LABOR STANDARDS | EMPLOYMENT OF HOUSEHELPER

107. Ultra Villa Food Haus

Geniston (1999) G.R. 120473

vs,

Facts:
Private respondent Renato Geniston was
employed by petitioner Ultra Villa Food
House and/or its alleged owner Rosie Tio.
Private respondent alleged that he was
employed as a "do it all guy" acting as
waiter, driver and maintenance man, in
said restaurant. During the elections of
May 11, 1992, private respondent acted as
Poll Watcher. The counting of votes lasted
until 3:00 p.m. the next day, May 12.
Private respondent did not report for work
on both days on account of his poll
watching. As a result, his employment was
terminated by petitioner Tio on the ground
of abandonment.
Private respondent filed a case of illegal
dismissal against petitioners. Petitioner Tio
maintained that private respondent was
her personal driver, not an employee of
Ultra Villa Food Haus and denied
dismissing private respondent whom she
claimed abandoned his job.
The Labor Arbiter found that private
respondent
was
indeed
petitioner's
personal
driver.
The
Labor Arbiter
concluded that private respondent, being
a personal driver, was not entitled to
overtime pay, premium pay, service
incentive leave and 13th month pay.On
appeal, the NLRC reversed the decision of
the labor arbiter and ordered the
reinstatement of private respondent and
payment of backwages, overtime pay,
premium pay for holiday and rest days,
etc. The NLRC also granted private
respondent separation pay in lieu of
reinstatement
on
account
of
the
establishment's closure but denied his
prayer for moral, actual and exemplary
damages, and attorney's fees. Petitioner
moved for reconsideration but was denied.
Issues:
(1)
Whether private respondent was an
employee of the Ultra Villa Food Haus or
the personal driver of petitioner; and
(2)
Whether private respondent was
illegally dismissed from employment.
Held:

I. THE LABOR ARBITER CORRECTLY RULED

THAT
PRIVATE
RESPONDENT
WAS
PETITIONER'S PERSONAL DRIVER AND NOT
AN
EMPLOYEE
OF
THE
SUBJECT
ESTABLISHMENT. We find that private
respondent was indeed the personal driver
of petitioner, and not an employee of the
Ultra Villa Food Haus. There is substantial
evidence to support such conclusion,
namely:
(1) Private respondent's admission during
the mandatory conference that he was
petitioner's personal driver.
(2) Copies of the Ultra Villa Food Haus
payroll which do not contain private
respondent's name.
(3) Affidavits of Ultra Villa Food Haus
employees
attesting
that
private
respondent was never an employee of said
establishment.
(4) Petitioner Tio's undisputed allegation
that she works as the branch manager of
the CFC Corporation whose office is
located in Mandaue City. This would
support the Labor Arbiter's observation
that private respondents' position as
driver would be "incongruous" with his
functions as a waiter of Ultra Villa Food
Haus.
(5)
The
Joint
Affidavit
of
the
warehouseman and warehouse checker of
the CFC Corporation stating that: Renato
Geniston usually drive[s] Mrs. Tio from her
residence to the office. Thereafter, Mr.
Geniston will wait for Mrs. Tio in her car.
Most of the time, Renato Geniston slept in
the car of Mrs. Tio and will be awakened
only when the latter will leave the office
for lunch. Mr. Geniston will again drive
Mrs. Tio to the office at around 2:00
o'clock in the afternoon and thereafter the
former will again wait for Mrs. Tio at the
latter's car until Mrs. Tio will again leave
the office to make her rounds at our
branch office at the downtown area. In
contrast, private respondent has not
presented any evidence other than his
self-serving allegation to show that he was
employed in the Ultra Villa Food Haus.
On this issue, therefore, the evidence
weighs heavily in petitioner's favor. The
Labor Arbiter thus correctly ruled that
private
respondent
was
petitioner's
personal driver and not an employee of
the subject establishment. Accordingly,

