G.R. No.

159371 July 29, 2013

D.M. CONSUNJI CORPORATION, Petitioner,

vs.
ROGELIO P. BELLO, Respondent.

DECISION

BERSAMIN, J.:

For the resignation of an employee to be a viable defense in an action for illegal

dismissal, an employer must prove that the resignation was voluntary, and its
evidence thereon must be clear, positive and convincing. The employer cannot
rely on the weakness of the employee's evidence.

The Case

We now review the decision promulgated on February 18, 2003,1 whereby the
Court of Appeals (CA) granted the petition for certiorari of respondent Rogelio P.
Bello, reversed and set aside the resolutions dated January 3, 20022 and February
26, 20023 of the National Labor Relations Commission (NLRC), and reinstated the
decision rendered on January 9, 2001 by the Executive Labor Arbiter (ELA)
declaring Bello to have been illegally dismissed and ordering petitioner D.M.
Consunji Corporation (DMCI) to reinstate him, and to pay him full backwages
reckoned from the time of his dismissal until his actual reinstatement.4

Antecedents

Bello brought a complaint for illegal dismissal and damages against DMCI and/or
Rachel Consunji. In his position paper, he claimed that DMCI had employed him as
a mason without any interruption from February 1, 1990 until October 10, 1997 at
an hourly rate of ₱25.081; that he had been a very diligent and devoted worker
and had served DMCI as best as he could and without any complaints; that he had
never violated any company rules; that his job as a mason had been necessary
and desirable in the usual business or trade of DMCI; that he had been diagnosed
to be suffering from pulmonary tuberculosis, thereby necessitating his leave of
absence; that upon his recovery, he had reported back to work, but DMCI had
refused to accept him and had instead handed to him a termination paper; that
he had been terminated due to "RSD" effective November 5, 1997; that he did not
know the meaning of "RSD" as the cause of his termination; that the cause had
not been explained to him; that he had not been given prior notice of his
termination; that he had not been paid separation pay as mandated by law; that
at that time of his dismissal, DMCI’s projects had not yet been completed; and
that even if he had been terminated due to an authorized cause, he should have
been given at least one month pay or at least one-half month pay for every year
of service he had rendered, whichever was higher.

In its position paper submitted on March 6, 2000,5 DMCI contended that Bello had
only been a project employee, as borne out by his contract of employment and
appointment papers; that after his termination from employment, it had
complied with the reportorial requirements of the Department of Labor and
Employment (DOLE) pursuant to the mandates of Policy Instruction No. 20, as
revised by Department Order No. 19, series of 1993; and that although his last
project employment contract had been set to expire on October 7, 1997, he had
tendered his voluntary resignation on October 4, 1997 for health reasons that had
rendered him incapable of performing his job, per his resignation letter.

On January 9, 2001, ELA Isabel G. Panganiban-Ortiguerra rendered a

decision,6 disposing thusly:

WHEREFORE, premises considered, judgment is hereby rendered declaring

respondent company DM Consunji, Inc., guilty of illegal dismissal and it is hereby
ordered to reinstate complainant to his former position without loss of seniority
rights and to pay him full backwages reckoned from the time of his dismissal up to
his actual reinstatement which as of this date is in the amount of ₱232,648,81.

SO ORDERED.

DMCI appealed to the NLRC, citing the following grounds, namely:

I. THE LABOR ARBITER A QUO GRAVELY ABUSED HER DISCRETION IN

HOLDING THAT COMPLAINANT IS A REGULAR EMPLOYEE NOT EVEN AS THIS
IS CONTRARY TO LAW, EVIDENCE AND JURISPRUDENCE.

