Voluntary Arbitration Cases

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Eternit employees and workers union v. De veyraManeja v. Nlrcsan jose v nlrc 294 s 336 - 1998sanyo v canizares 211 s 361 - 1992vivero v. ca 344 s 268 -2000ludo v saornido 395 s 451 - 2003apalisok v radio philippines 403 s 238 - 2003atlas farms v nlrc 392 s 128 - 2002mindanao v minsteel workers org 424 s 614 - 2004union of nestle workers v nestle 391 s 204 -200 2san miguel foods v san miguel corp employees union -ptwgo gr no 168569 - october 5 2007landtex v ca 529 s 631 - 2007olvido v ca gr no 141166-67 oct 15 2007del monte v saldivar 504 phil 192 2006

sanyo phil 211 s 336 - 1998imperial textile v sampang 219 s 651 - 1993smc v nlrc 255 s 133 -1996continental marble v nlrc 161 s 151 1998

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Voluntary arbitrationTuesday, September 14, 201010:15 AM

boss, chief, manager Page 1
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This Court has consistently ruled that findings of fact of administrative agencies and quasi- judicial bodies which have acquired expertise because their jurisdiction is confined to specificmatters are generally accorded not only respect but even finality and are binding upon this

Court unless there is a showing of grave abuse of discretion, or where it is clearly shown that they were arrived at arbitrarily or in disregard of the evidence on record.

We have also emphasized the rule that decisions of voluntary arbitrators are final andunappealable except when there is want of jurisdiction, grave abuse of discretion, violation of due process, denial of substantial justice, or erroneous interpretation of the law.

Eternit employees and workers union v. De veyraTuesday, September 14, 201010:51 AM



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Union failure to object toemployees termination or retirement does not place disputewithin VA jurisdiction.

G.R. No. 124013 June 5, 1998ROSARIO MANEJA , petitioner,vs .

NATIONAL LABOR RELATIONS COMMISSION and MANILA MIDTOWN HOTEL,respondents.

MARTINEZ, J.:Assailed in this petition for certiorari under Rule 65 of the Revised Rules of Court are theResolution 1 dated June 3, 1994 of the respondent National Labor Relations Commission inNLRC NCR-00-10-05297-90, entitled "Rosario Maneja , Complainant, vs . Manila Midtown Hotel,Respondent ," which dismissed the illegal dismissal case filed by petitioner against privaterespondent company for lack of jurisdiction of the Labor Arbiter over the case; and itsResolution 2 dated October 20, 1995 denying petitioner's motion for reconsideration.Petitioner Rosario Maneja worked with private respondent Manila Midtown Hotel beginningJanuary, 1985 as a telephone operator. She was a member of the National Union of Workers inHotels, Restaurants and Allied Industries (NUWHRAIN) with an existing Collective BargainingAgreement (CBA) with private respondent.In the afternoon of February 13, 1990, a fellow telephone operator, Rowena Loleng received aRequest for Long Distance Call (RLDC) form and a deposit of P500.00 from a page boy of thehotel for a call by a Japanese guest named Hirota Ieda. The call was unanswered. The P500.00deposit was forwarded to the cashier. In the evening, Ieda again made an RLDC and the pageboy collected another P500.00 which was also given to the operator Loleng. The second callwas also unanswered. Loleng passed on the RLDC to petitioner for follow-up. Petitioner monitored the call.On February 15, 1990, a hotel cashier inquired about the P1,000.00 deposit made by Ieda. After a search, Loleng found the first deposit of P500.00 inserted in the guest folio while the seconddeposit was eventually discovered inside the folder for cancelled calls with deposit and officialreceipts.

When petitioner saw that the second RLDC form was not time-stamped, she immediately placedit inside the machine which stamped the date "February 15, 1990." Realizing that the RLDC wasfiled 2 days earlier, she wrote and changed the date to February 13, 1990. Loleng thendelivered the RLDC and the money to the cashier. The second deposit of P500.00 by Ieda waslater returned to him.On March 7, 1990, the chief telephone operator issued a memorandum 3 to petitioner andLoleng directing the two to explain the February 15 incident. Petitioner and Loleng thereafter submitted their written explanation. 4On March 20, 1990, a written report 5 was submitted by the chief telephone operator, with therecommendation that the offenses committed by the operators concerned covered violations of the Offenses Subject to Disciplinary Actions (OSDA): (1) OSDA 2.01: forging, falsifying officialdocument(s), and (2) OSDA 1.11: culpable carelessness negligence or failure to follow

Maneja v. NlrcTuesda y, September 14, 201012:34 PM



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specific instruction(s) or established procedure(s).On March 23, 1990, petitioner was served a notice of dismissal 6 effective April 1, 1990.Petitioner refused to s ign the notice and wrote therein "under protest."Meanwhile, a criminal case 7 for Falsification of Private Documents and Qualified Theft was filedbefore the Office of the City Prosecutor of Manila by private respondent againts Loleng andpetitioner. However, the resolution recommending the filing of a case for estafa was reversed by2nd Asst. City Prosecutor Virgilio M. Patag.On October 2, 1990, petitioner filed a complaint for illegal dismissal against private respondentbefore the Labor Arbiter. The complaint was later amended to include a claim for unpaid wages,

unpaid vacation leave conversion and moral damages.Position papers were filed by the parties. Thereafter, the motion to set the case for hearing filedby private respondent was granted by the Labor Arbiter and trial on the merits ensued.In his decision 8 dated May 29, 1992, Labor Arbiter Oswald Lorenzo found that the petitioner was illegally dismiised. However, in the decision, the Labor Arbiter stated that:Preliminary, we hereby state that on the face of the instant complaint, it is one that revolves on the matter of the implementation and interpretation of existing company policies, which per the last par. of Art. 217 of the Labor Code, as amended, is one within the jurisdic tional ambit of the grievance procedure under theCBA and thereafter, if unresolved, one proper for voluntary arbitration. This observation is re-entrenchedby the fact, that complainant claims she is a member of NUWRAIN with an exist ing CBA with respondenthotel.On this score alone, this case should have dismissed outright. 9

Despite the aforequoted preliminary statement, the Labor Arbiter still assumed jurisdiction "since

Labor Arbiters under Article 217 of the same Labor Code, are conferred original and exclusive jurisdiction of all termination case( sic .)." The dispositive portion of the decision states that:WHEREFORE, premises considered, judgment is hereby renrdered as follows:(1) Declaring complainant's dismissal by respondent hotel as illegally effected;(2) Ordering respondent to immediately reinstate complainant to her previous position without loss of seniority rights;(3) Ordering further respondent to pay complainant the full backwages due her, which is computed asfollows:

3/23/90 - 10/31/90 = 7.26/mos.P2.540 x 7.26/mos. P18,440.4011/1/90 - 1/7/91 = 2.23/mos.P3,224.16 x 2.23/mos. 7,189.871/8/91 - 4/29/92 = 15.7/mos.

P3,589.16 x 15.7/mos. 56,349.89P81,980.08(4) Moreover, respondent is ordered to pay the 13th month pay due the complainant in the amount of P6,831.67 including moral and exemplary damages of P15,000.00 and P10,000.00 respectively, as wellas attorney's fees equivalent to ten (10) percent of the total award herein in the amount of P11,381.17;(5) Finally, all other claims are hereby dismissed for lack of merit.SO ORDERED.Private respondent appealed the decision to the respondent commission on the ground inter aliathat the Laber Arbiter erred in "assuming jurisdiction over the illegal dismissal case after findingthat the case falls within the jurisdictional ambit of the grievance procedure under the CBA, andif unresolved, proper for voluntary arbitration." 10 An Opposition 11 was filed by petitioner.In the assailed Resolution 12 dated June 3, 1994, respondent NLRC dismissed the illegaldismissal case for lack of Jurisdiction of the Labor Arbiter because the same should have

instead been subjected to voluntary arbitration.Petitioner's motion for reconsideration 13 was denied by respondent NLRC for lack of merit.In this petition for certiorari , petitioner ascribes to respondent NLRC grave abuse of discretionin 1. Ruling that the Labor Arbiter was without jurisdic tion over the illegal dismissal case;2. Not ruling that private respondent is estopped by laches from questioning the jurisdic tion of the illegaldismissal case;3. Reversing the decis ion of the Labor Arbiter based on a technicality notwithstanding the merits of thecase.Petitioner contents that Article 217(a)(2) and (c) relied upon by respondent NLRC in divestingthe labor arbiter of jurisdiction over the illegal dismissal case, should be read in conjunction withArticle 261 14 of the Labor Code. It is the view of petitioner that termination cases arising fromthe interpretation or enforcement policies pertaining to violations of Offenses Subject to



