NITTO ENTERPRISES, PETITIONER, VS.

R, VS. The following day, Roberto Capili was asked to Three days after, or on August 6, 1990, private
NATIONAL LABOR RELATIONS COMMISSION, resign in a letter which reads: respondent formally filed before the NLRC
AND ROBERTO Arbitration Branch, National Capital Region a
CAPILI, RESPONDENTS. “August 2, 1990 complaint for illegal dismissal and payment of other
FIRST DIVISION Wala siyang tanggap ng utos mula sa superbisor at monetary benefits.
G.R. No. 114337, September 29, 1995 wala siyang experiensa kung papaano gamitin and
KAPUNAN, J.: "TOOL" sa pagbuhat ng salamin, sarili niyang On October 9, 1991, the Labor Arbiter rendered his
desisyon ang paggamit ng tool at may disgrasya at decision finding the termination of private
This is a petition for certiorari under Rule 65 of the nadamay pa ang isang sekretarya ng kompanya. respondent as valid and dismissing the money claim
Rules of Court seeking to annul the decision Sa araw ding ito limang (5) minuto ang nakakalipas for lack of merit. The dispositive portion of the
rendered by public respondent National Labor mula alas-singko ng hapon siya ay pumasok sa ruling reads:
Relations Commission, which reversed the decision shop na hindi naman sakop ng kanyang trabaho.
of the Labor Arbiter. Pinakialaman at kinalikot ang makina at “WHEREFORE, premises considered, the termination
nadisgrasya niya ang kanyang sariling kamay. is valid and for cause, and the money claims
Briefly, the facts of the case are as follows: Nakagastos ang kompanya ng mga sumusunod: dismissed for lack of merit.
Emergency and doctor fee P715.00 Medecines (sic) The respondent however is ordered to pay the
Petitioner Nitto Enterprises, a company engaged in and others 317.04 complainant the amount of P500.00 as financial
the sale of glass and aluminum products, hired Bibigyan siya ng kompanya ng Siyam na araw na assistance.
Roberto Capili sometime in May 1990 as an libreng sahod hanggang matanggal ang tahi ng SO ORDERED.”
apprentice machinist, molder and core maker as kanyang kamay.
evidenced by an apprenticeship agreement for a Tatanggapin niya ang sahod niyang anim na araw, Labor Arbiter Patricio P. Libo-on gave two reasons
period of six (6) months from May 28, 1990 to mula ika -30 ng Hulyo at ika-4 ng Agosto, 1990. for ruling that the dismissal of Roberto Capili was
November 28, 1990 with a daily wage rate of Ang kompanya ang magbabayad ng lahat ng gastos valid. First, private respondent who was hired as an
P66.75 which was 75% of the applicable minimum pagtanggal ng tahi ng kanyang kamay, pagkatapos apprentice violated the terms of their agreement
wage. ng siyam na araw mula ika-2 ng Agosto. when he acted with gross negligence resulting in
At around 1:00 p.m. of August 2, 1990, Roberto Sa lahat ng nakasulat sa itaas, hinihingi ng the injury not only to himself but also to his fellow
Capili who was handling a piece of glass which he kompanya ang kanyang resignasyon, kasama ng worker. Second, private respondent had shown that
was working on, accidentally hit and injured the leg kanyang confirmasyon at pag -ayon na ang lahat ng "he does not have the proper attitude in
of an office secretary who was treated at a nearby nakasulat sa itaas ay totoo. employment particularly the handling of machines
hospital. Later that same day, after office hours, ************************** without
private respondent entered a workshop within the Naiintindihan ko ang lahat ng nakasulat sa itaas, at authority and proper training."
office premises which was not his work station. ang lahat ng ito ay aking pagkakasala sa hindi
There, he operated one of the power press pagsunod sa alintuntunin ng kompanya. On July 26, 1993, the National Labor Relations
machines without authority and in the process (Sgd.) Roberto Capili Roberto Capili.” Commission issued an order reversing the decision
injured his left thumb. Petitioner spent the amount of the Labor Arbiter, the dispositive portion of which
of P1,023.04 to cover the On August 3, 1990 private respondent executed a reads:
medication of private respondent. Quitclaim and Release in favor of petitioner for and
in consideration of the sum of P1,912.79.
“WHEREFORE, the appealed decision is hereby set On April 22, 1994, a Writ of Execution was issued, Petitioner assails the NLRC's finding that private
aside. The respondent is hereby directed to which reads: respondent Roberto Capili cannot plainly be
reinstate complainant to his work last performed “NOW, THEREFORE, finding merit in [private considered an apprentice since no apprenticeship
with backwages computed from the time his wages respondent's] Motion for Issuance of the Writ, you program had yet been filed and approved at the
were withheld up to the time he is actually are hereby commanded to proceed to the premises time the agreement was executed. Petitioner
reinstated. The Arbiter of origin is hereby directed of [petitioner] Nitto Enterprises and Jovy Foster further insists that the mere signing of the
to further hear complainant's money claims and to located at No.1 74 Araneta Avenue, Portero, apprenticeship agreement already established an
dispose them on the basis of law and evidence Malabon, Metro Manila or at any other places where employer-apprentice relationship.
obtaining. SO ORDERED.” their properties are located and effect the
reinstatement of herein [private respondent] to his Petitioner's argument is erroneous.
The NLRC declared that private respondent was a work last performed or at the option of the
regular employee of petitioner by ruling thus: respondent by payroll reinstatement. The law is clear on this matter. Article 61 of the
You are also to collect the amount of P122,690.85 Labor Code provides:
“As correctly pointed out by the complainant, we representing his backwages as called for in the
cannot understand how an apprenticeship dispositive portion, and turn over such amount to “Contents of apprenticeship agreement. -
agreement filed with the Department of Labor only this Office for proper disposition.” Apprenticeship agreements, including the main
on June 7, 1990 could be validly used by the Labor rates of apprentices, shall conform to the rules
Arbiter as basis to conclude that the complainant Petitioner filed a motion for reconsideration but the issued by the Minister of Labor and Employment.
was hired by respondent as a plain `apprentice' on same was denied. Hence, the instant petition- for The period of apprenticeship shall not exceed six
May 28, 1990. Clearly, therefore, the complainant certiorari. months. Apprenticeship agreements providing for
was respondent's regular employee under Article The issues raised before us are the following: wage rates below the legal minimum wage, which
280 of the Labor Code, as early as May 28, 1990, in no case shall start below 75% per cent of the
who thus enjoyed the security of tenure guaranteed I applicable minimum wage, may be entered into
in Section 3, Article XIII of our 1987 Constitution. WHETHER OR NOT PUBLIC RESPONDENT NLRC only in accordance with apprenticeship
COMMITTED GRAVE ABUSE OF DISCRETION IN program duly approved by the Minister of
The complaint being for illegal dismissal (among HOLDING THAT PRIVATE RESPONDENT WAS NOT Labor and Employment. The Ministry shall
others) it then behooves upon respondent, pursuant AN APPRENTICE. develop standard model programs of
to Art. 277(b) and as ruled in Edwin Gesulgon vs. apprenticeship.”
NLRC, et al. (G.R. No. 90349, March 5, 1993, 3rd II
Div., Feliciano, J.) to prove that the dismissal of WHETHER OR NOT PUBLIC RESPONDENT NLRC In the case at bench, the apprenticeship agreement
complainant was for a valid cause. Absent such COMMITTED GRAVE ABUSE OF DISCRETION IN between petitioner and private respondent was
proof, we cannot but rule that the complainant was HOLDING THAT PETITIONER HAD NOT executed on May 28, 1990 allegedly employing the
illegally dismissed.” ADEQUATELY PROVEN THE EXISTENCE OF A VALID latter as an apprentice in the trade of "care
CAUSE IN TERMINATING THE SERVICE OF PRIVATE maker/molder.". On the same date, an
On January 28, 1994, Labor Arbiter Libo-on called RESPONDENT. apprenticeship program was prepared by petitioner
for a conference at which only private respondent's and submitted to the Department of Labor and
representative was present. We find no merit in the petition. Employment. However, the apprenticeship
Agreement was filed only on June 7, 1990.
Notwithstanding the absence of approval by the Hence, since the apprenticeship agreement between
Department of Labor and Employment, the petitioner and private respondent has no force and There is an abundance of cases wherein the Court
apprenticeship agreement was enforced the day it effect in the absence of a valid apprenticeship ruled that the twin requirements of due process,
was signed. program duly approved by the DOLE, private substantive and procedural, must be complied with,
respondent's assertion that he was hired not as an before valid dismissal exists. Without which, the
Based on the evidence before us, petitioner did not apprentice but as a delivery boy ("kargador" or dismissal becomes void.
comply with the requirements of the law. It is "pahinante") deserves credence. He should rightly The twin requirements of notice and hearing
mandated that apprenticeship agreements entered be considered as a regular employee of petitioner constitute the essential elements of due process.
into by the employer and apprentice shall be as defined by Article 280 of the Labor Code: This simply means that the employer shall afford
entered only in accordance with the worker ample opportunity to be heard and to
the apprenticeship program duly approved by the “ART. 280. Regular and Casual Employment. — The defend himself with the assistance of his
Minister of Labor and Employment. provisions of written agreement to the representative, if he so desires.
contrary notwithstanding and regardless of
Prior approval by the Department of Labor and the oral agreement of the parties, an Ample opportunity connotes every kind of
Employment of the proposed apprenticeship employment shall be deemed to be regular assistance that management must accord the
program is, therefore, a condition sine qua non where the employee has been engaged to employee to enable him to prepare adequately for
before an apprenticeship agreement can be validly perform activities which are usually necessary his defense
entered into. or desirable in the usual business or trade of including legal representation. As held in the case of
The act of filing the proposed apprenticeship the employer, except where the employment has Pepsi-Cola Bottling Co., Inc. v. NLRC:
program with the Department of Labor and been fixed for a specific project or undertaking the
Employment is a preliminary step towards its final completion or termination of which has been “The law requires that the employer must furnish
approval and does not instantaneously give rise to determined at the time of the engagement of the the worker sought to be dismissed with two (2)
an employer-apprentice relationship. employee or where the work or services to be written notices before termination of employee can
performed is seasonal in nature and the be legally effected: (1) notice which apprises the
Article 57 of the Labor Code provides that the State employment is for the duration of the season. employee of the particular acts or omissions for
aims to "establish a national apprenticeship An employment shall be deemed to be casual if it is which his dismissal is sought; and (2) the
program through the participation of employers, not covered by the preceding paragraph: Provided, subsequent notice which informs the employee of
workers and government and non-government That, any employee who has rendered at least one the employer's decision to dismiss him (Sec. 13,
agencies" and "to establish apprenticeship year of service, whether such service is continuous BP130; Sec. 2-6 Rule XIV, Book V, Rules and
standards for the protection of apprentices." To or broken, shall be considered a regular employee Regulations Implementing the Labor Code as
translate such objectives into existence, prior with respect to the activity in which he is employed amended). Failure to comply with the requirements
approval of the DOLE to any apprenticeship and his employment shall continue while such taints the dismissal with illegality. This procedure is
program has to be secured as a condition sine qua activity exists.” and pursuant to the constitutional mandatory; in the absence of which, any judgment
non before any such apprenticeship agreement can mandate to "protect the rights of workers and reached by management is void and inexistent
be fully enforced. The role of the DOLE in promote their welfare." (Tingson, Jr. vs. NLRC, 185 SCRA 498 [1990];
apprenticeship programs and agreements cannot be National Service Corp. vs. NLRC, 168 SCRA 122;
debased. Petitioner further argues that, there is a valid cause Ruffy vs. NLRC. 182 SCRA 365 [1990]).”
for the dismissal of private respondent.
