G.R. No. 202466. June 23, 2021
EDUARDO G. JOVERO, PETITIONER, VS. ROGELIO CERIO, JESUS ALBURO, JR., GIL CLAVECILLAS, DOMINGO ZEPEDA, RAUL CLERIGO, DOMINGO CANTES, MARCELINO COPINO, CEAZAR CAÑEZO, LEVY LEGAZPI…
HERNANDO, J.:
of the Court of Appeals (CA) in CA-G.R. SP No. 103349, which reversed
and set aside the February 18, 2008 Decision[3 and September 24, 2002
Resolution[4] of the National
Labor Relations Commission (NLRC) finding that respondents were not
illegally dismissed. In a September 26, 2011 Resolution,[5] the CA did not reconsider its earlier Decision.
Antecedent Facts:
Respondents Rogelio Ceria, Jesus Alburo, Jr., Gil Clavecillas,
Domingo Zepeda, Raul Clerigo, Domingo Cantes, Marcelino Copino, Ceazar
Cañezo, Levy Legazpi, Eustaquio Rangasa, Elmar Convencido, and Achiles
Dycoco (respondents) were hired on various dates by Sigma Construction
and Supply (Sigma), an independent contractor owned by Eduardo G. Jovero
(Jovero). As cement cutters, respondents were assigned to work at the
drilling site of Philippine Geothermal Inc. (PGI), beginning in April
1990. However, PGI preterminated one of its contracts with Sigma on
April 1, 1993, which was initially supposed to end on October 31, 1993.
Due to such termination, the project manager of Sigma issued a notice[6] to all cement cutters, informing them that the contract with PGI will be effective only until April 30, 1993.
Sometime in August 1993, respondents filed a complaint[7]
for illegal dismissal, underpayment of wages and non-payment oflabor
standard benefits against Sigma and PGI. Their case was later on
consolidated with the cases of Job Capis, et al. and Crispino Miguel, et. al. Thereafter, Executive Labor Arbiter Vito C. Bote (Executive Labor Arbiter Bote) rendered a March 30, 1994 Decision[8]
dismissing the complaints for lack of merit. However, Jovero was
ordered to pay each of the respondents P1,000.00 as indemnity. The
complainants in the Capis, et. al. and Miguel et. al. cases filed an appeal to the Commission on April 27, 1994, while the complainants in the Ceria et. al. case appealed on May 4, 1994. Hence, all records of the three (3) cases were forwarded to the Commission.
On March 31, 1995, the Third Division of the Commission rendered a Decision[9]
remanding the cases to the Arbitration Branch of origin for the
determination of the legality of complainants’ dismissal and their
nature of employment. It also pointed out in its dispositive portion
that only Capis et. al. and Miguel et. al. filed an
appeal. After remand of the records of the said cases to the branch of
origin, Executive Labor Arbiter Bote rendered a Decision and restated
his earlier findings and conclusion in his March 1994 Decision. On the
other hand, it was only in 1996 when the Cerio et. al. case was
remanded to the then new Executive Labor Arbiter Gelacio L. Rivera Jr.
(Executive Labor Arbiter Rivera). He called the parties to a hearing,
but they still failed to reach an amicable settlement.
Jovero alleged that Sigma is an independent contractor that hired
respondents as project employees to work on the former’s projects with
PGI.
Necessarily, when PGI preterminated its latest contract with Sigma,
the latter was forced to terminate the employment of respondents seeing
that the need for their services was dependent on its contract with PGI.
Simply put, respondents’ services were coterminous with Sigma’s
projects with PGI. Therefore, they were hired and rehired in accordance
with the duration of Sigma’s contracts with PGI. Consequently, Jovero
averred that it would be unjust to require Sigma to retain respondents
in its employ in the absence of projects with PGI. Nevertheless, he
claimed that the respondents were paid wages and benefits in accordance
with the law.
