Labor Digest Case 193-200, 234 Final.docx

XXV. GUIBONE, CARMELA C. 193. SAMEER OVERSEAS PLACEMENT AGENCY, INC. vs. JOY C. CABILES, G.R. No. 170139, August 5, 2014 FACTS: Petitioner, Sameer Overseas Placement Agency, Inc., is a recruitment and placement agency. Respondent Joy Cabiles was hired thus signed a one-year employment contract for Taiwan Wacoal, Co. Ltd. (Wacoal) on June 26, 1997. She alleged that in her employment contract, she agreed to work as quality control for one year. In Taiwan, she was asked to work as a cutter. Sameer claims that on July 14, 1997, a certain Mr. Huwang from Wacoal informed Joy, without prior notice, that she was terminated and that “she should immediately report to their office to get her salary and passport.” She was asked to “prepare for immediate repatriation.” Joy claims that Wacoal deducted NT$3,000 to cover her plane ticket to Manila. On October 15, 1997, Joy filed a complaint for illegal dismissal with the NLRC against petitioner and Wacoal. LA dismissed the complaint. NLRC reversed LA’s decision. CA affirmed the ruling of the National Labor Relations Commission finding respondent illegally dismissed and awarding her three months’ worth of salary, the reimbursement of the cost of her repatriation, and attorney’s fees ISSUE: WON Cabiles was entitled to the unexpired portion of her salary due to illegal dismissal. HELD: YES. The Court held that the award of the three-month equivalent of respondent’s salary should be increased to the amount equivalent to the unexpired term of the employment contract. In Serrano v. Gallant Maritime Services, Inc. and Marlow Navigation Co., Inc., this court ruled that the clause “or for three (3) months for every year of the unexpired term, whichever is less” is unconstitutional for violating the equal protection clause and substantive due process. A statute or provision which was declared unconstitutional is not a law. It “confers no rights; it imposes no duties; it affords no protection; it creates no office; it is inoperative as if it has not been passed at all.” The Court said that they are aware that the clause “or for three (3) months for every year of the unexpired term, whichever is less” was reinstated in Republic Act No. 8042 upon promulgation of Republic Act No. 10022 in 2010. Ruling on the constitutional issue In the hierarchy of laws, the Constitution is supreme. No branch or office of the government may exercise its powers in any manner inconsistent with the Constitution, regardless of the existence of any law that supports such exercise. The Constitution cannot be trumped by any other law. All laws must be read in light of the Constitution. Any law that is inconsistent with it is a nullity. Thus, when a law or a provision of law is null because it is inconsistent with the Constitution, the nullity cannot be cured by reincorporation or reenactment of the same or a similar law or provision. A law or

provision of law that was already declared unconstitutional remains as such unless circumstances have so changed as to warrant a reverse conclusion. The Court observed that the reinstated clause, this time as provided in Republic Act. No. 10022, violates the constitutional rights to equal protection and due process.96 Petitioner as well as the Solicitor General have failed to show any compelling change in the circumstances that would warrant us to revisit the precedent. The Court declared, once again, the clause, “or for three (3) months for every year of the unexpired term, whichever is less” in Section 7 of Republic Act No. 10022 amending Section 10 of Republic Act No. 8042 is declared unconstitutional and, therefore, null and void.

