Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

ATTY. VIRGILIO R. GARCIA,

Complainant,
-

versus -

NLRC NCR -30-07-02787-00

EASTERN TELECOMMUNICATIONS
PHILIPPINES, INC. AND
ATTY. SALVADOR HIZON,
Respondents.
x------------------------------------------------x
DECISION
On July 11, 2000, herein complainant Atty. Virgilio R. Garcia, aggrieved by the
termination/preventive suspension filed a complaint against herein respondents ETPI and Atty.
Salvador C. Hizon for Illegal dismissal, illegal preventive suspension, and illegal constructive
dismissal with prayer for reinstatement, backwages, moral and exemplary damages.
The Notice of Termination signed by respondent Atty. Salvador C. Hizon, dated April 14,
2000, stated among others that:
x x x please be advised that your employment with Eastern Telecommunications
Philippines, Inc. is hereby terminated effective 16 April 2000.
This case was originally raffled/assigned to the Office of LA P. Libo-on.
There being no settlement arrived at between the parties during the conciliation meetings,
they were directed to submit their respective Position Papers. The parties went further to submit
their respective Replies and Rejoinders. Only the respondent filed a Sur-rejoinder. However,
thereafter on April 5, 2001 the complainant filed a Motion to Inhibit on the ground that the Labor
Arbiter is a fraternity brother of respondent Hizon and of his lawyer. On May 10, 2001,
complainant filed a Second Motion to Inhibit reiterating his prayer for the labor arbiter to inhibit
himself. On May 22, 2001, respondents filed Opposition to the Motion to Inhibit citing that the
reason relied upon is not among those provided under the law and that LA Libo-on can
objectively decide the case as in a previous case where another fraternity brother was involved.
On June 13, 2001, Arbiter Libo-on issued an Order denying the Motion to Inhibit for lack
of merit which prompted the complainant to file an appeal. On December 20, 2001, the Second

Division came out with a Resolution setting aside the Order of Arbiter Libo-on. The respondent
filed a Motion for Reconsideration which was denied by the Commission on March 26, 2002.
The case was then re-raffled and was assigned to the undersigned Labor Arbiter. Immediately
upon receipt of the records, this Office set the case for hearing/conference on July 8, 2002 at
10:00 in the morning. On said date, the respondent was represented by Atty. Laaly Ortilla while
complainant was represented by Atty. Samuel Alentaje. This Office floated settlement. The
complainant stood firm on his proposal for settlement which is reinstatement with full
backwages and damages for his mental anguish, sleepless night and besmirched reputation.
However, the same was not acceptable to the respondents. Being the case, and without prejudice
to settlement as the same can be had at any stage of the proceedings, the parties were directed to
submit their respective Memoranda on July 12, 2002. On the date set for the submission of the
parties respective memoranda, the complainant promptly submitted the said pleading. On the
other hand, respondents requested for additional time or up to July 22, 2002 within which to
submit their Memorandum. This office, in the interest of substantial justice, granted respondents
request and on July 22, 2002 respondents submitted their Memorandum with a reservation to file
a Reply Memorandum. This office is of the opinion that a Memorandum is considered to be the
last pleading that the parties may file in a given case. However, again in the higher interest of
justice, respondents request to file Reply Memorandum, respondents raised for the first time a
new issue which is jurisdiction.
This office goes now to the allegations of the parties.
The complainant, in his position paper, alleged among others, that: On January 18, 2000,
he was illegally placed on preventive suspension pursuant to the Companys Policy on Sexual
Harassment. He argued that at that time there was no formal complaint filed against him, hence
the preventive suspension is illegal. Complainant further alleged that the preventive suspension
was extended twice or for a total of ninety (90) days thus making the preventive suspension
indefinite which amounts to illegal constructive dismissal.
On April 16, 2000, complainants employment was terminated. He alleged that his
termination was without just cause considering that the ground relied upon was based upon
fabricated allegations and that he was being eased out of the company by no less than the
president of the company for exposing the presidents alleged amorous relationship with the
assistant of complainant, Emma Cruz.

