MOISES DE LEON, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION AND LA TONDENA, INC., RESPONDENTS.

This petition for certiorari seeks to annul and sat
aside:  (1) the majority decision dated January 28, 1985 of the National
Labor Relations Commission First Division in Case No. NCR-8-3566-83, which
reversed the Order dated April 6, 1984
of Labor Arbiter Bienvenido S. Hernandez directing
the reinstatement of petitioner Moises de Leon by
private respondent La Tondena, Inc. with payment of backwages and other benefits due a regular employee; and,
(2) the Resolution dated March 21,
1985 denying petitioner’s motion for reconsideration.

It appears that petitioner was employed by private respondent La Tondena, Inc. on December
11, 1981, at the Maintenance Section of its Engineering Department
in Tondo, Manila.^[1]
His work consisted mainly of painting company building and equipment, and other
odd jobs relating to maintenance.  He was
paid on a daily basis through petty cash vouchers.

In the early part of January, 1983, after a service of more than
one (1) year, petitioner requested from respondent company that he be included
in the payroll of regular workers, instead of being paid through petty cash
vouchers.  Private respondent’s response
to this request was to dismiss petitioner from his employment on January 16, 1983.  Having been refused reinstatement despite
repeated demands, petitioner filed a complaint for illegal dismissal,
reinstatement and payment of backwages before the
Office of the Labor Arbiter of the then Ministry now Department of Labor and
Employment.

Petitioner alleged that he was dismissed following his request to
be treated as a regular employee; that his work consisted of painting company
buildings and maintenance chores like cleaning and operating company equipment,
assisting Emiliano Tanque,
Jr., a regular maintenance man; and that weeks after his dismissal, he was
re-hired by the respondent company indirectly through the Vitas-Magsaysay Village Livelihood Council, a labor agency of
respondent company, and was made to perform the tasks which he used to do.  Emiliano Tanque, Jr. corroborated these averments of petitioner in
his affidavit.^[2]

On the other hand, private respondent claimed that petitioner was
not a regular employee but only a casual worker hired allegedly only to paint a certain building in
the company premises, and that his work as a painter terminated upon the
completion of the painting job.

On April 6, 1984,
Labor Arbiter Bienvenido S. Hernandez rendered a decision^[3]
finding the complaint meritorious and the dismissal illegal; and ordering the
respondent company to reinstate petitioner with full backwages
and other benefits.  Labor Arbiter Hernandez
ruled that petitioner was not a mere casual employee as asserted by private
respondent but a regular employee.  He
concluded that the dismissal of petitioner from the service was prompted by his
request to be included in the list of regular employees and to be paid through
the payroll and is, therefore, an attempt to circumvent the legal obligations
of an employer towards a regular employee.

Labor Arbiter Hernandez found as follows:

“After a thorough
examination of the records of the case and evaluation of the evidence and
versions of the parties, this Office finds and so holds that the dismissal of
complainant is illegal.  Despite the
impressive attempt of respondents to show that the complainant was hired as
casual and for the work on particular project, that is the repainting of Mama Rosa Building, which particular work of painting
and repainting is not pursuant to the regular business of the company,
according to its theory, we find differently. 
Complainant’s being hired on casual basis did not dissuade from the cold
fact that such painting of the building
and the painting and repainting of the equipment and tools and other things
belonging to the company and the odd jobs assigned to him to be performed when
he had no painting and repainting works related to maintenance as a maintenance
man are necessary and desirable to the better operation of the business
company.  Respondent did not even attempt
to deny and refute the corroborating statements of Emiliano
Tangue, Jr., who was regularly employed by it as a
maintenance man doing the same jobs not only of painting and repainting of
building, equipment and tools and machineries or machines of the company but
also other odd jobs in the Engineering and Maintenance Department that
complainant Moises de Leon did perform the same odd
jobs and assignments as were assigned to him during the period de Leon was
employed for more than one year continuously by said respondent company.  We find no reason not to give credit and weight
to the affidavit and statement made therein by Emiliano
Tanque, Jr. 
This strongly confirms that complainant did the work pertaining to the
regular business in which the company had been organized.  Respondent cannot be permitted to circumvent
the law on security of tenure by considering complainant as a casual worker on
daily rate basis and after working for a period that has entitled him to be
regularized that he would be automatically terminated.  xxx”^[4]

On appeal, however, the above decision of the Labor Arbiter was reversed
by the First Division of the National Labor Relations Commission by virtue of
the votes of two members^[5]
which constituted a majority. 
Commissioner Geronimo Q. Quadra dissented, voting “for the
affirmation of the well-reasoned decision of the Labor Arbiter below.”^[6]
The motion for reconsideration was denied. 
Hence, this recourse.

Petitioner asserts that the respondent Commission erred and
gravely abused its discretion in reversing the Order of the Labor Arbiter in
view of the uncontroverted fact that the tasks he
performed included not only painting but also other maintenance work which are
usually necessary or desirable in the usual business of private respondent;
hence, the reversal violates the Constitutional and statutory provisions for
the protection of labor.

