EN BANC

[G.R. No. 85519. February 15, 1990.]

UNIVERSITY OF STO. TOMAS, FR. MAXIMO MARINA, O.P. AND GILBERTO L. GAMEZ,
petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION, HONORABLE LABOR
ARBITER BIENVENIDO S. HERNANDEZ AND BASILIO E. BORJA, respondents.
Abad, Leao & Associates for petitioners.
Antonio B. Fidelino for private respondent.
SYLLABUS
1.
LABOR AND SOCIAL LEGISLATION; MANUAL OF REGULATIONS FOR PRIVATE SCHOOLS;
ACQUISITION OF REGULAR OR PERMANENT STATUS OF FACULTY MEMBERS IN AN
EDUCATIONAL INSTITUTION, DETERMINED THEREBY AND NOT BY THE LABOR CODE. The
appealed decision is correct insofar as it declares that it is the Manual of Regulations for
Private Schools, not the Labor Code, that determines the acquisition of regular or permanent
status of faculty members in an educational institution, but the Court disagrees with the
observation that it is only the completion of three (3) years of service that is required to
acquire such status.
2.
ID.; ID.; PARAGRAPH 75; PROBATIONARY EMPLOYMENT OF PROFESSORS,
INSTRUCTORS AND TEACHERS, SUBJECT TO STANDARDS EMBODIED THEREIN. According
to Policy Instructions No. 11 issued by the Department of Labor and Employment, "the
probationary employment of professors, instructors and teachers shall be subject to
standards established by the Department of Education and Culture." Said standards are
embodied in paragraph 75 of the Manual of Regulations for Private Schools.
3.
ID.; ID.; ID.; REQUISITES FOR ACQUISITION BY A TEACHER OF PERMANENT
EMPLOYMENT OR SECURITY OF TENURE, ENUMERATED. The legal requisites, therefore, for
acquisition by a teacher of permanent employment, or security of tenure, are as follows: 1)
the teacher is a full time teacher; 2) the teacher must have rendered three (3) consecutive
years of service; and 3) such service must have been satisfactory.
4.
ID.; ID.; PART-TIME MEMBER OF FACULTY CANNOT ACQUIRE PERMANENCE IN
EMPLOYMENT THEREUNDER. The Manual of Regulations also states that "a full-time
teacher" is "one whose total working day is devoted to the school, has no other regular
remunerative employment and is paid on a regular monthly basis regardless of the number
of teaching hours" (Par. 77); and that in college, "the normal teaching load of a full-time
instructor shall be eighteen hours a week" (par. 78). It follows that a part-time member of
the faculty cannot acquire permanence in employment under the Manual of Regulations in
relation to the Labor Code.
5.
ID.; ID.; RESPONDENT TEACHER NOT A FULL-TIME TEACHER AS HIS TOTAL WORKING
DAY WAS NOT DEVOTED TO SCHOOL. The private respondent, therefore, could not be
regarded as a full-time teacher in any aspect. He could not be regarded as such because his
total working day was not devoted to the school and he had other regular remunerative
employment. Moreover, his average teaching load was only 6.33 hours a week.
6.
ID.; ID.; RESPONDENT TEACHER DID NOT BECOME A PERMANENT EMPLOYEE EVEN
AFTER COMPLETION OF THREE YEARS OF SERVICE. In view of paragraphs 75, 77, and 78
of the Manual of Regulations, and the fact that private respondent was not a full-time
teacher, he could not have and did not become a permanent employee even after the
completion of three (3) years of service.

