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G.R. No.

96078 January 9, 1992

HILARIO RADA, petitioner,
)LANNERS, INC., respondents.
Cabellero, Calub, Aumentado & Associates Law Offices for petitioner.
In this special civil action for certiorari, petitioner Rada seeks to annul the decision of respondent National Labor Relations
Commission (NLRC), dated November 19, 199, reversin! the decision of the labor arbiter "hich ordered the reinstatement
of petitioner "ith back"a!es and a"arded him overtime pa#.
$he facts, as stated in the Comment of private respondent %hilnor Consultants and %lanners, Inc. (%hilnor), are as follo"s&
%etitioner's initial emplo#ment "ith this Respondent "as under a (Contract of )mplo#ment for a *efinite
%eriod( dated +ul# ,, 19,,, cop# of "hich is hereto attached and made an inte!ral part hereof as Annex A
"hereb# %etitioner "as hired as (Driver( for the construction supervision phase of the -anila North
).press"a# ).tension, /econd /ta!e (hereinafter referred to as -N)) /ta!e 0) for a term of (about 01
months effective +ul# 1, 19,,.
... ... ...
2i!hli!htin! the nature of %etitioner's emplo#ment, Annex A specificall# provides as follo"s&
It is hereb# understood that the )mplo#er does not have a continuin! need for the
services of the )mplo#ee be#ond the termination date of this contract and that the
)mplo#ee's services shall automaticall#, and "ithout notice, terminate upon the
completion of the above specified phase of the pro3ect4 and that it is further understood
that the en!a!ement of his5her services is coterminus "ith the same and not "ith the
"hole pro3ect or other phases thereof "herein other emplo#ees of similar position as
he5she have been hired. (%ar. ,, emphasis supplied)
%etitioner's first contract of emplo#ment e.pired on +une 6, 19,9. -ean"hile, the main pro3ect, -N))
/ta!e 0, "as not finished on account of various constraints, not the least of "hich "as inade7uate fundin!,
and the same "as e.tended and remained in pro!ress be#ond the ori!inal period of 0.6 #ears. 8ortunatel#
for the %etitioner, at the time the first contract of emplo#ment e.pired, Respondent "as in need of *river
for the e.tended pro3ect. /ince %etitioner had the necessar# e.perience and his performance under the first
contract of emplo#ment "as found satisfactor#, the position of *river "as offered to %etitioner, "hich he
accepted. 2ence a second Contract of )mplo#ment for a *efinite %eriod of 1 months, that is, from +ul# 1,
19,9 to 9pril 6, 19: "as e.ecuted bet"een %etitioner and Respondent on +ul# ,, 19,9. . . .
In -arch 19: some of the areas or phases of the pro3ect "ere completed, but the bulk of the pro3ect "as
#et to be finished. ;# that time some of those pro3ect emplo#ees "hose contracts of emplo#ment e.pired
or "ere about to e.pire because of the completion of portions of the pro3ect "ere offered another
emplo#ment in the remainin! portion of the pro3ect. %etitioner "as amon! those "hose contract "as about
to e.pire, and since his service performance "as satisfactor#, respondent rene"ed his contract of
emplo#ment in 9pril 19:, after %etitioner a!reed to the offer. 9ccordin!l#, a third contract of
emplo#ment for a definite period "as e.ecuted b# and bet"een the %etitioner and the Respondent
"hereb# the %etitioner "as a!ain emplo#ed as *river for 19 months, from -a# 1, 19: to November 6,
19:1, . . .
$his third contract of emplo#ment "as subse7uentl# e.tended for a number of times, the last e.tension
bein! for a period of 6 months, that is, from <ctober 1, 19:= to *ecember 61, 19:=, . . .
$he last e.tension, from <ctober 1, 19:= to *ecember 61, 19:= (9nne. )) covered b# an (9mendment to
the Contract of )mplo#ment "ith a *efinite %eriod,( "as not e.tended an# further because %etitioner had
no more "ork to do in the pro3ect. $his last e.tension "as confirmed b# a notice on November 0:, 19:=
dul# ackno"led!ed b# the %etitioner the ver# ne.t da#, . . .
/ometime in the 0nd "eek of *ecember 19:=, %etitioner applied for (%ersonnel Clearance( "ith
Respondent dated *ecember 9, 19:= and ackno"led!ed havin! received the amount of %6,,9>.0
representin! conversion to cash of unused leave credits and financial assistance. %etitioner also released
Respondent from all obli!ations and5or claims, etc. in a (Release, ?aiver and @uitclaim( . . .
Culled from the records, it appears that on -a# 0, 19:,, petitioner filed before the NLRC, National Capital Re!ion,
*epartment of Labor and )mplo#ment, a Complaint for nonApa#ment of separation pa# and overtime pa#. <n +une 6, 19:,,
%hilnor filed its %osition %aper alle!in!, inter alia, that petitioner "as not ille!all# terminated since the pro3ect for "hich he
"as hired "as completed4 that he "as hired under three distinct contracts of emplo#ment, each of "hich "as for a definite
period, all "ithin the estimated period of -N)) /ta!e 0 %ro3ect, coverin! different phases or areas of the said pro3ect4 that
his "ork "as strictl# confined to the -N)) /ta!e 0 %ro3ect and that he "as never assi!ned to an# other pro3ect of %hilnor4
that he did not render overtime services and that there "as no demand or claim for him for such overtime pa#4 that he si!ned
a (Release, ?aiver and @uitclaim( releasin! %hilnor from all obli!ations and claims4 and that %hilnor's business is to
provide en!ineerin! consultanc# services, includin! supervision of construction services, such that it hires emplo#ees
accordin! to the re7uirements of the pro3ect mannin! schedule of a particular contract.
<n +ul# 0, 19:,, petitioner filed an 9mended Complaint alle!in! that he "as ille!all# dismissed and that he "as not paid
overtime pa# althou!h he "as made to render three hours overtime "ork form -onda# to /aturda# for a period of three
<n +ul# ,, 19:,, petitioner filed his %osition %aper claimin! that he "as ille!all# dismissed since he "as a re!ular emplo#ee
entitled to securit# of tenure4 that he "as not a pro3ect emplo#ee since %hilnor is not en!a!ed in the construction business as
to be covered b# %olic# Instructions No. 04 that the contract of emplo#ment for a definite period e.ecuted bet"een him and
%hilnor is a!ainst public polic# and a clear circumvention of the la" desi!ned merel# to evade an# benefits or liabilities
under the statute4 that his position as driver "as essential, necessar# and desirable to the conduct of the business of %hilnor4
that he rendered overtime "ork until >& p.m. dail# e.cept /unda#s and holida#s and, therefore, he "as entitled to
overtime pa#.
In his Repl# to Respondent's %osition %aper, petitioner claimed that he "as a re!ular emplo#ee pursuant to 9rticle 0,:(c) of
the Labor Code and, thus, he cannot be terminated e.cept for a 3ust cause under 9rticle 0: of the Code4 and that the public
respondent's rulin! in Quiwa vs. Philnor Consultants and Planners, nc.
is not applicable to his case since he "as an
administrative emplo#ee "orkin! as a compan# driver, "hich position still e.ists and is essential to the conduct of the
business of %hilnor even after the completion of his contract of emplo#ment.
%etitioner like"ise avers that the contract of
emplo#ment for a definite period entered into bet"een him and %hilnor "as a plo# to defeat the intent of 9rticle 0: of the
Labor Code.
<n +ul# 0:, 19:,, %hilnor filed its Respondent's /upplemental %osition %aper, alle!in! therein that petitioner "as not a
compan# driver since his 3ob "as to drive the emplo#ees hired to "ork at the -N)) /ta!e 0 %ro3ect to and from the filed
office at /to. *omin!o Interchan!e, %ampan!a4 that the office hours observed in the pro3ect "ere from ,& a.m. to 1&
p.m. -onda#s throu!h /aturda#s4 that %hilnor adopted the polic# of allo"in! certain emplo#ees, not necessaril# the pro3ect
driver, to brin! home pro3ect vehicles to afford fast and free transportation to and from the pro3ect field office considerin!
the distance bet"een the pro3ect site and the emplo#ees' residence, to avoid pro3ect dela#s and inefficienc# due to emplo#ee
tardiness caused b# transportation problem4 that petitioner "as allo"ed to use a pro3ect vehicle "hich he used to pick up
and drop off some ten emplo#ees alon! )pifanio de los /antos 9venue ()*/9), on his "a# home to -arikina, -etro
-anila4 that "hen he "as absent or on leave, another emplo#ee livin! in -etro -anila used the same vehicle in
transportin! the same emplo#ees4 that the time used b# petitioner to and from his residence to the pro3ect site from =&6 a.m.
to ,& a.m. and from 1& p.m. to >& p.m., or about three hours dail#, "as not overtime "ork as he "as merel# en3o#in!
the benefit and convenience of free transportation provided b# %hilnor, other"ise "ithout such vehicle he "ould have used
at least four hours b# usin! public transportation and spent %10. dail# fare4 that in the case of Quiwa vs. Philnor
Consultants and Planners, nc., supra, the NLRC upheld %hilnor's position that @ui"a "as a pro3ect emplo#ee and he "as
not entitled to termination pa# under %olic# Instructions No. 0 since his emplo#ment "as coterminous "ith the completion
of the pro3ect.
<n 9u!ust 0=, 19:,, %hilnor filed its Respondent's Repl#5Comments to Complainant's Re3oinder and Repl#, submittin!
there"ith t"o letters dated +anuar# =, 19:= and 8ebruar# >, 19:=, si!ned b# -N)) /ta!e 0 %ro3ect emplo#ees, includin!
herein petitioner, "here the# asked "hat termination benefits could be !iven to them as the -N)) /ta!e 0 %ro3ect "as
nearin! completion, and %hilnor's letterArepl# dated 8ebruar# 00, 19:= informin! them that the# are not entitled to
termination benefits as the# are contractual5pro3ect emplo#ees.
<n 9u!ust 61, 19:9, Labor 9rbiter *ominador -. CruB rendered a decision
"ith the follo"in! dispositive portion&
?2)R)8<R), in vie" of all the fore!oin! considerations, 3ud!ment is hereb# rendered&
(1) <rderin! the respondent compan# to reinstate the complainant to his former position "ithout loss of
seniorit# ri!hts and other privile!es "ith full back"a!es from the time of his dismissal to his actual
(0) *irectin! the respondent compan# to pa# the complainant overtime pa# for the three e.cess hours of
"ork performed durin! "orkin! da#s from +anuar# 19:6 to *ecember 19:=4 and
(6) *ismissin! all other claims for lack of merit.
/< <R*)R)*.
9ctin! on %hilnor's appeal, the NLRC rendered its assailed decision dated November 19, 199, settin! aside the labor
arbiter's afore7uoted decision and dismissin! petitioner's complaint.
2ence this petition "herein petitioner char!es respondent NLRC "ith !rave abuse of discretion amountin! to lack of
3urisdiction for the follo"in! reasons&
1. $he decision of the labor arbiter, dated 9u!ust 61, 19:9, has alread# become final and e.ecutor#4
0. $he case of Quiwa vs. Philnor Consultants and Planners, nc. is not bindin! nor is it applicable to this case4
6. $he petitioner is a re!ular emplo#ee "ith ei!ht #ears and five months of continuous services for his emplo#er, private
respondent %hilnor4
1. $he claims for overtime services, reinstatement and full back"a!es are valid and meritorious and should have been
sustained4 and
=. $he decision of the labor arbiter should be reinstated as it is more in accord "ith the facts, the la" and evidence.
$he petition is devoid of merit.
1. %etitioner 7uestions the 3urisdiction of respondent NLRC in takin! co!niBance of the appeal filed b# %hilnor in spite of
the latter's failure to file a supersedeas bond "ithin ten da#s from receipt of the labor arbiter's decision, b# reason of "hich
the appeal should be deemed to have been filed out of time. It "ill be noted, ho"ever, that %hilnor "as able to file a bond
althou!h it "as made be#ond the 1Ada# re!lementar# period.
?hile it is true that the pa#ment of the supersedeas bond is an essential re7uirement in the perfection of an appeal, ho"ever,
"here the fee had been paid althou!h pa#ment "as dela#ed, the broader interests of 3ustice and the desired ob3ective of
resolvin! controversies on the merits demands that the appeal be !iven due course. ;esides, it "as "ithin the inherent
po"er of the NLRC to have allo"ed late pa#ment of the bond, considerin! that the aforesaid decision of the labor arbiter
"as received b# private respondent on <ctober 6, 19:9 and its appeal "as dul# filed on <ctober 16, 19:9. 2o"ever, said
decision did not state the amount a"arded as back"a!es and overtime pa#, hence the amount of the supersedeas bond could
not be determined. It "as onl# in the order of the NLRC of 8ebruar# 1>, 199 that the amount of the supersedeas bond "as
specified and "hich bond, after an e.tension !ranted b# the NLRC, "as timel# filed b# private respondent.
-oreover, as provided b# 9rticle 001 of the Labor Code, (in an# proceedin! before the Commission or an# of the Labor
9rbiters, the rules of evidence prevailin! in Courts of la" or e7uit# shall not be controllin! and it is the spirit and intention
of this Code that the Commission and its members and the Labor 9rbiters shall use ever# and all reasonable means to
ascertain the facts in each case speedil# and ob3ectivel# "ithout re!ard to technicalities of la" or procedure, all in the
interest of due process. 8 8inall#, the issue of timeliness of the appeal bein! an entirel# ne" and unpleaded matter in the
proceedin!s belo" it ma# not no" be raised for the first time before this Court.
0. %etitioner postulates that as a re!ular emplo#ee, he is entitled to securit# of tenure, hence he cannot be terminated "ithout
cause. %rivate respondent %hilnor believes other"ise and asserts that petitioner is merel# a pro3ect emplo#ee "ho "as
terminated upon the completion of the pro3ect for "hich he "as emplo#ed.
In holdin! that petitioner is a re!ular emplo#ee, the labor arbiter found that&
. . . $here is no 7uestion that the complainant "as emplo#ed as driver in the respondent compan#
continuousl# from +ul# 1, 19,, to *ecember 61, 19:= under various contracts of emplo#ment. /imilarl#,
there is no dispute that respondent %hilnor Consultant C %lanner, Inc., as its business name connotes, has
been en!a!ed in providin! to its client(e)le en!ineerin! consultanc# services. $he record sho"s that "hile
the different labor contracts e.ecuted b# the parties stipulated definite periods of en!a!in! the services of
the complainant, #et the latter "as suffered to continue performin! his 3ob upon the e.piration of one
contract and the rene"al of another. Dnder these circumstances, the complaint has obtained the status of
re!ular emplo#ee, it appearin! that he has "orked "ithout fail for almost ei!ht #ears, a fraction of si.
months considered as one "hole #ear, and that his assi!ned task as driver "as necessar# and desirable in
the usual trade5business of the respondent emplo#er. 9ssumin! to be true, as spelled out in the
emplo#ment contract, that the )mplo#er has no (continuin! need for the services of the )mplo#e(e)
be#ond the termination date of this contract and that the )mplo#ee's services shall automaticall#, and
"ithout notice, terminate upon completion of the above specified phase of the pro3ect,( still "e cannot see
our "a# clear "h# the complainant "as hired and his services en!a!ed contract after contract strai!ht
from 19,, to 19:= "hich, to our considered vie", lends credence to the contention that he "orked as
re!ular driver ferr#in! earl# in the mornin! office personnel to the compan# main office in %ampan!a and
brin!in! back late in the afternoon to -anila, and drivin! compan# e.ecutives for inspection of
construction "orkers to the 3obsites. 9ll told, "e believe that the complainant, under the environmental
facts obtainin! in the case at bar, is a re!ular emplo#ee, the provisions of "ritten a!reement to the
contrar# not"ithstandin! and re!ardless of the oral understandin! of the parties . . .
<n the other hand, respondent NLRC declared that, as bet"een the uncorroborated and unsupported assertions of petitioners
and those of private respondent "hich are supported b# documents, !reater credence should be !iven the latter. It further
held that&
Complainant "as hired in a specific pro3ect or undertakin! as driver. ?hile such pro3ect "as still onA!oin!
he "as hired several times "ith his emplo#ment period fi.ed ever# time his contract "as rene"ed. 9t the
completion of the specific pro3ect or undertakin! his emplo#ment contract "as not rene"ed.
?e reiterate our rulin! in the case of !Quiwa" vs. Philnor Consultants and Planners, nc., NLRC R9; III
=A1,6:A:1, it is bein! applicable in this case, vi#.&
. . . ?hile it is true that the activities performed b# him "ere necessar# or desirable in
the usual business or trade of the respondent as consultants, planners, contractor and
"hile it is also true that the duration of his emplo#ment "as for a period of about seven
#ears, these circumstances did not make him a
re!ular emplo#ee in contemplation of 9rticle 0:1 of (the) Labor Code. . . .
<ur rulin! in $andoval $hip%ards, nc. vs. &ational Labor 'elations Commission, et al.
is applicable to the case at bar.
?e hold that private respondents "ere pro3ect emplo#ees "hose "ork "as coterminous "ith the pro3ect or
"hich the# "ere hired. %ro3ect emplo#ees, as distin!uished from re!ular or nonApro3ect emplo#ees, are
mentioned in section 0:1 of the Labor Code as those ("here the emplo#ment has been fi.ed for a specific
pro3ect or undertakin! the completion or termination of "hich has been determined at the time of the
en!a!ement of the emplo#ee.(
%olic# Instructions No. 0 of the /ecretar# of Labor, "hich "as issued to stabiliBe emplo#erAemplo#ee
relations in the construction industr#, provides&
%ro3ect emplo#ees are those emplo#ed in connection "ith a particular construction
pro3ect. NonApro3ect (re!ular) emplo#ees are those emplo#ed b# a construction compan#
"ithout reference to an# particular pro3ect.
%ro3ect emplo#ees are not entitled to termination pa# if the# are terminated as a result of
the completion of the pro3ect or an# phase thereof in "hich the# are emplo#ed,
re!ardless of the number of pro3ects in "hich the# have been emplo#ed b# a particular
construction compan#. -oreover, the compan# is not re7uired to obtain clearance from
the /ecretar# of Labor in connection "ith such termination.
$he petitioner cited three of its o"n cases "herein the National Labor Relations Commission, *eput#
-inister of Labor and )mplo#ment Incion! and the *irector of the National Capital Re!ion held that the
la#off of its pro3ect emplo#ees "as la"ful. *eput# -inister Incion! in $8D Case No. 1=6, In Re
/andoval /hip#ards, Inc. 9pplication for Clearance to $erminate )mplo#ees, rendered the follo"in!
rulin! on 8ebruar# 0>, 19,94
?e feel that there is merit in the contention of the applicant corporation. $o our mind,
the emplo#ment of the emplo#ees concerned "ere fi.ed for a specific pro3ect or
undertakin!. (or the nature of the business the corporation is en)a)ed into is one which
will not allow it to emplo% wor*ers for an indefinite period.
It is si!nificant to note that the corporation does not construct vessels for sale or
other"ise "hich "ill demand continuous productions of ships and "ill need permanent
or re!ular "orkers. It merel# accepts contracts for shipbuildin! or for repair of vessels
form third parties and, onl#, on occasion "hen it has "ork contract of this nature that it
hires "orkers to do the 3ob "hich, needless to sa#, lasts onl# for less than a #ear or
$he completion of their "ork or pro3ect automaticall# terminates their emplo#ment, in
"hich case, the emplo#er is, under the la", onl# obli!ed to render a report on the
termination of the emplo#ment. (169A11, 'ollo of E.R. No. >=>:9) ()mphasis supplied)
In Carta)enas, et al. vs. 'oma)o +lectric Compan%, nc., et al.,
"e like"ise held that&
9s an electrical contractor, the private respondent depends for its business on the contracts it is able to
obtain from real estate developers and builders of buildin!s. /ince its "ork depends on the availabilit# of
such contracts or (pro3ects,( necessaril# the duration of the emplo#ment's of this "ork force is not
permanent but coAterminus "ith the pro3ects to "hich the# are assi!ned and from "hose pa#rolls the# are
paid. t would be extremel% burdensome for their emplo%er who, li*e them, depends on the availabilit% of
pro,ects, if it would have to carr% them as permanent emplo%ees and pa% them wa)es even if there are no
pro,ects for them to wor* on. ()mphasis supplied.)
It must be stressed herein that althou!h petitioner "orked "ith %hilnor as a driver for ei!ht #ears, the fact that his services
"ere rendered onl# for a particular pro3ect "hich took that same period of time to complete cate!oriBes him as a pro3ect
emplo#ee. %etitioner "as emplo#ed for one specific pro3ect.
9 nonApro3ect emplo#ee is different in that the emplo#ee is hired for more than one pro3ect. 9 nonApro3ect emplo#ee, vis-a-
vis a pro3ect emplo#ee, is best e.emplified in the case of (e)urin, et al. vs. &ational Labor 'elations Commission, et al.
"herein four of the petitioners had been "orkin! "ith the compan# for nine #ears, one for ei!ht #ears, another for si. #ears,
the shortest term bein! three #ears. In holdin! that petitioners are re!ular emplo#ees, this Court therein e.plained&
Considerin! the nature of the "ork of petitioners, that of carpenter, laborer or mason, their respective 3obs
"ould actuall# be continuous and onA!oin!. ?hen a pro3ect to "hich the# are individuall# assi!ned is
completed, the# "ould be assi!ned to the ne.t pro3ect or a phase thereof. In other "ords, the# belon!ed to
a ("ork pool( from "hich the compan# "ould dra" "orkers for assi!nment to other pro3ects at its
discretion. $he# are, therefore, actuall# (nonApro3ect emplo#ees.(
8rom the fore!oin!, it is clear that petitioner is a pro3ect emplo#ee considerin! that he does not belon! to a ("ork pool(
from "hich the compan# "ould dra" "orkers for assi!nment to other pro3ects at its discretion. It is like"ise apparent from
the facts obtainin! herein that petitioner "as utiliBed onl# for one particular pro3ect, the -N)) /ta!e 0 %ro3ect of
respondent compan#. 2ence, the termination of herein petitioner is valid b# reason of the completion of the pro3ect and the
e.piration of his emplo#ment contract.
6. 9nent the claim for overtime compensation, "e hold that petitioner is entitled to the same. $he fact that he picks up
emplo#ees of %hilnor at certain specified points alon! )*/9 in !oin! to the pro3ect site and drops them off at the same
points on his "a# back from the field office !oin! home to -arikina, -etro -anila is not merel# incidental to petitioner's
3ob as a driver. <n the contrar#, said transportation arran!ement had been adopted, not so much for the convenience of the
emplo#ees, but primaril# for the benefit of the emplo#er, herein private respondent. $his fact is inevitabl# deducible from
the -emorandum of respondent compan#&
$he herein Respondent resorted to the above transport arran!ement because from its previous pro3ect
construction supervision e.periences, Respondent found out that pro3ect dela#s and inefficiencies resulted
from emplo#ees' tardiness4 and that the problem of tardiness, in turn, "as a!!ravated b# transportation
problems, "hich varied in de!rees in proportion to the distance bet"een the pro3ect site and the
emplo#ees' residence. In vie" of this lesson from e.perience, and as a practical, if e.pensive, solution to
emplo#ees' tardiness and its concomitant problems, Respondent adopted the polic# of allo"in! certain
emplo#ees F not necessaril# pro3ect drivers F to brin! home pro3ect vehicles, so that emplo#ees could
be afforded fast, convenient and free transportation to and from the pro3ect field office. . . .
%rivate respondent does not hesitate to admit that it is usuall# the pro3ect driver "ho is tasked "ith pickin! up or droppin!
off his fello" emplo#ees. %roof thereof is the undisputed fact that "hen petitioner is absent, another driver is supposed to
replace him and drive the vehicle and like"ise pick up and5or drop off the other emplo#ees at the desi!nated points on
)*/9. If drivin! these emplo#ees to and from the pro3ect site is not reall# part of petitioner's 3ob, then there "ould have
been no need to find a replacement driver to fetch these emplo#ees. ;ut since the assi!ned task of fetchin! and deliverin!
emplo#ees is indispensable and conse7uentl# mandator#, then the time re7uired of and used b# petitioner in !oin! from his
residence to the field office and back, that is, from =&6 a.m. to ,& a.m. and from 1& p.m. to around >& p.m., "hich the
labor arbiter rounded off as avera!in! three hours each "orkin! da#, should be paid as overtime "ork. @uintessentiall#,
petitioner should be !iven overtime pa# for the three e.cess hours of "ork performed durin! "orkin! da#s from +anuar#,
19:6 to *ecember, 19:=.
?2)R)8<R), sub3ect to the modification re!ardin! the a"ard of overtime pa# to herein petitioner, the decision appealed
from is 988IR-)* in all other respects.
/< <R*)R)*.
G.R. No. 1628
."/ruary 12, 2007
.AR EAST AGRIC*LT*RAL S*))L0, INC. an$1or ALE2ANDER *0, %etitioners,
* ) C I / I < N
3*IS*BING, J.:
;efore us is a petition for revie" on certiorari assailin! the *ecision
dated /eptember 6, 06 of the Court of 9ppeals in
C9AE.R. /% No. ,>19> and its Resolution
dated -arch 1=, 01 den#in! the motion for reconsideration. $he appellate
court had reversed the *ecision
dated <ctober 1=, 00 of the National Labor Relations Commission (NLRC) settin! aside
the *ecision
dated +une 0,, 01 of the Labor 9rbiter.
%etitioner 8ar )ast 9!ricultural /uppl#, Inc. (8ar )ast) hired on -arch 1, 199> private respondent +imm# Lebati7ue as truck
driver "ith a dail# "a!e of %006.=. 2e delivered animal feeds to the compan#Gs clients.
<n +anuar# 01, 0, Lebati7ue complained of nonpa#ment of overtime "ork particularl# on +anuar# 00, 0, "hen he
"as re7uired to make a second deliver# in Novaliches, @ueBon Cit#. $hat same da#, -anuel D#, brother of 8ar )astGs
Eeneral -ana!er and petitioner 9le.ander D#, suspended Lebati7ue apparentl# for ille!al use of compan# vehicle. )ven so,
Lebati7ue reported for "ork the ne.t da# but he "as prohibited from enterin! the compan# premises.
<n +anuar# 0>, 0, Lebati7ue sou!ht the assistance of the *epartment of Labor and )mplo#ment (*<L)) %ublic
9ssistance and Complaints Dnit concernin! the nonpa#ment of his overtime pa#. 9ccordin! to Lebati7ue, t"o da#s later, he
received a tele!ram from petitioners re7uirin! him to report for "ork. ?hen he did the ne.t da#, +anuar# 09, 0,
9le.ander asked him "h# he "as claimin! overtime pa#. Lebati7ue e.plained that he had never been paid for overtime
"ork since he started "orkin! for the compan#. 2e also told 9le.ander that -anuel had fired him. 9fter talkin! to -anuel,
9le.ander terminated Lebati7ue and told him to look for another 3ob.
<n -arch 0, 0, Lebati7ue filed a complaint for ille!al dismissal and nonpa#ment of overtime pa#. $he Labor 9rbiter
found that Lebati7ue "as ille!all# dismissed, and ordered his reinstatement and the pa#ment of his full back "a!es, 16th
month pa#, service incentive leave pa#, and overtime pa#. $he dispositive portion of the decision is 7uoted herein in full, as
?2)R)8<R), "e find the termination of complainant ille!al. 2e should thus be ordered reinstated "ith full back"a!es.
2e is like"ise ordered paid his 16th month pa#, service incentive leave pa# and overtime pa# as computed. b
/< <R*)R)*.

