"Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee. "Employee" includes any individual employed by an employer. An employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer.
"Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee. "Employee" includes any individual employed by an employer. An employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer.
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"Employer" includes any person acting directly or indirectly in the interest of an employer in relation to an employee. "Employee" includes any individual employed by an employer. An employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer.
Copyright:
Attribution Non-Commercial (BY-NC)
Available Formats
Download as DOCX, PDF, TXT or read online from Scribd
1. "Employer" includes any person acting directly or indirectly in the interest
of an employer in relation to an employee and shall include the government and all its branches, subdivisions and instrumentalities, all government-owned or controlled corporations and institutions, as well as non-profit private institutions, or organizations.
2. "Employee" includes any individual employed by an employer.
3. FOUR FOLD TEST
1. RIGHT TO HIRE 2. PAYMENT OF WAGES 3. POWER OF DISMISSAL 4. CONTROL OVER THE CONDUCT OF WORK CASES: NOTEBOOK. CLASSIFICATION OF EMPLOYEES A. REGULAR VS. CASUAL EMPLOYEES Article 280. Regular and casual employment. The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the 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 seasonal in nature and the employment is for the duration of the season. An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. Article 281. Probationary employment. Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee. SEASONAL PHILIPPINE TOBACCO FLUE-CURING & REDYING CORPORATION VS NLRC - DECEMBER 10, 1998 - Art. 283. Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee due to the installation of labor saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year. . . . Firstly, the losses expected should be substantial and not merely de minimis in extent. If the loss purportedly sought to be forestalled by retrenchment is clearly shown to be insubstantial and inconsequential in character, the bonafide nature of the retrenchment would appear to be seriously in question. Secondly, the substantial loss apprehended must be reasonably imminent, as such imminence can be perceived objectively and in good faith by the employer. There should, in other words, be a certain degree of urgency for the retrenchment, which is after all a drastic recourse with serious consequences for the livelihood of the employees retired or otherwise laid off. Because of the consequential nature of retrenchment, it must, thirdly, be reasonably necessary and likely to effectively prevent the expected losses. The employer should have taken other measures prior or parallel to retrenchment to forestall losses, i.e., cut other costs other than labor costs. An employer who, for instance, lays off substantial numbers of workers while continuing to dispense fat executive bonuses and perquisites or so-called "golden parachutes," can scarcely claim to be retrenching in good faith to avoid losses. To impart operational meaning to the constitutional policy of providing "full protection" to labor, the employers prerogative to bring down labor costs by retrenching must be exercised essentially as a measure of last resort, after less drastic means e.g., reduction of both management and rank-and-file bonuses and salaries, going on reduced time, improving manufacturing efficiencies, trimming of marketing and advertising costs, etc. have been tried and found wanting. - Lastly, but certainly not the least important, alleged losses if already realized, and the expected imminent losses sought to be forestalled, must be proved by sufficient and convincing evidence. The reason for requiring this quantum of proof is readily apparent: any less exacting standard of proof would render too easy the abuse of this ground for termination of services of employees. . . . - Tested against the aforecited standards, we hold that herein petitioner was not able to prove serious financial losses arising from its tobacco operations. A close examination of its Statement of Income and Expenses and its recasted version thereof, which were presented in support of its contention, suggests its failure to show business losses. - On the contrary, the Statement of Income and Expenses shows that the selling and administrative expenses pertain not only to the tobacco business of petitioner, but also to its corn and rental operations, and that the interest expenses pertain to all of its business operations. In fact, the aforementioned Statement shows that there was a net gain from operations in each year covered by the report. In other words, the recasted financial statement effectively modified the Statement of Income and Expenses by deducting form the tobacco operationsalone the operating costs pertaining to all business of petitioner. - - Petitioner contention that the tobacco season was about to end anyway is without merit, because the law clearly provides, without any qualification, that the employees must be given one-month notice prior to closure. At the very least, respondent members of the Luris group were deprived of work for the remaining days of the 1994 tobacco season. Petitioner could have easily complied with the aforesaid requirement by sending the notices earlier. In fact, according to petitioner, the decision to cease its tobacco operations was made as early as March 5, 1994; hence, petitioner had plenty of time within which to send the notices. - Second Issue: - Lubat Group Illegally Dismissed - Petitioner relies upon our ruling in Mercado v. NLRC 11 that the "employment [of seasonal employees] legally ends upon completion of the . . . season," a statement which was subsequently reiterated in Magcalas v.NLRC. 12 Thus, petitioner argues that it was not obliged to rehire the members of the Lubat group for the 1994 season, because their employment had been terminated at the end of the 1993 season. Since they were not employed for the 1994 season when the Balintawak plant was closed, it follows that petitioner has no obligation to award them separation pay due to the said closure. - We are not persuaded. From the facts, we are convinced that petitioner illegally dismissed the members of the Lubat group when it refused to allow them to work during the 1994 season. - This Court has previously ruled in Manila Hotel Company v. CIR 13 that seasonal workers who are called to work from time to time and are temporarily laid of during off-season are not separated from service in said period, but are merely considered on leave until reemployed, viz.: - The nature of their relationship . . . is such that during off season they are temporarily laid off but during summer season they are re-employed, or when their services may be needed. They are not strictly speaking separated from the service but are merely considered as on leave of absence without pay until they are re- employed. - From the foregoing, it follows that the employer-employee relationship between herein petitioner and members of the Lubat group was not terminated at the end of the 1993 season. From the end of the 1993 season until the beginning of the 1994 season, they were considered only on leave but nevertheless still in the employ of petitioner. - The facts in the above-mentioned cases are different from those in Mercado v. NLRC 19 and in Magcalas v. NLRC. 20 In Mercado, although respondent constantly availed herself of petitioners' services from year to year, it was clear from the facts therein that they were not in her regular employ. Petitioners therein performed different phases of agricultural work in a given year. However, during that period that period, they were free to work for other farm owners, and in fact they did. In other words, they worked for respondent, but were nevertheless free to contract their services with other farm owners. The Court was thus emphatic when it ruled that petitioners were mere project employees, who could be hired by other farm owners. As such, their employment would naturally end upon the completion of each project or each phase of farm work which has been contracted PHILIPPINE FRUIT & VEGETABLE INDUSTRIES INC. VS NLRC JULY 20, 1999 The above arguments boil down to the issue of whether or not complaining members of respondent union are regular employees of PFVII or are seasonal workers whose employment ceased during the off-season due to the non-availability of work. Regular and Casual Employment.- The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employers, except where the employment has been fixed for a specific project. xxx An employment shall be deemed to be casual if it is not covered by the preceeding paragraph; provided, that, any employee who has rendered at least one year of service whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such actually exists. Under the above provision, an employment shall be deemed regular where the employee: a) has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer; or b) has rendered at least one year of service, whether such service is continuous or broken, with respect to the activity in which he is employed. [12]
In the case at bar, the work of complainants as seeders, operators, sorters, slicers, janitors, drivers, truck helpers, mechanics and office personnel is without doubt necessary in the usual business of a food processing company like petitioner PFVII. It should be noted that complainants' employment has not been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of their appointment or hiring. [13] Neither is their employment seasonal in nature. While it may be true that some phases of petitioner company's processing operations is dependent on the supply of fruits for a particular season, the other equally important aspects of its business, such as manufacturing and marketing are not seasonal. The fact is that large-scale food processing companies such as petitioner company continue to operate and do business throughout the year even if the availability of fruits and vegetables is seasonal. Having determined that private respondents are regular employees under the first paragraph, we need not dwell on the question of whether or not they had rendered one year of service. This Court has clearly stated in Mercado, Sr. vs. NLRC, [14] that: The second paragraph of Article 280 demarcates as casual employees, all other employees who do not fall under the definition of the preceding paragraph. The proviso, in said second paragraph, deems as regular employees those casual employees who have rendered at least one year of service regardless of the fact that such service may be continuous or broken. xxx Hence, the proviso is applicable only to the employees who are deemed casuals but not to the project employees nor the regular employees treated in paragraph one of Art. 280. PROJECT WILFREDO ARO VS NLRC MARCH 7, 2012 According to the CA, petitioners are project employees as found by Labor Arbiter Ernesto Carreon in his Decision dated May 28, 1998, because they were hired for the construction of the Cordova Reef Village Resort in Cordova, Cebu, which was later on affirmed by the NLRC in its January 12, 1999 decision. The only discrepancy is the Order of the NLRC that petitioners are entitled to backwages up to the finality of its decision, when as project employees, private respondents are only entitled to payment of backwages until the date of the completion of the project. In a later resolution on private respondent's motion for reconsideration of its January 12, 1999 decision, the NLRC changed its findings by ruling that petitioners herein were regular employees and, therefore, entitled to full backwages, until finality of the decision, citing that petitioners repeated rehiring over a long span of time made them regular employees.
In Hanjin Heavy Industries and Construction Co. Ltd. v. Ibaez, [10] this Court extensively discussed the above distinction, thus:
x x x [T]he principal test for determining whether particular employees are properly characterized as "project employees" as distinguished from "regular employees" is whether or not the project employees were assigned to carry out a "specific project or undertaking," the duration and scope of which were specified at the time the employees were engaged for that project. [11]
In a number of cases, [12] the Court has held that the length of service or the re-hiring of construction workers on a project-to-project basis does not confer upon them regular employment status, since their re-hiring is only a natural consequence of the fact that experienced construction workers are preferred.
Applying the above disquisition, this Court agrees with the findings of the CA that petitioners were project employees. It is not disputed that petitioners were hired for the construction of the Cordova Reef Village Resort in Cordova, Cebu. By the nature of the contract alone, it is clear that petitioners' employment was to carry out a specific project. Hence, the CA did not commit grave abuse of discretion when it affirmed the findings of the Labor Arbiter.
Therefore, being project employees, petitioners are only entitled to full backwages, computed from the date of the termination of their employment until the actual completion of the work. Illegally dismissed workers are entitled to the payment of their salaries corresponding to the unexpired portion of their employment where the employment is for a definite period. [18] In this case, as found by the CA, the Cordova Reef Village Resort project had been completed in October 1996 and private respondent herein had signified its willingness, by way of concession to petitioners, to set the date of completion of the project as March 18, 1997; hence, the latter date should be considered as the date of completion of the project for purposes of computing the full backwages of petitioners. DM CONSUNJI VS ESTELITO JAMIN APRIL 18, 2012 As earlier mentioned, Jamin worked for DMCI for almost 31 years, initially as a laborer and, for the most part, as a carpenter. Through all those years, DMCI treated him as a project employee, so that he never obtained tenure. On the surface and at first glance, DMCI appears to be correct. Jamin entered into a contract of employment (actually an appointment paper to which he signified his conformity) with DMCI either as a field worker, a temporary worker, a casual employee, or a project employee everytime DMCI needed his services and a termination of employment paper was served on him upon completion of every project or phase of the project where he worked. [35] DMCI would then submit termination of employment reports to the DOLE, containing the names of a number of employees including Jamin. [36] The NLRC and the CA would later on say, however, that DMCI failed to submit termination reports to the DOLE.
The CA pierced the cover of Jamins project employment contract and declared him a regular employee who had been dismissed without cause and without notice. To reiterate, the CAs findings were based on: (1) Jamins repeated and successive engagements in DMCIs construction projects, and (2) Jamins performance of activities necessary or desirable in DMCIs usual trade or business.
We agree with the CA. In Liganza v. RBL Shipyard Corporation, [37] the Court held that [a]ssuming, without granting[,] that [the] petitioner was initially hired for specific projects or undertakings, the repeated re-hiring and continuing need for his services for over eight (8) years have undeniably made him a regular employee. We find the Liganza ruling squarely applicable to this case, considering that for almost 31 years, DMCI had repeatedly, continuously and successively engaged Jamins services since he was hired on December 17, 1968 or for a total of 38 times 35 as shown by the schedule of projects submitted by DMCI to the labor arbiter [38] and three more projects or engagements added by Jamin, which he claimed DMCI intentionally did not include in its schedule so as to make it appear that there were wide gaps in his engagements. One of the three projects was local, the Ritz Towers, [39] from July 29, 1980 to June 12, 1982, while the other two were overseas the New Istana Project in Brunei, Darussalam, from June 23, 1982 to February 16, 1984; [40] and again, the New Istana Project, from January 24, 1986 to May 25, 1986. [41]
For not disclosing that there had been other projects where DMCI engaged his services, Jamin accuses the company of suppressing vital evidence that supports his contention that he rendered service in the companys construction projects continuously and repeatedly for more than three decades. The non- disclosure might not have constituted suppression of evidence it could just have been overlooked by the company but the oversight is unfair to Jamin as the non- inclusion of the three projects gives the impression that there were substantial gaps not only of several months but years in his employment with DMCI. To reiterate, Jamins employment history with DMCI stands out for his continuous, repeated and successive rehiring in the companys construction projects. In all the 38 projects where DMCI engaged Jamins services, the tasks he performed as a carpenter were indisputably necessary and desirable in DMCIs construction business. He might not have been a member of a work pool as DMCI insisted that it does not maintain a work pool, but his continuous rehiring and the nature of his work unmistakably made him a regular employee. In Maraguinot, Jr. v. NLRC, [43] the Court held that once a project or work pool employeehas been: (1) continuously, as opposed to intermittently, rehired by the same employer for the same tasks or nature of tasks; and (2) these tasks are vital, necessary and indispensable to the usual business or trade of the employer, then the employee must be deemed a regular employee..
MILLENNIUM ERECTORS CORPORATION VS. VIRGILIO MAGALLANES NOV. 15, 2010 On the merits of the case, the Court finds that, indeed, respondent was a regular, not a project employee.
Petitioners various payrolls dating as early as 2001 show that respondent had been employed by it. As aptly observed by the appellate court, these documents, rather than sustaining petitioners argument, only serve to support respondents contention that he had been employed in various projects, if not for 16 years, at the very least two years prior to his dismissal.
Assuming arguendo that petitioner hired respondent initially on a per project basis, his continued rehiring, as shown by the sample payrolls converted his status to that of a regular employee. Following Cocomangas Beach Hotel Resort v. Visca, [16] the repeated and continuing need for respondents services is sufficient evidence of the necessity, if not indispensability, of his services to petitioner's business and, as a regular employee, he could only be dismissed from employment for a just or authorized cause.
Petitioner having failed to discharge its burden of proving that it terminated the services of respondent for cause and with due process, the challenged decision must remain.
RONILO SORREDA VS CAMVRIDGE ELECTRONICS CORP FEB. 11, 2010 In this instance, petitioner, from the period May 8, 1999 to October 8, 1999, was clearly a per-project employee of private respondent, resulting in an employer- employee relationship. Consequently, questions or disputes arising out of this relationship fell under the jurisdiction of the labor arbiter.
However, based on petitioners allegations in his position paper, his cause of action was based on an alleged second contract of employment separate and distinct from the per-project employment contract. Thus, petitioner insisted that there was a perfected contract of perpetual employment and that respondent was liable to pay him damages.
While there was an employer-employee relationship between the parties under their five-month per-project contract of employment, the present dispute is neither rooted in the aforestated contract nor is it one inherently linked to it. Petitioner insists on a right to be employed again in respondent company and seeks a determination of the existence of a new and separate contract that established that right. As such, his case is within the jurisdiction not of the labor arbiter but of the regular courts. The NLRC and the CA were therefore correct in ruling that the labor arbiter erroneously took cognizance of the case. Even assuming arguendo that the labor arbiter had the jurisdiction to decide the case, the Court cannot countenance petitioners claim that a contract of perpetual employment was ever constituted. While the Constitution recognizes the primacy of labor, it also recognizes the critical role of private enterprise in nation- building and the prerogatives of management. A contract of perpetual employment deprives management of its prerogative to decide whom to hire, fire and promote, and renders inutile the basic precepts of labor relations. While management may validly waive it prerogatives, such waiver should not be contrary to law, public order, public policy, morals or good customs. [24] An absolute and unqualified employment for life in the mold of petitioners concept of perpetual employment is contrary to public policy and good customs, as it unjustly forbids the employer from terminating the services of an employee despite the existence of a just or valid cause. It likewise compels the employer to retain an employee despite the attainment of the statutory retirement age, even if the employee has became a non- performing asset or, worse, a liability to the employer.
Moreover, aside from the self-serving claim of petitioner, there was no concrete proof to establish the existence of such agreement. Petitioner cannot validly force respondent to enter into a permanent employment contract with him. Such stance is contrary to the consensuality principle of contracts as well as to the management prerogative of respondent company to choose its employees.
WILLIAM UY CONSTRUCTION CORP VS TRINIDAD MARCH 10 2010 The Courts Ruling
But the test for distinguishing a project employee from a regular employee is whether or not he has been assigned to carry out a specific project or undertaking, with the duration and scope of his engagement specified at the time his service is contracted. [5] Here, it is not disputed that petitioner company contracted respondent Trinidads service by specific projects with the duration of his work clearly set out in his employment contracts. [6] He remained a project employee regardless of the number of years and the various projects he worked for the company. [7]
Generally, length of service provides a fair yardstick for determining when an employee initially hired on a temporary basis becomes a permanent one, entitled to the security and benefits of regularization. But this standard will not be fair, if applied to the construction industry, simply because construction firms cannot guarantee work and funding for its payrolls beyond the life of each project. And getting projects is not a matter of course. Construction companies have no control over the decisions and resources of project proponents or owners. There is no construction company that does not wish it has such control but the reality, understood by construction workers, is that work depended on decisions and developments over which construction companies have no say. In this case, respondent Trinidads series of employments with petitioner company were co-terminous with its projects. When its Boni Serrano-Katipunan Interchange Project was finished in December 2004, Trinidads employment ended with it. He was not dismissed. His employment contract simply ended with the project for which he had signed up. His employment history belies the claim that he continuously worked for the company. Intervals or gaps separated one contract from another. [9]
The CA noted that DOLE Order 19 required employers to submit a report of termination of employees every completion of construction project. And, since petitioner company submitted at the hearing before the Labor Arbiter only the termination report covering respondent Trinidads last project, it failed to satisfy such requirement.
But respondent Trinidad did not say in his complaint that he had been illegally dismissed after each of the projects for which he had been signed up. His complaint was essentially that he should have been rehired from the last project since he had already acquired the status of a regular employee. Consequently, petitioner company needed only to show the last status of Trinidads employment, namely, that of a project employee under a contract that had ended and the companys compliance with the reporting requirement for the termination of that employment. Indeed, both the Labor Arbiter and the NLRC were satisfied that the fact of petitioner companys compliance with DOLE Order 19 had been proved in this case. WHEREFORE, the Court GRANTS the petition.
DM CONSUNJI VS ANTONIO GOBRES AUGUST 8, 2010 Respondents were found to be project employees by the Labor Arbiter, the NLRC and the Court of Appeals. Their unanimous finding that respondents are project employees is binding on the Court. It must also be pointed out that respondents have not appealed from such finding by the Court of Appeals. It is only the petitioner that appealed from the decision of the Court of Appeals.
The main issue is whether or not respondents, as project employees, are entitled to nominal damages for lack of advance notice of their dismissal.
A project employee is defined under Article 280 of the Labor Code as 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 services to be performed is seasonal in nature and the employment is for the duration of the season. [19]
In this case, the Labor Arbiter, the NLRC and the Court of Appeals all found that respondents, as project employees, were validly terminated due to the completion of the phases of work for which their services were engaged. respondents, in this case, were not terminated for just cause under Article 282 of the Labor Code. Dismissal based on just causes contemplate acts or omissions attributable to the employee. [23] Instead, respondents were terminated due to the completion of the phases of work for which their services were engaged.
As project employees, respondents termination is governed by Section 1 (c) and Section 2 (III), Rule XXIII (Termination of Employment), Book V of the Omnibus Rules Implementing the Labor Code.
Records show that respondents were dismissed after the expiration of their respective project employment contracts, and due to the completion of the phases of work respondents were engaged for. Hence, the cited provisions requirements of due process or prior notice when an employee is dismissed for just or authorized cause (under Articles 282 and 283 of the Labor Code) prior to the completion of the project or phase thereof for which the employee was engaged do not apply to this case.
Hence, prior or advance notice of termination is not part of procedural due process if the termination is brought about by the completion of the contract or phase thereof for which the employee was engaged. Petitioner, therefore, did not violate any requirement of procedural due process by failing to give respondents advance notice of their termination; thus, there is no basis for the payment of nominal damages.
JUDY DAQUITAL V CAMUS ENGINEERING CORPORATION SEPT. 1, 2010 The issues boil down to whether the CA was correct in concluding that petitioners were project employees and that their dismissal from employment was legal.
We answer in the negative. A project employee is assigned to a project which begins and ends at determined or determinable times. [36] Employees who work under different project employment contracts for several years do not automatically become regular employees; they can remain as project employees regardless of the number of years they work. Length of service is not a controlling factor in determining the nature of ones employment. [37] Their rehiring is only a natural consequence of the fact that experienced construction workers are preferred. [38] In fact, employees who are members of a work pool from which a company draws workers for deployment to its different projects do not become regular employees by reason of that fact alone. The Court has consistently held that members of a work pool can either be project employees or regular employees. [39]
The principal test used to determine whether employees are project employees is whether or not the employees were assigned to carry out a specific project or undertaking, the duration or scope of which was specified at the time the employees were engaged for that project. [40]
Admittedly, respondents did not present the employment contracts of petitioners except that of Dacuital. They explained that it was no longer necessary to present the other contracts since petitioners were similarly situated. Having presented one contract, respondents believed that they sufficiently established petitioners status as project employees.
Even though the absence of a written contract does not by itself grant regular status to petitioners, such a contract is evidence that petitioners were informed of the duration and scope of their work and their status as project employees. [41] In this case, where no other evidence was offered, the absence of the employment contracts raises a serious question of whether the employees were properly informed at the onset of their employment of their status as project employees. [42]
While it is true that respondents presented the employment contract of Dacuital, the contract does not show that he was informed of the nature, as well as the duration of his employment. In fact, the duration of the project for which he was allegedly hired was not specified in the contract.
Even if we assume that under the above provision of the contract, Dacuital was informed of the nature of his employment and the duration of the project, that same contract is not sufficient evidence to show that the other employees were so informed. It is undisputed that petitioners had individual employment contracts, yet respondents opted not to present them on the lame excuse that they were similarly situated as Dacuital. The non-presentation of these contracts gives rise to the presumption that the employees were not informed of the nature and duration of their employment. It is doctrinally entrenched that in illegal dismissal cases, the employer has the burden of proving with clear, accurate, consistent, and convincing evidence that the dismissal was valid. Absent any other proof that the project employees were informed of their status as such, it will be presumed that they are regular employees. [44]
Moreover, Department Order No. 19 (as well as the old Policy Instructions No. 20) requires employers to submit a report of an employees termination to the nearest public employment office everytime the employment is terminated due to the completion of a project. [45] In this case, there was no evidence that there was indeed such a report. LMCECs failure to file termination reports upon the cessation of petitioners employment was an indication that petitioners were not project but regular employees. In cases involving an employees dismissal, the burden is on the employer to prove that the dismissal was legal. [46] This burden was not amply discharged by LMCEC in this case. Being regular employees, petitioners were entitled to security of tenure, and their services may not be terminated except for causes provided by law. [47]
Finally, records failed to show that LMCEC afforded petitioners, as regular employees, due process prior to their dismissal, through the twin requirements of notice and hearing. Petitioners were not served notices informing them of the particular acts for which their dismissal was sought. Nor were they required to give their side regarding the charges made against them, if any. Certainly, petitioners dismissal was not carried out in accordance with law and was, therefore, illegal. [48]
ROSITA PANGILINAN VS GMC JULY 12, 2004 Article 280 of the Labor Code comprehends three kinds of employees: (a) regular employees or those whose work is necessary or desirable to the usual business of the employer; (b) project employees or those 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 services to be performed is seasonal in nature and the employment is for the duration of the season; and, (c) casual employees or those who are neither regular nor project employees. 40
A regular employee is one who is engaged to perform activities which are necessary and desirable in the usual business or trade of the employer as against those which are undertaken for a specific project or are seasonal. 41 There are two separate instances whereby it can be determined that an employment is regular: (1) if the particular activity performed by the employee is necessary or desirable in the usual business or trade of the employer; and, (2) if the employee has been performing the job for at least a year. 42
An examination of the contracts entered into by the petitioners showed that their employment was limited to a fixed period, usually five or six months, and did not go beyond such period. The records reveal that the stipulations in the employment contracts were knowingly and voluntarily agreed to by the petitioners without force, duress or improper pressure, or any circumstances that vitiated their consent. Similarly, nothing therein shows that these contracts were used as a subterfuge by the respondent GMC to evade the provisions of Articles 279 and 280 of the Labor Code. The petitioners were hired as "emergency workers" and assigned as chicken dressers, packers and helpers at the Cainta Processing Plant. The respondent GMC is a domestic corporation engaged in the production and sale of livestock and poultry, and is a distributor of dressed chicken. While the petitioners' employment as chicken dressers is necessary and desirable in the usual business of the respondent, they were employed on a mere temporary basis, since their employment was limited to a fixed period. As such, they cannot be said to be regular employees, but are merely "contractual employees." Consequently, there was no illegal dismissal when the petitioners' services were terminated by reason of the expiration of their contracts. 47 Lack of notice of termination is of no consequence, because when the contract specifies the period of its duration, it terminates on the expiration of such period. A contract for employment for a definite period terminates by its own term at the end of such period. 48
In sum, we rule that the appeal was filed within the ten (10)-day reglementary period. Although the petitioners who mainly worked as chicken dressers performed work necessary and desirable in the usual business of the respondent, they were not regular employees therein. Consequently, the termination of their employment upon the expiry of their respective contracts was valid.
CE CONSTRUCTION CORP VS. ISAAC CIOCO SEPT. 8, 2004 The WORKERS contend that they are regular employees of the COMPANY, hence, entitled to reinstatement and backwages from the time of their illegal dismissal up to the date of their actual reinstatement. The COMPANY, on the other hand, contends that the WORKERS are its project employees; that they were not illegally dismissed; and, that in ruling otherwise, the CA disregarded the documentary evidence, i.e., Progress Billing and Notice of Termination Reports, clearly showing completion of the phases of the GTI Tower project for which the services of the WORKERS had been engaged. The issue of whether the WORKERS were regular or project employees of the COMPANY is a question of fact which shall no longer be dealt with in this petition for review, the Courts jurisdiction being limited to questions of law. The Labor Arbiter, the NLRC, and the CA, unanimously found that the WORKERS were project employees of the COMPANY. This finding is binding on this Court. We again hold that the fact that the WORKERS have been employed with the COMPANY for several years on various projects, the longest being nine (9) years, did not automatically make them regular employees considering that the definition of regular employment in Article 280 [11] of the Labor Code, makes specific exception with respect to project employment. The re-hiring of petitioners on a project-to-project basis did not confer upon them regular employment status. The practice was dictated by the practical consideration that experienced construction workers are more preferred. [12] It did not change their status as project employees. In his Decision dated April 17, 2000, the labor arbiter categorically found that the appropriate notices to the WORKERS and the corresponding reports were submitted by the COMPANY to the DOLE. The NLRC affirmed this finding of fact on appeal. The rule is that factual findings of administrative agencies, if supported by substantial evidence, are entitled to great weight. [14] More importantly, Section 2 [15] (III), Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Codeprovides that no prior notice of termination is required if the termination is brought about by completion of the contract or phase thereof for which the worker has been engaged. This is because completion of the work or project automatically terminates the employment, in which case, the employer is, under the law, only obliged to render a report to the DOLE on the termination of the employment. [16]
Finally, the CA ruled that the COMPANY failed to present evidence conclusively showing actual completion of the GTI Tower project or respective phases thereof for which the WORKERS had been hired. Allegedly, the best evidence of this fact is the schedule of completion of the whole or various phases of the construction project in the COMPANYs possession. Again, a review of the records shows that the COMPANY submitted the needed evidence. In its motion for reconsideration of the CAs decision, the COMPANY attached as Annexes A [17] and B, [18] Progress Billing Reports clearly showing that the GTI Tower project was already 80.9203% and 81.3747% accomplished as of May 31, 1999 and June 30, 1999, respectively. Specifically, the particular form, concreting and masonry works for which the WORKERS had been hired and assigned were already completed or near completion, as shown by Annexes A-3, A-4, and A-6 of the May Progress Billing Report, and Annexes B-3, B-4, B-6 and B-7 of the June Progress Billing Report. The WORKERS did not question the veracity of the evidence presented and just insisted that they are regular employees of the COMPANY, hence, not liable for termination on mere ground of project completion. Considering the foregoing, we hold that the COMPANY complied with the procedural as well as the substantive requirements of due process with respect to the WORKERS termination, as found by the Labor Arbiter and the NLRC. We reverse the CA.
ABESCO CONSTRUCTION AND DEVT. CORP VS RAMIREZ APRIL 10, 2006 In this petition for review under Rule 45 of the Rules of Court, petitioners raise the following issues for resolution: (1) whether respondents were project employees or regular employees and (2) whether respondents were illegally dismissed. On the first issue, we rule that respondents were regular employees. However, we take exception to the reasons cited by the LA (which both the NLRC and the CA affirmed) in considering respondents as regular employees and not as project employees. Contrary to the disquisitions of the LA, employees (like respondents) who work under different project employment contracts for several years do not automatically become regular employees; they can remain as project employees regardless of the number of years they work. 7 Length of service is not a controlling factor in determining the nature of one's employment. 8
Moreover, employees who are members of a "work pool" from which a company (like petitioner corporation) draws workers for deployment to its different projects do not become regular employees by reason of that fact alone. The Court has enunciated in some cases 9 that members of a "work pool" can either be project employees or regular employees. The principal test for determining whether employees are "project employees" or "regular employees" is whether they are assigned to carry out a specific project or undertaking, the duration and scope of which are specified at the time they are engaged for that project. 10 Such duration, as well as the particular work/service to be performed, is defined in an employment agreement and is made clear to the employees at the time of hiring. 11
In this case, petitioners did not have that kind of agreement with respondents. Neither did they inform respondents of the nature of the latter's work at the time of hiring. Hence, for failure of petitioners to substantiate their claim that respondents were project employees, we are constrained to declare them as regular employees. Furthermore, petitioners cannot belatedly argue that respondents continue to be their employees (so as to escape liability for illegal dismissal). Before the LA, petitioners staunchly postured that respondents were only "project employees" whose employment tenure was coterminous with the projects they were assigned to. However, before the CA, they took a different stance by insisting that respondents continued to be their employees. Petitioners' inconsistent and conflicting positions on their true relation with respondents make it all the more evident that the latter were indeed their regular employees. On the issue of illegal dismissal, we hold that petitioners failed to adhere to the "two-notice rule" which requires that workers to be dismissed must be furnished with: (1) a notice informing them of the particular acts for which they are being dismissed and (2) a notice advising them of the decision to terminate the employment. 12 Respondents were never given such notices.
ISMAEL SAMSON VS NLRC FEB 1, 1996 Hence this petition, which presents for resolution the sole issue of whether petitioner is a project or regular employee. Petitioner principally argues that respondent commission gravely erred in declaring that he is merely a project employee, invoking in support thereof the ruling enunciated in the case of Caramol vs. National Labor Relations Commission, et al. [4] His being a regular employee is allegedly supported by evidence, such as his project employment contracts with private respondent, which show that petitioner performed the same kind of work as rigger throughout his period of employment and that, as such, his task was necessary and desirable to private respondents usual trade or business. The bulk of the problem appears to hinge on the determination of whether or not Department Order No. 19 should be given retroactive effect in order that the notice of termination requirement may be dispensed with in this case for a correlative ruling on the presumption of regularity of employment which normally arises in case of non-compliance therewith. Both the petitioner and the Solicitor General submit that said order can only have prospective application. Private respondent believes otherwise. We find for petitioner. When the present action for regularization was filed on November 5, 1989 [6] and during the entire period of petitioners employment with private respondent prior to said date, the rule in force then was Policy Instruction No. 20 which, in the fourth paragraph thereof, required the employer company to report to the nearest Public Employment Office the fact of termination of a project employee as a result of the completion of the project or any phase thereof in which he is employed. Furthermore, contrary to private respondents asseveration, Department Order No. 19, which was issued on April 1, 1993, did not totally dispense with the notice requirement but, instead, made provisions therefor and considered it as one of the indicators that a worker is a project employee. More importantly, it must be emphasized that the notice of termination requirement has been retained by express provision of Department Order No. 19 under Section 6.1 thereof Perforce, we agree with the labor arbiter that private respondents failure to report the termination of petitioners services to the nearest Public Employment Office, after completion of every project or a phase thereof to which he is assigned, is a clear indication that petitioner was not and is not a project employee. The mandate in Article 281 of the Labor Code, which pertinently prescribes that the provisions of written agreement to the contrary notwithstanding and regardless of the oral agreements of the the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer and that any employee who has rendered at least one year of service, whether such service is continuous or broken shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such actually exists, should apply in the case of herein petitioner. It is not disputed that petitioner had been working for private respondent for approximately twenty-eight (28) years as of the adjudication of his plaint by respondent NLRC, and that his project-to-project employment was renewed several times.