The fact is private respondent filed a case of illegal Palad signed on 17 July 1997 an apprenticeship pay the complainant the amount of ONE THOUSAND
dismissal with the Labor Arbiter only three days agreement with petitioner. Palad received an SIX HUNDRED THIRTY-TWO PESOS (P1,632.00),
after he was made to sign a Quitclaim, a clear apprentice allowance of P138.75 daily. On 25 July representing her last salary and the amount of
indication that such resignation was not voluntary 1997, petitioner submitted its apprenticeship SEVEN THOUSAND TWO HUNDRED TWENTY EIGHT
and deliberate. program for approval to the Technical Education (P7,228.00) PESOS representing her prorated 13th
and Skills Development Authority (TESDA) of the month pay.
Private respondent averred that he was actually Department of Labor and Employment (DOLE). On All other issues are likewise dismissed. SO
employed by petitioner as a delivery boy 26 September 1997, the TESDA approved ORDERED.”
("kargador" or "pahinante"). petitioner's apprenticeship program.
He further asserted that petitioner "strong-armed" On appeal, the National Labor Relations
him into signing the aforementioned resignation According to petitioner, a performance evaluation Commission (NLRC) affirmed with modification the
letter and quitclaim without explaining to him the was conducted on 15 November 1997, where Labor Arbiter's decision, thus:
contents thereof. Petitioner made it clear to him petitioner gave Palad a rating of N.I. or "needs
that anyway, he did not have a choice. improvement" since she scored only 27.75% based “WHEREFORE, premises considered, the decision of
on a 100% performance indicator. Furthermore, the Arbiter dated 25 February 1999 is hereby
Petitioner cannot disguise the summary dismissal of according to the performance evaluation, Palad MODIFIED in that, in addition, respondents are
private respondent by orchestrating the latter's incurred numerous tardiness and absences. As a ordered to pay complainant's backwages for two (2)
alleged resignation and subsequent execution of a consequence, petitioner issued a termination notice months in the amount of P7,176.00 (P138.75 x 26
Quitclaim and Release. A judicious examination of dated 22 November 1997 to Palad, informing her of x 2 mos.). All other dispositions of the Arbiter as
both events belies any spontaneity on private her termination effective at the close of business appearing in the dispositive portion of his decision
respondent's part. hours of 28 November 1997. are AFFIRMED. SO ORDERED.”
WHEREFORE, finding no abuse of discretion
committed by public respondent National Labor Palad then filed a complaint for illegal dismissal, Upon denial of Palad's motion for reconsideration,
Relations Commission, the appealed decision is underpayment of wages, and non- payment of pro- Palad filed a special civil action for certiorari with
hereby AFFIRMED. rated 13th month pay for the year 1997. the Court of Appeals. On 12 November 2001, the
SO ORDERED. Court of Appeals rendered a decision, the
On 25 February 1999, the Labor Arbiter dismissed dispositive portion of which reads:
CENTURY CANNING CORPORATION, the complaint for lack of merit but ordered WHEREFORE, in view of the foregoing, the
PETITIONER, VS. COURT OF APPEALS AND petitioner to pay Palad her last salary and her pro- questioned decision of the NLRC is hereby SET
GLORIA C. PALAD, RESPONDENTS. rated 13th month pay. The dispositive portion of ASIDE and a new one entered, to wit:
SECOND DIVISION the Labor Arbiter's decision reads: a) finding the dismissal of petitioner to be
G.R. No. 152894, August 17, 2007 illegal;
CARPIO, J.: “WHEREFORE, premises considered, judgment is b) ordering private respondent to pay petitioner
hereby rendered declaring that the complaint for her underpayment in wages;
The Facts illegal dismissal filed by the complainant against the c) ordering private respondent to reinstate
On 15 July 1997, Century Canning Corporation respondents in the above-entitled case should be, petitioner to her former position without loss
(petitioner) hired Gloria C. Palad (Palad) as "fish as it is hereby DISMISSED for lack of merit. of seniority rights and to pay her full back-
cleaner" at petitioner's tuna and sardines factory. However, the respondents are hereby ordered to wages computed from the time
 compensation was withheld from her up to 2. WHETHER THE COURT OF APPEALS minimum wage, may be entered into only in
the time of her reinstatement; COMMITTED REVERSIBLE ERROR IN accordance with apprenticeship programs duly
d) ordering private respondent to pay petitioner HOLDING THAT PETITIONER HAD NOT approved by the Minister of Labor and
attorney's fees equivalent to ten (10%) per ADEQUATELY PROVEN THE EXISTENCE OF A Employment. The Ministry shall develop standard
cent of the monetary award herein; and VALID CAUSE IN TERMINATING THE model programs of apprenticeship.”
e) ordering private respondent to pay the costs SERVICE OF PRIVATE RESPONDENT.
of the suit. The Ruling of the Court In Nitto Enterprises v. National Labor Relations
SO ORDERED.” Commission, the Court cited Article 61 of the Labor
The petition is without merit. Code and held that an apprenticeship program
The Ruling of the Court of Appeals should first be approved by the DOLE before an
Registration and Approval by the TESDA of apprentice may be hired, otherwise the person
The Court of Appeals held that the apprenticeship Apprenticeship Program Required Before hired will be considered a regular employee. The
agreement which Palad signed was not valid and Hiring of Apprentices Court held:
binding because it was executed more than two
months before the TESDA approved petitioner's The Labor Code defines an apprentice as a worker “In the case at bench, the apprenticeship
apprenticeship program. The who is covered by a written apprenticeship agreement between petitioner and private
Court of Appeals cited Nitto Enterprises v. National agreement with an employer. One of the objectives respondent was executed on May 28, 1990
Labor Relations Commission, where it was held that of Title II (Training and Employment of Special allegedly employing the latter as an apprentice in
prior approval by the DOLE of the proposed Workers) of the Labor Code is to the trade of "care maker/molder." On the same
apprenticeship program is a condition sine qua non establish apprenticeship standards for the date, an apprenticeship program was prepared by
before an apprenticeship agreement can be validly protection of apprentices. In line with this objective, petitioner and submitted to the Department of
entered into. The Court of Appeals also held that Articles 60 and 61 of the Labor Code provide: Labor and Employment. However, the
petitioner illegally dismissed Palad. The Court of apprenticeship agreement was filed only on June 7,
Appeals ruled that petitioner failed to show that “ART. 60. Employment of apprentices. --Only 1990. Notwithstanding the absence of approval by
Palad was properly apprised of the required employers in the highly technical industries the Department of Labor and Employment, the
standard of performance. The Court of Appeals may employ apprentices and only in apprenticeship agreement was enforced the day it
likewise held that Palad was not afforded due apprenticeable occupations approved by the was signed.
process because petitioner did not comply with the Minister of Labor and Employment.”
twin requirements of notice and hearing. Based on the evidence before us, petitioner did not
“ART. 61. Contents of apprenticeship agreements. comply with the requirements of the law. It is
The Issues -- Apprenticeship agreements, including the wage mandated that apprenticeship agreements
rates of apprentices, shall conform to the rules entered into by the employer and apprentice
Petitioner raises the following issues: issued by the Minister of Labor and Employment. shall be entered only in accordance with the
1. WHETHER THE COURT OF APPEALS The period of apprenticeship shall not exceed six apprenticeship program duly approved by the
COMMITTED REVERSIBLE ERROR IN months. Apprenticeship agreements providing Minister of Labor and Employment.
HOLDING THAT PRIVATE RESPONDENT WAS for wage rates below the Prior approval by the Department of Labor and
NOT AN APPRENTICE; and legal minimum wage, which in no case shall Employment of the proposed apprenticeship
start below 75 percent of the applicable program is, therefore, a condition sine qua
non before an apprenticeship agreement can apprentices. Such intent is clear under Section 4 of Thus, the apprenticeship agreement is void because
be validly entered into. RA 7796: it lacked prior approval from the TESDA.

The act of filing the proposed apprenticeship “SEC. 4. Definition of Terms. -- As used in this Act: The TESDA's approval of the employer's
program with the Department of Labor and xxx apprenticeship program is required before the
Employment is a preliminary step towards its final j) "Apprenticeship" training within employment employer is allowed to hire apprentices. Prior
approval and does not instantaneously give rise to with compulsory related theoretical instructions approval from the TESDA is necessary to ensure
an employer-apprentice relationship. involving a contract between an apprentice and that only employers in the highly technical
an employer on an approved apprenticeable industries may employ apprentices and only in
Article 57 of the Labor Code provides that the State occupation; apprenticeable occupations. Thus, under RA 7796,
aims to "establish a national apprenticeship k) "Apprentice" is a person undergoing training employers can only hire apprentices for
program through the participation of employers, for an approved apprenticeable occupation apprenticeable occupations which must be officially
workers and government and non- government during an established period assured by an endorsed by a tripartite body and approved for
agencies" and "to establish apprenticeship apprenticeship agreement; apprenticeship by the TESDA. This is to ensure the
standards for the protection of apprentices." To l) "Apprentice Agreement" is a contract wherein protection of apprentices and to obviate possible
translate such objectives into existence, prior a prospective employer binds himself to train the abuses by prospective employers who may want to
approval of the DOLE to any apprenticeship apprentice who in turn accepts the terms of take advantage of the lower wage rates for
program has to be secured as a condition sine qua training for a recognized apprenticeable apprentices and circumvent the right of the
non before any such apprenticeship agreement can occupation emphasizing the rights, duties and employees to be secure in their employment.
be fully enforced. The role of the DOLE in responsibilities of each party;
apprenticeship programs and agreements cannot be m) "Apprenticeable Occupation" is an occupation The requisite TESDA approval of the apprenticeship
debased. officially endorsed by a tripartite body and program prior to the hiring of apprentices was
Hence, since the apprenticeship agreement between approved for apprenticeship by the Authority further emphasized by the DOLE with the issuance
petitioner and private respondent has no force and [TESDA];” of Department Order No. 68-04 on 18 August 2004.
effect in the absence of a valid apprenticeship Department Order No. 68-04, which provides the
program duly approved by the DOLE, private In this case, the apprenticeship agreement was guidelines in the implementation of the
respondent's assertion that he was hired not as an entered into between the parties before petitioner Apprenticeship and Employment Program of the
apprentice but as a delivery boy ("kargador" or filed its apprenticeship program with the TESDA for government, specifically states that no enterprise
"pahinante") deserves credence. He should rightly approval. Petitioner and Palad executed the shall be allowed to hire apprentices unless its
be considered as a regular employee of petitioner apprenticeship agreement on 17 July 1997 wherein apprenticeship program is registered and
as defined by Article 280 of the Labor Code x x x.” it was stated that the training would start on 17 approved by TESDA.
July 1997 and would end approximately in
Republic Act No. 7796 (RA 7796), which created the December 1997. On 25 July 1997, petitioner Since Palad is not considered an apprentice because
TESDA, has transferred the authority over submitted for approval its apprenticeship program, the apprenticeship agreement was enforced before
apprenticeship programs from the Bureau of Local which the TESDA subsequently approved on 26 the TESDA's approval of petitioner's apprenticeship
Employment of the DOLE to the TESDA. RA 7796 September 1997. Clearly, the apprenticeship program, Palad is deemed a regular employee
emphasizes TESDA's approval of the apprenticeship agreement was enforced even before the TESDA performing the job of a "fish cleaner." Clearly, the
program as a pre-requisite for the hiring of approved petitioner's apprenticeship program. job of a "fish cleaner" is necessary in petitioner's
business as a tuna and sardines factory. Under However, the NLRC reversed the finding of the The only conclusion We can infer is that this
Article 280 of the Labor Code, an employment is Labor Arbiter on the issue of the legality of Palad's evaluation was made belatedly, specifically,
deemed regular where the employee has been termination: after the filing of the case and during the
engaged to perform activities which are usually progress thereof in the Arbitral level, as
necessary or desirable in the usual business or “As to the validity of complainant's dismissal in her shown that nothing thereon indicate that
trade of the employer. status as an apprentice, suffice to state that the complainant was notified of the results. Its
findings of the Arbiter that complainant was authenticity therefor, is a big question mark,
dismissed due to failure to meet the standards is and hence lacks any credibility. Evidence, to
Illegal Termination of Palad nebulous. What clearly appears is that complainant be admissible in administrative proceedings,
already passed the probationary status of the must at least have a modicum of authenticity.
