G.R. No. 107761 December 27, 1994

ASSOCIATION OF MARINE OFFICERS AND SEAMEN OF REYES AND LIM CO. (MANAGERS FOR CARGO MARINE CORP.), petitioner, vs.HON. BIENVENIDO E. LAGUESMA, REYES AND LIM CO. INC. (MANAGERS FOR CARGO MARINE CORP.), respondent.

Ruscius G. Zaragoza for petitioner.

Jonathan M. Polines for private respondent.

ROMERO, J.:

The question before us in this petition for certiorari is whether or not the major patron, minor patron, chief mate and chief engineer of a vessel are managerial employees.

Public respondent Undersecretary of Labor has ruled that they are, contrary to petitioner labor organization's contention that they are rank and file employees who may form part of the union.

The facts antecedent to this petition are as follows:

The Association of Marine Officers and Seamen of Reyes and Lim Co., a legitimate labor organization, filed a petition for certification election on March 11, 1992. On June 1, 1992 the Med-Arbiter issued an Order for the conduct of a certification election in the bargaining unit covering the entire complement of four vessels.

He ruled that even as private respondent company alleges certain employees to be managerial, supervisory and confidential employees (master, chief mate, second mate, third mate, radio officer, chief engineer and second engineer), the records is bereft of any showing that the marine officers are performing managerial, supervisory, and confidential functions. 1

The dispositive portion of the Med-Arbiter's Order reads:

WHEREFORE, on the foregoing consideration, let a certification election be conducted among the regular marine officers and seamen of Reyes and Lim Co., Inc. (Managers for Cargo Marine Corp.) within twenty (20) days from receipt hereof, subject to the usual pre-election conference of the parties to thresh out the mechanics and other details of the election. The payroll of the company three (3) months prior to the filing of the petition shall be used as the basis in determining the list of eligible voters.

The choices are:

a) Association of Marine Officers and Seamen of Reyes and Lim Co., Inc. (Managers for Cargo Marine Corp.); and

b) No Union.

SO ORDERED. 2

Private respondent Reyes and Lim Co. Inc. appealed this Order to the Secretary of Labor and Employment on the issues of employees' status as well as the composition of the bargaining unit. In a resolution dated October 8, 1992, Undersecretary Bienvenido E. Laguesma modified the order and held that:

PREMISES CONSIDERED, the Resolution of the Med-Arbiter dated 01 June 1992 is hereby modified so as to exclude Major Patron, Minor Patron, and Chief (Mate) and Chief Marine Engineer from the bargaining unit.

SO RESOLVED. 3

Their motion for reconsideration having been denied for lack of merit on November 5, 1992, 4

petitioner comes to us seeking to have the Resolution of public respondent set aside and to have us rule that the major patron, minor patron, chief mate and chief engineer are not managerial employees but rank and file. As members of the rank and file, these employees would be eligible to form part of the union and take part in the certification election.

To buttress their position that the aforementioned employees are not managerial but rank and file employees, petitioner advances the following arguments.

Firstly, it is petitioner's belief that aside from having the power to execute management policies and to hire and fire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees, a managerial employee should also have the power and prerogative to lay down management policies. Petitioner claims that the major patron, minor patron, and chief mate and chief engineer do not have the power to lay down management policies because they merely navigate the bay and rivers of Pasig and Bataan hauling liquefied petroleum (gasul). Moreover, private respondent's operations department has "high-tech maritime gadgets and equipment" in order to monitor and direct the operations of the boats while en route to its destination. 5

Secondly, petitioner asserts that the job descriptions submitted by private respondent Reyes and Lim Co., Inc. 6 and relied upon by public respondent Undersecretary of Labor do not apply to the situation of the aforementioned employees. Furthermore, the job descriptions were not acknowledged and even outrightly denied by the workers themselves. 7 The employees of Reyes and Lim Co., Inc. possess no seamen's book, for they do not traverse the high seas but merely the bay and rivers from Pasig to Bataan. They therefore, are not covered by the job descriptions applicable to Filipino seafarers, but are ordinary workers. 8

Finally, public respondent's determination of who are managerial employees constitutes a deprivation of the worker's right to self-organization and free collective bargaining since such resolution is made during pre-election conference on "inclusion-exclusion" proceedings. 9

Petitioner's arguments fail to persuade.

