SUBIC DRYDOCK CORP., PETITIONER, VS. GERONIMO MARIANO, HON. LABOR ARBITER LEANDRO JOSE, AND NATIONAL LABOR RELATIONS COMMISSION (NLRC), RESPONDENTS.
GALAPATE-LAGUILLES, J:
a.) Resolution[2] dated December 19, 2012 dismissing petitioner’s appeal for lack of merit; and
b.) Resolution[3] dated March 20, 2013 denying petitioner’s Motion for Reconsideration of said adverse judgment.
The Facts:
On June 2, 2008, private respondent Geronimo S. Mariano, Jr. (private respondent) was hired as carpenter/shipbuilder/garbage disposal officer of petitioner Subic Drydock Corporation (petitioner).[4] Petitioner at the time was engaged in the business of ship repair.[5] On February 3, 2012 private respondent was denied entry to work as his fingerprints were no longer recognized by petitioner’s biometric machine.[6] As per inquiry, petitioner’s Human Resources Officer Ms. Anna Gregorio informed private respondent of his termination due to alleged “end of contract”.[7] Private respondent begged for reconsideration but to no avail.
Aggrieved, private respondent filed a Complaint[8] for illegal dismissal claiming that his regular employment was terminated without cause. He prayed, among others, for reinstatement with full backwages.
Petitioner opposed[9] the Complaint contending that private respondent was hired as a carpenter in a “project-to-project” basis from the onset of his employment. Petitioner further averred that private respondent’s project employments were all covered by separate Appointment Papers[10] and Personnel Action Notices[11]. It points out that private respondent’s last engagement was for the rehabilitation of Bldg. 15 which started from November 7, 2011 and ended on February 2, 2012. For this reason, petitioner argued, private respondent was not dismissed from his work as his employment contract merely expired on February 2, 2012 as shown by his Appointment Paper[12] dated November 7, 2011, Letter[13] dated February 2, 2012, and Employment Establishment Report[14] it (petitioner) submitted to the DOLE.
On July 30, 2012, Labor Arbiter Leandro M. Jose (LA Jose) ruled[15] in favor of private respondent stating, in part, as follows:
“As established by prevailing jurisprudence, either one or more of the following circumstances, among others, may be considered as indicator/s than an employee is a project one:
- The duration of the specific/identified undertaking for which the worker is engaged is reasonably determinable.
- Such duration, as well as the specific work/service to be performed, is defined in an employment agreement and is made clear to the employee at the time of his hiring.
- The work/service performed by the employee is in connection with the particular project or undertaking for which he is engaged.
- The employee, while not employed and awaiting engagement, is free to offer his services to any other employer.
- The termination of his employment in the particular project/undertaking is reported to the Regional Office of DOLE having jurisdiction over the workplace, within 30 days following the date of his separation from work, using the prescribed form on employee’s terminations or dismissals or suspensions.
- An undertaking in the employment contract by the employer to pay completion bonus to the project employee as practiced by most construction companies. (section 2.2, Department Order No. 19, Series of 1993)
Accordingly, instead of the notice of termination to the affected employees upon completion of the project or any phase thereof,, (sic) the law merely required that the employer should render a report to the DOLE on the termination of their employment. (Cioco vs. C.E. Construction Corp., G.R. No. 156748, September 8, 2004)
But the termination report should be made after every completion of a project or any phase thereof. The failure of the employer to file termination reports after every completion of a project or any phase thereof with the nearest PEO-DOLE is an indication that the employees are not project employees but regular employees. (Equipment Technical Services vs. CA, G.R. No. 157680, October 8, 2008)
xxx xxx xxx
It appears that respondent’s defense focused solely on the alleged expiration of complainant’s contract and never dwelt on the just cause for the latter’s dismissal. Hence, as far as the issues of illegal dismissal is concerned, we find that respondent’s failed to discharge their onus probandi. Thus, there is illegal dismissal.xxx xxx xxx
WHEREFORE, premises considered, the following findings are made:
- That complainant is a regular employee of respondents.
