GERONIMO SADOL, PETITIONER, VS. PILIPINAS KAO, INC., REQUITO VEGA, BELEN GOMEZ, ARTURO GOMEZ & NLRC SECOND DIVISION, RESPONDENTS.

The issue posed in this case is whether or not a party who failed
to appeal from a decision of the labor arbiter to the National Labor Relations
Commission (NLRC) within the ten (10) day reglementary
period can still participate in a separate appeal timely interposed by the
adverse party by filing a motion for reconsideration of a decision of the NLRC
on such appeal.

Petitioner was recruited as a laborer by private respondents Requito Vega, Antonio Gomez and Belen Gomez, who are the
owners of Vega & Co., a private recruitment agency, with assignment at
respondent Pilipinas Kao, Inc. (PKI for brevity),
particularly at the Pit Burning area. 
Sometime on April 16, 1984,
he was allegedly summarily dismissed. 
Hence, on July 24, 1986,
he filed a complaint for reinstatement and backwages
with Region X of the Department of Labor and Employment in Cagayan
de Oro City.

On November 13, 1986,
the labor arbiter ordered all parties to submit their position papers.  Only petitioner complied.  On December
17, 1986, petitioner filed an urgent motion that the failure of
respondents to file their position
papers is a waiver and so judgment should be rendered in favor of petitioner.  Similar
motions were filed by petitioner on January 23, 1987 and May 15, 1987.

On June 26, 1987,
the labor arbiter rendered a decision ordering private respondents to jointly
and solidarily pay petitioner his separation pay
computed at one month for every year of service within the reglementary period.  Petitioner appealed to the NLRC.  Said
respondents also appealed but it
was filed out of time.

On August 26, 1988, the Second Division of the NLRC promulgated a
decision modifying the appealed decision in that respondent PKI was ordered to
reinstate petitioner to his former position without loss of seniority rights
and other accrued benefits and
with full backwages from the time of dismissal up to
his actual reinstatement, and in case reinstatement is impossible, payment of
full backwages and separation pay of one (1) month
salary for every year of service.  The
appeal of respondent PKI was dismissed for having been filed out of time.

The PKI allegedly received a copy of the decision of the NLRC
only on September 13, 1988.  A motion for reconsideration of said decision
dated September 22, 1988 was filed by said respondent and a similar motion was
filed by Samahang
Kabuhayan ng Barangay Luz Banzon (SKLB for
brevity) to which an opposition was filed by petitioner.

On September 30, 1988,
a resolution was promulgated by the same division of the NLRC, setting aside
its decision and dismissing the case
for lack of merit.  A motion for
reconsideration thereof filed by petitioner who besides questioning its
findings of acts raised the issue that said respondent’s appeal having been
filed out of time its motion for reconsideration of the decision should not
have been entertained as it raised issues for the first on appeal which were
not raised before the labor
arbiter.  This motion was denied on November 27, 1988.

Hence, the herein petition for certiorari wherein petitioner
recites the following assignment of errors:

“I

THE HONORABLE COMMISSION, SECOND DIVISION, SERIOUSLY ERRED IN
FINDING THAT RESPONDENTS REQUITO VEGA, ARTURO GOMEZ AND BELEN GOMEZ IS A LAWFUL
INDEPENDENT LABOR CONTRACTOR;

II

THE HONORABLE COMMISSION, SECOND DIVISION, SERIOUSLY ERRED IN
FINDING IN ITS RESOLUTION THAT COMPLAINANT-APPELLANT VOLUNTARILY ABANDONED HIS
JOB;

III

THE HONORABLE COMMISSION, SECOND DIVISION, SERIOUSLY ERRED AND/OR
COMMITTED GRAVE ABUSE OF DISCRETION IN GIVING DUE COURSE AND/OR ENTERTAINING
THE MOTION FOR RECONSIDERATION FILED BY RESPONDENTS?APPELLANTS AND
REVERSING ITS OWN DECISION/ RESOLUTION DATED AUGUST 26, 1988;

IV

THE HONORABLE COMMISSION, SECOND DIVISION, SERIOUSLY ERRED IN
FAILING TO GIVE DUE CONSIDERATION OF COMPLAINANT-APPELLANT’S OPPOSITION TO
MOTION FOR RECONSIDERATION DATED SEPTEMBER
27, 1988.^[1]

The third and fourth assignment of errors shall first be
resolved.

