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COURT should not have required her to re-apply to teach. In accordance with the written statement of
OF APPEALS; HON.NATIONAL LABOR RELATIONS COMMISSION; HON. policies dated 12 March 1993, only probationary teachers are required by the petitioners to re-
COMMISSIONER VICTORIANO R. CALAYLAY, HON.PRESIDING COMMISSIONER RAUL apply in March. Failure of probationary teachers to re-apply in March is an indication of their
T. AQUINO, and HON. COMMISSIONER ANGELITA A. GACUTAN; and lack of interest to teach again at the school. Petitioners’ invocation of the third policy –that of
MS. DIANA P. BELO, respondents. giving teaching assignments to probationary teachers in April to justify their refusal to provide
G.R. No. 152988 August 24, 2004 Ms. Belo a teaching load is, therefore, a lame excuse that rings of untruth and
dishonesty. Patently clear is the illegal manner by which the petitioners eased out Ms. Belo
FACTS: from the teaching corps.

Private respondent Belo was employed as a permanent teacher by petitioner CKSC for 15
years. Belo had to take a leave of absence for the S.Y. 1992. In 1993 due to personal reasons.
Petitioner informed her that they could not guarantee her a teaching load when she would
return and that only teachers in service may enjoy the privilege and benefits provided by the
school. When she signified her intention to return to teach for the S.Y. 1993-1994, petitioner
reasoned that it already hired non-permanent teachers to take her load.

The Labor Arbiter reasoned that she was not dismissed but there was simply no available
teaching load for her. The NLRC reversed the LA’s decision and ordered her reinstatement
with full back wages. The Court of Appeals declared that Belo was constructively dismissed;
the dismissal, illegal, for being violative of her security of tenure.


Whether private respondent was constructively dismissed and therefore entitled to