<n appeal, the NLRC reversed the Labor 9rbiter and dismissed the complaint for lack of merit. $he NLRC held that there
"as no dismissal to speak of since Lebati7ue "as merel# suspended. 8urther, it found that Lebati7ue "as a field personnel,
hence, not entitled to overtime pa# and service incentive leave pa#. Lebati7ue sou!ht reconsideration but "as denied.
9!!rieved, Lebati7ue filed a petition for certiorari "ith the Court of
$he Court of 9ppeals, in reversin! the NLRC decision, reasoned that Lebati7ue "as suspended on +anuar# 01, 0 but "as
ille!all# dismissed on +anuar# 09, 0 "hen 9le.ander told him to look for another 3ob. It also found that Lebati7ue "as
not a field personnel and therefore entitled to pa#ment of overtime pa#, service incentive leave pa#, and 16th month pa#.
It reinstated the decision of the Labor 9rbiter as follo"s&
4HERE.ORE, premises considered, the decision of the NLRC dated 0, *ecember 00 is hereb# RE5ERSED and the
Labor 9rbiterGs decision dated 0, +une 01 REINSTATED.
/< <R*)R)*.
%etitioners moved for reconsideration but it "as denied.
2ence, the instant petition "herein petitioners assi!n the follo"in! errors&
$2) C<DR$ <8 9%%)9L/ H )RR)* IN R)I)R/INE $2) *)CI/I<N <8 $2) N9$I<N9L L9;<R
R)L9$I<N/ C<--I//I<N *9$)* 1= <C$<;)R 00 9N* IN RDLINE $29$ $2) %RII9$)
R)/%<N*)N$ ?9/ ILL)E9LLJ *I/-I//)*.
$2) C<DR$ <8 9%%)9L/ H )RR)* IN R)I)R/INE $2) *)CI/I<N <8 $2) N9$I<N9L L9;<R
R)L9$I<N/ C<--I//I<N *9$)* 1= <C$<;)R 00 9N* IN RDLINE $29$ %RII9$)
R)/%<N*)N$ I/ N<$ 9 8I)L* %)R/<NN)L 9N* $2)RK)L8<R) )N$I$L)* $< <I)R$I-) %9J
9N* /)RIIC) INC)N$II) L)9I) %9J.
$2) C<DR$ <8 9%%)9L/ H )RR)* IN N<$ *I/-I//INE $2) %)$I$I<N 8<R C)R$I<R9RI 8<R
89ILDR) <8 %RII9$) R)/%<N*)N$ $< 9$$9C2 C)R$I8I)* $RD) C<%I)/ <8 $2)
@D)/$I<N)* *)CI/I<N 9N* R)/<LD$I<N <8 $2) %D;LIC R)/%<N*)N$.
/impl# stated, the principal issues in this case are& (1) "hether Lebati7ue "as ille!all# dismissed4 and (0) "hether Lebati7ue
"as a field personnel, not entitled to overtime pa#.
%etitioners contend that, (1) Lebati7ue "as not dismissed from service but merel# suspended for a da# due to violation of
compan# rules4 (0) Lebati7ue "as not barred from enterin! the compan# premises since he never reported back to "ork4 and
(6) Lebati7ue is estopped from claimin! that he "as ille!all# dismissed since his complaint before the *<L) "as onl# on
the nonpa#ment of his overtime pa#.
9lso, petitioners maintain that Lebati7ue, as a driver, is not entitled to overtime pa# since he is a field personnel "hose time
outside the compan# premises cannot be determined "ith reasonable certaint#. 9ccordin! to petitioners, the drivers do not
observe re!ular "orkin! hours unlike the other office emplo#ees. $he drivers ma# report earl# in the mornin! to make their
deliveries or in the afternoon, dependin! on the production of animal feeds and the traffic conditions. %etitioners also aver
that Lebati7ue "orked for less than ei!ht hours a da#.
Lebati7ue for his part insists that he "as ille!all# dismissed and "as not merel# suspended. 2e ar!ues that he neither
refused to "ork nor abandoned his 3ob. 2e further contends that abandonment of "ork is inconsistent "ith the filin! of a
complaint for ille!al dismissal. 2e also claims that he is not a field personnel, thus, he is entitled to overtime pa# and
service incentive leave pa#.
9fter consideration of the submission of the parties, "e find that the petition lacks merit. ?e are in a!reement "ith the
decision of the Court of 9ppeals sustainin! that of the Labor 9rbiter.
It is "ell settled that in cases of ille!al dismissal, the burden is on the emplo#er to prove that the termination "as for a valid
In this case, petitioners failed to dischar!e such burden. %etitioners aver that Lebati7ue "as merel# suspended for
one da# but he abandoned his "ork thereafter. $o constitute abandonment as a 3ust cause for dismissal, there must be& (a)
absence "ithout 3ustifiable reason4 and (b) a clear intention, as manifested b# some overt act, to sever the emplo#erA
emplo#ee relationship.

$he records sho" that petitioners failed to prove that Lebati7ue abandoned his 3ob. Nor "as there a sho"in! of a clear
intention on the part of Lebati7ue to sever the emplo#erAemplo#ee relationship. ?hen Lebati7ue "as verball# told b#
9le.ander D#, the compan#Gs Eeneral -ana!er, to look for another 3ob, Lebati7ue "as in effect dismissed. )ven assumin!
earlier he "as merel# suspended for ille!al use of compan# vehicle, the records do not sho" that he "as afforded the
opportunit# to e.plain his side. It is clear also from the se7uence of the events leadin! to Lebati7ueGs dismissal that it "as
Lebati7ueGs complaint for nonpa#ment of his overtime pa# that provoked the mana!ement to dismiss him, on the erroneous
premise that a truck driver is a field personnel not entitled to overtime pa#.
9n emplo#ee "ho takes steps to protest his la#off cannot b# an# stretch of ima!ination be said to have abandoned his "ork
and the filin! of the complaint is proof enou!h of his desire to return to "ork, thus ne!atin! an# su!!estion of
9 contrar# notion "ould not onl# be illo!ical but also absurd.
It is immaterial that Lebati7ue had filed a complaint for nonpa#ment of overtime pa# the da# he "as suspended b#
mana!ementGs unilateral act. ?hat matters is that he filed the complaint for ille!al dismissal on -arch 0, 0, after he
"as told not to report for "ork, and his filin! "as "ell "ithin the prescriptive period allo"ed under the la".
<n the second issue, 9rticle :0 of the Labor Code is decisive on the 7uestion of "ho are referred to b# the term (field
personnel.( It provides, as follo"s&
ART. 82. Coverage. A $he provisions of this title K?orkin! Conditions and Rest %eriodsL shall appl# to emplo#ees in all
establishments and undertakin!s "hether for profit or not, but not to !overnment emplo#ees, mana!erial emplo#ees, field
personnel, members of the famil# of the emplo#er "ho are dependent on him for support, domestic helpers, persons in the
personal service of another, and "orkers "ho are paid b# results as determined b# the /ecretar# of Labor in appropriate
. . . .
(8ield personnel( shall refer to nonAa!ricultural emplo#ees "ho re!ularl# perform their duties a"a# from the principal place
of business or branch office of the emplo#er and "hose actual hours of "ork in the field cannot be determined "ith
reasonable certaint#.
In Auto /us 0ransport $%stems, nc. v. /autista,
this Court emphasiBed that the definition of a (field personnel( is not
merel# concerned "ith the location "here the emplo#ee re!ularl# performs his duties but also "ith the fact that the
emplo#eeGs performance is unsupervised b# the emplo#er. ?e held that field personnel are those "ho re!ularl# perform
their duties a"a# from the principal place of business of the emplo#er and "hose actual hours of "ork in the field cannot be
determined "ith reasonable certaint#. $hus, in order to determine "hether an emplo#ee is a field emplo#ee, it is also
necessar# to ascertain if actual hours of "ork in the field can be determined "ith reasonable certaint# b# the emplo#er. In so
doin!, an in7uir# must be made as to "hether or not the emplo#eeGs time and performance are constantl# supervised b# the
9s correctl# found b# the Court of 9ppeals, Lebati7ue is not a field personnel as defined above for the follo"in! reasons&
(1) compan# drivers, includin! Lebati7ue, are directed to deliver the !oods at a specified time and place4 (0) the# are not
!iven the discretion to solicit, select and contact prospective clients4 and (6) 8ar )ast issued a directive that compan# drivers
should sta# at the clientGs premises durin! truckAban hours "hich is from =& to 9& a.m. and =& to 9& p.m.
petitioners admit that the drivers can report earl# in the mornin!, to make their deliveries, or in the afternoon, dependin! on
the production of animal feeds.
*rivers, like Lebati7ue, are under the control and supervision of mana!ement officers.
Lebati7ue, therefore, is a re!ular emplo#ee "hose tasks are usuall# necessar# and desirable to the usual trade and business
of the compan#. $hus, he is entitled to the benefits accorded to re!ular emplo#ees of 8ar )ast, includin! overtime pa# and
service incentive leave pa#.
Note that all mone# claims arisin! from an emplo#erAemplo#ee relationship shall be filed "ithin three #ears from the time
the cause of action accrued4 other"ise, the# shall be forever barred.
8urther, if it is established that the benefits bein!
claimed have been "ithheld from the emplo#ee for a period lon!er than three #ears, the amount pertainin! to the period
be#ond the threeA#ear prescriptive period is therefore barred b# prescription. $he amount that can onl# be demanded b# the
a!!rieved emplo#ee shall be limited to the amount of the benefits "ithheld "ithin three #ears before the filin! of the

