11th assignment

Case No. 1

FERNANDO CO (formerly doing G.R. No. 195167

business under the name
*
Nathaniel Mami House ),

Petitioner, Present:

CARPIO, J., Chairperson,

- versus - BRION,

PEREZ,

SERENO, and

LINA B. VARGAS, REYES, JJ.

Respondent.

Promulgated:

November 16, 2011

x--------------------------------------------------x

RESOLUTION

CARPIO, J.:

The Case

This petition for review1 assails the 29 June 2010 Decision2 and the 5 January 2011
Resolution3 of the Court of Appeals in CA-G.R. SP No. 110728. The Court of Appeals set
aside the 11 June 2008 Decision4 of the National Labor Relations Commission (NLRC)
and reinstated the 30 October 2004 Decision5 of the Labor Arbiter.

Page 1 of 61
 The Facts

On 22 April 2003, respondent Lina B. Vargas (respondent) filed against Nathaniel

Bakeshop and its owner Fernando Co a complaint for underpayment or non-payment of
wages and holiday pay.6 The complaint was later amended to include illegal dismissal as a
cause of action and the non-payment of service incentive leave.7

Respondent alleged that she started working at the bakeshop in October 1994 as a baker
and worked from 8:00 a.m. until 8:30 p.m., Monday to Saturday. Aside from baking,
respondent also served the customers and supervised the other workers in the absence of
the owner. Furthermore, respondent claimed that she sometimes cooked and did the chores
of a housemaid whenever the latter was not available. Respondent had a salary of P220 per
day, which she received every Saturday afternoon. During the period of her employment,
respondent was not given a payslip and she was never asked to sign a payroll.

On 6 April 2003, petitioner Cos wife, Nely Co, told respondent to cook their lunch because
the housemaid was ironing clothes. Since respondent was busy preparing customers orders,
she lost track of time and was unable to cook lunch as instructed. Irate at respondents
failure to cook, Nely Co cussed respondent and told her to leave and never to return
because she was not needed anymore. Respondent was so humiliated and could no longer
bear the treatment she received from her employers that she decided to take her salary and
leave that same day. Respondent later filed the complaint against Nathaniel Bakeshop and
its owner Fernando Co.

Petitioner denies respondents claim that she was employed as a baker in their business.
Petitioner alleges that they hired respondent to work as a housemaid. Petitioner refutes
respondents version of the events which allegedly happened on 6 April 2003. Petitioner
alleges that in April 2003, his wife, Nely Co, reprimanded respondent for her failure to
cook lunch on time. Angered at being reprimanded, respondent then demanded her salary
and walked out of petitioners residence and has never reported for work again. Petitioner
further avers that respondent badmouthed petitioners daughter and displayed defiance,
disrespect and insubordination toward them.

On 30 October 2004, the Labor Arbiter rendered a Decision, the dispositive portion of
which reads:

Page 2 of 61
 WHEREFORE, premises considered, judgment is hereby rendered finding illegal
complainants dismissal. Consequently, respondents are hereby held liable and
ordered to reinstate complainant to her former position without loss of seniority
rights and other privileges with full backwages initially computed at this time
at P110,436.04.

IN CASE REINSTATEMENT BECOMES IMPOSSIBLE DUE TO SOME

SUPERVENING EVENT, RESPONDENTS ARE ALSO ORDERED TO PAY
COMPLAINANTS SEPARATION PAY COMPUTED at one months pay for every
year of service.

Respondents are likewise ordered to pay complainants service incentive leave

of P3,332.50, 13th month pay (pro-rata) of P1,551.66 and salary differential
of P1,723.41.

All other claims are hereby dismissed for lack of merit.

SO ORDERED.8

The Labor Arbiter found that the place of business of petitioner is the same as his
place of residence and that respondent works for petitioner as well as for his business
which is based in his home. Thus, the Labor Arbiter concluded that while complainant
may have started her employ doing chores for the [petitioners] family, she also fulfilled
tasks connected with the [petitioners] business such as cooking, filling orders, baking
orders, and other clerical work, all of which are usually necessary and desirable in the
usual trade or business of the respondent. Inescapably, complainant is a regular employee
and thus, entitled to security of tenure.9

On appeal, the NLRC reversed and set aside the Labor Arbiters Decision. The NLRC
concluded that respondent was not employed as a baker at petitioners bakeshop but was
merely petitioners housemaid who left her employ voluntarily. The NLRC found petitioner
not guilty of illegal dismissal.

Respondent filed a petition for certiorari with the Court of Appeals.

Page 3 of 61
 The Ruling of the Court of Appeals

On 29 June 2010, the Court of Appeals promulgated its Decision in favor of respondent.
The Court of Appeals annulled the NLRC Decision and reinstated the 30 October 2004
Decision of the Labor Arbiter. The Court of Appeals ruled:

[I]t is clear that petitioner [Lina B. Vargas] is not a househelper or domestic

servant of private respondents [Nathaniel Bakeshop and Fernando Co]. The
evidence shows that petitioner is working within the premises of the business of
private respondent Co and in relation to or in connection with such business. In
the Memorandum of Appeal filed by private respondents before the NLRC, the
place of business of respondent Co and his residence is located in the same
place, Brgy. Juliana, San Fernando, Pampanga. Thus, respondent Co exercised
control and supervision over petitioners functions. Respondent Cos averment that
petitioner had the simple task of cleaning the house and cooking at times and was
not involved in the business was negated by the fact that petitioner likewise takes
the orders of private respondents customers. Even if petitioner was actually working
as domestic servant in private respondents residence, her act of taking orders, which
was ratiocinated by the NLRC as not leading to the conclusion that petitioner in fact
took the orders, would warrant the conclusion that petitioner should be considered as
a regular employee and not as a mere family househelper or domestic servant of
respondent Co.

Private respondents relied heavily on the recantation (through an Affidavit of

Recantation) by Joseph Baybayon of his Affidavit stating that petitioner was an
employee, to boast [sic] their theory that petitioner is a mere domestic helper.
Nonetheless, this Court is convinced that the allegations in the first affidavit are
sufficient to establish that petitioner is an employee of private respondent and not a
housemaid. Granting arguendo, that the second affidavit validly repudiated the first
one, courts generally do not look with favor on any retraction or recanted testimony,
for it could have been secured by considerations other than to tell the truth and
would make solemn trials a mockery and place the investigation of the truth at the
mercy of unscrupulous witnesses. A recantation does not necessarily cancel an
earlier declaration, but like any other testimony, the same is subject to the test of
credibility and should be received with caution.

Page 4 of 61
 Having resolved the issue that petitioner was an employee of private respondents
and not a housemaid, was petitioner illegally dismissed? The answer is in the
affirmative. Since petitioner is an employee of private respondents, she is entitled to
security of tenure. The NLRC observed that it was petitioner who left private
respondents on April 6, 2003 when petitioner was allegedly driven away from work
by Nely Co. Private respondents witnesses, Jay dela Cruz and Maria Fe Reniva,
averred that it was petitioner who abandoned her job by not reporting for work. But
their affidavits did state that the two were employees of private respondent. The
other two documents considered by the NLRC were the affidavits
of Felisa Borason San Andres (who allegedly helped petitioner to be employed as
housemaid of Nely Co) and Alma P. Agorita (an alleged co-housemaid of petitioner
in the Co residence). Surprisingly, the affidavit of Felisa Borason San Andres was
written in English, considering the statement that she was employed
as househelper of Nely Co. The question is whether the said househelper understood
what was written in her affidavit or if the same was explained to her in her native
language, for she was a resident of San Felipe, Naga City, where she allegedly
executed her affidavit. All told, the said affidavits cannot be given credence to refute
the fact that petitioner was an employee of private respondent Co doing work in
relation to private respondents business, which is that of a bakeshop.

Assuming further that petitioner abandoned her job, the Supreme Court held in Ultra
Villa Food Haus and/or Rosie Tio vs. NLRC that to constitute abandonment, two
requisites must concur: (1) the failure to report to work or absence without valid or
justifiable reason, and (2) a clear intention to sever the employer-employee
relationship as manifested by some overt acts, with the second requisite as the more
determinative factor. The burden of proving abandonment as a just cause for
dismissal is on the employer. Private respondents failed to discharge this burden.
The only evidence adduced by private respondents to prove abandonment were the
affidavits of their househelpersand employees.

WHEREFORE, premises considered, the petition is GRANTED. The Decision of

the National Labor Relations Commission, Second Division dated June 11, 2008 is
hereby ANNULLED and SET ASIDE and the Decision of the Labor Arbiter dated
October 30, 2004 is REINSTATED.

SO ORDERED.10 (Boldfacing supplied)

Page 5 of 61
Petitioner filed a Motion for Reconsideration, which the Court of Appeals denied in its
Resolution dated 5 January 2011. Hence, this petition.