The only question for resolution is whether or not the major patron, minor patron, chief mate and chief engineer of the vessels, M/T Banak, M/T Butane, M/T Biya, and M/T Alkane are managerial employees, and as such, not qualified, therefore, to join a union.

Public respondent opined in the following manner:

An evaluation of the afore-mentioned job descriptions submitted by respondent-appellant vis-a-vis Article 212 (m) of the Labor Code, as amended, showed that the following are managerial positions, namely: Major Patron, Minor Patron, Chief Mate and Chief Marine Engineer. This must be so, because among the Major Patron's duties and functions are to take complete charge and command of the ship and to perform the duties and responsibilities of a ship captain; a Minor Patron commands a vessel, plying within limits of inland waterways, ports and estuaries, while a Chief Mate acts as the executive officer next in command to the captain on board a ship; and a Chief Marine Engineer plans, coordinates the engine-room department including supervision of subordinates. In the performance of said functions, it is clear that they are vested with powers or prerogatives to lay down and execute management policies. 10

While petitioners assail public respondent for the use of the "Job Descriptions of Main Category of Particular Ranks and Ratings of Filipino Seafarers" submitted by private respondent, they offer no other superior proof by way of reliability and substance.

Such an attack on these job descriptions cannot be considered adequate. Apart from general claims made in a joint affidavit executed by 18 employees, including the masters, chief mates and chief engineers of three vessels, 11 there appears no other proof on record of the functions they actually perform on board the vessels and of the functions performed by other marine officers of the same position.

To buttress their position, private respondents assert that these "Job Descriptions" have been adopted as reference by the POEA and considered as matters of public knowledge in consonance with the provisions of the Code of Commerce, Philippine Merchant Marine Rules and Regulations and customary maritime practice with respect to the inherent and customary duties of captains, chief mates, and chief marine engineers on board the vessels. 12

This declaration remaining unrebutted, we are led to the conclusion that the job descriptions submitted constitute industry practice, at the very least.

More importantly, the credence accorded by public respondent to these job descriptions is worthy of due respect. The factual findings of quasi-judicial agencies, such as the Department

of Labor and Employment which are supported by substantial evidence, are binding on us and entitled to great respect considering their expertise in their respective fields. 13

Petitioner's failure to overcome the submissions of private respondent as regards these descriptions and to rebut the same leaves us no alternative but to accept public respondent's evaluation of facts.

Furthermore, petitioner's arguments that the employees who work on board the vessels are not seamen bound by the job descriptions, is untenable. The fact that they transport liquefied petroleum gas (LPG) and the vessels operate for only five hours are immaterial for these do not remove them from the coverage of maritime law. While they haul LPG, they continue to do so on board a vessel which traverses waters. Neither the length of operating time nor the area traveled would alter the fact that the vessels are used as means of transportation by water and within the sphere of maritime law to which the job descriptions are applicable. The workers on board are not, as petitioners would have us believe, in the category of gasoline delivery helpers or ordinary employees. 14

We next consider the law concerning managerial employees.

The second paragraph of Article 82 referring to managerial employees in the Labor Code reads, thus:

. . . "managerial employees" refers to those whose primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof, and to other officers or members of the managerial staff. . . .

Article 212 (m) of the Code further defines managerial employees as:

(m) "Managerial employee" is one who is vested with powers or prerogatives to lay down and execute management policies and/or tohire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees. . . ..

The implementing rules and regulations of the Labor Code further provide a more detailed definition of managerial employees. Rule I, Book III, Section 2 states:

Sec. 2. Exemption. — The provisions of this Rule shall not apply to the following persons if they qualify for exemption under the conditions set forth herein:

(a) . . . .

(b) Managerial employees, if they meet all of the following conditions, namely:

(1) Their primary duty consists of the management of the establishment in which they are employed or of a department or subdivision thereof;

(2) They customarily and regularly direct the work of two or more employees therein;

(3) They have the authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to the hiring and firing and as to the promotion or any other change of status of other employees are given particular weight.

(c) . . . .

