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G.R. No. 114734 March 31, 2000

VIVIAN Y. IMBUIDO, petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION, INTERNATIONAL INFORMATION SERVICES,
INC. and GABRIEL LIBRANDO, respondents.

This special civil action for certiorari seeks to set aside the Decision1 of the National Labor Relations
Commission (NLRC) promulgated on September 27, 1993 and its Order dated January 11, 1994, which denied
petitioner's motion for reconsideration.

Petitioner was employed as a data encoder by private respondent International Information Services, Inc., a
domestic corporation engaged in the business of data encoding and keypunching, from August 26, 1988 until
October 18, 1991 when her services were terminated. From August 26, 1988 until October 18, 1991, petitioner
entered into thirteen (13) separate employment contracts with private respondent, each contract lasting only far
a period of three (3) months. Aside from the basic hourly rate, specific job contract number and period of
employment, each contract contains the following terms and conditions:

a. This Contract is for a specific project/job contract only and shall be effective for the period covered as
above-mentioned unless sooner terminated when the job contract is completed earlier or withdrawn by
client, or when employee is dismissed for just and lawful causes provided by law. The happening of any
of these events will automatically terminate this contract of employment.

b. Subject shall abide with the Company's rules and regulations for its employees attached herein to
form an integral part hereof.

c. The nature of your job may require you to render overtime work with pay so as not to disrupt the
Company's commitment of scheduled delivery dates made on said job contract.2

In September 1991, petitioner and twelve (12) other, employees of private respondent allegedly agreed to the
filing of a petition for certification election involving the rank-and-file employees of private respondent.3 Thus,
on October 8, 1991, Lakas Manggagawa sa Pilipinas (LAKAS) filed a petition for certification election with the
Bureau of Labor Relations (BLR), docketed as NCR-OD-M-9110-128.4

Subsequently, on October 18, 1991, petitioner received a termination letter from Edna Kasilag, Administrative
Officer of private respondent, allegedly "due to low volume of work."5

Thus, on May 25, 1992, petitioner filed a complaint for illegal dismissal with prayer for service incentive leave
pay and 13th month differential pay, with the National Labor Relations Commission, National Capital Region,
Arbitration Branch, docketed as NLRC-NCR Case No. 05-02912-92.6

In her position paper dated August 3, 1992 and filed before labor arbiter Raul T. Aquino, petitioner alleged that
her employment was terminated not due to the alleged low volume of work but because she "signed a petition
for certification election among the rank and file employees of respondents," thus charging private respondent
with committing unfair labor practices. Petitioner further complained of non-payment of service incentive leave
benefits and underpayment of 13th month pay.7

On the other hand, private respondent, in its position paper filed on July 16, 1992, maintained that it had valid
reasons to terminate petitioner's employment and disclaimed any knowledge of the existence or formation of a
union among its rank-and-file employees at the time petitioner's services were terminated.8 Private respondent
stressed that its business ". . . relies heavily on companies availing of its services. Its retention by client
companies with particular emphasis on data encoding is on a project to project basis,"9 usually lasting for a
period of "two (2) to five (5) months." Private respondent further argued that petitioner's employment was for a
"specific project with a specified period of engagement." According to private respondent, ". . . the certainty of
the expiration of complainant's engagement has been determined at the time of their (sic) engagement (until 27
November 1991) or when the project is earlier completed or when the client withdraws," as provided in the
contract. 10 "The happening of the second event [completion of the project] has materialized, thus, her contract
of employment is deemed terminated per the Brent School ruling." 11 Finally, private respondent averred that
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petitioner's "claims for non-payment of overtime time (sic) and service incentive leave [pay] are without factual
and legal basis." 12

In a decision dated August 25, 1992, labor arbiter Raul T. Aquino, ruled in favor of petitioner, and accordingly
ordered her reinstatement without loss of seniority rights and privileges, and the payment of backwages and
service incentive leave pay. The dispositive part of the said decision reads:

WHEREFORE, responsive to the foregoing, judgment is hereby rendered ordering respondents to

immediately reinstate complainant [petitioner herein] as a regular employee to her former position
without loss of seniority rights and privileges and to pay backwages from the time of dismissal up to the
date of this decision, the same to continue until complainant ['s] [petitioner herein] actual reinstatement
from (sic) the service. Respondents are likewise ordered to pay complainant [petitioner herein] service
incentive leave pay computed as follows:

Backwages:

10/18/91 - 8/25/92 = 10.23 mos.

