ISSUE

SUBMISSION OF NEW EVIDENCE BEFORE THE NLRC

G.R. No. 175170 September 5, 2012

MISAMIS ORIENTAL II ELECTRIC SERVICE COOPERATIVE (MORESCO

II), Petitioner,
vs.
VIRGILIO M. CAGALAWAN, Respondent.

MORESCO II’s belated submission of

evidence cannot be permitted.

Labor tribunals, such as the NLRC, are not precluded from receiving
evidence submitted on appeal as technical rules are not binding in
cases submitted before them.43 However, any delay in the submission
of evidence should be adequately explained and should adequately
prove the allegations sought to be proven.44

In the present case, MORESCO II did not cite any reason why it had
failed to file its position paper or present its cause before the Labor
Arbiter despite sufficient notice and time given to do so. Only after an
adverse decision was rendered did it present its defense and rebut the
evidence of Cagalawan by alleging that his transfer was made in
response to the letter-request of the area manager of the Gingoog
sub-office asking for additional personnel to meet its collection quota.
To our mind, however, the belated submission of the said letter-
request without any valid explanation casts doubt on its credibility,
specially so when the same is not a newly discovered evidence.

G.R. No. 206562 January 21, 2015

UNICOL MANAGEMENT SERVICES, INC., LINK MARINE PTE. LTD.

and/or VICTORIANO B. TIROL, III,Petitioners,
vs.
DELIA MALIPOT, in behalf of GLICERIO MALIPOT, Respondent.
First, this Court would like to underline the fact that the NLRC may
receive evidence submitted for the first time on appeal on the ground
that it may ascertain facts objectively and speedily without regard to
technicalities of law in the interest of substantial justice.

In Sasan, Sr. v. National Labor Relations Commission 4th

Division,19 We held that our jurisprudence is replete with cases
allowing the NLRC to admit evidence, not presented before the Labor
Arbiter, and submitted to the NLRC for the first time on appeal. The
submission of additional evidence before the NLRC is not prohibited by
its New Rules of Procedure considering that rules of evidence
prevailing in courts of law or equity are not controlling in labor cases.
The NLRC and Labor Arbiters are directed to use every and all
reasonable means to ascertain the facts in each case speedily and
objectively, without regard to technicalities of law and procedure all in
the interest of substantial justice. In keeping with this directive, it has
been held that the NLRC may consider evidence, such as documents
and affidavits, submitted by the parties for the first time on appeal.20

Moreover, among the powers of the Commission as provided in Section

218 of the Labor Code is that the Commission may issue subpoenas
requiring the attendance and testimony of witnesses or the production
of such books, papers, contracts, records, statement of accounts,
agreements, and others.21 In addition, the Commission may, among
other things, conduct investigation for the determination ofa question,
matter or controversy within its jurisdiction, proceed to hear and
determine the disputes in the absence of any party thereto who has
been summoned or served with notice to appear, conduct its
proceedings or any part thereof in public or in private, adjourn its
hearings to any time and place, refer technical matters or accounts to
an expert and to accept his report as evidence after hearing of the
parties upon due notice.22 From the foregoing, it can be inferred that
the NLRC can receive evidence on cases appealed before the
Commission, otherwise, its factual conclusions would not have been
given great respect, much weight, and relevance23 when an adverse
party assails the decision of the NLRC via petition for certiorari under
Rule 65 of the Rules of Court before the CA and then to this Court via
a petition for review under Rule 45.24

EVIDENCE

G.R. No. 196142, March 26, 2014

VENUS B. CASTILLO, LEAH J. EVANGELISTA, DITAS M.

DOLENDO, DAWN KAREN S. SY AND PRUDENTIAL PLANS, INC.
EMPLOYEES UNION – FEDERATION OF FREE WORKERS (PPEU–
FFW), Petitioners, v. PRUDENTIALIFE PLANS, INC., AND/OR
JOSE ALBERTO T. ALBA, ATTY. CEFERINO A. PATIÑO, JR., AND
ROSEMARIE DE LEMOS, Respondents.

In a labor case, the written statements of co–employees admitting

their participation in a scheme to defraud the employer are admissible
in evidence. The argument by an employee that the said statements
constitute hearsay because the authors thereof were not presented for
their cross–examination does not persuade, because the rules of
evidence are not strictly observed in proceedings before the National
Labor Relations Commission (NLRC), which are summary in nature and
decisions may be made on the basis of position papers.

G.R. No. 191825, October 05, 2016

DEE JAY'S INN AND CAFE AND/OR MELINDA

FERRARIS, Petitioners, v. MA. LORINA RAÑESES, Respondent.

