SECOND DIVISION
PHILIPS
SEMICONDUCTORS
(PHILS.), INC.,
Petitioner,
G.R.
No.
141717
April 14, 2004
-versus-
ELOISA FADRIQUELA,
Respondent.
D E C I S I O N
CALLEJO,
SR., J.:chanroblesvirtuallawlibrary
Before us is a petition
for review of the Decision[1]
of the Court of Appeals (CA) in CA-G.R. SP No. 52149 and its Resolution
dated January 26, 2000 denying the motion for reconsideration therefrom.chanrobles virtuallaw libraryred The Case for the
Petitioner
The petitioner Philips
Semiconductors (Phils.), Inc. is a domestic corporation engaged in the
production and assembly of semiconductors such as power devices, RF
modules,
CATV modules, RF and metal transistors and glass diods. It caters
to domestic and foreign corporations that manufacture computers,
telecommunications
equipment and cars.cralaw:red
Aside from contractual
employees, the petitioner employed 1,029 regular workers. The
employees
were subjected to periodic performance appraisal based on output,
quality,
attendance and work attitude.[2]
One was required to obtain a performance rating of at least 3.0 for the
period covered by the performance appraisal to maintain good standing
as
an employee.cralaw:red
On May 8, 1992, respondent
Eloisa Fadriquela executed a Contract of Employment with the petitioner
in which she was hired as a production operator with a daily salary of
P118. Her initial contract was for a period of three months up to
August 8, 1992,[3]
but was extended for two months when she garnered a performance rating
of 3.15.[4]
Her contract was again renewed for two months or up to December 16,
1992,[5]
when she received a performance rating of 3.8.[6]
After the expiration of her third contract, it was extended anew, for
three
months,[7]
that is, from January 4, 1993 to April 4, 1993.cralaw:red
After garnering a performance
rating of 3.4,[8]
the respondent’s contract was extended for another three months, that
is,
from April 5, 1993 to June 4, 1993.[9]
She, however, incurred five absences in the month of April, three
absences
in the month of May and four absences in the month of June.[10]
Line supervisor Shirley F. Velayo asked the respondent why she incurred
the said absences, but the latter failed to explain her side. The
respondent was warned that if she offered no valid justification for
her
absences, Velayo would have no other recourse but to recommend the
non-renewal
of her contract. The respondent still failed to respond, as a
consequence
of which her performance rating declined to 2.8. Velayo
recommended
to the petitioner that the respondent’s employment be terminated due to
habitual absenteeism,[11]
in accordance with the Company Rules and Regulations.[12]
Thus, the respondent’s contract of employment was no longer renewed.chanrobles virtuallaw libraryred
The Complaint of
the Respondent
The respondent filed
a complaint before the National Capital Region Arbitration Branch of
the
National Labor Relations Commission (NLRC) for illegal dismissal
against
the petitioner, docketed as NLRC Case No. NCR-07-04263-93. She
alleged,
inter alia, that she was illegally dismissed, as there was no valid
cause
for the termination of her employment. She was not notified of
any
infractions she allegedly committed; neither was she accorded a chance
to be heard. According to the respondent, the petitioner did not
conduct any formal investigation before her employment was
terminated.
Furthermore, considering that she had rendered more than six months of
service to the petitioner, she was already a regular employee and could
not be terminated without any justifiable cause. Moreover, her
absences
were covered by the proper authorizations.[13]
On the other hand, the
petitioner contended that the respondent had not been dismissed, but
that
her contract of employment for the period of April 4, 1993 to June 4,
1993
merely expired and was no longer renewed because of her low performance
rating. Hence, there was no need for a notice or
investigation.
Furthermore, the respondent had already accumulated five unauthorized
absences
which led to the deterioration of her performance, and ultimately
caused
the non-renewal of her contract.[14]
The Ruling of the
Labor Arbiter and the NLRC
On June 26, 1997, the
Labor Arbiter rendered a decision dismissing the complaint for lack of
merit, thus:
IN THE LIGHT OF ALL
THE FOREGOING, the complaint is hereby dismissed for lack of
merit.
The respondent is, however, ordered to extend to the complainant a send
off award or financial assistance in the amount equivalent to one-month
salary on ground of equity.[15]
The Labor Arbiter declared
that the respondent, who had rendered less than seventeen months of
service
to the petitioner, cannot be said to have acquired regular
status.
