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1. DE GRACIA
National Service Corporation (NASECO) vs. NLRC
G.R. No. L-69870 Nove!er "9# $988
%AC&S' Eugenia C. Credo was an employee of the NASECO a
domesti! !orporation whi!h pro"ides se!urity guards to #N$ and its
agen!ies. She was first employed with NASECO as a lady guard
through the years she was promoted to Cler% &ypist then #ersonnel
Cler% until she 'e!ame Chief of #roperty and Re!ords.
Credo was administrati"ely !harged 'y Sisinio S. (loren )anager of
*inan!e and Spe!ial #ro+e!t and E"aluation Department of NASECO
stemming from her non,!omplian!e with (loren-s memorandum
regarding !ertain entry pro!edures in the !ompany-s Statement of
$illings Ad+ustment. Said !harges alleged that Credo did not !omply
with (loren-s instru!tions to pla!e some !orre!tions/additional remar%sin the Statement of $illings Ad+ustment0 and when Credo2 was !alled
'y (loren to his offi!e to e3plain further the said instru!tions Credo2
showed resentment and 'eha"ed in a s!andalous manner 'y shouting
and uttering remar%s of disrespe!t in the presen!e of her !o,
employees.
Credo was !alled to meet Arturo (. #ere4 then A!ting General
)anager of NASECO to e3plain her side in !onne!tion with the
administrati"e !harges filed against her. After said meeting on the
same date Credo was pla!ed on *or!ed (ea"e status for 15 days.
$efore the e3piration of said 15,day lea"e Credo filed a !omplaint with
the Ar'itration $ran!h National Capital Region )inistry of (a'or and
Employment )anila against NASECO for pla!ing her on for!ed lea"e
without due pro!ess.
(i%ewise while Credo was on for!ed lea"e NASECO-s Committee on
#ersonnel Affairs deli'erated and e"aluated a num'er of past a!ts of
mis!ondu!t or infra!tions attri'uted to her. As a result of this
deli'eration said !ommittee resol"ed that Credo !ommitted the
following offenses in the Code of Dis!ipline "i46 dis!ourteous a!t to
!ustomer offi!er and employee of !lient !ompany or offi!er of the
Corporation E3hi'it mar%ed dis!ourtesy in the !ourse of offi!ial duties
or use of profane or insulting language to any superior offi!er *ailure to
!omply with any lawful order or any instru!tions of a superior offi!er.
&he )anagement has already gi"en due !onsideration to
Credos!andalous a!tuations for se"eral times in the past. Re!ords also
show that she was reprimanded for some offense and did not 7uestion
it. )anagement at this +un!ture has already met its ma3imum toleran!e
point so it has de!ided to put an end to Credo 'eing an undesira'le
employee.
&he !ommittee re!ommended Credo-s termination with forfeiture of
'enefits. Credo was informed that she was 'eing !harged with !ertainoffenses. Nota'ly these offenses were those whi!h NASECO-s
Committee on #ersonnel Affairs already resol"ed ha"e 'een
!ommitted 'y Credo.
In #ere4-s offi!e and in the presen!e of NASECO-s Committee on
#ersonnel Affairs Credo was made to e3plain her side in !onne!tion
with the !harges filed against her0 howe"er due to her failure to do so
she was handed a Noti!e of &ermination. 8en!e Credo filed a
supplemental !omplaint for illegal dismissal alleging a'sen!e of +ust or
authori4ed !ause for her dismissal and la!% of opportunity to 'e heard.
La!or ar!iter 6 rendered a de!ision dismissing Credo-s !omplaint and
dire!ting NASECO to pay Credo separation pay e7ui"alent to one half
month-s pay for e"ery year of ser"i!e.
NLRC6 rendered a de!ision dire!ting NASECO to reinstate Credo to her
former position or su'stantially e7ui"alent position with si3 9:; months-
'a!%wages and without loss of seniority rights and other pri"ileges
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appertaining thereto and dismissing Credo-s !laim for attorney-s fees
moral and e3emplary damages.
SSE $' *ON petitioners violate+ t,e reireents an+ate+ !/
la on terination#
1EL2' 1. s de!ision to dismiss
an employee with reasons therefor !an only 'e issued after the
employer has afforded the employee !on!erned ample opportunity to
'e heard and to defend himself.
In the !ase at 'ar NASECO did not !omply with these guidelines in
effe!ting Credo>s dismissal. Although she was apprised and ?gi"en the
!han!e to e3plain her side@ of the !harges filed against her this !han!e
was gi"en so perfun!torily thus rendering illusory Credo>s right tose!urity of tenure. &hat Credo was not gi"en ample opportunity to 'e
heard and to defend herself is e"ident from the fa!t that the !omplian!e
with the in+un!tion to apprise her of the !harges filed against her and to
afford her a !han!e to prepare for her defense was dispensed in only a
day. &his is not effe!ti"e !omplian!e with the legal re7uirements
aforementioned.
&he fa!t also that the Noti!e of &ermination of Credo>s employment 9or
the de!ision to dismiss her; was dated = No"em'er 1B and made
effe!ti"e 1 De!em'er 1B shows that NASECO was already 'ent on
terminating her ser"i!es when she was informed on 1 De!em'er 1B
of the !harges against her and that any hearing whi!h NASECO
thought of affording her after = No"em'er 1B would merely 'e pro
forma or an e3er!ise in futility.
$esides Credo>s mere non,!omplian!e with (oren>s memorandum
regarding the entry pro!edures in the !ompany>s Statement of $illings
Ad+ustment did not warrant the se"ere penalty of dismissal.
SSE "' *ON t,e alle3e+ in4ractions coitte+ !/ Cre+o ere
not proven or# even i4 prove+# col+ !e consi+ere+ to ,ave !een
con+one+ !/ petitioners.
1EL2 "' s termination of
employment NASECO !laims as additional lawful !auses for dismissalCredo>s pre"ious and repeated a!ts of insu'ordination dis!ourtesy and
sar!asm towards her superior offi!ers alleged to ha"e 'een !ommitted
from 1B to Fuly 1B. If su!h a!ts of mis!ondu!t were indeed
!ommitted 'y Credo they are deemed to ha"e 'een !ondoned 'y
NASECO. *or instan!e sometime in 1B when Credo allegedly
?rea!ted in a s!andalous manner and raised her "oi!e@ in a dis!ussion
with NASECO>s A!ting head of the #ersonnel Administration no
dis!iplinary measure was ta%en or meted against her. Nor was she
e"en reprimanded when she allegedly tal%ed ?in a shouting or yelling
manner@ with the A!ting )anager of NASECO>s $uilding )aintenan!eand Ser"i!es Department in 1B or when she allegedly ?shouted@ at
NASECO>s Corporate Auditor ?in front of his su'ordinates displaying
arrogan!e and unruly 'eha"ior@ in 1B or when she allegedly shouted
at NASECO>s Internal Control Consultant in 1B1. $ut then in sharp
!ontrast to NASECO>s pen!hant for ignoring the aforesaid a!ts of
mis!ondu!t when Credo !ommitted fre7uent tardiness in August and
Septem'er 1B she was reprimanded.
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SSE 5' *ON petitioners 4aile+ in t,e !r+en o4 provin3 t,at t,e
terination o4 Cre+o as 4or a vali+ or at,orie+ case an+ t,e
terination o4 Cre+o as not 4or a vali+ or at,orie+ case.
1EL2 5' s
employment was sought to 'e legally terminated were insuffi!iently
pro"ed as to +ustify dismissal reinstatement is proper. *or ?a'sent the
reason whi!h ga"e rise to the employee>s2 separation from
employment there is no intention on the part of the employer to dismiss
the employee !on!erned.@ And as a result of ha"ing 'een wrongfully
dismissed Credo is entitled to three 9; years of 'a!%wages without
dedu!tion and 7ualifi!ation.
SSE ' *ON NLRC ,as ris+iction.
1EL2 '
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=. )AR&IN
*a!ts6
#ri"ate respondent Central #hilippine Hnion )ission
Corporation of the Se"enth Day Ad"entists 9SDA; is a religious
!orporation under #hilippine law and is represented 'y the other pri"aterespondents. #etitioner was a pastor of SDA until 1BB1 when his
ser"i!es were terminated. Austria wor%ed with SDA for = years. 8e
started as a literature e"angelist in 1B: then got promoted se"eral
times. 8e 'e!ame the Assistant #u'lishing Dire!tor in the est
Jisayan )ission of the SDA in 1B: and #astor in the est Jisayan
)ission in 1B=.*inally in 1BB he was promoted as Distri!t #astor of
the Negros )ission of the SDA.
On "arious o!!asions from August to O!to'er 1BB1 Austria
re!ei"ed se"eral !ommuni!ations from )r. I'esate treasurer of the
Negros )ission as%ing the former to admit a!!ounta'ility andresponsi'ility for the !hur!h tithes and offerings !olle!ted 'y his wife
&helma Austria in his distri!t and to remit the same to the Negros
)ission. In his answer petitioner said that he should not 'e made
a!!ounta'le sin!e it was pri"ate respondent #astor $uhat and )r.
I'esate who authori4ed his wife to !olle!t the tithes and offerings sin!e
he was "ery si!% to do the !olle!ting at that time. &hereafter petitioner
went to the offi!e of #astor $uhat president of the Negros )ission and
as%ed for a !on"ention to settle the dispute 'etween petitioner and
#astor Rodrigo. #astor $uhat denied the re7uest of petitioner 'e!ause
there was no 7uorum. &he two e3!hanged heated arguments until
petitioner left the offi!e. 8owe"er while on his way out he heard #astor
$uhat saying #astor daw inisog na ina iya 9#ador you are tal%ing
tough;K whi!h prompted him to go 'a!% and o"erturn #astor $uhat
ta'le s!atter 'oo%s in the offi!e 'ang $uhat atta!hL !ase and throw
the phone. #etitioner re!ei"ed a letter in"iting him and his wife to attend
the meeting to dis!uss the non,remittan!e of !hur!h !olle!tion and the
e"ents that transpired 'etween him and #astor $uhat.
