Pentagon International Shipping Services, Inc. vs. Court of Appeals G.R. No. 169158 July 1, 2015
ISSUE: Whether there is a valid substitution of the manning agent from Pentagon to I DA Inter-Phil.? RULING No. Rule I, Book III of the Rules and Regulations Governing Overseas Employment states the following: Section 2. Requirements for Accreditation. An agency applying for the accreditation of its principals or projects shall submit the following: xxxx b. For a Manning Agency for its Principals (1) Authenticated special power of attorney and manning agreement; (2) Crew complement and wages; (3) List of vessels and their particulars; and (4) Other documents which the Administration may find necessary. A local manning agency seeking accreditation of its foreign principal is mandated to submit the requirements listed under Section 2. While the list is not exhaustive, the POEA identified the foremost requisite to be the authenticated special power of attorney a nd manning agreement. The law clearly mandates that the special power of attorney and manning agreement should be authenticated, save only when the authorized officials of both the principal or hiring company and its local agent signed the document in the presence of any member of the POEA Directorate or duly designated officers of the POEA. The accreditation of a principal may be transferred to another agency provided that transfer shall not involve any diminution of wages and benefits of workers. The transferee agency in these instances shall comply with the requirements for accreditation and shall assume full and complete responsibility to all contractual obligations of the principals to its workers originally recruited and processed by the former a gency. Prior to the transfer of accreditation, the Administration shall notify the previous agency and principal of such application. The foregoing rules are clear to the effect that before a transfer of accreditation can be effected, the transferee agency should likewise have to comply with the requirements for accreditation 21 contained in Section 2. The POEA can act on the transfer of accreditation only after all the requirements shall have been submitted. In light of the foregoing, there was no effective transfer of agency from Pentagon to JDA Inter-Phil. Even assuming arguendo that JDA Inter-Phil did not withdraw its application for accreditation with the POEA, there was
still no valid transfer of ag ency to speak of in the first place because JDA Inter-Phil did not submit the required authenticated special power of attorney and manning agreement. The minutes of the October 9, 1998 meeting could not, by any stretch of the imagination, supplant this mandatory requirement. Verily, the minutes of any meeting are simply the notes or written record of the meeting, which usually describe what transpire during the meeting, identify the attendees, and present the statements and related responses or resolutions of the issues discussed. Considering that the minutes of the meeting neither contained in an unequivocal manner the important and distinct elements of a special power of attorney and manning agreement, nor were the minutes duly authenticated as required under the law, Pentagon's insistence upon an effective substitution must fail. To reiterate, the special power of attorney and manning agreement were necessary for the validity or enforceability of the transfer of accreditation. Although the Court does not preclude the possibility that, as Pentagon posits, JDA Inter-Phil had really agreed to the transfer of accreditation, it remains that the agreement to do so did not ultimately come to fruition. It cannot but hold that the agreement reached during the meeting was only a preliminary step in the transfer of accreditation, and would not have standing in the POEA for the purpose intended. It is relevant to observe that Pentagon cannot feign ignorance of Section 10, paragraph 2, of the Migrant Workers' Act of 1995 to the effect that its liabilities would continue during the entire period or duration of the employment contract, and would not be affected by any substitution, amendment or modification of the contract made either locally or in a foreign country. The provisions of the POEA Rules and Regulations to the effect that the manning agreement extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to the recruitment agreement are also clear enough. As such, Pentagon is not exempt from its liabilities and responsibilities towards Madrio and Rubiano Hongkong & Shanghai Banking Corporation et al vs. NLRC G.R.No. 156635, January 11, 2016
ISSUE: Whether the strike was lawfully conducted and whether the petitioners were illegally dismissed. RULING: Non-compliance with Article 263 of the Labor Code renders a labor strike illegal The right to strike is a constitutional and legal right of all workers because the strike, which seeks to advance their right to improve the terms and conditions of their employment, is recognized as an effective weapon of labor in their struggle for a decent existence. However, the right to strike as a means for the
attainment of social justice is never meant to oppress or destroy the employers. Thus, the law prescribes limits on the exercise of the right to strike. Article 263 of the Labor Code specifies the limitations on the exercise of the right to strike. The procedural requirements for a valid strike are, therefore, the following, to wit: ( 1) a notice of strike filed with the DOLE at least 30 days before the intended date thereof, or 15 days in case of ULP; (2) a strike vote approved by the majority of the total union membership in the bargaining unit concerned, obtained by secret ballot in a meeting called for that purpose; and (3) a notice of the results of the voting at least seven days before the intended strike given to the DOLE. These requirements are mandatory, such that non-compliance therewith by the union will render the strike illegal. According to the CA, the petitioners neither filed the notice of strike with the DOLE, nor observed the coolingoff period, nor submitted the result of the strike vote. Moreover, although the strike vote was conducted, the same was done by open, not secret, balloting, in blatant violation of Article 263 and Section 7, Rule XIII of the Omnibus Rules Implementing the Labor Code. It is not amiss to observe that the evident intention of the requirements for the strike-notice and the strike-vote report is to reasonably regulate the right to strike for the attainment of the legitimate policy objectives embodied in the law. As such, the petitioners committed a prohibited activity under Article 264(a) of the Labor Code, and rendered their strike illegal. Commission of unlawful acts during the strike further rendered the same illegal Good faith did not avail because of the patent violation of Article 263 of the Labor Code The finding on the illegal strike did not justify the wholesale termination of the strikers from employment Jennifer Lagahit vs. Pacific Concord Container Lines/ Monette Cuenca G.R.No. 177680,
ISSUE:
January 13, 2016
RULING
Did the petitioner resign as sales manager of Pacific Concord? Did Pacific Concord have sufficient grounds to terminate her for breach of trust and confidence under Article 282 of the Labor Code?
In cases of unlawful dismissal, the employer bears the burden of proving that the termination was for a valid or authorized cause, but before the employer is expected to discharge its burden of proving that the dismissal was legal, the employee must first establish by substantial evidence the fact of her dismissal from employment. In this case, the petitioner proved the overt acts committed by the respondents in abruptly terminating her employment through the text messages sent by Cuenca to the petitioner and her husband, as well as the notices distributed to the clients and published in the Sun Star. It is notable that the respondents did not deny or
controvert her evidence on the matter. Thereby, she showed Pacific Concord’s resolve to terminate her employment effective November 8, 2002. As a rule, the employer who interposes the resignation of the employee as a defense should prove that the employee voluntarily resigned.40 A valid resignation is the voluntary act of an employee who finds herself in a situation where she believes that personal reasons cannot be sacrificed in favor of the exigency of the service and that she has no other choice but to disassociate herself from employment. The resignation must be unconditional and with a clear intention to relinquish the position. Consequently, the circumstances surrounding the alleged resignation must be consistent with the employee’s intent to give up the employment. In this connection, the acts of the employee before and after the resignation are considered to determine whether or not she intended, in fact, to relinquish the employment. The facts and circumstances before and after the petitioner’s severance from her employment did not show her resolute intention to relinquish her job. Indeed, it would be unfounded to infer the intention to relinquish from her letter, which, to us, was not a resignation letter due to the absence therefrom of anything evincing her desire to sever the employer-employee relationship. The letter instead presented her as a defenseless employee unjustly terminated for unknown reasons who had been made the subject of notices and flyers informing the public of her unexpected termination. It also depicted her as an employee meekly accepting her unexpected fate and requesting the payment of her backwages and accrued benefits just to be done with the employer. Lagahit did not breach her employer’s trust; her dismissal was, therefore, illegal To justify the dismissal of an employee, the employer must, as a rul e, prove that the dismissal was for a just cause, and that the employee was afforded due process prior to dismissal. As a complementary principle, the employer has the onus of proving the validity of the dismissal with clear, accurate, consistent, and convincing evidence. The employer’s case succeeds or fails on the strength of its evidence, not on the weakness of that adduced by the employee, in keeping with the principle that the scales of justice should be tilted in favor of the latter in case of doubt in the evidence presented by them. Article 282(c) of the Labor Code authorizes an employer to dismiss an employee for committing fraud, or for willful breach of the trust reposed by the employer. However, loss of confidence is never intended to provide the employer with a blank check for terminating its employee. For this to be a valid ground for the termination of the employee, the employer must establish that: (1) the employee must be holding a position of trust and confidence; and (2) the act complained against would justify the loss of trust and confidence. There are two classes of employees vested with trust and confidence. To the first class belong the managerial
employees or those vested with the powers or prerogatives to lay down management policies and to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees or effectively recommend such managerial actions. The second class includes those who in the normal and routine exercise of their functions regularly handle significant amounts of money or property. Cashiers, auditors, and property custodians are some of the employees in the second class. The petitioner discharged the following duties and responsibilities as sales manager. Her position as sales manager did not immediately make the petitioner a managerial employee. The actual work that she performed, not her job title, determined whether she was a managerial employee vested with trust and confidence. Her employment as sales manager was directly related with the sales of cargo forwarding services of Pacific Concord, and had nothing to do with the implementation of the management’s rules and policies. As such, the position of sales manager came under the second class of employees vested with trust and confidence. At any rate, the employer must present clear and convincing proof of an actual breach of duty committed by the employee by establishing the facts and incidents upon which the loss of confidence in the employee may fairly be made to rest. The required amount of evidence for doing so is substantial proof. With these guidelines in mind, we cannot hold that the evidence submitted by the respondents (consisting of the three affidavits) sufficiently established the disloyalty of the petitioner. The affidavits did not show how she had betrayed her employer’s trust. Considering that the petitioner’s duties related to the sales of forwarding services offered by 25 Pacific Concord, her calling other forwarding companies to inquire for vacant positions did not breach the trust reposed in her as sales manager. Such act, being at worst a simple act of indiscretion, did not constitute the betrayal of trust that merited the extreme penalty of dismissal from employment.
Alumamay Jamias et al vs. NLRC
ISSUE: Were the petitioners regular or project employees of Innodata?
G.R. NO. 159350,
Whether or not Villa's appeal should be treated as an unsigned pleading because she had accompanied her appeal with the same verification attached to her position paper. Whether or not petitioner did not admit Villa back to work.
March 9, 2016
RULING: A fixed period in a contract of employment does not by itself signify an intention to circumvent Article 280 of the Labor Code
The provision contemplates three kinds of employees, namely: (a) regular employees; (b) project employees; and (c) casuals who are neither regular nor project employees. The nature of employment of a worker is determined by the factors provided in Article 280 of the Labor Code, regardless of any stipulation in the contract to the contrary. Thus, in Brent School, Inc. v. Zamora, we explained that the clause referring to written contracts should be construed to refer to agreements entered into for the purpose of circumventing the security of tenure. Obviously, Article 280 does not preclude an agreement providing for a fixed term of employment knowingly and voluntarily executed by the parties. A fixed term agreement, to be valid, must strictly conform with the requirements and conditions provided in Article 280 of the Labor Code. The test to determine whether a particular employee is engaged as a project or regular employee is whether or not the employee is assigned to carry out a specific project or undertaking, the duration or scope of which was specified at the time of his engagement. There must be a determination of, or a clear agreement on, the completion or termination of the project at the time the employee is engaged. Otherwise put, the fixed period of employment must be 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, or it must satisfactorily appear that the employer and employee dealt with each other on more or less equal terms with no moral dominance whatsoever being exercised by the former on the latter. For one, it would be unusual for a company like Innodata to undertake a project that had no relationship to its usual business. Also, the necessity and desirability of the work performed by the employees are not the determinants in term employment, but rather the “day certain” voluntarily agreed upon by the parties. In fine, the employment of the petitioners who were engaged as project employees for a fixed term legally ended upon the expiration of their contract. Their complaint for illegal dismissal was plainly lacking in merit.
Labor BAHIA SHIPPING SERVICES, INC.
Standards
Whether or not the CA correctly affirmed the NLRC ruling holding respondent to be entitled to permanent total disability benefits.
-
and/or V-SHIP NORWAY and/or
Total disability
CYNTHIA C.
Benefit
MENDOZA, petitioners, vs. CARLOS L. FLORES,
The CA is correct in holding that respondent is deemed to be suffering from a permanent total disability. A
JR.
temporary total disability only becomes permanent when so declared by the company physician within the
G.R. No. 207639. July
periods he is allowed to do so, or upon the expiration of the maximum 240-day medical treatment period
1, 2015.
without a declaration of either fitness to work or the existence of a permanent disability. In the p resent case, while the initial 120-day treatment or temporary total disability period was exceeded, the companydesignated doctor duly made a declaration well within the extended 240-day period that the petitioner was fit to work.
Records reveal that after respondent was repatriated on April 18, 2009, he underwent continuous medical care from the company-designated physician. He was even given an interim disability rating of Grade 7 (moderate residual or disorder) on July 17, 2009,27 and thereafter, went through further tests and procedures. However, after October 12, 2009, respondent's treatment stopped without him recovering from his ailment. Notably, the company-designated physician neither issued to respondent a fit-to-work certification nor a final disability rating on or before December 14, 2009, the 240th day since respondent's repatriation. Case law instructs that, if after the lapse of the 240-day period, the seafarer is still i ncapacitated to perform his usual sea duties and the company-designated physician had not yet declared him fit to work or permanently disabled, whether total or permanent, the conclusive presumption that the seafarer is totally and permanently disabled arises. Perforce, it is but proper to hold that respondent was permanently and totally disabled, and hence, entitled to the corresponding benefits stated under the CBA. Labor Standards Reliefs for Illegal
1. Whether respondent was illegally dismissed
Dismissal
2. Whether the Quitclaim and Release was valid
Under Section 10 of R.A. 8042, workers who are illegally terminated are entitled to their salaries for the unexpired portion of their employment contracts or for three months for every year of the unexpired term, whichever is less, in addition to the reimbursement of their placement fee with interest at the rate of 12% per annum.
This applies only to an illegally dismissed overseas contract worker or a worker dismissed from overseas employment without just, valid or authorized cause as defined by law or contract. Respondent was not illegally dismissed.
Article X of the POEA-approved Contract of Employment, as well as the second contract given to respondent for signing upon her arrival in Ethiopia, provides: “
In such an event[,] the Employee shall be entitled to his/her salary and allowances only up to the date of termination specified in the said notice of termination. However, the employee shall be fully engaged in his/her duty in the period
notified and up to the las t date of termination.” Based on the provision, the Contract of Employment may be terminated by ei ther party for cause or at any time for no cause, as long as a three-month notice is given to the other party. Stipulations providing that either party may terminate a contract even without cause are legitimate if exercised in good faith. The misunderstanding on respondent’s master’s degree was not the r esult of bad faith on the part of either
party. The demotion did not materialize, and respondent maintained her salary and benefits until she was repatriated.
The Court did not impute bad faith on the part of Alemaya University in the exercise of its right to terminate the Contract of Employment at will.
It is well to note that the right to terminate the Contract of Employment at will was also available to respondent, who exercised that right when she signified her change of mind and rejected the job at the Internal Audit Department.
The NLRC was correct in finding that the logical conclusion is that the parties had agreed to let her employment continue in the university under the Contract of Employment in a different capacity. When respondent later decided that she did not want the new job for personal reasons, she exercised her right to terminate the Contract of Employment.
Where a person executing a waiver or quitclaim has done so voluntarily with a full understanding of its terms and conditions, coupled with the other person's payment of credible and reasonable consideration, the transaction is valid and binding.
Respondent admits that she had a full understanding of the terms and conditions of the Quitclaim and Release and voluntarily signed it. The bone of contention is the reasonableness of the amount of USD 900 as consideration for the waiver of all other purported claims against petitioner. Since respondent was not illegally dismissed, she is not entitled to salaries in excess of the amount given.