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Disciplinary Actions (OSDA), are under the jurisdiction of the voluntary arbitrator only if theseare unresolved in the plant-level grievance machinery. Petitioner insists that her termination isnot an unresolved grievance as there has been no grievance meeting between the NUWHRAINunion and the management. The reason for this, petitioner adds, is that it has been a companypractice that termination cases are not anymore referred to the grievance machinery but directlyto the labor arbiter.In its comment, private respondent argues that the Labor Arbiter should have dismissed theillegal dismissal case outright after finding that it is within the jurisdictional ambit of thegrievance procedure. Moreover, private respondent states that the issue of jurisdiction may be

raised at any time and at any stage of the proceedings even on appeal, and is not in es toppel bylaches as contended by the petitioner.For its part, public respondent, through the Office of the Solicitor General, cited the ruling of thisCourt in Sanyo Philippines Workers Union- PSSLU vs . Caizares 15 in dismissing the case for lack of jurisdiction of the Labor Arbiter.The legal issue in this case is whether or not the Labor Arbiter has jurisdiction over the illegaldismissal case.The respondent Commission, in holding that the Labor Arbiter lacks jurisdiction to hear theillegal dismissal case, cited as basis therefor Article 217 of the Labor Code, as amended byRepublic Act No. 6715. It said:White it is conceded that under Article 217(a), Labor Arbiters shall have original and exclusive jurisdictionover cases involving "termination disputes," the Supreme Court, in a fairy recent case ruled:The procedure introduced in RA 6715 of referring certain grievances originally and exclusively to the

grievance machinery, and when not settled at this level, to a panel of voluntary arbitrators outlined inCBAs does not only include grievances arising from the interpretation or implementation of the CBA butapplies as well to those arising from the implementation of company personnel policies. No other bodyshall take cognizance of these cases. . . . (Sanyo vs . Caizares, 211 SCRA 361,372) 16

We Find that the respondent Commission has erroneously interpreted the aforequoted portionof our ruling in the case of Sanyo , as divesting the Labor Arbiter of jurisdiction in a terminationdispute.Art. 217 of the Labor Code gives us the clue as to the jurisdiction of the Labor Arbiter, to wit:Art. 217. Jurisdiction of Labor Arbiters and the Commission . a) Except as otherwise provided under thisCode the Labor Arbiters shall have original and exclusive jurisdiction to hear and decided within thirty (30)calendar days after the submission of the case by the parties for decision without extension even in theabsence of stenographic notes, the following cases involving all workers, whether agricultural or non-agricultural:1. Unfair labor practice cases;2. Termination disputes ;3. If accompanied with a claim for reinstatement, those cases that workers may file involving wages, ratesof pay, hours of work and other terms and conditions of employment;4. Claims for actual, moral, exemplary and other forms of damages arising from the employer-employeerelations;5. Cases arising from any violation of Article 264 of this Code, including questions involving the legality of strikes and lockouts;6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims, arising from employer-employee relations, including those of persons in domestic or householdservice, involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompanied with a claim for reinstatement.b) The commission shall have exclusive appellate jurisdiction over all cases decided by Labor Arbiters.

c) Cases arising from the interpretation or implementation of collective bargaining agreements and thosearising from the interpretation or enforcement of company personel policies shall be disposed of by theLabor Arbiter by referring the same to the grievance machinery and voluntary arbitration as may beprovided in said agreements.As can be seen from the aforequoted Article, termination cases fall under the original andexclusive jurisdiction of the Labor Arbiter. It should be noted, however, that in the opening thereappears the phrase: "Except as otherwise provided under this Code . . . ." It is paragraph (c) of the same Article which respondent Commission has erroneously interpreted as giving thevoluntary arbitrator jurisdiction over the illegal dismissal case.However, Article 217 (c) should be read in conjunction with Article 261 of the Labor Code whichgrants to voluntary arbitrators original and exclusive jurisdiction to hear and decide allunresolved grievances arising from the interpretation or implementation of the collectivebargaining agreement and those arising from the interpretation or enforcement of company



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personel policies. Note the phrase "unresolved grievances." In the case at bar, the terminationof petitioner is not an unresolved grievance.The stance of the Solicitor General in the Sanyo case is totally the reverse of its posture in thecase at bar. In Sanyo , the Solicitor General was of the view that a distinction should be madebetween a case involving "interpretation or implementation of Collective Bargaining Agreement"or interpretation or "enforcement" of company personel policies, on the one hand and a caseinvolving termination, on the other hand. It argued that the dismissal of the private respondentsdoes not involve an "interpretation or implementation" of a Collective Bargaining Agreement or "interpretation or enforcement" of company personel policies but involves "termination." The

Solicitor General further said that where the dispute is just in the interpretation, implementationor enforcement stage, it may be referred to the grievance machinery set up the CollectiveBargaining Agreement or by voluntary arbitration. Where there was already actual termination,i .e ., violation of rights, it is already cognizable by the Labor Arbiter. 17 We fully agree with thetheory of the Solicitor General in the Sanyo case, which is radically apposite to its position inthis case.Moreover, the dismissal of petitioner does not fall within the phrase "grievance arising from theinterpretation or implementation of collective bargaining agreement and those arising from theinterpretation or enforcement of company personel policies," the jurisdiction of which pertains tothe grievance machinery or thereafter, to a voluntary arbitrator or panel of voluntary arbitrators.It is to be stressed that under Article 260 of the Labor Code, which explains the function of thegrievance machinery and voluntary arbitrator. "(T)he parties to a Collective BargainingAgreement shall include therein provisions that will ensure the mutual observance of its termsand conditions. They shall establish a machinery for the adjustment and resolution of grievances arising from the interpretation or implementation of their Collective BargainingAgreement and those arising from the interpretation or enforcement of company personelpolicies." Article 260 further provides that the parties to a CBA shall name or designate their respective representative to the grievance machinery and if the grievance is unsettled in thatlevel, it shall automatically be refered to the voluntary arbitrators designated in advance by theparties to a CBA of the union and the company. It can thus be deduced that only disputesinvolving the union and the company shall be referred to the grievance machinery or voluntaryarbitrators. 18In the case at bar, the union does not come into the picture, not having objected or voiced anydissent to the dismissal of the herein petitioner. The reason for this, according to petitioner isthat "the practice in said Hotel in cases of termination is that the latter cases are not referred

anymore to the grievance committee;" and that "the terminated employee who wishes toquestion the legality of his termination usually goes to the Labor Arbiter for arbitration, whether the termination arose from the interpretation or enforcement of the company personnel policiesor otherwise." 19As we ruled in Sanyo, "Since there has been an actual termination, the matter falls within the

jurisdiction of the labor Arbiter." The aforequoted doctrine is applicable foursquare in petitioner'scase. The dismissal of the petitioner does not call for the interpretation or enforcement of company personnel policies but is a termination dispute which comes under the jurisdiction of the Labor Arbiter.It should be explained that "company personel policies" are guiding priciples stated in broad,long-range terms that express the philosophy or beliefs of an organization's top authorityregarding personnel matters. They deal with matters affecting efficiency and well-being of employees and include, among others, the procedure in the administration of wages, benefits,promotions, transfer and other personnel movements which are usually not spelled out in thecollective agreement. The usual source of grievances, however, are the rules and regulationsgoverning disciplinary actions. 20The case of Pantranco North Express, Inc. vs . NLRC 21 sheds further light on the issue of

jurisdiction where the Court cited the Sanyo case and quoted the decision of therein Labor Arbiter Olairez in this manner:In our honest opinion we have jurisdic tion over the complaint on the following grounds:First, this is a complaint of illegal dismissal of which original and exclusive jurisdiction under Article 217has been conferred to the labor Arbiters. The interpretation of the CBA or enforcement of the companypolicy is only corollary to the complaint of illegal dismissal. Otherwise, an employee who was on AWOL,or who committed offenses contrary to the personnel policies( sic ) can no longer file a case of illegaldischarge is premised on the interpretation or enforcement of the company policies( sic ).Second. Respondent voluntarily submitted tha case to the jurisdiction of this labor tribunal. It adduced



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arguments to the legality of its act, whether such act may be retirement and/or dismissal, and prayed for reliefs on the merits of the case. A litigant cannot pray for reliefs on the merits and at the same timeattacks( sic ) the jurisdiction of the tribunal. A person cannot have one's cake and eat it too. . . . .As to the second ground, petitioner correctly points out that respondent NLRC should haveruled that private respondent is estopped by laches in questioning the jurisdiction of the Labor Arbiter.Clearly, estoppel lies. The issue of jurisdiction was mooted by herein private respondent's activeparticipation in the proceedings below. In Marquez vs . Secretary of Labor, 22 the Court said:. . . . The active participation of the against whom the act ion was brought, coupled with his failure toobject to the jurisdic tion of the court or quasi-judicial body where the action is pending, is tantamount toan invocation of that jurisdiction and a willingness to abide the resolution of the case and will bar saidparty from later on impugning the court or body's jurisdiction.In the assailed Resolution, 23 respondent NLRC cited La Naval Drug Corporation vs . Court of

Appeals 24 in holding that private respondent is not in estopel. Thus,The operation of the principle of estoppel on the question of jurisdiction seemingly depends upon whether the lower court actually had jurisdic tion or not. If it had no jurisdic tion, but the case was tried and decidedupon the theory that it had jurisdic tion, the parties are not barred, on appeal, from assailing such

jurisdiction, for the same "must exist as a matter of law, and may not be conferred by consent of theparties or by estoppel" (5 C.J.S., 861-863). However, if the lower court had jurisdiction , and the case washeard and decided upon a given theory , such , for instance , as that the court had no jurisdiction , the party who induced it to adopt such theory will not be permitted , on appeal, to assume an inconsistent

position that the lower court had jurisdiction . Here , the principle of estoppel applies . The rule that jurisdic tion is conferred by law, and does not depend upon the will of the parties, has no bearing thereon.

