G.R. No.

96132 June 26, 1992

ORIEL MAGNO, petitioner, vs. HONORABLE COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondents.

PARAS, J.:

This is an appeal by certiorari under Rule 45 of the Revised Rules of Court, from the decision* of the respondent Court of Appeals which affirmed in toto
the decision of the Regional Trial Court of Quezon City, Branch 104 finding the accused petitioner, guilty of violations of Batas Pambansa Blg. 22, in
Criminal Cases Q-35693 to 35696 before they were elevated on appeal to the respondent appellate Court under CA-G.R. CR No. 04889.
The antecedent facts and circumstances of the four (4) counts of the offense charged, have been clearly illustrated, in the Comment of the Office of the
Solicitor General as official counsel for the public respondent, thus:
Petitioner was in the process of putting up a car repair shop sometime in April 1983, but a did not have complete equipment that could make his venture
workable. He also had another problem, and that while he was going into this entrepreneurship, he lacked funds with which to purchase the necessary
equipment to make such business operational. Thus, petitioner, representing Ultra Sources International Corporation, approached Corazon Teng, (private
complainant) Vice President of Mancor Industries (hereinafter referred to as Mancor) for his needed car repair service equipment of which Mancor was a
distributor, (Rollo, pp. 40-41)
Having been approached by petitioner on his predicament, who fully bared that he had no sufficient funds to buy the equipment needed, the former
(Corazon Teng) referred Magno to LS Finance and Management Corporation (LB Finance for brevity) advising its Vice-President, Joey Gomez, that
Mancor was willing and able to supply the pieces of equipment needed if LS Finance could accommodate petitioner and provide him credit facilities.
(Ibid., P. 41)
The arrangement went through on condition that petitioner has to put up a warranty deposit equivalent to thirty per centum (30%) of the total value of
the pieces of equipment to be purchased, amounting to P29,790.00. Since petitioner could not come up with such amount, he requested Joey Gomez on a
personal level to look for a third party who could lend him the equivalent amount of the warranty deposit, however, unknown to petitioner, it was
Corazon Teng who advanced the deposit in question, on condition that the same would be paid as a short term loan at 3% interest (Ibid., P. 41)
The specific provision in the Leasing Agreement, reads:
1.1. WARRANTY DEPOSIT — Before or upon delivery of each item of Equipment, the Lessee shall deposit with the Lessor such sum or sums specified in
Schedule A to serve as security for the faithful performance of its obligations.
This deposit shall be refunded to the Lessee upon the satisfactory completion of the entire period of Lease, subject to the conditions of clause 1.12 of this
Article. (Ibid., p. 17)
As part of the arrangement, petitioner and LS Finance entered into a leasing agreement whereby LS Finance would lease the garage equipments and
petitioner would pay the corresponding rent with the option to buy the same. After the documentation was completed, the equipment were delivered to
petitioner who in turn issued a postdated check and gave it to Joey Gomez who, unknown to the petitioner, delivered the same to Corazon Teng. When the
check matured, Petitioner requested through Joey Gomez not to deposit the check as he (Magno) was no longer banking with Pacific Bank.
To replace the first check issued, petitioner issued another set of six (6) postdated checks. Two (2) checks dated July 29, 1983 were deposited and cleared
while the four (4) others, which were the subject of the four counts of the aforestated charges subject of the petition, were held momentarily by Corazon
Teng, on the request of Magno as they were not covered with sufficient funds. These checks were a) Piso Bank Check Nos. 006858, dated August 15, 1983,
006859 dated August 28, 1983 and 006860 dated September 15, 1983, all in the amount of P5,038.43 and No. 006861 dated September 28, 1983, in the
amount of P10,076.87. (Ibid., pp. 42 & 43).
Subsequently, petitioner could not pay LS Finance the monthly rentals, thus it pulled out the garage equipments. It was then on this occasion that
petitioner became aware that Corazon Teng was the one who advanced the warranty deposit. Petitioner with his wife went to see Corazon Teng and
promised to pay the latter but the payment never came and when the four (4) checks were deposited they were returned for the reason "account closed."
(Ibid., p. 43)
After joint trial before the Regional Trial Court of Quezon City, Branch 104, the accused-petitioner was convicted for violations of BP Blg. 22 on the four
(4) cases, as follows:
. . . finding the accused-appellant guilty beyond reasonable doubt of the offense of violations of B.P. Blg. 22 and sentencing the accused to imprisonment
for one year in each Criminal Case Nos. Q-35693, Q-35695 and Q-35696 and to pay to complainant the respective amounts reflected in subject checks.
(Ibid., pp. 25, 27)
Reviewing the above and the affirmation of the above-stated decision of the court a quo, this Court is intrigued about the outcome of the checks subject of
the cases which were intended by the parties, the petitioner on the one hand and the private complainant on the other, to cover the "warranty deposit"
equivalent to the 30% requirement of the financing company. Corazon Teng is one of the officers of Mancor, the supplier of the equipment subject of the
Leasing Agreement subject of the high financing scheme undertaken by the petitioner as lessee of the repair service equipment, which was arranged at
the instance of Mrs. Teng from the very beginning of the transaction.
By the nature of the "warranty deposit" amounting to P29,790.00 corresponding to 30% of the "purchase/lease" value of the equipments subject of the
transaction, it is obvious that the "cash out" made by Mrs. Teng was not used by petitioner who was just paying rentals for the equipment. It would have