CA decision and resolution were reversed and set aside and NLRC decision was reinstated. WON the dismissal by reason of loss of trust and confidence is lawful
: (1.) YES. Vilches was lawfully terminated. Loss of trust and confidence will validate an employee's dismissal only upon compliance with certain requirements, namely: (1) the employee concerned must be holding a position of trust and confidence; and (2) there must be an act that would justify the loss of trust and confidence. In order to constitute a just cause for dismissal, the act complained of must be work-related
such as would show employee concerned to be unfit to continue working for the employer.
In the present case, there is no doubt that Vilches held a position of trust and confidence as respondents' Physical Security Department Manager responsible for the department's operation and administration and with about 800 people under his charge.
Secondly, his failure to produce the licenses of the 100 security personnel for two years and to account for the money received is definitely an important aspect of his work as Free Port’s Department Manager. He
failed to perform what he had represented or what was expected of him, thus, respondents had a valid reason in losing confidence in him which justified his termination. Further, failed to account and produce the licenses of the FSC Security personnel after two (2) years from the date of issuance of the check. This act alone by Vilches constitutes gross misconduct and disobedience which is already a sufficient ground for his dismissal.
(2.) He could not just place the blame on Col. Gerangco when it was him who had the obligation to secure the licenses as represented. Moreover, there was no showing that Vilches had exerted efforts for the immediate release of the licenses.
Although he sent demand letters to Col. Gerangco for the return of the amount, it was sent only when he knew of the administrative investigation against him instead of acting on the matter upon having knowledge
of the stop payment order of COA. Such belated action showed his lack of fidelity to his duty and his breach of the trust and confidence reposed on him by Free Port. Labor Relations -
Whether the LA’s Decision has attained finality in light of petitioner’s direct filing of its appeal before
the NLRC instead of the Regional Arbitration Branch XII in Cotabato City.
Requirements to Perfect :
Appeal
Art. 218 on the Powers of the Commission provides that it shall “promulgate rules and regulations governing the hearing and disposition of cases before it and its regional branches, as well as those pertaining to its internal functions and such rules and regulations as may be necessary to carry out the purposes of the Code.”
Rule VI, Section 3 of the 1999 Rules of Procedure of the NLRC that were in effect when petitioner appealed from LA’s Decision provides for the requisites that must be satisfied for an appeal from the LA’s decision may be perfected:
(a) The appeal shall be filed within the reglementary period; under oath with proof of payment of the required appeal fee and the posting of a cash or surety bond; accompanied by a memorandum of appeal which shall state the grounds relied upon and the arguments in support thereof; the relief prayed for; and a statement of the date when the appellant received the appealed decision, order or award and proof of service on the other party of such appeal. (b) The appellee may file with the Regional Arbitration Branch, Regional Office or in the POEA where
the appeal was filed, his answer or reply to appellant's memorandum of appeal, not later than 10 calendar days from receipt thereof. Failure on the part of the appellee who was properly furnished with a copy of the appeal to file his answer or reply within the said period may be construed as a waiver on his part to file the same. (c) Subject to the provisions of Article 218, once the appeal is perfected in accordance with these rules, the Commission may limit itself to reviewing and deciding specific issues that were elevated on appeal.
Rule VI, Section 4 of the same rules stipulates that appeal shall be filed with the respective Regional Arbitration Branch, the Regional Office, or the Philippine Overseas Employment Administration where the case was heard and decided.
The CA was correct in saying that “the memorandum on appeal must be filed with the Regional
Arbitration Branch which rendered the decision sought to be appealed." Thus, "no appeal before NLRC could have been perfected." The logical consequence is that the LA’s Decision "has attained finality."
While the Court held that petitioner violated the rule on venue for filing an appeal, a mere procedural lapse in the venue where petitioner filed its Memorandum of Appeal is not fatal to its cause. Since respondent is estopped for failing to raise the issue of jurisdiction while petitioner's appeal was pending before the NLRC, respondent is bound by her inaction and cannot belatedly invoke the issue of jurisdiction on certiorari before the Court of Appeals.
The Court has held that "[a]lthough the issue of jurisdiction may be raised at any stage of the proceedings as the same is conferred by law, it is nonetheless settled that a party may be barred from raising it on ground of laches or estoppel."
A party cannot invoke the jurisdiction of a court to secure affirmative relief against his opponent and,
after obtaining or failing to obtain such relief, repudiate or question that same jurisdiction. After voluntarily submitting a cause and encountering an adverse decision on the merits, it is too late for the loser to question the jurisdiction or power of the court.
Also, the error of petitioner pertains to the place for filing appeals and not the requisites for perfecting an appeal which Rule VI, Section 3 enumerates as:
(1) Filing within the applicable reglementary period as provided by Section 1; (2) That the appeal was under oath; (3) That the appeal fee must have been paid; (4) That the appeal bond must have been posted; (5) A memorandum of appeal which states: a.
the grounds relied upon and the arguments in support of the appeal;
b.
the relief sought; and
c.
a statement of the date when the assailed decision was received; and
(6) Proof of service of the appeal on the adverse party.
The same rules allow for the liberal application of procedural rules. In Rule VII, Section 10: “The rules of
procedure and evidence prevailing in courts of law and equity shall not be controlling and the Commission shall use every and all reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law procedure, all in the interest of due process.”
As the agency statutorily vested with jurisdiction over petitioner's appeal, petitioner could very easily have mistaken that the filing of its Memorandum of Appeal was rightly made before the NLRC. The NLRC could have very easily advised petitioner if there was anything irregular with its direct filing of a Memorandum of Appeal.
The matter of the propriety of the NLRC's assumption of jurisdiction was never raised by respondent before the Commission. Even after petitioner's appeal had been initially decided against her and she filed her MR, respondent totally overlooked this matter.
Respondent cannot profit from her own inaction. She actively participated in the proceedings before the NLRC without the slightest indication that she found anything objectionable to the conduct of those proceedings. NLRC’s findings that the requisites of substantive and procedural due process were
satisfied in terminating respondent's employment now stand undisturbed.
Petition is granted, CA decision was reversed and set aside and NLRC decision was reinstated.
1. Whether MAPFRE is a bonding company accredited by both the NLRC and the Supreme CourtYES 2. Whether Petitioner Bravo’s signature in the indemnity agreement constitutes his personal guarantee of the bond- NO
Petition is DENIED. Respondent is entitled to backwages computed from the time she was illegally dismissed up to the date of the finality of the Court's October 31, 2008 Decision in the illegal dismissal case on March 12, 2009. The Court, thus, finds the subject recomputation of money award to be in order.
1. Petitioners argue that the CA erred in concluding that the supersedeas bond they posted was irregular and therefore has no force and effect based on the OCA certification that Mapfre's authority to transact business as a bonding company refers only to civil and special cases. They call attention to the Memorandum39 dated June 8, 2010 issued by the NLRC's Legal and Enforcement Division for the information and guidance of all Presiding/Commissioners and Executive/Labor Arbiters regarding the list of bonding companies accredited by this Court with respect to criminal and civil cases, which include Mapfre. Petitioners assert that the NLRC's endorsement of the said list to all Presiding Commissioners and Executive/Labor Arbiters could only mean that the bonding companies therein listed can also well be considered for labor cases.
The Court agrees with petitioners.
2. Nevertheless, the Court still finds that petitioners failed to comply with the bond requirement in perfecting their appeal. Article 223 of the Labor Code provides in part:
Article 223. Appeal . Decisions, awards, or orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or both parties within ten (10) calendar days from receipt of such decisions, awards, or orders. x x x xxxx In case of a judgment involving a monetary award, an appeal by the employer may be perfected only issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from.
Here, petitioners did not submit any proof of security deposit or collateral securing the bond. They themselves admit this in their Petition by stating that they no longer attached a separate document of security deposit or collateral securing the bond because Mapfre did not find i t necessary to require them to give a security deposit and/or collateral. According to them, Mapfre “finds it sufficient that the Indemnity
Agreement attached to the Memorandum of Appeal was signed by petitioner Bravo, the president of petitioner U-Bix, in his personal capacity.” Petitioners are clutching at straws in impressing upon this Court that petitioner Bravo, in signing the Indemnity Agreement in his personal capacity, has already bound himself to be jointly and severally liable with Mapfre for the monetary award and this has the effect of securing the bond. Suffice it to say that "[t]he obvious purpose of an appeal bond is to ensure, during the period of appeal, against any occurrence that would defeat or diminish recovery by the aggrieved employees under the judgment if subsequently affirmed." To the Court's mind, the intention in requiring a security deposit or collateral to secure the bond, apart from the indemnity agreement between the
employer-appellant and the bonding company, is to further ensure recovery by the employee of the judgment award should the same be affirmed, in any and all eventualities. This is also in keeping with the purpose of the bond requirement, which is to "discourage employers from using the appeal to delay, or even evade, their obligation to satisfy their employee's possible just and lawful claims. Whether or not the CA committed grave error in awarding Romeo Panoglinog permanent total disability benefits.
:
YES. Since respondent's injury on board the vessel "Star Princess" that caused his eventual repatriation was sustained during the effectivity of the CBA, his claim for the payment of permanent total disability compensation shall be governed by Article 12 (2) of the CBA. A seafarer shall be entitled to the payment of the full amount of disability compensation only if his injury, regardless of the degree of disability, results in loss of profession, i.e., his physical condition prevents a return to sea service. Based on the submissions of the parties, this contractual attribution refers to permanent total disability compensation as known in labor law.
While respondent has the right to seek the opinion of other doctors under Section 20 (B) of the POEA-SEC and the CBA, it bears stressing that the
employer is liable for a seafarer's disability, arising from a work-related injury or illness, only after the degree of disability has been established by the company-designated physician and, if the seafarer consulted with a physician of his choice whose assessment disagrees with that of the company designated physician, the disagreement must be referred to a third doctor for a final assessment. Petition Granted. Labor Relations -
Procedure and
1.
WHETHER THE FILING OF THE PETITION MAY BE ALLOWED DESPITE ONE-DAY DELAY?
2.
WHETHER NLRC COMMITTED A SERIOUS ERROR IN ABSOLVING VECO FROM THE CHARGE OF UNFAIR LABOR PRACTICE AND ILLEGAL DISMISSAL OF MAHILUM?
Jurisdiction
Section 4, Rule 65 of the 1997 Rules of Civil Procedure, certiorari should be filed " from notice of the judgment, order or resolution" sought to be assailed.
The Union admittedly57 received on August 18, 2011 the NLRC's July 29, 2011 Resolution, which denied their motion for reconsideration of the NLRC's June 30, 2011 Decision.
Therefore, the 60-day period within which to file a petition for certiorari ended on October 17, 2011. But the certiorari petition was filed one day after, or on October 18, 2011.
The Court cannot subscribe to the theory that the ends of justice would be better subserved by allowing a petition for certiorari filed only one-day late. When the law fixes sixty (60) days, it cannot be taken to mean also sixty-one (61) days, as the Court had previously declared.
Petitioners failed to satisfactorily show that the refusal of VECO to follow the grievance machinery procedure under Section 4, Article XVII of the CBA in the suspension and termination from employment of the other union officers and members constituted unfair labor practice.
Fundamental doctrine in labor law that the CBA is the law between the parties and they are obliged to comply with its provisions.
As in this case, when general and specific provisions of the CBA are inconsistent, the to and govern the general provision. Section 4, Article XVII of the CBA states that "(a)ny difference of opinion, controversy, dispute problem or complaint arising from CompanyUnion or Company-Worker relations concerning the interpretation or application of this Agreement or regarding any matter affecting Company Union or Company-Worker relations shall be considered a grievance." 65 On the other hand, under Section 13, Article XIV, "(t)he Company agrees that henceforth there shall be a fair and uniform application of its rules and regulations. It is understood that disciplinary actions imposed on employee or laborer shall be governed by the rules and regulations promulgated by the
Company as well as those provided for by existing laws on the matter."
Thus, the NLRC correctly ruled that VECO acted within the bounds of law when it proceeded with its administrative investigation of the charges against other union officers and members.
Consistent with jurisprudential rulings supporting an employer's free reign and "wide latitude of discretion to regulate all aspects of employment, including the .
Delving now into the merits of Mahilum's dismissal, the Court holds that the two requisites for a valid dismissal from employment have been met, namely: (1) it must be for a just or authorized cause; and (2) the employee must be afforded due process.
VECEU-ALU President, Casmero A. Mahilum, said that since 2004 up to present the new VECO Management under the administration of the Aboitizes unceasingly attack the local Union by continuously limit (sic) its membership and diminish (sic ) and/or abolish ( sic ) worker's benefits and privileges stipulated in the CBA It is clear from the foregoing that Mahilum was not an ordinary rank and-file employee. His job entailed the observance of proper company procedures relating to processing and determination of electrical service applications culminating in the signing of service contracts, which constitutes the very lifeblood of VECO's existence. Mahilum's job involved a high degree of responsibility requiring a substantial amount of trust and confidence on the part of his employer.
The derogatory statements issued by Mahilum that were intended to incite, not just public condemnation of VECO, there can be no dispute that VECO, indeed, had lost its trust and confidence in Mahilum and his ability to perform his tasks with utmost efficiency and loyalty expected of an employee entrusted to handle customers and funds. Settled is the rule that an employer cannot be compelled to retain an employee who is guilty of acts inimical to the interests of the employer. A company has the right to dismiss its employee if only as a measure of self-protection.
Mahilum was terminated for a just and valid cause. VECO complied with the procedural due process requirements of furnishing Mahilum with two written notices before the termination of employment can be effected. On May 8, 2009,83 Mahilum was apprised of the particular acts for which his termination was sought; and, after due investigation, he was given a Notice of Decision 84 on October 28, 2010 informing him of his dismissal from service.
The fact that Mahilum served the company for a considerable period of time will not help his cause. The longer an employee stays in the service of the company, the greater is his responsibility for knowledge and compliance with the norms of conduct and the code of discipline in the company.
The state's responsibility to afford protection to labor, this policy should not be used as an instrument to
oppress management and capital. In resolving disputes between labor and capital, fairness and justice should always prevail. Social justice does not mandate that every dispute should be automatically decided in favor of labor. Justice is to be granted to the deserving and dispensed in the light of the established facts and the applicable law and doctrine.
Whether petitioner Raza's numerous acts of taking the company car home overnight and lying about one of the incidents to the company president legally deserve the supreme penalty of dismissal from the company.
YES.
Raza's acts amounted to serious misconduct which falls under the valid grounds for termination of the services of an employee as provided for in the Labor Code, specifically Article 282 (a) thereof, to wit:
ART. 282.
Termination by employer. — An employer may terminate an employment for any of
the following causes: (a)
Serious misconduct or willful disobedience by the employee of the lawful orders of his
employer or representative in connection with his work; . . . .
Misconduct is improper or wrongful conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error of judgment. For misconduct to justify dismissal under the law, (a) it must be serious, (b) must relate to the performance of the employee's duties; and (c) must show that the employee has become unfit to continue working for the employer.
In the case at bar, Raza was terminated not for the singular act of taking home the company car but that the incident was preceded by 31 other instances of unauthorized use of the car. By taking the vehicle out and driving it to his home, the driver exposes such company property to the risk of damage or loss due to collisions, theft or even untoward incidents such as a fire or civil disturbance. There is also a risk of company liability to third persons arising from such use. In addition, such use is not free of costs, since the extra journey entails fuel use, wear and tear, and other allied expenses. The infractions of Raza were numerous enough that they already amount to an unlawful taking of company resources and that they may be subsumed under the charge of serious misconduct leveled against him.
WHETHER QUIOGUE IS ENTITLED TO PERMANENT AND TOTAL DISABILITY BENFITS AND OTHER CLAIMS FOR DAMAGES?
: It is a well-settled rule that if the medical treatment or evaluation exceeds 240 days, the seafarer is entitled to permanent and total disability benefits. The doctrine recognizes that, in awarding
. The records show that Quiogue still experienced recurring pains in his injured left foot. The companydesignated physician, however, even with the recurring pains, declared him as fit to work. Thus, Quiogue sought the opinion of his own physician, Dr. Escutin, who after the necessary tests and examination declared him unfit for sea duty in whatever capacity as a seaman.