BURDEN OF PROOF IN DISMISSAL

In Exodus International Construction Corporation v. Biscocho,26 the

Court pronounced that "[i]n illegal dismissal cases, it is incumbent
upon the employees to first establish the fact of their dismiss before
the burden is shifted to the employer to prove that the dismissal was
legal." The Court then explained that:ChanRoblesVirtualawlibrary
"[T]his Court is not unmindful of the rule that in cases of illegal
dismissal, the employer bears the burden of proof to prove that the
termination was for a valid or authorized cause." But "[b]efore the
[petitioners] must bear the burden of proving that the dismissal was
legal, [the respondents] must first establish by substantial evidence"
that indeed they were dismissed. "[I]f there is no dismissal, then there
can be no question as to the legality or illegality thereof." 27 (Citations
omitted.)

The Court, in Cañedo v. Kampilan Security and Detective Agency,

Inc.,28 expressly recognized the rule that:ChanRoblesVirtualawlibrary

In illegal dismissal cases, "[w]hile the employer bears the burden x x x

to prove that the termination was for a valid or authorized cause, the
employee must first establish by substantial evidence the fact of
dismissal from service." The burden of proving the allegations rests
upon the party alleging and the proof must be clear, positive and
convincing. Thus, in this case, it is incumbent upon petitioner to prove
his claim of dismissal. (Citations omitted.)

The Court reiterated in Brown Madonna Press, Inc. v. Casas,29 that

"[i]n illegal dismissal cases, the employer has the burden of proving
that the employee's dismissal was legal. However, to discharge this
burden, the employee must first prove, by substantial evidence, that
he had been dismissed from employment."

[G.R. NO. 181393 : July 28, 2009]

GRANDTEQ INDUSTRIAL STEEL PRODUCTS, INC. and

ABELARDO M. GONZALES, Petitioners, v. EDNA
MARGALLO, Respondent.

In cases involving money claims of employees, the employer has the

burden of proving that the employees did receive their wages and
benefits and that the same were paid in accordance with law.36
It is settled that once the employee has set out with particularity in his
complaint, position paper, affidavits and other documents the labor
standard benefits he is entitled to, and which the employer allegedly
failed to pay him, it becomes the employer's burden to prove that it
has paid these money claims. One who pleads payment has the
burden of proving it; and even where the employees must allege
nonpayment, the general rule is that the burden rests on the
defendant to prove payment, rather than on the plaintiff to prove
nonpayment.

G.R. No. 186621 March 12, 2014

SOUTH EAST INTERNATIONAL RATTAN, INC. and/or

ESTANISLAO1 AGBAY, Petitioners,
vs.
JESUS J. COMING, Respondent.

In Tan v. Lagrama,35 the Court held that the fact that a worker was
not reported as an employee to the SSS is not conclusive proof of the
absence of employer-employee relationship. Otherwise, an employer
would be rewarded for his failure or even neglect to perform his
obligation.36

Nor does the fact that respondent’s name does not appear in the
payrolls and pay envelope records submitted by petitioners negate the
existence of employer-employee relationship. For a payroll to be
utilized to disprove the employment of a person, it must contain a true
and complete list of the employee.37 In this case, the exhibits offered
by petitioners before the NLRC consisting of copies of payrolls and pay
earnings records are only for the years 1999 and 2000; they do not
cover the entire 18-year period during which respondent supposedly
worked for SEIRI.

G.R. No. 192998 April 2, 2014

BERNARD A. TENAZAS, JAIME M. FRANCISCO and ISIDRO G.
ENDRACA, Petitioners,
vs.
R. VILLEGAS TAXI TRANSPORT and ROMUALDO
VILLEGAS, Respondents.

There is no hard and fast rule designed to establish the aforesaid

elements. Any competent and relevant evidence to prove the
relationship may be admitted. Identification cards, cash vouchers,
social security registration, appointment letters or employment
contracts, payrolls, organization charts, and personnel lists, serve as
evidence of employee status

Unfortunately for him, a mere allegation in the position paper is not

tantamount to evidence

ABANDOMENT- REINSTATEMENT

Jurisprudence has held time and again that abandonment is totally

inconsistent with the immediate filing of a complaint for illegal
dismissal, more so if the same is accompanied by a prayer for
reinstatement

COMPUTATION OF BACKWAGES

G.R. No. 111651 November 28, 1996

OSMALIK S. BUSTAMANTE, PAULINO A. BANTAYAN, FERNANDO L.

BUSTAMANTE, MARIO D. SUMONOD, and SABU J.
LAMARAN, petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION, FIFTH DIVISION and
EVERGREEN FARMS, INC., respondents.

backwages to be awarded to an illegally dismissed employee, should

not, as a general rule, be diminished or reduced by the earnings
derived by him elsewhere during the period of his illegal dismissal. The
underlying reason for this ruling is that the employee, while litigating
the legality (illegality) of his dismissal, must still earn a living to
support himself and family, while full backwages have to be paid by
the employer as part of the price or penalty he has to pay for illegally
dismissing his employee

[G.R. No. 74214. August 31, 1989.]

