LAKPUE DRUG, INC., LA CROESUS PHARMA, INC., TROPICAL BIOLOGICAL PHILS., INC.

(all known as LAKPUE GROUP OF COMPANIES) and/or ENRIQUE CASTILLO, JR., Petitioners, - versus -

G.R. No. 166379

Present: Davide, Jr., C.J. (Chairman), Quisumbing, Ynares-Santiago, Carpio, and Azcuna, JJ. Promulgated:

MA. LOURDES BELGA, Respondent.

October 20, 2005 x ---------------------------------------------------------------------------------------- x DECISION YNARES-SANTIAGO, J.: Before us is a petition for review of the July 28, 2004 Decision[1] of the Court of Appeals in CAG.R. SP No. 80616 which reversed and set aside the April 14, 2003 Decision[2] of the National Labor Relations Commission (NLRC) in NLRC NCR 00-09-04981-01; and its December 17, 2004 Resolution [3] denying the motion for reconsideration. Petitioner Tropical Biological Phils., Inc. (Tropical), a subsidiary of Lakpue Group of Companies, hired on March 1, 1995 respondent Ma. Lourdes Belga (Belga) as bookkeeper and subsequently promoted as assistant cashier. On March 19, 2001, Belga brought her daughter to the Philippine General Hospital (PGH) for treatment of broncho-pneumonia. On her way to the hospital, Belga dropped by the house of Marylinda O. Vegafria, Technical Manager of Tropical, to hand over the documents she worked on over the weekend and to give notice of her emergency leave. While at the PGH, Belga who was pregnant experienced labor pains and gave birth on the same day. On March 22, 2001, or two days after giving birth, Tropical summoned Belga to report for work but the latter replied that she could not comply because of her situation. On March 30, 2001, Tropical sent Belga another memorandum ordering her to report for work and also informing her of the clarificatory conference scheduled on April 2, 2001. Belga requested that the conference be moved to April 4, 2001 as her newborn was scheduled for check-up on April 2, 2001. When Belga attended the clarificatory conference on April 4, 2001, she was informed of her dismissal effective that day. Belga thus filed a complaint with the Public Assistance and Complaint Unit (PACU) of the Department of Labor and Employment (DOLE). Attempts to settle the case failed, hence the parties brought the case before the NLRC-NCR.

Tropical, for its part, averred that it hired Belga on March 1, 1995 as a bookkeeper and later promoted to various positions the last of which was as Treasury Assistant. Tropical claimed that this position was not merely clerical because it included duties such as assisting the cashier in preparing deposit slips, bills purchased, withdrawal slips, provisional receipts, incoming and outgoing bank transactions, postdated checks, suppliers checklist and issuance of checks, authorities to debit and doing liaison work with banks. Tropical also alleged that Belga concealed her pregnancy from the company. She did not apply for leave and her absence disrupted Tropicals financial transactions. On March 21, 2001, it required Belga to explain her unauthorized absence and on March 30, 2001, it informed her of a conference scheduled on April 2, 2001. Tropical claimed that Belga refused to receive the second memorandum and did not attend the conference. She reported for work only on April 4, 2001 where she was given a chance to explain. On April 17, 2001, Tropical terminated Belga on the following grounds: (1) Absence without official leave for 16 days; (2) Dishonesty, for deliberately concealing her pregnancy; (3) Insubordination, for her deliberate refusal to heed and comply with the memoranda sent by the Personnel Department on March 21 and 30, 2001 respectively.[4] The Labor Arbiter ruled in favor of Belga and found that she was illegally dismissed, thus: WHEREFORE, the termination of complainant is hereby declared illegal. ACCORDINGLY, she should be reinstated with full backwages, which as of May 31, 2002, now amounts to P122, 248.71. Ten (10%) percent of the total monetary award as attorneys fees is likewise ordered. SO ORDERED.[5] Tropical appealed to the NLRC, which reversed the findings of the labor arbiter in its Decision dated April 14, 2003, thus: WHEREFORE, in the light of the foregoing, the assailed Decision is REVERSED and SET ASIDE. We thereby render judgment: (1) (2) declaring complainant-appellees dismissal valid; and nullifying complainant-appellees monetary claims.

