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G.R. No. 159371, July 29, 2013 - D. M. CONSUNJI CORPORATION, Petitioner, v. ROGELIO P. BELLO, Respondent.

G.R. No. 159371, July 29, 2013 - D. M. CONSUNJI CORPORATION, Petitioner, v. ROGELIO P. BELLO, Respondent.



G.R. No. 159371, July 29, 2013

D. M. CONSUNJI CORPORATION, Petitioner, v. ROGELIO P. BELLO, Respondent.




For the resignation of an employee to be a viable defense in an action for illegal dismissal, an employer must prove that the resignation was voluntary, and its evidence thereon must be clear, positive and convincing. The employer cannot rely on the weakness of the employee’s evidence.

The Case

We now review the decision promulgated on February 18, 2003,1 whereby the Court of Appeals (CA) granted the petition for certiorari of respondent Rogelio P. Bello, reversed and set aside the resolutions dated January 3, 20022 and February 26, 20023 of the National Labor Relations Commission (NLRC), and reinstated the decision rendered on January 9, 2001 by the Executive Labor Arbiter (ELA) declaring Bello to have been illegally dismissed and ordering petitioner D.M. Consunji Corporation (DMCI) to reinstate him, and to pay him full backwages reckoned from the time of his dismissal until his actual reinstatement. 4cralaw virtualaw library


Bello brought a complaint for illegal dismissal and damages against DMCI and/or Rachel Consunji. In his position paper, he claimed that DMCI had employed him as a mason without any interruption from February 1, 1990 until October 10, 1997 at an hourly rate of P25.081; that he had been a very diligent and devoted worker and had served DMCI as best as he could and without any complaints; that he had never violated any company rules; that his job as a mason had been necessary and desirable in the usual business or trade of DMCI; that he had been diagnosed to be suffering from pulmonary tuberculosis, thereby necessitating his leave of absence; that upon his recovery, he had reported back to work, but DMCI had refused to accept him and had instead handed to him a termination paper; that he had been terminated due to “RSD” effective November 5, 1997; that he did not know the meaning of “RSD” as the cause of his termination; that the cause had not been explained to him; that he had not been given prior notice of his termination; that he had not been paid separation pay as mandated by law; that at that time of his dismissal, DMCI’s projects had not yet been completed; and that even if he had been terminated due to an authorized cause, he should have been given at least one month pay or at least one-half month pay for every year of service he had rendered, whichever was higher.

In its position paper submitted on March 6, 2000,5 DMCI contended that Bello had only been a project employee, as borne out by his contract of employment and appointment papers; that after his termination from employment, it had complied with the reportorial requirements of the Department of Labor and Employment (DOLE) pursuant to the mandates of Policy Instruction No. 20, as revised by Department Order No. 19, series of 1993; and that although his last project employment contract had been set to expire on October 7, 1997, he had tendered his voluntary resignation on October 4, 1997 for health reasons that had rendered him incapable of performing his job, per his resignation letter.

On January 9, 2001, ELA Isabel G. Panganiban-Ortiguerra rendered a decision,6 disposing thusly:cralawlibrary

WHEREFORE, premises considered, judgment is hereby rendered declaring respondent company DM Consunji, Inc., guilty of illegal dismissal and it is hereby ordered to reinstate complainant to his former position without loss of seniority rights and to pay him full backwages reckoned from the time of his dismissal up to his actual reinstatement which as of this date is in the amount of P232,648,81.


DMCI appealed to the NLRC, citing the following grounds, namely:cralawlibrary



On January 3, 2002, the NLRC issued its resolution setting aside the decision of ELA Panganiban-Ortiguerra, and dismissing Bello’s claims,8viz:cralawlibrary

Addressing the first issue on appeal, a cursory reading of the records indeed show that contrary to the declaration of the Labor Arbiter that complainant’s years of service was without any gaps and was continuous to warrant regularity of employment, the same was not so. In fine what was clearly illustrated by respondents in their appeal memorandum by way of matrix, there were considerable and substantial gaps between complainant’s employment. In addition, it is of judicial notice that respondent company, being one of the biggest and well known construction company, as even admitted by the Executive Labor Arbiter, cater to so many clients/projects. So much that it is not improbable that complainant may be hired continuously one after the other in different projects considering that he is a mason whose functions are more than highly needed in construction. Even as it is, the matrix presented by respondents still showed considerable gaps. The fact that sometimes complainant’s contract is extended beyond approximated date of finish contract, do not in anyway (sic) readily make his employment regular. For it is common among construction projects for a certain phase of work to be extended, depending on varied factors such as weather, availability of materials, whims and caprice of clients and many more. So much so, it was error on the part of the Executive Labor Arbiter to take this against respondents and pin it as another determining factor of regularity of employment. Neither can it be said that as mason complainant’s function is necessary and desirable to respondents business hence, he is a regular employee. x x x we simply cannot close our eyes to the reality that complainant is a project employee and that the case she is citing does not fit herein as it is akin to a square peg being in a round hole. To top it all, records show that respondents have faithfully complied with the provision of Policy Instruction No. 20 on project employees.

