G.R. No.

107761 December 27, 1994

ASSOCIATION OF MARINE OFFICERS AND SEAMEN OF REYES AND LIM CO.
MANAGERS FOR CARGO MARINE COR!.", petitioner,
vs.
#ON. $IEN%ENIDO E. LAG&ESMA, REYES AND LIM CO. INC. MANAGERS FOR
CARGO MARINE COR!.", respondent.
Ruscius G. Zaragoza for petitioner.
Jonathan M. Polines for private respondent.

ROMERO, J.:
The question before us in this petition for certiorari is whether or not the major patron,
minor patron, chief mate and chief engineer of a vessel are managerial employees.
Public respondent Undersecretary of Labor has ruled that they are, contrary to
petitioner labor organizations contention that they are ran! and file employees who
may form part of the union.
The facts antecedent to this petition are as follows"
The #ssociation of $arine %fficers and &eamen of 'eyes and Lim (o., a legitimate
labor organization, filed a petition for certification election on $arch )), )**+. %n
,une ), )**+ the $ed-#rbiter issued an %rder for the conduct of a certification
election in the bargaining unit covering the entire complement of four vessels.
.e ruled that even as private respondent company alleges certain employees to be
managerial, supervisory and confidential employees /master, chief mate, second
mate, third mate, radio officer, chief engineer and second engineer0, the records is
bereft of any showing that the marine officers are performing managerial, supervisory,
and confidential functions.
1
The dispositive portion of the $ed-#rbiters %rder reads"
1.2'23%'2, on the foregoing consideration, let a certification
election be conducted among the regular marine officers and
seamen of 'eyes and Lim (o., 4nc. /$anagers for (argo $arine
(orp.0 within twenty /+50 days from receipt hereof, subject to the
usual pre-election conference of the parties to thresh out the
mechanics and other details of the election. The payroll of the
company three /60 months prior to the filing of the petition shall be
used as the basis in determining the list of eligible voters.
The choices are"
a0 #ssociation of $arine %fficers and &eamen of 'eyes and Lim
(o., 4nc. /$anagers for (argo $arine (orp.07 and
b0 8o Union.
&% %'92'29.
2
Private respondent 'eyes and Lim (o. 4nc. appealed this %rder to the &ecretary of
Labor and 2mployment on the issues of employees status as well as the composition
of the bargaining unit. 4n a resolution dated %ctober :, )**+, Undersecretary
;ienvenido 2. Laguesma modified the order and held that"
P'2$4&2& (%8&492'29, the 'esolution of the $ed-#rbiter
dated 5) ,une )**+ is hereby modified so as to e<clude $ajor
Patron, $inor Patron, and (hief /$ate0 and (hief $arine 2ngineer
from the bargaining unit.
&% '2&%L=29.
'
Their motion for reconsideration having been denied for lac! of merit on 8ovember >,
)**+,
4
petitioner comes to us see!ing to have the 'esolution of public respondent set
aside and to have us rule that the major patron, minor patron, chief mate and chief
engineer are not managerial employees but ran! and file. #s members of the ran!
and file, these employees would be eligible to form part of the union and ta!e part in
the certification election.
To buttress their position that the aforementioned employees are not managerial but
ran! and file employees, petitioner advances the following arguments.
3irstly, it is petitioners belief that aside from having the power to e<ecute
management policies and to hire and fire, transfer, suspend, lay-off, recall, discharge,
assign or discipline employees, a managerial employee should also have the power
and prerogative to lay down management policies. Petitioner claims that the major
patron, minor patron, and chief mate and chief engineer do not have the power to lay
down management policies because they merely navigate the bay and rivers of Pasig
and ;ataan hauling liquefied petroleum /gasul0. $oreover, private respondents
operations department has ?high-tech maritime gadgets and equipment? in order to
monitor and direct the operations of the boats while en route to its destination.
(
&econdly, petitioner asserts that the job descriptions submitted by private respondent
'eyes and Lim (o., 4nc.
6
and relied upon by public respondent Undersecretary of
Labor do not apply to the situation of the aforementioned employees. 3urthermore,
the job descriptions were not ac!nowledged and even outrightly denied by the
wor!ers themselves.
7
The employees of 'eyes and Lim (o., 4nc. possess no
seamens boo!, for they do not traverse the high seas but merely the bay and rivers
from Pasig to ;ataan. They therefore, are not covered by the job descriptions
applicable to 3ilipino seafarers, but are ordinary wor!ers.
)
3inally, public respondents determination of who are managerial employees
constitutes a deprivation of the wor!ers right to self-organization and free collective
bargaining since such resolution is made during pre-election conference on
?inclusion-e<clusion? proceedings.
9
Petitioners arguments fail to persuade.
