G.R. No. 150478 April 15, 2005 Hacienda Bino v. Candido Cuanca, et. al.

Petitioners: HACIENDA BINO/HORTENCIA STARKE, INC./HORTENCIA L. STARKE Respondents: CANDIDO CUENCA, FRANCISCO ACULIT, ANGELINA ALMONIA, DONALD ALPUERTO, NIDA BANGALISAN, ROGELIO CHAVEZ, ELMO DULINGGIS, MERCEDES EMPERADO, TORIBIO EMPERADO, JULIANA ENCARNADO, REYNALDO ENCARNADO, GENE FERNANDO, JOVEN FERNANDO, HERNANI FERNANDO, TERESITA FERNANDO, BONIFACIO GADON, JOSE GALLADA, RAMONITO KILAYKO, ROLANDO KILAYKO, ALFREDO LASTIMOSO, ANTONIO LOMBO, ELIAS LOMBO, EMMA LOMBO, LAURENCIA LOMBO, LUCIA LOMBO, JOEL MALACAPAY, ADELA MOJELLO, ERNESTO MOJELLO, FRUCTOSO MOJELLO, JESSICA MOJELLO, JOSE MOJELLO, MARITESS MOJELLO, MERLITA MOJELLO, ROMEO MOJELLO, RONALDO MOJELLO, VALERIANA MOJELLO, JAIME NEMENZO, RODOLFO NAPABLE, SEGUNDIA OCDEN, JARDIOLINA PABALINAS, LAURO PABALINAS, NOLI PABALINAS, RUBEN PABALINAS, ZALDY PABALINAS, ALFREDO PANOLINO, JOAQUIN PEDUHAN, JOHN PEDUHAN, REYNALDO PEDUHAN, ROGELIO PEDUHAN, JOSEPHINE PEDUHAN, ANTONIO PORRAS, JR., LORNA PORRAS, JIMMY REYES, ALICIA ROBERTO, MARCOS ROBERTO, JR., MARIA SANGGA, RODRIGO SANGGA, ARGENE SERON, SAMUEL SERON, SR., ANGELINO SENELONG, ARMANDO SENELONG, DIOLITO SENELONG, REYNALDO SENELONG, VICENTE SENELONG, FEDERICO STA. ANA, ROGELIO SUASIM, EDNA TADLAS, ARTURO TITONG, JR., JOSE TITONG, JR., NANCY VINGNO, ALMA YANSON, JIMMY YANSON, MYRNA VILLANUEVA BELENARIO, SALVADOR MALACAPAY, and RAMELO TIONGCO

2. For respondents to be excluded from those classified as regular employees, it is not enough that they perform work or services that are seasonal in nature. They must have been employed only for the duration of one season. While the records sufficiently show that the respondents work in the hacienda was seasonal in nature, there was, however, no proof that they were hired for the duration of one season only. The petitioners did not present any evidence that the respondents were required to perform certain phases of agricultural work for a definite period of time. The payrolls, submitted in evidence by the petitioners, show that they availed the services of the respondents since 1991. Absent any proof to the contrary, the general rule of regular employment should therefore stand. It bears stressing that the employer has the burden of proving the lawfulness of his employees dismissal. The primary standard for determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer. There is no doubt that the respondents were performing work necessary and desirable in the usual trade or business of an employer. Hence, they can properly be classified as regular employees.

