G.R. No. 64948 September 27, 1994MANILA GOLF & COUNTRY CLUB,
INC.,petitioner,vs.INTERMEDIATE APPELLATE COURT and FERMIN
LLAMAR,respondents.NARVASA,C.J.:The question before the Court here
is whether or not persons rendering caddying services for members
of golf clubs and their guests in said clubs' courses or premises
are the employees of such clubs and therefore within the compulsory
coverage of the Social Security System (SSS).That question appears
to have been involved, either directly or peripherally, in three
separate proceedings, all initiated by or on behalf of herein
private respondent and his fellow caddies. That which gave rise to
the present petition for review was originally filed with the
Social Security Commission (SSC)viapetition of seventeen (17)
persons who styled themselves "Caddies of Manila Golf and Country
Club-PTCCEA" for coverage and availment of benefits under the
Social Security Act as amended, "PTCCEA" beingthe acronym of a
labor organization, the "Philippine Technical, Clerical, Commercial
Employees Association," with which the petitioners claimed to be
affiliated. The petition, docketed as SSC Case No. 5443, alleged in
essence that although the petitioners were employees of the Manila
Golf and Country Club, a domestic corporation, the latter had not
registered them as such with the SSS.At about the same time, two
other proceedings bearing on the same question were filed or were
pending; these were:(1) a certification election case filed with
the Labor Relations Division of the Ministry of Labor by the PTCCEA
on behalf of the same caddies of the Manila Golf and Country Club,
the case being titled "Philippine Technical, Clerical, Commercial
Association vs. Manila Golf and Country Club" and docketed as Case
No. R4-LRDX-M-10-504-78; it appears to have been resolved in favor
of the petitioners therein by Med-Arbiter Orlando S. Rojo who was
thereafter upheld by Director Carmelo S. Noriel, denying the Club's
motion for reconsideration;1(2) a compulsory arbitration case
initiated before the Arbitration Branch of the Ministry of Labor by
the same labor organization, titled "Philippine Technical,
Clerical, Commercial Employees Association (PTCCEA), Fermin Lamar
and Raymundo Jomok vs. Manila Golf and Country Club, Inc., Miguel
Celdran, Henry Lim and Geronimo Alejo;" it was dismissed for lack
of merit by Labor Arbiter Cornelio T. Linsangan, a decision later
affirmed on appeal by the National Labor Relations Commission on
the ground that there was no employer-employee relationship between
the petitioning caddies and the respondent Club.2In the case before
the SSC, the respondent Club filed answer praying for the dismissal
of the petition, alleging in substance that the petitioners,
caddies by occupation, were allowed into the Club premises to
render services as such to the individual members and guests
playing the Club's golf course and who themselves paid for such
services; that as such caddies, the petitioners were not subject to
the direction and control of the Club as regards the manner in
which they performed their work; and hence, they were not the
Club's employees.Subsequently, all but two of the seventeen
petitioners of their own accord withdrew their claim for social
security coverage, avowedly coming to realize that indeed there was
no employment relationship between them and the Club. The case
continued, and was eventually adjudicated by the SSC after
protracted proceedings only as regards the two holdouts, Fermin
Llamar and Raymundo Jomok. The Commission dismissed the petition
for lack of merit,3ruling:. . . that the caddy's fees were paid by
the golf players themselves and not by respondent club. For
instance, petitioner Raymundo Jomok averred that for their services
as caddies a caddy's Claim Stub (Exh. "1-A") is issued by a player
who will in turn hand over to management the other portion of the
stub known as Caddy Ticket (Exh. "1") so that by this arrangement
management will know how much a caddy will be paid (TSN, p. 80,
July 23, 1980). Likewise, petitioner Fermin Llamar admitted that
caddy works on his own in accordance with the rules and regulations
(TSN, p. 24, February 26, 1980) but petitioner Jomok could not
state any policy of respondent that directs the manner of caddying
(TSN, pp. 76-77, July 23, 1980). While respondent club promulgates
rules and regulations on the assignment, deportment and conduct of
caddies (Exh. "C") the same are designed to impose personal
discipline among the caddies but not to direct or conduct their
actual work. In fact, a golf player is at liberty to choose a caddy
of his preference regardless of the respondent club's group
rotation system and has the discretion on whether or not to pay a
caddy. As testified to by petitioner Llamar that their income
depends on the number of players engaging their services and
liberality of the latter (TSN, pp. 10-11, Feb. 26, 1980). This
lends credence to respondent's assertion that the caddies are never
their employees in the absence of two elements, namely, (1) payment
of wages and (2) control or supervision over them. In this
connection, our Supreme Court ruled that in the determination of
the existence of an employer-employee relationship, the "control
test" shall be considered decisive (Philippine Manufacturing Co.
vs. Geronimo and Garcia, 96 Phil. 276; Mansal vs. P.P. Coheco
Lumber Co., 96 Phil. 941; Viana vs.Al-lagadan, et al., 99 Phil.
408; Vda, de Ang, et al. vs. The Manila Hotel Co., 101 Phil. 358,
LVN Pictures Inc. vs. Phil. Musicians Guild, et al.,L-12582,
January 28, 1961, 1 SCRA 132. . . . (reference being made also to
Investment Planning Corporation Phil. vs. SSS 21 SCRA 925).Records
show the respondent club had reported for SS coverage Graciano Awit
and Daniel Quijano, as bat unloader and helper, respectively,
including their ground men, house and administrative personnel, a
situation indicative of the latter's concern with the rights and
welfare of its employees under the SS law, as amended. The
unrebutted testimony of Col. Generoso A. Alejo (Ret.) that the ID
cards issued to the caddies merely intended to identify the holders
as accredited caddies of the club and privilege(d) to ply their
trade or occupation within its premises which could be withdrawn
anytime for loss of confidence. This gives us a reasonable ground
to state that the defense posture of respondent that petitioners
were never its employees is well taken.4From this Resolution appeal
was taken to the Intermediate appellate Court by the union
representing Llamar and Jomok. After the appeal was docketed5and
some months before decision thereon was reached and promulgated,
Raymundo Jomok's appeal was dismissed at his instance, leaving
Fermin Llamar the lone appellant.6The appeal ascribed two errors to
the SSC:(1) refusing to suspend the proceedings to await judgment
by the Labor Relations Division of National Capital Regional Office
in the certification election case (R-4-LRD-M-10-504-78)supra, on
the precise issue of the existence of employer-employee
relationship between the respondent club and the appellants, it
being contended that said issue was "a function of the proper labor
office"; and(2) adjudicating that self same issue a manner contrary
to the ruling of the Director of the Bureau of Labor Relations,
which "has not only become final but (has been) executed or
(become)res adjudicata."7The Intermediate Appellate Court gave
short shirt to the first assigned error, dismissing it as of the
least importance. Nor, it would appear, did it find any greater
merit in the second alleged error. Although said Court reserved the
appealed SSC decision and declared Fermin Llamar an employee of the
Manila Gold and Country Club, ordering that he be reported as such
for social security coverage and paid any corresponding
benefits,8it conspicuously ignored the issue ofres adjudicataraised
in said second assignment. Instead, it drew basis for the reversal
from this Court's ruling inInvestment Planning Corporation of the
Philippines vs.Social Security System,supra9and declared that upon
the evidence, the questioned employer-employee relationship between
the Club and Fermin Llamar passed the so-called "control test,"
establishment in the case i.e., "whether the employer controls or
has reserved the right to control the employee not only as to the
result of the work to be done but also as to the means and methods
by which the same is to be accomplished," the Club's control over
the caddies encompassing:(a) the promulgation of no less than
twenty-four (24) rules and regulations just about every aspect of
the conduct that the caddy must observe, or avoid, when serving as
such, any violation of any which could subject him to disciplinary
action, which may include suspending or cutting off his access to
the club premises;(b) the devising and enforcement of a group
rotation system whereby a caddy is assigned a number which
designates his turn to serve a player;(c) the club's "suggesting"
the rate of fees payable to the caddies.Deemed of title or no
moment by the Appellate Court was the fact that the caddies were
paid by the players, not by the Club, that they observed no
definite working hours and earned no fixed income. It quoted with
approval from an American decision10to the effect that: "whether
the club paid the caddies and afterward collected in the first
instance, the caddies were still employees of the club." This, no
matter that the case which produced this ruling had a slightly
different factual cast, apparently having involved a claim for
workmen's compensation made by a caddy who, about to leave the
premises of the club where he worked, was hit and injured by an
automobile then negotiating the club's private driveway.That same
issue ofres adjudicata, ignored by the IAC beyond bare mention
thereof, as already pointed out, is now among the mainways of the
private respondent's defenses to the petition for review.
