BAGUIO COUNTRY CLUB CORPORATION, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION, ASSOCIATED LABOR UNION (ALU) AND JIMMY CALAMBA, RESPONDENTS.

This petition for certiorari seeks to annul and set aside
the resolution issued by the respondent National Labor Relations Commission
dated June 10, 1985 dismissing the appeal of petitioner for lack of merit and
affirming in toto the decision of the Executive Labor Arbiter dated
September 15, 1982 declaring private respondent Calamba as a regular employee
entitled to reinstatement to the position of gardener without loss of seniority
and with full backwages, benefits and privileges from the time of his dismissal
up to reinstatement including 13th month pay.

The
antecedent facts are as follows:

Petitioner Baguio Country Club Corporation (corporation) is a
recreational establishment certified by the Ministry of Labor and Employment as
an “entertainment-service” establishment. Respondent National Labor Relations Commission (Commission) is a
government instrumentality created by law, impleaded in its official capacity,
while private respondent Associated Labor Union (union) is a duly registered
labor organization and private respondent Jimmy Calamba is an employee of the
petitioner corporation as laborer, dishwasher, and gardener.

Private respondent Jimmy Calamba was employed on a day to day
basis in various capacities as laborer and dishwasher for a period of ten (10)
months from October 1, 1979 to July 24, 1980. On September 1, 1980 to October 1, 1980, private respondent Calamba was
hired as a gardener and rehired as such on November 15, 1980 to January 4, 1981
when he was dismissed by the petitioner corporation. (see Rollo, pp. 28-36)

On August 3, 1981, private respondent Jimmy Calamba assisted by
private respondent union instituted
a complaint against petitioner corporation with the Ministry of Labor (now
Department of Labor and Employment), Baguio District Office, Baguio City for
unfair labor practice, illegal dismissal and non-­payment of 13th month pay for
1979 and 1980.

The Executive Labor Arbiter Sotero L. Tumang rendered a decision
on September 15, 1982 declaring private respondent Calamba as a regular
employee and ordering petitioner to reinstate private respondent to the
position of gardener without loss of seniority and with full backwages,
benefits and privileges from the time of his dismissal up to reinstatement
including 13th month pay.

Labor Arbiter Tumang found as follows:

“After a careful perusal of the facts presented by the
parties, we find the complaint for illegal dismissal and non-­payment of
thirteenth (13th) month pay, meritorious for the following reasons:

“1. Complainant Jimmy Calamba has attained
regular status as an employee of the Club on account of the nature of the job
he was hired, to perform continuously and on staggered basis for a span of
thirteen months. True that there were
employment contracts executed between the Club and the complainant indicating
the period or the number of days the complainant is being needed but what is to
be considered is not the agreement, written or otherwise, of the parties in
determining the regularity or casualness of a job but it should be the nature
of` the job. Clearly, the work of a
gardener is not a seasonal or for a specific period undertaking but it is a
whole year round activity. We must not
lose sight of the fact that the Baguio Country Club Corporation is an exclusive
Club with sustaining members who avails (sic) of its facilities the whole year
round and it is necessary, as has been observed and of common knowledge, that
the gardens including the green of its golf course where the complainant was
assigned must be properly kept and maintained.

“2. Being a regular employee with more than one
(1) year length of service with the respondent, Jimmy Calamba could not be
terminated without a just or valid cause. This is so explicit in our Constitution that the security of tenure of a
worker must be safeguarded and protected and Jimmy Calamba should enjoy no less
protection.

“3. Jimmy Calamba was dismissed without any
written clearance from the Ministry of Labor and Employment prior to his
termination. Worse, the respondent
fired the complainant from his job due to the a (sic) alleged expiration of his
employment contract ten (10) times but not even a single report of his
dismissal as mandated by law was submitted to the Ministry of Labor and
Employment.

“4. The Company did not refute the claim of
Jimmy Calamba for payment of his thirteenth (13th) month pay under P.D. 851 nor
presented any report of compliance to that effect with the Ministry of Labor
and Employment and, therefore, he must be paid correspondingly.” (Rollo,
pp. 39-40).

Hence, the petitioner interposed an appeal to the respondent
Commission.

On June 10, 1985, after finding that there existed no sufficient
justification to disturb the appealed decision, the respondent Commission
rendered resolution dismissing the appeal for lack of merit.

Hence, this present petition raising four (4) assignment of
errors, which are as follows:

“I

“THAT THE RESPONDENT COMMISSION GRAVELY ERRED IN HOLDING THAT
PRIVATE RESPONDENT JIMMY CALAMBA WAS A ‘CASUAL’ EMPLOYEE AND HAD ATTAINED THE
STATUS OF A REGULAR EMPLOYEE, DESPITE THE INCONTROVERTIBLE FACT THAT SAID
PRIVATE RESPONDENT WAS A CONTRACTUAL AND SEASONAL EMPLOYEE.

“II

“THAT THE RESPONDENT COMMISSION GRAVELY ERRED IN HOLDING THAT
THE CONCLUSIONS OF THE EXECUTIVE LABOR ARBITER WERE FULLY SUPPORTED BY THE
EVIDENCE AND IN UPHOLDING THE REINSTATEMENT OF PRIVATE RESPONDENT JIMMY
CALAMBA.