The petitioner and the Philips Semiconductor Phils., Inc., Workers
Union
had agreed in their Collective Bargaining Agreement (CBA) that a
contractual
employee would acquire a regular employment status only upon completion
of seventeen months of service. This was also reflected in the
minutes
of the meeting of April 6, 1993 between the petitioner and the
union.
Further, a contractual employee was required to receive a performance
rating
of at least 3.0, based on output, quality of work, attendance and work
attitude, to qualify for contract renewal. In the respondent’s
case,
she had worked for the petitioner for only twelve months. In the
last extension of her employment contract, she garnered only 2.8
points,
below the 3.0 required average, which disqualified her for contract
renewal,
and regularization of employment. The Labor Arbiter also ruled
that
the respondent cannot justifiably complain that she was deprived of her
right to notice and hearing because her line supervisor had asked her
to
explain her unauthorized absences. Accordingly, these dialogues
between
the respondent and her line supervisor can be deemed as substantial
compliance
of the required notice and investigation.cralaw:red
The Labor Arbiter declared,
however, that the respondent had rendered satisfactory service for a
period
of one year, and since her infraction did not involve moral turpitude,
she was entitled to one month’s salary.cralaw:red
Aggrieved, the respondent
appealed to the NLRC, which, on September 16, 1998, issued a Resolution
affirming the decision of the Labor Arbiter and dismissing the
appeal.
The NLRC explained that the respondent was a contractual employee whose
period of employment was fixed in the successive contracts of
employment
she had executed with the petitioner. Thus, upon the expiration
of
her contract, the respondent’s employment automatically ceased.
The
respondent’s employment was not terminated; neither was she dismissed.cralaw:red
The NLRC further ruled
that as a contractual employee, the respondent was bound by the
stipulations
in her contract of employment which, among others, was to maintain a
performance
rating of at least 3.0 as a condition for her continued
employment.
Since she failed to meet the said requirement, the petitioner was
justified
in not renewing her contract.cralaw:red
The respondent filed
a motion for reconsideration of the resolution, but on January 12,
1999,
the NLRC resolved to deny the same.
The Case Before
the
Court of Appeals
Dissatisfied, the respondent
filed a petition for certiorari under Rule 65 before the Court of
Appeals,
docketed as CA-G.R. SP No. 52149, for the reversal of the resolutions
of
the NLRC.chanrobles virtuallaw libraryred
On October 11, 1999,
the appellate court rendered a decision reversing the decisions of the
NLRC and the Labor Arbiter and granting the respondent’s
petition.
The CA ratiocinated that the bases upon which the NLRC and the Labor
Arbiter
founded their decisions were inappropriate because the CBA and the
Minutes
of the Meeting between the union and the management showed that the CBA
did not cover contractual employees like the respondent. Thus,
the
seventeenth-month probationary period under the CBA did not apply to
her.
The CA ruled that under Article 280 of the Labor Code, regardless of
the
written and oral agreements between an employee and her employer, an
employee
shall be deemed to have attained regular status when engaged to perform
activities which are necessary and desirable in the usual trade or
business
of the employer. Even casual employees shall be deemed regular
employees
if they had rendered at least one year of service to the employer,
whether
broken or continuous.cralaw:red
The CA noted that the
respondent had been performing activities that were usually necessary
and
desirable to the petitioner’s business, and that she had rendered
thirteen
months of service. It concluded that the respondent had attained
regular status and cannot, thus, be dismissed except for just cause and
only after due hearing. The appellate court further declared that
the task of the respondent was hardly specific or seasonal. The
periods
fixed in the contracts of employment executed by the respondent were
designed
by the petitioner to preclude the respondent from acquiring regular
employment
status. The strict application of the contract of employment against
the
respondent placed her at the mercy of the petitioner, whose employees
crafted
the said contract.cralaw:red
According to the appellate
court, the petitioner’s contention that the respondent’s employment on
“as the need arises” basis was illogical. If such stance were
sustained,
the court ruled, then no employee would attain regular status even if
employed
by the petitioner for seventeen months or more. The CA held that
the respondent’s sporadic absences upon which her dismissal was
premised
did not constitute valid justifiable grounds for the termination of her
employment. The tribunal also ruled that a less punitive penalty
would suffice for missteps such as absenteeism, especially considering
that the respondent had performed satisfactorily for the past twelve
months.cralaw:red
The CA further held
that, contrary to the ruling of the Labor Arbiter, the dialogues
between
the respondent and the line supervisor cannot be considered substantial
compliance with the requirement of notice and investigation.
