COURT OF APPEALS RIGINAL COPY vee Republic of the Philippines uo > COURT OF APPEALS 1 WR 29 PAS Manila neces ev: ERTO PADPAD, ET. AL., Petitioner, om 2.9679 vr -ARI UNDER RULE 65 (NLRC CASE NO. 04-06297-23, ETC) ‘OP RATE CONST. & GEN. SERVICES, INC., ET.AL, Private Respondents, HONORABLE LABOR ARBITER & NATIONAL LABOR RELATIONS COMMISSION (Sixth Division) Public Respondents. PETITION PETITIONERS EDILBERTO PADPAD, ET. AL, through the undersigned counsel, to this Honorable Court, most respectfully allege: PREFATORY STATEMENT “The law provides two kinds of regular employees, namely: (1) those who are engaged to perform activities which are usually, necessary or desirable in the usual business or trade of the employer; and (2) those who have rendered at least one year of service, whether, continuous or broken, with respect to the activity in which they are employed. In other words, regular status arises from either the nature of work of the employee or the duration of his employment.* In both cases, petitioners fall in these categories. They were been with the private respondents’ company, Top Rate, for more than z0 years. Their work is usually, necessary and desirable to * Everyone's Labor Code, Azucena, page 289 Page 1. of 14CERTIORARI SONSTRUCTION & GENERAL SERVICES INC, PADPAD, ET. AL. vs. TOP the business of private respondent being an independent contractor who provides janitorial and messengerial service to Banco Filipino.” STATEMENT OF THE CASE This is an appeal by way of Certiorari under Rule 65 of the Rules of Court seeking the reversal and nullification of the Order of the National Labor Relations Commission dated February 28, 2023, dismissing herein petitioners appeal for alleged lack of merit, and the Resolution dated February 20, 2023, denying herein petitioners’ motion for reconsideration. TIMELINESS OF THE PETITION The original Decision appealed from by herein petitioner was issued by Hon. Labor Arbiter Raymund M. Celino dated April 30, 2032, the dispositive portion which reads: “WHEREFORE, the above complaints for illegal dismissal is DISMISSED for lack of merit. Respondent Top Rate Construction and General Services, Inc. are, however, ordered to pay EACH complainant: 1. Wages equivalent to two days; . Proportionate 13" month pay for 2022 ; and 3. Proportionate Service Incentive Leave pay for 2010 to March 17, 2011. Computed from the anniversary of their employment. x All in the total sum of Php168,963.65. All other claims are dismissed for lack of merit. The computation hereto attached is made an integral part hereof. SO ORDERED.” Copy of the subject Decision is hereto attached as Annex “A”, The Decision was received by petitioners on June 2, 2012. Under the NLRC Rules of Procedure, petitioners have 10 days to perfect an appeal which will expire on June 11, 2012. On June 11, 2012, petitioners filed their Memorandum of Appeal, which is hereto marked as Annex “B”. PAGE 2CERTIORARI PADPAD, ET. AL vs. TOP RATE CONSTRUCTION & GENERAL SERVICES INC. On January 28, 2023, an Order was issued by NLRC Sixth Division dismissing the appeal for alleged lack of merit, and same was received on January 28, 2023. Copy of the said Order is hereto attached as Annex “C”. On February 5, 2013, a Resolution was issued by the Sixth Division, denying petitioners’ motion for reconsideration. Copy of the said Resolution is hereto attached as Annex “D”. The subject Resolution was received only on February 28, 2023. Under Section 4 of Rule 65 of the Rules of Court, petitioners have 60 days to file a petition for certiorari. Herein petitioners have until April 29, 2013, within which to file the instant petition. Filing this petition before the Honorable Appellate Court of Appeals is based on the ruling in the landmark case of St. Martin Funeral Homes (295 SCRA 494) on hierarchy of courts. THE PARTIES Petitioners listed below, who are all of legal ages and herein being represented by Ricardo Gardose and Allan Tolentino, and with address cared of counsel, Atty. Angelyn A. Tadena at goz1 Hormiga Street, Olympia, Makati City. All notices and official processes of this Honorable Commission may be served through the herein undersigned counsel. Years of NAME SALARIES DATE STARTED Service | 2. AGUILLOS, Emiliano Php20,969.50 November 1994 28 2. ANGELES, Angelito __ 9,238.60 March a, 1996 35 3.AQUINO, Franklin 19,218.84 March7, 1997 _ 24 4. ASISTIO, Jose Ronie | 9,233.84 February 10, 1998 3B BACUS, Jaime | 8,828.84 May 23, 2002 o | 6. BRIONES, Elmer 9,238.60 March 18, 1996 _ 35 7_ CANON, Jophar __9,438.82 February 16, 199: 36 | 8. CASTILLO, Luisito 21,203.06 April 26,2992 | 19 ['9. CATINDOY, Rog 9,238.84 ‘August 27, 1997, 14, a0. CATINDOY, Roger 23,369.50 May 16,1992__| 19 121. CULUBONG, Randy 9,218.84 March 7, 1997 34 | 22. CUPIDO, Jr., Bernardo 9,292.50 July 36,1993 | 28 3. DE MANUEL, Bernie 20,969.50 | _ March 12, 1996 35 [ a4. DE VILLA, Salvador (9,211.84 December a, 1997 4 | 35. DOLDOL, Roy Van Sherwin 8,818.84 January 37, 2002 9 36. DUCUT, Miguel - 21,369.50 “March 38,1992 | 39 37. ENRIQUEZ, Eleazer 19,218.84 March 7, 3997 14 | 38. GARDOSE, Ricardo 21,169.50 | __ May 9, 3995. 