323 Phil. 521; 92 OG No. 44, 7375 (November 4, 1996)
KAPUNAN, J.:
19 July 1991
MEMO
TO : Project In-Charge
GPI Building
FROM : GING B. SALERA
SUBJECT : Timed in Workers on Strike
As per report of your foreman, Rod Agustin, the following workers timed-in and are in the building and NOT WORKING.
1. Melanio, Victor
2. Bruca, Marco
3. Bruca, Ernesto
4. Fajardo, Jesus
5. Florendo, Eduardo
6. Osas, Danilo
7. Villapana, Arsenio
8. Pispis, Alejandro
9. Tolete, Rolando
10. Florendo, Gregorio
I will not wish to condone this act. Hence, please advice them to report to the office tomorrow, Saturday, 20 July 1991 to settle their salaries and I would NOT LIKE TO SEE them in this project anymore, lest, they stay in the worker’s quarters. Further, I am making them absent today and will cancel their names in the daily time record.
For your information and strict compliance.
(Sgd.) GING B. SALERA[1]
Consequently, for being dismissed without just and valid cause, the complainants in lieu of reinstatement must be paid by the respondents of their separation pay at the rate of one (1) month pay for every year of service. Said separation pay is hereunder computed as follows:
P129.00/day x 26 days = P3,354.00/mo.
P3,354.00/mo. x 12 years = P40,248.00
P40,248.00 x 2 complainants P80,496.00
Finally, being compelled to litigate, it is but just and mete that complainants must be awarded attorney’s fees equivalent to ten percent (10%) of the amount adjudicated in their favor.
WHEREFORE, all the foregoing premises being considered, judgment is hereby rendered ordering the respondents L.T. Datu and Co., and/or Hermilo Datu, jointly and solidarily, to pay complainants the aggregate sum of P80,496.00 plus attorney’s fees in the amount of P8,049.60.
SO ORDERED.
PREMISES CONSIDERED, the appealed decision is hereby AFFIRMED with modification that in addition to the separation benefit awarded to the complainants in the aggregate sum of P80,494.00, the same to include the award of backwages from the time of complainants dismissal in July 1991 up to the time of the Arbiter’s decision, quantified in the amount of P23,478.00 due each complainant plus attorney’s fee equivalent to 10% of total award in the amount of P12,745.20.
SO ORDERED.[3]
I
THE NLRC AND THE ARBITER COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN BY MERE SPECULATION CONJECTURE OR MISAPPREHENSION IT ARBITRARILY RULED THAT THE MEMORANDUM DATED JULY 19, 1991 IS A DISMISSAL LETTER WITHOUT GIVING ANY REASON FOR SUCH RULING;II
THE NLRC AND THE ARBITER COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT ARBITRARILY AND WHIMSICALLY RULED CONTRARY TO LAW AND EVIDENCE THAT PRIVATE RESPONDENTS WERE MEMBERS OF A WORK POOL AND WERE REGULAR EMPLOYEES;III
THE NLRC AND THE ARBITER COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT ARBITRARILY RULED CONTRARY TO LAW AND WITHOUT ANY FACTUAL BASIS THAT PRIVATE RESPONDENTS ARE ENTITLED TO SEPARATION PAY AND BACK WAGES.[5]
xxx xxx xxx
The above-quoted memorandum negates the respondents’ assertion that complainants were not terminated as well as their allegation that complainants refused to accept a new assignment in a new project. Said memorandum demonstrably shows that complainants were summarily dismissed without being afforded their rights to due process as mandatorily required under Article 277 of the Labor Code, as amended.
If indeed the ten (10) workers involved including the herein two (2) complainants were not working although they reported for work and timed-in on July 19, 1991, what the respondents should have done was to require the subject workers to explain in writing why they should not be dealth (sic) with any disciplinary action including dismissal for their act of refusing to work and staying at the workers’ quarters. This is in line with the requirement of the law obligating employers to issue a prior notice stating the grounds for any termination and allowing the workers involved to explain their side. While the respondents have the prerogatives to dismiss and discipline their employees, nevertheless, they cannot disregard at will the mandatory requirements of the law before exercising such prerogatives.