SO ORDERED.[6] Upon denial of the motion for reconsideration on September 24, 2003,[7] Belga filed a petition for certiorari with the Court of Appeals which found in favor of Belga, thus: WHEREFORE, premises considered, the Decision promulgated on April 14, 2003 and the Resolution promulgated on September 24, 2003 of the public respondent

National Labor Relations Commission are hereby REVERSED and SET ASIDE. The decision of the Labor Arbiter dated June 15, 2002 is hereby REINSTATED. SO ORDERED.[8] Hence, Tropical filed the instant petition claiming that: I. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR IN HOLDING THAT RESPONDENT WAS ILLEGALLY DISMISSED. II. THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR IN DISREGARDING THE FINDINGS OF THE NATIONAL LABOR RELATIONS COMMISSION.[9] The petition lacks merit. Tropicals ground for terminating Belga is her alleged concealment of pregnancy . It argues that such non-disclosure is tantamount to dishonesty and impresses upon this Court the importance of Belgas position and the gravity of the disruption her unexpected absence brought to the company. Tropical also charges Belga with insubordination for refusing to comply with its directives to report for work and to explain her absence. Tropical cites the following paragraphs of Article 282 of the Labor Code as legal basis for terminating Belga: Article 282. Termination by employer. An employer may terminate an employment for any of the following causes: (a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; .... (c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; .... We have defined misconduct as a 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 in judgment. 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.[10] In the instant case, the alleged misconduct of Belga barely falls within the situation contemplated by the law. Her absence for 16 days was justified considering that she had just delivered a child, which can hardly be considered a forbidden act, a dereliction of duty; much less does it imply wrongful intent on the part of Belga. Tropical harps on the alleged concealment by Belga of

her pregnancy. This argument, however, begs the question as to how one can conceal a full-term pregnancy. We agree with respondents position that it can hardly escape notice how she grows bigger each day. While there may be instances where the pregnancy may be inconspicuous, it has not been sufficiently proven by Tropical that Belgas case is such. Belgas failure to formally inform Tropical of her pregnancy can not be considered as grave misconduct directly connected to her work as to constitute just cause for her separation. The charge of disobedience for Belgas failure to comply with the memoranda must likewise fail. Disobedience, as a just cause for termination, must be willful or intentional. Willfulness is characterized by a wrongful and perverse mental attitude rendering the employees act inconsistent with proper subordination.[11] In the instant case, the memoranda were given to Belga two days after she had given birth. It was thus physically impossible for Belga to report for work and explain her absence, as ordered. Tropical avers that Belgas job as Treasury Assistant is a position of responsibility since she handles vital transactions for the company. It adds that the nature of Belgas work and the character of her duties involved utmost trust and confidence. Time and again, we have recognized the right of employers to dismiss employees by reason of loss of trust and confidence. However, we emphasize that such ground is premised on the fact that the employee concerned holds a position of responsibility or trust and confidence. [12] In order to constitute a just cause for dismissal, the act complained of must be work-related such as would show the employee concerned to be unfit to continue working for the employer.[13] More importantly, the loss of trust and confidence must be based on the willful breach of the trust reposed in the employee by his employer. A breach of trust is willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.[14] Belga was an assistant cashier whose primary function was to assist the cashier in such duties as preparation of deposit slips, provisional receipts, post-dated checks, etc. As correctly observed by the Court of Appeals, these functions are essentially clerical. For while ostensibly, the documents that Belga prepares as Assistant Cashier pertain to her employers property, her work does not call for independent judgment or discretion. Belga simply prepares the documents as instructed by her superiors subject to the latters verification or approval. Hence, her position cannot be considered as one of responsibility or imbued with trust and confidence. Furthermore, Tropical has not satisfactorily shown how and to what extent it had suffered damages because of Belgas absences. For while it may be true that the company was caught unprepared and unable to hire a temporary replacement, we are not convinced that Belgas absence for 16 days has wreaked havoc on Tropicals business as to justify her termination from the company .