reinstatement and back wages


It must be noted at the outset that Ms. Belo had been a full-time teacher in petitioner CKSC
continuously for fifteen years or since 1977 until she took a leave of absence for the school
year 1992-1993. Under the Manual of Regulations for Private Schools, for a private school
teacher to acquire a permanent status of employment and, therefore, be entitled to a security
of tenure, the following requisites must concur: (a) the teacher is a full-time teacher; (b) the
teacher must have rendered three consecutive years of service; and (c) such service must
have been satisfactory. Since Ms. Belo has measured up to these standards, she therefore
enjoys security of tenure. The fundamental guarantees of security of tenure and due process
dictate that no worker shall be dismissed except for just and authorized cause provided by law
and after due notice and hearing. Case law defines constructive dismissal as a cessation from
work because continued employment is rendered impossible, unreasonable, or unlikely; when
there is a demotion in rank or a diminution in pay or both; or when a clear discrimination,
insensibility, or disdain by an employer becomes unbearable to the employee. It, therefore,
blows our mind why the petitioners would require Ms. Belo, a permanent teacher since1977
with a satisfactory service record, to signify her intention to teach in March 1993. Plainly, the
petitioners violated their avowed policies. Since Ms. Belo was not retiring, resigning or filing
another leave of absence after the school year 1992-1993, the petitioners should have
considered her as consenting to teach for the incoming school year 1993-1994. In fact, they
PANGILINAN vs GENERAL MILLING CORPORATION contradictory between a definite period of employment and the nature of the employee’s
FACTS: The respondent General Milling Corporation is a domestic corporation engaged in the
production and sale of livestock and poultry. It is, likewise, the distributor of dressed chicken to Stipulations in employment contracts providing for term employment or fixed period
various restaurants and establishments nationwide. As such, it employs hundreds of employment are valid when the period were agreed upon knowingly and voluntarily by the
employees, some on a regular basis and others on a casual basis, as “emergency workers.” parties without force, duress or improper pressure, being brought to bear upon the employee
The petitioners were employed by the respondent on different dates as emergency workers at and absent any other circumstances vitiating his consent, or where it satisfactorily appears that
its poultry plant in Cainta, Rizal, under separate “temporary/casual contracts of employment” the employer and employee dealt with each other on more or less equal terms with no moral
for a period of five months. Most of them worked as chicken dressers, while the others served dominance whatever being exercised by the former over the latter. An examination of the
as packers or helpers. Upon the expiration of their respective contracts, their services were contracts entered into by the petitioners showed that their employment was limited to a fixed
terminated. They later filed separate complaints for illegal dismissal and non-payment of period, usually five or six months, and did not go beyond such period. The records reveal that
holiday pay, 13th month pay, night-shift differential and service incentive leave pay against the the stipulations in the employment contracts were knowingly and voluntarily agreed to by the
respondent before the Arbitration Branch of the National Labor Relations Commission. petitioners without force, duress or improper pressure, or any circumstances that vitiated their
consent. Similarly, nothing therein shows that these contracts were used as a subterfuge by
The petitioners alleged that their work as chicken dressers was necessary and desirable in the the respondent GMC to evade the provisions of Articles 279 and 280 of the Labor Code.
usual business of the respondent, and added that although they worked from 10:00 p.m. to
6:00 a.m., they were not paid night-shift differential. They stressed that based on the nature of The petitioners were hired as “emergency workers” and assigned as chicken dressers, packers
their work, they were regular employees of the respondent; hence, could not be dismissed from and helpers at the Cainta Processing Plant. While the petitioners’ employment as chicken
their employment unless for just cause and after due notice. They asserted that the respondent dressers is necessary and desirable in the usual business of the respondent, they were
GMC terminated their contract of employment without just cause and due notice. They further employed on a mere temporary basis, since their employment was limited to a fixed period. As
argued that the respondent could not rely on the nomenclature of their employment as such, they cannot be said to be regular employees, but are merely “contractual employees.”
“temporary or casual.” Consequently, there was no illegal dismissal when the petitioners’ services were terminated by
reason of the expiration of their contracts. Lack of notice of termination is of no consequence,
ISSUE: Whether or not the petitioners were regular employees of the respondent GMC when because when the contract specifies the period of its duration, it terminates on the expiration
their employment was terminated. of such period. A contract for employment for a definite period terminates by its own term at
the end of such period.
HELD: The SC held the petitioners were employees with a fixed period, and, as such, were not
regular employees. Article 280 of the Labor Code comprehends three kinds of employees: (a) Petition is denied.
regular employees or those whose work is necessary or desirable to the usual business of the
employer; (b) project employees or those 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 work or services to be performed is seasonal
in nature and the employment is for the duration of the season; and, (c) casual employees or
those who are neither regular nor project employees.