194. ZENAIDA PAZ v. NORTHERN TOBACCO REDRYING CO., INC., AND/OR ANGELO ANG, G.R. No. 199554, February 18, 2015 FACTS: NTRCI hired Zenaida Paz (Paz) sometime in 1974 as a seasonal sorter, paid P185.00 daily. NTRCI regularly re-hired her every tobacco season since then. She signed a seasonal job contract at the start of her employment and a pro-forma application letter prepared by NTRCI in order to qualify for the next season. On May 18, 2003,6 Paz was 63 years old when NTRCI informed her that she was considered retired under company policy.7 A year later, NTRCI told her she would receive P12,000.00 as retirement pay.8cralawred Paz, with two other complainants, filed a Complaint for illegal dismissal against NTRCI. NTRCI countered that the CBA was not applicable to them, thus, NTRCI computed their retirement pay as seasonal workers. ISSUE: WON Paz is a regular or seasonal employee. RULING: The nature of one’s employment does not depend solely on the will or word of the employer. Nor on the procedure for hiring and the manner of designating the employee, but on the nature of the activities to be performed by the employee, considering the employer's nature of business and the duration and scope of work to be done. In the case at bar, while it may appear that the work of petitioners is seasonal, inasmuch as petitioners have served the company for many years, some for over 20 years, performing services necessary and indispensable to LUTORCO’s business, serve as badges of regular employment. Moreover, the fact that petitioners do not work continuously for one whole year but only for the duration of the tobacco season does not detract from considering them in regular employment since in a litany of cases this Court has already settled that seasonal workers who are called to work from time to time and are temporarily laid off during off-season are not separated from service in said period, but are merely considered on leave until reemployed. For respondents to be excluded from those classified as regular employees, it is not enough that they perform work or services that are seasonal in nature. They must have also been employed only for the duration of one season. . . . Evidently, petitioners employed respondents for more than one season. Therefore, the general rule of regular employment is applicable. Respondent NTRCI engaged the services of petitioner Paz as a seasonal sorter50 and had been regularly rehired from 1974,51 until she was informed in 2003 that she was being retired under company policy.52cralawred The services petitioner Paz performed as a sorter were necessary and indispensable to respondent NTRCI’s business of flue-curing and redrying tobacco leaves. She was also regularly rehired as a sorter during the tobacco seasons for 29 years since 1974. These considerations taken together allowed the conclusion that petitioner Paz was a regular seasonal employee, entitled to rights under Article 27953 of the Labor Code Procedurally, (1) if the dismissal is based on a just cause under Article 282, the employer must give the employee two written notices and a hearing or opportunity to be heard if requested by the employee before

terminating the employment: a notice specifying the grounds for which dismissal is sought a hearing or an opportunity to be heard and after hearing or opportunity to be heard, a notice of the decision to dismiss; and (2) if the dismissal is based on authorized causes under Articles 283 and 284, the employer must give the employee and the Department of Labor and Employment written notices 30 days prior to the effectivity of his separation. From the foregoing rules four possible situations may be derived: (1) the dismissal is for a just cause under Article 282 of the Labor Code, for an authorized cause under Article 283, or for health reasons under Article 284, and due process was observed; (2) the dismissal is without just or authorized cause but due process was observed; (3) the dismissal is without just or authorized cause and there was no due process; and (4) the dismissal is for just or authorized cause but due process was not observed. In the first, the dismissal is undoubtedly valid and the employer will not suffer any liability. In the second and third situations where the dismissals are illegal, Article 279 mandates that the employee is entitled to reinstatement without loss of seniority rights and other privileges and full backwages. In the fourth situation, the dismissal should be upheld. While the procedural infirmity cannot be cured, it should not invalidate the dismissal. However, the employer should be held liable for non-compliance with the procedural requirements of due process. Petitioner Paz’s case does not fall under the fourth situation but under the third situation on illegal dismissal for having no just or authorized cause and violation of due process, since Respondent NTRCI had considered petitioner Paz retired at the age of 63 before she reached the compulsory age of 65. Paz, being a regular seasonal employee is entitled to full backwages, retirement pay and financial assistance was provided in line with the Doctrine of Compassionate Justice.