It is very significant to note that we are not dealing here with employees of an ordinary business establishment. The business of a marine or shipping corporation is, by its very nature, different from other corporate concerns.

Petitioner claims that the marine officers in question must possess the power to lay down and formulate management policies aside from just executing such policies.

Public respondent committed no error in concluding that the positions of major patron, minor patron, chief mate, and chief engineer are managerial because the job descriptions on record disclose that the major patron's duties include taking complete charge and command of the ship and performing the responsibilities and duties of a ship captain; the minor patron also commands the vessel, plying the limits of inland waterways, ports and estuaries; the chief mate performs the functions of an executive officer next in command to the captain; and the chief marine engineer takes over-all charge of the operation of the ship's mechanical and electrical equipment. Public respondent's assessment of these managerial functions of the subject officers has adequate basis and should not be disturbed.

The functions which these officers discharge pertain to the navigation of the vessel. Even if there are advanced communications equipment on board, the importance of the position of the officers in assessing risks and evaluating the vessel's situation remains indisputable. The exercise of discretion and judgment in directing a ship's course is as much managerial in nature as decisions arrived at in the confines of the more conventional board room or executive office.

We find that there has been no grave abuse of discretion on the part of the respondent Undersecretary of Labor when it ruled that the major patron, minor patron, chief mate and chief engineer are managerial employees who are not allowed under Article 245 of the Labor Code to join, assist or form any labor organization.

With regard to the next issue, petitioners content that the determination of whether or not said employees are managerial should be done during thepre-election conference on "inclusion-exclusion proceeding," and not during the processing of their petition for certification election. We find this issue not a proper one for

consideration since it is raised in this petition for the first time. The well-settled principle that issues not raised in the court a quo cannot be raised for the first time on appeal for being offensive to basic rules of fair play, justice, and due process applies even in labor cases. 15

IN VIEW WHEREOF, the instant petition is DISMISSED. The challenged resolution of the Undersecretary of Labor is AFFIRMED.

SO ORDERED.

[G.R. No. 112574. October 8, 1998]

MERCIDAR FISHING CORPORATION represented by its President DOMINGO B. NAVAL, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and FERMIN AGAO, JR., respondents.

D E C I S I O N

MENDOZA, J.:

This is a petition for certiorari to set aside the decision, dated August 30, 1993, of the National Labor Relations Commission dismissing the appeal of petitioner Mercidar Fishing Corporation from the decision of the Labor Arbiter in NLRC NCR Case No. 09-05084-90, as well as the resolution dated October 25, 1993, of the NLRC denying reconsideration.

This case originated from a complaint filed on September 20, 1990 by private respondent Fermin Agao, Jr. against petitioner for illegal dismissal, violation of P.D. No. 851, and non-payment of five days service incentive leave for 1990. Private respondent had been employed as a “bodegero” or ship’s quartermaster on February 12, 1988. He complained that he had been constructively dismissed by petitioner when the latter refused him assignments aboard its boats after he had reported to work on May 28, 1990. i[1]

Private respondent alleged that he had been sick and thus allowed to go on leave without pay for one month from April 28, 1990 but that when he reported to work at the end of such period with a health clearance, he was told to come back another time as he could not be reinstated immediately. Thereafter, petitioner refused to give him work. For this reason, private respondent asked for a certificate of employment from petitioner on September 6, 1990. However, when he came back for the certificate on September 10, petitioner refused to issue the certificate unless he submitted his resignation. Since private respondent refused to submit such letter unless he was given separation pay, petitioner prevented him from entering the premises.ii[2]

Petitioner, on the other hand, alleged that it was private respondent who actually abandoned his work. It claimed that the latter failed to report for work after his leave had expired and was, in fact, absent without leave for three months until August 28, 1998. Petitioner further claims that, nonetheless, it assigned private respondent to another vessel, but the latter was left behind on September 1, 1990. Thereafter, private respondent asked for a certificate of employment on September 6 on the pretext that he was applying to another fishing company. On September 10, 1990, he refused to get the certificate and resign unless he was given separation pay.iii[3]

On February 18, 1992, Labor Arbiter Arthur L. Amansec rendered a decision disposing of the case as follows:

ACCORDINGLY, respondents are ordered to reinstate complainant with backwages, pay him his 13th month pay and incentive leave pay for 1990.