LABOR STANDARDS | EMPLOYMENT OF HOUSEHELPER

the terms and conditions of private
respondent's employment are governed
by Chapter III, Title III, Book III of the Labor
Code as well as by the pertinent provisions
of the Civil Code.
PETITIONER IS NOT OBLIGED UNDER THE
LAW TO GRANT PRIVATE RESPONDENT
OVERTIME PAY, HOLIDAY PAY, PREMIUM
PAY AND SERVICE INCENTIVE LEAVE.
Chapter III, Title III, Book III, however, is
silent on the grant of overtime pay,
holiday pay, premium pay and service
incentive leave to those engaged in the
domestic or household service.
Moreover,
the
specific
provisions
mandating these benefits are found in
Book III, Title I of the Labor Code, and
Article 82, which defines the scope of the
application of these provisions, expressly
excludes domestic helpers from its
coverage:
Art. 82. Coverage. The provision of this
title shall apply to employees in all
establishments and undertakings whether
for profit or not, but not to government
employees, managerial employees, field
personnel, members of the family of the
employer who are dependent on him for
support, domestic helpers, persons in the
personal service of another, and workers
who are paid by results as determined by
the Secretary of Labor in appropriate
regulations.
The limitations set out in the above article
are echoed in Book III of the Omnibus
Rules Implementing the Labor Code.
Clearly then, petitioner is not obliged by
law to grant private respondent any of
these benefits.
II. PRIVATE RESPONDENT IS ENTITLED TO
BE
INDEMNIFIED
FOR
HIS
UNJUST
DISMISSAL
AND
FOR
PETITIONER'S
FAILURE
TO
COMPLY
WITH
THE
REQUIREMENTS OF DUE PROCESS IN
EFFECTING HIS DISMISSAL.
To constitute abandonment, two requisites
must concur: (1) the failure to report to
work or absence without valid or justifiable
reason, and (2) a clear intention to sever
the employer-employee relationship as
manifested by some overt acts, with the
second
requisite
as
the
more
determinative factor.
The burden of proving abandonment as a
just cause for dismissal is on the

employer. Petitioner failed to discharge

this burden. The only evidence adduced
by petitioner to prove abandonment is her
affidavit. It is quite unbelievable that
private respondent would leave a stable
and relatively well paying job as
petitioner's family driver to work as an
election watcher.
Though the latter may pay more in a day,
elections in this country are so far in
between that it is unlikely that any person
would abandon his job to embark on a
career as an election watcher, the
functions of which are seasonal and
temporary in nature. Consequently, we do
not find private respondent to have
abandoned his job. His dismissal from
petitioner's
employ
being
unjust,
petitioner is entitled to an indemnity
under Article 149 of the Labor Code.
Petitioner likewise concedes that she
failed to comply with due process in
dismissing
private
respondent
since
private
respondent
had
already
abandoned his job. As we have shown
earlier however, petitioner's theory of
abandonment has no leg to stand on, and
with it, her attempts to justify her failure
to accord due process must also fall.
Accordingly, private respondent is ordered
to pay private respondent the sum of
P1,000.00.
108. Remington
Industrial
Sales
Corp,. vs Castaneda (2007) G.R.
153477
Facts:
Erlinda alleged that she started working in
August 1983 as company cook with a
salary of Php 4,000.00 for Remington, a
corporation engaged in the trading
business; that she worked for six (6) days
a week, starting as early as 6:00 a.m.
because she had to do the marketing and
would end at around 5:30 p.m., or even
later, after most of the employees, if not
all, had left the company premises; that
she continuously worked with Remington
until she was unceremoniously prevented
from reporting for work when Remington
transferred to a new site in Edsa, Caloocan
City.
She averred that she reported for work at
the new site in Caloocan City on January

LABOR STANDARDS | EMPLOYMENT OF HOUSEHELPER

15, 1998, only to be informed that
Remington no longer needed her services.
Erlinda believed that her dismissal was
illegal because she was not given the
notices required by law; hence, she filed
her complaint for reinstatement without
loss of seniority rights, salary differentials,
service incentive leave pay, 13th month
pay and 10% attorney's fees.
Remington denied that it dismissed Erlinda
illegally. It posited that Erlinda was a
domestic helper, not a regular employee;
Erlinda worked as a cook and this job had
nothing to do with Remington's business
of trading in construction or hardware
materials, steel plates and wire rope
products. It also contended that contrary
to Erlinda's allegations that she worked for
eight (8) hours a day, Erlinda's duty was
merely to cook lunch and "merienda",
after which her time was hers to spend as
she pleased. Remington also maintained
that it did not exercise any degree of
control and/or supervision over Erlinda's
work as her only concern was to ensure
that the employees' lunch and "merienda"
were available and served at the
designated time. Remington likewise
belied Erlinda's assertion that her work
extended beyond 5:00 p.m. as she could
only leave after all the employees had
gone.
The truth, according to Remington, is that
Erlinda did not have to punch any time
card in the way that other employees of
Remington did; she was free to roam
around the company premises, read
magazines, and to even nap when not
doing her assigned chores. Remington
averred
that
the
illegal
dismissal
complaint lacked factual and legal bases.
Allegedly, it was Erlinda who refused to
report for work when Remington moved to
a new location in Caloocan City.
LA and NLRC decided the case in favor of
the complainant. Petitioner appealed to
the CA. While the petition was pending
with the Court of Appeals, the NLRC
rendered another Decision in the same
case on August 29, 2001, which included
the retirement pay not included in their
first decision. Petitioner challenged the
second decision of the NLRC, including the
resolution
denying
its
motion
for
reconsideration, through a second

