THIRD DIVISION
[ G.R. No. 255602. August 04, 2021 ]JOY M. VILLARICO v. D.M. CONSUNJI +
JOY M. VILLARICO, PETITIONER, VS. D.M. CONSUNJI, INC., AND MADELINE B. GACUTAN, RESPONDENTS.
D E C I S I O N
JOY M. VILLARICO v. D.M. CONSUNJI +
JOY M. VILLARICO, PETITIONER, VS. D.M. CONSUNJI, INC., AND MADELINE B. GACUTAN, RESPONDENTS.
D E C I S I O N
CARANDANG, J.:
Villarico first worked for DMCI as a laborer on November 8, 2007.[6] He was subsequently assigned to different projects, the last of which was the NAIA Expressway Project in March 2016 as a crane operator.[7] Villarico alleged that on March 30, 2016, the site timekeeper informed him that he was suspended. Site Administrator Miguelito Chua (Chua) confirmed his suspension due to a violation of company policy. He was suspended for four days.[8]
When Villarico returned to work, Chua asked him to sign a document similar to a notice of explanation, but he refused. Chua then told him that he was absent without leave for four days. His termination paper will be sent to him via courier. Thus; Villarico sought assistance from the NLRC. Mediation and conciliation then ensued between the parties. In the meantime, DMCI placed Villarico on floating status for two months. Thereafter, he was required to undergo medical examination. DMCI informed him that he failed his drug test so he was ordered to return after one month for confirmatory testing.[9]
Villarico followed-up after one month but DMCI informed him that they were still waiting for the result of the confirmatory testing. He was instructed to return after two weeks. Villarico returned as instructed but was merely given a number to follow-up his concern. Villarico finally filed a complaint on August 30, 2016 against respondents after all his inquiries led to nothing.[10]
Respondents denied that Villarico was illegally dismissed. They admitted that DMCI engaged the services of Villarico under several project employment contracts. They entered into another project employment contract with him covering the period from September 16, 2015 to April 22, 2016. Villarico was assigned to work on the NAIA Expressway Project. The employment contract expired upon the completion of his assigned project. A Notice of Termination was issued to Villarico. DMCI also filed an Employees' Termination Report with the Department of Labor and Employment (DOLE).[11]
On June 1, 2016, Villarico applied as a crane operator. However, he was declared unfit to work after testing positive for the use of prohibited drugs during his pre-employment medical examination.[12] Villarico also tested positive for dangerous drugs in the confirmatory test.[13] DMCI's Employee Handbook prohibits the non-prescription use of controlled substances. Its Code of Conduct imposes the penalty of dismissal for the use of prohibited drugs.[14] Further, respondents submitted bank debit advisories to prove that Villarico was already given his service incentive leave and 13th month pay.[15]
On July 3, 2017, the LA rendered its Decision[16] as follows:
WHEREFORE, premises considered, judgment is hereby rendered DISMISSING the complaint for lack of merit.
SO ORDERED.[17] (Emphasis in the original)
First, the LA held that Villarico was a project employee. The Appointment Paper executed by the parties showed that his employment was for a pre-determined duration or period of the project. Pursuant to the Court's ruling in William Construction Corp. v. Trinidad,[18] Villarico did not acquire regular employment even though he was repeatedly hired by DMCI because it is evident from the records that he was hired as a project employee. All his contracts were for a fixed duration. The LA noted that respondents presented the required notices of termination of contract and reports submitted to the DOLE.[19] Second, the LA ruled that Villarico was not illegally dismissed because he was not dismissed at all. His contract simply expired on April 22, 2016. Moreover, Villarico admittedly failed the drug test. Based on DMCI's Handbook, it has a drug-free workplace policy. Unlawful drug abuse is prohibited whether on or off-duty. Considering the sensitive nature of Villarico's position as a crane operator, the LA could not fault DMCI for not rehiring him after he tested positive for the use of tetrahydrocannabinol. Since there is no illegal dismissal, Villarico is not entitled to separation pay and backwages.[20] Third, the LA denied Villarico's prayer for service incentive leave pay and 13th month pay because he failed to present evidence to refute the bank advisories submitted by respondents as proof of payment to him. The LA also denied Villarico's prayer for damages and attorney's fees because there is no basis to award it.[21] Villarico appealed to the NLRC.
