76-80

Republic of the PhilippinesSUPREME COURTManilaSECOND DIVISIONG.R. No. 111988 October 14, 1994ASSOCIATED LABOR UNIONS (ALU)-TUCP in behalf of its members at AMS FARMING CORPORATION,petitioner,vs.VOLUNTARY ARBITRATOR ROSALINA LETRONDO-MONTEJO and AMS FARMING CORPORATION,respondent.Seno, Mendoza and Associates for petitioner.Castro, Enriquez, Carpio, Guillen and Associates for private respondents.MENDOZA,J.:This is a petition forcertiorarito set aside the decision dated July 19, 1993 of public respondent Voluntary Arbitrator Rosalina Letrondo-Montejo insofar as it dismissed the claim of petitioner's members for holiday pay for December 4, 1992, which had been declared a special day for the holding of Sangguniang Kabataan election.The facts are as follows:On December 27, 1990, petitioner Associated Labor Unions (ALU-TUCP and private respondent AMS Farming Corporation entered into a five-year Collective Bargaining Agreement beginning November 1, 1990 andending midnight of October 31, 1995. The CBA covers the regular daily-paid rank-and-file employees of private respondent AMS Farming Corp. at Sampao, Kapalong, Davao del Norte and Magatos, Asuncion, Davao del Norte.Art. VII, sec 3. of the CBA provides:New Year, Maundy Thursday, Good Friday, Araw ng Kagitingan, 1st of May, 12th of June, Araw ng Dabaw, 4th of July, Last Sunday of August, 1st November, 30th of November, 25th of December, 30th of December and the days designated by law for holding referendum and local/national election shall be considered paid regular holidays. Consequently, they shall receive their basic pay even if they do not work on those days. Any employee required to work on these holidays shall be paid at last TWO HUNDRED PERCENT (200%) of his daily wage. Covered employees performing overtime work on these days shall be entitled to another THIRTY PERCENT (30%) overtime pay. It is understood however, that any covered employee who shall be absent for more than one day immediately preceding the paid holiday shall not be entitled to the holiday pay.The President of the Philippines declared December 4, 1992 a "special day" for the holding of election for Sangguniang Kabataan (SK) throughout the nation. Employees covered by the CBA subsequently filed claims for the payment to them of holiday pay for that day. Private respondent, however, refused their claims on the ground that December 4, 1992 was not a regular holiday within the contemplation of the CBA.The matter was eventually submitted to voluntary arbitration. At the conference held on February 19, 1993, the parties agreed, among others things, to submit the following issue:Is the Sangguniang Kabataan Election Day considered a regular holiday for purpose of said Section 3, Article VII of the CBA?In connection with this issue, they agreed that the Sangguniang Kabataan Election Day was a holiday as decreed by the President of the Philippines.The parties presented position papers and thereafter submitted the case for resolution.On July 19, 1993, public respondent rendered an "Award"1in which, while holding employees who had become regular employees on November 1, 1990 entitled to salary increases under the CBA, nonetheless dismissed their claim for holiday pay for December 4, 1992 on the ground that the Sangguniang Kabataan election "by any stretch of the imagination cannot be considered as a local election within the meaning of CBA because not all people can vote in the said election but only qualified youths." According to the Voluntary Arbitrator, "A 'local election' is generally understood to mean the election by the people of their local leaders like the governors, mayors, members of the provincial and municipal councils, and barangay officials. And when a local election is held, the day is declared a non-working holiday. This is our experience in local and national elections. In the case of the Sangguniang Kabataan (SK) elections, it was a working holiday. Except for the qualified youthful voters, not everybody noticed said election as not everyone voted in the said election."Hence, this petition, the only issue in which is whether the election for the Sangguniang Kabataan on December 4, 1992 was a "local/national election" within the contemplation of Art. VII, sec. 3 of the CBA so as to entitle petitioner's members, who are employed at the AMS Farming Corp. to the payment of holiday pay for that day.We hold that it is and that, in denying petitioner's claim, respondent Voluntary Arbitrator denied members of petitioner union substantial justice as a result of her erroneous interpretation of the CBA, thereby justifying judicial review.2First. The Sangguniang Kabataan (SK) is part of the local government structure. The Local Government Code (Rep. Act. No. 7160) creates in every barangay a Sangguniang Kabataan composed of a chairman, seven (7) members, a secretary and a treasurer.3The chairman and the seven members are elected by the Katipunan ng Kabataan, which is composed of citizens of the Philippines residing in the barangay for at least six (6) months, who are between the ages of 15 and 21 and who are registered as members.4The chairman of the SK is anex officiomember of the Sangguniang Baranggay with the same powers duties, functions and privileges as the regular members of the Sangguniang Barangay.5The President of the Pederasyon ng mga Sangguniang Kabataan, which is imposed of the SK chairmen of the sangguniang kabataan of the barangays in the province, city, or municipality, is anex officiomember of the Sangguniang Panlalawigan, Sangguniang Panlungsod, and Sangguniang Bayan.6Hence, as the Solicitor General points out, the election for members of the SK may properly be considered a "local election" within the meaning ofArt. VII, sec 3 of the CBA and the day on which it is held to be a holiday, thereby entitling petitioners members at the AMS Farming Corp. to the payment of holiday on such day.Second. The Voluntary Arbitrator held, however, that the election for members of the SK cannot be considered a local election as the election for Governors , Vice Governors, Mayors and Vice Mayors and the various local legislative assemblies (sanggunians) because the SK election is participated in only by the youth who are between the ages of 15 and 21 and for this reason the day is not a nonworking holiday.To begin with, it is not true that December 4, 1992 was not a nonworking holiday. It was a nonworking holiday and this was announced in the media.7In Proclamation No. 118 dated December 2, 1992 President Ramos declared the day as "aspecial daythrough the country on the occasion of the Sangguniang Kabataan Elections" and enjoined all "local government units through their respective Chief Local Executives [to] extend all possible assistance and support to ensure the smooth conduct of thegeneral elections."A "special day" is a "special day", as provided by the Administrative Code of 1987.8On the other hand, the term "general elections" means, in the context of SK elections, theregularelections for members of the SK, as distinguished from thespecialelections for such officers.9Moreover, the fact that only those between 15 and 21 take part in the election for members of the SK does not make such election any less a regular local election. The Constitution provides, for example, for the sectoral representatives in the House of Representatives of, among others, women and youth.10Only voters belonging to the relevant sectors can take part in the election of their representatives. Yet it cannot be denied that such election is a regular national election and the day set for its holding, a holiday.Third. Indeed, the CBA provision in question merely reiterates the provision on paid holidays. Thus, the Labor Code provides:Art. 94. Right to holiday pay. (a) Every worker shall be paid his regular daily wage during regular holidays except in retail and service establishments regularly employing less than ten (10) workers;(b) The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent to twice his regular rate; and(c) As used in this Article, "holiday" includes: New Years Day, Maundy Thursday, Good Friday, the ninth of April, the first of May, the twelfth of June, the fourth of July, the thirtieth of November, the twenty-fifth and the thirtieth of December, andthe day designated by law for holding a general election.As already explained, the phrase "general election" means regular local and national elections.Consequently, whether in the context of the CBA or the Labor Code, December 4, 1992 was a holiday for which holiday pay should be paid by respondent employer.WHEREFORE, the decision dated July 19, 1993 of public respondent Rosalina Letrondo-Montejo, insofar as it dismissed petitioner's claim for holiday pay, is SET ASIDE and private respondent is ORDERED to pay petitioner's members their regular holiday pay for December 4, 1992 in accordance with Art. VII, sec. 3 of the Collective Bargaining Agreement.SO ORDERED.Narvasa, C.J., Padilla, Regalado and Puno, JJ., concur.

