Respondent argues
that even if the employee was performing work which is related to the
business
or trade of the employer, the employee cannot be considered a regular
employee
if his employment is for a specific project or undertaking and for a
fixed
period [vol. 1, p. 26, supra], hence, the applicable provision
is
paragraph 1 and not paragraph 2 of Article 280 of the Labor Code, as
amended
[vol. 2, p. 5, supra].
"With the given
circumstances,
We cannot agree with the pronouncement of the Executive Labor Arbiter
that
it is the intent and spirit of the law that the status of regular
employment
is attached to the worker on the day immediately after the end of his
first
year of service [vol. I, p. 50, supra].
"What is apparently
applicable in the case at bar is paragraph 1 of Article 280 of the
Labor
Code, as amended. As clearly shown by evidence, complainant's
employment
contracts [vol. 1, pp. 39-40, supra], were for fixed or
temporary
periods. Thus, when complainant's employment with respondent was
terminated
[vol. 1, p. 41, supra], such cannot be considered as illegal
since
the termination was due to the expiration of the contract.
"WHEREFORE, the
assailed
decision is Vacated and Set Aside. The complaint is hereby Dismissed
for
lack of merit.
"SO ORDERED."[6]
The Motion for Reconsideration
having been denied, petitioner interposed this Petition for Certiorari
and Prohibition.
We find the petition
meritorious.
Petitioner seeks to
traverse the NLRC's ruling that the applicable provision in the case at
bar is paragraph 1 of Article 280 of the Labor Code, as amended. In
this
regard, the NLRC concluded that since petitioner's employment contracts
were for fixed or temporary periods, as an exception to the general
rule,
he was validly terminated due to expiration of the contract of
employment.
In determining the
status of petitioner as a regular employee, reference is made to
Article
280 of the Labor Code, as amended.[7]
Thus, the two kinds of regular employees are [1] those who are engaged
to perform activities which are necessary or desirable in the usual
business
or trade of the employer; and [2] those casual employees who have
rendered
at least one year of service, whether continuous or broken, with
respect
to the activity in which they are employed.[8]
Construing the
aforesaid
provision, the phrase "usually necessary or desirable in the usual
business
or trade of the employer" should be emphasized as the criterion in the
instant case. Facts show that petitioner's work with PILMICO as a mason
was definitely necessary and desirable to its business. PILMICO cannot
claim that petitioner's work as a mason was entirely foreign or
irrelevant
to its line of business in the production of flour yeast feeds and
other
flour products.
The language of the
law evidently manifests the intent to safeguard the tenurial interest
of
the worker who may be denied the rights and benefits due a regular
employee
by virtue of lopsided agreements with the economically powerful
employer
who can maneuver to keep an employee on a casual status for as long as
convenient.[9]
It is noteworthy that during each rehiring, the summation of which
exceeded
one [1] year, petitioner was assigned to PILMICO's
Maintenance/Projects/Engineering
Department performing the same kind of maintenance work such as
painting
of company buildings cleaning and operating company equipment, and
assisting
the other regular employees in their maintenance works. Such a
continuing
need for the services of petitioner is sufficient evidence of the
necessity
and indispensability of his services to PILMICO's business or trade.[10]
The fact that petitioner was employed with another company in the
interregnum
from January to April 1992 is of no moment.
To expound further,
granting, arguendo, that petitioner was regarded as a temporary
employee, he had been converted into a regular employee by virtue of
the
proviso in the second paragraph of Article 280 for having worked with
PILMICO
for more than one [1] year. We held in Baguio Country Club Corporation
vs. NLRC[11]
that:
"If the employee has
been performing the job for at least one year, even if the performance
is not continuous or merely intermittent, the law deems the repeated
and
continuing need for its performance as sufficient evidence of the
necessity
is not indispensability of that activity to the business. Hence, the
employment
is also considered regular but only with respect to such activity and
while
such activity exists."
Succinctly put, in rehiring
petitioner, employment contracts[12]
ranging from two [2] to three [3] months with an express statement that
his temporary job/service as mason shall be terminated at the end of
the
said period or upon completion of the project was obtrusively a
convenient
subterfuge utilized to prevent his regularization. It was a clear
circumvention
of the employee's right to security of tenure and to other benefits.[13]
It likewise evidenced bad faith on the part of PILMICO.
The limited period
specified in petitioner's employment contract having been imposed
precisely
to circumvent the constitutional guarantee on security of tenure
should,
therefore, be struck down or disregarded as contrary to public policy
or
morals.[14]
To uphold the contractual arrangement between PILMICO and petitioner
would,
in effect permit the former to avoid hiring permanent or regular
employees
by simply hiring them on a temporary or casual basis thereby violating
the employee's security of tenure in their jobs.[15]
Article 280 was
emplaced
in our statute books to prevent the circumvention of the employee's
right
to be secure in his tenure by indiscriminately and completely ruling
out
all written and oral agreements inconsistent with the concept of
regular
employment defined therein.[16]
Where an employee has been engaged to perform activities which are
usually
necessary or desirable in the usual business of the employer such
employee
is deemed a regular employee and is entitled to security of tenure
notwithstanding
the contrary provisions of his contract of employment.[17]
We cannot subscribe
to the erroneous ruling of the NLRC that the applicable provision is
paragraph
1 of Article 280 of the Labor Code, as amended, which makes
petitioner's
employment contracts for fixed or temporary periods. Stated otherwise,
NLRC erred in finding that the contract of employment of petitioner was
for a fixed or specified period.