been different if petitioner opted to purchase the pieces of equipment on or about the termination of the lease-purchase agreement in which case he had
to pay the additional amount of the warranty deposit which should have formed part of the purchase price. As the transaction did not ripen into a
purchase, but remained a lease with rentals being paid for the loaned equipment, which were pulled out by the Lessor (Mancor) when the petitioner
failed to continue paying possibly due to economic constraints or business failure, then it is lawful and just that the warranty deposit should not be
charged against the petitioner.
To charge the petitioner for the refund of a "warranty deposit" which he did not withdraw as it was not his own account, it having remained with LS
Finance, is to even make him pay an unjust "debt", to say the least, since petitioner did not receive the amount in question. All the while, said amount was
in the safekeeping of the financing company, which is managed, supervised and operated by the corporation officials and employees of LS Finance.
Petitioner did not even know that the checks he issued were turned over by Joey Gomez to Mrs. Teng, whose operation was kept from his knowledge on
her instruction. This fact alone evoke suspicion that the transaction is irregular and immoral per se, hence, she specifically requested Gomez not to
divulge the source of the "warranty deposit".
It is intriguing to realize that Mrs. Teng did not want the petitioner to know that it was she who "accommodated" petitioner's request for Joey Gomez, to
source out the needed funds for the "warranty deposit". Thus it unfolds the kind of transaction that is shrouded with mystery, gimmickry and doubtful
legality. It is in simple language, a scheme whereby Mrs. Teng as the supplier of the equipment in the name of her corporation, Mancor, would be able to
"sell or lease" its goods as in this case, and at the same time, privately financing those who desperately need petty accommodations as this one. This
modus operandi has in so many instances victimized unsuspecting businessmen, who likewise need protection from the law, by availing of the
deceptively called "warranty deposit" not realizing that they also fall prey to leasing equipment under the guise of a lease-purchase agreement when it is
a scheme designed to skim off business clients.
This maneuvering has serious implications especially with respect to the threat of the penal sanction of the law in issue, as in this case. And, with a willing
court system to apply the full harshness of the special law in question, using the "mala prohibitia" doctrine, the noble objective of the law is tainted with
materialism and opportunism in the highest, degree.
This angle is bolstered by the fact that since the petitioner or lessee referred to above in the lease agreement knew that the amount of P29,790.00 subject
of the cases, were mere accommodation-arrangements with somebody thru Joey Gomez, petitioner did not even attempt to secure the refund of said
amount from LS Finance, notwithstanding the agreement provision to the contrary. To argue that after the termination of the lease agreement, the
warranty deposit should be refundable in full to Mrs. Teng by petitioner when he did not cash out the "warranty deposit" for his official or personal use, is
to stretch the nicety of the alleged law (B.P. No, 22) violated.
For all intents and purposes, the law was devised to safeguard the interest of the banking system and the legitimate public checking account user. It did
not intend to shelter or favor nor encourage users of the system to enrich themselves through manipulations and circumvention of the noble purpose and
objective of the law. Least should it be used also as a means of jeopardizing honest-to-goodness transactions with some color of "get-rich" scheme to the
prejudice of well-meaning businessmen who are the pillars of society.
Under the utilitarian theory, the "protective theory" in criminal law, "affirms that the primary function of punishment is the protective (sic) of society
against actual and potential wrongdoers." It is not clear whether petitioner could be considered as having actually committed the wrong sought to be
punished in the offense charged, but on the other hand, it can be safely said that the actuations of Mrs. Carolina Teng amount to that of potential
wrongdoers whose operations should also be clipped at some point in time in order that the unwary public will not be failing prey to such a vicious
transaction (Aquino, The Revised Penal Code, 1987 Edition, Vol. I, P. 11)
Corollary to the above view, is the application of the theory that "criminal law is founded upon that moral disapprobation . . . of actions which are
immoral, i.e., which are detrimental (or dangerous) to those conditions upon which depend the existence and progress of human society. This
disappropriation is inevitable to the extent that morality is generally founded and built upon a certain concurrence in the moral opinions of all. . . . That
which we call punishment is only an external means of emphasizing moral disapprobation the method of punishment is in reality the amount of
punishment," (Ibid., P. 11, citing People v. Roldan Zaballero, CA 54 O.G. 6904, Note also Justice Pablo's view in People v. Piosca and Peremne, 86 Phil. 31).
Thus, it behooves upon a court of law that in applying the punishment imposed upon the accused, the objective of retribution of a wronged society,
should be directed against the "actual and potential wrongdoers." In the instant case, there is no doubt that petitioner's four (4) checks were used to
collateralize an accommodation, and not to cover the receipt of an actual "account or credit for value" as this was absent, and therefore petitioner should
not be punished for mere issuance of the checks in question. Following the aforecited theory, in petitioner's stead the "potential wrongdoer", whose
operation could be a menace to society, should not be glorified by convicting the petitioner.
While in case of doubt, the case should have been resolved in favor of the accused, however, by the open admission of the appellate court below, oven