PLDT VS YLAGAN Before us, PLDT essentially maintains its stand that respondent, as a project employee, was not dismissed from work but her employment ceased upon the expiration of her project employment contracts with PLDT.
A project employee is assigned to carry out a specific project or undertaking the duration and scope of which are specified at the time the employee is engaged in the project. [9] A project is a job or undertaking which is distinct, separate and identifiable from the undertakings of the company. [10] A project employee is assigned to a project which begins and ends at determined or determinable times. [11]
Various indicators convince us that respondent was not a project employee but a regular employee who was illegally dismissed.
First, respondent worked continuously for PLDT from November 1992 to July 1995 without any mention of a project to which she was specifically assigned. She was hired to perform accounting duties which were not shown as distinct, separate and identifiable from the usual undertakings of the company. Although essentially a telephone company, PLDT maintains its own accounting department to which respondent was assigned.
Second, aside from its statement that respondent was hired as a project employee for the Employment Payroll System Project which began in 1992, PLDT did not provide evidence of the project employment contracts covering the period from November 1992 (when respondent was hired) to July 1995. PLDT mentioned only two contracts but these pertained to her employment period from July 1995 to January 1996.
Third, despite the supposed expiration of respondents project employment contract on January 2, 1996, respondent continued to work for PLDT until May 2, 1996 when respondent was required to sign up with CESI. [12] Respondent worked for PLDT, under contract with CESI, until February 3, 1997. PLDT explained that it no longer allowed respondent to report for work by then since the project was already done. But the project was only completed in March 1997.
Most important of all, based on the records, PLDT did not report the termination of respondents supposed project employment to the Department of Labor and Employment as project employee. Department Order No. 19 (as well as the old Policy Instructions No. 20) required employers to submit a report of an employees termination to the nearest public employment office every time his employment was terminated due to a completion of a project. [13] PLDTsfailure to file termination reports was an indication that the respondent was not a project employee but a regular employee. [14]
PLDT asserts that even if respondent rendered continuous service for a year or so, she could not be deemed a regular employee because the services performed were not necessary or desirable to the usual trade or business of the company. On this, we agree with the CA:
It is absurd to argue that services rendered by the [respondent] as an accounting clerk to the accounting and auditing department of PLDT in relation to its PEPS project (computerization of employees[] payroll system) is not necessary or desirable to the companys business. There wont be any business without any workforce xxx. Employees render their services for a certain payment or compensation. Thus, [respondents] job pertaining to effective payroll system is part and parcel [of] the usual business of PLDT.
Even assuming that respondent was hired as a project employee from the onset, we have ruled that once such an employee has been: (1) continuously, as opposed to intermittently, re-hired by the same employer for the same tasks or nature of tasks and (2) these tasks are vital, necessary and indispensable to the usual business or trade of the employer, then the employee must be deemed a regular employee. [19]
From the foregoing, the duration (of at least one year) and necessity of respondents employment have been established. She was therefore a regular employee of PLDT.
BAHIA SHIPPING SERVICES BS REYNALDO CHUA APRIL 8, 2008 In the present case, petitioner has failed to establish a compelling reason for the Court to depart from this rule. In fact, as pointed out by the CA, petitioner's claim that respondent's tardiness was habitual lacks evidentiary support as no other documents on record were attached to substantiate that the private respondent was forewarned for the first and second time for any infraction or offense, work-related or not, vis--vis the performance of his regular duties and functions. [17]
It being settled that the dismissal of respondent was illegal, it follows that the latter is entitled to payment of his salary for the unexpired portion of his contract, as provided under Republic Act (R.A.) No. 8042, considering that his employment was pre-terminated on March 9, 1997 or four months prior to the expiration of his employment contract on July 17, 1997.
In Skippers Pacific, Inc. v. Mira, [25] wherein the overseas contract involved was only for six months, the Court held that it is the first option provided under Section 10 of R.A. No. 8042 which is applicable in that the overseas worker who was illegally dismissed is entitled to payment of all his salaries covering the entire unexpired period of his contract. The CA committed no error in adhering to the prevailing interpretation of Section 10 of R.A. No. 8042.
Finally, the Court comes to the last issue on whether in the computation of the foregoing award, respondent's guaranteed overtime pay amounting to US$197.00 per month should be included as part of his salary. Petitioner contends that there is no factual or legal basis for the inclusion of said amount because, after respondent's repatriation, he could not have rendered any overtime work. [26]
This time, petitioner's contention is well-taken.
The Court had occasion to rule on a similar issue in Stolt-Nielsen Marine Services (Phils.), Inc. v. National Labor Relations Commission, [27] where the NLRC was questioned for awarding to an illegally dismissed overseas worker fixed overtime pay equivalent to the unexpired portion of the latter's contract. In resolving the question, the Court, citing Cagampan v. National Labor Relations Commission, [28] held that although an overseas employment contract may guarantee the right to overtime pay, entitlement to such benefit must first be established, otherwise the same cannot be allowed.
Hence, it being improbable that respondent rendered overtime work during the unexpired term of his contract, the inclusion of his guaranteed overtime pay into his monthly salary as basis in the computation of his salaries for the entire unexpired period of his contract has no factual or legal basis and the same should have been disallowed.
VIRGILIO SAPIO VS CASTRO MAY 22, 2008 Thereupon, the Labor Arbiter proceeded to grant petitioners salary differential to the tune of P24,902.88.
The Court of Appeals did not subscribe to the common findings of the Labor Arbiter and the NLRC. The appellate court pointed out that allegations of fraud in the preparation of payroll sheets must be substantiated by evidence and not by mere suspicions or conjectures The conclusion of the Labor Arbiter that entries in the December 1995 payroll sheet could have been altered is utterly baseless. The claim that the December 1995 payroll sheet was written in pencil and was thus rendered it prone to alterations or erasures is clearly non sequitur. The same is true with respect to the typewritten payroll sheets. In fact, neither the Labor Arbiter nor the NLRC found any alteration or erasure or traces thereat, whether on the pencil-written or typewritten payroll sheets. Indeed, the most minute examination will not reveal any tampering. Furthermore, if there is any adverse conclusion as regards the December 1995 payroll sheet, it must be confined only to it and cannot be applied to the typewritten payroll sheets.
Moreover, absent any evidence to the contrary, good faith must be presumed in this case. Entries in the payroll, being entries in the course of business, enjoy the presumption of regularity under Rule 130, Section 43 of the Rules of Court. Hence, while as a general rule, the burden of proving payment of monetary claims rests on the employer, [20] when fraud is alleged in the preparation of the payroll, the burden of evidence shifts to the employee and it is incumbent upon him to adduce clear and convincing evidence in support of his claim. [21] Unfortunately, petitioners bare assertions of fraud do not suffice to overcome the disputable presumption of regularity.
While we adhere to the position of the appellate court that the tendency to alter the entries in the payrolls was not substantiated, we cannot however subscribe to the total deletion of the award of salary differential and attorneys fees, as it so ruled.
The Labor Arbiter granted a salary differential of P24,902.88. [22]
The Labor Arbiter erred in his computation. He fixed the daily wage rate actually received by petitioner at P105.00 [23] without taking into consideration the P141.00 rate indicated in the typewritten payroll sheets submitted by respondents. Moreover, the Labor Arbiter misapplied the wage orders [24] when he wrongly categorized respondent as falling within the first category. Based on the stipulated number of employees and audited financial statements, [25] respondents should have been covered by the second category.
To avoid further delay in the disposition of this case which is not in consonance with the objective of speedy justice, we have to adjudge the rightful computation of the salary differential based on the applicable wage orders. After all, the supporting records are complete.
The award of attorneys fees is warranted under the circumstances of this case. Under Article 2208 of the New Civil Code, attorney's fees can be recovered in actions for the recovery of wages of laborers and actions for indemnity under employer's liability laws [36] but shall not exceed 10% of the amount awarded. [37]
The fees may be deducted from the total amount due the winning party.
WHEREFORE, the petition is PARTIALLY GRANTED. D. PIECE-RATE LABOR CONGRESS OF THE PHILS. VS. NLRC MAY 21, 1998 We find for petitioners. That petitioner employees are pakyao or piece workers does not imply that they are not regular employees entitled to reinstatement. Private respondent Empire Food Products, Inc. is a food and fruit processing company. In Tabas v. California Manufacturing Co., Inc. (169 SCRA 497), this Honorable Court held that the work of merchandisers of processed food, who coordinate with grocery stores and other outlets for the sale of the processed food is necessary in the day-to-day operation[s] of the company. With more reason, the work of processed food repackers is necessary in the day-to-day operation[s] of respondent Empire Food Products. [10]
Petitioners are therefore entitled to reinstatement with full back wages pursuant to Article 279 of the Labor Code, as amended by R.A. No. 6715. Nevertheless, the records disclose that taking into account the number of employees involved, the length of time that has lapsed since their dismissal, and the perceptible resentment and enmity between petitioners and private respondents which necessarily strained their relationship, reinstatement would be impractical and hardly promotive of the best interests of the parties. In lieu of reinstatement then, separation pay at the rate of one month for every year of service, with a fraction of at least six (6) months of service considered as one (1) year, is in order. [13]
That being said, the amount of back wages to which each petitioner is entitled, however, cannot be fully settled at this time. Petitioners, as piece-rate workers having been paid by the piece, [14] there is need to determine the varying degrees of production and days worked by each worker. Clearly, this issue is best left to the National Labor Relations Commission. As to the other benefits, namely, holiday pay, premium pay, 13 th month pay and service incentive leave which the labor arbiter failed to rule on but which petitioners prayed for in their complaint, [15] we hold that petitioners are so entitled to these benefits. Three (3) factors lead us to conclude that petitioners, although piece-rate workers, were regular employees of private respondents. First, as to the nature of petitioners tasks, their job of repacking snack food was necessary or desirable in the usual business of private respondents, who were engaged in the manufacture and selling of such food products; second, petitioners worked for private respondents throughout the year, their employment not having been dependent on a specific project or season; and third, the length of time [16] that petitioners worked for private respondents. Thus, while petitioners mode of compensation was on a per piece basis, the status and nature of their employment was that of regular employees. The Rules Implementing the Labor Code exclude certain employees from receiving benefits such as nighttime pay, holiday pay, service incentive leave [17] and 13th month pay, [18] inter alia, field personnel and other employees whose time and performance is unsupervised by the employer, including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof. Plainly, petitioners as piece-rate workers do not fall within this group. As mentioned earlier, not only did petitioners labor under the control of private respondents as their employer, likewise did petitioners toil throughout the year with the fulfillment of their quota as supposed basis for compensation. Further, in Section 8 (b), Rule IV, Book III which we quote hereunder, piece workers are specifically mentioned as being entitled to holiday pay. SEC. 8. Holiday pay of certain employees.- (b) Where a covered employee is paid by results or output, such as payment on piece work, his holiday pay shall not be less than his average daily earnings for the last seven (7) actual working days preceding the regular holiday: Provided, however, that in no case shall the holiday pay be less than the applicable statutory minimum wage rate. In addition, the Revised Guidelines on the Implementation of the 13 th Month Pay Law, in view of the modifications to P.D. No. 851 [19] by Memorandum Order No. 28, clearly exclude the employer of piece rate workers from those exempted from paying 13 th month pay, to wit: 2. EXEMPTED EMPLOYERS The following employers are still not covered by P.D. No. 851: d. Employers of those who are paid on purely commission, boundary or task basis, and those who are paid a fixed amount for performing specific work, irrespective of the time consumed in the performance thereof, except where the workers are paid on piece- rate basis in which case the employer shall grant the required 13th month pay to such workers. (italics supplied) The Revised Guidelines as well as the Rules and Regulations identify those workers who fall under the piece-rate category as those who are paid a standard amount for every piece or unit of work produced that is more or less regularly replicated, without regard to the time spent in producing the same. [20]
As to overtime pay, the rules, however, are different. According to Sec. 2(e), Rule I, Book III of the Implementing Rules, workers who are paid by results including those who are paid on piece-work, takay, pakiao, or task basis, if their output rates are in accordance with the standards prescribed under Sec. 8, Rule VII, Book III, of these regulations, or where such rates have been fixed by the Secretary of Labor in accordance with the aforesaid section, are not entitled to receive overtime pay. Here, private respondents did not allege adherence to the standards set forth in Sec. 8 nor with the rates prescribed by the Secretary of Labor. As such, petitioners are beyond the ambit of exempted persons and are therefore entitled to overtime pay. Once more, the National Labor Relations Commission would be in a better position to determine the exact amounts owed petitioners, if any. IN VIEW WHEREOF, the instant petition is hereby GRANTED. 1. DECLARING petitioners to have been illegally dismissed by private respondents, thus entitled to full back wages and other privileges, and separation pay in lieu of reinstatement at the rate of one months salary for every year of service with a fraction of six months of service considered as one year; SO ORDERED.
LAMBO VS NLRC OCT. 26, 1999 The petition is meritorious. First. There is no dispute that petitioners were employees of private respondents although they were paid not on the basis of time spent on the job but according to the quantity and the quality of work produced by them. There are two categories of employees paid by results: (1) those whose time and performance are supervised by the employer. (Here, there is an element of control and supervision over the manner as to how the work is to be performed. A piece-rate worker belongs to this category especially if he performs his work in the company premises.); and (2) those whose time and performance are unsupervised. (Here, the employers control is over the result of the work. Workers on pakyao and takay basis belong to this group.) Both classes of workers are paid per unit accomplished. Piece-rate payment is generally practiced in garment factories where work is done in the company premises, while payment on pakyao and takay basis is commonly observed in the agricultural industry, such as in sugar plantations where the work is performed in bulk or in volumes difficult to quantify. [4] Petitioners belong to the first category, i.e., supervised employees. In determining the existence of an employer-employee relationship, the following elements must be considered: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employees conduct. [5] Of these elements, the most important criterion is whether the employer controls or has reserved the right to control the employee not only as to the result of the work but also as to the means and methods by which the result is to be accomplished. [6]
In this case, private respondents exercised control over the work of petitioners. As tailors, petitioners worked in the companys premises from 8:00 a.m. to 7:00 p.m. daily, including Sundays and holidays. The mere fact that they were paid on a piece-rate basis does not negate their status as regular employees of private respondents. The term wage is broadly defined in Art. 97 of the Labor Code as remuneration or earnings, capable of being expressed in terms of money whether fixed or ascertained on a time, task, piece or commission basis. Payment by the piece is just a method of compensation and does not define the essence of the relations. [7] Nor does the fact that petitioners are not covered by the SSS affect the employer-employee relationship. Indeed, the following factors show that petitioners, although piece-rate workers, were regular employees of private respondents: (1) within the contemplation of Art. 280 of the Labor Code, their work as tailors was necessary or desirable in the usual business of private respondents, which is engaged in the tailoring business; (2) petitioners worked for private respondents throughout the year, their employment not being dependent on a specific project or season; and, (3) petitioners worked for private respondents for more than one year. [8]
As petitioners were illegally dismissed, they are entitled to reinstatement with backwages. Considering that petitioners were dismissed from the service on January 17, 1989, i.e.,prior to March 21, 1989, [18] the Labor Arbiter correctly applied the rule in the Mercury Drug case, [19] according to which the recovery of backwages should be limited to three years without qualifications or deductions. Any award in excess of three years is null and void as to the excess. [20]
The Labor Arbiter correctly ordered private respondents to give separation pay. Considerable time has lapsed since petitioners dismissal, so that reinstatement would now be impractical and hardly in the best interest of the parties. In lieu of reinstatement, separation pay should be awarded to petitioners at the rate of one month salary for every year of service, with a fraction of at least six (6) months of service being considered as one (1) year. [21]
The awards for overtime pay, holiday pay and 13th month pay are in accordance with our finding that petitioners are regular employees, although paid on a piece-rate basis. [22]
WHEREFORE, the decision of the National Labor Relations Commission is SET ASIDE and another one is RENDERED ordering private respondents to pay petitioners the total amount of One Hundred Eighty-One Thousand One Hundred Two Pesos and 40/100 (P181,102.40), as computed above. SO ORDERED.
MARK ROCHE INTERNATIONAL VS NLRC AUG. 31, 1999 Finally, as correctly held by the NLRC, private respondents as piece-rate employees are not entitled to service incentive leave pay as well as holiday pay even if they are entitled to other benefits like COLA and 13th month pay. Service incentive leave pay shall not apply to employees whose performance is unsupervised by the employer, including those who are paid in a fixed amount for performing work irrespective of the time consumed in the performance thereof. [7]
WHEREFORE, this Court finds that private respondents Eileen Rufon, Lilia Briones, Beatriz Managaytay, Delia Arellano, Anita Marcelo, Rio Mariano, Marissa Sadili, Wilma Patacay, Estrella Mallari, Delia Laroya and Divina Villarba were illegally dismissed - not merely illegally constructively dismissed - by petitioners Mark Roche International and/or Eduardo Dayot and Susan Dayot, and to this extent, the assailed Decision of public respondent National Labor Relations Commission affirming that of the Labor Arbiter, is MODIFIED. However, it is AFFIRMED insofar as it ordered the reinstatement of private respondents with back wages, salary differentials and 13th month pay. The service incentive leave pay awarded by the Labor Arbier but deleted by the National Labor Relations Commission is likewise DELETED. SO ORDERED.
E. PROBATIONARY F CEBU MARINE BEACH RESOT VS NLRC - OCT 23, 2003 Hence, this petition for review on certiorari. Petitioners contend that the Appellate Court committed a serious error when it unilaterally extended the 6-month probationary employment contracts of the respondents by awarding them full backwages, or in lieu of their reinstatement, when it ordered payment of their separation pay computed from the time of their dismissal up to the finality of its Decision. The sole legal issue for our Resolution is whether respondents were illegally dismissed from employment by petitioner company. We hold that the Court of Appeals did not err when it ruled that respondents were illegally dismissed from the service. It is settled that while probationary employees do not enjoy permanent status, they are entitled to the constitutional protection of security of tenure. Their employment may only be terminated for just cause or when they fail to qualify as regular employees in accordance with reasonable standards made known to them by their employer at the time of engagement, and after due process. 5
Here, petitioners terminated respondents probationary employment on the grounds of abandonment and failure to qualify for the positions for which they were employed. On this point, we quote with approval the findings of the Court of Appeals, thus: "x x x. It is undisputed that Mr. Sasaki made an utterance to the effect that private respondents should go home and never come back to work for the company again. Such utterance is tantamount to a dismissal. Its meaning is also clear and unmistakable no matter which accent was used by Mr. Sasaki. Considering further that Mr. Sasaki was in charge of the training of the private respondents, his words carry authority and conviction. Even assuming for the sake of argument that Mr. Sasaki was never vested with the power of dismissal, the petitioner company ratified Mr. Sasakis acts. When petitioner company sent a strongly worded memorandum to private respondents asking them to explain why their services should not be terminated for failure to live up to the companys expectations, it showed intention to terminate. x x x: "x x x "The subsequent issuances of the memos were, as rightly interpreted by the public respondent, merely an afterthought to escape the legal liability arising from the illegal termination of the private respondents services. x x x: "x x x "The next three reasons adduced by the petitioners sought to prove the existence of a just cause for the dismissal of private respondents, which is, abandonment. We are not convinced. The fact that private respondents never came back to work despite the issuance of the memoranda by the petitioner does not support the allegation of abandonment. x x x." Indeed, we find no indication that respondents have shown by some overt acts their intention to sever their employment in petitioner company. To constitute abandonment, there must be clear proof of deliberate and unjustified intent to sever the employer- employee relationship. Clearly, the operative factor is still the employers ultimate act of putting an end to his employment. Here, respondents did not report back for work because they were warned by petitioner Sasaki not to return. But immediately, they filed with the Labor Arbiters Office a complaint for illegal dismissal. It is a settled doctrine that the filing of a complaint for illegal dismissal is inconsistent with the charge of abandonment, for an employee who takes steps to protest his dismissal cannot by logic be said to have abandoned his work. 6
That respondents failed to qualify for their positions, suffice it to state that at the time they were dismissed, they were still in a "trial period" or probationary period. Being in the nature of a "trial period," the essence of a probationary period of employment fundamentally lies in the purpose or objective sought to be attained by both the employer and the employee during said period. While the employer observes the fitness, propriety and efficiency of a probationer to ascertain whether he is qualified for permanent employment, the probationer, on the other hand, seeks to prove to the employer that he has the qualifications to meet the reasonable standards for permanent employment which obviously were made known to him. 7 To reiterate, in the case at bar, far from allowing the respondents to prove that they possessed the qualifications to meet the reasonable standards for their permanent employment, petitioners peremptorily dismissed them from the service. On another tack, petitioners argument that the Appellate Courts award of full backwages and separation pay in effect unilaterally extended respondents 6-month probationary employment is bereft of merit. In Philippine Manpower Services, Inc. vs. NLRC, 8 we held that "absent the grounds for termination of a probationary employee, he is entitled to continued employment even beyond the probationary period." On a similar note, our ruling in Lopez vs. Javier 9 is quite explicit, thus: "x x x, probationary employees who are unjustly dismissed from work during the probationary period shall be entitled to reinstatement and payment of full backwages and other benefits and privileges from the time they were dismissed up to their actual reinstatement, conformably with Article 279 of the Labor Code, as amended by Section 34 of Republic Act No. 6715, which took effect on March 21, 1989: x x x An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement." Verily, respondents who were unjustly dismissed from work are actually entitled to reinstatement without loss of seniority rights and other privileges as well as to their full backwages, inclusive of allowances, and to other benefits or their monetary equivalent computed from the time their compensation was withheld from them up to the time of their actual reinstatement. 10
However, the circumstances obtaining in this case do not warrant the reinstatement of respondents. Antagonism caused a severe strain in the relationship between them and petitioner company. A more equitable disposition, as correctly held by the NLRC, would be an award of separation pay 11 equivalent to at least one month pay, or one month pay for every year of service, whichever is higher, 12 in addition to their full backwages, allowances and other benefits.1a\^/phi1.net WHEREFORE, the assailed Decision and Resolution of the Court of Appeals dated November 5, 1999 and April 18, 2000 are hereby AFFIRMED WITH MODIFICATION in the sense that, in lieu of reinstatement, respondents are awarded separation pay equivalent to at least one month pay, or one month pay for every year of service, whichever is higher; and their full backwages, other privileges and benefits, or their monetary equivalent during the period of their dismissal up to their supposed actual reinstatement. Costs against petitioners. SO ORDERED.
RODIN ALCIRA VS NLRC - JUNE 9, 2004
Hence, this petition for review based on the following assignment of errors: I The Court of Appeals gravely erred, blatantly disregarded the law and established jurisprudence, in upholding the decision of the National Labor Relations Commission. II The Court of Appeals gravely erred and blatantly disregarded the law in holding that probationary employment is employment for a definite period. III The Court of Appeals gravely erred in holding that an employer can be presumed to have complied with its duty to inform the probationary employee of the standards to make him a regular employee. IV The Court of Appeals gravely erred and failed to afford protection to labor in not applying to the instant case the doctrine laid down by this Honorable Court in Serrano vs. NLRC, et. al., G.R. No. 117040, January 27, 2000. 9
Central to the matter at hand is Article 281 of the Labor Code which provides that: ART. 281. PROBATIONARY EMPLOYMENT. Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee. The first issue we must resolve is whether petitioner was allowed to work beyond his probationary period and was therefore already a regular employee at the time of his alleged dismissal. We rule in the negative. Petitioner claims that under the terms of his contract, his probationary employment was only for five months as indicated by the remark "Please be informed that after five months, your performance shall be evaluated and any adjustment in salary shall depend on your work performance." The argument lacks merit. As correctly held by the labor arbiter, the appointment contract also stated in another part thereof that petitioners employment status was "probationary (6 mos.)." The five-month period referred to the evaluation of his work. 10
Petitioner insists that he already attained the status of a regular employee when he was dismissed on November 20, 1996 because, having started work on May 20, 1996, the six- month probationary period ended on November 16, 1996. According to petitioners computation, since Article 13 of the Civil Code provides that one month is composed of thirty days, six months total one hundred eighty days. As the appointment provided that petitioners status was "probationary (6 mos.)" without any specific date of termination, the 180th day fell on November 16, 1996. Thus, when he was dismissed on November 20, 1996, he was already a regular employee. Petitioners contention is incorrect. In CALS Poultry Supply Corporation, et. al. vs. Roco, et. al., 11 this Court dealt with the same issue of whether an employment contract from May 16, 1995 to November 15, 1995 was within or outside the six-month probationary period. We ruled that November 15, 1995 was still within the six-month probationary period. We reiterate our ruling in CALS Poultry Supply: (O)ur computation of the 6-month probationary period is reckoned from the date of appointment up to the same calendar date of the 6th month following.(italics supplied) In short, since the number of days in each particular month was irrelevant, petitioner was still a probationary employee when respondent Middleby opted not to "regularize" him on November 20, 1996. The second issue is whether respondent Middleby informed petitioner of the standards for "regularization" at the start of his employment. Section 6 (d) of Rule 1 of the Implementing Rules of Book VI of the Labor Code (Department Order No. 10, Series of 1997) provides that: x x x x x x x x x (d) In all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at that time, he shall be deemed a regular employee. x x x x x x x x x We hold that respondent Middleby substantially notified petitioner of the standards to qualify as a regular employee when it apprised him, at the start of his employment, that it would evaluate his supervisory skills after five months. In Orient Express Placement Philippines vs. National Labor Relations Commission, 12 we ruled that an employer failed to inform an employee of the reasonable standards for becoming a regular employee: Neither private respondent's Agency-Worker Agreement with ORIENT EXPRESS nor his Employment Contract with NADRICO ever mentioned that he must first take and pass a Crane Operator's License Examination in Saudi Arabia before he would be allowed to even touch a crane. Neither did he know that he would be assigned as floorman pending release of the results of the examination or in the event that he failed; more importantly, that he would be subjected to a performance evaluation by his superior one (1) month after his hiring to determine whether the company was amenable to continuing with his employment. Hence, respondent Flores could not be faulted for precisely harboring the impression that he was hired as crane operator for a definite period of one (1) year to commence upon his arrival at the work-site and to terminate at the end of one (1) year. No other condition was laid out except that he was to be on probation for three (3) months.(emphasis supplied) Conversely, an employer is deemed to substantially comply with the rule on notification of standards if he apprises the employee that he will be subjected to a performance evaluation on a particular date after his hiring. We agree with the labor arbiter when he ruled that: In the instant case, petitioner cannot successfully say that he was never informed by private respondent of the standards that he must satisfy in order to be converted into regular status. This rans (sic) counter to the agreement between the parties that after five months of service the petitioners performance would be evaluated. It is only but natural that the evaluation should be made vis--vis the performance standards for the job. Private respondent Trifona Mamaradlo speaks of such standard in her affidavit referring to the fact that petitioner did not perform well in his assigned work and his attitude was below par compared to the companys standard required of him. 13
The third issue for resolution is whether petitioner was illegally dismissed when respondent Middleby opted not to renew his contract on the last day of his probationary employment. It is settled that even if probationary employees do not enjoy permanent status, they are accorded the constitutional protection of security of tenure. This means they may only be terminated for just cause or when they otherwise fail to qualify as regular employees in accordance with reasonable standards made known to them by the employer at the time of their engagement. 14
But we have also ruled in Manlimos, et. al. vs. National Labor Relations Commission 15 that this constitutional protection ends on the expiration of the probationary period. On that date, the parties are free to either renew or terminate their contract of employment. Manlimos concluded that "(t)his development has rendered moot the question of whether there was a just cause for the dismissal of the petitioners xxx." 16 In the case at bar, respondent Middleby exercised its option not to renew the contract when it informed petitioner on the last day of his probationary employment that it did not intend to grant him a regular status. Although we can regard petitioners severance from work as dismissal, the same cannot be deemed illegal. As found by the labor arbiter, the NLRC and the Court of Appeals, petitioner (1) incurred ten absences (2) was tardy several times (3) failed to wear the proper uniform many times and (4) showed inferior supervisory skills. Petitioner failed to satisfactorily refute these substantiated allegations. Taking all this in its entirety, respondent Middleby was clearly justified to end its employment relationship with petitioner. WHEREFORE, the petition is hereby DENIED. No costs. SO ORDERED.