On the other hand, it is undisputed that Belga has worked for Tropical for 7 years without any blemish on her service record. In fact, the company admitted in its petition that she has rendered seven (7) years of service in compliance with [the companys] rules.[15] And her fidelity to her work is evident because even in the midst of an emergency, she managed to transmit to the company the documents she worked on over the weekend so that it would not cause any problem for the company. All told, we find that the penalty of dismissal was too harsh in light of the circumstances obtaining in this case. While it may be true that Belga ought to have formally informed the company of her impending maternity leave so as to give the latter sufficient time to find a temporary replacement, her termination from employment is not commensurate to her lapse in judgment. Even assuming that there was just cause for terminating Belga, her dismissal is nonetheless invalid for failure of Tropical to observe the twin-notice requirement. The March 21, 2001 Belga memorandum merely informed her to report for work and explain her absences. The March 30, 2001 memorandum demanded that she report for work and attend a clarificatory conference. received the first memorandum but allegedly refused to receive the second. In Electro System Industries Corporation v. National Labor Relations Commission ,[16] we held that, in dismissing an employee, the employer has the burden of proving that the worker has been served two notices: (1) one to apprise him of the particular acts or omissions for which his dismissal is sought, and (2) the other to inform him of his employers decision to dismiss him. The first notice must state that the dismissal is sought for the act or omission charged against the employee, otherwise the notice cannot be considered sufficient compliance with the rules. It must also inform outright that an investigation will be conducted on the charges particularized therein which, if proven, will result to his dismissal. Further, we held that a notation in the notice that the employee refused to sign is not sufficient proof that the employer attempted to serve the notice to the employee. An employee who was illegally 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 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.[17] Thus, Belga is entitled to be reinstated to her former or equivalent position and to the payment of full backwages from the time she was illegally dismissed until her actual reinstatement. WHEREFORE, the instant petition is DENIED. The July 28, 2004 Decision of the Court of Appeals in CA-G.R. SP No. 80616 and its December 17, 2004 Resolution are AFFIRMED in toto. SO ORDERED.

ATTY. SUSAN M. AQUINO, complainant, vs. HON. ERNESTO D. ACOSTA, Presiding Judge, Court of Tax Appeals, respondent. DECISION
SANDOVAL-GUTIERREZ, J.:

The present administrative case filed with this Court originated from a sworn affidavitcomplainti[1] of Atty. Susan M. Aquino, Chief of the Legal and Technical Staff of the Court of Tax Appeals (CTA), charging Judge Ernesto Acosta, Presiding Judge of the same court, with sexual harassment under R.A. 7877 and violation of the Canons of Judicial Ethics and Code of Professional Responsibility. In her affidavit-complaint, complainant alleged several instances when respondent judge sexually harassed her. On November 21, 2000, she reported for work after her vacation in the United States, bringing gifts for the three judges of the CTA, including respondent. In the afternoon of the same day, he entered her room and greeted her by shaking her hand. Suddenly, he pulled her towards him and kissed her on her cheek. On December 28, 2000, while respondent was on official leave, he called complainant by phone, saying he will get something in her office. Shortly thereafter, he entered her room, shook her hand and greeted her, "Merry Christmas." Thereupon, he embraced her and kissed her. She was able to free herself by slightly pushing him away. Complainant submitted the Joint Affidavitii[2] of Ma. Imelda C. Samonte and Anne Benita M. Santos, CTA Tax Specialists, to prove that respondent went to her office that day. On the first working day in January, 2001, respondent phoned complainant, asking if she could see him in his chambers in order to discuss some matters. When complainant arrived there, respondent tried to kiss her but she was able to evade his sexual attempt. She then resolved not to enter his chambers alone.

