Maranaw Hotels and Resort Corp. v. Calces

THIRD DIVISION

[G.R. No. 208592. October 11, 2017.]

MARANAW HOTELS AND RESORT CORPORATION, petitioner,vs. RICARDO A. CALCES, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution datedOctober 11, 2017, which reads as follows: CAIHTE

G.R. No. 208592 (MARANAW HOTELS AND RESORT CORPORATION, Petitioner, v. RICARDO A. CALCES, Respondent.) — Under review is the decision promulgated on February 13, 2013, 1 whereby the Court of Appeals (CA) upheld, with modifications, the decision of the National Labor Relations Commission (NLRC) allowing the re-computation of respondent Ricardo Calces' (Calces) monetary awards and the inclusion of collective bargaining agreement (CBA) benefits in the amounts to be awarded, i.e., service fees, thereby reversing the Labor Arbiter's order disallowing the same.

Antecedents

The relevant facts, as summarized by the CA, are as follows:

This case involves the execution of the Decision dated 16 November 2007 of the Labor Arbiter ("the 16 November 2007 Labor Arbiter Decision") on the Complaint for illegal dismissal, regularization and money claims for underpayment of wages, overtime pay, holiday pay, premium pay for holiday, rest day, service charge, service incentive leave and 13th month pay filed by Calces against the Hotel and Manila Resources Development Corporation ("MANRED"). In said Decision, the Labor Arbiter found that Calces was a regular employee of the Hotel and not of MANRED. He further found that Calces was illegally dismissed and therefore entitled to reinstatement, backwages (computed from the time of his illegal dismissal up to actual reinstatement), and the money claims granted by law. However, he dismissed the money claims that were not sufficiently proven. Thus, only the claims for holiday pay, service incentive leave pay and 13th month pay were granted together with backwages and reinstatement in the dispositive portion of his Decision, which reads:

"WHEREFORE, premises considered, judgment is hereby rendered finding respondent Maranaw Hotel & Resort Corporation (operating and managing Century Park Hotel) guilty of illegal dismissal.

Accordingly, respondent Hotel is hereby ordered to reinstate complainant Ricardo Calces to his former position with full backwages from the time of his illegal dismissal in October 2006 up to his actual reinstatement, computed as of even date as follows:

(Prevailing Minimum Wage and ECOLA x 26 days x no. of months)

1.	Oct. 12, 2006 — August 27, 2007 = 10.50 mos.
	P350.00 x 26 x 10.5 =	P95,550.00
2.	August 28, 2007 — Nov. 16, 2007 = 2.63 mos.
	P362 x 26 x 2.63 =	24,753.56
	Total Salary Differential	P120,303.56

Respondent Hotel is also ordered to pay complainant the following:

1.)	Holiday Pay (10 days/year)
	For 2003-2004:
	P280 x 10 = P2,800.00
	For 2004-2005
	P300 x 10 = 3,000.00
	For 2005-2006
	P350 x 10 = 3,500.00	P9,300.00
2.)	Service Incentive Leave Pay
	For 2003-2004
	P280 x 5 = P1,400.00
	For 2004-2005
	P300 x 5 = 1,500.00
	For 2005-2006
	P350 x 5 = 2,100.00	P5,000.00
3.)	13th Month Pay
	For 2003 (Oct.-December)
	P280 x 26 x 3/12 = P21,852.00
	For 2004 (Jan.-December)
	P300 x 26 x 12/12 = 7,800.00
	For 2005 (Jan.-December)
	P325 x 26 x 12/12 = 8,450.00
	For 2006 (Jan.-October)
	P350 x 26 x 10/12 = 7,583.33	45,685.33
	Total	P105,670.76

All other claims are Dismissed for lack of merit.

SO ORDERED."

Both the Hotel and Calces appealed this Decision to the NLRC, with the Hotel maintaining that Calces was not its employee, and Calces praying for his share in the service charges and the award of attorney's fees. The NLRC dismissed both appeals in its Decision dated 30 June 2008, although it modified the amount of the 13th month pay granted by the Labor Arbiter to Calces, to be consistent with the formula the Labor Arbiter used. DETACa

Both parties filed motions, on grounds they previously set forth in their appeals, for the NLRC to reconsider its Decision. The NLRC denied the Hotel's motion, while it found partial merit to Calces' motion. Thus, in its Resolution dated 30 June 2009 ("the 30 June 2009 NLRC Resolution"), the NLRC awarded Calces attorney's fees equivalent to 10% of the total award.