The only question for resolution is whether or not the major patron, minor patron,
chief mate and chief engineer of the vessels, $@T ;ana!, $@T ;utane, $@T ;iya, and
$@T #l!ane are managerial employees, and as such, not qualified, therefore, to join a
union.
Public respondent opined in the following manner"
#n evaluation of the afore-mentioned job descriptions submitted by
respondent-appellant vis-a-vis #rticle +)+ /m0 of the Labor (ode,
as amended, showed that the following are managerial positions,
namely" $ajor Patron, $inor Patron, (hief $ate and (hief $arine
2ngineer. This must be so, because among the $ajor Patrons
duties and functions are to ta!e complete charge and command of
the ship and to perform the duties and responsibilities of a ship
captain7 a $inor Patron commands a vessel, plying within limits of
inland waterways, ports and estuaries, while a (hief $ate acts as
the e<ecutive officer ne<t in command to the captain on board a
ship7 and a (hief $arine 2ngineer plans, coordinates the engine-
room department including supervision of subordinates. 4n the
performance of said functions, it is clear that they are vested with
powers or prerogatives to lay down and e<ecute management
policies.
10
1hile petitioners assail public respondent for the use of the ?,ob 9escriptions of $ain
(ategory of Particular 'an!s and 'atings of 3ilipino &eafarers? submitted by private
respondent, they offer no other superior proof by way of reliability and substance.
&uch an attac! on these job descriptions cannot be considered adequate. #part from
general claims made in a joint affidavit e<ecuted by ): employees, including the
masters, chief mates and chief engineers of three vessels,
11
there appears no other
proof on record of the functions they actually perform on board the vessels and of the
functions performed by other marine officers of the same position.
To buttress their position, private respondents assert that these ?,ob 9escriptions?
have been adopted as reference by the P%2# and considered as matters of public
!nowledge in consonance with the provisions of the (ode of (ommerce, Philippine
$erchant $arine 'ules and 'egulations and customary maritime practice with
respect to the inherent and customary duties of captains, chief mates, and chief
marine engineers on board the vessels.
12
This declaration remaining unrebutted, we
are led to the conclusion that the job descriptions submitted constitute industry
practice, at the very least.
$ore importantly, the credence accorded by public respondent to these job
descriptions is worthy of due respect. The factual findings of quasi-judicial agencies,
such as the 9epartment of Labor and 2mployment which are supported by
substantial evidence, are binding on us and entitled to great respect considering their
e<pertise in their respective fields.
1'
Petitioners failure to overcome the submissions of private respondent as regards
these descriptions and to rebut the same leaves us no alternative but to accept public
respondents evaluation of facts.
3urthermore, petitioners arguments that the employees who wor! on board the
vessels are not seamen bound by the job descriptions, is untenable. The fact that
they transport liquefied petroleum gas /LPA0 and the vessels operate for only five
hours are immaterial for these do not remove them from the coverage of maritime
law. 1hile they haul LPA, they continue to do so on board a vessel which traverses
waters. 8either the length of operating time nor the area traveled would alter the fact
that the vessels are used as means of transportation by water and within the sphere
of maritime law to which the job descriptions are applicable. The wor!ers on board
are not, as petitioners would have us believe, in the category of gasoline delivery
helpers or ordinary employees.
14
1e ne<t consider the law concerning managerial employees.
The second paragraph of #rticle :+ referring to managerial employees in the Labor
(ode reads, thus"
. . . ?managerial employees? refers to those whose primary duty
consists of the management of the establishment in which they are
employed or of a department or subdivision thereof, and to other
officers or members of the managerial staff. . . .
#rticle +)+ /m0 of the (ode further defines managerial employees as"
/m0 ?$anagerial employee? is one who is vested with powers or
prerogatives to lay down and e<ecute management policies and@or
to
hire, transfer, suspend, lay-off, recall, discharge, assign or
discipline employees. . . ..
The implementing rules and regulations of the Labor (ode further provide a more
detailed definition of managerial employees. 'ule 4, ;oo! 444, &ection + states"
&ec. +. Exemption. B The provisions of this 'ule shall not apply to
the following persons if they qualify for e<emption under the
conditions set forth herein"
/a0 . . . .
/b0 $anagerial employees, if they meet all of the following
conditions, namely"
/)0 Their primary duty consists of the management of the
establishment in which they are employed or of a department or
subdivision thereof7
/+0 They customarily and regularly direct the wor! of two or more
employees therein7
/60 They have the authority to hire or fire other employees of lower
ran!7 or their suggestions and recommendations as to the hiring
and firing and as to the promotion or any other change of status of
other employees are given particular weight.
/c0 . . . .
