369 Phil. 443
PANGANIBAN, J.:
"WHEREFORE, judgment is hereby rendered dismissing the above-mentioned complaint for lack of merit."Also assailed is the August 4, 1995 Resolution[5] of the NLRC, which denied the Motion for Reconsideration.
"Complainants numbering 43 (p. 176, Records) are deaf-mutes who were hired on various periods from 1988 to 1993 by respondent Far East Bank and Trust Co. as Money Sorters and Counters through a uniformly worded agreement called `Employment Contract for Handicapped Workers'. (pp. 68 & 69, Records) The full text of said agreement is quoted below:Petitioners specified when each of them was hired and dismissed, viz:[7]`EMPLOYMENT CONTRACT FOR HANDICAPPED WORKERS This Contract, entered into by and between:"In 1988, two (2) deaf-mutes were hired under this Agreement; in 1989 another two (2); in 1990, nineteen (19); in 1991 six (6); in 1992, six (6) and in 1993, twenty-one (21). Their employment[s] were renewed every six months such that by the time this case arose, there were fifty-six (56) deaf-mutes who were employed by respondent under the said employment agreement. The last one was Thelma Malindoy who was employed in 1992 and whose contract expired on July 1993.
FAR EAST BANK AND TRUST COMPANY, a universal banking corporation duly organized and existing under and by virtue of the laws of the Philippines, with business address at FEBTC Building, Muralla, Intramuros, Manila, represented herein by its Assistant Vice President, MR. FLORENDO G. MARANAN, (hereinafter referred to as the `BANK');
- and -
________________, ________________ years old, of legal age, _____________, and residing at __________________ (hereinafter referred to as the (`EMPLOYEE').
WITNESSETH: That
WHEREAS, the BANK, cognizant of its social responsibility, realizes that there is a need to provide disabled and handicapped persons gainful employment and opportunities to realize their potentials, uplift their socio-economic well being and welfare and make them productive, self-reliant and useful citizens to enable them to fully integrate in the mainstream of society;
WHEREAS, there are certain positions in the BANK which may be filled-up by disabled and handicapped persons, particularly deaf-mutes, and the BANK ha[s] been approached by some civic-minded citizens and authorized government agencies [regarding] the possibility of hiring handicapped workers for these positions;
WHEREAS, the EMPLOYEE is one of those handicapped workers who [were] recommended for possible employment with the BANK;
NOW, THEREFORE, for and in consideration of the foregoing premises and in compliance with Article 80 of the Labor Code of the Philippines as amended, the BANK and the EMPLOYEE have entered into this Employment Contract as follows:IN WITNESS WHEREOF, the parties, have hereunto affixed their signature[s] this ____ day of _________________, ____________ at Intramuros, Manila, Philippines.'
- The BANK agrees to employ and train the EMPLOYEE, and the EMPLOYEE agrees to diligently and faithfully work with the BANK, as Money Sorter and Counter.
- The EMPLOYEE shall perform among others, the following duties and responsibilities:
- Sort out bills according to color;
- Count each denomination per hundred, either manually or with the aid of a counting machine;
- Wrap and label bills per hundred;
- Put the wrapped bills into bundles; and
- Submit bundled bills to the bank teller for verification.
- The EMPLOYEE shall undergo a training period of one (1) month, after which the BANK shall determine whether or not he/she should be allowed to finish the remaining term of this Contract.
- The EMPLOYEE shall be entitled to an initial compensation of P118.00 per day, subject to adjustment in the sole judgment of the BANK, payable every 15th and end of the month.
- The regular work schedule of the EMPLOYEE shall be five (5) days per week, from Mondays thru Fridays, at eight (8) hours a day. The EMPLOYEE may be required to perform overtime work as circumstance may warrant, for which overtime work he/she [shall] be paid an additional compensation of 125% of his daily rate if performed during ordinary days and 130% if performed during Saturday or [a] rest day.
- The EMPLOYEE shall likewise be entitled to the following benefits:
- Proportionate 13th month pay based on his basic daily wage.
- Five (5) days incentive leave.
- SSS premium payment.
- The EMPLOYEE binds himself/herself to abide [by] and comply with all the BANK Rules and Regulations and Policies, and to conduct himself/herself in a manner expected of all employees of the BANK.
- The EMPLOYEE acknowledges the fact that he/she had been employed under a special employment program of the BANK, for which reason the standard hiring requirements of the BANK were not applied in his/her case. Consequently, the EMPLOYEE acknowledges and accepts the fact that the terms and conditions of the employment generally observed by the BANK with respect to the BANK's regular employee are not applicable to the EMPLOYEE, and that therefore, the terms and conditions of the EMPLOYEE's employment with the BANK shall be governed solely and exclusively by this Contract and by the applicable rules and regulations that the Department of Labor and Employment may issue in connection with the employment of disabled and handicapped workers. More specifically, the EMPLOYEE hereby acknowledges that the provisions of Book Six of the Labor Code of the Philippines as amended, particularly on regulation of employment and separation pay are not applicable to him/her.