Considered in the perspective of the incidents just recounted, it
illustrates as well as anything can, why the practice of
forum-shopping justly merits censure and punitive sanction. Because
the same question of employer-employee relationship has been
dragged into three different fora, willy-nilly and in quick
succession, it has birthed controversy as to which of the resulting
adjudications must now be recognized as decisive. On the one hand,
there is the certification case [R4-LRDX-M-10-504-78), where the
decision of the Med-Arbiter found for the existence of
employer-employee relationship between the parties, was affirmed by
Director Carmelo S. Noriel, who ordered a certification election
held, a disposition never thereafter appealed according to the
private respondent; on the other, the compulsory arbitration case
(NCR Case No. AB-4-1771-79), instituted by or for the same
respondent at about the same time, which was dismissed for lack of
merit by the Labor Arbiter, which was afterwards affirmed by the
NLRC itself on the ground that there existed no such relationship
between the Club and the private respondent. And, as if matters
were not already complicated enough, the same respondent, with the
support and assistance of the PTCCEA, saw fit, also
contemporaneously, to initiate still a third proceeding for
compulsory social security coverage with the Social Security
Commission (SSC Case No. 5443), with the result already
mentioned.Before this Court, the petitioner Club now contends that
the decision of the Med-Arbiter in the certification case had never
become final, being in fact the subject of three pending and
unresolved motions for reconsideration, as well as of a later
motion for early resolution.11Unfortunately, none of these motions
is incorporated or reproduced in the record before the Court. And,
for his part, the private respondent contends, not only that said
decision had been appealed to and been affirmed by the Director of
the BLR, but that a certification election had in fact been held,
which resulted in the PTCCEA being recognized as the sole
bargaining agent of the caddies of the Manila Golf and Country Club
with respect to wages, hours of work, terms of employment,
etc.12Whatever the truth about these opposing contentions, which
the record before the Court does not adequately disclose, the more
controlling consideration would seem to be that, however, final it
may become, the decision in a certification case, by thevery nature
of that proceedings, is not such as to foreclose all further
dispute between the parties as to the existence, or non-existence,
of employer-employee relationship between them.It is well settled
that forres adjudicata, or the principle of bar by prior judgment,
to apply, the following essential requisites must concur: (1) there
must be a final judgment or order; (2) said judgment or order must
be on the merits; (3) the court rendering the same must have
jurisdiction over the subject matter and the parties; and (4) there
must be between the two cases identity of parties, identity of
subject matter and identity of cause of action.13Clearly implicit
in these requisites is that the action or proceedings in which is
issued the "prior Judgment" that would operate in bar of a
subsequent action between the same parties for the same cause,
beadversarial, or contentious, "one having opposing parties; (is)
contested, as distinguished from anex partehearing or proceeding. .
. . of which the party seeking relief has given legal notice to the
other party and afforded the latter an opportunity to contest
it"14and a certification case is not such a proceeding, as this
Court already ruled:A certification proceedings is not a
"litigation" in the sense in which the term is commonly understood,
but mere investigation of a non-adversary, fact-finding character,
in which the investigating agency plays the part of a disinterested
investigator seeking merely to ascertain the desires of the
employees as to the matter of their representation. The court
enjoys a wide discretion in determining the procedure necessary to
insure the fair and free choice of bargaining representatives by
the employees.15Indeed, if any ruling or judgment can be said to
operate asres adjudicataon the contested issue of employer-employee
relationship between present petitioner and the private respondent,
it would logically be that rendered in the compulsory arbitration
case (NCR Case No. AB-4-771-79,supra), petitioner having asserted,
without dispute from the private respondent, that said issue was
there squarely raised and litigated, resulting in a ruling of the
Arbitration Branch (of the same Ministry of Labor) that such
relationship did not exist, and which ruling was thereafter
affirmed by the National Labor Relations Commission in an appeal
taken by said respondent.16In any case, this Court is not inclined
to allow private respondent the benefit of any doubt as to which of
the conflicting ruling just adverted to should be accorded primacy,
given the fact that it was he who actively sought them
simultaneously, as it were, from separate fora, and even if the
graver sanctions more lately imposed by the Court for
forum-shopping may not be applied to him retroactively.Accordingly,
the IAC is not to be faulted for ignoring private respondent's
invocation ofres adjudicata; on contrary, it acted correctly in
doing so.Said Courts holding that upon the facts, there exists (or
existed) a relationship of employer and employee between petitioner
and private respondent is, however, another matter. The Court does
not agree that said facts necessarily or logically point to such a
relationship, and to the exclusion of any form of arrangements,
other than of employment, that would make the respondent's services
available to the members and guest of the petitioner.As long as it
is, the list made in the appealed decision detailing the various
matters of conduct, dress, language, etc. covered by the
petitioner's regulations, does not, in the mind of the Court, so
circumscribe the actions or judgment of the caddies concerned as to
leave them little or no freedom of choice whatsoever in the manner
of carrying out their services. In the very nature of things,
caddies must submit to some supervision of their conduct while
enjoying the privilege of pursuing their occupation within the
premises and grounds of whatever club they do their work in. For
all that is made to appear, they work for the club to which they
attach themselves on sufference but, on the other hand, also
without having to observe any working hours, free to leave anytime
they please, to stay away for as long they like. It is not
pretended that if found remiss in the observance of said rules, any
discipline may be meted them beyond barring them from the premises
which, it may be supposed, the Club may do in any case even absent
any breach of the rules, and without violating any right to work on
their part. All these considerations clash frontally with the
concept of employment.The IAC would point to the fact that the Club
suggests the rate of fees payable by the players to the caddies as
still another indication of the latter's status as employees. It
seems to the Court, however, that the intendment of such fact is to
the contrary, showing that the Club has not the measure of control
over the incidents of the caddies' work and compensation that an
employer would possess.The Court agrees with petitioner that the
group rotation system so-called, is less a measure of employer
control than an assurance that the work is fairly distributed, a
caddy who is absent when his turn number is called simply losing
his turn to serve and being assigned instead the last number for
the day.17By and large, there appears nothing in the record to
refute the petitioner's claim that:(Petitioner) has no means of
compelling the presence of a caddy. A caddy is not required to
exercise his occupation in the premises of petitioner. He may work
with any other golf club or he may seek employment a caddy or
otherwise with any entity or individual without restriction by
petitioner. . . .. . . In the final analysis, petitioner has no was
of compelling the presence of the caddies as they are not required
to render a definite number of hours of work on a single day. Even
the group rotation of caddies is not absolute because a player is
at liberty to choose a caddy of his preference regardless of the
caddy's order in the rotation.It can happen that a caddy who has
rendered services to a player on one day may still find sufficient
time to work elsewhere. Under such circumstances, he may then leave
the premises of petitioner and go to such other place of work that
he wishes (sic). Or a caddy who is on call for a particular day may
deliberately absent himself if he has more profitable caddying, or
another, engagement in some other place. These are things beyond
petitioner's control and for which it imposes no direct sanctions
on the caddies. . . .18WHEREFORE, the Decision of the Intermediate
Appellant Court, review of which is sought, is reversed and set
aside, it being hereby declared that the private respondent, Fermin
Llamar, is not an employee of petitioner Manila Golf and Country
Club and that petitioner is under no obligation to report him for
compulsory coverage to the Social Security System. No pronouncement
as to costs.SO ORDERED.THIRD DIVISION[G.R. No. 157214. June 7,
2005]PHILIPPINE GLOBAL COMMUNICATIONS, INC.,petitioner, vs.RICARDO
DE VERA,respondent.D E C I S I O NGARCIA,J.:Before us is this
appeal by way of a petition for review oncertiorarifrom the 12
September 2002 Decision[1]and the 13 February 2003 Resolution[2]of
the Court of Appeals in CA-G.R. SP No. 65178, upholding the finding
of illegal dismissal by the National Labor Relations Commission
against petitioner.As culled from the records, the pertinent facts
are:Petitioner Philippine Global Communications, Inc. (PhilCom), is
a corporation engaged in the business of communication services and
allied activities, while respondent Ricardo De Vera is a physician
by profession whom petitioner enlisted to attend to the medical
needs of its employees. At the crux of the controversy is Dr. De
Veras statusvis a vispetitioner when the latter terminated his
engagement.It appears that on 15 May 1981, De Vera,viaa letter
dated 15 May 1981,[3]offered his services to the petitioner,
therein proposing his plan of works required of a practitioner in
industrial medicine, to include the following:1. Application of
preventive medicine including periodic check-up of employees;2.
Holding of clinic hours in the morning and afternoon for a total of
five (5) hours daily for consultation services to employees;3.
Management and treatment of employees that may necessitate
hospitalization including emergency cases and accidents;4. Conduct
pre-employment physical check-up of prospective employees with no
additional medical fee;5. Conduct home visits whenever necessary;6.
Attend to certain medical administrative function such as
accomplishing medical forms, evaluating conditions of employees
applying for sick leave of absence and subsequently issuing proper
certification, and all matters referred which are medical in
nature.The parties agreed and formalized respondents proposal in a
document denominated asRETAINERSHIP CONTRACT[4]which will be for a
period of one year subject to renewal, it being made clear therein
that respondent will cover the retainership the Company previously
had with Dr. K. Eulau and that respondents retainer fee will be at
P4,000.00 a month. Said contract was renewed yearly.[5]The
retainership arrangement went on from 1981 to 1994 with changes in
the retainers fee. However, for the years 1995 and 1996, renewal of
the contract was only made verbally.The turning point in the
parties relationship surfaced in December 1996 when Philcom, thru a
letter[6]bearing on the subject boldly written as TERMINATION
RETAINERSHIP CONTRACT, informed De Vera of its decision to
discontinue the latters retainers contract with the Company
effective at the close of business hours of December 31, 1996
because management has decided that it would be more practical to
provide medical services to its employees through accredited
hospitals near the company premises.On 22 January 1997, De Vera
filed a complaint for illegal dismissal before the National Labor
Relations Commission (NLRC), alleging that that he had been
actually employed by Philcom as its company physician since 1981
and was dismissed without due process. He averred that he was
designated as a company physician on retainer basis for reasons
allegedly known only to Philcom. He likewise professed that since
he was not conversant with labor laws, he did not give much
attention to the designation as anyway he worked on a full-time
basis and was paid a basic monthly salary plus fringe benefits,
like any other regular employees of Philcom.On 21 December 1998,
Labor Arbiter Ramon Valentin C. Reyes came out with a
decision[7]dismissing De Veras complaint for lack of merit, on the
rationale that as a retained physician under a valid contract
mutually agreed upon by the parties, De Vera was an independent
contractor and that he was not dismissed but rather his contract
with [PHILCOM] ended when said contract was not renewed after
December 31, 1996.On De Veras appeal to the NLRC, the latter, in a
decision[8]dated 23 October 2000, reversed (the word used is
modified) that of the Labor Arbiter, on a finding that De Vera is
Philcoms regular employee and accordingly directed the company to
reinstate him to his former position without loss of seniority
rights and privileges and with full backwages from the date of his
dismissal until actual reinstatement. We quote the dispositive
portion of the decision:WHEREFORE, the assailed decision is
modified in that respondent is ordered to reinstate complainant to
his former position without loss of seniority rights and privileges
with full backwages from the date of his dismissal until his actual
reinstatement computed as follows:Backwages:a) Basic SalaryFrom
Dec. 31, 1996 to Apr. 10, 2000 = 39.33 mos.P44,400.00 x 39.33 mos.