Weeks later, after the Senate approved the proposed bill expanding the jurisdiction of the CTA, while complainant and her companions were congratulating and kissing each other, respondent suddenly placed his arms around her shoulders and kissed her. In the morning of February 14, 2001, respondent called complainant, requesting her to go to his office. She then asked Ruby Lanuza, a clerk in the Records Section, to accompany her. Fortunately, when they reached his chambers, respondent had left. The last incident happened the next day. At around 8:30 a.m., respondent called complainant and asked her to see him in his office to discuss the Senate bill on the CTA. She again requested Ruby to accompany her. The latter agreed but suggested that they should act as if they met by accident in respondents office. Ruby then approached the secretarys table which was separated from respondents office by a transparent glass. For her part, complainant sat in front of respondent's table and asked him what he wanted to know about the Senate bill. Respondent seemed to be at a loss for words and kept glancing at Ruby who was searching for something at the secretary's desk. Forthwith, respondent approached Ruby, asked her what she was looking for and stepped out of the office. When he returned, Ruby said she found what she was looking for and left. Respondent then approached complainant saying, me gusto akong gawin sa iyo kahapon pa. Thereupon, he tried to grab her. Complainant instinctively raised her hands to protect herself but respondent held her arms tightly, pulled her towards him and kissed her. She pushed him away, then slumped on a chair trembling. Meantime, respondent sat on his chair and covered his face with his hands. Thereafter, complainant left crying and locked herself inside a comfort room. After that incident, respondent went to her office and tossed a noteiii[3] stating, sorry, it wont happen again. In his comment, respondent judge denied complainants allegation that he sexually harassed her six times. He claimed that he has always treated her with respect, being the head of the CTA Legal Staff. In fact, there is no strain in their professional relationship. On the first incident, he explained that it was quite unlikely that complainant would ask him to go to her office on such date in order to give him a pasalubong. With respect to the second incident on December 28, he claimed it could not have happened as he was then on official leave. Anent the third incident, respondent explained that he went to the various offices of the CTA to extend New Years greetings to the personnel. He also greeted complainant with a casual buss on her cheek and gave her a calendar. In turn, she also greeted him. As to the fourth episode, he averred that he and complainant had been attending the deliberations of the Bicameral Conference Committee at the Senate on the bill expanding the jurisdiction of the CTA. Hence, when the bill was finally approved that particular day, respondent, in jubilation and in the presence of other people, gave complainant a spontaneous peck on her cheek. He could not recall any resentment on her part when he kissed her. She even congratulated him in return, saying Justice ka na Judge. Then he treated her to a lunch to celebrate the event. Respondent recounted several times when they would return to the CTA in the evening after

attending the committee hearings in Congress to retrieve complainants personal belongings from her office. Surely, if he had malice in his mind, those instances would have been the perfect opportunities for him to sexually harass her. As to the fifth incident, respondent alleged that he did not call complainant to harass her, but to discuss with her and Elizabeth Lozano, HRMO III, and Elsie T. Forteza, Administrative Officer, the health plan for the CTA officers and employees. The fact that such meeting took place was confirmed by a Certification issued by Lozano.iv[4] Regarding the sixth incident, respondent narrated his version as follows: Complainant arrived in his office past 9 a.m. that day, followed by another court employee, Ruby Lanuza. He proceeded to discuss the CTA Expansion Bill with complainant. Then he went for a while to the rest room. When he returned, Ruby had already left but complainant was still there. Forthwith, he remarked that he forgot to greet her on Valentines Day, the day before. He approached complainant to give her a casual buss on the cheek. But she suddenly stood and raised her arms to cover her face, causing her to lose her balance. So he held her arms to prevent her from falling. Her rejection came as a surprise to him and made him feel quite embarrassed. Shortly, complainant excused herself and left the room. Stunned at the thought that she might misinterpret his gesture, he sent her a short note of apology. Respondent further explained that the structure of his office, being seen through a transparent glass divider, makes it impossible for anyone to commit any improper conduct inside. In a Resolution dated August 21, 2001, this Court referred the instant case to Justice Josefina G. Salonga of the Court of Appeals for investigation, report and recommendation. Justice Salonga set the hearing of the case on November 6, 2001. However, the parties, through counsel, manifested that they will not be adducing any further evidence. On November 7, 2001, Justice Salonga issued an Order directing them to submit their memoranda simultaneously, after which, the case shall be considered submitted for resolution. On January 9, 2002, Justice Salonga forwarded to this Court her Report on Investigation and Recommendation, thus: We find for the respondent. "The complainant failed to show by convincing evidence that the acts of Judge Acosta in greeting her with a kiss on the cheek, in a 'beso-beso' fashion, were carried out with lustful and lascivious desires or were motivated by malice or ill-motive. It is clear under the circumstances that most of the kissing incidents were done on festive and special occasions. In fact, complainant's testimony that she was sexually harassed on November 21, 2000, is hardly believable. Notably, complainant declared in her affidavit-complaint that she brought some 'pasalubongs' for the respondent judge from her trip abroad. Therefore, Atty. Aquino could not have been 'taken aback' by the respondent's act of greeting her in a friendly manner and thanking her by way of a kiss on the cheek. Moreover, it was established that Judge Acosta was on official leave of absence from December 26-29, 2000. This was corroborated by Ricardo Hebia,

the driver of respondent judge, in his Panunumpa (Affidavit) dated March 26, 2001, where he stated among others, to wit: x x x