195. ELVIRA ABASOLO, ET AL, vs. NLRC, LABOR ARBITER RICARDO N. OLAIREZ, LA UNION TOBACCO REDRYING CORPORATION and SEE LIN CHAN, G.R. No. 118475. November 29, 2000 FACTS: Private respondent La Union Tobacco Redrying Corporation (LUTORCO), which is owned by private respondent See Lin Chan, is engaged in the business of buying, selling, redrying and processing of tobacco leaves and its by-products. Petitioners have been under the employ of LUTORCO for several years until their employment with LUTORCO was abruptly interrupted sometime in March 1993 when Compania General de Tabaccos de Filipinas (also known as TABACALERA) took over LUTORCO’s tobacco operations. Petitioners were caught unaware of the sudden change of ownership and its effect onthe status of their employment, though it was alleged that TABACALERA would assume and respect the seniority rights of the petitioners.On March 17, 1993, the disgruntled employees instituted before the NLRC Regional Arbitration Branch No. 1, San Fernando, La Union a complaint for separation pay against private respondent LUTORCO on the ground that there was a termination of their employment due to the closure of LUTORCO as a result of the sale and turnover to TABACALERA. Private respondent corporation raised as its defense that it is exempt from paying separation pay and denied that it terminated the services of the petitioners; and that it stopped its operations due to the absence of capital and operating funds caused by losses incurred from 1990 to 1992and absence of operating funds for 1993, coupled with adverse financial conditions and downfall of prices. Respondent corporation also contends that the employees are seasonal worker, thus not entitled for separation pay. Labor Arbiter Ricardo N. Olairez rendered his decision dismissing the complaint for lack of merit. The NLRC affirmed the decision of the Labor Arbiter. ISSUE: WON petitioners are regular employees entitled to separation pay. RULING: The primary standard, therefore, of determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. Also if the employee has been performing the job for at least a year, even if the performance is not continuous and merely intermittent, the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is considered regular, but only with respect to such activity, and while such activity exists. In the case at bar, while it may appear that the work of petitioners is seasonal, inasmuch as petitioners have served the company for many years, some for over 20 years, performing services necessary and indispensable to LUTORCO’s business, serve as badges of regular employment. Moreover, the fact that petitioners do not work continuously for one whole year but only for the duration of the tobacco season does not detract from considering them in regular employment since in a litany of cases this Court has already settled that seasonal workers who are called to work from time to time and are temporarily laid off during off-season are not separated from service in said period, but are merely considered on leave until re-employed.

196. ROMEO BASAN, ET AL, vs. COCA-COLA BOTTLERS PHILIPPINES, G.R. No. 174365-66, February 4, 2015 FACTS: On February 18, 1997, petitioners Romeo Basan, Danilo Dizon, Jaime L. Tumabiao, Jr., Roberto Dela Rama,Jr., Ricky S. Nicolas, Crispulo D. Donor, Galo Falguera filed a complaint for illegal dismissal with money claims against respondent Coca-Cola Bottlers Philippines, alleging that respondent dismissed them without just cause and prior written notice required by law Respondent corporation, however, countered that it hired petitioners as temporary route helpers to act as substitutes for its absent regular route helpers merely for a fixed period in anticipation of the high volume of work in its plants or sales offices. As such, petitioners’ claims have no basis for they knew that their assignment as route helpers was temporary in duration. Labor Arbiter ruled in favor of petitioners and found that since they were performing activities necessary and desirable to the usual business of petitioner for more than the period for regularization, petitioners are considered as regular employees. The NLRC affirmed. It stressed that nowhere in the records of the case was it shown that petitioners were hired as project or seasonal employees, respondent having failed to submit any contract of project or other similar proof thereof. ISSUE: WON the routine helpers are regular employees, thus, illegally dismissed? HELD: YES. The court stated that had already been resolved in Magsalin v. National Organization of Working Men, wherein the Court has categorically declared that the nature of work of route helpers hired by Coca Cola Bottlers Philippines, Inc. is necessary and desirable in its usual business or trade thereby qualifying them as regular employees, to wit: Coca-Cola Bottlers Phils., Inc., is one of the leading and largest manufacturers of softdrinks in the country. Respondent workers have long been in the service of petitioner’s company. Respondent workers, when hired, would go with route salesmen on board delivery trucks and undertake the laborious task of loading and unloading softdrink products of petitioner’s company to its various delivery points. In determining whether an employment should be considered regular or non-regular, the applicable test is the reasonable connection between the particular activity performed by the employee in relation to the usual business or trade of the employer. The standard, supplied by the law itself, is whether the work undertaken is necessary or desirable in the usual business or trade of the employer, a fact that can be assessed by looking into the nature of the services rendered and its relation to the general scheme under which the business or trade is pursued in the usual course. It is distinguished from a specific undertaking that is divorced from the normal activities required in carrying on the particular business or trade. But, although the work to be performed is only for a specific projector seasonal, where a person thus engaged has been performing the job for at least one year, even if the performance is not continuous or is merely intermittent, the law deems the repeated and continuing need for its performance as being sufficient to indicate the necessity or desirability of that activity to the business

or trade of the employer. The employment of such person is also then deemed to be regular with respect to such activity and while such activity exists.