P1,750,185.00b) 13thMonth Pay:1/12 of P1,750,185.00 145,848.75c)
Travelling allowance:P1,000.00 x 39.33 mos. 39,330.00GRAND
TOTALP1,935,363.75The decision stands in other aspects.SO
ORDERED.With its motion for reconsideration having been denied by
the NLRC in its order of 27 February 2001,[9]Philcom then went to
the Court of Appeals on a petition forcertiorari, thereat docketed
asCA-G.R. SP No. 65178, imputing grave abuse of discretion
amounting to lack or excess of jurisdiction on the part of the NLRC
when it reversed the findings of the labor arbiter and awarded
thirteenth month pay and traveling allowance to De Vera even as
such award had no basis in fact and in law.On 12 September 2002,
the Court of Appeals rendered a decision,[10]modifying that of the
NLRC by deleting the award of traveling allowance, and ordering
payment of separation pay to De Vera in lieu of reinstatement,
thus:WHEREFORE, premises considered, the assailed judgment of
public respondent, dated 23 October 2000, isMODIFIED. The award of
traveling allowance is deleted as the same is hereby DELETED.
Instead of reinstatement, private respondent shall be paid
separation pay computed at one (1) month salary for every year of
service computed from the time private respondent commenced his
employment in 1981 up to the actual payment of the backwages and
separation pay. The awards of backwages and 13thmonth pay STAND.SO
ORDERED.In time, Philcom filed a motion for reconsideration but was
denied by the appellate court in its resolution of 13 February
2003.[11]Hence, Philcoms present recourse on its main submission
that -THE COURT OF APPEALS ERRED IN SUSTAINING THE DECISION OF THE
NATIONAL LABOR RELATIONS COMMISSION AND RENDERING THE QUESTIONED
DECISION AND RESOLUTION IN A WAY THAT IS NOT IN ACCORD WITH THE
FACTS AND APPLICABLE LAWS AND JURISPRUDENCE WHICH DISTINGUISH
LEGITIMATE JOB CONTRACTING AGREEMENTS FROM THE EMPLOYER-EMPLOYEE
RELATIONSHIP.WeGRANT.Under Rule 45 of the Rules of Court, only
questions of law may be reviewed by this Court in decisions
rendered by the Court of Appeals. There are instances, however,
where the Court departs from this rule and reviews findings of fact
so that substantial justice may be served. The exceptional
instances are where:xxx xxx xxx (1) the conclusion is a finding
grounded entirely on speculation, surmise and conjecture; (2) the
inference made is manifestly mistaken; (3) there is grave abuse of
discretion; (4) the judgment is based on a misapprehension of
facts; (5) the findings of fact are conflicting; (6) the Court of
Appeals went beyond the issues of the case and its findings are
contrary to the admissions of both appellant and appellees; (7) the
findings of fact of the Court of Appeals are contrary to those of
the trial court; (8) said findings of facts are conclusions without
citation of specific evidence on which they are based; (9) the
facts set forth in the petition as well as in the petitioners main
and reply briefs are not disputed by the respondents; and (10) the
findings of fact of the Court of Appeals are premised on the
supposed absence of evidence and contradicted by the evidence on
record.[12]As we see it, the parties respective submissions revolve
on the primordial issue of whether an employer-employee
relationship exists between petitioner and respondent, the
existence of which is, in itself, a question of fact[13]well within
the province of the NLRC. Nonetheless, given the reality that the
NLRCs findings are at odds with those of the labor arbiter, the
Court, consistent with its ruling inJimenez vs. National Labor
Relations Commission,[14]is constrained to look deeper into the
attendant circumstances obtaining in this case, as appearing on
record.In a long line of decisions,[15]the Court, in determining
the existence of an employer-employee relationship, has invariably
adhered to the four-fold test, to wit: [1] the selection and
engagement of the employee; [2] the payment of wages; [3] the power
of dismissal; and [4] the power to control the employees conduct,
or the so-called control test, considered to be the most important
element.Applying the four-fold test to this case, we initially find
that it was respondent himself who sets the parameters of what his
duties would be in offering his services to petitioner. This is
borne by no less than his 15 May 1981 letter[16] which, in full,
reads:May 15, 1981Mrs. Adela L. VicenteVice President, Industrial
RelationsPhilCom, Paseo de RoxasMakati, Metro ManilaM a d a m :I
shall have the time and effort for the position of Company
physician with your corporation if you deemed it necessary. I have
the necessary qualifications, training and experience required by
such position and I am confident that I can serve the best
interests of your employees, medically.My plan of works and targets
shall cover the duties and responsibilities required of a
practitioner in industrial medicine which includes the following:1.
Application of preventive medicine including periodic check-up of
employees;2. Holding of clinic hours in the morning and afternoon
for a total of five (5) hours daily for consultation services to
employees;3. Management and treatment of employees that may
necessitate hospitalization including emergency cases and
accidents;4. Conduct pre-employment physical check-up of
prospective employees with no additional medical fee;5. Conduct
home visits whenever necessary;6. Attend to certain medical
administrative functions such as accomplishing medical forms,
evaluating conditions of employees applying for sick leave of
absence and subsequently issuing proper certification, and all
matters referred which are medical in nature.On the subject of
compensation for the services that I propose to render to the
corporation, you may state an offer based on your belief that I can
very well qualify for the job having worked with your organization
for sometime now.I shall be very grateful for whatever kind
attention you may extend on this matter and hoping that it will
merit acceptance, I remainVery truly yours,(signed)RICARDO V. DE
VERA, M.D.Significantly, the foregoing letter was substantially the
basis of the labor arbiters finding that there existed no
employer-employee relationship between petitioner and respondent,
in addition to the following factual settings:The fact that the
complainant was not considered an employee was recognized by the
complainant himself in a signed letter to the respondent dated
April 21, 1982 attached as Annex G to the respondents Reply and
Rejoinder. Quoting the pertinent portion of said letter:To carry
out your memo effectively and to provide a systematic and workable
time schedule which will serve the best interests of both the
present and absent employee, may I propose an extended two-hour
service (1:00-3:00 P.M.) during which period I can devote ample
time to both groups depending upon the urgency of the situation. I
shall readjust my private schedule to be available for the herein
proposed extended hours, should you consider this proposal.As
regards compensation for the additional time and services that I
shall render to the employees, it is dependent on your evaluation
of the merit of my proposal and your confidence on my ability to
carry out efficiently said proposal.The tenor of this letter
indicates that the complainant was proposing to extend his time
with the respondent and seeking additional compensation for said
extension. This shows that the respondent PHILCOM did not have
control over the schedule of the complainant as it [is] the
complainant who is proposing his own schedule and asking to be paid
for the same. This is proof that the complainant understood that
his relationship with the respondent PHILCOM was a retained
physician and not as an employee. If he were an employee he could
not negotiate as to his hours of work.The complainant is a Doctor
of Medicine, and presumably, a well-educated person. Yet, the
complainant, in his position paper, is claiming that he is not
conversant with the law and did not give much attention to his job
title- on a retainer basis. But the same complainant admits in his
affidavit that his service for the respondent was covered by a
retainership contract [which] was renewed every year from 1982 to
1994. Upon reading the contract dated September 6, 1982, signed by
the complainant himself (Annex C of Respondents Position Paper), it
clearly states that is a retainership contract. The retainer fee is
indicated thereon and the duration of the contract for one year is
also clearly indicated in paragraph 5 of the Retainership Contract.