MITSUBISHI MOTORS VS. CHRYSLER PHILS LABOR UNION JUNE 29, 2004 The Present Petition Undaunted, the MMPC, now the petitioner, filed this instant petition, alleging as follows: A. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REVERSING THE 3 NOVEMBER 1997 DECISION OF THE HONORABLE VA DANILO LORREDO, AND IN FINDING THAT RESPONDENT PARAS (WAS) ILLEGALLY DISMISSED AND ORDERING HIS REINSTATEMENT. B. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN ORDERING THE REINSTATEMENT OF PARAS WITH FULL BACKWAGES DESPITE THE CHANGE IN THE FINANCIAL CIRCUMSTANCES OF THE COMPANY. C. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT THE SIX-MONTH PROBATIONARY PERIOD OF PARAS WHICH STARTED ON 27 MAY 1996 HAD EXPIRED 23 NOVEMBER 1996. 21
The petitioner asserts that the CA erred in ruling that respondent Paras was already a regular employee when he was served the notice of termination. Citing Article 13 of the New Civil Code, the petitioner argued that the six-month probationary period should be computed as follows: May 27-31 = 4 days Jun(e) 1-30 = 1 month (30 days) July 1-31 = 1 month (30 days) Aug(.) 1-31 = 1 month (30 days) Sept(.) 1-30 = 1 month (30 days) Oct(.) 1-31 = 1 month (30 days) Nov(.) 1-26 = 26 days 22
Hence, according to the petitioner, when the termination letter was served on November 26, 1996, Paras was still a probationary employee. Considering that he did not qualify for regularization, his services were legally terminated. As such, the CA erred in ordering his reinstatement and the payment of his backwages. According to the petitioner, even assuming that respondent Paras was a regular employee when he was dismissed, his reinstatement had already become moot and academic because of the retrenchment program effected as a result of the business losses it had suffered in the year 1997. Respondent Paras, who was employed only in May 27, 1996, would have been included in the first batch of employees retrenched in February of 1998, in accordance with the "last in first out policy" embedded in the CBA. The petitioner further contends that Paras backwages should be computed only up to February of 1998. In their comment on the petition, the respondents argue that the CA was correct in concluding that the termination letter was served on respondent Paras one hundred eighty third (183rd) day of employment with the petitioner, asserting that six (6) months is equivalent to one hundred eighty (180) days. Since respondent Paras was employed on May 27, 1996, the 180th day fell on November 23, 1996. Thus, respondent Paras was already a regular employee when the termination letter was served on him. Consequently, his dismissal should be based on the just or authorized causes provided for by the Labor Code, and after proper notice. The respondents, likewise, contend that the petitioner cannot raise new and unsubstantiated allegations in its petition at bar. The Issues The issues for resolution are the following: (a) whether or not respondent Paras was already a regular employee on November 26, 1996; (b) whether or not he was legally dismissed; (c) if so, whether or not his reinstatement had been rendered moot and academic; and, (d) whether or not his backwages should be computed only up to February of 1998. The Courts Ruling The petition is partially granted. At the outset, we must stress that only errors of law are generally reviewed by this Court in petitions for review on certiorari of CA decisions. 23 Questions of fact are not entertained. 24 This Court is not a trier of facts and, in labor cases, this doctrine applies with greater force. Factual questions are for labor tribunals to resolve. 25 The findings of fact of quasi-judicial bodies like the National Labor Relations Commission (NLRC), are accorded with respect, even finality, if supported by substantial evidence.Particularly when passed upon and upheld by the Court of Appeals, such findings are binding and conclusive upon the Supreme Court and will not normally be disturbed. 26
However, when the findings of the NLRC and the Court of Appeals are inconsistent with each other, there is a need to review the records to determine which of them should be preferred as more conformable to the evidentiary facts. 27 Considering that the CAs findings of fact clash with those of the Voluntary Arbitrator, this Court is compelled to go over the records of the case, as well as the submissions of the parties. 28
Regularization of Employment Indeed, an employer, in the exercise of its management prerogative, may hire an employee on a probationary basis in order to determine his fitness to perform work. 29 Under Article 281 of the Labor Code, the employer must inform the employee of the standards for which his employment may be considered for regularization. Such probationary period, unless covered by an apprenticeship agreement, shall not exceed six (6) months from the date the employee started working. The employees services may be terminated for just cause or for his failure to qualify as a regular employee based on reasonable standards made known to him. 30
Respondent Paras was employed as a management trainee on a probationary basis. During the orientation conducted on May 15, 1996, he was apprised of the standards upon which his regularization would be based. He reported for work on May 27, 1996. As per the companys policy, the probationary period was from three (3) months to a maximum of six (6) months. Applying Article 13 of the Civil Code, 31 the probationary period of six (6) months consists of one hundred eighty (180) days. 32 This is in conformity with paragraph one, Article 13 of the Civil Code, which provides that the months which are not designated by their names shall be understood as consisting of thirty (30) days each. The number of months in the probationary period, six (6), should then be multiplied by the number of days within a month, thirty (30); hence, the period of one hundred eighty (180) days. As clearly provided for in the last paragraph of Article 13, in computing a period, the first day shall be excluded and the last day included. Thus, the one hundred eighty (180) days commenced on May 27, 1996, and ended on November 23, 1996. The termination letter dated November 25, 1996 was served on respondent Paras only at 3:00 a.m. of November 26, 1996. He was, by then, already a regular employee of the petitioner under Article 281 of the Labor Code. The Legality of The Dismissal An employee cannot be dismissed except for just or authorized cause as found in the Labor Code and after due process. 33 The following grounds would justify the dismissal of an employee: (a) Serious misconduct or willful disobedience by the employee of the lawful orders of the employer or representative in connection with his work; (b) Gross and habitual neglect by the employee of his duties; (c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; (d) Commission of a crime or offense by the employee against the person of his employer or of any immediate member of his family or his duly authorized representative; and (e) Other causes analogous to the foregoing. 34
The basis for which respondent Paras services were terminated was his alleged unsatisfactory rating arising from poor performance. It is a settled doctrine that the employer has the burden of proving the lawfulness of his employees dismissal. The validity of the charge must be clearly established in a manner consistent with due process. 35
Under Article 282 of the Labor Code, an unsatisfactory rating can be a just cause for dismissal only if it amounts to gross and habitual neglect of duties. Gross negligence has been defined to be the want or absence of even slight care or diligence as to amount to a reckless disregard of the safety of person or property. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. 36 A careful perusal of the records of this case does not show that respondent Paras was grossly negligent in the performance of his duties. The company policy provides the following rule in performance evaluation: The performance rating sheet must be accomplished by the immediate supervisor, then reviewed by the Department Head, and concurred by the Division Head. The Personnel Manager likewise must note all submitted performance sheets. Once the rating sheet has gone through this standard procedure, the immediate supervisor shall discuss the results of the performance rating with the employee. The discussion/conference may be done in the presence of the Department Head. This is to emphasize the point that the employee is given due importance especially in matters pertaining to his development as a person and employee. 37
In the present case, the immediate supervisor of respondent Paras gave him an average performance rating and found him fit for regularization. 38 Thereafter, his immediate supervisor and the department head reviewed the said rating, which was duly noted by the personnel manager. However, in a complete turn around, the petitioner made it appear that after the performance evaluation of respondent Paras was reviewed by the department and division heads, it was unanimously agreed that the respondents performance rating was unsatisfactory, making him unfit for regularization. There is no showing that respondent Paras was informed of the basis for the volte face of the management group tasked to review his performance rating. His immediate supervisor even told him that he had garnered a satisfactory rating and was qualified for regularization, only to later receive a letter notifying him that his employment was being terminated. Considering that respondent Paras was not dismissed for a just or authorized cause, his dismissal from employment was illegal. Furthermore, the petitioners failure to inform him of any charges against him deprived him of due process. Clearly, the termination of his employment based on his alleged unsatisfactory performance rating was effected merely to cover up and "deodorize" the illegality of his dismissal. Reinstatement and Backwages The normal consequences of illegal dismissal are reinstatement without loss of seniority rights and the payment of backwages computed from the time the employees compensation was withheld from him. 39 Since respondent Paras dismissal from employment is illegal, he is entitled tore instatement and to be paid backwages from the time of his dismissal up to the time of his actual reinstatement. The petitioner asserts that assuming respondent Paras was illegally dismissed, his reinstatement had become moot and academic because of its retrenchment program which was effected beginning February 1998. The petitioner posits that even if respondent Paras had become a regular employee by November 26, 1996, he would have been included in the first phase of its retrenchment program, pursuant to the "last in first out policy" embedded in the CBA. Hence, the petitioner concludes, the payment of backwages should be computed up to February of 1998. The respondents, for their part, aver that the petitioner is proscribed from alleging new circumstances and allegations of fact, particularly on financial reverses, before the Court of Appeals and the Voluntary Arbitrator. We do not agree with the respondents. A cursory examination of the records shows that the petitioner could not raise its retrenchment program as an issue before the VA, because it was implemented only in February 1998, when the case was already in the CA. However, we note that the petitioner did not raise the same in its comment to the petition. The petitioner asserted the matter only in its October 20, 2000 motion for reconsideration of the decision of the CA, where it alleged that the retrenchment program was effected to arrest the continuing business losses resulting from the financial reverses it experienced in 1997. Nevertheless, it is not denied that because of the petitioners losses, it retrenched seven hundred (700) employees. Business reverses or losses are recognized by law as an authorized cause for termination of employment. Still, it is an essential requirement that alleged losses in business operations must be proven convincingly. Otherwise, such ground for termination would be susceptible to abuse by scheming employers, who might be merely feigning business losses or reverses in their business ventures to ease out employees. 40 Retrenchment is an authorized cause for termination of employment which the law accords an employer who is not making good in its operations in order to cut back on expenses for salaries and wages by laying off some employees. The purpose of retrenchment is to save a financially ailing business establishment from eventually collapsing. 41
In this case, the petitioner submitted in the CA its financial statements for 1996, 1997 and 1998 42 as well as its application for retrenchment. In its Statements of Income and Unappropriated Retained Earning, it was shown that in 1996, the parent company of the petitioner had a net income of P467,744,285. In 1997, it had a net loss ofP29,253,511. 43 In 1998, its net loss, after effecting retrenchment and closing several plants, was arrested and dropped to P8,156,585. 44 This shows that even after the retrenchment, the petitioner MMPC still suffered net losses. In 1996, the petitioners current assets amounted to P5,381,743,576; it increased to P8,033,932,745 45 in 1997, while in 1998, it was reduced to P5,053,874,359. 46 This shows that the petitioners assets acquired in 1997 diminished in 1998. The figures for Current Liabilities are consistent with the movement of current assets for 1997 and 1998. In 1996, the petitioner incurred current liabilities of P1,966,445,401 which increased to P5,088,990,117 47 in 1997 and decreased to P2,880,259,811 48 in 1998. To reduce its losses, the petitioner had to dispose of some of its current assets to cover the increased liability incurred in 1997, and had to resort to borrowings in 1998. The continuity of losses which started in 1997 is further illustrated in the figures on retained earnings for 1996, 1997 and 1998. In 1996, retained earnings stood at P1,838,098,175, 49 which decreased to P994,942,628 50 in 1997 and further decreased to P592,614,548 51 in 1998. The petitioners losses in 1997 and 1998 are not insignificant. It is beyond cavil then, that the serious and actual business reverses suffered by the petitioner justified its resort to retrenchment of seven hundred (700) of its employees. The records show that the petitioner informed the Department of Labor and Employment of its plight and intention to retrench employees as a result of the shutdown of its plants. 52 The termination of the five hundred thirty-one (531) affected employees were made effective a month from receipt of the termination letter mailed on February 25, 1998. 53
In accordance with the CBA between MMPC and CPLU, employees who were recently hired were the ones retrenched. Considering that respondent Paras had just been regularized on November 24, 1996, he would have been included among those who had been retrenched had he not been dismissed. The unfavorable financial conditions of the petitioner may not justify reinstatement. However, it is not a sufficient ground to deny backwages to respondent Paras who was illegally dismissed. 54 Considering that notices of retrenchment were mailed on February 25, 1998 and made effective one month therefrom, respondent Paras should be paid full backwages from the date of his illegal dismissal up to March 25, 1998. Pursuant to Article 283 of the Labor Code, he should be paid separation pay equivalent to one (1) month salary, or to at least one-half month pay for every year of service, whichever is higher, a fraction of at least six months to be considered as one (1) year. 55
IN LIGHT OF ALL THE FOREGOING, the petition is PARTIALLY GRANTED. The September 13, 2000 Decision of the Court of Appeals in CAGR SP No. 46030 is hereby AFFIRMED WITH MODIFICATIONS. The petitioner isORDERED to pay respondent Nelson Paras separation pay equivalent to one (1) month, or to at least one-half (1/2) month pay for every year of service, whichever is higher, a fraction of at least six (6) months to be considered as one year; and to pay full backwages, computed from the time of his dismissal up to March 25, 1998. That portion of the decision of the Court of Appeals directing the reinstatement of the respondent Paras isDELETED. No costs. SO ORDERED.
DUSIT HOTEL NIKKO VS RENATO M. GATBONTON MAY 5, 2006 The appellate court granted the petition and reinstated the decision of the Labor Arbiter. The present petition is anchored on the following grounds: I
WHETHER OR NOT THE RESPONDENT WAS STILL A PROBATIONARY EMPLOYEE AT THE TIME OF HIS DISMISSAL;
II WHETHER OR NOT THE RESPONDENT WAS VALIDLY DISMISSED ON THE GROUND OF FAILURE TO MEET THE STANDARDS OF SATISFACTORY PERFORMANCE MADE KNOWN TO HIM AT THE TIME OF HIS ENGAGEMENT; III WHETHER OR NOT [RESPONDENT] IS ENTITLED TO REINSTATEMENT, BACKWAGES AND ATTORNEYS FEES; IV WHETHER OR NOT [RESPONDENT] HAS BEEN PAID HIS REMAINING SALARIES. [9]
Essentially, we must resolve two questions: (1) Was respondent a regular employee at the time of his dismissal? and (2) Was he validly terminated?
As in previous cases, when we find arbitrariness and disharmony in the factual findings of the Labor Arbiter and the National Labor Relations Commission, we review the findings of fact and if errors are found, we will not hesitate to set aside such factual findings of these agencies.
Here, Article 281 of the Labor Code is pertinent. It provides that: ART. 281. Probationary Employment. -- Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee. As Article 281 clearly states, a probationary employee can be legally terminated either: (1) for a just cause; or (2) when the employee fails to qualify as a regular employee in accordance with the reasonable standards made known to him by the employer at the start of the employment. [10] Nonetheless, the power of the employer to terminate an employee on probation is not without limitations. First, this power must be exercised in accordance with the specific requirements of the contract. Second, the dissatisfaction on the part of the employer must be real and in good faith, not feigned so as to circumvent the contract or the law; and third, there must be no unlawful discrimination in the dismissal. In termination cases, the burden of proving just or valid cause for dismissing an employee rests on the employer. [11]
Here, the petitioner did not present proof that the respondent was evaluated from November 21, 1998 to February 21, 1999, nor that his probationary employment was validly extended.
The petitioner alleged that at the end of the respondents three-month probationary employment, Rauber recommended that the period be extended for two months since respondent Gatbonton was not yet ready for regular employment. [12] The petitioner presented a Personnel Action Form [13] containing the recommendation. We observed, however, that this document was prepared on March 31, 1999, the end of the 4 th month of the respondents employment. In fact, the recommended action was termination of probationary employment effective April 9, 1999, and not extension of probation period. [14] Upon appeal to the NLRC, the petitioner presented another Personnel Action Form [15] prepared on March 2, 1999, showing that the respondents probationary employment was extended for two months effective February 23, 1999.
The Personnel Action Form dated March 2, 1999, contained the following remarks: subject to undergo extension of probation for two (2) months as per attached memo. Yet, we find this document inconclusive. First, the action form did not contain the results of the respondents evaluation. Without the evaluation, the action form had no basis. Second, the action form spoke of an attached memo which the petitioner identified as Raubers Memorandum, recommending the extension of the respondents probation period for two months. Again, the supposed Memorandum was not presented. Third, the action form did not bear the respondents signature.
In the absence of any evaluation or valid extension, we cannot conclude that respondent failed to meet the standards of performance set by the hotel for a chief steward. At the expiration of the three-month period, Gatbonton had become a regular employee. It is an elementary rule in the law on labor relations that a probationary employee engaged to work beyond the probationary period of six months, as provided under Article 281 of the Labor Code, or for any length of time set forth by the employer (in this case, three months), shall be considered a regular employee. [16] This is clear in the last sentence of Article 281. Any circumvention of this provision would put to naught the States avowed protection for labor.
Since respondent was not dismissed for a just or authorized cause, his dismissal was illegal, and he is entitled to reinstatement without loss of seniority rights, and other privileges as well as to full backwages, inclusive of allowances, and to other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.
The petitioner presented copies of Check No. 0000200953 [17] and the corresponding voucher [18] in the amount of P6,095.19, to prove that the respondent had been paid his remaining unpaid salaries on May 26, 1999. We have no reason to disbelieve said payment, since the respondent failed to refute this matter before the Court of Appeals and before us.
WHEREFORE, the instant petition for review is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 73296, which reversed the Resolution dated September 24, 2001 of the National Labor Relations Commission, is AFFIRMED WITH the MODIFICATION that the order for payment of unpaid salaries is DELETED.
SO ORDERED.
YOLANDA MERCADO VS AMA COMPUTER APRIL 13, 2010 THE PETITION
The petitioners cite the following errors in the CA decision: [21]
1) The CA gravely erred in reversing the LA and NLRC illegal dismissal rulings; and 2) The CA gravely erred in not ordering their reinstatement with full, backwages.
The petitioners submit that the CA should not have disturbed the findings of the LA and the NLRC that they were illegally dismissed; instead, the CA should have accorded great respect, if not finality, to the findings of these specialized bodies as these findings were supported by evidence on record. Citing our ruling in Soriano v. National Labor Relations Commission, [22] the petitioners contend that in certiorari proceedings under Rule 65 of the Rules of Court, the CA does not assess and weigh the sufficiency of evidence upon which the Labor Arbiter and the NLRC based their conclusions. They submit that the CA erred when it substituted its judgment for that of the Labor Arbiter and the NLRC who were the triers of facts who had the opportunity to review the evidence extensively.
On the merits, the petitioners argue that the applicable law on probationary employment, as explained by the LA, is Article 281 of the Labor Code which mandates a period of six (6) months as the maximum duration of the probationary period unless there is a stipulation to the contrary; that the CA should not have disturbed the LAs conclusion that the AMACC failed to support its allegation that they did not qualify under the new guidelines adopted for the school year 2000-2001; and that they were illegally dismissed; their employment was terminated based on standards that were not made known to them at the time of their engagement. On the whole, the petitioners argue that the LA and the NLRC committed no grave abuse of discretion that the CA can validly cite.
THE CASE FOR THE RESPONDENT
In their Comment, [23] AMACC notes that the petitioners raised no substantial argument in support of their petition and that the CA correctly found that the petitioners were hired on a non-tenured basis and for a fixed or predetermined term. AMACC stresses that the CA was correct in concluding that no actual dismissal transpired; it simply did not renew the petitioners respective employment contracts because of their poor performance and failure to satisfy the schools standards.
AMACC also asserts that the petitioners knew very well that the applicable standards would be revised and updated from time to time given the nature of the teaching profession. The petitioners also knew at the time of their engagement that they must comply with the schools regularization policies as stated in the Faculty Manual. Specifically, they must obtain a passing rating on the Performance Appraisal for Teachers (PAST) the primary instrument to measure the performance of faculty members.
Since the petitioners were not actually dismissed, AMACC submits that the CA correctly ruled that they are not entitled to reinstatement, full backwages and attorneys fees.
THE COURTS RULING
We find the petition meritorious.
The CAs Review of Factual Findings under Rule 65
We agree with the petitioners that, as a rule in certiorari proceedings under Rule 65 of the Rules of Court, the CA does not assess and weigh each piece of evidence introduced in the case. The CA only examines the factual findings of the NLRC to determine whether or not the conclusions are supported by substantial evidence whose absence points to grave abuse of discretion amounting to lack or excess of jurisdiction. [24] In the recent case of Protacio v. Laya Mananghaya & Co., [25] we emphasized that:
As a general rule, in certiorari proceedings under Rule 65 of the Rules of Court, the appellate court does not assess and weigh the sufficiency of evidence upon which the Labor Arbiter and the NLRC based their conclusion. The query in this proceeding is limited to the determination of whether or not the NLRC acted without or in excess of its jurisdiction or with grave abuse of discretion in rendering its decision. However, as an exception, the appellate court may examine and measure the factual findings of the NLRC if the same are not supported by substantial evidence. The Court has not hesitated to affirm the appellate courts reversals of the decisions of labor tribunals if they are not supported by substantial evidence. [Emphasis supplied]
As discussed below, our review of the records and of the CA decision shows that the CA erred in recognizing that grave abuse of discretion attended the NLRCs conclusion that the petitioners were illegally dismissed. Consistent with this conclusion, the evidence on record show that AMACC failed to discharge its burden of proving by substantial evidence the just cause for the non-renewal of the petitioners contracts.
In Montoya v. Transmed Manila Corporation, [26] we laid down our basic approach in the review of Rule 65 decisions of the CA in labor cases, as follows:
In a Rule 45 review, we consider the correctness of the assailed CA decision, in contrast with the review for jurisdictional error that we undertake under Rule 65. Furthermore, Rule 45 limits us to the review of questions of law raised against the assailed CA decision. In ruling for legal correctness, we have to view the CA decision in the same context that the petition for certiorari it ruled upon was presented to it; we have to examine the CA decision from the prism of whether it correctly determined the presence or absence of grave abuse of discretion in the NLRC decision before it, not on the basis of whether the NLRC decision on the merits of the case was correct. In other words, we have to be keenly aware that the CA undertook a Rule 65 review, not a review on appeal, of the NLRC decision challenged before it. This is the approach that should be basic in a Rule 45 review of a CA ruling in a labor case. In question form, the question to ask is: Did the CA correctly determine whether the NLRC committed grave abuse of discretion in ruling on the case?
Following this approach, our task is to determine whether the CA correctly found that the NLRC committed grave abuse of discretion in ruling that the petitioners were illegally dismissed.
Legal Environment in the Employment of Teachers
a. Rule on Employment on Probationary Status
A reality we have to face in the consideration of employment on probationary status of teaching personnel is that they are not governed purely by the Labor Code. The Labor Code is supplemented with respect to the period of probation by special rules found in the Manual of Regulations for Private Schools. [27] On the matter of probationary period, Section 92 of these regulations provides:
Section 92. Probationary Period. Subject in all instances to compliance with the Department and school requirements, the probationary period for academic personnel shall not be more than three (3) consecutive years of satisfactory service for those in the elementary and secondary levels, six (6) consecutive regular semesters of satisfactory service for those in the tertiary level, and nine (9) consecutive trimesters of satisfactory service for those in the tertiary level where collegiate courses are offered on a trimester basis. [Emphasis supplied]
The CA pointed this out in its decision (as the NLRC also did), and we confirm the correctness of this conclusion. Other than on the period, the following quoted portion of Article 281 of the Labor Code still fully applies:
x x x The services of an employee who has been engaged on a probationary basis may be terminated for a just cause when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee. [Emphasis supplied]
b. Fixed-period Employment
The use of employment for fixed periods during the teachers probationary period is likewise an accepted practice in the teaching profession. We mentioned this in passing in Magis Young Achievers Learning Center v. Adelaida P. Manalo, [28] albeit a case that involved elementary, not tertiary, education, and hence spoke of a school year rather than a semester or a trimester. We noted in this case:
The common practice is for the employer and the teacher to enter into a contract, effective for one school year. At the end of the school year, the employer has the option not to renew the contract, particularly considering the teachers performance. If the contract is not renewed, the employment relationship terminates. If the contract is renewed, usually for another school year, the probationary employment continues. Again, at the end of that period, the parties may opt to renew or not to renew the contract. If renewed, this second renewal of the contract for another school year would then be the last year since it would be the third school year of probationary employment. At the end of this third year, the employer may now decide whether to extend a permanent appointment to the employee, primarily on the basis of the employee having met the reasonable standards of competence and efficiency set by the employer. For the entire duration of this three-year period, the teacher remains under probation. Upon the expiration of his contract of employment, being simply on probation, he cannot automatically claim security of tenure and compel the employer to renew his employment contract. It is when the yearly contract is renewed for the third time that Section 93 of the Manual becomes operative, and the teacher then is entitled to regular or permanent employment status.
It is important that the contract of probationary employment specify the period or term of its effectivity. The failure to stipulate its precise duration could lead to the inference that the contract is binding for the full three-year probationary period.
We have long settled the validity of a fixed-term contract in the case Brent School, Inc. v. Zamora [29] that AMACC cited. Significantly, Brent happened in a school setting. Care should be taken, however, in reading Brent in the context of this case as Brent did not involve any probationary employment issue; it dealt purely and simply with the validity of a fixed-term employment under the terms of the Labor Code, then newly issued and which does not expressly contain a provision on fixed-term employment.
c. Academic and Management Prerogative
Last but not the least factor in the academic world, is that a school enjoys academic freedom a guarantee that enjoys protection from the Constitution no less. Section 5(2) Article XIV of the Constitution guarantees all institutions of higher learning academic freedom. [30]
The institutional academic freedom includes the right of the school or college to decide and adopt its aims and objectives, and to determine how these objections can best be attained, free from outside coercion or interference, save possibly when the overriding public welfare calls for some restraint. The essential freedoms subsumed in the term academic freedom encompass the freedom of the school or college to determine for itself: (1) who may teach; (2) who may be taught; (3) how lessons shall be taught; and (4) who may be admitted to study. [31]
AMACCs right to academic freedom is particularly important in the present case, because of the new screening guidelines for AMACC faculty put in place for the school year 2000-2001. We agree with the CA that AMACC has the inherent right to establish high standards of competency and efficiency for its faculty members in order to achieve and maintain academic excellence. The schools prerogative to provide standards for its teachers and to determine whether or not these standards have been met is in accordance with academic freedom that gives the educational institution the right to choose who should teach. [32] InPea v. National Labor Relations Commission, [33] we emphasized:
It is the prerogative of the school to set high standards of efficiency for its teachers since quality education is a mandate of the Constitution.
As long as the standards fixed are reasonable and not arbitrary, courts are not at liberty to set them aside. Schools cannot be required to adopt standards which barely satisfy criteria set for government recognition.
The same academic freedom grants the school the autonomy to decide for itself the terms and conditions for hiring its teacher, subject of course to the overarching limitations under the Labor Code. Academic freedom, too, is not the only legal basis for AMACCs issuance of screening guidelines. The authority to hire is likewise covered and protected by its management prerogative the right of an employer to regulate all aspects of employment, such as hiring, the freedom to prescribe work assignments, working methods, process to be followed, regulation regarding transfer of employees, supervision of their work, lay-off and discipline, and dismissal and recall of workers. [34] Thus, AMACC has every right to determine for itself that it shall use fixed-term employment contracts as its medium for hiring its teachers. It also acted within the terms of the Manual of Regulations for Private Schools when it recognized the petitioners to be merely on probationary status up to a maximum of nine trimesters.
The Conflict: Probationary Status and Fixed-term Employment
The existence of the term-to-term contracts covering the petitioners employment is not disputed, nor is it disputed that they were on probationary status not permanent or regular status from the time they were employed on May 25, 1998 and until the expiration of their Teaching Contracts on September 7, 2000. As the CA correctly found, their teaching stints only covered a period of at least seven (7) consecutive trimesters or two (2) years and three (3) months of service. This case, however, brings to the fore the essential question of which, between the two factors affecting employment, should prevail given AMACCs position that the teachers contracts expired and it had the right not to renew them. In other words, should the teachers probationary status be disregarded simply because the contracts were fixed-term?
The provision on employment on probationary status under the Labor Code [35] is a primary example of the fine balancing of interests between labor and management that the Code has institutionalized pursuant to the underlying intent of the Constitution. [36]
On the one hand, employment on probationary status affords management the chance to fully scrutinize the true worth of hired personnel before the full force of the security of tenure guarantee of the Constitution comes into play. [37] Based on the standards set at the start of the probationary period, management is given the widest opportunity during the probationary period to reject hirees who fail to meet its own adopted but reasonable standards. [38] These standards, together with the just [39] and authorized causes [40] for termination of employment the Labor Code expressly provides, are the grounds available to terminate the employment of a teacher on probationary status. For example, the school may impose reasonably stricter attendance or report compliance records on teachers on probation, and reject a probationary teacher for failing in this regard, although the same attendance or compliance record may not be required for a teacher already on permanent status. At the same time, the same just and authorizes causes for dismissal under the Labor Code apply to probationary teachers, so that they may be the first to be laid-off if the school does not have enough students for a given semester or trimester. Termination of employment on this basis is an authorized cause under the Labor Code. [41]
Labor, for its part, is given the protection during the probationary period of knowing the company standards the new hires have to meet during the probationary period, and to be judged on the basis of these standards, aside from the usual standards applicable to employees after they achieve permanent status. Under the terms of the Labor Code, these standards should be made known to the teachers on probationary status at the start of their probationary period, or at the very least under the circumstances of the present case, at the start of the semester or the trimester during which the probationary standards are to be applied. Of critical importance in invoking a failure to meet the probationary standards, is that the school should show as a matter of due process how these standards have been applied. This is effectively the second notice in a dismissal situation that the law requires as a due process guarantee supporting the security of tenure provision, [42] and is in furtherance, too, of the basic rule in employee dismissal that the employer carries the burden of justifying a dismissal. [43] These rules ensure compliance with the limited security of tenure guarantee the law extends to probationary employees. [44]
When fixed-term employment is brought into play under the above probationary period rules, the situation as in the present case may at first blush look muddled as fixed-term employment is in itself a valid employment mode under Philippine law and jurisprudence. [45] The conflict, however, is more apparent than real when the respective nature of fixed-term employment and of employment on probationary status are closely examined.
The fixed-term character of employment essentially refers to the period agreed upon between the employer and the employee; employment exists only for the duration of the term and ends on its own when the term expires. In a sense, employment on probationary status also refers to a period because of the technical meaning probation carries in Philippine labor law a maximum period of six months, or in the academe, a period of three years for those engaged in teaching jobs. Their similarity ends there, however, because of the overriding meaning that being on probation connotes, i.e., a process of testing and observing the character or abilities of a person who is new to a role or job. [46]
Understood in the above sense, the essentially protective character of probationary status for management can readily be appreciated. But this same protective character gives rise to the countervailing but equally protective rule that the probationary period can only last for a specific maximum period and under reasonable, well-laid and properly communicated standards. Otherwise stated, within the period of the probation, any employer move based on the probationary standards and affecting the continuity of the employment must strictly conform to the probationary rules.
Under the given facts where the school year is divided into trimesters, the school apparently utilizes its fixed-term contracts as a convenient arrangement dictated by the trimestral system and not because the workplace parties really intended to limit the period of their relationship to any fixed term and to finish this relationship at the end of that term. If we pierce the veil, so to speak, of the parties so-called fixed-term employment contracts, what undeniably comes out at the core is a fixed-term contract conveniently used by the school to define and regulate its relations with its teachers during their probationary period.
To be sure, nothing is illegitimate in defining the school-teacher relationship in this manner. The school, however, cannot forget that its system of fixed-term contract is a system that operates during the probationary period and for this reason is subject to the terms of Article 281 of the Labor Code. Unless this reconciliation is made, the requirements of this Article on probationary status would be fully negated as the school may freely choose not to renew contracts simply because their terms have expired. The inevitable effect of course is to wreck the scheme that the Constitution and the Labor Code established to balance relationships between labor and management.
Given the clear constitutional and statutory intents, we cannot but conclude that in a situation where the probationary status overlaps with a fixed- term contract not specifically used for the fixed term it offers, Article 281 should assume primacy and the fixed-period character of the contract must give way. This conclusion is immeasurably strengthened by the petitioners and the AMACCs hardly concealed expectation that the employment on probation could lead to permanent status, and that the contracts are renewable unless the petitioners fail to pass the schools standards.
To highlight what we mean by a fixed-term contract specifically used for the fixed term it offers, a replacement teacher, for example, may be contracted for a period of one year to temporarily take the place of a permanent teacher on a one- year study leave. The expiration of the replacement teachers contracted term, under the circumstances, leads to no probationary status implications as she was never employed on probationary basis; her employment is for a specific purpose with particular focus on the term and with every intent to end her teaching relationship with the school upon expiration of this term.
If the school were to apply the probationary standards (as in fact it says it did in the present case), these standards must not only be reasonable but must have also been communicated to the teachers at the start of the probationary period, or at the very least, at the start of the period when they were to be applied. These terms, in addition to those expressly provided by the Labor Code, would serve as the just cause for the termination of the probationary contract. As explained above, the details of this finding of just cause must be communicated to the affected teachers as a matter of due process.
AMACC, by its submissions, admits that it did not renew the petitioners contracts because they failed to pass the Performance Appraisal System for Teachers (PAST) and other requirements for regularization that the school undertakes to maintain its high academic standards. [47] The evidence is unclear on the exact terms of the standards, although the school also admits that these were standards under the Guidelines on the Implementation of AMACC Faculty Plantilla put in place at the start of school year 2000-2001.
While we can grant that the standards were duly communicated to the petitioners and could be applied beginning the 1 st trimester of the school year 2000-2001, glaring and very basic gaps in the schools evidence still exist. The exact terms of the standards were never introduced as evidence; neither does the evidence show how these standards were applied to the petitioners. [48] Without these pieces of evidence (effectively, the finding of just cause for the non-renewal of the petitioners contracts), we have nothing to consider and pass upon as valid or invalid for each of the petitioners. Inevitably, the non-renewal (or effectively, the termination of employment of employees on probationary status) lacks the supporting finding of just cause that the law requires and, hence, is illegal.
In this light, the CA decision should be reversed. Thus, the LAs decision, affirmed as to the results by the NLRC, should stand as the decision to be enforced, appropriately re-computed to consider the period of appeal and review of the case up to our level.
Given the period that has lapsed and the inevitable change of circumstances that must have taken place in the interim in the academic world and at AMACC, which changes inevitably affect current school operations, we hold that - in lieu of reinstatement - the petitioners should be paid separation pay computed on a trimestral basis from the time of separation from service up to the end of the complete trimester preceding the finality of this Decision. [49] The separation pay shall be in addition to the other awards, properly recomputed, that the LA originally decreed.
WHEREFORE, premises considered, we hereby GRANT the petition, and, consequently, REVERSE and SET ASIDE the Decision of the Court of Appeals dated November 29, 2007 and its Resolution dated June 20, 2008 in CA-G.R. SP No. 96599. The Labor Arbiters decision of March 15, 2002, subsequently affirmed as to the results by the National Labor Relations Commission, stands and should be enforced with appropriate re-computation to take into account the date of the finality of this Decision.
In lieu of reinstatement, AMA Computer College-Paraaque City, Inc. is hereby DIRECTED to pay separation pay computed on a trimestral basis from the time of separation from service up to the end of the complete trimester preceding the finality of this Decision. For greater certainty, the petitioners are entitled to: (a) backwages and 13 th month pay computed from September 7, 2000 (the date AMA Computer College-Paraaque City, Inc. illegally dismissed the petitioners) up to the finality of this Decision; (b) monthly honoraria (if applicable) computed from September 7, 2000 (the time of separation from service) up to the finality of this Decision; and (c) separation pay on a trimestral basis from September 7, 2000 (the time of separation from service) up to the end of the complete trimester preceding the finality of this Decision.
The labor arbiter is hereby ORDERED to make another re-computation according to the above directives. No costs.
SO ORDERED. ONG AND JOHNSON VS. CA NOV. 16, 2011 Hence, the petitioners interpose the present petition before this Court anchored on the following
GROUNDS
(1) THE COURT OF APPEALS ERRED IN UPHOLDING THE DECISION OF THE LABOR ARBITER AND AWARDING BACK WAGES AND OTHER MONETARY CLAIMS IN FAVOR OF THE PRIVATE RESPONDENT.
(2) THE COURT OF APPEALS ERRED IN HOLDING THAT HEREIN PRIVATE RESPONDENT BECAME A REGULAR EMPLOYEE EFFECTIVE DAY ONE OF HER EMPLOYMENT WITH PETITIONER.
(3) THE COURT OF APPEALS GRAVELY ERRED IN DISREGARDING THE PROBATIONARY PERIOD OF EMPLOYMENT OF PRIVATE RESPONDENT ENDING [ON] FEBRUARY 28, 2007. [11]
The core issue to be resolved is whether the termination of Sy, a probationary employee, was valid or not.
The petitioners pray for the reversal of the CA decision arguing that Sy was a probationary employee with a limited tenure of six months subject to regularization conditioned on her satisfactory performance. They insist that they substantially complied with the requirements of the law having apprised Sy of her status as probationary employee. The standard, though not written, was clear that her continued employment would depend on her over-all performance of the assigned tasks, and that the same was made known to her since day one of her employment. According to the petitioners, reasonable standard of employment does not require written evaluation of Sys function. It is enough that she was informed of her duties and that her performance was later rated below satisfactory by the Management.
Citing Alcira v. NLRC [12] and Colegio San Agustin v. NLRC, [13] the petitioners further argue that Sys constitutional protection to security of tenure ended on the last day of her probationary tenure or on February 28, 2007. It is unfair to compel regularization of an employee who was found by the Management to be unfit for the job. As they were not under obligation to extend Sys employment, there was no illegal dismissal, but merely an expiration of the probationary contract. As such, she was not entitled to any benefits like separation pay or backwages.