The Issue

Petitioner raises the sole issue of whether the Court of Appeals erred in ruling that at the
time Respondent was working with the Co family, the business was being conducted at the
residence.11

The Ruling of the Court

We find the petition without merit.

In this case, it was only in petitioners Supplement to the Motion for Reconsideration of the
Court of Appeals Decision that petitioner raised the issue that contrary to the findings of
the Labor Arbiter, NLRC, and the Court of Appeals, the bakery was not located at his
residence at the time respondent was in their employ. Furthermore, petitioner would even
have this Court evaluate additional documentary evidence which were not offered during
the proceedings in the Labor Arbiter, NLRC, and the Court of Appeals. The additional
evidence were only submitted after the Court of Appeals promulgated its Decision, when
petitioner attached the additional evidence in his Supplement to the Motion for
Reconsideration.12

The issue raised by petitioner is clearly a question of fact which requires a review of the
evidence presented. The Supreme Court is not a trier of facts.13 It is not the function of this
Court to examine, review or evaluate the evidence all over again,14specially on evidence
raised for the first time on appeal.15

A petition for review under Rule 45 of the Rules of Court should cover only questions of
law, thus:

Section 1. Filing of petition with Supreme Court. A party desiring to appeal by

certiorari from a judgment or final order or resolution of the Court of Appeals,
the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by
law, may file with the Supreme Court a verified petition for review on

Page 6 of 61
 certiorari. The petition shall raise only questions of law which must be distinctly
set forth. (Emphasis supplied)

As a rule, the findings of fact of the Court of Appeals are final and conclusive and this
Court will not review them on appeal,16 subject to exceptions such as those enumerated by
this Court in Development Bank of the Philippines v. Traders Royal Bank:17

The jurisdiction of the Court in cases brought before it from the appellate court is
limited to reviewing errors of law, and findings of fact of the Court of Appeals are
conclusive upon the Court since it is not the Courts function to analyze and weigh
the evidence all over again. Nevertheless, in several cases, the Court enumerated the
exceptions to the rule that factual findings of the Court of Appeals are binding on
the Court: (1) when the findings are grounded entirely on speculations, surmises or
conjectures; (2) when the inference made is manifestly mistaken, absurd or
impossible; (3) when there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of fact are conflicting;
(6) when in making its findings the Court of Appeals went beyond the issues of the
case, or its findings are contrary to the admissions of both the appellant and
the appellee; (7) when the findings are contrary to that of the trial court; (8) when
the findings are conclusions without citation of specific evidence on which they are
based; (9) when the facts set forth in the petition as well as in the petitioners main
and reply briefs are not disputed by the respondent; (10) when the findings of fact
are premised on the supposed absence of evidence and contradicted by the evidence
on record; or (11) when the Court of Appeals manifestly overlooked certain relevant
facts not disputed by the parties, which, if properly considered, would justify a
different conclusion.18

Petitioner failed to show that this case falls under any of the exceptions. The finding of the
Labor Arbiter that petitioners bakery and his residence are located at the same place was
not reversed by the NLRC.19 Furthermore, the Court of Appeals upheld this finding of the
Labor Arbiter. We find no justifiable reason to deviate from the findings and ruling of the
Court of Appeals.

WHEREFORE, we DENY the petition. We AFFIRM the 29 June 2010 Decision and the
5 January 2011 Resolution of the Court of Appeals in CA-G.R. SP No. 110728.

SO ORDERED.

Page 7 of 61
Case No. 2

MA. LOURDES T. DOMINGO, G.R. No. 155831

Petitioner,

- versus -

ROGELIO I. RAYALA, G.R. No. 155840

Respondent.

x-------------------------x

ROGELIO I. RAYALA,

Petitioner,

- versus -

OFFICE OF THE PRESIDENT; RONALDO V. ZAMORA,

in his capacity as Executive Secretary; ROY V.
SENERES, in his capacity as Chairman of the
National Labor Relations Commission (in lieu of
RAUL T. AQUINO, in his capacity as Acting
Chairman of the National labor Relations
Commission); and MA. LOURDES T. DOMINGO,

Respondents. G.R. No. 158700

x-------------------------x
Present:
The REPUBLIC OF THE PHILIPPINES, represented by
the OFFICE OF THE PRESIDENT; and ALBERTO G.
ROMULO, in his capacity as Executive Secretary, YNARES-SANTIAGO, J.,
Petitioners, Chairperson,

AUSTRIA-MARTINEZ,

CORONA,*

Page 8 of 61
 - versus - NACHURA, and

REYES, JJ.

Promulgated:

ROGELIO I. RAYALA, February 18, 2008

Respondent.

x------------------------------------------------------------------------------------x

DECISION

NACHURA, J.:

Sexual harassment is an imposition of misplaced superiority which is enough to dampen an

employees spirit and her capacity for advancement. It affects her sense of judgment; it changes her
life.[1]

Before this Court are three Petitions for Review on Certiorari assailing the October 18, 2002
Resolution of the CAs Former Ninth Division[2] in CA-G.R. SP No. 61026. The Resolution modified the
December 14, 2001 Decision[3] of the Court of Appeals Eleventh Division, which had affirmed the
Decision of the Office of the President (OP) dismissing from the service then National Labor Relations
Commission (NLRC) Chairman Rogelio I. Rayala (Rayala) for disgraceful and immoral conduct.

All three petitions stem from the same factual antecedents.

Page 9 of 61
 On November 16, 1998, Ma. Lourdes T. Domingo (Domingo), then Stenographic Reporter III at
the NLRC, filed a Complaint for sexual harassment against Rayala before Secretary Bienvenido
Laguesma of the Department of Labor and Employment (DOLE).

To support the Complaint, Domingo executed an Affidavit narrating the incidences of sexual
harassment complained of, thus:

xxxx

4. Sa simula ay pabulong na sinasabihan lang ako ni Chairman Rayala ng mga salitang

Lot, gumaganda ka yata?

5. Sa ibang mga pagkakataon nilalapitan na ako ni Chairman at hahawakan ang aking

balikat sabay pisil sa mga ito habang ako ay nagta-type at habang nagbibigay
siya ng diktasyon. Sa mga pagkakataong ito, kinakabahan ako.Natatakot na
baka mangyari sa akin ang mga napapabalitang insidente na nangyari na noon
tungkol sa mga sekretarya niyang nagbitiw gawa ng mga mahahalay na
panghihipo ni Chairman.

6. Noong ika-10 ng Setyembre, 1998, nang ako ay nasa 8th Floor, may nagsabi sa akin
na kailangan akong bumaba sa 7th Floor kung nasaan ang aming opisina dahil
sa may koreksyon daw na gagawin sa mga papel na tinayp ko. Bumaba naman
ako para gawin ito. Habang ginagawa ko ito, lumabas si Chairman Rayala sa
silid ni Mr. Alex Lopez. Inutusan ako ni Chairman na sumunod sa kaniyang
silid. Nang nasa silid na kami, sinabi niya sa akin:

Chairman: Lot, I like you a lot. Naiiba ka sa lahat.

At pagkatapos ako ay kaniyang inusisa tungkol sa mga personal na bagay sa aking

buhay. Ang ilan dito ay tungkol sa aking mga magulang, kapatid, pag-aaral at kung may
boyfriend na raw ba ako.

Page 10 of 61
 Chairman: May boyfriend ka na ba?

Lourdes: Dati nagkaroon po.

Chairman: Nasaan na siya?

Lourdes: Nag-asawa na ho.

Chairman: Bakit hindi kayo nagkatuluyan?

Lourdes: Nainip po.

Chairman: Pagkatapos mo ng kurso mo ay kumuha ka ng Law at ako

ang bahala sa iyo, hanggang ako pa ang Chairman dito.

Pagkatapos ay kumuha siya ng pera sa kaniyang amerikana at inaabot sa akin.

Chairman: Kuhanin mo ito.

Lourdes: Huwag na ho hindi ko kailangan.

Chairman: Hindi sige, kuhanin mo. Ayusin mo ang dapat ayusin.

Tinanggap ko po ang pera ng may pag-aalinlangan. Natatakot at kinakabahan na kapag

hindi ko tinanggap ang pera ay baka siya magagalit kasabay na rito ang pagtapon sa
akin kung saan-saan opisina o kaya ay tanggalin ako sa posisyon.

Chairman: Paglabas mo itago mo ang pera. Ayaw ko ng may makaka-

alam nito. Just the two of us.

Lourdes: Bakit naman, Sir?

Chairman: Basta. Maraming tsismosa diyan sa labas. But I dont give

them a damn. Hindi ako mamatay sa kanila.