197. ABS-CBN BROADCASTING CORPORATION, vs. MARLYN NAZARENO, MERLOU GERZON, JENNIFER DEIPARINE, and JOSEPHINE LERASAN, G.R. No. 164156, September 26, 2006 FACTS: Petitioner ABS-CBN Broadcasting Corporation (ABS-CBN) is engaged in the broadcasting business and owns a network of television and radio stations, whose operations revolve around the broadcast, transmission, and relay of telecommunication signals. It sells and deals in or otherwise utilizes the airtime it generates from its radio and television operations. It has a FRANCHISE as a broadcasting company, and was likewise issued a license and authority to operate by the National Telecommunications Commission. Petitioner employed respondents Nazareno, Gerzon, Deiparine, and Lerasan as production assistants (PAs) on different dates. They were assigned at the news and public affairs, for various radio programs in the Cebu Broadcasting Station. On December 19, 1996, petitioner and the ABS-CBN Rank-and-File Employees executed a Collective Bargaining Agreement (CBA) to be effective during the period from December 11, 1996 to December 11, 1999. However, since petitioner refused to recognize PAs as part of the bargaining unit, respondents were not included to the CBA. On October 12, 2000, respondents filed a Complaint for Recognition of Regular Employment Status, Underpayment of Overtime Pay, Holiday Pay, Premium Pay, Service Incentive Pay, Sick Leave Pay, and 13th Month Pay with Damages against the petitioner before the NLRC. The Labor Arbiter rendered judgment in favor of the respondents, and declared that they were regular employees of petitioner as such, they were awarded monetary benefits. NLRC affirmed the decision of the Labor Arbiter. Petitioner filed a motion for reconsideration but CA dismissed it. ISSUE: WON the respondents were considered regular employees of ABS-CBN. RULING: YES. The respondents are regular employees of ABS-CBN. It was held that where a person has rendered at least one year of service, regardless of the nature of the activity performed, or where the work is continuous or intermittent, the employment is considered regular as long as the activity exists, the reason being that a customary appointment is not indispensable before one may be formally declared as having attained regular status. The test is whether the Employee is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of work performed and its relation to the scheme of the particular business or trade in its entirety. Also, if the employee has been performing the job for at least a year, even if the performance is not continuous and merely intermittent, the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is considered regular, but only with respect to such activity and while such activity exists. Additionally, respondents cannot be considered as project or program employees because no evidence was presented to show that the duration and scope of the project were determined or specified at the time of their engagement. In the case at bar, however, the employer-employee relationship between petitioner and respondents has been proven. In the selection and engagement of respondents, no peculiar or unique skill, talent or celebrity status was required from them because they were merely hired through petitioner’s personnel department just like any ordinary employee. Respondents did not have the power to bargain for huge talent fees, a circumstance negating independent contractual relationship. Respondents are highly

dependent on the petitioner for continued work. The degree of control and supervision exercised by petitioner over respondents through its supervisors negates the allegation that respondents are independent contractors. The presumption is that when the work done is an integral part of the regular business of the employer and when the worker, relative to the employer, does not furnish an independent business or professional service, such work is a regular employment of such employee and not an independent contractor. As regular employees, respondents are entitled to the benefits granted to all other regular employees of petitioner under the CBA . Besides, only talent-artists were excluded from the CBA and not production assistants who are regular employees of the respondents. Moreover, under Article 1702 of the New Civil Code: “In case of doubt, all labor legislation and all labor contracts shall be construed in favor of the safety and decent living of the laborer.”