The private respondent, as expected, maintains the opposite view
and argues that petitioner was hired
only as a painter to repaint specifically the Mama Rosa building at its Tondo compound, which painting work is not part of their
main business; that at the time of his engagement, it was made clear to him
that he would be so engaged on a casual
basis, so much so that he was not
required to accomplish an application form or to comply with the usual
requisites for employment; and that in fact, petitioner was never paid his
salary through the regular payroll but always through petty cash vouchers.^[7]

The Solicitor General, in his Comment, recommends that the
petition be given due course in view of the evidence on record supporting
petitioner’s contention that his work was regular in nature.  In his view, the dismissal of petitioner
after he demanded to be regularized was a subterfuge to circumvent the law on regular employment.  He further recommends that the questioned
decision and resolution of respondent Commission be annulled and the Order of the Labor Arbiter directing the
reinstatement of petitioner with payment of backwages
and other benefits be upheld.^[8]

After a careful review of the
records of this case, the Court finds merit in the petition as We sustain the position of the
Solicitor General that the
reversal of the decision of the Labor Arbiter by the respondent Commission was
erroneous.

The law on the matter is Article 281 of the Labor Code which
defines regular and casual employment as follows:

“Art. 281.  Regular and
casual employment – The provisions of a written agreement to the contrary
notwithstanding and regardless of the oral agreements of the parties, an
employment shall be deemed to be regular where the employee has been engaged to
perform activities which are usually necessary or desirable in the usual
business or trade of the
employer, 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 or where the work or services to be
performed is seasonal in nature and the employment
is for the duration of the season.

“An employment shall be deemed to be casual if it is not
covered by the preceding paragraph: 
Provided.  That any employee who
has rendered at least one year of service, whether such service is continuous
or broken, shall be considered a regular employee with respect to the activity
in which he is employed and his employment shall continue while such actually
exist.”

This provision reinforces the Constitutional mandate to protect
the interest of labor.  Its language
evidently manifests the intent to safeguard the tenurial
interest of the worker who may be denied the rights and benefits due a regular
employee by virtue of lopsided agreements with the economically powerful
employer who can maneuver to keep an employee on a casual status for as long as
convenient.  Thus, contrary agreements notwithstanding, an employment is
deemed regular when the activities performed by the employee are usually
necessary or desirable in the usual business or trade of the employer.  Not considered regular are the so-called
“project employment” the completion or termination of which is more or
less determinable at the time of employment, such as those employed in
connection with a particular construction project,^[9]
and seasonal employment which by its nature is only desirable for a limited
period of time.  However, any employee who has rendered at least one year of service, whether
continuous or intermittent, is deemed
regular with respect to the activity he performed and while such activity actually exists.

The primary standard, therefore, of determining a regular
employment is the reasonable connection between the particular activity performed
by the employee in relation to the usual business or trade of the
employer.  The test is whether the former is usually
necessary or desirable in the usual business or trade of the employer. 
The connection can be determined by considering the nature of the work
performed and its relation to the scheme of the particular business or trade in its entirety.  Also, if the employee has been performing the
job for at least one year, even if the performance is not continuous or merely intermittent, the law deems the
repeated and continuing need for its performance as sufficient evidence of the
necessity if not indispensability of
that activity to the business.  Hence,
the employment is also considered regular, but only with
respect to such activity and while such activity exists.

In the case at bar, the
respondent company, which is engaged in the business of manufacture and
distillery of wines and liquors, claims that petitioner was
contracted on a casual basis specifically to paint a certain company building
and that its completion rendered petitioner’s employment terminated.  This may
have been true at the beginning, and had it been shown that petitioner’s activity
was exclusively limited to painting that certain building, respondent company’s
theory of casual employment would have been worthy of consideration.

However, during
petitioner’s period of employment, the records reveal that the tasks assigned
to him included not only painting of company buildings,
equipment and tools but also cleaning and oiling machines, even operating a drilling machine, and other odd
jobs assigned to him when he had no painting
job.  A regular employee of respondent
company, Emiliano Tanque,
Jr., attested in his affidavit that petitioner worked with him as a maintenance
man when there was no painting job.

It is noteworthy that, as
wisely observed by the Labor Arbiter, the respondent company did not even
attempt to negate the above averments of petitioner and his co-employee.  Indeed, the respondent company did not only
fail to dispute this vital point, it even went further and confirmed its
veracity when it expressly admitted in its comment that, “The main bulk of
work and/or activities assigned to petitioner was painting and other related
activities.  Occasionally, he was
instructed to do other odd things in connection with maintenance while
he was waiting for materials he would need in his job or when he had finished
early one assigned to him.”^[10]

The respondent Commission, in reversing the finding of the Labor
Arbiter reasoned that petitioner’s job cannot be considered as necessary or
desirable in the usual business or trade of the employer because,
“Painting the business or factory building is not a part of the
respondent’s manufacturing or distilling process of wines and liquors.”^[11]

The fallacy of the reasoning is readily apparent in view of the
admitted fact that petitioner’s activities included not only painting but other
maintenance work as well, a fact which even the respondent Commission, like the
private respondent, also expressly recognized when it stated in its decision
that, “Although complainant’s (petitioner) work was mainly painting, he
was occasionally asked to do other odd jobs in connection with maintenance
work.”^[12]
It misleadingly assumed that all the
petitioner did during his more than one year of employment was to paint a
certain building of the respondent company, whereas it is admitted that he was given other assignments relating to
maintenance work besides painting company building and equipment.

