Professional Documents
Culture Documents
July 8, 2004]
MANILA WATER COMPANY, INC., petitioner, vs. HERMINIO D. PENA, ESTEBAN B. BALDOZA,
JORGE D. CANONIGO, JR., IKE S. DELFIN, RIZALINO M. INTAL, REY T. MANLEGRO,
JOHN L. MARTEJA, MARLON B. MORADA, ALLAN D. ESPINA,
EDUARDO ONG, AGNESIOD. QUEBRAL, EDMUNDO B. VICTA, VICTOR
C. ZAFARALLA, EDILBERTO C. PINGUL and FEDERICO M. RIVERA, respondents.
YNARES-SANTIAGO, J.:
This petition assails the decision[1] of the Court of Appeals dated November
29, 2002, in CA-G.R. SP No. 67134, which reversed the decision of the National
Labor Relations Commission and reinstated the decision of the Labor Arbiter
with modification.
Petitioner Manila Water Company, Inc. is one of the two private
concessionaires contracted by the Metropolitan Waterworks and Sewerage
System (MWSS) to manage the water distribution system in the East Zone of
Metro Manila, pursuant to Republic Act No. 8041, otherwise known as
the National Water Crisis Act of 1995.Under the Concession Agreement,
petitioner undertook to absorb former employees of the MWSS whose names
and positions were in the list furnished by the latter, while the employment of
those not in the list was terminated on the day petitioner took over the
operation of the East Zone, which was on August 1, 1997. Private respondents,
being contractual collectors of the MWSS, were among the 121 employees not
included in the list; nevertheless, petitioner engaged their services without
written contract from August 1, 1997 to August 31, 1997. Thereafter,
on September 1, 1997, they signed a three-month contract to perform
collection services for eight branches of petitioner in the East Zone.[2]
Before the end of the three-month contract, the 121 collectors incorporated
the Association Collectors Group, Inc. (ACGI),[3] which was contracted by
petitioner to collect charges for the Balara Branch. Subsequently, most of the
121 collectors were asked by the petitioner to transfer to the First Classic
Courier Services, a newly registered corporation. Only private respondents
herein remained with ACGI. Petitioner continued to transact with ACGI to do its
collection needs until February 8, 1999, when petitioner terminated its contract
with ACGI.[4]
SO ORDERED.[5]
Both parties appealed to the NLRC, which reversed the decision of the
Labor Arbiter and ruled that the documentary evidence, e.g., letters and
memoranda by the petitioner to ACGI regarding the poor performance of the
collectors, did not constitute proof of control since these documents merely
identified the erring collectors; the appropriate disciplinary actions were left to
the corporation to impose.[6] Further, there was no evidence showing that the
incorporation of ACGI was irregular.
Private respondents filed a petition for certiorari with the Court of Appeals,
contending that the NLRC acted with grave abuse of discretion amounting to
lack or excess of jurisdiction when it reversed the decision of the Labor Arbiter.
The Court of Appeals reversed the decision of the NLRC and reinstated with
modification the decision of the Labor Arbiter.[7] It held that petitioner
deliberately prevented the creation of an employment relationship with the
private respondents; and that ACGI was not an independent contractor. It
likewise denied petitioners motion for reconsideration.[8]
Hence, this petition for review raising the following errors:
Job contracting is permissible only if the following conditions are met: 1) the
contractor carries on an independent business and undertakes the contract
work on his own account under his own responsibility according to his own
manner and method, free from the control and direction of his employer or
principal in all matters connected with the performance of the work except as
to the results thereof; and 2) the contractor has substantial capital or
investment in the form of tools, equipment, machineries, work premises, and
other materials which are necessary in the conduct of the business.
The next question if whether, with respect to the period, the individual
contracts are valid. Not all contracts of employment fixing a period are
invalid. Under Article 280, the evil sought to be prevented is singled out:
agreements entered into precisely to circumvent security of tenure. It has no
application where a fixed period of employment was agreed upon knowingly
and voluntarily by the parties, without any force, duress or improper pressure
being brought upon the employee and absent any circumstances vitiating his
consent, or where it satisfactorily appears that the employer and employee
dealt with each other on more or less terms with no moral dominance whatever
being exercised by the former over the latter. That is the doctrine in Brent
School, Inc. v. Zamora, 181 SCRA 702. The individual contracts in question
were prepared by MWCin the form of the letter addressed to complainants. The
letter-contract is dated September 1, 1997, when complainants were already
working for MWC as collectors. With their employment as their means of
survival, there was no room then for complainants to disagree with the
presented letter-contracts. Their choice then was not to negotiate for the terms
of the contract but to lose or not to lose their employment employment which
they already had at that time. The choice is obvious, as what they did, to sign
the ready made letter-contract to retain their employment, and survive. It is a
defiance of the teaching in Brent School, Inc. v. Zamora if this Office rules that
the individual contracts in question are valid, so, in deference
to Brent School ruling, this Office rules they are null and void.[23]
ISSUE:
Is ACGI an independent contractor?
HELD:NO.
ACGI was engaged in labor-
only contracting, and as such, is considered merely an agent of thepetitioner.
Since ACGI is only a labor-only contractor, the workers it supplied should be
considered as employees ofManila Water.
First
, ACGI does not have substantial capitalization or investment in the form of
tools, equipment,machineries, work premises, and other materials, to qualify as
an independent contractor. While it has an authorizedcapital stock of
10 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
P1,000,000.00, only P62,500.00 is actually paid-in, which cannot be considered
substantialcapitalization. The 121 collectors subscribed to four shares each and
paid only the amount of P625.00 in order tocomply with the incorporation
requirements. Respondents reported daily to the branch office of Manila
Waterbecause ACGI has no office or work premises. The corporate address
of ACGI was the residence of its president, Mr.Peña. Moreover, in dealing with
the consumers, respondents used the receipts and identification cards issued
byManila Water.
Second, the work of the private respondents was directly related to the
principal business or operation ofManila Water. Being in the business of
providing water to the consumers in the East Zone, the collection of thecharges
by respondents for Manila Water can only be categorized as clearly related
to, and in the pursuit of the latter’s business.
PUNO, J.:
This is a special civil action for certiorari under Rule 65 of the Revised Rules
of Court for the annulment of the Decision of the National Labor Relations
Commission (NLRC) dated December 29, 1993[1] and its Resolution dated
April 15, 1994.[2]
In 1985, Philippine Commercial International Bank (PCIB) commenced its
4th GL Environment Conversion Project intended to link all existing computer
systems within PCIB and its various branches around the country. It entered
into a Computer Services Agreement with petitioner PCI Automation Center,
Inc. (PCI-AC), under which petitioner obligated itself to direct, supervise and
run the development of the software, computer software applications and
computer system of PCIB. On the other hand, PCIB agreed to provide the
petitioner with encoders and computer attendants, among others.[3]
To comply with its obligation to procure manpower for the petitioner, PCIB
engaged the services of Prime Manpower Resources Development, Inc. (Prime).
PCIB and Prime entered into an External Job Contract[4] which provides:
2. Selection - The CLIENT shall have the right to select, refuse, or change any
or all of the personnel assigned to deliver these services to the CLIENT upon
two (2) working days notice to PRIME.
In the event of injury to assigned PRIME personnel under this contract, due
to accidents which are work-related, the CLIENT shall reimburse PRIME for
medical expenses incurred which under existing laws are required to be
defrayed by the employers. In the case of assigned PRIME personnel under
regular status, medical expenses due to accidents or illnesses, whether or not
work related, shall be defrayed by PRIME under its Hospitalization Insurance
Scheme.
For work rendered by the assigned personnel in excess of the regular work
period agreed upon, the CLIENT shall be billed by PRIME the rates on overtime
pay set by the New Labor Code. The schedule of hourly billing rates per job
category for work rendered on overtime, whether done on a regular work day;
legal holiday, special holiday or rest day is herein attached as Annex B and
shall become an integral part of this contract.
PRIME shall bill the CLIENT for actual services rendered by sending CLIENT its
statement of account on the 16th and on the last day of each month. CLIENT
shall make payment within seven (7) working days from receipt of said
statement of account, unless the CLIENT, within the same period,
communicates to PRIME its refusal to pay on some valid grounds, e.g. errors in
computation, etc. In the latter case, CLIENT shall make payment within seven
(7) working days after the cause for non-payment is settled.
9. Provision for Rate Adjustment - In the event that wages are increased and
increased (sic) and additional fringe benefits in favor of the employees are
promulgated by law, decrees or regulation, or granted by mutual agreements
between PRIME and CLIENT, the above mentioned billing rates shall be
automatically adjusted to conform with the new levels set by law or by both
parties.
1. P78,030.00 as backwages (March 16, 1991 to April 30, 1993) not exceeding
3 years without qualification or deduction at P3,060.00 a month;
Going now to the second point of inquiry, which is the completion or non-
completion of the 4GL conversion system project, the testimony of Danilo
Calauag, the assistant vice-president and manager of International Operations
of Prime Manpower is most explicit. He testified on July 22, 1992 as follows:
Mr. Santelices was assigned initially to Tower 2; (p. 33 TSN.) then he was
assigned to Tower I (Ibid) because there was work to be done in Tower I that
necessitated his (complainants) transfer there (p. 35 Ibid) although the work
he (complainant) was performing in Tower II was still existing (supra) and
Tower II is still in progress (supra) meaning his original assignment is still on-
going up to the present (p. 36 Ibid).
The foregoing testimony expressly and clearly admitted that 4th conversion
project, more particularly Tower II to which complainant was originally
assigned is still an on-going project, and not yet completed as posited by
respondents. There was therefore no reason for complainants dismissal on
March 15, 1991 on the pretended ground which is completion of the project.
xxx[15]
We find no valid reason to disturb public respondents findings. No less than
the assistant vice-president and manager for International Operations of Prime
testified that the project for which private respondent was hired was still
16 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
existing at the time of his dismissal. It is settled that factual findings of quasi-
judicial agencies like the Labor Arbiter and the NLRC are generally accorded not
only respect but even finality if such findings are supported by substantial
evidence.[16]
The petitioner also faults the public respondent in affirming the disposition
of the Labor Arbiter holding it solidarily liable with Prime for all the monetary
claims of private respondent. It insists that it is not an employer of private
respondent. It contends that private respondent is an employee of Prime and
he was merely assigned by Prime to the petitioner to work on the 4th GL
Environment Conversion Project of PCIB.
We are not persuaded.
The petitioner, through PCIB, contracted Prime to provide it with qualified
personnel to work on the computer conversion project of PCIB.[17] The External
Job Contract between Prime and PCIB must be read in conjunction with the
Computer Services Agreement between PCIB and the petitioner. Under the
Computer Services Agreement, the petitioner shall direct and supervise the
computer conversion project of PCIB while PCIB shall provide the petitioner
with data encoders and computer attendants to work on the project. Pursuant
to said Agreement, PCIB called on Prime to furnish the petitioner with the
needed personnel, one of whom was private respondent. Hence, although the
parties in the External Job Contract are only Prime and PCIB, the legal
consequences of such contract must also be made to apply to the
petitioner. Under the circumstances, PCIB merely acted as a conduit between
the petitioner and Prime. The project was under the management and
supervision of the petitioner and it was the petitioner which exercised control
over the persons working on the project.
Under the law, any person (hereinafter referred to as the principal
employer) who enters into an agreement with a job contractor, either for the
performance of a specified work or for the supply of manpower, assumes
responsibility over the employees of the latter.[18] However, for the purpose of
determining the extent of the principal employers liability, the law makes a
distinction between legitimate job contracting and labor-only contracting.
Article 106 of the Labor Code states:
Sec. 8. Job contracting. - There is job contracting permissible under the Code if
the following conditions are met:
(2) The contractor has substantial capital or investment in the form of tools,
equipment, machineries, work premises, and other materials which are
necessary in the conduct of his business.
(1) Does not have substantial capital or investment in the form of tools,
equipment, machineries, work premises and other materials; and
(2) The workers recruited and placed by such person are performing activities
which are directly related to the principal business or operations of the
employer in which workers are habitually employed.