FIRST DIVISION[G.R. No. 146775.January 30, 2002]SAN MIGUEL CORPORATION,petitioner, vs.THE HONORABLE COURT OF APPEALS-FORMER THIRTEENTH DIVISION, HON. UNDERSECRETARY JOSE M. ESPAOL, JR., Hon. CRESENCIANO B. TRAJANO, and HON. REGIONAL DIRECTOR ALLAN M. MACARAYA,respondents.D E C I S I O NKAPUNAN,J.:Assailed in the petition before us are the decision, promulgated on08 May 2000, and the resolution, promulgated on18 October 2000, of the Court of Appeals in CA G.R. SP-53269.The facts of the case are as follows:On17 October 1992, the Department of Labor and Employment (DOLE), Iligan District Office, conducted a routine inspection in the premises of San Miguel Corporation (SMC) in Sta. Filomena,IliganCity.In the course of the inspection, it was discovered that there was underpayment by SMC of regular Muslim holiday pay to its employees.DOLE sent a copy of the inspection result to SMC and it was received by and explained to its personnel officer Elena dela Puerta.[1]SMC contested the findings and DOLE conducted summary hearings on19 November 1992,28 May 1993and 4 and5 October 1993.Still, SMC failed to submit proof that it was paying regular Muslim holiday pay to its employees.Hence, Alan M. Macaraya, Director IV of DOLE Iligan District Office issued a compliance order, dated 17 December 1993, directing SMC to consider Muslim holidays as regular holidays and to pay both its Muslim and non-Muslim employees holiday pay within thirty (30) days from the receipt of the order.SMC appealed to the DOLE main office inManilabut its appeal was dismissed for having been filed late.The dismissal of the appeal for late filing was later on reconsidered in the order of17 July 1998after it was found that the appeal was filed within the reglementary period.However, the appeal was still dismissed for lack of merit and the order of Director Macaraya was affirmed.SMC went to this Court for reliefviaa petition forcertiorari, which this Court referred to the Court of Appeals pursuant toSt. Martin Funeral Homes vs. NLRC.[2]The appellate court, in the now questioned decision, promulgated on08 May 2000, ruled, as follows:WHEREFORE, the Order datedDecember 17, 1993of Director Macaraya and Order datedJuly 17, 1998of Undersecretary Espaol, Jr. is hereby MODIFIED with regards the payment of Muslim holiday pay from 200% to 150% of the employee's basic salary.Let this case be remanded to the Regional Director for the proper computation of the said holiday pay.SO ORDERED.[3]Its motion for reconsideration having been denied for lack of merit, SMC filed a petition forcertioraribefore this Court, alleging that:PUBLIC RESPONDENTS SERIOUSLY ERRED AND COMMITTED GRAVE ABUSE OF DISCRETION WHEN THEY GRANTED MUSLIM HOLIDAY PAY TO NON-MUSLIM EMPLOYEES OF SMC-ILICOCO AND ORDERING SMC TO PAY THE SAME RETROACTIVE FOR ONE (1) YEAR FROM THE DATE OF THE PROMULGATION OF THE COMPLIANCE ORDER ISSUED ON DECEMBER 17, 1993, IT BEING CONTRARY TO THE PROVISIONS, INTENT AND PURPOSE OF P.D. 1083 AND PREVAILING JURISPRUDENCE.THE ISSUANCE OF THE COMPLIANCE ORDER WAS TAINTED WITH GRAVE ABUSE OF DISCRETION IN THAT SAN MIGUEL CORPORATION WAS NOT ACCORDED DUE PROCESS OF LAW; HENCE, THE ASSAILED COMPLIANCE ORDER AND ALL SUBSEQUENT ORDERS, DECISION AND RESOLUTION OF PUBLIC RESPONDENTS WERE ALL ISSUED WITH GRAVE ABUSE OF DISCRETION AND ARE VOID AB INITIO.THE HON. COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT DECLARED THAT REGIONAL DIRECTOR MACARAYA, UNDERSECRETARY TRAJANO AND UNDERSECRETARY ESPAOL, JR., WHO ALL LIKEWISE ACTED WITH GRAVE ABUSE OF DISCRETION AND WITHOUT OR IN EXCESS OF THEIR JURISDICTION, HAVE JURISDICTION IN ISSUING THE ASSAILED COMPLIANCE ORDER AND SUBSEQUENT ORDERS, WHEN IN FACT THEY HAVE NO JURISDICTION OR HAS LOST JURISDICTION OVER THE HEREIN LABOR STANDARD CASE.[4]At the outset, petitioner came to this Courtviaa petition forcertiorariunder Rule 65 instead of an appeal under Rule 45 of the 1997 Rules of Civil Procedure.InNational Irrigation Administration vs. Court of Appeals,[5]the Court declared:x x x (S)ince the Court of Appeals had jurisdiction over the petition under Rule 65, any alleged errors committed by it in the exercise of its jurisdiction would be errors of judgment which are reviewable by timely appeal and not by a special civil action ofcertiorari.If the aggrieved party fails to do so within the reglementary period, and the decision accordingly becomes final and executory, he cannot avail himself of the writ ofcertiorari, his predicament being the effect of his deliberate inaction.The appeal from a final disposition of the Court of Appeals is a petition for review under Rule 45 and not a special civil action under Rule 65 of the Rules of Court, now Rule 45 and Rule 65, respectively, of the 1997 Rules of Civil Procedure.Rule 45 is clear that decisions, final orders or resolutions of the Court of Appeals in any case,i.e.,regardless of the nature of the action or proceeding involved, may be appealed to this Court by filing a petition for review, which would be but a continuation of the appellate process over the original case.Under Rule 45 the reglementary period to appeal is fifteen (15) days from notice of judgment or denial of motion for reconsideration.x x xFor the writ ofcertiorariunder Rule 65 of the Rules of Court to issue, a petitioner must show that he has no plain, speedy and adequate remedy in the ordinary course of law against its perceived grievance.A remedy is considered "plain, speedy and adequate" if it will promptly relieve the petitioner from the injurious effects of the judgment and the acts of the lower court or agency.In this case, appeal was not only available but also a speedy and adequate remedy.[6]Well-settled is the rule thatcertioraricannot be availed of as a substitute for a lost appeal.[7]For failure of petitioner to file a timely appeal, the questioned decision of the Court of Appeals had already become final and executory.In any event, the Court finds no reason to reverse the decision of the Court of Appeals.Muslim holidays are provided under Articles 169 and 170, Title I, Book V, of Presidential Decree No. 1083,[8]otherwise known as the Code of Muslim Personal Laws, which states:Art. 169.Official Muslim holidays.- The following are hereby recognized as legal Muslim holidays:(a)Amun Jadd(New Year), which falls on the first day of the first lunar month ofMuharram;(b)Maulid-un-Nab(Birthday of the Prophet Muhammad), which falls on the twelfth day of the third lunar month ofRabi-ul-Awwal;(c)Lailatul Isr Wal Mirj(Nocturnal Journey and Ascension of the Prophet Muhammad), which falls on the twenty-seventh day of the seventh lunar month ofRajab;(d)d-ul-Fitr (Hari Raya Puasa), which falls on the first day of the tenth lunar month ofShawwal, commemorating the end of the fasting season; and(e)d-l-Adh(Hari Raya Haji),which falls on the tenth day of the twelfth lunar month ofDhl-Hijja.Art.170.Provincesand cities where officially observed.- (1) Muslim holidays shall be officially observed in the Provinces of Basilan, Lanao del Norte, Lanao del Sur, Maguindanao, North Cotabato, Iligan, Marawi, Pagadian, and Zamboanga and in such other Muslim provinces and cities as may hereafter be created;(2) Upon proclamation by the President of thePhilippines, Muslim holidays may also be officially observed in other provinces and cities.The foregoing provisions should be read in conjunction with Article 94 of the Labor Code, which provides:Art. 94.Right to holiday pay. -(a)Every worker shall be paid his regular daily wage during regular holidays, except in retail and service establishments regularly employing less than ten (10) workers;(b)The employer may require an employee to work on any holiday but such employee shall be paid a compensation equivalent totwice his regular rate; x x x.Petitioner asserts that Article 3(3) of Presidential Decree No. 1083 provides that (t)he provisions of this Code shall be applicable only to Muslims x x x. However, there should be no distinction between Muslims and non-Muslims as regards payment of benefits for Muslim holidays.The Court of Appeals did not err in sustaining Undersecretary Espaol who stated:Assuming arguendo that the respondents position is correct, then by the same token, Muslims throughout thePhilippinesare also not entitled to holiday pays on Christian holidays declared by law as regular holidays.We must remind the respondent-appellant that wages and other emoluments granted by law to the working man are determined on the basis of the criteria laid down by laws and certainly not on the basis of the workers faith or religion.At any rate, Article 3(3) of Presidential Decree No. 1083 also declares that x x x nothing herein shall be construed to operate to the prejudice of a non-Muslim.In addition, the1999 Handbook on Workers Statutory Benefits, approved by then DOLE Secretary Bienvenido E. Laguesma on14 December 1999categorically stated:Considering that all private corporations, offices, agencies, and entities or establishments operating within the designated Muslim provinces and cities are required to observe Muslim holidays,both Muslim and Christians working within the Muslim areas may not report for work on the days designated by law as Muslim holidays.[9]On the question regarding the jurisdiction of the Regional Director Allan M. Macaraya, Article 128, Section B of the Labor Code, as amended by Republic Act No. 7730, provides:Article 128. Visitorial and enforcement power. -x x x(b) Notwithstanding the provisions of Article 129 and 217 of this Code to the contrary, and in cases where the relationship of employer-employee still exists, the Secretary of Labor and Employment or his duly authorized representatives shall have the power to issue compliance orders to give effect to the labor standards provisions of this Code and other labor legislation based on the findings of labor employment and enforcement officers or industrial safety engineers made in the course of the inspection.The Secretary or his duly authorized representative shall issue writs of execution to the appropriate authority for the enforcement of their orders, except in cases where the employer contests the findings of the labor employment and enforcement officer and raises issues supported by documentary proofs which were not considered in the course of inspection.x x xIn the case before us, Regional Director Macaraya acted as the duly authorized representative of the Secretary of Labor and Employment and it was within his power to issue the compliance order to SMC.In addition, the Court agrees with the Solicitor General that the petitioner did not deny that it was not paying Muslim holiday pay to its non-Muslim employees.Indeed, petitioner merely contends that its non-Muslim employees are not entitled to Muslim holiday pay.Hence, the issue could be resolved even without documentary proofs.In any case, there was no indication that Regional Director Macaraya failed to consider any documentary proof presented by SMC in the course of the inspection.Anent the allegation that petitioner was not accorded due process, we sustain the Court of Appeals in finding that SMC was furnished a copy of the inspection order and it was received by and explained to its Personnel Officer.Further, a series of summary hearings were conducted by DOLE on19 November 1992,28 May 1993and 4 and5 October 1993.Thus, SMC could not claim that it was not given an opportunity to defend itself.Finally, as regards the allegation that the issue on Muslim holiday pay was already resolved in NLRC CA No. M-000915-92 (Napoleon E. Fernan vs. San Miguel Corporation Beer Division and Leopoldo Zaldarriaga),[10]the Court notes that the case was primarily for illegal dismissal and the claim for benefits was only incidental to the main case.In that case, the NLRC Cagayan de Oro City declared, in passing:We also deny the claims for Muslim holiday pay for lack of factual and legal basis.Muslim holidays are legally observed within the area of jurisdiction of the present Autonomous Region for Muslim Mindanao (ARMM), particularly in the provinces of Maguindanao, Lanao del Sur, Sulu and Tawi-Tawi.It is only upon Presidential Proclamation that Muslim holidays may be officially observed outside the Autonomous Region and generally extends to Muslims to enable them the observe said holidays.[11]The decision has no consequence to issues before us, and as aptly declared by Undersecretary Espaol, it can never be a benchmark nor a guideline to the present case x x x.[12]WHEREFORE, in view of the foregoing, the petition is DISMISSED.SO ORDERED.Davide, Jr., C.J., (Chairman), Puno, Pardo,andYnares-Santiago, JJ.,concur.

