SECOND DIVISION

[G.R. No. 192514. April 18, 2012.]

D.M. CONSUNJI, INC. and/or DAVID M. CONSUNJI , petitioners, vs .

ESTELITO L. JAMIN , respondent.

DECISION

BRION , J : p

We resolve the present appeal 1 from the decision 2 dated February 26, 2010 and
the resolution 3 dated June 3, 2010 of the Court of Appeals (CA) in CA-G.R. SP No. 100099.
The Antecedents
On December 17, 1968, petitioner D.M. Consunji, Inc. (DMCI), a construction
company, hired respondent Estelito L. Jamin as a laborer. Sometime in 1975, Jamin
became a helper carpenter. Since his initial hiring, Jamin's employment contract had been
renewed a number of times. 4 On March 20, 1999, his work at DMCI was terminated due to
the completion of the SM Manila project. This termination marked the end of his
employment with DMCI as he was not rehired again.
On April 5, 1999, Jamin led a complaint 5 for illegal dismissal, with several money
claims (including attorney's fees), against DMCI and its President/General Manager, David
M. Consunji. Jamin alleged that DMCI terminated his employment without a just and
authorized cause at a time when he was already 55 years old and had no independent
source of livelihood. He claimed that he rendered service to DMCI continuously for almost
31 years. In addition to the schedule of projects (where he was assigned) submitted by
DMCI to the labor arbiter, 6 he alleged that he worked for three other DMCI projects: Twin
Towers, Ritz Towers, from July 29, 1980 to June 12, 1982; New Istana Project, B.S.B.
Brunei, from June 23, 1982 to February 16, 1984; and New Istana Project, B.S.B. Brunei,
from January 24, 1986 to May 25, 1986. cASIED

DMCI denied liability. It argued that it hired Jamin on a project-to-project basis, from
the start of his engagement in 1968 until the completion of its SM Manila project on March
20, 1999 where Jamin last worked. With the completion of the project, it terminated
Jamin's employment. It alleged that it submitted a report to the Department of Labor and
Employment (DOLE) everytime it terminated Jamin's services.
The Compulsory Arbitration Rulings
In a decision dated May 27, 2002, 7 Labor Arbiter Francisco A. Robles dismissed the
complaint for lack of merit. He sustained DMCI's position that Jamin was a project
employee whose services had been terminated due to the completion of the project where
he was assigned. The labor arbiter added that everytime DMCI rehired Jamin, it entered
into a contract of employment with him. Moreover, upon completion of the phase of the
project for which Jamin was hired or upon completion of the project itself, the company
served a notice of termination to him and a termination report to the DOLE Regional O ce.
The labor arbiter also noted that Jamin had to le an application if he wanted to be re-
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 hired.
On appeal by Jamin, the National Labor Relations Commission (NLRC), in its
decision of April 18, 2007, 8 dismissed the appeal and a rmed the labor arbiter's nding
that Jamin was a project employee. Jamin moved for reconsideration, but the NLRC denied
the motion in a resolution dated May 30, 2007. 9 Jamin sought relief from the CA through a
petition for certiorari under Rule 65 of the Rules of Court.
The CA Decision
On February 26, 2010, the CA Special Fourth Division rendered the disputed decision
10 reversing the compulsory arbitration rulings. It held that Jamin was a regular
employee . It based its conclusion on: (1) Jamin's repeated and successive rehiring in
DMCI's various projects; and (2) the nature of his work in the projects — he was
performing activities necessary or desirable in DMCI's construction business. Invoking the
Court's ruling in an earlier case, 11 the CA declared that the pattern of Jamin's rehiring and
the recurring need for his services are su cient evidence of the necessity and
indispensability of such services to DMCI's business or trade, a key indicator of regular
employment. It opined that although Jamin started as a project employee, the
circumstances of his employment made it regular or, at the very least, has ripened into a
regular employment.
The CA considered the project employment contracts Jamin entered into with DMCI
for almost 31 years not de nitive of his actual status in the company. It stressed that the
existence of such contracts is not always conclusive of a worker's employment status as
this Court explained in Liganza v. RBL Shipyard Corporation, et al. 12 It found added
support from Integrated Contractor and Plumbing Works, Inc. v. NLRC, 13 where the Court
said that while there were several employment contracts between the worker and the
employer, in all of them, the worker performed tasks which were usually necessary or
desirable in the usual business or trade of the employer and, a review of the worker's
assignments showed that he belonged to a work pool, making his employment regular.
Contrary to DMCI's submission and the labor arbiter's ndings, the CA noted that
DMCI failed to submit a report to the DOLE Regional O ce everytime Jamin's employment
was terminated, as required by DOLE Policy Instructions No. 20. The CA opined that
DMCI's failure to submit the reports to the DOLE is an indication that Jamin was not a
project employee. It further noted that DOLE Department Order No. 19, Series of 1993,
which superseded DOLE Policy Instructions No. 20, provides that the termination report is
one of the indicators of project employment. 14 cSaATC