II. THE LABOR ARBITER A QUO GRAVELY ABUSED HER DISCRETION IN

DECLARING COMPLAINANT’S TERMINATION AS ILLEGAL EVEN AS HE HAD
VOLUNTARILY RESIGNED
FROM HIS LAST PROJECT EMPLOYMENT.7

On January 3, 2002, the NLRC issued its resolution setting aside the decision of
ELA Panganiban-Ortiguerra, and dismissing Bello’s claims,8 viz:

Addressing the first issue on appeal, a cursory reading of the records indeed show
that contrary to the declaration of the Labor Arbiter that complainant’s years of
service was without any gaps and was continuous to warrant regularity of
employment, the same was not so. In fine what was clearly illustrated by
respondents in their appeal memorandum by way of matrix, there were
considerable and substantial gaps between complainant’s employment. In
addition, it is of judicial notice that respondent company, being one of the biggest
and well known construction company, as even admitted by the Executive Labor
Arbiter, cater to so many clients/projects. So much that it is not improbable that
complainant may be hired continuously one after the other in different projects
considering that he is a mason whose functions are more than highly needed in
construction. Even as it is, the matrix presented by respondents still showed
considerable gaps. The fact that sometimes complainant’s contract is extended
beyond approximated date of finish contract, do not in anyway (sic) readily make
his employment regular. For it is common among construction projects for a
certain phase of work to be extended, depending on varied factors such as
weather, availability of materials, whims and caprice of clients and many more. So
much so, it was error on the part of the Executive Labor Arbiter to take this
against respondents and pin it as another determining factor of regularity of
employment. Neither can it be said that as mason complainant’s function is
necessary and desirable to respondents business hence, he is a regular employee.
x x x we simply cannot close our eyes to the reality that complainant is a project
employee and that the case she is citing does not fit herein as it is akin to a square
peg being in a round hole. To top it all, records show that respondents have
faithfully complied with the provision of Policy Instruction No. 20 on project
employees.

Lastly, records do show that complainant executed a voluntary resignation. And

while there may indeed be a slight difference in the signature and handwriting,
this do not readily mean that complainant did not execute the same as was the
inclination of the Executive Labor Arbiter. For one, she has no expertise to
determine so. Secondly, and as was validly pointed out, complainant if indeed he
was coerced, cheated or shortchanged, would ordinarily almost immediately seek
redress. In the case at bar, he sat it out and waited two (2) years. Is this case, an
afterthought? We believe so.1âwphi1

ACCORDINGLY, finding merit in respondent’s appeal, the decision of the Executive

Labor Arbiter is hereby SET ASIDE and this case DISMISSED for want of merits
(sic).

SO ORDERED.

Bello moved for a reconsideration,9 but the NLRC denied his motion on February
26, 2002.10

Ruling of the CA

Bello then assailed the dismissal of his complaint via petition for
certiorari,11 averring that the NLRC committed grave abuse of discretion
amounting to lack of jurisdiction in upholding DMCI’s appeal, in setting aside the
decision of the ELA, and in dismissing his complaint and denying his motion for
reconsideration.

On February 18, 2003, the CA promulgated its assailed decision,12 finding Bello to
have acquired the status of a regular employee although he had started as a
project employee of DMCI by his having been employed as a mason who had
performed tasks that had been usually necessary and desirable in the business or
trade of DMCI continuously from February 1, 1990 to October 5, 1997; that his
repeated re-hiring and the continuing need for his services over a long span of
time had undeniably made him a regular employee; that DMCI’s compliance with
the reportorial requirements under Policy Instruction No. 20 (by which the project
employer was required to make a report to the Department of Labor and
Employment of every termination of its projects) could not preclude the
acquisition of tenurial security by the employee; that the cause of his dismissal
after he had acquired the status of a regular employee – the completion of the
phase of work – could not be considered as a valid cause under Article 282 of the
Labor Code; and that his supposedly voluntary resignation could not be accorded
faith after the ELA had concluded that the handwriting in the supposed
resignation letter was "undeniably different from that of complainant," a fact "not
rebutted by herein respondents."
DMCI sought the reconsideration of the decision, but the CA denied its motion on
July 24, 2003.13

Issues

Hence, DMCI appeals, presenting the following issues for our consideration and
resolution, to wit:

I. WHETHER OR NOT PRIVATE RESPONDENT WAS A REGULAR EMPLOYEE;

AND

II. WHETHER OR NOT PRIVATE RESPONDENT WAS DISMISSED OR

VOLUNTARILY RESIGNED.

