Republic of the Philippines SUPREME COURT Manila FIRST DIVISION G.R. No. 89621 September 24, 1991 PEPSI COLA DISTRIBUTORS OF THE PHILIPPINES, INC., represented by its Plant General Manager ANTHONY B. SIAN, ELEAZAR LIMBAB, IRENEO BALTAZAR & JORGE HERAYA, petitioners, vs. HON. LOLITA O. GAL-LANG, SALVADOR NOVILLA, ALEJANDRO OLIVA, WILFREDO CABAÑAS & FULGENCIO LEGO, respondents. Aurelio D. Menzon for petitioners. Mario P. Nicolasora co-counsel for petitioners. Papiano L. Santo for private respondents. CRUZ, J.:p The question now before us has been categorically resolved in earlier decisions of the Court that a little more diligent research would have disclosed to the petitioners. On the basis of those cases and the facts now before us, the petition must be denied. The private respondents were employees of the petitioner who were suspected of complicity in the irregular disposition of empty Pepsi Cola bottles. On July 16, 1987, the petitioners filed a criminal complaint for theft against them but this was later withdrawn and substituted with a criminal complaint for falsification of private documents. On November 26, 1987, after a preliminary investigation conducted by the Municipal Trial Court of Tanauan, Leyte, the complaint was dismissed. The dismissal was affirmed on April 8, 1988, by the Office of the Provincial Prosecutor. Meantime, allegedly after an administrative investigation, the private respondents were dismissed by the petitioner company on November 23, 1987. As a result, they lodged a complaint for illegal dismissal with the Regional Arbitration Branch of the NLRC in Tacloban City on December 1, 1987, and decisions manded reinstatement with damages. In addition, they instituted in the Regional Trial Court of Leyte, on April 4, 1988, a separate civil complaint against the petitioners for damages arising from what they claimed to be their malicious prosecution. The petitioners moved to dismiss the civil complaint on the ground that the trial court had no jurisdiction over the case because it involved employee-employer relations that were exclusively cognizable by the labor arbiter. The motion was granted on February 6, 1989. On July 6, 1989, however, the respondent judge, acting on the motion for reconsideration, reinstated the complaint, saying it was "distinct from the labor case for damages now pending before the labor courts." The petitioners then came to this Court for relief. The petitioners invoke Article 217 of the Labor Code and a number of decisions of this Court to support their position that the private respondents civil complaint for damages falls under the jurisdiction of the labor arbiter. They particularly cite the case of Getz Corporation v. Court of Appeals, 1 where it was held that a court of first instance had no jurisdiction over the complaint filed by a dismissed employee "for unpaid salary and other employment benefits, termination pay and moral and exemplary damages." We hold at the outset that the case is not in point because what was involved there was a claim arising from the alleged illegal dismissal of an employee, who chose to complain to the regular court and not to the labor arbiter. Obviously, the claim arose from employee-employer relations and so came under Article 217 of the Labor Code which then provided as follows: ART. 217. Jurisdiction of Labor Arbiters and the Commission. — (a) The Labor Arbiters shall have the original and exclusive jurisdiction to hear and decide within thirty (30) working days after submission of the case by the parties for decision, the following cases involving all workers, whether agricultural or non-agricultural: 1. Unfair labor practice cases; 2. Those that workers may file involving wages, hours of work and other terms and conditions of employment;

3. All money claims of workers, including those based on non-payment or underpayment of wages, overtime compensation, separation pay and other benefits provided by law or appropriate agreement, except claims for employees' compensation, social security, medicare and maternity benefits; 4. Cases involving household services; and 5. Cases arising from any violation of Article 265 of this Code, including questions involving the legality of strikes and lockouts. (b) The Commission shall have exclusive appellate jurisdiction over all cases decided by labor Arbiters. 2 It must be stressed that not every controversy involving workers and their employers can be resolved only by the labor arbiters. This will be so only if there is a "reasonable causal connection" between the claim asserted and employee-employer relations to put the case under the provisions of Article 217. Absent such a link, the complaint will be cognizable by the regular courts of justice in the exercise of their civil and criminal jurisdiction. In Medina v. Castro-Bartolome, 3 two employees filed in the Court of First Instance of Rizal a civil complaint for damages against their employer for slanderous remarks made against them by the company president. On the order dismissing the case because it came under the jurisdiction of the labor arbiters, Justice Vicente Abad Santos said for the Court: It is obvious from the complaint that the plaintiffs have not alleged any unfair labor practice. Theirs is a simple action for damages for tortious acts allegedly committed by the defendants. Such being the case, the governing statute is the Civil Code and not the Labor Code. It results that the orders under review are based on a wrong premise. In Singapore Airlines Ltd. v. Paño, 4 where the plaintiff was suing for damages for alleged violation by the defendant of an "Agreement for a Course of Conversion Training at the Expense of Singapore Airlines Limited," the jurisdiction of the Court of First Instance of Rizal over the case was questioned. The Court, citing the earlier case of Quisaba v. Sta. Ines Melale Veneer and Plywood, Inc., 5 declared through Justice Herrera: Stated differently, petitioner seeks protection under the civil laws and claims no benefits under the Labor Code. The primary relief sought is for liquidated damages for breach of a contractual obligation. The other items demanded are not labor benefits demanded by workers generally taken cognizance of in labor disputes, such as payment of wages, overtime compensation or separation pay. The items claimed are the natural consequences flowing from breach of an obligation, intrinsically a civil dispute. In Molave Sales, Inc. v. Laron, 6 the same Justice held for the Court that the claim of the plaintiff against its sales manager for payment of certain accounts pertaining to his purchase of vehicles and automotive parts, repairs of such vehicles, and cash advances from the corporation was properly cognizable by the Regional Trial Court of Dagupan City and not the labor arbiter, because "although a controversy is between an employer and an employee, the Labor Arbiters have nojurisdiction if the Labor Code is not involved." The latest ruling on this issue is found in San Miguel Corporation v. NLRC, 7 where the above cases are cited and the changes in Article 217 are recounted. That case involved a claim of an employee for a P60,000.00 prize for a proposal made by him which he alleged had been accepted and implemented by the defendant corporation in the processing of one of its beer products. The claim was filed with the labor arbiter, who dismissed it for lack of jurisdiction but was reversed by the NLRC on appeal. In setting aside the appealed decision and dismissing the complaint, the Court observed through Justice Feliciano: It is the character of the principal relief sought that appears essential, in this connection. Where such principal relief is to be granted under labor legislation or a collective bargaining agreement, the case should fall within the jurisdiction of the Labor Arbiter and the NLRC, even though a claim for damages might be asserted as an incident to such claim. xxx xxx xxx Where the claim to the principal relief sought is to be resolved not by reference to the Labor Code or other labor relations statute or a collective bargaining agreement but by the general civil law,

the jurisdiction over the dispute belongs to the regular courts of justice and not to the Labor Arbiter and the NLRC. In such situations, resolution of the dispute requires expertise, not in labor management relations nor in wage structures and other terms and conditions of employment, but rather in the application of the general civil law. Clearly, such claims fall outside the area of competence or expertise ordinarily ascribed to Labor Arbiters and the NLRC and the rationale for granting jurisdiction over such claims to these agencies disappears. xxx xxx xxx While paragraph 3 above refers to "all money claims of workers," it is not necessary to suppose that the entire universe of money claims that might be asserted by workers against their employers has been absorbed into the original and exclusive jurisdiction of Labor Arbiters. xxx xxx xxx For it cannot be presumed that money claims of workers which do not arise out of or in connection with their employer-employee relationship, and which would therefore fall within the general jurisdiction of the regular courts of justice, were intended by the legislative authority to be taken away from the jurisdiction of the courts and lodged with Labor Arbiters on an exclusive basis. The Court, therefore, believes and so holds that the 'money claims of workers" referred to in paragraph 3 of Article 217 embraces money claims which arise out of or in connection with the employer- employee relationship, or some aspect or incident of such relationship. Put a little differently, that money claims of workers which now fall within the original and exclusive jurisdiction of Labor Arbiters are those money claims which have some reasonable causal connection with the employer-employee relationship (Ibid.). The case now before the Court involves a complaint for damages for malicious prosecution which was filed with the Regional Trial Court of Leyte by the employees of the defendant company. It does not appear that there is a "reasonable causal connection" between the complaint and the relations of the parties as employer and employees. The complaint did not arise from such relations and in fact could have arisen independently of an employment relationship between the parties. No such relationship or any unfair labor practice is asserted. What the employees are alleging is that the petitioners acted with bad faith when they filed the criminal complaint which the Municipal Trial Court said was intended "to harass the poor employees" and the dismissal of which was affirmed by the Provincial Prosecutor "for lack of evidence to establish even a slightest probability that all the respondents herein have committed the crime imputed against them." This is a matter which the labor arbiter has no competence to resolve as the applicable law is not the Labor Code but the Revised Penal Code. "Talents differ, all is well and wisely put," so observed the philosopher-poet. 8 So it must be in the case we here decide. WHEREFORE, the order dated July 6, 1989, is AFFIRMED and the petition DENIED, with costs against the petitioner. SO ORDERED. Narvasa (Chairman), Griño-Aquino and Medialdea, JJ., concur. G.R. No. 127639 December 3, 1999 SAN MIGUEL CORPORATION and BERNARDO NOEL in his capacity as Industrial Relations Manager,petitioners, vs. ALFREDO ETCUBAN, BERNABE ETCUBAN, NORBERTO LABUCA, FELIPE ECHAVEZ, BERNARDINO ENJAMBRE, ROGELIO ABELLANOSA, ROMULO CATALAN, PEDRO EBOT, ANATOLIO GERALDIZO, JOSE ALFANTA, EDUARDO LOFRANCO, LECERIO PARBA, RAFAEL AGUILAR, RICARDO LACUAREN, BENJAMIN ALESNA, ANTONIO BACUS, PRIMO SOTEROL, JESUS JADORMEO, MANUEL MANKIKIS, APRONIANO ANG, RENATO VILLALON, SAMUEL OUANO, JOSE DELA, JESUS BASILGO, CATALINO COLE, SR., ALFREDO GONZALES, RAMON FLORES, MARCOS VITO CRUZ, JACINTO DIVINAGRACIA, ALAN ALINSUGAY and CLAUDIO AGAN, respondents. KAPUNAN, J.:

Before the Court is a petition for review on certiorari of the Decision, dated 16 May 1996 of the Court of Appeals in CA-G.R. CV No. 46554 and of its Resolution, dated November 1996 denying petitioners' motion for reconsideration of said decision. The Court of Appeals' decision reversed and set aside the resolution of the Regional Trial Court of Cebu, Branch 19, in Civil Case No. CEB-15310, dismissing for lack of jurisdiction respondents' complaint for damages against petitioners for terminating their employment by fraudulently inducing them to accept petitioners' "retrenchment program." The antecedents of this case are as follows: In 1981, San Miguel Corporation (SMC) informed its Mandaue City Brewery employees that it was suffering from heavy losses and financial distress which could eventually lead to its total closure. In several meetings convened by SMC with its employee, it was explained to them that the distressed state of SMC was caused by its poor sales performance which, in order to survive, called for a cutback in production and a corresponding reduction in the work force. Because of this, SMC offered its "Retrenchment to Prevent Loss Program" to its employees. The offering of the retrenchment program was coupled with an unsolicited advise from SMC that it would be in the best interest of the affected employees to avail of the said program since, by doing so, they would be able to obtain their retrenchment benefits and privileges with ease. SMC admonished its employees that their failure to avail of the retrenchment program might lead to difficulty in following-up and obtaining their separation pay from the SMC's main office in Manila. Convinced by the representations and importunings of SMC, respondents, who had been employees of SMC since the 1960s, availed of the retrenchment program at various times in 1981, 1982 and 1983. After their inclusion in the retrenchment program, respondents were given their termination letters and separation pay. In return, respondents executed "receipt and release" documents in favor of SMC. Sometime in May of 1986, respondents got hold of an SMC publication allegedly revealing that SMC was never in financial distress during the time when they were being retrenched but was, in fact, enjoying a growth in sales. Respondents also learned that, during their retrenchment, SMC was engaged in hiring new employees. Thus, respondents concluded that SMC's financial distress story and retrenchment program were merely schemes to rid itself of regular employees and, thus, avoid the payment of their actual benefits. On 17 October 1988, respondents filed a complaint before the Regional Arbitration Branch No. VII of the National Labor Relations Commission (NLRC) for the declaration of nullity of the retrenchment program. In their complaint, respondents alleged that they were former regular employees of SMC who were deceived into severing their employment due to SMC's concocted financial distress story and fraudulent retrenchment program. Respondents prayed for reinstatement, backwages and damages. On 25 July 1989, the Labor Arbiter dismissed the complaint on the ground of prescription, stating: What is apparent from their allegations, however, is that complainants are contesting their respective terminations pursuant to the Retrenchment Program effected by San Miguel Corporation in 1981, 1982, and 1983. These then are claims for illegal dismissal which fall within the ambit of Article 291 of the New Labor Code. It provides: Art. 291. Money claims. — All money claims arising from employer-employee relations accruing during the effectivity of this Code, shall be filed within three (3) years from the time the cause of action accrued; otherwise they shall be forever barred. . . . Under the aforequoted provision therefore, complainants' causes of action have already prescribed. Even if this Office were to apply the more liberal interpretation of the above provisions enunciated by the Honorable Supreme Court in the case of Callanta vs. Carnation Phils., Inc., G.R. No. 70615, Nov. 3, 1986, an interpretation that views illegal dismissal as an injury upon the rights of a person, hence, under Article 1146 of the Civil Code prescribes in 4 years, those who were retrenched in 1983, at the very latest, had only until 1987 to institute a complaint against SMC. The records will show that all the above captioned cases were filed in 1988. Clearly, therefore, complainants' causes of action have already prescribed. 1

Respondents then appealed to the NLRC which, on 20 December 1990, dismissed the appeal and affirmed the decision of the labor arbiter. On 14 December 1993, respondents, who were thirty-one (31) in number, again filed a complaint 2 against SMC, but this time before the Regional Trial Court of Cebu City, Branch 19. Although their complaint was captioned as an action for damages, respondents sought the declaration of nullity of their so-called collective "contract of termination" with SMC. Respondents theorized that SMC's offer of retrenchment and their acceptance of the same resulted in the consummation of a collective "contract of termination" between themselves and SMC. Respondents asserted that since the cause of their "contract of termination" was non-existent, i.e., the claim of SMC that it was under financial distress, the said contract is null and void. In this regard, respondents claimed that they were entitled to damages because of the deception employed upon them by SMC which led to their separation from the company. They further asseverated that their separation from employment resulted in the loss of earnings and other benefits. Hence, they prayed that petitioners jointly and severally be ordered, among others, to pay each of them the sum of P650,000.00 as actual and compensatory damages, P100,000.00 as moral damages, P50,000.00 as exemplary damages, and 25% of whatever may be awarded to them as attorney's fees. Instead of filing an answer, SMC filed a motion to dismiss on the bases of lack of jurisdiction, res judicata, payment, prescription and failure to state a cause of action. On 21 June 1994, the RTC issued a resolution granting SMC's motion to dismiss on the grounds of lack of jurisdiction and prescription. The pertinent portion of the resolution reads: Although plaintiffs, among others, pray for the declaration of nullity of the contract of termination, their main cause is for damages, actual, compensatory and moral damages in the "aggregate amount of P650,000.00 each and P1,200,000.00 each" for plaintiffs Bernabe Etcuban and Jose Dela. The alleged acts leading to their signing of the contract of termination are acts constituting labor disputes. It is a case for damages resulting from illegal termination. Under Article 217 of the Labor Code, such cases fall within the exclusive original jurisdiction of the Labor Arbiter and the National Labor Relations Commission. In fact, in 1988, plaintiffs instituted the same case for "implementation of Art. 217, par. 5, now (sic) Labor Code and Declaration of Nullity of "Retrenchment" Program, and Damages" (see annex "A" to Motion to Dismiss) with the National Labor Relations Commission. Their cases were dismissed, not because of lack of jurisdiction, but because their cause of action already prescribed, the cases having been filed after the three-year prescriptive period. Plaintiffs have already submitted to the jurisdiction of the NLRC when they filed their cases with that agency. And they prayed for the declaration of nullity of the retrenchment program of defendant corporation. It was only after the dismissal of those cases that they instituted this present suit. xxx xxx xxx Moreover, the contract of termination which plaintiffs were allegedly induced to sign is not void from the beginning. At most, such contract is voidable, plaintiffs' consent thereto being allegedly vitiated by fraud and deceit. Thus plaintiffs allege that "the brainwashing conducting (ted) on the affected employees through briefings and pulong-pulongs relative to the actual economic condition of defendant corporation finally led plaintiffs to believe that indeed said defendant was incurring losses and has opted to reduce its production to arrest an immediate collapse of its operations. Thus, the corresponding need to cut down on its work force;" (par. 11, complaint);" This distressed state of affairs of the defendant corporation inculcated into their (sic) minds of defendants and the worry of non-recovery of their benefits in the event defendant corporation closes down, induced plaintiffs to accept the "offer of retrenchment". Thereupon, they were paid their so-called "separation pay". Hence, the contract of termination evidenced by individual termination letters and benefits paid to each plaintiff was consummated." (par. 12). But that "records, however, revealed that from 1973 up to 1983, inclusive, defendant corporation never suffered any business reverses or losses in its operation."; (par. 13, complaint).

When the consent of one of the contracting parties is vitiated by fraud or deceit, the resulting contract is only voidable or annulable, not void or inexistent. The action to annul the same should be filed within four (4) years from discovery of the fraud or deceit. According to plaintiffs' complaint, they "acquired knowledge of the actual business condition of defendant corporation only in May 1986 when one of them got hold of a copy of the company's publication. That was the time they discovered that indeed, defendants deceived them . . . . (par. 14, complaint.) From May 1986 to January 14, 1993, more than six (6) years have already elapsed. Clearly, the action, has already prescribed. The rest of the grounds need not be discussed. WHEREFORE, for want of jurisdiction, and on the further ground of prescription, the above-entitled case is dismissed. SO ORDERED. 3 Respondents seasonably appealed to the Court of Appeals (CA). In its Decision dated 16 May 1996, the CA reversed and set aside the lower court's order of dismissal and remanded the case to the RTC for further proceedings. The pertinent portion of the decision reads: A scrutiny of the allegations of the present complaint reveals that plaintiffs' cause of action is not actually based on an employer-employee relationship between the plaintiffs and the defendants. It primarily involves a civil dispute arising from the claim of plaintiffs that the cause for the contract of termination of their services is inexistent rendering said contract as null and void from the beginning. . . . xxx xxx xxx Guided thereby, we find that recourse by plaintiffs-appellants to the civil law on contracts by raising the issue [of] whether or not the contract of termination of services entered into by plaintiffs with defendants is void from the beginning due to inexistent cause of action under Article 1409 of the Civil Code, places the case within the jurisdiction of the civil courts. As refined by the Supreme Court, where the resolution of the dispute requires expertise, not in labor management relations nor in wage structures and other terms and conditions of employment, but rather in the application of the general civil law, such claim falls outside the area of competence of expertise ordinarily ascribed to Labor Arbiters and the NLRC. Thus, the trial court erred in finding that it has no jurisdiction over the case. Secondly, the trial court erred in ruling that the complaint of plaintiffs-appellants has prescribed. Article 1410 of the Civil Code, in relation to Article 1409 as herein before quoted, specifically provides that the action for the declaration of the inexistence of a contract on ground (3) above does not prescribe. Thirdly, one of the requisites for the application of the principle of res judicata is that there must be a judgment on the merits in the earlier case involving the same parties and the same issues. Plaintiffs-appellants' complaint was dismissed by the NLRC on the ground that their cause of action had prescribed; no trial has been held on the first complaint. Thus, the dismissal of the first complaint is not a judgment on the merits and therefore not applicable to the present case. xxx xxx xxx WHEREFORE, the order of dismissal is reversed and set aside. Let the original records of Civil Case No. CEB-15310, be remanded to the Regional Trial Court (Branch 19), Cebu City for further proceedings. Costs against defendants-appellees. SO ORDERED. 4 SMC filed a motion for reconsideration but was denied in the CA's Resolution dated 14 November 1996 5. Hence, this petition. In its petition, SMC contends that the CA erred: I IN HOLDING THAT THE REGIONAL TRIAL COURT OF CEBU, BRANCH 19, HAS JURISDICTION OVER THE INSTANT CASE AND THE CAUSE OF ACTION OF THE RESPONDENTS ARE NOT ACTUALLY BASED ON AN EMPLOYER-EMPLOYEE RELATIONSHIP WHEN THE COMPLAINT SHOWS THAT THE RESPONDENTS ARE CLAIMING TO HAVE BEEN UNJUSTLY SEPARATED FROM THEIR REGULAR EMPLOYMENTS (sic) BY THE PETITIONERS AND ARE DEMANDING TO BE PAID ACTUAL AND

COMPENSATORY DAMAGES CONSISTING OF "THEIR EXPECTED INCOME BY WAY OF SALARIES AND OTHER FRINGE BENEFITS DUE THEM UNDER THE LAW FROM THE TIME OF THEIR SEPARATION AND UNTIL THEIR RETIREMENT DUE TO AGE OR LENGTH OF SERVICE . . . SOCIAL SECURITY SYSTEM BENEFITS . . . RETIREMENT BENEFITS. II IN RULING THAT THE COMPLAINT OF THE RESPONDENTS HAVE NOT YET PRESCRIBED WHEN THE RESPONDENTS HAVE CLAIMED IN THEIR COMPLAINT THAT THEY HAVE BEEN ALLEGEDLY BRAINWASHED BY THE PETITIONERS AND THEIR COMPAINT (sic) WAS FILED ONLY AFTER MORE THAN SIX (6) YEARS HAVE LAPSED FROM THE TIME THAT THE RESPONDENTS CLAIMED TO HAVE "DISCOVERED THAT INDEED, DEFENDANTS (Petitioners) DECEIVED THEM INTO BELIEVING THAT THE DEFENDANT CORPORATION WAS INCURRING LOSSES IN ITS OPERATION HENCE, THE NECESSITY TO TRIM DOWN ITS WORK FORCE TO INDUCE THEM TO ACCEPT THE "OFFER OF RETRENCHEMENT (sic)." III IN RULING THAT "THE DISMISSAL OF THE FIRST COMPLAINT IS NOT A JUDGMENT ON THE MERITS AND THEREFORE NOT APPLICABLE TO THE PRESENT CASE" WHEN IT IS THE SAID DIVISION'S OWN FINDING THAT: "THE COMPLAINT FILED BY HEREIN PLAINTIFFS-APPELLANTS (Respondents) WITH THE REGIONAL ARBITRATION BRANCH PRAYED FOR THE DECLARATION OF THE TERMINATION SCHEME ALLEGEDLY DECEPTIVELY FORCED UPON THEM TO BE NULL AND VOID WITH THE SAME PRAYER THAT THEY BE REINSTATED TO THEIR REGULAR EMPLOYMENT WITHOUT ANY LOSS OF ANY RIGHTS (sic) AND BENEFITS (sic) AS WELL AS PAYMENT OF THEIR BACK WAGES AND DAMAGES." 6 We find the petition impressed with merit. The demarcation line between the jurisdiction of regular courts and labor courts over cases involving workers and their employers has always been the subject of dispute. We have recognized that not all claims involving such groups of litigants can be resolved solely by our labor courts. 7 However, we have also admonished that the present trend is to refer worker-employer controversies to labor courts, unless unmistakably provided by the law to be otherwise. 8Because of this trend, jurisprudence has developed the "reasonable causal connection rule." Under this rule, if there is a reasonable causal connection between the claim asserted and the employer-employee relations, then the case is within the jurisdiction of our labor courts. 9 In the absence of such nexus, it is the regular courts that have jurisdiction. 10 The jurisdiction of labor courts is provided under Article 217 of the Labor Code, to wit: Art. 217. Jurisdiction of Labor Arbiters and the Commission. — (a) Except as otherwise provided under this Code the Labor Arbiter shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural: 1. Unfair labor practice cases; 2. Termination disputes; 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; 4. Claims for actual, moral, exemplary and other forms of damages arising from employer-employee relations; 5. Cases arising from any violation of Article 264 of this Code including questions involving the legality of strikes and lockouts; and 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims, arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement. (b) The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters. (c) Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be

disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements. 11 With regard to claims for damages under paragraph 4 of the above article, this Court has observed that: Jurisprudence has evolved the rule that claims for damages under paragraph 4 of Article 217, to be cognizable by the Labor Arbiter, must have a reasonable causal connection with any of the claims provided for in that article. Only if there is such a connection with the other claims can the claim for damages be considered as arising from employer-employee relations. 12 In the present case, while respondents insist that their action is for the declaration of nullity of their "contract of termination," what is inescapable is the fact that it is, in reality, an action for damages emanating from employer-employee relations. First, their claim for damages is grounded on their having been deceived into severing their employment due to SMC's concocted financial distress and fraudulent retrenchment program — a clear case of illegal dismissal. Second, a comparison of respondents' complaint for the declaration of nullity of the retrenchment program before the labor arbiter and the complaint for the declaration of nullity of their "contract of termination" before the RTC reveals that the allegations and prayer of the former are almost identical with those of the latter except that the prayer for reinstatement was no longer included and the claim for backwages and other benefits was replaced with a claim for actual damages. These are telltale signs that respondents' claim for damages is intertwined with their having been separated from their employment without just cause and, consequently, has a reasonable causal connection with their employer-employee relations with SMC. Accordingly, it cannot be denied that respondents' claim falls under the jurisdiction of the labor arbiter as provided in paragraph 4 of Article 217. Respondents' assertion that their action is for the declaration of nullity of their "contract of termination" is merely an ingenious way of presenting their actual action, which is a claim for damages grounded on their having been illegal terminated. However, it would seem that respondents committed a Freudian slip when they captioned their claim against SMC as an action for damages. 13 Even the term used for designating the contract, i.e. "contract of termination," was formulated in a shrewd manner so as to avoid a semblance of employer-employee relations. This observation is bolstered by the fact that if respondents' designation for the contract were to be made complete and reflective of its nature, its proper designation would be a "contract of termination of employment." The Court is aware that the Civil Code provisions on contracts and damages may be used as bases for addressing the claim of respondents. However, the fact remains that the present action primarily involves an employer-employee relationship. The damages incurred by respondents as a result of the alleged fraudulent retrenchment program and the allegedly defective "contract of termination" are merely the civil aspect of the injury brought about by their illegal dismissal. 14 The civil ramifications of their actual claim cannot alter the reality that it is primordially a labor matter and, as such, is cognizable by labor courts. In Associated Citizens Bank vs. Japson, 15 we held: For the unlawful termination of employment, this Court in Primero v. Intermediate Appellate Court,supra, ruled that the Labor Arbiter had the exclusive and original jurisdiction over claims for moral and other forms of damages, so that the employee in the proceedings before the Labor Arbiter should prosecute his claims not only for reliefs specified under the Labor Code but also for damages under the Civil Code. This is because an illegally dismissed employee has only a single cause of action although the act of dismissal may be a violation not only the Labor Code but also of the Civil Code. For a single cause of action, the dismissed employee cannot institute a separate action before the Labor Arbiter for backwages and reinstatement and another action before the regular court for the recovery of moral and other forms of damages because splitting a single cause of action is procedurally unsound and obnoxious to the orderly administration of justice. (Primero v. Intermediate Appellate Court, supra, citing Gonzales v. Province of Iloilo, 38 SCRA 209; Cyphil Employees Association-Natu v. Pharmaceutical Industries, 77 SCRA 135; Calderon v. Court of Appeals, 100 SCRA 459, etc.) 16

Even assuming arguendo that the RTC has jurisdiction, it is obvious from respondents' own pleadings that their action for the declaration of nullity of the "contract of termination" will not prosper. Respondents allege that they were deceived by SMC into believing that it was under financial distress which, thus, led them into concluding the "contract of termination" with the latter. 17 Respondents then posit that since the cause of the contract, SMC's alleged financial distress, was inexistent, the contract is null and void. The argument is flawed. The fact that SMC was never in financial distress does not, in any way, affect the cause of their "contract of termination." Rather, the fraudulent representations of SMC only affected the consent of respondents in entering into the said contract. 18 If the consent of a contracting party is vitiated by fraud, the contract is not void but, merely, voidable. 19 In Abando vs. Lozada, 20 we ruled: As correctly pointed out by the appellate court, the strategem (sic), the deceit, the misrepresentations employed by Cuevas and Pucan are facts constitutive of fraud which is defined in Article 1338 of the Civil Code as that (sic) insidious words or machinations of one of the contracting parties, by which the other is induced to enter into a contract which, without them, he would not have agreed to. When fraud is employed to obtain the consent of the other party to enter into a contract, the resulting contract is merely a voidable contract, that is, a valid and subsisting contract until annulled or set aside by a competent court. . . . 21 An action to annul a voidable contract based on fraud should be brought within four (4) years from the discovery of the same. 22 In the present case, respondents discovered SMC's fraud in May 1986. However, the action to question the validity of the contract was only brought on 14 December 1993, or more than seven (7) years after the discovery of the fraud. Clearly, respondents' action has already prescribed. The issue of jurisdiction and prescription having been resolved, it is no longer necessary to discuss the issue onres judicata raised in this petition. WHEREFORE, premises considered, the Decision of the Court of Appeals dated 16 May 1996 and its Resolution dated 14 November 1996 are hereby REVERSED and SET ASIDE and the Resolution dated 21 June 1994 of the Regional Trial Court of Cebu, Branch 19, in CEB-15310, REINSTATED. SO ORDERED. G.R. No. 128024 May 9, 2000 BEBIANO M. BAÑEZ, petitioner, vs. HON. DOWNEY C. VALDEVILLA and ORO MARKETING, INC., respondents. GONZAGA-REYES, J.: The orders of respondent judge 1 dated June 20, 1996 and October 16, 1996, taking jurisdiction over an action for damages filed by an employer against its dismissed employee, are assailed in this petition for certiorari under Rule 65 of the Rules of Court for having been issued in grave abuse of discretion. Petitioner was the sales operations manager of private respondent in its branch in Iligan City. In 1993, private respondent "indefinitely suspended" petitioner and the latter filed a complaint for illegal dismissal with the National Labor Relations Commission ("NLRC") in Iligan City. In a decision dated July 7, 1994, Labor Arbiter Nicodemus G. Palangan found petitioner to have been illegally dismissed and ordered the payment of separation pay in lieu of reinstatement, and of backwages and attorney's fees. The decision was appealed to the NLRC, which dismissed the same for having been filed out of time. 2 Elevated by petition for certiorari before this Court, the case was dismissed on technical grounds3; however, the Court also pointed out that even if all the procedural requirements for the filing of the petition were met, it would still be dismissed for failure to show grave abuse of discretion on the part of the NLRC. On November 13, 1995, private respondent filed a complaint for damages before the Regional Trial Court ("RTC") of Misamis Oriental, docketed as Civil Case No. 95-554, which prayed for the payment of the following: a. P709,217.97 plus 12% interest as loss of profit and/or unearned income of three years;

b. P119,700.00 plus 12% interest as estimated cost of supplies, facilities, properties, space, etc. for three years; c. P5,000.00 as initial expenses of litigation; and d. P25,000.00 as attorney's fees. 4 On January 30, 1996, petitioner filed a motion to dismiss the above complaint. He interposed in the court below that the action for damages, having arisen from an employer-employee relationship, was squarely under the exclusive original jurisdiction of the NLRC under Article 217(a), paragraph 4 of the Labor Code and is barred by reason of the final judgment in the labor case. He accused private respondent of splitting causes of action, stating that the latter could very well have included the instant claim for damages in its counterclaim before the Labor Arbiter. He also pointed out that the civil action of private respondent is an act of forum-shopping and was merely resorted to after a failure to obtain a favorable decision with the NLRC. Ruling upon the motion to dismiss, respondent judge issued the herein questioned Order, which summarized the basis for private respondent's action for damages in this manner: Paragraph 5 of the complaint alleged that the defendant violated the plaintiff's policy re: His business in his branch at Iligan City wherein defendant was the Sales Operations Manager, and paragraph 7 of the same complaint briefly narrated the modus operandi of defendant, quoted herein: Defendant canvassed customers personally or through salesmen of plaintiff which were hired or recruited by him. If said customer decided to buy items from plaintiff on installment basis, defendant, without the knowledge of said customer and plaintiff, would buy the items on cash basis at ex-factory price, a privilege not given to customers, and thereafter required the customer to sign promissory notes and other documents using the name and property of plaintiff, purporting that said customer purchased the items from plaintiff on installment basis. Thereafter, defendant collected the installment payments either personally or through Venus Lozano, a Group Sales Manager of plaintiff but also utilized by him as secretary in his own business for collecting and receiving of installments, purportedly for the plaintiff but in reality on his own account or business. The collection and receipt of payments were made inside the Iligan City branch using plaintiff's facilities, property and manpower. That accordingly plaintiff's sales decreased and reduced to a considerable extent the profits which it would have earned. 5 In declaring itself as having jurisdiction over the subject matter of the instant controversy, respondent court stated: A perusal of the complaint which is for damages does not ask for any relief under the Labor Code of the Philippines. It seeks to recover damages as redress for defendant's breach of his contractual obligation to plaintiff who was damaged and prejudiced. The Court believes such cause of action is within the realm of civil law, and jurisdiction over the controversy belongs to the regular courts. While seemingly the cause of action arose from employer-employee relations, the employer's claim for damages is grounded on the nefarious activities of defendant causing damage and prejudice to plaintiff as alleged in paragraph 7 of the complaint. The Court believes that there was a breach of a contractual obligation, which is intrinsically a civil dispute. The averments in the complaint removed the controversy from the coverage of the Labor Code of the Philippines and brought it within the purview of civil law. (Singapore Airlines, Ltd. Vs. Paño, 122 SCRA 671.) . . . 6 Petitioner's motion for reconsideration of the above Order was denied for lack of merit on October 16, 1996. Hence, this petition. Acting on petitioner's prayer, the Second Division of this Court issued a Temporary Restraining Order ("TRO") on March 5, 1997, enjoining respondents from further proceeding with Civil Case No. 95-554 until further orders from the Court. By way of assignment of errors, the petition reiterates the grounds raised in the Motion to Dismiss dated January 30, 1996, namely, lack of jurisdiction over the subject matter of the action, res judicata, splitting of causes of action, and forum-shopping. The determining issue, however, is the issue of jurisdiction. Art. 217(a), paragraph 4 of the Labor Code, which was already in effect at the time of the filing of this case, reads:

Art. 217. Jurisdiction of Labor Arbiters and the Commission. — (a) Except as otherwise provided under this Code the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural: xxx xxx xxx 4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; xxx xxx xxx The above provisions are a result of the amendment by Section 9 of Republic Act ("R.A.") No. 6715, which took effect on March 21, 1989, and which put to rest the earlier confusion as to who between Labor Arbiters and regular courts had jurisdiction over claims for damages as between employers and employees. It will be recalled that years prior to R.A. 6715, jurisdiction over all money claims of workers, including claims for damages, was originally lodged with the Labor Arbiters and the NLRC by Article 217 of the Labor Code. 7 On May 1, 1979, however, Presidential Decree ("P.D.") No. 1367 amended said Article 217 to the effect that "Regional Directors shall not indorse and Labor Arbiters shall not entertain claims for moral or other forms of damages." 8This limitation in jurisdiction, however, lasted only briefly since on May 1, 1980, P.D. No. 1691 nullified P.D. No. 1367 and restored Article 217 of the Labor Code almost to its original form. Presently, and as amended by R.A. 6715, the jurisdiction of Labor Arbiters and the NLRC in Article 217 is comprehensive enough to include claims for all forms of damages "arising from the employer-employee relations" Whereas this Court in a number of occasions had applied the jurisdictional provisions of Article 217 to claims for damages filed by employees, 9 we hold that by the designating clause "arising from the employer-employee relations" Article 217 should apply with equal force to the claim of an employer for actual damages against its dismissed employee, where the basis for the claim arises from or is necessarily connected with the fact of termination, and should be entered as a counterclaim in the illegal dismissal case. Even under Republic Act No. 875 (the "Industrial Peace Act", now completely superseded by the Labor Code), jurisprudence was settled that where the plaintiff's cause of action for damages arose out of, or was necessarily intertwined with, an alleged unfair labor practice committed by the union, the jurisdiction is exclusively with the (now defunct) Court of Industrial Relations, and the assumption of jurisdiction of regular courts over the same is a nullity. 10 To allow otherwise would be "to sanction split jurisdiction, which is prejudicial to the orderly administration of justice." 11 Thus, even after the enactment of the Labor Code, where the damages separately claimed by the employer were allegedly incurred as a consequence of strike or picketing of the union, such complaint for damages is deeply rooted from the labor dispute between the parties, and should be dismissed by ordinary courts for lack of jurisdiction. As held by this Court in National Federation of Labor vs. Eisma, 127 SCRA 419: Certainly, the present Labor Code is even more committed to the view that on policy grounds, and equally so in the interest of greater promptness in the disposition of labor matters, a court is spared the often onerous task of determining what essentially is a factual matter, namely, the damages that may be incurred by either labor or management as a result of disputes or controversies arising from employer-employee relations. There is no mistaking the fact that in the case before us, private respondent's claim against petitioner for actual damages arose from a prior employer-employee relationship. In the first place, private respondent would not have taken issue with petitioner's "doing business of his own" had the latter not been concurrently its employee. Thus, the damages alleged in the complaint below are: first, those amounting to lost profits and earnings due to petitioner's abandonment or neglect of his duties as sales manager, having been otherwise preoccupied by his unauthorized installment sale scheme; and second, those equivalent to the value of private respondent's property and supplies which petitioner used in conducting his "business ".

Second, and more importantly, to allow respondent court to proceed with the instant action for damages would be to open anew the factual issue of whether petitioner's installment sale scheme resulted in business losses and the dissipation of private respondent's property. This issue has been duly raised and ruled upon in the illegal dismissal case, where private respondent brought up as a defense the same allegations now embodied in his complaint, and presented evidence in support thereof. The Labor Arbiter, however, found to the contrary — that no business losses may be attributed to petitioner as in fact, it was by reason of petitioner's installment plan that the sales of the Iligan branch of private respondent (where petitioner was employed) reached its highest record level to the extent that petitioner was awarded the 1989 Field Sales Achievement Award in recognition of his exceptional sales performance, and that the installment scheme was in fact with the knowledge of the management of the Iligan branch of private respondent. 12 In other words, the issue of actual damages has been settled in the labor case, which is now final and executory. Still on the prospect of re-opening factual issues already resolved by the labor court, it may help to refer to that period from 1979 to 1980 when jurisdiction over employment-predicated actions for damages vacillated from labor tribunals to regular courts, and back to labor tribunals. In Ebon vs. de Guzman, 113 SCRA 52, 1 this Court discussed: The lawmakers in divesting the Labor Arbiters and the NLRC of jurisdiction to award moral and other forms of damages in labor cases could have assumed that the Labor Arbiters' position-paper procedure of ascertaining the facts in dispute might not be an adequate tool for arriving at a just and accurate assessment of damages, as distinguished from backwages and separation pay, and that the trial procedure in the Court of First Instance would be a more effective means of determining such damages. . . . Evidently, the lawmaking authority had second thoughts about depriving the Labor Arbiters and the NLRC of the jurisdiction to award damages in labor cases because that setup would mean duplicity of suits, splitting the cause of action and possible conflicting findings and conclusions by two tribunals on one and the same claim. So, on May 1, 1980, Presidential Decree No. 1691 (which substantially reenacted Article 217 in its original form) nullified Presidential Decree No. 1367 and restored to the Labor Arbiter and the NLRC their jurisdiction to award all kinds of damages in cases arising from employer-employee relations. . . . (Emphasis supplied). Clearly, respondent court's taking jurisdiction over the instant case would bring about precisely the harm that the lawmakers sought to avoid in amending the Labor Code to restore jurisdiction over claims for damages of this nature to the NLRC. This is, of course, to distinguish from cases of actions for damages where the employer-employee relationship is merely incidental and the cause of action proceeds from a different source of obligation. Thus, the jurisdiction of regular courts was upheld where the damages, claimed for were based on tort 14, malicious prosecution 15, or breach of contract, as when the claimant seeks to recover a debt from a former employee 16 or seeks liquidated damages in enforcement of a prior employment contract. 17 Neither can we uphold the reasoning of respondent court that because the resolution of the issues presented by the complaint does not entail application of the Labor Code or other labor laws, the dispute is intrinsically civil. Article 217(a) of the Labor Code, as amended, clearly bestows upon the Labor Arbiter original and exclusive jurisdiction over claims for damages arising from employer-employee relations — in other words, the Labor Arbiter has jurisdiction to award not only the reliefs provided by labor laws, but also damages governed by the Civil Code. 18 Thus, it is obvious that private respondent's remedy is not in the filing of this separate action for damages, but in properly perfecting an appeal from the Labor Arbiter's decision. Having lost the right to appeal on grounds of untimeliness, the decision in the labor case stands as a final judgment on the merits, and the instant action for damages cannot take the place of such lost appeal. Respondent court clearly having no jurisdiction over private respondent's complaint for damages, we will no longer pass upon petitioner's other assignments of error.

