FIRST DIVISION
G.R. No. 176419, November 27, 2013
GMA NETWORK, INC., Petitioners, v. CARLOS P. PABRIGA, GEOFFREY F. ARIAS, KIRBY N. CAMPO, ARNOLD L. LAGAHIT AND ARMAND A. CATUBIG, Respondent.
D E C I S I O N
LEONARDO-DE CASTRO, J.:
On July 19, 1999, due to the miserable working conditions, private respondents were forced to file a complaint against petitioner before the National Labor Relations Commission, Regional Arbitration Branch No. VII, Cebu City, assailing their respective employment circumstances as follows:
NAME DATE HIRED POSITION Carlos Pabriga 2 May 1997 Television Technicians Geoffrey Arias 2 May 1997 Television Technicians Kirby Campo 1 Dec. 1993 Television Technicians Arnold Laganit 11 Feb. 1996 Television Technicians Armand Catubig 2 March 1997 Television Technicians
Private respondents were engaged by petitioner to perform the following activities, to wit:1) Manning of Technical Operations Center:On 4 August 1999, petitioner received a notice of hearing of the complaint. The following day, petitioner’s Engineering Manager, Roy Villacastin, confronted the private respondents about the said complaint.(a) Responsible for the airing of local commercials; and
(b) Logging/monitoring of national commercials (satellite)
2) Acting as Transmitter/VTR men:(a) Prepare tapes for local airing;
(b) Actual airing of commercials;
(c) Plugging of station promo;
(d) Logging of transmitter reading; and
(e) In case of power failure, start up generator set to resume program;
3) Acting as Maintenance staff;(a) Checking of equipment;
(b) Warming up of generator;
(c) Filling of oil, fuel, and water in radiator; and
4) Acting as Cameramen
On 9 August 1999, private respondents were summoned to the office of petitioner’s Area Manager, Mrs. Susan Aliño, and they were made to explain why they filed the complaint. The next day, private respondents were barred from entering and reporting for work without any notice stating the reasons therefor.
On 13 August 1999, private respondents, through their counsel, wrote a letter to Mrs. Susan Aliño requesting that they be recalled back to work.
On 23 August 1999, a reply letter from Mr. Bienvenido Bustria, petitioner’s head of Personnel and Labor Relations Division, admitted the non-payment of benefits but did not mention the request of private respondents to be allowed to return to work.
On 15 September 1999, private respondents sent another letter to Mr. Bustria reiterating their request to work but the same was totally ignored. On 8 October 1999, private respondents filed an amended complaint raising the following additional issues: 1) Unfair Labor Practice; 2) Illegal dismissal; and 3) Damages and Attorney’s fees.
On 23 September 1999, a mandatory conference was set to amicably settle the dispute between the parties, however, the same proved to be futile. As a result, both of them were directed to file their respective position papers.
On 10 November 1999, private respondents filed their position paper and on 2 March 2000, they received a copy of petitioner’s position paper. The following day, the Labor Arbiter issued an order considering the case submitted for decision.3
WHEREFORE, the foregoing premises considered, judgment is hereby rendered dismissing the complaints for illegal dismissal and unfair labor practice.
Respondents are, however, directed to pay the following complainants their proportionate 13th month pay, to wit:chanRoblesvirtualLawlibraryAll other claims are, hereby, dismissed for failure to substantiate the same. 4
1. Kirby Campo P 7,716.04 2. Arnold Lagahit 7,925.98 3. Armand Catubig 4,233.68 4. Carlos Pabriga 4,388.19 5. Geoffrey Arias 4,562.01 P28,826.14 10% Attorney’s fees 2,882.61 GRAND TOTAL P31,708.75
WHEREFORE, we make the following findings:
a) All complainants are regular employees with respect to the particular activity to which they were assigned, until it ceased to exist. As such, they are entitled to payment of separation pay computed at one (1) month salary for every year of service;
b) They are not entitled to overtime pay and holiday pay; and
c) They are entitled to 13th month pay, night shift differential and service incentive leave pay.
For purposes of accurate computation, the entire records are REMANDED to the Regional Arbitration Branch of origin which is hereby directed to require from respondent the production of additional documents where necessary.
Respondent is also assessed the attorney’s fees of ten percent (10%) of all the above awards.5
I.
THE COURT OF APPEALS GRAVELY ERRED FINDING RESPONDENTS ARE REGULAR EMPLOYEES OF THE PETITIONER AND ARE NOT PROJECT EMPLOYEES.II.
THE COURT OF APPEALS GRAVELY ERRED IN AWARDING SEPARATION PAY TO RESPONDENTS ABSENT A FINDING THAT RESPONDENTS WERE ILLEGALLY DISMISSED.III.
THE COURT OF APPEALS GRAVELY ERRED IN AWARDING NIGHT SHIFT DIFFERENTIAL PAY CONSIDERING THE ABSENCE OF EVIDENCE WHICH WOULD ENTITLE THEM TO SUCH AN AWARD.IV.