The complainant cannot claim that he was unaware that the contract
was good only for one year, as he signed the same without any
objections. The complainant also accepted its renewal every year
thereafter until 1994. As a literate person and educated person,
the complainant cannot claim that he does not know what contract he
signed and that it was renewed on a year to year basis.[17]The
labor arbiter added theindicia,not disputed by respondent, that
from the time he started to work with petitioner, he never was
included in its payroll; was never deducted any contribution for
remittance to the Social Security System (SSS); and was in fact
subjected by petitioner to the ten (10%) percent withholding tax
for his professional fee, in accordance with the National Internal
Revenue Code, matters which are simply inconsistent with an
employer-employee relationship. In the precise words of the labor
arbiter:xxx xxx xxx After more than ten years of services to
PHILCOM, the complainant would have noticed that no SSS deductions
were made on his remuneration or that the respondent was deducting
the 10% tax for his fees and he surely would have complained about
them if he had considered himself an employee of PHILCOM. But he
never raised those issues. An ordinary employee would consider the
SSS payments important and thus make sure they would be paid. The
complainant never bothered to ask the respondent to remit his SSS
contributions. This clearly shows that the complainant never
considered himself an employee of PHILCOM and thus, respondent need
not remit anything to the SSS in favor of the
complainant.[18]Clearly, the elements of an employer-employee
relationship are wanting in this case. We may add that the records
are replete with evidence showing that respondent had to bill
petitioner for his monthly professional fees.[19]It simply runs
against the grain of common experience to imagine that an ordinary
employee has yet to bill his employer to receive his salary.We
note, too, that the power to terminate the parties relationship was
mutually vested on both. Either may terminate the arrangement at
will, with or without cause.[20]Finally, remarkably absent from the
parties arrangement is the element of control, whereby the employer
has reserved the right to control the employee not only as to the
result of the work done but also as to the means and methods by
which the same is to be accomplished.[21]Here, petitioner had no
control over the means and methods by which respondent went about
performing his work at the company premises. He could even embark
in the private practice of his profession, not to mention the fact
that respondents work hours and the additional compensation
therefor were negotiated upon by the parties.[22]In fine, the
parties themselves practically agreed on every terms and conditions
of respondents engagement, which thereby negates the element of
control in their relationship. For sure, respondent has never cited
even a single instance when petitioner interfered with his
work.Yet, despite the foregoing, all of which are extant on record,
both the NLRC and the Court of Appeals ruled that respondent is
petitioners regular employee at the time of his separation.Partly
says the appellate court in its assailed decision:Be that as it
may, it is admitted that private respondents written retainer
contract was renewed annually from 1981 to 1994 and the alleged
renewal for 1995 and 1996, when it was allegedly terminated, was
verbal.Article 280 of the Labor code (sic) provides:The provisions
of written agreement to the contrarynotwithstanding and regardless
of the oral agreements of the parties, an employment shall be
deemed to be regular where the employee has been engaged to perform
in the usual business or trade of the employer, except where the
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 services to
be performed is seasonal in nature and the employment is for the
duration of the season.An employment shall be deemed to be casual
if it is not covered by the preceding paragraph: Provided, That,
any employee who has rendered at least one (1) year of service,
whether such is continuous or broken,shall be considered a regular
with respect to the activity in which he is employedand his
employment shall continue while such activity
exists.Parenthetically, the position of company physician, in the
case of petitioner, is usually necessary and desirable because the
need for medical attention of employees cannot be foreseen, hence,
it is necessary to have a physician at hand. In fact, the
importance and desirability of a physician in a company premises is
recognized by Art. 157 of the Labor Code, which requires the
presence of a physician depending on the number of employees and in
the case at bench, in petitioners case, as found by public
respondent, petitioner employs more than 500 employees.Going back
to Art. 280 of the Labor Code, it was made therein clear that the
provisions of a written agreement to the contrary notwithstanding
or the existence of a mere oral agreement, if the employee is
engaged in the usual business or trade of the employer, more so,
that he rendered service for at least one year, such employee shall
be considered as aregularemployee. Private respondent herein has
been with petitioner since 1981 and his employment was not for a
specific project or undertaking, the period of which was
pre-determined and neither the work or service of private
respondent seasonal. (Emphasis by the CA itself).We disagree to the
foregoing ratiocination.The appellate courts premise that regular
employees are those who perform activities which are desirable and
necessary for the business of the employer is not determinative in
this case. For, we take it that any agreement may provide that one
party shall render services for and in behalf of another, no matter
how necessary for the latters business,even without being hired as
an employee. This set-up is precisely true in the case of an
independent contractorship as well as in an agency agreement.
Indeed, Article 280 of the Labor Code, quoted by the appellate
court, is not the yardstick for determining the existence of an
employment relationship. As it is, the provision merely
distinguishes between two (2) kinds of employees,i.e., regular and
casual. It does not apply where, as here, the very existence of an
employment relationship is in dispute.[23]Buttressing his
contention that he is a regular employee of petitioner, respondent
invokes Article 157 of the Labor Code, and argues that he satisfies
all the requirements thereunder. The provision relied upon
reads:ART. 157.Emergency medical and dental services. It shall be
the duty of every employer to furnish his employees in any locality
with free medical and dental attendance and facilities consisting
of:(a) The services of a full-time registered nurse when the number
of employees exceeds fifty (50) but not more than two hundred (200)
except when the employer does not maintain hazardous workplaces, in
which case the services of a graduate first-aider shall be provided
for the protection of the workers, where no registered nurse is
available. The Secretary of Labor shall provide by appropriate
regulations the services that shall be required where the number of
employees does not exceed fifty (50) and shall determine by
appropriate order hazardous workplaces for purposes of this
Article;(b) The services of a full-time registered nurse, a
part-time physician and dentist, and an emergency clinic, when the
number of employees exceeds two hundred (200) but not more than
three hundred (300); and(c) The services of a full-time physician,
dentist and full-time registered nurse as well as a dental clinic,
and an infirmary or emergency hospital with one bed capacity for
every one hundred (100) employees when the number of employees
exceeds three hundred (300).In cases of hazardous workplaces, no
employer shall engage the services of a physician or dentist who
cannot stay in the premises of the establishment for at least two
(2) hours, in the case of those engaged on part-time basis, and not
less than eight (8) hours in the case of those employed on
full-time basis. Where the undertaking is nonhazardous in nature,
the physician and dentist may be engaged on retained basis, subject
to such regulations as the Secretary of Labor may prescribe to
insure immediate availability of medical and dental treatment and
attendance in case of emergency.Had only respondent read carefully
the very statutory provision invoked by him, he would have noticed
that in non-hazardous workplaces, the employer may engage the
services of a physician on retained basis. As correctly observed by
the petitioner, while it is true that the provision requires
employers to engage the services of medical practitioners in
certain establishments depending on the number of their employees,
nothing is there in the law which says that medical practitioners
so engaged be actually hired as employees,[24]adding that the law,
as written, only requires the employer to retain, not employ, a
part-time physician who needed to stay in the premises of the
non-hazardous workplace for two (2) hours.[25]Respondent takes no
issue on the fact that petitioners business of telecommunications
is not hazardous in nature. As such, what applies here is the last
paragraph of Article 157 which, to stress, provides that the
employer may engage the services of a physician and dentist on
retained basis, subject to such regulations as the Secretary of
Labor may prescribe. The successive retainership agreements of the
parties definitely hue to the very statutory provision relied upon
by respondent.Deeply embedded in our jurisprudence is the rule that
courts may not construe a statute that is free from doubt. Where
the law is clear and unambiguous, it must be taken to mean exactly
what it says, and courts have no choice but to see to it that the
mandate is obeyed.[26]As it is, Article 157 of the Labor Code
clearly and unequivocally allows employers in non-hazardous
establishments to engage on retained basis the service of a dentist
or physician. Nowhere does the law provide that the physician or
dentist so engaged thereby becomes a regular employee. The very
phrase that they may be engaged on retained basis, revolts against
the idea that this engagement gives rise to an employer-employee
relationship.With the recognition of the fact that petitioner
consistently engaged the services of respondent on a retainer
basis, as shown by their various retainership contracts, so can
petitioner put an end, with or without cause, to their retainership
agreement as therein provided.[27]We note, however, that even as
the contracts entered into by the parties invariably provide for a
60-day notice requirement prior to termination, the same was not
complied with by petitioner when it terminated on 17 December 1996
the verbally-renewed retainership agreement, effective at the close
of business hours of 31 December 1996.Be that as it may, the record
shows, and this is admitted by both parties,[28]that execution of
the NLRC decision had already been made at the NLRC despite the
pendency of the present recourse. For sure, accounts of petitioner
had already been garnished and released to respondent despite the
previous Status Quo Order[29]issued by this Court. To all intents
and purposes, therefore, the 60-day notice requirement has become
moot and academic if not waived by the respondent
himself.WHEREFORE, the petition is GRANTED and the challenged
decision of the Court of Appeals REVERSED and SET ASIDE. The 21
December 1998 decision of the labor arbiter is REINSTATED.No
pronouncement as to costs.SO ORDERED.Panganiban, (Chairman),
Corona,andCarpio-Morales, JJ.,concuFIRST DIVISIONABS-CBN
BROADCASTINGG.R. No.
