February 2011 - Philippine Supreme Court Resolutions
Philippine Supreme Court Resolutions
[G.R. No. 178679 : February 14, 2011]
JUANITO C DELA TORRE V. JAPAN OVERSEAS CONSULTANTS CO., LTD., REPRESENTED BY YOSHITOSHI KOBAYASHI, PRESIDENT; ET AL.
G.R. No. 178679 (Juanito C dela Torre v. Japan Overseas Consultants Co., Ltd., represented by Yoshitoshi Kobayashi, President; et al.). - Before us is a petition for certiorari filed by Juanito dela Torre, ascribing grave abuse of discretion on the part of the Court of Appeals (CA) for dismissing his petition for failure to comply with Section 3, Rule 46 of the Rules of Court. His petition filed with the CA assailed the decision of the National Labor Relations Commission (NLRC), dismissing his complaint for illegal dismissal.
The antecedents are:
In 1995, upon an invitation of the government through the Department of Public Works and Highways (DPWH), the consulting firm of Japan Overseas Consultants Co., Ltd. of Japan (JOC), in association with three (3) local consulting firms, Proconsult, Inc., Techniks Group Corporation, and TCGI Engineers (TCGI), entered into an Agreement for Consultancy Services with the government in an Asian Development Bank-Assisted Sixth Road Project in Kalibo, Aklan. As called for in the Terms of Reference of the Project, JOC, being the international consultant, was designated as lead consultant responsible for the overall management and successful prosecution of the project. Toshiro Toratani was designated as Team Leader. Each of the local firms fielded their respective Resident Engineer as part of the management team. Herein petitioner was nominated by TCGI as its Resident Engineer for 6 months, starting on September 1, 2003, which was extended.
In a Memorandum dated May 6, 2004, JOC asked TCGI to relieve petitioner from his post as Resident Engineer for "his lack of administrative leadership in administering the affairs of the project and his dealing with his subordinates."[1] When TCGI did not act on the aforesaid Memorandum, respondent JOC again wrote a letter dated May 21, 2004, relieving petitioner from his post.
On May 24, 2004, petitioner filed a complaint for illegal dismissal against JOC, represented by its President, Yoshitoshi Kobayashi, before the NLRC, Sub-Regional Arbitration, Branch No. VI, Aklan Provincial Office, Kalibo, Aklan.
On June 16, 2005, the Labor Arbiter rendered a decision finding JOC guilty of illegal dismissal. It was ordered to immediately reinstate complainant to his former position as Resident Engineer and to pay complainant full backwages in the amount of P413,725.00 and attorney�s fees in the sum of P41,372.50
Respondent JOC appealed to the NLRC.
On July 21, 2005, petitioner filed a motion for writ of execution on the reinstatement aspect of the decision, which respondent JOC opposed. After the denial of respondent JOC�s motion to quash the writ of execution, petitioner immediately filed a Motion for Alias Writ of Execution.
On September 30, 2005, the Labor Arbiter issued an Alias Writ of Execution to reinstate petitioner to his former position and to collect his backwages.
On the appeal, the NLRC, initially, dismissed the appeal on the ground that it was filed out of time. However, on motion for reconsideration, the NLRC granted the same on equitable grounds. It reversed the Labor Arbiter�s decision and found that there was no employer-employee relationship between the parties.
As earlier mentioned, petitioner�s recourse to the CA was dismissed for his failure to state material dates and to attach substantial pleadings, in violation of Section 3, Rule 46 of the Rules of Court.[2]
On July 23, 2007, petitioner filed the instant petition under Rule 65. Respondent JOC was required to comment in our Resolution dated August 15, 2007.[3]
The aforesaid Resolution was returned unserved, with the postal carrier�s notation �moved.� The Court required petitioner to furnish the Court with the new and complete address of respondent JOC.[4] Despite petitioner�s compliance by submitting respondent JOC�s address in Japan and the office address of its local representative,[5] service of Court Resolutions proved futile.
Thus, on October 14, 2009, the Court resolved to consider respondent JOC as having deemed waived its filing of Comment and further resolved to submit the case for resolution based on the pleadings filed.
