SECOND DIVISION

G.R. No. 182255, June 15, 2015

PETRON CORPORATION, Petitioner, v. ARMZ
CABERTE, ANTONIO CABERTE, JR., MICHAEL
SERVICIO,* ARIEL DEVELOS, ADOLFO
GESTUPA, ARCHIE PONTERAS, ARNOLD
BLANCO, DANTE MARIANO,* VIRGILIO
GALOROSA, AND CAMILO TE,* Respondents.
DECISION
DEL CASTILLO, J.:
This Petition for Review on Certiorari1 assails the
November 14, 2007 Decision2 of the Court of
Appeals (CA) in CA-G.R. SP No. 82356 which
reversed the May 14, 2003 Decision3 and
November 27, 2003 Resolution4 of the National
Labor Relations Commission (NLRC) in NLRC Case
No. V-000329-2002. The NLRC affirmed the
March 7, 2002 Decision5 of the Labor Arbiter
dismissing the Complaints for illegal dismissal and
payment of monetary claims filed by respondents
Armz Caberte (Caberte), Antonio Caberte, Jr.
(Caberte Jr.), MichaeServicio (Servicio), Ariel
Develos (Develos), Adolfo Gestupa (Gestupa),
Archie Ponteras (Ponteras), Arnold Blanco
(Blanco), Dante Mariano (Mariano), Virgilio
Galorosa (Galorosa) and Camilo Te (Te) against
petitioner Petron Corporation (Petron), ABC
Contracting Services (ABC), and its owner Antonio
B. Caberte, Sr. (Caberte Sr.). Likewise assailed is
the CA Resolution6 dated March 4, 2008 which
denied Perron's Motion for Reconsideration.
Factual Antecedents
Petron is a domestic corporation engaged in the
manufacture and distribution to the general public
of various petroleum products. In pursuance of its
business, Petron owns and operates several bulk
plants in the country for receiving, storing and
distributing its products.
On various dates from 1979 to 1998, respondents
were hired to work at Petron's Bacolod Bulk Plant
in San Patrick, Bacolod City, Negros Occidental as
LPG/Gasul fillers, maintenance crew,
warehousemen, utility workers and tanker
receiving crew.
For the periods from March 1, 1996 to February
28, 1999 and November 1, 1996 to June 30,
1999, Petron and ABC, a labor contracting
business owned and operated by Caberte Sr.,
entered into a Contract for Services7 and a
Contract for LPG Assistance Services.8 Under both

service contracts, ABC undertook to provide utility

and maintenance services to Petron in its Bacolod
Bulk Plant.
Proceedings before the Labor Arbiter
On July 2, 1999, respondents Caberte, Caberte
Jr., Servicio, Develos, Gestupa, Ponteras, Blanco
and Mariano filed before the Labor Arbiter a
Complaint9 for illegal dismissal, underpayment of
wages and non-payment of allowances,
13th month pay, overtime pay, holiday pay, service
incentive leave pay, moral and exemplary
damages and attorney's fees against Petron, ABC
and Caberte Sr., docketed as NLRC RAB VI Case
No. 06-07-10588-99. Subsequently, respondents
Galorosa and Te separately filed similar
Complaints10 docketed as NLRC RAB VI Case No.
06-07-10675-99 and RAB Case No. 06-09-1078599, respectively. The three Complaints were
consolidated in an Order11 dated October 25,
1999 of the Labor Arbiter.
Respondents averred that even before Petron
engaged ABC as contractor in 1996, most of them
had already been working for Petron for years.
However, every time Petron engages a new
contractor, it would designate such new contractor
as their employer. Despite such arrangement,
Petron exercised control and supervision over
their work, the performance of which is necessary
and desirable in its usual trade and business.
Respondents added that ABC is a mere labor-only
contractor which had no substantial capital and
investment, and had no control over the manner
and method on how they accomplished their
work. Thus, Petron is their true employer. On July
1, 1999, however, Petron no longer allowed them
to enter and work in the premises of its Bacolod
Bulk Plant. Hence, the complaints for illegal
dismissal.
On the other hand, Petron asserted that ABC is an
independent contractor which supplied the
needed manpower for the maintenance of its bulk
handling premises and offices, as well as for
tanker assistance in the receiving and re-filling of
its LPG products; that among the workers
supplied by ABC were respondents, except
Caberte Jr., who does not appear to be one of
those assigned by ABC to work for it; that it has
no direct control and supervision over
respondents who were tasked to perform work
required by the service contracts it entered into
with ABC; and, that it cannot allow the continuous
employment of respondents beyond the
expiration of the contracts with ABC. To prove the
legitimacy and capacity of ABC as an independent
contractor, Petron submitted the following
documents: (1) Contractor's Pre-Qualification
Statement;12 (2) Petron's Conflict of Interest

Policy signed by Caberte Sr., as proprietor of

ABC;13 (3) ABC's Certificate of Registration issued
by the Bureau of Internal Revenue (BIR);14 (4)
Value-Added Tax Return for the year 1995;15 (5)
BIR Confirmation Receipt;16 (6) Caberte Sr.'s Tax
Identification Number (TIN) issued by the
BIR;17 (7) Caberte Sr.'s Individual Income Tax
Return for the years 199318 and 1994;19 (8) ABC's
Audited Financial Statements for the years
1992,20 199321 and 1994;22 (9) ABC's Mayor's
Permit for the year 1995;23 and, (10) ABC's
Certificate of Registration of Business Name
issued by the Department of Trade and Industry
(DTI).24 In addition, it averred that ABC, as a
contractor, had duly posted a performance
bond25 and took out insurance policies26 against
liabilities. Petron likewise presented affidavits27 of
two Petron employees stating that respondents do
not perform activities related to Petron's business
operation but only tasks which are intermittent
and which can be contracted out. Also submitted
were affidavits28 of three former employees of
ABC attesting to the fact that during their stint in
Petron, they used materials such as floor polisher,
floor wax, broom, dustpan, cleaning rags and
other equipment owned by ABC to accomplish
their tasks and that they worked under the
supervision of Caberte Sr., through the latter's
designated overall supervisor, respondent
Caberte. Petron further revealed that
ABC/Caberte Sr. has the power to hire and fire
respondents and was the one paying their wages.
In a Decision dated March 7, 2002, Executive
Labor Arbiter Danilo C. Acosta (LA Acosta) held
that ABC is an independent contractor that has
substantial capital and that respondents were its
employees. He likewise ruled that ABC's cessation
of operation is a force majeure that justifies
respondents' dismissal. Nonetheless, LA Acosta
awarded respondents separation pay based on
the applicable minimum wage rate at the time of
expiration of the contracts of service. He,
however, denied the claims for overtime pay and
night shift differential pay for lack of merit. The
dispositive portion of the Decision reads:
Conformably with the foregoing, respondent ABC
is hereby ORDERED TO PAY EACH COMPLAINANT,
namely, complainants Antonio Caberte, Jr., Armz
M. Caberte, Michael Servicio, Ariel Develos, Adolfo
Gestupa, Archie Ponteras, Arnold Blanco, Dante
Mirano, Virgilio Galorosa and Camilo Te,
separation pay of one month for every year of
service.
29