Sy counters that she was illegally terminated from service and insists that the petitioners cannot invoke her failure to qualify as she was not informed of the standards or criteria which she should have met for regular employment. Moreover, no proof was shown as to her alleged poor work performance. She was unceremoniously terminated to prevent her from becoming a regular employee and be entitled to the benefits as such.
The Court finds the petition devoid of merit.
The pertinent law governing the present case is Article 281 of the Labor Code which provides as follows:
Art. 281. Probationary employment. Probationary employment shall not exceed six months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged in a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee.(Underscoring supplied)
There is probationary employment where the employee upon his engagement is made to undergo a trial period during which the employer determines his fitness to qualify for regular employment based on reasonable standards made known to him at the time of engagement. [14] The probationary employment is intended to afford the employer an opportunity to observe the fitness of a probationary employee while at work, and to ascertain whether he will become an efficient and productive employee. While the employer observes the fitness, propriety and efficiency of a probationer to ascertain whether he is qualified for permanent employment, the probationer, on the other hand, seeks to prove to the employer that he has the qualifications to meet the reasonable standards for permanent employment. Thus, the word probationary, as used to describe the period of employment, implies the purpose of the term or period, not its length. [15]
On the basis of the aforequoted provisions and definition, there is no dispute that Sys employment with Tamsons on September 1, 2006 was probationary in character. As a probationary employee, her employment status was only temporary. Although a probationary or temporary employee with a limited tenure, she was still entitled to a security of tenure.
It is settled that even if probationary employees do not enjoy permanent status, they are accorded the constitutional protection of security of tenure. This means they may only be terminated for a just cause or when they otherwise fail to qualify as regular employees in accordance with reasonable standards made known to them by the employer at the time of their engagement. [16] Consistently, in Mercado v. AMA Computer College-Paranaque City, Inc., [17] this Court clearly stressed that: Labor, for its part, is given the protection during the probationary period of knowing the company standards the new hires have to meet during the probationary period, and to be judged on the basis of these standards, aside from the usual standards applicable to employees after they achieve permanent status. Under the terms of the Labor Code, these standards should be made known to the [employees] on probationary status at the start of their probationary period, or xxx during which the probationary standards are to be applied. Of critical importance in invoking a failure to meet the probationary standards, is that the [employer] should show as a matter of due process how these standards have been applied. This is effectively the second notice in a dismissal situation that the law requires as a due process guarantee supporting the security of tenure provision, and is in furtherance, too, of the basic rule in employee dismissal that the employer carries the burden of justifying a dismissal. These rules ensure compliance with the limited security of tenure guarantee the law extends to probationary employees. [18] [Emphases supplied]
In this case, the justification given by the petitioners for Sys dismissal was her alleged failure to qualify by the companys standard. Other than the general allegation that said standards were made known to her at the time of her employment, however, no evidence, documentary or otherwise, was presented to substantiate the same. Neither was there any performance evaluation presented to prove that indeed hers was unsatisfactory. Thus, this Court is in full accord with the ruling of the CA when it wrote that:
Private respondents were remiss in showing that petitioner failed to qualify as a regular employee. Except for their allegations that she was apprised of her status as probationary and that she would be accorded regular status once she meets their standards, no evidence was presented of these standards and that petitioner had been apprised of them at the time she was hired as a probationary employee. Neither was it shown that petitioner failed to meet such standards.
Petitioner should have been informed as to the basis of private respondents decision not to extend her regular or permanent employment. This case is bereft of any proof like an evaluation or assessment report which would support private respondents claim that she failed to comply with the standards in order to become a regular employee.
One of the conditions before an employer can terminate a probationary employee is dissatisfaction on the part of the employer which must be real and in good faith, not feigned so as to circumvent the contract or the law. In the case at bar, absent any proof showing that the work performance of petitioner was unsatisfactory, We cannot conclude that petitioner failed to meet the standards of performance set by private respondents. This absence of proof, in fact, leads Us to infer that their dissatisfaction with her work performance was contrived so as not to regularize her employment. [19]
For failure of the petitioners to support their claim of unsatisfactory performance by Sy, this Court shares the view of the CA that Sys employment was unjustly terminated to prevent her from acquiring a regular status in circumvention of the law on security of tenure. As the Court previously stated, this is a common and convenient practice of unscrupulous employers to circumvent the law on security of tenure. Security of tenure, which is a right of paramount value guaranteed by the Constitution, should not be denied to the workers by such a stratagem. The Court can not permit such a subterfuge, if it is to be true to the law and social justice. [20]
In its attempt to justify Sys dismissal, the petitioners relied heavily on the case of Alcira v. NLRC [21] where the Court stressed that the constitutional protection ends on the expiration of the probationary period when the parties are free to either renew or terminate their contract of employment.
Indeed, the Court recognizes the employers power to terminate as an exercise of management prerogative. The petitioners, however, must be reminded that such right is not without limitations. In this connection, it is well to quote the ruling of the Court in the case of Dusit Hotel Nikko v. Gatbonton, [22] where it was written:
As Article 281 clearly states, a probationary employee can be legally terminated either: (1) for a just cause; or (2) when the employee fails to qualify as a regular employee in accordance with the reasonable standards made known to him by the employer at the start of the employment. Nonetheless, the power of the employer to terminate an employee on probation is not without limitations. First, this power must be exercised in accordance with the specific requirements of the contract. Second, the dissatisfaction on the part of the employer must be real and in good faith, not feigned so as to circumvent the contract or the law; and third, there must be no unlawful discrimination in the dismissal. In termination cases, the burden of proving just or valid cause for dismissing an employee rests on the employer. [23] [Emphases supplied]
Here, the petitioners failed to convey to Sy the standards upon which she should measure up to be considered for regularization and how the standards had been applied in her case. As correctly pointed out by Sy, the dissatisfaction on the part of the petitioners was at best self-serving and dubious as they could not present concrete and competent evidence establishing her alleged incompetence. Failure on the part of the petitioners to discharge the burden of proof is indicative that the dismissal was not justified.
The law is clear that in all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at that time, he shall be deemed a regular employee. [24] The standards under which she would qualify as a regular employee not having been communicated to her at the start of her probationary period, Sy qualified as a regular employee. As held by this Court in the very recent case of Hacienda Primera Development Corporation v. Villegas,: [25]
In this case, petitioner Hacienda fails to specify the reasonable standards by which respondents alleged poor performance was evaluated, much less to prove that such standards were made known to him at the start of his employment.
Thus, he is deemed to have been hired from day one as a regular employee. Due process dictates that an employee be apprised beforehand of the condition of his employment and of the terms of advancement therein. [Emphasis supplied]
Even on the assumption that Sy indeed failed to meet the standards set by them and made known to the former at the time of her engagement, still, the termination was flawed for failure to give the required notice to Sy. Section 2, Rule I, Book VI of the Implementing Rules provides:
Section 2. Security of tenure. (a) In cases of regular employment, the employer shall not terminate the services of an employee except for just or authorized causes as provided by law, and subject to the requirements of due process.
(b) The foregoing shall also apply in cases of probationary employment; Provided however, that in such cases, termination of employment due to failure of the employee to qualify in accordance with the standards of the employer made known to the former at the time of engagement may also be a ground for termination of employment.
xxx
(d) In all cases of termination of employment, the following standards of due process shall be substantially observed:
xxx
If the termination is brought about by the completion of a contract or phase thereof, or by failure of an employee to meet the standards of the employer in the case of probationary employment, it shall be sufficient that a written notice is served the employee, within a reasonable time from the effective date of termination. [Emphasis and Underscoring supplied]
In this case, the petitioners failed to comply with the requirement of a written notice. Notably, Sy was merely verbally informed that her employment would be terminated on February 28, 2007, as admitted by the petitioners. [26] Considering that the petitioners failed to observe due process in dismissing her, the dismissal had no legal sanction. It bears stressing that a workers employment is property in the constitutional sense. [27]
Being a regular employee whose termination was illegal, Sy is entitled to the twin relief of reinstatement and backwages granted by the Labor Code. Article 279 provides that an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges, to her full backwages, inclusive of allowances, and to her other benefits or their monetary equivalent computed from the time her compensation was withheld from her up to the time of actual reinstatement. Likewise, having been compelled to come to court and to incur expenses to protect her rights and interests, the award of attorneys fees is in order. [28]
WHEREFORE, the petition is DENIED.
SO ORDERED.
III. SECURITY OF TENURE 1. SCOPE PLDT VS TOLENTINO SEPT. 21, 2004 The petition is without merit. PLDTs basis for respondents dismissal was not enough to defeat respondents security of tenure. There is no dispute over the fact that respondent was a managerial employee and therefore loss of trust and confidence was a ground for his valid dismissal. The mere existence of a basis for the loss of trust and confidence justifies the dismissal of the employee 7 because: [w]hen an employee accepts a promotion to a managerial position or to an office requiring full trust and confidence, she gives up some of the rigid guaranties available to ordinary workers. Infractions which if committed by others would be overlooked or condoned or penalties mitigated may be visited with more severe disciplinary action. A companys resort to acts of self-defense would be more easily justified. 8
Proof beyond reasonable doubt is not required provided there is a valid reason for the loss of trust and confidence, such as when the employer has a reasonable ground to believe that the managerial employee concerned is responsible for the purported misconduct and the nature of his participation renders him unworthy of the trust and confidence demanded by his position. 9
However, the right of the management to dismiss must be balanced against the managerial employees right to security of tenure which is not one of the guaranties he gives up. This Court has consistently ruled that managerial employees enjoy security of tenure and, although the standards for their dismissal are less stringent, the loss of trust and confidence must be substantial and founded on clearly established facts sufficient to warrant the managerial employees separation from the company. 10 Substantial evidence is of critical importance and the burden rests on the employer to prove it. 11 Due to its subjective nature, it can easily be concocted by an abusive employer and used as a subterfuge for causes which are improper, illegal or unjustified. 12
In the case at bar, this Court agrees with the Court of Appeals that the petitioners dismissal was not founded onclearly established facts sufficient to warrant separation from employment. The factual findings of the court a quoon the issue of whether there was sufficient basis for petitioner PLDT to dismiss respondent Tolentino are binding on this Court. In the exercise of the power of review, the factual determinations of the Court of Appeals are generally conclusive and binding on the Supreme Court. 13 And they carry even more weight when they affirm those of the trial court or labor arbiter (in this case). 14 After a thorough review of the records, we also came to the same factual conclusion as the Court of Appeals. The evidence relied upon by petitioner PLDT de Riveras sworn statement and Donatos affidavit does not, in our view, establish respondent Tolentinos complicity in the "internal arrangement" engineered by his subordinate de Rivera. We quote the labor arbiters incisive observation: Undoubtedly, when respondents received the raw information regarding complainants involvement in the anomalous transaction, there existed a plethora of possibilities. But we do not dwell on possibilities, suspicion and speculation. We rule based on hard facts and solid evidence. Thus, the dismissal of the complainant cannot justifiably be sustained since the findings in this case and the investigation of respondent Company failed to establish either complicity or culpability on the part of complainant. While dishonesty of an employee is not to be condoned, neither should a condemnation on that ground be tolerated based on suspicion spawned by speculative inferences. xxx True, complainant is a possible suspect, after all it was in his division where the said anomalous transaction emanated. However, the records are bereft of any showing that complainant is solely or partly responsible therefore (sic). Suspicion has never been a valid ground for the dismissal of an employee. The employees fate cannot, in justice, be hinged upon conjectures and surmises (quoting San Miguel Corporation v. NLRC, 18 SCRA 281). Evidently, respondents [petitioner PLDT] miserably failed to prove that the dismissal of complainant [respondent Tolentino] was for cause. The respondents evidence, although not required to be of such degree as is required in criminal cases, must be substantial. The same must clearly and convincingly establish the facts upon which loss of trust and confidence in the employee may be made to rest (quoting Plastic Starlite Industries Corp. v. NLRC, 171 SCRA 315). 15
To be sure, respondent Tolentino was remiss in his duties as division manager for failing to discover the "internal arrangement" contrived by his subordinate. However, we disagree that dismissal was the proper sanction for such negligence. It was not commensurate to the lapse committed, especially in the light of respondents unblemished record of long and dedicated service to the company. In Hongkong Shanghai Bank Corporation vs. NLRC, 16 we had occasion to rule that: The penalty imposed must be commensurate to the depravity of the malfeasance, violation or crime being punished. A grave injustice is committed in the name of justice when the penalty imposed is grossly disproportionate to the wrong committed. [D]ismissal is the most severe penalty an employer can impose on an employee. It goes without saying that care must be taken, and due regard given to an employees circumstances, in the application of such punishment. Certainly, a great injustice will result if this Court upholds Tolentinos dismissal. An employee illegally dismissed is entitled to full backwages and reinstatement pursuant to Article 279 of the Labor Code, as amended by RA 6715: An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. Although a managerial employee, respondent should be reinstated to his former position or its equivalent without loss of seniority rights inasmuch as the alleged strained relations between the parties were not adequately proven by petitioner PLDT which had the burden of doing so. In Quijano vs. Mercury Drug Corporation, 17 we ruled that strained relations are a factual issue which must be raised before the labor arbiter for the proper reception of evidence. In this case, petitioner PLDT only raised the issue of strained relations in its appeal from the labor arbiters decision. Thus, no competent evidence exists in the records to support PLDTs assertion that a peaceful working relationship with respondent Tolentino was no longer possible. In fact, the records of the case show that PLDT, through VP Sacdalan, gave respondent Tolentino the option to resign. 18 Such a deferential act by management makes us doubt PLDTs claim that its relations with respondent were "strained." The option to resign would not have been given had animosity existed between them. Furthermore, respondent was dismissed in December, 1995 when petitioner PLDT was still under the Cojuangco group. PLDT has since then passed to the ownership and control of its new owners, the First Pacific group which has absolutely nothing to do so with this controversy. Since there are no strained relations between the new management and respondent, reinstatement is feasible. This ruling is in line with the earlier pronouncement of the Court in Quijano that the strained relations doctrine should be strictly applied so as not to deprive an illegally dismissed employee of his right to reinstatement. To quote it fully: Well-entrenched is the rule that an illegally dismissed employee is entitled to reinstatement as a matter of right. Over the years, however, the case law developed that where reinstatement is not feasible, expedient or practical, as where reinstatement would only exacerbate the tension and strained relations between the parties, or where relationship between the employer and employee has been unduly strained by reason of their irreconcilable differences, particularly where the illegally dismissed employee held a managerial or key position in the company, it would be more prudent to order payment of separation pay instead of reinstatement. Some unscrupulous employers, however, have taken advantage of the overgrowth of this doctrine of "strained relations" by using it as a cover to get rid of its employees and thus defeat their right to job security. To protect labors security of tenure, we emphasize that the doctrine of "strained relations" should be strictly applied so as not to deprive an illegally dismissed employee of his right to reinstatement. Every labor dispute almost always results in "strained relations" and the phrase cannot be given an overarching interpretation, otherwise, an unjustly dismissed employee can never be reinstated. 19
This Court is cognizant of managements right to select the people who will manage its business as well as its right to dismiss them. However, this right cannot be abused. Its exercise must always be tempered with compassion and understanding. As former Chief Justice Enrique Fernando eloquently put it: Where a penalty less severe would suffice, whatever missteps may be committed by labor ought not to be visited with consequence so severe. It is not only because of the laws concern for the workingmen. There is, in addition, his family to consider. Unemployment brings untold hardships and sorrows on those dependent on the wage-earner. The misery and pain attendant on the loss of jobs then could be avoided if there be acceptance of the view that under all the circumstances of a case, the workers should not be deprived of their means of livelihood. Nor is this to condone what has been done by them. 20
To reinstate respondent is not to condone his "misstep" since his participation in the "internal arrangement" was not sufficiently established to warrant his dismissal from PLDT which he served faithfully for 23 years. The moral and exemplary damages awarded by the labor arbiter are hereby deleted since the dismissal of respondent was not attended by bad faith or fraud. Neither did it constitute an act oppressive to labor nor was it done in a manner contrary to morals, good customs or public policy. 21
The Court affirms the award of attorneys fees on the basis of quantum meruit but reduces it to 5% of the total monetary award. Considering the circumstances of this case, the award is reasonable considering the explicit provisions of Article III of the Labor Code and Rule VIII, Section II, Book III of the Omnibus Rules Implementing the Labor Code. 22
WHEREFORE, the petition is hereby denied. The Court of Appeals decision reinstating the labor arbiters decision is AFFIRMED with MODIFICATION. The award of attorneys fees is reduced to 5% of the total amount due respondent Tolentino. The award of moral and exemplary damages is deleted for reasons already explained. SO ORDERED.
FUJITSO COMPUTER PRODUCTS CORPORATION OF THE PHILIPPINES VS. CA APRIL 8, 2005 The Courts Ruling The rule is that factual findings of quasi-judicial agencies such as the NLRC are generally accorded not only respect, but at times, even finality. [28] However, when it can be shown that administrative bodies grossly misappreciated evidence of such nature as to compel a contrary conclusion, the Court will not hesitate to reverse its factual findings. Factual findings of administrative agencies are not infallible and will be set aside if they fail the test of arbitrariness. [29] Thus, in this case where the findings of the CA differ from those of the Labor Arbiter and the NLRC, the Court, in the exercise of its equity jurisdiction, may look into the records of the case and re-examine the questioned findings. As a corollary, this Court is clothed with ample authority to review matters, even if they are not assigned as errors in their appeal, if it finds that their consideration is necessary to arrive at a just decision of the case. [30]
It is settled that to constitute a valid dismissal from employment, two requisites must concur: (a) the dismissal must be for any of the causes provided for in Article 282 [31] of the Labor Code; and (b) the employee must be afforded an opportunity to be heard and defend himself. This means that an employer can terminate the services of an employee for just and valid causes, which must be supported by clear and convincing evidence. It also means that, procedurally, the employee must be given notice, with adequate opportunity to be heard, before he is notified of his actual dismissal for cause. [32]
After a careful and painstaking study of the records of the case, the Court rules that the respondents dismissal from employment was not grounded on any of the just causes enumerated under Article 282 of the Labor Code. The term trust and confidence is restricted to managerial employees. [33] In this case, it is undisputed that respondent De Guzman, as the Facilities Section Manager, occupied a position of responsibility, a position imbued with trust and confidence. Among others, it was his responsibility to see to it that the garbage and scrap materials of petitioner FCPP were adequately managed and disposed of. Thus, respondent De Guzman was entrusted with the duty of handling or taking care of the property of his employer, i.e., the steel purlins which the petitioners allege the respondent prematurely declared as scrap materials. However, to be valid ground for dismissal, loss of trust and confidence must be based on a willful breach of trust and founded on clearly established facts. A breach is willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly, or inadvertently. It must rest on substantial grounds and not on the employers arbitrariness, whims, caprices or suspicion; otherwise, the employee would eternally remain at the mercy of the employer. [34] Loss of confidence must not be indiscriminately used as a shield by the employer against a claim that the dismissal of an employee was arbitrary. And, in order to constitute a just cause for dismissal, the act complained of must be work-related and shows that the employee concerned is unfit to continue working for the employer. [35]
The Court had the occasion to reiterate in Nokom v. National Labor Relations Commission [36] the guidelines for the application of the doctrine of loss of confidence- a. loss of confidence should not be simulated; b. it should not be used as a subterfuge for causes which are improper, illegal or unjustified; c. it may not be arbitrarily asserted in the face of overwhelming evidence to the contrary; and d. it must be genuine, not a mere afterthought to justify earlier action taken in bad faith. [37]
In the case at bar, the grounds relied upon by petitioner FCPP in terminating the employment of respondent De Guzman are contained in the Inter-Office Memorandum dated August 23, 1999 which effectively terminated the latters employment: We have carefully evaluated your case and we are convinced that you have committed grave abuse of authority amounting to serious misconduct and willful breach of trust and confidence. Based on our findings, as supported by strong and competent evidences, and contrary to your explanation per your Letter dated July 26, 1999, the following facts were satisfactorily established: 1. That sometime in the first week of July 1999, you intimated to Mr. Roberto Pumarez, Supervisor of Saros Trucking Services, your intention to buy from Saros the metals which were then piled up and kept inside the Fuji Electric Philippines compound; 2. Thereafter, you ordered the metals to be sold to Saros Trucking Services so that you can buy them (metals) later from Saros at the price of P3.00 per kg., which price you yourself imposed on them; 3. However, it turned out later some pieces of metals which you have earlier declared as scraps and ordered to be sold to Saros were still to be used in the construction of FCPPs Building B. Thus, on July 10, 1999, while Saros employees were initially loading the metals, an Engineer of SNK Philippines, Inc., FCPPs building contractor, stopped them. It was only later after they were prevented from further loading the metals that you checked with the SNK personnel if the metals can already be disposed of as scraps which prove that you have prematurely declared the metals as scrap; 4. That through Mr. [Adrian] Camcaman, your subordinate Technician, you instructed the personnel of Saros to deliver the metals to Sta. Rosa Baptist Church, where you are an active Church member; 5. That, as of this date, you have not yet settled/paid your obligation to Saros. That immediately after you were placed under preventive suspension and to support your explanation that the transaction was between Saros and Sta. Rosa Baptist Church, you caused, through some people representing to be members of the Baptist Church and who are unknown to Saros, to issue a check in favor of Saros. When this failed, another person, representing to be a member of the Baptist church and who appeared for the first time, went to the office of Saros and tried to serve a letter addressed to Mr. Larry Manaig, Saros Proprietor, allegedly inquiring about the total obligation of the Baptist Church to Saros but, which was again not accepted as, in truth and in fact, there was really no transaction between Saros and the Sta. Rosa Baptist Church. All along, it was you and Mr. Camcaman who dealt directly with Saros. 6. That in previous occasions, it was reported by Mr. Manaig that you solicited from him empty drums, pails and corrugated cartons which were all part of those scraps picked up from FCPP and you never paid any of them, a fact which you never denied in your explanation which is tantamount to admission. Based on the foregoing, it is our well-discerned view that the transaction was exclusively limited between you and Saros. Except for your self-serving explanation, you failed miserably to present direct evidence that it was the Sta. Rosa Baptist church which bought the subject metals from Saros, as what you want us to believe. At best, your explanation is a mere afterthought desperately concocted to exculpate yourself. As Facilities Manager, a very sensitive and confidential position, the nature of your work demands of you that your actions should not be tainted with any suspicion or impropriety. However, you failed in this regard and abused your position to advance your self-interest. In view of the foregoing, you are hereby terminated from the service, retroactive July 24, 1999, the date you were placed under preventive suspension. Please proceed to the Finance and Accounting Department to clear yourself from any accountability and to claim whatever unpaid salaries and benefits which are still due you as of this date. For your information and guidance. [38]
Based on the foregoing, the Court finds and so holds that indeed, the petitioners reliance on the foregoing facts to justify the dismissal of respondent De Guzman from employment is misplaced. First. The scrap metals, including the steel purlins, were already classified as scrap materials and ready for disposal. No less than the written statements of the witnesses for the petitioners confirm this. SNK Mechanical Supervisor Nat Balayan stated that the 10-wheeler truck was about to load scrap irons, which includes c-[purlins]. Knowing that c-[purlins] could be used for braces of heap-filter box hangers, I immediately informed Mr. Machidori if I would stop the hauling, to which he consented. On the other hand, SNK Engineer Maurice Victoriano stated that when respondent De Guzman called him and inquired whether the scrap materials at the Fuji Electric Warehouse Area could already be disposed of, he (Victoriano) replied that everything was [okay] for disposal considering that this is [FCPPs] scope. The report of Machidori is particularly revealing: I went to Fuji Electric Warehouse last July 10 (rainy day) to check [out] Warehouse situation. I noticed that scrap materials are being carried out by a truck. I met Mr. Adrian Fujitsu Facilities Staff and asked me that they will take out those scrap materials. SNK Staff suggested using those scrap materials for BIF Hepa Box steel supports. So I requested Mr. Adrian [Camcaman] to separate some materials that we want to use and take out [the] others. During our Construction meeting, Facilities explained that they controlled scrap and unpacked materials for disposal. Earlier I thought that taking out those materials are good for maintaining Fuji Electric Warehouse Area. So I requested them to take out those unrecycled materials. [39]
Thus, the Court agrees with the following ratiocination of the appellate court when it denied the petitioners motion for reconsideration of its decision: [T]his Court would like to stress, as borne out by the pleadings submitted by both parties, that the subject scrap metal [purlins] were already in the scrap yard ready for hauling. It was the building contractor and not petitioner Victor de Guzman who determined whether the metals are scrap metals. Hence, the assertion of the private respondents that petitioner Victor de Guzman prematurely declared the metal [purlins] as scrap materials is without basis. [40]
In fine then, the materials at the said warehouse were already considered scrap and ready for disposal. The hauling was stopped by the SNK employees because their superiors felt that pieces of steel purlins could still be used in the construction of a building in the company premises. Thus, Victoriano and Balayan, with the conformity of their superior Machidori, requested that some pieces be left behind for the purpose. Second. No fraud or bad faith could be attributed to respondent De Guzman, as evinced by his readiness to disclose his participation in the transaction between Saros and Sta. Rosa. Third. Respondent De Guzman was never charged with qualified theft as earlier alluded to by the petitioner FCPP in its Inter-Office Memorandum dated August 28, 1999. Fourth. The focal point of the cause of respondent De Guzmans dismissal from employment is his alleged involvement in the purchase of the steel purlins from petitioner FCPPs warehouse. Whether respondent De Guzman was the buyer of the steel purlins or merely facilitated the sale thereof to Sta. Rosa is of no moment. The fact is that as per the Garbage Collection Agreement dated January 15, 1999, the scrap metals in the premises of petitioner FCPP were regularly bought by Saros. Hence, after such scrap materials are weighed, loaded onto a truck and carried out of the company premises, the petitioner FCPP can no longer be considered the owner thereof, and ceases to exercise control over such property. [41] Loss of trust and confidence as a just cause for termination of employment is premised on the fact that the employee concerned is invested with delicate matters, such as the handling or care and protection of the property and assets of the employer. [42] In this case however, Saros, as the new owner of the scrap materials in question, including the steel purlins, was free to contract with anyone as it wished. At most, respondent De Guzman was merely recommending a buyer for such scrap materials, an act which could hardly be considered as deserving of such a harsh penalty as dismissal from employment. What strikes the Court as odd in this case is that petitioner FCPP willingly believed the testimony of third persons, non-employees, rather than the account of its own employee. There has been no allegation that respondent De Guzman had been previously found guilty of any misconduct or had violated established company rules. Moreover, it is difficult to believe that respondent De Guzman would jeopardize his job for something as measly as steel purlins. [43]
The Court thus concludes that respondent De Guzmans actuations do not amount to willful breach of trust and confidence. It bears stressing that in termination cases, the employer bears the onus of proving that the dismissal was for just cause. [44] Indeed, a condemnation of dishonesty and disloyalty cannot arise from suspicions spawned by speculative inferences. [45] Because of its subjective nature, this Court has been very scrutinizing in cases of dismissal based on loss of trust and confidence because the same can easily be concocted by an abusive employer. Thus, when the breach of trust or loss of confidence theorized upon is not borne by clearly established facts, as in this case, such dismissal on the ground of loss of confidence cannot be allowed. [46] Moreover, the fact that one is a managerial employee does not by itself exclude him from the protection of the constitutional guarantee of security of tenure. [47]
The Court likewise rules that the dismissal of respondent Alvarez from employment for gross misconduct was illegal. The Court has had varied rulings in cases involving gross misconduct as a ground for dismissal, depending on the circumstances of each case. In Zenco Sales, Inc. v. National Labor Relations Commission, [48] the Court affirmed the NLRC and the Labor Arbiter in finding the dismissed employee guilty of misfeasance for his failure to closely monitor and control the sales transactions of salesman Chua and malfeasance because he used the respondent corporations properties, equipment and personnel in connection with his personal business of buy and sale of used sacks. The Court ruled that when brought within the ambit of Article 282 of the Labor Code, it constitutes gross neglect in the performance of duty and serious misconduct resulting to loss of trust and confidence. [49] In Philippine National Construction Corporation v. NLRC, [50] the dismissed employees were caught in the act of accepting a bribe in the form of cash and a dog from a motorist who was suspected of illegally transporting dogs. The Court held that by yielding to bribery, the said employees violated their very duty to maintain peace and order in the North Luzon Expressway, and to ensure that all tollway rules and regulations were followed. Such act was classified as serious misconduct which warranted the penalty of dismissal from employment. [51] In another case, [52] the Court considered a dismissed faculty members act of exerting influence and pressure to change a failing grade to a passing one and the misrepresentation that a student was his nephew as serious misconduct, and a valid ground for dismissal. However, in the old case of Radio Communications of the Philippines, Inc. v. NLRC, [53] the Court considered the dismissed employees act of hurling invectives at a co-employee as a minor offense. The Court therein ruled that the termination of an employee on account of a minor misconduct is illegal because Article 282 of the Labor Code mentions serious Misconduct as a cause for cessation of employment. [54]
Misconduct has been defined as improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error of judgment. [55] The misconduct to be serious must be of such grave and aggravated character and not merely trivial and unimportant. Such misconduct, however serious, must nevertheless be in connection with the employees work to constitute just cause for his separation [56] . Thus, for misconduct or improper behavior to be a just cause for dismissal, (a) it must be serious; (b) must relate to the performance of the employees duties; and (c) must show that the employee has become unfit to continue working for the employer. [57] Indeed, an employer may not be compelled to continue to employ such person whose continuance in the service would be patently inimical to his employers interest. [58]
In this case, the Court finds that respondent Alvarezs act of sending an e- mail message as an expression of sympathy for the plight of a superior can hardly be characterized as serious misconduct as to merit the penalty of dismissal. This can be gleaned from a perusal of the e-mail message itself, to wit: Question: Where is Mr. De Guzman, Facilities Manager? Answer: He was framed-up by Saros Trucking (FCPP garbage hauler) and [accused] of manipulating scrap metal which is not true since the church buyer and Saros agreed for a fee of P3.00/kg. [where] Saro will profit P0.40/kg plus hauling fee. Question: WHY? Answer: Mr. De Guzman was able to improve the waste management wherein Saro have to pay close to P0.25 million pesos for June scrap alone against Saros previous collection of around P15,000/month only. THE PLOT IS OBVIOUS BUT IS IT JUST TO SUSPEND A GOOD MAN LIKE MR. DE GUZMAN THAN A GARBAGE HAULER WHO DEVILISHLY [PROFITED] FROM FCPP WITHOUT SWEAT? PLS. HELP US [59]
There is no showing that the sending of such e-mail message had any bearing or relation on respondent Alvarezs competence and proficiency in his job. To reiterate, in order to consider it a serious misconduct that would justify dismissal under the law, the act must have been done in relation to the performance of his duties as would show him to be unfit to continue working for his employer. [60] Moreover, while allegations of a frame-up were made against Saros, the e-mail message does not contain a single malicious imputation or charge against petitioner FCPP, or petitioner Espinosa. Instructive on this point is the discussion of the Court in Samson v. National Labor Relations Commission, [61] viz.: The instant case should be distinguished from the previous cases where we held that the use of insulting and offensive language constituted gross misconduct justifying an employees dismissal. In De la Cruz v. NLRC (177 SCRA 626 [1989]), the dismissed employee shouted sayang and pagka-professional mo! and putang ina mo at the company physician when the latter refused to give him a referral slip. In Autobus Workers Union (AWU) v. NLRC (291 SCRA 219 [1998]), the dismissed employee called his supervisor gago ka and taunted the latter by saying bakit, anong gusto mo, tang ina mo. In these cases, the dismissed employees personally subjected their respective superiors to the foregoing verbal abuses. The utter lack of respect for their superiors was patent. In contrast, when petitioner was heard to have uttered the alleged offensive words against respondent companys president and general manager, the latter was not around. In Asian Design and Manufacturing Corporation v. Deputy Minister of Labor (142 SCRA 79 [1986]), the dismissed employee made false and malicious statements against the foreman (his superior) by telling his co-employees: If you dont give a goat to the foreman you will be terminated. If you want to remain in this company, you have to give a goat. The dismissed employee therein likewise posted a notice in the comfort room of the company premises which read: Notice to all Sander Those who want to remain in this company, you must give anything to your foreman. Failure to do so will be terminated Alice 80. In Reynolds Philippine Corporation v. Eslava (137 SCRA 259 [1985]), the dismissed employee circulated several letters to the members of the companys board of directors calling the executive vice-president and general manager a big fool, anti-Filipino and accusing him of mismanagement, inefficiency, lack of planning and foresight, petty favoritism, dictatorial policies, one-man rule, contemptuous attitude to labor, anti-Filipino utterances and activities. In this case, the records do not show that petitioner made any such false and malicious statements against any of his superiors. [62]
In fine, the petitioners failed to show that the respondents acts were sufficient to warrant their dismissal from employment, for loss of trust and confidence on one hand for respondent De Guzman, and for gross misconduct as against respondent Alvarez on the other. To reiterate, it has not been shown that the respondents had been previously found guilty of any infraction of company rules and regulations during the period of their employment. Under Article 279 of the Labor Code, and employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges, and to the payment of his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent, computed from the time his compensation was withheld from him (which, as a rule, is from the time of his illegal dismissal) up to the time of his actual reinstatement. [63] These remedies give life to the workers constitutional right to security of tenure. [64]
The Court is wont to reiterate that while an employer has its own interest to protect, and pursuant thereto, it may terminate a managerial employee for a just cause, such prerogative to dismiss or lay-off an employee must be exercised without abuse of discretion. Its implementation should be tempered with compassion and understanding. The employer should bear in mind that, in the execution of the said prerogative, what is at stake is not only the employees position, but his very livelihood. [65] The Constitution does not condone wrongdoing by the employee; nevertheless, it urges a moderation of the sanction that may be applied to him. [66] Where a penalty less punitive would suffice, whatever missteps may have been committed by the worker ought not be visited with a consequence so severe as dismissal from employment. [67] Indeed, the consistent rule is that if doubts exist between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter. The employer must affirmatively show rationally adequate evidence that the dismissal was for justifiable cause. [68]
WHEREFORE, the instant petition is DENIED. The assailed Decision of the Court of Appeals in CA-G.R. SP No. 71324 and the Resolution dated May 14, 2003 are AFFIRMED. Costs against the petitioners. SO ORDERED.
