360 Phil. 218
PANGANIBAN, J.:
“WHEREFORE, the instant appeals are hereby dismissed for lack of merit.”[2]
“WHEREFORE, premises considered, respondent PHILIPPINE TOBACCO FLUE-CURING and REDYING CORPORATION is hereby ordered to pay within ten (10) days from receipt hereof herein complainants (Lubat group) their respective separation pay, equivalent to one-half month pay for every year of service considering the above stated conditions, as follows: under Lubat Group: Mary Jane Estaris - P9,206.25 (P122.75 x 15 days x 5 yrs.); Eufrecina Javier -- P9,131.25 (P121.75 x 15 days x 5 yrs.); Ofelia Plandez -- P10,957.50 (P121.75 x 15 days x 6 yrs.); Edgardo Pormento - P5,310 (P118 x 15 x 3 yrs.); Cresenciana Tiu -- P7,140 (P119 x 15 days x 4 yrs.); Ma. Victoria Leon -- P7,305 (P121.75 x 15 days x 4 yrs.); Ligaya Lubat -- P11,047.50 (122.75 x 15 days x 6 yrs.); Gellen Eulalia -- P12,888.75 (P122.75 x 15 days x 7 yrs.); and Aida Licudo -- P18,630 (P124.20 x 15 days x 10 yrs.); and [u]nder Luris group: Erlinda Borce -- P37,116 (P154.65 x 15 days x 21 yrs.) -- (less) of P11,598.75); Dominga Ayala -- P56,477.94 (P156.40 x 15 days x 32 yrs.) -- P18,594.06); Carmelita Apanto -- P42,720.20 (P154.65 x 15 days x 22 yrs.) -- P13,757.74); Aida Albaniel -- P6,693.75 (P148.75 x 15 days x 5 yrs.) -- P4,462.50); Salvacion Sorio -- (P51,034.50 (P154.65 x 15 days x 30 yrs.) -- P18,558.00); Petronila Samon Petronilo Samson) -- P13,567.50 (P150.75 x 15 days x 9 yrs.) P6,783.75); Erlinda Caranay -- P34,615.81 (P153.65 x 15 days x 20 yrs.) P11,479.19); Rosalie Tiu -- P11,231.25 (P149.75 x 15 days x 7 yrs.) -- P4,492.50); Milagros Quismundo -- P44,943.73 (P154.65 x 15 days x 26 yrs.) -- P16,149.78); Luz dela Cruz -- P13,567.50 (P150.75 x 15 days x 9 yrs.) -- P6,783.75); Vivian Derla -- P13,477.50 (P149.75 x 15 days x 8 yrs.) -- P4,492.50); Irene Eniego -- P7,475.31 (P149.75 x 15 days x 5 yrs.) -- (P3,755.94); Vicenta Garcia -- P44,618.56 (P155.35 x 15 days x 26 yrs.) -- P15,967.94); Yolanda Ignacio -- P7,400.31 (P148.75 x 15 days x 5 yrs.) -- P3,755.94); Adoracion Ladera P18,276 (P152.30 x 15 days x 12) -- P9,138); Luciana Luris -- P64,577.78 (P159 x 15 days x 35 yrs.) -- P18,975.97); Gloria Mendez -- P32,266.50 yrs.) -- P3,755.94); Julieta Pedrigal -- P54,622.68 (P156.40 x 15 x 32 yrs.) -- P20,449.32); Antonia Reyes -- P52,410.26 (P155.35 x 15 x 33 yrs.) -- P24,487.99); Josefa Rosales -- P32,291.83) P153.65 x 15 x 18 yrs.) -- P9,193.67); Francisca Tismo -- P25,377.67); (P153.65 x 15 x 5 yrs.) -- P9,193.58); Norma Aguirre -- P11,300.25 (P150.75 x 15 x 8 yrs.) P6,783.75); Carolina Aviso -- P4,522.50 (P150.75 x 15 x 4 yrs.) -- P4,522.50); Amelia Bautista -- P13,567.50 (P150.75 x 15 x 9 yrs.) -- P6,783.75); Rosa Borja -- P2,863.75 (P145 x 15 x 3 yrs.) -- P3,661.25); Apolonia Castillo -- P27,540 (P153 x 15 x 17 yrs.) -- P11,475); Carmelita Cayetano