The NLRC promulgated its Resolution[22] on August 30, 2017, the dispositive portion of which states:
WHEREFORE, premised on all the foregoing considerations, the appeal is hereby DISMISSED for utter lack of merit.
Accordingly, the Decision appealed from is hereby AFFIRMED en toto. [sic]
SO ORDERED.[23] (Emphasis in the original)
The NLRC agreed with the LA that Villarico was a project employee whose contract of employment clearly fixed a duration for a specific project. The termination and completion of the project was duly reported by DMCI to the DOLE. The NLRC also concurred that Villarico's claim of illegal dismissal is unmeritorious. There was no dismissal to speak of. Villarico's employment contract just expired.[24] DMCI's refusal to rehire Villarico is not tantamount to illegal dismissal. DMCI cannot be compelled to rehire him after he was found positive for prohibited drugs. As for Villarico's monetary claims, the NLRC held that these were sufficiently belied by the evidence submitted by respondents.[25]
Villarico filed a motion for reconsideration. After the NLRC denied it, he filed a petition for certiorari before the CA.
In its August 28, 2020 Decision,[26] the CA held:
WHEREFORE, premises considered, the Petition for Certiorari is DISMISSED. The Resolutions promulgated on August 30, 2017, and September 25, 2017, by the National Labor Relations Commission - Third Division, in NLRC LAC No.08-002605-17 [NLRC NCR Case No. 08-10535-16], are AFFIRMED in toto.
SO ORDERED.[27] (Emphasis in the original)
The CA held that Villarico was a project employee. He was sufficiently informed of his employment as a project employee, its duration, and the scope of his employment at the time of his engagement based on the appointment papers. This is further proven by the Notices of Termination issued to Villarico and the Termination Reports submitted by respondents to the DOLE. The CA disagreed with Villarico's contention that he should be considered a regular employee because the Court has held that repeated and successive rehiring of project employees does not, by itself, qualify them as regular employees. The CA also concurred with the NLRC that Villarico was not dismissed. His contract of employment simply expired. DMCI cannot be compelled to hire him after he was found positive for drugs in his pre-employment medical examination. Accordingly, the CA concluded that Villarico failed to prove that the NLRC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in issuing its rulings.[28]
Villarico filed a motion for reconsideration[29] that was denied by the CA. Thereafter, he filed a Petition for Review on Certiorari before this Court to assail the ruling of the CA. Villarico argued in his petition that first, he was a regular employee. DMCI hired him several times as a laborer from September 2007 to April 2010, a rigger from June 2010 to March 2014, and a crane operator from March 2014 to April 2016, for a total of nine (9) years. He has numerous appointments that were immediately successive or with no single day in between, thus implying continuity of service rendered by him. The services he rendered were necessary and desirable to the business or trade of DMCI. In D.M. Consunji Corporation v. Bello,[30] the Court held that respondent acquired the status of a regular employee because of his continuous work as a mason. Villarico argued that the ruling should apply to him. Further, the appointment papers should not be taken against Villarico. The terms thereof were not explained to him when he signed it. An explanation was necessary because he is a high school drop-out. Also, the nature of employment is determined by law and not by contract.[31]
Second, Villarico was dismissed by DMCI. He was suspended without prior notice and without the benefit of a hearing. When he returned to work after being suspended, he was required to sign a document by Chua. His refusal to do so resulted in respondents declaring that he was absent for four days without leave. Respondents did not allow Villarico to immediately return to work after he referred the matter to the LA. They required him to undergo medical examination. When he failed it, they severed his employment using the results of the examination and the expiration of his contract as their excuse. Respondents did not issue a written notice of termination to Villarico.[32]
Third, Villarico was illegally dismissed and is therefore entitled to full backwages from the time that his compensation was withheld until his actual reinstatement. It would also be proper to award separation pay in lieu of reinstatement because Villarico is no longer willing to be reinstated. In addition, Villarico is entitled to overtime pay and payment for work he rendered during rest days. He is also entitled to service incentive leave pay and 13th month pay. Respondents did not dispute that Villarico is entitled to overtime pay, night shift differential pay, and salary differential. The bank debit advisories submitted by respondents were insufficient to prove payment. Fourth, Villarico is entitled to moral and exemplary damages, as well as attorney's fees.[33]
The issue before this Court is whether the CA erred in affirming the dismissal of Villarico's complaint.