FACTS: Hacienda Bino is a 236-hectare sugar plantation located at Negros Occidental, and represented in this case by Hortencia L. Starke, owner and operator of the said hacienda. The 76 individual respondents were part of the workforce of Hacienda Bino consisting of 220 workers, performing various works, such as cultivation, planting of cane points, fertilization, watering, weeding, harvesting, and loading of harvested sugarcanes to cargo trucks. During the off-milling season, petitioner Starke issued an Order or Notice which stated, that all Hacienda employees who signed in favor of CARP are expressing their desire to get out of employment on their own volition. The respondents regarded such notice as a termination of their employment. As a consequence, they filed a complaint for illegal dismissal. The respondents as complainants alleged that they are regular and permanent workers of the hacienda and that they were dismissed without just and lawful cause. ISSUES: 1. Whether or not the ruling in the case of Mercado Sr. v. NLRC, following the Doctrine of Stare Decisis, should be applied in the case at bar 2. Whether or not the seasonal nature of the performance of work or services by respondents exclude them from those classified as regular employees RULING: 1. In the case of Mercado Sr. v. NLRC, the petitioners, who were sugar workers, were classified as seasonal employees and not regular employees because: (a) they worked only for a definite period for the farm owner; (b) they were free to contract their services with other farm owners, which they did; (c) they were not hired regularly and repeatedly for the same phase/s of agricultural work, but on and off for any single phase thereof; and (d) considering that the area of the land in question (17 hectares) was comparatively small, the planting of rice and sugar cane thereon could not possibly entail a whole year operation. Notwithstanding the ruling in the Mercado case, the Supreme Court held that the same does not operate to abandon the settled doctrine that sugar workers are considered regular and permanent farm workers of a sugar plantation owner, the reason being that the facts involved in this case are different from the case of Mercado. The disparity in facts between the Mercado case and the instant case is best exemplified by the fact that the decision in the former ruled on the status of employment of farm labourers while the latter presents a different factual condition as the enormity of the size of the sugar hacienda of petitioner (236 hectares) simply do not allow for private respondents to render work only for a definite period. The Doctrine of Stare Decisis, therefore, finds no relevance in the case at bar.

**Labor Arbiter Decision: (1) petitioner Starkes notice dated July 18, 1996 was tantamount to a termination of the respondents services; (2) petitioner company was guilty of illegal dismissal; (3) petitioner is ordered to: (3.a) reinstate the complainants to their former position without loss of seniority rights, (3.b) pay backwages and wage differentials (P495,852.72) (3.c) pay attorney's fee (P49,585.27) **NLRC Decision: Decision of the Labor Arbiter is AFFIRMED WITH MODIFICATIONS (petitioner further ordered to pay the complainants listed in the Holiday Pay Payroll the amounts due them) **CA Decision: Decision of the NLRC is MODIFIED by deleting the award for holiday pay and premium pay for holidays. The rest of the Decision is hereby AFFIRMED. The CA ruled that: (1) the concept of stare decisis, with respect to the Mercado case, is not relevant to the present case; (2) the petitioners reliance on Bacolod-Murcia Milling Co. Inc. v. NLRC was misplaced; (3) the respondents appeal to the NLRC was not perfected since they failed to accompany their notice of appeal with a memorandum of appeal, or to timely file a memorandum of appeal. **Under the Doctrine of Stare Decisis, when a court has laid down a principle of law as applicable to a certain state of facts, it will adhere to that principle and apply it to all future cases in which the facts are substantially the same. Where the facts are essentially different, however, stare decisisdoes not apply, for a perfectly sound principle as applied to one set of facts might be entirely inappropriate when a factual variance is introduced. **A project employee is defined as one whose employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season (D.M. CONSUNJI, INC. vs. ANTONIO GOBRES, MAGELLAN DALISAY, GODOFREDO PARAGSA, EMILIO ALETA and GENEROSO MELO; G.R. No. 169170 August 8, 2010)

