ABS-CBN BROADCASTING CORPORATION vs.

MARLYN NAZARENO, MERLOU

GERZON, JENNIFER DEIPARINE, and JOSEPHINE LERASAN (G.R. No. 164156,
September 26, 2006)

Facts:

Petitioner ABS-CBN Broadcasting Corporation (ABS-CBN) is engaged in the

broadcasting business and owns a network of television and radio stations, whose
operations revolve around the broadcast, transmission, and relay of
telecommunication signals. The respondents Nazareno, Gerzon, Deiparine, and
Lerasan as production assistants (PAs) on different dates were employed by the
Petitioner, assigned at the news and public affairs, for various radio programs in the
Cebu Broadcasting Station, with a monthly compensation of P4,000. They were
issued ABS-CBN employees identification cards and were required to work for a
minimum of eight hours a day, including Sundays and holidays. They were under
the control and supervision of Assistant Station Manager Dante J. Luzon, and News
Manager Leo Lastimosa.

On December 19, 1996, petitioner and the ABS-CBN Rank-and-File Employees

executed a Collective Bargaining Agreement (CBA) to be effective during the period
from December 11, 1996 to December 11, 1999. However, since petitioner refused
to recognize PAs as part of the bargaining unit, respondents were not included to
the CBA.

On October 12, 2000, respondents filed a Complaint for Recognition of Regular

Employment Status, Underpayment of Overtime Pay, Holiday Pay, Premium Pay,
Service Incentive Pay, Sick Leave Pay, and 13th Month Pay with Damages against
the petitioner before the NLRC. The Labor Arbiter directed the parties to submit
their respective position paper however they failed to file their position papers
within the reglementary period, Labor Arbiter Jose G. Gutierrez dismissed the
complaint without prejudice for lack of interest to pursue the case. Respondents
received a copy of the Order on May 16, 2001. Instead of re-filing their complaint
with the NLRC within 10 days from May 16, 2001, they filed, on June 11, 2001, an
Earnest Motion to Refile Complaint with Motion to Admit Position Paper and Motion
to Submit Case for Resolution. The Labor Arbiter granted this motion in an Order
dated June 18, 2001, and forthwith admitted the position paper of the complainants.

On July 30, 2001, the Labor Arbiter rendered judgment in favor of the respondents,
and declared that they were regular employees of petitioner; as such, they were
awarded monetary benefits. On appeal to the NLRC, it ruled that respondents were
entitled to the benefits under the CBA because they were regular employees who
contributed to the profits of petitioner through their labor. Petitioner thus filed a
petition for certiorari under Rule 65 of the Rules of Court before the CA, raising both
procedural and substantive issues. CA Affirmed the ruling of the NLRC.

ISSUE

Whether the appellate court committed palpable and serious error of law when it
affirmed the rulings of the NLRC, and entertained respondents appeal from the
decision of the Labor Arbiter despite the admitted lapse of the reglementary period
within which to perfect the appeal.

HELD

We agree with petitioners contention that the perfection of an appeal within the
statutory or reglementary period is not only mandatory, but also jurisdictional;
failure to do so renders the assailed decision final and executory and deprives the
appellate court or body of the legal authority to alter the final judgment, much less
entertain the appeal. However, this Court has time and again ruled that in
exceptional cases, a belated appeal may be given due course if greater injustice
may occur if an appeal is not given due course than if the reglementary period to
appeal were strictly followed. The Court resorted to this extraordinary measure even
at the expense of sacrificing order and efficiency if only to serve the greater
principles of substantial justice and equity.

In the case at bar, the NLRC did not commit a grave abuse of its discretion in giving
Article 223 of the Labor Code a liberal application to prevent the miscarriage of
justice. Technicality should not be allowed to stand in the way of equitably and
completely resolving the rights and obligations of the parties. We have held in a
catena of cases that technical rules are not binding in labor cases and are not to be
applied strictly if the result would be detrimental to the workingman.
FABELA vs SAN MIGUEL CORPORATION Case Digest
[G.R. No. 150658 February 9, 2007]

NOELITO FABELA, MARCELO DELA CRUZ III, ROGELIO LASAT, HENRY

MALIWANAG, MANUEL DELOS SANTOS, and ROMMEL QUINES, Petitioners, vs.
SAN MIGUEL CORPORATION and ARMAN HICARTE, Respondents.