Tumayo na ako at lumabas. Pumanhik na ako ng 8th Floor at pumunta ako sa

officemate ko na si Agnes Magdaet. Ikinwento ko ang nangyari sa akin sa opisina ni
Chairman. Habang kinikwento ko ito kay Agnes ay binilang namin ang pera na

Page 11 of 61
 nagkakahalaga ng tatlong libong piso (PHP 3,000). Sinabi ni Agnes na isauli ko raw ang
pera, pero ang sabi ko ay natatakot ako baka magalit si Sir. Nagsabi agad kami kay EC
Perlita Velasco at sinalaysay ko ang nangyari. Sinabi niya na isauli ko ang pera at noong
araw ding iyon ay nagpasiya akong isauli na nga ito ngunit hindi ako nagkaroon ng
pagkakataon dahil marami siyang naging bisita. Isinauli ko nga ang pera noong Lunes,
Setyembre 14, 1998.

7. Noong huling linggo ng Setyembre, 1998, ay may tinanong din sa akin si Chairman
Rayala na hindi ko masikmura, at sa aking palagay at tahasang pambabastos sa akin.

Chairman: Lot, may ka live-in ka ba?

Lourdes: Sir, wala po.

Chairman: Bakit malaki ang balakang mo?

Lourdes: Kayo, Sir ha! Masama sa amin ang may ka live-in.

Chairman: Bakit, ano ba ang relihiyon ninyo?

Lourdes: Catholic, Sir. Kailangan ikasal muna.

Chairman: Bakit ako, hindi kasal.

Lourdes: Sir, di magpakasal kayo.

Chairman: Huh. Ibahin na nga natin ang usapan.

8. Noong Oktubre 29, 1998, ako ay pumasok sa kwarto ni Chairman Rayala. Ito ay sa
kadahilanang ang fax machine ay nasa loob ng kaniyang kwarto. Ang nag-aasikaso
nito, si Riza Ocampo, ay naka-leave kaya ako ang nag-asikaso nito noong araw na
iyon. Nang mabigyan ko na ng fax tone yung kausap ko, pagharap ko sa kanan ay
nakaharang sa dadaanan ko si Chairman Rayala. Tinitingnan ako sa mata at ang titig
niya ay umuusad mula ulo hanggang dibdib tapos ay ngumiti na may mahalay na
pakahulugan.

9. Noong hapon naman ng pareho pa ring petsa, may nag-aapply na sekretarya sa

opisina, sinabi ko ito kay Chairman Rayala:

Page 12 of 61
 Lourdes: Sir, si Pinky po yung applicant, mag-papainterview po yata sa
inyo.

Chairman: Sabihin mo magpa-pap smear muna siya

Chairman: O sige, i-refer mo kay Alex. (Alex Lopez, Chief of Staff).

10. Noong Nobyembre 9, 1998, ako ay tinawag ni Chairman Rayala sa kaniyang opisina
upang kuhanin ko ang diktasyon niya para kay ELA Oscar Uy. Hindi pa kami
nakakatapos ng unang talata, may pumasok na bisita si Chairman, si Baby Pangilinan
na sinamahan ni Riza Ocampo. Pinalabas muna ako ni Chairman.Nang maka-alis na si
Ms. Pangilinan, pinapasok na niya ako ulit. Umupo ako.Lumapit sa likuran ko si
Chairman, hinawakan ang kaliwang balikat ko na pinipisil ng kanang kamay niya at
sinabi:

Chairman: Saan na ba tayo natapos?

Palakad-lakad siya sa aking likuran habang nag-didikta. Huminto siya pagkatapos, at

nilagay niya ang kanang kamay niya sa aking kanang balikat at pinisil-pisil ito
pagkatapos ay pinagapang niya ito sa kanang bahagi ng aking leeg, at pinagapang
hanggang kanang tenga at saka kiniliti. Dito ko inalis ang kaniyang kamay sa
pamamagitan ng aking kaliwang kamay. At saka ko sinabi:

Lourdes: Sir, yung kamay ninyo alisin niyo!

Natapos ko rin ang liham na pinagagawa niya pero halos hindi ko na maintindihan ang
na-isulat ko dahil sa takot at inis na nararamdaman ko.[4]

After the last incident narrated, Domingo filed for leave of absence and asked to be
immediately transferred. Thereafter, she filed the Complaint for sexual harassment on the basis of
Administrative Order No. 250, the Rules and Regulations Implementing RA 7877 in the Department of
Labor and Employment.

Page 13 of 61
 Upon receipt of the Complaint, the DOLE Secretary referred the Complaint to the OP, Rayala
being a presidential appointee. The OP, through then Executive Secretary Ronaldo Zamora, ordered
Secretary Laguesma to investigate the allegations in the Complaint and create a committee for such
purpose. On December 4, 1998, Secretary Laguesma issued Administrative Order (AO) No. 280,
Series of 1998,[5] constituting a Committee on Decorum and Investigation (Committee) in accordance
with Republic Act (RA) 7877, the Anti-Sexual Harassment Act of 1995.[6]

The Committee heard the parties and received their respective evidence. On March 2, 2000,
the Committee submitted its report and recommendation to Secretary Laguesma. It found Rayala
guilty of the offense charged and recommended the imposition of the minimum penalty provided
under AO 250, which it erroneously stated as suspension for six (6) months.

The following day, Secretary Laguesma submitted a copy of the Committee Report and
Recommendation to the OP, but with the recommendation that the penalty should be suspension for
six (6) months and one (1) day, in accordance with AO 250.

On May 8, 2000, the OP, through Executive Secretary Zamora, issued AO 119,[7] the pertinent
portions of which read:

Upon a careful scrutiny of the evidence on record, I concur with the findings of
the Committee as to the culpability of the respondent [Rayala], the same having been
established by clear and convincing evidence. However, I disagree with the
recommendation that respondent be meted only the penalty of suspension for six (6)
months and one (1) day considering the circumstances of the case.

What aggravates respondents situation is the undeniable circumstance that he

took advantage of his position as the superior of the complainant. Respondent
occupies the highest position in the NLRC, being its Chairman. As head of said office, it
was incumbent upon respondent to set an example to the others as to how they
should conduct themselves in public office, to see to it that his subordinates work
efficiently in accordance with Civil Service Rules and Regulations, and to provide them
with healthy working atmosphere wherein co-workers treat each other with respect,
courtesy and cooperation, so that in the end the public interest will be benefited (City
Mayor of Zamboanga vs. Court of Appeals, 182 SCRA 785 [1990]).

Page 14 of 61
 What is more, public service requires the utmost integrity and strictest
discipline (Gano vs. Leonen, 232 SCRA 99 [1994]). Thus, a public servant must exhibit
at all times the highest sense of honesty and integrity, and utmost devotion and
dedication to duty (Sec. 4 (g), RA 6713), respect the rights of others and shall refrain
from doing acts contrary to law, and good morals (Sec. 4(c)). No less than the
Constitution sanctifies the principle that a public office is a public trust, and enjoins all
public officers and employees to serve with the highest degree of responsibility,
integrity, loyalty and efficiency (Section 1, Article XI, 1987 Constitution).

Given these established standards, I see respondents acts not just [as] a failure
to give due courtesy and respect to his co-employees (subordinates) or to maintain
good conduct and behavior but defiance of the basic norms or virtues which a
government official must at all times uphold, one that is contrary to law and public
sense of morality. Otherwise stated, respondent to whom stricter standards must
apply being the highest official [of] the NLRC had shown an attitude, a frame of mind,
a disgraceful conduct, which renders him unfit to remain in the service.

WHEREFORE, in view of the foregoing, respondent Rogelio I. Rayala, Chairman,

National Labor Relations Commission, is found guilty of the grave offense of
disgraceful and immoral conduct and is hereby DISMISSED from the service effective
upon receipt of this Order.

SO ORDER[ED].

Rayala filed a Motion for Reconsideration, which the OP denied in a Resolution[8]dated May 24, 2000.
He then filed a Petition for Certiorari and Prohibition with Prayer for Temporary Restraining Order
under Rule 65 of the Revised Rules on Civil Procedure before this Court on June 14, 2000. [9] However,
the same was dismissed in a Resolution dated June 26, 2000 for
disregarding the hierarchy of courts.[10] Rayala filed a Motion for

Reconsideration[11] on August 15, 2000. In its Resolution[12] dated September 4, 2000, the Court
recalled its June 26 Resolution and referred the petition to the Court of Appeals (CA) for appropriate
action.