P118.00 x 26 x 10.23 mos. = P31, 385.64

Service Incentive Leave Pay

1989 = P89.00 x 5 days = P445.00
1990 = 106 x 5 days = P530.00
1991 = 118 x 5 days = P590.00

P 1,565.00

Total P 32,950.64
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SO ORDERED. 13

In his decision, the labor arbiter found petitioner to be a regular employee, ruling that "[e]ven if herein
complainant [petitioner herein] had been obstensively (sic) hired for a fixed period or for a specific undertaking,
she should be considered as [a] regular employee of the respondents in conformity with the provisions (sic) laid
down under Article 280 of the Labor Code," 14 after finding that ". . . [i]t is crystal clear that herein complainant
[petitioner herein] performed a job which are (sic) usually necessary or desirable in the usual business of
respondent [s]." 15 The labor arbiter further denounced ". . . the purpose behind the series of contracts which
respondents required complainant to execute as a condition of employment was to evade the true intent and
spirit of the labor laws for the workingmen . . . ." 16 Furthermore, the labor arbiter concluded that petitioner was
illegally dismissed because the alleged reason for her termination, that is, low volume of work, is "not among
the just causes for termination recognized by law," 17 hence, he ordered her immediate reinstatement without
loss of seniority rights and with full backwages. With regard to the service incentive leave pay, the labor arbiter
decided ". . . to grant the same for failure of the respondents to fully controvert said claims." 18 Lastly, the labor
arbiter rejected petitioner's claim for 13th month pay ". . . since complainant [petitioner herein] failed to fully
substantiate and argued (sic) the same." 19

On appeal, the NLRC reversed the decision of the labor arbiter in a decision 20 promulgated on September 27,
1993, the dispositive part of which reads:

WHEREFORE, the appealed decision is hereby set aside. The complaint for illegal dismissal is hereby
dismissed for being without merit. Complainant's [petitioner herein] claim for service incentive leave
pay is hereby remanded for further arbitration.

SO ORDERED. 21
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The NLRC ruled that "[t]here is no question that the complainant [petitioner herein], viewed in relation to said
Article 280 of the [Labor] Code, is a regular employee judging from the function and/or work for which she was
hired. . . . But this does not necessarily mean that the complainant [petitioner herein] has to be guaranteed a
tenurial security beyond the period for which she was hired." 22 The NLRC held that ". . . the complainant
[petitioner herein], while hired as a regular worker, is statutorily guaranteed, in her tenurial security, only up to
the time the specific project for which she was hired is completed." 23 Hence, the NLRC concluded that "[w]ith
the specific project "at RCBC 014" admittedly completed, the complainant [petitioner herein] has therefore no
valid basis in charging illegal dismissal for her concomittant (sic) dislocation." 24

In an Order dated January 11, 1994, the NLRC denied petitioner's motion for reconsideration. 25

In this petition for certiorari, petitioner, for and in her behalf, argues that (1) the public respondent "committed
grave abuse of discretion when it ignored the findings of Labor Arbiter Raul Aquino based on the evidence
presented directly before him, and when it made findings of fact that are contrary to or not supported by
evidence," 26 (2) "[p]etitioner was a "regular employee," NOT a "project employee" as found by public
respondent NLRC," 27 (3) "[t]he termination of petition (sic) was tainted with unfair labor practice," 28 and (4)
the public respondent "committed grave abuse of discretion in remanding the awarded service incentive leave
pay for further arbitration." 29

The petition is impressed with merit.

We agree with the findings of the NLRC that petitioner is a project employee. The principal test for determining
whether an employee is a project employee or a regular employee is whether the project employee was assigned
to carry out a specific project or undertaking, the duration and scope of which were specified at the time the
employee was engaged for that project. 30 A project employee is one whose 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. 31 In the instant case, petitioner was engaged to perform activities
which were usually necessary or desirable in the usual business or trade of the employer, as admittedly,
petitioner worked as a data encoder for private respondent, a corporation engaged in the business of data
encoding and keypunching, and her employment was fixed for a specific project or undertaking the completion
or termination of which had been determined at the time of her engagement, as may be observed from the series
of employment contracts 32 between petitioner and private respondent, all of which contained a designation of
the specific job contract and a specific period of employment.1âwphi1.nêt

However, even as we concur with the NLRC's findings that petitioner is a project employee, we have reached a
different conclusion. In the recent case of Maraguinot, Jr. vs. NLRC, 33 we held that "[a] project employee or a
member of a work pool may acquire the status of a regular employee when the following concur:

1) There is a continuous rehiring of project employees even after [the] cessation of a project; 34
and

2) The tasks performed by the alleged "project employee" are vital, necessary and indispensable
to the usual business or trade of the employer. 35

The evidence on record reveals that petitioner was employed by private respondent as a data encoder,
performing activities which are usually necessary or desirable in the usual business or trade of her employer,
continuously for a period of more than three (3) years, from August 26, 1988 to October 18, 1991 36 and
contracted for a total of thirteen (13) successive projects. We have previously ruled that "[h]owever, the length
of time during which the employee was continuously re-hired is not controlling, but merely serves as a badge of
regular employment." 37 Based on the foregoing, we conclude that petitioner has attained the status of a regular
employee of private respondent.