FACTS: Petitioners were hired by respondent San Miguel Corporation (SMC) as Relief
Salesmen for the Greater Manila Area (GMA) under separate but almost similarly
worded Contracts of Employment with Fixed Period. After having entered into
successive contracts of the same nature with SMC, the services of petitioners were
terminated after SMC no longer agreed to forge another contract with them.

Respondent SMC claimed that the hiring of petitioners was not intended to be
permanent, as the same was merely occasioned by the need to fill in a vacuum arising
from SMCs gradual transition to a new system of selling and delivering its products.
Respondents explained that SMC previously operated under the Route System, but
began implementing in 1993 the Pre-Selling System in which the salesmen under the
earlier system would be replaced by Accounts Specialists which called for upgraded
qualifications. While some of the qualified regular salesmen were readily upgraded to
the position of Accounts Specialist, respondents claimed that SMC still had to sell its
beer products using the conventional routing system during the transition stage, thus
giving rise to the need for temporary employees; and the members of the regular Route
Crew then existing were required to undergo a training program to determine whether
they possessed or could be trained for the necessary attitude and aptitude required of
an Accounts Specialist, hence, the hiring of petitioners and others for a fixed period, co-
terminus with the completion of the transition period and Training Program for all
prospective Accounts Specialists.

Claiming that they were illegally dismissed, petitioners filed complaints for illegal
dismissal against respondents.

ISSUE: Whether or not petitioners were validly hired for a fixed period.

HELD: The SC held that under article 280 of the Labor Code, there are two kinds of
regular employees, namely: (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. Article 280 also
recognizes project employees, those whose employment has been fixed for a specific
project or undertaking.

Project employment is distinct from casual employment referred to in the second

paragraph of Article 280 for the proviso that any employee who has rendered at least
one year of service . . . shall be considered a regular employee does not apply to
project employees, but only to casual employees. Although Article 280 does not
expressly recognize employment for a fixed period, which is distinct from employment
which has been fixed for a specific project or undertaking, it has been clarified that
employment for a fixed period is not in itself illegal. Even if the duties of an employee
consist of activities usually necessary or desirable in the usual business of the
employer, it does not necessarily follow that the parties are forbidden from agreeing on
a period of time for the performance of such activities through a contract of employment
for a fixed term.

Unfortunately, respondents contention that there are fixed periods stated in the
contracts of employment does not lie. Brent instructs that a contract of employment
stipulating a fixed-term, even if clear as regards the existence of a period, is invalid if it
can be shown that the same was executed with the intention of circumventing security
of tenure, and should thus be ignored.

Indeed, substantial evidence exists in the present case showing that the subject
contracts were utilized to deprive petitioners of their security of tenure.The contract of
employment of petitioner Fabela, for instance, states that the transition period from the
Route System to the Pre-Selling System would be twelve (12) months from April 4,
1995. It bears noting, however, that petitioner Fabela, besides being hired again for
another fixed period of four (4) months after the lapse in April 1996 of the one-year
contract, had already been working for respondent SMC on a fixed-term basis as early
as 1992, or one year before respondent SMC even began its shift to the Pre-selling
System in 1993.

Thus, there is sufficient basis to believe that the shift of SMC to the Pre-Selling System
was not the real basis for the forging of fixed-term contracts of employment with
petitioners and that the periods were fixed only as a means to preclude petitioners from
acquiring security of tenure.

A fixed-term employment is valid only under certain circumstances, such as when the
employee himself insists upon the period, or where the nature of the engagement is
such that, without being seasonal or for a specific project, a definite date of termination
is a sine qua non.

Petition is granted.
G.R. No. 70705 August 21, 1989

MOISES DE LEON, petitioner,

vs.

NATIONAL LABOR RELATIONS COMMISSION and LA TONDEA INC., respondents.