At the time when he was illegally dismissed from the service he was the Vice President
for Human Resources and Business Support Services Departments of respondents company. He
was receiving monthly salary of P150,000.00 including tax shields and other allowances.
On the other hand, respondents in their position paper averred among others. That
complainant was investigated for three (3) complaints for sexual harassment filed by Atty.
Larrie, Emma Cruz and Dr. Mercedita Macalintal. Respondents further alleged that contrary to
the allegations of complainant there were already two formal complaints filed against him by
Atty. Larrie Alinsunurin on October 25, 1999 and by Dr. Macalintal on January 13, 2000 at the
time that he was placed under preventive suspension. And, that the extensions of his preventive
suspension were necessitated by the fact that there three (3) complaints against him.
Respondents maintain that complainant was duly notified of the charge and afforded the
opportunity to defend himself and as a matter of fact submitted his counter affidavits to the
complaints and attended at least two clarificatory sessions. Respondents insist that there is more
than substantial and credible evidence to support the conclusion of the Committee on Decorum
that complainant Garcia was guilty of violating the ETPI Policy on Sexual Harassment.
It appears from the record that although complainant was investigated for three (3)
complaints for sexual harassment, he was terminated only on the basis of the complaint of Dr.
Macalintal who alleged that sometime on December 1998 she had a business lunch with Atty.
Garcia who, to her discomfort, talked merely of matters not related to company business or her
profession. She also alleged that thereafter, Atty. Garcia, on several occasions invited her to
lunch or dinner but she would refuse. And, that in order to pressure her to accept his invitations
he denied her bonus in December of 1999. According to respondents the repeated attempts of
Atty. Garcia to invite Dr. Macalintal to lunch or dinner were clearly established by the affidavit
of Ms. Erla Ticsay, the company nurse, who testified that On at least two other occasions, Atty.
Virgil Garcia again requested me to page Dr. Mercedita Macalintal through her beeper to call
him up at the office to initialize the lunch meeting.
In his Memorandum, complainant alleged that respondent Hizon lied to this Office when
he said that there were already two formal complaints for sexual harassment at the time when he
was placed under preventive suspension. To prove his point, he presented the Confidential e-mail
report of Mr. Arnel Reyel, Senior Vice President for Corporate Support to show that the
complaint of Atty. Alinsunurin was merely resurrected, as follows:

With regard to the complaint formally filed by a former employee, Atty. Larrie
Alinsunurin on sexual harassment charges against Atty. Virgilio Garcia, VP BSS and
OIC for HR, the undersigned has been tasked by the Board of Directors thru Atty. S.C.
Hizon, President/CEO of ETPI to conduct the investigation and report his findings and
recommendation to the subject complaint. Company sexual harassment policy calls for a
formation of a committee composed of one representative each from management, the
union, the supervisory rank, and from the non-management.
The initial complaint of sexual harassment comes from an allegedly offensive email sent since February 1999. The undersigned was reminded of the joke with sexual
undertones and was also included in the mail list. Mr. Garcia told me that that was the
first and last time she was included in the mail list and that she was inadvertently
included among a list of male employees. Since then Mr. Garcia has not sent her any
similar e-mails. Formalizing the complaint months later and particularly after she was
served notice of termination would show her reaction to the termination notice. The letter
of Ms. Alinsunurin to the Board of Directors of ETPI does not alleged any other
unwanted behavior Mr. Garcia has done to her other than unproven statements that Mr.
Garcia is known to have been making physical advances towards other female employees
of the company.
On October 28, 1999, Ms. Alinsunurin has signed quitclaim papers with the
company where she was given her last pay and settlement papers as her condition to
signing the quitclaim. She was to immediately vacate her office the following day as part
of the settlement. Mr. Garcia has given instructions to security officers to oversee this.
Ms. Alinsunurin was obviously upset. Investigation revealed that it was Ms. Alinsunurin
provoking them. The undersigned intervened to have his secretary instead oversee the
vacating of the premises rather than security guards employed for this. On that day the
officers of the company were out of town having its strategic planning session in Batulao,
Batangas from where Mr. Garcia and the undersigned where informed of this incident.
Despite our intervention, Ms. Alinsunurin lodged this second complaint.
I have reviewed this case against company policy on sexual harassment issued
January 9, 1999.
On the first complaint I dont find any sexual harassment offense after Mr. Garcia
stopped sending her any similar e-mails since. Ms. Alinsunurin never told Mr. Garcia
that she found it offensive and that she should be taken off his addressee list. According
to Mr. Garcia, that was only the first and last time that she was sent such green joke email.
On the second complaint of security guard harassing her, the latter were
courteously doing their job after a quitclaim has been signed between Ms. Alinsunurin
and the undersigned to finally settle each others accountabilities and claims. As part of
the settlement, she was to vacate her offices the following day. I also do not find any
basis for harassment and sanctions against Mr. Garcia.
To the Board of Directors of ETPI I recommend that we put this matter to a
close.
Complainant likewise presented the affidavit of Roderick Collado who testified on what
Dr. Macalintal narrated to him, as follows:

2. On February 17, 2000, between the hours of 8:00 and 10:00 in the morning, I
went to the clinic to see Dr. M. Macalintal to secure a medical clearance to return to
work as I was sick previous to that date.
3. After asking me questions about my general health condition, she asked how we
are doing at BSS to which replied that we are of course business as usual, and then she
initiated the conversation concerning the case of Atty. Garcia.
4. Dr. Macalintal said that it did not occur to her that her complaint would get
this far and would grow to this magnitude. She was expecting that her complaint against
Atty. Garcia will be treated in the same manner as her complaint against Atty. Tuason
where they just had a closed door meeting (Atty. Tuason, Atty. Guttierez, and herself) and
the problem was already resolved. She was not expecting her complaint against Atty.
Garcia will be exploited as ground for sexual harassment.
5. She clarified that her complaint was really just to get her bonus, and not for
sexual harassment. She said she never thought that her complaint can be classified as
sexual harassment. She added that she did not even know that there was such a policy.
She continued to tell me that she cried when she heard that Atty. Garcia was suspended.
She told me that she cried out of pity for Atty. Garcia.
6. She did not expect that they will suspend Atty. Garcia and that her complaint
will be exploited and blown out of proportion. She also said and the when the ball
started rolling, it came to a point when it was beyond my power to stop it.
7. I was wondering why she was telling me all these things despite the fact that I
was not asking for them nor was I encouraging her to talk about it. She gave me the
impression the she was feeling guilty about what has happened to Atty. Garcia.
Complainant also reiterated his allegations that he was not afforded the opportunity to
cross-examine the witnesses of the respondents namely: Erla Ticsay, Elizabeth Nepomuceno,
and Nicandro Marcelo. He claims their testimonies were twisted and not in their own words and
that if he were allowed to do so he would have been able to clarify the matters covered in their
affidavits.
For their part, the respondents reproduced in their Memorandum their allegations in the
Position Paper. But raised a new issue in their Reply Memorandum where they alleged for the
first time that complainant is a corporate officer and therefore this Office has no jurisdiction over
the subject matter. To support its position, respondents attached the By-Laws of the Corporation
which enumerates the officers as follows: Chairman, President, Vice-President, Treasurer, and
Secretary.
Hence, this case.
The issues for resolution are:

1. Whether or not complainant is a corporate Officer of respondent Eastern

Telecommunications Philippines, Inc. and therefore this Office would not have jurisdiction to
decide the present case.
2. Whether or not the herein complaint was legally placed under preventive suspension
3. Whether or not the extensions of the preventive suspension are legal
4. Whether or not complainants subsequent dismissal is legal, and
5. Whether or not complainant is entitled to reinstatement, backwages, Moral and
Exemplary damages.
Anent the first issue
After a careful perusal of the pleadings and documents submitted by the parties as well as
the arguments raised by them, this Office strongly believes that complainant is not a corporate
officer of the corporation.
Hence, the National Labor Relations Commission has jurisdiction over the instant case.
In their Reply Memorandum, respondents additionally alleged that this Office does not
have jurisdiction considering that complaint is a corporate officer being a Vice President, a
position listed in the By-Laws of the respondent company as one of the officers of the
corporation. According to the respondents, the controversy involves an intra corporate dispute
cognizable by the regular courts.
This Office does not agree by this argument and bases its conclusions from the evidence
on record and from the fact that respondents themselves treated complaint as an ordinary
employee and not as an officer of the company. This Office takes notice of the fact that
complainant was not dismissed pursuant to Section 3, Article V of the By-Laws of the
Corporation which states that Any officer may be removed, either with or without cause, by a
vote of the Board of Directors. There is no evidence on record of such vote of the Board of
Directors being taken. Neither does the same By-Laws of the Corporation provide for any other
means of removing corporate officers other than Section 3 above.
This observation, taken together with the Notice of Termination signed by respondent
Atty. Hizon as President of the corporation where he stated in part: x x x, please be advised that

your employment with Eastern Telecommunications Philippines, Inc. is hereby terminated

effective 16 April 2000. very clearly shows that complainant is a mere employee and not an
officer of the corporation as the respondents wanted to impress. (See Annex GG of Attachment
A of the Respondents Position Paper dated 09 October 2000). (Understanding supplied).
Besides, the Notice of Termination itself speaks of employment instead of a term of office
that properly pertains to an officer of a corporation.
Moreover, if indeed complainant is a corporate officer, this fact should have been alleged
by the respondents at the very first opportunity such being the case obtaining at the time. It
appears like an afterthought, a desperate move to defeat the cause of the complainant after he
successfully pointed out serious inconsistencies in the evidence used to dismiss him from the
service in his Memorandum. Hence, respondents Reply Memorandum.
In the case of Bayoca vs. Nogales, 340 SCRA 154 (September 12, 2000), it was held that
While it is a rule that jurisdictional questions may be raised at any time, an exception arises
where estopple has supervened, as in this case. In a string of cases the Supreme Court declared
that the question of whether Labor Arbiters or the National Labor Relations Commission have
jurisdiction over the labor controversy must be raised at the earliest opportunity (Marquez vs.
Sec. Of Labor, 171 SCRA 337 ; Carillo vs. Allied Workers Association of the Philippines, 24
SCRA 566: Tijan vs. Sibonghanoy, 23 SCRA 29; Maneja vs. Sec. of Labor, 290 SCRA 603).
The active participation of a party against whom an action was brought, coupled with
his failure to object to the jurisdiction of the court or quasi-judicial body where the action is
pending, is tantamount to in an invocation of that jurisdiction and a willingness to abide by the
resolution of the case and will bar said party from later on impugning the court or bodys
jurisdiction. (ABS-CBN Supervisors Employee Union Members vs. ABS-CBN Broadcasting
Corporation, 304 SCRA 489, March 11, 1999).
In the case of Maneja vs. NLRC, 290 SCRA 603 and of Marquez vs. NLRC, 171 SCRA
337, the Supreme Court ruled A reading of the above-quoted statements may give the
impression that the doctrine applies to the plaintiff or to the party who, by bringing the action,
initially invoked but later repudiated the jurisdiction of the court. But while the rule has been
applied to stop the plaintiff from raising the issue of jurisdiction. The active participation of the
party against whom the action was brought, coupled with his failure to object to the jurisdiction

