GENERAL MILLING CORPORATION AND EARL TIMOTHY CONE, to the necessity of employing petitioner Cone, is, again, bereft
petitioner Cone, is, again, bereft of legal
PETITIONERS, VS. HON. RUBEN D. TORRES, IN HIS CAPACITY AS
SECRETARY OF LABOR AND EMPLOYMENT, HON. BIENVENIDO E.
LAGUESMA, IN HIS CAPACITY AS ACTING SECRETARY OF LABOR
AND EMPLOYMENT, AND BASKETBALL COACHES ASSOCIATION
OF THE PHILIPPINES, RESPONDENTS.
G.R. No. 93666, April 22, 1991
FACTS:
the National Capital Region of the Department of Labor and Employment issued
Alien Employment Permit in favor of petitioner Earl Timothy Cone, a United
States citizen, as sports consultant and assistant coach for petitioner General
Milling Corporation ("GMC").
Sometime later, the Board of Special Inquiry of the Commission on Immigration
and Deportation later approved petitioner Cone's application for a change of
admission status from temporary visitor to prearranged employee.
On 9 February 1990, petitioner GMC requested renewal of petitioner Cone's alien
employment permit. GMC also requested that it be allowed to employ Cone as
full-fledged coach. The DOLE Regional Director, Luna Piezas, granted the
request. Thus, an Alien Employment Permit was issued.
Private respondent Basketball Coaches Association of the Philippines ("BCAP")
appealed the issuance of said alien employment permit to the respondent Secretary
of Labor who later issued a decision ordering cancellation of petitioner Cone's
employment permit on the ground that there was no showing that there is no person
in the Philippines who is competent, able and willing to perform the services
required nor that the hiring of petitioner Cone would redound to the national
interest.
ISSUE:
WON respondent Secretary of Labor gravely abused his discretion when he
revoked petitioner Cone's alien employment permit.
HELD:
No. Petitioner GMC's claim that hiring of a foreign coach is an employer's
prerogative has no legal basis at all. Under Article 40 of the Labor Code, an
employer seeking employment of an alien must first obtain an employment permit
from the Department of Labor. Petitioner GMC's right to choose whom to employ
is, of course, limited by the statutory requirement of an alien employment permit.
Petitioners' contention that respondent Secretary of Labor should have
deferred to the findings of Commission on Immigration and Deportation as
basis. The Labor Code itself specifically empowers respondent Secretary to make
a determination as to the availability of the services of a "person in the Philippines
who is competent, able and willing at the time of application to perform the
services for which an alien is desired." In short, the Department of Labor is the
agency vested with jurisdiction to determine the question of availability of local
workers.
ALFREDO BONGAR, PETITIONER, VS. NATIONAL LABOR
RELATIONS COMMISSION AND AMA COMPUTER COLLEGE,
RESPONDENTS.
G.R. No. 107234, August 24, 1998
FACTS:
Petitioners Alfredo R. Bongar was employed as instructor by respondent AMA
Computer College (AMA) in its Social Science and Languages Department. His
employment contract, which was renewed several times, commenced on
November 28, 1986 and ended on May 31, 1990 when AMA decided not to renew
his contract which was due to expire on June 2, 1990.
After having served for more than three years, which is the probationary period
for teachers as provided for by the Manual of Regulations for Private Schools,
petitioner claimed that he had acquired the status of a permanent employee; hence
he is entitled to his tenurial security.
AMA argued that petitioner’s severance from employment was due to the
expiration of his contract. Another version profferred for the latter’s dismissal was
that students lodged numerous complaints before the school’s administration
regarding petitioner’s unsatisfactory performance. Furthermore, AMA contended
that petitioner could not be classified as a regular employee as the employment
record would show that he has served as full-time instructor only for two years
and nine and a half months, short of the three-year full-time service required by
law.
LA ruled in favor of the petitioner ordering respondents to pay the separation pay
and backwages but dismissing all other issues and NLRC affirmed the same.
ISSUE:
WON the petitioner is to be considered as a regular employee and was illegally
dismissed.
HELD:
YES. It must be noted that the principal cause of petitioner’s dismissal was the
alleged expiration of his teaching contract. This contention, however, is negated
by the fact that petitioner, as the record shows, had rendered service for nearly four
years. AMA’s contention that petitioner could not qualify as a regular employee
for failure to comply with the three-year full-time service rule is likewise
unavailing. Thus, what is patent is that petitioner was not afforded the twin
requirements of notice and hearing which constitute the essential elements of due
process, thus making his dismissal illegal.
For further discussion, as to entitlement of reinstatement/separation pay and
backwages and retirement benefits:
In view thereof, “an employee who is unjustly dismissed from work shall be
entitled to reinstatement without loss of seniority rights and to his backwages
computed from the time his compensation was withheld from him up to the time
of his reinstatement.” This apparently unqualified rule, however, admits of an
exception. Thus, an illegally dismissed employee is entitled to: (1) either
reinstatement if viable or separation pay if reinstatement is no longer viable, and
(2) backwages. Jurisprudence abound to the effect that the grant of separation pay
can substitute if reinstatement is not feasible, such as in the case of a strained
employer-employee relationship or when the work or position formerly held by
the dismissed employee no longer exists.
To these specified circumstances, we add another. In the instant case, while in the
course of the prosecution of his claim, petitioner was already in the twilight years
of his employment. In Reyes v. Philippine Duplicators Inc., the Court held that a
company should exercise caution and care in dealing with its employees to prevent
suspicion that its dismissal of an employee is only a scheme to evade its
