SECOND DIVISION.
.
JAIME D. VIERNES,
CARLOS R. GARCIA, BERNARD BUSTILLO,
DANILO C. BALANAG,
FERDINAND DELLA, EDWARD A. ABELLERA,
ALEXANDER ABANAG,
DOMINGO ASIA, FRANCISCO BAYUGA,
ARTHUR M. ORIBELLO,
BUENAVENTURA DE GUZMAN, JR.,
ROBERT A.
ORDOÑO,
BERNARD V. JULARBAL, IGNACIO C. ALINGBAS
AND LEODEL N.
SORIANO,
Petitioners,
G.R.
No.
108405
April 4, 2003 - versus -
NATIONAL LABOR
RELATIONS
COMMISSION (THIRD DIVISION),
AND BENGUET ELECTRIC
COOPERATIVE, INC. (BENECO),
Respondents.
D E C I S I O N
AUSTRIA-MARTINEZ,
J.:chanroblesvirtuallawlibrary
Before us is a petition
for certiorari seeking to annul the decision promulgated by the
National
Labor Relations Commission (NLRC) on July 2, 1992 in NLRC CA No.
L-000384-92,[1]
and its resolution dated September 24, 1992 denying petitioners’ motion
for reconsideration.chanrobles virtuallaw libraryred
The factual background
of this case, as summarized by the Labor Arbiter, is as follows:chanrobles virtuallaw libraryred
Fifteen (15) in all,
these are consolidated cases for illegal dismissal, underpayment of
wages
and claim for indemnity pay against a common respondent, the Benguet
Electric
Cooperative, Inc., (BENECO for short) represented by its Acting General
Manager, Gerardo P. Versoza.chanrobles virtuallaw libraryred
Complainants’ services
as meter readers were contracted for hardly a month’s duration, or from
October 8 to 31, 1990. Their employment contracts, couched in
identical
terms, read:chanrobles virtuallaw libraryred
You are hereby appointed
as METER READER (APPRENTICE) under BENECO-NEA Management with
compensation
at the rate of SIXTY-SIX PESOS AND SEVENTY-FIVE CENTAVOS (P66.75) per
day
from October 08 to 31, 1990.chanrobles virtuallaw libraryred
x
x x. (Annex ‘B’,
Complainants’ Joint Position Paper)
The said term notwithstanding,
the complainants were allowed to work beyond October 31, 1990, or until
January 2, 1991. On January 3, 1991, they were each served their
identical notices of termination dated December 29, 1990. The
same
read:
Please be informed that
effective at the close of office hours of December 31, 1990, your
services
with the BENECO will be terminated. Your termination has nothing
to do with your performance. Rather, it is because we have to retrench
on personnel as we are already overstaffed.chanrobles virtuallaw libraryred
x
x x. (Annex ‘C’,
CJPP)
On the same date, the
complainants filed separate complaints for illegal dismissal. And
following the amendment of said complaints, they submitted their joint
position paper on April 4, 1991. Respondent filed its position
paper
on April 2, 1991.chanrobles virtuallaw libraryred
It is the contention
of the complainants that they were not apprentices but regular
employees
whose services were illegally and unjustly terminated in a manner that
was whimsical and capricious. On the other hand, the respondent
invokes
Article 283 of the Labor Code in defense of the questioned dismissal.[2]
On October 18, 1991,
the Labor Arbiter rendered a decision, the dispositive portion of which
reads as follows:
WHEREFORE, judgment
is hereby rendered:
1.
Dismissing the complaints for illegal dismissal filed by the
complainants
for lack of merit. However in view of the offer of the respondent
to enter into another temporary employment contract with the
complainants,
the respondent is directed to so extend such contract to each
complainant,
with the exception of Jaime Viernes, and to pay each the amount of
P2,590.50,
which represents a month’s salary, as indemnity for its failure to give
complainants the 30-day notice mandated under Article 283 of the Labor
Code; or, at the option of the complainants, to pay each financial
assistance
in the amount of P5,000.00 and the P2,590.50 above-mentioned.chanrobles virtuallaw libraryred
2.
