329 Phil. 581
PANGANIBAN, J.:
"Complainant (herein private respondent) started working with respondent (PESALA) sometime last March 1, 1986 as a company guard and was receiving a monthly basic salary of P1,990.00 plus an emergency allowance in the amount of P510.00. He was required to work a (sic) twelve (12) hours a day, a (sic) xerox copies of his appointment are hereto attached and marked as Annexes ‘C’ and ‘D’ of this position paper;On December 13, 1990, petitioner PESALA filed its position paper[5] alleging among other things:
That on December 10, 1986, respondent Board of Directors in its board meeting held on November 21, 1986 approved a salary adjustment for the complainant increasing his monthly basic salary to P2,310.00 and an emergency allowance of P510.00, a xerox copy of the salary adjustment is hereto attached and marked as Annex ‘E’ hereof;
That on August 25, 1987, because of his impressive performance on his assigned job, another adjustment was approved by the President of the association increasing his monthly basic salary to P2,880.00, a xerox copy of the salary adjustment is hereto attached and marked as Annex ‘F’ hereof;
That from January 4, 1988 up to June 1990, several salary adjustments were made by the respondent on the monthly basic salary of the complainant including a letter of appreciation for being as (sic) one of the outstanding performers during the first half of 1988, the latest salary prior to the filing of the complaint was P3,720.00, a (sic) xerox copies of all the documents relative to the salary adjustments are hereto attached and marked as annexes ‘G’, ‘H’, ‘I’, ‘J’ and ‘K’ of this position paper;
That during his entire period of employment with respondent, the former was required to perform overtime work without any additional compensation from the latter. It was also at this point wherein the respondent refused to give the P25.00 increase on the minimum wage rates as provided for by law. On October 12, 1990, complainant was suspended for the period of thirty seven (37) days for an offense allegedly committed by the respondent sometime last August 1989.’
"On 01 March, 1986, complainant was appointed in a permanent status as the company guard of respondent. In the Appointment Memorandum dated February 24, 1986 which has the conformity of complainant, it is expressly stipulated therein that complainant is to receive a monthly salary of P1,900.00 plus P510.00 emergency allowance for a twelve (12) hours work per day with one (1) day off. A copy of said appointment memorandum is hereto attached as Annex ‘A’ and made an integral part hereof.What transpired afterwards is narrated by the Solicitor General in his memorandum,[7] which we presume to be correct since petitioner did not contradict the same in its memorandum:
On 01 December, 1986, the monthly salary of complainant was increased to P2,310.00 plus P510.00 emergency allowance. Later, or on 01 January, 1988, the monthly salary of complainant was again increased to P3,420.00. And still later, or on 01 February, 1989, complainant’s monthly salary was increased to P3,720.00. Copies of the memoranda evidencing said increase are hereto attached as Annexes ‘B’, ‘B-1’ and ‘B-2’ and are made integral parts hereof.
On 29 November, 1989, the manager of respondent in the person of Sulpicio Jornales wrote to complainant informing the latter that the position of a guard will be abolished effective November 30, 1989, and that complainant will be re-assigned to the position of a ledger custodian effective December 1, 1989.
Pursuant to the above-mentioned letter-agreement of Mr. Jornales, complainant was formally appointed by respondent as its ledger custodian on December 1, 1989. The monthly salary of complainant as ledger custodian starting on December 1, 1989 was P3,720.00 for forty (40) working hours a week or eight (8) working hours a day. A copy of said Appointment memorandum is hereto attached as Annex ‘C’ and made an integral part hereof.
On 29 August, 1990, complainant was administratively charged with serious misconduct or disobedience of the lawful orders of respondent or its officers, and gross and habitual neglect of his duties, committed as follows:
‘1. Sometime in August, 1989, you (referring to complainant Esquejo) forwarded the checks corresponding to the withdrawals of Mr. Jose Jimenez and Mr. Anselmo dela Banda of Davao and Iloilo Station, respectively, without the signature of the Treasurer and the President of PESALA, in violation of your duty and function that you should see to it that the said checks should be properly signed by the two PESALA officials before you send out said checks of their addresses. As a result of which, there was a substantial delay in the transmission of the checks to its owners resulting to an embarrassment on the part of the PESALA officers and damage and injury to the receipients (sic) of the checks since they needed the money badly.
