SECOND
DIVISION
HIGHWAY
COPRA TRADERSAND/OR
GERSON DULANG
[OWNER
- OPERATOR],
LUZVIMINDA DULANG,
Petitioners,
G.
R.
No. 108889
July
30,
1998
-versus-
NATIONAL
LABOR
RELATIONS
COMMISSION -
CAGAYAN DE
ORO CITY
AND DAVID EMPEYNADO,
Respondents.
D
E C I S I
O N
MARTINEZ,
J :
On May 15, 1986, private
respondent David Empeynado was employed as a general utility man by
petitioners
in their business of trading copra and charcoal with a daily wage of
P35.00.
Private respondent's work consisted of weighing copra or charcoal,
bagging
copra for loading and ascertaining the moisture content thereof. He was
likewise a multi-purpose handyman since he worked as a driver of
petitioners'
trucks, a mechanic and a messenger to follow-up petitioners' contracts
with other companies, to register their vehicles, to pay their taxes,
and
to collect and receive payments in their behalf.
Private respondent,
however, was not paid his full salary but was merely given cash
advances.
When he sought full payment thereof, petitioners informed him not to
report
for work starting January 12, 1987, and wait until he is re-hired which
never happened. Thus, on December 16, 1987, he filed before the Labor
Arbiter,
a Complaint for illegal dismissal and non-payment of regular salaries
against
petitioners. After hearing, the Labor Arbiter found that private
respondent
was merely a casual employee and accordingly dismissed his Complaint in
a Decision the dispositive portion of which reads:[1]
"WHEREFORE, in view
of the foregoing considerations, judgment is hereby rendered: [1]
declaring
that complainant's employment status with respondent is casual; and [2]
dismissing complainant's charge for illegal dismissal and the money
claims
for overtime pay, holiday pay, 13th month pay, emergency cost of living
allowance, and unpaid wages against respondent for lack of merit.
SO ORDERED."[2]
On appeal, the National
Labor Relations Commission [NLRC] reversed the Labor Arbiter's decision
and ruled in this wise:
"WHEREFORE, the
decision
appealed from is Annulled and Set Aside and a new one entered declaring
complainant David Empeynado a regular employee and his termination from
the service held as illegal. Accordingly, respondents are ordered
jointly
and solidarily to reinstate complainant and pay his backwages effective
from his date of lay-off on January 12, 1987 up to January 11, 1990
plus
his claims for unpaid wages and salary differentials and proportionate
13th month pay for three [3] years, less complainant's cash advance of
P2,000.00 or in the net award of P60,306.67 as computed above.
"In case the
reinstatement
of complainant is found impractical due to any lawful supervening event
not attributable to the fault of respondents, the determination of
which
in case of dispute over the matter is tasked to the Labor Arbiter below
after due notice and hearing during the execution stage, complainant is
granted the alternative relief of payment of separation pay which is
hereby
fixed for a total of three [3] months salary based on the prevailing
statutory
rate at the time of his termination on January 12, 1987. With costs
against
respondents.
SO ORDERED."[3]
When their motion for reconsideration
was denied by the NLRC,[4]
petitioners elevated the case via petition for certiorari. Petitioners
principally ascribe grave abuse of discretion on the part of the NLRC
for
declaring private respondent a regular employee and thus, entitled to
unpaid
wages and other monetary benefits. They argue that private respondent
performed
tasks which were menial and not in any way connected with petitioners'
copra business and that he was hired only on a "per need basis."
The petition must fail.
The factual milieu
of this case undisputably shows that private respondent was a regular
employee
of petitioners' copra business. Article 280 of the Labor Code[5]
describes a regular employee as one who is either: [1] 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 he is employed.[6]
The Labor Code draws
a fine line between regular and casual employees to protect the
interests
of labor. We ruled in Baguio Country Club Corporation vs. NLRC[7]
that "its language 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." Thus, notwithstanding any agreements to the
contrary, an employment is deemed regular when the activities performed
by the employee are usually necessary or desirable in the usual
business
or trade of the employer.[8]
The primary standard, therefore, of determining a regular employment is
the reasonable connection between the particular activity performed by
the employee in relation to the usual business or trade of the
employer,
i.e. if the work is usually necessary or desirable in the usual
business
or trade of the employer. The connection can be determined by
considering
the nature of the work performed and its relation to the scheme of the
particular business or trade in its entirety.[9]
In this case, the
nature
of private respondent's work as a general utility man was definitely
necessary
and desirable to petitioners' business of trading copra and charcoal
regardless
of the length of time he worked therein. As such, he is a regular
employee
pursuant to the first paragraph of Article 280 of the Labor Code.
Petitioners further
argue that private respondent was only engaged for a specific task, the
completion of which resulted in the cessation of his employment. This
is
not correct. By "specific project or undertaking," Article 280 of the
Labor
Code contemplates an activity which is not commonly or habitually
performed
or such type of work which is not done on a daily basis but only for a
specific duration of time or until completion in which case, the
services
of an employee are necessary and desirable in the employer's usual
business
only for the period of time it takes to complete the project.[10]
Such circumstance does not obtain in this case.