“III

“THAT THE RESPONDENT COMMISSION GRAVELY ERRED IN HOLDING THAT
THE DISMISSAL OF PRIVATE RESPONDENT JIMMY CALAMBA REQUIRED PRIOR CLEARANCE FROM
THE MINISTRY OF LABOR AND EMPLOYMENT EACH TIME HIS CONTRACT OF EMPLOYMENT
EXPIRED.

“IV

“THAT THE RESPONDENT COMMISSION GRAVELY ERRED IN NOT HOLDING
THAT PRIVATE RESPONDENT ASSOCIATED LABOR UNION HAS NO LEGAL PERSONALITY TO FILE
THIS CASE FOR PRIVATE RESPONDENT JIMMY CALAMBA BEFORE THE REGIONAL OFFICE OF
THE NATIONAL LABOR RELATIONS COMMISSION, AS SAID PRIVATE RESPONDENT BEING A
CONTRACTUAL EMPLOYEE IS EXPRESSLY EXCLUDED FROM THE BARGAINING UNIT UNDER THE
COLLECTIVE BARGAINING AGREEMENT.” (Rollo, pp. 98-99)

Petitioner maintains that private respondent Calamba was a
contractual employee whose employment was for a fixed and specific period as
set forth and evidenced by the private respondent’s contracts of employment,
the pertinent portions of which are quoted as follows:

“x x x

“x x x the
employment may be terminated at any time
without liability to the Baguio Country Club other than for salary actually
earned up to and including the date of last service.

“His/her employment shall be on a
day to day BASIS for a temporary period x x
x subject to termination at any time at the discretion of the Baguio Country
Club Corporation.

“x x x. (Rollo, p. 7)

In addition, petitioner stresses that there was absolutely no
oral or documentary evidence to support the conclusion of the Executive Labor
Arbiter which was subsequently affirmed by the respondent Commission that
private respondent Calamba has rendered thirteen (13) months of continuous
service.

On the contrary, respondent Commission through the Solicitor
General argues that private respondent Calamba, having rendered services as
laborer, gardener and dishwasher for more than one (1) year, was a regular
employee at the time his employment was terminated.

Moreover, the nature of private respondent Calamba’s employment
as laborer, gardener, and dishwasher pertains to a regular employee because
they are necessary or desirable in the usual business of petitioner as a
recreational establishment.

The pivotal issue therefore, is whether or not the private
respondent Jimmy Calamba has acquired the status of a regular employee at the
time his employment was terminated.

After a careful review of
the records of this case, the Court finds no merit in the petition and holds
that the respondent Commission did not gravely abuse its discretion when it
affirmed in toto the decision of the labor arbiter.

The law on the matter is Article 280 of the Labor Code which
defines regular and casual employment as follows:

“Art.   280. Regular and
Casual Employment. — The provisions of written agreement to the contrary
notwithstanding and regardless of the oral agreement 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 exists.”

“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, 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.” (De Leon v. National Labor
Relations Commission, G.R. No. 70705, August 21, 1989, 176 SCRA 615, 620-621)

In the case at bar, the petitioner corporation, which is
certified by the Ministry of Labor and Employment as an “entertainment
service” establishment, claims that private respondent was contracted for
a fixed and specific period. However,
the records reveal that the private respondent was repeatedly re-hired to
perform tasks ranging from dishwashing and gardening, aside from performing
maintenance work.

Such repeated rehiring and the continuing need for his service
are sufficient evidence of the necessity and indispensability of his service to
the petitioner’s business or trade.

The law demands that the nature and entirety of the activities
performed by the employee be considered. It is not tenable to argue that the aforementioned tasks of private
respondent are not necessary in petitioner’s business as a recreational
establishment, just as it cannot be said that only those who are directly
involved in providing entertainment service may be considered as necessary
employees. Otherwise, there would have
been no need for the regular maintenance section of petitioner corporation.

Furthermore, the private respondent performed the said tasks
which lasted for more than one year, until early January, 1981 when he was
terminated. Certainly, by this fact
alone he is entitled by law to be considered a regular employee.

Owing to private respondent’s length of service with the
petitioner corporation, he became a regular employee, by operation of law, one
year after he was employed. It is more
in consonance with the intent and spirit of the law to rule that the status of
regular employment attaches to the casual employee on the day immediately after
the end of his first year of service. To rule otherwise is to impose a burden on the employee which is not
sanctioned by law. (see Kimberly
Independent Labor Union for Solidarity, Activism and Nationalism in Line
Industries and Agriculture v. Drilon, G.R. No. 77629, May 9, 1990, 185 SCRA
190, 203­-204)

It is of no moment that private respondent was told when he was
hired that his employment would only be “on a day to day basis for a
temporary period” and may be terminated at any time subject to the
petitioner’s discretion. Precisely, the
law overrides such conditions which are prejudicial to the interest of the
worker. Evidently, the employment
contracts entered into by private respondent with the petitioner have the
purpose of circumventing the employee’s security of tenure. The Court therefore, rigorously disapproves
said contracts which demonstrate a clear attempt to exploit the employee and
deprive him of the protection sanctioned by the Labor Code.

It is noteworthy that 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. 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. (see De Leon
v. NLRC, ibid)

All premises considered, the Court is convinced that the assailed
resolution of the respondent Commission is not tainted with arbitrariness that
would amount to grave abuse of discretion or lack of jurisdiction and therefore,
We find no reason to disturb the same.

ACCORDINGLY, the petition is DISMISSED for lack of merit.

SO ORDERED.

Narvasa, C.J., Cruz, and
Grino-Aquino, JJ., concur.