(Emphasis ours)Again, the respondent NLRC has erroneously interpreted our ruling in the La Naval case. Under the said ruling, estoppel lies in this case. Private respondent is stopped from questioning the

jurisdiction of the Labor Arbiter before the respondent NLRC having actively participated in theproceedings before the former. At no time before or during the trial on the merits did privaterespondent assail the jurisdiction of the Labor Arbiter. Private respondent took the cue only fromthe preliminary statement in the decision of the Labor Arbiter, which was a mere obiter , andraised the issue of jurisdiction before the Commission. It was then too late. Estoppel had set in.Turning now to the merits of the case, We uphold the ruling of the Labor Arbiter that petitioner was illegally dismissed.The requisites of a valid dismissal are (1) the dismissal must be for any of the causes expressedin the Article 282 of the Labor Code, 25 and (2) the employee must be given an opportunity to beheard and to defend himself. 26 The substantive and procedural laws must be strictly compliedwith before a worker can be dismissed from his employment because what is at stake is notonly the employee's position but his livelihood. 27Petitioner's dismissal was grounded on culpade carelessness, negligence and failure to followspecific instruction(s) or established procedure(s) under OSDA 1.11; and, having forged or falsified official document(s) under OSDA 2.01.Private respondent blames petitioner for failure to follow established procedure in the hotel on aguest's request for long distance calls. Petitioner, however, explained that the usual or established procedures are not followed by the operators and hotel employees whencircumstances warrant. For instance, the RLDC forms and the deposits are brought by the pageboy directly to the operators instead of the cashiers if the latter are busy and cannot attend tothe same. Furthermore, she avers that the telephone operators are not concious of the serialnumbers in the RLDCs and at times, the used RLDCs are recycled. Even the page boys do notactually check the serial numbers of all RLDCs in one batch, except for the first and the last.On the charge of taking of the money by petitioner, it is to be noted that the second P500.00deposit made by the Japanese guest Ieda was later discovered to be inserted in the folder for cancelled calls with deposit and official receipts. Thus, there exists no basis for personalappropriation by the petitioner of the money involved. Another reason is the alleged tamperingof RLDC No. 862406. 28 While petitioner and her co-operator Loleng admitted that they indeedaltered the date appearing therein from February 15, 1990 to February 13, the same waspurposely made to reflect the true date of the transaction without any malice whatsoever ontheir part.As pointed out by Labor Arbiter Oswald b. Lorenzo, thus:The specifics of the grounds relied by respondent hotel's dismissal of complainant are those stated inAnnex "F" of the latter's POSITION PAPER, which is the Notice of Dismissal, notably:1. OSDA 2.01 Forging, falsifying official documents(s)



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2. OSDA 1.11 Culpable negligence or failure to follow specific instruct ion(s) or establishedprocedure(s)On this score, we are persuated by the complainant's arguments that under OSDA 1.11, infractions of thissort is not without qualifications, which is, that the alleged culpable carelessness, negligence or failure tofollow instruction(s) or established procedure(s), RESULTING IN LOSS OR DAMAGE TO COMPANYPROPERTY. From the facts obtaining in this case, there is no quantum of proof whatsoever, except thegeneral allegations in respondent's POSITION PAPER and other pleadings that loss or damage tocompany property resulted from the charged infraction. To our mind, this is where labor tribunals shouldcome in and help correct interpretation of company policies which in the enforcement thereof wreakshavoc to the const itutional guarantee of security of tenure. Apparently, the exercise of litt le flexibility by

complainant and co-employees which is predicated on good faith should not be taken against them andmore particularly against the complainant herein. In this case, to sustain the generalized charge of respondent hotel under OSDA 1.11 would unduly be sanctioning the imposition of too harsh a penalty which is dismissal.In the same tenor, the respondent's charge under OSDA 1.11 on the alleged falsification of privatedocument is also with a qualification, in that the alleged act of falsification must have been done "INSUCH A WAY AS TO MISLEAD THE USER(S) THEREOF." Again, based on the facts of the complainedact, there appeared no one to have been misled on the change of date from RLDC #862406 FROM 15TO 13 February 1990.As a matter of fact, we are in agreement with the jurisprudence cited by VIRGILIO M. PATAG, the 2 ndAsst . City Prosecutor of the City of Manila, who exculpated complainant MANEJA from the charges of falsification of private documents and qualified theft under IS No. 90-11083 and marked Annex. "H" of complainant's POSITION PAPER, when he ruled that an altercation which makes the document speakthe truth cannot be the foundation of a criminal action. As to the charge of qualified theft, we too are of the

finding, like the city prosecutor above-mentioned that there was no evidence on the part of MANEJA tohave unlawfully taken the P500.00 either from the hotel or from guest IEDA on 13 February 1990 andmoreover, we too, find no evidence that complainant MANEJA had intention to profit thereby nor hadmisappropriated the P500.00 in question. 29

Given the factual circumstances of the case, we cannot deduce dishonesty from the act andomission of petitioner. Our norms of social justice demand that we credit employees with thepresumption of good faith in the performance of their duties, 30 especially petitioner who hasserved private respondent since 1985 up to 1990 without any tinge of dishonesty and was evennamed "Model Employee" for the month of April, 1989. 31Petitioner has been charged with a very serious offense dishonesty. This can irreparablywreck her life as an employee for no employer will take to its bosom a dishonest employee.Dismissal is the supreme penalty that can be meted to an employee and its imposition cannotbe justified where the evidence is ambivalent. 32 It must, therefore, be based on a clear and noton an ambiguous or ambivalent ground. Any ambiguity or ambivalence on the ground reliedupon by an employer in terminating the services of an employee denies the latter his full right tocontest its legality. Fairness cannot countenance such ambiguity or ambivalence. 33An employer can terminate the services of an employee only for valid and just causes whichmust be supported by clear and convincing evidence. The employer has the burden of provingthat the dismissal was indeed for a valid and just cause. 34 Failure to do so result in a findingthat the dismissal wasunjustified. 35Finding that there was no just cause for dismissal of petitioner, we now determine if therudiments of due process have duly accorded to her.Well-settled is the dictum that the twin requirements of notice and hearing constitute theessential elements of due process in the dismissal of employees. It is a cardinal rule in our

jurisdiction that the employer must furnish the employee with two written notice before thetermination of employment can be effected: (a) the first apprises the employee of the particular acts or omissions for which his dismissal is sought; and, (b) the second informs the employee of the employer's decision to dismiss him. The requirement of a hearing, on the other hand, iscomplied with as long as there was an opportunity to be heard, and not necessarily that anactual hearing was conducted. 36In the case at bar, petitioner and her co-operator Loleng were issued a memorandum on March7, 1990. On March 11, 1990, they submitted their written explanation thereto. On March 20,1990, a written report was made with a recommendation that the offences committed by themwere covered by OSDA 1.11 and 2.01. Thereafter, on March 23, 1990, petitioner was servedwith a notice of dismissal for said violations effective April 1, 1990.An examination of the record reveals that no hearing was ever conducted by private respondentbefore petitioner was dismissed. While it may be true that petitioner submitted a written



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explanation, no hearing was actually conducted before her employment was terminated. Shewas not accorded the opportunity to fully defend herself.Consultations or conferences may not be a substitute for the actual holding of a hearing. Everyopportunity and ass istance must be accorded to the employee by the management to enablehom to prepare adequately for his defense, including legal representation. 37 Considering thatpetitioner denied having allegedly taken the second P500.00 deposit of the Japanese guestwhich was eventually found; and, having made the alteration of the date on the second RLDCmerely to reflect the true date of the transaction, these circumstances should have at leastwarranted a separate hearing to enable petitioner to fully ventilate her side. Absent such

hearing, petitioner's right to due process was clearly violated.38

It bears stressing that a worker's employment is properly in the constitutional sense. He cannotbe deprived of his work without due process of law. Substantive due process mandates that anemployee can only be dismissed based on just or authorized causes. Procedural due processrequires further that he can only be dismissed after he has been given an opportunity to beheard. The import of due process necessitates the compliance of these two aspects.Accordingly, we hold that the labor arbiter did not err in awarding full backwages in view of thisfinding that petitioner was dismissed without just cause and without due process.We ruled in the case of Bustamante vs . NLRC 39 that the amount of backwages to be awardedto an illegally dismissed employee must be computed from the time he was dismissed to thetime he is actually reinstated, without deducting the earnings he derived elsewhere pending theresolution of the case.Petitioner is likewise entitled to the thirteenth-month pay. Presidential Decree No.851, asamended by Memorandum Order No. 28, provides that employees are entitled to the thirteenth-month pay benefit regardless of their designation and irrespective of the method by which their wages are paid. 40The award of moral and exemplary damages to petitioner is also warranted where there is lackof due process in effecting the dismissal.Where the termination of the services of an employee is attended by fraud or bad faith on thepart of the employer, as when the latter knowingly made false allegations of a supposed validcause when none existed, moral and exemplary damages may be awarded in favor of theformer. 41The anti-social and oppressive abuse of its right to investigate and dismiss its employeesconstitute a violation of Article 1701 of the New Civil Code which prohibits acts of oppression byeither capital or labor against the other, and Article 21 on human relations. The grant of moral

