[G.R. NO. 152894 : August 17,
2007]
CENTURY CANNING
CORPORATION, Petitioner, v. COUR
T OF APPEALS and GLORIA C.
PALAD, Respondents.
DECISION
CARPIO, J.:
The Case
This is a Petition for Review 1 of the
Decision2 dated 12 November 2001
and the Resolution dated 5 April 2002
of the Court of Appeals in CA-G.R. SP
No. 60379.
The Facts
On 15 July 1997, Century Canning
Corporation (petitioner) hired Gloria
C. Palad (Palad) as "fish cleaner" at
petitioner's tuna and sardines factory.
Palad signed on 17 July 1997 an
apprenticeship agreement3 with
petitioner. Palad received an
apprentice allowance of P138.75 daily.
On 25 July 1997, petitioner submitted
its apprenticeship program for
approval to the Technical Education
and Skills Development Authority
(TESDA) of the Department of Labor
and Employment (DOLE). On 26
September 1997, the TESDA approved
petitioner's apprenticeship program.4
According to petitioner, a performance
evaluation was conducted on 15
November 1997, where petitioner
gave Palad a rating of N.I. or "needs
improvement" since she scored only
27.75% based on a 100%
performance indicator. Furthermore,
according to the performance
evaluation, Palad incurred numerous
tardiness and absences. As a
consequence, petitioner issued a
termination notice5 dated 22
November 1997 to Palad, informing
her of her termination effective at the
close of business hours of 28
November 1997.
Palad then filed a complaint for illegal
dismissal, underpayment of wages,
and non-payment of pro-rated 13th
month pay for the year 1997.
On 25 February 1999, the Labor
Arbiter dismissed the complaint for
lack of merit but ordered petitioner to
pay Palad her last salary and her pro-
rated 13th month pay. The dispositive
portion of the Labor Arbiter's decision
reads:
WHEREFORE, premises considered,
judgment is hereby rendered
declaring that the complaint for illegal
dismissal filed by the complainant
against the respondents in the above-
entitled case should be, as it is hereby
DISMISSED for lack of merit.
However, the respondents are hereby
ordered to pay the complainant the
amount of ONE THOUSAND SIX
HUNDRED THIRTY-TWO PESOS
(P1,632.00), representing her last
salary and the amount of SEVEN
THOUSAND TWO HUNDRED TWENTY
EIGHT (P7,228.00) PESOS
representing her prorated 13th month
pay.
All other issues are likewise dismissed.
SO ORDERED.6
On appeal, the National Labor
Relations Commission (NLRC)
affirmed with modification the Labor
Arbiter's decision, thus:
WHEREFORE, premises considered,
the decision of the Arbiter dated 25
February 1999 is hereby MODIFIED in
that, in addition, respondents are
ordered to pay complainant's
backwages for two (2) months in the
amount of P7,176.00 (P138.75 x 26 x
2 mos.). All other dispositions of the
Arbiter as appearing in the dispositive
portion of his decision are AFFIRMED.
SO ORDERED.7
Upon denial of Palad's motion for
reconsideration, Palad filed a special
civil action for certiorari with the Court
of Appeals. On 12 November 2001,
the Court of Appeals rendered a
decision, the dispositive portion of
which reads:
WHEREFORE, in view of the foregoing,
the questioned decision of the NLRC is
hereby SET ASIDE and a new one
entered, to wit:
(a) finding the dismissal of petitioner
to be illegal;
(b) ordering private respondent to pay
petitioner her underpayment in
wages;
(c) ordering private respondent to
reinstate petitioner to her former
position without loss of seniority rights
and to pay her full backwages
computed from the time
compensation was withheld from her
up to the time of her reinstatement;
(d) ordering private respondent to pay
petitioner attorney's fees equivalent to
ten (10%) per cent of the monetary
award herein; andcralawlibrary
(e) ordering private respondent to pay
the costs of the suit.
SO ORDERED.8
The Ruling of the Court of Appeals
The Court of Appeals held that the
apprenticeship agreement which Palad
signed was not valid and binding
because it was executed more than
two months before the TESDA
approved petitioner's apprenticeship
program. The Court of Appeals
cited Nitto Enterprises v. National
Labor Relations Commission,9 where it
was held that prior approval by the
DOLE of the proposed apprenticeship
program is a condition sine qua
non before an apprenticeship
agreement can be validly entered into.
The Court of Appeals also held that
petitioner illegally dismissed Palad.