when the ultimate beneficiary of the "warranty deposit" is of doubtful certainty, the accused was convicted, as shown below:
Nor do We see any merit in appellant's claim that the obligation of the accused to complainant had been extinguished by the termination of the leasing
agreement — by the terms of which the warranty deposit advanced by complainant was refundable to the accused as lessee — and that as the lessor L.S.
Finance neither made any liquidation of said amount nor returned the same to the accused, it may he assumed that the amount was already returned to
the complainant. For these allegations, even if true, do not change the fact, admitted by appellant and established by the evidence, that the four checks
were originally issued on account or for value. And as We have already observed, in order that there may be a conviction under the from paragraph of
Section 2 of B.P. Blg 22 — with respect to the element of said offense that the check should have been made and issued on account or for value — it is
sufficient, all the other elements of the offense being present, that the check must have been drawn and issued in payment of an obligation.
Moreover, even granting, arguendo, that the extinguishment, after the issuance of the checks, of the obligation in consideration of which the checks were
issued, would have resulted in placing the case at bar beyond the purview of the prohibition in Section 1 of BP Blg. 22, there is no satisfactory proof that
there was such an extinguishment in the present case. Appellee aptly points out that appellant had not adduced any direct evidence to prove that the
amount advanced by the complainant to cover the warranty deposit must already have been returned to her. (Rollo, p. 30)
It is indubitable that the respondent Court of Appeals even disregarded the cardinal rule that the accused is presumed innocent until proven guilty
beyond reasonable doubt. On the contrary, the same court even expected the petitioner-appellant to adduce evidence to show that he was not guilty of
the crime charged. But how can be produce documents showing that the warranty deposit has already been taken back by Mrs. Teng when she is an
officer of Mancor which has interest in the transaction, besides being personally interested in the profit of her side-line. Thus, even if she may have gotten
back the value of the accommodation, she would still pursue collecting from the petitioner since she had in her possession the checks that "bounced".
That the court a quo merely relied on the law, without looking into the real nature of the warranty deposit is evident from the following pronouncement:
And the trail court concluded that there is no question that the accused violated BP Blg. 22, which is a special statutory law, violations of which are mala
prohibita. The court relied on the rule that in cases of mala prohibita, the only inquiry is whether or not the law had been violated, proof of criminal
intent not being necessary for the conviction of the accused, the acts being prohibited for reasons of public policy and the defenses of good faith and
absence of criminal intent being unavailing in prosecutions for said offenses." (Ibid., p. 26)
The crux of the matter rests upon the reason for the drawing of the postdated checks by the petitioner, i.e., whether they were drawn or issued "to apply
on account or for value", as required under Section 1 of B.P. Blg, 22. When viewed against the following definitions of the catch-terms "warranty" and
"deposit", for which the postdated checks were issued or drawn, all the more, the alleged crime could not have been committed by petitioner:
a) Warranty — A promise that a proposition of fact is true. A promise that certain facts are truly as they are represented to be and that they will
remain so: . . . (Black's Law Dictionary, Fifth Edition, (1979) p. 1423)
A cross-reference to the following term shows:
Fitness for Particular Purpose: —
Where the seller at the time of contracting has reason to know any particular purpose for which the goods are required and that the buyer is relying on
the seller's skill or judgment to select or furnish suitable goods, there is, unless excluded or modified, an implied warranty that the goods shall be fit for
such purpose, (Ibid., p. 573)
b) Deposit: — Money lodged with a person as an earnest or security for the performance of some contract, to be forfeited if the depositor fails in his
undertaking. It may be deemed to be part payment and to that extent may constitute the purchaser the actual owner of the estate.
To commit to custody, or to lay down; to place; to put. To lodge for safe- keeping or as a pledge to intrust to the care of another.
The act of placing money in the custody of a bank or banker, for safety or convenience, to be withdrawn at the will of the depositor or under rules and
regulations agreed on. Also, the money so deposited, or the credit which the depositor receives for it. Deposit, according to its commonly accepted and
generally understood among bankers and by the public, includes not only deposits payable on demand and for which certificates, whether interest-
bearing or not, may be issued, payable on demand, or on certain notice or at a fixed future time. (Ibid., pp. 394-395)
Furthermore, the element of "knowing at the time of issue that he does not have sufficient funds in or credit with the drawee bank for the payment of
such check in full upon its presentment, which check is subsequently dishonored by the drawee bank for insufficiency of funds or credit or would have
been dishonored for the same reason . . . is inversely applied in this case. From the very beginning, petitioner never hid the fact that he did not have the
funds with which to put up the warranty deposit and as a matter of fact, he openly intimated this to the vital conduit of the transaction, Joey Gomez, to
whom petitioner was introduced by Mrs. Teng. It would have been different if this predicament was not communicated to all the parties he dealt with
regarding the lease agreement the financing of which was covered by L.S. Finance Management.

