Mercidar Fishing Corp.
v NLRC
G.R. No. 112574 (1998)
Mendoza, J.
SUBJECT MATTER: Exemptions of Field Personnel from Working Conditions and Rest Periods (Art. 82)
SUMMARY: Agao, a ship’s quartermaster of Mercidar Corp, was sick and was allowed to go on leave
without pay but was refused to be admitted back to work. Agao filed an action for illegal dismissal and non-
payment of service incentive leave. LA, NLRC, and SC ruled that Agao should be reinstated with
backwages, 13mo. pay, and incentive leave pay. Agao is an employee covered by the Working Conditions
and Reset Periods (Art. 82). See doctrine.
DOCTRINES:
The exemption of field personnel from the provisions on Working Conditions and Rest Periods as stated in
Art. 82 of LC does not include the fishermen in this case. The requirement that “actual hours of work in the
field cannot be determined with reasonable certainty” in Art. 82 must be read in conjunction with Section 1
of Rule IV, Book III of the Implementing Rules which provides that “This rule shall apply to all employees
except: xxx (e)Field personnel and other employees whose time and performance is unsupervised by the
employer xxx”. In the case, during the entire course of their fishing voyage, fishermen employed by
Mercidar Corp. have no choice but to remain on board its vessel. Although they perform non-agricultural
work away from Mercidar Corp’s business offices, the fact remains that throughout the duration of their
work they are under the effective control and supervision of Mercidar Corp through the vessel’s patron or
master.
PARTIES:
Petitioner Mercidar Fishing Corporation, represented by its President Doming B. Naval
Respondent NLRC and Fermin Agao, Jr
FACTS:
1. Agao was employed as a bodegero or ship’s quartermaster by Mercidar Corp.
2. He had been sick and was allowed to go on leave without pay for one (1) month but was refused to be
admitted back to work.
3. When Agao asked for a certificate of employment, they refused to give it unless he submitted his
resignation. However, Agao also refused to file a resignation letter unless he will be given a separation
pay.
4. Agao filed an action against Mercidar for illegal dismissal, violation of PD No. 851, and non-payment of
five days service incentive leave. Agao complained that he had been constructively dismissed by
Mercidar Corp. when the latter refused him assignments aboard its boats after he had reported to work.
5. Mercidar alleges that Agao abandoned his work when he did not return for three months after the expiry
of his leave and the Agao did not get his certificate of employment.
6. LA: ordered reinstatement with backwages and payment of 13th month pay and incentive leave pay
for 1990.
7. NLRC: denied appeal and MR.
8. Mercidar’s claim: It cannot be held liable for service incentive leave pay by fishermen in its employ as
the latter supposedly are “field personnel” and thus not entitled to such pay under the Labor Code.
ISSUES:
WON Agao is field personnel and therefore not entitled to service incentive leave pay. – NO.
RATIO:
No – Agao is not a field personnel, hence, entitled too service incentive leave pay.
Actual hours of work could be determined with reasonable certainty, making Art. 82 on field personnel
inapplicable.
Art. 82 of LC. Coverage.—The provisions of this Title [Working Conditions and Rest Periods] shall apply
to employees in all establishments and undertakings whether for profit or not, but not to government
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.
“Field personnel” shall refer to non-agricultural employees who regularly perform their duties away from
the principal place of business or branch of office of the employer and whose actual hours of work in
the field cannot be determined with reasonable certainty.
o The requirement that “actual hours of work in the field cannot be determined with reasonable
certainty” must be read in conjunction with Sec. 1 of Rule IV, Book III of the Implementing Rules
which provides that, “Field personnel and other employees whose time and performance is
unsupervised by the employer xxx.”
The clause “whose time and performance is unsupervised by the employer” did not amplify but merely
interpreted and expounded the clause “whose actual hour of work in the field cannot be determined
with reasonable certainty”. The former clause is still within the scope and purview of Art. 82 which
defines field personnel.
In the case at bar, during the entire course of their fishing voyage, fishermen employed by Mercidar
have no choice but to remain on board its vessel. Although they perform non-agricultural work away
from Mercidar Corp’s business offices, the fact remains that throughout the duration of their work they
are under the effective control and supervision of Mercidar through the vessel’s patron or master
DISPOSITIVE: Petition dismissed.
OTHER NOTES:
On constructive dismissal: The Court found that there was constructive dismissal, as Agao was prevented
from working in spite of submission of a medical certificate.
On abandonment: it is settled in this jurisdiction that “to constitute abandonment of position, there must be
concurrence of the intention to abandon and some overt acts from which it may be inferred that the
employee concerned has no more interest in working” and that the filing of the complaint which asked for
reinstatement plus backwages is inconsistent with Mercidar’s defense of abandonment.
As regards the labor arbiter’s award which was affirmed by NLRC, there is no reason to apply the rule that
reinstatement may not be ordered if, as a result of the case between the parties, their relation is strained.
Even at this late stage of this dispute, Mercidar Corp. continues to reiterate its offer to reinstate Agao.