Lebati7ue timel# filed his claim for service incentive leave pa#, considerin! that in this situation, the prescriptive period
commences at the time he "as terminated.
<n the other hand, his claim re!ardin! nonpa#ment of overtime pa# since he
"as hired in -arch 199> is a different matter. In the case of overtime pa#, he can onl# demand for the overtime pa#
"ithheld for the period "ithin three #ears precedin! the filin! of the complaint on -arch 0, 0. 2o"ever, "e find
insufficient the selected time records presented b# petitioners to compute properl# his overtime pa#. $he Labor 9rbiter
should have re7uired petitioners to present the dail# time records, pa#roll, or other documents in mana!ementGs control to
determine the correct overtime pa# due Lebati7ue.
4HERE.ORE, the petition is DENIED for lack of merit. $he *ecision dated /eptember 6, 06 of the Court of 9ppeals
in C9AE.R. /% No. ,>19> and its Resolution dated -arch 1=, 01 are A..IRED 6%78 ODI.ICATION to the effect
that the case is hereb# REANDED to the Labor 9rbiter for further proceedin!s to determine the e.act amount of
overtime pa# and other monetar# benefits due +imm# Lebati7ue "hich herein petitioners should pa# "ithout further dela#.
Costs a!ainst petitioners.
)CL S8%99%n: )8%;%99%n"' &'. NLRC
GR NO. 1-+0+1 D"# 2006

9D/$RI9A-9R$IN)M, 1.2

;efore the Court is a petition for revie" on certiorari under Rule 1= of the Rules of Court assailin! the *ecisionK1L
of the Court of 9ppeals (C9) dated *ecember 1:, 01 in C9AE.R. /% No. =99,>, "hich affirmed the *ecision of the
National Labor Relations Commission (NLRC) dated -arch 00, 0 in NLRC NCR C9 No. 1:10A994 and the
Resolution of the C9 dated 9pril 1, 00, den#in! petitionersG motion for reconsideration.K0L

$he facts of the case, as found b# the C9, are as follo"s&
In 9pril 199>, Rusel "as emplo#ed as E%59; seaman b# mannin! a!enc#, %CL /hippin! %hilippines, Inc. (%CL /hippin!)
for and in behalf of its forei!n principal, DA-in! -arine $ransport Corporation (DA-in! -arine). Rusel thereb# 3oined the
vessel -I Cemte. Eeneral (-I Cemte.) for the contract period of t"elve (10) months "ith a basic monthl# salar# of
D/N1., livin! allo"ance of D/N11., fi.ed overtime rate of D/N10. per month, vacation leave "ith pa# of
D/N1. per month and special allo"ance of D/N1,=..

<n +ul# 1>, 199>, "hile Rusel "as cleanin! the vesselGs kitchen, he slipped, and as a conse7uence thereof, he suffered a
broken and5or sprained ankle on his left foot. 9 re7uest for medical e.amination "as flatl# denied b# the captain of the
vessel. <n 9u!ust 16, 199>, feelin! an unbearable pain in his ankle, Rusel 3umped off the vessel usin! a life 3acket and
s"am to shore. 2e "as brou!ht to a hospital "here he "as confined for ei!ht (:) da#s.

<n 9u!ust 00, 199>, a vesselGs a!ent fetched Rusel from the hospital and "as re7uired to board a plane bound for the

<n /eptember 0>, 199>, Rusel filed a complaint for ille!al dismissal, nonApa#ment of "a!es, overtime pa#, claim for
medical benefits, sick leave pa# and dama!es a!ainst %CL /hippin! and DA-in! -arine before the arbitration branch of the
NLRC. In their ans"er, the latter alle!ed that Rusel deserted his emplo#ment b# 3umpin! off the vessel.

<n +ul# 01, 199:, the labor arbiter rendered his decision, the dispositive portion of "hich reads as follo"s&

?herefore, above premises dul# considered "e find the respondent liable for un3ust
repatriation of the complainant.

9ccordin!l#, the follo"in! a"ard is hereb# ad3ud!ed a!ainst the respondent&

1. $he amount of N0,>0=. or its peso e7uivalent at the time of pa#ment representin!
three (6) months salar# of the complainant due to his ille!al dismissal.

0. $he amount of N1,>. or its peso e7uivalent, representin! sick "a!e benefits.

6. $he amount of N==. or its peso e7uivalent, representin! livin! allo"ance,
overtime pa# and special allo"ance for t"o (0) months.

1. $he amount of N>11.>> or its peso e7uivalent, representin! unpaid "a!es from
9u!ust 11 to 00, 199>.

=. 9ttorne#Gs fees e7uivalent to 1O of the total monetar# a"ard.

$he rest of the claims are dismissed for lack of merit.

/< <R*)R)*.K6L

9!!rieved b# the *ecision of the Labor 9rbiter, herein petitioners appealed to the NLRC. In its *ecision dated -arch 00,
0, the NLRC affirmed the findin!s of the Labor 9rbiter but modified the appealed *ecision, disposin! as follo"s&

?2)R)8<R), premises considered, the assailed decision is as it is hereb# ordered -<*I8I)* in that the amount
representin! three months salar# of the complainant due to his ille!al dismissal is reduced to D/N1,>0.. 8urther the
a"ard of sick "a!e benefit is deleted.

9ll other dispositions are 988IR-)*.

/< <R*)R)*.K1L

%etitioners filed a -otion for Reconsideration but the NLRC denied the same in its *ecision of -a# 6, 0.K=L

%etitioners filed a petition for certiorari "ith the C9.K>L In its *ecision dated *ecember 1:, 01, the C9 dismissed
the petition and affirmed the NLRC *ecision.K,L

%etitioners filed a -otion for Reconsideration but it "as denied b# the C9 in its Resolution dated 9pril 1, 00.K:L

2ence, the instant petition "ith the follo"in! assi!nment of errors&

I. $he Court of 9ppeals erred in rulin! that private respondent "as ille!all# dismissed from emplo#ment.

. . . .

II. Like"ise, the Court of 9ppeals erred in not upholdin! petitionersG ri!ht to preAterminate private respondentGs
. . . .

III. $he private respondent is not entitled to other mone# claims, particularl# as to the a"ard of attorne#Gs fees.K9L

9s to their first assi!ned error, petitioners contend that the C9 erred in affirmin! the findin!s of the NLRC that RuselGs act
of 3umpin! ship does not establish an# intent on his part to abandon his 3ob and never return. %etitioners ar!ue that RuselGs
ver# act of 3umpin! from the vessel and s"immin! to shore is evidence of hi!hest de!ree that he has no intention of
returnin! to his 3ob. %etitioners further contend that if Rusel "as indeed sufferin! from unbearable and unmiti!ated pain, it
is unlikel# that he is able to s"im t"o (0) nautical miles, "hich is the distance bet"een their ship and the shore, considerin!
that he needed to use his limbs in s"immin!. %etitioners further assert that it is error on the part of the C9 to disre!ard the
entries contained in the lo!book and in the -arine Note %rotest evidencin! RuselsG offense of desertion because "hile these
pieces of evidence "ere belatedl# presented, the settled rule is that additional evidence ma# be admitted on appeal in labor
cases. %etitioners also contend that RuselGs act of desertion is a !rave and serious offense and considerin! the nature and
situs of emplo#ment as "ell as the nationalit# of the emplo#er, the t"in re7uirements of notice and hearin! before an
emplo#ee can be validl# terminated ma# be dispensed "ith.

9s to their second assi!ned error, petitioners contend that assumin!, for the sake of ar!ument, that Rusel is not !uilt# of
desertion, the# invoked the alternative defense that the termination of his emplo#ment "as validl# made pursuant to
petitionersG ri!ht to e.ercise their prero!ative to preAterminate such emplo#ment in accordance "ith /ection 19(C) of the
/tandard $erms and Conditions Eovernin! the )mplo#ment of 8ilipino /eafarers <nA;oard <ceanAEoin! Iessels, "hich
provision "as incorporated in RuselGs Contract of )mplo#ment "ith petitioners. %etitioners assert that despite the fact that
this issue "as raised before the C9, the appellate court failed to resolve the same.

9nent the last assi!ned error, petitioners ar!ue that it is error on the part of the C9 to affirm the a"ard of livin! allo"ance,
overtime pa#, vacation pa# and special allo"ance for t"o months because Rusel failed to submit substantial evidence to
prove that he is entitled to these a"ards. %etitioners further ar!ue that these mone# claims, particularl# the claim for livin!
allo"ance, should not be !ranted because the# partake of the nature of earned benefits for services rendered b# a seafarer.
%etitioners also contend that the balance of RuselGs "a!es from 9u!ust 11A00, 199> should be applied for the pa#ment of
the costs of his repatriation, considerin! that under /ection 19()) of the /tandard $erms and Conditions Eovernin! the
)mplo#ment of 8ilipino /eafarers <nA;oard <ceanAEoin! Iessels, "hen a seafarer is dischar!ed for an# 3ust cause, the
emplo#er shall have the ri!ht to recover the costs of his replacement and repatriation from the seafarerGs "a!es and other
earnin!s. Lastl#, petitioners ar!ue that the a"ard of attorne#Gs fees should be deleted because there is nothin! in the
decision of the Labor 9rbiter or the NLRC "hich states the reason "h# attorne#Gs fees are bein! a"arded.

In his Comment, private respondent contends that petitioners are raisin! issues of fact "hich have alread# been resolved b#
the Labor 9rbiter, NLRC and the C9. %rivate respondent ar!ues that, aside from the fact that the issues raised "ere alread#
decided b# three tribunals a!ainst petitionersG favor, it is a settled rule that onl# 7uestions of la" ma# be raised in a petition
for revie" on certiorari under Rule 1= of the Rules of Court. ?hile there are e.ceptions to this rule, private respondent
contends that the instant case does not fall under an# of these e.ceptions. %rivate respondent asserts that petitioners failed
to substantiate their claim that the former is !uilt# of desertion. %rivate respondent further contends that the ri!ht to due
process is available to local and overseas "orkers alike, pursuant to the provisions of the Constitution on labor and e7ual
protection as "ell as the declared polic# contained in the Labor Code. %rivate respondent ar!ues that petitionersG act of
invokin! the provisions of /ection 19(C) of the %<)9 Contract as an alternative defense is misplaced and is inconsistent
"ith their primar# defense that private respondent "as dismissed on the !round of desertion. 9s to the a"ard of attorne#Gs
fees, private respondent contends that since petitionersG act compelled the former to incur e.penses to protect his interest
and enforce his la"ful claims, and because petitioners acted in !ross and evident bad faith in refusin! to satisf# private
respondentGs la"ful claims, it is onl# proper that attorne#Gs fees be a"arded in favor of the latter. 9nent the other monetar#
a"ards, private respondent ar!ues that these a"ards are all premised on the findin!s of the Labor 9rbiter, NLRC and the C9
that private respondentGs dismissal "as improper and ille!al.

$he Court finds the petition "ithout merit.

9nent the first assi!ned error, it is a settled rule that under Rule 1= of the Rules of Court, onl# 7uestions of la" ma# be
raised in this Court.K1L +udicial revie" b# this Court does not e.tend to a reAevaluation of the sufficienc# of the evidence
upon "hich the proper labor tribunal has based its determination.K11L 8irm is the doctrine that this Court is not a trier of
facts, and this applies "ith !reater force in labor cases.K10L 8actual issues ma# be considered and resolved onl# "hen the
findin!s of facts and conclusions of la" of the Labor 9rbiter are inconsistent "ith those of the NLRC and the C9.K16L $he
reason for this is that the 7uasiA3udicial a!encies, like the 9rbitration ;oard and the NLRC, have ac7uired a uni7ue e.pertise
because their 3urisdiction are confined to specific matters.K11L In the present case, the 7uestion of "hether private
respondent is !uilt# of desertion is factual. $he Labor 9rbiter, NLRC and the C9 are unanimous in their findin!s that
private respondent is not !uilt# of desertion and that he has been ille!all# terminated from his emplo#ment. 9fter a revie"
of the records of the instant case, this Court finds no co!ent reason to depart from the findin!s of these tribunals.

%etitioners assert that the entries in the lo!book of 34 Cemtex 5eneralK1=L and in the -arine Note %rotestK1>L "hich the#
submitted to the NLRC confirm the fact that private respondent abandoned the vessel in "hich he "as assi!ned. 2o"ever,
the !enuineness of the -arine Note %rotest as "ell as the entries in the lo!book are put in doubt because aside from the fact
that the# "ere presented onl# durin! petitionersG -otion for Reconsideration filed "ith the NLRC, both the -arine Note
%rotest and the entr# in the lo!book "hich "ere prepared b# the officers of the vessel "ere neither notariBed nor
authenticated b# the proper authorities. -oreover, a readin! of these entries simpl# sho"s that private respondent "as
presumed to have deserted his post on the sole basis that he "as found missin! "hile the 34 Cemtex 5eneral "as anchored
at the port of $akehara, +apan. 2ence, "ithout an# corroborative evidence, these documents cannot be used as bases for
concludin! that private respondent "as !uilt# of desertion.

%etitioners also 7uestion the findin!s and conclusion of the Labor 9rbiter and the NLRC that "hat caused private
respondent in 3umpin! overboard "as the unmiti!ated pain he "as sufferin! "hich "as compounded b# the inattention of
the vesselGs captain to provide him "ith the necessar# treatment inspite of the fact that the ship "as moored for about t"o
"eeks at the anchora!e of $akehara, +apan4 and, that private respondentGs act "as a desperate move to protect himself and to
seek relief for his ph#sical sufferin!. %etitioners contend that the findin!s and conclusions of the Labor 9rbiter and the
NLRC "hich "ere affirmed b# the C9 are based on con3ecture because there is no evidence to prove that, at the time he
3umped ship, private respondent "as reall# sufferin! from an ankle in3ur#.

It is true that no substantial evidence "as presented to prove that the cause of private respondentGs confinement in a hospital
in $akehara, +apan "as his ankle in3ur#. $he Court ma# not rel# on the letter marked as 9nne. P;Q and attached to private
respondentGs %osition %aper because it "as unsi!ned and it "as not established "ho e.ecuted the same.K1,L 2o"ever, the
result of the .Ara# e.amination conducted b# the LLN -edical /ervices, Inc. on 9u!ust 0>, 199>, ri!ht after private
respondent "as repatriated to the %hilippines, clearl# sho"ed that there is a softAtissue s"ellin! around his ankle 3oint.K1:L
$his evidence is consistent "ith private respondentGs claim that he "as then sufferin! from an ankle in3ur# "hich caused
him to 3ump off the ship.

9s to petitionersG contention that private respondent could not have traversed the distance bet"een the ship and the shore if
he "as indeed sufferin! from unbearable pain b# reason of his ankle in3ur#, suffice it to sa# that private respondent is an
ableAbodied seaman and that "ith the full use of both his arms and the help of a life 3acket, "as able to reach the shore.

9s correctl# defined b# petitioners, desertion, in maritime la" is&

$he act b# "hich a seaman deserts and abandons a ship or vessel, in "hich he had en!a!ed to perform a vo#a!e, before the
e.piration of his time, and "ithout leave. ;# desertion, in maritime la", is meant, not a mere unauthoriBed absence from
the ship, "ithout leave, but an unauthoriBed absence from the ship 6%78 an %n7"n7%on no7 7o r"7urn 7o 8"r '"r&%#"4 or as it
is often e.pressed, animo non revertendi, that is, "ith an intention to desert.K19L (emphasis supplied)

2ence, for a seaman to be considered as !uilt# of desertion, it is essential that there be evidence to prove that if he leaves
the ship or vessel in "hich he had en!a!ed to perform a vo#a!e, he has the clear intention of abandonin! his dut# and of not
returnin! to the ship or vessel. In the present case, ho"ever, petitioners failed to present clear and convincin! proof to sho"
that "hen private respondent 3umped ship, he no lon!er had the intention of returnin!. $he fact alone that he 3umped off the
ship "here he "as stationed, s"am to shore and sou!ht medical assistance for the in3ur# he sustained is not a sufficient
basis for petitioners to conclude that he had the intention of desertin! his post. /ettled is the rule that in termination cases,
the burden of proof rests upon the emplo#er to sho" that the dismissal is for a 3ust and valid cause.K0L $he case of the
emplo#er must stand or fall on its o"n merits and not on the "eakness of the emplo#eeGs defense.K01L In the present case,
since petitioners failed to dischar!e their burden of provin! that private respondent is !uilt# of desertion, the Court finds no
reason to depart from the conclusion of the Labor 9rbiter, NLRC and the C9 that private respondentGs dismissal is ille!al.