A fa!t,finding !ommittee was !reated to in"estigate petitioner.
Su'se7uently petitioner re!ei"ed a letter of dismissal !iting
misappropriation of denominational funds willful 'rea!h of trust serious
mis!ondu!t gross and ha'itual negle!t of duties and !ommission of an
offense against the person of employer-s duly authori4ed
representati"e as grounds for the termination of his ser"i!es #etitioner
filed a !omplaint with the (a'or Ar'iter for illegal dismissal. M de!ision
rendered in fa"or of petitioner =; SDA appealed to N(RC M de!isionrendered in fa"or of respondent; #etitioner filed motion for
re!onsideration M reinstated de!ision of (a'or Ar'iter ; SDA filed
motion for re!onsideration M de!ision rendered in fa"or of respondent
8en!e this re!ourse to the !ourt 'y the petitioner.
Issues6
1; ON the (a'or Ar'iter/N(RC has +urisdi!tion to try and de!ide the
!omplaint filed 'y petitioner against the SDA
=; ON the termination of the ser"i!es of petitioner is an e!!lesiasti!al
affair and as su!h in"ol"es the separation of !hur!h andstate0
8eld6
&he N(RC grounded its findings on the following postulates6 9a;
the witnesses of #8I(S&EE( are !redi'le for petitioner failed to show
any ground for them to falsely testify espe!ially in the light of his
e3!ellent +o' performan!e0 and 9'; respondents- witnesses are more
!redi'le than petitioner-s (u%'an who insofar as the sour!e of the
information is !on!erned impressed the N(RC as e"asi"e. $8 &he
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N(RC howe"er entertained a patent misapprehension of the 'urden of
proof rule in la'or termination !ases. Hnli%e in other !ases where the
!omplainant has the 'urden of proof to dis!harge in la'or !ases
!on!erning illegal dismissals the 'urden of pro"ing that the employee
was dismissed with +ust !ause rests upon the employer. $9 Su!h is the
mandate of Art. = of the (a'or Code.
. )IRANDA
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In the fourth situation the dismissal should 'e upheld. hile the
pro!edural infirmity !annot 'e !ured it should not in"alidate the
dismissal. 8owe"er the employer should 'e held lia'le for non,
!omplian!e with the pro!edural re7uirements of due pro!ess.
&he present !ase s7uarely falls under the fourth situation. &he
dismissal should 'e upheld 'e!ause it was esta'lished that the
petitioners a'andoned their +o's to wor% for another !ompany. #ri"ate
respondent howe"er did not follow the noti!e re7uirements and
instead argued that sending noti!es to the last %nown addresses would
ha"e 'een useless 'e!ause they did not reside there anymore.
Hnfortunately for the pri"ate respondent this is not a "alid e3!use
'e!ause the law mandates the twin noti!e re7uirements to the
employee>s last %nown address. &hus it should 'e held lia'le for non,
!omplian!e with the pro!edural re7uirements of due pro!ess.
&he Court ruled that respondent is lia'le for petitioners> holiday payser"i!e in!enti"e lea"e pay and 1th month pay without dedu!tions.
&he e"ident intention of #residential De!ree No. 51 is to grant an
additional in!ome in the form of the 1th month pay to employees not
already re!ei"ing the same so as ?to further prote!t the le"el of real
wages from the ra"ages of world,wide inflation.@ Clearly as additional
in!ome the 1th month pay is in!luded in the definition of wage under
Arti!le B9f; of the (a'or Code.
An employer is prohi'ited under Arti!le 11 of the same Code from
ma%ing any dedu!tions without the employee>s %nowledge and !onsent.
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5. &A(A<
CO(H)$HS #8I(I##INES $HS COR#ORA&ION
JS
NA&IONA( (A$OR RE(A&IONS CO))ISION
SE#&E)$ER =1
*AC&S6
#etitioner Colum'us #hilippines $us Corporation is engaged in
the 'usiness of operating passenger 'uses. Sin!e the start of its
operation in 1BB it has maintained a list of dri"ers and !ondu!tors who
rendered ser"i!e in 'us units allegedly on a ?first !ome first ser"ed@
'asis and !ompensated purely on !ommission. &he dri"ers and
!ondu!tress wor%ed for a'out ten to fifteen days a month and were
allegedly not re7uired to wor% e"eryday.
#ri"ate respondent Roman Domasig started wor%ing as a dri"er withthe petitioner on August 1BB while his wife and respondent
enaidaDomasig was employed as a 'us !ondu!tress. &he
employment of pri"ate respondents with the petitioner was a'ruptly
terminated for their ha"ing alleged formed a la'or union. Roman
Domasig narrated that on Fanuary =1 1BB= he was for!ed to "a!ate
the 'us he was regularly dri"ing 'e!ause of the alleged formed la'or
union and from that time was ne"er allowed to wor% with the petitioner.
enaida and Roman also narrated that they planned to put up a la'or
union 'e!ause of illegal dedu!tions e3!essi"e wor% for 1B to = hoursper day and unfair la'or pra!ti!e 'y the petitioner. Hpon learning of the
alleged formed la'or union one of the offi!ers of the petitioner
AttyCata'ian !alled the attention of Roman for the alleged union la'or
and informed him that he will surely dismissed him from wor%. &hus two
!ases of unfair pra!ti!e la'or illegal dismissal non,payment of ser"i!e
in!enti"e lea"e pay and 1 th month pay were instituted 'y pri"ate
respondents against petitioner. (a'or Ar'iter found for the pri"ate
respondents and ordered the petitioner to reinstate them to their former
positions without loss of seniority rights and with 'a!%pay. Aggrie"ed
'y the re"ersed +udgment of the (a'or Ar'iter petitioner appealed tothe N(RC. #etitioner alleges that pri"ate respondents are not regular
employees. N(RC affirmed the de!ision of the (a'or Ar'iter that they
were illegally dismissed and that pri"ate respondents are regular
employees of the petitioner 'e!ause of the reasona'le !onne!tion of
the spe!ifi! a!ti"ity performed 'y the employee in relation to the usual
trade or 'usiness of the employer. #etitioner again appealed to the CA
'ut affirmed the de!ision of the N(RC. &hey 'rought their !ase to the
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Supreme Court presenting its main argument that their termination was
a "alid and authori4ed !ause on the ground of a'andonment of wor%.
ISSHE6
hether or not pri"ate respondents are illegally dismissed.
8E(D6
&he Supreme Court held that pri"ate respondents are illegallydismissed. In termination !ases the 'urden of pro"ing that the
dismissal of the employees was for a "alid and authori4ed !ause rests
on the employer. It was in!um'ent upon the petitioner to show 'y
su'stantial e"iden!e that the termination of the employees was "alidly
made and upon failure to dis!harge that duty would mean that the
dismissal is not +ustified and therefore illegal. On the other hand
a'andonment as a +ust and "alid ground for dismissal re7uires the
deli'erate un+ustified refusal of the employee to resume his
employment. )ere a'sen!e or failure to report for wor% after noti!e toreturn is not enough to amount su!h a'andonment. *or a "alid finding
of a'andonment two fa!tors must 'e present6 the failure to report for
wor% without "alid or +ustifia'le reason and !lear intention to se"ere
employer employee relationship. #ri"ate respondents were as%ed to
relin7uish their assigned 'uses and from that date forward they were
not gi"en 'us assignments. &hus under the !ir!umstan!es pri"ate
respondent>s a'sen!es are supported with "alid reason and that they
ne"er intended to se"ere their employer employee relationship. #ri"ate
respondents are illegally dismissed.
:. AGORI((A
DE #AH(/PING #8I(I# CHS&O)S &AI(OR AND/OR )I(AGROS
C8HAPA< and I((IA) GO petitioners
"s.
&8E NA&IONA( (A$OR RE(A&IONS CO))ISSION 9N(RC; et al.
*a!ts6
#ri"ate respondents are employees of petitioners. &hey formed
a la'or organi4ation affiliating themsel"es with *ederation of *reeor%ers !alling themsel"es **,%apatirang)anggagawasa De
#aul/Ping #hilip !ustoms &ailor. On mar!h 1BB the union filed a noti!e
of stri%e due to unfair la'or pra!ti!e. On : April 1BB the union
president pri"ate respondent Ji!toriano Santos stopped wor%ing. &his
was followed 'y the wal% out of the other pri"ate respondents from
their +o's on 1= April 1BB.
On 1 )ay 1BB the union filed against the petitioners a !ase
for unfair la'or pra!ti!e illegal dismissal and non,payment of o"ertime
pay 'efore the N(RC National Capital Region Ar'itration $ran!h.On =1 Fune 1BB pri"ate respondents disaffiliated from the **. &he
disaffiliation was !aused 'y the failure of ** to send a representati"e
in two hearings of the !ase of the pri"ate respondents 'efore the la'or
ar'iter.
#ri"ate respondents !laimed that they were pre"iously warned
'y the petitioners not to organi4e a union nor 'e a mem'er of the
same. Otherwise they will 'e dismissed. Ne"ertheless they still formed
the said union.
#etitioners denied dismissing the respondents arguing further
that the respondents wal%ed out from their +o's to prepare for a stri%e toe3tort money from them. #etitioners !ontend that they sent noti!es to
respondents to return to wor% sa"e two wor%ers who refused to a!!ept
the same.
Respondents denied ha"ing re!ei"ed any noti!e to return to
wor%. &hey alleged that they were e"en pre"ented to enter the
premises of the wor% pla!e and were threatened 'y ?hired@ poli!emen
who possessed fa%e warrants of arrest.
