Steelweld Construction vs. Echano, G.R. No. 200986. September 29, 2021, First Division, Lazaro-Javier, J. [Case Digest]

 

Steelweld Construction vs. Echano,

G.R. No. 200986. September 29, 2021,

First Division, Lazaro-Javier, J.

Case Digest

 

Topics:

            Remedial:        On Motion for Reconsideration

            Substantive:     Project Employee

                                    Termination

                                    Abandonment

                                    Gross Negligence

Facts:

            Respondents sued petitioners Steelweld Construction and its President Joven Sta. Ana, and Architect Josephine Sta. Ana (petitioners), for illegal dismissal, underpayment and non-payment of wages, separation pay, holiday pay, 13th month pay, overtime pay, and moral and exemplary damages.

            Echano essentially alleged that sometime in 2006, petitioners hired him as carpenter for its construction projects. He was also given additional assignment as "bodegero" to safeguard the construction materials at petitioners' jobsite in Floraville Subdivision, Mayamot, Antipolo City. He was required to work from 8 o'clock in the morning until 2 o'clock in the morning of the next day, Mondays to Sundays. Petitioners also required him to report for work during holidays.

            Sometime in January 2009, he was diagnosed with tuberculosis. On February 7, 2009, petitioners ordered him to go on leave of absence, which he heeded. After completing his three (3) months of treatment, he reported back for work. But just after two (2) months, he was, this time, ordered to go on "sick leave" for another three (3) months, which he again heeded. After completing his second round of sick leave, he reported back for work on November 13, 2009. The first thing he did was present his medical certificate of fitness to work, but petitioners no longer took him back. For his part, Salazar claimed that sometime in 2005, petitioners hired him as a painter. His work schedule went from 8 o'clock in the morning until 5 o'clock in the afternoon, Mondays to Saturdays. From 2005 to December 4, 2009, petitioners asked him to work during the holidays, albeit without holiday pay. Petitioners never paid him his 13th month pay. On June 28, 2009, he and his co-workers wrote petitioners for their grievances. But petitioners simply ignored them. Then, on December 4, 2009, petitioners illegally terminated him.

            In response, petitioners countered that Steelweld is a corporation engaged in the construction business and respondents were its project employees. Respondents' employment got terminated because the projects where they were respectively assigned already got completed. They submitted in evidence the supposed employment contracts of Echano, Salazar, and Copillo, albeit the same did not bear their signatures.

            In the case of Echano, he was advised to rest for six (6) months after he contracted tuberculosis. But he never again reported back for work, thus, the company was constrained to terminate him for abandonment of work. With respect to Salazar, a notice of termination was sent to him on December 4, 2009 because the project he was working on, the Patio Rosario Townhomes, was already almost complete. Finally, in the case of Copillo, he got terminated because of gross and habitual neglect of duties. He was engaged to paint Unit 33 of the Patio Rosario Townhomes. In October 2009, they received a letter from the unit owner that Copillo used a wrong paint color on the living room. In his written explanation, Copillo admitted the mistake claiming though that it was unintentional. Copillo was served with another Notice to Explain dated November 12, 2009 on account of the numerous complaints they received regarding his poor performance. Eventually, the company decided to terminate his services.

            As for respondents' compensation and benefits, the same were paid in accordance with law, albeit they (petitioners) could not produce their payrolls and pay slips as these documents were washed out during typhoon Ondoy which hit Manila and Rizal on September 26-27, 2009.

