Cocoland Devt v NLRC, GR# 98458

[G.R. No. 98458. July 17, 1996]; PANGANIBAN, J.:

Should an employer's determination of a certain "technology" as trade secret be
considered binding and conclusive upon the National Labor Relations
Commission? Does the alleged violation of confidentiality of the employer's
"technology" constitute just cause for termination of the erring employee? These
queries are resolved in the instant petition assailing and seeking to annul two
Resolutions dated January 15, 1991 and March 21, 1991 of public respondent National
[1]
Labor Relations Commission, in NLRC Case No. RAB 09-03-00073-89 entitled
"Jeremias Mago vs. Cocoland Development Corporation and/or Alfredo C. De la Cruz."
[2]
The first Resolution sustained the Decision dated October 25, 1989 of Labor Arbiter
Harun B. Ismael insofar as it declared private respondent's dismissal by petitioner
illegal, but modified the Decision by ordering private respondent's reinstatement along
with payment of backwages, and if reinstatement be impractical on account of strained
relations, then payment of separation pay plus, in any event, moral and exemplary
damages and attorney's fees. At the same time, said Resolution dismissed petitioner's
[3]
appeal for lack of merit. On the other hand, the second Resolution denied petitioner's
motion for reconsideration of the first Resolution.
The Antecedent Facts
In the early part of 1980, petitioner corporation, which was engaged in the
production of coffee, coconut, cacao and black pepper at its plantation in Lamitan,
Basilan, hired private respondent, an agriculturist by profession, as Field
Supervisor. His work "consisted of servicing the agricultural needs of respondent"
company at its plantation. He was compensated for days actually worked, and was offduty Sundays, rest days and holidays.
Sometime in January 1989, petitioner corporation came to know that private
respondent was engaged in extending technical services and advice to small farmers
without prior clearance from management. On account thereof, the company, through
its vice president for operations, Alfredo C. de la Cruz, issued a memorandum dated
January 12, 1989, charging private respondent with reportedly imparting company
technology in coffee propagation techniques by "rendering professional services to
outside parties without the knowledge/consent of the management", and in violation of
its policy against unauthorized disclosure of trade secrets, which violation was allegedly
a ground for termination of his services with the company. Private respondent was
further advised to immediately refrain from such consultancy activities.
In his letter-reply of January 14, 1989, private respondent stated that the report
against him was only partly true. He admitted that he accepted the invitations of small
farm owners and gave outside consultancy services at their farms in order to uplift his
standard of living and that of his men through receipt of voluntary remuneration from
these farm owners. However, he denied having violated petitioner's policy against
unauthorized disclosure of its trade secret, claiming that its technology on coffee
propagation techniques was no longer a secret as the same had been learned and
applied by outside parties or small farm owners since 1986, and he was not the first
one to provide outside consultancy services to such third parties, as this practice was
earlier started by petitioner's manager, Edgardo M. Sea.
Private respondent further contended that in 1988, a majority of the petitioner
corporation's staff, including private respondent and his men, had refused to sign a
proposed memorandum of agreement for protecting the company's "Confidentiality of
Technology", because the alleged technology was already known to outsiders. Private
respondent also asserted that he did not have to ask anyone's permission because he
and his men already knew the different techniques in the propagation and maintenance

of different crops even before they were hired by petitioner corporation; that he was not
responsible for divulging the said technology to outsiders; and that he and his men used
their rest days (Sunday) in engaging in their outside consultancy activities.
In his letter of January 26, 1989, Alfredo de la Cruz refuted private respondent's
assertions, stating that Edgardo Sea had been authorized to provide technical
assistance to small farm owners as part of petitioner's "after sales service or part of the
package when these farmers bought seeds and planting materials" from petitioner, and
that Sea never received any outside compensation for his services. Moreover, de la
Cruz emphasized that private respondent was still bound to keep confidential the
petitioner's technologies which he had access to, notwithstanding the absence of any
signed agreement to that effect.
De la Cruz further averred that, while private respondent and some of his men
"knew propagation techniques before they joined" the company, nevertheless private
respondent cannot deny that the particular "coffee propagation cuttings techniques"
were developed by FILIPRO, and private respondent was able to learn said technique
because he was sent for training in Bukidnon and subsequently trained by the
company.
It appears that de la Cruz interpreted private respondent's explanations in his
letter as a refusal to comply with petitioner's policy, so in his letter of February 12, 1989,
the former directed the latter "to explain in writing within 48 hours why the company
should not terminate (his) services for cause."
On February 14, 1989, private respondent complied with de la Cruz' order and
submitted his explanation. Obviously dissatisfied, de la Cruz on the same date advised
private respondent that his explanations were "not admissible to management" and
"(e)ffective March 14, 1989, Management x x x (will) terminate your services for loss of
trust and confidence."
Private respondent filed on March 17, 1989 a complaint against petitioner and/or
Alfredo C. de la Cruz for illegal dismissal with damages, with the Department of Labor
and Employment, Arbitration Branch No. 14, Zamboanga City. After hearing on the
merits, Labor Arbiter Harun B. Ismael rendered his Decision on October 25, 1989,
[4]
finding the dismissal "tainted with illegality." The dispositive portion of the Decision
reads:
"WHEREFORE, premises considered, judgment is hereby rendered declaring
complainant's dismissal illegal. Complainant, in lieu of reinstatement, is awarded
separation pay in the amount of Fifteen Thousand Six Hundred Pesos (P15,600.00);
backwages of Thirty-One Thousand Two Hundred Pesos (P31,200.00); and
attorney's fees of Two Thousand Three Hundred Forty Pesos (P2,340.00).
All other claims are dismissed for lack of merit.
SO ORDERED."
On November 13 and 14, 1989, petitioner and private respondent, respectively,
appealed said decision to public respondent, which thereafter issued the two (2)
assailed Resolutions; hence, this petition.
Issues
The petition charges respondent NLRC with grave abuse of discretion for
"x x x declaring that complainant Mago (private respondent) was illegally dismissed
when the 'evidence clearly show that complainant was "moonlighting" or rendering
services to outside parties(,) (thereby) imparting technology acquired from his
employment with the company" and

"x x x awarding moral and exemplary damages when the evidence extant shows that
the company did not act in bad faith, wanton or fraudulent or reckless manner, or that
the labor arbiter below did not find that the company acted in a manner by which
[5]
damages may be awarded."
Anent the first ground, petitioner argues that private respondent's dismissal was
legal because it was warranted by the evidence on record. Petitioner calls attention to
the fact that private respondent admitted providing consultancy services to small
farmers and others in return for which he received payment, which allegedly constitutes
"moonlighting". Petitioner rejects public respondent's finding that its coffee propagation
techniques can no longer be considered a trade secret because private respondent
sufficiently established by means of government published leaflets and brochures that
the techniques are already freely available to the public. Petitioner asserts that the
determination as to whether or not a certain technology is a trade secret rests solely
upon it, and that the government publications presented by private respondent merely
confirmed his "moonlighting" activity, since he charged small farm owners fees for
techniques already available from government publications. Further, petitioner refutes
public respondent's finding that private respondent's dismissal was arbitrary for lack of
a prior formal hearing; petitioner insists there was no need for a formal hearing on the
charge against private respondent because he had already been duly afforded
opportunity to explain and defend himself in writing.
On the second ground, petitioner assails respondent Commission's award of
moral and exemplary damages to private respondent, contending that the latter's
dismissal was neither tainted with bad faith nor carried out in a wanton, fraudulent, or
oppressive manner.
This Court's Ruling
We find no abuse of discretion on the part of respondent Commission in its
affirmance of the arbiter's findings, which are amply supported by the evidence on
record. However, we modify the assailed Resolutions by deleting the award of moral
and exemplary damages along with attorney's fees.
The first ground relied upon by petitioner essentially involves determining whether
or not there existed a valid company policy prohibiting disclosure by employees of
company technology and trade secrets to "outsiders", and whether or not private
respondent's actions amounted to a violation of such policy sufficient to warrant
dismissal.
The record fully supports the findings and conclusions of the arbiter that petitioner
"failed to demonstrate with clear and convincing evidence the alleged company policy
which it claimed was violated by the complainant (private respondent)," and that in any
event, even assuming that there was such company policy prohibiting its employees
from transferring technological knowledge to third parties, the so-called technology was
hardly a 'trade secret' since private respondent had established convincingly via
competent evidence that the various propagation techniques claimed by petitioner as
its trade secret were readily available to the public.
It is axiomatic that findings of facts made by labor arbiters and affirmed by the
National Labor Relations Commission are entitled to great respect and even finality,
[6]
and are considered binding on this Court.
Who determines what is trade secret?
Petitioner's naked contention that its own determination of what constitutes a
trade secret should be binding and conclusive upon public respondent is erroneous and
dangerous, and deserves the barest consideration. As prudently observed by the
Solicitor General, such a stand is contrary to the State's policy of affording protection

to labor. Sustaining such contention would permit an employer to label almost anything
a trade secret, and thereby create a weapon with which he/it may arbitrarily dismiss an
employee on the pre-text that the latter somehow disclosed a trade secret, even if in
fact there be none at all to speak of. Any determination by management as to the
confidential nature of technologies, processes, formulae or other so-called trade
secrets must have a substantial factual basis which can pass judicial scrutiny. This is
but an ineludible corollary of the time-tested principle that "(t)he rules, instructions or
commands in order to be a ground for discharge on the score of disobedience, must
be reasonable and lawful, must be known to the employee, and must pertain to the
[7]
duties which the employees have been engaged to discharge." A fictitious or nonexistent "secret" (or a publicly known one as in the instant case) can in no wise be the
basis of a reasonable and lawful rule or company policy regarding confidentiality.
Had petitioner successfully established by competent evidence the existence of
such company policy as well as the confidential nature of its technology, perhaps things
might have turned out differently. But inasmuch as petitioner failed utterly on both
counts, it follows that there was no basis at all for private respondent's dismissal on the
ground of either disobedience or loss of trust and confidence. The petitioner's failure to
prove violation of the policy necessarily means that private respondent's dismissal was
[8]
not justified. It is doctrinal that in an unlawful dismissal case, the employer has the
[9]
burden of proving the lawful cause for the employee's dismissal. To warrant dismissal
for loss of trust and confidence there should naturally be some basis
[10]
therefor. Unsupported by sufficient proof, "loss of confidence" is without basis and
may not be successfully invoked as a ground for dismissal.
Further, petitioner's failure to give private respondent the benefit of a hearing and
an investigation before his termination constitutes an infringement of his right to due
[11]
process of law.
It is an established rule of long standing that, to effect a completely valid and
unassailable dismissal, an employer must show not only sufficient ground therefor but
must also prove that procedural due process had been observed by giving the
employee two notices: one, of the intention to dismiss, indicating therein his acts or
omissions complained against, and two, notice of the decision to dismiss; and an
opportunity to answer and rebut the charges against him, in between such notices.
"The twin requirements of notice and hearing constitute essential elements of due
process in cases of employee dismissal: the requirement of notice is intended to
inform the employee concerned of the employer's intent to dismiss and the reason for
the proposed dismissal; upon the other hand, the requirement of hearing affords the
employee an opportunity to answer his employer's charges against him accordingly to
defend himself therefrom before dismissal is effected. Neither of these two
requirements can be dispensed with without running afoul of the due process
[12]
requirement of the 1987 Constitution.
"There is also no showing that the requirements of due process were adequately met
by the petitioners.
"The law requires that the employer must furnish the worker sought to be dismissed
with two (2) written notices before termination of employment can be legally
effected: (1) notice which apprises the employee of the particular acts or omissions
for which his dismissal is sought; and (2) the subsequent notice which informs the
employee of the employer's decision to dismiss him. (Sec. 13, BP 130; Sec. 2-6 Rule
XIV, Book V, Rules and Regulations Implementing the Labor Code as
amended). Failure to comply with the requirements taints the dismissal with
illegality. This procedure is mandatory; in the absence of which, any judgment

reached by management is void and inexistent (Tingson, Jr. v. NLRC, 185 SCRA 498
[1990]; National Service Corp. v. NLRC, 168 SCRA 122 [1988]; Ruffy v. NLRC, 182
[13]
SCRA 365 [1990])."
Petitioner's contention that there was no need to conduct a formal hearing before
dismissing private respondent because he was afforded the opportunity to explain and
defend himself in writing, is facile and likewise erroneous, not to mention misleading. As
observed by the Solicitor General, the opportunity granted to private respondent was
to explain his side regarding the report against him. At that time, there was yet no
charge filed by petitioner against private respondent. It was only when private
respondent articulated his views against petitioner's alleged policy on the secrecy of its
technology that it decided to require him to explain why the company should not
terminate his services for cause. Private respondent was not afforded the chance to be
informed of the details constituting his alleged violation. Moreover, petitioner did not
even present any evidence to prove its allegations against private respondent. On the
contrary, it was private respondent who before the public respondent duly established
that the purported secret propagation technique was no longer secret as it had attained
wide currency via government publications. Unarguable it is that the act of dismissing
an employee without first conducting a formal investigation is arbitrary and
[14]
unwarranted, as it affects one's person and property.
Moral and Exemplary Damages
In defending the assailed Resolutions, private respondent argued that the law on
moral damages, contained in Article 2217 of the Civil Code, provides that "moral
damages may be recovered if they are the proximate result of the defendant's wrongful
act or omission." While the foregoing discussion clearly shows that private respondent
was wrongfully dismissed by petitioner without valid cause, this does not automatically
mean that petitioner is liable to private respondent for moral or other damages.
[15]
In Primero vs. Intermediate Appellate Court, this Court held that "x x x an award
(of moral damages) cannot be justified solely upon the premise (otherwise sufficient for
redress under the Labor Code) that the employer fired his employee without just cause
or due process. Additional facts must be pleaded and proven to warrant the grant of
moral damages under the Civil Code, these being, to repeat, that the act of dismissal
was attended by bad faith or fraud, or was oppressive to labor, or done in a manner
contrary to morals, good customs, or public policy; and of course, that social
[16]
humiliation, wounded feelings, grave anxiety, etc., resulted therefrom."
This was
[17]
reiterated in Garcia vs. NLRC, where the Court added that exemplary damages may
be awarded only if the dismissal was shown to have been effected in a wanton,
[18]
oppressive or malevolent manner.
This the private respondent failed to do. Because no evidence was adduced to
show that petitioner company acted in bad faith or in a wanton or fraudulent manner in
dismissing the private respondent, the labor arbiter did not award any moral and
exemplary damages in his decision. Respondent NLRC therefore had no factual or
legal basis to award such damages in the exercise of its appellate jurisdiction. However,
the Court sustains the award of attorney's fees equivalent to five percent (5%) of the
total monetary award as authorized by the Labor Code.
WHEREFORE, premises considered, the assailed Resolutions are herewith
AFFIRMED, except that the award of moral and exemplary damages are hereby
deleted for lack of factual and legal basis.
SO ORDERED.
Pono v NLRC, GR# 118860

[G.R. No. 118860. July 17, 1997] ROMERO, J.

Petitioner Rolinda B. Pono seeks the annulment of the decision of the National
Labor Relations Commission dated August 31, 1994, affirming the August 27, 1993
decision of Labor Arbiter Benigno C. Villarente, Jr. which, in turn, dismissed petitioners
complaint for illegal dismissal, as well as the NLRCs resolution of November 9, 1994,
denying petitioners motion for reconsideration for lack of merit.
This case arose from complaint filed by Pono against herein private respondents
Sandoz Phils., Inc. (Sandoz) and Rafaelito I. Castillo for illegal dismissal, unfair labor
practices, separation pay and damages.
Pono averted that she was employed by Sandoz as medical representative, with
the primary task of conferring with doctors to update them about Sandoz various
medical products.Sometime on May 18, 1992, she was asked by Castillo, her
immediate supervisor, to report to his office and explain her alleged incompetence in
the performance of her work. At said meeting, Castillo confronted Pono concerning her
alleged infraction of company policies. It was then that Castillo started to physically take
advantage of Pono by touching different parts of her body.Aghast at her supervisors
action, Pono resisted his advances.
Unable to consummate his prurient desires, Castillo warned Pono not to inform
anybody about the incident; otherwise, her continued employment in the company
would be placed in jeopardy.
Fearful lest she should lose her job which she apparently valued more than her
dignity, Pono decided to remain silent and maintained a faade of normalcy for the next
five months. On October 5, 1992, however, she was again asked by Castillo to report
to his office ostensibly to discuss company matters and policies.
Apprehensive that the so-called conference was another ploy of Castillo for
sexually harassing her Pono decided to divulge the May 18, 1992 incident to her closest
co-workers.Thereafter, along with two co-workers, she informed Sandoz National Sales
Manager Godofredo Ruiz of the incident.
Subsequently, Mr. Ruiz called a meeting on October 6, 1992 to give a chance to
Castillo to explain his side on the matter. As expected, Castillo denied the incident of
May 18, 1992. Ruiz then asked Pono not to resign until after she has completely paid
the amortizations on the company car assigned to her. Undecided, Pono asked for a
reasonable time to consider the same.Two days later, however, Ruiz withdrew the offer;
whereupon, Castillo asked Pono to explain her inefficiencies in her work, which the
latter did through a handwritten statement dated October 14, 1992. After five days, her
services were formally terminated. With no recourse left, Pono filed the instant labor
case, as well as the necessary criminal charges before the Prosecutors Office of
Makati.
Private respondents reconstruction of the events was expectedly at variance with
Ponos. They claimed that she was one of seven medical representatives under
Castillos supervision.Castillos version is as follows. Having observed that Pono had
been violating several company policies, she was asked to comment on her alleged
infractions, such as absences in certain itineraries, discrepancies in her work report
and non-liquidation of cash advances. During the meeting, she admitted that her failure
to comply with her duties was due to personal problems and asked for some
understanding so she could put her life in order.
Castillo advised Pono to clean her backyard and follow company
policies. Notwithstanding the advice, Ponos work still fell short of company
standards. Hence, on October 5, 1992, he requested her personally report to him so
they could discuss matters concerning her work performance. Aware that she could no
longer offer a reasonable justification of her continued inefficiency, Pono decided to
fabricate her attempted rape story.