The petition is partly meritorious.
Section 1, Rule 45 of the Rules of Court provides that a petition filed under this provision shall raise only questions of law. This is because the Court is not a trier of facts.[34] However, there are recognized exceptions to this general rule, one of which is when the inference or conclusion arrived at by the courts a quo is erroneous based on the available facts. After all, factual findings of the NLRC and the LA are not infallible.[35] The Court finds that the exception applies in this case. The facts herein lead to a conclusion different from what was made by the LA, NLRC, and the CA.
Article 295 of Presidential Decree No. 442 or the Labor Code of the Philippines defines who are considered regular and project employees:
Article 295. Regular and Casual Employment. – The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or service to be performed is seasonal in nature and the employment is for the duration of the season.
An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.
The following are considered in order to determine whether one is a regular employee or a project employee: (a) the employees were assigned to carry out a specific project or undertaking; and (b) the duration and scope of which were specified at the time the employees were engaged for that project.[36] In D.M. Consunji Corp v. Bello,[37] the Court held that the employee therein was a regular employee because of his continuous hiring as a mason for six years and the necessity and desirability of his skill to the employer's business.[38] The Court likewise held in D.M. Consunji, Inc. v. Jamin[39] that the continuous, repeated, and successive rehiring of the employee for 38 projects in a span of almost 31 years, as well as the necessity an desirability of his skill as a carpenter, undoubtedly made him a regular employee.[40]
DMCI first employed Villarico as a laborer in 2007 and later employed him as a rigger in 2010. He subsequently became a crane operator in 2014. Respondents listed the following projects that Villarico was assigned prior to the NAIA Expressway Project in its Position Paper before the LA:
The numerous appointment papers[42] of Villarico which respondents themselves submitted before the LA,[43] show that DMCI continuously and successively employed him for nine (9) years, with barely any gaps in between his appointments, to wit:
It is undoubtable that Villarico's skills are necessary and desirable to the business of DMCI considering that the latter continuously employed him in its various projects. Following the Court's previous rulings in D.M. Consunji, Inc. v. Jamin and D.M. Consunji Corp. v. Bello, Villarico is a regular employee of DMCI.
The termination of Villarico's employment for the completion of the project he was assigned to is not proper. However, Villarico was not illegally dismissed because there was just cause for his dismissal. Villarico did not dispute the Medical Examination Certificate[108] dated June 1, 2016 and the Drug Test Report[109] dated August 31, 2016 wherein it is stated that he tested positive for Tetrahydrocannabinol. He did not present any evidence to refute such findings. Tetrahydrocannabinol is considered a dangerous drug under Republic Act No. (R.A.) 9165 or the Comprehensive Dangerous Drugs Act of 2002. The use of illegal drugs qualifies as serious misconduct under Article 297 of the Labor Code. Misconduct is defined as the improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not merely an error in judgment. It is considered serious when it is of a grave and aggravated character and not merely trivial or unimportant.[110] In Bughaw, Jr. v. Treasure Island Industrial Corp., the Court held that "any employee under the influence of drugs cannot possibly continue doing his duties without posing a serious threat to the lives and property of his co-workers and even his employer."[111] Villarico may not have been caught by DMCI in the act of using illegal drugs but his failure to disprove the findings showing that he tested positive for tetrahydrocannabinol cannot be disregarded. Thus, DMCI had just cause for terminating Villarico's employment. Consequently, Villarico is not entitled to backwages and separation pay in lieu of reinstatement.