The Court of Appeals ruled that
petitioner failed to show that Palad
was properly apprised of the required
standard of performance. The Court of
Appeals likewise held that Palad was
not afforded due process because
petitioner did not comply with the twin
requirements of notice and hearing.
The Issues
Petitioner raises the following issues:
1. WHETHER THE COURT OF APPEALS
COMMITTED REVERSIBLE ERROR IN
HOLDING THAT PRIVATE
RESPONDENT WAS NOT AN
APPRENTICE; andcralawlibrary
2. WHETHER THE COURT OF APPEALS
COMMITTED REVERSIBLE ERROR IN
HOLDING THAT PETITIONER HAD NOT
ADEQUATELY PROVEN THE
EXISTENCE OF A VALID CAUSE IN
TERMINATING THE SERVICE OF
PRIVATE RESPONDENT.10
The Ruling of the Court
The petition is without merit.
Registration and Approval by the
TESDA of Apprenticeship Program
Required Before Hiring of
Apprentices
The Labor Code defines an apprentice
as a worker who is covered by a
written apprenticeship agreement
with an employer.11 One of the
objectives of Title II (Training and
Employment of Special Workers) of
the Labor Code is to establish
apprenticeship standards for the
protection of apprentices.12 In line
with this objective, Articles 60 and 61
of the Labor Code provide:
ART. 60. Employment of apprentices.
- Only employers in the highly
technical industries may employ
apprentices and only in
apprenticeable occupations
approved by the Minister of Labor
and Employment. (Emphasis
supplied)cralawlibrary
ART. 61. Contents of apprenticeship
agreements. - Apprenticeship
agreements, including the wage rates
of apprentices, shall conform to the
rules issued by the Minister of Labor
and Employment. The period of
apprenticeship shall not exceed six
months. Apprenticeship
agreements providing for wage
rates below the legal minimum
wage, which in no case shall start
below 75 percent of the applicable
minimum wage, may be entered
into only in accordance with
apprenticeship programs duly
approved by the Minister of Labor
and Employment. The Ministry shall
develop standard model programs of
apprenticeship. (Emphasis
supplied)cralawlibrary
In Nitto Enterprises v. National Labor
Relations Commission,13 the Court
cited Article 61 of the Labor Code and
held that an apprenticeship program
should first be approved by the DOLE
before an apprentice may be hired,
otherwise the person hired will be
considered a regular employee. The
Court held:
In the case at bench, the
apprenticeship agreement between
petitioner and private respondent was
executed on May 28, 1990 allegedly
employing the latter as an apprentice
in the trade of "care maker/molder."
On the same date, an apprenticeship
program was prepared by petitioner
and submitted to the Department of
Labor and Employment. However, the
apprenticeship agreement was filed
only on June 7, 1990. Notwithstanding
the absence of approval by the
Department of Labor and
Employment, the apprenticeship
agreement was enforced the day it
was signed.
Based on the evidence before us,
petitioner did not comply with the
requirements of the law. It is
mandated that apprenticeship
agreements entered into by the
employer and apprentice shall be
entered only in accordance with
the apprenticeship program duly
approved by the Minister of Labor
and Employment.
Prior approval by the Department of
Labor and Employment of the
proposed apprenticeship program is,
therefore, a condition sine qua non
before an apprenticeship agreement
can be validly entered into.
The act of filing the proposed
apprenticeship program with the
Department of Labor and Employment
is a preliminary step towards its final
approval and does not instantaneously
give rise to an employer-apprentice
relationship.
Article 57 of the Labor Code provides
that the State aims to "establish a
national apprenticeship program
through the participation of
employers, workers and government
and non-government agencies" and
"to establish apprenticeship standards
for the protection of apprentices." To
translate such objectives into
existence, prior approval of the DOLE
to any apprenticeship program has to
be secured as a condition sine qua non
before any such apprenticeship
agreement can be fully enforced. The
role of the DOLE in apprenticeship
programs and agreements cannot be
debased.
Hence, since the apprenticeship
agreement between petitioner and
private respondent has no force and
effect in the absence of a valid
apprenticeship program duly
approved by the DOLE, private
respondent's assertion that he was
hired not as an apprentice but as a
delivery boy ("kargador" or
"pahinante") deserves credence. He
should rightly be considered as a
regular employee of petitioner as
defined by Article 280 of the Labor
Code x x x. (Emphasis supplied)14
Republic Act No. 779615 (RA 7796),
which created the TESDA, has
transferred the authority over
apprenticeship programs from the
Bureau of Local Employment of the
DOLE to the TESDA.16 RA 7796
emphasizes TESDA's approval of the
apprenticeship program as a pre-
requisite for the hiring of apprentices.