Facts:
In 1985, Philippine Commercial International Bank (PCIB) commenced its 4th
GLEnvironment Conversion Project intended to link all existing computer
systemswithin PCIB and its various branches around the country. It entered
into a ComputerServices Agreement with petitioner PCI Automation Center,
Inc. (PCI-AC), underwhich petitioner obligated itself to direct, supervise and run
the development of thesoftware, computer software applications and computer
system of PCIB. On theother hand, PCIB agreed to provide the petitioner with
encoders and computerattendants, among others.
3
To comply with its obligation to procure manpower for the petitioner, PCIB
engagedthe services of Prime Manpower Resources Development, Inc. (Prime).
PCIB andPrime entered into an External Job ContractOn September 20, 1985,
private respondent Hector Santelices was hired by Primeand assigned to
petitioner as a data encoder to work on the 4th GL EnvironmentConversion
Project of PCIB.
5
However, on March 18, 1991, Prime decided toterminate private respondent's
services after it was informed by the petitioner thathis services were no longer
needed in the project
ISSUE:
Is Hector employee of PCI Automation(Job Contracting vs Labor-Only
Contracting)(extent of liability)
HELD:
The petitioner, through PCIB, contracted Prime to provide it with qualified
personnelto work on the computer conversion project of PCIB.
17
The External Job Contractbetween Prime and PCIB must be read in conjunction
with the Computer
Services Agreement between PCIB and the petitioner. Under the Computer Serv
ices Agreement, the petitioner shall direct and supervise the computer
conversion projectof PCIB while PCIB shall provide the petitioner with data
encoders and computerattendants to work on the project. Pursuant to said
Agreement, PCIB called onPrime to furnish the petitioner with the needed
personnel, one of whom was privaterespondent. Hence, although the parties in
- versus -
PERALTA, J.:
Assailed in this petition for review under Rule 45 of the Rules of Court are the
Court of Appeals (1) Decision[1] dated March 11, 2004 in CA-G.R. SP No.
73992, which dismissed the Petition for Certiorari of petitioners Zenaida
Bergante (Bergante) and Herminigildo Inguillo (Inguillo); and
(2) Resolution dated September 17, 2004 denying petitioners' Motion for
[2]
Reconsideration. The appellate court sustained the ruling of the National Labor
Relations Commission (NLRC) that petitioners were validly dismissed pursuant
to a Union Security Clause in the collective bargaining agreement.
The facts of the case are as follows:
During the lifetime of the CBA, Bergante, Inguillo and several FPSI employees
joined another union, the Nagkakaisang Lakas ng Manggagawa (NLM), which
was affiliated with a federation called KATIPUNAN (NLM-KATIPUNAN, for
brevity). Subsequently, NLM-KATIPUNAN filed with the Department of Labor
and Employment (DOLE) an intra-union dispute[7] against FPSILU and FPSI. In
said case, the Med-Arbiter decided[8] in favor of FPSILU. It also ordered the
officers and members of NLM-KATIPUNAN to return to FPSILU the amount
of P90,000.00 pertaining to the union dues erroneously collected from the
employees. Upon finality of the Med-Arbiter's Decision, a Writ of
Execution[9] was issued to collect the adjudged amount from NLM-
KATIPUNAN. However, as no amount was recovered, notices of garnishment
were issued to United Coconut Planters Bank (Kalookan City Branch)[10] and to
FPSI[11] for the latter to hold for FPSILU the earnings of Domingo Grutas, Jr.
(Grutas) and Inguillo, formerly FPSILU's President and Secretary for Finance,
respectively, to the extent of P13,032.18. Resultantly, the amount of P5,140.55
was collected,[12] P1,695.72 of which came from the salary of Grutas, while
the P3,444.83 came from that of Inguillo.
Meanwhile, on March 29, 1996, the executive board and members of the
FPSILU addressed a document dated March 18, 1996 denominated as
Petisyon[13] to FPSI's general manager, Amparo Policarpio (Policarpio), seeking
the termination of the services of the following employees, namely: Grutas,
Yolanda Tapang, Shirley Tapang, Gerry Trinidad, Gilbert Lucero, Inguillo,
Bergante, and Vicente Go, on the following grounds:[14] (1) disloyalty to the
Union by separating from it and affiliating with a rival Union, the NLM-
KATIPUNAN; (2) dereliction of duty by failing to call periodic membership
meetings and to give financial reports; (3) depositing Union funds in the names
of Grutas and former Vice-President Yolanda Tapang, instead of in the name of
FPSILU, care of the President; (4) causing damage to FPSI by deliberately
slowing down production, preventing the Union to even attempt to ask for an
increase in benefits from the former; and (5) poisoning the minds of the rest of
the members of the Union so that they would be enticed to join the rival union.
On May 13, 1996, Inguillo filed with the NLRC a complaint against FPSI and/or
Policarpio (respondents) for illegal withholding of salary and damages, docketed
as NLRC-NCR-Case No. 00-05-03036-96.[15]
On May 16, 1996, respondents terminated the services of the employees
mentioned in the Petisyon.
24 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
The following day, two (2) separate complaints for illegal dismissal,
reinstatement and damages were filed against respondents by: (1) NLM-
KATIPUNAN, Grutas, Trinidad, Bergante, Yolanda Tapang, Go, Shirley Tapang
and Lucero[16] (Grutas complaint, for brevity); and (2) Inguillo[17] (Inguillo
complaint). Both complaints were consolidated with Inguillo's prior complaint
for illegal withholding of salary, which was pending before Labor Arbiter Manuel
Manansala. After the preliminary mandatory conference, some of the
complainants agreed to amicably settle their cases. Consequently, the Labor
Arbiter issued an Order[18] dated October 1, 1996, dismissing with prejudice the
complaints of Go, Shirley Tapang, Yolanda Tapang, Grutas,
and Trinidad. [19]
Lucero also settled the case after receiving his settlement
money and executing a Quitclaim and Release in favor of FPSI and
Policarpio.[20]
Zenaida Bergante
Separation pay.................P43,225.00
Legal Holiday Pay........... 839.00
Total 44,064.00
SO ORDERED.[25]
Bergante and Inguillo appealed before the NLRC, which reversed the Labor
Arbiter's Decision in a Resolution[26] dated June 8, 2001, the dispositive portion
of which provides:
WHEREFORE, the assailed decision is set aside. Respondents are
hereby ordered to reinstate complainants Inguillo and Bergante
with full backwages from the time of their dismissal up [to] their
actual reinstatement. Further, respondents are also directed to
pay complainant Inguillo the amount representing his withheld
salary for the period March 15, 1998 to April 16, 1998. The sum
corresponding to ten percent (10%) of the total judgment award
by way of attorney's fees is likewise ordered. All other claims are
ordered dismissed for lack of merit.
SO ORDERED.[27]
In reversing the Labor Arbiter, the NLRC[28] ratiocinated that respondents failed
to present evidence to show that Bergante and Inguillo committed acts inimical
to FPSILU's interest. It also observed that, since the two (2) were not informed
of their dismissal, the justification given by FPSI that it was merely constrained
to dismiss the employees due to persistent demand from the Union clearly
proved the claim of summary dismissal and violation of the employees' right to
due process.
Respondents filed a Motion for Reconsideration, which was referred by the
NLRC to Executive Labor Arbiter Vito C. Bose for report and
recommendation. In its Resolution[29] dated August 26, 2002, the NLRC
adopted in toto the report and recommendation of Arbiter Bose which set aside
its previous Resolution reversing the Labor Arbiter's Decision. This time, the
NLRC held that Bergante and Inguillo were not illegally dismissed as
respondents merely put in force the CBA provision on the termination of the
SO ORDERED.[30]
Not satisfied with the disposition of their complaints, Bergante and Inguillo filed
a petition for certiorari under Rule 65 of the Rules of Court with the Court of
Appeals (CA). The CA dismissed the petition for lack of merit[31] and denied the
subsequent motion for reconsideration.[32] In affirming the legality of the
dismissal, the CA ratiocinated, thus:
The Court is now tasked to determine whether the enforcement of the aforesaid
Union Security Clause justified herein petitioners' dismissal from the service.
32 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
In terminating the employment of an employee by enforcing the Union Security
Clause, the employer needs only to determine and prove that: (1) the union
security clause is applicable; (2) the union is requesting for the enforcement of
the union security provision in the CBA; and (3) there is sufficient evidence to
support the union's decision to expel the employee from the union or
company.[43]
We hold that all the requisites have been sufficiently met and FPSI was justified
in enforcing the Union Security Clause, for the following reasons:
First. FPSI was justified in applying the Union Security Clause, as it was a valid
provision in the CBA, the existence and validity of which was not questioned by
either party. Moreover, petitioners were among the 93 employees who affixed
their signatures to the document that ratified the CBA. They cannot now turn
their back and deny knowledge of such provision.
Third. FPSILU's decision to ask for the termination of the employees in the
Petisyon was justified and supported by the evidence on record. Bergante and
Inguillo were undisputably former members of FPSILU. In fact, Inguillo was the
Secretary of Finance, the underlying reason why his salary was garnished to
satisfy the judgment of the Med-Arbiter who ordered NLM-KATIPUNAN to return
the Union dues it erroneously collected from the employees. Their then
affiliation with FPSILU was also clearly shown by their signatures in the
document which ratified the CBA. Without a doubt, they committed acts of
disloyalty to the Unionwhen they failed not only to maintain their membership
but also disaffiliated from it. They abandoned FPSILU and even joined another
union which works against the former's interests. This is evident from the intra-
union dispute filed by NLM-KATIPUNAN against FPSILU. Once affiliated with
33 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
NLM-KATIPUNAN, Bergante and Inguillo proceeded to recruit other employees
to disaffiliate from FPSILU and even collected Union dues from them.
There are two (2) aspects which characterize the concept of due process under
the Labor Code: one is substantivewhether the termination of employment was
based on the provisions of the Labor Code or in accordance with the prevailing
jurisprudence; the other is procedural - the manner in which the dismissal was
effected.
The second aspect of due process was clarified by the Court in King of Kings
Transport v. Mamac,[48] stating, thus:
In the present case, the required two notices that must be given to herein
petitioners Bergante and Inguillo were lacking. The records are bereft of any
notice that would have given a semblance of substantial compliance on the part
of herein respondents. Respondents, however, aver that they had furnished the
employees concerned, including petitioners, with a copy of FPSILU's
Petisyon. We cannot consider that as compliance with the requirement of either
the first notice or the second notice. While the Petisyon enumerated the several
grounds that would justify the termination of the employees mentioned therein,
yet such document is only a recommendation by the Union upon which the
35 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
employer may base its decision. It cannot be considered a notice of
termination. For as agreed upon by FPSI and FPSILU in their CBA, the latter
may only recommend to the former a Union member's suspension or
dismissal. Nowhere in the controverted Union Security Clause was there a
mention that once the union gives a recommendation, the employer is bound
outright to proceed with the termination.
Even assuming that the Petisyon amounts to a first notice, the employer
cannot be deemed to have substantially complied with the procedural
requirements. True, FPSILU enumerated the grounds in said Petisyon. But a
perusal of each of them leads Us to conclude that what was stated were
general descriptions, which in no way would enable the employees to
intelligently prepare their explanation and defenses. In addition, the Petisyon
did not provide a directive that the employees are given opportunity to submit
their written explanation within a reasonable period. Finally, even if We are to
assume that the Petisyon is a second notice, still, the requirement of due
process is wanting. For as We have said, the second notice, which is aimed to
inform the employee that his service is already terminated, must state that the
employer has considered all the circumstances which involve the charge and
the grounds in the first notice have been established to justify the severance of
employment. After the claimed dialogue between Policarpio and the employees
mentioned in the Petisyon, the latter were simply told not to report for work
anymore.
These defects are bolstered by Bergante and Inguillo who remain steadfast in
denying that they were notified of the specific charges against them nor were
they given any memorandum to that effect. They averred that had they been
informed that their dismissal was due to FPSILU's demand/petition, they could
have impleaded the FPSILU together with the respondents. The Court has
always underscored the significance of the two-notice rule in dismissing an
employee and has ruled in a number of cases that non-compliance therewith is
tantamount to deprivation of the employees right to due process.[51]
SO ORDERED.