A regular employee is one who is engaged to perform activities which are necessary and
desirable in the usual business or trade of the employer as against those which are undertaken
for a specific project or are seasonal.[41] There are two separate instances whereby it can be
determined that an employment is regular: (1) if the particular activity performed by the
employee is necessary or desirable in the usual business or trade of the employer; and, (2) if
the employee has been performing the job for at least a year. Article 280 of the Labor Code
does not proscribe or prohibit an employment contract with a fixed period. 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
Magsalin et. al. V National Organization of Working men et. al. (Vitug, 2003) trade of petitioner company. The Court of Appeals has found each of respondents to have
worked for at least one year with petitioner company.
Coca-Cola Bottlers Phils., Inc., herein petitioner, engaged the services of respondent workers
as "sales route helpers" for a limited period of five months. While this Court, in Brent School, Inc. vs. Zamora, has upheld the legality of a fixed-term
employment, it has done so, however, with a stern admonition that where from the
After five months, respondent workers were employed by petitioner company on a day-to-day
circumstances it is apparent that the period has been imposed to preclude the acquisition of
basis. According to petitioner company, respondent workers were hired to substitute for regular
sales route helpers whenever the latter would be unavailable or when there would be an tenurial security by the employee, then it should be struck down as being contrary to law,
unexpected shortage of manpower in any of its work places or an unusually high volume of morals, good customs, public order and public policy. The pernicious practice of having
work. The practice was for the workers to wait every morning outside the gates of the sales employees, workers and laborers, engaged for a fixed period of few months, short of the normal
office of petitioner company. If thus hired, the workers would then be paid their wages at the six-month probationary period of employment, and, thereafter, to be hired on a day-to-day
end of the day.
basis, mocks the law. Any obvious circumvention of the law cannot be countenanced.
Ultimately, respondent workers asked petitioner company to extend to them regular
appointments. Petitioner company refused. Subsequently, the respondents filed with the NLRC The fact that respondent workers have agreed to be employed on such basis and to forego the
a complaint for the regularization of their employment with petitioner company. Claiming that protection given to them on their security of tenure, demonstrate nothing more than the serious
petitioner company meanwhile terminated their services, respondent workers filed a notice of
strike and a complaint for illegal dismissal and unfair labor practice with the NLRC. problem of impoverishment of so many of our people and the resulting unevenness between
labor and capital. A contract of employment is impressed with public interest. The provisions of
The parties, later on, agreed to submit the controversy, for voluntary arbitration but the VA applicable statutes are deemed written into the contract, and “the parties are not at liberty to
dismissed the complaint on the ground that the respondent workers were not employees of insulate themselves and their relationships from the impact of labor laws and regulations by
simply contracting with each other.”
CA reversed VA. Hence, appeal.
Petition is dismissed.
WON the nature of work is deemed necessary and desirable in the usual business or trade of
petitioner that could qualify them to be regular employees.

The SC ruled that he argument of petitioner that its usual business or trade is softdrink
manufacturing and that the work assigned to respondent workers as sales route helpers so
involves merely “postproduction activities,” one which is not indispensable in the manufacture
of its products, scarcely can be persuasive. If, as so argued by petitioner company, only those
whose work are directly involved in the production of softdrinks may be held performing
functions necessary and desirable in its usual business or trade, there would have then been
no need for it to even maintain regular truck sales route helpers. The nature of the work
performed must be viewed from a perspective of the business or trade in its entirety and not on
a confined scope.

