Republic of the Philippines
SUPREME COURT
Baguio

SECOND DIVISION

G.R. No. 192514               April 18, 2012

D.M. CONSUNJI, INC. and/or DAVID M. CONSUNJI, Petitioners,
vs.
ESTELITO L. JAMIN, Respondent.

D E C I S I O N

BRION, J.:

We resolve the present appeal1 from the decision2 dated February 26, 2010 and the resolution3 dated June 3, 2010 of the Court of Appeals (CA) in CA-G.R. SP No. 100099.

The Antecedents

On December 17, 1968, petitioner D.M. Consunji, Inc. (DMCI), a construction company, hired respondent Estelito L. Jamin as a laborer. Sometime in 1975, Jamin became a helper carpenter. Since his initial hiring, Jaminís employment contract had been renewed a number of times.4 On March 20, 1999, his work at DMCI was terminated due to the completion of the SM Manila project. This termination marked the end of his employment with DMCI as he was not rehired again.

On April 5, 1999, Jamin filed a complaint5 for illegal dismissal, with several money claims (including attorneyís fees), against DMCI and its President/General Manager, David M. Consunji. Jamin alleged that DMCI terminated his employment without a just and authorized cause at a time when he was already 55 years old and had no independent source of livelihood. He claimed that he rendered service to DMCI continuously for almost 31 years. In addition to the schedule of projects (where he was assigned) submitted by DMCI to the labor arbiter,6 he alleged that he worked for three other DMCI projects: Twin Towers, Ritz Towers, from July 29, 1980 to June 12, 1982; New Istana Project, B.S.B. Brunei, from June 23, 1982 to February 16, 1984; and New Istana Project, B.S.B. Brunei, from January 24, 1986 to May 25, 1986.

DMCI denied liability. It argued that it hired Jamin on a project-to-project basis, from the start of his engagement in 1968 until the completion of its SM Manila project on March 20, 1999 where Jamin last worked. With the completion of the project, it terminated Jaminís employment. It alleged that it submitted a report to the Department of Labor and Employment (DOLE) everytime it terminated Jaminís services.

The Compulsory Arbitration Rulings

In a decision dated May 27, 2002,7 Labor Arbiter Francisco A. Robles dismissed the complaint for lack of merit. He sustained DMCIís position that Jamin was a project employee whose services had been terminated due to the completion of the project where he was assigned. The labor arbiter added that everytime DMCI rehired Jamin, it entered into a contract of employment with him. Moreover, upon completion of the phase of the project for which Jamin was hired or upon completion of the project itself, the company served a notice of termination to him and a termination report to the DOLE Regional Office. The labor arbiter also noted that Jamin had to file an application if he wanted to be re-hired.

On appeal by Jamin, the National Labor Relations Commission (NLRC), in its decision of April 18, 2007,8 dismissed the appeal and affirmed the labor arbiterís finding that Jamin was a project employee. Jamin moved for reconsideration, but the NLRC denied the motion in a resolution dated May 30, 2007.9 Jamin sought relief from the CA through a petition for certiorari under Rule 65 of the Rules of Court.

The CA Decision

On February 26, 2010, the CA Special Fourth Division rendered the disputed decision10 reversing the compulsory arbitration rulings. It held that Jamin was a regular employee. It based its conclusion on: (1) Jaminís repeated and successive rehiring in DMCIís various projects; and (2) the nature of his work in the projects ó he was performing activities necessary or desirable in DMCIís construction business. Invoking the Courtís ruling in an earlier case,11 the CA declared that the pattern of Jaminís rehiring and the recurring need for his services are sufficient evidence of the necessity and indispensability of such services to DMCIís business or trade, a key indicator of regular employment. It opined that although Jamin started as a project employee, the circumstances of his employment made it regular or, at the very least, has ripened into a regular employment.

The CA considered the project employment contracts Jamin entered into with DMCI for almost 31 years not definitive of his actual status in the company. It stressed that the existence of such contracts is not always conclusive of a workerís employment status as this Court explained in Liganza v. RBL Shipyard Corporation, et al.12 It found added support from Integrated Contractor and Plumbing Works, Inc. v. NLRC,13 where the Court said that while there were several employment contracts between the worker and the employer, in all of them, the worker performed tasks which were usually necessary or desirable in the usual business or trade of the employer and, a review of the workerís assignments showed that he belonged to a work pool, making his employment regular.

