Summary procedure; exceptional cases where Certiorari was allowed by SC - G.R. No. 194880

G.R. No. 194880

"x x x.

Proceeding now to determine that very question of law, the Court finds that it was erroneous for the RTC to have taken cognizance of the Rule 65 Petition of respondent Sunvar, since the Rules on Summary Procedure expressly prohibit this relief for unfavorable interlocutory orders of the MeTC. Consequently, the assailed RTC Decision is annulled.

Under the Rules on Summary Procedure, a certiorari petition under Rule 65 against an interlocutory order issued by the court in a summary proceeding is a prohibited pleading.[52] The prohibition is plain enough, and its further exposition is unnecessary verbiage.[53] The RTC should have dismissed outright respondent Sunvar’s Rule 65 Petition, considering that it is a prohibited pleading. Petitioners have already alerted the RTC of this legal bar and immediately prayed for the dismissal of thecertiorari Petition.[54] Yet, the RTC not only refused to dismiss the certiorari Petition,[55] but even proceeded to hear the Rule 65 Petition on the merits.

 Respondent Sunvar’s reliance on Bayog v. Natino[56] and Go v. Court of Appeals[57] to justify acertiorari review by the RTC owing to “extraordinary circumstances” is misplaced. In both cases, there were peculiar and specific circumstances that justified the filing of the mentioned prohibited pleadings under the Revised Rules on Summary Procedure – conditions that are not availing in the case of respondent Sunvar.

In Bayog, Alejandro Bayog filed with the Municipal Circuit Trial Court (MCTC) of Patnongon-Bugasong-Valderama, Antique an ejectment case against Alberto Magdato, an agricultural tenant-lessee who had built a house over his property. When Magdato, an illiterate farmer, received the Summons from the MCTC to file his answer within 10 days, he was stricken with pulmonary tuberculosis and was able to consult a lawyer in San Jose, Antique only after the reglementary period. Hence, when the Answer of Magdato was filed three days after the lapse of the 10-day period, the MCTC ruled that it could no longer take cognizance of his Answer and, hence, ordered his ejectment from Bayog’s land. When his house was demolished in January 1994, Magdato filed a Petition for Relief with the RTC-San Jose, Antique, claiming that he was a duly instituted tenant in the agricultural property, and that he was deprived of due process. Bayog, the landowner, moved to dismiss the Petition on the ground of lack of jurisdiction on the part of the RTC, since a petition for relief from judgment covering a summary proceeding was a prohibited pleading. The RTC, however, denied his Motion to Dismiss and remanded the case to the MCTC for proper disposal.

In resolving the Rule 65 Petition, we ruled that although a petition for relief from judgment was a prohibited pleading under the Revised Rules on Summary Procedure, the Court nevertheless allowed the filing of the Petition pro hac vice, since Magdato would otherwise suffer grave injustice and irreparable injury:

We disagree with the RTC’s holding that a petition for relief from judgment (Civil Case No. 2708) is not prohibited under the Revised Rule on Summary Procedure, in light of the Jakihaca ruling. When Section 19 of the Revised Rule on Summary Procedure bars a petition for relief from judgment, or a petition forcertiorari, mandamus, or prohibition against any interlocutory order issued by the court, it has in mind no other than Section 1, Rule 38 regarding petitions for relief from judgment, and Rule 65 regarding petitions for certiorari, mandamus, or prohibition, of the Rules of Court, respectively. These petitions are cognizable by Regional Trial Courts, and not by Metropolitan Trial Courts, Municipal Trial Courts, or Municipal Circuit Trial Courts. If Section 19 of the Revised Rule on Summary Procedure and Rules 38 and 65 of the Rules of Court are juxtaposed, the conclusion is inevitable that no petition for relief from judgment nor a special civil action of certiorari, prohibition, or mandamus arising from cases covered by the Revised Rule on Summary Procedure may be filed with a superior court. This is but consistent with the mandate of Section 36 of B.P. Blg. 129 to achieve an expeditious and inexpensive determination of the cases subject of summary procedure.

Nevertheless, in view of the unusual and peculiar circumstances of this case, unless some form of relief is made available to MAGDATO, the grave injustice and irreparable injury that visited him through no fault or negligence on his part will only be perpetuated. Thus, the petition for relief from judgment which he filed may be allowed or treated, pro hac vice, either as an exception to the rule, or a regular appeal to the RTC, or even an action to annul the order (decision) of the MCTC of 20 September 1993. As an exception, the RTC correctly held that the circumstances alleged therein and the justification pleaded worked in favor of MAGDATO, and that the motion to dismiss Civil Case No. 2708 was without merit. xxx [58] (Emphasis supplied.)