In their second assi!ned error, petitioners cite /ection 19(C) of %<)9 -emorandum Circular No. ==A9>K00L kno"n as the
Revised /tandard )mplo#ment $erms and Conditions Eovernin! the )mplo#ment of 8ilipino /eafarers <n ;oard <ceanA
Eoin! Iessels as their alternative basis in terminatin! the emplo#ment of private respondent. /aid /ection provides as

/ection 19. R)%9$RI9$I<N
. . . .

C. If the vessel arrives at a convenient port "ithin a period of three months before the e.piration of
his contract, the master5 emplo#er ma# repatriate the seafarer from such port provided that the
seafarer shall be paid all his earned "a!es. In addition, the seafarer shall also be paid his leave pa# for
the entire contract period plus a termination pa# e7uivalent to one (1) month of his basic pa#,
provided, ho"ever, that this mode of termination ma# onl# be e.ercised b# the master5emplo#er if the
ori!inal contract period of the seafarer is at least ten (1) months4 provided, further, that the
conditions for this mode of termination shall not appl# to dismissal for cause.

$he Court is not persuaded. %<)9 -emorandum Circular No. ==A9> took effect on +anuar# 1, 199, "hile the contract of
emplo#ment entered into b# and bet"een private respondent and petitioners "as e.ecuted on 9pril 1, 199>. 2ence, it is
"ron! for petitioners to cite this particular -emorandum because at the time of petitionersG and private respondentGs
e.ecution of their contract of emplo#ment -emorandum Circular No. ==A9> "as not #et effective.

?hat "as in effect at the time private respondentGs Contract of )mplo#ment "as e.ecuted "as %<)9 -emorandum
Circular No. 11, /eries of 19:9. It is clearl# provided under the second para!raph of private respondentGs Contract of
)mplo#ment that the terms and conditions provided under -emorandum Circular No. 11, /eries of 19:9 shall be strictl#
and faithfull# observed. 2ence, it is -emorandum Circular No. 11, /eries of 19:9 "hich !overns private respondentGs
contract of emplo#ment.

/ection 2 (>), %art I of -emorandum Circular No. 11, "hich has almost identical provisions "ith /ection 19 (C) of
-emorandum Circular No. ==A9>, provides as follo"s&

/)C$I<N 2. $)R-IN9$I<N <8 )-%L<J-)N$

. . . .

>. If the vessel arrives at a convenient port "ithin a period of three (6) months before the e.piration of the Contract, the
master5emplo#er ma# repatriate the seaman from such port provided that the seaman shall be paid all his earned "a!es. In
addition, the seaman shall also be paid his leave pa# for the entire contract period plus a termination pa# e7uivalent to one
(1) month of his basic pa#, provided, ho"ever, that this mode of termination ma# onl# be e.ercised b# the master5emplo#er
if the ori!inal contact period of the seaman is at least ten (1) months4 provided, further, that the conditions for this mode of
termination shall not appl# to dismissal for cause.

$he Court a!rees "ith private respondentGs contention that petitionersG ar!uments are misplaced. %etitioners ma# not use
the aboveA7uoted provision as basis for terminatin! private respondentGs emplo#ment because it is incon!ruent "ith their
primar# defense that the latterGs dismissal from emplo#ment "as for cause. %etitioners ma# not claim that the# ended
private respondentGs services because he is !uilt# of desertion and at the same time ar!ue that the# e.ercised their option to
prematurel# terminate his emplo#ment, even "ithout cause, simpl# because the# have the ri!ht to do so under their contract.
$hese !rounds for termination are inconsistent "ith each other such that the use of one necessaril# ne!ates resort to the
other. ;esides, it appears from the records that petitionersG alternative defense "as pleaded merel# as an afterthou!ht
because it "as onl# in their appeal "ith the NLRC that the# raised this defense. $he onl# defense raised b# petitioners in
their 9ns"er "ith Counterclaim filed "ith the office of the Labor 9rbiter is that private respondent "as dismissed from
emplo#ment b# reason of desertion.K06L Dnder the Rules of Court,K01L "hich is applicable in a suppletor# character in
labor cases before the Labor 9rbiter or the NLRC pursuant to /ection 6, Rule I of the Ne" Rules of %rocedure of the
NLRCK0=L, defenses "hich are not raised either in a motion to dismiss or in the ans"er are deemed "aived.K0>L

Erantin!, for the sake of ar!ument, that petitioners ma# use /ection 2 (>), %art I of -emorandum Circular No. 11 or
/ection 19(C) of -emorandum Circular No. ==A9> as basis for terminatin! private respondentGs emplo#ment, it is clear
that one of the conditions before an# of these provisions becomes applicable is "hen the vessel arrives at a convenient port
"ithin a period of three (6) months before the e.piration of the contract of emplo#ment. In the present case, private
respondentGs contract "as e.ecuted on 9pril 1, 199> for a duration of t"elve months. 2e "as deplo#ed aboard 34
Cemtex 5eneral on +une 0=, 199> and repatriated to the %hilippines on 9u!ust 00, 199>. 2ence, it is clear that petitioners
did not meet this condition because private respondentGs termination "as not "ithin a period of three months before the
e.piration of his contract of emplo#ment.

-oreover, the Court finds nothin! in the records to sho" that petitioners complied "ith the other conditions enumerated
therein, such as the pa#ment of all of private respondentGs earned "a!es to!ether "ith his leave pa# for the entire contract
period as "ell as termination pa# e7uivalent to his one month salar#.

%etitioners admit that the# did not inform private respondent in "ritin! of the char!es a!ainst him and that the# failed to
conduct a formal investi!ation to !ive him opportunit# to air his side. 2o"ever, petitioners contend that the t"in
re7uirements of notice and hearin! applies strictl# onl# "hen the emplo#ment is "ithin the %hilippines and that these need
not be strictl# observed in cases of international maritime or overseas emplo#ment.

$he Court does not a!ree. $he provisions of the Constitution as "ell as the Labor Code "hich afford protection to labor
appl# to 8ilipino emplo#ees "hether "orkin! "ithin the %hilippines or abroad. -oreover, the principle of lex loci
contractus (the la" of the place "here the contract is made) !overns in this 3urisdiction.K0,L In the present case, it is not
disputed that the Contract of )mplo#ment entered into b# and bet"een petitioners and private respondent "as e.ecuted here
in the %hilippines "ith the approval of the %hilippine <verseas )mplo#ment 9dministration (%<)9). 2ence, the Labor
Code to!ether "ith its implementin! rules and re!ulations and other la"s affectin! labor appl# in this case.K0:L
9ccordin!l#, as to the re7uirement of notice and hearin! in the case of a seafarer, the Court has alread# ruled in a number
of cases that before a seaman can be dismissed and dischar!ed from the vessel, it is re7uired that he be !iven a "ritten
notice re!ardin! the char!es a!ainst him and that he be afforded a formal investi!ation "here he could defend himself
personall# or throu!h a representative.K09L 2ence, the emplo#er should strictl# compl# "ith the t"in re7uirements of
notice and hearin! "ithout re!ard to the nature and situs of emplo#ment or the nationalit# of the emplo#er. %etitioners
failed to compl# "ith these t"in re7uirements.

%etitioners also contend that the "a!es of private respondent from 9u!ust 11A00, 199> "ere applied to the costs of his
repatriation. %etitioners ar!ue that the offAsettin! of the costs of his repatriation a!ainst his "a!es for the aforementioned
period is allo"ed under the provisions of /ection 19()) of -emorandum Circular No. ==A9> "hich provides that "hen the
seafarer is dischar!ed for an# 3ust cause, the emplo#er shall have the ri!ht to recover the costs of his replacement and
repatriation from the seafarerGs "a!es and other earnin!s.

$he Court does not a!ree. /ection 19()) of -emorandum Circular No. ==A9> has its counterpart provision under /ection 2
(0), %art II of -emorandum Circular No. 11, to "it&

/)C$I<N 2. R)%9$RI9$I<N

. . . .

0. ?hen the seaman is dischar!ed for disciplinar# reasons, the emplo#er shall have the ri!ht to recover the costs of
maintenance and repatriation from the seamanGs balance of "a!es and other earnin!s.

. . . .

It is clear under the aboveA7uoted provision that the emplo#er shall have the ri!ht to recover the cost of repatriation from the
seamanGs "a!es and other earnin!s onl# if the concerned seaman is validl# dischar!ed for disciplinar# measures. In the
present case, since petitioners failed to prove that private respondent "as validl# terminated from emplo#ment on the
!round of desertion, it onl# follo"s that the# do not have the ri!ht to deduct the costs of private respondentGs repatriation
from his "a!es and other earnin!s.

Lastl#, the Court is not persuaded b# petitionersG contention that the private respondent is not entitled to his mone# claims
representin! his livin! allo"ance, overtime pa#, vacation pa# and special allo"ance as "ell as attorne#Gs fees because he
failed to present an# proof to sho" that he is entitled to these a"ards.

2o"ever, the Court finds that the monetar# a"ard representin! private respondentGs three months salar# as "ell as the
a"ard representin! his livin! allo"ance, overtime pa#, vacation pa# and special allo"ance should be modified.

$he Court finds no basis in the NLRCGs act of includin! private respondentGs livin! allo"ance as part of the three months
salar# to "hich he is entitled under /ection 1 of Republic 9ct (R9) No. :10, other"ise kno"n as the P-i!rant ?orkers
and <verseas 8ilipinos 9ct of 199=.Q $he pertinent provisions of the said 9ct provides&

/ec. 1. -one# Claims R

. . . .

In case of termination of overseas emplo#ment "ithout 3ust, valid or authoriBed cause as defined b# la" or contract, the
"orker shall be entitled to the full reimbursement of his placement fee "ith interest at t"elve percent (10O) per annum, plus
his salaries for the une.pired portion of his emplo#ment contract or for three (6) months for ever# #ear of the une.pired
term, "hichever is less.

. . . .

It is clear from the aboveA7uoted provision that "hat is included in the computation of the amount due to the overseas
"orker are onl# his salaries. 9llo"ances are e.cluded. In the present case, since private respondent received a basic
monthl# salar# of D/N1., he is, therefore, entitled to receive a sum of D/N10., representin! three months of said

9s to the a"ards of livin! allo"ance, overtime pa#, vacation pa# and special allo"ance, it is clearl# provided under private
respondentGs Contract of )mplo#ment that he is entitled to these benefits as follo"s& livin! allo"ance of D/N11.5month4
vacation leave "ith pa# e7uivalent to D/N1.5month4 overtime rate of D/N10.5month4 and, special allo"ance of

?ith respect, ho"ever, to the a"ard of overtime pa#, the correct criterion in determinin! "hether or not sailors are entitled
to overtime pa# is not "hether the# "ere on board and can not leave ship be#ond the re!ular ei!ht "orkin! hours a da#, but
"hether the# actuall# rendered service in e.cess of said number of hours.K61L In the present case, the Court finds that
private respondent is not entitled to overtime pa# because he failed to present an# evidence to prove that he rendered service
in e.cess of the re!ular ei!ht "orkin! hours a da#.

<n the basis of the fore!oin!, the remainin! benefits to "hich the private respondent is entitled is the livin! allo"ance of
D/N11.5month, "hich "as removed in the computation of private respondentGs salar#, special allo"ance of
D/N1,=.5month and vacation leave "ith pa# amountin! to D/N1.5month. /ince private respondent rendered service
for t"o months these benefits should be doubled, !ivin! a total of D/N,1..

9s to the a"ard of attorne#Gs fees, this Court ruled in 'e%es v. Court of Appeals,K60L as follo"s&

. . . K$Lhere are t"o commonl# accepted concepts of attorne#'s fees, the soAcalled ordinar# and e.traordinar#. In its
ordinar# concept, an attorne#Gs fee is the reasonable compensation paid to a la"#er b# his client for the le!al services he has
rendered to the latter. $he basis of this compensation is the fact of his emplo#ment b# and his a!reement "ith the client. In
its e.traordinar# concept, attorne#Gs fees are deemed indemnit# for dama!es ordered b# the court to be paid b# the losin!
part# in a liti!ation. $he instances "here these ma# be a"arded are those enumerated in 9rticle 00: of the Civil Code,
specificall# par. , thereof "hich pertains to actions for recover# of "a!es, and is pa#able not to the la"#er but to the client,
unless the# have a!reed that the a"ard shall pertain to the la"#er as additional compensation or as part thereof. $he
e.traordinar# concept of attorne#Gs fees is the one contemplated in 9rticle 111 of the Labor Code, "hich provides&

9rt. 111. Attorne%6s fees. R (a) In cases of unla"ful "ithholdin! of "a!es, the culpable
part# ma# be assessed attorne#Gs fees e7uivalent to ten percent of the amount of "a!es
recovered . . .

T8" a<or"=>uo7"$ Ar7%#;" 111 %' an "?#"97%on 7o 78" $"#;ar"$ 9o;%#y o< '7r%#7 #on'7ru#7%on %n 78" a6ar$%n: o< a77orn"y@'
<""'. A;78ou:8 an "?9r"'' <%n$%n: o< <a#7' an$ ;a6 %' '7%;; n"#"''ary 7o 9ro&" 78" A"r%7 o< 78" a6ar$, 78"r" n""$ no7 /"
any '8o6%n: 78a7 78" "A9;oy"r a#7"$ Aa;%#%ou';y or %n /a$ <a%78 68"n %7 6%788";$ 78" 6a:"'. T8"r" n""$ on;y /" a
'8o6%n: 78a7 78" ;a6<u; 6a:"' 6"r" no7 9a%$ a##or$%n:;y, a' %n 78%' #a'".
In carr#in! out and interpretin! the Labor Code's provisions and its implementin! re!ulations, the emplo#eeGs "elfare
should be the primordial and paramount consideration. $his kind of interpretation !ives meanin! and substance to the liberal
and compassionate spirit of the la" as provided in 9rticle 1 of the Labor Code "hich states that PKaLll doubts in the
implementation and interpretation of the provisions of Kthe LaborL Code includin! its implementin! rules and re!ulations,
shall be resolved in favor of laborQ, and 9rticle 1,0 of the Civil Code "hich provides that PKiLn case of doubt, all labor
le!islation and all labor contracts shall be construed in favor of the safet# and decent livin! for the laborer.QK66L ()mphasis

In the present case, it is true that the Labor 9rbiter and the NLRC failed to state the reasons "h# attorne#Gs fees are bein!
a"arded. 2o"ever, it is clear that private respondent "as ille!all# terminated from his emplo#ment and that his "a!es and
other benefits "ere "ithheld from him "ithout an# valid and le!al basis. 9s a conse7uence, he is compelled to file an
action for the recover# of his la"ful "a!es and other benefits and, in the process, incurred e.penses. <n these bases, the
Court finds that he is entitled to attorne#Gs fees.