Thus,
the respondent was not only dismissed without justifiable cause; she
was
also deprived of her right to due process.cralaw:red
The petitioner filed
a motion for reconsideration of the decision but on January 26, 2000,
the
CA issued a resolution denying the same.
The Case Before
the
Court
The petitioner filed
the instant petition and raised the following issues for the court’s
resolution:
(a) whether or not the respondent was still a contractual employee of
the
petitioner as of June 4, 1993; (b) whether or not the petitioner
dismissed
the respondent from her employment; (c) if so, whether or not she was
accorded
the requisite notice and investigation prior to her dismissal; and (d)
whether or not the respondent is entitled to reinstatement and full
payment
of backwages as well as attorney’s fees.cralaw:red
On the first issue,
the petitioner contends that the policy of hiring workers for a
specific
and limited period on an “as needed basis,” as adopted by the
petitioner,
is not new; neither is it prohibited. In fact, according to the
petitioner,
the hiring of workers for a specific and limited period is a valid
exercise
of management prerogative. It does not necessarily follow that
where
the duties of the employee consist of activities usually necessary or
desirable
in the usual course of business of the employer, the parties are
forbidden
from agreeing on a period of time for the performance of such
activities.
Hence, there is nothing essentially contradictory between a definite
period
of employment and the nature of the employee’s duties.chanrobles virtuallaw libraryred
According to the petitioner,
it had to resort to hiring contractual employees for definite periods
because
it is a semiconductor company and its business is cyclical in
nature.
Its operation, production rate and manpower requirements are dictated
by
the volume of business from its clients and the availability of the
basic
materials. It produces the products upon order of its clients and
does not allow such products to be stockpiled. Peak loads due to
cyclical demands increase the need for additional manpower for short
duration.
Thus, the petitioner often experiences short-term surges in labor
requirements.
The hiring of workers for a definite period to supplement the regular
work
force during the unpredictable peak loads was the most efficient, just
and practical solution to the petitioner’s operating needs.cralaw:red
The petitioner contends
that the CA misapplied the law when it insisted that the respondent
should
be deemed a regular employee for having been employed for more than one
year. The CA ignored the exception to this rule, that the parties
to an employment contract may agree otherwise, particularly when the
same
is established by company policy or required by the nature of work to
be
performed. The employer has the prerogative to set reasonable
standards
to qualify for regular employment, as well as to set a reasonable
period
within which to determine such fitness for the job.cralaw:red
According to the petitioner,
the conclusion of the CA that the policy adopted by it was intended to
circumvent the respondent’s security of tenure is without basis.
The petitioner merely exercised a right granted to it by law and, in
the
absence of any evidence of a wrongful act or omission, no wrongful
intent
may be attributed to it. Neither may the petitioner be penalized
for agreeing to consider workers who have rendered more than seventeen
months of service as regular employees, notwithstanding the fact that
by
the nature of its business, the petitioner may enter into specific
limited
contracts only for the duration of its clients’ peak demands.
After
all, the petitioner asserts, the union recognized the need to establish
such training and probationary period for at least six months for a
worker
to qualify as a regular employee. Thus, under their CBA, the
petitioner
and the union agreed that contractual workers be hired as of December
31,
1992.cralaw:red
The petitioner
stresses that the operation of its business as a semiconductor company
requires the use of highly technical equipment which, in turn, calls
for
certain special skills for their use. Consequently, the
petitioner,
in the exercise of its best technical and business judgment, has set a
standard of performance for workers as well as the level of skill,
efficiency,
competence and production which the workers must pass to qualify as a
regular
employee. In rating the performance of the worker, the following
appraisal factors are considered by the respondent company as
essential:
(1) output (40%), (2) quality (30%), (3) attendance (15%), and (4) work
attitude (15%). The rate of 3.0 was set as the passing
grade.
As testified to by the petitioner’s Head of Personnel Services, Ms.
Cecilia
C. Mallari:
A worker’s efficiency
and productivity can be established only after he has rendered service
using Philips’ equipment over a period of time. A worker has to
undergo
training, during which time the worker is taught the manufacturing
process
and quality control. After instructions, the worker is subjected
to written and oral examinations to determine his fitness to continue
with
the training. The orientation and initial training lasts from
three
to four weeks before the worker is assigned to a specific work
station.