To add credence to her story, Pono went to Godofredo Ruiz to narrate the
attempted rape allegedly committed by Castillo, and at the same time offered to resign
from her job effective April 1993, at which time she would already be entitled to
purchase the company car she was then using at 50% of its appraised
value. Unfortunately, her request was denied by the company.
Pono, on the other hand, offered no plausible explanation as to her
shortcomings. Instead, she accused Castillo of harassing her and threatened to take
legal action against him to stave off her dismissal. Making good her threat, she filed
charges for unfair labor practice and sexual harassment against private respondents.
After considering the evidence and arguments of the parties, the Labor Arbiter
dismissed the complaint for lack of merit. As stated at the outset, this decision was
affirmed by the NLRC on appeal. It found that the infractions of company policies
committed by Pono warranted the penalty of dismissal.
Pono is now before this Court contending that the NLRC acted with grave abuse
of discretion and/or acted without or in excess of jurisdiction in affirming the decision of
the Labor Arbiter.
Before proceeding any further, it must be borne in mind that the issue of whether
or not there is a valid dismissal of an employee is a question of fact, the determination
[1]
of which is the statutory function of the NLRC. It is almost trite to state that factual
findings of the NLRC are generally accorded, not only respect but also finality, provided
that its decisions are supported by substantial evidence and devoid of any unfairness
[2]
or arbitrariness.
Pono contends that the NLRC erred when it deliberately disregarded her
complaint for sexual harasssment against Castillo. The Court takes cognizance of the
fact that a criminal complaint for attempted rape or acts of lasciviousness filed by Pono
against Castillo before the Prosecutors Office in Makati was eventually dismissed due
to lack of merit, which dismissal was affirmed by the Department of
[3]
Justice. Indisputably, an investigating fiscal is under no obligation to file a criminal
information where he is not convinced that he has the quantum of evidence at hand to
[4]
support the averments.
Thus, the determination of the persons to be prosecuted rests primarily with the
prosecutor who is vested with quasi-judicial discretion in the discharge of this
[5]
function. The courts should give credence, in the absence of a clear showing of
arbitrariness, to the findings and determination of probable cause by prosecutors in a
[6]
preliminary investigation.
With respect to the legality of Ponos dismissal, we have consistently held that, to
validate a dismissal, the employer must show that (1) there was sufficient or just cause
[7]
therefor and that (2) due process was observed.
Bearing these standards in mind, we find that while Pono was dismissed for
cause, the same disregarded the requirements of due process.
Well settled is the dictum that the twin requirements of notice and hearing
[8]
constitute the essential elements of due process in the dismissal of employees. It is
a cardinal rule in our jurisdiction that the employer must furnish the employee with two
written notices before the termination of employment can be affected: (a) the first
apprises the employee of the particular acts or omissions for which his dismissal is
sought; and (b) the second informs the employee of the employers decision to dismiss
[9]
him.
The requirement of a hearing, on the other hand, is complied with as long as there
was an opportunity to be heard, and not necessarily that an actual hearing was
[10]
conducted.
In the case at bar, Pono was duly notified of the charges against her. The records
reveal that on October 5, 1992, she was asked to explain why were some discrepancies

[11]

in her reported calls and the actual signatures of the doctors in the call cards.
In
[12]
another notice dated October 12, 1992 , she was apprised of an apparent forgery in
the signatures of a certain Dra. Melissa Bilgeria, and was asked to explain her side
within 72 hours from receipt thereof.
An examination of the records, however, reveals that no hearing was ever
conducted by Sandoz before Pono was dismissed. The meeting called by Ruiz on
October 5, 1992, is not the hearing contemplating by law since it was merely for the
purpose of informing Pono about her questionable work report, and to serve Pono a
written notice detailing her infractions in her worksheet. In fact, barely two weeks later,
she was summarily dismissed. While it may be true that Pono was allowed to explain
her side at this meeting, it is undisputed that no hearing was actually conducted before
her employment was terminated.
Consultations or conferences may not be a substitute for the actual holding of a
[13]
hearing. Every opportunity and assistance must be accorded to the employee by the
management to enable him to prepare adequately for his defense, including legal
[14]
representation.
Considering that Pono denied the accusation that she forged a
doctors signature in her work report, these denials should at least have warranted a
separate hearing to enable her to fully ventilate her side. Absent such a hearing, Ponos
constitutional right to due process was clearly violated.
This conclusion, notwithstanding, we uphold the findings of the NLRC that Ponos
dismissal was for a just cause.
Under Article 282 of the Labor Code, the just causes for dismissal are the
following:
Article 282. Termination by employer. An employer may terminate an employment for
any of the following causes:
(1) Serious misconduct or willful disobedience by the employee of the lawful orders of
his employer or representative in connection with his work;
(2) Gross and habitual neglect by the employee of his duties;
(3) Fraud or willful breach by the employee of the trust reposed in him by his
employer or duly authorized representative;
(4) Commission of a crime or offense by the employee against the person of his
employer or any immediate member of his family or his duly authorized
representative; and
(5) Other causes analogous to the foregoing.
We cannot countenance Ponos incompetence and lack of diligence in the
performance of her duties. In fact, from June to October 1992, she received no less
than five written notices calling her attention to her negligence in discharging her duties,
not to mention the documented deliquencies she incurred prior to the alleged May 18,
1992 incident. Moreover, the habit of reporting visits or calls to several doctors when
no such visits or calls were actually made constitutes serious misconduct. We,
therefore, hold that Ponos dismissal was for a just cause.
In a growing number of cases, this Court has consistently held that where the
dismissal of an employee is, in fact, for a proven just and valid cause, but he is not
accorded due process, the dismissal shall be upheld, but the employer must be held
[15]
liable for the violation of his right to due process. The identical situation obtains in
the case at bar.
WHEREFORE, the instant petition is hereby DISMISSED for lack of merit. The
August 31, 1994 decision of respondent National Labor Relations Commission is
AFFIRMED with the MODIFICATION that private respondent shall pay to the
petitioner P1,000.00, in keeping with the Courts policy regarding the same, as damages
[16]
for its, failure to observe procedural due process in effecting the dismissal.

SO ORDERED.
PAL v NLRC, GR# 114307
ROMERO, J [G.R. No. 114307. July 8, 1998]
The central issue in the case at bar is whether or not an employee who has been
preventively suspended beyond the maximum 30-day period is entitled to backwages
and salary increases granted under the Collective Bargaining Agreement (CBA) during
his period of suspension.
Private respondent Edilberto Castro was hired as manifesting clerk by petitioner
Philippine Airlines Inc. (PAL) on July 18, 1977. It appears that on March 12, 1984,
respondent, together with co-employee Arnaldo Olfindo, were apprehended by
government authorities while about to board a flight en route to Hongkong in possession
of P39,850.00 and P6,000.00 respectively, in violation of Central Bank (CB) Circular
[1]
265, as amended by CB Circular 383, in relation to Section 34 of Republic Act 265,
as amended.
When informed of the incident, PAL required respondent to explain within 24
[2]
hours why he should not be charged administratively. Upon failure of the latter to
submit his explanation thereto, he was placed on preventive suspension effective
March 27, 1984 for grave misconduct.
On May 28, 1984, an investigation was conducted wherein respondent admitted
ownership of the confiscated sum of money but denying any knowledge of CB Circular
265. No further inquiry was conducted. On August 13, 1985, respondent, through the
Philippine Airlines Employees Association (PALEA), sought not only the dismissal of
his case but likewise prayed for his reinstatement, to which appeal, PAL failed to make
a reply thereto. He reiterated the same appeal in his letter dated August 13, 1987.
On September 18, 1987 or three (3) years and six (6) months after his suspension,
PAL issued a resolution finding respondent guilty of the offense charged but
nonetheless reinstated the latter explaining that the period within which he was out of
work shall serve as his penalty for suspension. The said resolution likewise required
respondent to affix his signature therein to signify his full conformity to the action taken
by PAL. Upon his reinstatement, respondent filed a claim against PAL for backwages
and salary increases granted under the collective bargaining agreement (CBA)
covering the period of his suspension which the latter, however, denied on account that
under the existing CBA, an employee under suspension is not entitled to the CBA salary
[3]
increases granted during the period covered by his penalty.
On March 22, 1991, Labor Arbiter Jose G. de Vera rendered a decision, the
decretal portion of which reads as follows:
WHEREFORE, all the foregoing premises being considered, judgment is
hereby rendered limiting the suspension imposed upon the complainant to
one (1) month, and the respondent to pay complainant his salaries,
benefits, and other privileges from April 26, 1984 up to September 18,
1987 and to grant complainant his salary increases accruing during the
period aforesaid. Further, the respondent is hereby ordered to pay
complainant P50,000.00 in moral damages and P10,000.00 in exemplary
damages.
[4]
SO ORDERED.
On appeal, this decision was affirmed by the National Labor Relations
Commission (NLRC) in its decision dated December 29, 1993 with the deletion of the
award of moral and exemplary damages. Hence, the instant petition.

We resolve to dismiss the petition.

Preventive suspension is a disciplinary measure for the protection of the
companys property pending investigation of any alleged malfeasance or misfeasance
[5]
committed by the employee. The employer may place the worker concerned under
preventive suspension if his continued employment poses a serious and imminent
[6]
threat to the life or property of the employer or of his co-workers.
Sections 3 and 4, Rule XIV of the Omnibus Rules Implementing the Labor Code
provides:
Sec. 3. Preventive suspension. - The employer can place the worker
concerned under preventive suspension if his continued employment
poses a serious and imminent threat to the life or property of the employer
or of his co-workers.
Sec. 4. - Period of suspension. - No preventive suspension shall last longer
than 30 days. The employer shall thereafter reinstate the worker in his
former or in a substantially equivalent position or the employer may extend
the period of suspension provided that during the period of extension, he
pays the wages and other benefits due to the workers. In such case, the
worker shall not be bound to reimburse the amount paid to him during the
extension if the employer decides, after completion of the hearing, to
dismiss the worker. (Underscoring supplied)
It is undisputed that the period of suspension of respondent lasted for three (3)
years and six (6) months. PAL, therefore, committed a serious transgression when it
manifestly delayed the determination of respondents culpability in the offense
charged. PAL stated lamely in its petition that due to numerous administrative cases
pending at that time, the Committee inadvertently failed to submit its recommendation
[7]
to (the) management. This is specious reasoning. The rules clearly provide that a
preventive suspension shall not exceed a maximum period of 30 days, after which
period, the employee must be reinstated to his former position. If the suspension is
otherwise extended, the employee shall be entitled to his salaries and other benefits
that may accrue to him during the period of such suspension. The provisions of the
rules are explicit and direct; hence, there is no reason to further elaborate on the same.
PAL faults the Labor Arbiter and the NLRC for allegedly equating preventive
suspension as remedial measure with suspension as penalty for administrative
offenses. The argument though cogent is, however, inaccurate. A distinction between
the two measures was clearly elucidated by the Court in the case of Beja Sr. v.
[8]
CA, thus:
Imposed during the pendency of an administrative investigation, preventive
suspension is not a penalty in itself. It is merely a measure of precaution so
that the employee who is charged may be separated, for obvious reasons,
from the scene of his alleged misfeasance while the same is being
investigated. While the former may be imposed on a respondent during the
investigation of the charges against him, the latter is the penalty which may
only be meted upon him at the termination of the investigation or the final
disposition of the case.
A cursory reading of the records reveals no reason to ascribe grave abuse of
discretion against the NLRC. Simply put, its decision was grounded upon petitioners
manifest indifference to the plight of its suspended employee and its consequent
violation of the Implementing Rules of the Labor Code. As correctly ruled by the NLRC:

In fact, the long period of complainants preventive suspension could even

be considered constructive dismissal because were it not his letter dated
September 12, 1985 and followed by another on September 18, 1987
demanding his reinstatement, respondent by its inaction appears to have
no plan to employ him back to work. The manifest inaction of respondent
over the pendency of the administrative charge is indeed violative of
complainants security of tenure because without any justifiable cause and
due process complainants employment would have gone into
[9]
oblivion. (Underscoring supplied)
PAL contends that when respondent consented to the resolution that the entire
period of suspension shall constitute his penalty for the offense charged, the latter is
thereby estopped to question the validity of said suspension. We concur with the labor
arbiter when he ruled that the ensuing conformity by respondent does not cure
petitioners blatant violation of the law, and the same is therefore null and void. Thus, to
uphold the validity of the subsequent agreement between complainant and respondent
regarding the imposition of the suspension would be repulsive to the avowed policy of
[10]
the State enshrined not only in the Constitution but also in the Labor Code.
In fine, we do not question the right of the petitioner to discipline its erring
employees and to impose reasonable penalties pursuant to law and company rules and
regulations. Having this right, however, should not be confused with the manner in
[11]
which that right must be exercised. Thus, the exercise by an employer of its rights to
regulate all aspects of employment must be in keeping with good faith and not be used
as a pretext for defeating the rights of employees under the laws and applicable
[12]
contracts. Petitioner utterly failed in this respect.
WHEREFORE, premises considered, the petition is DISMISSED for lack of merit
and the assailed decision is AFFIRMED. No costs.
SO ORDERED.
Samson v NLRC, GR# 121035
[G.R. No. 121035. April 12, 2000]; KAPUNAN, J
Through this petition for certiorari, Rufino Norberto F. Samson ("petitioner") assails
the Decision, dated 17 March 1995, of the National Labor Relations Commission in
the consolidated cases of NLRC NCR-00-01-00652-94 and NLRC NCR-00-02-0088794. Petitioner likewise assails the Resolution, dated 10 May 1995, of the NLRC
denying his motion for reconsideration.
The assailed decision of the NLRC reversed and set aside the Decision, dated 25
August 1994, of Labor Arbiter Ricardo C. Nora finding respondent Schering-Plough
Corporation ("respondent company") guilty of illegal dismissal and ordering it to
reinstate petitioner to his former position as District Sales Manager and to pay him
backwages.
As culled from the decisions of the labor arbiter and the NLRC, the facts of the case
are as follows:
This pertains to the case (NCR-00-01-00652-94) filed by the
complainant Rufino Norberto F. Samson against the respondents
Schering Plough Corp. (SPC for brevity) and Mr. Leo C. Riconalla,
National Sales Manager, for money equivalent of rice subsidy for
the period April 1990 to December 1992 and holiday pay, now
deemed submitted for resolution based on records available.

On February 1, 1994, said complainant filed another case (NCR-0002-00887-94) for illegal preventive suspension raffled to the
Honorable Labor Arbiter Donato G. Quinto, Jr. and consolidated to
the above case number.
Likewise, on February 4, 1994, complainant filed a Motion to
Amend Complaint and averred pertinently that x x x complainant
was placed under an indefinite preventive suspension on 25
January 1994; and x x x was arbitrarily and summarily terminated
from employment on 03 February 1994 on ground of loss of
confidence.
As culled from the records of the instant case, what really
precipitated complainants preventive suspension culminating to his
dismissal is (sic) the incident that took place on December 17, 1993
as gleaned from the exchange of letters/memoranda from both
parties.
In a letter dated 25 January 1994 (Annex A) addressed to the
complainant Mr. Samson signed by one J.L. Estingor, the latter
called the attention of (sic) the complainants conduct x x x in a
manner inimical to the interests of SPC and enumerated the
following acts committed by the complainant; to wit:
xxxxxxxxx
1. On or about 17 December 1993, during the Sales and
Marketing Christmas gathering, you made utterances of
obscene, insulting, and offensive words, referring to or
directed against SPCs Management Committee, in the
presence of several co-employees.
2. On that same occasion, and again in the presence of
several co-employees, you uttered obscene, insulting and
offensive words, and made malicious and lewd gestures,
all of which referred to or were directed against Mr.
Epitacio D. Titong, Jr. President and General Manager of
SPC.
3. Also on that same occasion, you repeated your
malicious utterances and threatened to disrupt or
otherwise create violence during SPCs forthcoming
National Sales Conference, and enjoined your coemployees not to prepare for the said conference.
4. Subsequently, on or about 3 January 1994, you
repeated your threats to some co-employees, advising
them to watch out for some disruptive actions to happen
during the National Sales Conference. (Underscoring ours)
Complainant was given two (2) days from receipt of the foregoing
letter and to explain x x x why no disciplinary action, including
termination, should be taken against the complainant and in the
meantime was placed on preventive suspension effective
immediately, until further notice.
Complainant on the very same date 25 January 1994 and in reply
to the above-mentioned letter/memo (Annex B) wrote an
explanation stating:
xxxxxxxxx

Relative to the said memo I would like to categorically

state the following facts:
1. That the act(s) alluded in the memo, specifically
paragraph[s] 1 and 2, which alleged that I uttered
obscene, insulting and offensive words is not true. If ever I
happened to utter such words it was made in reference to
the decision taken by the management committee on the
Cua Lim case and not to any particular or specific
person(s) as stated in the memo.
2. I beg to disagree with the statement made in
Paragraphs 3 and 4 of the same memo as I deny to have
uttered much less threaten to create violence and disrupt
the holding of the National Sales Conference.
Finally, I am lodging a formal protest for being placed
under preventive suspension it being contrary to the memo
which gave me two (2) days within which to explain my
position before any disciplinary action could be initiated. I
believe that the pre-empted imposition of the preventive
suspension is not only arbitrary but is violative of my
constitutional 'right to due process'.
Submitted for your information.(Underscoring ours)
Again, on January 27, 1994, complainant wrote a letter (Annex 'C')
addressed to Mr. J.L. Estingor, HRD Manager, which in part reads:
xxxxxxxxx
Being a staff (DSM) assigned in the field I seldom stay in
the office except on extreme necessity or when my
presence is required. Under such situation my continued
employment will not in any way poses [sic] serious or
imminent threat to the life and property of the company as
well as my co-employees. The preventive suspension
meted out against me is not only abusive, arbitrary but
indiscriminately applied under the guise of managerial
prerogative but violative of my right under the law.
I trust that my immediate reinstatement will be acted upon
without any further delay.
In a letter dated February 3, 1994, respondent SPC thru Mr. J.L.
Estingor, wrote a letter (Annex D) to the complainant Mr. Samson,
the dispositive part of which reads as follows:
xxxxxxxxx
In view of the foregoing, notice is hereby given that your
employment from Schering Plough Corporation is
terminated effective at the close of business hours of 3
February 1994.
We reiterate our previous directive for you to turn over the
service vehicle, all money, documents, records and other
property in your possession or custody to the National
Sales Manager. Please comply with this directive
[1]
immediately."
On the basis of the pleadings filed by the parties and evidence on record, the labor
arbiter rendered his Decision, dated 25 August 1994, declaring the dismissal of
petitioner illegal. The labor arbiter ruled that petitioners conduct is not so serious as to
warrant his dismissal because: 1) the alleged offensive words were uttered during an

informal and unofficial get-together of employees where there was social drinking and
petitioner was already tipsy; 2) the words were uttered to show disapproval over
managements decision on the "Cua Lim" case; 3) the penalty for the offense is only
"verbal reminder" under respondent companys rules and regulations; and 4) petitioner
was already admonished during a meeting on 4 January 1994. Accordingly,
respondent company was ordered to reinstate petitioner as District Sales Manager
[2]
and to pay him backwages.
Both parties appealed said decision to the NLRC. Petitioner filed a partial appeal of
the denial of his claim for holiday pay and the cash equivalent of the rice subsidy. For
its part, respondent company sought the reversal of the decision of the labor arbiter
alleging that the latter erred in ruling that petitioners employment was terminated
without valid cause and in ordering his reinstatement.
In reversing the labor arbiters decision, the NLRC found that there was just
cause, i.e., gross misconduct, for petitioners dismissal. The NLRC made the following
disquisition, thus:
It is well established in the records that complainant made insulting
and obscene utterances directed at the respondent companys
management committee in the presence of several employees.
Again, he directed his verbal abuse against General Manager and
President Epitacio D. Titong, Jr. by uttering "Si EDT, bullshit yan",
"sabihin mo kay EDT yan"; and "sabihin mo kay EDT, bullshit yan"
while gesturing and making the "dirty finger" sign. (page 7,
Decision) These utterances were made by the complainant in [a]
loud manner. (Affidavit of Leo C. Riconalla, Annex "1", of
respondents position paper) He was further accused of threatening
to disrupt respondents national sales conference by telling Ms.
Anita Valdezco that the conference will be a "very bloody one."
(Respondents position paper)
We consider the foregoing actuations of the complainant as
constituting gross misconduct, sufficient to justify respondents in
terminating his services. The actuation of the complainant is
destructive of the morals of his co-employees and, therefore, his
continuance in the position of District Sales Manager would be
patently inimical to the respondent companys interest.
Complainant is a managerial employee as he is a District Sales
Manager. As such, his position carries the highest degree of
responsibility in improving and upholding the interests of the
employer and in exemplifying the utmost standard of discipline and
good conduct among his-co-employees. (Top Form Mfg. Inc., vs.
NLRC, 218 SCRA 313) In terminating the employment of
managerial employees, the employer is allowed a wider latitude of
discretion than in the case of ordinary rank-and-file employee.
[3]
(Aurelio vs. NLRC, et al., G.R. 99034, April 12, 1993)
Preliminarily, we find it necessary to resolve the procedural issues raised by
respondent company in its Comment (with Motion for Clarification), dated 6
September 1995. Respondent company harped on the fact that the caption of the
petition did not include the docket numbers of the cases before the NLRC in violation
of Supreme Court Circular 28-91. We do not find this omission fatal as the pertinent
docket numbers had been set out in the first and second pages of the petition. The
same constitutes substantial compliance with the requirement of the law.
Respondent company further opined that the petition should be summarily dismissed
as the decision had become final and executory citing Section 114, Rule VII and

Section 2 (b), Rule VIII of the Rules of Procedure of the NLRC. This contention is
likewise untenable. As an original action for certiorari, the petition was merely
required to be filed within a reasonable time from receipt of a copy of the questioned
[4]
decision or resolution. Under the rules then in effect at the time of the filing of the
instant petition, a period of three (3) months was considered to be "reasonable
[5]
time". In this case, petitioner received a copy of the assailed NLRC decision on 25
April 1995. He filed a motion for reconsideration on 27 April 1995 but it was denied by
the NLRC in its assailed resolution, a copy of which was received by petitioner on 1
July 1995. The instant petition was filed twenty-seven (27) days after said receipt or
on 28 July 1995. Clearly, the instant petition was filed well within the reglementary
period provided by law.
Having settled that, we now address the substantive issue involved in this case, i.e.,
whether the NLRC acted with grave abuse of discretion amounting to lack or excess
of jurisdiction in reversing the decision of the labor arbiter and ruling that petitioner
was validly dismissed.
We rule in favor of petitioner.
The issue of whether petitioner was validly dismissed is a factual one and generally,
factual findings of the NLRC are accorded respect. In this case, however, there is
compelling reason to deviate from this salutary principle because the findings of facts
of the NLRC are in conflict with that of the labor arbiter. Accordingly, this Court must
of necessity review the records to determine which findings should be preferred as
[6]
more conformable to the evidentiary facts.
To constitute valid dismissal, two (2) requisites must be met: (1) the dismissal must
be for any of the causes expressed in Article 282 of the Labor Code; and (2) the
[7]
employee must be given an opportunity to be heard and defend himself. Article 282
of the Labor Code provides:
Art. 282. Termination by employer. An employer may terminate
an employment for any of the following causes:
a. Serious misconduct or willful disobedience by the employee of
the lawful orders of his employer or representative in connection
with his work;
b. Gross and habitual neglect by the employee of his duties;
c. Fraud or willful breach by the employee of the trust reposed in
him by his employer or duly authorized representative;
d. Commission of a crime or offense by the employee against the
person of his employer or any immediate member of his family or
his duly authorized representative; and
e. Other causes analogous to the foregoing.
As borne by the records, petitioners dismissal was brought about by the utterances he
made during an informal Christmas gathering of respondent companys Sales and
Marketing Division on 17 December 1993. Petitioner was heard to have uttered, "Si
EDT (referring to Epitacio D. Titong, General Manager and President of respondent
company), bullshit yan," "sabihin mo kay EDT yan" and "sabihin mo kay EDT, bullshit
yan," while making the "dirty finger" gesture. Petitioner likewise told his co-employees
that the forthcoming national sales conference of respondent company would be a
"very bloody one."
The NLRC ruled that the foregoing actuation of petitioner constituted gross
misconduct warranting his dismissal. Citing jurisprudence, the NLRC held that "in
terminating the employment of managerial employees, the employer is allowed a
[8]
wider latitude of discretion than in the case of ordinary rank-and-file."
We do not agree with the findings of the NLRC.