4HERE.ORE, the petition is )ARTL0 GRANTED. $he Court of 9ppealsG *ecision dated *ecember 1:, 01 and
Resolution dated 9pril 1, 00 are A..IRED "ith ODI.ICATION to the effect that the a"ard of D/N1>0.
representin! private respondentGs three months salar# is reduced to D/N10.. $he a"ard of D/N==. representin!
private respondentGs livin! allo"ance, overtime pa#, vacation pa# and special allo"ance for t"o months is deleted and in
lieu thereof, an a"ard of D/N,1. is !ranted representin! private respondentGs livin! allo"ance, special allo"ance and
vacation leave "ith pa# for the same period.
No costs.
G.R. No. 16,681 A9r%; 2,, 2009
BERNARDINO 5. NA5ARRO, %etitioner,
).5. )AJARILLO LINER, INC., Respondent.
* ) C I / I < N
;efore the Court is a petition for revie" on certiorari under Rule 1= of the Rules of Court seekin! to annul the *ecision
dated November 0:, 06 and the Resolution
dated +ul# 19, 01 of the Court of 9ppeals in C9A E.R. /% No. >,>>>.
%.I. %a3arillo Liner Inc. (respondent), a corporation en!a!ed in the business of land transportation, emplo#ed ;ernardino I.
Navarro (petitioner) as a bus driver on 9pril 0, 199=. /ometime in -arch 199>, petitioner, "hile on dut#, "as apprehended
for pickin! up passen!ers in a nonAloadin! Bone (ille!al terminal) alon! 9#ala 9venue, -akati. 2is driver's license "as
confiscated b# a -etro -anila *evelopment 9uthorit# (--*9) enforcer and a correspondin! traffic violation receipt
($IR) "as issued to him, "hich "as valid as a temporar# driver's license for seven da#s from date of apprehension. ;efore
the e.piration of the $IR, petitioner alle!edl# !ave the same to respondent's <perations -ana!er 9rnel 2e!ina
and re7uested the latter to redeem his license from the --*9. Respondent "as not able to redeem the license from the
--*9 but merel# secured a t"oAmonth e.tension for the validit# of the $IR. /ometime in -a# 199>, petitioner "as
a!ain apprehended alon! /hoemart, -akati b# hi!h"a# patrol operatives "ho demanded petitioner's driver's license. $he
record does not specif# the violation. ?hen petitioner presented his $IR, the operatives ordered him to drive the bus
directl# to the !ara!e. 9fter the incident, petitioner "as not able to "ork for respondent a!ain.
<n -arch 11, 199,, petitioner filed "ith the Labor 9rbiter (L9), a complaint for ille!al dismissal "ith dama!es a!ainst
respondent, alle!in! that he "as dismissed from the service on -a# 19, 199>4 that as a bus driver, he "orked for five da#s a
"eek and from si. in the mornin! up to eleven in the evenin! "ith a !ross fare receipts avera!e of %>,=.4 that from the
amount of %>,=., he "as entitled to a 9O commission and %=. incentive4 that in cases of apprehension of
respondent's driver due to violations involvin! ille!al terminal or bein! (out of line,( respondent "as in char!e of !ettin! the
driver's license from the --*94 that "hen he "as apprehended in -arch 199> for ille!al terminal, he !ave the $IR to
2e!ina and re7uested the latter to redeem the license from the --*94 that petitionerGs license "as not redeemed and
respondent secured onl# t"o e.tensions of the $IR's validit# for t"o months4 that "hen he "as a!ain apprehended in -a#
199> and upon arrival at the respondent's !ara!e, he !ave the e.tended $IR to 2e!ina and re7uested the latter to redeem
his license from the --*94 that 2e!ina informed him that his license "ould be redeemed the follo"in! da#, but "hen
petitioner tried to !et his license from 2e!ina, the latter told him that he failed to !et it because of heav# "orkload4 that
petitioner "as asked to come back after one "eek "ith the assurance that his license "ould alread# be available, but no
license "as released4 that he "as constantl# follo"in! up his license "ith respondent's office but "as onl# !iven promises
that his license "as due for release4 that respondent's refusal to redeem his license constituted constructive dismissal
because he "as deprived of his source of livelihood, as he "as not able to perform his "ork as a bus driver "ithout his
In its position paper, respondent claimed that petitioner abandoned his 3ob as sho"n b# the former's letter dated +ul# 0:,
199> addressed to petitioner re7uirin! the latter to e.plain "h# he should not be dismissed for ne!lectin! his dut# throu!h
prolon!ed absence4 that after petitioner submitted his repl# to respondent's letter, nothin! "as heard from him until he filed
his complaint "ith the L94 that it "as petitioner's obli!ation to redeem the driver's license4 that petitioner's inaction to !et
back his license sho"ed his lack of interest in resumin! his 3ob4 and that respondent could not !ive back petitioner's "ork
"ithout his driver's license.
%etitioner filed his repl#, ar!uin! that in his 9u!ust :, 199> letter to respondent's letter dated +ul# 0:, 199>, he had alread#
brou!ht to its attention that it should redeem his license for havin! been cau!ht for ille!al terminal, to "it&
;ilan! tu!on sa sulat nin#o a# ikinalulun!kot kon! sabihin sa in#o na hindi ako na!paba#a sa akin! tun!kulin
bilan! driver ba!kus a# nasa mana!ement an! pa!kukulan! at ito'# tun!kol sa hindi pa!tubos n! akin! $IR
na nahuli sa 9#ala n! ille!al terminal na dapat a# sa!utin n! atin! kumpan#a. Na!pabalik balik ako sa atin!
opisina dahil !usto kon! makuha an! ori!inal license ko pero an! nan!#ari puro e.tension a7 8an::an: 'a
7u;uyan n: na6a;a $a8%; na$uCu7an aCo. 9t isa pa, na!paalam ako ka# 9rnel na hindi muna ako
makakalabas han!!a't hindi pa nalulutas and problema ko.
()mphasis supplied)
that there "as no response received from respondent4 that it "as onl# in its position paper filed "ith the L9 that respondent
raised the matter of not condonin! or encoura!in! the act of usin! ille!al terminal, and that it could not be held liable for
petitioner's unla"ful act. %etitioner added that it could not be denied that petitioner re7uested respondent to redeem his
license, since the $IR "as in respondent's possession.
In the Re3oinder, respondent ar!ued that the $IR "as submitted b# petitioner "hen he "as !iven an e.tension permit, and
it "as for record purposes as it "as onl# a .ero. cop#.
<n /eptember 1, 199:, the L9 rendered a decision
in favor of herein petitioner, the dispositive portion of "hich reads as
?2)R)8<R), 3ud!ment is hereb# rendered orderin! respondents to reinstate complainant to his former position "ith full
back"a!es "hich as of 9u!ust 61, 199: had alread# amounted to %1,=,=. and incentives in the amount of %6=,1..
In findin! that petitioner "as constructivel# dismissed, the L9 said that respondent's claim of petitioner's ne!li!ence in the
performance of his duties as a driver due to his alle!ed prolon!ed absences had been "ell e.plained b# petitioner4 that said
absences could never be attributed to petitioner's fault, since he could not perform his usual duties as a driver "ithout his
license4 that he "as not remiss in follo"in! up the release of his license from respondent, "hich did not do its 3ob.
$he L9 did not sustain respondent's claim that it "as not the latter's polic# to redeem the license of its drivers "ho "ere
cau!ht for ille!al terminal, as respondent did not den# petitioner's alle!ation that he submitted the $IR to 2e!ina and that
the office of respondent "orked for the rene"al of the period of its validit# pendin! the release of petitioner's license4 and
respondent's polic# of redeemin! driver's license "as further established b# the affidavit of -arcelino IbaSeB, one of
respondent's drivers and the Chairman of the ;oard of the 7ilusan) 3an))a)awa sa %I% Liner. $he L9 then concluded
that respondent's failure to redeem petitioner's license deprived him of the source of his livelihood "ithout 3ust and valid
Respondent filed its appeal "ith the NLRC. $he NLRC rendered its decision
dated 9u!ust 1,, 0, the dispositive portion
of "hich reads&
?2)R)8<R), the appealed decision is -<*I8I)* in that respondent is ordered to reinstate complainant to his former
position as bus driver "ithout back"a!es.
<n the 7uestion of "ho should redeem petitioner's driver's license, the NLRC ruled that petitioner as the holder of the
license should be the one to redeem the same4 that considerin! petitionerGs alle!ation in his position paper, that he !ave the
$IR to 2e!ina and re7uested the latter to redeem his license, it "as clear that petitioner "as merel# re7uestin! him to
redeem his license, "hich did not connote an# obli!ation on 2e!ina's part4 that as respondent failed to heed such re7uest, it
"as incumbent upon petitioner to redeem his license, as it "as necessar# in the pursuit of his occupation as a bus driver. $he
NLRC did not believe petitioner's claim that he submitted the ori!inal $IR to respondent, because he could not have driven
"ith onl# a photocop# of said document..awphi..#w8
<n the issue of constructive dismissal, the NLRC found that the evidence sho"ed that respondent sent a notice to petitioner
re7uirin! him to e.plain his prolon!ed absences, to "hich petitioner submitted an e.planation that he could not report for
"ork, as his license "as "ith the authorities and "as "aitin! to be redeemed b# respondent4 and that no action "as taken b#
the latter on the matter. $hus, the NLRC a!reed "ith the L9 that there "as constructive dismissal4 and petitioner should be
reinstated upon presentation of his driver's license, but "ithout back"a!es considerin! that he "as e7uall# at fault, as he did
not bother to take proper steps to redeem his license.
%etitioner's motion for reconsideration "as denied in a Resolution
dated /eptember 09, 0.
%etitioner filed a petition for certiorari "ith the C9. Respondent filed its Comment and petitioner his Repl# thereto.
<n November 0:, 06, the C9 rendered herein assailed decision dismissin! the petition for lack of merit.
$he C9 found that "hile an a"ard of back"a!es presupposes a findin! of ille!al dismissal, not ever# case of ille!al
dismissal deserves an a"ard of back"a!es, citin! 3anila +lectric Co. v. &ational Labor 'elations Commission,
Cathedral $chool of 0echnolo)% v. &ational Labor 'elations Commission,
and Durabuilt 'ecappin) and Plant Compan%
v. &ational Labor 'elations Commission.
$he C9 further held that petitioner "as the holder of the confiscated driver's
license4 thus, it "as his dut# to redeem his license4 that "hile respondent previousl# took care of retrievin! a confiscated
driver's license, it "as onl# a matter of accommodation, as there is no la" or re!ulation makin! it an obli!ation of the
emplo#er to undertake retrieval of its errin! driver's license4 that "hen respondent failed to heed petitioner's re7uest to
redeem his license, a personal privile!e and nonAtransferable, petitioner should have personall# redeemed the same, "hich
he did not4 thus, he "as not entitled to back"a!es.
%etitioner's motion for reconsideration "as denied in the assailed Resolution dated +ul# 19, 01.
2ence, herein petition on the follo"in! !rounds&
(1) the decision is inconsistent "ith the settled doctrine that doubts arisin! from the evidence must be resolved in
favor of the emplo#ee4
(0) the findin!s of the Court of 9ppeals that petitioner should be the one "ho should redeem his driver's license are
!rounded on speculations, surmises or con3ectures4
(6) petitioner is entitled to reinstatement "ith full back"a!es considerin! that he "as ille!all# dismissed from the
$he petition lacks merit.
8or a correct perspective in the resolution of the present petition, it must be stressed that the findin! of the L9 that petitioner
"as constructivel# dismissed b# respondent is alread# a settled issue. Respondent did not appeal from the findin! that it
constructivel# dismissed petitioner.
$hus, the Court is constrained to limit itself to the determination of "hether petitioner is entitled to back"a!es4 that is,
"hether the C9 "as correct in upholdin! the NLRC's findin! that petitioner is not entitled to back"a!es, as he "as e7uall#
at fault for not botherin! to take proper steps to redeem his license.
$he L9 found that it "as the obli!ation of respondent to redeem petitioner's driverGs license and, therefore, petitioner "as
constructivel# dismissed b# respondent. ?hile affirmin! the constructive dismissal committed b# respondent, the NLRC
and the C9, ho"ever, held that petitioner as the holder of the license should be the one to redeem the same, as this "as
necessar# in the pursuit of his occupation as a bus driver.
%etitioner "as usin! the e.tended $IR "hen he "as a!ain cau!ht sometime in -a# 199> b# hi!h"a# patrol operatives and
"as ordered to drive directl# to the !ara!e.
%etitioner claimed that he !ave the e.tended $IR to respondent for the latter to redeem the same. 2o"ever, such claim "as
belied b# petitioner's letterArepl# dated 9u!ust :, 199> to respondent's letter dated +ul# 0:, 199>, askin! him to e.plain his
prolon!ed absence. %etitioner "rote that the e.tended $IR "as stolen from him. /uch admission sho"s that the e.tended
$IR had been in petitioner's possession in -a# 199> until it "as stolen from him, the date of "hich petitioner did not
specif#, "ittin!l# or un"ittin!l#. $here is no sho"in! that petitioner ever reported the loss of the e.tended $IR to
respondent before he "as asked to e.plain his prolon!ed absence in +ul# 199>4 or that he reported the loss to the --*9.
$hus, ho" could petitioner e.pect respondent to redeem his driver's license "hen the e.tended $IR "as not in respondent's
possessionT Respondent could not be reasonabl# e.pected to redeem petitionerGs driver's license "hile he, as o"ner of the
license, did not take the proper steps to report the loss of the $IR to respondent or to the --*9 to !et back his license.
$hese circumstances sho" that petitioner "as not at all faultless, as his violation caused the confiscation of his license.
Conse7uentl#, the Court a!rees "ith the NLRC's conclusion that petitioner is not entitled to back"a!es.
2e never bothered to redeem his license at the soonest possible time "hen there "as no sho"in! that he "as unla"full#
prevented b# respondent from doin! so. $hus, petitioner should not be paid for the time he "as not "orkin!. $he Court has
held that "here the failure of emplo#ees to "ork "as not due to the emplo#er's fault, the burden of economic loss suffered
b# the emplo#ees should not be shifted to the emplo#er. )ach part# must bear his o"n loss.
It "ould be unfair to allo"
petitioner to recover somethin! he has not earned and could not have earned, since he could not dischar!e his "ork as a
driver "ithout his driver's license. Respondent should be e.empted from the burden of pa#in! back"a!es.
$he a!eAold rule !overnin! the relation bet"een labor and capital, or mana!ement and emplo#ee, of a (fair da#'s "a!e for a
fair da#'s labor( remains as the basic factor in determinin! emplo#ees' "a!es. If there is no "ork performed b# the
emplo#ee, there can be no "a!e or pa# AA unless, of course, the laborer "as able, "illin! and read# to "ork but "as ille!all#
locked out, suspended or dismissed,
or other"ise ille!all# prevented from "orkin!,
a situation "hich "e find is not
present in the instant case.
4HERE.ORE, the petition for revie" is DENIED. $he *ecision dated November 0:, 06 and the Resolution dated +ul#
19, 01 of the Court of 9ppeals are A..IRED.
No costs.
/< <R*)R)*.
G.R. No. 1+09+- ay 11, 2000
AL.ONSO )I)INO, NOEL ANGA0 an$ E2E3*IEL ANITI, petitioners,