The right of a seafarer to consult a physician of his choice can only be sensible when his findings are duly evaluated by the l abor tribunals in awarding disability claims. 40
The credibility of the findings of Quiogue's private doctor was properly evaluated by the NLRC when it found that the findings of Dr. Escutin who gave Grade 1 disability rating was more appropriate and applicable to the injury suffered by Quiogue. With these medical findings and the fact that Quiogue failed to be re-deployed by petitioners despite the fit to work assessment, Dr. Escutin's assessment should be upheld.
Even in the absence of an official finding by Dr. Escutin, Quiogue is deemed to have suffered permanent total disability. The fact that Quiogue was declared "fit to work" by the company-designated physician (with whom he underwent treatment and therapy from November 2010 to April 2011) on April 13, 2011 does not matter because the certification was issued beyond the authorized 120-day period.
As aptly ruled by the CA, the assessment of fitness to return to work by the company-designated physician notwithstanding, his disability was considered permanent and total as the said certification was issued .
There is no merit in petitioners' argument that Quiogue's entitlement to permanent total disability benefits was merely based on his inability to return to work for 120 days. He was entitled to permanent and total disability benefits not solely because of his incapacity to work for more than 120 days, but also because the company-designated physician belatedly gave his definite assessment on Quiogue medical condition, without any justifiable reason therefor.
Significantly, as aptly found by the NLRC, he remained unemployed even after the time he filed the complaint to recover permanent total disability compensation. In the aforecited case of
, it was
stated that should the company-designated physician fail to give his proper medical assessment and the seafarer's medical condition remains unresolved,
.43
The Court likewise finds no basis for petitioners' contention that Quiogue's previous award of permanent disability benefits bar his present claim for disability benefits against petitioners. The CA was also correct when it deleted the award for attorney's fees for failure of the LA to explain Quiogue's entitlement thereto. It must be stressed, as correctly observed by the CA, that there must always
be a factual basis for the award of attorney's fees. In fine, the factual, legal or equitable justification for the award must be set forth in the text of the decision. The matter of attorney's fees cannot be touched once and only in the fallo of the decision or else, the award should be thrown out for being speculative and conjectural. In the absence of a stipulation, the attorney's fees are ordinarily not recoverable; otherwise a premium shall be placed on the right to litigate. Whether there has been constructive dismissal.
No.
A judicious review of t he records reveals that CABI's accounting department indeed made an audit of the purchases made by the company through its Purchasing Officer, Siason. This resulted in the discovery of a number of questionable discrepancies in several purchasing transactions undertaken by Siason, consisting in different price quotations for identical items contained in various purchase documents prepared by Siason herself.
Taking into consideration Siason's long tenure at CABI, as well as her close relationship with Chan, the latter sent her the letter asking her to resign "rather than [to] force [his] hand" - which should be construed as Chan telling Siason to resign or be faced with an administrative complaint. Atty. Ner-Tiangco sent Siason another letter, essentially confirming if the latter was going to resign or if she is subjecting herself to an administrative investigation. Ultimately, Siason chose to tender her resignation to save herself from the
trouble of besmirching her employment record.
The foregoing facts belie Siason's argument that petitioners constructively dismissed her. These circumstances show that she was given the option to voluntarily resign from CABI, instead of dealing with an investigation which might result in her dismissal. Verily, Chan's decision to give Siason a graceful exit rather than to file an action for redress is perfectly within the discretion of the former; as it is not uncommon that an employee is permitted to resign to avoid the humiliation and embarrassment of being terminated for just cause after the exposure of her malfeasance. It is settled that there is nothing reprehensible or illegal when the employer grants the employee a chance to resign and save face rather than smear the latter's employment record, as in this case.
In sum, petitioners did not constructively dismiss Siason; but rather, the latter voluntarily resigned from her job in order to avoid a full-blown administrative trial regarding her misdeeds which could potentially result in her termination for just cause. While it may be said that she did not tender her resignation wholeheartedly, circumstances of her own making did not give her any other option but to voluntarily do so. Therefore, in view of her voluntary resignation from CABI, she is not entitled to any separation pay in the absence of any agreement with petitioners providing for such.
[G.R. No. 206612. August 17, 2015.]
WON posting a bond is required to perfect the appeal in this case.
TOYOTA ALABANG, INC., petitioner, vs. EDWIN GAMES, respondent.
The decision that petitioner illegally dismissed respondent was already final and executory because of petitioner's failure to file a timely appeal. Petitioner itself was negligent in advancing its case and failed to exhibit diligence when it did not attend the hearings. the Court finds that the CA justly refused to reopen the case in the former's favor. Definitely, petitioner cannot now be allowed to claim denial of due process when it was petitioner who was less than vigilant of its rights. No appeal may be taken from an order of execution of a final and executory judgment. After all, just as a losing party has the right to file an appeal within the prescribed period, so does the winning party have the correlative right to enjoy the finality of the resolution of the case. An appeal is not a matter of right, but is a mere statutory privilege.
The bond is required to perfect an appeal. Article223 of the Labor Code and Section 6, Rule VI of the 2011 NLRC Rules of Procedure, uniformly state that “In case the decision of the Labor Arbiter or the Regional
Director involves a monetary award, an appeal by the employer may be perfected only upon the posting of a bond, which shall either be in the form of cash deposit or surety bond equivalent in amount to the monetary award, excl usive of damages and attorney's fees.” These rules generally state that in case the ruling of the LA involves a monetary award, an employer's appeal may be perfected only upon the posting of a bond. Therefore, absent any qualifying terms, 13 so long as the decision of the LA involves a monetary award, as in this case, 14 that ruling can only be appealed after the employer posts a bond. The purpose of the bond is to ensure that the employee has properties on which he or she can execute upon in the event of a final, providential award. PETITION DENIED.
Whether or not the respondent is entitled to permanent disability benefits?
No, the respondent is not entitled to the permanent disability benefits. When respondent was declared fit to work 144 days from the date of his medical repatriation, he cannot be considered under the state of permanent total disability. Hence, he cannot be said to have acquired a cause of action for total and permanent disability benefits. To stress, the rule is that a temporary total [
disability only becomes permanent when the company-designated physician, within the 240-day period, declares it to be so, or when after the lapse of the same, he fails to make such declaration. In this case, he was declared fit to work 144 days from the date of his medical repatriation or before the lapse of 240 days.
From May 2000 to September 21, 2001, 144 days had lapsed before respondent was declared fit to work. Concededly, said periods have already exceeded the 120-day period under Section 20(B) of the POEA-SEC and Article 192 of the L abor Code. However, records show that respondent underwent a series of evaluations which implied requirement of further medical treatment, thus, justifying the extension of the 120-day period. The company-designated doctor had a period of 240 days within which to make a finding on his fitness for further sea duties or degree of disability.
IS THERE A VALID DISMISSAL?
Concerning the transfer of employees, these are the following jurisprudential guidelines: (a) a transfer is a movement from one position to another of equivalent rank, level or salary without break in the service or a lateral movement from one position to another of equivalent rank or salary; (b) the employer has the inherent right to transfer or reassign an employee for legitimate business purposes; (c) a transfer becomes unlawful where it is motivated by discrimination or bad faith or is effected as a form of punishment or is a demotion without sufficient cause; (d) the employer must be able to show that the transfer is not unreasonable, inconvenient, or prejudicial to the employee.
While the prerogative to transfer respondent to another account belonged to petitioner, it wielded the same unfairly. The evidence suggests that at the time respondent was transferred from the Washington Mutual account to the Bank of America program, petitioner was hiring additional CSRs/TSRs. This simply means that if it was then hiring new CSRs/TSRs, then there should be no need to transfer respondent to the Bank of America program; it could simply train new hires for that program. Transferring respondent an experienced employee who was already familiar with the Washington Mutual account, and who even proved to be outstanding in handling the same - to another account means additional expenses for petitioner: it would have to train respondent for the Bank of America account, and train a new hire to take her place in the Washington Mutual account. This does not make sense; quite the contrary, it is impractical and entails more expense on petitioner's part. If respondent already knew her work at the Washington Mutual account very well, then it is contrary to experience and logic to transfer her to another account
which she is not familiar with, there to start from scratch; this could have been properly relegated to a new hire.
There can be no truth to petitioner's claim either that respondent's transfer was made upon request of the client. If she was performing outstanding work and bringing in good business for the client, there is no reason - indeed it is beyond experience and logic - to conclude that the client would seek her transfer. Such a claim could only be fabricated.
Moreover, as the appellate court correctly observed, even if respondent had attendance and punctuality issues, her overall performance as a CSR/TSR was certainly far from mediocre; on the contrary, she proved to be a top performer. And if it were true that respondent suddenly became lax by way of attendance in July 2007, it is not entirely her fault. This may be attributed to petitioner's failure to properly address her grievances relative to the supposed irregularities in the handling of funds entrusted to petitioner by Washington Mutual which were intended for distribution to outstanding Washington Mutual CSRs and TSRs as prizes and incentives. She wrote petitioner about her complaint on July 3, 2007; however, no explanation was forthcoming from petitioner, and it was only during these proceedings - or after a case had already been filed - that petitioner belatedly and for no other useful purpose attempted to address her concerns. This may have caused a bit of disillusionment on the part of respondent, which led her to miss work for a few days in July 2007. Her grievance should have been addressed by petitioner; after all, they were serious accusations, and have a bearing on the CSRs/TSRs' overall performance in the Washington Mutual account.
The managerial prerogative to transfer personnel must be exercised without grave abuse of discretion,
bearing in mind the basic elements of justice and fair play. Having the right should not be confused with the manner in which that right is exercised. Thus, it cannot be used as a subterfuge by the employer to rid himself of an undesirable worker. In particular, the employer must be able to show that the transfer is not unreasonable, inconvenient or prejudicial to the employee; nor does it involve a demotion in rank or a diminution of his salaries, privileges and other benefits. Should the employer fail to overcome this burden of proof, the employee's transfer shall be tantamount to constructive dismissal, which has been defined as a quitting because continued employment is rendered impossible, unreasonable or unlikely; as an offer involving a demotion in rank and diminution in pay. Likewise, constructive dismissal exists when an act of clear discrimination, insensibility or disdain by an employer has become so unbearable to the employee leaving him with no option but to forego with his continued employment.
In placing respondent on "floating status," petitioner further acted arbitrarily and unfairly, making life unbearable for her. In so doing, it treated respondent as if she were a new hire; it improperly disregarded her experience, status, performance, and achievements in the company; and most importantly, respondent was illegally deprived of her salary and other emoluments. For her single absence during training for the Bank of America account, she was refused certification, and as a result, she was pl aced on floating status and her salary was withheld. Clearly, this was an act of discrimination and unfairness considering that she was not an inexperienced new hire, but a promising and award-winning employee who was more than eager to succeed within the company. This conclusion is not totally baseless, and is rooted in her outstanding performance at the Washington Mutual account and her complaint regarding the incentives, which only proves her zeal, positive work attitude, and drive to achieve financial success through hard work. But instead of rewarding her, petitioner unduly punished her; instead of inspiring her, petitioner dashed her hopes and dreams; in return for her industry, idealism, positive outlook and fervor, petitioner left her with
a legacy of, and awful examples in, office politicking, intrigue, and internecine schemes.
With the foregoing pronouncements, an award of indemnity in favor of respondent should be forthcoming. In case of constructive dismissal, the employee is entitled to full backwages, inclusive of allowances, and other benefits or their monetary equivalent, as well as separation pay in lieu of reinstatement. The readily determinable amounts, as computed by the Labor Arbiter and correspondingly reviewed and corrected by the appellate court, should be accorded finality and deemed binding on this Court. Settled is the rule that that 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 up to the time of actual reinstatement. If reinstatement is not possible, however, the award of separation pay is proper.
Whether or not Respondent is entitled to permanent disability benefits?
Yes, he is entitled to permanent disability benefits. The court held the following:
The Court finds that respondent’s psoriasis and nummular eczema, which have not been cured, are work-
connected and thus compensable. He is unfit to continue his duties as messman, as his i llness prevents him from performing his functions as such. Up to this point, it does not appear that petitioners took him back to work for their principal, or that a declaration of fitness to work or that his condition has been resolved or cured has been issued. “[A]n employee’s disability becomes permanent and total when so declared by
the company-designated physician, or, in case of absence of such a declaration either of fitness or permanent total disability, upon the lapse of the 120 or 240-day treatment period under Article 192 (c) (1) of the Labor Code and Rule X, Section 2 of the Amended Rules on Employees’ Compensation Commission, while the employee’s disability continues and he is unable to engage in gainful employment during such
period, and the company-designated physician fails to arrive at a definite assessment of the employee’s fitness or disability. This is true regardless of whether the employee loses the use of any part of his body or if the injury or disability is classified as Grade 1 under the POEA- SEC.”
The evidence further suggests that before respondent was employed by petitioners, he did not suffer from psoriasis and nummular eczema; if he had been afflicted with these ailments prior to employment, surely he would not have been taken in. He was given a clean bill of health through the standard pre-employment physical examination. Besides, in any of their pleadings, petitioners did not contest this fact; nor did they claim that respondent had these conditions prior to his employment.
Whether or not Crisology may dispute his retrenchment
:
NO. Crisologo has declared and manifested thru the quitclaim and waiver that he executed the same in his "own free will and for valuable consideration." This signifies his acceptance of the benefits thereunder. Thus, it can hardly be doubted that from its end petitioner had dealt at arms length with respondent in the matter of duly compensating the latter for the services he had rendered the petitioner during the 11 years or so that he had been under its employ. The records of the case yield no evidence that respondent had ever been tricked or hoodwinked into affixing his signature upon the said deed of waiver-quitclaim cum separation pay. His impressive credentials are of course ample proof of authentic high level academic achievement, indicative of a by-no-means middling or common place intellectual power. The combination of all these circumstances thus repels the suggestion that respondent might not have fully or thoroughly grasped or understood the plain meaning, intendment and significance of the deed/document to which he affixed his signature, and from the obvious and inevitable effects of which he now seeks to rid or extricate himself. That by his free and voluntary act and deed he chose or opted to deed away his patrimonial rights he has only himself to blame. The decision of the NLRC was reinstated.
WON there exists an employer – employee relationship between Galit and SJS
:
(1.) Galit is a regular employee of SJS. Upon cursory reading of the employment contract between SJS and Galit, it is readily seen that SJS has the power of dismissal and control. Galit admitted in his complaint that it was SJS which detailed him in the Pandacan oil depot. Galit also did not present any evidence to prove that it was Chevron which pays his wages and that SJS is a mere conduit of the latter. He was dismissed therefrom because Chevron no longer renewed its contract with SJS and that the latter subsequently ceased to operate.
(2.) The work performed by Galit, which is the "scooping of slop of oil water separator," has no direct relation to Chevron’s business, which is the importation, refining and manufacture of petroleum products. The job
performed by Galit, which essentially consists of janitorial services, may be incidental or desirable to petitioner's main activity but it is not necessary and directly related to it.
Whether or not Albia was not a regular employee of Convoy, but merely a contractual one whose services ended upon the expiration of the period agreed upon.
: NO. The existence of an employer- employee relationship cannot be negated by expressly repudiating it in a contract and providing therein that the employee is an independent contractor when the facts clearly show otherwise. Contrary to petitioners' claim, the fact that Convoy has fifteen
(15)regular drivers only underscores that indeed, having been hired as a driver, Albia was engaged to perform an activity which is necessary or desirable in the usual company business of marketing and distribution of bottled wines, liquor and bottled water. Albia has become a regular employee is evident from the Delivery Agency Agreements (For Driver) — which indicate that he had rendered at least one year of broken service with respect to the same activity in which he was employed from the time he was hired as a driver on November 22, 2002 until he was terminated on July 23, 2004. . Albia cannot be considered as in independent contractor. There is no dispute that it was Convoy who engaged the services of Albia as a driver without the intervention of a third party, paid his wages on a per trip basis, and abruptly terminated his services the next day after admitting to have consumed three bottles of beer after finishing his deliveries on July 22, 2004. There is, likewise, no question that Convoy controls or has reserved its right to control Albia's conduct, not only as to the result of his work but also as to the means and methods by which such result is to be accomplished.