Having found Jamin to be a regular employee, the CA declared his dismissal illegal
as it was without a valid cause and without due process. It found that DMCI failed to
provide Jamin the required notice before he was dismissed. Accordingly, the CA ordered
Jamin's immediate reinstatement with backwages, and without loss of seniority rights and
other benefits.
DMCI moved for reconsideration, but the CA denied the motion in its resolution of
June 3, 2010. 15 DMCI is now before the Court through a petition for review on certiorari
under Rule 45 of the Rules of Court. 16
The Petition
DMCI seeks a reversal of the CA rulings on the ground that the appellate court
committed a grave error in annulling the decisions of the labor arbiter and the NLRC. It
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 presents the following arguments:
1. The CA misapplied the phrase "usually necessary or desirable in the usual
business or trade of the employer" when it considered Jamin a regular employee. The
de nition of a regular employee under Article 280 of the Labor Code does not apply to
project employment or "employment which has been xed for a speci c project," as
interpreted by the Supreme Court in Fernandez v. National Labor Relations Commission 17
and D.M. Consunji, Inc. v. NLRC. 18 It maintains the same project employment methodology
in its business operations and it cannot understand why a different ruling or treatment
would be handed down in the present case.
2. There is no work pool in DMCI's roster of project employees. The CA erred in
insinuating that Jamin belonged to a work pool when it cited Integrated Contractor and
Plumbing Works, Inc. ruling. 19 At any rate, Jamin presented no evidence to prove his
membership in any work pool at DMCI.
3. The CA misinterpreted the rules requiring the submission of termination of
employment reports to the DOLE. While the report is an indicator of project employment,
as noted by the CA, it is only one of several indicators under the rules. 20 In any event, the
CA penalized DMCI for a few lapses in its submission of reports to the DOLE with a "very
rigid application of the rule despite the almost unanimous proofs surrounding the
circumstances of private respondent being a project employee as shown by petitioner's
documentary evidence." 21 AcHaTE

4. The CA erred in holding that Jamin was dismissed without due process for its
failure to serve him notice prior to the termination of his employment. As Jamin was not
dismissed for cause, there was no need to furnish him a written notice of the grounds for
the dismissal and neither is there a need for a hearing. When there is no more job for Jamin
because of the completion of the project, DMCI, under the law, has the right to terminate
his employment without incurring any liability. Pursuant to the rules implementing the
Labor Code, 22 if the termination is brought about by the completion of the contract or
phase thereof, no prior notice is required.
Finally, DMCI objects to the CA's reversal of the ndings of the labor arbiter and the
NLRC in the absence of a showing that the labor authorities committed a grave abuse of
discretion or that evidence had been disregarded or that their rulings had been arrived at
arbitrarily.
The Case for Jamin
In his Comment (to the Petition), 23 Jamin prays that the petition be denied for
having been filed out of time and for lack of merit.
He claims, in support of his plea for the petition's outright dismissal, that DMCI
received a copy of the CA decision (dated February 26, 2010) on March 4, 2010, as stated
by DMCI itself in its motion for reconsideration of the decision. 24 Since DMCI led the
motion with the CA on March 22, 2010, it is obvious, Jamin stresses, that the motion was
led three days beyond the 15-day reglementary period, the last day of which fell on March
19, 2010. He maintains that for this reason, the CA's February 26, 2010 decision had
become nal and executory, as he argued before the CA in his Comment and Opposition
(to DMCI's Motion for Reconsideration). 25
On the merits of the case, Jamin submits that the CA committed no error in
nullifying the rulings of the labor arbiter and the NLRC. He contends that DMCI misread this
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 Court's rulings in Fernandez v. National Labor Relations Commission, et al. 26 and D.M.
Consunji, Inc. v. NLRC, 27 cited to support its position that Jamin was a project employee.
aSIAHC