7.
ID.; ID.; REAPPOINTMENT OF PRIVATE RESPONDENT ADDRESSED TO DISCRETION OF
SCHOOL. Having found that private respondent did not become a permanent employee of
petitioner UST, it correspondingly follows that there was no duty on the part of petitioner
UST to reappoint private respondent as Instructor, the temporary appointment having
lapsed. Such appointment is a matter addressed to the discretion of said petitioner.
DECISION
GANCAYCO, J p:
The herein private respondent Dr. Basilio E. Borja was first appointed as "affiliate faculty" in
the Faculty of Medicine and Surgery at the University of Sto. Tomas (UST for short) on
September 29, 1976. In the second semester of the school year 1976-77 he was appointed
instructor with a load of twelve (12) hours a week. He was reappointed instructor for the
school year 1977-78 with a load of nine (9) hours a week in the first semester and two (2)
hours a week in the second. On June 10, 1978 he was appointed as Instructor III for the
school year 1978-79. His load for the first semester was eight (8) hours a week, and for the
second semester, seven (7) hours a week.
On March 19, 1979 Dean Gilberto Gamez observed that Dr. Borja should not be reappointed
based on the evaluation sheet that shows his sub-standard and inefficient performance. 1
Nevertheless in view of the critical shortage of staff members in the Department of
Neurology and Psychiatry, Dr. Gamez recommended the reappointment of Dr. Borja, after
informing the latter of the negative feedbacks regarding his teaching and his promise to
improve his performance. Thus on July 27, 1979 he was extended a reappointment as
Instructor III in the school year 1979-80. He was given a load of six (6) hours a week. In all
these appointments he was a part time instructor.
At the end of the academic year, it appearing that Dr. Borja had not improved his
performance in spite of his assurances of improvement, his reappointment was not
recommended.
In July, 1982 he filed a complaint in the National Labor Relations Commission (NLRC for
short) for illegal dismissal against the UST. After the submission of the pleadings and due
proceedings the labor arbiter rendered a decision on July 19, 1984, the dispositive part of
which reads as follows:
"WHEREFORE this Office finds in favor of the complainant. The respondents (sic) university
are hereby ordered to effect the immediate reinstatement of complainant to his former
position with full backwages, rights and benefits appertaining thereto. Respondent university
is likewise ordered to pay the complainant the sum of FIVE HUNDRED THOUSAND PESOS
(P500,000.00) as and by way of moral damages and another 10% of the gross amount due
him, and as and by way of attorney's fees.
Respondents are hereby ordered to effect this decision immediately." 2
The UST appealed therefrom to the NLRC which in due course rendered a decision on
September 30, 1988, modifying the appealed decision as follows: cdrep
"WHEREFORE, premises considered, the appealed decision is hereby AFFIRMED with a
modification limiting the backwages to three (3) years without qualification or deduction,
computed at P660.00 per month, ordering respondents to pay complainant P100,000.00 as
and for actual or compensatory damages, ordering respondents to pay complainant
P300,000.00 as and for moral damages, and further ordering them to pay complainant
P100,000.00 as and for exemplary damages.

Finally, respondents are ordered to pay to complainant the sum of ten (10%) percent of the
total sum due as and for attorney's fees." 3
Hence the instant petition for certiorari and prohibition with a prayer for the issuance of a
writ of preliminary injunction and restraining order that was filed by the UST and its officers
wherein it is alleged that the public respondent NLRC committed the following errors:
"I
THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION COMMITTED SERIOUS
REVERSIBLE ERRORS OF SUBSTANCE AMOUNTING TO GRAVE ABUSE OF DISCRETION AND/OR
LACK OR EXCESS OF JURISDICTION IN FINDING THAT BASILIO E. BORJA ACQUIRED TENURE,
THE SAID FINDING BEING CLEARLY CONTRARY TO THE EVIDENCE AT HAND AND DEVOID OF
BASIS IN LAW.
II
THE HONORABLE NLRC COMMITTED A SERIOUS AND REVERSIBLE ERROR AND GRAVELY
ABUSED ITS DISCRETION IN HOLDING THAT THE SERVICES OF BASILIO E. BORJA HAD BEEN
CONSTRUCTIVELY TERMINATED, HIS APPOINTMENT HAVING MERELY LAPSED IN ACCORDANCE
WITH ITS TERMS AS ACCEPTED BY THE COMPLAINANT-APPELLEE BORJA.
III
THE HONORABLE NLRC COMMITTED A SERIOUS AND GRAVE ERROR IN AFFIRMING, ALBEIT
REDUCING THE AWARD OF THE HONORABLE LABOR ARBITER A QUO OF CLEARLY EXCESSIVE,
UNJUST, UNCONSCIONABLE AND SHOCKING MORAL DAMAGES OF P300,000.00 AND IN
AWARDING MOTU PROPIO EXEMPLARY DAMAGES IN THE AMOUNT OF P100,000.00 IN GRAVE
ABUSE OF ITS DISCRETION AMOUNTING TO EXCESS OF JURISDICTION." 4
The petition is impressed with merit.
In the questioned decision of the public respondent NLRC it found that private respondent
had earned to his credit eight (8) semesters or four (4) academic years of professional duties
with the UST and that he has met the requirements to become a regular employee under the
three (3) years requirement in the Manual of Regulations for Private Schools.
The appealed decision is correct insofar as it declares that it is the Manual of Regulations for
Private Schools, not the Labor Code, that determines the acquisition of regular or permanent
status of faculty members in an educational institution, but the Court disagrees with the
observation that it is only the completion of three (3) years of service that is required to
acquire such status.
According to Policy Instructions No. 11 issued by the Department of Labor and Employment,
"the probationary employment of professors, instructors and teachers shall be subject to
standards established by the Department of Education and Culture." Said standards are
embodied in paragraph 75 of the Manual of Regulations for Private Schools, to wit:
"75.
Full time teachers who have rendered three consecutive years of satisfactory service
shall be considered permanent." (Emphasis supplied)
The legal requisites, therefore, for acquisition by a teacher of permanent employment, or
security of tenure, are as follows:
1)