WHEREFORE, the Petition is GRANTED, and the complaint in Civil Case No. 95-554 before Branch 39 of the Regional Trial Court of Misamis Oriental is hereby DISMISSED. No pronouncement as to costs. SO ORDERED. G.R. No. 152121 July 29, 2003 EDUARDO G. EVIOTA, Petitioner, vs. THE HON. COURT OF APPEALS, THE HON. JOSE BAUTISTA, Presiding Judge of Branch 136, Regional Trial Court of Makati, and STANDARD CHARTERED BANK, Respondents. D E C I S I O N CALLEJO, SR., J.: Before us is a petition for review on certiorari under Rule 45 of the Revised Rules of Court, of the Decision1 of the Court of Appeals in CA-G.R. SP No. 60141 denying the petition for certiorari filed by the petitioner praying the nullification of the Order of the Regional Trial Court of Makati, Branch 136.2 Sometime on January 26, 1998, the respondent Standard Chartered Bank and petitioner Eduardo G. Eviota executed a contract of employment under which the petitioner was employed by the respondent bank as Compensation and Benefits Manager, VP (M21). However, the petitioner abruptly resigned from the respondent bank barely a month after his employment and rejoined his former employer. On June 19, 1998, the respondent bank filed a complaint against the petitioner with the RTC of Makati City. The respondent bank alleged inter alia in its complaint that: 1. It is a foreign banking institution authorized to do business in the Philippines, with principal offices at the 5th Floor, Bankmer Bldg., 6756 Ayala Avenue, Makati City. 2. Defendant Eduardo Eviota ("Eviota") is a former employee of the Bank, and may be served with summons and other court processes at 8 Maple Street, Cottonwoods, Antipolo, Metro Manila. 3. On December 22, 1997, Eviota began negotiating with the Bank on his possible employment with the latter. Taken up during these negotiations were not only his compensation and benefit package, but also the nature and demands of his prospective position. The Bank made sure that Eviota was fully aware of all the terms and conditions of his possible job with the Bank. 4. On January 26, 1998, Eviota indicated his conformity with the Bank’s Offer of Employment by signing a written copy of such offer dated January 22, 1998 (the "Employment Contract"). A copy of the Employment Contract between Eviota and the Bank is hereto attached as Annex "A." 5. Acting on the Employment Contract and on Eviota’s uninhibited display of interest in assuming his position, the Bank promptly proceeded to carry out the terms of the Employment Contract as well as to facilitate his integration into the workforce. Among others, the Bank: (a) renovated and refurbished the room which was to serve as Eviota’s office; (b) purchased a 1998 Honda CR-V (Motor No. PEWED7P101101; Chassis No. PADRD 1830WV00108) for Eviota’s use; (c) purchased a desktop IBM computer for Eviota’s use; (d) arranged the takeout of Eviota’s loans with Eviota’s former employer; (e) released Eviota’s signing bonus in the net amount of P300,000.00; (f) booked Eviota’s participation in a Singapore conference on Y2K project scheduled on March 10 and 11, 1998; and (g) introduced Eviota to the local and regional staff and officers of the Bank via personal introductions and electronic mail. 6. The various expenses incurred by the Bank in carrying out the above acts are itemized below, as follows: a. Signing Bonus P 300,000.00 b. 1 Honda CR-V 800,000.00 c. IBM Desktop Computer 89,995.00 d. Office Reconfiguration 29,815.00 e. 2-Drawer Lateral File Cabinet 13,200.00 f. 1 Officer’s Chair 31,539.00 g. 1 Guest Chair 2,200.00

h. 1 Hanging Shelf 2,012.00 i. Staff Loan Processing Title Verification 375.00 Cost of Appraisal – Housing Loan 3,500.00 TOTAL P1,272,636.00 An itemized schedule of the above expenses incurred by the Bank is hereto attached as Annex "B." 7. On February 25, 1998, Eviota assumed his position as Compensation and Benefits Manager with the Bank and began to discharge his duties. At one Human Resources ("HR") Committee meeting held on March 3, 1998, Eviota energetically presented to senior management his projects for the year, thus raising the latter’s expectations. The same day, Eviota instructed the Bank’s HR Administrator to book him a flight for Singapore, where he was scheduled to participate in a Y2K project on March 10 and 11, 1998. Confident of Eviota’s professed commitment to the Bank, the latter made the aforementioned airline booking for him. In addition, the Bank allowed Eviota access to certain sensitive and confidential information and documents concerning the Bank’s operations. 8. After leading the Bank to believe that he had come to stay, Eviota suddenly resigned his employment with immediate effect to re-join his previous employer. His resignation, which did not comply with the 30-day prior notice rule under the law and under the Employment Contract, was so unexpected that it disrupted plans already in the pipeline (e.g., the development of a salary/matrix grid and salary structure, and the processing of merit promotion recommendations), aborted meetings previously scheduled among Bank officers, and forced the Bank to hire the services of a third party to perform the job he was hired to do. For the services of this third party, the Bank had to pay a total of P208,807.50. A copy of a receipt for the above expenses is hereto attached as Annex "C" (See also, Annex "B"). 9. Aside from causing no small degree of chaos within the Bank by reason of his sudden resignation, Eviota made off with a computer diskette and other papers and documents containing confidential information on employee compensation and other Bank matters, such as the salary schedule of all Corporate and Institutional Banking officers and photocopies of schedules of benefits provided expatriates being employed by the Bank. 10. With the benefit of hindsight, the Bank realizes that it was simply used by Eviota as a mere leverage for his selfish efforts at negotiating better terms of employment with his previous employer. Worse, there is evidence to show that in his attempts to justify his hasty departure from the Bank and conceal the real reason for his move, Eviota has resorted to falsehoods derogatory to the reputation of the Bank. In particular, he has been maliciously purveying the canard that he had hurriedly left the Bank because it had failed to provide him support. His untruthful remarks have falsely depicted the Bank as a contract violator and an undesirable employer, thus damaging the Bank’s reputation and business standing in the highly competitive banking community, and undermining its ability to recruit and retain the best personnel in the labor market. 11. On March 16, 1998, the Bank made a written demand on Eviota to return the aforementioned computer diskette and other confidential documents and papers, reimburse the Bank for the various expenses incurred on his account as a result of his resignation (with legal interest), and pay damages in the amount of at least P500,000.00 for the inconvenience and work/program disruptions suffered by the Bank. A copy of the Bank’s demand letter dated March 16, 1998 is hereto attached as Annex "D." 12. In partial compliance with said demand, Eviota made arrangements with his previous employer to reimburse the Bank for the expenses incurred in connection with the Bank’s purchase of the Honda CR-V for his use. The Bank informed Eviota that in addition to the Honda CR-V’s purchase price of P848,000.00 (of which Eviota initially shouldered P48,000.00), incidental costs in the form of Processing Fees (P1,000.00), FPD/MCAR/98-155684 (P1,232.53) and Fund Transfer Price (P18,646.84) were incurred, bringing the total cost of the Honda CR-V to P868,881.38. On April 29, 1998, the Bank received two manager’s checks in the aggregate amount of P868,881.38, representing costs incurred in connection with the purchase of the Honda CR-V, inclusive of

processing fees and other incidental costs. Previously, Eviota had returned his P300,000.00 signing bonus, less the P48,000.00 he had advanced for the Honda CR-V’s purchase price. 13. Eviota never complied with the Bank’s demand that he reimburse the latter for the other expenses incurred on his account, amounting to P360,562.12 (see, Annex "B").3 The respondent bank alleged, by way of its causes of action against the petitioner, the following: First Cause of Action 14. Eviota’s actions constitute a clear violation of Articles 19, 20 and 21 of Republic Act No. 386, as amended (the "Civil Code"). Assuming arguendo that Eviota had the right to terminate his employment with the Bank for no reason, the manner in and circumstances under which he exercised the same are clearly abusive and contrary to the rules governing human relations. 14.1. By his actions and representations, Eviota had induced the Bank to believe that he was committed to fulfilling his obligations under the Employment Contract. As a result, the Bank incurred expenses in carrying out its part of the contract (see Annexes "B" and "C"). Less reimbursements received from Eviota, the Bank is entitled to actual damages of P360,562.12. (See, Annex "C"). Second Cause of Action 15. Under Article 285 (a) of Presidential Decree No. 442, as amended (the Labor Code), an employee may terminate without just cause the employer-employee relationship by serving written notice on the employer at least one (1) month in advance. In addition, Section 13 of the Employment Contract specifically provides that: "Your [i.e., Eviota’s] employment may be terminated by either party giving notice of at least one month." (Annex "A," p. 5.) 15.1. Eviota’s failure to comply with the above requirement threw a monkey wrench into the Bank’s operations – Eviota’s sudden resignation aborted meetings previously scheduled among Bank officers and disrupted plans for a salary/merit review program and development of a salary structure and merit grid already in the pipeline. Hence, Eviota is liable to the Bank for damages in the amount of at least P100,000.00. Third Cause of Action 16. Eviota’s false and derogatory statements that the Bank had failed to deliver what it had purportedly promised have besmirched the Bank’s reputation and depicted it as a contract violator and one which does not treat its employees properly. These derogatory statements have injured the Bank’s business standing in the banking community, and have undermined the Bank’s ability to recruit and retain the best personnel. Hence, plaintiff is entitled to moral damages of at least P2,000,000.00. 17. By way of example or correction for the public good, and to deter other parties from committing similar acts in the future, defendant should be held liable for exemplary damages of at least P1,000,000.00 18. Eviota’s actions have compelled plaintiff to obtain the services of undersigned counsel for a fee, in order to protect its interests. Hence, plaintiff is entitled to attorney’s fees of at least P200,000.00.4 The respondent bank prayed, that after due proceedings, judgment be rendered in its favor as follows: WHEREFORE, it is respectfully prayed that judgment be rendered ordering the defendant to pay the plaintiff: 1. As actual damages, the amount of P360,562.12, representing expenses referred to in items c to i of par. 6 and the cost of the third-party services mentioned in par. 8; 2. For violating the 30-day notice requirement under the Labor Code and order (sic) the Employment Contract, damages in the amount of at least P100,000.00; 3. As moral damages, the amount of P2,000,000.00; 4. As exemplary damages, the amount of P1,000,000.00; 5. As attorney’s fees, the amount of P200,000.00; and 6. Costs of the suit. Other just and equitable reliefs are likewise prayed for.5 The respondent bank appended to its complaint a copy of the petitioner’s employment contract.

The petitioner filed a motion to dismiss the complaint on the ground that the action for damages of the respondent bank was within the exclusive jurisdiction of the Labor Arbiter under paragraph 4, Article 217 of the Labor Code of the Philippines, as amended. The petitioner averred that the respondent bank’s claim for damages arose out of or were in connection with his employer-employee relationship with the respondent bank or some aspect or incident of such relationship. The respondent bank opposed the motion, claiming that its action for damages was within the exclusive jurisdiction of the trial court. Although its claims for damages incidentally involved an employer-employee relationship, the said claims are actually predicated on the petitioner’s acts and omissions which are separately, specifically and distinctly governed by the New Civil Code. On November 29, 1999, the trial court issued an order denying the petitioner’s motion to dismiss, ratiocinating that the primary relief prayed for by the respondent bank was grounded on the tortious manner by which the petitioner terminated his employment with the latter, and as such is governed by the New Civil Code: The Court holds that here, since the primary relief prayed for by the plaintiff is for damages, grounded on the tortious manner by which the defendant terminated his employment with the company, the same are recoverable under the applicable provision of the Civil Code, the present controversy is removed from the jurisdiction of the Labor Arbiter and brings in within the purview of the regular courts.6 The petitioner filed a motion for reconsideration of the said order, but the court issued an order denying the same. The petitioner filed a petition for certiorari with the Court of Appeals for the nullification of the orders of the trial court, alleging that the court a quo committed grave abuse of its discretion amounting to excess or lack of jurisdiction in issuing the said orders. The petitioner further asserted that contrary to the ruling of the court, the respondent bank claimed damages in its complaint against the petitioner based on his employment contract, and not on tortious acts. On November 15, 2001, the CA promulgated a decision dismissing the petition, holding that the trial court and not the Labor Arbiter had exclusive jurisdiction over the action of the respondent bank. It held that the latter’s claims for damages were grounded on the petitioner’s sudden and unceremonious severance of his employment with the respondent bank barely a month after assuming office. With his motion for reconsideration of the decision having been denied by the CA, the petitioner filed his petition with this Court contending that: Suffice to state immediately that on the basis of the allegations in the complaint, it is the Labor Arbiter, not the Regional Trial Court, which has jurisdiction of the subject matter of the complaint in Civil Case No. 98-1397, the principal cause of action being the alleged omission of petitioner in giving notice to the respondent Bank employer of termination of their relationship; whereas the claims for other actual/moral/exemplary damages are well within the competence of the Labor Arbiter.7 The petition is barren of merit. Article 217 of the Labor Code of the Philippines, as amended by Rep. Act No. 6715 which took effect on March 21, 1989 reads: ART. 217. Jurisdiction of Labor Arbiters and the Commission.—(a) Except as otherwise provided under this Code the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural: 1. Unfair labor practice cases; 2. Termination disputes; 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; 4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations.

Case law has it that the nature of an action and the subject matter thereof, as well as which court has jurisdiction over the same, are determined by the material allegations of the complaint and the reliefs prayed for in relation to the law involved. Not every controversy or money claim by an employee against the employer or vice-versa is within the exclusive jurisdiction of the labor arbiter. A money claim by a worker against the employer or vice-versa is within the exclusive jurisdiction of the labor arbiter only if there is a "reasonable causal connection" between the claim asserted and employee-employer relation. Absent such a link, the complaint will be cognizable by the regular courts of justice.8 Actions between employees and employer where the employer-employee relationship is merely incidental and the cause of action precedes from a different source of obligation is within the exclusive jurisdiction of the regular court.9 In Georg Grotjahn GMBH & Co. v. Isnani,10 we held that the jurisdiction of the Labor Arbiter under Article 217 of the Labor Code, as amended, is limited to disputes arising from an employer-employee relationship which can only be resolved by reference to the Labor Code of the Philippines, other labor laws or their collective bargaining agreements. In Singapore Airlines Limited v. Paño,11 the complaint of the employer against the employee for damages for wanton justice and refusal without just cause to report for duty, and for having maliciously and with bad faith violated the terms and conditions of their agreement for a course of conversion training at the expense of the employer, we ruled that jurisdiction over the action belongs to the civil court: On appeal to this court, we held that jurisdiction over the controversy belongs to the civil courts. We stated that the action was for breach of a contractual obligation, which is intrinsically a civil dispute. We further stated that while seemingly the cause of action arose from employer-employee relations, the employer’s claim for damages is grounded on "wanton failure and refusal" without just cause to report to duty coupled with the averment that the employee "maliciously and with bad faith" violated the terms and conditions of the contract to the damage of the employer. Such averments removed the controversy from the coverage of the Labor Code of the Philippines and brought it within the purview of the Civil Law. Jurisprudence has evolved the rule that claims for damages under paragraph 4 of Article 217, to be cognizable by the Labor Arbiter, must have a reasonable causal connection with any of the claims provided for in that article. Only if there is such a connection with the other claims can the claim for damages be considered as arising from employer-employee relations.12 The claims were the natural consequences flowing from a breach of an obligation, intrinsically civil in nature. In Medina v. Castro-Bartolome,13 we held that a complaint of an employee for damages against the employer for slanderous remarks made against him was within the exclusive jurisdiction of the regular courts of justice because the cause of action of the plaintiff was for damages for tortious acts allegedly committed by the employer. The fact that there was between the parties an employer-employee relationship does not negate the jurisdiction of the trial court. In Singapore Airlines Ltd. v. Paño,14 we held that: Stated differently, petitioner seeks protection under the civil laws and claims no benefits under the Labor Code.1âwphi1The primary relief sought is for liquidated damages for breach of a contractual obligation. The other items demanded are not labor benefits demanded by workers generally taken cognizance of in labor disputes, such as payment of wages, overtime compensation or separation pay. The items claimed are the natural consequences flowing from breach of an obligation, intrinsically a civil dispute. In Dai-Chi Electronics Manufacturing Corporation v. Villarama, Jr.,15 the petitioner sued its employee Adonis Limjuco for breach of contract which reads: That for a period of two (2) years after termination of service from EMPLOYER, EMPLOYEE shall not in any manner be connected, and/or employed, be a consultant and/or be an informative body directly or indirectly, with any business firm, entity or undertaking engaged in a business similar to or in competition with that of the EMPLOYER."16 The petitioner alleged in its complaint with the trial court that:

Petitioner claimed that private respondent became an employee of Angel Sound Philippines Corporation, a corporation engaged in the same line of business as that of petitioner, within two years from January 30, 1992, the date of private respondent’s resignation from petitioner’s employ. Petitioner further alleged that private respondent is holding the position of Head of the Material Management Control Department, the same position he held while in the employ of petitioner.17 The trial court dismissed the case for lack of jurisdiction over the subject matter because the cause of action for damages arose out of the parties’ employer-employee relationship. We reversed the order of the trial court and held, thus: Petitioner does not ask for any relief under the Labor Code of the Philippines. It seeks to recover damages agreed upon in the contract as redress for private respondent’s breach of his contractual obligation to its "damage and prejudice" (Rollo, p. 57). Such cause of action is within the realm of Civil Law, and jurisdiction over the controversy belongs to the regular courts. More so when we consider that the stipulation refers to the post-employment relations of the parties.18 In this case, the private respondent’s first cause of action for damages is anchored on the petitioner’s employment of deceit and of making the private respondent believe that he would fulfill his obligation under the employment contract with assiduousness and earnestness. The petitioner volte face when, without the requisite thirty-day notice under the contract and the Labor Code of the Philippines, as amended, he abandoned his office and rejoined his former employer; thus, forcing the private respondent to hire a replacement. The private respondent was left in a lurch, and its corporate plans and program in jeopardy and disarray. Moreover, the petitioner took off with the private respondent’s computer diskette, papers and documents containing confidential information on employee compensation and other bank matters. On its second cause of action, the petitioner simply walked away from his employment with the private respondent sans any written notice, to the prejudice of the private respondent, its banking operations and the conduct of its business. Anent its third cause of action, the petitioner made false and derogatory statements that the private respondent reneged on its obligations under their contract of employment; thus, depicting the private respondent as unworthy of trust. It is evident that the causes of action of the private respondent against the petitioner do not involve the provisions of the Labor Code of the Philippines and other labor laws but the New Civil Code. Thus, the said causes of action are intrinsically civil. There is no causal relationship between the causes of action of the private respondent’s causes of action against the petitioner and their employer-employee relationship. The fact that the private respondent was the erstwhile employer of the petitioner under an existing employment contract before the latter abandoned his employment is merely incidental. In fact, the petitioner had already been replaced by the private respondent before the action was filed against the petitioner. IN LIGHT OF ALL THE FOREGOING, the Petition is DENIED. The Decision of the Court of Appeals dismissing the petition of the petitioner is AFFIRMED. SO ORDERED. G.R. No. 121948 October 8, 2001 PERPETUAL HELP CREDIT COOPERATIVE, INC., petitioner, vs. BENEDICTO FABURADA, SISINITA VILLAR, IMELDA TAMAYO, HAROLD CATIPAY, and the NATIONAL LABOR RELATIONS COMMISSION, Fourth Division, Cebu City, respondents. SANDOVAL-GUTIERREZ, J.: On January 3, 1990, Benedicto Faburada, Sisinita Vilar, Imelda Tamayo and Harold Catipay, private respondents, filed a complaint against the Perpetual Help Credit Cooperative, Inc. (PHCCI), petitioner, with the Arbitration Branch, Department of Labor and Employment (DOLE), Dumaguete City, for illegal dismissal, premium pay on holidays and rest days, separation pay, wage differential, moral damages, and attorney's fees. Forthwith, 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 co-

owners of the cooperative. Furthermore, private respondents have not exhausted the remedies provided in the cooperative by-laws. On September 3, 1990, petitioner filed a supplemental motion to dismiss alleging that Article 121 of R.A. No. 6939, otherwise known as the Cooperative Development Authority Law which took effect on March 26, 1990, requires conciliation or mediation within the cooperative before a resort to judicial proceeding. On the same date, the Labor Arbiter denied petitioner's motion to dismiss, holding that the case is impressed with employer-employee relationship and that the law on cooperatives is subservient to the Labor Code. On November 23, 1993, the Labor Arbiter rendered a decision, the dispositive portion of which reads: WHEREFORE, premises considered, judgment is hereby rendered declaring complainants illegally dismissed, thus respondent is directed to pay Complainants backwages computed from the time they were illegally dismissed up to the actual reinstatement but subject to the three year backwages rule, separation pay for one month for every year of service since reinstatement is evidently not feasible anymore, to pay complainants 13th month pay, wage differentials and Ten Percent (10%) attorney's fees from the aggregate monetary award. However, complainant Benedicto Faburada shall only be awarded what are due him in proportion to the nine and a half months that he had served the respondent, he being a part-time employee. All other claims are hereby dismissed for lack of merit. The computation of the foregoing awards is hereto attached and forms an integral part of this decision." On appeal,1 the NLRC affirmed the Labor Arbiter's decision. Hence, this petition by the PHCCI. The issue for our resolution is whether or not respondent judge committed grave abuse of discretion in ruling that there is an employer-employee relationship between the parties and that private respondents were illegally dismissed. Petitioner PHCCI contends that private respondents are its members and are working for it as volunteers. Not being regular employees, they cannot sue petitioner. In determining the existence of an employer-employee relationship, the following elements are considered: (1 ) the selection and engagement of the worker or the power to hire; (2) the power to dismiss; (3) the payment of wages by whatever means; and (4) the power to control the worker's conduct, with the latter assuming primacy in the overall consideration. No particular form of proof is required to prove the existence of an employer-employee relationship. Any competent and relevant evidence may show the relationship.2 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. But unfortunately, they were dismissed. That an employer-employee exists between the parties is shown by the averments of private respondents in their respective affidavits, carefully considered by respondent NLRC in affirming the Labor Arbiter's decision, thus: Benedicto Faburada —Regular part-time Computer programmer/ operator. Worked with the Cooperative since June 1, 1988 up to December 29, 1989. Work schedule: Tuesdays and Thursdays, from 1:00 p.m. to 5:30 p.m. and every Saturday from 8:00 to 11:30 a.m. and 1:00 to 4:00 p.m. and for at least three (3) hours during Sundays. Monthly salary: P1,000.00 — from June to December 1988; P1,350.00 - from January to June 1989; and P1,500.00 from July to December 1989. Duties: Among others, — Enter data into the computer; compute interests on savings deposits, effect mortuary deductions and dividends on fixed deposits; maintain the masterlist of the cooperative members; perform various forms for mimeographing; and perform such other duties as may be assigned from time to time.

Sisinita Vilar — Clerk. Worked with the Cooperative since December 1, 1987 up to December 29, 1989.Work schedule: Regular working hours. Monthly salary: P500.00 — from December 1, 1987 to December 31, 1988; P1,000.00 — from January 1, 1989 to June 30, 1989; and P1,150.00 — from July 1, 1989 to December 31, 1989. Duties: Among others, Prepare summary of salary advances, journal vouchers, daily summary of disbursements to respective classifications; schedule loans; prepare checks and cash vouchers for regular and emergency loans; reconcile bank statements to the daily summary of disbursements; post the monthly balance of fixed and savings deposits in preparation for the computation of interests, dividends, mortuary and patronage funds; disburse checks during regular and emergency loans; and perform such other bookkeeping and accounting duties as may be assigned to her from time to time. Imelda C. Tamayo — Clerk. Worked with the Cooperative since October 19, 1987 up to December 29, 1989. Work schedule: Monday to Friday - 8:00 to 11:30 a.m and 2:00 to 5:30 p.m.; every Saturday — 8:00 to 11:30 a.m and 1:00 to 4:00 p.m; and for one Sunday each month - for at least three (3) hours. Monthly salary: P60.00 — from October to November 1987; P250.00 for December 1987; P500.00 — from January to December 1988; P950 — from January to June 1989; and P1,000.00 from July to December 1989.Duties: Among others, pick up balances for the computation of interests on savings deposit, mortuary, dividends and patronage funds; prepare cash vouchers; check petty cash vouchers; take charge of the preparation of new passbooks and ledgers for new applicants; fill up members logbook of regular depositors, junior depositors and special accounts; take charge of loan releases every Monday morning; assist in the posting and preparation of deposit slips; receive deposits from members; and perform such other bookkeeping and accounting duties as may be assigned her from time to time. Harold D. Catipay — Clerk. Worked with the Cooperative since March 3 to December 29, 1989. Work schedule: — Monday to Friday — 8:00 to 11:30 a.m. and 2:00 to 5:30 p.m.; Saturday — 8:00 to 11:30 a.m. and 1:00 to 4:00 p.m.; and one Sunday each month — for at least three (3) hours. Monthly salary: P900.00 — from March to June 1989; P1,050.00 - from July to December 1989. Duties: Among others, Bookkeeping, accounting and collecting duties, such as, post daily collections from the two (2) collectors in the market; reconcile passbooks and ledgers of members in the market; and assist the other clerks in their duties. All of them were given a memorandum of termination on January 2, 1990, effective December 29, 1989. We are not prepared to disregard the findings of both the Labor Arbiter and respondent NLRC, the same being supported by substantial evidence, that quantum of evidence required in quasi judicial proceedings, like this one. Necessarily, this leads us to the issue of whether or not private respondents are regular employees. Article 280 of the Labor Code provides for three kinds of employees: (1) regular employees or those who have been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer; (2) project employees or those whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season; and (3) casual employees or those who are neither regular nor project employees.3 The employees who are deemed regular are: (a) those who have been engaged to perform activities which are usually necessary or desirable in the usual trade or business of the employer; and (b) those casual employees who have rendered at least one (1 ) year of service, whether such service is continuous or broken, with respect to the activity in which they are employed.4 Undeniably, private respondents were rendering services necessary to the day-to-day operations of petitioner PHCCI. This fact alone qualified them as regular employees. All of them, except Harold D. Catipay, worked with petitioner for more than one (1) year: Benedicto Faburada, for one and a half (1 1/2) years; Sisinita Vilar, for two (2) years; and Imelda C. Tamayo, for two (2) years and two (2) months. That Benedicto Faburada worked only on a part-time basis, does not mean that he is not a regular employee. One's regularity of employment is not determined by the number of hours one works but by the nature and by the length of time one has

been in that particular job.5 Petitioner's contention that private respondents are mere volunteer workers, not regular employees, must necessarily fail. Its invocation of San Jose City Electric Cooperative vs. Ministry of Labor and Employment (173 SCRA 697, 703 (1989) is misplaced. The issue in this case is whether or not the employees-members of a cooperative can organize themselves for purposes of collective bargaining, not whether or not the members can be employees. Petitioner missed the point As regular employees or workers, private respondents are entitled to security of tenure. Thus, their services may be terminated only for a valid cause, with observance of due process. The valid causes are categorized into two groups: the just causes under Articles 282 of the Labor Code and the authorized causes under Articles 283 and 284 of the same Code. The just causes are: (1) serious misconduct or willful disobedience of lawful orders in connection with the employee's work; (2) gross or habitual neglect of duties; (3) fraud or willful breach of trust; (4) commission of a crime or an offense against the person of the employer or his immediate family member or representative; and, analogous cases. The authorized causes are: (1) the installation of labor-saving devices; (2) redundancy; (3) retrenchment to prevent losses; and (4) closing or cessation of operations of the establishment or undertaking, unless the closing is for the purpose of circumventing the provisions of law. Article 284 provides that an employer would be authorized to terminate the services of an employee found to be suffering from any disease if the employee's continued employment is prohibited by law or is prejudicial to his health or to the health of his fellow employees6 Private respondents were dismissed not for any of the above causes. They were dismissed because petitioner considered them to be mere voluntary workers, being its members, and as such work at its pleasure. Petitioner thus vehemently insists that their dismissal is not against the law. Procedural due process requires that the employer serve the employees to be dismissed two (2) written notices before the termination of their employment is effected: (a) the first, to apprise them of the particular acts or omissions for which their dismissal is sought and (b) the second, to inform them of the decision of the employer that they are being dismissed.7 In this case, only one notice was served upon private respondents by petitioner. It was in the form of a Memorandum signed by the Manager of the Cooperative dated January 2, 1990 terminating their services effective December 29, 1989. Clearly, petitioner failed to comply with the twin requisites of a valid notice. We hold that private respondents have been illegally dismissed. Petitioner contends that the labor arbiter has no jurisdiction to take cognizance of the complaint of private respondents considering that they failed to submit their dispute to the grievance machinery as required by P.D. 175 (strengthening the Cooperative Movement) 8 and its implementing rules and regulations under LOI 23. Likewise, the Cooperative Development Authority did not issue a Certificate of Non-Resolution pursuant to Section 8 of R.A. 6939 or the Cooperative Development Authority Law. As aptly stated by the Solicitor General in his comment, P.D. 175 does not provide for a grievance machinery where a dispute or claim may first be submitted. LOI 23 refers to instructions to the Secretary of Public Works and Communications to implement immediately the recommendation of the Postmaster General for the dismissal of some employees of the Bureau of Post. Obviously, this LOI has no relevance to the instant case. Article 121 of Republic Act No. 6938 (Cooperative Code of the Philippines) provides the procedure how cooperative disputes are to be resolved, thus: ART. 121. Settlement of Disputes. — Disputes among members, officers, directors, and committee members, and intra-cooperative disputes shall, as far as practicable, be settled amicably in accordance with the conciliation or mediation mechanisms embodied in the by-laws of the cooperative, and in applicable laws. Should such a conciliation/mediation proceeding fail, the matter shall be settled in a court of competent jurisdiction." Complementing this Article is Section8 of R.A. No. 6939 (Cooperative Development Authority Law) which reads:

SEC. 8 Mediation and Conciliation. — Upon request of either or both parties, the Authority shall mediate and conciliate disputes within a cooperative or between cooperatives: Provided, That if no mediation or conciliation succeeds within three (3) months from request thereof, a certificate of non-resolution shall be issued by the Commission prior to the filing of appropriate action before the proper courts. The above provisions apply to members, officers and directors of the cooperative involved in disputes within a cooperative or between cooperatives. There is no evidence that private respondents are members of petitioner PHCCI and even if they are, the dispute is about payment of wages, overtime pay, rest day and termination of employment. Under Art. 217 of the Labor Code, these disputes are within the original and exclusive jurisdiction of the Labor Arbiter. As illegally dismissed employees, private respondents are therefore entitled to reinstatement without loss of seniority rights and other privileges and to full backwages, inclusive of allowances, plus other benefits or their monetary equivalent computed from the time their compensation was withheld from them up to the time of their actual reinstatement.9 Since they were dismissed after March 21, 1989, the effectivity date of R.A. 671510 they are granted full backwages, meaning, without deducting from their backwages the earnings derived by them elsewhere during the period of their illegal dismissal.11 If reinstatement is no longer feasible, as when the relationship between petitioner and private respondents has become strained, payment of their separation pay in lieu of reinstatement is in order.12 WHEREFORE, the petition is hereby DENIED. The decision of respondent NLRC is AFFIRMED, with modification in the sense that the backwages due private respondents shall be paid in full, computed from the time they were illegally dismissed up to the time of the finality of this Decision.13 SO ORDERED. G.R. No. 124382 August 16, 1999 PASTOR DIONISIO V. AUSTRIA, petitioner, vs. HON. NATIONAL LABOR RELATIONS COMMISSION (Fourth Division), CEBU CITY, CENTRAL PHILIPPINE UNION MISSION CORPORATION OF THE SEVENTH-DAY ADVENTISTS, ELDER HECTOR V. GAYARES, PASTORS REUBEN MORALDE, OSCAR L. ALOLOR, WILLIAM U. DONATO, JOEL WALES, ELY SACAY, GIDEON BUHAT, ISACHAR GARSULA, ELISEO DOBLE, PORFIRIO BALACY, DAVID RODRIGO, LORETO MAYPA, MR. RUFO GASAPO, MR. EUFRONIO IBESATE, MRS. TESSIE BALACY, MR. ZOSIMO KARA-AN, and MR. ELEUTERIO LOBITANA, respondents. KAPUNAN, J.: Subject of the instant petition for certiorari under Rule 65 of the Rules of Court is the Resolution1 of public respondent National Labor Relations Commission (the "NLRC"), rendered on 23 January 1996, in NLRC Case No. V-0120-93, entitled "Pastor Dionisio V. Austria vs. Central Philippine Union Mission Corporation of Seventh Day Adventists, et al.," which dismissed the case for illegal dismissal filed by the petitioner against private respondents for lack of jurisdiction.1âwphi1.nêt Private Respondent Central Philippine Union Mission Corporation of the Seventh-Day Adventists (hereinafter referred to as the "SDA") is a religious corporation duly organized and existing under Philippine law and is represented in this case by the other private respondents, officers of the SDA. Petitioner, on the other hand, was a Pastor of the SDA until 31 October 1991, when his services were terminated. The records show that petitioner Pastor Dionisio V. Austria worked with the SDA for twenty eight (28) years from 1963 to 1991.2 He began his work with the SDA on 15 July 1963 as a literature evangelist, selling literature of the SDA over the island of Negros. From then on, petitioner worked his way up the ladder and got promoted several times. In January, 1968, petitioner became the Assistant Publishing Director in the West Visayan Mission of the SDA. In July, 1972, he was elevated to the position of Pastor in the West Visayan Mission covering the island of Panay, and the provinces of Romblon and Guimaras. Petitioner held the same position up to 1988. Finally, in 1989, petitioner was promoted as District Pastor of the Negros Mission of the SDA and was assigned at

Sagay, Balintawak and Toboso, Negros Occidental, with twelve (12) churches under his jurisdiction. In January, 1991, petitioner was transferred to Bacolod City. He held the position of district pastor until his services were terminated on 31 October 1991. On various occasions from August up to October, 1991, petitioner received several communications3 from Mr. Eufronio Ibesate, the treasurer of the Negros Mission asking him to admit accountability and responsibility for the church tithes and offerings collected by his wife, Mrs. Thelma Austria, in his district which amounted to P15,078.10, and to remit the same to the Negros Mission. In his written explanation dated 11 October 1991,4 petitioner reasoned out that he should not be made accountable for the unremitted collections since it was private respondents Pastor Gideon Buhat and Mr. Eufronio Ibesate who authorized his wife to collect the tithes and offerings since he was very sick to do the collecting at that time. Thereafter, on 16 October 1991, at around 7:30 a.m., petitioner went to the office of Pastor Buhat, the president of the Negros Mission. During said call, petitioner tried to persuade Pastor Buhat to convene the Executive Committee for the purpose of settling the dispute between him and the private respondent, Pastor David Rodrigo. The dispute between Pastor Rodrigo and petitioner arose from an incident in which petitioner assisted his friend, Danny Diamada, to collect from Pastor Rodrigo the unpaid balance for the repair of the latter's motor vehicle which he failed to pay to Diamada.5 Due to the assistance of petitioner in collecting Pastor Rodrigo's debt, the latter harbored ill-feelings against petitioner. When news reached petitioner that Pastor Rodrigo was about to file a complaint against him with the Negros Mission, he immediately proceeded to the office of Pastor Buhat on the date abovementioned and asked the latter to convene the Executive Committee. Pastor Buhat denied the request of petitioner since some committee members were out of town and there was no quorum. Thereafter, the two exchanged heated arguments. Petitioner then left the office of Pastor Buhat. While on his way out, petitioner overheard Pastor Buhat saying, "Pastor daw inisog na ina iya (Pador you are talking tough)."6 Irked by such remark, petitioner returned to the office of Pastor Buhat, and tried to overturn the latter's table, though unsuccessfully, since it was heavy. Thereafter, petitioner banged the attaché case of Pastor Buhat on the table, scattered the books in his office, and threw the phone.7 Fortunately, private respondents Pastors Yonilo Leopoldo and Claudio Montaño were around and they pacified both Pastor Buhat and petitioner. On 17 October 1991, petitioner received a letter8 inviting him and his wife to attend the Executive Committee meeting at the Negros Mission Conference Room on 21 October 1991, at nine in the morning. To be discussed in the meeting were the non-remittance of church collection and the events that transpired on 16 October 1991. A fact-finding committee was created to investigate petitioner. For two (2) days, from October 21 and 22, the fact-finding committee conducted an investigation of petitioner. Sensing that the result of the investigation might be one-sided, petitioner immediately wrote Pastor Rueben Moralde, president of the SDA and chairman of the fact-finding committee, requesting that certain members of the fact-finding committee be excluded in the investigation and resolution of the case.9 Out of the six (6) members requested to inhibit themselves from the investigation and decision-making, only two (2) were actually excluded, namely: Pastor Buhat and Pastor Rodrigo. Subsequently, on 29 October 1991, petitioner received a letter of dismissal10 citing 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 employer's duly authorized representative, as grounds for the termination of his services. Reacting against the adverse decision of the SDA, petitioner filed a complaint11 on 14 November 1991, before the Labor Arbiter for illegal dismissal against the SDA and its officers and prayed for reinstatement with backwages and benefits, moral and exemplary damages and other labor law benefits. On 15 February 1993, Labor Arbiter Cesar D. Sideño rendered a decision in favor of petitioner, the dispositive portion of which reads thus: WHEREFORE, PREMISES CONSIDERED, respondents CENTRAL PHILIPPINE UNION MISSION CORPORATION OF THE SEVENTH-DAY ADVENTISTS (CPUMCSDA) and its officers, respondents

herein, are hereby ordered to immediately reinstate complainant Pastor Dionisio Austria to his former position as Pastor of Brgy. Taculing, Progreso and Banago, Bacolod City, without loss of seniority and other rights and backwages in the amount of ONE HUNDRED FIFTEEN THOUSAND EIGHT HUNDRED THIRTY PESOS (P115,830.00) without deductions and qualificatioons. Respondent CPUMCSDA is further ordered to pay complainant the following: A. 13th month pay — P 21,060.00 B. Allowance — P 4,770.83 C. Service Incentive Leave Pay — P 3,461.85 D. Moral Damages — P 50,000.00 E. Exemplary Damages — P 25,000.00 F. Attorney's Fee — P 22,012.27 SO ORDERED.12 The SDA, through its officers, appealed the decision of the Labor Arbiter to the National Labor Labor Relations Commission, Fourth Division, Cebu City. In a decision, dated 26 August 1994, the NLRC vacated the findings of the Labor Arbiter. The decretal portion of the NLRC decision states: WHEREFORE, the Decision appealed from is hereby VACATED and a new one ENTERED dismissing this case for want of merit. SO ORDERED.13 Petitioner filed a motion for reconsideration of the above-named decision. On 18 July 1995, the NLRC issued a Resolution reversing its original decision. The dispositive portion of the resolution reads: WHEREFORE, premises considered, Our decision dated August 26, 1994 is VACATED and the decision of the Labor Arbiter dated February 15, 1993 is REINSTATED. SO ORDERED.14 In view of the reversal of the original decision of the NLRC, the SDA filed a motion for reconsideration of the above resolution. Notable in the motion for reconsideration filed by private respondents is their invocation, for the first time on appeal, that the Labor Arbiter has no jurisdiction over the complaint filed by petitioner due to the constitutional provision on the separation of church and state since the case allegedly involved an ecclesiastical affair to which the State cannot interfere. The 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. The dispositive portion of the NLRC resolution dated 23 January 1996, subject of the present petition, is as follows: WHEREFORE, in view of all the foregoing, the instant motion for reconsideration is hereby granted. Accordingly, this case is hereby DISMISSED for lack of jurisdiction. SO ORDERED.15 Hence, the recourse to this Court by petitioner. After the filing of the petition, the Court ordered the Office of the Solicitor General (the "OSG") to file its comment on behalf of public respondent NLRC. Interestingly, the OSG filed a manifestation and motion in lieu of comment16 setting forth its stand that it cannot sustain the resolution of the NLRC. In its manifestation, the OSG submits that the termination of petitioner from his employment may be questioned before the NLRC as the same is secular in nature, not ecclesiastical. After the submission of memoranda of all the parties, the case was submitted for decision. The issues to be resolved in this petition are: 1) Whether or not the Labor Arbiter/NLRC has jurisdiction to try and decide the complaint filed by petitioner against the SDA; 2) Whether or not the termination of the services of petitioner is an ecclesiastical affair, and, as such, involves the separation of church and state; and 3) Whether or not such termination is valid.

The first two issues shall be resolved jointly, since they are related. 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. Since the matter at bar allegedly involves the discipline of a religious minister, it is to be considered a purely ecclesiastical affair to which the State has no right to interfere. The contention of private respondents deserves scant consideration. The principle of separation of church and state finds no application in this case. The rationale of the principle of the separation of church and state is summed up in the familiar saying, "Strong fences make good-neighbors."17 The idea advocated by this principle is to delineate the boundaries between the two institutions and thus avoid encroachments by one against the other because of a misunderstanding of the limits of their respective exclusive jurisdictions.18 The demarcation line calls on the entities to "render therefore unto Ceasar the things that are Ceasar's and unto God the things that are God's."19 While the state is prohibited from interfering in purely ecclesiastical affairs, the Church is likewise barred from meddling in purely secular matters.20 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 of 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.21 Based on this definition, an ecclesiastical affair involves the relationship between the church and its members and relate to matters of faith, religious doctrines, worship and governance of the congregation. To be concrete, examples of this so-called ecclesiastical affairs to which the State cannot meddle are proceedings for excommunication, ordinations of religious ministers, administration of sacraments and other activities with attached religious significance. The case at bar does not even remotely concern any of the abovecited examples. While the matter at hand relates to the church and its religious minister it does not ipso facto give the case a religious significance. 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. In this case, petitioner was not ex-communicated or expelled from the membership of the SDA but was terminated from employment. Indeed, the matter of terminating an employee, which is purely secular in nature, is different from the ecclesiastical act of expelling a member from the religious congregation. As pointed out by the OSG in its memorandum, the grounds invoked for petitioner's 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 employer's duly authorized representative, are all based on Article 282 of the Labor Code which enumerates the just causes for termination of employment.22 By this alone, it is palpable that the reason for petitioner's 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 petitioner's letter of termination. As aptly stated by the OSG, this again is an eloquent admission by private respondents that NLRC has jurisdiction over the case. Aside from these, SDA admitted in a certification23 issued by its officer, Mr. Ibesate, that petitioner has been its employee for twenty-eight (28) years. SDA even registered petitioner with the Social Security System (SSS) as its employee. As a matter of fact, the worker's records of petitioner have been submitted by private respondents as part of their exhibits. From all of these it is clear that when the SDA terminated the services of petitioner, it was merely exercising its management prerogative to fire an employee which it believes to be unfit for the job. As such, the State, through the Labor Arbiter and the NLRC, has the right to take cognizance of the case and to determine whether the SDA, as employer, rightfully exercised its management prerogative to dismiss an employee. This is in consonance with the mandate of the Constitution to afford full protection to labor. Under the Labor Code, the provision which governs the dismissal of employees, is comprehensive enough to include religious corporations, such as the SDA, in its coverage. Article 278 of the Labor Code on post-employment states that "the provisions of this Title shall apply to all establishments

or undertakings, whether for profit or not." Obviously, the cited article does not make any exception in favor of a religious corporation. This is made more evident by the fact that the Rules Implementing the Labor Code, particularly, Section 1, Rule 1, Book VI on the Termination of Employment and Retirement, categorically includes religious institutions in the coverage of the law, to wit: Sec. 1. Coverage. — This Rule shall apply to all establishments and undertakings, whether operated for profit or not, including educational, medical, charitable and religious institutions and organizations, in cases of regular employment with the exception of the Government and its political subdivisions including government-owned or controlled corporations.24 With this clear mandate, the SDA cannot hide behind the mantle of protection of the doctrine of separation of church and state to avoid its responsibilities as an employer under the Labor Code. Finally, as correctly pointed out by petitioner, private respondents are estopped from raising the issue of lack of jurisdiction for the first time on appeal. It is already too late in the day for private respondents to question the jurisdiction of the NLRC and the Labor Arbiter since the SDA had fully participated in the trials and hearings of the case from start to finish. The Court has already ruled that the active participation of a party against whom the action war brought, coupled with his failure to object to the jurisdiction of the court or quasi-judicial body where the action is pending, is tantamount to an invocation of that jurisdiction and a willingness to abide by the resolution of the case and will bar said party from later on impugning the court or body's jurisdiction.25 Thus, the active participation of private respondents in the proceedings before the Labor Arbiter and the NLRC mooted the question on jurisdiction. The jurisdictional question now settled, we shall now proceed to determine whether the dismissal of petitioner was valid. At the outset, we note that as a general rule, findings of fact of administrative bodies like the NLRC are binding upon this Court. A review of such findings is justified, however, in instances when the findings of the NLRC differ from those of the labor arbiter, as in this case.26 When the findings of NLRC do not agree with those of the Labor Arbiter, this Court must of necessity review the records to determine which findings should be preferred as more comfortable to the evidentiary facts.27 We turn now to the crux of the matter. In termination cases, the settled rule is that the burden of proving that the termination was for a valid or authorized cause rests on the employer.28 Thus, private respondents must not merely rely on the weaknesses of petitioner's evidence but must stand on the merits of their own defense. The issue being the legality of petitioner's dismissal, the same must be measured against the requisites for a valid dismissal, namely: (a) the employee must be afforded due process, i.e., he must be given an opportunity to be heard and to defend himself, and; (b) the dismissal must be for a valid cause as provided in Article 282 of the Labor Code.29 Without the concurrence of this twin requirements, the termination would, in the eyes of the law, be illegal.30 Before the services of an employee can be validly terminated, Article 277 (b) of the Labor Code and Section 2, Rule XXIII, Book V of the Rules Implementing the Labor Code further require the employer to furnish the employee with two (2) written notices, to wit: (a) a written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side; and, (b) a written notice of termination served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. The first notice, which may be considered as the proper charge, serves to apprise the employee of the particular acts or omissions for which his dismissal is sought.31 The second notice on the other hand seeks to inform the employee of the employer's decision to dismiss him.32 This decision, however, must come only after the employee is given a reasonable period from receipt of the first notice within which to answer the charge and ample opportunity to be heard and defend himself with the assistance of a representative, if he so desires.33 This is in consonance with the express provision of the law on the protection to labor and the broader dictates of procedural due process.34 Non-compliance therewith is fatal because these requirements are conditions sine quanon before dismissal may be validly effected.35

Private respondent failed to substantially comply with the above requirements. With regard to the first notice, the letter,36 dated 17 October 1991, which notified petitioner and his wife to attend the meeting on 21 October 1991, cannot be construed as the written charge required by law. A perusal of the said letter reveals that it never categorically stated the particular acts or omissions on which petitioner's impending termination was grounded. In fact, the letter never even mentioned that petitioner would be subject to investigation. The letter merely mentioned that petitioner and his wife were invited to a meeting wherein what would be discussed were the alleged unremitted church tithes and the events that transpired on 16 October 1991. Thus, petitioner was surprised to find out that the alleged meeting turned out to be an investigation. From the tenor of the letter, it cannot be presumed that petitioner was actually on the verge of dismissal. The alleged grounds for the dismissal of petitioner from the service were only revealed to him when the actual letter of dismissal was finally issued. For this reason, it cannot be said that petitioner was given enough opportunity to properly prepare for his defense. While admittedly, private respondents complied with the second requirement, the notice of termination, this does not cure the initial defect of lack of the proper written charge required by law. In the letter of termination,37 dated 29 October 1991, private respondents enumerated the following as grounds for the dismissal of petitioner, 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 employer's duly authorized representative. Breach of trust and misappropriation of denominational funds refer to the alleged failure of petitioner to remit to the treasurer of the Negros Mission tithes, collections and offerings amounting to P15,078.10 which were collected by his wife, Mrs. Thelma Austria, in the churches under his jurisdiction. On the other hand, serious misconduct and commission of an offense against the person of the employer's duly authorized representative pertain to the 16 October 1991 incident wherein petitioner allegedly committed an act of violence in the office of Pastor Gideon Buhat. The final ground invoked by private respondents is gross and habitual neglect of duties allegedly committed by petitioner. We cannot sustain the validity of dismissal based on the ground of breach of trust. Private respondents allege that they have lost their confidence in petitioner for his failure, despite demands, to remit the tithes and offerings amounting to P15,078.10, which were collected in his district. A careful study of the voluminous records of the case reveals that there is simply no basis for the alleged loss of confidence and breach of trust. Settled is the rule that under Article 282 (c) of the Labor Code, the breach of trust must be willful. A breach is willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.38 It must rest on substantial grounds and not on the employer's arbitrariness, whims, caprices or suspicion; otherwise the employee would eternally remain at the mercy of the employer.39 It should be genuine and not simulated.40 This ground has never been intended to afford an occasion for abuse, because of its subjective nature. The records show that there were only six (6) instances when petitioner personally collected and received from the church treasurers the tithes, collections, and donations for the church.41 The stenographic notes on the testimony of Naomi Geniebla, the Negros Mission Church Auditor and a witness for private respondents, show that Pastor Austria was able to remit all his collections to the treasurer of the Negros Mission.42 Though private respondents were able to establish that petitioner collected and received tithes and donations several times, they were notable to establish that petitioner failed to remit the same to the Negros Mission, and that he pocketed the amount and used it for his personal purpose. In fact, as admitted by their own witness, Naomi Geniebla, petitioner remitted the amounts which he collected to the Negros Mission for which corresponding receipts were issued to him. Thus, the allegations of private respondents that petitioner breached their trust have no leg to stand on. In a vain attempt to support their claim of breach of trust, private respondents try to pin on petitioner the alleged non-remittance of the tithes collected by his wife. This argument deserves little consideration. First of all, as proven by convincing and substantial evidence consisting of the testimonies of the witnesses for private respondents who are church treasurers, it was Mrs.