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All other claims and the claims against

respondent PETRON are hereby ORDERED
DISMISSED for lack of merit.
SO ORDERED.30

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Proceedings before the National Labor

Relations Commission

Respondents appealed to the NLRC where they

insisted that they are regular employees of Petron
since ABC is a labor-only contractor.
In a Decision31 dated May 14, 2003, the NLRC
affirmed the ruling of the Labor Arbiter after it
found that ABC is not a mere labor contractor but
a legitimate independent contractor. In so ruling,
the NLRC took into account the following: (1)
ABC/Caberte Sr. has the power of control over
respondents as Caberte Sr. was the one
controlling and supervising respondents in their
work. While Petron intervened at times, the same
was limited to safety precautions due to the
hazardous nature of the products the workers
were dealing with; (2) ABC possessed sufficient
capital and equipment per the various documents
that Petron submitted showing the former's
financial capability to maintain its status as an
accredited contractor of the latter. In fact,
Caberte Sr. was even able to establish ABC's
Bacolod City Office; and, (3) ABC/Caberte Sr. has
the power to hire and dismiss respondents.
Hence, the dispositive portion of the
Decision, viz:
WHEREFORE, premises considered, this appeal is
DISMISSED and the decision of the Executive
Labor Arbiter is AFFIRMED.
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SO ORDERED.32

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Respondents filed a Motion for Reconsideration

which was, however, denied in the NLRC
Resolution33dated November 27, 2003.
Proceedings before the Court of Appeals
Aggrieved, respondents filed a Petition
for Certiorari34 before the CA ascribing upon the
NLRC grave abuse of discretion amounting to lack
or in excess of jurisdiction in holding that they are
not employees of Petron.
The CA, in a Decision35 dated November 14, 2007,
found merit in respondents' Petition. It ruled that
ABC is engaged in labor-only contracting because:
first, it did not have substantial capital or
investment in the form of tools, equipment,
implements, machineries and work premises,
actually and directly used in the performance or
completion of the job it contracted out from
Petron; second, the work assigned to
respondents were directly related to Petron's
business; and, third, the nature of Petron's
business requires it to exercise control over the
performance of respondents' work. Consequently,
the CA declared respondents as Petron's regular
employees. And since Petron did not comply with
the requirements under the Labor Code when it
terminated their employment, respondents were
illegally dismissed and therefore entitled to
reinstatement without loss of seniority rights and

other privileges, with the alternative relief of

separation pay in lieu of reinstatement, and to full
backwages, inclusive of allowances, and to other
benefits or their monetary equivalent computed
from the time compensation was withheld up to
the time of actual reinstatement. The CA,
however, denied respondents' claims for moral
and exemplary damages in the absence of bad
faith in Petron's act of dismissing them but
awarded respondents 10% attorney's fees for
having to litigate to protect their interests. The
dispositive portion of the Decision reads:
WHEREFORE, in view of the foregoing, the
decision of the National Labor Relations
Commission dated May 14, 2003, in NLRC Case
No. V-000329-2002, affirming the March 7, 2002
Decision of Executive Labor Arbiter Danilo C.
Acosta of the Sub-Regional Arbitration Branch VI,
Bacolod City, is hereby REVERSED.
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Respondent Petron Corporation is ordered to

reinstate Armz Caberte, Antonio Caberte, Jr.,
Michael Servicio, Ariel Develos, Adolfo Gestupa,
Archie Ponteras, Arnold Blanco, Dante Mirano,
Virgilio Galorosa and Camilo Te to their former
positions with the same rights and benefits and
the same salary rates as its regular employees.
Respondent Petron Corporation is likewise ordered
to pay petitioner's attorney's fees equivalent to
ten percent (10%) of the monetary award.
All other claims are dismissed for lack of merit.
Costs against private respondent Petron.
SO ORDERED.36

B.

THE CONTRACTED SERVICES

THAT RESPONDENTS
PERFORMED ARE NOT DIRECTLY
RELATED AND NECESSARY OR
DESIRABLE TO THE COMPANY'S
PRINCIPAL BUSINESS;

C.

ABC CONTRACTING SERVICES

CARRIES ON AN INDEPENDENT
BUSINESS AND POSSESSES
SUBSTANTIAL CAPITAL AND
INVESTMENT;

D. RESPONDENTS ARE EMPLOYEES

OF ABC CONTRACTING
SERVICES.39
Petron asserts that ABC, as an independent
contractor, rendered janitorial, utility and LPG
assistance services by virtue of legitimate
contracts entered into by and between them. As
such, the services rendered by respondents were
purely maintenance and utility works which are
not directly related, necessary and desirable to
Petron's main business.
Petron likewise insists that ABC is not a labor-only
contractor as it carries on an independent
business and uses its own equipment, tools,
materials and supplies in the performance of its
contracted services. Further, it asserts that ABC
wielded and exercised the power of selection or
engagement, payment of wages, discipline or
dismissal, and of control over respondents.
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Our Ruling

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Petron's Motion for Reconsideration was denied

by the CA in its Resolution38 dated March 4, 2008.
Hence, this present recourse.
37

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Issues
Petron presents the following grounds for
review:
XXX THE COURT OF APPEALS SERIOUSLY ERRED
AND DECIDED A QUESTION OF SUBSTANCE IN A
MANNER NOT IN ACCORD WITH LAW AND WITH
APPLICABLE JURISPRUDENCE IN FINDING THAT
ABC CONTRACTING SERVICES IS A MERE LABORONLY CONTRACTOR AND IN HOLDING THAT
RESPONDENTS ARE THUS REGULAR EMPLOYEES
OF THE COMPANY CONSIDERING THAT:

The Petition has no merit.