"Corollarily, the joint affidavit of Ms. Santos and Ms. Samonte attesting to the fact that respondent dropped by at the third floor of the CTA and greeted them Happy New Year, even if it true, can not be given any evidentiary weight. Clearly, they did not make any categorical statement that they had witnessed or seen Judge Acosta making sexual advances on the complainant. Nor did they even attribute any malicious acts on respondent constituting sexual harassment. "In addition, the respondent admitted that when he handed a calendar and greeted complainant with a buss, complainant reciprocated by greeting him a Happy New Year. The allegation of Atty. Aquino that the respondent merely used the calendars as 'props' to kiss her on the cheek and that she was singled out by respondent is not supported by any convincing evidence. The affidavit of Ms. Aurora U. Aso and Renelyn L. Larga that Ms. Carmen Acosta gave them calendars for the office of Attys. Margarette Guzman and Felizardo O. Consing, is immaterial and irrelevant, as Judge Acosta had stated that he handed to complainant Aquino, a 2001 calendar in the course of greeting her with a buss on the cheek. Said affidavit could not account for the calendars distributed to the other offices in the CTA, more specifically, the Legal and Technical Staff headed by Atty. Aquino. "Moreover, the claim of the complainant that she was sexually harassed immediately after the final reading of the bill anent the expansion of the CTA at the Senate, can not be accorded great evidentiary value. The alleged kissing incident took place in the presence of other people and the same was by reason of the exaltation or happiness of the moment, due to the approval of the subject bill. Quite interesting to note, is that Atty. Aquino reciprocated by congratulating respondent and remarking "justice ka na judge" after the latter had bussed her on the cheek. Complainant even failed to dispute the fact that after the kissing incident, she joined Judge Acosta and his driver for lunch at a seafood restaurant in Luneta. There was even a time that she allowed the respondent judge to accompany her to the office alone and at nighttime at that, to retrieve her car keys and bag when they returned to the CTA after the hearing at the Senate on the CTA expansion bill. These acts are not at square with the behavior of one who has been sexually harassed, for the normal reaction of a victim of sexual harassment would be to avoid the harasser or decline his invitations after being offended. In fact, this occasion could have provided the respondent judge with the right opportunity to commit malicious acts or to sexually harass complainant, but then Judge Acosta never even attempted to do so. Undoubtedly, it could be said that no strained relations existed between Atty. Aquino and Judge Acosta at that moment. "Neither can the alleged continuous call of Judge Acosta on complainant in the morning of February 14, 2001 to see him in his office, be considered as acts constituting sexual harassment. Atty. Aquino failed to state categorically in her affidavit-complaint that respondent demanded sexual advances or favors from her, or that the former had committed physical conduct of sexual nature against her. The telephone calls were attributed malicious implications by the complainant. To all intents and purposes, the allegation was merely a product of her

imagination, hence, the same deserves no weight in law. Indeed, Atty. Aquino's own version, indicates that she well knew that the purpose of the respondent in calling her in the morning of February 14, 2001 was to discuss the CTA Health Plan which was disapproved by the Supreme Court and not for the respondent to demand sexual favors from her. This was corroborated by Atty. Margarette Guzman in her affidavit dated February 28, 2001, attached to the complainant's affidavit, where she stated: x x x