We shall now resolve whether petitioner illegally apprenticeship agreement of 200 hours at the time This, respondents failed to comply with. As such,
dismissed Palad. she was terminated on 28 November 1997 which complainant is entitled to the payment of her wages
was already the fourth month of the apprenticeship for the
Under Article 279 of the Labor Code, an employer period of 1000 hours. As such, under the Code, she remaining two (2) months of her apprenticeship
may terminate the services of an employee for just can only be dismissed for cause, in this case, for agreement.”
causes or for authorized causes. poor efficiency of performance on the job or in the
classroom for a prolonged period despite warnings Indeed, it appears that the Labor Arbiter's
Furthermore, under Article 277(b) of the Labor duly given to the apprentice. conclusion that petitioner validly terminated Palad
Code, the employer must send the employee who is We noted that no clear and sufficient evidence was based mainly on the performance evaluation
about to be terminated, a written notice stating the exist to warrant her dismissal as an allegedly conducted by petitioner. However, Palad
causes for termination and must give the employee apprentice during the agreed period. Besides alleges that she had no knowledge of the
the opportunity to be heard and to defend himself. the absence of any written warnings given to performance evaluation conducted and that she was
Thus, to constitute valid dismissal from complainant reminding her of "poor not even informed of the result of the alleged
employment, two requisites must concur: (1) the performance," respondents' evidence in this performance evaluation. Palad also claims she did
dismissal must be for a just or authorized cause; respect consisted of an indecipherable or not receive a notice of dismissal, nor was she given
and (2) the employee must be afforded an unauthenticated xerox of the performance the chance to explain. According to petitioner, Palad
opportunity to be heard and to defend himself. evaluation allegedly conducted on did not receive the termination notice because
complainant. This is of doubtful authenticity Palad allegedly stopped reporting for work after
In this case, the Labor Arbiter held that petitioner and/or credibility, being not only incomplete being informed of the result of the evaluation.
terminated Palad for habitual absenteeism and poor in the sense that appearing thereon is a
efficiency of performance. Under Section 25, Rule signature (not that of complainant) side by Under Article 227 of the Labor Code, the employer
VI, Book II of the Implementing Rules of the Labor side with a date indicated as has the burden of proving that the termination was
Code, habitual absenteeism and poor efficiency of "1/16/98". From the looks of it, this signature for a valid or authorized cause. Petitioner failed to
performance are among the valid causes for which is close to and appertains to the typewritten substantiate its claim that Palad was terminated for
the employer may terminate the apprenticeship position of "Division/Department Head", valid reasons. In fact, the NLRC found that
agreement after the probationary period. which is below the signature of complainant's petitioner failed to prove the authenticity of the
immediate superior who made the evaluation performance evaluation which petitioner claims to
indicated as "11-15-97." have conducted on Palad, where Palad received a
performance rating of only 27.75%. Petitioner G.R. No. 75112, August 17, 1992 the late Justice Desiderio Jurado and concurred in
merely relies on the performance evaluation to GUTIERREZ, JR., J.: by Justices Jose C. Campos, Jr. and Serafin E.
prove Palad's inefficiency. It was likewise not shown Camilon. Applying Civil Code provisions, the
that petitioner ever apprised Palad of the The private respondents, heirs of the late appellate court affirmed the trial court decision
performance standards set by the company. When Pontenciano Kapunan, seek reconsideration of the which ordered the payment of the P20,000.00
the alleged valid cause for the termination of decision rendered by this Court on October 16, liability in the Zenith Insurance Corporation policy,
employment is not clearly proven, as in this case, 1990 (Filamer Christian Institute v. Court Appeals, P10,000.00 moral damages, P4,000.00 litigation
the law considers the matter a case of illegal 190 SCRA 477) reviewing the appellate court's and actual expenses, and P3,000.00 attorney's
dismissal. conclusion that there exists an employer-employee fees.
relationship between the petitioner and its co-
Furthermore, Palad was not accorded due process. defendant Funtecha. The Court ruled that the It is undisputed that Funtecha was a working
Even if petitioner did conduct a performance petitioner is not liable for the injuries caused by student, being a part-time janitor and a scholar of
evaluation on Palad, petitioner failed to warn Palad Funtecha on the grounds that the latter was not an petitioner Filamer. He was, in relation to the school,
of her alleged poor performance. In fact, Palad authorized driver for whose acts the petitioner shall an employee even if he was assigned to clean the
denies any knowledge of the performance be directly and primarily answerable, and that school premises for only two (2) hours in the
evaluation conducted and of the result thereof. Funtecha was merely a working scholar who, under morning of each school day. Having a student
Petitioner likewise admits that Palad did not receive Section 14, Rule X, Book III of the Rules and driver's license, Funtecha requested the driver,
the notice of termination because Palad allegedly Regulations Implementing the Labor Code is not Allan Masa, and was allowed, to take over the
stopped reporting for work. The records are bereft considered an employee of the petitioner. vehicle while the latter was on his way home one
of evidence to show that petitioner ever gave Palad late afternoon. It is significant to note that the place
the opportunity to explain and defend herself. The private respondents assert that the where Allan lives is also the house of his father, the
Clearly, the two requisites for a valid dismissal are circumstances obtaining in the present case call for school president, Agustin Masa. Moreover, it is also
lacking in this case. the application of Article 2180 of the Civil Code the house where Funtecha was allowed free board
since Funtecha is no doubt an employee of the while he was a student of Filamer Christian
WHEREFORE, we AFFIRM the Decision dated 12 petitioner. The private respondent maintain that Institute.
November 2001 and the Resolution dated 5 April under Article 2180 an injured party shall have
2002 of the Court of Appeals in CA-G.R. SP No. recourse against the servant as well as the Allan Masa turned over the vehicle to Funtecha only
60379. petitioner for whom, at the time of the incident, the after driving down a road, negotiating a sharp
SO ORDERED. servant was performing an act in furtherance of the dangerous curb, and viewing that the road was
interest and for the benefit of the petitioner. clear. (TSN, April 4, 1983, pp. 78-79) According to
FILAMER CHRISTIAN INSTITUTE, Funtecha allegedly did not steal the school jeep nor Allan's testimony, a fast moving truck with glaring
PETITIONER, VS. HON. INTERMEDIATE use it for a joy ride without the knowledge of the lights nearly hit them so that they had to swerve to
APPELLATE COURT, HON. ENRIQUE P. school authorities. the right to avoid a collision. Upon swerving, they
SUPLICO, IN HIS CAPACITY AS JUDGE OF THE heard a sound as if something had bumped against
REGIONAL TRIAL COURT, BRANCH XIV, ROXAS After a re-examination of the laws relevant to the the vehicle, but they did not stop to check. Actually,
CITY AND POTENCIANO KAPUNAN, SR., facts found by the trial court and the appellate the Pinoy jeep swerved towards the pedestrian,
RESPONDENTS. court, the Court reconsiders its decision. We Potenciano Kapunan who was walking in his lane in
THIRD DIVISION reinstate the Court of Appeals' decision penned by the direction against vehicular traffic, and hit him.
Allan affirmed that Funtecha followed his advise to Fieldmen's Insurance Co., Inc. 124 SCRA 618 working conditions, rest periods, and wages, is
swerve to the right. (Ibid., p. 79) At the time of the [1983]). Therefore, the Court is constrained to concerned.
incident (6:30 P.M.) in Roxas City, the jeep had conclude that the act of Funtecha in taking over the In other words, Rule X is merely a guide to the
only one functioning headlight. steering wheel was one done for and in behalf of his enforcement of the substantive law on labor. The
employer for which act the petitioner-school cannot Court, thus, makes the distinction and so holds that
Allan testified that he was the driver and at the deny any responsibility by arguing that it was done Section 14, Rule X, Book III of the Rules is not the
same time a security guard of the petitioner-school. beyond the scope of his janitorial duties. The clause decisive law in a civil suit for damages instituted by
He further said that there was no specific time for "within the scope of their assigned tasks" for an injured person during a vehicular accident
him to be off-duty and that after driving the purposes of raising the presumption of liability of an against a working student of a school and against
students home at 5:00 in the afternoon, he still had employer, includes any act done by an employee, in the school itself.
to go back to school and then drive home using the furtherance of the interests of the employer or for
same vehicle. the account of the employer at the time of the The present case does not deal with a labor dispute
infliction of the injury or damage. (Manuel Casada, on conditions of employment between an alleged
Driving the vehicle to and from the house of the 190 Va 906, 59 SE 2d 47 [1950]) Even if somehow, employee and an alleged employer. It invokes a
school president where both Allan and Funtecha the employee driving the vehicle derived some claim brought by one for damages for injury caused
reside is an act in furtherance of the interest of the benefit from the act, the existence of a presumptive by the patently negligent acts of a person, against
petitioner-school. Allan's job demands that he drive liability of the employer is determined by answering both doer-employee and his employer. Hence, the
home the school jeep so he can use it to fetch the question of whether or not the servant was at reliance on the implementing rule on labor to
students in the morning of the next school day. the time of the accident performing any act in disregard the primary liability of an employer under
furtherance of his master's business. (Kohlman v. Article 2180 of the Civil Code is misplaced. An
It is indubitable under the circumstances that the Hyland, 210 NW 643, 50 ALR 1437 [1926]; implementing rule on labor cannot be used by an
school president had knowledge that the jeep was Jameson v. Gavett, 71 P 2d 937 [1937]) employer as a shield to avoid liability under the
routinely driven home for the said purpose. substantive provisions of the Civil Code.