4t is very significant to note that we are not dealing here with employees of an
ordinary business establishment. The business of a marine or shipping corporation is,
by its very nature, different from other corporate concerns.
Petitioner claims that the marine officers in question must possess the power to lay
down and formulate management policies aside from just e<ecuting such policies.
Public respondent committed no error in concluding that the positions of major patron,
minor patron, chief mate, and chief engineer are managerial because the job
descriptions on record disclose that the major patrons duties include ta!ing complete
charge and command of the ship and performing the responsibilities and duties of a
ship captain7 the minor patron also commands the vessel, plying the limits of inland
waterways, ports and estuaries7 the chief mate performs the functions of an e<ecutive
officer ne<t in command to the captain7 and the chief marine engineer ta!es over-all
charge of the operation of the ships mechanical and electrical equipment. Public
respondents assessment of these managerial functions of the subject officers has
adequate basis and should not be disturbed.
The functions which these officers discharge pertain to the navigation of the vessel.
2ven if there are advanced communications equipment on board, the importance of
the position of the officers in assessing ris!s and evaluating the vessels situation
remains indisputable. The e<ercise of discretion and judgment in directing a ships
course is as much managerial in nature as decisions arrived at in the confines of the
more conventional board room or e<ecutive office.
1e find that there has been no grave abuse of discretion on the part of the
respondent Undersecretary of Labor when it ruled that the major patron, minor patron,
chief mate and chief engineer are managerial employees who are not allowed under
#rticle +C> of the Labor (ode to join, assist or form any labor organization.
1ith regard to the ne<t issue, petitioners content that the determination of whether or
not said employees are managerial should be done during the
pre-election conference on ?inclusion-e<clusion proceeding,? and not during the
processing of their petition for certification election. 1e find this issue not a proper
one for consideration since it is raised in this petition for the first time. The well-settled
principle that issues not raised in the court a quo cannot be raised for the first time on
appeal for being offensive to basic rules of fair play, justice, and due process applies
even in labor cases.
1(
48 =421 1.2'2%3, the instant petition is 94&$4&&29. The challenged resolution of
the Undersecretary of Labor is #334'$29.
&% %'92'29.
DA.'. 8o. ))+>EC. %ctober :, )**:F
$2'(49#' 34&.48A (%'P%'#T4%8 represented by its President 9%$48A% ;.
8#=#L, petitioner vs. 8#T4%8#L L#;%' '2L#T4%8& (%$$4&&4%8 and 32'$48
#A#%, ,'., respondents.
9 2 ( 4 & 4 % 8
$289%G#, J."
This is a petition for certiorari to set aside the decision, dated #ugust 65, )**6, of the
8ational Labor 'elations (ommission dismissing the appeal of petitioner $ercidar
3ishing (orporation from the decision of the Labor #rbiter in 8L'( 8(' (ase 8o.
5*-5>5:C-*5, as well as the resolution dated %ctober +>, )**6, of the 8L'( denying
reconsideration.
This case originated from a complaint filed on &eptember +5, )**5 by private
respondent 3ermin #gao, ,r. against petitioner for illegal dismissal, violation of P.9.
8o. :>), and non-payment of five days service incentive leave for )**5. Private
respondent had been employed as a HbodegeroI or shipJs quartermaster on 3ebruary
)+, )*::. .e complained that he had been constructively dismissed by petitioner
when the latter refused him assignments aboard its boats after he had reported to
wor! on $ay +:, )**5.
i
D)F
Private respondent alleged that he had been sic! and thus allowed to go on leave
without pay for one month from #pril +:, )**5 but that when he reported to wor! at
the end of such period with a health clearance, he was told to come bac! another
time as he could not be reinstated immediately. Thereafter, petitioner refused to give
him wor!. 3or this reason, private respondent as!ed for a certificate of employment
from petitioner on &eptember K, )**5. .owever, when he came bac! for the
certificate on &eptember )5, petitioner refused to issue the certificate unless he
submitted his resignation. &ince private respondent refused to submit such letter
unless he was given separation pay, petitioner prevented him from entering the
premises.
ii
D+F
Petitioner, on the other hand, alleged that it was private respondent who actually
abandoned his wor!. 4t claimed that the latter failed to report for wor! after his leave
had e<pired and was, in fact, absent without leave for three months until #ugust +:,
)**:. Petitioner further claims that, nonetheless, it assigned private respondent to
another vessel, but the latter was left behind on &eptember ), )**5. Thereafter,
private respondent as!ed for a certificate of employment on &eptember K on the
prete<t that he was applying to another fishing company. %n &eptember )5, )**5, he
refused to get the certificate and resign unless he was given separation pay.
iii
D6F
%n 3ebruary ):, )**+, Labor #rbiter #rthur L. #mansec rendered a decision
disposing of the case as follows"
#((%'948ALL, respondents are ordered to reinstate complainant with
bac!wages, pay him his )6th month pay and incentive leave pay for )**5.
