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MIDTERM CASES REVIEWER

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1ST SET

1. St. Lukes Medical Center Employees

Association V. NLRC

1. Ms. Santos on Radiology Technological Act;

Police Power of the State; promotion of the
general welfare, protection of health, safety,
morals, security, peace and order etc.

2. DOLE V. Pawis ng Makabayang Obrero

Interpretation of the provisions of the CBA; More

than 3 hours of actual overtime work does not
equate to MORE THAN 3 hours of actual overtime
work with respect to the grant of FREE MEALS

3. Abella V. NLRC

WHETHER OR NOT PRIVATE RESPONDENTS ARE

ENTITLED TO SEPARATION PAY;

Art. 284. Closure of establishment and reduction of
personnel. In case of retrenchment to prevent losses
and in cases of closure or cessation of operations of
establishment or undertaking not due to serious
business losses or financial reverses, the separation pay
shall be equivalent to one (1) month pay or at least onehalf (1/2) month pay for every year of service whichever
is higher. A fraction of at least six (6) months shall be
considered one (1) whole year.xxx

Petitioner then contends that the aforequoted provision

violates the constitutional guarantee against
impairment of obligations and contracts, because when
she leased Hacienda Danao-Ramona on June 27, 1960,
neither she nor the lessor contemplated the creation of
the obligation to pay separation pay to workers at the
end of the lease.

Legislation impairing the obligation of contracts can be

sustained when it is enacted for the promotion of the
general good of the people, and when the means
adopted must be legitimate, i.e. within the scope of the
reserved power of the state construed in harmony with
the constitutional limitation of that power.

"all doubts in the implementation and interpretation of
the provisions of this Code including its implementing
rules and regulations shall be resolved in favor of
labor." The policy is to extend the applicability of the
decree to a greater number of employees who can
avail of the benefits under the law, which is in
consonance with the avowed policy of the State to give
maximum aid and protection to labor.

4. Manaya V. Alabang Country Club

Petitioner alleged that on 21 August 1989, he

was initially hired by the respondent as a
maintenance helper receiving a salary of
P198.00 per day. He was later designated as
company electrician.
Essentially, the issue raised by the respondent
before the NLRC in assailing the decision of
the Labor Arbiter pertains to the finding of the
Labor Arbiter that petitioner was a regular
employee of the respondent.; he Court of
Appeals granted the petition and ordered the
NLRC to give due course to respondents
appeal of the Labor Arbiters Decision.
Although said respondent alleges that
complainant was hired by its job contractor,
Supreme Construction, it failed to submit in
evidence the Contract of Service it had entered
into in order to establish the entry of
complainant as deployed by said company for
his duties at Alabang Country Club, Inc.
pursuant to the said Agreement.
Despite respondents disavowal of the existence
of the employer-employee relationship between
it and petitioner and its insistence that
petitioner is an employee first, of Supreme and
subsequently, of FSNC, the totality of the facts
and surrounding circumstances of the case
convey otherwise.

5. Clemente V. GSIS

Petitioner's husband, the late Pedro Clemente, was for

ten (10) years a janitor in the Department of Health; On
November 14, 1976, Pedro Clemente died of uremia due
to nephritis. Thereafter, petitioner filed with the GSIS a
claim for employees' compensation under the Labor
Code, as amended.

On February 4, 1977, the GSIS denied the claim of the

petitioner because the ailments of her husband are not
occupational diseases taking into consideration the
nature of his work and/or (sic) or were not in the least
causally related to his duties and conditions of work.

the petitioner bases her claim under the theory of

increased risk. She alleges that the deceased, as janitor of
the Ilocos Norte Skin Clinic, was exposed to patients
suffering from various kinds of skin diseases, including
Hansen's disease or leprosy. She avers that for ten
years, the deceased had to clean the clinic and its
surroundings and to freely mix with its patients. She
claims that it was during this time that he was attacked
by other dreadful diseases such as uremia, cancer of the
liver, and nephritis

When there are two or more possible explanations

regarding an issue of compensability that which favors
the claimant must be chosen.

The degree of proof required under P.D. 626; IS

MERELY SUBSTANTIAL EVIDENCE, WHICH
MEANS, "SUCH RELEVANT EVIDENCE AS A
REASONABLE MIND MIGHT ACCEPT AS
ADEQUATE TO SUPPORT A CONCLUSION"

6. COLGATE PALMOLIVE V. OPLE

respondent Union filed a Notice of Strike with the

Bureau of Labor Relations (BLR) on ground of unfair
labor practice consisting of alleged refusal to bargain,
dismissal of union officers/members; and coercing
employees to retract their membership with the union
and restraining non-union members from joining the
union.;

RESPONDENT MINISTER
DECISION WHICH:

RENDERED

(a) found no merit in the Union's Complaint for unfair

labor practice allegedly committed by petitioner xxx

(b) found the three salesmen, Peregrino Sayson,

Salvador Reynante & Cornelio Mejia "not without
fault" and that "the company
above named salesmen"

and at the same time respondent Minister DIRECTLY
CERTIFIED THE RESPONDENT UNION AS THE
COLLECTIVE BARGAINING AGENT FOR THE
SALES FORCE IN PETITIONER COMPANY AND
ORDERED THE REINSTATEMENT OF THE
THREE SALESMEN TO THE COMPANY ON THE
GROUND THAT THE EMPLOYEES WERE FIRST
OFFENDERS.

When respondent Minister directly certified the Union,

he in fact disregarded this procedure and its legal
requirements.

The order of the respondent Minister to reinstate the

employees despite a clear finding of guilt on their part is
not in conformity with law. Reinstatement is simply
incompatible with a finding of guilt. WHERE THE
TOTALITY OF THE EVIDENCE WAS SUFFICIENT
TO WARRANT THE DISMISSAL OF THE
EMPLOYEES THE LAW WARRANTS THEIR
DISMISSAL WITHOUT MAKING ANY
DISTINCTION BETWEEN A FIRST OFFENDER
AND A HABITUAL DELINQUENT.

7. Nicario V. NLRC

Emelita Nicario, was employed with respondent

company Mancao Supermarket, on June 6, 1986 as a
salesgirl and was later on promoted as sales supervisor.
However, private respondent terminated her services on
February 7, 1989.

Labor Arbiter Macaraig-Guillen awarded

petitioners claims for unpaid service incentive leave pay,
13th month pay, overtime pay and rest day pay for the
entire period of her employment, but dismissed her
claims for holiday premium pay and unpaid salaries
from February 3 to 5, 1989. (COMMISSION
AFFIRMED IN TOTO LABOR ARBITER
MACARAIG-GUILLENS DECISION.)

public respondent NLRC MODIFIED ITS

EARLIER RESOLUTION by deleting the award for
overtime pay and ruling that private respondent Antonio
Mancao is not jointly and severally liable with Mancao
Supermarket to pay petitioner the monetary award
adjudged.

Labor Arbiter Macaraig-Guillen, in her decision

dated May 23, 1994, awarded overtime pay to petitioner
by taking judicial notice of the fact that all Mancao
establishments open at 8:00 a.m. and close at 8:00 p.m

It is a wELL-SETTLED DOCTRINE, THAT IF
DOUBTS EXIST BETWEEN THE EVIDENCE
PRESENTED BY THE EMPLOYER AND THE
EMPLOYEE, THE SCALES OF JUSTICE MUST BE
TILTED IN FAVOR OF THE LATTER. It is a timehonored rule that in controversies between a laborer and
his master, DOUBTS REASONABLY ARISING FROM
THE EVIDENCE, OR IN THE INTERPRETATION
OF AGREEMENTS AND WRITING SHOULD BE
RESOLVED IN THE FORMERS FAVOR.