Petition Denied.
1. Whether or not Saso complied with the post-employment examination within three days- NO,
however, absence of post- employment exam does not defeat Saso’s right to claim for compensation and benefits. 2. Whether or not Saso is entitled to total and permanent disability benefits- NO. Complaint is premature. 3. Whether or not Saso is entitled to OTHER benefits- YES, but his claim for reimbursement of medical expenses must all be supported by receipts. Some of his claims are not evidenced by receipts.
1. The Court lends more credence to Saso's allegation that he reported to 88 Aces on April 23, 2010 or within three days from his repatriation in compliance with the mandatory reporting requirement and, that it is actually respondents who failed to fulfill their part of the obligation when they did not provide him with a timely post-employment medical examination. As held, the absence of a post- employment medical examination cannot be used to defeat a seafarer's claim when the failure to subject him to such requirement was not due to his fault but to the inadvertence or deliberate refusal of the employer.
2. The Court declared in C.F. Sharp Crew Management, Inc. v. Taok that the 120-day or 240-day period and the obligation of the law imposed on the employer are determinative of when a seafarer's cause of action for total and permanent disability may be considered to have arisen. The instances when a seafarer may pursue an action for total and permanent disability benefits were then enumerated therein as follows:
"(a) when the company-designated physician failed to issue a declaration as to his fitness to engage in sea duty or disability x x x after the lapse of the 120- day period and there is no indication that further medical treatment would address his temporary total disability [even if the period is extended] to 240 days; (b) 240 days had lapsed without any certification being issued by the company-designated physician; (c) the company-designated physician declared that he is fit for sea duty within the 120-day or 240day period, as the case may be, but his physician of choice and the doctor chosen under Section 20B(3) of the POEA-SEC are of a contrary opinion; (d) the company-designated physician acknowledged that he is partially permanently disabled but other doctors x x x he consulted, on his own and jointly with his employer, believed that his disability is not only permanent but total as well; (e) the company-designated physician recognized that he is totally and permanently disabled but there is a dispute on the disability grading; (f) the company-designated physician determined that his medical condition is not compensable or work-related under the POEA-SEC but his doctor-of-choice and the third doctor selected under Section 20-B(3) of the POEA-SEC found otherwise and declared him unfit to work; (g) the company-designated physician declared him totally and permanently disabled but the employer refuses to pay him the corresponding benefits; and (h) the company-designated physician declared him partially and permanently disabled within the
120-day or 240-day period he remains incapacitated to perform his usual sea duties after the lapse of the said periods."
Unfortunately for Saso, none of the above instances justifies his claim for total and permanent disability benefits. As may be recalled, he filed his Complaint on August 3, 2010 or after a mere 105 days from his repatriation on April 20, 2010. Clearly, the 120-day period had not yet lapsed at that time. Moreover, the company-designated physician had not yet issued any declaration as to his fitness or disability. This is considering that at the time of such filing, Saso was still under the care of Dr. Recto as shown by the fact that he was subsequently seen by the said doctor on September 3, 2010. Indeed, a seafarer has the right to seek the opinion of other doctors under Sec. 20-B(3) of the POEA-SEC but this is on the presumption that the company-designated physician physician had already issued a certification as to his fitness or disability and he finds this disagreeable. Under the same provision, it is the companydesignated physician who is entrusted with the task of assessing a seafarer's disability and there is a procedure to contest his findings
3. The Court earlier declared that the absence of post-employment medical examination does not bar Saso from claiming the benefits that are rightfully due him. Nevertheless, his claim for reimbursement of medical expenses in the amount of P25,857.00 must be disallowed for being not supported by receipts. At any rate, the records show that respondents already reimbursed him the amount of P3,849.50 for his medical expenses. With respect to sickness allowance, Saso admitted in his Reply with the LA that he already received the amount of NT$51,200.00 which is equivalent to his salary for three months. Reckoned from his
arrival in the Philippines on April 23, 2010, the said amount covers his compensation for only until July 23, 2010. Finally, while it is true that Saso's claim for total and permanent disability benefit is premature, Even respondents acknowledged this in their Position Paper with the LA when they asserted that Saso is entitled t o disability compensation commensurate commensurate to Impediment Grade 13 under Section 32 of the POEA-SEC. On this score, the Court deems it proper to award Saso partial disability benefit in accordance with the findings of the company-designated physician. Under Section 32 of the POEA-SEC, the disability allowance for Impediment Grade 13 is US$50,000.00 multiplied by the degree of impediment which is 6.72%. Saso is thus entitled to US$3,360.00, to be paid in Philippine Currency equivalent to the exchange rate prevailing at the time of payment. Attorney's fees cannot, however, be granted since in the light of the factual milieu of this case, respondents were well within their rights to deny Saso's claim for total and permanent disability benefit. WON the act of the CA modifying the NLRC decision is proper despite it being final and executory and that an entry of judgment has been made.
In Philippine Transmarine Carriers, Carriers, Inc. v. Legaspi, 16 the Court has the occasion to rule that a p etition for
certiorari is not rendered moot by the mere fact that there was already an executed NLRC decision.
The judicial review of decisions of the NLRC may be sought via a petition for certiorari before the CA under Rule 65 of the Rules of Court; and under Section 4 thereof, petitioners are allowed sixty (60) days from notice of the assailed order or resolution within which to file the petition. Hence, in cases where a petition for certiorari is filed after the expiration of the JO-day period under the 2011 NLRC Rules of Procedure but within the 60-day period under Rule 65 of the Rules of Court, the CA can grant the petition and modify, nullify and reverse a decision or resolution of the NLRC.
In this case, under the NLRC Rules of Procedure, petitioners have sixty (60) days from receipt of the denial of the motion for reconsideration reconsideration within which which to file the petition for certiorari certiorari under Section 4 of Rule 65 of the Rules of Court. The petition for certiorari filed on February 16, 2010 was t hen timely. Consequently, the appellate court can still grant the petition and modify, nullify and reverse a decision or resolution of the NLRC.
In this case, considering that the petition was filed within the reglementary period to file a petition for certiorari, the decision had not attained finality yet. It bears stressing that a petition for certiorari under Rule 65 must be filed not later than 60 days from notice of the judgment, order or resolution sought to be annulled. Indubitably, the issuance of an entry of judgment by the NLRC cannot render a petition for certiorari as moot and academic. Hence, Petition denied.
: Whether the redundancy program was legally implemented.
[ G.R. No. 194410, October 14, 2015 ] OCEAN EAST AGENCY, CORPORATION, ENGR. ARTURO D. CARMEN, AND CAPT. NICOLAS SKINITIS, petitioners, vs. ALLAN I.
NO.
LOPEZ, respondent. Redundancy exists when the service capability of the workforce is in excess of what is reasonably needed to meet the demands of the enterprise. A redundant position is one rendered superfluous by any number of factors, such as over hiring of workers, decreased volume of business, dropping of a particular product line previously manufactured by the company, or phasing-out of a service activity previously undertaken by the business. Under these factors, the employer has no legal obligation to keep in its payroll more employees than are necessary for the operation of its business. Even if a business is doing well, an employer can still validly dismiss an employee from the service due to redundancy if that employee's position has already become in excess of what the employer's enterprise requires.
As an authorized cause for termination of employment, redundancy may be implemented subject only to strict requirements spelled out in Article 283 of the Labor Code. For the implementation of a redundancy
program to be valid, the employer must comply with these requisites: (1) written notice served on both the employee and the Department of Labor and Employment at least one month prior to the intended date of retrenchment; (2) payment of separation pay equivalent to at least one month pay or at least one month pay for every year of service, whichever is higher; (3) good faith in abolishing the redundant positions; and (4) fair and reasonable criteria in ascertaining what positions are to be declared redundant and accordingly abolished.
The Court finds that petitioners failed to establish compliance with the first, third and fourth requisites for a valid implementation of a redundancy program, thereby making Ocean East liable for illegal dismissal.
Ocean East claims that the notice to DOLE may already be dispensed with since there was no more useful purpose for it, and Lopez was already adequately compensated as required by law.
In fact, the Court has considered as a fatal error the employer's failure to give a written notice to the DOLE as required under Article 283 of the Labor Code.
While it is true that the characterization of an employee's services as superfluous or no longer necessary and, therefore, properly terminable, is an exercise of business judgment on the part of the employer, the exercise of such judgment must not violate the law, and must not be arbitrary or malicious. An employer cannot simply declare that it has become overmanned and dismiss its employees without adequate proof to sustain its claim of redundancy. The following evidence may be proffered to substantiate redundancy, to wit: the new staffing pattern, feasibility studies/proposal on the viability of the newly-created positions, job description and the approval by the management of the restructuring.
In this case, petitioners were able to establish through Ocean East's Quality Procedures Manual that Lopez' position as a Documentation Officer was redundant because its duties and functions were similar to those of the Documentation Clerks in its operations department. However, they failed to prove by substantial evidence their observance of the fair and reasonable criteria of seniority and efficiency in ascertaining the redundancy of the position of Documentation Officer, as well as good faith on their part in abolishing such position. Petitioners were unable to justify why it was more efficient to terminate Lopez rather than its two other Documentation Clerks, Reynolds and Hing. Also, while Reynolds was supposedly retained for being more senior than Lopez, petitioners were silent on why they chose to retain Hing who was hired in 1996, instead of Lopez who was hired about eight (8) years earlier in 1988.
Whether Samahan should have formed a union and whether they may carry the Hanjin name.
As Article 246 (now 252) of the Labor Code provides, the right to self-organization includes the right to form, join or assist labor organizations for the purpose of collective bargaining through representatives of their own choosing and to engage in lawful concerted activities for the same purpose for their mutual aid and protection. This is in line with the policy of the State to foster the free and voluntary organization of a strong and united labor movement as well as to make sure that workers participate in policy and decisionmaking processes affecting their rights, duties and welfare.
The right to form a union or association or to self-organization comprehends two notions, to wit: (a) the liberty or freedom, that is, the absence of restraint which guarantees that the employee may act for himself without being prevented by law; and (b) the power, by virtue of which an employee may, as he pleases, join or refrain from joining an association.
In view of the revered right of every worker to self-organization, the law expressly allows and even encourages the formation of labor organizations. A labor organization is defined as "any union or association of employees which exists in whole or in part for the purpose of collective bargaining or of dealing with employers concerning terms and conditions of employment." A labor organization has two broad rights: (1) to bargain collectively and (2) to deal with the employer concerning terms and conditions
of employment. To bargain collectively is a right given to a union once it registers itself with the DOLE. Dealing with the employer, on the other hand, is a generic description of interaction between employer and employees concerning grievances, wages, work hours and other terms and conditions of employment, even if the employees' group is not registered with the DOLE.
In the case at bench, the Court cannot sanction the opinion of the CA that Samahan should have formed a union for purposes of collective bargaining instead of a workers' association because the choice belonged to it. The right to form or join a labor organization necessarily includes the right to refuse or refrain from exercising the said right. It is self-evident that just as no one should be denied the exercise of a right granted by law, so also, no one should be compelled to exercise such a conferred right. Also inherent in the right to self-organization is the right to choose whether to form a union for purposes of collective bargaining or a workers' association for purposes of providing mutual aid and protection.
In this case, Samahan's registration was cancelled not because its members were prohibited from forming a workers' association but because they allegedly committed misrepresentation for using the phrase, "KAMI, ang mga Manggagawa sa HAN JIN Shipyard."
Misrepresentation, as a ground for the cancellation of registration of a labor organization, is committed "in connection with the adoption, or ratification of the constitution and by-laws or amendments thereto, the minutes of ratification, the list of members who took part in the ratification of the constitution and by-laws or amendments thereto, and those in connection with the election of officers, minutes of the election of
officers, and the list of voters.
The Court concludes that misrepresentation, to be a ground for the cancellation of the certificate of registration, must be done maliciously and deliberately. Further, the mistakes appearing in the application or attachments must be grave or refer to significant matters. The details as to how the alleged fraud was committed must also be indubitably shown.
The records of this case reveal no deliberate or malicious intent to commit misrepresentation on the part of Samahan. The use of such words "KAMI, ang mga Manggagawa sa HANJIN Shipyard" in the preamble of the constitution and by-laws did not constitute misrepresentation so as to warrant the cancellation of Samahan's certificate of registration. Hanjin failed to indicate how this phrase constitutes a malicious and deliberate misrepresentation. Neither was there any showing that the alleged misrepresentation was serious in character. Misrepresentation is a devious charge that cannot simply be entertained by mere surmises and conjectures.
Even granting arguendo that Samahan's members misrepresented themselves as employees or workers of Hanjin, said misrepresentation does not relate to the adoption or ratification of its constitution and by-laws or to the election of its officers.
Nevertheless, the Court agrees with the BLR that "Hanjin Shipyard" must be removed in the name of the
association. A legitimate workers' association refers to an association of workers organized for mutual aid and protection of its members or for any legitimate purpose other than collective bargaining registered with the DOLE. Having been granted a certificate of registration, Samahan's association is now recognized by law as a legitimate workers' association.
According to Samahan, inherent in the workers' right to self-organization is its right to name its own organization. It seems to equate the dropping of words "Hanjin Shipyard" from its name as a restraint in its exercise of the right to self-organization. Hanjin, on the other hand, invokes that "Hanjin Shipyard" is a registered trade name and, thus, it is within their right to prohibit its use.
As there is no provision under our labor laws which speak of the use of name by a workers' association, the Court refers to the Corporation Code, which governs the names of juridical persons. Section 18 thereof provides: No corporate name may be allowed by the Securities and Exchange Commission if the proposed name is identical or deceptively or confusingly similar to that of any existing corporation or to any other name already protected by law or is patently deceptive, confusing or contrary to existing laws. When a change in the corporate name is approved, the Commission shall issue an amended certificate of incorporation under the amended name. [Emphases Supplied]
The policy underlying the prohibition in Section 18 against the registration of a corporate name which is "identical or deceptively or confusingly similar" to that of any existing corporation or which is "patently deceptive" or "patently confusing" or "contrary to existing laws," is the avoidance of fraud upon the public which would have occasion to deal with the entity concerned, the evasion of legal obligations and duties, and the reduction of difficulties of administration and supervision over corporations.
For the same reason, it would be misleading for the members of Samahan to use "Hanjin Shipyard" in its name as it could give the wrong impression that all of its members are employed by Hanjin Whether or not Lumahan was illegally dismissed.
NO. The SC find that the CA erred in disregarding the NLRC's conclusion that there had been no dismissal, and in immediately proceeding to tackle Nightowl's defense that Lumahan abandoned his work.
In every employee dismissal case, the employer bears the burden of proving the validity of the employee's dismissal, i.e., the existence of just or authorized cause for the dismissal and the observance of the due process requirements. The employer's burden of proof, however, presupposes that the employee had in fact been dismissed, with the burden to prove the fact of dismissal resting on the employee. Without any dismissal action on the part of the employer, valid or otherwise, no burden to prove just or authorized
cause arises.
As no dismissal was carried out in this case, any consideration of abandonment - as a defense raised by an employer in dismissal situations -was clearly misplaced. To our mind, the CA again committed a reversible error in considering that Nightowl raised abandonment as a defense.
Abandonment, as understood under our labor laws, refers to the deliberate and unjustified refusal of an employee to resume his employment. It is a form of neglect of duty that constitutes just cause for the employer to dismiss the employee.
Under this construct, abandonment is a defense available against the employee who alleges a dismissal. Thus, for the employer "to successfully invoke abandonment, whether as a ground for dismissing an employee or as a defense, the employer bears the burden of proving the employee's unjustified refusal to resume his employment." This burden, of course, proceeds from the general rule that places the burden on the employer to prove the validity of the dismissal.