Ruling of the Court

The petition for review lacks merit.

The provision that governs the first issue is Article 280 of the Labor Code, which is
quoted hereunder as to its relevant part, viz:

Article 280. 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 and desirable
to 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. (Emphasis supplied)

xxxx

A project employee is, therefore, one who is hired for a specific project or
undertaking, and the completion or termination of such project or undertaking
has been determined at the time of engagement of the employee.14 In the context
of the law, Bello was a project employee of DMCI at the beginning of their
employer-employee relationship. The project employment contract they then
entered into clearly gave notice to him at the time of his engagement about his
employment being for a specific project or phase of work. He was also thereby
notified of the duration of the project, and the determinable completion date of
the project.

However, the history of Bello’s appointment and employment showed that he

performed his tasks as a mason in DMCI’s various constructions projects, as the
following tabulation indicates, to wit:15

Duration of Actual
Project Cause Annexes
Employment Termination
SM Megamall 2-01-90 to 05-01-90 10-28-91 CPW 1 & 1-A
JMT 10-28-91 to 01-28-91 05-29-92 CPW 2 & 2-A
Renaissance 05-29-92 to 08-29-92 09-10-92 CPW 3 & 3-A
Bayview 09-11-92 to 12-11-92 06-15-93 CPW 4 &4-A
Golden Bay I 06-17-93 to 09-17-93 04-18-94 CPW 5 & 5-A
Golden Bay II 04-18-94 to 07-18-94 09-06-94 CPW 6& 6-A
ADC 09-07-94 to 10-07-94 02-09-96 CPW 7 & 7-A
ADC 02-10-96 to 03-10-96 10-01-96 CPW 8 & 8-A
ICEC 09-07-97 to 10-07-97 10-07-97 CPW 9 & 9-A

Based on the foregoing, we affirm the CA’s conclusion that Bello acquired in time
the status of a regular employee by virtue of his continuous work as a mason of
DMCI. The work of a mason like him – a skilled workman working with stone or
similar material16 – was really related to building or constructing, and was
undoubtedly a function necessary and desirable to the business or trade of one
engaged in the construction industry like DMCI. His being hired as a mason by
DMCI in not one, but several of its projects revealed his necessity and desirability
to its construction business.

It is settled that the extension of the employment of a project employee long

after the supposed project has been completed removes the employee from the
scope of a project employee and makes him a regular employee.17 In this regard,
the length of time of the employee’s service, while not a controlling determinant
of project employment, is a strong factor in determining whether he was hired for
a specific undertaking or in fact tasked to perform functions vital, necessary and
indispensable to the usual business or trade of the employer.18 On the other hand,
how DMCI chose to categorize the employment status of Bello was not decisive of
his employment status. What were of consequence in that respect were his actual
functions and the length of his stay with DMCI. Verily, the principal test for
determining whether an employee is a project employee, as distinguished from a
regular employee, is whether or not he is assigned to carry out a specific project
or undertaking, the duration and scope of which are specified at the time he is
engaged for the project.19

Still, DMCI contends that Bello’s services as a mason were deemed necessary and
desirable in its usual business only for the period of time it had taken it to
complete the project.

The contention may be correct if each engagement of Bello as a mason over the
span of eight years was to be treated separately. The contention cannot be
upheld, however, simply because his successive reengagement in order to
perform the same kind of work as a mason firmly manifested the necessity and
desirability of his work in DMCI’s usual business of construction.20

Lastly, DMCI claims that Bello voluntarily resigned from work. It presented his
supposed handwritten resignation letter to support the claim. However, Bello
denied having resigned, explaining that he had signed the letter because DMCI
had made him believe that the letter was for the purpose of extending his sick
leave.