WHEREFORE, the appealed decision is REVERSED and the accused-petitioner is hereby ACQUITTED of the crime charged.

SO ORDERED.
G.R. No. 120473 June 23, 1999

ULTRA VILLA FOOD HAUS, and/or ROSIE TIO, petitioners, vs. RENATO GENISTON, NATIONAL LABOR RELATIONS COMMISSION PRESIDING
COMMISSIONER (4TH DIVISION), respondents.

KAPUNAN, J.:

This special civil action for certiorari stems from a complaint for illegal dismissal filed by Renato Geniston, private respondent herein, against the Ultra
Villa Food Haus restaurant 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. His employment therein spanned from March 1, 1989 until he was dismissed on May 13, 1992. For his
services, private respondent was paid P60.00 in 1989, P70.00 in 1990, P80.00 in 1991 and P90.00 when he was dismissed in 1992.

During the elections of May 11, 1992, private respondent acted as a Poll Watcher for the National Union of Christian Democrats. 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.

Upon arriving home on May 12, private respondent discovered that Tio had phoned his mother that morning. Tio allegedly gave his mother "an
inscrutable verbal lashing," and informed the latter that private respondent was dismissed from work. On May 13, 1992, private respondent went to Tio's
residence to plead his case only to be subjected to a "brow beating" by Tio who even attempted to force him to sign a resignation letter.

Private respondent prayed that the Labor Arbiter order petitioner Tio to pay him overtime pay, premium pay, holiday pay, service incentive leave pay,
salary differential and 13th month pay. He likewise prayed for reinstatement plus backwages or, in the alternative, separation pay, as well as moral
damages, exemplary damages and attorney's fees.

Petitioner Rosie Tio, on the other hand, maintained that private respondent was her personal driver, not an employee of the Ultra Villa Food Haus. As
petitioner's personal driver, private respondent was required to report for work at 7:00 a.m. to drive petitioner to Mandaue City where petitioner
worked as the Manager of the CFC Corporation. Accordingly, private respondent was paid P65.00 a day which was gradually increased to P70.00 then to
P90.00. Private respondent was likewise given free meals as well as 13th month pay at the end of the year. Petitioner denied dismissing private
respondent whom she claimed abandoned his job.