On the other hand, respondents argued that they were not just
project employees because they were continuously hired and assigned to
different PGI projects from the beginning of their employment in 1990
until their recent termination in 1993. In fact, respondents were even
transferred to other projects prior to the completion of a previously
assigned project. They also claimed that they were not limited to
performing work as cement cutters, but they also cleaned canals and
pipes, fixed tools, and other related work at PGI.
Ruling of the Labor Arbiter:
On July 31, 2011, Executive Labor Arbiter Rivera rendered a Decision,[10] the dispositive portion of which states:
WHEREFORE, judgment is hereby rendered in favor of
complainants ordering respondent Sigma Construction and Supply and its
owner Sigrid Jovero to pay:
1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. within ten (10) days from receipt hereof though this Arbitration Branch.
SO ORDERED.[11]
The arbiter held that herein respondents were regular employees of
Sigma considering that they: (1) were continuously hired and employed
for more than a year; (2) were transferred to various projects even
prior to the completion of a previously assigned project; and (3)
performed tasks not limited to being cement cutters. Moreover,
petitioner did not submit any evidence to controvert these allegations.
Petitioner should have submitted employment records such as appointment
papers or contracts of employment for a specific project to show that
respondents were only hired for such specific purpose or phase of a
project. Furthermore, it held that petitioner should have adduced in
evidence the termination report submitted to the Department of Labor and
Employment (DOLE) every time its employees’ services were terminated
upon the completion or termination of the project they were assigned to.
As regular employees, the Labor Arbiter found that they were illegally
dismissed due to petitioner’s failure to abide by the notice and just
cause requirements under the Labor Code. As such, they were entitled to
separation pay instead of reinstatement, as well as backwages. Anent the
issue on labor standard benefits, the same was denied for respondents’
failure to substantiate its claim.
Ruling of the National Labor Relations Commission:
In its September 21, 2001 Memorandum on Appeal[12]
to the NLRC, petitioner averred that the Labor Arbiter abused his
discretion in finding that respondents were regular employees of Sigma
and that they were illegally dismissed. He attached Sigma’s contracts[13]
with PGI and reiterated that the hiring and rehiring of respondents
were based on the duration of the contracts (1) from May 1, 1990
-December 31, 1990; (2) August 1, 1991 – October 31, 1991; (3) May 1,
1992- April 30, 1993; and (4) January 1, 1993 -October 31, 1993. As
project employees, he posited that their employment may be terminated
upon completion or expiration of the project for which they have been
engaged in. Accordingly, PGI’s pretermination of the contract with Sigma
entailed respondents’ termination as well. He also added that the tasks
performed by respondents did not pertain to different kinds of work. As
shown in PGI’s contract with Sigma, cleaning canals and pipes and
fixing tools are under the latter’s Scope of Work.[14]
In their Opposition to Memorandum on Appeal,[15]
respondents averred that the arbiter’s Decision had already become
final and executory considering that the ten-day period within which to
appeal had already lapsed before petitioner filed his appeal.
In its September 24, 2002 Resolution,[16]
the labor tribunal granted the appeal and dismissed the cases for lack
of merit. However, it ordered the payment of P 1,000.00 to each
complainant for petitioner’s failure to submit a termination report to
the DOLE. The dispositive portion of the Resolution states:
WHEREFORE, the appeal of respondent Sigma Construction and Supply is hereby GRANTED. Accordingly, the decision of the Executive Labor Arbiter dated July 31,2001 is hereby VACATED and SET ASIDE and another judgment entered DISMISSING
the above-entitled cases for lack of merit. However, Sigma Construction
and Supply is hereby ordered to pay each of the complainants the sum of
P 1,000.00 by way of penalty imposed on it for failure to observe the
requirements of the Labor Code.SO ORDERED.[17]
The NLRC noted that Executive Labor Arbiter Bote made a general
finding that upon expiration of a Service Contract with PGI, the
employment of workers is deemed terminated since there was no evidence
showing that they belong to a work pool from which the petitioner could
utilize them in another project. On the other hand, Executive Labor
Arbiter Rivera found that in the absence of a specific Service Contract
with specific duration, the employment of respondents is deemed to be
continuous and regular.