In cases where no dismissal took place, the proper award is reinstatement, without backwages, not as a relief for any illegal dismissal but on equitable grounds. When, however, reinstatement of the employee is rendered impossible, as when the employee had been out for a long period of time, the award of separation pay is proper.
Whether or not the CA erred in holding that petitioners’ exercise of its management prerogative to
temporarily lay-off employees is illegal in view of its failure to present financial statements to evidence its financial losses.
The Court finds the petition without merit. Jurisprudence, in both a permanent and a temporary lay-off, dictates that the one-month notice rule to both the DOLE and the employee under Article 283 (now Article 298) is mandatory. Also, in both cases, the layoff, as an exercise of the employer's management prerogative, must be exercised in good faith - that is, one which is intended for the advancement of employers' interest and not for the purpose of defeating or circumventing the rights of the employees under special laws or under valid agreements.
In light of the well-entrenched rule that the burden to prove the va lidity and legality of the termination of employment falls on the employer and the requisites provided by Article 286 (now Article 301) of the Labor Code, PADISCOR should have established the bona fide suspension of its business operations or undertaking that would have resulted in the temporary lay-off of the respondents for a period not exceeding six (6) months in accordance with the Labor Code.
In the present case, PADISCOR failed to prove its compliance with the said requisites. In invoking such article in the Labor Code, the paramount consideration should be the dire exigency of the business of the employer that compels it to put some of its employees temporarily out of work.45 This means that the employer should be able to prove that it is faced with a clear and compelling economic reason which reasonably forces it to temporarily shut down its business operations or a particular undertaking, incidentally resulting to the temporary lay-off of its employees.
Whether or not Rivera was illegally dismissed from work
:
NO. Under Article 282 (c) of the Labor Code, as amended, an employer may dismiss the employee either for (1) fraud; or (2) willful breach by the employee of the trust reposed in him by his employer or duly authorized representative. There is no question that petitioner's position as Branch Head requires a high degree of trust and confidence. Given the sensitive functions of his office, he is thus expected to strictly observe and comply with the Bank's standard operating procedures. Contrary to petitioner's asseveration, respondents did not just rely on t he allegations of Ms. Sta. Cruz, whose complaint merely triggered the full investigation conducted by the Bank on the return of several foreign currency checks. Subsequently, the audit on petitioner's branch revealed that several US Dollar denominated currency checks were returned due to forged or unauthorized endorsements. The practice of accepting for deposit second-endorsed US
Dollar denominated checks is strictly prohibited under the Bank's established policies, and may be allowed only in certain exceptional cases. The Bank's investigation on the transactions involving foreign currency checks during petitioner's tenure as Branch Head disclosed that petitioner deliberately disregarded the foregoing rules when he accepted for deposit several US Dollar denominated checks from Ms. Sta. Cruz. Thus, the Bank is justified in imposing the supreme penalty of dismissal.
Permanent disability is the inability of a worker to perform his job for more than 120 days, regardless of whether he loses the use of any part of his body. Total disability, on the other hand, means the disablement of an employee to earn wages in the same kind of work of similar nature that he was trained for, or accustomed to perform, or any kind of work which a person of his mentality and attainments could do.
Accordingly, permanent total disability does not mean a state of absolute helplessness but the inability to do substantially all material acts necessary to the prosecution of a gainful occupation without serious discomfort or pain and without material injury or danger to life. In disability compensation, it is not the injury per se which is compensated but the incapacity to work.
To determine whether a seafarer is entitled to permanent and total disability benefits, the Court takes into account both the law and t he contract which govern his overseas employment. Recently, amendments were placed in the POEA-SEC which is the primary contract that regulates a seafarer's employment. Section 20 (A) (6) of the 2010 POEA-SEC now provides that "[t]he disability shall be based solely on the disability
gradings provided under Section 32 of this Contract, and shall not be measured or determined by the number of days a seafarer is under treatment or the number of days in which sickness allowance is paid.
The Court, nevertheless, is of the view that before the disability gradings under Section 32 should be considered, these disability ratings should be properly established and contained in a valid and timely medical report of a company-designated physician. Thus, the foremost consideration of the courts should be to determine whether the medical assessment or report of the company-designated physician was complete and appropriately issued; otherwise, the medical report shall be set aside and the disability grading
contained
therein
cannot
be
seriously
appreciated.
The company-designated physicians issued two medical reports, both dated March 27, 2012. The disability report, on one hand, stated that Olidana only suffered loss of grasping power for small objects between the fold of the finger of one hand, which was a Grade 10 disability or a partial disability rating. The companydesignated physicians' final medical report, on the other hand, recommended that Olidana was unfit for duty. Glaringly, these two medical reports contradicted each other. Interestingly, the final medical report, which stated that Olidana was unfit for duty, concurred with Dr. Runas' medical evaluation report. The latter report stated that Olidana was physically unfit to continue with his job as a seaman or cook, or in whatever capacity, due to his permanent disability.
In the recent case of Elburg Shipmanagement Phils., Inc. v. Quiogue, Jr., the Court summarized the rules regarding the company-designated physician's duty to issue a final medical assessment on the seafarer's disability grading, as follows:
1. The company-designated physician must issue a final medical assessment on the seafarer's disability grading within a period of 120 days from the time the seafarer reported to him;
2. If the company-designated physician fails to give his assessment within the period of 120 days, without any justifiable reason, then the seafarer's disability becomes permanent and total;
3. If the company-designated physician fails to give his assessment within the period of 120 days with a sufficient justification (e.g. seafarer required further medical treatment or seafarer was uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The employer has the burden to prove that the company-designated physician has sufficient justification to extend the period; and
4. If the company-designated physician still fails to give his assessment within the extended period of 240 days, then the seafarer's disability becomes permanent and total, regardless of any justification.
Here, Olidana was repatriated on November 18, 2011. Within three (3) days, he was referred to the companydesignated physicians. It was only on March 27, 2012, or after a period of 130 days, that the companydesignated physicians issued the questionable disability report beyond the 120-day period. Although Section 20 (A) (6) of the 2010 POEA-SEC instructs that disability shall not be measured or determined by the number of days a seafarer is under treatment, equally significant is our pronouncement in Carcedo v. Maine Marine Phils., Inc., that while "the determination of the fitness of a seafarer for sea duty is the province
of the company- designated physician, it is still subject to the periods prescribed by law.”
Even assuming that Jebsens properly raised the extended 240-day period due to prolonged physical therapy sessions, Olidana still has a valid claim against his employer.
In the present case, it has been established that, in spite the lapse of the extended 240-day period, Olidana was still incapacitated to perform his sea duties. Due to the injury he sustained, he could no longer perform his usual tasks as chief cook in any vessel. Thus, it resulted to his unemployment until this very day. As correctly held by the VA, this clearly indicate Olidana's permanent disability.
In addition, it must be reiterated that the company-designated physicians' disability report should be set aside for being contradictory. Necessarily, it cannot be said that the company-designated physicians issued a valid and final medical assessment within the 120-day or 240-day period. The Court in Kestrel Shipping Co., Inc. v. Munar held that the declaration by the company-designated physician is an obligation, the abdication of which transforms the temporary total disability to permanent total disability, regardless of the disability grade
In fine, it cannot be said with certainty whether Olidana could resume his seafaring profession in the future. He must accept the inevitable that his distressing injury had practically ruined his career and he must carry its burden for the rest of his life. Nevertheless, at present, i t is clear is that Olidana suffered from a permanent
total disability resulting in a l oss of earning capacity, which should be compensated accordingly.
Whether or not the CA erred in ascribing grave abuse of discretion on the part of the NLRC in awarding salary differential, 13 th month pay and holiday pay in favor of petitioner. YES. The power of the Court to review a CA Decision in labor cases is limited. Specifically, in a petition for review under Rule 45 of the Rules of Court, the Court has to resolve whether the CA properly determined the presence of grave abuse of discretion on the part of the NLRC in rendering its Decision, and not whether the NLRC Decision on the merits was correct. However, while the strict inquiry on the correctness of evaluation of evidence is not required in a certiorari proceeding, it is still necessary to determine that the conclusions of labor tribunals were supported by substantial evidence. This is because a decision unsupported by substantial evidence is a judgment rendered with grave abuse of discretion.
In addition, as a rule, once the employee has asserted with particularity in his position paper that his employer failed to pay his benefits, it becomes incumbent upon the employer to prove payment of the employee's money claims. In fine, the burden is on the employer to prove payment, rather than on the employee to establish non-payment.
While a notarized document is presumed to be regular such presumption is not absolute and may be overcome by clear and convincing evidence to the contrary. The fact that a document is notarized is not a
guarantee of the validity of its contents. Petitioner is an unlettered employee who may not have understood the full import of his statements in the affidavit. Notably, petitioner, along with a co-worker did not state the specific amount of what they referred as salary above the minimum required by law. As found by the LA, respondent did not present substantial evidence that it paid the required minimum wage, 13th month pay and holiday pay in favor of petitioner. Respondent's mere reliance on the foregoing affidavit is misplaced because the requirement of established jurisprudence is for the employer to prove payment, and not merely deny the employee's accusation of non-payment on the basis of the latter's own declaration.
1. Manalo raises the issue of the jurisdiction of the Court of Appeals to review the decisions of the NLRC and that the facts found by LA and NLRC are binding upon the CA.
2. Another issue raised was the validity of the transfer, WON it is a form of Constructive Dismissal.
Supreme Court reiterated that as clarified in the case of St. Martin Funeral Homes v. NLRC , a judicial review of decisions of NLRC is permitted. However, the review is through a petition for certiorari under Rule 65, rather than an appeal. This petition is filed before the CA rather than directly to the Supreme Court in view of the principle of the hierarchy of courts.
SC also found error on the petitioner's stance that CA was bound by the facts found by LA and NLRC, the fact that under rule Rule 65, determination of jurisdiction and grave abuse of discretion, CA should not be faulted for examining the records of the case to have a proper analysis whether LA or NLRC properly performed their duties and functions in disposing of the case. Had it found no error, then the CA could just dismiss the Rule 65 petition.
Constructive dismissal arises "when continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank and/or diminution in pay; or when a clear discrimination, insensibility or disdain by an employer becomes unbearable to the employee. " It can happen in any number of ways. At its core is the gratuitous, unjustified, or unwarranted nature of employer's action.
However, not every inconvenience, disruption, difficulty, or disadvantage that an employee must endure results in a finding of constructive dismissal. Jurisprudence has long recognized that a transfer of employee done fairly and in good faith is a valid exercise of management prerogative.
In this case, petitioner was transferred by Fr. Taborda instead of dismissing her for being found guilty of the charges was a valid exercise of management prerogative. Petitioner should be reminded that even if the charges against her was outside of her capacity as a faculty member of the Accounting Department, the fact that she violated the ethical standards of her profession made her unfit to teach Accounting.
1. Whether the factual findings of both the NLRC and the LA were supported by substantial evidence – YES 2. Whether respondent was validly dismissed – YES 3. Whether respondent was deprived of his right to due process – NO
Affidavits may be sufficient to establish substantial evidence. Substantial evidence means "that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion."
In Capitol Medical Center, Inc. v. National Labor Relations Commission, the respondents failed to adduce substantial evidence that the said affiants were coerced into executing the said affidavits. The bare fact that some portions of the said affidavits are similarly worded does not constitute substantial evidence that the petitioner forced, intimidated or coerced the affiants to execute the same.
In INC Shipmanagement, Inc., et al. v. Moradas , the corroborating affidavits and statements of the vessel's officers and crew members must be taken as a whole and cannot just be perfunctorily dismissed as self-serving absent any showing that they were lying when they made the statements therein.
Respondent did not adduce evidence to show that the affiants, including Nanola, Ganhinhin, Verdida, and Diano, all of whom were employed by P&A, were coerced to execute an affidavit prejudicial to respondent. Respondent never questioned the evidentiary value of the affidavits at any stage of the proceedings. There was no single evidence submitted showing that petitioners have exerted undue pressure on the affiants.
The affidavits constitute substantial evidence to prove that respondent committed acts breaching the trust and confidence reposed on him by P&A. The colleagues and subordinates of respondent executed the affidavits based on t heir personal knowledge, and without any proof of coercion. Their statements, as discussed below, corroborate each other and leave no room for doubt as to the acts committed by
respondent.
An employer may terminate an employee for willful breach by the employee of trust reposed in him by his employer or duly authorized representative [Art. 297(c), Labor Code]. While the right of an employer to freely select or discharge his employees is subject to regulation by the State in the exercise of its paramount police power, there is also an equally established principle that
The following requisites must be satisfied to justify a valid dismissal based on loss of trust and confidence, to wit: (1) The employee concerned must be one holding a position of trust and confidence; and (2) There must be an act that would justify the loss of trust and confidence.
The two requisites are present in this case.
Respondent was a managerial employee. At the time of his termination, he was the Manager-inCharge of the Cebu operations and Director of the Visayas-Mindanao operations of P&A. Respondent failed to dispute that his position, as the highest ranking officer of P&A's VisayasMindanao operations, demanded utmost trust and confidence.
P&A's loss of trust and confidence is based on a willful breach of trust, and is founded on clearly
established facts. : In Mendoza v. HMS Credit Corporation, the Court distinguished the
degree of proof required in proving loss of trust and confidence in a managerial employee and a rank and file employee – With respect to
, loss of trust and confidence
as ground for valid dismissal requires proof of involvement in the alleged events in question, and that mere uncorroborated assertions and accusations by the employer will not be sufficient. But as regards a Hence, in the case of managerial employees, , such as when the employer has reasonable ground to believe that the employee concerned is responsible for the purported misconduct, and the nature of his participation therein renders him unworthy of the trust and confidence demanded by his position. Respondent breached the trust reposed in him by committing the following acts: (1) negotiating
to transfer to a competing firm while still employed with P&A; (2) enjoining a number of P&A's clients to transfer their audit business to a competing firm; (3) inviting P&A's staff to join him in his transfer to a competing firm; and (4) enjoining P&A's staff to engage in a sympathy strike during his preventive suspension.
The affidavits of Nanola, Ganhinhin, Verdida, and Diane show respondent's commission of these acts which are all in breach of the trust and confidence reposed in him by P&A.
In Elizalde International (Philippines) Inc. v. CA: One who asserts an interest, or performs acts adverse or disloyal lo one's employer commits
which may warrant discharge, e.g., where one secretly engages in a business which renders him a competitor and rival of his employer . An employer has the right to expect loyalty from
his employees as long as the employment relationship continues. When an employee deliberately acquires an interest adverse to his employer, he is disloyal, and his discharge is justified.
In Molina v. Pacific Plans, Inc.: An employer has a protectable interest in the customer relationships of its former employee established and/or nurtured while employed by the employer, and is entitled to protect itself from the risk that a former employee might appropriate customers by taking unfair advantage of the contract developed while working for the employer.
While respondent may have the liberty to express his views of the proposed merger, he was not justified when he told clients of P&A that the latter's reputation as provider of quality service is expected to deteriorate due to the merger and further induced them to patronize the rival firm he intended to join. As the Director of P&A's Visayas-Mindanao operations, owed duties of loyalty to P&A, his employer, to inform its clients about P&A's business decision to merge, for as long as he was still employed by P&A.
Respondent's act of inviting P&A's staff to conduct a sympathy strike is inconsistent with respondent's duty of fidelity and loyalty to P&A. In doing so, respondent urged his colleagues and subordinates to disregard their responsibilities as employees of P&A and sought to disrupt the latter's operations. Thus, P&A merely acted within its right as employer when it dismissed respondent. The acts he committed are sufficient basis for the loss of trust and confidence of P&A.
Article 292(b) of the Labor Code, in relation to the then applicable Section 2(d), Rule I of the Implementing Rules of Book VI, as amended by DO No. 10, s. of 1997, requires the employer to give the employee two written notices prior to his termination for just cause.