- That complainant was illegally dismissed even as respondents are held liable therefor.
Consequently, respondent corporation is hereby ordered to reinstate complainant to his former position without loss of seniority rights and other privileges, with full backwages initially computed at this time at P56,923.41.
The reinstatement aspect of this decision is immediately executory even as respondents are hereby enjoined to submit a report of compliance herewith within ten (10) days from receipt hereof.
All other claims are hereby dismissed for lack of merit.”[16]
The above ruling was thereafter affirmed[17] on appeal[18] by public respondent Third (3rd) Division of National Labor Relations Commission (respondent NLRC). Dissatisfied, petitioner filed a Motion for Reconsideration[19] but the same was denied in a Resolution[20] dated March 20, 2013.
Hence, the present recourse[21] faulting the public respondent:
I
WHEN IT DECLARED THAT MARIANO WAS A REGULAR EMPLOYEE;
II.
WHEN IT FAILED TO RECOGNIZE THAT HIRING OF PROJECT EMPLOYEES IS SANCTIONED BY AND PROVIDED FOR IN THE LABOR CODE (sic)III.
WHEN IT DISREGARDED THE SUPREME COURT RULINGS STATING THAT “A PARTICULAR EMPLOYEE IS A PROJECT EMPLOYEE IF HE IS ASSIGNED TO CARRY OUT A SPECIFIC PROJECT OR UNDERTAKING, THE DURATION AND SCOPE OF WHICH WERE SPECIFIED AT THE TIME THE EMPLOYEE WAS ENGAGED FOR THE PROJECT” (sic)IV.
WHEN IT DISREGARDED THE SUPREME COURT RULINGS STATING THAT THE “REPEATED AND SUCCESSIVE REHIRING OF PROJECT EMPLOYEES DO NOT QUALIFY THEM AS REGULAR EMPLOYEES, AS LENGTH OF SERVICE IS NOT THE CONTROLLING DETERMINANT OF THE EMPLOYMENT TENURE OF A PROJECT EMPLOYEE” (sic)V.
WHE IT RENDERED JUDGMENT GIVING MONETARY AWARD TO PRIVATE RESPONDENT (sic)
At the heart of the controversy is whether or not respondent NLRC committed grave abuse of discretion amounting to lack or excess or jurisdiction when it held that: (a) private respondent is a regular employee and not merely hired on a per project basis; and (b) private respondent was illegally dismissed.
The Petition must fail.
Preliminarily, a mere cursory reading of the instant Petition reveals that petitioner raises purely factual issues revolving around the propriety of the Decision rendered by respondent NLRC. Elsewise stated, petitioner is in reality asking Us to revisit the factual findings of respondent NLRC by re-examining the probative value of the evidence on record. As a rule, the Court refrains from reviewing factual assessments of lower courts and agencies exercising adjudicative functions, such as the NLRC[22] because factual findings of administrative or quasi-judicial bodies, which are deemed to have acquired expertise in matters within their respective jurisdictions, are generally accorded not only respect but even finality, and bind the Court when supported by substantial evidence.[23] Rule 133, Section 5 of the Rules of Court defines substantial evidence as “that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.[24]
Further, in certiorari proceedings under Rule 65, judicial review does not go as far as to evaluate the sufficiency of evidence upon which the NLRC based its determinations, the inquiry being limited essentially to whether said tribunal has acted without or in excess of its jurisdiction or with grave abuse of discretion.[25] As ordained in AGG Trucking and/or Alex Ang Gaeid vs. Melanio B. Yuag[26]
“Certiorari is a remedy narrow in its scope and inflexible in character. It is not a general utility tool in the legal workshop. Certiorari will issue only to correct errors of jurisdiction and not to correct errors of judgment. An error of judgment is one which the court may commit in the exercise of its jurisdiction, and which error is reviewable only by an appeal. Error of jurisdiction is one where the act complained of was issued by the court without or in excess of jurisdiction and which error is correctible only by the extraordinary writ of certiorari. As long as the court acts within its jurisdiction, any alleged errors committed in the exercise of its discretion will amount to nothing more than mere errors of judgment, correctible by an appeal if the aggrieved party raised factual and legal issues; or a petition for review under Rule 45 of the Rules of Court if only questions of law are involved.