164156CORPORATION,Petitioner,PresentPANGANIBAN,C.J.,
Chairperson,YNARES-SANTIAGO,- versus -AUSTRIA-MARTINEZ,CALLEJO,
SR., andCHICO-NAZARIO,JJ.MARLYN NAZARENO,Promulgated:MERLOU
GERZON,JENNIFER DEIPARINE,and JOSEPHINE
LERASAN,Respondents.September 26, 2006x- - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - xD E C I S I O NCALLEJO, SR.,J.:Before us is a petition for
review oncertiorariof the Decision[1]of the Court of Appeals (CA)
in CA-G.R. SP No. 76582 and the Resolution denying the motion for
reconsideration thereof. The CA affirmed the Decision[2]and
Resolution[3]of the National Labor Relations Commission (NLRC) in
NLRC Case No. V-000762-2001 (RAB Case No. VII-10-1661-2001) which
likewise affirmed, with modification, the decision of the Labor
Arbiter declaring the respondents Marlyn Nazareno, Merlou Gerzon,
Jennifer Deiparine and Josephine Lerasan as regular employees.The
AntecedentsPetitioner ABS-CBN Broadcasting Corporation (ABS-CBN) is
engaged in the broadcasting business and owns a network of
television and radio stations, whose operations revolve around the
broadcast, transmission, and relay of telecommunication signals. It
sells and deals in or otherwise utilizes the airtime it generates
from its radio and television operations. It has a franchise as a
broadcasting company, and was likewise issued a license and
authority to operate by the National Telecommunications
Commission.Petitioner employed respondents Nazareno, Gerzon,
Deiparine, and Lerasan as production assistants (PAs) on different
dates. They were assigned at the news and public affairs, for
various radio programs in the Cebu Broadcasting Station, with a
monthly compensation ofP4,000. They were issued ABS-CBN employees
identification cards and were required to work for a minimum of
eight hours a day, including Sundays and holidays.They were made to
perform the following tasks and duties:a)Prepare, arrange airing of
commercial broadcasting based on the daily operations log and
digicart of respondent ABS-CBN;b)Coordinate, arrange personalities
for air interviews;c)Coordinate, prepare schedule of reporters for
scheduled news reporting and lead-in or incoming
reports;d)Facilitate, prepare and arrange airtime schedule for
public service announcement and complaints;e)Assist, anchor program
interview, etc; andf)Record, log clerical reports, man based
control radio.[4]Their respective working hours were as
follows:NameTimeNo. of Hours1. Marlene Nazareno4:30 A.M.-8:00 A.M.7
8:00 A.M.-12:00noon2. Jennifer Deiparine4:30 A.M.-12:00M.N. (sic)7
3. Joy Sanchez1:00 P.M.-10:00 P.M.(Sunday)9 hrs.9:00 A.M.-6:00
P.M.(WF)9 hrs.4. Merlou Gerzon9:00 A.M.-6:00 P.M.9 hrs.[5]The PAs
were under the control and supervision of Assistant Station Manager
Dante J. Luzon, and News Manager Leo Lastimosa.OnDecember 19, 1996,
petitioner and the ABS-CBN Rank-and-File Employees executed a
Collective Bargaining Agreement (CBA) to be effective during the
period fromDecember 11, 1996toDecember 11, 1999. However, since
petitioner refused to recognize PAs as part of the bargaining unit,
respondents were not included to the CBA.[6]OnJuly 20, 2000,
petitioner, through Dante Luzon, issued a Memorandum informing the
PAs that effectiveAugust 1, 2000, they would be assigned to
non-drama programs, and that the DYAB studio operations would be
handled by the studio technician. Thus, their revised schedule and
other assignments would be as follows:Monday Saturday4:30 A.M. 8:00
A.M. Marlene Nazareno.Miss Nazareno will then be assigned at the
Research Dept.From8:00 A.M.to12:004:30 P.M.12:00MN Jennifer
DeiparineSunday5:00 A.M. 1:00 P.M. Jennifer Deiparine1:00 P.M.
10:00 P.M. Joy SanchezRespondent Gerzon was assigned as the
full-time PA of the TV News Department reporting directly to Leo
Lastimosa.OnOctober 12, 2000, respondents filed a Complaint for
Recognition of Regular Employment Status, Underpayment of Overtime
Pay, Holiday Pay, Premium Pay, Service Incentive Pay, Sick Leave
Pay, and 13thMonth Pay with Damages against the petitioner before
the NLRC. The Labor Arbiter directed the parties to submit their
respective position papers. Upon respondents failure to file their
position papers within the reglementary period, Labor Arbiter Jose
G. Gutierrez issued an Order dated
April 30, 2001, dismissing the complaint without prejudice for
lack of interest to pursue the case.Respondents received a copy of
the Order onMay 16, 2001.[7]Instead of re-filing their complaint
with the NLRC within 10 days fromMay 16, 2001, they filed, onJune
11, 2001, an Earnest Motion to Refile Complaint with Motion to
Admit Position Paper and Motion to Submit Case For
Resolution.[8]The Labor Arbiter granted this motion in an Order
datedJune 18, 2001, and forthwith admitted the position paper of
the complainants. Respondents made the following
allegations:1.Complainants were engaged by respondent ABS-CBN as
regular and full-time employees for a continuous period of more
than five (5) years with a monthly salary rate of Four Thousand
(P4,000.00) pesos beginning 1995 up until the filing of this
complaint on November 20, 2000.Machine copies of complainants
ABS-CBN Employees Identification Card and salary vouchers are
hereto attached as follows, thus:I.Jennifer Deiparine:Exhibit A-
ABS-CBN Employees Identification CardExhibit B,- ABS-CBN Salary
Voucher from Nov.Exhibit B-1 &1999 to July 2000
atP4,000.00Exhibit B-2Date employed:September 15, 1995Length of
service:5 years & nine (9) monthsII.Merlou Gerzon- ABS-CBN
Employees Identification CardExhibit CExhibit DExhibit D-1
&Exhibit D-2- ABS-CBN Salary Voucher from March1999 to January
2001 at P4,000.00Date employed:September 1, 1995Length of service:5
years & 10 monthsIII.Marlene NazarenoExhibit E- ABS-CBN
Employees Identification CardExhibit E- ABS-CBN Salary Voucher from
Nov.Exhibit E-1 &1999 to December 2000Exhibit :E-2Date
employed:April 17, 1996Length of service:5 years and one (1)
monthIV.Joy Sanchez LerasanExhibit F- ABS-CBN Employees
Identification CardExhibit F-1- ABS-CBN Salary Voucher from
Aug.Exhibit F-2 &2000 to Jan. 2001Exhibit F-3Exhibit F-4-
Certification datedJuly 6, 2000Acknowledging regular status
ofComplainant Joy Sanchez LerasanSigned by ABS-CBN
AdministrativeOfficer May Kima HifeDate employed:April 15,
1998Length of service:3 yrs. and one (1) month[9]Respondents
insisted that they belonged to a work pool from which petitioner
chose persons to be given specific assignments at its discretion,
and were thus under its direct supervision and control regardless
of nomenclature.They prayed that judgment be rendered in their
favor, thus:WHEREFORE, premises considered, this Honorable Arbiter
is most respectfully prayed, to issue an order compelling
defendants to pay complainants the following:1. One Hundred
Thousand Pesos (P100,000.00) eachand by way of moral damages;2.
Minimum wage differential;3. Thirteenth month pay differential;4.
Unpaid service incentive leave benefits;5. Sick
leave;6.Holidaypay;7. Premium pay;8. Overtime pay;9. Night shift
differential.Complainants further pray of this Arbiter to declare
them regular and permanent employees of respondent ABS-CBN as a
condition precedent for their admission into the existing union and
collective bargaining unit of respondent company where they may as
such acquire or otherwise perform their obligations thereto or
enjoy the benefits due therefrom.Complainants pray for such other
reliefs as are just and equitable under the premises.[10]For its
part, petitioner alleged in its position paper that the respondents
were PAs who basically assist in the conduct of a particular
program ran by an anchor or talent.Among their duties include
monitoring and receiving incoming calls from listeners and field
reporters and calls of news sources; generally, they perform leg
work for the anchors during a program or a particular production.
They are considered in the industry as program employees in that,
as distinguished from regular or station employees, they are
basically engaged by the station for a particular or specific
program broadcasted by the radio station. Petitioner asserted that
as PAs, the complainants were issued talent information sheets
which are updated from time to time, and are thus made the basis to
determine the programs to which they shall later be called on to
assist. The program assignments of complainants were as
follows:a.Complainant Nazareno assists in the programs:1)Nagbagang
Balita (early morning edition)2)Infor Hayupan3)Arangkada (morning
edition)4)Nagbagang Balita (mid-day edition)b.Complainant Deiparine
assists in the programs:1)Unzanith2)Serbisyo de Arevalo3)Arangkada
(evening edition)4)Balitang K (local version)5)Abante
Subu6)Pangutana Langc.Complainant Gerzon assists in the
program:1)On Mondays and Tuesdays:(a)Unzanith(b)Serbisyo de
Arevalo(c)Arangkada (evening edition)(d)Balitang K (local
version)(e)Abante Sugbu(f)Pangutana Lang2)On ThursdaysNagbagang
Balita3)On Saturdays(a)Nagbagang Balita(b)Info Hayupan(c)Arangkada
(morning edition)(d)Nagbagang Balita (mid-day edition)4)On
Sundays:(a)Siesta Serenata(b)Sunday Chismisan(c)Timbangan sa
Hustisya(d)Sayri ang Lungsod(e)Haranahan[11]Petitioner maintained
that PAs, reporters, anchors and talents occasionally sideline for
other programs they produce, such as drama
talents in other productions.As program employees, a PAs
engagement is coterminous with the completion of the program, and
may be extended/renewed provided that the program is on-going; a PA
may also be assigned to new programs upon the cancellation of one
program and the commencement of another. As such program employees,
their compensation is computed on a program basis, a fixed amount
for performance services irrespective of the time consumed.At any
rate, petitioner claimed, as the payroll will show, respondents
were paid all salaries and benefits due them under the
law.[12]Petitioner also alleged that the Labor Arbiter had no
jurisdiction to involve the CBA and interpret the same, especially
since respondents were not covered by the bargaining unit.OnJuly
30, 2001, the Labor Arbiter rendered judgment in favor of the
respondents, and declared that they were regular employees of
petitioner; as such, they were awarded monetary benefits.