Labor-only contracting and permissible job
contracting, defined; a contractor is presumed by
law to be a labor-only contractor; anyone
claiming the supposed status of an independent
contractor bears the burden of proving the same.

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A.

THERE IS A LEGITIMATE
SERVICE CONTRACTING
AGREEMENT BETWEEN THE
COMPANY AND ABC
CONTRACTING SERVICES;

As defined under Article 106 of the Labor Code,

labor-only contracting, a prohibited act, is an
arrangement where the contractor, who does not
have substantial capital or investment in the form
of tools, equipment, machineries, work premises,
among others, supplies workers to an employer
and the workers recruited are performing
activities which are directly related to the
principal business of such employer.
Permissible or legitimate job contracting or
subcontracting, on the other hand, "refers to an
arrangement whereby a principal agrees to put
out or farm out with the 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
carries on a distinct and independent business
and partakes the contract work on his account
under his own responsibility according to his own
manner and method, free from the control and
direction of his employer or principal in all
matters connected with the performance of his
work except as to the results thereof; (b) the
contractor has substantial capital or investment;
and (c) the agreement between the principal and
the 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 welfare benefits."40
To determine whether a contractor is engaged in
labor-only contracting or permissible job
contracting, "the totality of the facts and the
surrounding circumstances of the case are to be
considered."41
Petron contends that the CA erred in ruling that
ABC is a labor-only contractor since respondents
failed to prove that ABC is not an independent
contractor. The contention, however, is incorrect.
The law presumes a contractor to be a labor-only
contractor and the employees are not expected to
prove the negative fact that the contractor is a
labor-only contractor.42 Thus, it is not
respondents but Petron which bears the burden of
establishing that ABC is not a labor-only
contractor but a legitimate independent
contractor. As held in Alilin v. Petron
Corporation,43 "where the principal is the one
claiming that the contractor is a legitimate
contractor, the burden of proving the supposed
status of the contractor rests on the principal."
Petron failed to overcome the presumption that
ABC is a labor-only contractor.
Foremost, Petron banks on the contracts of
services it entered into with ABC. It contends that
the said contracts were legitimate business
transactions and were not only for the purpose of
ABC providing manpower or labor-only to Petron,
but rather for specific services pertaining to
janitorial, utility and LPG assistance.
Suffice it to state, however, that Petron cannot
place reliance on the contracts it entered into with
ABC since these are not determinative of the true
nature of the parties' relationship. As held
in Babas v. Lorenzo Shipping Corporation,44 the
character of the business, whether as labor-only
contractor or as a job contractor, should be

determined by the criteria set by statute and the

parties cannot dictate by the mere expedience of
a unilateral declaration in a contract the character
of their business.
Next, Petron endeavours to prove that ABC is a
legitimate independent contractor.
To restate, a contractor is deemed to be a laboronly contractor if the following elements are
present: (i) the contractor does not have
substantial capital or investment to actually
perform the job, work or service under its own
account and responsibility; and (ii) the employees
recruited, supplied or placed by such contractor
are performing activities which are directly related
to the main business of the
principal.45 Conversely, in proving that ABC is not
a labor-only contractor, it is incumbent upon
Petron to show that ABC has substantial capital or
investment and that respondents were performing
activities which were not directly related to
Petron's principal business.
To show that ABC has substantial capital or
investment, Petron submitted, among others,
ABC's BIR Certificate of Registration, VAT Return,
BIR Confirmation Receipt, TIN, Individual Income
Tax Return, Mayor's Permit and DTI Certificate of
Registration. However, the Court observes that
these documents are not conclusive evidence of
ABC's financial capability. At most, they merely
show that ABC is engaged in business and
licensed by the appropriate government agencies.
As for the financial statements presented, it
appears that only the audited financial statements
of ABC for the years 1992, 1993 and 1994 were
submitted. As aptly observed by the CA, these
documents cannot be given much credence
considering that the service contracts between
Petron and ABC commenced in 1996 and ended in
1999. However, no audited financial statements
for the years material to this case (1996, 1997,
1998 and 1999) were submitted. Also, as per
record, ABC was obligated to submit to Petron at
least once every two years its latest audited
financial statements, among others, as a
requirement for the retention of its status as an
accredited contractor of Petron.46 If it is true that
ABC continued to possess its financial qualification
after 1994, Petron should have presented ABC's
financial statements for the said years which are
presumed to be in Petron's possession considering
that they are part of the requirements that it
itself set for its accredited contractors.
Neither does the performance bond taken out by
ABC serve as significant evidence of its
substantial capital. As aptly explained by the
CA:
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The performance bond posted by ABC Contracting

Services likewise fails to convince us that the
former has substantial capital or investment
inasmuch as it was not shown that the
performance bond in the amount of P596,799.51
was enough to cover not only payrolls, rentals
and equipment but also possible damages to the
equipment and to third parties and other
contingent liabilities. Moreover, this Court takes
judicial notice that bonds of this nature are issued
upon payment of a small percentage as premium
without necessarily requiring any guarantee.
If at all, the bond was a convenient smoke screen
to disguise the real nature of ABC's employment
as an agent of Petron.47
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Anent substantial investment in the form of

equipment, tools, implements, machineries and
work premises, Petron likewise failed to show that
ABC possessed the same. Instead, what is
evident in the records was that ABC had been
renting a forklift from Petron in order to carry out
the job of respondents.48 This only shows that
ABC does not own basic equipment needed in the
performance of respondents' job. Similarly and
again as correctly held by the CA, the fact that
ABC leased a property for the establishment of its
Bacolod office is immaterial since it was not
shown that it was used in the performance or
completion of the job contracted out. "Substantial
capital or investment," under Section 5, Rule VIIIA, Book III of the Omnibus Rules Implementing
the Labor Code (Implementing Rules), as
amended by Department Order No. 18-02,49 does
not include those which are not actually and
directly used in the performance of the job
contracted out.
Going now to the activities performed by
respondents, Petron avers that the same were not
necessary or desirable to its principal business. In
fact, the service contracts it entered into with
ABC clearly referred to respondents' functions as
maintenance and utility works only which are
remote to its principal business of manufacturing
and distributing petroleum products.
The Court finds otherwise. Gestupa, Ponteras,
Develos, Blanco and Mariano were LPG fillers and
maintenance crew; Caberte was an LPG operator
supervisor; Te was a warehouseman and utility
worker; and Servicio and Galorosa were tanker
receiving crew and utility workers. Undoubtedly,
the work they rendered were directly related to
Petron's main business, vital as they are in the
manufacture and distribution of petroleum
products. Besides, some of the respondents were
already working for Petron even before it engaged
ABC as a contractor in 1996. Albeit it was made
to appear that they were under the different
contractors that Petron engaged over the years,
respondents have been regularly performing the