G.R. No. 195033 October 12, 2011 AGG Trucking and/or Alex Ang Gaeid, petitioners v. Melanio B. Yuag, respondent
FACTS: Respondent Melanio Yuag was hired by petitioner Alex Ang Gaeid as a driver of a ten-wheeler truck tasked to deliver sacks of sugar from the Busco Sugar Mill to the port of Cagayan de Oro. Respondent received his salary on commission basis of 9% of his gross delivery per trip. Petitioner noticed that respondent had started incurring substantial shortages since 30 September 2004, when he allegedly had a shortage of 32 bags, equivalent to 48,000; followed by 50 bags, equivalent to 75,000, on 11 November 2004. It was also reported that he had illegally sold bags of sugar along the way at a lower price, and that he was banned from entering the premises of the Busco Sugar Mill. Alarmed at the delivery shortages, petitioner took it upon himself to monitor all his drivers by instructing them to report to him their location from time to time through their mobile phones. He also required them to make their delivery trips in convoy, in order to avoid illegal sale of cargo along the way. All drivers, with the exception of Yuag who could not be reached through his cellphone, reported their location as instructed. Afterwards, everyone, except Yuag, communicated that the delivery of their respective cargoes had been completed. The Coca-Cola Plant in Davao later reported that the delivery had a suspiciously enormous shortage. Petitioner allegedly asked respondent in a calm and polite manner to explain why he had not contacted the former for two days, why he hadn't gone in convoy with the other trucks, and regarding the large shortages. Respondent replied that the battery of his cellphone had broken down. Petitioner afterwards told him pahulay lang una (just take a rest). This exchange started the dispute since respondent construed it as a dismissal. He demanded that it be done in writing, but petitioner merely reiterated that respondent should just take a rest in the meanwhile. Petitioner alleged that respondent had offered to resign and demanded separation pay. At that time, petitioner could not grant the demand, as it would entail computation which was the duty of the cashier. Petitioner asked him to come back the next day. Respondent immediately went to the Department of Labor-Regional Arbitration Board X, that very day of the confrontation. There he filed a Complaint for illegal dismissal, claiming his separation pay and 13th month pay. Subsequently, after the delivered goods to the Coca-Cola Plant were weighed on 9 December 2004, it was found out that there was a shortage of 111 bags of sugar, equivalent to 166,000. Respondent argued that he was whimsically dismissed, just because he had not been able to answer his employer's call during the time of the delivery. His reason for not answering was that the battery pack of his cellphone had broken down. Allegedly enraged by that incident, petitioner supposedly shouted at him and told him, pahuway naka. When he asked for a clarification, petitioner allegedly told him wala nay daghan istorya, pahulay na! (No more talking! Take a rest!). He then realized that he was being dismissed. When he asked for his separation pay, petitioner refused. Respondent thus filed a Complaint for illegal dismissal. ISSUES: 1. Whether or not the appreciation by the CA of the NLRC Resolution was erroneous 2. Whether or not the regular status of employment is based on how the salary is paid 3. Whether or not a motion for reconsideration filed out of time can reopen a final executory judgement of the NLRC RULING: 1. The CA erred in finding faults that were inexistent in the NLRC Resolution. It's function in resolving a petition for certiorari was to determine whether there was grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the NLRC. In this case the CA proceeded to review the records and to rule on issues that were no longer disputed during the appeal to the NLRC, such as the existence of an employer-employee relationship. The pivotal issue before the NLRC was whether petitioners telling respondent to take a rest, or to have a break, was already a positive act of dismissing him. This issue was not discussed by the CA. 2. A regular status of employment is not based on how the salary is paid to an employee. An employee may be paid purely on commission and still be considered a regular employee.

3. A motion for reconsideration filed out of time cannot reopen a final and executory judgment of the NLRC. Untimeliness in filing motions or petitions is not a mere technical or procedural defect, as leniency regarding this requirement will impinge on the right of the winning litigant to peace of mind resulting from the laying to rest of the controversy. Had the Resolution not yet attained finality, the CA could have granted some other relief, even if not specifically sought by petitioner, if such ruling is proper under the circumstances. The NLRC Resolution sought to be set aside had become final and executory 25 days before respondent filed his Motion for Reconsideration. Thus, subsequent proceedings and modifications are not allowed and are deemed null and void.