On the other hand, in Go v. Court of Appeals, the Court was confronted with a procedural void in the Revised Rules of Summary Procedure that justified the resort to a Rule 65 Petition in the RTC. In that case, the preliminary conference in the subject ejectment suit was held in abeyance by the Municipal Trial Court in Cities (MTCC) of Iloilo City until after the case for specific performance involving the same parties shall have been finally decided by the RTC. The affected party appealed the suspension order to the RTC. In response, the adverse party moved to dismiss the appeal on the ground that it concerned an interlocutory order in a summary proceeding that was not the subject of an appeal. The RTC denied the Motion to Dismiss and subsequently directed the MTCC to proceed with the hearing of the ejectment suit, a ruling that was upheld by the appellate court.

In affirming the Decisions of the RTC and CA, the Supreme Court allowed the filing of a petition for certiorari against an interlocutory order in an ejectment suit, considering that the affected party was deprived of any recourse to the MTCC’s erroneous suspension of a summary proceeding. Retired Chief Justice Artemio V. Panganiban eloquently explained the procedural void in this wise:

Indisputably, the appealed [suspension] order is interlocutory, for “it does not dispose of the case but leaves something else to be done by the trial court on the merits of the case.” It is axiomatic that an interlocutory order cannot be challenged by an appeal. Thus, it has been held that “the proper remedy in such cases is an ordinary appeal from an adverse judgment on the merits incorporating in said appeal the grounds for assailing the interlocutory order. Allowing appeals from interlocutory orders would result in the ‘sorry spectacle’ of a case being subject of a counterproductive ping-pong to and from the appellate court as often as a trial court is perceived to have made an error in any of its interlocutory rulings. However, where the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford adequate and expeditious relief, the Court may allow certiorari as a mode of redress.”

Clearly, private respondent cannot appeal the order, being interlocutory. But neither can it file a petition for certiorari, because ejectment suits fall under the Revised Rules on Summary Procedure, Section 19(g) of which considers petitions for certiorari prohibited pleadings:

x x x                            x x x                            x x x

Based on the foregoing, private respondent was literally caught “between Scylla and Charybdis” in the procedural void observed by the Court of Appeals and the RTC. Under these extraordinary circumstances, the Court is constrained to provide it with a remedy consistent with the objective of speedy resolution of cases.

As correctly held by Respondent Court of Appeals, “the purpose of the Rules on Summary Procedure is ‘to achieve an expeditious and inexpensive determination of cases without regard to technical rules.’ (Section 36, Chapter III, BP Blg. 129)” Pursuant to this objective, the Rules prohibit petitions for certiorari, like a number of other pleadings, in order to prevent unnecessary delays and to expedite the disposition of cases. In this case, however, private respondent challenged the MTCC order delaying the ejectment suit, precisely to avoid the mischief envisioned by the Rules.

Thus, this Court holds that in situations wherein a summary proceeding is suspended indefinitely, a petition for certiorari alleging grave abuse of discretion may be allowed. Because of the extraordinary circumstances in this case, a petition for certiorari, in fact, gives spirit and life to the Rules on Summary Procedure. A contrary ruling would unduly delay the disposition of the case and negate the rationale of the said Rules.[59] (Emphasis supplied.)

Contrary to the assertion of respondent Sunvar, the factual circumstances in these two cases are not comparable with respondents’ situation, and our rulings therein are inapplicable to its cause of action in the present suit. As this Court explained in Bayog, the general rule is that no special civil action for certiorari may be filed with a superior court from cases covered by the Revised Rules on Summary Procedure. Respondent Sunvar filed a certiorari Petition in an ejectment suit pending before the MeTC. Worse, the subject matter of the Petition was the denial of respondent’s Motion to Dismiss, which was necessarily an interlocutory order, which is generally not the subject of an appeal. No circumstances similar to the situation of the agricultural tenant-lessee in Bayog are present to support the relaxation of the general rule in the instant case. Respondent cannot claim to have been deprived of reasonable opportunities to argue its case before a summary judicial proceeding.