The repeated rehiring of respondent workers and the continuing need for their services clearly
attest to the necessity or desirability of their services in the regular conduct of the business or
PAGUIO vs. NLRC the power of dismissal; and d) the presence or absence of the power to control the conduct
of the putative employee or the power to control the employee with respect to the means
Facts: or methods by which his work is to be accomplished.
 Metromedia Times Corporation entered, for the fifth time, into an agreement with petitioner  An indicum of regular employment, rightly taken into account by the labor arbiter, was the
Efren P. Paguio, appointing the latter to be an account executive of the firm. reservation by respondent Metromedia Times Corporation not only of the right to control
 Again, petitioner was to solicit advertisements for "The Manila Times," a newspaper of the results to be achieved but likewise the manner and the means used in reaching that
general circulation, published by respondent company. end. Metromedia Times Corporation exercised such control by requiring petitioner, among
 Petitioner, for his efforts, was to receive compensation consisting of a 15% commission on other things, to submit a daily sales activity report and also a monthly sales report as well.
direct advertisements less withholding tax and a 10% commission on agency Various solicitation letters would indeed show that Robina Gokongwei, company president,
advertisements based on gross revenues less agency commission and the corresponding Alda Iglesia, the advertising manager, and Frederick Go, the advertising director, directed
withholding tax. The commissions, released every fifteen days of each month, were to be and monitored the sales activities of petitioner.
given to petitioner only after the clients would have paid for the advertisements. Apart from  Article 280 of the Labor code defined a regular employee - is one who is engaged to perform
commissions, petitioner was also entitled to a monthly allowance of P2,000.00 as long as activities which are necessary and desirable in the usual business or trade of the employer
he met the P30,000.00-monthly quota. as against those which are undertaken for a specific project or are seasonal. Even in these
 Basically, the contentious points raised by the parties had something to do with the following latter cases, where such person has rendered at least one year of service, regardless of
stipulations of the agreement; viz: the nature of the activity performed or of whether it is continuous or intermittent, the
"12. You are not an employee of the Metromedia Times Corporation nor employment is considered regular as long as the activity exists, it not being indispensable
does the company have any obligations towards anyone you may employ, that he be first issued a regular appointment or be formally declared as such before
nor any responsibility for your operating expenses or for any liability you acquiring a regular status.
may incur. The only rights and obligations between us are those set forth in  That petitioner performed activities which were necessary and desirable to the business of
this agreement. This agreement cannot be amended or modified in any way the employer, and that the same went on for more than a year, could hardly be denied.
except with the duly authorized consent in writing of both parties. Petitioner was an account executive in soliciting advertisements, clearly necessary and
"13. Either party may terminate this agreement at any time by giving written desirable, for the survival and continued operation of the business of respondent
notice to the other, thirty (30) days prior to effectivity of termination." corporation. Robina Gokongwei, its President, herself admitted that the income generated
 Barely two months after the renewal of his contract, petitioner received a notice from from paid advertisements was the lifeblood of the newspaper's existence. Implicitly,
respondent firm informing him of the termination of his services. Apart from vague respondent corporation recognized petitioner's invaluable contribution to the business when
allegations of misconduct on which he was not given the opportunity to defend himself, i.e., it renewed, not just once but five times, its contract with petitioner.
pirating clients from his co-executives and failing to produce results, no definite cause for  Respondent company cannot seek refuge under the terms of the agreement it has entered
petitioner's termination was given. into with petitioner. The law, in defining their contractual relationship, does so, not
 Aggrieved, petitioner filed a case before the labor arbiter. The labor arbiter found for necessarily or exclusively upon the terms of their written or oral contract, but also on the
petitioner and declared his dismissal illegal. The arbiter ordered respondent Metromedia basis of the nature of the work petitioner has been called upon to perform. The law affords
Times Corporation and its officers to reinstate petitioner to his former position, without loss protection to an employee, and it will not countenance any attempt to subvert its spirit and
of seniority rights, and to pay him his commissions and other remuneration accruing from intent. A stipulation in an agreement can be ignored as and when it is utilized to deprive the
the date of dismissal up until his reinstatement. employee of his security of tenure. The sheer inequality that characterizes employer-
 On appeal, NLRC reversed the ruling of the labor arbiter and declared the contractual employee relations, where the scales generally tip against the employee, often scarcely
relationship between the parties as being for a fixed-term employment. provides him real and better options.
 Court of Appeals upheld in toto the findings of the commission.  A lawful dismissal must meet both substantive and procedural requirements; in fine, the
dismissal must be for a just or authorized cause and must comply with the rudimentary due
process of notice and hearing. It is not shown that respondent company has fully bothered
itself with either of these requirements in terminating the services of petitioner. The notice
What is the nature of the contractual relationship between petitioner and respondent company - was
of termination recites no valid or just cause for the dismissal of petitioner nor does it appear
it or was it not one of regular employment?
that he has been given an opportunity to be heard in his defense.