#ll other claims are dismissed.
&% %'92'29.
Petitioner appealed to the 8L'( which, on #ugust 65, )**6, dismissed the appeal for
lac! of merit. The 8L'( dismissed petitionerJs claim that it cannot be held liable for
service incentive leave pay by fishermen in its employ as the latter supposedly are
Hfield personnelI and thus not entitled to such pay under the Labor (ode.
iv
DCF
The 8L'( li!ewise denied petitionerJs motion for reconsideration of its decision in its
order dated %ctober +>, )**6.
.ence, this petition. Petitioner contends"
4
T.2 '2&P%8928T (%$$4&&4%8 P#LP#;LL 2''29 48 'UL48A #89
&U&T#4848A T.2 =421 T.#T 34&.48A ('21 $2$;2'&, L4M2 32'$48 #A#%,
,'., (#88%T ;2 (L#&&43429 #& 342L9 P2'&%882L U892' #'T4(L2 :+ %3
T.2 L#;%' (%92.
44
T.2 '2&P%8928T (%$$4&&4%8 #(T29 14T. A'#=2 #;U&2 %3
94&('2T4%8 #$%U8T48A T% L#(M %3 ,U'4&94(T4%8 1.28 4T UP.2L9 T.2
348948A& %3 T.2 L#;%' #';4T2' T.#T .2'248 P2T4T4%82' .#9
(%8&T'U(T4=2LL 94&$4&&29 32'$48 #A#%, ,'., 3'%$ 2$PL%L$28T.
The petition has no merit.
#rt. :+ of the Labor (ode provides"
#'T. :+. !overage. - The provisions of this Title D1or!ing (onditions and
'est PeriodsF shall apply to employees in all establishments and
underta!ings whether for profit or not, but not to government employees,
field personnel, members of the family of the employer who are
dependent on him for support, domestic helpers, persons in the personal
service of another, and wor!ers who are paid by results as determined by
the &ecretary of Labor in appropriate regulations.
. . . . . . . . . .
H3ield personnelI shall refer to non-agricultural employees who regularly
perform their duties away from the principal place of business or branch
office of the employer and whose actual hours of wor! in the field cannot
be determined with reasonable certainty.
Petitioner argues essentially that since the wor! of private respondent is performed
away from its principal place of business, it has no way of verifying his actual hours of
wor! on the vessel. 4t contends that private respondent and other fishermen in its
employ should be classified as Hfield personnelI who have no statutory right to service
incentive leave pay.
4n the case of "nion of #ilipro Emplo$ees %"#E& v. 'icar,
v
D>F this (ourt e<plained the
meaning of the phrase Hwhose actual hours of wor! in the field cannot be determined
with reasonable certaintyI in #rt. :+ of the Labor (ode, as follows"
$oreover, the requirement that Hactual hours of wor! in the field cannot be
determined with reasonable certaintyI must be read in conjunction with
'ule 4=, ;oo! 444 of the 4mplementing 'ules which provides"
'ule 4= .olidays with Pay
&ection ). (overage - This rule shall apply to all employees
e<cept"
. . . . . . . . . .
/e0 3ield personnel and other employees (hose time and
performance is unsupervised )$ the emplo$er <<< /4talics
supplied0
1hile contending that such rule added another element not found in the
law /Rollo, p. )60, the petitioner nevertheless attempted to show that its
affected members are not covered by the abovementioned rule. The
petitioner asserts that the companyJs sales personnel are strictly
supervised as shown by the &%9 /&upervisor of the 9ay0 schedule and
the company circular dated $arch )>, )*:C /#nne<es + and 6, Rollo, pp.
>6->>0.
(ontrary to the contention of the petitioner, the (ourt finds that the
aforementioned rule did not add another element to the Labor (ode
definition of field personnel. The clause Hwhose time and performance is
unsupervised by the employerI did not amplify but merely interpreted and
e<pounded the clause Hwhose actual hours of wor! in the field cannot be
determined with reasonable certainty.I The former clause is still within the
scope and purview of #rticle :+ which defines field personnel. .ence, in
deciding whether or not an employeeJs actual wor!ing hours in the field
can be determined with reasonable certainty, query must be made as to
whether or not such employeeJs time and performance is constantly
supervised by the employer.
vi
DKF
#ccordingly, it was held in the aforementioned case that salesmen of 8estle
Philippines, 4nc. were field personnel"
4t is undisputed that these sales personnel start their field wor! at :"55
a.m. after having reported to the office and come bac! to the office at C"55
p.m. or C"65 p.m. if they are $a!ati-based.