Issues and Rulings: The petition must

fail.
I.
Whether
or
not
respondent
is
petitioner's regular employee or a
domestic helper.
We affirm that respondent was a regular
employee of the petitioner and that the
latter was guilty of illegal dismissal.
Petitioner relies heavily on the affidavit of
a certain Mr. Antonio Tan and contends
that respondent is the latter's domestic
helper and not a regular employee of the
company since Mr. Tan has a separate and
distinct personality from the petitioner. It
maintains that it did not exercise control
and supervision over her functions; and
that it operates as a trading company and
does not engage in the restaurant
business, and therefore respondent's work
as a cook, which was not usually
necessary or desirable to its usual line of
business or trade, could not make her its
regular employee.This contention fails to
impress.
In Apex Mining Company, Inc. v. NLRC, this
Court held that a househelper in the staff
houses of an industrial company was a
regular employee of the said firm. We
ratiocinated that:Under Rule XIII, Section
1(b), Book 3 of the Labor Code, as
amended, the terms "househelper" or
"domestic servant" are defined as follows:
"The term 'househelper' as used herein is
synonymous to the term 'domestic
servant' and shall refer to any person,
whether male or female, who renders
services in and about the employer's
home and which services are usually
necessary
or
desirable
for
the
maintenance and enjoyment thereof, and
ministers exclusively to the personal
comfort and enjoyment of the employer's
family."
The
foregoing
definition
clearly
contemplates
such
househelper
or
domestic servant who is employed in the
employer's home to minister exclusively to
the personal comfort and enjoyment of the
employer's family. Such definition covers
family drivers, domestic servants, laundry
women, yayas, gardeners, houseboys and
similar househelps.
The criteria is the personal comfort and
enjoyment of the family of the employer in

LABOR STANDARDS | EMPLOYMENT OF HOUSEHELPER

the home of said employer. While it may
be true that the nature of the work of a
househelper,
domestic
servant
or
laundrywoman in a home or in a company
staffhouse may be similar in nature, the
difference in their circumstances is that in
the former instance they are actually
serving the family while in the latter case,
whether it is a corporation or a single
proprietorship engaged in business or
industry or any other agricultural or
similar pursuit, service is being rendered
in the staffhouses or within the premises
of the business of the employer. In such
instance, they are employees of the
company or employer in the business
concerned entitled to the privileges of a
regular employee.
Petitioner contends that it is only when the
househelper or domestic servant is
assigned to certain aspects of the
business of the employer that such
househelper or domestic servant may be
considered as such an employee. The
Court finds no merit in making any such
distinction. The mere fact that the
househelper or domestic servant is
working within the premises of the
business of the employer and in relation to
or in connection with its business, as in its
staffhouses for its guest or even for its
officers and employees, warrants the
conclusion that such househelper or
domestic servant is and should be
considered as a regular employee of the
employer and not as a mere family
househelper or domestic servant as
contemplated in Rule XIII, Section 1(b),
Book 3 of the Labor Code, as amended.
In the case at bar, the petitioner itself
admits in its position paper that
respondent worked at the company
premises and her duty was to cook and
prepare
its
employees'
lunch
and
merienda. Clearly, the situs, as well as the
nature of respondent's work as a cook,
who caters not only to the needs of Mr. Tan
and his family but also to that of the
petitioner's employees, makes her fall
squarely within the definition of a regular
employee under the doctrine enunciated
in the Apex Mining case. That she works
within company premises, and that she
does not cater exclusively to the personal
comfort of Mr. Tan and his family, is