Thereafter, the worker’s efficiency and skill are monitored.chanrobles virtuallaw libraryred
Among the factors considered
(before a contractual employee becomes a regular employee) are output,
quality, attendance, and work attitude, which includes cooperation,
discipline,
housekeeping and inter-office employee relationship. These
factors
determine the worker’s efficiency and productivity.[16]
The Court’s Ruling
In ruling for the respondent,
the appellate court applied Article 280 of the Labor Code of the
Philippines,
as amended, which reads:
Art. 280. Regular
and Casual Employment. – The provisions of written agreement to the
contrary
notwithstanding and regardless of the oral argument 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.cralaw:red
An employment shall
be deemed to be casual if it is not covered by the preceding paragraph;
Provided, That, any employee who has rendered at least one year of
service,
whether such service is continuous or broken, shall be considered a
regular
employee with respect to the activity in which he is employed and his
employment
shall continue while such activity exists.cralaw:red
The appellate court
held that, in light of the factual milieu, the respondent was already a
regular employee on June 4, 1993. Thus:
It is apparent from
the factual circumstances of this case that the period of employment
has
been imposed to preclude acquisition of tenurial security by
petitioner.
It bears stressing that petitioner’s original contract of employment,
dated
May 8, 1992 to August 8, 1992, had been extended through several
contracts
– one from October 13, 1992 to December 16, 1992, another from January
7, 1993 to April 4, 1993, and, lastly, from April 5, 1993 to June 4,
1993.cralaw:red
The fact that the petitioner
had rendered more than one year of service at the time of his (sic)
dismissal
only shows that she is performing an activity which is usually
necessary
and desirable in private respondent’s business or trade. The work
of petitioner is hardly “specific” or “seasonal.” The petitioner
is, therefore, a regular employee of private respondent, the provisions
of their contract of employment notwithstanding. The private
respondent’s
prepared employment contracts placed petitioner at the mercy of those
who
crafted the said contract.[17]chanrobles virtuallaw libraryred
We agree with the appellate
court.cralaw:red
Article 280 of the Labor
Code of the Philippines was emplaced in our statute books to prevent
the
circumvention by unscrupulous employers of the employee’s right to be
secure
in his tenure by indiscriminately and completely ruling out all written
and oral agreements inconsistent with the concept of regular employment
defined therein. The language of the law manifests the intent to
protect the tenurial interest of the worker who may be denied the
rights
and benefits due a regular employee because of lopsided agreements with
the economically powerful employer who can maneuver to keep an employee
on a casual or temporary status for as long as it is convenient to it.[18]
In tandem with Article 281 of the Labor Code, Article 280 was designed
to put an end to the pernicious practice of making permanent casuals of
our lowly employees by the simple expedient of extending to them
temporary
or probationary appointments, ad infinitum.[19]
The two kinds of regular
employees under the law are (1) those 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 activities in which
they
are employed.[20]
The primary standard to determine a regular employment is the
reasonable
connection between the particular activity performed by the employee in
relation to the 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.[21]
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
of the employer. Hence, the employment is also considered
regular,
but only with respect to such activity and while such activity exists.[22]
The law does not provide the qualification that the employee must first
be issued a regular appointment or must be declared as such before he
can
acquire a regular employee status.[23]
In this case, the respondent
was employed by the petitioner on May 8, 1992 as production
operator.
She was assigned to wirebuilding at the transistor division.
There
is no dispute that the work of the respondent was necessary or
desirable
in the business or trade of the petitioner.[24]
She remained under the employ of the petitioner without any
interruption
since May 8, 1992 to June 4, 1993 or for one (1) year and twenty-eight
(28) days. The original contract of employment had been extended
or renewed for four times, to the same position, with the same
chores.
Such a continuing need for the services of the respondent is sufficient
evidence of the necessity and indispensability of her services to the
petitioner’s
business.[25]
By operation of law, then, the respondent had attained the regular
status
of her employment with the petitioner, and is thus entitled to security
of tenure as provided for in Article 279 of the Labor Code which reads:
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.cralaw:red
The respondent’s re-employment
under contracts ranging from two to three months over a period of one
year
and twenty-eight days, with an express statement that she may be
reassigned
at the discretion of the petitioner and that her employment may be
terminated
at any time upon notice, was but a catch-all excuse to prevent her
regularization.