First notice must contain a statement of the causes for termination and shall afford the employee ample opportunity to be heard and to defend himself with the assistance of a representative if he so desires.
Second notice (notice of termination) must indicate that upon due consideration of all the circumstances, grounds have been established to justify the employee's termination.
P&A complied with the two-notice rule.
In Perez v. Philippine Telegraph and Telephone Company , the Court explained the meaning of "ample opportunity to be heard" under Article 292: To be heard "does not mean verbal argumentation alone inasmuch as one may be heard just as effectively through written explanations, submissions or
pleadings. While the phrase "ample opportunity to be heard" may in fact include an actual hearing, it is not limited to a formal hearing only.
(a) . (b) A formal hearing or conference becomes mandatory only when requested by the employee in writing or substantial evidentiary disputes exist or a company rule or practice requires it, or when similar circumstances justify it. (c) The "ample opportunity to be heard" standard in the Labor Code prevails over the "hearing or conference" requirement in the implementing rules and regulations.
Despite the lack of formal hearing or investigation, respondent was given ample opportunity to be heard. He was given the opportunity to refute the charges against him. In fact, his reply thoroughly discussed his justifications and defenses to the accusations imputed on him.
In view of the foregoing, respondent's dismissal from employment is valid. Thus, respondent's monetary claims against P&A and petitioners have no legal and factual basis.
, premises considered, the petition is hereby Appeals dated February 15, 2006 is hereby
.
and the decision of the Court of
Is the CA correct in finding that the NLRC committed grave abuse of discretion in denying respondent's claim for death benefits? –
As claimant for death benefits, respondent has the burden to prove by substantial evidence that his son's death is work-related and that it transpired during the term of his employment contract.
In this respect, respondent has discharged his burden. Simon died during the term of his contract. The next question is whether Simon's death was due to his deliberate act. That Simon's death was a result of his willful act is a matter of defense. Petitioners have the burden to prove this circumstance by substantial evidence.
The Court finds that petitioners discharged their burden to prove that Simon committed suicide.
In Unicol Management Services, Inc. v. Malipot, the Court considered the Master's Report and the Investigation Report, among others, in ruling that the seaman's beneficiaries were not entitled to death benefits. It noted that these documents completely detailed the events that transpired prior to and the circumstances leading to t he discovery of his death by suicide.
The Master's Report and the Statement of Facts described the events that occurred prior to, during and after the incident when Simon went overboard. In particular, Simon declined the Master's invitation for him to join the party; thereafter, the Master reprimanded him because he per formed poorly in the
drill; Simon left the meeting and was l ater seen to jump overboard by Ocleasa. Added to this narration is the statement of the crew in the Investigation Report that Simon was a "very sensitive" person.
The Investigation Report addressed the question on why Ocleasa did not sign said report. As stated therein, he already disembarked from the vessel when the report was executed and was investigated at the (local) office, where he stated that he saw Simon jump overboard.
More importantly, the fact that Simon committed suicide is bolstered by the suicide note that he executed.
As such, to refute petitioners' position that Simon committed suicide, the burden of evidence shifts to respondent.
In this regard, respondent failed to discharge his burden and only relied on the alleged negligence of the Master in ordering the conduct of the drill. Respondent argues that Simon could not have written a suicide note because of the proximity of the time when the drill was conducted and the time when Simon jumped overboard.
No proof was presented indicating that said suicide note was fabricated, as no specimen of Simon's handwriting was submitted to prove that it was not written by him.
On the contrary, the signature in the suicide note and the signature of Simon in his employment contract appear to be the same. Hence, by substantial evidence, there are adequate reasons and proof that Simon committed suicide.
Under Section 20(D) of the POEA SEC, no compensation or benefits shall arise in case of death of a seafarer resulting from his willful act, provided that the employer could prove that such death is
attributable to the seafarer.
Although Simon died during the term of his contract with petitioners, still, respondent is not entitled to receive benefits arising from his death. As clearly established, Simon died by his willful act of committing suicide and death under that circumstance is not compensable under the POEA SEC.
, the Petition is
. The February 22, 2012 Decision and July 24, 2012 Resolution of
the Court of Appeals in CA-G.R. SP No. 119775 are
and
.
WON Osias is entitled to the permanent and total disability given that the 120 days prescribed by law has already lapsed.
There are two periods that should be reckoned with 120 days and 240 days. Jurisprudence and law both recognizes that there are certain disabilities that will be deemed total and permanent if it lasted for more than 120 days under the Labor Code, however in the implement rules it was stated "except if such disability still requires medical attendance for more than 120 days but not more than 240 days." These 2 statutes must be read in consonance with each other. In this case, Osias' medical condition cannot be considered as permanent and total disability since he was declared fit to return to work after 147 days. It must be noted also that the delay was caused respondent
himself and the fact that the medical certificate certifying the unfitness or declaring the permanent and total disability must be done by the company designated physician; since under the law it is an indispensible requirement.
: w/n the employees are entitled to reinstatement with full backwages
:
There was no habitual neglicence on their part. In termination cases, the employer bears the burden of proving that the dismissal of the employee is for a just or an authorized case. Failure to dispose of the burden would imply that the dismissal is not lawful and that the employee is entitled to reinstatement, backwages and accruing benefits. whether they are entitled to backwages due to the illegal constructive dismissal
Petitioners, as regular employees, are deemed to have been constructively and illegally dismissed by respondents. Being on floating status and off-detailed for more than six months, not having been reinstated and reassigned by respondents, petitioners are considered to have been constructively dismissed. Settled is the rule that an employee who is unjustly dismissed from work shall be entitled to reinstatement, or separation pay if reinstatement is no longer viable, and to his full backwages. Whether Beja is entitled to compensation?
Petition is partly meritorious.
Beja has not presented any proof of his allegation that he met an accident on board the vessel. No accident report existed nor any medical report issued indicating he met an accident while on board. It was all based on pure allegation. Evidence submitted by petitioners disputed Beja’s allegations. Certifications by the
Master of the vessel and Chief Engineer affirmed that Beja never met an accident on board nor was he injured while in the performance of his duties under their command.
Provision should be read in harmony with each other, thus: (a) the 120 days provided under Section 20 B(3) of the POEA-SEC is the period given to the employer to determine fitness to work and when the seafarer is deemed to be in a state of total and temporary disability; (b) the 120 days of total and temporary disability may be extended up to a maximum of 240 days should the seafarer require further medical treatment; and (c) a total and temporary disability becomes permanent when so declared by the company-designated physician within 120 or 250 days, as the case may be, or upon the expiration of the said periods without a declaration of either fitness to work or disability assessment and the seafarer is still unable to resume his regular seafaring duties.
Beja was repatriated on November 21, 2007. Roughly a month after his right knee operation, Dr. Cruz rendered a Grade 10 and 13 partial disability grading of his medical condition. Although he was given grades 10 and 13 combined disability rating by Dr. Cruz, this assessment may only be considered as tentative because he still continued his physical therapy session, which went beyond 240 days.
There was no assessment that Beja was found fit to resume sea duties before the end of the 240 day period. Beja’s allegation that he has not been able to perform his usual activities has not been contradicted by
petitioner or by contrary documentary evidence. In fact, in his medical report, Dr. Matias opined that there was still difficulty in Beja’s knee movements. Beja should be deemed to be suffering permanent total
disability.
In the case at bar, Beja filed the complaint on May 15, 2008. Dr. Cruz issued his assessment only on May 26,
2008 or 187 days from Beja’s repatriation. Due to Dr. Cruz’s failure to issue a disability rating within 120 -
days period, a conclusive presumption that Beja is totally and permanently disabled arose. There was no need for Beja to secure an opinion from his own doctor or resort to a third doctor as prescribed under Section 20 B (3) of the POEA-SEC.
The CA is correct in affirming the NLRC’s award of permanent total disability benefit to Beha. It erred in
pertaining to the CBA in granting the award relative to the amount due : Whether or not the employees were ill egally dismissed.
Respondents were illegally dismissed. Petitioner utterly failed to establish the requisite for abandonment of work 1) that the employees has failed to report for work or must be absent without valid or justifiable reasons 2) that there must have been a clear intention to severe th employee-employer relationship by some overt acts
In this case there were no showing of any overt act of the respondents that would point of an intention to abandon their work.
Whether the dismissal was legal? Whether Verzo was properly apprised of the standards for his regularization?
The Court finds that Enchanted had basis when it decided not to continue with the services of Verzo as SHMIM.
First, while the CA leaned heavily on the fact that the performance evaluation given by Enchanted did not specify the instances of Verzo’s unfitness, it should be pointed out that Verzo himself admitted that the
performance evaluation he received on February 3, 2010 was accompanied by the respective reports of Schoefield, Montemayor and Velesrubio. As earlier stated, these reports detailed the reasons why Verzo failed to meet the standards set by Enchanted and compromised the safety of its patrons.
Second, granting that Verzo was not informed of his specific duties and responsibilities, nonetheless, his dismissal was valid because he failed to adhere to the dictates of common sense which required that he act in accordance with the necessary work ethics and basic skills required by his position as SH -MIM and by his
profession as licensed engineer.
Third, while the CA considered the fact that Velesrubio advised Verzo to resign because he was not going to be regularized even before his performance appraisal, the Court finds that such should not be taken as an indication of bad faith on the part of Enchanted. For this Court, the same could only be Velesrubio’s own opinion of Verzo, because he was the one supervising his performance. Whether Enchanted had decided to discontinue Verzo’s employment cannot, at that point, be said to have been a foregone conclusion.
Suffice it to state that Enchanted was able to substantially comply with the requirement of the law in apprising him of the standards for his regularization. Verily, the purpose of the law in requiring that an employee be notified of the standards for his regularization during his probationary employment is to simply afford him due process, so that the employee will be aware that he will be under close observation and his performance of his assigned duties and functions would be under continuous scrutiny by his superiors.
Moreover, while it may be argued that ideally employers should immediately inform a probationary employee of the standards for his regularization from day one, strict compliance thereof is not required. The true test of compliance with the requirements of the law is, of course, one of reasonableness. As long as the probationary employee is given a reasonable time and opportunity to be made fully aware of what is expected of him during the early phases of the probationary period, the requirement of the law has been
satisfied.
W/N the CA erred in dismissing the petitioner
YES. Before going to the issues of the case, the court noted that the petitioner failed to attach copies of the decision of the LA and the NLRC in this petition. That alone would have been a ground to dismiss the case outright. However since what is at stake is petitioners livelihood itself, leniency should be applied in order to serve t he ends of justice
Essentially, the purpose of this service is to apprise such party of the pendency of an action in the CA. Thus, if such party had already been notified of the same and had even participated in the proceedings, such purpose would have already been served.
o
In this case, respondents were informed and even filed their Comment to the petition. Thus, the purpose of the rule had been achieved. It would have been "more prudent for the Court [of Appeals] to excuse a technical lapse and afford the parties a substantive review of the case in order to attain the ends of justice than to dismiss the same on mere technicalities."
The Court of Appeals dismissed the petition on account of petitioner's failure to incorporate a written explanation on why the NLRC's copy was not personally served to the agency.
o
Petitioner explained in her Motion for Reconsideration that her former counsel had died, which gave her little time to find and engage the services of her present counsel before the lapse of the period for filing the petition. That day that the pleadings were sent via registered mail was already the last day of filing, and with heavy rains at that time, her counsel had anticipated that they would not be able to beat the deadline in filing the petition before the Court of Appeals, prompting her counsel to resort to registered mail.
As to the supposed failure to implead the NLRC, the Court finds that the NLRC was, in fact, impleaded in the case, based on the body of the petition. Under the section on Parties , the NLRC was named as one of the parties to the case.Clearly, the failure to include public respondent's name in the title was mere inadvertence.
The other ground cited by the Court of Appeals, i.e., counsel's failure to i ndicate his roll number and the place of the notary public's commission, does not affect the merits of the petition. The appellate
court could have simply asked petitioner's counsel to submit the information instead of dismissing the case outright. Likewise, we deem that petitioner should not be penalized for the omissions of her counsel and deserves to have her case properly ventilated at the appellate court.
Counsel's actions are binding on his client. Petitioner in this case would have had her entire case thrown out, with all hope for proper review and determination lost, through no fault of her own but merely because of her counsel's carelessness in preparing and filing the pleadings. It is only the Court's discretion that petitioner's cause needs a chance to be properly reviewed and reevaluated that has kept this case alive. Counsel is therefore reminded of his duty to "serve his client with competence and diligence" and ensure that the pleadings he files comply with all the requirements under the pertinent rules.
Whether the appeal bond posted accompanied by a motion to reduce bond is reasonable in order to suspend the period to perfect an appeal.
While it has been settled that the posting of a cash or surety bond is indispensable to the perfection of an appeal in cases involving monetary awards from the decision of the LA, in several cases, the Court has relaxed this stringent requirement whenever justified. Thus, the Rules – specifically Section 6, Rule VI – thereof, allow the reduction of the appeal bond upon a showing of: (a) the existence of a meritorious ground for reduction, and (b) the posting of a bond in a reasonable amount in relation to the monetary award.
In Nicol vs. Footjoy Industrial Corp., the Court summarized the guidelines under which the NLRC must exercise its discretion in considering an appellant’s motion for reduction of bond in this wise:
“The bond requirement on appeals involving monetary awards has been and may be relaxed
in meritorious cases. These cases include instances in which (1) there was substantial compliance with the Rules, (2) surrounding facts and circumstances constitute meritorious grounds to reduce the bond, (3) a liberal interpretation of the requirement of an appeal bond would serve the desired objective of resolving controversies on the merits, or (4) the appellants, at the v ery least, exhibited their willingness and/or good faith by posting a partial bond during the reglementary period.
Here, Quantum posted a partial bond in the amount of P400,000, or more than twenty percent (20%) of the monetary judgment, within the reglementary period to appeal, together with the Motion to Reduce Bond anchored on its averred difficulty in raising the amount of the bond and searching for an insurance
company that can cover said amount within the short period of time to perfect i ts appeal. Before the NLRC could even act on the Motion to Reduce Bond, Quantum posted a surety bond from an accredited insurance company covering fully the judgment award.
As to what constitutes “a reasonable amount of bond” that must accompany the motion to reduce bond in
order to suspend the period to perfect an appeal, the Court, in McBurnei vs. Ganzon, pronounce:
To reduce that the provisions of Section 6, Rule VI of the NLRC Rules of Procedure that give parties the chance to seek a reduction of the appeal bond are effectively carried out, without however defeating the benefits of the bond requirement in favor of a winning litigant, all motions to reduce bond that are to be filed with the NLRC shall be accompanied by the posting of a cash or surety bond equivalent to 10% of the monetary award that is subject of the appeal, which shall provisionally be deemed the reasonable amount of the bond in the meantime that an appellant’s
motion is pending resolution by the Commission. ..
Hence, the posting of a P400,000 cash bond equivalent to more than 20% of the monetary judgment, together with Motion to Reduce Bond within the reglementary period was sufficient to suspend the period to perfect the appeal. The posting of the said partial bond coupled with the subsequent posting of a surety bond in an amount equivalent to the monetary judgment also signified Quantum’s good faith and willingness to recognize the final outcome of its appeal.
It should be emphasized that the NLRC has full discretion to grant or deny the motion to reduce bond, and its ruling will not be disturbed unless tainted with grave abuse of discretion. Verily, an act of a court of tribunal can only be considered to be tainted with grave abuse of discretion when such act is done in a capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction, which clearly is not extant with respect to the NLRC’s cognizance of Quantum’s appeal. Far from having gravely abused its
discretion, the NLRC correctly preferred substantial justice over the rigid and stringent application of procedural rules.
[ G.R. No. 202215, December 09, 2015 ] VICMAR DEVELOPMENT
1. Whether or not the respondents were considered as regular employees, 2. Whether or not there was a valid independent contracting.