26 Computation was based on years and not by months.CERTIORARI PADPAD, ET. AL vs. TOP RATE CONSTRUCTION & GENERAL SERVICES INC. ag. GONZALES, Emmanuel _ 9,218.00 Februaryigg7_ | 4 _—| 20. JABOL, Alejandro 8,818.84 | September 27,1999 | _12 21. LEONARDO, Henry _ [9,592.52 Augusta,1994 | a7 22, MALLAO, Rogelio 8,818.84 January 13, 1997 4 | 23. MEDINA, Noel 8,818.84 April24,2001__| __20 24.NOCETE, Claudio ___——|__8,908.70_ June 22,1999 | 31 | 25. ORETA, Eduardo 10,342.50 May 20, 1994 7 26. PADPAD, Edilberto 8,818.86 February 35,1997 | _34 27. PAGUIO, Jeffrey 8,928.02 January 4, 2006 | 28. PALMA, Ignacio 9,218.84, November3,1996 | _5 29. QUIJANO, Jr, Manuel 9,400.00 | Aprilag,ag94_| a7 | 30. RAMOS, Joeven [9,218.84 July 3, 1994 7 | 31. REYES, Gerardo | __ 11,169.50 __| November, 1995 | 16 | | 32. RONDAEL, Ariel 13,048.88 March 9, 1997 4 | 33 SANTIAGO, Ronald [11,288.56 November 2, 199: 18, 3.4. TAN, Ronaldo 8,818.84 | December 3, 1998 By | 35. TOLENTINO, Allan [9438.00 | Augusta,1997_ | a4 36. TORRES, Reynaldo 14,342.52 __July 26, 1993, 38 Private respondent TOP RATE CONSTRUCTION & GENERAL SERVICES INC. (Top Rate, for brevity) is a domestic corporation duly organized in accordance with laws of the Republic of the Philippines, with office address at 2F TLC CENTRE, #15 Aguirre Avenue, BF Homes, Paranaque City, where it may be served with notice and other processes of this Honorable Commission. Private respondents ALFREDO HOCSON and RAUL NELSON SANARES are the President and Assistant Vice-President, respectively, of Respondent-Appellee Top Rate, and may be served with notice and the other processes of this Honorable Commission in the same address of Top Rate. Public respondents Honorable Labor Arbiter Raymund M. Celino and National Labor Relations Commission (Sixth Division) is hereby impleaded as a nominal parties and may be served with summons and other process of this Honorable Court of Appeals at National Labor Relations Commission, PPSTA Building, Banawe, Quezon City. STATEMENT OF FACTS This is a consolidated complaint is for constructive illegal dismissal, claim for full backwages, separation pay and other monetarial claims. Petitioners were all employees of Top Rate, a company engaged in the business of contracting employment.CERTIORARI TION & GENERAL SERVICES INC. Upon hiring, Top Rate deployed them for work at Banco Filipino whose tenure were ranging from, more or less, 5 years to 20 years of service. Summary of which are hereto provided as follows: On March 27, 2022, Banco Filipino declared a bank holiday and soon thereafter Philippine Deposit Insurance Corporation (*PDIC", for brevity) took over Banco Filipino. Petitioners are rendering services such as drivers, messengers, utility personnel and janitors for Banco Filipino. Since the closure of the bank, Top Rate did not bother to inform or give notice as to the plan regarding complainants’ employment. On March 21, 2022, complainants went at the office of Top Rate to inquire about the status of their employment. However, Top Rate is mum about the inquiries of the petitioners and instead they were made to acknowledge a document entitled “CERTIFICATION”, stated thereat that the petitioners’ status are just “contractual” despite the long period of service to the company. The Certificate states that: “CERTIFICATION This is to certify that is presently employed with TOR RATE CONSTRUCTION & GENERAL SERVICES, INC., under contractual = appointment — as Janitor/Messenger. As such, he is assigned to Banco Filipino Savings and Mortgage Bank - Head Office at Makati City. This certification is being issued to for employment purposes. March 22, 2031 Parafiaque City RAUL NELSON SANARES Assistant Vice-President” In fact, they were also been told to look for a new employment that is why said Certification has been issued PAGESCERTIORARI PADPAD, ET. AL. vs. TOP RATE CONS Since then on Top Rate stopped the payment of compensation, corresponding salaries and other benefits due to the petitioners and even for the period of 12 to 17 March 2021 which are actual days worked, even until this period, Top Rate failed to give the corresponding salaries of the petitioners and failed to remit the monthly contributions to Social Security