Though well aware that May 12, 1992 was a holiday, petitioner called up private respondent that day to ask him to report for work as she had some
important matters to attend to. Private respondent's wife, however, coldly told petitioner that private respondent was helping in the counting of ballots.
Petitioner was thus forced to hire another driver to replace private respondent. Private respondent came back a week after but only to collect his salary.

The Labor Arbiter found that private respondent was indeed petitioner's personal driver. Private respondent's claim that he was an employee of the Ultra
Villa Food Haus was deemed by the Labor Arbiter to be a mere afterthought, considering that:

. . . . In his verified complaint, complainant states that the nature of his work position was a driver. If it [were] true that he was made to perform these
functions as a waiter, it would be incongruous with the position of a driver. The nature of the position of a waiter is one that requires him to be at the
place of work at all times while that of a driver, complainant had to be away from the restaurant at all times. At any rate, an admission is made that he
was only a personal driver of the individual respondent.1

The "admission" referred to above is contained in the mandatory conference order issued by the Labor Arbiter on January 10, 1994, to wit:

Also on this date, the following matters were threshed out:

That complainant started his employment with the individual respondent as the latter's personal driver on March 1, 1989 and the last day of his service
was on May 13, 1992;2

The Labor Arbiter concluded that private respondent, being a personal driver, was not entitled to overtime pay, premium pay, service incentive leave pay
and 13th month pay. Private respondent's claim for salary differential was likewise denied since he "received a daily salary of P90.00 which is more than
that set by law."3

Neither was private respondent awarded separation pay. While the hiring of a substitute driver amounted to a constructive dismissal, the Labor Arbiter
ruled that the same was justified in view of petitioner's "dire need" for the services of a driver.

The Labor Arbiter, however, noted that petitioner failed to comply with procedural due process in dismissing private respondent and thus ordered the
former to indemnify the latter the amount of P1,000.00. The dispositive portion of the Labor Arbiter's decision states:

WHEREFORE in the light of the foregoing premises, judgment is rendered finding complainant's dismissal for a valid cause. Complaint is hereby ordered
dismissed. However, respondent is directed to indemnify complainant the amount of P1,000.00 for failure to observe the due process requirement before
dismissing the complainant.

SO ORDERED.4

Both parties appealed the decision of the Labor Arbiter to the National Labor Relations Commission (NLRC).

Petitioner questioned the Labor Arbiter's decision insofar as it required her to pay private respondent the amount of P1.000.00. Petitioner maintained
that private respondent abandoned his job, and was not constructively dismissed as found by the Labor Arbiter. Petitioner concluded that she could not
be held liable for failing to observe procedural due process in dismissing private respondent, there being no dismissal to speak of.

On the other hand, private respondent denied admitting that he was employed as petitioner's personal driver. He alleged that what was admitted during
the mandatory conference was that he was made to drive for the manager and his wife (petitioner) on top of his other duties which were necessary and
desirable to petitioner's business. Private respondent likewise maintained his claim that he was unjustly dismissed, contending that his absence on May
11 and 12, 1992 did not warrant dismissal since those days were official holidays.
The NLRC found private respondent's arguments meritorious, and ordered petitioner to reinstate private respondent and to pay him the sum of
P45,311.55 in backwages, overtime pay, premium pay for holiday and rest days, 13th month pay, and service incentive pay. Thus:

WHEREFORE, the respondents are hereby ordered to reinstate the complainant with backwages fixed for 6 months as he delayed in filing this case.

The respondents are likewise ordered to pay the complainant his overtime pay, holiday pay, premium pay for holiday and rest day, 13th month pay, and
service incentive leave covering the period from October 28, 1990 to May 10, 1992.

Complainant's backwages up to the time of this Decision and his other monetary claims as computed by Nazarina C. Cabahug, Fiscal Examiner II of the
Commission are the following:

xxx xxx xxx

SUMMARY

1) Backwages P 14,130.00

2) Overtime Pay P 22,060.00

3) Holiday Pay; Premium pay for Holiday P 1,554.00

4) Premium Pay for Rest Day P 1,683.00

5) 13th Month Pay P 5,484.55

6) Service Incentive Leave P 400.00

——————

TOTAL P 45,311.55

SO ORDERED.5

Acting on the parties' respective motions for reconsideration, the NLRC 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. The NLRC also denied petitioner's
motion, reiterating its earlier ruling that private respondent was an employee of the Ultra Villa Food Haus.

Two issues are thus presented before this Court:

(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.