8. St. Theresas School of Novaliches V. NLRC

Petitioner Adoracion Roxas is the president of

St. Theresas School of Novaliches Foundation.
She hired private respondent, Esther Reyes,
on a contract basis;

private respondent became ill. She went on a

leave of absence from February 17 to 21 and
from February 24 to 28, 1992, such leave of
absence having been duly approved by
petitioner Roxas. On March 2, 1992, private
respondent reported for work, but she only
stayed in her place of work from 6:48 to 9:38
a.m. Thereafter, she never returned;

Petitioners theorize that the private respondent

abandoned her work. On the other hand, the
LATTER MAINTAINS THAT SHE WAS
REPLACED.

Labor Arbiter came out with a decision,

disposing, thus: WHEREFORE, responsive to
the foregoing, judgment is hereby ordered
declaring complainant (sic) dismissal from
the service illegal.

Second Division of the NLRC; disposing, as

follows: WHEREFORE, all premises considered, the
decision of the Labor Arbiter below dated November
12, 1993 is hereby reversed and set aside and another
one rendered, declaring the separation of Esther
Reyes from SERVICE LEGAL AND VALID.

HOWEVER, RESPONDENT IS DIRECTED TO PAY

THE BACK WAGES

Unfortunately for private respondent, she never

interposed any appeal from NLRCs ruling, upholding
the validity of her dismissal. It is therefore settled,
beyond the reach of this courts power of review, that
private respondents employment was validly
terminated; backwages has been defined as that for
EARNINGS LOST BY A WORKER DUE TO HIS
ILLEGAL DISMISSAL.

backwages has been defined as that for

EARNINGS LOST BY A WORKER DUE TO HIS
ILLEGAL DISMISSAL.

9. Bantolino V. Coca-Cola Bottlers

(62) employees of respondent Coca-Cola Bottlers, Inc.,

and its officers, Lipercon Services, Inc., Peoples
Specialist Services, Inc., and Interim Services, Inc.,
filed a complaint against respondents for unfair labor
practice through illegal dismissal, violation of their
security of tenure and the perpetuation of the Cabo
System;

Labor Arbiter decision ordering respondent company to
reinstate complainants to their former positions with all
the rights, privileges and benefits due regular
employees, and to pay their full back wages which, with
the exception of Prudencio Bantolino whose back wages
must be computed upon proof of his dismissal;

NLRC sustained the finding of the Labor Arbiter;

affidavits of some of the complainants xxx should not
have been given probative value for their failure to
affirm the contents thereof and to undergo crossexamination. As a consequence, the appellate court
DISMISSED THEIR COMPLAINTS FOR LACK OF
SUFFICIENT EVIDENCE.

CRUX OF THE CONTROVERSY REVOLVES

AROUND THE PROPRIETY OF GIVING
EVIDENTIARY VALUE TO THE AFFIDAVITS
DESPITE THE FAILURE OF THE AFFIANTS TO
AFFIRM THEIR CONTENTS AND UNDERGO THE
TEST OF CROSS-EXAMINATION.

ART. 221 OF THE LABOR CODE, THE RULES OF

EVIDENCE PREVAILING IN COURTS OF LAW DO
NOT CONTROL PROCEEDINGS BEFORE THE
LABOR ARBITER AND THE NLRC.; Under the Rules
of the Commission, the Labor Arbiter is given the
discretion to determine the necessity of a formal trial or
hearing. Hence, trial-type hearings are not even required
as the cases may be decided based on verified position
papers, with supporting documents and their affidavits.

Surely, petitioners who are non-lawyers could not be
faulted for the procedural lapse since they could not be
expected to be conversant with the nuances of the law,
much less knowledgeable with the esoteric technicalities
of procedure without the aid of counsel.

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10. Pfizer V. Galan

Respondent Edwin V. Galan was an employee of

petitioner Pfizer, Inc., a drug manufacturer. He was
initially hired in August 1982 as a professional sales
representative, commonly known as a medical
representative. He was a recipient of several company
awards, which eventually resulted in his promotion as
District Manager;

Labor Arbiter Rhett Julius Plagata declared that
respondent was illegally dismissed;e NLRC affirmed the
decision of the Labor Arbiter.

NLRC decreed the entry of judgment
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motion, issued a writ of execution;

In his comment respondent Galan seeks the

dismissal of the petition. He maintains that the Court of
Appeals was correct in dismissing the petition for
certiorari for having been filed out of time in light of the
amendment of Section 4, Rule 65 of the Rules of Court.

We firmly believe that the purpose of verification

was served in the instant case wherein the verification of
the petition filed with the Court of Appeals was done by
Ms. Cleofe R. Legaspi. It remains undisputed that Ms.
Legaspi was an Employment Specialist of petitioner
Pfizer, Inc., who coordinated and actually took part in the
investigation of the administrative charges against
respondent Galan. As such, she was in a position to verify
the truthfulness and correctness of the allegations in the
petition.

11. Sonza V. ABS-CBN

ABS-CBN signed an Agreement with the Mel and Jay

Management and Development Corporation (MJMDC)provide SONZAs services exclusively to ABS-CBN as talent
for radio and television.

SONZA wrote a letter to ABS-CBNs President,xxx Mr.

Sonza irrevocably resigned in view of recent events
concerning his programs and career.xxx

SONZA filed a complaint against ABS-CBN DID NOT PAY

HIS SALARIES, SEPARATION PAY, SERVICE
INCENTIVE LEAVE PAY, 13
BONUS, TRAVEL ALLOWANCE AND AMOUNTS DUE
UNDER THE EMPLOYEES STOCK OPTION PLAN
(ESOP) XXX ABS-CBN FILED A MOTION TO DISMISS
ON THE GROUND THAT NO EMPLOYER-EMPLOYEE
RELATIONSHIP EXISTED BETWEEN THE PARTIEs

LABOR ARBITER RENDERED HIS DECISION DATED 8

JULY 1997 DISMISSING THE COMPLAINT FOR LACK
OF JURISDICTION. (NLRC AFFIRMED)

INDEPENDENT CONTRACTORS OFTEN PRESENT

THEMSELVES TO POSSESS UNIQUE SKILLS,
EXPERTISE OR TALENT TO DISTINGUISH THEM
FROM ORDINARY EMPLOYEES. THE SPECIFIC
SELECTION AND HIRING OF SONZA, BECAUSE OF HIS
UNIQUE SKILLS, TALENT AND CELEBRITY STATUS
NOT POSSESSED BY ORDINARY EMPLOYEES, IS A
CIRCUMSTANCE INDICATIVE, BUT NOT CONCLUSIVE,
OF AN INDEPENDENT CONTRACTUAL RELATIONSHIP.

The clear implication is that SONZA had a free hand
on what to say or discuss in his shows provided he did not
attack ABS-CBN or its interests.

We find that ABS-CBN was not involved in the actual

performance that produced the finished product of SONZAs
work. ABS-CBN did not instruct SONZA how to perform his
job. ABS-CBN merely reserved the right to modify the
program format and airtime schedule for more effective
programming
shows and their standing in the ratings. Clearly, ABS-CBN did
not exercise control over the means and methods of
performance of SONZAs work.

A rADIO BROADCAST SPECIALIST WHO WORKS

UNDER MINIMAL SUPERVISION IS AN INDEPENDENT
CONTRACTOR.