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&he la'or ar'iter dismissed the !omplaint of the respondents for
illegal dismissal. Appeal howe"er was granted to respondents ma%ing
the petitioners lia'le for illegal dismissal. &hus re7uiring the petitioners
to pay 'a!% wages plus a!tual reinstatement of the dismissed
employees.
Issue6
/N the petitioners are lia'le for illegal dismissal.
8eld6
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her ser"i!es for petitioner s!hool during the period from 1B55,1B
should 'e !redited in the !omputation of her retirement 'enefits.
ISSHE6 ON &er!ero a'andoned her wor%.
8E(D6
s $ar'ershop.
&his in!ludes #eter )e+ila.
. infield $ar'ershop is the new name of Dina>s $ar'ershop.
infield is now owned 'y #a4 Fo and Cesar FO
5. #eter )a+ila was paid on a !ommission 'asis. =/ to the $ar'er
1/ to the owner.
:. 1B. #eter was designated as !areta%er of the shop 'e!ause
he 'e!ame unfit. As !areta%er he was paid a fi3ed monthly
honorarium
. #eter )e+ila was also as%ed to do other tas%s i.e. to report to theowner the malfun!tioning air!ondition to !all laundry woman to
wash dirty linen to re!ommend appli!ants for inter"iew and
hiring attend to other needs of the shop.
. 1B:. infield $ar'ershop !losed. Reason6 $uilding was
demolished.
B. (ater a new 'ar'ershop opened. It is named as Cesar>s #ala!e
$ar'ershop.
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&he employer wrote him that if he will not go 'a!% for wor% he will 'e
dismissed.
Instead of !omplying with su!h order the respondent filed an a!tion for
illegal dismissal and prayed for a separation pay and full 'a!% wages.
$e!ause of his !ontinued a'sen!e he was dismissed.s
sses' 1. Is the respondent Illegally dismissed
=. Is he entitled for separation pay
1el+'
1. &he respondent was not illegally dismissed. 8is dismissal is for "alid
!ause. $ased on the fa!ts what is terminated is his assignment only in
the H.S *a!ility and not his employment with the A##SI and it is without
pre+udi!e for reassignment to another or other !lient.
It is his own a!t his !ontinued a'sen!e without offi!ial lea"e that
!auses his termination.
Hnder su!h !ir!umstan!es the employer is +ustified in terminating hisemployment due to his own a'andonment.
= 8e is not entitled for separation pay. Hnder the la'or !ode employee
is entitled only for separation pay if his dismissal or termination is due
to retren!hment !losure of the 'usiness or disease.
1. ROTAS
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11. A(O&A
enphil Corporation "s N(RC
*a!ts6Ro'erto )allare was hired 'y petitioner on Fanuary 1 1B as
a !rew mem'er at its Cu'ao $ran!h. 8e thereafter 'e!ame the
assistant head of the $a!%room department of the same 'ran!h. At
a'out =6 #.). on )ay = 1B5 pri"ate respondent had an alter!ation
with a !o,employee Fo' $arrameda as a result of whi!h he and
$arrameda were suspended on the following morning and in the
afternoon of the same day a memorandum was issued 'y the
Operations )anager ad"ising pri"ate respondent of his dismissal from
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%AC&S'
#ri"ate respondents were hired 'y FAPA 'ut their ser"i!es were
e"entually terminated on August =B 1BB due to ?dire finan!ial straits It
is not disputed 'y the parties that the termination was effe!ted without
FAPA !omplying with the re7uirement under Arti!le = of the (a'or
Code regarding the ser"i!e of a written noti!e upon the employees and
the Department of (a'or and Employment at least one 91; month
'efore the intended date of termination.Respondents filed !omplaints at Regional Ar'itration $ran!h N(RC for
illegal dismissal underpayment of wages and non,payment of ser"i!e
in!enti"e lea"e and 1th month pay against FAPA and its 8RD
)anager Rosana Castelo.
&he (a'or Ar'iter rendered a de!ision de!laring the
termination illegal and ordering FAPA and its 8RD )anager to reinstate
respondents with full 'a!%wages and separation pay if reinstatement is
not possi'le.
&here from FAPA appealed to the N(RC August 1BBB de!ision6 Affirmed in toto that of the (a'or
Ar'iter>s de!ision.
FAPA filed a motion for re!onsideration6.
N(RC>s de!ision on Fanuary = =6 It re"ersed and set
aside the awards of 'a!%wages and ser"i!e in!enti"e lea"e pay. Ea!h
of the !omplainants,appellees shall 'e entitled to a separation pay
e7ui"alent to one month and the sum of #=. as indemnifi!ation
for its failure to o'ser"e due pro!ess in effe!ting the retren!hment.
FAPA filed again motion for re!onsideration6
)R denied 'y the N(RC in its resolution of April = =.
Respondents filed a petition for !ertiorari to the Court of Appeals.
N(RC>s de!ision on Fanuary = = is re"ersed and set
aside. CA ordered FAPA to pay petitioners separation pay e7ui"alent to
one 91; month salary the proportionate 1th month pay and full
'a!%wages from the time their employment was terminated on August
=B 1BB up to the time the De!ision herein 'e!omes final.
FAPA mo"ed for motion for re!onsideration.
)otion was denied in its resolution of Fanuary ==.
FAPA assailed and sought to 'e set aside in this appeal 'y way of a
petition for re"iew on !ertiorari under rule 5 of the Rules of Court CA>s
de!ision dated 1: No"em'er =1 and the resolution dated Fanuary
==.
SSE'
hat are the legal impli!ations of a situation where an employee is
dismissed for !ause 'ut su!h dismissal was effe!ted without the
employer>s !omplian!e with the noti!e re7uirement under the (a'or
Code
RLNG6
Court ruled that there was ground for respondents> dismissal i.e.
retren!hment whi!h is one of the authori4ed !auses enumerated under
Arti!le = of the (a'or Code 'ut it is esta'lished that FAPA failed to!omply with the noti!e re7uirement under the same Arti!le. Considering
the fa!tual !ir!umstan!es the !ourt deemed it proper to fi3 the
indemnity at #5 . as nominal damages for non,!omplian!e with
statutory due pro!ess.
&he Court of Appeals ha"e 'een in error when it ordered FAPA to pay
respondents separation pay e7ui"alent to one 91; month salary for
e"ery year of ser"i!e. ?In all !ases of 'usiness !losure or !essation of
operation or underta%ing of the employer the affe!ted employee is
entitled to separation pay. &his is !onsistent with the state poli!y of
treating la'or as a primary so!ial e!onomi! for!e affording full
prote!tion to its rights as well as its welfare. &he e3!eption is when the
!losure of 'usiness or !essation of operations is due to serious
'usiness losses or finan!ial re"erses0 duly pro"ed in whi!h !ase the
right of affe!ted employees to separation pay is lost for o'"ious
reasons.@
1. &ARIGA
17
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s dismissal stemmed from an in!ident on 5 August 1BB5
when she made a dou'le payment to a 'oo% agent. Instead of paying
the agent the amount of two thousand se"en hundred si3ty pesos
9#=:.; for a single transa!tion she paid the amount of fi"e
thousand fi"e hundred twenty pesos 9#55=.;. &hus in its
memorandum of 1= August 1BB5 RET ordered DE GH)AN to e3plain
within hours why she should not 'e penali4ed for dereli!tion of duty
pursuant to Se!tion 1A Arti!le III of RET>s rules and regulations and
suspended her for thirty 9; days 'eginning 1 August 1BB5 pending
the in"estigation of the !ase against her .2
In !omplian!e with the aforesaid memorandum DE GH)AN
su'mitted to RET her e3planation dated 1 August 1BB5.2 She alleged
therein that sin!e she was hired in 1BB it has 'een the !ompany>s
pro!edure in paying its freelan!e agents that the sales !ler% will ma%etwo !opies of the unoffi!ial re!eipt of payments one gi"en to RET and
the other to the agent. 8owe"er on 5 August 1BB5 the sales !ler%
Emmie Idio issued to a sales agent two unoffi!ial re!eipts for the same
transa!tion. $oth re!eipts 'ore the identi!al amount of two thousand
se"en hundred si3ty pesos 9#=:.;. &he agent then presented
'oth re!eipts to DE GH)AN. Noting the two re!eipts DE GH)AN
as%ed the agent whether he made two deli"eries on that day. hen the
agent answered in the affirmati"e DE GH)AN paid the agent fi"e
thousand fi"e hundred twenty pesos 9#55=.; !orresponding to the
total amount of the re!eipts. She !laimed that she failed and did not
ha"e the opportunity to "erify from Emmie Idio a'out the issuan!e of
the two re!eipts 'e!ause on that day there were many !ustomers.
DE GH)AN !ontended that she !annot 'e held responsi'le for the
o"erpayment as she merely followed the usual pro!edure in the
!ompany. It should 'e the sales !ler% Emmie Idion who should 'e
held responsi'le for the issuan!e to the agent of two re!eipts.Not satisfied with her e3planation RET through Ro7ue C. Solomon of
its #ersonnel Department ser"ed on DE GH)AN on 1 Septem'er
1BB5 a !onfidential memorandum informing her of the termination of
her ser"i!es. &he memorandum reads6
&he de!ision on your !ase has 'een released under R$S,#RES B5,
1 dated Septem'er 1 1BB5 the dispositi"e portion of whi!h reads
as follows6
?U )anagement is left with no alternati"e 'ut to affirm the
re!ommendation of the *a!t *inding Committee not only to dismiss her
9referring to )iss (i4a de Gu4man; from the Company 'ut to see%
re!o"ery of the amount of #=:. if not intentionally
misappropriated.@
Earlier on 5 August 1BB5 a day after she was pla!ed under pre"enti"e
suspension DE GH)AN filed a !omplaint for illegal suspension with
the National Capital Region,Ar'itration $ran!h of the N(RC.