CORPORATION, et al., petitioners, vs. CAMILO ELARCOSA, MARLON BANDA, DANTE L. BALAMAD, et al., respondents.
The SC affirmed the decision of the CA and ruled that the Respondents were regular employees. Section 280 of the Labor Code defines a regular employee as one who is 1) engaged to perform tasks usually necessary or desirable in the usual business or trade of the employer, unless the employment is one for a specific project or undertaking or where the work is seasonal and for the duration of a season; or 2) has
rendered at least 1 year of service, whether such service is continuous or broken, with respect to the activity for which he is employed and his employment continues as long as such activity exists. 66
The test to determine whether an employee is regular is the reasonable connection between the activity he performs and its relation to the employer's business or trade, as in the case of respondents assigned to the boiler section. Nonetheless, the continuous re-engagement of all respondents to perform the same kind of tasks proved the necessity and desirability of their services in the business of Vicmar. 72 Likewise, considering that respondents appeared to have been performing their duties for at least one year is sufficient proof of the necessity, if not the indispensability of their activities in Vicmar's business.73
On the second issue, to determine the existence of independent contractorship, it is necessary to establish that the contractor carries a distinct and independent business, and undertakes to perform work on its own account and under its responsibility and pursuant to its own manner and method, without the control of the principal, except as to the result; that the contractor has substantial capital or investment; and, that the agreement between the principal and the contractor assures the contractual employees to all labor and occupational safety and health standards, to right to self-organization, security of tenure and other benefits.
Other than their respective Certificates there was no showing that the contractors have substantial capital or investment, tools and the like. Neither was it established that they owned equipment and machineries for the purported contracted job. Also, the allegation that they had clients other than Vicmar remained to be bare assertion without corresponding proof. More importantly, there was no evidence presented that these contractors undertook the performance of their service contracts with Vicmar pursuant to their own
manner and method, without the control and supervision of Vicmar.
(1) Whether or not WMMI and GRMS engaged in labor-only contracting (2) Whether or not Dalag was illegally dismiised
(1) Yes. WMMI and GRMS engaged in labor-only contracting. First, GRMS lacked the substantial capital.
It may be that the DOLE Regional Director for the National Capital Region was satisfied by GRMS' capitalization as reflected on its financial documents, but the basis for determining the substantiality of a company's "capital" rests not· only thereon but also on the tools and equipment it owns in relation to the
job, work, or service it provides. DO 18- 02 defines "substantial capital or investment" in the context of labor-only contracting as referring not only to a contractor's financial capability, but also encompasses the tools, equipment, implements, machineries and work premises, actually and directly used by the contractor or subcontractor in the performance or completion of the job, work or service contracted out. Here, the Certificate of Registration may have prevented the presumption of labor-only contracting from arising, but the evidence Dalag adduced was sufficient to overcome the disputable presumption that GRMS is an independent contractor. To be sure, in performing his tasks, Dalag made use of the raw materials and
equipment that WMMI supplied. He also operated the side-seal machine in the workplace of WMMI, not of GRMS. With these attendant circumstances, the Court rules that the first confirmatory element indubitably exists. Second, WMMI exercised control over the employees supplied by GRMS. The second confirmatory element under DO 18-02 does not require the application of the economic test and, even more so, the four-fold test to determine whether or not the relation between the parties is one of labor only contracting. All it requires is that the contractor does not exercise control over the employees it supplies, making the control test of paramount consideration. The fact that Golden Rock pays for Dalag's wages and salaries then has no bearing in resolving the issue. Here, notwithstanding the contract stipulation leaving Golden Rock the exclusive right to conirol the working warm bodies it provides WM MFG, evidence irresistibly suggests that it was WM MFG who actually exercised supervision over Dalag's work performance. As culled from the records, Dalag was supervised by WM MFG's employees. Having ascertained that the essential element and at least one confirmatory element obtain in the extant case, there is then no other result than for the Court to rule that WM MFG and Golden Rock engaged in laboronly contracting. As such, they are, by legal fiction, considered principal and agent, respectively, jointly and severally liable to their illegally dismissed employees, in accordance with Art. 109 of the Labor Code66 and Sec. 19 of DO 18-02.
(2)
No. WMMI dismissed Dalag for just cause, but did not comply with the procedural requirements.
To constitute just cause for an· employee's dismissal, the neglect of duties must not only be gross but also
habitual. Gross neglect means an absence of that diligence that an ordinarily prudent man would use in his own affairs. Meanwhile, to be considered habitual, the negligence must not be a single or isolated act. Here, WM MFG duly established that Dalag was terminated for just cause on the second ground. The litany of Dalag's infractions, as detailed in memos 20 l 0-13 up to 2010-18 demonstrated how Dalag repeatedly
failed to report to his supervisor the problems he encountered with the side-seal machine assigned to him for operation. This failure resulted in repeated machine breakdowns that caused production and delivery delays, and lost business opportunities for the company.
Petition granted.
1. W/N Iladan’s resignation was voluntary 2. W/N placement fee was paid
In illegal dismissal cases, the employer has the burden of proving that the employee's dismissal was legal. However, to discharge this burden, the employee must first prove, by substantial evidence, that he had been dismissed from employment. Iladan did not adduce any competent evidence to prove that respondents used force and threat.
In the instant case, Il adan executed a resignation letter in her own handwriting.
She also accepted the amount of P35,000.00 as financial assistance and executed an Affidavit of Release, Waiver and Quitclaim and an Agreement, as settlement and waiver of any cause of action against respondents.
o
The affidavit of waiver and the settlement were acknowledged/subscribed before Labor Attache Romulo on August 6, 2009, and duly authenticated by the Philippine Consulate. An affidavit of waiver duly acknowledged before a notary public is a public document which cannot be impugned by mere self-serving allegations. Proof of an irregularity in its execution is absolutely essential. The Agreement likewise bears the signature of Conciliator-Mediator Diaz. Thus, the signatures of these officials sufficiently prove that Iladan was duly assisted when she signed the waiver and settlement.
Court finds no sufficient evidence that payment had been made.
o
Iladan and her mother's affidavit attesting to its payment are self-serving evidence and deserve no weight at all. Neither did the mortgage loan and deed of transfer executed in favor of third persons as well as the letter from Nippon prove that placement fee was paid to respondents. These documents merely show that Iladan is indebted to certain persons and to Nippon; however, they do not prove that these indebtedness were incurred in connection with the placement fee she purportedly paid to respondents. As aptly ruled by the CA, Iladan has the burden of proving, with clear and convincing evidence, the fact of payment.
Whether there was lawful termination?
The offer or transfer is, in legal contemplation, a promotion, which the respondents validly refused. Such refusal cannot be the basis for the respondents’ dismissal. For promotion to occur, there must be an advancement from one position to another or an upward vertical movement of the employee’s rank. An
employee is not bound to accept a promotion, which is in the nature of a gift or reward. Refusal to be promoted is a valid exercise of a right. Such exercise cannot be considered in law as insubordination, or willful disobedience of a lawful order of the employer, hence, it cannot be the basis of an employee’s
dismissal from service.
In the case at bar, a Warehouse Checker and a Forklift Operator are rank and file employees. The job of Delivery Coordinators requires the exercise of discretion and judgment from time to time. Hence, they are not the same weight as those of Warehouse Checker or Forklift Operator. Despite the fact that no salary increases were effected, the assumption of the post of a Delivery Coordinator should be considered a promotion. The respondents’ refusal to accept the same was valid.
A dismissal may be contrary to law but by itself alone, it does not establish bad faith to entitle the dismissed employee to moral damages. Damages cannot be justified solely upon the premise that the employer dismissed his employee without just or authorized cause. In the case at bar, the right not to accept an offered promotion pertained to each of the respondents. However, they exhibited disrespectful behavior by their repeated refusal to receive the memoranda. Although the court finds the dismissal unwarranted, there is no basis for the moral and exemplary damages in their favor. Echo merely imposed disciplinary penalties upon the respondents intransigence.
The court further ruled that there was no Unfair Labor Practice in this case. Unfair labor practices violate the constitutional right of workers and employees to self-organization. The respondents allege that their transfer/promotion was intended to deprive the Union of leadership and membership. However it lack substantiation. Unfair labor practice is a serious charge, and the respondents failed to show that the petitioners conclusively interfered with, restrained, or coerced employees in the exercise of their right to
self-organization.
Labor Relations Issue: -
WON HSBC complied with a valid dismissal?
Illegal dismissal of union members who
Ruling: HSBC should be held liable for non compliance for two types of illegal dismissal substantive and
went on strike
procedural due process, while the other was based on a valid cause but lacked compliance with procedural due process. Employees unlawfully
G.R. No. 153635. January 11, 2016
terminated without substantive and procedural due process is to entitle them to the reliefs provided under Article 279 of the Labor Code, that is, reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and other benefits or their monetary equivalent computed from the time the compensation was withheld up to the time of actual reinstatement. However no backwages during the stike will be awarded when employees voluntarily go on strike. Meanwhile non-compliance to procedural process renders HSBC liable to pay nominal damages.
1) WON PAL illegally dismissed union employees who participated in the strike and lockout?
Whether the Decision in the 1 st case constitutes res judicata to the present case [2nd case]?
PAL illegally dismissed Jadie, an employee already on maternity leave during the strike who did not join the said strike. Hence Jadi i s entitled to separation pay, specifically, (1) separation pay equivalent to one month salary for every year of service in lieu of reinstatement; (2) backwages from June 9, 1998; (3) longevity pay at P500.00/month for every year of service based on seniority date falling after June 9, 1 998; (4) Christmas bonuses; (5) Jadie’s proportionate share in the P5 Million contribution of PAL to the Retirement Fund; and cash equivalent of vacation leaves and sick leaves which Jadie earned after June 9, 1998 and other benefits prior to her illegal dismissal such as (1) unpaid salaries for June 1 to
8, 1998; and (2) productivity allowance, transportation allowance, and rice subsidy for May 1998 and June 1 to 8, 1998. All monetary awards due Jadie shall earn legal interest of 6% per annum from date of finality of this Decision until fully paid. The SC dismissed the peititon of other employees for lack of merit - Rodriguez, Alisangco, Benjamin T. Ang, Vicente P. Ang, Arroyo, Baquiran, Wilfredo S. Cruz, Delos Reyes, Ecarma, Galisi M, Garcia, Gutiza, Jose, Labuga, Lastimoso, M atias, Maturan, Ocharan, Piamonte, Sabado, Sanchez, Corpus, and Alcaneses and denying the motion for leave to reinstate Elmer F. Pefia, Antonio P. Noble, Baltazar B. Musong, Nicomen H. Versoza and Ryan Jose C. Hinayon
2) The Court, in the 2nd ALPAP case, acknowledged the illegal dismissal cases instituted by the individual ALPAP members before the NLRC following their termination for the strike in June 1998 (which were apart from the Strike and Illegal Lockout Cases of ALPAP before t he DOLE Secretary) and affirmed the jurisdiction of the NLRC over said illegal dismissal cases. The Court, though, also expressly pronounced in the 2nd ALPAP case that “the pendency of the foregoing cases should not and could not affect the character of our
disposition over the instant case. Rather, these cases should be resolved in a manner consistent and in accord with our present disposition for effective enforcement and execution of a final judgment.”
The Petitions at bar began with the Illegal Dismissal Case of Rodriguez, et al. and eight other former pilots of PAL before the NLRC. Among the Decisions rendered by Labor Arbiter Robles, the NLRC, and the Court of Appeals herein, it is the one by the NLRC which is consistent and in accord with the disposition for
effective enforcement and execution of the final judgments in the 1st and 2nd ALPAP cases.
The 1st and 2nd ALPAP cases which became final and executory on August 29, 2002 and September 9, 2011, respectively, constitute res judicata on the issue of who participated in the illegal strike in June 1998 and whose services were validly terminated.
The elements for res judicata in the second concept, i.e., conclusiveness of judgment, are extant in these cases. There is identity of parties in the 1st and 2nd ALPAP cases, on one hand, and the Petitions at bar. While the 1st and 2nd ALPAP cases concerned ALPAP and the present Petitions involved several individual members of ALPAP, the union acted in the 1st and 2nd ALPAP cases in representation of its members. In fact, in the 2nd ALPAP case, the Court explicitly recognized that the complaint for i llegal lockout was filed by ALPAP on behalf of all its members who were returning to work. Also in the said case, ALPAP raised, albeit belatedly, exactly the same arguments as Rodriguez, et al. herein. Granting that there is no absolute identity of parties, what is required, however, for the application of the principle of res judicata is not absolute, but only substantial identity of parties. ALPAP and Rodriguez, et al. share an identity of interest from which flowed an identity of relief sought, namely, the reinstatement of the terminated ALPAP members to their former positions. Such identity of interest is sufficient to ma ke them privy-in-law, one to the other, and meets the requisite of substantial identity of parties.
There is likewise an identity of issues between the 1st and 2nd ALPAP cases and these cases. Rodriguez, et al., insist that they did not participate in the June 1998 strike, being on official leave or scheduled off-duty. Nonetheless, on the matter of determining the identities of the ALPAP members who lost their employment status because of their participation in the illegal strike in June 1998, the Court is now conclusively bound by its factual and legal findings in the 1st and 2nd ALPAP cases.
In the 1st ALPAP case, the Court upheld the DOLE Secretary’s Resolution dated June 1, 1999 declaring that
the strike of June 5, 1998 was i llegal and all ALPAP officers and members who participated therein had lost their employment status. The Court in the 2nd ALPAP case ruled that even though the dispositive portion of the DOLE Secretary’s Resolution did not specifically enumerate the names of those who actually
participated in the illegal strike, such omission cannot prevent the effective execution of the decision in t he 1st ALPAP case. The Court referred to the records of the Strike and Illegal Lockout Cases, particularly, the logbook, which it unequivocally pronounced as a “crucial and vital piece of evidence.” In the words of the Court in the 2nd ALPAP case, “[t]he logbook with the heading ‘Return-To-Work Compliance/Returnees’
bears their individual signature signifying their conformity that they were among those workers who returned to work only on June 26, 1998 or after the deadline imposed by DOLE. x x x In fine, only those returning pilots, irrespective of whether they comprise the entire membership of ALPAP, are bound by the June 1, 1999 DOLE Resolution.”
Labor Relations Issue: - Illegal
WON PAL illegally dismissed union employees who participated in the strike and lockout?
Dismissal Ruling:
G.R. No. 178501/G.R. No. 178510. January 11, 2016
Whether or not there is an employer – employee relationship between Petitioner and Respondents
Lapastora was a regular employee of OHI. His uninterrupted employment from March 3, 1995 until he was placed on floating status on February 2000 manifests the continuing need and desirability of his services, which characterize regular employment
By the nature of its business of managing condominium condominium units, it is imperative that OHI maintains a pool of housekeeping staff. It is no wonder why Lapastora, among several others, was continuously employed by OHI precisely because of the indispensability of their services to its business. The fact alone that Lapastora was allowed to work for an unbroken period of almost five years is all the same a reason to
consider
him
a
regular
employee.
The attainment of a regular status of employment guarantees the employee's security of tenure that he cannot be unceremoniously unceremoniously terminated from employment. "To justify fully the dismissal of an employee, the employer must, as a rule, prove that th e dismissal was for a just cause and that the employee was afforded due process prior to dismissal. As a complementary principle, the employer has the onus of proving with clear, accurate, consistent, and convincing evidence the validity of the dismissal.
Whether or not Quiro- quiro’s dismissal was valid and complied with due process requirements.