**Labor Arbiter Decision: (dismissal illegal) For failure on the part of the respondent to substantially prove the alleged infraction (shortages) committed by complainant and to afford him the due process mandated by law before he was eventually terminated, complainant's dismissal from his employment is hereby declared illegal and the respondent is liable to reinstate him with backwages for one (1) year but in view of the strained relationship that is now prevailing between the parties, this Arbitration Branch finds it more equitable to grant separation pay instead equivalent to one (1) month per year of service based on the average income for the last year of his employment CY 2004 which is P9,974.51. The labor arbiter awarded respondent separation pay and proportionate 13th month pay for 2004 and 13th month pay differential for 2003 **NLRC Decision: (reversed the labor arbiter's ruling) The burden to prove that the dismissal was for just or authorized causes and after due process is necessarily shifted to the employee if the alleged dismissal is denied by the employer, as in this case, because a dismissal is supposedly a positive and unequivocal act by the employer. Complainant failed to prove that he was in fact dismissed from his job by Alex V. Ang Gaeid when the latter told him: Pahuway naka! (You take a rest). Even assuming that Mr. Gaeid had the intention at that time of dismissing complainant from his job, there is no proof showing of any overt act subsequently done by Mr. Gaeid that would suggest he carried out such intention. Not having been dismissed much less illegally, complainant is not entitled to the awarded benefits of backwages and separation pay for lack of legal and factual basis. **CA Decision: (reversed NLRC resolution and reinstated with modification the decision of the Labor Arbiter) Brushing aside the technicality issue, the CA proceeded to resolve the substantive issues such as whether there was an employer-employee relationship between petitioner and respondent and whether it was correct for the NLRC to declare that respondent was not illegally dismissed. It completely reversed the NLRC ruling that the same was whimsical, unreasonable or patently violative of the law **A writ of certiorari is a remedy to correct errors of jurisdiction, for which reason it must clearly show that the public respondent has no jurisdiction to issue an order or to render a decision. Rule 65 of the Rules of Court has instituted the petition for certiorari to correct acts of any tribunal, board or officer exercising judicial or quasijudicial functions with grave abuse of discretion amounting to lack or excess of jurisdiction. This remedy serves as a check on acts, either of excess or passivity, that constitute grave abuse of discretion of a judicial or quasi-judicial function. **Certiorari will issue only to correct errors of jurisdiction and not to correct errors of judgment. An error of judgment is one which the court may commit in the exercise of its jurisdiction, and which error is reviewable only by an appeal. Error of jurisdiction is one where the act complained of was issued by the court without or in excess of jurisdiction and which error is correctible only by the extraordinary writ of certiorari. As long as the court acts within its jurisdiction, any alleged errors committed in the exercise of its discretion will amount to nothing more than mere errors of judgment, correctible by an appeal if the aggrieved party raised factual and legal issues; or a petition for review under Rule 45 of the Rules of Court if only questions of law are involved. A certiorari writ may be issued if the court or quasi-judicial body issues an order with grave abuse of discretion amounting to excess or lack of jurisdiction. Grave abuse of discretion implies such capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction or, in other words, where the power is exercised in an arbitrary manner by reason of passion, prejudice, or personal hostility, and it must be so patent or gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law. Mere abuse of discretion is not enough. Moreover, a party is entitled to a writ of certiorari only if there is neither appeal nor any plain, speedy or adequate relief in the ordinary course of law. (San Fernando Rural Bank, Inc. v. Pampanga Omnibus Development Corporation and Dominic G. Aquino

G.R. No. 173849 September 28, 2007 PIER 8 ARRASTRE & STEVEDORING SERVICES, INC. and/ or ELIODORO C. CRUZ v. JEFF B. BOCLOT
FACTS: Petitioner Pier 8 Arrastre and Stevedoring Services, Inc. (PASSI) is a domestic corporation engaged in the business of providing arrastre and stevedoring services at Pier 8 in the Manila North Harbor. Respondent Jeff B. Boclot was hired by PASSI to perform the functions of a stevedore (Stevedoring, dock and arrastre operations include, but are not limited to, the opening and closing of a vessels
hatches; discharging of cargoes from ship to truck or dock, lighters and barges, and vice-versa; movement of cargoes inside vessels, warehouses, terminals and docks; and other related work). Respondent filed a Complaint with the Labor Arbiter of the NLRC, claiming