The petitioner maintains that the period between :"55 a.m. to C"55 or C"65
p.m. comprises the sales personnelJs wor!ing hours which can be
determined with reasonable certainty.
The (ourt does not agree. The law requires that the actual hours of wor!
in the field be reasonably ascertained. The company has no way of
determining whether or not these sales personnel, even if they report to
the office before :"55 a.m. prior to field wor! and come bac! at C"65 p.m.,
really spend the hours in between in actual field wor!.
vii
DEF
4n contrast, in the case at bar, during the entire course of their fishing voyage,
fishermen employed by petitioner have no choice but to remain on board its vessel.
#lthough they perform non-agricultural wor! away from petitionerJs business offices,
the fact remains that throughout the duration of their wor! they are under the
effective control and supervision of petitioner through the vesselJs patron or master as
the 8L'( correctly held.
viii
D:F
8either did petitioner gravely abuse its discretion in ruling that private respondent had
constructively been dismissed by petitioner. &uch factual finding of both the 8L'(
and the Labor #rbiter is based not only on the pleadings of the parties but also on a
medical certificate of fitness which, contrary to petitionerJs claim, private respondent
presented when he reported to wor! on $ay +:, )**5.
i<
D*F #s the 8L'( held"
#nent grounds /a0 and /b0 of the appeal, the respondent, in a nutshell,
would li!e us to believe that the #rbiter abused his discretion /or seriously
erred in his findings of facts0 in giving credence to the factual version of
the complainant. ;ut it is settled that H/10hen confronted with conflicting
versions of factual matters,I the Labor #rbiter has the Hdiscretion to
determine which party deserves credence on the basis of evidence
received.I DAelmart 4ndustries /Phils.0, 4nc. vs. Leogardo, )>> &('# C56,
C5*, L-E5>CC, 8ovember >, )*:EF. #nd besides, it is settled in this
jurisdiction that Hto constitute abandonment of position, there must be
concurrence of the intention to abandon and some overt acts from which it
may be inferred that the employee concerned has no more interest in
wor!ingI /9agupan ;us (o., 4nc. vs. 8L'(, )*) &('# 6+:0, and that the
filing of the complaint which as!ed for reinstatement plus bac!wages
/'ecord, p. +50 is inconsistent with respondentsJ defense of abandonment
/.ua ;ee &hirt 3actory vs. 8L'(, ):: &('# >:K0.
<
D)5F
4t is trite to say that the factual findings of quasi-judicial bodies are generally binding
as long as they are supported substantially by evidence in the record of the case.
<i
D))F
This is especially so where, as here, the agency and its subordinate who heard the
case in the first instance are in full agreement as to the facts.
<ii
D)+F
#s regards the labor arbiterJs award which was affirmed by respondent 8L'(, there
is no reason to apply the rule that reinstatement may not be ordered if, as a result of
the case between the parties, their relation is strained.
<iii
D)6F 2ven at this late stage of
this dispute, petitioner continues to reiterate its offer to reinstate private respondent.
<iv
D)CF *#EREFORE, the petition is 94&$4&&29. &% %'92'29.
G.R. No. 12047' +,-e 2', 1999
&LTRA %ILLA FOOD #A&S, .-/0or ROSIE TIO, petitioners,
vs.
RENATO GENISTON, NATIONAL LA$OR RELATIONS COMMISSION !RESIDING
COMMISSIONER 4T# DI%ISION", respondents.

1A!&NAN, J.:
This special civil action for certiorari stems from a complaint for illegal dismissal filed
by 'enato Aeniston, private respondent herein, against the Ultra =illa 3ood .aus
restaurant and@or its alleged owner 'osie Tio. Private respondent alleged that he was
employed as a ?do it all guy.? acting as waiter, driver, and maintenance man, in said
restaurant. .is employment therein spanned from $arch ), )*:* until he was
dismissed on $ay )6, )**+. 3or his services, private respondent was paid PK5.55 in
)*:*, PE5.55 in )**5, P:5.55 in )**) and P*5.55 when he was dismissed in )**+.
9uring the elections of $ay )), )**+, private respondent acted as a Poll 1atcher for
the 8ational Union of (hristian 9emocrats. The counting of votes lasted until 6"55
p.m. the ne<t day, $ay )+. Private respondent did not report for wor! on both days on
account of his poll-watching.
Upon arriving home on $ay )+, private respondent discovered that Tio had phoned
his mother that morning. Tio allegedly gave his mother ?an inscrutable verbal
lashing,? and informed the latter that private respondent was dismissed from wor!. %n
$ay )6, )**+, private respondent went to Tios residence to plead his case only to be
subjected to a ?brow beating? by Tio who even attempted to force him to sign a
resignation letter.