Misconduct is improper or wrong conduct. It is the transgression of some established

and definite rule of action, a forbidden act, a dereliction of duty, willful in character,
and implies wrongful intent and not mere error in judgment. The misconduct to be
serious must be of such grave and aggravated character and not merely trivial and
unimportant. Such misconduct, however serious, must, nevertheless, be in
[9]
connection with the employees work to constitute just cause for his separation.
In this case, the alleged misconduct of petitioner, when viewed in its context, is not of
such serious and grave character as to warrant his dismissal. First, petitioner made
the alleged offensive utterances and obscene gesture during an informal Christmas
gathering of respondent companys district sales managers and marketing staff. The
gathering was just a casual get-together of employees. It is to be expected during this
kind of gatherings, where tongues are more often than not loosened by liquor or other
alcoholic beverages, that employees freely express their grievances and gripes
against their employers. Employees should be allowed wider latitude to freely express
their sentiments during these kinds of occasions which are beyond the disciplinary
authority of the employer. Significantly, it does not appear in the records that
petitioner possessed any ascendancy over the employees who heard his utterances
as to cause demoralization in the ranks.
Second, petitioners outburst was in reaction to the decision of the management in the
"Cua Lim" case. Admittedly, using the words "bullshit" and "putang ina" and making
lewd gesture to express his dissatisfaction over said management decision were
clearly in bad taste but these acts were not intended to malign or cast aspersion on
the person of respondent companys president and general manager.
The instant case should be distinguished from the previous cases where we held that
the use of insulting and offensive language constituted gross misconduct justifying an
[10]
employees dismissal. In De la Cruz vs. NLRC, the dismissed employee shouted
"sayang ang pagka-professional mo!" and "putang ina mo" at the company physician
when the latter refused to give him a referral slip. In Autobus Workers Union (AWU)
[11]
vs. NLRC, the dismissed employee called his supervisor "gago ka" and taunted the
latter by saying "bakit anong gusto mo, tang ina mo." In these cases, the dismissed
employees personally subjected their respective superiors to the foregoing verbal
abuses. The utter lack of respect for their superiors was patent. In contrast, when
petitioner was heard to have uttered the alleged offensive words against respondent
companys president and general manager, the latter was not around.
[12]
In Asian Design and Manufacturing Corporation vs. Deputy Minister of Labor, the
dismissed employee made false and malicious statements against the foreman (his
superior) by telling his co-employees: "If you dont give a goat to the foreman you will
be terminated. If you want to remain in this company, you have to give a goat." The
dismissed employee therein likewise posted a notice in the comfort room of the
company premises which read: "Notice to all Sander - Those who want to remain in
this company, you must give anything to your foreman. Failure to do so will be
[13]
terminated Alice 80." In Reynolds Philippine Corporation vs. Eslava, the dismissed
employee circulated several letters to the members of the companys board of
directors calling the executive vice-president and general manager a "big fool," "antiFilipino" and accusing him of "mismanagement, inefficiency, lack of planning and
foresight, petty favoritism, dictatorial policies, one-man rule, contemptuous attitude to
labor, anti-Filipino utterances and activities." In this case, the records do not show
that petitioner made any such false and malicious statements against any of his
superiors.
Third, respondent company itself did not seem to consider the offense of petitioner
serious and grave enough to warrant an immediate investigation on the matter. It
must be recalled that petitioner uttered the alleged offensive language at an informal

gathering on 17 December 1993. He then allegedly made threatening remarks about

the forthcoming sales conference on 3 January 1994. During a meeting on 4 January
1994, Mr. Titong, Jr., the president and general manager of respondent company and
allegedly to whom the offensive words were directed, merely admonished petitioner
stating that, "when there is a disagreement, act in a professional and civilized
manner." Respondent company allowed several weeks to pass before it deemed it
necessary to require petitioner to explain why no disciplinary action should be taken
against him for his behavior. This seeming lack of urgency on the part of respondent
company in taking any disciplinary action against petitioner negates its charge that
the latters misbehavior constituted serious misconduct.
[14]
Further, respondent companys rules and regulations provide as follows:
NATURE OF THE OFFENSE
1. xxx
2. Loafing or loitering, engaging in fistcuffs or loudmouthed
quarreling or provoking or engaging others to such behaviour,
inflicting bodily harm to another, any violent act or language which
affects adversely morals, production or the maintenance of
discipline, indecent or immoral conduct during working hours;
unauthorized participation in activities during official hours which
are outside of regularly assigned duties: malingering; unauthorized
absence such as undertime; going on sick leave although not
actually sick; frequently receiving visitors during official hours for
personal matter.
3. Willful and intentional refusal without valid reason to accept work
or follow specific instructions; disrespect; insolence; and like
behavior towards a superior authority of a high ranking officer of the
company.
PENALTIES
First Offense: Verbal reminder
Second Offense: Written reprimand
Third offense: Payroll deduction for time not worked due offenses.
Review with Dept. Head with written follow up.
Fourth Offense: 2nd written reprimand with warning of suspension
Fifth Offense: Suspension and final reprimand with warning of
dismissal if reoccurs.
Sixth Offense: Dismissal
Petitioners conduct on 17 December 1993 may be properly considered as falling
under either paragraph number 2, i.e., use of violent language, or paragraph number
3, i.e., insolence or disrespect towards a superior authority. Being a first offense, the
appropriate penalty imposable on petitioner is only a "verbal reminder" and not
dismissal.
Indeed, the penalty of dismissal is unduly harsh considering that petitioner had been
in the employ of respondent company for eleven (11) years and it does not appear
that he had a previous derogatory record. It is settled that notwithstanding the
existence of a valid cause for dismissal, such as breach of trust by an employee,
nevertheless, dismissal should not be imposed, as it is too severe a penalty if the
latter had been employed for a considerable length of time in the service of his
employer, and such employment is untainted by any kind of dishonesty and
[15]
irregularity.
This concern of the Court for the termination of employment even on the assumption
that conduct far from exemplary was indulged in was made evident in the case
[16]
of Almira vs. B.F. Goodrich Philippines, Inc., where this Court held:

It would imply at the very least that where a penalty less punitive
would suffice, whatever missteps may be committed by labor ought
not to be visited with a consequence so severe. It is not only
because of the laws concern for the workingman. There is, in
addition, his family to consider. Unemployment brings untold
hardships and sorrows on those dependent on the wage-earner.
The misery and pain attendant on the loss of jobs then could be
avoided if there be acceptance of the view that under all
circumstances of this case, petitioners should not be deprived of
their means of livelihood. Nor is this to condone what had been
done by them. For all this while, since private respondent
considered them separated from the service, they had not been
paid. From the strictly juridical standpoint, it cannot be too strongly
stressed, to follow Davis in his masterly work, Discretionary Justice,
that where a decision may be made to rest on informed judgment
rather than rigid rules, all the equities of the case must be accorded
[17]
their due weight.
Given the environmental circumstances of this case, the acts of petitioner clearly do
not constitute serious misconduct as to justify his dismissal. Neither is his dismissal
justified on ground of loss of confidence. As a ground for dismissal, the term "trust
[18]
and confidence" is restricted to managerial employees. We share the view of the
Solicitor General that petitioner is not a managerial employee. Before one may be
properly considered a managerial employee, all the following conditions must be met:
(1) Their primary duty consists of the management of the
establishment in which they are employed or of a department or
sub-division thereof;
(2) They customarily and regularly direct the work of two or more
employees therein;
(3) They have the authority to hire or fire other employees of lower
rank; or their suggestions and recommendations as to the hiring
and firing and as to the promotion or any other change of status of
[19]
other employees are given particular weight.
Further, it is the nature of the employees functions, and not the nomenclature or title
given to his job, which determines whether he has rank-and-file, supervisory or
[20]
managerial status. Petitioner describes his functions as District Sales Manager as
follows:
"The office of a District Sales Managers primary responsibility is to
achieve or surpass the sales and profit targets for each territory in
the assigned district through: (a) efficient planning; (b) management
function; and (c) auditing and control. "Management action," on the
other hand, means to direct the activities of the Professional
Medical Representatives [by]: (1) [making] decisions that are
compatible with district, national and corporate objectives; (2)
[directing] the activities of representative through - (a) frequent field
visits (must spend at least 80% of working days in a quarter,
allocating eight (8) working days per PMR/quarter excluding travel
time); (b) written communications; (c) sales meetings (3) [training]
PMRs in medical/product knowledge; (4) [motivating] and
[developing] PMRs toward greater productivity; (5) [acting] as a
channel between field and home office; (6) [maintaining] records as
basis for quick analysis of the district performance; (7) [overseeing]
special projects assuring the cost benefit value of such benefit; (8) x

x x suggesting to sales management new ideas, methods, devices

to increase productivity of sales district or individual properties; and
[insuring] safe custody and proper maintenance of all company
[21]
properties (e.g. company cars, audio-visuals).
The above job description does not mention that petitioner possesses the power "to
lay down policies nor to hire, transfer, suspend, lay off, recall, discharge, assign or
discipline employees." Absent this crucial element, petitioner cannot be considered a
managerial employee despite his designation as District Sales Manager.
Granting arguendo that petitioner were to be considered a managerial employee, the
ground for "loss of confidence" is still without basis. Loss of trust and confidence to be
[22]
a valid ground for an employees dismissal must be clearly established. A breach is
willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as
distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.
It must rest on substantial grounds and not on the employers arbitrariness, whims,
caprices or suspicion, otherwise, the employee would remain at the mercy of the
[23]
employer. When petitioner made the offensive utterances, it can be said that he
merely acted "carelessly, thoughtlessly or heedlessly" and not "intentionally,
knowingly, purposely, or without justifiable excuse."
In fine, there being no just cause for petitioners dismissal, the same is consequently
unlawful. Petitioner is thus entitled to reinstatement to his position as District Sales
Manager, unless such position no longer exists, in which case he shall be given a
substantially equivalent position without loss of seniority rights. He is likewise entitled
to the payment of his full backwages.
With respect to petitioners other monetary claims, however, we agree with the
findings of the labor arbiter that he failed to establish his entitlement thereto. We
quote with approval the labor arbiters pertinent findings as follows:
Anent the monetary claims of complainant for payment of the
holiday pay and the cash equivalent of the rice subsidy for the
period April 1990 to December 1992 vis-a-vis the documentary
evidence available on records (Annexes "H" and "I") this Office is
inclined to deny said claims for failure of the complainant to
substantially and convincingly prove the same.
When complainant was appointed District Sales Manager effective
April 1, 1990, his salary was increased by PESOS: Two Thousand
Five Hundred Only (P2,500.00) (Annex "H") in accordance with
respondents "Salary Administrative Policy".
Again, effective January 1, 1993, complainants salary was
increased by PESOS: One Thousand One Hundred Four, so much
so that in the span of two (2) years, complainants salary reached
the amount of Twenty Thousand Five Hundred Thirty Six
(P20,536.00) Pesos which lends credence to the position of the
respondent SPC that said claims for holiday pay and rice subsidy is
[24]
already integrated in complainants salary.
WHEREFORE, the instant petition is GRANTED. The Decision, dated 17 March 1995,
and Resolution, dated 10 May 1995, of the NLRC in the consolidated cases of NLRC
NCR-00-01-00652-94 and NLRC NCR-00-02-00887-94 are REVERSED and SET
ASIDE. The Decision, dated 25 August 1994, of the labor arbiter is REINSTATED.
SO ORDERED. Then Guevarra v Eala, AC No 7136, 1 Aug 2007
Pacific Maritime V Ranay, GR# 111002

[G.R. No. 111002. July 21, 1997]; ROMERO, J.

That a mans job is a property right within the ambit of Constitutional protection
has been long recognized and accepted in law; hence, we are circumspect and vigilant
whenever a worker comes to this Court complaining of illegal dismissal. In each such
case, we require the employer to prove by substantial evidence the facts constituting
[1]
the ground for dismissal, and that termination has been effected with strict
observance of both procedural and substantive due process. It is by these standards
that the Court has judged the instant petition.
Petitioner Pacific Maritime Services, Inc. (Pacific, for brevity), is a duly licensed
manning agency while its co-petitioners, Malayan Insurance Corporation and Crown
Ship Management, Inc., are the formers bonding company and principal,
respectively. On February 1, 1989, Pacific engaged the services of private respondents
Nicanor Ranay and Gerardo Ranay as laundrymen. Their employment contracts, both
dated February 1, 1989, and duly approved by the Philippine Overseas Employment
Agency (POEA), provided for the following uniform compensation package: (1) basic
monthly salary of US$300.00; (2) additional fixed overtime pay in the amount of
US$150.00; and (3) leave pay equivalent to six days wages. These contracts were
supposed to be effective for ten months from the date of hiring.
On February 14, 1989, private respondents boarded the vessel M/V Star
Princess, where they were assigned to work, and which immediately left the
Philippines. After working for only three months and thirteen days, however, private
respondents were ordered to disembark. They were subsequently repatriated to the
Philippines on May 27, 1989.
Because of their dismissal, private respondents filed on August 14, 1989, a
complaint against petitioners before the POEA, challenging the legality of their
dismissal on the ground that the same was effected without prior notice and without
just cause. Consequently, they prayed for recovery of all unpaid salaries, overtime pay
and leave pay which had accrued and could have accrued were it not for the
pretermination of their contracts.
Pacific opposed the complaint, contending that the dismissal of private
respondents was validly made. It argued that private respondents employment was
terminated due to serious misconduct, insubordination, non-observance of proper
hours of work and damage to the laundry of the vessels crew and passengers. To
[2]
support these allegations, petitioners presented a telefax transmission, its lone
evidence, purportedly executed and signed by a certain Armando Villegas. Said
document made an account of the incidents which allegedly prompted Pacific to
terminate private respondents services, among which were: (1) the assault on the
person of Armando Villegas himself by Gerardo Ranay coupled with the latters
utterance of the words Putang-ina mo! in the presence of at least four other crew
members; (2) Gerardo Ranays failure to report for work for three consecutive days; (3)
Nicanor Ranays tardiness in going to his working area and having a drinking spree with
his brother Gerardo; and (4) failure of private respondents to adjust to their working
environment. The records, however, do not reveal that petitioners ever presented any
corroborative or additional evidence to buttress this allegation other than photocopies
of two Rizal Commercial Banking Corporation checks both for P1,919.85 and both
dated October 3, 1989, allegedly paid to private respondents by Pacific, and
[3]
computations of private respondents wages, overtime pay and leave pay.
On the basis of the parties submission, then POEA Administrator Jose N.
[4]
Sarmiento rendered a decision dated November 6, 1990, which ruled that private
respondents dismissal was illegal for failure of petitioners to prove the legality thereof

and to afford them due process. He refused to give credence to the report made by
Armando Villegas which was prepared long after the events referred to therein had
taken place. Accordingly, he ordered petitioners to pay private respondents each in the
amount of US$2,925.00 corresponding to their salaries for the unexpired 6 and 1/2month portion of their employment contracts; P15,566.85 each for their unpaid salaries,
overtime pay and leave pay; and plane fare for the return trip to the
Philippines.Furthermore, he found merit in private respondents claim that they were not
paid their salaries, overtime and vacation leave pay up to May 29, 1989, since the
vouchers failed to show that the checks intended to cover the amounts for the private
respondents were duly acknowledged and received by them. He pointed out that the
columns for Received by and "Date were all in blank and that, at any rate, the amount
of P1,919.85 covered by each check was insufficient to pay for what would be rightfully
due to private respondents.
Aggrieved, petitioners appealed to the NLRC. On April 19, 1993, the Commission
[5]
dismissed said appeal and affirmed the decision of the POEA. Hence, this petition.
As stated at the outset, the merit of this petition depends on petitioners strict
compliance with the requirements of both procedural and substantive due process, as
well as their observance of the principle that it is the employer who bears the burden of
establishing by substantial evidence the facts supporting a valid dismissal. Upon careful
and meticulous scrutiny of the records, however, the Court finds that the petition falls
short of these standards. We are, therefore, constrained to deny it and uphold the
decision of the POEA and the NLRC.
The Court concedes that assault, invectives, obscene insult or offensive words
against a superior and imbibing intoxicating drinks during work may constitute serious
misconduct which would justify the dismissal of an employee found guilty thereof. We
likewise agree that gross neglect of duties as shown by tardiness and absenteeism, as
well as willful disobedience and insubordination, equally deserve the same
[6]
penalty. These grounds are in fact well-supported by jurisprudence. These are not,
however, the real and crucial issues. Before even determining whether the acts of
constitutes serious misconducts, insubordination, tardiness or absenteeism, it is
necessary to determine if, in the first place, the petitioners sufficiently established these
acts by substantial evidence. On this point, the Court rules that petitioners failed to do
so.
Petitioners reliance on the telefax transmission signed by Armando Villegas is
woefully inadequate in meeting the required quantum of proof which is substantial
evidence. For one thing, the same is uncorroborated. Although substantial evidence is
not a function of quantity but rather of quality, the peculiar environmental circumstances
of the instant case demand that something more should have been proffered. According
to the account of Villegas, it appears that the incidents he was referring to transpired
with the knowledge of some crew members. The alleged assault by Gerardo Ranay on
Villegas, for instance, was supposedly witnessed by at least four other crew
members. Surprisingly, none of them was called upon to testify, either in person or
through sworn statements. Worse, Villegas himself who omitted some vital details in
his report, such as the time and date of the incidents referred to, was not even
presented as witness so that private respondents and the POEA hearing officer could
have been given an opportunity to cross-examine and propound clarificatory questions
[7]
regarding matters averred by him in the telefax transmission. Moreover, although
signed, the same was not under oath and, therefore, of dubious veracity and reliability
[8]
although admissible. Likewise, the motive is suspect and the account of the incidents
dangerously susceptible to bias since it came from a person with whom private
respondents were at odds. All told, petitioners failed to make up for the weakness of
the evidence upon which they confidently anchored the merits of their case.