deems the repeated and continuing need for its performance as sufficient evidence of the necessity, if not indispensability, of that activity to the business of the employer. Applying the foregoing, respondent, who has performed actual stevedoring services for petitioners only for an accumulated period of 228.5 days does not fall under the classification of a casual turned regular employee after rendering at least one year of service, whether continuous or intermittent. 3. Petitioners must accord respondent the status of a regular employee. The Court found respondent to be a regular employee on the basis of pertinent provisions under the CBA between PASSI and its Workers union. Respondent assents that he is not a member of the union, as he was not recognized by PASSI as its regular employee, but this Court notes that PASSI adopts a union-shop agreement, culling from Article II of the CBA which stipulates: The Union and the Company (PASSI) hereby agree to adopt the "Union Shop" as a condition of employment to the position covered by this Agreement. Under a union-shop agreement, although non-members may be hired, an employee is required to become a union member after a certain period, in order to retain employment. This requirement applies to present and future employees. The same article of the CBA stipulates that employment in PASSI cannot be obtained without prior membership in the union. Applying the foregoing provisions of the CBA, respondent should be considered a regular employee after six months of accumulated service. It is clearly stipulated therein that petitioners shall agree to convert to regular status all incumbent probationary or casual employees and workers in PASSI who have served PASSI for an accumulated service term of employment of not less than six months from the original date of hiring. Having rendered 228.5 days, or eight months of service to petitioners since 1999, then respondent is entitled to regularization by virtue of the said CBA provisions.
**Labor Arbiter Decision: (no factual or legal basis for the regularization of respondent) Respondent was "nothing more than an extra worker who is called upon to work at the pier in the absence of regular stevedores at a certain shift." Articles 280 and 281 of the Labor Code are inapplicable, on the contention that the aforementioned articles speak of probationary employees and casual employees while respondent, as a reliever, is neither a probationary nor a casual employee. Neither was respondent qualified to avail himself of Service Incentive Leave benefits, even assuming he was a regular employee, because the number of days of service he had rendered reached a total of 228.5 days only -- short of 365 days, the oneyear requirement to qualify for this benefit. **NLRC Decision: (reversed Labor Arbiter Decision)Petitioners failure, without reasonable explanation, to present proof of absences of "regular" stevedores leads to the conclusion that the stevedores, termed by petitioners as "relievers," work on rotation basis, just like the "regular" stevedores. The NLRC predicated its findings that respondent, although rendering only an average of 6.34 days of work a month, is a regular employee of petitioners on the reasonable connection between the activity performed by the employee in relation to the usual business or trade of the employer. **CA Decision: The Court of Appeals ruled that what determines regularity or casualness is not the employment contract, written or otherwise, but the nature of the job. Even assuming that respondent was able to render services for only 228.5 days in a period of 36 months, the fact remains that his services were continuously utilized by petitioners in their business. Where the job is usually necessary or desirable to the main business of the employer, then the employment is regular. **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 the employment is for the duration of the season. **A regular employee is (1) one who is either engaged to perform activities that are necessary or desirable in the usual trade or business of the employer except for project or seasonal employees; or (2) a casual employee who has rendered at least one year of service, whether continuous or broken, with respect to the activity in which he is employed; (3) Article 281 of the Labor Code further considers a regular employee as one who is allowed to work after a probationary period. The primary standard of determining a regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. Also, if the employee has been performing the job for at least one year, even if the performance is not continuous or merely intermittent, the law deems the repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is also considered regular, but only with respect to such activity and while such activity exists. (De Leon v. National Labor Relations Commission)

regularization; payment of service incentive leave and 13th month pays; moral, exemplary and actual damages; and attorneys fees. Respondent alleged that he was hired by PASSI in October 1999 and was issued company ID No. 304, a PPA Pass and SSS documents. In fact, respondent contended that he became a regular employee by April 2000, since it was his sixth continuous month in service in PASSIs regular course of business. He maintains that under paragraph 2 of Article 280, he should be deemed a regular employee having rendered at least one year of service with the company. According to respondent, he was denied the rights and privileges of a regular employee, including those granted under the Collective Bargaining Agreement (CBA) to wit: The Company agrees to convert to regular status all incumbent probationary or casual employees and workers in the Company who have served the Company for an accumulated service term of employment of not less than six (6) months from his original date of hiring. However, petitioners alleged that respondent was hired as a mere reliever stevedore and could thus not become a regular employee. Labor Arbiter Felipe P. Pati ruled for petitioners and dismissed respondents complaint. On appeal, the NLRC ruled that respondent is a regular employee. It was elevated before the Court of Appeals but it was affirmed. Hence, this petition for review under Rule 45 ISSUES: 1. Whether or not respondent has attained regular employment based on the primary standard of the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. 2. Whether or not respondent has attained regular employment based on the exception 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 actually exist. 3. Whether or not respondent has attained regular status as PASSIs employee where the nature of respondents work as a reliever stevedore and his accumulated length of service of only eight months do not qualify him to be declared as such under the provisions of the Labor Code RULING: 1. Based on the circumstances of the instant case, this Court agrees that it is an industry practice in port services to hire "reliever" stevedores in order to ensure smooth-flowing 24-hour stevedoring and arrastre operations in the port area. Serving as a stevedore, respondent performs tasks necessary or desirable to the usual business of petitioners. However, it should be deemed part of the nature of his work that he can only work as a stevedore in the absence of the employee regularly employed for the very same function. Bearing in mind that respondent performed services from September 1999 until June 2003 for a period of only 228.5 days in 36 months, or roughly an average of 6.34 days a month; while a regular stevedore working for petitioners, on the other hand, renders service for an average of 16 days a month, demonstrates that respondents employment is subject to the availability of work, depending on the absences of the regular stevedores. Moreover, respondent does not contest that he was well aware that he would only be given work when there are absent or unavailable employees. Respondent also does not allege, nor is there any showing, that he was disallowed or prevented from offering his services to other cargo handlers in the other piers at the North Harbor other than petitioners. As aforestated, the situation of respondent is akin to that of a seasonal or project or term employee, albeit on a daily basis. 2. A casual employee can be considered as regular employee if said casual employee has rendered at least one year of service regardless of the fact that such service may be continuous or broken. Section 3, Rule V, Book II of the Implementing Rules and Regulations of the Labor Code clearly defines the term "at least one year of service" to mean service within 12 months, whether continuous or broken, reckoned from the date the employee started working, including authorized absences and paid regular holidays, unless the working days in the establishment as a matter of practice or policy, or that provided in the employment contract, is less than 12 months, in which case said period shall be considered one year. If the employee has been performing the job for at least one year, even if the performance is not continuous or merely intermittent, the law