It is self-serving, to say the least, to isolate petitioner’s
painting job to justify the proposition of casual employment and conveniently
disregard the other maintenance activities of petitioner which were assigned by
the respondent company when he was not painting.  The law demands that the nature and entirety
of the activities performed by the employee be considered.  In the case of petitioner, the painting and
maintenance work given him manifest a treatment consistent with a maintenance
man and not just a painter, for if his job was truly only to paint a
building there would have been no basis for giving him other work assignments in between painting activities.

It is not tenable to argue that the painting and maintenance work
of petitioner are not necessary in respondent’s business of manufacturing
liquors and wines, just as it cannot be said that only those who are directly
involved in the process of producing wines and liquors may be considered as
necessary employees.  Otherwise, there
would have been no need for the regular Maintenance Section of respondent
company’s Engineering Department, manned by regular employees like Emiliano Tanque, Jr., whom
petitioner often worked with.

Furthermore, the petitioner performed his work of painting and
maintenance activities during his employment in respondent’s business which lasted for more than one year, until
early January, 1983 when he demanded to be regularized and was subsequently
dismissed.  Certainly, by this fact alone
he is entitled by law to be considered a regular employee.  And considering further that weeks after his
dismissal, petitioner was rehired by the company through a labor agency and was
returned to his post in the Maintenance Section and made to perform the same
activities that he used to do, it cannot be denied that his activities as a
regular painter and maintenance man still exist.

It is of no moment that petitioner was told when he was hired that his employment would only be casual, that he was paid
through cash vouchers, and that he did not comply with regular employment
procedure.  Precisely, the law overrides
such conditions which are prejudicial to the interest of the worker whose weak
bargaining position needs the support of the State.  What determines whether a certain employment
is regular or casual is not the will and word of the employer, to which the
desperate worker often accedes, much less the procedure of hiring the employee
or the manner of paying his salary.  It
is the nature of the activities performed in relation to the particular
business or trade considering all circumstances, and in some cases the length
of time of its performance and its continued existence.

Finally, considering its task to give life and spirit to the
Constitutional mandate for the
protection of labor, to enforce and uphold our labor laws which must be
interpreted liberally in favor of the worker in case of doubt, the Court cannot
understand the failure of the respondent Commission to perceive the obvious
attempt on the part of the respondent company to evade its obligations to
petitioner by dismissing the latter days after he asked to be treated as a regular worker on the flimsy pretext
that his painting work was suddenly finished only to rehire him indirectly
weeks after his dismissal and assign him to perform the same tasks he used to perform. 
The devious dismissal is too obvious to escape notice.  The inexplicable disregard of established and
decisive facts which the Commission itself admitted to be so, in justifying a conclusion adverse to
the aggrieved laborer clearly spells a grave abuse of discretion amounting to
lack of jurisdiction.

WHEREFORE, the
petition is GRANTED.  The assailed
Decision and Resolution of the National Labor Relations Commission are hereby
annulled and set aside.  The Order of
Labor Arbiter Bienvenido S. Hernandez dated April 6, 1984 is reinstated.  Private respondent is ordered to reinstate
petitioner as a regular maintenance man, and to pay petitioner 1) backwages equivalent to three years from January 16, 1983,
in accordance with the Minimum Wage Orders in effect for the period covered,  2) ECOLA, 3) 13th Month Pay, 4) and other
benefits under pertinent Collective Bargaining Agreements, if any.

SO ORDERED.

Gutierrez, Jr., Feliciano, Bidin, and Cortes, JJ., concur.

^[1]
NLRC Decision, Annex “A”, Petition, p. 16, Rollo;
Labor Arbiter’s Decision, Annex “E”, Petition, p. 25, Rollo.

^[2]
Annex “D”, Petition, p. 24, Rollo.

^[3]
Annex “E”, Petition, p. 25; Rollo.

^[4]
Rollo, pp. 29-30.

^[5]
namely, Diego P. Atienza, Presiding Commissioner and Cleto T. Villatuya, Commissioner.

^[6]
Rollo,  p.
19.

^[7]
Private Respondent’s Comment, p. 2; Rollo, p.
55.

^[8]
Rollo, pp.
60-71.

^[9]
Sandoval Shipyards, Inc. vs. NLRC, 136 SCRA 674.

^[10]
Rollo, p. 55.

^[11]
NLRC Decision, p. 3; Rollo, p. 18.

^[12]
NLRC Decision, p. 2; Rollo, p. 17.