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[G.R. No. 116781.November 15, 1999]

TOMAS LAO CONSTRUCTION, et al. vs. NLRC, et al.

SECOND DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated NOV 15, 1999.

G.R. No. 116781(Tomas Lao Construction, et al. vs. NLRC, et al.)

In our Decision of 5 September 1997 we affirmed the Decision of the National Labor Relations Commission (NLRC) of 5 August 1994. On 13 October 1997 petitioners filed a motion for reconsideration of our Decision. Pending resolution of the motion this Court inadvertently remanded the case to the Court of Appeals. Consequently, we recalled the records.

In their individual complaints before the Labor Arbiter private respondents Mario O. Labendia Sr., et al., construction workers hired in different capacities for various periods, claimed they were illegally dismissed by petitioners Tomas Lao Construction (TLC), Thomas and James Developers (T & J) and LVM Construction Corporation (LVM), ¹ Altogether informally referred to as the "Lao Group of Companies." for which private respondents alternatively worked.

On 10 November 1992 Labor Arbiter Gabino A. Velasquez Jr. dismissed the complaints after finding that private respondents were project employees whose employments could be terminated upon completion of the projects or project phase for which they were hired. The Labor Arbiter however granted each employee separation pay of P6,435.00 computed at one half (1/2) month salary for every year of service, uniformly rounded to five (5) years.

In its Decision of 5 August 1994 the 4th Division of the NLRC reversed the Labor Arbiter. It declared that private respondents were regular employees who were dismissed without just cause and denied due process. The NLRC also overruled the Labor Arbiter in the fixing of the terms of employment of complainants uniformly at five (5) years since their periods of employment as alleged in their complaints were never refuted by petitioners. In granting monetary awards to complainants, the NLRC disregarded the veil of corporate fiction and treated the three (3) corporations as forming only one (1) entity on the basis of the admission of petitioners that "the three (3) operated as one (1) intermingling and commingling resources, including manpower facility."

Petitioners came to us on certiorari questioning the reversal by the NLRC of the Labor Arbiter's Decision.

����������� On 5 September 1997 we dismissed the petition and affirmed the 5 August 1994 Decision of the NLRC. We held that private respondents were regular employees who were illegally dismissed. The repeated re-hiring and the continuing need for private respondents' services over a long span of time (the shortest, at seven [7] years) undeniably made them regular employees. Thus, we ordered petitioners to reinstate private respondents to their former positions without loss of seniority rights and other privileges with full back wages, inclusive of allowances, computed from the time compensation was withheld up to the time of actual reinstatement. Moreover, we held that in the event reinstatement was no longer feasible, petitioners were directed to pay private respondents separation pay equivalent to one (1) month salary for every year of service, a fraction of at least six (6) months being considered one (1) year in the computation thereof, plus full back wages from the time compensation was withheld until the finality of the Decision.

Furthermore, we declared that since the illegal dismissal was made in 1990 or after the effectivity of the amendatory provisions of RA 6715 on 21 March 1989, private respondents' back wages should be computed on the basis of Art. 279 of the Labor Code which provides that "[a]n employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full back wages, 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."

In the instant motion for reconsideration, petitioners reiterate their arguments in the main petition which were already considered in our Decision. Petitioners argue that this Court erred in awarding full back wages to private respondent Leo Surigao who was terminated in 1978, or 11 years before the effectivity of the amendatory provisions of RA 6715. They contend that there is nothing in RA 6715 which provides for its retroactive application. They further claim that at most the Court should have awarded him back wages for a three-year period only consistent with the ruling in Mercury Drug Co., Inc. v. CIR, 56 SCRA 694, which was the doctrine applicable prior to the effectivity of the amendatory provisions of RA 6715. Private respondent Surigao supposedly filed a complaint in 1990 only "to ride the bandwagon" when co-private respondents, in an act of vengeance against petitioners for their dismissal, filed actions with the labor court.

In their comment to petitioners' motion for reconsideration private respondents allege that Surigao was not dismissed in 1978 but on 15 October 1990 as the NLRC had established. Thus, they contend that since the cause of action in an illegal dismissal case accrues at the time of dismissal, Surigao's right against petitioners accrued in 1990, after the effectivity of RA 6715.

The Solicitor General maintains a position consistent with petitioners. He manifests that on the basis of this Court's findings, private respondent Surigao ceased to be an employee of petitioners in 1978; consequently, his cause of action has already prescribed based on Art. 291 of the Labor Code which provides that "(a)ll money claims arising from employer-employee relations accruing during the effectivity of this Code shall be filed within three (3) years from the time the cause of action accrued; otherwise, they shall be forever barred."

We cannot sustain the contention of petitioners that the cause of action of Leo Surigao has already prescribed. Indeed, in our Decision we mentioned that private respondent Leo Surigao was employed as a payloader operator from March 1975 to January 1978 at P100.00/day. ² Promulgated on 5 September 1997, p. 2. However, the records show and the NLRC was able to establish in its Decision of 5 August 1994 ³ Rollo, pp. 36-37. that Leo Surigao worked with the Lao Group of Companies from 1 March 1975 to 15 January 1978, then from 16 January 1985 until he was illegally dismissed on 16 October 1990. In fact, in their Answer/Position Paper before the Labor Arbiter dated 14 August 1992, ⁴ Id., pp. 183 and 214. petitioners admitted that private respondent Leo Surigao was employed: (a) from January 1986 to March 1986 in the construction of the Allen-Rosario Road Project of petitioner T & J; (b) from May 1986 to February 1988 in the construction of the Bantayan-Laoang Road of petitioner LVM; and, (c) from April 1988 to 15 October 1990 in the construction of the Rawis-Catubig Road Project of LVM. Unquestionably, private respondent Surigao continuously worked for petitioners from 1986 to 1990 thus making the amendatory provisions of RA 6715 applicable to him.

It must be stressed that even assuming that the allegation of prescription by petitioners in their motion for reconsideration is correct, they are already estopped from raising it because prescription cannot be raised by any party for the first time in a motion for reconsideration.

WHEREFORE, the motion for reconsideration of the Court's Decision of 5 September 1997 is DENIED for failure to raise any substantial argument to merit the reversal being sought. The Decision is however CLARIFIED to embody the complete inclusive dates of Leo Surigao's employment with petitioners, to read as follows: (i) Leo Surigao, payloader operator, from March 1975 to January 1978 and from January 1986 to October 1990 at P100/day.

SO ORDERED.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG

Acting Div. Clerk of Court

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