FIRST DIVISION
MARCIAL GU-MIRO,
Petitioner,
G.R.
No.
160952
August 20, 2004
-versus-
ROLANDO C. ADORABLE
AND
BERGESEN D.Y. MANILA,
Respondents.
D E C I S I O N
YNARES-SANTIAGO, J.:chanroblesvirtuallawlibrary
Before us is a Petition
for Review on Certiorari of the Decision of the Court of Appeals in
CA-G.R.
SP No. 66131 dated May 29, 2003,[1]
which modified the Decision of the National Labor Relations Commission
(NLRC) by increasing the incentive bonus awarded to petitioner from
US$594.56
to US$1189.12.
Petitioner Marcial Gu-Miro
was formerly employed as a Radio Officer of respondent Bergesen D.Y.
Philippines,
which acted for and in behalf of its principal Bergesen D.Y. ASA, on
board
its different vessels. A Certification dated April 14, 1998 was
issued
by Bergesen D.Y. Philippines, Inc.’s President and General Manager
Rolando
C. Adorable showing that petitioner served in the company on board its
vessels starting 1988.[2]
The case before us involves an employment contract signed by petitioner
to commence service on board the M/V HEROS, which stipulated a monthly
salary of US$929.00 for a period of eight (8) months. It also
provided
for overtime pay of US$495.00 per month and vacation leave with pay in
the amount of US$201.00 per month equivalent to six and a half days.[3]
The contract of employment was signed on March 18, 1996 and petitioner
commenced work on April 15, 1996.cralaw:red
Record shows that respondent
company traditionally gives an incentive bonus termed as Re-employment
Bonus to employees who decide to rejoin the company after the
expiration
of their employment contracts. After the expiration of
petitioner’s
contract in December 1996, the same was renewed by respondent company
until
September 9, 1997, as stated in the Certification issued by Bergesen
D.Y.
Philippines, Inc. In September 1997, petitioner’s services
were terminated due to the installation of labor saving devices which
made
his services redundant. Upon his forced separation from the
company,
petitioner requested that he be given the incentive bonus plus the
additional
allowances he was entitled to. Respondent company, however,
refused
to accede to his request.cralaw:red
Thus, in June 1999 petitioner
filed a complaint with the NLRC, Regional Arbitration Branch of Cebu,
for
payment of the incentive bonus from April 15, 1996 to September 15,
1997,
10% of the basic wage, unclaimed payment for incentive bonus from
September
1993 to June 1994, non-remittance of provident fund from July 1992 to
June
1994, moral and exemplary damages as well as attorney’s fees. On
December 29, 1999, the complaint was provisionally dismissed by the
NLRC
due to the failure of petitioner to file the required position
paper.
Petitioner re-filed the complaint on March 2, 2000 accordingly.chanrobles virtual law library
In a Decision dated
June 6, 2000, the Labor Arbiter dismissed the case for lack of merit,[4]
based on the following findings:chanrobles virtual law library
x
x x. “Incentive bonus” or reemployment bonus
are
benefits not found in the POEA approved contract. These are
benefits
which are specifically granted pursuant to an internal memorandum
entitled
“Employment Conditions for Filipino Seafarers serving on board vessels
of Bergesen D.Y. ASA”. As stated in the said internal memorandum,
entitlement to the benefits therein (is) not automatic but (is) subject
to some conditions. As clearly stated in the said memorandum, the
reemployment bonus is an “incentive bonus system for reemployment upon
signing for a subsequent period.” x
x
x. In order that a seafarer, like the complainant, be entitled to
reemployment/incentive bonus, he must satisfy all of the following
requirements,
to wit:chanroblesvirtuallawlibrary
(1)
He must be employed in a vessel under a principal who is a member of
the
reemployment bonus scheme;
(2)
He must have been an officer of the principal member’s vessel subject
to
the additional conditions stated in page 2 of the aforementioned
internal
memorandum; andchanrobles virtual law library
(3)
After serving in a principal-member’s vessel, he must be reemployed in
another or the same principal-member’s vessel.cralaw:red
To avail of the
benefits
under this scheme, seafarers like the complainant has to prove that he
met all the foregoing conditions. It is, thus, his burden to
prove
that he is entitled to the said benefit. Complainant, however,
miserably
failed to adduce evidence that he met all the foregoing conditions for
entitlement to the benefit. He relied on his unsubstantiated
allegation
that a certain Captain D. Ramirez received an incentive bonus even if
he
did not sign up with the Company. x
x
x.chanrobles virtual law library
x
x
x
x x
x
x x x
For obvious
reasons,
complainant’s claims for moral and exemplary damages as well as
attorney’s
fees are denied. x x x.[5]
Petitioner appealed to
the NLRC, which set aside the Labor Arbiter’s decision and ordered
respondents
to pay petitioner the amount of US$594.56 in a Decision dated March 5,
2001. The pertinent portion of the NLRC’s Decision states:chanroblesvirtuallawlibrary
The
Contract
of Employment entered into between the complainant and the respondents
specifically set a term of eight (8) months which was supposed to be
from
April 15, 1996 up to December 14, 1996. The complainant’s length
of service from December 15, 1996 to September 9, 1997, or a period of
nine (9) months, more or less, was an extended term of
employment.