Moreover, there exists no procedural void akin to that in Go v. Court of Appeals that would justify respondent’s resort to a certiorari Petition before the RTC. When confronted with the MeTC’s adverse denial of its Motion to Dismiss in the ejectment case, the expeditious and proper remedy for respondent should have been to proceed with the summary hearings and to file its answer. Indeed, its resort to acertiorari Petition in the RTC over an interlocutory order in a summary ejectment proceeding was not only prohibited. The certiorari Petition was already a superfluity on account of respondent’s having already taken advantage of a speedy and available remedy by filing an Answer with the MeTC.

Respondent Sunvar failed to substantiate its claim of extraordinary circumstances that would constrain this Court to apply the exceptions obtaining in Bayog and Go. The Court hesitates to liberally dispense the benefits of these two judicial precedents to litigants in summary proceedings, lest these exceptions be regularly abused and freely availed of to defeat the very goal of an expeditious and inexpensive determination of an unlawful detainer suit. If the Court were to relax the interpretation of the prohibition against the filing of certiorari petitions under the Revised Rules on Summary Procedure, the RTCs may be inundated with similar prayers from adversely affected parties questioning every order of the lower court and completely dispensing with the goal of summary proceedings in forcible entry or unlawful detainer suits.

x x x."

Three modes of appeal from decisions of the RTC - G.R. No. 194880

G.R. No. 194880

"x x x.

Respondent Sunvar argued that petitioners’ resort to a Rule 45 Petition for Review on Certiorari before this Court is an improper mode of review of the assailed RTC Decision. Allegedly, petitioners should have availed themselves of a Rule 65 Petition instead, since the RTC Decision was an order of dismissal of the Complaint, from which no appeal can be taken except by a certiorari petition.

The Court is unconvinced of the arguments of respondent Sunvar and holds that the resort by petitioners to the present Rule 45 Petition is perfectly within the bounds of our procedural rules.

As respondent Sunvar explained, no appeal may be taken from an order of the RTC dismissing an action without prejudice,[45] but the aggrieved party may file a certiorari petition under Rule 65.[46]Nevertheless, the Rules do not prohibit any of the parties from filing a Rule 45 Petition with this Court, in case only questions of law are raised or involved.[47] This latter situation was one that petitioners found themselves in when they filed the instant Petition to raise only questions of law.

In Republic v. Malabanan,[48] the Court clarified the three modes of appeal from decisions of the RTC, to wit: (1) by ordinary appeal or appeal by writ of error under Rule 41, whereby judgment was rendered in a civil or criminal action by the RTC in the exercise of its original jurisdiction; (2) by a petition for review under Rule 42, whereby judgment was rendered by the RTC in the exercise of its appellate jurisdiction; and (3) by a petition for review on certiorari before the Supreme Court under Rule 45. “The first mode of appeal is taken to the [Court of Appeals] on questions of fact or mixed questions of fact and law. The second mode of appeal is brought to the CA on questions of fact, of law, or mixed questions of fact and law. The third mode of appeal is elevated to the Supreme Court only on questions of law.”[49] (Emphasis supplied.)

There is a question of law when the issue does not call for an examination of the probative value of the evidence presented or of the truth or falsehood of the facts being admitted, and the doubt concerns the correct application of law and jurisprudence on the matter.[50] The resolution of the issue must rest solely on what the law provides on the given set of circumstances.[51]

In the instant case, petitioners raise only questions of law with respect to the jurisdiction of the RTC to entertain a certiorari petition filed against the interlocutory order of the MeTC in an unlawful detainer suit. At issue in the present case is the correct application of the Rules on Summary Procedure; or, more specifically, whether the RTC violated the Rules when it took cognizance and granted the certioraripetition against the denial by the MeTC of the Motion to Dismiss filed by respondent Sunvar. This is clearly a question of law that involves the proper interpretation of the Rules on Summary Procedure. Therefore, the instant Rule 45 Petition has been properly lodged with this Court.

x x x."

Requirements of Section 9 of R.A. 7279 which lays down the order of priority in the acquisition through expropriation of lands for socialized housing. - G.R. No. 187604

G.R. No. 187604

"x x x.