Respondent is also ordered:
A.
To pay complainants the amount representing underpayment of their wages:
a)
Jaime Viernes, Carlos Garcia, Danilo Balanag, Edward Abellera,
Francisco
Bayuga, Arthur Oribello, Buenaventura de Guzman, Jr., Robert
Ordoño,
Bernard Jularbal and Leodel Soriano, P1,994.25 each;
b)
Bernard Bustillo and Domingo Asia, P1,838.50 each; and
c)
Ferdinand Della, Alexander Abanag and Ignacio Alingbas, P1,816.25 each.
B.
To extend to complainant Jaime Viernes an appointment as regular
employee
for the position of meter reader, the job he held prior to his
termination,
and to pay him P2,590.50 as indemnity, plus the underpayment of his
wages
as above stated.cralaw:red
C.
To pay P7,000.00 as and for attorney’s fees.cralaw:red
No damages.cralaw:red
SO ORDERED.[3]
Aggrieved by the Labor
Arbiter’s decision, the complainants and the respondent filed their
respective
appeals to the NLRC.cralaw:red
On July 2, 1992, the
NLRC modified its judgment, to wit:
WHEREFORE, premises
considered, judgment is hereby rendered modifying the appealed decision
by declaring complainants’ dismissal illegal, thus ordering their
reinstatement
to their former position as meter readers or to any equivalent position
with payment of backwages limited to one year and deleting the award of
indemnity and attorney’s fees. The award of underpayment of wages
is hereby AFFIRMED.chanrobles virtuallaw libraryred
SO ORDERED.[4]
On August 27, 1992,
complainants filed a Motion for Clarification and Partial
Reconsideration.[5]
On September 24, 1992, the NLRC issued a resolution denying the
complainants’
motion for reconsideration.[6]chanrobles virtuallaw libraryred
Hence, complainants
filed herein petition.cralaw:red
Private respondent BENECO
filed its Comment; the Office of the Solicitor General (OSG) filed a
Manifestation
and Motion in Lieu of Comment; public respondent NLRC filed its own
Comment;
and petitioners filed their Manifestation and Motion In Lieu of
Consolidated
Reply. Public respondent NLRC, herein petitioners, and private
respondent
filed their respective memoranda, and the OSG, its Manifestation in
1994.chanrobles virtuallaw libraryred
Pursuant to our ruling
in Rural Bank of Alaminos Employees Union vs. NLRC,[7]
to wit:
in the decision
in the case of St. Martin Funeral Homes vs. National Labor Relations
Commission,
G.R. No. 130866, promulgated on September 16, 1998, this Court
pronounced
that petitions for certiorari relating to NLRC decisions must be filed
directly with the Court of Appeals, and labor cases pending before this
Court should be referred to the appellate court for proper
disposition.
However, in cases where the Memoranda of both parties have been filed
with
this Court prior to the promulgation of the St. Martin decision, the
Court
generally opts to take the case itself for its final disposition.[8]chanrobles virtuallaw libraryred
and considering that
the parties have filed their respective memoranda as of 1994, we opt to
resolve the issues raised in the present petition.chanrobles virtuallaw libraryred
The parties raised the
following issues:
1.
Whether the respondent NLRC committed grave abuse of discretion in
ordering
the reinstatement of petitioners to their former position as meter
readers
on probationary status in spite of its finding that they are regular
employees
under Article 280 of the Labor Code.chanrobles virtuallaw libraryred
2.
Whether the respondent NLRC committed grave abuse of discretion in
limiting
the backwages of petitioners to one year only in spite of its finding
that
they were illegally dismissed, which is contrary to the mandate of full
backwages until actual reinstatement but not to exceed three years.chanrobles virtuallaw libraryred
3.
Whether the respondent NLRC committed grave abuse of discretion in
deleting
the award of indemnity pay which had become final because it was not
appealed
and in deleting the award of attorney’s fees because of the absence of
a trial-type hearing.chanrobles virtuallaw libraryred
4.
