G.R. Nos.

169295-96             November 20, 2006

REMINGTON INDUSTRIAL SALES CORPORATION, Petitioner, vs. ERLINDA CASTANEDA, Respondent.

DECISION

PUNO, J.:

Before this Court is the Petition for Review on Certiorari 1 filed by Remington Industrial Sales Corporation to reverse and
set aside the Decision2 of the Fourth Division of the Court of Appeals in CA-G.R. SP Nos. 64577 and 68477, dated
January 31, 2005, which dismissed petitioner’s consolidated petitions for certiorari, and its subsequent Resolution, 3 dated
August 11, 2005, which denied petitioner’s motion for reconsideration.

The antecedent facts of the case, as narrated by the Court of Appeals, are as follows:

The present controversy began when private respondent, Erlinda Castaneda ("Erlinda") instituted on March 2, 1998 a
complaint for illegal dismissal, underpayment of wages, non-payment of overtime services, non-payment of service
incentive leave pay and non-payment of 13th month pay against Remington before the NLRC, National Capital Region,
Quezon City. The complaint impleaded Mr. Antonio Tan in his capacity as the Managing Director of Remington.

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 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 the (sic) 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.

In a Decision4 dated January 19, 1999, the labor arbiter dismissed the complaint and ruled that the respondent was a
domestic helper under the personal service of Antonio Tan, finding that her work as a cook was not usually necessary and
desirable in the ordinary course of trade and business of the petitioner corporation, which operated as a trading company,
and that the latter did not exercise control over her functions. On the issue of illegal dismissal, the labor arbiter found that
it was the respondent who refused to go with the family of Antonio Tan when the corporation transferred office and that,
therefore, respondent could not have been illegally dismissed.

Upon appeal, the National Labor Relations Commission (NLRC) rendered a Decision, 5 dated November 23, 2000,
reversing the labor arbiter, ruling, viz:

We are not inclined to uphold the declaration below that complainant is a domestic helper of the family of Antonio Tan.
There was no allegation by respondent that complainant had ever worked in the residence of Mr. Tan. What is clear from
the facts narrated by the parties is that complainant continuously did her job as a cook in the office of respondent serving
the needed food for lunch and merienda of the employees. Thus, her work as cook inured not for the benefit of the family
members of Mr. Tan but solely for the individual employees of respondent.
Complainant as an employee of respondent company is even bolstered by no less than the certification dated May 23,
1997 issued by the corporate secretary of the company certifying that complainant is their bonafide employee. This is a
solid evidence which the Labor Arbiter simply brushed aside. But, such error would not be committed here as it would be
at the height of injustice if we are to declare that complainant is a domestic helper.

Complainant’s work schedule and being paid a monthly salary of ₱4,000.00 are clear indication that she is a company
employee who had been employed to cater to the food needed by the employees which were being provided by
respondent to form part of the benefit granted them.

With regard to the issue of illegal dismissal, we believe that there is more reason to believe that complainant was not
dismissed because allegedly she was the one who refused to work in the new office of respondent. However,
complainant’s refusal to join the workforce due to poor eyesight could not be considered abandonment of work or
voluntary resignation from employment.

Under the Labor Code as amended, an employee who reaches the age of sixty years old (60 years) has the option to
retire or to separate from the service with payment of separation pay/retirement benefit.

In this case, we notice that complainant was already 60 years old at the time she filed the complaint praying for separation
pay or retirement benefit and some money claims.

Based on Article 287 of the Labor Code as amended, complainant is entitled to be paid her separation pay/retirement
benefit equivalent to one-half (1/2) month for every year of service. The amount of separation pay would be based on the
prescribed minimum wage at the time of dismissal since she was then underpaid. In as much as complainant is underpaid
of her wages, it behooves that she should be paid her salary differential for the last three years prior to
separation/retirement.

x x x           x x x          x x x

WHEREFORE, premises considered, the assailed decision is hereby, SET ASIDE, and a new one is hereby entered
ordering respondents to pay complainant the following:

1. Salary differential - ₱12,021.12 2. Service Incentive Leave Pay - 2,650.00 3. 13th Month Pay differential - 1,001.76 4.
Separation Pay/retirement benefit - 36,075.00

Total - ₱51,747.88

SO ORDERED.