Though there was a valid ground for the dismissal of Villarico, the requirements of due process were not observed. Villarico was entitled to two (2) notices, the first to inform him of the particular act or omission for which his dismissal was sought while the second to inform him of his dismissal.[112] There is no evidence that either notice was sent to Villarico. The termination paper[113] regarding the completion of the latest project that Villarico was assigned to certainly did not inform him of the basis for his dismissal. It is not the notice required under the law. Hence, DMCI did not comply with the twin-notice required under the law. The violation of Villarico's right to due process entitles him to nominal damages in the amount of P30,000.00.[114]
With respect to Villarico's prayer for 13th month pay and service incentive leave pay, it is respondents who bear the burden of proving that these have been paid.[115] The bank advisories[116] submitted by DMCI do not sufficiently prove payment of Villarico's 13th month pay and service incentive leave pay. The bank advisories do not establish that the account listed in it belongs to Villarico and that he received the amounts indicated therein. In fact, most of the bank advisories were not signed by a representative of the bank. Hence, DMCI must pay Villarico his 13th month pay and service incentive leave.
Villarico is likewise entitled to attorney's fees in accordance with Article 2208 of the Civil Code of the Philippines which allows the recovery of attorney's fees in actions for indemnity under workmen's compensation and employer's liability laws. However, he is not entitled to moral damages and exemplary damages for lack of proof of bad faith on the part of respondents. There is also no basis to award exemplary damages to Villarico under Articles 2229 and 2232 of the Civil Code. No moral, temperate, liquidated, or compensatory damages were awarded to him. And it was not shown that respondents acted in a wanton, fraudulent, reckless, oppressive, or malevolent manner. The total amount awarded to Villarico is subject to a legal interest of six percent (6%) per annum from the finality of this Decision until its full payment pursuant to Nacar v. Gallery Frames.[117]
Gacutan was impleaded by Villarico as the Human Resources Department Manager/Vice-President of DMCI. Corporate officers cannot be held personally liable unless it is shown that they acted with malice or in bad faith.[118] There is no evidence that Gacutan acted with malice or in bad faith with respect to the dismissal of Villarico. As such, she cannot be held personally liable to Villarico.
WHEREFORE, the petition is PARTIALLY GRANTED. The Decision dated August 28, 2020 and Resolution dated January 18, 2021 of the Court of Appeals in CA-G.R. SP No. 153702 are AFFIRMED with MODIFICATION. Respondent D.M. Consunji, Inc. is ORDERED to pay petitioner Joy M. Villarico nominal damages in the amount of P30,000.00, 13th month pay for 2007 to 2016, service incentive leave pay for 2007 to 2016, and attorney's fees equivalent to ten percent (10%) of the total amount awarded. The total amount awarded is subject to a legal interest of six percent (6%) per annum from the finality of this Decision until its full satisfaction.
SO ORDERED.
Leonen (Chairperson), Zalameda, Rosario, and J. Lopez,* JJ., concur.
* Designated as additional Member of the Third Division per S.O. No. 2834.
[1] Rollo, pp. 18-55.
[2] Penned by Associate Justice Carlito B. Calpatura, with the concurrence of Associate Justices Ramon M. Bato, Jr. and Maria Elisa Sempio Diy; id. at 58-67.
[3] Id. at 69-70.
[4] Penned by Commissioner Pablo C. Espiritu, Jr., with the concurrence of Presiding Commissioner Alex A. Lopez and Commissioner Cecilio Alejandro C. Villanueva; id. at 107-115.
[5] Penned by Labor Arbiter Thomas T. Que, Jr.; id. at 284-296.
