G & S TRANSPORT CORPORATION, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION, 7TH DIVISION, CEBU CITY, ALEXANDER D. ROSALES, JUANITO S. MAGSILONG, JR. AND ALFONSO E. ARROGAN…
INGLES, G. T., J.:
Before this court is a petition for certiorari filed under Rule 65 of the 1997 Revised Rules on Civil Procedure, as amended seeking to annul and set aside the Decision[1] dated June 29, 2012, of the National Labor Relations Commission, Seventh Division, Cebu City, in NLRC Case No. VAC-02-000085-2012, which reversed and set aside the Decision[2] dated November 29, 2011, of the NLRC, Regional Arbitration Board Branch VII, Cebu City in RAB Case No. VII-05-0852-11.
Also assailed is the Resolution[3] dated September 24, 2012 which denied petitioner’s Motion for reconsideration.
THE FACTS:
Petitioner G & S is a corporation engaged in rent-a-car business represented by its Cebu manager, Cherry Bennish.
Respondents Alexander Rosales, Juanito Magsoling, Jr., and Alfonso Arrogante worked as drivers for petitioner G & S Transport Corporation. They have worked for petitioner corporation for several years already – Alexander since February 23, 2003, Juanito since July 25, 2007 and Alfonso since May, 2003. Their tour of duty had been divided into three groups as follows: 1) first shift- 6:00 AM to 3:00 PM; 2) second shift- 2:00 PM to 11:00 PM and 3) third shift- 10:00 PM to 7:00 AM, with each shift bearing nine (9) hours of work. Respondents asked management if they could use one hour for break time but Cherry Bennish told them she could not change the policy of the company and that she had no authority to change the number of working hours. She likewise told them that they could still take a break when there is no customer for a certain period of time. In turn, respondents requested that if the nine-hour work policy could not be changed, then, they could at least be given overtime pay for the excess of eight hours of work. Petitioner, however, insists that it is not liable for the one hour excess of work everyday.
Respondents filed a Complaint before the Department of Labor and Employment (DOLE).
On June 9, 2010, Labor Inspector Engr. Vicente Abordo inspected the branch office of petitioner in Lapu-Lapu City and found that: “Payrolls were not available during inspection. However, per random interview and the Complaint/Affidavit of complainants, noted was a violation on overtime (non payment), affecting 14 workers in the total amount of P 489,376.10 (see attached computation).”
On September 8, 2010, petitioner manifested to contest the findings during the first summary investigation. An oral objection was reiterated by petitioner during the second summary investigation. Before the DOLE could make a final resolution on the controversy, the Regional Director endorsed the case to the Regional Arbitration Branch No. VII of the National Labor Relations Commission (NLRC). Thus, respondents filed their respective complaints for unfair labor practice, overtime pay and regularization before said office docketed as NLRC RAB-VII Case4 No. 05-0852-11.
Subsequently, the parties filed their respective position papers.
In its position paper, petitioner contended that respondents have no basis for their claims of overtime pay and unfair labor practice and that they are mere project employees. Also, petitioner averred that Cherry Bennish is not a real-party-in-interest and should be dropped as co-party.
On the other hand, respondents asserted in their position paper that they should be declared as regular employees of petitioner corporation. They posited that they are required to be in their workplace for nine hours under three different work shifts. In short, their working time is nine hours daily. While waiting to be engaged by prospective customers, respondents had to be designated in the waiting area ready to answer any call by the dispatchers and they were not allowed to leave the area for a longer period of five minutes. According to respondents, work in excess of eight hours a day is compensable as overtime and is compensable even if the worker is not really working. Hence, respondents prayed for the award of their one-hour daily overtime pay since the start of their employment, payment of the one-hour excess of the nine-hour daily work shift or in the alternative, to allow them to enjoy their daily one hour lunch/meal break.
The Labor Arbiter’s Ruling:
On November 29, 2011, Labor Arbiter Maria Ada Aniceto-Veloso rendered a Decision[5], the pertinent portion of which reads:
“WHEREFORE, premises considered, herein complainants are considered project employees by the nature of their employment contracts with respondent G & S TRANSPORT CORPORATION.
However, salary differentials are hereby awarded to the complainants, as follows:
1. Alexander Rosales – 2. Juanito S. Magsoling – 3. Alfonso E. Arrogante, Jr. Total All other claims are dismissed for lack of merit.
SO ORDERED.”
Aggrieved, petitioner filed a partial appeal with the National Labor Relations Commission, Fourth Division, Cebu City praying for the reversal of the award of salary differentials to respondents.
Too, respondents filed their appeal on the grounds that the Labor Arbiter erred in declaring them as project employees and in finding that they have been working only for eight hours during their period of employment .
The NLRC Ruling:
On June 29, 2012, the NLRC, Fourth Division, Cebu City rendered a Decision[6], reversing the Labor Arbiter’s Decision, the pertinent portion of which reads as follows:
“Thus, contrary to the finding of the Labor Arbiter, We do not simply ascribe validity on the fact that complainants’ project employment agreements were completed. Evidently, complainants must be declared regular employees.