damages to the employees by reason of such conduct on the part of the company is sanctionedby Article 2219, No. 10 of the Civil Code, which allows recovery of such damages in actionsreffered to in Article 21. 42The award of attorney's fees amounting to ten percent (10%) of the total award by the labor arbiter is justified under Article 111 of the Labor Code.WHEREFORE, premises considered, the petition is GRANTED and the assailed resolutions of the respondent National Labor Relations Commission dated June 3, 1994 and October 20, 1995are hereby REVERSED AND SET ASIDE. The decision dated May 29, 1992 of the Labor Arbiter is therefore REINSTATED.SO ORDERED.Regalado, Puno and Martinez, JJ., concur.Melo, J., is on leave.Footnotes1 Penned by Presiding Commissioner Bartolome S. Carale and concurred in by Commissioner VicenteS.E. Veloso and Commissioner Alberto R.Quimpo (on leave). First Division.2 Ibid 3 Annex "D" of Respondent's Memorandum; Rollo , p. 105.4 Annex "E" of Complainant's Position Paper; Rollo , p. 59; Annex "E" of Respondent's Memorandum;Rollo , p. 106.5 Annex "F" of Respondent's Memorandum: Rollo , pp. 107-108.6 Annex "F" of Complainant's Position Paper; Rollo , p. 60.7 Entitled "Manila Midtown Hotel, Complainant, vs . Rowena Loleng y Sanares, et al ., Respondents."8 Annex "I" of Petition; Rollo , pp.133-144.9 Rollo , p. 136.10 Annex "J" of Petition; Rollo , pp. 145-155.11 Annex "K" of Petition; Rollo , pp. 157-164.



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12 See note 1; Annex "A" of Petition; Rollo , pp. 28-32.13 Annex "B" of Petition; Rollo , pp. 33-39.14 Article. 261. Jurisdiction of Voluntary Arbitrators or panel of Voluntary Arbitrators. The VoluntaryArbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear and decideall unresolved grievances arising from the interpretation of the Collective Bargaining Agreement andthose arising from the interpretation or enforcement of company personnel policies referred to in thepreceding article.15 211 SCRA 361 [1992].16 Resolution of respondent commission dated June 3, 1994; Rollo , pp. 28-32.17 Sanyo, supra .

18 Ibid .19 Petition, Rollo , p. 15.20 San Miguel Corp. vs . National Labor Relations, G.R. No. 108001, March 15, 1996, 255 SCRA 133,140; citing C.A. Azucena, The Labor Code With Comments And Cases, Vol. II, 1993 ed., p. 272.21 G.R. No. 95940, July 24, 1996, 259 SCRA 161, 167-168.22 171 SCRA 337, 346; cited in Stolt-Nielsen Marine Services (phils.), Inc. vs . NLRC , G.R. No. 105396,November 19, 1996, 264 SCRA 307, 319.23 Annex "C" of Petition; Rollo , pp. 41-42.24 236 SCRA 78.25 Article 282 of the Labor Code provides:Art. 282. Termination by employer . An employer may terminate an employment for any of the followingcause:(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorizedrepresentative;(d) Commiss ion of a crime or offence by the employee against the person of his employer or anyimmediate member of his family or duly authorized representative, and(e) Other causes analogous to the foregoing.26 Midas Touch Food Corp. vs . NLRC , G.R. No. 111639, July 29, 1996, 259 SCRA 652, 657; citing Mapalo vs . NLRC , 233 SCRA 266; Pizza Hut/Progressive Development Corp. vs . NLRC , G.R. No.117059, January 29, 1996, 252 SCRA 531, 535 citing Mapalo vs . NLRC , supra .27 Midas Touch Food Corp. vs . NLRC , supra ., 657.28 Annex "C" of Private Respondent's Position Paper, Rollo , p. 90.29 Decision of Labor Arbiter; Rollo , pp. 140-141.30 Pizza Hut/Progressive Development Corp. vs . NLRC , supra ., 539.31 Rollo , pp. 91-92.32 Pizza Hut/Progressive Development Corp. vs . NLRC , supra ., 540.33 Pantranco North Express, Inc. vs . NLRC , G.R. No. 114333, January 24, 1996, 252 SCRA 237,243-244.34 Philippine Long Distance Telephone Company vs . NLRC , et al ., G.R. No. 99030, July 31, 1997.35 Uy vs . National Labor Relations Commission, G.R. No. 117983, September 6, 1996, 261 SCRA 505,512; citing Labor Code, Article 277(b); Golden Donuts, Inc. vs . National Labor Ralations Commission,230 SCRA 153 [1994]; Reyes & Lim Co., Inc. vs . National Labor Relations Commission, 201 SCRA 772,775 [1991].36 Pono vs . NLRC , et al ., G.R. No. 118860, July 17, 1997.37 Ibid .38 Ibid .39 G.R. No. 111651, November 28, 1996, cited in the case of Philippines Long Distance TelephoneCompany vs . NLRC , et . al ., G.R. No. 99030, July 13, 1997; Mabeza vs . NLRC , Hotel Supreme, et . al .,G.R. No. 118506, April 18, 1997.40 Jackson Building Condominium Corporation vs . National Labor Relations Commission, G.R. No.111515, July 14, 1995, 246 SCRA 329, 333.41 Lirag Textile Mills, Inc. vs . Court of Appeals, et . al ., 63 SCRA 374, 385, April 14, 1975.42 Philippine Refining Co., Inc. vs . Garcia, 18 SCRA 107, September 27, 1966.

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Original and exclusive jurisdiction of

Labor Arbiters for money claims limitedonly to those arising from statutes andcontracts other than a CBA. VAs mayalso exercise jurisdiction over Art. 217disputes, as long as parties agree (Art.262).

Supreme Court need not remandcase to VA, especially if case hasdragged on for 8 years.G.R. No. 121227 August 17, 1998VICENTE SAN JOSE, petitioner,vs.NATIONAL LABOR RELATIONS COMMISSION and OCEAN TERMINAL SERVICES, INC.,respondent.

PURISIMA, J.:Before the Court is a Petition for Certiorari seeking to annul a Decision of the National Labor RelationsCommiss ion dated April 20, 1995 in NLRC-NCR-CA-No. 00671-94 which reversed, on jurisdic tionalground, a Decision of the Labor Arbiter dated January 19, 1994 in NLRC-NCR Case No. 00-03-02101-93a case for a money claim underpayment of retirement benefit. Records do not show that petitioner presented a Motion for Reconsideration of subject Decis ion of the National Labor Relations Commission,which motion is, generally required before the filing of Petit ion for Certiorari .While the rule prescribing the requisite motion for reconsideration is not absolute and recognizes someexceptions, there is no showing that the case at bar consti tutes an exception. Nevertheless, we gave duecourse to the petition to enable the Court to reiterate and clarify the jurisdictional boundaries betweenLabor Arbiters and Voluntary Arbitrator or Panel of Voluntary Arbitrators over money claims, and to render substantial and speedy just ice to subject aged stevedore retiree who first presented his claim for retirement benefit in April 1991, or seven years ago.Labor law practit ioners and all lawyers, for that matter, should be fully conversant with the requirementsfor the institution of certiorari proceedings under Rule 65 of the Revised Rules of Court. For instance, it isnecessary that a Motion for Reconsideration of the Decision of the National Labor Relations Commissionmust first be resorted to. The ruling in Corazon Jamer v. National Labor Relations Commission , G.R. No.112630, September 5, 1997, comes to the fore and should be well understood and observed. An ordinaryallegation ". . . and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinarycourse of law" (Rule 65, Sec. 1, Revised Rules of Court) is not a foolproof subst itute for a Motion for Reconsideration, absence of which can be fatal to a Petition for Certiorari . Petitioner cannot and shouldnot rely on the liberality of the Court simply because he is a working man.In the Jamer case, this court said:. . . Thi s premature acti on of petitioners constitute s a fatal i nfirmity as ruled i n a long line of decisions, most recently is the case of Building Care Corporatio n v. National Labor Relations Commissi on The fil ing of such mot ion is intended to afford public respondent an opportunity to correct any actual or fancied error attributed to it by way of a re-exami nation of the l egal and factual aspects of the case. Petit ioner's inacti on or negligence under the ci rcumstances is tantamount to a