same tasks within the premises of Petron. This

"the repeated and continuing need for the
performance of the job is sufficient evidence of
the necessity, if not indispensability of the activity
to the business."50
What further militates against Perron's claim that
ABC, as an alleged independent contractor, is the
true employer of respondents, is the fact that
Petron has the power of control over respondents
in the performance of their work. It bears
stressing that the power of control merely calls
for the existence of the right to control and not
necessarily the exercise thereof.51 Here, Petron
admitted in its Position Paper that the supervision
of a Petron employee is required over LPG and
tanker assistance jobs for inventory control and
safety checking purposes. It explained that due to
the hazardous nature of its products, constant
checking of the procedures in their handling is
essential considering the high possibility of fatal
accidents. It also admitted that it was the one
supplying the needed materials and equipment in
discharging these functions to better insure the
integrity, quality and safety of its products.
From the foregoing, it is clear that Petron failed to
discharge its burden of proving that ABC is not a
labor-only contractor. Consequently, and as
warranted by the facts, the Court declares ABC as
a mere labor-only contractor. "A finding that a
contractor is a 'labor-only' contractor is equivalent
to declaring that there is an employer-employee
relationship between the principal and the
employees of the supposed contractor, and the
'labor-only' contractor is considered as a mere
agent of the principal, the real
employer."52 Accordingly in this case, Petron is
declared to be the true employer of respondents
who are considered regular employees in view of
the fact that they have been regularly performing
activities which are necessary and desirable to the
usual business of Petron for a number of years.
Respondents, except Antonio Caberte, Jr., were
illegally dismissed.
With respect to respondents' dismissal, Petron
claimed that the same sprang from the
termination or conclusion of the service contracts
it entered into with ABC. As earlier held,
respondents are considered regular employees. In
cases of regular employment, an employer may
only terminate the services of an employee for
just or authorized causes under the law.53 As the
reason given by Petron dismissing respondents
does not constitute a just or authorized cause for
termination,54 the latter are declared to have been
illegally dismissed. Respondents are thus entitled
to all the remedies of an illegally dismissed
employee, i.e., backwages and reinstatement, or
if no longer feasible, separation pay. The CA is

thus correct in ruling that respondents are

entitled to reinstatement without loss of seniority
rights and other privileges. However, if
reinstatement is no longer feasible, respondents
are entitled to receive separation pay equivalent
to one month salary for every year of service. In
addition, respondents are entitled to full
backwages from the time they were not allowed
to work on July 1, 1999 up to actual
reinstatement or finality of this Decision as the
case may be.
An exception must be taken, however, with
respect to Caberte Jr. From the beginning, Petron
disputes the fact he ever worked for Petron.
Therefore, before his case against Petron can
prosper, Caberte Jr. must first establish that an
employer-employee relationship existed between
them since it is basic that the issue of illegal
dismissal is premised on the existence of such
relationship between the parties.55 Unfortunately,
nowhere in the records does it show that he
indeed worked for Petron. Consequently, his
complaint should be dismissed.
WHEREFORE, the petition is DENIED. The
November 14, 2007 Decision and the March 4,
2008 Resolution of the Court of Appeals in CAG.R. SP No. 82356 are MODIFIED in that: (1)
the Complaint of respondent Antonio Caberte, Jr.
against petitioner Petron Corporation is
dismissed; and (2) petitioner Petron Corporation
is ordered to reinstate all of the respondents,
except for Antonio Caberte, Jr., to their former
positions with the same rights and benefits and
the same salary rates as its regular employees, or
if reinstatement is no longer feasible, to
separation pay equivalent to one month salary for
every year of service and to pay them their full
backwages from July 1, 1999 until actual
reinstatement or upon finality of this Decision as
the case may be, as well as attorney's fees
equivalent to 10% of the monetary award, with
costs against Petron Corporation.
SO ORDERED.

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Carpio, (Chairperson), Brion, Mendoza,

and Leonen, JJ., concur.

Petitioners,
Present:

QUISUMBIN
- versus -

NACHURA,*

BRION, and

PERALTA,** J
SHANGRI-LAS MACTAN ISLAND
RESORT and DR. JESSICA J.R.
PEPITO,
Respondents.
x---------------------------- - - - - - - - - - - - - - - - - - - - - -x

DECISION

CARPIO MORALES, J.:

Registered nurses Jeromie D.
Escasinas and Evan Rigor Singco
(petitioners) were engaged in 1999
and 1996, respectively, by Dr. Jessica
Joyce R. Pepito (respondent doctor) to
work in her clinic at respondent
Shangri-las Mactan Island Resort
(Shangri-la) in Cebu of which she was
a retained physician.

_________________________
_________________________
_________________________
SECOND DIVISION

JEROMIE D. ESCASINAS and EVAN

RIGOR SINGCO,

CARPIO MO

In late 2002, petitioners filed with the

National Labor Relations Commission
(NLRC) Regional Arbitration Branch No.
VII (NLRC-RAB No. VII) a
complaint[1] for regularization,
underpayment of wages, non-payment
G.R.of
No.
178827
holiday
pay, night shift differential
th
and 13 month pay differential against

Promulgate

March 4, 20

respondents, claiming that they are

regular employees of Shangri-la. The
case was docketed as RAB Case No.
07-11-2089-02.

Shangri-la claimed, however, that

petitioners were not its employees but
of respondent doctor whom it retained
via Memorandum of Agreement (MOA)
[2]
pursuant to Article 157 of the Labor
Code, as amended.

Respondent doctor for her part

claimed that petitioners were already
working for the previous retained
physicians of Shangri-la before she
was retained by Shangri-la; and that
she maintained petitioners services
upon their request.

