Severino Santos
DECISION
himP116,135.45
as
retirement
basis.
Respondents,
differential
noting
pay
that
amounted
the
to
retirement
pay,
five
months
pay
were
OF
A
covered
employee who retires
pursuant to RA 7641
shall be entitled to
retirement
pay
equivalent to at least
one-half (1/12) month
salary for every year of
service, a fraction of at
least six (6) months
being considered as
one whole year.
The
law
is
explicit that one-half
month
salary
shall
mean fifteen (15) days
plus one-twelfth (1/12) of
the 13thmonth pay and
the cash equivalent of
not more than five (5)
days service incentive
leaves
unless
the
parties
provide
for
broader
inclusions. Evidently,
the law expanded the
concept of one-half
month salary from the
usual one-month salary
divided by two.
The retirement pay is equal to
half-months
pay
per
year
of
service. But
half-months
pay
is
expanded because it means not just
the salary for 15 days but also onetwelfth of the 13th-month pay and the
cash value of five-day service incentive
= P191,412.90
(COMPLETE
RETIREMENT
PAY). However,
inasmuch as
complainant
already
received P75,277.45, the retirement
differential pay due him is P116,135.45
(P191,412.90P75,277.45). (underscorin
g partly in the original and partly
supplied)
The
National
Labor
Relations
Commission
Arbiters
complaint
however,
by
ruling
and
dismissed
Decision[3] dated
ordered
April
respondents
to
petitioners
23,
pay
2008. It,
retirement
that
since
petitioner
was
paid
on
purely
Petitioners
motion
for
reconsideration
was
coverage
provision.
of
this
x x x x (emphasis and
underscoring supplied)
ruled
by
the
Labor
Arbiter,
petitioners
a difference
between
drivers
paid
under
the
Bus
Transport
Systems,
Inc.,
v.
to
engaged
on
task
or
contract basis,
purely commission basis. Said
phrase should be related with
field personnel, applying the rule
on ejusdem generis that general and
unlimited terms are restrained and
limited by the particular terms that
they
follow. Hence,
employees
engaged on task or contract basis
or paid
on
purelycommission basis are not
automatically exempted from the
grant of service incentive leave,
unless, they
fall under the
classification of field personnel.
xxxx
According to Article 82 of the
Labor Code, field personnel shall
refer
to
non-agricultural
employees who regularly perform
their duties away from the
principal place of business or
branch office of the employer and
whose actual hours of work in the
field cannot be determined with
reasonable
certainty.
This
definition is further elaborated in
the Bureau of Working Conditions
(BWC), Advisory Opinion to Philippine
Technical-Clerical
Commercial
Employees Association which states
that:
As a general rule,
[field personnel] are those
whose performance of
their job/service is not
supervised
by
the
employer
or
his
representative,
the
workplace being away
from the principal office
and whose hours and days
of
work
cannot
be
determined
with
reasonable
certainty;
hence, they are paid
specific
amount
for
rendering specific service
or
performing
specific
work. If required to be
at specific places at
specific
times, employees
including
drivers
cannot be said to be
field personnel despite
the fact that they are
performing work away
from
the
principal
office of the employee.
SO ORDERED.
AUTO
BUS
TRANSPORT
SYSTEMS,
INC.,
petitioner,
vs. ANTONIO
BAUTISTA, respondent.
DECISION
CHICO-NAZARIO, J.:
Before
Us
is
a
Petition
for
Review
on Certiorari assailing
the
Decision[1] and
Resolution[2] of the Court of Appeals affirming the
Decision[3] of the National Labor Relations Commission
(NLRC). The NLRC ruling modified the Decision of the
Labor Arbiter (finding respondent entitled to the award
of 13th month pay and service incentive leave pay) by
deleting the award of 13th month pay to respondent.
THE FACTS
Since 24 May 1995, respondent Antonio Bautista
has been employed by petitioner Auto Bus Transport
Systems, Inc. (Autobus), as driver-conductor with travel
routes
Manila-Tuguegarao
via
Baguio,
BaguioTuguegarao via Manila and Manila-Tabuk via Baguio.
Respondent was paid on commission basis, seven
percent (7%) of the total gross income per travel, on a
twice a month basis.
On 03 January 2000, while respondent was driving
Autobus No. 114 along Sta. Fe, Nueva Vizcaya, the bus
he was driving accidentally bumped the rear portion of
Autobus No. 124, as the latter vehicle suddenly
stopped at a sharp curve without giving any warning.
ISSUES
1. Whether or not respondent is entitled to service
incentive leave;
2. Whether or not the three (3)-year prescriptive
period provided under Article 291 of the Labor
Code,
as
amended,
is
applicable
to
respondents claim of service incentive leave
pay.