SECOND DIVISION[G.R. No. 114734. March 31, 2000]VIVIAN Y. IMBUIDO,petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, INTERNATIONAL INFORMATION SERVICES, INC. and GABRIEL LIBRANDO,respondents.D E C I S I O NBUENA,J.:This special civil action forcertiorariseeks to set aside the Decision[1]of the National Labor Relations Commission (NLRC) promulgated on September 27, 1993 and its Order dated January 11, 1994, which denied petitioners motion for reconsideration.ScslxPetitioner was employed as a data encoder by private respondent International Information Services, Inc., a domestic corporation engaged in the business of data encoding and keypunching, from August 26, 1988 until October 18, 1991 when her services were terminated. From August 26, 1988 until October 18, 1991, petitioner entered into thirteen (13) separate employment contracts with private respondent, each contract lasting only for a period of three (3) months. Aside from the basic hourly rate, specific job contract number and period of employment, each contract contains the following terms and conditions:Slxsc"a. This Contract is for a specific project/job contract only and shall be effective for the period covered as above-mentioned unless sooner terminated when the job contract is completed earlier or withdrawn by client, or when employee is dismissed for just and lawful causes provided by law. The happening of any of these events will automatically terminate this contract of employment.Slxmis"b. Subject shall abide with the Companys rules and regulations for its employees attached herein to form an integral part hereof."c. The nature of your job may require you to render overtime work with pay so as not to disrupt the Companys commitment of scheduled delivery dates made on said job contract."[2]In September 1991, petitioner and twelve (12) other employees of private respondent allegedly agreed to the filing of a petition for certification election involving the rank-and-file employees of private respondent.[3]Thus, on October 8, 1991, Lakas Manggagawa sa Pilipinas (LAKAS) filed a petition for certification election with the Bureau of Labor Relations (BLR), docketed as NCR-OD-M-9110-128.[4]Subsequently, on October 18, 1991, petitioner received a termination letter from Edna Kasilag, Administrative Officer of private respondent, allegedly "due to low volume of work."[5]Thus, on May 25, 1992, petitioner filed a complaint for illegal dismissal with prayer for service incentive leave pay and 13th month differential pay, with the National Labor Relations Commission, National Capital Region, Arbitration Branch, docketed as NLRC-NCR Case No. 05-02912-92.[6]In her position paper dated August 3, 1992 and filed before labor arbiter Raul T. Aquino, petitioner alleged that her employment was terminated not due to the alleged low volume of work but because she "signed a petition for certification election among the rank and file employees of respondents," thus charging private respondent with committing unfair labor practices. Petitioner further complained of non-payment of service incentive leave benefits and underpayment of 13th month pay.[7]On the other hand, private respondent, in its position paper filed on July 16, 1992, maintained that it had valid reasons to terminate petitioners employment and disclaimed any knowledge of the existence or formation of a union among its rank-and-file employees at the time petitioners services were terminated.[8]Private respondent stressed that its business "relies heavily on companies availing of its services. Its retention by client companies with particular emphasis on data encoding is on a project to project basis,"[9]usually lasting for a period of "two (2) to five (5) months." Private respondent further argued that petitioners employment was for a "specific project with a specified period of engagement." According to private respondent, "the certainty of the expiration of complainants engagement has been determined at the time of their (sic) engagement (until 27 November 1991) or when the project is earlier completed or when the client withdraws," as provided in the contract.[10]"The happening of the second event [completion of the project] has materialized, thus, her contract of employment is deemed terminated per the Brent School ruling."[11]Finally, private respondent averred that petitioners "claims for non-payment of overtime time (sic) and service incentive leave [pay] are without factual and legal basis."[12]In a decision dated August 25, 1992, labor arbiter Raul T. Aquino, ruled in favor of petitioner, and accordingly ordered her reinstatement without loss of seniority rights and privileges, and the payment of backwages and service incentive leave pay. The dispositive part of the said decision reads:Missdaa"WHEREFORE, responsive to the foregoing, judgment is hereby rendered ordering respondents to immediately reinstate complainant [petitioner herein] as a regular employee to her former position without loss of seniority rights and privileges and to pay backwages from the time of dismissal up to the date of this decision, the same to continue until complainant [s] [petitioner herein] actual reinstatement from (sic) the service. Respondents are likewise ordered to pay complainant [petitioner herein] service incentive leave pay computed as follows:SdaadscBackwages:10/18/91 8/25/92 = 10.23 mos.P118.00 x 26 x 10.23 mos. = P31, 385.64Service Incentive Leave Pay1989 = P89.00 x 5 days = P445.001990 = 106 x 5 days = P530.001991 = 118 x 5 days =P590.00P 1, 565.00TotalP32, 950.64SO ORDERED."[13]In his decision, the labor arbiter found petitioner to be a regular employee, ruling that "[e]ven if herein complainant [petitioner herein] had been obstensively (sic) hired for a fixed period or for a specific undertaking, she should be considered as [a] regular employee of the respondents in conformity with the provisions (sic) laid down under Article 280 of the Labor Code,"[14]after finding that "[i]t is crystal clear that herein complainant [petitioner herein] performed a job which are (sic) usually necessary or desirable in the usual business of respondent [s]."[15]The labor arbiter further denounced "the purpose behind the series of contracts which respondents required complainant to execute as a condition of employment was to evade the true intent and spirit of the labor laws for the workingmen."[16]Furthermore, the labor arbiter concluded that petitioner was illegally dismissed because the alleged reason for her termination, that is, low volume of work, is "not among the just causes for termination recognized by law,"[17]hence, he ordered her immediate reinstatement without loss of seniority rights and with full backwages. With regard to the service incentive leave pay, the labor arbiter decided "to grant the same for failure of the respondents to fully controvert said claims."[18]Lastly, the labor arbiter rejected petitioners claim for 13th month pay "since complainant [petitioner herein] failed to fully substantiate and argued (sic) the same."[19]On appeal, the NLRC reversed the decision of the labor arbiter in a decision[20]promulgated on September 27, 1993, the dispositive part of which reads:"WHEREFORE, the appealed decision is hereby set aside. The complaint for illegal dismissal is hereby dismissed for being without merit. Complainants [petitioner herein] claim for service incentive leave pay is hereby remanded for further arbitration.SO ORDERED."[21]The NLRC ruled that "[t]here is no question that the complainant [petitioner herein], viewed in relation to said Article 280 of the [Labor] Code, is a regular employee judging from the function and/or work for which she was hired. xxx xxx. But this does not necessarily mean that the complainant [petitioner herein] has to be guaranteed a tenurial security beyond the period for which she was hired."[22]The NLRC held that the complainant [petitioner herein], while hired as a regular worker, is statutorily guaranteed, in her tenurial security, only up to the time the specific project for which she was hired is completed."[23]Hence, the NLRC concluded that "[w]ith the specific project "at RCBC 014" admittedly completed, the complainant [petitioner herein] has therefore no valid basis in charging illegal dismissal for her concomittant (sic) dislocation."[24]In an Order dated January 11, 1994, the NLRC denied petitioners motion for reconsideration.[25]In this petition forcertiorari, petitioner, for and in her behalf, argues that (1) the public respondent "committed grave abuse of discretion when it ignored the findings of Labor Arbiter Raul Aquino based on the evidence presented directly before him, and when it made findings of fact that are contrary to or not supported by evidence,"[26](2) "[p]etitioner was a "regular employee," NOT a "project employee" as found by public respondent NLRC,"[27](3) "[t]he termination of petition (sic) was tainted with unfair labor practice,"[28]and (4) the public respondent "committed grave abuse of discretion in remanding the awarded service incentive leave pay for further arbitration."[29]The petition is impressed with merit.SdaadscWe agree with the findings of the NLRC that petitioner is a project employee. The principal test for determining whether an employee is a project employee or a regular employee is whether the project employee was assigned to carry out a specific project or undertaking, the duration and scope of which were specified at the time the employee was engaged for that project.[30]A project employee is one 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 or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.[31]In the instant case, petitioner was engaged to perform activities which were usually necessary or desirable in the usual business or trade of the employer, as admittedly, petitioner worked as a data encoder for private respondent, a corporation engaged in the business of data encoding and keypunching, and her employment was fixed for a specific project or undertaking the completion or termination of which had been determined at the time of her engagement, as may be observed from the series of employment contracts[32]between petitioner and private respondent, all of which contained a designation of the specific job contract and a specific period of employment.However, even as we concur with the NLRCs findings that petitioner is a project employee, we have reached a different conclusion. In the recent case of Maraguinot, Jr. vs. NLRC,[33]we held that "[a] project employee or a member of a work pool may acquire the status of a regular employee when the following concur:Rtcspped1) There is a continuous rehiring of project employees even after [the] cessation of a project;[34]and2) The tasks performed by the alleged "project employee" are vital, necessary and indispensable to the usual business or trade of the employer.[35]"The evidence on record reveals that petitioner was employed by private respondent as a data encoder, performing activities which are usually necessary or desirable in the usual business or trade of her employer, continuously for a period of more than three (3) years, from August 26, 1988 to October 18, 1991[36]and contracted for a total of thirteen (13) successive projects. We have previously ruled that "[h]owever, the length of time during which the employee was continuously re-hired is not controlling, but merely serves as a badge of regular employment."[37]Based on the foregoing, we conclude that petitioner has attained the status of a regular employee of private respondent.At this point, we reiterate with emphasis that:Korte"xxx xxx"At this time, we wish to allay any fears that this decision unduly burdens an employer by imposing a duty to re-hire a project employee even after completion of the project for which he was hired. The import of this decision is not to impose a positive and sweeping obligation upon the employer to re-hire project employees.What this decision merely accomplishes is a judicial recognition of the employment status of a project or work pool employee in accordance with what isfait accompli, i.e., the continuous re-hiring by the employer of project or work pool employees who perform tasks necessary or desirable to the employer's usual business or trade.Let it not be said that this decision "coddles" labor, for asLao[38]has ruled,project or work pool employees who have gained the status of regular employees are subject to the "no work-no pay" principle, to repeat:"A work pool may exist although the workers in the pool do not receive salaries and are free to seek other employment during temporary breaks in the business, provided that the worker shall be available when called to report for a project. Although primarily applicable to regular seasonal workers, this set-up can likewise be applied to project workers insofar as the effect of temporary cessation of work is concerned. This is beneficial to both the employer and employee for it prevents the unjust situation of "coddling labor at the expense of capital" and at the same time enables the workers to attain the status of regular employees.Sclaw"The Court's ruling here is meant precisely to give life to the constitutional policy of strengthening the labor sector, but, we stress, not at the expense of management. Lest it be misunderstood, this ruling does not mean that simply because an employee is a project or work pool employee even outside the construction industry, he is deemed,ipso jure, a regular employee.All that we hold today is that once a project or work pool employee has been: (1) continuously, as opposed to intermittently, re-hired by the same employer for the same tasks or nature of tasks; and (2) these tasks are vital, necessary and indispensable to the usual business or trade of the employer, then the employee must be deemed a regular employee, pursuant to Article 280 of the Labor Code and jurisprudence. To rule otherwise would allow circumvention of labor laws in industries not falling within the ambit of Policy Instruction No. 20/Department Order No. 19, hence allowing the prevention of acquisition of tenurial security by project or work pool employees who have already gained the status of regular employees by the employer's conduct."[39](emphasis supplied)Being a regular employee, petitioner is entitled to security of tenure and could only be dismissed for a just or authorized cause, as provided in Article 279 of the Labor Code, as amended:Sclex"Art. 279. Security of Tenure In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement."The alleged causes of petitioners dismissal (low volume of work and belatedly, completion of project) are not valid causes for dismissal under Articles 282 and 283 of the Labor Code. Thus, petitioner is entitled to reinstatement without loss of seniority rights and other privileges, and to her full backwages, inclusive of allowances, and to her other benefits or their monetary equivalent computed from the time her compensation was withheld from her up to the time of her actual reinstatement. However, complying with the principles of "suspension of work" and "no work, no pay" between the end of one project and the start of a new one, in computing petitioners backwages, the amounts corresponding to what could have been earned during the periods from the date petitioner was dismissed until her reinstatement when private respondent was not undertaking any project, should be deducted.XlawWith regard to petitioners claim for service incentive leave pay, we agree with the labor arbiter that petitioner is entitled to service incentive leave pay, as provided in Article 95 of the Labor Code, which reads:"Article 95 Right to service incentive leave(a) Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay.xxx xxx xxx."Having already worked for more than three (3) years at the time of her unwarranted dismissal, petitioner is undoubtedly entitled to service incentive leave benefits, computed from 1989 until the date of her actual reinstatement. As we ruled in the recent case ofFernandez vs. NLRC,[40]"[s]ince a service incentive leave is clearly demandable after one year of service whether continuous or broken or its equivalent period, and it is one of the "benefits" which would have accrued if an employee was not otherwise illegally dismissed, it is fair and legal that its computation should be up to the date of reinstatement as provided under Section [Article] 279 of the Labor Code, as amended, which reads:Xsc"ART. 279. Security of Tenure. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to hisother benefits or their monetary equivalentcomputed from the time his compensation is withheld from him up to the time of his actual reinstatement." (emphasis supplied).WHEREFORE, the instant petition is GRANTED. The assailed decision of the National Labor Relations Commission in NLRC NCR CA No. 003845-92 dated September 27, 1993, as well as its Order dated January 11, 1994, are hereby ANNULLED and SET ASIDE for having been rendered with grave abuse of discretion, and the decision of the Labor Arbiter in NLRC NCR Case No. 05-02912-92 is REINSTATED with MODIFICATION as above-stated, with regard to the computation of back wages and service incentive leave pay.ScSO ORDERED.Bellosillo, (Chairman), Mendoza, Quisumbing,andDe Leon, Jr., JJ.,concur.