At this juncture, the
leading case of Brent School, Inc. vs. Zamora[18]
proves instructive. As reaffirmed in subsequent cases,[19]
this Court has upheld the legality of fixed-term employment. It ruled
that
the decisive determinant in "term employment" should not be the
activities
that the employee is called upon to perform but the day certain agreed
upon by the parties for the commencement and termination of their
employment
relationship. But this Court went on to say that where from the
circumstances
it is apparent that the periods have been imposed to preclude
acquisition
of tenurial security by the employee, they should be struck down or
disregarded
as contrary to public policy and morals.
The Brent ruling[20]
also laid down the criteria under which "term employment" cannot be
said
to be in circumvention of the law on security of tenure:
(1) The fixed period
or employment was knowingly and voluntarily agreed upon by the parties
without any force, duress, or improper pressure being brought to bear
upon
the employee and absent any other circumstances vitiating his consent;
or
(2) It satisfactorily
appears that the employer and the employee dealt with each other on
more
or less equal terms with no moral dominance exercised by the former or
the latter
None of these requisites
were complied with.
WHEREFORE, prescinding
from the foregoing disquisition, the present petition is GRANTED. The
challenged
Resolution dated February 21, 1995 of the NLRC is REVERSED and SET
ASIDE,
and the Decision dated February 15, 1994 of the Executive Labor Arbiter
is hereby REINSTATED.
SO ORDERED.
Melo, Puno and Mendoza,
JJ., concur.
________________________
Endnotes:
[1]
Decision of Executive Labor Arbiter Quintin B. Cueto III dated February
15, 1994 in NLRC RAB XII Case No. 12-05-11679-93.
[2]
Decision of Executive Labor Arbiter, Ibid.; Rollo, pp. 48-49.
[3]
Ibid., Rollo, pp. 49-50; 50-51; 52.
[4]
Ibid., Rollo, p. 58.
[5]
NLRC (Fifth Division) Resolution dated February 21, 1995, penned by
Commissioner
Leon G. Gonzaga, Jr., and concurred in by Presiding Commissioner Musib
M. Buat and Commissioner Oscar N. Abella.
[6]
Rollo pp. 81-82.
[7]
Article 280. Regular and Casual Employment. - The provisions of
written agreement to the contrary notwithstanding and regardless of the
oral agreement of the parties, an employment shall be deemed to be
regular
where the employee has been engaged to perform activities which are
usually
necessary or desirable in the usual business or trade of the employer
except
where the employment has been fixed for a specific project or
undertaking
the completion or termination of which has been determined at the time
of the engagement of the employee or where the work or services to be
performed
is seasonal in nature and the employment is for the duration of the
season.
An
employee shall be deemed to be casual if it is not covered by the
preceding paragraph: Provided, that, any employee who has rendered at
least
one year of service, whether such service is continuous or broken,
shall
be considered a regular employee with respect to the activity in which
he is employed and his employment shall continue while such activity
exists."
[8]
Purefoods Corporation vs. NLRC, Rodolfo Cordova, Violeta Crusis, et.
al.,
G.R. No. 122653, December 12, 1997; citing Philippine Geothermal, Inc.
vs. NLRC, 189 SCRA 211, 215 [1990]; Mercado vs. NLRC, 201 SCRA 332,
341-342
[1991]; Aurora Land Project Corp. vs. NLRC, G.R. No. 114733, January 2,
1997, 266 SCRA 48.
[9]
Baguio Country Club Corporation vs. NLRC, 206 SCRA 643 [1992], citing
the
case of De Leon vs. NLRC, 176 SCRA 615 [1989]; cited in Bustamante vs.
NLRC, G.R. No. 111651, March 15, 1996, 255 SCRA 145.
[10]
See Aurora Land Projects Corp. vs. NLRC, supra.
[11]
206 SCRA 643, cited in Megascope General Service vs. NLRC, G.R. No.
109224,
June 19, 1997, 274 SCRA 147, 156-157.
[12]
Rollo pp. 42-43.
[13]
See Cielo vs. NLRC, 193 SCRA 410 [1991] cited in Purefoods Corporation
vs. NLRC, et al., supra.
[14]
See Purefoods Corporation vs. NLRC et al., supra, citing Samson vs.
NLRC
253 SCRA 112 124 [1996].
[15]
Ibid., citing Conti vs. NLRC G.R. No 119253 April 10, 1997, 271 SCRA
114.
[16]
See Brent School, Inc., et al. vs. NLRC, et. al., 181 SCRA 702 [1990]
cited
in Isabelo Violeta and Jovito Salazar vs. NLRC; Fifth Division, and
Dasmariñas
Industrial and Steelworks Corporation G.R. No. 119573 October 10, 1997.
[17]
Isabelo Violeta and Jovito Baltazar vs. NLRC, et. al., ibid., citing
Tucor
Industries, Inc., et. al. vs. NLRC, et. al., 197 SCRA 296 [1991].
[18]
181 SCRA 702 [1990] cited in Purefoods Corporation vs. NLRC, et. al.,
supra.
[19]
Purefoods Corporation vs. NLRC, et. al., ibid., citing Blancaflor vs.
NLRC,
218 SCRA 366 [1993]; Caramol vs. NLRC, 225 SCRA 582 [1993]; Pines City
Educational Center vs. NLRC, 227 SCRA 655 [1993]; Philippine Village
Hotel
vs. NLRC, 230 SCRA 423 [1994].
[20]
Cited in Purefoods Corporation vs. NLRC, et. al., ibid. |