REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA

FIFTEENTH DIVISION

CA GR SP NO. 121119
NLRC LAC CASE NO. 08-002785-16
NLRC NCR CASE NO. 02-0189216
National Labor Relations Commission
First Division, Quezon City

ABS-CBN BROADCASTING COMPANY, STUDIO 23, INC. MA.

CECILLIA P. ESTANISLAO AND VINCE RODRIGUEZ,
Petitioners

- versus –
NATIONAL LABOR RELATIONS COMMISSION (FIRST DIVISION)
AND EMMER GUDGAD LLUZ
Respondents

PETITION FOR CERTIORARI

ASPUS AND ASSOCIATES LAW

Domingo, Honrales, Suaybaguio, Malizon, Faustino, Barrera
SUBJECT INDEX
Page
LAWS CITED
1.
CASES CITED
1.

REPUBLIC OF THE PHILIPPINES

COURT OF APPEALS
MANILA
 FIFTEENTH DIVISION

ABS-CBN BROADCASTING COMPANY,

STUDIO 23, INC. MA. CECILLIA P.
ESTANISLAO AND VINCE RODRIGUEZ
Petitioners,

CA GR SP NO. 121119
-versus-

NATIONAL LABOR RELATIONS COMMISSION

(FIRST DIVISION) AND EMMER GUDGAD LLUZ
Respondents
x--------------------------------------------------------------x

PETITION FOR CERTIORARI

Petitioners, by counsel, unto this Honorable Court, respectfully
submit this Petition for Certiorari under Rule 65 of the Rules of Court
to annul and reverse the decisions of the National Labor Relations
Commission (NLRC) issued on December 5, 2016 with grave abuse
of discretion amounting to lack of jurisdiction there being no plain,
speedy and adequate remedy in the ordinary course of law, under the
following grounds:
THE NATIONAL LABOR RELATIONS COMMISSION (NLRC)
COMMITTED GRAVE ABUSE OF DISCRETION IN RULING THAT
RESPONDENT EMMER GUGAD LLUZ WAS A REGULAR
EMPLOYEE OF STUDIO 23 INC.
THE NLRC COMMITTED GRAVE ABUSE OF DICRETION IN
RULING THAT RESPONDENT EMMER WAS ILEGALLY
DISMISSED.

STATEMENT OF MATERIAL DATES

On December 5, 2016, the National Labor Relations
Commission (First Division) rendered the assailed decision, a copy of
which was received by the petitioners on November 27, 2019.
On _______, petitioners filed their Motion for Reconsideration,
which was denied by the NLRC in its order on February 07, 2017, a
copy of which was received on November 27, 2019, thus giving the
petitioner sixty (60) days until _________ to file a petition for certiorari
under Rule 65 of the Rules of Court.
This petition is being filed within the reglementary period.

THE PARTIES
Petitioner ABS-CBN BROADCASTING COMPANY is an entity
involved in television and radio broadcasting and with office address
at Ground Floor ELJ Building, ABS-CBN Compound, Mother Ignacia
Avenue, Quezon City where summons and processes may be
served. It may also be served with pleadings, processes and notices,
through undersigned counsel, at 123 Amorsolo Street Legaspi
Village, Makati City.
Petitioner STUDIO 23 Inc. was absorbed by ABS-CBN
Corporation pursuant to the merger of ABS-CBN Corporation, ABS-
CBN Interactive, Inc., ABS-CBN Multimedia Inc., and Studio 23 Inc.
The merger, with ABS-CBN Corporation as the surviving corporation,
was duly approved by the Securities of Exchange and Commission.
(not sure if kasama pa sila kasi nakipagmerge naman na sila sa ABS-
CBN)
Petitioners MARIA CECILIA ESTANISLAO and VINCE
RODRIGUEZ, as Head of Human Resources and Channel Head, are
all of legal ages and with present address at the following:
MARIA CECILLIA ESTANISLAO – (address)
VINCE RODRIGUEZ – (address)
Note: Not sure if isasama pa sila as petitioners kasi tinanggal na sila
ng NLRC as respondents.
Public respondent NATIONAL LABOR RELATIONS
COMMISSION (FIRST DIVISION) is impleaded herein being the
quasi-judicial body which rendered the Decision/Resolution subject of
this petition. It may be served with summons and processes at
PPSTA Bldg., Banaue, Quezon City.
Private respondent EMMER GUDGAD LLUZ is impleaded in
his capacity as an employee of Studio 23 Inc for being the person
responsible for illegal dismissal complaint. She may be served with
summons and notices at her counsel on record- Avinante & Andaleon
Law Office at 14th floor, Philippine Stock Exchange Centre West
Tower, Exchange Road Ortigas Center, Pasig City.

