Thursday, May 10, 2012

When does a project employee become a regular employee? - G.R. No. 192514

G.R. No. 192514

"x x x.

The CA pierced the cover of Jamin’s project employment contract and declared him a regular employee who had been dismissed without cause and without notice. To reiterate, the CA’s findings were based on: (1) Jamin’s repeated and successive engagements in DMCI’s construction projects, and (2) Jamin’s performance of activities necessary or desirable in DMCI’s usual trade or business.

          We agree with the CA. In Liganza v. RBL Shipyard Corporation,[37]  the Court held that “[a]ssuming, without granting[,] that [the] petitioner was initially hired for specific projects or undertakings, the repeated re-hiring and continuing need for his services for over eight (8) years have undeniably made him a regular employee.” We find the Liganza ruling squarely applicable to this case, considering that  for almost 31 years, DMCI had repeatedly, continuously and successively engaged Jamin’s services since he was hired on December 17, 1968 or for a total of 38 times — 35 as shown by the schedule of projects submitted by DMCI to the labor arbiter[38] and three more projects or engagements added by Jamin, which he claimed DMCI intentionally did not include in its schedule so as to make it appear that there were wide gaps in his engagements.  One of the three projects was local, the Ritz Towers,[39] from July 29, 1980 to June 12, 1982, while the other two were overseas — the New Istana Project in Brunei, Darussalam, from June 23, 1982 to February 16, 1984;[40] and again, the New Istana Project, from January 24, 1986 to May 25, 1986.[41]

          We reviewed Jamin’s employment contracts as the CA did and we noted that while the contracts indeed show that Jamin had been  engaged as a project employee, there was an almost unbroken string of Jamin’s rehiring from December 17, 1968 up to the termination of his employment on March 20, 1999. While the history of Jamin’s employment (schedule of projects)[42] relied upon by DMCI shows a gap of almost four years in his employment for the period between July 28, 1980 (the supposed completion date of the Midtown Plaza project) and June 13, 1984 (the start of the IRRI Dorm IV project), the gap was caused by the company’s omission of the three projects above mentioned.

          For not disclosing that there had been other projects where DMCI engaged his services, Jamin accuses the company of suppressing vital evidence that supports his contention that he rendered service in the company’s construction projects continuously and repeatedly for more than three decades. The non-disclosure might not have constituted suppression of evidence — it could just have been overlooked by the company — but the oversight is unfair to Jamin as the non-inclusion of the three projects gives the impression that there were substantial gaps not only of several months but years in his employment with DMCI.

          Thus, as Jamin explains, the Ritz Tower Project (July 29, 1980 to June 12, 1982) and the New Istana Project (June 23, 1982 to February 16, 1984) would explain the gap between the Midtown Plaza project (September 3, 1979 to July  28, 1980) and the IRRI Dorm IV project (June 13, 1984 to March 12, 1985) and the other New Istana Project (January 24, 1986 to May 25, 1986) would explain the gap between P. 516 Hanger (September 13, 1985 to January 23, 1986) and P. 516 Maint (May 26, 1986 to November 18, 1987).

          To reiterate, Jamin’s employment history with DMCI stands out for his continuous, repeated and successive rehiring in the company’s construction projects. In all the 38 projects where DMCI engaged Jamin’s services, the tasks he performed as a carpenter were indisputably necessary and desirable in DMCI’s construction business. He might not have been a member of a work pool as DMCI insisted that it does not maintain a work pool, but his continuous rehiring and the nature of his work unmistakably made him a regular employee. In Maraguinot, Jr. v. NLRC,[43] the Court held that once a project or work pool employee has been: (1) continuously, as opposed to intermittently, rehired by the same employer for the same tasks or nature of tasks; and (2) these tasks are vital, necessary and indispensable to the usual business or trade of the employer, then the employee must be deemed a regular employee.

          Further, as we stressed in Liganza,[44] “[r]espondent capitalizes on our ruling inD.M. Consunji, Inc. v. NLRC which reiterates the rule that the length of service of a project employee is not the controlling test of employment tenure but whether or not ‘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.’”

“Surely, length of time is not the controlling test for project employment. Nevertheless, it is vital in determining if the employee was hired for a specific undertaking or tasked to perform functions vital, necessary and indispensable to the usual business or trade of the employer. Here, [private] respondent had been a project employee several times over. His employment ceased to be coterminous with specific projects when he was repeatedly re-hired due to the demands of petitioner’s business.”[45] Without doubt, Jamin’s case fits squarely into the employment situation just quoted.

The termination reports

          With our ruling that Jamin had been a regular employee, the issue of whether DMCI submitted termination of employment reports, pursuant to Policy Instructions No. 20 (Undated[46]), as superseded by DOLE Department Order No. 19 (series of 1993), has become academic. DOLE Policy Instructions No. 20 provides in part:

            Project employees are not entitled to termination pay if they are terminated as a result of the completion of the project or any phase thereof in which they are employed, regardless of the number of projects in which they have been employed by a particular construction company. Moreover, the company is not required to obtain a clearance from the Secretary of Labor in connection with such termination. What is required of the company is a report to the nearest Public Employment Office for statistical purposes.[47]

To set the records straight, DMCI indeed submitted reports to the DOLE but as pointed out by Jamin, the submissions started only in 1992.[48] DMCI explained that it submitted the earlier reports (1982), but it lost and never recovered the reports. It reconstituted the lost reports and submitted them to the DOLE in October 1992; thus, the dates appearing in the reports.[49]

Is David M. Consunji, DMCI’s
President/General Manager, liable
for Jamin’s dismissal?

          While there is no question that the company is liable for Jamin’s dismissal, we note that the CA made no pronouncement on whether DMCI’s President/General Manager, a co-petitioner with the company, is also liable.[50] Neither had the parties brought the matter up to the CA nor with this Court. As there is no express finding of Mr. Consunji’s involvement in Jamin’s dismissal, we deem it proper to absolve him of liability in this case.
As a final point, it is well to reiterate a cautionary statement we made inMaraguinot,[51] thus:

          At this time,  we wish to allay any fears that this decision unduly burdens an employer by imposing a duty to re-hire a project employee even after completion of the project for which he was hired. The import of this decision is not to impose a positive and sweeping obligation upon the employer to re-hire project employees. What this decision merely accomplishes is a judicial recognition of the employment status of a project or work pool employee in accordance with what is fait accomplii.e., the continuous re-hiring by the employer of project or work pool employees who perform tasks necessary or desirable to the employer’s usual business or trade.

          In sum, we deny the present appeal for having been filed late and for lack of any reversible error. We see no point in extending any liberality by disregarding the late filing as the petition lacks merit.

x x x."