ST. LOUIS COLLEGE OF TUGUEGARAO, Petitioner, v. NATIONAL LABOR

RELATIONS COMMISSION, JOSE SIMANGAN and BERNABE
AVERA, Respondents.

SYLLABUS

1. LABOR LAW; TERMINATION OF EMPLOYMENT; COMPUTATION OF

BACKWAGES FOR ILLEGALLY DISMISSED EMPLOYEE INCLUDES ALL
OTHER BENEFITS AND BONUSES. — It is settled, that — It is the
obligation of the employer to pay an illegally dismissed employee or
worker the whole amount of the salaries or wages, plus all other
benefits and bonuses and general increases, to which he would have
been normally entitled had he not been dismissed and had not stopped
working. . . . In the computation of back wages and separation pay,
account must be taken not only of the basic salary of the employee but
also of her transportation and emergency allowances. . . . The salary
base properly used in computing the separation pay and the back
wages due to petitioner should include not just the basic salary but
also the regular allowances that petitioner had been receiving. . . .
Anent the respondent Arbiter’s award of leave benefits, the decree on
back wages is understood to be inclusive of such benefits. The grant of
three years back wages without qualification and deduction by the
court necessarily takes into consideration holidays, vacation leaves
and service incentive leaves, paying for all working days regardless of
whether or not the same fall on holidays or employees’ leave days.

2. ID.; ID.; ID.; AWARD OF BACKWAGES LIMITED TO THREE YEARS

WARRANTED DESPITE FINALITY OF THE DECISION; CASE AT BAR. —
It is true that the decision of the NLRC dated November 26, 1982,
ordered the payment of back wages to the private respondents from
the time of their dismissal in 1979 until the date of their
reinstatement, covering a period of more than three years. It is not
true, however, that this period can no longer be reduced because the
decision has already become final and executory. The open-ended
duration of the period prescribed in the said decision renders it subject
to the limitation suggested by the Solicitor General, who pleads the
special circumstances of this case in justification. At the time of their
dismissal in 1979, Avera and Simangan were already 71 and 73 years
old, respectively, and could not be expected to continue much longer,
or indefinitely, in the petitioner’s employ. It is only fair, therefore, that
they be allowed back pay only for the period of three years as in the
case of other illegally dismissed employees. Indeed, such a concession
would be generous in their case as it could not be expected that they
could obtain employment elsewhere at their age, especially with
tenure. Independently of this consideration, and more importantly,
there is the case of Mariners Polytechnic School v. Leogardo, which we
decided only five months ago. Here, an Order of a Labor District
Officer directing that — . . . if the complainant is not reinstated at the
opening of classes in June, 1978, he shall continue to be entitled to
and shall be paid back wages up to and until he is finally reinstated to
his former position. Was subsequently modified by the Regional
Director, who limited the award to three years "consistently with a
long line of decisions of the Supreme Court." He was in turn reversed
by the Deputy Minister of Labor on the ground that substantial
alteration of the decision was no longer possible because it had
already become final. In granting certiorari, this Court, after tracing
the history of the three-year doctrine, concluded through Justice
Andres R. Narvasa: The Court perceives no cogent cause to revise or
ignore this doctrine which, as petitioner stresses, has been
consistently applied in a long line of decisions. It is no argument to say
that the original judgment omitted to impose the three-year restriction
and it is too late to do so now. Indeed, the doctrine is of peculiar
application to executory judgments the enforcement of which
invariably entails a computation of monetary benefits and, as above
pointed out, is designed precisely to assure their unimpeded and
speedy execution. If the three-year limitation were to be held as not
applicable in this case, because not imposed in the judgment sought to
be executed, it would follow, as a matter of logic and justice, that
Mariners, the employer herein, should be allowed to prove the
amounts earned or which could have been earned by its employee,
Tracena, during the period of the latter’s separation from employment;
and until this is done, execution must be abated. As much is suggested
by the Solicitor General. That need not be done. The three-year limit
doctrine has been consistently and uniformly applied by this Court and
by the Ministry of Labor and Employment over many years. That it was
unaccountably disregarded in the judgment in question is of no
moment. Its disregard must be considered a clerical omission. The
Deputy Minister was bound to the observance of the doctrine; it
certainly was not within his power or discretion to decline to apply it;
and his subsequent refusal, during the process of execution, to avail of
the opportunity to uphold his subordinate’s application of the doctrine
constituted in the premises grave abuse of discretion. To correct the
error, and to avoid the mischief against which the doctrine is aimed,
the three-year limitation should be considered as written into the
judgment.