Second, SONZA urges us to rule that he was ABSCBNs employee because ABS-CBN subjected him to its rules
and standards of performance.

The Agreement stipulates that SONZA shall abide with

the rules and standards of performance covering talents
ABS-CBN. The Agreement does not require SONZA to comply
with the rules and standards of performance prescribed for
employees of ABS-CBN. The CODE OF CONDUCT
IMPOSED ON SONZA UNDER THE AGREEMENT
REFERS TO THE TELEVISION AND RADIO CODE OF
THE KAPISANAN NG MGA BROADCASTER SA
PILIPINAS (KBP), WHICH HAS BEEN ADOPTED BY THE
COMPANY (ABS-CBN) AS ITS CODE OF ETHICS.

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12. NASECO V. NLRC

Eugenia C. Credo was an employee of the National

Service Corporation; she was administratively charged
by Sisinio S. Lloren, Manager of Finance and Special
Project and Evaluation Department of NASECO,
stemming from her non-compliance with Lloren's
memorandum- procedures in the company's Statement
of Billings Adjustment.

LABOR ARBITER RENDERED A DECISION: 1)

DISMISSING CREDO'S COMPLAINT, AND 2)
D I R E C T I N G N A S E C O TO PAY C R E D O
SEPARATION PAY EQUIVALENT TO ONE HALF
MONTH'S PAY FOR EVERY YEAR OF SERVICE.

(NLRC) which, on 28 November 1984, rendered a

decision: 1) directing NASECO to reinstate Credo to her
former position, or substantially equivalent position,
with six (6) months' backwages and without loss of
seniority rights and other privileges appertaining
thereto, and 2) dismissing Credo's claim for attorney's
fees, moral and exemplary damages.

Notice which apprises the employee of the particular

acts or omissions for which his dismissal is sought
AND the subsequent notice which informs the
employee of the employer's decision to dismiss him.

bELATEDLY ARGUED THAT THE NLRC HAS NO

JURISDICTION TO ORDER CREDO'S
REINSTATEMENT. NASECO CLAIMS THAT, AS A
GOVERNMENT CORPORATION WHICH IN TURN
IS A GOVERNMENT OWNED CORPORATION),
THE TERMS AND CONDITIONS OF
EMPLOYMENT OF ITS EMPLOYEES ARE
GOVERNED BY THE CIVIL SERVICE LAW, RULES
AND REGULATIONS.

On the premise that it is the 1987 Constitution that

governs the instant case because it is the Constitution in
place at the time of decision thereof, the NLRC has
jurisdiction to accord relief to the parties. As an
admitted subsidiary of the NIDC, in turn a subsidiary of
the PNB, the NASECO is a government-owned or
controlled corporation without original charter.

13. Juco V. NLRC

Petitioner Benjamin C. Juco was hired as a project

engineer of respondent National Housing Corporation;
he was separated from the service for having been
implicated in a crime of theft and/or malversation of
public funds.

petitioner filed a complaint for illegal dismissal against

the NHC with the Department of Labor; Labor Arbiter
rendered a decision dismissing the complaint on the
ground that the NLRC had no jurisdiction over the case.

ELEVATED THE CASE TO THE NLRC WHICH

RENDERED A DECISION ON DECEMBER 28, 1982,
REVERSING THE DECISION OF THE LABOR
ARBITER

SUPREME COURT The decision of the Labor Arbiter

dismissing the case before it for lack of jurisdiction is
REINSTATED.

petitioner FILED WITH THE CIVIL SERVICE

COMMISSION a complaint for illegal dismissal

respondent NLRC thru Labor Arbiter Manuel R. Caday

ruled that petitioner was illegally dismissed from his
employment by respondent as there was evidence in the
record that the criminal case against him was purely
fabricated, prompting the trial court to dismiss the
charges against him. Hence, he concluded that the
dismissal was illegal as it was devoid of basis, legal or
factual.

In the case at bench, the National Housing Corporation

is a government owned corporation organized in 1959
in accordance with Executive Order No. 399, otherwise
known as the Uniform Charter of Government
Corporation ) owned by the Government from its
incorporation under Act 1459, the former corporation
law

Thus, the NLRC erred in dismissing petitioners

complaint for lack of jurisdiction because the rule now
is that the Civil Service now covers only governmentowned or controlled corporations with original charters.
[if

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INCORPORATED UNDER THE CORPORATION

LAW, ITS RELATIONS WITH ITS PERSONNEL ARE
GOVERNED BY THE LABOR CODE AND COME
UNDER THE JURISDICTION OF THE NATIONAL
LABOR RELATIONS COMMISSION.

14. Austria V. NLRC

Private Respondent Central Philippine Union

Mission Corporation of the Seventh-Day Adventists; Pastor
of the SDA until 31 October 1991, when his services were
terminated;
Mr. Eufronio Ibesate, the treasurer of the Negros Mission
asking him to admit accountability and responsibility for the
church tithes and offerings

petitioner
misappropriation of denominational funds, willful breach of
trust, serious misconduct, gross and habitual neglect of duties,
and commission of an offense against the person of employers
duly authorized representative, as grounds for the termination
of his services.;
LABOR ARBITER CESAR D. SIDEO
RENDERED A DECISION IN FAVOR OF PETITIONER

NLRC:WHEREFORE, the Decision appealed from is

hereby VACATED and a new one ENTERED dismissing this
case for want of merit.

DECISION OF THE LABOR ARBITER

FEBRUARY 15, 1993 IS REINSTATED.

DATED

NLRC, without ruling on the merits of the case,

reversed itself once again, sustained the argument posed by
private respondents and, accordingly, dismissed the complaint
of petitioner.

Private respondents contend that by virtue of the

doctrine of separation of church and state, the Labor Arbiter
and the NLRC have no jurisdiction to entertain the complaint
filed by petitioner.

The case at bar does not concern an ecclesiastical or

purely religious affair as to bar the State from taking
cognizance of the same. An ecclesiastical affair is one that
concerns doctrine, creed, or form or worship of the church, or
the adoption and enforcement within a religious association of
needful laws and regulations for the government of the
membership, and the power of excluding from such
associations those deemed unworthy of membership.

SIMPLY STATED, WHAT IS INVOLVED HERE IS

THE RELATIONSHIP OF THE CHURCH AS AN
EMPLOYER AND THE MINISTER AS AN EMPLOYEE. IT
IS PURELY SECULAR AND HAS NO RELATION
WHATSOEVER WITH THE PRACTICE OF FAITH,
WORSHIP OR DOCTRINES OF THE CHURCH.

As pointed out by the OSG in its memorandum, the

grounds invoked for petitioners dismissal, namely:
MISAPPROPRIATION OF DENOMINATIONAL FUNDS,
WILLFUL BREACH OF TRUST, SERIOUS MISCONDUCT,
GROSS AND HABITUAL NEGLECT OF DUTIES AND
COMMISSION OF AN OFFENSE AGAINST THE PERSON
OF HIS EMPLOYERS duly authorize representative, are all
based on Article 282 of the Labor Code which enumerates the
just causes for termination of employment.
IT IS PALPABLE THAT THE REASON FOR
PETITIONERS DISMISSAL FROM THE SERVICE IS NOT
RELIGIOUS IN NATURE. COUPLED WITH THIS IS THE
ACT OF THE SDA IN FURNISHING NLRC WITH A COPY
OF PETITIONERS LETTER OF TERMINATION.

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WHO IS AN EMPLOYER :

2ND SET

ART. 97- includes any person acting directly or indirectly in the interest of an employer in relation
to an employee and shall include the government and all its branches, subdivisions and
instrumentalities, all government-owned or controlled corporations and institutions, as well as nonprofit private institutions, or organizations.