We now turn to the
issue of backwages. In determining the proper amount of backwages, the
material date to consider is March 21, 1989 which is when Republic Act
No. 6715[11]
took effect. This law amended, among others, Article 279 [related to
backwages]
of the Labor Code.[12]
Said amendatory law,
however, does not cover illegal dismissals effected prior to March 21,
1989, hence, we apply the "Mercury Drug Rule" as enunciated in
the
landmark case of Mercury Drug Co., Inc., et al. vs. CIR, et al.[13]
In this case, the Court fixed the amount of backwages to be awarded to
an illegally dismissed employee to three [3] years without further
qualifications
or deductions, for reason of expediency in the execution of the
decision.
Any award in excess of the three years is null and void as to the
excess.[14]
Of note also is the
"Ferrer Doctrine" laid down in the case of Ferrer vs. NLRC[15]
as reiterated in Pines City Educational Center vs. NLRC[16]
which adopted the rule applied prior to the "Mercury Drug Rule". The
said
doctrine states that the employer may, however, deduct any amount which
the employee may have earned during the period of his illegal
termination.[17]
Computation of full backwages and presentation of proof as to income
earned
elsewhere by the illegally dismissed employee after his termination and
before actual reinstatement should be ventilated in the execution
proceedings
before the Labor Arbiter concordant with Section 3, Rule 8 of the 1990
New Rules of Procedure of the NLRC.[18]
To settle once and
for all the rule on the correct computation of the award of backwages,
this Court laid down jurisprudence in its Resolution en banc in
Bustamante vs. NLRC[19]
with regard to illegal dismissals effected after March 21, 1989,
applying
Article 279 of the Labor Code, as amended. Thus, an illegally dismissed
employee is entitled to his full backwages from the time his
compensation
was withheld from him [which, as a rule, is from the time of his
illegal
dismissal] up to the time of his actual reinstatement. The legislative
policy behind Republic Act No. 6715 points to " full backwages" as
meaning
exactly that, i.e., without deducting from backwages the
earnings
derived elsewhere by the concerned employee during the period of his
illegal
dismissal.
Considering that
private
respondent was terminated from service on January 12, 1987 which is
prior
to March 21, 1989, the NLRC correctly applied the ruling in the Mercury
Drug case.[20]
WHEREFORE, premises
considered, the instant petition is DISMISSED. The assailed Resolution
dated November 13, 1992 of the National Labor Relations Commission is
AFFIRMED.
SO ORDERED.
Regalado, Melo, Puno
and Mendoza, JJ., concur.
________________________
Endnotes:
[1]
Decision of Labor Arbiter Arturo M. Paculanang dated May 15, 1989 in
Case
No. Sub-RAB IX-01-10064-88.
[2]
Rollo, p. 57.
[3]
NLRC [Fifth Division] Resolution dated November 13 1992 penned by
Presiding
Commissioner Musib M. Buat, and concurred in by Commissioners Oscar N.
Abella and Leon G. Gonzaga, Jr.; Rollo, pp. 38-39.
[4]
Resolution dated January 14, 1993
[5]
"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
employment 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."
[6]
Purefoods Corporation vs. NLRC, Rodolfo Cordova, Violeta Crusis, et.
al.,
G.R. No. 122653, December 12, 1997 citing the cases of Philippine
Geothermal,
Inc. vs. NLRC, 189 SCRA 211, 215 [1990], Mercado vs. NLRC, 201 SCRA
332,
341-342 [1991], and Aurora Land Project Corp. vs. NLRC, G.R. No.
114733,
January 2, 1997, 266 SCRA 48.
[7]
206 SCRA 643 [1992], citing De Leon vs. NLRC, 176 SCRA 615 [1989],
which
is cited in Bustamante vs. NLRC, 255 SCRA 145 [1996].
[8]
De Leon vs. NLRC, supra., 621.
[9]
Ibid.
[10]
Tucor Industries, Inc. vs. NLRC, 197 SCRA 296, 301 [1991] cited in
Purefoods
Corporation vs. NLRC, Rodolfo Cordova, Violeta Crusis, et. al., supra.
[11]
Otherwise known as the Herrera-Veloso Law.
[12]
Article 279. Security of Tenure. — In cases of regular
employment,
the employer shall not terminate the services of an employee except for
a just cause or when authorized by this Title. An employee who is
unjustly
dismissed from work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full backwages,
inclusive
of allowances, and to his other benefits or their monetary equivalent
computed
from the time his compensation was withheld from him up to the time of
his actual reinstatement.
[13]
56 SCRA 694, 709.
[14]
Medado vs. Court of Appeals, 185 SCRA 80 [1990], cited in Bustamante
vs.
NLRC, G.R. No. 111651, November 28, 1996, 265 SCRA 61, 69.
[15]
G.R. No. 100898, July 5, 1993, 224 SCRA 410, 423.
[16]
G.R. No. 96779, November 10, 1993, 227 SCRA 655.
[17]
Ferrer vs. NLRC, supra. 423., citing East Asiatic Company, Ltd. vs.
Court
of Industrial Relations, 40 SCRA 521 [1971].
[18]
Ibid.
[19]
265 SCRA 61.
[20]
NLRC Resolution, Rollo pp. 36-38. |