9LL9N IILL9R, *9NIL< IN*I$9, 9R$DR< -9NI-$I-, E)R/<N *9$9LI<, E)RRJ IILL9R9L;<, 9L8<N/<
%I%IN<, N<)L 9NE9J and )U)@DI)L -9NI-$I-, in this petition for certiorari, assail for havin! been rendered "ith
!rave abuse of discretion the 6 -a# 199, *ecision of the National Labor Relations Commission (NLRC) vacatin! and
settin! aside the *ecision of the Labor 9rbiter, as "ell as its 61 +ul# 199, Resolution den#in!
2IA$)C2 -9ND89C$DRINE C<R%<R9$I<N (2IA$)C2), a corporation dul# or!aniBed and e.istin! under %hilippine
la"s, is en!a!ed in the business of manufacturin! cartons for commercial purposes. <n different dates, 2IA$)C2 hired
petitioners to perform various 3obs for the compan# such as slitter machine operator, inkman, silk screen printer, truck
helper, rubber d#e setter, forklift operator and stitchin! machine operator.
/ometime in -arch 1991 petitioners, "ho "ere members of the 8ederation of 8ree ?orkers Dnion, filed before the
*epartment of Labor a petition for certification election amon! the rankAandAfile emplo#ees of 2IA$)C2. $he petition "as
!ranted and a certification election "as conducted inside the compan# premises on 61 +ul# 1991. 2o"ever, petitioners lost
in the election as the 2IA$)C2 emplo#ees voted for (No Dnion.(
<n 1 9u!ust 1991 and the succeedin! da#s thereafter, petitioners failed to report for "ork. $he# alle!ed that the# "ere
barred from enterin! the premises of 2IA$)C24 hence, the# immediatel# filed before the Labor 9rbiter separate complaints
for ille!al dismissal and labor standards claims a!ainst 2IA$)C2, 2erman $. Eo, o"ner, and Carmen ;elano, !eneral
%etitioners claimed that the# "ere summaril# dismissed from emplo#ment b# the mana!ement of 2IA$)C2 in retaliation
for or!aniBin! a labor union in the "ork premises as "ell as in filin! the petition for certification election before the
*epartment of Labor. $he# further averred that the# "ere paid dail# "a!es ran!in! from %:1. to %11=. "hich "ere
belo" the minimum fi.ed b# la" and that the# "ere re7uired to "ork si. (>) da#s a "eek from : o'clock in the mornin! to ,
o'clock in the evenin! "ithout bein! paid for the overtime. Neither "ere the# paid their service incentive leave pa# and 16th
month pa#.
%etitioners ori!inall# numbered t"ent#Athree (06) but fifteen (1=) of them desisted in the course of the proceedin!s thus
leavin! onl# the ei!ht (:) petitioners "ho pursued their cause to the end.
<n the other hand, 2IA$)C2 denied havin! dismissed petitioners. It contended that petitioners "ere probabl# stun! b# their
defeat in the certification election such that the# refused to "ork thereafter4 that the 2IA$)C2 mana!ement called their
attention concernin! their unauthoriBed absences "ithout leave but petitioners continued "ith their leave en masse "ith the
sole intention of cripplin! the compan# operations4 and, that petitioners could return to their 3obs at 2IA$)C2 an# time at
their discretion. In support of these alle!ations, private respondent presented in evidence the affidavits
of emplo#ees "ho
initiall# 3oined petitioners in filin! their complaints but later desisted from pursuin! their claims. $he pertinent portions of
the affidavits uniforml# read F
0. $hat I hereb# state that I "as not dismissed b# the compan# or its officials, the truth of the matter bein!
that I did not report for "ork an#more after the certification election on +ul# 61, 1991, "hen our Dnion
lost in the said election4 that I "anted to resi!n from the compan#, as I am hereb# resi!nin! voluntaril#
from m# 3ob "ith 2IA$)C2 -9ND89C$DRINE C<R%<R9$I<N4
6. $hat it is not like"ise true that I "as underpaid, or that I "as paid salar# belo" the minimum fi.ed b#
la"4 that I "as receivin! m# dail# salar# in accordance "ith la"4 and that I received all the benefits due
me as emplo#ee like holida# pa#, service incentive leave and 16th month pa# for 1991 that I have no
claims "hatsoever a!ainst the compan# or its officials in connection "ith or arisin! from m# emplo#ment
"ith the compan#, and that the complaint I filed a!ainst the compan# "as due to misunderstandin! and
misconception of "hat I perceived I am entitled to4 that no" I realiBe that I have nothin! or I do not have
an# valid complaint or claim a!ainst the 2IA$)C2 -9ND89C$DRINE . . . .
$he# further submitted the hand"ritten notes of petitioners 9rturo -animtim and ).e7uiel -animtim addressed to the
mana!ement of 2IA$)C2. $he letter of 9rturo -animtim, the contents of "hich "ere substantiall# the same as those of
).e7uiel -animtim, read F
9ko po si -r. 9rturo -animtim a# kusan! loob na pumunta at lumapit sa pamunuan upan! humin!i nan!
anuman! financial assistance o tulon! na in#on! maibibi!a# sa akin lalun!Alalo na po para sa akin!
pamil#a, at kabilan! na rin po an! akin! tu"iran! pa!Aamin sa kasalanan! amin! !ina"a laban sa
mana!ement na kami po an! na!dulot n! malakin! kasiraan at per"is#o sa in#on! kumpan#a noon!
nakaraan dahil sa amin! !ina"an! pa!ti!il sa amin! trabaho n! saba#Asaba# n! "alan! paalam o
pahintulot sa mana!ement at na!in! sanhi n! malakin! pa!kalu!i n! kumpan#a.
9ko po a# kusan! loob na humihin!i n! in#on! kapata"aran sa pa!kakataon! ito bilan! in#on! datin!
man!!a!a"a at sa ta!al po rin n! akin! serbis#o sa in#on! kumpan#a na sana'# malu!od po nin#on!
pa!bi!#an an! akin! kahilin!an.
9ko po a# humihin!i n! kapata"aran sa mana!ement sa amin! malin! pamamaraan o pa!turin! sa
9n! in#on! lin!kod,
(/!d.) 9rturo -animtim
<n 1= 9u!ust 199> a consolidated decision "as rendered b# Labor 9rbiter )merson C. $umanon in favor of petitioners
orderin! 2IA$)C2 to reinstate petitioners to their former positions "ithout loss of seniorit# ri!hts and "ith full back "a!es,
and to pa# their mandated monetar# benefits computed as follo"s F
N9-) ;5?9E)/ D5%9J-)N$ 16$2 -% /IL%
9.IILL9R %1,>0.= %01,0>. %0,0.1 %1,:==.
*. IN*I$9 1,>0.= 10,916. 1,,>.= >,=.
E. *9$9LI< 1,>0.= 1,,61. :9=. >,=.
E. IILL9R9L;< 1,>0. 1>,1>6. 1,61,.6= 1,:==.
9. %I%IN< 1,>0.= =0. 16. 0,11=.
9. -9NI-$I- 1,>0.= =,96.9 19=.9 1,:==.
N. 9NE9J 11=,1=>.0= 911. ,:.>= 1,:==.
). -9NI-$I- 100,91.>= =,96:. 191.9 1,:==.
<n appeal b# 2IA$)C2, the NLRC in its *ecision of 6 -a# 199, vacated and set aside the Labor 9rbiter's *ecision and
ordered petitioners to report back to "ork, or if no lon!er feasible, directed 2IA$)C2 to pa# petitioners their separation
benefits. $he NLRC ruled F
?e have pored (over) the records and "e find no proof to support the Klabor arbiter'sL contention that soon
after the union to "hich complainants belon! lost in the certification election, said complainants "ere
summaril# dismissed "ithout even the benefit of due process. $here "as no record that the complainants
"ere terminated from their emplo#ment. ?hat is ver# revealin! is that the da# after the# lost in the
certification election, the# refused to report to "ork for no 3ustifiable reason "hich makes us believe that
the# voluntaril# resi!ned . . . . the findin! of the Labor 9rbiter that the mere fact that the# (complainants)
filed the complaint for ille!al dismissal ne!ates a notion of abandonment is so speculative and con3ectural
to be sustained. $he filin! of their complaint for ille!al dismissal indicates that it "as nothin! but an
attempt on their part to !ive verisimilitude to their desire to !et even "ith respondents.
In vie" of all the fore!oin!, the findin! of the Labor 9rbiter for ille!al dismissal a!ainst respondents, the
a"ard of back"a!es in favor of complainants is "ithout an# factual or le!al basis. 2o"ever, complainants
in their o"n free "ill and volition ma# return to "ork "ith respondents "ho are directed to accept them
"ithout loss of seniorit# ri!hts and benefits but "ithout back"a!es based on the principle of a fair da#'s
"ork for a fair da#'s pa# . . . . the alle!ation of complainants that the# "ere underpaid "ithout statin! their
respective specific basic pa# and the basis of their claim that the# "ere underpaid cannot be !iven
credence. -ere alle!ations "ithout supportin! proofs are not evidence in themselves.
$heir motion for reconsideration havin! been denied b# the NLRC in its Resolution dated 61 +ul# 199,, petitioners are no"
before us imputin! !rave abuse of discretion to the NLRC& (a) in rulin! that petitioners voluntaril# resi!ned from their 3obs
and "ere not ille!all# dismissed4 (b) in refusin! to correctl# appl# the la" and 3urisprudence relative to burden of proof in
termination cases and mone# claims of "orkers, abandonment of "ork and offers made b# a part# in the course of liti!ation4
and, (c) in rulin! that petitioners did not state their respective specific basic pa# and the basis of their claim that the# "ere
$he pivotal issues to be resolved are& first, "hether petitioners deliberatel# and un3ustifiabl# abandoned their emplo#ment,
or "ere ille!all# dismissed b# the mana!ement of 2IA$)C24 and second, "hether petitioners are entitled to back "a!es and
other monetar# benefits.
$he first issue involves a 7uestion of fact. It is "ellAsettled that factual findin!s of 9uasi-,udicial a!encies such as the NLRC
are !enerall# accorded not onl# respect but, at times, even finalit#. 2o"ever, the rule is not absolute and admits of certain
"ellAreco!niBed e.ceptions. $hus, "hen the findin!s of fact of the NLRC are not supported b# substantial evidence,
capricious or arbitrar#, and directl# at variance "ith those of the Labor 9rbiter,
this Court ma# make an independent
evaluation of the facts of the case.
?e find sufficient cause to deviate from the findin!s of the NLRC. It is clear from the records that sometime in 9u!ust
1991, immediatel# after petitioners supposedl# (refused to "ork( havin! lost earlier in the certification election, several
complaints for ille!al dismissal a!ainst 2IA$)C2 "ere filed b# petitioners. $hese are sufficient proofs that the# "ere never
!uilt# of leavin! their 3obs. $he concept of abandonment of "ork is inconsistent "ith the immediate filin! of complaints for
ille!al dismissal. 9n emplo#ee "ho took steps to protest his la#off could not b# an# lo!ic be said to have abandoned his
9bandonment is a matter of intention and cannot li!htl# be presumed from certain e7uivocal acts. $o constitute
abandonment, there must be clear proof of deliberate and un3ustified intent to sever the emplo#erAemplo#ee relationship.
-ere absence of the emplo#ee is not sufficient. $he burden of proof to sho" a deliberate and un3ustified refusal of an
emplo#ee to resume his emplo#ment "ithout an# intention of returnin! rests on the emplo#er.
2IA$)C2 failed to dischar!e its burden. ?e find its evidence F consistin! mainl# of the affidavit of emplo#ees and the
hand"ritten notes of 9rturo -animtim and ).e7uiel -animtim F not enou!h to establish that petitioners indeed
deliberatel# and un3ustifiabl# abandoned their 3obs. $he statements of the emplo#ees in these documents, readil#
ackno"led!in! their !uilt and absolutel# e.oneratin! their emplo#er from an# liabilit#, "ere ri!idl# and uniforml# stated,
and appeared too !ood to be true. ?e are not una"are of the schemes emplo#ed b# mana!ement to e.tract favorable
statements from their emplo#ees and entice them to desist from pursuin! their claims in e.chan!e for some financial
considerations or promise of immediate emplo#ment or at some future time.
$he hand"ritten letters of 9rturo -animtim and ).e7uiel -animtim spoke of their financial pli!ht. ?ithout "ork the#
found it difficult to kno" ho" their basic needs could be met. $he# are likel# to be famil# men, horrified b# the thou!ht that
the# could not even provide sufficientl# for their #oun! ones. It is precisel# this situation that must have compelled them to
surrender to 2IA$)C2 and seek financial assistance.
Neither do "e subscribe to 2IA$)C2's ar!ument that petitioners "ere hi!hl# skilled "orkers, and that to abruptl# terminate
their services "ould have a debilitatin! effect on the compan#. In this countr#, labor suppl# far e.ceeds the demand. /ooner
or later, e7uall# skilled "orkers "ould be linin! up to fill the 3ob vacancies. 2IA$)C2 apparentl# adopted a rather unsound
business polic# in terminatin! petitioners' emplo#ment, preferrin! to bear the immediate and inconse7uential losses in profit
"hich, it hoped, "ould prove to be temporar# and minimal in the lon! run, as compared to the lon!Aterm compan# losses
that "ould result if the# complied "ith union demands. Dnfortunatel#, the# miscalculated its repercussions.
2IA$)C2 ne.t avers that it had e.pressed "illin!ness to reinstate petitioners to their former positions in the compan#, but
the latter adamantl# refused. /uffice it to sa# that such refusal is understandable and should not be taken a!ainst petitioners.
Jieldin! to the compan# offer "ould deprive them of back "a!es to "hich the# are entitled thus effectivel# ne!atin! their
?e conclude that petitioners did not abandon their 3obs but "ere ille!all# dismissed therefrom b# private respondent. 9s a
conse7uence, the# are entitled to reinstatement "ith full back "a!es, undiminished b# earnin!s else"here, to be computed
from their ille!al dismissal to their actual reinstatement.
<n the second issue, the NLRC held that petitioners' claims for underpa#ment of "a!es, 16th month pa# and service
incentive leave pa# are "ithout basis.
?e disa!ree. (irst, petitioners e.ecuted a 1O&0 A((DA40
specif#in! their dail# "a!es, positions and periods of
emplo#ment, "hich "as made the basis of the Labor 9rbiter's computation of the monetar# a"ards. $econd, all that the
NLRC needed to do "as to refer to the prevailin! minimum "a!e to ascertain the correctness of petitioners' claims. 0hird,
and most importantl#, the burden of provin! pa#ment of monetar# claims rests on the emplo#er.
In 1imene# v. &ational
Labor 'elations Commission
"e held F
9s a !eneral rule, one "ho pleads pa#ment has the burden of provin! it. )ven "here the plaintiff must
alle!e nonApa#ment, the !eneral rule is that the burden rests on the defendant to prove pa#ment, rather
than on the plaintiff to prove nonApa#ment. $he debtor has the burden of sho"in! "ith le!al certaint# that
the obli!ation has been dischar!ed "ith pa#ment.
$he reason for the rule is that the pertinent personnel files, pa#rolls, records, remittances and other similar documents F
"hich "ill sho" that overtime, differentials, service incentive leave and other claims of "orkers have been paid F are not
in the possession of the "orker but in the custod# and absolute control of the emplo#er. $hus, in choosin! not to present
evidence to prove that it had paid all the monetar# claims of petitioners, 2IA$)C2 failed once a!ain to dischar!e the onus
probandi. Conse7uentl#, "e have no choice but to a"ard those claims to petitioners.
8inall#, "e note that the hand"ritten letters and affidavits e.ecuted b# 9rturo -animtim and ).e7uiel -animtim partake of
the nature of 7uitclaims. Nevertheless, a deed of release or 7uitclaim cannot bar emplo#ees from demandin! benefits to
"hich the# are le!all# entitled, or stop them from contestin! the le!alit# of their dismissal. $he acceptance of these benefits
does not amount to an estoppel.
2o"ever, it is but 3ust that the amounts received b# 9rturo and ).e7uiel -animtim as
consideration for the 7uitclaims be deducted from their respective monetar# a"ards.
?2)R)8<R), the petition is ER9N$)*. $he assailed *ecision dated 6 -a# 199, and Resolution dated 61 +ul# 199, of
the National Labor Relations Commission are /)$ 9/I*), and the Labor 9rbiter's *ecision of 1= 9u!ust 199> is
R)IN/$9$)*. %rivate respondent is directed to reinstate petitioners to their former positions "ithout loss of seniorit#
ri!hts and "ith full back "a!es, as "ell as to pa# their monetar# benefits in accordance "ith the computation made b#
Labor 9rbiter )merson C. $umanon in his *ecision of 1= 9u!ust 199>. 2o"ever, insofar as 9rturo -animtim and ).e7uiel
-animtim are concerned, this case is remanded to the Labor 9rbiter for purposes of determinin! the amounts the# received
as consideration for their 7uitclaims and thereafter deductin! these amounts from their monetar# a"ards. No costs.
/< <R*)R)*.
G.R. No. 12100, January 28, 1998
ROEO LAGATIC, petitioner,
RO2AS, JES*S GO, GRACE LI*SON, an$ ANDRE4 LI*SON, respondents.

