FIRST
DIVISION
ARCHBUILD
MASTERS AND CONSTRUCTION, INC.,
and JOAQUIN C. REGALA,
Petitioners,
G. R. No. 108142
December 26, 1995
-versus-
NATIONAL
LABOR RELATIONS COMMISSION,
and ROGELIO CAYANGA,
Respondents.
D
E C I S I O N
BELLOSILLO, J.:
This is a
Petition for Certiorari filed by Archbuild-Masters
and Construction, Inc. [ARMACON] and its president Joaquin C. Regala
against
respondents National Labor Relations Commission and Rogelio Cayanga[1]
for grave abuse of discretion in holding that the latter respondent was
illegally dismissed by petitioners.
Sometime in
August 1988, petitioners entered into
a contract with the government of the United States of America to lay
water
pipes inside the U.S. Naval Base in Subic, Zambales. This undertaking
involved
the digging of ditches, laying of pipes and the filling up of all
excavations
resulting therefrom. On 20 March 1989, considering that the project
would
require the transporting of men and construction materials, petitioners
hired the services of drivers, one of whom was private respondent
Rogelio
Cayanga. His employment papers specifically provided that he was being
hired as driver for the Subic project.[2]
According to
petitioners, in December 1989, the
phase of work for which private respondent was hired neared its
completion,
so that a lesser number of workers and construction materials were
required
to be transported to the digging sites, which meant fewer trips to the
construction site and a reduction in the number of drivers. Thus, on 26
December 1989, petitioners posted a list of employees whose services
were
no longer needed by reason of the reduction in manpower due to the
completion
of a phase of the Subic project. The list included private respondent.cralaw:red
In a letter dated
26 December 1989, petitioners
asked for clearance from Regional Office No. III, Zambales District
Labor
Office, Olongapo City, to terminate the services of private respondent
and six [6] other employees to reduce the work force resulting from the
completion of the phase of the project for which private respondent and
six [6] others were employed.[3]
Petitioners likewise submitted the necessary Employer's Monthly Report
on Employees' Termination or Suspension required by Sec. 2, Rule 14 of
the Rules Implementing B.P. Blg. 130, for the month of January 1990.[4]
On 22 January
1990, private respondent filed a
complaint against petitioners for illegal dismissal.[5]
He asserted that his dismissal was done in bad faith and that the real
reason for his removal was not the supposed proximate completion of the
Subic Project but his alleged absences without leave. According to him,
when he first reported for work on 27 December 1989, after a six-day
vacation
[20 to 26 December 1989] of which petitioners were properly informed,
he
was verbally notified by his supervising engineer that his employment
was
already terminated because of his absences without proper leave. After
vehemently denying that his vacation was unauthorized, he alleged that
he was then allowed by petitioners to continue his employment for two
more
days when they realized that he could not be validly dismissed on such
ground. Then on 29 December 1989, private respondent found himself in a
quandary when he unexpectedly read in the company bulletin board, that
his employment had already been terminated due to project completion.
He
contended that the supposed "project completion" cited by petitioners
as
the ground for his dismissal was just used by the latter to immediately
terminate his employment. He insisted that the real reason for his
dismissal
was his absences allegedly incurred by him without proper leave, and
that
the latter only used "project completion" to camouflage his unlawful
removal
so that he could no longer be heard on the real reason for his
dismissal.[6]
Private
respondent argued that there could not
have been any completion of a phase or stage of the construction
project
because some employees who were previously dismissed were in fact
either
re-hired or replaced by petitioners,[7]
and that their bad faith in effecting his dismissal was further
demonstrated
by their inconsistent explanations for his dismissal. According to him,
the Employer's Monthly Report submitted by petitioners to the
Department
of Labor and Employment expressly stated that the nature of his
termination
was due to "shutdown/retrenchment" while the list of dismissed project
employees posted in the company premises as well as the request to
terminate
these employees submitted to the District Labor Office declared
"project
completion" as the ground for dismissal. Under these circumstances,
according
to private respondent, if petitioners would instead invoke
"shutdown/retrenchment"
as the proper ground for his dismissal they would have again violated
his
rights under Art. 283 of the Labor Code which mandates that in order to
dismiss an employee due to "shutdown/retrenchment" he must first be
furnished
a written notice of his dismissal at least one [1] month before its
effectivity.cralaw:red
On 2 October
1990, Labor Arbiter Manuel R. Caday
dismissed the complaint of private respondent for lack of merit. He
ruled
that private respondent's separation from work was anchored on a just
and
valid ground and that it was not effected in a wanton or malevolent
manner.
However, he ordered petitioners to pay private respondent P396.00 for
unpaid
wage differentials from 1 July 1989 to 1 January 1990.[8]
On appeal, the NLRC reversed the Labor Arbiter. It ruled that private
respondent
was illegally dismissed and directed petitioners to pay him backwages
from
1 January 1990 up to the closure of the Subic Naval Base. The NLRC
found
that petitioners failed to refute the claim of private respondent that
there was no project completion to speak of when they did not deny his
allegation that another driver was hired to replace him after his
dismissal.