Republic of the PhilippinesSUPREME COURTManilaTHIRD DIVISIONG.R. No. 105892 January 28, 1998LEIDEN FERNANDEZ, BRENDA GADIANO, GLORIA ADRIANO, EMELIA NEGAPATAN, JESUS TOMONGHA, ELEONOR QUIANOLA, ASTERIA CAMPO, FLORIDA VILLACERAN, FLORIDA TALLEDO, MARILYN LIM and JOSEPH CANONIGO,petitioners,vs.NATIONAL LABOR RELATIONS COMMISSION, FOURTH DIVISION;MARGUERITE1LHUILLIER AND/OR AGENCIA CEBUANA-H. LHUILLIER,respondents.PANGANIBAN,J.:Is failure to attend hearings before the labor arbiter a waiver of the right to present evidence? Are moral damages included in the computation of "monetary award" for purposes of determining the amount of the appeal bond? Is there a limit to the amount of service incentive leave pay and backwages that may be awarded to an illegally dismissed employee?The CaseThese are the main questions raised in this petition forcertiorariunder Rule 65 of the Rules of Court assailing the March 11, 1992 Decision2of Respondent National Labor Relations Commission (NLRC),3the dispositive portion of which reads:4WHEREFORE, premises considered, the appealed decision is hereby declared VACATED and the entire records of these cases are hereby ordered remanded to the Regional Arbitration Branch VII for further proceedings.This petition also challenges the NLRC's May 29, 1992 Resolution denying the motion for reconsideration.The decision5vacated by the NLRC and penned by Labor Arbiter Gabino A. Velasquez, Jr. disposed as follows:6WHEREFORE, judgment is hereby rendered in favor of the complainants and against the respondent. The respondent is hereby ordered:1. To reinstate the complainants to their respective position [sic] at the Agencia Cebuana with full backwages without qualification; if reinstatement is not feasible, for one reason or another, to pay to the complainants their respective separation pay, service incentive leave pay with full backwages without qualification computed hereunder as follows:1. LEIDEN FERNANDEZ:

a) Separation Pay for 6 yearsP 8,640.00

b) Service Incentive Leave (6 yrs.)3,322.50

c) Backwages for one year only34,560.00

TOTALP 46,522.50

2. GLORIA ADRIANO:




TOTALP 79,866.25

3. EMELIA NEGAPATAN:




TOTALP 85,272.00

4. JESUS P. TOMONGHA:


b) Service Incentive Leave19,478.25


TOTALP 106,973.25

5. ELEONOR QUIANOLA:


b) Service Incentive Leave8,022.00


TOTALP 64,642.00

6. ASTERIA CAMPO:




TOTALP 62,160.25

7. FLORIDA VILLACERAN:




TOTALP 70,357.25

8. FLORIDA TALLEDO:




TOTALP 74,607.00

9. BRENDA GADIANO:




TOTALP 63,313.25

10. MARILYN LIM:




TOTALP 62,330.00

11. JOSEPH CANONIGO:




TOTALP 36,138.50

2) To pay to all complainants the amount of P100,000.00 for moral damages and the amount of another P100,000.00 for exemplary damages, plus the amount of P98,018.25 as attorney's fees representing 10% of the total award and the amount of P30,000.00 for litigation expenses.The totality of the award amounting to P1,078,200.55 must be deposited with this Office ten (10) days from receipt of this decision for further disposition. However, the payment of backwages will be computed as of the actual date of payment provided it will not exceed a period of three years.The FactsThe factual milieu of this case is recited by the solicitor general in his Comment dated December 21, 1992 as follows:71. The instant case stemmed from a consolidated complaint against private respondents Agencia Cebuana-H. Lhuillier and/or Margueritte Lhuillier (Lhuillier) for illegal dismissal (Rec., pp. 56-58). The Agencia Cebuana is a sole proprietorship operated by Margueritte Lhuillier.2. Two (2) Position Papers were filed by petitioners, one by Leiden E. Fernandez, Gloria B. Adriano, Emilia A. Negapatan, Jesus P. Tomongha, Eleonor A. Quianola, Asteria C. Ocampo [sic], Florida Villaceran, Florida B. Tallado [sic] and Brenda A. Gadiano (Rec., pp. 79-88) and the other by Marilyn E. Lim and Joseph Canonigo (Exhibit "C-4").3. In their Position Papers, petitioners alleged that they were employed by Lhuillier, as follows:NamePositionDate of EmploymentLatest Salary/MonthDate of Dismissal