A cert[iorari] writ may be issued if the court or quasi-judicial body issues an order with grave abuse of discretion amounting to excess or lack of jurisdiction. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Mere abuse of discretion is not enough. Moreover, a party is entitled to a writ of certiorari only if there is no appeal nor any plain, speedy or adequate relief in the ordinary course of law.
The raison d’etre for the rule is that when a court exercises its jurisdiction, an error committed while so engaged does not deprive it of the jurisdiction being exercised when the error was committed. If it did, every error committed by a court would deprive it of its jurisdiction and every erroneous judgment would be a void judgment. In such a situation, the administration of justice would not survive. Hence, where the issue or question involved affects the wisdom or legal soundness of the decision – not the jurisdiction of the court to render said decision – the same is beyond the province of a special civil action for certiorari.”(boldness and underscoring supplied)
Occasionally, however, the Court is constrained to wade into factual matters when there is insufficient or insubstantial evidence on record to support those factual findings; or when too much is concluded, inferred or deduced from the bare or incomplete facts appearing on record.[27] None, however, is extant in this case.
Nevertheless, We address petitioner’s insistence that respondent NLRC gravely abused its discretion when it issued the challenged rulings.
Petitioner disputes the sufficiency of the basis arguing that there is no illegal dismissal to speak of since private respondent is not a regular employee but was one merely hired on a “per project basis” with the terms of employment made known to him at the time of the engagement.[28] Petitioner vigorously insists that private respondent was validly dismissed upon the expiration of the term of his project employment.[29]
Private respondent, on the other hand, maintains that he is a regular employee because he was re-hired every termination of his employment contract and performed work desirable or necessary to petitioner’s regular business.[30]
Petitioner’s arguments fail to convince.
A project employee 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.[31] A project is a job or undertaking which is distinct, separate and identifiable from the usual or regular undertakings of the company.[32] A true project employee should be assigned to a project which begins and ends at determined or determinable times.[33] Although, length of time is not the controlling test for project employment, nevertheless, it is vital in determining if the employee was hired for a specific undertaking or tasked to perform functions vital, necessary and indispensable to the usual business or trade of the employer.[34] The test, therefore, for distinguishing a “project employee” from a “regular employee” is whether or not he has been assigned to carry out a “specific project or undertaking,” with the duration and scope of his engagement specified at the time his service is contracted.[35]
Here, the records of the case amply show that private respondent was re-hired by petitioner several times over[36] supposedly as a “project employee”. This fact, however, is a good indicia that private respondent’s work is necessary and indispensable to petitioner’s regular business. To be sure, ship repair involves carpentry which entails the making or repairing of cabinet, flooring, quarters, ceiling, windows, doors, kitchen and other parts of a vessel.[37] Private respondent’s work as a carpenter therefore is necessary and desirable to petitioner’s business.[38] Also, private respondent’s employment ceased to be coterminous with specific projects due to the demands of petitioner’s business.[39] As elucidated upon in PLDT v. Ylagan[40],once an employee has been: (1) continuously, as opposed to intermittently, re-hired by the same employer for the same tasks or nature of tasks and (2) these tasks are vital, necessary and indispensable to the usual business or trade of the employer, then the employee must be deemed a regular employee.
We also consider the periods of employment imposed in private respondent’s employment contracts with petitioner as subterfuge to defeat the latter’s right to security of tenure. Time and again, it has been held that the practice of imposing a limited period in an employment contract to circumvent the constitutional guarantee on security of tenure should be struck down or disregarded as contrary to public policy or morals.[41] We do not see any plausible reason why this jurisprudential edict be not applied as forcefully as in the herein case.