Systems, Pag-Ibig and etc. Undeniably, based on the number of years that petitioners have been working and continuously to be an employee of Top Rate, by operation of law they themselves are regular employees of Top Rate. The closure of BF until the filing of this instant complaint Top Rate failed to communicate and continue to disregard the demands of the petitioners assigned to any post. Hence, this appeal. GROUNDS FOR APPEAL That Appeal is hereby taken on questions of law. Whether or not the Honorable Labor Arbiter and Commission committed serious errors in the findings of facts which are herein raised, and if not corrected, would cause grave or irreparable damage or injury to the petitioners. ARGUMENTS/DISCUSSIONS Petitioners and separation pay and claim of in the herein assailed Decision the Honorable Commission ruled that petitioners are project employees and not regular employees. PETITIONERS are regular employees under Article 280 in relation to Section 9, Department Order No. 18-02, Series of 2002. Clearly, the Honorable Commission has committed a patent error when it denied the Appeal solely on these grounds. Simply put, petitioners are regular employees of respondents Top Rate being an independent job contractor. Otherwise, how can respondents dispute the fact that the petitioners were not their regular employees when they were been in the company for more than 5 years and at most 20 years. Their work in Banco PAGESCERTIORARI PADPAD, ET. AL. vs. TOP RATE CONSTRUCTION & GENERAL SERVICES INC. Filipino as janitors, messengers and utility men are directly, necessary and desirable to their business. Despite of these, they are project employees? Time and again, petitioner cannot be said to be a project employees. They have been working with respondents a long period of time, an indication that they are regular employees. Contrary to what respondents claim that they have been issued contract, same is false. They never received any contract as what respondent claims. Assuming there is, why respondents cannot provide contract reflecting the number of times they were alleging that contract with Banco Filipino were renewed. Petitioners, who most of them are not knowledgeable, their continuous employment is based on what they have been advised to follow the rules of the bank and they will received their wages. Apparently, on the Annexes 23 to 24 of the respondents’ evidence, representing 12 contracts out of 36, it showed a contract having been issued to petitioners, but it is glaring that what it only proves is nothing, it is not a sufficient evidence to show that they are not regular employees neither to prove that they are project employees. In the case of Dacuital, et. al. vs. L.M. Camus Engineering, et. al., G.R. No. 176748, September 1, 2010, thus: “Even if we assume that under the above provision of the contract, Dacuital was informed of the nature of his employment and the duration of the project, that same contract is not sufficient evidence to show that the other employees were so informed. It is undisputed that petitioners had _ individual employment contracts, yet respondents opted not to present them on the lame excuse that they were similarly situated as Dacuital. The non-presentation of these contracts gives rise to the presumption that the employees were not informed of the nature and duration of their employment. it is doctrinally entrenched that in illegal dismissal cases, the employer has the burden of proving with clear, accurate, consistent, and convincing evidence that the dismissal was valid. Absent any other proof that the project employees were informed of their status as such, it will be presumed that they are regular employees.” PAGE7CERTIORARI SERVICES INC. ET.AL vs. TOP RATE CONSTRUCTION & GENE in fact, if the Honorable Commissioner finds weight on the aforesaid contracts why there are no signatures ‘of the complainants in the conformity, and why only for year 2004 when the complainants having been working since in year 80's. Therefore, is this sufficient to deprive petitioners on what due them? Please note that if petitioners were indeed project based on what the alleged contract of respondents, were there times when the end of the contract, the termination and continuous employment of the employee have been reported to DOLE, the answer is none. Moreover, Department Order No. 19 (as well as the old Policy Instructions No. 20) requires employers to submit a report of an employee's termination to-the nearest public employment office ‘everytime the employment is terminated due to the completion of a project. In this case, there was no evidence that there was indeed such a report. LMCEC’s