By Decision[3] of May 6, 2003, Labor

Arbiter Ernesto F. Carreon declared
petitioners to be regular employees of
Shangri-la. The Arbiter thus ordered
Shangri-la to grant them the wages
and benefits due them as regular
employees from the time their
services were engaged.

In finding petitioners to be regular

employees of Shangri-la, the Arbiter
noted that they usually perform work
which is necessary and desirable to
Shangri-las business; that they
observe clinic hours and render
services only to Shangri-las guests and
employees; that payment for their
salaries were recommended to
Shangri-las Human Resource
Department (HRD); that respondent
doctor was Shangri-las in-house
physician, hence, also an employee;

and that the MOA between Shangri-la

and respondent doctor was an
insidious mechanism in order to
circumvent [the doctors] tenurial
security and that of the employees
under her.

Shangri-la and respondent doctor

appealed to the NLRC. Petitioners
appealed too, but only with respect to
the non-award to them of some of the
benefits they were claiming.
By Decision[4] dated March 31, 2005,
the NLRC granted Shangri-las and
respondent doctors appeal and
dismissed petitioners complaint for
lack of merit, it finding that no
employer-employee relationship exists
between petitioner and Shangri-la. In
so deciding, the NLRC held that the
Arbiter erred in interpreting Article 157
in relation to Article 280 of the Labor
Code, as what is required under Article
157 is that the employer should
provide the services of medical
personnel to its employees, but
nowhere in said article is a provision
that nurses are required to be
employed; that contrary to the finding
of the Arbiter, even if Article 280
states that if a worker performs work
usually necessary or desirable in the
business of the employer, he cannot
be automatically deemed a regular
employee; and that the MOA amply
shows that respondent doctor was in
fact engaged by Shangri-la on a
retainer basis, under which she could
hire her own nurses and other clinic
personnel.

Brushing aside petitioners contention

that since their application for
employment was addressed to

Shangri-la, it was really Shangri-la

which hired them and not respondent
doctor, the NLRC noted that the
applications for employment were
made by persons who are not parties
to the case and were not shown to
have been actually hired by Shangrila.

On the issue of payment of wages, the

NLRC held that the fact that, for some
months, payment of petitioners wages
were recommended by Shangri-las
HRD did not prove that it was Shangrila which pays their wages. It thus
credited respondent doctors
explanation that the recommendations
for payment were based on the billings
she prepared for salaries
of additional nurses during Shangri-las
peak months of operation, in
accordance with the retainership
agreement, the guests payments for
medical services having been paid
directly to Shanrgi-la.

Petitioners thereupon brought the case

to the Court of Appeals which, by
Decision[5] of May 22, 2007, affirmed
the NLRC Decision that no employeremployee relationship exists between
Shangri-la and petitioners. The
appellate court concluded that all
aspects of the employment of
petitioners being under the
supervision and control of respondent
doctor and since Shangri-la is not
principally engaged in the business of
providing medical or healthcare
services, petitioners could not be
regarded as regular employees of
Shangri-la.

Petitioners motion for reconsideration

having been denied by
Resolution[6] of July 10, 2007, they
interposed the present recourse.

Petitioners insist that under Article 157

of the Labor Code, Shangri-la is
required to hire a full-time registered
nurse, apart from a physician, hence,
their engagement should be deemed
as regular employment, the provisions
of the MOA notwithstanding; and that
the MOA is contrary to public policy as
it circumvents tenurial security and,
therefore, should be struck down as
being void ab initio. At most, they
argue, the MOA is a mere job contract.

And petitioners maintain that

respondent doctor is a labor-only
contractor for she has no license or
business permit and no business name
registration, which is contrary to the
requirements under Sec. 19 and 20 of
the Implementing Rules and
Regulations of the Labor Code on subcontracting.

Petitioners add that respondent doctor

cannot be a legitimate
independent contractor, lacking as she
does in substantial capital, the clinic
having been set-up and already
operational when she took over as
retained physician; that respondent
doctor has no control over how the
clinic is being run, as shown by the
different orders issued by officers of
Shangri-la forbidding her from
receiving cash payments and several
purchase orders for medicines and
supplies which were coursed thru
Shangri-las Purchasing Manager,

circumstances indubitably showing

that she is not an independent
contractor but a mere agent of
Shangri-la.

In its Comment,[7] Shangri-la questions

the Special Powers of Attorneys (SPAs)
appended to the petition for being
inadequate. On the merits, it prays for
the disallowance of the petition,
contending that it raises factual
issues, such as the validity of the
MOA, which were never raised during
the proceedings before the Arbiter,
albeit passed upon by him in his
Decision; that Article 157 of the Labor
Code does not make it mandatory for
a covered establishment to employ
health personnel; that the services of
nurses is not germane nor
indispensable to its operations; and
that respondent doctor is a legitimate
individual independent contractor who
has the power to hire, fire and
supervise the work of the nurses
under her.

The resolution of the case hinges, in

the main, on the correct interpretation
of Art. 157 vis a vis Art. 280 and the
provisions on permissible job
contracting of the Labor Code, as
amended.

The Court holds that, contrary to

petitioners postulation, Art. 157 does
not require the engagement of
full-time nurses as regular
employees of a company
employing not less than 50
workers. Thus, the Article provides:

ART. 157. Emergency medical and

dental services. It shall be the duty
of every employer to furnish his
employees in any locality with free
medical and dental attendance and
facilities consisting of:

(a)
The services of a fulltime registered nurse when the
number of employees exceeds
fifty (50) but not more than two
hundred (200) except when the
employer does not maintain
hazardous workplaces, in which
case the services of a graduate firstaider shall be provided for the
protection of the workers, where no
registered nurse is available. The
Secretary of Labor shall provide by
appropriate regulations the services
that shall be required where the
number of employees does not exceed
fifty (50) and shall determine by
appropriate order hazardous
workplaces for purposes of this Article;

(b)
The services of a fulltime registered nurse, a part-time
physician and dentist, and an
emergency clinic, when the
number of employees exceeds two
hundred (200) but not more than
three hundred (300); and

(c)
The services of a full-time
physician, dentist and full-time
registered nurse as well as a dental
clinic, and an infirmary or emergency
hospital with one bed capacity for
every one hundred (100) employees
when the number of employees
exceeds three hundred (300).