Immediately after her dismissal from the ser"i!e DE GH)AN
amended her !omplaint to in!lude illegal dismissal and !laims for
thirteenth,month pay and attorney>s fees.2 &he !omplaint was further
amended on 1 Septem'er 1BB5 and 1 O!to'er 1BB5 to in!lude!laims for payment of a!tual moral and e3emplary damages.2
In its Answer to the !omplaint RET alleged that the purported defe!t in
the dis'ursement pro!edure as !laimed 'y DE GH)AN !annot 'e
used 'y her as an e3!use for her negligen!e and that the payment
made to the agent without proper authori4ation from the super"isor
"iolated RET>s standard operating poli!y that ?no dis'ursement of fund
may 'e made 'y a !ashier without the appro"al of his/her immediate
super"isor.@
18
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On 1 De!em'er 1BB: (a'or Ar'iter Salimathar $. Nam'i rendered a
de!isionB2 in fa"or of DE GH)AN the dispositi"e portion of whi!h
reads6 to reinstate !omplainant without loss of seniority rights and other
pri"ileges and to pay !omplainant her full 'a!% wages in!lusi"e of
allowan!es !omputed from the time of her termination 9Septem'er 1
1BB5; up to the time of her a!tual reinstatement.
RET appealed the de!ision to the N(RC.
On = )ay 1BB the N(RC rendered a de!ision12 affirming withmodifi!ation the de!ision of the (a'or Ar'iter 'y ordering the payment
of separation pay in lieu of reinstatement and deleting the award of
'a!% wages and attorney>s fee. &he portion of the de!ision reads6
#RE)ISES CONSIDERED the De!ision dated De!em'er 1 1BB: is
here'y )ODI*IED 'y ordering respondent to pay !omplainant the
amount of thirty four thousand one hundred si3ty four pesos
9#1:; as separation pay.
SO ORDERED.
In deleting the award of 'a!% wages the N(RC rationali4ed as follows6
e disagree with the (a'or Ar'iter>s finding that respondent failed to
su'stantiate !omplainant>s negligen!e. As !orre!tly argued 'y
respondent !omplainant herself admitted that she failed to in7uire the
"era!ity of the two unoffi!ial re!eipts of respondent>s position paper.
&hat there were many !ustomers on that day is not a "alid e3!use for
her not to "erify said re!eipts from the sales !ler% who issued the same
or from her immediate super"isor.
8owe"er while we find that !omplainant was negligent it !annot 'e
!onsidered gross as to warrant her termination from the ser"i!e. As the
fa!ts of the !ase show the error !ommitted was not the fault of the!omplainant alone. &he sales !ler% who issued two 9=; unoffi!ial
re!eipts to the agent !ontrary to the usual pro!edure of the !ompany
is also partly to 'e 'lamed in the in!ident. *urther the agent also made
misrepresentation to the !omplainant.
&a%ing into !onsideration the fa!tual !ir!umstan!es of the !ase the
period within whi!h !omplainant was out of wor% shall 'e !onsidered as
her penalty. Stated differently she is not entitled to 'a!%wages.
In a Partial Motion for Reconsideration, DE GH)AN as%ed for a
modifi!ation of the de!ision to in!lude payment of 'a!% wages. &he
N(RC denied the motion in its resolution of 1 Fuly 1BB. 1=2
sse' DE GH)AN then filed the instant spe!ial !i"il a!tion.
1.)hether or not the N(RC !ommitted gra"e a'use of dis!retion
amounting to la!% or e3!ess of +urisdi!tion when it modified the (a'or
Ar'iter>s de!ision 'y deleting the grant of 'a!% wages as penalty for her negligent a!t despite the affirman!e of the (a'or Ar'iter>s finding that
her dismissal was illegal.
2.)hether the deletion of 'a!%wages was too harsh and grossly
disproportionate to the infra!tion she !ommitted.
1el+' e find merit in this petition.
1.)&he general rule is that where there is a finding of illegal dismissal
an employee is entitled to reinstatement and to re!ei"e 'a!% wages
from the date of his dismissal up to the time of his reinstatement without
loss of seniority rights and se!ondly the payment of 'a!% wages
!orresponding to the period from his illegal dismissal up to a!tual
reinstatement &hese twin remedies of reinstatement and payment of
'a!% wages ma%e whole the dismissed employee. &hese two remedies
gi"e meaning and su'stan!e to the !onstitutional right of la'or to
se!urity of tenure.12
8owe"er the two remedies are distin!t and separate. &hough the grant
of reinstatement !ommonly !arries with it an award of 'a!% wages the
inappropriateness or non,a"aila'ility of one does not !arry with it the
inappropriateness or non,a"aila'ility of the other. &he award of one isnot a !ondition pre!edent to an award of another. $a!% wages may 'e
ordered without ordering reinstatement0 !on"ersely reinstatement may
'e ordered without payment of 'a!% wages.12
&hus in a num'er of !ases12 the Court despite its order of
reinstatement or award of separation pay in lieu of reinstatement
deemed it appropriate not to award 'a!% wages as penalty for the
mis!ondu!t or infra!tions !ommitted 'y the employee.
19
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In the !ase at 'ar we hold that the fa!tual !ir!umstan!es o'taining in
the !ase at 'ar do not warrant e3!eption to the general prin!iple that an
employee is entitled to reinstatement and to re!ei"e 'a!% wages where
there is a finding of illegal dismissal.
&here is here no deli'erate intent on the part of DE GH)AN to
pre+udi!e the !ompany. It !an 'e safely said that at most DE GH)AN
!ommitted merely an error of +udgment in paying the sales agent
without "erifying the authenti!ity of the re!eipts. Contrary to the !laim of RET there was no standard operating poli!y that ?no dis'ursement of
fund may 'e made 'y a !ashier without the appro"al of his/her
immediate super"isor.@ Re3>s own witness Emmie Idio the !ler% who
issued the re!eipts stated in her affida"it that ?it has always 'een the
pro!edure at RET $oo%store Re!to $ran!h that when an outside sales
agent does not ha"e a re!eipt of his own the $oo%store through its
sales !ler% prepares two 9=; identi!al !opies of an unoffi!ial re!eipt
e"iden!ing the payment of the 'oo%s0 one !opy to 'e retained 'y the
$oo%store and the other to 'e issued to the agent upon payment 'y the
!ashier.@1B2 &herefore it is !lear that in the payment of outside sales
agent prior appro"al of immediate superior is not re7uired.
)ore importantly this was the first time that DE GH)AN made an
o"erpayment as !orre!tly o'ser"ed 'y respondent N(RC she was not
solely responsi'le for the said in!ident. &he fa!t of o"erpayment was
primarily attri'uta'le to the sales !ler% who issued two unoffi!ial
re!eipts to the sales agent in "iolation of standard !ompany poli!y as
well as the misrepresentation !ommitted 'y the 'oo% agent that the two
re!eipts !o"ered two separate transa!tions.
DE GH)AN>s good faith is further 'uttressed 'y the fa!t that the twounoffi!ial re!eipts whi!h ser"ed as 'asis for payment were retained in
the !ompany>s file together with the re!eipts of payment and were 'oth
mar%ed as paid.=2 In fa!t RET !an demand from the 'oo% agent who
is a regular !lient the return of the o"erpaid amount.
&he pre"ious offense that DE GH)AN had !ommitted on Fuly 1BB
for willful refusal to perform one>s assigned wor% or to !omply with
instru!tion of super"isor !ould no longer 'e utili4ed to aggra"ate the
present offense.=12 8er pre"ious offense was an entirely separate and
distin!t "iolation of !ompany rules. &he !orre!t rule is that pre"ious
infra!tions may 'e used as +ustifi!ation for an employee>s dismissal
from wor% in !onne!tion with a su'se7uent similar offense.==2
2.)In determining the penalty to 'e imposed on an erring employee due
!onsideration must 'e gi"en to the employee>s length of ser"i!e and the
num'er of "iolations he !ommitted during his employ.=2 In a similar
!ase the Court ruled that dismissal is too harsh a penalty for the
ineffi!ien!y of an employee where the offense was the first to 'e!ommitted 'y an employee and she did not do it with mali!e aside from
the fa!t that she was not solely responsi'le for the in!idents. &he
suspension of the employee would ha"e suffi!ed.=2
On the 'asis of the foregoing the !on!lusion is ine"ita'le that the total
withholding of full 'a!% wages is too harsh and se"erely
disproportionate to the offense !ommitted 'y DE GH)AN. In all
!ases where punishment of any sort is imposed the penalty shall 'e
!ommensurate with the nature and gra"ity of the offense !harged
ta%ing into !onsideration the "arying !ir!umstan!es surrounding ea!h
parti!ular !ase. &he offender shall howe"er 'e gi"en the 'enefit of all
dou'ts that may e3ist as to his responsi'ility for the offense
!harged. &his di!tum is in !onsonan!e with the poli!y of the State as
em'odied in the Constitution to resol"e dou'ts in fa"or of la'or .=52
As to the 'a!% wages settled is the rule that the amount thereof to 'e
awarded to an illegally dismissed employee must 'e !omputed from the
time the !ompensation was withheld up to the time of a!tual
reinstatement without dedu!tion of earnings deri"ed elsewhere
pending the resolution of the !ase.12 $ut sin!e in this !ase separation
pay was awarded in lieu of reinstatement the 'a!% wages must 'e!omputed from the time of DE GH)AN>s illegal dismissal until the
finality of this de!ision. =2
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1. &ARIGA
GLO>E &ELECOER&O
GALANG# petitioners, vs. =OAN %LOREN2O-%LORES# respondent.
>ELLOSLLO# J .'
*AC&S6
#etitioner G(O$E &E(ECO) INC. 9G(O$E; is a !orporation
duly organi4ed and e3isting under the laws of the
#hilippines. #etitioners Delfin (a4aro Fr. was its #resident and
Ro'erto Galang its former Dire!tor,Regional Sales. Respondent Foan
*lorendo,*lores was the Senior A!!ount )anager for Northern (u4on.