As regards their claim for overtime pay, however, We agree with the finding below that there is no basis therefor. Apart from the fact that there is actually nothing on record that establishes complainants’ entitlement to this benefit, complainants are correctly considered to be field workers who are not entitled to overtime pay.
Finally, on the award of salary differentials, We find the same misplaced.
Section 7, Rule V of the 2005 of the Revised Rules of Procedure of the NLRC, which was then in force at the time of complainants’ filing of their complaint, mandates:
SECTION 7 – SUBMISSION OF POSITION PAPER AND REPLY –
x x x x x x
b) The position papers of the parties shall cover only those claims and causes of action raised in the complaint or amended complaint, excluding those that may have been amicably settled, and accompanied by all supporting documents, including the affidavits of witnesses, which shall take the place of their direct testimony.
X x x x x x
It is clear, therefore, that parties shall not be allowed to allege facts or present evidence to prove facts, not referred to and any cause or causes of action not included in the complaint or position papers, affidavits and other documents.Records of the case reveal that complainants did not expressly claim and, in fact, had not identified underpayment of wages as a cause of action in their complaint. The said claim was likewise not substantiated, or in the least, discussed in complainants’ position paper. Yet, the Labor Arbiter proceeded to grant said salary differentials to complainants in the total amount of P 28,128.00.
We rule, therefore, that the Labor Arbiter had no authority to pass upon and resolve an issue and grant a claim which was not pleaded and proved before her in the first place. By granting salary differentials which was a claim not identified by complainants in their complaint, the Labor Arbiter acted without authority, and consequently, in excess of her jurisdiction. Consequently, the grant of salary differentials must be deleted.
WHEREFORE, premises considered, the decision appealed from is hereby REVERSED and SET ASIDE and NEW ONE ENTERED deleting the award of salary differentials and declaring complainants as regular employees of respondent G & S Transport Corporation but are not entitled to overtime pay.
SO ORDERED.”
Dissatisfied, petitioner filed a Motion[7] for partial reconsideration on the following grounds: (1) there is no such cause of action as regularization under the Labor Code and (2) complainants are project employees as distinguished from regular rank and file employees of the company.
Said motion was denied in a Resolution[8] dated September 24, 2012.
Hence, this petition for certiorari.
THE ISSUES:
I.
“WHETHER OR NOT THE NLRC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN ENTERTAINING THE COMPLAINTS FOR REGULARIZATION AND DECLARING PRIVATE RESPONDENTS REGULAR EMPLOYEES AS DISTINGUISHED FROM PROJECT OR PROJECT-BASED EMPLOYEES;IA.
WHETHER OR NOT A COMPLAINT FOR REGULARIZATION CANNOT PER SE BE THE PRINCIPAL CAUSE OF ACTION UNDER THE LABOR CODE, AS AMENDED;1B.
ASSUMING THAT THE ISSUE CAN BE ADJUDICATED, THE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION IN DECLARING PRIVATE RESPONDENTS REGULAR EMPLOYEES. “
Petitioner’s Contentions:
Petitioner asserts that respondents are project employees and not regular employees. Petitioner explains that in view of the exigency and demands of the business, it has no choice but to hire respondents as project employees for its rent-a-car business which is limited by service contracts imposed by their clients such as hotels and airports. According to petitioner, such arrangement is allowed by existing laws. Relying on Article 280 of the Labor Code, an employment is deemed to be regular except where the employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee such as in petitioner’s business. As such, petitioner insists that the law clearly allows an employer to hire employees for a specific project. Respondents’ project employment agreements show that they were hired for a specific project such as Shangri-la Mactan Island Resort and Spa Project with a very clear agreement on the completion or termination of the project at the time the employees were engaged.
Petitioner contends that public respondent erred in concluding that respondents were regular employees when it based its conclusion on the following: (a) that respondents were employees of petitioner before the project came into play and (b) that petitioner failed to present its contract with Shangri-la Mactan and (c ) failure to submit a report of an employee’s termination to the nearest public employment office each time the employment was terminated due to a project’s completion. Petitioner points out that at the time the complaints were filed, respondents were still employees of the former such that there was nothing to report because they were never terminated due to the completion of the project.
THIS COURT’S RULING:
Respondents worked for petitioner for several years as drivers of its rent-a-car business. Through all those years, petitioner treated them as project employees so that they never obtained tenure. At first glance, petitioner appears to be correct as they entered into contracts of employment or more appropriately, appointment papers to which they signed their conformity as project employees every time petitioner needed their services and a termination of their employment was served upon them upon completion of every project.
Petitioner, to bolster its stand, rely on these employment contracts specifically for the Shangri-la Mactan International Resort (SMIR) Contract which begun on May 1, 2008 for Rosales and Arrogante and July 2, 2008 for Magsoling. Such contracts prove that respondents were informed of the duration and scope of their work as well as their status as project employees. However, it should be noted that no other evidence was offered except for the 2008 employment contracts to prove petitioner’s claim. There are no other employment contracts before the SMIR project offered in evidence. Also, petitioner failed to submit the service contract itself between Shangri-la and G & S.