3. ID.; ID.; ID.; SEPARATION PAY PROPER WHERE REINSTATEMET IS

NO LONGER FEASIBLE. — Reinstatement is obviously no longer
feasible in view of their advanced age, we hold that they should
instead receive separation pay, computed at the rate of one month
salary for every year of service, conformably to existing doctrine. As
we said in the case of Sy Chie Junk Shop v. Federacion Obrero de la
Industria y Otros Trabajadores De Filipinas (FOITAF): The public
respondent’s order for the private respondents’ reinstatement to their
former positions is no longer possible under the circumstances. An
award equivalent to three years back wages plus separation pay to
compensate for their illegal separation is thus proper.

G.R. No. 158458 December 19, 2007

ASIAN TERMINALS, INC. and ATTY. RODOLFO G. CORVITE,

JR., petitioners,
vs.
NATIONAL LABOR RELATIONS COMMISSION, DOMINADOR
SALUDARES, and ROMEO L. LABRAGUE,respondents.

His dismissal being illegal, respondent is entitled to backwages as a

matter of right provided by law.31 The CA granted him backwages from
July 1996, when he reported back for work but was informed of his
dismissal, up to the date of finality of its decision. It is noted that the
LA and NLRC decisions did not award backwages and respondent did
not appeal from said decision. Nonetheless, such award of backwages
may still be sustained consistent with our ruling in St. Michael's
Institute v. Santos,[32] to wit:

On the matter of the award of backwages, petitioners advance the

view that by awarding backwages, the appellate court "unwittingly
reversed a time-honored doctrine that a party who has not appealed
cannot obtain from the appellate court any affirmative relief other than
the ones granted in the appealed decision." We do not agree.

The fact that the NLRC did not award backwages to the respondents or
that the respondents themselves did not appeal the NLRC decision
does not bar the Court of Appeals from awarding backwages. While as
a general rule, a party who has not appealed is not entitled to
affirmative relief other than the ones granted in the decision of the
court below, the Court of Appeals is imbued with sufficient authority
and discretion to review matters, not otherwise assigned as errors on
appeal, if it finds that their consideration is necessary in arriving at a
complete and just resolution of the case or to serve the interests of
justice or to avoid dispensing piecemeal justice.

Article 279 of the Labor Code, as amended, mandates that an illegally

dismissed employee is entitled to the twin reliefs of (a) either
reinstatement or separation pay, if reinstatement is no longer viable,
and (b) backwages. Both are distinct reliefs given to alleviate the
economic damage suffered by an illegally dismissed employee and,
thus, the award of one does not bar the other. Both reliefs are rights
granted by substantive law which cannot be defeated by mere
procedural lapses. Substantive rights like the award of backwages
resulting from illegal dismissal must not be prejudiced by a rigid and
technical application of the rules. The order of the Court of Appeals to
award backwages being a mere legal consequence of the finding that
respondents were illegally dismissed by petitioners, there was no error
in awarding the same.33 (Emphasis supplied.)

[G.R. No. 106916. September 3, 1999]

MASAGANA CONCRETE PRODUCTS, KINGSTONE CONCRETE

PRODUCTS and ALFREDO CHUA, Petitioners, v. NATIONAL LABOR
RELATIONS, COMMISSION and RUBEN MARIAS, Respondents.

An illegally dismissed employee is entitled to: 1) either reinstatement,

if viable, or separation pay if reinstatement is no longer viable, and 2)
backwages.43Backwages and separation pay are distinct reliefs given
to alleviate the economic damage suffered by an illegally dismissed
employee.44 Hence, an award of separation pay in lieu of
reinstatement does not bar an award of backwages, computed from
the time of illegal dismissal, in this case on November 30, 1990, up to
the date of the finality of the Supreme Court decision, without
qualification or deduction.45 Separation pay, equivalent to one months
salary for every year of service, is awarded as an alternative to
reinstatement when the latter is no longer an option. Separation pay is
computed from the commencement of employment up to the time of
termination, including the imputed service for which the employee is
entitled to backwages, with the salary rate prevailing at the end of the
period of putative service being the basis for computation.46cräläwvi

G.R. No. 189871 August 13, 2013

DARIO NACAR, PETITIONER,

vs.
GALLERY FRAMES AND/OR FELIPE BORDEY, JR., RESPONDENTS.

rt A recomputation (or an original computation, if no previous

computation has been made) is a part of the law – specifically, Article
279 of the Labor Code and the established jurisprudence on this
provision – that is read into the decision. By the nature of an illegal
dismissal case, the reliefs continue to add up until full satisfaction, as
expressed under Article 279 of the Labor Code. The recomputation of
the consequences of illegal dismissal upon execution of the decision
does not constitute an alteration or amendment of the final decision
being implemented. The illegal dismissal ruling stands; only the
computation of monetary consequences of this dismissal is affected,
and this is not a violation of the principle of immutability of final
judgments

That the amount respondents shall now pay has greatly increased is a
consequence that it cannot avoid as it is the risk that it ran when it
continued to seek recourses against the Labor Arbiter's decision.
Article 279 provides for the consequences of illegal dismissal in no
uncertain terms, qualified only by jurisprudence in its interpretation of
when separation pay in lieu of reinstatement is allowed. When that
happens, the finality of the illegal dismissal decision becomes the
reckoning point instead of the reinstatement that the law decrees. In
allowing separation pay, the final decision effectively declares that the
employment relationship ended so that separation pay and backwages
are to be computed up to that point

.R. No. 172799 July 6, 2007

JOHNSON & JOHNSON (PHILS.), NC., JANSSEN PHARMACEUTICA,

AND/OR RAFAEL BESA, Petitioners,
vs.
JOHNSON OFFICE & SALES UNION-FEDERATION OF FREE WORKERS
(FFW), MA. JESUSA BONSOL and RIZALINDA HIRONDO, Respondents.