THE COURT OF APPEALS GRAVELY ERRED IN AWARDING ATTORNEY’S FEES TO RESPONDENTS.6
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 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 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 a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity actually exist.
ARTICLE 279. Security of tenure. – In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.
It is evidently important to become clear about the meaning and scope of the term “project” in the present context. The “project” for the carrying out of which “project employees” are hired would ordinarily have some relationship to the usual business of the employer. Exceptionally, the “project” undertaking might not have an ordinary or normal relationship to the usual business of the employer. In this latter case, the determination of the scope and parameters of the “project” becomes fairly easy. It is unusual (but still conceivable) for a company to undertake a project which has absolutely no relationship to the usual business of the company; thus, for instance, it would be an unusual steel-making company which would undertake the breeding and production of fish or the cultivation of vegetables. From the viewpoint, however, of the legal characterization problem here presented to the Court, there should be no difficulty in designating the employees who are retained or hired for the purpose of undertaking fish culture or the production of vegetables as “project employees,” as distinguished from ordinary or “regular employees,” so long as the duration and scope of the project were determined or specified at the time of engagement of the “project employees.” For, as is evident from the provisions of Article 280 of the Labor Code, quoted earlier, the principal test for determining whether particular employees are properly characterized as “project employees” as distinguished from “regular employees,” is whether or not the “project employees” were assigned to carry out a “specific project or undertaking,” the duration (and scope) of which were specified at the time the employees were engaged for that project.
In the realm of business and industry, we note that “project” could refer to one or the other of at least two (2) distinguishable types of activities. Firstly, a project could refer to a particular job or undertaking that is within the regular or usual business of the employer company, but which is distinct and separate, and identifiable as such, from the other undertakings of the company. Such job or undertaking begins and ends at determined or determinable times. The typical example of this first type of project is a particular construction job or project of a construction company. A construction company ordinarily carries out two or more [distinct] identifiable construction projects: e.g., a twenty-five-storey hotel in Makati; a residential condominium building in Baguio City; and a domestic air terminal in Iloilo City. Employees who are hired for the carrying out of one of these separate projects, the scope and duration of which has been determined and made known to the employees at the time of employment, are properly treated as “project employees,” and their services may be lawfully terminated at completion of the project.
The term “project” could also refer to, secondly, a particular job or undertaking that is not within the regular business of the corporation. Such a job or undertaking must also be identifiably separate and distinct from the ordinary or regular business operations of the employer. The job or undertaking also begins and ends at determined or determinable times. x x x.11 (Emphases supplied, citation omitted.)
1) Manning of Technical Operations Center:(a) Responsible for the airing of local commercials; and
(b) Logging/monitoring of national commercials (satellite)
2) Acting as Transmitter/VTR men:(a) Prepare tapes for local airing;
(b) Actual airing of commercials;
(c) Plugging of station promo;
(d) Logging of transmitter reading; and
(e) In case of power failure, start up generator set to resume program;
3) Acting as Maintenance staff;(a) Checking of equipment;
(b) Warming up of generator;
(c) Filling of oil, fuel, and water in radiator; and
4) Acting as Cameramen14
There is another reason why we should rule in favor of private respondents. Nowhere in the records is there any showing that petitioner reported the completion of its projects and the dismissal of private respondents in its finished projects to the nearest Public Employment Office as per Policy Instruction No. 2015 of the Department of Labor and Employment [DOLE]. Jurisprudence abounds with the consistent rule that the failure of an employer to report to the nearest Public Employment Office the termination of its workers’ services everytime a project or a phase thereof is completed indicates that said workers are not project employees.
In the extant case, petitioner should have filed as many reports of termination as there were projects actually finished if private respondents were indeed project employees, considering that the latter were hired and again rehired from 1996 up to 1999. Its failure to submit reports of termination cannot but sufficiently convince us further that private respondents are truly regular employees. Important to note is the fact that private respondents had rendered more than one (1) year of service at the time of their dismissal which overturns petitioner’s allegations that private respondents were hired for a specific or fixed undertaking for a limited period of time.16 (Citations omitted.)
Be that as it may, a project employee may also attain the status of a regular employee if there is a continuous rehiring of project employees after the stoppage of a project; and the activities performed are usual [and] customary to the business or trade of the employer. The Supreme Court ruled that a project employee or a member of a work pool may acquire the status of a regular employee when the following concur:1) There is a continuous rehiring of project employees even after cessation of a project; and
2) The tasks performed by the alleged project employee are vital, necessary and indispensable to the usual business or trade of the employer.
The circumstances set forth by law and the jurisprudence is present in this case. In fine, even if private respondents are to be considered as project employees, they attained regular employment status, just the same.21 (Citation omitted.)