Page 15 of 61
 The CA rendered its Decision[13] on December 14, 2001. It held that there was sufficient
evidence on record to create moral certainty that Rayala committed the acts he was charged with. It
said:

The complainant narrated her story complete with details. Her straightforward and
uninhibited testimony was not emasculated by the declarations of Commissioner
Rayala or his witnesses. x x x

Moreover, Commissioner Rayala has not proven any vicious motive for
Domingo and her witnesses to invent their stories. It is very unlikely that they would
perjure themselves only to accommodate the alleged conspiracy to oust petitioner
from office. Save for his empty conjectures and speculations, Rayala failed to
substantiate his contrived conspiracy. It is a hornbook doctrine that conspiracy must
be proved by positive and convincing evidence (People v. Noroa, 329 SCRA 502
[2000]). Besides, it is improbable that the complainant would concoct a story of sexual
harassment against the highest official of the NLRC and thereby expose herself to the
possibility of losing her job, or be the subject of reprisal from her superiors and
perhaps public ridicule if she was not telling the truth.

It also held that Rayalas dismissal was proper. The CA pointed out that Rayala was dismissed
for disgraceful and immoral conduct in violation of RA 6713, the Code of Conduct and Ethical
Standards for Public Officials and Employees. It held that the OP was correct in concluding that
Rayalas acts violated RA 6713:

Indeed, [Rayala] was a public official, holding the Chairmanship of the National
Labor Relations Commission, entrusted with the sacred duty of administering justice.
Occupying as he does such an exalted position, Commissioner Rayala must pay a high
price for the honor bestowed upon him. He must comport himself at all times in such
a manner that the conduct of his everyday life should be beyond reproach and free
from any impropriety. That the acts complained of were committed within the
sanctuary of [his] office compounded the objectionable nature of his wrongdoing. By
daring to violate the complainant within the solitude of his chambers, Commissioner

Page 16 of 61
 Rayala placed the integrity of his office in disrepute. His disgraceful and immoral
conduct warrants his removal from office.[14]

Thus, it dismissed the petition, to wit:

IN VIEW OF ALL THE FOREGOING, the instant petition is hereby DISMISSED and
Administrative Order No. 119 as well [as] the Resolution of the Office of the President
in O.P. Case No. 00-E-9118 dated May 24, 2000 are AFFIRMED IN TOTO. No cost.

SO ORDERED.[15]

Rayala timely filed a Motion for Reconsideration. Justices Vasquez and Tolentino voted to
affirm the December 14 Decision. However, Justice Reyes dissented mainly because AO 250 states
that the penalty imposable is suspension for six (6) months and one (1) day. [16] Pursuant to the
internal rules of the CA, a Special Division of Five was constituted.[17] In its October 18, 2002
Resolution, the CA modified its earlier Decision:

ACCORDINGLY, the Decision dated December [14], 2001 is MODIFIED to the

effect that the penalty of dismissal is DELETED and instead the penalty of suspension
from service for the maximum period of one (1) year is HEREBY IMPOSED upon the
petitioner. The rest of the challenged decision stands.

SO ORDERED.

Domingo filed a Petition for Review[18] before this Court, which we denied in our February 19,
2003 Resolution for having a defective verification. She filed a Motion for Reconsideration, which the
Court granted; hence, the petition was reinstated.

Page 17 of 61
 Rayala likewise filed a Petition for Review[19] with this Court essentially arguing that he is not
guilty of any act of sexual harassment.

Meanwhile, the Republic filed a Motion for Reconsideration of the CAs October 18, 2002
Resolution. The CA denied the same in its June 3, 2003 Resolution, the dispositive portion of which
reads:

ACCORDINGLY, by a majority vote, public respondents Motion for

Reconsideration, (sic) is DENIED.

SO ORDERED.

The Republic then filed its own Petition for Review.[20]

On June 28, 2004, the Court directed the consolidation of the three (3) petitions.

G.R. No. 155831

Domingo assails the CAs resolution modifying the penalty imposed by the Office of the
President. She raises this issue:

The Court of Appeals erred in modifying the penalty for the respondent from dismissal
to suspension from service for the maximum period of one year. The President has the
prerogative to determine the proper penalty to be imposed on an erring Presidential
appointee. The President was well within his power when he fittingly used that
prerogative in deciding to dismiss the respondent from the service.[21]

Page 18 of 61
 She argues that the power to remove Rayala, a presidential appointee, is lodged with the
President who has control of the entire Executive Department, its bureaus and offices. The OPs
decision was arrived at after affording Rayala due process. Hence, his dismissal from the service is a
prerogative that is entirely with the President.[22]

As to the applicability of AO No. 250, she argues that the same was not intended to cover
cases against presidential appointees. AO No. 250 refers only to the instances wherein the DOLE
Secretary is the disciplining authority, and thus, the AO does not circumscribe the power of the
President to dismiss an erring presidential appointee.

G.R. No. 155840

In his petition, Rayala raises the following issues:

I. CONTRARY TO THE FINDINGS OF THE COURT OF APPEALS, THE ACTS OF

HEREIN PETITIONER DO NOT CONSTITUTE SEXUAL HARASSMENT AS LAID
DOWN BY THE En BancRULING IN THE CASE OF AQUINO vs. ACOSTA, ibid., AS
WELL AS IN THE APPLICATION OF EXISTING LAWS.

II. CONTRARY TO THE FINDINGS OF THE HONORABLE COURT OF APPEALS,

INTENT IS AN INDISPENSABLE ELEMENT IN A CASE FOR SEXUAL
HARASSMENT. THE HONORABLE COURT ERRED IN ITS FINDING THAT IT IS AN
OFFENSE THAT IS MALUM PROHIBITUM.

III. THE INVESTIGATION COMMITTEE, THE OFFICE OF THE PRESIDENT, AND

NOW, THE HONORABLE COURT OF APPEALS, HAS MISAPPLIED AND
EXPANDED THE DEFINITION OF SEXUAL HARASSMENT IN THE WORKPLACE
UNDER R.A. No. 7877, BY APPLYING DOLE A.O. 250, WHICH RUNS COUNTER
TO THE RECENT PRONOUNCEMENTS OF THIS HONORABLE SUPREME
COURT.[23]

Page 19 of 61
 Invoking Aquino v. Acosta,[24] Rayala argues that the case is the definitive ruling on what
constitutes sexual harassment. Thus, he posits that for sexual harassment to exist under RA 7877,
there must be: (a) demand, request, or requirement of a sexual favor; (b) the same is made a pre-
condition to hiring, re-employment, or continued employment; or (c) the denial thereof results in
discrimination against the employee.

Rayala asserts that Domingo has failed to allege and establish any sexual favor, demand, or
request from petitioner in exchange for her continued employment or for her promotion. According
to Rayala, the acts imputed to him are without malice or ulterior motive. It was merely Domingos
perception of malice in his alleged acts a product of her own imagination [25] that led her to file the
sexual harassment complaint.

Likewise, Rayala assails the OPs interpretation, as upheld by the CA, that RA 7877 is malum
prohibitum such that the defense of absence of malice is unavailing. He argues that sexual
harassment is considered an offense against a particular person, not against society as a whole. Thus,
he claims that intent is an essential element of the offense because the law requires as
a conditio sine qua nonthat a sexual favor be first sought by the offender in order to achieve certain
specific results. Sexual harassment is committed with the perpetrators deliberate intent to commit
the offense.[26]

Rayala next argues that AO 250 expands the acts proscribed in RA 7877. In particular, he
assails the definition of the forms of sexual harassment:

Rule IV

FORMS OF SEXUAL HARASSMENT

Section 1. Forms of Sexual Harassment. Sexual harassment may be committed

in any of the following forms:

Page 20 of 61
 a) Overt sexual advances;

b) Unwelcome or improper gestures of affection;

c) Request or demand for sexual favors including but not limited to going out
on dates, outings or the like for the same purpose;

d) Any other act or conduct of a sexual nature or for purposes of sexual

gratification which is generally annoying, disgusting or offensive to the victim. [27]

He posits that these acts alone without corresponding demand, request, or requirement do
not constitute sexual harassment as contemplated by the law.[28]He alleges that the rule-making
power granted to the employer in Section 4(a) of RA 7877 is limited only to procedural matters. The
law did not delegate to the employer the power to promulgate rules which would provide other or
additional forms of sexual harassment, or to come up with its own definition of sexual
harassment.[29]

G.R. No. 158700

The Republic raises this issue:

Whether or not the President of the Philippines may validly dismiss respondent
Rayala as Chairman of the NLRC for committing acts of sexual harassment. [30]

The Republic argues that Rayalas acts constitute sexual harassment under AO 250. His acts
constitute unwelcome or improper gestures of affection and are acts or conduct of a sexual nature,
which are generally annoying or offensive to the victim.[31]

Page 21 of 61
 It also contends that there is no legal basis for the CAs reduction of the penalty imposed by
the OP. Rayalas dismissal is valid and warranted under the circumstances. The power to remove the
NLRC Chairman solely rests upon the President, limited only by the requirements under the law and
the due process clause.