Whether the mandate of immediately executory on the reinstatement
aspect
even pending appeal as provided in the decision of Labor Arbiters
equally
applies in the decision of the National Labor Relations Commission even
pending appeal, by means of a motion for reconsideration of the order
reinstating
a dismissed employee or pending appeal because the case is elevated on
certiorari before the Supreme Court.[9]chanrobles virtuallaw libraryred
We find the petition
partly meritorious.cralaw:red
As to the first issue:
We sustain petitioners’ claim that they should be reinstated to their
former
position as meter readers, not on a probationary status, but as regular
employees.chanrobles virtuallaw libraryred
Reinstatement means
restoration to a state or condition from which one had been removed or
separated.[10]
In case of probationary employment, Article 281 of the Labor Code
requires
the employer to make known to his employee at the time of the latter’s
engagement of the reasonable standards under which he may qualify as a
regular employee.chanrobles virtuallaw libraryred
A review of the records
shows that petitioners have never been probationary employees.
There
is nothing in the letter of appointment, to indicate that their
employment
as meter readers was on a probationary basis. It was not shown
that
petitioners were informed by the private respondent, at the time of the
latter’s employment, of the reasonable standards under which they could
qualify as regular employees. Instead, petitioners were initially
engaged to perform their job for a limited duration, their employment
being
fixed for a definite period, from October 8 to 31, 1990.chanrobles virtuallaw libraryred
Private respondent’s
reliance on the case of Brent School, Inc. vs. Zamora,[11]
wherein we held as follows:
Accordingly, and since
the entire purpose behind the development of legislation culminating in
the present Article 280 of the Labor Code clearly appears to have been,
as already observed, to prevent circumvention of the employee’s right
to
be secure in his tenure, the clause in said article indiscriminately
and
completely ruling out all written or oral agreements conflicting with
the
concept of regular employment as defined therein should be construed to
refer to the substantive evil that the Code itself has singled out:
agreements
entered into precisely to circumvent security of tenure. It
should
have no application to instances where a fixed period of employment was
agreed upon knowingly and voluntarily by the parties, without any
force,
duress or improper pressure being brought to bear upon the employee and
absent any other circumstances vitiating his consent, or where it
satisfactorily
appears that the employer and employee dealt with each other on more or
less equal terms with no moral dominance whatever being exercised by
the
former over the latter.[12]chanrobles virtuallaw libraryred
is misplaced.cralaw:red
The principle we have
enunciated in Brent applies only with respect to fixed term
employments.
While it is true that petitioners were initially employed on a fixed
term
basis as their employment contracts were only for October 8 to 31,
1990,
after October 31, 1990, they were allowed to continue working in the
same
capacity as meter readers without the benefit of a new contract or
agreement
or without the term of their employment being fixed anew. After
October
31, 1990, the employment of petitioners is no longer on a fixed term
basis.
The complexion of the employment relationship of petitioners and
private
respondent is thereby totally changed. Petitioners have attained
the status of regular employees.chanrobles virtuallaw libraryred
Under Article 280 of
the Labor Code, a regular employee is one who is engaged to perform
activities
which are necessary or desirable in the usual business or trade of the
employer, or a casual employee who has rendered at least one year of
service,
whether continuous or broken, with respect to the activity in which he
is employed.chanrobles virtuallaw libraryred
In De Leon vs. NLRC,[13]
and Abasolo vs. NLRC,[14]
we laid down the test in determining regular employment, to wit:
The primary standard,
therefore, of determining regular employment is the reasonable
connection
between the particular activity performed by the employee in relation
to
the usual trade or business 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 a year, even if the
performance
is not continuous and merely intermittent, the law deems 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 considered regular, but only with respect to such activity and while
such activity exists.[15]chanrobles virtuallaw libraryred
Clearly therefrom, there
are two separate instances whereby it can be determined that an
employment
is regular: (1) The particular activity performed by the employee is
necessary
or desirable in the usual business or trade of the employer; or (2) if
the employee has been performing the job for at least a year.chanrobles virtuallaw libraryred
Herein petitioners fall
under the first category. They were engaged to perform activities
that are necessary to the usual business of private respondent.