On 1 Fuly 1BB Foan *lorendo,*lores filed with the Regional
Ar'itration $ran!h of the National (a'or Relations Commission 9N(RC;
an amended !omplaint for !onstru!ti"e dismissal against G(O$E
(a4aro Galang and Ca!holo ). Santos her immediate superior(u4on 8ead,Regional Sales. In her affida"it su'mitted as e"iden!e
during the ar'itration pro!eedings *lorendo,*lores 'ared that Ca!holo
). Santos ne"er a!!omplished and su'mitted her performan!e
e"aluation report there'y depri"ing her of salary in!reases 'onuses
and other in!enti"es whi!h other employees of the same ran% had 'een
re!ei"ing0 redu!ed her to a house,to,house selling agent 9person,to,
person sales agent or dire!t sales agent; of !ompany produ!ts
9handyphone; despite her ran% as super"isor of !ompany dealers and
agents0 ne"er supported her in the sales programs and
re!ommendations she presented0 and withheld all her other 'enefits
i.e. gasoline allowan!e per diems representation allowan!e and !ar
maintenan!e to her e3treme pain and humiliation.2
G(O$E and its !o,petitioners !laimed that after re!ei"ing her
salary in the se!ond wee% of )ay 1BB *lorendo,*lores went AO(
9A'sent ithout (ea"e; without signifying through letter or any other
means that she was resigning from her position0 that notwithstandingher a'sen!e and the filing of her !ase respondent *lorendo,
*lores- employment was not terminated as shown 'y the fa!t that
salary was still pro"ided her until Fuly 1BB to 'e released upon her
presentation of the attendan!e,re!ord sheet indi!ating that she already
returned and reported for wor%0 that she !ontinued to ha"e the use a of
!ompany !ar and !ompany handyphone unit0 that she was repla!ed
only when her a'sen!e 'e!ame indefinite and intolera'le as the
mar%eting operations in Northern (u4on 'egan to suffer0 that during the
pre,trial !onferen!e it was learned that *lorendo,*lores- !omplaint
rested on her alleged personal and pri"ate disagreement with her
immediate superior Ca!holo ). Santos0 that there was no offi!ial a!t
from G(O$E or from other offi!ers of the !ompany in!luding
respondents (a4aro and Galang whi!h !alled for *lorendo,*lores-
termination diminution in ran% seniority and 'enefits or would imply
e"en remotely any of the same0 and that *lorendo,*lores filed the
!omplaint without going through the grie"an!e pro!ess of G(O$E-s
8uman Resour!es Department and without informing its offi!ers of her
pro'lems with Ca!holo ). Santos.
(a'or Ar'iter )onroe C. &a'ingan de!lared *lorendo,*lores toha"e 'een illegally dismissed and ordered petitioners to reinstate her
without loss of seniority rights and full 'enefits0 and to pay full 'a!%
wages in!lusi"e of 'asi! pay allowan!es and 'onuses as prayed for in
the !omplaint amounting to #:=5. e3emplary damages in the
sum of #=. and ten per!ent 91V; of the total monetary
award as attorney-s fees. 8owe"er the (a'or Ar'iter set aside the
!laim of a'andonment as the !ompany failed to send the re7uisite
noti!e to *lorendo,*lores2 hen!e there was no adheren!e to
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pro!edural due pro!ess. Although he re!ogni4ed that the pro'lem
'rewed and e"entually 'oiled o"er due to the a!ts of Ca!holo ).
Santos G(O$E-s former 8ead of Regional Sales (u4on Area the
(a'or Ar'iter found the !ompany negligent in monitoring all its %ey
personnel and thus assessed against it e3emplary damages at the
same time deleting a!tual and moral damages. 52
#etitioners appealed the de!ision to the N(RC whi!h modified
the +udgment of the (a'or Ar'iter. &he N(RC ruled that petitioners didnot dismiss *lorendo,*lores 'ut that the latter a!tually a'andoned her
employment 'e!ause of a disagreement with her immediate superior
whi!h she failed to 'ring to the attention of G(O$E and its offi!ers
parti!ularly petitioners (a4aro and Galang.:2 8owe"er the N(RC
de!lared that if only as an act of gracefor the latter-s past ser"i!es with
the !ompany G(O$E (a4aro and Galang should 'e held a!!ounta'le
for the 'a!% wages of *lorendo,*lores amounting to #:=5.
minus the amount of #:. for the "alue of the !ompany !ar in
*lorendo,*lores- possession or the net amount of #=:=5..2
$oth parties ele"ated the N(RC de!ision to the Court of Appeals ea!h
side through a petition for !ertiorari. In its Resolution of = Septem'er
=.
In its De!ision of =5 )ay =1 the Court of Appeals found that
*lorendo,*lores was !onstru!ti"ely dismissed and that payment of 'a!%
wages and damages was in order. On =1 Fune =1 G(O$E (a4aro
and Galang filed a motion for re!onsideration 'ut the motion was
denied in the appellate !ourt-s Resolution of 1B Septem'er =1.
#etitioners9 Glo'e; filed a spe!ial !i"il a!tion of !ertiorari.
sse'
$. w/n *lorendo,flores9respondent; was !onstru!ti"ely dismissed 'y
Glo'e W w/n Glo'e is lia'le for the a!ts of its employee9 Ca!holo
).Santos;.
". w/n Respondent a'andoned her wor%.
5. w/n the reward of 'a!%wages in the !ase at 'ar is a mere ? a!t of
gra!e.@
1el+'
$.) ?es# the respondent was !onstru!ti"ely dismissed from ser"i!e.
Constru!ti"e dismissal e3ists where there is !essation of wor% 'e!ause
!ontinued employment is rendered impossi'le unreasona'le or
unli%ely as an offer in"ol"ing a demotion in ran% and a diminution in
pay.1:2 All these are dis!erni'le in respondent-s situation. She was
singularly edged out of employment 'y the un'eara'le or undesira'le
treatment she re!ei"ed from her immediate superior Ca!holo ). Santoswho dis!riminated against her without reason , not preparing and
su'mitting her performan!e e"aluation report that would ha"e 'een the
'asis for her in!reased salary0 not forwarding her pro+e!t proposals to
management that would ha"e 'een the sour!e of !ommendation0
diminishing her super"isor stature 'y assigning her to house,to,house
sales or dire!t sales0 and withholding from her the en+oyment of
'onuses allowan!es and other similar 'enefits that were ne!essary for
her effi!ient sales performan!e. Although respondent !ontinued to
ha"e the ran% of a super"isor her fun!tions were redu!ed to a mere
house,to,house sales agent or dire!t sales agent. &his was tantamount
to a demotion. She might not ha"e suffered any diminution in her 'asi!
salary 'ut petitioners did not dispute her allegation that she was
depri"ed of all 'enefits due to another of her ran% and position 'enefits
whi!h she apparently used to re!ei"e.
*ar from pointing to Santos alone as the sour!e of her woes
respondent attri'utes her degraded state to petitioners as
well. *lorendo,*lores !ited petitioners- apathy or indifferen!e to her
plight as she was twi!e left out in a salary in!rease in August 1BB and
)ay 1BB without petitioners gi"ing her any reason.12
It eludes 'elief that petitioners were entirely in the dar% as the salary in!reases were
granted to all employees a!ross,the,'oard 'ut respondent was the
only one left re!ei"ing a #1B1. per month 'asi! salary while the
rest re!ei"ed a 'asi! salary of almost #5. per month. 12 It is
highly impro'a'le that the e3!lusion of respondent had es!aped
petitioners- noti!e. &he a'sen!e of an e"aluation report from Santos
should ha"e 'een noted 'y petitioners and loo%ed into for proper a!tion
22
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to ha"e 'een made. If a salary in!rease was unwarranted then it
should ha"e 'een suffi!iently e3plained 'y petitioners to respondent.
#etitioners argue that respondent *lorendo,*lores !ould ha"e
'rought to their attention the deplora'le treatment she re!ei"ed from
Santos 'y resorting to the !ompany-s grie"an!e ma!hinery so that the
pro'lems in her relationship with Santos !ould then ha"e 'een easily
ironed out 'ut she did not. It remains un!ontro"erted that respondent
had in7uired from petitioners the reason why her other 'enefits had'een withheld and sought !larifi!ation for her undeser"ed treatment 'ut
petitioner !ompany and Santos remained mum.1B2
&hus !ontrary to the o'ser"ation of the N(RC the dispute was
not a mere pri"ate spat 'etween respondent *lorendo,*lores and her
immediate superior Santos. Granting that this was the !ase it had
e3!eeded the periphery of simple personal affairs that o"erflowed into
the realm of respondent-s employment.