"Finally, while Judge Acosta admitted having pecked Atty. Aquino on her cheek, which was avoided by the latter, the same was not meant to sexually harass her. Judge Acosta's act of extending his post Valentine greeting to complainant was done in good faith and sans any malice. This is so because immediately after the complainant had displayed annoyance to the kissing episode, Judge Acosta immediately extended an apology by way of a handwritten note saying that the incident won't happen again. "Parenthetically, the undersigned is convinced that Ms. Lanuza's affidavit that she supposedly accompanied complainant to respondent's office as she allegedly had a previous 'bad experience' with the latter when he was still an Associate Judge, was merely concocted to add flavor to the baseless imputations hurled against Judge Acosta. The accusation is implausible as Ms. Lanuza did not seem to complain about the alleged bad experience she had with Judge Acosta or relate it to anyone until ten (10) years later. It must be stressed that Ms. Lanuza is a biased-witness who harbored ill feelings against the respondent, as she was reprimanded by Judge Acosta for habitual absenteeism and tardiness in 1996. More importantly, Ms. Lanuza did not even attest that she was a witness to the alleged sexual advances of Judge Acosta. "In all the incidents complained of, the respondent's pecks on the cheeks of the complainant should be understood in the context of having been done on the occasion of some festivities, and not the assertion of the latter hat she was singled out by Judge Acosta in his kissing escapades. The busses on her cheeks were simply friendly and innocent, bereft of malice and lewd design. The fact that respondent judge kisses other people on the cheeks in the 'beso-beso' fashion, without malice, was corroborated by Atty. Florecita P. Flores, Ms. Josephine Adalem and Ms. Ma. Fides Balili, who stated that they usually practice 'beso-beso' or kissing on the cheeks, as a form of greeting on occasions when they meet each other, like birthdays, Christmas, New Year's Day and even Valentine's Day, and it does not matter whether it is Judge Acosta's birthday or their birthdays. Theresa Cinco Bactat, a lawyer who belongs to complainant's department, further attested that on occasions like birthdays, respondent judge would likewise greet her with a peck on the cheek in a 'beso-beso' manner. Interestingly, in one of several festive occasions, female employees of the CTA pecked respondent judge on the cheek where Atty. Aquino was one of Judge Acosta's well wishers. (Annex "8" to Comment, p. 65, Rollo) "In sum, no sexual harassment had indeed transpired on those six occasions. Judge Acosta's acts of bussing Atty. Aquino on her cheek were merely forms of greetings, casual and customary in nature. No evidence of intent to sexually harass complainant was apparent, only that the innocent acts of 'beso-beso' were given malicious connotations by the complainant. In fact, she

did not even relate to anyone what happened to her. Undeniably, there is no manifest sexual undertone in all those incidents.v[5] Justice Salonga then made the following recommendation: Considering the above, the undersigned respectfully recommends that the administrative complaint for sexual harassment and violations of the Canons of Judicial Ethics and the Code of Professional Responsibility be DISMISSED and accordingly, respondent Presiding Judge Ernesto D. Acosta be exonerated therefrom; that in view of these charges which might have tainted the image of the Court, though unsubstantiated they may be, Judge Acosta is WARNED to refrain from doing similar acts, or any act for that matter on the complainant and other female employees of the Court of Tax Appeals, which in any manner may be interpreted as lustful advances.vi[6] We agree with the findings of Justice Salonga. Administrative complaints against members of the judiciary are viewed by this Court with utmost care, for proceedings of this nature affect not only the reputation of the respondents concerned, but the integrity of the entire judiciary as well. We have reviewed carefully the records of this case and found no convincing evidence to sustain complainants charges. What we perceive to have been committed by respondent judge are casual gestures of friendship and camaraderie, nothing more, nothing less. In kissing complainant, we find no indication that respondent was motivated by malice or lewd design. Evidently, she misunderstood his actuations and construed them as work-related sexual harassment under R.A. 7877. As aptly stated by the Investigating Justice: "A mere casual buss on the cheek is not a sexual conduct or favor and does not fall within the purview of sexual harassment under R.A. No. 7877. Section 3 (a) thereof provides, to wit: 'Sec. 3. Work, Education or Training - related Sexual Harassment Defined. - Work, education or training-related sexual harassment is committed by an employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person who, having authority, influence or moral ascendancy over another in a work or training or education environment, demands, requests or otherwise requires any sexual favor from the other, regardless of whether the demand, request or requirement for submission is accepted by the object of said Act. a) In a work-related or employment environment, sexual harassment is committed when: 1) The sexual favor is made as a condition in the hiring or in the employment, re-employment or continued employment of said individual, or in granting said individual favorable compensation, terms, conditions, promotions or privileges; or the refusal to grant sexual favor results in

limiting, segregating or classifying the employee which in anyway would discriminate, deprive or diminish employment opportunities or otherwise adversely affect said employees; 2) The above acts would impair the employee's right or privileges under existing labor laws; or 3) The above acts would result in an intimidating, hostile, or offensive environment for the employee.' "Clearly, under the foregoing provisions, the elements of sexual harassment are as follows: 1) The employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any other person has authority, influence or moral ascendancy over another; 2) The authority, influence or moral ascendancy exists in a working environment;