However, the NLRC noted that in his Memorandum of Appeal, petitioner
has attached these service contracts. Thus, in the interest of
substantial justice and prevailing jurisprudence on the matter, it
admitted the evidence, though belatedly submitted. Moreover, it pointed
out that respondents failed to dispute the genuineness and authenticity
of such contracts, despite having the opportunity to do so. Therefore,
the contracts indubitably proved that respondents’ employment is
coterminous with the completion or termination of each project.
Ruling of the Court of Appeals:
Aggrieved, respondents filed a Petition for Certiorari[18]
before the CA alleging grave abuse of discretion amounting to lack or
in excess of jurisdiction on the part of the labor tribunal when it gave
due course to Jovero’s appeal despite filing it beyond the reglementary
period, and holding that respondents were project employees who were
legally terminated.
In his Comment[19] to respondents’ Petition for Certiorari,
petitioner averred that the NLRC aptly decided the case on the merits
rather than mere technicality, in the higher interest of substantial
justice. He also maintained that respondents were project employees.
Thus, the award of backwages and separation pay was without basis.
In compliance with its July 3, 2009 Resolution,[20] the respective parties filed their respective memoranda[21] with the CA.
On December 22, 2010, the CA rendered its assailed Decision[22] granting respondents’ Petition for Certiorari
and setting aside the September 24, 2002 Resolution and February 18,
2008 Decision of the NLRC. The dispositive portion of the Decision
states:
WHEREFORE, the Petition is GRANTED. The assailed Resolution and Decision of NLRC, promulgated on September 24, 2002 and February 18, 2008, respectively, are REVERSED and SET ASIDE. The Decision, dated July 31, 2001 by Executive Labor Arbiter Gelacio L. Rivera, Jr., is hereby ordered REINSTATED.
SO ORDERED.[23]
The CA found that the petitioner’s appeal to the NLRC was belatedly filed. It gave credence to the Bailiff Proof of Service[24] and Notice of Judgment/Final Order[25]
attached to respondents’ Opposition to Memorandum on Appeal, showing
that petitioner’s counsel, through his employee, received the Decision
on August 21, 2001 and not on September 11, 2001 as stated in
petitioner’s Memorandum on Appeal. Thus, the last day to file the appeal
fell on August 31, 2001. Additionally, even if the CA brushes aside
this procedural lapse, it concluded that respondents were regular
employees and concurred with Executive Labor Arbiter Rivera’s findings,
to wit:
As complainant’s assertion that they continuously worked
with respondent assigned at PGI in its different projects and were in
fact transferred to other projects even before its completion or were
also assigned to work other than their original assignment were not
disproved by respondent by way of evidence, complainants, clearly are
not project employees by regular employees of respondent.[26]
Petitioner filed a Motion for Reconsideration[27] but the CA denied the same in its September 26, 2011 Resolution.[28] Hence, the instant Petition.
Issues
Petitioner raised the following issues: (1) whether the appeal
belatedly filed by the petitioner before the NLRC can be given due
course; and (2) whether respondents were regular employees and illegally
dismissed by the petitioner.
Our Ruling
We find no merit in the petition.
To begin with, it is clear that the present petition was filed out of
time. There is no dispute that petitioner received the copy of the CA
Resolution dated September 26, 2011 on October 5, 2011. The period
within which to file a petition for review under Rule 45 is fifteen (15)
days from notice of the judgment or final order or resolution appealed
from. Thus, petitioner had until October 20, 2011 to file his petition.