ATTACHMENTS
In compliance with revised circular 1-88, the following
documents and attachments are made integral part of the foregoing
Petition for Certiorari, viz:
 1. ANNEX “A” – Certified true copy of the Decision of the Labor
Arbiter
2. ANNEX “B” – Certified true copy decision of the NLRC First
Division dated December 5, 2016.
3. ANNEX “C” – Certified true copy of the NLRC decision dated
February 7, 2017 denying petitioners’ motion for
reconsideration.
Kailangan pa bang isama ang position papers ng petitioners
and respondent? - No na siguro, bebe. (Pau)

FACTS OF THE CASE

Respondent Emmer Gudgad Lluz was engaged by Studio 23

Inc., as a project employee to render services as Video Researcher
for the program “IBA Balita”, for one year, from January 1, 2013 to
December 30, 2013. A copy of the Project Assignment Form by virtue
of which the Respondent’s services were engaged is attached.

Respondent’s services were no longer engaged by Studio 23

Inc., after the expiration of her contract on December 31, 2013.
Studio 23 Inc., in fact, ceased operations on January 18, 2014.

On April 30, 2015, Studio 23 Inc., was absorbed by ABS-CBN

Corporation pursuant to the merger of ABS-CBN Corporation, ABS-
CBN Interactive, Inc., ABS-CBN Multimedia Inc., and Studio 23 Inc.
The merger, with ABS-CBN Corporation as the surviving corporation,
was duly approved by the Securities of Exchange and Commission.
 Complainant applied for a job with ABS-CBN Corporation but
was not hired.

On February 16, 2016 respondent filed a complaint against

petitioners for illegal dismissal, regularization, and non-payment of
her salary, overtime pay, holiday pay, holiday premium pay, rest day
premium pay, service incentive leave pay, 13th month pay, night shift
differential pay, and ECOLA. Respondent also prayed for payment of
moral damages, exemplary damages, and attorney’s fees.
(pakicheck ng facts (?)

LABOR ARBITER’S DECISION

After due proceedings, the Labor Arbiter rendered a decision
dated May 31, 2016 declaring that herein private respondent was
illegally dismissed from employment and entitled to payment of her
backwages, separation pay, 13th month pay, service incentive leave
pay, holiday pay, and attorney’s fees.

“WHEREFORE, premises considered, judgment is

hereby rendered, declaring respondents guilty of illegal
dismissal. Accordingly, respondents are ordered jointly and
severally liable:
1. To pay complainant her backwages, computed up to the
finality of the decision. As of this dated her backwages
amounted to P387,417.28;
2. To pay complainant the amount of P230,204.00,
representing her separation pay;
 3. To pay complainant the amount of P34,138.00 representing
her 13th month pay; the sum of P6,565.00 as her service
incentive leave pay; and the amount of P13,130.00 as her
holiday pay;
4. To pay complainant an amount equivalent to ten (10%)
percent of the total judgment awards, as and for attorney’s
fees.
Other claims are dismissed for lack of merit.
SO ORDERED.

Dissatisfied with the Decision, petitioners instituted their appeal,

which is premised on the following issues:

A. WHETHER OR NOT COMPLAINANT-APPELLEE WAS A

REGULAR EMPLOYEE OF STUDIO 23, INC.
B. WHETHER OR NOT COMPLAINANT-APPELLEE’S
EMPLOYMENT WAS STILL SUBSISTING AT THE TIME OF
STUDIO 23, INC.’S MERGER WITH ABS-CBN FOR HER TO
BE ABSORBED AS AN EMPLOYEE BY ABS-CBN
CORPORATION.
C. WHETHER OR NOT COMPLAINANT-APPELLEE WAS
ILLEGALLY DISMISSED SANS DUE PROCESS.
D. WHETHER OR NOT COMPLAINANT-APPELLEE IS
ENTITLED TO HER MONETARY CLAIMS.