Lastly, records do show that complainant executed a voluntary resignation. And while there may indeed be a slight difference in the signature and handwriting, this do not readily mean that complainant did not execute the same as was the inclination of the Executive Labor Arbiter. For one, she has no expertise to determine so. Secondly, and [as] was validly pointed out, complainant if indeed he was coerced, cheated or shortchanged, would ordinarily almost immediately seek redress. In the case at bar, he sat it out and waited two (2) years. Is this case, an afterthought? We believe so.

ACCORDINGLY, finding merit in respondent’s appeal, the decision of the Executive Labor Arbiter is hereby SET ASIDE and this case DISMISSED for want of merits (sic).


Bello moved for a reconsideration,9 but the NLRC denied his motion on February 26, 2002. 10cralaw virtualaw library

Ruling of the CA

Bello then assailed the dismissal of his complaint via petition for certiorari,11 averring that the NLRC committed grave abuse of discretion amounting to lack of jurisdiction in upholding DMCI’s appeal, in setting aside the decision of the ELA, and in dismissing his complaint and denying his motion for reconsideration.

On February 18, 2003, the CA promulgated its assailed decision,12 finding Bello to have acquired the status of a regular employee although he had started as a project employee of DMCI by his having been employed as a mason who had performed tasks that had been usually necessary and desirable in the business or trade of DMCI continuously from February 1, 1990 to October 5, 1997; that his repeated re-hiring and the continuing need for his services over a long span of time had undeniably made him a regular employee; that DMCI’s compliance with the reportorial requirements under Policy Instruction No. 20 (by which the project employer was required to make a report to the Department of Labor and Employment of every termination of its projects) could not preclude the acquisition of tenurial security by the employee; that the cause of his dismissal after he had acquired the status of a regular employee – the completion of the phase of work – could not be considered as a valid cause under Article 282 of the Labor Code; and that his supposedly voluntary resignation could not be accorded faith after the ELA had concluded that the handwriting in the supposed resignation letter was “undeniably different from that of complainant,” a fact “not rebutted by herein respondents.”

DMCI sought the reconsideration of the decision, but the CA denied its motion on July 24, 2003.13cralaw virtualaw library


Hence, DMCI appeals, presenting the following issues for our consideration and resolution, to wit:cralawlibrary



Ruling of the Court

The petition for review lacks merit.

The provision that governs the first issue is Article 280 of the Labor Code, which is quoted hereunder as to its relevant part, viz:cralawlibrary

Article 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 and desirable to 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 service to be performed is seasonal in nature and the employment is for the duration of the season. (Emphasis supplied)

x x x x

A project employee is, therefore, one who is hired for a specific project or undertaking, and the completion or termination of such project or undertaking has been determined at the time of engagement of the employee.14 In the context of the law, Bello was a project employee of DMCI at the beginning of their employer-employee relationship. The project employment contract they then entered into clearly gave notice to him at the time of his engagement about his employment being for a specific project or phase of work. He was also thereby notified of the duration of the project, and the determinable completion date of the project.

However, the history of Bello’s appointment and employment showed that he performed his tasks as a mason in DMCI’s various constructions projects, as the following tabulation indicates, to wit:15cralaw virtualaw library

Duration of Employment
Actual Termination
SM Megamall
2-01-90 to 05-01-90
1 & 1-A
10-28-91 to 01-28-91
2 & 2-A
05-29-92 to 08-29-92
3 & 3-A
09-11-92 to 12-11-92
4 & 4-A
Golden Bay I
06-17-93 to 09-17-93
5 & 5-A
Golden Bay II
04-18-94 to 07-18-94
6& 6-A
09-07-94 to 10-07-94
7 & 7-A
02-10-96 to 03-10-96
8 & 8-A
09-07-97 to 10-07-97
9 & 9-A

Based on the foregoing, we affirm the CA’s conclusion that Bello acquired in time the status of a regular employee by virtue of his continuous work as a mason of DMCI. The work of a mason like him – a skilled workman working with stone or similar material16 – was really related to building or constructing, and was undoubtedly a function necessary and desirable to the business or trade of one engaged in the construction industry like DMCI. His being hired as a mason by DMCI in not one, but several of its projects revealed his necessity and desirability to its construction business.

It is settled that the extension of the employment of a project employee long after the supposed project has been completed removes the employee from the scope of a project employee and makes him a regular employee.17 In this regard, the length of time of the employee’s service, while not a controlling determinant of project employment, is a strong factor in determining whether he was hired for a specific undertaking or in fact tasked to perform functions vital, necessary and indispensable to the usual business or trade of the employer.18 On the other hand, how DMCI chose to categorize the employment status of Bello was not decisive of his employment status. What were of consequence in that respect were his actual functions and the length of his stay with DMCI. Verily, the principal test for determining whether an employee is a project employee, as distinguished from a regular employee, is whether or not he is assigned to carry out a specific project or undertaking, the duration and scope of which are specified at the time he is engaged for the project.19cralaw virtualaw library

Still, DMCI contends that Bello’s services as a mason were deemed necessary and desirable in its usual business only for the period of time it had taken it to complete the project.