Moreover, it is not improbable that the school Section 14, Rule X, Book III of the Rules
president also had knowledge of Funtecha's implementing the Labor Code, on which the There is evidence to show that there exists in the
possession of a student driver's license and his petitioner anchors its defense, was promulgated by present case an extra- contractual obligation arising
desire to undergo driving lessons during the time the Secretary of Labor and Employment only for the from the negligence or reckless imprudence of a
that he was not in his classrooms. purpose of administering and enforcing the person "whose acts or omissions are imputable, by
provisions of the Labor Code on conditions of a legal fiction, to other(s) who are in a position to
In learning how to drive while taking the vehicle employment. Particularly, Rule X of Book III exercise an absolute or limited control over (him)."
home in the direction of Allan's house, Funtecha provides guidelines on the manner by which the (Bahia v. Litonjua and Leynes, 30 Phil. 624 [1915])
definitely was not having a joy ride. Funtecha was powers of the Labor Secretary shall be exercised;
not driving for the purpose of his enjoyment or for a on what records should be kept, maintained and Funtecha is an employee of petitioner Filamer. He
"frolic of his own" but ultimately, for the service for preserved; on payroll; and on the exclusion of need not have an official appointment for a driver's
which the jeep was intended by the petitioner working scholars from, and inclusion of resident position in order that the petitioner may be held
school. (See L. Battistoni v. Thomas, Can SC 144, 1 physicians in the employment coverage as far as responsible for his grossly negligent act, it being
D.L.R. 577, 80 ALR 722 [1932]; See also compliance with the substantive labor provisions on sufficient that the act of driving at the time of the
Association of Baptists for World Evangelism, Inc. v. incident was for the benefit of the petitioner. Hence,
the fact that Funtecha was not the school driver or The petitioner, thus, has an obligation to pay an act not for an independent purpose of his own
was not acting within the scope of his janitorial damages for injury arising from the unskilled but in furtherance of the business of his employer.
duties does not relieve the petitioner of the burden manner by which Funtecha drove the vehicle. A position of responsibility on the part of the
of rebutting the presumption juris tantum that there (Cangco v. Manila Railroad Co., 38 Phil. 768, 772 petitioner has thus been satisfactorily
was negligence on its part either in the selection of [1918]) In the absence of evidence that the demonstrated.
a servant or employee, or in the supervision over petitioner had exercised the diligence of a good
him. The petitioner has failed to show proof of its father of a family in the supervision of its WHEREFORE, the motion for reconsideration of the
having exercised the required diligence of a good employees, the law imposes upon it the vicarious decision dated October 16, 1990 is hereby
father of a family over its employees Funtecha and liability for acts or omissions of its employees. GRANTED. The decision of the respondent appellate
Allan. (Umali v. Bacani, 69 SCRA 263 [1976); Poblete v. court affirming the trial court decision is
Fabros, 93 SCRA 200 [1979]; Kapalaran Bus Liner REINSTATED.
The Court reiterates that supervision includes the v. Coronado, 176 SCRA 792 [1989]; Franco v. SO ORDERED.
formulation of suitable rules and regulation for the Intermediate Appellate Court, 178 SCRA 331
guidance of its employees and the issuance of [1989]; Pantranco North Express, Inc. v. Baesa, MARITES BERNARDO, ELVIRA GO DIAMANTE,
proper instructions intended for the protection of 179, SCRA 384 [1989]) The liability of the employer REBECCA E. DAVID, DAVID P. PASCUAL,
the public and persons with whom the employer has is, under Article 2180, primary and solidary. RAQUEL ESTILLER, ALBERT HALLARE, EDMUND
relations through his employees. (Bahia v. Litonjud However, the employer shall have recourse against M. CORTEZ, JOSELITO O. AGDON GEORGE P.
and Leynes, supra, at p. 628; Phoenix Construction, the negligent employee for whatever damages are LIGUTAN JR., CELSO M. YAZAR, ALEX G.
Inc. v. Intermediate Appellate Court, 148 SCRA 353 paid to the heirs of the plaintiff. CORPUZ, RONALD M. DELFIN, ROWENA M.
[1987]) TABAQUERO, CORAZON C. DELOS REYES,
It is an admitted fact that the actual driver of the ROBERT G. NOORA, MILAGROS O. LEQUIGAN,
An employer is expected to impose upon its school jeep, Allan Masa, was not made a party ADRIANA F. TATLONGHARI, IKE
employees the necessary discipline called for in the defendant in the civil case for damages. This is CABANDUCOS, COCOY NOBELLO, DORENDA
performance of any act indispensable to the quite understandable considering that as far as the CANTIMBUHAN, ROBERT MARCELO, LILIBETH
business and beneficial to their employer. injured pedestrian, plaintiff Potenciano Kapunan, Q. MARMOLEJO, JOSE E. SALES, ISABEL
was concerned, it was Funtecha who was the one MAMAUAG, VIOLETA G. MONTES, ALBINO
In the present case, the petitioner has not shown driving the vehicle and presumably was one TECSON, MELODY V. GRUELA, BERNADETH D.
that it has set forth such rules and guidelines as authorized by the school to drive. The plaintiff and AGERO, CYNTHIA DE VERA, LANI R. CORTEZ,
would prohibit any one of its employees from taking his heirs should not now be left to suffer without MA. ISABEL B. CONCEPCION, DINDO VALERIO,
control over its vehicles if one is not the official simultaneous recourse against the petitioner for the ZENAIDA MATA, ARIEL DEL PILAR, MARGARET
driver or prohibiting the driver and son of the consequent injury caused by a janitor doing a CECILIA CANOZA, THELMA SEBASTIAN, MA.
Filamer president from authorizing another driving chore for the petitioner even for a short JEANETTE CERVANTES, JEANNIE RAMIL,
employee to drive the school vehicle. Furthermore, while. For the purpose of recovering damages under ROZAIDA PASCUAL, PINKY BALOLOA,
the petitioner has failed to prove that it had the prevailing circumstances, it is enough that the ELIZABETH VENTURA, GRACE S. PARDO &
imposed sanctions or warned its employees against plaintiff and the private respondent heirs were able RICO TIMOSA, PETITIONERS VS. NATIONAL
the use of its vehicles by persons other than the to establish the existence of employer-employee LABOR RELATIONS COMMISSION & FAR EAST
driver. relationship between Funtecha and petitioner BANK AND TRUST COMPANY, RESPONDENTS.
Filamer and the fact that Funtecha was engaged in THIRD DIVISION
G.R. No. 122917, July 12, 1999 Trust Co. as Money Sorters and Counters through a WHEREAS, the EMPLOYEE is one of those
PANGANIBAN, J.: uniformly worded agreement called `Employment handicapped workers who [were] recommended for
Contract for Handicapped Workers'. (pp. 68 & 69, possible employment with the BANK;
The Magna Carta for Disabled Persons mandates Records) The full text of said agreement is quoted NOW, THEREFORE, for and in consideration of the
that qualified disabled persons be granted the same below: foregoing premises and in compliance with Article
terms and conditions of employment as qualified 80 of the Labor Code of the Philippines as amended,
able-bodied employees. Once they have attained `EMPLOYMENT CONTRACT FOR HANDICAPPED the BANK and the EMPLOYEE have entered into this
the status of regular workers, they should be WORKERS Employment Contract as follows:
accorded all the benefits granted by law, This Contract, entered into by and between: 1. The BANK agrees to employ and train the
notwithstanding written or verbal contracts to the FAR EAST BANK AND TRUST COMPANY, a universal EMPLOYEE, and the EMPLOYEE agrees to
contrary. This treatment is rooted not merely on banking corporation duly organized and existing diligently and faithfully work with the BANK,
charity or accommodation, but on justice for all. under and by virtue of the laws of the Philippines, as Money Sorter and Counter.
with business address at FEBTC Building, Muralla,
The Case Intramuros, Manila, represented herein by its 2. The EMPLOYEE shall perform among others,
Assistant Vice President, MR. FLORENDO G. the following duties and responsibilities:
Challenged in the Petition for Certiorari before us is MARANAN, (hereinafter referred to as the `BANK'); i. Sort out bills according to color;
the June 20, 1995 Decision of the National Labor - and - ii. Count each denomination per
Relations Commission (NLRC), which affirmed the ________________, ________________ years old, hundred, either manually or with the
August, 22 1994 ruling of Labor Arbiter Cornelio L. of legal age, _____________, and residing at aid of a counting machine;
Linsangan. The labor arbiter's Decision disposed as __________________ (hereinafter referred to as iii. Wrap and label bills per hundred;
follows: the (`EMPLOYEE'). iv. Put the wrapped bills into bundles;
WITNESSETH: That WHEREAS, the BANK, cognizant and
"WHEREFORE, judgment is hereby rendered of its social responsibility, realizes that there is a v. Submit bundled bills to the bank
dismissing the above- mentioned complaint for lack need to provide disabled and handicapped persons teller for verification.
of merit." gainful employment and opportunities to realize
their potentials, uplift their socio- economic well- 3. The one (1) month, after which the BANK
Also assailed is the August 4, 1995 Resolution of being and welfare and make them productive, self- shall determine whether or not he/she
the NLRC, which denied the Motion for reliant and useful citizens to enable them to fully should be allowed to finish the remaining
Reconsideration. integrate in the mainstream of society; term of this Contract.
WHEREAS, there are certain positions in the BANK
The Facts which may be filled-up by disabled and handicapped 4. The EMPLOYEE shall be entitled to an initial
persons, particularly deaf-mutes, and the BANK compensation of P118.00 per day, subject to
The facts were summarized by the NLRC in this ha[s] been approached by some civic-minded adjustment in the sole judgment of the
wise: citizens and authorized government agencies BANK, payable every 15th and end of the
[regarding] the possibility of hiring handicapped month.
"Complainants numbering 43 (p. 176, Records) are workers for these positions;
5. The regular work schedule of the EMPLOYEE
deaf-mutes who were hired on various periods from
shall be five (5) days per week, from
1988 to 1993 by respondent Far East Bank and
 Mondays thru Fridays, at eight (8) hours a regulations that the Department of Labor employees were hired temporarily under [a] special
day. The EMPLOYEE may be required to and Employment may issue in connection employment arrangement which was a result of
perform overtime work as circumstance may with the employment of disabled and overtures made by some civic and political
warrant, for which overtime work he/she handicapped workers. More specifically, the personalities to the respondent Bank; that
[shall] be paid an additional compensation of EMPLOYEE hereby acknowledges that the complainant[s] were hired due to `pakiusap' which
125% of his daily rate if performed during provisions of Book Six of the Labor Code of must be considered in the light of the context of the
ordinary days and 130% if performed during the Philippines as amended, particularly on respondent Bank's corporate philosophy as well as
Saturday or [a] rest day. regulation of employment and separation its career and working environment which is to
pay are not applicable to him/her. maintain and strengthen a corps of professionals
6. The EMPLOYEE shall likewise be entitled to 9. The Employment Contract shall be for a trained and qualified officers and regular employees
the following benefits: period of six (6) months or from ____ to who are baccalaureate degree holders from
____ unless earlier terminated by the BANK excellent schools which is an unbending policy in
i. Proportionate 13th month pay based on for any just or reasonable cause. Any the hiring of regular employees; that in addition to
his basic daily wage. continuation or extension of this Contract this, training continues so that the regular
ii. Five (5) days incentive leave. shall be in writing and therefore this employee grows in the corporate ladder; that the
iii. SSS premium payment. Contract will automatically expire at the end idea of hiring handicapped workers was acceptable
of its terms unless renewed in writing by the to them only on a special arrangement basis; that it
7. The EMPLOYEE binds himself/herself to abide BANK. adopted the special program to help tide over a
[by] and comply with all the BANK Rules and group of handicapped workers such as deaf-mutes
Regulations and Policies, and to conduct IN WITNESS WHEREOF, the parties, have hereunto like the complainants who could do manual work for
himself/herself in a manner expected of all affixed their signature[s] this ____ day of the respondent Bank; that the task of counting and
employees of the BANK. _________________, ____________ at sorting of bills which was being performed by tellers
Intramuros, Manila, Philippines.' could be assigned to deaf-mutes; that the counting
8. The EMPLOYEE acknowledges the fact that and sorting of money are tellering works which
he/she had been employed under a special In 1988, two (2) deaf-mutes were hired under this were always logically and naturally part and parcel
employment program of the BANK, for which Agreement; in 1989 another two (2); in 1990, of the tellers' normal functions; that from the
reason the standard hiring requirements of nineteen (19); in 1991 six (6); in 1992, six (6) and beginning there have been no separate items in the
the BANK were not applied in his/her case. in 1993, twenty-one (21). Their employment[s] respondent Bank plantilla for sorters or counters;
Consequently, the EMPLOYEE acknowledges were renewed every six months such that by the that the tellers themselves already did the sorting
and accepts the fact that the terms and time this case arose, there were fifty-six (56) deaf- and counting chore as a regular feature and integral
conditions of the employment generally mutes who were employed by respondent under the part of their duties (p. 97, Records); that through
observed by the BANK with respect to the said employment agreement. The last one was the `pakiusap' of Arturo Borjal, the tellers were
BANK's regular employee are not applicable Thelma Malindoy who was employed in 1992 and relieved of this task of counting and sorting bills in
to the EMPLOYEE, and that therefore, the whose contract expired on July 1993. favor of deaf-mutes without creating new positions
terms and conditions of the EMPLOYEE's "Disclaiming that complainants were regular as there is no position either in the respondent or in
employment with the BANK shall be employees, respondent Far East Bank and Trust any other bank in the Philippines which deals with
governed solely and exclusively by this Company maintained that complainants who are a purely counting and sorting of bills in banking
Contract and by the applicable rules and special class of workers - the hearing impaired operations."