- The Employment Contract shall be for a period of six (6) months or from ____ to ____ unless earlier terminated by the BANK for any just or reasonable cause. Any continuation or extension of this Contract shall be in writing and therefore this Contract will automatically expire at the end of its terms unless renewed in writing by the BANK.
x x x x x x x x x
"Disclaiming that complainants were regular employees, respondent Far East Bank and Trust Company maintained that complainants who are a special class of workers - the hearing impaired employees were hired temporarily under [a] special employment arrangement which was a result of overtures made by some civic and political personalities to the respondent Bank; that complainant[s] were hired due to `pakiusap' which must be considered in the light of the context of the respondent Bank's corporate philosophy as well as its career and working environment which is to maintain and strengthen a corps of professionals trained and qualified officers and regular employees who are baccalaureate degree holders from excellent schools which is an unbending policy in the hiring of regular employees; that in addition to this, training continues so that the regular employee grows in the corporate ladder; that the idea of hiring handicapped workers was acceptable to them only on a special arrangement basis; that it adopted the special program to help tide over a group of handicapped workers such as deaf-mutes like the complainants who could do manual work for the respondent Bank; that the task of counting and sorting of bills which was being performed by tellers could be assigned to deaf-mutes; that the counting and sorting of money are tellering works which were always logically and naturally part and parcel of the tellers' normal functions; that from the beginning there have been no separate items in the respondent Bank plantilla for sorters or counters; that the tellers themselves already did the sorting and counting chore as a regular feature and integral part of their duties (p. 97, Records); that through the `pakiusap' of Arturo Borjal, the tellers were relieved of this task of counting and sorting bills in favor of deaf-mutes without creating new positions as there is no position either in the respondent or in any other bank in the Philippines which deals with purely counting and sorting of bills in banking operations."
As earlier noted, the labor arbiter and, on appeal, the NLRC ruled against herein petitioners. Hence, this recourse to this Court.[9]
"NAME OF PETITIONER WORKPLACE Date Hired Date Dismissed1. MARITES BERNARDO Intramuros 12 NOV 90 17 NOV 932. ELVIRA GO DIAMANTE Intramuros 24 JAN 90 11 JAN 943. REBECCA E. DAVID Intramuros 16 APR 90 23 OCT 934. DAVID P. PASCUAL Bel-Air 15 OCT 88 21 NOV 945. RAQUEL ESTILLER Intramuros 2 JUL 92 4 JAN 946. ALBERT HALLARE West 4 JAN 91 9 JAN 947. EDMUND M. CORTEZ Bel-Air 15 JAN 91 3 DEC 938. JOSELITO O. AGDON Intramuros 5 NOV 90 17 NOV 939. GEORGE P. LIGUTAN, JR. Intramuros 6 SEPT 89 19 JAN 9410. CELSO M. YAZAR Intramuros 8 FEB 93 8 AUG 9311. ALEX G. CORPUZ Intramuros 15 FEB 93 15 AUG 9312. RONALD M. DELFIN Intramuros 22 FEB 93 22 AUG 9313. ROWENA M. TABAQUERO Intramuros 22 FEB 93 22 AUG 9314. CORAZON C. DELOS REYES Intramuros 8 FEB 93 8 AUG 9315. ROBERT G. NOORA Intramuros 15 FEB 93 15 AUG 9316. MILAGROS O. LEQUIGAN Intramuros 1 FEB 93 1 AUG 9317. ADRIANA F. TATLONGHARI Intramuros 22 JAN 93 22 JUL 9318. IKE CABANDUCOS Intramuros 24 FEB 93 24 AUG 9319. COCOY NOBELLO Intramuros 22 FEB 93 22 AUG 9320. DORENDA CATIMBUHAN Intramuros 15 FEB 93 15 AUG 9321. ROBERT MARCELO West 31 JUL 93[8] 1 AUG 9322. LILIBETH Q. MARMOLEJO West 15 JUN 90 21 NOV 9323. JOSE E. SALES West 6 AUG 92 12 OCT 9324. ISABEL MAMAUAG West 8 MAY 92 10 NOV 9325. VIOLETA G. MONTES Intramuros 2 FEB 90 15 JAN 9426. ALBINO TECSON Intramuros 7 NOV 91 10 NOV 9327. MELODY V. GRUELA West 28 OCT 91 3 NOV 9328. BERNADETH D. AGERO West 19 DEC 90 27 DEC 9329. CYNTHIA DE VERA Bel-Air 26 JUN 90 3 DEC 9330. LANI R. CORTEZ Bel-Air 15 OCT 88 10 DEC 9331. MA. ISABEL B. CONCEPCION West 6 SEPT 90 6 FEB 9432. DINDO VALERIO Intramuros 30 MAY 93 30 NOV 9333. ZENAIDA MATA Intramuros 10 FEB 93 10 AUG 9334. ARIEL DEL PILAR Intramuros 24 FEB 93 24 AUG 9335. MARGARET CECILIA CANOZA Intramuros 27 JUL 90 4 FEB 9436. THELMA SEBASTIAN Intramuros 12 NOV 90 17 NOV 9337. MA. JEANETTE CERVANTES West 6 JUN 92 7 DEC 9338. JEANNIE RAMIL Intramuros 23 APR 90 12 OCT 9339. ROZAIDA PASCUAL Bel-Air 20 APR 89 29 OCT 9340. PINKY BALOLOA West 3 JUN 91 2 DEC 9341. ELIZABETH VENTURA West 12 MAR 90 FEB 94 [SIC]42. GRACE S. PARDO West 4 APR 90 13 MAR 9443. RICO TIMOSA Intramuros 28 APR 93 28 OCT 93"
"We agree that Art. 280 is not controlling herein. We give due credence to the conclusion that complainants were hired as an accommodation to [the] recommendation of civic oriented personalities whose employment[s] were covered by xxx Employment Contract[s] with special provisions on duration of contract as specified under Art. 80. Hence, as correctly held by the Labor Arbiter a quo, the terms of the contract shall be the law between the parties."[10]The NLRC also declared that the Magna Carta for Disabled Persons was not applicable, "considering the prevailing circumstances/milieu of the case."
