556 Phil. 317
YNARES-SANTIAGO, J.:
September 10, 1998
MR. ROGELIO J. REYES
#2 San Nicolas Street
Skyline Village, Catalunan Grande
Davao City 8000
Dear Mr. Reyes,
This is in reply to your letter dated August 10, 1998, a copy of which was received by the undersigned only on September 2, 1998.
We wish to advise you that per our computation, your separation pay amounts to:
Retirement benefit (computed at 50% pay for every year of service, a fraction of at least 6 months considered as 1 year) | Php 109,192.20 |
VL Cash Conversion (144 hours) | 7,511.31 |
SL Cash Conversion (120 hours) | 3,129.72 |
Financial Assistance (as approved by LY Gokongwei in Memo dated November 4, 1997) | 30,000.00 |
Final Accountability/Accounting | |
Tax Refund 16,699.35 | |
13th Month Pay 10,919.22 | |
Withheld Commission | |
November 1997 30,000.00 | |
Salary Overpaid ( 834.59) | |
Lost Pager ( 6,295.00) | 50,488.98 |
TOTAL | Php 200,322.21 |
This computation is pursuant to Company policy and practice. We are unable to agree with your suggested basis of computation as they are without legal basis. Also, we regret that we cannot pay you the Sales Commission and Tax Refund ahead of the other payments.Insisting that his retirement benefits and 13th month pay must be based on the average monthly salary of P42,766.19, which consists of P10,919.22 basic salary and P31,846.97 average monthly commission, petitioner refused to accept the check[5] issued by private respondent in the amount of P200,322.21.[6] Instead, he filed a complaint before the arbitration branch of the NLRC for retirement benefits, 13th month pay, tax refund, earned sick and vacation leaves, financial assistance, service incentive leave pay, damages and attorney's fees.[7]
Kindly get in touch with us at 671-7098 if you have any questions.
Very truly yours,
(SGD) ATTY. MANUEL R. DEL ROSARIO
Group Human Resources Director
cc: Mr. Lance Gokongwei
Atty. Danny Bolos
Mr. Al Bacleon[4]
WHEREFORE, JUDGMENT IS HEREBY RENDERED ordering respondent Universal Robina Corporation-Grocery Division to pay complainant the net amount of PESOS: NINE HUNDRED ELEVEN THOUSAND SIX HUNDRED NINETY NINE AND 92/100 (P911,699.92) representing his retirement benefits, 13th month pay for 1997, 13th month pay differential for 1996 and 1995, VL and SL Cash conversion, withheld commission for 1997, financial assistance and tax refund plus attorney's fees equivalent to 5% of the total award.On appeal, the NLRC modified the decision of the Labor Arbiter by excluding the overriding commission in the computation of the retirement benefits and 13th month pay and deleted the award of attorney's fees, thus:
All other claims are dismissed for lack of basis.
SO ORDERED.[8]
WHEREFORE, judgment is rendered:Both parties moved for reconsideration of the NLRC decision but were denied by the NLRC for lack of merit. Only petitioner filed a petition for certiorari before the Court of Appeals but was dismissed for lack of merit.SO ORDERED.[9]
- Affirming with modification the decision appealed from insofar as the award of retirement pay and 13th month pay to the effect that same be computed based on the P10,919.22 basic salary to the exclusion of the overriding commissions of complainant.
- Affirming in toto the award of VL cash conversion, SL cash conversion, tax refund, withheld commission and financial assistance.
- Deleting the award of attorney's fees for lack of merit.
WHETHER OR NOT THE AVERAGE MONTHLY SALES COMMISSION OF THIRTY ONE THOUSAND EIGHT HUNDRED FORTY SIX AND 97/100 (Php 31,846.97) SHOULD BE INCLUDED IN THE COMPUTATION OF HIS RETIREMENT BENEFITS AND 13TH MONTH PAY.[10]Petitioner contends that the commissions form part of the basic salary, citing the case of Philippine Duplicators, Inc. v. National Labor Relations Commission,[11] wherein the Court held that commissions earned by salesmen form part of their basic salary.[12]
Art. 287. Retirement. - Any employee may be retired upon reaching the retirement age established in the collective bargaining agreement or other applicable employment contract.And, Section 5 of Rule II of the Rules Implementing the New Retirement Law, provides:
x x x x
In the absence of a retirement plan or agreement providing for retirement benefits of employees in the establishment, an employee upon reaching the age of sixty (60) years or more, but not beyond sixty five (65) years which is hereby declared the compulsory retirement age, who has served at least five (5) years in the said establishment, may retire and shall be entitled to retirement pay equivalent to at least one half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year.
Unless the parties provide for broader inclusions, the term one half (1/2) month salary shall mean fifteen (15) days plus one twelfth (1/12) of the 13th month pay and the cash equivalent of not more than five (5) days of service incentive leaves.
x x x xThe article provides for two types of retirement: (a) compulsory and (b) optional. The first takes place at age 65, while the second is primarily determined by the collective bargaining agreement or other employment contract or employer's retirement plan. In the absence of any provision on optional retirement in a collective bargaining agreement, other employment contract, or employer's retirement plan, an employee may optionally retire upon reaching the age of 60 years or more, but not beyond 65 years, provided he has served at least five years in the establishment concerned.