Such statement is contrary to the letter and spirit of Articles 279 and
280 of the Labor Code. We reiterate our ruling in Romares v. NLRC:[26]
Succinctly put, in rehiring
petitioner, employment contracts ranging from two (2) to three (3)
months
with an express statement that his temporary job/service as mason shall
be terminated at the end of the said period or upon completion of the
project
was obtrusively a convenient subterfuge utilized to prevent his
regularization.
It was a clear circumvention of the employee’s right to security of
tenure
and to other benefits. It, likewise, evidenced bad faith on the
part
of PILMICO.chanrobles virtuallaw libraryred
The limited period specified
in petitioner’s employment contract having been imposed precisely to
circumvent
the constitutional guarantee on security of tenure should, therefore,
be
struck down or disregarded as contrary to public policy or
morals.
To uphold the contractual arrangement between PILMICO and petitioner
would,
in effect, permit the former to avoid hiring permanent or regular
employees
by simply hiring them on a temporary or casual basis, thereby violating
the employee’s security of tenure in their jobs.[27]
Under Section 3, Article
XVI of the Constitution, it is the policy of the State to assure the
workers
to security of tenure and free them from the bondage of uncertainty of
tenure woven by some employers into their contracts of
employment.
The guarantee is an act of social justice. When a person has no
property,
his job may possibly be his only possession or means of livelihood and
those of his dependents. When a person loses his/her job, his
dependents
suffer as well. The worker should therefor be protected and
insulated
against any arbitrary deprivation of his job.[28]
We reject the petitioner’s
general and catch-all submission that its policy for a specific and
limited
period on an “as the need arises” basis is not prohibited by law or
abhorred
by the Constitution; and that there is nothing essentially
contradictory
between a definite period of employment and the nature of the
employee’s
duties.cralaw:red
The petitioner’s reliance
on our ruling in Brent School, Inc. v. Zamora[29]
and reaffirmed in subsequent rulings is misplaced, precisely in light
of
the factual milieu of this case. In the Brent School, Inc. case,
we ruled that the Labor Code does not outlaw employment contracts on
fixed
terms or for specific period. We also ruled that the decisive
determinant
in “term employment” should not be the activity that the employee is
called
upon to perform but the day certain agreed upon by the parties for the
commencement and termination of their employment relationship.
But
we also emphasized in the same case that where from the circumstances
it
is apparent that the periods have been imposed to preclude acquisition
of tenurial security by the employee, they should be struck down or
disregarded
as contrary to public policy and morals. In Romares v. NLRC case,
we cited the criteria under which “term employment” cannot be said to
be
in circumvention of the law on security of tenure, namely:
1) The fixed period of
employment was knowingly and voluntarily agreed upon 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; orchanrobles virtuallaw libraryred
2) It satisfactorily
appears
that the employer and the employee dealt with each other on more or
less
equal terms with no moral dominance exercised by the former or the
latter.[30]
None of these criteria
has been met in this case. Indeed, in Pure Foods Corporation v.
NLRC,[31]
we sustained the private respondents’ averments therein, thus:
[I]t could not be supposed
that private respondents and all other so-called “casual” workers of
[the
petitioner] KNOWINGLY and VOLUNTARILY agreed to the 5-month employment
contract. Cannery workers are never on equal terms with their
employers.
Almost always, they agree to any terms of an employment contract just
to
get employed considering that it is difficult to find work given their
ordinary qualifications. Their freedom to contract is empty and
hollow
because theirs is the freedom to starve if they refuse to work as
casual
or contractual workers. Indeed, to the unemployed, security of
tenure
has no value. It could not then be said that petitioner and
private
respondents “dealt with each other on more or less equal terms with no
moral dominance whatever being exercised by the former over the latter.[32]
We reject the petitioner’s
submission that it resorted to hiring employees for fixed terms to
augment
or supplement its regular employment “for the duration of peak loads”
during
short-term surges to respond to cyclical demands; hence, it may hire
and
retire workers on fixed terms, ad infinitum, depending upon the needs
of
its customers, domestic and international. Under the petitioner’s
submission, any worker hired by it for fixed terms of months or years
can
never attain regular employment status. But then, the petitioner,
through Ms. Cecilia C. Mallari, the Head of Personnel Services of the
petitioner,
deposed that as agreed upon by the Philips Semiconductor (Phils.), Inc.