ART. 167- means any person, natural or juridical, employing the services of the employee.

ART. 212- includes any person acting in the interest of an employer, directly or indirectly. The term
shall not include any labor organization or any of its officers or agents except when acting as
employer.

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WHO IS AN EMPLOYEE :

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ART. 97- includes any individual employed by an employer.

ART. 167- means any person compulsorily covered by the GSIS under Commonwealth Act
Numbered One hundred eighty-six, as amended, including the members of the Armed Forces of the
Philippines, and any person employed as casual, emergency, temporary, substitute or contractual, or
any person compulsorily covered by the SSS under Republic Act Numbered Eleven hundred sixtyone, as amended.

ART. 212- Employee includes any person in the employ of an employer. The term shall not be
limited to the employees of a particular employer, unless the Code so explicitly states. It shall
include any individual whose work has ceased as a result of or in connection with any current labor
dispute or because of any unfair labor practice if he has not obtained any other substantially
equivalent and regular employment.

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ARTICLE 97. Definitions. - As used in this Title:

(a) Person means an individual, partnership, association, corporation, business trust, legal
representative, or any organized group of persons.

(b) Employer includes any person acting directly or indirectly in the interest of an employer in
relation to an employee and shall include the government and all its branches, subdivisions and
instrumentalities, all government-owned or controlled corporations and institutions, as well as nonprofit private institutions, or organizations.

(c) Employee includes any individual employed by an employer.

(d) Agriculture includes farming in all its branches and, among other things, includes cultivation
and tillage of soil, dairying, the production, cultivation, growing and harvesting of any agricultural
and horticultural commodities, the raising of livestock or poultry, and any practices performed by a
farmer on a farm as an incident to or in conjunction with such farming operations, but does not

include the manufacturing or processing of sugar, coconuts, abaca, tobacco, pineapples or other
farm products.

(e) Employ includes to suffer or permit to work.

(f) Wage paid to any employee shall mean the remuneration or earnings, however
designated, capable of being expressed in terms of money, whether fixed or ascertained on a
time, task, piece, or commission basis, or other method of calculating the same, which is
payable by an employer to an employee under a written or unwritten contract of employment
for work done or to be done, or for services rendered or to be rendered and includes the fair
and reasonable value, as determined by the Secretary of Labor and Employment, of board,
lodging, or other facilities customarily furnished by the employer to the employee. Fair and
reasonable value shall not include any profit to the employer, or to any person affiliated with
the employer.

!
TESTS OF EMPLOYER-EMPLOYEE RELATIONSHIP:

!
A. TWO-TIERED TEST INVOLVING:

!

(1) the putative employers power to control the employee with respect to the means and methods

by which the work is to be accomplished; and

(2) the underlying economic realities of the activity or relationship.

This two-tiered test would provide us with a framework of analysis, which would take into
consideration the totality of circumstances surrounding the true nature of the relationship between
the parties. This is especially appropriate in this case where there is no written agreement or terms
of reference to base the relationship on; and due to the complexity of the relationship based on the
various positions and responsibilities given to the worker over the period of the latters
employment.

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B. EMPLOYER-EMPLOYEE RELATIONSHIP TEST

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!
ELEMENTS OF EMPLOYER-EMPLOYEE RELATIONSHIP:

!

We have consistently ruled that in determining the existence of an employer-employee relationship,

the elements that are generally considered are the following :

1.

the selection and engagement of the employee;

2.

the payment of wages;

3.

the power of dismissal; and

4.

the employer's power to control the employee with respect to the means and methods by
which the work is to be accomplished.

!
ARTICLE 106. Contractor or subcontractor. - Whenever an employer enters into a contract with
another person for the performance of the formers work, the employees of the contractor and of the
latters subcontractor, if any, shall be paid in accordance with the provisions of this Code.

In the event that the contractor or subcontractor fails to pay the wages of his employees in
accordance with this Code, the employer shall be JOINTLY AND SEVERALLY liable with his
contractor or subcontractor to such employees to the extent of the work performed under the
contract, in the same manner and extent that he is liable to employees directly employed by him.

The Secretary of Labor and Employment may, by appropriate regulations, restrict or prohibit the
contracting-out of labor to protect the rights of workers established under this Code. In so
prohibiting or restricting, he may make appropriate distinctions between labor-only contracting and
job contracting as well as differentiations within these types of contracting and determine who
among the parties involved shall be considered the employer for purposes of this Code, to prevent
any violation or circumvention of any provision of this Code.

There is labor-only contracting where the person supplying workers to an employer does not
(1) have substantial capital or investment in the form of tools, equipment, machineries, work
premises, among others, and (2) the workers recruited and placed by such person are
performing activities which are directly related to the principal business of such employer. In
such cases, the person or intermediary shall be considered merely as an AGENT of the employer
who shall be responsible to the workers in the same manner and extent as if the latter were
directly employed by him.

ARTICLE 107. Indirect employer. - The provisions of the immediately preceding article shall
likewise apply to any person, partnership, association or corporation which, not being an employer,
contracts with an independent contractor for the performance of any work, task, job or project.

ARTICLE 109. Solidary liability. - The provisions of existing laws to the contrary notwithstanding,
every employer or indirect employer shall be held responsible with his contractor or
subcontractor for any violation of any provision of this Code. For purposes of determining the
extent of their civil liability under this Chapter, they shall be considered as direct employers.

1. RUGA V. NLRC

petitioners were the fishermen-crew members of 7/B

Sandyman II, one of several fishing vessels owned and
operated by private respondent De Guzman Fishing
Enterprises;

upon arrival at the fishing port, petitioners were told by
Jorge de Guzman, president of private respondent, to
proceed to the police station at Camaligan, Camarines
Sur, for investigation on the report that they sold some of
their fish-catch at midsea to the prejudice of private
respondent. Petitioners denied the charge claiming that
the same was a countermove to their having formed a
labor union and becoming members of Defender of
Industrial Agricultural Labor Organizations and General
Workers Union (DIALOGWU)

National Labor Relations Commission promulgated its
resolution
a "joint fishing venture" relationship existed between
private respondent and petitioners.

!
To stress that there is an employer-employee relationship
between them and private respondent, petitioners invite
attention to the following: that they were directly hired by
private respondent through its general manager,
Arsenio de Guzman, and its operations manager, Conrado
de Guzman; that, except for Laurente Bautu, they had
been employed by private respondent from 8 to 15 years
in various capacities; that private respondent, through its
operations manager, supervised and controlled the
conduct of their fishing operations as to the fixing of the
schedule of the fishing trips, the direction of the fishing
vessel, the volume or number of tubes of the fish-catch
the time to return to the fishing port, which were
communicated to the patron/pilot by radio (single side
band); that they were not allowed to join other outfits
even the other vessels owned by private respondent
without the permission of the operations manager; that
they were compensated on percentage commission basis
of the gross sales of the fish-catch which were delivered
to them in cash by private respondent's cashier, Mrs.
Pilar de Guzman; and that they have to follow company
policies, rules and regulations imposed on them by
private respondent.

2. PHCCI V. FABURADA

petitioner PHCCI filed a motion to dismiss the

complaint on the ground that there is no
employer-employee relationship between them
as private respondents are all members and coowners of the cooperative.

NLRC affirmed the Labor Arbiter's decision.

Petitioner PHCCI contends that private
respondents are its members and are working
for it as volunteers.