2. Sometime in August, 1989, before you (complainant) went on your vacation, you failed to leave or surrender the keys of the office, especially the keys to the main and back doors which resulted to damage, injury and embarrassment to PESALA. This is a gross violation of your assigned duties and you disobeyed the instruction of your Superior.’xxx xxx xxx
Herein complainant was informed of the aforequoted charges against him and was given the opportunity to be heard and present evidence in his behalf as shown by the Notice of Hearing (Annex ‘D’ hereof) sent to him. Complainant did in fact appeared (sic) at the hearing, assisted by his counsel, Atty. Mahinardo G. Mailig, and presented his evidence in the form of a Counter-Affidavit. A copy of said Counter-Affidavit is hereto attached as Annex ‘E’ and made an integral part hereof.
On 12 October, 1990, after due deliberation on the merits of the administrative charges filed against herein complainant, the Investigating Officer in the person of Capt. Rogelio Enverga resolved the same imposing a penalty of suspension of herein complainant, thus:‘PENALTY: 1. For the first offense, you (referring to complainant Esquejo) are suspended for a period of thirty (30) working days without pay effective October 15, 1990.On March 7, 1991, private respondent filed a detailed and itemized computation of his money claims totaling P107,495.90, to which petitioner filed its comment on April 28, 1991. The computation filed on March 7, 1991 was later reduced to P65,302.80. To such revised computation, the petitioner submitted its comment on April 28, 1991.
2. For the second offense, your (sic) are suspended for a period of seven (7) working days without pay effective from the date the first suspension will expire.’"
Thereafter, labor arbiter Cornelio L. Linsangan rendered a decision dated November 11, 1991 granting overtime pay as follows:"WHEREFORE, judgment is hereby rendered:Aggrieved by the aforesaid decision, petitioner appealed to public respondent NLRC only to be rejected on April 23, 1992 via the herein assailed Decision, the dispositive portion of which reads as follows:
1. Granting the claim for overtime pay covering the period October 10, 1987 to November 30, 1989 in the amount of P28,344.55.
2. The claim for non-payment of P25.00 salary increase pursuant to Republic Act No. 6727 is dismissed for lack of merit.""WHEREFORE, premises considered, the award is reduced to an amount of TWENTY EIGHT THOUSAND SIXTY-SIX PESOS AND 45/100 (P28,066.45). In all other respects, the Decision under review is hereby AFFIRMED and the appeal DISMISSED for lack of merit."No motion for reconsideration of the Decision was filed by the petitioner.[6]
"x x x Petitioner did not appeal the Decision of respondent NLRC. When it became final, the parties were called to a conference on June 29, 1992 to determine the possibility of the parties’ voluntary compliance with the Decision (Order of Labor Arbiter Linsangan, dated July 23, 1992).In the meantime, petitioner filed the instant special civil action for certiorari before this Court on July 10, 1992. Later, on July 17, 1992, citing as reason that "x x x quite recently, the Employee Payroll Sheets which contained the salaries and overtime pay received by respondent Esquejo were located in the bodega of the petitioner and based on said Payroll Sheets, it appears that substantial overtime pay have been paid to respondent Esquejo in the amount of P24,283.22 for the period starting January 1987 up to November 1989," petitioner asked this Court for the issuance of a temporary restraining order or writ of preliminary injunction. On the same date of July 17, 1992, a "Supplemental Petition Based On Newly Discovered Evidence" was filed by petitioner to which was attached photocopies of payroll sheets of the aforestated period.
x x x In their second conference, held on July 15, 1992, petitioner proposed to private respondent a package compromise agreement in settlement of all pending claims. Private respondent for his part demanded P150,000.00 as settlement of his complaint which was turned down by petitioner as too excessive. Unfortunately, no positive results were achieved.
As a result, a pleading was filed by petitioner captioned: Motion to Defer Execution and Motion to Re-Compute alleged overtime pay. Petitioner states that ‘quite recently, the Employee Payroll Sheets pertaining to the salaries, overtime pay, vacation and sick leave of Angel Esquejo were located.’
x x x Petitioner’s Motion to Defer Execution and Motion to Re-Compute respondent’s overtime pay was denied in an Order dated July 23, 1992.
x x x Petitioner moved to reconsider the Denial Order on July 27, 1992. Private respondent opposed."