Thelma Austria who actually collected the tithes and donations from them, and, who failed to remit the same to the treasurer of the Negros Mission. The testimony of these church treasurers were corroborated and confirmed by Ms. Geniebla and Mr. Ibesate, officers of the SDA. Hence, in the absence of conspiracy and collusion, which private respondents failed to demonstrate, between petitioner and his wife, petitioner cannot be made accountable for the alleged infraction committed by his wife. After all, they still have separate and distinct personalities. For this reason, the Labor Arbiter found it difficult to see the basis for the alleged loss of confidence and breach of trust. The Court does not find any cogent reason, therefore, to digress from the findings of the Labor Arbiter which is fully supported by the evidence on record. With respect to the grounds of serious misconduct and commission of an offense against the person of the employer's duly authorized representative, we find the same unmeritorious and, as such, do not warrant petitioner's dismissal from the service. Misconduct has been defined as improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment.43 For misconduct to be considered serious it must be of such grave and aggravated character and not merely trivial or unimportant.44 Based on this standard, we believe that the act of petitioner in banging the attaché case on the table, throwing the telephone and scattering the books in the office of Pastor Buhat, although improper, cannot be considered as grave enough to be considered as serious misconduct. After all, as correctly observed by the Labor Arbiter, though petitioner committed damage to property, he did not physically assault Pastor Buhat or any other pastor present during the incident of 16 October 1991. In fact, the alleged offense committed upon the person of the employer's representatives was never really established or proven by private respondents. Hence, there is no basis for the allegation that petitioner's act constituted serious misconduct or that the same was an offense against the person of the employer's duly authorized representative. As such, the cited actuation of petitioner does not justify the ultimate penalty of dismissal from employment. While the Constitution does condone wrongdoing by the employee, it nevertheless urges a moderation of the sanctions that may be applied to him in light of the many disadvantages that weigh heavily on him like an albatross on his neck.45 Where a penalty less punitive would suffice, whatever missteps may have been committed by the worker ought not be visited with a consequence so severe such as dismissal from employment.46 For the foregoing reasons, we believe that the minor infraction committed by petitioner does not merit the ultimate penalty of dismissal. The final ground alleged by private respondents in terminating petitioner, gross and habitual neglect of duties, does not require an exhaustive discussion. Suffice it to say that all private respondents had were allegations but not proof. Aside from merely citing the said ground, private respondents failed to prove culpability on the part of petitioner. In fact, the evidence on record shows otherwise. Petitioner's rise from the ranks disclose that he was actually a hard-worker. Private respondents' evidence,47 which consisted of petitioner's Worker's Reports, revealed how petitioner travelled to different churches to attend to the faithful under his care. Indeed, he labored hard for the SDA, but, in return, he was rewarded with a dismissal from the service for a non-existent cause. In view of the foregoing, we sustain the finding of the Labor Arbiter that petitioner was terminated from service without just or lawful cause. Having been illegally dismissed, petitioner is entitled to reinstatement to his former position without loss of seniority right48 and the payment of full backwages without any deduction corresponding to the period from his illegal dismissal up to actual reinstatement.46 WHEREFORE, the petition for certiorari is GRANTED. The challenged Resolution of public respondent National Labor Relations Commission, rendered on 23 January 1996, is NULLIFIED and SET ASIDE. The Decision of the Labor Arbiter, dated 15 February 1993, is REINSTATED and hereby AFFIRMED.1âwphi1.nêt SO ORDERED. G.R. No. 160236 October 16, 2009

"G" HOLDINGS, INC., Petitioner, vs. NATIONAL MINES AND ALLIED WORKERS UNION Local 103 (NAMAWU); SHERIFFS RICHARD H. APROSTA and ALBERTO MUNOZ, all acting Sheriffs; DEPARTMENT OF LABOR AND EMPLOYMENT, Region VI, Bacolod District Office, Bacolod City, Respondents. D E C I S I O N NACHURA, J.: Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court assailing the October 14, 2003 Decision1 of the Court of Appeals (CA) in CA-G.R. SP No. 75322. The Facts The petitioner, "G" Holdings, Inc. (GHI), is a domestic corporation primarily engaged in the business of owning and holding shares of stock of different companies.2 It was registered with the Securities and Exchange Commission on August 3, 1992. Private respondent, National Mines and Allied Workers Union Local 103 (NAMAWU), was the exclusive bargaining agent of the rank and file employees of Maricalum Mining Corporation (MMC),3 an entity operating a copper mine and mill complex at Sipalay, Negros Occidental.4 MMC was incorporated by the Development Bank of the Philippines (DBP) and the Philippine National Bank (PNB) on October 19, 1984, on account of their foreclosure of Marinduque Mining and Industrial Corporation’s assets. MMC started its commercial operations in August 1985. Later, DBP and PNB transferred it to the National Government for disposition or privatization because it had become a non-performing asset.5 On October 2, 1992, pursuant to a Purchase and Sale Agreement6 executed between GHI and Asset Privatization Trust (APT), the former bought ninety percent (90%) of MMC’s shares and financial claims.7 These financial claims were converted into three Promissory Notes8 issued by MMC in favor of GHI totaling P500M and secured by mortgages over MMC’s properties. The notes, which were similarly worded except for their amounts, read as follows: PROMISSORY NOTE

AMOUNT - Php114,715,360.00 [Php186,550,560.00 in the second note, and Php248,734,080.00 in the third note.]

MAKATI, METRO MANILA, PHILIPPINES, October 2, 1992 For Value Received, MARICALUM MINING CORPORATION (MMC) with postal address at 4th Floor, Manila Memorial Park Bldg., 2283 Pasong Tamo Extension, Makati, Metro Manila, Philippines, hereby promises to pay "G" HOLDINGS, INC., at its office at Phimco Compound, F. Manalo Street, Punta, Sta. Ana, Manila, the amount of PESOS ONE HUNDRED FOURTEEN MILLION, SEVEN HUNDRED FIFTEEN THOUSAND AND THREE HUNDRED SIXTY (Php114,715,360.00) ["PESOS ONE HUNDRED EIGHTY SIX MILLION FIVE HUNDRED FIFTY THOUSAND FIFE HUNDRED AND SIXTY (Php186,550,560.00)" in the second note, and "PESOS TWO HUNDRED FORTY EIGHT MILLION, SEVEN HUNDRED THIRTY FOUR THOUSAND AND EIGHTY (Php248,734,080.00)" in the third note], PHILIPPINE CURRENCY, on or before October 2, 2002. Interest shall accrue on the amount of this Note at a rate per annum equal to the interest of 90-day Treasury Bills prevailing on the Friday preceding the maturity date of every calendar quarter. As collateral security, MMC hereby establishes and constitutes in favor of "G" HOLDINGS, INC., its successors and/or assigns: 1. A mortgage over certain parcels of land, more particularly listed and described in the Sheriff’s Certificate of Sale dated September 7, 1984 issued by the Ex-Officio Provincial Sheriff of Negros Occidental, Rolando V. Ramirez, with office at Bacolod City following the auction sale conducted pursuant to the provisions of Act 3135, a copy of which certificate of sale is hereto attached as Annex "A" and made an integral part hereof; 2. A chattel mortgage over assets and personal properties more particularly listed and described in the Sheriff’s Certificate of Sale dated September 7, 1984 issued by the Ex-Officio Provincial Sheriff of Negros Occidental, Rolando V. Ramirez, with office at Bacolod City following the auction

conducted pursuant to the provisions of Act 1508, a copy of which Certificate of Sale is hereto attached as Annex "B" and made an integral part hereof. 3. Mortgages over assets listed in APT Specific Catalogue GC-031 for MMC, a copy of which Catalogue is hereby made an integral part hereof by way of reference, as well as assets presently in use by MMC but which are not listed or included in paragraphs 1 and 2 above and shall include all assets that may hereinafter be acquired by MMC. MARICALUM MINING CORPORATION (Maker) x x x x9 Upon the signing of the Purchase and Sale Agreement and upon the full satisfaction of the stipulated down payment, GHI immediately took physical possession of the mine site and its facilities, and took full control of the management and operation of MMC.10 Almost four years thereafter, or on August 23, 1996, a labor dispute (refusal to bargain collectively and unfair labor practice) arose between MMC and NAMAWU, with the latter eventually filing with the National Conciliation and Mediation Board of Bacolod City a notice of strike.11 Then Labor Secretary, now Associate Justice of this Court, Leonardo A. Quisumbing, later assumed jurisdiction over the dispute and ruled in favor of NAMAWU. In his July 30, 1997 Order in OS-AJ-10-96-014 (Quisumbing Order), Secretary Quisumbing declared that the lay-off (of workers) implemented on May 7, 1996 and October 7, 1996 was illegal and that MMC committed unfair labor practice. He then ordered the reinstatement of the laid-off workers, with payment of full backwages and benefits, and directed the execution of a new collective bargaining agreement (CBA) incorporating the terms and conditions of the previous CBA providing for an annual increase in the workers’ daily wage.12 In two separate cases─G.R. Nos. 133519 and 138996─filed with this Court, we sustained the validity of the Quisumbing Order, which became final and executory on January 26, 2000.13 On May 11, 2001, then Acting Department of Labor and Employment (DOLE) Secretary, now also an Associate Justice of this Court, Arturo D. Brion, on motion of NAMAWU, directed the issuance of a partial writ of execution (Brion Writ), and ordered the DOLE sheriffs to proceed to the MMC premises for the execution of the same.14Much later, in 2006, this Court, in G.R. Nos. 157696-97, entitled Maricalum Mining Corporation v. Brion and NAMAWU,15 affirmed the propriety of the issuance of the Brion Writ. The Brion Writ was not fully satisfied because MMC’s resident manager resisted its enforcement.16 On motion of NAMAWU, then DOLE Secretary Patricia A. Sto. Tomas ordered the issuance of the July 18, 2002 Alias Writ of Execution and Break-Open Order (Sto. Tomas Writ).17 On October 11, 2002, the respondent acting sheriffs, the members of the union, and several armed men implemented the Sto. Tomas Writ, and levied on the properties of MMC located at its compound in Sipalay, Negros Occidental.18 On October 14, 2002, GHI filed with the Regional Trial Court (RTC) of Kabankalan City, Negros Occidental, Special Civil Action (SCA) No. 1127 for Contempt with Prayer for the Issuance of a Temporary Restraining Order (TRO) and Writ of Preliminary Injunction and to Nullify the Sheriff’s Levy on Properties.19 GHI contended that the levied properties were the subject of a Deed of Real Estate and Chattel Mortgage, dated September 5, 199620executed by MMC in favor of GHI to secure the aforesaid P550M promissory notes; that this deed was registered on February 24, 2000;21 and that the mortgaged properties were already extrajudicially foreclosed in July 2001 and sold to GHI as the highest bidder on December 3, 2001, as evidenced by the Certificate of Sale dated December 4, 2001.22 The trial court issued ex parte a TRO effective for 72 hours, and set the hearing on the application for a writ of injunction.23 On October 17, 2002, the trial court ordered the issuance of a Writ of Injunction (issued on October 18, 2002)24 enjoining the DOLE sheriffs from further enforcing the Sto. Tomas Writ and from conducting any public sale of the levied-on properties, subject to GHI’s posting of a P5M bond.25 Resolving, among others, NAMAWU’s separate motions for the reconsideration of the injunction order and for the dismissal of the case, the RTC issued its December 4, 2002 Omnibus Order,26 the dispositive portion of which reads:

WHEREFORE, premises considered, respondent NAMAWU Local 103’s Motion for Reconsideration dated October 23, 2002 for the reconsideration of the Order of this Court directing the issuance of Writ of Injunction prayed for by petitioner and the Order dated October 18, 2002 approving petitioner’s Injunction Bond in the amount of P5,000,000.00 is hereby DENIED. Respondent’s Motion to Dismiss as embodied in its Opposition to Extension of Temporary Restraining Order and Issuance of Writ of Preliminary Injunction with Motion to Dismiss and Suspend Period to File Answer dated October 15, 2002 is likewise DENIED. Petitioner’s Urgent Motion for the return of the levied firearms is GRANTED. Pursuant thereto, respondent sheriffs are ordered to return the levied firearms and handguns to the petitioner provided the latter puts [up] a bond in the amount of P332,200.00. Respondent’s lawyer, Atty. Jose Lapak, is strictly warned not to resort again to disrespectful and contemptuous language in his pleadings, otherwise, the same shall be dealt with accordingly. SO ORDERED.27 Aggrieved, NAMAWU filed with the CA a petition for certiorari under Rule 65, assailing the October 17, 18 and December 4, 2002 orders of the RTC.28 After due proceedings, on October 14, 2003, the appellate court rendered a Decision setting aside the RTC issuances and directing the immediate execution of the Sto. Tomas Writ. The CA ruled, among others, that the circumstances surrounding the execution of the September 5, 1996 Deed of Real Estate and Chattel Mortgage yielded the conclusion that the deed was sham, fictitious and fraudulent; that it was executed two weeks after the labor dispute arose in 1996, but surprisingly, it was registered only on February 24, 2000, immediately after the Court affirmed with finality the Quisumbing Order. The CA also found that the certificates of title to MMC’s real properties did not contain any annotation of a mortgage lien, and, suspiciously, GHI did not intervene in the long drawn-out labor proceedings to protect its right as a mortgagee of virtually all the properties of MMC.29 The CA further ruled that the subsequent foreclosure of the mortgage was irregular, effected precisely to prevent the satisfaction of the judgment against MMC. It noted that the foreclosure proceedings were initiated in July 2001, shortly after the issuance of the Brion Writ; and, more importantly, the basis for the extrajudicial foreclosure was not the failure of MMC to pay the mortgage debt, but its failure "to satisfy any money judgment against it rendered by a court or tribunal of competent jurisdiction, in favor of any person, firm or entity, without any legal ground or reason."30 Further, the CA pierced the veil of corporate fiction of the two corporations.31 The dispositive portion of the appellate court’s decision reads: WHEREFORE, in view of the foregoing considerations, the petition is GRANTED. The October 17, 2002 and the December 4, 2002 Order of the RTC, Branch 61 of Kabankalan City, Negros Occidental are hereby ANNULLED and SET ASIDE for having been issued in excess or without authority. The Writ of Preliminary Injunction issued by the said court is lifted, and the DOLE Sheriff is directed to immediately enforce the Writ of Execution issued by the Department of Labor and Employment in the case "In re: Labor Dispute in Maricalum Mining Corporation" docketed as OS-AJ-10-96-01 (NCMB-RB6-08-96).32 The Issues Dissatisfied, GHI elevated the case to this Court via the instant petition for review on certiorari, raising the following issues: I WHETHER OR NOT GHI IS A PARTY TO THE LABOR DISPUTE BETWEEN NAMAWU AND MMC. II WHETHER OR NOT, ASSUMING ARGUENDO THAT THE PERTINENT DECISION OR ORDER IN THE SAID LABOR DISPUTE BETWEEN MMC AND NAMAWU MAY BE ENFORCED AGAINST GHI, THERE IS ALREADY A FINAL DEETERMINATION BY THE SUPREME COURT OF THE RIGHTS OF THE PARTIES IN SAID LABOR DISPUTE CONSIDERING THE PENDENCY OF G.R. NOS. 157696-97. III WHETHER OR NOT GHI IS THE ABSOLUTE OWNER OF THE PROPERTIES UNLAWFULLY GARNISHED BY RESPONDENTS SHERIFFS.

IV WHETHER OR NOT THE HONORABLE HENRY D. ARLES CORRECTLY ISSUED A WRIT OF INJUNCTION AGAINST THE UNLAWFUL EXECUTIOIN ON GHI’S PROPERTIES. V WHETHER OR NOT THE VALIDITY OF THE DEED OF REAL AND CHATTEL MORTGAGE OVER THE SUBJECT PROPERTIES BETWEEN MMC AND GHI MAY BE COLLATERALLY ATTACKED. VI WHETHER OR NOT, ASSUMING ARGUENDO THAT THE VALIDITY OF THE SAID REAL AND CHATTEL MORTGAGE MAY BE COLLATERALLY ATTACKED, THE SAID MORTGAGE IS SHAM, FICTITIOUS AND FRAUDULENT. VII WHETHER OR NOT GHI IS A DISTINCT AND SEPARATE CORPORATE ENTITY FROM MMC. VIII WHETHER OR NOT GHI CAN BE PREVENTED THROUGH THE ISSUANCE OF A RESTRAINING ORDER OR INJUNCTION FROM TAKING POSSESSION OR BE DISPOSSESSED OF ASSETS PURCHASED BY IT FROM APT.33 Stripped of non-essentials, the core issue is whether, given the factual circumstances obtaining, the RTC properly issued the writ of injunction to prevent the enforcement of the Sto. Tomas Writ. The resolution of this principal issue, however, will necessitate a ruling on the following key and interrelated questions: 1. Whether the mortgage of the MMC’s properties to GHI was a sham; 2. Whether there was an effective levy by the DOLE upon the MMC’s real and personal properties; and 3. Whether it was proper for the CA to pierce the veil of corporate fiction between MMC and GHI. Our Ruling Before we delve into an extended discussion of the foregoing issues, it is essential to take judicial cognizance of cases intimately linked to the present controversy which had earlier been elevated to and decided by this Court. Judicial Notice. Judicial notice must be taken by this Court of its Decision in Maricalum Mining Corporation v. Hon. Arturo D. Brion and NAMAWU,34 in which we upheld the right of herein private respondent, NAMAWU, to its labor claims. Upon the same principle of judicial notice, we acknowledge our Decision in Republic of the Philippines, through its trustee, the Asset Privatization Trust v. "G" Holdings, Inc.,35 in which GHI was recognized as the rightful purchaser of the shares of stocks of MMC, and thus, entitled to the delivery of the company notes accompanying the said purchase. These company notes, consisting of three (3) Promissory Notes, were part of the documents executed in 1992 in the privatization sale of MMC by the Asset Privatization Trust (APT) to GHI. Each of these notes uniformly contains stipulations "establishing and constituting in favor of GHI" mortgages over MMC’s real and personal properties. The stipulations were subsequently formalized in a separate document denominated Deed of Real Estate and Chattel Mortgage on September 5, 1996. Thereafter, the Deed was registered on February 4, 2000.36 We find both decisions critically relevant to the instant dispute. In fact, they should have guided the courts below in the disposition of the controversy at their respective levels. To repeat, these decisions respectively confirm the right of NAMAWU to its labor claims37 and affirm the right of GHI to its financial and mortgage claims over the real and personal properties of MMC, as will be explained below. The assailed CA decision apparently failed to consider the impact of these two decisions on the case at bar. Thus, we find it timely to reiterate that: "courts have also taken judicial notice of previous cases to determine whether or not the case pending is a moot one or whether or not a previous ruling is applicable to the case under consideration."38 However, the CA correctly assessed that the authority of the lower court to issue the challenged writ of injunction depends on the validity of the third party’s (GHI’s) claim of ownership over the property subject of the writ of execution issued by the labor department. Accordingly, the main inquiry addressed by the CA decision was whether GHI could be treated as a third party or a

stranger to the labor dispute, whose properties were beyond the reach of the Writ of Execution dated December 18, 2001.39 In this light, all the more does it become imperative to take judicial notice of the two cases aforesaid, as they provide the necessary perspective to determine whether GHI is such a party with a valid ownership claim over the properties subject of the writ of execution. In Juaban v. Espina,40 we held that "in some instances, courts have also taken judicial notice of proceedings in other cases that are closely connected to the matter in controversy. These cases may be so closely interwoven, or so clearly interdependent, as to invoke a rule of judicial notice." The two cases that we have taken judicial notice of are of such character, and our review of the instant case cannot stray from the findings and conclusions therein. Having recognized these crucial Court rulings, situating the facts in proper perspective, we now proceed to resolve the questions identified above. The mortgage was not a sham. Republic etc., v. "G" Holdings, Inc. acknowledged the existence of the Purchase and Sale Agreement between the APT and the GHI, and recounts the facts attendant to that transaction, as follows: The series of negotiations between the petitioner Republic of the Philippines, through the APT as its trustee, and "G" Holdings culminated in the execution of a purchase and sale agreement on October 2, 1992. Under the agreement, the Republic undertook to sell and deliver 90% of the entire issued and outstanding shares of MMC, as well as its company notes, to "G" Holdings in consideration of the purchase price of P673,161,280. It also provided for a down payment of P98,704,000 with the balance divided into four tranches payable in installment over a period of ten years."41 The "company notes" mentioned therein were actually the very same three (3) Promissory Notes amounting toP550M, issued by MMC in favor of GHI. As already adverted to above, these notes uniformly contained stipulations "establishing and constituting" mortgages over MMC’s real and personal properties. It may be remembered that APT acquired the MMC from the PNB and the DBP. Then, in compliance with its mandate to privatize government assets, APT sold the aforesaid MMC shares and notes to GHI. To repeat, this Court has recognized this Purchase and Sale Agreement in Republic, etc., v. "G" Holdings, Inc. The participation of the Government, through APT, in this transaction is significant. Because the Government had actively negotiated and, eventually, executed the agreement, then the transaction is imbued with an aura of official authority, giving rise to the presumption of regularity in its execution. This presumption would cover all related transactional acts and documents needed to consummate the privatization sale, inclusive of the Promissory Notes. It is obvious, then, that the Government, through APT, consented to the "establishment and constitution" of the mortgages on the assets of MMC in favor of GHI, as provided in the notes. Accordingly, the notes (and the stipulations therein) enjoy the benefit of the same presumption of regularity accorded to government actions. Given the Government consent thereto, and clothed with the presumption of regularity, the mortgages cannot be characterized as sham, fictitious or fraudulent. Indeed, as mentioned above, the three (3) Promissory Notes, executed on October 2, 1992, "established and constituted" in favor of GHI the following mortgages: 1. A mortgage over certain parcels of land, more particularly listed and described in the Sheriff’s Certificate of Sale dated September 7, 1984 issued by the Ex-Officio Provincial Sheriff of Negros Occidental, Rolando V. Ramirez, with office at Bacolod City following the auction sale conducted pursuant to the provisions of Act 3135, a copy of which certificate of sale is hereto attached as Annex "A" and made an integral part hereof; 2. A chattel mortgage over assets and personal properties more particularly listed and described in the Sheriff’s Certificate of Sale dated September 7, 1984 issued by the Ex-Officio Provincial Sheriff of Negros Occidental, Rolando V. Ramirez, with office at Bacolod City following the auction conducted pursuant to the provision of Act 1508, a copy of which Certificate of Sale is hereto attached as Annex "B" and made an integral part hereof.

3. Mortgages over assets listed in APT Specific catalogue GC-031 for MMC, a copy of which Catalogue is hereby made an integral part hereof by way of reference, as well as assets presently in use by MMC but which are not listed or included in paragraphs 1 and 2 above and shall include all assets that may hereinafter be acquired by MMC.42 It is difficult to conceive that these mortgages, already existing in 1992, almost four (4) years before NAMAWU filed its notice of strike, were a "fictitious" arrangement intended to defraud NAMAWU. After all, they were agreed upon long before the seeds of the labor dispute germinated. While it is true that the Deed of Real Estate and Chattel Mortgage was executed only on September 5, 1996, it is beyond cavil that this formal document of mortgage was merely a derivative of the original mortgage stipulations contained in the Promissory Notes of October 2, 1992. The execution of this Deed in 1996 does not detract from, but instead reinforces, the manifest intention of the parties to "establish and constitute" the mortgages on MMC’s real and personal properties. Apparently, the move to execute a formal document denominated as the Deed of Real Estate and Chattel Mortgage came about after the decision of the RTC of Manila in Civil Case No. 95-76132 became final in mid-1996. This conclusion surfaces when we consider the genesis of Civil Case No. 95-76132 and subsequent incidents thereto, as narrated in Republic, etc. v. "G" Holdings, Inc., viz: Subsequently, a disagreement on the matter of when installment payments should commence arose between the parties. The Republic claimed that it should be on the seventh month from the signing of the agreement while "G" Holdings insisted that it should begin seven months after the fulfillment of the closing conditions. Unable to settle the issue, "G" Holdings filed a complaint for specific performance and damages with the Regional Trial Court of Manila, Branch 49, against the Republic to compel it to close the sale in accordance with the purchase and sale agreement. The complaint was docketed as Civil Case No. 95-76132. During the pre-trial, the respective counsels of the parties manifested that the issue involved in the case was one of law and submitted the case for decision. On June 11, 1996, the trial court rendered its decision. It ruled in favor of "G" Holdings and held: "In line with the foregoing, this Court having been convinced that the Purchase and Sale Agreement is indeed subject to the final closing conditions prescribed by Stipulation No. 5.02 and conformably to Rule 39, Section 10 of the Rules of Court, accordingly orders that the Asset Privatization Trust execute the corresponding Document of Transfer of the subject shares and financial notes and cause the actual delivery of subject shares and notes to "G" Holdings, Inc., within a period of thirty (30) days from receipt of this Decision,and after "G" Holdings Inc., shall have paid in full the entire balance, at its present value of P241,702,122.86, computed pursuant to the prepayment provisions of the Agreement. Plaintiff shall pay the balance simultaneously with the delivery of the Deed of Transfer and actual delivery of the shares and notes. SO ORDERED." The Solicitor General filed a notice of appeal on behalf of the Republic on June 28, 1996. Contrary to the rules of procedure, however, the notice of appeal was filed with the Court of Appeals (CA), not with the trial court which rendered the judgment appealed from. No other judicial remedy was resorted to until July 2, 1999 when the Republic, through the APT, filed a petition for annulment of judgment with the CA. It claimed that the decision should be annulled on the ground of abuse of discretion amounting to lack of jurisdiction on the part of the trial court. x x x Finding that the grounds necessary for the annulment of judgment were inexistent, the appellate court dismissed the petition. x x x x43 With the RTC decision having become final owing to the failure of the Republic to perfect an appeal, it may have become necessary to execute the Deed of Real Estate and Chattel Mortgage on September 5, 1996, in order to enforce the trial court’s decision of June 11, 1996. This appears to be the most plausible explanation for the execution of the Deed of Real Estate and Chattel Mortgage only in September 1996. Even as the parties had already validly constituted the mortgages in 1992, as explicitly provided in the Promissory Notes, a specific deed of mortgage in a separate document may have been deemed necessary for registration purposes. Obviously, this

explanation is more logical and more sensible than the strained conjecture that the mortgage was executed on September 5, 1996 only for the purpose of defrauding NAMAWU. It is undeniable that the Deed of Real Estate and Chattel Mortgage was formally documented two weeks after NAMAWU filed its notice of strike against MMC on August 23, 1996. However, this fact alone cannot give rise to an adverse inference for two reasons. First, as discussed above, the mortgages had already been "established and constituted" as early as October 2, 1992 in the Promissory Notes, showing the clear intent of the parties to impose a lien upon MMC’s properties. Second, the mere filing of a notice of strike by NAMAWU did not, as yet, vest in NAMAWU any definitive right that could be prejudiced by the execution of the mortgage deed. The fact that MMC’s obligation to GHI is not reflected in the former’s financial statements─a circumstance made capital of by NAMAWU in order to cast doubt on the validity of the mortgage deed─is of no moment. By itself, it does not provide a sufficient basis to invalidate this public document. To say otherwise, and to invalidate the mortgage deed on this pretext, would furnish MMC a convenient excuse to absolve itself of its mortgage obligations by adopting the simple strategy of not including the obligations in its financial statements. It would ignore our ruling in Republic, etc. v. "G" Holdings, Inc., which obliged APT to deliver the MMC shares and financial notes to GHI. Besides, the failure of the mortgagor to record in its financial statements its loan obligations is surely not an essential element for the validity of mortgage agreements, nor will it independently affect the right of the mortgagee to foreclose. Contrary to the CA decision, Tanongon v. Samson44 is not "on all fours" with the instant case. There are material differences between the two cases. At issue in Tanongon was a third-party claim arising from a Deed of Absolute Sale executed between Olizon and Tanongon on July 29, 1997, after the NLRC decision became final and executory on April 29, 1997. In the case at bar, what is involved is a loan with mortgage agreement executed on October 2, 1992, well ahead of the union’s notice of strike on August 23, 1996. No presumption of regularity inheres in the deed of sale in Tanongon, while the participation of APT in this case clothes the transaction in 1992 with such a presumption that has not been successfully rebutted. In Tanongon, the conduct of a full-blown trial led to the finding─duly supported by evidence─that the voluntary sale of the assets of the judgment debtor was madein bad faith. Here, no trial was held, owing to the motion to dismiss filed by NAMAWU, and the CA failed to consider the factual findings made by this Court in Republic, etc. v. "G" Holdings, Inc. Furthermore, in Tanongon,the claimant did not exercise his option to file a separate action in court, thus allowing the NLRC Sheriff to levy on execution and to determine the rights of third-party claimants.45 In this case, a separate action was filed in the regular courts by GHI, the third-party claimant. Finally, the questioned transaction in Tanongon was a plain, voluntary transfer in the form of a sale executed by the judgment debtor in favor of a dubious third-party, resulting in the inability of the judgment creditor to satisfy the judgment. On the other hand, this case involves an involuntary transfer (foreclosure of mortgage) arising from a loan obligation that well-existed long before the commencement of the labor claims of the private respondent. Three other circumstances have been put forward by the CA to support its conclusion that the mortgage contract is a sham. First, the CA considered it highly suspect that the Deed of Real Estate and Chattel Mortgage was registered only on February 4, 2000, "three years after its execution, and almost one month after the Supreme Court rendered its decision in the labor dispute."46 Equally suspicious, as far as the CA is concerned, is the fact that the mortgages were foreclosed on July 31, 2001, after the DOLE had already issued a Partial Writ of Execution on May 9, 2001.47 To the appellate court, the timing of the registration of the mortgage deed was too coincidental, while the date of the foreclosure signified that it was "effected precisely to prevent the satisfaction of the judgment awards."48 Furthermore, the CA found that the mortgage deed itself was executed without any consideration, because at the time of its execution, all the assets of MMC had already been transferred to GHI.49 These circumstances provided the CA with sufficient justification to apply Article 1387 of the Civil Code on presumed fraudulent transactions, and to declare that the mortgage deed was void for being simulated and fictitious.50

We do not agree. We find this Court’s ruling in MR Holdings, Ltd. v. Sheriff Bajar51 pertinent and instructive: Article 1387 of the Civil Code of the Philippines provides: "Art. 1387. All contracts by virtue of which the debtor alienates property by gratuitous title are presumed to have been entered into in fraud of creditors, when the donor did not reserve sufficient property to pay all debts contracted before the donation. Alienations by onerous title are also presumed fraudulent when made by persons against whom some judgment has been rendered in any instance or some writ of attachment has been issued. The decision or attachment need not refer to the property alienated, and need not have been obtained by the party seeking rescission. In addition to these presumptions, the design to defraud creditors may be proved in any other manner recognized by law and of evidence." This article presumes the existence of fraud made by a debtor. Thus, in the absence of satisfactory evidence to the contrary, an alienation of a property will be held fraudulent if it is made after a judgment has been rendered against the debtor making the alienation. This presumption of fraud is not conclusive and may be rebutted by satisfactory and convincing evidence. All that is necessary is to establish affirmatively that the conveyance is made in good faith and for a sufficient and valuable consideration. The "Assignment Agreement" and the "Deed of Assignment" were executed for valuable considerations. Patent from the "Assignment Agreement" is the fact that petitioner assumed the payment of US$18,453,450.12 to ADB in satisfaction of Marcopper’s remaining debt as of March 20, 1997. Solidbank cannot deny this fact considering that a substantial portion of the said payment, in the sum of US$13,886,791.06, was remitted in favor of the Bank of Nova Scotia, its major stockholder. The facts of the case so far show that the assignment contracts were executed in good faith. The execution of the "Assignment Agreement" on March 20, 1997 and the "Deed of Assignment" on December 8,1997 is not the alphaof this case. While the execution of these assignment contracts almost coincided with the rendition on May 7, 1997 of the Partial Judgment in Civil Case No. 96-80083 by the Manila RTC, however, there was no intention on the part of petitioner to defeat Solidbank’s claim. It bears reiterating that as early as November 4, 1992, Placer Dome had already bound itself under a "Support and Standby Credit Agreement" to provide Marcopper with cash flow support for the payment to ADB of its obligations. When Marcopper ceased operations on account of disastrous mine tailings spill into the Boac River and ADB pressed for payment of the loan, Placer Dome agreed to have its subsidiary, herein petitioner, pay ADB the amount of US$18,453,450.12. Thereupon, ADB and Marcopper executed, respectively, in favor of petitioner an "Assignment Agreement" and a "Deed of Assignment." Obviously, the assignment contracts were connected with transactions that happened long before the rendition in 1997 of the Partial Judgment in Civil Case No. 96-80083 by the Manila RTC. Those contracts cannot be viewed in isolation. If we may add, it is highly inconceivable that ADB, a reputable international financial organization, will connive with Marcopper to feign or simulate a contract in 1992 just to defraud Solidbank for its claim four years thereafter. And it is equally incredible for petitioner to be paying the huge sum of US$18,453,450.12 to ADB only for the purpose of defrauding Solidbank of the sum ofP52,970,756.89. It is said that the test as to whether or not a conveyance is fraudulent is ― does it prejudice the rights of creditors? We cannot see how Solidbank’s right was prejudiced by the assignment contracts considering that substantially all of Marcopper’s properties were already covered by the registered "Deed of Real Estate and Chattel Mortgage" executed by Marcopper in favor of ADB as early as November 11, 1992. As such, Solidbank cannot assert a better right than ADB, the latter being a preferred creditor. It is basic that mortgaged properties answer primarily for the mortgaged credit, not for the judgment credit of the mortgagor’s unsecured creditor. Considering that petitioner assumed Marcopper’s debt to ADB, it follows that Solidbank’s right as judgment creditor over the subject properties must give way to that of the former.52

From this ruling in MR Holdings, we can draw parallel conclusions. The execution of the subsequent Deed of Real Estate and Chattel Mortgage on September 5, 1996 was simply the formal documentation of what had already been agreed in the seminal transaction (the Purchase and Sale Agreement) between APT and GHI. It should not be viewed in isolation, apart from the original agreement of October 2, 1992. And it cannot be denied that this original agreement was supported by an adequate consideration. The APT was even ordered by the court to deliver the shares and financial notes of MMC in exchange for the payments that GHI had made. It was also about this time, in 1996, that NAMAWU filed a notice of strike to protest non-payment of its rightful labor claims.53 But, as already mentioned, the outcome of that labor dispute was yet unascertainable at that time, and NAMAWU could only have hoped for, or speculated about, a favorable ruling. To paraphrase MR Holdings, we cannot see how NAMAWU’s right was prejudiced by the Deed of Real Estate and Chattel Mortgage, or by its delayed registration, when substantially all of the properties of MMC were already mortgaged to GHI as early as October 2, 1992. Given this reality, the Court of Appeals had no basis to conclude that this Deed of Real Estate and Chattel Mortgage, by reason of its late registration, was a simulated or fictitious contract. The importance of registration and its binding effect is stated in Section 51 of the Property Registration Decree or Presidential Decree (P.D.) No. 1529,54 which reads: SECTION 51. Conveyance and other dealings by registered owner.—An owner of registered land may convey, mortgage, lease, charge or otherwise deal with the same in accordance with existing laws. He may use such forms, deeds, mortgages, leases or other voluntary instrument as are sufficient in law. But no deed, mortgage, lease or other voluntary instrument, except a will purporting to convey or effect registered land, shall take effect as a conveyance or bind the land, but shall operate only as a contract between the parties and as evidence of authority to the Registry of Deeds to make registration. The act of registration shall be the operative act to convey or affect the land insofar as third persons are concerned, and in all cases under this Decree, the registration shall be made in the Office of the Register of Deeds for the province or the city where the land lies.55 Under the Torrens system, registration is the operative act which gives validity to the transfer or creates a lien upon the land. Further, entrenched in our jurisdiction is the doctrine that registration in a public registry creates constructive notice to the whole world.56 Thus, Section 51 of Act No. 496, as amended by Section 52 of P.D. No. 1529, provides: SECTION 52. Constructive notice upon registration.—Every conveyance, mortgage, lease, lien, attachment, order, judgment, instrument or entry affecting registered land shall, if registered, filed or entered in the Office of the Register of Deeds for the province or city where the land to which it relates lies, be constructive notice to all persons from the time of such registering, filing or entering. But, there is nothing in Act No. 496, as amended by P.D. No. 1529, that imposes a period within which to register annotations of "conveyance, mortgage, lease, lien, attachment, order, judgment, instrument or entry affecting registered land." If liens were not so registered, then it "shall operate only as a contract between the parties and as evidence of authority to the Registry of Deeds to make registration." If registered, it "shall be the operative act to convey or affect the land insofar as third persons are concerned." The mere lapse of time from the execution of the mortgage document to the moment of its registration does not affect the rights of a mortgagee. Neither will the circumstance of GHI’s foreclosure of MMC’s properties on July 31, 2001, or after the DOLE had already issued a Partial Writ of Execution on May 9, 2001 against MMC, support the conclusion of the CA that GHI’s act of foreclosing on MMC’s properties was "effected to prevent satisfaction of the judgment award." GHI’s mortgage rights, constituted in 1992, antedated the Partial Writ of Execution by nearly ten (10) years. GHI’s resort to foreclosure was a legitimate enforcement of a right to liquidate a bona fide debt. It was a reasonable option open to a mortgagee which, not being a party to the labor dispute between NAMAWU and MMC, stood to suffer a loss if it did not avail itself of the remedy of foreclosure. The well-settled rule is that a mortgage lien is inseparable from the property mortgaged.57 While it is true that GHI’s foreclosure of MMC’s mortgaged properties may have had the "effect to prevent

satisfaction of the judgment award against the specific mortgaged property that first answers for a mortgage obligation ahead of any subsequent creditors," that same foreclosure does not necessarily translate to having been "effected to prevent satisfaction of the judgment award" against MMC. Likewise, we note the narration of subsequent facts contained in the Comment of the Office of the Solicitor General. Therein, it is alleged that after the Partial Writ of Execution was issued on May 9, 2001, a motion for reconsideration was filed by MMC; that the denial of the motion was appealed to the CA; that when the appeal was dismissed by the CA on January 24, 2002, it eventually became the subject of a review petition before this Court, docketed as G.R. No. 157696; and that G.R. No. 157696 was decided by this Court only on February 9, 2006. This chronology of subsequent events shows that February 9, 2006 would have been the earliest date for the unimpeded enforcement of the Partial Writ of Execution, as it was only then that this Court resolved the issue. This happened four and a half years after July 31, 2001, the date when GHI foreclosed on the mortgaged properties. Thus, it is not accurate to say that the foreclosure made on July 31, 2001 was "effected [only] to prevent satisfaction of the judgment award." We also observe the error in the CA’s finding that the 1996 Deed of Real Estate and Chattel Mortgage was not supported by any consideration since at the time the deed was executed, "all the real and personal property of MMC had already been transferred in the hands of G Holdings."58 It should be remembered that the Purchase and Sale Agreement between GHI and APT involved large amounts (P550M) and even spawned a subsequent court action (Civil Case No. 95-76132, RTC of Manila). Yet, nowhere in the Agreement or in the RTC decision is there any mention of real and personal properties of MMC being included in the sale to GHI in 1992. These properties simply served as mortgaged collateral for the 1992 Promissory Notes.59 The Purchase and Sale Agreement and the Promissory Notes themselves are the best evidence that there was ample consideration for the mortgage. Thus, we must reject the conclusion of the CA that the Deed of Real Estate and Chattel Mortgage executed in 1996 was a simulated transaction. On the issue of whether there had been an effective levy upon the properties of GHI. The well-settled principle is that the rights of a mortgage creditor over the mortgaged properties are superior to those of a subsequent attaching creditor. In Cabral v. Evangelista,60 this Court declared that: Defendants-appellants purchase of the mortgaged chattels at the public sheriff's sale and the delivery of the chattels to them with a certificate of sale did not give them a superior right to the chattels as against plaintiffs-mortgagees. Rule 39, Section 22 of the old Rules of Court (now Rule 39, Section 25 of the Revised Rules), cited by appellants precisely provides that "the sale conveys to the purchaser all the right which the debtor had in such property on the day the execution or attachment was levied." It has long been settled by this Court that "The right of those who so acquire said properties should not and can not be superior to that of the creditor who has in his favor an instrument of mortgage executed with the formalities of the law, in good faith, and without the least indication of fraud. This is all the more true in the present case, because, when the plaintiff purchased the automobile in question on August 22, 1933, he knew, or at least, it is presumed that he knew, by the mere fact that the instrument of mortgage, Exhibit 2, was registered in the office of the register of deeds of Manila, that said automobile was subject to a mortgage lien. In purchasing it, with full knowledge that such circumstances existed, it should be presumed that he did so, very much willing to respect the lien existing thereon, since he should not have expected that with the purchase, he would acquire a better right than that which the vendor then had." In another case between two mortgagees, we held that "As between the first and second mortgagees, therefore, the second mortgagee has at most only the right to redeem, and even when the second mortgagee goes through the formality of an extrajudicial foreclosure, the purchaser acquires no more than the right of redemption from the first mortgagee." The superiority of the mortgagee's lien over that of a subsequent judgment creditor is now expressly provided in Rule 39, Section 16 of the Revised Rules of Court, which states with regard to the effect of levy on execution as to third persons that "The levy on execution shall create a lien in favor of

the judgment creditor over the right, title and interest of the judgment debtor in such property at the time of the levy, subject to liens or encumbrances then existing." Even in the matter of possession, mortgagees over chattel have superior, preferential and paramount rights thereto, and the mortgagor has mere rights of redemption.61 Similar rules apply to cases of mortgaged real properties that are registered. Since the properties were already mortgaged to GHI, the only interest remaining in the mortgagor was its right to redeem said properties from the mortgage. The right of redemption was the only leviable or attachable property right of the mortgagor in the mortgaged real properties. We have held that — The main issue in this case is the nature of the lien of a judgment creditor, like the petitioner, who has levied an attachment on the judgment debtor's (CMI) real properties which had been mortgaged to a consortium of banks and were subsequently sold to a third party, Top Rate. x x x x The sheriff's levy on CMI's properties, under the writ of attachment obtained by the petitioner, was actually a levy on the interest only of the judgment debtor CMI on those properties. Since the properties were already mortgaged to the consortium of banks, the only interest remaining in the mortgagor CMI was its right to redeem said properties from the mortgage. The right of redemption was the only leviable or attachable property right of CMI in the mortgaged real properties. The sheriff could not have attached the properties themselves, for they had already been conveyed to the consortium of banks by mortgage (defined as a "conditional sale"), so his levy must be understood to have attached only the mortgagor's remaining interest in the mortgaged property — the right to redeem it from the mortgage.62 x x x x There appears in the record a factual contradiction relating to whether the foreclosure by GHI on July 13, 200163over some of the contested properties came ahead of the levy thereon, or the reverse. NAMAWU claims that the levy on two trucks was effected on June 22, 2001,64 which GHI disputes as a misstatement because the levy was attempted on July 18, 2002, and not 200165 What is undisputed though is that the mortgage of GHI was registered on February 4, 2000,66 well ahead of any levy by NAMAWU. Prior registration of a lien creates a preference, as the act of registration is the operative act that conveys and affects the land,67 even against subsequent judgment creditors, such as respondent herein. Its registration of the mortgage was not intended to defraud NAMAWU of its judgment claims, since even the courts were already judicially aware of its existence since 1992. Thus, at that moment in time, with the registration of the mortgage, either NAMAWU had no properties of MMC to attach because the same had been previously foreclosed by GHI as mortgagee thereof; or by virtue of the DOLE’s levy to enforce NAMAWU’s claims, the latter’s rights are subject to the notice of the foreclosure on the subject properties by a prior mortgagee’s right. GHI’s mortgage right had already been registered by then, and "it is basic that mortgaged properties answer primarily for the mortgaged credit, not for the judgment credit of the mortgagor’s unsecured creditor."68 On the issue of piercing the veil of corporate fiction. The CA found that: "Ordinarily, the interlocking of directors and officers in two different corporations is not a conclusive indication that the corporations are one and the same for purposes of applying the doctrine of piercing the veil of corporate fiction. However, when the legal fiction of the separate corporate personality is abused, such as when the same is used for fraudulent or wrongful ends, the courts have not hesitated to pierce the corporate veil (Francisco vs. Mejia, 362 SCRA 738). In the case at bar, the Deed of Real Estate and Chattel Mortgage was entered into between MMC and G Holdings for the purpose of evading the satisfaction of the legitimate claims of the petitioner against MMC. The notion of separate personality is clearly being utilized by the two corporations to perpetuate the violation of a positive legal duty arising from a final judgment to the prejudice of the petitioner’s right."69 Settled jurisprudence70 has it that – "(A) corporation, upon coming into existence, is invested by law with a personality separate and distinct from those persons composing it as well as from any other legal entity to which it may be