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depri vation of the right and opportunity of the respond ent commission to cleanse itself o f an error unwittingly committed or to vindicate itself of an act unfai rly imputed. . . .Likewise, a moti on fo r reconsideration is an ade quate remedy; hence certiorari proceedings, as in thi s case, will not prosper.As stated in the Decision of the Labor Arbiter in NLRC-NCR-Case No. 00-03-0201-93, dated January 19,1994, the facts of this case are undisputed. The Labor Arbiter reported, thus:Compl ainant, in his position paper (Record, pages 11 to 14) states that he was hi red some tim e in Jul y 1980 as a stevedore contin uously untilhe was advised i n April 1991 to retire from service considering that he already reached 65 years old ( sic ); that accordingly, he did apply for retirement a nd was paid P3,156.39 for retirement pay . . . ( Rollo , pp. 15, 2 6-27, 58-59).Decisi on of the L abor Arbiter in NLRC-NCR-Case No. 00-03-02101-93, January 9, 1994(Roll o, pp. 15017, at pp. 16-17) .The Labor Arbiter decided the case solely on the merits of the complaint. Nowhere in the Decision is

made mention of or reference to the issue of jurisdiction of the Labor Arbiter ( Rollo , pp. 15-17). But theissue of jurisdiction is the bedrock of the Petition because, as earlier intimated, the Decision of theNational Labor Relations Commiss ion, hereinbelow quoted, reversed the Labor Arbiter's Decision on theissue of jurisdict ion. Reads subject Decision of the Labor Arbiter:Respondents, in thei r Reply to com plainant's positi on paper, allege (Record, pag es 18 to 21) that com plainant's la test basic salary wasP120.34 per day; that he only worked on rotation basis and no t seven days a week due to numerous stevedores who can not all be givenassignme nts at the same t im e; that a ll stevedores onl y for paid every time they were assigned or actua lly performed stevedoring; that thecompu tation used in arrivi ng at the amount of P3,156.30 was the same comp utat ion applied to the ot her stevedores; that the use of di visor 303 i s not appl icable because complainant performed stevedo ring job onl y on call, so while he was connected with the company for the past11 years, he did not actual ly render 11 years of service; that th e burden of proving that com plainant's latest salary was P200.0 0 rests uponhim ; that he al ready voluntarily signed a waiver of qui tclaim; that i f i ndeed respondent took advantage of his il literacy into signing hi squi tcla im, he would have immediately filed this compl aint but nay, for it took him two (2) years to do so.The issue the refore is whether or not compla inant is entitled to the cla imed differential of separation pay.We find for the comp lainant. He i s entitled to di fferential.We cannot sustai n a compu tati on of length of service based on the ECC contribution records. Likewise, the a llegation that complainantrendered service for on ly fi ve days a month for the past 11 years is statisticall y im probable, aside from the fact th at the best evidence thereof are compl ainant's dai ly time records which respondent are ( sic ) duty bound to keep and make avai lable anytime in case of th is.The lat e filing has no bearing. The prescription period is three years. It is suffi ce ( sic ) that the fil ing fa lls within the period.Whether or not complainant worked on rota tion basis is a burden whi ch li es upon the em ployer. The presumption i s that the normal workingperiod i s eight (8) hours a day and six (6) days a week, or 26 days a month, un less proven otherwise.Also, the b urden of proving the am ount of salari es paid to em ployees rests upon the empl oyer not on the employee. It can be easily provenby payrol ls, vouchers, etc. which the em ployers are li kewise duty boun d to keep and present. There being non, we have to sustaincompl ainant's assertion tha t his latest salary rate was P200 a day or P5,200 a m onth . Therefore, his retrenchment pay differential isP25,443.70 broken down as follows:P200 x 26 d ays = P5,200 x 11 years2= (P2,600 x 11 years) - P3,156.30= P28,600 -P3,156.30= P25,443.70The Decision of th e National Labor RelationsCommissi on in NLRC-NCR-CA No. 06701-94

April 20 , 1995 (Rollo, pp. 18-21) .The National Labor Relations Commiss ion reversed on jurisdictional ground the aforesaid Decision of theLabor Arbiter; ruling, as follows:. . . His clai m for separat ion pay differential is based on the Coll ective Bargaining Agreement (CBA) between his union and the respondentcompany, the pertinent portion of which reads:. . . ANY UNION me mber shall be compulsory retired ( sic ) by the com pany upon reaching the a ge of sixty (60) years, unl ess othe rwiseextend ed by the com pany for justifiab le reason. He shal l be pa id his retirement pay equivalent to one-half (1/2) month salary for every year of service, a fraction of at least six m onths being considered as one (1) whole year.. . . T he comp any agrees that in case of casual employees and /or workers who work on rota tio n basis the crit erion for dete rmining their reti rement pay shal l be 303 rotation calls or work days as equi vale nt to one (1) year and shal l be pa id their retirement pay equivalent to onehalf (1/2) month fo r every year of service.xxx xxx xxxSin ce the instant case arises from in terpreta tion or implementation of a col lective bargaining agreement, the Labor Arbiter should havedismissed i t for l ack of jurisdiction in accordance wi th Article 217 (c) of the La bor Code, wh ich reads : (Emphasis suppl ied)Art. 217. Jurisdicti on of Labor Arbiter and the Commission.xxx xxx xxx(c) Cases arising f rom the i nterpretation or imp lementation of collective bargaining agreement and those arising from the in terpretation or enforcement of company procedure/policies shal l be d isposed of by the Labor Arbiter by referring the same to th e grievance machinery andvoluntary arbi trator as may be provided in said agreements.Petitioner contends that:I. THE PUBLIC RESPONDENT NLRC GRAVELY ABUSED ITS DISCRETION IN GIVING DUE COURSE TO THE APPEA L DESPITE THEFACT 4 ( SIC ) T HAT IT WAS FILED OUT OF T IME AND THERE IS NO SHOWING T HAT A SURETY BOND WAS POSTED.II. THE PUBLIC RESPONDENT NLRC GRAVELY ABUSED ITS DISCRETI ON IN SET TING ASIDE THE DECISION OF . . . DATED 19JANUARY 1994 AND DISMISSING T HE CASE ON THE GROUND OF LACK OF JURISDICTION WHEN THE ISSUE DOES NOT INVOLVEANY PROVISION OF THE COLLECTIVE BARGAINING AGREEMENT. ( Rollo , pp. 7-8)The Manifestation and Motion (In Lieu of Comment) sent in on December 6, 1995 by the Office of theSolicitor General support the second issue, re: jurisdiction raised by the Petitioner ( Rollo , pp. 26-33, at pp.38-32).Labor Arbiter DecisionLabor Arbiters should exert all efforts to cite statutory provisions and/or judicial decision to buttress their dispositions. An Arbiter cannot rely on simplistic statements, generalizations, and assumptions. These arenot substitutes for reasoned judgment. Had the Labor Arbiter exerted more research efforts, support for the Decision could have been found in pertinent provisions of the Labor Code, its implementing Rules,and germane decisions of the Supreme Court. As this Court said in Juan Saballa, at al . v. NLRC , G.R.No. 102472-84, August 22, 1996:. . . Thi s Court has previously he ld that j udges and arbi ters should draw up thei r decisions and resolutions with due care, and make certainthat th ey truly and a ccurately reflect their conclusions and their fina l dispositi ons. A deci sion should fa ithfully comp ly with Section 14, Article



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VIII of the Constitut ion which provides that no deci sion shal l be rendered by any court without expressing therein clearly and distinctly thefacts of the case and the law on which it is based. If such decision had to be completely overturned or set aside, upon the modified decision,such resoluti on or deci sion shoul d likewise state th e factua l and legal foundation relied upon. The reason for thi s is obvious: aside from beingrequired by the Constitution, the court should be a ble to justify such a sudden change of course; i t mu st be able to convincingly explain thetaking back of it s solemn con clusion s and pronouncements in the earl ier decision. The same thing goes for the fi ndi ngs of fact made by theNLRC, as it is a settl ed rule that such findings are entitled to great respect and even finality when supported by substanti al evidence;otherwise, the y shall be struck down for being whimsical and capricious and a rrived at wi th grave abuse of discretion. It is a requirement of due process and fair pl ay that t he parti es to a li tigation be informed of how it was decided, with an explanation of the factual and legalreasons that led to the conclusions of the court. A deci sion that d oes not cl early and distinctly state th e facts and the l aw on which i t is basedleaves the parties in the dark as to how i t was reached and is especial ly prej udicial to the losing party, who i s unable to pinpoint the po ssibl eerrors of the court for review by a hi gher tribunal . . . .This is not an admonition but rather, advice and a critique to stress that both have obligations to theCourts and students of the law. Decisions of the Labor Arbiters, the National Labor RelationsCommiss ion, and the Supreme Court serve not only to adjudicate disputes, but also as an educationaltool to practitioners, executives, labor leaders and law students. They all have a keen interest in methodsof analysis and the reasoning processes employed in labor dispute adjudication and resolution. In fact,decisions rise or fall on the basis of the analysis and reasoning processes of decis ion makers or adjudicators.On the issues raised by the Petitioner, we rule:1. Timeliness of Appeal