The contention may be correct if each engagement of Bello as a mason over the span of eight years was to be treated separately. The contention cannot be upheld, however, simply because his successive re-engagement in order to perform the same kind of work as a mason firmly manifested the necessity and desirability of his work in DMCI’s usual business of construction.20cralaw virtualaw library

Lastly, DMCI claims that Bello voluntarily resigned from work. It presented his supposed handwritten resignation letter to support the claim. However, Bello denied having resigned, explaining that he had signed the letter because DMCI had made him believe that the letter was for the purpose of extending his sick leave.

In resolving the matter against DMCI, the CA relied on the conclusion by ELA Panganiban-Ortiguerra that she could not give credence to the voluntary resignation for health reasons in the face of Bello’s declaration that he had been led to sign the letter to obtain the extension of his leave of absence due to illness, and on her observation that “the handwriting in the supposed resignation letter is undeniably different from that of complainant,” something that she said DMCI had not rebutted.21cralaw virtualaw library

The CA’s reliance on the conclusion and finding by ELA Panganiban-Ortiguerra was warranted. Her observation that the handwriting in the resignation letter was “undeniably different” from that of Bello could not be ignored or shunted aside simply because she had no expertise to make such a determination, as the NLRC tersely stated in its decision. To begin with, her supposed lack of expertise did not appear in the records, rendering the NLRC’s statement speculative and whimsical. If we were now to outrightly discount her competence to make that observation, we would disturb the time-honored practice of according respect to the findings of the first-line trier of facts in order to prefer the speculative and whimsical statement of an appellate forum like the NLRC. Yet, even had the letter been actually signed by him, the voluntariness of the resignation could not be assumed from such fact alone. His claim that he had been led to believe that the letter would serve only as the means of extending his sick leave from work should have alerted DMCI to the task of proving the voluntariness of the resignation. It was obvious that, if his claim was true, then he did not fully comprehend the import of the letter, rendering the resignation farcical. The doubt would then be justifiably raised against the letter being at all intended to end his employment. Under the circumstances, DMCI became burdened with the obligation to prove the due execution and genuineness of the document as a letter of resignation.22cralaw virtualaw library

We reiterate that it is axiomatic in labor law that the employer who interposes the defense of voluntary resignation of the employee in an illegal dismissal case must prove by clear, positive and convincing evidence that the resignation was voluntary; and that the employer cannot rely on the weakness of the defense of the employee.23 The requirement rests on the need to resolve any doubt in favor of the working man.

WHEREFORE, the Court AFFIRMS the decision promulgated on February 18, 2003; and ORDERS petitioner to pay the costs of suit.


Sereno, C.J., Leonardo-De Castro, Villarama, Jr., and Reyes, JJ., concur.


1Rollo, pp. 167-176; penned by Associate Justice Josefina Guevara-Salonga (retired), with the concurrence of Associate Justice Rodrigo V. Cosico (retired) and Associate Justice Edgardo F. Sundiam (retired/deceased).

2 Id. at 134-139.

3 Id. at 144-146.

4 Id. at 81-89.

5  Id. at 30-39.

6 Supra note 4.

7Rollo, p. 94.

8 Id. at 134-139.nadcralawlibrary

9 Id. at 140-143.redcralaw

10 Id. at 144-146.

11 Id. at 147-163.

12 Supra note 1.

13 Id. at 178.

14Philippine National Construction Corporation v. NLRC, G.R. No. 85323, June 20, 1989, 174 SCRA 191, 193; Uy v. National Labor Relations Commission, G.R. No. 117983, September 6, 1996, 261 SCRA 505, 513.

15Rollo, p. 85.

16 Websters Third New International Dictionary. 1993.

17Tomas Lao Construction v. National Labor Relations Commission, G.R. No. 116781, September 5, 1997, 278 SCRA 716, 726, citing Phesco, Inc. v. National Labor Relations Commission, G.R. Nos. 104444-49, December 27, 1994, 239 SCRA 446; Capitol Industrial Construction Groups v. NLRC, G.R. No. 105359, April 22, 1993, 221 SCRA 469.

18 Id. at 726-727.

19ALU-TUCP v. National Labor Relations Commission, G.R. No. 109902, August 2, 1994, 234 SCRA 678, 685.

20 Samson v. National Labor Relations Commission, G.R. No. 113166, February 1, 1996, 253 SCRA 112, 123.

21 Supra note 1.

22  Id.

23 Vicente v. Court of Appeals, G.R. No. 175988, August 24, 2007, 531 SCRA 240, 250; Mobile Protective & Detective Agency v. Ompad, G.R. No. 159195, May 9, 2005, 458 SCRA 308, 323.
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