3) The employer, employee, manager, supervisor, agent of the employer, teacher, instructor, professor, coach, or any other person having authority, influence or moral ascendancy makes a demand, request or requirement of a sexual favor. "In her Complaint-affidavit, Reply and Sur-rejoinder, complainant did not even allege that Judge Acosta demanded, requested or required her to give him a buss on the cheek which, she resented. Neither did Atty. Aquino establish by convincing evidence that the busses on her cheek, which she considers as sexual favors, discriminated against her continued employment, or resulted in an intimidating, hostile or offensive environment. In fact, complainant continued to perform her work in the office with the usual normalcy. Obviously, the alleged sexual favor, if there ever was, did not interfere with her working condition (Annexes "9" - "9-FFF"). Moreover, Atty. Aquino also continued to avail of benefits and leaves appurtenant to her office and was able to maintain a consistent outstanding performance. On top of this, her working area which, is at the third floor of the CTA, is far removed from the office of Judge Acosta located at the fourth floor of the same building. Resultantly, no hostile or intimidating working environment is apparent. "Based on the foregoing findings, there is no sufficient evidence to create a moral certainty that Judge Acosta committed the acts complained of; that Atty. Aquino's determination to seek justice for herself was not substantiated by convincing evidence; that the testimony of respondent judge and his witnesses are credible and therefore, should be given weight and probative value; that the respondent's acts undoubtedly do not bear the marks of misconduct, impropriety or immorality, either under R.A. No. 7877 or the Canons of Judicial Ethics and the Code of Professional Responsibility.vii[7] Indeed, from the records on hand, there is no showing that respondent judge demanded, requested or required any sexual favor from complainant in exchange for favorable compensation, terms, conditions, promotion or privileges specified under Section 3 of R.A. 7877. Nor did he, by his actuations, violate the Canons of Judicial Ethics or the Code of Professional Responsibility.

While we exonerate respondent from the charges herein, however, he is admonished not to commit similar acts against complainant or other female employees of the Court of Tax Appeals, otherwise, his conduct may be construed as tainted with impropriety. We laud complainants effort to seek redress for what she honestly believed to be an affront to her honor. Surely, it was difficult and agonizing on her part to come out in the open and accuse her superior of sexual harassment. However, her assessment of the incidents is misplaced for the reasons mentioned above. WHEREFORE, respondent Judge Ernesto D. Acosta is hereby EXONERATED of the charges against him. However, he is ADVISED to be more circumspect in his deportment. SO ORDERED.

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vHOLIDAY INN MANILA and/or HUBERT LINER and BABY DISQUITADO, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION (Second Division) and ELENA HONASAN, respondents. Inocentes, De Leon, Leogardo, Atienza, Manaye & Azucena Law Office for petitioners. Florante M. Yambot for private respondent.