Likewise, the belated submission of the report by Villegas, long after the incidents
referred to had taken place and after the complaint had been lodged by private
respondents, weighs heavily against its credibility. Petitioners did not show any
convincing reason why said report was only accomplished on September 22,
1989. They merely argued that as in criminal cases, the witness is usually reluctant to
report an incident. At any rate, with present technology, a ship out at sea is not so
isolated that its captain cannot instantly communicate with its office. It would appear
that the report, filed several months later, is but an afterthought.
Aside from petitioners failure to establish the facts constituting the grounds for
dismissing private respondents, the Court also takes into account against petitioners
their glaring omission to afford private respondents procedural due process, the
indispensable elements of which are notice and hearing. We observe that the records
are devoid of any proof indicating that the required notices were sent to respondents
and a reasonable opportunity accorded them to be heard. The POEA and the NLRC
similarly failed to find any, leading to the inescapable conclusion that the dismissal of
private respondents was even tainted with procedural infirmity.
The Court, however, notwithstanding the employers breach of procedural due
[9]
process, is disinclined to award damages in line with recent jurisprudence.
As regards petitioners contention that both the POEA and the NLRC overlooked
the alleged payments they made to private respondents, we rule that the same
deserves little consideration. The mere presentation of photocopies of two (2) RCBC
[10]
[11]
checks
and two vouchers
containing the computation of private respondents
remuneration does not conclusively establish payment. In this regard, we call attention
[12]
to our latest ruling in Jimenez v. National Labor Relations Commission, thus:
As a general rule, one who pleads payment has the burden of proving it. Even where
the plaintiff must allege non-payment, the general rule is that the burden rests on the
defendant to prove payment, rather than on the plaintiff to prove non-payment. The
debtor has the burden of showing with legal certainty that the obligation has been
discharged by payment.
When the existence of a debt is fully established by the evidence contained in the
record, the burden of proving that it has been extinguished by payment devolves upon
the debtor who offers such a defense to the claim of the creditor. xxx.
xxxxxxxxx
The positive testimony of a creditor may be sufficient of itself to show non-payment,
even when met by indefinite testimony of the debtor. Similarly, the testimony of the
debtor may also be sufficient to show payment, but, where his testimony is
contradicted by the other party or by a disinterested witness, the issue may be
determined against the debtor since he has the burden of proof. The testimony of the
debtor creating merely an inference of payment will not be regarded as conclusive on
that issue. (Underscoring supplied, citations omitted).
The existence of the checks and the supporting vouchers simply establishes the
fact that petitioners admit their monetary liability to private respondents and their
intention to pay the latters unpaid salaries, overtime pay and leave pay. To reiterate,
these documents, standing alone, do not evidence payment. There is no certainty that
these were ever delivered to, much less encashed by, private respondents. Absent any
evidence to that effect, petitioners are deemed to have failed discharge their burden of

proving their affirmative allegation of prior payment in the amount of P1,919.85 each to
private respondents in spite of the latter's mere denial of said payment.
WHEREFORE, the instant petition is hereby DISMISSED for lack of merit. The
April 19, 1993, decision of respondent National Labor Relations Commission is
hereby AFFIRMED.
SO ORDERED.
Manebo v NLRC, GR#107721; January 10, 1994; DAVIDE, JR., J.
The petitioner seeks to set aside, for having been allegedly issued with grave abuse
1
of discretion amounting to lack of jurisdiction, the Decision of 31 August 1992 of the
National Labor Relations Commission (NLRC) in NLRC Case No. L-000278-92,
entitled Christopher Maebo vs. Tritran and/or Michael Trinidad, and its
2
Resolution of 9 October 1992 denying his motion for reconsideration. The NLRC
decision affirmed the decision of the Labor Arbiter which dismissed the petitioner's
complaint for unfair labor practice, illegal suspension, and illegal dismissal.
We required the respondents to comment on the petition. The private respondents
3
and the Office of the Solicitor General complied on 19 February 1993 and 2 June
4
1993, respectively. The latter joins cause with the petitioner and prays that the
challenged decision and resolution of the NLRC be set aside and that the petitioner
be reinstated to his former position without loss of seniority rights and with back
wages. It further prays that the NLRC be granted a new period within which to file its
own comment. We thus required the NLRC to submit its own comment. After three
extensions of time within which to do so, it finally filed its Comment on 4 November
5
1993.
The petition is impressed with merit. We therefore rule for the petitioner and order his
reinstatement.
The antecedent facts are sufficiently and faithfully summarized in the Comment of the
Office of the Solicitor General:
Petitioner Christopher Maebo was hired in 1980 as a bus
conductor by RJM Bus Co. before it became TRITRAN Bus Co. In
1987, he was appointed as the bus company's comptroller in Bian,
Laguna. He was active in union activities, occupying the position of
Chief Shop Steward and representing union members in the
grievance machinery committee hearings (Ibid, p. 184; Annex B of
Annex D, Petition).
Sometime in June 1990, respondent bus company served on
petitioner notice dismissing him from the service for serious
misconduct committed against the firm's operation manager
(Record, p. 106; Annex D of Annex D, Petition). Aggrieved,
petitioner appealed the matter to the grievance machinery
committee.
On June 18, 1990, the Grievance Committee, during its hearing,
resolved to remove from petitioner's 201 file the record of
termination. It directed petitioner to report to the Personnel Office
the following day for assignment (Ibid, p. 107; Annex A of Annex D,
Petition). On June 19, 1990, the bus firm's Personnel Assistant,
Rodolfo C. Lopez reinstated petitioner to his former work (Ibid, p.
108; Annex A).
It appears, however, that the company president was dissatisfied
with the grievance committee's resolution and the Personnel

Department's order to reinstate Maebo to his former position (Ibid,

pp. 19, 114-115).
Thus, on June 21, 1990, while a scheduled Grievance Committee
Hearing was about to start, petitioner was advised by the Personnel
Manager, Florencio T. Alfonso, Jr. to see that same day the
company president at his Caloocan office. Apparently, the meeting
was arranged by the Personnel Manager, Alfonso, in order that the
bus company president may be given an opportunity to finally
approve the latter's reinstatement
(pp. 3-4, Annex 1 of Private Respondent's Comment [Annex B]).
Petitioner failed to follow instructions considering that he was then
attending, as representative of the union workers, a grievance
machinery committee hearing. Moreover, the lack of a written order
from the President requiring petitioner to see him immediately and
the unreasonableness of the demand considering that it required
him to travel a distance of 50 kms. and further that it would prevent
him from attending the grievance committee hearing, raised doubt
in petitioner's mind as to the real purpose of the verbal instruction.
The following day, June 22, 1990, the Personnel Manager issued a
memorandum requiring Maebo to explain why he should not be
dealt with administratively "for refusing to obey the repeated
instructions of the President of the Company for conference and
appropriate guidance" (Ibid, p. 16).
On June 25, 1990, petitioner filed his explanation.
In a Decision dated July 14, 1990, respondent bus company
dismissed petitioner on the ground of willful disobedience of the
order of the company president and serious misconduct committed
6
against the bus company's operations manager.
Petitioner then filed on 3 January 1991 with the Arbitration Branch, Region IV, NLRC,
a complaint for unfair labor practice, illegal suspension, and illegal dismissal with
moral damages and attorney's fees against the private respondents. The case was
docketed as NLRC Case No. RB-IV-1-3564-91.
During the initial conference, the Labor Arbiter directed the parties to submit their
position papers. In his position paper, the petitioner admitted that on 21 June 1990 he
was instructed by TRITRAN's personnel manager in Bian, Laguna, to see, that same
day, the company president who apparently disagreed with the Grievance Machinery
Committee's resolution dated 18 June 1990 and the Personnel Department's
memorandum of 19 June 1990 reinstating the petitioner to his job. He alleged that his
failure to comply with the instruction was not motivated by any ill motive to disobey
but was due to the fact that he was then attending that same day, as Chief Shop
Steward and representative of the union workers, a grievance committee conference;
that, in any case, the instruction was so untimely that it raised in him the suspicion
that it was a mere ploy to prevent him from representing the union workers in the
grievance committee hearing; that it was unreasonable and difficult to comply with as
it required him to travel a distance of fifty kilometers; that his dismissal was too harsh
a penalty considering that he had been in respondent's employ for ten years; and that
the real reason for his dismissal was his active participation in union activities.
On the other hand, the private respondents claimed in their position paper that the
petitioner's dismissal was justified considering that he was found guilty by the
company of serious misconduct and willful disobedience in its decisions of 2 June
1990 and 14 July 1990. It made a reservation to submit at a latter date testimonial
and documentary evidence.

In his Reply to the private respondent's position paper, the petitioner objected to the
private respondents' reservation because he asserts that position papers must
contain, as required under Section 2, Rule V of the NLRC Rules, allsupporting
documents, including the affidavits of witnesses. He further alleged that the findings of
TRITRAN in its decision of 2 June 1990 was superseded by the resolution of the
Grievance Committee of 18 June 1990 wherein TRITRAN agreed to reinstate the
petitioner to his former position and to remove from his 201 file the record of his
dismissal; that his failure to appear before the president did not constitute wilful
disobedience considering that the order was not work-connected. was unreasonable,
whimsical, and capricious; and that there was no showing that such failure caused
any loss or damage to TRITRAN's property or personnel.
Hearings of the case were scheduled. Sometime after the petitioner had testified on
21 May 1991, the parties agreed to submit the case for decision after they have filed
their respective memoranda. The petitioner filed his Memorandum. However, the
private respondents filed instead a Supplemental Position Paper and Memorandum
attaching thereto documentary exhibits to establish facts and defenses neither raised
nor referred to in its Position Paper, such as alleged infractions committed by the
petitioner prior to the serious misconduct and the insubordination covered by the
decisions of 2 June 1990 and 14 July 1990, respectively, like the falsification of his
report on 19 June 1988 to make it appear that he was not at the post at Carmona
when he was not, the act of allowing passengers to board respondent's buses without
tickets on 7 July 1988, and the falsification of the entry in his time card on 13 July
1989. No copy of the said Supplemental Position Paper and Memorandum was
furnished to the petitioner's counsel.
On 28 August 1991, the Labor Arbiter rendered a decision dismissing the petitioner's
7
complaint.
The Labor Arbiter found the respondent guilty of serious misconduct for having
purportedly hurled upon the operations manager "reproaching words" on 17 May
1990 and of wilful disobedience for refusing to comply with the order of the president
to see the latter on 21 June 1990. The Labor Arbiter's decision, in effect, upheld the
respondent corporation's decisions of 2 June 1990 and 14 July 1990, copies of which
were attached to the private respondents' Position Paper as Annexes "1" and "2",
8
respectively. The Labor Arbiter principally based his factual findings on TRITRAN's
Supplemental Position Paper and Memorandum.
Petitioner seasonably appealed the decision to the NLRC. In its Decision of 31 August
9
1992, the NLRC (Third Division) affirmed the Labor Arbiter's decision. A motion to
reconsider the same having been denied, the petitioner filed on 1 December 1992 the
instant special civil action for certiorari.
The petitioner alleges that the respondent NLRC committed grave abuse of discretion
amounting to lack of jurisdiction when it affirmed the decision of the Labor Arbiter
which was principally based on the Supplemental Position Paper and Memorandum
submitted by the private respondents after the case had already been deemed
submitted for resolution. He states that no copy of the Supplemental Position Paper
and Memorandum was furnished to him or his counsel, thereby depriving him of due
process. He avers that the Labor Arbiter erred in holding him liable for misconduct
and in affirming the 2 June 1990 decision of the respondent corporation dismissing
him from the service for alleged misconduct committed on the operations manager
when such dismissal had already been lifted by virtue of the resolution of the
Grievance Committee wherein he was even made to report for work on 19 June 1990.
He contends that his employer denied him due process and that the decision to
10
terminate him was a grave and patent abuse of discretion.

In their comment, the private respondents traverse the petitioner's contentions and
justify their submission of the Supplemental Position Paper and Memorandum by
claiming that it was the petitioner who preferred the "position paper method" and that
the annexes thereto were submitted for the scrutiny of counsel and the NLRC in view
of the petitioner's preference for such method. Their failure to furnish a copy thereof
to the petitioner's counsel, Atty. Marquina, was because the said counsel made "no
11
earlier notice of appearance." They insist that the directive to the petitioner to see
the company's president and general manager on 21 June 1991 was a lawful order,
non-compliance of which amounted to willful disobedience a just cause for
terminating an employee's services.
The Office of the Solicitor General agrees with the petitioner that there was a denial of
due process with respect to the admission of the Supplemental Position Paper and
Memorandum by the Labor Arbiter. It opines, however, that such defect was cured on
appeal to the NLRC which gave him a chance to rebut the additional evidence
presented by the private respondents. It mentions Section 2 of the NLRC Rules of
Procedure which provides that the Rules should be liberally construed to assist the
parties in obtaining just, expeditious, and inexpensive settlement of labor disputes,
12
and the case of Philippine Telegraph and Telephone Corp. vs. NLRC which enjoins
Labor Officials to ascertain the facts of each case speedily and objectively, eschewing
technicalities of law and procedure, all in the interest of justice.
As to the issue of whether the petitioner was dismissed for just cause, the Office of
the Solicitor General states that in order that an employer may terminate an employee
on the ground of willful disobedience to the former's orders, regulations, or
instructions, it must be established that the said orders, regulations, or instructions
are (1) reasonable and lawful, (2) sufficiently known to the employee, and (3) in
13
connection with the duties which the employee has been engaged to discharge. In
the instant case, the private respondents have not shown that the instruction or order
of the personnel manager for the petitioner to appear before the company president is
connected with the discharge of his duty as a comptroller of the company. More
pertinently, the Office of the Solicitor General observes:
Thus, the Personnel Manager vaguely defined the purpose of the
ordered meeting as one "for conference and appropriate guidance."
However, in its Supplemental Position Paper and Memorandum
(pp. 3-4), respondent company spills the truth: it was for the
purpose of providing an opportunity for the company president who
apparently objects to the Grievance Committee['s] and the
Personnel Department's separate resolutions ordering petitioner's
reinstatement to his former position, to finally approve petitioner's
14
reinstatement.
It further states that the order in question imposed an unreasonable burden on the
petitioner as it required him to travel a distance of fifty kilometers in order to plead for
the president's final approval of his reinstatement, which was unnecessary since the
18 June 1990 Minutes of the Grievance Committee and the 19 June 1990
Memorandum issued by TRITRAN's Personnel Department unconditionally ordered
the petitioner's reinstatement.
We are in substantial accord with the stand of the Office of the Solicitor General.
We wish, however, to stress some points. Firstly, while it is true that the Rules of the
NLRC must be liberally construed and that the NLRC is not bound by the
technicalities of law and procedure, the Labor Arbiters and the NLRC itself must not
be the first to arbitrarily disregard specific provisions of the Rules which are precisely
intended to assist the parties in obtaining just, expeditious, and inexpensive
15
settlement of labor disputes. One such provision is Section 3, Rule V of the New

16

Rules of Procedure of the NLRC which requires the submission of verified position
papers within fifteen days from the date of the last conference, with proof of service
thereof on the other parties. The position papers "shall cover only those claims and
causes of action raised in the complaint excluding those that may have been amicably
settled, and shall be accompanied by all supporting documents including the affidavits
of their respective witnesses which shall take the place of the latter's testimony." After
the submission thereof, the parties "shall . . . not be allowed to allege facts, or present
evidence to prove facts, not referred to and any cause or causes of action not
included in the complaint or position papers, affidavits and other documents."
For obvious reasons, delays cannot be countenanced in the settlement of labor
disputes. The dispute may involve no less than the livelihood of an employee and that
of his loved ones who are dependent upon him for food, shelter, clothing, medicine,
and education. It may as well involve the survival of a business or an industry.
In the instant case, the parties have filed their position papers and have even agreed
to consider the case submitted for decision after the submission of their respective
memoranda. Clearly then, the Labor Arbiter gravely abused his discretion in
disregarding the rule governing position papers by admitting the Supplemental
Position Paper and Memorandum, which was not even accompanied by proof of
service to the petitioner or his counsel, and by taking into consideration, as basis for
his decision, the alleged facts adduced therein and the documents attached thereto.
Compounding the error is the Labor Arbiter's arbitrary, if not capricious and whimsical,
holding that the petitioner committed serious misconduct against TRITRAN's
operation manager for which he was dismissed per TRITRAN's 2 June 1990 decision,
when, as the evidence before him clearly shows, the penalty was set aside and the
petitioner was ordered reinstated pursuant to the resolution of the Grievance
Committee.
The directive for the petitioner to go to Caloocan City to see the company president is
neither a reasonable order nor one connected with his duties. Even a wilful
disobedience thereof cannot be a valid ground for dismissal. Article 282 of the Labor
Code provides:
Art. 282. Termination by Employer An employer may terminate
an employment for any of the following causes:
(a) Serious misconduct or wilful disobedience by the employee of
the lawful orders of his employer or representative in connection
with his work; (emphasis supplied).
17
Thus, in Gold City Integrated Port Services, Inc. vs. NLRC, we ruled:
Wilful disobedience of the employer's lawful orders, as a just cause
for the dismissal of an employee, envisages the concurrence of at
least two (2) requisites: the employee's assailed conduct must have
been wilful or intentional, the wilfulness being characterized by a
"wrongful and perverse attitude"; and the other violated must have
been reasonable, lawful, made known to the employee and must
18
pertain to the duties which he has been engaged to discharge.
In the instant case, the private respondents have not even endeavored to show that
the directive or order pertained to the regular duties of the petitioner as a comptroller.
The purpose therefor was not revealed to the petitioner. It was, as wittingly or
unwittingly revealed in the Supplemental Position Paper, to provide "an opportunity
for the company president who apparently objects to the Grievance Committee['s] and
the Personnel Department's separate resolutions ordering petitioner's
19
reinstatement," to "finally approve" the petitioner's reinstatement, which was, of
course, unnecessary since the reinstatement was not subject to such final approval. It
is highly plausible that the president wanted to extract from the petitioner, as a

condition to the "final approval", an apology for his past misdeeds. This was shown in
the private respondents' Comment to the Petition thus:
We proposed that Maebo be reemployed but subject to one
condition that he should see the new company president for
20
specific instructions and to apologize for his past misdeeds.
The primary aim then of the directive was wholly unrelated to the petitioner's duties. It
was to extract a whimsical and oppressive condition. It was, as well, unreasonable
and extremely difficult to comply with since the petitioner was attending a conference
of the Grievance Committee held fifty kilometers away from where he was ordered to
go. It was clearly a peremptory summons meant to put the petitioner "in his proper
place." Disobedience thereof, even if wilful, cannot be a ground for the dismissal of
the petitioner. In any event, the petitioner's disobedience can by no means be
characterized as wilful. As correctly observed by the Office of the Solicitor General:
[T]he record shows that petitioner's failure to abide by the
Personnel Manager's instructions to see the company president
was not by reason of any ill or perverse intention to defy his
superior. Uncontradicted is the fact that at the time the petitioner
received the instruction to go to the company's president's office in
Caloocan City, he was attending as Chief Steward in a scheduled
grievance committee hearing. Surely, if petitioner was to leave for
Caloocan City to see the company president, the union workers
21
would have lost their voice in the hearing.
And even if the directive were reasonable and connected with the petitioner's duties,
his dismissal by TRITRAN on 24 July 1990 was void for lack of due process. While it
may be true that he was allowed to explain, no hearing was actually conducted. It is
settled that pursuant to Paragraph (b), Article 277 of the Labor Code and Sections 2
to 6, Rule XIV, Book V of the Rules Implementing the Labor Code:
[T]he employer is required to furnish an employee who is to be
dismissed two (2) written notices before such termination. The first
is the notice to apprise the employee of the particular acts or
omissions for which his dismissal is sought. This may be loosely
considered as the proper charge. The second is the notice
informing the employee of the employer's to dismiss him. This
decision, however, must come only after the employee is given a
reasonable period from receipt of the first notice within which to
answer the charge, an ample opportunity to be heard and defend
himself with the assistance of his representative, if he so desires.
This is in consonance with the express provisions of law on the
protection to labor and the broader dictates of procedural due
process. Non-compliance therewith is fatal because these
requirements are conditions sine qua non before dismissal may be
22
validly affected.
"Ample opportunity" connotes every kind of assistance that management must accord
the employee to enable him to prepare adequately for his defense including legal
23
representation.
WHEREFORE, the instant petition is GRANTED. The challenged decisions of the
National Labor Relations Commission of 31 August 1992 and of the Labor Arbiter of
15 August 1991 in NLRC Case No. L-000278-92
(RB-IV-1-3564-91) are hereby SET ASIDE and a new decision is hereby entered
DECLARING UNLAWFUL the dismissal of the petitioner and ORDERING the private
respondents to reinstate the petitioner to his former or equivalent position without loss
of seniority rights and with full back wages, inclusive of allowances and other benefits

or their monetary equivalent, pursuant to Article 279 of the Labor Code, subject to
deductions of income earned elsewhere during the period of illegal dismissal, if any.
Costs against the private respondents.
SO ORDERED
Sarabia Optical v Camacho, GR# 155502; june 18, 2009, QUISUMBING, J.
[1]

This is an appeal from the Decision dated September 30, 2002 of the Court of
[2]
Appeals in CA-G.R. SP No. 58803 affirming the Decision dated October 11, 1999 of the
National Labor Relations Commission in NLRC NCR CA Case No. 016418-98. The NLRC
[3]
had affirmed the Decision dated September 22, 1997 of the Labor Arbiter in NLRC NCR
Case No. 03-02049-96-A which declared Camachos dismissal from her employment
illegal.
Petitioner Sarabia Optical is a single proprietorship engaged in the optical
business and is owned and managed by petitioner Vivian Sarabia-Ong. Respondent
Jeanet B. Camacho was the branch manager of Sarabia Optical-SM Megamall at the
time of her dismissal on March 9, 1995.
Sarabia-Ong claimed that during the inventory of consigned products in the
SM Megamall Branch in August 1994, she was advised that twelve (12) pieces of
Rayban eyewear were missing. Since Camacho could not explain the missing stocks,
Camacho suggested that the costs thereof be deducted from her salary and that of her
personnel.
On February 15, 1995, Sarabia-Ong received a phone call from an employee
of the SM Megamall Branch informing her of an anomaly in the branch. In a one-onone conference with the branch personnel, she learned that almost all of them were
aware of the anomaly and they pointed to Camacho as its mastermind. They revealed
that instead of reporting the income derived from the sale of screws, solutions, and
other miscellaneous items from September to November 1994, Camacho divided it
among the branch personnel. They added that Camacho devised the practice to cover
for the deductions in their salaries due to the missing Rayban eyewear.
On March 3, 1995, Sarabia-Ong conducted an investigation and asked
Camacho to explain her side. On March 8, 1995, Camacho was dismissed
[4]
effective March 9, 1995 on the ground of loss of trust and confidence.
Camacho filed a complaint for illegal dismissal, illegal deduction, separation pay,
and attorneys fees. She claimed that sometime in 1994, Sarabia-Ong requested her to
cooperate in fabricating a case against three old employees of the SM Megamall Branch
to justify their dismissal. She refused to cooperate and offered to resign provided she
would be paid separation pay. Because of this, Sarabia-Ong fabricated a case against
her and accused her of not reporting the income derived from the sale of screws,
solutions, and other miscellaneous items from September to November 1994.
In a Decision dated September 22, 1997, the Labor Arbiter ruled that
petitioners failed to present material evidence that would support the charge against
Camacho. First, petitioners failed to present an audit report showing the inventory of
the screws, solutions, and other miscellaneous items at the time Camacho took over
the management of the SM Megamall Branch and the number of stocks that were
eventually sold. Neither were the sales invoices or purchase receipts
presented. Second, petitioners did not show that they filed a complaint with the police
authorities although the charge against Camacho amounted to qualified theft
or estafa. Third, petitioners failed to prove that an administrative investigation was
conducted since they did not present any written notice of the charge against Camacho
and her purported answer thereto. The decretal portion of the decision reads:

CONFORMABLY WITH THE FOREGOING, judgment is

hereby rendered finding complainants dismissal to be
illegal. Accordingly, complainant should be reinstated or if not
feasible because of a strained employer-employee relationship then
in lieu thereof, payment of separation pay at one (1) month per year
of service, a fraction of six (6) months being considered as one whole
year. In addition, complainant should be paid her backwages which
as of August 31, 1997 has amounted to P232,030.00.
All other claims are dismissed for lack of merit.
[5]
SO ORDERED.
Petitioners appealed to the NLRC which affirmed in toto the Labor Arbiters
finding of illegal dismissal.
Dissatisfied, petitioners elevated the matter to the Court of Appeals.
On September 30, 2002, the appellate court affirmed the NLRC decision. It
agreed with the Labor Arbiter and the NLRC that the charge against Camacho was not
[6]
satisfactorily proven. The Joint Affidavit of Glenda Navarro, Evelyn Jasmin, and
Roselle Cosep merely stated that Camacho used her position and authority and
engaged them to carry out the anomaly. Petitioners also failed to submit any proof that
they incurred losses from September to November 1994 due to the non-reporting of the
sales. If the charge against Camacho was true, then petitioners should have filed the
appropriate criminal complaint against her. Furthermore, petitioners failed to satisfy the
requirements of due process before dismissing Camacho. Although a notice of
termination was sent to Camacho, no written notice of the charge was given to her.
Petitioners now submit the following issues for our consideration:
I.
THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT
RESPONDENTS DISMISSAL FOR LOSS OF TRUST AND
CONFIDENCE WAS ILLEGAL.
II.
THE COURT OF APPEALS GRAVELY ERRED IN RULING THAT
PETITIONERS FAILED TO SATISFY THE REQUIREMENTS OF DUE
PROCESS.
III.
THE COURT OF APPEALS GRAVELY ERRED IN ORDERING THE
PAYMENT OF BACKWAGES AND SEPARATION PAY TO
[7]
RESPONDENT.
In essence, the issue is: Was Camacho dismissed for cause and with due
process?
Petitioners contend that their decision to dismiss Camacho on the ground of
loss of trust and confidence was based on the Joint Affidavit of Navarro, Jasmin, and
Cosep. These employees swore under oath that Camacho had been pocketing the
income of the SM Megamall Branch. Petitioners also aver that they observed due
process prior to dismissing Camacho from her employment. She was notified of the
charge against her, confronted with the adverse evidence, and given several
opportunities to refute the charge and explain her side.
Camacho did not file her Comment to the petition despite several directives
from this Court.
In any case, we resolve to deny the petition.
It is an established rule that in the exercise of the Supreme Courts power of
review, the Court is not a trier of facts and does not normally undertake the re-examination
of the evidence presented by the contending parties during the trial of the case
considering that the findings of facts of the Court of Appeals are conclusive and binding

[8]

on the Court. We have likewise held that factual findings of labor officials who are
deemed to have acquired expertise in matters within their respective jurisdictions are
[9]
generally accorded not only respect, but even finality, and bind the Supreme Court.
As borne by the records, the findings of facts of the Labor Arbiter, the NLRC
and the Court of Appeals, are unanimous.
To be a valid ground for dismissal, loss of trust and confidence must be based
on a willful breach of trust and founded on clearly established facts. A breach is willful if it
is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished
from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It must rest on
substantial grounds and not on the employers arbitrariness, whims, caprices or suspicion;
[10]
otherwise, the employee would eternally remain at the mercy of the employer. Further,
the act complained of must be work-related and must show that the employee concerned
[11]
is unfit to continue working for the employer.
In this case, petitioners failed to substantiate their claim that instead of
reporting the income derived from the sale of screws, solutions, and other
miscellaneous items from September to November 1994, Camacho distributed the
income among the branch personnel. The only evidence they presented was the Joint
Affidavit of Navarro, Jasmin, and Cosep which merely stated that Camacho used her
position and authority and engaged them to carry out the anomaly. Further, petitioners
did not submit any audit report which would show the inventory of the screws, solutions,
and other miscellaneous items before and after the period September to November
1994. Such audit report would have concretely shown the number of stocks sold which
Camacho did not report as income of the SM Megamall Branch. Neither did petitioners
present the sales invoices or purchase receipts of such screws, solutions, and other
miscellaneous items. If an anomaly indeed took place, petitioners could have easily
verified and proved it through an audit or inventory instead of relying on their employees
Joint Affidavit.
To boot, petitioners failed to satisfy the requirements of due process before
dismissing Camacho from her employment. Procedural due process requires the
employer to give the employee two notices: (1) notice apprising him of the particular
acts or omissions for which his dismissal is sought, and (2) subsequent notice informing
[12]
him of the employers decision to dismiss him.
Apparently, no written notice of the
charge informing Camacho of the specific act complained of and its corresponding
penalty was sent to her. If petitioners gave Camacho such notice, then the same should
have been presented as evidence and should have appeared on record.
In sum, we find that Camacho was illegally dismissed due to petitioners failure to
show adequately that a valid cause for terminating her employment exists, and their failure
to comply with the twin notice requirement.
WHEREFORE, the instant petition is DENIED. The Decision dated September
30, 2002 of the Court of Appeals in CA-G.R. SP No. 58803 is AFFIRMED.
SO ORDERED.
NASUREFCO v NLRC, GR# 122277; [G.R. No. 122277. February 24, 1998];
BELLOSILLO, J

NASUREFCO were no longer required to deliver raw sugar as a precondition to their

withdrawal of refined sugar. All they had to do was to present properly endorsed
documents chargeable against their future deliveries of raw sugar to NASUREFCO.
In line with the Raw and Refined Sugar Exchange Program, Pabiona was
appointed as Sugar Accountant-Bookkeeper. She was tasked to maintain records of all
transactions
pertaining
to
the
Raw
and
Refined
Sugar Exchange
Program, validate Raw Sugar Quedans submitted by Exchange participants prior to
issuance of the Refined Sugar Delivery Orders and prepare and issue Refined Sugar
Delivery Orders only after validation procedures have been properly complied with. The
procedures consisted of (a) substantiating the Raw Sugar Quedans by checking if these
were properly signed by the authorized quedan holders; (b) validating written reports of
the authorized surveyor in accordance with the pre-agreed scope of services, weights,
manner of weighing, calibration procedures, and the absence/presence of
representatives; (c) checking the mathematical accuracy of the quantities shown in the
quedans; and, (d) computing the refined sugar equivalent of the raw sugar exchanged
based on POL analyses/refining yield.
When the books of NASUREFCO were audited in 1990 anomalous and irregular
transactions were uncovered in the Raw Sugar Movement Report. Thus -

This is a petition for certiorari and prohibition filed by the National Sugar Refineries
Corporation (NASUREFCO) to annul the 23 June 1995 Decision of the National Labor
Relations Commission (NLRC) which affirmed that of the Labor Arbiter holding that
private respondent Susan Pabiona was illegally dismissed by NASUREFCO, and the
Resolution of 20 September 1995 denying its motion for reconsideration.
NASUREFCO is a domestic corporation engaged in sugar refinery. In January
1989 it launched its Raw and Refined Sugar Exchange Program under which clients of

NASUREFCO found Pabionas written explanation flawed, unsatisfactory. Hence,

on 31 May 1990 NASUREFCO through its Human Resource Division Officer-in-Charge
charged Pabiona with several violations of accounting policies. Pabiona was again
given the chance to air her side, which she did through a memorandum. On 2 and 3
July 1990 a formal investigation was conducted. Pabiona was advised to retain a
counsel of her choice to assist her in presenting her case. After the formal investigation,

1. On or about December 14, 1989, she prepared RSDO No. 0212 in favor of
Shantung Commercial without even seeing the corresponding RSQs or DOs. This
resulted in Shantung Commercial being able to withdraw more refined sugar than was
due them because the DOs for the raw sugar to be delivered to NASUREFCO were
marked to be served with DETERIORATED SUGAR. Deteriorated sugar is of lower
quality hence, with less refined sugar equivalent than the normal raw sugar. Involved
in the transaction were 7,031.99 piculs.
2. Sometime in October 1989, Shantung Commercial was able to withdraw refined
sugar on the strength of RSDO No. 0121 prepared by complainant. This RSDO was
issued based on the RSQ of Victorias Milling Company (VMC) for 383.05 piculs. Due
to some problems with the VMC RSQ, Shantung was required to replace
them. Complainant made it appear that the RSQ was already replaced when in fact it
was not. NASUREFCO was not able to get the raw sugar. The VMC RSQ which
complainant should have kept until replaced was later sold by Ms. C. Alfonso, a coemployee of complainant.
3. In her report on Raw Sugar Endorsements and withdrawals as of February 11,
1990, complainant made it appear that Dacongcogon Producers endorsed 18,000
piculs of raw sugar under DO No. 035 on December 28, 1989. DO No. 035 was never
endorsed on that date as it was received by NASUREFCO only on January
1990. Complainant intentionally and deliberately included the supposed endorsement
in the 1989 transactions to make it appear that Dacongcogon Producers endorsed
more than 200,000 piculs of raw sugar for the period, hence, entitled to claim a
volume incentive of PHP 1.00 per picul. Complainant also included the endorsements
made by other parties under Dacongcogon Producers to qualify it for the incentive.

NASUREFCO terminated the services of Pabiona for willful violation of company

policies, gross and habitual neglect of duties, and willful breach of trust.
Thus Pabiona filed her complaint with the Labor Arbiter for illegal dismissal. On
the other hand, NASUREFCO maintained that the dismissal was for a just cause after
proper procedures were observed, hence, legal and valid.
On 26 November 1993 Labor Arbiter Dennis D. Juanon sustained Pabiona and
ruled that her dismissal was illegal because To our considered opinion, she merely record (and) reports whatever transactions
ought to be recorded by her as such personnel. Whatever defects in number or
quality of the goods transacted by the corporation is no longer within the ambit of her
functions.
She, however, as projected in the testimony of respondents personnel, was
exercising functions which to our mind, appears to be more than x x x (the) ordinary
functions of an accountant-bookkeeper. For this, we believe that whatever mistakes
made in the process of performance of her work as designated, are more than her
ordinary functions, (hence) she cannot be ordinarily blamed.
xxxx
In resume, it is our considered opinion that while complainant may have committed
some neglect of duty however, the same was not within her ordinary functions as per
job description x x x xEvidences (sic) adduced by either party show that if at all there
was negligence that may have been committed in the performance of her work,
absent was the character of regularity in committing negligence.
xxxx
Complainant herself to reiterate, admits that she may be negligent yet it was not gross
and habitual; that her acts in violating company policies as basis for her dismissal
[1]
may be viewed by respondent as breach of trust, yet the same is not willful.
On appeal NASUREFCO insisted that the Labor Arbiter committed serious errors
in his findings of fact and appreciation of evidence and that his conclusion was contrary
to law, jurisprudence and the evidence on record.
But the NLRC upheld the Labor Arbiter and ruled that under the Raw and Refined
Sugar Exchange Program a client of NASUREFCO was allowed to withdraw refined
sugar even if it had not yet delivered the corresponding raw sugar provided a properly
endorsed Raw Sugar Quedan or Delivery Order was presented. After
examination and validation of the sugar quedan, acorresponding Refined Sugar
Delivery
Order
was
issued
to
the
client
allowing withdrawal of refined sugar from NASUREFCOs warehouse. The Refined
Sugar Delivery Order was the sole document that enabled a client to withdraw refined
sugar. The examination and validation of all these procedures rested with Pabiona. The
NLRC thus affirmed the Labor Arbiter After examining both complainants and respondents evidence, We find that the
infractions imputed to the complainant are not gross and habitual, but rather her
inability to exercise due diligence in the performance of her duties or her failure to
follow-up transactions and make the necessary correction on the records or report
she prepares. The infractions are not deliberate and intentional on the part of the
complainant with full intent to cause great damage and prejudice to the respondent. In
fact, the latter failed to prove that irreparable damage was incurred due to the
negligent acts of the complainant. Neither did we find intent for personal gain when
complainant committed these acts. Respondent did not submit any evidence that

complainant benefited from these infractions. On the other hand, we find that
complainant acted in good faith when she performed her duties which led to these
omissions attributed to her. In fine, we could conclude that complainant was
negligent, but not gross and habitual in her record keeping, but this does not
constitute a sufficient ground to cause her termination.
With the denial of its motion for reconsideration, NASUREFCO is now before us
imputing grave abuse of discretion on the part of NLRC.
Pabiona's duties, according to her Job Value Contribution Statement, consist of 1. Maintaining records of all transactions pertaining to the Raw and Refined Sugar
Exchange Program.
2. Validating Raw Sugar Quedans submitted by Exchange Program participants prior
to issuance of Refined Sugar Delivery Order. Validation procedures are as follows:
a. Substantiate the Raw Sugar Quedans by checking if quedans are properly signed
by authorized quedan holders;
b. Validate written reports of the authorized surveyor on polarization analyses,
compliance of surveyor in accordance with pre-agreed scope of services, weights,
manner of weighing, calibration procedures, the absence/presence of
representatives;
c. Check mathematical accuracy of the quantities shown in the quedans; and
d. Compute the refined sugar equivalent of the raw sugar exchanged based on POL
analysis/Refining yield.
3. Preparing Refined Sugar Delivery Orders (RSDO) after validating procedures.
The Labor Arbiter found that although Pabiona was guilty of neglect of duty, the
duties which she performed and of which she was being charged of neglect, were not
within her ordinary functions as Sugar Accountant-Bookkeeper. The Labor Arbiter
ratiocinated that as Pabiona merely recorded transactions that ought to be recorded,
whatever defects in the quantity or quality items transacted were no longer her
responsibility.
For its part, NLRC found that Pabionas infractions were not gross nor habitual but
that she merely failed to exercise due diligence in performing her duties, forgot to follow
up transactions and make necessary corrections on the records and reports she
prepared. Neither were the infractions deliberate nor intentional as NASUREFCO failed
to prove intent on the part of Pabiona to personally gain from the transactions; in other
words, her infractions were in good faith.
The preparation and validation of documents for purposes of withdrawing refined
sugar from NASUREFCO's warehouse involve trust and confidence. It is only through
the issuance by Pabiona of a Refined Sugar Delivery Order that the planters could avail
of the refined sugar of NASUREFCO.
The rule is settled that if the employee is guilty of breach of trust or that his
employer has justifiable reason to distrust him, the labor tribunal cannot justly deny the
[2]
freedom and authority to dismiss his employee.
The basic premise for dismissal on the ground of loss of confidence is that the
employee concerned holds a position of trust and confidence. It is the breach of this
trust that results in the employers loss of confidence in the employee. Under Art. 282
of the Labor Code, as amended, loss of confidence would be the result of fraud or willful

breach by the employee of the trust reposed in him by his employer or duly authorized
representative, a just cause for termination. It cannot be gainsaid that the breach of
[3]
trust must be related to the performance of the employee's functions.
Contrary to the findings of the Labor Arbiter and the NLRC, the infractions
committed by Pabiona were directly within the purview of her job description. It was
only through her active participation and involvement in the illicit infringement of the
companys accounting procedures that some clients of NASUREFCO were able to
withdraw refined sugar in larger quantities to the prejudice of the latter.
[4]
Neglect of duty, to be a ground for dismissal, must be both gross and habitual. In
the instant case, Pabionas neglect of duty was gross. As her position related to money
matters,
she
was
expected
and
required to be extra vigilant in the performance of her job as it involved the financial
interest of the company. She was also habitually remiss in her duties. She issued
a Refined Sugar Delivery Order to Shantung Commercial without first examining the
corresponding Raw Sugar Quedan and Delivery Order. Consequently, Shantung
Commercial was able to withdraw a larger quantity of refined sugar than what was
allowable to it. In another instance, Pabiona again issued a Refined Sugar Delivery
Order to Shantung Commercial without the corresponding Raw Sugar Quedan. Thus,
NASUREFCO was not able to collect raw sugar from Shantung Commercial equivalent
to the refined sugar it had withdrawn. Thirdly, Pabiona made it appear that in 1989
Dacongcogon Producers endorsed more than 200,000 piculs of raw sugar to
NASUREFCO thereby allowing it to qualify in the Volume Incentive Program under
which NASUREFCO would pay P1.00 per picul of raw sugar to every planter that
endorsed 200,000 piculs or more of raw sugar to NASUREFCO. The fact that
NASUREFCO did not suffer losses from the anomalies committed by Pabiona because
of timely discovery does not excuse the latter as she was very much aware that her
acts would be greatly prejudicial to NASUREFCO.
In fine, we hold that the dismissal of Pabiona as Sugar Accountant-Bookkepper
was for a just and valid cause and that NASUREFCO faithfully observed procedural
due process in effecting her dismissal.
WHEREFORE, the instant petition is GRANTED. The decision of public
respondent National Labor Relations Commission of 23 June 1995 affirming the
decision of the Labor Arbiter of 26 November 1993 which found the dismissal of
respondent Susan Pabiona to be illegal, and the Resolution of 20 September 1995
denying NASUREFCOs motion for reconsideration are REVERSED and SET
ASIDE; consequently, the complaint of respondent Susan Pabiona filed with the Labor
Arbiter is DISMISSED. No costs.
SO ORDERED.
Surigao del Norte v NLRC, GR# 125212; [G.R. No. 125212. June 28, 1999]; YNARESSANTIAGO, J
[1]

This special civil action for Certiorari seeks to annul the Resolution, dated January
31, 1996, of the Fifth Division of the National Labor Relations Commission in NLRC
Case No. M-001940-94, ordering petitioner cooperative to reinstate private respondent
Elsie Esculano (hereinafter referred to as private respondent), without loss of seniority
rights and to pay backwages and allowances, plus attorneys fees; as well as the
[2]
Resolution, dated April 30, 1996, denying petitioners Motion for Reconsideration. The
[3]
challenged ruling reversed the Decision of the Labor Arbiter, dated March 7, 1994,
which declared private respondents dismissal as valid and legal.
The facts of the case are as follows:

On December 3, 1991, a former employee of petitioner cooperative, Cosette O.