198. Universal Robina Sugar Milling Corporation v. Elmer Albay et al., G.R. No. 218172 March 16, 2016 FACTS: Sometime in 1997, the Union filed a complaint against petitioner for violation of labor standards before the DOLE. After due proceedings, the DOLE found petitioner liable to the members of the Union, issued a Writ of Execution to enforce the said ruling. Thus, DOLE Sheriff, went to petitioner's premises to serve the writ to petitioner's Personnel Manager, but the latter refused to comply because of the pending appeal before the Secretary of Labor. On his second attempt to serve the writ at the petitioner’s premises, Sheriff Calinawan sought the help of the Union Officers, including respondents, in its enforcement. Despite the refusal to receive the writ, Sheriff Calinawan and respondents still effected a levy on one of petitioner's forklifts, took it outside the company premises, and deposited it at the municipal hall for safekeeping. Due to the foregoing incidents, petitioner issued a Notice of Offense to each of the respondents, requiring them to explain in writing why no disciplinary action should be taken against them. Thereafter, petitioner issued a Notice of Administrative Investigation to each of the respondents, charging them of stealing company property, fraudulent acquisition or release to other persons of company property, unauthorized possession/use of company property, unauthorized operation of company equipment, and serious misconduct during official working hours or within company premises. After due investigation, petitioner furnished respondents with a Notice of Dismissal for being found guilty as charged. This prompted the respondents to file a complaint for illegal dismissal, unfair labor practice and recovery of damages. ISSUES: 1. Whether or not the respondents were illegally dismissed. YES 2. WON entitled to reinstatement and backwages, despite being illegally dismissed. NO RULING: Respondents were illegally dismissed. Misconduct is defined as an improper or wrong conduct. It is a transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. For serious misconduct to be a just cause for dismissal, the concurrence of the following elements is required: (a) the misconduct must be serious; (b) it must relate to the performance of the employee's duties showing that the employee has become unfit to continue working for the employer; and (c) it must have been performed with wrongful intent. Respondents committed some form of misconduct when they assisted the sheriff in in effecting the levy on the forklift and depositing the same to the municipal hall for safekeeping as they operated the forklift and took it out of company premises, all without the authority and consent from petitioner or any of its officers.However, they did not perform the said act with intent to gain but rather of the mistaken belief that they were merely helping in the enforcement of the writ to collect what is due them as a matter of right.

In this light, the Court upheld the right of the petitioner to impose some disciplinary actions against the respondents, but nevertheless, held that respondents should not have been dismissed for dismissal was too harsh a penalty. Suspension would have sufficed considering that respondents were not occupying managerial or confidential positions and that it was their first offense in their 14-15 years of service to the company.Hence, dismissal was illegal and reinstatement was in order. Despite the order of reinstatement, the court held that respondents are not entitled to backwages. As a general rule, an illegally dismissed employee is entitled to reinstatement (or separation pay, if reinstatement is not viable) and payment of full backwages. In certain cases, the Court, however, has ordered the reinstatement of the employee without backwages considering the fact that (1) the dismissal of the employee would be too harsh a penalty; and (2)the employer was in good faith in terminating the employee. Respondents were indeed guilty of some form of misconduct and, as such, petitioner was justified in exercising disciplinary action against them. Absent any evidence to the contrary, petitioner's resort to disciplinary proceedings should be presumed to have been done in good faith. Thus, the petitioner was ordered to reinstate the petitioners without backwages, except for respondent Albay, whose conviction as an accomplice to the murder of petitioner's former assistant manager had strained the relationship between him and petitioner and hence should not be reinstated in the company and, instead, be paid separation pay

199. KAY PRODUCTS AND KAY LEE vs. HONORABLE COURT OF APPEALS, KAY PRODUCTS EMPLOYEES UNION, MYRNA ABILA, FLORDELIZA MORANTE and FE REGIDOR, G.R. No. 162472, July 28, 2005 FACTS: The private respondents worked as factory sewers of the petitioner. They, together with other employees planned to form a union. When the petitioner learned of this plan, it announced the the concerned employees will be transferred to an employment agency (Gerico) with promised bigger and better benefits. The were however required to sign resignation letters. The respondents still continued to report to the petitioner's factory and now enjoyed lesser wage rates. The petitioner again informed them that Gerico had been dissolved and as a result they need to sign separate contacts with another corporation (RCVJ). However, some of the employees refused to sign the new contract. Amidst all these developments, the employees were able to form a union. The 73 employees together with the union, filed a complaint alleging unfair labor practice, underpayment and failure to classify then as regulars. Subsequently, these employees were asked to make a 2-week leave without pay and were no longer allowed to return back to work thereafter. Due to this development, the respondents amended the complain to one of illegal dismissal. The Labor Arbiter: There was voluntary resignation, which NLRC affirmed. However, CA ruled that Respondents are regular employees and could only be terminated for just or authorized causes under the Labor Code. ISSUE: WON the private respondents are regular employees RULING: YES. The status of regular employment attaches to the casual worker in the day immediately after the end of his 1st year. There was bad faith with the dismissals entitling respondents to damages. Moreover, petitioner (Kay Lee) is liable solidarily with the corporation due to the termination done with malice and bad faith since she was the one who decided the transfers.