And Filing of Appeal Bond The Court rules that the appeal of the respondent corporation was interposed within the reglementaryperiod, in accordance with the Rules of the National Labor Relations Commission, and an appeal bondwas duly posted. We adopt the following Comment dated August 14, 1996, submitted by the NationalLabor Relations Commission, to wit:. . . While i t is true that private respondent company received a copy of the decision dated January 19, 1994 of the Labor Arbiter . . . and f il edits appeal on February 14, 1994, i t i s undisputed that the tenth day within which to file an appeal f ell on a Sa turday, the last day to perfect anappeal shall be the next working d ay.Thus, the amendments to the New Rules of Procedu re of the NLRC, Resoluti on No. 11-01-91 which took effect on January 14, 1992,provides in part:xxx xxx xxx1. Rule VI, Secti ons 1 and 6 are hereby amended to read as foll ows:Sec. 1. Period of Appeal Decisions, awards or orders of the Labor Arbiter . . . shall be fi nal and executory unless appeal ed to theCommission by any or both parties within ten (10) calendar days from receipt of such decisions, awards or orders of the Labor Arbiter . . . . . .If the 10th day . . . fall s on a Satu rday, Sunday or a Holi day, the l ast day to pe rfect the decision shall be th e next working day . (Emphasissupplied)Hence, i t is crystal cl ear that the appe al was fil ed with in the prescripti ve period to perfect an appeal. Likewise, the pet itioner's contention thatprivate respondent did not p ost the requi red surety bond, deserves scant considerati on, for the simple reason that a surety bond was issuedby BF General Insurance Company, Inc., in the amount of P25,443.70 ( Rollo , pp. 63-64).2. Jurisdictional IssueThe jurisdiction of Labor Arbiters and Voluntary Arbitrator or Panel of Voluntary Arbitrators is clearlydefined and specifically delineated in the Labor Code. The pertinent provisions of the Labor Code, read:A. Jurisdiction of L abor ArbitersArt. 217. Jurisdicti on of Labor Arbiter and the Commission. (a) Except as otherwise provided u nder this Code the La bor Arbiter shall haveorig inal and exclusive jurisdiction to hear and decide, within thirty (30) calendar days afte r the submission of the case by the partie s for

deci sion witho ut extension, even in the absence of steno graphic notes, the fol lowing cases in volvi ng all workers, whether agricultural or non-agricultural:1. Unfai r labo r practice cases;2. Termi nation disputes;3. If accom pani ed with a clai m for reinstatement, those cases that workers may fi le i nvol ving wages, rates of pay, hours of work and other terms and conditi ons of em ployment;4. cla im s for actual , moral, exemplary and other forms of dam ages arising f rom the em ployer-employee relations;5. Cases arising from any vio la tion of Article 264 of this Code, i ncluding questions involving the l egality of strikes and l ockouts; and,6. Except claims for Employees Compensation, Social Security, Medicare and maternity benefits, all other claims, arising fromemployer-employee relations, including those of persons in d omesti c or household service , involving an amount exceeding five thousand pesos(P5,000) regardless of whether accompanied with a cl aim for reinstatement.xxx xxx xxx(c) Cases arising from the i nterpretation or implementation of collective bargaining agreement and those arising from the interpretation or enforcement of company procedure/policies shal l be d isposed of by the Labor Arbiter by referring the same to th e grievance machinery andvoluntary arbi trator so maybe provided in said a greement.B. Jurisdiction of Voluntary Arbitrator or Panel of Voluntary ArbitratorsArt. 261. Ju risdicti on of Voluntary Arbitrators or panel of Vol untary Arbitrators. The Volun tary Arbitrator or panel of Voluntary Arbitratorsshal l have origi nal and exclusive jurisdiction to hear and decide al l unresolved grievances arising from the interpretation or implementation of

the Col lective Bargaining Agreement and those arising from the interpretation or enforcement of company personnel policies referred to inthe i mmediately preceding article. Accordingly, violations of a Col lective Bargaining Agreement, except those which are grossin cha racter,shal l no l onger be treated as unfa ir labor practice and shal l be resolved as grievances under the collective bargaining agreement. For purposes of thi s Articl e, gross viol ati ons of Coll ective Bargaining Agreement shal l mean flagrant and/or mali cious refusal to comply with theeconomic provisions of such agreement.The Commission, it s Regional Offices and the Regional Directors of the Depa rtment of Labor and Employment shal l not entertain dispute s,grievances or mat ters unde r the exclusive and orig inal jurisdiction of the Voluntary Arbitrator or panel of Vol untary Arbitrators and shallim med iately di spose and refer the same to the Gri evance Machinery or Volu ntary Arbi tration provided i n the Collective BargainingAgreement.Art. 262. Jurisdiction over other labor disputes. The Vol untary Arbitrator or panel of Voluntary Arbitrators, upon agreement of the parties,shal l al so hear and deci de all other labor disputes in cluding unfair labor practices and bargaining deadlocks.The aforecited provisions of law cannot be read in isolation or separately. They must be read as a wholeand each Article of the Code reconciled one with the other. An analysis of the provisions of Artic les 217,261, and 262 indicates, that:1. The jurisdic tion of the Labor Arbiter and Voluntary Arbitrator or Panel of Voluntary Arbitrators over thecases enumerated in Articles 217, 261 and 262, can possibly include money claims in one form or



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another.2. The cases where the Labor Arbiters have original and exclusive jurisdiction are enumerated in Article217, and that of the Voluntary Arbitrator or Panel of Voluntary Arbitrators in Article 261.3. The original and exclusive jurisdiction of Labor Arbiters is qualified by an exception as indicated in theintroductory sentence of Article 217 (a), to wit:Art. 217. Jurisdiction of Labor Arbiters . . . (a) Except a s otherwise provided und er this Code the La bor Arbiter shall have original andexclusive j urisdiction to hear and deci de . . . the fo ll owing cases involving al l workers. . . .The phrase "Except as otherwise provided under this Code" refers to the following exceptions:A. Art. 217. Jurisdicti on of Labor Arbiters . . .xxx xxx xxx(c) Cases arising from the i nterpretation or implementation of collective bargaining agreement and those arising from the interpretation or enforcement of company procedure/policies shal l be d isposed of by the Labor Arbiter by referring the same to th e grievance machinery andvoluntary arbit rator as may be provided in said agreement.B. Art. 262. Jurisdiction over other labor disputes. The Volun tary Arbitrator or panel of Voluntary Arbitrators, upon agreement of theparti es, shal l al so hear and deci de all other labor disputes including unfair la bor practices and bargaining deadlocks.Parenthetically, the original and exclusive jurisdiction of the Labor Arbiter under Article 217 (c), for moneyclaims is limited only to those arising from statutes or contracts other than a Collective BargainingAgreement. The Voluntary Arbitrator or Panel of Voluntary Arbitrators will have original and exclusive

jurisdiction over money claims "arising from the interpretation or implementation of the CollectiveBargaining Agreement and, those arising from the interpretation or enforcement of company personnelpolicies", under Article 261.4. The jurisdic tion of Voluntary Arbitrator or Panel of Voluntary Arbit rators is provided for in Arts. 261 and262 of the Labor Code as indicated above.1. A close reading of Article 261 indicates that the original and exclusive jurisdiction of VoluntaryArbitrator or Panel of Voluntary Arbitrators is limited only to:. . . un resolved grievances arising from the in terpretation or implementation of the Coll ective Bargaining Agreement and those arising fromthe i nterpretation or enforcement of company personnel poli cies . . . Accordingly, violations of a colle ctive bargaining agreement, exceptthose which are gross in cha racter, shal l no l onger be treated as unfa ir labor practice and shal l be resolved as grievances under theColl ecti ve Bargaining Agreement. . . . .2. Voluntary Arbitrators or Panel of Voluntary Arbitrators, however, can exercise jurisdiction over any andall disputes between an employer and a union and/or individual worker as provided for in Artic le 262.Art. 262. Jurisdiction over other labor disputes. The volu ntary arbitrator or panel of voluntary arbitrators, upon agreement of the parties,shal l al so hear and deci de all other labor disputes including unfair labor practices and bargaining deadlocks.It must be emphasized that the jurisdiction of the Voluntary Arbitrator or Panel of Voluntary Arbitratorsunder Article 262 must be voluntarily conferred upon by both labor and management. The labor disputesreferred to in the same Article 262 can include all those disputes mentioned in Article 217 over which theLabor Arbiter has original and exclusive jurisdiction.As shown in the above contextual and wholistic analysis of Articles 217, 261, and 262 of the Labor Code,the National Labor Relations Commission correctly ruled that the Labor Arbiter had no jurisdiction to hear and decide petitioner's money-claim-underpayment of retirement benefits, as the controversy between theparties involved an issue "arising from the interpretation or implementation" of a provision of the collectivebargaining agreement. The Voluntary Arbitrator or Panel of Voluntary Arbitrators has original andexclusive jurisdiction over the controversy under Article 261 of the Labor Code, and not the Labor Arbiter.3. Merits of the CaseThe Court will not remand the case to the Voluntary Arbitrator or Panel of Voluntary Arbitrators for hearing. This case has dragged on far too long eight (8) years. Any further delay would be a denial of speedy justice to an aged retired stevedore. There is further the possibility that any Decis ion by theVoluntary Arbitrator or Panel of Voluntary Arbitrators will be appealed to the Court of Appeals, and finallyto this Court. Hence, the Court will rule on the merits of the case.We adopt as our own the retirement benefit computation formula of the Labor Arbiter, and the reasonstherefor as stated in the decision abovequote d.The simple statement of the Labor Arbiter that "we cannot sustain a computation of length of servicebased on ECC contribution records", was not amply explained by the Labor Arbiter; however, there islegal and factual basis for the same. It is unrealist ic to expect a lowly stevedore to know what reports hisemployer submits to the Employee's Compensation Commiss ion under Book IV, Health, Safety andWelfare Benefits, Title II, Employees Compensation and State Insurance Fund, of the Labor Code, simplybecause the insurance fund is solely funded by the employer and the rate of employer's contributionvaries according to time and actuarial computations. (See Articles 183-184; Labor Code). The worker hasno ready access to this employer's record. In fact, it is farthest from his mind to inquire into the amount of employer's contribution, much less whether the employer remits the contributions. The worker is at alltimes entitled to benefits upon the occurrence of the defined contingency even when the employer fails toremit the contributions. (See Article 196 (b), Labor Code).All employers are likewise required to keep an employment record of all their employees, namely:payrolls; and time records. (See Book III, Rule X, specifically Secs . 6, 7, 8, 1 and 12, Omnibus Rules Implementing the Labor Code).The respondent-employer was afforded the opportunity to show proof of the petit ioner's length of serviceand pay records. In both instances, the respondent-employer failed. By its own folly, it must thereforesuffer the consequences of such failure. (South Motorists Enterprises v. Tosoc, 181 SCRA 386, [1990])From the very beginning by the provision of the retirement provision of the Collective Bargaining