 

          Two.  The CA correctly ruled that the City failed to show that it complied with the requirements of Section 9 of R.A. 7279 which lays down the order of priority in the acquisition through expropriation of lands for socialized housing.  This section provides:

            Section 9. Priorities in the acquisition of Land.—Lands for socialized housing shall be acquired in the following order:

(a)        Those owned by the Government or any of its subdivisions, instrumentalities, or agencies, including government-owned or controlled corporations and their subsidiaries;

(b)        Alienable lands of the public domain;

(c)        Unregistered or abandoned and idle lands;

(d)       Those within the declared Areas for Priority Development, Zonal Improvement Program sites, and Slum Improvement and Resettlement Program sites which have not yet been acquired;

(e)        Bagong Lipunan Improvement of Sites and Services or BLISS sites which have not yet been acquired; and

(f)        Privately-owned lands.

Where on-site development is found more practicable and advantageous to the beneficiaries, the priorities mentioned in this section shall not apply.  The local government units shall give budgetary priority to on-site development of government lands.  (Emphasis supplied)

          The City of course argues that it did not have to observe the order of priority provided above in acquiring lots for socialized housing since it found on-site development to be more practicable and advantageous to the beneficiaries who were these lots’ long-time occupants.  But the problem remains. The City did not adduce evidence that this was so.

          Besides, Section 10 of R.A. 7279 also prefers the acquisition of private property by “negotiated sale” over the filing of an expropriation suit.  It provides that such suit may be resorted to only when the other modes of acquisitions have been exhausted.  Thus:

Section 10. Modes of Land Acquisition.—The modes of acquiring land for purposes of this Act shall include, among others, community mortgage, land swapping, land assembly or consolidation, land banking, donation to the Government, joint-venture agreement, negotiated purchase, and expropriation: Provided, however, That expropriation shall be resorted to only when other modes of acquisition have been exhausted; Provided, further, That where expropriation is resorted to, parcels of land owned by small property owners shall be exempted for purposes of this Act.  x x x (Emphasis supplied)

          There is a sensible reason for the above.  Litigation is costly and protracted.  The government should also lead in avoiding litigations and overburdening its courts.

          Indeed, the Court has held that when the property owner rejects the offer but hints for a better price, the government should renegotiate by calling the property owner to a conference.[12]  The government must exhaust all reasonable efforts to obtain by agreement the land it desires.  Its failure to comply will warrant the dismissal of the complaint.  Article 35 of the Rules and Regulations Implementing the Local Government Code provides for this procedure.  Thus:   

            Article 35. Offer to Buy and Contract of Sale—(a) The offer to buy private property for public use or purpose shall be in writing.  It shall specify the property sought to be acquired, the reasons for its acquisition, and the price offered.

            x x x x

            (c)        If the owner or owners are willing to sell their property but at a price higher than that offered to them, the local chief executive shall call them to a conference for the purpose of reaching an agreement on the selling price.  The chairman of the appropriation or finance committee of the sanggunian, or in his absence, any member of the sanggunian duly chosen as its representative, shall participate in the conference. When an agreement is reached by the parties, a contract of sale shall be drawn and executed.

          Here, the City of Manila initially offered P1,500.00 per sq m to the owners for their lots.  But after the latter rejected the offer, claiming that the offered price was even lower than their current zonal value, the City did not bother to renegotiate or improve its offer.  The intent of the law is for the State or the local government to make a reasonable offer in good faith, not merely a pro forma offer to acquire the property.[13] 

          The Court cannot treat the requirements of Sections 9 and 10 of R.A. 7279 lightly.  It held in Estate or Heirs of the Late Ex-Justice Jose B.L. Reyes v. City of Manila,[14] that these requirements are strict limitations on the local government’s exercise of the power of eminent domain.  They are the only safeguards of property owners against the exercise of that power.  The burden is on the local government to prove that it satisfied the requirements mentioned or that they do not apply in the particular case.[15]

x x x."

The disciplining authority should not appeal the reversal of its decision - G.R. No. 174297

G.R. No. 174297

"x x x.

         The threshold issue for resolution is whether or not petitioner has legal standing to file the instant petition for review on certiorari assailing the CA ruling which reversed petitioner's decision.

        We find that petitioner has no legal standing to file this petition.