 A "regular employment," whether it is one or not, is aptly gauged from the concurrence, or
the non-concurrence, of the following factors - a) the manner of selection and engagement
of the putative employee, b) the mode of payment of wages, c) the presence or absence of
[G.R. No. 149859. June 9, 2004] on November 16, 1996. Thus, when he was dismissed on November 20, 1996, he was already
RADIN C. ALCIRA, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, a regular employee.
TRIFONA F. MAMARADLO, respondents. Petitioner's contention is incorrect. In CALS Poultry Supply Corporation, et al. vs. Roco, et al.,
this Court dealt with the same issue of whether an employment contract from May 16, 1995 to
FACTS: Respondent Middleby Philippines Corporation hired petitioner as engineering support November 15, 1995 was within or outside the six-month probationary period. We ruled that
services supervisor on a probationary basis for six months. Apparently unhappy with November 15, 1995 was still within the six-month probationary period. We reiterate our ruling
petitioner's performance, respondent Middleby terminated petitioner's services. The bone of in CALS Poultry Supply:
contention centered on whether the termination occurred before or after the six-month
probationary period of employment. Our computation of the 6-month probationary period is reckoned from the date of appointment
up to the same calendar date of the 6th month following. In short, since the number of days in
The parties, presenting their respective copies of Alcira's appointment paper, claimed each particular month was irrelevant, petitioner was still a probationary employee when
conflicting starting dates of employment: May 20, 1996 according to petitioner and May 27, respondent Middleby opted not to "regularize" him on November 20, 1996.
1996 according to respondent. Both documents indicated petitioner's employment status as
"probationary (6 mos.)" and a remark that "after five months (petitioner's) performance shall be Petition is denied.
evaluated and any adjustment in salary shall depend on (his) work performance."

Petitioner asserts that, on November 20, 1996, in the presence of his co-workers and
subordinates, a senior officer of respondent Middleby in bad faith withheld his time card and
did not allow him to work. Considering this as a dismissal "after the lapse of his probationary
employment," petitioner filed on November 21, 1996 a complaint in the National Labor
Relations Commission (NLRC) against respondent Middleby contending that he had already
become a regular employee as of the date he was illegally dismissed.

In their defense, respondents claim that, during petitioner's probationary employment, he

showed poor performance in his assigned tasks, incurred ten absences, was late several times
and violated company rules on the wearing of uniform. Since he failed to meet company
standards, petitioner's application to become a regular employee was disapproved and his
employment was terminated.

ISSUE: Whether or not petitioner attained regular employment in the private respondent’s

HELD: The SC ruled that under the terms of his contract, petitioner’s probationary employment
was only for five months as indicated by the remark "Please be informed that after five months,
your performance shall be evaluated and any adjustment in salary shall depend on your work
performance." The argument lacks merit. As correctly held by the labor arbiter, the appointment
contract also stated in another part thereof that petitioner's employment status was
"probationary (6 mos.)." The five-month period referred to the evaluation of his work.

Petitioner insists that he already attained the status of a regular employee when he was
dismissed on November 20, 1996 because, having started work on May 20, 1996, the six-
month probationary period ended on November 16, 1996. According to petitioner's
computation, since Article 13 of the Civil Code provides that one month is composed of thirty
days, six months total one hundred eighty days. As the appointment provided that petitioner's
status was "probationary (6 mos.)" without any specific date of termination, the 180th day fell


G.R. No. 146118. September 29, 2003


Samuel Samarca was employed as a laborer by Arc-Men Industries, Inc. On

September 26, 1993, petitioner filed an application for an emergency leave of absence on
account of his son’s hospitalization. Upon his return for work, petitioner was immediately served
with a notice of respondent’s order suspending him for 30 days.

Feeling aggrieved, petitioner filed a complaint for illegal suspension against respondent
and its owner. During the pendency of the complaint, petitioner’s 30-day suspension ended.
Consequently, respondent, in a letter, directed petitioner to report for work immediately.
However, he refused, prompting respondent to send him a Notice to Terminate, directing him
to submit, within 5 days, a written explanation why he should not be dismissed from the service
for abandonment of work.

For his part, petitioner submitted a letter-reply explaining that because of the pendency
of his complaint for illegal suspension with the Labor arbiter, he could not report for work.
Respondent, finding the petitioner’s written explanation insufficient, decided to terminate his
services via a Notice of Termination. Consequently, petitioner filed an amended complaint for
illegal dismissal.

Issue: Whether or not petitioner abandoned his work.


To constitute abandonment, two elements must concur: (1) The failure to report for
work or absence without valid or justifiable reason, and (2) a clear intention to sever the
employer-employee relationship manifested by some overt acts. Mere absence is not sufficient.
It is the employer who has the burden of proof to show a deliberate and justified refusal of the
employee to resume his employment without any intention of returning.