Petitioner moved to reconsider this decision but the NLRC denied the motion. This denial of its motion prompted petitioner
to file a Petition for Certiorari 6 with the Court of Appeals, docketed as CA-G.R. SP No. 64577, on May 4, 2001, imputing
grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the NLRC in (1) reversing in toto the
decision of the labor arbiter, and (2) awarding in favor of respondent salary differential, service incentive leave pay, 13th
month pay differential and separation benefits in the total sum of ₱51,747.88.

While the petition was pending with the Court of Appeals, the NLRC rendered another Decision 7 in the same case on
August 29, 2001. How and why another decision was rendered is explained in that decision as follows:

On May 17, 2001, complainant filed a Manifestation praying for a resolution of her Motion for Reconsideration and, in
support thereof, alleges that, sometime December 18, 2000, she mailed her Manifestation and Motion for Reconsideration
registered as Registered Certificate No. 188844; and that the said mail was received by the NLRC, through a certain
Roland Hernandez, on December 26, 2000. Certifications to this effect was issued by the Postmaster of the Sta. Mesa
Post Office bearing the date May 11, 2001 (Annexes A and B, Complainant’s Manifestation).

Evidence in support of complainant’s having actually filed a Motion for Reconsideration within the reglementary period
having been sufficiently established, a determination of its merits is thus, in order.

On the merits, the NLRC found respondent’s motion for reconsideration meritorious leading to the issuance of its second
decision with the following dispositive portion:
WHEREFORE, premises considered, the decision dated November 23, 2000, is MODIFIED by increasing the award of
retirement pay due the complainant in the total amount of SIXTY TWO THOUSAND FOUR HUNDRED THIRTY-SEVEN
and 50/100 (₱62,437.50). All other monetary relief so adjudged therein are maintained and likewise made payable to the
complainant.

SO ORDERED.

Petitioner challenged the second decision of the NLRC, including the resolution denying its motion for reconsideration,
through a second Petition for Certiorari 8 filed with the Court of Appeals, docketed as CA-G.R. SP No. 68477 and dated
January 8, 2002, this time imputing grave abuse of discretion amounting to lack of or excess of jurisdiction on the part of
the NLRC in (1) issuing the second decision despite losing its jurisdiction due to the pendency of the first petition for
certiorari with the Court of Appeals, and (2) assuming it still had jurisdiction to issue the second decision notwithstanding
the pendency of the first petition for certiorari with the Court of Appeals, that its second decision has no basis in law since
respondent’s motion for reconsideration, which was made the basis of the second decision, was not filed under oath in
violation of Section 14, Rule VII 9 of the New Rules of Procedure of the NLRC and that it contained no certification as to
why respondent’s motion for reconsideration was not decided on time as also required by Section 10, Rule VI 10 and
Section 15, Rule VII11 of the aforementioned rules.

Upon petitioner’s motion, the Court of Appeals ordered the consolidation of the two (2) petitions, on January 24, 2002,
pursuant to Section 7, par. b(3), Rule 3 of the Revised Rules of the Court of Appeals. It summarized the principal issues
raised in the consolidated petitions as follows:

1. Whether respondent is petitioner’s regular employee or a domestic helper;

2. Whether respondent was illegally dismissed; and

3. Whether the second NLRC decision promulgated during the pendency of the first petition for certiorari has
basis in law.

On January 31, 2005, the Court of Appeals dismissed the consolidated petitions for lack of merit, finding no grave abuse
of discretion on the part of the NLRC in issuing the assailed decisions.

On the first issue, it upheld the ruling of the NLRC that respondent was a regular employee of the petitioner since the
former worked at the company premises and catered not only to the personal comfort and enjoyment of Mr. Tan and his
family, but also to that of the employees of the latter. It agreed that petitioner enjoys the prerogative to control
respondent’s conduct in undertaking her assigned work, particularly the nature and situs of her work in relation to the
petitioner’s workforce, thereby establishing the existence of an employer-employee relationship between them.