Contrary to DMCIís submission and the labor arbiterís findings, the CA noted that DMCI failed to submit a report to the DOLE Regional Office everytime Jaminís employment was terminated, as required by DOLE Policy Instructions No. 20. The CA opined that DMCIís failure to submit the reports to the DOLE is an indication that Jamin was not a project employee. It further noted that DOLE Department Order No. 19, Series of 1993, which superseded DOLE Policy Instructions No. 20, provides that the termination report is one of the indicators of project employment.14

Having found Jamin to be a regular employee, the CA declared his dismissal illegal as it was without a valid cause and without due process. It found that DMCI failed to provide Jamin the required notice before he was dismissed. Accordingly, the CA ordered Jaminís immediate reinstatement with backwages, and without loss of seniority rights and other benefits.

DMCI moved for reconsideration, but the CA denied the motion in its resolution of June 3, 2010.15 DMCI is now before the Court through a petition for review on certiorari under Rule 45 of the Rules of Court.16

The Petition

DMCI seeks a reversal of the CA rulings on the ground that the appellate court committed a grave error in annulling the decisions of the labor arbiter and the NLRC. It presents the following arguments:

1. The CA misapplied the phrase "usually necessary or desirable in the usual business or trade of the employer" when it considered Jamin a regular employee. The definition of a regular employee under Article 280 of the Labor Code does not apply to project employment or "employment which has been fixed for a specific project," as interpreted by the Supreme Court in Fernandez v. National Labor Relations Commission17 and D.M. Consunji, Inc. v. NLRC.18 It maintains the same project employment methodology in its business operations and it cannot understand why a different ruling or treatment would be handed down in the present case.

2. There is no work pool in DMCIís roster of project employees. The CA erred in insinuating that Jamin belonged to a work pool when it cited Integrated Contractor and Plumbing Works, Inc. ruling.19 At any rate, Jamin presented no evidence to prove his membership in any work pool at DMCI.

3. The CA misinterpreted the rules requiring the submission of termination of employment reports to the DOLE. While the report is an indicator of project employment, as noted by the CA, it is only one of several indicators under the rules.20 In any event, the CA penalized DMCI for a few lapses in its submission of reports to the DOLE with a "very rigid application of the rule despite the almost unanimous proofs surrounding the circumstances of private respondent being a project employee as shown by petitionerís documentary evidence."21

4. The CA erred in holding that Jamin was dismissed without due process for its failure to serve him notice prior to the termination of his employment. As Jamin was not dismissed for cause, there was no need to furnish him a written notice of the grounds for the dismissal and neither is there a need for a hearing. When there is no more job for Jamin because of the completion of the project, DMCI, under the law, has the right to terminate his employment without incurring any liability. Pursuant to the rules implementing the Labor Code,22 if the termination is brought about by the completion of the contract or phase thereof, no prior notice is required.

Finally, DMCI objects to the CAís reversal of the findings of the labor arbiter and the NLRC in the absence of a showing that the labor authorities committed a grave abuse of discretion or that evidence had been disregarded or that their rulings had been arrived at arbitrarily.

The Case for Jamin

In his Comment (to the Petition),23 Jamin prays that the petition be denied for having been filed out of time and for lack of merit.

He claims, in support of his plea for the petitionís outright dismissal, that DMCI received a copy of the CA decision (dated February 26, 2010) on March 4, 2010, as stated by DMCI itself in its motion for reconsideration of the decision.24 Since DMCI filed the motion with the CA on March 22, 2010, it is obvious, Jamin stresses, that the motion was filed three days beyond the 15-day reglementary period, the last day of which fell on March 19, 2010. He maintains that for this reason, the CAís February 26, 2010 decision had become final and executory, as he argued before the CA in his Comment and Opposition (to DMCIís Motion for Reconsideration).25

On the merits of the case, Jamin submits that the CA committed no error in nullifying the rulings of the labor arbiter and the NLRC. He contends that DMCI misread this Courtís rulings in Fernandez v. National Labor Relations Commission, et al.26 and D.M. Consunji, Inc. v. NLRC,27 cited to support its position that Jamin was a project employee.