In essence the above issues boil down to this query: Is an employee entitled to overtime pay for work rendered in excess of the regular eight hour day given the fact that he entered into a contract of labor specifying a work-day of twelve hours at a fixed monthly rate above the legislative minimum wage?"I
THE RESPONDENT NLRC COMMITTED A GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT PRIVATE RESPONDENT IS ENTITLED TO OVERTIME PAY WHEN THE SAME IS A GROSS CONTRAVENTION OF THE CONTRACT OF EMPLOYMENT BETWEEN PETITIONER AND RESPONDENT ESQUEJO AND A PATENT VIOLATION OF ARTICLES 1305, 1306 AND 1159 OF THE CIVIL CODE.II
THE RESPONDENT NLRC COMMITTED A GRAVE ABUSE OF DISCRETION IN AWARDING OVERTIME PAY OF P28,066.45 TO PRIVATE RESPONDENT WHEN THE SAME IS A CLEAR VIOLATION OF ARTICLE 22 OF THE CIVIL CODE ON UNJUST ENRICHMENT.III
THE RESPONDENT NLRC COMMITTED A GRAVE ABUSED OF DISCRETION WHEN IT RULED THAT PRIVATE RESPONDENT WAS NOT PAID THE OVERTIME PAY BASED ON THE COMPUTATION OF LABOR ARBITER CORNELIO LINSANGAN WHICH WAS AFFIRMED BY SAID RESPONDENT NLRC WHEN THE SAME IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE AND IT, THEREFORE, VIOLATED THE CARDINAL PRIMARY RIGHTS OF PETITIONER AS PRESCRIBED IN ‘ANG TIBAY VS. CIR’ 69 PHIL. 635.IV
WHETHER OR NOT THE PETITIONER’S SUPPLEMENTAL PETITION BASED ON NEWLY DISCOVERED EVIDENCE MAY BE ADMITTED AS PART OF ITS EVIDENCE IT BEING VERY VITAL TO THE JUDICIOUS DETERMINATION OF THE CASE."(Rollo, p. 367)
"x x x. The implementing rules of respondent NLRC are unequivocal in requiring that a motion for reconsideration of the order, resolution, or decision of respondent commission should be seasonably filed as a precondition for pursuing any further or subsequent remedy, otherwise the said order, resolution, or decision shall become final and executory after ten calendar days from receipts thereof. Obviously, the rationale therefor is that the law intends to afford the NLRC an opportunity to rectify such errors or mistakes it may have lapsed into before resort to the courts of justice can be had. This merely adopts the rule that the function of a motion for reconsideration is to point to the court the error that it may have committed and to give it a chance to correct itself."[10]In brief, the filing of the instant petition was premature and did not toll the running of the 3 month period. Thus, the assailed Decision became final and executory. On this ground alone, this petition must therefore be dismissed.
"Additionally, the allegations in the petition clearly show that petitioner failed to file a motion for reconsideration of the assailed Resolution before filing the instant petition. As correctly argued by private respondent Rolando Tan, such failure constitutes a fatal infirmity x x x. The unquestioned rule in his jurisdiction is that certiorari will lie only if there is no appeal or any other plain, speedy and adequate remedy in the ordinary course of law against the acts of public respondent. In the instant case, the plain and adequate remedy expressly provided by law was a motion for reconsideration of the assailed decision, based on palpable or patent errors, to be made under oath and filed within ten (10) calendar days from receipt of the questioned decision. And for failure to avail of the correct remedy expressly provided by law, petitioner has permitted the subject Resolution to become final and executory after the lapse of the ten day period within which to file such motion for reconsideration."[11]
"Date: February 24, 1986Petitioner faults the public respondent when it said that there was "no meeting of minds between the parties," since the employment contract "explicitly states without any equivocation" that the overtime pay for work rendered for four (4) hours in excess of the eight (8) hour regular working period is already included in the P1,990.00 basic salary. "This is very clear from the fact that the appointment states 12 hours a day work."[13] By its computations,[14] petitioner tried to illustrate that private respondent was paid more than the legally required minimum salary then prevailing.
NAME :ESQUEJO, ANGEL
NATURE OF ACTION :APPOINTMENT
FROM :
POSITION TITLE :COMPANY GUARD
TO :
STATUS :PERMANENT
EFFECTIVE DATE :MARCH 1, 1986
FROM :P1,990.00 per month
plus P510.00 emergency
allowance
SALARY :
TO :
------------------------------
REMARKS :To confirm permanent
appointment as company
guard who will render 12
hours a day with one (1)
day off
------------------------------
RECOMMENDED BY: APPROVED BY:
(Signed) (Signed)
SULPICIO B. JORNALES CATALINO F. BANEZ
(Signed)
ANGEL V. ESQUEJO"[12]
To prove its contention, petitioner argues that:On the other hand, private respondent in his position paper claims that overtime pay is not so incorporated and should be considered apart from the P1,990.00 basic salary.[15]
"The legal minimum wage prescribed by our statutes, the legally computed overtime pay and the monthly salaries being paid by petitioner to respondent Esquejo would show that indeed, the overtime pay has always been absorbed and included in the said agreed monthly salaries.