Jamin argues that in Fernandez, the Court explained that the proviso in the second
paragraph of Article 280 of the Labor Code relates only to casual employees who shall
be considered regular employees if they have rendered at least one year of service,
whether such service is continuous or broken. He further argues that in Fernandez, the
Court held that inasmuch as the documentary evidence clearly showed gaps of a month or
months between the hiring of Ricardo Fernandez in the numerous projects where he was
assigned, it was the Court's conclusion that Fernandez had not continuously worked for
the company but only intermittently as he was hired solely for speci c projects. 28 Also, in
Fernandez, the Court a rmed its rulings in earlier cases that "the failure of the employer to
report to the [nearest] employment office the termination of workers everytime a project is
completed proves that the employees are not project employees." 29
Jamin further explains that in the D.M. Consunji, Inc. case, the company deliberately
omitted portions of the Court's ruling stating that the complainants were not claiming that
they were regular employees; rather, they were questioning the termination of their
employment before the completion of the project at the Cebu Super Block, without just
cause and due process. 30
In the matter of termination reports to the DOLE, Jamin disputes DMCI's submission
that it committed only few lapses in the reportorial requirement. He maintains that even
the NLRC noted that there were no termination reports with the DOLE Regional O ce after
every completion of a phase of work, although the NLRC considered that the report is
required only for statistical purposes. He, therefore, contends that the CA committed no
error in holding that DMCI's failure to submit reports to the DOLE was an indication that he
was not a project employee.
Finally, Jamin argues that as a regular employee of DMCI for almost 31 years, the
termination of his employment was without just cause and due process.
The Court's Ruling
The procedural issue
Was DMCI's appeal led out of time, as Jamin claims, and should have been
dismissed outright? The records support Jamin's submission on the issue. DcAaSI

DMCI received its copy of the February 26, 2010 CA decision on March 4, 2010 (a
Thursday), as indicated in its motion for reconsideration of the decision itself, 31 not on
March 5, 2010 (a Friday), as stated in the present petition. 32 The deadline for the ling of
the motion for reconsideration was on March 19, 2010 (15 days from receipt of copy of
the decision), but it was led only on March 22, 2010 or three days late. Clearly, the
motion for reconsideration was led out of time, thereby rendering the CA
decision final and executory .
Necessarily, DMCI's petition for review on certiorari is also late as it had only fteen
(15) days from notice of the CA decision to le the petition or the denial of its motion for
reconsideration led in due time. 33 The reckoning date is March 4, 2010, since DMCI's
motion for reconsideration was not led in due time. We see no point in exercising
liberality and disregarding the late ling as we did in Orozco v. Fifth Division of the Court of
Appeals, 34 where we ruled that "[t]echnicality should not be allowed to stand in the way of
equitably and completely resolving the rights and obligations of the parties." The petition
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 lacks merit for its failure to show that the CA committed any reversible error or
grave abuse of discretion when it reversed the ndings of the labor arbiter and
the NLRC .
As earlier mentioned, Jamin worked for DMCI for almost 31 years, initially as a
laborer and, for the most part, as a carpenter. Through all those years, DMCI treated him as
a project employee, so that he never obtained tenure. On the surface and at rst glance,
DMCI appears to be correct. Jamin entered into a contract of employment (actually an
appointment paper to which he signified his conformity) with DMCI either as a field worker,
a temporary worker, a casual employee, or a project employee everytime DMCI needed his
services and a termination of employment paper was served on him upon completion of
every project or phase of the project where he worked. 35 DMCI would then submit
termination of employment reports to the DOLE, containing the names of a number of
employees including Jamin. 36 The NLRC and the CA would later on say, however, that
DMCI failed to submit termination reports to the DOLE.
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 ndings 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. aESIDH