We
agree with the labor arbiter’s pronouncement that the job of a meter
reader
is necessary to the business of private respondent because unless a
meter
reader records the electric consumption of the subscribing public,
there
could not be a valid basis for billing the customers of private
respondent.
The fact that the petitioners were allowed to continue working after
the
expiration of their employment contract is evidence of the necessity
and
desirability of their service to private respondent’s business.
In
addition, during the preliminary hearing of the case on February 4,
1991,
private respondent even offered to enter into another temporary
employment
contract with petitioners. This only proves private respondent’s
need for the services of herein petitioners. With the
continuation
of their employment beyond the original term, petitioners have become
full-fledged
regular employees. The fact alone that petitioners have rendered
service for a period of less than six months does not make their
employment
status as probationary.chanrobles virtuallaw libraryred
Since petitioners are
already regular employees at the time of their illegal dismissal from
employment,
they are entitled to be reinstated to their former position as regular
employees, not merely probationary.chanrobles virtuallaw libraryred
As to the second issue,
Article 279 of the Labor Code, as amended by R.A. No. 6715, which took
effect on March 21, 1989, provides that an illegally dismissed employee
is entitled to 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.
Since petitioners were employed on October 8, 1990, the amended
provisions
of Article 279 of the Labor Code shall apply to the present case.
Hence, it was patently erroneous, tantamount to grave abuse of
discretion
on the part of the public respondent in limiting to one year the
backwages
awarded to petitioners.chanrobles virtuallaw libraryred
With respect to the
third issue, an employer becomes liable to pay indemnity to an employee
who has been dismissed if, in effecting such dismissal, the employer
fails
to comply with the requirements of due process.[16]
The indemnity is in the form of nominal damages intended not to
penalize
the employer but to vindicate or recognize the employee’s right to
procedural
due process which was violated by the employer.[17]
Under Article 2221 of the Civil Code, nominal damages are adjudicated
in
order that a right of the plaintiff, which has been violated or invaded
by the defendant, may be vindicated or recognized, and not for the
purpose
of indemnifying the plaintiff for any loss suffered by him.chanrobles virtuallaw libraryred
We do not agree with
the ruling of the NLRC that indemnity is incompatible with the award of
backwages. These two awards are based on different
considerations.
Backwages are granted on grounds of equity to workers for earnings lost
due to their illegal dismissal from work.[18]
On the other hand, the award of indemnity, as we have earlier held, is
meant to vindicate or recognize the right of an employee to due process
which has been violated by the employer.chanrobles virtuallaw libraryred
In the present case,
the private respondent, in effecting the dismissal of petitioners from
their employment, failed to comply with the provisions of Article 283
of
the Labor Code which requires an employer to serve a notice of
dismissal
upon the employees sought to be terminated and to the Department of
Labor,
at least one month before the intended date of termination.
Petitioners
were served notice on January 3, 1991 terminating their services,
effective
December 29, 1990, or retroactively, in contravention of Article
283.
This renders the private respondent liable to pay indemnity to
petitioners.chanrobles virtuallaw libraryred
Thus, we find that the
NLRC committed grave abuse of discretion in deleting the award of
indemnity.
In Del Val vs. NLRC,[19]
we held that the award of indemnity ranges from P1,000.00 to P10,000.00
depending on the particular circumstances of each case. In the
present
case, the amount of indemnity awarded by the labor arbiter is
P2,590.50,
which is equivalent to petitioners’ one-month salary. We find no
cogent reason to modify said award, for being just and reasonable.cralaw:red
As to the award of attorney’s
fees, the same is justified by the provisions of Article 111 of the
Labor
Code, to wit:
Art. 111. Attorney’s
fees - (a) In cases of unlawful withholding of wages the culpable party
may be assessed attorney’s fees equivalent to ten percent of the amount
of wages recovered.chanrobles virtuallaw libraryred
(b) It shall be
unlawful for any person to demand or accept, in any judicial or
administrative
proceedings for the recovery of the wages, attorney’s fees which exceed
ten percent of the amount of wages recovered.chanrobles virtuallaw libraryred
As to the last issue,
Article 223 of the Labor Code is plain and clear that the decision of
the
NLRC shall be final and executory after ten (10) calendar days from
receipt
thereof by the parties. In addition, Section 2(b), Rule VIII of
the
New Rules of Procedure of the NLRC provides that "should there be a
motion
for reconsideration entertained pursuant to Section 14, Rule VII of
these
Rules, the decision shall be executory after ten calendar days from
receipt
of the resolution on such motion."