In 1986, the legal minimum salary of Esquejo is computed as follows (per Appointment Memoranda dated February 4, 1986 and June 6, 1986 [Annex ‘C’ and ‘D’ of Annex ‘B’ of this Petition]):
54 x 314 days
12 months = P1,413.00 monthly salary
The hourly overtime pay is computed as follows:
54/8 hours = P6.75 x 4 hrs. = P27.00
P27.00 x 1.25 = P33.75 x 20 (should be 26) days = P887.50
(should be P877.50)
P1,413.00 - legal minimum wage
+ 887.50(877.50) - legal overtime pay
P2,290.50 - amount due to respondent
Esquejo under the law
P2,500.00 - gross salary of Esquejo per contract
-2,290.50
P 209.50 - Difference" (Rollo, p. 371).
"In resolving the issue of whether or not complainant’s overtime pay for the four (4) hours of work rendered in excess of the normal eight hour work period is incorporated in the computation of his monthly salary, respondent invokes its contract of employment with the complainant. Said contract appears to be in the nature of a document identifiable as an appointment memorandum which took effect on March 1, 1986 (Records, p. 56) by virtue of which complainant expressed conformity to his appointment as company guard with a work period of twelve (12) hours a day with one (1) day off. Attached to this post is a basic salary of P1,990.00 plus P510.00 emergency allowance. It is (a) cardinal rule in the interpretation of a contract that if the terms thereof are clear and leave no doubt upon the intention of the contracting parties, then the literal meaning of its stipulations shall control. (Art. 1370, Civil Code of the Philippines). To this, respondent seeks refuge. Circumstances, however, do not allow us to consider this rule in the light of complainant’s claim for overtime pay which is an evident indication that as to this matter, it cannot be said that there was a meeting of the minds between the parties, it appearing that respondent considered the four (4) hours work in excess of the eight hours as overtime work and compensated by way of complainant’s monthly salary while on the latter’s part, said work rendered is likewise claimed as overtime work but yet unpaid in view of complainant’s being given only his basic salary. Complainant claims that the basic salary could not possibly include therein the overtime pay for his work rendered in excess of eight hours. Hence, respondent’s Appointment Memorandum cannot be taken and accorded credit as it is so worded in view of this ambiguity. We therefore proceed to determine the issue in the light of existing law related thereto. While it is true that the complainant received a salary rate which is higher that the minimum provided by law, it does not however follow that any additional compensation due the complainant can be offset by his salary in excess of the minimum, especially in the absence of an express agreement to that effect. To consider otherwise would be in disregard of the rule of nondiminution of benefits which are above the minimum being extended to the employees. Furthermore, such arrangement is likewise in disregard of the manner required by the law on how overtime compensation must be determined. There is further the possibility that in view of subsequent increases in the minimum wage, the existing salary for twelve (12) hours could no longer account for the increased wage level together with the overtime rate for work rendered in excess of eight hours. This fertile ground for a violation of a labor standards provision can be effectively thwarted if there is a clear and definite delineation between an employee’s regular and overtime compensation. It is, further noted that a reading of respondent’s Appointment Memoranda issued to the complainant on different dates (Records, pp. 56-60) shows that the salary being referred to by the respondent which allegedly included complainant’s overtime pay, partakes of the nature of a basic salary and as such, does not contemplate any other compensation above thereof including complainant’s overtime pay. We therefore affirm complainant’s entitlement to the latter benefit."[17]Petitioner also insists that private respondent’s delay in asserting his right/claim demonstrates his agreement to the inclusion of overtime pay in his monthly salary rate. This argument is specious. First of all, delay cannot be attributed to the private respondent. He was hired on March 1, 1986. His twelve-hour work periods continued until November 30, 1989. On October 10, 1990 (just before he was suspended) he filed his money claims with the labor arbiter. Thus, the public respondent in upholding the decision of the arbiter computed the money claims for the three year period from the date the claims were filed, with the computation starting as of October 10, 1987 onwards.