related. By this attribute, a stockholder may not, generally, be made to answer for acts or liabilities of the said corporation, and vice versa. This separate and distinct personality is, however, merely a fiction created by law for convenience and to promote the ends of justice. For this reason, it may not be used or invoked for ends subversive to the policy and purpose behind its creation or which could not have been intended by law to which it owes its being. This is particularly true when the fiction is used to defeat public convenience, justify wrong, protect fraud, defend crime, confuse legitimate legal or judicial issues, perpetrate deception or otherwise circumvent the law. This is likewise true where the corporate entity is being used as an alter ego, adjunct, or business conduit for the sole benefit of the stockholders or of another corporate entity. In all these cases, the notion of corporate entity will be pierced or disregarded with reference to the particular transaction involved. Given this jurisprudential principle and the factual circumstances obtaining in this case, we now ask: Was the CA correct in piercing the veil of corporate identity of GHI and MMC? In our disquisition above, we have shown that the CA’s finding that there was a "simulated mortgage" between GHI and MMC to justify a wrong or protect a fraud has struggled vainly to find a foothold when confronted with the ruling of this Court in Republic v. "G" Holdings, Inc. The negotiations between the GHI and the Government--through APT, dating back to 1992--culminating in the Purchase and Sale Agreement, cannot be depicted as a contrived transaction. In fact, in the said Republic, etc., v. "G" Holdings, Inc., this Court adjudged that GHI was entitled to its rightful claims─ not just to the shares of MMC itself, or just to the financial notes that already contained the mortgage clauses over MMCs disputed assets, but also to the delivery of those instruments. Certainly, we cannot impute to this Court’s findings on the case any badge of fraud. Thus, we reject the CA’s conclusion that it was right to pierce the veil of corporate fiction, because the foregoing circumstances belie such an inference. Furthermore, we cannot ascribe to the Government, or the APT in particular, any undue motive to participate in a transaction designed to perpetrate fraud. Accordingly, we consider the CA interpretation unwarranted. We also cannot agree that the presumption of fraud in Article 1387 of the Civil Code relative to property conveyances, when there was already a judgment rendered or a writ of attachment issued, authorizes piercing the veil of corporate identity in this case. We find that Article 1387 finds less application to an involuntary alienation such as the foreclosure of mortgage made before any final judgment of a court. We thus hold that when the alienation is involuntary, and the foreclosure is not fraudulent because the mortgage deed has been previously executed in accordance with formalities of law, and the foreclosure is resorted to in order to liquidate a bona fide debt, it is not the alienation by onerous title contemplated in Article 1387 of the Civil Code wherein fraud is presumed. Since the factual antecedents of this case do not warrant a finding that the mortgage and loan agreements between MMC and GHI were simulated, then their separate personalities must be recognized. To pierce the veil of corporate fiction would require that their personalities as creditor and debtor be conjoined, resulting in a merger of the personalities of the creditor (GHI) and the debtor (MMC) in one person, such that the debt of one to the other is thereby extinguished. But the debt embodied in the 1992 Financial Notes has been established, and even made subject of court litigation (Civil Case No. 95-76132, RTC Manila). This can only mean that GHI and MMC have separate corporate personalities. Neither was MMC used merely as an alter ego, adjunct, or business conduit for the sole benefit of GHI, to justify piercing the former’s veil of corporate fiction so that the latter could be held liable to claims of third-party judgment creditors, like NAMAWU. In this regard, we find American jurisprudence persuasive. In a decision by the Supreme Court of New York71 bearing upon similar facts, the Court denied piercing the veil of corporate fiction to favor a judgment creditor who sued the parent corporation of the debtor, alleging fraudulent corporate asset-shifting effected after a prior final judgment. Under a factual background largely resembling this case at bar, viz: In this action, plaintiffs seek to recover the balance due under judgments they obtained against Lake George Ventures Inc. (hereinafter LGV), a subsidiary of defendant that was formed to develop the Top O’ the World resort community overlooking Lake George, by piercing the corporate veil or

upon the theory that LGV's transfer of certain assets constituted fraudulent transfers under the Debtor and Creditor Law. We previously upheld Supreme Court's denial of defendant's motion for summary judgment dismissing the complaint (252 A.D.2d 609, 675 N.Y.S.2d 234) and the matter proceeded to a nonjury trial. Supreme Court thereafter rendered judgment in favor of defendant upon its findings that, although defendant dominated LGV, it did not use that domination to commit a fraud or wrong on plaintiffs. Plaintiffs appealed.1avvphi1 The trial evidence showed that LGV was incorporated in November 1985. Defendant's principal, Francesco Galesi, initially held 90% of the stock and all of the stock was ultimately transferred to defendant. Initial project funding was provided through a $2.5 million loan from Chemical Bank, secured by defendant's guarantee of repayment of the loan and completion of the project. The loan proceeds were utilized to purchase the real property upon which the project was to be established. Chemical Bank thereafter loaned an additional $3.5 million to LGV, again guaranteed by defendant, and the two loans were consolidated into a first mortgage loan of $6 million. In 1989, the loan was modified by splitting the loan into a $1.9 term note on which defendant was primary obligor and a $4.1 million project note on which LGV was the obligor and defendant was a guarantor. Due to LGV's lack of success in marketing the project's townhouses and in order to protect itself from the exercise of Chemical Bank's enforcement remedies, defendant was forced to make monthly installments of principal and interest on LGV's behalf. Ultimately, defendant purchased the project note from Chemical Bank for $3.1 million, paid the $1.5 million balance on the term note and took an assignment of the first mortgage on the project's realty. After LGV failed to make payments on the indebtedness over the course of the succeeding two years, defendant brought an action to foreclose its mortgage. Ultimately, defendant obtained a judgment of foreclosure and sale in the amount of $6,070,246.50. Defendant bid in the property at the foreclosure sale and thereafter obtained a deficiency judgment in the amount of $3,070,246.50. Following the foreclosure sale, LGV transferred to defendant all of the shares of Top of the World Water Company, a separate entity that had been organized to construct and operate the water supply and delivery system for the project, in exchange for a $950,000 reduction in the deficiency judgment. the U.S. Supreme Court of New York held— Based on the foregoing, and accepting that defendant exercised complete domination and control over LGV, we are at a loss as to how plaintiffs perceive themselves to have been inequitably affected by defendant's foreclosure action against LGV, by LGV's divestiture of the water company stock or the sports complex property, or by defendant's transfer to LGV of a third party's uncollectible note, accomplished solely for tax purposes. It is undisputed that LGV was, and for some period of time had been, unable to meet its obligations and, at the time of the foreclosure sale, liens against its property exceeded the value of its assets by several million dollars, even including the water company and sports complex at the values plaintiffs would assign to them. In fact, even if plaintiffs' analysis were utilized to eliminate the entire $3 million deficiency judgment, the fact remains that subordinate mortgages totaling nearly an additional $2 million have priority over plaintiffs' judgments. As properly concluded by Supreme Court, absent a finding of any inequitable consequence to plaintiffs, both causes of action pleaded in the amended complaint must fail. Fundamentally, a party seeking to pierce the corporate veil must show complete domination and control of the subsidiary by the parent and also that such domination was used to commit a fraud or wrong against the plaintiff that resulted in the plaintiff's injury ( 252 A.D.2d 609, 610, 675 N.Y.S.2d 234, supra; see, Matter of Morris v. New York State Dept. of Taxation & Fin., 82 N.Y.2d 135, 141, 603 N.Y.S.2d 807, 623 N.E.2d 1157). Notably, "[e]vidence of domination alone does not suffice without an additional showing that it led to inequity, fraud or malfeasance" (TNS Holdings v. MKI Sec. Corp., 92 N.Y.2d 335, 339, 680 N.Y.S.2d 891, 703 N.E.2d 749). x x x x In reaching that conclusion, we specifically reject a number of plaintiffs' assertions, including the entirely erroneous claims that our determination on the prior appeal (252 A.D.2d 609, 675 N.Y.S.2d

234, supra) set forth a "roadmap" for the proof required at trial and mandated a verdict in favor of plaintiffs upon their production of evidence that supported the decision's "listed facts". To the contrary, our decision was predicated upon the existence of such evidence, absent which we would have granted summary judgment in favor of defendant. We are equally unpersuaded by plaintiffs' continued reliance upon defendant's December 1991 unilateral conversion of its intercompany loans with LGV from debt to equity, which constituted nothing more than a "bookkeeping transaction" and had no apparent effect on LGV's obligations to defendant or defendant's right to foreclose on its mortgage.72 This doctrine is good law under Philippine jurisdiction. In Concept Builders, Inc. v. National Labor Relations Commission,73 we laid down the test in determining the applicability of the doctrine of piercing the veil of corporate fiction, to wit: 1. Control, not mere majority or complete control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own. 2. Such control must have been used by the defendant to commit fraud or wrong, to perpetuate the violation of a statutory or other positive legal duty, or dishonest and, unjust act in contravention of plaintiffs legal rights; and, 3. The aforesaid control and breach of duty must proximately cause the injury or unjust loss complained of. x x x x Time and again, we have reiterated that mere ownership by a single stockholder or by another corporation of all or nearly all of the capital stock of a corporation is not, by itself, a sufficient ground for disregarding a separate corporate personality.74 It is basic that a corporation has a personality separate and distinct from that composing it as well as from that of any other legal entity to which it may be related. Clear and convincing evidence is needed to pierce the veil of corporate fiction.75 In this case, the mere interlocking of directors and officers does not warrant piercing the separate corporate personalities of MMC and GHI. Not only must there be a showing that there was majority or complete control, but complete domination, not only of finances but of policy and business practice in respect to the transaction attacked, so that the corporate entity as to this transaction had at the time no separate mind, will or existence of its own. The mortgage deed transaction attacked as a basis for piercing the corporate veil was a transaction that was an offshoot, a derivative, of the mortgages earlier constituted in the Promissory Notes dated October 2, 1992. But these Promissory Notes with mortgage were executed by GHI with APT in the name of MMC, in a full privatization process. It appears that if there was any control or domination exercised over MMC, it was APT, not GHI, that wielded it. Neither can we conclude that the constitution of the loan nearly four (4) years prior to NAMAWU’s notice of strike could have been the proximate cause of the injury of NAMAWU for having been deprived of MMC’s corporate assets. On the propriety of injunction to prevent execution by the NLRC on the properties of third-party claimants It is settled that a Regional Trial Court can validly issue a Temporary Restraining Order (TRO) and, later, a writ of preliminary injunction to prevent enforcement of a writ of execution issued by a labor tribunal on the basis of a third-party’s claim of ownership over the properties levied upon.76 While, as a rule, no temporary or permanent injunction or restraining order in any case involving or growing out of a labor dispute shall be issued by any court--where the writ of execution issued by a labor tribunal is sought to be enforced upon the property of a stranger to the labor dispute, even upon a mere prima facie showing of ownership of such claimant--a separate action for injunctive relief against such levy may be maintained in court, since said action neither involves nor grows out of a labor dispute insofar as the third party is concerned.77 Instructively, National Mines and Allied Workers’ Union v. Vera78 Petitioners' reliance on the provision of Art. 254 of the New Labor Code (herein earlier quoted) which prohibits injunctions or restraining orders in any case involving or growing out of a 'labor

dispute' is not well-taken. This has no application to the case at bar. Civil Case No. 2749 is one which neither "involves" nor "grows out" of a labor dispute. What 'involves' or 'grows out' of a labor dispute is the NLRC case between petitioners and the judgment debtor, Philippine Iron Mines. The private respondents are not parties to the said NLRC case. Civil Case No. 2749 does not put in issue either the fact or validity of the proceeding in theNLRC case nor the decision therein rendered, much less the writ of execution issued thereunder. It does not seek to enjoin the execution of the decision against the properties of the judgment debtor. What is sought to be tried in Civil Case No. 2749 is whether the NLRC's decision and writ of execution, above mentioned, shall be permitted to be satisfied against properties of private respondents, and not of the judgment debtor named in the NLRC decision and writ of execution. Such a recourse is allowed under the provisions of Section 17, Rule 39 of the Rules of Court. To sustain petitioners' theory will inevitably lead to disastrous consequences and lend judicial imprimatur to deprivation of property without due process of law. Simply because a writ of execution was issued by the NLRC does not authorize the sheriff implementing the same to levy on anybody's property. To deny the victim of the wrongful levy, the recourse such as that availed of by the herein private respondents, under the pretext that no court of general jurisdiction can interfere with the writ of execution issued in a labor dispute, will be sanctioning a greater evil than that sought to be avoided by the Labor Code provision in question. Certainly, that could not have been the intendment of the law creating the NLRC. For well-settled is the rule that the power of a court to execute its judgment extends only over properties unquestionably belonging to the judgment debtor." Likewise, since the third-party claimant is not one of the parties to the action, he cannot, strictly speaking, appeal from the order denying his claim, but he should file a separate reivindicatory action against the execution creditor or the purchaser of the property after the sale at public auction, or a complaint for damages against the bond filed by the judgment creditor in favor of the sheriff.79 A separate civil action for recovery of ownership of the property would not constitute interference with the powers or processes of the labor tribunal which rendered the judgment to execute upon the levied properties. The property levied upon being that of a stranger is not subject to levy. Thus, a separate action for recovery, upon a claim and prima facie showing of ownership by the petitioner, cannot be considered as interference.80 Upon the findings and conclusions we have reached above, petitioner is situated squarely as such third-party claimant. The questioned restraining order of the lower court, as well as the order granting preliminary injunction, does not constitute interference with the powers or processes of the labor department. The registration of the mortgage document operated as notice to all on the matter of the mortgagee’s prior claims. Official proceedings relative to the foreclosure of the subject properties constituted a prima facie showing of ownership of such claimant to support the issuance of injunctive reliefs. As correctly held by the lower court: The subject incidents for TRO and/or Writ of Injunction were summarily heard and in resolving the same, the Court believes, that the petitioner has a clear and unmistakable right over the levied properties. The existence of the subject Deed of Real Estate and Chattel Mortgage, the fact that petitioner initiated a foreclosure of said properties before the Clerk of Court and Ex-Officio Sheriff, RTC Branch 61, Kabankalan City on July 13, 2001, the fact that said Ex-Officio Sheriff and the Clerk of Court issue a Notice of Foreclosure, Possession and Control over said mortgaged properties on July 19, 2001 and the fact that a Sheriff’s Certificate of Sale was issued on December 3, 2001 are the basis of its conclusion. Unless said mortgage contract is annulled or declared null and void, the presumption of regularity of transaction must be considered and said document must be looked [upon] as valid. Notably, the Office of the Solicitor General also aptly observed that when the respondent maintained that the Deed of Real Estate and Chattel mortgage was entered into in fraud of creditors, it thereby admitted that the mortgage was not void, but merely rescissible under Article 1381(3) of the Civil Code; and, therefore, an independent action is needed to rescind the contract

of mortgage.81 We, however, hold that such an independent action cannot now be maintained, because the mortgage has been previously recognized to exist, with a valid consideration, in Republic, etc., v. "G" Holdings, Inc. A final word The Court notes that the case filed with the lower court involves a principal action for injunction to prohibit execution over properties belonging to a third party not impleaded in the legal dispute between NAMAWU and MMC. We have observed, however, that the lower court and the CA failed to take judicial notice of, or to consider, our Decisions in Republic, etc., v. "G" Holdings, Inc., and Maricalum Mining Corporation v. Brion and NAMAWU, in which we respectively recognized the entitlement of GHI to the shares and the company notes of MMC (under the Purchase and Sale Agreement), and the rights of NAMAWU to its labor claims. At this stage, therefore, neither the lower court nor the CA, nor even this Court, can depart from our findings in those two cases because of the doctrine of stare decisis. From our discussion above, we now rule that the trial court, in issuing the questioned orders, did not commit grave abuse of discretion, because its issuance was amply supported by factual and legal bases. We are not unmindful, however, of the fact that the labor claims of NAMAWU, acknowledged by this Court in Maricalum, still awaits final execution. As success fades from NAMAWU’s efforts to execute on the properties of MMC, which were validly foreclosed by GHI, we see that NAMAWU always had, and may still have, ample supplemental remedies found in Rule 39 of the Rules of Court in order to protect its rights against MMC. These include the examination of the judgment obligor when judgment is unsatisfied,82 the examination of the obligors of judgment obligors,83 or even the resort to receivership.841avvphi1 While, theoretically, this case is not ended by this decision, since the lower court is still to try the case filed with it and decide it on the merits, the matter of whether the mortgage and foreclosure of the assets that are the subject of said foreclosure is ended herein, for the third and final time. So also is the consequential issue of the separate and distinct personalities of GHI and MMC. Having resolved these principal issues with certainty, we find no more need to remand the case to the lower court, only for the purpose of resolving again the matter of whether GHI owns the properties that were the subject of the latter’s foreclosure. WHEREFORE, the Petition is GRANTED. The Decision of the Court of Appeals dated October 14, 2003 is SET ASIDE. The Omnibus Order dated December 4, 2002 of the Regional Trial Court, Branch 61 of Kabankalan City, Negros Occidental is AFFIRMED. No costs. SO ORDERED. G.R. No. 110226 June 19, 1997 ALBERTO S. SILVA, EDILBERTO VIRAY ANGELES BARON, CEFERINO ROMERO, JAIME ACEVEDO, RODOLFO JUAN, ANDREW DE LA ISLA BAYANI PILAR, ULDARICO GARCIA, ANANIAS HERMOCILLA, WALLY LEONES, PABLO ALULOD, RODOLFO MARIANO, HERNANI ABOROT, CARLITO CHOSAS, VALERIANO MAUBAN, RENAN HALILI, MANOLITO CUSTODIO, NONILON DAWAL, RICARDO ESCUETA, SEVERINO ROSETE, ERNESTO LITADA, ERNESTO BARENG, BONIFACIO URBANO, VICENTE SANTOS, MARIO CREDO BERNABE GERONIMO, ERNESTO BANAY, PASTOR VELUZ, RICARDO CUEVAS, FELOMENO BALLON, ORLANDO MENDOZA, ANICETO ARBAN, GERONIMO ESPLANA, VICENTE CHAVEZ, STEVE VELECINA, and RICARDO B. VENTURA, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and PHILTREAD (FIRESTONE) TIRE AND RUBBER CORPORATION, respondents. ROMERO, J.: Petitioners, all former employees of private respondent Philtread (Firestone) Tire and Rubber Corporation (Philtread, for brevity), impute grave abuse of discretion on the National Labor Relations Commission (NLRC) 1 for issuing two resolutions, dated April 7, 1993, and November 18, 1992, which reconsidered a resolution it rendered on April 15, 1992. They allege that its resolution

of April 15, 1992 became final and executory when Philtread failed to seasonably file a motion for reconsideration within the ten-day reglementary period required by Article 223 of the Labor Code. The record unfolds the following facts: Sometime in 1985, petitioners, then rank-and-file employees and members of Philtread Workers Union (PWU), volunteered for, and availed of, the retrenchment program instituted by Philtread with the understanding that they would have priority in re-employment in the event that the company recovers from its financial crisis, in accordance with Section 4, Article III of the Collective Bargaining Agreement concluded on July 5, 1983. 2 In November 1986, Philtread, apparently having recovered from its financial reverses, expanded its operations and hired new personnel. Upon discovery of this development, petitioners filed their respective applications for employment with Philtread, which however, merely agreed to consider them for future vacancies. Subsequent demands for re-employment made by petitioners were ignored. Even the request of the incumbent union for Philtread to stop hiring new personnel until petitioners were first hired failed to elicit any favorable response. Thus, on December 5, 1988, petitioners lodged a complaint 3 with the National Capital Region Arbitration Branch of the NLRC for unfair labor practice (ULP), damages and attorney's fees against Philtread. Both parties submitted their respective position papers. On its part, Philtread moved for the dismissal of the complaint based on two grounds, namely: (1) that the NLRC lacked jurisdiction, there being no employer-employee relationship between it and petitioners and that the basic issue involved was the interpretation of a contract, the CBA, which was cognizable by the regular courts; and (2) that petitioners had no locus standi, not being privy to the CBA executed between the union and Philtread. Petitioners, however, challenging Philtread's motion to dismiss, stressed that the complaint was one for unfair labor practice precipitated by the unjust and unreasonable refusal of Philtread to re-employ them, as mandated by the provisions of Section 4, Article III of the 1986 and 1983 CBAs. Being one for unfair labor practice, petitioners concluded that the NLRC had jurisdiction over the case, pursuant to Article 217 (a) (1) of the Labor Code. On August 31, 1989, Labor Arbiter Edgardo M. Madriaga rendered a decision dismissing the complaint but directing Philtread to give petitioners priority in hiring, as well as those former employees similarly situated for available positions provided they meet the necessary current qualifications. 4 In dismissing the complaint, the Labor Arbiter, however, did not tackle the jurisdictional issue posed by Philtread in its position paper. Instead, he dwelt solely on the question whether the petitioners were entitled to priority in re-employment on the basis of the CBA. Petitioners duly appealed the decision of the Labor Arbiter to the NLRC. Philtread opted not to interpose an appeal despite the Labor Arbiter's failure to rule squarely on the question of jurisdiction. On April 15, 1992, the NLRC issued a resolution reversing the decision of the Labor Arbiter. It directed Philtread to re-employ petitioners and other employees similarly situated, regardless of age qualifications and other pre-employment conditions, subject only to existing vacancies and a finding of good physical condition. This resolution was received by Atty. Abraham B. Borreta of the law firm of Borreta, Gutierrez and Leogardo on May 5, 1992, as shown by the bailiff's return. Subsequently, Atty. Borreta filed with the NLRC on May 20, 1992, an ex parte manifestation explaining that he was returning the copy of the resolution rendered on April 15, 1992, which, according to him, was erroneously served on him by the process server of the NLRC. He alleged that in the several conciliation conferences held, it was Atty. Daniel C. Gutierrez who exclusively handled the case on behalf of Philtread and informed the Labor Arbiter and petitioners that the law firm of Borreta, Gutierrez and Leogardo had already been dissolved. Being of the impression that the April 15, 1992 resolution of the NLRC had been properly served at the address of the law firm of Atty. Gutierrez and that no seasonable motion for reconsideration was ever filed by Philtread, petitioners moved for its execution. On November 18, 1992, the NLRC, acting on a motion for reconsideration filed by Atty. Gutierrez, promulgated one of its challenged resolutions dismissing the complaint of petitioners. It ruled that

while petitioners had standing to sue, the complaint should have been filed with the voluntary arbitrator, pursuant to Article 261 of the Labor Code, since the primary issue was the implementation and interpretation of the CBA. Dismayed by the NLRC's sudden change of position, petitioners immediately moved for reconsideration. They pointed out that the NLRC's reliance on Article 261 of the Labor Code was patently erroneous because it was the amended provision which was being cited by the NLRC. They added that the amendment of Article 261 introduced by Republic Act No. 6715 took effect only on March 21, 1989, or after the filing of the complaint on December 5, 1988. This being the case, petitioners argued that the subsequent amendment cannot retroactively divest the Labor Arbiter of the jurisdiction already acquired in accordance with Articles 217 and 248 of the Labor Code. Petitioners further stressed that the resolution of April 15, 1992, had already become final and executory since Philtread's counsel of record did not file any motion for reconsideration within the period of ten (10) days from receipt of the resolution on May 5, 1992. The NLRC, however, was not convinced by petitioners' assertions. In another resolution issued on April 7, 1993, it affirmed its earlier resolution dated November 18, 1992, ruling that even before the amendatory law took effect, matters involving bargaining agreements were already within the exclusive jurisdiction of the voluntary arbitrator, as set forth in Article 262 of the Labor Code. Hence, this petition. As stated at the outset, petitioners fault the NLRC for issuing the assailed resolutions even when the resolution sought to be reconsidered had already attained finality upon Philtread's failure to timely move for its reconsideration. They posit that since the bailiff's return indicated May 5, 1992, as the date of receipt of the April 15, 1992 resolution by the law firm of Borreta, Gutierrez and Leogardo, Philtread's counsel of record, then Philtread only had ten (10) calendar days or until May 15, 1992, within which to file a motion for reconsideration. Since Philtread indisputably failed to file any such motion within said period, petitioners deemed it highly irregular and capricious for the NLRC to still allow reconsideration of its April 15, 1992 resolution. The petition is impressed with merit. Time and again, this Court has been emphatic in ruling that the seasonable filing of a motion for reconsideration within the l0-day reglementary period following the receipt by a party of any order, resolution or decision of the NLRC, is a mandatory requirement to forestall the finality of such order, resolution or decision. 5 The statutory bases for this is found in Article 223 of the Labor Code 6 and Section 14, Rule VII of the New Rules of Procedure of the National Labor Relations Commission. 7 In the case at bar, it is uncontroverted that Philtread's counsel filed a motion for reconsideration of the April 15, 1992 resolution only on June 5, 1992, 8 or 31 days after receipt of said resolution. 9 It was thus incumbent upon the NLRC to have dismissed outright Philtread's late motion for reconsideration. By doing exactly the opposite, its actuation was not only whimsical and capricious but also a demonstration of its utter disregard for its very own rules. Certiorari, therefore, lies. To be sure, it is settled doctrine that the NLRC, as an administrative and quasi-judicial body, is not bound by the rigid application of technical rules of procedure in the conduct of its proceedings. 10 However, the filing of a motion for reconsideration and filing it ON TIME are not mere technicalities of procedure. These are jurisdictional and mandatory requirements which must be strictly complied with. Although there are exceptions to said rule, the case at bar presents no peculiar circumstances warranting a departure therefrom. The Court is aware of Philtread's obvious attempt to skirt the requirement for seasonable filing of a motion for reconsideration by persuading us that both the Labor Arbiter and the NLRC have no jurisdiction over petitioners' complaint. Jurisdiction, Philtread claims, lies instead with the voluntary arbitrator so that when the Labor Arbiter and the NLRC took cognizance of the case, their decisions thereon were null and void and, therefore, incapable of attaining finality. In short, Philtread maintains that the ten-day reglementary period could not have started running and, therefore, its motion could not be considered late. The argument is not tenable. While we agree with the dictum that a void judgment cannot attain finality, said rule, however, is only relevant if the tribunal or body which takes cognizance of a

particular subject matter indeed lacks jurisdiction over the same. In this case, the rule adverted to is misapplied for it is actually the Labor Arbiter and the NLRC which possess jurisdiction over petitioners' complaint and NOT the voluntary arbitrator, as erroneously contended by Philtread. In this regard, we observe that there is a confusion in the minds of both Philtread and the NLRC with respect to the proper jurisdiction of the voluntary arbitrator. They appear to share the view that once the question involved is an interpretation or implementation of CBA provisions, which in this case is the re-employment clause, then the same necessarily falls within the competence of the voluntary arbitrator pursuant to Article 261 of the Labor Code. Respondents' posture is too simplistic and finds no support in law or in jurisprudence. When the issue concerns an interpretation or implementation of the CBA, one cannot immediately jump to the conclusion that jurisdiction is with the voluntary arbitrator. There is an equally important need to inquire further if the disputants involved are the union and the employer; otherwise, the voluntary arbitrator cannot assume jurisdiction. To this effect was the ruling of the Court in Sanyo Philippines Workers Union-PSSLU v. Canizares, 11 where we clarified the jurisdiction of the voluntary arbitrator in this manner: In the instant case, however, We hold that the Labor Arbiter and not the Grievance Machinery provided for in the CBA has the jurisdiction to hear and decide the complaints of the private respondents. While it appears that the dismissal of the private respondents was made upon the recommendation of PSSLU pursuant to the union security clause provided in the CBA, We are of the opinion that these facts do not come within the phrase "grievances arising from the interpretation or implementation of (their) Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies," the jurisdiction of which pertains to the Grievance Machinery or thereafter, to a voluntary arbitrator or panel of voluntary arbitrators. Article 260 of the Labor Code on grievance machinery and voluntary arbitrator states that "(t)he parties to a Collective Bargaining Agreement shall include therein provisions that will ensure the mutual observance of its terms and conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies." It is further provided in said article that the parties to a CBA shall name or designate their respective representatives to the grievance machinery and if the grievance is not settled in that level, it shall automatically be referred to voluntary arbitrators (or panel of voluntary arbitrators) designated in advance by the parties. It need not be mentioned that the parties to a CBA are the union and the company. Hence, only disputes involving the union and the company shall be referred to the grievance machinery or voluntary arbitrators. (Emphasis supplied) Since the contending parties in the instant case are not the union and Philtread, then pursuant to the Sanyodoctrine, it is not the voluntary arbitrator who can take cognizance of the complaint, notwithstanding Philtread's claim that the real issue is the interpretation of the CBA provision on re-employment. The Court, however, does not write finis to the discussion. A more important question arises: If the voluntary arbitrator could not have assumed jurisdiction over the case, did the Labor Arbiter and the NLRC validly acquire jurisdiction when both of them entertained the complaint? A brief review of relevant statutory provisions is in order. We note that at the time petitioners filed their complaint for unfair labor practice, damages and attorney's fees on December 5, 1988, the governing provision of the Labor Code with respect to the jurisdiction of the Labor Arbiter and the NLRC was Article 217 which states: Art. 217. Jurisdiction of Labor Arbiters and the Commission. (a) The Labor Arbiters shall have the original and exclusive jurisdiction to hear and decide within thirty (30) working days after submission of the case by the parties for decision, the following cases involving all workers, whether agricultural or non-agricultural: 1. Unfair labor practice cases; 2. Those that workers may file involving wages, hours of work and other terms and conditions of employment;

3. All money claims of workers, including those based on non-payment or underpayment of wages, overtime compensation, separation pay and other benefits provided by law or appropriate agreement, except claims for employees' compensation, social security, medicare and maternity benefits; 4. Cases involving household services; and 5. Cases arising from any violation of Article 265 of this Code, including questions involving the legality of strikes and lockouts. (b) The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters. Articles 261 and 262, on the other hand, defined the jurisdiction of the voluntary arbitrator, viz.: Art. 261. Grievance machinery. — Whenever a grievance arises from the interpretation or implementation of a collective agreement, including disciplinary actions imposed on members of the bargaining unit, the employer and the bargaining representative shall meet to adjust the grievance. Where there is no collective agreement and in cases where the grievance procedure as provided herein does not apply, grievances shall be subject to negotiation, conciliation or arbitration as provided elsewhere in this Code. Art. 262. Voluntary arbitration. — All grievances referred to in the immediately preceding Article which are not settled through the grievance procedure provided in the collective agreement shall be referred to voluntary arbitration prescribed in said agreement: Provided, That termination disputes shall be governed by Article 278 of this Code, as amended, unless the parties agree to submit them to voluntary arbitration. Under the above provisions then prevailing, one can understand why petitioners lodged their complaint for ULP with the Labor Arbiter. To their mind, Philtread's refusal to re-employ them was tantamount to a violation of the re-employment clause in the 1983 CBA which was also substantially reproduced in the 1986 CBA. At the time, any violation of the CBA was unqualifiedly treated as ULP of the employer falling within the competence of the Labor Arbiter to hear and decide. Thus: Art. 248. Unfair labor practices of employers. — It shall be unlawful for an employer to commit any of the following unfair labor practice: xxx xxx xxx (i) To violate a collective bargaining agreement. On March 21, 1989, however, Republic Act 6715, 12 or the so-called "Herrera-Veloso Amendments," took effect, amending several provisions of the Labor Code, including the respective jurisdictions of the Labor Arbiter, the NLRC and the voluntary arbitrator. As a result, the present jurisdiction of the Labor Arbiter and the NLRC is as follows: Art. 217. Jurisdiction of Labor Arbiters and the Commission. — (a) Except as otherwise provided under this Code the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural: 1. Unfair labor practice cases; 2. Termination disputes; 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of work and other terms and conditions of employment; 4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; 5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims, arising from employer-employee relations, including those of persons in domestic or household service, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.

(b) The Commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters. (c) Cases arising from the interpretation or implementation of collective bargaining agreements and those arising from the interpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may be provided in said agreements. while that of the voluntary arbitrator is defined in this wise: Art. 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. — The Voluntary Arbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the Collective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to in the immediately preceding article. According violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice and shall be resolved as as grievances under the Collective Bargaining Agreement. For purposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement. . . . (Emphasis supplied) Art. 262. Jurisdiction over other labor disputes. — The Voluntary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties, shall also hear and decide all other labor disputes including unfair labor practices and bargaining deadlocks. With the amendments introduced by RA 6715, it can be gleaned that the Labor Arbiter still retains jurisdiction over ULP cases. There is, however, a significant change: The unqualified jurisdiction conferred upon the Labor Arbiter prior to the amendment by RA 6715 has been narrowed down so that "violations of a Collective Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfair labor practice but as grievances under the Collective Bargaining Agreement. It is further stated that "gross violations of Collective Bargaining Agreement shall mean flagrant and/or malicious refusal to comply with the economic provisions of such agreement." Hence, for a ULP case to be cognizable by the Labor Arbiter, and the NLRC to exercise its appellate jurisdiction, the allegations in the complaint should show prima facie the concurrence of two things, namely: (1) gross violation of the CBA; AND (2) the violation pertains to the economic provisions of the CBA. In several instances prior to the instant case, the Court already made its pronouncement that RA 6715 is in the nature of a curative statute. As such, we declared that it can be applied retroactively to pending cases. Thus, inBriad Agro Development Corporation v. Dela Cerna, 13 we held: Republic Act No. 6715, like its predecessors, Executive Order No. 111 and Article 217, as amended, has retroactive application. Thus, when this new law divested Regional Directors of the power to hear money claims, the divestment affected pending litigations. It also affected this particular case. (Note that under par 6, where the claim does not exceed P5,000.00, regional directors have jurisdiction). In Garcia v. Martinez, we categorically held that amendments relative to the jurisdiction of labor arbiters (under Presidential Decree No. 1367, divesting the labor arbiter of jurisdiction) partake of the nature of curative statutes, thus: It now appears that at the time this case was decided the lower court had jurisdiction over Velasco's complaint although at the time it was filed said court was not clothed with such jurisdiction. The lack of jurisdiction was cured by the issuance of the amendatory decree which is in the nature of a curative statute with retrospective application to a pending proceeding, like Civil Case No. 9657 (See 82 C.J.S. 1004). Garcia has since been uniformly applied in subsequent cases. Thus, in Calderon v. Court of Appeals, reiterated that PD No. 1367 [is] curative and retrospective in nature. The Decision of this case, finally, acknowledged the retrospective characteristics of Executive Order No. 111. . . . With the Briad ruling in place, the implication is that the qualified jurisdiction of the Labor Arbiter and the NLRC should have been applied when the ULP complaint was still pending. This means that

petitioners should have been required to show in their complaint the gross nature of the CBA violation, as well as the economic provision violated, without which the complaint would be dismissible. Herein lies the problem. The Court's appreciation of petitioners' cause of action is that, while it would make out a case for ULP, under present law, however, the same falls short of the special requirements necessary to make it cognizable by the Labor Arbiter and the NLRC. Unsubstantiated conclusions of bad faith and unjustified refusal to re-employ petitioners, to our mind, do not constitute gross violation of the CBA for purposes of lodging jurisdiction with the Labor Arbiter and the NLRC. Although evidentiary matters are not required (and even discouraged) to be alleged in complaint, still, sufficient details supporting the conclusion of bad faith and unjust refusal to re-employ petitioners must be indicated. Furthermore, it is even doubtful if the CBA provision on re-employment fits into the accepted notion of an economic provision of the CBA. Thus, given the foregoing considerations, may the Briad doctrine be applied to the instant case and cause its dismissal for want of jurisdiction of the Labor Arbiter and the NLRC? Upon a careful and meticulous study of Briad, the Court holds that the rationale behind it does not apply to the present case. We adopt instead the more recent case of Erectors, Inc. v. National Labor Relations Commission,14 where we refused to give retroactive application to Executive Order No. 797 which created the Philippine Overseas Employment Administration (POEA). Under said law, POEA was vested with "original and exclusive jurisdiction over all cases, including money claims, involving employer-employee relations arising out of or by virtue of any law or contract involving Filipino workers for overseas employment," 15 which jurisdiction was originally conferred upon the Labor Arbiter. As in the instant case, the Labor Arbiter's assumption of jurisdiction therein was likewise questioned in view of the subsequent enactment of E.O. 797. In ruling against the retroactive application of the law, the Court explained its position as follows: The rule is that jurisdiction over the subject matter is determined by the law in force at the time of the commencement of the action. On March 31, 1982, at the time private respondent filed his complaint against the petitioner, the prevailing laws were Presidential Decree No. 1691 and Presidential Decree No. 1391 which vested the Regional Offices of the Ministry of Labor and the Labor Arbiters with "original and exclusive jurisdiction over all cases involving employer-employee relations including money claims arising out of any law or contracts involving Filipino workers for overseas employment." At the time of the filing of the complaint, the Labor Arbiter had clear jurisdiction over the same. E.O. No. 797 did not divest the Labor Arbiter's authority to hear and decide the case filed by private respondent prior to its effectivity. Laws should only be applied prospectively unless the legislative intent to give them retroactive effect is expressly declared or is necessarily implied from the language used. We fail to perceive in the language of E.O. No. 797 an intention to give it retroactive effect. The case of Briad Agro Development Corp. vs. Dela Cerna cited by the petitioner is not applicable to the case at bar. In Briad, the Court applied the exception rather than the general rule. In this case, Briad Agro Development Corp. and L.M. Camus Engineering Corp. challenged the jurisdiction of the Regional Director of the Department of Labor and Employment over cases involving workers' money claims, since Article 217 of the Labor Code, the law in force at the time of the filing of the complaint, vested in the Labor Arbiters exclusive jurisdiction over such cases. The Court dismissed the petition in its Decision dated June 29, 1989. It ruled that the enactment of E.O. No. 111, amending Article 217 of the Labor Code, cured the Regional Director's lack of jurisdiction by giving the Labor Arbiter and the Regional Director concurrent jurisdiction over all cases involving money claims. However, on November 9, 1989, the Court, in a Resolution, reconsidered and set aside its June 29 Decision and referred the case to the Labor Arbiter for proper proceedings, in view of the promulgation of Republic Act (R.A.) 6715 which divested the Regional Directors of the power to hear money claims. It bears emphasis that the Court accorded E.O. No. 111 and R.A. 6715 a retroactive application because as curative statutes, they fall under the exceptions to the rule on prospectivity of laws. E.O. No. 111, amended Article 217 of the Labor Code to widen the worker's access to the government for redress of grievances by giving the Regional Directors and Labor Arbiters

concurrent jurisdiction over cases involving money claims. This amendment, however, created a situation where the jurisdiction of the Regional Directors and the Labor Arbiters overlapped. As a remedy, R.A. 6715 further amended Article 217 by delineating their respective jurisdictions. Under R.A. 6715, the Regional Director has exclusive original jurisdiction over cases involving money claims provided: (1) the claim is presented by an employer or person employed in domestic or household service, or househelper under the Code; (2) the claimant, no longer being employed, does not seek reinstatement; and (3) the aggregate money claim of the employee or househelper does not exceed P5,000.00. All other cases within the exclusive and original jurisdiction of the Labor Arbiter. E.O. No. 111 and R.A. 6715 are therefore curative statutes. A curative statute is enacted to cure defects in a prior law or to validate legal proceedings, instruments or acts of public authorities which would otherwise be void for want of conformity with certain existing legal requirements. The law at bar, E.O. No. 797, is not a curative statute. . . . We do not find any reason why the Court should not apply the above ruling to the case at bar, notwithstanding the fact that a different law is involved. Actually, this is not the first time that the Court refused to apply RA 6715 retroactively. 16 Our previous decisions on whether to give it retroactive application or not depended to a great extent on what amended provisions were under consideration, as well as the factual circumstances to which they were made to apply. In Briad, the underlying reason for applying RA 6715 retroactively was the fact that prior to its amendment, Article 217 of the Labor Code, as amended by then Executive Order No. 111, created a scenario where the Labor Arbiters and the Regional Directors of the Department of Labor and Employment (DOLE) had overlapping jurisdiction over money claims. This situation was viewed as a defect in the law so that when RA No. 6715 was passed and delineated the jurisdiction of the Labor Arbiters and Regional Directors, the Court deemed it a rectification of such defect; hence, the conclusion that it was curative in nature and, therefore, must be applied retroactively. The same thing cannot be said of the case at bar. Like in Erectors, the instant case presents no defect in the law requiring a remedy insofar as the jurisdiction of the Labor Arbiter and the Voluntary Arbitrator is concerned. There is here no overlapping of jurisdiction to speak of because matters involving interpretation and implementation of CBA provisions, as well as interpretation and enforcement of company personnel policies, have always been determined by the Voluntary Arbitrator even prior to RA 6715. Similarly, all ULP cases were exclusively within the jurisdiction of the Labor Arbiter. What RA 6715 merely did was to re-apportion the jurisdiction over ULP cases by conferring exclusive jurisdiction over such ULP cases that do not involve gross violation of a CBA's economic provision upon the voluntary arbitrator. We do not see anything in the act of re-apportioning jurisdiction curative of any defect in the law as it stood prior to the enactment of RA 6715. The Court view it as merely a matter of change in policy of the lawmakers, especially since the 1987 Constitution adheres to the preferential use of voluntary modes of dispute settlement. 17 This, instead of the inherent defect in the law, must be the rationale that prompted the amendment. Hence, we uphold the jurisdiction of the Labor Arbiter which attached to this case at the time of its filing on December 5, 1988. Finally, the contention that it was Atty. Gutierrez who exclusively represented Philtread and that the law firm of Borreta, Gutierrez and Leogardo had been dissolved, are lame excuses to cast doubt on the propriety of service to Atty. Borreta. It must be noted that the complaint of petitioners was filed on December 5, 1988. Presumably, the preliminary conferences adverted to by Atty. Borreta, where Atty. Gutierrez supposedly declared that he was exclusively representing Philtread, transpired at around that date. The Court, however, is surprised to discover that the record bears a Notice of Change of Address dated March 12, 1990, filed by Atty. Gutierrez, indicating therein that the counsel for respondent (Philtread) was "Borreta, Gutierrez and Leogardo" whose address could be found at the "3rd Floor, Commodore Condominium Arquiza corner M. Guerrero Streets, Ermita, Manila." If, indeed, Atty. Gutierrez declared during the Labor Arbiter's proceedings that he was exclusively representing Philtread, why then did he use the firm's name, and its new address at that, in the aforementioned notice to the NLRC? Moreover, why did Atty. Borreta take fifteen days to file his Manifestation and inform the NLRC of the "improper" service of the resolution to him?