1) The fixed period of employment was knowingly and voluntarily agreed upon by the parties without any force, duress, or improper pressure being brought to bear upon the employee and absent any other circumstances vitiating his consent; or
2) It satisfactorily appears that the employer and the employee dealt with each other on more or less equal terms with no moral dominance exercised by the former or the latter. 28 (Citation omitted.)
[I]t could not be supposed that private respondents and all other so-called “casual” workers of [the petitioner] KNOWINGLY and VOLUNTARILY agreed to the 5-month employment contract. Cannery workers are never on equal terms with their employers. Almost always, they agree to any terms of an employment contract just to get employed considering that it is difficult to find work given their ordinary qualifications. Their freedom to contract is empty and hollow because theirs is the freedom to starve if they refuse to work as casual or contractual workers. Indeed, to the unemployed, security of tenure has no value. It could not then be said that petitioner and private respondents “dealt with each other on more or less equal terms with no moral dominance whatever being exercised by the former over the latter.
We reject the petitioner’s submission that it resorted to hiring employees for fixed terms to augment or supplement its regular employment “for the duration of peak loads” during short-term surges to respond to cyclical demands; hence, it may hire and retire workers on fixed terms, ad infinitum, depending upon the needs of its customers, domestic and international. Under the petitioner’s submission, any worker hired by it for fixed terms of months or years can never attain regular employment status. x x x.
However, since petitioner refused to accept private respondents back to work, reinstatement is no longer practicable. Allowing private respondents to return to their work might only subject them to further embarrassment, humiliation, or even harassment.
Thus, in lieu of reinstatement, the grant of separation pay equivalent to one (1) month pay for every year of service is proper which public respondent actually did. Where the relationship between private respondents and petitioner has been severely strained by reason of their respective imputations of accusations against each other, to order reinstatement would no longer serve any purpose. In such situation, payment of separation pay instead of reinstatement is in order.33 (Citations omitted.)
Likewise legally correct is the deletion of the award of attorney’s fees, the NLRC having failed to explain petitioner’s entitlement thereto. As a matter of sound policy, an award of attorney’s fees remains the exception rather than the rule. It must be stressed, as aptly observed by the appellate court, that it is necessary for the trial court, the NLRC in this case, to make express findings of facts and law that would bring the case within the exception. In fine, the factual, legal or equitable justification for the award must be set forth in the text of the decision. The matter of attorney’s fees cannot be touched once and only in the fallo of the decision, else, the award should be thrown out for being speculative and conjectural. In the absence of a stipulation, attorney’s fees are ordinarily not recoverable; otherwise a premium shall be placed on the right to litigate. They are not awarded every time a party wins a suit. (Citations omitted.)
Endnotes:
1Rollo, pp. 9-23; penned by Associate Justice Priscilla Baltazar-Padilla with Associate Justices Isaias P. Dicdican and Romeo F. Barza, concurring.
2 Id. at 25-26.
3 Id. at 10-12.
4 Id. at 188-189.
5 Id. at 175-176.
6 Id. at 42-43.
7Leyte Geothermal Power Progressive Employees Union-ALU-TUCP v. Philippine National Oil Company-Energy Development Corporation, G.R. No. 170351, March 30, 2011, 646 SCRA 658, 665.
8 260 Phil. 747 (1990).
9 G.R. No. 109902, August 2, 1994, 234 SCRA 678, 684-686.
10 Supra note 7 at 668-669.
11ALU-TUCP v. National Labor Relations Commission, supra note 9 at 684-685.
12 537 Phil. 840 (2006).
13 357 Phil. 954 (1998).
14Rollo, pp. 10-11.
15 This has been superseded by Department Order No. 19, series of 1993, which likewise imposed on the employer a duty to report terminations of project employment in the construction industry to the DOLE.
16Rollo, p. 17.
17 Supra note 12.
18 534 Phil. 306 (2006).
19 Maraguinot, Jr. v. National Labor Relations Commission, 348 Phil. 580, 606 (1998).
20Pasos v. Philippine National Construction Corporation, G.R. No. 192394, July 3, 2013.
21Rollo, pp. 17-18.
22 351 Phil. 1038 (1998).
23 544 Phil. 223 (2007).
24Rollo, pp. 378-382.
25Brent School, Inc. v. Zamora, supra note 8 at 757.
26Philips Semiconductors (Phils.), Inc. v. Fadriquela, 471 Phil. 355, 372 (2004).
27 Id.
28 Romares v. National Labor Relations Commission, 355 Phil. 835, 847 (1998); Philips Semiconductors (Phils.), Inc. v. Fadriquela, id. at 372-373.
29 347 Phil. 434, 444 (1997).
30Dacuital v. L.M. Camus Engineering Corporation, G.R. No. 176748, September 1, 2010, 629 SCRA 702, 716.
31 Supra note 25 at 373.
32Rollo, pp. 384-387.
33 Id. at 20.
34 Labor Code, Article 86.
35 G.R. No. 168495, July 2, 2010, 622 SCRA 694.
36 512 Phil. 301, 315-316 (2005).