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Agreement, i .e ., the length of service as requirement for retirement, and salary as a basis for benefitcomputation the employer was forewarned of the need for accurate record keeping. This is preciselythe basis of retirement, and the computation of benefits based on years of service and monthly wage.To recapitulate; the Court hereby rules 1. That the National Labor Relations Commission correctly ruled that the Labor Arbiter had no jurisdictionover the case, because the case involved an issue "arising from the interpretation or implementation" of aCollective Bargaining Agreement;2. That the appeal to the National Labor Relations Commission was filed within the reglementary periodand that the appeal bond was filed; and3. That we adopt the computation formula for the retirement benefits by the Labor Arbiter, and the basis

thereof, The respondent must therefore pay the petitioner the additional amount of Twenty-Five ThousandFour Hundred Forty-Three and Seventy Centavos P25,443.70) Pesos.In view of the long delay in the disposition of the case, this decision is immediately executory.SO ORDERED.Narvasa, C.J., Romero and Kapunan, JJ., concur.

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Submission of all disputes to VA not

enough, termination disputes must bespecified. Also, grievance procedureprovisions must be mandatory.Termination dispute not within ambit of Policy Instruction No. 56, as it no longer involves implementation or enforcement

of company personnel policies. Besides,P.I. 56 was belatedly raised.SECOND DIVISION[G.R. No. 138938. October 24, 2000]CELESTINO VIVIERO, petitioner, vs. COURT OF APPEALS, HAMMONIA MARINE SERVICES, and HANSEATICSHIPPING CO., LTD.respondents .D E C I S I O NBELLOSILLO, J.:CELESTINO VIVERO, in this petition for review, seeks the reversal of the Decis ion of the Court of Appeals of 26 May 1999 setting aside the Decision of the National Labor Relations Commissionof 28 May 1998 as well as its Resolution of 23 July 1998 denying his motion for itsreconsideration, and reinstating the decision of the Labor Arbiter of 21 January 1997.Petitioner Vivero, a licensed seaman, is a member of the Associated Marine Officers andSeamen's Union of the Philippines (AMOSUP). The Collective Bargaining Agreement enteredinto by AMOSUP and private respondents provides, among others -ARTICLE XIIGRIEVANCE PROCEDURE x x x xSec. 3. A dispute or grievance arising in connection with the terms and provisions of this Agreement shallbe adjusted in accordance with the following procedure:1. Any seaman who fee ls that he has been unjustly treated or even subjected to an unfair considerationshall endeavor to have said grievance adjusted by the designated representative of the unlicenseddepartment abroad the vessel in the following manner:A. Presentation of the complaint to his immediate superior.B. Appeal to the head of the department in which the seaman involved shall be employed.C. Appeal directly to the Master.Sec. 4. If the grievance cannnot be resolved under the provision of Section 3, the decision of the Mastershall govern at sea x x x x in foreign ports and until the vessel arrives at a port where the Master shallrefer such dispute to ei ther the COMPANY or the UNION in order to resolve such dispute. It isunderstood, however, if the dispute could not be resolved then both parties shall avail of the grievanceprocedure.Sec. 5. In furtherance of the foregoing principle, there is hereby created a GRIEVANCE COMMITTEE to be

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composed of two COMPANY REPRESENTATIVES to be designated by the COMPANY and two LABORREPRESENTATIVES to be designated by the UNION.Sec. 6. Any grievance, dispute or misunderstanding concerning any ruling, practice, wages or workingconditions in the COMPANY, or any breach of the Employment Contract, or any dispute arising from themeaning or the application of the provision of this Agreement or a claim of violation thereof or anycomplaint that any such crewmembers may have against the COMPANY, as well as complaint which theCOMPANY may have against such crewmembers shall be brought to the attention of the GRIEVANCECOMMITTEE before either party takes any action, legal or otherwise.

Sec. 7. The COMMITTEE shall resolve any dispute within seven (7) days from and after the same issubmitted to it for resolution and if the same cannot be se ttled by the COMMITTEE or if the COMMITTEEfails to act on the dispute wi thin the 7-day period herein provided, the same shall be referred to aVOLUNTARY ARBITRATION COMMITTEE.An "impartial arbitrator" will be appointed by mutual choice and consent of the UNION and theCOMPANY who shall hear and decide the dispute or issue presented to him and his decision shall befinal and unappealable x x x x [1]As found by the Labor Arbiter -Complainant was hired by respondent as Chief Officer of the vessel " M.V.Sunny Prince " on 10 June 1994under the terms and conditions, to wit:Duration of Contract - - - - 10 monthsBasic Monthly Salary - - - - US $1,100.00Hours of Work - - - - 44 hrs./weekOvertime - - - - 495 lump O.T.Vacation leave with pay - - - - US $220.00/mo.On grounds of very poor performance and conduct, refusal to perform his job, refusal to report to theCaptain or the vessels Engineers or cooperate with other ship officers about the problem in cleaning thecargo holds or of the shipping pump and his dismal relations with the Captain of the vessel, complainantwas repatriated on 15 July 1994.On 01 August 1994, complainant filed a complaint for il legal dismissal at Associated Marine Officers andSeamans Union of the Phi lippines (AMOSUP) of which complainant was a member. Pursuant to ArticleXII of the Collective Bargaining Agreement, grievance proceedings were conducted; however, partiesfailed to reach and settle the dispute amicably, thus, on 28 November 1994, complainant filed [a]

complaint wi th the Phi lippine Overseas Employment Administration (POEA) .[2]The law in force at the time petitioner filed his Complaint with the POEA was EO No. 247. [3]While the case was pending before the POEA, private respondents filed a Motion to Dismiss onthe ground that the POEA had no jurisdiction over the case considering petitioner Vivero'sfailure to refer it to a Voluntary Arbitration Committee in accordance with the CBA between theparties. Upon the enactment of RA 8042, the Migrant Workers and Overseas Filipinos Act of 1995 , the case was transferred to the Adjudication Branch of the National Labor RelationsCommission.On 21 January 1997 Labor Arbiter Jovencio Ll. Mayor Jr., on the basis of the pleadings anddocuments available on record, rendered a decis ion dismissing the Complaint for want of

jurisdiction. [4] According to the Labor Arbiter, since the CBA of the parties provided for the

referral to a Voluntary Arbitration Committee should the Grievance Committee fail to settle thedispute, and considering the mandate of Art. 261 of the Labor Code on the original andexclusive jurisdiction of Voluntary Arbitrators, the Labor Arbiter clearly had no jurisdiction overthe case. [5]Petitioner (complainant before the Labor Arbiter) appealed the dismissal of his petition to theNLRC. On 28 May 1998 the NLRC set aside the decis ion of the Labor Arbiter on the ground thatthe record was clear that petitioner had exhausted his remedy by submitting his case to theGrievance Committee of AMOSUP. Considering however that he could not obtain anysettlement he had to ventilate his case before the proper forum, i.e ., the Philippine OverseasEmployment Administration. [6] The NLRC further held that the contested portion in the CBA