Respondent narrates that sometime in Fune 1BB Santos wrote
her a 'aseless a!!usatory letter and he together with G(O$E Sales
Dire!tor Ro'erto Galang one of petitioners herein "er'ally told her
that she should resign from her +o' 'ut she refused. =2 &hereafter in
Fuly 1BB and the months su'se7uent thereto all of respondent-s other
'enefits were withheld without any reason nor e3planation from the
!ompany.=12 E"en as petitioners endea"ored to lay the 'lame on Santos
alone he would not ha"e 'een a'le to single,handedly mastermind the
entire affair as to influen!e Sales Dire!tor Galang and manipulate the
payroll. It only stands to reason that Santos was a!ting pursuant to a
management dire!ti"e or if not then petitioners had !ondoned it or at
the "ery least were negligent in super"ising all of their employees. Asaptly o'ser"ed 'y the (a'or Ar'iter ,
3 3 3 3 it would appear howe"er that the respondent !ompany
was negligent in monitoring all its %ey personnel whi!h in!ludes the
inter,personal relations of ea!h and e"ery %ey segment of the !orporate
ma!hinery. *or su!h it must 'e assessed with +ust and reasona'le
e3emplary damages.==2
".)No# &he unauthori4ed a'sen!e of respondent should not lead to the
drasti! !on!lusion that she had !hosen to a'andon her wor%. &o
!onstitute a'andonment there must 'e6 9a; failure to report for wor% or
a'sen!e without "alid or +ustifia'le reason0 and 9'; a !lear intention as
manifested 'y some o"ert a!t to se"er the employer,employee
relationship=2 re7uisites that are negated 'y the immediate filing 'y
respondent *lorendo,*lores of a !omplaint for !onstru!ti"e dismissal
against petitioners. A !harge of a'andonment is totally in!onsistentwith the immediate filing of a !omplaint for illegal dismissal0 more so
when it in!ludes a prayer for reinstatement.=2
&he redu!tion of respondent-s fun!tions whi!h were originally
super"isory in nature to a mere house,to,house sales agent or dire!t
sales agent !onstitutes a demotion in ran%. *or this a!t of illegal
dismissal she deser"es no less than full 'a!% wages .She shall
!ontinue to en+oy her 'enefits pri"ileges and in!enti"es in!luding the
use of the !ompany !ar and handyphone.
In !onstru!ti"e dismissal the employer has the 'urden of
pro"ing that the transfer and demotion of an employee are for +ust and
"alid grounds su!h as genuine 'usiness ne!essity.=:2
5.)No# It should 'e noted that the award of 'a!% wages in the instant
!ase is +ustified upon the finding of illegal dismissal and not under the
prin!iple of act of grace for past ser"i!es rendered. &here are
o!!asions when the Court e3er!ises li'erality in granting finan!ial
awards to employees 'ut e"en then they !ontemplate only the award
of separation pay and/or finan!ial assistan!e and only as a measure
of social justice when the !ir!umstan!es of the !ase so warrant su!has instan!es of "alid dismissal for !auses other than serious
mis!ondu!t or those refle!ting on the employees- moral !hara!ter. An
award of a!tual and moral damages is not proper as the dismissal is
not shown to 'e attended 'y 'ad faith or was oppressi"e to la'or or
done in a manner !ontrary to morals good !ustoms or pu'li! poli!y.=2 E3emplary damages are li%ewise not proper as these are imposed
only if moral temperate li7uidated or !ompensatory damages are
awarded.=B2
23
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*1ERE%ORE the +udgment appealed from is )ODI*IED.
#etitioners Glo'e &ele!om In!. Delfin (a4aro Fr. and Ro'erto Galang
are ordered to pay respondent Foan *lorendo,*lores full 'a!% wages
from the time she was !onstru!ti"ely dismissed on 15 )ay 1BB until
the date of her effe!ti"e reinstatement without 7ualifi!ation or
dedu!tion. A!!ordingly petitioners are ordered to !ause the immediate
reinstatement of respondent to her former position without loss of seniority rights and other 'enefits.
15. SA(JADOR
N*2E SALES *ARE1OSE CL> an+ AN
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" &hereafter pri"ate respondent !laimed that Apduhan shouted at her
and pre"ented her from resuming wor% 'e!ause she was not the
person referred to in the medi!al !ertifi!ate
" hen she refused to gi"e the !ertifi!ation pri"ate respondent !laims
that Apduhan on!e again shouted at her whi!h !aused her
hypertension to re!ur and e"entually !aused her to !ollapse.
" On August 1 1BB Amalia reported the !onfrontation 'etween her
and Apduhan to the Central #oli!e Distri!t. &hereafter her !ounsel sent
a letter dated August 1 1BB to Apduhan stating that the latter-s alleged
!ontinued harassment and "e3ation against pri"ate respondent !reated
a hostile wor% en"ironment whi!h had 'e!ome life threatening and that
they had no alternati"e 'ut to 'ring the matter to the proper forum.
" On August = 1BB Apduhan issued a )emo ad"ising the latter of a
hearing s!heduled on August 1= 1BB to 'e held at the Hniwide Offi!e
in Xuirino 8ighway and warning her that failure to appear shall
!onstitute as wai"er and the !ase shall 'e su'mitted for de!ision 'ased
on a"aila'le papers and e"iden!e.
On August 1BB pri"ate respondent filed a !ase for illegal dismissal
'efore the (a'or Ar'iter.
" Amalia>s !ounsel sent a letter dated August 1BB to Apduhan
!laiming that the August = 1BB )emorandum was a mere
afterthought in an attempt to +ustify pri"ate respondent-s dismissal0 andthat on August 1BB pri"ate respondent had already filed !harges
against Hniwide and Apduhan.
" On August 1BB Apduhan sent a letter addressed to pri"ate
respondent ad"ising pri"ate respondent to report for wor% as she had
'een a'sent sin!e August 1 1BB0 and warning her that upon her
failure to do so she shall 'e !onsidered to ha"e a'andoned her +o'.
" On Septem'er 1 1BB Apduhan issued a )emo stating that sin!e
pri"ate respondent was una'le to attend the s!heduled August 1=
1BB hearing the !ase was e"aluated on the 'asis of the e"iden!e on
re!ord &hat due to her "iolations Hniwide has no other alternati"e 'ut
to terminate her ser"i!e with the Company effe!ti"e Septem'er 1
1BB on the grounds of "iolations of Company Rules A'andonment of
or% and loss of trust and !onfiden!e. On )ar!h B 1BBB the
(A dismissed the !omplaint for la!% of merit.
#ri"ate respondent appealed the (A-s de!ision to the National
(a'or Relations Commission 9N(RC;.
De!ision dated De!em'er = =6 the N(RC ruled in fa"or
Amalia re"ersing and set aside the (a'or Ar'iter>s de!ision.
Complainant is de!lared !onstru!ti"ely dismissed 'y respondents.
Respondents Hniwide and Apduhan are +ointly and se"erally ordered to
pay !omplainant the following 6 separation pay 'a!%wages moraldamages e3emplary damages and Attorney-s fees. A!!ording to the
N(RC Amalia was su'+e!ted to inhuman and anti,so!ial treatment
oppressi"e to la'or 'y re!ei"ing su!!essi"e memoranda and that she
was not afforded due pro!ess 'y petitioners.
*eeling aggrie"ed HNIIDE and Apduhan appealed to Court of
Appeals.
De!ision dated No"em'er = =16 the CA affirmed in toto theN(RC>s de!ision.
Hniwide and Apduhan filed a #etition for Re"iew see%ing to annul the
De!ision1 dated No"em'er = =1 and the Resolution dated Fuly =
== of the Court of Appeals6
SSE6 hether or not Amalia Rawada was !onstru!ti"ely dismissed
'y HNIIDE and Apduhan.
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RLNG'
No she was not !onstru!ti"ely dismissed 'e!ause the Court
finds the re!ords 'ereft of e"iden!e to su'stantiate the !on!lusions of
the N(RC and the CA that pri"ate respondent was !onstru!ti"ely
dismissed from employment.
Case law defines !onstru!ti"e dismissal as a !essation of wor%
'e!ause !ontinued employment is rendered impossi'le unreasona'leor unli%ely0 when there is a demotion in ran% or diminution in pay or
'oth0 or when a !lear dis!rimination insensi'ility or disdain 'y an
employer 'e!omes un'eara'le to the employee.
&he test of !onstru!ti"e dismissal is whether a reasona'le
person in the employee-s position would ha"e felt !ompelled to gi"e up
his position under the !ir!umstan!es. It is an a!t amounting to dismissal
'ut made to appear as if it were not. In fa!t the employee who is
!onstru!ti"ely dismissed may 'e allowed to %eep on !oming to wor%.
Constru!ti"e dismissal is therefore a dismissal in disguise.
" In the present !ase Amalia !laimed that she had 'een su'+e!ted to
!onstant harassment ridi!ule and inhumane treatment 'y Apduhan.
Supreme Court found the allegation of harassment was a spe!ious
statement whi!h !ontains nothing 'ut empty imputation of a fa!t that
!ould hardly 'e gi"en any e"identiary weight 'y this Court.
" &he sending of se"eral memoranda addressed to a managerial
!on!erning "arious "iolations of !ompany rules and regulations
!ommitted should not 'e !onstrued as a form of harassment 'utmerely an e3er!ise of management>s prerogati"e to dis!ipline its
employees. #re!isely petitioners ga"e pri"ate respondent su!!essi"e
memoranda to gi"e the latter an opportunity to !ontro"ert the !harges
against her. Clearly the memoranda are not forms of harassment 'ut
petitioners> !omplian!e with the re7uirements of due pro!ess.
" #ri"ate respondent-s 'are allegations of !onstru!ti"e dismissal when
un!orro'orated 'y the e"iden!e on re!ord !annot 'e gi"en !reden!e
&herefore# the De!ision dated No"em'er = =1 and Resolution
dated Fuly = == of the CA together with the de!ision dated
De!em'er = = of the N(RC were re"ersed and set aside. &he
!omplaint of pri"ate respondent Amalia #. Pawada was dismissed.
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1:. A(O&A
8
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hether or not the Rustom ). Catinoy was dismissed without !ause
and without due pro!ess of law
Ruling6
Clearly !onstru!ti"e dismissal had already set in when the
suspension went 'eyond the ma3imum period allowed 'y law. Se!tion
Rule TIJ $oo% J of the Omni'us Rules pro"ides that pre"enti"e
suspension !annot 'e more than the ma3imum period of days.
8en!e we ha"e ruled that after the ,day period of suspension theemployee must 'e reinstated to his former position 'e!ause
suspension 'eyond this ma3imum period amounts to !onstru!ti"e
dismissal.