RULING OF THE COURT
The disposition of the first issue revolves around
the proper interpretation of Article 95 of the Labor
committed.
than three
claim, said
accordance
DECISION
BRION, J.:
We resolve in this petition for review on certiorari1 the
challenge to the November 22, 2010 decision 2and the
January 31, 2011 resolution3 of the Court of
Appeals (CA) in CA-G.R. SP No. 116003. The CA
decision annulled and set aside the May 26, 2010
decision4 of the National Labor Relations
Commission (NLRC)5 which, in turn, affirmed the April
30, 2009 decision6 of the Labor Arbiter (LA). The LAs
decision dismissed respondent John G. Macasios
monetary claims.
The Factual Antecedents
In January 2009, Macasio filed before the LA a
complaint7 against petitioner Ariel L. David, doing
business under the name and style Yiels Hog Dealer,
for non-payment of overtime pay, holiday
pay and 13th month pay. He also claimed payment
for moral and exemplary damages andattorneys
fees. Macasio also claimed payment for service
incentive leave (SIL).8
Macasio alleged9 before the LA that he had been
working as a butcher for David since January 6, 1995.
Macasio claimed that David exercised effective control
and supervision over his work, pointing out that David:
(1) set the work day, reporting time and hogs to be
chopped, as well as the manner by which he was to
perform his work; (2) daily paid his salary of P700.00,
which was increased from P600.00 in 2007, P500.00 in
2006 and P400.00 in 2005; and (3) approved and
disapproved his leaves. Macasio added that David
owned the hogs delivered for chopping, as well as the
work tools and implements; the latter also rented the
workplace. Macasio further claimed that David
employs about twenty-five (25) butchers and delivery
drivers.
In his defense,10 David claimed that he started his hog
dealer business in 2005 and that he only has ten
employees. He alleged that he hired Macasio as a
butcher or chopper on pakyaw or task basis who is,
therefore, not entitled to overtime pay, holiday pay and
13th month pay pursuant to the provisions of the
Implementing Rules and Regulations (IRR) of the Labor
Code. David pointed out that Macasio: (1) usually
starts his work at 10:00 p.m. and ends at 2:00 a.m. of
the following day or earlier, depending on the volume
of the delivered hogs; (2) received the fixed amount of
P700.00 per engagement, regardless of the actual
number of hours that he spent chopping the delivered
hogs; and (3) was not engaged to report for work and,
accordingly, did not receive any fee when no hogs were
delivered.
Macasio disputed Davids allegations.11 He argued
that, first, David did not start his business only in
2005. He pointed to the Certificate of
Employment12 that David issued in his favor which
xxxx
Field personnel shall refer to non-agricultural
employees who regularly perform their duties away
from the principal place of business or branch office of
the employer and whose actual hours of work in the
field cannot be determined with reasonable certainty.
[emphases and underscores ours]
xxxx
(e) Field personnel and other employees whose
performance is unsupervised by the
employer including those who are engaged on
task or contract basis, purely commission basis,
or those who are paid a fixed amount for performing
Contreras and Dr. Eric S. Nubla, Maxicares VicePresident for Medical Services, was executed, effecting
the transfer of the former to Maybank Philippines
(Maybank) for a period of four (4) months, from August
5, 2003 to November 29, 2003, with a retainer fee
of P168.00 per hour.
Dr. Contreras reported to Maybank for one (1) day only.
On August 8, 2003, she filed a complaint before the LA
claiming that she was constructively dismissed.
Maxicare, on the other hand, insisted that there was no
constructive dismissal.
Ruling of the Labor Arbiter
On November 29, 2005, the LA rendered a decision
dismissing the complaint of Dr. Contreras for lack of
merit. The pertinent portions of the LAs ruling read:
If indeed complainant was forced to sign the contract
of August 4, 2003, she could not have reported to that
assignment under it in the first place. In reporting so,
she not only ratified the contract of service she signed
but also waived all her rights under their previous
agreement she is supposed to be entitled to enforce. It
may be that there present under the circumstance of a
breach of contractual obligation under the previous
undertaking which partakes the nature of constructive
dismissal based on evidence at hand. At that then,
complainant should have at such point ventilated the
matter before this forum. She did not. Instead, she
proceeded to sign or execute the questioned Service
Agreement with the respondent under the terms and
conditions therein stated. To a professional like her, a
Doctor, complainant should have refused as she is at
liberty, in refusing to sign even if what she claimed
there appears a threat of dismissal. In this case, she
even confirmed what she signed by reporting to duty
thereafter. And only after examining what she signed
that she realized she thought of initiating the present
complaint. In this regard, absent any showing that she
was forced to execute the disputed service agreement
of August 4, 2003, complainants complaint for
constructive dismissal can hardly be sustained by a
later change of heart.