Facts:

Petitioner was employed by private respondent La Tonde;a Inc. on December 11,

1981, at the Maintenance Section of its Engineering Department in Tondo, Manila.
His work consisted mainly of painting company building and equipment, and other
odd jobs relating to maintenance. He was paid on a daily basis through petty cash
vouchers.

In the early part of January, 1983, after a service of more than one (1) year,
petitioner requested from respondent company that he be included in the payroll of
regular workers, instead of being paid through petty cash vouchers. Private
respondent's response to this request was to dismiss petitioner from his
employment on January 16, 1983. Having been refused reinstatement despite
repeated demands, petitioner filed a complaint for illegal dismissal, reinstatement
and payment of backwages before the Office of the Labor Arbiter of the then
Ministry now Department of Labor and Employment.

Petitioner alleged that he was dismissed following his request to be treated as a

regular employee; that his work consisted of painting company buildings and
maintenance chores like cleaning and operating company equipment, assisting
Emiliano Tanque Jr., a regular maintenance man; and that weeks after his dismissal,
he was re-hired by the respondent company indirectly through the Vitas-Magsaysay
Village Livelihood Council, a labor agency of respondent company, and was made
to perform the tasks which he used to do. Emiliano Tanque Jr. corroborated these
averments of petitioner in his affidavit. On the other hand, private respondent
claimed that petitioner was not a regular employee but only a casual worker hired
allegedly only to paint a certain building in the company premises, and that his
work as a painter terminated upon the completion of the painting job.

Issue:

Whether or not a casual employee who perform odd jobs from time to time as
assigned aside from the performing his original task in for being employed for more
one year can be considered as regular employee?
Held:

The Court held, the law on the matter is Article 281 of the Labor Code which
defines regular and casual employment as follows:

Art. 281. Regular and casual employment. The provisions of a written agreement to
the contrary notwithstanding and regardless of the oral agreements 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 actually exists.

This provision reinforces the Constitutional mandate to protect the interest of labor.
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,
contrary agreements notwithstanding, 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. Not considered regular are the so-called "project
employment" the completion or termination of which is more or less determinable
at the time of employment, such as those employed in connection with a particular
construction project and seasonal employment which by its nature is only desirable
for a limited period of time. However, any employee who has rendered at least one
year of service, whether continuous or intermittent, is deemed regular with respect
to the activity he performed and while such activity actually exists.

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. The test is whether the
former 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. Also, 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 if 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.

In the case at bar, the respondent company, which is engaged in the business of
manufacture and distillery of wines and liquors, claims that petitioner was
contracted on a casual basis specifically to paint a certain company building and
that its completion rendered petitioner's employment terminated. This may have
been true at the beginning, and had it been shown that petitioner's activity was
exclusively limited to painting that certain building, respondent company's theory of
casual employment would have been worthy of consideration.

However, during petitioner's period of employment, the records reveal that the
tasks assigned to him included not only painting of company buildings, equipment
and tools but also cleaning and oiling machines, even operating a drilling machine,
and other odd jobs assigned to him when he had no painting job. A regular
employee of respondent company, Emiliano Tanque Jr., attested in his affidavit that
petitioner worked with him as a maintenance man when there was no painting job.

Therefore, all things considered, the petitioners status of employment became

regular hence private respondent is ordered to reinstate petitioner as a regular
maintenance man and to pay petitioner backwages, ECOLA, and 13th Month Pay.
HACIENDA FATIMA vs. NATIONAL FEDERATION OF SUGARCANE WORKERS-FOOD AND
GENERAL TRADE [G.R. No. 149440. January 28, 2003]

Facts:

Respondent union was certified as the collective bargaining representative in the certification elections,
petitioner under the pretext that the result was on appeal, refused to sit down with the union for the
purpose of entering into a collective bargaining agreement. Moreover, the workers were not given work for
more than one month. In protest, complainants staged a strike which was however settled upon the
signing of a Memorandum of Agreement.