[4]
Quinto, sent a letter of even date addressed to its General Manager, petitioner
Eugenio A. Balugo, with copies furnished to petitioner cooperatives Board of Directors
and National Electrification Administration Project Supervisor, Engr. Decoroso B.
Padilla. The contents of her letter are hereby reproduced, as follows
December 3, 1991
MR. EUGENIO A. BALUGO
General Manager
SURNECO
Surigao City
Dear General Manager:
This is in reference to my nine (9) years continuous service with SURNECO.
Last 1988, I decided to be separated with (sic) SURNECO due to my pressing
personal problems. Considering my faithful and loyal services with SURNECO, I am
supposed to be entitled with (sic) separation benefits and incentives.
Hence, I am humbly requesting for consideration that I may be granted with
separation benefits and all other incentives due for (sic) me.
Hoping for your very fine consideration.
Thank you very much.
Very truly yours,
(signed)
COSETTE O. QUINTO
cc:
1. The Board of Directors
SURNECO
2. Engr. Decoroso B. Padilla
NEA Project Supervisor
No action was taken on this matter by either petitioner Balugo, petitioner cooperatives
Board of Directors or NEA Project Supervisor.
Nearly four months later, or on March 30, 1992, private respondent Elsie
[5]
Esculano, being then the Personnel Officer of petitioner cooperative sent a letter to
petitioner Balugo regarding Quintos letter-request, after the latter asked her to review
her case. Attached to her letter was a report containing her findings and
recommendations. Copies of the letter were furnished the following: file, PS and 201.
In her attached report, private respondent concluded that petitioner cooperative
had not properly accorded Quinto due process before terminating her services,
enumerating the circumstances evidencing such lack of due process. Thus, private
respondent recommended that petitioner cooperative grant Quinto separation pay,
otherwise, the latter would be entitled to reinstatement without loss of seniority rights
and other privileges and benefits.
Meanwhile, on July 2, 1992, with no action taken by petitioner cooperative on her
[6]
letter-request, Quinto filed a Complaint
for Illegal Dismissal with prayer for
Reinstatement and Payment of Full Backwages, Damages and Attorneys Fees against
petitioner cooperative before the Surigao Provincial Extension Unit of the Department
of Labor and Employment. Without a doubt, the Complaint was based largely on the
report submitted to petitioner Balugo by private respondent. Indeed, attached to
[7]
Quintos Position Paper was a copy of said report. The Position Paper, itself,
extensively quoted portions of private respondents report, particularly her finding of lack
of due process in the termination of Quinto and her recommendation for the grant of

separation pay. While not quoted, the narration of antecedent facts showing illegal
dismissal as well as the grounds supporting the finding thereof, appearing in private
respondents report, were also adopted by Quinto.
Quintos case was, however, dismissed on October 22, 1992, for being barred by
prescription.
On account of the filing of the illegal dismissal case against petitioner cooperative,
based largely on private respondents report, petitioner Balugo issued a
[8]
Memorandum to private respondent on November 27, 1992, the contents of which
are hereby reproduced, as follows
27 November 1992
MEMORANDUM NO. 063
Series of 1992
To : MS. ELSIE B. ESCULANO
Personnel Officer
SUBJECT : Submission of Written Explanation
Appended to the complaint of Ms. Cosette O. Quinto against the company was your
internal memorandum addressed to the undersigned.
You were never commissioned by management to make a review of Ms. Quintos
case as the company felt that the latter had already admitted her dismissal from the
service as evidenced by her letter of December 3, 1991.
For no apparent reason, and with no one authorizing you to review the case of said
Miss Quinto, you proceeded to do so. What made the matter worse is that you
apparently furnished Miss Quinto with a copy thereof. Necessarily, Miss Quinto
utilized your alleged recommendation against the company. Fortunately, however, the
NLRC dismissed the complaint. It is, however, on appeal but the appeal is still
grounded on your unauthorized recommendation.
Your unauthorized action has dragged the company into a protracted litigation not to
mention the unnecessary expense that the company had to spend to defend itself.
In this connection, therefore, you are directed to explain in writing within 72 hours
from receipt hereof why no disciplinary action shall be taken against you for acts
unbecoming of a ranking employee and for acts prejudicial to the best interest of the
company.
For compliance.
(signed)
EUGENIO A. BALUGO
General Manager
Noted by:
CIRIACO B. MESALUCHA
NEA Project Supervisor
Cc: The SURNECO Board
Atty. Catre
DOLE
file
201 file
[9]

Private respondent submitted her Written Explanation to petitioner Balugo on

December 2, 1992. She reasoned out that it was inherent in her job as Personnel
Officer to assist Management in formulating and evaluating plans, policies and
procedures on personnel related matters, and recommend to Management and (the)
Board of Directors wage, salary and other benefits. She referred to her case review as

a feedback on a problem with the corresponding recommendation to Management to

take corrective measures. Private respondent also drew attention to the fact that
management took eight (8) months to react to her review of Quintos case and opined
that perhaps she was being used as a scapegoat. She also said that the protracted
litigation could have been avoided if management had exercised its prerogatives in
strategic planning and decision-making. To be sure, the tone of private respondents
Written Explanation was far from apologetic.
[10]
On December 15, 1992, petitioner Balugo wrote another letter
to private
respondent requesting her to inform the office whether or not she had additional
evidence to present apart from her written explanation. She was there informed that if
management does not hear from her within three (3) days, they would consider her
case submitted for resolution.
[11]
Private respondent sent in her reply on December 18, 1992, stating that she
had no idea that she had a case and requesting for information thereon.
Petitioner cooperative, however, through its Board of Directors, proceeded to act
on the case of private respondent and on February 6, 1993, issued a
[12]
Resolution
terminating the services of the latter. The Board found that private
respondent furnished Quinto with a copy of her internal memorandum addressed to
petitioner Balugo, noting that private respondent never denied having done the same;
that as a result of such internal memorandum, Quinto was emboldened to file a case
for illegal dismissal against the cooperative, using the memorandum of private
respondent as basis; that this dragged the cooperative into an unnecessary labor case
and exposed it to tremendous expenses for its defense. According to the Board, it was
lamentable that private respondent, whose duty was to protect the interest of the
cooperative, was the one who provided Quinto with weapons and ammunition to wage
a war against the cooperative.
The Board also found that private respondent prepared the said memorandum
without having been commissioned by management; that she undertook a review of
Quintos case simply because the latter personally talked to her to review the
same. According to management, the review, apart from being unauthorized, was
unnecessary since as early as December 3, 1991, Quinto herself admitted that she
decided to be separated from Surneco due to (my) pressing personal problems.
The Board, thus, found private respondents act of releasing and/or divulging the
contents of her internal memorandum to Quinto as contrary to norms of decency as far
as protection of the interest of the cooperative is concerned as well as violative of
Section 9 of their Code of Ethics and Discipline, which provides as follows
9-2.2 Without proper authority, revealing, releasing or divulging confidential
[13]
information to individuals other than authorized persons.
On the other hand, it found private respondents unauthorized review of the case
of Quinto, merely on the basis of the latters request, as violative of Section 10 of their
Code of Ethics and Discipline, which provides as follows
10-2.1 Having any engagement, participation or involvement, direct or indirect, in any
transaction involving any person, firms, corporation or any business, or other coops,
[14]
where such act is in conflict with or is improper/undesirable to interest of the REC.
The Board concluded that

Certainly, advancing the interest of Miss Quinto instead of the Cooperative is an

undesirable or improper conduct which merits the imposition of sanction. The
respondent is a confidential officer of the Cooperative being the Personnel
Officer. Her actuations as aforecited does not merit the continuation of the confidence
reposed on her as such.
In fine, we find the respondent guilty of the offense charged, and considering the
prejudice she has caused to the Cooperative, this Board hereby imposes the penalty
[15]
of dismissal from the service effective 17 February 1993.
[16]

The Board Resolution was followed by a letter

from petitioner Balugo, dated
February 15, 1993, notifying private respondent that she had been terminated from the
service for cause, effective at the close of office hours on February 19, 1993.
On March 2, 1993, private respondent filed a Complaint for illegal dismissal,
reinstatement with backwages, service incentive leave and moral damages before the
Surigao Provincial Extension Unit, Regional Office No. 10, Department of Labor and
[17]
Employment. A similar Complaint was filed on April 30, 1993 by private respondent
with the Sub-Regional Arbitration Branch No. X of the NLRC, as Case No. SRAB 1004-01020-93. Proceedings were had on this second Complaint.
[18]
Petitioner cooperative filed its Answer to the Complaint on May 12, 1993 and,
with no settlement arrived at, the Labor Arbiter directed the parties to file their
[19]
respective Position Papers. Additionally, private respondent filed her Complainants
[20]
Affidavit Re: Damages, in support of her prayer for moral damages. To this, petitioner
[21]
cooperative filed its Comments and Rejoinder.
On March 7, 1994, the Labor Arbiter, Hon. Marissa Macaraig-Guillen, rendered
[22]
her Decision declaring private respondents dismissal as valid and legal but ordering
petitioner cooperative to pay the latter P3,000.00 as financial indemnity for not having
provided private respondent with a hearing to air her side and for not complying with
the one month notice requirement provided for in Batas Pambansa Blg. 130.
A copy of the Decision was received by private respondents counsel, Atty. Enrique
Tandan, on March 22, 1994. On April 5, 1994, he filed, by registered mail, a Notice of
[23]
Appeal, which was one day late from the last day to file appeal. On April 8, 1994,
[24]
however, Atty. Tandan filed a Manifestation
explaining that he was not able to file
the Notice on April 4, 1994, a Monday, because typhoon Besing hit Surigao City on that
date, for which reason the Post Office was closed. Attached to his Manifestation was a
[25]
Certification issued by Zosima M. Lagura, Officer-in-Charge of the Philippine Postal
Corporation, Region X, Surigao City, confirming that they had no official transaction on
April 4, 1994 because of typhoon Besing.
On July 29, 1994, however, the NLRC dismissed the appeal of private respondent
[26]
for having been filed out of time.
Private respondent promptly filed a Motion for
[27]
Reconsideration, dated September 12, 1994, in which she reiterated the contents of
their aforesaid Manifestation as well as the Certification from the Surigao Post Office.
Finally, on January 31, 1996, the NLRC issued its now questioned
[28]
Resolution reinstating private respondents appeal, setting aside the Decision of the
Labor Arbiter and entering new judgment declaring private respondent as having been
illegally dismissed. The dispositive portion of the questioned Resolution provides, as
follows
WHEREFORE, foregoing considered, the decision appealed from is hereby SET
ASIDE AND VACATED and a new one entered declaring complainant illegally
dismissed. Respondent is directed to reinstate complainant to her previous position
without loss of seniority rights, and to pay backwages and allowances computed from

the date of her dismissal until duly reinstated, plus attorneys fees equivalent to 10% of
the total monetary awards.
[29]
SO ORDERED.
[30]

Petitioners filed their Motion for Reconsideration dated February 23, 1996, to
[31]
which private respondent filed her corresponding Opposition
dated February 29,
[32]
1996. On April 30, 1996, the NLRC issued its second questioned Resolution denying
petitioners Motion for Reconsideration.
[33]
Hence, the instant Petition
charging the NLRC with having acted with grave
abuse of discretion in reinstating the appeal of private respondent and in declaring
private respondents dismissal as illegal.
On the first issue, We find that the NLRC did not abuse its discretion in reinstating
the appeal of private respondent. Petitioners argue that since private respondents
Notice of Appeal was filed late, the same should not have been entertained. In Kathy[34]
O Enterprises vs. National Labor Relations Commission, however, it was explained
that -When proper, no serious impediment bars the allowance of tardy appeals under the
Rules of Court in recognition of this Courts inherent power to suspend adjective
rules. It is a different matter, however, when the period to appeal is provided by
statute, as in labor cases. For obvious reasons, this Court cannot ordinarily suspend
the statutes operation. Article 223 of the Labor Code expressly provides
that: [d]ecisions, awards or orders of the Labor Arbiter are final and executory unless
appealed to the Commission by any or both parties within ten (10) calendar days from
receipt of such decisions, awards or orders. While Section 1 of Rule VI of the New
Rules of Procedure of the National Labor Relations Commission provides that [I]f the
10th day falls on a Saturday, Sunday or a holiday, the last day to perfect the appeal
shall be the next working day. Nevertheless, if only to be able to dispense with
substantial justice, strict observance of the period to appeal may not be
exacted. Thus, in Firestone Tire and Rubber Co. of the Philippines v. Lariosa (148
SCRA 496, 504), an appeal in a labor dispute was given due course despite the lapse
of fourteen (14) days from notice of the decision, due to the fact that the Notice of
Decision received by Lariosas lawyer advised the parties that the appeal could be
taken to the NLRC within ten (10) working days - not calendar days from notice of the
decision. For the same reason was the appeal in Chong Guan Trading v. NLRC (172
SCRA 831, 839) allowed. While in City Fair Corporation v. NLRC (243 SCRA 572,
576), we ruled that the NLRC did not commit grave abuse of discretion when it
entertained an appeal filed one (1) day late considering that the facts and
circumstances of the case warrant liberality considering the amount and the issue
involved. (underscoring, Ours)
As in City Fair Corporation, cited above, We find the NLRCs reinstatement of the appeal
filed merely one day late far from an abuse of discretion. Liberality in labor cases, alone,
considering further that the issue is illegal termination, justifies such reinstatement.
Then, too, private respondent adequately explained the one-day delay in filing as
occasioned by typhoon Besing, which caused the Surigao Post Office to close on the
th
fateful 10 or last day for her to file her appeal. Petitioners contention that the
Certification filed by private respondent in support of her explanation should not be
given evidentiary value for not having been signed by the issuing Officer-in-Charge of
[35]
the Surigao City Post Office, fails in light of the duly signed copy
We find in the
records before the NLRC.

We now come to the more important issue of whether or not petitioner cooperative
was guilty of illegal dismissal. In dismissing private respondent, petitioner cooperative
relied on the following two grounds: (1) serious misconduct based on private
respondents unauthorized review of Quintos case; and (2) loss of confidence because
of private respondents breach of the rules of confidentiality, by furnishing Quinto a copy
[36]
of her internal memorandum.
After a thorough examination of the records, We find no grave abuse of discretion
on the part of the NLRC in finding that private respondent was illegally dismissed.
First, there is no basis for petitioner cooperatives charge of serious misconduct
on the part of private respondent. Misconduct is improper or wrong conduct. It is the
transgression of some established and definite rule of action, a forbidden act, a
dereliction of duty, willful in character, and implies wrongful intent and not mere error in
[37]
judgment.
Tested by these standards, private respondents review of Quintos case hardly
qualifies as serious misconduct.
As acknowledged by petitioners, private respondent, as Personnel Officer, holds
[38]
a managerial position.
As such, her authority is not merely routinary or clerical in
[39]
nature but requires independent judgment.
Indeed, those occupying managerial
positions are considered vested with a certain amount of discretion and independent
[40]
judgment.
It is established that Quinto was a former employee of petitioner cooperative who
was asking for a reconsideration of her request for separation pay benefits. It cannot
be denied that this matter, i.e., recommendations for separation pay benefits, is within
private respondents line of work as Personnel Officer. Thus, when Quinto approached
private respondent to request for assistance on her case, it was acceptable for the latter
to act thereon even if the first request of Quinto was not addressed to her but to the
General Manager. As Personnel Officer, private respondent could very well take charge
of matters involving employees, even former ones, and proceed to make
recommendations thereon. This is precisely what private respondent did. To require
private respondent to wait for management authorization before acting on matters
already obviously within her job jurisdiction would be tantamount to making her a mere
rank and file employee stripped of discretionary powers.
Petitioners claim that in proceeding with her alleged unauthorized review of
Quintos case, private respondent violated Section 10-2.1 of their Code of Ethics which
proscribes employees from (H)aving any engagement, participation or involvement,
direct or indirect, in any transaction involving any person, firms, corporation or any
business, or other coops, where such act is in conflict with or is improper/undesirable
[41]
to interest of the (corporation). We find this argument devoid of merit. Indeed, there
is no transaction, whatsoever, involved in private respondents review of Quintos
case. Neither may private respondent be absolutely proscribed from taking the side of
labor, Quinto in this case, in her review of personnel cases.
All told, We agree with the NLRC that private respondent functioned within the
sphere of her job when she acted on Quintos request and drew recommendations
thereon. Stated simply, private respondent was merely doing her job. We fail to see any
transgression of established and definite rule of action, any forbidden act, any
dereliction of duty, willful in character, nor wrongful intent on the part of private
respondent as to hold her liable for serious misconduct.
Neither do We find private respondents dismissal justified on the basis of loss of
confidence. To be a valid ground for dismissal, loss of trust and confidence must be
[42]
based on a willful breach of trust and founded on clearly established facts. A breach
is willful if it is done intentionally, knowingly and purposely, without justifiable excuse,
as distinguished from an act done carelessly, thoughtlessly, heedlessly or

inadvertently. It must rest on substantial grounds and not on the employers

arbitrariness, whims, caprices or suspicion, otherwise, the employee would eternally
[43]
remain at the mercy of the employer.
Petitioners basis for claiming loss of confidence is private respondents alleged act
of furnishing Quinto a copy of her internal memorandum. We have searched the records
and found no direct proof that private respondent did furnish a copy of her report to
Quinto. On the other hand, We agree with the NLRC that Quinto could have very well
obtained her copy from other sources. In other words, that private respondent allowed
Quinto to obtain a copy of her report has not been clearly established. As such,
petitioners cannot validly rely on loss of confidence as a ground to dismiss private
respondent.
It could be argued that, as found by the Labor Arbiter, private respondent should
have maintained the secrecy and confidentiality of her report by furnishing the same
[44]
only to petitioner Balugo. Yet, in furnishing file, PS and 201 with copies of her report,
private respondent can hardly be said to have circulated the same, as concluded by
the Labor Arbiter. If at all, private respondent can only be said to have acted carelessly,
thoughtlessly, heedlessly or inadvertently, and not intentionally, knowingly, purposely,
or without justifiable excuse as to make her guilty of a willful breach of trust.
WHEREFORE, premises considered, the Petition is DISMISSED for lack of
merit. The Resolutions of the National Labor Relations Commission dated January 31,
1996 and April 30, 1996 are hereby AFFIRMED. No pronouncement as to costs.
SO ORDERED.
Caoile v NLRC, GR# 115491; [G.R. No. 115491. November 24, 1998];
QUISUMBING, J.
This special action for certiorari seeks to annul the Resolution of the Fifth Division
[1]
of the National Labor Relations Commission dated December 6, 1993 in NLRC Case
No. M-00123-93 (Case No. RAB- 09-11-00303-92) dismissing petitioner's complaint for
illegal dismissal and money claims, and its Resolution dated March 7, 1994 denying
petitioner's Motion for Reconsideration.
Petitioner Alejandro Caoile was employed by private respondent Coca-Cola
Bottlers Philippines, Inc. ("CCBPI") as an Electrician Data Processing (EDP) Supervisor
in its Zamboanga plant, but was later dismissed on the ground of loss of trust and
confidence for his involvement in the anomalous encashment of check payments to a
contractor. Contesting the ground for his dismissal, petitioner filed a complaint for illegal
dismissal and money claims against private respondents CCBPI and its officers, Rene
P. Horrileno, the Plant Manager, and Noriel B. Enriquez, the Plant Finance Manager.
The facts as culled from findings on record below reveal the following:
On June 6, 1992, private respondent CCBPI, through the local plant management,
contracted the services of Mr. Redempto de Guzman for the installation of a Private
Automatic Branch Exchange (PABX) housewiring in the plant premises for the sum
of P65,000.00. Since the project fell under the direct supervision of petitioner, all cash
advances by the contractor were course through him.
On June 13, 1992, Mr. De Guzman, the contractor, requested for an initial cash
advance of P10,000.00. Petitioner caused the preparation of the Payment Request
Memo (PRM) in the amount of P15,000.00 and the issuance of Bank of the Philippine
Islands (BPI) Check No. 878306 in the amount of P15,000.00. After securing the
endorsement of the contractor, petitioner encashed the check with the plant teller Mr.
Dominador S. Pila and handed over P10,000.00 to Mr. De Guzman while retaining the

amount of P5,000.00 for himself. When queried by Mr. De Guzamn about

the P5,000.00, complainant replied that it was for the higher ups as arranged by Mr.
Arthur Soldevilla, an alleged partner of Mr. de Guzman.
The contractor requested for second and third cash advances on June 23, 1992
and June 30, 1992 in the amounts of P5,000.00 and P10,000.00 respectively. As in the
first cash advance, petitioner caused the preparation of BPI Check No. 878350 dated
June 23, 1992 and BPI Check No. 010355 dated June 30, 1992 in the amounts
of P10,000.00 and P15,000.00 respectively. After securing the endorsements of the
contractor the requested cash advances while retaining for himself the difference
of P10,000.00.
After the project was completed, the contractor requested payment of the balance
of the contract price in the amount of P25,000.00. Petitioner caused the issuance of
BPI Check No. 010499 dated July 8, 1992 in the amount of P24,350.00 (after deducting
1% of the total contact price by way of witholding tax). As in the earlier instances,
petitioner secured the endorsement of the contractor, encashed the check with the
teller, then handed over to the contractor only P19,350.00 while retaining fore himself
the amount of P5,000.00.
The contractor was later requested to do additional services no longer included in
the original contract. His original quotation for the additional services
was P8,000.00. However, this was increased to P8,500.00 upon advice of
petitioner. Upon completion of the additional project, petitioner caused the issuance of
BPI Check No. 01530 dated July 9, 1992, and after securing the endorsement of the
contractor, petitioner encashed the check and delivered P8,000.00 to the contractor
and retained P500.00 for himself.
On September 4, 1992, Mr. de Guzman executed an affidavit exposing the
fraudulent acts perpetrated by petitioner, which prompted the company to conduct an
investigation. On October 1, 1992, petitioner was temporarily prevented from
performing his usual duties and functions, but was required to report daily from Monday
to Friday from 8:00 a.m. to 12:00 noon and from 1:30 p.m. to 5:30 p.m. with full pay.
On October 7, 1992, petitioner was served a Notice of investigation to take place
on October 13, 1992 at 2:00 p.m. in the plant conference room. During the investigation,
petitioner admitted that the initials in the check vouchers were his but denied having
encashed the checks and delivering the cash payments to the contractor. However,
GM Secretary Carmencita B. Macasinag and the teller, Mr. Dominador Pila, confirmed
the fact that complainant personally handled the deliveries of the cash payments of
advances made to the contractor. It was established through the testimony of Mrs.
Macasinag and Mr. Pila that petitioner personally withdrew the checks from the GM
Secretary and had them encashed with the teller after Mr.de Guzman has endorsed
the same.
The result of the investigation, with its recommendation for dismissal of petitioner,
was submitted by Noriel B. Enriquez, the Plant Finance Manager, to Mr. Rene P.
Horrilleno, the Plant Manager, who forwarded the same to Mr. Mariano A. Limjap,
Senior Vice-President and Administration Director in Manila. On November 12, 1992,
Mr. Limjap, issued an Inter-office Memorandum sustaining the findings and
recommendation of the local plant management for the termination of complainant from
his employ as EDP Supervisor on the grounds of grave misconduct and dishonesty
considering that his position as EDP Supervisor is bestowed with the highest trust and
confidence by the respondent as may be seen from the description of his duties and
responsibilities.
As a consequence of his dismissal, petitioner filed a compliant for illegal dismissal
with damages before the Regional Arbitration Branch IX, Zamboanga City, on
November 27, 1992. Efforts towards an amicable settlement failed. After the