Why did he not object immediately to the service by the bailiff? Considering that Atty. Gutierrez and Atty. Borreta were once partners in their law firm, it behooves Atty. Borreta to have at least advised his former partner of the receipt of the resolution. As a lawyer, his receipt of the adverse resolution should have alerted him of the adverse consequences which might follow if the same were not acted upon promptly, as what in fact happened here. As for Atty. Gutierrez, if the law firm of Borreta, Gutierrez, and Leogardo were really dissolved, it was incumbent upon him not to have used the firm's name in the first place, or he should have withdrawn the appearance of the firm and entered his own appearance, in case the dissolution took place midstream. By failing to exercise either option, Atty. Gutierrez cannot now blame the NLRC for serving its resolution at the address of the firm still on record. 18 To our mind, these excuses cannot camouflage the clever ploy of Philtread's counsel to earn a last chance to move for reconsideration. This Court, it bears emphasizing, is not impressed, but looks incredulously at such superficial moves. WHEREFORE, the instant petition is hereby GRANTED. The assailed resolutions of the NLRC dated November 18, 1992, and April 7, 1993, are SET ASIDE, while its resolution dated April 15, 1992, is REINSTATED for immediate execution. SO ORDERED. G.R. No. 157376 October 2, 2007 CORAZON C. SIM, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and EQUITABLE PCI-BANK, respondents*. D E C I S I O N AUSTRIA-MARTINEZ, J.: Corazon Sim (petitioner) filed a case for illegal dismissal with the Labor Arbiter, alleging that she was initially employed by Equitable PCI-Bank (respondent) in 1990 as Italian Remittance Marketing Consultant to the Frankfurt Representative Office. Eventually, she was promoted to Manager position, until September 1999, when she received a letter from Remegio David -- the Senior Officer, European Head of PCIBank, and Managing Director of PCIB- Europe -- informing her that she was being dismissed due to loss of trust and confidence based on alleged mismanagement and misappropriation of funds. Respondent denied any employer-employee relationship between them, and sought the dismissal of the complaint. On September 3, 2001, the Labor Arbiter rendered its Decision dismissing the case for want of jurisdiction and/or lack of merit.1 According to the Labor Arbiter: It should be stressed at this juncture that the labor relations system in the Philippines has no extra-territorial jurisdiction. It is limited to the relationship between labor and capital within the Philippines. Since complainant was hired and assigned in a foreign land, although by a Philippine Corporation, it follows that the law that govern their relationship is the law of the place where the employment was executed and her place of work or assignment. On this premise, the Italian law allegedly provides severance pay which was applied and extended to herein complainant (Annex "P", respondent's position paper). As can be gleaned from the foregoing, a further elucidation on the matter would be an exercise in futility. Hence, this case should be dismissed for want of jurisdiction. Assuming for the sake of argument that this Office has jurisdiction over this case, still, this Office is inclined to rule in favor of the respondent. Complainant, as General Manager is an employee whom the respondent company reposed its trust and confidence. In other words, she held a position of trust. It is well-settled doctrine that the basic premise for dismissal on the ground of loss of confidence is that the employee concerned holds a position of trust and confidence. (National Sugar Refineries Corporation vs. NLRC, 286 SCRA 478.) x x x In this case, the respondent company had strong reason to believe that the complainant was guilty of the offense charged against her.2 On appeal, the National Labor Relations Commission (NLRC) affirmed the Labor Arbiter's Decision and dismissed petitioner's appeal for lack of merit.3

Without filing a motion for reconsideration with the NLRC, petitioner went to the Court of Appeals (CA) via a petition for certiorari under Rule 65 of the Rules of Court. In a Resolution dated October 29, 2002, the CA4 dismissed the petition due to petitioner's non-filing of a motion for reconsideration with the NLRC.5 Petitioner filed a motion for reconsideration but it was nonetheless denied by the CA per Resolution dated February 26, 2003. Hence, the present recourse under Rule 45 of the Rules of Court. Petitioner alleges that: I. The Court of Appeals departed from the accepted and usual concepts of remedial law when it ruled that the petitioner should have first filed a Motion for Reconsideration with the National Labor Relations Commission. II. The National Labor Relations Commission decided a question of jurisdiction heretofore not yet determined by the Court and decided the same in a manner not in accord with law when it ruled that it had no jurisdiction over a labor dispute between a Philippine corporation and its employee which it assigned to work for a foreign land.6 The pivotal question that needs to be resolved is whether or not a prior motion for reconsideration is indispensable for the filing of a petition for certiorari under Rule 65 of the Rules of Court with the CA. Under Rule 65, the remedy of filing a special civil action for certiorari is available only when there is no appeal; or any plain, speedy, and adequate remedy in the ordinary course of law.7 A "plain" and "adequate remedy" is a motion for reconsideration of the assailed order or resolution, the filing of which is an indispensable condition to the filing of a special civil action for certiorari.8 This is to give the lower court the opportunity to correct itself.9 There are, of course, exceptions to the foregoing rule, to wit: (a) where the order is a patent nullity, as where the court a quo has no jurisdiction; (b) where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; (c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable; (d) where, under the circumstances, a motion for reconsideration would be useless; (e) where petitioner was deprived of due process and there is extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack of due process; (h) where the proceeding was ex parte or in which the petitioner had no opportunity to object; and (i) where the issue raised is one purely of law or public interest is involved.10 Petitioner, however, failed to qualify her case as among the few exceptions. In fact, the Court notes that the petition filed before the CA failed to allege any reason why a motion for reconsideration was dispensed with by petitioner. It was only in her motion for reconsideration of the CA's resolution of dismissal and in the petition filed in this case that petitioner justified her non-filing of a motion for reconsideration. Petitioner argues that filing a motion for reconsideration with the NLRC would be merely an exercise in futility and useless. But it is not for petitioner to determine whether it is so. As stressed in Cervantes v. Court of Appeals: It must be emphasized that a writ of certiorari is a prerogative writ, never demandable as a matter of right, never issued except in the exercise of judicial discretion. Hence, he who seeks a writ of certiorari must apply for it only in the manner and strictly in accordance with the provisions of the law and the Rules.Petitioner may not arrogate to himself the determination of whether a motion for reconsideration is necessary or not. To dispense with the requirement of filing a motion for reconsideration, petitioner must show a concrete, compelling, and valid reason for doing so, which petitioner failed to do. Thus, the Court of Appeals correctly dismissed the petition.11 (Emphasis supplied)

Petitioner also contends that the issue at bench is purely a question of law, hence, an exception to the rule. A reading of the petition filed with the CA shows otherwise. The issues raised in this case are mixed questions of fact and law. There is a question of fact when doubt or difference arises as to the truth or falsehood of the alleged facts, and there is a question of law where the doubt or difference arises as to what the law is on a certain state of facts.12 Petitioner, aside from questioning the ruling of the NLRC sustaining the Labor Arbiter's view that it does not have any jurisdiction over the case, also questions the NLRC's ruling affirming the Labor Arbiter's conclusion that she was validly dismissed by respondent. The legality of petitioner's dismissal hinges on the question of whether there was an employer-employee relationship, which was denied by respondent; and, if in the affirmative, whether petitioner, indeed, committed a breach of trust and confidence justifying her dismissal. These are mixed questions of fact and law and, as such, do not fall within the exception from the filing of a motion for reconsideration. Consequently, the CA was not in error when it dismissed the petition. More so since petitioner failed to show any error on the part of the Labor Arbiter and the NLRC in ruling that she was dismissed for cause. The rule is that the Court is bound by the findings of facts of the Labor Arbiter or the NLRC, unless it is shown that grave abuse of discretion or lack or excess of jurisdiction has been committed by said quasi-judicial bodies.13 The Court will not deviate from said doctrine without any clear showing that the findings of the Labor Arbiter, as affirmed by the NLRC, are bereft of sufficient substantiation. Petitioner does not deny having withdrawn the amount of P3,000,000.00 lire from the bank's account. What petitioner submits is that she used said amount for the Radio Pilipinas sa Roma radio program of the company. Respondent, however, countered that at the time she withdrew said amount, the radio program was already off the air. Respondent is a managerial employee. Thus, loss of trust and confidence is a valid ground for her dismissal.14 The mere existence of a basis for believing that a managerial employee has breached the trust of the employer would suffice for his/her dismissal.15 [w]hen an employee accepts a promotion to a managerial position or to an office requiring full trust and confidence, she gives up some of the rigid guaranties available to ordinary workers. Infractions which if committed by others would be overlooked or condoned or penalties mitigated may be visited with more severe disciplinary action. A company's resort to acts of self-defense would be more easily justified.16 The Court notes, however, a palpable error in the Labor Arbiter's disposition of the case, which was affirmed by the NLRC, with regard to the issue on jurisdiction. It was wrong for the Labor Arbiter to rule that "labor relations system in the Philippines has no extra-territorial jurisdiction."17 Article 217 of the Labor Code provides for the jurisdiction of the Labor Arbiter and the National Labor Relations Commission, viz.: ART. 217. Jurisdiction of Labor Arbiters and the Commission. – (a) Except as otherwise provided under this Code the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide, within thirty (30) calendar days after the submission of the case by the parties for decision without extension, even in the absence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural: 1. Unfair labor practice cases; 2. Termination disputes; 3. If accompanied with a claim for reinstatement, those cases that workers may file involving wage, rates of pay, hours of work and other terms and conditions of employment; 4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employee relations; 5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts; and 6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims, arising from employer-employee relations, including those of persons in domestic or household service, involving an amount of exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.

(b) The commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters. Moreover, Section 10 of Republic Act (R.A.) No. 8042, or the Migrant Workers and Overseas Filipinos Act of 1995,18 provides: SECTION 10. Money Claims. — Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages. Also, Section 62 of the Omnibus Rules and Regulations Implementing R.A. No. 804219 provides that the Labor Arbiters of the NLRC shall have the original and exclusive jurisdiction to hear and decide all claims arising out of employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual, moral, exemplary and other forms of damages, subject to the rules and procedures of the NLRC. Under these provisions, it is clear that labor arbiters have original and exclusive jurisdiction over claims arising from employer-employee relations, including termination disputes involving all workers, among whom are overseas Filipino workers.20 In Philippine National Bank v. Cabansag, the Court pronounced: x x x Whether employed locally or overseas, all Filipino workers enjoy the protective mantle of Philippine labor and social legislation, contract stipulations to the contrary notwithstanding. This pronouncement is in keeping with the basic public policy of the State to afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and employers. For the State assures the basic rights of all workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work [Article 3 of the Labor Code of the Philippines; See also Section 18, Article II and Section 3, Article XIII, 1987 Constitution]. This ruling is likewise rendered imperative by Article 17 of the Civil Code which states that laws "which have for their object public order, public policy and good customs shall not be rendered ineffective by laws or judgments promulgated, or by determination or conventions agreed upon in a foreign country."21 (Emphasis supplied) In any event, since the CA did not commit any error in dismissing the petition before it for failure to file a prior motion for reconsideration with the NLRC, and considering that the Labor Arbiter and the NLRC's factual findings as regards the validity of petitioner's dismissal are accorded great weight and respect and even finality when the same are supported by substantial evidence, the Court finds no compelling reason to relax the rule on the filing of a motion for reconsideration prior to the filing of a petition for certiorari. WHEREFORE, the petition is DENIED. Costs against petitioner. SO ORDERED. G.R. No. 178610 November 17, 2010 HONGKONG AND SHANGHAI BANKING CORP., LTD. STAFF RETIREMENT PLAN, Retirement Trust Fund, Inc.) Petitioner, vs. SPOUSES BIENVENIDO AND EDITHA BROQUEZA, Respondents. D E C I S I O N CARPIO, J.: G.R. No. 178610 is a petition for review1 assailing the Decision2 promulgated on 30 March 2006 by the Court of Appeals (CA) in CA-G.R. SP No. 62685. The appellate court granted the petition filed by Fe Gerong (Gerong) and Spouses Bienvenido and Editha Broqueza (spouses Broqueza) and dismissed the consolidated complaints filed by Hongkong and Shanghai Banking Corporation, Ltd. - Staff Retirement Plan (HSBCL-SRP) for recovery of sum of money. The appellate court reversed and set aside the Decision3 of Branch 139 of the Regional Trial Court of Makati City (RTC) in Civil Case No. 00-787 dated 11 December 2000, as well as its Order4 dated 5 September 2000. The RTC’s

decision affirmed the Decision5 dated 28 December 1999 of Branch 61 of the Metropolitan Trial Court (MeTC) of Makati City in Civil Case No. 52400 for Recovery of a Sum of Money. The Facts The appellate court narrated the facts as follows: Petitioners Gerong and [Editha] Broqueza (defendants below) are employees of Hongkong and Shanghai Banking Corporation (HSBC). They are also members of respondent Hongkong Shanghai Banking Corporation, Ltd. Staff Retirement Plan (HSBCL-SRP, plaintiff below). The HSBCL-SRP is a retirement plan established by HSBC through its Board of Trustees for the benefit of the employees. On October 1, 1990, petitioner [Editha] Broqueza obtained a car loan in the amount of Php175,000.00. On December 12, 1991, she again applied and was granted an appliance loan in the amount of Php24,000.00. On the other hand, petitioner Gerong applied and was granted an emergency loan in the amount of Php35,780.00 on June 2, 1993. These loans are paid through automatic salary deduction. Meanwhile [in 1993], a labor dispute arose between HSBC and its employees. Majority of HSBC’s employees were terminated, among whom are petitioners Editha Broqueza and Fe Gerong. The employees then filed an illegal dismissal case before the National Labor Relations Commission (NLRC) against HSBC. The legality or illegality of such termination is now pending before this appellate Court in CA G.R. CV No. 56797, entitledHongkong Shanghai Banking Corp. Employees Union, et al. vs. National Labor Relations Commission, et al. Because of their dismissal, petitioners were not able to pay the monthly amortizations of their respective loans. Thus, respondent HSBCL-SRP considered the accounts of petitioners delinquent. Demands to pay the respective obligations were made upon petitioners, but they failed to pay.6 HSBCL-SRP, acting through its Board of Trustees and represented by Alejandro L. Custodio, filed Civil Case No. 52400 against the spouses Broqueza on 31 July 1996. On 19 September 1996, HSBCL-SRP filed Civil Case No. 52911 against Gerong. Both suits were civil actions for recovery and collection of sums of money. The Metropolitan Trial Court’s Ruling On 28 December 1999, the MeTC promulgated its Decision7 in favor of HSBCL-SRP. The MeTC ruled that the nature of HSBCL-SRP’s demands for payment is civil and has no connection to the ongoing labor dispute. Gerong and Editha Broqueza’s termination from employment resulted in the loss of continued benefits under their retirement plans. Thus, the loans secured by their future retirement benefits to which they are no longer entitled are reduced to unsecured and pure civil obligations. As unsecured and pure obligations, the loans are immediately demandable. The dispositive portion of the MeTC’s decision reads: WHEREFORE, premises considered and in view of the foregoing, the Court finds that the plaintiff was able to prove by a preponderance of evidence the existence and immediate demandability of the defendants’ loan obligations as judgment is hereby rendered in favor of the plaintiff and against the defendants in both cases, ordering the latter: 1. In Civil Case No. 52400, to pay the amount of Php116,740.00 at six percent interest per annum from the time of demand and in Civil Case No. 52911, to pay the amount of Php25,344.12 at six percent per annum from the time of the filing of these cases, until the amount is fully paid; 2. To pay the amount of Php20,000.00 each as reasonable attorney’s fees; 3. Cost of suit. SO ORDERED.8 Gerong and the spouses Broqueza filed a joint appeal of the MeTC’s decision before the RTC. Gerong’s case was docketed Civil Case No. 00-786, while the spouses Broqueza’s case was docketed as Civil Case No. 00-787. The Regional Trial Court’s Ruling The RTC initially denied the joint appeal because of the belated filing of Gerong and the spouses Broqueza’s memorandum. The RTC later reconsidered the order of denial and resolved the issues in the interest of justice. On 11 December 2000, the RTC affirmed the MeTC’s decision in toto.9

The RTC ruled that Gerong and Editha Broqueza’s termination from employment disqualified them from availing of benefits under their retirement plans. As a consequence, there is no longer any security for the loans. HSBCL-SRP has a legal right to demand immediate settlement of the unpaid balance because of Gerong and Editha Broqueza’s continued default in payment and their failure to provide new security for their loans. Moreover, the absence of a period within which to pay the loan allows HSBCL-SRP to demand immediate payment. The loan obligations are considered pure obligations, the fulfillment of which are demandable at once. Gerong and the spouses Broqueza then filed a Petition for Review under Rule 42 before the CA. The Ruling of the Court of Appeals On 30 March 2006, the CA rendered its Decision10 which reversed the 11 December 2000 Decision of the RTC. The CA ruled that the HSBCL-SRP’s complaints for recovery of sum of money against Gerong and the spouses Broqueza are premature as the loan obligations have not yet matured. Thus, no cause of action accrued in favor of HSBCL-SRP. The dispositive portion of the appellate court’s Decision reads as follows: WHEREFORE, the assailed Decision of the RTC is REVERSED and SET ASIDE. A new one is hereby rendered DISMISSING the consolidated complaints for recovery of sum of money. SO ORDERED.11 HSBCL-SRP filed a motion for reconsideration which the CA denied for lack of merit in its Resolution12promulgated on 19 June 2007. On 6 August 2007, HSBCL-SRP filed a manifestation withdrawing the petition against Gerong because she already settled her obligations. In a Resolution13 of this Court dated 10 September 2007, this Court treated the manifestation as a motion to withdraw the petition against Gerong, granted the motion, and considered the case against Gerong closed and terminated. Issues HSBCL-SRP enumerated the following grounds to support its Petition: I. The Court of Appeals has decided a question of substance in a way not in accord with law and applicable decisions of this Honorable Court; and II. The Court of Appeals has departed from the accepted and usual course of judicial proceedings in reversing the decision of the Regional Trial Court and the Metropolitan Trial Court.14 The Court’s Ruling The petition is meritorious. We agree with the rulings of the MeTC and the RTC. The Promissory Notes uniformly provide: PROMISSORY NOTE P_____ Makati, M.M. ____ 19__ FOR VALUE RECEIVED, I/WE _____ jointly and severally promise to pay to THE HSBC RETIREMENT PLAN (hereinafter called the "PLAN") at its office in the Municipality of Makati, Metro Manila, on or before until fully paid the sum of PESOS ___ (P___) Philippine Currency without discount, with interest from date hereof at the rate of Six per cent (6%) per annum, payable monthly. I/WE agree that the PLAN may, upon written notice, increase the interest rate stipulated in this note at any time depending on prevailing conditions. I/WE hereby expressly consent to any extensions or renewals hereof for a portion or whole of the principal without notice to the other(s), and in such a case our liability shall remain joint and several.1avvphi1 In case collection is made by or through an attorney, I/WE jointly and severally agree to pay ten percent (10%) of the amount due on this note (but in no case less than P200.00) as and for attorney’s fees in addition to expenses and costs of suit. In case of judicial execution, I/WE hereby jointly and severally waive our rights under the provisions of Rule 39, Section 12 of the Rules of Court.15 In ruling for HSBCL-SRP, we apply the first paragraph of Article 1179 of the Civil Code: Art. 1179. Every obligation whose performance does not depend upon a future or uncertain event, or upon a past event unknown to the parties, is demandable at once. x x x. (Emphasis supplied.)

We affirm the findings of the MeTC and the RTC that there is no date of payment indicated in the Promissory Notes. The RTC is correct in ruling that since the Promissory Notes do not contain a period, HSBCL-SRP has the right to demand immediate payment. Article 1179 of the Civil Code applies. The spouses Broqueza’s obligation to pay HSBCL-SRP is a pure obligation. The fact that HSBCL-SRP was content with the prior monthly check-off from Editha Broqueza’s salary is of no moment. Once Editha Broqueza defaulted in her monthly payment, HSBCL-SRP made a demand to enforce a pure obligation. In their Answer, the spouses Broqueza admitted that prior to Editha Broqueza’s dismissal from HSBC in December 1993, she "religiously paid the loan amortizations, which HSBC collected through payroll check-off."16A definite amount is paid to HSBCL-SRP on a specific date. Editha Broqueza authorized HSBCL-SRP to make deductions from her payroll until her loans are fully paid. Editha Broqueza, however, defaulted in her monthly loan payment due to her dismissal. Despite the spouses Broqueza’s protestations, the payroll deduction is merely a convenient mode of payment and not the sole source of payment for the loans. HSBCL-SRP never agreed that the loans will be paid only through salary deductions. Neither did HSBCL-SRP agree that if Editha Broqueza ceases to be an employee of HSBC, her obligation to pay the loans will be suspended. HSBCL-SRP can immediately demand payment of the loans at anytime because the obligation to pay has no period. Moreover, the spouses Broqueza have already incurred in default in paying the monthly installments. Finally, the enforcement of a loan agreement involves "debtor-creditor relations founded on contract and does not in any way concern employee relations. As such it should be enforced through a separate civil action in the regular courts and not before the Labor Arbiter."17 WHEREFORE, we GRANT the petition. The Decision of the Court of Appeals in CA-G.R. SP No. 62685 promulgated on 30 March 2006 is REVERSED and SET ASIDE. The decision of Branch 139 of the Regional Trial Court of Makati City in Civil Case No. 00-787, as well as the decision of Branch 61 of the Metropolitan Trial Court of Makati City in Civil Case No. 52400 against the spouses Bienvenido and Editha Broqueza, are AFFIRMED. Costs against respondents. SO ORDERED. G.R. No. 172013 October 2, 2009 PATRICIA HALAGUEÑA, MA. ANGELITA L. PULIDO, MA. TERESITA P. SANTIAGO, MARIANNE V. KATINDIG, BERNADETTE A. CABALQUINTO, LORNA B. TUGAS, MARY CHRISTINE A. VILLARETE, CYNTHIA A. STEHMEIER, ROSE ANNA G. VICTA, NOEMI R. CRESENCIO, and other flight attendants of PHILIPPINE AIRLINES, Petitioners, vs. PHILIPPINE AIRLINES INCORPORATED, Respondent. D E C I S I O N PERALTA, J.: Before this Court is a petition for review on certiorari under Rule 45 of the Rules of Court seeking to annul and set aside the Decision1 and the Resolution2 of the Court of Appeals (CA) in CA-G.R. SP. No. 86813. Petitioners were employed as female flight attendants of respondent Philippine Airlines (PAL) on different dates prior to November 22, 1996. They are members of the Flight Attendants and Stewards Association of the Philippines (FASAP), a labor organization certified as the sole and exclusive certified as the sole and exclusive bargaining representative of the flight attendants, flight stewards and pursers of respondent. On July 11, 2001, respondent and FASAP entered into a Collective Bargaining Agreement3 incorporating the terms and conditions of their agreement for the years 2000 to 2005, hereinafter referred to as PAL-FASAP CBA. Section 144, Part A of the PAL-FASAP CBA, provides that: A. For the Cabin Attendants hired before 22 November 1996: x x x x 3. Compulsory Retirement

Subject to the grooming standards provisions of this Agreement, compulsory retirement shall be fifty-five (55) for females and sixty (60) for males. x x x. In a letter dated July 22, 2003,4 petitioners and several female cabin crews manifested that the aforementioned CBA provision on compulsory retirement is discriminatory, and demanded for an equal treatment with their male counterparts. This demand was reiterated in a letter5 by petitioners' counsel addressed to respondent demanding the removal of gender discrimination provisions in the coming re-negotiations of the PAL-FASAP CBA. On July 12, 2004, Robert D. Anduiza, President of FASAP submitted their 2004-2005 CBA proposals6 and manifested their willingness to commence the collective bargaining negotiations between the management and the association, at the soonest possible time. On July 29, 2004, petitioners filed a Special Civil Action for Declaratory Relief with Prayer for the Issuance of Temporary Restraining Order and Writ of Preliminary Injunction7 with the Regional Trial Court (RTC) of Makati City, Branch 147, docketed as Civil Case No. 04-886, against respondent for the invalidity of Section 144, Part A of the PAL-FASAP CBA. The RTC set a hearing on petitioners' application for a TRO and, thereafter, required the parties to submit their respective memoranda. On August 9, 2004, the RTC issued an Order8 upholding its jurisdiction over the present case. The RTC reasoned that: In the instant case, the thrust of the Petition is Sec. 144 of the subject CBA which is allegedly discriminatory as it discriminates against female flight attendants, in violation of the Constitution, the Labor Code, and the CEDAW. The allegations in the Petition do not make out a labor dispute arising from employer-employee relationship as none is shown to exist. This case is not directed specifically against respondent arising from any act of the latter, nor does it involve a claim against the respondent. Rather, this case seeks a declaration of the nullity of the questioned provision of the CBA, which is within the Court's competence, with the allegations in the Petition constituting the bases for such relief sought. The RTC issued a TRO on August 10, 2004,9 enjoining the respondent for implementing Section 144, Part A of the PAL-FASAP CBA. The respondent filed an omnibus motion10 seeking reconsideration of the order overruling its objection to the jurisdiction of the RTC the lifting of the TRO. It further prayed that the (1) petitioners' application for the issuance of a writ of preliminary injunction be denied; and (2) the petition be dismissed or the proceedings in this case be suspended. On September 27, 2004, the RTC issued an Order11 directing the issuance of a writ of preliminary injunction enjoining the respondent or any of its agents and representatives from further implementing Sec. 144, Part A of the PAL-FASAP CBA pending the resolution of the case. Aggrieved, respondent, on October 8, 2004, filed a Petition for Certiorari and Prohibition with Prayer for a Temporary Restraining Order and Writ of Preliminary Injunction12 with the Court of Appeals (CA) praying that the order of the RTC, which denied its objection to its jurisdiction, be annuled and set aside for having been issued without and/or with grave abuse of discretion amounting to lack of jurisdiction. The CA rendered a Decision, dated August 31, 2005, granting the respondent's petition, and ruled that: WHEREFORE, the respondent court is by us declared to have NO JURISDICTION OVER THE CASE BELOW and, consequently, all the proceedings, orders and processes it has so far issued therein are ANNULED and SET ASIDE. Respondent court is ordered to DISMISS its Civil Case No. 04-886. SO ORDERED. Petitioner filed a motion for reconsideration,13 which was denied by the CA in its Resolution dated March 7, 2006. Hence, the instant petition assigning the following error: THE COURT OF APPEALS' CONCLUSION THAT THE SUBJECT MATTER IS A LABOR DISPUTE OR GRIEVANCE IS CONTRARY TO LAW AND JURISPRUDENCE. The main issue in this case is whether the RTC has jurisdiction over the petitioners' action challenging the legality or constitutionality of the provisions on the compulsory retirement age contained in the CBA between respondent PAL and FASAP.

Petitioners submit that the RTC has jurisdiction in all civil actions in which the subject of the litigation is incapable of pecuniary estimation and in all cases not within the exclusive jurisdiction of any court, tribunal, person or body exercising judicial or quasi-judicial functions. The RTC has the power to adjudicate all controversies except those expressly witheld from the plenary powers of the court. Accordingly, it has the power to decide issues of constitutionality or legality of the provisions of Section 144, Part A of the PAL-FASAP CBA. As the issue involved is constitutional in character, the labor arbiter or the National Labor Relations Commission (NLRC) has no jurisdiction over the case and, thus, the petitioners pray that judgment be rendered on the merits declaring Section 144, Part A of the PAL-FASAP CBA null and void. Respondent, on the other hand, alleges that the labor tribunals have jurisdiction over the present case, as the controversy partakes of a labor dispute. The dispute concerns the terms and conditions of petitioners' employment in PAL, specifically their retirement age. The RTC has no jurisdiction over the subject matter of petitioners' petition for declaratory relief because the Voluntary Arbitrator or panel of Voluntary Arbitrators have original and exclusive jurisdiction to hear and decide all unresolved grievances arising from the interpretation or implementation of the CBA. Regular courts have no power to set and fix the terms and conditions of employment. Finally, respondent alleged that petitioners' prayer before this Court to resolve their petition for declaratory relief on the merits is procedurally improper and baseless. The petition is meritorious. Jurisdiction of the court is determined on the basis of the material allegations of the complaint and the character of the relief prayed for irrespective of whether plaintiff is entitled to such relief.14 In the case at bar, the allegations in the petition for declaratory relief plainly show that petitioners' cause of action is the annulment of Section 144, Part A of the PAL-FASAP CBA. The pertinent portion of the petition recites: CAUSE OF ACTION 24. Petitioners have the constitutional right to fundamental equality with men under Section 14, Article II, 1987 of the Constitution and, within the specific context of this case, with the male cabin attendants of Philippine Airlines. 26. Petitioners have the statutory right to equal work and employment opportunities with men under Article 3, Presidential Decree No. 442, The Labor Code and, within the specific context of this case, with the male cabin attendants of Philippine Airlines. 27. It is unlawful, even criminal, for an employer to discriminate against women employees with respect to terms and conditions of employment solely on account of their sex under Article 135 of the Labor Code as amended by Republic Act No. 6725 or the Act Strengthening Prohibition on Discrimination Against Women. 28. This discrimination against Petitioners is likewise against the Convention on the Elimination of All Forms of Discrimination Against Women (hereafter, "CEDAW"), a multilateral convention that the Philippines ratified in 1981. The Government and its agents, including our courts, not only must condemn all forms of discrimination against women, but must also implement measures towards its elimination. 29. This case is a matter of public interest not only because of Philippine Airlines' violation of the Constitution and existing laws, but also because it highlights the fact that twenty-three years after the Philippine Senate ratified the CEDAW, discrimination against women continues. 31. Section 114, Part A of the PAL-FASAP 2000-20005 CBA on compulsory retirement from service is invidiously discriminatory against and manifestly prejudicial to Petitioners because, they are compelled to retire at a lower age (fifty-five (55) relative to their male counterparts (sixty (60). 33. There is no reasonable, much less lawful, basis for Philippine Airlines to distinguish, differentiate or classify cabin attendants on the basis of sex and thereby arbitrarily set a lower compulsory retirement age of 55 for Petitioners for the sole reason that they are women. 37. For being patently unconstitutional and unlawful, Section 114, Part A of the PAL-FASAP 2000-2005 CBA must be declared invalid and stricken down to the extent that it discriminates against petitioner.

38. Accordingly, consistent with the constitutional and statutory guarantee of equality between men and women, Petitioners should be adjudged and declared entitled, like their male counterparts, to work until they are sixty (60) years old. PRAYER WHEREFORE, it is most respectfully prayed that the Honorable Court: c. after trial on the merits: (I) declare Section 114, Part A of the PAL-FASAP 2000-2005 CBA INVALID, NULL and VOID to the extent that it discriminates against Petitioners; x x x x From the petitioners' allegations and relief prayed for in its petition, it is clear that the issue raised is whether Section 144, Part A of the PAL-FASAP CBA is unlawful and unconstitutional. Here, the petitioners' primary relief in Civil Case No. 04-886 is the annulment of Section 144, Part A of the PAL-FASAP CBA, which allegedly discriminates against them for being female flight attendants. The subject of litigation is incapable of pecuniary estimation, exclusively cognizable by the RTC, pursuant to Section 19 (1) of Batas Pambansa Blg. 129, as amended.15 Being an ordinary civil action, the same is beyond the jurisdiction of labor tribunals. The said issue cannot be resolved solely by applying the Labor Code. Rather, it requires the application of the Constitution, labor statutes, law on contracts and the Convention on the Elimination of All Forms of Discrimination Against Women,16 and the power to apply and interpret the constitution and CEDAW is within the jurisdiction of trial courts, a court of general jurisdiction. In Georg Grotjahn GMBH & Co. v. Isnani,17 this Court held that not every dispute between an employer and employee involves matters that only labor arbiters and the NLRC can resolve in the exercise of their adjudicatory or quasi-judicial powers. The jurisdiction of labor arbiters and the NLRC under Article 217 of the Labor Code is limited to disputes arising from an employer-employee relationship which can only be resolved by reference to the Labor Code, other labor statutes, or their collective bargaining agreement. Not every controversy or money claim by an employee against the employer or vice-versa is within the exclusive jurisdiction of the labor arbiter. Actions between employees and employer where the employer-employee relationship is merely incidental and the cause of action precedes from a different source of obligation is within the exclusive jurisdiction of the regular court.18 Here, the employer-employee relationship between the parties is merely incidental and the cause of action ultimately arose from different sources of obligation, i.e., the Constitution and CEDAW. Thus, where the principal relief sought is to be resolved not by reference to the Labor Code or other labor relations statute or a collective bargaining agreement but by the general civil law, the jurisdiction over the dispute belongs to the regular courts of justice and not to the labor arbiter and the NLRC. In such situations, resolution of the dispute requires expertise, not in labor management relations nor in wage structures and other terms and conditions of employment, but rather in the application of the general civil law. Clearly, such claims fall outside the area of competence or expertise ordinarily ascribed to labor arbiters and the NLRC and the rationale for granting jurisdiction over such claims to these agencies disappears.19 If We divest the regular courts of jurisdiction over the case, then which tribunal or forum shall determine the constitutionality or legality of the assailed CBA provision? This Court holds that the grievance machinery and voluntary arbitrators do not have the power to determine and settle the issues at hand. They have no jurisdiction and competence to decide constitutional issues relative to the questioned compulsory retirement age. Their exercise of jurisdiction is futile, as it is like vesting power to someone who cannot wield it. In Gonzales v. Climax Mining Ltd.,20 this Court affirmed the jurisdiction of courts over questions on constitutionality of contracts, as the same involves the exercise of judicial power. The Court said: Whether the case involves void or voidable contracts is still a judicial question. It may, in some instances, involve questions of fact especially with regard to the determination of the circumstances of the execution of the contracts. But the resolution of the validity or voidness of the contracts remains a legal or judicial question as it requires the exercise of judicial function. It requires the ascertainment of what laws are applicable to the dispute, the interpretation and application of those laws, and the rendering of a judgment based thereon. Clearly, the dispute is

not a mining conflict. It is essentially judicial. The complaint was not merely for the determination of rights under the mining contracts since the very validity of those contracts is put in issue. In Saura v. Saura, Jr.,21 this Court emphasized the primacy of the regular court's judicial power enshrined in the Constitution that is true that the trend is towards vesting administrative bodies like the SEC with the power to adjudicate matters coming under their particular specialization, to insure a more knowledgeable solution of the problems submitted to them. This would also relieve the regular courts of a substantial number of cases that would otherwise swell their already clogged dockets. But as expedient as this policy may be, it should not deprive the courts of justice of their power to decide ordinary cases in accordance with the general laws that do not require any particular expertise or training to interpret and apply. Otherwise, the creeping take-over by the administrative agencies of the judicial power vested in the courts would render the judiciary virtually impotent in the discharge of the duties assigned to it by the Constitution. To be sure, in Rivera v. Espiritu,22 after Philippine Airlines (PAL) and PAL Employees Association (PALEA) entered into an agreement, which includes the provision to suspend the PAL-PALEA CBA for 10 years, several employees questioned its validity via a petition for certiorari directly to the Supreme Court. They said that the suspension was unconstitutional and contrary to public policy. Petitioners submit that the suspension was inordinately long, way beyond the maximum statutory life of 5 years for a CBA provided for in Article 253-A of the Labor Code. By agreeing to a 10-year suspension, PALEA, in effect, abdicated the workers' constitutional right to bargain for another CBA at the mandated time. In that case, this Court denied the petition for certiorari, ruling that there is available to petitioners a plain, speedy, and adequate remedy in the ordinary course of law. The Court said that while the petition was denominated as one for certiorari and prohibition, its object was actually the nullification of the PAL-PALEA agreement. As such, petitioners' proper remedy is an ordinary civil action for annulment of contract, an action which properly falls under the jurisdiction of the regional trial courts. The change in the terms and conditions of employment, should Section 144 of the CBA be held invalid, is but a necessary and unavoidable consequence of the principal relief sought, i.e., nullification of the alleged discriminatory provision in the CBA. Thus, it does not necessarily follow that a resolution of controversy that would bring about a change in the terms and conditions of employment is a labor dispute, cognizable by labor tribunals. It is unfair to preclude petitioners from invoking the trial court's jurisdiction merely because it may eventually result into a change of the terms and conditions of employment. Along that line, the trial court is not asked to set and fix the terms and conditions of employment, but is called upon to determine whether CBA is consistent with the laws. Although the CBA provides for a procedure for the adjustment of grievances, such referral to the grievance machinery and thereafter to voluntary arbitration would be inappropriate to the petitioners, because the union and the management have unanimously agreed to the terms of the CBA and their interest is unified. In Pantranco North Express, Inc., v. NLRC,23 this Court held that: x x x Hence, only disputes involving the union and the company shall be referred to the grievance machinery or voluntary arbitrators. In the instant case, both the union and the company are united or have come to an agreement regarding the dismissal of private respondents. No grievance between them exists which could be brought to a grievance machinery. The problem or dispute in the present case is between the union and the company on the one hand and some union and non-union members who were dismissed, on the other hand. The dispute has to be settled before an impartial body. The grievance machinery with members designated by the union and the company cannot be expected to be impartial against the dismissed employees. Due process demands that the dismissed workers’ grievances be ventilated before an impartial body. x x x . Applying the same rationale to the case at bar, it cannot be said that the "dispute" is between the union and petitioner company because both have previously agreed upon the provision on

"compulsory retirement" as embodied in the CBA. Also, it was only private respondent on his own who questioned the compulsory retirement. x x x. In the same vein, the dispute in the case at bar is not between FASAP and respondent PAL, who have both previously agreed upon the provision on the compulsory retirement of female flight attendants as embodied in the CBA. The dispute is between respondent PAL and several female flight attendants who questioned the provision on compulsory retirement of female flight attendants. Thus, applying the principle in the aforementioned case cited, referral to the grievance machinery and voluntary arbitration would not serve the interest of the petitioners. Besides, a referral of the case to the grievance machinery and to the voluntary arbitrator under the CBA would be futile because respondent already implemented Section 114, Part A of PAL-FASAP CBA when several of its female flight attendants reached the compulsory retirement age of 55. Further, FASAP, in a letter dated July 12, 2004, addressed to PAL, submitted its association's bargaining proposal for the remaining period of 2004-2005 of the PAL-FASAP CBA, which includes the renegotiation of the subject Section 144. However, FASAP's attempt to change the questioned provision was shallow and superficial, to say the least, because it exerted no further efforts to pursue its proposal. When petitioners in their individual capacities questioned the legality of the compulsory retirement in the CBA before the trial court, there was no showing that FASAP, as their representative, endeavored to adjust, settle or negotiate with PAL for the removal of the difference in compulsory age retirement between its female and male flight attendants, particularly those employed before November 22, 1996. Without FASAP's active participation on behalf of its female flight attendants, the utilization of the grievance machinery or voluntary arbitration would be pointless. The trial court in this case is not asked to interpret Section 144, Part A of the PAL-FASAP CBA. Interpretation, as defined in Black's Law Dictionary, is the art of or process of discovering and ascertaining the meaning of a statute, will, contract, or other written document.24 The provision regarding the compulsory retirement of flight attendants is not ambiguous and does not require interpretation. Neither is there any question regarding the implementation of the subject CBA provision, because the manner of implementing the same is clear in itself. The only controversy lies in its intrinsic validity. Although it is a rule that a contract freely entered between the parties should be respected, since a contract is the law between the parties, said rule is not absolute. In Pakistan International Airlines Corporation v. Ople,25 this Court held that: The principle of party autonomy in contracts is not, however, an absolute principle. The rule in Article 1306, of our Civil Code is that the contracting parties may establish such stipulations as they may deem convenient, "provided they are not contrary to law, morals, good customs, public order or public policy." Thus, counter-balancing the principle of autonomy of contracting parties is the equally general rule that provisions of applicable law, especially provisions relating to matters affected with public policy, are deemed written into the contract. Put a little differently, the governing principle is that parties may not contract away applicable provisions of law especially peremptory provisions dealing with matters heavily impressed with public interest. The law relating to labor and employment is clearly such an area and parties are not at liberty to insulate themselves and their relationships from the impact of labor laws and regulations by simply contracting with each other. Moreover, the relations between capital and labor are not merely contractual. They are so impressed with public interest that labor contracts must yield to the common good.x x x 26 The supremacy of the law over contracts is explained by the fact that labor contracts are not ordinary contracts; these are imbued with public interest and therefore are subject to the police power of the state.27 It should not be taken to mean that retirement provisions agreed upon in the CBA are absolutely beyond the ambit of judicial review and nullification. A CBA, as a labor contract, is not merely contractual in nature but impressed with public interest. If the retirement provisions in the CBA run contrary to law, public morals, or public policy, such provisions may very well be voided.28 Finally, the issue in the petition for certiorari brought before the CA by the respondent was the alleged exercise of grave abuse of discretion of the RTC in taking cognizance of the case for

declaratory relief. When the CA annuled and set aside the RTC's order, petitioners sought relief before this Court through the instant petition for review under Rule 45. A perusal of the petition before Us, petitioners pray for the declaration of the alleged discriminatory provision in the CBA against its female flight attendants. This Court is not persuaded. The rule is settled that pure questions of fact may not be the proper subject of an appeal by certiorari under Rule 45 of the Revised Rules of Court. This mode of appeal is generally limited only to questions of law which must be distinctly set forth in the petition. The Supreme Court is not a trier of facts.29 The question as to whether said Section 114, Part A of the PAL-FASAP CBA is discriminatory or not is a question of fact. This would require the presentation and reception of evidence by the parties in order for the trial court to ascertain the facts of the case and whether said provision violates the Constitution, statutes and treaties. A full-blown trial is necessary, which jurisdiction to hear the same is properly lodged with the the RTC. Therefore, a remand of this case to the RTC for the proper determination of the merits of the petition for declaratory relief is just and proper.1avvphi1 WHEREFORE, the petition is PARTLY GRANTED. The Decision and Resolution of the Court of Appeals, dated August 31, 2005 and March 7, 2006, respectively, in CA-G.R. SP. No. 86813 are REVERSED and SET ASIDE. The Regional Trial Court of Makati City, Branch 147 is DIRECTED to continue the proceedings in Civil Case No. 04-886 with deliberate dispatch. SO ORDERED. G.R. No. 160146 December 11, 2009 LESLIE OKOL, Petitioner, vs. SLIMMERS WORLD INTERNATIONAL, BEHAVIOR MODIFICATIONS, INC., and RONALD JOSEPH MOY,Respondents. D E C I S I O N CARPIO, J.: The Case Before the Court is a petition for review on certiorari1 assailing the Decision2 dated 18 October 2002 and Resolution dated 22 September 2003 of the Court of Appeals in CA-G.R. SP No. 69893, which set aside the Resolutions dated 29 May 2001 and 21 December 2001 of the National Labor Relations Commission (NLRC). The Facts Respondent Slimmers World International operating under the name Behavior Modifications, Inc. (Slimmers World) employed petitioner Leslie Okol (Okol) as a management trainee on 15 June 1992. She rose up the ranks to become Head Office Manager and then Director and Vice President from 1996 until her dismissal on 22 September 1999. On 28 July 1999, prior to Okol’s dismissal, Slimmers World preventively suspended Okol. The suspension arose from the seizure by the Bureau of Customs of seven Precor elliptical machines and seven Precor treadmills belonging to or consigned to Slimmers World. The shipment of the equipment was placed under the names of Okol and two customs brokers for a value less than US$500. For being undervalued, the equipment were seized. On 2 September 1999, Okol received a memorandum that her suspension had been extended from 2 September until 1 October 1999 pending the outcome of the investigation on the Precor equipment importation. On 17 September 1999, Okol received another memorandum from Slimmers World requiring her to explain why no disciplinary action should be taken against her in connection with the equipment seized by the Bureau of Customs. On 19 September 1999, Okol filed her written explanation. However, Slimmers World found Okol’s explanation to be unsatisfactory. Through a letter dated 22 September 1999 signed by its president Ronald Joseph Moy (Moy), Slimmers World terminated Okol’s employment. Okol filed a complaint3 with the Arbitration branch of the NLRC against Slimmers World, Behavior Modifications, Inc. and Moy (collectively called respondents) for illegal suspension, illegal dismissal,

unpaid commissions, damages and attorney’s fees, with prayer for reinstatement and payment of backwages. On 22 February 2000, respondents filed a Motion to Dismiss4 the case with a reservation of their right to file a Position Paper at the proper time. Respondents asserted that the NLRC had no jurisdiction over the subject matter of the complaint. In an Order,5 dated 20 March 2000, the labor arbiter granted the motion to dismiss. The labor arbiter ruled that Okol was the vice-president of Slimmers World at the time of her dismissal. Since it involved a corporate officer, the dispute was an intra-corporate controversy falling outside the jurisdiction of the Arbitration branch. Okol filed an appeal with the NLRC. In a Resolution6 dated 29 May 2001, the NLRC reversed and set aside the labor arbiter’s order. The dispositive portion of the resolution states: WHEREFORE, the Order appealed from is SET ASIDE and REVERSED. A new one is hereby ENTERED ordering respondent Behavior Modification, Inc./Slimmers World International to reinstate complainant Leslie F. Okol to her former position with full back wages which to date stood in the amount of P10,000,000.00 computed from July 28, 1999 to November 28, 2000 until fully reinstated; and the further sum of P1,250,000.00 as indemnity pay plus attorney’s fee equivalent to ten (10%) of the total monetary award. However, should reinstatement be not feasible separation pay equivalent to one month pay per year of service is awarded, a fraction of at least six months considered one whole year. All other claims are dismissed for lack of factual or legal basis. SO ORDERED.7 Respondents filed a Motion for Reconsideration with the NLRC. Respondents contended that the relief prayed for was confined only to the question of jurisdiction. However, the NLRC not only decided the case on the merits but did so in the absence of position papers from both parties. In a Resolution8 dated 21 December 2001, the NLRC denied the motion for lack of merit. Respondents then filed an appeal with the Court of Appeals, docketed as CA-G.R. SP No. 69893. The Ruling of the Court of Appeals In a Decision9 dated 18 October 2002, the appellate court set aside the NLRC’s Resolution dated 29 May 2001 and affirmed the labor arbiter’s Order dated 20 March 2000. The Court of Appeals ruled that the case, being an intra-corporate dispute, falls within the jurisdiction of the regular courts pursuant to Republic Act No. 8799.10 The appellate court added that the NLRC had acted without jurisdiction in giving due course to the complaint and deprived respondents of their right to due process in deciding the case on the merits. Okol filed a Motion for Reconsideration which was denied in a Resolution11 dated 22 September 2003. Hence, the instant petition. The Issue The issue is whether or not the NLRC has jurisdiction over the illegal dismissal case filed by petitioner. The Court’s Ruling The petition lacks merit. Petitioner insists that the Court of Appeals erred in ruling that she was a corporate officer and that the case is an intra-corporate dispute falling within the jurisdiction of the regular courts. Petitioner asserts that even as vice-president, the work that she performed conforms to that of an employee rather than a corporate officer. Mere title or designation in a corporation will not, by itself, determine the existence of an employer-employee relationship. It is the "four-fold" test, namely (1) the power to hire, (2) the payment of wages, (3) the power to dismiss, and (4) the power to control, which must be applied. Petitioner enumerated the instances that she was under the power and control of Moy, Slimmers World’s president: (1) petitioner received salary evidenced by pay slips, (2) Moy deducted Medicare and SSS benefits from petitioner’s salary, and (3) petitioner was dismissed from employment not through a board resolution but by virtue of a letter from Moy. Thus, having shown