In 1991, FPSI and First Philippine Scales Industries Labor Union (FPSILU)
entered into a Collective Bargaining Agreement (CBA) for a period of five (5)
years in a document entitled RATIPIKASYON NG KASUNDUAN. Bergante and
Inguillo, who were members of FPSILU, signed the said document.
Bergante, Inguillo and several FPSI employees joined another union, the
Nagkakaisang Lakas ng Manggagawa (NLM). [The latter] filed with the
Department of Labor and Employment (DOLE) an intra-union dispute against
FPSILU and FPSI. Meanwhile, on March 29, 1996, the executive board and
members of the FPSILU addressed a document dated March 18, 1996
denominated as “Petisyon” to FPSI's general manager, Amparo Policarpio
(Policarpio), seeking the termination of the services of [several employees,
including herein petitioners. This was granted upon by FPSI, which terminated,
among others, herein petitioners.]
In their Petition, Bergante and Inguillo assail the legality of their termination
based on the Union Security Clause in the CBA between FPSI and FPSILU.
(1) Yes. The Labor Code of the Philippines has several provisions under which
an employee may be validly terminated, namely: (1) just causes under Article
282; (2) authorized causes under Article 283; (3) termination due to disease
under Article 284; and (4) termination by the employee or resignation under
Article 285. While the said provisions did not mention as ground the
enforcement of the Union Security Clause in the CBA, the dismissal from
employment based on the same is recognized and accepted in our jurisdiction.
Bergante and Inguillo assail the legality of their termination based on the Union
Security Clause in the CBA between FPSI and FPSILU. Article II[42] of the CBA
pertains to Union Security and Representatives, which provides:
The stipulations in the CBA authorizing the dismissal of employees are of equal
import as the statutory provisions on dismissal under the Labor Code, since a
CBA is the law between the company and the Union, and compliance therewith
is mandated by the express policy to give protection to labor. In Caltex Refinery
Employees Association (CREA) v. Brillantes, the Court expounded on the
effectiveness of union security clause when it held that it is one intended to
strengthen the contracting union and to protect it from the fickleness or perfidy
of its own members. For without such safeguards, group solidarity becomes
uncertain; the union becomes gradually weakened and increasingly vulnerable
to company machinations. In this security clause lies the strength of the union
during the enforcement of the collective bargaining agreement. It is this
clause that provides labor with substantial power in collective bargaining.
In the present case, the required two notices that must be given to herein
petitioners Bergante and Inguillo were lacking. Respondents, however, aver
that they had furnished the employees concerned, including petitioners, with a
copy of FPSILU's “Petisyon.” While the “Petisyon” enumerated the several
41 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
grounds that would justify the termination of the employees mentioned therein,
yet such document is only a recommendation by the Union upon which the
employer may base its decision. It cannot be considered a notice of
termination. A perusal of each of [the grounds stated therein] leads Us to
conclude that what was stated were general descriptions, which in no way
would enable the employees to intelligently prepare their explanation and
defenses.
Policarpio's allegations are self-serving. Except for her claim as stated in the
respondent's Position Paper, nowhere from the records can We find that
Bergante and Inguillo were accorded the opportunity to present evidence in
support of their defenses. Policarpio relied heavily on the “Petisyon” of
FPSILU. She failed to convince Us that during the dialogue, she was able to
ascertain the validity of the charges mentioned in the “Petisyon.” In her futile
attempt to prove compliance with the procedural requirement, she reiterated
that the objective of the dialogue was to provide the employees “the
opportunity to receive the act of grace of FPSI by giving them an amount
equivalent to one-half (½) month of their salary for every year of service.” We
are not convinced. We cannot even consider the demand and counter-offer for
the payment of the employees as an amicable settlement between the parties
because what took place was merely a discussion only of the amount which the
employees are willing to accept and the amount which the respondents are
willing to give. Such non-compliance is also corroborated by Bergante and
Inguillo in their pleadings denouncing their unjustified dismissal. In fine, We
hold that the dialogue is not tantamount to the hearing or conference
prescribed by law.
ARMANDO G. YRASUEGUI,
Petitioner,
- versus -
PHILIPPINE AIRLINES, INC.,
Respondent.
He is now before this Court via a petition for review on certiorari claiming
that he was illegally dismissed. To buttress his stance, he argues that (1) his
dismissal does not fall under 282(e) of the Labor Code; (2) continuing
adherence to the weight standards of the company is not a bona fide
occupational qualification; and (3) he was discriminated against
because other overweight employees were promoted instead of being
disciplined.
After a meticulous consideration of all arguments pro and con, We uphold the
legality of dismissal. Separation pay, however, should be awarded in favor of
the employee as an act of social justice or based on equity. This is so because
his dismissal is not for serious misconduct. Neither is it reflective of his moral
character.
The Facts
On April 26, 1989, petitioner weighed 209 pounds, 43 pounds over his
ideal weight. In line with company policy, he was removed from flight duty
effective May 6, 1989 to July 3, 1989. He was formally requested to trim down
to his ideal weight and report for weight checks on several
dates. He was also told that he may avail of the services of the company
physician should he wish to do so. He was advised that his case will be
evaluated on July 3, 1989.[2]
Dear Sir:
Despite the lapse of a ninety-day period given him to reach his ideal
weight, petitioner remained overweight. On January 3, 1990, he was informed
of the PAL decision for him to remain grounded until such time that he
satisfactorily complies with the weight standards. Again, he was directed to
report every two weeks for weight checks.
Petitioner failed to report for weight checks. Despite that, he was given
one more month to comply with the weight requirement. As usual, he was
asked to report for weight check on different dates. He was reminded that his
grounding would continue pending satisfactory compliance with the weight
standards.[5]
Again, petitioner failed to report for weight checks, although he was seen
submitting his passport for processing at the PAL Staff Service Division.
On April 17, 1990, petitioner was formally warned that a repeated refusal
to report for weight check would be dealt with accordingly. He was given
another set of weight check dates.[6] Again, petitioner ignored the directive and
did not report for weight checks. On June 26, 1990, petitioner was required to
explain his refusal to undergo weight checks.[7]
When petitioner tipped the scale on July 30, 1990, he weighed at 212
pounds. Clearly, he was still way over his ideal weight of 166 pounds.
From then on, nothing was heard from petitioner until he followed up his
case requesting for leniency on the latter part of 1992. He weighed at 219
poundson August 20, 1992 and 205 pounds on November 5, 1992.
On June 15, 1993, petitioner was formally informed by PAL that due to
his inability to attain his ideal weight, and considering the utmost leniency
extended to him which spanned a period covering a total of almost five (5)
years, his services were considered terminated effective immediately.[11]
SO ORDERED.[14]
The Labor Arbiter held that the weight standards of PAL are reasonable in
view of the nature of the job of petitioner.[15] However, the weight standards
need not be complied with under pain of dismissal since his weight did not
46 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
hamper the performance of his duties.[16] Assuming that it did, petitioner could
be transferred to other positions where his weight would not be a negative
factor.[17] Notably, other overweight employees, i.e., Mr. Palacios, Mr. Cui, and
Mr. Barrios, were promoted instead of being disciplined.[18]
On March 6, 2000, PAL appealed the denial of its motion to quash to the
NLRC. [23]
Like the Labor Arbiter, the NLRC found the weight standards of PAL to be
reasonable. However, it found as unnecessary the Labor Arbiter holding that
petitioner was not remiss in the performance of his duties as flight steward
despite being overweight. According to the NLRC, the Labor Arbiter should have
limited himself to the issue of whether the failure of petitioner to attain his ideal
weight constituted willful defiance of the weight standards of PAL.[28]
SO ORDERED.[32]
The CA opined that there was grave abuse of discretion on the part of
the NLRC because it looked at wrong and irrelevant considerations[33] in
evaluating the evidence of the parties. Contrary to the NLRC ruling, the weight
standards of PAL are meant to be a continuing qualification for an employees
position.[34]The failure to adhere to the weight standards is an analogous
cause for the dismissal of an employee under Article 282(e) of the Labor Code
in relation to Article 282(a). It is not willful disobedience as the NLRC seemed
to suggest.[35] Said the CA, the element of willfulness that the NLRC decision
cites is an irrelevant consideration in arriving at a conclusion on whether the
dismissal is legally proper.[36] In other words, the relevant question to ask is
not one of willfulness but one of reasonableness of the standard and whether or
not the employee qualifies or continues to qualify under this standard.[37]
Just like the Labor Arbiter and the NLRC, the CA held that the weight standards
of PAL are reasonable.[38] Thus, petitioner was legally dismissed because he
repeatedly failed to meet the prescribed weight standards.[39] It is obvious that
the issue of discrimination was only invoked by petitioner for purposes of
escaping the result of his dismissal for being overweight.[40]
48 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
On May 10, 2005, the CA denied petitioners motion for
reconsideration. [41]
Elaborating on its earlier ruling, the CA held that the weight
standards of PALare a bona fide occupational qualification which, in case of
violation, justifies an employees separation from the service.[42]
Issues
In this Rule 45 petition for review, the following issues are posed for resolution:
I.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED IN HOLDING THAT PETITIONERS OBESITY CAN BE A
GROUND FOR DISMISSAL UNDER PARAGRAPH (e) OF ARTICLE
282 OF THE LABOR CODE OF THE PHILIPPINES;
II.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED IN HOLDING THAT PETITIONERS DISMISSAL FOR OBESITY
CAN BE PREDICATED ON THE BONA FIDE OCCUPATIONAL
QUALIFICATION (BFOQ) DEFENSE;
III.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY ERRED IN
HOLDING THAT PETITIONER WAS NOT UNDULY DISCRIMINATED
AGAINST WHEN HE WAS DISMISSED WHILE OTHER OVERWEIGHT
CABIN ATTENDANTS WERE EITHER GIVEN FLYING DUTIES OR
PROMOTED;
IV.
WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED WHEN IT BRUSHED ASIDE PETITIONERS CLAIMS FOR
REINSTATEMENT [AND] WAGES ALLEGEDLY FOR BEING
MOOT AND ACADEMIC.[43] (Underscoring supplied)
Our Ruling
The appellate Court disagreed and held that morbid obesity is a disability
under the Rehabilitation Act and that respondent discriminated against Cook
based on perceived disability. The evidence included expert testimony that
morbid obesity is a physiological disorder. It involves a dysfunction of both the
metabolic system and the neurological appetite suppressing signal system,
which is capable of causing adverse effects within the musculoskeletal,
respiratory, and cardiovascular systems. Notably, the Court stated that
mutability is relevant only in determining the substantiality of the limitation
flowing from a given impairment, thus mutability only precludes those
conditions that an individual can easily and quickly reverse by behavioral
alteration.
In fine, We hold that the obesity of petitioner, when placed in the context
of his work as flight attendant, becomes an analogous cause under Article
282(e) of the Labor Code that justifies his dismissal from the service. His
obesity may not be unintended, but is nonetheless voluntary. As the CA
correctly puts it, [v]oluntariness basically means that the just cause is solely
attributable to the employee without any external force influencing or
controlling his actions. This element runs through all just causes under Article
282, whether they be in the nature of a wrongful action or omission. Gross and
habitual neglect, a recognized just cause, is considered voluntary although it
lacks the element of intent found in Article 282(a), (c), and (d).[54]
First, the Constitution,[59] the Labor Code,[60] and RA No. 7277[61] or the
Magna Carta for Disabled Persons[62] contain provisions similar to BFOQ.
On board an aircraft, the body weight and size of a cabin attendant are
important factors to consider in case of emergency. Aircrafts have constricted
cabin space, and narrow aisles and exit doors. Thus, the arguments of
respondent that [w]hether the airlines flight attendants are overweight or not
has no direct relation to its mission of transporting passengers to their
destination; and that the weight standards has nothing to do with airworthiness
of respondents airlines, must fail.
Too, the weight standards of PAL provide for separate weight limitations
based on height and body frame for both male and female cabin attendants. A
progressive discipline is imposed to allow non-compliant cabin attendants
sufficient opportunity to meet the weight standards. Thus, the clear-cut rules
obviate any possibility for the commission of abuse or arbitrary action on the
part of PAL.