 As earlier noted, the labor arbiter and, on appeal,
Petitioners specified when each of them was hired the NLRC ruled against herein petitioners. Hence,
and dismissed, viz: this recourse to this Court.

The Ruling of the NLRC

In affirming the ruling of the labor arbiter that

herein petitioners could not be deemed regular
employees under Article 280 of the Labor Code, as
amended, Respondent Commission ratiocinated as
follows:
"We agree that Art. 280 is not controlling herein.
We give due credence to the conclusion that
complainants were hired as an accommodation to
[the] recommendation of civic oriented personalities
whose employment[s] were covered by xxx
Employment Contract[s] with special provisions on
duration of contract as specified under Art. 80.
Hence, as correctly held by the Labor Arbiter a quo,
the terms of the contract shall be the law between
the parties."

The NLRC also declared that the Magna Carta for

Disabled Persons was not applicable, "considering
the prevailing circumstances/milieu of the case."

Issues

In their Memorandum, petitioners cite the following

grounds in support of their cause:

"I. The Honorable Commission committed grave

abuse of discretion in holding that the petitioners -
money sorters and counters working in a bank -
were not regular employees.

"II. The Honorable Commission committed grave

abuse of discretion in holding that the employment
contracts signed and renewed by the petitioners - law to the established facts, as above- quoted from individuals and to make them more productive
which provide for a period of six (6) months - were the assailed Decision. members of society. However, we cannot allow it to
valid. Main Issue: elude the legal consequences of that effort, simply
Are Petitioners Regular Employees? because it now deems their employment irrelevant.
"III. The Honorable Commission committed grave Petitioners maintain that they should be considered The facts, viewed in light of the Labor Code and the
abuse of discretion in not applying the provisions of regular employees, because their task as money Magna Carta for Disabled Persons, indubitably show
the Magna Carta for the Disabled (Republic Act No. sorters and counters was necessary and desirable that the petitioners, except sixteen of them, should
7277), on proscription against discrimination to the business of respondent bank. They further be deemed regular employees. As such, they have
against disabled persons." allege that their contracts served merely to acquired legal rights that this Court is duty-bound
preclude the application of Article 280 and to bar to protect and uphold, not as a matter of
In the main, the Court will resolve whether them from becoming regular employees. compassion but as a consequence of law and
petitioners have become regular employees. justice.
Private respondent, on the other hand, submits that
This Court's Ruling petitioners were hired only as "special workers and The uniform employment contracts of the
should not in any way be considered as part of the petitioners stipulated that they shall be trained for a
The petition is meritorious. However, only the regular complement of the Bank." Rather, they period of one month, after which the employer shall
employees, who worked for more than six months were "special" workers under Article 80 of the Labor determine whether or not they should be allowed to
and whose contracts were renewed are deemed Code. Private respondent contends that it never finish the 6-month term of the contract.
regular. Hence, their dismissal from employment solicited the services of petitioners, whose Furthermore, the employer may terminate the
was illegal. employment was merely an "accommodation" in contract at any time for a just and reasonable
response to the requests of government officials cause. Unless renewed in writing by the employer,
Preliminary Matter: and civic-minded citizens. They were told from the the contract shall automatically expire at the end of
Propriety of Certiorari start, "with the assistance of government the term.
Respondent Far East Bank and Trust Company representatives," that they could not become According to private respondent, the employment
argues that a review of the findings of facts of the regular employees because there were no plantilla contracts were prepared in accordance with Article
NLRC is not allowed in a petition for certiorari. positions for "money sorters," whose task used to 80 of the Labor Code, which provides:
Specifically, it maintains that the Court cannot pass be performed by tellers. Their contracts were
upon the findings of public respondents that renewed several times, not because of need "but "ART. 80. Employment agreement. - Any employer
petitioners were not regular employees. merely for humanitarian reasons." Respondent who employs handicapped workers shall enter into
submits that "as of the present, the `special an employment agreement with them, which
True, the Court, as a rule, does not review the position' that was created for the petitioners no agreement shall include:
factual findings of public respondents in a certiorari longer exist[s] in private respondent [bank], after (a) The names and addresses of the handicapped
proceeding. In resolving whether the petitioners the latter had decided not to renew anymore their workers to be employed;
have become regular employees, we shall not special employment contracts." (b) The rate to be paid the handicapped workers
change the facts found by the public respondent. which shall be not
Our task is merely to determine whether the NLRC At the outset, let it be known that this Court less than seventy five (75%) per cent of the
committed grave abuse of discretion in applying the appreciates the nobility of private respondent's applicable legal minimum wage;
effort to provide employment to physically impaired
(c) The duration of employment period; and The fact that the employees were qualified disabled usually necessary or desirable in the usual business
(d) The work to be performed by handicapped persons necessarily removes the employment or trade of the employer. The connection can be
workers. The employment agreement shall be contracts from the ambit of Article 80. Since the determined by considering the nature of the work
subject to inspection by the Secretary of Labor or Magna Carta accords them the rights of qualified performed and its relation to the scheme of the
his duly authorized representatives." able-bodied persons, they are thus covered by particular business or trade in its entirety. Also if
The stipulations in the employment contracts Article 280 of the Labor Code, which provides: the employee has been performing the job for at
indubitably conform with the aforecited provision. "ART. 280. Regular and Casual Employment. -- The least one year, even if the performance is not
Succeeding events and the enactment of RA No. provisions of written agreement to the contrary continuous and merely intermittent, the law deems
7277 (the Magna Carta for Disabled Persons), notwithstanding and regardless of the oral repeated and continuing need for its performance
however, justify the application of Article 280 of the agreement of the parties, an employment shall be as sufficient evidence of the necessity if not
Labor Code. deemed to be regular where the employee has indispensability of that activity to the business.
been engaged to perform activities which are Hence, the employment is considered regular, but
Respondent bank entered into the aforesaid usually necessary or desirable in the usual business only with respect to such activity, and while such
contract with a total of 56 handicapped workers and or trade of the employer, except where the activity exists."
renewed the contracts of 37 of them. In fact, two of employment has been fixed for a specific project or
them worked from 1988 to 1993. Verily, the undertaking the completion or termination of which Without a doubt, the task of counting and sorting
renewal of the contracts of the handicapped has been determined at the time of the bills is necessary and desirable to the business of
workers and the hiring of others lead to the engagement of the employee or where the work or respondent bank. With the exception of sixteen of
conclusion that their tasks were beneficial and services to be performed is seasonal in nature and them, petitioners performed these tasks for more
necessary to the bank. More important, these facts the employment is for the duration of the season. than six months. Thus, the following twenty-seven
show that they were qualified to perform the petitioners should be deemed regular employees:
responsibilities of their positions. In other words, An employment shall be deemed to be casual if it is Marites Bernardo, Elvira Go Diamante, Rebecca E.
their disability did not render them unqualified or not covered by the preceding paragraph: Provided, David, David P. Pascual, Raquel Estiller, Albert
unfit for the tasks assigned to them. That, any employee who has rendered at least one Hallare, Edmund M. Cortez, Joselito O. Agdon,
In this light, the Magna Carta for Disabled Persons year of service, whether such service is continuous George P. Ligutan Jr., Lilibeth Q. Marmolejo, Jose E.
mandates that a qualified disabled employee should or broken, shall be considered as regular employee Sales, Isabel Mamauag, Violeta G. Montes, Albino
be given the same terms and conditions of with respect to the activity in which he is employed Tecson, Melody V. Gruela, Bernadeth D. Agero,
employment as a qualified able-bodied person. and his employment shall continue while such Cynthia de Vera, Lani R. Cortez, Ma. Isabel B.
Section 5 of the Magna Carta provides: activity exists." Concepcion, Margaret Cecilia Canoza, Thelma
"Section 5. Equal Opportunity for Employment.--No Sebastian, Ma. Jeanette Cervantes, Jeannie Ramil,
disabled person shall be denied access to The test of whether an employee is regular was laid Rozaida Pascual, Pinky Baloloa, Elizabeth Ventura
opportunities for suitable employment. A qualified down in De Leon v. NLRC, in which this Court held: and Grace S. Pardo.
disabled employee shall be subject to the same
terms and conditions of employment and the same "The primary standard, therefore, of determining As held by the Court, "Articles 280 and 281 of the
compensation, privileges, benefits, fringe benefits, regular employment is the reasonable connection Labor Code put an end to the pernicious practice of
incentives or allowances as a qualified able bodied between the particular activity performed by the making permanent casuals of our lowly employees
person." employee in relation to the usual trade or business by the simple expedient of extending to them
of the employer. The test is whether the former is probationary appointments, ad infinitum." The
contract signed by petitioners is akin to a We are not persuaded. physical limitations as it is very risky for them to
probationary employment, during which the bank travel at night."
determined the employees' fitness for the job. The term limit in the contract was premised on the
When the bank renewed the contract after the lapse fact that the petitioners were disabled, and that the We find no basis for this argument. Travelling at
of the six-month probationary period, the bank had to determine their fitness for the position. night involves risks to handicapped and able-bodied
employees thereby became regular employees. No Indeed, its validity is based on Article 80 of the persons alike. This excuse cannot justify the
employer is allowed to determine indefinitely the Labor Code. But as noted earlier, petitioners proved termination of their employment.
fitness of its employees. themselves to be qualified disabled persons who, Other Grounds Cited by Respondent
under the Magna Carta for Disabled Persons, are
As regular employees, the twenty-seven petitioners entitled to terms and conditions of employment Respondent argues that petitioners were merely
are entitled to security of tenure; that is, their enjoyed by qualified able-bodied individuals; hence, "accommodated" employees. This fact does not
services may be terminated only for a just or Article 80 does not apply because petitioners are change the nature of their employment. As earlier
authorized cause. Because respondent failed to qualified for their positions. The validation of the noted, an employee is regular because of the
show such cause, these twenty-seven petitioners limit imposed on their contracts, imposed by reason nature of work and the length of service, not
are deemed illegally dismissed and therefore of their disability, was a glaring instance of the very because of the mode or even the reason for hiring
entitled to back wages and reinstatement without mischief sought to be addressed by the new law. them.
loss of seniority rights and other privileges.
Considering the allegation of respondent that the Moreover, it must be emphasized that a contract of Equally unavailing are private respondent's
job of money sorting is no longer available because employment is impressed with public interest. arguments that it did not go out of its way to recruit
it has been assigned back to the tellers to whom it Provisions of applicable statutes are deemed written petitioners, and that its plantilla did not contain
originally belonged, petitioners are hereby awarded into the contract, and the "parties are not at liberty their positions.
separation pay in lieu of reinstatement. to insulate themselves and their relationships from
the impact of labor laws and regulations by simply In L. T. Datu v. NLRC, the Court held that "the
Because the other sixteen worked only for six contracting with each other." Clearly, the determination of whether employment is casual or
months, they are not deemed regular employees agreement of the parties regarding the period of regular does not depend on the will or word of the
and hence not entitled to the same benefits. employment cannot prevail over the provisions of employer, and the procedure of hiring x x x but on
the Magna Carta for Disabled Persons, which the nature of the activities performed by the
Applicability of the Brent Ruling mandate that petitioners must be treated as employee, and to some extent, the length of
qualified able-bodied employees. performance and its continued existence."
