TRAINEE PERIOD HELD AS PROBATIONARY EMPLOYMENT

Oyster Plaza Hotel, et al. Vs. Errol O. Melivo
G.R. No. 217455. October 5, 2016

Facts:

Melivo (Melivo) filed before the NLRC a Complaint for illegal dismissal with prayers for reinstatement and payment of back wages, holiday pay, overtime pay, service incentive leave, and, 13th month pay against petitioners Oyster Plaza Hotel (Oyster Plaza), Rolito Go (Go), and Jennifer Ampel (Ampel). The Summons, together with a copy of the complaint, was served on the petitioners thru registered mail. The said summons ordered the petitioners to appear before the Labor Arbiter (LA) for mandatory conciliation/mediation conferences. The registry return receipt showed that the summons and the copy of the complaint were duly served. The petitioners, however, failed to appear during the scheduled conferences. Thereafter, the case was set for formal hearing and a notice of hearing was sent to the petitioners, requiring them to appear before the LA and file their position paper, with a warning that failure to appear therein would be construed as a waiver of the opportunity to be heard. The notice, however, was returned unserved as there was no one to receive the same. The formal hearing was, thus, reset to February 17, 2010, and a notice of hearing was again sent to the petitioners, wherein they were reminded to file their position paper. The registry return receipt showed that the said notice was received by a certain Charlie Mirafia (Mirana).

At the hearing, however, only Melivo appeared. On even date, Melivo filed his Position Paper, 11 alleging the following: that Oyster Plaza was a business entity engaged in the business of hotel operation, under the ownership/management of Go and Ampel; that in August 2008, Oyster Plaza hired him as a trainee room boy; that in November 2008, Oyster Plaza hired him as a probationary room boy and he was made to sign an employment contract but he was not furnished a copy, that the said contract expired in March 2009 and his work ended; that on April 7, 2009, Oyster Plaza hired him again as a room boy, but without any employment contract or document; and that in September 2009, his supervisor Ampel verbally told him that his contract was expiring, thus, he must stop reporting for work. For the last time, another notice of hearing was again sent to the petitioners with a directive to file their position paper, but it was again returned unserved. Hence, the case was submitted for decision ex parte.

LA Ruling:

The LA ruled that Melivo was illegally dismissed. Considering that Melivo had already rendered six (6) months of service for Oyster Plaza, the LA held that he had become a regular employee by operation of law. The LA stated that having attained the regular employment status, he could only be terminated for a valid cause; and because the petitioners failed to present countervailing evidence to justify Melivo’s dismissal, there could be no other conclusion except that the dismissal was illegal. The LA ordered Oyster Plaza to reinstate Melivo to his previous position and to pay him back wages reckoned from his dismissal on September 15, 2009 until the finality of its decision; his proportionate 13th month pay; and attorney’s fees in the amount equivalent to 10% of the total money claims awarded.

Thereafter, Melivo filed his Motion to Implement Order of Reinstatement. Acting thereon, the LA issued the Writ of Execution 18 on September 21, 2010. On October 21, 2010, the petitioners filed their Motion to Quash (Writ of Execution, dated September 1, 2010)19 arguing that they did not receive the summons, the notices of hearings and the copy of the LA decision. The petitioners averred that they were only able to secure copies of the records on October 14, 2010. Without awaiting the LA’s action on their motion to quash, the petitioners filed an Appeal before the NLRC. In their Appeal Memorandum, the petitioners argued that none of them was served with summons and notices of the November 23, 2009 and December 1, 2009 hearings; that the registry return receipt, dated November 27, 2009, did not bear a legibly written name to determine who received the summons; that the notice for the February 17, 2010 hearing was received by Mirafia, a security guard who was not its employee but merely assigned to it by VICAR Security Agency; that “Oyster Plaza Hotel” was only a name and business style of its owner, Martyniuk Development Corporation (MDC) and, hence, could not be sued because it had no legal personality; that Go was not a stockholder, officer, or director of, and had no connection with, Oyster Plaza and MDC; that Ampel, whose real name was Jennilyn not Jennifer, was a mere assistant desk officer of Oyster Plaza; and that assuming there was valid service of summons, Melivo was not illegally dismissed because he was merely employed for a fixed term, which term already expired. The petitioners also submitted Melivo’ s Contract of Employment as an attachment to their memorandum.

NLRC Ruling:

The NLRC affirmed the Decision of the LA. It observed that the summons and the complaint, which were addressed to “Oyster Plaza Hotel, et al.,” were served upon the petitioners by registered mail and received by them on November 27, 2009. Thus, it was prudent for them to verify the status of the case with the LA. It further explained that the petitioners’ assertion that they had no knowledge on who received the subject processes and pleading did not render the service ineffectual; and that the Rules of Procedure of the NLRC did not specify any person upon whom summons must be served in the event that the respondent was a juridical entity. Thus, Oyster Plaza was bound by its employee’s receipt of the summons.

