Cocomangas Hotel Beach Resort v Visca (Austria-Martinez, 2008)

Facts:
Visca et al (respondents) alleged that they were regular employees of Cocomangas Hotel
(petitioner) and tasked with the maintenance and repair of resort facilities. They were informed by the
Front Desk Officer that repair has been suspended because it caused irritation to the resorts guests. As
instructed, Visca et al did not report for work. Later, they found out that the suspension was due to
budgetary constraints and that 4 new workers were hired to do their job.
Complaints for illegal dismissal were filed. The LA found that Visca was an independent
contractor and the other respondents were hired by him. Also, there was no illegal dismissal but only
completion of projects because they were project employees.
NLRC set aside the decision and held that they were regular employees; hence, illegally
dismissed. It took into account 1) quarterly SSS reports, 2) that all were certified and commended by
owner-manager for satisfactory performance, 3) thwy were paid holiday and overtime pay, and 4) they
were employed continuously for 12 years and paid daily wages.
On MR, NLRC reversed itself and held that Visca et al were project employees.
CA reinstated the original NLRC decision and found that Visca et al were regular employees
because the Hotel failed to set specific periods when the employment relationship would be terminated;
and the repeated hiring rendered them necessary and desirable to the business.
Issue:
Whether respondents are regular or project employees? The respondents are regular employees.
Ruling:
Cocomangas changed its theory on appeal
Before the LA, Cocomangas classified Visca as an independent contractor and other as the
latters employees; while in the MR, it treated all respondents as project employees. Further,
Cocomangas advanced the absence of an ER-EE relationship before the LA; but invoked the termination
of the period of ER-EE relationship in their MR.
NLRC should not have considered the new thoery. When a party adopts a particular theory and
the case is tried and decided upon that theory in the court below, he will not be permitted to change his
theory on appeal.
Respondents are not project employees
A project employee is one whose employment has been fixed for a specific project or
undertaking, the completion or termination of which has been determined at the time of the engagement
of the employee or where the work or service to be performed is seasonalin nature and the employment is
for the duration of the season. Before a project employee can be dismissed, a report must be made to the
nearest employment office of the termination of the services of the workers every time he completes a
project.
In this case, Visca et al worked continuously from 3-12 years without any mention of a project to
which they were specifically assigned. There is also no evidence of the project employment contracts
covering the alleged periods of employment nor the termination of such project employment. Lastly,
Cocomangas failed to file termination reports, which is an indication that Visca et al were not project
employees but regular employees.
The respondents were continuously rehired by Cocomangas
An employment ceases to be coterminous with specific projects when the employee is
continuously rehired due to the demands of employers business and re-engaged for many more projects
without interruption.
The repeated and continuing need for respondents services is sufficient evidence of the
necessity, if not indispensability, of their services to Cocomangas resort business.
CA decision affirmed with modification that the award for backwages should be computed from
the time compensation was withheld up to the time of actual reinstatement.