Section 5. Retirement Benefits.
5.1 In the absence of an applicable agreement or retirement plan, an employee who retires pursuant to the Act shall be entitled to retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year.
5.2 Components of One-half (1/2) Month Salary. - For the purpose of determining the minimum retirement pay due an employee under this Rule, the term "one-half-month salary" shall include all the following:
(a) Fifteen (15) days salary of the employee based on his latest salary rate. As used herein, the term "salary" includes all remunerations paid by an employer to his employees for services rendered during normal working days and hours, whether such payments are fixed or ascertained on a time, task, piece or commission basis, or other method of calculating the same, and includes the fair and reasonable value, as determined by the Secretary of Labor and Employment, of food, lodging, or other facilities customarily furnished by the employer to his employees. The term does not include cost of living allowance, profit-sharing payments and other monetary benefits which are not considered as part of or integrated into the regular salary of the employees.
(b) The cash equivalent of not more than five (5) days of service incentive leave.
(c) One-twelfth of the 13 month pay due the employee.
(d) All other benefits that the employer and employee may agree upon that should be included in the computation of the employee's retirement pay. (Emphasis supplied)
1) 15 days salary based on the latest salary rate;But, it shall not include the following:
2) cash equivalent of 5 days of service incentive leave (or vacation leave);
3) 1/12 of the 13th month pay;
4) other benefits as may be agreed upon by employer and employee for inclusion.
1) cost of living allowance;Petitioner filed for optional retirement upon reaching the age of 60. However, the basis in computing his retirement benefits is his latest salary rate of P10,919.22 as the commissions he received are in the form of profit-sharing payments specifically excluded by the foregoing rules.
2) profit-sharing payments; and
3) other monetary benefits which are not considered as part of or integrated into the regular salary of the employees
In fine, Boie-Takeda and Philippine Duplicator particularize the types of earnings and remuneration that should or should not properly be included or integrated in the basic salary and which questions are to be resolved or determined on a case-to-case basis, in the light of the specific and detailed facts of each case. In other words, when these earnings and remuneration are closely akin to fringe benefits, overtime pay or profit-sharing statements, they are properly excluded in computing retirement pay. However, sales commissions which are effectively an integral portion of the basic salary structure of an employee, shall be included in determining the retirement pay.Aside from the fact that as unit manager petitioner did not enter into actual sale transactions, but merely supervised the salesmen under his control, the disputed commissions were not regularly received by him. Only when the salesmen were able to collect from the sale transactions can petitioner receive the commissions. Conversely, if no collections were made by the salesmen, then petitioner would receive no commissions at all.[24] In fine, the commissions which petitioner received were not part of his salary structure but were profit-sharing payments and had no clear, direct or necessary relation to the amount of work he actually performed. The collection made by the salesmen from the sale transactions was the profit of private respondent from which petitioner had a share in the form of a commission.
At bar, petitioner Rogelio J. Reyes was receiving a monthly sum of P10,919.22 as salary corresponding to his position as Unit Manager. Thus, as correctly ruled by public respondent NLRC, the "overriding commissions" paid to him by Universal Robina Corp. could not have been "sales commissions" in the same sense that Philippine Duplicators paid its salesmen sales commissions. Unit Managers are not salesmen; they do not effect any sale of article at all. Therefore, any commission which they receive is certainly not the basic salary which measures the standard or amount of work of complainant as Unit Manager. Accordingly, the additional payments made to petitioner were not in fact sales commissions but rather partook of the nature of profit-sharing business. Certainly, from the foregoing, the doctrine in Boie-Takeda Chemicals and Philippine Fuji Xerox Corporation, which pronounced that commissions are additional pay that does not form part of the basic salary, applies to the present case.[23]
Under Presidential Decree 851 and its implementing rules, the basic salary of an employee is used as the basis in the determination of his 13th-month pay. Any compensations or remunerations which are deemed not part of the basic pay is excluded as basis in the computation of the mandatory bonus.Finally, considering that the computations, as well as the propriety of the awards, are unquestionably factual issues that have been discussed and ruled upon by NLRC and affirmed by the Court of Appeals, we cannot depart from such findings. Findings of fact of administrative agencies and quasi-judicial bodies, which have acquired expertise because their jurisdiction is confined to specific matters, are generally accorded not only respect, but finality when affirmed by the Court of Appeals. Such findings deserve full respect and, without justifiable reason, ought not to be altered, modified or reversed.[26]
Under the Rules and Regulations Implementing Presidential Decree 851, the following compensations are deemed not part of the basic salary:
a) Cost-of-living allowances granted pursuant to Presidential Decree 525 and Letter of Instruction No. 174;
b) Profit sharing payments;
c) All allowances and monetary benefits which are not considered or integrated as part of the regular basic salary of the employee at the time of the promulgation of the Decree on December 16, 1975. (Emphasis supplied)