Workers Union and the petitioner in
their CBA, contractual
employees hired before December 12, 1993 shall acquire regular
employment
status after seventeen (17) months of satisfactory service, continuous
or broken:
5. Q:
What was the response of Philips’ regular employees to your hiring of
contractual
workers in the event of peak loads?chanrobles virtuallaw libraryred
A:
Philip’s regular rank-and-file employees, through their exclusive
bargaining
agent, the Philips Semiconductors (Phils.), Inc. Workers Union
(“Union”),
duly recognized the right of Philips, in its best business judgment, to
hire contractual workers, and excluded these workers from the
bargaining
unit of regular rank-and-file employees.cralaw:red
Thus, it is provided
under the Collective Bargaining Agreement, dated May 16, 1993, between
Philips and the Union that:
ARTICLE I
UNION RECOGNITION
“Section 1.
Employees Covered: The Company hereby recognizes the Union as the
exclusive
bargaining representative of the following regular employees in the
Factory
at Las Piñas, Metro Manila: Janitors, Material Handlers, Store
helpers,
Packers, Operators, QA Inspectors, Technicians, Storekeepers,
Production
Controllers, Inventory Controllers, Draftsmen, Machinists, Sr.
Technician,
Sr. QA Inspectors, Controllers, Sr. Draftsmen, and Servicemen, except
probationary
and Casual/Contractual Employees, all of whom do not belong to the
bargaining
unit.”
A copy of the CBA, dated
May 16, 1993, was attached as Annex “1” to Philip’s Position Paper,
dated
August 30, 1993.cralaw:red
6. Q:
May a contractual employee become a regular employee of the Philips?
A:
Yes. Under the agreement, dated April 6, 1993, between the Union
and Philips, contractual workers hired before 12 December 1993, who
have
rendered seventeen months of satisfactory service, whether continuous
or
broken, shall be given regular status. The service rendered by a
contractual employee may be broken depending on production needs of
Philips
as explained earlier.cralaw:red
A copy of the Minutes
of the Meeting (“Minutes,” for brevity), dated April 6, 1993,
evidencing
the agreement between Philips and the Union has been submitted as Annex
“2” of Philips’ Position Paper.[33]chanrobles virtuallaw libraryred
In fine, under the CBA,
the regularization of a contractual or even a casual employee is based
solely on a satisfactory service of the employee/worker for seventeen
(17)
months and not on an “as needed basis” on the fluctuation of the
customers’
demands for its products. The illogic of the petitioner’s
incongruent
submissions was exposed by the appellate court in its assailed
decision,
thus:
The contention of private
respondent that petitioner was employed on “as needed basis” because
its
operations and manpower requirements are dictated by the volume of
business
from its client and the availability of the basic materials, such that
when the need ceases, private respondent, at its option, may terminate
the contract, is certainly untenable. If such is the case, then
we
see no reason for private respondent to allow the contractual employees
to attain their regular status after they rendered service for
seventeen
months. Indubitably, even after the lapse of seventeen months,
the
operation of private respondent would still be dependent on the volume
of business from its client and the availability of basic
materials.
The point is, the operation of every business establishment naturally
depends
on the law of supply and demand. It cannot be invoked as a reason
why a person performing an activity, which is usually desirable and
necessary
in the usual business, should be placed in a wobbly status. In
reiteration,
the relation between capital and labor is not merely contractual.
It is so impressed with public interest that labor contracts must yield
to the common good.cralaw:red
While at the start,
petitioner was just a mere contractual employee, she became a regular
employee
as soon as she had completed one year of service. It is not
difficult
to see that to uphold the contractual arrangement between private
respondent
and petitioner would, in effect, be to permit employers to avoid the
necessity
of hiring regular or permanent employees. By hiring employees
indefinitely
on a temporary or casual status, employers deny their right to security
of tenure. This is not sanctioned by law.[34]
Even then, the petitioner’s
reliance on the CBA is misplaced. For, as ratiocinated by the
appellate
court in its assailed decision:
Obviously, it is the
express mandate of the CBA not to include contractual employees within
its coverage. Such being the case, we see no reason why an
agreement
between the representative union and private respondent, delaying the
regularization
of contractual employees, should bind petitioner as well as other
contractual
employees. Indeed, nothing could be more unjust than to exclude
contractual
employees from the benefits of the CBA on the premise that the same
contains
an exclusionary clause while at the same time invoke a collateral
agreement
entered into between the parties to the CBA to prevent a contractual
employee
from attaining the status of a regular employee.cralaw:red
This cannot be allowed.cralaw:red
The CBA, during its
lifetime, constitutes the law between the parties. Such being the
rule, the aforementioned CBA should be binding only upon private
respondent
and its regular employees who were duly represented by the bargaining
union.