Such intent is clear under Section 4 of
RA 7796:
SEC. 4. Definition of Terms. - As used
in this Act:
xxx
j) "Apprenticeship" training within
employment with compulsory related
theoretical instructions involving
a contract between an apprentice
and an employer on an approved
apprenticeable occupation;
k) "Apprentice" is a person
undergoing training for an
approved apprenticeable
occupation during an established
period assured by an apprenticeship
agreement;
l) "Apprentice Agreement" is a
contract wherein a prospective
employer binds himself to train the
apprentice who in turn accepts the
terms of training for a recognized
apprenticeable occupation
emphasizing the rights, duties and
responsibilities of each party;
m) "Apprenticeable Occupation" is
an occupation officially endorsed by a
tripartite body and approved for
apprenticeship by the Authority hire apprentices for apprenticeable
[TESDA]; (Emphasis occupations which must be officially
supplied)cralawlibrary endorsed by a tripartite body and
approved for apprenticeship by the
In this case, the apprenticeship
TESDA.ςηαñrοblεš νιr†υÎ
agreement was entered into between
±l lαω lιbrαrÿ
the parties before petitioner filed its
apprenticeship program with the This is to ensure the protection of
TESDA for approval. Petitioner and apprentices and to obviate possible
Palad executed the apprenticeship abuses by prospective employers who
agreement on 17 July 1997 wherein it may want to take advantage of the
was stated that the training would lower wage rates for apprentices and
start on 17 July 1997 and would end circumvent the right of the employees
approximately in December to be secure in their employment.
17
1997. On 25 July 1997, petitioner
The requisite TESDA approval of the
submitted for approval its
apprenticeship program prior to the
apprenticeship program, which the
hiring of apprentices was further
TESDA subsequently approved on 26
emphasized by the DOLE with the
September 1997.18 Clearly, the
issuance of Department Order No. 68-
apprenticeship agreement was
04 on 18 August 2004. Department
enforced even before the TESDA
Order No. 68-04, which provides the
approved petitioner's apprenticeship
program. Thus, the apprenticeship guidelines in the implementation of
the Apprenticeship and Employment
agreement is void because it lacked
Program of the government,
prior approval from the TESDA.
specifically states that no enterprise
The TESDA's approval of the shall be allowed to hire
employer's apprenticeship program is apprentices unless its
required before the employer is apprenticeship program is
allowed to hire apprentices. Prior registered and approved by
approval from the TESDA is necessary TESDA.20
to ensure that only employers in the
Since Palad is not considered an
highly technical industries may
apprentice because the apprenticeship
employ apprentices and only in
agreement was enforced before the
apprenticeable occupations.19 Thus,
TESDA's approval of petitioner's
under RA 7796, employers can only
apprenticeship program, Palad is
deemed a regular employee
performing the job of a "fish cleaner."
Clearly, the job of a "fish cleaner" is
necessary in petitioner's business as a
tuna and sardines factory. Under
Article 28021 of the Labor Code, an
employment is deemed 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.
Illegal Termination of Palad
We shall now resolve whether
petitioner illegally dismissed Palad.
Under Article 27922 of the Labor Code,
an employer may terminate the
services of an employee for just
causes23 or for authorized
causes.24 Furthermore, under Article
277(b)25 of the Labor Code, the
employer must send the employee
who is about to be terminated, a
written notice stating the causes for
termination and must give the
employee the opportunity to be heard
and to defend himself. Thus, to
constitute valid dismissal from
employment, two requisites must
concur: (1) the dismissal must be for
a just or authorized cause; and (2) the
employee must be afforded an
opportunity to be heard and to defend
himself.26
In this case, the Labor Arbiter held
that petitioner terminated Palad for
habitual absenteeism and poor
efficiency of performance. Under
Section 25, Rule VI, Book II of the
Implementing Rules of the Labor
Code, habitual absenteeism and poor
efficiency of performance are among
the valid causes for which the
employer may terminate the
apprenticeship agreement after the
probationary period.
However, the NLRC reversed the
finding of the Labor Arbiter on the
issue of the legality of Palad's
termination:
As to the validity of complainant's
dismissal in her status as an
apprentice, suffice to state that the
findings of the Arbiter that
complainant was dismissed due to
failure to meet the standards is
nebulous. What clearly appears is that
complainant already passed the
probationary status of the
apprenticeship agreement of 200
hours at the time she was terminated
on 28 November 1997 which was
already the fourth month of the
apprenticeship period of 1000 hours.