Respondent bank, citing Brent School v. Zamora in
which the Court upheld the validity of an Respondent's reason for terminating the Private respondent argues that the petitioners were
employment contract with a fixed term, argues that employment of petitioners is instructive. Because informed from the start that they could not become
the parties entered into the contract on equal the Bangko Sentral ng Pilipinas (BSP) required that regular employees. In fact, the bank adds, they
footing. It adds that the petitioners had in fact an cash in the bank be turned over to the BSP during agreed with the stipulation in the contract regarding
advantage, because they were backed by then business hours from 8:00 a.m. to 5:00 p.m., this point. Still, we are not persuaded. The well-
DSWD Secretary Mita Pardo de Tavera and respondent resorted to nighttime sorting and settled rule is that the character of employment is
Representative Arturo Borjal. counting of money. Thus, it reasons that this task determined not by stipulations in the contract, but
"could not be done by deaf mutes because of their by the nature of the work performed. Otherwise, no
employee can become regular by the simple In rendering this Decision, the Court emphasizes and Grace S. Pardo. The NLRC is hereby directed to
expedient of incorporating this condition in the not only the constitutional bias in favor of the compute the exact amount due each of said
contract of employment. working class, but also the concern of the State for employees, pursuant to existing laws and
the plight of the disabled. The noble objectives of regulations, within fifteen days from the finality of
In this light, we iterate our ruling in Romares v. Magna Carta for Disabled Persons are not based this Decision. No costs.
NLRC: merely on charity or accommodation, but on justice SO ORDERED.
and the equal treatment of qualified persons,
"Article 280 was emplaced in our statute books to disabled or not. In the present case, the handicap
prevent the circumvention of the employee's right of petitioners (deaf-mutes) is not a hindrance to
to be secure in his tenure by indiscriminately and their work. The eloquent proof of this statement is ARMANDO G. YRASUEGUI, PETITIONER, VS.
completely ruling out all written and oral the repeated renewal of their employment PHILIPPINE AIRLINES, INC., RESPONDENT.
agreements inconsistent with the concept of regular contracts. Why then should they be dismissed, THIRD DIVISION
employment defined therein. Where an employee simply because they are physically impaired? The G.R. No. 168081, October 17, 2008
has been engaged to perform activities which are Court believes, that, after showing their fitness for REYES, R.T., J.:
usually necessary or desirable in the usual business the work assigned to them, they should be treated
of the employer, such employee is deemed a and granted the same rights like any other regular THIS case portrays the peculiar story of an
regular employee and is entitled to security of employees. international flight steward who was dismissed
tenure notwithstanding the contrary provisions of because of his failure to adhere to the weight
his contract of employment. In this light, we note the Office of the Solicitor standards of the airline company. He is now before
General's prayer joining the petitioners' cause. this Court via a petition for review on certiorari
xxxxxxxxx claiming that he was illegally dismissed. To buttress
WHEREFORE, premises considered, the Petition is his stance, he argues that (1) his dismissal does not
At this juncture, the leading case of Brent School, hereby GRANTED. The June 20, 1995 Decision and fall under 282(e) of the Labor Code; (2) continuing
Inc. v. Zamora proves instructive. As reaffirmed in the August 4, 1995 Resolution of the NLRC are adherence to the weight standards of the company
subsequent cases, this Court has upheld the legality REVERSED and SET ASIDE. Respondent Far East is not a bona fide occupational qualification; and (3)
of fixed-term employment. It ruled that the decisive Bank and Trust Company is hereby ORDERED to he was discriminated against because other
determinant in `term employment' should not be pay back wages and separation pay to each of the overweight employees were promoted instead of
the activities that the employee is called upon to following twenty-seven (27) petitioners, namely, being disciplined.
perform but the day certain agreed upon the Marites Bernardo, Elvira Go Diamante, Rebecca E.
parties for the commencement and termination of David, David P. Pascual, Raquel Estiller, Albert After a meticulous consideration of all arguments
their employment relationship. But this Court went Hallare, Edmund M. Cortez, Joselito O. Agdon, pro and con, We uphold the legality of dismissal.
on to say that where from the circumstances it is George P. Ligutan Jr., Lilibeth Q. Marmolejo, Jose E. Separation pay, however, should be awarded in
apparent that the periods have been imposed to Sales, Isabel Mamauag, Violeta G. Montes, Albino favor of the employee as an act of social justice or
preclude acquisition of tenurial security by the Tecson, Melody V. Gruela, Bernadeth D. Agero, based on equity. This is so because his dismissal is
employee, they should be struck down or Cynthia de Vera, Lani R. Cortez, Ma. Isabel B. not for serious misconduct. Neither is it reflective of
disregarded as contrary to public policy and Concepcion, Margaret Cecilia Canoza, Thelma his moral character.
morals." Sebastian, Ma. Jeanette Cervantes, Jeannie Ramil,
Rozaida Pascual, Pinky Baloloa, Elizabeth Ventura The Facts
 which is 49 pounds beyond the limit. Consequently, reminded that his grounding would continue
Petitioner Armando G. Yrasuegui was a former his off-duty status was retained. pending satisfactory compliance with the weight
international flight steward of Philippine Airlines, standards.
Inc. (PAL). He stands five feet and eight inches On October 17, 1989, PAL Line Administrator Gloria
(5'8") with a large body frame. The proper weight Dizon personally visited petitioner at his residence Again, petitioner failed to report for weight checks,
for a man of his height and body structure is from to check on the progress of his effort to lose weight. although he was seen submitting his passport for
147 to 166 pounds, the ideal weight being 166 Petitioner weighed 217 pounds, gaining 2 pounds processing at the PAL Staff Service Division.
pounds, as mandated by the Cabin and Crew from his previous weight.
Administration Manual of PAL. After the visit, petitioner made a commitment to On April 17, 1990, petitioner was formally warned
The weight problem of petitioner dates back to reduce weight in a letter addressed to Cabin Crew that a repeated refusal to report for weight check
1984. Back then, PAL advised him to go on an Group Manager Augusto Barrios. The letter, in full, would be dealt with accordingly. He was given
extended vacation leave from December 29, 1984 reads: another set of weight check dates. Again, petitioner
to March 4, 1985 to address his weight concerns. ignored the directive and did not report for weight
Apparently, petitioner failed to meet the company's “Dear Sir: checks. On June 26, 1990, petitioner was required
weight standards, prompting another leave without I would like to guaranty my commitment towards a to explain his refusal to undergo weight checks.
pay from March 5, 1985 to November 1985. weight loss from 217 pounds to 200 pounds from
today until 31 Dec. 1989. From thereon, I promise When petitioner tipped the scale on July 30, 1990,
After meeting the required weight, petitioner was to continue reducing at a reasonable percentage he weighed at 212 pounds.
allowed to return to work. But petitioner's weight until such time that my ideal weight is achieved.
problem recurred. He again went on leave without Likewise, I promise to personally report to your Clearly, he was still way over his ideal weight of
pay from October 17, 1988 to February 1989. office at the designated time schedule you will set 166 pounds.
for my weight check.
On April 26, 1989, petitioner weighed 209 pounds, From then on, nothing was heard from petitioner
43 pounds over his ideal weight. In line with Respectfully Yours, until he followed up his case requesting for leniency
company policy, he was removed from flight duty F/S Armando Yrasuegui” on the latter part of 1992. He weighed at 219
effective May 6, 1989 to July 3, 1989. He was pounds on August 20, 1992 and 205 pounds on
formally requested to trim down to his ideal weight Despite the lapse of a ninety-day period given him November 5, 1992.
and report for weight checks on several dates. He to reach his ideal weight, petitioner remained
was also told that he may avail of the services of overweight. On January 3, 1990, he was informed On November 13, 1992, PAL finally served
the company physician should he wish to do so. of the PAL decision for him to remain grounded until petitioner a Notice of Administrative Charge for
such time that he satisfactorily complies with the violation of company standards on weight
He was advised that his case will be evaluated on weight standards. Again, he was directed to report requirements. He was given ten (10) days from
July 3, 1989. every two weeks for weight checks. receipt of the charge within which to file his answer
and submit controverting evidence.
On February 25, 1989, petitioner underwent weight Petitioner failed to report for weight checks. Despite
check. It was discovered that he gained, instead of that, he was given one more month to comply with On December 7, 1992, petitioner submitted his
losing, weight. He was overweight at 215 pounds, the weight requirement. As usual, he was asked to Answer. Notably, he did not deny being overweight.
report for weight check on different dates. He was What he claimed, instead, is that his violation, if
any, had already been condoned by PAL since "no for purposes of appeal is hereby set from June 15, of said decision concerning complainant's
action has been taken by the company" regarding 1993 up to August 15, 1998 at P651,000.00; entitlement to back-wages shall be deemed to refer
his case "since 1988." He also claimed that PAL b. Attorney's fees of five percent (5%) of the total to complainant's entitlement to his full back-wages,
discriminated against him because "the company award. SO ORDERED.” inclusive of allowances and to his other benefits or
has not been fair in treating the cabin crew their monetary equivalent instead of simply
members who are similarly situated." The Labor Arbiter held that the weight standards of backwages, from date of dismissal until his actual
PAL are reasonable in view of the nature of the job reinstatement or finality hereof. Respondent is
On December 8, 1992, a clarificatory hearing was of petitioner. However, the weight standards need enjoined to manifests (sic) its choice of the form of
held where petitioner manifested that he was not be complied with under pain of dismissal since the reinstatement of complainant, whether physical
undergoing a weight reduction program to lose at his weight did not hamper the performance of his or through payroll within ten (10) days from notice
least two (2) pounds per week so as to attain his duties. Assuming that it did, petitioner could be failing which, the same shall be deemed as
ideal weight. transferred to other positions where his weight complainant's reinstatement through payroll and
would not be a negative factor. Notably, other execution in case of non-payment shall accordingly
On June 15, 1993, petitioner was formally informed overweight employees, i.e., Mr. Palacios, Mr. Cui, be issued by the Arbiter. Both appeals of
by PAL that due to his inability to attain his ideal and Mr. Barrios, were promoted instead of being respondent thus, are DISMISSED for utter lack of
weight, "and considering the utmost leniency" disciplined. merit.”
extended to him "which spanned a period covering
a total of almost five (5) years," his services were Both parties appealed to the National Labor According to the NLRC, "obesity, or the tendency to
considered terminated "effective immediately." Relations Commission (NLRC). gain weight uncontrollably regardless of the amount
of food intake, is a disease in itself." As a
His motion for reconsideration having been denied, On October 8, 1999, the Labor Arbiter issued a writ consequence, there can be no intentional defiance
petitioner filed a complaint for illegal dismissal of execution directing the reinstatement of or serious misconduct by petitioner to the lawful
against PAL. petitioner without loss of seniority rights and other order of PAL for him to lose weight.
benefits.