            Labor arbiter dismissed the complaint for lack of merit. The labor arbiter found that Echano's termination was justified since he failed to report for work after the lapse of his six-month medical leave. Salazar's termination was also valid since the last project where he got assigned had already been completed. As for Copillo, he himself admitted the infraction levelled against him, hence, he was terminated for cause. NLRC found that respondents were regular employees, not project employees of Steelweld. The employment contracts presented by petitioners had no evidentiary weight since they were not even signed by the respondents. The absence of the employment contracts raised a serious question on whether respondents were properly informed at the onset of their employment status as project employees. NLRC held that respondents were illegally dismissed. Petitioners were unable to prove that Echano abandoned his work. No proof was presented either that the phase of the project where Salazar got assigned was already almost complete as of December 4, 2009. Lastly, Copillo's mistake in using a wrong paint on Unit 33 of Patio Rosario Townhomes did not amount to "gross" negligence since it was not habitual but just an isolated incident.

            Without filing a motion for reconsideration, petitioners went straight to the Court of Appeals via a petition for certiorari. They manifested that it was the negligence of their former lawyer which prevented them from seeking a reconsideration of the assailed resolution from the NLRC.

            Court of Appeals dismissed the petition outright for petitioners' failure to file a motion for reconsideration of the questioned resolution before the NLRC.

 

Issue 1:

            Whether Court of Appeals erred in dismissing the petition for petitioners' failure to file a motion for reconsideration of the questioned resolution before the NLRC.

 

Held:

            No; a motion for reconsideration is a condition sine qua non to the filing of a petition for certiorari under Rule 65 of the Rules of Court.

            A special civil action for certiorari under Rule 65 of the Rules of Court is an extraordinary remedy which can only be availed of when there is no appeal or any plain, speedy, or adequate remedy available in the ordinary course of law. It is settled that a motion for reconsideration is a plain, speedy, and adequate remedy which should be resorted to before one may avail of the extraordinary remedy of certiorari. In Audi AG v. Mejia, the Court stressed that it is an indispensable condition before an aggrieved party can resort to a special civil action for certiorari. The purpose is to afford the tribunal, board, or office an opportunity to ratify its own errors or mistakes before the extraordinary remedy of certiorari comes into play through judicial process. Thus, a party's omission or failure to file a motion for reconsideration before the NLRC is a fatal infirmity which warrants the outright dismissal of the special civil action for certiorari it may have prematurely filed.

            The Court, nonetheless, has declined from applying the rule rigidly in the following instances, viz.:

(a) Where the order is a patent nullity, as where the court a quo has no jurisdiction;

(b) Where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court;

(c) Where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable;

(d) Where, under the circumstances, a motion for reconsideration would be useless;

(e) Where petitioner was deprived of due process and there is extreme urgency for relief;

(f) Where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable;

(g) Where the proceedings in the lower court are a nullity for lack of due process

(h) Where the proceeding was ex parte or in which the petitioner had no opportunity to object; and

(i) Where the issue raised is one purely of law or where public interest is involved.

 

            As earlier stated, petitioners here fault their previous counsel who allegedly neglected to file a motion for reconsideration of the assailed NLRC resolution We are not persuaded. It is hornbook doctrine that the negligence of counsel binds the client. In Bejarasco, Jr. v. People, the Court underscored that even a counsel's mistake in the realm of procedural technique binds his or her client. For a counsel, once retained, holds the implied authority to do all acts necessary or, at least, incidental to the management of the suit in behalf of his or her client. As such, any act or omission by counsel within the scope of the authority is regarded, in the eyes of the law, as the act or omission of the client himself or herself. Otherwise, there would be no end to litigation since every defeated party would just have to claim neglect or mistake of counsel as ground to salvage his or her case.

 

 

Issue 2:

            Whether or not the petitioners were regular employees of Steelweld Construction.

 

Held:

            Yes; there is no showing that upon their engagement, respondents were informed that they would be assigned to a specific project or undertaking. Neither was it established that they were made aware of the duration and scope of such project or undertaking. In Inocentes, Jr. v. R. Syjuco Construction, Inc., the Court stressed that to ascertain whether employees were project employees, it is necessary to determine whether notice was given them at the time of hiring that they were being engaged just for a specific project.