reflective of the existence of the

petitioner's right of control over her
functions, which is the primary indicator of
the existence of an employer-employee
relationship.
Moreover, it is wrong to say that if the
work is not directly related to the
employer's business, then the person
performing such work could not be
considered an employee of the latter. The
determination of the existence of an
employer-employee relationship is defined
by law according to the facts of each case,
regardless of the nature of the activities
involved. Indeed, it would be the height of
injustice if we were to hold that despite
the fact that respondent was made to
cook lunch and merienda for the
petitioner's
employees,
which
work
ultimately redounded to the benefit of the
petitioner corporation, she was merely a
domestic worker of the family of Mr. Tan.
We note the findings of the NLRC, affirmed
by the Court of Appeals, that no less than
the company's corporate secretary has
certified that respondent is a bonafide
company employee; she had a fixed
schedule and routine of work and was paid
a monthly salary of P4,000.00; she served
with the company for 15 years starting in
1983, buying and cooking food served to
company employees at lunch and
merienda, and that this service was a
regular feature of employment with the
company. Indubitably, the Court of
Appeals, as well as the NLRC, correctly
held
that
based
on
the
given
circumstances, the respondent is a regular
employee of the petitioner.
II. Whether or not respondent was illegally
dismissed.
Petitioner contends that there was
abandonment on respondent's part when
she refused to report for work when the
corporation transferred to a new location
in Caloocan City, claiming that her poor
eyesight would make long distance travel
a problem. Thus, it cannot be held guilty
of illegal dismissal.
On the other hand, the respondent claims
that when the petitioner relocated, she
was no longer called for duty and that
when she tried to report for work, she was
told that her services were no longer
needed. She contends that the petitioner

LABOR STANDARDS | EMPLOYMENT OF HOUSEHELPER

dismissed her without a just or authorized
cause and that she was not given prior
notice, hence rendering the dismissal
illegal.
We rule for the respondent. As a regular
employee, respondent enjoys the right to
security of tenure under Article 279 38 of
the Labor Code and may only be
dismissed for a just or authorized cause,
otherwise the dismissal becomes illegal
and the employee becomes entitled to
reinstatement
and
full
backwages
computed from the time compensation
was withheld up to the time of actual
reinstatement.
Abandonment is the deliberate and
unjustified refusal of an employee to
resume his employment. It is a form of
neglect of duty; hence, a just cause for
termination of employment by the
employer under Article 282 of the Labor
Code, which enumerates the just causes
for termination by the employer. For a
valid finding of abandonment, these two
factors should be present: (1) the failure to
report for work or absence without valid or
justifiable reason; and (2) a clear intention
to sever employer-employee relationship,
with
the
second
as
the
more
determinative factor which is manifested
by overt acts from which it may be
deduced that the employee has no more
intention
to
work.
The
intent
to
discontinue the employment must be
shown by clear proof that it was deliberate
and unjustified. This, the petitioner failed
to do in the case at bar.
Alongside the petitioner's contention that
it was the respondent who quit her
employment and refused to return to
work, greater stock may be taken of the
respondent's immediate filing of her
complaint with the NLRC. Indeed, an
employee who loses no time in protesting
her layoff cannot by any reasoning be said
to have abandoned her work, for it is wellsettled that the filing of an employee of a
complaint for illegal dismissal with a
prayer for reinstatement is proof enough
of her desire to return to work, thus,
negating the employer's charge of
abandonment.
In termination cases, the burden of proof
rests upon the employer to show that the
dismissal is for a just and valid cause;

failure to do so would necessarily mean

that the dismissal was illegal. The
employer's case succeeds or fails on the
strength of its evidence and not on the
weakness of the employee's defense. If
doubt exists between the evidence
presented by the employer and the
employee, the scales of justice must be
tilted in favor of the latter.
III. Whether the second NLRC decision
promulgated during the pendency of the
first petition for certiorari has basis in law.
The
petitioner
contends
that
the
respondent's motion for reconsideration,
upon which the second NLRC decision was
based, was not under oath and did not
contain a certification as to why it was not
decided on time as required under the
New Rules of Procedure of the NLRC.
Furthermore, the former also raises for the
first time the contention that respondent's
motion was filed beyond the ten (10)calendar day period required under the
same Rules, since the latter received a
copy of the first NLRC decision on
December 6, 2000, and respondent filed
her motion only on December 18, 2000.
Thus,
according
to
petitioner,
the
respondent's motion for reconsideration
was a mere scrap of paper and the second
NLRC decision has no basis in law. We do
not agree.
It is well-settled that the application of
technical rules of procedure may be
relaxed to serve the demands of
substantial justice, particularly in labor
cases. Labor cases must be decided
according to justice and equity and the
substantial merits of the controversy.
Rules of procedure are but mere tools
designed to facilitate the attainment of
justice. Their strict and rigid application,
which would result in technicalities that
tend to frustrate rather than promote
substantial justice, must always be
avoided.
This Court has consistently held that the
requirement of verification is formal, and
not jurisdictional. Such requirement is
merely a condition affecting the form of
the pleading, non-compliance with which
does not necessarily render it fatally
defective. Verification is simply intended
to secure an assurance that the
allegations in the pleading are true and