Well-entrenched is the rule that an illegally dismissed employee is

entitled to reinstatement as a matter of right. Over the years,
however, case law developed that where reinstatement is not feasible,
expedient or practical, as where reinstatement would only exacerbate
the tension and strained relations between the parties, or where the
relationship between the employer and employee has been unduly
strained by reason of their irreconcilable differences, particularly where
the illegally dismissed employee held a managerial or key position in
the company, it would be more prudent to order payment of
separation pay instead of reinstatement.14 In other words, the
payment of separation compensation in lieu of the reinstatement of an
employee who was illegally dismissed from work shall be allowed if
and only if the employer can prove the existence of circumstances
showing that reinstatement will no longer be for the mutual benefit of
the employer and employee.

Xxx

Having been illegally dismissed as comprehensively discussed above,

complainants-appellants are normally entitled to reinstatement to their
respective former positions without loss of seniority rights and
privileges and to payment of backwages and other benefits.

However, inasmuch, as they are not entirely faultless as they did not
follow exact procedures in the performance of their duties in the
instant case, like paying for medicines immediately upon their being
pulled out of Alstar, not later on, and paying with checks belonging to
their customers, not with their personal checks, Complainants-
Appellants should thus be reinstated to their former position without
loss of seniority rights and previliges [sic] but without any backwages
whatsoever or in the alternative, should thus be paid separation pay
each equivalent to one-half (1/2) month pay for every year of service.

[G.R. NO. 164681 : April 24, 2009]

BERNARDINO V. NAVARRO, Petitioner, v. P.V. PAJARILLO LINER,

INC., Respondent.

He never bothered to redeem his license at the soonest possible time

when there was no showing that he was unlawfully prevented by
respondent from doing so. Thus, petitioner should not be paid for the
time he was not working. The Court has held that where the failure of
employees to work was not due to the employer's fault, the burden of
economic loss suffered by the employees should not be shifted to the
employer. Each party must bear his own loss.17 It would be unfair to
allow petitioner to recover something he has not earned and could not
have earned, since he could not discharge his work as a driver without
his driver's license. Respondent should be exempted from the burden
of paying backwages.

Employer to pay solitarily liable

[G.R. No. 146267. February 17, 2003.]

NYK INTERNATIONAL KNITWEAR CORPORATION PHILIPPINES

and/or CATHY NG, Petitioners, v. NATIONAL LABOR RELATIONS
COMMISSION and VIRGINIA M. PUBLICO, Respondents.

Anent petitioners’ assertion that they cannot be solidarily liable in

this case as there was no malice or bad faith on their part has no leg
to stand on. What the Court finds apropos is our disquisition in A.C.
Ransom Labor Union-CCLU v. NLRC, 14 which held that since a
corporation is an artificial person, it must have an officer who can be
presumed to be the employer, being the "person acting in the interest
of the employer." In other words the corporation, in the technical
sense only, is the employer. In a subsequent case, we ordered the
corporate officers of the employer corporation to pay jointly and
solidarily the private respondents’ monetary award. 15 More recently,
a corporation and its president were directed by this Court to jointly
and severally reinstate the illegally dismissed employees to their
former positions and to pay the monetary awards. 16

In this case Cathy Ng, admittedly, is the manager of NYK. Conformably

with our ruling in A. C. Ransom, she falls within the meaning of an
"employer" as contemplated by the Labor Code, 17 who may be held
jointly and severally liable for the obligations of the corporation to its
dismissed employees. Pursuant to prevailing jurisprudence, Cathy Ng,
in her capacity as manager and responsible officer of NYK, cannot be
exonerated from her joint and several liability in the payment of
monetary award to private Respondent.chanrob1es virtua1 1aw
1ibrary

G.R. No. 119085. September 9, 1999.]

RESTAURANTE LAS CONCHAS and/or DAVID

GONZALES, Petitioners, v. LYDIA LLEGO, SERGIO DANO,
EDWARD ARDIANTE, FEDERICO DE LA CRUZ, SHERILITA ANIEL,
LORNA AZUELA, ZENAIDA HERMOCILLA, FELICIDAD ROLDAN,
HELEN MANALAYSAY, LUZ BALDELAMAR, FELICIDAD MENDOZA,
DOLORES BAQUIZO, RODOLFO BAS, CIRIACO BATITES, and THE
HONORABLE NATIONAL LABOR RELATIONS
COMMISSION, Respondents.