"x x x Our conclusion is quite clear considering the fact that at the time of his employment in March 1986, during which the minimum wage was P37.00 a day for 8 hours work, complainant’s total take-home-pay working 12 hours a day including ECOLA, was only P2,500.00 a month. And immediately prior to his appointment as Ledger Custodian effective December 1, 1989, with the working hours reduced to 8 hours or 40 hours a week, complainant’s monthly salary was P3,420.00 (instead of P5,161.01 minimum monthly with 4 hours overtime work everyday, or a difference of P1,741.01 a month).Petitioner believes that by adopting the above-quoted portion of the arbiter’s decision, respondent NLRC violated the cardinal rule that its decisions must be supported by substantial evidence. In doing so, petitioner claims that the NLRC violated its primary rights as enunciated in the case of Ang Tibay vs. CIR.[29] In other words, petitioner holds the view that the arbiter’s decision failed to explain how the amount of P5,161.01 was arrived at.[30]
"Accordingly, the claim for overtime pay reckoned from October 10, 1987 up to November 30, 1989 should be, as it is hereby, granted."[28] (Rollo, p. 201).
"Respondent claims that the award of P28,344.55 is bereft of any factual basis. Records show that as per computation of the office of the Fiscal Examiner, (Records, p. 116) the said amount was arrived at. The computation was however based on the assumption that the complainant regularly reported for work. Records however show that the complainant absented himself from work for one day in August 1989. (Records, p. 63) For this unworked day, no overtime pay must be due. As to the rest of his period of employment subject to the three year limitation rule which dates from October 10, 1987 up to his appointment as Ledger Custodian on December 1, 1989 after which is regular work period was already reduced to eight hours, there being no showing that the complainant absented himself from work, and he being then required to work for a period of twelve hours daily, We therefore rule on complainant’s entitlement to overtime compensation for the duration of the aforesaid period in excess of one working day. Consequently, complainant’s overtime pay shall be computed as follows:Prescinding therefrom, it is evident that petitioner had no basis to argue that respondent NLRC committed any grave abuse of discretion in quoting the questioned portion of the labor arbiter’s holding.
OVERTIME PAY: (4 HRS/DAY)
October 10, 1987 - December 13, 1987 = 2.10 mos.
P54/8 hrs. = P6.75 x 4 hrs. = P27.00
P27 x 1.25 = P33.75 x 26 x 2.10 mos. = P1,842.75
December 14, 1987 - June 30, 1989 = 18.53 mos.
P64/8 hrs. = P8 x 4 hrs. = P32.00
P32 x 1.25 = P40 x 26 x 18.53 = P19,271.20
July 1, 1989 - November 30, 1989 = 5 mos.
P89/8 hrs. = P11.12 x 4 hrs. = P44.50
P44.50 x 1.25 = P55.62 x 25 x 5 mos. = P6,952.50(P6,953.125)
TOTAL OVERTIME PAY
P28,066.45(P28,067.075)" (Rollo, pp. 210-212).
"2. That only recently, the petitioner was able to locate the Employees Payroll Sheets which contained the salaries, overtime pay, vacation and sick leaves of respondent Esquejo which pertains to the period starting from January 1, 1987 up to November 1989. Therefore, said total amount of overtime pay paid to and received by respondent Esquejo should be deducted from the computed amount of P28,066.45 based on the questioned decision." (Rollo, p. 220).Contrary to petitioner’s claim however, said documents consisting of payroll sheets, cannot be considered as "newly-discovered evidence" since said papers were in its custody and possession all along, petitioner being the employer of private respondent.
"It is clear from the payroll, although the substantial pages thereof do not show that the net amount indicated therein have been received or duly acknowledged to have been received by the complainant, THAT OVERTIME PAYMENTS THAT WERE MADE REFER TO WORK RENDERED DURING COMPLAINANT’S OFF DAYS. What has been rightfully claimed by the complainant and awarded by this Honorable Office is the overtime works (sic) rendered by the complainant daily for six (6) days a week computed at four (4) hours per day. This computation is based on the evidence thus submitted by the parties. All appointments issued by the respondent carries (sic) with it (sic) that the basic salary of the complainant is equivalent to 12 hours work everyday for six (6) days a week, hence, the four (4) hours overtime daily was not considered and therefore not paid by the respondent." (Rollo, p. 327).It has been consistently held that factual issues are not proper subjects of a petition for certiorari, as the power of the Supreme Court to review labor cases is limited to questions of jurisdiction and grave abuse of discretion.[32] The introduction in this petition of so-called newly discovered evidence is unwarranted. This Court is not a trier of facts and it is not its function to examine and evaluate the evidence the evidence presented (or which ought to have been presented) in the tribunals below.[33]