Finding substantial basis to support the validity of the
Service Agreement of August 4, 2003 entered into by
the parties, the present complaint for constructive
dismissal must necessarily fail. Consequent claim as
relief therefor has no basis.7
Ruling of the NLRC
On March 16, 2007, upon appeal, the NLRC rendered a
decision8 reversing and setting aside the LAs decision.
It declared that Dr. Contreras was illegally dismissed
and ordered her reinstatement to her former or
substantially equivalent position and the payment of
her backwages.
Maxicares position
SO ORDERED.
SO ORDERED.
Aggrieved, PSI, Dr. Fuentes and Dr. Ampil interposed an
appeal to the Court of Appeals, docketed as CA-G.R. CV
No. 42062.
Incidentally, on April 3, 1993, the Aganas filed with the
RTC a motion for a partial execution of its Decision,
which was granted in an Order dated May 11, 1993.
Thereafter, the sheriff levied upon certain properties of
Dr. Ampil and sold them for P451,275.00 and delivered
the amount to the Aganas.
Following their receipt of the money, the Aganas
entered into an agreement with PSI and Dr. Fuentes to
indefinitely suspend any further execution of the RTC
Decision. However, not long thereafter, the Aganas
again filed a motion for an alias writ of execution
against the properties of PSI and Dr. Fuentes. On
September 21, 1993, the RTC granted the motion and
issued the corresponding writ, prompting Dr. Fuentes to
file with the Court of Appeals a petition for certiorari
and prohibition, with prayer for preliminary injunction,
docketed as CA-G.R. SP No. 32198. During its
pendency, the Court of Appeals issued a
Resolution5 dated October 29, 1993 granting Dr.
Fuentes prayer for injunctive relief.
On January 24, 1994, CA-G.R. SP No. 32198 was
consolidated with CA-G.R. CV No. 42062.
Meanwhile, on January 23, 1995, the PRC Board of
Medicine rendered its Decision6 in Administrative Case
No. 1690 dismissing the case against Dr. Fuentes. The
Board held that the prosecution failed to show that Dr.
Fuentes was the one who left the two pieces of gauze
inside Natividads body; and that he concealed such
fact from Natividad.
On September 6, 1996, the Court of Appeals rendered
its Decision jointly disposing of CA-G.R. CV No. 42062
and CA-G.R. SP No. 32198, thus:
WHEREFORE, except for the modification that the case
against defendant-appellant Dr. Juan Fuentes is hereby
SO ORDERED.
G.R. No. 176484
In the motion to dismiss it filed before the MedArbiter, the employer (CMC) alleged that 24
members of petitioner are supervisors, namely
x x x Rolando Lanzonas [sic] x x x.
A close scrutiny of the job descriptions of the
alleged supervisors narrated by the employer
only proves that except for the contention that
these employees allegedly supervise, they do
not however recommend any managerial
action. At most, their job is merely routinary in
nature and consequently, they cannot be
considered supervisory employees.
They are not therefore barred from
membership in the union of
rank[-]and[-]file, which the petitioner [the
union] is seeking to represent in the instant
case.38 (Emphasis and underscoring supplied)
xxxx
Admittedly, Dr. Lanzanas was a union member in the
hospital, which is considered indispensable to the
national interest. In labor disputes adversely affecting
the continued operation of a hospital, Article 263(g) of
the Labor Code provides:
ART. 263. STRIKES, PICKETING, AND
LOCKOUTS.
xxxx
(g) x x x x
x x x x. In labor disputes adversely
affecting the continued operation of such
hospitals, clinics or medical institutions, it
shall be the duty of the striking union or
locking-out employer to provide and maintain
an effective skeletal workforce of medical and
other health personnel, whose movement and
services shall be unhampered and unrestricted,
as are necessary to insure the proper and
adequate protection of the life and health of its
patients, most especially emergency cases, for
the duration of the strike or lockout. In such
cases, the Secretary of Labor and Employment
is mandated to immediately assume, within
twenty-four hours from knowledge of the
occurrence of such strike or lockout, jurisdiction
over the same or certify to the Commission for
compulsory arbitration. For this purpose, the
contending parties are strictly enjoined to
comply with such orders, prohibitions
and/or injunctions as are issued by the
Secretary of Labor and Employment or
the Commission, under pain of immediate
disciplinary action, including dismissal or
loss of employment status or payment by
the locking-out employer of backwages,
damages and other affirmative relief,