that an employer-employee relationship exists, the jurisdiction to hear and decide the case is vested with the labor arbiter and the NLRC. Respondents, on the other hand, maintain that petitioner was a corporate officer at the time of her dismissal from Slimmers World as supported by the General Information Sheet and Director’s Affidavit attesting that petitioner was an officer. Also, the factors cited by petitioner that she was a mere employee do not prove that she was not an officer of Slimmers World. Even the alleged absence of any resolution of the Board of Directors approving petitioner’s termination does not constitute proof that petitioner was not an officer. Respondents assert that petitioner was not only an officer but also a stockholder and director; which facts provide further basis that petitioner’s separation from Slimmers World does not come under the NLRC’s jurisdiction. The issue revolves mainly on whether petitioner was an employee or a corporate officer of Slimmers World. Section 25 of the Corporation Code enumerates corporate officers as the president, secretary, treasurer and such other officers as may be provided for in the by-laws. In Tabang v. NLRC,12 we held that an "office" is created by the charter of the corporation and the officer is elected by the directors or stockholders. On the other hand, an "employee" usually occupies no office and generally is employed not by action of the directors or stockholders but by the managing officer of the corporation who also determines the compensation to be paid to such employee. In the present case, the respondents, in their motion to dismiss filed before the labor arbiter, questioned the jurisdiction of the NLRC in taking cognizance of petitioner’s complaint. In the motion, respondents attached the General Information Sheet13 (GIS) dated 14 April 1998, Minutes14 of the meeting of the Board of Directors dated 14 April 1997 and Secretary’s Certificate,15 and the Amended By-Laws16 dated 1 August 1994 of Slimmers World as submitted to the SEC to show that petitioner was a corporate officer whose rights do not fall within the NLRC’s jurisdiction. The GIS and minutes of the meeting of the board of directors indicated that petitioner was a member of the board of directors, holding one subscribed share of the capital stock, and an elected corporate officer. The relevant portions of the Amended By-Laws of Slimmers World which enumerate the power of the board of directors as well as the officers of the corporation state: Article II The Board of Directors 1. Qualifications and Election – The general management of the corporation shall be vested in a board of five directors who shall be stockholders and who shall be elected annually by the stockholders and who shall serve until the election and qualification of their successors. x x x Article III Officers x x x 4. Vice-President – Like the Chairman of the Board and the President, the Vice-President shall be elected by the Board of Directors from [its] own members. The Vice-President shall be vested with all the powers and authority and is required to perform all the duties of the President during the absence of the latter for any cause. The Vice-President will perform such duties as the Board of Directors may impose upon him from time to time. x x x Clearly, from the documents submitted by respondents, petitioner was a director and officer of Slimmers World. The charges of illegal suspension, illegal dismissal, unpaid commissions, reinstatement and back wages imputed by petitioner against respondents fall squarely within the ambit of intra-corporate disputes. In a number of cases,17 we have held that a corporate officer’s dismissal is always a corporate act, or an intra-corporate controversy which arises between a stockholder and a corporation. The question of remuneration involving a stockholder and officer, not a mere employee, is not a simple labor problem but a matter that comes within the area of

corporate affairs and management and is a corporate controversy in contemplation of the Corporation Code.18 Prior to its amendment, Section 5(c) of Presidential Decree No. 902-A19 (PD 902-A) provided that intra-corporate disputes fall within the jurisdiction of the Securities and Exchange Commission (SEC): Sec. 5. In addition to the regulatory and adjudicative functions of the Securities and Exchange Commission over corporations, partnerships and other forms of associations registered with it as expressly granted under existing laws and decrees, it shall have original and exclusive jurisdiction to hear and decide cases involving: x x x c) Controversies in the election or appointments of directors, trustees, officers or managers of such corporations, partnerships or associations. Subsection 5.2, Section 5 of Republic Act No. 8799, which took effect on 8 August 2000, transferred to regional trial courts the SEC’s jurisdiction over all cases listed in Section 5 of PD 902-A: 5.2. The Commission’s jurisdiction over all cases enumerated under Section 5 of Presidential Decree No. 902-A is hereby transferred to the Courts of general jurisdiction or the appropriate Regional Trial Court. x x x It is a settled rule that jurisdiction over the subject matter is conferred by law.20 The determination of the rights of a director and corporate officer dismissed from his employment as well as the corresponding liability of a corporation, if any, is an intra-corporate dispute subject to the jurisdiction of the regular courts. Thus, the appellate court correctly ruled that it is not the NLRC but the regular courts which have jurisdiction over the present case. WHEREFORE, we DENY the petition. We AFFIRM the 18 October 2002 Decision and 22 September 2003 Resolution of the Court of Appeals in CA-G.R. SP No. 69893. This Decision is without prejudice to petitioner Leslie Okol’s taking recourse to and seeking relief through the appropriate remedy in the proper forum. SO ORDERED. G.R. No. 145587 October 26, 2007 EDI-STAFFBUILDERS INTERNATIONAL, INC., petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and ELEAZAR S. GRAN, respondents. D E C I S I O N VELASCO, JR., J.: The Case This Petition for Review on Certiorari1 seeks to set aside the October 18, 2000 Decision2 of the Court of Appeals (CA) in CA-G.R. SP No. 56120 which affirmed the January 15, 1999 Decision3 and September 30, 1999 Resolution4 rendered by the National Labor Relations Commission (NLRC) (Third Division) in POEA ADJ (L) 94-06-2194, ordering Expertise Search International (ESI), EDI-Staffbuilders International, Inc. (EDI), and Omar Ahmed Ali Bin Bechr Est. (OAB) jointly and severally to pay Eleazar S. Gran (Gran) the amount of USD 16,150.00 as unpaid salaries. The Facts Petitioner EDI is a corporation engaged in recruitment and placement of Overseas Filipino Workers (OFWs).5 ESI is another recruitment agency which collaborated with EDI to process the documentation and deployment of private respondent to Saudi Arabia. Private respondent Gran was an OFW recruited by EDI, and deployed by ESI to work for OAB, in Riyadh, Kingdom of Saudi Arabia.6 It appears that OAB asked EDI through its October 3, 1993 letter for curricula vitae of qualified applicants for the position of "Computer Specialist."7 In a facsimile transmission dated November 29, 1993, OAB informed EDI that, from the applicants' curricula vitae submitted to it for evaluation, it selected Gran for the position of "Computer Specialist." The faxed letter also stated that if Gran agrees to the terms and conditions of employment contained in it, one of which was a monthly salary of SR (Saudi Riyal) 2,250.00 (USD 600.00), EDI may arrange for Gran's immediate dispatch.8

After accepting OAB's offer of employment, Gran signed an employment contract9 that granted him a monthly salary of USD 850.00 for a period of two years. Gran was then deployed to Riyadh, Kingdom of Saudi Arabia on February 7, 1994. Upon arrival in Riyadh, Gran questioned the discrepancy in his monthly salary—his employment contract stated USD 850.00; while his Philippine Overseas Employment Agency (POEA) Information Sheet indicated USD 600.00 only. However, through the assistance of the EDI office in Riyadh, OAB agreed to pay Gran USD 850.00 a month.10 After Gran had been working for about five months for OAB, his employment was terminated through OAB's July 9, 1994 letter,11 on the following grounds: 1. Non-compliance to contract requirements by the recruitment agency primarily on your salary and contract duration. 2. Non-compliance to pre-qualification requirements by the recruitment agency[,] vide OAB letter ref. F-5751-93, dated October 3, 1993.12 3. Insubordination or disobedience to Top Management Order and/or instructions (non-submittal of daily activity reports despite several instructions). On July 11, 1994, Gran received from OAB the total amount of SR 2,948.00 representing his final pay, and on the same day, he executed a Declaration13 releasing OAB from any financial obligation or otherwise, towards him. After his arrival in the Philippines, Gran instituted a complaint, on July 21, 1994, against ESI/EDI, OAB, Country Bankers Insurance Corporation, and Western Guaranty Corporation with the NLRC, National Capital Region, Quezon City, which was docketed as POEA ADJ (L) 94-06-2194 for underpayment of wages/salaries and illegal dismissal. The Ruling of the Labor Arbiter In his February 10, 1998 Decision,14 Labor Arbiter Manuel R. Caday, to whom Gran's case was assigned, ruled that there was neither underpayment nor illegal dismissal. The Labor Arbiter reasoned that there was no underpayment of salaries since according to the POEA-Overseas Contract Worker (OCW) Information Sheet, Gran's monthly salary was USD 600.00, and in his Confirmation of Appointment as Computer Specialist, his monthly basic salary was fixed at SR 2,500.00, which was equivalent to USD 600.00. Arbiter Caday also cited the Declaration executed by Gran, to justify that Gran had no claim for unpaid salaries or wages against OAB. With regard to the issue of illegal dismissal, the Labor Arbiter found that Gran failed to refute EDI's allegations; namely, (1) that Gran did not submit a single activity report of his daily activity as dictated by company policy; (2) that he was not qualified for the job as computer specialist due to his insufficient knowledge in programming and lack of knowledge in ACAD system; (3) that Gran refused to follow management's instruction for him to gain more knowledge of the job to prove his worth as computer specialist; (4) that Gran's employment contract had never been substituted; (5) and that Gran was paid a monthly salary of USD 850.00, and USD 350.00 monthly as food allowance. Accordingly, the Labor Arbiter decided that Gran was validly dismissed from his work due to insubordination, disobedience, and his failure to submit daily activity reports. Thus, on February 10, 1998, Arbiter Caday dismissed Gran's complaint for lack of merit. Dissatisfied, Gran filed an Appeal15 on April 6, 1998 with the NLRC, Third Division. However, it appears from the records that Gran failed to furnish EDI with a copy of his Appeal Memorandum. The Ruling of the NLRC The NLRC held that EDI's seemingly harmless transfer of Gran's contract to ESI is actually "reprocessing," which is a prohibited transaction under Article 34 (b) of the Labor Code. This scheme constituted misrepresentation through the conspiracy between EDI and ESI in misleading Gran and even POEA of the actual terms and conditions of the OFW's employment. In addition, it was found that Gran did not commit any act that constituted a legal ground for dismissal. The alleged non-compliance with contractual stipulations relating to Gran's salary and contract duration, and the absence of pre-qualification requirements cannot be attributed to Gran but to EDI, which dealt directly with OAB. In addition, the charge of insubordination was not

substantiated, and Gran was not even afforded the required notice and investigation on his alleged offenses. Thus, the NLRC reversed the Labor Arbiter's Decision and rendered a new one, the dispositive portion of which reads: WHEREFORE, the assailed decision is SET ASIDE. Respondents Expertise Search International, Inc., EDI Staffbuilders Int'l., Inc. and Omar Ahmed Ali Bin Bechr Est. (OAB) are hereby ordered jointly and severally liable to pay the complainant Eleazar Gran the Philippine peso equivalent at the time of actual payment of SIXTEEN THOUSAND ONE HUNDRED FIFTY US DOLLARS (US$16,150.00) representing his salaries for the unexpired portion of his contract. SO ORDERED.16 Gran then filed a Motion for Execution of Judgment17 on March 29, 1999 with the NLRC and petitioner receiving a copy of this motion on the same date.18 To prevent the execution, petitioner filed an Opposition19 to Gran's motion arguing that the Writ of Execution cannot issue because it was not notified of the appellate proceedings before the NLRC and was not given a copy of the memorandum of appeal nor any opportunity to participate in the appeal. Seeing that the NLRC did not act on Gran's motion after EDI had filed its Opposition, petitioner filed, on August 26, 1999, a Motion for Reconsideration of the NLRC Decision after receiving a copy of the Decision on August 16, 1999.20 The NLRC then issued a Resolution21 denying petitioner's Motion for Reconsideration, ratiocinating that the issues and arguments raised in the motion "had already been amply discussed, considered, and ruled upon" in the Decision, and that there was "no cogent reason or patent or palpable error that warrant any disturbance thereof." Unconvinced of the NLRC's reasoning, EDI filed a Petition for Certiorari before the CA. Petitioner claimed in its petition that the NLRC committed grave abuse of discretion in giving due course to the appeal despite Gran's failure to perfect the appeal. The Ruling of the Court of Appeals The CA subsequently ruled on the procedural and substantive issues of EDI's petition. On the procedural issue, the appellate court held that "Gran's failure to furnish a copy of his appeal memorandum [to EDI was] a mere formal lapse, an excusable neglect and not a jurisdictional defect which would justify the dismissal of his appeal."22 The court also held that petitioner EDI failed to prove that private respondent was terminated for a valid cause and in accordance with due process; and that Gran's Declaration releasing OAB from any monetary obligation had no force and effect. The appellate court ratiocinated that EDI had the burden of proving Gran's incompetence; however, other than the termination letter, no evidence was presented to show how and why Gran was considered to be incompetent. The court held that since the law requires the recruitment agencies to subject OFWs to trade tests before deployment, Gran must have been competent and qualified; otherwise, he would not have been hired and deployed abroad. As for the charge of insubordination and disobedience due to Gran's failure to submit a "Daily Activity Report," the appellate court found that EDI failed to show that the submission of the "Daily Activity Report" was a part of Gran's duty or the company's policy. The court also held that even if Gran was guilty of insubordination, he should have just been suspended or reprimanded, but not dismissed. The CA also held that Gran was not afforded due process, given that OAB did not abide by the twin notice requirement. The court found that Gran was terminated on the same day he received the termination letter, without having been apprised of the bases of his dismissal or afforded an opportunity to explain his side. Finally, the CA held that the Declaration signed by Gran did not bar him from demanding benefits to which he was entitled. The appellate court found that the Declaration was in the form of a quitclaim, and as such is frowned upon as contrary to public policy especially where the monetary consideration given in the Declaration was very much less than what he was legally entitled to—his backwages amounting to USD 16,150.00.

As a result of these findings, on October 18, 2000, the appellate court denied the petition to set aside the NLRC Decision. Hence, this instant petition is before the Court. The Issues Petitioner raises the following issues for our consideration: I. WHETHER THE FAILURE OF GRAN TO FURNISH A COPY OF HIS APPEAL MEMORANDUM TO PETITIONER EDI WOULD CONSTITUTE A JURISDICTIONAL DEFECT AND A DEPRIVATION OF PETITIONER EDI'S RIGHT TO DUE PROCESS AS WOULD JUSTIFY THE DISMISSAL OF GRAN'S APPEAL. II. WHETHER PETITIONER EDI HAS ESTABLISHED BY WAY OF SUBSTANTIAL EVIDENCE THAT GRAN'S TERMINATION WAS JUSTIFIABLE BY REASON OF INCOMPETENCE. COROLLARY HERETO, WHETHER THE PRIETO VS. NLRC RULING, AS APPLIED BY THE COURT OF APPEALS, IS APPLICABLE IN THE INSTANT CASE. III. WHETHER PETITIONER HAS ESTABLISHED BY WAY OF SUBSTANTIAL EVIDENCE THAT GRAN'S TERMINATION WAS JUSTIFIABLE BY REASON OF INSUBORDINATION AND DISOBEDIENCE. IV. WHETHER GRAN WAS AFFORDED DUE PROCESS PRIOR TO TERMINATION. V. WHETHER GRAN IS ENTITLED TO BACKWAGES FOR THE UNEXPIRED PORTION OF HIS CONTRACT.23 The Court's Ruling The petition lacks merit except with respect to Gran's failure to furnish EDI with his Appeal Memorandum filed with the NLRC. First Issue: NLRC's Duty is to Require Respondent to Provide Petitioner a Copy of the Appeal Petitioner EDI claims that Gran's failure to furnish it a copy of the Appeal Memorandum constitutes a jurisdictional defect and a deprivation of due process that would warrant a rejection of the appeal. This position is devoid of merit. In a catena of cases, it was ruled that failure of appellant to furnish a copy of the appeal to the adverse party is not fatal to the appeal. In Estrada v. National Labor Relations Commission,24 this Court set aside the order of the NLRC which dismissed an appeal on the sole ground that the appellant did not furnish the appellee a memorandum of appeal contrary to the requirements of Article 223 of the New Labor Code and Section 9, Rule XIII of its Implementing Rules and Regulations. Also, in J.D. Magpayo Customs Brokerage Corp. v. NLRC, the order of dismissal of an appeal to the NLRC based on the ground that "there is no showing whatsoever that a copy of the appeal was served by the appellant on the appellee"25was annulled. The Court ratiocinated as follows: The failure to give a copy of the appeal to the adverse party was a mere formal lapse, an excusable neglect. Time and again We have acted on petitions to review decisions of the Court of Appeals even in the absence of proof of service of a copy thereof to the Court of Appeals as required by Section 1 of Rule 45, Rules of Court. We act on the petitions and simply require the petitioners to comply with the rule.26 (Emphasis supplied.) The J.D. Magpayo ruling was reiterated in Carnation Philippines Employees Labor Union-FFW v. National Labor Relations Commission,27 Pagdonsalan v. NLRC,28 and in Sunrise Manning Agency, Inc. v. NLRC.29 Thus, the doctrine that evolved from these cases is that failure to furnish the adverse party with a copy of the appeal is treated only as a formal lapse, an excusable neglect, and hence, not a jurisdictional defect. Accordingly, in such a situation, the appeal should not be dismissed; however, it should not be given due course either. As enunciated in J.D. Magpayo, the duty that is imposed on the NLRC, in such a case, is to require the appellant to comply with the rule that the opposing party should be provided with a copy of the appeal memorandum. While Gran's failure to furnish EDI with a copy of the Appeal Memorandum is excusable, the abject failure of the NLRC to order Gran to furnish EDI with the Appeal Memorandum constitutes grave abuse of discretion. The records reveal that the NLRC discovered that Gran failed to furnish EDI a copy of the Appeal Memorandum. The NLRC then ordered Gran to present proof of service. In compliance with the

order, Gran submitted a copy of Camp Crame Post Office's list of mail/parcels sent on April 7, 1998.30 The post office's list shows that private respondent Gran sent two pieces of mail on the same date: one addressed to a certain Dan O. de Guzman of Legaspi Village, Makati; and the other appears to be addressed to Neil B. Garcia (or Gran),31 of Ermita, Manila—both of whom are not connected with petitioner. This mailing list, however, is not a conclusive proof that EDI indeed received a copy of the Appeal Memorandum. Sec. 5 of the NLRC Rules of Procedure (1990) provides for the proof and completeness of service in proceedings before the NLRC: Section 5.32 Proof and completeness of service.—The return is prima facie proof of the facts indicated therein.Service by registered mail is complete upon receipt by the addressee or his agent; but if the addressee fails to claim his mail from the post office within five (5) days from the date of first notice of the postmaster, service shall take effect after such time. (Emphasis supplied.) Hence, if the service is done through registered mail, it is only deemed complete when the addressee or his agent received the mail or after five (5) days from the date of first notice of the postmaster. However, the NLRC Rules do not state what would constitute proper proof of service. Sec. 13, Rule 13 of the Rules of Court, provides for proofs of service: Section 13. Proof of service.—Proof of personal service shall consist of a written admission of the party served or the official return of the server, or the affidavit of the party serving, containing a full statement of the date, place and manner of service. If the service is by ordinary mail, proof thereof shall consist of an affidavit of the person mailing of facts showing compliance with section 7 of this Rule. If service is made by registered mail, proof shall be made by such affidavit and registry receipt issued by the mailing office. The registry return card shall be filed immediately upon its receipt by the sender, or in lieu thereof the unclaimed letter together with the certified or sworn copy of the notice given by the postmaster to the addressee (emphasis supplied). Based on the foregoing provision, it is obvious that the list submitted by Gran is not conclusive proof that he had served a copy of his appeal memorandum to EDI, nor is it conclusive proof that EDI received its copy of the Appeal Memorandum. He should have submitted an affidavit proving that he mailed the Appeal Memorandum together with the registry receipt issued by the post office; afterwards, Gran should have immediately filed the registry return card. Hence, after seeing that Gran failed to attach the proof of service, the NLRC should not have simply accepted the post office's list of mail and parcels sent; but it should have required Gran to properly furnish the opposing parties with copies of his Appeal Memorandum as prescribed in J.D. Magpayo and the other cases. The NLRC should not have proceeded with the adjudication of the case, as this constitutes grave abuse of discretion. The glaring failure of NLRC to ensure that Gran should have furnished petitioner EDI a copy of the Appeal Memorandum before rendering judgment reversing the dismissal of Gran's complaint constitutes an evasion of the pertinent NLRC Rules and established jurisprudence. Worse, this failure deprived EDI of procedural due process guaranteed by the Constitution which can serve as basis for the nullification of proceedings in the appeal before the NLRC. One can only surmise the shock and dismay that OAB, EDI, and ESI experienced when they thought that the dismissal of Gran's complaint became final, only to receive a copy of Gran's Motion for Execution of Judgment which also informed them that Gran had obtained a favorable NLRC Decision. This is not level playing field and absolutely unfair and discriminatory against the employer and the job recruiters. The rights of the employers to procedural due process cannot be cavalierly disregarded for they too have rights assured under the Constitution. However, instead of annulling the dispositions of the NLRC and remanding the case for further proceedings we will resolve the petition based on the records before us to avoid a protracted litigation.33 The second and third issues have a common matter—whether there was just cause for Gran's dismissal—hence, they will be discussed jointly. Second and Third Issues: Whether Gran's dismissal is justifiable by reason of incompetence, insubordination, and disobedience

In cases involving OFWs, the rights and obligations among and between the OFW, the local recruiter/agent, and the foreign employer/principal are governed by the employment contract. A contract freely entered into is considered law between the parties; and hence, should be respected. In formulating the contract, the parties may establish such stipulations, clauses, terms and conditions as they may deem convenient, provided they are not contrary to law, morals, good customs, public order, or public policy.34 In the present case, the employment contract signed by Gran specifically states that Saudi Labor Laws will govern matters not provided for in the contract (e.g. specific causes for termination, termination procedures, etc.). Being the law intended by the parties (lex loci intentiones) to apply to the contract, Saudi Labor Laws should govern all matters relating to the termination of the employment of Gran. In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of proving the foreign law. The foreign law is treated as a question of fact to be properly pleaded and proved as the judge or labor arbiter cannot take judicial notice of a foreign law. He is presumed to know only domestic or forum law.35 Unfortunately for petitioner, it did not prove the pertinent Saudi laws on the matter; thus, the International Law doctrine ofpresumed-identity approach or processual presumption comes into play.36 Where a foreign law is not pleaded or, even if pleaded, is not proved, the presumption is that foreign law is the same as ours.37 Thus, we apply Philippine labor laws in determining the issues presented before us. Petitioner EDI claims that it had proven that Gran was legally dismissed due to incompetence and insubordination or disobedience. This claim has no merit. In illegal dismissal cases, it has been established by Philippine law and jurisprudence that the employer should prove that the dismissal of employees or personnel is legal and just. Section 33 of Article 277 of the Labor Code38 states that: ART. 277. MISCELLANEOUS PROVISIONS39 (b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the workers to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission.The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. x x x In many cases, it has been held that in termination disputes or illegal dismissal cases, the employer has the burden of proving that the dismissal is for just and valid causes; and failure to do so would necessarily mean that the dismissal was not justified and therefore illegal.40 Taking into account the character of the charges and the penalty meted to an employee, the employer is bound to adduce clear, accurate, consistent, and convincing evidence to prove that the dismissal is valid and legal.41 This is consistent with the principle of security of tenure as guaranteed by the Constitution and reinforced by Article 277 (b) of the Labor Code of the Philippines.42 In the instant case, petitioner claims that private respondent Gran was validly dismissed for just cause, due to incompetence and insubordination or disobedience. To prove its allegations, EDI submitted two letters as evidence. The first is the July 9, 1994 termination letter,43 addressed to Gran, from Andrea E. Nicolaou, Managing Director of OAB. The second is an unsigned April 11, 1995 letter44 from OAB addressed to EDI and ESI, which outlined the reasons why OAB had terminated Gran's employment. Petitioner claims that Gran was incompetent for the Computer Specialist position because he had "insufficient knowledge in programming and zero knowledge of [the] ACAD system."45 Petitioner

also claims that Gran was justifiably dismissed due to insubordination or disobedience because he continually failed to submit the required "Daily Activity Reports."46However, other than the abovementioned letters, no other evidence was presented to show how and why Gran was considered incompetent, insubordinate, or disobedient. Petitioner EDI had clearly failed to overcome the burden of proving that Gran was validly dismissed. Petitioner's imputation of incompetence on private respondent due to his "insufficient knowledge in programming and zero knowledge of the ACAD system" based only on the above mentioned letters, without any other evidence, cannot be given credence. An allegation of incompetence should have a factual foundation. Incompetence may be shown by weighing it against a standard, benchmark, or criterion. However, EDI failed to establish any such bases to show how petitioner found Gran incompetent. In addition, the elements that must concur for the charge of insubordination or willful disobedience to prosper were not present. In Micro Sales Operation Network v. NLRC, we held that: For willful disobedience to be a valid cause for dismissal, the following twin elements must concur: (1) the employee's assailed conduct must have been willful, that is, characterized by a wrongful and perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to the employee and must pertain to the duties which he had been engaged to discharge.47 EDI failed to discharge the burden of proving Gran's insubordination or willful disobedience. As indicated by the second requirement provided for in Micro Sales Operation Network, in order to justify willful disobedience, we must determine whether the order violated by the employee is reasonable, lawful, made known to the employee, and pertains to the duties which he had been engaged to discharge. In the case at bar, petitioner failed to show that the order of the company which was violated—the submission of "Daily Activity Reports"—was part of Gran's duties as a Computer Specialist. Before the Labor Arbiter, EDI should have provided a copy of the company policy, Gran's job description, or any other document that would show that the "Daily Activity Reports" were required for submission by the employees, more particularly by a Computer Specialist. Even though EDI and/or ESI were merely the local employment or recruitment agencies and not the foreign employer, they should have adduced additional evidence to convincingly show that Gran's employment was validly and legally terminated. The burden devolves not only upon the foreign-based employer but also on the employment or recruitment agency for the latter is not only an agent of the former, but is also solidarily liable with the foreign principal for any claims or liabilities arising from the dismissal of the worker.48 Thus, petitioner failed to prove that Gran was justifiably dismissed due to incompetence, insubordination, or willful disobedience. Petitioner also raised the issue that Prieto v. NLRC,49 as used by the CA in its Decision, is not applicable to the present case. In Prieto, this Court ruled that "[i]t is presumed that before their deployment, the petitioners were subjected to trade tests required by law to be conducted by the recruiting agency to insure employment of only technically qualified workers for the foreign principal."50 The CA, using the ruling in the said case, ruled that Gran must have passed the test; otherwise, he would not have been hired. Therefore, EDI was at fault when it deployed Gran who was allegedly "incompetent" for the job. According to petitioner, the Prieto ruling is not applicable because in the case at hand, Gran misrepresented himself in his curriculum vitae as a Computer Specialist; thus, he was not qualified for the job for which he was hired. We disagree. The CA is correct in applying Prieto. The purpose of the required trade test is to weed out incompetent applicants from the pool of available workers. It is supposed to reveal applicants with false educational backgrounds, and expose bogus qualifications. Since EDI deployed Gran to Riyadh, it can be presumed that Gran had passed the required trade test and that Gran is qualified for the job. Even if there was no objective trade test done by EDI, it was still EDI's responsibility to

subject Gran to a trade test; and its failure to do so only weakened its position but should not in any way prejudice Gran. In any case, the issue is rendered moot and academic because Gran's incompetency is unproved. Fourth Issue: Gran was not Afforded Due Process As discussed earlier, in the absence of proof of Saudi laws, Philippine Labor laws and regulations shall govern the relationship between Gran and EDI. Thus, our laws and rules on the requisites of due process relating to termination of employment shall apply. Petitioner EDI claims that private respondent Gran was afforded due process, since he was allowed to work and improve his capabilities for five months prior to his termination.51 EDI also claims that the requirements of due process, as enunciated in Santos, Jr. v. NLRC,52 and Malaya Shipping Services, Inc. v. NLRC,53 cited by the CA in its Decision, were properly observed in the present case. This position is untenable. In Agabon v. NLRC,54 this Court held that: Procedurally, (1) if the dismissal is based on a just cause under Article 282, the employer must give the employee two written notices and a hearing or opportunity to be heard if requested by the employee before terminating the employment: a notice specifying the grounds for which dismissal is sought a hearing or an opportunity to be heard and after hearing or opportunity to be heard, a notice of the decision to dismiss; and (2) if the dismissal is based on authorized causes under Articles 283 and 284, the employer must give the employee and the Department of Labor and Employment written notices 30 days prior to the effectivity of his separation. Under the twin notice requirement, the employees must be given two (2) notices before their employment could be terminated: (1) a first notice to apprise the employees of their fault, and (2) a second notice to communicate to the employees that their employment is being terminated. In between the first and second notice, the employees should be given a hearing or opportunity to defend themselves personally or by counsel of their choice.55 A careful examination of the records revealed that, indeed, OAB's manner of dismissing Gran fell short of the two notice requirement. While it furnished Gran the written notice informing him of his dismissal, it failed to furnish Gran the written notice apprising him of the charges against him, as prescribed by the Labor Code.56 Consequently, he was denied the opportunity to respond to said notice. In addition, OAB did not schedule a hearing or conference with Gran to defend himself and adduce evidence in support of his defenses. Moreover, the July 9, 1994 termination letter was effective on the same day. This shows that OAB had already condemned Gran to dismissal, even before Gran was furnished the termination letter. It should also be pointed out that OAB failed to give Gran the chance to be heard and to defend himself with the assistance of a representative in accordance with Article 277 of the Labor Code. Clearly, there was no intention to provide Gran with due process. Summing up, Gran was notified and his employment arbitrarily terminated on the same day, through the same letter, and for unjustified grounds. Obviously, Gran was not afforded due process. Pursuant to the doctrine laid down in Agabon,57 an employer is liable to pay nominal damages as indemnity for violating the employee's right to statutory due process. Since OAB was in breach of the due process requirements under the Labor Code and its regulations, OAB, ESI, and EDI, jointly and solidarily, are liable to Gran in the amount of PhP 30,000.00 as indemnity. Fifth and Last Issue: Gran is Entitled to Backwages We reiterate the rule that with regard to employees hired for a fixed period of employment, in cases arising before the effectivity of R.A. No. 804258 (Migrant Workers and Overseas Filipinos Act) on August 25, 1995, that when the contract is for a fixed term and the employees are dismissed without just cause, they are entitled to the payment of their salaries corresponding to the unexpired portion of their contract.59 On the other hand, for cases arising after the effectivity of R.A. No. 8042, when the termination of employment is without just, valid or authorized cause as defined by law or contract, the worker shall be entitled to the full reimbursement of his placement fee with interest of twelve percent (12%) per annum, plus his salaries for the unexpired portion of his employment contract or for three (3) months for every year of the unexpired term whichever is less.60

In the present case, the employment contract provides that the employment contract shall be valid for a period of two (2) years from the date the employee starts to work with the employer.61 Gran arrived in Riyadh, Saudi Arabia and started to work on February 7, 1994;62 hence, his employment contract is until February 7, 1996. Since he was illegally dismissed on July 9, 1994, before the effectivity of R.A. No. 8042, he is therefore entitled to backwages corresponding to the unexpired portion of his contract, which was equivalent to USD 16,150. Petitioner EDI questions the legality of the award of backwages and mainly relies on the Declaration which is claimed to have been freely and voluntarily executed by Gran. The relevant portions of the Declaration are as follows: I, ELEAZAR GRAN (COMPUTER SPECIALIST) AFTER RECEIVING MY FINAL SETTLEMENT ON THIS DATE THE AMOUNT OF: S.R. 2,948.00 (SAUDI RIYALS TWO THOUSAND NINE HUNDRED FORTY EIGHT ONLY) REPRESENTING COMPLETE PAYMENT (COMPENSATION) FOR THE SERVICES I RENDERED TO OAB ESTABLISHMENT. I HEREBY DECLARE THAT OAB EST. HAS NO FINANCIAL OBLIGATION IN MY FAVOUR AFTER RECEIVING THE ABOVE MENTIONED AMOUNT IN CASH. I STATE FURTHER THAT OAB EST. HAS NO OBLIGATION TOWARDS ME IN WHATEVER FORM. I ATTEST TO THE TRUTHFULNESS OF THIS STATEMENT BY AFFIXING MY SIGNATURE VOLUNTARILY. SIGNED. ELEAZAR GRAN Courts must undertake a meticulous and rigorous review of quitclaims or waivers, more particularly those executed by employees. This requirement was clearly articulated by Chief Justice Artemio V. Panganiban in Land and Housing Development Corporation v. Esquillo: Quitclaims, releases and other waivers of benefits granted by laws or contracts in favor of workers should be strictly scrutinized to protect the weak and the disadvantaged. The waivers should be carefully examined, in regard not only to the words and terms used, but also the factual circumstances under which they have been executed.63 (Emphasis supplied.) This Court had also outlined in Land and Housing Development Corporation, citing Periquet v. NLRC,64 the parameters for valid compromise agreements, waivers, and quitclaims: Not all waivers and quitclaims are invalid as against public policy. If the agreement was voluntarily entered into and represents a reasonable settlement, it is binding on the parties and may not later be disowned simply because of a change of mind. It is only where there is clear proof that the waiver was wangled from an unsuspecting or gullible person, or the terms of settlement are unconscionable on its face, that the law will step in to annul the questionable transaction. But where it is shown that the person making the waiver did so voluntarily, with full understanding of what he was doing, and the consideration for the quitclaim is credible and reasonable, the transaction must be recognized as a valid and binding undertaking. (Emphasis supplied.) Is the waiver and quitclaim labeled a Declaration valid? It is not. The Court finds the waiver and quitclaim null and void for the following reasons: 1. The salary paid to Gran upon his termination, in the amount of SR 2,948.00, is unreasonably low. As correctly pointed out by the court a quo, the payment of SR 2,948.00 is even lower than his monthly salary of SR 3,190.00 (USD 850.00). In addition, it is also very much less than the USD 16,150.00 which is the amount Gran is legally entitled to get from petitioner EDI as backwages. 2. The Declaration reveals that the payment of SR 2,948.00 is actually the payment for Gran's salary for the services he rendered to OAB as Computer Specialist. If the Declaration is a quitclaim, then the consideration should be much much more than the monthly salary of SR 3,190.00 (USD 850.00)—although possibly less than the estimated Gran's salaries for the remaining duration of his contract and other benefits as employee of OAB. A quitclaim will understandably be lower than the sum total of the amounts and benefits that can possibly be awarded to employees or to be earned for the remainder of the contract period since it is a compromise where the employees will have to forfeit a certain portion of the amounts they are claiming in exchange for the early payment of a compromise amount. The court may however step in when such amount is unconscionably low or

unreasonable although the employee voluntarily agreed to it. In the case of the Declaration, the amount is unreasonably small compared to the future wages of Gran. 3. The factual circumstances surrounding the execution of the Declaration would show that Gran did not voluntarily and freely execute the document. Consider the following chronology of events: a. On July 9, 1994, Gran received a copy of his letter of termination; b. On July 10, 1994, Gran was instructed to depart Saudi Arabia and required to pay his plane ticket;65 c. On July 11, 1994, he signed the Declaration; d. On July 12, 1994, Gran departed from Riyadh, Saudi Arabia; and e. On July 21, 1994, Gran filed the Complaint before the NLRC. The foregoing events readily reveal that Gran was "forced" to sign the Declaration and constrained to receive the amount of SR 2,948.00 even if it was against his will—since he was told on July 10, 1994 to leave Riyadh on July 12, 1994. He had no other choice but to sign the Declaration as he needed the amount of SR 2,948.00 for the payment of his ticket. He could have entertained some apprehensions as to the status of his stay or safety in Saudi Arabia if he would not sign the quitclaim. 4. The court a quo is correct in its finding that the Declaration is a contract of adhesion which should be construed against the employer, OAB. An adhesion contract is contrary to public policy as it leaves the weaker party—the employee—in a "take-it-or-leave-it" situation. Certainly, the employer is being unjust to the employee as there is no meaningful choice on the part of the employee while the terms are unreasonably favorable to the employer.66 Thus, the Declaration purporting to be a quitclaim and waiver is unenforceable under Philippine laws in the absence of proof of the applicable law of Saudi Arabia. In order to prevent disputes on the validity and enforceability of quitclaims and waivers of employees under Philippine laws, said agreements should contain the following: 1. A fixed amount as full and final compromise settlement; 2. The benefits of the employees if possible with the corresponding amounts, which the employees are giving up in consideration of the fixed compromise amount; 3. A statement that the employer has clearly explained to the employee in English, Filipino, or in the dialect known to the employees—that by signing the waiver or quitclaim, they are forfeiting or relinquishing their right to receive the benefits which are due them under the law; and 4. A statement that the employees signed and executed the document voluntarily, and had fully understood the contents of the document and that their consent was freely given without any threat, violence, duress, intimidation, or undue influence exerted on their person. It is advisable that the stipulations be made in English and Tagalog or in the dialect known to the employee. There should be two (2) witnesses to the execution of the quitclaim who must also sign the quitclaim. The document should be subscribed and sworn to under oath preferably before any administering official of the Department of Labor and Employment or its regional office, the Bureau of Labor Relations, the NLRC or a labor attaché in a foreign country. Such official shall assist the parties regarding the execution of the quitclaim and waiver.67 This compromise settlement becomes final and binding under Article 227 of the Labor Code which provides that: [A]ny compromise settlement voluntarily agreed upon with the assistance of the Bureau of Labor Relations or the regional office of the DOLE, shall be final and binding upon the parties and the NLRC or any court "shall not assume jurisdiction over issues involved therein except in case of non-compliance thereof or if there is prima facieevidence that the settlement was obtained through fraud, misrepresentation, or coercion. It is made clear that the foregoing rules on quitclaim or waiver shall apply only to labor contracts of OFWs in the absence of proof of the laws of the foreign country agreed upon to govern said contracts. Otherwise, the foreign laws shall apply. WHEREFORE, the petition is DENIED. The October 18, 2000 Decision in CA-G.R. SP No. 56120 of the Court of Appeals affirming the January 15, 1999 Decision and September 30, 1999 Resolution of the NLRC

is AFFIRMED with the MODIFICATION that petitioner EDI-Staffbuilders International, Inc. shall pay the amount of PhP 30,000.00 to respondent Gran as nominal damages for non-compliance with statutory due process. No costs. SO ORDERED. G.R. No. 178551 October 11, 2010 ATCI OVERSEAS CORPORATION, AMALIA G. IKDAL and MINISTRY OF PUBLIC HEALTH-KUWAITPetitioners, vs. MA. JOSEFA ECHIN, Respondent. D E C I S I O N CARPIO MORALES, J.: Josefina Echin (respondent) was hired by petitioner ATCI Overseas Corporation in behalf of its principal-co-petitioner, the Ministry of Public Health of Kuwait (the Ministry), for the position of medical technologist under a two-year contract, denominated as a Memorandum of Agreement (MOA), with a monthly salary of US$1,200.00. Under the MOA,1 all newly-hired employees undergo a probationary period of one (1) year and are covered by Kuwait’s Civil Service Board Employment Contract No. 2. Respondent was deployed on February 17, 2000 but was terminated from employment on February 11, 2001, she not having allegedly passed the probationary period. As the Ministry denied respondent’s request for reconsideration, she returned to the Philippines on March 17, 2001, shouldering her own air fare. On July 27, 2001, respondent filed with the National Labor Relations Commission (NLRC) a complaint2 for illegal dismissal against petitioner ATCI as the local recruitment agency, represented by petitioner, Amalia Ikdal (Ikdal), and the Ministry, as the foreign principal. By Decision3 of November 29, 2002, the Labor Arbiter, finding that petitioners neither showed that there was just cause to warrant respondent’s dismissal nor that she failed to qualify as a regular employee, held that respondent was illegally dismissed and accordingly ordered petitioners to pay her US$3,600.00, representing her salary for the three months unexpired portion of her contract. On appeal of petitioners ATCI and Ikdal, the NLRC affirmed the Labor Arbiter’s decision by Resolution4 of January 26, 2004. Petitioners’ motion for reconsideration having been denied by Resolution5 of April 22, 2004, they appealed to the Court of Appeals, contending that their principal, the Ministry, being a foreign government agency, is immune from suit and, as such, the immunity extended to them; and that respondent was validly dismissed for her failure to meet the performance rating within the one-year period as required under Kuwait’s Civil Service Laws. Petitioners further contended that Ikdal should not be liable as an officer of petitioner ATCI. By Decision6 of March 30, 2007, the appellate court affirmed the NLRC Resolution. In brushing aside petitioners’ contention that they only acted as agent of the Ministry and that they cannot be held jointly and solidarily liable with it, the appellate court noted that under the law, a private employment agency shall assume all responsibilities for the implementation of the contract of employment of an overseas worker, hence, it can be sued jointly and severally with the foreign principal for any violation of the recruitment agreement or contract of employment. As to Ikdal’s liability, the appellate court held that under Sec. 10 of Republic Act No. 8042, the "Migrant and Overseas Filipinos’ Act of 1995," corporate officers, directors and partners of a recruitment agency may themselves be jointly and solidarily liable with the recruitment agency for money claims and damages awarded to overseas workers. Petitioners’ motion for reconsideration having been denied by the appellate court by Resolution7 of June 27, 2007, the present petition for review on certiorari was filed. Petitioners maintain that they should not be held liable because respondent’s employment contract specifically stipulates that her employment shall be governed by the Civil Service Law and Regulations of Kuwait. They thus conclude that it was patent error for the labor tribunals and the appellate court to apply the Labor Code provisions governing probationary employment in deciding the present case.