Indeed, except for pointing out the names of the supposed overweight cabin
attendants, petitioner miserably failed to indicate their respective ideal weights;
weights over their ideal weights; the periods they were allowed to fly despite
their being overweight; the particular flights assigned to them; the
discriminating treatment they got from PAL; and other relevant data that could
have adequately established a case of discriminatory treatment by PAL. In the
words of the CA, PAL really had no substantial case of discrimination to
meet.[82]
As his last contention, petitioner avers that his claims for reinstatement and
wages have not been mooted. He is entitled to reinstatement and his
full backwages, from the time he was illegally dismissed up to the time that the
NLRC was reversed by the CA.[92]
Contrary to the allegation of petitioner that PAL did everything under the
sun to frustrate his immediate return to his previous position,[94] there is
evidence that PAL opted to physically reinstate him to a substantially equivalent
position in accordance with the order of the Labor
Arbiter.[95] In fact, petitioner duly received the return to work notice
on February 23, 2001, as shown by his signature.[96]
VERSION 1:
FACTS: THIS case portrays the peculiar story of an international flight steward
who was dismissed because of his failure to adhere to the weight standards of
the airline company.
The proper weight for a man of his height and body structure is from 147 to
166 pounds, the ideal weight being 166 pounds, as mandated by the Cabin and
Crew Administration Manual of PAL.
In 1984, the weight problem started, which prompted PAL to send him to an
extended vacation until November 1985. He was allowed to return to work once
he lost all the excess weight. But the problem recurred. He again went on leave
without pay from October 17, 1988 to February 1989.
Despite the lapse of a ninety-day period given him to reach his ideal weight,
petitioner remained overweight. On January 3, 1990, he was informed of the
PAL decision for him to remain grounded until such time that he satisfactorily
complies with the weight standards. Again, he was directed to report every two
weeks for weight checks, which he failed to comply with.
On April 17, 1990, petitioner was formally warned that a repeated refusal to
report for weight check would be dealt with accordingly. He was given another
set of weight check dates, which he did not report to.
On November 13, 1992, PAL finally served petitioner a Notice of Administrative
Charge for violation of company standards on weight requirements. Petitioner
insists that he is being discriminated as those similarly situated were not
treated the same.
On June 15, 1993, petitioner was formally informed by PAL that due to his
inability to attain his ideal weight, “and considering the utmost leniency”
extended to him “which spanned a period covering a total of almost five (5)
years,” his services were considered terminated “effective immediately.”
LABOR ARBITER: held that the weight standards of PAL are reasonable in view
of the nature of the job of petitioner. However, the weight standards need not
be complied with under pain of dismissal since his weight did not hamper the
performance of his duties.
NLRC affirmed.
VERSION 2:
Facts: Complainant was an international flight steward who was dismissed
because of his failure to adhere to the weight standards of the company.
Issue: Was the dismissal valid?
Held: SC upheld the legality of dismissal. Separation pay, however, should be
awarded in favor of the employee as an act of social justice or based on equity.
This is so because his dismissal is not for serious misconduct. Neither is it
reflective of his moral character.
The obesity of petitioner, when placed in the context of his work as flight
attendant, becomes an analogous cause under Article 282(e) of the Labor
Code. His obesity may not be unintended, but is nonetheless voluntary.
“[V]oluntariness basically means that the just cause is solely attributable to the
employee without any external force influencing or controlling his actions. This
element runs through all just causes under Article 282, whether they be in the
nature of a wrongful action or omission. Gross and habitual neglect, a
recognized just cause, is considered voluntary although it lacks the element of
intent found in Article 282(a), (c), and (d).”
Employment in particular jobs may not be limited to persons of a particular sex,
religion, or national origin unless the employer can show that sex, religion, or
national origin is an actual qualification for performing the job.
In Star Paper Corporation v. Simbol, this Court held that in order to justify a
BFOQ, the employer must prove:
(1) the employment qualification is reasonably related to the essential
operation of the job involved; and
(2) that there is factual basis for believing that all or substantially all persons
meeting the qualification would be unable to properly perform the duties of the
job.
In short, the test of reasonableness of the company policy is used because it is
parallel to BFOQ. BFOQ is valid “provided it reflects an inherent quality
reasonably necessary for satisfactory job performance.”
The weight standards of PAL are reasonable. A common carrier, from the
nature of its business and for reasons of public policy, is bound to observe
extraordinary diligence for the safety of the passengers it transports.
The primary objective of PAL in the imposition of the weight standards for cabin
crew is flight safety. It cannot be gainsaid that cabin attendants must maintain
agility at all times in order to inspire passenger confidence on their ability to
care for the passengers when something goes wrong.
Exceptionally, separation pay is granted to a legally dismissed employee as an
act “social justice,” or based on “equity.” Provided the dismissal:
Entitled to separation pay, even if terminated for just cause
(1) was not for serious misconduct; and
(2) does not reflect on the moral character of the employee.
Thus, he was granted separation pay equivalent to one-half (1/2) month’s pay
for every year of service.
© 2010 www.pinoylegal.com
63 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
G.R. No. 197384 January 30, 2013
BRION, J.:
Before the Court is the petition for review on certiorari1 in caption, assailing the
decision2 dated March 4, 2011 and the resolution3 dated June 13, 2011 of the
Court of Appeals (CA) in CA-G.R. SP No. 112760.
The Antecedents
In a complaint4 dated August 10, 2007, respondent Efren I. Sagad charged the
petitioner Sampaguita Auto Transport Corporation (company); Andy Adagio,
President and General Manager; Monina Ariola Adagio, Vice-President and
Finance Manager; Virgilio Olunan (referred to as Olonan by Sagad), Operations
Manager; and Gerry Dimate, HRO Officer, with illegal dismissal and damages
plus attorney's fees.
Sagad alleged that on May 14, 2006, the company hired him as a regular bus
driver, not as a probationary employee as the company claimed. He disowned
his purported signature on the contract of probationary Employment5 submitted
in evidence by the company. He maintained that his signature was forged. He
further alleged that on November 5, 2006, he was dismissed by the company
for allegedly conniving with conductor Vitola in issuing tickets outside their
assigned route.
The company further alleged that on October 13, 2006, it conducted a thorough
evaluation of Sagad’s performance. It requested conductors who had worked
with Sagad to comment on his work. Conductors A. Hemoroz and Israel Lucero
revealed that Sagad proposed that they cheat on the company by way of an
unreported early bus trip.10Dispatcher E. Castillo likewise submitted a negative
report and even recommended the termination of Sagad’s employment.11 The
company also cited Sagad’s involvement in a hit-and-run accident on
September 9, 2006 along Commonwealth Avenue in Quezon City while on a trip
(bus with Plate No. NYK-216 and Body No. 3094).12Allegedly, Sagad did not
report the accident to the company.
In her decision dated May 8, 2008,14 Labor Arbiter Marita V. Padolina dismissed
the complaint for lack of merit. She ruled that the company successfully proved
that Sagad failed to qualify as a regular employee. Labor Arbiter Padolina
stressed that on October 15, 2006, the company ordered Sagad not to work
anymore as his probationary employment had expired. While Sagad claimed
that he worked until November 5, 2006, she pointed out that "there is no
record to show that he worked beyond October 14, 2006."15
Sagad appealed the Labor Arbiter’s ruling. On July 10, 2009, the National Labor
Relations Commission (NLRC) rendered a decision16 declaring that Sagad had
been illegally dismissed. It held that Sagad was not a probationary employee as
the company failed to prove by substantial evidence the due execution of
Sagad’s supposed probationary employment contract. It found credible Sagad’s
submission that his signature on the purported contract was a forgery. It
The NLRC disregarded Sagad’s alleged infractions that served as grounds for
the termination of his employment, holding that his dismissal was not based on
these infractions but on his alleged connivance with a conductor in defrauding
the company. The NLRC awarded Sagad backwages of ₱559,050.00 and
separation pay of ₱45,000.00 in lieu of reinstatement, in view of the strained
relations between the parties resulting from the filing of the complaint.
Both parties moved for reconsideration of the NLRC decision, to no avail. The
company then elevated the case to the CA through a petition for certiorari
under Rule 65 of the Rules of Court.
The CA Decision
The CA, in its currently assailed decision,18 affirmed the NLRC rulings in toto,
finding no grave abuse of discretion in the labor tribunal’s reversal of the labor
arbiter’s dismissal of the complaint. It found the "genuineness of respondent’s
signature on the employment contract is tainted with doubt."19 It agreed with
the NLRC that Sagad had been illegally dismissed considering, as it noted, that
the grounds the company relied upon for the termination of Sagad’s
employment were not among the causes for a valid dismissal enumerated
under Article 282 of the Labor Code. It added that even if it had been
otherwise, the company failed to comply with the twin-notice requirement in
employee dismissals.
The Petition
The company seeks the reversal of the appellate court’s decision through the
present appeal,20 and raises the following issues:
The company points out that one such piece of competent and compelling
evidence is Sagad’s admission of the nature of his employment expressed in his
letter dated October 16, 2006, addressed to Adagio and Olunan.21 In this letter,
he asked for another chance to work with the company.
The company posits that with the letter, Sagad acknowledged that his
probationary employment had expired.22
The company disputes the NLRC‘s basis for the award — Sagad’s purported
average daily commission of ₱1,000.00 — as non-existent. They contend in this
respect that the payslips Sagad submitted to the NLRC rarely showed his daily
commission to reach ₱1,000.00. It explains that Sagad presented only one (1)
payslip for November 2006, five (5) for October 2006, one (1) each for July,
August and September 2006. It posits that the company payrolls from June 29,
2006 to October 8, 2006 showed that his daily commissions were below
₱1,000.00.
Through his Comment (on the Petition),23 Sagad asks that the petition be
denied due course. He presents the following arguments:
Also, the company grounds in Castillo’s evaluation report27 (that the company
relied upon to justify the non-renewal of his contract) are not just causes for
the termination of his employment as the CA correctly ruled.
This Court, as a rule, only reviews questions of law in a Rule 45 petition for
review. In labor cases, the factual findings of the labor arbiter and of the NLRC
are generally respected and, if supported by substantial evidence, accorded
finality. This rule, however, is not absolute. When the factual findings of the CA
conflict with those of the labor authorities, the Court is forced to review the
evidence on record.29
In this case, the labor arbiter’s factual conclusions, on the one hand, and those
of the NLRC and the CA, on the other hand, differ. The labor arbiter found that
Sagad was a probationary employee and was validly dismissed for his failure to
qualify for regular employment, whereas the NLRC and the CA concluded that
he was a regular employee and was illegally dismissed. We thus find the need
to review the facts in the present labor dispute.
After a review of the records, we are convinced that Sagad was dismissed, not
as a probationary employee, but as one who had attained regular status. The
company’s evidence on Sagad’s purported hiring as a probationary employee is
inconclusive. To start with, Sagad denied that he entered into a probationary
employment contract with the company, arguing that the signature on the
supposed contract was not his.30 He also denied receiving the alleged
notice31 terminating his probationary employment. The same thing is true with
his purported letter32 asking that he be given another chance to work for the
company. He asserts that not only is the letter not in his handwriting, the
signature on the letter was also not his.
The company never refuted this particular assertion of Sagad and its silence
can only mean that Sagad remained in employment until November 4, 2006,
thereby attaining regular status as of that date. Under the law, "an employee
who is allowed to work after a probationary period shall be considered a regular
employee."35
The NLRC and the CA ruled in the affirmative. The labor tribunal opined that the
infractions which Sagad allegedly committed and which disqualified him from
attaining regular status are "unavailing" with respect to his dismissal because
The CA concurred with the NLRC but for a different reason. It declared that the
"grounds upon which petitioners based respondent’s termination from
employment, viz: ‘hindi lahat ng schedule nailalabas,’ ‘mababa ang revenue ng
bus, laging kasama ang asawa sa byahe’ and ‘maraming naririnig na kwento
tungkol sa kanya, nag-uutos ng conductor para kumita sa hindi magandang
paraan,’ xxx are not among those enumerated under Article 282 of the Labor
Code as just causes for termination of employment."37 The CA added that on
the assumption that the cited grounds can be considered just causes, the
company nonetheless failed to comply with the twin-notice requirement for the
termination of Sagad’s employment.