[2]

submission of the respective position papers of the parties, the Labor Arbiter rendered
[3]
a decision dated February 17, 1993 finding that petitioner was illegally dismissed and
ordering his reinstatement to his former position without loss of seniority or to a
substantially equivalent position without loss of seniority rights; the payment of
backwages for two (2) months in the amount of P26,400.00, unpaid 14th and 145th
month pay and other benefits for the year 1992 rightfully earned by petitioner; moral
damages in the amount of P20,000.00 and exemplary damages in the amount
of P20,000.00. All other money claims were dismissed for lack of merit.
Dissatisfied with the decision, private respondents appealed to NLRC which, in its
questioned Resolution dated December 6, 1993, reversed the Labor Arbiter's
[4]
decision. In the said Resolution, the NLRC held that petitioner committed acts
constituting a breach of trust and confidence reposed on him by his employer, thereby
[5]
justifying his dismissal. His motion for reconsideration having been denied, petitioner
[6]
filed the instant petition before us.
At issue is whether or not the NLRC committed grave abuse of discretion
amounting to lack or excess of jurisdiction in reversing and setting aside the Labor
Arbiter's decision finding private respondents guilty of illegal dismissal.
We find no cogent reason to depart from the ruling of the NLRC.
Law and jurisprudence have long recognized the right of employers to dismiss
employees by reason of loss of trust and confidence. As provided for in the Labor Code,
"Art. 282. An employer may terminate an employment for any of the following causes:
x x x (c) Fraud or willful breach of the trust reposed in him by his employer or his duly
authorized representative. x x x." In the case of supervisors or personnel occupying
positions of responsibility, this Court has repeatedly held that loss of trust and
[7]
confidence justifies termination. Obviously, as a just cause provided by law, this
ground for terminating employment, springs from the voluntary or willful act of the
employee, or "by reason of some blameworthy act or omission on the part of the
[8]
employee".
Loss of confidence as a just cause for termination of employment is premised
from the fact that an employee concerned holds a position of trust and
[9]
confidence. This situation holds where a person is entrusted with confidence on
delicate matters, such as the custody, handling, or care and protection of employer's
[10]
property. But, in order to constitute a just cause for dismissal, the act complained of
must be "work-related" such as would show the employee concerned to be unfit to
[11]
continue working for the employer.
Now it must be noted the recent decisions of this Court has distinguished the
treatment of managerial employees from that of rank-and-file personnel, insofar as the
application of the doctrine of loss of trust and confidence is concerned. Thus with
respect to rank-and-file personnel, loss of trust and confidence as ground for valid
dismissal requires proof of involvement in the alleged events in question, and that mere
[12]
uncorroborated assertion and accusations by the employer will not be sufficient. But,
as regards as a managerial employee, mere existence of a basis for believing that such
employee has breached the trust of his employer would suffice for his
[13]
dismissal.
Hence, in the case of managerial employees, proof beyond reasonable
doubt is not required, it being sufficient that there is some basis for such loss of
confidence, such as when the employer has reasonable ground to believe that the
employee concerned is responsible for the purported misconduct, and the nature of his
participation therein renders him unworthy of the trust and confidence demanded by his
[14]
position.
In the present case, petitioner is not an ordinary rank-and-file employee. He is the
EDP Supervisor tasked to directly supervise the installation of the PABX housewiring
project in respondent company's premises. He should have realized that such sensitive

position requires the full trust and confidence of his employer. Corollary, he ought to
know that his job requires that he keep the trust and confidence bestowed on him by
his employer unsullied. Breaching that trust and confidence, for example, by pocketing
money as "kickback" for himself in the course of the implementation of the project under
his supervision could only mean dismissal from employment. For, regrettably, while
petitioner vehemently denies having obtained money from the contractor, the evidence
on record proves otherwise.
First, public respondent noted that petitioner volunteered to personally encashed
the checks issued to the contractor, De Guzman, and then retained certain amounts for
himself despite the objection of De Guzman. What is even reprehensible is that
petitioner gave the impression that the money would be shared with the 'higherups'. This finding is based on the sworn declaration of De Guzman and corroborated
by the testimonies of Carmencita B. Macasinag who is in charge of the release of
checks and Dominador Pila, the plant teller. Interestingly, while petitioner disclaims
even seeing the subject checks, he admitted as his own those initials appearing on the
check vouchers.
Second, in claiming he never retained the amount of P20,500.00 for his own
benefit, petitioner referred to the letter of Soldevilla dated October 5, 1992, addressed
to the Manager of Zamboanga Coca-Cola plant. With that letter, petitioner would like to
show that the amounts allegedly retained by him from the cash advances of De
Guzman were eventually turned over to Soldevilla. However, this is belied by the fact
that during the investigation, Soldevilla was still asking for his share in the contract
proceeds from De Guzman. Clearly, petitioner did not remit the money to Soldevilla.
Third, petitioner adverted to the "letter-notes" of Soldevilla issued coincidentally
with the release of the checks. These letter-notes were supposed to remind De Guzman
of his agreement with Soldevilla that the latter's share given to his (Soldevilla)
representative who happens to be the petitioner. Public respondent did not give
credence to these letter-notes as they were brought out by petitioner only during the
arbitration proceedings and not at the company-level investigation. These letter-notes
were mere afterthought, hence, of questionable probative value.
Petitioner's contention that he was denied due process during the company-level
investigation, in our view, is without basis. As an essential requirements, due process
is one which hears before it condemns, which proceeds upon inquiry and renders
[15]
judgment only after hearing.
Even if the employee committed an act which could
constitute a lawful cause or justification for his dismissal, nevertheless the employer
[16]
should first give him the opportunity to explain or present his side.
Where the
employee denies the charges against him, a hearing is necessary to thresh out any
[17]
doubt.
From the record it appears that petitioner was given the opportunity to present his
side and to defend himself against the charges against him. Moreover, public
respondent noted that the petitioner had no objection to the manner of the companylevel investigation was conducted. Nor did he seek the assistance of counsel despite
being duly apprised of such right by the hearing officer. Under the attendant
circumstances, there is no basis for the protestation of petitioner that he was deprived
of due process.
In sum, we hold that public respondent committed no grave abuse of discretion in
reversing the decision of the Labor Arbiter and dismissing the complaint for illegal
termination.
WHEREFORE, premises considered, the petition is DISMISSED for lack of
merit. the Resolutions of National Labor Relations Commission dated December 6,
1993 and March 7, 1994 are hereby AFFIRMED. No pronouncement as to costs.

SO ORDERED
Lim v NLRC, GR# 118434; [G.R. No. 118434. July 26, 1996]; DAVIDE, JR., J
In this petition for certiorari under Rule 65 of the Rules of Court, petitioner Sixta
C. Lim urges us to nullify the decision of public respondent National Labor Relations
Commission (NLRC) in NLRC-NCR CA 005656-93 which upheld her dismissal by
private respondent Pepsi-Cola Far East Trade Development Co., Inc.
(hereinafter PEPSI), thus reversing the decision of the Labor Arbiter in NLRC-NCR 0005-02852-91.
After deliberating on the petition, the comments thereon by the public and the
private respondents, and the petitioners reply to such comments, we resolved to give
due course to the petition.
The incomplete summation of the antecedent facts by both the Labor Arbiter and
the NLRC compels us to examine the original records to arrive at a just determination
of this case.
PEPSI, a manufacturer of concentrates to be sold to Pepsi-Cola Bottlers Co., Inc.,
has a workforce of only nineteen employees, the petitioner being one of them. PEPSI
employed her on 15 June 1983, but she had been with the Pepsi Group since 1 January
[1]
1981 as a secretary for Pepsi Bottling Co. (Phils.), Inc. At the time of her dismissal,
she held the position of Staff Accountant. As such, she assisted and worked closely
with the Plant Accountant to carry out the accounting departments tasks necessary to
ensure an accurate, timely, and coordinated compilation of data for each accounting
[2]
transaction.
In particular, her work involved: (1) Cost Accounting-Production
Reporting (40%) to ensure that all inventory movements were reported and recorded
in the accounting records; (2) Cost Accounting-Financial Reporting (20%) to prepare
accurate and timely, periodic, quarterly, and annual reports (e.g., Raw materials,
Inventory Cost of Sales, etc.); (3) Payroll Reporting (15%) to ensure timely, complete,
and accurate preparation of payroll expenditures, and valid authorization and accuracy
of payroll changes; (4) Statutory Reporting (15%) to prepare accurate and complete
quarterly sales tax returns, year-end tax schedules, and other government-related
requirements; and (5) Preparation of daily trade accounts receivable reports, petty cash
[3]
fund custodianship, and check preparation (10%).
As per company policy, PEPSI regularly evaluated its employees
performance. Originally, the following ratings were used:
Marginal
- Obviously well below the acceptable level for the position.
Fair
- Below standard, shows noticeable need for improvement.
Commendable
- Fully meeting the performance requirements of the position.
Superior
- Noticeably better than required performance.
Distinguished
[4]
- Outstanding Obviously far above an acceptable job.
Over time, the petitioners overall performance appraisals rated as follows: (a) S
[5]
(Superior) as of 1 May 1984; (b) C (Commendable) for the period for 1 December
[6]
1987 to 31 August 1988; and (c) C- (C minus), quantified as 81.10% for the period
[7]
from 1 September 1988 to 31 May 1989.
In the latter part of 1989, PEPSI charged the rating nomenclatures for the
[8]
performance evaluation of its employees, to wit:Significantly Above Target (SA):

- Exceeds position requirements by a wide margin; exceptional.

Above Target (AT):
- Usually exceeds position requirements.
On Target (OT):
- Meets and sometimes exceeds position requirements.
Below Target (BT):
- Meets some or many but not all position requirements.
Significantly Below Target (SB):
- Below position requirements by a wide margin; unacceptable.
For the period beginning 1 July 1989 until 31 December 1989, the petitioner
received an overall rating of BT or Below Target in the management performance
[9]
appraisal. This rating was heavily influenced by her performance in production
reporting, which accounted for forty percent (40%) of the overall rating. Her superiors
appraisal on this matter was as follows:
Cost accounting work in PEPSI Concentrate Operations is one of the most
significant tasks in inventory management and reporting. For some years, Sixta has
been doing this job and the experience she gained from the work should have improved
her performance in the tasks assigned to her. However, it is evident that the quality of
her work in cost accounting needs a lot of improvement. Certain reconciliation[s] of
book and subsidiary balances of inventories in 1989 were not updated. This resulted to
[sic] long unresolved discrepancies in the accounting records which should have been
[10]
avoided had Sixta did [sic] her job deligently [sic].
She likewise obtained a BT rating for Cost Accounting-Financial Reporting, which
[11]
was weighted at twenty percent (20%). She was appraised thus:
The financial reporting aspect of cost accounting contributes to better
management of [sic] the companys resources and gives decision makers an important
guide in setting the companys direction towards productivity and profitability. It seems
that Sixta does not fully appreciate such importance of the report[s] she generates. The
reports she submits need to be thoroughly checked and these are submitted with little
allowance for review. Furthermore, she has no systematic workplan which could have
aided her in the diligent [sic] and competent performance of her tasks.
As to the other aspects of her job responsibilities, viz., payroll; statutory reports;
and preparation of daily trade accounts receivable reports, petty cash custodianship,
and check preparation, which categories account for fifteen percent (15%), fifteen
percent (15%), and ten percent (10%) of the overall rating, respectively, the petitioner
[12]
was rated OT or On Target.
[13]
The overall performance appraisal of the petitioner stated:
Sixtas overall performance for 1989 is below target. Though she has been on the job
for a number of years, her indifference towards her job has hindered an improved
performance from her [sic]. Although she performs well in certain areas of her work,
her seemingly lack of interest in performing beyond expectations of her peers and
superiors has affected her over-all performance.
She should try to improve her work habits, especially in putting her priorities in proper
order. Furthermore, she should develop her own work plan for her to perform the
tasks in a systematic and efficient manner. She should always be alert for [sic] her
past mistakes so as not to commit the same errors repeatedly. That way, her
superiors could place a significant degree of reliance on her work.

In response thereto, the petitioner wrote her superior, Mr. Wilbert Young, asking
[14]
for a re-evaluation of her performance appraisal
as: (a) she was the first to be
evaluated using the revised evaluation sheet; (b) the long unresolved discrepancies
referred to were committed in 1989 while she was on maternity leave; (c) she did
appreciate the importance of her reports, for which reason she even worked Saturdays
to accomplish them; and (d) the delays were caused by the delay of the submission of
data she needed to accomplish her reports.
On 30 November 1990, the petitioner wrote another letter to the plant manager,
[15]
Mr. Marianito Lucero,
wherein she questioned the change of weight of the Cost
Accounting-Production Reporting from twenty percent (20%) to forty percent
(40%). She then objected to the finding that certain reconciliation of book and subsidiary
balances of inventories in 1989 were not updated in the appraisal, and explained that
the use of the word certain indicated mere isolated omissions, and since the report in
its entirety was not defective, such should not drag her rating down. Moreover, she
inquired why she was not rated for the other portions of her work and stressed that she
was on maternity leave during the time there was a failure to update, which should not,
therefore, be attributed to her. She likewise excepted to the finding that it resulted to
long unresolved discrepancies in the accounting records, and contended that if, indeed,
this was long unresolved, then it should not have been allowed to stay unresolved and
she should have been informed sooner.
She then pointed out that the period involved, 1 July 1990 to 31 December 1990,
covered only five months, but what was singled out in the appraisal was her year-end
financial report, forgetting the other financial reports she submitted during the appraisal
period. She made it clear that a few mistakes and delays did not mean she failed to
appreciate the importance of these reports; in any event, her supervisors were likewise
culpable since they were lax in allowing the reports to remain unupdated when they
knew she was on leave. Finally, she claimed that she was fed the wrong figures, hence
the mistakes. As a consequence, she questioned the favorable appraisal of the
warehouseman who fed her the wrong figures. In conclusion, she cited her past
favorable appraisals and asserted the unlikelihood of an abrupt decline in her
performance in so short a time.
[16]
PEPSI conducted another appraisal
of the petitioners performance for the
period from 1 January 1990 to 31 December 1990. The petitioner received an overall
[17]
rating of BT, with the text of her overall appraisal reading:
Sixtas overall rating is Below Target. Her performance meets some but not all position
requirements. In the previous rating, it has been pointed out that she has to upgrade
the quality of her work, particularly in Cost Accounting related tasks. However, her
continued inability to show a marked improvement in her tasks has caused
disruptions in the efficient workflow in the Department.
The usual delays and inaccuracies in the submission of her Cost Accounting reports
has made her superiors spend more time than necessary in reviewing and correcting
her job. Furthermore, she has not consistently adhered to companys [sic] policies
relating to cash-handling functions. In instances where she forced balance [sic]
certain petty cash reports and advanced her personal funds for petty cash. She could
not have resorted to such improper practices had she submitted liquidation reports on
time.
Considering that she has been with the Company for quite sometime [sic], it was
expected that she should show improvements every year and expectations should
also grow. However, what happened was expectations of her superiors have
remained in [sic] status quo for a number of years, yet she was not able to meet such

standards. She should strive harder to produce the necessary results and do some
re-evaluation of her attitudes [sic] towards her tasks. She should bear in mind one of
the value statement [sic] that the Pepsico Concentrate Operations Management has
advocated: ONLY RESULTS-ORIENTED [sic] PEOPLE SHOULD BE HIRED
DEVELOPED AND PROMOTED.
Like the previous appraisal, the petitioner received BT ratings for Cost Accounting
Production Reporting and Cost Accounting Financial Reporting. In addition, she
received a BT rating for preparation of accounts receivable reports, petty cash fund
custodianship, and check preparation. For payroll and statutory reports, she received
a rating of OT. The following were thus suggested as areas for improvement:
FOR COST ACCOUNTING PRODUCTION REPORTING
1. She must learn to prioritize her various tasks. This way, she shall be able to
effectively manage her time and produce results on a timely basis.
2. . She should raise the necessary warning signals if shes having difficulties
with certain areas of her job. This will alert her superiors to immediately help
resolve the problems.
FOR COST ACCOUNTING FINANCIAL REPORTING
1. She should develop her own system of self checking/review of her job.
2. She should learn to fully utilize the computer to simplify her job and
facilitate timely generation of her reports.
FOR PAYROLL:
1. She should always be in [sic] the lookout for any discrepancy in payroll
reports. Such matters upon discovery, should immediately be resolved.
FOR PREPARATION OF ACCOUNTS RECEIVABLE REPORTS, PETTY CASH
FUND CUSTODIANSHIP AND CHECK PREPARATION JOB:
1. She should strictly adhere to company policies. She should realize the
repercussions of these violations.
[18]
2. She should closely monitor receivable balances to avoid bad debts losses.
Unsatisfied, the petitioner wrote a letter on 4 March 1991 to Mr. Yasuyuki Mihara
[19]
of Pepsi Co, Inc., Japan.
She pointed out that Mr. Young issued a memorandum
asking the Plant Manager, Mr. Marianito Lucero, about her case without furnishing her
a copy thereof, and that Messrs. Young and Lucero never discussed the matter with
her. In response, Mr. Mihara sent her a telegram dated 22 March 1991 informing her
that he understood her point and would discuss the matter with her superiors on his
[20]
visit to the Philippines after his return from New York.
PEPSI, however, did not wait for Mr. Miharas visit. It asked the petitioner to
[21]
[22]
voluntarily resign and offered to pay her termination benefits, but she refused.
On 6 May 1991, the petitioner was verbally informed of her termination as an
[23]
employee of PEPSI.
On 14 May 1991, the petitioner filed with the Labor Arbiter a complaint for
[24]
dismissal without due process against PEPSI.
On 15 May 1991, the petitioner received a Termination Letter from PEPSIs
Marianito Lucero advising her of PEPSIs decision to terminate her services for gross
[25]
inefficiency effective 31 May 1991.

On 14 October 1991, the petitioner filed her Position Paper with a prayer for
reinstatement with full backwages or, if reinstatement was not possible, then for
payment of separation pay of P268,000.00 in accordance with company policy, and
[26]
moral damages of P100,000.00. To which, the private respondent filed its Position
Paper and claimed that the petitioners BT performance appraisal was sufficient ground
[27]
to dismiss her under Article 282(b) of the Labor Code.
[28]
On 30 July 1993, the Labor Arbiter rendered judgment in favor of the petitioner
and disposed of the case as follows:
WHEREFORE, premises considered, judgment is hereby rendered:
1. Ordering respondent Pepsi-Cola Far East Trade Development Co., Inc.
to reinstate complainant to her former position without loss of benefits
and seniority rights, or in lieu thereof at the discretion of the respondent
company, to pay her separation pay which [sic] equivalent to (P13,550 x
10 years) P135,500.00;
2. Ordering respondent company to pay complainant his [sic] 13th month
pay for her imputed service for the years 1991, 1992, and a proportionate
amount in 1993, in the total amount of (P13,550 x 2.5) P33,875.00;
3. Ordering respondent company to pay complainant her full backwages the
total amount of which up to even date is computed as follows:
P13,550.00 x 26 month [sic] = P352,300.00
4. Awarding complainant ten (10%) on his [sic] total monetary reward for and
as attorneys fees.
[29]

PEPSI seasonably appealed from the decision to the NLRC.