All other claims are dismissed.

SO ORDERED.

Petitioner appealed to the NLRC which, on August 30, 1993, dismissed the appeal for lack of merit. The NLRC dismissed petitioner’s claim that it cannot be held liable for service incentive leave pay by fishermen in its employ as the latter supposedly are “field personnel” and thus not entitled to such pay under the Labor Code.iv[4]

The NLRC likewise denied petitioner’s motion for reconsideration of its decision in its order dated October 25, 1993.

Hence, this petition. Petitioner contends:

I

THE RESPONDENT COMMISSION PALPABLY ERRED IN RULING AND SUSTAINING THE VIEW THAT FISHING CREW MEMBERS, LIKE FERMIN AGAO, JR., CANNOT BE CLASSIFIED AS FIELD PERSONNEL UNDER ARTICLE 82 OF THE LABOR CODE.

II

THE RESPONDENT COMMISSION ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT UPHELD THE FINDINGS OF THE LABOR ARBITER THAT HEREIN PETITIONER HAD CONSTRUCTIVELY DISMISSED FERMIN AGAO, JR., FROM EMPLOYMENT.

The petition has no merit.

Art. 82 of the Labor Code provides:

ART. 82. Coverage. - The provisions of this Title [Working Conditions and Rest Periods] shall apply to employees in all establishments and undertakings whether for profit or not, but not to government employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another, and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations.

. . . . . . . . . .

“Field personnel” shall refer to non-agricultural employees who regularly perform their duties away from the principal place of business or branch office of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty.

Petitioner argues essentially that since the work of private respondent is performed away from its principal place of business, it has no way of verifying his actual hours of work on the vessel. It contends that private respondent and other fishermen in its employ should be classified as “field personnel” who have no statutory right to service incentive leave pay.

In the case of Union of Filipro Employees (UFE) v. Vicar,v[5] this Court explained the meaning of the phrase “whose actual hours of work in the field cannot be determined with reasonable certainty” in Art. 82 of the Labor Code, as follows:

Moreover, the requirement that “actual hours of work in the field cannot be determined with reasonable certainty” must be read in conjunction with Rule IV, Book III of the Implementing Rules which provides:

Rule IV Holidays with Pay

Section 1. Coverage - This rule shall apply to all employees except:

. . . . . . . . . .

(e) Field personnel and other employees whose time and performance is unsupervised by the employer xxx (Italics supplied)

While contending that such rule added another element not found in the law (Rollo, p. 13), the petitioner nevertheless attempted to show that its affected members are not covered by the abovementioned rule. The petitioner asserts that the company’s sales personnel are strictly supervised as shown by the SOD (Supervisor of the Day) schedule and the company circular dated March 15, 1984 (Annexes 2 and 3, Rollo, pp. 53-55).

Contrary to the contention of the petitioner, the Court finds that the aforementioned rule did not add another element to the Labor Code definition of field personnel. The clause “whose time and performance is unsupervised by the employer” did not amplify but merely interpreted and expounded the clause “whose actual hours of work in the field cannot be determined with reasonable certainty.” The former clause is still within the scope and purview of Article 82 which defines field personnel. Hence, in deciding whether or not an employee’s actual working hours in the field can be determined with reasonable certainty, query must be made as to whether or not such employee’s time and performance is constantly supervised by the employer.vi[6]

Accordingly, it was held in the aforementioned case that salesmen of Nestle Philippines, Inc. were field personnel:

It is undisputed that these sales personnel start their field work at 8:00 a.m. after having reported to the office and come back to the office at 4:00 p.m. or 4:30 p.m. if they are Makati-based.

The petitioner maintains that the period between 8:00 a.m. to 4:00 or 4:30 p.m. comprises the sales personnel’s working hours which can be determined with reasonable certainty.