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providing for the intercession of a Voluntary Arbitrator was not binding upon petitioner sinceboth petitioner and private respondents had to agree voluntarily to submit the case before aVoluntary Arbitrator or Panel of Voluntary Arbitrators. This would entail expenses as theVoluntary Arbitrator chosen by the parties had to be paid. Inasmuch however as petitionerchose to file his Complaint originally with POEA, then the Labor Arbiter to whom the case wastransferred would have to take cognizance of the case. [7]The NLRC then remanded the case to the Labor Arbiter for further proceedings. On 3 July 1998respondents filed a Motion for Reconsideration which was denied by the NLRC on 23 July 1998.Thus, private respondents raised the case to the Court of Appeals contending that the provisionin the CBA requiring a dispute which remained unresolved by the Grievance Committee to bereferred to a Voluntary Arbitration Committee, was mandatory in character in view of the CBAbetween the parties. They stressed that "since it is a policy of the s tate to promote voluntaryarbitration as a mode of settling labor disputes, it is clear that the public respondent gravelyabused its discretion in taking cognizance of a case which was s till within the mantle of theVoluntary Arbitration Commitees jurisdiction." [8]On the other hand, petitioner argued -(A)s strongly suggested by its very title, referral of cases of this nature to the Voluntary ArbitrationCommittee is voluntary in nature. Otherwise, the committee would not have been called VoluntaryArbitration Committee but rather, a Compulsory Arbitration Committee. Moreover, if the referral of cases of similar nature to the Voluntary Arbitration Committee would be deemed mandatory by virtueof the provisions in the CBA, the [NLRC] would then be effectively deprived of its jurisdiction to try, hearand decide termination disputes, as provided for under Article 217 of the Labor Code. Lastly,[respondents] ought to be deemed to have waived their right to question the procedure followed by[peti tioner], considering that they have already filed their Position Paper before belatedly filing a Motionto Dismiss x x x x [9]But the Court of Appeals ruled in favor of private respondents. It held that the CBA "is the lawbetween the parties and compliance therewith is mandated by the express policy of thelaw." [10] Hence, petitioner should have followed the provision in the CBA requiring thesubmission of the dispute to the Voluntary Arbitration Committee once the GrievanceCommittee failed to settle the controversy. [11] According to the Court of Appeals, the partiesdid not have the choice to "volunteer" to refer the dispute to the Voluntary Arbitrator or aPanel of Arbitrators when there was already an agreement requiring them to do so. "VoluntaryArbitration" means that it is binding because of a prior agreement or contract, while"Compulsory Arbitration" is when the law declares the dispute subject to arbitration, regardlessof the consent or desire of the parties. [12]The Court of Appeals further held that the Labor Code itself enumerates the original andexclusive jurisdiction of the Voluntary Arbitrator or Panel of Voluntary Arbitrators, and prohibitsthe NLRC and the Regional Directors of the Department of Labor and Employment (DOLE) fromentertaining cases falling under the same. [13] Thus, the fact that private respondents filed theirPosition Paper first before filing their Motion to Dismiss was immaterial and did not operate to

confer jurisdiction upon the Labor Arbiter, following the well-settled rule that jurisdiction isdetermined by law and not by consent or agreement of the parties or by estoppel. [14]Finally, the appellate court ruled that a case fall ing under the jurisdiction of the Labor Arbiter asprovided under Art. 217 of the Labor Code may be lodged instead with a Voluntary Arbitratorbecause the law prefers, or gives primacy, to voluntary arbitration instead of compulsoryarbitration. [15] Consequently, the contention that the NLRC would be deprived of its jurisdictionto try, hear and decide termination disputes under Art. 217 of the Labor Code, should theinstant dispute be referred to the Voluntary Arbitration Committee, is clearly bereft of merit. [16]Besides, the Voluntary Arbitrator, whether acting solely or in a panel, enjoys in law the status of a quasi-judicial agency independent of, and apart from, the NLRC since his decisions are not

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appealable to the latter. [17]Celestino Vivero, in his petition for review assailing the Decision of the Court of Appeals, allegesthat the appellate court committed grave abuse of discretion in holding that a VoluntaryArbitrator or Panel of Voluntary Arbitrators, and not the Adjudication Branch of the NLRC, has

jurisdiction over his complaint for illegal dismissal. He claims that his complaint for illegaldismissal was undeniably a termination dispute and did not, in any way, involve an"interpretation or implementation of collective bargaining agreement" or "interpretation" or"enforcement" of company personnel policies . Thus, it should fall within the original andexclusive jurisdiction of the NLRC and its Labor Arbiter, and not with a Voluntary Arbitrator, inaccordance with Art. 217 of the Labor Code.Private respondents, on the other hand, allege that the case is clearly one "involving the properinterpretation and implementation of the Grievance Procedure found in the CollectiveBargaining Agreement (CBA) between the parties" [18] because of petitioners allegation in hisclaim/assistance request form submitted to the Union, to wit:NATURE OF COMPLAINT 3. Illegal Dismissal - Reason: (1) That in this case it was the master of M.V. SUNNY PRINCE Capt.Andersen who created the trouble wi th physical injury and stating false allegation; (2) That there was noproper procedure of grievance; (3) No proper notice of dismissal.Is there a Notice of dismissal? _x _ Yes or ____ NoWhat date? 11 July 1994Is there a Grievance Procedure observed? ____ Yes or _x_ No [19]Private respondents further allege that the fact that petitioner sought the assistance of hisUnion evidently shows that he himself was convinced that his Complaint was within the ambitof the jurisdiction of the grievance machinery and subsequently by a Panel of VoluntaryArbitrators as provided for in their CBA, and as explicitly mandated by Art. 261 of the LaborCode. [20]Thus, the issue is whether the NLRC is deprived of jurisdiction over illegal dismissal caseswhenever a CBA provides for grievance machinery and voluntary arbitration proceedings. Or,phrased in another way, does the dismissal of an employee constitute a "grievance between

the parties," as defined under the provisions of the CBA, and consequently, within the exclusiveoriginal jurisdiction of the Voluntary Arbitrators, thereby rendering the NLRC without jurisdiction to decide the case?On the original and exclusive jurisdiction of Labor Arbiters, Art. 217 of the Labor Code provides -Art. 217. Jurisdiction of Labor Arbiters and the Commission . - (a) Except as otherwise provided under thisCode, the Labor Arbiters shall have original and exclusive jurisdiction to hear and decide within thirty(30) calendar days after the submission of the case by the parties for decision without extension, even inthe absence of stenographic notes, the following cases involving all workers, whether agricultural ornon-agricultural: (1) Unfair labor practice cases; (2) Termination disputes ; (3) If accompanied with aclaim for reinstatement, those cases that workers may file involving wages, rates of pay, hours of workand other terms and conditions of employment; (4) Claims for actual, moral, exemplary and other formsof damages arising from the employer-employee relations ; (5) Cases arising from any violation of Article264 of this Code, including questions involving the legality of strikes and lockouts; and, (6) Except claimsfor Employees Compensation, Social Security, Medicare and maternity benefits, all other claims arisingfrom employer-employee relations, including those of persons in domestic or household service,involving an amount exceeding five thousand pesos (P5,000.00) regardless of whether accompaniedwith a claim for reinstatement.(b) The Commission shal l have exclusive appellate jurisdiction over all cases decided by Labor Arbiters.(c) Cases arising from the interpretation of collective bargaining agreements and those arising from theinterpretation or enforcement of company personnel policies shall be disposed of by the Labor Arbiterby referring the same to the grievance machinery and voluntary arbitration as may be provided in saidagreements ( emphasis supplied ).

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However, any or all of these cases may, by agreement of the parties, be submitted to aVoluntary Arbitrator or Panel of Voluntary Arbitrators for adjudication. Articles 261 and 262 of the Labor Code provide -Art. 261. Jurisdiction of Voluntary Arbitrators or Panel of Voluntary Arbitrators . - The VoluntaryArbitrator or panel of Voluntary Arbitrators shall have original and exclusive jurisdiction to hear anddecide all unresolved grievances arising from the interpretation or implementation of the CollectiveBargaining Agreement and those arising from the interpretation or enforcement of company personnelpolicies referred to in the immediately preceding article. Accordingly, violations of a Collective

Bargaining Agreement, except those which are gross in character, shall no longer be treated as unfairlabor practice and shall be resolved as grievances under the Collective Bargaining Agreement. Forpurposes of this article, gross violations of Collective Bargaining Agreement shall mean flagrant and/ormalicious refusal to comply with the economic provisions of such agreement.The Commission, its Regional Offices and the Regional Directors of the Department of Labor andEmployment shall not entertain disputes, grievances or matters under the exclusive and original jurisdiction of the Voluntary Arbitrator or panel of Voluntary Arbitrators and shall immediately disposeand refer the same to the Grievance Machinery or Voluntary Arbitration provided in the CollectiveBargaining Agreement.Art. 262. Jurisdiction Over Other Labor Disputes . - The Voluntary Arbitrator or panel of VoluntaryArbitrators, upon agreement of the parties , shall also hear and decide all other labor disputes includingunfair labor practices and bargaining deadlocks ( emphasis supplied ).Private respondents attempt to justify the conferment of jurisdiction over the case on theVoluntary Arbitrator on the ground that the issue involves the proper interpretation andimplementation of the Grievance Procedure found in the CBA. They point out that whenpetitioner sought the assistance of his Union to avail of the grievance machinery, he in effectsubmitted himself to the procedure set forth in the CBA regarding submission of unresolvedgrievances to a Voluntary Arbitrator.The argument is untenable. The case is primarily a termination dispute. It is clear from theclaim/assistance request form submitted by petitioner to AMOSUP that he was challenging thelegality of his dismissal for lack of cause and lack of due process . The issue of whether therewas proper interpretation and implementation of the CBA provisions comes into play only

because the grievance procedure provided for in the CBA was not observed after he sought hisUnions assis tance in contesting his termination. Thus, the question to be resolved necessarilysprings from the primary issue of whether there was a valid termination; without this, thenthere would be no reason to invoke the need to interpret and implement the CBA provisionsproperly.In San Miguel Corp. v. National Labor Relations Commission [21] this Court he