200. MARITES BERNARDO, vs. NATIONAL LABOR RELATIONS COMMISSION & FAR EAST BANK AND TRUST COMPANY, G.R. No. 122917. July 12, 1999 FACTS: Petitioners numbering 43 are deaf–mutes who were hired on various periods from 1988 to 1993 by respondent Far East Bank and Trust Co. as Money Sorters and Counters through a uniformly worded agreement called ‘Employment Contract for Handicapped Workers. Subsequently, they are dismissed. Petitioners maintain that they should be considered regular employees, because their task as money sorters and counters was necessary and desirable to the business of respondent bank. They further allege that their contracts served merely to preclude the application of Article 280 and to bar them from becoming regular employees. Private respondent, on the other hand, submits that petitioners were hired only as “special workers and should not in any way be considered as part of the regular complement of the Bank.”[12] Rather, they were “special” workers under Article 80 of the Labor Code. ISSUE: WON petitioners have become regular employees. HELD: YES. The uniform employment contracts of the petitioners stipulated that they shall be trained for a period of one month, after which the employer shall determine whether or not they should be allowed to finish the 6-month term of the contract. Furthermore, the employer may terminate the contract at any time for a just and reasonable cause. Unless renewed in writing by the employer, the contract shall automatically expire at the end of the term. Respondent bank entered into the aforesaid contract with a total of 56 handicapped workers and renewed the contracts of 37 of them. In fact, two of them worked from 1988 to 1993. Verily, the renewal of the contracts of the handicapped workers and the hiring of others lead to the conclusion that their tasks were beneficial and necessary to the bank. More important, these facts show that they were qualified to perform the responsibilities of their positions. In other words, their disability did not render them unqualified or unfit for the tasks assigned to them. In this light, the Magna Carta for Disabled Persons mandates that a qualified disabled employee should be given the same terms and conditions of employment as a qualified able-bodied person. Section 5 of the Magna Carta provides: “Section 5. Equal Opportunity for Employment.—No disabled person shall be denied access to opportunities for suitable employment. A qualified disabled employee shall be subject to the same terms and conditions of employment and the same compensation, privileges, benefits, fringe benefits, incentives or allowances as a qualified able bodied person.” The fact that the employees were qualified disabled persons necessarily removes the employment contracts from the ambit of Article 80. Since the Magna Carta accords them the rights of qualified able-bodied persons, they are thus covered by Article 280 of the Labor Code, which provides: “ART. 280. Regular and Casual Employment. — The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be

regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, x x x” “The primary standard, therefore, of determining regular employment is the reasonable connection between the particular activity performed by the employee in relation to the usual trade or business of the employer. The test is whether the former is usually necessary or desirable in the usual business or trade of the employer. The connection can be determined by considering the nature of the work performed and its relation to the scheme of the particular business or trade in its entirety. Also if the employee has been performing the job for at least one year, even if the performance is not continuous and merely intermittent, the law deems repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is considered regular, but only with respect to such activity, and while such activity exists.” Respondent bank entered into the aforesaid contract with a total of 56 handicapped workers and renewed the contracts of 37 of them. In fact, two of them worked from 1988 to 1993. Verily, the renewal of the contracts of the handicapped workers and the hiring of others lead to the conclusion that their tasks were beneficial and necessary to the bank. More important, these facts show that they were qualified to perform the responsibilities of their positions. In other words, their disability did not render them unqualified or unfit for the tasks assigned to them. Without a doubt, the task of counting and sorting bills is necessary and desirable to the business of respondent bank. With the exception of sixteen of them, petitioners performed these tasks for more than six months.