Private respondent prayed that the Labor #rbiter order petitioner Tio to pay him
overtime pay, premium pay, holiday pay, service incentive leave pay, salary
differential and )6th month pay. .e li!ewise prayed for reinstatement plus bac!wages
or, in the alternative, separation pay, as well as moral damages, e<emplary damages
and attorneys fees.
Petitioner 'osie Tio, on the other hand, maintained that private respondent was her
personal driver, not an employee of the Ultra =illa 3ood .aus. #s petitioners
personal driver, private respondent was required to report for wor! at E"55 a.m. to
drive petitioner to $andaue (ity where petitioner wor!ed as the $anager of the (3(
(orporation. #ccordingly, private respondent was paid PK>.55 a day which was
gradually increased to PE5.55 then to P*5.55. Private respondent was li!ewise given
free meals as well as )6th month pay at the end of the year. Petitioner denied
dismissing private respondent whom she claimed abandoned his job.
Though well aware that $ay )+, )**+ was a holiday, petitioner called up private
respondent that day to as! him to report for wor! as she had some important matters
to attend to. Private respondents wife, however, coldly told petitioner that private
respondent was helping in the counting of ballots. Petitioner was thus forced to hire
another driver to replace private respondent. Private respondent came bac! a wee!
after but only to collect his salary.
The Labor #rbiter found that private respondent was indeed petitioners personal
driver. Private respondents claim that he was an employee of the Ultra =illa 3ood
.aus was deemed by the Labor #rbiter to be a mere afterthought, considering that"
. . . . 4n his verified complaint, complainant states that the nature of
his wor! position was a driver. 4f it DwereF true that he was made to
perform these functions as a waiter, it would be incongruous with
the position of a driver. The nature of the position of a waiter is one
that requires him to be at the place of wor! at all times while that of
a driver, complainant had to be away from the restaurant at all
times. #t any rate, an admission is made that he was only a
personal driver of the individual respondent.
1
The ?admission? referred to above is contained in the mandatory conference order
issued by the Labor #rbiter on ,anuary )5, )**C, to wit"
#lso on this date, the following matters were threshed out"
That complainant started his employment with the individual
respondent as the latters personal driver on $arch ), )*:* and the
last day of his service was on $ay )6, )**+7
2
The Labor #rbiter concluded that private respondent, being a personal driver, was not
entitled to overtime pay, premium pay, service incentive leave pay and )6th month
pay. Private respondents claim for salary differential was li!ewise denied since he
?received a daily salary of P*5.55 which is more than that set by law.?
'
8either was private respondent awarded separation pay. 1hile the hiring of a
substitute driver amounted to a constructive dismissal, the Labor #rbiter ruled that the
same was justified in view of petitioners ?dire need? for the services of a driver.
The Labor #rbiter, however, noted that petitioner failed to comply with procedural due
process in dismissing private respondent and thus ordered the former to indemnify
the latter the amount of P),555.55. The dispositive portion of the Labor #rbiters
decision states"
1.2'23%'2 in the light of the foregoing premises, judgment is
rendered finding complainants dismissal for a valid cause.
(omplaint is hereby ordered dismissed. .owever, respondent is
directed to indemnify complainant the amount of P),555.55 for
failure to observe the due process requirement before dismissing
the complainant.
&% %'92'29.
4
;oth parties appealed the decision of the Labor #rbiter to the 8ational Labor
'elations (ommission /8L'(0.
Petitioner questioned the Labor #rbiters decision insofar as it required her to pay
private respondent the amount of P).555.55. Petitioner maintained that private
respondent abandoned his job, and was not constructively dismissed as found by the
Labor #rbiter. Petitioner concluded that she could not be held liable for failing to
observe procedural due process in dismissing private respondent, there being no
dismissal to spea! of.
%n the other hand, private respondent denied admitting that he was employed as
petitioners personal driver. .e alleged that what was admitted during the mandatory
conference was that he was made to drive for the manager and his wife /petitioner0
on top of his other duties which were necessary and desirable to petitioners
business. Private respondent li!ewise maintained his claim that he was unjustly
dismissed, contending that his absence on $ay )) and )+, )**+ did not warrant
dismissal since those days were official holidays.
The 8L'( found private respondents arguments meritorious, and ordered petitioner
to reinstate private respondent and to pay him the sum of PC>,6)).>> in bac!wages,
overtime pay, premium pay for holiday and rest days, )6th month pay, and service
incentive pay. Thus"
1.2'23%'2, the respondents are hereby ordered to reinstate the
complainant with bac!wages fi<ed for K months as he delayed in
filing this case.