In cases of hazardous workplaces, no

employer shall engage the services of
a physician or dentist who cannot stay
in the premises of the establishment
for at least two (2) hours, in the case
of those engaged on part-time basis,
and not less than eight (8) hours in the
case of those employed on full-time
basis. Where the undertaking is
nonhazardous in nature, the
physician and dentist may be
engaged on retained basis,
subject to such regulations as the
Secretary of Labor may prescribe
to insure immediate availability of
medical and dental treatment and
attendance in case of
emergency. (Emphasis and
underscoring supplied)

Under the foregoing provision,

Shangri-la, which employs more than
200 workers, is mandated
to furnish its employees with the
services of a full-time registered
nurse, a part-time physician and
dentist, and an emergency clinic which
means that it should provide or
make available such medical and
allied services to its employees,
not necessarily to hire or employ
a service provider. As held
in Philippine Global Communications
vs. De Vera:[8]

x x x while it is true that the

provision requires employers to
engage the services of medical
practitioners in certain
establishments depending on the
number of their

employees, nothing is there in the

law which says that medical
practitioners so engaged be
actually hired as employees,
adding that the law, as written, only
requires the employer to retain, not
employ, a part-time physician who
needed to stay in the premises of the
non-hazardous workplace for two (2)
hours. (Emphasis and underscoring
supplied)

The term full-time in Art. 157 cannot

be construed as referring to the type
of employment of the person engaged
to provide the services, for Article 157
must not be read alongside Art.
280[9] in order to vest employeremployee relationship on the
employer and the person so
engaged. So De Vera teaches:

x x x For, we take it that any

agreement may provide that one party
shall render services for and in behalf
of another, no matter how necessary
for the latters business, even without
being hired as an employee. This
set-up is precisely true in the case of
an independent contractorship as well
as in an agency agreement. Indeed,
Article 280 of the Labor Code,
quoted by the appellate court, is
not the yardstick for determining
the existence of an employment
relationship. As it is, the
provision merely distinguishes
between two (2) kinds of
employees, i.e., regular and
casual. x x x[10] (Emphasis and
underscoring supplied)

The phrase services of a full-time

registered nurse should thus be taken
to refer to the kind of services that the
nurse will render in the companys
premises and to its employees, not the
manner of his engagement.

As to whether respondent doctor can

be considered a legitimate
independent contractor, the pertinent
sections of DOLE Department Order
No. 10, series of 1997, illuminate:

Sec. 8. Job contracting. There is job

contracting permissible under the
Code if the following conditions are
met:

(1) The contractor carries on an

independent business and undertakes
the contract work on his own account
under his own responsibility according
to his own manner and method, free
from the control and direction of his
employer or principal in all matters
connected with the performance of the
work except as to the results thereof;
and

(2) The contractor has substantial

capital or investment in the form of
tools, equipment, machineries, work
premises, and other materials which
are necessary in the conduct of his
business.

Sec. 9. Labor-only contracting. (a) Any

person who undertakes to supply
workers to an employer shall be

deemed to be engaged in labor-only

contracting where such person:

(1) Does not have substantial

capital or investment in the form
of tools, equipment, machineries,
work premises and other
materials; and

(2) The workers recruited and

placed by such persons are
performing activities which are
directly related to the principal
business or operations of the
employer in which workers are
habitually employed.

(b) Labor-only contracting as defined

herein is hereby prohibited and the
person acting as contractor shall be
considered merely as an agent or
intermediary 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.

(c) For cases not falling under this

Article, the Secretary of Labor shall
determine through appropriate orders
whether or not the contracting out of
labor is permissible in the light of the
circumstances of each case and after
considering the operating needs of the
employer and the rights of the workers
involved. In such case, he may
prescribe conditions and restrictions to
insure the protection and welfare of
the workers. (Emphasis supplied)

The existence of an independent and

permissible contractor relationship is

generally established by considering

the following determinants: whether
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.[11]

On the other hand, existence of an

employer- employee relationship is est
ablished by the presence of the
following
determinants: (1) the selection and en
gagement of the workers; (2) power of
dismissal; (3) the payment of wages
by whatever means; and (4) the power
to control the worker's conduct, with
the latter assuming primacy in the
overall consideration.[12]

Against the above-listed determinants,

the Court holds that respondent doctor
is a legitimate independent
contractor. That Shangri-la provides
the clinic premises and medical
supplies for use of its employees and
guests does not necessarily prove that
respondent doctor lacks substantial
capital and investment. Besides, the
maintenance of a clinic and provision
of medical services to its employees is
required under Art. 157, which are not
directly related to Shangri-las principal
business operation of hotels and
restaurants.

As to payment of wages, respondent

doctor is the one who underwrites the
following: salaries, SSS contributions
and other benefits of the staff [13];
group life, group personal accident
insurance and life/death
insurance[14] for the staff with
minimum benefit payable at 12 times
the employees last drawn salary, as
well as value added taxes and
withholding taxes, sourced from
her P60,000.00 monthly retainer fee
and 70% share of the service charges
from Shangri-las guests who avail of
the clinic services. It is unlikely that
respondent doctor would report
petitioners as workers, pay their SSS
premium as well as their wages if they
were not indeed her employees.[15]

With respect to the supervision and

control of the nurses and clinic staff, it
is not disputed that a document, Clinic
Policies and Employee
Manual[16] claimed to have been
prepared by respondent doctor
exists, to which petitioners gave their
conformity[17] and in which they

acknowledged their co-terminus

employment status. It is thus
presumed that said document, and not
the employee manual being followed
by Shangri-las regular workers,
governs how they perform their
respective tasks and responsibilities.

Contrary to petitioners contention, the

various office directives issued by
Shangri-las officers do not imply that
it is Shangri-las management and not
respondent doctor who exercises
control over them or that Shangri-la
has control over how the doctor and
the nurses perform their work. The
letter[18] addressed to respondent
doctor dated February 7, 2003 from a
certain Tata L. Reyes giving
instructions regarding the
replenishment of emergency kits is, at
most, administrative in nature, related
as it is to safety matters; while the
letter[19] dated May 17, 2004 from
Shangri-las Assistant Financial
Controller, Lotlot Dagat, forbidding the
clinic from receiving cash payments
from the resorts guests is a matter of
financial policy in order to ensure
proper sharing of the proceeds,
considering that Shangri-la and
respondent doctor share in the guests
payments for medical services
rendered. In fine, as Shangri-la does
not control how the work should be
performed by petitioners, it is not
petitioners employer.
WHEREFORE, the petition is
hereby DENIED. The Decision of the
Court of Appeals dated May 22,
2007 and the Resolution dated July 10,
2007 are AFFIRMED.