The agreement embodied in the “Minutes of Meeting” between the
representative
union and private respondent, providing that contractual employees
shall
become regular employees only after seventeen months of employment,
cannot
bind petitioner. Such a provision runs contrary to law not only
because
contractual employees do not form part of the collective bargaining
unit
which entered into the CBA with private respondent but also because of
the Labor Code provision on regularization. The law explicitly
states
that an employee who had rendered at least one year of service, whether
such service is continuous or broken, shall be considered a regular
employee.
The period set by law is one year. The seventeen months provided
by the “Minutes of Meeting” is obviously much longer. The
principle
is well settled that the law forms part of and is read into every
contract
without the need for the parties expressly making reference to it.[35]
On the second and third
issues, we agree with the appellate court that the respondent was
dismissed
by the petitioner without the requisite notice and without any formal
investigation.
Given the factual milieu in this case, the respondent’s dismissal from
employment for incurring five (5) absences in April 1993, three (3)
absences
in May 1993 and four (4) absences in June 1993, even if true, is too
harsh
a penalty. We do agree that an employee may be dismissed for
violation
of reasonable regulations/rules promulgated by the employer.
However,
we emphasized in PLDT v. NLRC[36]
that:chanrobles virtuallaw libraryred
Dismissal is the ultimate
penalty that can be meted to an employee. Where a penalty less
punitive
would suffice, whatever missteps may have been committed by the worker
ought not to be visited with a consequence so severe such as dismissal
from employment. For, the Constitution guarantees the right of
workers
to “security of tenure.” The misery and
pain attendant to the
loss of jobs then could be avoided if there be acceptance of the view
that
under certain circumstances of the case the workers should not be
deprived
of their means of livelihood.[37]
Neither can the conferences
purportedly held between the respondent and the line supervisor be
deemed
substantial compliance with the requirements of notice and
investigation.
We are in full accord with the following ratiocinations of the
appellate
court in its assailed decision:
As to the alleged absences,
we are convinced that the same do not constitute sufficient ground for
dismissal. Dismissal is just too stern a penalty. No less
than
the Supreme Court mandates that where a penalty less punitive would
suffice,
whatever missteps may be committed by labor ought not to be visited
with
a consequence so severe. (Meracap v. International Ceramics
Manufacturing
Co., Inc., 92 SCRA 412 [1979]). Besides, the fact that petitioner
was repeatedly given a contract shows that she was an efficient worker
and, therefore, should be retained despite occasional lapses in
attendance.
Perfection cannot, after all, be demanded. (Azucena, The Labor
Code,
Vol. II, 1996 ed., [p.] 680)
Finally, we are convinced
that it is erroneous for the Commission to uphold the following
findings
of the Labor Arbiter, thus:chanrobles virtuallaw libraryred
“Those dialogues
of the complainant with the Line Supervisor, substantially, stand for
the
notice and investigation required to comply with due process. The
complainant did not avail of the opportunity to explain her side to
justify
her shortcomings, especially, on absences. She cannot now
complain
about deprivation of due process.”
Of course, the power
to dismiss is a formal prerogative of the employer. However, this
is not without limitations. The employer is bound to exercise
caution
in terminating the services of his employees. Dismissals must not
be arbitrary and capricious. Due process must be observed in
dismissing
an employee because it affects not only his position but also his means
of livelihood. Employers should respect and protect the rights of
their employees which include the right to labor. (Liberty Cotton
Mills Workers Union v. Liberty Cotton Mills, Inc., 90 SCRA 391 [1979])chanrobles virtuallaw libraryred
To rule that the mere
dialogue between private respondent and petitioner sufficiently
complied
with the demands of due process is to disregard the strict mandate of
the
law. A conference is not a substitute for the actual observance
of
notice and hearing. (Pepsi Cola Bottling Co., Inc. v. National
Labor
Relations Commission, 210 SCRA 277 [1992]) The failure of private
respondent to give petitioner the benefit of a hearing before she was
dismissed
constitutes an infringement on her constitutional right to due process
of law and not to be denied the equal protection of the laws. The
right of a person to his labor is deemed to be his property within the
meaning of the constitutional guarantee. This is his means of
livelihood.