the teacher is a full time teacher;

2)

the teacher must have rendered three (3) consecutive years of service; and

3)

such service must have been satisfactory.

Now, the Manual of Regulations also states that "a full-time teacher" is "one whose total
working day is devoted to the school, has no other regular remunerative employment and is
paid on a regular monthly basis regardless of the number of teaching hours" (Par. 77); and
that in college, "the normal teaching load of a full-time instructor shall be eighteen hours a
week" (par. 78).
It follows that a part-time member of the faculty cannot acquire permanence in employment
under the Manual of Regulations in relation to the Labor Code.
Hence, the crucial question is whether or not the private respondent was a full-time or parttime member of the faculty during the three (3) years that he served in the petitioneruniversity's College of Medicine. Stated otherwise, the question is (1) whether or not the
said respondent's "total working day . . . (was) devoted to the school" and he had "no other
regular remunerative employment" and was "paid on a regular monthly basis regardless of
the number of teaching hours;" and/or (2) whether or not his normal teaching load was
eighteen (18) hours a week.
It cannot be said that respondent's total working day was devoted to the school alone. It is
clear from the record that he was practising his profession as a doctor and maintaining a
clinic in the hospital for this purpose during the time that he was given a teaching load. In
other words, he had another regular remunerative work aside from teaching. His total
working day was not, therefore, devoted to the school. Indeed, his salaries from teaching
were computed by the respondent Commission itself at only an average of P660.00 per
month; he, therefore, had to have other sources of income, and this of course was his selfemployment as a practising psychiatrist. That the compensation for teaching had to be
averaged also shows that he was not paid on a regular monthly basis. Moreover, there is
absolutely no evidence that he performed other functions for the school when not teaching.
All things considered, it would appear that teaching was only a secondary occupation or
"sideline," his professional practice as a psychiatrist being his main vocation.
The record also discloses that he never had a normal teaching load of eighteen (18) hours a
week during the time that he was connected with the university. The only evidence on this
equally vital issue was presented by the petitioner through the affidavit of Dr. Gilberto
Gamez who was the dean of the medical school during the time material to the proceedings
at bar. His sworn declaration is to the effect that as "affiliate faculty" member of the
Department of Neurology and Psychiatry from September 29, 1976, private respondent had
no teaching functions: that in fact, when he was appointed in September, 1976, classes for
the first semester were already nearing their end; that as "affiliate faculty" he was merely an
observer acquainting himself with the functions of an instructor while awaiting issuance of a
formal appointment as such; that in the school year 1977-78 he had a teaching load of nine
(9) hours a week in the first semester and two (2) hours a week in the second semester; that
in the school year 1978-1979 he had a load of eight (8) hours a week in the first semester
and seven (7) hours a week in the second semester; that in the school year 1979-1980 he
had a load of six (6) hours a week in each semester. This evidence does not appear to have
been refuted at all by the private respondent, and has inexplicably been ignored by public
respondent. No discussion of this particular point is found in the decisions of the Labor
Arbiter or the NLRC. cdll
The private respondent, therefore, could not be regarded as a full-time teacher in any
aspect. He could not be regarded as such because his total working day was not devoted to
the school and he had other regular remunerative employment. Moreover, his average
teaching load was only 6.33 hours a week.