1. Leiden E. FernandezCashierDec. 3, 1984P2,880.00July 19, 1990

2. Gloria B. AdrianoAppraiserJuly 10, 19733,360.00July 19, 1990

3. Emilia A. NegapatanSales GirlMarch 9, 19662,980.00July 19, 1990

4. Jesus P. TomonghaOffice ClerkJuly 19573,070.00July 19, 1990

5. Eleonor A. QuianolaOffice ClerkDec. 8, 19762,980.00July 21, 1990

6. Asteria C. CampoClerkMay 27, 19772,960.00July 19, 1990

7. Florida VillaceranSales ClerkMarch 8, 19732,960.00July 19, 1990

8. Florida B. TalledoPawnshop WriterJune 19, 19723,050.00July 19, 1990

9. Brenda A. GadianoPawnshop TellerMarch 7, 19773,015.00July 19, 1990

10. Marilyn E. LimBranch ManagerJune 19843,700.00Feb. 16, 1990

11. Joseph M. CanonigoRecord KeeperJune 19882,700.00July 14, 1990

Petitioners Fernandez, Adriano, Negapatan, Tomongha, Quianola, Campo, Villaceran, Talledo, and Gadiano further alleged that prior to and during early July 1990, they "demanded" from Margueritte Lhuillier an increase in their salaries since her business was making good and that she was evading payment of taxes by making false entries in her records of account; that Lhuillier became angry and threatened them that something would happen to their employment if they would report her to the BIR; that shortly thereafter, Lhuillier suspected them of stealing jewelry from the pawnshop; that on July 19, 1990, Lhuillier verbally informed them not to report for work as their employment had been terminated; that from July 20, 1990 they did not report for work; and on July 23, 1990, they filed the instant complaint (Rec., pp. 79-88).On their part, petitioners Lim and Canonigo alleged that in early January 1990 and in June 1990, respectively, they demanded increases in their salaries since they noted that Lhuillier had a very lucrative business besides evading tax payments by making false entries in her records of account; that they also informed her that they intended to join the Associated Labor Union (ALU), which made Lhuillier angry, causing her to threaten them that should they report her to the BIR and join the ALU something would happen to their employment; that Lhuillier advised them to tender their resignations as they were reportedly responsible for some anomalies at the Agencia Cebuana-H Lhuillier; that Lhuillier assured them that they will be given separation pay; that they asked Lhuillier that they be allowed to confront the persons who reported to her about their supposed involvement in the alleged anomalies but she ignored it and told them to tender their respective resignations effective February 16, 1990 (for Lim) and July 14, 1990 (for Canonigo); and that they were not given separation pay (Decision, pp. 6-8; Rec., pp. 256-258).5. In her Position Paper, Lhuillier, represented initially by Atty. Malcolm V. Seno, alleged that:a) In the case of Marilyn Lim, on January 13, 1990, she was informed that an investigation will be conducted by Lhuillier because of the report received by Flora Go, also an employee of Lhuillier, that Lim sold to a company consumer her own jewelry, in violation of the company house rules; on January 22, 1990, a Notice of Intended Termination was served upon her requiring her to submit a written explanation within 48 hours from receipt; Lim did not submit a written explanation but actively participated in the investigation where she admitted having committed the violation complained of; in view of her admission of guilt, the company lawyer recommended to the management her demotion and transfer without reduction of salary; after Lim's receipt of a copy of the investigation report, she sent through her lawyer a letter signifying her intention to resign and her willingness to execute a promissory note for her indebtedness; the company gave Lim a draft of the promissory note which was never returned by her; on February 24, 1990 she tendered an irrevocable letter of resignation, hence, she was not terminated; and because of the malicious and false complaint filed by Lim, the company was compelled to file a counter-complaint for Perjury against her before the Office of the City Prosecutor of Cebu City (Rec., pp. 92-93; 97).b) In the case of Jesus Tomongha, he was found to have stolen "rematado" jewelries worth P70,670.00 sometime in March 1990; instead of attending the investigation scheduled for this offense, he abandoned his job although his application for leave of absence was not approved; Lhuillier asked the company lawyer to talk with Tomongha for him to return to work so that he could pay his pecuniary liability out of his salary; Lhuillier made it a pre-condition for his return to work that he executes a promissory note for his indebtedness; on April 10, 1990, he executed a promissory note and was allowed to return to work; on July 20, 1990, he and the other petitioners, abandoned their employment; he was not dismissed but he was allowed to return to work and was only made to execute a promissory note when the company found out sometime in March 1990 that he had stolen "rematado" jewelries worth P70,670.00 (Rec., pp. 97-101).c) In the case of the other petitioners, on July 19, 1990, Gloria Adriano was found by Flora Go to have over-declared the weights and values of certain items of jewelry pawned to the company, as a result of which, upon investigation, the pawnshop was found to have lost the amount of P174,850.00; a letter dated July 19, 1990 was served upon Adriano to explain within 72 hours why she should not be terminated; on July 20, 1990, Gloria Adriano, Florida Villaceran, Emilia Negapatan, Brenda Gadiano, Leiden Fernandez, Jesus Tomongha, Asteria Campo and Florida Talledo did not report for work although no requests for leave of absence were filed by them, which absence violated company rules; on July 21, 1990, the said employees did not report for work; another employee, Eleonor Quianola, also did not report for work although she did not file a request for leave of absence; on July 23, 1990 the said nine (9) employees did not report for work; because of this unusual incident, the management decided to make an inventory of the transactions in Agencia Cebuana and the "rematado" diamond-studded jewelry; the inventory showed that the pawnshop incurred a considerable loss as a result of the anomalous overpricing of pawned items and the employees immediately responsible were Gloria Adriano, Florida Talledo and Leiden Fernandez, being the appraiser, writer and prayer, respectively; the inventory also showed that of the "rematado" diamond-studded jewelries, items worth P1,592,200.00 were lost for which Florida Villaceran and Emilia Negapatan were directly responsible, being the employees entrusted with their safekeeping; a case of Estafa was filed on July 24, 1990 before the Office of the City Prosecutor of Cebu City against Gloria Adriano, Florida Talledo, Leiden Fernandez, Asteria Campo, Brenda Gadiano, Florida Villaceran, Emilia Negapatan, and Jesus Tomongha and three (3) other unknown persons; a case of Theft was filed on August 16, 1990 with the Office of the City Prosecutor of Cebu City against Florida Villaceran and Emilia Negapatan; when Lhuillier left for Hongkong on July 19, 1990; she did not terminate the employment of Gloria Adriano nor was she advised not to report for work, although a letter was served upon her requiring her to explain within 72 hours why she should not be terminated from her employment; when Lhuillier arrived from Hongkong, she caused to be served upon the eight (8) petitioners who joined Adriano, letter dated July 25, 1990 requiring them to explain the sudden abandonment of their posts; petitioners, except Lim, instead of giving an explanation, claimed that their employment[s] were terminated on July 19, 1990; Lhuillier was prevented from pursuing any action in respect of the illegal abandonment of their work by the nine (9) petitioners because she was served with summons in the instant case; petitioners did not report for work and voluntarily abandoned their work on July 19, 1990 in order to dramatize their sympathy for Gloria Adriano, and they were not dismissed from their employment; their demand for an award of damages and attorney's fees was unwarranted; petitioners had no cause of action against Lhuillier because they were not terminated from employment; and Quianola could not have been terminated from employment on July 21, 1990 because Lhuillier was in Hongkong at that time (Rec., pp. 96-108).6. Trial on the merits ensued and hearings were scheduled on July 5, 8, and 12, 1991.7. The hearing scheduled on July 5, 1991 was, however, postponed by agreement of the parties as shown in the minutes of the proceedings on July 8, 1991:xxx xxx xxxREMARKSThis case was scheduled for the cross-examination of the last witnesses (sic), Marilyn Lim, who is one of the complainants of this (sic) consolidated cases.The scheduled dates was (sic) July 5, 8, and 12, 1991 which dates were for the crossexamination (sic) of Marilyn Lim and for the respondents to present their evidence.The July 5, 1991 (sic) was postponed upon agreement [sic] of the parties and counsels and that it was aggreed (sic) the repondents (sic) counsel will cross examine Marilyn Lim on July 8, 1991 and for the respondents to present their evidence on July 12, 1991. In as much (sic) as the respondents and their counsel failed to appear today to cross-examine Marilyn Lim, we moved that the respondent be declared having waived their rights (sic) to cross-examine Marilyn Lim. (Rec., p. 176).8. On July 8, 1991, counsel for petitioners filed Complainants' Formal Offer of Evidence (Rec., pp. 182-187).9. At the hearing scheduled on July 12, 1991, Atty. Seno and Lhuillier failed to appear. Thus, counsel for petitioners submitted the instant case for resolution (Rec., p.181).10. On July 18, 1991, a "Ruling" was issued by Labor Arbiter Velasquez, admitting complainants' exhibits (Rec., pp. 189-190).11. On July 30, 1991, counsel for petitioners filed an Urgent Motion For Early Decision (Rec., pp. 191-193).12. On August 6, 1991, Atty. Seno filed a Comment to the Offer of Exhibits With Counter-Manifestation stating that:[T]he failure of undersigned to appear on the date of hearing was for the reason that his car bogged down, as in fact he called up the Office of the Hearing Officer. While his absence may be considered a waiver to cross-examine the witness, it cannot be taken to mean forfeiture of the right to present admissible evidence against the complainant witness. (Rec., pp. 195-197)13. On August 9, 1991, Atty. Seno filed his Comment on Complainants' Urgent Motion For Early Decision praying that Lhuillier be given a period of ten (10) days from August 9, 1991 within which to submit additional affidavits and thereafter to consider the cases submitted for resolution (Rec., pp. 199-200).14. On August 15, 1991, petitioners filed a "Counter-Comment On Respondent's Comment of [sic] Motion For Early Decision' alleging