The Republic further claims that, although AO 250 provides only a one (1) year suspension, it
will not prevent the OP from validly imposing the penalty of dismissal on Rayala. It argues that even
though Rayala is a presidential appointee, he is still subject to the Civil Service Law. Under the Civil
Service Law, disgraceful and immoral conduct, the acts imputed to Rayala, constitute grave
misconduct punishable by dismissal from the service.[32] The Republic adds that Rayalas position is
invested with public trust and his acts violated that trust; thus, he should be dismissed from the
service.

This argument, according to the Republic, is also supported by Article 215 of the Labor Code,
which states that the Chairman of the NLRC holds office until he reaches the age of 65 only during
good behavior.[33] Since Rayalas security of tenure is conditioned upon his good behavior, he may be
removed from office if it is proven that he has failed to live up to this standard.

All the issues raised in these three cases can be summed up in two ultimate questions,
namely:

(1) Did Rayala commit sexual harassment?

(2) If he did, what is the applicable penalty?

Initially, however, we must resolve a procedural issue raised by Rayala. He accuses the Office
of the Solicitor General (OSG), as counsel for the Republic, of forum shopping because it filed a
motion for reconsideration of the decision in CA-G.R. SP No. 61026 and then filed a comment in G.R.
No. 155840 before this Court.

Page 22 of 61
 We do not agree.

Forum shopping is an act of a party, against whom an adverse judgment or order has been
rendered in one forum, of seeking and possibly securing a favorable opinion in another forum, other
than by appeal or special civil action for certiorari.[34] It consists of filing multiple suits involving the
same parties for the same cause of action, either simultaneously or successively, for the purpose of
obtaining a favorable judgment.[35]

There is forum shopping when the following elements concur: (1) identity of the parties or, at
least, of the parties who represent the same interest in both actions; (2) identity of the rights
asserted and relief prayed for, as the latter is founded on the same set of facts; and (3) identity of the
two preceding particulars such that any judgment rendered in the other action will amount to res
judicata in the action under consideration or will constitute litis pendentia.[36]

Reviewing the antecedents of these consolidated cases, we note that the CA rendered the
assailed Resolution on October 18, 2002. The Republic filed its Motion for Reconsideration on
November 22, 2002. On the other hand, Rayala filed his petition before this Court on November 21,
2002. While the Republics Motion for Reconsideration was pending resolution before the CA, on
December 2, 2002, it was directed by this Court to file its Comment on Rayalas petition, which it
submitted on June 16, 2003.

When the CA denied the Motion for Reconsideration, the Republic filed its own Petition for
Review with this Court on July 3, 2003. It cited in its Certification and Verification of a Non-Forum
Shopping (sic), that there was a case involving the same facts pending before this Court denominated
as G.R. No. 155840. With respect to Domingos petition, the same had already been dismissed on
February 19, 2003. Domingos petition was reinstated on June 16, 2003 but the resolution was
received by the OSG only on July 25, 2003, or after it had filed its own petition.[37]

Based on the foregoing, it cannot be said that the OSG is guilty of forum shopping. We must
point out that it was Rayala who filed the petition in the CA, with the Republic as the adverse party.
Rayala himself filed a motion for reconsideration of the CAs December 21, 2001 Decision, which led
to a more favorable ruling, i.e., the lowering of the penalty from dismissal to one-year suspension.
The parties adversely affected by this ruling (Domingo and the Republic) had the right to question

Page 23 of 61
the same on motion for reconsideration. But Domingo directly filed a Petition for Review with this
Court, as did Rayala. When the Republic opted to file a motion for reconsideration, it was merely
exercising a right. That Rayala and Domingo had by then already filed cases before the SC did not
take away this right. Thus, when this Court directed the Republic to file its Comment on Rayalas
petition, it had to comply, even if it had an unresolved motion for reconsideration with the CA, lest it
be cited for contempt.

Accordingly, it cannot be said that the OSG file[d] multiple suits involving the same parties for
the same cause of action, either simultaneously or successively, for the purpose of obtaining a
favorable judgment.

We now proceed to discuss the substantive issues.

It is noteworthy that the five CA Justices who deliberated on the case were unanimous in
upholding the findings of the Committee and the OP. They found the assessment made by the
Committee and the OP to be a meticulous and dispassionate analysis of the testimonies of the
complainant (Domingo), the respondent (Rayala), and their respective witnesses. [38] They differed
only on the appropriate imposable penalty.

That Rayala committed the acts complained of and was guilty of sexual harassment is,
therefore, the common factual finding of not just one, but three independent bodies: the
Committee, the OP and the CA. It should be remembered that when supported by substantial
evidence, factual findings made by quasi-judicial and administrative bodies are accorded great
respect and even finality by the courts.[39] The principle, therefore, dictates that such findings should
bind us.[40]

Indeed, we find no reason to deviate from this rule. There appears no valid ground for this
Court to review the factual findings of the CA, the OP, and the Investigating Committee. These
findings are now conclusive on the Court. And quite significantly, Rayala himself admits to having
committed some of the acts imputed to him.

Page 24 of 61
 He insists, however, that these acts do not constitute sexual harassment, because Domingo
did not allege in her complaint that there was a demand, request, or requirement of a sexual favor as
a condition for her continued employment or for her promotion to a higher position.[41] Rayala urges
us to apply to his case our ruling in Aquino v. Acosta.[42]

We find respondents insistence unconvincing.

Basic in the law of public officers is the three-fold liability rule, which states that the wrongful
acts or omissions of a public officer may give rise to civil, criminal and administrative liability. An
action for each can proceed independently of the others.[43] This rule applies with full force to sexual
harassment.

The law penalizing sexual harassment in our jurisdiction is RA 7877.Section 3 thereof defines
work-related sexual harassment in this wise:

Sec. 3. Work, Education or Training-related Sexual Harassment Defined. Work,

education or training-related sexual harassment is committed by an employer, manager,
supervisor, agent of the employer, teacher, instructor, professor, coach, trainor, or any
other person who, having authority, influence or moral ascendancy over another in a
work or training or education environment, demands, requests or otherwise requires
any sexual favor from the other, regardless of whether the demand, request or
requirement for submission is accepted by the object of said Act.

(a) In a work-related or employment environment, sexual harassment is

committed when:

(1) The sexual favor is made as a condition in the hiring or in the employment,
re-employment or continued employment of said individual, or in granting said
individual favorable compensation, terms, conditions, promotions, or privileges; or the
refusal to grant the sexual favor results in limiting, segregating or classifying the
employee which in a way would discriminate, deprive or diminish employment
opportunities or otherwise adversely affect said employee;

(2) The above acts would impair the employees rights or privileges under
existing labor laws; or

(3) The above acts would result in an intimidating, hostile, or offensive

environment for the employee.

Page 25 of 61
This section, in relation to Section 7 on penalties, defines the criminal aspect of the unlawful act of
sexual harassment. The same section, in relation to Section 6, authorizes the institution of an
independent civil action for damages and other affirmative relief.

Section 4, also in relation to Section 3, governs the procedure for administrative cases, viz.:

Sec. 4. Duty of the Employer or Head of Office in a Work-related, Education or

Training Environment. It shall be the duty of the employer or the head of the work-
related, educational or training environment or institution, to prevent or deter the
commission of acts of sexual harassment and to provide the procedures for the
resolution, settlement or prosecution of acts of sexual harassment. Towards this end,
the employer or head of office shall:

(a) Promulgate appropriate rules and regulations in

consultation with and jointly approved by the employees
or students or trainees, through their duly designated
representatives, prescribing the procedure for the
investigation or sexual harassment cases and the
administrative sanctions therefor.

Administrative sanctions shall not be a bar to

prosecution in the proper courts for unlawful acts of
sexual harassment.

The said rules and regulations issued pursuant to

this section (a) shall include, among others, guidelines on
proper decorum in the workplace and educational or
training institutions.

(b) Create a committee on decorum and investigation of

cases on sexual harassment. The committee shall conduct
meetings, as the case may be, with other officers and
employees, teachers, instructors, professors, coaches,
trainors and students or trainees to increase understanding
and prevent incidents of sexual harassment. It shall also
conduct the investigation of the alleged cases constituting
sexual harassment.

In the case of a work-related environment, the committee shall be composed of

at least one (1) representative each from the management, the union, if any, the
employees from the supervisory rank, and from the rank and file employees.

In the case of the educational or training institution, the committee shall be

composed of at least one (1) representative from the administration, the trainors,
teachers, instructors, professors or coaches and students or trainees, as the case maybe.

Page 26 of 61
 The employer or head of office, educational or training institution shall
disseminate or post a copy of this Act for the information of all concerned.