G.R. No. 152949 August 14, 2007

AKLAN COLLEGE, INCORPORATED and MSGR. ADOLFO P. DEPRA, petitioners, vs. RODOLFO P. GUARINO, respondent
FACTS: During respondents employment with petitioner Aklan College Inc., he held three concurrent positions: those of an instructor, Acting Dean of the Commerce Department (for a continuous period of 17 years, more or less), and Acting Personnel Director. Respondent went on leave for one year (November 4, 1991 - November 4, 1992) and on October 20, 1992, he wrote the petitioner informing the latter of his intention of reassuming his positions with the petitioner college. However, petitioner informed private respondent that the Board of Trustees of the petitioner college has decided not to allow him to reassume his position as Acting Dean for the reason that he has not qualified to continue holding the position and that the position of Acting Personnel director has already been filled up by a regular incumbent. Thus, on November 11, 1992, private respondent filed the instant case for illegal dismissal against petitioner with the office of the Department of Labor in Kalibo, Aklan which dismissed the case for lack of merit. On appeal, the NLRC reversed the Labor Arbiters decision and upon the filing by petitioners of a special civil action for certiorari with the CA, the latter denied the petition and affirmed the assailed decision of the NLRC. Citing the case of La Salette of Santiago, Inc. v. NLRC, petitioners assert that while an employee attains security of tenure as a member of the teaching staff of a private educational institution from which he could only be removed for cause, he cannot always aspire for a second tenure in an administrative position and can, therefore, be stripped of this position by the appointing power without the latter being held responsible for illegal dismissal. Petitioners argue that when private respondent was not allowed to re-assume his former administrative positions as Acting Dean and Acting Personnel Director but was still considered as an instructor and was even prodded to resume his teaching responsibilities, he could not be considered as having been illegally dismissed. Petitioners further argue that: (a) there was no law or agreement which gave respondent additional tenure as dean; (b) his appointment as dean in a regular capacity was made dependent on his graduation with a degree of Master in Business Administration (MBA), as this is a requirement imposed by DECS Order No. 5, Series of 1990 as well as the Manual of Regulations for Private Schools; (c) petitioner was not able to finish his MBA which compelled petitioner ACI to withhold the position from him; and (d) respondents appointment as Dean and Personnel Director was only in an acting but never in a regular capacity, contending that a bona fide appointment in an acting capacity is essentially temporary and revocable in character and the holder of such an appointment may be removed anytime even without hearing or cause. On the other hand, respondent argues that: (a) in La Salette, the complainant therein was appointed to various administrative positions for a definite or fixed term, while in the present case respondent was appointed as dean not for a fixed duration but for an indefinite period; (b) that by continuously serving as Dean of ACIs Commerce and Secretarial Department for more than 17 years, his assumption of the said office could not be considered as temporary; and (c) while he was not formally appointed as dean, he has acquired security of tenure as such pursuant to the provisions of Article 280 of the Labor Code. ISSUES: 1. Whether or not respondents termination as Acting Personnel Director is valid 2. Whether or not respondents termination as Acting Dean is valid 3. Whether or not petitioner is estopped from assailing respondents qualification since it allowed the latter to continue occupying the position of acting dean for more than 17 years despite the said requirement being imposed by the DECS 4. Whether or not Article 280 of the Labor Code is applicable 5. Whether or not respondent is entitlement to separation pay