Thefalloof the decision reads:WHEREFORE, the foregoing premises
considered, judgment is hereby rendered declaring the complainants
regular employees of the respondent ABS-CBN Broadcasting
Corporation and directing the same respondent to pay complainants
as follows:I-Merlou A. GerzonP12,025.00II-Marlyn
Nazareno12,025.00III-Jennifer Deiparine12,025.00IV-Josephine
Sanchez Lerazan12,025.00_________P48,100.00plus ten (10%) percent
Attorneys Fees or a TOTAL aggregate amount of PESOS: FIFTY TWO
THOUSAND NINE HUNDRED TEN (P52,910.00).Respondent Veneranda C. Sy
is absolved from any liability.SO ORDERED.[13]However, the Labor
Arbiter did not award money benefits as provided in the CBA on his
belief that he had no jurisdiction to interpret and apply the
agreement, as the same was within the jurisdiction of the Voluntary
Arbitrator as provided in Article 261 of the Labor Code.Respondents
counsel received a copy of the decision onAugust 29,
2001.Respondent Nazareno received her copy onAugust 27, 2001, while
the other respondents received theirs onSeptember 8, 2001.
Respondents signed and filed their Appeal Memorandum onSeptember
18, 2001.For its part, petitioner filed a motion for
reconsideration, which the Labor Arbiter denied and considered as
an appeal, conformably with Section 5, Rule V, of the NLRC Rules of
Procedure.Petitioner forthwith appealed the decision to the NLRC,
while respondents filed a partial appeal.In its appeal, petitioner
alleged the following:1.That the Labor Arbiter erred in reviving or
re-opening this case which had long been dismissed without
prejudice for more than thirty (30) calendar days;2.That the Labor
Arbiter erred in depriving the respondent of its Constitutional
right to due process of law;3.That the Labor Arbiter erred in
denying respondents Motion for Reconsideration on an interlocutory
order on the ground that the same is a prohibited pleading;4.That
the Labor Arbiter erred when he ruled that the complainants are
regular employees of the respondent;5.That the Labor Arbiter erred
when he ruled that the complainants are entitled to 13thmonth pay,
service incentive leave pay and salary differential; and6.That the
Labor Arbiter erred when he ruled that complainants are entitled to
attorneys fees.[14]OnNovember 14, 2002, the NLRC rendered judgment
modifying the decision of the Labor Arbiter.Thefalloof the decision
reads:WHEREFORE, premises considered, the decision of Labor Arbiter
Jose G. Gutierrez dated30 July 2001isSET ASIDE and VACATEDand a new
one is enteredORDERINGrespondent ABS-CBN Broadcasting Corporation,
as follows:1.To pay complainants of their wage differentials and
other benefits arising from the CBA as of 30 September 2002 in the
aggregate amount of Two Million Five Hundred, Sixty-One Thousand
Nine Hundred Forty-Eight Pesos and 22/100 (P2,561,948.22), broken
down as follows:a. Deiparine, Jennifer-P716,113.49b. Gerzon,
Merlou-716,113.49c. Nazareno, Marlyn-716,113.49d. Lerazan,
Josephine Sanchez-413,607.75Total-P2,561,948.222.To deliver to the
complainants Two Hundred Thirty-Three (233) sacks of rice as of30
September 2002representing their rice subsidy in the CBA, broken
down as follows:a. Deiparine, Jennifer-60 Sacksb. Gerzon, Merlou-60
Sacksc. Nazareno, Marlyn-60 Sacksd. Lerazan, Josephine Sanchez-53
SacksTotal233 Sacks; and3.To grant to the complainants all the
benefits of the CBA after30 September 2002.SO ORDERED.[15]The NLRC
declared that the Labor Arbiter acted conformably with the Labor
Code when it granted respondents motion to refile the complaint and
admit their position paper. Although respondents were not parties
to the CBA between petitioner and the ABS-CBN Rank-and-File
Employees Union, the NLRC nevertheless granted and computed
respondents monetary benefits based on the 1999 CBA, which was
effective until September 2002.The NLRC also ruled that the Labor
Arbiter had jurisdiction over the complaint of respondents because
they acted in their individual capacities and not as members of the
union. Their claim for monetary benefits was within the context of
Article 217(6) of the Labor Code. The validity of respondents claim
does not depend upon the interpretation of the CBA.
The NLRC ruled that respondents were entitled to the benefits
under the CBA because they were regular employees who contributed
to the profits of petitioner through their labor.The NLRC cited the
ruling of this Court inNew Pacific Timber & Supply Company v.
National Labor Relations Commission.[16]Petitioner filed a motion
for reconsideration, which the NLRC denied.Petitioner thus filed a
petition forcertiorariunder Rule 65 of the Rules of Court before
the CA, raising both procedural and substantive issues, as follows:
(a) whether the NLRC acted without jurisdiction in admitting the
appeal of respondents; (b) whether the NLRC committed palpable
error in scrutinizing the reopening and revival of the complaint of
respondents with the Labor Arbiter upon due notice despite the
lapse of 10 days from their receipt of the July 30, 2001 Order of
the Labor Arbiter; (c) whether respondents were regular employees;
(d) whether the NLRC acted without jurisdiction in entertaining and
resolving the claim of the respondents under the CBA instead of
referring the same to the Voluntary Arbitrators as provided in the
CBA; and (e) whether the NLRC acted with grave abuse of discretion
when it awarded monetary benefits to respondents under the CBA
although they are not members of the appropriate bargaining
unit.OnFebruary 10, 2004, the CA rendered judgment dismissing the
petition.It held that the perfection of an appeal shall be upon the
expiration of the last day to appeal by all parties, should there
be several parties to a case. Since respondents received their
copies of the decision onSeptember 8, 2001(except respondent
Nazareno who received her copy of the decision onAugust 27, 2001),
they had untilSeptember 18, 2001within which to file their Appeal
Memorandum. Moreover, the CA declared that respondents failure to
submit their position paper on time is not a ground to strike out
the paper from the records, much less dismiss a complaint.Anent the
substantive issues, the appellate court stated that respondents are
not mere project employees, but regular employees who perform tasks
necessary and desirable in the usual trade and business of
petitioner and not just its project employees. Moreover, the CA
added, the award of benefits accorded to rank-and-file employees
under the 1996-1999 CBA is a necessary consequence of the NLRC
ruling that respondents, as PAs, are regular employees.Finding no
merit in petitioners motion for reconsideration, the CA denied the
same in a Resolution[17]datedJune 16, 2004.Petitioner thus filed
the instant petition for review oncertiorariand raises the
following assignments of error:1.THE HONORABLE COURT OF APPEALS
ACTED WITHOUT JURISDICTION AND GRAVELY ERRED IN UPHOLDING THE
NATIONAL LABOR RELATIONS COMMISSION NOTWITHSTANDING THE PATENT
NULLITY OF THE LATTERS DECISION AND RESOLUTION.2.THE HONORABLE
COURT OF APPEALS GRAVELY ERRED IN AFFIRMING THE RULING OF THE NLRC
FINDING RESPONDENTS REGULAR EMPLOYEES.3.THE HONORABLE COURT OF
APPEALS GRAVELY ERRED IN AFFIRMING THE RULING OF THE NLRC AWARDING
CBA BENEFITS TO RESPONDENTS.[18]Considering that the assignments of
error are interrelated, the Court shall resolve them
simultaneously.Petitioner asserts that the appellate court
committed palpable and serious error of law when it affirmed the
rulings of the NLRC, and entertained respondents appeal from the
decision of the Labor Arbiter despite the admitted lapse of the
reglementary period within which to perfect
the same. Petitioner likewise maintains that the 10-day period
to appeal must be reckoned from receipt of a partys counsel, not
from the time the party learns of the decision, that is, notice to
counsel is notice to party and not the other way around. Finally,
petitioner argues that the reopening of a complaint which the Labor
Arbiter has dismissed without prejudice is a clear violation of
Section 1, Rule V of the NLRC Rules; such order of dismissal had
already attained finality and can no longer be set
aside.Respondents, on the other hand, allege that their late appeal
is a non-issue because it was petitioners own timely appeal that
empowered the NLRC to reopen the case.They assert that although the
appeal was filed 10 days late, it may still be given due course in
the interest of substantial justice as an exception to the general
rule that the negligence of a counsel binds the client. On the
issue of the late filing of their position paper, they maintain
that this is not a ground to strike it out from the records or
dismiss the complaint.We find no merit in the petition.We agree
with petitioners contention that the perfection of an appeal within
the statutory or reglementary period is not only mandatory, but
also jurisdictional; failure to do so renders the assailed decision
final and executory and deprives the appellate court or body of the
legal authority to alter the final judgment, much less entertain
the appeal. However, this Court has time and again ruled that in
exceptional cases, a belated appeal may be given due course if
greater injustice may occur if an appeal is not given due course
than if the reglementary period to appeal were strictly
followed.[19]The Court resorted to this extraordinary measure even
at the expense of sacrificing order and efficiency if only to serve
the greater principles of substantial justice and equity.[20]In the
case at bar, the NLRC did not commit a grave abuse of its
discretion in giving Article 223[21]of the Labor Code a liberal
application to prevent the miscarriage of justice. Technicality
should not be allowed to stand in the way of equitably and
completely resolving the rights and obligations of the
parties.[22]We have held in a catena of cases that technical rules
are not binding in labor cases and are not to be applied strictly
if the result would be detrimental to the
workingman.[23]Admittedly, respondents failed to perfect their
appeal from the decision of the Labor Arbiter within the
reglementary period therefor.However, petitioner perfected its
appeal within the period, and since petitioner had filed a timely
appeal, the NLRC acquired jurisdiction over the case to give due
course to its appeal and render the decision ofNovember 14,
2002.Case law is that the party who failed to appeal from the
decision of the Labor Arbiter to the NLRC can still participate in
a separate appeal timely filed by the adverse party as the
situation is considered to be of greater benefit to both
parties.[24]We find no merit in petitioners contention that the