%etitioner seeks, in this petition for certiorari under Rule >=, the reversal of the resolution of the National Labor Relations
Commission dated -a# 10, 199=, affirmin! the 8ebruar# 1,, 1991, decision of Labor 9rbiter Ricardo C. Nora findin! that
petitioner had been validl# dismissed b# private respondent Cit#land *evelopment Corporation (hereafter referred to as
Cit#land) and that petitioner "as not entitled to separation pa#, premium pa# and overtime pa#.
$he facts of the case are as follo"s&
%etitioner Romeo La!atic "as emplo#ed in -a# 19:> b# Cit#land, first as a probationar# sales a!ent, and later on as a
marketin! specialist. 2e "as tasked "ith solicitin! sales for the compan#, "ith the correspondin! duties of acceptin! callA
ins, referrals, and makin! client calls and cold calls. Cold calls refer to the practice of prospectin! for clients throu!h the
telephone director#. Cit#land, believin! that the same is an effective and costAefficient method of findin! clients, re7uires all
its marketin! specialists to make cold calls. $he number of cold calls depends on the sales !enerated b# each& more sales
mean less cold calls. Like"ise, in order to assess cold calls made b# the sales staff, as "ell as to determine the results
thereof, Cit#land re7uires the submission of dail# pro!ress reports on the same.
<n <ctober 00, 1991, Cit#land issued a "ritten reprimand to petitioner for his failure to submit cold call reports for
/eptember 1, <ctober 1 and 1, 1991. $his not"ithstandin!, petitioner a!ain failed to submit cold call reports for
/eptember 0, =, :, 1, 11, 10, 1=, 1,, 1:, 19, 0, 00, and 0:, as "ell as for <ctober >, :, 9, 1, 10, 16 and 11, 1990.
%etitioner "as re7uired to e.plain his inaction, "ith a "arnin! that further nonAcompliance "ould result in his termination
from the compan#. In a repl# dated <ctober 1:, 1990, petitioner claimed that the same "as an honest omission brou!ht
about b# his concentration on other aspects of his 3ob. Cit#land found said e.cuse inade7uate and, on November 9, 1990,
suspended him for three da#s, "ith a similar "arnin!.
Not"ithstandin! the aforesaid suspension and "arnin!, petitioner a!ain failed to submit cold call reports for 8ebruar# =, >,
:, 1 and 10, 1996. 2e "as verball# reminded to submit the same and "as even !iven up to 8ebruar# 1,, 1996 to do so.
Instead of compl#in! "ith said directive, petitioner, on 8ebruar# 1>, 1996, "rote a note, ($< 2)LL ?I$2 C<L* C9LL/V
?2< C9R)/T( and e.hibited the same to his coAemplo#ees. $o "orsen matters, he left the same l#in! on his desk "here
ever#one could see it.
<n 8ebruar# 06, 1996, petitioner received a memorandum re7uirin! him to e.plain "h# Cit#land should not make !ood its
previous "arnin! for his failure to submit cold call reports, as "ell as for issuin! the "ritten statement aforementioned. <n
8ebruar# 01, 1996, he sent a letterArepl# alle!in! that his failure to submit cold call reports should trot be deemed as !ross
insubordination. 2e denied an# kno"led!e of the dama!in! statement, ($< 2)LL ?I$2 C<L* C9LL/V(
8indin! petitioner !uilt# of !ross insubordination, Cit#land served a notice of dismissal upon him on 8ebruar# 0>, 1996.
9!!rieved b# such dismissal, petitioner filed a complaint a!ainst Cit#land for ille!al dismissal, ille!al deduction,
underpa#ment, overtime and rest da# pa#, dama!es and attorne#'s fees. $he labor arbiter dismissed the petition for lack of
merit. <n appeal, the same "as affirmed b# the NLRC4 hence the present recourse.
%etitioner raises the follo"in! issues&
1. ?2)$2)R <R N<$ R)/%<N*)N$ NLRC ER9I)LJ 9;D/)* I$/
*I/CR)$I<N 1N N<$ 8IN*INE $29$ %)$I$I<N)R ?9/ ILL)E9LLJ
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$he petition lacks merit.
$o constitute a valid dismissal from emplo#ment, t"o re7uisites must be met, namel#& (1) the emplo#ee must be afforded
due process, and (0) the dismissal must be for a valid cause.
In the case at bar, petitioner contends that his termination "as
ille!al on both substantive and procedural aspects. It is his submission that the failure to submit a fe" cold calls does not
7ualif# as "illful disobedience, as, in his e.perience, cold calls are one of the least effective means of solicitin! sales. 2e
thus asserts that a couple of cold call reports need not be accorded such tremendous si!nificance as to "arrant his dismissal
for failure to submit them on time.
$hese ar!uments are specious. %etitioner loses si!ht of the fact that ((e).cept as provided for, or limited b#, special la"s, an
emplo#er is free to re!ulate, accordin! to his discretion and 3ud!ment, all aspects of emplo#ment.(
)mplo#ers ma#, thus,
make reasonable rules and re!ulations for the !overnment of their emplo#ees, and "hen emplo#ees, "ith kno"led!e of an
established rule, enter the service, the rule becomes a part of the contract of emplo#ment.
It is also !enerall# reco!niBed
that compan# policies and re!ulations, unless sho"n to be !rossl# oppressive or contrar# to la", are !enerall# valid and
bindin! on the parties and must be complied "ith.
(Corollaril#, an emplo#ee ma# be validl# dismissed for violation of a
reasonable compan# rule or re!ulation adopted for the conduct of the compan# business. 9n emplo#er cannot rationall# be
e.pected to retain the emplo#ment of a person "hose . . . lack of re!ard for his emplo#er's rules . . . has so plainl# and
completel# been bared.(
%etitioner's continued infraction of compan# polic# re7uirin! cold call reports, as evidenced b#
the 0: instances of nonAsubmission of aforesaid reports, 3ustifies his dismissal. 2e cannot be allo"ed to arro!ate unto
himself the privile!e of settin! compan# polic# on the effectivit# of solicitation methods. $o do so "ould be to sanction
oppression and the selfAdestruction of the emplo#er.
-oreover, petitioner made it "orse for himself "hen he "rote the statement, ($< 2)LL ?I$2 C<L* C9LL/V ?2<
C9R)/T( ?hen re7uired to e.plain, he merel# denied all# kno"led!e of the same. Cit#land, on the other hand, submitted
the affidavits of his coAemplo#ees attestin! to his authorship of the same. %etitioner's onl# defense is denial. $he rule,
ho"ever, is that denial, if unsubstantiated b# clear and convincin! evidence, is ne!ative and selfAservin! evidence "hich has
no "ei!ht in la".
-ore tellin!, petitioner, "hile makin! much capital out of his lack of opportunit# to confront the
affiants, never, in all of his pleadin!s, cate!oricall# denied "ritin! the same. 2e onl# denied kno"led!e of the alle!ation
that he issued such a statement.
;ased on the fore!oin!, "e find petitioner !uilt# of "illful disobedience. ?illful disobedience re7uires the concurrence of
at least t"o re7uisites& the emplo#ee's assailed conduct must have been "illful or intentional, the "illfulness bein!
characteriBed b# a "ron!ful and perverse attitude4 and the order violated must have been reasonable, la"ful, made kno"n to
the emplo#ee and must pertain to the duties "hich he had been en!a!ed to dischar!e.
%etitioner's failure to compl# "ith Cit#land's polic# of re7uirin! cold call reports is clearl# "illful, !iven the 0: instances of
his failure to do so, despite a previous reprimand and suspension. -ore than that, his "ritten statement sho"s his open
defiance and disobedience to la"ful rules and re!ulations of the compan#. Like"ise, said compan# polic# of re7uirin! cold
calls and the concomitant reports thereon is clearl# reasonable and la"ful, sufficientl# kno"n to petitioner, and in
connection "ith the duties "hich he had been en!a!ed to dischar!e. $here is, thus, 3ust cause for his dismissal.
<n the procedural aspect, petitioner claims that he "as denied due process. ?ell settled is the dictum that the t"in
re7uirements of notice and hearin! constitute the elements of due process in the dismissal of emplo#ees. $hus, the emplo#er
must furnish the emplo#ee "ith t"o "ritten notices before the termination of emplo#ment can be effected. $he first apprises
the emplo#ee of the particular acts or omissions for "hich his dismissal is sou!ht4 the second informs him of the emplo#er's
decision to dismiss him.
In the case at bar, petitioner "as notified of the char!es a!ainst him in a memorandum dated 8ebruar# 19, 1996, "hich he
received on 8ebruar# 06, 1996. 2e submitted a letterArepl# thereto on 8ebruar# 01, 1996, "herein he asked that his failure
to submit cold call reports be not interpreted as !ross insubordination.
2e "as !iven notice of his termination on 8ebruar#
0>, 1996. $his chronolo!# of events clearl# sho" that petitioner "as served "ith the re7uired "ritten notices.
Nonetheless, petitioner contends that he has not been !iven the benefit of an effective hearin!. 2e alle!es that he "as not
ade7uatel# informed of the results of the investi!ation conducted b# the compan#, nor "as he able to confront the affiants
"ho attested to his "ritin! the statement, ($< 2)LL ?I$2 C<L* C9LL/V( ?hile "e have held that in dismissin!
emplo#ees, the emplo#ee must be afforded ample opportunit# to be heard, (ample opportunit#( connotin! ever# kind of
assistance that mana!ement must afford the emplo#ee to enable him to prepare ade7uatel# for his defense,
it is also true
that the re7uirement of a hearin! is complied "ith as lon! as there "as an opportunit# to be heard, and not necessaril# that
an actual hearin! be conducted.
%etitioner had an opportunit# to be heard as he submitted a letterArepl# to the char!e. 2e,
ho"ever, adduced no other evidence on his behalf. In fact, he admitted his failure to submit cold call reports, pra#in! that
the same be not considered as !ross insubordination. 9s held b# this Court in /ernardo vs. NLRC,
there is no necessit#
for a formal hearin! "here an emplo#ee admits responsibilit# for an alle!ed misconduct. 9s to the "ritten statement, ($<
2)LL ?I$2 C<L* C9LL/V,( petitioner merel# denied kno"led!e of the same. 2e failed to submit controvertin!
evidence thereon althou!h the memorandum of 8ebruar# 19, 1996, clearl# char!ed that he had sho"n said statement to
several sales personnel. *enials are "eak forms of defenses, particularl# "hen the# are not substantiated b# clear and
convincin! evidence. Eiven the fore!oin!, "e hold that petitioner's constitutional ri!ht to due process has not been violated.
9s re!ards the second issue, petitioner contends that he is entitled to amounts ille!all# deducted from his commissions, to
unpaid overtime, rest da# and holida# premiums, to moral and e.emplar# dama!es, as "ell as attorne#'s fees and costs.
%etitioner anchors his claim for ille!al deductions of commissions on Cit#land's formula for determinin! commissions, vi#&
C<--I//I<N/ X Credits )arned (C)) less CD-DL9$II) N)E9$II)
(CN) less 9-<DN$/ R)C)II)* (9R)
X (C) A CN) A 9R "here C) X -onthl# /ales Iolume .
Commission Rate (CR)
9R X -onthl# Compensation5.,=
CR X 1.=O
Dnder said formula, an increase in salar# "ould entail an increase in 9R, thus diminishin! the amount of commissions that
petitioner "ould receive. %etitioner construes the same as violative of the nonAdiminution of benefits clause embodied in the
"a!e orders applicable to petitioner. Inasmuch as Cit#land has paid petitioner commissions based on a hi!her 9R each time
there has been a "a!e increase, the difference bet"een the ori!inal 9R and the subse7uent 9Rs have been vie"ed b#
petitioner as ille!al deductions, to "it&
%etitioner even !oes as far as to claim that "ith the use of Cit#land's formula, he is indebted to the compan# in the amount
of %1,11., illustrated as follo"s&
%etitioner' s ;asic /alar# X % 1,06.
X 1,06.5.,=
9.R. X =,>1.
%etitioner's ;asic /alar# F 9R X % 1,11.
?hile it is true that an increase in salar# "ould cause an increase in 9R, "ith the same bein! deducted from credits earned,
thus lessenin! his commissions, the fact remains that petitioner still receives his basic salar# "ithout deductions. %etitioner's
ar!ument that he is indebted to respondent b# %1,11. is fallacious as his basic salar# remains the same and he continues
to receive the same, re!ardless of his collections. $he failure to attain a C) e7uivalent to the 9R of %=,>1. onl# means
that the difference "ould be credited to his CN for the ne.t month. Clearl#, the purpose of the same is to encoura!e sales
personnel to accelerate their sales in order for them to earn commissions.
9dditionall#, there is no la" "hich re7uires emplo#ers to pa# commissions, and "hen the# do so, as stated in the letterA
opinion of the *epartment of Labor and )mplo#ment dated 8ebruar# 19, 1996, (there is no la" "hich prescribes a method
for computin! commissions. $he determination of the amount of commissions is the result of collective bar!ainin!
ne!otiations, individual emplo#ment contracts or established emplo#er practice.(
/ince the formula for the computation
of commissions "as presented to and accepted b# petitioner, such prescribed formula is in order. 9s to the alle!ation that
said formula diminishes the benefits bein! received b# petitioner "henever there is a "a!e increase, it must be noted that
his commissions are not meant to be in a fi.ed amount. In fact, there "as no assurance that he "ould receive an#
commission at all. NonAdiminution of benefits, as applied here, merel# means that the compan# ma# not remove the
privile)e of sales personnel to earn a commission, not that the# are entitled to a fi.ed amount thereof.
?ith respect to petitioner's claims for overtime pa#, rest da# pa# and holida# premiums, Cit#land maintains that /aturda#
and /unda# callAins "ere voluntar# activities on the part of sales personnel "ho "anted to realiBe more sales and thereb#
earn more commissions. It is their contention that sales personnel "ere clamorin! for the (privile!e( to attend /aturda# and
/unda# callAins, as "ell as to entertain "alkAin clients at pro3ect sites durin! "eekends, that Cit#land had to sta!!er the
schedule of sales emplo#ees to !ive ever#one a chance to do so. ;ut simultaneousl#, Cit#land claims that the same "ere
optional because callAins and "alkAins "ere not scheduled ever# "eekend. If there reall# "ere a clamor on the part of sales
staff to (voluntaril#( "ork on "eekends, so much so that Cit#land needed to schedule them, ho" come no callAins or "alkA
ins "ere scheduled on some "eekendsT
In addition to the above, the labor arbiter and the NLRC sanctioned respondent's practice of offsettin! rest da# or holida#
"ork "ith e7uivalent time on re!ular "orkda#s on the !round that the same is authoriBed b# *epartment <rder 01, /eries of
199. 9s correctl# pointed out b# petitioner, said *.<. "as misapplied in this case. $he *.<. involves the shortenin! of the
"ork"eek from si. da#s to five da#s but "ith prolon!ed hours on those five da#s. Dnder this scheme, nonApa#ment of
overtime premiums "as allo"ed in e.chan!e for lon!er "eekends for emplo#ees. In the instant case, petitioner's "ork"eek
"as never compressed. Instead, he claims pa#ment for "ork over and above his normal = 150 da#s of "ork in a "eek.
9ppl#in! b# analo!# the principle that overtime cannot be offset b# undertime, to allo" offAsettin! "ould pre3udice the
"orker. 2e "ould be deprived of the additional pa# for the rest da# "ork he has rendered and "hich is utiliBed to offset his
e7uivalent time off on re!ular "orkda#s. $o allo" Cit#land to do so "ould be to circumvent the la" on pa#ment of
premiums for rest da# and holida# "ork.
Not"ithstandin! the fore!oin! discussion, petitioner failed to sho" his entitlement to overtime and rest da# pa# due, to the
lack of sufficient evidence as to the number of da#s and hours "hen he rendered overtime and rest da# "ork. )ntitlement to
overtime pa# must first be established b# proof that said overtime "ork "as actuall# performed, before an emplo#ee ma#
avail of said benefit.
$o support his alle!ations, petitioner submitted in evidence minutes of meetin!s "herein he "as
assi!ned to "ork on "eekends and holida#s at Cit#land's housin! pro3ects. /uffice it to sa# that said minutes do not prove
that petitioner actuall# "orked on said dates. It is a basic rule in evidence that each part# must prove his affirmative
$his petitioner failed to do. 2e e.plains his failure to submit more concrete evidence as bein! due to the
decision rendered b# the labor arbiter "ithout resolvin! his motion for the production and inspection of documents in the
control of Cit#land. %etitioner convenientl# for!ets that on +anuar# 0,, 1991, he a!reed to submit the case for decision
based on the records available to the labor arbiter. $his amounted to an abandonment of aboveAsaid motion, "hich "as then
pendin! resolution.
Lastl#, "ith the findin! that petitioner's dismissal "as for a 3ust and valid cause, his claims for moral and e.emplar#
dama!es, as "ell as attorne#'s fees, must fail.
?2)R)8<R), premises considered, the assailed Resolution is 988IR-)* and this petition is hereb# *I/-I//)* for
lack of merit. Costs a!ainst petitioner.
/< <R*)R)*.
G.R. No. 767,6 Ju;y 27, 1987
$his is a petition to revie" the -a# 1>, 19:> resolution of respondent National Labor Relations Commission (NLRC)
affirmin! the Labor 9rbiter's order in NLRC Case No. NCRA,61>0:6. $he sole issue raised is the proper basis for the
computation of back"a!es in favor of an ille!all# dismissed emplo#ee.
$he facts of the case are simple and uncontroverted.
<n +ul# 11, 19:6, a complaint for ille!al dismissal "as filed b# respondent Re#naldo ;ode!as, a!ainst petitioner *urabuilt,
a tire recappin! compan#.
In a decision rendered b# the Labor 9rbiter on 8ebruar# 16, 19:1, the private respondent "as ordered reinstated to his
former position "ith full back"a!es, from the time he "as terminated up to the time he is actuall# reinstated, "ithout loss of
seniorit# ri!hts and benefits accruin! to him.
$he petitioners failed to file a seasonable appeal and entr# of final 3ud!ment "as made on +ul# :, 19:=.
<n 9u!ust :, 19:=, the 9ctin! Chief of Research and Information and the Corporation 9uditin! ).aminer of the then
-inistr# of Labor and )mplo#ment submitted a computation of back"a!es, )C<L9, 16th month pa#, sick and vacation
leave benefits in favor of Re#naldo ;ode!as in the total amount of %01,61>.6:.
$he petitioner filed its opposition to the computation on the !round that it contemplated a strai!ht computation of t"ent# si.
(0>) "orkin! da#s in one month "hen the period covered b# the computation "as intermittentl# interrupted due to fre7uent
bro"nouts and machine trouble and that respondent ;ode!as had onl# a total of 0=.,= da#s of attendance in 19:0 due to
absences. 9ccordin! to the petitioner, ;ode!as is entitled onl# to the amount of %6,:61.= broken do"n as follo"s& salaries
F %1,996.4 )C<L9 F %1,166.=, and 16th month pa# F %1,.==.
<n <ctober 06, 19:=, the Labor 9rbiter denied the opposition to the computation. $he petitioner appealed to the NLRC
"hich, in an order dated -a# 1>, 19:>, affirmed the order of the Labor 9rbiter and dismissed the appeal.
Claimin! !rave abuse of discretion on the part of the public respondents, *urabuilt filed the instant petition.
;ack"a!es, in !eneral, are !ranted on !rounds of e7uit# for earnin!s "hich a "orker or emplo#ee has lost due to his
dismissal from "ork (Ne" -anila Cand# ?orkers Dnion (N9C<N?9A%98LD v. CIR, :> /CR9 6,).
$he !eneral principle is that an emplo#ee is entitled to receive as back"a!es all the amounts he ma# have lost startin! from
the date of his dismissal up to the time of his reinstatement (Capital Earment Corporation v. <ple, 11, /CR9 1,64 Ne"
-anila Cand# ?orkers' Dnion (N9C<N?9A%98LD) v. CIR, supra).
In a line of cases, this Court has established a polic#! the amount of back"a!es to a 3ust and reasonable level without
9ualification or deduction (Insular Life 9ssurance Co., Ltd. )mplo#ees' 9ssociationAN9$D v. Insular Life 9ssurance Co.,
Ltd., ,> /CR9 =14 8eati Dniversit# Club v. 8eati Dniversit#, =: /CR9 69=4 -ercur# *ru! Co., Inc. v. CIR, => /CR9
>91). $he respondents center their attention on the above underlined portion of this polic#. 2ence, their contention that the
deductions cited b# the petitioners cannot be made.
In their bid to recover a !reater amount of back"a!es, the rationale of the polic# has escaped the respondents' consideration.
In nsular Life Assurance +mplo%ees Association-&A0: v. nsular Life Assurance Co., Ltd. (,> /CR9 =) "e held that to
fi. the amount of back"a!es "ithout 7ualification or deduction simpl# means that the "orkers are to be paid their
back"a!es fi.ed as of the time of their dismissal or strike "ithout deduction for their earnin!s else"here durin! their la"A
off and "ithout 7ualification of their back"a!es as thus fi.ed4 i.e. un7ualified b# an# "a!e increases or other benefits that
ma# have been received b# their coA"orkers "ho "ere not dismissed or did not !o on strike. $he principle is 3ustified (as a
realistic, reasonable and mutuall# beneficial solution for it relieves the emplo#ees from provin! their earnin!s durin! their
la"Aoffs and the emplo#er from submittin! counter proofs. It "as meant to obviate the t"in evils of Idleness on the part of
the emplo#ees and attrition and undue dela# in satisf#in! the a"ard on the part of the emplo#er( (Ne" -anila Cand#
?orkers Dnion N9C<N?9A%98LD v. CIR supra). $he same "as not to establish an infle.ible rule of computation of an#
;ack"a!es due an emplo#ee.
$he a!eAold rule !overnin! the relation bet"een labor and capital, or mana!ement and emplo#ee of a (fair da#'s "a!e for a
fair da#'s labor( remains as the basic factor in determinin! emplo#ees' "a!es, and for that matter back"a!es. If there is no
"ork performed b# the emplo#ee there can be no "a!e or pa# unless, of course, the laborer "as able, "illin! and read# to
"ork but "as ille!all# locked out, or suspended (/// v. /// /upervisors DnionACDEC<, 11, /CR9 ,1>).
$he ille!al dismissal of the private respondent is conceded b# the petitioner. It is "illin! to pa# back"a!es. 2o"ever, the
petitioner ar!ues that for da#s "here no "ork "as re7uired and could be done b# its emplo#ees, no "a!es could have been
earned and, thereafter, lost b# said emplo#ees to 3ustif# an a"ard of back"a!es. ?e 7uote "ith approval the /olicitor
Eeneral's comment,
to "it&
8rom the indubitable facts on record, it appears that petitioners have valid reasons to claim that certain da#s should
not be considered da#s "orked for purposes of computin! private respondent's back"a!es since their business "as
not in actual operation due to bro"nouts or po"er interruption and the retrenchment of "orkers the# had durin! the
period of private respondent's dismissal.
It cannot be denied that durin! the past #ears particularl# in 19:6, there "as chronic electrical po"er interruption
resultin! to disruption of business operations. $o alleviate the situation, the !overnment thru the -inistr# of $rade
and Industr# called on the industrial sector to resort to the soAcalled Ioluntar# Loan Curtailment %lan (or ILC%),
"hereb# bro"nouts or electrical po"er interruption "as scheduled b# area. $he pro!ram "hile it ma# have been
called 1. voluntar#( "as not so as electrical po"er consumers had no choice then due to the prevailin! ener!#
%etitioners heedin! the !overnment's call, participated in the ILC% as indicated in their statement of conformit#
dated November 06, 19:0. $hus, be!innin! -arch 01, 19:6 and ever# ?ednesda# thereafter, petitioner's business
("hich indicentall# is recappin! rubber tires) "as not in actual operation. No less than the former -inister of $rade
and Industr# e.pressed his !ratitude to petitioners for participatin! in the ILC%. %etitioners substantiated claim
therefore, that the da#s durin! "hich the# "ere not in operation due to the ILC% should be e.cluded in the number
of da#s "orked for purposes of computin! private respondents back"a!es stands reasonable and should have been
considered b# the corporation auditin! e.aminer..avvphi.
-oreover, as earl# as -a# 19,:, the -inistr# of Labor and )mplo#ment, thru %olic# Instruction No. 6>, has said
that F
0. ;ro"nouts runnin! for more than t"ent# minutes ma# not be treated as hours "orked provided that an# of the
follo"in! conditions are present4
a) $he emplo#ees can leave their "ork place or !o else"here "hether "ithin or "ithout the "ork
premises4 or
b) $he emplo#ees can use the time effectivel# for their o"n interest.
It is of record that durin! electrical po"er interruptions, petitioners business "as not in operation. $his "as never
disputed b# private respondent.
%etitioners' claim that the period (*ecember 19:6) durin! "hich the# effected retrenchment of "orkers o"in! to
economic crisis then prevailin! like"ise appears plausible. $here is substantial evidence consistin! of reports to
-<L) and /ocial /ecurit# /#stem sho"in! that petitioners had laid off "orkers due to lack of ra" materials. $he
petitioners pa#rolls submitted to support their ob3ection to computation indicate that the number of "orkin! da#s
"as reduced from the normal "eekl# si. "orkin! da#s to four "orkin! da#s for a !reat number of petitioners'
"orkers. <bviousl#, private respondent could not have been amon! those laid off, as at that time he "as alread#
dismissed b# petitioner. (Rollo, pp. 61A61).
$hus, "e have held that "here the failure of "orkers to "ork "as not due to the emplo#er's fault, the burden of economic
loss suffered b# the emplo#ees should not be shifted to the emplo#er. )ach part# must bear his o"n loss (/// v. ///
/upervisors' DnionACDEC<, supra4 %anA9merican ?orld 9ir"a#s, Inc. v. CIR, 1, /CR9 :16). 9s pointed out b# the
/olicitor Eeneral F
... to allo" pa#ment of back"a!es of %01,61>.>: as ordered b# public respondents instead of %6,:61.1> as
petitioners claim and "hich appears to be 3ust and reasonable under the circumstances of this case "ould not onl#
be unconscionable but "ould be !rossl# unfair to other emplo#ees "ho "ere not paid "hen petitioners' business
"as not in operation. (Rollo, p. 6=).
Indeed, it "ould neither be fair nor 3ust to allo" respondent to recover somethin! he has not earned and could not have
earned and to further penaliBe the petitioner compan# over and above the losses it had suffered due to lack of ra" materials
and the ener!#Asavin! pro!rams of the !overnment. $he private respondent cannot be allo"ed to enrich himself at the
e.pense of the petitioner compan#. $he computation of back"a!es should be based on dail# rather than on monthl# pa#
schedules "here, as in the case at bar, such basis is more realistic and accurate. (Compania -aritima v. Dnited /eamen's
Dnion of the %hilippines, >= /CR9 696).
In conclusion, "e a!ain 7uote the /olicitor Eeneral's comment&
8inall#, "hat stren!thens petitioners claim for miti!ated liabilit# is their evident !ood faith as manifested b# their
reinstatement of private respondent "hile the case for ille!al dismissal "as still pendin! and their "illin!ness to
pa# back"a!es. ?hile it is true that as a !eneral rule order of reinstatement carries "ith it an a"ard of back"a!es
(9rt. 0:, Labor Code) this 2onorable Court did not onl# miti!ate but absolved emplo#ers from liabilit# of
back"a!es "here !ood faith is evident (8indla# -illar $imber Co. v. %L9/LD, > /CR9 0>& Crom"ell Com.
)mplo#ees C Laborers Dnion v. CIR, 16 /CR9 0=9, Norton and 2arrison Labor Dnion v. 2arrison Co. Inc. 1=
/CR9 614 %9L v. %9L)9, =, /CR9 1:94 CruB v. -<L), 10 /CR9 1=). $here is no indication, to paraphrase
this 2onorable Court's rulin! in %antranco North ).press Inc. v. NLRC (10> /CR9 =0>) that private respondent
"as a (victim of arbitrar# and hi!h handed action. Rollo, pp. 61A6=).
?2)R)8<R), in vie" of the fore!oin!, the petition is hereb# ER9N$)*. $he order of the Labor 9rbiter, 9melia -.
Eulo# in NLRC Case No. NCRA,A61>0:6, dated <ctober 06, 19:=, as affirmed b# the NLRC is /)$ 9/I*). $he
petitioner is ordered to pa# private respondent his back"a!es from the time he "as terminated up to the time he "as
actuall# reinstated computed on the basis of the number of da#s "hen petitioner's business "as in actual operation. $he
number of da#s "here no "ork "as re7uired and could be done b# petitioner's emplo#ees on account of shutdo"ns due to
electrical po"er interruptions, machine repair, and lack of ra" materials are not considered hours "orked for purposes of
computin! the petitioner's obli!ation to respondent emplo#ee. In no case shall the a"ard e.ceed three #ear's backpa# as
above computed.
/< <R*)R)*.
G.R. No. 78210 ."/ruary 28, 1989
.R*IT COR)ORATION, respondents.
7oronado /. Apu#en and 1ose C. +spinas for petitioners.
0he $olicitor 5eneral for public respondent.
Domin)ue# & Paderna Law Offices Co. for private respondent.