Labor Arbiter, NLRC and CA Dispositions Like the Labor Arbiter, the NLRC found the weight
On February 1, 2000, the Labor Arbiter denied the standards of PAL to be reasonable. However, it
On November 18, 1998, Labor Arbiter Valentin C. Motion to Quash Writ of Execution of PAL. found as unnecessary the Labor Arbiter holding that
Reyes ruled that petitioner was illegally dismissed. petitioner was not remiss in the performance of his
The dispositive part of the Arbiter ruling runs as On March 6, 2000, PAL appealed the denial of its duties as flight steward despite being overweight.
follows: motion to quash to the NLRC. According to the NLRC, the Labor Arbiter should
have limited himself to the issue of whether the
“WHEREFORE, in view of the foregoing, judgment is On June 23, 2000, the NLRC rendered judgment in failure of petitioner to attain his ideal weight
hereby rendered, declaring the complainant's the following tenor: constituted willful defiance of the weight standards
dismissal illegal, and ordering the respondent to of PAL.
reinstate him to his former position or substantially “WHEREFORE, premises considered[,] the PAL moved for reconsideration to no avail. Thus,
equivalent one, and to pay him: Decision of the Arbiter dated 18 November 1998 as PAL elevated the matter to the Court of Appeals
a. Backwages of Php10,500.00 per month from his modified by our findings herein, is hereby (CA) via a petition for certiorari under Rule 65 of
dismissal on June 15, 1993 until reinstated, which AFFIRMED and that part of the dispositive portion the 1997 Rules of Civil Procedure.
 Our Ruling
By Decision dated August 31, 2004, the CA On May 10, 2005, the CA denied petitioner's motion I. The obesity of petitioner is a ground for
reversed the NLRC: for reconsideration. Elaborating on its earlier ruling, dismissal under Article 282(e) of the Labor
the CA held that the weight standards of PAL are a Code.
“WHEREFORE, premises considered, we hereby bona fide occupational qualification which, in case
GRANT the petition. The assailed NLRC decision is of violation, "justifies an employee's separation A reading of the weight standards of PAL would lead
declared NULL and VOID and is hereby SET ASIDE. from the service." to no other conclusion than that they constitute a
The private respondent's complaint is hereby continuing qualification of an employee in order to
DISMISSED. No costs. SO ORDERED.” Issues keep the job. Tersely put, an employee may be
dismissed the moment he is unable to comply with
The CA opined that there was grave abuse of In this Rule 45 petition for review, the following his ideal weight as prescribed by the weight
discretion on the part of the NLRC because it issues are posed for resolution: standards. The dismissal of the employee would
"looked at wrong and irrelevant considerations" in I. thus fall under Article 282(e) of the Labor Code. As
evaluating the evidence of the parties. Contrary to WHETHER OR NOT THE COURT OF APPEALS explained by the CA:
the NLRC ruling, the weight standards of PAL are GRAVELY ERRED IN HOLDING THAT PETITIONER'S
meant to be a continuing qualification for an OBESITY CAN BE A GROUND FOR DISMISSAL “x x x [T]he standards violated in this case were
employee's position. The failure to adhere to the UNDER PARAGRAPH (e) OF ARTICLE 282 OF THE not mere "orders" of the employer; they were the
weight standards is an analogous cause for the LABOR CODE OF THE PHILIPPINES; "prescribed weights" that a cabin crew must
dismissal of an employee under Article 282(e) of II. maintain in order to qualify for and keep his or
the Labor Code in relation to Article 282(a). It is not WHETHER OR NOT THE COURT OF APPEALS her position in the company. In other words,
willful disobedience as the NLRC seemed to GRAVELY ERRED IN HOLDING THAT PETITIONER'S they were standards that establish continuing
suggest. Said the CA, "the element of willfulness DISMISSAL FOR OBESITY CAN BE PREDICATED ON qualifications for an employee's position. In this
that the NLRC decision cites is an irrelevant THE "BONA FIDE OCCUPATIONAL QUALIFICATION sense, the failure to maintain these standards does
consideration in arriving at a conclusion on whether (BFOQ) DEFENSE"; not fall under Article 282(a) whose express terms
the dismissal is legally proper." In other words, "the III. require the element of willfulness in order to be a
relevant question to ask is not one of willfulness but WHETHER OR NOT THE COURT OF APPEALS ground for dismissal. The failure to meet the
one of reasonableness of the standard and whether GRAVELY ERRED IN HOLDING THAT PETITIONER employer's qualifying standards is in fact a
or not the employee qualifies or continues to qualify WAS NOT UNDULY DISCRIMINATED AGAINST ground that does not squarely fall under grounds
under this standard." WHEN HE WAS DISMISSED WHILE OTHER (a) to (d) and is therefore one that falls under
OVERWEIGHT CABIN ATTENDANTS WERE EITHER Article 282(e) - the "other causes analogous to the
Just like the Labor Arbiter and the NLRC, the CA GIVEN FLYING DUTIES OR PROMOTED; foregoing."
held that the weight standards of PAL are IV.
reasonable. Thus, petitioner was legally dismissed WHETHER OR NOT THE COURT OF APPEALS “By its nature, these "qualifying standards" are
because he repeatedly failed to meet the prescribed GRAVELY ERRED WHEN IT BRUSHED ASIDE norms that apply prior to and after an employee
weight standards. It is obvious that the issue of PETITIONER'S CLAIMS FOR REINSTATEMENT [AND] is hired. They apply prior to employment because
discrimination was only invoked by petitioner for WAGES ALLEGEDLY FOR these are the standards a job applicant must
purposes of escaping the result of his dismissal for BEING MOOT AND ACADEMIC. initially meet in order to be hired. They apply after
being overweight. hiring because an employee must continue to meet
these standards while on the job in order to keep Republic Act (RA) No. 1787. Second, the issue of
his job. Under this perspective, a violation is not flight safety is absent in Nadura, thus, the rationale Petitioner cites Bonnie Cook v. State of Rhode
one of the faults for which an employee can be there cannot apply here. Third, in Nadura, the Island, Department of Mental Health, Retardation
dismissed pursuant to pars. (a) to (d) of Article employee who was a miner, was laid off from work and Hospitals, decided by the United States Court
282; the employee can be dismissed simply because of illness, i.e., asthma. Here, petitioner of Appeals (First Circuit). In that case, Cook worked
because he no longer "qualifies" for his job was dismissed for his failure to meet the weight from 1978 to 1980 and from 1981 to 1986 as an
irrespective of whether or not the failure to qualify standards of PAL. He was not dismissed due to institutional attendant for the mentally retarded at
was willful or intentional. x x x” illness. Fourth, the issue in Nadura is whether or the Ladd Center that was being operated by
not the dismissed employee is entitled to separation respondent. She twice resigned voluntarily with an
Petitioner, though, advances a very interesting pay and damages. Here, the issue centers on the unblemished record. Even respondent admitted that
argument. He claims that obesity is a "physical propriety of the dismissal of petitioner for his failure her performance met the Center's legitimate
abnormality and/or illness." Relying on Nadura v. to meet the weight standards of PAL. Fifth, in expectations. In 1988, Cook re-applied for a similar
Benguet Consolidated, Inc., he says his dismissal is Nadura, the employee was not accorded due position. At that time, "she stood 5'2" tall and
illegal: process. Here, petitioner was accorded utmost weighed over 320 pounds." Respondent claimed
leniency. He was given more than four (4) years to that the morbid obesity of plaintiff compromised her
“Conscious of the fact that Nadura's case cannot be comply with the weight standards of PAL. ability to evacuate patients in case of emergency
made to fall squarely within the specific causes and it also put her at greater risk of serious
enumerated in subparagraphs 1(a) to (e), Benguet In the case at bar, the evidence on record militates diseases.
invokes the provisions of subparagraph 1(f) and against petitioner's claims that obesity is a disease.
says that Nadura's illness - occasional attacks of That he was able to reduce his weight from 1984 to Cook contended that the action of respondent
asthma - is a cause analogous to them. 1992 clearly shows that it is possible for him to lose amounted to discrimination on the basis of a
“Even a cursory reading of the legal provision under weight given the proper attitude, determination, handicap. This was in direct violation of Section
consideration is sufficient to convince anyone that, and self-discipline. Indeed, during the clarificatory 504(a) of the Rehabilitation Act of 1973, which
as the trial court said, "illness cannot be included as hearing on December 8, 1992, petitioner himself incorporates the remedies contained in Title VI of
an analogous cause by any stretch of imagination." claimed that "[t]he issue is could I bring my weight the Civil Rights Act of 1964. Respondent claimed,
It is clear that, except the just cause mentioned in down to ideal weight which is 172, then the answer however, that morbid obesity could never constitute
sub-paragraph 1(a), all the others expressly is yes. I can do it now." a handicap within the purview of the Rehabilitation
enumerated in the law are due to the voluntary Act. Among others, obesity is a mutable condition,
and/or willful act of the employee. How Nadura's True, petitioner claims that reducing weight is thus plaintiff could simply lose weight and rid
illness could be considered as "analogous" to any of costing him "a lot of expenses." However, petitioner herself of concomitant disability.
them is beyond our understanding, there being no has only himself to blame. He could have easily
claim or pretense that the same was availed the assistance of the company physician, The appellate Court disagreed and held that morbid
contracted through his own voluntary act.” per the advice of PAL. He chose to ignore the obesity is a disability under the Rehabilitation Act
suggestion. In fact, he repeatedly failed to report and that respondent discriminated against Cook
The reliance on Nadura is off-tangent. The factual when required to undergo weight checks, without based on "perceived" disability. The evidence
milieu in Nadura is substantially different from the offering a valid explanation. Thus, his fluctuating included expert testimony that morbid obesity is a
case at bar. First, Nadura was not decided under weight indicates absence of willpower rather than physiological disorder. It involves a dysfunction of
the Labor Code. The law applied in that case was an illness. both the metabolic system and the neurological
appetite - suppressing signal system, which is II. The dismissal of petitioner can be reasonably necessary to the accomplishment of that
capable of causing adverse effects within the predicated on the bona fide occupational work-related purpose; and (3) the employer must
musculoskeletal, respiratory, and cardiovascular qualification defense. establish that the standard is reasonably necessary
systems. Notably, the Court stated that "mutability in order to accomplish the legitimate work-related
is relevant only in determining the substantiality of Employment in particular jobs may not be limited to purpose. Similarly, in Star Paper Corporation v.
the limitation flowing from a given impairment," persons of a particular sex, religion, or national Simbol, this Court held that in order to justify a
thus "mutability only precludes those conditions origin unless the employer can show that sex, BFOQ, the employer must prove that (1) the
that an individual can easily and quickly reverse by religion, or national origin is an actual qualification employment qualification is reasonably related to
behavioral alteration." for performing the job. The qualification is called a the essential operation of the job involved; and (2)
bona fide occupational qualification (BFOQ). In the that there is factual basis for believing that all or
Unlike Cook, however, petitioner is not morbidly United States, there are a few federal and many substantially all persons meeting the qualification
obese. In the words of the District Court for the state job discrimination laws that contain an would be unable to properly perform the duties of
District of Rhode Island, Cook was sometime before exception allowing an employer to engage in an the job.