Later the company alleged that the complainants failed to load the fifteen wagons so it reneged on its
commitment to sit down and bargain collectively. Instead, it employed all means including the use of
private armed guards to prevent the organizers from entering the premises.Moreover, starting September
1991, respondents did not any more give work assignments to the complainants forcing the union to
stage a strike on January 2, 1992.But due to the conciliation efforts by the DOLE, another Memorandum
of Agreement was signed by the complainants and respondents which states that in case conflict or
disagreement arises in the determination of the status of the particular hacienda workers, it shall be
submitted to voluntary arbitration. The company reinstated the workers upon availability of work except
for Rombo, Ramona Rombo, BobongAbrega, and Boboy Silva who were not recognized as company
employees because they are seasonal workers accordingly.

When petitioner company again reneged on its commitment; complainants filed a complaint before the
Labor Arbiter.The company in its defense accused the workers of 'refusing to work and being choosy in
the kind of work they have to perform. Labor Arbiter decided in favor of company but when it was
appealed to NLRC it was reversed and set aside. It was escalated to CA which likewise concurred with
NLRC. It rendered a decision considering the 4 seasonal workers as employees of the company who are
entitled to security of tenure. It then found company guilty of illegal dismissal or ULP.

Issue:

Whether or not the seasonal workers are considered regular employees from the definition under Article
280.

Held:

Yes. For respondents to be excluded from those classified as regular employees, it is not enough that
they perform work or services that are seasonal in nature. They must have also been employed only for
the duration of one season. The evidence proves the existence of the first, but not of the second,
condition. The fact that respondents with the exception of Luisa Rombo, Ramona Rombo,
BobongAbriga and Boboy Silva repeatedly worked as sugarcane workers for petitioners for several
years is not denied by the latter. Evidently, petitioners employed respondents for more than one season.
Therefore, the general rule of regular employment is applicable.

"Art. 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 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 exist."
CONTI VS NLRC
FACTS:
Petitioner Amor Conti was employed by respondent Corfarm as cashier. Petitioner
Leopoldo Cruz was employed by the same respondent corporation as a
warehouseman. Both Conti and Cruz were subsequently promoted to the positions
of Head of Commissary and Store Supervisor, respectively. In their respective
employment contracts with Corfarm, it was stipulated that their employment shall
be coterminous with the effectivity of the contract executed by and
between Corfarm and MERALCO for the management of the latter's commissary.
Said management contract expired. However, Corfarm continued to operate
the MERALCO commissary despite the non-renewal of said contract.

Petitioners received a memorandum from private respondents terminating their

services effective allegedly for two reasons: 1) the expiration of their employment
contracts and; 2) the on-going evaluation of their past performances, and
investigation of the internal auditor of Corfarm of certain anomalous transactions
involving them (petitioners).

Petitioners filed with the arbitration branch of the NLRC a complaint for illegal
dismissal against private respondents. The Labor rendered a decision declaring the
complainants to have been illegally dismissed and the respondents ordered to
reinstate them immediately to their former or substantially equivalent positions so
ordered. Private respondents appealed. The NLRC promulgated a decision setting
aside the labor arbiter's order and dismissing herein petitioners' complaint for lack
of merit. Petitioners filed a motion for reconsideration of the NLRC decision, which
motion was denied.

ISSUE:
-WON NLRC gravely abused its discretion in reversing the labor arbiter's decision
finding the petitioners' dismissal to have been illegal for lack of due notice and
hearing as required by law.

-WON petitioners are considered regular employers.

HELD:
-YES. The settled rule is that factual findings of labor officials are conclusive and
binding on the Supreme Court when supported by substantial evidence. Here, the
labor arbiter relied not only on documentary evidence, but on the testimonies of
witnesses taken during the formal hearings; and since he had the advantage of
personally observing the deportment of witnesses while they were testifying, his
findings thereon should not only be accorded great respect, but also given the
stamp of finality absent any arbitrariness in the process of their deduction from the
evidence adduced.