First. It is not disputed that the company called Sagad’s attention to his
negative actuations as a bus driver, which were reported by a company
evaluator38 who boarded his bus on September 21, 2006. The evaluator
reported that he was driving recklessly, racing and jostling for position on the
road, thereby jarring the passengers on their seats, and picking up passengers
on the middle of the road. He disputed the evaluator’s observations,39 claiming
that he could not have been driving as reported because his pregnant wife and
one of his children were with him on the bus at the time. He admitted,
however, that on one occasion, he chased an "Everlasting" bus to warn its
driver not to block him. He also admitted that once in a while, he sped up to
compensate for lost time in his trips.
Sagad’s explanation reveals more than what it stated. During his brief
employment with the company, he exhibited the tendency to speed up when he
finds the need for it, very obviously in violation of traffic rules, regulations and
company policy. Instead of negating the evaluator’s observations, his
admissions make them credible.
Second. He was also asked to react to the comments of conductors who had
worked with him (Hemoroz and Lucero) to the effect that he proposed to them
that they cheat on the company by making early (but not to be reported) bus
trips.40 Further, there was Castillo’s evaluation dated
Sagad’s position fails to convince us. We find no evidence that Hemoroz and
Lucero had an ax to grind against Sagad so that they would lie about their
impression of him as a bus driver. Significantly, their statements validate
Castillo’s own observation that he heard talks of Sagad’s orders to the
conductors for them to cheat on the company. The scheme, contrary to Sagad’s
explanation, can only be committed with the cooperation, or even at the
behest, of the driver, as the proposed scheme is for the bus to make
unscheduled, but unreported, early trips.
Again, Sagad’s stance fails to persuade us. Sagad’s statements vis-à-vis the
incident, as well as those of Laude, are belied by the Traffic Accident
Investigation Report45 which mentioned the "Unidentified driver of Public Utility
Bus with plate No. NYK-216 and Body No. 3094." The report was corroborated
by the sworn statements of Ronald Apura, driver of the Elf truck, UFF-597, the
second party in the incident,46 and Bibiana Fuentes, driver of the White Honda
City, WDV-422 (owned by Purefoods Hormel Co.), the first party in the
vehicular accident. There was also the letter to the company of Standard
Insurance Co., Inc. dated February 14, 200747 demanding the reimbursement
of ₱24,667.54 it paid to Purefoods Hormel Co. by way of damages sustained by
the Honda City.
(c) Fraud or willful breach by the employee of the trust reposed in him by
his employer or duly authorized representative;
Under the circumstances, Sagad has become a liability rather than an asset to
his employer, more so when we consider that he attempted to cheat on the
company or could have, in fact, defrauded the company during his brief tenure
as a bus driver. This calls to mind Castillo’s report on the low revenue of
Sagad’s bus, an observation which is validated by the company’s Daily
Operation Reports from June to October 2006.50
Even as we find a just cause for Sagad’s dismissal, we agree with the CA that
the company failed to comply with the two-notice rule. It failed to serve notice
of: (1) the particular acts for which Sagad was being dismissed on November 5,
2006 and (2) his actual dismissal. Consistent with our ruling in Agabon v.
NLRC, 52 we hold that the violation of Sagad's right to procedural due process
entitles him to an indemnity in the form of nominal damages. Considering the
circumstances in the present case, we deem it appropriate to award Sagad
₱30,000.00.
SO ORDERED.
FACTS:
Sagad alleged that on May 14, 2006, the company hired him as a regular bus d
river, not as a probationary employee as the company claimed. He disowned hi
s purported signature on the contract of probationary Employment submitted in
evidence by the company. He maintained that his signature was forged. He fur
ther alleged that on November 5, 2006, he was dismissed by the company for a
llegedly conniving with conductor Vitola in issuing tickets outside their assigned
route.
ISSUE:
RULING:
Yes. After a review of the records, Sagad was dismissed, not as a probationary
employee, but as one who had attained regular status.
Independently of the discussions of the LA, NLRC, and CA about the alleged for
egery of Sagad’s signature in the contract and even if the Court were to conside
r that Sagad went through a probationary period, the records indicate that he w
as retained even beyond the expiration of his supposed probationary employme
nt on October 14, 2006. As the NLRC noted, Sagad claimed that he was dismiss
ed by the company on November 5, 2006, after he was accused of conniving wi
th conductor Vitola in issuing tickets outside their assigned route. The company
never refuted this particular assertion of Sagad and its silence can only mean t
hat Sagad remained in employment until November 4, 2006, thereby attaining
regular status as of that date. Under the law, “an employee who is allowed to w
ork after a probationary period shall be considered a regular employee.”
REGALADO, J.:
This would have been just another illegal dismissal case were it not for the
controversial and unique situation that the marriage of herein petitioner, then a
classroom teacher, to her student who was fourteen (14) years her junior, was
considered by the school authorities as sufficient basis for terminating her
services.
On September 17, 1976, Executive Labor Arbiter Jose Y. Aguirre, Jr., without
conducting any formal hearing, rendered an "Award" in NLRC Case No. 956 in
favor of private respondent granting the clearance to terminate the
employment of petitioner. It was held therein that —
Petitioner, however, denied having received any copy of the affidavits referred
to. 10
The case was elevated by private respondent to the Minister of Labor who, on
March 30, 1977, reversed the decision of the National Labor Relations
Commission. The petitioner was, however, awarded six (6) months salary as
financial assistance. 13
On May 20, 1977, petitioner appealed the said decision to the Office of the
President of the Philippines. 14 After the corresponding exchanges, on
September 1, 1978 said office, through Presidential Executive Assistant Jacobo
C. Clave, rendered its decision reversing the appealed decision. Private
respondent was ordered to reinstate petitioner to her former position without
loss of seniority rights and other privileges and with full back wages from the
time she was not allowed to work until the date of her actual reinstatement. 15
In thus reconsidering his earlier decision, public respondent reasoned out in his
manifestation/comment filed on August 14, 1979 in this Court in the present
case:
That this Office did not limit itself to the legal issues involved in
the case, but went further to view the matter from the standpoint
of policy which involves the delicate task of rearing and educating
of children whose interest must be held paramount in the school
community, and on this basis, this Office deemed it wise to uphold
the judgment and action of the school authorities in terminating
the services of a teacher whose actuations and behavior, in the
belief of the school authorities, had spawned ugly rumors that had
cast serious doubts on her integrity, a situation which was
considered by them as not healthy for a school campus, believing
that a school teacher should at all times act with utmost
circumspection and conduct herself beyond reproach and above
suspicion; 19
In this petition for certiorari, petitioner relies on the following grounds for the
reversal of the aforesaid resolution of public respondent, viz.:
We first dispose of petitioner's claim that her right to due process was violated.
We do not agree. There is no denial of due process where a party was afforded
an opportunity to present his side. Also, the procedure by which issues are
resolved based on position papers, affidavits and other documentary evidence
is recognized as not violative of such right. Moreover, petitioner could have
insisted on a hearing to confront and cross-examine the affiants but she did not
do so, obviously because she was convinced that the case involves a question
of law. Besides, said affidavits were also cited and discussed by her in the
proceedings before the Ministry of Labor.
Now, on the merits. Citing its upright intention to preserve the respect of the
community toward the teachers and to strengthen the educational system,
private respondent submits that petitioner's actuations as a teacher constitute
serious misconduct, if not an immoral act, a breach of trust and confidence
reposed upon her and, thus, a valid and just ground to terminate her services.
It argues that as a school teacher who exercises substitute parental authority
over her pupils inside the school campus, petitioner had moral ascendancy over
Bobby Qua and, therefore, she must not abuse such authority and respect
extended to her. Furthermore, it charged petitioner with having allegedly
violated the Code of Ethics for teachers the pertinent provision of which states
that a "school official or teacher should never take advantage of his/her
position to court a pupil or student." 21
On the other hand, petitioner maintains that there was no ground to terminate
her services as there is nothing wrong with a teacher falling in love with her
pupil and, subsequently, contracting a lawful marriage with him. She argued
that she was dismissed because of her marriage with Bobby Qua This
contention was sustained in the aforesaid decision of the National Labor
Relations Commission thus:
After a painstaking perusal of the records, we are of the considered view that
the determination of the legality of the dismissal hinges on the issue of whether
or not there is substantial evidence to prove that the antecedent facts which
culminated in the marriage between petitioner and her student constitute
immorality and/or grave misconduct. To constitute immorality, the
circumstances of each particular case must be holistically considered and
evaluated in the light of prevailing norms of conduct and the applicable law.
Contrary to what petitioner had insisted on from the very start, what is before
us is a factual question, the resolution of which is better left to the trier of
facts.
We rule that public respondent acted with grave abuse of discretion. As vividly
and forcefully observed by him in his original decision:
As earlier stated, from the outset even the labor arbiter conceded that there
was no direct evidence to show that immoral acts were committed.
Nonetheless, indulging in a patently unfair conjecture, he concluded that "it is
however enough for a sane and credible mind to imagine and conclude what
transpired during those times." 25 In reversing his decision, the National Labor
Relations Commission observed that the assertions of immoral acts or conducts
are gratuitous and that there is no direct evidence to support such claim, 26 a
finding which herein public respondent himself shared.
We are, therefore, at a loss as to how public respondent could adopt the volte-
face in the questioned resolution, which we hereby reject, despite his prior
trenchant observations hereinbefore quoted. What is revealing however, is that
the reversal of his original decision is inexplicably based on unsubstantiated
surmises and non sequiturs which he incorporated in his assailed resolution in
this wise:
It would seem quite obvious that the avowed policy of the school in rearing and
educating children is being unnecessarily bannered to justify the dismissal of
petitioner. This policy, however, is not at odds with and should not be
capitalized on to defeat the security of tenure granted by the Constitution to
labor. In termination cases, the burden of proving just and valid cause for
dismissing an employee rests on the employer and his failure to do so would
result in a finding that the dismissal is unjustified.
The charge against petitioner not having been substantiated, we declare her
dismissal as unwarranted and illegal. It being apparent, however, that the
relationship between petitioner and private respondent has been inevitably and
severely strained, we believe that it would neither be to the interest of the
parties nor would any prudent purpose be served by ordering her
reinstatement.
WHEREFORE, the petition for certiorari is GRANTED and the resolution of public
respondent, dated December 6, 1978 is ANNULLED and SET ASIDE. Private
respondent Tay Tung High School, Inc. is hereby ORDERED to pay petitioner
backwages equivalent to three (3) years, without any deduction or
qualification, and separation pay in the amount of one (1) month for every year
of service.
SO ORDERED.
CHUA – QUA vs. CLAVE G.R. No. L-49549 August 30, 1990
Digested Case
A Landmark Case
FACTS:
This would have been just another illegal dismissal case were it not for the
controversial and unique situation that the marriage of herein petitioner, then a
classroom teacher, to her student who was fourteen (14) years her junior, was
considered by the school authorities as sufficient basis for terminating her
services.
The case was about an affair and marriage of 30 years old teacher Evelyn Chua
in Tay Tung High School in Bacolod City to her 16 years old student. The
petitioner teacher was suspended without pay and was terminated of his
employment “for Abusive and Unethical Conduct Unbecoming of a Dignified
School Teacher” which was filed by a public respondent as a clearance for
termination.
ISSUE:
RULING:
“Private respondent [the school] utterly failed to show that petitioner [30-year
old lady teacher] took advantage of her position to court her student [16-year
old]. If the two eventually fell in love, despite the disparity in their ages
and academic levels, this only lends substance to the truism that the
heart has reasons of its own which reason does not know. But,
definitely, yielding to this gentle and universal emotion is not to be so casually
equated with immorality. The deviation of the circumstances of their marriage
from the usual societal pattern cannot be considered as a defiance of
contemporary social mores.”
YNARES-SANTIAGO, J.:
This petition for review on certiorari under Rule 45 of the Rules of Court seeks
to annul and set aside the Decision of the Court of Appeals in CA-G.R. SP No.
80975 dated January 17, 2005[1] and its Resolution dated April 7,
2005[2] holding the petitioner Premiere Development Bank liable for illegal
suspension and illegal dismissal, ordering it to reinstate respondent Elsie
Escudero Mantal to her former position and to pay her full backwages from date
of suspension and dismissal until actual reinstatement, half month salary and
half month 13th month pay, as well as attorneys fees.