The Solicitor General, in his "Manifestation and Motion In Lieu of Comment," agrees with petitioner's submission that private respondent was her
personal driver.6

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.7

(2) Copies of the Ultra Villa Food Haus payroll which do not contain private respondent's name.8

(3) Affidavits of Ultra Villa Food Haus employees attesting that private respondent was never an employee of said establishment.9

(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 respondent' position as driver would be "incongruous" with his function as a waiter of Ultra
Villa Food Haus. 10

(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.11

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, the terms and conditions of private respondent's employment are governed by Chapter III, Title III, Book III of the Labor Code 12 as well as
by the pertinent provisions of the Civil Code.13 Thus, Article 141 of the Labor Code provides:
Art. 141. Coverage. — This Chapter shall apply to all persons rendering services in households for compensation.

Domestic or household service" shall mean services in the employers home which is usually necessary or desirable for the maintenance and enjoyment
thereof and includes ministering to the personal comfort and convenience of the members of the employers household, including services of family
drivers. (Emphasis supplied.)

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,14 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. (Emphasis supplied.)

The limitations set out in the above article are echoed in Book III of the Omnibus Rules Implementing the Labor Code.15

Clearly then, petitioner is not obliged by law to grant private respondent any of these benefits.

Employing the same line of analysis, it would seem that private respondent is not entitled to 13th month pay. The Revised Guidelines on the
Implementation of the 13th Month Pay Law also excludes employers of household helpers from the coverage of Presidential Decree No. 851, thus:

2. Exempted Employers

The following employers are still not covered by P.D. No. 851:

a. . . .;

b. Employers of household helpers . . .;

c. . . .,

d. ....

Nevertheless, we deem it just to award private respondent 13th month pay in view of petitioner's practice of according private respondent such benefit.
Indeed, petitioner admitted that she gave private respondent 13th month pay every December.16
II

We come now to the issue of private respondent's dismissal. Petitioner submits that private respondent abandoned his job, referring to work as an
election watcher instead.

We do not agree. 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 over acts, with the second requisites as the more
determinative factor.17 The burden of proving abandonment as a just cause for dismissal is on the employer.18 Petitioner failed to discharge this burden.
The only evidence adduced by petitioner to prove abandonment is her affidavit, the pertinent portion of which states:

On May 12, 1992, a day after the election, complainant was again absent. Since it was a holiday and I have no work on that day, I just did not bother to call
up complainant. Although the following day was still a holiday, I called up complainant to inform him that he has to report for work as I will report to the
office to do some important things there. Unfortunately, complainant's wife instead coldly told me that complainant was fetched by the latter's uncle to
help in the counting of ballots. I then told his wife to let complainant choose between his job with me or that of election watcher. The following day, I was
informed again by complainant's wife that he is no longer interested to work with me as he is earning more as election watcher. I was really disenchanted
to know his respon[se] as all of a sudden, I have no driver to drive me to my place of work. Nevertheless, I have no other choice to accept it as I can not
also forced him to continue working with me. Hence, I was really inconvenience for about a week due to the absence of a driver.1âwphi1.nêt

Complainant then collected his salary after one week's absence.19

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:20

Art. 149. Indemnity for unjust termination of services. — If the period of household service is fixed, neither the employer nor the househelper may
terminate the contract before the expiration of the term, except for a just cause. If the househelper is unjustly dismissed, he or she shall be paid the
compensation already earned plus that for fifteen (15) days by way of indemnity.

If the househelper leaves without justifiable reason he or she shall forfeit any unpaid salary due him or her not exceeding fifteen (15) days. (Emphasis
supplied.)

Petitioner likewise concedes that she failed to comply with due process in dismissing private respondent since private respondent had already
abandoned his job.21 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 fail. Accordingly, private respondent is ordered to pay private respondent the sum of P1,000.00.22
WHEREFORE, the decision of the National Labor Relations Commission is hereby REVERSED and a new one entered declaring:

(1) Private respondent Renato Geniston, the personal driver of petitioner Rosie Tio, and not an employee of the Ultra Villa Food Haus;

(2) The dismissal of private respondent to be without a valid cause and without due process. Accordingly, petitioner Rosie Tio is ordered to pay
private respondent;

(a) Thirteenth Month Pay to be computed in accordance with the Rules and Regulations, and the Revised Guidelines, Implementing Presidential
Decree No. 851;

(b) Indemnity equal to 15 days of his salary as personal driver at the time of his unjust dismissal; and

(c) Indemnity in the sum of P1,000.00.

SO ORDERED.