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352 Phil. 252
FIRST DIVISION
[ G.R. No. 118695, April 22, 1998 ]
CEBU ENGINEERING AND
DEVELOPMENT COMPANY, INC., PETITIONER, VS. NATIONAL LABOR RELATIONS
COMMISSION AND JAIME PEREZ, RESPONDENTS.
D E C I S I O N
BELLOSILLO, J.:
ASSERTING grave
abuse of disretion amounting to lack or excess of jurisdiction, petitioner
seeks to annul the decision of the National Labor Relations Commission (NLRC)
finding it liable for illegal dismissal and damages.
In the first week of November 1991 private
respondent Jaime Perez was hired as clerk for P120.00 a day by Cebu
Engineering and Development Company (CEDCO) which was engaged in the business
of providing engineering infrastructure, designing and consultancy services to
construction and development projects. His first assignment was to the Metro Cebu Development Project (MCDP)
II. In the last week of May 1992, when
the field teams of petitioner were reduced to only two (2), he was reassigned
to MCDP III effective 1 June 1992.
On 16 December
1992 private respondent was ordered by his supervisor, a certain Ms. Tudtud, to
drive an engineer and her team to the job site but Perez refused because, according to him, the car
could only be used by the President of the company or by one specifically
authorized by him, and also, the rental
contracts of the vehicles restricted the use of the car to only those
authorized and the engineer was not.
On 23 December
1992 respondent Perez was summoned by
Mr. Butalid, CEDCO Vice President for Administration and Finance, to the latter's
office and asked why he did not comply with the order of Ms. Tudtud. After a confrontation with Ms. Tudtud, the
project accountant, and one Ramon
Pernea, Perez was given a notice of recall and a notice of termination at the
same time. Resisting his recall and
termination, Perez filed a case for illegal dismissal with the Labor Arbiter's
office.
On 4 January
1994 Labor Arbiter Nicasio C. Aninon ruled that private respondent's employment was not regular and was
merely coterminous with the MCDP project which was already completed as of 30
June 1993. The Labor Arbiter however
found the dismissal to be groundless
and granted Perez back wages from the time of termination up to the time of
completion of the project. The award of back wages however was reduced to only three
(3) months because he found Mr. Perez
not entirely blameless for his recall and termination.[2]
Both parties
appealed to the NLRC. On 17 November
1994 the NLRC reversed the Labor Arbiter's decision on the status of Perez' employment and found him to be a regular employee, affirmed the finding of illegal dismissal
and ordered his reinstatement. It
expanded the award of back wages from the time of dismissal not only until
completion of the MCDP III but until his actual reinstatement. The NLRC
also ordered that in the event reinstatement was impossible or impracticable,
CEDCO was also directed to give separation pay of one (1) month for every year
of service.[3]”
Petitioner’s
motion for reconsideration was denied; hence, this petition raising the issue of whether the NLRC committed grave
abuse of discretion amounting to lack or excess of jurisdiction: (a) in finding private
respondent a regular employee, contrary to the decision of the Labor Arbiter;
(b) in disregarding the numerous infractions constituting just cause for
termination or discontinuance of Perez' employment with CEDCO; (c) in ordering the reinstatement of
Perez although the remedy was not sought for in his appeal and comment and/or
answer to CEDCO's partial appeal; and, (d) in awarding back wages to Perez even after 30 June 1993, the date of completion of the MCDP
III.[4]”
The petition is
without merit.
Petitioner
insists that respondent Perez was a project employee who was first hired for a
fixed period from November 1991 to May 1992 but was unable to finish his term
because he had to go to Manila to attend to some personal matters. When he reapplied the company only accommodated him out of kindness. This time he was assigned to MCDP III. Petitioner offered as evidence Perez’
notarized contract for personal services duly signed by him which stipulated
that his employment was from 1 June 1992
to 30 November 1992. Thus Perez was
merely a project employee and his term of employment was coterminous with the
existence of the project.
We do not
agree. It is not disputed that private
respondent started working with petitioner in November 1991 and continued to do
so until 16 December 1992. There is no
evidence to prove petitioner's allegation that private respondent preterminated
his employ in May of 1992. The records
do not show any resignation letter. Neither does the contract for personal services purportedly signed by
private respondent conclusively establish a casual employment. On the contrary, we have oftentimes regarded such contract as an employer's device for
circumventing the employee's right to security of tenure. Hence, it does not matter that the employee
signs a contract for personal services in which is stipulated the temporary
period of his employment. What
determines the regularity of one's employment is whether he was engaged to
perform activities which are necessary and desirable in the usual business or
trade of the employer. And indeed private
respondent's employ was vital to the company as evidenced by the memorandum
sent to him by the Vice President when he was assigned to MCDP III. Thus he was instructed to "abide by the
rules and regulations of the project office without abdicating your role as
a responsible corporate member of CEDCO Inc."[5] (underscoring
supplied).