In view of the explicit provisions of the Manual of Regulations above-quoted, and the fact
that private respondent was not a full-time teacher, he could not have and did not become a
permanent employee even after the completion of three (3) years of service.
Having found that private respondent did not become a permanent employee of petitioner
UST, it correspondingly follows that there was no duty on the part of petitioner UST to
reappoint private respondent as Instructor, the temporary appointment having lapsed. Such
appointment is a matter addressed to the discretion of said petitioner.
The findings, therefore, of the public respondent NLRC that private respondent was
constructively terminated is without lawful basis. By the same token, the order for
reinstatement of private respondent with backwages plus an award of actual or
compensatory, moral and exemplary damages must be struck down.
WHEREFORE, the petition is hereby GRANTED. The questioned orders of public respondent
NLRC dated September 13, 1988 and public respondent labor arbiter Bienvenido S.
Hernandez dated July 19, 1988 are hereby SET ASIDE and another judgment is hereby
rendered DISMISSING the complaint of private respondent, without pronouncement as to
costs.
SO ORDERED.
Fernan, C. J., Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Bidin, Cortes, GrioAquino, Medialdea and Regalado, JJ., concur.
Narvasa and Padilla, JJ., took no part.
Separate Opinion
SARMIENTO, J., dissenting.:
I vote to deny this petition for lack of merit.
From the records, it appears, that:
Complainant is a Doctor of Medicine with well-rounded experience in the field of Psychiatry.
In consideration of his impressive qualifications, respondents appointed him as a faculty
member in the UST Faculty of Medicine and Surgery, Department of Neurology and
Psychiatry. His services in respondent university are: Affiliate Faculty member for the school
year 1976-77; Instructor I in 1976-1977; Instructor III on January 5, 1977 and for the school
year 1978-1979; professor-in-charge of Psychiatry II for the school year 1978-1979; and
Instructor II for the school year 1979-1980. He was also allowed by respondents to hold his
clinic in the UST Hospital by virtue of a contract which started in 1978, renewable from year
to year. Complainant claims that respondents failed without justifiable reason to give him a
teaching load for the school year 1980-1981, and, therefore, he called the attention of the
Head of Academic Affairs and the Dean of the Faculty who referred the matter to the
University Rector. He further wrote a letter to the respondents on August 12, 1981, but the
same was not answered at all, and so he went to the Rector's Office on March 16 and 18,
1982, but was told that the Rector could not see or talk to him. For these reasons, the
complainant charged respondents of illegal dismissal as he was not given a teaching load for
the school year 1980-1981. He further alleged that the door leading to his clinic was locked
twice without notice. Based on the above allegations, complainant seeks recovery of actual
and moral damages allegedly suffered by him by reason of his dismissal by the respondents.
Most importantly, he alleges that he was also denied practice of his profession in the
hospital.