The respondents are li!ewise ordered to pay the complainant his
overtime pay, holiday pay, premium pay for holiday and rest day,
)6th month pay, and service incentive leave covering the period
from %ctober +:, )**5 to $ay )5, )**+.
(omplainants bac!wages up to the time of this 9ecision and his
other monetary claims as computed by 8azarina (. (abahug,
3iscal 2<aminer 44 of the (ommission are the following"
<<< <<< <<<
&U$$#'L
)0 ;ac!wages P )C,)65.55
+0 %vertime Pay P ++,5K5.55
60 .oliday Pay7 Premium pay for .oliday P
),>>C.55
C0 Premium Pay for 'est 9ay P ),K:6.55
>0 )6th $onth Pay P >,C:C.>>
K0 &ervice 4ncentive Leave P C55.55
6)).>>
&% %'92'29.
(
#cting on the parties respective motions for reconsideration, the 8L'( granted
private respondent separation pay in lieu of reinstatement on account of the
establishments closure but denied his prayer for moral, actual and e<emplary
damages, and attorneys fees. The 8L'( also denied petitioners motion, reiterating
its earlier ruling that private respondent was an employee of the Ultra =illa 3ood
.aus.
Two issues are thus presented before this (ourt"
/)0 1hether private respondent was an employee
of the Ultra =illa 3ood .aus or the personal driver
of petitioner7 and
/+0 1hether private respondent was illegally
dismissed from employment.
4
The &olicitor Aeneral, in his ?$anifestation and $otion 4n Lieu of (omment,? agrees
with petitioners submission that private respondent was her personal driver.
6
1e find that private respondent was indeed the personal driver of petitioner, and not
an employee of the Ultra =illa 3ood .aus. There is substantial evidence to support
such conclusion, namely"
/)0 Private respondents admission during the mandatory
conference that he was petitioners personal driver.
7
/+0 (opies of the Ultra =illa 3ood .aus payroll which do not contain
private respondents name.
)
/60 #ffidavits of Ultra =illa 3ood .aus employees attesting that
private respondent was never an employee of said establishment.
9
/C0 Petitioner Tios undisputed allegation that she wor!s as the
branch manager of the (3( (orporation whose office is located in
$andaue (ity. This would support the Labor #rbiters observation
that private respondent position as driver would be ?incongruous?
with his function as a waiter of Ultra =illa 3ood .aus.
10
/>0 The ,oint #ffidavit of the warehouseman and warehouse
chec!er of the (3( (orporation stating that"
'enato Aeniston usually driveDsF $rs. Tio from her residence to the
office. Thereafter, $r. Aeniston will wait for $rs. Tio in her car.
$ost of the time, 'enato Aeniston slept in the car of $rs. Tio and
will be awa!ened only when the latter will leave the office for lunch.
$r. Aeniston will again drive $rs. Tio to the office at around +"55
ocloc! in the afternoon and thereafter the former will again wait for
$rs. Tio at the latters car until $rs. Tio will again leave the office to
ma!e her rounds at our branch office at the downtown area.
11
4n contrast, private respondent has not presented any evidence other than his self-
serving allegation to show that he was employed in the Ultra =illa 3ood .aus. %n this
issue, therefore, the evidence weighs heavily in petitioners favor. The Labor #rbiter
thus correctly ruled that private respondent was petitioners personal driver and not
an employee of the subject establishment.
#ccordingly, the terms and conditions of private respondents employment are
governed by (hapter 444, Title 444, ;oo! 444 of the Labor (ode
12
as well as by the
pertinent provisions of the (ivil (ode.
1'
Thus, #rticle )C) of the Labor (ode provides"
#rt. )C). (overage. B This (hapter shall apply to all persons
rendering services in households for compensation.
9omestic or household service? shall mean services in the
employers home which is usually necessary or desirable for the
maintenance and enjoyment thereof and includes ministering to the
personal comfort and convenience of the members of the
employers household, including services of famil$ drivers.
/2mphasis supplied.0
(hapter 444, Title 444, ;oo! 444, however, is silent on the grant of overtime pay, holiday
pay, premium pay and service incentive leave to those engaged in the domestic or
household service.
$oreover, the specific provisions mandating these benefits are found in ;oo! 444, Title
4 of the Labor (ode,
14
and #rticle :+, which defines the scope of the application of
these provisions, e<pressly e<cludes domestic helpers from its coverage"
#rt. :+. (overage. B The provision of this title shall apply to
employees in all establishments and underta!ings whether for profit
or not7 but not to government employees, managerial employees,
field personnel, members of the family of the employer who are
dependent on him for support, domestic helpers, persons in the
personal service of another, and wor!ers who are paid by results as
determined by the &ecretary of Labor in appropriate regulations.