         In National Appellate Board of the National Police Commission (NAPOLCOM) v. Mamauag[28] (Mamauag), citing Mathay, Jr, v. Court of Appeals,[29] we ruled that the disciplining authority should not appeal the reversal of its decision and made the following ratiocination:

            RA 6975 itself does not authorize a private complainant to appeal a decision of the disciplining authority. Sections 43 and 45 of RA 6975 authorize “either party” to appeal in the instances that the law allows appeal. One party is the PNP member-respondent when the disciplining authority imposes the penalty of demotion or dismissal from the service. The other party is the government when the disciplining authority imposes the penalty of demotion but the government believes that dismissal from the service is the proper penalty.

            However, the government party that can appeal is not the disciplining authority or tribunal which previously heard the case and imposed the penalty of demotion or dismissal from the service. The government party appealing must be the one that is prosecuting the administrative case against the respondent. Otherwise, an anomalous situation will result where the disciplining authority or tribunal hearing the case, instead of being impartial and detached, becomes an active participant in prosecuting the respondent. Thus, in Mathay, Jr. v. Court of Appeals, decided after Dacoycoy, the Court declared:

            To be sure when the resolutions of the Civil Service Commission were brought to the Court of Appeals, the Civil Service Commission was included only as a nominal party. As a quasi-judicial body, the Civil Service Commission can be likened to a judge who should "detach himself from cases where his decision is appealed to a higher court for review."

            In instituting G.R. No. 126354, the Civil Service Commission dangerously departed from its role as adjudicator and became an advocate. Its mandated function is to "hear and decide administrative cases instituted by or brought before it directly or on appeal, including contested appointments and to review decisions and actions of its offices and agencies," not to litigate.[30] (Emphasis supplied.)

         In Office of the Ombudsman v. Sison,[31]  where the issue of whether the Ombudsman, which had rendered the decision pursuant to its administrative authority over public officers and employees, has the legal interest to intervene in the case where its decision was reversed on appeal, we ruled that it is not the proper party to intervene applying the above-quoted disquisition we made in Mamauag. We further stated that:

            Clearly, the Office of the Ombudsman is not an appropriate party to intervene in the instant case. It must remain partial and detached. More importantly, it must be mindful of its role as an adjudicator, not an advocate.

            It is an established doctrine that judges should detach themselves from cases where their decisions are appealed to a higher court for review. The raison d'etre for such a doctrine is the fact that judges are not active combatants in such proceeding and must leave the opposing parties to contend their individual positions and the appellate court to decide the issues without the judges' active participation.  When judges actively participate in the appeal of their judgment, they, in a way, cease to be judicial and have become adversarial instead.

            In Pleyto v. Philippine National Police Criminal Investigation and Detection Group (PNP-CIDG), the Court applied this doctrine when it held that the CA erred in granting the Motion to Intervene filed by the Office of the Ombudsman, to wit:

           The court or the quasi-judicial agency must be detached and impartial, not only when hearing and resolving the case before it, but even when its judgment is brought on appeal before a higher court. The judge of a court or the officer of a quasi-judicial agency must keep in mind that he is an adjudicator who must settle the controversies between parties in accordance with the evidence and applicable laws, regulations and/or jurisprudence. His judgment should already clearly and completely state his findings of fact and law. There must be no more need for him to justify further his judgment when it is appealed before appellate courts. When the court judge or the quasi-judicial officer intervenes as a party in the appealed case, he inevitably forsakes his detachment and impartiality, and his interest in the case becomes personal since his objective now is no longer only to settle the controversy between the original parties (which he had already accomplished by rendering his judgment), but more significantly, to refute the appellant's assignment of errors, defend his judgment, and prevent it from being overturned on appeal.[32] (Emphasis supplied.)

In Office of the Ombudsman v. Magno,[33] we ruled that:

x x x    Every decision rendered by the Ombudsman in an administrative case may be affirmed, but may also be modified or reversed on appeal - this is the very essence of appeal. In case of modification or reversal of the decision of the Ombudsman on appeal, it is the parties who bear the consequences thereof, and the Ombudsman itself would only have to face the error/s in fact or law that it may have committed which resulted in the modification or reversal of its decision.[34]

         Clearly, the government party that can appeal is not the disciplining authority or tribunal which previously heard the case and imposed the penalty of dismissal from the service. The government party appealing must be one that is prosecuting the administrative case against the respondent. In this case, it is the PCSO, through its then General Manager Golpeo, which filed the administrative case against respondent for the latter's alleged act of dishonesty in falsifying the OR and sales invoice he submitted in the liquidation of his cash advance.  Thus, it is the PCSO which is deemed the prosecuting government party which can appeal the CA decision exonerating respondent of the administrative charge. It is the PCSO which would stand to suffer, since the CA decision also ordered respondent's reinstatement, thus, the former would be compelled to take back to its fold a perceived dishonest employee.  Notwithstanding, the PCSO did not file any petition assailing the CA decision.  In fact, the PCSO, through its Board of Directors, adopted and approved Board Resolution No. 415 on  August 30, 2006, to wit:

RESOLVED, that the Board of Directors of PCSO accept, as it hereby accepts, and to no longer appeal the Decisions of the Court of Appeals dated  17 May 2005 and 03 August 2006 reversing and setting aside the orders of the Ombudsman dismissing former PCSO Legal Department Manager Atty. Romeo A. Liggayu for Dishonesty and Grave Misconduct and Conduct  Prejudicial to the Interest of the Service, and ordering the payment of all the salaries and benefits due Atty. Liggayu from his suspension to the time of his attainment of his retirement age  and to restore him all retirement  benefits and privileges to which he is entitled, subject to the Civil Service Rules and Regulations, and the availability of funds and applicable accounting and auditing laws, rules and regulations.[35]

                                               

         Petitioner cites Philippine National Bank v. Garcia, Jr. (Garcia)[36] to show that it has legal interest to file this petition.  In that case, the PNB charged its employee, Ricardo V. Garcia, with gross neglect of duty in connection with the funds he had lost in the amount of P7 million. The PNB’s Administration Adjudication Office found him guilty as charged and imposed upon him the penalty of forced resignation.  On appeal, the Civil Service Commission (CSC) exonerated Garcia from the administrative charge against him.  The PNB filed a petition with the CA which dismissed the same, ruling that the only party adversely affected by the decision, namely the government employee, may appeal an administrative case. It held that a decision exonerating a respondent in an administrative case is final and unappealable. Consequently, the PNB filed a petition with us. In accordance with our ruling inCivil Service Commission v. Dacoycoy,[37]  we ruled that the PNB had the legal standing to appeal to the CA the CSC resolution exonerating Garcia.  We said that after all, PNB was the aggrieved party which complained of Garcia's acts of dishonesty. Should Garcia be finally exonerated, it might then be incumbent upon the PNB to take him back into its fold.  The PNB should, therefore, be allowed to appeal a decision that, in its view, hampered its right to select honest and trustworthy employees, so that it can protect and preserve its name as a premier banking institution in the country.

         PNB v. Garcia, Jr.[38]  is not on all fours with the present case. First, herein respondent was not exonerated of the administrative charge of dishonesty, gross misconduct and conduct prejudicial to the best interest of the  service, but was found guilty thereof by petitioner and was meted the penalty of dismissal. Thus, it was the respondent who filed the petition with the CA as the party aggrieved by petitioner's decision.  Second, the PCSO, which is supposedly the party aggrieved in the CA decision, did not file any petition, but it was the petitioner - the administrative agency - which rendered the decision reversed by the CA.  Third, PNB v. Garcia[39] must be read together with Mathay, Jr. v. CA[40] andNational Appellate Board of the National Police Commission v. Mamauag[41]  wherein we qualified our declaration in CSC v. Dacoycoy[42] which was  cited in PNB v. Garcia[43] that the government party that can appeal the decision in administrative cases must be the party prosecuting the case and not the disciplining authority or tribunal which heard the administrative case.

         Considering that petitioner has no legal interest or standing to appeal and seek the nullification of the CA decision exonerating respondent from the administrative charge of dishonesty, grave misconduct, and conduct prejudicial to the best interest of the service, we, therefore find no need to delve on the merits of this case.

x x x."

Article 283 of the Labor Code identifies closure or cessation of operation of the establishment as an authorized cause for terminating an employee. - G.R. No. 194795

G.R. No. 194795

"x x x.

Article 283 of the Labor Code provides:

Art. 283. Closure of establishment and reduction of personnel. — The employer may also terminate the employment of any employee due to the installation of labor saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or under taking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (¹/₂) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year.

Article 283 of the Labor Code identifies closure or cessation of operation of the establishment as an authorized cause for terminating an employee.  Similarly, the said provision mandates that employees who are laid off from work due to closures that are not due to business insolvency should be paid separation pay equivalent to one-month pay or to at least one-half month pay for every year of service, whichever is higher.  A fraction of at least six months shall be considered one whole year. 