-YES. Petitioners had been employed with private respondent Corfarm since
1991. They had been discharging their functions as head of commissary and store
supervisor, respectively, for more than one (1) year. Under the law therefore, they
are deemed regular employees and thus entitled to security of tenure, as provided
in Article 279 of the Labor Code:
Art. 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.
Under the above provision, the private respondents may not terminate the services
of petitioners except for just cause or when authorized under the Labor Code. This
Court has held that it is not difficult to see that to uphold, in all cases, the
contractual arrangement between the employer and the employee would in effect
be to permit employers to avoid the necessity of hiring regular or permanent
employees indefinitely, by hiring them on a temporary or casual status, thus
denying them security of tenure in their jobs.
CASUAL EMPLOYEES: GR 154072 PAGUIO vs. PLDT

Title:

ALFREDO S. PAGUIO, petitioner,

vs.
PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., ENRIQUE D. PEREZ,
RICARDO P. ZARATE, ISABELO FERIDO, and RODOLFO R. SANTOS, respondents.

Citation: G.R. No. 154072 December 3, 2002

Facts:

Petitioner Alfredo S. Paguio (Paguio) was appointed Head of PLDTs oldest plant, Garnet Exchange. He reported to one
of the respondents, Rodolfo R. Santos (Santos). PLDT implemented a performance assessment program among its
division. Paguio criticized this performance ranking because a division with a newly-installed facility has less trouble and
requires less manpower than an old facility, as a result of which divisions operating on newly installed facilities would
appear to have performed better than divisions with old facilities, thereby causing inequality between these two in their
performance rating. Santos reassigned Paguio to a position in the Head Office for Special Assignments, to which the latter
protested. Ferido, another respondent, affirmed the action of Santos transferring Paguio to any group in the company that
may need his services. Ferido further indicated that the reassignment is based on the conclusion that Paguio was not a team
player and cannot accept decisions of management already arrived at, short of insubordination. Perez (another respondent)
affirmed the action taken by respondent Ferido and explained to Paguio that his transfer was not in the nature of a
disciplinary action that required compliance with the process of "investigation, confrontation, and evaluation" before it can
be implemented and that the same was not done in bad faith. As a result, Paguio filed a complaint for illegal demotion and
damages. The Labor Arbiter dismissed the complaint on the ground that petitioners transfer was an exercise of a
management prerogative and there was no showing that the same amounted to a demotion in rank and privileges. The LA
pointed out that in the operation of its business, PLDT possessed the prerogative to move around its employees in such
manner as the company might deem beneficial to its business, subject to the limitation that such action be in good faith.
Paguio contended that by his transfer, he had suffered a demotion in rank and privileges. However, the LA found that
Paguio maintained his previous salary and status as Manager. The LA further ruled that in regard to salary increases, even
in his previous position, Paguio did not have any demandable right thereto as the same was, as he himself admitted,
dependent on the general standards of performance and efficiency.

Issues:

a Whether or not Paguios transfer on the ground of his oppositions on company business decisions is valid.

b Whether or not his transfer involves a diminution of his salary, benefits and other privileges.

Held:

a No. The ground, that Mr. Paguios opposition to company business decision in his submitted Comment on the
performance rating of his division, is not just. The truth of the matter is that he was just presenting in good faith
his criticism on the way the performance of his division was rated and ranked. His purpose in doing so was just
to help his team see its deficiencies and point the way to improvement. Thus, he was then building teammanship,
not destroying it.

b Yes. His transfer involves a diminution of his salary, benefits and other privileges because on account of his
transfer, he was assigned a functionless position. While it is true that Paguios re-assignment did not involve a
diminution of salary, however, he was actually placed on a "frozen status," as he was assigned to a functionless
position, with no office and staff, and without any opportunity to get any promotion or wage increase as he does
not have any performance to speak of because there is no work assigned to him.
Baguio Country Club vs. NLRC and Jimmy Calamba

FACTS:

Petitioner Baguio Country Club Corporation (corporation) is a recreational establishment

certified by the Ministry of Labor and Employment as an" entertainment-service"
establishment. Private respondent Jimmy Calamba is employed by the corporation on a
day to day basis in various capacities as laborer and dishwasher for a period of ten (10)
months from October 1, 1979 to July 24, 1980. On September 1, 1980 to October 1, 1980,
private respondent Calamba was hired as a gardener and rehired as such on November 15,
1980 to January 4, 1981 when he was dismissed by the petitioner corporation.On August 3,
1981, private Calamba assisted by private respondent union instituted a complaint against
petitioner corporation with the Ministry of Labor, Baguio District Office, Baguio City for unfair
labor practice, illegal dismissal and non-payment of 13th month pay for 1979 and 1980.