The Court does not agree. The law requires that the actual hours of work in the field be reasonably ascertained. The company has no way of determining whether or not these sales personnel, even if they report to the office before 8:00 a.m. prior to field work and come back at 4:30 p.m., really spend the hours in between in actual field work.vii[7]

In contrast, in the case at bar, during the entire course of their fishing voyage, fishermen employed by petitioner have no choice but to remain on board its vessel. Although they perform non-agricultural work away from petitioner’s business offices, the fact remains that throughout the duration of their work they are under the effective control and supervision of petitioner through the vessel’s patron or master as the NLRC correctly held.viii[8]

Neither did petitioner gravely abuse its discretion in ruling that private respondent had constructively been dismissed by petitioner. Such factual finding of both the NLRC and the Labor Arbiter is based not only on the pleadings of the parties but also on a medical certificate of fitness which, contrary to petitioner’s claim, private respondent presented when he reported to work on May 28, 1990.ix[9] As the NLRC held:

Anent grounds (a) and (b) of the appeal, the respondent, in a nutshell, would like us to believe that the Arbiter abused his discretion (or seriously erred in his findings of facts) in giving credence to the factual version of the complainant. But it is settled that “(W)hen confronted with conflicting versions of factual matters,” the Labor Arbiter has the “discretion to determine which party deserves credence on the basis of evidence received.” [Gelmart Industries (Phils.), Inc. vs. Leogardo, 155 SCRA 403, 409, L-70544, November 5, 1987]. And besides, it is settled in this jurisdiction that “to constitute abandonment of position, there must be concurrence of the intention to abandon and some overt acts from which it may be inferred that the employee concerned has no more interest in working” (Dagupan Bus Co., Inc. vs. NLRC, 191 SCRA 328), and that the filing of the complaint which asked for reinstatement plus backwages (Record, p. 20) is inconsistent with respondents’ defense of abandonment (Hua Bee Shirt Factory vs. NLRC, 188 SCRA 586).x[10]

It is trite to say that the factual findings of quasi-judicial bodies are generally binding as long as they are supported substantially by evidence in the record of the case.xi[11] This is especially so where, as here, the agency and its subordinate who heard the case in the first instance are in full agreement as to the facts.xii[12]

As regards the labor arbiter’s award which was affirmed by respondent NLRC, there is no reason to apply the rule that reinstatement may not be ordered if, as a result of the case between the parties, their relation is strained.xiii[13] Even at this late stage of this dispute, petitioner continues to reiterate its offer to reinstate private respondent.xiv[14] WHEREFORE, the petition is DISMISSED. SO ORDERED.

G.R. No. 120473 June 23, 1999

ULTRA VILLA FOOD HAUS, and/or ROSIE TIO, petitioners, vs.RENATO GENISTON, NATIONAL LABOR RELATIONS COMMISSION PRESIDING COMMISSIONER (4TH DIVISION), respondents.

KAPUNAN, J.:

This special civil action for certiorari stems from a complaint for illegal dismissal filed by Renato Geniston, private respondent herein, against the Ultra Villa Food Haus restaurant and/or its alleged owner Rosie Tio. Private respondent alleged that he was employed as a "do it all guy." acting as waiter, driver, and maintenance man, in said restaurant. His employment therein spanned from March 1, 1989 until he was dismissed on May 13, 1992. For his services, private respondent was paid P60.00 in 1989, P70.00 in 1990, P80.00 in 1991 and P90.00 when he was dismissed in 1992.

During the elections of May 11, 1992, private respondent acted as a Poll Watcher for the National Union of Christian Democrats. The counting of votes lasted until 3:00 p.m. the next day, May 12. Private respondent did not report for work on both days on account of his poll-watching.

Upon arriving home on May 12, private respondent discovered that Tio had phoned his mother that morning. Tio allegedly gave his mother "an inscrutable verbal lashing," and informed the latter that private respondent was dismissed from work. On May 13, 1992, private respondent went to Tio's residence to plead his case only to be subjected to a "brow beating" by Tio who even attempted to force him to sign a resignation letter.

Private respondent prayed that the Labor Arbiter order petitioner Tio to pay him overtime pay, premium pay, holiday pay, service incentive leave pay, salary differential and 13th month pay. He likewise prayed for reinstatement plus backwages or, in the alternative, separation pay, as well as moral damages, exemplary damages and attorney's fees.