Jamin argues that in Fernandez, the Court explained that the proviso in the second paragraph of Article 280 of the Labor Code relates only to casual employees who shall be considered regular employees if they have rendered at least one year of service, whether such service is continuous or broken. He further argues that in Fernandez, the Court held that inasmuch as the documentary evidence clearly showed gaps of a month or months between the hiring of Ricardo Fernandez in the numerous projects where he was assigned, it was the Courtís conclusion that Fernandez had not continuously worked for the company but only intermittently as he was hired solely for specific projects.28 Also, in Fernandez, the Court affirmed its rulings in earlier cases that "the failure of the employer to report to the [nearest] employment office the termination of workers everytime a project is completed proves that the employees are not project employees."29

Jamin further explains that in the D.M. Consunji, Inc. case, the company deliberately omitted portions of the Courtís ruling stating that the complainants were not claiming that they were regular employees; rather, they were questioning the termination of their employment before the completion of the project at the Cebu Super Block, without just cause and due process.30

In the matter of termination reports to the DOLE, Jamin disputes DMCIís submission that it committed only few lapses in the reportorial requirement. He maintains that even the NLRC noted that there were no termination reports with the DOLE Regional Office after every completion of a phase of work, although the NLRC considered that the report is required only for statistical purposes. He, therefore, contends that the CA committed no error in holding that DMCIís failure to submit reports to the DOLE was an indication that he was not a project employee.

Finally, Jamin argues that as a regular employee of DMCI for almost 31 years, the termination of his employment was without just cause and due process.

The Courtís Ruling

The procedural issue

Was DMCIís appeal filed out of time, as Jamin claims, and should have been dismissed outright? The records support Jaminís submission on the issue.

DMCI received its copy of the February 26, 2010 CA decision on March 4, 2010 (a Thursday), as indicated in its motion for reconsideration of the decision itself,31 not on March 5, 2010 (a Friday), as stated in the present petition.32 The deadline for the filing of the motion for reconsideration was on March 19, 2010 (15 days from receipt of copy of the decision), but it was filed only on March 22, 2010 or three days late. Clearly, the motion for reconsideration was filed out of time, thereby rendering the CA decision final and executory.

Necessarily, DMCIís petition for review on certiorari is also late as it had only fifteen (15) days from notice of the CA decision to file the petition or the denial of its motion for reconsideration filed in due time.33 The reckoning date is March 4, 2010, since DMCIís motion for reconsideration was not filed in due time. We see no point in exercising liberality and disregarding the late filing as we did in Orozco v. Fifth Division of the Court of Appeals,34 where we ruled that "[t]echnicality should not be allowed to stand in the way of equitably and completely resolving the rights and obligations of the parties." The petition lacks merit for its failure to show that the CA committed any reversible error or grave abuse of discretion when it reversed the findings of the labor arbiter and the NLRC.

As earlier mentioned, Jamin worked for DMCI for almost 31 years, initially as a laborer and, for the most part, as a carpenter. Through all those years, DMCI treated him as a project employee, so that he never obtained tenure. On the surface and at first glance, DMCI appears to be correct. Jamin entered into a contract of employment (actually an appointment paper to which he signified his conformity) with DMCI either as a field worker, a temporary worker, a casual employee, or a project employee everytime DMCI needed his services and a termination of employment paper was served on him upon completion of every project or phase of the project where he worked.35 DMCI would then submit termination of employment reports to the DOLE, containing the names of a number of employees including Jamin.36 The NLRC and the CA would later on say, however, that DMCI failed to submit termination reports to the DOLE.

The CA pierced the cover of Jaminís project employment contract and declared him a regular employee who had been dismissed without cause and without notice. To reiterate, the CAís findings were based on: (1) Jaminís repeated and successive engagements in DMCIís construction projects, and (2) Jaminís performance of activities necessary or desirable in DMCIís usual trade or business.

We agree with the CA. In Liganza v. RBL Shipyard Corporation,37 the Court held that "[a]ssuming, without granting[,] that [the] petitioner was initially hired for specific projects or undertakings, the repeated re-hiring and continuing need for his services for over eight (8) years have undeniably made him a regular employee." We find the Liganza ruling squarely applicable to this case, considering that for almost 31 years, DMCI had repeatedly, continuously and successively engaged Jaminís services since he was hired on December 17, 1968 or for a total of 38 times ó 35 as shown by the schedule of projects submitted by DMCI to the labor arbiter38 and three more projects or engagements added by Jamin, which he claimed DMCI intentionally did not include in its schedule so as to make it appear that there were wide gaps in his engagements. One of the three projects was local, the Ritz Towers,39 from July 29, 1980 to June 12, 1982, while the other two were overseas ó the New Istana Project in Brunei, Darussalam, from June 23, 1982 to February 16, 1984;40 and again, the New Istana Project, from January 24, 1986 to May 25, 1986.41