As such, under the Code, she can only
be dismissed for cause, in this case,
for poor efficiency of performance on
the job or in the classroom for a
prolonged period despite warnings
duly given to the apprentice.
We noted that no clear and
sufficient evidence exist to
warrant her dismissal as an
apprentice during the agreed
period. Besides the absence of any
written warnings given to
complainant reminding her of
"poor performance," respondents'
evidence in this respect consisted
of an indecipherable or
unauthenticated xerox of the
performance evaluation allegedly
conducted on complainant. This is
of doubtful authenticity and/or
credibility, being not only
incomplete in the sense that
appearing thereon is a signature
(not that of complainant) side by
side with a date indicated
as "1/16/98". From the looks of
it, this signature is close to and
appertains to the typewritten
position of "Division/Department
Head", which is below the
signature of complainant's
immediate superior who made the
evaluation indicated as "11-15-
97."
The only conclusion We can infer
is that this evaluation was made
belatedly, specifically, after the
filing of the case and during the
progress thereof in the Arbitral
level, as shown that nothing
thereon indicate that complainant
was notified of the results. Its
authenticity therefor, is a big
question mark, and hence lacks
any credibility. Evidence, to be
admissible in administrative
proceedings, must at least have a
modicum of authenticity. This,
respondents failed to comply with. As
such, complainant is entitled to the
payment of her wages for the
remaining two (2) months of her
apprenticeship
agreement.27 (Emphasis
supplied)cralawlibrary
Indeed, it appears that the Labor
Arbiter's conclusion that petitioner
validly terminated Palad was based
mainly on the performance evaluation
allegedly conducted by petitioner.
However, Palad alleges that she had
no knowledge of the performance
evaluation conducted and that she
was not even informed of the result of
the alleged performance evaluation.
Palad also claims she did not receive a
notice of dismissal, nor was she given
the chance to explain. According to
petitioner, Palad did not receive the
termination notice because Palad likewise admits that Palad did not
allegedly stopped reporting for work receive the notice of
30
after being informed of the result of termination because Palad allegedly
the evaluation. stopped reporting for work. The
records are bereft of evidence to show
Under Article 227 of the Labor Code,
that petitioner ever gave Palad the
the employer has the burden of
opportunity to explain and defend
proving that the termination was for a
herself. Clearly, the two requisites for
valid or authorized cause.28 Petitioner
a valid dismissal are lacking in this
failed to substantiate its claim that
case.
Palad was terminated for valid
reasons. In fact, the NLRC found that WHEREFORE, we AFFIRM the
petitioner failed to prove the Decision dated 12 November 2001 and
authenticity of the performance the Resolution dated 5 April 2002 of
evaluation which petitioner claims to the Court of Appeals in CA-G.R. SP No.
have conducted on Palad, where Palad 60379.
received a performance rating of only
SO ORDERED.
27.75%. Petitioner merely relies on
the performance evaluation to prove
Palad's inefficiency. It was likewise not
shown that petitioner ever apprised
Palad of the performance standards
set by the company. When the alleged
valid cause for the termination of
employment is not clearly proven, as
in this case, the law considers the
matter a case of illegal dismissal.29
Furthermore, Palad was not accorded
due process. Even if petitioner did
conduct a performance evaluation on
Palad, petitioner failed to warn Palad
of her alleged poor performance. In
fact, Palad denies any knowledge of
the performance evaluation conducted
and of the result thereof. Petitioner
G.R. No. 122917 July 12, 1999 AND TRUST Also assailed is the August 4, 1995
COMPANY, respondents. Resolution 5 of the NLRC, which
MARITES BERNARDO, ELVIRA GO denied the Motion for Reconsideration.
DIAMANTE, REBECCA E. DAVID,
DAVID P. PASCUAL, RAQUEL The Facts
PANGANIBAN, J.:
ESTILLER, ALBERT HALLARE,
The facts were summarized by the
EDMUND M. CORTEZ, JOSELITO O. The Magna Carta for Disabled Persons
NLRC in this wise: 6
AGDON GEORGE P. LIGUTAN JR., mandates that qualified disabled
CELSO M. YAZAR, ALEX G. persons be granted the same terms Complainants numbering 43 (p. 176,
CORPUZ, RONALD M. DELFIN, and conditions of employment as Records) are deaf-mutes who were
ROWENA M. TABAQUERO, qualified able-bodied employees. hired on various periods from 1988 to
CORAZON C. DELOS REYES, Once they have attained the status of 1993 by respondent Far East Bank and
ROBERT G. NOORA, MILAGROS O. regular workers, they should be Trust Co. as Money Sorters and
LEQUIGAN, ADRIANA F. accorded all the benefits granted by Counters through a uniformly worded
TATLONGHARI, IKE law, notwithstanding written or verbal agreement called "Employment
CABANDUCOS, COCOY NOBELLO, contracts to the contrary. This Contract for Handicapped Workers".