P34,571.25 (P153.65 x 15 x 20 yrs.) -- P11,523.75); Roselfida Centina -- P11,231.25 (P149.75 x 15 x 7 yrs.) -- P4,492.50); Patria Bustillo -- P39,461.41 (P154.65 x 15 x 24 yrs.) -- P16,212.59); Felicidad Cipriano -- P11,306.25 (P150.75 x 15 x 8 yrs.) -- P6,783.75); Marina Corpuz -- P15,716.25 (150.75 x 15 x 10 yrs.) -- P6,783.75); Matilde Corpuz -- P34,312.50 (P152.50 x 15 x 20 yrs.) -- P11,437.50); Josefina Cuenza -- P70,241.05 (P159.85 x 15 x 40 yrs.) -- P25,668.95); Bienvenida De Guzman -- P68,974.45 (P159.15 x 15 x 39 yrs.) -- P24,128.30; Eugenio dela Cruz -- P30,281.21 (P153.65 x 15 x 17 yrs.) -- P8,899.54); Maria Pineda -- P11,306.25 (P150.75 x 15 x 8 yrs.) -- P6,783.75); Panchita Narca – P34,571.25 (P153.65 x 18 x 20) -- P11,523.75); Crisanta Mulawin -- P25,389.98 (P153.65 x 15 x 15 yrs. -- P9,181.87); Virginia Mengolio -- P34,571.25 (P153.65 x 15 x 20 yrs. -- P11,523.75); Rosario Osma -- P25,286.14 (P153. x 15 x 15 yrs.) -- P9,138.80); Arceli Madrilejo -- P51,034.50 (P154.65 x 15 x 28 yrs.) -- P13,918.50); Christopher Labador -- P13,507.57 (P149.75 x 15 x 8 yrs.) -- P4,462.43); Candelaria Lazona -- P39,435.80 (P154.65 x 15 x 22 yrs.) -- P11,598.75); Angelita Lestingyo -- P56,469.28 (156 x 15 x 32 yrs.) -- P18,602.72); Carmelita Espiritu -- P20,499.75 (P151.85 x 15 x 13 yrs.) -- P9,111); Helen Estaris -- P11,156.25 (P148.75 x 15 x 7 yrs.) -- P4,462.50); Rosa Japson -- P29,961.75 (P153.65 x 15 x 18 yrs.) -- P11,523.75); Ardionela Lazona -- P13,479.50) (P149.75 x 15 x 8 yrs.) -- P4,490.50); Ariel Ultra -- P20,773.70 (P150.75 x 15 x 13 yrs.) -- P8,622.55); Reynante Tumbucon -- P4,343.50 (P147.75 x 15 x 7 yrs. -- P6,738.75); Antenor Remollino -- P13,609.36) P148-75 x 15 x 8 yrs.) -- P4,240.64); Alexander Remollino -- P7,425.56 (P148.75 x 15 x 5 yrs.) -- P3,760.69); Arnaldo Napalit -- P27,817.29 (P152.30 x 15 x 16 yrs. -- P8,734.71); Macario Moriel -- P37,046.96 (153.65 x 15 x 22 yrs. -- (P13,657.57); Joselito Licudo -- P5,135 (P147.75 x 15 x 4 yrs. -- P3,730.69); Paterno Lavalle -- P7,350.56 (P147.75 x 15 x 5 yrs. -- P3,730.69); Jerry Licudo -- P11,257.05 (P149.75 x 15 x 7 yrs. -- P4,466.70); Cesar Samson -- P2,918.06 (P147.75 x 15 x 3 yrs. -- P3,730.69); Eduardo Esguerra, Jr. P20,412 (P151.20 x 15 x 15 yrs. -- P13,608); Ramises Centaran -- P17,970 (P149.75 x 15 x 8 yrs. less the amount advanced to him if any; Juan Bustillo -- P9,665.26 (P148.75 x 15 x 6 yrs. -- P3,722.24); Rolando Albaniel -- P20,351.25 (P150.75 x 15 x 12 yrs. -- P6,783.75); Reynaldo Aquino -- P27,475.35 (P150.75 x 15 x 16 yrs. -- P8,704.65); Jaime Esguerra -- P3,175.20 (P151.20 x 15 x 19 yrs. -- P11,340); Armando Japson -- P11,156.25 (P148.75 x 15 x 7 yrs. -- P4,462.50); Fernando Esguerra -- P15,723[.]75 (P149.75 x 15 x 9 yrs. -- P4,492.50); Carlito Eniego -- P13,066.14 (P145.94 x 15 x 8 yrs. -- P4,446.66); Carlito Eniego -- P13,066.14 (P145.95 