Assuming that indeed, the Restaurant Services Corporation was the

owner of the Restaurante Las Conchas and the employer of private
respondents, this will not absolve petitioners David Gonzales and
Elizabeth Anne Gonzales from their liability as corporate officers.
Although as a rule, the officers and members of a corporation are not
personally liable for acts done in the performance of their duties, this
rule admits of exceptions, one of which is when the employer
corporation is no longer existing and is unable to satisfy the judgment
in favor of the employee, the officers should be held liable for acting
on behalf of the corporation. Here, the corporation does not appear to
exist anymore.

In A.C. Ransom Labor Union–CCLU v. National Labor Relations

Commission, 16 this Court declared that:chanrob1es virtual 1aw
library

. . . Since RANSOM is an artificial person, it must have an officer who

can be presumed to be the employer, being the "person acting in the
interest of (the) employer" RANSOM. The corporation, only in the
technical sense, is the employer.

The responsible officer of an employer corporation can be held

personally, not to say even criminally, liable for non-payment of back
wages. This is the policy of the law. . .

x x x

(c) If the policy of the law were otherwise, the corporation employer
can have devious ways of evading payment of backwages. In the
instant case, it would appear that RANSOM, in 1969, foreseeing the
possibility or probability of payment of back wages to the 22 strikers,
organized ROSARIO to replace RANSOM, with the latter to be
eventually phased out if the 22 strikers win their case. RANSOM
actually ceased operations on May 1, 1973, after the December 19,
1972 Decision of the Court of Industrial Relations was promulgated
against RANSOM.chanrobles virtual lawlibrary

In Gudez v. National Labor Relations Commission, 17 the Court ruled

in this wise:chanrob1es virtual 1aw library
There is no dispute herein that respondent Crisologo is in fact the
president of respondent corporation, RAPSA. Neither is there any
doubt that respondent RAPSA had closed its business upon the order
of the Philippine Constabulary and that as a consequence thereof the
services of petitioner employees were terminated without awarding
them separation pay as required under the Labor Code. It is significant
to note that the respondent corporation had ceased to exist when the
Labor Arbiter rendered its decision holding respondent Crisologo jointly
and severally liable with respondent corporation for the money claims
of its employees. Moreover, records show that on September 25,
1987, which is the same day when the Labor Arbiter’s decision was
promulgated, RAPSA filed a petition for voluntary insolvency with the
Regional Trial Court of Makati. The foregoing circumstances make it
more necessary to hold respondent Crisologo liable for the claims due
to petitioners; otherwise, any decision that would be rendered in favor
of the latter would be useless and ineffective for there would be no one
against whom it can be enforced. Thus, where the employer
corporation is no longer existing and unable to satisfy the judgment in
favor of the employee, the officers should be held liable for acting on
behalf of the corporation. (see Lim v. NLRC, G.R. 79907 and Sweet
Lines, inc. v. NLRC, G.R. 79975, March 16, 1989). (Emphasis
supplied.)

Similarly, in Carmelcraft Corporation v. National Labor Relations

Commission, 18 we ruled as follows:chanrob1es virtual 1aw library

We find also untenable the contention of Carmen Yulo that she is not
liable for the acts of the petitioner company, assuming it had acted
illegally, because the Carmelcraft Corporation is a distinct and
separate entity with a legal personality of its own. Yulo claims she is
only an agent of the company carrying out the decisions of its board of
directors. We do not agree. Our finding is that she is in fact and legal
effect the corporation, being not only its president and general
manager but also its owner.
In Valderrama v. National Labor Relations Commission, 19 it was held
that:chanrob1es virtual 1aw library

A corporation can only act through its officers and agents. That is why
the cease and desist order was directed to the "officers and agents" of
A.C. Ransom, which was actually found guilty of unfair labor practice.
But that case clearly also holds that any decision against the company
can be enforced against the officers in their personal capacities should
the corporation fail to satisfy the judgment against it. The quoted
portion of that decision explaining the basis for such ruling makes that
clear. Agreeably with the ruling in A.C . Ransom Labor Union–CCLU it
was held in another case that where the employer corporation is no
longer existing and [is] unable to satisfy the judgment in favor of the
employee, the officer should be held liable for acting on behalf of the
corporation." (Emphasis supplied.)chanroblesvirtuallawlibrary