The above elements are present here. Petitioner
PHCCI, through Mr. Edilberto Lantaca, Jr., its
Manager, hired private respondents to work for
it. They worked regularly on regular working
hours, were assigned specific duties, were paid
regular wages and made to accomplish daily
time records just like any other regular
employee. They worked under the supervision
of the cooperative manager.

3. CHAVEZ V. NLRC

Petitioner Pedro Chavez was hired as truck

driver of Private Respondent Supreme
Packaging, Inc.; Chavez requested to avail
himself of the benefits that a regular employees
were receiving but his request was denied;
Chavez filed before NLRC a complaint for
regularization. Later on he was dismissed by
SPI; He later on filed an amended complaint for
illegal dismissal

Manifestation of Power of Control of SPI to
Chavez



1

truck was owned by SPI



2

express instruction in the method
of delivery



3

instruction on parking of
delivery truck



4

instruction on when and where
Chavez would perform his task by issuing to
him gate passes and routing slips

Proof that Chavez is not an Independent

Contractor



1

Chavez did not own the truck



2

SPI did not have substantial
capitalization or investment



3

Delivery was exclusively done
for SPI for 10years

5. FRANCISCO V. NLRC

Angelina Francisco has held several positions in

Kasei Corporation, to wit: (1) Accountant and
Corporate Secretary; (2) Liaison Officer to the City
of Makati; (3) Corporate Secretary; and (4)Acting
Manager.

She performed the work of Acting Manager for five

years but later she was replaced by Liza R. Fuentes
as Manager. Then, Kasei Corporation reduced her
salary and was not paid her mid-year bonus
allegedly because the company was not earning
well. She made repeated follow-ups with the
company cashier but she was advised that the
company was not earning well. Ultimately, she did
not report for work and filed an action for
constructive dismissal before the labor arbiter.

There can be no other conclusion that she is an

employee of respondent Kasei Corporation. She was
selected and engaged by the company for
compensation, and is economically dependent upon
respondent for her continued employment in that
line of business. Her main job function involved
accounting and tax services rendered to the
corporation on a regular basis over an indefinite
period of engagement. The corporation hired and
engaged her for compensation, with the power to
dismiss for cause. More importantly, the
corporation had the power to control her with the
means and methods by which the work is to be
accomplished.

5. TAPE INC. V. SERVANA

Respondent filed a complaint for illegal dismissal and

non-payment of benefits against TAPE. He alleged that he
was first connected with Agro-Commercial Security
Agency but was later absorbed by TAPE as a regular
company guard;

On March 2, 2000, respondent received a memorandum

informing him of his impending dismissal on account of
TAPEs decision to contract the services of a professional
security agency;

He insisted that he was a regular employee having been

engaged to perform an activity that is necessary and
desirable to TAPEs business for 13 years;

TAPE averred that respondent was an independent

contractor falling under the talent group category and was
working under a special arrangement which is recognized
in the industry.

a. The selection and engagement of the employee

Respondent was first connected with Agro-Commercial
Security Agency, which assigned him to assist TAPE in
its live productions. When the security agencys contract
with RPN-9 expired, respondent was absorbed by TAPE ,
or in the latters language, retained as talent. Clearly,
respondent was hired by TAPE. Respondent presented
his identification card. It has been in held that in
business establishment, an identification card is usually
provided not just as a security measure but to mainly
identify the holder thereof as a bona fide employee of
the firm who issues it.

b. The payment of wages

Respondent claims to have been receiving P5,444.44 as
his monthly salary while TAPE prefers to designate such
amount as talent fees.

c. The power of dismissal

The Memorandum informing respondent of the
discontinuance of his service proves that TAPE had the
power to dismiss respondent.

d. The employers power to control the employee with
respect to the means and method by which the work is to
be accomplished.

Control is manifested in the bundy cards submitted by
respondent in evidence. He was required to report daily
and observe definite work hours.

6. SAN MIGUEL V. NLRC

The Labor Arbiter found, as earlier

stated, that Maliksi rendered service with Lipercon
from 1 April 1981 to February 1982 as budget
head assigned to SMC-Beer Division; from July
1983 to April 1985 with Skillpower as accounting
clerk assigned to SMC-Magnolia Division, then
from October 1988 to 1989
also with Skillpower as acting clerk assigned to
SMC-Magnolia Finance, and from October 1989 to
31 October 1990 with PHILSSEC assigned to
Magnolia Finance as accounting clerk. In all, it
appears that, while under the employ of either
Lipercon or Skillpower, Maliksi has undisputedly
rendered service with SMC for at least three years
and seven months;

The Court takes judicial notice of the

fact that Lipercon and Skillpower were declared to
be labor-only contractors,
providing as they do manpower services to the
public for a fee. The existence of an employeremployee relationship is factual and we give due
deference to the factual findings of both the NLRC
and the CA that an employer-employee
relationship existed between SMC (or its
subsidiaries) and Maliksi. Indeed, having served
SMC for an aggregate period of more than three
(3) years through employment contracts with these
two labor contractors, Maliksi should be
considered as SMCs regular employee. The hard
fact is that he was hired and re-hired by SMC to
perform administrative and clerical work that was
necessary to SMCs business on a daily basis.

We understand Maliksis desperation in

making his point clear to SMC, which unduly
refuses to acknowledge his status as a regular
employee. Instead, he was juggled from one
employment contract to another in a continuous
bid to circumvent labor laws. The act of hiring and
re-hiring workers over a period of time without
considering them as regular employees evidences
bad faith on the part of the employer.
supportFootnotes][17][endif]

circumstances, it is apparent that periods have

been imposed to preclude the acquisition of
tenurial security by the employee, the policy,
agreement or practice should be struck down as
contrary to public policy, morals, good customs or
public order.
any person who willfully causes loss or injury to
another in a manner that is contrary to morals,
good customs or public policy shall be liable for
the damage.

7. LIKHA-PMB V. BURLINGAME CORP.

LIKHA-PMPB filed a petition for certification

election before the DOLE which they sought to
represent the rank- and-file promo employees of
Burlingame Corporation;

Respondents filed a motion to dismiss and
averred that there is no employer- employee
relationship between it and the petitioners
members. They further alleged that the
petitioners are employees of F. Garil Manpower
Services (F. Garil) which they presented a copy
of its contract for manpower services with F.
Garil;

The contractual stipulations between Burlington
and F. Garil shows that any personnel found to
be inefficient, troublesome, uncooperative, and
not observing the rules and regulations set forth
by Burlingame shall be reported to F. Garil and
may be replaced upon request.

This circumstance shows that Burlingame has

control and supervision over workers supplied
by F. Garil. There is also an implied provision
on the replacement of personnel carried upon
the request by Burlingame is the power to fire
personnel. F. Garil is not an independent
contractor since it did not carry a distinct
business free from the control and supervision
of Burlingame.

The contractual stipulation of between
Burlingame and personnel provided by F. Garil
on the nonexistence of employer-employee
relationship has no legal effect because it is
contrary to law, morals, good customs, public
order or public policy. F.Garil was engage only
in labor-only contracting and considered merely
as an agent of Burlingame.

8. ALIVIADO V. P&G

P&G is principally engaged in the manufacture

and production of different consumer and health
products, which it sells on a wholesale basis to
various supermarkets and distributors. To
enhance consumer awareness and acceptance of
the products, P&G entered into contracts with
Promm-Gem and SAPS for the promotion and
merchandising of its products.