that under Rule VII, Section 10 (c) of the Revised Rules of Court of the NLRC which reads:xxx xxx xxxc) In case of unjustified non-appearance by the respondent during her/his turn to present evidence, despite due notice, the case shall be considered submitted for decision on the basis of the evidence so far presented.the non-appearance of Lhuillier or its counsel on the scheduled dates of hearing on July 8 and 12, 1991, was clearly unjustified (Rec., pp. 202-205).15. On October 14, 1991, Atty. Seno filed a Motion Reiterating The Request For Submission Of Additional Affidavits therein alleging that Lhuillier's previous motion to present additional affidavits had not been acted upon; and that he had not received an order considering the instant case submitted for resolution. With the motion, Lhuillier submitted the affidavits of additional witnesses, praying that said supplemental affidavits be admitted and presentation of additional evidence be allowed (Rec., pp. 207-209).16. On October 16, 1991, petitioners filed an Opposition On [sic] Respondents' Request For Submission Of Additional Affidavits And Urgent Motion To Release Decision, alleging that counsel for Lhuillier was given ample opportunity to present his evidence; that by his failure to appear at the scheduled hearings without any reason or prior motion for postponement, he was deemed to have waived his right to present evidence; and that about the later part of August 1991, upon learning that Labor Arbiter Velasquez would be transferred to NLRC, Tacloban, they (petitioners) inquired about the status of the instant case and they were informed by Labor Arbiter Velasquez that a Decision was already rendered (Rec., pp. 203-205).On August 30, 1991, the labor arbiter rendered a decision in favor of petitioners. On appeal, Respondent NLRC vacated the labor arbiter's order and remanded the case for further proceedings. It subsequently denied the motion for reconsideration.Respondent NLRC's RulingRuled the NLRC:8In resolving this issue [of due process], it is necessary to go over the pertinent provisions of the 1990 NLRC Rules of Procedure, more particularly Sec. 11, Rule V.Rule V Proceedings Before the Labor Arbiters:Sec. 11. Non-appearance of Parties at Conference/Hearings. (a) Two (2) successive absences at a conference/hearing by the complainant or petitioner, who was duly notified thereof may be sufficient cause to dismiss the case without prejudice. Where proper justification, however, is shown by proper motion to warrant the re-opening of the case, the Labor Arbiter shall call a second hearing and continue the proceedings until the case is finally decided. Dismissal of the case for the second time due to the unjustified non-appearance of the complainant or petitioner who was duly notified thereof shall be with prejudice.b) In case of two (2) successive non-appearances by the respondent, despite due notice, during the complainant's presentation of evidence, the complainant shall be allowed to present evidenceex-parte, subject to cross-examination by the respondent, where proper, at the next hearing. Upon completion of such presentation of evidence for the complainant, another notice of hearing for the reception of the respondent's evidence shall be issued, with a warning that failure of the respondent to appear shall be construed as submission by him of the case for resolution without presenting his evidence.c) In case of two (2) successive unjustified non-appearances by the respondent during his turn to present evidence, despite due notice, the case shall be considered submitted for decision on the basis of the evidence so far presented.The established fact is that July 8 and 12, 1991 were the scheduled dates for the cross-examination of Marilyn Lim, last witness for the complainants and the start of respondents' presentation of evidence. It is also not disputed that respondent and counsel failed to appear at the July 8 hearing.A scrutiny of the minutes of the July 8, 1991 hearing would however reveal that date was alloted [sic] purposely for the cross-examination of Marilyn Lim and that respondents' presentation of evidence would start on July 12, 1991.(page 176, records) Technically, the Labor Arbiter was correct in ruling that respondent had waived her right to cross-examine complainant Marilyn Lim when she failed to appear on July 8, 1991.But definitely, it was error for him to consider the case submitted for decision when respondent failed to appear on July 12, 1991.The above-cited rules are clear and explicit.It takes two successive and unjustified non-appearance on the part of respondent before he or she can be considered to have waived his/her right to present evidence and thereafter to consider the case submitted for decision on the basis of the evidence thus far presented.Respondent's absence on July 12, 1991 was but her first since, as pointed out, it was on that day that she was supposed to start presenting her evidence. What the Labor Arbiter should have done was to set another date for the reception of respondent's evidence. If she still failed to appear, his reliance on Sec. 11 (c), Rule V of the New Rules of Procedure of the NLRC would have been justified and this Commission would not hesitate to uphold him on that respect. As it is, the questioned ruling was, indeed, premature to say the least. While concern for the less privileged workers and speediin [sic] the disposition of labor cases are highly commendable, those considerations should not run roughshod over well-established principles of due process.It may be argued that the evidence sought to be introduced by respondent are contained in the additional affidavits which now form part of the records, hence this Commission can now decide this appeal on the merits. It is with more reason that this case should be remanded not only to allow respondent to formally present her evidence, but also to allow complainants to cross-examine and confront their accusers. (Emphasis supplied.)Not satisfied, petitioners filed the present petition before us under Rule 65 of the Rules of Court.9The IssuesPetitioners submit to this Court the following issues:10AThe Honorable Commission has committed serious reversible error amounting to a grave abuse of discretion and in excess of jurisdiction in finding that the private respondent was not afforded due process by the hearing labor arbiter, particularly the reception of private respondent's evidence.BThe Honorable Commission has committed serious reversible error amounting to a grave abuse of discretion and in excess of jurisdiction in finding that the declaration by the hearing labor arbiter submitting these cases for decision on July 12, 1991 was not in accordance with Rule V Section II of the 1990 New Rules of Procedure of the NLRC (attached hereto as annex "C").CThe Honorable Commission has committed serious reversible error amounting to a grave abuse of discretion and in excess of jurisdiction in giving importance to private respondent's additional alleged affidavits which were filed only on October 14, 1991 (attached hereto as annex "G-1"), by way of attaching the same in private respondent's motion reiterating request for submission of additional affidavits (attached hereto as annex "G"), long after the hearing labor arbiter rendered a decision on August 30, 1992 (attached hereto as annex "E"), contrary to the private respondent's prayer and commitment (attached hereto as annex "F-1").DThe Honorable Commission has committed serious reversible error amounting to a grave abuse of discretion, in substance and in law, in not modifying the appealed decision of the hearing labor arbiter (attached hereto as annex "E") with respect to the accuracy of the monetary awards pursuant to the pertinent provisions of the Labor Code, its implementing rules and regulations and pursuant particularly to the celebrated case ofRoche (Philippines), et als. [sic]vs.NLRC, et als., [sic] G.R. No. 83335, October 12, 1989.EThe Honorable Commission has no jurisdiction to entertain private respondent's two appeals.Put differently but more plainly, the issues in this case are as follows:1. Did the NLRC acquire jurisdiction over the appeal notwithstanding the alleged insufficiency of the appeal bond?2. Were private respondents deprived of due process of law by the labor arbiter?3. Were petitioners illegally dismissed?4. Assuming petitioners were illegally dismissed, was the computation of the backwages, service incentive leave pay and damages valid and correct?The Court's RulingThe petition is meritorious. We hold that the private respondents were not denied due process of law by the labor arbiter; and that nine of the petitioners were illegally dismissed, but that Petitioners Lim and Canonigo were not.First Issue: Insufficiency of Appeal BondPetitioners contend that Respondent NLRC did not acquire jurisdiction over the appeal of private respondents because the appeal bond was insufficient. Although the total monetary award in their favor was P1,078,200.55, private respondents posted a cash bond in the amount of P752,183.00 only. In computing the monetary award for the purpose of posting an appeal bond, private respondents relied on Rule VI, Section 6 of the 1990 New Rules of Procedure of the NLRC and excluded the award for damages, litigation expenses and attorney's fees. Petitioners argue however that the said rule cannot prevail over Article 223 of the Labor Code, which does not provide for such exclusion.We agree with private respondents. Article 223 of the Labor Code provides:xxx xxx xxxIn case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from.In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall immediately be executory, even pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The posting of a bond by the employer shall not stay the execution for reinstatement provided therein . . . (Emphasis supplied.)On the other hand, Rule VI, Section 6 of the 1990 NLRC New Rules of Procedure,11invoked by private respondent, provides:Sec. 6. Bond. In case of the decision of a Labor Arbiter involves a monetary award, an appeal by the employer shall be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission or the Supreme Court in an amount equivalent to the monetary award.The Commission may, in meritorious cases and upon Motion of the Appellant, reduce the amount of the bond. However, an appeal is deemed perfected upon the posting of the bond equivalent to the monetary awardexclusive of moral and exemplary damages as well as attorney's fees.Nothing herein however, shall be construed as extending the period of appeal. (Emphasis supplied.)There is no conflict between the two provisions. Article 223 lays down the requirement that an appeal bond should be filed. The implementing rule, on the other hand, explains how the appeal bond shall be computed. The rule explicitly excludes moral and