of the court or quasi judicial body where the action is pending, is tantamount to an invocation of
that jurisdiction and a willingness to abide by the resolution of the case and will bar said party
from later on impugning the courts or bodys jurisdiction.
In Salva vs. Court of Appeals, 304 SCRA 632 (March 11, 1999), the Supreme Court
emphatically declared that Public Policy dictates that this Court must strongly condemn and
double-dealing by parties who are disposed to trifle with the courts by taking inconsistent
positions, in utter disregard of elementary principles of right dealing and good faith. This applies
not only to parties who are plaintiffs, complainants or others who initiated the case by actually
filing the action, but also to parties who are defendants or respondents, if the latter fail to timely
raise the jurisdiction issue and instead actively participate in the proceedings.
Were we to sanction such conduct on its part, we would in effect be declaring as useless
all the proceedings had in the present case since it was commenced and compelled the parties to
go up their Calvary once more. The inequity and unfairness of this is not only patent but
revolting. (Carillo vs. Allied Workers Association of the Philippines, 24 SCRA 566).
While the respondents could have prevented this Office from exercising jurisdiction over
the case by seasonably taking exception thereto, they instead invoked the very same jurisdiction
by filing their Position Paper and even vigorously opposed the Motion to Inhibit filed by
complainant against the former arbiter where this case was previously assigned. What is more,
they actively participated in the proceedings by filing other pleadings such as Reply to
Complainants Position Paper, Rejoinder, Sur-Rejoinder, and Memorandum. In all these
pleadings respondents never objected and in fact remained silent on the issue of jurisdiction. All
in all, the entire proceedings in this Office alone took more than two years. In respondents
Opposition to the Motion to Inhibit, they insisted on the competence of the former arbiter to
decide the case objectively and thus, undoubtedly, sustained the jurisdiction of this Office to
resolve the controversy between complainant and respondents. Under this premise, and under the
ruling laid down in the case of Royales vs. Intermediate Appellate Court, 127 SCRA 470,
respondents cannot now be allowed belatedly to adopt an inconsistent posture by attacking the
jurisdiction of this Office to which they had submitted themselves voluntarily.
In relation to this, this Office also notes that respondents were even quick to alleged lack
of non-forum shopping in order to have the complainant dismissed at the outset even when

jurisprudence abounds that substantial compliance to the requirement on non-forum shopping is

sufficient. (Loyola vs. Court of Appeals, 245 SCRA 477; Maricalum Mining Corp. vs. NLRC
298 SCRA 378; Kavinta vs. Castillo, 249 SCRA 604; Bernardo vs. NLRC, 255 SCRA 108;
Gabionsa vs. NLRC, 192). The record shows that complainant compiled with this requirement in
his Reply to Respondents Position Paper.
In the case of Loyola vs. CA, 245 SCRA 477, the Supreme Court ruled that Circular No.
28-91 was designed to serve as an instrument to promote and facilitate the orderly administration
of justice and should not be interpreted with such absolute literalness as to subvert its own
ultimate and legitimate objective or the goal of rules procedure which is to achieve substantial
justice as expeditiously as possible.
The fact that the Circular requires that it be strictly compiled with merely underscores its
mandatory nature in that it cannot be dispensed with or its requirements altogether disregarded
but it does not thereby interdict substantial compliance with its provision under justifiable
circumstances. (Loyola vs. NLRC, 245 SCRA 477).
Anent the second issue
As this office went over piece by piece, the documents submitted by the parties and the
arguments raised by them to support their respective Position Papers, this Office finds for the
complainant
To start with, complainant was placed under preventive suspension in the absence of a
formal complaint that is mandated in the very same policy that complainant allegedly violated.
The Policy clearly requires the filing of a formal complaint before a respondent be placed under
preventive suspension and after a determination that there are strong reasons to believe that the
respondent is guilty of charges which would warrant his/her removal from the service. The
Policy requires no particular form but the complaint must be in writing, signed and sworn by the
complainant and must contain the name of the complainant, name of the respondent, a
specification of the charges, and a brief statement of the relevant and material facts.
This Office finds and so holds that from that moment on there is a real threat of
complainant losing his job. After the first and initial stage of getting the complainant out of the
company, the succeeding steps to deprive him of his means of livelihood should be easy. The