Petitioner Rosie Tio, on the other hand, maintained that private respondent was her personal driver, not an employee of the Ultra Villa Food Haus. As petitioner's personal driver, private respondent was required to report for work at 7:00 a.m. to drive petitioner to Mandaue City where petitioner worked as the Manager of the CFC Corporation. Accordingly, private respondent was paid P65.00 a day which was gradually increased to P70.00 then to P90.00. Private respondent was likewise given free meals as well as 13th month pay at the end of the year. Petitioner denied dismissing private respondent whom she claimed abandoned his job.

Though well aware that May 12, 1992 was a holiday, petitioner called up private respondent that day to ask him to report for work as she had some important matters to attend to. Private respondent's wife, however, coldly told petitioner that private respondent was

helping in the counting of ballots. Petitioner was thus forced to hire another driver to replace private respondent. Private respondent came back a week after but only to collect his salary.

The Labor Arbiter found that private respondent was indeed petitioner's personal driver. Private respondent's claim that he was an employee of the Ultra Villa Food Haus was deemed by the Labor Arbiter to be a mere afterthought, considering that:

. . . . In his verified complaint, complainant states that the nature of his work position was a driver. If it [were] true that he was made to perform these functions as a waiter, it would be incongruous with the position of a driver. The nature of the position of a waiter is one that requires him to be at the place of work at all times while that of a driver, complainant had to be away from the restaurant at all times. At any rate, an admission is made that he was only a personal driver of the individual respondent. 1

The "admission" referred to above is contained in the mandatory conference order issued by the Labor Arbiter on January 10, 1994, to wit:

Also on this date, the following matters were threshed out:

That complainant started his employment with the individual respondent as the latter's personal driver on March 1, 1989 and the last day of his service was on May 13, 1992; 2

The Labor Arbiter concluded that private respondent, being a personal driver, was not entitled to overtime pay, premium pay, service incentive leave pay and 13th month pay. Private respondent's claim for salary differential was likewise denied since he "received a daily salary of P90.00 which is more than that set by law." 3

Neither was private respondent awarded separation pay. While the hiring of a substitute driver amounted to a constructive dismissal, the Labor Arbiter ruled that the same was justified in view of petitioner's "dire need" for the services of a driver.

The Labor Arbiter, however, noted that petitioner failed to comply with procedural due process in dismissing private respondent and thus ordered the former to indemnify the latter the amount of P1,000.00. The dispositive portion of the Labor Arbiter's decision states:

WHEREFORE in the light of the foregoing premises, judgment is rendered finding complainant's dismissal for a valid cause. Complaint is hereby ordered dismissed. However, respondent is directed to indemnify complainant the amount of P1,000.00 for failure to observe the due process requirement before dismissing the complainant.

SO ORDERED. 4

Both parties appealed the decision of the Labor Arbiter to the National Labor Relations Commission (NLRC).

Petitioner questioned the Labor Arbiter's decision insofar as it required her to pay private respondent the amount of P1.000.00. Petitioner maintained that private respondent abandoned his job, and was not constructively dismissed as found by the Labor Arbiter. Petitioner concluded that she could not be held liable for failing to observe procedural due process in dismissing private respondent, there being no dismissal to speak of.

On the other hand, private respondent denied admitting that he was employed as petitioner's personal driver. He alleged that what was admitted during the mandatory conference was that he was made to drive for the manager and his wife (petitioner) on top of his other duties which were necessary and desirable to petitioner's business. Private respondent likewise maintained his claim that he was unjustly dismissed, contending that his absence on May 11 and 12, 1992 did not warrant dismissal since those days were official holidays.

The NLRC found private respondent's arguments meritorious, and ordered petitioner to reinstate private respondent and to pay him the sum of P45,311.55 in backwages, overtime pay, premium pay for holiday and rest days, 13th month pay, and service incentive pay. Thus:

WHEREFORE, the respondents are hereby ordered to reinstate the complainant with backwages fixed for 6 months as he delayed in filing this case.

The respondents are likewise ordered to pay the complainant his overtime pay, holiday pay, premium pay for holiday and rest day, 13th month pay, and service incentive leave covering the period from October 28, 1990 to May 10, 1992.