exemplary damages and attorney's fees from the computation of the appeal bond. This exclusion has been recognized by the Court in a number of cases. Hence, inErectors vs.NLRC,12the Court nullified an NLRC order requiring the posting of an appeal bond which, among others, "even included in the computation the award of P400,000.00for moral and exemplary damages." Indeed, the said implementing rule is a contemporaneous construction of Article 223 by the NLRC pursuant to the mandate of the Labor Code; hence, it is accorded great respect by this Court.13In line with the desired objective of our labor laws to resolve controversies on their merits, the Court has held that the filing of a bond in appeals involving monetary awards should be given liberal construction.14The rule requiring the employer to post a cash or surety bond to perfect his appeal assures the workers that they will receive the money judgment awarded to them upon the dismissal of the employer's appeal. It also discourages employers from using an appeal to delay or even evade their obligation to satisfy the just and lawful claims of their employees.15Hence, deducting from the total monetary award of P1,078,200.55 the amount of P200,000.00 for moral and exemplary damages, P98,018.25 for attorney's fees and P30,000.00 for litigation expenses, the amount of the bond should be P750,182.55. Thus, the appeal bond actually posted in the amount of P752,183 is even more than the amount of appeal bond that may be required from private respondents under Respondent NLRC's rules.Second Issue: No Denial of Due ProcessThe NLRC ruled that private respondents were denied due process because the labor arbiter deemed the case submitted for resolution when they failed to attend the hearings on July 8 and 12, 1991. Under the NLRC Rules of Procedure, a case may be deemed submitted for decision on the basis of the evidence thus far adduced in the event respondent incurs two successive absences "during his turn to present evidence." While the hearing on July 12, 1991 was for the presentation of herein private respondents' evidence, the NLRC found that the hearing on July 8, 1991 was scheduled for the cross-examination of petitioners' witness. Since the absences were not made during respondents' "turn to present evidence," public respondent remanded the case to the labor arbiter for "further proceedings."Petitioners dispute the NLRC ruling, contending that the parties in this case were able to submit their respective position papers together with supporting affidavits and other documents. They stress that private respondents' failure to attend the hearings on July 8 and 12, 1991, without any justification or motion for postponement, warranted the submission of the case for decision pursuant to Section 11, Rule V of the 1990 New Rules of Procedure of the NLRC. They insist that the hearing on July 8, 1991 was scheduled to afford private respondents not only an opportunity "to cross-examine petitioner's last witness, Marilyn Lim, [but also] to start the presentation of [their] evidence . . ."16On the other hand, private respondents argue that the labor arbiter erred in considering the absence of their counsel during the hearings scheduled on July 8 and July 12, 1991 as waiver not only of the right to cross-examine but of the right to present evidence. They further contend that the labor arbiter released his decision notwithstanding the pendency of three unresolved motions.17These circumstances clearly show that they were not afforded due process of law.18To make a clear ruling, we again cite Rule V, Section 11 of the 1990 Rules of Procedure of Respondent NLRC, which provides:Sec. 11. Non-appearance of Parties at Conference/Hearings. (a) Two (2) successive absences at a conference/hearing by the complainant or petitioner, who was duly notified thereof, may be sufficient cause to dismiss the case without prejudice. Where proper justification, however, is shown by proper motion to warrant the re-opening of the case, the Labor Arbiter shall call a second hearing and continue the proceedings until the case is finally decided. Dismissal of the case of the second time due to the unjustified non-appearance of the complainant or petitioner who was duly notified thereof shall be with prejudice.(b) In case of two (2) successive non-appearances by the respondent, despite due notice, during the complainant's presentation of evidence, the complainant shall be allowed to present evidenceex parte, subject to cross-examination by the respondent, where proper, at the next hearing. Upon completion of such presentation of evidence for the complainant, another notice of hearing for the reception of the respondent's evidence shall be issued, with a warning that failure of the respondent to appear shall be construed as submission by him of the case for resolution without presenting his evidence.(c) In case of two (2) successive unjustified non-appearances by the respondent during his turn to present evidence, despite due notice, the case shall be considered submitted for decision on the basis of the evidence so far presented. (Emphasis supplied).It is undisputed that private respondents' counsel failed to attend the hearings on the two aforementioned dates. Moreover, the labor arbiter19and the NLRC held that the hearing on July 8, 1991 was only for the cross-examination of herein petitioners' witness, while that on July 12, 1991 was for the reception of private respondents' evidence. This notwithstanding, we hold that the NLRC committed grave abuse of discretion in remanding the case to the labor arbiter.Private respondents were able to file their respective position papers and the documents in support thereof, and all these were duly considered by the labor arbiter.20Indeed, the requirements of due process are satisfied where the parties are given the opportunity to submit position papers.21In any event, Respondent NLRC and the labor arbiter are authorized under the Labor Code to decide a case on the basis of the position papers and documents submitted.22The holding of an adversarial trial depends on the discretion of the labor arbiter, and the parties cannot demand it as a matter of right. In other words, the filing of position papers and supporting documents fulfilled the requirements of due process.23Therefore, there was no denial of this right because private respondents were given the opportunity to present their side.24Moreover, it should be noted that private respondents did not dispute the order of the labor arbiter submitting the case for decision immediately after its issuance. Likewise, they failed to present additional evidence on the date they themselves specified. It was only on August 6, 1991 that private respondents' counsel, in his Comments to the Offer of Exhibits25with counter-manifestation, explained his failure to appear at the hearing on July 8, 1991. His explanation, quoted below, is not compelling.26The failure of the undersigned to appear on the date of hearing was for the reason that his car bogged down, as in fact he called up the Office of the Hearing Officer. While his absence may be considered a waiver to cross-examine the witness, it cannot be taken to mean forfeiture of the right to present admissible evidence against the complainant-witness.Three days later on August 9, 1991, private respondents moved that they be given a "period of ten days from August 9, 1991" or until August 19, 1991 within which to submit additional affidavits, "after which, the cases will be deemed submitted for resolution on the basis of complainants' evidence and respondents' position paper and the additional affidavits."27Counsel, however, failed to submit the supposed evidence on said date. On October 14, 1991, private respondents filed a Motion Reiterating the Request for Submission of Additional Affidavits.28Again, private respondents did not submit the said documents.As earlier noted, the essence of due process is simply an opportunity to be heard, to explain one's side, or to seek a reconsideration of the action or ruling complained of. In the case at bar, private respondents were given ample opportunity to do just that but they failed, for unknown reasons, to avail themselves of such opportunity. They themselves moved that they be allowed to present additional affidavits on August 19, 1991, but they never did; no valid reason was given for their failure to do so. Their contention that the labor arbiter failed to rule on their motion deserves scant consideration. It is axiomatic in fact, it is plainly commonsensical that when a counsel asks for an extension of time within which to file a pleading, he must be ready with that pleading on the date specified in his motion, even absent a resolution or order disposing of his motion.We cannot remand the instant case to the labor arbiter for further proceedings. Respondent NLRC, on the basis of the evidence on record, could have resolved the dispute. To remand it to the labor arbiter is to delay needlessly the disposition of this case, which has been pending since July 23, 1990. It becomes our duty under the circumstances to determine the validity of the allegations of the parties. Remanding the case to the labor arbiter will just frustrate speedy justice and, in any event, would be a futile exercise, as in all probability the case would end up with this Court. We shall thus rule on the substantial claims of the parties.Third Issue: Petitioners Were Illegally DismissedPrivate respondents controvert the claim of illegal dismissal by maintaining that petitioners abandoned their employment. They aver that on July 19, 1990, Petitioner Gloria Adriano, pawnshop appraiser, over-declared the weights and values of pawned pieces of jewelry, which allegedly caused a loss of at least P174,850. In a letter dated July 19, 1990, they required Petitioner Adriano to explain within 72 hours why her employment should not be terminated. On July 20, 1990, however, Petitioner Adriano together with Petitioners Asteria Campo, Leiden Fernandez, Brenda Gadiano, Emilia Negapatan, Eleonor Quianola, Jesus Tomongha, Florida Talledo and Florida Villaceran allegedly did not report for work without any excuse. Thus, private respondents concluded that petitioners abandoned their employment. They also state that they intended to pursue legal action against the said petitioners for "illegal abandonment." But before they could do so, they received summons requiring them to respond to the complaints of illegal dismissal filed by the said nine petitioners.29On the other hand, petitioners maintain that on July 19, 1990, Private Respondent Marguerite Lhuillier, the pawnshop owner, told them not to report for work because their employment had been terminated. Thus, they did not report for work the following day, July 20, 1990. On July 23, 1990, they filed their respective complaints before the Regional Arbitration