What we discern from the circumstances of the instant case is that complainants together with eight (8) other workers indeed protested the delay in the payment of their salaries, and by way of protest they simply refused to work on July 19, 1991 by staying inside the workers’ quarters. The complainants cannot be faulted from resorting to protest actions and part of the blame rests on the respondents. While the act of the complainants may not be tolerated, nonetheless, such act will definitely not justify the termination of said complainants’ services.[8]
Article 280 of the Labor Code provides:
ARTICLE 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.
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 year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. (Italics supplied.)
xxx xxx xxx
The argument adopted by the respondents that complainants are project employees cannot be accorded with merit. Complainants have been in the employ of the respondents since 1979 or for a period of twelve (12) years, more or less. The admission by the respondents that complainants are being transferred to another project has led this Branch to the conclusion that at least, complainants were part of a work pool being maintained by the respondent company. Besides, the continuity of the complainants’ employment by the respondents for such a long period of time being assigned from one project after another militates strongly against the respondents’ contention. This Branch finds the complainants as regular employees.[11]
By petitioner’s own admission, the private respondents have been hired to work on certain special orders that as a matter of business policy it cannot decline. These projects are necessary or desirable in its usual business or trade, otherwise they could not have been accepted by the petitioner. Significantly, such special orders are not really seasonal but more or less regular, requiring the virtually continuous services of the "temporary workers."
The NLRC also correctly observed that "if we were to accept respondent’s theory, it would have no regular workers because all of its orders would be special undertakings or projects." The petitioner could then hire all its workers on a contract basis only and prevent them from attaining permanent status regardless of the length of their service.
Furthermore, the NLRC has determined that the private respondents have worked for more than one year in the so-called "special projects" of the petitioner and so also fall under the second condition specified in the above-quoted provision. The public respondent did not err in giving little probative value to the temporary employment contracts submitted by the petitioner because they did not accurately reflect the length of time the employees actually worked for the petitioner. This is a factual finding of the administrative agency that, in line with a long-standing policy, this Court will not disturb.
x x x where the employment of project employees is extended long after the supposed project had been finished, the employees are removed from the scope of project employees and they shall be considered regular employees. x x x[16]
Members of a work pool from which a construction company draws its project employees, if considered employees of the construction company while in the work pool, are non-project employees or employees for an indefinite period. If they are employed in a particular project, the completion of the project or of any phase thereof will not mean severance of employer-employee relationship.
x x x Basa’s failure to specifically pray for the relief of reinstatement in a complaint which he personally prepared and signed using a standard form prepared by the NLRC Regional Arbitration, Branch No. Xl, Davao City, is a procedural lapse which he is entitled under a substantive law. Technicalities have no room in labor cases, where the Rules of Court are applicable only in order to effectuate the objectives of the Labor Code and not to defeat them. The pertinent provisions of the Revised Rules of Court of the Philippines and prevailing jurisprudence may be applied by analogy or in a suppletory character to effect an expeditious resolution of labor controversies in a practical and convenient manner. We are inclined to overlook a procedural defect if only to promote substantial justice.xxx
The NLRC, however, erroneously referred to unpaid salaries as ‘backwages’ when it excluded allowances therefrom. In order to obviate any further controversy on this matter, We would like to clarify the difference between the two terms. When the term ‘backwages’ was used in the NLRC Decision, what was actually meant was unpaid salaries, which pertain to compensation due the employee for services actually rendered before termination. Backwages, on the other hand, refer to his supposed earnings had he not been illegally dismissed. Unpaid salaries refer to those earned prior to dismissal whereas backwages refer to those earnings lost after illegal dismissal. Thus, reinstatement would always bring with it payment of backwages but not necessarily payment of unpaid salaries. Payment of unpaid salaries is only ordered if there are still salaries collectible from his employer by reason of services already rendered.