Complainant's backwages up to the time of this Decision and his other monetary claims as computed by Nazarina C. Cabahug, Fiscal Examiner II of the Commission are the following:

xxx xxx xxx

SUMMARY

1) Backwages P 14,130.00

2) Overtime Pay P 22,060.00

3) Holiday Pay; Premium pay for Holiday P 1,554.00

4) Premium Pay for Rest Day P 1,683.00

5) 13th Month Pay P 5,484.55

6) Service Incentive Leave P 400.00311.55

SO ORDERED. 5

Acting on the parties' respective motions for reconsideration, the NLRC granted private respondent separation pay in lieu of reinstatement on account of the establishment's closure but denied his prayer for moral, actual and exemplary damages, and attorney's fees. The NLRC also denied petitioner's motion, reiterating its earlier ruling that private respondent was an employee of the Ultra Villa Food Haus.

Two issues are thus presented before this Court:

(1) Whether private respondent was an employee of the Ultra Villa Food Haus or the personal driver of petitioner; and

(2) Whether private respondent was illegally dismissed from employment.

I

The Solicitor General, in his "Manifestation and Motion In Lieu of Comment," agrees with petitioner's submission that private respondent was her personal driver. 6

We find that private respondent was indeed the personal driver of petitioner, and not an employee of the Ultra Villa Food Haus. There is substantial evidence to support such conclusion, namely:

(1) Private respondent's admission during the mandatory conference that he was petitioner's personal driver. 7

(2) Copies of the Ultra Villa Food Haus payroll which do not contain private respondent's name. 8

(3) Affidavits of Ultra Villa Food Haus employees attesting that private respondent was never an employee of said establishment. 9

(4) Petitioner Tio's undisputed allegation that she works as the branch manager of the CFC Corporation whose office is located in Mandaue City. This would support the Labor Arbiter's observation that private respondent' position as driver would be "incongruous" with his function as a waiter of Ultra Villa Food Haus. 10

(5) The Joint Affidavit of the warehouseman and warehouse checker of the CFC Corporation stating that:

Renato Geniston usually drive[s] Mrs. Tio from her residence to the office. Thereafter, Mr. Geniston will wait for Mrs. Tio in her car. Most of the time, Renato Geniston slept in the car of Mrs. Tio and will be awakened only when the latter will leave the office for lunch.

Mr. Geniston will again drive Mrs. Tio to the office at around 2:00 o'clock in the afternoon and thereafter the former will again wait for Mrs. Tio at the latter's car until Mrs. Tio will again leave the office to make her rounds at our branch office at the downtown area. 11

In contrast, private respondent has not presented any evidence other than his self-serving allegation to show that he was employed in the Ultra Villa Food Haus. On this issue, therefore, the evidence weighs heavily in petitioner's favor. The Labor Arbiter thus correctly ruled that private respondent was petitioner's personal driver and not an employee of the subject establishment.

Accordingly, the terms and conditions of private respondent's employment are governed by Chapter III, Title III, Book III of the Labor Code 12 as well as by the pertinent provisions of the Civil Code. 13 Thus, Article 141 of the Labor Code provides:

Art. 141. Coverage. — This Chapter shall apply to all persons rendering services in households for compensation.

Domestic or household service" shall mean services in the employers home which is usually necessary or desirable for the maintenance and enjoyment thereof and includes ministering to the personal comfort and convenience of the members of the employers household, including services of family drivers. (Emphasis supplied.)

Chapter III, Title III, Book III, however, is silent on the grant of overtime pay, holiday pay, premium pay and service incentive leave to those engaged in the domestic or household service.

Moreover, the specific provisions mandating these benefits are found in Book III, Title I of the Labor Code, 14 and Article 82, which defines the scope of the application of these provisions, expressly excludes domestic helpers from its coverage:

Art. 82. Coverage. — The provision of this title shall apply to employees in all establishments and undertakings whether for profit or not; but not to government employees, managerial employees, field personnel, members of the family of the employer who are dependent on him for support, domestic helpers, persons in the personal service of another,

and workers who are paid by results as determined by the Secretary of Labor in appropriate regulations. (Emphasis supplied.)

