Case 18 Ricardo Fernandez vs. NLRC and DM Consunji, Inc.

FACTS: On November 1974 Fernandez was hired by DM Consunji. He worked for the latter until
March 1936, when his employment was terminated on the ground that the project to which he was
assigned was already completed. He thus filed a complaint for illegal dismissal with the Labor
Arbiter. The Labor Arbiter (May 1988) found that Fernandez worked continuously in various projects
ranging from 5 to 20 years and belonged to a work pool and held that his dismissal was illegal.
Private Respondent appealed, on the ground that Fernandez was a project employee hired on a
project-to-project basis, depending on the availability of projects. It pointed to the gaps in Fernandez
employment history to show that he was hired on an off-and-on basis.
The NLRC in view of (1) lack of evidence to prove the continuous employment of Fernandez, and
(2) the intermittent nature of their work as shown by project contracts, ruled that Fernandez was a
project employee.

On July 1991 Fernandez interposed a MFR which was denied for lack of merit. The NLRC also
noted that the MFR was filed only on January 29, 1990, which was beyond the 10day reglementary
period from date of receipt of decision on November 13, 1989. Without mentioning the denial of the
MFR, Ricardo Fernandez filed a petition before the SC, assailing the NLRC Decision, arguing that it
is more in keeping with the intent and spirit of the law to consider him as regular employees.
ISSUE: W/N the NLRC acted with GAD in reversing the Labor Arbiterâs decision by dismissing the
complaint for illegal dismissal on the finding that they were project employees.
RULING: NO
[Procedural] The yardstick to measure the timeliness of a petition for certiorari is the
reasonableness of the duration of time that had expired from the commission of the acts complained
of up to the institution of the proceedings to annul the same. Here, Fernandez negligence or
indifference for such a long period of time (November 13, 1989 - receipt of Decision; August 2, 1991
- receipt of denial of MFR; July 21, 1992 - filing of petition for certiorari) has in the meantime
rendered the questioned decision final and no longer assailable.
[Substantive] DM Consunji presented material documents (covering November 5, 1974 - March
23, 1986) showing that Fernandez was hired as a project employee with the specific dates of hiring,
duration of hiring, dates of his lay-offs, and the termination reports submitted to the Minister of Labor.
Such documents clearly showed gaps of month/s between the hiring of Fernandez in numerous
projects where he was assigned. Thus, he is governed by Policy Instruction No. 20:
Project employees are those employed in connection with a particular construction project. They
are not entitled to termination pay if they are terminated as a result of the completion of the project or
any phase thereof in which they are employed, regardless of the number of projects in which they
have been employed by a particular construction company.
The proviso in the second par. of Art. 280 Labor Code deems as regular employees only those
casual employees who have rendered at least one year of service regardless of the fact that such
service may be continuous or broken. It is NOT applicable to project employees who are specifically
exempt therefrom