On the issue of illegal dismissal, it ruled that respondent has attained the status of a regular employee in her service with
the company. It noted that the NLRC found that no less than the company’s corporate secretary certified that respondent
is a bonafide company employee and that she had a fixed schedule and routine of work and was paid a monthly salary of
₱4,000.00; that she served with petitioner for 15 years starting in 1983, buying and cooking food served to company
employees at lunch and merienda; and that this work was usually necessary and desirable in the regular business of the
petitioner. It held that as a regular employee, she enjoys the constitutionally guaranteed right to security of tenure and that
petitioner failed to discharge the burden of proving that her dismissal on January 15, 1998 was for a just or authorized
cause and that the manner of dismissal complied with the requirements under the law.

Finally, on petitioner’s other arguments relating to the alleged irregularity of the second NLRC decision, i.e., the fact that
respondent’s motion for reconsideration was not under oath and had no certification explaining why it was not resolved
within the prescribed period, it held that such violations relate to procedural and non-jurisdictional matters that cannot
assume primacy over the substantive merits of the case and that they do not constitute grave abuse of discretion
amounting to lack or excess of jurisdiction that would nullify the second NLRC decision.

The Court of Appeals denied petitioner’s contention that the NLRC lost its jurisdiction to issue the second decision when it
received the order indicating the Court of Appeals’ initial action on the first petition for certiorari that it filed. It ruled that the
NLRC’s action of issuing a decision in installments was not prohibited by its own rules and that the need for a second
decision was justified by the fact that respondent’s own motion for reconsideration remained unresolved in the first
decision. Furthermore, it held that under Section 7, Rule 65 of the Revised Rules of Court, 12 the filing of a petition for
certiorari does 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.
From this decision, petitioner filed a motion for reconsideration on February 22, 2005, which the Court of Appeals denied
through a resolution dated August 11, 2005.

Hence, the present petition for review.

The petitioner raises the following errors of law: (1) the Court of Appeals erred in affirming the NLRC’s ruling that the
respondent was petitioner’s regular employee and not a domestic helper; (2) the Court of Appeals erred in holding that
petitioner was guilty of illegal dismissal; and (3) the Court of Appeals erred when it held that the issuance of the second
NLRC decision is proper.

The petition must fail. We affirm that respondent was a regular employee of the petitioner and that the latter was guilty of
illegal dismissal.

Before going into the substantive merits of the present controversy, we shall first resolve the propriety of the issuance of
the second NLRC decision.

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.13 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, 14 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. 15 Labor cases must be decided according to justice and equity and the substantial
merits of the controversy.16 Rules of procedure are but mere tools designed to facilitate the attainment of justice. 17 Their
strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice,
must always be avoided.18

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 correct
and not the product of the imagination or a matter of speculation, and that the pleading is filed in good faith. 19 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.20

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. 21

This contention must fail.

Under Article 22322 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. 23 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";24 (b) fundamental consideration of substantial justice; 25 (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;26 and (d) special circumstances of the case combined with its legal merits 27 or the amount and the
issue involved.28

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, 29 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 30 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. 31 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.

Having resolved the procedural matters, we shall now delve into the merits of the petition to determine whether
respondent is a domestic helper or a regular employee of the petitioner, and whether the latter is 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, 32 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.

x x x           x x x          x x x

The criteria is the personal comfort and enjoyment of the family of the employer in 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 33 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.34 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;35 she had a fixed schedule and routine of work and was
paid a monthly salary of ₱4,000.00; 36 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.37

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.1âwphi1

Having determined that the respondent is petitioner’s regular employee, we now proceed to ascertain the legality of her
dismissal from employment.

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
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 just39 or authorized40 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. 41 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. 42 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. 43 The intent to discontinue the
employment must be shown by clear proof that it was deliberate and unjustified. 44 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 well-
settled 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. 45

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. 46 The employer’s case succeeds or fails on the
strength of its evidence and not on the weakness of the employee’s defense. 47 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. 48

IN VIEW WHEREOF, the petition is DENIED for lack of merit. The assailed Decision dated January 31, 2005, and the
Resolution dated August 11, 2005, of the Court of Appeals in CA-G.R. SP Nos. 64577 and 68477 are AFFIRMED. Costs
against petitioner.

SO ORDERED.