SO ORDERED.

_______________________
_______________________
_______________________
SECOND DIVISION

SOUTH DAVAO DEVELOPMENT G.R. No.

171814
COMPANY, INC. (NOW SODACO
AGRICULTURAL CORPORATION)
AND/OR MALONE PACQUIAO Present:
AND VICTOR A. CONSUNJI,
Petitioners,
CARPIO MORALES,* J.
- versus - Acting Chairperson,
TINGA,
VELASCO, JR.,
SERGIO L. GAMO,
ERNESTO LEONARDO DE
CASTRO,**and
BELLEZA, FELIX TERONA, BRION, JJ.
CARLOS ROJAS, MAXIMO
MALINAO, VIRGILIO COSEP,
ELEONOR COSEP,
MAXIMO Promulgated:
TOLDA, NELSON BAGAAN,
and TRADE UNION OF THE
PHILIPPINES and ALLIED May 8, 2009
SERVICES (TUPAS),
Respondents.
x--------------------------------------------------------------------------------------x

D E C I S I ON
TINGA, J.:

Before us is a Rule 45 petition[1] which

seeks the reversal of the Court of
Appeals decision[2] and resolution[3] in
CA-G.R. SP No. 68511. The Court of
Appeals decision reinstated the NLRCs
Resolution[4] dated 23 March
2001 which reversed the labor arbiters
decision.[5]

Petitioner South Davao Development

Company (petitioner or petitioner
corporation) is the operator of a
coconut and mango farm in San Isidro,
Davao Oriental and
Inawayan/Baracatan, Davao del Sur.
On August 1963 petitioner hired
respondent Sergio L. Gamo (Gamo) as
a foreman. Sometime in 1987,
petitioner appointed Gamo as a copra
maker contractor. Respondents
Ernesto Belleza, Carlos Rojas, Maximo
Malinao were all employees in
petitioners coconut farm, while
respondents Felix Terona, Virgilio
Cosep, Maximo Tolda, and Nelson
Bagaan were assigned to petitioners
mango farm. All of the abovenamed
respondents (copra workers) were
later transferred by petitioner to Gamo
as the latters copraceros. From 1987
to 1999, Gamo and petitioner entered
into a profit-sharing agreement
wherein 70% of the net proceeds of
the sale of copra went to petitioner
and 30% to Gamo. The copra workers
were paid by Gamo from his 30%
share.

Petitioner wanted to standardize

payments to its contractors in its
coconut farms. On 2 October 1999,
petitioner proposed a new payment
scheme to Gamo. The new scheme
provided a specific price for each
copra making activity. Gamo
submitted his counter proposal.
[6]
Petitioner did not accept Gamos
counter proposal since it was higher
by at least fifty percent (50%) from its
original offer. Without agreeing to the
new payment scheme, Gamo and his
copra workers started to do harvesting
work. Petitioner told them to stop.
Eventually, petitioner and Gamo
agreed that the latter may continue
with the harvest provided that it would
be his last contract with petitioner.
Gamo suggested to petitioner to look
for a new contractor since he was not
amenable to the new payment
scheme.[7]

Gamo and petitioner failed to agree on

a payment scheme, thus, petitioner
did not renew the contract of Gamo.
Gamo and the copra workers alleged
that they were illegally dismissed.

On the other hand, respondent Eleonor

Cosep (Eleonor) was employed as a
mango classifier in the packing house
of petitioners mango farm in San
Isidro, Davao Oriental. Sometime in
October 1999, she did not report for
work as she had wanted to raise and
sell pigs instead. Petitioner, through
Malone Pacquiao, tried to convince
Eleonor to report for work but to no
avail.
On 22 March 2000, respondents filed a
complaint[8] for illegal dismissal
against petitioner. They alleged that

sometime in December 1999,

petitioner verbally terminated
them en masse.

The labor arbiter dismissed[9] the

complaint. He ruled that there was no
employee-employer relationship
between petitioner and respondents.
As to Eleonor, he ruled that she had
voluntarily stopped working.

Respondents appealed to the National

Labor Relations Commission (NLRC).
The NLRCs Resolution[10] reversed the
arbiters decision and ruled that
respondents were petitioners
employees. Petitioner moved[11] for
reconsideration. The NLRC
granted[12] the motion for
reconsideration and ruled that the
nature of the job of the respondents
could not result in an employeremployee relationship. Respondents
moved for reconsideration which was
denied.[13]

Respondents filed a petition for

certiorari[14] under Rule 65 with the
Court of Appeals. The Court of Appeals
ruled that there existed an employeremployee relationship. It declared that
respondents were regular seasonal
employees who can be dismissed by
the petitioner at the end of the season
provided due process is observed.
[15]
With regard to Eleonor, the Court of
Appeals ruled that she did not
abandon her work.
Hence this petition.

Petitioner raises the following issues:

(1) whether the Court of Appeals failed
to take judicial notice of the accepted
practice of independent contractors in
the coconut industry; (2) whether
there is a valid job contracting
between petitioner and Gamo; and (3)
whether Eleonor had effectively
abandoned her work.