responsibility of granting retirement benefits. Thus, for having full backwages, but
additionally, to his retirement benefits pursuant to any collective bargaining
agreement in the workplace or, in the absence thereof, as provided in Section 14,
Book VI of the Implementing Rules of the Labor Code.
MITSUBISHI MOTORS PHILIPPINES CORPORATION, PETITIONER,
VS. CHRYSLER PHILIPPINES LABOR UNION AND NELSON PARAS,
RESPONDENTS.
G.R. No. 148738, June 29, 2004
FACTS:
Mitsubishi Motors Philippines Corporation (MMPC) is a domestic corporation
engaged in the assembly and distribution of Mitsubishi motor vehicles. Chrysler
Philippines Labor Union (CPLU) is a legitimate labor organization and the duly
certified bargaining agent of the hourly-paid regular rank and file employees of
MMPC. Nelson Paras was a member of CPLU. His wife, Cecille Paras, was the
President of the Chrysler Philippines Salaried Employees Union (CPSU).
Nelson Paras was first employed by MMPC as a shuttle bus driver on March 19,
1976. He resigned on June 16, 1982. He applied for and was hired as a diesel
mechanic and heavy equipment operator in Saudi Arabia from 1982 to 1993.
When he returned to the Philippines, he was re-hired as a welder-fabricator at the
MMPC tooling shop from October 3, 1994 to October 31, 1994. On October 29,
1994, his contract was renewed from November 1, 1994 up to March 3, 1995.
Sometime in May of 1996, Paras was re-hired on a probationary basis as a
manufacturing trainee at the Plant Engineering Maintenance Department. Paras
started reporting for work on May 27, 1996. Paras was evaluated by his immediate
supervisors Lito R. Lacambacal and Wilfredo J. Lopez after six (6) months, and
received an average rating. Later, Lacambacal informed Paras that based on his
performance rating, he would be regularized.
However, the Department and Division Managers, A.C. Velando and H.T.
Victoria, including Mr. Dante Ong, reviewed the performance evaluation made on
Paras. They unanimously agreed, along with Paras’ immediate supervisors, that
the performance of Paras was unsatisfactory. As a consequence, Paras was not
considered for regularization. On November 26, 1996, he received a Notice of
Termination informing him that his services were terminated effective the said
date since he failed to meet the required company standards for regularization.
ISSUE:
(a) Whether or not respondent Paras was already a regular employee on November
26, 1996;
(b) Whether or not he was legally dismissed.
HELD:
A. Regularization of Employment
YES. Indeed, an employer, in the exercise of its management prerogative, may
hire an employee on a probationary basis in order to determine his fitness to
perform work. Under Article 281 of the Labor Code, the employer must inform the
employee of the standards for which his employment may be considered for
regularization. Such probationary period, unless covered by an apprenticeship
agreement, shall not exceed six (6) months from the date the employee started
working. The employee’s services may be terminated for just cause or for his
failure to qualify as a regular employee based on reasonable standards made
known to him.
Respondent Paras was employed as a management trainee on a probationary basis.
During the orientation conducted on May 15, 1996, he was apprised of the
standards upon which his regularization would be based. He reported for work on
May 27, 1996. As per the company’s policy, the probationary period was from
three (3) months to a maximum of six (6) months.
 negligence has been defined to be the want or absence of even slight care or
Applying Article 13 of the Civil Code, the probationary period of six (6) months diligence as to amount to a reckless disregard of the safety of person or property.
consists of one hundred eighty (180) days. This is in conformity with paragraph It evinces a thoughtless disregard of consequences without exerting any effort to
one, Article 13 of the Civil Code, which provides that the months which are not avoid them. A careful perusal of the records of this case does not show that
designated by their names shall be understood as consisting of thirty (30) days respondent Paras was grossly negligent in the performance of his duties.
each. The number of months in the probationary period, six (6), should then be
multiplied by the number of days within a month, thirty (30); hence, the period of Considering that respondent Paras was not dismissed for a just or authorized cause,
one hundred eighty (180) days. his dismissal from employment was illegal. Furthermore, the petitioner’s failure
to inform him of any charges against him deprived him of due process.
As clearly provided for in the last paragraph of Article 13, in computing a period,
the first day shall be excluded and the last day included. Thus, the one hundred
eighty (180) days commenced on May 27, 1996, and ended on November 23,
1996. The termination letter dated November 25, 1996 was served on respondent
Paras only at 3:00 a.m. of November 26, 1996. He was, by then, already a regular
employee of the petitioner under Article 281 of the Labor Code.

B. The Legality of The Dismissal

NO. An employee cannot be dismissed except for just or authorized cause as found
in the Labor Code and after due process. The following grounds would justify the
dismissal of an employee:

(a) Serious misconduct or willful disobedience by the employee of the

lawful orders of the employer or representative in connection with his
work;

(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed in him
by his employer or duly authorized representative;

(d) Commission of a crime or offense by the employee against the person

of his employer or of any immediate member of his family or his duly
authorized representative; and

(e) Other causes analogous to the foregoing.

The basis for which respondent Paras’ services were terminated was his alleged
unsatisfactory rating arising from poor performance. It is a settled doctrine that the
employer has the burden of proving the lawfulness of his employee’s
dismissal. The validity of the charge must be clearly established in a manner
consistent with due process.

Under Article 282 of the Labor Code, an unsatisfactory rating can be a just cause
for dismissal only if it amounts to gross and habitual neglect of duties. Gross