Board of Respondent NLRC.In view of the conflicting claims of the parties, we examined the records of this case and found that private respondents did not abandon their employment; rather, they were illegally dismissed.To succeed in pleading abandonment as a valid ground for dismissal, the employer must prove (1) the intention of an employee to abandon his or her employment and (2) an overt act from which such intention may be inferred;i.e., the employee showed no desire to resume his work.30Mere absence is not sufficient. The employer must prove a deliberate and unjustified refusal of the employee to resume his employment without any intention of returning.31Private respondents failed to discharge this burden. The claim of abandonment was inconsistent with the immediate filing of petitioners' complaint for illegal dismissal and prayer for reinstatement. For how can an inference be made that an employee had no intention of returning to work, when he filed a complaint for illegal dismissal praying for reinstatement three days after the alleged abandonment?32Moreover, considering that petitioner had been with Pawnshop Lhuillier for several years ranging from six (6) years to thirty three (33) years it is unlikely that they would simply leave their employment. Clearly, there is no cogent basis for private respondents' theory that said petitioners abandoned their work. In this light, we sustain the finding of the labor arbiter that said petitioners were illegally dismissed, with neither just cause nor due process.Petitioners Lim and Canonigo ResignedThe foregoing holding cannot apply to Petitioners Marilyn Lim and Joseph Canonigo, however.Lim claims that Private Respondent Lhuillier forced her to resign, but at the same time assured her of separation pay.33On February 5, 1990, prior to Lim's letter of resignation dated February 24, 1990,34her lawyer proposed the following to Private Respondent Lhuillier:351. That our client Ms. Marilyn Lim be given immediately a clearance upon resignation from your good company and payment of separation pay at the rate of one month per year of service; and2. That our client is willing to execute a promissory note on her indebtedness, and will pay upon the same terms prevailing before her resignation. Our client's ability to settle her indebtedness should be given kind consideration by your company considering that her eventual resignation will render her jobless for a while. Besides, per Investigation Report No. 2, Series of 1990, conducted by your Resident Counsel, Atty. Malcolm V. Seno, our client has impressed your Resident Counsel as a person of much valor and great determination whenshe immediately admitted her guilt.3. That the various checks she endorsed to your company be returned to our client, so that she could file a case against the issuers or drawers of the same, be it criminal or civil in nature. (Emphasis supplied).Petitioner Lim's testimony36that she has never been informed of any wrongdoing until her termination is belied by her assertions in the aforequoted letter. Her admission of the offense charged shows that she was not coerced to resign. Besides, the fact that her complaint for illegal dismissal was filed long after her resignation on February 24, 1990 suggests that it was a mere afterthought.On the other hand, Petitioner Canonigo contends that he was forced to sign his letter of resignation dated July 14, 1990, because Private Respondent Lhuillier received reports from other employees that he was responsible for some anomalies in the pawnshop. He also stated that he resigned because he was assured of separation pay.37Like Petitioner Lim, he did not immediately file a complaint for illegal dismissal, doing so only on July 23, 1990. From the foregoing facts, we see no cogent basis for holding that he was forced to resign. On the contrary, we find that he voluntarily tendered his resignation on the assurance of separation pay. Clearly, Petitioner Canonigo, like Lim, was not dismissed; rather, he resigned voluntarily.Fourth Issue: Service Incentive Leave Pay and DamagesIn his decision, the labor arbiter granted varying amounts of service incentive leave pay to the petitioners based on the length of their tenure;i.e., the shortest was six years and the longest was thirty-three years. While recommending that the labor arbiter's decision be reinstated substantially, the solicitor general recommended that the award of service incentive leave be limited to three years. This is based on Article 291 of the Labor Code which provides:Art. 291. Money Claims. All money claims arising from employer-employee relations accruing during the effectivity of this Code shall be filed within three (3) years from the time the cause of action accrued; otherwise they shall be forever barred.xxx xxx xxxPetitioners counter that Article 291 "speaks clearly on the prescription of filing [an] action upon monetary claims within three (3) years from the time the cause of action accrued, but it is not a prescription of a period of time for the computation of monetary claims."38The clear policy of the Labor Code is to grant service incentive leave pay to workers in all establishments, subject to a few exceptions. Section 2, Rule V, Book III of the Implementing Rules and Regulations39provides that "[e]very employee who has rendered at least one year of serviceshallbe entitled to a yearly service incentive leave of five days with pay." Service incentive leave is a right which accrues to every employee who has served "within 12 months, whether continuous or broken reckoned from the date the employee started working, including authorized absences and paid regular holidays unless the working days in the establishment as a matter of practice or policy, or that provided in the employment contracts, is less than 12 months, in which case said period shall be considered as one year."40It is also "commutable to its money equivalent if not used or exhausted at the end of the year."41In other words, an employee who has served for one year is entitled to it. He may use it as leave days or he may collect its monetary value. To limit the award to three years, as the solicitor general recommends, is to unduly restrict such right. The law indeed does not prohibit its commutation. Moreover, the solicitor general's recommendation is contrary to the ruling of the Court inBustamante et al.vs.NLRC et al.,42lifting the three-year restriction on the amount of backwages and other allowances that may be awarded an illegally dismissed employee, thus:Therefore, in accordance with R.A. No. 6715, petitioners are entitled to their full backwages,inclusive of allowances and other benefits or their monetary equivalent, from the time their actual compensation was withheld from them up to the time of their actual reinstatement. (Emphasis supplied.).Since a service incentive leave is clearly demandable after one year of service whether continuous or broken or its equivalent period, and it is one of the "benefits" which would have accrued if an employee was not otherwise illegally dismissed, it is fair and legal that its computation should be up to the date of reinstatement as provided under Section 279 of the Labor Code, as amended, which reads:Art. 279. Security of Tenure. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to hisother benefits or their monetary equivalentcomputed from the time his compensation is withheld from him up to the time of his actual reinstatement. (emphasis supplied).However, the Implementing Rules clearly state that entitlement to "benefit provided under this Rule shall start December 16, 1975, the date the amendatory provision of the [Labor] Code took effect."43Hence, petitioners, except Lim and Canonigo, should be entitled to service incentive leave pay from December 16, 1975 up to their actual reinstatement.Petitioners, citingRoche Philippines et al.vs.NLRC et al.,44further contend that the award of damages in the case at bar should be increased, for "there are eleven (11) complainants/petitioners whose long years of employment was illegally, oppressively and wantonly terminated by the privaterespondent."45We disagree. Determination of the amount of moral damages and attorney's fees is best left to the discretion of the labor arbiter.46Moral damages are recoverable where the dismissal of the employee was attended by bad faith or fraud, or it constituted an act oppressive to labor, or it was done in a manner contrary to morals, good customs or public policy.47In the case before us, records show that petitioners' dismissals were done oppressively and in bad faith, for they were just summarily dismissed without even the benefit of notice and hearing. The well-settled rule is that the employer shall be sanctioned for noncompliance with the requirements of, or for failure to observe, due process in dismissing its employees.48Petitioners were likewise subjected to unnecessary embarrassment or humiliation because of the filing of the criminal charge of qualified theft, which was later dismissed49by the investigating prosecutor.50It follows then that the award of attorney's fees is likewise proper, for the "defendant's act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest."51Full Backwages for DismissalsEffected After March 21, 1989Having determined that petitioners, except Lim and Canonigo, were illegally dismissed, we next resolve the question of whether Respondent NLRC gravely abused its discretion in ordering the reinstatement of dismissed employees and the payment to them of full backwages; or, if reinstatement was no longer feasible, whether the grant to them of separation pay plus backwages was correct. In several cases,52this Court has held that illegally dismissed employees are entitled to reinstatement and full backwages. If reinstatement is not possible, the employees are entitled to separation pay and full backwages. Accordingly, the award to petitioners of backwages for three years should be modified in accordance with Article 27953Of the Labor Code, as amended by R.A. 6715, by giving them full backwages without conditions and limitations, the dismissals having occurred after the effectivity of the amendatory law on March 21, 1989.54Thus, the Court held inBustamante.55The clear legislative intent of the amendment in Rep. Act No. 6715 is to give more benefits to workers than was previously given them under the Mercury Drug rule or the "deduction of earnings elsewhere" rule. Thus, a closer adherence to the legislative policy behind Rep. Act No. 6715 points to "full backwages" as meaning exactly that,i.e., without deducting from backwages the earnings derived elsewhere by the concerned employee during the period of his illegal dismissal.WHEREFORE, t

76-80

Documents

holiday pay

paid holiday

regular employees

holding of election

special day

covered employees

paid regular holidays

sangguniang kabataan