Viviero vs. CA

CASE TITLE: Viviero v.
CA
DATE: October 24, 2000
G.R. NO.: G.R. 138938
PONENTE: Bellosillo, J.
TOPIC: Termination Disputes
DOCTRINE:
It is clear from the claim/assistance request form submitted by petitioner to
AMOSUP that he was challenging the legality of his dismissal for lack of cause
and lack of due process. The issue of whether there was proper interpretation and
implementation of the CBA provisions comes into play only because the grievance
procedure provided for in the CBA was not observed after he sought his Union’s
assistance in contesting his termination. Thus, the question to be resolved
necessarily springs from the primary issue of whether there was a valid termination;
without this, then there would be no reason to invoke the need to interpret and
implement the CBA provisions properly.
FACTS:
Celestino Viviero is a licensed seaman and a member of the Associated Marine
Officers and Seamen’s Union of the Philippines (AMOSUP), which entered into a
Collective Bargaining Agreement with the private respondents, Hammonia Marine
Services and Hanseatic Shipping Co., Ltd. The agreement included a grievance
procedure.
On grounds of very poor performance and conduct, refusal to perform his job,
refusal to report to the captain or the vessel’s engineers, or cooperate with
other ship officers about the problem in cleaning the cargo holds or of the
shipping pump AND his dismal relations with the captain of the vessel,
complainant Viviero was repatriated on July 15, 1994.
As a result, the complainant filed a complaint for illegal dismissal at AMOSUP,

where complainant was a member. Pursuant to Article XII of the Collective
Bargaining Agreement, grievance proceedings were conducted but the parties failed
to reach and settle the dispute amicably. On November 28, 1994, complainant
then filed a complaint with the POEA.
While the case was pending with the POEA, private respondents, employers of
complainant, filed a motion to dismiss, arguing that POEA had no jurisdiction over
the case considering the failure of Viviero to refer it to a Voluntary Arbitration
Committee in accordance with the CBA.
RULING OF LOWER COURTS
Labor Arbiter – dismissed the complaint of for want of jurisdiction, on the basis of
the pleadings and documents available on record. The LA noted that since the CBA
provided a referral of the dispute to a Voluntary Arbitration Committee should the
Grievance Committee fail to settle the dispute, and pursuant to Art. 261 (now Art.
274, after the re-numbering of the Labor Code) with regards to the original and
exclusive jurisdiction of Voluntary Arbitrators, the Labor Arbiter had no jurisdiction
over the case. The complainant raised his appeal to the NLRC.
NLRC, on complainant’s appeal – remanded the case to the Labor Arbiter. At this
point, the private respondents filed a motion for reconsideration, which was
promptly denied by the NLRC. Private respondents then raised the case to the CA.
CA, on private respondent’s appeal – ruled in favor of the private respondents,

stating that the CBA “is the law between the parties and compliance therewith is
mandated by the express policy of the law.” It ruled that petitioner/complainant
should have followed the CBA, requiring the submission of the dispute to a Voluntary
Arbitration Committee once the Grievance Committee failed to settle the
controversy. Parties, according to the CA, did not have the choice to volunteer to
refer the dispute to the Voluntary Arbitrator or Panel of Arbitrators as there are
already provisions in the CBA outlining the steps to take.
The Labor Code itself enumerates the original and exclusive jurisdiction of the
Voluntary Arbitrator or Panel of Voluntary Arbitrators, and prohibits the NLRC and
the Regional Directors of the Department of Labor and Employment (DOLE) from
entertaining cases falling under the same. Thus, the fact that private respondents
filed their Position Paper first before filing their Motion to Dismiss was immaterial
and did not operate to confer jurisdiction upon the Labor Arbiter, following the well-
settled rule that jurisdiction is determined by law and not by consent or agreement
of the parties or by estoppel.
Finally, the appellate court ruled that a case falling under the jurisdiction of the
Labor Arbiter as provided under Art. 217 (now Art. 224) of the Labor Code may be
lodged instead with a Voluntary Arbitrator because the law prefers, or gives primacy,
to voluntary arbitration instead of compulsory arbitration.
CONTENTION OF THE PARTIES
Complainant Celestino Viviero – Alleges that the CA committed a grave abuse of