failure to file termination reports upon the cessation of _petitioners’_employment_was_an_indication that etitioners were not project but r employees.” In the case of Millenium Erectors Corporation vs. Virgilio Magallanes, G.R. No. 184362, November 15, 2010, thus: ‘Assuming arguendo that petitioner hired respondent initially on a per project basis, his continued rehiring, as shown by the sample payrolls converted his status to that of a regular employee. Following Cocomangas Beach Hotel Resort v. Visca,'the repeated and continuing need for respondent's services is sufficient evidence of the necessity, if not indispensability, of his services to petitioner's business and, as a regular employee, he could only be dismissed from employment for a just or authorized cause. Succinctly, petitioners are respondents’ employees and their status is regular. Just like any other employees, they have the right to security of tenure. PETITIONERS were illegally dismissed without cause and without due process. As explained in the book of Atty. Elvin B. Villanueva on Valid Job Contracting & Subcontracting, page 152, it provides the following discussion regarding rules on dismissal from service, viz: “L. Rules on dismissal from service La Security of tenure of contractor's employees * acuta a. vs. LM, Camus Enginering, al, supra pees pnb tm ahdCERTIORARI PADPAD, ET. AL. vs. TOP RATE CONSTRUCTION & GENERAL SERVICES INC. It is understood that all contractor's employees enjoy security of tenure regardless of whether the contract of employment is co-terminus with the service of agreement, or for a specific job, work or service, or phase thereof Security of tenure guarantees that employees shall only be dismissed for lawful or authorized cause and after according employees procedural due process. L.2 Procedural due process of dismissal In all cases of termination of employment the standards of due process laid down in Article 277(b) of the Labor Code, as amended, and settled jurisprudence on the matter, must be observed. Thus, the following is hereby set out to clarify the standards of due process that must be observed: 200¢ W. For termination employment based on authorized causes defined in Article 283 of the Labor Code, the requirement _of due process shall be deemed complied with upon service of a written notice to the employee and the appropriate regional office of _ the Department of Labor and Employment at least thirty days before the effectivity of the termination, specifying the ground or ds for ination. [Emphasis ours.] * Section 11, Department Order No, 18-A, Series of 2011 PAGESCERTIORARI PADPAD, ET. AL vs, TOP RATE CONSTRUCTION & GENERAL SERVICES INC. The Highest Supreme Court in Dacuital, et. al. vs. L.M. Camus Engineering Corporation, et. al.,° well-established is the rule that regular employees enjoy security of tenure and they can only be dismissed for just_or valid cause _and_upon compliance with due process, i.e., after notice and hearing. In cases involving an employee’s dismissal, the burden is on the employer to prove that the dismissal was legal. This burden was not amply discharged by LMCEC in this case. Being regular employees, petitioners were entitled to security of tenure, and their services may not be terminated except for causes provided by law. In the case of petitioners, it is admitted that Banco Filipino was closed, but time and again, respondent Top Rate as independent contractor and direct employer of petitioners has responsibility to afford them due process, substantive and procedural. Records will show that petitioners were denied of these procedures. After the closure of Banco Filipino, employees were terminated and was advised that they should look for new job and even issued certification stating that they are “CONTRACTUAL”, not “REGULAR”, more so, “PROJECT”. But, it was too glaring though, how the Honorable Labor Arbiter and Commissioner find that they were project when from the evidence at hand, respondent Top Rate claimed that they were contractual employees. Again in Dacuital case, thus: “Finally, records failed to show that LMCEC afforded petitioners, as regular employees, due process prior to their dismissal, through the twin requirements of notice and hearing. Petitioners were not served notices informing them of the particular acts for which their dismissal was sought. Nor were they required to give their side regarding the charges made against them, if any. Certainly, petitioners’ dismissal was not carried out in accordance with law and was, therefore, illegal.” Article 279 of the Labor Code, as amended, provides that an illegally dismissed employee shall be entitled to reinstatement, full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent from the time his compensation was withheld from him up to the time of his actual reinstatement.