Respondents traversed complainant's charges alleging that complainant had not yet
acquired tenure of employment under the provisions of the UST Faculty Code as he had not
completed four (4) academic years of service; hence, his services in the university were no
longer renewed upon its expiration.
Respondents likewise denied complainant's allegation that the door leading to his clinic in
the hospital was locked.(Rollo, 68-70.)
The issues are:
1.
Whether or not complainant's services in the university had been constructively
terminated by the respondents when the former was not given a teaching load for the school
year 1980-1981; and
2.
Whether or not complainant's claims for actual, moral and exemplary damages as
well as attorney's fees are supported by the facts and jurisprudence.
It is Our considered opinion that complainant's services as a member of the faculty in
respondent university were terminated without just cause.
(Id., 70.)
As I have indicated, I sustain the NLRC. No grave abuse of discretion, so I find, has been
successfully attributed to it to warrant the extraordinary remedy of certiorari. prcd
There is no question that under the Manual of Regulations for Private Schools, employees on
probation status have three years within which to serve their probation. Within that period
they may not be terminated unless for just cause.
From the records, the private respondent had been with the petitioner-university as
instructor since 1976, when in 1980, he was laid off. He was also informed that there had
been "previous negative feedbacks regarding his teaching." (Id., 6.) That notwithstanding, I
submit he had acquired security of tenure after his three-year probation. The fact that it was
extended another year means, in my view, that the school had been satisfied of his
performance. The petitioner-university can not now be heard to say otherwise.
I am agreed that:
The records show that the ground relied upon by the respondents in not renewing
complainant's last appointment when no teaching load for the school year 1980-1981 was
assigned to him was due to the alleged termination of his appointment and there was no
obligation on the part of respondents to extend to him a permanent appointment in
accordance with the provisions of the UST Faculty Code or Manual of Regulations for private
Schools. We do not agree with respondents' view. Complainant was first employed as
Affiliate Faculty of respondent University in the first semester of the school year 1976-1977
or on September 29, 1976 as shown in his appointment signed by the Dean of the Faculty of
Medicine and Surgery of UST. (Annexes "A" & "B", Reply to Respondent's Position Paper.)
Additional evidences which will fortify the fact of complainant having rendered forty (40)
months of eight (8) semesters could be gleaned from the Faculty Statement of Earnings and
Deductions (Exhibits "D", "E" and "H" to "H-38", for complainant). Most likely, complainant's
early appointment (supra) had been deliberately omitted by the respondents to confuse the
Labor Arbiter a quo in believing that the former had not yet acquired the tenurial rights
under the Faculty Code. This, to our mind, is a scheme resorted to by the respondents to
preclude complainant from becoming a regular professor of the University. We find
complainant to have earned to his credit eight (8) semesters or four (4) academic years of
professional duties with the respondents. Since it to say, therefore, complainant met the
requirement to become a regular employee under the 3 years requirement in the Manual of

Regulations for Private Schools (par. 75), and, as such, complainant should not have been
deprived of subject load by the respondents for the school year 1980-1981.
(Decision, 4-6.) cdll
The university's contention that under the UST Faculty Code, tenure is acquired after four
years in office, has no merit. First, the code can not prevail over the Manual of Regulations
for Private Schools, which has the character and force of law.
Under the Manual:
75).
Full-time teachers who have rendered three consecutive years of satisfactory service
shall be considered permanent.
What "full-time" means is stated as follows:
76.
. . . For this purpose, a full-time teacher should be one whose total working day is
devoted to the school, has no other regular remunerative employment, and is paid on a
regular monthly basis regardless of the number of teaching hours.
It is true that under paragraph 78 of the Manual, "the normal teaching load of a full-time
instructor shall be eighteen hours a week." It is my reading of this provision, however, that a
full-time instructor can not merely be made to teach for longer hours. Hence, the succeeding
paragraph states:
79.
Any teaching assignment in excess of the foregoing must be taken up with the
Bureau, which case shall be considered only on the basis of educational qualifications,
experience, efficiency rating, and subject preparations of the teachers concerned.
It is my understanding of paragraph 78 that it operates as a restraint upon schools against a
grant of excessive manhours, although school authorities may prescribe a longer period, but
provided that it has the imprimatur of the Bureau of Private Schools. A lesser number of
hours, however, does not make an instructor part-time, if he has otherwise complied with
the requisites of paragraph 76. The decision of the NLRC indicates that the private
respondent worked on a full-time basis whatever the number of teaching hours given to
him and we can not disturb its findings. (See Decision, id., 6.)
Second, assuming that the four-year rule is permissible, the private respondent's tenure
during that period was nevertheless secure, which could only be perished by a valid cause.
"Negative feedbacks," short of actual violations of the faculty code, are no excuse for
termination.
The rule is that, unless otherwise provided by contract, a probationary employee can not be
dismissed (during the three-year period), unless dismissal is compelled by a just cause or
causes. However, if thereafter, the school finds the employee's performance unsatisfactory,
it is at liberty to rehire or not the employee, unless a grave abuse of discretion has been
committed. Here, the fact that the private respondent was allowed to stay one year more
gave the latter security of tenure. LLjur
I must not be understood, however, as holding that schools may or can not enter into
contracts for specific periods (less or more than three years; see also Manual, par. 74) with
teaching applicants. Here, however, there is no "contract" to speak of, other than the
implied agreement between the parties. In that case, the Manual is applicable.
The closure of the doctor's clinic, finally, is a valid basis for the award of moral and
exemplary damages, and attorney's fees.

Hence, I cast this dissenting vote.