A closer look at the facts shows that the extended term was even longer
than the original term of the contract.chanrobles virtual law library
x
x
x
x x
x
x x x
We construe that
the
extended term of the contract of employment from December 15, 1996 up
to
September 9, 1997 was considered as re-employment of the
complainant.
And when there was re-employment, it is presumed that all the
conditions
set forth by the respondents in their established company written
policy
entitled “Employment Conditions for Filipino Seafarers Serving Onboard
Vessels of Bergesen D.Y. ASA” are deemed complied with. The
pertinent
portion of the said company policy states:chanroblesvirtuallawlibrarychanrobles virtual law library
2.
Re-employment bonus
The company has
established
an incentive bonus system for re-employment upon signing for a
subsequent
period.cralaw:red
The conditions are
as
follows:chanrobles virtual law library
x
x
x
x x
x
x x x
Radio
Officers/Electricians
– Serving onboard bulk carriers- 8% of basic wage per month of actual
service.cralaw:red
To do otherwise,
we
would allow the respondent to circumvent its own established policy to
merely extending the original contract of employment.[6]
Petitioner and
respondents
filed separate Motions for Reconsideration which were both denied by
the
NLRC in its resolution dated April 24, 2001.
Not satisfied with the
monetary award, petitioner filed a petition for review with the Court
of
Appeals claiming that there was an error in computing the amount of the
incentive bonus he is entitled to. Petitioner argued that he
should
be considered as a regular employee of respondent company and thus,
entitled
to backwages or, at the very least, separation pay.chanrobles virtual law library
The Court of Appeals,
on May 29, 2003, rendered the assailed Decision where it ruled:chanrobles virtual law library
WHEREFORE,
the petition is GRANTED. The assailed Decision dated March 5,
2001
is hereby MODIFIED increasing the award of incentive bonus from
US$594.56
to US$1189.12.chanrobles virtual law library
SO ORDERED.[7]
In arriving at its
Decision,
the appellate court made the following findings:chanroblesvirtuallawlibrary
It is
uncontroverted
that the company grants incentive bonus for re-employment upon signing
for a subsequent period. For radio officers onboard bulk
carriers,
it shall be 8% of the basic wage per month of actual service. In
this case, we find nothing in the record to show that the
classification
of the vessel to which the petitioner was deployed is a Gas/LPG Tanker,
which would make him entitled to 10% instead of 8% of the basic wage as
incentive bonus. Thus, the public respondent correctly applied
the
rate of 8% of the basic wage per month of actual service, the basic
wage
in this case being the amount stipulated in the contract of employment,
i.e., US$929.00, and does not include the stipulated rate for overtime
pay.chanrobles virtual law library
The question now
is
the application of the provision of the memorandum with respect to the
length of actual service. Record shows that after the expiration
of the original eight-month employment contract on December 15, 1996,
the
petitioner was in fact re-employed when his service was extended for
another
nine (9) months or up to September 1997. This unquestionably
entitled
him to the incentive bonus for the 8-month period covered by the
contract
and which was correctly awarded to him by the public respondent
NLRC.
However, as to the succeeding period, although it was not covered by a
written contract, it is unrebutted that the petitioner was actually
made
to suffer work during that period. Hence, there was a monthly
re-employment
of the petitioner for the succeeding 9 months. Conformably, since
the incentive bonus is given for re-employment upon signing for a
subsequent
period, for purposes of computing the same, the petitioner is deemed to
have been re-employed not only for the 8 months covered by the contract
but also for the succeeding 8 months preceding the last month when he
was
terminated. x x x.cralaw:red
x
x
x
x x
x
x x xchanrobles virtual law library
As for the claim
for
backwages or separation pay, we note that these claims were neither
raised
in the petitioner’s position paper nor in the motion for
reconsideration
filed before the NLRC; hence, they can no longer be raised for the
first
time in this petition. x x x.[8]
Hence, the instant
petition
for certiorari based on the following grounds:chanroblesvirtuallawlibrary
I. THE
HONORABLE
COURT OF APPEALS ERRED WHEN IT PLACED THE BURDEN UPON PETITIONER TO
PROVE
THAT M/V HEROS IS AN LPG/GAS TANKER.