Still unsatisfied with the 30 June 2009 NLRC Resolution, the Hotel and Calces filed with Us their respective petitions for certiorari, which were not consolidated. On 25 June 2010, We dismissed Calces' petition, docketed as CA-G.R. SP No. 110437, for the payment of service charges. On 27 July 2010, We likewise dismissed the Hotel's petition, docketed as CA-G.R. SP No. 110529, as We found no grave abuse of discretion committed when the NLRC declared that Calces was an employee the Hotel illegally dismissed.

We denied the motions for reconsideration filed by the parties.

Calces filed before the Supreme Court a petition to review Our Decision in CA-G.R. SP No. 110437, which the Supreme Court denied in its Resolution dated 5 December 2011. The Hotel opted not to file a petition for review on certiorari.

In the meantime, on 16 January 2008, Calces filed before the Labor Arbiter a motion for execution, praying that a writ of execution be issued to enforce his right to reinstatement as regular bar boy of the Hotel pending appeal with the NLRC. Calces was reinstated on the payroll on 17 March 2008.

On 25 May 2008, Calces manifested that in reinstating him on the payroll, the Hotel paid him only his minimum salary. He lamented the fact that the Hotel did not grant him his share in service charges and other benefits which the Hotel's other regular employees enjoy under the Collective Bargaining Agreement ("CBA"). He reasoned that since the Labor Arbiter declared him a regular employee of the Hotel, the latter is obligated to pay him all CBA benefits to which regular employees are entitled, effective 19 January 2008, the date the Hotel filed its appeal with the NLRC. He thus moved for the issuance of a writ of execution to enforce his right to payroll reinstatement with payment of his basic pay at the CBA-prescribed rate, CBA benefits and service charges effective 19 January 2008.

On 4 November 2008, the Labor Arbiter issued an Order denying Calces' motion for payment of CBA benefits and service charges, reasoning that it is the voluntary arbitrators who have jurisdiction to hear the claim for CBA benefits. Further, all other money claims were dismissed in the 16 November 2007 Labor Arbiter Decision for lack of merit.

Calces appealed from this Order, invoking the same arguments he posited in his motion for payment of CBA benefits and service charges. He also moved for this appeal to be consolidated with his other appeal in NLRC.

This appeal and accompanying motion to consolidate were denied by the NLRC in its Resolution dated 30 June 2009 (the same Resolution which granted the award of attorney's fees equivalent to 10% of the total award). The pertinent portion of said Resolution states:

"As regard[s] "Complainant's Appeal with Memorandum of Appeal with Motion to Consolidate this Appeal" dated December 24, 2008, which respondents opposed, We find it bereft of merit because the issues raised therein were already raised in the Partial Appeal and Partial Motion for Reconsideration. Moreover, during complainant's payroll reinstatement, he is not entitled to other benefits except his wages because such issues were raised or questioned [by] respondents on appeal. This is why Article 223 of the Labor Code calls it "reinstatement pending appeal" which is either actual or payroll at the option of the employer. After the Decision shall have become final and executory, only then would We know the benefits that may be subject of execution.

WHEREFORE, the Partial Motion for Reconsideration of respondents is DENIED for lack of merit. The Partial Motion for Reconsideration of complainant is GRANTED in part. Respondents are ordered to pay complainant's attorney's fees equivalent to 10% of the total award. The other motion of complainant is DENIED for lack of merit. aDSIHc

SO ORDERED."

This 30 June 2009 NLRC Resolution became final and executory on 2 August 2009.

On 26 April 2010, Calces filed a Motion for Execution of Judgment, praying that a writ of execution be issued to enforce the 16 November 2007 Labor Arbiter Decision (as modified by the 30 June 2009 NLRC Resolution) ordering his reinstatement as a regular employee of the Hotel, with full backwages, the money claims awarded and 10% attorney's fees, per his computation. Attached to his motion was an Updated Computation of Money Claims and Backwages for the period ending 15 March 2010, enumerating his claims for his wages and ECOLA, holiday pay, service incentive leave pay, 13th month pay, service charges and attorney's fees.

