LAB CASES 2 (1).docx

8/17/2019 LAB CASES 2 (1).docx

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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


18/42

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.@

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19/42

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.

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20/42

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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24/42

*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


25/42

" &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.

25

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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.

26


27/42

1:. A(O&A

8


28/42

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

28


29/42

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.

29


30/42

1. RIJERA

*ES&


31/42

&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

32

http://sc.judiciary.gov.ph/jurisprudence/2006/feb2006/G.R.%20Nos.%20146653-54.htm#_ftn7http://sc.judiciary.gov.ph/jurisprudence/2006/feb2006/G.R.%20Nos.%20146653-54.htm#_ftn7


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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

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