On the same day, respondent was summoned to the head office and was
required to write down what she knew about the subject bank
guarantee. Respondent also received a memorandum placing her under
preventive suspension effective immediately for a period of 30 days. During the
investigation, Detalla admitted issuing the falsified bank guarantee.
The National Labor Relations Commission (NLRC) reversed the labor arbiters
decision, and dismissed the complaint for lack of merit.[11] The motion for
reconsideration having been denied,[12] respondent appealed to the Court of
Appeals which found that petitioner failed to prove that respondent conspired
with Detalla in issuing the falsified bank guarantee;[13] that the alleged
infraction of respondent was not related to her functions as encoder and
accounts clerk, hence her dismissal could not be based on loss of trust and
confidence, the breach of which must be related to the performance of the
employees functions;[14] that respondent was not negligent in the performance
of her functions inasmuch as she verified from the computer before answering
the queries by Crisostomo;[15]that the alleged negligence was not gross or
habitual;[16] that respondent merely conveyed the instructions of her immediate
superior which appeared to be lawful and regular.[17]
SO ORDERED.[18]
The sole issue in the instant petition is whether respondent was validly
suspended and dismissed from her position as accounting clerk.
Petitioner contends that respondent was validly dismissed because she was
grossly negligent in the performance of her functions which caused petitioner to
lose trust and confidence in her. It argues that respondent is guilty of
misconduct for her failure to report the irregularity to the management.
In the case at bar, respondent cannot be held liable for serious misconduct or
gross negligence. No independent evidence was presented to prove her willful
conspiracy with Detalla. Petitioner even admitted that there is no direct
evidence that respondent benefited from the falsified bank guarantee. Liability
for the incident lay solely with Detalla, who patently breached the trust and
confidence of petitioner. Respondent merely followed the orders of the bank
manager which appeared to be regular. Furthermore, the nature of respondents
job does not include processing of bank loans and guarantees. Her work as
accounting clerk refers only to the opening of deposits and processing of
withdrawals. The alleged infraction was not within the scope of her job
function. Petitioner did not contest this fact.
Respondent also verified from the bank computer whether GIA Fuel and
Lubricant Dealer had an account with petitioner, as can be gleaned from her
statements in the Question and Answer[22] conducted by the bank, to wit:
x x x x. (Emphasis supplied)
Respondent did what was expected of her as an employee of the bank. Before
answering the telephone inquiry, respondent verified the existence of the GIA
Fuel and Lubricant Dealer account through the bank computer. If ever she was
negligent, it would only constitute a single or isolated act which is not a just
cause for the dismissal of the respondent from her employment.
ROMERO, J.:
xxxxxxxxx
xxxxxxxxx
PREMISES CONSIDERED, the Decision of May 13, 1996 is hereby VACATED and
a new one is adjudged DISMISSING instant complaint for lack of merit.
We are not unmindful of the foregoing doctrine, but after a careful scrutiny
of the above cases, we are not convinced of its application to the instant
petition.
First, in all of the cases cited, it should be borne in mind that the
employees involved were all rank-and-file or ordinary workers. However, as
earlier pointed out, petitioner was not included in such category but was the
account manager of private respondent, clearly, a managerial position. Metro
Drug Corporation v. NLRC,[26] states:
FRANCISCO, J.:
The Labor Arbiter ruled that petitioner is the private respondent's employer
because Skillpower, Inc., and Lippercon Services, Inc., were mere "labor-only"
contractors falling under Section 9, Rule VIII, Book III of the Omnibus Rules
Implementing the Labor Code. The installation of labor saving devices was also
ruled a valid ground for the termination of private respondent's employment,
but the Labor Arbiter emphasized that this did not exculpate petitioner from the
charge of illegal dismissal for its failure to observe the due process of law in
In full agreement with the Labor Arbiter's finding, public respondent NLRC
categorically stated the following, which we quote with approval:
We note that petitioner also exercises the power to discipline and suspend
private respondent — a factor that further militates against its claim. In fact,
the latter was meted a suspension by Mr. Antonio Cinco, a supervisor of SMC.8
Petitioner next asseverates that private respondent was not illegally dismissed
since the termination of her employment was due to a cause expressly
authorized by the Labor Code and the absence of notice therefor did not make
it so. Petitioner cites Wenphil Corp. v. NLRC, et al. (170 SCRA 69 [1989]) in
support of its claim that private respondent is only entitled to an indemnity of
P1,000.00, but not backwages or separation pay. The NLRC, on the other hand,
insists that termination without the benefit of any investigation or notice makes
an employee's dismissal from service illegal.
The law authorizes an employer, like the herein petitioner, to terminate the
employment of any employee due to the installation of labor saving devices.
The failure of petitioner to serve the written notice to private respondent and to
the DOLE, however, does not ipso facto make private respondent's termination
from service illegal so as to entitle her to reinstatement and payment of
backwages.12 If at all, her termination from service is merely defective because
it was not tainted with bad faith or arbitrariness and was due to a valid cause.
The well settled rule is that the employer shall be sanctioned for non-
compliance with the requirements of, or for failure to observe due process in
terminating from service its employee. In Wenphil Corp. v. NLRC,13 we
sanctioned the employer for this failure by ordering it to indemnify the
employee the amount of P1,000.00. Similarly, we imposed the same amount as
indemnification in Rubberworld (Phils.), Inc. v. NLRC,14 and, in Aurelio
v. NLRC. The
15
indemnity was raised to P10,000.00 in Reta
v. NLRC16 and Alhambra Industries, Inc. v. NLRC.17 Subsequently, the sum of
P5,000.00 was awarded to an employee in Worldwide Papermills,
Inc. v. NLRC,18 and P2,000.00 in Sebuguero, et al. v. NLRC, et al.19 Recently,
the sum of P5,000.00 was again imposed as indemnity against the
employer.20 We see no valid and cogent reason why petitioner should not be
likewise sanctioned for its failure to serve the mandatory written notice. Under
the attendant facts, we find the amount of P5,000.00, to be just and
reasonable.
and Article 283 of the Labor Code which explicitly provides that an employee
removed from service due to the installation of labor saving devices is entitled
to separation pay.
SO ORDERED.
- versus -
PEREZ, J.:
SO ORDERED.[3]
The Facts
Aggrieved, Leynes lost no time in filing against NHPI and its above-named
officers the 22 February 2002 complaint for illegal dismissal, unpaid salaries,
benefits, damages and attorneys fees docketed before the arbitral level of the
National Labor Relations Commission (NLRC) as NLRC-NCR South Sector Case
No. 30-02-01119-02.[14] Against Leynes claim that her being relieved from her
position without just cause and replacement by one Carlos Jose amounted to an
illegal dismissal from employment,[15] NHPI and its officers asserted that the
managements exercise of the prerogative to put an employee on floating status
for a period not exceeding six months was justified in view of her threatened
resignation from her position and BGCCs request for her replacement.[16] During
the pendency of the case, however, Reyes eventually served the Department of
Labor and Employment (DOLE)[17] and Leynes with the 8 August 2002 notice
terminating her services effective 22 August 2002, on the ground of
redundancy or lack of a posting commensurate to her position at the
Project.[18] Leynes was offered by NHPI the sum of P28,188.16 representing her
unpaid wages, proportionate 13th month pay, tax refund and service incentive
leave pay (SILP).
SO ORDERED.[20]
On appeal, the foregoing decision was reversed and set aside in the 30
September 2003 decision rendered by the NLRC in NLRC NCR CA No.
035229. In ordering the dismissal of the complaint for lack of merit, the NLRC
ruled that NHPIs placement of Leynes on floating status was necessitated by
the clients contractually guaranteed right to request for her relief.[21] With
Leynes elevation of the case to the CA on a Rule 65 petition
for certiorari,[22] the NLRCs decision was, however, reversed and set aside in
the herein assailed 23 November 2006 decision, upon the following findings and
conclusions: (a) absent showing that there was a bona fide suspension of
NHPIs business operations, Leynes relief from her position even though
requested by the client was tantamount to a constructive dismissal; (b) the bad
faith of NHPI and its officers is evident from the hiring of Engr. Jose as Leynes
replacement on 13 February 2002 or prior to her being relieved from her
position on 22 February 2002; and, (c) the failure of NHPI and its officers to
prove a just cause for Leynes termination, the redundancy of her services and
their compliance with the requirements of due process renders them liable for
illegal dismissal.[23]
The motion for reconsideration of the foregoing decision filed by NHPI and its
officers[24] was denied for lack of merit in the CAs 8 May 2007 resolution,
hence, this petition.[25]
The Issues
Petitioners NHPI and Kawata urge the grant of their petition on the following
grounds, to wit:
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:
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.
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.
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
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]
SO ORDERED.
PEREZ, J.:
FACTS:
Aggrieved, Leynes lost no time in filing against NHPI and its above-named
The LA found that NHPI act of putting Leynes on floating status was equivalent
to termination from employment without just cause and compliance with the
twin requirements of notice and hearing.
On appeal, the NLRC reversed the LA decision. Leynes elevated the case to the
CA on a Rule 65 petition for certiorari and the CA reversed the NLRC decision.
ISSUE:
HELD:
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 quo
clearly indicates that petitioners were not in bad faith when they placed the
former under floating status. Disgruntled by NHPI countermanding of her
decision to bar Engr. Cantuba from the Project, Leynes twice signified her
intention to resign from her position. In her application letter for an immediate
emergency leave, Leynes also distinctly expressed her dissatisfaction over NHPI
resolution of her dispute with Engr. Cantuba and announced her plan of
coordinating with her lawyer regarding her resignation letter.
In view of the sensitive nature of Leynes position and the critical stage of the
Project 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
115 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
Project. Upon BGCC recommendation, NHPI consequently hired Engr. Jose on
13 February 2002 as Leynes replacement. Far from being the indication of bad
faith the CA construed the same to be, these factual antecedents suggest that
NHPI immediate hiring of Engr. Jose as the new Property Manager for the
Project was brought about by Leynesown 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, Leynes evidently had only herself to blame for
precipitately setting in motion the events which led to NHPI hiring of her own
replacement.
The record, moreover, shows that NHPI simply placed her on floating status
"until such time that another project could be secured" for her. 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, 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.
Viewed in the light of the foregoing factual antecedents, the Court finds that
the CA reversibly erred in holding petitioners liable for constructively dismissing
Leynes from her employment. There is said to be constructive dismissal when
With no other client aside from BGCC for the building management side of its
business, the Court finds that NHPI was acting well within its prerogatives when
it eventually terminated Leynesservices 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. 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.It has been held that the
exercise of business judgment to characterize an employee 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.
GRANTED
GRIÑO-AQUINO, J.:
We regret to inform you that effective July 16, 1984, you are
hereby permanently laid-off in view of non-availability of imported
raw materials brought about by the current economic conditions in
the country.
Three years later, the petitioner announced in the newspapers that it was hiring
additional personnel because its production and sales had increased. Cabrera
applied for reemployment on May 8, 1987, but he was turned down.
On February 29, 1988, the Labor Arbiter dismissed his complaint on the ground
that the "alleged violation of the assurance (that he would be re-
hired)** cannot be a legal basis for the filing therein of a complaint."
In its petition for certiorari, the petitioner alleges that the NLRC gravely abused
its discretion in allowing Cabrera's appeal although it was not under oath, as
required under Section 13, Rule VII-A of the Implementing Rules of the
Commission. No notice of appeal was sent to the petitioner and some exhibits
were presented for the first time on appeal.
It will be seen that the petition is based on purely technical grounds. The
petitioner did not rebut the finding of the NLRC that the dismissal of Cabrera
was "utterly unjustified," hence, illegal, for the petitioner failed to present
"even a shred of evidence" to prove that it suffered economic or business
reverses justifying its claim that it needed to retrench. The ground for the
dismissal of Cabrera was unproven and non-existent.
Regarding the grounds of the petition, the public respondent pointed out in its
comment that the lack of verification or oath in the appeal (the employee
prosecuted his appeal by himself) was not fatal (Del Navarro & Sons Logging
Enterprises, Inc. vs. NLRC, 136 SCRA 669). Indeed, we have ruled in the past
that a pleading which is required by the Rules of Court to be verified, may be
given due course even without a verification if the circumstances warrant the
suspension of the rules in the interest of justice (Oshita vs. Republic, 19 SCRA
700; Villasanta vs. Bautista, 36 SCRA 160; Quimpo vs. De la Victoria, 46 SCRA
139).