Consequently, the Labor Arbiter rendered an Order on 21 June 2010, granting the issuance of a writ of execution for the satisfaction of Calces' monetary award pursuant to the 30 June 2009 Resolution of the NLRC.

On 9 August 2010, Calces filed with the Labor Arbiter an updated Computation of Monetary Claims and Backwages, indicating that his claims, backwages and attorney's fees as of 31 July 2010 amounted to P780,707.42. 2

Acting on Calces' motion for execution, the Labor Arbiter (LA) issued the corresponding writ of execution on, 3 and ordered the petitioner to pay his backwages, holiday pay, service incentive leave pay and 13th month pay, plus 10% of the total award as attorney's fees. The LA declined to include the collection of service fees, however, considering that his order dated November 4, 2008 had excluded the service fees. The writ of execution stated:

In view thereof, let the Writ of Execution issue for the satisfaction of complainant's backwages from the time of his dismissal on 12 October 2006 up to the time of his payroll reinstatement on 17 March 2008, and his Holiday Pay, Service Incentive Leave Pay and 13th month pay per Decision dated 16 November 2007, plus 10% of the total award for and as attorney's fees.

SO ORDERED.4

Calces appealed the said order of the LA claiming that the LA had thereby gravely erred in excluding his share in the service fees from the writ of execution.

As earlier mentioned, the NLRC ruled in favor of Calces, and set aside the writ of execution for being inconsistent with the final decision of the Court. 5 It opined that because the Court had declared Calces to have been illegally dismissed, he was entitled to all the prerogatives and benefits that the law allowed him to have, including full backwages; and that the service fees and other CBA benefits, being part of the term "full backwages," should be included in the writ of execution. 6 It decreed:

WHEREFORE, premises considered, complainant's appeal is GRANTED. The assailed Order dated January 27, 2011 of Labor Arbiter Geobel A. Bartolabac is SET ASIDE for not being in accord with the terms of the dispositive portion of the final and executory Decision of the Labor Arbiter dated November 16, 2007, as modified by the Decision dated June 30, 2008 and Resolution dated June 30, 2009 of the Commission, and Decision dated June 25, 2010 of the Court of Appeals in CA-G.R. SP No. 110437.

The entire records of this case are remanded to the Labor Arbiter for further appropriate proceedings relative to: [A] The computation of complainant's full backwages, reckoned from the time of his illegal dismissal on October 12, 2006 up to the time of his actual reinstatement, pursuant to the CBA provisions on salaries, gratuity, 13th month pay, Christmas bonus, service charge, vacation leave, sick leave, and other benefits; and

[B] The issuance of a writ of execution for the immediate: 1) actual reinstatement of complainant to his former position as Bar Boy; 2) payment of his full backwages from the time of his illegal dismissal on October 12, 2006 up to his actual reinstatement, as computed in paragraph [A] above, less payments he received therefor through payroll; and 3) payment of P9,300.00 as holiday pay, P5,000.00 as service incentive leave pay, P43,865.33 as 13th month pay, plus ten percent (10%) of his total award as attorney's fees. ETHIDa

SO ORDERED. 7

On February 13, 2013, the CA dismissed the petition for certiorari filed by the petitioner, ruling that Calces was entitled to his share in the service fees for the three-year period prior to his dismissal because such entitlement required proof showing he had actually reported to work on the days when the service fees were collected; that the period from the time of his illegal dismissal until actual reinstatement could not be similarly treated because he had been then physically prevented from rendering work; and that the service fees become part of his earnings and should be included in the computation of backwages. It imposed legal interest on the amounts due, disposing:

WHEREFORE, premises considered, the Petition is DISMISSED. The Decision of the NLRC in NLRC-NCR Case No. 00-10-08951-06 is AFFIRMED with MODIFICATION that the recomputation of Ricardo A. Calces' backwages from the time of his illegal dismissal up to his actual reinstatement must be pegged at the salary rate provided by the CBA for his position at the time of his dismissal.

The legal interest of 12% per annum is imposed on the total unpaid monetary award due Calces from the time of finality of the 5 December 2011 Supreme Court Decision until the total award is fully paid.