The NLRC was of the view that the petitioners’ denial of illegal dismissal did not deserve any consideration. It posited that the contract of employment failed to reveal the specific project or any phase of it where he was employed; and that the petitioners failed to submit a report of his termination to the nearest public employment office, as required under Department Order (D. 0.) No. 19. The failure to file a termination report upon the alleged cessation of Melivo’ s employment was an indication that he was not a project employee, but a regular employee. Thus, for want of valid cause for his severance, the NLRC concluded that Melivo was illegally dismissed. The petitioners moved for reconsideration, but their motion was denied by the NLRC.

Aggrieved, the petitioners elevated the case to the CA.

CA Ruling:

The CA dismissed the petition for lack of merit and affirmed the June 21, 2011 NLRC Decision. The appellate court held that the failure to implead MDC in the proceedings before the LA and the NLRC was merely a procedural error which did not affect the jurisdiction of the labor tribunals. The CA observed that the petitioners failed to raise a valid argument, much less present sufficient evidence to show that there was irregularity in the service of summons. It emphasized that the petitioners· alternative argument that Ampel was not authorized to receive the summons bolstered the findings that she indeed received the said summons. It also opined that the provisions of the Rules of Court only had suppletory application to labor cases and, thus, not strictly applied thereto. Finally, it stated that petitioners failed to produce sufficient evidence, such as the company’s General Information Sheet, to show that Go was no longer connected with either MDC or Oyster Plaza. As to the issue of Melivo’s illegal dismissal, the CA held that the petitioners failed to adduce adequate evidence to the contrary. It noted that the petitioners barely argued on the nature of Melivo’s employment and they miserably failed to point specific acts by the NLRC which amounted to grave abuse of discretion.

The petitioners filed their motion for reconsideration, but the same was denied by the CA. Hence, the petition

Issue/s:

1. Whether or not there was valid service of summons
2. Whether or not there was valid dismissal

SC Ruling:

Service of summons in labor cases

In Scenarios, Inc. vs. Vinluan, the Court considered as substantial compliance the service of summons by registered mail at the respondent’s place of business. The Court explained therein that technical rules of procedure were not strictly applied in quasi-judicial proceedings and only substantial compliance was required; and that the notation in the registry receipt that “a registered article must not be delivered to anyone but the addressee, or upon the addressee’s written order” creates the presumption that the persons who received the summons and notice were presumably able to present a written authorization to receive them and, therefore, the notices were presumed to be duly received in the ordinary course of events.

Similarly, in this case, the summons and notices were served by registered mail at the petitioners’ place of business. Thus, the person who received the same was presumed authorized to do so. Consequently, the summons and notices were presumed to be duly served. The burden of proving the irregularity in the service of summons and notices, if any, is on the part of the petitioners. In this case, the petitioners clearly failed to discharge that burden. The Court concurs with the CA that the failure to implead MDC in the proceedings before the LA and the NLRC was merely a procedural error which did not divest the labor tribunals of their jurisdiction.

Non-inclusion of the corporate name in the Complaint did not deprive the tribunal of its jurisdiction

In Pison-Arceo Agricultural Development Corp. vs. NLRC (Pison-Arceo), it was held that he non-inclusion of the corporate name of petitioner in the case before the executive labor arbiter was a mere procedural error which did not at all affect the jurisdiction of the labor tribunals.

By the petitioners’ own admission, Oyster Plaza was owned and operated by MDC. This was further underscored in the petitioners’ Verification/Certification, dated December 8, 2011, attached to their petition before the CA. It was stated therein that “Elsa Go is the authorized representative of petitioner Oyster Plaza Hotel/Martyniuk Development Corporation.” Applying the pronouncement in Pison-Arceo, the failure to include MDC’s corporate name in the complaint did not necessarily result in the loss of the labor tribunals’ jurisdiction over the former. The said failure was but a procedural blunder which did not render the labor proceedings void, so long as the dictates of justice were substantially complied with.

Opportunity to be heard vs. absolute absence of the opportunity

The essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to explain one’s side or to seek a reconsideration of the action or ruling complained of. What the law prohibits is the absolute absence of the opportunity to be heard; hence, a party cannot feign denial of due process where he had been afforded the opportunity to present his side. The Court notes that even though the petitioners failed to participate in the proceedings before the LA, they were able to argue their case before the NLRC. The petitioners, through their pleadings, were able to argue their position and submit evidence in support of their position that they did not receive the summons and notices from the LA; and that Melivo was not illegally dismissed. Evidently, the petitioners’ contention that they were denied due process is devoid of any merit.

Trainee held as probationary employee

The present case involves substantially the same factual considerations as that of Holiday Inn Manila vs. NLRC (Holiday lnn). In this case, Melivo was first hired as a trainee in August 2008. His training lasted for three (3) months. As a room boy, his performance was certainly under observation. Thus, it can be reasonably deduced that Melivo’ s probationary employment actually started in August 2008, at the same time he started working as a trainee. Therefore, when he was re-hired as room boy after his training period sometime in November 2008 he attained regular employment status.

Project employment

The petitioners’ contention that Melivo was hired as a project employee is untenable. Under Article 280 of the Labor Code, as amended, 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. Here, the contract of employment failed to indicate the specific project or undertaking for which Oyster Plaza sought Melivo’s services. Moreover, as correctly noted by the NLRC, the petitioners failed to submit a report of Melivo’s termination to the nearest public employment office, as required under Section 2 of D.0. No. 19.