2. Respondents appointment as dean of petitioners Commerce Department was also in an acting capacity. Hence, the Court finds the rulings in La Salette and Achacoso applicable. , the fact that respondent was retained as an acting dean for 17 years did not give him a vested right to occupy in a permanent capacity the position to which he was appointed. Neither do his long years of service confer upon him the requisite qualifications which he does not possess. Not being a masters degree holder, he was never and could never have been appointed in a permanent capacity, as he is not qualified under the law. Thus, pursuant to the 1970 Manual, respondents dismissal as acting dean of ACIs Commerce Department is valid. 3. The Court is not persuaded by respondents contention that petitioner ACI is estopped from assailing respondents qualification since it allowed the latter to continue occupying the position of acting dean for more than 17 years despite the said requirement being imposed by the DECS. In the present case, the employment of respondent as Acting Dean is contrary to the express provisions of the 1970 Manual. It is settled that estoppel cannot give validity to an act that is prohibited by law, or one that is against public policy. Neither can the defense of illegality be waived. Hence, respondents appointment as Acting Dean can never be deemed validated by estoppel. 4. The provisions of Article 280 of the Labor Code are not applicable to the present case especially with respect to the issue of respondent's acquisition of security of tenure. It is settled that questions respecting a private school teachers entitlement to security of tenure are governed by the Manual of Regulations for Private Schools and not the Labor Code. Paragraph 75 of the 1970 Manual (now Section 93 of the 1992 Manual) lays down the requisites before a teacher can be considered as having attained a permanent status and therefore entitled to security of tenure. In La Salette, the Court was clear in ruling that, unlike teachers (assistant instructors, instructors, assistant professors, associate professors, full professors) who aspire for and expect to acquire permanency, or security of tenure, in their employment as faculty members, teachers who are appointed as department heads or administrative officials (e.g., college or department secretaries, principals, directors, assistant deans, deans) do not normally, and should not expect to, acquire a second status of permanency or an additional or second security of tenure as such officer. In the instant case, it is not disputed that respondent was never removed from his position as instructor. He was only dismissed from his capacity as Acting Dean and Acting Personnel Director. 5. While respondent was no longer allowed to return to his positions as Acting Dean and Acting Personnel Director he was, nonetheless, retained as an instructor. Hence, he could not be deemed as separated from the service because his employment as instructor remains.
**Labor Arbiter Decision: (1) petitioner Starkes notice dated July 18, 1996 was tantamount to a termination of the respondents services; (2) petitioner company was guilty of illegal dismissal; (3) petitioner is ordered to: (3.a) reinstate the complainants to their former position without loss of seniority rights, (3.b) pay backwages and wage differentials (P495,852.72) (3.c) pay attorney's fee (P49,585.27) **NLRC Decision: Petitioner was ordered to pay the complainant: (a) separation pay for his discharge from the position of Dean of Commerce and Secretarial Science, equivalent to one month pay for every year of service, a fraction of six months being considered one year; (b) 10% of the monetary awards as attorneys fees. Furthermore, respondent was ordered to be reinstated in his position as personnel director with full backwages from the time his salaries were withheld from him until his actual reinstatement, and as instructor without backwages. **CA Decision: (affirmed the NLRC Decision) **A permanent appointment can be issued only to a person who meets all the requirements for the position to which he is being appointed; a person who does not have the requisite qualifications for the position cannot be appointed to it in the first place or, only as an exception to the rule, may be appointed to it merely in an acting capacity in the absence of persons who are qualified; the purpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official functions by authorizing a person to discharge the same pending the selection of a permanent or another appointee; the person named in an acting capacity accepts the position under the condition that he shall surrender the office once he is called upon to do so by the appointing authority. **Article IV (1) (1.2) of DECS Order No. 5, Series of 1990, provides for the following minimum qualifications for the position of chairman, dean or director of a schools accounting program, to wit: (a) Holder of a CPA certificate issued by the Professional Regulation Commission; (b) Holder of at least a masters degree in business, accountancy, or business education; (c) Teaching experience of at least three (3) years; and (d) The ability to lead and gain the confidence and respect of the faculty.

RULING: 1. Consistent with the rulings in La Salette v. NLRC and Achacoso v. Macaraig, respondent, having assumed the position of Personnel Director in an acting capacity, could not have acquired security of tenure. Thus, his termination as such is valid. This Court has held that an acting appointment is merely temporary, or one which is good until another appointment is made to take its place. If another person is appointed, the temporary appointee should step out and cannot even dispute the validity of his successors appointment. One who holds a temporary appointment has no fixed tenure of office; his employment can be terminated anytime at the pleasure of the appointing power without need to show that it is for cause.