x 15 x 8 yrs. -- P4,446.66); Reynaldo Dayot -- P9,566.81 (P147.75 x 15 x 6 yrs. -- P3,730.69); Marcelo Dayot -- P9,074.36 (P149.75 x 15 x 7 yrs. -- P6,649.39); Rodolfo Cerbite -- P24,873.75 (P150.75 x 15 x 16 yrs. - P11,306.25); Artemio Boquilla -- P44,362.93 (P153.65 x 15 x 25 yrs. -- P13,255.82); and the following subject to the no. of years provided they rendered at least one (1) month service each season as appearing in their personnel and service records; Pascuala Aguja -- P48,399.75 (P153.65 x 15 x 26 yrs. -- P11,523.75); Eric Aguja -- P9,667.50 (P118 x 15 x 8 yrs. -- P4,492.50); Celestina Aquino -- P11,257.51 (P149,75 x 15 x 8 yrs. -- P6,712.49); Reynaldo Barquin -- P13,519.26 (P149.75 x 15 x 9 yrs. -- P6,696.99); Felomena Bagonia -- P24,716.25 (150 x 15 x 14 yrs. -- P6,783.75); Rosita Bagonia -- P42,386.26 (P149.75 x 15 x 24 years. -- P11,523.75); Regina Benitez -- P56,586.75 (P151 x 15 x 28 yrs. -- P6,833.25); Edgardo Bergano -- P9,784.75 (P149.40 x 15 x 6 yrs. -- P3,661.25); Rodolfo Borromeo -- P26,979.81 (P150 x 15 x 18 yrs. -- P13,520.19); Ludivico Dalay -- P14,180.36 (P152.50 x 15 x 10 yrs. -- P8,694.64); Ascilipiades Goyena -- P27,020.63 (P150 x 15 x 18 yrs. -- P13,479.37); Remedios Goyena -- P22,511.25 (P150 x 15 x 13 yrs. -- P6,738.75); Oscar Emnace -- P17,970 (P149.75 x 15 x 8 yrs. less the amount he received if any); Gertrudes Guiao P59,670 (P153 x 15 x 29 yrs. -- P6,885); Lolita Musne -- P53,394.36 (P154,65 x 15 x 29 yrs. -- P13,878.39); Alberto Parama -- P12,161.25 (P140 x 15 x 9 yrs. -- P6,738.75); Luningning Peralta -- P48,448.50 (P153.65 x 15 x 26 yrs. -- P11,475); Amelia Ranches -- P58,102.04 (P157.60 x 15 x 34 yrs. -- P22,273.96); Ernesto San Juan -- P11,261.25 (P149.75 x 15 x 7 yrs. -- P4,462.50); Liwayway San Juan -- P67,655.08) P160.35 x 15 x 39 yrs. -- P26,149.67); Ricardo Triumfante --P8,986.00 (P149.75 x 15 x 7 yrs. -- P6,738.75); Lorena Torcido -- P11,231.25 (P149.75 x 15 x 8 yrs. -- P6,738.75); Priscilla Villasin -- P64,162.50 (P147.50 x 15 x 29 yrs. less any amount she received from the respondent; Luzviminda Villegas -- P13,478 (P149.75 x 15 x 8 yrs. -- P4,492.00) Rosile Verzosa -- P13,387.50 (P149. x 15 x 8 yrs. -- P4,492.50) Charito Isidro -- P53,997 (P155.85 x 15 x 32 yrs. -- P20,811); Peter Labayne -- P17,130.36 (P150.45 x 15 x 7 yrs. -- P15,132.38); Shirley Lubat -- P13,773 (P149.75 x 15 x 8 yrs. -- P4,196.22); or a total sum of P2,811,724.33, plus ten (10%) percent attorney’s fee, or a grand total sum of P3,092,896.76.
“As xxx data o[n] their salary rates were not indicated on record, the claims of complainants Milagros Calubayan, Carmencita Cruz, Armando Goyena, Erlinda Nakpil, Pacita Narca, Virgilio Punzalan, Roberto Reduta, Maritess Medina, Nestor Medina, and Dominga Siababa can not be ascertained, and therefore, the same should be dismissed but without prejudice.”