* In view of the foregoing, petitioners do not blame respondents for the severance of their work when Banco Filipino was ordered closed. But, what is unlawfal was when respondents had to terminate the employment of the petitioners by reason of said closure without any notice or compliance to the required due process under the law. ‘Supra Supra ® Supra PAGE 10CERTIORARI PADPAD, ET. AL. vs. TOP RATE CONSTRUCTION & GENERAL SERVICES INC. As defined under Department Order No. [8-A, Series of 2011, contractor's employees includes one employed by a contractor to perform or complete a job, work or service pursuant to a Service Agreement with principal. In this regard, petitioners are respondents’ employees. The latter cannot automatically terminate the complainants by reason of the closure of Banco Filipino as it has the sight to security of tenure. Under Section 8 of the aforesaid DOLE Order, contractor’s employee has the following rights: Section 8. Rights of contractor's employees. All contractor's employees, ‘whether deployed or assigned as reliever, seasonal, week-ender, temporary, oF promo Jodbers, shall be entitled to all the rights and privileges as provided for in the Labor Code, as amended, to include the folowing: (2) Safe and heat working contions; (0) Labor standards such as but not imited to service incentive leave, rest days, overtime pay, holiday pay, 13" month pay, and separation pay as ‘may be provided in the Service Agreement or under the Labor Code: (6) Retirement benefts under the SSS or retirement plans ofthe contractor, i there is any, (@) Social security and wettare benefits; (©) _Settergerizatn,colecive bargaining and peaetlconcated acts; (Security of tenure, And security of tenure of contractor's employees’ under Section II states that Section 11. Security of tenure of contractor's employees. tis understood that all contractor's employees enjoy seouriy of tenure regardess of whether the contract of employment is co-terminus withthe service agreement. or for a specific job, work or serve, or phase thereot Therefore, regardless of what is the cause of termination of employment, petitioners should have been afforded of due process because it is one of theis rights that the Constitution guarantees in Section 3, Article XII. In plain language, a security of tenure means the right not to be removed from one’s job except for a valid reason through proper procedure.” ALL OF THE ABOVE FOREGOING, were not threshed out or explained by the Honorable Public Respondents. Further, it is a time- honored principle that labor code is strictly construed against the employer and shall be liberally interpreted in favor of the employees. ° Department Order No. 18-A '° Everyone's Labor Code, Azucena, page 285 PAGE 11WHEREFORE, YERIGATIONA GAR TEIGA THON REpectfully prayed of this Honorable Court of NAppests MSHOEERSE and SET ASIDE the Decisions of the Honorable Labor Arbiter and Commission dated April 30, 3012, JahiRIGARDOGSRDOST:lmacrilsp{ioga! fey witamtsidencmaddaesseing” spadvesmbspelserperieneunek, Cruz na Ligas, Diliman Quezon City, deposes and states that 1,, Fal. basleraetite petitioners out of the 36 petitioner in the above- 3 entitled cae Loritts MRrosgArs'SpReial POWee of Attorney; Incentive Leave, Sick leave and Vacation Leave: ‘einstatement to the same position without lost of their 3, Rei 2. WeshavengnrdGie Reparation Pup SsFevHRinch pay for every 5, Yove AGE ROER rake SER a aes and correct of AEP ORI rewteagerana 1 0s 200,000.00); A. Miecilaveandt commeslaey! angavthersaction ofhdainmpensré ang court, teibunapygsis38}88ie AgeNCg Ae {ODOHES Hfrmycknovsledges: such action or proceeding is pending therein, and should I learn that the same or similar action’ oF claim, ‘has been filed before any court or agency or tribunal, I spall repoit thaf' Tact Within 5 days from notice thereof before this Honorable ‘ourt, ultimately. to give due course to complainants’ appeal. os IN WITNESS WHEREOF, | have hereunto set my hand and seal this April 29, 13, Cityof Makati Philippines _ _ aquitadle uyerghe premises are also prayed for. ( ‘Makati City for Manila, April 24, 2013. GARDOSE akati City for Manila, April 24, 2013. moc SUBSCRIBI City in Makati City Counsel for the Pevitiodess'- Page No. oh 9 iga Streety Olyiiipilay Makati Ca Book Now [ELNo. 812-9015 loc. 108/ Mobile No- 091: Series of 2013 Pmail Address: attytaderis@yzhooiso1n PTR No. 3673782 / 01.03.13 /Makart / MCLE Compliance No. W001 5401 ~ ‘Lifetime IBP No. 07046 Roll of Attomey’s No. 53897 Doc. No.