Further, petitioners argue that even the Philippine Overseas Employment Act (POEA) Rules relative to master employment contracts (Part III, Sec. 2 of the POEA Rules and Regulations) accord respect to the "customs, practices, company policies and labor laws and legislation of the host country." Finally, petitioners posit that assuming arguendo that Philippine labor laws are applicable, given that the foreign principal is a government agency which is immune from suit, as in fact it did not sign any document agreeing to be held jointly and solidarily liable, petitioner ATCI cannot likewise be held liable, more so since the Ministry’s liability had not been judicially determined as jurisdiction was not acquired over it. The petition fails. Petitioner ATCI, as a private recruitment agency, cannot evade responsibility for the money claims of Overseas Filipino workers (OFWs) which it deploys abroad by the mere expediency of claiming that its foreign principal is a government agency clothed with immunity from suit, or that such foreign principal’s liability must first be established before it, as agent, can be held jointly and solidarily liable. In providing for the joint and solidary liability of private recruitment agencies with their foreign principals, Republic Act No. 8042 precisely affords the OFWs with a recourse and assures them of immediate and sufficient payment of what is due them. Skippers United Pacific v. Maguad8 explains: . . . [T]he obligations covenanted in the recruitment agreement entered into by and between the local agent and its foreign principal are not coterminous with the term of such agreement so that if either or both of the parties decide to end the agreement, the responsibilities of such parties towards the contracted employees under the agreement do not at all end, but the same extends up to and until the expiration of the employment contracts of the employees recruited and employed pursuant to the said recruitment agreement.Otherwise, this will render nugatory the very purpose for which the law governing the employment of workers for foreign jobs abroad was enacted. (emphasis supplied) The imposition of joint and solidary liability is in line with the policy of the state to protect and alleviate the plight of the working class.9 Verily, to allow petitioners to simply invoke the immunity from suit of its foreign principal or to wait for the judicial determination of the foreign principal’s liability before petitioner can be held liable renders the law on joint and solidary liability inutile. As to petitioners’ contentions that Philippine labor laws on probationary employment are not applicable since it was expressly provided in respondent’s employment contract, which she voluntarily entered into, that the terms of her engagement shall be governed by prevailing Kuwaiti Civil Service Laws and Regulations as in fact POEA Rules accord respect to such rules, customs and practices of the host country, the same was not substantiated. Indeed, a contract freely entered into is considered the law between the parties who can establish stipulations, clauses, terms and conditions as they may deem convenient, including the laws which they wish to govern their respective obligations, as long as they are not contrary to law, morals, good customs, public order or public policy. It is hornbook principle, however, that the party invoking the application of a foreign law has the burden of proving the law, under the doctrine of processual presumption which, in this case, petitioners failed to discharge. The Court’s ruling in EDI-Staffbuilders Int’l., v. NLRC10 illuminates: In the present case, the employment contract signed by Gran specifically states that Saudi Labor Laws will govern matters not provided for in the contract (e.g. specific causes for termination, termination procedures, etc.). Being the law intended by the parties (lex loci intentiones) to apply to the contract, Saudi Labor Laws should govern all matters relating to the termination of the employment of Gran. In international law, the party who wants to have a foreign law applied to a dispute or case has the burden of proving the foreign law. The foreign law is treated as a question of fact to be properly pleaded and proved as the judge or labor arbiter cannot take judicial notice of a foreign law. He is presumed to know only domestic or forum law. Unfortunately for petitioner, it did not prove the pertinent Saudi laws on the matter; thus, the International Law doctrine of presumed-identity approach or processual presumption comes into

play. Where a foreign law is not pleaded or, even if pleaded, is not proved, the presumption is that foreign law is the same as ours. Thus, we apply Philippine labor laws in determining the issues presented before us. (emphasis and underscoring supplied) The Philippines does not take judicial notice of foreign laws, hence, they must not only be alleged; they must be proven. To prove a foreign law, the party invoking it must present a copy thereof and comply with Sections 24 and 25 of Rule 132 of the Revised Rules of Court which reads: SEC. 24. Proof of official record. — The record of public documents referred to in paragraph (a) of Section 19, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate that such officer has the custody. If the office in which the record is kept is in a foreign country, the certificate may be made by a secretary of the embassy or legation, consul general, consul, vice consul, or consular agent or by any officer in the foreign service of the Philippines stationed in the foreign country in which the record is kept, and authenticated by the seal of his office. (emphasis supplied) SEC. 25. What attestation of copy must state. — Whenever a copy of a document or record is attested for the purpose of the evidence, the attestation must state, in substance, that the copy is a correct copy of the original, or a specific part thereof, as the case may be. The attestation must be under the official seal of the attesting officer, if there be any, or if he be the clerk of a court having a seal, under the seal of such court. To prove the Kuwaiti law, petitioners submitted the following: MOA between respondent and the Ministry, as represented by ATCI, which provides that the employee is subject to a probationary period of one (1) year and that the host country’s Civil Service Laws and Regulations apply; a translated copy11 (Arabic to English) of the termination letter to respondent stating that she did not pass the probation terms, without specifying the grounds therefor, and a translated copy of the certificate of termination,12 both of which documents were certified by Mr. Mustapha Alawi, Head of the Department of Foreign Affairs-Office of Consular Affairs Inslamic Certification and Translation Unit; and respondent’s letter13 of reconsideration to the Ministry, wherein she noted that in her first eight (8) months of employment, she was given a rating of "Excellent" albeit it changed due to changes in her shift of work schedule. These documents, whether taken singly or as a whole, do not sufficiently prove that respondent was validly terminated as a probationary employee under Kuwaiti civil service laws. Instead of submitting a copy of the pertinent Kuwaiti labor laws duly authenticated and translated by Embassy officials thereat, as required under the Rules, what petitioners submitted were mere certifications attesting only to the correctness of the translations of the MOA and the termination letter which does not prove at all that Kuwaiti civil service laws differ from Philippine laws and that under such Kuwaiti laws, respondent was validly terminated. Thus the subject certifications read: x x x x This is to certify that the herein attached translation/s from Arabic to English/Tagalog and or vice versa was/were presented to this Office for review and certification and the same was/were found to be in order. This Office, however, assumes no responsibility as to the contents of the document/s. This certification is being issued upon request of the interested party for whatever legal purpose it may serve. (emphasis supplied)1avvphi1 Respecting Ikdal’s joint and solidary liability as a corporate officer, the same is in order too following the express provision of R.A. 8042 on money claims, viz: SEC. 10. Money Claims.—Notwithstanding any provision of law to the contrary, the Labor Arbiters of the National Labor Relations Commission (NLRC) shall have the original and exclusive jurisdiction to hear and decide, within ninety (90) calendar days after the filing of the complaint, the claims arising out of an employer-employee relationship or by virtue of any law or contract involving Filipino workers for overseas deployment including claims for actual moral, exemplary and other forms of damages.

The liability of the principal/employer and the recruitment/placement agency for any and all claims under this section shall be joint and several. This provision shall be incorporated in the contract for overseas employment and shall be a condition precedent for its approval. The performance bond to be filed by the recruitment/placement agency, as provided by law, shall be answerable for all money claims or damages that may be awarded to the workers. If the recruitment/placement agency is a juridical being, the corporate officers and directors and partners as the case may be, shall themselves be jointly and solidarily liable with the corporation or partnership for the aforesaid claims and damages. (emphasis and underscoring supplied) WHEREFORE, the petition is DENIED. SO ORDERED. G.R. No. 176700 September 4, 2009 ROMERO MONTEDERAMOS, Petitioner, vs. TRI-UNION INTERNATIONAL CORPORATION, Respondent. D E C I S I O N CARPIO MORALES, J.: Respondent Tri-Union International Corp. (respondent), which markets and distributes Company B products, hired on July 18, 1997 Romero Montederamos (petitioner) as a stockman at its outlet at the Metro Ayala Department Store, Cebu Business Park, Cebu City. By Memorandum of June 27, 2003, respondent suspended petitioner for one month effective July 1, 2003, drawing him to file on July 2, 2003 a Complaint1 for illegal dismissal and non-payment of overtime pay, service incentive leave, allowances and separation pay before the National Labor Relations Commission (NLRC) Regional Arbitration Branch No. VII. By petitioner’s claim, in August 2002, respondent asked him to sign a contract of employment covering five months2 but he refused, knowing that he was already a regular employee; that on June 24, 2003, he informed respondent of his need for a letter of introduction to Metro Ayala since his Metro Ayala Identification Card (I.D.) was due to expire on June 30, 2003; that he was told to return the following day but was unable to do so because he had to accomplish clearance requirements with Metro Ayala; that on June 26, 2003, he repaired to respondent’s office but was told that his supervisor was absent and that the latter’s assistant could not give the letter of introduction by herself; that he later learned that the assistant could and actually did sign letters of introduction for and in behalf of the supervisor;3 and that as his wait for a letter of introduction did not come by June 30, 2003, he realized that respondent had no intention of giving him one and was terminating his employment, hence, his filing on July 2, 2003 of the Complaint against respondent. Upon the other hand, respondent claimed as follows:4 On April 15, 2003, it sent petitioner a Violation Memorandum5 warning him for habitual tardiness, citing his tardiness on February 18, 2003, March 4, 2003, March 18, 2003, and April 1, 2003; and that on June 17, 2003, it sent petitioner a second Violation Memorandum6 for habitual tardiness, citing his tardiness on April 22, 2003, May 6, 2003, May 20, 2003, and June 3, 2003, which Memorandum required him to submit a written explanation therefor, but that petitioner refused to receive it and in fact answered back and walked out on his immediate supervisor, prompting the latter to send him a Memorandum on June 18, 2003 reading: You were given second memorandum last June 17, 2003 with a request of explanation in your part of your habitual tardiness. However, you refuse[d] to sign the memorandum for the said violation. Instead, you answered and walked out from the office before your superior told you to do so. This memo serves as your warning. Another situation that may arise after this memorandum will be a ground for your suspension.7 (Underscoring supplied) Again petitioner refused to receive the third Memorandum. And he failed to submit an explanation behind his habitual tardiness, drawing respondent to send him a June 27, 2003 Memorandum via registered mail suspending him for one month effective July 1, 2003, viz: You are hereby warned to follow all rules and regulations of our company where you are employed, one of these is to attend [the] company meeting scheduled every Tuesday of the week. However, there has been no improvement of your habitual tardiness since our first memorandum

last April 15, 2003. Thereby, you were given a second memo with a request of explanation on your part last June 17, 2003 but you refuse[d] to sign. Instead, you showed insubordination [on] your part by answering back your immediate superior. The same incident took place last June 26, 2003 [sic]. You disrespect our office personnel. This is the third time you did this, first was last April 15, 2003. With these offenses, you are suspended for one month effective July 1, 2003. You will resume work on August 1, 2003. This memo serves as your last warning. Another situation that may arise after this memo will be a ground for your termination.8 (Emphasis and underscoring supplied) Hence, petitioner’s filing on July 2, 2003 of his Complaint. On July 31, 2003, the last day of the 30-day suspension of petitioner, respondent advised petitioner as follows: This is to remind you that your suspension ends this July 31, 2003. You are supposed to report at the office this August 1, 2003 but we are giving you a chance to report on August 11, 2003 at 9 o’clock in the morning. I am hoping [for] your presence on the date mentioned above.9 (Emphasis and underscoring supplied) Petitioner never ever reported for work, however. Finally, respondent claimed that it had paid petitioner overtime pay, allowance, and service incentive leave.10 By Decision11 of November 10, 2003, Labor Arbiter Ernesto F. Carreon, finding that there was neither illegal dismissal nor abandonment, ordered respondent to reinstate petitioner without backwages, and pay him service incentive leave pay in the amount of P3,000.00. Petitioner’s claim for overtime pay was denied as it was unsubstantiated. On appeal, the NLRC,12 by Decision dated February 21, 2005, reversed and set aside the Labor Arbiter’s decision and entered a new one declaring petitioner to have been illegally dismissed. Brushing aside petitioner’s alleged tardiness in 2003 in light of respondent’s failure to present the daily time records of petitioner who had been working for respondent since 1997, the NLRC held that respondent failed to refute petitioner’s allegation that he was made to sign a 5-month contract but that he refused as he had attained regular status. Such refusal of petitioner, the NLRC concluded, precipitated, and ended in his illegal dismissal when respondent denied his request for the issuance of a letter of introduction for the renewal of his Metro Ayala I.D. Noting that "it is to the best interest of complainant that he should no longer be reinstated to his former position," the NLRC granted him backwages and separation pay covering the period July 1, 2003 to 2004, subject to recomputation upon finality of the Decision. Respondent’s Motion for Reconsideration13 having been denied by Resolution14 of July 22, 2005, it appealed via Certiorari to the Court of Appeals. By Decision15 of July 27, 2006, the Court of Appeals reversed and set aside the NLRC decision and reinstated the Labor Arbiter’s decision. The appellate court held that respondent’s June 27, 2003 Memorandum to petitioner suspending him for one month ending July 31, 2003 but later advising him to resume work 10 days later or on August 11, 2003 belied the charge of illegal dismissal. It went on to hold that petitioner’s infractions resulting in his suspension ─ tardiness and refusal to attend company meetings because he was not allegedly paid remuneration ─ were of his own wrongdoings. Respecting petitioner’s claim that his refusal to sign the 5-month contract precipitated his suspension, the appellate court noted that the refusal occurred in August 2002 yet, but the Violation Memoranda were issued to petitioner much later starting April 2003. It thus held that if indeed respondent wanted to terminate the services of petitioner on the basis of such refusal, it could have done so much earlier. Finally, the appellate court held that respondent’s offer of reinstatement to petitioner runs counter to the charge of illegal dismissal. His Motion for Reconsideration16 having been denied by Resolution17 of January 23, 2007, petitioner filed the present Petition for Review on Certiorari,18 insisting that he was illegally/constructively dismissed and not merely suspended by respondent, hence, entitled to separation pay, backwages and other money claims. He particularly highlights the fact that his one

month suspension ended on July 31, 2003 but he was given "a chance to report on August 9(sic), 2003" as amounting to constructive dismissal. The petition is bereft of merit. While the employer bears the burden in illegal dismissal cases to prove that the termination was for valid or authorized cause, the employee must first establish by substantial evidence the fact of dismissal from service.19This petitioner failed to discharge. He, in fact, failed to refute respondent’s claim that it sent him a Violation Memorandum, which was duly received by him on April 15, 2003, and a subsequent Memorandum via registered mail,20 requiring him to explain his habitual tardiness on the therein indicated dates but that he failed to comply therewith. That respondent advised petitioner on July 31, 2003 that he was "supposed to report . . . [the following day], August 1, 2003" but that he was given a chance to report on August 11, 2003 does not, in itself, amount to constructive dismissal. Bare allegations of constructive dismissal, when uncorroborated by the evidence on record, cannot be given credence.21 Constructive dismissal contemplates, among other things, quitting because continued employment is rendered impossible, unreasonable or unlikely, or a demotion in rank or a diminution of pay. It clearly exists when an act of clear discrimination, insensibility or disdain by an employer becomes unbearable to the employee, leaving him with no option but to forego his continued employment.22 Not any of these circumstances exists to call for a ruling that petitioner was constructively dismissed. Respondent’s inability to provide the letter-introduction for the renewal of petitioner’s Metro Ayala I.D. cannot be considered an act of discrimination or insensibility to warrant a finding of constructive dismissal. It bears noting that petitioner’s Metro Ayala I.D. was yet to expire on June 30, 2003. He was, however, by June 27, 2003 Memorandum, suspended effective July 1, 2003. In another vein, petitioner’s failure to report for work after the expiration of the period of his suspension notwithstanding, respondent just the same, by its claim, offered to reinstate him during the mandatory conference and even after receiving the promulgation of the decision of Labor Arbiter, which claim he did not refute.23 Respecting petitioner’s claim for service incentive leave, the Court finds well-taken the Labor Arbiter’s grant thereto. For respondent’s claim of having settled it bears no documentation. As for petitioner’s claim for overtime pay, the same fails, there being no concrete proof that he had indeed rendered overtime service. WHEREFORE, the petition is, in light of the foregoing discussions, DENIED. SO ORDERED.

NATIONAL UNION OF WORKERS IN HOTELS, RESTAURANTS AND ALLIED INDUSTRIES—MANILA PAVILLION HOTEL CHAPTER,Petitioner, - versus - NATIONAL LABOR RELATIONS COMMISSION and ACESITE PHILIPPINES HOTEL CORPORATION, Respondents.

G.R. No. 179402 Present: YNARES-SANTIAGO, J., Chairperson, AUSTRIA-MARTINEZ, CHICO-NAZARIO, NACHURA, and REYES, JJ. Promulgated: September 30, 2008

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x D E C I S I O N CHICO-NAZARIO, J.: This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Decision1dated 30 May 2007 rendered by the Court of Appeals in CA-G.R. SP No. 96171, which affirmed the Resolution2 dated 5 May 2006 of the National Labor Relations Commission (NLRC) in NLRC NCR CC No. 000307-05 NCMB NCR NS 09-199-05, dismissing for lack of merit the complaint for unfair labor practice filed by petitioner National Union of Workers in Hotels, Restaurants and Allied Industries-Manila Pavilion Hotel (NUWHRAIN) against Manila Pavilion Hotel (the Hotel).

Petitioner NUWHRAIN is a legitimate labor organization composed of rank-and-file employees of the Hotel,3 while respondent Acesite Philippines Hotel Corporation is the owner and operator of said Hotel.4 The factual antecedents of the instant Petition are as follows: The Hotel entered into a Collective Bargaining Agreement with HI-MANILA PAVILION HOTEL LABOR UNION (HIMPHLU), the exclusive bargaining agent of the rank-and-file employees of the Hotel. Both parties consented that the representation aspect and other non-economic provisions of the Collective Bargaining Agreement were to be effective for five years or until 30 June 2005; and the economic provisions of the same were to be effective for three years or until 30 June 2003. The parties subsequently re-negotiated the economic provisions of the Collective Bargaining Agreement and extended the term of their effectivity for another two years or until 30 June 2005.5 During the 60-day freedom period which preceded the expiration of the Collective Bargaining Agreement, starting on 1 May 2005 and ending on 30 June 2005, the Hotel and HIMPHLU negotiated the extension of the provisions of the existing Collective Bargaining Agreement for two years, effective 1 July 2005 to 30 June 2007. The parties signed the Memorandum of Agreement on 20 May 2005 and the employees ratified it on 27 May 2005.6 On 21 June 2005, NUWHRAIN was accorded by the Labor Relations Division of the Department of Labor and Employment (DOLE) the status of a legitimate labor organization.7 Thereafter, NUWHRAIN exercised the right to challenge the majority status of the incumbent union, HIMPHLU, by filing a Petition for Certification Election on 28 June 2005.8 On 5 July 2007, the Industrial Relations Division of the DOLE allowed the registration of the Memorandum of Agreement executed between HIMPHLU and the Hotel, extending the effectivity of the existing Collective Bargaining Agreement for another two years.9 After the lapse of the 60-day freedom period, but pending the disposition of the Petition for Certification Election filed by NUWHRAIN, HIMPHLU served the Hotel with a written demand dated 28 July 200510 for the dismissal of 36 employees following their expulsion from HIMPHLU for alleged acts of disloyalty and violation of its Constitution and by-laws. An Investigation Report11 was attached to the said written demand, stating that the 36 employees, who were members of HIMPHLU, joined NUWHRAIN, in violation of Section 2, Article IV of the Collective Bargaining Agreement, which provided for a union security clause that reads: 12 Section 2. DISMISSAL PURSUANT TO UNION SECURITY CLAUSE. Accordingly, failure to join the UNION within the period specified in the immediately preceding section or failure to maintain membership with the UNION in good standing either through resignation or expulsion from the UNION in accordance with the UNION’s Constitution and by-laws due to disloyalty, joining another union or non-payment of UNION dues shall be a ground for the UNION to demand the dismissal from the HOTEL of the employee concerned. The demand shall be accompanied by the UNION’s investigation report and the HOTEL shall act accordingly subject to existing laws and jurisprudence on the matter, provided, however, that the UNION shall hold the HOTEL free and harmless from any and all liabilities that may arise should the dismissed employee question in any manner the dismissal. The HOTEL shall not, however, be compelled to act on any such UNION demand if made within a period of sixty (60) days prior to the expiry date of this agreement. (Emphasis provided) On 1 August 2005, the Hotel issued Disciplinary Action Notices13 (Notices) to the 36 employees identified in the written demand of HIMPHLU. The Notices directed the 36 employees to submit a written explanation for their alleged acts of disloyalty and violation of the union security clause for which HIMPHLU sought their dismissal. The Hotel called the contending unions and the employees concerned for a reconciliatory conference in an attempt to avoid the dismissal of the 36 employees. The reconciliatory conferences facilitated by the Hotel were held on 5 August 2005 and 1 September 2005.14 However, NUWHRAIN proceeded to file a Notice of Strike before the National Conciliation and Mediation Board (NCMB) on 8 September 2005 on the ground of unfair labor practice under Article 248, paragraphs (a) and (b) of the Labor Code.15 The Secretary of Labor intervened and certified the case for compulsory arbitration with the NLRC. The case was docketed as NLRC NCR

CC No. 000307-05 NCMB NCR NS 09-199-05, entitled IN RE: Labor Dispute at Manila Pavilion Hotel.16 NUWHRAIN asserted that the Hotel committed unfair labor practice when it issued the Notices to the 36 employees who switched allegiance from HIMPHLU to NUWHRAIN. During the reconciliatory conference held on 5 August 2005, respondent’s Vice President, Norma Azores, stated her preference to deal with HIMPHLU, while blaming NUWHRAIN for the labor problems of the Hotel. On 1 September 2005, the Resident Manager of the Hotel, Bernardo Corpus, Jr., implored NUWHRAIN’s members to withdraw their Petition for Certification Election and reaffirm their membership in HIMPHLU. The Notices and the statements made by the officers of the respondent and the Hotel were allegedly intended to intimidate and coerce the employees in the exercise of their right to self-organization. NUWHRAIN claimed that it was entitled to moral damages in the amount of P50,000.00 and exemplary damages of P20,000.0017 Respondent countered that it merely complied with its contractual obligations with HIMPHLU when it issued the assailed Notices, and clarified that none of the 36 employees were dismissed by the Hotel. It further denied that respondent’s Vice President Norma Azores and the Hotel’s Resident Manager Bernardo Corpus, Jr. made the statements attributed to them, purportedly expressing their preference for HIMPHLU during the reconciliatory conferences. Thus, respondent insisted that it did not commit unfair labor practice, nor was it liable for moral and exemplary damages.18 In a Resolution19 dated 5 May 2006, the NLRC pronounced that the Hotel was not guilty of unfair labor practice. Firstly, the NLRC adjudged that the execution of the Memorandum of Agreement between respondent and HIMPHLU, extending the effectivity of the existing Collective Bargaining Agreement, was entered into with the view of responding to the employees’ economic needs, and not intended to interfere with or restrain the exercise of the right to self-organization of NUWHRAIN’s members. Secondly, the NLRC determined that the issuance of the Notices directing the 36 employees to explain why they should not be dismissed was in compliance with the Collective Bargaining Agreement provisions regarding the union security clause. Even thereafter, the Hotel had not acted improperly as it did not wrongfully terminate any of the 36 employees. Thirdly, the NLRC interpreted the statements made by the officials of respondent and the Hotel during the reconciliatory conferences – encouraging the withdrawal of the Petition for Certification Election and the reaffirmation by the 36 employees of their membership in HIMPHLU – as proposed solutions to avoid the dismissal of the said employees. The NLRC concluded that these statements did not constitute unfair labor practice for they could not have coerced or influenced either of the contending unions, both of whom did not agree in the suggested course of action or to any other manner of settling the dispute. Finally, the NLRC declared that the claim for moral and exemplary damages of NUWHRAIN lacked sufficient factual and legal bases. NUWHRAIN filed a Motion for Reconsideration of the foregoing NLRC Resolution. It was denied by the NLRC in another Resolution dated 30 June 2006.20 Thus, NUWHRAIN filed a Petition forCertiorari before the Court of Appeals, docketed as C.A. G.R. SP No. 96171. In the meantime, on 16 June 2006, the Certification Election for regular rank and file employees of the Hotel was held, which HIMPHLU won. It was accordingly certified as the exclusive bargaining agent for rank and file employees of the Hotel.21 On 30 May 2007, the Court of Appeals promulgated its Decision22 in C.A. G.R. SP No. 96171, upholding the Resolution dated 5 May 2006 of the NLRC in NLRC NCR CC No. 000307-05 NCMB NCR NS 09-199-05. It declared that the Hotel had acted prudently when it issued the Notices to the 36 employees after HIMPHLU demanded their dismissal. It clarified that these Notices did not amount to the termination of the employees concerned but merely sought their explanation on why the union security clause should not be applied to them. The appellate court also gave credence to the denial by the officers of the respondent and the Hotel that they made statements favoring HIMPHLU over NUWHRAIN during the reconciliatory conferences. The Court of Appeals further noted that the unhampered organization and registration of NUWHRAIN negated its allegation that the Hotel required its employees not to join a labor organization as a condition for their employment.

NUWHRAIN’s Motion for Reconsideration of the aforementioned Decision of the Court of Appeals was denied by the same court in a Resolution dated 24 August 2007.23 Hence, the present Petition, in which NUWHRAIN makes the following assignment of errors: I THE COURT OF APPEALS GAVE MORE PROBATIVE VALUE TO RESPONDENT HOTEL’S GENERAL AND UNSWORN DENIAL VERSUS THAT OF PETITIONER’S SWORN TESTIMONY NARRATING RESPONDENT’S HOTEL’S VIOLATION OF PETITIONER’S RIGHT TO SELF ORGANIZATION. SUCH A RULING CONTRADICTS EXISTING JURISPRUDENCE SUCH AS MASAGANA CONCRETE PRODUCTS INC. V. NLRC, G.R. NO. 106916, SEPTEBMER 3, 1999; JRS BUSINESS CORPORATION V. NLRC, 246 SCRA 445 [1995]; and ASUNCION V. NLRC, 362 SCRA 56 [2001]. II THE COURT OF APPEALS ERRED IN RULING THAT RESPONDENT HOTEL IS NOT GUILTY OF UNFAIR LABOR PRACTICE CONTRARY TO ARTICLE 248 OF THE LABOR CODE AND THE SUPREME COURT’S RULING IN PROGRESSINVE DEVELOPMENT CORPORATION V. CIR, 80 SCRA 434 [1977] and INSULAR LIFE ASSURANCE CO. LTC EMPLOYEES ASSOCIATION-NATU V. THE INSULAR LIFE ASSURANCE CO. LTD., 37 SCRA 244 [1971].24 The instant Petition lacks merit, and must accordingly be denied. NUWHRAIN maintains that the respondent committed unfair labor practice when (1) the Hotel issued the Notices to the 36 employees, former members of HIMPHLU, who switched allegiance to NUWHRAIN; and (2) the officers of the respondent and the Hotel allegedly uttered statements during the reconciliatory conferences indicating their preference for HIMPHLU and their disapproval of NUWHRAIN. This argument is specious. The records clearly show that the Notices were issued after HIMPHLU served the Hotel with a letter dated 28 July 2005, demanding the dismissal of 36 of its former members who joined NUWHRAIN. In its letter, HIMPHLU alleged that it had found these members guilty of disloyalty and demanded their dismissal pursuant to the union security clause in the Collective Bargaining Agreement. Had the Hotel totally ignored this demand, as NUWHRAIN suggests it should have done, the Hotel would have been subjected to a suit for its failure to comply with the terms of the Collective Bargaining Agreement. "Union security" is a generic term which is applied to and comprehends "closed shop," "union shop," "maintenance of membership" or any other form of agreement which imposes upon employees the obligation to acquire or retain union membership as a condition affecting employment.25 Article 248(e) of the Labor Code recognizes the effectivity of a union shop clause: Art. 248. Unfair labor practices of employers. (e) To discriminate in regard to wages, hours of work, and other terms and conditions of employment in order to encourage or discourage membership in any labor organization. Nothing in this Code or in any other law shall prevent the parties from requiring membership in a recognized collective bargaining agent as a condition for employment, except of those employees who are already members of another union at the time of the signing of the collective bargaining agreement x x x. (Emphasis supplied.) The law allows stipulations for "union shop" and "closed shop" as a means of encouraging workers to join and support the union of their choice in the protection of their rights and interests vis-à-vis the employer. By thus promoting unionism, workers are able to negotiate with management on an even playing field and with more persuasiveness than if they were to individually and separately bargain with the employer.26 In Villar v. Inciong,27 this Court held that employees have the right to disaffiliate from their union and form a new organization of their own; however, they must suffer the consequences of their separation from the union under the security clause of the Collective Bargaining Agreement. In the present case, the Collective Bargaining Agreement includes a union security provision.28 To avoid the clear possibility of liability for breaching the union security clause of the Collective Bargaining Agreement and to protect its own interests, the only sensible option left to the Hotel, upon its receipt of the demand of HIMPHLU for the dismissal of the 36 employees, was to conduct its own inquiry so as to make its own findings on whether there was sufficient ground to dismiss

the said employees who defected from HIMPHLU. The issuance by the respondent of the Notices requiring the 36 employees to submit their explanations to the charges against them was the reasonable and logical first step in a fair investigation. It is important to note that the Hotel did not take further steps to terminate the 36 employees. Instead, it arranged for reconciliatory conferences between the contending unions in order to avert the possibility of dismissing the 36 employees for violation of the union security clause of the Collective Bargaining Agreement. This Court, in Malayang Samahan ng Manggagawa sa M. Greenfield v. Ramos29 clearly stated the general rule: the dismissal of an employee by the company pursuant to a labor union’s demand in accordance with a union security agreement does not constitute unfair labor practice. An employer is not considered guilty of unfair labor practice if it merely complied in good faith with the request of the certified union for the dismissal of employees expelled from the union pursuant to the union security clause in the Collective Bargaining Agreement.30 In the case at bar, there is even less possibility of sustaining a finding of guilt for unfair labor practice where respondent did not dismiss the 36 employees, despite the insistence of HIMPHLU, the sole bargaining agent for the rank and file employees of the Hotel, on the basis of the union security clause of the Collective Bargaining Agreement. The only act attributed to the respondent is its issuance of the Notices which, contrary to being an unfair labor practice, even afforded the employees involved a chance to be heard. The cases cited by NUWHRAIN are not applicable to the present case given their diverse factual backgrounds. In Progressive Development Corporation v. Court of Industrial Relations,31 the Court declared the employer guilty of unfair labor practice for singling out its workers who refused to join the employer’s preferred union by not giving them work assignments and regular status, and eventually dismissing said employees. The employer was found guilty of unfair labor practice in Insular Life Assurance Co., Ltd., Employees Association-NATU v. Insular Life Assurance Co., Ltd.,32 for (1) the dismissal of some of its striking employees without even giving them an opportunity to explain their side; and (2) the acts of discrimination, including the delayed reinstatement of striking employees and the offering of bribes, bonuses, and wage increases to loyal employees after refusing to bargain with the union. None of these acts were attributed to the respondent in the present case. NUWHRAIN claimed that during the reconciliatory conferences, respondent’s Vice President Norma Azores expressed her preference to deal with HIMPHLU, while blaming NUWHRAIN for the Hotel’s labor problems; and the Hotel’s Resident Manager Bernardo Corpus, Jr. implored NUWHRAINs’ members to withdraw their Petition for Certification Election and reaffirm their membership in HIMPHLU. Before the Court of Appeals, respondent denied that such statements were made and that the officers of the respondent and the Hotel were merely misquoted. During the reconciliatory conferences, wherein the officers of the respondent and the Hotel acted as mediators, one of the proposals laid on the table to settle the dispute between the unions and preclude the dismissal of the 36 employees was for NUWHRAIN to withdraw its Petition for Certification Election and, in return, for HIMPHLU to re-accept the employees without sanctions. Still, NUWHRAIN asserts that the sworn testimony signed by its six union members that the officers of the respondent and the Hotel did utter the offending statements deserve more credence than the unsworn denial of respondent. NUWHRAIN has the burden of proving its allegation that Norma Azores and Bernardo Corpus, Jr. did make the statements being attributed to them. The burden of proof rests upon the party who asserts the affirmative of an issue.33 And in labor cases, the quantum of proof necessary is substantial evidence, or such amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion,34 which NUWHRAIN failed to discharge in the present case. Undoubtedly, the members of NUWHRAIN would owe their loyalty to their union, a natural bias which somewhat puts into question their credibility as witnesses, especially since the success of this case would also redound to their benefit. The fact that six members of the union signed a single statement, instead of each member presenting their sincere and individual narrations of events, gives the impression that it was signed in a perfunctory manner and motivated by a sense of union solidarity. The self-serving statement signed by six of NUWHRAIN’s members have very little weight, even if made under oath, absent any other independent evidence which indicates that

the officers of the respondent and the Hotel made such hostile and coercive utterances that tend to interfere or influence the employees’ exercise of the right to self-organization. In the case at bar, the NLRC found, and the Court of Appeals affirmed, that the officers of the respondent and the Hotel did not make statements that would have constituted unfair labor practice. Findings of fact of the NLRC are given much weight and are considered conclusive by this Court. It is only when such findings are not substantially supported by the records that this Court will step in and make its independent evaluation of the facts. 35 Considering the expertise of these agencies in matters pertaining to labor disputes, the findings of administrative agencies of the Department of Labor are generally accorded not only respect, but also finality.36 Even the surrounding circumstances would contradict NUWHRAIN’s allegation that the respondent interfered with or coerced its employees in their choice of union membership. In their Reply before the NLRC, NUWHRAIN admitted that before issuing its Notices, the respondent maintained a neutral stand in the dispute between HIMPHLU and NUWHRAIN. 37 Neither did the respondent threaten the 36 employees who shifted their allegiance to NUWHRAIN with any form of reprisal; they were not dismissed for their affiliation with NUWHRAIN. The records are bereft of any instance that would show that respondent rode roughshod over its employees’ freedom to decide which union to join. In all, respondent had not committed any act which would constitute unfair labor practice. IN VIEW OF THE FOREGOING, the instant Petition is DENIED. The assailed Decision dated 30 May 2007 of the Court of Appeals in CA-G.R. SP No. 96171 is hereby AFFIRMED. Costs against petitioner NUWHRAIN. SO ORDERED. G.R. No. 174141 June 26, 2009 PENTAGON STEEL CORPORATION, Petitioner,

vs. COURT OF APPEALS, NATIONAL LABOR RELATIONS COMMISSION and PERFECTO BALOGO,Respondents.

D E C I S I O N Before this Court is the Petition for Review on Certiorari1 under Rule 45 of the Rules of Court filed by Pentagon Steel Corporation (the petitioner). It seeks to set aside: (a) the Decision of the Court of Appeals (CA) dated June 28, 20062 modifying the Decision of the National Labor Relations Commission (NLRC) dated January 31, 2005;3 and (b) the Resolution of the CA dated August 15, 2006,4 denying the motion for reconsideration that the petitioner subsequently filed. THE FACTUAL ANTECEDENTS The petitioner, a corporation engaged in the manufacture of G.I. wire and nails, employed respondent Perfecto Balogo (the respondent) since September 1, 1979 in its wire drawing department. The petitioner alleged that the respondent absented himself from work on August 7, 2002 without giving prior notice of his absence. As a result, the petitioner sent him a letter by registered mail dated August 12, 2002, written in Filipino, requiring an explanation for his absence. The petitioner sent another letter to the respondent on August 21, 2002, also by registered mail, informing him that he had been absent without official leave (AWOL) from August 7, 2002 to August 21, 2002. Other letters were sent to the respondent by registered mail, all pointing out his absences; however, the respondent failed to respond. Thus, the petitioner considered him on AWOL from August 7, 2002.5 On September 13, 2002, the respondent filed a complaint with the Arbitration Branch of the NLRC for underpayment/nonpayment of salaries and wages, overtime pay, holiday pay, service incentive leave, 13th month pay, separation pay, and ECOLA. The respondent alleged that on August 6, 2002, he contracted flu associated with diarrhea and suffered loose bowel movement due to the infection. The respondent maintained that his illness had prevented him from reporting for work for ten (10) days. When the respondent finally reported for work on August 17, 2002, the petitioner refused to take him back despite the medical certificate he submitted. On August 19, 2002, the respondent again reported for

work, exhibiting a note from his doctor indicating that he was fit to work. The petitioner, however, did not allow him to resume work on the same date. Subsequently, the respondent again reported for work on August 21 and 23, 2002 and October 10 and 18, 2002, to no avail. He was thus driven to file a complaint against the petitioner.6 During the conciliation proceedings on October 9, 2002, the respondent presented the medical certificate covering his period of absence. The petitioner required him, however, to submit himself to the company physician to determine whether he was fit to return to work in accordance with existing policies. On October 22, 2002, still during the conciliation proceedings, the respondent presented a medical certificate issued by the company physician; according to the petitioner, the respondent refused to return to work and insisted that he be paid his separation pay. The petitioner refused the respondent’s demand for separation pay for lack of basis. On January 20, 2003, the respondent formally amended his complaint to include his claim of illegal dismissal.7 The Labor Arbiter Ruling On October 27, 2003, the labor arbiter rendered his decision dismissing the illegal dismissal charge, but directed the petitioner "to pay the complainant his SIL and 13th month pay in the amount of Five Thousand One Hundred Sixty-Six Pesos and 66/100 (P5,166.66)."8 In dismissing the respondent’s claim of illegal dismissal, the labor arbiter found that no dismissal took place; thus, the petitioner never carried the burden of proving the legality of a dismissal. The labor arbiter noted that the respondent’s allegation that he reported for work is not reliable for lack of corroborating evidence, as the respondent in fact failed to respond to the petitioner’s memoranda. Thus, the decision was confined to the directive to pay service incentive leave and 13th month pay. The NLRC Ruling The respondent appealed the labor arbiter’s decision to the NLRC on November 14, 2003, specifically questioning the ruling that no illegal dismissal took place. On January 31, 2005, the NLRC Third Division vacated and set aside the decision of the labor arbiter.9 The decision directed the company to pay the respondent separation pay, backwages, 13th month pay, and service incentive leave.10 The NLRC ruled that the petitioner’s defense of abandonment has no legal basis since there was no clear intent on the respondent’s part to sever the employer-employee relationship. The NLRC found it difficult to accept the petitioner’s allegation that the respondent absented himself for unknown reasons; this kind of action is inconsistent with the respondent’s twenty-three (23) years of service and lack of derogatory record during these years. As a consequence, the NLRC held that the respondent was illegally dismissed. Together with this conclusion, however, the NLRC also considered the strained relationship existing between the parties and, for this reason, awarded separation pay in lieu of reinstatement, in addition to backwages. On March 31, 2005, the NLRC denied the petitioner’s motion for reconsideration. The CA Ruling On May 6, 2006, the petitioner filed a special civil action for certiorari11 with the CA, alleging grave abuse of discretion on the part of the NLRC in ruling that illegal dismissal took place, and in awarding the respondent separation pay and backwages. In a Decision dated June 28, 2006, the CA affirmed the NLRC’s finding that the dismissal was illegal, but modified the challenged decision by adding reinstatement and the payment of "full backwages, inclusive of allowances and other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement."12 The CA held that the respondent was constructively dismissed when the petitioner repeatedly refused to accept the respondent back to work despite the valid medical reason that justified his absence from work. The CA concluded that the respondent complied with the petitioner’s directive to submit a written explanation when the former presented the medical certificate to explain his absences.

The CA also disregarded the petitioner’s charge of abandonment against the respondent. The appellate court ruled that the petitioner failed to prove a clear and deliberate intent on the respondent’s part to discontinue working with no intention of returning. The CA took note of the respondent’s eagerness to return to work when he obtained a note from his doctor about his fitness to return to work. The CA also ruled that the respondent’s filing of a complaint for illegal dismissal with a prayer for reinstatement manifested his desire to return to his job, thus negating the petitioner’s charge of abandonment. The CA, however, disagreed with the NLRC’s application of the doctrine of "strained relations," citing jurisprudence that the doctrine should be strictly applied in order not to deprive an illegally dismissed employee of his right to reinstatement. The CA also held that to deny the respondent the benefits due from his long service with the company would be very harsh since his long service would not be amply compensated by giving him only separation pay. Petitioner moved for reconsideration of the decision, but the CA denied the motion for lack of merit in the Resolution dated August 15, 2006.13 In this present petition, the petitioner imputes grave abuse of discretion against the CA: 1) in basing its decision on the proceedings that transpired when the parties were negotiating for a compromise agreement during the preliminary conference of the case; 2) in declaring that respondent was illegally dismissed by the petitioner; and 3) in ordering that respondent be reinstated to his former position with backwages. THE COURT’S RULING We do not find the petition meritorious. Before going into the substantive merits of the controversy, we shall first resolve the propriety of the CA’s consideration of the proceedings that transpired during the mandatory preliminary conference of the case. Statements and/or agreements made at conciliation proceedings are privileged and cannot be used as evidence The petitioner contends that the CA cannot use the parties’ actions and/or agreements during the negotiation for a compromise agreement as basis for the conclusion that the respondent was illegally dismissed because an offer of compromise is not admissible in evidence under Section 27, Rule 130 of the Rules of Court.14 We agree with the petitioner, but for a different reason. The correct reason for the CA’s error in considering the actions and agreements during the conciliation proceedings before the labor arbiter is Article 233 of the Labor Code which states that "[i]nformation and statements made at conciliation proceedings shall be treated as privileged communication and shall not be used as evidence in the Commission. Conciliators and similar officials shall not testify in any court or body regarding any matters taken up at conciliation proceedings conducted by them." This was the provision we cited in Nissan Motors Philippines, Inc. v. Secretary of Labor15 when we pointedly disallowed the award made by the public respondent Secretary; the award was based on the information NCMB Administrator Olalia secured from the confidential position given him by the company during conciliation. In the present case, we find that the CA did indeed consider the statements the parties made during conciliation; thus, the CA erred by considering excluded materials in arriving at its conclusion. The reasons behind the exclusion are two-fold. First, since the law favors the settlement of controversies out of court, a person is entitled to "buy his or her peace" without danger of being prejudiced in case his or her efforts fail; hence, any communication made toward that end will be regarded as privileged.16 Indeed, if every offer to buy peace could be used as evidence against a person who presents it, many settlements would be prevented and unnecessary litigation would result, since no prudent person would dare offer or entertain a compromise if his or her compromise position could be exploited as a confession of weakness.17 Second, offers for compromise are irrelevant because they are not intended as admissions by the parties making them.18 A true offer of compromise does not, in legal contemplation, involve an admission on the part of a defendant that he or she is legally liable, or on the part of a plaintiff, that his or her claim is groundless or even doubtful, since it is made with a

view to avoid controversy and save the expense of litigation. It is the distinguishing mark of an offer of compromise that it is made tentatively, hypothetically, and in contemplation of mutual concessions.19 While we agree with the petitioner that the CA should not have considered the agreements and/or statements made by the parties during the conciliation proceedings, the CA’s conclusion on illegal dismissal, however, was not grounded solely on the parties’ statements during conciliation, but was amply supported by other evidence on record, which we discuss below. Based on these other pieces of evidence, the respondent was illegally dismissed; hence, our ruling regarding the statement made during conciliation has no effect at all on our final conclusion. Respondent did not abandon his job The rule is that the burden of proof lies with the employer to show that the dismissal was for a just cause.20 In the present case, the petitioner claims that there was no illegal dismissal since the respondent abandoned his job. The petitioner points out that it wrote the respondent various memoranda requiring him to explain why he incurred absences without leave, and requiring him as well to report for work; the respondent, however, never bothered to reply in writing. In evaluating a charge of abandonment, the jurisprudential rule is that abandonment is a matter of intention that cannot be lightly presumed from equivocal acts.21 To constitute abandonment, two elements must concur: (1) the failure to report for work or absence without valid or justifiable reason, and (2) a clear intent, manifested through overt acts, to sever the employer-employee relationship. The employer bears the burden of showing a deliberate and unjustified refusal by the employee to resume his employment without any intention of returning.22 We agree with the CA that the petitioner failed to prove the charge of abandonment. First, the respondent had a valid reason for absenting himself from work. The respondent presented a medical certificate from his doctor attesting to the fact that he was sick with flu associated with diarrhea or loose bowel movement which prevented him from reporting for work for 10 days. The petitioner never effectively refuted the respondent’s reason for his absence. We thus concur with the CA’s view that the respondent submitted a valid reason for his absence and thereby substantially complied with the petitioner’s requirement of a written explanation. We quote with approval the following discussion in the CA’s decision: In his case, Balogo should be judged as having fully complied with the petitioner’s directive by his presenting of the medical certificate to justify or explain his absences because the medical certificate already constituted the required "written explanation." Another written explanation from him would be superfluous and even redundant if the facts already appearing in the medical certificate would inevitably be stated again in that other written explanation. Why the petitioner persistently refused to accept Balogo back despite his presentation of the medical certificate and the doctor’s note about his fitness to work was not credibly explained by the petitioner. The refusal is indicative of the petitioner’s ill motive towards him, using the lack of written explanation as a clever ruse to terminate Balogo’s employment. Second, there was no clear intention on the respondent’s part to sever the employer-employee relationship. Considering that "intention" is a mental state, the petitioner must show that the respondent’s overt acts point unerringly to his intent not to work anymore.23 In this case, we see no reason to depart from the unanimous factual findings of the NLRC and the CA that the respondent’s actions after his absence from work for ten (10) days due to illness showed his willingness to return to work. Both tribunals found that after the respondent presented his medical certificate to the petitioner to explain his absence, he even went back to his doctor for a certification that he was already fit to return to work. These findings of fact we duly accept as findings that we must not only respect, but consider as final, since they are supported by substantial evidence.24 In addition, the respondent’s filing of the amended complaint for illegal dismissal on January 20, 2003 strongly speaks against the petitioner’s charge of abandonment, for it is

illogical for an employee to abandon his employment and, thereafter, file a complaint for illegal dismissal. That abandonment is negated finds support in a long line of cases where the immediate filing of a complaint for illegal dismissal was coupled with a prayer for reinstatement; the filing of the complaint for illegal dismissal is proof enough of the desire to return to work.25 The prayer for reinstatement, as in this case, speaks against any intent to sever the employer-employee relationship.26 We additionally take note of the undisputed fact that the respondent had been in the petitioner’s employ for 23 years. Prior to his dismissal, the respondent’s service record was unblemished having had no record of infraction of company rules. As the NLRC correctly held, we find it difficult to accept the petitioner’s allegation that the respondent absented himself for unjustifiable reasons with the intent to abandon his job. To our mind, abandonment after the respondent’s long years of service and the consequent surrender of benefits earned from years of hard work are highly unlikely. Under the given facts, no basis in reason exists for the petitioner’s theory that the respondent abandoned his job. Respondent was constructively dismissed The above conclusion necessarily leads us to sustain the NLRC’s finding, as affirmed by the CA, that the respondent was dismissed without just cause. Again, we quote with approval the CA’s disquisition: That Balogo was dismissed in contravention of the letter and spirit of the Constitution and the Labor Code on the security of tenure guaranteed to him as employee is clear for us. A dismissal need not be expressed orally or in writing, for it can also be implied. When the employer continuously refuses to accept the employee back despite his having a valid reason for his absence from work, illegal dismissal results because the employee is thus prevented from returning to work under the façade of a violation of a company directive. A dismissal effected through the fig leaf of an alleged violation of a company directive is no less than an actual illegal dismissal that jurisprudence has labeled as a constructive dismissal. Hyatt Taxi Services, Inc. v. Catinoy27describes this type of company action when it ruled that "[c]onstructive dismissal does not always involve forthright dismissal or diminution in rank, compensation, benefit and privileges – there may be constructive dismissal if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment." The respondent’s situation is no different from what Hyatt defined, given the result of the petitioner’s action and the attendant insensibility and disdain the employer exhibited. We significantly note that by reporting for work repeatedly, the respondent manifested his willingness to comply with the petitioner’s rules and regulations and his desire to continue working for the latter. The petitioner, however, barred him from resuming his work under the pretext that he had violated a company directive. This is a clear manifestation of the petitioner’s lack of respect and consideration for the respondent who had long served the company without blemish, but who had to absent himself because of illness.1avvphi1 The

petitioner’s actions, under these circumstances, constitute constructive dismissal.28 The respondent’s illegal dismissal carries the legal consequence defined under Article 279 of the Labor Code: the illegally dismissed employee is entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances and other benefits or their monetary equivalent, computed from the time his compensation was withheld from him up to the time of his actual reinstatement.29 The imposition of this legal consequence is a matter of law that allows no discretion on the part of the decision maker, except only to the extent recognized by the law itself as expressed in jurisprudence. Respondent is entitled to reinstatement not separation pay As the CA correctly ruled, the NLRC erred when it awarded separation pay instead of reinstatement. The circumstances in this case do not warrant an exception to the rule that reinstatement is the consequence of an illegal dismissal. First. The existence of strained relations between the parties was not clearly established. We have consistently ruled that the doctrine of strained relations cannot be used recklessly or applied loosely to deprive an illegally dismissed employee of his means of livelihood and

deny him reinstatement. Since the application of this doctrine will result in the deprivation of employment despite the absence of just cause, the implementation of the doctrine of strained relationship must be supplemented by the rule that the existence of a strained relationship is for the employer to clearly establish and prove in the manner it is called upon to prove the existence of a just cause; the degree of hostility attendant to a litigation is not, by itself, sufficient proof of the existence of strained relations that would rule out the possibility of reinstatement.30 Indeed, labor disputes almost always result in "strained relations," and the phrase cannot be given an overarching interpretation; otherwise, an unjustly dismissed employee can never be reinstated.31 In the present case, we find no evidentiary support for the conclusion that strained relations existed between the parties. To be sure, the petitioner did not raise the defense of strained relationship with the respondent before the labor arbiter. Consequently, this issue – factual in nature – was not the subject of evidence on the part of both the petitioner and the respondent. There thus exists no competent evidence on which to base the conclusion that the relationship between the petitioner and the respondent has reached the point where their relationship is now best severed.32 We agree with the CA’s specific finding that the conflict, if any, occasioned by the respondent’s filing of an illegal dismissal case, does not merit the severance of the employee-employer relationship between the parties. Second. The records disclose that respondent has been in the petitioner’s employ for 23 years and has no previous record of inefficiency or infraction of company rules prior to his illegal dismissal from service. We significantly note that payment of separation pay in lieu of respondent’s reinstatement will work injustice to the latter when considered with his long and devoted years in the petitioner’s service. Separation pay may take into account the respondent’s past years of service, but will deprive the respondent of compensation for the future productive years that his security of tenure protects. We take note, too, that the respondent, after 23 years of service, shall in a few years retire; any separation pay paid at this point cannot equal the retirement pay due the respondent upon retirement. For all these reasons, we uphold the CA ruling that the respondent should be reinstated to his former position or to a substantially equivalent position without loss of seniority rights. WHEREFORE, premises considered, we hereby DENY the petition, and, consequently, AFFIRM the Decision of the Court of Appeals dated June 28, 2006 and its Resolution dated August 15, 2006 in CA-G.R. SP No. 89587. SO ORDERED. G.R. No. 182216 December 4, 2009 PLANTATION BAY RESORT and SPA and EFREN BELARMINO, Petitioners,

vs. ROMEL S. DUBRICO, GODFREY D. NGUJO and JULIUS D. VILLAFLOR, Respondents.