!
petitioners filed a complaint against P&G for
regularization, service incentive leave pay, and
other benefits, with damages. The LA dismissed
the case for lack of merit and ruled that there
was no employer- employee relationship
between the petitioners and P&G. He found that
the selection and engagement of the petitioners,
the payment of their wages, the power of
dismissal and control with respect to the means
and methods by which their work was
accomplished, were all done by Promm-Gem/
SAPS.

!
Promm-Gem and SAPS were
independent job contractors.

legitimate

Promm-Gem is a legitimate job contractor,

while SAPS is a labor-only contractor.
Therefore, the employees of SAPS are the
employees of P&G, SAPS being merely the
agent of P&G;

On the other hand, SAPS Articles of
Incorporation shows that it has a paid-in capital
of only little over P31k. There is no other
evidence presented to show how much its
working capital and assets are. Furthermore,
there is no showing of substantial investment in
tools, equipment, or other assets. It failed to
show that its paid-in capital is sufficient for its
6-month contract period with P&G to generate
its needed revenue to sustain its operations
independently. Instead, it could be readily seen
that its capital is not even sufficient for one
months payroll, which is pegged at little over
P44k

COCA COLA entered into a contract of janitorial services

with Bacolod Janitorial Services (BJS); considering his
familiarity with its premises. On 5 and 7 March 1992
Canonicato started painting the facilities of COCA COLA
and continued doing so several months thereafter or so for a
few days every time until 6 to 25 June 1993.

9.COCA-COLA BOTTLERS INC. V. NLRC



Goaded by information that COCA COLA employed
previous BJS employees who filed a complaint against the
company for regularization pursuant to a compromise
agreement,
against COCA COLA to the Labor Arbiter on 8 June 1993.

Labor Arbiter ruled that: (a) there was no employeremployee relationship between COCA COLA and Ramon
Canonicato because BJS was Canonicato's real employer;
(b)BJS was a legitimate job contractor;

The NLRC rejected on appeal the decision of the Labor
Arbiter on the ground that the janitorial services of
Canonicato were found to be necessary or desirable in the
usual business or trade of COCA COLA.

The NLRC accepted Canonicato's proposition that his work
with the BJS was the same as what he did while still a casual
employee of COCA COLA. In so holding the NLRC applied

Art. 280 of the Labor Code and declared that Canonicato
was a regular employee of COCA COLA and entitled to
reinstatement and payment of P18,105.10 in back wages.

In the instant case, the selection and engagement of the
janitors for petitioner were by BJS. The application form and
letter submitted by private respondent (Canonicato) to BJS
show that he acknowledged the fact that it was BJS who did
the hiring and not petitioner

BJS paid the wages of private respondent, as evidenced by
the fact that on July 15,1993, private respondent sent his
sister to BJS with a note authorizing her to receive his pay

Power of dismissal is also exercised by BJS and not
petitioner. BJS is the one that assigns the janitors to its
clients and transfers them when it sees fit. Since BJS is the
one who engages their services, then it only follows that it
also has the power to dismiss them when justified under the
c
i
r
c
u
m
s
t
a
n
c
e
s

Lastly, BJS has the power to control the conduct of the
janitors. The supervisors of petitioner, being interested in the
result of the work of the janitors, also give suggestions as to
the performance of the janitors, but this does not mean that
BJS has no control over them. The interest of petitioner is
only with respect to the result of their work. On the other
hand, BJS oversees the totality of their performance.

Manila Water Co. V Pena

Petitioner Manila Water Company, Inc. is one of the two

private concessionaires contracted by the Metropolitan
Waterworks and Sewerage System (MWSS) to manage
the water distribution system in the East Zone of Metro
Manila;

Under the Concession Agreement, petitioner undertook to

absorb former employees of the MWSS whose names and
positions were in the list furnished by the latter, while the
employment of those not in the list was terminated.
Private respondents, being contractual collectors of the
MWSS, were among the 121 employees not included in
the list; nevertheless, petitioner engaged their services
without written contract for three months.

Before the end of the three-month contract, the 121

collectors incorporated the Association Collectors Group,
Inc. (ACGI), which was contracted by petitioner to
collect charges for the Balara Branch. Subsequently, most
of the 121 collectors were asked by the petitioner to
transfer to the First Classic Courier Services, a newly
registered corporation

Petitioner on the other hand asserts that private

respondents were employees of ACGI, an independent
contractor. It maintained that it had no control and
supervision over private respondents manner of
performing their work except as to the results.

Thus, petitioner did not have an employer-employee

relationship with the private respondents, but

only a service contractor-client relationship with ACGI.

ACGI is an independent contractor but a labor- only

contractor.

First, ACGI does not have substantial capitalization or

investment in the form of tools, equipment, machineries,
work premises, and other materials, to qualify as an
independent contractor.

Second, the work of the private respondents was directly
related to the principal business or

operation of the petitioner. Being in the business of
providing water to the consumers in the East Zone, the
collection of the charges therefore by private respondents
for the petitioner can only be categorized as clearly
related to, and in the pursuit of the latters business.

Lastly, ACGI did not carry on an independent business or
undertake the performance of its service contract
according to its own manner and method, free from the
control and supervision of its principal, petitioner;

Under this factual milieu, there is no doubt that ACGI

was engaged in labor-only contracting, and as such, is
considered merely an agent of the petitioner.

11. SMC V. ABALLA

Petitioner San Miguel Corporation entered into a oneyear contract with the Sunflower Multi-Purpose
Cooperative;

!
Sunflower undertook and agreed to perform and provide
the company on a non exclusive basis for a period of one
year the following: Messengerial, Janitorial, Shrimp
harvesting and Sanitation;

!
Pursuant to the contract, Sunflower engaged private
respondents to render services at SMCs Bacolod Shrimp
Processing Plant. The contract was renewed and private
respondentd continued to perform their tasks. Later,
private respondents filed a complaint praying to be
declared as regular employees of SMC, with claims of
recovery of all benefits and privileges.

!
The following would show that sunflower is engaged in
labor only contracting: What appears is that Sunflower
does not have substantial capitalization or investment in
the form of tools, equipment, machineries, work premises
and other materials to qualify it as an independent
contractor.

And from the job description provided by SMC itself, the
work assigned to private respondents was directly related
to the aquaculture operations of SMC. Undoubtedly, the
nature of the work performed by private respondents in
shrimp harvesting, receiving and packing formed an
integral part of the shrimp processing operations of SMC.

!
As for janitorial and messengerial services, that they are
considered directly related to the principal business of the
employer has been jurisprudentially recognized.
Furthermore, Sunflower did not carry on an independent
business or undertake the performance of its service
contract according to its own manner and method, free
from the control and supervision of its principal, SMC, its
apparent role having been merely to recruit persons to
work for SMC.

12. EPARWA V. LICEO

11 security guards whom Eparwa assigned to LDCU from

1 December 1997 to 30 November 1998 filed a complaint
before the (NLRC); the complaint was filed against both
Eparwa and LDCU for underpayment of salary, legal
holiday pay, 13th month pay, rest day, service incentive
leave, night shift differential, overtime pay, and payment
for attorney's fees.

Is LDCU alone ultimately liable to the security guards for

the wage differentials and premium for holiday and rest
day pay?

For the security guards, the actual source of the payment

of their wage differentials and premium for holiday and
rest day work does not matter as long as they are paid.
This is the import of Eparwa and LDCU's soldiery
liability. Creditors, such as the security guards, may
collect from anyone of the solidary debtors.