The limitations set out in the above article are echoed in Book III of the Omnibus Rules Implementing the Labor Code. 15

Clearly then, petitioner is not obliged by law to grant private respondent any of these benefits.

Employing the same line of analysis, it would seem that private respondent is not entitled to 13th month pay. The Revised Guidelines on the Implementation of the 13th Month Pay Law also excludes employers of household helpers from the coverage of Presidential Decree No. 851, thus:

2. Exempted Employers

The following employers are still not covered by P.D. No. 851:

a. . . .;

b. Employers of household helpers . . .;

c. . . .,

d. . . . .

Nevertheless, we deem it just to award private respondent 13th month pay in view of petitioner's practice of according private respondent such benefit. Indeed, petitioner admitted that she gave private respondent 13th month pay every December. 16

II

We come now to the issue of private respondent's dismissal. Petitioner submits that private respondent abandoned his job, referring to work as an election watcher instead.

We do not agree. To constitute abandonment, two requisites must concur: (1) the failure to report to work or absence without valid or justifiable reason, and (2) a clear intention to sever the employer-employee relationship as manifested by some over acts, with the second requisites as the more determinative factor. 17 The burden of proving abandonment as a just cause for dismissal is on the employer. 18 Petitioner failed to discharge this burden. The only evidence adduced by petitioner to prove abandonment is her affidavit, the pertinent portion of which states:

On May 12, 1992, a day after the election, complainant was again absent. Since it was a holiday and I have no work on that day, I just did not

bother to call up complainant. Although the following day was still a holiday, I called up complainant to inform him that he has to report for work as I will report to the office to do some important things there. Unfortunately, complainant's wife instead coldly told me that complainant was fetched by the latter's uncle to help in the counting of ballots. I then told his wife to let complainant choose between his job with me or that of election watcher. The following day, I was informed again by complainant's wife that he is no longer interested to work with me as he is earning more as election watcher. I was really disenchanted to know his respon[se] as all of a sudden, I have no driver to drive me to my place of work. Nevertheless, I have no other choice to accept it as I can not also forced him to continue working with me. Hence, I was really inconvenience for about a week due to the absence of a driver.1âwphi1.nêt

Complainant then collected his salary after one week's absence. 19

It is quite unbelievable that private respondent would leave a stable and relatively well paying job as petitioner's family driver to work as an election watcher. Though the latter may pay more in a day, elections in this country are so far in between that it is unlikely that any person would abandon his job to embark on a career as an election watcher, the functions of which are seasonal and temporary in nature. Consequently, we do not find private respondent to have abandoned his job. His dismissal from petitioner's employ being unjust, petitioner is entitled to an indemnity under Article 149 of the Labor Code: 20

Art. 149. Indemnity for unjust termination of services. — If the period of household service is fixed, neither the employer nor the househelper may terminate the contract before the expiration of the term, except for a just cause. If the househelper is unjustly dismissed, he or she shall be paid the compensation already earned plus that for fifteen (15) days by way of indemnity.

If the househelper leaves without justifiable reason he or she shall forfeit any unpaid salary due him or her not exceeding fifteen (15) days. (Emphasis supplied.)

Petitioner likewise concedes that she failed to comply with due process in dismissing private respondent since private respondent had already abandoned his job. 21 As we have shown earlier however, petitioner's theory of abandonment has no leg to stand on, and with it, her attempts to justify her failure to accord due process must also fail. Accordingly, private respondent is ordered to pay private respondent the sum of P1,000.00. 22

WHEREFORE, the decision of the National Labor Relations Commission is hereby REVERSED and a new one entered declaring:

(1) Private respondent Renato Geniston, the personal driver of petitioner Rosie Tio, and not an employee of the Ultra Villa Food Haus;

(2) The dismissal of private respondent to be without a valid cause and without due process. Accordingly, petitioner Rosie Tio is ordered to pay private respondent;

(a) Thirteenth Month Pay to be computed in accordance with the Rules and Regulations, and the Revised Guidelines, Implementing Presidential Decree No. 851;

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(b) Indemnity equal to 15 days of his salary as personal driver at the time of his unjust dismissal; and

(c) Indemnity in the sum of P1,000.00.

SO ORDERED.