"I. The Honorable Commission committed grave abuse of discretion in holding that the petitioners - money sorters and counters working in a bank - were not regular employees.In the main, the Court will resolve whether petitioners have become regular employees.
"II. The Honorable Commission committed grave abuse of discretion in holding that the employment contracts signed and renewed by the petitioners - which provide for a period of six (6) months - were valid.
"III. The Honorable Commission committed grave abuse of discretion in not applying the provisions of the Magna Carta for the Disabled (Republic Act No. 7277), on proscription against discrimination against disabled persons."[11]
"ART. 80. Employment agreement. - Any employer who employs handicapped workers shall enter into an employment agreement with them, which agreement shall include:The stipulations in the employment contracts indubitably conform with the aforecited provision. Succeeding events and the enactment of RA No. 7277 (the Magna Carta for Disabled Persons),[13] however, justify the application of Article 280 of the Labor Code.
(a) The names and addresses of the handicapped workers to be employed;
(b) The rate to be paid the handicapped workers which shall be not less than seventy five (75%) per cent of the applicable legal minimum wage;
(c) The duration of employment period; and
(d) The work to be performed by handicapped workers.
The employment agreement shall be subject to inspection by the Secretary of Labor or his duly authorized representatives."
"Section 5. Equal Opportunity for Employment.--No disabled person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied person."The fact that the employees were qualified disabled persons necessarily removes the employment contracts from the ambit of Article 80. Since the Magna Carta accords them the rights of qualified able-bodied persons, they are thus covered by Article 280 of the Labor Code, which 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.The test of whether an employee is regular was laid down in De Leon v. NLRC,[14] in which this Court held:
"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 as regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists."
"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 the 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 one 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."Without a doubt, the task of counting and sorting bills is necessary and desirable to the business of respondent bank. With the exception of sixteen of them, petitioners performed these tasks for more than six months. Thus, the following twenty-seven petitioners should be deemed regular employees: Marites Bernardo, Elvira Go Diamante, Rebecca E. David, David P. Pascual, Raquel Estiller, Albert Hallare, Edmund M. Cortez, Joselito O. Agdon, George P. Ligutan Jr., Lilibeth Q. Marmolejo, Jose E. Sales, Isabel Mamauag, Violeta G. Montes, Albino Tecson, Melody V. Gruela, Bernadeth D. Agero, Cynthia de Vera, Lani R. Cortez, Ma. Isabel B. Concepcion, Margaret Cecilia Canoza, Thelma Sebastian, Ma. Jeanette Cervantes, Jeannie Ramil, Rozaida Pascual, Pinky Baloloa, Elizabeth Ventura and Grace S. Pardo.
"Article 280 was emplaced in our statute books to prevent the circumvention of the employee's right to be secure in his tenure by indiscriminately and completely ruling out all written and oral agreements inconsistent with the concept of regular employment defined therein. Where an employee has been engaged to perform activities which are usually necessary or desirable in the usual business of the employer, such employee is deemed a regular employee and is entitled to security of tenure notwithstanding the contrary provisions of his contract of employment.In rendering this Decision, the Court emphasizes not only the constitutional bias in favor of the working class, but also the concern of the State for the plight of the disabled. The noble objectives of Magna Carta for Disabled Persons are not based merely on charity or accommodation, but on justice and the equal treatment of qualified persons, disabled or not. In the present case, the handicap of petitioners (deaf-mutes) is not a hindrance to their work. The eloquent proof of this statement is the repeated renewal of their employment contracts. Why then should they be dismissed, simply because they are physically impaired? The Court believes, that, after showing their fitness for the work assigned to them, they should be treated and granted the same rights like any other regular employees."x x x x x x x x x "At this juncture, the leading case of Brent School, Inc. v. Zamora proves instructive. As reaffirmed in subsequent cases, this Court has upheld the legality of fixed-term employment. It ruled that the decisive determinant in `term employment' should not be the activities that the employee is called upon to perform but the day certain agreed upon the parties for the commencement and termination of their employment relationship. But this Court went on to say that where from the circumstances it is apparent that the periods have been imposed to preclude acquisition of tenurial security by the employee, they should be struck down or disregarded as contrary to public policy and morals."