“With respect to the other claims of the above Luris group including their charge of illegal dismissal, they are hereby dismissed for lack of merit.”[4]
“These refer to the consolidated cases for payment of separation pay lodged by [the] Lubat Group, and for illegal dismissal and underpayment of separation pay by [the] Luris group, with prayers for damages and attorney’s fees against the above respondents.To state the facts simply, there are two groups of employees, namely, the Lubat group and the Luris group. The Lubat group is composed of petitioner’s seasonal employees who were not rehired for the 1994 tobacco season. At the start of that season, they were merely informed that their employment had been terminated at the end of the 1993 season. They claimed that petitioner’s refusal to allow them to report for work without mention of any just or authorized cause constituted illegal dismissal. In their Complaint, they prayed for separation pay, back wages, attorney’s fees and moral damages.
“The record reveals that all complainants in both cases were former workers of respondent with their respective periods of employment and latest wages stated in the parties’ pleadings/[a]nnexes.
“On August 1, 1994, due to supposed serious financial reverses and losses suffered by respondent and its desire to prevent further losses, a notice of permanent closure of its red[r]ying operations at Balintawak, Quezon City and transfer [of] the same to Candon, Ilocos Sur was served to the DOLE.
“On August 3, 1994, complainants were also notified of the said decision to close and transfer.
“On August 16, 1994, their separation benefits were given to them but allegedly [based on] wrong computation when management did not consider 3/4 of their length of service as claimed by complainants (Luris group).
“While the Lubat group were not granted xxx separation pay as their previous seasonal service [was] not continuous, and as of August, 1994, they were not employed ther[e]with as declared by respondent.
“Based on the complaint and from the above facts, the issues are as follows:
1) Whether or not the Lubat Group are entitled to the payment of separation pay[;]
2) Whether or not the Luris Group can be legally awarded separation pay differentials[,] or whether or not the computation adopted by respondent in granting complainants’ separation pay is erroneous[;] and
3) Whether or not the Luris group can be properly allowed backwages and damages by reason of their alleged illegal dismissal, and for both groups, attorney’s fees[.]
“In [its] position paper respondent maintains that [the] Lubat group are not entitled to separation pay for the reason that they were not among those separated or could not have been separated from employment on August 3, 1994 due to such closure and transfer as they were not employed or did not report for work at the plant for the 1994 tobacco season as shown by [the] company’s records.
“As to the Luris group, although being questioned by this group, respondent considers the following formula in determining the length of service in years as basis for computing the separation pay of this group to be fair and reasonable and xxx supported by Article 283 of the Labor Code, as amended, such as the total number of working days actually worked over total number of working days in a year (303 days), multipl[ied] by the daily rate and further multipl[ied] by 15 days.
“Respondent explains that this is so because complainants’ nature of work is seasonal as they are employed every year only during the tobacco season which may fall within the months of February to November but actually work for a period of less [than] six (6) months for each season. The law qualifies tenure for purposes of separation benefits as based on ‘service’ and not ‘employment’.
“With these considerations, respondent claims that complainants’ relief for separation pay differentials must fail.
“On the charge of illegal dismissal by the Luris group, respondent asserts that complainants were separated from employment for [a] just cause that is the closure of its REDRYING operations at the Balintawak plant and the transfer of the same to Candon, Ilocos Sur which was authorized by the law and the parties’ CBA.
“The decision of management to close and transfer its tobacco processing and REDRYING operations was based on the fact that it had consistently incurred a net loss from these operations, its principal line of business, although its audited financial statement showed a net profit after tax from 1990 to 1993 based on over-all operations.
“Moreover, respondent points out that as the Luris group and the DOLE were served a written notice at least one (1) month before the intended date of closure effective on Sept. 15, 1994, the due process requirement was met.
“Viewed from the above, respondent cannot prosper.
“On the other hand, the Lubat group declare that originally there were seven complainants but eight were added.
“Being seasonal workers, they were hired by respondent to operate the Balintawak factory from January to September, averaging 6 to 8 months annually.
“As alleged by them, when they reported for their annual shift, respondent refused to extend them assignment for no apparent reason up to the end of the season in August, 1994. When they ask[ed] for separation pay, respondent told them that because they were not in the payroll for 1994, no such benefit would be paid to them.
“It is their contention that complainants are entitled to separation pay [of] at least one-half month pay for every year of service[,] as they were illegally dismissed[,] to be computed each season ranging from 6 to 8 months [which] should be considered as one year, contrary to the respondent’s basis which is the total no. of days they actually rendered service.