CONDO SUITE CLUB TRAVEL VS NLRC JAN. 28, 2000 Its motion for reconsideration having been denied, petitioner filed the present petition. It seeks to annul the decision of public respondent ordering the reinstatement of private respondent. However, petitioner does not state the grounds relied upon for said annulment. We note that petitioner imputes neither lack or excess of jurisdiction, nor grave abuse of discretion, on the part of public respondent in rendering the assailed judgment.4-1 Resort to a special civil action for certiorari under Rule 65 of the Rules of Court is limited to the resolution of jurisdictional issues, that is, lack or excess of jurisdiction and grave abuse of discretion amounting to lack of jurisdiction. [7] The respondent acts without jurisdiction if he does not have the legal power to determine the case. There is excess of jurisdiction where the respondent, being clothed with the power to determine the case, oversteps his authority as determined by law. And there is grave abuse of discretion where the respondent acts in a capricious, whimsical, arbitrary or despotic manner in the exercise of his judgment as to be said to be equivalent to lack of jurisdiction. [8] Since petitioner neither assails the jurisdiction of public respondent nor attributes grave abuse of discretion on part of the labor tribunal, this petition must fail. Besides, petitioner did not comply with the rule on certification against forum shopping. The certification in this petition was improperly executed by the external legal counsel of petitioner. For a certification of non-forum shopping must be by the petitioner, or any of the principal parties and not by counsel unless clothed with a special power of attorney to do so. This procedural lapse on the part of petitioner is also a cause for the dismissal of this action. [9]
Even if the abovementioned procedural defects were to be set aside, the petition would still not prosper. Public respondent cannot be faulted for grave abuse of discretion. For we find its assailed judgment supported by factual and legal bases. In its memorandum petitioner raises the following queries: 1. Whether there were just causes to terminate the private respondent? 2. Whether the reinstatement order by the Hon. NLRC is legal and proper? 3. Whether the award of backwages in the amount of P 26, 866.64 by the Hon. NLRC is legal and proper?" [10]
Simply stated, the proper issue now for resolution is whether or not public respondent committed grave abuse of jurisdiction in modifying the decision of the labor arbiter and in ordering the reinstatement of private respondent. The fundamental guarantee of security of tenure dictates that no worker shall be dismissed except for just and authorized cause provided by law, and after due process. The just and authorized causes are enumerated under Articles 282, 283 and 284 of the Labor Code. The due process requirement of notice and hearing is set-out in Article 277 (b) of the said Code. As provided for in the Labor Code: "ART. 282. Termination by employer. An employer may terminate an employment for any of the following causes: xxx (c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative. xxx" But it must be stressed that loss of confidence as a just cause for termination of employment is premised by the fact that an employee concerned holds a position of trust and confidence. This situation holds where a person is entrusted with confidence on delicate matters, such as the custody, handling, or care and protection of the employers property. In the case of supervisory personnel occupying positions of responsibility, this Court has repeatedly held that loss of trust and confidence justifies termination. [11] 4--4 Termination of an employment on this ground does not require proof beyond reasonable doubt of the employees misconduct. It is sufficient that there is some basis for the loss of trust or that the employer has reasonable ground to believe that the employee is responsible for the misconduct which renders him unworthy of the trust and confidence demanded by his position. [12]
The Court, however, has repeatedly stressed that the right of an employer to dismiss employees on account of loss of trust and confidence must not be exercised arbitrarily. Just cause must be shown, so as not to render the employees constitutional right to security of tenure nugatory. Besides, for loss of confidence to be a valid ground for dismissal, the basis thereof must arise from particular proven facts. In other words, this ground must be founded on facts established by the employer who must clearly and convincingly prove by substantial evidence the facts and incidents upon which loss of confidence in the employee may be fairly made to rest; otherwise the dismissal will be rendered illegal. [13]
In the instant case, petitioner failed to prove by ample evidence that private respondent intended to defraud Mr. Hu, as herein explained. Hence, there is no basis for petitioner to claim it lost the trust and confidence it had reposed upon private respondent. Noteworthy are the following circumstances that favor private respondents innocence: First. Mariano admitted in her written statement that she was the one responsible for entering the amount of P2,000.00 in Mr. Hus statement of account. Nowhere in her written statement did she declare that private respondent directed her to make such entry. Further, petitioner failed to refute Marianos declaration that the statement of account which she gave to Mr. Hu reflected only the total charges due up to August 14, 1994, albeit he actually checked out of the hotel on August 15, 1994. This shows that the billing reflected on August 14, 1994 statement was not yet complete as the P2,000.00 outstanding account of Mr. Hu had yet to be incorporated therein.4==411 Second. Landrigan, in his written statement admitted that he approached Mariano and he demanded payment of the transportation fee due him because he was previously hired by Mr. Hus group for two days. Private respondent had nothing to do with Landrigans demand for such payment. Landrigan believed in good faith that Mr. Hu actually owed him P2,000.00 when he served as driver for two days. That Landrigan returned the amount to petitioner did not in any way prove private respondents wrongdoing. Furthermore, the second statutory requirement for a valid dismissal stipulates notice and hearing. Before an employee can be dismissed, the employer must furnish the worker with two notices: (1) notice which apprises the employee of the particular acts or omissions for which dismissal is sought and (2) subsequent notice which informs the employee of the employers decision to dismiss him. The twin requirements of notice and hearing constitute essential elements of the statutory process, and neither of these elements can be eliminated without running afoul of the procedural mandate. [14]
In this case, the evidence on record is devoid of any indication that petitioner complied with the requirements of due process prior to termination, as shown in the following discussion. First. Petitioner did not notify private respondent of the particular acts or omissions for which he was dismissed. The incident report prepared by Mr. Padua is not the notice contemplated by law. Such report merely narrates the complaint aired by Mr. Hu against the front desk personnel. And, nowhere in said incident report did petitioner pinpoint private respondent as the person responsible for overcharging. In fact, it was only upon service of termination order that private respondent realized that the complaint of Mr. Hu was directed at him. Second. Private respondent was not afforded his right to be heard. The hearing affords the employee an opportunity to answer the charge against him and to defend himself personally or with the help of a representative before dismissal is effected. Private respondents reply letter addressed to Mr. Padua does not satisfy the requirement of ample opportunity to be heard. The said reply letter was written by private respondent in his capacity as front desk supervisor in order to shed light on the events that transpired involving Mariano and Landrigan. Private respondent was not then aware that the complaint was directed at him. Moreover, as there was no investigation conducted by petitioner, private respondent was not afforded an opportunity to confront Landrigan, Mariano or Mr. Hu.4== In sum, there is no valid and just cause in terminating the employment of private respondent. With the finding that private respondent was illegally dismissed, he is entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages inclusive of allowances, and to other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. [15]
Hence, aside from reinstatement, private respondent here is entitled to full backwages. However, the backwages awarded by public respondent was inadequate compensation for his travail. Public respondent limited private respondents backwages from the date of his dismissal and up to the time when petitioner allegedly offered to reinstate private reinstatement. It explained that the failure of private respondent to work, after the supposed offer was made, can no longer be attributed to the fault of petitioner. This, in our view, does not suffice to provide complete relief to the painful socio- economic dislocation of the employee and his family. As previously stated, an employee who is unjustly dismissed is entitled to his full backwages computed from the time his compensation was withheld from him up to the time of his reinstatement. Mere offer to reinstate a dismissed employee, given the circumstances in this case, is not enough. If petitioner were sincere in its intention to reinstate private respondent, petitioner should have at the very least reinstated him in its payroll right away. We are thus constrained to conclude that private respondent should be paid by petitioner not only the sum of P26,866.64 awarded by the NLRC, but the petitioner should be held liable for the entire amount of backwages due the private respondent from the day he was illegally dismissed up to the date of his reinstatement. Only then could observance of labor laws be promoted and social justice upheld. WHEREFORE, the instant petition is DISMISSED. The assailed DECISION of NLRC is AFFIRMED with the MODIFICATION that petitioner is hereby ordered not only to reinstate private respondent to his position but also to pay his full backwages from the day of his illegal dismissal until his actual reinstatement. Public respondent NLRC is hereby directed to make the computation of said full backwages including allowances and other benefits owing to the private respondent, and inform soonest all parties as well as this Court accordingly, within thirty days after receipt of this decision. Costs against petitioner. SO ORDERED.
2. CONSTRUCTIVE DISMISSAL VS ILLEGAL DISMISSAL FERNANDO GO VS CA MAY 28, 2004 Hence, this petition for review, raising the following arguments: The Court of Appeals committed reversible error considering that: 1. It weighed at face value the sworn statement of Antonio Roman and its annexes, which were both presented for the first time on appeal; 2. It ruled that herein petitioner was not constructively dismissed rather he voluntarily resigned from the respondent; 3. It held that the petitioner's witnesses are biased and therefore tainted with prejudice against the private respondent; 4. It ruled that the resignation of the petitioner was not a result of the manipulation and deception of the private respondent, and; 5. It held that the NLRC committed grave abuse of discretion when it misappreciated the facts and rendered judgment contrary to established evidence. 22
The petition lacks merit. It is a well-established rule that the jurisdiction of the Supreme Court in cases brought before it from the Court of Appeals via Rule 45 of the 1997 Rules of Civil Procedure, as amended, is limited to reviewing errors of law. 23 This Court is not a trier of facts. In the exercise of its power of review, the findings of fact of the Court of Appeals are conclusive and binding and consequently, it is not our function to analyze or weigh evidence all over again. 24
The above rule, however, is not iron-clad. In Siguan v. Lim 25 we enumerated the instances when the factual findings of the Court of Appeals are not deemed conclusive, to wit: (1) when the conclusion is a finding grounded entirely on speculations, 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 the Court of Appeals, in making its findings went beyond the issues of the case and the same is contrary to the admission of both the appellant and the appellee; (7) when the findings are contrary to those of 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 petitioner's main and reply brief are not disputed by the respondent; and when (10) the findings of fact are premised on the supposed evidence and contradicted by the evidence on record. In the instant case, the issue is shrouded by a conflict of factual perception. We are constrained to review the factual findings of the Court of Appeals, because the conflict falls within the ambit of one of the recognized exceptions to the conclusiveness of its findings, i.e., when its findings of facts contradict those of the lower court, in this case that of the Labor Arbiter and the agency which exercised adjudicative functions over him, the NLRC. The principal issue to be resolved in this case is whether or not the petitioner was constructively dismissed. Petitioner claims that his separation from employment with the respondent was a case of constructive dismissal, an allegation which the respondent refutes with its own set of evidence pointing to the petitioner's voluntary resignation. After a careful review of the records of this case, we find sufficient reasons to uphold respondent's contention. Constructive dismissal exists where there is a cessation of work because continued employment is rendered impossible, unreasonable or unlikely. 26 It is present when an employee's functions, which were originally supervisory in nature, were reduced, and such reduction is not grounded on valid grounds such as genuine business necessity. 27
Petitioner contends that he felt compelled to tender his resignation on October 12, 1998 because after the discovery of anomalies perpetrated by sales people under him, he started getting shabby treatment from the company, and that slowly, he was divested of his duties and responsibilities as the Senior Sales and Marketing Manager of the respondent. He, however, maintains that his resignation was involuntary. In support of his contention, the petitioner submitted the respective affidavits of Mario Carangan III 28 and Floriza Tuazon, 29 his former co-employees, who both alleged that petitioner was one of the officers of respondent who was stripped of responsibilities and duties while the investigation of the anomalies was going on. By way of rebuttal, the respondent challenged the contents of the sworn statements for being purely hearsay. With respect to the sworn statement of Ms. Floriza G. Tuazon, respondent argues that Ms. Tuazon resigned even before the petitioner. Thus, she could not be privy to the events involving petitioner which transpired after her resignation. More specifically, the cause of petitioner's resignation on October 12, 1998 was no longer within the competence of Ms. Tuazon. 30 The sworn statement of Mr. Mario Carangan III also suffers from the same infirmity. As correctly observed by the Court of Appeals: It should be remembered that the petitioner has submitted a letter of resignation. It is thus incumbent upon him to substantiate his claim that his resignation was not voluntary but in truth was actually a constructive dismissal. 31
The failure of the petitioner to fully substantiate his claim that the respondent stripped him of his duties and functions is fatal to his present petition. Except for the sworn statements previously discussed, which we have found to be lacking in probative value, petitioner did not present any other proof of the alleged stripping of his functions by the respondent. Petitioner's bare allegations of constructive dismissal, when uncorroborated by the evidence on record, cannot be given credence. Further, respondent presented copies of its confidential sales evaluation form 32 which prove that, contrary to the allegations of the petitioner, he was still performing his duties and responsibilities one month prior to his resignation. This clearly negates his allegations that he was stripped of his duties. Apparently, petitioner fully exercised the prerogatives and the responsibilities of his office as the Senior Sales Manager of the respondent during the time that the said functions were supposedly removed from him. Therefore, there can be no constructive dismissal to speak of. He who asserts must prove. 33
Moreover, after petitioner resigned, he went on leave from October 12, 1998 to November 16, 1998, the date of the effectivity of his resignation. While on leave, he worked for the release of his clearance and the payment of his 13th month pay and leave pay benefits. In doing so, he in fact performed all that an employee normally does after he resigns. Petitioner has taken his theory of coerced or manipulated resignation out of the equation. If indeed the petitioner was forced into resigning from the respondent, he would not have sought to be cleared by the respondent and to be paid the monies due him. Resignation is the formal pronouncement or relinquishment of an office. 34 The voluntary nature of petitioner's acts has manifested itself clearly and belie his claim of constructive dismissal. The totality of the evidence indubitably shows that petitioner resigned from employment without any coercion or compulsion from respondent. His resignation was voluntary. As such, he shall only be entitled to his 13th month pay and leave pay benefits. These, however, have already been paid to him by respondent. 35
WHEREFORE, the petition is DENIED and the decision of the Court Appeal dated June 30, 2003 is AFFIRMED. The complaint for constructive dismissal filed by respondent Fernando Go against petitioner is ordered DISMISSED. SO ORDERED. UNICORN SAFETY GLASS INC. VS. BASARTE NOV. 25, 2004 Its Motion for Reconsideration having been denied, petitioners are before us on Petition for Review on Certiorari, raising the following assignment of errors: I. THE HONORABLE COURT OF APPEALS ERRED IN REVERSING THE RULING OF THE LABOR ARBITER A QUO WHICH WAS AFFIRMED BY THE NLRC HOLDING THAT PRIVATE RESPONDENTS WERE NOT ILLEGALLY DISMISSED FROM THEIR EMPLOYMENT. II. THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT THE RELEASE, WAIVER AND QUITCLAIMS EXECUTED BY PRIVATE RESPONDENTS RODRIGO BASARTE AND JAIMELITO FLORES NULL AND VOID. 14
The petition lacks merit. Constructive dismissal or a constructive discharge has been defined as quitting because continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank and a diminution in pay. 15 Constructive dismissal, however, does not always take the form of a diminution. In several cases, we have ruled that an act of clear discrimination, insensibility, or disdain by an employer may become so unbearable on the part of the employee so as to foreclose any choice on his part except to resign from such employment. This constitutes constructive dismissal. 16
In the case at bar, we agree with the Court of Appeals that petitioners' bare assertions on the alleged reason for the rotation plan as well as its failure to refute respondents' contention that they were targeted due to their union activities, merit the reversal of the Labor Arbiter's decision. It was incumbent upon petitioners to prove that the rotation scheme was a genuine business necessity and not meant to subdue the organized union. The reasons enumerated by petitioners in their Memoranda dated March 2, 1998 were factors too general to actually substantiate the need for the scheme. Petitioners cite the reduction in their electric consumption as proof of an economic slump. This may be true to an extent. But it does not, by itself, prove that the rotation scheme was the most reasonable alternative to remedy the company's problems. The petitioners' unbending stance on the implementation of the rotation scheme was an indication that the rotation plan was being implemented for reasons other than business necessity. It appears that respondents attempted on more than one occasion to have a dialogue with petitioner Hilario Yulo to discuss the work reduction. Good faith should have prompted Yulo to hear the side of the respondents, to come up with a scheme amenable to both parties or attempt to convince the employees concerned that there was no other viable option. However, petitioners ignored the letters sent by respondents, which compelled the latter to seek redress with the Labor Arbiter. We are mindful that every business strives to keep afloat during these times when prevailing economic situations turns such endeavor into a near struggle. With as much latitude as our laws would allow, the Court has always respected a company's exercise of its prerogative to devise means to improve its operations. Thus, we have held that management is free to regulate, according to its own discretion and judgment, all aspects of employment, including hiring, work assignments, working methods, time, place and manner of work, processes to be followed, supervision of workers, working regulations, transfer of employees, work supervision, lay off of workers and discipline, dismissal and recall of workers. 17 Further, management retains the prerogative, whenever exigencies of the service so require, to change the working hours of its employees. 18
However, the exercise of management prerogative is not absolute. By its very nature, encompassing as it could be, management prerogative must be exercised in good faith and with due regard to the rights of laborverily, with the principles of fair play at heart and justice in mind. While we concede that management would best know its operational needs, the exercise of management prerogative cannot be utilized as an implement to circumvent our laws and oppress employees. The prerogative accorded management cannot defeat the very purpose for which our labor laws exist: to balance the conflicting interests of labor and management, not to tilt the scale in favor of one over the other, but to guaranty that labor and management stand on equal footing when bargaining in good faith with each other. 19
In the case at bar, the manner by which petitioners exercised their management prerogative appears to be an underhanded circumvention of the law. Petitioners were keen on summarily implementing the rotation plan, obviously singling out respondents who were all union officers. The management's apparent lack of interest to hear what the respondents had to say, created an uncertain situation where reporting for work was tantamount to an acquiescence in an unjust situation. Petitioners argued that they "exerted diligent and massive efforts" to make respondents return to work, highlighting the telegrams and memoranda sent to respondents. 20 It is well established that to constitute abandonment, two elements must concur: (1) the failure to report for work or absence without valid or justifiable reason, and (2) a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt acts. Abandoning one's job means the deliberate, unjustified refusal of the employee to resume his employment and the burden of proof is on the employer to show a clear and deliberate intent on the part of the employee to discontinue employment. 21
However, petitioners' charge of abandonment of work by respondents does not hold water when taken in light of the complaint for constructive dismissal. We have held that a charge of abandonment is totally inconsistent with the filing of a complaint for constructive dismissal and with reason. 22 Respondents cannot be said to have abandoned their jobs when precisely, the root cause of their protest is their demand to maintain their regular work hours. What is more, respondents even prayed for reinstatement and backwages. Clearly, these are incompatible with the proposition that respondents sought to abandon their work. Anent the issue of the validity of the waivers and quitclaims executed by some of the respondents, petitioners argue that while admittedly, the amounts indicated therein were not substantial, it does not necessarily follow that these were executed under duress. Moreover, the waivers and quitclaims were executed when the complaint for illegal dismissal was already dismissed by the Labor Arbiter. Thus, the waivers and quitclaims were executed under valid circumstances. We do not agree. To be sure, the law looks with disfavor upon quitclaims and releases by employees who are inveigled or pressured into signing them by unscrupulous employers seeking to evade their legal responsibilities. We have clarified the standards for determining the validity of quitclaim or waiver in the case of Periquet v. National Labor Relations Commission, 23 to wit: If the agreement was voluntarily entered into and represents a reasonable settlement, it is binding on the parties and may not later be disowned simply because of a change of mind. It is only where there is clear proof that the waiver was wangled from an unsuspecting or gullible person, or the terms of settlement are unconscionable on its face, that the law will step in to annul the questionable transaction. But where it is shown that the person making the waiver did so voluntarily, with full understanding of what he was doing, and the consideration for the quitclaim is credible and reasonable, the transaction must be recognized as a valid and binding undertaking. In the instant case, while it is true that the complaint for illegal dismissal filed by respondents with the Labor Arbiter has been dismissed, their appeal before the NLRC was still pending. In fact, petitioners even filed a Motion to Dismiss with the NLRC on the very ground that the respondents, or at least most of them, have executed said "Waivers, Releases and Quitclaims." Petitioners cannot therefore deny that it was in their interest to have respondents execute the quitclaims. Furthermore, the considerations received by respondents Basarte and Flores were grossly inadequate considering the length of time that they were employed in petitioner company. As correctly pointed out by the Court of Appeals, Basarte worked for petitioner company for 21 years, that is, from 1976 to 1998, while Flores worked from 1991 to 1998. Basarte and Flores only received P10,000.00 and P3,000.00, respectively. In contrast, Manongsong and Soltura, two workers who opted to settle their respective cases earlier on, both started in 1993 only, but were able to take home P16,434.00 each after executing their waivers. Article 279 of the Labor Code provides that an employee who is unjustly dismissed from work is entitled to reinstatement without loss of seniority rights and other privileges, and to his full backwages, inclusive of allowances, and to the other benefits or their monetary equivalent computed from the time of his actual reinstatement. However, if reinstatement is no longer possible, the employer has the alternative of paying the employee his separation pay in lieu of reinstatement. WHEREFORE, the instant petition is DENIED, and the decision of the Court of Appeals of October 18, 2001 in CA-G.R. SP No. 63577 is AFFIRMED in toto. Costs against petitioners. SO ORDERED. GLORIA ARTIAGA VS SILIMAN UNIVERSITY APRIL 16, 2009 The Court is not impressed.
While review of NLRC decisions via Certiorari should be confined to issues of want of jurisdiction and grave abuse of discretion, [16] grave abuse of discretion is committed when the board, tribunal or officer exercising judicial function fails to consider evidence adduced by the parties, [17] as did the NLRC in the present case. Moreover, where a partys contention appears to be clearly tenable, or where the broader interest of justice and public policy so require, the error may be corrected in a certiorari proceeding, [18] as again in the present case.
In reversing the Labor Arbiters decision, the NLRC upheld petitioners version and found her to have been constructively dismissal. Petitioner presented no evidence to substantiate her claim, however. [19]
On the other hand, SUMCs evidence of petitioners irregular acts is documented. And it sent petitioner a Notice of September 11, 1998 requiring her to explain her side and placing her under preventive suspension. Petitioners above- quoted letter-explanation cum resignation is self-explanatory.
Against the documentary evidence of respondents, petitioners claim thus fails.
Petitioners claim that respondents pieces of evidence were fabricated, viz,
Firstly, these documents [Notice of Preventive Suspension and Audit Report] were neither served [to] nor received by complainant. None of the documents even bear a signature identical to that written in her resignation letter. The signatures in Annexes [2] [Notice of Preventive Suspension] and [3] [September 11, 1998 Audit Report] are not even identical to each other. As claimed by respondents these two documents were supposedly received by complainant on September 11, 1998 or before her resignation. Strangely, the signature appearing on the left bottom of Annex [3] was dated 9/14/98 2:00PM while the recipients signature in Annex [2] has no date at all. Why [this] variance if the documents were actually given to complainant on the same day, September 11, 1998? [20] (Underscoring supplied)
does not persuade. Petitioners earlier-quoted explanation-resignation letter of September 13, 1998 unquestionably shows that she received the notices referred to, otherwise, to what matters she was explaining therein?
In fine, the Court of Appeals did not err in overturning the findings of the NLRC.
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated May 30, 2006 is AFFIRMED.
SO ORDERED.
MERCK SHARP AND DOHME AND PETER CARBONELL VS JONAR ROBLES - NOV. 25, 2009 Hence, this petition for review on certiorari raising the following issues:
1. [WHETHER THE] COURT OF APPEALS DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT GAVE DUE COURSE TO PRIVATE RESPONDENTS (CRISTOBALS) PETITION FOR CERTIORARI.
2. [WHETHER] THE COURT OF APPEALS GRAVELY ERRED WHEN IT REVERSED THE NLRC DECISION.
3. [WHETHER THE] HONORABLE COURT MAY REVIEW FACTUAL CONCLUSION[S] OF THE COURT OF APPEALS WHEN CONTRARY TO THOSE OF THE NLRC OR THE LABOR ARBITER. [4]
We first dispose of the procedural issues.
The issue of whether we can review factual conclusions of the CA, when contrary to those of the administrative tribunal, need not detain us unnecessarily. We have long held in a number of cases that factual findings of administrative or quasi-judicial bodies, which are deemed to have acquired expertise in matters within their respective jurisdictions, are generally accorded not only respect but even finality, and bind the Court when supported by substantial evidence. [5] Corollary thereto is our well-entrenched holding that this Court is not a trier of facts; this is strictly adhered to in labor cases. [6] However, the rule admits of exceptions when: (1) the findings are grounded entirely on speculation, surmises or conjectures; (2) the inference made is manifestly mistaken, absurd or impossible; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) 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 appellant and appellee; (7) the findings are contrary to those of the trial court; (8) the findings are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition, as well as in petitioners main and reply briefs, are not disputed by respondent; (10) the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion. [7] In the case at bar, we gave due course to MSDs petition as the findings of fact and the conclusions of law of the Labor Arbiter and the NLRC differ from those of the CA.
MSD next contends that the CA gravely erred when it did not dismiss outright respondent Cristobals petition for certiorari for the latters failure to first file a motion for reconsideration of the NLRCs resolution.
While MSD is correct in stating that, generally, certiorari, as a special civil action, will not lie unless a motion for reconsideration is filed before the respondent tribunal to allow it an opportunity to correct its imputed errors, [8] the rule admits of the following exceptions:
(a) where the order is a patent nullity, as where the court a quo has no jurisdiction; (b) where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court; (c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable; (d) where, under the circumstances, a motion for reconsideration would be useless; (e) where petitioner was deprived of due process and there is extreme urgency for relief; (f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable; (g) where the proceedings in the lower court are a nullity for lack of due process; (h) where the proceedings was ex parte or in which the petitioner had no opportunity to object; and (i) where the issue raised is one purely of law or where public interest is involved. [9]
The second and fourth exceptions are applicable in this case. As pointed out by respondent Cristobal, Jean Sarmiento, one of the complainants in NLRC-NCR Case No. 00-12-13804-2003 before the Labor Arbiter who was similarly situated as Cristobal and had likewise claimed constructive dismissal by MSD, filed a motion for reconsideration which was perfunctorily denied by the NLRC. At that moment, respondent Cristobal was justified in directly filing a petition for certiorari with the CA to annul the NLRC resolution. In point is Abraham v. National Labor Relations Commission: [10]
The rationale for the requirement of first filing a motion for reconsideration before the filing of a petition for certiorari is that the law intends to afford the tribunal, board, or office an opportunity to rectify the errors and mistakes it may have lapsed into before resort to the courts of justice can be had. In the present case, the NLRC was already given the opportunity to review its ruling and correct itself when the respondent filed its motion for reconsideration of the NLRCs initial ruling in favor of petitioner. In fact, it granted the motion for reconsideration filed by the respondent and reversed its previous ruling and reinstated the decision of the Labor Arbiter dismissing the complaint of the petitioner. It would be an exercise in futility to require the petitioner to file a motion for reconsideration since the very issues raised in the petition for certiorari, i.e. whether or not the petitioner was constructively dismissed by the respondent and whether or not she was entitled to her money claims, were already duly passed upon and resolved by the NLRC. Thus the NLRC had more than one opportunity to resolve the issues of the case and in fact reversed itself upon a reconsideration. It is highly improbable or unlikely under the circumstances that the Commission would reverse or set aside its resolution granting a reconsideration. [11]
We now come to the pivotal issue for our resolution: whether respondent Cristobal was constructively dismissed by petitioner MSD.
MSD is adamant that the CA erred in not characterizing the work reassignment of respondent Cristobal as falling within the ambit of management prerogative and, thus, beyond challenge. In addition, MSD postulates that the work reassignment of medical representatives, such as respondent Cristobal, is not only dictated by the nature of the work, but is, more importantly, written in the employment contract.
Once more, we agree with MSDs statement of the general rule that the work reassignment of an employee is a management prerogative. Indeed, even the Constitution recognizes the right of enterprises to reasonable returns on investments, and to expansion and growth. [12] Yet, we are quick to point out that the invocation of management prerogative carries the corresponding burden of proving such contention. We reiterated as much in the recent case of Norkis Trading Co., Inc. v. Gnilo: [13]
Well-settled is the rule that it is the prerogative of the employer to transfer and reassign employees for valid reasons and according to the requirement of its business. An owner of a business enterprise is given considerable leeway in managing his business. Our law recognizes certain rights, collectively called management prerogative as inherent in the management of business enterprises. We have consistently recognized and upheld the prerogative of management to transfer an employee from one office to another within the business establishment, provided that there is no demotion in rank or diminution of his salary, benefits and other privileges and the action is not motivated by discrimination, made in bad faith, or effected as a form of punishment or demotion without sufficient cause. This privilege is inherent in the right of employers to control and manage their enterprises effectively.
The right of employees to security of tenure does not give them vested rights to their positions to the extent of depriving management of its prerogative to change their assignments or to transfer them. Managerial prerogatives, however, are subject to limitations provided by law, collective bargaining agreements, and general principles of fair play and justice.
The employer bears the burden of showing that the transfer is not unreasonable, inconvenient or prejudicial to the employee; and does not involve a demotion in rank or a diminution of his salaries, privileges and other benefits. Should the employer fail to overcome this burden of proof, the employees transfer shall be tantamount to constructive dismissal. [14]
In the case at bar, specifically in the matter of respondent Cristobals transfer, the Labor Arbiter and the NLRC promptly dismissed Cristobals charge of constructive dismissal. Both labor tribunals relied heavily on the stipulation in the employment contract which reads:
9. You agree to be assigned to any work for such period as may be determined by [MSD] whenever the operations thereof require such assignment. It is also understood that, depending upon the operational requirements of [MSD], you may be assigned to any location in the Philippines. These assignments are subject to change any time whenever necessary in the interest of [MSD].
This provision, coupled with their finding that the new assignment did not involve a demotion in rank and/or a diminution in pay, led to the labor tribunals uniform conclusion that Cristobal unjustly refused to comply with his new work assignment, and was, therefore, not constructively dismissed.
In marked contrast, the CA, in ruling that Cristobal was constructively dismissed, had this to say:
This Court, however, takes exception to the ruling of the NLRC as regards the case of Christian. The pertinent portion of the NLRCs ruling reads as follows:
x x x. It is undisputed that complainants Sarmiento, Cristobal and Tomeldan were merely transferred to their new assignments as a result of an annual implementation of the new Territorial configuration/PHR Assignments usually done by the Company at the start of every year. x x x The records of the case are bereft of any evidence showing that their resignation was an involuntary one; and it was resorted to because their continued employment has become impossible, unreasonable or unlikely. It is worthy to note that said transfers affect not only the [respondents] but some other co-employees as well, which included three (3) other District Managers.
The facts of the case at bar show that after Christians suspension was lifted, he was given a new assignment. Christian requested for a transfer which was not granted. Thereafter, Christian received a new ENTE containing the charges similar to the ones for which he was already exonerated. Moreover, [petitioners] failed to explain why they did not act on Christians application for sick leave and instead gave him another ENTE. The events that thereafter transpired lead to the conclusion that Christians continued employment with [petitioner MSD] has become unbearable. It is settled that constructive dismissal exists when an act of clear discrimination, insensibility or disdain on the part of the employer has become so unbearable as to leave an employee with no choice but to forego continued employment.
Indeed it is settled that the objection to the transfer being grounded on solely upon the personal inconvenience or hardship that will be caused to the employee by reason of the transfer is not a valid reason to disobey an order of transfer. A scrutiny of the facts of the case at bar, however, shows that the transfer of Christian reeks with bad faith as to consider his case one of constructive dismissal. Under the law, Christian has to be reinstated to his former position with full backwages from the time he was dismissed up to his actual reinstatement. [15]
We are in accord with the appellate courts ruling that respondent Cristobal was constructively dismissed by MSD.