It 'ears stressing that in illegal dismissal !ases it is the
employer who has the 'urden of proof. Sin!e petitioner !laims that
respondent a'andoned his wor% petitioner has to esta'lish the
!on!urren!e of the following6 91; the employee-s intention to a'andon
employment and 9=; o"ert a!ts from whi!h su!h intention may 'e
inferredas when the employee shows no desire to resume
wor%.#etitioner failed to ma%e out its !ase of a'andonment. E"en the
N(RC in its modified de!ision !onfirmed that there were no o"ert a!ts
unerringly pointing to the fa!t that respondent had no intention of
returning to wor% anymore. Also the fa!t that respondent filed a
!omplaint against his employer within a reasona'le period of time
'elies a'andonment.
&he stri!t adheren!e 'y the N(RC to the definition of
!onstru!ti"e dismissal is erroneous. Apparently the N(RC ruled out
!onstru!ti"e dismissal in this !ase mainly 'e!ause a!!ording to it
!onstru!ti"e dismissal !onsists in the a!t of 7uitting 'e!ause !ontinuedemployment is rendered impossi'le unreasona'le or unli%ely as in the
!ase of an offer in"ol"ing demotion in ran% and a diminution in
pay. $ased on this definition the N(RC !on!luded that sin!e
respondent neither resigned nor a'andoned his +o' and the fa!t that
respondent pursued his reinstatement negate !onstru!ti"e dismissal.
hat ma%es this !on!lusion tenuous is the fa!t that !onstru!ti"e
dismissal does not always in"ol"e forthright dismissal or diminution in
ran% !ompensation 'enefit and pri"ileges. &here may 'e !onstru!ti"e
dismissal if an a!t of !lear dis!rimination insensi'ility or disdain 'y an
employer 'e!omes so un'eara'le on the part of the employee that it
!ould fore!lose any !hoi!e 'y him e3!ept to forego his !ontinued
employment.
1. ROTAS
#8I(I##INE JE&ERANS $ANP JS N(RC G.R. No. 1= )ar!h
=1
*a!ts6
Respondent $enigno )artine4 was the manager of petitioner
#hilippine Jeterans $an% Dumaguete $ran!h from Septem'er 1 =1
until Fanuary = the latter 'eing the date when his supposed
resignation from petitioner 'an% 'e!ame effe!ti"e. Respondent !laimed
that his resignation stemmed from a report pu'lished 'y the #hilippine
Daily In7uirer regarding the anomalies hounding petitioner-s high,
ran%ing offi!ials. A!!ordingly this !ontro"ersy resulted in huge
withdrawals of ma+or depositors. Con!erned respondent )artine4
approa!hed )r. ilfredo S. AniQon petitioner-s Area 8ead for Jisayas
and )indanao to dis!uss how to resol"e the matter. hen )r. AniQon
+ust 'rushed off the issue respondent re7uested the )ayor of Jalen!ia
9a %nown 'ig depositor of the Dumaguete $ran!h; to tal% to )r. AniQon.
&he latter misinterpreted the respondent-s a!tions and angrily
!onfronted him the ne3t dayand told him that he would 'e repla!ed in
his position as manager.
On O!to'er 1 == )r. AniQon went to the Dumaguete
$ran!h and 'rought along with him respondent-s repla!ement. )r. AniQon then instru!ted the respondent togo to the petitioner-s head
offi!e in )a%ati to report to )r. Fose D. (loren Fr. the Ji!e #resident
and 8ead of $ran!h $an%ing Di"ision. Respondent )artine4 flew to
)anila and reported to the )a%ati Offi!e where he was told 'y )r.
(loren that he would undergo training. 8owe"er no su!h training too%
pla!e. Instead he was made to do !leri!al +o's. Respondent lamented
that he had to tra"el at least hours daily from his rented house in
Ca"ite to )a%ati and as a !onse7uen!e thereof his tra"el and li"ing
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e3penses !onsumed at least half of his salary. On Fanuary =
respondent tendered his resignation 'e!ause it was so e3pensi"e for
him to 'e staying away from his family.
Issue6 ON respondent was !onstru!ti"ely dismissed
8eld6
In !onstru!ti"e dismissal !ases the employer has the 'urden of pro"ing that its !ondu!t and a!tion or the transfer of an employee are
for "alid and legitimate grounds su!h as genuine 'usiness ne!essity.
#arti!ularly for a transfer not to 'e !onsidered a !onstru!ti"e dismissal
the employer must 'e a'le to show that su!h transfer is not
unreasona'le in!on"enient or pre+udi!ial to the employee.
*ailure of the employer to o"er!ome this 'urden of proof taints
the employee-s transfer as a !onstru!ti"e dismissal. In the present
!ase the petitioner failed to dis!harge this 'urden. &he N(RC as
affirmed 'y the CA !orre!tly found that the !om'ination of the harsh
a!tions of the petitioner rendered the employment !ondition of
respondent hostile and un'eara'le for the following reasons6
First, the petitioner failed to show any urgen!y or genuine
'usiness ne!essity to transfer the respondent to the )a%ati 8ead
Offi!e. In fa!t the respondent showed the a!tual moti"ation and the
'ad faith 'ehind his transfer.
Second the respondent>s transfer from Dumaguete to )a%atiCity is !learly unreasona'le in!on"enient and oppressi"e sin!e the
respondent and his family are residents of Dumaguete City.
Third the petitioner failed to present any "alid reason why it had
to re7uire the respondent to go to )a%ati 8ead Offi!e to undergo
'ran!h head training when it !ould ha"e +ust easily re7uired the latter to
underta%e the same training in the JIS)IN area.
Finally there was nothing in the order of transfer as to what
position the respondent would o!!upy after his training0 the respondent
was effe!ti"ely pla!ed in a ?floating@ status.
&he test of !onstru!ti"e dismissal is whether a reasona'le
person in the employee>s position would ha"e felt !ompelled to gi"e up
his position under the !ir!umstan!es. $ased on the fa!tual
!onsiderations in the present !ase we hold that the hostile andunreasona'le wor%ing !onditions of the petitioner +ustified the finding of
the N(RC and the CA that respondent was !onstru!ti"ely dismissed.
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1. RIJERA
*ES&
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&hey argued that it should 'e filed with the N(RC in )anila not with the
Offi!e of the (a'or Ar'iter in &uguegarao City Cagayan and that the
a!tion should 'e against estmont Samaniego>s employer.
&he (a'or Ar'iter denied the motion to dismiss Citing Se!tion
1 Rule IJ of the N(RC Rules and #ro!edure allowing the (a'or Ar'iter
to order a !hange of "enue in meritous !ases he then set the !ase for
preliminary !onferen!e during whi!h the petitioners e3pressly reser"ed
their right to !ontest the order denying motion to dismiss.#etitioners filed with the N(RC an Hrgent #etition to Change or
&ransfer Jenue. &hey also filed to suspend pro!eedings in "iew of the
penden!y of their petition.
&he (a'or Ar'iter issued an order dire!ting parties to su'mit
their respe!ti"e papers and supporting do!uments within = days from
noti!e after whi!h the !ase shall 'e su'mitted for de!ision.
&he N(RC a!ting on the petition to !hange "enue ordered the
(a'or Ar'iter to forward the re!ords of the !ase. &he (a'or Ar'iter
retained a !omplete dupli!ate original !opies of the re!ords and set the
!ase for hearing. &hey petitioners filed a motion for !an!ellation of the
hearings 'e!ause their petition for !hange of "enue has remained
unresol"ed. &hey did not su'mit their position papers and did not attend
hearing thus the (a'or Ar'iter !onsidered the !ase su'mitted for
De!ision 'ased on the re!ords and the e"iden!e su'mitted 'y
Samaniego and rendered a de!ision finding that Samaniego is illegally
and un+ustly dismissed !onstru!ti"ely.
#etitioners appeal to the N(RC. &he N(RC dismissed the
petition for !hange of "enue 'e!ause when the !ause of a!tion arouse
Samaniego>s wor%pla!e in Isa'ela o"er whi!h the (a'or Ar'iter inCagayan has the +urisdi!tion. 8owe"er it de!lared the de!ision of the
N(RC null and "oid 'e!ause it !ontinued to !ondu!t further
pro!eedings despite the penden!y of the appeal,treated Hrgent #etition
for Change and estmont and Hnila' are denied due pro!ess.
$oth #arties applied for motion for re!onsideration 'ut 'oth
were denied 'y the N(RC.
8en!e this petition.
SSE
1. hether or Not Court of Appeals erred in denying their motion to
dismiss 'y reason of improper "enue.
=. hether or Not estmont and Hnila' are denied of due pro!ess.
. hether the Caourt of Appeals erred on holding that Samaniego was!onstru!ti"ely dismissed 'y estmont and Hnila'.
1EL2
&he petition to !hange or transfer "enue filed 'y herein
petitioners with the N(RC is not the proper remedy to assail the (a'or
Ar'iter>s order denying their motion to dismiss. Su!h order is merely
interlo!utory hen!e not appeala'le as pro"ided in Se!tion of the 1BB
N(RC Rules and #ro!edures.
An order denying a motion to dismiss is interlo!utory and so the proper
in su!h a !ase is to appeal after a de!ision has 'een rendered.
Assuming that the petition to !hange or transfer "enue is the
proper remedy still we find that the CA did not err in sustaining the
(a'or Ar'iter>s Order of denying the motion to dismiss 'e!ause under
the 1BB N(RC rules and pro!edure under Se!tion 1 All !ases whi!h
the (a'or Ar'iters ha"e authority to hear and de!ide may 'e filed in the
Regional Ar'itration $ran!h ha"ing +urisdi!tion o"er the wor%pla!e of
the !omplainant/petitioner. &he 7uestion of "enue essentially relates to
the trial and tou!hes more upon the !on"enien!e of the parties rather than upon the su'stan!e and merits of the !ase. Our permissi"e rules
underlying the pro"isions on "enue are intended to assure !on"enien!e
for the plaintiff and his witnesses and to promote the end of +usti!e. &his
a3iom all the more finds appli!a'ility in !ases in"ol"ing la'or and
management 'e!ause of the prin!iple paramount in our +urisdi!tion
that the State shall afford to full prote!tion of la'or.