LABOR STANDARDS | EMPLOYMENT OF HOUSEHELPER

correct and not the product of the
imagination or a matter of speculation,
and that the pleading is filed in good faith.
The court may order the correction of the
pleading if verification is lacking or act on
the pleading although it is not verified, if
the attending circumstances are such that
strict compliance with the rules may be
dispensed with in order that the ends of
justice may thereby be served.
Anent the argument that respondent's
motion for reconsideration, on which the
NLRC's second decision was based, was
filed out of time, such issue was only
brought up for the first time in the instant
petition where no new issues may be
raised by a party in his pleadings without
offending the right to due process of the
opposing party.
Nonetheless, the petitioner asserts that
the respondent received a copy of the
NLRC's first decision on December 6,
2000, and the motion for reconsideration
was filed only on December 18, 2000, or
two (2) days beyond the ten (10)-calendar
day period requirement under the New
Rules of Procedure of the NLRC and should
not be allowed. This contention must fail.
Under Article 223 of the Labor Code, the
decision of the NLRC shall be final and
executory after ten (10) calendar days
from the receipt thereof by the parties.
While it is an established rule that the
perfection of an appeal in the manner and
within the period prescribed by law is not
only mandatory but jurisdictional, and
failure to perfect an appeal has the effect
of rendering the judgment final and
executory, it is equally settled that the
NLRC may disregard the procedural lapse
where there is an acceptable reason to
excuse tardiness in the taking of the
appeal. Among the acceptable reasons
recognized by this Court are (a) counsel's
reliance on the footnote of the notice of
the decision of the Labor Arbiter that "the
aggrieved party may appeal . . . within ten
(10) working days"; (b) fundamental
consideration of substantial justice; (c)
prevention of miscarriage of justice or of
unjust enrichment, as where the tardy
appeal is from a decision granting
separation pay which was already granted
in an earlier final decision; and (d) special

circumstances of the case combined with

its legal merits or the amount and the
issue involved.
We hold that the particular circumstances
in the case at bar, in accordance with
substantial justice, call for a liberalization
of the application of this rule. Notably,
respondent's last day for filing her motion
for reconsideration fell on December 16,
2000, which was a Saturday. In a number
of cases, we have ruled that if the tenth
day for perfecting an appeal fell on a
Saturday, the appeal shall be made on the
next working day. The reason for this
ruling is that on Saturdays, the office of
the NLRC and certain post offices are
closed. With all the more reason should
this doctrine apply to respondent's filing of
the motion for reconsideration of her
cause, which the NLRC itself found to be
impressed with merit. Indeed, technicality
should not be permitted to stand in the
way of equitably and completely resolving
the rights and obligations of the parties for
the ends of justice are reached not only
through the speedy disposal of cases but,
more importantly, through a meticulous
and comprehensive evaluation of the
merits of a case.
Finally, as to petitioner's argument that
the NLRC had already lost its jurisdiction
to decide the case when it filed its petition
for certiorari with the Court of Appeals
upon the denial of its motion for
reconsideration, suffice it to state that
under Section 7 of Rule 65 of the Revised
Rules of Court, the petition shall not
interrupt the course of the principal case
unless a temporary restraining order or a
writ of preliminary injunction has been
issued against the public respondent from
further proceeding with the case. Thus,
the mere pendency of a special civil action
for certiorari, in connection with a pending
case in a lower court, does not interrupt
the course of the latter if there is no writ
of injunction. Clearly, there was no grave
abuse of discretion on the part of the
NLRC in issuing its second decision which
modified the first, especially since it failed
to consider the respondent's motion for
reconsideration when it issued its first
decision.