DORENDA CANTIMBUHAN, treatments is rooted not merely on (pp. 68 & 69, Records) The full text of
ROBERT MARCELO, LILIBETH Q. charity or accomodation, but on said agreement is quoted below:
MARMOLEJO, JOSE E. SALES, justice for all.
ISABEL MAMAUAG, VIOLETA G. EMPLOYMENT CONTRACT FOR
MONTES, ALBINO TECSON, The Case
HANDICAPPED WORKERS
MELODY V. GRUELA, BERNADETH
Challenged in the Petition
D. AGERO, CYNTHIA DE VERA, This Contract, entered into by and
for Certiorari 1 before us is the June
LANI R. CORTEZ, MA. ISABEL B. between:
20, 1995 Decision2 of the National
CONCEPCION, DINDO VALERIO,
Labor Relations Commission FAR EAST BANK AND TRUST
ZENAIDA MATA, ARIEL DEL PILAR,
(NLRC), 3 which affirmed the August, COMPANY, a universal banking
MARGARET CECILIA CANOZA,
22 1994 ruling of Labor Arbiter corporation duly organized and
THELMA SEBASTIAN, MA.
Cornelio L. Linsangan. The labor existing under and by virtue of the
JEANETTE CERVANTES, JEANNIE
arbiter's Decision disposed as laws of the Philippines, with business
RAMIL, ROZAIDA PASCUAL,
follows: 4 address at FEBTC Building, Muralla,
PINKY BALOLOA, ELIZABETH
VENTURA, GRACE S. PARDO and Intramuros, Manila, represented
WHEREFORE, judgment is hereby
TIMOSA, petitioners, herein by its Assistant Vice President,
rendered dismissing the above-
vs. MR. FLORENDO G. MARANAN,
mentioned complaint for lack of merit.
NATIONAL LABOR RELATIONS (hereinafter referred to as the
COMMISSION and FAR EAST BANK "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:
1. 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.
2. The EMPLOYEE shall perform
among others, the following duties
and responsibilities:
i. Sort out bills according to color;
ii. Count each denomination per
hundred, either manually or with the
aid of a counting machine;
iii. Wrap and label bills per hundred;
iv. Put the wrapped bills into bundles;
and
v. Submit bundled bills to the bank
teller for verification.
3. 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.
4. 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.1âwphi1.nêt
5. 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.
6. The EMPLOYEE shall likewise be
entitled to the following benefits:
i. Proportionate 13th month pay based
on his basic daily wage.
ii. Five (5) days incentive leave.
iii. SSS premium payment.
7. 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.
8. 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.
9. 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.
IN WITNESS WHEREOF, the parties,
have hereunto affixed their
signature[s] this —— day of ———, —
—— at Intramuros, Manila,
Philippines.
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.
xxx xxx xxx
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 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 was
adopted the special program to help
tide over a group of 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 sortes 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, 12.Records);
RONALD M. that
DELFIN Intramuros
31. MARIA 22-Feb-93
ISABEL B.CONCEPCION
22-Aug-93 West 6-Sep-90 6-Fe
through the "pakiusap" of Arturo
13. relieved
Borjal, the tellers were ROWENAofM. TABAQUERO
this Intramuros
32. DINDO 22-Feb-93
VALERIO 22-Aug-93 Intramuros 30-May-93 30-N
task of counting and sorting bills in
favor of deaf-mutes14. CORAZON
without C. DELOS REYES
creating Intramuros
33. ZENAIDA
8-Feb-93
MATA 8-Aug-93 Intramuros 10-Feb-93 10-A
new positions as there is no position
15. ROBERT
either in the respondent or inG.any
NOORA Intramuros
34. ARIEL DEL
15-Feb-93
PILAR 15-Aug-93 Intramuros 24-Feb-93 24-A
other bank in the Philippines which
16. MILAGROS O. LEQUIGAN Intramuros
35. MARGARET
1-Feb-93
CECILIA CANOZA
1-Aug-93 Intramuros 27-Jul-90 4-Fe
deals with purely counting and sorting
of bills in banking operations.