There is no question that private respondents failed to file a
timely appeal from the decision of the labor arbiter while the petitioner was
able to interpose his appeal within the reglementary
period.  It is also an accepted postulate
that issues not raised in the lower court or the labor arbiter may not be
raised for the first time on appeal.

Note is taken of the fact
that even the Solicitor General refused to represent the NLRC in this
proceeding as it shares the view of petitioner that the decision of the labor
arbiter having become final by
the failure to respondent PKI to appeal on time the NLRC may no longer amend,
modify, much less set aside the same.^[2]

This posture is correct insofar as respondent PKI is
concerned.  However, as petitioner had
filed a timely appeal the NLRC had jurisdiction to give due course to his
appeal and render the decision of August
28, 1988, a copy of which was furnished respondents.  Having lost the right to appeal can
respondent PKI file a motion for reconsideration of said decision?  The Court resolves the question in the
affirmative.  The rules of technicality must yield to the broader interest of
justice.  It is only by giving due course
to the motion for reconsideration that was timely filed that the NLRC may be
able to equitably evaluate the conflicting versions of facts presented by the parties.

In the now questioned resolution of the NLRC dated September 30, 1988, the following
findings and conclusions were made:

“Respondent SKLB assails the finding of this Commission that it is
engaged in labor-only contracting. In support thereof, respondent submitted a
Clearance Certificate issued by the Department of Labor and Employment,
Regional Office No. 10 situated in Cagayan de Oro City, certifying to its being cleared for issuance of a
permit as a labor contractor.  It also
submitted payrolls showing that it indeed operated as such independent labor
contractor in accordance with Article 106 of the Labor Code.

Attached to respondent SKLB’s motion
likewise is the joint affidavit of one Mario T. Ecarnum
and Benito U. Ecarnum who jointly stated that they
were neighbors and co-workers of the complainant in the pit burning area, in a
work contracted by aforesaid respondent with respondent Pilipinas
Kao, Inc.; that complainant abandoned his work starting April 19, 1984 when he
went to Manila to apply for work abroad and it was only about eight (8) months
later that he returned when he failed to secure an overseas employment; that
complainant’s prolonged absence was without prior permission or leave of
absence.

Respondent SKLB further contends that it meets all requirements set
by law and jurisprudence pertaining to an independent labor contractor, citing
the case of Vda. de Eustaquio
vs. Workmen’s Compensation Commission, 97 SCRA 255, thus:

‘An independent contractor is one who, in rendering services,
exercise an independent employment or occupation
and represents the will of his employer
only as to the results of his work; and who is engaged to perform a certain
service to another according to his own manner and methods, free from control
and direction of his employer in all matters connected with the performance of
the service, except as to the result of the work.’

To further buttress respondent SKLB’s
claim of being an independent labor contractor and employer of complainant, it
submitted a copy of a Memorandum dated April
21, 1984 sent to complainant requiring the latter to report to its
office immediately otherwise he would be deemed to have abandoned his work.

It does strike Us as odd that if indeed complainant was dismissed
sometime in April 1984 it took him almost
three (3) years before
filing the instant case for illegal dismissal. 
This circumstance adds a significant dimension to respondent’s position
that indeed complainant abandoned his job to look for greener pastures and it
was only when he failed to find such opportunity that he came back to demand
that he be allowed to resume the employment which he unceremoniously abandoned.

All the foregoing undisputed circumstances, taken together,
preponderate in favor of respondent SKLB’s claim of
being a lawful independent labor contractor which employed complainant who
unjustifiably abandoned his employment.

WHEREFORE, the decision sought to be reconsidered is hereby SET
ASIDE and a new one entered, dismissing the case for lack of merit.”^[3]

The factual findings of the NLRC are conclusive on this Court
because the same appear to be supported by substantial evidence.

WHEREFORE, the petition is DISMISSED for lack of
merit.  No costs.

SO ORDERED.

Narvasa, (Chairman), Cruz, and Medialdea, JJ., concur.

Griño-Aquino, J., on leave.

^[1]
Pages 4 to 5, Rollo.

^[2]
Pages 124 to 132, Rollo.

^[3]
Pages 54 to 56, Rollo.