D E C I S I O N CARPIO MORALES, J.:

Via petition for review on certiorari, petitioners Plantation Bay Resort and Spa (Plantation Bay) and Efren Belarmino (Belarmino) challenge the Court of Appeals August 30, 2007 Decision1 and March 3, 2008 Resolution2dismissing their petition and affirming the March 24, 20063 and June 23, 20064 Resolutions of the National Labor Relations Commission (NLRC) in Case No. V-000366-2005 in favor of herein respondents. Respondents are former employees of Plantation Bay located in Cebu, of which Belarmino is the Manager. On several dates in September 2004, after Plantation Bay issued a series of memoranda and conducted seminars5relative to its drug-free workplace policy,6 Plantation Bay, in compliance with Republic Act No. 9165 (Comprehensive Dangerous Drugs Act of 2002), conducted surprise random drug tests on its employees. The drug tests, said to have been carried out with the assistance of the Philippine National Police-Scene of Crime Operations (SOCO), were administered on about 122 employees by the Martell Medical Trade and Lab Services (Martell), a drug testing laboratory. And confirmatory tests were conducted by the Philippine Drug Screening Laboratory, Inc. (Phil. Drug), a Department of Health-accredited laboratory. Respondent Romel Dubrico (Dubrico) failed to take the drug test conducted on September 14, 2004, hence, he was issued a memorandum7 requiring him to appear in a mandatory

conference on September 20, 2004. Before the scheduled conference or on September 19, 2004, Dubrico explained in writing8 his failure to undergo the drug test, he averring that, inter alia, the procedure for the random drug testing was not followed such that he

was not informed about his selection; and that he was at the appointed time and place for the pre-test meeting but that the duty manager was not around, hence, he left and failed to be tested. Dubrico was later tested and found positive for use of methamphetamine hydrochloride (shabu). Twenty other employees were found positive for use of shabu including herein respondents

Godfrey Ngujo (Ngujo) and Julius Villaflor (Villaflor). In compliance with separate memoranda9 issued by the management of Plantation Bay, the employees submitted their explanations on the result of the tests, which explanations were found unsatisfactory, hence, Plantation Bay dismissed them including herein respondents. Respondents Dubrico, Ngujo and Villaflor and three others thereupon filed on November 18, 2004 their respective complaints10 for illegal dismissal, questioning the conduct of the drug tests without the presence of the DOLE Regional Director or his representative. By Decision11 of April 18, 2005, Labor Arbiter Jose G. Gutierrez dismissed the employees’ complaints, holding that in testing positive for the use of shabu, they were guilty of serious misconduct, hence, Plantation Bay validly terminated their employment; and that they were afforded due process, they having been issued memoranda as to the mandatory investigation and given the chance to, as they did refute the results of the drug tests by submitting results of recent drug tests.12 The Labor Arbiter discredited the drug test results presented by the employees as the tests were taken more than 72 hours after the conduct of the random drug tests.

On appeal, the NLRC, by Decision of October 26, 2005, affirmed the Decision of the Labor Arbiter. On respondents’ motion for reconsideration, it, however, by Resolution of March 24, 2006, reversed its October 26, 2005 Decision and declared that respondents were

illegally dismissed. In finding for respondents, the NLRC held that the results of the confirmatory drug tests cannot be given credence since they were conducted prior to the conduct by the employer of the drug tests. It ratiocinated: Considering the indubitable documentary evidence on record notably submitted by respondents [petitioners herein] themselves, we agree with complainants that either or both drug tests and confirmatory tests conducted on them were fabricated, farce or sham. For how could one "confirm" some thing which was yet to be established or discovered? Needless to say, the drug testing should always come ahead of the confirmatory testing, not the other way around. We thus agree with complainants that if

the drug tests against them were true, the supposed confirmatory tests conducted on them were not based on their urine samples that were the subject of the drug tests. Or that is the confirmatory tests were correct, these could not have been gotten from their urine samples which were yet to undergo drug testing. At any rate, there is not only doubt that on the version of respondents but also their conduct is highly suspicious based on their own evidence. Thus, we now rule that respondents were not really into drugs. (Emphasis and underscoring supplied)1avvphi1

On the issue of due process, the NLRC abandoned its earlier statement that it was the SOCO which conducted the drug tests, this time declaring that it was Martell which actually administered them. It added that respondents were not given the opportunity to examine the evidence and confront the witnesses against them through their counsel. The NLRC accordingly reversed the Decision of the Labor Arbiter, disposing as follows: WHEREFORE, the Appeal is DISMISSED, and the assailed Decision is AFFIRMED in toto. SO ORDERED.13 Its motion for reconsideration having been denied by Resolution of June 23, 2006, Plantation Bay appealed to the Court of Appeals, arguing that, inter alia, the veracity of the

confirmatory tests was raised by respondents only when they filed a belated Motion for Reconsideration of the NLRC Decision, hence, the NLRC gravely abused its discretion when it reversed its findings based on such new issue.

The appellate court affirmed the NLRC March 24, 2006 Resolution with modification by deleting the award of damages. Hence, the present petition, petitioners reiterating the same issues raised in the appellate court. Additionally, they maintain that in terminating the services of respondents, they relied on the results of the random drug tests undertaken by an accredited and licensed drug testing facility, and if the results turned out to be questionable or erroneous, they should not be made liable therefor. The petition is bereft of merit. While it is a well-settled rule, also applicable in labor cases, that issues not raised below cannot be raised for the first time on appeal,14 there are exceptions thereto among which are for reasons of public policy or interest. The NLRC did not err in considering the issue of the veracity of the confirmatory tests even if the same was raised only in respondents’ Motion for Reconsideration of its Decision, it being crucial in determining the validity of respondents’ dismissal from their employment. Technical rules of procedure are not strictly adhered to in labor cases. In the interest of substantial justice, new or additional evidence may be introduced on appeal before the NLRC. Such move is proper, provided due process is observed, as was the case here, by giving the opposing party sufficient opportunity to meet and rebut the new or additional evidence15 introduced. The Constitution no less directs the State to afford full protection to labor. To achieve this goal, technical rules of procedure shall be liberally construed in favor of the working class in accordance with the demands of substantial justice.16 On the merits, the petition just the same fails. The importance of the confirmatory test is underscored in Plantation Bay’s own "Policy and Procedures," in compliance with Republic Act No. 9165, requiring that a confirmatory test must be conducted if an employee is found positive for drugs in the Employee’s Prior Screening Test, and that both tests must arrive at the same positive result.171avvphil1 Records show the following timeline, based on the reports on respondents’ respective drug tests18 administered by Martell and confirmatory tests19 undertaken by the Phil. Drug:

Name Drug Test Confirmatory Test

Romel Dubrico

Urine sample received on 09/29/04 at 5:14 p.m.

Issued on 09/29/04 at3:57 p.m.

Godfrey Ngujo

Urine sample received on 09/29/04 at 5:24 p.m.

Issued on 09/29/04 at3:57 p.m.

Julius Villaflor

Urine sample received on 09/29/04 at 5:32 p.m.

Issued on 09/29/04 at4:15 p.m.

(Underscoring supplied) As reflected in the above matrix, the confirmatory test results were released earlier than

those of the drug test, thereby casting doubts on the veracity of the confirmatory results. Indeed, how can the presence of shabu be confirmed when the results of the initial

screening were not yet out? Plantation Bay’s arguments that it should not be made liable thereof and that the doubt arising from the time of the conduct of the drug and confirmatory tests was the result of the big volume of printouts being handled by Martell do not thus lie. It was Plantation Bay’s responsibility to ensure that the tests would be properly administered, the results thereof being the bases in terminating the employees’ services. Time and again, we have ruled that where there is no showing of a clear, valid and legal cause for termination of employment, the law considers the case a matter of illegal dismissal. The burden is on the employer to prove that the termination of employment was for a valid and legal cause. For an employee's dismissal to be valid, (a) the dismissal must be for a valid cause and (b) the employee must be afforded due process.20 (Emphasis supplied)

In fine, as petitioners failed to indubitably prove that respondents were guilty of drug use in contravention of its drug-free workplace policy amounting to serious misconduct, respondents are deemed to have been illegally dismissed. As to the appellate court’s deletion of the award of damages, the same is in order, there being no clear showing that the termination of respondents’ services was actuated by bad faith. WHEREFORE, the petition is DENIED. SO ORDERED. G.R. No. 182626 December 4, 2009 HILARIO S. RAMIREZ, Petitioner, vs. HON. COURT OF APPEALS, Cebu City, HON. NLRC, 4th Division, Cebu City and MARIO S. VALCUEBA,Respondents.

D E C I S I O N CHICO-NAZARIO, J.:

This is a Petition for Review under Rule 45 of the Rules of Court assailing the (a) 13 July 2007 Resolution1 of the Court of Appeals which dismissed the Petition for Certiorari under Rule 65 filed by petitioner Hilario Ramirez for failure to properly verify his petition and to state material dates and (b) the 7 March 2008 Resolution2 of the same court denying petitioner’s Motion for reconsideration. The facts are: Respondent Mario Valcueba (Valcueba) filed a Complaint3 for illegal dismissal and nonpayment of wage differential, 13th month pay differential, holiday pay, premium pay for holidays and rest days, and service incentive leaves with claims for moral and exemplary damages and attorney’s fees, against Hilario Ramirez (Ramirez). Valcueba claimed that Ramirez hired him as mechanic on 28 May 1999. By 2002, he was paid a daily wage of P140.00, which was increased to P165.00 a day in 2003 and to P190.00 in 2005. He was not paid for holidays and rest days. He was not also paid the complete amount of his 13th month pay. On 27 February 2006, Josephine Torres, secretary of Ramirez, informed Valcueba that he would not be allowed to return to work unless he agreed to work on pakyaw basis.4 Aggrieved, he filed this case. Ramirez, on the other hand, presented a different version of the antecedents, asserting that Valcueba was first hired as construction worker, then as helper of the mechanic, and eventually as mechanic. There were three categories of mechanics at the workplace. First were the mechanics assigned to specific stations. Second were the mechanics paid on pakyaw basis; and finally, those who were classified as rescue/emergency mechanics. Valcueba belonged to the last category. As emergency/rescue mechanic, he was assigned to various stations to perform emergency/rescue work. On 26 February 2006, while he was assigned at the Babag station, Ramirez directed him to proceed to Calawisan, Lapu-lapu City, as a unit had developed engine trouble and the mechanic assigned in that area was absent. Valcueba did not report to the Calawisan station. In fact, he did not report for work anymore, as he allegedly intended to return to Mindanao.5 Further, Ramirez insisted that Valcueba was never terminated from his employment. On the contrary, it was the latter who abandoned his job. On 26 February 2006, Valcueba, as rescue or emergency mechanic, temporarily assigned at Babag Station, did not report at Calawisan, Lapu-lapu City when Ramirez ordered him to answer an emergency call, which required him to fix Ramirez’s troubled taxi unit. The mechanic assigned in the area was then absent at that time. The refusal of Valcueba to obey the lawful order of Ramirez was bolstered by his failure to report for work the following day, 27 February 2006. Valcueba advanced no reason regarding his failure to answer an emergency call of duty, nor did he file an application for a leave of absence when he failed to report for work that day. After hearing, the Labor Arbiter rendered her decision, where she pointed out that: The allegation of complainant that his refusal to work on pakiao basis prompted respondent

Hilario Ramirez to dismiss him from the service is not substantiated by any piece of evidence. Not even a declaration under oath by any affiant attesting to the credibility of complainant’s allegation is presented. No documentary evidence purporting to clearly

indicate that complainant was discharged was submitted for Our judicious consideration. A fortiori, there is reason for Us to doubt complainant’s submission that he was dismissed from his employment grounded on disobedience to the lawful order of respondent. On the side of respondent Ramirez, he insisted that complainant was never terminated from his employment. On the contrary, he alleged that it was complainant who abandoned his job. As rescue or emergency mechanic temporarily assigned at Babag Station, on February 26, 2006, complainant did not report at Calawisan, Lapu-Lapu City when respondent Ramirez ordered him to answer an emergency call, which required him to fix the respondent’s troubled taxi unit. The mechanic assigned in the area was then absent at that time. The refusal of complainant to obey the lawful order of respondent Ramirez is bolstered by his failure to report for work the following day, February 27, 2006. Complainant advanced no reason as to why he failed to answer an emergency call of duty nor did he file an application for a leave of absence when he failed to report for work that day. Nonetheless, as the records are bereft of any evidence that respondent sent complainant a letter which advised the latter to report for work, We do not rule out a case of abandonment because the overt act of not answering an emergency call is not insufficient to constitute abandonment. Consequently, there being no dismissal nor abandonment involved in this case, it is best that the parties to this case should be restored to their previous employment relations. Complainant must go back to work within ten (10) days from receipt of this judgment, while respondent must accept complainant back to work, also within ten (10) days from receipt of this decision.6 In the end, the Labor Arbiter decreed: WHEREFORE, VIEWED FROM THE FOREGOING, judgment is hereby rendered declaring respondent HILARIO RAMIREZ, OWNER OF H.R. TAXI, NOT GUILTY of illegally dismissing complainant from the service, it appearing that there is no dismissal to speak of in this case. Consequently, complainant is ordered to report back for work within ten (10) days from receipt hereof, and respondent Hilario Ramirez must complainant (sic) back to work as soon as the latter would express his intention to report for work or within the same period of ten (10) days from receipt hereof, whichever comes first. Proof of compliance hereof, must be submitted within the same period (sic), complainant would be guilty of abandonment and respondent of illegal dismissal. In addition, respondent HILARIO RAMIREZ, owner of H.R. Taxi, is hereby ordered to pay complainant MARIO S. VALCUEBA the following:

a. Wage Differential - P30,538.00

b. 13th Month Pay - 15,287.98

Total Award -

P45,825.98

Philippine currency, within ten (10) days from receipt hereof, through the Cashier of this Arbitration Branch. Other claims are DISMISSED for failure to substantiate.7 Records show that Ramirez received the Labor Arbiter’s decision on 5 June 2006. He filed a Motion for Reconsideration and/or Memorandum of Appeal with Urgent Motion to Reduce Appeal Bond8 on the 9th day of the reglementary period or on 14 June 2006 before the National Labor Relations Commission (NLRC). Resolving the motion, the NLRC issued a Resolution9 dated 29 September 2006, which reads: Upon a careful perusal of the motion to reduce bond, however, the Commission found that the same does not comply with Section 6, Rule VI of the NLRC Rules of Procedure. x x x x Respondent has not offered a meritorious ground for the reduction of the appeal bond and the amount ofP10,000.00 he posted is not a reasonable amount in relation to the monetary

award of P45,825.98. Consequently, his motion to reduce appeal bond shall not be entertained and his appeal is dismissed for non-perfection due to lack of an appeal bond. The NLRC then held: WHEREFORE, premises considered, the appeal of respondent is hereby DISMISSED for non-perfection due to want of an appeal bond.10 Ramirez filed a Motion for Reconsideration, which the NLRC resolved in a Resolution dated 20 December 2006 in this wise: The mere filing of a motion to reduce bond without complying with the requisites of meritorious grounds and posting of a bond in a reasonable amount in relation to the monetary award does not stop the running of the period to perfect an appeal. Thus, respondent’s failure to abide with the requisites so mentioned has not perfected his appeal. Verily, since the assailed Decision of the Labor Arbiter contains a monetary award in favor of complainant, it behooves upon respondent to post the required bond. While the filing of a motion to reduce bond can be considered as a motion of preference in case of an appeal, the same holds true only when such motion complies with the requirements stated above. Consequently, respondent’s motion to reduce bond which missed to comply with such requisites does not deserve to be entertained nor to be given a preferred resolution. WHEREFORE, premises considered, the motion for reconsideration of respondent is hereby DENIED for lack of merit.11 The decision of the Labor Arbiter became final and executory on 19 February 2007 and was entered in the Book of Entries of Judgment on 4 May 2007.12 Ramirez went up to the Court of Appeals. The case was docketed as CA-G.R. SP No. 02614. In a resolution dated 13 July 2007,13 the Court of Appeals dismissed the Petition outright for failure of Ramirez to properly verify his petition and to state material dates. Ramirez’s Motion for Reconsideration was denied by the Court of Appeals in a resolution dated 7 March 2008;14hence, this petition where Ramirez prays that the "dismissal resolution issued by the Court of Appeals be set aside and in its stead to give due course to this petition by dismissing the unwarranted claims imposed by the NLRC for being highly speculative, with no evidence to support of (sic)."15 The issues are: I PUBLIC RESPONDENT COURT OF APPEALS ERRED IN NOT CONSIDERING THE SUBSTANTIAL COMPLIANCE OF THE FILED PETITION. II THE DISMISSAL RESOLUTION (ANNEX "A") HAS NOT RESOLVED THE LEGAL ISSUES RAISED IN CA-G.R. SP NO. 02614.16 The case presents no novel issue. We first resolve the propriety of dismissal by the NLRC. At the outset, it should be stressed that the right to appeal is not a natural right or a part of due process; it is merely a statutory privilege, and may be exercised only in the manner prescribed by and in accordance with the provisions of law. The party who seeks to avail himself of the same must comply with the requirements of the rules. Failing to do so, he loses the right to appeal.17 Article 223 of the Labor Code provides for the procedure in case of appeal to the NLRC: Art. 223. Appeal. - Decisions, awards, or orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or both parties within ten (10) calendar days from receipt of such decisions, awards, or orders. Such appeal may be entertained only on any of the following grounds: a. If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter; b. If the decision, order or award was secured through fraud or coercion, including graft and corruption; c. If made purely on questions of law; and d. If serious errors in the finding of facts are raised which would cause grave or irreparable damage or injury to the appellant.

In case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from. (Emphasis supplied.) Sections 4(a) and 6 of Rule VI of the New Rules of Procedure of the NLRC, as amended, reaffirms the explicit jurisdictional principle in Article 223 even as it allows in justifiable cases the reduction of the appeal bond. The relevant provision states: SECTION 4. Requisites for Perfection of Appeal. - (a) The appeal shall be: 1) filed within the reglementary period provided in Section 1 of this Rule; 2) verified by the appellant himself in accordance with Section 4, Rule 7 of the Rules of Court, as amended; 3) in the form of a memorandum of appeal which shall state the grounds relied upon and the arguments in support thereof, the relief prayed for, and with a statement of the date the appellant received the appealed decision, resolution or order; for in three (3) legibly type written or printed copies; and 5) accompanied by i) proof payment of the required appeal fee; ii) posting of a cash or surety bond as provided in Section 6 of this Rule; iii) a certificate of non-forum shopping; and iv) proof of service upon the other parties. x x x x SECTION 6. Bond. — In case the decision of the Labor Arbiter or the Regional Director involves a monetary award, an appeal by the employer may be perfected only upon the posting of a bond, which shall either be in the form of cash deposit or surety bond equivalent in amount to the monetary award, exclusive of damages and attorney's fees. x x x x No motion to reduce bond shall be entertained except on meritorious grounds, and only upon the posting of a bond in a reasonable amount in relation to the monetary award. The mere filing of a motion to reduce bond without complying with the requisites in the preceding paragraphs shall not stop the running of the period to perfect an appeal. Under the Rules, appeals involving monetary awards are perfected only upon compliance with the following mandatory requisites, namely: (1) payment of the appeal fees; (2) filing of the memorandum of appeal; and (3) payment of the required cash or surety bond.18 The posting of a bond is indispensable to the perfection of an appeal in cases involving monetary awards from the decision of the labor arbiter. The intention of the lawmakers to make the bond a mandatory requisite for the perfection of an appeal by the employer is clearly expressed in the provision that an appeal by the employer may be perfected "only upon the posting of a cash or surety bond." The word "only" in Articles 223 of the Labor Code makes it unmistakably plain that the lawmakers intended the posting of a cash or surety bond by the employer to be the essential and exclusive means by which an employer's appeal may be perfected. The word "may" refers to the perfection of an appeal as optional on the part of the defeated party, but not to the compulsory posting of an appeal bond, if he desires to appeal. The meaning and the intention of the legislature in enacting a statute must be determined from the language employed; and where there is no ambiguity in the words used, then there is no room for construction.19 Clearly, the filing of the bond is not only mandatory but also a jurisdictional requirement that must be complied with in order to confer jurisdiction upon the NLRC. Non-compliance with the requirement renders the decision of the Labor Arbiter final and executory. This requirement is intended to assure the workers that if they prevail in the case, they will receive the money judgment in their favor upon the dismissal of the employer's appeal. It is intended to discourage employers from using an appeal to delay or evade their obligation to satisfy their employees’ just and lawful claims.20 In this case, although Ramirez posted an appeal bond, the same was insufficient, as it was not equivalent to the monetary award of the Labor Arbiter. Moreover, when Ramirez sought a reduction of the bond, he merely said that the bond was excessive and baseless without amplifying why he considered it as such.21 Colby Construction and Management Corporation v. National Labor Relations Commission22 succinctly elucidates that an employer who files a motion to reduce the appeal bond is still required to post the full amount of cash or surety bond within the ten-day reglementary period, even pending resolution of his motion.

Very recently, in Mcburnie v. Guanzon, the respondents therein filed their memorandum of appeal and motion to reduce bond on the 10th or last day of the reglementary period. Although they posted an initial appeal bond, the same was inadequate compared to the monetary award. The Court found no basis for therein respondent’s contention that the awards of the Labor Arbiter were null and excessive. We emphasized in that case that it behooves the Court to give utmost regard to the legislative and administrative intent to strictly require the employer to post a cash or surety bond securing the full amount of the monetary award within the 10-day reglementary period. Nothing in the Labor Code or the NLRC Rules of Procedure authorizes the posting of a bond that is less than the monetary award in the judgment, or deems such insufficient posting as sufficient to perfect the appeal.23 By stating that the bond is excessive and baseless without more, and without proof that he is incapable of raising the amount of the bond, Ramirez did not even come near to substantially complying with the requirements of Art. 223 of the Labor Code and NLRC Rule of Procedure. Given that Ramirez is involved in taxi business, he has not shown that he had difficulty raising the amount of the bond or was unable to raise the amount specified in the award of the Labor Arbiter. All given, the NLRC justifiably denied the motion to reduce bond, as it had no basis upon which it could actually and completely determine Ramirez’s motion to reduce bond. We have consistently enucleated that a mere claim of excessive bond without more does not suffice. Thus, in Ong v. Court of Appeals,24 this Court held that the NLRC did not act with grave abuse of discretion when it denied petitioner’s motion, for the same failed to elucidate why the amount of the bond was either unjustified or prohibitive. In Calabash Garments, Inc. v. National Labor Relations Commission,25 it was held that "a substantial monetary award, even if it runs into millions, does not necessarily give the employer-appellant a `meritorious case’ and does not automatically warrant a reduction of the appeal bond." It is clear from both the Labor Code and the NLRC Rules of Procedure that there is legislative and administrative intent to strictly apply the appeal bond requirement, and the Court should give utmost regard to this intention. There is a concession to the employer, in excluding damages and attorney's fees from the computation of the appeal bond. Not even the filing of a motion to reduce bond is deemed to stay the period for requiring an appeal. Nothing in the Labor Code or the NLRC Rules of Procedure authorizes the posting of a bond that is less than the monetary award in the judgment, or would deem such insufficient postage as sufficient to perfect the appeal. On the other hand, Article 223 indubitably requires that the appeal be perfected only upon the posting of the cash or surety bond which is equivalent to the monetary award in the judgment appealed from. The clear intent of both statutory and procedural law is to require the employer to post a cash or surety bond securing the full amount of the monetary award within the ten (10)-day reglementary period. While the bond may be reduced upon motion by the employer, there is that proviso in Rule VI, Section [6] that the filing of such motion does not stay the reglementary period. The qualification effectively requires that unless the NLRC grants the reduction of the cash bond within the ten (10)-day reglementary period, the employer is still expected to post the cash or surety bond securing the full amount within the said ten (10)-day period. If the NLRC does eventually grant the motion for reduction after the reglementary period has elapsed, the correct relief would be to reduce the cash or surety bond already posted by the employer within the ten (10)-day period.26 (Emphases supplied.) While in certain instances, we allow a relaxation in the application of the rules to set right an arrant injustice, we never intend to forge a weapon for erring litigants to violate the rules with impunity. The liberal interpretation and application of rules apply only to proper cases of demonstrable merit and under justifiable causes and circumstances, but none obtains in this case. The NLRC had, therefore, the full discretion to grant or deny Ramirez’s motion to reduce the amount of the appeal bond. The finding of the labor tribunal that Ramirez did not present sufficient justification for the reduction thereof cannot be said to have been done with grave abuse of discretion.27

While Section 6, Rule VI of the NLRC’s New Rules of Procedure allows the Commission to reduce the amount of the bond, the exercise of the authority is not a matter of right on the part of the movant, but lies within the sound discretion of the NLRC upon a showing of meritorious grounds.28 It is daylight-clear from the foregoing that while the bond may be reduced upon motion by the employer, this is subject to the conditions that (1) the motion to reduce the bond shall be based on meritorious grounds; and (2) a reasonable amount in relation to the monetary award is posted by the appellant; otherwise, the filing of the motion to reduce bond shall not stop the running of the period to perfect an appeal. The qualification effectively requires that unless the NLRC grants the reduction of the cash bond within the 10-day reglementary period, the employer is still expected to post the cash or surety bond securing the full amount within the said 10-day period. We have always stressed that Article 223, which prescribes the appeal bond requirement, is a rule of jurisdiction and not of procedure. There is little leeway for condoning a liberal interpretation thereof, and certainly none premised on the ground that its requirements are mere technicalities. It must be emphasized that there is no inherent right to an appeal in a labor case, as it arises solely from grant of statute, namely, the Labor Code. For the same reason, we have repeatedly emphasized that the requirement for posting the surety bond is not merely procedural but jurisdictional and cannot be trifled with. Non-compliance with such legal requirements is fatal and has the effect of rendering the judgment final and executory.29 That settled, we next resolve the issue of whether or not the Court of Appeals correctly dismissed the petition of Ramirez. The Court of Appeals found that he committed the following fatal defects in his petition: 1. Failure of petitioner to properly verify the petition in accordance with A.M. No. 00-2-10-SC amending Section 4, Rule 7 in relation to Section 1, Rule 65 of the Rules of Court which now requires that a pleading must be verified by an affidavit that the affiant has read the pleading and the allegations therein are true and correct of his personal knowledge or based on authentic records, as a consequence of which the petition is treated as an unsigned pleading, which under Section 3, Rule 7 of the Rules of Court, produces no legal effect. 2. Petitioner failed to indicate in the petition the material dates showing when notice of the resolution subject hereof was received and when the motion for reconsideration was filed in violation of Section 3, Rule 46 of the Rules of Court.30 On Ramirez’s failure to verify his petition, it is true that verification is merely a formal requirement intended to secure an assurance that matters that are alleged are true and correct. Thus, the court may simply order the correction of unverified pleadings or act on them and waive strict compliance with the rules.31 However, this Court invariably sustains the Court of Appeals’ dismissal of the petition on technical grounds under this provision, unless considerations of equity and substantial justice present cogent reasons to hold otherwise. In Moncielcoji Corporation v. National Labor Relations Commission,32 the Court states the rationale – Rules of procedure are tools designed to promote efficiency and orderliness as well as to facilitate attainment of justice, such that strict adherence thereto is required. The application of the Rules may be relaxed only when rigidity would result in a defeat of equity and substantial justice. But, petitioner has not presented any persuasive reason for this Court to be liberal, even pro hac vice. Thus, we sustain the dismissal of its petition by the Court of Appeals on technical grounds. Again as in the NLRC, Ramirez has not shown any justifiable ground to set aside technical rules for his failure to comply with the requirement regarding the verification of his petition. For the same reasons above, we also find no reversible error in the assailed resolution of the Court of Appeals dismissing Ramirez’s petition on the ground of failure to state material dates, because in filing a special civil action for certiorari without indicating the requisite material date therein, Ramirez violated basic tenets of remedial law, particularly Rule 65 of the Rules of Court, which states: SECTION 1. Petition for certiorari. – x x x.

x x x x The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46. On the other hand, the pertinent provision under Rule 46 is explicit: Sec. 3. Contents and filing of petition; effect of non-compliance with requirements. – x x x . In actions filed under Rule 65, the petition shall further indicate the material dates showing when notice of the judgment or final order or resolution subject thereof was received, when a motion for new trial or reconsideration, if any, was filed and when notice of the denial thereof was received. x x x x The failure of the petitioner to comply with any of the foregoing requirements shall be sufficient ground for the dismissal of the petition. There are three material dates that must be stated in a petition for certiorari brought under Rule 65. First, the date when notice of the judgment or final order or resolution was received; second, the date when a motion for new trial or for reconsideration was filed; and third, the date when notice of the denial thereof was received. In the case before us, the petition filed with the Court of Appeals failed to indicate when the notice of the NLRC Resolution was received and when the Motion for Reconsideration was filed, in violation of Rule 65, Section 1 (2nd par.) and Rule 46, Section 3 (2nd par.). 1avvphi1

As explicitly stated in the aforementioned Rule, failure to comply with any of the requirements shall be sufficient ground for the dismissal of the petition. The rationale for this strict provision of the Rules of Court is not difficult to appreciate. In Santos v. Court of Appeals,33 the court explains that the requirement is for purpose of determining the timeliness of the petition, thus: The requirement of setting forth the three (3) dates in a petition for certiorari under Rule 65 is for the purpose of determining its timeliness. Such a petition is required to be filed not later than sixty (60) days from notice of the judgment, order or Resolution sought to be assailed. Therefore, that the petition for certiorari was filed forty-one (41) days from receipt of the denial of the motion for reconsideration is hardly relevant. The Court of Appeals was not in any position to determine when this period commenced to run and whether the motion for reconsideration itself was filed on time since the material dates were not stated. x x x. In the instant case, the petition was bereft of any persuasive explanation as to why Ramirez failed to observe procedural rules properly. 34 Quite apparent from the foregoing is that the Court of Appeals did not err, much less commit grave abuse of discretion, in denying due course to and dismissing the petition for certiorari for its procedural defects. Ramirez’s failure to verify and state material dates as required under the rules warranted the outright dismissal of his petition. We are not unmindful of exceptional cases where this Court has set aside procedural defects to correct a patent injustice. However, concomitant to a liberal application of the rules of procedure should be an effort on the part of the party invoking liberality to at least explain its failure to comply with the rules. In sum, we find no sufficient justification to set aside the NLRC and Court of Appeals resolutions. Thus, the decision of the Labor Arbiter is already final and executory and binding upon this Court.35 The relaxation of procedural rules cannot be made without any valid reasons proffered for or underpinning it. To merit liberality, Ramirez must show reasonable cause justifying his non-compliance with the rules and must convince the court that the outright dismissal of the petition would defeat the administration of substantive justice. The desired leniency cannot be accorded, absent valid and compelling reasons for such procedural lapse. The appellate court saw no compelling need meriting the relaxation of the rules; neither do we see any.36 Wherefore, premises considered, the petition is Denied for lack of merit. The Resolutions of the Court of Appeals dated 13 July 2007 and 7 March 2008 and the Resolutions of the

NLRC dated 29 September 2006 and 20 December 2006 are AFFIRMED. Costs against petitioner. SO ORDERED.

G.R. No. 106915 August 31, 1993 JARDINE DAVIES, INC., petitioner,

vs. NATIONAL LABOR RELATIONS COMMISSION, FOURTH DIVISION, CEBU CITY, and SALVADOR SALUTIN,respondents. Hilado, Hagad, & Hilado Law Office for petitioner. Romeo B. Esuerte for private respondent. VITUG, J.: The instant petition for certiorari seeks the reversal of the resolution of respondent National

Labor Relations Commission, dated 22 July 1992, which declared private respondent Salvador Salutin as not having abandoned his work by his alleged failure to report for work during the pendency of the petitioner's appeal before the respondent Commission. Respondent Salvador Salutin ("Salutin") was employed by petitioner Jardine Davies, Inc. ("JDI"), on 15 July 1985, as a demonstrator/agronomist to provide services relating to, and to give advice on, the promotion and use of JDI's pesticides and other products. The controversy that spawned two (2) special Civil actions for certiorari (this instance

included) with this Court, began when respondent Salutin filed a complaint against petitioner JDI for illegal dismissal, with prayer for reinstatement and backwages or, in the alternative, separation pay plus wage differential, service incentive leave pay, thirteenth (13th) month pay, holiday pay, moral and exemplary damages, and attorney's fees. The complaint was decided by the Labor Arbiter in favor of respondent Salutin in a decision, dated 08 August 1991, the decretal portion of which reads: WHEREFORE, PREMISES CONSIDERED, respondent Jardine Davies, Inc./Jardine Agchem is hereby ordered to reinstate complaint to his former position, without loss of seniority and other rights, and with backwages, in amount of FIFTY SIX THOUSAND SEVEN HUNDRED PESOS (P56,700.00), without deduction and qualification. Respondent is further ordered to pay complaint the following: a.) 13th month pay P 8,100.00 b.) Holiday pay 13,115.84 c.) Service Incentive pay 1,557.60 d.) Moral Damages 20,000.00 e.) Exemplary Damages 10,000.00 f.) Attorney's fees, which is ten percent (10%) of the total awarded amount. SO ORDERED. JDI appealed the case to the National Labor Relations Commission (NLRC), and it posted a supersedeas bond to answer for the monetary awards. It also reinstated Salutin, "on payroll only", beginning 26 August 1991, 1 in compliance with the writ of execution issued

by the Labor Arbiter pursuant to Article 223, paragraph 3, of the Labor Code. In a decision, dated 17 October 1991, NLRC dismissed JDI's appeal for lack of merit but modified the decision by eliminating the awards given for holiday pay, service incentive leave pay, moral and exemplary damages. 2 A motion for reconsideration was filed which was denied in NLRC's resolution of 13 January 1992. 3 On 14 February 1992, JDI filed its first petition for certiorari with this Court, docketed as

G.R. No. 103720, assailing the 17 October 1991 decision and the resolution of 13 January 1992 of respondent Commission. In our resolution, dated 26 February 1992, the petition was dismissed for failure to comply with this Court's Circular No. 28-91 on forum-shopping. Its subsequent motion for reconsideration was itself denied on 20 May 1992. The resolution of 26 February 1992 became final and executory on 19 June 1992, and an entry of judgment was accordingly made on 20 August 1992. At the time when the above narrated events were still unfolding, some material facts occured beginning with JDI's appeal to the NLRC on the 08 August 1991 decision of the

Labor Arbiter. Shortly after the reinstatement of Salutin "on payroll only", JDI sent a letter, dated 21 September 1991, to Salutin directing him to report for work to their Bacolod Branch Manager. Salutin, as directed reported on the 24th of September 1991 at around 9:20 a.m. He did not stay long, however, since after fifteen minutes or so, he left and was reported not to have thereafter returned for work. JDI forthwith stopped further payment of salary to Salutin. On 17 October 1991, JDI filed a "Manisfestation and Motion" with the respondent Commission stating, inter alia, that:

Salutin be considered as having abandoned his work considering his continuous absence of more than three (3) weeks since he was required to report for work . . . and that any award for reinstatement to his former position, without loss of seniority and other rights, in the Arbiter's decision subject of this appeal be considered and held as waived or lost. 4

Salutin opposed the motion, claiming that he was forced to leave in haste because he was then suffering from a serious ailment. He submitted a medical certificate to support his claim. 5

On 13 January 1992, respondent Commission denied JDI's "Manifestation & Motion" stating, among other things, that: As to the issue of whether the complaint-appellee Salvador Salutin is guilty of work abandonment, this is a new and factual matter which has to be determined and resolved in appropriate proceedings before the Arbitration Branch, more especially in the present case, where the charge of abandonment is seriously controverted. Prescinding from its receipt of an information that Salutin was employed elsewhere, JDI filed an ex parte motion, dated 16 June 1992, to set for hearing the aforestated "Manifestation and Motion." 6 Salutin, on his part, also filed a motion praying that JDI be ordered to release his withheld salary, 7 claiming that he had reported for work when he recovered from his ailment on 11 December 1991. 8 On 22 July 1992, respondent Commission issued its assailed resolution stating, viz:

WHEREFORE, Premises considered, the respondent's prayer to declare or consider the complainant to have abandoned his job for his alleged failure to report back to work during the pendency of the appeal in this case is hereby denied for lack of merit. The complainant's motion for release of his salary since 24 September 1991, until he formally seeks for the enforcement of the decision is likewise denied. SO ORDERED. When the motion for reconsideration was likewise denied, JDI instituted on 18 September 1992 the present petition for certiorari.

During the pendency of this petition, JDI filed an "urgent motion for the issuance of writ of preliminary injunction and/or restraining order" to prevent the respondent Commission from enforcing its resolution of 22 July 1992 and 25 August 1992 insofar as it ordered the reinstatement of Salutin. In its resolution, dated 3 March 1993, this Court resolved to issue a temporary restraining order. Petitioner raises this sole assignment of error, to wit: THE RESPONDENT COMMISSION ACTED WITH GRAVE ABUSE OF DISCRETION IN DENYING PETITIONER'S CONTENTION/SUBMISSION THAT PRIVATE RESPONDENT SALUTIN SHOULD BE CONSIDERED AS HAVING ABANDONED HIS WORK WHEN HE FAILED TO REPORT FOR WORK PENDING THE PETITIONER-EMPLOYER'S APPEAL FROM THE ARBITER'S DECISION GRANTING REINSTATEMENT, ALTHOUGH AT THAT TIME HE WAS ON REINSTATEMENT ON PAYROLL — THIS NOTWITHSTANDING PETITIONER'S SHOWING THAT SUCH FAILURE TO REPORT WAS BECAUSE RESPONDENT-EMPLOYEE WAS THEN WORKING ALSO WITH ANOTHER COMPANY, HENCE HE WAS RECEIVING SALARIES FROM BOTH. In the subsequent pages of its petition, JDI paraphrased the assigned issue in this wise: Is Salutin, who was then on payroll reinstatement since 26 August 1991, not guilty of abandonment when his failure to report for work was because he was also working for another entity from 01 September 1991 to 31 December 1991? Correlatively, did respondent Commission not gravely abuse its discretion when it did not take into consideration such other employment?

Our answer is in the negative. The records show that at the time JDI filed its Manifestation and Motion, dated 17 October 1991, the sole basis of its prayer for a declaration that Salutin abandoned his work was his alleged unauthorized absences from the date he was notified to report for work. 11 A shift to

a new focus took place when, on 30 January 1992, JDI, at its request, received a letter-certification issued by the Officer-in-Charge of King's Enterprises of Iloilo City that Salutin was employed by Monsato Philippines, Inc., from 01 September to 31 December 1991, as Aggressive Crop Technician, for which he was paid P5,146.00 per month. 12 Thus, this was the reason given by JDI in its ex parte motion, dated 16 June 1992, to set for hearing the Manifestation and Motion of 17 October 1991. NLRC denied the said ex parte motion in the now assailed resolution of 22 July 1992. When JDI filed its first petition for certiorari (in G.R. No. 103720) with this Court on 14

February 1992, assailing the 17 October 1991 decision of NLRC, it also raised, as an added argument on the alleged abandonment of work by Salutin, the fact that he was gainfully employed elsewhere. 13 Considering that this matter was thus already taken up by the petitioner in its first petition for certiorari, which this Court dismissed with finality, the

petitioner should really now be barred from invoking anew that issue in this present (second) petition. Be that as it may, the same fate of dismissal is still inevitable. Although this Court is not a trier of facts, it may still wade through the records of a case if only to prevent any possible misgiving in its ultimate disposition. 14 The petitioner's evidence to establish Salutin's

supposed abandonment of work is the certification of employment issued by King's Enterprises at the request of herein petitioner to the effect that Salutin had indeed been employed by Monsato Philippines, Inc., during the period from 01 September to 31 December 1991. Is this enough? What we have heretofore said is this — For abandonment to constitute a valid cause for termination of employment, there must be a deliberate unjustified refusal of the employee to resume his employment. This refusal must be clearly shown. Mere absence is not sufficient; it must be accompanied by overt acts pointing to the fact that the employee simply does not want to work anymore. 15

Abandonment of position is a matter of intention expressed in clearly certain and unequivocal acts. In this instance, however, certain uncontroverted facts show just exactly the opposite. Hence, Salutin did report, as directed, on 24 September 1991, but that he could not stay long because he was ailing at that time; he, although perhaps belatedly made, did seek medical consultation on 7 November 1991, at the Corazon Locsin Montelibano Memorial Regional Hospital, for "peptic ulcer"; and on 11 December 1991, he did, in fact, manifest his desire to assume his work with the petitioner. This Court's resolution of 26 February 1992, denying the petition in G.R. No. 103720, became final and executory on 19 June 1992. Respondent Salutin's interim employment, stressed by the petitioner, did not stain the picture at all. Here, we second the well-considered view of NLRC, thus — The order of immediate reinstatement pending appeal, in cases of illegal dismissal is an ancillary relief under R.A. 6715 granted to a dismissed employee to cushion him and his family against the impact of economic dislocation or abrupt loss of earnings. If the employee chooses not to report for work pending resolution of the case appeal, he foregoes such a temporary relief and is not paid of his salary. The final determination of the rights and obligations respectively of the parties is the ultimate and final resolution of this Commission. WHEREFORE, the petition is hereby DISMISSED. The questioned resolutions of the National Labor Relations Commission are AFFIRMED, and the temporary restraining order issued by this Court is hereby LIFTED. SO ORDERED.