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
speci c 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 nd 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
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 — 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. ICHAaT

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 in D.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 xed for a speci c 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 speci c 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 speci c 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. DTAHSI

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
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 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 nding of Mr. Consunji's involvement
in Jamin's dismissal, we deem it proper to absolve him of liability in this case.
As a nal point, it is well to reiterate a cautionary statement we made in Maraguinot,
51 thus: cdasia2005

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 accompli, i.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 led late and for lack of any
reversible error. We see no point in extending any liberality by disregarding the late ling as
the petition lacks merit.
WHEREFORE , premises considered, the petition is hereby DENIED for late ling
and for lack of merit. The decision dated February 26, 2010 and the resolution dated June
3, 2010 of the Court of Appeals are AFFIRMED . Petitioner David M. Consunji is absolved
of liability in this case.
SO ORDERED .
Carpio, Peralta, * Perez and Sereno, JJ., concur.

Footnotes
* Additional Member vice Justice Bienvenido L. Reyes per Raffle dated March 28, 2012.
1. Rollo, pp. 3-23; filed pursuant to Rule 45 of the Rules of Court.
2. Id. at 26-37; penned by Associate Justice Stephen C. Cruz, and concurred in by former
Associate Justice Bienvenido L. Reyes (now a Supreme Court Associate Justice) and
Associate Justice Jaapar B. Dimaampao.
3. Id. at 46-47.
4. Supra note 2, at 2-31; Schedule of DMCI projects where Jamin worked.
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 5. Rollo, pp. 49-50.
6. Id. at 60.

7. Id. at 206-217.
8. Id. at 249-253.
9. Id. at 264.
10. Supra note 2.
11. Baguio Country Club Corporation v. NLRC, G.R. No. 71664, February 28, 1992, 206 SCRA
643.
12. G.R. No. 159862, October 17, 2006, 504 SCRA 678.

13. 503 Phil. 875 (2005).

14. Section 2.2 (e).
15. Supra note 3.
16. Supra note 1.
17. G.R. No. 106090, February 28, 1994, 230 SCRA 460.

18. 401 Phil. 635 (2000).

19. Supra note 13.
20. Supra note 14.
21. Supra note 1, at 16-17.

22. OMNIBUS RULES IMPLEMENTING THE LABOR CODE, Book VI, Rule I, Sec. 1 (d) (iii), last
paragraph, not Book V, Rule XXIII, Section 2 (c), as cited.
23. Rollo, pp. 328-348.

24. Id. at 38, paragraph 1.

25. Id. at 350-351.
26. Supra note 17.
27. Supra note 18.

28. Supra note 17, at 465.

29. Id. at 468.
30. Supra note 18, at 642.
31. Supra note 24.
32. Supra note 1, at 2.

33. RULES OF COURT, Rule 45, Section 1.

34. 497 Phil. 227 (2005), citing Buenaobra v. Lim King Guan, 465 Phil. 290 (2004).
35. Rollo, pp. 71-140.
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 36. Id. at 141-157.
37. Supra note 12, at 689.
38. Supra note 6.

39. Rollo, p. 171; Certification of Premium Payments, SSS Makati Branch.

40. Id. at 175-196; Jamin's Payslips for the New Istana Project.
41. Id. at 197-199; Payslips for New Istana Project (second phase).
42. Supra note 6.
43. 348 Phil. 580 (1998).

44. Supra note 12, at 689.

45. Ibid.
46. VICENTE B. FOZ, THE LABOR CODE OF THE PHILIPPINES and ITS IMPLEMENTING RULES
AND REGULATIONS, 7th Edition, 1979, pp. 134-135, but cited as Policy Instructions No.
20 (Series of 1977) in Raycor Aircontrol Systems, Inc. v. NLRC, 330 Phil. 306, 315 (1996).
47. Id., paragraph 4.
48. Rollo, pp. 141-147.
49. Id. at 243; DMCI's Answer to and/or Comment on the Appeal, p. 8.
50. Supra note 2, at 37.

51. Supra note 43 at 605.

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