Yes. Quiro-quiro was validly dismissed. BCCCDI was able to prove by substantial substantial evidence that Quiro-quiro’s dismissal is lawful. BCCCI presented documents and affidavits establishing Quiro- quiro’s gross negligence and her breach of respondent’s trust and confidence in her. We agree with the finding of the CA that Quiroquiro’s “inability to stop during her watch an over withdrawal by one member, amounting to P250,000.00,” and followed by a series of monthly withdrawals, “constitutes gross and habitual neglect of duty that is a just cause for h er dismissal.” Clearly, Quiro-quiro’s act of allowing the over withdrawal of P250,000 on the
time deposit placement of a member and her subsequent inaction and non-rectification of such misconduct misconduct breached respondent’s trust and confidence in her, warranting the penalty of dismissal. While Quiro-quiro's
dismissal is lawful, we sustain the award of P30,000 nominal damages in favor of Quiro-quiro for BCCCDI's nonobservance of the due process requirements in dismissing her. Furthermore, the 48 hours given to Quiro-quiro to explain her side was insufficient time to consult the union official or lawyer, gather data and evidence and decide on her defenses. Quiro-quiro should have been given at least five calendar days from from receipt of the notice to prepare for her defense. Notwithstanding, the lack of statutory due process does not nullify the dismissal or render it illegal or ineffectual when the dismissal was for just cause, but it will merit the grant of nominal damages as indemnification.
Petition denied.
Whether or not the CA correctly ruled that the NLRC did not commit grave abuse of discretion in ruling that petitioners were not regular employees who may only be dismissed for just and authorized causes.
NO. In the case at bar, the CA disregarded the repeated renewals of the Contracts of Retainer of petitioners spanning a decade and a half. While vague in its sparseness, the Contract of Retainer very clearly spelled out that LSGI had the power of control over petitioners. It i s enough that the employer has the right to wield that power. In all, given the following: ( 1) repeated renewal of petitioners' contract for fifteen years, interrupted only by the close of the school year; (2) the necessity of the work performed by petitioners as school physicians ~and dentists; and (3) the existence of LSGI's power of control over the means and method pursued by petitioners in the performance of their job, we rule that petitioners attained regular employment, entitled to security of tenure who could only be dismissed for just and authorized causes. Consequently, petitioners were illegally dismissed and are entitled to the twin remedies of payment of separation pay and full back wages. We order separation pay in lieu of reinstatement given the time that has lapsed, twelve years, in the litigation of this case.
Petition granted.
[ G.R. No. 208986 January 13, 2016 ]
Whether a decision in a certification election does foreclose further dispute as to the existence or non-existence of an employer-employee relationship.
HIJO RESOURCES CORPORATION, petitioner, vs.
The Med-Arbiter's order in this case dismissing the petition for certification election on the
EPIFANIO P. MEJARES, et
basis of non-existence of employer-employee relationship was issued after the members of the respondent
al., respondents.
union were dismissed from their employment. The purpose of a petition for certification election is to determine which organization will represent the employees in their collective bargaining with the
employer.The respondent union, without its member-employees, was thus stripped of its personality to challenge the Med-Arbiter's decision in the certification election case. Thus, the members of the respondent union were left with no option but to pursue their illegal dismissal case filed before the Labor Arbiter. To dismiss the illegal dismissal case filed before the Labor Arbiter on the basis of the pronouncement of the Med-Arbiter in the certification election case that there was no employer-employee relationship between the parties, which the respondent union could not even appeal to the DOLE Secretary because of the dismissal of its members, would be tantamount to denying due process to the complainants in the illegal dismissal case. This, Supreme Court cannot allow.
Is respondent entitled to permanent and total disability benefits?
The respondent has no cause of action because the company-designated physician has not yet issued an assessment on respondent's medical condition; moreover the 240-day maximum period for treatment has not yet lapsed.
The records clearly show that respondent was still undergoing treatment when he filed the complaint. On November 12, 2009, the physiatrist even advised respondent to seek the opinion of an orthopedic specialist42 Respondent, however, did not heed the advice, instead, he proceeded to file a Complaint on November 23, 2009 for disability benefits. And, i t was only a day after its filing (or on November 24, 2009)
that respondent requested from the company-designated doctor the latter's assessment on his medical condition. Stated differently, respondent filed the Complaint within the 240-day period while he was still under the care of the company-designated doctor. Significantly, we note that respondent has not even consulted his doctor-of-choice before instituting his Complaint for disability benefits.
Clearly, the Complaint was premature. Respondent has no cause of action yet at the time of its filing as the company-designated doctor has no opportunity to definitely assess his condition because he was still undergoing treatment; and the 240-day period had not lapsed. 43 Moreover, he has no basis for claiming permanent and total disability benefits because he has not yet consulted his doctor-of-choice.
Section 20(D) of the POEA-SEC "[n]o compensation and benefits shall be payable in respect of any injury, incapacity, disability or death of the seafarer resulting from his willful or criminal act or , provided however, that the employer can prove that such injury, incapacity, disability or death is directly attributable to the seafarer."
Moreover, on April 20, 2010, the company-designated physician reported that had respondent "been cooperative with his treatment and shown interest in improving his medical condition, it is possible to declare him fit to work on board as a fitter and in any capacity. For this reason, [he advised] that the permanent unfitness clause does not apply in his case.
Respondent was well aware of the need for him to undergo and continue his PT sessions. He even admitted
during the grievance proceedings on his disability claim that he was advised to continue his PT until March 15,
2010.
Indeed, respondent did not comply with the terms of the POEA-SEC. The failure of the company-designated doctor to issue an assessment was not of his doing but resulted from respondent's refusal to cooperate and undergo further treatment. Such failure to abide with the procedure under the POEA-SEC results in his nonentitlement to disability benefits.
[ GR No. 212070, January 27, 2016 ]
Whether or not the CA correctly ascribed grave abuse of discretion on the part of the NLRC in ruling that Carbonilla, Jr.'s dismissal was valid.
CEBU PEOPLE'S MULTIPURPOSE COOPERATIVE, petitioner, vs. NICERATO E.
In labor disputes, grave abuse of discretion may be ascribed to the NLRC when, inter alia, its findings and
CARBONILLA, JR.,
conclusions are not supported by substantial evidence, or that amount of relevant evidence which a
respondent.
reasonable mind might accept as adequate to justify a conclusion.
Guided by the foregoing considerations, the Court finds that the CA committed reversible error in granting Carbonilla, Jr.'s certiorari petition since the NLRC did not gravely abuse its discretion in ruling that he was
validly dismissed from employment as CPMPC was able to prove, through substantial evidence, the existence of just causes warranting the same.
Basic is the rule that an employer may validly terminate the services of an employee for enumerated under Article 296 (formerly Article 282) of the Labor Code.
As may be gathered from the tenor of CPMPC's Notice of Dismissal, it is apparent that Carbonilla, Jr.'s employment was terminated on the grounds of, among others, serious misconduct and loss of trust and confidence.
On the first ground, case law characterizes misconduct as a transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character and implies wrongful intent and not mere error in judgment. For misconduct to be considered as a just cause for termination, the following requisites must concur: (a) the misconduct must be serious; (b) it must relate to the performance of the employee's duties showing that the employee has become unfit to continue working for the employer; and (c) it must have been performed with wrongful intent.
All of the foregoing requisites have been duly established in this case. Records reveal that Carbonilla, Jr.'s serious misconduct consisted of him frequently exhibiting disrespectful and belligerent behavior, not only to his colleagues, but also to his superiors. He even used his stature as a law graduate to insist that he is
"above" them, often using misguided legalese to weasel his way out of the charges against him, as well as to strong-arm his colleagues and superiors into succumbing to his arrogance.
Indisputably, Carbonilla, Jr.'s demeanor towards his colleagues and superiors is serious in nature as it is not only reflective of defiance but also breeds of antagonism in the work environment. Surely, within the bounds of law, management has the rightful prerogative to take away dissidents and undesirables from the workplace. It should not be forced to deal with difficult personnel, especially one who occupies a position of trust and confidence, as will be l ater discussed, else it be compelled to act against the best interest of its business.
For another, Carbonilla, Jr.'s dismissal was also justified on the ground of loss of trust and confidence. According to jurisprudence,
will validate an employee's dismissal when it is
shown that: (a) the employee concerned holds a position of trust and confidence; and ( b) he performs an act that would justify such loss of trust and confidence.93 There are two (2) classes of positions of trust: first, managerial employees whose primary duty consists of the management of the establishment in which they are employed or of a department or a subdivision thereof, and to other officers or members of the managerial staff; and second, fiduciary rank-and-file employees, such as cashiers, auditors, property custodians, or those who, in the normal exercise of their functions, regularly handle significant amounts of money or property. These employees, though rank-and-file, are routinely charged with the care and custody of the employer's money or property, and are thus classified as occupying positions of trust and confidence.
Whether there was violation of TCIS’s right to due process?
Section 3, Rule 38 of the Rules of Court states that, a party filing a petition for relief from judgment must strictly comply with 2 reglementary periods: The petition must be filed within 60 days from knowledge of the judgment, order or other proceeding to be set aside; within a fixed period of 6 months from entry of such judgment, order or other proceeding. NLRC pointed out that TCIS’s petition for reli ef was filed beyond
the period provided. The earliest it could have learned of the LA’s judgment was one June 21, 2006 when Dr. Cho received a copy and the latest was during the pre-execution conference.
The Court agrees with the CA that no fraud, accident, mistake, or excusable negligence prevented TCIS from filing an appeal from the decision of the LA, even as the NLRC also noted that the petition also lacked the requisite affidavit showing the fraud, accident, mistake or excusable negligence, and the facts constituting its good and substantial cause of action. TCIS was afforded every opportunity to be heard.
W/N the dismissal of the petition by the CA was proper
NO. It is stressed that the petition for certiorari elevated to the CA is, by nature, an original and
independent action. Therefore, the same is not considered as part of the trial that had resulted in the rendition of the judgment or order complained of. Being an original action, there is a need for the CA to acquire jurisdiction over the person of the parties to the case before it can be resolved on its merits.
In petitions for certiorari filed before the CA, the latter acquires jurisdiction over the person of the respondent upon 1. the service of the order or resolution indicating the CA’s initial action on the petition to the
respondent; or 2. the voluntary submission of the respondent to the CA’s jurisdiction.
Records disclose that the CA served its Resolution dated September 17, 2008 indicating its initial action on the petition before it, directing petitioner to file certified copies of the parties’ position papers, among
others. The said order was sent to Monzon through Atty. Josabeth Alonso, his counsel of record. Case law instructs that when a client is represented by counsel, notice to counsel is notice to client. In the absence of a notice of withdrawal or substitution of counsel, the court will rightly assume that the counsel of record continues to represent his client. In the case at bar, the counsel of respondents denied its representation of Monzon in a Motion and Manifestation dated October 28, 2008. It was only on May 8, 2009 that the counsel of respondents formally filed an Ex Parte Motion to Withdraw as Counsel of Monzon. Hence, prior to such notice of withdrawal as counsel, the CA aptly held in its Resolution that without notice of withdrawal of counsel filed by Monzon or
his counsel, the CA rightly assumed that counsel of record continues to represent Monzon. Considering that the CA had issued a Resolution dated September 17, 2008 directing petitioner to file the necessary attachments, the resolution indicating the initial action taken by the CA, it cannot be denied that respondents were already aware of the certiorari proceedings before the CA and that jurisdiction had been acquired over their person. Thus, the CA had already acquired jurisdiction over both parties. Therefore, the CA erred in dismissing the case with respect to Monzon on the ground that it did not acquire jurisdiction over his person. The CA acquired jurisdiction over the person of Monzon upon the service of the resolution indicating its initial action to his counsel of record. We will not rule upon the other issues raised by petitioner as this Court is not the proper venue to address the same in view of the pending petition for certiorari filed by the petitioner before the CA.
Whether or not Cabatay is entitled to permanent total disability compensation
For the duration of the treatment but in no case to exceed 120 days, the seaman is on as he is totally unable to work. If the 120 days initial period is exceeded and no such declaration is made because the seafarer requires further medical attention, then the temporary total disability period may be extended up to a maximum of 240 days, s The seaman may of course also be declared
fit to work at any time such declaration is justified by medical condition.
It is established that Cabatay went through an intensive treatment, including special medical procedures and therapy sessions, under the care and management of Dr. Tay for six months or for 180 days within the 240-day extended period allowed under the rules implementing the employees compensation law. Since Dr. Tay had timely and duly made a disability assessment for Cabatay, the CA erred in ruling that he is entitled to permanent total disability benefits because he had lost his employment/profession. Neither can Cabatay's submission that he had lost his profession in contemplation of the TCC-FA prevail over Dr. Tay's assessment, not only because he did not dispute the assessment, but also because he did not go through the procedure under the agreement on how a disability is determined, permanent total or otherwise. Moreover, a seafarer cannot claim full disability benefits on his mere say-so in complete disregard of the POEA-SEC and the CBA, which are, to reiterate, the law between the parties and which they are duty bound to observe. And so it must be in Cabatay's case, especially when he refused the petitioners' offer that his medical condition be referred to a mutually appointed doctor under the TCC-FA, to determine whether, despite Dr. Tay's combined 36% disability assessment under the agreement, he is permanently unfit for further sea service.
Whether or not an employer-employee relationship exists between Manila Memorial and
respondents for the latter to be entitled to their claim for wages and other benefits.
Labor-only contracting exists when the contractor or subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal and any of the following elements are present:
1) The contractor or subcontractor does not have substantial capital or investment which relates to the job, work or service to be performed and the employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of the principal; or 2) The contractor does not exercise the right to control the performance of the work of the contractual employee.
A closer look at the Contract of Service reveals that Ward Trading does not have substantial capital or investment in the form of tools, equipment, machinery, work premises and other materials since it is Manila Memorial which owns the equipment used in the performance of work needed for interment and exhumation services.
Further, the records show that Manila Memorial and Enrique B. Lagdameo admitted that respondents performed various interment services at its Sucat, Parañaque branch which were directly related to Manila Memorial’s business of developing, selling and maintaining memorial parks and interment functions. Manila
Memorial even retained the right to control the performance of the work of the employees concerned.
The NLRC also found that Ward Trading’s business documents fell short of sound business practices. For
failing to register as a contractor, a presumption arises that one is engaged in labor-only contracting unless the contractor overcomes the burden of proving that it has substantial capital, investment, tools and the like.
: Whether or not the decision was contrary to
Contrary to PAL's erroneous argument, however, it is liable, not because it is being made a guarantor of the debts of PESALA's members, but because of i ts failure to comply with the RTC's directives. Indeed the amount of P44,488,716.41 has not yet been deducted from the salaries of the PESALA members and, precisely, the reason why such amount has not been deducted is because PAL contravened the RTC's TRO and WPI. PAL is therefore liable, not because it is being made a guarantor of the debts of PESALA's members, but because its own actions brought forth the loss in the case at bar.
Whether or not the petitioner shall be liable for the disability benefits vis-a-vis the disease was work-related, the under the CBA.
The SC reversed the decision of the CA and ruled in favor of the Petitioner. Accordingly, entitlement of seamen on overseas work to disability benefits is a matter governed, not only by medical findings, but by law and by contract.
The material statutory provisions are Articles 191 to 193 under Chapter VI (Disability Benefits) of the Labor Code, in relation with Rule X of the Rules and Regulations Implementing Book IV of the Labor Code.
By contract, the POEA-SEC, as provided under Department Order No. 4, series of 2000 of the Department of Labor and Employment, and the parties' CBA bind the seaman and his employer to each other.
Section 20 (B) of the 2000 POEA-SEC, two elements must concur:
(1) the injury or illness must be work-related; and (2) the work-related injury or illness must have existed during the term of the seafarer's employment contract.
Pre-existence of an illness does not irrevocably bar compensability because disability laws still grant the same provided seafarer's working conditions bear causal connection with his illness.
The petitioner was employed by respondent as Chief Cook which constantly exposes him to heat while preparing the food for the entire crew all throughout the day while he was under employ. The steady and prolonged exposure to heat naturally causes exhaustion which could unduly burden his heart and interfere with the normal functioning of his cardio-vascular system. His illness was aggravated by his work thus it is compensable.