Neither was Cabrera's failure to furnish the petitioner with a copy of his appeal
a sufficient cause for dismissing it. He could simply have been ordered to
furnish the appellee with a copy of his appeal.
SO ORDERED.
- versus -
YNARES-SANTIAGO, J.:
This petition for review seeks to reverse the decision[1] of the Court of Appeals
dated January 23, 2003, in CA-G.R. SP No. 63017, modifying the decision of
National Labor Relations Commission (NLRC) in NLRC-NCR Case No. 023442-
00.
SO ORDERED.[4]
On appeal, the NLRC reversed the Labor Arbiter because it found that the
petitioners had abandoned their work, and were not entitled to backwages and
separation pay. The other money claims awarded by the Labor Arbiter were
also denied for lack of evidence.[5]
Upon denial of their motion for reconsideration, petitioners filed a petition for
certiorari with the Court of Appeals.
The Court of Appeals in turn ruled that the dismissal of the petitioners was not
illegal because they had abandoned their employment but ordered the payment
of money claims. The dispositive portion of the decision reads:
WHEREFORE, the decision of the National Labor Relations
Commission is REVERSED only insofar as it dismissed petitioners
money claims. Private respondents are ordered to pay petitioners
holiday pay for four (4) regular holidays in 1996, 1997, and 1998,
as well as their service incentive leave pay for said years, and to
pay the balance of petitioner Virgilio Agabons 13th month pay for
1998 in the amount of P2,150.00.
SO ORDERED.[6]
Hence, this petition for review on the sole issue of whether petitioners were
illegally dismissed.[7]
Private respondent, on the other hand, maintained that petitioners were not
dismissed but had abandoned their work.[9] In fact, private respondent sent two
letters to the last known addresses of the petitioners advising them to report
for work. Private respondents manager even talked to petitioner Virgilio Agabon
by telephone sometime in June 1999 to tell him about the new assignment at
Pacific Plaza Towers involving 40,000 square meters of cornice installation
work. However, petitioners did not report for work because they had
subcontracted to perform installation work for another company. Petitioners
also demanded for an increase in their wage to P280.00 per day. When this was
not granted, petitioners stopped reporting for work and filed the illegal
dismissal case.[10]
It is well-settled that findings of fact of quasi-judicial agencies like the NLRC are
accorded not only respect but even finality if the findings are supported by
substantial evidence. This is especially so when such findings were affirmed by
the Court of Appeals.[11] However, if the factual findings of the NLRC and the
Labor Arbiter are conflicting, as in this case, the reviewing court may delve into
the records and examine for itself the questioned findings.[12]
After establishing that the terminations were for a just and valid cause, we now
determine if the procedures for dismissal were observed.
From the foregoing rules four possible situations may be derived: (1) the
dismissal is for a just cause under Article 282 of the Labor Code, for an
authorized cause under Article 283, or for health reasons under Article 284, and
126 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
due process was observed; (2) the dismissal is without just or authorized cause
but due process was observed; (3) the dismissal is without just or authorized
cause and there was no due process; and (4) the dismissal is for just or
authorized cause but due process was not observed.
In the first situation, the dismissal is undoubtedly valid and the employer will
not suffer any liability.
In the second and third situations where the dismissals are illegal, Article
279 mandates that the employee is entitled to reinstatement without loss of
seniority rights and other privileges and full backwages, inclusive of allowances,
and other benefits or their monetary equivalent computed from the time the
compensation was not paid up to the time of actual reinstatement.
In the fourth situation, the dismissal should be upheld. While the procedural
infirmity cannot be cured, it should not invalidate the dismissal. However, the
employer should be held liable for non-compliance with the procedural
requirements of due process.
The present case squarely falls under the fourth situation. The dismissal should
be upheld because it was established that the petitioners abandoned their jobs
to work for another company. Private respondent, however, did not follow the
notice requirements and instead argued that sending notices to the last known
addresses would have been useless because they did not reside there anymore.
Unfortunately for the private respondent, this is not a valid excuse because the
law mandates the twin notice requirements to the employees last known
address.[21] Thus, it should be held liable for non-compliance with the
procedural requirements of due process.
Prior to 1989, the rule was that a dismissal or termination is illegal if the
employee was not given any notice. In the 1989 case of Wenphil Corp. v.
National Labor Relations Commission,[23] we reversed this long-standing rule
and held that the dismissed employee, although not given any notice and
hearing, was not entitled to reinstatement and backwages because the
dismissal was for grave misconduct and insubordination, a just ground for
termination under Article 282. The employee had a violent temper and caused
trouble during office hours, defying superiors who tried to pacify him. We
127 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
concluded that reinstating the employee and awarding backwages may
encourage him to do even worse and will render a mockery of the rules of
discipline that employees are required to observe.[24] We further held that:
The rule thus evolved: where the employer had a valid reason to dismiss
an employee but did not follow the due process requirement, the dismissal may
be upheld but the employer will be penalized to pay an indemnity to the
employee. This became known as the Wenphil or Belated Due Process Rule.
On January 27, 2000, in Serrano, the rule on the extent of the sanction
was changed. We held that the violation by the employer of the notice
requirement in termination for just or authorized causes was not a denial of due
process that will nullify the termination. However, the dismissal is ineffectual
and the employer must pay full backwages from the time of termination until it
is judicially declared that the dismissal was for a just or authorized cause.
We believe, however, that the ruling in Serrano did not consider the full
meaning of Article 279 of the Labor Code which states:
This means that the termination is illegal only if it is not for any of the
justified or authorized causes provided by law. Payment of backwages and
other benefits, including reinstatement, is justified only if the employee was
unjustly dismissed.
The fact that the Serrano ruling can cause unfairness and injustice which
elicited strong dissent has prompted us to revisit the doctrine.
To be sure, the Due Process Clause in Article III, Section 1 of the Constitution
embodies a system of rights based on moral principles so deeply imbedded in
the traditions and feelings of our people as to be deemed fundamental to a
civilized society as conceived by our entire history. Due process is that which
comports with the deepest notions of what is fair and right and just.[26] It is a
Due process under the Labor Code, like Constitutional due process, has
two aspects: substantive, i.e., the valid and authorized causes of employment
termination under the Labor Code; and procedural, i.e., the manner of
dismissal. Procedural due process requirements for dismissal are found in the
Implementing Rules of P.D. 442, as amended, otherwise known as the Labor
Code of the Philippines in Book VI, Rule I, Sec. 2, as amended by Department
Order Nos. 9 and 10.[27] Breaches of these due process requirements violate the
Labor Code. Therefore statutory due process should be differentiated from
failure to comply with constitutional due process.
Mr. Justice Jose C. Vitug, in his separate opinion in MGG Marine Services,
Inc. v. National Labor Relations Commission,[30] which opinion he reiterated
in Serrano, stated:
130 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
C. Where there is just cause for dismissal but due process
has not been properly observed by an employer, it would not be
right to order either the reinstatement of the dismissed employee
or the payment of backwages to him. In failing, however, to
comply with the procedure prescribed by law in terminating the
services of the employee, the employer must be deemed to have
opted or, in any case, should be made liable, for the payment of
separation pay. It might be pointed out that the notice to be given
and the hearing to be conducted generally constitute the two-part
due process requirement of law to be accorded to the employee by
the employer. Nevertheless, peculiar circumstances might obtain
in certain situations where to undertake the above steps would be
no more than a useless formality and where, accordingly, it would
not be imprudent to apply the res ipsa loquitur rule and award, in
lieu of separation pay, nominal damages to the employee. x x
x.[31]
This would encourage frivolous suits, where even the most notorious violators
of company policy are rewarded by invoking due process. This also creates
absurd situations where there is a just or authorized cause for dismissal but a
procedural infirmity invalidates the termination. Let us take for example a case
It must be stressed that in the present case, the petitioners committed a grave
offense, i.e., abandonment, which, if the requirements of due process were
complied with, would undoubtedly result in a valid dismissal.
An employee who is clearly guilty of conduct violative of Article 282 should not
be protected by the Social Justice Clause of the Constitution. Social justice, as
the term suggests, should be used only to correct an injustice. As the eminent
Justice Jose P. Laurel observed, social justice must be founded on
the recognition of the necessity of interdependence among diverse
units of a society and of the protection that should be equally and
evenly extended to all groups as a combined force in our social and
economic life, consistent with the fundamental and paramount objective of
the state of promoting the health, comfort, and quiet of all persons, and of
bringing about the greatest good to the greatest number.[34]
This is not to say that the Court was wrong when it ruled the way it did
in Wenphil, Serrano and related cases. Social justice is not based on
Justice in every case should only be for the deserving party. It should not be
presumed that every case of illegal dismissal would automatically be decided in
favor of labor, as management has rights that should be fully respected and
enforced by this Court. As interdependent and indispensable partners in nation-
building, labor and management need each other to foster productivity and
economic growth; hence, the need to weigh and balance the rights and welfare
of both the employee and employer.
Where the dismissal is for a just cause, as in the instant case, the lack
of statutory due process should not nullify the dismissal, or render it illegal,
or ineffectual. However, the employer should indemnify the employee for the
violation of his statutory rights, as ruled in Reta v. National Labor Relations
Commission.[36] The indemnity to be imposed should be stiffer to discourage
the abhorrent practice of dismiss now, pay later, which we sought to deter in
the Serrano ruling. The sanction should be in the nature of indemnification or
penalty and should depend on the facts of each case, taking into special
consideration the gravity of the due process violation of the employer.
Under the Civil Code, nominal damages is adjudicated in order that a right of
the plaintiff, which has been violated or invaded by the defendant, may be
The violation of the petitioners right to statutory due process by the private
respondent warrants the payment of indemnity in the form of nominal
damages. The amount of such damages is addressed to the sound discretion of
the court, taking into account the relevant circumstances.[40] Considering the
prevailing circumstances in the case at bar, we deem it proper to fix it
at P30,000.00. We believe this form of damages would serve to deter
employers from future violations of the statutory due process rights of
employees. At the very least, it provides a vindication or recognition of this
fundamental right granted to the latter under the Labor Code and its
Implementing Rules.
Private respondent claims that the Court of Appeals erred in holding that it
failed to pay petitioners holiday pay, service incentive leave pay and 13th month
pay.
In the case at bar, if private respondent indeed paid petitioners holiday pay and
service incentive leave pay, it could have easily presented documentary proofs
of such monetary benefits to disprove the claims of the petitioners. But it did
not, except with respect to the 13th month pay wherein it presented cash
vouchers showing payments of the benefit in the years disputed.[42] Allegations
by private respondent that it does not operate during holidays and that it allows
its employees 10 days leave with pay, other than being self-serving, do not
constitute proof of payment. Consequently, it failed to discharge the onus
probandithereby making it liable for such claims to the petitioners.
Anent the deduction of SSS loan and the value of the shoes from petitioner
Virgilio Agabons 13th month pay, we find the same to be unauthorized. The
evident intention of Presidential Decree No. 851 is to grant an additional
income in the form of the 13th month pay to employees not already receiving
the same[43] so as to further protect the level of real wages from the ravages of
world-wide inflation.[44] Clearly, as additional income, the 13th month pay is
included in the definition of wage under Article 97(f) of the Labor Code, to wit:
from which an employer is prohibited under Article 113[45] of the same Code
from making any deductions without the employees knowledge and consent. In
the instant case, private respondent failed to show that the deduction of the
SSS loan and the value of the shoes from petitioner Virgilio Agabons 13th month
pay was authorized by the latter. The lack of authority to deduct is further
bolstered by the fact that petitioner Virgilio Agabon included the same as one of
his money claims against private respondent.
FACTS
Virgilio and Jenny Agabon worked for respondent Riviera HomeImprovements, Inc. as
gypsum and cornice installers from January 1992 untilFeb 1999. Their employment
was terminated when they were dismissed forallegedly abandoning their work.