[6] Id. at 284.
[7] Id. at 59.
[8] Id. at 285.
[9] Id. at 286.
[10] Id. at 286-287.
[11] Id. at 287-289.
[12] Id. at 289.
[13] Id. at 291.
[14] Id. at 290.
[15] Id. at 60.
[16] Id. at 284-296.
[17] Id. at 296.
[18] 629 Phil. 185 (2010).
[19] Rollo, pp. 292-294.
[20] Id. at 294-295.
[21] Id. at 295-296.
[22] Id. at 107-113.
[23] Id. at 112.
[24] Id. at 111.
[25] Id. at 112.
[26] Supra note 2.
[27] Rollo, pp. 67.
[28] Id. at 64-67.
[29] Supra note 3.
[30] 715 Phil. 335 (2013).
[31] Rollo, pp. 27-35.
[32] Id. at 36.
[33] Id. at 37-50.
[34] Central Azucarera de Bais v. Heirs of Apostol, 828 Phil. 211, 221 (2018).
[35] See General Milling Corp. v. Viajar, 702 Phil. 532, 541 (2013).
[36] Mirandilla v. Jose Calma Development Corp., G.R. No. 242834, June 26, 2019.
[37] Supra note 29.
[38] Id.
[39] 686 Phil. 220 (2012).
[40] Id.
[41] Id.
[42] Rollo, pp. 160-234.
[43] Id. at 146.
[44] Id. at 221.
[45] Id. at 222.
[46] Id. at 223.
[47] Id. at 224.
[48] Id. at 225.
[49] Id. at 226.
[50] Id. at 227.
[51] Id. at 228.
[52] Id. at 229.
[53] Id. at 230.
[54] Id. at 231.
[55] Id. at 232.
[56] Id. at 233.
[57] Id. at 234.
[58] Id. at 214.
[59] Id. at 215.
[60] Id. at 216.
[61] Id. at 217.
[62] Id. at 218.
[63] Id. at 219.
[64] Id. at 212.
[65] Id. at 203.
[66] Id. at 204.
[67] Id. at 205.
[68] Id. at 206.
[69] Id. at 207.
[70] Id. at 208.
[71] Id. at 209.
[72] Id. at 210.
[73] Id. at 197.
[74] Id. at 198.
[75] Id. at 199.
[76] Id. at 200.
[77] Id. at 201.
[78] Id. at 193.
[79] Id. at 194.
[80] Id. at 195.
[81] Id. at 179.
[82] Id. at 180.
[83] Id. at 181.
[84] Id. at 182.
[85] Id. at 183.
[86] Id. at 184.
[87] Id. at 185.
[88] Id. at 186.
[89] Id. at 187.
[90] Id. at 188.
[91] Id. at 189.
[92] Id. at 190.
[93] Id. at 191.
[94] Id. at 170.
[95] Id. at 171.
[96] Id. at 172.
[97] Id. at 173.
[98] Id. at 174.
[99] Id. at 175.
[100] Id. at 176.
[101] Id. at 160.
[102] Id. at 161.
[103] Id. at 162.
[104] Id. at 163.
[105] Id. at 165.
[106] Id. at 166.
[107] Id. at 164.
[108] Id. at 244-245.
[109] Id. at 253.
[110] Bughaw, Jr. v. Treasure Island Industrial Corp., 573 Phil. 435, 445 (2008).
[111] Id.
[112] Jose, Jr. v. Michaelmar Phils., Inc., 621 Phil. 107, 125 (2009).
[113] Rollo, p. 168.
[114] Agabon v. National labor Relations Commission, 485 Phil. 248 (2004).
[115] See Mantle Trading Services, Inc. v. National labor Relations Commission, 611 Phil. 570, 582 (2009).
[116] Rollo, pp. 262-281.
[117] 716 Phil. 267 (2013).
[118] People's Security, Inc. v. Flores, 801 Phil. 1029 (2016).