We reviewed Jaminís employment contracts as the CA did and we noted that while the contracts indeed show that Jamin had been engaged as a project employee, there was an almost unbroken string of Jaminís rehiring from December 17, 1968 up to the termination of his employment on March 20, 1999. While the history of Jaminís employment (schedule of projects)42 relied upon by DMCI shows a gap of almost four years in his employment for the period between July 28, 1980 (the supposed completion date of the Midtown Plaza project) and June 13, 1984 (the start of the IRRI Dorm IV project), the gap was caused by the companyís omission of the three projects above mentioned.

For not disclosing that there had been other projects where DMCI engaged his services, Jamin accuses the company of suppressing vital evidence that supports his contention that he rendered service in the companyís construction projects continuously and repeatedly for more than three decades. The non-disclosure might not have constituted suppression of evidence ó it could just have been overlooked by the company ó but the oversight is unfair to Jamin as the non-inclusion of the three projects gives the impression that there were substantial gaps not only of several months but years in his employment with DMCI.

Thus, as Jamin explains, the Ritz Tower Project (July 29, 1980 to June 12, 1982) and the New Istana Project (June 23, 1982 to February 16, 1984) would explain the gap between the Midtown Plaza project (September 3, 1979 to July 28, 1980) and the IRRI Dorm IV project (June 13, 1984 to March 12, 1985) and the other New Istana Project (January 24, 1986 to May 25, 1986) would explain the gap between P. 516 Hanger (September 13, 1985 to January 23, 1986) and P. 516 Maint (May 26, 1986 to November 18, 1987).

To reiterate, Jaminís employment history with DMCI stands out for his continuous, repeated and successive rehiring in the companyís construction projects. In all the 38 projects where DMCI engaged Jaminís services, the tasks he performed as a carpenter were indisputably necessary and desirable in DMCIís construction business. He might not have been a member of a work pool as DMCI insisted that it does not maintain a work pool, but his continuous rehiring and the nature of his work unmistakably made him a regular employee. In Maraguinot, Jr. v. NLRC,43 the Court held that once a project or work pool employee has been: (1) continuously, as opposed to intermittently, rehired by the same employer for the same tasks or nature of tasks; and (2) these tasks are vital, necessary and indispensable to the usual business or trade of the employer, then the employee must be deemed a regular employee.

Further, as we stressed in Liganza,44 "[r]espondent capitalizes on our ruling in D.M. Consunji, Inc. v. NLRC which reiterates the rule that the length of service of a project employee is not the controlling test of employment tenure but whether or not Ďthe 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.í"

"Surely, length of time is not the controlling test for project employment. Nevertheless, it is vital in determining if the employee was hired for a specific undertaking or tasked to perform functions vital, necessary and indispensable to the usual business or trade of the employer. Here, [private] respondent had been a project employee several times over. His employment ceased to be coterminous with specific projects when he was repeatedly re-hired due to the demands of petitionerís business."45 Without doubt, Jaminís case fits squarely into the employment situation just quoted.

The termination reports

With our ruling that Jamin had been a regular employee, the issue of whether DMCI submitted termination of employment reports, pursuant to Policy Instructions No. 20 (Undated46 ), as superseded by DOLE Department Order No. 19 (series of 1993), has become academic. DOLE Policy Instructions No. 20 provides in part:

Project employees are not entitled to termination pay if they are terminated as a result of the completion of the project or any phase thereof in which they are employed, regardless of the number of projects in which they have been employed by a particular construction company. Moreover, the company is not required to obtain a clearance from the Secretary of Labor in connection with such termination. What is required of the company is a report to the nearest Public Employment Office for statistical purposes.47

To set the records straight, DMCI indeed submitted reports to the DOLE but as pointed out by Jamin, the submissions started only in 1992.48 DMCI explained that it submitted the earlier reports (1982), but it lost and never recovered the reports. It reconstituted the lost reports and submitted them to the DOLE in October 1992; thus, the dates appearing in the reports.49

Is David M. Consunji, DMCIís
President/General Manager, liable
for Jaminís dismissal?

While there is no question that the company is liable for Jaminís dismissal, we note that the CA made no pronouncement on whether DMCIís President/General Manager, a co-petitioner with the company, is also liable.50 Neither had the parties brought the matter up to the CA nor with this Court. As there is no express finding of Mr. Consunjiís involvement in Jaminís dismissal, we deem it proper to absolve him of liability in this case.