Time and again we have ruled that in constructive dismissal cases, the employer has the burden of proving that the transfer of an employee is for just and valid grounds, such as genuine business necessity. [16] The employer must demonstrate that the transfer is not unreasonable, inconvenient, or prejudicial to the employee and that the transfer does not involve a demotion in rank or a diminution of salary and other benefits. If the employer fails to overcome this burden of proof, the employees transfer is tantamount to unlawful constructive dismissal.
Our holding in Westmont Pharmaceuticals, Inc. v. Samaniego [17] is instructive, to wit:
Westmont and Unilab failed to discharge this burden. Samaniego was unceremoniously transferred from Isabela to Metro Manila. We hold that such transfer is economically and emotionally burdensome on his part. He was constrained to maintain two residences one for himself in Metro Manila, and the other for his family inTuguegarao City, Cagayan. Worse, immediately after his transfer to Metro Manila, he was placed on floating status and was demoted in rank, performing functions no longer supervisory in nature. There may also be constructive dismissal if an act of clear insensibility or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment. This was what happened to Samaniego. x x x. [18]
As with Westmont and Unilab in the cited case, MSD failed to discharge the required burden of proof. The following circumstances negate MSDs claim that, on the whole, the transfer of Cristobal was done in good faith and based on just and valid grounds:
1. Although MSD was unable to prove the initial charge against Cristobal, the threat of an investigation remained like a Damocles sword looming over him. Eventually, Cristobals preventive suspension was lifted, and he was reassigned subsequently to a different district. In the meantime, Cristobal was again asked to explain a similar charge of dishonesty and acting against the interest of MSD, likewise based on an expense report supported by a receipt from Lorna Food Services. We note that MSD claims that it commissioned an investigation agency to ascertain the veracity of some reports of employees fraudulent transactions. The second charge against Cristobal was ostensibly based on an expense report for a different date. However, this expense report was likewise supported by a receipt issued by Lorna Food Services, which should have been within the knowledge of MSD. And as the first charge did not stick, the second, yet identical, charge of dishonesty--coupled with a very far reassignment-- undoubtedly, created an oppressive atmosphere for Cristobal.
2. Cristobals request for reassignment was not acted upon and was, ultimately, denied. In fact, no business reason whatsoever was stated in the electronic mail to justify the necessity of transferring Cristobal. Curiously, the list of district assignments in 2003 and 2004 submitted by MSD in evidence clearly shows that only Cristobal was reassigned, and to a station infinitely distant from where he lived. To make matters worse, upon denial of the request for transfer, Cristobal was ordered to report for work in the new assignment the very next day. This clearly demonstrates an insensitivity to the welfare of Cristobal and his family given that he lives in Marikina and was now required to report immediately for work in the Baguio and San Fernando areas.
3. Lastly, MSD did not give any reason why Cristobals request for a five-day sick leave was denied.
WHEREFORE, premises considered, the petition is DENIED. The Decision of the Court of Appeals in CA-G.R. SP No. 94265 is AFFIRMED. Petitioner Merck Sharp and Dohme (Philippines) is ordered to REINSTATE respondent Christian Aldrin S. Cristobal and to pay him full backwages. No costs.
SO ORDERED. MANOLO A PENAFLOR VS OUTDOOR CLOTHING MANUFACTURING CORPORATION APRIL 13, 2010 THE ISSUE and THE COURTS RULING
The Court finds the petition meritorious.
A preliminary contentious issue is Outdoor Clothings argument that we should dismiss the petition outright because it raises questions of facts, not the legal questions that should be raised in a Rule 45 petition. [16]
We see no merit in this argument as the rule that a Rule 45 petition deals only with legal issues is not an absolute rule; it admits of exceptions. In the labor law setting, we wade into factual issues when conflict of factual findings exists among the labor arbiter, the NLRC, and the CA. This is the exact situation that obtains in the present case since the labor arbiter found facts supporting the conclusion that there had been constructive dismissal, while the NLRCs and the CAs factual findings contradicted the labor arbiters findings. [17] Under this situation, the conflicting factual findings below are not binding on us, and we retain the authority to pass on the evidence presented and draw conclusions therefrom. [18]
The petition turns on the question of whether Peaflors undisputed resignation was a voluntary or a forced one, in the latter case making it a constructive dismissal equivalent to an illegal dismissal. A critical fact necessary in resolving this issue is whether Peaflor filed his letter of resignation before or after the appointment of Buenaobra as the new/concurrent HRD manager. This question also gives rise to the side issue of when Buenaobras appointment was made. If the resignation letter was submitted before Syfus appointment of Buenaobra as new HRD manager, little support exists for Peaflors allegation that he had been forced to resign due to the prevailing abusive and hostile working environment. Buenaobras appointment would then be simply intended to cover the vacancy created by Peaflors resignation. On the other hand, if the resignation letter was submitted after the appointment of Buenaobra, then factual basis exists indicating that Peaflor had been constructively dismissed as his resignation was a response to the unacceptable appointment of another person to a position he still occupied.
The question of when Peaflor submitted his resignation letter arises because this letter undisputably made was undated. Despite Peaflors claim of having impressive intellectual and academic credentials, [19] his resignation letter, for some reason, was undated. Thus, the parties have directly opposing claims on the matter. Peaflor claims that he wrote and filed the letter on the same date he made his resignation effective March 15, 2000. Outdoor Clothing, on the other hand, contends that the letter was submitted on March 1, 2000, for which reason Syfu issued a memorandum of the same date appointing Buenaobra as the concurrent HRD manager; Syfus memorandum cited Peaflors intention to resign so he could devote his time to teaching. The company further cites in support of its case Buenaobras March 3, 2000 memorandum accepting his appointment. Another piece of evidence is the Syfu memorandum of March 10, 2000, which informed the office of the appointment of Buenaobra as the concurrent Head of HRD the position that Peaflor occupied. Two other memoranda are alleged to exist, namely, the AWOL memoranda of March 6 and 11, 2000, allegedly sent to Penaflor.
Several reasons arising directly from these pieces of evidence lead us to conclude that Peaflor did indeed submit his resignation letter on March, 15, 2000, i.e., on the same day that it was submitted.
First, we regard the Syfu memorandum of March 1, 2000 and the memorandum of Buenaobra of March 3, 2000 accepting the position of HRD Head to be highly suspect. In our view, these memoranda, while dated, do not constitute conclusive evidence of their dates of preparation and communication. Surprisingly, Peaflor was never informed about these memoranda when they directly concerned him, particularly the turnover of responsibilities to Buenaobra if indeed Peaflor had resigned on March 1, 2000 and a smooth turnover to Buenaobra was intended. Even the recipients of these communications do not appear to have signed for and dated their receipt. The AWOL memoranda, to be sure, should have been presented with proof of service if they were to have any binding effect on Peaflor.
Second,we find it surprising that these pieces of evidence pointing to a March 1, 2000 resignation specifically, Syfus March 1, 2000 memorandum to Buenaobra about Penaflors resignation and Buenaobras own acknowledgment and acceptance were only presented to the NLRC on appeal, not before the labor arbiter. The matter was not even mentioned in the companys position paper filed with the labor arbiter. [20] While the presentation of evidence at the NLRC level on appeal is not unheard of in labor cases, [21] still sufficient explanation must be adduced to explain why this irregular practice should be allowed. In the present case, Outdoor Clothing totally failed to explain the reason for its omission. This failure, to us, is significant, as these were the clinching pieces of evidence that allowed the NLRC to justify the reversal of the labor arbiters decision.
Third, the circumstances and other evidence surrounding Peaflors resignation support his claim that he was practically compelled to resign from the company.
Foremost among these is the memorandum of March 10, 2000 signed by Syfu informing the whole office (To: All concerned) about the designation of Buenaobra as concurrent Accounting and HRD Manager. In contrast with the suspect memoranda we discussed above, this memorandum properly bore signatures acknowledging receipt and dates of receipt by at least five company officials, among them the readable signature of Demogene and one Agbayani; three of them acknowledged receipt on March 13, 2000, showing that indeed it was only on that day that the appointment of Buenaobra to the HRD position was disclosed. This evidence is fully consistent with Peaflors position that it was only in the afternoon of March 13, 2000 that he was told, informally at that, that Buenaobra had taken over his position. It explains as well why as late as March 13, 2000, Peaflor still prepared and signed a security report, [22] and is fully consistent with his position that on that day he was still working on the excuse letter of certain sales personnel of the company. [23]
We note that the company only belatedly questioned the motivation that Peaflor cited for his discriminatory treatment, i.e., that he was caught in the bitter fight between Syfu and Lee, then Vice President for Operations, that led the latter to leave the company. [24] After Lee left, Peaflor alleged that those identified with Lee were singled out for adverse treatment, citing in this regard the downsizing of HRD that occurred on or about this time and which resulted in his one-man HRD operation. We say this downsizing was only alleged as the company totally failed despite Penaflors claim of discriminatory practice to adduce evidence showing that there had indeed been a legitimate downsizing. Other than its bare claim that it was facing severe financial problems, Outdoor Clothing never presented any evidence to prove both the reasons for its alleged downsizing and the fact of such downsizing. No evidence was ever offered to rebut Peaflors claim that his staff members were dismissed to make his life as HRD Head difficult. To be sure, Peaflors participation in the termination of his staff members employment cannot be used against him, as the termination of employment was a management decision that Peaflor, at his level, could not have effectively contested without putting his own job on the line.
Peaflors own service with the company deserves close scrutiny. He started working for the company on September 2, 1999 so that by March 1, 2000, his probationary period would have ended and he would have become a regular employee. We find it highly unlikely that Peaflor would resign on March 1, 2000 and would then simply leave given his undisputed record of having successfully worked within his probationary period on the companys Policy Manual, Personnel Handbook, Job Expectations, and Organizational Set-up. It does not appear sound and logical to us that an employee would tender his resignation on the very same day he was entitled by law to be considered a regular employee, especially when a downsizing was taking place and he could have availed of its benefits if he would be separated from the service as a regular employee. It was strange, too, that he would submit his resignation on March 1, 2000 and keep completely quiet about this development until its effective date on March 15, 2000. In the usual course, the turnover alone of responsibilities and work loads to the successor in a small company would have prevented the matter from being completely under wraps for 10 days before any announcement was ever made. That Peaflor was caught by surprise by the turnover of his post to Buenaobra is in fact indicated by the companys own evidence that Peaflor still submitted a security report on March 13, 2000. On the whole, Peaflors record with the company is not that of a company official who would simply and voluntarily tender a precipitate resignation on the excuse that he would devote his time to teaching a lame excuse at best considering that March is the month the semester usually ends and is two or three months away from the start of another school year.
In our view, it is more consistent with human experience that Peaflor indeed learned of the appointment of Buenaobra only on March 13, 2000 and reacted to this development through his resignation letter after realizing that he would only face hostility and frustration in his working environment. Three very basic labor law principles support this conclusion and militate against the companys case.
The first is the settled rule that in employee termination disputes, the employer bears the burden of proving that the employees dismissal was for just and valid cause. [25] That Peaflor did indeed file a letter of resignation does not help the companys case as, other than the fact of resignation, the company must still prove that the employee voluntarily resigned. [26] There can be no valid resignation where the act was made under compulsion or under circumstances approximating compulsion, such as when an employees act of handing in his resignation was a reaction to circumstances leaving him no alternative but to resign. [27] In sum, the evidence does not support the existence of voluntariness in Peaflors resignation.
Another basic principle is that expressed in Article 4 of the Labor Code that all doubts in the interpretation and implementation of the Labor Code should be interpreted in favor of the workingman. This principle has been extended by jurisprudence to cover doubts in the evidence presented by the employer and the employee. [28] As shown above, Peaflor has, at very least, shown serious doubts about the merits of the companys case, particularly in the appreciation of the clinching evidence on which the NLRC and CA decisions were based. In such contest of evidence, the cited Article 4 compels us to rule in Peaflors favor. Thus, we find that Peaflor was constructively dismissed given the hostile and discriminatory working environment he found himself in, particularly evidenced by the escalating acts of unfairness against him that culminated in the appointment of another HRD manager without any prior notice to him. Where no less than the companys chief corporate officer was against him, Peaflor had no alternative but to resign from his employment. [29]
Last but not the least, we have repeatedly given significance in abandonment and constructive dismissal cases to the employees reaction to the termination of his employment and have asked the question: is the complaint against the employer merely a convenient afterthought subsequent to an abandonment or a voluntary resignation? We find from the records that Peaflor sought almost immediate official recourse to contest his separation from service through a complaint for illegal dismissal. [30] This is not the act of one who voluntarily resigned; his immediate complaints characterize him as one who deeply felt that he had been wronged.
WHEREFORE, we GRANT the petitioners petition for review on certiorari, and REVERSE the decision and resolution of the Court of Appeals in CA-G.R. SP No. 87865 promulgated on December 29, 2006 and March 14, 2007, respectively. We REINSTATE the decision of the labor arbiter dated August 15, 2001, with the MODIFICATION that, due to the strained relations between the parties, respondents are additionally ordered to pay separation pay equivalent to the petitioners one months salary.
Costs against the respondents.
SO ORDERED.
COCA-COLA BOTTLERS PHILIPPINES VS ANGEL DEL VILLAR OCT. 6, 2010 In this Petition for Review, the Company raises three grounds for consideration of this Court: A. THE HONORABLE COURT OF APPEALS GAVE DUE COURSE TO THE PETITION DESPITE THE FACT THAT IT WAS CLEARLY FILED BEYOND THE REGLEMENTARY PERIOD PRESCRIBED BY LAW. B. THE HONORABLE COURT OF APPEALS GAVE DUE COURSE TO THE [Court of Appeals] PETITION DESPITE THE FACT THAT [Del Villar] FAILED TO ESTABLISH THAT THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION IN RENDERING THE 26 FEBRUARY 1999 DECISION AND 26 APRIL 1999 RESOLUTION. C. THE HONORABLE COURT OF APPEALS EFFECTIVELY DIRECTED [Del Villars] REINSTATEMENT TO HIS FORMER JOB LEVEL DESPITE ITS IMPOSSIBILITY SINCE HE HAD ALREADY BEEN VALIDLY SEPARATED FROM SERVICE. 18
The Company avers that the Court of Appeals erred in giving due course to Del Villars Petition for Certiorari in CA-G.R. SP No. 53815 as the said remedy was filed out of time. Rule 65, Section 4 of the Rules of Court, as amended by Supreme Court Circular No. 39-98 on September 1, 1998, provided: Sec. 4. Where and when petition to be filed. The petition may be filed not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, and unless otherwise provided by law or these Rules, the petition shall be filed in and cognizable only by the Court of Appeals. If the petitioner had filed a motion for new trial or reconsideration in due time after notice of said judgment, order or resolution, the period herein fixed shall be interrupted. If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of such denial. No extension of time to file the petition shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days. (Emphases ours.) The Company points out that Del Villar received a copy of the NLRC Decision dated February 26, 1999 on March 17, 1999. Twelve days later, on March 29, 1999, Del Villar filed a Motion for Reconsideration, thus, interrupting the 60-day reglementary period for filing a petition for certiorari. The NLRC denied Del Villars Motion for Reconsideration in a Resolution dated April 26, 1999, a copy of which Del Villar received on May 21, 1999. From May 21, 1999, Del Villar only had 48 days more, or until July 8, 1999, within which to file his petition for certiorari; but he only did so 60 days later, on July 20, 1999. Clearly, Del Villars Petition for Certiorari in CA-G.R. SP No. 53815 was filed 12 days late and way beyond the reglementary period as provided under the Rules of Court. We do not agree. While CA-G.R. SP No. 53815 was pending before the Court of Appeals, Section 4 of Rule 65 of the Rules of Court was amended anew by Supreme Court Circular No. 56-2000, which took effect on September 1, 2000, to read: Sec. 4. When and where petition filed. The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of the said motion. The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court. It may also be filed in the Court of Appeals whether or not the same is in the aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction. If it involves the acts or omissions of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals. No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days. (Emphases ours.) It is clear that under Supreme Court Circular No. 56-2000, in case a motion for reconsideration of the judgment, order, or resolution sought to be assailed has been filed, the 60-day period to file a petition for certiorari shall be computed from notice of the denial of such motion. The crucial question now is whether Supreme Court Circular No. 56-2000 should be applied retroactively to Del Villars Petition in CA-G.R. SP No. 53815. We answer affirmatively. As we explained in Perez v. Hermano 19 : Under this amendment, the 60-day period within which to file the petition starts to run from receipt of notice of the denial of the motion for reconsideration, if one is filed. In Narzoles v. National Labor Relations Commission [G.R. No. 141959, 29 September 2000, 341 SCRA 533-538], we described this latest amendment as curative in nature as it remedied the confusion brought about by Circular No. 39-98 because, "historically, i.e., even before the 1997 revision to the Rules of Civil Procedure, a party had a fresh period from receipt of the order denying the motion for reconsideration to file a petition for certiorari." Curative statutes, which are enacted to cure defects in a prior law or to validate legal proceedings which would otherwise be void for want of conformity with certain legal requirements, by their very essence, are retroactive and, being a procedural rule, we held in Sps. Ma. Carmen and Victor Javellana v. Hon. Presiding Judge Benito Legarda(G.R. No. 139067, 23 November 2004] that "procedural laws are construed to be applicable to actions pending and undetermined at the time of their passage, and are deemed retroactive in that sense and to that extent." 20
In the instant case, Del Villar filed a Motion for Reconsideration of the NLRC Decision dated February 26, 1999. Del Villar received a copy of the NLRC Resolution dated April 26, 1999, denying his Motion for Reconsideration, on May 21, 1999. As already settled by jurisprudence, Del Villar had a fresh period of 60 days from May 21, 1999 within which to file his Petition for Certiorari before the Court of Appeals. Keeping in mind the rule that in computing a period, the first day shall be excluded and the last day included, 21 exactly 60 days had elapsed from May 21, 1999 when Del Villar filed his Petition with the appellate court on July 20, 1999. Hence, without a doubt, Del Villars Petition for Certiorari in CA-G.R. SP No. 53815 was seasonably filed. We now turn our attention to the merits of the case. The Company asserts that the Court of Appeals should not have issued a writ of certiorari in Del Villars favor as there was no grave abuse of discretion on the part of the NLRC in finding that Del Villar was not demoted and that the Company had not acted in bad faith or with malice. The issue of whether the Company, in transferring Del Villar from the position of Transportation Services Manager to Staff Assistant to the Corporate Purchasing and Materials Control Manager, validly exercised its management prerogative or committed constructive dismissal, is a factual matter. It is a settled rule that factual findings of labor officials, who are deemed to have acquired expertise in matters within their respective jurisdictions, are generally accorded not only respect but even finality. Moreover, in a petition for review on certiorari under Rule 45 of the Rules of Court, the Supreme Court reviews only errors of law and not errors of facts. However, where there is divergence in the findings and conclusions of the NLRC, on the one hand, from those of the Labor Arbiter and the Court of Appeals, on the other, the Court is constrained to examine the evidence, 22 to determine which findings and conclusion are more conformable with the evidentiary facts. Hence, in the instant Petition, we embark on addressing not only the legal, but the factual issues as well. Jurisprudence recognizes the exercise of management prerogative. For this reason, courts often decline to interfere in legitimate business decisions of employers. In fact, labor laws discourage interference in employers judgment concerning the conduct of their business. 23
In the pursuit of its legitimate business interest, management has the prerogative to transfer or assign employees from one office or area of operation to another provided there is no demotion in rank or diminution of salary, benefits, and other privileges; and the action is not motivated by discrimination, made in bad faith, or effected as a form of punishment or demotion without sufficient cause. The right of employees to security of tenure does not give them vested rights to their positions to the extent of depriving management of its prerogative to change their assignments or to transfer them. 24
Managerial prerogatives, however, are subject to limitations provided by law, collective bargaining agreements, and general principles of fair play and justice. 25 In the case of Blue Dairy Corporation v. National Labor Relations Commission, 26 we described in more detail the limitations on the right of management to transfer employees: But, like other rights, there are limits thereto. The managerial prerogative to transfer personnel must be exercised without grave abuse of discretion, bearing in mind the basic elements of justice and fair play. Having the right should not be confused with the manner in which that right is exercised. Thus, it cannot be used as a subterfuge by the employer to rid himself of an undesirable worker. In particular, the employer must be able to show that the transfer is not unreasonable, inconvenient or prejudicial to the employee; nor does it involve a demotion in rank or a diminution of his salaries, privileges and other benefits. Should the employer fail to overcome this burden of proof, the employees transfer shall be tantamount to constructive dismissal, which has been defined as a quitting because continued employment is rendered impossible, unreasonable or unlikely; as an offer involving a demotion in rank and diminution in pay. Likewise, constructive dismissal exists when an act of clear discrimination, insensibility or disdain by an employer has become so unbearable to the employee leaving him with no option but to forego with his continued employment. 27
In the case at bar, there is no dispute that Del Villar was transferred by the Company from the position of Transportation Services Manager to the position of Staff Assistant to the Corporate Purchasing and Materials Control Manager. The burden thus falls upon the Company to prove that Del Villars transfer was not tantamount to constructive dismissal. After a careful scrutiny of the records, we agree with the Labor Arbiter and the Court of Appeals that the Company failed to discharge this burden of proof. The Company and its officials attempt to justify the transfer of Del Villar by alleging his unsatisfactory performance as Transportation Services Manager. In its Petition, the Company disclosed that: 4.1. As Transportation Services Manager, [Del Villar] displayed an utterly woeful performance. He was unable to submit basic data as to type and brand of vehicles with highest/lowest maintenance cost as requested. [Del Villar] could not even update the records of his office. He never complied with his commitments on submission of reports and his claims of the availability of such reports were never substantiated. 4.2. [Del Villar] could not work with minimum or no supervision. His activities needed to be closely and constantly monitored by his superiors. [Del Villar] lacked initiative and had to be constantly reminded of what to do. The work he performed and/or submitted, more often than not, had to be redone. In his Performance and Potential Evaluation Sheet for 1995, [Del Villar] merited a mediocre grade of 2 in a scale of one (1) to five (5), the latter number being the highest grade. Copies of the Affidavit of Edgardo I. San Juan ["San Juan"], the Companys then Business Logistic Director, and respondents Performance and Potential Evaluation Sheet for 1995 are attached as Annexes "B" and "C", respectively. 28
San Juan averred in his Affidavit that Del Villar was inept and incompetent as Transportation Services Manager; and was even more unqualified to take over the new position of Transportation and Refrigeration Services Manager, which involved additional functions related to Refrigeration. It was for this reason that Del Villar was transferred to the position of Staff Assistant to the Corporate Purchasing and Materials Control Manager. In his Counter-Affidavit submitted before the NLRC, Pineda, the Corporate Purchasing and Materials Control Manager, claimed that: 3. As his evaluation would show, Mr. del Villar was not a well-motivated employee. He could not perform his job well and promptly with minimum or no supervision and follow-up from his superiors. He repeatedly failed to observe the deadlines which I set for the submission of his reports and often procrastinates. His work product likewise suffered from accuracy and thoroughness. Despite several admonitions and guidance from me as his immediate superior, he simply refused to change his work attitude. 29
We are unconvinced. The dismal performance evaluations of Del Villar were prepared by San Juan and Pineda after Del Villar already implicated his two superiors in his Report dated January 4, 1996 in an alleged fraudulent scheme against the Company. More importantly, we give weight to the following instances establishing that Del Villar was not merely transferred from the position of Transportation Services Manager to the position of Staff Assistant to the Corporate Purchasing and Materials Control Manager; he was evidently demoted. A transfer is a movement from one position to another which is of equivalent rank, level or salary, without break in service. Promotion, on the other hand, is the advancement from one position to another with an increase in duties and responsibilities as authorized by law, and usually accompanied by an increase in salary. Conversely, demotion involves a situation where an employee is relegated to a subordinate or less important position constituting a reduction to a lower grade or rank, with a corresponding decrease in duties and responsibilities, and usually accompanied by a decrease in salary. 30
First, as the Court of Appeals observed, Del Villars demotion is readily apparent in his new designation. Formerly, he was the Transportation Services Manager; then he was made a Staff Assistant a subordinate to another manager, particularly, the Corporate Purchasing and Materials Control Manager. Second, the two posts are not of the same weight in terms of duties and responsibilities. Del Villars position as Transportation Services Manager involved a high degree of responsibility, he being in charge of preparing the budget for all of the vehicles of the Company nationwide. As Staff Assistant of the Corporate Purchasing and Materials Control Manager, Del Villar contended that he was not assigned any meaningful work at all. The Company utterly failed to rebut Del Villars contention. It did not even present, at the very least, the job description of such a Staff Assistant. The change in the nature of work resulted in a degrading work condition and reduction of duties and responsibility constitute a demotion in rank. In Globe Telecom, Inc. v. Florendo-Flores, 31 we found that there was a demotion in rank even when the respondent therein continued to enjoy the rank of a supervisor, but her function was reduced to a mere house-to-house or direct sales agent. Third, while Del Villars transfer did not result in the reduction of his salary, there was a diminution in his benefits. The Company admits that as Staff Assistant of the Corporate Purchasing and Materials Control Manager, Del Villar could no longer enjoy the use of a company car, gasoline allowance, and annual foreign travel, which Del Villar previously enjoyed as Transportation Services Manager. Fourth, it was not bad enough that Del Villar was demoted, but he was even placed by the Company under the control and supervision of Pineda as the latters Staff Assistant. To recall, Pineda was one of the Company officials who Del Villar accused of defrauding the Company in his Report dated January 4, 1996. It is not too difficult to imagine that the working relations between Del Villar, the accuser, and Pineda, the accused, had been strained and hostile. The situation would be more oppressive for Del Villar because of his subordinate position vis--vis Pineda. Fifth, all the foregoing caused Del Villar inconvenience and prejudice, so unbearable for him that he was constrained to seek remedy from the NLRC. The Labor Arbiter was correct in his observation that had Del Villar resigned immediately after his "transfer," he could be said to have been constructively dismissed. There is constructive dismissal when there is a demotion in rank and/or diminution in pay; or when a clear discrimination, insensibility or disdain by an employer becomes unbearable to the employee. 32
Eventually, however, the Company actually terminated Del Villars services effective May 31, 1998, as his position was no longer necessary or was considered redundant due to the reorganization of the Business Logistic Directorate. Redundancy is one of the authorized causes for the dismissal of an employee. It is governed by Article 283 of the Labor Code, which reads: ART. 283. Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Department of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or to at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year. Redundancy, for purposes of the Labor Code, exists where the services of an employee are in excess of what is reasonably demanded by the actual requirements of the enterprise. Succinctly put, a position is redundant where it is superfluous, and superfluity of a position or positions may be the outcome of a number of factors, such as overhiring of workers, decreased volume of business, or dropping of a particular product line or service activity previously manufactured or undertaken by the enterprise. 33
The determination that the employee's services are no longer necessary or sustainable and, therefore, properly terminable for being redundant is an exercise of business judgment of the employer. The wisdom or soundness of this judgment is not subject to discretionary review of the Labor Arbiter and the NLRC, provided there is no violation of law and no showing that it was prompted by an arbitrary or malicious act. In other words, it is not enough for a company to merely declare that it has become overmanned. It must produce adequate proof of such redundancy to justify the dismissal of the affected employees. 34
We mentioned in Panlilio v. National Labor Relations Commission 35 that an employer may proffer "new staffing pattern, feasibility studies/proposal, on the viability of the newly created positions, job description and the approval by the management of the restructuring" as evidence of redundancy. We further explained in AMA Computer College Inc. v. Garcia 36 what constitutes substantial evidence of redundancy: ACC attempted to establish its streamlining program by presenting its new table of organization. ACC also submitted a certification by its Human Resources Supervisor, Ma. Jazmin Reginaldo, that the functions and duties of many rank and file employees, including the positions of Garcia and Balla as Library Aide and Guidance Assistant, respectively, are now being performed by the supervisory employees. These, however, do not satisfy the requirement of substantial evidence that a reasonable mind might accept as adequate to support a conclusion. As they are, they are grossly inadequate and mainly self-serving. More compelling evidence would have been a comparison of the old and new staffing patterns, a description of the abolished and newly created positions, and proof of the set business targets and failure to attain the same which necessitated the reorganization or streamlining. 37 (Emphases ours.) In this case, other than its own bare and self-serving allegation that Del Villars position as Staff Assistant of Corporate Purchasing and Materials Control Manager had already become redundant, no other evidence was presented by the Company. Neither did the Company present proof that it had complied with the procedural requirement in Article 283 of prior notice to the Department of Labor and Employment (DOLE) of the termination of Del Villars employment due to redundancy one month prior to May 31, 1998. The notice to the DOLE would have afforded the labor department the opportunity to look into and verify whether there is truth as to the claim of the Company that Del Villars position had become redundant "with the implementation of new distribution systems, utilization of improved operational processes, and functional reorganization" of the Company. Compliance with the required notices would have also established that the Company abolished Del Villars position in good faith. 38
Del Villars poor employee performance is irrelevant as regards the issue on redundancy.1avvphi 1 Redundancy arises because there is no more need for the employees position in relation to the whole business organization, and not because the employee unsatisfactorily performed the duties and responsibilities required by his position. 39
There being no authorized cause for the termination of Del Villars employment, then he was illegally dismissed. An employee who is illegally dismissed is entitled to the twin reliefs of full backwages and reinstatement. If reinstatement is not viable, separation pay is awarded to the employee. In awarding separation pay to an illegally dismissed employee, in lieu of reinstatement, the amount to be awarded shall be equivalent to one month salary for every year of service. 40 Under Republic Act No. 6715, employees who are illegally dismissed are entitled to full backwages, inclusive of allowances and other benefits or their monetary equivalent, computed from the time their actual compensation was withheld from them up to the time of their actual reinstatement but if reinstatement is no longer possible, the backwages shall be computed from the time of their illegal termination up to the finality of the decision. We note that Del Villars reinstatement is no longer possible because the position he previously occupied no longer exists, per San Juans Affidavit dated October 15, 1998. 41 Also, Del Villar had already received his separation pay sometime in October 1998. 42
Because of his unjustified dismissal, we likewise award in Del Villars favor moral and exemplary damages. Award of moral and exemplary damages for an illegally dismissed employee is proper where the employee had been harrassed and arbitrarily terminated by the employer. Moral damages may be awarded to compensate one for diverse injuries such as mental anguish, besmirched reputation, wounded feelings, and social humiliation occasioned by the employers unreasonable dismissal of the employee. We have consistently accorded the working class a right to recover damages for unjust dismissals tainted with bad faith; where the motive of the employer in dismissing the employee is far from noble. The award of such damages is based not on the Labor Code but on Article 220 of the Civil Code. 43 These damages, however, are not intended to enrich the illegally dismissed employee, such that, after deliberations, we find the amount of P100,000.00 for moral damages andP50,000.00 for exemplary damages sufficient to assuage the sufferings experienced by Del Villar and by way of example or correction for the public good. WHEREFORE, premises considered, the instant petition is DENIED for lack of merit. The Decision dated October 30, 2003 and Resolution dated March 29, 2004 of the Court of Appeals in CA-G.R. SP No. 53815 are herebyAFFIRMED with the following MODIFICATIONS: 1) the amount of backwages shall be computed from the date of Del Villars illegal dismissal until the finality of this judgment; and 2) the amount of moral and exemplary damages are reduced to P100,000.00 and P50,000.00, respectively. For this purpose, the case is hereby REMANDED to the Labor Arbiter for the computation of the amounts due Angel U. del Villar. SO ORDERED.
BEBINA G. SALVALOZA VS NLRC NOV. 24, 2010 In the Resolution dated March 13, 2008, the CA denied the motion for reconsideration. Hence, this petition, raising the following issues
I
WHETHER THE HONORABLE COURT OF APPEALS COMMITTED MANIFEST ERROR IN HOLDING THAT PETITIONER WAS NOT ILLEGALLY DISMISSED, THUS, TOTALLY DISREGARDING THE EVIDENCE ON RECORD, IN VIOLATION OF THE LABOR CODE[,] AS AMENDED[,] AND THE REVISED RULES OF EVIDENCE.
II
THE DECISION OF THE HONORABLE COURT OF APPEALS IS PREMISED ON A GRAVE MISAPPREHENSION OF FACT, WHEN IT HELD THAT THE RESPONDENT SECURITY AGENCY DIRECTED IN WRITING THE PETITIONER TO RENEW HIS SECURITY GUARD LICENSE AND THAT THE LATTER FAILED TO COMPLY DESPITE CONSTANT REMINDERS TO DO SO. SAID ALLEGED FACTS ARE MERE CONCLUSIONS MANIFESTLY NOT IN ACCORD WITH THE EVIDENCE ON RECORD. [24]
The petition filed on behalf of Gregorio alleges that, in termination cases, the burden of proving just cause for dismissing an employee is on the employer. It contends that Gulf Pacific and Quizon failed to discharge this burden when they claimed that Gregorios employment was severed for his failure to renew his security guard license, for his alleged inefficiency at work, and for his submission of a spurious security guard license.