LDCU's ultimate liability comes into play because of the

expiration of the Contract for Security Services. There is
no privity of contract between the security guards and
LDCU, but LDCU's liability to the security guards
remains because of Articles 106, 107 and 109 of the
Labor Code. Eparwa is already precluded from asking
LDCU for an adjustment in the contract price because of
the expiration of the contract, but Eparwa's liability to the
security guards remains because of their employeremployee relationship. In lieu of an adjustment in the
contract price, Eparwa may claim reimbursement from
LDCU for any payment it may make to the security
guards. However, LDCU cannot claim any
reimbursement from Eparwa for any payment it may
make to the security guards.

!


3RD SET

BY NATURE OF WORK

Hacienda Fatima v. National Federation of Sugarcane Workers Food & General Trade-

Seasonal workers who are called to work from time to time & are temporarily laid off during offseason are not separated from service in said period, but merely considered on leave until reemployed

ABS-CBN V. Nazareno-

ABS-CBN Rank-and-File Employees executed a Collective Bargaining Agreement (CBA) to be
effective during the period from December 11, 1996 to December 11, 1999. However, since
petitioner refused to recognize PAs as part of the bargaining unit, respondents were not included

to the CBA; The presumption is that when the work done is an integral part of the regular
business of the employer and when the worker, relative to the employer, does not furnish an
independent business or professional service, such work is a regular employment of such employee
and not an independent contractor.

BRENT SCHOOL, INC.DIMACHE vs. RONALDO ZAMORA and DOROTEO R.
ALEGRE-

Private respondent Doroteo R. Alegre was engaged as athletic director by petitioner Brent
School, Inc. at a yearly compensation of P20,000.00. The contract fixed a specific term for its
existence, five (5) years;

RESPONDENT ALEGRE'S EMPLOYMENT WAS TERMINATED UPON THE EXPIRATION
OF HIS LAST CONTRACT WITH BRENT SCHOOL ON JULY 16, 1976 WITHOUT THE
NECESSITY OF ANY NOTICE.

SINGER SEWING MACHINE COMPANY V. DRILON-

The monthly collection quota is a normal requirement. It is clear that the company and each
collecting agent intended that the company take control only over the amount of collection,
which is the result of the job performed; Since private respondents are not employees of the
company, they are not entitled to the constitutional right to join or form a labor organization for
purposes of collective bargaining.

Dumpit-Morillo vs. CA

Thelma Dumpit-Murillo was a regular employee under contemplation of law; -

In the case at bar, ABC had control over the performance of petitioners work. Noteworthy too, is
the comparatively low P28,000 monthly pay of petitioner vis the P300,000 a month salary of
Sonza, that all the more bolsters the conclusion that petitioner was not in the same situation as
Sonza.

PETITIONERS WORK WAS NECESSARY OR DESIRABLE IN THE USUAL BUSINESS OR
TRADE OF THE EMPLOYER which includes, as a pre-condition for its enfranchisement, its
participation in the governments news and public information dissemination.

In addition, her work was continuous for a period of four years. This repeated engagement under
contract of hire is indicative of the necessity and desirability of the petitioners work in private
respondent ABCs business.

ABS-CBN V. MARQUEZ

It is a matter of record that respondents have rendered almost five (5) YEARS OF
CONTINUOUS SERVICE TO PETITIONER, DOING WORK THAT IS NECESSARY AND
DESIRABLE TO THE USUAL BUSINESS OF THE LATTER. Hence, even granting on the
extreme that respondents were not performing work that is vital, necessary and indispensable
to the usual business of petitioner, nonetheless the second paragraph of Article 280 of the
Labor Code still applies.!

OROZCO V. CA

Orozco was engaged as a columnist by PDI; Orozco has not shown the PDI, acting through its
editors, dictated how she was to write or produce her articles each week. Aside from the
constraints presented by the space allocation of her column, there were no restraints on her
creativity.

!
BY PERIOD OF SERVICE

AUDION ELECTRIC V. NLRC-

complainant was employed by respondent Audion Electric Company on June 30, 1976 as

FABRICATOR AND CONTINUOUSLY RENDERED SERVICE ASSIGNED IN DIFFERENT
OFFICES OR PROJECTS AS HELPER ELECTRICIAN, STOCKMAN AND TIMEKEEPER.
He has rendered thirteen (13) YEARS OF CONTINUOUS, LOYAL AND DEDICATED
SERVICE WITH A CLEAN RECORD.

BY PROBATIONARY PERIOD

CALS POULTRY CORP V. ROCO-

WE AGREE WITH CALS CONTENTION AS UPHELD BY BOTH THE LABOR ARBITER
AND THE NLRC THAT CANDELARIAS SERVICES WAS TERMINATED WITHIN AND
NOT BEYOND THE 6-MONTH PROBATIONARY PERIOD. IN CEBU ROYAL V. DEPUTY
MINISTER OF LABOR,[IF !SUPPORTFOOTNOTES][13][ENDIF] OUR COMPUTATION OF
THE 6-MONTH PROBATIONARY PERIOD IS RECKONED FROM THE DATE OF
APPOINTMENT UP TO THE SAME CALENDAR DATE OF THE 6TH MONTH
FOLLOWING.!

!
MITSUBISHI MOTORS PHILS. VS. CHRYSLER PHIL LABOR UNION-

As clearly provided for in the last paragraph of Article 13, in computing a period, the first day shall
be excluded and the last day included. THUS, THE ONE HUNDRED EIGHTY (180) DAYS
COMMENCED ON MAY 27, 1996, AND ENDED ON NOVEMBER 23, 1996. The termination
letter dated November 25, 1996 was served on respondent Paras only at 3:00 a.m. of November 26,
1996. HE WAS, BY THEN, ALREADY A REGULAR EMPLOYEE OF THE PETITIONER
UNDER ARTICLE 281 OF THE LABOR CODE.

MARIWASA MANUFACTURING, INC., AND ANGEL T. DAZO, PETITIONERS, VS.
HON. VICENTE LEOGARDO, JR.-

After 6 months, he was informed that his work was unsatisfactory and had failed to meet the
required standards. To give him another chance, and with Dequilas written consent, Mariwasa
extended Dequilas probationary period for another three months;

Generally, the probationary period of employment is limited to six (6) months. The exception to
this general rule is when the parties to an employment contract may AGREE OTHERWISE,

such as when the same is established by company policy or when the same is required by the
nature of work to be performed by the employee.

!
LUMINADA VER BUISER, MA. CECILIA RILLOACUA & MA. MERCEDES P.
INTENGAN, PRs, vs. HON. VICENTE LEOGARDO, JR.-

WE, THEREFORE, HOLD & RULE THAT THE PROBATIONARY ET OF PRS SET TO 18
MOS. IS LEGAL & VALID & THAT THE RD & THE DEPUTY MINISTER OF LABOR &
ET COMMITTED NO ABUSE OF DISCRETION IN RULING ACCORDINGLY.

!
APPRENTICESHIP

!
NITTO ENTERPRISES vs. NLRC and ROBERTO CAPILI-

Petitioner Nitto Enterprises, a company engaged in the sale of glass and aluminum products,
hired Roberto Capili sometime in May 1990 as an apprentice machinist, molder and coremaker
as evidenced by an APPRENTICESHIP AGREEMENT FOR A PERIOD OF SIX (6)
MONTHS;

Nitto Enterprises did not comply with the requirements of the law. It is mandated that
apprenticeship agreements entered into by the employer and apprentice shall be entered only
in accordance with the apprenticeship program duly approved by the Minister of Labor and
Employment. THUS, THE APPRENTICESHIP AGREEMENT HAS NO FORCE AND
EFFECT; AND CAPILI IS CONSIDERED TO BE A REGULAR EMPLOYEE OF THE
COMPANY.