In resolving the matter against DMCI, the CA relied on the conclusion by ELA
Panganiban-Ortiguerra that she could not give credence to the voluntary
resignation for health reasons in the face of Bello’s declaration that he had been
led to sign the letter to obtain the extension of his leave of absence due to illness,
and on her observation that "the handwriting in the supposed resignation letter is
undeniably different from that of complainant," something that she said DMCI
had not rebutted.21

The CA’s reliance on the conclusion and finding by ELA Panganiban-Ortiguerra was
warranted. Her observation that the handwriting in the resignation letter was
"undeniably different" from that of Bello could not be ignored or shunted aside
simply because she had no expertise to make such a determination, as the NLRC
tersely stated in its decision. To begin with, her supposed lack of expertise did not
appear in the records, rendering the NLRC's statement speculative and whimsical.
If we were now to outrightly discount her competence to make that observation,
we would disturb the time-honored practice of according respect to the findings
of the first-line trier of facts in order to prefer the speculative and whimsical
statement of an appellate forum like the NLRC. Yet, even had the letter been
actually signed by him, the voluntariness of the resignation could not be assumed
from such fact alone. His claim that he had been led to believe that the letter
would serve only as the means of extending his sick leave from work should have
alerted DMCI to the task of proving the voluntariness of the resignation. It was
obvious that, if his claim was true, then he did not fully comprehend the import of
the letter, rendering the resignation farcical. The doubt would then be justifiably
raised against the letter being at all intended to end his employment. Under the
circumstances, DMCI became burdened with the obligation to prove the due
execution and genuineness of the document as a letter of resignation.22

We reiterate that it is axiomatic in labor law that the employer who interposes
the defense of voluntary resignation of the employee in an illegal dismissal case
must prove by clear, positive and convincing evidence that the resignation was
voluntary; and that the employer cannot rely on the weakness of the defense of
the employee.23 The requirement rests on the need to resolve any doubt in favor
of the working man.

WHEREFORE, the Court AFFIRMS the decision promulgated on February 18, 2003;
and ORDERS petitioner to pay the costs of suit.

SO ORDERED.

LUCAS P. BERSAMIN
Associate Justice

WE CONCUR:

MARIA LOURDES P. A. SERENO

Chief Justice

TERESITA J. LEONARDO-DE CASTRO MARTIN S. VILLARAMA, JR.

Associate Justice Associate Justice
 BIENVENIDO L. REYES
Associate Justice

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the
conclusions in the above decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes
1
Rollo, pp. 167-176; penned by Associate Justice Josefina Guevara-Salonga
(retired), with the concurrence of Associate Justice Rodrigo V. Cosico
(retired) and Associate Justice Edgardo F. Sundiam (retired/deceased).
2
Id. at 134-139.
3
Id. at 144-146.
4
Id. at 81-89.
5
Id. at 30-39.
6
Supra note 4.
7
Rollo, p. 94.
8
Id. at 134-139.
9
Id. at 140-143.
10
Id. at 144-146.
11
Id. at 147-163.
12
Supra note 1.
13
Id. at 178.
14
Philippine National Construction Corporation v. NLRC, G.R. No. 85323,
June 20, 1989, 174 SCRA 191, 193; Uy v. National Labor Relations
Commission, G.R. No. 117983, September 6, 1996, 261 SCRA 505, 513.
15
Rollo, p. 85.
16
Websters Third New International Dictionary. 1993.
17
Tomas Lao Construction v. National Labor Relations Commission, G.R. No.
116781, September 5, 1997, 278 SCRA 716, 726, citing Phesco, Inc. v.
National Labor Relations Commission, G.R. Nos. 104444-49, December 27,
1994, 239 SCRA 446; Capitol Industrial Construction Groups v. NLRC, G.R.
No. 105359, April 22, 1993, 221 SCRA 469.
18
Id. at 726-727.
19
ALU-TUCP v. National Labor Relations Commission, G.R. No. 109902,
August 2, 1994, 234 SCRA 678, 685.
20
Samson v. National Labor Relations Commission, G.R. No. 113166,
February 1, 1996, 253 SCRA 112, 123.
21
Supra note 1.
22
Id.
23
Vicente v. Court of Appeals, G.R. No. 175988, August 24, 2007, 53 I SCRA
240, 250; Mobile Protective & Detective Agency v. Ompad, G.R. No.
159195, May 9, 2005,458 SCRA 308,323.