234. DR. EMILY M. MAROHOMBSAR, vs. AHMAD E. ALONTO, JR., IN HIS CAPACITY AS PRESIDENT OF THE MINDANAO STATE UNIVERSITY, AND CORAZON BATARA, G.R. No. 93711, February 25, 1991 FACTS: Dr. Emily M. Marohombsar was designated as OIC of the Office of the Vice-Chancellor for Academic Affairs (OVCAA) of Mindanao State University (MSU) Marawi Campus in a concurrent capacity with her position then as VP for External Studies. After sometime, the Office of the Vice-President for External Studies was merged with the OVCAA and, as such, the functions of the former were to be exercised by the latter. Dr. Marohombsar was appointed acting Vice-Chancellor for Academic Affairs on the same day. Ahmad E. Alonto, MSU President, wrote Dr. Marohombsar informing her that he has decided to tap her talent for the MSU system as Vice-President for Academic Affairs which position is under his administrative staff. Dr. Marohombsar answered that she cannot accept the position since she has already started several projects in the OVCAA which she wants to see through. Then, Pres. Alonto designated Professor Macacuna Moslem as Vice-Chancellor for Academic Affairs but the latter did not accept the designation. Pres. Alonto issued Special Order No. 158-P designating Professor Corazon Batara as OIC of the OVCAA., removing Dr. Marohombsar. Thus, this petition. ISSUE: WON Dr. Emily M. Marohombsar, who was appointed Acting Vice-Chancellor for Academic Affairs of the MSU Marawi Campus by MSU President Ahmad Alonto, may be removed from office even without cause? RULING: NO. Dr. Marohombsar was a Permanent Appointment. Her appointment as Acting Vice-Chancellor for Academic Affairs was couched in temporary terms. However, it should have been an ad interim appointment since both the security of tenure of the occupant and the needs of the new office called for the ad interim appointment when the Vice-Presidency for External Studies was abolished and its functions were merged with the Vice-Chancellorship for Academic Affairs. Pres. Alonto cannot use the device of an ambiguous designation to go around the security of tenure principle. ACTING APPOINTMENTS The special order confirmed by the Board of Regents specifically designated Marohombsar as Acting Vice Chancellor for Academic Affairs. The essence of an acting appointment is its temporary nature. It is a stop gap measure intended to fill an office for a limited time until a permanent appointment is extended or a new appointee is chosen. (Austria v. Amante). The nature of an acting appointment limits not only the claims of the appointee to a lengthy tenure but also defines the authority of the appointing power. A public officer appointed in an acting capacity cannot claim that the appointment shall in time ripen into a permanent one. HOWEVER, neither can the appointing power use the principle of temporary appointments to evade or avoid the security of tenure principle in the Constitution and the Civil Service Law.

This is similar to the rule that the head of an office cannot arbitrarily convert permanent positions to primarily confidential items so that he can more freely fire and hire or rehire subordinates at his personal discretion. It is the nature of the functions attached to a position, not the nomenclature or title given by the appointing authority which determines its primarily confidential nature. (Piñero v. Hechanova) For the same reason, the Court may inquire into the true nature of an "acting" appointment to determine whether or not it is used as a device to circumvent the security of tenure principle. There was circumvention of the security of tenure principle. The intent to make Marohombsar serve at the pleasure of the MSU President is obvious. The effect of the merger of the offices was to abolish Marohombsar's permanent office and give her a temporary appointment in the supposedly new office which replaced or absorbed the former office. Another result was the loss by Marohombsar of her permanent status. AD-INTERIM APPOINTMENT There are reasons which indicate that maneuverings by the President cannot be characterized as bona fide. The power to designate is vested in the MSU President pursuant to Sec. 40.5 (par. 22) Art. 4 of the Code of Governance of the MSU. o

Must be less than 1 year.

o

Must be reported to the Board of Regents at the next regular meeting.

o

After the meeting, another designation must be issued if no permanent appointment was made.

o

The earlier designation becomes void as the Board is expected to fill the item permanently, not merely leaving it temporarily occupied.

The power to appoint is vested in the Board of Regents (on the recommendation of the President of the University) pursuant to MSU Charter, RA 1387. If the President merely designates, the Board of Regents does not confirm the designation. Since it is only for the information of the Board, the President's action should be merely "noted." When the Board of Regents confirmed the appointment of Marohombsar on May 16, 1989, it was acting on an ad interim appointment effected by the President. o

If it was a mere designation, it needs no confirmation. The fact that confirmation was needed shows that it is an ad interim one.

o

AD INTERIM APPOINTMENT: one made during the time when the appointing or confirming body is not in session and there is an existing clear and present urgency caused by an impending obstruction or paralyzation of the functions assigned to the office if no immediate appointment is made. (Rodriguez, Jr. v. Quirino)

When the Vice-Presidency for External Studies was abolished and its functions were merged with the ViceChancellorship for Academic Affairs, both the security of tenure of the occupant and the needs of the new office called for the ad interim appointment. Petition GRANTED.