The Executive Labor Arbiter Sotero L. Tumang rendered a decision on declaring private
respondent Calamba as a regular employee and ordering petitioner to reinstate private
respondent to the position of gardener without loss of seniority and with full backwages,
benefits and privileges from the time of his dismissal up to reinstatement including 13th
month pay.

Petitioner appealed to NLRC arguing that private respondent Calamba was a contractual
employee whose employment was for a fixed and specific period as set forth and evidenced
by the private respondent's contracts of employment. Employment contract states that his
employment is on a day to day basis for a temporary period and he can be terminated
anytime by the Petitioner corporation.

NLRC decided that respondent Calamba is a regular employee at the time he was
terminated , having rendered services as laborer, gardener and dishwasher for more than
one (1) year and that the nature of his job is necessary or desirable in the usual business of
petitioner as a recreational establishment.

ISSUE:

Whether or not the private respondent Jimmy Calamba has acquired the status of a regular
employee at the time his employment was terminated.

HELD:

Yes. The private respondent was repeatedly re-hired to perform tasks ranging from
dishwashing and gardening, aside from performing maintenance work.Such repeated
rehiring and the continuing need for his service are sufficient evidence of the necessity and
indispensability of his service to the petitioner's business or trade.Furthermore, the private
respondent performed the said tasks which lasted for more than one year, until early
January, 1981 when he was terminated. Certainly, by this fact alone he is entitled by law to
be considered a regular employee.
It is noteworthy that what determines whether a certain employment is regular or casual is
not the will and word of the employer, to which the desperate worker often accedes. It is the
nature of the activities performed in relation to the particular business or trade considering
all circumstances, and in some cases the length of time of its performance and its continued
existence.

G.R. No. 116781. September 5, 1997

TOMAS LAO CONSTRUCTION, LVM CONSTRUCTION CORPORATION, THOMAS and
JAMES DEVELOPERS (PHIL.), INC., petitioners, vs. NATIONAL LABOR RELATIONS
COMMISSION, MARIO O. LABENDIA, SR., ROBERTO LABENDIA, NARCISO ADAN,
FLORENCIO GOMEZ, ERNESTO BAGATSOLON, SALVADOR BABON, PATERNO
BISNAR, CIPRIANO BERNALES, ANGEL MABULAY, SR., LEO SURIGAO, and ROQUE
MORILLO, respondents.
FACTS
TLC, T&J and LVM are engaged in the construction of public roads and
bridges. Under joint venture agreements they entered into among each other, they would
undertake their projects either simultaneously or successively so that, whenever necessary,
they would lease tools and equipment to one another. Each one would also allow the
utilization of their employees by the other two. With this arrangement, workers were
transferred whenever necessary to on-going projects of the same company or of the others,
or were rehired after the completion of the project or project phase to which they were
assigned. Soon after, however, TLC ceased its operations while T&J and LVM stayed on.
Andres Lao, Managing Director of LVM and President of T&J, issued a
memorandum requiring all workers and company personnel to sign employment
contract forms and clearances which were issued on 1 July 1989 but antedated 10
January 1989. These were to be used allegedly for audit purposes pursuant to a joint
venture agreement between LVM and T&J. To ensure compliance with the directive, the
company ordered the withholding of the salary of any employee who refused to
sign. Quite notably, the contracts expressly described the construction workers
as project employees whose employments were for a definite period.
Except for Florencio Gomez, all private respondents refused to sign contending
that this scheme was designed by their employer to downgrade their status from regular
employees to mere project employees. Resultantly, their salaries were withheld. They
were also required to explain why their services should not be terminated for violating
company rules and warned that failure to satisfactorily explain would be construed as
disinterest in continued employment with the company. Since the workers stood firm
in their refusal to comply with the directives their services were terminated.
ISSUE
Whether or not the dismissed workers are considered regular workers of the
company.
RULING OF THE SUPREME COURT
The principal test in determining whether particular employees are project
employees distinguished from regular employees is whether the project employees are
assigned to carry out specific project or undertaking, the duration (and scope) of which are
specified at the time the employees are engaged for the project. Project in the realm of
business and industry refers to a particular job or undertaking that is within the regular or
usual business of employer, but which is distinct and separate and identifiable as such from
the undertakings of the company. Such job or undertaking begins and ends at determined
or determinable times.
While it may be allowed that in the instant case the workers were initially hired for
specific projects or undertakings of the company and hence can be classified as project
employees, the repeated re-hiring and the continuing need for their services over a long
span of time (the shortest, at seven [7] years) have undeniably made them regular
employees. Thus, we held that where the employment of project employees is extended
long after the supposed project has been finished, the employees are removed from the
scope of project employees and considered regular employees.
While length of time may not be a controlling test for project employment, it can
be a strong factor in determining whether the employee was hired for a specific
undertaking or in fact tasked to perform functions which are vital, necessary and
indispensable to the usual business or trade of the employer. In the case at bar, private
respondents had already gone through the status of project employees. But their
employments became non-coterminous with specific projects when they started to be
continuously re-hired due to the demands of petitioners business and were re-engaged
for many more projects without interruption.
The petition is DENIED.
Topic: Labor Law; Regular Employees; Fixed-Term Contracts; It does not
necessarily follow that where the duties cf the employee consist of
activities usually necessary or desirable in the usual business of the
employer, the parties are forbidden from agreeing on a period of time
for the performance of such activitiesthere is nothing essentially
contradictory between a definite period of employment and the nature
of the employees duties;