Petitioners Agabon then filed a case of illegal dismissal. /// The LA ruled in favor of
the spouses and ordered Rivierato pay them their money claims. The NLRC reversed
the LA, finding that theAgabons were indeed guilty of abandonment. The CA modified
the LA byruling that there was abandonment but ordering Riviera to pay the Agabons’
money claims.///The arguments of both parties are as follows:
The Agabons claim, among others that Riviera violated the requirements
of notice and hearing when the latter did not send written letters of termination to their
addresses. Riviera admitted to not sending the Agabons letters of termination to
theirlast known addresses because the same would be futile, as the Agabons donot
reside there anymore. However, it also claims that the Agabonsabandoned their work.
More than once, they subcontracted installationworks for other companies. They
already were warned of termination if thesame act was repeated, still, they disregarded
the warning.
ISSUES
1.No. There was just cause for their dismissal, i.e., abandonment. Art. 282specifies the
grounds for just dismissal, to wit:
a.Serious misconduct or willful disobedience of the lawful orders of the employer or his
duly authorized representative in connection
137 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
with the employee’s work
c. Fraud or willful breach of the trust reposed by the employer or hisduly authorized
representative to the employeed.
Any other causes analogous to the foregoing.To establish abandonment, two elements
must be present:
Here, the Agabons were frequently absent from work for havingperformed installation
work for another company, despite prior warninggiven by Riviera. This clearly
establishes an intention to sever the e-erelationship between them, and which
constitutes abandonment.
2.Yes. While the employer has the right to expect good performance,diligence, good
conduct and loyalty from its employees, it also has theduty to provide just
compensation to his employees and to observe theprocedural requirements of
notice and hearing in the termination of his employees.Procedure of
termination (Omnibus Rules Implementing the LaborCode):a.
A written notice to the employee specifying the grounds fortermination and giving the
employee reasonable opportunity tobe heardb.
A hearing where the employee is given the opportunity torespond to the charges
against him and present evidence or rebutthe evidence presented against him (if he so
requests)c.
. However, they differ in that underthe Labor Code, the first one refers to the valid and
authorized causes of employment termination, while the second one refers to the
manner of dismissal. A denial of statutory due process is not the same as a denial
of Constitutional due process for reasons enunciated in Serrano v. NLRC.
4.The dismissal is valid, but Riviera should pay nominal damages to theAgabons in
vindication of the latter for violating their right to notice andhearing. The penalty is in
the nature of a penalty or indemnification, theamount dependent on the facts of each
case, including the nature of gravity of offense of the employer.In this case, the
Serrano doctrine was re-examined.First, in the Serrano case, the dismissal
was upheld, but it was held to beineffectual (without legal effect). Hence, Serrano was
still entitled to thepayment of his backwages from the time of dismissal until
thepromulgation of the court of the existence of an authorized cause.Further, he was
entitled to his separation pay as mandated under Art.283. The ruling is unfair to
employers and has the danger of thefollowing consequences:
c.It could discourage investments that would generate employmentin the economy
ADDITIONAL NOTES:1.
GARCIA, J.:
Assailed and sought to be set aside in this appeal by way of a petition for
review on certiorari under rule 45 of the Rules of Court are the following
issuances of the Court of Appeals in CA-G.R. SP. No. 59847, to wit:
1. Decision dated 16 November 2001,[1] reversing and setting aside
an earlier decision of the National Labor Relations Commission
(NLRC); and
2. Resolution dated 8 January 2002,[2] denying petitioners motion
for reconsideration.
The material facts may be briefly stated, as follows:
Respondents Darwin Pacot, Robert Parohinog, David Bisnar, Marlon
Domingo, Rhoel Lescano and Jonathan Cagabcab were earlier hired by
petitioner JAKA Foods Processing Corporation (JAKA, for short) until the latter
terminated their employment on August 29, 1997 because the corporation was
in dire financial straits. It is not disputed, however, that the termination was
effected without JAKA complying with the requirement under Article 283 of the
Labor Code regarding the service of a written notice upon the employees and
the Department of Labor and Employment at least one (1) month before the
intended date of termination.
In time, respondents separately filed with the regional Arbitration Branch of
the National Labor Relations Commission (NLRC) complaints for illegal
dismissal, underpayment of wages and nonpayment of service incentive leave
and 13th month pay against JAKA and its HRD Manager, Rosana Castelo.
After due proceedings, the Labor Arbiter rendered a decision[3] declaring the
termination illegal and ordering JAKA and its HRD Manager to reinstate
respondents with full backwages, and separation pay if reinstatement is not
possible. More specifically the decision dispositively reads:
SO ORDERED.
SO ORDERED.
Their motion for reconsideration having been denied by the NLRC in its
resolution of April 28, 2000,[6] respondents went to the Court of Appeals via a
petition for certiorari, thereat docketed as CA-G.R. SP No. 59847.
As stated at the outset hereof, the Court of Appeals, in a decision dated
November 16, 2000, applying the doctrine laid down by this Court in Serrano
vs. NLRC,[7]reversed and set aside the NLRCs decision of January 28, 2000,
thus:
WHEREFORE, the decision dated January 28, 2000 of the National Labor
Relations Commission is REVERSED and SET ASIDE and another one entered
SO ORDERED.
This time, JAKA moved for a reconsideration but its motion was denied by
the appellate court in its resolution of January 8, 2002.
Hence, JAKAs present recourse, submitting, for our consideration, the
following issues:
I. WHETHER OR NOT THE COURT OF APPEALS CORRECTLY AWARDED
FULL BACKWAGES TO RESPONDENTS.
II. WHETHER OR NOT THE ASSAILED DECISION CORRECTLY AWARDED
SEPARATION PAY TO RESPONDENTS.
As we see it, there is only one question that requires resolution, i.e. what
are the legal implications of a situation where an employee is dismissed for
cause but such dismissal was effected without the employers compliance with
the notice requirement under the Labor Code.
This, certainly, is not a case of first impression. In the very recent case
of Agabon vs. NLRC,[8] we had the opportunity to resolve a similar question.
Therein, we found that the employees committed a grave
offense, i.e., abandonment, which is a form of a neglect of duty which, in turn,
is one of the just causes enumerated under Article 282 of the Labor Code. In
said case, we upheld the validity of the dismissal despite non-compliance with
the notice requirement of the Labor Code. However, we required the employer
to pay the dismissed employees the amount of P30,000.00, representing
nominal damages for non-compliance with statutory due process, thus:
Where the dismissal is for a just cause, as in the instant case, the lack of
statutory due process should not nullify the dismissal, or render it illegal, or
ineffectual. However, the employer should indemnify the employee for the
violation of his statutory rights, as ruled in Reta vs. National Labor Relations
Commission. The indemnity to be imposed should be stiffer to discourage the
abhorrent practice of dismiss now, pay later, which we sought to deter in
the Serrano ruling. The sanction should be in the nature of indemnification or
The difference between Agabon and the instant case is that in the former,
the dismissal was based on a just cause under Article 282 of the Labor Code
while in the present case, respondents were dismissed due to retrenchment,
which is one of the authorized causes under Article 283 of the same Code.
At this point, we note that there are divergent implications of a dismissal
for just cause under Article 282, on one hand, and a dismissal for authorized
cause under Article 283, on the other.
A dismissal for just cause under Article 282 implies that the employee
concerned has committed, or is guilty of, some violation against the
employer, i.e. the employee has committed some serious misconduct, is guilty
of some fraud against the employer, or, as in Agabon, he has neglected his
duties. Thus, it can be said that the employee himself initiated the dismissal
process.
On another breath, a dismissal for an authorized cause under Article 283
does not necessarily imply delinquency or culpability on the part of the
employee. Instead, the dismissal process is initiated by the employers exercise
of his management prerogative, i.e. when the employer opts to install labor
saving devices, when he decides to cease business operations or when, as in
this case, he undertakes to implement a retrenchment program.
The clear-cut distinction between a dismissal for just cause under Article
282 and a dismissal for authorized cause under Article 283 is further reinforced
Noteworthy it is, moreover, to state that herein respondents did not assail
the foregoing finding of the NLRC which, incidentally, was also affirmed by the
Court of Appeals.
It is, therefore, established that there was ground for respondents
dismissal, i.e., retrenchment, which is one of the authorized causes
enumerated under Article 283 of the Labor Code. Likewise, it is established that
JAKA failed to comply with the notice requirement under the same Article.
Considering the factual circumstances in the instant case and the above
ratiocination, we, therefore, deem it proper to fix the indemnity at P50,000.00.
We likewise find the Court of Appeals to have been in error when it ordered
JAKA to pay respondents separation pay equivalent to one (1) month salary for
every year of service. This is because in Reahs Corporation vs. NLRC,[11] we
made the following declaration:
FACTS:
Respondents were hired by JAKA until their termination on August 29, 1997
because the Corporation was “in dire financial straits”. It was not disputed that
they were terminated without complying with the requirement under Art. 283
of the Labor Code regarding the service of notice upon the employees and
DOLE at least one month before the intended date of termination.
ISSUE:
RULING:
The dismissal of the respondents was for an authorized cause under Article
283. A dismissal for authorized cause does not necessarily imply delinquency or
culpability on the part of the employee. Instead, the dismissal process is
initiated by the employer’s exercise of his management prerogative, i.e. when
the employer opts to install labor-saving devices, when he decides to cease
business operations or when… he undertakes to implement a retrenchment
program.
1) if the dismissal is based on a just cause but the employer failed to comply
with the notice requirement, the sanction to be imposed upon him should be
tempered because the dismissal was initiate by an act imputable to the
employee.
The Facts
SO ORDERED.[7]
Affirming the NLRC, the CA held that there was just cause for respondents
dismissal. It ruled that respondents act in declaring sold tickets as returned
tickets x x x constituted fraud or acts of dishonesty justifying his dismissal.[9]
Also, the appellate court sustained the finding that petitioners failed to
comply with the required procedural due process prior to respondents
termination. However, following the doctrine in Serrano v. NLRC,[10] it modified
the award of PhP 10,000 as indemnification by awarding full backwages from
the time respondents employment was terminated until finality of the decision.
Due process under the Labor Code involves two aspects: first,
substantivethe valid and authorized causes of termination of employment under
the Labor Code; and second, proceduralthe manner of dismissal.[12] In the
present case, the CA affirmed the findings of the labor arbiter and the NLRC
that the termination of employment of respondent was based on a just cause.
This ruling is not at issue in this case. The question to be determined is
whether the procedural requirements were complied with.
(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 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.
As stated earlier, after a finding that petitioners failed to comply with the
due process requirements, the CA awarded full backwages in favor of
154 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
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]
xxxx
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.
WHEREFORE, the petition is PARTLY GRANTED and the September 16, 2004
Decision of the CA is MODIFIED by deleting the award of backwages and 13th-
month pay. Instead, petitioner KKTI is ordered to indemnify respondent the
amount of thirty thousand pesos (PhP 30,000) as nominal damages for failure
to comply with the due process requirements in terminating the employment of
respondent. No costs. SO ORDERED.
HELD: NO. There was failure to observe the requirements of due process
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, procedural––the manner of dismissal.
Section 2(d) of Rule I of Book VI of the Omnibus Rules Implementing
the Labor Code provides:
SEC. 2. Standards of due process; requirements of notice.––In all cases
of termination of employment, the following standards of due process shall be
substantially observed:
1. For termination of employment based on just causes as defined in Article 282
of the Code:
(a) A written notice served on the employee specifying the ground or grounds
for termination, and giving said employee reasonable opportunity within which
to explain his side.
(b) A hearing or conference during which the employee concerned, with the
assistance of counsel if he so desires is given opportunity to respond to the
charge, present his evidence, or rebut the evidence presented against him.
(c) A written notice of termination served on the employee, indicating that
upon due consideration of all the circumstances, grounds have been established
to justify his termination.
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 is being charged
against the employees.
158 |ANNA L. ILAGAN-MALIPOL, AB,MD LABOR LAW II
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.
Respondent was not issued a written notice charging him of committing an
infraction. A verbal appraisal of the charges against an employee does not
comply with the first notice requirement.
The court observed 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.
No hearing was conducted. Regardless of respondent’s 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, 2001
Conductor’s Trip Report. He was unaware that a dismissal proceeding was
already being effected. Thus, he was surprised to receive the November 26,
2001 termination letter indicating as grounds, not only his October 28, 2001
infraction, but also his previous infractions.