/2mphasis supplied.0
The limitations set out in the above article are echoed in ;oo! 444 of the
%mnibus 'ules 4mplementing the Labor (ode.
1(
(learly then, petitioner is not obliged by law to grant private respondent any of these
benefits.
2mploying the same line of analysis, it would seem that private respondent is not
entitled to )6th month pay. The 'evised Auidelines on the 4mplementation of the )6th
$onth Pay Law also e<cludes employers of household helpers from the coverage of
Presidential 9ecree 8o. :>), thus"
+. 2<empted 2mployers
The following employers are still not covered by P.9. 8o. :>)"
a. . . .7
b. 2mployers of household helpers . . .7
c. . . .,
d. . . . .
8evertheless, we deem it just to award private respondent )6th month pay in view of
petitioners practice of according private respondent such benefit. 4ndeed, petitioner
admitted that she gave private respondent )6th month pay every 9ecember.
16
44
1e come now to the issue of private respondents dismissal. Petitioner submits that
private respondent abandoned his job, referring to wor! as an election watcher
instead.
1e do not agree. To constitute abandonment, two requisites must concur" /)0 the
failure to report to wor! or absence without valid or justifiable reason, and /+0 a clear
intention to sever the employer-employee relationship as manifested by some over
acts, with the second requisites as the more determinative factor.
17
The burden of
proving abandonment as a just cause for dismissal is on the employer.
1)
Petitioner
failed to discharge this burden. The only evidence adduced by petitioner to prove
abandonment is her affidavit, the pertinent portion of which states"
%n $ay )+, )**+, a day after the election, complainant was again
absent. &ince it was a holiday and 4 have no wor! on that day, 4 just
did not bother to call up complainant. #lthough the following day
was still a holiday, 4 called up complainant to inform him that he has
to report for wor! as 4 will report to the office to do some important
things there. Unfortunately, complainants wife instead coldly told
me that complainant was fetched by the latters uncle to help in the
counting of ballots. 4 then told his wife to let complainant choose
between his job with me or that of election watcher. The following
day, 4 was informed again by complainants wife that he is no longer
interested to wor! with me as he is earning more as election
watcher. 4 was really disenchanted to !now his responDseF as all of
a sudden, 4 have no driver to drive me to my place of wor!.
8evertheless, 4 have no other choice to accept it as 4 can not also
forced him to continue wor!ing with me. .ence, 4 was really
inconvenience for about a wee! due to the absence of a
driver.*+(phi*.n,t
(omplainant then collected his salary after one wee!s absence.
19
4t is quite unbelievable that private respondent would leave a stable and relatively well
paying job as petitioners family driver to wor! as an election watcher. Though the
latter may pay more in a day, elections in this country are so far in between that it is
unli!ely that any person would abandon his job to embar! on a career as an election
watcher, the functions of which are seasonal and temporary in nature. (onsequently,
we do not find private respondent to have abandoned his job. .is dismissal from
petitioners employ being unjust, petitioner is entitled to an indemnity under #rticle
)C* of the Labor (ode"
20
#rt. )C*. -ndemnit$ for un.ust termination of services. B 4f the
period of household service is fi<ed, neither the employer nor the
househelper may terminate the contract before the e<piration of the
term, e<cept for a just cause. -f the househelper is un.ustl$
dismissed he or she shall )e paid the compensation alread$
earned plus that for fifteen %*/& da$s )$ (a$ of indemnit$.
4f the househelper leaves without justifiable reason he or she shall
forfeit any unpaid salary due him or her not e<ceeding fifteen /)>0
days. /2mphasis supplied.0
Petitioner li!ewise concedes that she failed to comply with due process in dismissing
private respondent since private respondent had already abandoned his job.
21
#s we
have shown earlier however, petitioners theory of abandonment has no leg to stand
on, and with it, her attempts to justify her failure to accord due process must also fail.
#ccordingly, private respondent is ordered to pay private respondent the sum of
P),555.55.
22
1.2'23%'2, the decision of the 8ational Labor 'elations (ommission is hereby
'2=2'&29 and a new one entered declaring"
/)0 Private respondent 'enato Aeniston, the
personal driver of petitioner 'osie Tio, and not an
employee of the Ultra =illa 3ood .aus7
/+0 The dismissal of private respondent to be
without a valid cause and without due process.
#ccordingly, petitioner 'osie Tio is ordered to
pay private respondent7
/a0 Thirteenth $onth Pay to be
computed in accordance with
the 'ules and 'egulations, and
the 'evised Auidelines,
4mplementing Presidential
9ecree 8o. :>)7
/b0 4ndemnity equal to )> days
of his salary as personal driver
at the time of his unjust
dismissal7 and
/c0 4ndemnity in the sum of
P),555.55.
&% %'92'29.
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