Although business reverses or losses are recognized by law as an authorized cause, it is still essential that the alleged losses in the business operations be proven convincingly; otherwise, this ground for termination of employment would be susceptible to abuse by conniving employers, who might be merely feigning business losses or reverses in their business ventures in order to ease out employees.[16]

x x x."

Permissible job contracting or subcontracting vs. illegal “labor-only” contracting - G.R. No. 172349

G.R. No. 172349

"x x x.

Article 106 of the Labor Code explains the relations which may arise between an employer, a contractor, and the contractor’s employees, thus:

ART. 106. Contractor or subcontracting. − Whenever an employer enters into a contract with another person for the performance of the former’s work, the employees of the contractor and of the latter’s subcontractor, if any, shall be paid in accordance with the provisions of this Code.

In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him.

The Secretary of Labor and Employment may, by appropriate regulations, restrict or prohibit the contracting out of labor to protect the rights of workers established under the Code.  In so prohibiting or restricting, he may make appropriate distinctions between labor-only contracting and job contracting as well as differentiations within these types of contracting and determine who among the parties involved shall be considered the employer for purposes of this Code, to prevent any violation or circumvention of any provision of this Code.

There is labor-only contracting where the person supplying workers to an employer does not have substantial capital or investment in the form of tools, equipment, machineries, work premises, among others, and the workers recruited and placed by such person are performing activities which are directly related to the principal business of such employer.  In such cases, the person or intermediary shall be considered merely as an agent of the employer who shall be responsible to the workers in the same manner and extent as if the latter were directly employed by him.

In Sasan, Sr. v. National Labor Relations Commission 4^th Division,[41] the Court distinguished permissible job contracting or subcontracting from “labor-only” contracting, to wit:

Permissible job contracting or subcontracting refers to an arrangement whereby a principal agrees to put out or farm out to a contractor or subcontractor the performance or completion of a specific job, work or service within a definite or predetermined period, regardless of whether such job, work or service is to be performed or completed within or outside the premises of the principal.  A person is considered engaged in legitimate job contracting or subcontracting if the following conditions concur:

(a)    The contractor or subcontractor carries on a distinct and independent business and undertakes to perform the job, work or service on its own account and under its own responsibility according to its own manner and method, and free from the control and direction of the principal in all matters connected with the performance of the work except as to the results thereof;

(b) The contractor or subcontractor has substantial capital or investment; and

(c) The agreement between the principal and contractor or subcontractor assures the contractual employees entitlement to all labor and occupational safety and health standards, free exercise of the right to self-organization, security of tenure, and social and welfare benefits.

In contrast, labor-only contracting, a prohibited act, is an arrangement where the contractor or subcontractor merely recruits, supplies or places workers to perform a job, work or service for a principal.  In labor-only contracting, the following elements are present:

(a)     The contractor or subcontractor does not have substantial capital or investment to actually perform the job, work or service under its own account and responsibility; and

(b) The employees recruited, supplied or placed by such contractor or subcontractor are performing activities which are directly related to the main business of the principal.[42]

The test of independent contractorship is “whether one claiming to be an independent contractor has contracted to do the work according to his own methods and without being subject to the control of the employer, except only as to the results of the work.”[43]  In San Miguel Corporation v. Semillano,[44] the Court laid down the criteria in determining the existence of an independent and permissible contractor relationship, to wit:

 x x x [W]hether or not the contractor is carrying on an independent business; the nature and extent of the work; the skill required; the term and duration of the relationship; the right to assign the performance of a specified piece of work; the control and supervision of the work to another; the employer’s power with respect to the hiring, firing and payment of the contractor’s workers; the control of the premises; the duty to supply the premises, tools, appliances, materials, and labor; and the mode, manner and terms of payment.[45]

   

Simply put, the totality of the facts and the surrounding circumstances of the case are to be considered. Each case must be determined by its own facts and all the features of the relationship are to be considered.[46]

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My ideal chief justice

My ideal chief justice

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I can name one justice who could have been the best candidate for chief justice. She could have been the first female chief justice of the Supreme Court of the Philippines and of the world, had not the vagaries of fate been unkind. Unfortunately, she has long retired and I can only regret that she can no longer be in the running.

I am referring to Justice Ameurfina Melencio Herrera, the chairman emeritus of the Philippine Judicial Academy.