A contractual stipulation providing for a fixed term of nine (9)

months, not being contrary to law, morals, good customs, public order
and public policy, is valid, binding and must be respected.

Schools and Universities; Private teachers art subject to special

rules with respect to requisites for their permanent employment and
security of tenure.

ST. THERESAS SCHOOL OF NOVALICHES FOUNDATION and ADORACION

ROXAS, petitioners, vs.

NATIONAL LABOR RELATIONS COMMISSION and ESTHER REYES,

respondents.

NATURE: Petition for Certiorari to modify the decision of the NLRC in

concluding that the dismissal of Esther Reyes is valid and is entitled to her
backwages.

FACTS: Petitioner Adoracion Roxas is the president of St. Theresa's School of

Novaliches Foundation. She hired Esther Reyes, on a contract basis, for the span
of 9 months (from June 1, 1991 to March 31, 1992). Esther went on leave on the
month of February, which was duly approved, but to her surprise by the time
she came back she found out that her table, chair, and other belongings were
moved to a corner of their office, and she was replaced by Annie Roxas,
daughter of petitioner Adoracion Roxas.

Statement of the case: Due to this factual scenario, Esther filed with the
NLRC 2nd division, a complaint for "unfair labor practice based on harrassment,
illegal dismissal, 13th month pay, allowances, removal of desk and chair form
place of work, and refusal to communicate, moral and exemplary damages."
 On due proceedings, the Labor Arbiter declared the dismissal illegal and
ordered the reinstatement of the employee and the right to have full backwages
from the time of dismissal.

On Appeal to NLRC NCR, it reversed the decision of the LA and declared the
separation of Esther Reyes from service legal and valid.

Due to the failure of Esther to file a timely appeal, the decision of NLRC NCR
reached its finality.

ISSUE: What are the instances to be considered for an employee to be

considered as merely contractual?

HELD: Article 280 of the Labor Code does not proscribe or prohibit an
employment contract with a fixed period provided the same is entered into by
the parties, without any force, duress or improper pressure being brought to
bear upon the employee and absent any other circumstance vitiating consent. It
does not necessarily follow that where the duties of the employee consist of
activities usually necessary or desirable in the usual business of the employer,
the parties are forbidden from agreeing on a period of time for the performance
of such activities. There is thus nothing essentially contradictory between a
definite period of employment and the nature of the employee's duties.