SO ORDERED.8

The CA denied the petitioners' motion for reconsideration through the resolution promulgated on July 30, 2013. 9

Issue

Hence, this recourse, wherein the petitioner submits that the inclusion of the service fees was erroneous because it was not the owner of the service fees under the CBA; that to include the service fees in the writ of execution would prejudice its employees who were the real owners of the service fees; and that the service fees should not be included in the writ of execution because they had already been distributed to the employees.

Ruling of the Court

The appeal lacks merit.

To begin with, the argument regarding the ownership of the service fees is being raised by the petitioner for the first time in this appeal. In order to resist the inclusion of the service fees in the backwages to be granted to Calces, the petitioner continuously relied on the Court's ruling in G.R. No. 195603 sustaining the CA's ruling that Calces was not entitled to the services fees. The NLRC and the CA agree to the effect that his non-entitlement to the service fees referred to the three-year period prior to his dismissal. Despite the NLRC's disregard of the argument, the petitioner still insisted on it in the CA. Only after the petitioner came to the Court in the present recourse that it abandons the argument and changes its theory of the case to focus on the ownership of the service fees.

The petitioner's abrupt turnaround and change of theory cannot be permitted, especially at this late stage in the proceedings. It is a fundamental rule of procedure that higher courts are precluded from entertaining matters neither alleged in the pleadings nor raised in the proceedings below, but ventilated for the first time only by motion for reconsideration or appeal. Such change of theory cannot be tolerated on appeal, not due to the strict application of procedural rules, but as a matter of fairness. 10

Nonetheless, even if the Court allows the petitioner to change its theory of the case, another area of stumble for the petitioner should prevent the Court from deciding the issue.

In its petition for review on certiorari, the petitioner submits that the Court should quash the writ of execution as issued by the NLRC because it has included properties belonging to a third person. The submission, which necessarily includes a litigation and determination of the issue of ownership that will require the presentation of evidence, cannot be allowed because this recourse disallows the consideration of issues of fact. Truly, this Court is not a trier of facts. 11

Section 1, Rule 45 of the Rules of Court limits to only questions of law the issues to be resolved, to wit: cSEDTC

Section 1. Filing of petition with Supreme Court. — A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth.

The distinction between questions of law and questions of fact is well-settled. In Tongonan Holdings and Development Corporation v. Escaño, Jr., 12 the Court has explained the difference between the two concepts as follows:

A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any of them. The resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact. Thus, the test of whether a question is one of law or of fact is not the appellation given to such question by the party raising the same; rather, it is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence, in which case, it is a question of law; otherwise it is a question of fact.

While there are instances wherein the Court has entertained questions of fact, such instances are exceptions rather than the rule. 13 Here, the petitioner has not shown that its appeal comes under the exception instead of under the rule.

WHEREFORE, the Court DENIES the petition for review on certiorari; AFFIRMS the decision promulgated on February 13, 2013; and ORDERS the petitioner to pay the costs of suit.

SO ORDERED."

Very truly yours,

(SGD.) WILFREDO V. LAPITANDivision Clerk of Court

 

Footnotes

1.Rollo, pp. 31-41; penned by Associate Justice Ricardo R. Rosario and concurred in by Associate Justice Rosmari D. Carandang and Associate Justice Leoncia Real-Dimagiba.

2.Id. at 31-36.

3.Id. at 321-323.

4.Id. at 323.

5.Id. at 332-350.

6.Id.

7.Id. at 349-350.

8.Id. at 41.

9.Id. at 43.

10.Duty Free Philippines Services, Inc. v. Tria, G.R. No. 174809, June 27, 2012, 675 SCRA 222, 231.

11.Co v. Vargas, G.R. No. 195167, November 16, 2011, 660 SCRA 451, 458.

12. G.R. No. 190994, September 7, 2011, 657 SCRA 306, 314, citing Republic of the Philippines v. Malabanan, G.R. No. 169067, October 6, 2010, 632 SCRA 338, 345.

13. It is "a settled rule that in the exercise of the Supreme Court's power of review, the Court is not a trier of facts and does not normally undertake the re-examination of the evidence presented by the contending parties during the trial of the case considering that the findings of facts of the CA are conclusive and binding on the Court. However, the Court had recognized several exceptions to this rule, to wit: (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioners main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion." New City Builders, Inc. v. National Labor Relations Commission, G.R. No. 149281, June 15,