NLRC’S DECISION
The NLRC affirmed the decision of the Labor Arbiter (buong
decision ba ng nlrc ang ilalagay?)
 WHEREFORE, the appeal is dismissed for lack of
merit and the Labor Arbiter’s Decision dated May 31, 2016
is affirmed. However, respondents Maria Cecilia P.
Estanislao and Vince Rodriguez are ordered dropped as
party respondents.
SO ORDERED.

Petitioners filed a timely motion for reconsideration was to no

avail; hence, herein instant petition for Certiorari to annul and reverse
the NLRC’s decision.

ARGUMENTS

There is grave abuse of discretion when: the NLRC arbitrarily

disregarded the evidence before it or had misappreciated the
evidence to such extent as to compel a contrary conclusion if such
evidence had been properly appreciated:

I. RESPONDENT EMMER IS A PROJECT EMPLOYEE; AND

INELIGIBLE TO BE REGULAR DESPITE RECURRING
ENGAGEMENT

II. RESPONDENT EMMER IS NOT ENTITLED TO THE RELIEFS

ADJUDGED HER BY THE HONORABLE NLRC

DISCUSSION
I. Respondent is a Project
Employee throughout her
employment; not eligible for
Regularization despite recurring
engagement

Studying Respondent Emmer’s case, her suit for illegal

dismissal and her assertion that she has become a Regular
Employee basically stems from two (2) matters of fact:

1) That Respondent worked as project employee for Studio 23,

a subsidiary of ABSCBN, for 15 years; and,

2) That Respondent was repeatedly hired.

The NLRC and Respondent misappreciated the facts of the

case and our labor laws which led to the ruling that she has become
a regular employee. This is so because under our labor laws:
1) longevity of time of employment per se does not qualify a project
employee to regularization by operation of law, and 2) the “Repeated
Hiring Rule” applies only to Casual Employees.

The Labor Code is clear. Project employees are ones whose

services are engaged 1) for a definite and fixed period of time, or
2) for the duration or until completion of a project for which an
employee’s service was employed.1 Further, under D.O. No. 19, s.
1993, either one or more of the following circumstances, among

1
Art. 295 (formerly numbered as Art. 280), Labor Code of the Philippines
others may be considered as indicators that an employee is a project
employee:

1) The duration of the specific/identified undertaking for which

the worker is engaged is reasonable determinate;

2) Such duration, as well as the specific work/service to be

performed, is defined in an employment agreement, and is
made clear to the employee at the time of the hiring;

3) The work/service performed by the employee is in

connection with the particular project/undertaking for which
he is engaged;

4) The employee, while not employed and awaiting engagement, is

free to offer his services to any other employer;

5) the termination of his employment in the particular

project/undertaking is reported to the DOLE Regional Office having
jurisdiction over the workplace within 30 days following the date of
his separation from work, using the prescribed for on employee’s
termination, dismissal or suspension; or,

6) An undertaking in the employment contract by the employee to

pay completion bonus to the project employee as practiced by most
construction companies.2

In the case at bar, Respondent Emmer clearly knew she is

being employed specifically as a Video Researcher of the specific
project called “News Central/IBA BALITA.” The Honorable NLRC
failed to appreciate vital facts and practices in the show
business (Showbiz) industry, and hastily placed it at par with all
other forms of employment.

It can be noted that Respondent Emmer claims with

particularity that she was engaged as Video Researcher for the news

2
Section 2.2, Department Order No. 19, Series Of 1993 – Guidelines Governing The Employment Of
Workers In The Construction Industry
program “News Central” by her former employer Studio 23. Even in
respondents own averments, it can be plainly be understood that she
is indeed a video researcher particularly for the project, that is, News
Central. Nowhere in her pleadings or in the LA or NLRC decision that
she has averred is that she was hired as a Video Researcher under
Studio 23 itself.