Labor Arbiter abused his discretion when he admitted respondents
position paper which had been belatedly filed. It bears stressing
that the Labor Arbiter is mandated by law to use every reasonable
means to ascertain the facts in each case speedily and objectively,
without technicalities of law or procedure, all in the interest of
due process.[25]Indeed, as stressed by the appellate court,
respondents failure to submit a position paper on time is not a
ground for striking out the paper from the records, much less for
dismissing a complaint.[26]Likewise, there is simply no truth to
petitioners assertion that it was denied due process when the Labor
Arbiter admitted respondents position paper without requiring it to
file a comment before admitting said position paper. The essence of
due process in administrative proceedings is simply an opportunity
to explain ones side or an opportunity to seek reconsideration of
the action or ruling complained of. Obviously, there is nothing in
the records that would suggest that petitioner had absolute lack of
opportunity to be heard.[27]Petitioner had the right to file a
motion for reconsideration of the Labor Arbiters admission of
respondents position paper, and even file a Reply thereto.In fact,
petitioner filed its position paper onApril 2, 2001.It must be
stressed that Article 280 of the Labor Code was encoded in our
statute books to hinder the circumvention by unscrupulous employers
of the employees right to security of tenure by indiscriminately
and absolutely ruling out all written and oral agreements
inharmonious with the concept of regular employment defined
therein.[28]We quote with approval the following pronouncement of
the NLRC:The complainants, on the other hand, contend that
respondents assailed the Labor Arbiters order dated18 June 2001as
violative of the NLRC Rules of Procedure and as such is violative
of their right to procedural due process.That while suggesting that
an Order be instead issued by the Labor Arbiter for complainants to
refile this case, respondents impliedly submit that there is not
any substantial damage or prejudice upon the refiling, even so,
respondents suggestion acknowledges complainants right to prosecute
this case, albeit with the burden of repeating the same procedure,
thus, entailing additional time, efforts, litigation cost and
precious time for the Arbiter to repeat the same process
twice.Respondents suggestion, betrays its notion of prolonging,
rather than promoting the early resolution of the case.Although the
Labor Arbiter in his Order dated18 June 2001which revived and
re-opened the dismissed case without prejudice beyond the ten (10)
day reglementary period had inadvertently failed to follow Section
16, Rule V, Rules Procedure of the NLRC which states:A party may
file a motion to revive or re-open a case dismissed without
prejudice within ten (10) calendar days from receipt of notice of
the order dismissing the same; otherwise, his only remedy shall be
to re-file the case in the arbitration branch of origin.the same is
not a serious flaw that had prejudiced the respondents right to due
process.The case can still be refiled because it has not yet
prescribed.Anyway, Article 221 of the Labor Code provides:In any
proceedings before the Commission or any of the Labor Arbiters, the
rules of evidence prevailing in courts of law or equity shall not
be controlling and it is the spirit and intention of this Code that
the Commission and its members and the Labor Arbiters shall use
every and all reasonable means to ascertain the facts in each case
speedily and objectively and without regard to technicalities of
law or procedure, all in the interest of due process.The admission
by the Labor Arbiter of the complainants Position Paper and
Supplemental Manifestation which were belatedly filed just only
shows that he acted within his discretion as he is enjoined by law
to use every reasonable means to ascertain the facts in each case
speedily and objectively, without regard to technicalities of law
or procedure, all in the interest of due process.Indeed, the
failure to submit a position paper on time is not a ground for
striking out the paper from the records, much less for dismissing a
complaint in the case of the complainant.(UniversityofImmaculate
Conceptionvs. UIC Teaching and Non-Teaching Personnel Employees,
G.R. No. 144702,July 31, 2001).In admitting the respondents
position paper albeit late, the Labor Arbiter acted within her
discretion.In fact, she is enjoined by law to use every reasonable
means to ascertain the facts in each case speedily and objectively,
without technicalities of law or procedure, all in the interest of
due process. (Panlilio vs. NLRC, 281 SCRA 53).The respondents were
given by the Labor Arbiter the opportunity to submit position
paper.In fact, the respondents had filed their position paper on2
April 2001.What is material in the compliance of due process is the
fact that the parties are given the opportunities to submit
position papers.Due process requirements are satisfied where the
parties are given the opportunities to submit position
papers.(Laurence vs. NLRC, 205 SCRA 737).Thus, the respondent was
not deprived of its Constitutional right to due process of
law.[29]We reject, as barren of factual basis, petitioners
contention that respondents are considered as its talents, hence,
not regular employees of the broadcasting company.Petitioners claim
that the functions performed by the respondents are not at all
necessary, desirable, or even vital to its trade or business is
belied by the evidence on record.Case law is that this Court has
always accorded respect and finality to the findings of fact of the
CA, particularly if they coincide with those of the Labor Arbiter
and the National Labor Relations Commission, when supported by
substantial evidence.[30]The question of whether respondents are
regular or project employees or independent contractors is
essentially factual in nature; nonetheless, the Court is
constrained to resolve it due to its tremendous effects to the
legions of production assistants working in the Philippine
broadcasting industry.We agree with respondents contention that
where a person has rendered at least one year of service,
regardless of the nature of the activity performed, or where the
work is continuous or intermittent, the employment is considered
regular as long as the activity exists, the reason being that a
customary appointment is not indispensable before one may be
formally declared as having attained regular status. Article 280 of
the Labor Code provides:ART. 280.REGULAR AND CASUAL EMPLOYMENT.The
provisions of written agreement to the contrary notwithstanding and
regardless of the oral agreement of the parties, an employment
shall be deemed to be regular where the employee has been engaged
to perform activities which are usually necessary or desirable in
the usual business or trade of the employer except where the
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 services to
be performed is seasonal in nature and the employment is for the
duration of the season.InUniversal Robina Corporation v.
Catapang,[31]the Court reiterated the test in determining whether
one is a regular employee:The primary standard, therefore, of
determining regular employment is the reasonable connection between
the particular activity performed by the employee in relation to
the usual trade or business of the employer. The test is whether
the former is usually necessary or desirable in the usual business
or trade of the employer. The connection can be
determined by considering the nature of work performed and its
relation to the scheme of the particular business or trade in its
entirety. Also, if the employee has been performing the job for at
least a year, even if the performance is not continuous and merely
intermittent, the law deems repeated and continuing need for its
performance as sufficient evidence of the necessity if not
indispensability of that activity to the business. Hence, the
employment is considered regular, but only with respect to such
activity and while such activity exists.[32]As elaborated by this
Court inMagsalin v. National Organization of Working Men:[33]Even
while the language of law might have been more definitive, the
clarity of its spirit and intent,i.e.,to ensure a regular workers
security of tenure, however, can hardly be doubted.In determining
whether an employment should be considered regular or non-regular,
the applicable test is the reasonable connection between the
particular activity performed by the employee in relation to the
usual business or trade of the employer.The standard, supplied by
the law itself, is whether the work undertaken is necessary or
desirable in the usual business or trade of the employer, a fact
that can be assessed by looking into the nature of the services
rendered and its relation to the general scheme under which the
business or trade is pursued in the usual course.It is
distinguished from a specific undertaking that is divorced from the
normal activities required in carrying on the particular business
or trade.But, although the work to be performed is only for a
specific project or seasonal, where a person thus engaged has been
performing the job for at least one year, even if the performance
is not continuous or is merely intermittent, the law deems the
repeated and continuing need for its performance as being
sufficient to indicate the necessity or desirability of that
activity to the business or trade of the employer.The employment of
such person is also then deemed to be regular with respect to such
activity and while such activity exists.[34]Not considered regular
employees are project employees, the completion or termination of
which is more or less determinable at the time of employment, such
as those employed in connection with a particular construction
project, and seasonal employees whose employment by its nature is
only desirable for a limited period of time.Even then, any employee
who has rendered at least one year of service, whether continuous
or intermittent, is deemed regular with respect to the activity
performed and while such activity actually exists.It is of no
moment that petitioner hired respondents as talents. The fact that
respondents received pre-agreed talent fees instead of salaries,
that they did not observe the required office hours, and that they
were permitted to join other productions during their free time are
not conclusive of the nature of their employment. Respondents
cannot be considered talents because they are not actors or
actresses or radio specialists or mere clerks or utility employees.