The NLRC also gave considerable weight to the established fact that the
Employer's Monthly Report of petitioners expressly stated that private
respondent's termination was due to "shutdown/retrenchment" and not to
the completion of the project. According to the NLRC, this circumstance
belied the claim of petitioners that they dismissed private respondent
due to project completion. The NLRC then concluded that if indeed
"shutdown/retrenchment"
was the reason for private respondent's dismissal petitioners should
have
complied with the 30-day notice requirement under Art. 283 of the Labor
Code[9]
Petitioners' Motion for Reconsideration was denied; hence, this appeal.cralaw:red
We affirm the
decision of the NLRC as We find
private respondent illegally dismissed by ARMACON.
It is not
disputed that private respondent was
a project employee of ARMACON. As such he was employed in connection
with
a particular project the completion of which had been determined at the
time of his employment.[10]
Consequently, as a project employee of ARMACON, his employment may be
terminated
upon the completion of the project as there would be no further need
for
his services.[11]
Since a project employee's work depends on the availability of
projects,
necessarily the duration of his employment is not permanent but
coterminous
with the work to which he is assigned.[12]
It would be extremely burdensome for the employer, who depends on the
availability
of projects, to carry him as a permanent employee and pay him wages
even
if there are no projects for him to work on.[13]
The rationale behind this is that once the project is completed, it
would
be unjust to require the employer to maintain these employees in their
payroll. To do so would make the employee a privileged retainer who
collects
payment from his employer for work not done. This is extremely unfair
and
amounts to labor coddling at the expense of management.[14]
However, for
project workers employed in the construction
industry like the one before us, employers are allowed to reduce their
work force into a number suited for the remaining work to be done upon
the completion or proximate accomplishment of the construction project.
The employment of a project worker hired for a specific phase of a
construction
project is understood to be coterminus with the completion of such
phase
and not upon the accomplishment of the whole project. Thus, a worker
hired
for a particular phase of a construction project can be dismissed upon
the completion of such phase. Project workers in the construction
industry
may also be terminated as the phase of a construction project draws
nearer
to completion when their services are no longer needed provided they
are
not replaced.[15]
Policy Instructions No. 20[16]expressly recognizes
these
peculiar
employment arrangements in the construction industry because each phase
in these projects requires a varied number of workers. It is recognized
in this jurisdiction that the number of maintained workers in a
particular
construction project must be flexible and must conform with the
requirements
of each phase that remains unaccomplished.cralaw:red
However, if a
project employee is dismissed his
removal must still comply with the substantive and procedural
requirements
of due process. Sec. 3, Art. XIII, of the Constitution mandates that
the
State shall afford full protection to labor and declares that all
workers
shall be entitled to security of tenure. The fundamental guarantee of
security
of tenure and due process dictates that no worker shall be dismissed
except
for a just and authorized cause provided by law and after due process
has
been properly complied with.[17]
Therefore, a project employee hired for a specific task also enjoys
security
of tenure. A termination of his employment must be for a lawful cause
and
must be done in a manner which affords him the proper notice and
hearing.
Thus, a project employee must be duly furnished a written notice of his
impending dismissal and must be given the opportunity to dispute the
legality
of his removal.[18]
In the case
before Us, We are convinced that private
respondent Rogelio Cayanga was illegally dismissed by petitioners. In
pursuing
this appeal, petitioners rely on Policy Instructions No. 20 to justify
the dismissal of private respondent. They maintain that private
respondent's
discharge was necessary because as the Subic Project neared completion,
less and less employees were needed to finish the undertaking. They
insist
that Policy Instructions No. 20 provides the legal basis for his
removal
and assert that they faithfully complied with all the legal
requirements
therefor.cralaw:red
Although it is
acknowledged that the employment
of private respondent is terminable upon the completion or proximate
accomplishment
of the Subic Project or a phase thereof under Policy Instructions No.
20,
We nonetheless cannot sustain petitioners' assertion that Rogelio
Cayanga's
dismissal was lawful. To justly dismiss private respondent under Policy
Instructions No. 20, it is incumbent upon petitioners to show proof of
the proximate completion of the Subic Project when respondent Cayanga
questioned
the veracity of such an allegation. In the case at bench, petitioners
failed
to present substantial evidence to prove the proximate completion of
the
Subic Project. The affidavit executed by petitioners' personnel officer
and the manpower schedule, which supposedly proves that private
respondent's
services were no longer necessary for the remaining duration of the
project
are mere self-serving assertions that are not enough to substantiate
their
claim of proximate project completion. We find it in the interest of
justice,
to require employers to state the reason for their project employees'
dismissal
and prove this ground once its veracity is challenged. Employers who
hire
project employees are mandated to prove the actual basis for the
latter's
dismissal. A mere claim of project completion is not sufficient to
terminate
a project worker's employment without adequate proof to demonstrate
such
claims. In termination cases, like the one at bench, the burden of
proving
that an employee has been lawfully dismissed lies with the employer.[19]
Moreover, to allow employers to exercise their prerogative to terminate
a project worker's employment based on gratuitous assertions of project
completion, would destroy the constitutionally protected right of labor
to security of tenure.[20]
The facts and
circumstances surrounding the dismissal
of private respondent likewise cast serious doubt on whether project
completion
was the true reason behind the termination of his employment. As
correctly
observed by the NLRC, as well as private respondent, petitioners have
not
been consistent in citing project completion as the basis for the
dismissal.