The labor arbiter took judicial notice of

the alleged prevailing business
practices in the coconut industry that
copra making activities are done
quarterly; that the workers can
contract with other farms; and that the
workers are independent from the land
owner on all work aspects. Petitioner
wants this Court to take judicial notice
of the current business practice in the
coconut industry which allegedly
treats copraceros as independent
contractors. In Expertravel & Tours,
Inc. v. Court of Appeals, [16] we held,
thus:

Generally speaking, matters of judicial

notice have three material requisites:
(1) the matter must be one of
common and general knowledge; (2) it
must be well and authoritatively
settled and not doubtful or uncertain;
and (3) it must be known to be within
the limits of the jurisdiction of the
court. The principal guide in
determining what facts may be
assumed to be judicially known is that
of notoriety.[17] Hence, it can be said
that judicial notice is limited to facts
evidenced by public records and facts
of general notoriety. Moreover, a
judicially noticed fact must be one not
subject to a reasonable dispute in that
it is either: (1) generally known within

the territorial jurisdiction of the trial

court; or (2) capable of accurate and
ready determination by resorting to
sources whose accuracy cannot
reasonably be questionable.[18]
Things of common knowledge, of
which courts take judicial matters
coming to the knowledge of men
generally in the course of the ordinary
experiences of life, or they may be
matters which are generally accepted
by mankind as true and are capable of
ready and unquestioned
demonstration. Thus, facts which are
universally known, and which may be
found in encyclopedias, dictionaries or
other publications, are judicially
noticed, provided, they are of such
universal notoriety and so generally
understood that they may be regarded
as forming part of the common
knowledge of every person. As the
common knowledge of man ranges far
and wide, a wide variety of particular
facts have been judicially noticed as
being matters of common
knowledge. But a court cannot
take judicial notice of any fact which,
in part, is dependent on the existence
or non-existence of a fact of which the
court has no constructive knowledge.
[19]

An invocation that the Court take

judicial notice of certain facts should
satisfy the requisites set forth by case
law. A mere prayer for its application
shall not suffice. Thus, in this case the
Court cannot take judicial notice of the
alleged business practices in the copra
industry since none of the material
requisites of matters of judicial notice
is present in the instant petition. The
record is bereft of any indication that
the matter is of common knowledge to
the public and that it has the

characteristic of notoriety, except

petitioners self-serving claim.

A related issue is whether Gamo is an

independent contractor. In Escario v.
NLRC,[20] we ruled that there is
permissible job contracting when a
principal agrees to put out or farm out
with a contractor or a subcontractor
the performance or completion of a
specific job, work or service within a
definite or predetermined period,
regardless of whether such job or work
service is to be performed within or
outside the premises of the principal.
[21]
To establish the existence of an
independent contractor, we apply the
following conditions: first, the
contractor carries on an independent
business and undertakes the contract
work on his own account under his
own responsibility according to his
own manner and method, free from
the control and direction of his
employer or principal in all matters
connected with the performance of the
work except to the result thereof; and
second, the contractor has
substantial capital or investments in
the form of tools, equipment,
machineries, work premises and other
materials which are necessary in the
conduct of his business.[22]

The Implementing Rules and

Regulation of the Labor Code defines
investmentas tools, equipment,
implements, machineries and work
premises, actually and directly used
by the contractor or subcontractor in
the performance or completion of the
job, work, or service contracted out.
[23]
The investment must be sufficient
to carry out the job at hand.

In the case at bar, Gamo and the

copra workers did not exercise
independent judgment in the
performance of their tasks. The tools
used by Gamo and his copra workers
like
the karit, bolo, pangbunot, panglugit a
nd pangtapok are not sufficient to
enable them to complete the job.
[24]
Reliance on these primitive tools is
not enough. In fact, the
accomplishment of their task required
more expensive machineries and
equipment, like the trucks to haul the
harvests and the drying facility, which
petitioner corporation owns.

In order to determine the existence of

an employer-employee relationship,
the Court has frequently applied the
four-fold test: (1) the selection and
engagement of the employee; (2) the
payment of wages; (3) the power of
dismissal; and (4) the power to control
the employees conduct, or the so
called control test, which is considered
the most important element.[25] From
the time they were hired by petitioner
corporation up to the time that they
were reassigned to work under Gamos
supervision, their status as petitioner
corporations employees did not
cease. Likewise, payment of their
wages was merely coursed through
Gamo. As to the most determinative
testthe power of control, it is
sufficient that the power to control the
manner of doing the work exists, it
does not require the actual exercise of
such power.[26] In this case, it was in
the exercise of its power of control
when petitioner corporation
transferred the copra workers from
their previous assignments to work

as copraceros. It was also in the

exercise of the same power that
petitioner corporation put Gamo in
charge of the copra workers although
under a different payment
scheme. Thus, it is clear that an
employer-employee relationship has
existed between petitioner corporation
and respondents since the beginning
and such relationship did not cease
despite their reassignments and the
change of payment scheme.

As to the last issue, petitioner seeks

our indulgence to declare that Eleonor
has abandoned her work. Petitioner
admitted that Eleonor was its regular
employee.[27]However, it claimed that
she abandoned her work, preferring to
sell and raise pigs instead.

It is well settled that abandonment as

a just and valid ground for dismissal
requires the deliberate and unjustified
refusal of the employee to return for
work. Two elements must be present,
namely: (1) the failure to report for
work or absence without valid or
justifiable reason, and (2) a clear
intention to sever the employeremployee relationship.The second
element is more determinative of the
intent and must be evinced by overt
acts. Mere absence, not being
sufficient, the burden of proof rests
upon the

employer to show that the employee

clearly and deliberately intended to
discontinue her employment without
any intention of returning.
[28]
In Samarca v. Arc-Men Industries,

Inc, we held that abandonment is a

matter of intention and cannot lightly
be presumed from certain equivocal
acts.

To constitute abandonment, there

must be clear proof of deliberate and
unjustified intent to sever the
employer-employee relationship.
Clearly, the operative act is still the
employees ultimate act of putting an
end to his employment.[29] However,
an employee who takes steps to
protest her layoff cannot be said to
have abandoned her work because a
charge of abandonment is totally
inconsistent with the immediate filing
of a complaint for illegal dismissal,
more so when it includes a prayer for
reinstatement.[30] When Eleonor filed
the illegal dismissal complaint, it
totally negated petitioners theory of
abandonment.
Also, to effectively dismiss an
employee for abandonment, the
employer must comply with the due
process requirement of sending

notices to the employee. In Brahm

Industries, Inc. v. NLRC,[31] we ruled
that this requirement is not a mere
formality that may be dispensed with
at will. Its disregard is a matter of
serious concern since it constitutes a
safeguard of the highest order in
response to mans innate sense of
justice.[32] Petitioner was not able to
send the necessary notice
requirement to Eleonor. Petitioners
belated claim that it was not able to
send the notice of infraction prior to
the filing of the illegal dismissal case
cannot simply unacceptable.[33] Based
on the foregoing, Eleonor did not
abandon her work.

WHEREFORE, the petition

is DENIED. The Decision of the Court
of Appeals is AFFIRMED. Cost against
petitioner.

SO ORDERED.