CRUZ, J.: The employer has absolute discretion in hiring his employees in accordance with his standards of competence and probity. This is his prerogative. Once hired, however, the employees are entitled to the protection of the law even during the probation period and more so after they have become members of the regular force. The employer does not have the same freedom in the hiring of his employees as in their dismissal. Elena Honasan applied for employment with the Holiday Inn and was on April 15, 1991, accepted for "on-the-job training" as a telephone operator for a period of three weeks. 1 For her services, she received food and transportation allowance. 2 On May 13, 1992, after completing her training, she was employed on a "probationary basis" for a period of six months ending November 12, 1991. 3 Her employment contract stipulated that the Hotel could terminate her probationary employment at any time prior to the expiration of the six-month period in the event of her failure (a) to learn or progress in her job; (b) to faithfully observe and comply with the hotel rules and the instructions and orders of her superiors; or (c) to perform her duties according to hotel standards. On November 8, 1991, four days before the expiration of the stipulated deadline, Holiday Inn notified her of her dismissal, on the ground that her performance had not come up to the standards of the Hotel. 4 Through counsel, Honasan filed a complaint for illegal dismissal, claiming that she was already a regular employee at the time of her separation and so was entitled to full security of tenure. 5 The complaint was dismissed on April 22, 1992 by the Labor Arbiter, 6 who held that her separation was justified under Article 281 of the Labor Code providing as follows: 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. On appeal, this decision was reversed by the NLRC, which held that Honasan had become a regular employee and so could not be dismissed as a probationer. 7 In its own decision dated November 27, 1992, the NLRC ordered the petitioners to reinstate Honasan "to her former position without loss of seniority rights and other privileges with backwages without deduction and qualification." Reconsideration was denied in a resolution dated January 26, 1993. 8 The petitioners now fault the NLRC for having entertained Honasan's appeal although it was filed out of time and for holding that Honasan was already a regular employee at the time of her dismissal, which was made 4 days days before the expiration of the probation period. The petition has no merit. On the timeliness of the appeal, it is well-settled that all notices which a party is entitled to receive must be coursed through his counsel of record. Consequently, the running of the reglementary period is reckoned from the date of receipt of the judgment by the counsel of the appellant. 9 Notice to the appellant himself is not sufficient notice. 10Honasan's counsel received the decision of the Labor Arbiter on May 18, 1992. 11 Before that, however, the appeal had already been filed by Honasan herself, on May 8, 1992. 12 The petitioners claim that she filed it on the thirteenth but this is irrelevant. Even if the latter date was accepted, the appeal was nevertheless still filed on time, in fact even before the start of the reglementary period. On the issue of illegal dismissal, we find that Honasan was placed by the petitioner on probation twice, first during her on-the-job training for three weeks, and next during another period of six months, ostensibly in accordance with Article 281. Her probation clearly exceeded the period of six months prescribed by this article.

Probation is the period during which the employer may determine if the employee is qualified for possible inclusion in the regular force. In the case at bar, the period was for three weeks, during Honasan's on-the-job training. When her services were continued after this training, the petitioners in effect recognized that she had passed probation and was qualified to be a regular employee. Honasan was certainly under observation during her three-week on-the-job training. If her services proved unsatisfactory then, she could have been dropped as early as during that period. But she was not. On the contrary, her services were continued, presumably because they were acceptable, although she was formally placed this time on probation. Even if it be supposed that the probation did not end with the three-week period of on-the-job training, there is still no reason why that period should not be included in the stipulated six-month period of probation. Honasan was accepted for on-the-job training on April 15, 1991. Assuming that her probation could be extended beyond that date, it nevertheless could continue only up to October 15, 1991, after the end of six months from the earlier date. Under this more lenient approach, she had become a regular employee of Holiday Inn and acquired full security of tenure as of October 15, 1991. The consequence is that she could no longer be summarily separated on the ground invoked by the petitioners. As a regular employee, she had acquired the protection of Article 279 of the Labor Code stating as follows: Art. 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. The grounds for the removal of a regular employee are enumerated in Articles 282, 283 and 284 of the Labor Code. The procedure for such removal is prescribed in Rule XIV, Book V of the Omnibus Rules Implementing the Labor Code. These rules were not observed in the case at bar as Honasan was simply told that her services were being terminated because they were found to be unsatisfactory. No administrative investigation of any kind was undertaken to justify this ground. She was not even accorded prior notice, let alone a chance to be heard. We find in the Hotel's system of double probation a transparent scheme to circumvent the plain mandate of the law and make it easier for it to dismiss its employees even after they shall have already passed probation. The petitioners had ample time to summarily terminate Honasan's services during her period of probation if they were deemed unsatisfactory. Not having done so, they may dismiss her now only upon proof of any of the legal grounds for the separation of regular employees, to be established according to the prescribed procedure. The policy of the Constitution is to give the utmost protection to the working class when subjected to such maneuvers as the one attempted by the petitioners. This Court is fully committed to that policy and has always been quick to rise in defense of the rights of labor, as in this case. WHEREFORE, the petition is DISMISSED, with costs against petitioners. It is so ordered.

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