17. ADRIANA F. TATLONGHARI Intramuros
36. THELMA
22-Jan-93
SEBASTIAN 22-Jul-93 Intramuros 12-Nov-90 17-N
Petitioners specified when each of
18. IKE CABUNDUCOS Intramuros
37. MA. JEANETTE
24-Feb-93
CERVANTES
24-Aug-93 West 6-Jun-92 7-De
them was hired and dimissed, viz: 7

PETITIONER 19. COCOYDate

WORKPLACE NOBELLO
Hired Intramuros
Date Dismissed 38. JEANNIE
22-Feb-93
RAMIL 22-Aug-93 Intramuros 23-Apr-90 12-O

S BERNARDO 20. DORENDA

Intramuros CATIMBUHAN17-Nov-93 Intramuros
12-Nov-90 39. ROZAIDA
15-Feb-93
PASCUAL 15-Aug-93 Bel-Air 20-Apr-89 29-O

GO DIAMANTE 21. ROBERT

Intramuros MARCELO
24-Jan-90 11-Jan-94 West 40. PINKY BALOLOA
31 JUL 93 8 1-Aug-93 West 3-Jun-91 2-De

A E. DAVID 22. LILIBETH

Intramuros Q. MARMOLEJO
16-Apr-90 23-Oct-93 West 41. ELIZABETH
15-Jun-90
VENTURA 21-Nov-93 West 12-Mar-90 FEB

P. PASCUAL Bel-Air23. JOSE E.15-Oct-88

SALES 21-Nov-94 West 42. GRACE 6-Aug-92
S. PARDO 12-Oct-93 West 4-Apr-90 13-M

ESTILLER 24. ISABEL2-Jul-92

Intramuros MAMAUAG 4-Jan-94 West 43. RICO TIMOSA
8-May-92 10-Nov-93 Intramuros 28-Apr-93 28-O

As 15-Jan-94
earlier noted, the labor arbiter and,
HALLARE West 25. VIOLETA G. MONTES
4-Jan-91 9-Jan-94 Intramuros 2-Feb-90
on appeal, the NLRC ruled against
D M. CORTEZ Bel-Air26. ALBINO15-Jan-91
TECSON 3-Dec-93 Intramuros 7-Nov-91 10-Nov-93
herein petitioners. Hence, this
recourse to this Court. 9
O O. AGDON 27. MELODY
Intramuros B. GRUELA
5-Nov-90 17-Nov-93 West 28-Oct-91 3-Nov-93
The Ruling of the NLRC
E P. LIGUTAN JR. 28. BERNADETH
Intramuros D. AGERO 19-Jan-94 West
6-Sep-89 19-Dec-90 27-Dec-93
In affirming the ruling of the labor
29. CYNTHIA DE VERA arbiter that herein petitioners could
M. YAZAR Intramuros 8-Feb-93 8-Aug-93 Bel-Air 26-Jun-90 3-Dec-93
not be deemed regular employees
30. LANI R.15-Feb-93
CORTEZ under Article 280 of the Labor Code,
G. CORPUZ Intramuros 15-Aug-93 Bel-Air 15-Oct-88 10-Dec-93
as amended, Respondent Commission
ratiocinated as follows:
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 . . . 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."
Issues
In their Memorandum, petitioners cite
the following grounds in support of
their cause:
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.
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
In the main, the Court will resolve
whether petitioners have become
regular employees.
This Court's Ruling
The petition is meritorious. However,
only the employees, who worked for
more than six months and whose
contracts were renewed are deemed
regular. Hence, their dismissal from
employement was illegal.
Preliminary Matter:
Propriety of Certiorari
Respondent Far East Bank and Trust
Company argues that a review of the
findings of facts of the NLRC is not
allowed in a petition for certiorari.
Specifically, it maintains that the
Court cannot pass upon the findings of
public respondent that petitioners
were not regular employees.
True, the Court, as a rule, does not
review the factual findings of public
respondents in
a certiorari proceeding. In resolving
whether the petitioners have become
regular employees, we shall not
change the facts found by the public
respondent. Our task is merely to
determine whether the NLRC
committed grave abuse of discretion
in applying the law to the established
facts, as above-quoted from the
assailed Decision.
Main Issue
Are Petitioners Regular Employee?
Petitioners maintain that they should
be considered regular employees,
because their task as money sorters
and counters was necessary and
desirable to the business of
respondent bank. They further allege
that their contracts served merely to
preclude the application of Article 280
and to bar them from becoming
regular employees.