TV shows are inherently project

employments – which qualifies
as “Specific Undertaking” under
the IRR of the Labor Code

There are two (2) types of Project Employment: a) Specific

Undertaking or b) Time-Bound. Specific Undertaking refers to a
specific project or undertaking the completion; Time-Bound refers to
termination of such project has been determined at the time of the
engagement of the employee.3

TV shows and programs may have the lifetime which stretches

a number of years and even decades – such as News Central –
which was on air for more than fifteen (15) long years until the Studio
23 itself was absorbed by ABS-CBN in January 15, 2014. The
statements of the Respondent Emmer are clear that she is
specifically employed as Video Researcher for the specific project of
“News Central” a.k.a “IBA BALITA”, its most recent program name.4

3
Sec. 5-a, Rule I, Book VI, Implementing Rules and Regulations of the Labor Code of the Philippines
4
Page 2 of the NLRC Decision, dated December 5, 2016
 Contrary to the Labor Arbiter and NLRC theories, TV shows are
not the same with construction projects (a usual example of project
employment) where completion can clearly be determinable and
expected. TV projects are dependent on various economic factors,
and its completion, although expected and reasonably determinable,
is not capable of being precisely foretold.

It is in the humble position of Petitioner that, TV shows are

either Specific Undertaking or Time-Bound Projects. These
shows, even news programs and no matter how long they
remain on-air, can only be considered as projects of the
entertainment company. No matter how long the show may be, our
justice system may take judicial notice that TV programs have a
lifetime that is definite, although the years it will stay on-air not
precisely fixed, yet reasonably determinable.

This assertion is due to the fact that TV Shows’ lifetimes are, as

generally known, dependent on viewer count and public demand. By
sound management prerogative, TV shows may be validly initiated,
suspended or terminated depending on some indicator peculiar to the
showbiz (show business) industry. This is because “only the most
popular shows, which drive the most ad sales, are allowed to survive
— is now deeply influenced by other variables, leading some shows
to stay on the air for years on end with very few viewers.”5 Judicial
notice is enticed to the fact that Studio 23 is losing its firm grip on
viewer ratings and popularity among the public. Losing the clientele
5
S. Zeitchik, “When Ratings Don’t Define Success, More Tv Series Are Staying On The Air Longer,”
Accessed From Https://Www.Washingtonpost.Com/Business/Economy/When-Ratings-Dont-Define-
Success-More-Tv-Series-Are-Staying-On-The-Air-Longer/2018/09/28/1778789c-C105-11e8-Be77-
516336a26305_Story.Html, Last December 8, 2019.
logically and necessarily means losing as well financial gains and
stability. This is evidenced by TV ratings report6 and Financial Report
and Accounting7 of Studio 23.

The News Central program where Respondent Emmer is

employed is to be considered as a “Specific Undertaking” since
her employment therein is specific and the undertaking is until
completion.8 At the time of Respondent Emmer’s termination on
December 31, 2013, Studio 23’s cessation of operations is imminent
since, 15 days later or January 15, 2014, Studio 23 was absorbed by
ABS-CBN, the latter being the surviving corporation. At which point,
Studio 23’s TV shows, including News Central/IBA BALITA are to be
discontinued soon.

When Studio 23 ceased or is about to cease operation, it is

to be understood that the project “News Central” or “IBA
BALITA” has reached its completion. Being particularly employed
as Video Researcher of News Central or IBA Balita, Respondent
Emmer’s tenure, by the very nature of the show she works under, is
coterminous with said show.

Hence, being clearly appraised and cognizant of her

employment specifically as Video Researcher for a specific project,
her employment is deemed to have ceased when the project itself
has reached its completion. Even assuming arguendo that
Respondent was not expressly informed of the nature of the

6
Exhibit “A” Herewith, Titled “Studio 23 Tv Ratings 2010-2012”
7
Page 15, Exhiit “B” Herewith, Titled “Merger Of Abscbn And Studio 23 Financial Reports - 2014”
8
Sec. 5-a, Rule I, Book VI, IRR of the Labor Code
employment, she could not be validly assume that “News Central” is
permanent project of Studio 23. All TV shows are basically projects.
Common sense dictates that she should have known this fact.