However, records show that the present petition was filed only on July
19, 2012, or about nine (9) months after the lapse of the reglementary
period. Petitioner claims that he was working abroad as an OFW and
returned only on July 6, 2012. During the interim, petitioner was not
able to communicate to his counsel his intention to file a Petition for
Review on Certiorari. This Court finds petitioner’s justification
unsubstantiated, as no travel records were even provided by petitioner
to support his claim. Notwithstanding the technical infirmities, this
Court deems it judicious to take cognizance of the case to put the
issues to rest.[29]
The question on whether respondents are project employees is a
question of fact. As general rule, a petition for review under Rule 45
should only raise questions of law, as this Court is not a trier of
facts.[30] However, this Court
may exercise its equity jurisdiction when the findings of facts and
conclusions of the Labor Arbiter, NLRC, and CA are conflicting with each
other.[31] In the present
case, the findings of the Labor Arbiter and CA on one hand, and the NLRC
on the other, differ from each other. Consequently, the conflicting
verdicts of the lower tribunals constrain this Court to invoke its
equity jurisdiction and review the records of the case to arrive at its
own conclusion.[32]
According to the CA, the NLRC gravely abused its discretion when it
gave due course to Jovero’s appeal, which was filed twenty-one (21) days
after the lapse of the reglementary period for filing an appeal.
Moreover, the circumstances did not warrant the liberal application of
rules since Jovero did not provide any explanation which would justify
his belated filing.
We agree.
When a party is represented by counsel of record, service of orders and notices must be made upon such counsel.[33] As a well-settled rule, such notice to counsel is tantamount to notice to the client.[34]
Similarly, the 2011 NLRC Rules of Procedure (NLRC Rules) governing the
issuance and service of notices and resolutions provides:
Section 4. Service of Notices, Resolutions, Orders and Decisions.-
a) Notices and copies of resolutions or orders, shall be served
personally upon the parties by the bailiff or duly authorized public
officer within three (3) days from his/her receipt thereof or by
registered mail or by private courier;b) In case of decisions and final awards, copies thereof shall be
served on both parties and their counsel or representative by registered
mail or by private courier; Provided that, in cases where a party to a
case or his/her counsel on record personally seeks service of the
decision upon inquiry thereon, service to said party shall be deemed
effected as herein provided. Where parties are numerous, service shall
be made on counsel and upon such number of complainants, as may be
practicable and shall be considered substantial compliance with Article
224 (a) of the Labor Code, as amended. For purposes of appeal, the
period shall be counted from receipt of such decisions, resolutions, or
orders by the counsel or representative of record.c) The bailiff or officer serving the notice, order, or resolution
shall submit his/her return within two (2) days from date of service
thereof, stating legibly in his/her return his/her name, the names of
the persons served and the date of receipt, which return shall be
immediately attached and shall form part of the records of the case.
In case of service by registered mail or by private courier, the name
of the addressee and the date of receipt of the notice, order or
resolution shall be written in the return card or in the proof of
service issued by the private courier. If no service was effected, the
reason thereof shall be so stated.[35] (Emphasis ours)
Consideringthat the Bailiff Proof of Service and Notice of
Judgment/Final Order show that Jovero’s counsel received Labor Arbiter
Rivera’s Decision on August 21, 2001, and that the reglementary period
indubitably lapsed before he filed his appeal, the CA correctly held
that the NLRC gravely abused its discretion when it took cognizance of
and even granted Jovero’s appeal. Lest we forget, perfection of an
appeal in the manner and within the period prescribed by law is not a
mere technicality, but jurisdictional.[36] Hence, failure to perfect an appeal as required by the Rules renders the judgment final and executory.[37] The case of Paramount Vinyl Products Corporation v. National Labor Relations Commission[38] is instructive:
Well-settled rule that the perfection of an appeal within
the statutory or reglementary period is not only mandatory, but