In the present case, the employees can no longer claim their

separation benefits and 13th month pay from the corporation because
it has already ceased operation. To require them to do so would render
illusory the separation and 13th month pay awarded to them by the
NLRC. Their only recourse is to satisfy their claim from the officers of
the corporation who were, in effect, acting in behalf of the corporation.
It would appear that, originally, Restaurante Las Conchas was a single
proprietorship put up by the parents of Elizabeth Anne Gonzales, who
together with her husband, petitioner David Gonzales, later took over
its management. Private respondents claim, and rightly so, that the
former were the real owners of the restaurant. The conclusion is
bolstered by the fact that petitioners never revealed who were the
other officers of the Restaurant Services Corporation, if only to
pinpoint responsibility in the closure of the restaurant that resulted in
the dismissal of the private respondents from employment. Petitioner
David Gonzales and Elizabeth Anne Gonzales are, therefore, personally
liable for the payment of the separation and 13th month pay due to
their former employees.
Failure to comply with reinstatement- CONTEMPT not backwages

In case of defiance or non-compliance with the writ of execution, as in

this case, where Crusade paid del Rosario three (3) years backwages
but failed and refused and still fails and refuses to reinstate her
despite several writs of execution, the remedy is not for the grant in
another writ of execution of continuing backwages up to the time of
actual reinstatement. The grant of additional backwages to serve as
damages or as penalty to Crusade for persistently refusing to reinstate
del Rosario has no basis in the decision sought to be enforced and
hence, it may not be resorted to in order to compel reinstatement. The
remedy is provided in the case of D.M. Consunji, Inc. vs. Pucan, et al.,
G.R. No. 71413, March 21, 1988, 159 SCRA 107, wherein an alias writ
of execution was likewise issued directing payment of additional
backwages after the prior award of backwages equivalent to five (5)
years and seven (7) months had been fully satisfied. The Court, in
nullifying the order for payment of additional sums, therein held:

To ensure compliance with the court's order, and realizing the

stubborn refusal to reinstate him, petitioner (sic) should have resorted
to more drastic remedies such as the filing of a motion to cite
petitioner in contempt. In this way, prompt compliance could have
resulted.

G.R. No. 156934 March 16, 2007

ALPHA C. JACULBE, Petitioner,

vs.
SILLIMAN UNIVERSITY,Respondent.

As already stated, an employer is free to impose a retirement age less

than 65 for as long as it has the employees’ consent. Stated
conversely, employees are free to accept the employer’s offer to lower
the retirement age if they feel they can get a better deal with the
retirement plan presented by the employer. Thus, having terminated
petitioner solely on the basis of a provision of a retirement plan which
was not freely assented to by her, respondent was guilty of illegal
dismissal.
At this point, reinstatement is out of the
question.1awphi1.nét Petitioner is now 71 years old and therefore well
over the statutory compulsory retirement age. For this reason, we
grant her separation pay in lieu of reinstatement. It is also for this
reason that we modify the award of backwages in her favor, to be
computed from the time of her illegal dismissal on November 18, 1993
up to her compulsory retirement age.

Illegally dismissed seafarer

EN BANC

G.R. No. 170139, August 05, 2014

SAMEER OVERSEAS PLACEMENT AGENCY, INC., Petitioner, v. JOY

C. CABILES, Respondent.

February 27, 2017

G.R. No. 223035

REYNALDO Y. SUNIT, Petitioner

vs.
OSM MARITIME SERVICES, INC., DOF OSM MARITIME SERVICES A/S,
and CAPT. ADONIS B. DONATO, Respondents

DISABILITY

Permanent disability is defined as the inability of a worker to perform

his job for more than 120 days (or 240 days, as the case may be),
regardless of whether or not he loses the use of any part of his body.
Total disability, meanwhile, means the disablement of an employee to
earn wages in the same kind of work of similar nature that he was
trained for, or accustomed to perform, or any kind of work which a
person of his mentality and attainments could do.11
Under Article 192(c)(1) of the Labor Code, disability that is both
permanent and total disability is defined as "temporary total disability
lasting continuously for more than one hundred twenty days, except as
otherwise provided in the Rules."12 Similarly, Rule VII, Section 2(b) of
the Amended Rules on Employees' Compensation (AREC) provides:

(b) A disability is total and permanent if as a result of the injury or

sickness the employee is unable to perform any gainful occupation for
a continuous period exceeding 120 days, except as otherwise provided
for in Rule X of these Rules. (emphasis supplied)

The adverted Rule X of the AREC, which implements Book IV of the

Labor Code, states in part:

Sec. 2. Period of entitlement. - (a) The income benefit shall be paid

beginning on the first day of such disability. If caused by an injury or
sickness it shall not be paid longer than 120 consecutive days except
where such injury or sickness still requires medical attendance beyond
120 days but not to exceed 240 days from onset of disability in which
case benefit for temporary total disability shall be paid. However, the
System may declare the total and permanent status at anytime after
120 days of continuous temporary total disability as may be warranted
by the degree of actual loss or impairment of physical or mental
functions as determined by the System. (emphasis supplied)

Section 20 (A)(3) of the POEA-SEC, meanwhile, provides that:

SECTION 20. COMPENSATION AND BENEFITS

COMPENSATION AND BENEFITS FOR INJURY OR ILLNESS

The liabilities of the employer when the seafarer suffers work-related

injury or illness during the term of his contract are as follows:

3. In addition to the above obligation of the employer to provide

medical attention, the seafarer shall also receive sickness allowance
from his employer in an amount equivalent to his basic wage
computed from the time he signed off until he is declared fit to work or
the degree of disability has been assessed by the company-designated
physician.