threat of losing ones job cannot be more real than be placed under preventive suspension for no
justifiable cause whatsoever, and for an indefinite period of time, as in this case.
Anent the third issue
And this Office finds this especially true when this Office considers the successive
extensions of his preventive suspension which are all in violation of another specific mandate of
the same Policy. The subject policy provides that the maximum period that a respondent therein
can be placed under preventive suspension is thirty (30) days except only when the respondent
himself is responsible for delaying the proceedings. In such case, the period of delay shall not be
counted in computing the period of suspensions. There is however no such allegation in this
case. Such extensions amounted to an indefinite illegal suspension tantamount to constructive
illegal dismissal. (Pepsi Cola Distributors of the Philippines, Inc. vs. NLRC et al. 272 SCRA
267; Alcantara & Sons, Inc. vs. NLRC, G.R. No. 72531, January 5, 1994; Premiere Development
Bank et al vs. NLRC, G.R. No. 114695, July 23, 1998; Philippine Airlines Inc. vs. NLRC, 292
SCRA 40).
Anent the fourth issue
This office carefully reviewed the Policy on Sexual Harassment as well as the respective
complaints that were filed by the three (3) female employees against complainant herein. And
after painstakingly going over the voluminous record to examine the testimonies of the witnesses
that were submitted as evidence for the respective parties, this Office concludes that
complainants right to security of tenure had been grossly violated.
Respondents argue that complainant was afforded due process and he was afforded with
the opportunity to be heard and to adduce evidence in his behalf. No doubt that the complainant
was afforded due process but when this Office looks at this case in its entirety, this argument
fails to persuade.
In illegal dismissal case, the issue is not so much the presence of the process but whether
or not complainant was dismissed for a just or authorized caused under the Labor Code (Pioneer
Texturizing Corp. vs. NLRC, 280 SCRA 806). In the determination of this issue, this Office shall
use every and all reasonable means to ascertain the facts and to determine the truth so that justice
can be rationally and fairly dispensed with. It has certain latitude to examine the existence of just

or authorized caused and whether or not the employee was indeed given a fair chance to really
defend himself from his/her powerful employer who has all the resources within its reach. It is
not unusual that some employers, in their desire to get rid of an employee even in the absence of
just or authorized cause and avoid the liabilities under the law, will attempt to cover their tracks
with something that is legal or compliance with some legal provision
Firstly, the following circumstances, which are very clear from the record when taken
together reveals a sustained and determined effort to oust the complainant from his position and
eventually deprive him of his only means of livelihood:
1.

Complainant was unceremoniously placed under preventive suspension without

just cause on January 18, 2000. This is supported by complainants letter to the Board of
Directors of the respondent company (Annex F of the Complaint, dated January 20, 2000)
reiterating his vehement protest for having been hastily placed under preventive suspension even
in the absence of a formal complaint. To cover up the injustice, respondents later alleged that at
the time of complainants preventive suspension there were two formal complaints for sexual
harassment.
2.

The subsequent extensions of the preventive suspension which is against the clear

mandate of the subject Policy. The respondents tried to justify these extensions by arguing that
complainant was being sued simultaneously for three (3) complaints for sexual harassment but
the record show that only the complaint of Dr. Macalintal was disposed of despite the extended
periods.
3.

The revival of the complaint of Atty. Alinsunurin which has previously been

considered a closed case. This office gives credence to the recommendation of Mr. Arnel
Reyel, Vice President for Corporate Support Group of respondent ETPI dated November 29,
1999 (Annex A of the Reply to Respondents Position Paper). This Office believes that if he
were not so authorized to conduct the investigation, he would not have submitted the report. This
Office also adopts his finding that the complaints of Atty. Alinsunurin dated October 25, 1999
and November 12, 1999 were both filed (see the hard copy) retaliation for her termination from
work. These complaints were no longer in issue at the time that complainant was placed under
preventive suspension.

4.

The fact that this particular recommendation of Mr. Reyel did not form part of the

voluminous documentary evidence of the respondents despite its materiality to the case. The
original copy of this recommendation is in the possession of the respondents and it can only be
fairly assumed that this was withheld because it is detrimental to their case. Especially more so
when this Office considers that the case referred to in the report is raised as an affirmative
allegation by the respondents.
5.

The marginal notation of Dr. Macalintal on page three (3) of her January 12, 2000

protest letter is not a sexual harassment complaint within the purview of the Policy on Sexual
harassment because it does not recite facts consisting sexual harassment. The fact that this is
alleged against complainant as a justification for his preventive suspension reveals a propensity
on the part of the respondents to take anything against the complainant in order to pin him down.
6.