True, petitioner proffered eleven (11) separate Appointment Papers and two (2) Personnel Action Notices to prove the terms of private respondent’s engagement as an alleged project employee. This, to Us, however, is suspect as it is baffling that only one Employment Establishment Report[42] was submitted to the DOLE. DOLE-Department Order No. 19 (as well as the old Policy Instructions No. 20) requires employers to submit a report of an employee’s termination to the nearest public employment office every time his employment was terminated due to a completion of a project.[43] As correctly pointed out by LA Jose, “termination report should be made after every completion of a project or any phase thereof.”[44] Accordingly, petitioner’s non-submission of said reportorial requirement weighs heavily against the credibility of petitioner’s assertion that the aforesaid Appointment Papers and Personnel Action Notices are supportive of its claim that private respondent worked for it as a project employee.
On this score, We cite with approval the following disquisitions of respondent NRLC:
“The lone establishment employment report failed to establish the status of project employment. If complainant was truly a project employee, there would have been as many reports of termination filed with the DOLE as there were project actually finished. The Labor Arbiter, citing Equipment Technical Services v. Court of Appeals (G.R. No. 157680, October 8, 2008), correctly took note that the failure of the employer to file termination reports after every completion of a project is an indication that the employee is not a project employee.”[45] (boldness and underscoring supplied)
In the same vein, petitioner’s belated submission of the lone Employment Establishment Report long after the alleged expiration of private respondent’s employment contract and after the Complaint had been lodged indubitably created lingering doubts as to the veracity of the entries therein. As aptly ruled by respondent NLRC:
“The much delayed admission of the establishment employment report to the DOLE cannot just be a mere procedural lapse. Complainant was terminated on February 12, 2012 and yet the report of his termination was reported only on June 1, 2012. The copy of the report submitted by respondents in evidence would even indicate that complainant’s name was merely inserted in or added to the list of those workers who were separated much later on May 30, 2012. This brought us to the conclusion that the report of complainant’s termination was just an afterthought, made only after complainant had already filed the instant complaint on April 19, 2012.”[46] (boldness and underscoring supplied)
In illegal dismissal cases, the burden of proof is on the employer to show that the employee was dismissed for a valid and just cause.[47] Thus, petitioner must not only rely on the weakness of private respondent’s evidence, but must stand on the merits of its own defense.[48] It is pristine clear from the evidence on record that petitioner failed to discharge the burden. No iota of evidence, testimonial or documentary, was adduced by petitioner to prove that a just cause existed to warrant private respondent’s dismissal. Lack of just cause in terminating an employee renders his dismissal illegal.[49]
Given that private respondent was illegally dismissed, therefore, he is entitled to the monetary award.
To note also, there was absence of allegations in the Complaint and succeeding pleadings that petitioner’s corporate officer and General Manager Gerald J. Hammod acted in bad faith in effecting private respondent’s dismissal. Bad faith does not connote bad judgment or negligence; it imports a dishonest purpose or some moral obliquity and conscious doing of wrong; it means breach of a known duty through some motive or interest or ill will; it partakes of the nature of fraud.[50] Unless it is shown that the dismissal was actuated with bad faith, We apply the general rule that a corporation has, by law, a personality separate and distinct from that of its owners or from those of the persons composing it.[51] As there was no showing that Hammod, as petitioner’s General Manager, acted in bad faith in terminating private respondent’s services, he cannot be held solidarily liable with petitioner.
Final word. The law looks tenderly on the laborer.[52] Where the evidence may be reasonably interpreted in two divergent ways, one prejudicial and the other favorable to him, the balance must be tilted in his favor consistent with the principle of social justice.[53]
WHEREFORE, premises considered, the instant Petition is DISMISSED. The application for the issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction is consequently DENIED. The Resolution dated December 19, 2012 in NLRC LAC No. 10-002840-12(8)/NLRC CN RAB-III-04-18772-12 affirming the Labor Arbiter’s Decision is AFFIRMED with MODIFICATION, in that petitioner’s corporate officer is absolved from personal liability.
SO ORDERED.
Punzalan Castillo, M.P., (Chairperson) and [*]Peralta, JR., E. B., JJ., concur.
[*] Vice Justice Amy C. Lazaro-Javier per Office Order No. 150-14-RSF dated April 21, 2014
[1] Dated June 3, 2013; Rollo, pp. 3-25.