Private respondent belonged to a work pool
from which CEDCO drew its employees and assigned them to different projects.[6]” He was not hired for a specific project. He
was a regular employee to different
projects. He was in fact a mainstay of the company. Contrary to petitioner’s claim, his services were not terminated
on 30 November 1992. He continued
working after that. Hence, according
to the law, on 1 December 1992, after a year of continuous work, he became a
regular employee regardless of any contract to the contrary. It is in keeping with the intent and spirit
of the law to rule that the status of regular employment attaches to the casual
worker on the day immediately after the end of the first year of service.[7]”
Petitioner
next contends that the dismissal of
Perez was with just cause considering the numerous infractions he had
committed, namely, insubordination, overpricing in the purchase of mylar
sheets, and incompetence in handling his job as a clerk.
The contention
is without merit. They are mere
allegations. Aside from the fact that
CEDCO did not have one single evidence
to prove the infractions, private respondent's dismissal was for an entirely different
cause. Perez was dismissed not because
the term of employment had already expired, nor that the project had been
completed, but solely because he had allegedly become a "redundant"
employee.[8] Again,
such allegation was never proved. This
leads us to agree with the NLRC that the alleged infractions were "trumped
up to camouflage the illegal act of CEDCO in dismissing the complainant."[9]
Furthermore,
assuming arguendo that there was a valid reason for dismissing private
respondent, such dismissal must be
coupled with due process which requires the employer to furnish the worker or
employee sought to be dismissed with two (2) written notices, i.e., (a) notice
which apprises the employee of the particular acts or omissions for which his
dismissal is sought; and, (b) subsequent notice which informs the employee of
the employer's decision to dismiss him.[10]” The records show that no such notices were
furnished respondent Perez. Such
failure to comply with the requirement indeed taints his dismissal with irregularity. Moreover, the contract for personal services stipulated that such
contract shall be cancelled "subject to ten (10) days notice from the Project
Manager." Perez was never given
any 10-day notice. CEDCO did not even
comply with its own stipulation, hence, Perez’ dismissal was illegal.
CEDCO also
contends that the NLRC has no jurisdiction to order the reinstatement of Perez
since such remedy was not sought for in his appeal, and that courts cannot
grant reliefs not prayed for in the complaint or appeal, nor decide on matters
not at issue.
Petitioner is
wrong on both counts. Reinstatement is
one of the reliefs specifically enumerated in both the complaint and the notice
of appeal to the NLRC.[11]” Nonetheless, the NLRC may, in the exercise
of its appellate powers, correct, amend or waive any error, defect or
irregularity, whether in substance or
in form.[12]”
Lastly, CEDCO
assails the award of back wages beyond
the completion date of MCDP III. There
is nothing whimsical or abitrary in the exercise of this prerogative. NLRC ruled that Perez was a regular employee
of CEDCO, not a project employee of MCDP. Hence, his employment goes beyond the completion of MCDP III. The award is merely a consequential effect
of the NLRC finding.
WHEREFORE, the petition is dismissed and the
decision of public respondent NLRC is AFFIRMED. Petitioner CEDCO is ordered to
reinstate private respondent Jaime Perez immediately to his former position without loss of seniority
rights and benefits, with full back wages from date of his dismissal until his
actual reinstatement.
SO ORDERED.
[1] Eastern Shipping Lines, Inc. v. POEA, G.R. No.
76633, 18 October 1988, 166 SCRA 533, 547.
[2] Decision penned by Labor Arbiter Nicasio C. Aninon,
NLRC, Cebu City, Branch No. VII, Case No. NLRC RAB VII-01-0007-93, 15 April
1994.
[3] Decision penned by Commissioner Amorito V. Cañete, concurred
in by Presiding Commissioner Irenea E. Ceniza with Commissioner Bernabe S.
Batuhan dissenting, NLRC Fourth
Division, Cebu City, NLRC Case No. V-0196-94, 17 November 1994.
[4] Petition, pp. 9-10; Rollo, pp. 10-11.
[5] Records, p. 563.
[6] TSN, 9 June 1993, p. 30.
[7] Baguio Country Club Corporation v. NLRC, G.R.
No. 71664, 28 February 1992, 206 SCRA 643.
[8] Records, p. 572.
[9] NLRC Decision, p. 16; Rollo, p. 57.
[10] Pepsi Cola Bottling Co. v. NLRC, G.R. No. 101900, 23 June 1992, 201 SCRA 277.
[11] Complaint, pp. 1 & 3, Notice of Appeal, p. 5;
Records, pp. 19, 21 & 335.
[12] The Labor Code, Art. 218,
Sec. (c).