The above twin essential requirements for abandonment to exist are not present in the
case at bar. Petitioner’s absence is not without a justifiable reason. It must be recalled that
upon receipt of the Notice to Terminate by reason of abandonment, petitioner sent respondent
a letter explaining that he could not go back to work because of the pendency of his complaint
for illegal suspension. And immediately after he was dismissed for abandonment of work, he
lost no time to amend his complaint to illegal dismissal.

This alone negates any intention on his part to forsake his work. It is a settled doctrine
that the filing of a complaint for illegal dismissal is inconsistent with the charge of abandonment,
for an employee who takes steps to protest his dismissal cannot by logic be said to have
abandoned his work.
PHILIPPINE TELEGRAPH AND TELEPHONE CORPORATION v. CA An employee cannot be promoted, even if merely as a result of a transfer, without his consent.
G.R. No. 152057 | September 29, 2003 A transfer that results in promotion or demotion, advancement or reduction or a transfer that
aims to lure the employee away from his permanent position cannot be done without the
FACTS: employees consent.

PT&T is a company engaged in providing telegraph and communication services through its There is no law that compels an employee to accept a promotion for the reason that a promotion
different branches while the private respondents are its employees. After conducting a study, is in the nature of a gift or reward, which a person has a right to refuse. Hence, the exercise by
the petitioner implemented a relocation restructuring program wherein the private respondents the private respondents of their right cannot be considered in law as insubordination, or willful
were given options to choose a branch where they will transfer. Those who accept will be disobedience of a lawful order of the employer. As such, there was no valid cause for the private
offered allowances and other benefits. The private respondents however, rejected the offer on respondents dismissal.
the ground that the transfer would cause difficulties since the branches were far and would
entail separation from their respective families. PT&T considered the refusal as insubordination As the questioned dismissal is not based on any of the just or valid grounds under Article 282
and willful disobedience and thus dismissed the private respondents. This prompted the of the Labor Code, the NLRC correctly ordered the private respondents reinstatement without
respondents to file a complaint for illegal dismissal while the union filed an unfair labor practice loss of seniority rights and the payment of backwages from the time of their dismissal up to
case against the company. The petitioner alleged that the transfer was an exercise of their actual reinstatement.
management prerogative and was done in good faith aimed at decongesting surplus
employees. DISPOSITIVE:
LA – ruled in favor of PT&T, ratiocinating that an employer, in the exercise of his management IN LIGHT OF THE ALL THE FOREGOING, the Decision of the Court of Appeals dated June
prerogative, may cause the transfer of his employees provided that the same is not attended 15, 2001 is hereby AFFIRMED.
by bad faith nor would result in the demotion of the transferred employees.
NLRC – ruled in favor of private respondents, interpreting the said transfers of the respondents
as a promotion; that the movement was not merely lateral but of scalar ascent, considering the
movement of the job grades, and the corresponding increase in salaries. As such, the
respondents had the right to accept or refuse the said promotions. The NLRC concluded that
in the exercise of their right to refuse the promotion given them, they could not be dismissed.
CA – affirmed NLRC ruling


WON the said transfers are considered as promotions?


YES. The increase in the respondents responsibility can be ascertained from the scalar ascent
of their job grades. With or without a corresponding increase in salary, the respective transfer
of the private respondents were in fact promotions, following the ruling enunciated in
Homeowners Savings and Loan Association, Inc. v. NLRC: [P]romotion, as we defined in
Millares v, Subido, is the advancement from one position to another with an increase in duties
and responsibilities as authorized by law, and usually accompanied by an increase in salary.
Apparently, the indispensable element for there to be a promotion is that there must be an
advancement from one position to another or an upward vertical movement of the employees
rank or position. Any increase in salary should only be considered incidental but never
determinative of whether or not a promotion is bestowed upon an employee. This can be
likened to the upgrading of salaries of government employees without conferring upon the, the
concomitant elevation to the higher positions.