jurisdictional. Failure to interpose a timely appeal (or a motion for
reconsideration) renders the assailed decision, order or award final and
executory that deprives the appellate body of any jurisdiction to alter
the final judgment. x x x The rule is ‘applicable indiscriminately to
one and all since the rule is grounded on fundamental consideration of
public policy and sound practice that at the risk of occasional error,
the judgment of courts and award of quasi-judicial agencies must become
final at some definite date fixed by law.’[39]
Thus, in Mai Philippines Inc., v. National Labor Relations Commission,[40] We held:
So, too, it was clearly wrong, and in grave abuse of
discretion, for the Commission to fail or refuse to take account of the
fact-clearly shown by the record and to which its attention had
repeatedly been drawn -that the appeal taken by Nolasco from the
decision of Arbiter Lasquite of August 2, 1984, dismissing his
complaint, was late, because perfected on September 24, 1984, twelve
(12) days after service on him of notice of the decision on September
12, 1984, the reglementary period for appeal being fixed by the Labor
Code at ten (10) days. No acceptable reason has been advanced by
Nolasco, and none appears upon the record, to excuse his tardiness in
the taking of the appeal. MAI’s opposition to the appeal should have
been sustained, and the NLRC should never have taken cognizance of the
appeal. In doing so, and in resolving the appeal adversely to MAI, it
acted so whimsically, capriciously and arbitrarily as to call for this
Court’s correcting hand.[41] (Citations omitted)
While this Court is mindful that procedural lapses have been
previously disregarded and appeals filed beyond the reglementary period
have been given due course, it necessitates strong and compelling
reasons to do so.[42] In the
present case, the CA correctly held that the absence of such exceptional
circumstances to justify the belated filing of an appeal with the NLRC
rendered Labor Arbiter Rivera’s Decision final and executory.
Nevertheless, even setting aside the issue on filing an appeal
beyond the reglementary period, this Court concurs with the findings and
conclusions of the Labor Arbiter and the appellate court that
respondents were regular employees of Sigma.
Petitioner supports his argument that respondents are only project
employees by attaching Sigma’s Service contracts with PGI in its
Memorandum of Appeal filed with the NLRC. Petitioner cites the case of Cartagenas v. Romago Electric Co., Inc.[43] (Cartegenas)
as a similar factual milieu, which held that the employees were not
permanent or regular employees since the duration of their employment
was coterminous with the projects they were assigned to. However,
Cartagenas is strikingly different from the present case.
In Cartagenas, the employer was able to present documentary
exhibits which showed that the employees were assigned to various
projects over a period of time. The documents also proved that they were
temporarily laid off when the project was suspended, and subsequently
rehired once it resumed. In that case, they were able to present the
project employment contracts between the employer and its employees.
Contrastingly, Jovero only presented Sigma’s Service Contracts with PGL
Nowhere in the contracts did it show that respondents were parties to
such contract. More importantly, it did not prove that respondents were
hired for the projects with PGI.
The case of Olongapo Maintenance Services, Inc. v. Chantengco[44] is more applicable:
The principal test in determining whether an employee is a
project employee is whether he/she is assigned to carry out a “specific
project or undertaking,” the duration and scope of which are specified
at the time the employee is engaged in the project, or where the work or
service to be performed is seasonal in nature and the employment is for
the duration of the season. A true project employee should be assigned
to a project which begins and ends at determined or determinable times,
and be informed thereof at the time of hiring.In the instant case, the record is bereft of proof that the respondents’
engagement as project employees has been predetermined, as required by
law. We agree with the Court of Appeals that OMSI did not provide
convincing evidence that respondents were informed that they were to be
assigned to a “specific project or undertaking” when OMSI hired them.
Notably, the employment contracts for the specific project signed by the
respondents were never presented. All that OMSI submitted in the
proceedings a quo are the service contracts between OMSI and the MIAA.