Justice Ameurfina Melencio Herrera

I began my career as a lawyer in 1989 at the Supreme Court, straight out of law school and a month after passing the Bar. As judicial staff head of Justice Herrera, I was privileged to witness and be part of the day-to-day operations of the highest Court of the land. This was the Court of Chief Justice Marcelo Fernan made up of Justices Narvasa, Padilla, Paras, Gutierrez, Feliciano, Grino-Aquino, Cortes, Sarmiento, Regalado, Bidin, Medialdea, Gancayco, and the most junior justice then was Hilario Davide who would later become Chief Justice. 

This was the time when the Supreme Court was tagged as the “jewel” of then President Cory Aquino, the time when the Court was at its most credible having exhibited an independence which was more admired than criticized. 

Having clerked for someone like Justice Herrera, I cannot help but derive my criteria for the position of chief justice with her as my benchmark. She graduated from the U.P. College of Law as valedictorian, cum laude of Class ‘47. She topped the bar exams that same year.

A premium should be placed on one’s performance in law school and the bar exams as well. While these do not guarantee one’s performance as chief justice, having exceptional academic qualifications certainly puts the candidate in a cut above the rest. These qualifications could serve as a gauge of one’s knowledge of the law and as well as the possession of the basic skills required in oral and written communication. 

Justice Herrera practiced law for many years before she was appointed Regional Court Judge and later on Justice of the Court of Appeals. A candidate who has either practiced law or who has had experience sitting as a judge in Court would be better off than someone who has not practiced law at all. A candidate who possesses this criterion would necessarily have a wider perspective in terms of understanding legal processes and the many administrative problems that besiege the judiciary.

Unsullied reputation

The most important criterion - if there is anything that has set Justice Herrera apart from mortals like us - is her unsullied reputation as the epitome of industry and integrity. A justice of the Supreme Court should be painstakingly assiduous in seeing to it that work is done. He or she should have a passion for work and a determination to perform the task effectively and promptly. There should be results. 

I always recall with amusement and awe how Justice Herrera would continue reading documents and various papers even while she was on the road. There was a folding tray that was a permanent fixture in her car along with a box of pencils and markers.

Whenever we would ride together, we would both go over her drafts. She penned each and every decision attributed to her name. While we in her staff would prepare a draft, this would only serve as an outline of the facts and the applicable law. The drafts would come back to us with all her revisions in her own handwriting. She would go through each and every volume of the SCRA to check if our citations were correct.

At a time when the computer had just emerged, she was open-minded enough to explore its capabilities if only to complement her desire to get work done. I remember that we had to put all her cases in a database using FoxBASE in order that we will be able to monitor the progress of her case disposition. She hastened to learn how to use the computer so she could type her decisions herself. 

The future chief justice must not only have a passion for work. He must also possess an innovative spirit, open to explore all possibilities to improve case management and disposition.

Testing integrity

Then of course, integrity. I believe that this is the most difficult to ascertain. How does one know in absolute terms whether a candidate has it? It is something one does not write in one’s biodata. Any person who would do so would cause the reader to suspect that that it is not the case.

Integrity is “what someone does when no one is looking.” This is where public perception comes in. One’s reputation for honesty and integrity is a judgment made by others based on certain acts. My prototype, Justice Herrera, was widely known to possess this virtue as history will tell.

She had a reputation for being very strict. She was media-shy and was not inclined to be interviewed. Yet she was well-loved by the employees of the Court. They knew her to be a no- nonsense jurist but one that they could approach if problems arose. Despite her stern demeanour, she was able to inspire all of us who worked at the Court. Everyone felt that it was a privilege to have worked with her. 

These are the leadership qualities which I believe a future chief justice should have. The ability to inspire others --- the employees of the Court and his colleagues most especially -- to be the best that they can be. He or she must be able to unite everyone towards working for the common good, not only of the Court but of the country as well.

In truth, we can never really know the secrets of men’s hearts. At best, choosing a chief justice is a leap of faith.

Whether he or she would be a good chief justice can only be a probability at the outset. It is only after the trials come, or the when the battle is won or lost, that there will emerge a good or a bad chief justice. - Rappler.com

(The author is president of the U.P. Women Lawyers Circle. These are excerpts from a talk she delivered before the Integrated Bar of the Philippines forum, “The Search for the Next CJ: Defining the Best Candidate for the Job,” on 16 July 2012.)

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