The case of Vergara v. Hammonia Maritime Services,

Inc.13 harmonized the provisions of the Labor Code and the AREC with
Section 20 (B)(3)14 of the POEA-SEC (now Section 20 [A][3] of the
2010 POEA-SEC). Synthesizing the abovementioned
provisions, Vergara clarifies that the 120- day period given to the
employer to assess the disability of the seafarer may be extended to a
maximum of 240 days:

As these provisions operate, the seafarer, upon sign-off from his

vessel, must report to the company-designated physician within three
(3) days from arrival for diagnosis and treatment. For the duration of
the treatment but in no case to exceed 120 days, the seaman is on
temporary total disability as he is totally unable to work. He receives
his basic wage during this period until he is declared fit to work or his
temporary disability is acknowledged by the company to be
permanent, either partially or totally, as his condition is defined under
the POEA Standard Employment Contract and by applicable Philippine
laws. If the 120 days initial period is exceeded and no such declaration
is made because the seafarer requires further medical attention, then
the temporary total disability period may be extended up to a
maximum of 240 days, subject to the right of the employer to declare
within this period that a permanent partial or total disability already
exists. The seaman may of course also be declared fit to work at any
time such declaration is justified by his medical condition.

At this juncture, it bears to recapitulate the procedural requisites

under the rules and established jurispn1dence where the parties opt to
resort to the opinion of a third doctor:

First, according to the POEA-SEC25 and as established

26
by Vergara, when a seafarer sustains a work-related illness or injury
while on board the vessel, his fitness or unfitness for work shall be
determined by the company-designated physician.
Second, if the seafarer disagrees with the findings of the company
doctor, then he has the right to engage the services of a doctor of his
choice. If the second doctor appointed by the seafarer disagrees with
the findings of the company doctor, and the company likewise
disagrees with the findings of the second doctor, then a third doctor
may be agreed jointly between the employer and the seafarer, whose
decision shall be final and binding on both of them.

It must be emphasized that the language of the POEA-SEC is clear in

that both the seafarer and the employermust mutually agree to seek
the opinion of a third doctor. In the event of disagreement on the
services of the third doctor, the seafarer has the right to institute a
complaint with the LA or NLRC.

Third, despite the binding effect of the third doctor's assessment, a

dissatisfied party may institute a complaint with the LA to contest the
same on the ground of evident partiality, corruption of the third
doctor, fraud, other undue means, 27 lack of basis to support the
assessment, or being contrary to law or settled jurisprudence.

G.R. No. 211882, July 29, 2015

ELBURG SHIPMANAGEMENT PHILS., INC., ENTERPRISE SHIPPING AGENCY SRL AND/OR

EVANGELINE RACHO, Petitioners, v. ERNESTO S. QUIOGUE, JR., Respondent.

DECISION

Summation

In summary, if there is a claim for total and permanent disability benefits by a seafarer, the following rules
(rules) shall govern:
Lawli bra ryofCRAlaw

1. The company-designated physician must issue a final medical assessment on the seafarer's
disability grading within a period of 120 days from the time the seafarer reported to him; chanRoble svi rtual Lawli bra ry

2. If the company-designated physician fails to give his assessment within the period of 120 days,
without any justifiable reason, then the seafarer's disability becomes permanent and total; chanRoble svirtual Lawlib rary

3. If the company-designated physician fails to give his assessment within the period of 120 days with
a sufficient justification (e.g. seafarer required further medical treatment or seafarer was
uncooperative), then the period of diagnosis and treatment shall be extended to 240 days. The
employer has the burden to prove that the company-designated physician has sufficient justification
to extend the period; and
 4. If the company-designated physician still fails to give his assessment within the extended period of
240 days, then the seafarer's disability becomes permanent and total, regardless of any
justification.

Thus, while failure to refer the conflicting findings between the company-designated physician and the
seafarer's physician of choice gives the former's medical opinion more weight and probative value over the
latter, still, it does not mean that the courts are bound by such doctor's findings, as the court may set aside
the same if it is shown that the findings of the company-designated doctor have no scientific basis or are not
supported by medical records of the seafarer.26

Indeed, the rule that the company-designated doctor's findings shall prevail in case of non-referral of the
case to a third doctor is not a hard and-fast rule as labor tribunals and the courts are not bound by the
medical findings of the company-doctor. Instead, the inherent merits of the respective medical findings shall
be considered.27