Longevity of time of project employment does not qualify a

project employee for regularization. It is the law that defines the
type of employment, and not the parties define or limit in the
employment contract,9 and further defined by the nature of the
employment.10 As stated in Art. 29511, “project employees or those
whose employment has been fixed for a specific project or
undertaking, the completion or termination of which has been
determined at the time of the engagement of the employee.”12

In the case at bar, Respondent Emmer is engaged for the

project News Central. When Studio 23 is to be absorbed by ABSCBN
in January 15, 2014, the project, along with her contract had to end –
which in effect is its “completion” in the parlance of law. Unlike other
shows of its kind, TV shows are not like soap operas which are story-
driven where its “completion” can be precisely determined. News
programs operate regularly, such that “completion” can only mean the
ending of the project. The facts cannot be anymore clearer that she
willingly accepted the employment under a news programs.

At this point, it has been proved that Respondent understood

the employment she accepted and that the TV show she was hired
9
Innodata Knowledge Services, Inc. vs. Inting, et. al., G.R. No. 211892, December 6, 2017
10
Philippine Airlines vs. Pascua, G.R. No. 143258, August 15, 2003
11
Formerly numbered as Art. 280, Labor Code of the Philippines
12
Innodata Knowledge Services, Inc. vs. Inting, ibid., citing Leyte Geothermal Power Progressive
Employees-Union-ALU-TUCP v. Philippine National Oil Company-Energy Development Corp., 662 Phil.
225, 234 (2011).
on is a Specific Undertaking Project Employment under the law. Let
us now discuss how the honorable NLRC erred in stating that

RELIEF
WHEREFORE, premises considered, it is most respectfully
prayed of this Honorable Court that the petition be given DUE
COURSE and after consideration thereof:
1. A WRIT OF CERTIORARI be ISSUED declaring the decision of
the public respondent NLRC dated December 5, 2016 as NULL
AND VOID for being issued with grave abuse of discretion,
setting aside the same and ordering the justified dismissal of
respondent Emmer.
2. Such other just and equitable reliefs are likewise prayed for.

Respectfully submitted.
December 11, 2019, Legaspi Village, Makati City

ASPUS AND ASSOCIATES LAW

Counsel for Plaintiffs-Appellants
123 Amorsolo Street, Legaspi Village
 Makati City
Tel Nos. (044) 512-533; (044) 871-3246

BY:
ATTY. JOSE PAULINO M. DOMINGO
Senior Associate
IBP NO. 123456 / 01-12-01 Makati City
PTR NO. 8745123 / 03-14-10 Makati City
Roll No. 44523
MCLE Compliance No. V-00087451
Valid until 12-07-22

ATTY. JACQUES HONRALES

Senior Associate
IBP NO. 874596/ 04-17-03 Makati City
PTR NO. 474553 / 02-18-10 Makati City
Roll No. 64542
MCLE Compliance No. IV-0012358
Valid until 12-07-22

ATTY. CRYSTAL JOY MALIZON

Junior Associate
IBP NO. 123451 / 02-12-03 Makati City
PTR NO. 1445123 / 03-15-12 Makati City
Roll No. 44912
MCLE Compliance No. V-00087422
Valid until 12-07-22

ATTY. DOREVIE SUAYBAGUIO

Junior Associate
IBP NO. 123452 / 01-14-01 Makati City
PTR NO. 2445123 / 01-03-10 Makati City
Roll No. 44634
MCLE Compliance No. V-00087411
Valid until 12-07-22

ATTY. ARISSE BARRERA

Junior Associate
IBP NO. 123453 / 04-12-02 Makati City
PTR NO. 3345123 / 02-14-11 Makati City
Roll No. 44256
MCLE Compliance No. V-00087433
 Valid until12-07-22

ATTY. CELSA FAUSTINO

Junior Associate
IBP NO. 123454 / 02-19-01 Makati City
PTR NO. 4445122 / 06-14- Makati City
Roll No. 44178
MCLE Compliance No. V-00087424
Valid until 12-07-22

EXPLANATION
In Compliance with Section _, Rule __ of the Rules of Court,
copies of the foregoing Petition for Certiorari will be served to parties
concerned through registered mail due to time and distance
constraints and no office messengers making personal service
thereof impracticable.

JOSE PAULINO DOMINGO

Copy Furnished:

AVINANTE & ANDALEON

Counsel for Private Respondent
14th floor, Philippine Stock Exchange Centre
West Tower, Exchange Road
Ortigas Center, Pasig City.