Private respondent, on the other hand,
submits that petitioners were hired
only as "special workers and should
not in any way be considered as part
of the regular complement of the
Bank." 12 Rather, they were "special"
workers under Article 80 of the Labor
Code. Private respondent contends
that it never solicited the services of
petitioners, whose employment was
merely an "accommodation" in
response to the requests of
government officials and civic-minded
citizens. They were told from the start,
"with the assistance of government
representatives," that they could not
become regular employees because
there were no plantilla positions for
"money sorters," whose task used to
be performed by tellers. Their
contracts were renewed several times,
not because of need "but merely for
humanitarian reasons." Respondent
submits that "as of the present, the
"special position" that was created for
the petitioners no longer exist[s] in
private respondent [bank], after the
latter had decided not to renew
anymore their special employment
contracts."
At the outset, let it be known that this
Court appreciates the nobility of
private respondent's effort to provide
employment to physically impaired
individuals and to make them more
productive members of society.
However, we cannot allow it to elude
the legal consequences of that effort,
simply because it now deems their
employment irrelevant. The facts,
viewed in light of the Labor Code and
the Magna Carta for Disabled Persons,
indubitably show that the petitioners,
except sixteen of them, should be
deemed regular employees. As such,
they have acquired legal rights that
this Court is duty-bound to protect and
uphold, not as a matter of compassion
but as a consequence of law and
justice.
The uniform employment contracts of
the petitioners stipulated that they
shall be trained for a period of one
month, after which the employer shall
determine whether or not they should
be allowed to finish the 6-month term
of the contract. Furthermore, the
employer may terminate the contract
at any time for a just and reasonable
cause. Unless renewed in writing by
the employer, the contract shall
automatically expire at the end of the
term.1âwphi1.nêt
According to private respondent, the
employment contracts were prepared
in accordance with Article 80 of the
Labor code, which provides;
Art. 80. Employment agreement. —
Any employer who employs
handicapped workers shall enter into
an employment agreement with them,
which agreement shall include:
(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.
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.
Respondent bank entered into the
aforesaid contract with a total of 56
handicapped workers and renewed the
contracts of 37 of them. In fact, two of
them worked from 1988 to 1993.
Verily, the renewal of the contracts of
the handicapped workers and the
hiring of others lead to the conclusion
that their tasks were beneficial and
necessary to the bank. More
important, these facts show that they
were qualified to perform the
responsibilities of their positions. In
other words, their disability did not
render them unqualified or unfit for
the tasks assigned to them.
In this light, the Magna Carta for
Disabled Persons mandates that a
qualified disabled employee should be
given the same terms and conditions
of employment as a qualified able-
bodied person. Section 5 of the Magna
Carta provides:
Sec. 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.
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 test of whether an employee is
regular was laid down in De Leon
v. NLRC, 14 in which this Court held:
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 indispensibility of
that activity to the business. Hence,
the employment is considered regular,
but only with respect to such activity,
and while such activity exist.
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.
As held by the Court, "Articles 280 and
281 of the Labor Code put an end to
the pernicious practice of making
permanent casuals of our lowly
employees by the simple expedient of
extending to them probationary
appointments, ad infinitum."15 The
contract signed by petitioners is akin
to a probationary employment, during
which the bank determined the
employees' fitness for the job. When
the bank renewed the contract after
the lapse of the six-month
probationary period, the employees
thereby became regular
employees. 16 No employer is allowed
to determine indefinitely the fitness of
its employees.
As regular employees, the twenty-
seven petitioners are entitled to
security of tenure; that is, their
services may be terminated only for a
just or authorized cause. Because
respondent failed to show such
cause, 17 these twenty-seven
petitioners are deemed illegally
dismissed and therefore entitled to
back wages and reinstatement without
loss of seniority rights and other
privileges. 18 Considering the
allegation of respondent that the job
of money sorting is no longer available
because it has been assigned back to
the tellers to whom it originally
belonged, 18 petitioners are hereby
awarded separation pay in lieu of
reinstatement. 20
Because the other sixteen worked only
for six months, they are not deemed
regular employees and hence not
entitled to the same benefits.
Applicability of the
Brent Ruling
Respondent bank, citing Brent School
v. Zamora 21 in which the Court
upheld the validity of an employment
contract with a fixed term, argues that
the parties entered into the contract
on equal footing. It adds that the
petitioners had in fact an advantage,
because they were backed by then
DSWD Secretary Mita Pardo de Tavera
and Representative Arturo Borjal.