After a careful perusal of the Employer's Monthly Report on Employees'
Termination accomplished and submitted by petitioners, We cannot help
entertaining
serious doubt, as the NLRC did, on the proper cause for private
respondent's
dismissal from his employment.cralaw:red
WHEREFORE, the
petition for certiorari is denied.
The assailed Resolution of the National Labor Relations Commission
dated
25 August 1992 directing petitioners "to pay complainant [private
respondent]
backwages computed from January 1, 1990 up to the closure of the Subic
Naval Base that has been of public knowledge" is affirmed. Costs
against
petitioners.cralaw:red
SO ORDERED.cralaw:red
Padilla, Davide,
Jr., Kapunan and Hermosisima,
Jr., JJ., concur.cralaw:red
_________________________________
Endnotes
[1]
NLRC Resolution of 25 August 1992; Annex "M," Petition; Rollo, pp.
91-102.
[2]
Petition, p. 3.
[3]
Id., p. 36.
[4]
Id., p.4.
[5]
Annex "D," Petition; Rollo, p. 38.
[6]
Annex "F," Petition; Rollo, pp. 43-44.
[7]
Rollo, p. 45.
[8]
Annex "J," Petition; Rollo, pp. 66-73.
[9]
See Note 1.
[10]
Art. 280, Labor Code; Rada v. NLRC, G. R. No. 96078, 9 January 1992,
205
SCRA 69; Philippine National Construction Corp. v. NLRC, G. R. No.
95816,
27 October 1992, 215 SCRA 204; Sandoval Shipyards, Inc. v. NLRC, G. R.
No. 65689, and Sandoval Shipyards v. Leogardo, G. R. No. 66119, 31 May
1985, 136 SCRA 674.
[11]
Philippine National Oil Co./Energy Dev't Corp. v. NLRC, G. R. No.
97747,
31 March 1993, 220 SCRA 695; Cartegenas v. Romago, G. R. No. 82973, 15
September 1989, 177 SCRA 637.
[12]
Mamansag v. NLRC, G. R. No. 97520, 9 February 1992, 218 SCRA 722.
[13]
Cartagenas v. NLRC; See Note 11.
[14]
De Ocampo v. NLRC, G. R. No. 81077, 6 June 1990, 186 SCRA 360.
[15]
Policy Instructions No. 20, pars. 6-7 provide: The employees of a
particular project are not terminated at the same time. Some phases of
the project are completed ahead of others. For this reason, the
completion
of a phase of the project is the completion of the project for an
employee
employed in such phase. In other words, employees terminated upon the
completion
of their phase of the project are not entitled to separation pay and
exempt
from the clearance requirement. On the other hand, those employed in a
particular phase of a construction project are also not terminated at
the
same time. Normally, less and less employees are required as the phase
draws closer to completion. Project employees terminated because their
services are no longer needed in their particular phase of the project
are not entitled to separation pay and are exempt from the clearance
requirement,
provided they are not replaced. If they are replaced, they shall be
entitled
to reinstatement with backwages.
[16]
An undated issuance by the then Secretary of Labor Blas Ople in order
to
stabilize the employer-employee relations in the construction industry.
[17]
Art. 277, Labor Code; Tanduay Distillery Labor Union v. NLRC, G. R. No.
73352, 6 December 1994, 239 SCRA 1; BPI Credit Corporation v. NLRC, G.
R. No. 106027, 25 July 1994, 234 SCRA 441; De Ysasi III v. NLRC, G. R.
No. 104599, 11 March 1994, 231 SCRA 173.
[18]
Art. 277 [b], Labor Code.
[19]
Art. 277, par. [b], Labor Code; Golden Donuts, Inc. v. NLRC, G. R. Nos.
105758-59, 21 February 1994, 230 SCRA 153; Gesulgon v. NLRC, G. R. No.
90349, 5 March 1993, 219 SCRA 561; Sigma Personnel Services v. NLRC, G.
R. No. 108284, 30 June 1993, 224 SCRA 181; Philippine Manpower Services
Inc. v. NLRC, G. R. No. 108284, 30 June 1993, 224 SCRA 691; Pacific
Timber
Export Corp. v. NLRC, G. R. No. 106170, 30 June 1993, 224 SCRA 860.
[20]
Art. XIII, Sec. 3; 1987 Constitution. |