It is further argued that the Memorandum dated August 2, 2001, requiring Gregorio to complete the requirements in his 201 file does not suffice as proof that he was directed to renew his security guard license, as nowhere in the said document can be found an express statement to that effect. It is claimed that, as a matter of practice, it was Gulf Pacific that renews the licenses of its security guards, and then deducts the cost from their salaries. Gregorio was allegedly misled with respect to his lack of license when he was placed on floating status for an indefinite period of time. According to the petition, all the documents for Gregorios 201 file, i.e., clearances and certifications, were already in the possession of Gulf Pacific, and it could have been easy for the latter to just renew his license. It is claimed that the alleged lack of a license was just a ploy to terminate him from employment. With respect to Gregorios salaries, it is alleged that there were no other evidence submitted by Gulf Pacific and Quizon, except for the payroll sheets, which, although Gregorio signed, did not reflect the amounts actually received by him.
It is settled that, in labor cases, the employer has the burden of proving that the employee was not dismissed, or, if dismissed, that the dismissal was not illegal. Failure to discharge this burden would be tantamount to an unjustified and illegal dismissal. [25]
The relevant provisions of Republic Act (R.A.) No. 5487 (The Private Security Agency Law) [26] stipulate
Section 6. License Necessary. No person shall engage in the business of, or act either as a private detective, or detective agency; and either engage in the occupation, calling or employment of watchman or in the business of watchmans agency without first having obtained the necessary permit from the Chief, Philippine Constabulary [27] which permit as approved is prerequisite in obtaining a license or license certificate: x x x.
x x x x
Section 9. Employees Need Not be Licensed. Every person operating, managing, directing or conducting a licensed private detective or watchmen agency shall also be considered a licensed private detective, or watchman and no person shall be employed or used in a private detective work unless he be a licensed private detective or watchman: Provided, That nothing in this section shall be construed as requiring detective license for persons employed solely for clerical or manual work. [28]
From the foregoing provisions, it is clear that a license is required before one can act or work as a security guard.
On this note, contrary to the posture of Gregorio, we hold that a security guard has the personal responsibility to obtain his license. Notwithstanding the practice of some security agencies to procure the licenses of their security guards for a fee, it remains the personal obligation of a security guard to ensure that he or she has a valid and subsisting license to be qualified and available for an assignment. Thus, when Gregorio was given the Memorandum dated August 2, 2001, directing him to complete his 201 file requirements, it meant that he had to submit each and every document to show his qualifications to work as a security guard, most important of which is his security guard license. Thus, his excuse that he was not informed that he already had an expired license and had to renew the same cannot be sustained. He should have known when his license was to expire. When he received the Memorandum, Gregorio did not even bother to verify what requirement he was supposed to complete or submit, whether it was indeed the license and/or some other document. Neither was it shown that he ever complied with this directive.
It is also observed that the date of the Memorandum reminding Gregorio to complete his 201 file requirements preceded the time when he was placed on floating status on August 30, 2001. The Memorandum indicated that, if on August 20, 2001, Gregorio had not yet completed his requirements, he would be relieved from his then assigned post at Anfran Realty. Per his service record, he was relieved from the said post on August 29, 2001, and he started to be on floating status on August 30, 2001.
However, it is likewise noted that the records of this case do not show when Gregorios security guard license actually expired. Notwithstanding the admission of Gregorio that his license expired, although insisting that it was Gulf Pacifics practice to renew the licenses of its security guards for a fee, Gulf Pacific failed to specifically show when the legal impossibility of posting Gregorio for an assignment due to the latters lack of a valid license commenced. Even the PNP Certification dated June 13, 2002 proffered by Gulf Pacific and Quizon does not conclusively show such fact. At most, it only proves that, as of that date, Gregorio was not included in the master list of registered security guards. Thus, the validity of Gulf Pacifics contention that it was legally impossible for it to assign Gregorio due to lack of a license may only be reckoned from that date.
We are mindful of the fact that, in cases involving security guards, most contracts for security services stipulate that the client may request the replacement of the guards assigned to it. A relief and transfer order in itself does not sever the employment relationship between a security guard and the agency. It is true that a security guard has the right to security of tenure, but this does not give him a vested right to the position as would deprive the company of its prerogative to change the assignment of or transfer the security guard to a station where his services would be most beneficial to the client. Indeed, an employer has the right to transfer or assign its employees from one office or area of operation to another, or in pursuit of its legitimate business interest, provided there is no demotion in rank or diminution of salary, benefits, and other privileges, and the transfer is not motivated by discrimination or bad faith, or effected as a form of punishment or demotion without sufficient cause. [29]
Temporary off-detail or floating status is the period of time when security guards are in between assignments or when they are made to wait after being relieved from a previous post until they are transferred to a new one. It takes place when the security agencys clients decide not to renew their contracts with the agency, resulting in a situation where the available posts under its existing contracts are less than the number of guards in its roster. It also happens in instances where contracts for security services stipulate that the client may request the agency for the replacement of the guards assigned to it even for want of cause, such that the replaced security guard may be placed on temporary off-detail if there are no available posts under the agencys existing contracts. During such time, the security guard does not receive any salary or any financial assistance provided by law. It does not constitute a dismissal, as the assignments primarily depend on the contracts entered into by the security agencies with third parties, so long as such status does not continue beyond a reasonable time. When such a floating status lasts for more than six (6) months, the employee may be considered to have been constructively dismissed. [30]
There is constructive dismissal if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it would foreclose any choice except to forego continued employment. It exists when there is cessation of work because continued employment is rendered impossible, unreasonable, or unlikely, as an offer involving a demotion in rank and a diminution in pay. [31]
Based on the foregoing circumstances and the applicable law and jurisprudence, we now address the question of whether Gregorio was constructively dismissed by Gulf Pacific. We answer in the affirmative.
It should be pointed out that, per his service record, Gregorio was thrice put on floating status by Gulf Pacific: (1) from October 22, 1996 to April 13, 1997, or a total of 174 days, or six (6) days less than six (6) months; (2) from July 14, 1999 to May 2, 2001, or a total of almost 22 months; and (3) indefinitely, starting from August 30, 2001.
Of the three instances when Gregorio was temporarily off-detailed, we find that the last two already ripened into constructive dismissal. While we acknowledge that Gregorios service record shows that his performance as a security guard was below par, we join the LA in his finding that Gulf Pacific never issued any memo citing him for the alleged repeated errors, inefficiency, and poor performance while on duty, and instead continued to assign him to various posts. This amounts to condonation by Gulf Pacific of whatever infractions Gregorio may have committed. Even assuming the reasons behind Gregorios being relieved as indicated in his service record to be true, it was incumbent upon Gulf Pacific to be vigilant in its compliance with labor laws. Although we understand that it could have been difficult for Gulf Pacific to post Gregorio given his age, about 50 years old, and his service record, still the agency should not have allowed him to wait indefinitely for an assignment if its clients were in truth less likely to accept him. If, indeed, Gregorio was undesirable as an employee, Gulf Pacific could just have dismissed him for cause. The unreasonable lengths of time that Gregorio was not posted inevitably resulted in his being constructively dismissed from employment.
However, with respect to Gregorios off-detail starting from August 30, 2001, we hold that it should only be counted up to June 13, 2002, and not up to the promulgation of the decision of the LA, considering that, on that date, it was legally impossible for Gulf Pacific to deploy him for lack of a valid security guard license.
With respect to the alleged underpayment of wages and benefits, suffice it to state that Gulf Pacific was able to rebut this claim through its payroll sheets correspondingly signed by Gregorio. As the payroll sheets provide a convincing proof of payment of his salaries and other benefits during his tours of duty as a security guard, the burden of proof was shifted to Gregorio to prove otherwise, but only with respect to those salaries and benefits indicated in the said payroll sheets.
On the LAs ruling ordering Gregorios reinstatement, we differ. Gregorios position paper did not pray for reinstatement, but only sought payment of money claims. Likewise, we consider the strained relations between the parties which make reinstatement impracticable. [32] What is more, even during the time of the LAs decision, reinstatement was no longer legally feasible since Gregorio was past the age qualification for a security guard license, taking into account his three (3) different birthdates, as appearing in his service record. Section 5 [33] of R.A. 5487, enumerating the qualifications for a security guard, provides, among others, that the person should not be less than 21 nor over 50 years of age. And as previously mentioned, as early as June 13, 2002, Gregorio was no longer in possession of a valid license. Thus, separation pay should be paid instead of reinstatement.
Finally, private respondent Quizon, manager of Gulf Pacific, should be excepted from paying Gregorios money entitlements inasmuch as Gregorios employer, Gulf Pacific, is a corporation with a separate and distinct legal personality. [34]
This case should therefore be remanded to the LA for the proper computation of the judgment award in favor of Gregorio.
WHEREFORE, the petition is PARTIALLY GRANTED. The assailed Decision dated September 28, 2007 and the Resolution dated March 13, 2008 of the Court of Appeals in CA G.R. SP No. 96101 are REVERSED and SET ASIDE. The decision of the Labor Arbiter dated June 30, 2004 isREINSTATED with the MODIFICATION that the deceased Gregorio Salvaloza, as represented by his wife Bebina G. Salvaloza, be awarded separation pay in lieu of reinstatement, and that his backwages and other monetary benefits be computed only up to June 13, 2002.
This case is remanded to the Labor Arbiter for the proper computation of the judgment award in favor of Gregorio within thirty (30) days from receipt hereof. Costs against Gulf Pacific Security Agency, Inc.
SO ORDERED.
MARIO DIMAGAN VS DACWORKS UNITED NOV. 8, 2011 Aggrieved, petitioner moved 14 for reconsideration of the CA Decision, but it was denied in the Resolution 15 dated January 22, 2010 for lack of merit. Hence, the instant recourse on the following grounds, to wit:
(A)
THE COURT OF APPEALS HAS FAILED IN ITS DUTY TO DETERMINE THAT RESPONDENTS HAVE FAILED TO COMPLY WITH THE REQUIREMENTS ON THE APPROPRIATE SWORN CERTIFICATION ON FORUM-SHOPPING TO BE SUBMITTED TOGETHER WITH THE PETITION FOR CERTIORARI, THAT WOULD CALL FOR THE EXERCISE BY THIS HONORABLE SUPREME COURT OF ITS POWER OF SUPERVISION.
(B)
THE COURT OF APPEALS HAS FAILED IN ITS DUTY TO DETERMINE THAT RESPONDENTS HAVE VIOLATED THE CERTIFICATION ON NON-FORUM SHOPPING, BY REFUSING AND FAILING TO DISCLOSE THE PENDING INVESTIGATION BEING CONDUCTED BY THE NLRC ON THE RESPONDENTS' MANIPULATION OF THE MAILING OF THEIR MOTION FOR RECONSIDERATION BELOW, THAT WOULD CALL FOR THE EXERCISE BY THIS HONORABLE SUPREME COURT OF ITS POWER OF SUPERVISION.
(C)
THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT PETITIONER WAS NOT ILLEGALLY DISMISSED, DESPITE THE EXISTENCE OF EVIDENCE INDICATING THE CONSTRUCTIVE DISMISSAL BY REASON OF CLEAR DISCRIMINATION, INSENSIBILITY OR DISDAIN COMMITTED BY THE EMPLOYER AGAINST THE PETITIONER. 16
Before delving into the merits of the instant case, the Court shall first resolve petitioner's claim that respondents are guilty of forum shopping having failed to comply with the required form of the certification, as prescribed 17 by the Rules of Court, and to disclose the pendency of an investigation being conducted by the NLRC with regard to the allegation of manipulation and/or tampering in the mailing of respondents' motion for reconsideration.
The Court is not convinced.
Forum shopping exists when a party repetitively avails himself of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in, or already resolved adversely by, some other court. 18
The elements of forum shopping are: (1) identity of parties, or at least such parties as represent the same interests in both actions; (2) identity of rights asserted and reliefs prayed for, the relief being founded on the same set of facts; and (3) the identity of the two preceding particulars, such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration. 19
There was no confluence of the foregoing elements in the instant case. Records show that when respondents filed their petition for certiorari before the CA, their motion for reconsideration before the NLRC had already been resolved on the merits, and the only incident left for the NLRC to adjudicate was the alleged mail tampering of respondents. The pendency of such investigation, however, is merely incidental, such that its resolution will not amount to res judicata in the petition for certiorari before the CA. Be that as it may, the Court examined the certification on forum shopping 20 attached to respondents' petition for certiorari before the CA, and found the same to have substantially complied with the requirements under the rules.
On the merits, the Court finds petitioner's arguments meritorious.
At the outset, it must be pointed out that the main issue in this case involves a question of fact. It is an established rule that the jurisdiction of the Supreme Court in cases brought before it from the CA via Rule 45 of the 1997 Rules of Civil Procedure is generally limited to reviewing errors of law. This Court is not a trier of facts. In the exercise of its power of review, the findings of fact of the CA are conclusive and binding and consequently, it is not our function to analyze or weigh evidence all over again. 21
This rule, however, is not ironclad. One of the recognized exceptions is when there is a divergence between the findings of facts of the NLRC and that of the CA, 22 as in this case. There is, therefore, a need to review the records to determine which of them should be preferred as more conformable to evidentiary facts. 23
After a judicious scrutiny of the records, the allegations of petitioner and the defenses raised by respondents, the Court cannot sustain the finding of the CA that petitioner was not illegally or constructively dismissed.
Constructive dismissal is defined as a quitting because continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank or a diminution of pay. 24
The test of constructive dismissal is whether a reasonable person in the employee's position would have felt compelled to give up his position under the circumstances. It is an act amounting to dismissal but is made to appear as if it were not. Constructive dismissal is therefore a dismissal in disguise. The law recognizes and resolves this situation in favor of employees in order to protect their rights and interests from the coercive acts of the employer. 25
As held in the case of Coca-Cola Bottlers Philippines, Inc. vs. Del Villar, 26 the burden falls upon the company to prove that the employee's assignment from one position to another was not tantamount to constructive dismissal. In the case at bar, respondents failed to discharge said burden. In fact, respondents never even disputedthat petitioner was relegated from the position of OIC to supervisor and, subsequently, to an ordinary technician. Clearly, the reduction in petitioner's responsibilities and duties, particularly from supervisor to ordinary technician, constituted a demotion in rank tantamount to constructive dismissal.
Thus, contrary to the position of the CA, it is of no consequence that petitioner failed to substantiate his allegation that Loida Aquino, an employee of respondent company, informed him that he will be working as an ordinary technician, and that when he openly voiced out his concern regarding the transfer, he was told not to report for work anymore. As with all the other allegations made by petitioner, respondents never disputed or rebutted this fact.
Similarly, We cannot concur with the finding of the CA that it was petitioner who abandoned his employment by failing to report for work or having gone AWOL.
Abandonment is the deliberate and unjustified refusal of an employee to resume his employment. 27 To constitute abandonment of work, two elements must concur: (1) the employee must have failed to report for work or must have been absent without valid or justifiable reason; and (2) there must have been a clear intention on the part of the employee to sever the employer-employee relationship manifested by some overt act. 28 The employer bears the burden of proof to show the deliberate and unjustified refusal of the employee to resume his employment without any intention of returning. 29
In the case of Hodieng Concrete Products, Inc. v. Emilia 30 , citing Samarca v. Arc- Men Industries, Inc. 31 , the Court has ruled thus:
x x x. Absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore. And the burden of proof to show that there was unjustified refusal to go back to work rests on the employer.
x x x
Abandonment is a matter of intention and cannot lightly be presumed from certain equivocal acts. To constitute abandonment, there must be clear proof of deliberate and unjustified intent to sever the employer-employee relationship. Clearly, the operative act is still the employees ultimate act of putting an end to his employment.
Settled is the rule that mere absence or failure to report for work is not tantamount to abandonment of work. x x x. (Emphasis supplied)
In this case, petitioner's failure to report for work was caused by the unwarranted demotion in rank that was imposed upon him by respondents, not by any intention to sever employment ties with them. And his filing of the instant complaint for illegal dismissal indubitably negates the allegation of abandonment. Had petitioner intended to forsake his job, then he would not have found it necessary to institute this case against respondents.
In sum, the CA committed reversible error when it held that petitioner was not illegally or constructively dismissed. With respect to the investigation being conducted by the NLRC regarding the alleged tampering and/or manipulation of the mailing of respondents' motion for reconsideration filed before it, the Court no longer finds it necessary to pass upon the same.
WHEREFORE, the instant petition is GRANTED. The assailed Decision and Resolution of the CA are SET ASIDE. The Resolutions of the NLRC affirming the Decision of the Labor Arbiter are REINSTATED. Petitioner is entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits computed from the time his compensation was withheld from him or on April 4, 2003, up to the time of his actual reinstatement, in accordance with Article 279 32 of the Labor Code.
SO ORDERED.
NIPPON HOUSING PHIL. INC VS. MAIAH ANGELA LEYNES AUG. 3, 2011 The Courts Ruling
We find the petition impressed with merit.
Petitioners argue that the CA erred in finding that Leynes was constructively dismissed when she was placed on floating status prior to her termination from employment on the ground of redundancy. Maintaining that the employees right to security of tenure does not give him a vested right thereto as would deprive the employer of its prerogative to change his assignment or transfer him to where he will be most useful, petitioners call our attention to the supposed fact that Leynes was unacceptable to BGCC which had a contractually guaranteed right to ask for her relief. Rather than outrightly terminating Leynes employment as a consequence of her threats to resign from her position, moreover, petitioners claim that she was validly placed on floating status pursuant to Article 286 of the Labor Code of the Philippines which provides as follows:
Art. 286. When employment not deemed terminated. The bona fide suspension of the operation of a business undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a civic duty shall not terminate employment. In all such cases the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty.
Although the CA correctly found that the record is bereft of any showing that Leynes was unacceptable to BGCC, the evidence the parties adduced a quoclearly indicates that petitioners were not in bad faith when they placed the former under floating status. Disgruntled by NHPIs countermanding of her decision to bar Engr. Cantuba from the Project, Leynes twice signified her intention to resign from her position to Ota on 12 February 2002. Upon receiving the copy of the memorandum issued for Engr. Cantubas return to work, Leynes inscribed thereon the following handwritten note addressed to Ota, Good Morning! Im sorry but I would like to report to you my plan of resigning as your Prop. Manager. Thank You. [27] In her application letter for an immediate emergency leave, [28] Leynes also distinctly expressed her dissatisfaction over NHPIs resolution of her dispute with Engr. Cantuba and announced her plan of coordinating with her lawyer regarding her resignation letter, to wit:
This is in line with the Management decision re: Return to work order of Mr. Honesto Cantuba at Bay Gardens. I would like to express my deepest disappointed (sic) for having received this kind of decision from Nippon Housing Philippines, Inc.
Mr. Ota, I have been working with NHPI, as your Building Property Manager, for almost a year now. I had exerted all my effort to set-up the Property Management, experienced each and every pain and sacrifice[d] everything before we were able to get the Bay Gardens project. Mr. Hiro Matsumoto, Hiroshi Takada and Yasuhiro Kawata had witnessed these things.
Given your decision, I am respecting this. The most painful thing for me is that the management did not value my effort for what I have done to the Company.
I am therefore submitting my letter for emergency leave of absence starting today, while I am still coordinating with my Lawyer re: my resignation letter.
Thank you for your support. [29]
In view of the sensitive nature of Leynes position and the critical stage of the Projects business development, NHPI was constrained to relay the situation to BGCC which, in turn, requested the immediate adoption of remedial measures from Takada, including the appointment of a new Property Manager for the Project. Upon BGCCs recommendation, [30] NHPI consequently hired Engr. Jose on 13 February 2002 as Leynes replacement. [31] Far from being the indication of bad faith the CA construed the same to be, these factual antecedents suggest that NHPIs immediate hiring of Engr. Jose as the new Property Manager for the Project was brought about by Leynes own rash announcement of her intention to resign from her position. Although she subsequently changed her mind and sent Reyes a letter by telefax on 13 February 2002 announcing the reconsideration of her planned resignation and her intention to return to work on 15 February 2002, [32] Leynes evidently had only herself to blame for precipitately setting in motion the events which led to NHPIs hiring of her own replacement.
Acting on Leynes 20 February 2002 letter protesting against the hiring of her replacement and reiterating her lack of intention to resign from her position, [33] the record, moreover, shows that NHPI simply placed her on floating status until such time that another project could be secured for her. [34] Traditionally invoked by security agencies when guards are temporarily sidelined from duty while waiting to be transferred or assigned to a new post or client, [35] Article 286 of the Labor Code has been applied to other industries when, as a consequence of the bona fide suspension of the operation of a business or undertaking, an employer is constrained to put employees on floating status for a period not exceeding six months. [36] In brushing aside respondents reliance on said provision to justify the act of putting Leynes on floating status, the CA ruled that no evidence was adduced to show that there was a bona fidesuspension of NHPIs business. What said court clearly overlooked, however, is the fact that NHPI had belatedly ventured into building management and, with BGCC as its only client in said undertaking, had no other Property Manager position available to Leynes.
Considering that even labor laws discourage intrusion in the employers judgment concerning the conduct of their business, courts often decline to interfere in their legitimate business decisions, [37] absent showing of illegality, bad faith or arbitrariness. Indeed, the right of employees to security of tenure does not give them vested rights to their positions to the extent of depriving management of its prerogative to change their assignments or to transfer them. [38] The record shows that Leynes filed the complaint for actual illegal dismissal from which the case originated on 22 February 2002 or immediately upon being placed on floating status as a consequence of NHPIs hiring of a new Property Manager for the Project. The rule is settled, however, that "off-detailing" is not equivalent to dismissal, so long as such status does not continue beyond a reasonable time and that it is only when such a "floating status" lasts for more than six months that the employee may be considered to have been constructively dismissed. [39] A complaint for illegal dismissal filed prior to the lapse of said six-month and/or the actual dismissal of the employee is generally considered as prematurely filed. [40]
Viewed in the light of the foregoing factual antecedents, we find that the CA reversibly erred in holding petitioners liable for constructively dismissing Leynes from her employment. There is said to be constructive dismissal when an act of clear discrimination, insensitivity or disdain on the part of the employer has become so unbearable as to leave an employee with no choice but to forego continued employment. [41] Constructive dismissal exists where there is cessation of work because continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank and a diminution in pay. [42] Stated otherwise, it is a dismissal in disguise or an act amounting to dismissal but made to appear as if it were not. [43] In constructive dismissal cases, the employer is, concededly, charged with the burden of proving that its conduct and action or the transfer of an employee are for valid and legitimate grounds such as genuine business necessity. [44] To our mind, respondents have more than amply discharged this burden with proof of the circumstances surrounding Engr. Carlos employment as Property Manager for the Project and the consequent unavailability of a similar position for Leynes.
With no other client aside from BGCC for the building management side of its business, we find that NHPI was acting well within its prerogatives when it eventually terminated Leynes services on the ground of redundancy. One of the recognized authorized causes for the termination of employment, redundancy exists when the service capability of the workforce is in excess of what is reasonably needed to meet the demands of the business enterprise. [45] A redundant position is one rendered superfluous by any number of factors, such as overhiring of workers, decreased volume of business, dropping of a particular product line previously manufactured by the company or phasing out of service activity priorly undertaken by the business. [46] It has been held that the exercise of business judgment to characterize an employees service as no longer necessary or sustainable is not subject to discretionary review where, as here, it is exercised there is no showing of violation of the law or arbitrariness or malice on the part of the employer. [47] An employer has no legal obligation to keep more employees than are necessary for the operation of its business. [48]
Considering that Leynes was terminated from service upon an authorized cause, we find that the CA likewise erred in faulting NHPI for supposedly failing to notify said employee of the particular act or omission leveled against her and the ground/s for which she was dismissed from employment. Where dismissal, however, is for an authorized cause like redundancy, the employer is, instead, required to serve a written notice of termination on the worker concerned and the DOLE, at least one month from the intended date thereof. [49] Here, NHPI specifically made Leynes termination from service effective 22 August 2002, but only informed said employee of the same on 8 August 2002 [50] and filed with the DOLE the required Establishment Termination Report only on 16 August 2002. [51] For its failure to comply strictly with the 30-day minimum requirement for said notice and effectively violating Leynes right to due process, NHPI should be held liable to pay nominal damages in the sum of P50,000.00. The penalty should understandably be stiffer because the dismissal process was initiated by the employer's exercise of its management prerogative. [52]
Having been validly terminated on the ground of redundancy, Leynes is entitled to separation pay equivalent to one month salary for every year of service but not to the backwages adjudicated in her favor by the Labor Arbiter. [53] Hired by NHPI on 26 March 2001 and terminated effective 22 August 2002, Leynes is entitled to a separation pay in the sum of P40,000.00, in addition to her last pay which, taking into consideration her proportionate 13 th month pay, tax refund and SILP, was computed by NHPI at P28,188.16. [54] For lack of showing of bad faith, malice or arbitrariness on the part of NHPI, there is, however, no justifiable ground for an award of moral and exemplary damages. [55] For lack of factual or legal bases, we find no cause to award attorneys fees in favor of Leynes. In the absence of the same showing insofar as NHPIs corporate officers are concerned, neither is there cause to hold them jointly and severally liable for the above-discussed monetary awards.
WHEREFORE, premises considered, the petition is GRANTED and the assailed 23 November 2006 Decision is, accordingly, REVERSED and SET ASIDE. In lieu thereof, another is entered ordering NHPI to pay Leynes the following sums: (a) P40,000.00 as separation pay; (b) P28,188.16 representing her unpaid wages, proportionate 13 th month pay, tax refund and SILP; and (c) P50,000.00 by way of nominal damages.
1. GROUNDS 2. DURATION 3. EXTENSION Sections 3 and 4, Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code, Termination of Employment, provide: Sec. 3. Preventive suspension. The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. Sec. 4 Period of suspension. No preventive suspension shall last longer than 30 days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position of the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker
*****if suspended on july 1, resum on july 31. *****preventive suspension distinguished from suspension as a form of penalty. When after findings suspension cannot be validly extended. JRS BUSINESS CORP VS. NLRC JULY 17, 1995 Also presented as an issue was petitioner's directive to private respondent of October 12, 1988 to go on leave without pay to pave the way for the investigation of the charges against him. Sections 3 and 4, Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code, Termination of Employment, provide: Sec. 3. Preventive suspension. The employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to the life or property of the employer or of his co-workers. Sec. 4 Period of suspension. No preventive suspension shall last longer than 30 days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position of the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker. Petitioner having violated the maximum 30-day preventive suspension under Section 4, Rule XIV, Book of the Omnibus Rules Implementing the Labor Code, a sanction is imposed on him in consonance with our ruling in Great Pacific Life Assurance Corporation v. National Labor Relations Commission, 187 SCRA 694 (1990). Petitioner must indemnify private respondent in the amount of One Thousand Pesos (P1,000.00).
GANDARA SUPPLY VS NLRC DEC. 29, 1998 After a careful study, and a thorough examination of the pleadings and supporting documents, it appears decisively clear that private respondent Silvestre Germano was illegally dismissed. While a prolonged absence without leave may constitute as a just cause of dismissal, its illegality stems from the non-observance of due process. Applying the WenPhil Doctrine by analogy, where dismissal was not preceded by the twin requirement of notice and hearing, the legality of the dismissal in question, is under heavy clouds and therefore illegal. While it cannot be deduced unerringly from the records on hand that private respondent was really dismissed, there is no clear indication that the latter was to be reinstated. In fact, since the inception of the case, what petitioner merely endeavored was to compromise for a measly sum of P5,000.00, and no mention of taking respondent back to his job was ever offered as part of the deal to end the controversy. No preventive suspension shall last longer than thirty (30) days. The employer shall thereafter reinstate the worker to his former or substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides after completion of the hearing to dismiss the worker. [5]
In this case, the supposed suspension was expected to last for more than the period allowed by law, thus making the suspension constitutive of an illegal dismissal. Therefore, the Labor Arbiters contention is upheld by the Court.
ATLAS FERTILIAER CORP VS. NLRC JUNE 17, 1997 Preventive suspension is a disciplinary measure for the protection of the company's property pending investigation of any alleged malfeasance or misfeasance committed by the employee. [15] Section 3, Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code provides: Sec. 3. Preventive Suspension. The employer may place the worker concerned under preventive suspension if his continued employment poses a serious threat to the life or property of the employer or of his co-workers. Nothing in this rule requires that the report upon which the preventive suspension was based should make a specific finding that the employee's continued employment poses an imminent threat to the property of the employer. It is enough that such fact can be gleaned from the circumstances of the case. In the present case, the audit showed that the transactions entered into by the private respondents were tainted with irregularities. Considering such irregularities and the undisputed fact that the purchases made by the respondent employees amounted to approximately P600 million annually, there can be no shred of doubt that the respondents' continuance in the service would pose a serious threat to the property of petitioner AFC. As feared by the petitioners, the respondent employees were in "a position to cause substantial prejudice to petitioners arising from their misconduct, such as their continuous disregard of the purchasing policies resulting in the unauthorized delivery of goods in the absence of the required purchase orders, confirmation of other questionable transactions and the opportunity to change and manipulate records to suit their personal objectives." [18]
In a nutshell, the private respondents' preventive suspension was necessary for the protection of petitioner AFC's assets and operations pending investigation of the alleged irregularities committed by them. The private respondents capitalize on the fact that they were given access to company records, which, according to them, was an indication that their presence did not pose a threat to petitioner AFC's property. They seem to be unmindful of the fact that such privilege was accorded them to enable them to explain the charges against them. Besides, the exercise of such privilege was under the supervision of the company's audit personnel. We now come to the second and third assigned errors, which boil down to the issue of whether the petitioners' loss of trust and confidence in the private respondents was founded on facts established by substantial evidence. The Labor Arbiter resolved this issue in the affirmative. Deeply embedded in our jurisprudence is the rule that the findings of facts of quasi-judicial bodies like the NLRC are accorded great respect and, at times, even finality. There are, however, exceptions, among which is when there is a conflict between the factual findings of the NLRC and the Labor Arbiter. [19] We are more in accord with the findings of the Labor Arbiter. The basic premise for dismissal on the ground of loss of confidence is that the employee concerned holds a position of trust and confidence. [20] In the instant case, the private respondents are purchasers of materials and supplies needed for petitioner AFC's operations. Concededly, the transactions they entered into involved a gargantuan amount of money, i.e., more or less P600 million annually. Their Job Identification requires "integrity and confidentiality." [21] Hence, there can be no denying that the respondents' position is vested with a high degree of trust and confidence. As a general rule, employers are allowed a wider latitude of discretion in terminating the services of employees who perform functions which by their nature require the employers' full trust and confidence. [22] Mere existence of basis for believing that the employee has breached the trust of the employer is sufficient and does not require proof beyond reasonable doubt. [23] Thus, when an employee has been guilty of breach of trust or his employer has ample reason to distrust him, a labor tribunal cannot deny the employer the authority to dismiss him. [24] This brings us to the issue of whether the petitioners' loss of trust and confidence in the respondent employees rested on some basis. While there was a Draft Purchasing Manual at the time the respondent employees entered into the questioned transactions, the same was apparently not approved yet. Nevertheless, the private respondents admit that canvassing or bidding was part of the purchasing procedure handed down by their predecessors in the procurement of materials and supplies. Yet, most of the transactions entered into by the respondent employees from September 1991 to February 1992 lacked canvass or bidding. They tried to justify such lack by claiming that some of the transactions were emergency in nature. But, the records reveal that only a very few of the requisitions were marked urgent. These irregular acts, which have been proved by substantial evidence, constitute reasonable basis for the petitioners to loss their trust and confidence in the respondent employees. Premises considered, we find that the private respondents are indeed unfit to continue working for the petitioner AFC. We agree with the Labor Arbiter that it would be an act of oppression to compel the petitioners to retain the respondent employees. CHONA TORRES VS NLRC APRIL 12, 2000 Execution is the final stage of litigation, the end of the suit. It can not be frustrated except for serious reasons demanded by justice and equity. [16] In this jurisdiction, the rule is that when a judgment becomes final and executory, it is the ministerial duty of the court to issue a writ of execution to enforce the judgment. A writ of execution may however be refused on equitable grounds as when there was a change in the situation of the parties that would make execution inequitable or when certain circumstances, which transpired after judgment became final, rendered execution of judgment unjust. [17] The fact that the decision has become final does not preclude a modification or an alteration thereof because even with the finality of judgment, when its execution becomes impossible or unjust, it may be modified or altered to harmonize the same with justice and the facts. [18]
The respondent agency's contention that there has been a change in the situation of the parties making execution inequitable because petitioner accepted employment from another agency without resigning from it is patently without merit. In the recent ruling of the Court, we said that the rule enunciated in Pines City [19] no longer controls. Now, the rule is that back wages awarded to an illegally dismissed employee shall not be diminished or reduced by the earnings derived by him elsewhere during the period of his illegal dismissal. [20]
In this particular case, the decision is final and, in fact, the amount of P 105,396.00 representing the sum total of the salary differentials and back wages awarded to petitioner has been garnished from the account of respondent agency with the Philippine National Bank (PNB) with no opposition or resistance and it is the ministerial duty of the Labor Arbiter to release the money to petitioner. JOSE P ARTIFICIO VS NLRC JULY 26, 2010 Artificio maintains that he was illegally suspended since his preventive suspension was for an indefinite period and was imposed without investigation. He also argues that he was illegally dismissed because the charges against him were couched in general and broad terms. Further, he was not given any notice requiring him to explain his side.