We are not persuaded. The term limit
in the contract was premised on the
fact that the petitioners were disabled,
and that the bank had to determine
their fitness for the position. Indeed,
its validity is based on Article 80 of the
Labor Code. But as noted earlier,
petitioners proved themselves to
be qualified disabled persons who,
under the Magna Carta for Disabled
Persons, are entitled to terms and
conditions of employment enjoyed
by qualified able-bodied individuals;
hence, Article 80 does not apply
because petitioners are qualified for
their positions. The validation of the
limit imposed on their contracts,
imposed by reason of their disability,
was a glaring instance of the very
mischief sought to be addressed by
the new law.
Moreover, it must be emphasized that
a contract of employment is impressed
with public interest. 22 Provisions of
applicable statutes are deemed
written into the contract, and the
"parties are not at liberty to insulate
themselves and their relationships
from the impact of labor laws and
regulations by simply contracting with
each other." 23 Clearly, the agreement
of the parties regarding the period of
employment cannot prevail over the
provisions of the Magna Carta for
Disabled Persons, which mandate that
petitioners must be treated as
qualified able-bodied employees.
Respondent's reason for terminating
the employment of petitioners is
instructive. Because the Bangko
Sentral ng Pilipinas (BSP) required
that cash in the bank be turned over
to the BSP during business hours from
8:00 a.m. to 5:00 p.m., respondent
resorted to nighttime sorting and
counting of money. Thus, it reasons
that this task "could not be done by
deaf mutes because of their physical
limitations as it is very risky for them
to travel at night." 24 We find no basis
for this argument. Travelling at night
involves risks to handicapped and
able-bodied persons alike. This excuse
cannot justify the termination of their
employment.
Other Grounds Cited by Respondent
Respondent argues that petitioners
were merely "accommodated"
employees. This fact does not change
the nature of their employment. As
earlier noted, an employee is regular
because of the nature of work and the
length of service, not because of the
mode or even the reason for hiring
them.
Equally unavailing are private
respondent's arguments that it did not
go out of its way to recruit petitioners,
and that its plantilla did not contain completely ruling out all written and
their positions. In L. T. Datu oral agreements inconsistent with the
25
v. NLRC, the Court held that "the concept of regular employment
determination of whether employment defined therein. Where an employee
is casual or regular does not depend has been engaged to perform
on the will or word of the employer, activities which are usually necessary
and the procedure of hiring . . . but on or desirable in the usual business of
the nature of the activities performed the employer, such employee is
by the employee, and to some extent, deemed a regular employee and is
the length of performance and its entitled to security of tenure
continued existence." notwithstanding the contrary
provisions of his contract of
Private respondent argues that the
employment.
petitioners were informed from the
start that they could not become xxx xxx xxx
regular employees. In fact, the bank
At this juncture, the leading case
adds, they agreed with the stipulation
of Brent School,
in the contract regarding this point.
Inc. v. Zamora proves instructive. As
Still, we are not persuaded. The well-
reaffirmed in subsequent cases, this
settled rule is that the character of
Court has upheld the legality of fixed-
employment is determined not by
term employment. It ruled that the
stipulations in the contract, but by the
nature of the work decisive determinant in "term
employment" should not be the
performed. 26 Otherwise, no employee
activities that the employee is called
can become regular by the simple
upon to perform but the day certain
expedient of incorporating this
agreed upon the parties for the
condition in the contract of
commencement and termination of
employment.
their employment relationship. But
In this light, we iterate our ruling this Court went on to say that where
in Romares v. NLRC: 27 from the circumstances it is apparent
that the periods have been imposed to
Art. 280 was emplaced in our statute preclude acquisition of tenurial
books to prevent the circumvention of
security by the employee, they should
the employee's right to be secure in
be struck down or disregarded as
his tenure by indiscriminately and
contrary to public policy and morals.
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.
In this light, we note the Office of the
Solicitor General's prayer joining the
petitioners' cause. 28
WHEREFORE, premises considered,
the Petition is hereby GRANTED. The
June 20, 1995 Decision and the
August 4, 1995 Resolution of the NLRC
are REVERSED and SET ASIDE.
Respondent Far East Bank and Trust
Company is hereby ORDERED to pay
back wages and separation pay to
each of the following twenty-seven
(27) petitioners, namely, 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., Liliberh 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. The NLRC is hereby directed
to compute the exact amount due
each of said employees, pursuant to
existing laws and regulations, within
fifteen days from the finality of this
Decision. No costs.1âwphi1.nêt
SO ORDERED.