We find nothing inconsistent
or contradictory between Article 223 of the Labor Code and Section
2(b),
Rule VIII, of the NLRC Rules of Procedure. The aforecited
provision
of the NLRC Rules of Procedure merely provides for situations where a
motion
for reconsideration is filed. Since the Rules allow the filing of
a motion for reconsideration of a decision of the NLRC, it simply
follows
that the ten-day period provided under Article 223 of the Labor Code
should
be reckoned from the date of receipt by the parties of the resolution
on
such motion. In the case at bar, petitioners received the
resolution
of the NLRC denying their motion for reconsideration on October 22,
1992.
Hence, it is on November 2, 1992 that the questioned decision became
executory.chanrobles virtuallaw libraryred
WHEREFORE, the petition
is partially GRANTED. The decision of the National Labor Relations
Commission
dated July 2, 1992 is MODIFIED. Private respondent Benguet
Electric
Cooperative, Inc. (BENECO) is hereby ordered to reinstate petitioners
to
their former or substantially equivalent position as regular employees,
without loss of seniority rights and other privileges appurtenant
thereto,
with full backwages from the time of their dismissal until they are
actually
reinstated. The amount of P2,590.50 awarded by the labor arbiter
as indemnity to petitioners is REINSTATED. Private respondent is also
ordered
to pay attorney’s fees in the amount of ten percent (10%) of the total
monetary award due to the petitioners. In all other respects the
assailed decision and resolution are AFFIRMED.chanrobles virtuallaw libraryred
Costs against private
respondent BENECO.chanrobles virtuallaw libraryred
SO ORDERED.chanrobles virtuallaw libraryred
Bellosillo, J.,
(Chairman),
Mendoza, Quisumbing, and Callejo, Sr., JJ., concur.chanrobles virtuallaw libraryred
____________________________
Endnotes:
[1]
Entitled, "Jaime D. Viernes, et al., Complainants-Appellants, versus
Benguet
Electric Cooperative, Inc. represented by Gerardo P. Verzosa, Acting
General
Manager, Respondent-Appellant."
[2]
NLRC Records, p. 110.
[3]
Ibid.chanrobles virtuallaw libraryred
[4]
NLRC Records, p. 325.
[5]
Id., at p. 328.chanrobles virtuallaw libraryred
[6]
Id., at p. 371.chanrobles virtuallaw libraryred
[7]
317 SCRA 669 (1999).
[8]
Id., at p. 678.chanrobles virtuallaw libraryred
[9]
Petition, Rollo, p. 26.
[10]
Judy Philippines, Inc. vs. NLRC, 289 SCRA 755, 767 (1998); De Guzman
vs.
NLRC, 312 SCRA 266, 274 (1999).
[11]
181 SCRA 702 (1990).
[12]
Id., at p. 716.chanrobles virtuallaw libraryred
[13]
176 SCRA 615, (1989).
[14]
346 SCRA 293 (2000).
[15]
Id., at p. 304.chanrobles virtuallaw libraryred
[16]
Kwikway Engineering Works vs. NLRC, 195 SCRA 526, 532 (1991); Aurelio
vs.
NLRC, 221 SCRA 432, 443 (1993); Sampaguita Garments Corporation vs.
NLRC,
233 SCRA 260, 265 (1994).
[17]
Better Buildings, Inc. vs. NLRC, 283 SCRA 242, 251 (1997); Iran vs.
NLRC
(Fourth Division), 289 SCRA 433, 442 (1998).
[18]
Paguio vs. PLDT, G.R. No. 154072, December 3, 2002.chanrobles virtuallaw libraryred
[19]
296 SCRA 283, 290 (1998). |