At this point, we reiterate with emphasis that:

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At this time, we wish to allay any fears that this decision unduly burdens an employer by imposing a
duty to re-hire a project employee even after completion of the project for which he was hired. The
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import of this decision is not to impose a positive and sweeping obligation upon the employer to re-hire
project employees. What this decision merely accomplishes is a judicial recognition of the employment
status of a project or work pool employee in accordance with what is fait accompli, i.e., the continuous
re-hiring by the employer of project or work pool employees who perform tasks necessary or desirable
to the employer's usual business or trade. Let it not be said that this decision "coddles" labor, for as Lao
38 has ruled, project or work pool employees who have gained the status of regular employees are
subject to the "no work-no pay" principle, to repeat:

A work pool may exist although the workers in the pool do not receive salaries and are free to seek other
employment during temporary breaks in the business, provided that the worker shall be available when
called to report for a project. Although primarily applicable to regular seasonal workers, this set-up can
likewise be applied to project workers insofar as the effect of temporary cessation of work is concerned.
This is beneficial to both the employer and employee for it prevents the unjust situation of "coddling
labor at the expense of capital" and at the same time enables the workers to attain the status of regular
employees.

The Court's ruling here is meant precisely to give life to the constitutional policy of strengthening the
labor sector, but, we stress, not at the expense of management. Lest it be misunderstood, this ruling does
not mean that simply because an employee is a project or work pool employee even outside the
construction industry, he is deemed, ipso jure, a regular employee. All that we hold today is that once a
project or work pool employee has been: (1) continuously, as opposed to intermittently, re-hired by the
same employer for the same tasks or nature of tasks; and (2) these tasks are vital, necessary and
indispensable to the usual business or trade of the employer, then the employee must be deemed a
regular employee, pursuant to Article 280 of the Labor Code and jurisprudence. To rule otherwise
would allow circumvention of labor laws in industries not falling within the ambit of Policy Instruction
No. Policy Department Order No. 19, hence allowing the prevention of acquisition of tenurial security
by project or work pool employees who have already gained the status of regular employees by the
employer's conduct. 39 (emphasis supplied)

Being a regular employee, petitioner is entitled to security of tenure and could only be dismissed for a just or
authorized cause, as provided in Article 279 of the Labor Code, as amended:

Art. 279. Security of Tenure - In cases of regular employment, the employer shall not terminate the
services of an employee except for a just cause or when authorized by this Title. An employee who is
unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other
privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary
equivalent computed from the time his compensation was withheld from him up to the time of his actual
reinstatement.

The alleged causes of petitioner's dismissal (low volume of work and belatedly, completion of project) are not
valid causes for dismissal under Articles 282 and 283 of the Labor Code. Thus, petitioner is entitled to
reinstatement without loss of seniority rights and other privileges, and to her full backwages, inclusive of
allowances, and to her other benefits or their monetary equivalent computed from the time her compensation
was withheld from her up to the time of her actual reinstatement. However, complying with the principles of
"suspension of work" and "no work, no pay" between the end of one project and the start of a new one, in
computing petitioner's backwages, the amounts corresponding to what could have been earned during the
periods from the date petitioner was dismissed until her reinstatement when private respondent was not
undertaking any project, should be deducted.1âwphi1

With regard to petitioner's claim for service incentive leave pay, we agree with the labor arbiter that petitioner is
entitled to service incentive leave pay, as provided in Article 95 of the Labor Code, which reads:

Art. 95 - Right to service incentive leave -

(a) Every employee who has rendered at least one year of service shall be entitled to a yearly service
incentive leave of five days with pay.

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Having already worked for more than three (3) years at the time of her unwarranted dismissal, petitioner
is undoubtedly entitled to service incentive leave benefits, computed from 1989 until the date of her
actual reinstatement. As we ruled in the recent case of Fernandez vs. NLRC, 40 "[s]ince a service
incentive leave is clearly demandable after one year of service - whether continuous or broken - or its
equivalent period, and it is one of the "benefits" which would have accrued if an employee was not
otherwise illegally dismissed, it is fair and legal that its computation should be up to the date of
reinstatement as provided under Section [Article] 279 of the Labor Code, as amended, which reads:

Art. 279. Security of Tenure. - An employee who is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of
allowances, and to his other benefits or their monetary equivalent computed from the time his
compensation is withheld from him up to the time of his actual reinstatement." (emphasis supplied).

WHEREFORE, the instant petition is GRANTED. The assailed decision of the National Labor Relations
Commission in NLRC NCR CA No. 003845-92 dated September 27, 1993, as well as its Order dated January
11, 1994, are hereby ANNULLED and SET ASIDE for having been rendered with grave abuse of discretion,
and the decision of the Labor Arbiter in NLRC NCR Case No. 05-02912-92 is REINSTATED with
MODIFICATION as above-stated, with regard to computation of back wages and service incentive leave
pay.1âwphi1.nêt

SO ORDERED.