The allegation of the existence of two formal complaints despite its absence at the

time that complainant was placed under preventive suspension is a futile attempt to justify an
obviously unjust and arbitrary action on the part of the respondents. Thus, as correctly pointed
out by the complainant in his Memorandum and this Office quotes;

Contrary to the allegations of Atty. Garcia, his preventive suspension was fully
justified considering that at the time of his suspension, there were two (2) formal
complaints against him for sexual harassment.

7.

As correctly pointed out by the complainant, and this Office agrees with him, that

respondents allegation of three (3) complaints gives a semblance of number and of a pattern that
is incriminating. This notwithstanding the fact that the complaint of Atty. Alinsunurin is merely a
resurrected case while the complaint of Emma Cruz was archived without final adjudication for
no justifiable reason. This Office views this strategy not only as unfair to the complainant but an
over kill on the part of the respondents in trying to justify the illegal dismissal of complainant
from the service.
Secondly, the failure of the respondents to refute the contention of complainant that the
affidavits of the witnesses for Dr. Macalintal were not in the own words raises serious doubts as

to the probative value of these evidence. There is more reason to disregard it especially where
complainant was not allowed to cross-examine them. Respondents merely argued that the
complainant could not pinpoint a particular law in administrative proceeding granting him the
right to cross-examine the witnesses.
Coming now to the complaint of Dr. Mercedita Macalintal. This Office entertains serious
doubts in the allegations in the complaint of Dr. Macalintal, under which complainant was
charged, tried and dismissed, when this Office considers the timing of the filing of her complaint.
Not only was this filed after she received an unfavorable action on the part of the complainant
but more importantly only after her meeting with Atty. Hizon on January 13, 2000. This Office
does not see any sign of sexual harassment from her two (2) letters dated January 3, 2000 and
January 12, 2000 (Annexes C and C-J of Attachment A of the Respondents Position
Paper) despite the insistence of the respondents that Dr. Macalintal even hinted at being sexually
harassed. On the contrary, there is evidence on record to suggest solicitation of complaints for
sexual harassment against the complainant.
This doubt on the allegations in the complaint of Dr. Macalintal is compounded by the
testimony of Mr. Roderick Collado (Annex U of Attachment A of Respondents Position
Paper) concerning the revelation of Dr. Macalintal to him that she did not intend to file a
complaint for sexual harassment because all she wanted was to collect her bonus. This Office
takes his testimony as corroborative with the original intent of Dr. Macalintal when she filed her
protests simply to collect her bonus as evidenced by her previous letters dated January 3, 2000
and January 12, 2000 (Annexes C and C-I {not sure if C-I, see the hard copy} of
Attachment A of the Respondents Position Paper ). This Office believes that Dr. Macalintal
narrated those facts to Mr. Collado because in the process Dr. Macalintal revealed facts to Mr.
Collado that otherwise he would not be aware of like the meeting between Dr. Macalintal, Atty.
Gutierrez, and Atty. Tuason as well as the purpose of that meeting. This Office does not see any
motive on the part of Mr. Collado to lie nor will he materially gain from his testimony.
In her complaint dated February 14, 2000, Dr. Macalintal complains of the behavior of
complainant during her lunch meeting with him sometime in December of 1998 which she
perceived to be amorous in nature. While Dr. Macalintal is not limited, under our jurisprudence,
as to the time when she is expected to come out in the open with her allegations, this must not