II. CONSIDERING
THAT
PETITIONER HAD WORKED FOR BERGESEN D.Y. PHILIPPINES FOR AND IN BEHALF
OF
ITS PRINCIPAL BERGESEN D.Y. ASA FOR TEN (10) LONG YEARS ABOARD ITS
DIFFERENT
VESSELS, PETITIONER SHOULD HAVE BEEN CONSIDERED AS A REGULAR EMPLOYEE
BY
THE COURT OF APPEALS.cralaw:red
III. THE HONORABLE
COURT
OF APPEALS LIKEWISE ERRED WHEN IT SAID IN ITS DECISION THAT PETITIONER
FAILED TO RAISE THE ISSUE OF BACKWAGES AND SEPARATION PAY IN THE MOTION
FOR RECONSIDERATION FILED WITH THE NLRC.[9]
In this petition, we
are
called upon to resolve two basic issues: The first concerns what
percentage to use in computing the incentive bonus which petitioner is
entitled to. In the memorandum entitled Employment Conditions for
Filipino Seafarers Serving Onboard Vessels of Bergesen D.Y. ASA
(Employment
Conditions Memorandum), Radio Officers are entitled to re-employment
bonus
equivalent to a certain percentage of their basic wage per month of
actual
service. If the employee served onboard a bulk carrier, he is
entitled
to 8% of his basic wage per month of actual service.
Alternatively,
if service was done onboard a gas carrier tanker, the employee is
entitled
to 10% of his basic wage per month of actual service.
The NLRC and the Court
of Appeals both agree that petitioner failed to adduce concrete proof
to
show that M/V HEROS is a Gas/LPG Tanker and not a bulk carrier.
Hence,
the Court of Appeals upheld the use of 8% by the NLRC as multiplier to
compute the incentive bonus. Respondent company argues that
petitioner
failed to allege the nature of M/V HEROS at the earliest opportunity,
belatedly
alleging this information in the Motion for Reconsideration with the
NLRC.
Petitioner insists that M/V HEROS is a Gas/LPG Tanker which entitles
him
to 10% of his basic wage as incentive bonus; and that the Court of
Appeals
erred in ruling that it was petitioner’s burden to prove the
classification
of M/V HEROS.cralaw:red
We rule in petitioner’s
favor. The registration papers, which contain the vessel
classification
of M/V HEROS, are the conclusive evidence that petitioner needs to
prove
his allegation. However, these are in the custody of respondent
company
or its mother company, Bergesen D.Y. ASA. Interestingly,
respondent
company never presented the registration papers in evidence.cralaw:red
We find that respondent
company’s failure to controvert the allegation, when it had the
opportunity
and resources to do so, works in favor of petitioner. Time and
again
we have held that should doubts exist between the evidence presented by
the employer and the employee, the scales of justice must be tilted in
favor of the latter.[10]
Moreover, the law creates the presumption that evidence willfully
suppressed
would be adverse if produced.[11]chanrobles virtual law library
Consequently, the amount
of incentive bonus termed as re-employment bonus which petitioner is
entitled
to should be computed as follows:chanrobles virtual law library
Salary per
month = US$929.00chanrobles virtual law library
No. of months of
actual
service = 16 months
Rate = 10% of
basic
wage US$929.00/month x 16 months x 10% = US$1,486.40
The second and third
grounds
raised in this Petition are related, based on petitioner’s allegation
that
he should be considered a regular employee of respondent company,
having
been employed onboard the latter’s different vessels for the span of 10
years. Hence, petitioner claims that he is entitled to backwages
or at the very least separation pay, invoking our decision in Millares,
et al. v. NLRC[12]
where it was held that the repeated re-hiring of a Chief Engineer of a
shipping company for 20 years is sufficient evidence of the necessity
and
indispensability of the employee’s service to the employer’s business
or
trade. Hence, applying the express provision of Article 280 of
the
Labor Code,[13]
such an employee should be considered as a regular employee.
Petitioner’s argument
is not well-taken. The decision of Millares, et al. v. NLRC was
reconsidered
and set aside in a Resolution[14]
where it was held:chanrobles virtual law library
It is clear
that seafarers are considered contractual employees. They can not
be considered as regular employees under Article 280 of Labor
Code.
Their employment is governed by the contracts they sign every time they
are rehired and their employment is terminated when the contract
expires.
Their employment is contractually fixed for a certain period of
time.