He cannot be deprived of his labor or work without due process of
law.
(Batangas Laguna Tayabas Bus Co. v. Court of Appeals, 71 SCRA 470
[1976])
All told, the court
concludes that petitioner’s dismissal is illegal because, first, she
was
dismissed in the absence of a just cause, and second, she was not
afforded
procedural due process. In pursuance of Article 279 of the Labor
Code, we deem it proper to order the reinstatement of petitioner to her
former job and the payment of her full backwages. Also, having
been
compelled to come to court to protect her rights, we grant petitioner’s
prayer for attorney’s fees.[38]
IN LIGHT OF ALL THE
FOREGOING, the assailed decision of the appellate court in CA-G.R. SP
No.
52149 is AFFIRMED. The petition at bar is DENIED. Costs
against
the petitioner.cralaw:red
SO ORDERED.cralaw:red
Puno, J.,
(Chairman),
Quisumbing, Austria-Martinez, and Tinga, JJ., concur.cralaw:red
____________________________
Endnotes:
[1]
Penned by Associate Justice Oswaldo D. Agcaoili with Associate Justices
Renato C. Dacudao and Andres B. Reyes, Jr. concurring; promulgated on
October
11, 1999; Rollo, pp. 40-54.
[2]
Rollo, p. 83.chanrobles virtuallaw libraryred
[3]
Id. at 140.
[4]
Id. at 82.
[5]
Id. at 141.
[6]
Id. at 84.
[7]
Id. at 142.
[8]
Id. at 86.
[9]
Id. at 142.
[10]
Id. at 100.
[11]
Id. at 88.chanrobles virtuallaw libraryred
[12]
Exhibit “9-A.”
DESCRIPTION OF
OFFENSES
SCHEDULE OF PENALTIES
1st
2nd
3rd
4th
5th
3.6
a) Habitual tardiness – an employee is
Warning
2 days 3
days
1 mo. DM
tardy or late if he punches in his
time-
susp.
susp.
susp.
card after the start of his work hours.
Tardiness is habitual if an employee is
late four (4) times or more in one
month. For the purpose of counting
violations under Section 9, Rule V,
habitual tardiness shall be considered
as one offense.chanrobles virtuallaw libraryred
b) Absenteeism (AWOL) – Each day
Warning
2 days 3
days
1 mo.
DM
of AWOL shall be considered as
one
susp.
susp. susp
separate offense.
[13]
Rollo, pp. 143-149.
[14]
Id. at 108-122.
[15]
Id. at 157.
[16]
Id. at 60-61.
[17]
Id. at 48-49.chanrobles virtuallaw libraryred
[18]
Romares v. National Labor Relations Commission, 294 SCRA 411 (1998).
[19]
Bernardo v. NLRC, 310 SCRA 186 (1999).chanrobles virtuallaw libraryred
[20]
Pure Foods Corporation v. NLRC, 283 SCRA 133 (1997).
[21]
Leon v. NLRC, 176 SCRA 615 (1989).chanrobles virtuallaw libraryred
[22]
Ibid.chanrobles virtuallaw libraryred
[23]
Id.chanrobles virtuallaw libraryred
[24]
Aurora Land Projects Corporation v. NLRC, 266 SCRA 48 (1997).
[25]
Romares v. NLRC, supra.chanrobles virtuallaw libraryred
[26]
Supra at note 18.
[27]
Id. at 420.chanrobles virtuallaw libraryred
[28]
Philippine Geothermal, Inc. v. NLRC, 189 SCRA 211 (1990).
[29]
181 SCRA 702 (1990).chanrobles virtuallaw libraryred
[30]
Supra at note 18.
[31]
Supra at note 20.
[32]
Id. at 142.chanrobles virtuallaw libraryred
[33]
Rollo, pp. 59-60.
[34]
Id. at 49-50.
[35]
Id. at 46-47.chanrobles virtuallaw libraryred
[36]
303 SCRA 9 (1999).
[37]
Id. at 15.chanrobles virtuallaw libraryred
[38]
Rollo, pp. 51-53.
chanrobles virtuallaw libraryred |