The CA, thus, correctly ruled that Rayalas culpability is not to be determined solely on the
basis of Section 3, RA 7877, because he is charged with the administrative offense, not the criminal
infraction, of sexual harassment.[44] It should be enough that the CA, along with the Investigating
Committee and the Office of the President, found substantial evidence to support the administrative
charge.

Yet, even if we were to test Rayalas acts strictly by the standards set in Section 3, RA 7877, he
would still be administratively liable. It is true that this provision calls for a demand, request or
requirement of a sexual favor. But it is not necessary that the demand, request or requirement of a
sexual favor be articulated in a categorical oral or written statement. It may be discerned, with equal
certitude, from the acts of the offender. Holding and squeezing Domingos shoulders, running his
fingers across her neck and tickling her ear, having inappropriate conversations with her, giving her
money allegedly for school expenses with a promise of future privileges, and making statements with
unmistakable sexual overtones all these acts of Rayala resound with deafening clarity the unspoken
request for a sexual favor.

Likewise, contrary to Rayalas claim, it is not essential that the demand, request or
requirement be made as a condition for continued employment or for promotion to a higher
position. It is enough that the respondents acts result in creating an intimidating, hostile or offensive
environment for the employee.[45]That the acts of Rayala generated an intimidating and hostile
environment for Domingo is clearly shown by the common factual finding of the Investigating
Committee, the OP and the CA that Domingo reported the matter to an officemate and, after the last
incident, filed for a leave of absence and requested transfer to another unit.

Rayalas invocation of Aquino v. Acosta[46] is misplaced, because the factual setting in that case
is different from that in the case at bench. In Aquino, Atty. Susan Aquino, Chief of the Legal and
Technical Staff of the Court of Tax Appeals (CTA), charged then CTA Presiding Judge (now Presiding
Justice) Ernesto Acosta of sexual harassment. She complained of several incidents when Judge Acosta
allegedly kissed her, embraced her, and put his arm around her shoulder. The case was referred to
CA Justice Josefina G. Salonga for investigation. In her report, Justice Salonga found that the
complainant failed to show by convincing evidence that the acts of Judge Acosta in greeting her with
a kiss on the cheek, in a `beso-beso fashion, were carried out with lustful and lascivious desires or

Page 27 of 61
were motivated by malice or ill motive. It is clear from the circumstances that most of the kissing
incidents were done on festive and special occasions, and they took place in the presence of other
people and the same was by reason of the exaltation or happiness of the moment. Thus, Justice
Salonga concluded:

In all the incidents complained of, the respondent's pecks on the cheeks of the
complainant should be understood in the context of having been done on the
occasion of some festivities, and not the assertion of the latter that she was singled
out by Judge Acosta in his kissing escapades. The busses on her cheeks were simply
friendly and innocent, bereft of malice and lewd design. The fact that respondent
judge kisses other people on the cheeks in the 'beso-beso' fashion, without malice,
was corroborated by Atty. Florecita P. Flores, Ms. Josephine Adalem and Ms. Ma.
Fides Balili, who stated that they usually practice 'beso-beso' or kissing on the cheeks,
as a form of greeting on occasions when they meet each other, like birthdays,
Christmas, New Year's Day and even Valentine's Day, and it does not matter whether
it is Judge Acosta's birthday or their birthdays. Theresa Cinco Bactat, a lawyer who
belongs to complainant's department, further attested that on occasions like
birthdays, respondent judge would likewise greet her with a peck on the cheek in a
'beso-beso' manner. Interestingly, in one of several festive occasions, female
employees of the CTA pecked respondent judge on the cheek where Atty. Aquino was
one of Judge Acosta's well wishers.

In sum, no sexual harassment had indeed transpired on those six occasions.

Judge Acosta's acts of bussing Atty. Aquino on her cheek were merely forms of
greetings, casual and customary in nature. No evidence of intent to sexually harass
complainant was apparent, only that the innocent acts of 'beso-beso' were given
malicious connotations by the complainant. In fact, she did not even relate to anyone
what happened to her. Undeniably, there is no manifest sexual undertone in all those
incidents.[47]

This Court agreed with Justice Salonga, and Judge Acosta was exonerated.

To repeat, this factual milieu in Aquino does not obtain in the case at bench. While in Aquino, the
Court interpreted the acts (of Judge Acosta) as casual gestures of friendship and camaraderie, done

Page 28 of 61
during festive or special occasions and with other people present, in the instant case, Rayalas acts of
holding and squeezing Domingos shoulders, running his fingers across her neck and tickling her ear,
and the inappropriate comments, were all made in the confines of Rayalas office when no other
members of his staff were around. More importantly, and a circumstance absent in Aquino, Rayalas
acts, as already adverted to above, produced a hostile work environment for Domingo, as shown by
her having reported the matter to an officemate and, after the last incident, filing for a leave of
absence and requesting transfer to another unit.

Rayala also argues that AO 250 does not apply to him. First, he argues that AO 250 does not
cover the NLRC, which, at the time of the incident, was under the DOLE only for purposes of program
and policy coordination. Second, he posits that even assuming AO 250 is applicable to the NLRC, he is
not within its coverage because he is a presidential appointee.

We find, however, that the question of whether or not AO 250 covers Rayala is of no real
consequence. The events of this case unmistakably show that the administrative charges against
Rayala were for violation of RA 7877; that the OP properly assumed jurisdiction over the
administrative case; that the participation of the DOLE, through the Committee created by the
Secretary, was limited to initiating the investigation process, reception of evidence of the parties,
preparation of the investigation report, and recommending the appropriate action to be taken by the
OP. AO 250 had never really been applied to Rayala. If it was used at all, it was to serve merely as an
auxiliary procedural guide to aid the Committee in the orderly conduct of the investigation.

Next, Rayala alleges that the CA erred in holding that sexual harassment is an offense malum
prohibitum. He argues that intent is an essential element in sexual harassment, and since the acts
imputed to him were done allegedly without malice, he should be absolved of the charges against
him.

We reiterate that what is before us is an administrative case for sexual harassment. Thus,
whether the crime of sexual harassment is malum in se or malum prohibitum is immaterial.

We also reject Rayalas allegations that the charges were filed because of a conspiracy to get
him out of office and thus constitute merely political harassment. A conspiracy must be proved by
clear and convincing evidence. His bare assertions cannot stand against the evidence presented by

Page 29 of 61
Domingo. As we have already ruled, the acts imputed to Rayala have been proven as fact. Moreover,
he has not proven any ill motive on the part of Domingo and her witnesses which would be ample
reason for her to conjure stories about him. On the contrary, ill motive is belied by the fact that
Domingo and her witnesses all employees of the NLRC at that time stood to lose their jobs or suffer
unpleasant consequences for coming forward and charging their boss with sexual harassment.

Furthermore, Rayala decries the alleged violation of his right to due process. He accuses the
Committee on Decorum of railroading his trial for violation of RA 7877. He also scored the OPs
decision finding him guilty of disgraceful and immoral conduct under the Revised Administrative
Code and not for violation of RA 7877. Considering that he was not tried for disgraceful and immoral
conduct, he argues that the verdict is a sham and total nullity.

We hold that Rayala was properly accorded due process. In previous cases, this Court held
that:

[i]n administrative proceedings, due process has been recognized to include the
following: (1) the right to actual or constructive notice of the institution of proceedings
which may affect a respondents legal rights; (2) a real opportunity to be heard
personally or with the assistance of counsel, to present witnesses and evidence in ones
favor, and to defend ones rights; (3) a tribunal vested with competent jurisdiction and
so constituted as to afford a person charged administratively a reasonable guarantee of
honesty as well as impartiality; and (4) a finding by said tribunal which is supported by
substantial evidence submitted for consideration during the hearing or contained in the
records or made known to the parties affected.[48]

The records of the case indicate that Rayala was afforded all these procedural due process
safeguards. Although in the beginning he questioned the authority of the Committee to try
him,[49] he appeared, personally and with counsel, and participated in the proceedings.

On the other point raised, this Court has held that, even in criminal cases, the designation of
the offense is not controlling, thus:

What is controlling is not the title of the complaint, nor the designation of the
offense charged or the particular law or part thereof allegedly violated, these being
mere conclusions of law made by the prosecutor, but the description of the crime

Page 30 of 61
 charged and the particular facts therein recited. The acts or omissions complained of
must be alleged in such form as is sufficient to enable a person of common
understanding to know what offense is intended to be charged, and enable the court
to pronounce proper judgment. No information for a crime will be sufficient if it does
not accurately and clearly allege the elements of the crime charged. Every element of
the offense must be stated in the information. What facts and circumstances are
necessary to be included therein must be determined by reference to the definitions
and essentials of the specified crimes. The requirement of alleging the elements of a
crime in the information is to inform the accused of the nature of the accusation
against him so as to enable him to suitably prepare his defense.[50]

It is noteworthy that under AO 250, sexual harassment amounts to disgraceful and immoral
conduct.[51] Thus, any finding of liability for sexual harassment may also be the basis of culpability for
disgraceful and immoral conduct.