They are regular employees who perform several different duties
under the control and direction of ABS-CBN executives and
supervisors.Thus, there are two kinds of regular employees under
the law:(1) those engaged to perform activities which arenecessary
or desirablein the usual business or trade of the employer; and (2)
those casual employees who haverendered at least one year of
service, whether continuousor broken, with respect to the
activities in which they are employed.[35]The law overrides such
conditions which are prejudicial to the interest of the worker
whose weak bargaining situation necessitates the succor of the
State. What determines whether a certain employment is regular or
otherwise is not the will or word of the employer, to which the
worker oftentimes acquiesces, much less the procedure of hiring the
employee or the manner of paying the salary or the actual time
spent at work.It is the character of the activities performed in
relation to the particular tradeor business taking into account all
the circumstances, and in some cases the length of time of its
performance and its continued existence.[36]It is obvious that one
year after they were employed by petitioner, respondents became
regular employees byoperation of law.[37]
Additionally, respondents cannot be considered as project or
program employees because no evidence was presented to show that
the duration and scope of the project were determined or specified
at the time of their engagement. Under existing
jurisprudence,projectcould refer to two distinguishable types of
activities.First, a project may refer to a particular job or
undertaking that is within the regular or usual business of the
employer, but which is distinct and separate, and identifiable as
such, from the other undertakings of the company. Such job or
undertaking begins and ends at determined or determinable
times.Second, the term project may also refer to a particular job
or undertaking that is not within the regular business of the
employer. Such a job or undertaking must also be identifiably
separate and distinct from the ordinary or regular business
operations of the employer. The job or undertaking also begins and
ends at determined or determinable times.[38]The principal test is
whether or not the project employees were assigned to carry out a
specific project or undertaking, the duration and scope of which
were specified at the time the employees were engaged for that
project.[39]In this case, it is undisputed that respondents had
continuously performed the same activities for an average of five
years. Their assigned tasks are necessary or desirable in the usual
business or trade of the petitioner. The persisting need for their
services is sufficient evidence of the necessity and
indispensability of such services to petitioners business or
trade.[40]While length of time may not be a sole controlling test
for project employment, it can be a strong factor to determine
whether the employee was hired for a specific undertaking or in
fact tasked to perform functions which are vital, necessary and
indispensable to the usual trade or businessof the employer.[41]We
note further that petitioner did not report the termination of
respondents employment in the particular project to the Department
of Labor and Employment Regional Office having jurisdiction over
the workplace within 30 days following the date of their separation
from work, using the prescribed form on employees termination/
dismissals/suspensions.[42]As gleaned from the records of this
case, petitioner itself is not certain how to categorize
respondents. In its earlier pleadings, petitioner classified
respondents asprogram employees, and in later pleadings,independent
contractors. Program employees, orproject employees, are different
from independent contractors because in the case of the latter, no
employer-employee relationship exists.Petitioners reliance on the
ruling of this Court inSonza v. ABS-CBN Broadcasting
Corporation[43]is misplaced.In that case, the Court explained why
Jose Sonza, a well-known television and radio personality, was an
independent contractor and not a regular employee:A.Selection and
Engagement of EmployeeABS-CBN engaged SONZAS services to co-host
its television and radio programs because of SONZAS peculiar
skills, talent and celebrity status.SONZA contends that the
discretion used by respondent in specifically selecting and hiring
complainant over other broadcasters of possibly similar experience
and qualification as complainant belies respondents claim of
independent contractorship.Independent contractors often present
themselves to possess unique skills, expertise or talent to
distinguish them from ordinary employees.The specific selection and
hiring of SONZA,because of his unique skills, talent and celebrity
status not possessed by ordinary employees,is a circumstance
indicative, but not conclusive, of an independent contractual
relationship.If SONZA did not possess such unique skills, talent
and celebrity status, ABS-CBN would not have entered into the
Agreement with SONZA but would have hired him through its personnel
department just like any other employee.In any event, the method of
selecting and engaging SONZA does not conclusively determine his
status.We must consider all the circumstances of the relationship,
with the control test being the most important element.B.Payment of
WagesABS-CBN directly paid SONZA his monthly talent fees with no
part of his fees going to MJMDC.SONZA asserts that this mode of fee
payment shows that he was an employee of ABS-CBN.SONZA also points
out that ABS-CBN granted him benefits and privileges which he would
not have enjoyed if he were truly the subject of a valid job
contract.All the talent fees and benefits paid to SONZA were the
result of negotiations that led to the Agreement.If SONZA were
ABS-CBNs employee, there would be no need for the parties to
stipulate on benefits such as SSS, Medicare, x x x and 13thmonth
pay which the law automatically incorporates into every
employer-employee contract.Whatever benefits SONZA enjoyed arose
from contract and not because of an employer-employee
relationship.SONZAs talent fees, amounting toP317,000 monthly in
the second and third year, are so huge and out of the ordinary that
they indicate more an independent contractual relationship rather
than an employer-employee relationship.ABS-CBN agreed to pay SONZA
such huge talent fees precisely because of SONZAS unique skills,
talent and celebrity status not possessed by ordinary
employees.Obviously, SONZA acting alone possessed enough bargaining
power to demand and receive such huge talent fees for his
services.The power to bargain talent fees way above the salary
scales of ordinary employees is a circumstance indicative, but not
conclusive, of an independent contractual relationship.The payment
of talent fees directly to SONZA and not to MJMDC does not negate
the status of SONZA as an independent contractor.The parties
expressly agreed on such mode of payment.Under the Agreement, MJMDC
is the AGENT of SONZA, to whom MJMDC would have to turn over any
talent fee accruing under the Agreement.[44]In the case at bar,
however, the employer-employee relationship between petitioner and
respondents has been proven.First.In the selection and engagement
of respondents, no peculiar or unique skill, talent or celebrity
status was required from them because they were merely hired
through petitioners personnel department just like any ordinary
employee.Second.The so-called talent fees of respondents correspond
to wages given as a result of an employer-employee relationship.
Respondents did not have the power to bargain for huge talent fees,
a circumstance negating independent contractual
relationship.Third.Petitioner could always discharge respondents
should it find their work unsatisfactory, and respondents are
highly dependent on the petitioner for continued work.Fourth.The
degree of control and supervision exercised by petitioner over
respondents through its supervisors negates the allegation that
respondents are independent contractors.The presumption is that
when the work done is an integral part of the regular business of
the employer and when the worker, relative to the employer, does
not furnish an independent business or professional service, such
work is a regular employment of such employee and not an
independent contractor.[45]The Court will peruse beyond any such
agreement to examine the facts that typify the parties actual
relationship.[46]It follows then that respondents are entitled to
the benefits provided for in the existing CBA between petitioner
and its rank-and-file employees. As regular employees, respondents
are entitled to the benefits granted toall other regular employees
of petitioner under the CBA.[47]We quotewith approval the ruling of
the appellate court, that the reason why production assistants were
excluded from the CBA is precisely because they were erroneously
classified and treated as project employees by petitioner:
x x xThe award in favor of private respondents of the benefits
accorded to rank-and-file employees of ABS-CBN under the 1996-1999
CBA is a necessary consequence of public respondents ruling that
private respondents as production assistants of petitioner are
regular employees.The monetary award is not considered as claims
involving the interpretation or implementation of the collective
bargaining agreement.The reason why production assistants were
excluded from the said agreement is precisely because they were
classified and treated as project employees by petitioner.As
earlier stated, it is not the will or word of the employer which
determines the nature of employment of an employee but the nature
of the activities performed by such employee in relation to the
particular business or trade of the employer.Considering that We
have clearly found that private respondents are regular employees
of petitioner, their exclusion from the said CBA on the misplaced
belief of the parties to the said agreement that they are project
employees, is therefore not proper.Finding said private respondents
as regular employees and not as mere project employees, they must
be accorded the benefits due under the said Collective Bargaining
Agreement.A collective bargaining agreement is a contract entered
into by the union representing the employees and the
employer.However, even the non-member employees are entitled to the
benefits of the contract.To accord its benefits only to members of
the union without any valid reason would constitute undue
discrimination against non-members.A collective bargaining
agreement is binding on all employees of the company.Therefore,
whatever benefits are given to the other employees of ABS-CBN must
likewise be accorded to private respondents who were regular
employees of petitioner.[48]Besides, only talent-artists were
excluded from the CBA and not production assistants who are regular
employees of the respondents. Moreover, under Article 1702 of the
New Civil Code: In case of doubt, all labor legislation and all
labor contracts shall be construed in favor of the safety and
decent living of the laborer.IN LIGHT OF ALL THE FOREGOING, the
petition isDENIEDfor lack of merit.The assailed Decision and
Resolution of the Court of Appeals in CA-G.R. SP No. 76582
areAFFIRMED. Costs against petitioner.FIRST DIVISIONANGELINA
FRANCISCO,G.R. No. 170087Petitioner,Present:Panganiban,C.J.
(Chairperson),- versus -Ynares-Santiago,Austria-Martinez,Callejo,
Sr., andChico-Nazario,JJ.NATIONAL LABOR RELATIONSCOMMISSION, KASEI
CORPORATION,SEIICHIRO TAKAHASHI, TIMOTEOACEDO, DELFIN LIZA,
IRENEBALLESTEROS, TRINIDAD LIZAPromulgated:and RAMON
ESCUETA,Respondents.August 31, 2006x
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xDECISIONYNARES-SANTIAGO,J.:This petition for review
oncertiorariunder Rule 45 of the Rules of Court seeks to annul and
set aside the Decision and Resolution of the Court of Appeals dated
October 29, 2004[1]and October 7, 2005,[2]respectively, in CA-G.R.
SP No. 78515 dismissing the complaint for constructive dismissal
filed by herein petitioner Angelina Francisco.The appellate court
reversed and set aside the Decision of the National Labor Relations
Commission (NLRC) dated April 15, 2003,[3]in NLRC NCR CA No.
032766-02 which affirmed with modification the decision of the
Labor Arbiter dated July 31, 2002,[4]in NLRC-NCR Case No.
30-10-0-489-01, finding that private respondents were liable for
constructive dismissal.In 1995, petitioner was hired by Kasei
Corporation during its incorporation stage.She was designated as
Accountant and Corporate Secretary and was assigned to handle all
the accounting needs of the company.She was also designated as
Liaison Officer to the City of Makati to secure business permits,
construction permits and other licenses for the initial operation
of the company.[5]Although she was designated as Corporate
Secretary, she was not entrusted with the corporate documents;
neither did she attend any board meeting nor required to do so.She
never prepared any legal document and never represented the company
as its Corporate Secretary.However, on some occasions, she was
prevailed upon to sign doc