[2] Ibid, pp. 27-34.
[3] Id., pp. 36-37.
[4] See Complainant’s Position Paper dated June 1, 2012; Id., p. 73
[5] Id. p. 41.
[6] Id.
[7] Id.
[8] Id., p. 38.
[9] Dated June 1, 2012; Rollo, pp. 39-52.
[10] Ibid, pp. 54-64.
[11] Id., p. 53.
[12] Id., p. 64.
[13] Id., p. 65.
[14] Id., pp. 66-67.
[15] Id., pp. 103-111.
[16] Rollo, pp. 108-111.
[17] Supra at note 2.
[18] Rollo, pp. 112-131.
[19] Dated February 7, 2013; Ibid, pp. 138-148.
[20] Supra at note 3.
[21] Rollo, pp. 7-8.
[22] Aliviado, etc., vs. Procter & Gamble Phils., Inc. G.R. No. 160506, June 6, 2011.
[23] Leyte Geothermal Power Progressive Employees Union- ALU-TUCP vs. PNOC- Energy Development Corporation, G.R. No. 170351, March 30, 2011.
[24] Ibid.
[25] Aquino v. Court of Appeals, G.R. No. 149404, September 15, 2006.
[26] G.R. No. 195033, October 12, 2011; citing San Fernando Rural Bank, Inc. v. Pampanga Omnibus Development Corporation and Dominic G. Aquino, G.R. No. 168088, April 3, 2007.
[27] Supra at note 22.
[28] Rollo, p. 13.
[29] Ibid.
[30] Comment dated August 16, 2013; Id., p. 161.
[31] Bienvenido D. Goma v. Pamplona Plantation Incorporated, G.R. No. 160905, July 4, 2008.
[32] Ibid.
[33] Pedy Caseres and Anito Pael v. Universal Robina Sugar Milling Corporation (URSUMCO) and/or Resident Manager Rene Cabate, G.R. No. 159343, September 28, 2007.
[34] D.M. Consunji, Inc. and/or David M. Consunji v. Estelito L. Jamin, G.R. No. 192514, April 18, 2012.
[35] William Uy Construction Corp. and/or Teresita Uy and William Uy v. Jorge R. Trinidad, G.R. No. 183250, March 10, 2010.
[36] Thirteen (13); Rollo, p. 114.
[37] See Hermonias L. Liganza v. RBL Shipyard Corporation and Engr. Ben Lim, Jr., G.R. Noi. 159862, October 17, 2006.
[38] Ibid.
[39] See Supra at note 34.
[40] G.R. No. 155645, November 24, 2006.
[41] Glory Philippines, Inc. v. Buenaventura B. Vergara and Roselyn T. Tumasis, G.R. No. 176627, August 24, 2007.
[42] Supra at note 14.
[43] Philippine Long Distance Telephone Company, Inc. v. Mayflor T. Ylagan, G.R. No. 155645, November 24, 2006.
[44] Rollo, p. 109.
[45] Rollo, p. 32.
[46] Rollo, p. 33.
[47] Padilla Machine Shop, Rodolfo Padilla and Leonardo Padilla v. Rufino A. Javilgas, G.R. No. 175960, February 19, 2008.
[48] See AFI International Trading Corporation (Zamboanga Buying Station) and Celedonio Raymundo, Jr. v. Dennis G. Lorenzo and Cecilio S. Sorsan, G.R. No. 173256, October 9, 2007.
[49] Ibid.
[50] Cf. Elcee Farms v. NLRC, G.R. No. 126428, January 25, 2007, 512 SCRA 602, 616-617.
[51] See Ever Electrical Manufacturing, Inc., (EEMI) and Vicente Go v. Samahang Manggagawa ng Ever Electrical/Namawu Local 224 represented by Felimon Panganiban, G.R. No. 194795, Jannuary 13, 2012.
[52] HFS Philippines, Inc. v. Ronaldo R. Pilar, G.R. No. 168716, April 16, 2009.
[53] Ibid.