!
NATURE/INDICATORTS OF PROJECT EMPLOYMENT

COCOMANGAS HOTEL BEACH RESORT V. VISCA,

In the present case, respondents cannot be classified as project employees, since they worked
continuously for petitioners from three to twelve years without any mention of a "project" to
which they were specifically assigned. While they had designations as "foreman," "carpenter"
and "mason," they performed work other than carpentry or masonry.;

!
The Court is not persuaded by petitioners' submission that respondents' services are not
necessary or desirable to the usual trade or business of the resort. THE REPEATED AND
CONTINUING NEED FOR THEIR SERVICES IS SUFFICIENT EVIDENCE OF THE
NECESSITY, IF NOT INDISPENSABILITY, OF THEIR SERVICES TO PETITIONERS'
RESORT BUSINESS.

That respondents were regular employees is further bolstered by the following evidence:

(a) the SSS Quarterly Summary of Contribution Payments listing respondents as employees of
petitioners;

(b) the Service Record Certificates stating that respondents were employees of petitioners for
periods ranging from three to twelve years and all have given "very satisfactory performance";

(c) petty cash vouchers showing payment of respondents' salaries and holiday and overtime
pays.

!
ELEMENTS BEFORE A PROJECT EMPLOYEE BECOMES A REGULAR EMPLOYEE

!
MARAGUINOT V. NLRC-

A pROJECT EMPLOYEE OR A MEMBER OF A WORK POOL MAY ACQUIRE THE
STATUS OF A REGULAR EMPLOYEE when:

a.there is a CONTINUOUS REHIRING of project employees even after a cessation of project!

b.the tasks performed by the alleged project employee are VITAL AND NECESSARY TO
THE BUSINESS OF EMPLOYER!

The tasks of petitioners in LOADING MOVIE EQUIPMENT AND RETURNING IT TO

VIVAS WAREHOUSE AND FIXING THE LIGHTING SYSTEM WERE VITAL,
NECESSARY AND INDISPENSABLE TO THE USUAL BUSINESS OR TRADE OF THE
EMPLOYER.

PROJECT EMPLOYMENT COTERMINOUS

SABEROLA V. SUAREZ-

Petitioner, as an electrical contractor, depends for his business on the contracts that he is able to
obtain from real estate developers and builders of buildings. Thus, the work provided by petitioner
depends on the availability of such contracts or projects. The duration of the employment of his
work force is not permanent but coterminous with the projects to which the workers are assigned.

SANDOVAL SHIPYARD INC. V. NLRC-

Sandoval Shipyards, Inc. has been engaged in the building and repair of vessels. It contends that
each vessel is a separate project and that the employment of the workers is terminated with the
completion of each project;

THE COMPLETION OF THEIR WORK OR PROJECT AUTOMATICALLY TERMINATES
THEIR EMPLOYMENT, IN WHICH CASE, THE EMPLOYER IS, UNDER THE LAW,
ONLY OBLIGED TO RENDER A REPORT ON THE TERMINATION!

!
!
SAMSON V. NLRC-

44 TIMES REHIRED/28 YEARS OF SERVICE

!
D.M. CONSUNJI V. NLRC- LENGTH OF SERVICE IS NOT INDICATIVE OF REGULAR
EMPLOYMENT

WE HOLD THAT THE PRIVATE RESPONDENTS ARE PROJECT EMPLOYEES. THEIR

CONTRACTS OF EMPLOYMENT READILY SHOW THAT THE PRIVATE
RESPONDENTS WERE EMPLOYED WITH RESPECT TO A SPECIFIC PROJECT. The
private respondents in this case were WORKERS IN A CONSTRUCTION PROJECT OF THE
PETITIONER!

While employed with respect to a specific project, the contracts of employment between the private
respondents and the petitioner provide that the former were employed for a term of one (1) month
which was the estimated period for the project to be finished. The private respondents do not
even claim to be regular employees but merely that, as employees at the Cebu Super Block,
they were terminated before the completion of the project without just cause and due process.
As project employees, there is no showing that they were part of the work pool of the
petitioner construction company.

!
CIOCO V. C.E. CONSTRUCTION CORP-

REHIRING ON PROJECT TO PROJECT BASIS

!
CASERES V. UNIVERSAL ROBINA CORP.-

It must be noted that there were intervals in petitioners respective employment contracts, and
that their work depended on the availability of such contracts or projects. Consequently, the
employment of URSUMCOs work force was not permanent but co-terminous with the projects
to which the employees were assigned and from whose payrolls they were paid

The fACT THAT PETITIONERS WERE CONSTANTLY RE-HIRED DOES NOT IPSO
FACTO ESTABLISH THAT THEY BECAME REGULAR EMPLOYEES. THEIR
RESPECTIVE CONTRACTS WITH RESPONDENT SHOW THAT THERE WERE
INTERVALS IN THEIR EMPLOYMENT.

CASUAL EMPLOYMENT

KIMBERLY CLARK V. NLRC-

WHILE THE ACTUAL REGULARIZATION OF THESE EMPLOYEES ENTAILS THE
MECHANICAL ACT OF ISSUING REGULAR APPOINTMENT PAPERS AND
COMPLIANCE WITH SUCH OTHER OPERATING PROCEDURES AS MAY BE ADOPTED
BY THE EMPLOYER, IT IS MORE IN KEEPING WITH THE INTENT AND SPIRIT OF THE
LAW TO RULE THAT THE STATUS OF REGULAR EMPLOYMENT ATTACHES TO THE
CASUAL WORKER ON THE DAY IMMEDIATELY AFTER THE END OF HIS FIRST YEAR
OF SERVICE. TO RULE OTHERWISE, AND TO INSTEAD MAKE THEIR

REGULARIZATION DEPENDENT ON THE HAPPENING OF SOME CONTINGENCY OR

THE FULFILLMENT OF CERTAIN REQUIREMENTS, IS TO IMPOSE A BURDEN ON
THE EMPLOYEE WHICH IS NOT SANCTIONED BY LAW.

FIXED TERM EMPLOYMENT:

AMA V. AUSTRIA-

The letter of appointment was clear. Respondent was confirmed as Dean of AMA College,
Paraaque, effective from April 17, 2000 to September 17, 2000. IN NUMEROUS CASES
DECIDED BY THIS COURT, WE HAD TAKEN NOTICE, THAT BY WAY OF PRACTICE
AND TRADITION, THE POSITION OF DEAN IS NORMALLY AN EMPLOYMENT FOR
A FIXED TERM.[

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PUREFOODS V. NLRC-

The five-month period specified in private respondents employment contracts having been imposed
precisely to circumvent the constitutional guarantee on security of tenure should, therefore, be
struck down or disregarded as contrary to public policy or morals.

VIERNES V. NLRC

Complainants services as meter readers were contracted for hardly a months duration, or from
October 8 to 31, 1990.

The principle we have enunciated in Brent applies only with respect to fixed term
employments. While it is true that petitioners were initially employed on a fixed term basis as
their employment contracts were only for October 8 to 31, 1990, after October 31, 1990, they
were allowed to continue working in the same capacity as meter readers without the benefit of
a new contract or agreement or without the term of their employment being fixed anew. After
October 31, 1990, the employment of petitioners is no longer on a fixed term basis. THE
COMPLEXION OF THE EMPLOYMENT RELATIONSHIP OF PETITIONERS AND
PRIVATE RESPONDENT IS THEREBY TOTALLY CHANGED. PETITIONERS HAVE
ATTAINED THE STATUS OF REGULAR EMPLOYEES.!

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