)ARAS, J.:
$his is a petition for revie" on certiorari of the decision of the National Labor Relations Commission dated *ecember 10,
19:> in NLRC Case No. 060, -CAUIA:1 entitled $eofilo 9rica et al. vs. /tandard (%hil.) 8ruits Corporation (/$9N8ILC<)
"hich affirmed the decision of Labor 9rbiter %edro C. Ramos, NLRC, /pecial $ask 8orce, Re!ional 9rbitration ;ranch No.
UI, *avao Cit# dismissin! the claim of petitioners.
$his case stemmed from a complaint filed on 9pril 9, 19:1 a!ainst private respondent /tanfilco for assembl# time, moral
dama!es and attorne#'s fees, "ith the aforementioned Re!ional 9rbitration ;ranch No. UI, *avao Cit#.
9fter the submission b# the parties of their respective position papers (9nne. (C(, pp. 6A14 9nne. (*(, Rollo, pp. 11A=),
Labor 9rbiter %edro C. Ramos rendered a decision dated <ctober 9, 19:= (9nne. ')', Rollo, pp. =1A=:) in favor of private
respondent /$9N8ILC<, holdin! that&
Eiven these facts and circumstances, "e cannot but a!ree "ith respondent that the pronouncement in that
earlier case, i.e. the thirt#Aminute assembl# time lon! practiced cannot be considered "aitin! time or "ork
time and, therefore, not compensable, has become the la" of the case "hich can no lon!er be disturbed
"ithout doin! violence to the timeA honored principle of res-,udicata.
?2)R)8<R), in vie" of the fore!oin! considerations, the instant complaint should therefore be, as it is
hereb#, *I/-I//)*.
/< <R*)R)*. (Rollo, p. =:)
<n *ecember 10, 19:>, after considerin! the appeal memorandum of complainant and the opposition of respondents, the
8irst *ivision of public respondent NLRC composed of 9ctin! %residin! Commissioner 8ranklin *rilon, Commissioner
Conrado -a!la#a, Commissioner Rosario *. )ncarnacion as -embers, promul!ated its Resolution, upholdin! the Labor
9rbiters' decision. $he Resolution's dispositive portion reads&
'/urel#, the customar# functions referred to in the aboveA 7uoted provision of the a!reement includes the
lon!Astandin! practice and institutionaliBed nonAcompensable assembl# time. $his, in effect, estopped
complainants from pursuin! this case.
$he Commission cannot i!nore these hard facts, and "e are constrained to uphold the dismissal and
closure of the case.
?2)R)8<R), let the appeal be, as it is hereb# dismissed, for lack of merit.
/< <R*)R)*. (9nne. (2(, Rollo, pp. :>A:9).
<n +anuar# 1=, 19:,, petitioners filed a -otion for Reconsideration "hich "as opposed b# private respondent (9nne. (I(,
Rollo, pp. 9A914 9nne. + Rollo, pp. 90A9>).
%ublic respondent NLRC, on +anuar# 6, 19:,, issued a resolution den#in! for lack of merit petitioners' motion for
reconsideration (9nne. (W(, Rollo, p. 9,).
2ence this petition for revie" on certiorari filed on -a# ,, 19:,.
$he Court in the resolution of -a# 1, 19:: !ave due course to this petition.
%etitioners assi!n the follo"in! issues&
1) ?hether or not the 6Aminute activit# of the petitioners before the scheduled "orkin! time is
compensable under the Labor Code.
0) ?hether or not res ,udicata applies "hen the facts obtainin! in the prior case and in the case at bar are
si!nificantl# different from each other in that there is merit in the case at bar.
6) ?hether or not there is finalit# in the decision of /ecretar# <ple in vie" of the compromise a!reement
novatin! it and the "ithdra"al of the appeal.
1) ?hether or not estoppel and laches lie in decisions for the enforcement of labor standards (Rollo, p.
%etitioners contend that the preliminar# activities as "orkers of respondents /$9N8ILC< in the assembl# area is
compensable as "orkin! time (from =&6 to >& o'clock in the mornin!) since these preliminar# activities are necessaril#
and primaril# for private respondent's benefit.
$hese preliminar# activities of the "orkers are as follo"s&
(a) 8irst there is the roll call. $his is follo"ed b# !ettin! their individual "ork assi!nments from the
(b) $hereafter, the# are individuall# re7uired to accomplish the Laborer's *ail# 9ccomplishment Report
durin! "hich the# are often made to e.plain about their reported accomplishment the follo"in! da#.
(c) $hen the# !o to the stockroom to !et the "orkin! materials, tools and e7uipment.
(d) Lastl#, the# travel to the field brin!in! "ith them their tools, e7uipment and materials.
9ll these activities take 6 minutes to accomplish (Rollo, %etition, p. 11).
Contrar# to this contention, respondent avers that the instant complaint is not ne", the ver# same claim havin! been brou!ht
a!ainst herein respondent b# the same !roup of rank and file emplo#ees in the case of 9ssociated Labor Dnion and /tandard
8ruit Corporation, NLRC Case No. 0>AL/AUIA,> "hich "as filed "a# back 9pril 0,, 19,> "hen 9LD "as the bar!ainin!
a!ent of respondent's rank and file "orkers. $he said case involved a claim for ("aitin! time(, as the complainants
purportedl# "ere re7uired to assemble at a desi!nated area at least 6 minutes prior to the start of their scheduled "orkin!
hours (to ascertain the "ork force available for the da# b# means of a roll call, for the purpose of assi!nment or
reassi!nment of emplo#ees to such areas in the plantation "here the# are most needed.( (Rollo, pp. >1A >=)
Note"orth# is the decision of the -inister of Labor, on -a# 10, 19,: in the aforecited case (9ssociated Labor Dnion vs.
/tandard (%hil.) 8ruit Corporation, NLRC Case No. 0>AL/AUIA,> "here si!nificant findin!s of facts and conclusions had
alread# been made on the matter.
$he -inister of Labor held&
$he thirt# (6)Aminute assembl# time lon! practiced and institutionaliBed b# mutual consent of the parties
under 9rticle II, /ection 6, of the Collective ;ar!ainin! 9!reement cannot be considered as "aitin! time
"ithin the purvie" of /ection =, Rule I, ;ook III of the Rules and Re!ulations Implementin! the Labor
Code. ...
8urthermore, the thirt# (6)Aminute assembl# is a deepl#A rooted, routinar# practice of the emplo#ees, and
the proceedin!s attendant thereto are not infected "ith comple.ities as to deprive the "orkers the time to
attend to other personal pursuits. $he# are not ne" emplo#ees as to re7uire the compan# to deliver lon!
briefin!s re!ardin! their respective "ork assi!nments. $heir houses are situated ri!ht on the area "here
the farm are located, such that after the roll call, "hich does not necessaril# re7uire the personal presence,
the# can !o back to their houses to attend to some chores. In short, the# are not sub3ect to the absolute
control of the compan# durin! this period, other"ise, their failure to report in the assembl# time "ould
3ustif# the compan# to impose disciplinar# measures. $he C;9 does not contain an# provision to this
effect4 the record is also bare of an# proof on this point. $his, therefore, demonstrates the indubitable fact
that the thirt# (6)Aminute assembl# time "as not primaril# intended for the interests of the emplo#er, but
ultimatel# for the emplo#ees to indicate their availabilit# or nonAavailabilit# for "ork durin! ever#
"orkin! da#. (9nne. ()(, Rollo, p. =,).
9ccordin!l#, the issues are reduced to the sole 7uestion as to "hether public respondent National Labor Relations
Commission committed a !rave abuse of discretion in its resolution of *ecember 1,, 19:>.
$he facts on "hich this decision "as predicated continue to be the facts of the case in this 7uestioned resolution of the
National Labor Relations Commission.
It is clear that herein petitioners are merel# reiteratin! the ver# same claim "hich the# filed throu!h the 9LD and "hich
records sho" had alread# lon! been considered terminated and closed b# this Court in E.R. No. LA1:=1. $herefore, the
NLRC can not be faulted for rulin! that petitioners' claim is alread# barred b# res-,udicata.
;e that as it ma#, petitioners' claim that there "as a chan!e in the factual scenario "hich are (substantial chan!es in the
facts( makes respondent firm no" liable for the same claim the# earlier filed a!ainst respondent "hich "as dismissed. It is
thus a.iomatic that the nonAcompensabilit# of the claim havin! been earlier established, constitute the controllin! le!al rule
or decision bet"een the parties and remains to be the law of the case makin! this petition "ithout merit.
9s aptl# observed b# the /olicitor Eeneral that this petition is (clearl# violative of the familiar principle of res ,udicata.
$here "ill be no end to this controvers# if the li!ht of the -inister of Labor's decision dated -a# 10, 19,9 that had lon!
ac7uired the character of finalit# and "hich alread# resolved that petitioners' thirt# (6)Aminute assembl# time is not
compensable, the same issue can be reAliti!ated a!ain.( (Rollo, p. 1:6)
$his Court has held&
In this connection account should be taken of the co!nate principle that res ,udicata operates to bar not
onl# the reliti!ation in a subse7uent action of the issues s7uarel# raised, passed upon and ad3udicated in
the first suit, but also the ventilation in said subse7uent suit of an# other issue "hich could have been
raised in the first but "as not. $he la" provides that 'the 3ud!ment or order is, "ith respect to the matter
directl# ad3ud!ed or as to an# other matter that could have been raised in relation thereto, conclusive
bet"een the parties and their successors in interest b# title subse7uent to the commencement of the
action .. liti!atin! for the same thin! and in the same capacit#.' /o, even if ne" causes of action are
asserted in the second action (e.!. fraud, deceit, undue machinations in connection "ith their e.ecution of
the convenio de transaccion), this "ould not preclude the operation of the doctrine of res ,udicata. $hose
issues are also barred, even if not passed upon in the first. $he# could have been, but "ere not, there
raised. (Ida. de ;uncio v. )state of the late 9nita de Leon, 1=> /CR9 6=0 K19:,L).
-oreover, as a rule, the findin!s of facts of 7uasiA3udicial a!encies "hich have ac7uired e.pertise because their 3urisdiction
is confined to specific matters are accorded not onl# respect but at times even finalit# if such findin!s are supported b#
substantial evidence (/pecial )vents C Central /hippin! <ffice ?orkers Dnion v. /an -i!uel Corporation, 100 /CR9 ==,
K19:6L4 *an!an v. NLRC, 10, /CR9 ,> K19:1L4 %hil. Labor 9lliance Council v. ;ureau of Labor Relations, ,= /CR9 1>0
K19,,L4 -amerto v. Incion!, 11: /CR9 0>= (19:0L4 National 8ederation of Labor Dnion (N98LD) v. <ple, 116 /CR9 101
K19:>L4 )diA/taff ;uilders International, Inc. v. Leo!ardo, +r., 1=0 /CR9 1=6 K19:,L4 9sia"orld %ublishin! 2ouse, Inc. v.
<ple, 1=0 /CR9 019 K19:,L).
$he records sho" that the Labor 9rbiters' decision dated <ctober 9, 19:= (9nne. ()(, %etition) pointed out in detail the
basis of his findin!s and conclusions, and no co!ent reason can be found to disturb these findin!s nor of those of the
National Labor Relations Commission "hich affirmed the same.
%R)-I/)/ C<N/I*)R)*, the petition is *I/-I//)* for lack of merit and the decision of the National Labor Relations
Commission is 988IR-)*.
/< <R*)R)*.