As a final point, it is well to reiterate a cautionary statement we made in Maraguinot,51 thus:

At this time, we wish to allay any fears that this decision unduly burdens an employer by imposing a duty to re-hire a project employee even after completion of the project for which he was hired. The import of this decision is not to impose a positive and sweeping obligation upon the employer to re-hire project employees. What this decision merely accomplishes is a judicial recognition of the employment status of a project or work pool employee in accordance with what is fait accompli, i.e., the continuous re-hiring by the employer of project or work pool employees who perform tasks necessary or desirable to the employerís usual business or trade.

In sum, we deny the present appeal for having been filed late and for lack of any reversible error.1‚wphi1 We see no point in extending any liberality by disregarding the late filing as the petition lacks merit.

WHEREFORE, premises considered, the petition is hereby DENIED for late filing and for lack of merit. The decision dated February 26, 2010 and the resolution dated June 3, 2010 of the Court of Appeals are AFFIRMED. Petitioner David M. Consunji is absolved of liability in this case.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

DIOSDADO M. PERALTA*
Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice

MARIA LOURDES P. A. SERENO
Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courtís Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courtís Division.

RENATO C. CORONA
Chief Justice


Footnotes

* Additional Member vice Justice Bienvenido L. Reyes per Raffle dated March 28, 2012.

1 Rollo, pp. 3-23; filed pursuant to Rule 45 of the Rules of Court.

2 Id. at 26-37; penned by Associate Justice Stephen C. Cruz, and concurred in by former Associate Justice Bienvenido L. Reyes (now a Supreme Court Associate Justice) and Associate Justice Jaapar B. Dimaampao.

3 Id. at 46-47.

4 Supra note 2, at 2-31; Schedule of DMCI projects where Jamin worked.

5 Rollo, pp. 49-50.

6 Id. at 60.

7 Id. at 206-217.

8 Id. at 249-253.

9 Id. at 264.

10 Supra note 2.

11 Baguio Country Club Corporation v. NLRC, G.R. No. 71664, February 28, 1992, 206 SCRA 643.

12 G.R. No. 159862, October 17, 2006, 504 SCRA 678.

13 503 Phil. 875 (2005).

14 Section 2.2(e)

15 Supra note 3.

16 Supra note 1.

17 G.R. No. 106090, February 28, 1994, 230 SCRA 460.

18 401 Phil. 635 (2000).

19 Supra note 13.

20 Supra note 14.

21 Supra note 1, at 16-17.

22 OMNIBUS RULES IMPLEMENTING THE LABOR CODE, Book VI, Rule I, Sec. 1(d)(iii), last paragraph, not Book V, Rule XXIII, Section 2(c), as cited.

23 Rollo, pp. 328-348.

24 Id. at 38, paragraph 1.

25 Id. at 350-351.

26 Supra note 17.

27 Supra note 18.

28 Supra note 17, at 465.

29 Id. at 468.

30 Supra note 18, at 642.

31 Supra note 24.

32 Supra note 1, at 2.

33 RULES OF COURT, Rule 45, Section 1.

34 497 Phil. 227 (2005), citing Buenaobra v. Lim King Guan, 465 Phil. 290 (2004).

35 Rollo, pp. 71-140.

36 Id. at 141-157.

37 Supra note 12, at 689.

38 Supra note 6.

39 Rollo, p. 171; Certification of Premium Payments, SSS Makati Branch.

40 Id. at 175-196; Jaminís Payslips for the New Istana Project.

41 Id. at 197-199; Payslips for New Istana Project (second phase).

42 Supra note 6.

43 348 Phil. 580 (1998).

44 Supra note 12, at 689.

45 Ibid.

46 VICENTE B. FOZ, THE LABOR CODE OF THE PHILIPPINES and ITS IMPLEMENTING RULES AND REGULATIONS, 7th Edition, 1979, pp. 134-135, but cited as Policy Instructions No. 20 (Series of 1977) in Raycor Aircontrol Systems, Inc. v. NLRC, 330 Phil. 306, 315 (1996).

47 Id., paragraph 4.

48 Rollo, pp. 141-147.

49 Id. at 243; DMCIís Answer to and/or Comment on the Appeal, p. 8.

50 Supra note 2, at 37.

51 Supra note 43 at 605.


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