[30]

In its decision of 28 October 1994, the Second Division of the NLRC reversed
the decision of the Labor Arbiter. The dispositive portion of the decision states:
WHEREFORE, in view of the foregoing, the Decision of Labor Arbiter Bartolabac
dated July 30, 1993 is hereby REVERSED, vacated and set aside and a new one
rendered in its place, validating the complainant Sixta Lims dismissal but directing
Pepsi-Cola Far East Trade Development Co., Inc. to pay the complainant separation
benefits equivalent to one month pay for every year of service.
All other claims are DENIED for lack of merit.
Her motion for reconsideration of this adverse decision was denied on 13
[31]
December 1994.
The petitioner then filed this special civil action for certiorari and contended that
the NLRC committed grave abuse of discretion in reversing the Labor Arbiter because:
(1) her alleged inefficiency was not among the just causes prescribed by law for the
dismissal of an employee; (2) even under PEPSIs new performance evaluation method,
her dismissal from employment was not justified; and (3) even assuming that such
dismissal was justified, she was still entitled to separation benefits of P268,000.00 in
accordance with PEPSIs policy and practice, plus damages and attorneys fees. On the
other hand, PEPSI insists that gross inefficiency is just cause for dismissal under Article
282(b) of the Labor Code.
Under Article 282 of the Labor Code (P.D. No. 442), as amended, the following
are deemed just causes to terminate an employee:

(a) Serious misconduct or willful disobedience by the employee of the lawful

orders of his employer or representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his
employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against the person of
his employer or any immediate member of his family or his duly
authorized representative; and
(e) Other causes analogous to the foregoing.
We cannot but agree with PEPSI that gross inefficiency falls within the purview of
other causes analogous to the foregoing, and constitutes, therefore, just cause to
terminate an employee under Article 282 of the Labor Code. One is analogous to
another if it is susceptible of comparison with the latter either in general or in some
[32]
specific detail; or has a close relationship with the latter. Gross inefficiency is closely
related to gross neglect, for both involve specific acts of omission on the part of the
employee resulting in damage to the employer or to his business. In Buiser vs.
[33]
Leogardo, this Court ruled that failure to observe prescribed standards of work, or to
fulfill reasonable work assignments due to inefficiency may constitute just cause for
dismissal.
In the case at bench, however, prior to the issuance of the Termination Letter on
15 May 1991, PEPSI never called the petitioners attention to any alleged gross
inefficiency on her part.Likewise, she was never warned of possible disciplinary action
due to any alleged gross inefficiency. The evaluation report merely indicated her areas
for improvement. Moreover, in PEPSIs brochure entitled Managing Performance For
[34]
the 90s, a BT rating does not merit dismissal from the service; as a matter of fact,
the lower rating - Significantly Below Target (SB) - is not even a ground for termination
of employment, but may only justify putting the employee on probation and [telling him]
that improvement is a necessity.
Undoubtedly, the petitioner obtained an unfavorable rating, but not to the extent,
under the companys standards, to warrant even a probationary measure which is given
to the lowest rating of Significantly Below Target (SB). If the company truly found the
petitioners inefficiency to be of such a gross character, then it should have rated her
even lower than SB, since the latter only requires that the employee be put on
probation.
It is then quite clear that by its own acts, PEPSI had not characterized as gross
inefficiency whatever failures, shortcomings, or deficiencies may have been attributable
to the petitioner.The rule is of course doctrinally entrenched that in termination cases,
the burden of proving that the employees dismissal from employment was for just cause
[35]
rests upon the employer.
Moreover, PEPSI violated the petitioners right to due process the heart of the
employees right to security of tenure which is guaranteed in full by no less than the
[36]
Constitution. This right is implemented by the requirements of twin notice and hearing
prescribed in Article 277 of the Labor Code, as amended, and in Sections 2 to 7, Rule
XIV, Book V of the Omnibus Rules Implementing the Labor Code. The first notice
apprises the employee of the particular acts or omissions for which his dismissal is
sought, which may be loosely considered as the proper charge; while the second
informs the employee of the employers decision to dismiss him. The latter must come
only after the employee is given a reasonable period from receipt of the first notice
within which to answer the charge, and ample opportunity to be heard and defend
himself with the assistance of his representative, if he so desires. Non-compliance
therewith is fatal as these requirements are conditions sine qua non before dismissal

[37]

may be validly effected. It goes without saying that the dismissal must be for any of
[38]
the causes provided for in Article 282 of the Labor Code.
All that transpired in this case was that after the petitioner wrote a letter to Mr.
Yasuyuki Mihara of Pepsico, Inc., Japan, she was twice verbally asked to voluntarily
resign, albeit with separation pay. When she rejected the proposal, she was verbally
informed of her termination, as a consequence of which, she filed her complaint for
dismissal without due process on 14 May 1991. The formal Letter of Termination was
only prepared and served on her on 15 May 1991.
The petitioners termination, being both substantively and procedurally flawed for
being violative of due process is, therefore, null and void. The petitioner is entitled to
reinstatement, with back wages from the time she was illegally dismissed until she is
effectively reinstated, less whatever she may have received as wages through payroll
[39]
reinstatement,
and whatever amount she may have earned from employment
[40]
elsewhere during the period of her illegal dismissal.
WHEREFORE, the instant petition is GRANTED. The challenged decision of the
Second Division of the National Labor Relations Commission in NLRC-NCR CA
005656-93 is hereby SET ASIDE. Private respondent Pepsi-Cola Far East Trade
Development Co., Inc. is ordered to reinstate petitioner Sixta C. Lim to her position as
Staff Accountant without loss of seniority rights, and to pay her (a) backwages from the
time she was illegally dismissed until she is effectively reinstated, less whatever she
may have received through payroll reinstatement and whatever amount she may have
earned from employment elsewhere during the period of her illegal dismissal, and (b)
other monetary benefits that may be due her from the date of her illegal dismissal until
such effective reinstatement.
Costs against the private respondent.
SO ORDERED.
Tanala v NLRC, GR# 116588; [G.R. No. 116588. January 24, 1996]; REGALADO, J.
The extraordinary writ of certiorari is invoked in this petition to nullify the decision
of public respondent National Labor Relations Commission (NLRC), dated May 23,
1994, which reversed the decision of the labor arbiter, as well as said respondents
order of July 28, 1994 which denied petitioners motion for reconsideration of its
[1]
decision.
Petitioner was employed as a service driver of respondent company.
On November 9, 1992, after his tour of duty, petitioner and some of his co-employees
went to a restaurant located near the companys premises at Bagtikan, San
Antonio Village, Makati. At about 7:30 P.M., while they were drinking beer, petitioner
had an altercation with his co-employee, Rodolfo Laurente, which could have resulted
into a fight were it not for the timely intervention of some bystanders.
The security guard on duty reported the incident to respondent company. Based
on said report, private respondent placed both petitioner and Rodolfo Laurente under
preventive suspension for thirty days effective December 4, 1992.
By reason of his suspension, petitioner filed a complaint on December 28,
1992 with the labor arbiter for illegal suspension, non-payment of allowances,
separation pay and retirement benefits.
After the lapse of the period of preventive suspension, petitioner was not
readmitted to work, hence on February 26, 1993, petitioner filed an amended
consolidated complaint for illegal dismissal. Petitioner alleged that his 30-day
suspension and subsequent dismissal were illegal, the same having been the offshoot

of a shouting match he had with a co-employee in a place outside of respondents

[2]
premises and long after they had been on off-duty status.
In its answer, respondent company averred that the suspension of both
protagonists was imposed as a precautionary measure to avoid a more serious
incident; that the occurrence of the fight outside of respondents premises and while the
employees were off duty were immaterial inasmuch as petitioner allegedly took a knife
from his bag inside the garage of the company, which was a violation of house rules;
and further, that petitioner deserved the penalty of dismissal for his illegal possession
[3]
of a deadly weapon.
On September 13, 1993, a decision was rendered by the labor arbiter finding the
dismissal illegal and ordering petitioners reinstatement with payment of back wages,
[4]
but disallowing his other monetary claims.
On appeal, respondent NLRC reversed the decision of the labor arbiter and
[5]
dismissed the complaint for lack of merit. A motion for reconsideration of the said
[6]
decision was also denied by the NLRC in its order dated July 28,1994.
Petitioner has come to us contending that public respondent acted with grave
abuse of discretion tantamount to excess or lack of jurisdiction and without regard to
the facts on record, the law, as well as established jurisprudence, when:
a) it said that the two affidavits upon which the labor arbiter based his findings of fact
that petitioner did not carry a knife were obviously surreptitiously inserted into the
records;
b) public respondent said that, in any case, the affidavits which purport to show that
the affiants, one of whom was Rodolfo Laurente, petitioners opponent, did not notice
petitioner carrying the knife, pales in comparison to the straightforward and detailed
report of the guard who witnessed petitioner bring out a knife from his bag inside
respondents garage; and
[7]
c) due process was not observed when petitioner was dismissed from employment.
The factual findings of administrative bodies are, as a rule, binding on this Court,
but this is true only when they do not come under the established exceptions. One of
these is where the findings of the labor arbiter and the NLRC are contrary to each
[8]
other. In the instant case, the findings of the NLRC and the labor arbiter are
inconsistent, hence there is a necessity to review the records to determine which of
them should be preferred as more conformable to the evidentiary facts.
A review of the decision rendered by the NLRC discloses that in upholding the
legality of the dismissal of herein petitioner, the commission relied on the fact that on
the day of the incident herein petitioner took a knife from his bag inside the garage of
respondent company in violation of its Company House Rules and Regulations. We are
inclined to agree with the said finding of the NLRC which was based on the report made
by the security guard on duty who has not been shown to be harboring any ill feeling
[9]
against petitioner.
On the other hand, the two affidavits executed by Rodolfo Laurente and
[10]
Deomedes Roca, which served as the basis for the findings of the labor arbiter that
petitioner did not carry a knife, are not sufficient to refute the written report of the
security guard. In their said affidavits, affiants merely attested to the fact that they did
not notice petitioner carrying any knife or deadly weapon, whereas in the written report
of the security guard it was specifically affirmed in a detailed and straightforward
manner that petitioner brought out a knife from his bag inside the companys garage.
Testimony is positive when the witness affirms that a fact did or did not occur, and

negative when he says that he did not see or know of the factual occurrence. Positive
[11]
testimony is entitled to greater weight.
An employee may be validly dismissed for violation of a reasonable company rule
[12]
or regulation adopted for the conduct of the companys business.
It is recognized
principle that company policies and regulations are, unless shown to be grossly
oppressive or contrary to law, generally valid and binding on the parties and must be
complied with until finally revised or amended, unilaterally or preferably through
[13]
negotiation, by competent authority.
However, considering the other attendant circumstances, viz.; the incident
occurred outside company premises after office hours, and this is the first infraction
committed by petitioner after working with the company for almost fifteen years without
any previous derogatory record, the ends of social and compassionate justice would be
served if petitioner be given some equitable relief in the form of separation pay.
[14]
In the case of Soco vs. Mercantile Corporation of Davao, et al., cited in Cruz
[15]
vs. Medina, et al.,
we ruled that where an employee who had been dismissed for
violation of company rules had been employed for eighteen years, he may be afforded
some equitable relief in consideration of the past services rendered by him by granting
him separation pay equivalent to one months salary for every year of his service to the
company.
With respect to the issue of whether petitioner was denied due process in the
administrative procedure entailed in his dismissal, we agree with the labor arbiter that
petitioner was indeed denied procedural due process therein. His dismissal was not
preceded by any notice of the charges against him and a hearing thereon. The twin
requirements of notice and hearing constitute the essential elements of due process in
[16]
cases of dismissal of employees. The purpose of the first requirement is obviously
to enable the employee to defend himself against the charge preferred against him by
[17]
presenting and substantiating his version of the facts.
Contrary to the findings of the NLRC, the notice of preventive suspension cannot
be considered as an adequate notice, Even the fact that petitioner submitted a written
explanation after the receipt of the order of suspension is not the ample opportunity to
be heard contemplated by law. Ample opportunity to be heard is especially accorded
to the employee sought to be dismissed after he is informed of the charges in order to
[18]
give him an opportunity to refute such accusations levelled against him.
Furthermore, this Court has repeatedly held that to meet the requirements of due
process, the law requires that an employer must furnish the worker sought to be
dismissed with two written notices before termination of employment can be legally
effected, that is, (1) a notice which apprises the employee of the particular acts or
omissions for which his dismissal is sought; and (2) the subsequent notice, after due
[19]
hearing, which informs the employee of the employers decision to dismiss him.
In the instant case, petitioner was not furnished either a written charge or a notice
of dismissal. Petitioner was never informed of why after his suspension of thirty days,
he was no longer allowed to work. Quite clearly, therefore, respondent company
violated petitioners right to procedural due process before the termination of his
[20]
employment. Ergo, he must be given indemnity in the amount of P1,000.00.
WHEREFORE, the judgment of respondent National Labor Relations
Commission is hereby AFFIRMED with the MODIFICATION that petitioner is adjudged
entitled to and should be paid separation pay equivalent to one month of his latest and
highest salary for every year of service, and that respondent company shall further pay
petitioner the amount of P1,000.00 as indemnity for its disregard of procedural due
process.
SO ORDERED.

Nueva Ecija V Min of Labor, GR# L-61965; April 3, 1990; PADILLA, J.

Petition for review on certiorari (which we treat as a petition for certiorari) of the Order
1
dated 2 September 1980 of the Minister of Labor and Employment affirming the
2
Order dated 14 February 1980 of the Regional Director, Mr. David P. San Pedro,
which denied the petitioner's application for clearance to terminate the services of
private respondent Oscar S. Angeles.
Private respondent Oscar S. Angeles (hereinafter, Angeles), started working with
petitioner, Nueva Ecija I Electric Cooperative, Inc. (NEECO, for brevity) sometime in
1973, rising from the ranks and holding the position of Project Engineer in petitioner's
main office in San Isidro, Nueva Ecija, at the time petitioner filed in the Regional
Office of the Ministry of Labor an application for clearance to terminate his
employment. The grounds of the application were: (a) Direct insubordination; (b)
Abandonment of work; (c) Conduct unbecoming of an official of the cooperative; (d)
Refusal to report for work; and (e) Habitual tardiness. Upon receipt of a copy of the
application, private respondent filed an opposition thereto, alleging that the grounds
adduced by petitioner were "absolutely false, sham and untrue and entirely devoid of
3
any factual basis and was inspired by ulterior motives."
To expedite the disposition of the case, the parties were directed to file their
respective position papers together with supporting documents, after which the case
was deemed submitted for decision.
Based on the position papers submitted by the parties, the Regional Director denied
petitioner's application for clearance and ordered petitioner "to immediately reinstate
the oppositor to his former position without loss of seniority rights and with full
backwages from the time he was illegally dismissed up to the date of his
4
reinstatement." As already stated, petitioner's appeal from the said decision to the
Minister of Labor and Employment was dismissed for lack of merit. Hence, this
recourse.
Petitioner imputes two (2) errors to respondent Minister, namely:
I. That the public respondent erred in finding that private respondent did not
abandon his work, and refused to report for duty.
II. That the public respondent gravely and seriously erred in ordering
petitioner to reinstate private respondent to his former position with full
backwages when private respondent was not dismissed or suspended from
5
the service.
It is petitioner's contention that, as borne by the evidence, Angeles abandoned his
work. Petitioner claims that Angeles was assigned as project engineer for the
construction of a new sub-station in Malapit, San Isidro, Nueva Ecija, to coordinate
with Engr. Raul Mangahas regarding the plans and specification petitions of the new
sub-station. Petitioner adds that this assignment effective 26 February 1979, was
contained in the Memorandum dated 24 February 1979 of Dr. Cesar G. Lamson,
General Manager, addressed to Oscar S. Angeles. Petitioner further contends that
while private respondent reported for work at the construction site on 26 and 27
February 1979, yet, according to the records submitted by the Security Guard
stationed at the site's guardhouse he (Angeles) was absent from 28 February to 4
March 1979, and that from 5 March to 16 March 1979, he did not report for work.
Moreover, petitioner states that he (Angeles) did not file ally application for leave to
justify these absences.
Petitioner assails the finding of public respondent that Angeles did not abandon his
work as "abandonment, to be a valid theory of defense and just cause for termination,
there must be a credible showing that the employee has not (sic) the intention to
resume his former occupation." Petitioner argues that intention is a mental process

and activity of the mind and the employer cannot be subjected to the mercy of the
6
employee's imagination and undefined mental attitude.
Moreover, petitioner finds it incredible that Angeles was verbally permitted by the
General Manager, Cesar G. Lamson, to go on an indefinite leave of absence without
requiring him (Angeles) to file a written application for leave properly approved by the
General Manager, which is a standard operating procedure in any office. Besides,
according to petitioner, Mr. Cesar G. Lamson died on 21 June 1979 and he could no
longer refute private respondent's statement regarding the alleged verbal permission
given by the deceased manager to private respondent.
Pursuing the second issue raised, petitioner maintains that public respondent erred in
ordering the reinstatement of Angeles with backwages because he was not dismissed
or suspended by NEECO. It further asserts that it merely filed an application to
terminate the services of Angeles and it was awaiting the final order of public
respondent on its application for clearance. Alleging that it was private respondent
who stopped reporting for duty without an approved leave of absence, in gross
violation of the rules of the cooperative, petitioner alleges that public respondent erred
in ruling that private respondent is entitled to backwages.
On the other hand, Angeles insists that he did not abandon his employment or that he
(Angeles) refused to work at the construction site in Malapit, San Isidro, Nueva Ecija.
In support of this contention, he presented the affidavit of Engineer Raul Mangahas,
dated 12 October 1979, attesting to the fact that he (Angeles) coordinated with said
Engr. Raul Mangahas in the construction of the new sub-station from 26 February
1979 to 3 April 1979. As for his failure to report for work, he asserts that he went on
leave to attend to family matters, with the full knowledge of the General Manager, Dr.
Cesar Lamson. To prove that he did not intend to abandon his work and that he did
not refuse to work, he submitted copies of his letters (Exhs. "6", "7", "8", "9") dated 4
September 1979, 5 September 1979, 12 October 1979 and 7 November 1979
7
wherein he indicated that he was reporting for work.
Moreover, Angeles claims that soon after filing his opposition to the clearance
application filed by NEECO, he went to see the General Manager to show his
willingness to work at his assignment. Unfortunately, the General Manager refused to
accept him and advised him to wait for the result of the petitioner's application for
clearance to terminate his employment, which was then pending in the Ministry of
Labor and Employment.
The point that Angeles would like to impress upon the Court is that, considering the
dedicated service he has rendered petitioner and having been promoted to various
positions of responsibility in the short period he has been employed by NEECO, he
would not just abandon his work which he loves and values. In the short period of his
employment with NEECO, he adds, he has held the following positions:
1. Line Superintendent
From date of employment to February, 1977;
2. District Manager
Sta. Rosa District Office, Sta. Rosa, Nueva Ecija, February 1977
February 1978;
3. Project Manager, Nueva Ecija Furniture Industries, Inc.
(NEFUR) This is a "Power Use Project" of the NEECO Pearanda,
Nueva Ecija February, 1978 January, 1979; and
4. Project Engineer, NEECO Main Office San Isidro, Nueva
8
Ecija January, 1979 to date.
Angeles concludes that it can readily be seen from the positions above enumerated
that he has ably demonstrated his capability dedication and loyalty to petitioner and
that his dismissal by petitioner is unfounded and without merit.

After a careful examination of the questioned decision of public respondent, we find

that no grave abuse of discretion was committed which calls for a reversal of the said
decision. Hence, we affirmed the same.
Petitioner's only evidence to show that Angeles did not report for work at the substation in Malapit, San Isidro, Nueva Ecija, were the reports submitted by the officerin-charge of the security guards assigned in the NEECO compound where the
construction of the new sub-station was being undertaken. The reports are
purportedly the daily time records of attendance of Angeles as observed and recorded
by the security guards stationed in the guardhouse. Petitioner cannot rely absolutely
on these reports as they are not the official daily time records prepared and signed by
the employee concerned. At best, they are self-serving documents prepared by the
security guards to support petitioner's cause for abandonment against Angeles.
We agree with public respondent that Angeles did not belong to the rank and file of
petitioner's employees. His position comes within the "managerial" category and
therefore he was not really required to fill up a daily time record. Moreover, the charge
of abandonment ascribed to Angeles was belied by petitioner's act of paying his
salary from 26 February 1979 to 15 March 1979 during which period, he was
supposed to have abandoned his work. A more convincing proof is the affidavit of
Engr. Raul M. Mangahas which states that Angeles coordinated with him (Mangahas)
from 26 February 1979 to 3 April 1979. This sworn statement cannot be over-turned
by mere reports of security guards which are not even under oath.
For abandonment to constitute a valid cause for termination of employment, there
must be a deliberate, unjustified refusal of the employee to resume his employment.
This refusal must be clearly shown. Mere absence is not sufficient; it must be
accompanied by overt acts unerringly pointing to the fact that the employee simply
9
does not want to work anymore. The letters of Angeles addressed to the General
Manager wherein he indicated his intention to report for duty, disproves petitioner's
claim that he refused to work.
Petitioner complains that the public respondent should not have ordered it to reinstate
private respondent to his former position with full backwages because it has not
dismissed private respondent; that it only filed an application for clearance to
terminate his services and was awaiting the final action on its application by the
Minister of Labor and Employment. This argument pales in the light of the finding that
petitioner refused to accept back private respondent when he reported to the General
Manager, under the pretext that it was waiting for the final order of the Regional
Director of the Ministry of Labor and Employment on its clearance application. The
refusal of petitioner to accept back Angeles had the actual effect of terminating his
employment.
The law at the time Angeles' employment was terminated required prior clearance
from the Minister of Labor and Employment before he could be dismissed. Since no
clearance was as yet granted when petitioner refused to accept back private
respondent, which amounted to his dismissal, the Court sees no grave abuse of
discretion or even error in the order of public respondent to reinstate Angeles to his
former position and the payment of his backwages which the law also then provided
10
for.
WHEREFORE, the petition is DISMISSED and the decision of public respondent
dated 2 September 1980 is AFFIRMED with the modification that backwages shall be
limited to three (3) years only. Costs against petitioner.
SO ORDERED.