discretion in holding that a Voluntary Arbitrator or a Panel of Voluntary Arbitrators,
and not the Adjudication Branch of the NLRC, has jurisdiction over the complaint for
illegal dismissal. He claims that his complaint was undeniably a termination
dispute and did not involve an “interpretation or implementation of a CBA” or
“interpretation” or “enforcement” of company personnel policies. It should then fall
within the original and exclusive jurisdiction of the Labor Arbiter, not a
Voluntary Arbitrator. He cites Art. 217 (now Art. 224) as his basis.
Private respondents Hammonia Marine Services and Hanseatic Shipping Co.,

Ltd. – Allege that the case is clearly one “involving the proper interpretation and
implementation of the Grievance Procedure found in the CBA” due to the allegation
in his claim/assistance request form submitted to the union, which stated that there
is no grievance procedure observed. The fact that the complainant sought the help of
his union shows that he was convinced that his complaint was within the
jurisdiction of the grievance machinery, and thus, the CBA provisions should
be strictly followed.
ISSUE/S:
Whether or not the NLRC is deprived of jurisdiction over illegal dismissal cases
whenever a CBA provides for grievance machinery and voluntary arbitration
proceedings.
RULING:
The court ruled in the negative. The case involved is a termination dispute and the
NLRC has jurisdiction over it. It is clear from the claim/assistance request form
submitted by petitioner to AMOSUP that he was challenging the legality of his
dismissal for lack of cause and lack of due process. The issue of whether there
was proper interpretation and implementation of the CBA provisions comes into
play only because the grievance procedure provided for in the CBA was not observed
after he sought his Union’s assistance in contesting his termination. Thus, the
question to be resolved necessarily springs from the primary issue of whether
there was a valid termination; without this, then there would be no reason to
invoke the need to interpret and implement the CBA provisions properly.
In this case, however, while the parties did agree to make termination disputes the
proper subject of voluntary arbitration, such submission remains discretionary
upon the parties. A quick perusal of the provisions of the CBA show that under
Article XVII, Sec. 4:
x x x x Transfer, lay-off or discipline of seamen for incompetence,

inefficiency, neglect of work, bad behavior, perpetration of crime,
drunkenness, insubordination, desertion, violation of x x x regulations
of any port touched by the Company’s vessel/s and other just and
proper causes shall be at Master’s discretion x x x in the high seas or
foreign ports. The Master shall refer the case/dispute upon
reaching port and if not satisfactorily settled, the case/dispute
may be referred to the grievance machinery or procedure
hereinafter provided.
The use of the word “may” in the provision shows that the import of the CBA and the
intention of the parties was to reserve the right to submit the illegal termination
dispute to the jurisdiction of the Labor Arbiter rather than a Voluntary Arbitrator.
Furthermore, the instant case is a termination dispute falling under the original and
exclusive jurisdiction of the Labor Arbiter, and does not specifically involve the
application, implementation or enforcement of company personnel policies.
In this case, petitioner validly exercised his option to submit it to the Labor Arbiter
when he submitted his complaint. The decision of the CA is SET ASIDE and the case
is REMANDED to the Labor Arbiter to dispose of the case until terminated.

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CASE TITLE: Viviero v.

TOPIC: Termination Disputes

As a result, the complainant filed a complaint for illegal dismissal at AMOSUP,

CA, on private respondent’s appeal – ruled in favor of the private respondents,

CONTENTION OF THE PARTIES

Complainant Celestino Viviero – Alleges that the CA committed a grave abuse of

Private respondents Hammonia Marine Services and Hanseatic Shipping Co.,

x x x x Transfer, lay-off or discipline of seamen for incompetence,

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