They fall under the exception of Article 280 whose 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 nature of the work or services to be performed is seasonal
in nature and employment is for the duration of the season.chanrobles virtual law library
x
x
x
x x
x
x x xchanrobles virtual law library
Moreover, it is an
accepted
maritime industry practice that employment of seafarers (is) for a
fixed
period only. Constrained by the nature of their employment which
is quite peculiar and unique in itself, it is for the mutual interest
of
both the seafarer and the employer why employment status must be
contractual
only or for a certain period of time. Seafarers spend most of
their
time at sea and understandably, they cannot stay for a long and an
indefinite
period of time at sea. Limited access to shore society during the
employment will have an adverse impact on the seafarer. The national,
cultural
and lingual diversity among the crew during the [Contract of
Enlistment]
is a reality that necessitates the limitation of its period.[15]
Clearly, petitioner
cannot
be considered as a regular employee notwithstanding that the work he
performs
is necessary and desirable in the business of respondent company.
As expounded in the above-mentioned Millares Resolution, an exception
is
made in the situation of seafarers. The exigencies of their work
necessitates that they be employed on a contractual basis.
Thus, even with the
continued re-hiring by respondent company of petitioner to serve as
Radio
Officer onboard Bergesen’s different vessels, this should be
interpreted
not as a basis for regularization but rather a series of contract
renewals
sanctioned under the doctrine set down by the second Millares
case.
If at all, petitioner was preferred because of practical
considerations—namely,
his experience and qualifications. However, this does not alter
the
status of his employment from being contractual.chanrobles virtual law library
With respect to the
claim for backwages and separation pay, it is now well-settled that the
award of backwages and separation pay in lieu of reinstatement are
reliefs
that are awarded to an employee who is unjustly dismissed.[16]
In the instant case, petitioner was separated from his employment due
to
the termination of an impliedly renewed contract with respondent
company.
Hence, there is no illegal or unjust dismissal.cralaw:red
WHEREFORE, premises
considered, the petition is GRANTED IN PART. The Decision of the
Court of Appeals in CA-G.R. SP No. 66131 dated May 29, 2003 is MODIFIED
in that the award of incentive bonus is increased from US$1189.12 to
US$1,486.40.
Petitioner’s claim that he be declared a regular employee and awarded
backwages
and separation pay is DENIED for lack of merit.cralaw:red
SO ORDERED.
Davide, C.J., Chairman,
Quisumbing, Carpio, and Azcuna, JJ., concur.
____________________________
Endnotes:chanroblesvirtuallawlibrary
[1]
Rollo, pp. 25-33; penned by Associate Justice Delilah Vidallon-Magtolis
and concurred in by Associate Justices Remedios A. Salazar-Fernando and
Edgardo F. Sundiam.
[2]
Annex D, Court of Appeals Rollo, p. 74.chanrobles virtual law library
[3]
Annex 1, Court of Appeals Rollo, p. 46.
[4]
Court of Appeals Rollo, p. 59.
[5]
Id., pp. 56-58.chanrobles virtual law library
[6]
Id., pp. 23-24.
[7]
Rollo, p. 33.
[8]
Id., pp. 31-32.
[9]
Id., pp. 16-18.chanrobles virtual law library
[10]
Asuncion v. NLRC, G.R. No. 129329, 31 July 2001, 362 SCRA 56, citing
Dizon
v. NLRC, G.R. No. 79554, 14 December 1989, 180 SCRA 52; These policies
are embodied in Articles 3 and 4 of the Labor Code, which read:chanroblesvirtuallawlibrarychanrobles virtual law library
Article
3. Declaration of basic policy.- The State shall afford
protection
to labor, promote full employment, ensure equal work opportunities
regardless
of sex, race or creed and regulate the relations between workers and
employers.
x x xchanrobles virtual law library
Article
4. Construction in favor of labor.- All doubts in the
implementation
and interpretation of the provisions of this Code, including its
implementing
rules and regulations, shall be resolved in favor of labor.
[11]
Rules of Court, Rule 131, Sec. 3 (e).chanrobles virtual law library
[12]
G.R. No. 110524, 14 March 2000, 328 SCRA 79.chanrobles virtual law library
[13]
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.chanrobles virtual law library
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.
[14]
Millares, et al. v. NLRC, G.R. No. 110524, 29 July 2002, 385 SCRA 306.chanrobles virtual law library
[15]
Id., pp. 318-319.chanrobles virtual law library
[16]
Bustamante v. NLRC, G.R. No. 111651, 28 November 1996, 265 SCRA 61;
Times
Transit Credit Coop., Inc. v. NLRC, G.R. No. 117105, 2 March 1999, 304
SCRA 11; De Paul/King Philip Customs Tailor v. NLRC, G.R. No. 129824,
10
March 1999, 304 SCRA 448; Philippine Industrial Security Agency
Corporation
v. Dapiton and NLRC, G.R. No. 127421, 8 December 1999, 320 SCRA 124;
Vinoya
v. NLRC, G.R. No. 126586, 25 August 2000, 339 SCRA 65; Prudential Bank
and Trust Company v. Reyes, G.R. No. 141093, 20 February 2001, 352 SCRA
316.
chan
robles virtual law library
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