$e!ause Samaniego>s regular pla!e of assignment was in
Isa'ela when he was transferred to )etro )anila or when the !ause of
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a!tion arose. Clearly the Appellate Court was !orre!t in Affirming the
(a'or Ar'iter>s finding that the proper "enue is in the RA$ No. II at
&uguegarao City Cagayan.
On the !ontention that estmont and Hnila' that they were
denied due pro!ess well settled is the rule that the essen!e of due
pro!ess is simply an opportunity to 'e heard or as applied to
administrati"e pro!eeding an opportunity to e3plain one>s side or an
opportunity to see% a re!onsideration of the a!tion or ruling !omplainedof. &he re7uirement of due pro!ess in la'or !ases 'efore a (a'or
Ar'iter is satisfied when the parties are gi"en the opportunity to su'mit
their position papers to whi!h they are supposed to atta!h all the
supporting do!uments or do!umentary e"iden!e that would pro"e their
respe!ti"e !laims in the e"en the (a'or Ar'iter determines that no
formal hearing would 'e !ondu!ted of that su!h hearing was not
ne!essary.
As shown 'y the re!ords the (a'or Ar'iter ga"e estmont and
Hnila' not only on!e 'ut thri!e the opportunity to su'mit their position
papers and supporting affida"its and do!uments. $ut they were
o'stinate. Clearly they were not denied their right to due pro!ess.
&o re!apitulate Samaniego !laims that upon his reassignment
and/or transfer to )etro )anila he was pla!ed on ?floating status@ and
dire!ted to perform fun!tions not related to his position. *or their
part estmont and Hnila' e3plain that his transfer is 'ased on a
sound 'usiness +udgment a management prerogati"e.
In !onstru!ti"e dismissal the employer has the 'urden of
pro"ing that the transfer of an employee is for +ust and "alid grounds
su!h as genuine 'usiness ne!essity. &he employer must 'e a'le toshow that the transfer is not unreasona'le in!on"enient or pre+udi!ial
to the employee. It must not in"ol"e a demotion in ran% or a diminution
of salary and other 'enefits. If the employer !annot o"er!ome this
'urden of proof the employee>s transfer shall 'e tantamount to
unlawful !onstru!ti"e dismissal.:2
Westmont and Unilab failed to discharge this
burden. Samaniego was unceremoniousl transferred from
!sabela to "etro "anila. We hold that such transfer is
economicall and emotionall burdensome on his part. #e was
constrained to maintain two residences $ one for himself in "etro
"anila, and the other for his famil in%uguegarao Cit,
Cagaan. Worse, immediatel after his transfer to "etro "anila,
he was placed &on floating status' and was demoted in ran(,
performing functions no longer supervisor in nature.
&he assailed de!ision of the CA is affirmed.
1B. O(ORES
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1BB without any "alid reason neither was she gi"en any noti!e and
hearing.
In De!em'er of 1BB respondent filed a !ase for illegal
dismissal against petitioner. #etitioner !ountered that respondent was
not dismissed0 rather she was the one who se"ered her !onne!tion
with petitioner 'y her "oluntary and une7ui"o!al a!ts. &he (a'or
Ar'iter N(RC and Court of Appeals all ruled in fa"or of respondent.
ISSHE6 ON respondent was illegally dismissed 'y petitioner.
8E(D6
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Respondent is a se!urity guard in the Calam'a plant for 1
years for petitioner !ompany. &wo in!idents happened that lead to his
dismissal. *irst was when he failed to inspe!t a "an 'efore lea"ing the
plant whi!h was his duty and a !ompany poli!y. Se!ond was when he
allowed a "an to lea"e the plant without a tarpaulin !o"er thus
endangering the 7uality of the goods of the petitioner. #etitioners
!ontend that Daniel is guilty of deli'erate and wilful diso'edien!e of
!ompany rules and regulations or serious mis!ondu!t or wilful 'rea!hof trust and !onfiden!e thus respondent>s employment was
terminated. Respondent filed a !ase for illegal dismissal against Co!a,
Cola whi!h the latter denied !ommitting the same.
Issue6
1; whether a "alid !ause e3isted to +ustify the dismissal of respondent0
=; whether he is entitled to reinstatement and 'a!% wages.
Ruling6
1; None. Neither of the two infra!tions !ommitted 'y Daniel !aused
su'stanti"e loss or damage. &heir !ompany poli!y does not warrant
dismissal for su!h infra!tions. Also worth stressing are the following
fa!ts6 Daniel has ser"ed the !ompany for 1 years0 he was pre"iously
granted a s!holarship gi"en only to employees with high performan!e
ratings0 his infra!tions were minor0 and there has 'een no showing that
he a!ted in 'ad faith or with mali!e. Hnder the !ir!umstan!es there is
e"ery +ustifi!ation for tilting the s!ales of +usti!e in fa"or of the
employee.
=;
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NA&IONA( (A$OR RE(A&IONS CO))ISION AND I)E(DA SA(AAR
)ARC8 1BB=
*AC&S6
Imelda Sala4ar was employed 'y Glo'e )a!%ay Ca'le and
Radio Corporation as general systems analyst also employed 'y
petitioner as manager for te!hni!al operations support was
DelfinSaldi"ar with whom Imelda was allegedly "ery !lose. Sometime in1BB prompted 'y reports that !ompany e7uipment and spare parts
worth thousands of dollars under the !ustody of Saldi"ar were missing
!aused the in"estigation of the latter>s a!ti"ities. &he report prepared 'y
!ompany>s internal auditor )r Agustin )aramara indi!ated that
Saldi"ar had entered into a partnership styled Con!a"e Commer!ial
and Industrial Company with Ri!hard s in"estigation that Imelda Sala4ar "iolated !ompany
regulations 'y in"ol"ing herself in transa!tions !onfli!ting with the
!ompany>s interests. E"iden!e showed that she signed as a witness to
the arti!les of partnership 'etween
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=5. )AR&IN
2S& 1O&EL NBBO# :etitioner# vs. RENA&O ON&ON#
Respon+ent.
*AC&S
On No"em'er =1 1BB respondent Renato ). Gat'onton was
hired as Chief Steward in petitioner Dusit 8otel Ni%%o>s *ood and
$e"erage Department. 8e signed a three,month pro'ationary
employment !ontra!t until *e'ruary =1 1BBB with a monthly salary of
#=5. At the start of his employment the standards 'y whi!h he
would 'e assessed to 7ualify for regular employment were e3plained to
him.
&he hotel alleged that at the end of the pro'ation period Ingo
Rau'er Dire!tor of its *ood and $e"erage Department o'ser"ed that
Gat'onton failed to meet the 7ualifi!ation standards for Chief Steward
and Rau'er re!ommended a two,month e3tension of Gat'onton>s
pro'ationary period or until April == 1BBB. At the end of the th month
on )ar!h = 1BBB Rau'er informed Gat'onton that the latter had poor ratings on staff super"ision produ!ti"ity 7uantity of wor% and o"erall
effi!ien!y and did not 7ualify as Chief Steward. Gat'onton re7uested
another month or until April == 1BBB to impro"e his performan!e to
whi!h Rau'er agreed 'ut allegedly refused to sign the #erforman!e
E"aluation *orm. Neither did he sign the )emorandum on the
e3tension.
On )ar!h 1 1BBB a noti!e of termination of pro'ationary
employment effe!ti"e April B 1BBB on the a'o"e alleged grounds was
ser"ed on Gat'onton. On April 1= 1BBB he filed a !omplaint for illegal
dismissal and non,payment of wages with prayers for reinstatement
full 'a!%wages and damages in!luding attorney>s fees.
ISSHE
hether or not respondent was a regular employee at the time
of his dismissal.
8E(D
&he SC held that as Arti!le =1 !learly states a pro'ationary
employee !an 'e legally terminated either6 91; for a +ust !ause0 or 9=;
when the employee fails to 7ualify as a regular employee in a!!ordan!e
with the reasona'le standards made %nown to him 'y the employer at
the start of the employment. Nonetheless the power of the employer to
terminate an employee on pro'ation is not without limitations. *irst this
power must 'e e3er!ised in a!!ordan!e with the spe!ifi! re7uirements
of the !ontra!t. Se!ond the dissatisfa!tion on the part of the employer
must 'e real and in good faith not feigned so as to !ir!um"ent the
!ontra!t or the law0 and third there must 'e no unlawful dis!rimination
in the dismissal. In termination !ases the 'urden of pro"ing +ust or
"alid !ause for dismissing an employee rests on the employer.
8ere the petitioner did not present proof that the respondent
was e"aluated from No"em'er =1 1BB to *e'ruary =1 1BBB nor that
his pro'ationary employment was "alidly e3tended. &he petitioner alleged that at the end of the respondent>s three,month pro'ationary
employment Rau'er re!ommended that the period 'e e3tended for two
months sin!e respondent Gat'onton was not yet ready for regular
employment. &he petitioner presented a #ersonnel A!tion *orm
!ontaining the re!ommendation. e o'ser"ed howe"er that this
do!ument was prepared on )ar!h 1 1BBB the end of the th month
of the respondent>s employment. In fa!t the re!ommended a!tion was
termination of pro'ationary employment effe!ti"e April B 1BBB and not
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e3tension of pro'ation period. Hpon appeal to the N(RC the petitioner
presented another #ersonnel A!tion *orm prepared on )ar!h = 1BBB
showing that the respondent>s pro'ationary employment was e3tended
for two months effe!ti"e *e'ruary = 1BBB.
&he #ersonnel A!tion *orm dated )ar!h = 1BBB !ontained the
following remar%s6 ?su'+e!t to undergo e3tension of pro'ation for two