however be immediately after receiving an unfavorable action from the person complained of, as
in this case. For while the law protects her rights to work peacefully in an environment that is
free from any form of harassment, the law protects as well the right of the respondent to a fair
trial upon a complaint that is not fabricated and ensuring that the very same evil that is sought to
be prevented under the law is not itself committed against the respondent in the case.
Herein respondents rely on the testimony of Ms. Erla Ticsay who testified that On at
least two other occasions, Atty. Virgil Garcia again requested me to page Dr. Mercedita
Macalintal through her beeper to call him up at the office to finalize the lunch meeting.
Meaning, she paged Dr. Macalintal to finalize the same lunch meeting. This is obvious from the
use of the word the referring to the lunch meeting. This must be so because it is clear from
the record that only one lunch meeting transpired between complainant and Dr. Macalintal. And
as complainant points out, these words were twisted to mean repeated invitations in order to
support the self serving assertion of Dr. Macalintal that complainant repeatedly invite her to
lunch. Other than Ms. Ticsays testimony which is quoted above, there is no other evidence to
support the allegations of Dr. Macalintal on the alleged repeated invitations.
What is sorely missing in the complaint of Dr. Macalintal, and this is material in all
sexual harassment complaints, is the allegation that she verbalized her discomfort to the
complainant with an admonition to stop what he is doing, and despite this admonition he persists
to do the acts complained of. Without this, the respondent in sexual harassment complaints
would not be put on notice that his actions produce such an effect upon the complaint. This is
really a condition sine qua non.
There is lack of objectivity on the part of the Committee on Decorum. This is evident
when this Office considers that evidence presented against complainant were either magnified or
given too much weight but at the same time trivializing evidence in favor of the complainant.
These evidences were either disregarded or not given probative value. Aside from the affidavit of
Mr. Collado that was not given probative value, the time record of Dr. Macalintal was
disregarded (Annex 4-Macalintal). What can be more telling of Dr. Macalintals past
performance than her attendance record which shows that she was a perennial late comer and
that she always knock off early. This evidence supports the position of complaint that she did not

deserve to be paid bonus and thus explain his action. More importantly, these evidences are
sufficient to exonerate complainant from the charge.
To the mind of this Office, respondents simply failed to discharge the burden of proof
and to validly justify complainants dismissal from the service. The law directs employers not to
terminate the services of employees except for a just cause under the Labor Code. Lack of Just
cause in the dismissal from the service of an employee, as in this case, renders the dismissal
illegal, despite the employers observance of procedural due process (Pioneer Texturizing Corp.
vs. NLRC, 280 SCRA 806).
There is nothing on record to show the disposition of the complaint of Emma Cruz
despite the fact that this was tried together with the complaint of Dr. Macalintal and Atty.
Alinsunurin as the evidence for the three (3) cases were simultaneously being collected. This
Office cannot think of any plausible reason why this particular complaint of Emma Cruz was not
disposed of entirely, despite its repeated mention in the pleadings of respondents, other than her
allegations were overwhelmed by evidence contrary to her allegations. This Office however
takes notice that her former direct superiors and two former colleagues did not support her claim.
The testimonies of these two (2) Vice Presidents and the unsolicited testimonies of two (2)
females colleagues are credible, consistent, corroborative and unbiased especially considering
that when these testimonies were given they were no longer employed by respondents.
For reasons stated above, this Office is of the opinion and so hold that complainant was
illegally dismissed from the service. This Office also rules that his preventive suspension is
illegal as well as the extensions thereof.
Anent the fifth issue
As extensively discussed, and as supported by evidence, complainant is entitled for (not
sure if for, see the hard copy) reinstatement and payment of backwages. Considering the
manner complainant was dismissed in such an antisocial and oppressive manner, he is entitled to
moral damages pursuant to the provision of Articles 217 and 247 of the Civil Code and to
Exemplary damages as a deterrent to others who are similarly minded.
WHEREFORE, premises all considered, judgment is hereby rendered, finding the
preventive suspension and the illegal dismissal and ordering the respondents to:

1.

Reinstate complainant to his former position without loss of seniority rights and
other benefits appurtenant to the position that complainant received prior to the
illegal dismissal;

2.

Pay complainant is backwages which for purposes of appeal is computed to

the amount of P4,200,000.00 (P150,000 x 28);

3.

Pay complainant Moral damages in the amount of P1,000,000.00 and Exemplary

damages in the amount of P500,000.00

SO ORDERED.
Quezon City, Philippines, September 30, 2002.

RAMON VALENTIN C. REYES

Labor Arbiter