Clearly, OMSI utterly failed to establish by substantial evidence that,
indeed, respondents were project employees and their employment was
coterminous with the MIAA contract.[45] (Citations omitted; Emphasis ours)
Clearly, the presentation of service contracts between the employer
and their client (even if it shows the duration of the project), in lieu
of the employees’ individual employment contracts, does not establish
that the latter are project employees. There was no other substantial
evidence offered to prove that respondents were informed at the time of
their hiring, that they were project employees. Moreover, petitioner’s
failure to file termination reports at the end of each project was an
indication that respondents were regular employees.[46]
In view of all the foregoing, petitioner failed to prove through
substantial evidence that respondents are project employees. It is
evident that respondents were illegally dismissed due to petitioner’s
failure to comply with the substantive and procedural due process tenets
under the Labor Code.
WHEREFORE, the instant petition is hereby DENIED. The December 22, 2010 Decision and September 26, 2011 Resolution of the Court of Appeals in CA-G.R. SP No. 103349 are AFFIRMED. The case is hereby ordered REMANDED to the labor arbiter for the computation of the amounts due each respondent.
SO ORDERED.
Inting, Delos Santos and Lopez, JJ., concur.
Leonen, J., on wellness leave.
[1] Rollo, pp. 4-28.
[2] Id. at 30-44; penned by
Associate Justice Ruben C. Ayson and concurred in by Associate Justices
Amelita G. Tolentino and Normandie B. Pizarro.
[3] CA rollo, pp. 51-57; penned by Commissioner Perlita B. Velasco and concurred in by Commissioners Gerardo C. Nograles and Romeo L. Go.
[4] Id. at 58-67; penned by
Commissioner Alberto R. Quimpo and concurred in by Commissioners Roy v.
Señeres and Vicente S.E. Veloso.
[5] Id. at 50-51.
[6] Rollo, p. 14.
[7] Id. at 86-97.
[8] CA rollo, pp. 68-85.
[9] Id. at 131-142.
[10] Id. at 157-169.
[11] Id. at 167.
[12] Id. at 172-188.
[13] Id. at 209-247.
[14] Id. at 175.
[15] Id. at 191-193.
[16] Id. at 58-67.
[17] Id. at 67.
[18] Id. at 14-50.
[19] Id. at 334-353.
[20] Id. at 364.
[21] Id. at 376-419; 486-510.
[22] Supra note 2.
[23] Rollo, p. 44.
[24] CA rollo, p. 170.
[25] Id. at 193.
[26] Rollo, p. 43.
[27] Id. at 45.
[28] Id. at 50-51.
[29] Metropolitan Manila Development Authority v. Jancom Environmental Corporation, 425 Phil. 961, 973 (2002).
[30] Tiu v. Pasaol, 450 Phil. 370, 379 (2003) citing Aklan Electric Cooperative, Inc. v. National Labor Relations Commission, 380 Phil. 225 (2000).
[31] PCL Shipping Philippines, Inc. v. National Labor Relations Commission, 540 Phil. 65, 74-75 (2006) citing Lopez Sugar v. Franco, 497 Phil. 806 (2005).
[32] Jao v. BCC Products Inc., 686 Phil. 36, 42 (2012).
[33] Spouses Soriano v. Soriano, 558 Phil. 627,641-642 (2007).
[34] Zoleta v. Secretary of Labor, 248 Phil. 777, 782 (1988).
[35] 2011 NLRC Rules of Procedure, Rule III, Sec. 4.
[36] Narag v. National Labor Relations Commission, 239 Phil. 194, 201-202 (1987). Citation omitted.
[37] Id.
[38] G.R. No. 81200, October 17, 1990, 190 SCRA 525 (2009).
[39] Id.at 533-534.
[40] 235 Phil. 186 (1987).
[41] Id. at 197.
[42] Angat v. Republic, 609 Phil. 146, 165 (2009).
[43] 258 Phil. 445 (1989).
[44] 552 Phil. 338 (2007).
[45] Id. at 336-337.
[46] Id. at 336 citing Philippine Long Distance Telephone Company v. Ylagan, 537 Phil. 840 (2006).