“To back up the above, complainants cite a case wherein the Supreme Court held that seasonal employees are not strictly speaking, separated from the service but merely considered on leave of absence without pay until reemployed. Their employment relationship is never severed but only suspended.
“For the prosecution of this case, complainants were forced to hire the services of counsel for which they claim xxx attorney’s fees.
“As far as the Luris group are concerned, they state that they were factory workers of respondents numbering one hundred (100) whose names, periods of employment and latest salaries are contained in the lists attached to their position paper.
“As claimed by this group, on August 3, 1994, respondents told them that their services were already terminated and all of them dismissed as the factory would be transferred to Candon, Ilocos Sur.
“Letter-notices dated August 3, 1994, (Annexes F, F-1 and F-2 to their position paper) showing that the date when they were notified of the closure was the same date they were instantly dismissed although it is admitted in the notice that their decision to transfer was made as early as March 5, 1994.
“Furthermore, complainants question the basis of the computations of their separation benefits which should include the period when there [was] no work to be done in a year. [B]ecause of necessity, they received the short amount as their separation pay by way of voucher but ‘under protest’ as shown in Annexes C-C-1 to C-5 to their pleading.
“With the sudden transfer of the machiner[y] of respondents without giving them advance notice leaving them with insufficient separation pay, complainants experienced serious anxiety and wounded feelings for which they p[r]ay for damages including attorney’s fees.
“Consequently, complainants also pray for backwages, allowance and other benefits from the date of their illegal dismissal up to the final disposition of the case.
“Furthermore, complainants maintain that since the company is being transferred to the province, the former’s separation may be considered compulsory retirement under R.A. 7641, providing for one-half month pay benefit for every year of service, and under Section 3, Rule V, Book III of the Labor Code, as amended for which they also demand payment thereof.
“Complainants also submitted the computation of their differential in separation pay (addendum and supplemental addendum to their position paper) Annex ‘G’, ‘G-1’ to ‘G-4’.”
In their Complaint, they claimed that the computation should be based not on the above mathematical equation, but on the actual number of years served. In addition, they contended that they were illegally dismissed, and thus they prayed for back wages.
total no. of days actually worked
____________________________total no. of working days in one year
x daily rate x 15 days
In the Court’s view, three issues must be tackled: First, did petitioner prove “serious business losses,” its justification for the nonpayment of separation pay? Second, was the dismissal of the employees valid? Third, how should the separation pay of illegally dismissed seasonal employees be computed?“A
SUBSTANTIAL AND UNDISPUTED EVIDENCE ON RECORD PROVES THAT THE CLOSURE OF PETITIONER’S OPERATION WAS DUE TO SERIOUS BUSINESS LOSSES AND FINANCIAL REVERSES. PRIVATE RESPONDENTS ARE NOT LEGALLY ENTITLED TO SEPARATION PAY. THE PAYMENT OF SEPARATION PAY TO THE LURIS GROUP IS BASED ONLY ON PETITIONER’S LIBERALITY.B.
EVEN ASSUMING THAT PETITIONER’S CLOSURE WAS NOT DUE TO SERIOUS BUSINESS LOSSES AND FINANCIAL REVERSES, THE LUBAT GROUP WORKERS ARE STILL NOT ENTITLED [TO] SEPARATION PAY. THE LUBAT GROUP WERE NOT EMPLOYED WITH PETITIONER AT THE TIME OF PETITIONER’S CLOSURE.C
EVEN ASSUMING THAT THE LURIS GROUP IS ENTITLED TO SEPARATION PAY, PETITIONER MUST NOT AND CANNOT BE LEGALLY COMPELLED TO PAY MORE THAN THE AMOUNTS ALREADY GIVEN TO THE [SAID] LURIS GROUP.”[7]
“ART. 283. Closure of establishment and reduction of personnel.-- The employer may also terminate the employment of any employee due to the installation of labor saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year.”It must be noted that the present case involves the closure of merely a unit or division, not the whole business of an otherwise viable enterprise. Although Article 283 uses the phrase “closure or cessation of operation of an establishment or undertaking,” this Court previously ruled in Coca-Cola Bottlers (Phils.), Inc. v. NLRC that said statutory provision applies in cases of both complete and partial cessation of the business operation:
“x x x Ordinarily, the closing of a warehouse facility and the termination of the services of employees there assigned is a matter that is left to the determination of the employer in the good faith exercise of its management prerogatives. The applicable law in such a case is Article 283 of the Labor Code which permits ‘closure or cessation of operation of an establishment or undertaking not due to serious business losses or financial reverses,’ which, in our reading, includes both the complete cessation of operations and the cessation of only part of a company’s business.”[8]In Somerville Stainless Steel Corporation v. NLRC,[9] the Court held that “[t]he ‘loss’ referred to in Article 283 cannot be just any kind or amount of loss; otherwise, a company could easily feign excuses to suit its whims and prejudices or to rid itself of unwanted employees. To guard against this possibility of abuse, the Court laid down the following standard which a company must meet to justify retrenchment:
‘x x x Firstly, the losses expected should be substantial and not merely de minimis in extent. If the loss purportedly sought to be forestalled by retrenchment is clearly shown to be insubstantial and inconsequential in character, the bonafide nature of the retrenchment would appear to be seriously in question. Secondly, the substantial loss apprehended must be reasonably imminent, as such imminence can be perceived objectively and in good faith by the employer. There should, in other words, be a certain degree of urgency for the retrenchment, which is after all a drastic recourse with serious consequences for the livelihood of the employees retired or otherwise laid off. Because of the consequential nature of retrenchment, it must, thirdly, be reasonably necessary and likely to effectively prevent the expected losses. The employer should have taken other measures prior or parallel to retrenchment to forestall losses, i.e., cut other costs other than labor costs. An employer who, for instance, lays off substantial numbers of workers while continuing to dispense fat executive bonuses and perquisites or so-called ‘golden parachutes,’ can scarcely claim to be retrenching in good faith to avoid losses. To impart operational meaning to the constitutional policy of providing ‘full protection’ to labor, the employer’s prerogative to bring down labor costs by retrenching must be exercised essentially as a measure of last resort, after less drastic means -- e.g., reduction of both management and rank-and-file- bonuses and salaries, going on reduced time, improving manufacturing efficiencies, trimming of marketing and advertising costs, etc. -- have been tried and found wanting.To repeat, petitioner did not actually close its entire business. It merely transferred or relocated its tobacco processing and redrying operations. Moreover, it was also engaged in, among others, corn and rental operations, which were unaffected by the closure of its Balintawak plant.
‘Lastly, but certainly not the least important, alleged losses if already realized, and the expected imminent losses sought to be forestalled, must be proved by sufficient and convincing evidence. The reason for requiring this quantum of proof is readily apparent: any less exacting standard of proof would render too easy the abuse of this ground for termination of services of employees. x x x’”
“The nature of their relationship x x x is such that during off season they are temporarily laid off but during summer season they are re-employed, or when their services may be needed. They are not strictly speaking separated from the service but are merely considered as on leave of absence without pay until they are re-employed.”The above doctrine was echoed by this Court in Industrial-Commercial-Agricultural Workers’ Organization (ICAWO) v. CIR[14] and Visayan Stevedore Transportation Company v. CIR.[15]
“While under prevailing jurisprudence, Canete may be considered as in regular employment even during those years when she was merely a seasonal worker, that legal conclusion will hold true only in cases involving the determination of an employer-employee relationship or security of tenure.”Again in Gaco v. NLRC, petitioner therein was a seasonal worker employed and repeatedly rehired in a business enterprise similar to that of petitioner herein. Finding that he was in regular employment and thus entitled to separation pay for having been constructively dismissed, the Court stated:
“It may appear that the work in private respondent Orient Leaf Tobacco Corporation is seasonal, however, the records reveal that petitioner Zenaida Gaco was repeatedly re-hired, sufficiently evidencing the necessity and indispensability of her services to the former’s business or trade. Furthermore, she has been employed since 1974 up to the end of the season in 1989. Owing to her length of service, she became a regular employee, by operation of law, one year after she was employed.”[18]From the foregoing, it follows that the employer-employee relationship between herein petitioner and members of the Lubat group was not terminated at the end of the 1993 season. From the end of the 1993 season until the beginning of the 1994 season, they were considered only on leave but nevertheless still in the employ of petitioner.
Agreeing with the labor arbiter and the NLRC, private respondents, on the other hand, claim that their separation pay should be based on the actual number of years they have been in petitioner’s service. They cite the law on service incentive leave,[23] the implementing rules regarding the 13th month pay,[24] Manila Hotel v. CIR,[25] and Chartered Bank v. Ople[26] which allegedly stated that “each season in a year should be construed as one year of service.”[27]
“Total No. of Days Actually Worked
____________________________Total No. Of Working Days In One Year
X Daily Rate X 15 days”[22]