Respondents counter that Artificio was not dismissed but merely placed under preventive suspension pending investigation of the charges against him.
As succinctly stated above, preventive suspension is justified where the employees continued employment poses a serious and imminent threat to the life or property of the employer or of the employees co-workers. Without this kind of threat, preventive suspension is not proper. [19]
In this case, Artificios preventive suspension was justified since he was employed as a security guard tasked precisely to safeguard respondents client. His continued presence in respondents or its clients premises poses a serious threat to respondents, its employees and client in light of the serious allegation of conduct unbecoming a security guard such as abandonment of post during night shift duty, light threats and irregularities in the observance of proper relieving time.
As already mentioned, after Artificio was placed under preventive suspension on 29 July 2002, he forthwith, or on 5 August 2002, filed a complaint for illegal dismissal and illegal suspension. From that date until the present, he has insisted on his submission that he was illegally dismissed and that he is not seeking reinstatement as in fact right from the start, his prayer was for separation pay. Having determined that the imposition on Artificio of preventive suspension was proper and that such suspension did not amount to illegal dismissal, we see no basis for the grant of backwages.
Nonetheless, given the attendant circumstances in this case, namely, that Artificio had been working with the company for a period of sixteen (16) years and without any previous derogatory record, the ends of social and compassionate justice would be served if Artificio be given some equitable relief in the form of separation pay. [22]
Artificio is entitled to separation pay considering that while reinstatement is an option, Artificio himself has never, at anytime after the notice of preventive suspension intended to remain in the employ of private respondents.
BLUE SKY TRADING COMPANY VS ARLENE BLAS MARCH 7, 2012 LOSS OF CONFIDENCE It is immaterial that Arlene and Joseph were not among those who were entrapped attempting to sell an ultrasound probe to a police operative. The nature of their tasks at Blue Sky and the fact of loss of the intensifying screens dictated Arlene and Joseph's liabilities. Arlene's daily work routine involved (a) receiving and releasing of stocks; and (b) preparing stock cards for purposes of checking and monitoring the items in the warehouse. On the other hand, Joseph carried and moved stocks in and out of the warehouse. The six intensifying screens were discovered missing while Arlene, Joseph, Helario, Jayde and Wilfredo were supposedly performing their tasks, hence, the logical inference that they conspired to commit the theft or at least, knowingly allowed it to happen. Had the employees exercised due or even ordinary diligence to protect company property, no loss would have been incurred. Further, the defense interposed by Arlene in her written explanation that she was not employed by Blue Sky as a security guard, showed her utter lack of concern for the company's welfare, which rendered her undeserving of an employer's trust and confidence. Substantial evidence of actual breach by an employee is required from an employer to be able to justify the former's dismissal from service on the basis of an alleged participation in theft of company property. However, in the case at bar, Blue Sky had failed to discharge the burden of proof imposed upon It. We note that the petitioners essentially raise the sole question of whether they had proven by substantial evidence the charges of theft against Arlene and Joseph which led to the latter's termination from service on the ground of loss of trust and confidence.
We rule in the negative. In the case at bar, we agree with the petitioners that mere substantial evidence and not proof beyond reasonable doubt is required to justify the dismissal from service of an employee charged with theft of company property. However, we find no error in the CA's findings that the petitioners had not adequately proven by substantial evidence that Arlene and Joseph indeed participated or cooperated in the commission of theft relative to the six missing intensifying screens so as to justify the latter's termination from employment on the ground of loss of trust and confidence. During the entrapment operation conducted by police operatives, Jayde and Helario were caught attempting to sell an ultrasound probe allegedly belonging to Blue Sky. Thereafter, Jayde, Helario and Wilfredo withdrew their complaints for illegal dismissal against the company. Arlene and Joseph, however, pursued their claims. Nonetheless, Blue Sky construed the result of the entrapment operation to mean that there was a conspiracy among the five employees to commit theft of company property. Only the following had been established without dispute: (a) the fact of loss of the six intensifying screens; (b) an entrapment operation was successfully conducted by the police operatives who caught Jayde and Helario in the act of attempting to sell an ultrasound probe which allegedly belonged to Blue Sky; and (c) Jayde, Helario and Wilfredo filed their affidavits of desistance to withdraw their complaints for illegal dismissal against Blue Sky while Arlene and Joseph pursued their complaints. While we empathize with Blue Sky's loss and understand that its actions were merely motivated by its intent to protect the interests of the company, no blanket authority to terminate all employees whom it merely suspects as involved in the commission of theft resides in its favor.
Blue Sky committed no impropriety in imposing preventive suspension against Arlene and Joseph pending investigation of the theft allegedly committed against the company We, however, find no merit in the challenge made by Arlene and Joseph against the legality of the preventive suspension imposed by Blue Sky upon them pending the investigation of the alleged theft. In Arlene and Joseph's case, Blue Sky issued to them notices to explain on February 3, 2005. They submitted their written explanation the day after and they were dismissed from service on February 5, 2005. While we do not agree with Blue Sky's subsequent decision to terminate them from service, we find no impropriety in its act of imposing preventive suspension upon the respondents since the period did not exceed the maximum imposed by law and there was a valid purpose for the same. In lieu of reinstatement, Arlene and Joseph are entitled to an award of separation pay. Arlene and Joseph are entitled to the payment of ECOLA, but not to 13 th month, service incentive leave and overtime pay. Anent the respondents' claim for overtime pay, we find no ample basis to grant it as they had not offered any proof to show that they in fact rendered such service. IV- TERMINATION OF EMPLOYMENT A. REQUISITES FOR A VALID DISMISSAL SECT. 1 ART. II OF THE 1987 CONSTITUTION ART. 277 LCP
BOOK SIX POST EMPLOYMENT Title I TERMINATION OF EMPLOYMENT Article 278. Coverage. The provisions of this Title shall apply to all establishments or undertakings, whether for profit or not. Article 279. Security of tenure. In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (As amended by Section 34, Republic Act No. 6715, March 21, 1989) Article 280. Regular and casual employment. The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the 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 seasonal in nature and the employment is for the duration of the season. An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists. Article 281. Probationary employment. Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee. Article 282. Termination by employer. An employer may terminate an employment for any of the following causes: Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; Gross and habitual neglect by the employee of his duties; Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and Other causes analogous to the foregoing. Article 283. Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year. Article 284. Disease as ground for termination. An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided, That he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year. Article 285. Termination by employee. An employee may terminate without just cause the employee-employer relationship by serving a written notice on the employer at least one (1) month in advance. The employer upon whom no such notice was served may hold the employee liable for damages. An employee may put an end to the relationship without serving any notice on the employer for any of the following just causes: Serious insult by the employer or his representative on the honor and person of the employee; Inhuman and unbearable treatment accorded the employee by the employer or his representative; Commission of a crime or offense by the employer or his representative against the person of the employee or any of the immediate members of his family; and Other causes analogous to any of the foregoing. Article 286. When employment not deemed terminated. The bona-fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty.
A. SUBSTANTIAL EVIDENCE Preliminarily, the Labor Code provides that an employer may terminate the services of an employee for just cause and this must be supported by substantial evidence. [17] The settled rule in administrative and quasi- judicial proceedings is that proof beyond reasonable doubt is not required in determining the legality of an employers dismissal of an employee, and not even a preponderance of evidence is necessary as substantial evidence is considered sufficient. (SALVADOR VS PHILIPPINE MINING SERVICES CORP) *****Substancial evidence defined by rules of court ****Procedural, on how to terminate: 1. Just cause 2. Due process Opportunity to explain notice
SALVADOR VS PHILIPPINE MINING SERVICES CORP Preliminarily, the Labor Code provides that an employer may terminate the services of an employee for just cause and this must be supported by substantial evidence. [17] The settled rule in administrative and quasi- judicial proceedings is that proof beyond reasonable doubt is not required in determining the legality of an employers dismissal of an employee, and not even a preponderance of evidence is necessary as substantial evidence is considered sufficient. [18] Substantial evidence is more than a mere scintilla of evidence or relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise. [19] Thus, substantial evidence is the least demanding in the hierarchy of evidence. In the case at bar, our evaluation of the evidence of both parties indubitably shows that petitioners dismissal for loss of trust and confidence was duly supported by substantial evidence. First. At the time Sawa saw petitioner hauling fine ore from the stockpile, Sawa had no idea yet that pilferage was being committed by petitioner Upon the other hand, a number of disturbing circumstances disproved petitioners version of the incident and substantially proved his act of pilferage. We reiterate that proof beyond reasonable doubt of the employees misconduct or dishonesty is not required to justify loss of confidence. It is sufficient that there is substantial basis for the loss of trust. [21] In the case at bar, respondent has proved by substantial evidence the charge of pilferage against petitioner. Finally, petitioner argues that assuming there was evidence to support the charges against him, his dismissal from service is unwarranted, harsh and grossly disproportionate to his act, considering his long years of service with the company. To be sure, length of service is taken into consideration in imposing the penalty to be meted an erring employee. However, the case at bar involves dishonesty and pilferage by petitioner which resulted in respondents loss of confidence in him. Unlike other just causes for dismissal, trust in an employee, once lost is difficult, if not impossible, to regain. Moreover, petitioner was not an ordinary rank-and-file employee. He occupied a high position of responsibility. As foreman and shift boss, he had over-all control of the care, supervision and operations of respondents entire plant
SEVILLANA VS IT INTL CORP VS NLRC- APRIL 16, 2001 As regards the issue of petitioner's dismissal from employment, petitioner claims that he was illegally dismissed; that respondent I.T. failed to substantiate its claim that petitioner was repatriated because he (petitioner) was found to have hypertension; and that respondent I.T. has the burden of proving that petitioner was legally dismissed. Thus, it is clear that petitioner was illegally dismissed by private respondent Samir Maddah. [22]
Time and again we have ruled that where there is no showing of a clear, valid and legal cause for termination of employment, the law considers the case a matter of illegal dismissal. The burden is on the employer to prove that the termination of employment was for a valid and legal cause. For an employee's dismissal to be valid, (a) the dismissal must be for a valid cause and (b) the employee must be afforded due process. [23]
A review of the record shows that neither of the two (2) conditions precedent were shown to have been complied with by the private respondents. All that private respondent I.T.did was to rely on its claim that petitioner was repatriated by its foreign principal, respondent Samir Maddah, due to hypertension with nary an evidence to support it. In all termination cases, strict compliance by the employer with the demands of both procedural and substantive due process is a condition sine qua non for the same to be declared valid. [24] Under Section 8, Rule I, Book VI of the Rules and Regulations implementing the Labor Code, for a disease to be a valid ground for the dismissal of the employee, the continued employment of such employee is prohibited by law or prejudicial to his health or the health of his co- employees, there must be a certification by a competent public health authority that the disease is of such nature or at such a stage that it cannot be cured within a period of six (6) months, even with proper medical treatment. The defense of complainant's medical problems (alleged hypertension of complainant) interposed by respondents to justify the dismissal of the former is totally bereft of merit. The said defense of respondents is not only uncorroborated by documentary evidence but is also not a just or valid cause for termination of one's employment. While an employer (respondents in this case) may validly terminate the services of an employee who has been found to be suffering from any disease, it is authorized only if his continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees (Art. 284, Labor Code). This is not present in the instant case, for there is no finding from a medical practitioner certifying that complainant is really hypertensive." [25]
Since the burden of proving the validity of the dismissal of the employee rests on the employer, the latter should likewise bear the burden of showing that the requisites for a valid dismissal due to a disease have been complied with. In the absence of the required certification by a competent public health authority, this Court has ruled against the validity of the employees dismissal. [26]
"As a general rule, one who pleads payment has the burden of proving it. Even where the plaintiff must allege non-payment, the general rule is that the burden rests on the defendant to prove payment, rather than on the plaintiff to prove non-payment. The debtor has the burden of showing with legal certainty that the obligation has been discharged by payment."
MILLARES VS PLDT MAY 6, 2005 The fundamental issue here is whether respondent company was able to prove by substantial evidence that petitioner is liable for gross misconduct by demanding from Celestina Ignacio a service fee of P3,800.00 for the installation of a telephone line. The issue raised is factual. It is basic that the findings of fact by the Court of Appeals, when supported by substantial evidence, are conclusive and binding upon the parties and are not reviewable by this Court, unless the case falls under any of the exceptions to the rule, such as when the findings by the Appellate Court are not supported by evidence. [3] This exception is being relied upon by petitioner. Here, we find there is substantial evidence to support the findings of the Court of Appeals that petitioners dismissal from the service is valid. Well- entrenched is the rule that substantial proof is sufficient as basis for the imposition of any disciplinary action upon the employee. The standard of substantial evidence is satisfied where the employer, as in this case, has reasonable ground to believe that the employee is responsible for the misconduct and his participation therein renders him unworthy of trust and confidence demanded by his position. [4] That petitioner violated respondent PLDTs rules and regulations and committed serious misconduct in the performance of his duties, have been proved by Celestina Ignacio. Respondent thus lost its trust and confidence in petitioner. Under Article 282 of the Labor Code, as amended, these are just causes for dismissing him from the service. Retractions are frowned upon by the courts. A retraction of a testimony is exceedingly unreliable, for there is always the probability that it may later on be repudiated. Courts look with disfavor upon retractions, because they can easily be obtained from witnesses through intimidation or for monetary consideration. A retraction does not necessarily negate an earlier declaration. [5]
Finally, there is no cogent reason why we should not accord deference and finality to the Appellate Courts finding that petitioner was accorded his right to due process. In Santos vs. San Miguel Corporation, [6] we reiterated the well-entrenched rule that (p)rocedural due process requires the employer to give the employee two notices. First is the notice apprising him of the particular acts or omissions for which his dismissal is sought. Second is the subsequent notice informing him of the employers decision to dismiss him. In the case at bar, respondent company sent petitioner the required notices. Clearly, he was not deprived of his right to due process.
PHILTREAD TIRE & RUBBER CORP. VS ALBERTO VICENTE NOV. 10, 2004 Here, there is neither direct nor documentary evidence to prove that respondent was involved in extortion. In fact, a careful perusal of the minutes of the investigation reveals that Avis did not categorically state that he was pressured by respondent to overprice his service fee. As gleaned from the above minutes, it is not clear that respondent urged or forced Avis to increase his service fee by P1,000.00 and to give the amount to him (respondent). In fact, Avis is not certain whether respondent was really serious when he allegedly told him (Avis) to increase his service fee toP4,800.00. We thus hold that petitioner failed to prove its charge by substantial evidence. Substantial evidence is that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. [6]
The Appellate Court did not err in concluding that there is no valid cause in terminating respondents employment. The well-established rule is that the findings of fact of the Court of Appeals, particularly where they are in absolute agreement with that of the NLRC, as in this case, are accorded not only great respect but even finality and are deemed binding upon this Court. [7]
Verily, respondent who was illegally dismissed from work is entitled to reinstatement without loss of seniority rights, full backwages, inclusive of allowances, and other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. [8]
However, the circumstances obtaining in this case do not warrant the reinstatement of respondent. Aside from the fact that antagonism caused a severe strain in the parties employer-employee relationship, petitioner company has completely ceased its tire manufacturing and marketing operations effective November 11, 1994, as evidenced by its Notice of Indefinite Suspension of Manufacturing Operations dated November 10, 1994 [9] to the Security and Exchange Commission and its Application for Business Retirement dated February 22, 1996 [10] filed with the Business Permits & Licensing Office of the City of Muntinlupa. Thus, a more equitable disposition would be an award of separation pay equivalent to at least one month pay, or one month pay for every year of service, whichever is higher, (with a fraction of at least six (6) months being considered as one (1) whole year), [11] in addition to his full backwages, allowances and other benefits. [12]
B. DUE PROCESS (NOTICE REQUIREMENT) Although the dismissal was for a cause, the employer therein was required to observe the standard of due process for termination of employment based on just causes under Article 282 of the Labor Code, which procedural due process requirements are enumerated in Section 2, Rule 1, Book VI [21] of the Omnibus Rules Implementing the Labor Code. [22] (DM CONSUNJI VS ANTONIO GOBRES) *****How notice is made? ****king of kings case *****can employee wave the right of due process? Yes ..technolift case As stated by the CA, the petitioner had failed to show that it had complied with the two-notice requirement: (a) a written notice containing a statement of the cause for the termination to afford the employee ample opportunity to be heard and defend himself with the assistance of his representative, if he so desires; (b) if the employer decides to terminate the services of the employee, the employer must notify him in writing of the decision to dismiss him, stating clearly the reason therefor. [15] (shoppes manila vs nlrc)
SHOPPES MANILA INC. VS. NLRC JAN 14, 2004 We agree with the CA that the petitioner did not have a vested right to a formal hearing simply and merely because LA Tumanong granted its motion and set the case for hearing. Pursuant to Section 5, Rule V of the New Rules of Procedure of the NLRC, [10] the labor arbiter has the authority to determine whether or not there is a necessity to conduct formal hearings in cases brought before him for adjudication. The holding of a formal hearing or trial is discretionary with the labor arbiter and is something that the parties cannot demand as a matter of right. It is entirely within his authority to decide a labor case before him, based on the position papers and supporting documents of the parties, without a trial or formal hearing. [11] The requirements of due process are satisfied when the parties are given the opportunity to submit position papers wherein they are supposed to attach all the documents that would prove their claim in case it be decided that no hearing should be conducted or was necessary. [12]
The order of LA Tumanong granting the petitioners motion for a hearing of the case was not conclusive and binding on LA Cuyuca who had the discretion either to hear the case before deciding it, or to forego with the hearing if, in her view, there was no longer a need therefor as the case could be resolved on its merits based on the records. Similarly, we affirm the finding of the CA that the private respondent was illegally dismissed. In order to effect a valid dismissal, the law requires that (a) there be just and valid cause as provided under Article 282 of the Labor Code; [13] and (b) the employee be afforded an opportunity to be heard and to defend himself. [14]
As stated by the CA, the petitioner had failed to show that it had complied with the two-notice requirement: (a) a written notice containing a statement of the cause for the termination to afford the employee ample opportunity to be heard and defend himself with the assistance of his representative, if he so desires; (b) if the employer decides to terminate the services of the employee, the employer must notify him in writing of the decision to dismiss him, stating clearly the reason therefor. [15]
VALIAO VS CA - JULY 30, 2004 DISMISSAL FOR JUST CAUSE Petitioner claims that his outright dismissal from employment was not valid and too harsh and that he was not dismissed from employment because of tardiness or absences but because he was among those apprehended in a raid. Also, he was not accorded due process because although his wife received the show cause notice, he did not have the proper mind to reply as he was in jail and was psychologically disturbed. Considering the submissions of the parties as well as the records before us, we find the petition without merit. Petitioners dismissal from employment is valid and justified. For an employees dismissal to be valid, (a) the dismissal must be for a valid cause and (b) the employee must be afforded due process. [7]
Serious misconduct and habitual neglect of duties are among the just causes for terminating an employee under the Labor Code of the Philippines. Gross negligence connotes want of care in the performance of ones duties. Habitual neglect implies repeated failure to perform ones duties for a period of time, depending upon the circumstances. [8] The Labor Arbiters findings that petitioners habitual absenteeism and tardiness constitute gross and habitual neglect of duties that justified his termination of employment are sufficiently supported by evidence on record. Petitioners repeated acts of absences without leave and his frequent tardiness reflect his indifferent attitude to and lack of motivation in his work. More importantly, his repeated and habitual infractions, committed despite several warnings, constitute gross misconduct unexpected from an employee of petitioners stature. This Court has held that habitual absenteeism without leave constitute gross negligence and is sufficient to justify termination of an employee. [9]
Indeed, even without the arrest incident, WNC had more than enough basis for terminating petitioner from employment. It bears stressing that petitioners absences and tardiness were not isolated incidents but manifested a pattern of habituality DUE PROCESS Still, petitioner claims that he was not afforded due process so that his dismissal from employment should be declared invalid. This contention deserves scant consideration. The Court of Appeals held that the records reveal that petitioner was afforded the twin requirements of notice and hearing and was likewise given the opportunity to defend himself before the investigating committee. In this case, petitioner was asked to explain his several absences and tardiness on many occasions. A notice to explain was sent to him regarding the arrest incident wherein he was able to reply. An investigation committee was formed by WNC to investigate the arrest incident and the absences and tardiness of petitioner. It must be emphasized that proceedings of the committee were duly recorded, and petitioner actively participated therein by answering the various questions interposed by the panel members. Finally, a notice of his termination was sent to petitioner, although he claims to have received it late as he was in jail. It is an undeniable fact, however, that his wife had actually received the notice in his house earlier, even before petitioners termination and this matter was later communicated to him. At any rate, petitioner was given enough opportunity to be heard, and his dismissal was based on valid grounds. The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, an opportunity to explain ones side or an opportunity to seek a reconsideration of the action or ruling complained of. A formal or trial-type hearing is not at all times and in all instances essential, as the due process requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is the absolute lack of notice and hearing. [17]
PREVENTIVE SUSPENSION Finally, the Labor Arbiter found that petitioner is entitled to salary differentials for the period of his preventive suspension, as there is no sufficient basis shown to justify his preventive suspension. During the pendency of the investigation, the employer may place the worker concerned under preventive suspension if his continued employment poses a serious and imminent threat to life or property of the employer or of his co- workers. [18] But in this case, there is no indication that petitioner posed a serious threat to the life and property of the employer or his co- employees. Neither was it shown that he was in such a position to unduly influence the outcome of the investigation. Hence, his preventive suspension could not be justified, and the payment of his salary differentials is in order. However, the award of attorneys fees to him cannot be sustained, in view of our findings that petitioner was validly dismissed from employment.
KING OF KINGS TRANSPORT VS SANTIAGO MAMAC JUNE 29, 2007
Non-compliance with the Due Process Requirements
Due process under the Labor Code involves two aspects: first, substantive the valid and authorized causes of termination of employment under the Labor Code; and second, proceduralthe manner of dismissal To clarify, the following should be considered in terminating the services of employees:
(1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. Reasonable opportunity under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. [15] This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 (288) is being charged against the employees.
(2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.
(3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.
In the instant case, KKTI admits that it had failed to provide respondent with a charge sheet. [16] However, it maintains that it had substantially complied with the rules, claiming that respondent would not have issued a written explanation had he not been informed of the charges against him. [17]
We are not convinced.
First, respondent was not issued a written notice charging him of committing an infraction. The law is clear on the matter. A verbal appraisal of the charges against an employee does not comply with the first notice requirement.
Second, even assuming that petitioner KKTI was able to furnish respondent an Irregularity Report notifying him of his offense, such would not comply with the requirements of the law. We observe from the irregularity reports against respondent for his other offenses that such contained merely a general description of the charges against him. The reports did not even state a company rule or policy that the employee had allegedly violated. Likewise, there is no mention of any of the grounds for termination of employment under Art. 282 of the Labor Code. Thus, KKTIs standard charge sheet is not sufficient notice to the employee.
Third, no hearing was conducted. Regardless of respondents written explanation, a hearing was still necessary in order for him to clarify and present evidence in support of his defense. Moreover, respondent made the letter merely to explain the circumstances relating to the irregularity in his October 28, 2001Conductors Trip Report. He was unaware that a dismissal proceeding was already being effected. Thus, he was surprised to receive the November 26, 2001termination letter indicating as grounds, not only his October 28, 2001 infraction, but also his previous infractions.
Sanction for Non-compliance with Due Process Requirements
As stated earlier, after a finding that petitioners failed to comply with the due process requirements, the CA awarded full backwages in favor of respondent in accordance with the doctrine in Serrano v. NLRC. [20] However, the doctrine in Serrano had already been abandoned in Agabon v. NLRC by ruling that if the dismissal is done without due process, the employer should indemnify the employee with nominal damages. [21]
Thus, for non-compliance with the due process requirements in the termination of respondents employment, petitioner KKTI is sanctioned to pay respondent the amount of thirty thousand pesos (PhP 30,000) as damages.
Thirteenth (13th)-Month Pay
Petitioner KKTI maintains that respondent was paid on purely commission basis; thus, the latter is not entitled to receive the 13th-month pay benefit. However, applying the ruling in Philippine Agricultural Commercial and Industrial Workers Union v. NLRC, [23] the CA held that respondent is entitled to the said benefit. It was erroneous for the CA to apply the case of Philippine Agricultural Commercial and Industrial Workers Union. Notably in the said case, it was established that the drivers and conductors praying for 13th- month pay were not paid purely on commission. Instead, they were receiving a commission in addition to a fixed or guaranteed wage or salary. Thus, the Court held that bus drivers and conductors who are paid a fixed or guaranteed minimum wage in case their commission be less than the statutory minimum, and commissions only in case where they are over and above the statutory minimum, are entitled to a 13th- month pay equivalent to one-twelfth of their total earnings during the calendar year.
On the other hand, in his Complaint, [24] respondent admitted that he was paid on commission only. Moreover, this fact is supported by his pay slips [25] which indicated the varying amount of commissions he was receiving each trip. Thus, he was excluded from receiving the 13th-month pay benefit.
UNIWIDE SALES WAREHOUSE CLUB VS. NLRC FEB. 29, 2008 In the present case, private respondent claims that from the months of February to June 1998, she had been subjected to constant harassment, ridicule and inhumane treatment by Apduhan, with the hope that the latter can get the private respondent to resign. 47 The harassment allegedly came in the form of successive memoranda which private respondent would receive almost every week, enumerating a litany of offenses and maligning her reputation and spreading rumors among the employees that private respondent shall be dismissed soon. 48 The last straw of the imputed harassment was the July 31, 1998 incident wherein private respondent's life was put in danger when she lost consciousness due to hypertension as a result of Apduhan's alleged hostility and shouting. 49
The Court finds that private respondent's allegation of harassment is a specious statement which contains nothing but empty imputation of a fact that could hardly be given any evidentiary weight by this Court. 50 Private respondent's bare allegations of constructive dismissal, when uncorroborated by the evidence on record, cannot be given credence. 51
The sending of several memoranda addressed to a managerial or supervisory employee concerning various violations of company rules and regulations, committed on different occasions, are not unusual. The alleged February to June 1998 series of memoranda given by petitioners to private respondent asking the latter to explain the alleged irregular acts should not be construed as a form of harassment but merely an exercise of management's prerogative to discipline its employFees. Self-serving and unsubstantiated declarations are insufficient to establish a case before quasi-judicial bodies. Well-entrenched is the rule that the quantum of evidence required to establish a fact in quasi-judicial bodies is substantial evidence. Substantial evidence is such amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion, even if other equally reasonable minds might opine otherwise. 54
ABANDONMENT Private respondent's failure to report for work despite the August 8, 1998 letter sent by Apduhan to private respondent advising the latter to report for work is not sufficient to constitute abandonment. It is a settled rule that failure to report for work after a notice to return to work has been served does not necessarily constitute abandonment. 56
Private respondent mistakenly believed that the successive memoranda sent to her from March 1998 to June 1998 constituted discrimination, insensibility or disdain which was tantamount to constructive dismissal. Thus, private respondent filed a case for constructive dismissal against petitioners and consequently stopped reporting for work. The Court finds that petitioners were not able to establish that private respondent deliberately refused to continue her employment without justifiable reason. To repeat, the Court will not make a drastic conclusion that private respondent chose to abandon her work on the basis of her mistaken belief that she had been constructively dismissed by Uniwide. Nonetheless, the Court agrees with the findings of the LA that the termination of private respondent was grounded on the existence of just cause under Article 282 (c) of the Labor Code 59 or willful breach by the employee of the trust reposed on him by his employer or a duly authorized representative. 60
Private respondent occupies a managerial position. As a managerial employee, mere existence of a basis for believing that such employee has breached the trust of his employer would suffice for his dismissal. 61
The irregularities and offenses committed by private respondent, corroborated by the various pieces of evidence supporting such charges, i.e. records, reports and testimonies of Uniwide employees, 67 in the mind of the Court, constitute substantial evidence that private respondent is in fact responsible for the alleged charges. DUE PROCESS The Memorandum dated August 2, 1998 73 completely demolishes such claims. It shows on its face that private respondent received the Memorandum on August 2, 1998, a day before she filed the complaint for illegal dismissal against petitioners; and that private respondent was notified that the hearing was scheduled on August 12, 1998 and explicitly warned her that her failure to appear thereat shall mean a waiver to be heard, and the case shall then be submitted for decision based on available papers and evidence. In reality, private respondent, as found earlier was not terminated on July 31, 1998. There was no constructive dismissal. Again, the successive memoranda presented by private respondent and the alleged July 31, 1998 shouting incident are not sufficient to establish her claim of harassment. However, as to the September 1, 1998 Memorandum where the private complainant was dismissed for loss of trust and confidence, the Court finds the notice of the scheduled August 12, 1998 hearing sufficient compliance with the due process requirement. The essence of due process is simply an opportunity to be heard, or as applied to administrative proceedings, a fair and reasonable opportunity to explain one's side. 74 It is not the denial of the right to be heard but denial of the opportunity to be heard that constitutes violation of due process of law. 75 In the instant case, private respondent was again notified of the August 12, 1998 hearing through a letter 76 dated August 8, 1998 which was received by private respondent herself. 77 Clearly, private respondent was given an opportunity to be heard. However, private respondent chose not to attend the scheduled hearing because of her mistaken belief that she had already been constructively dismissed. ROLANDO PLACIDO AND EDGARDO CARAGAY VS NLRC SEPT. 18, 2009
As did the NLRC and the Court of Appeals, [19] the Court finds that as the cables bore the PLDT marking, the presumption is that PLDT owned them. The burden of evidence thus lay on petitioners to prove that they acquired the cables lawfully. This they failed to discharge.
And as also did the NLRC and the Court of Appeals, the Court finds that petitioners were not denied due process.
The abovequoted provision of Section 2(d) should not be taken to mean, however, that holding an actual hearing or conference is a condition sine qua non for compliance with the due process requirement in case of termination of employment. For the test for the fair procedure guaranteed under the above-quoted Article 277(b) of the Labor Code is not whether there has been a formal pretermination confrontation between the employer and the employee.
The essence of due process is simply an opportunity to be heard or, as applied to administrative proceedings, an opportunity to explain one's side or an opportunity to seek a reconsideration of the action or ruling complained of. What the law prohibits is absolute absence of the opportunity to be heard, hence, a party cannot feign denial of due process where he had been afforded the opportunity to present his side. A formal or trial type hearing is not at all times and in all instances essential to In the present case, petitioners were, among other things, given several written invitations to submit themselves to PLDTs Investigation Unit to explain their side, but they failed to heed the. Petitioners were thus afforded the opportunity to confront those witnesses and present evidence in their behalf, but they failed to do so.
TECHNOLEIGHT PHILIPPINES CORPORATION VS. NLRC APRIL 13, 2010 THE RULING OF THE COURT
The record of the case, however, gives us a different picture. Contrary to the CAs perception, we find a work-connection in Amular's and Ducays assault on Mendoza. As the CA itself noted, [32] the underlying reason why Amular and Ducay confronted Mendoza was to question him about his report to De Leon Technols PCD assistant supervisor regarding the duos questionable work behavior. The motivation behind the confrontation, as we see it, was rooted on workplace dynamics as Mendoza, Amular and Ducay interacted with one another in the performance of their duties. Amular and Ducay point to Mendoza as the proximate cause of the fight because he challenged them to a one-on-one (isa-isa lang) bout. [38] Looking back at the reason why Amular and Ducay were at the mall in the first place, this attributed causation hardly makes sense. To reiterate, they were purposely there to confront Mendoza about their work-related problem. They waited for him at the place where they expected him to be. When Mendoza appeared, they accosted him and put into motion the entire sorry incident.
Under these circumstances, Amular undoubtedly committed a misconduct or exhibited improper behavior that constituted a valid cause for his dismissal under the law [39] and jurisprudential standards. [40]
Thus, Amular was not illegally dismissed; he was dismissed for cause.
The Due Process Issue
We disagree with these conclusions. The notice of preventive suspension/notice of discharge served on Amular and Ducay required them to explain within forty-eight (48) hours why no disciplinary action should be taken against them for their involvement in the mauling incident. On June 8, 2002, Technol management sent Amular a memorandum informing him of an administrative hearing on June 14, 2002 at 10:00 a.m., regarding the charges against him. [50] A day before the administrative hearing or on June 13, 2002, Amular filed the complaint for illegal suspension/dismissal [51] and did not appear at the administrative hearing. On July 4, 2002, the company sent Amular a notice of dismissal. [52]
What we see in the records belie Amulars claim of denial of procedural due process. He chose not to present his side at the administrative hearing. In fact, he avoided the investigation into the charges against him by filing his illegal dismissal complaint ahead of the scheduled investigation. Under these facts, he was given the opportunity to be heard and he cannot now come to us protesting that he was denied this opportunity. To belabor a point the Court has repeatedly made in employee dismissal cases, the essence of due process is simply an opportunity to be heard; it is the denial of this opportunity that constitutes violation of due process of law. [53]