1978 "at least one hundred pounds more than what otherwise unlawful form of prohibited discrimination
is considered appropriate of her height." According when the action is based on a BFOQ necessary to In short, the test of reasonableness of the company
to the Circuit Judge, Cook weighed "over 320 the normal operation of a business or enterprise. policy is used because it is parallel to BFOQ. BFOQ
pounds" in 1988. Clearly, that is not the case here. is valid "provided it reflects an inherent quality
At his heaviest, petitioner was only less than 50 Petitioner contends that BFOQ is a statutory reasonably necessary for satisfactory job
pounds over his ideal weight. defense. It does not exist if there is no statute performance."
providing for it. Further, there is no existing BFOQ
In fine, We hold that the obesity of petitioner, when statute that could justify his dismissal. In Duncan Association of Detailman-PTGWTO v.
placed in the context of his work as flight attendant, Glaxo Wellcome Philippines, Inc., the Court did not
becomes an analogous cause under Article 282(e) Both arguments must fail. hesitate to pass upon the validity of a company
of the Labor Code that justifies his dismissal from policy which prohibits its employees from marrying
the service. His obesity may not be unintended, but First, the Constitution, the Labor Code, and RA No. employees of a rival company. It was held that the
is nonetheless voluntary. As the CA correctly puts 7277 or the Magna Carta for Disabled Persons company policy is reasonable considering that its
it, "[v]oluntariness basically means that the just contain provisions similar to BFOQ. purpose is the protection of the interests of the
cause is solely attributable to the employee without company against possible competitor infiltration on
any external force influencing or controlling his Second, in British Columbia Public Service its trade secrets and procedures.
actions. This element runs through all just causes Employee Commission (BSPSERC) v. The British
under Article 282, whether they be in the nature of Columbia Government and Service Employee's Verily, there is no merit to the argument that BFOQ
a wrongful action or omission. Gross and habitual Union (BCGSEU), the Supreme Court of Canada cannot be applied if it has no supporting statute.
neglect, a recognized just cause, is considered adopted the so-called "Meiorin Test" in determining Too, the Labor Arbiter, NLRC, and CA are one in
voluntary although it lacks the element of intent whether an employment policy is justified. Under holding that the weight standards of PAL are
found in Article 282(a), (c), and (d)." this test, (1) the employer must show that it reasonable. A common carrier, from the nature of
adopted the standard for a purpose rationally its business and for reasons of public policy, is
connected to the performance of the job; (2) the bound to observe extraordinary diligence for the
employer must establish that the standard is safety of the passengers it transports. It is bound to
carry its passengers safely as far as human care passengers and the evacuation of the aircraft when cabin attendant occupies more space than a slim
and foresight can provide, using the utmost an emergency occurs. Passenger safety goes to the one is an unquestionable fact which courts can
diligence of very cautious persons, with due regard core of the job of a cabin attendant. Truly, airlines judicially recognize without introduction of
for all the circumstances. need cabin attendants who have the necessary evidence. It would also be absurd to require airline
strength to open emergency doors, the agility to companies to reconfigure the aircraft in order to
The law leaves no room for mistake or oversight on attend to passengers in cramped working widen the aisles and exit doors just to
the part of a common carrier. Thus, it is only logical conditions, and the stamina to withstand grueling accommodate overweight cabin attendants like
to hold that the weight standards of PAL show its flight schedules. petitioner.
effort to comply with the exacting obligations
imposed upon it by law by virtue of being a On board an aircraft, the body weight and size of a The biggest problem with an overweight cabin
common carrier. cabin attendant are important factors to consider in attendant is the possibility of impeding passengers
case of emergency. Aircrafts have constricted cabin from evacuating the aircraft, should the occasion
The business of PAL is air transportation. As such, it space, and narrow aisles and exit doors. Thus, the call for it. The job of a cabin attendant during
has committed itself to safely transport its arguments of respondent that "[w]hether the emergencies is to speedily get the passengers out
passengers. In order to achieve this, it must airline's flight attendants are overweight or not has of the aircraft safely. Being overweight necessarily
necessarily rely on its employees, most particularly no direct relation to its mission of transporting impedes mobility. Indeed, in an emergency
the cabin flight deck crew who are on board the passengers to their destination"; and that the situation, seconds are what cabin attendants are
aircraft. The weight standards of PAL should be weight standards "has nothing to do with dealing with, not minutes. Three lost seconds can
viewed as imposing strict norms of discipline upon airworthiness of respondent's airlines," must fail. translate into three lost lives. Evacuation might
its employees. slow down just because a wide-bodied cabin
In other words, the primary objective of PAL in the The rationale in Western Air Lines v. Criswell relied attendant is blocking the narrow aisles. These
imposition of the weight standards for cabin crew is upon by petitioner cannot apply to his case. What possibilities are not remote.
flight safety. It cannot be gainsaid that cabin was involved there were two (2) airline pilots who Petitioner is also in estoppel. He does not dispute
attendants must maintain agility at all times in were denied reassignment as flight engineers upon that the weight standards of PAL were made known
order to inspire passenger confidence on their reaching the age of 60, and a flight engineer who to him prior to his employment. He is presumed to
ability to care for the passengers when something was forced to retire at age 60. They sued the airline know the weight limit that he must maintain at all
goes wrong. It is not farfetched to say that airline company, alleging that the age-60 retirement for times. In fact, never did he question the authority
companies, just like all common carriers, thrive due flight engineers violated the Age Discrimination in of PAL when he was repeatedly asked to trim down
to public confidence on their safety records. People, Employment Act of 1967. Age-based BFOQ and his weight. Bona fides exigit ut quod convenit fiat.
especially the riding public, expect no less than that being overweight are not the same. The case of Good faith demands that what is agreed upon shall
airline companies transport their passengers to overweight cabin attendants is another matter. be done. Kung ang tao ay tapat kanyang
their respective destinations safely and soundly. A Given the cramped cabin space and narrow aisles tutuparin ang napagkasunduan.
lesser performance is unacceptable. and emergency exit doors of the airplane, any
overweight cabin attendant would certainly have Too, the weight standards of PAL provide for
The task of a cabin crew or flight attendant is not difficulty navigating the cramped cabin area. separate weight limitations based on height and
limited to serving meals or attending to the whims body frame for both male and female cabin
and caprices of the passengers. The most important In short, there is no need to individually evaluate attendants. A
activity of the cabin crew is to care for the safety of their ability to perform their task. That an obese
progressive discipline is imposed to allow non- Indeed, except for pointing out the names of the invoked against acts of private individuals. Indeed,
compliant cabin attendants sufficient opportunity to supposed overweight cabin attendants, petitioner the United States Supreme Court, in interpreting
meet the weight standards. Thus, the clear-cut miserably failed to indicate their respective ideal the Fourteenth Amendment, which is the source of
rules obviate any possibility for the commission of weights; weights over their ideal weights; the our equal protection guarantee, is consistent in
abuse or arbitrary action on the part of PAL. periods they were allowed to fly despite their being saying that the equal protection erects no shield
overweight; the particular flights assigned to them; against private conduct, however discriminatory or
III. Petitioner failed to substantiate his claim the discriminating treatment they got from PAL; wrongful. Private actions, no matter how egregious,
that he was discriminated against by PAL. and other relevant data that could have adequately cannot violate the equal protection guarantee.
established a case of discriminatory treatment by
Petitioner next claims that PAL is using passenger PAL. In the words of the CA, "PAL really had no IV. The claims of petitioner for reinstatement
safety as a convenient excuse to discriminate substantial case of discrimination to meet." and wages are moot.
against him. We are constrained, however, to hold
otherwise. We agree with the CA that "[t]he We are not unmindful that findings of facts of As his last contention, petitioner avers that his
element of discrimination came into play in this administrative agencies, like the Labor Arbiter and claims for reinstatement and wages have not been
case as a secondary position for the private the NLRC, are accorded respect, even finality. The mooted. He is entitled to reinstatement and his full
respondent in order to escape the consequence of reason is simple: administrative agencies are backwages, "from the time he was illegally
dismissal that being overweight entailed. It is a experts in matters within their specific and dismissed" up to the time that the
confession- and-avoidance position that impliedly specialized jurisdiction. But the principle is not a NLRC was reversed by the CA.
admitted the cause of dismissal, including the hard and fast rule. It only applies if the findings of
reasonableness of the applicable standard and the facts are duly supported by substantial evidence. If At this point, Article 223 of the Labor Code finds
private respondent's failure to comply." It is a basic it can be shown that administrative bodies grossly relevance:
rule in evidence that each party must prove his misappreciated evidence of such nature so as to
affirmative allegation. compel a conclusion to the contrary, their findings “In any event, the decision of the Labor Arbiter
of facts must necessarily be reversed. Factual reinstating a dismissed or separated employee,
Since the burden of evidence lies with the party findings of administrative agencies do not have insofar as the reinstatement aspect is concerned,
who asserts an affirmative allegation, petitioner has infallibility and must be set aside when they fail the shall immediately be executory, even pending
to prove his allegation with particularity. There is test of arbitrariness. appeal. The employee shall either be admitted back
nothing on the records which could support the to work under the same terms and conditions
finding of discriminatory treatment. Petitioner Here, the Labor Arbiter and the NLRC inexplicably prevailing prior to his dismissal or separation or, at
cannot establish discrimination by simply naming misappreciated evidence. We thus annul their the option of the employer, merely reinstated in the
the supposed cabin attendants who are allegedly findings. payroll. The posting of a bond by the employer shall
similarly situated with him. Substantial proof must not stay the execution for reinstatement provided
be shown as to how and why they are similarly To make his claim more believable, petitioner herein.”
situated and the differential treatment petitioner invokes the equal protection clause guaranty of the
got from PAL despite the similarity of his situation Constitution. However, in the absence of The law is very clear. Although an award or order of
with other employees. governmental interference, the liberties guaranteed reinstatement is self- executory and does not
by the Constitution cannot be invoked. Put require a writ of execution, the option to exercise
differently, the Bill of Rights is not meant to be actual reinstatement or payroll reinstatement
belongs to the employer. It does not belong to the separation pay in an amount equivalent to one-half
employee, to the labor tribunals, or even to the V. Petitioner is entitled to separation pay. (1/2) month's pay for every year of service, which
courts. should include his regular allowances.
Be that as it may, all is not lost for petitioner. SO ORDERED.
Contrary to the allegation of petitioner that PAL "did
everything under the sun" to frustrate his Normally, a legally dismissed employee is not
"immediate return to his previous position, "there is entitled to separation pay. This may be deduced
evidence that PAL opted to physically reinstate him from the language of Article 279 of the Labor Code
to a substantially equivalent position in accordance that "[a]n employee who is unjustly dismissed from
with the order of the Labor Arbiter. In fact, work shall be entitled to reinstatement without loss
petitioner duly received the return to work notice on of seniority rights and other privileges and to his
February 23, 2001, as shown by his signature. full backwages, inclusive of allowances, and to his
other benefits or their monetary equivalent
Petitioner cannot take refuge in the computed from the time his compensation was
pronouncements of the Court in a case that "[t]he withheld from him up to the time of his actual
unjustified refusal of the employer to reinstate the reinstatement." Luckily for petitioner, this is not an
dismissed employee entitles him to payment of his ironclad rule.
salaries effective from the time the
employer failed to reinstate him despite the Exceptionally, separation pay is granted to a legally
issuance of a writ of execution" and ""even if the dismissed employee as an act "social justice," or
order of reinstatement of the Labor Arbiter is based on "equity." In both instances, it is required
reversed on appeal, it is obligatory on the part of that the dismissal (1) was not for serious
the employer to reinstate and pay the wages of the misconduct; and (2) does not reflect on the moral
employee during the period of appeal until reversal character of the employee.
by the higher court." He failed to prove that he
complied with the return to work order of PAL. Here, We grant petitioner separation pay equivalent
Neither does it appear on record that he actually to one-half (1/2) month's pay for every year of
rendered services for PAL from the moment he was service. It should include regular allowances which
dismissed, in order to insist on the payment of his he might have been receiving. We are not blind to
full backwages. the fact that he was not dismissed for any serious
misconduct or to any act which would reflect on his
In insisting that he be reinstated to his actual moral character. We also recognize that his
position despite being overweight, petitioner in employment with PAL lasted for more or less a
effect wants to render the issues in the present decade.
case moot. He asks PAL to comply with the
impossible. Time and again, the Court ruled that WHEREFORE, the appealed Decision of the Court
the law does not exact compliance with the of Appeals is AFFIRMED but MODIFIED in that
impossible. petitioner Armando G. Yrasuegui is entitled to