Public respondent correctly pierced the cover of respondents’ project employment contracts and declared them to be regular employees. Under Section 280 of the Labor Code, a project employee is one whose employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.[9]
Assuming arguendo that respondents were initially hired for a specific project or undertaking, the continuing need for their services for several years have undeniably made them regular employees. To reiterate, respondents’ employment history stands out for their continuous hiring in the company’s rent-a-car business. The tasks they performed as drivers are indisputably necessary and desirable in petitioner’s rent-a-car business. In Maraguinot, Jr. vs NLRC,[10] the Supreme Court held that once a project employee has been (1) continuously, as opposed to intermittently rehired by the same employer for he 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 employer must be deemed a regular employer.
Moreover, it should also be noted that petitioner failed to file termination reports to DOLE upon the completion of a project which is but proper for project employees. Public respondent correctly opined, thus:
xxx Moreover, 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 each time the employment is terminated due to the completion of a project. In this case, there was no evidence that there was indeed a report, contrary to the claim of respondents and the finding of the Labor Arbiter. Respondents’ failure to file termination reports upon the cessation of complainants’ employment is an indication that complainants are not project but regular employees. It has been held that 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. If indeed complainants are project employees, respondents should have filed as many termination reports as there were projects actually finished by complainants.”
Public respondent observed that petitioners never reported the completion of its projects and the termination of the employees in its finished projects to the nearest Public Employment Office. In Ochoco vs NLRC,[11] the failure of the employer to report to the nearest employment office the termination of the workers every time it completed a project was considered by the High Court as proof that they were not project employees.
Following the cautionary statement made in Maraguinot, this Court reiterates that what this decision merely accomplishes is a judicial recognition of the employment status of a project employee in accordance with what is fait accompli, ie. the continuous rehiring or hiring by the employer of a project employee who performs tasks necessary or desirable to the employer’s usual business or trade.
Overtime pay and salary differential
Anent respondents’ claims for overtime pay, it must be denied because there is no concrete proof that they are entitled thereto. The burden of proving entitlement to overtime pay rests on the employee because these are not incurred in the normal course of business.[12] In the absence of any concrete proof that additional service beyond the normal working hours had indeed been rendered, We cannot grant overtime pay to respondents. It is well to remember that it is a basic rule in evidence that each party must prove his affirmative allegation.[13] If he claims a right granted by law, he must prove his claim by competent evidence and not upon the weakness of his opponent.[14] Invoking the case of Lopez vs Bodega City, GR No. 155731, September 3, 2007, the Supreme Court held that burden of proof is upon the complainant who claims to be an employee. Here, respondents have failed to discharge this burden.
On the other hand, respondents have not identified underpayment of wages as a cause of action in their respective complaints. Neither was said claim substantiated, or even discussed in their position paper. The Labor Arbiter, however, awarded salary differentials to respondents in the amount of P 28,128.00 which in effect, was in excess of its jurisdiction. Public respondent thus correctly deleted the award of salary differentials.
One final note. In Mercardo vs AMA Computer College Paranaque City, GR No. 183572, April 13, 2010, the Supreme Court ruled that in certiorari proceedings under Rule 65 of the Rules of Court, the appellate court does not assess and weigh the sufficiency of evidence upon which the Labor Arbiter and the NLRC based their conclusion. The query in this proceeding is limited to the determination of whether or not the NLRC acted without or grave abuse of discretion in rendering its decision. Grave abuse of discretion in certiorari proceedings amounts to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law or that public respondent acted in an arbitrary and despotic manner by reason of passion or personal hostility or in such whimsical and capricious exercise of judgment equivalent to lack of jurisdiction.[15] However, as an exception, the appellate court may examine and measure the factual findings of the NLRC if the same are not supported by substantial evidence.
Verily, we find that public respondent’s Decision and Resolution were not attended with grave abuse of discretion being supported by substantial evidence.
WHEREFORE, the petition is DENIED. The Decision dated Decision dated June 29, 2012, and Resolution dated September 24, 2012 of the National Labor Relations Commission, Seventh Division, Cebu City, in NLRC Case No. VAC-02-000085-2012, are AFFIRMED.
No pronouncement as to costs.
SO ORDERED.
Maxino, P.A.A., and Francisco, C. , JJ., concur.
[1] Rollo, p. 17
[2] Rollo, p. 31
[3] Rollo, p. 28
[4] Rollo, pp. 40-45
[5] Rollo, p. 31
[6] Rollo, p. 17
[7] Rollo, p. 127
[8] Rollo, p. 28
[9] Saberola vs Suarez, GR NO. 151227, July 14, 2008
[10] 348 Phil 580, cited in DM Consunji Inc and or David Consunji vs Jamin, GR No. 192514, April 18, 2012
[11]120 SCRA 774
[12] Loon et al vs Power Master Inc, GR No. 189404, December 11, 2003
[13] Martinez vs NLRC, 272 SCRA 793
[14] Rufina Patis Factory vs Alusitain, GR No. 146202, July 14, 2004
[15] FEBTC vs Shemberg Marketing Corp, GR No. 163878, December 12, 2006