            Notably, the only "pieces of evidence" adduced by petitioners here were the so-called employment contracts of respondents which incidentally did not even bear the signatures of these employees. As aptly found by the NLRC, these "unsigned employment contracts" cannot be given any probative weight.

            In this case, records fail to disclose that petitioners were engaged for a specific project and that they were duly informed of its duration and scope at the time that they were engaged.

            As for Ramon, respondents submitted his WTRs as primary proof of his alleged project employment status. While these WTRs do indicate Ramon's particular assignments for certain weeks starting from November 8, 2013 to May 27, 2015, they do not, however, indicate that he was particularly engaged by JCDC for each of the projects stated therein, and that the duration and scope thereof were made known to him at the time his services were engaged. At best, these records only show that he had worked for such projects. By and of themselves, they do not show that Ramon was made aware of his status as a project employee at the time of hiring, as well as of the period of his employment for a specific project or undertaking.

            Likewise, same as in Ramon's case, Ranil and Edwin's project employment contracts for their engagement were not even shown. These contracts would have shed light to what projects or undertakings they were engaged; but all the same, none were submitted. As case law holds, the absence of the employment contracts puts into serious question the issue of whether the employees were properly informed of their employment status as project employees at the time of their engagement, especially if there were no other evidence offered.

            Second. Petitioners did not report the termination of the supposed project employment (on account of project completion) to the Department of Labor and Employment (DOLE), in violation of Department Order No. 19. In Freyssinet Filipinas Corp. v. Lapuz, the Court explained that the failure on the part of the employer to file with the DOLE a termination report every time a project or its phase is completed is an indication that the workers are not project employees but regular ones.

            Third. It is undisputed that Steelweld is engaged in the construction business and respondents had been continuously employed with the company for many years as construction workers in its various projects: Echano for three (3) years, Salazar, four (4) years; and Copillo, eight (8) years. Their employment had not been interrupted ever since they got hired. Too, petitioners never required them to execute a new employment contract with the company each time they got assigned to a new project.

            Abandonment requires the deliberate and unjustified refusal of the employee to perform his employment responsibilities. Mere absence or failure to work, even after notice to return, is not tantamount to abandonment. To justify the dismissal of an employee on this ground, two (2) elements must concur, viz.: (a) the failure to report for work or absence without valid or justifiable reason; and (b) a clear intention to sever the employer-employee relationship which is manifested through the employee's overt acts. These elements, however, are conspicuously absent here. For apart from petitioners' self-serving allegation, there was no proof of any overt act on the part of Echano showing his intention to abandon his work. On the contrary, records reveal that Echano sought permission to return to work and even presented a fit to work medical certificate, but the company simply informed him that he should no longer report for work.

            In any event, even if it were true that Echano failed to report for work after his medical leave, there is no showing that petitioners sent the following notices to Echano, viz.: (1) first notice asking him to explain why he should not be declared to have abandoned his job; and (2) second notice to inform him of the company's decision to dismiss him on ground of abandonment. But the most telling of all is the complaint for illegal dismissal filed by Echano, et al. against petitioners. An employee who takes steps to protest his or her dismissal cannot logically be said to have abandoned his work.

            Finally, we go to Copillo's termination. Petitioners point that he got dismissed on December 12, 2009 due to, first – his negligence in using a wrong paint on Unit 33 of the Patio Rosario Townhomes; and second – there were other complaints against his poor performance.

            To warrant removal from employment on ground of negligence, the negligence must not only be gross but habitual. While Copillo admitted that he used a wrong paint on Unit 33, he convincingly explained it was an honest mistake. He said he was not instructed what specific color he should use on Unit 33. Petitioner have not refuted this.

            In any case, the supposed infraction of Copillo was hardly gross, much less, habitual. Petitioners do not dispute that it happened only once. On the so-called other infractions or complaints against Copillo's poor performance, there is no evidence at all that he was ever confronted with the same. What is on record though is that for the past eight (8) years, he did not have a rating of unsatisfactory in terms of his performance as a painter.