Notably, petitioner filed the instant petition under Rule 65, which is the wrong mode of appeal. It is elementary in remedial law that the use of an erroneous mode of appeal is cause for dismissal of the petition for certiorari.[6] When petitioner received the CA Resolution denying his motion for reconsideration, he had fifteen (15) days from receipt within which to file a petition for review on certiorari under Rule 45 of the Rules of Court. Section 2 thereof also allows petitioner to file within the 15-day period, a motion for extension of time of thirty (30) days within which to file such petition. The CA Resolution, which dismissed outright the petition before it on technical ground, partakes of the nature of a final disposition of the case. Hence, the appropriate remedy would have been a petition for review on certiorari under Rule 45, not a petition for certiorari under Rule 65. The extra-ordinary remedy of certiorari under Rule 65 is not, and cannot be, a substitute for a long lost remedy of appeal, especially if the loss is occasioned by petitioner�s own neglect or error in the choice of remedies.[7]
Be that as it may, the petition has no merit.
After a careful perusal of the petition, with all the annexes/pleadings attached, we sustain the decision of the NLRC that no employer-employee relationship existed between the parties. In the absence of this indispensable precondition, the allegation of illegal dismissal has no leg to stand on.[8]
In determining the existence of employer-employee relationship, case law has applied the four-fold test, to wit: (a) the selection and engagement of the employee; (b) the payment of wages; (c) the power of dismissal; and (d) the employer�s power to control the employee on the means and methods by which the work is accomplished.[9] Among these, it is the control test which is the most significant indicator.
Petitioner contends that respondent clearly passed the test to hold it liable for illegal dismissal. Its power to control was quite explicit. It was respondent JOC which approved his nomination as Resident Engineer and had the final say on the replacement or dismissal of consultants/resident engineers. Petitioner directly reported to Toshito Toratani, the team Leader, who gave out instructions on how the construction project should be carried out. Moreover, respondent JOC failed to accord petitioner procedural due process.
Petitioner�s contentions are untenable.
The records bear out that petitioner was an employee of TCGI, which was one of the 3 local consulting firms working in the project. He was nominated by TCGI as its Resident Engineer in this project. On the basis of this nomination, JOC sent a letter dated July 1, 2003 to Subair S. Diron, Project Director for Visayas and Mindanao, Asian Development Bank Project Management Office, DPWH, for approval of the nomination. Soon after petitioner's nomination was accepted, TCGI sent him the contract specifying his work scope and contract package, providing a compensation of P30,000.00 per month.[10] Thereafter, TCGI started mobilizing petitioner as its Resident Engineer.
Considering that respondent JOC found petitioner's behavior rather inimical to the interest of this particular project, it merely requested TCGI to relieve him from the position and/or replace him with another person as its Resident Engineer. Unlike in illegal dismissal cases where employment relationships are severed, petitioner remained an employee of TCGI. As contended by respondent JOC, petitioner could very well be assigned to another project of TCGI. As to the payment of wages, petitioner failed to adduce evidence that his salaries were directly paid by respondent JOC. He only proffered self-serving assertions which were unsubstantiated.
Understandably, as Team Leader of the project, Toshiro Toratani had a say on how the construction project should be carried out. His actions were not done by him alone because the Terms of Reference provide that respondent JOC should work in association with the 3 local firms. Thus, when respondent JOC asked for petitioner's relief, which was based on valid grounds, it was also the act of the TCGI Engineers. Indeed, no employer-employee relationship existed between petitioner and respondent JOC.
IN VIEW OF THE FOREGOING, the petition is DISMISSED.
SO ORDERED.
Very truly yours,
MA. LUISA L. LAUREA
Clerk of Court
By:
(Sgd.) TERESITA AQUINO TUAZON
Asst. Clerk of Court
Endnotes:
[1] He was complained of going out on drinking sprees with his staff and getting drunk, not marking absences of staff, and inciting his staff to a fistfight in one incident, instead of pacifying them; rollo, p. 40.[2] Id. at 165.
[3] Id. at 172.
[4] Resolution dated November 21, 2007; id. at 176.
[5] Id. at 177, 181.
[6] Nippon Paint Employees Union-Olalia v. Court of Appeals, 485 Phil. 675, 681 (2004).
[7] New Ever Marketing, Inc. v. Court of Appeals, 501 Phil. 575, 584 (2005).
[8] Cornista-Domingo v. NLRC, G.R. No. 156761, October 17, 2006, 504 SCRA 659, 671 (2006).
[9] Lopez v. Bodega City, G.R. No. 155731, September 3, 2007, 532 SCRA 56, 65-66.
[10] Rollo, p. 113.