It goes without saying that contracts or employment govern the relationship of

the parties. In this case, private respondent's contract provided for a fixed term
of nine (9) months, from June 1, 1991 to March 31, 1992. Such stipulation, not
being contrary to law, morals, good customs, public order and public policy, is
valid, binding and must be respected.

It bears stressing that private teachers are subject to special rules with respect
to requisites for their permanent employment and security of tenure, to wit:

1. He must be a full time teacher;

2. He must have rendered at least three consecutive years of service: and,

3. Such service must be satisfactory.

This is in accord with the Manual of Regulations for Private Schools issued by the
then Department of Education.

DISPOSITIVE PORTION: WHEREFORE, the Petition is GRANTED; the Decision of

the respondent NLRC rendered on November 29, 1995 in NLRC NCR Case No. 00-
6078-94 is hereby MODIFIED by deleting therefrom the award of backwages in
question.
ZEL T. ZAFRA and EDWIN B. ECARMA, petitioners, vs. HON. COURT OF APPEALS,
PHILIPPINE LONG DISTANCE TELEPHONE CO., INC., AUGUSTO COTELO, and
ERIBERTO MELLIZA, respondents.

G.R. No. 139013. September 17, 2002

Zel T. Zafra was hired by PLDT on October 1, 1984 as Operations Analyst II while
Edwin B. Ecarma was hired as Junior Operations Analyst I. In March 1995, petitioners
were chosen for the OMC Specialist and System Software Acceptance Training
Program in Germany in preparation for ALCATEL 1000 S12, a World Bank-financed
PLDT project in line with its Zero Backlog Program. ALCATEL, the foreign supplier,
shouldered the cost of their training and travel expenses. Petitioners left for Germany
on April 10, 1995 and stayed there until July 21, 1995.

On July 12, 1995, while petitioners were in Germany, Mr. R. Relucio, SwitchNet
Division Manager, requested advice, through an inter-office memorandum, from the
Cebu and Davao Provincial Managers if any of the training participants were interested
to transfer to the Sampaloc ROMCC to address the operational requirements
therein. The transfer was to be made before the ALCATEL exchanges and operations
and maintenance center in Sampaloc would become operational.

Upon petitioners return from Germany, a certain Mr. W.P. Acantillado, Senior
Manager of the PLDT Cebu Plant, informed them about the memorandum. They balked
at the idea, but PLDT, through an inter-office memorandum dated December 21, 1995,
proceeded to transfer petitioners to the Sampaloc ROMCC effective January 3, 1996.

ISSUE:

Whether the employees transfer is an absolute right for the employers.

RULING:

The fact that petitioners, in their application for employment, agreed to be

transferred or assigned to any branch should not be taken in isolation, but rather in
conjunction with the established company practice in PLDT. The standard operating
procedure in PLDT is to inform personnel regarding the nature and location of their
future assignments after training abroad. The need for the dissemination of notice of
transfer to employees before sending them abroad for training should be deemed
necessary and later to have ripened into a company practice or policy that could no
longer be peremptorily withdrawn, discontinued, or eliminated by the employer.

Needless to say, had they known about their pre-planned reassignments, petitioners
could have declined the foreign training intended for personnel assigned to the Manila
office. The lure of a foreign trip is fleeting while a reassignment from Cebu to Manila
entails major and permanent readjustments for petitioners and their families.

We are not unaware that the transfer of an employee ordinarily lies within the ambit
of management prerogatives. However, a transfer amounts to constructive dismissal
when the transfer is unreasonable, inconvenient, or prejudicial to the employee, and
involves a demotion in rank or diminution of salaries, benefits, and other privileges. In
the present case, petitioners were unceremoniously transferred, necessitating their
families relocation from Cebu to Manila. This act of management appears to be
arbitrary without the usual notice that should have been done even prior to their training
abroad. From the employees viewpoint, such actions affecting their families are
burdensome, economically and emotionally. It is no exaggeration to say that their
forced transfer is not only unreasonable, inconvenient, and prejudicial, but to our mind,
also in defiance of basic due process and fair play in employment relations.