NATIONAL LABOR RELATIONS COMMISSION

FIRST DIVISION
PPSTA Bldg. Banawe
Quezon City
 VERIFICATION AND CERTIFICATION OF NON-FORUM
SHOPPING

I, MARIA CECILLIA ESTANISLAO, of legal age, Filipino

citizen, and holding office at Ground Floor ELJ Building, ABS-CBN
Compound, Mother Ignacia Avenue, Quezon City after having duly
sworn to in accordance with law, do hereby depose and state that:

1. I am the duly authorized representative of petitioner ABS-CBN

Broadcasting Company, where I am the Head of Human
Resources, and empowered to represent the said corporation
in this petition with the Court of Appeals;

2. I have caused the preparation and filing of the foregoing

Petition and attest that the contents thereof are true and correct
 according to my own personal knowledge and based on
authentic records of the company;

3. I have not heretofore commenced any other action or

proceeding involving the same issues and/or subject matter in
the Supreme Court, Court of Appeals, or any other tribunal or
quasi-judicial agency.

4. To the best of my knowledge, no such action or proceeding has

been filed or pending in the Supreme Court, Court of Appeals,
or any other tribunal or quasi-judicial agency. If I should
thereafter learn that a similar action or claim has been filed or
pending before any court, tribunal, or quasi-judicial agency, I
undertake to report such fact to this Court within five (5) days
from such discovery.

IN WITNESS WHEREOF, I have hereunto set my hands this

th
10 day of December, 2019 in Legaspi Village, Makati City,
Philippines with PRC Licence No. 1245.

MA. CECILLIA P. ESTANISLAO

Head, Human Resources

SUBSCRIBED AND SWORN TO BEFORE ME to me this 10th

day of December 2019, after affiance exhibiting to me his PRC
Licence as shown above below her name as competent evidence of
her identity.

ATTY. MARIA CRISTINA BARAO

Notary Public Makati City
Until December 12, 2019
Appointment No.M-183(2019-2020)
PTR No. 4587512 Jan. 3,
2019/Makati
IBP No. 875843 Roll No. 23484
MCLE Comp. No. IV-5555658

Doc No: 111

Page No: 121
Book No: 45
Series of 2019

Republic of the Philippines )

City of Makati ) S.S

AFFIDAVIT OF SERVICE

I, JETHRO AVINANTE, of legal age and with office address at

Aspus and Associate Law, 143 Amorsolo Street, Legaspi Village
Makati City, after being duly sworn, depose and say:

That I am one of the office staffs of Aspus and Associate Law;

That on December 11, 2019, I served a copy of the following

pleading:

NATURE OF PLEADING
PETITION FOR CERTIORARI
In Case No. CA G.R SP NO. 121119 ABS-CBN Broadcasting
Company versus NLRC and Emmer Gudgad Lluz., in pursuant to
Rule _____ of the Rules of Court, as follows:

By Registered Mail to:

AVINANTE & ANDALEON
Counsel for Private Respondent
14th floor, Philippine Stock Exchange
Centre By depositing a copy on
West Tower, Exchange Road December 11, 2019 in
Ortigas Center, Pasig City. the Manila Post Office as
evidenced by Registry
Receipt No. 2722 hereto
NATIONAL LABOR RELATIONS attached and indicated
COMMISSION after the name(s) of the
FIRST DIVISION addressee(s), and with
PPSTA Bldg. Banawe instructions to the
Quezon City postmaster to return the
mail to the sender after
ten (days) if undelivered.

Service was made by registered mail as the post office is

efficient, economical and non-exhausting.

IN WITNESS WHEREOF, I have hereunto set my hands this 11th day

of December, 2019 in Legaspi Village, Makati City, Philippines with
PRC Licence No. 1245.

JETHRO AVINANTE

SUBSCRIBED AND SWORN TO BEFORE ME to me this 11th

day of December 2019, after affiance exhibiting to me his PRC
Licence as shown above below his name as competent evidence of
her identity.

ATTY. MARIA CRISTINA BARAO

Notary Public Makati City
Until December 12, 2019
Appointment No.M-183(2019-2020)
 PTR No. 4587512 Jan. 3, 2019/Makati
IBP No. 875843 Roll No. 23484
MCLE Comp. No. IV-5555658

Doc No: 222

Page No: 333
Book No: 44
Series of 2019