With the foregoing disquisitions affirming the finding that Rayala committed sexual
harassment, we now determine the proper penalty to be imposed.

Rayala attacks the penalty imposed by the OP. He alleges that under the pertinent Civil
Service Rules, disgraceful and immoral conduct is punishable by suspension for a period of six (6)
months and one (1) day to one (1) year. He also argues that since he is charged administratively,
aggravating or mitigating circumstances cannot be appreciated for purposes of imposing the penalty.

Under AO 250, the penalty for the first offense is suspension for six (6) months and one (1)
day to one (1) year, while the penalty for the second offense is dismissal.[52] On the other hand,
Section 22(o), Rule XVI of the Omnibus Rules Implementing Book V of the Administrative Code of
1987[53] and Section 52 A(15) of the Revised Uniform Rules on Administrative Cases in the Civil
Service[54] both provide that the first offense of disgraceful and immoral conduct is punishable by
suspension of six (6) months and one (1) day to one (1) year. A second offense is punishable by
dismissal.

Under the Labor Code, the Chairman of the NLRC shall hold office during good behavior until
he or she reaches the age of sixty-five, unless sooner removed for cause as provided by law or
becomes incapacitated to discharge the duties of the office.[55]
Page 31 of 61
 In this case, it is the President of the Philippines, as the proper disciplining authority, who
would determine whether there is a valid cause for the removal of Rayala as NLRC Chairman. This
power, however, is qualified by the phrase for cause as provided by law. Thus, when the President
found that Rayala was indeed guilty of disgraceful and immoral conduct, the Chief Executive did not
have unfettered discretion to impose a penalty other than the penalty provided by law for such
offense. As cited above, the imposable penalty for the first offense of either the administrative
offense of sexual harassment or for disgraceful and immoral conduct is suspension of six (6) months
and one (1) day to one (1) year. Accordingly, it was error for the Office of the President to impose
upon Rayala the penalty of dismissal from the service, a penalty which can only be imposed upon
commission of a second offense.

Even if the OP properly considered the fact that Rayala took advantage of his high
government position, it still could not validly dismiss him from the service. Under the Revised
Uniform Rules on Administrative Cases in the Civil Service,[56] taking undue advantage of a
subordinate may be considered as an aggravating circumstance[57] and where only aggravating and
no mitigating circumstances are present, the maximum penalty shall be imposed.[58] Hence, the
maximum penalty that can be imposed on Rayala is suspension for one (1) year.

Rayala holds the exalted position of NLRC Chairman, with the rank equivalent to a CA Justice.
Thus, it is not unavailing that rigid standards of conduct may be demanded of him. In Talens-Dabon v.
Judge Arceo,[59] this Court, in upholding the liability of therein respondent Judge, said:

The actuations of respondent are aggravated by the fact that complainant is

one of his subordinates over whom he exercises control and supervision, he being the
executive judge. He took advantage of his position and power in order to carry out his
lustful and lascivious desires. Instead of he being in loco parentisover his subordinate
employees, respondent was the one who preyed on them, taking advantage of his
superior position.

In yet another case, this Court declared:

Page 32 of 61
 As a managerial employee, petitioner is bound by more exacting work ethics.
He failed to live up to his higher standard of responsibility when he succumbed to his
moral perversity. And when such moral perversity is perpetrated against his
subordinate, he provides a justifiable ground for his dismissal for lack of trust and
confidence. It is the right, nay, the duty of every employer to protect its employees
from oversexed superiors.[60]

It is incumbent upon the head of office to set an example on how his employees should
conduct themselves in public office, so that they may work efficiently in a healthy working
atmosphere. Courtesy demands that he should set a good example.[61]

Rayala has thrown every argument in the book in a vain effort to effect his exoneration. He
even puts Domingos character in question and casts doubt on the morality of the former President
who ordered, albeit erroneously, his dismissal from the service. Unfortunately for him, these are not
significant factors in the disposition of the case. It is his character that is in question here and sadly,
the inquiry showed that he has been found wanting.

WHEREFORE, the foregoing premises considered, the October 18, 2002 Resolution of the
Court of Appeals in CA-G.R. SP No. 61026 is AFFIRMED.Consequently, the petitions in G.R. Nos.
155831, 155840, and 158700 are DENIED. No pronouncement as to costs.

SO ORDERED.

Page 33 of 61
Case No. 3

[G.R. No. 118978. May 23, 1997]

PHILIPPINE TELEGRAPH AND TELEPHONE COMPANY,* petitioner,

vs.NATIONAL LABOR RELATIONS COMMISSION and GRACE DE
GUZMAN, respondents.

DECISION
REGALADO, J.:

Seeking relief through the extraordinary writ of certiorari, petitioner

Philippine Telegraph and Telephone Company (hereafter, PT&T) invokes the
alleged concealment of civil status and defalcation of company funds as
grounds to terminate the services of an employee. That employee, herein
private respondent Grace de Guzman, contrarily argues that what really
motivated PT&T to terminate her services was her having contracted marriage
during her employment, which is prohibited by petitioner in its company
policies. She thus claims that she was discriminated against in gross violation
of law, such a proscription by an employer being outlawed by Article 136 of the
Labor Code.
Grace de Guzman was initially hired by petitioner as a reliever, specifically
as a Supernumerary Project Worker, for a fixed period from November 21, 1990
until April 20, 1991 vice one C.F. Tenorio who went on maternity leave.[1] Under
the Reliever Agreement which she signed with petitioner company, her
employment was to be immediately terminated upon expiration of the agreed
period. Thereafter, from June 10, 1991 to July 1, 1991, and from July 19, 1991
to August 8, 1991, private respondents services as reliever were again
engaged by petitioner, this time in replacement of one Erlinda F. Dizon who
went on leave during both periods.[2] After August 8, 1991, and pursuant to their
Reliever Agreement, her services were terminated.
On September 2, 1991, private respondent was once more asked to join
petitioner company as a probationary employee, the probationary period to
cover 150 days. In the job application form that was furnished her to be filled up
for the purpose, she indicated in the portion for civil status therein that she was
single although she had contracted marriage a few months earlier, that is, on
May 26, 1991.[3]
It now appears that private respondent had made the same representation
in the two successive reliever agreements which she signed on June 10, 1991
Page 34 of 61
and July 8, 1991. When petitioner supposedly learned about the same later, its
branch supervisor in Baguio City, Delia M. Oficial, sent to private respondent a
memorandum dated January 15, 1992 requiring her to explain the
discrepancy. In that memorandum, she was reminded about the companys
policy of not accepting married women for employment.[4]
In her reply letter dated January 17, 1992, private respondent stated that
she was not aware of PT&Ts policy regarding married women at the time, and
that all along she had not deliberately hidden her true civil status.[5] Petitioner
nonetheless remained unconvinced by her explanations. Private respondent
was dismissed from the company effective January 29, 1992,[6] which she
readily contested by initiating a complaint for illegal dismissal, coupled with a
claim for non-payment of cost of living allowances (COLA), before the Regional
Arbitration Branch of the National Labor Relations Commission in Baguio City.
At the preliminary conference conducted in connection therewith, private
respondent volunteered the information, and this was incorporated in the
stipulation of facts between the parties, that she had failed to remit the amount
of P2,380.75 of her collections. She then executed a promissory note for that
amount in favor of petitioner.[7]All of these took place in a formal proceeding and
with the agreement of the parties and/or their counsel.
On November 23, 1993, Labor Arbiter Irenarco R. Rimando handed down a
decision declaring that private respondent, who had already gained the status
of a regular employee, was illegally dismissed by petitioner. Her reinstatement,
plus payment of the corresponding back wages and COLA, was
correspondingly ordered, the labor arbiter being of the firmly expressed view
that the ground relied upon by petitioner in dismissing private respondent was
clearly insufficient, and that it was apparent that she had been discriminated
against on account of her having contracted marriage in violation of company
rules.
On appeal to the National Labor Relations Commission (NLRC), said public
respondent upheld the labor arbiter and, in its decision dated April 29, 1994, it
ruled that private respondent had indeed been the subject of an unjust and
unlawful discrimination by her employer, PT&T. However, the decision of the
labor arbiter was modified with the qualification that Grace de Guzman
deserved to be suspended for three months in view of the dishonest nature of
her acts which should not be condoned. In all other respects, the NLRC
affirmed the decision of the labor arbiter, including the order for the
reinstatement of private respondent in her employment with PT&T.
The subsequent motion for reconsideration filed by petitioner was rebuffed
by respondent NLRC in its resolution of November 9, 1994, hence this special
civil action assailing the aforestated decisions of the labor arbiter and
respondent NLRC, as well as the denial resolution of the latter.
Page 35 of 61
 1. Decreed in the Bible itself is the universal norm that women should be
regarded with love and respect but, through the ages, men have responded to
that injunction with indifference, on the hubristic conceit that women constitute
the inferior sex. Nowhere has that prejudice against womankind been so
pervasive as in the field of labor, especially on the matter of equal employment
opportunities and standards. In the Philippine setting, women have traditionally
been considered as falling within the vulnerable groups or types of workers who
must be safeguarded with preventive and remedial social legislation against
discriminatory and exploitative practices in hiring, training, benefits, promotion
and retention.
The Constitution, cognizant of the disparity in rights between men and
women in almost all phases of social and political life, provides a gamut of
protective provisions.To cite a few of the primordial ones, Section 14, Article
II[8] on the Declaration of Principles and State Policies, expressly recognizes the
role of women in nation-building and commands the State to ensure, at all
times, the fundamental equality before the law of women and men. Corollary
thereto, Section 3 of Article XIII[9] (the progenitor whereof dates back to both the
1935 and 1973 Constitution) pointedly requires the State to afford full protection
to labor and to promote full employment and equality of employment
opportunities for all, including an assurance of entitlement to tenurial security of
all workers. Similarly, Section 14 of Article XIII[10] mandates that the State shall
protect working women through provisions for opportunities that would enable
them to reach their full potential.
2. Corrective labor and social laws on gender inequality have emerged with
more frequency in the years since the Labor Code was enacted on May 1, 1974
as Presidential Decree No. 442, largely due to our countrys commitment as a
signatory to the United Nations Convention on the Elimination of All Forms of
Discrimination Against Women (CEDAW).[11]
Principal among these laws are Republic Act No. 6727[12] which explicitly
prohibits discrimination against women with respect to terms and conditions of
employment, promotion, and training opportunities; Republic Act No.
6955[13] which bans the mail-order-bride practice for a fee and the export of
female labor to countries that cannot guarantee protection to the rights of
women workers; Republic Act No. 7192,[14] also known as the Women in
Development and Nation Building Act, which affords women equal opportunities
with men to act and to enter into contracts, and for appointment, admission,
training, graduation, and commissioning in all military or similar schools of the
Armed Forces of the Philippines and the Philippine National Police; Republic
Act No. 7322[15] increasing the maternity benefits granted to women in the
private sector; Republic Act No. 7877[16] which outlaws and punishes sexual
harassment in the workplace and in the education and training environment;
and Republic Act No. 8042,[17]or the Migrant Workers and Overseas Filipinos
Page 36 of 61
Act of 1995, which prescribes as a matter of policy, inter alia, the deployment of
migrant workers, with emphasis on women, only in countries where their rights
are secure. Likewise, it would not be amiss to point out that in the Family
Code,[18] womens rights in the field of civil law have been greatly enhanced and
expanded.
In the Labor Code, provisions governing the rights of women workers are
found in Articles 130 to 138 thereof. Article 130 involves the right against
particular kinds of night work while Article 132 ensures the right of women to be
provided with facilities and standards which the Secretary of Labor may
establish to ensure their health and safety.For purposes of labor and social
legislation, a woman working in a nightclub, cocktail lounge, massage clinic, bar
or other similar establishments shall be considered as an employee under
Article 138. Article 135, on the other hand, recognizes a womans right against
discrimination with respect to terms and conditions of employment on account
simply of sex. Finally, and this brings us to the issue at hand, Article 136
explicitly prohibits discrimination merely by reason of the marriage of a female
employee.
3. Acknowledged as paramount in the due process scheme is the
constitutional guarantee of protection to labor and security of tenure. Thus, an
employer is required, as a condition sine qua non prior to severance of the
employment ties of an individual under his employ, to convincingly establish,
through substantial evidence, the existence of a valid and just cause in
dispensing with the services of such employee, ones labor being regarded as
constitutionally protected property.
On the other hand, it is recognized that regulation of manpower by the
company falls within the so-called management prerogatives, which
prescriptions encompass the matter of hiring, supervision of workers, work
assignments, working methods and assignments, as well as regulations on the
transfer of employees, lay-off of workers, and the discipline, dismissal, and
recall of employees.[19] As put in a case, an employer is free to regulate,
according to his discretion and best business judgment, all aspects of
employment, from hiring to firing, except in cases of unlawful discrimination or
those which may be provided by law.[20]
In the case at bar, petitioners policy of not accepting or considering as
disqualified from work any woman worker who contracts marriage runs afoul of
the test of, and the right against, discrimination, afforded all women workers by
our labor laws and by no less than the Constitution. Contrary to petitioners
assertion that it dismissed private respondent from employment on account of
her dishonesty, the record discloses clearly that her ties with the company were
dissolved principally because of the companys policy that married women are
not qualified for employment in PT&T, and not merely because of her supposed
acts of dishonesty.
Page 37 of 61
 That it was so can easily be seen from the memorandum sent to private
respondent by Delia M. Oficial, the branch supervisor of the company, with the
reminder, in the words of the latter, that youre fully aware that the company is
not accepting married women employee (sic), as it was verbally instructed to
you.[21] Again, in the termination notice sent to her by the same branch
supervisor, private respondent was made to understand that her severance
from the service was not only by reason of her concealment of her married
status but, over and on top of that, was her violation of the companys policy
against marriage (and even told you that married women employees are not
applicable [sic] or accepted in our company.)[22] Parenthetically, this seems to
be the curious reason why it was made to appear in the initiatory pleadings that
petitioner was represented in this case only by its said supervisor and not by its
highest ranking officers who would otherwise be solidarily liable with the
corporation.[23]
Verily, private respondents act of concealing the true nature of her status
from PT&T could not be properly characterized as willful or in bad faith as she
was moved to act the way she did mainly because she wanted to retain a
permanent job in a stable company. In other words, she was practically forced
by that very same illegal company policy into misrepresenting her civil status for
fear of being disqualified from work. While loss of confidence is a just cause for
termination of employment, it should not be simulated.[24] It must rest on an
actual breach of duty committed by the employee and not on the employers
caprices.[25] Furthermore, it should never be used as a subterfuge for causes
which are improper, illegal, or unjustified.[26]
In the present controversy, petitioners expostulations that it dismissed
private respondent, not because the latter got married but because she
concealed that fact, does have a hollow ring. Her concealment, so it is claimed,
bespeaks dishonesty hence the consequent loss of confidence in her which
justified her dismissal. Petitioner would asseverate, therefore, that while it has
nothing against marriage, it nonetheless takes umbrage over the concealment
of that fact. This improbable reasoning, with interstitial distinctions, perturbs the
Court since private respondent may well be minded to claim that the imputation
of dishonesty should be the other way around.
Petitioner would have the Court believe that although private respondent
defied its policy against its female employees contracting marriage, what could
be an act of insubordination was inconsequential. What it submits as
unforgivable is her concealment of that marriage yet, at the same time,
declaring that marriage as a trivial matter to which it supposedly has no
objection. In other words, PT&T says it gives its blessings to its female
employees contracting marriage, despite the maternity leaves and other
benefits it would consequently respond for and which obviously it would have
wanted to avoid. If that employee confesses such fact of marriage, there will be
Page 38 of 61
no sanction; but if such employee conceals the same instead of proceeding to
the confessional, she will be dismissed. This line of reasoning does not impress
us as reflecting its true management policy or that we are being regaled with
responsible advocacy.
This Court should be spared the ennui of strained reasoning and
the tedium of propositions which confuse through less than candid
arguments. Indeed, petitioner glosses over the fact that it was its unlawful policy
against married women, both on the aspects of qualification and retention,
which compelled private respondent to conceal her supervenient marriage. It
was, however, that very policy alone which was the cause of private
respondents secretive conduct now complained of. It is then apropos to recall
the familiar saying that he who is the cause of the cause is the cause of the evil
caused.
Finally, petitioners collateral insistence on the admission of private
respondent that she supposedly misappropriated company funds, as an
additional ground to dismiss her from employment, is somewhat insincere and
self-serving. Concededly, private respondent admitted in the course of the
proceedings that she failed to remit some of her collections, but that is an
altogether different story. The fact is that she was dismissed solely because of
her concealment of her marital status, and not on the basis of that supposed
defalcation of company funds. That the labor arbiter would thus consider
petitioners submissions on this supposed dishonesty as a mere afterthought,
just to bolster its case for dismissal, is a perceptive conclusion born of
experience in labor cases. For, there was no showing that private respondent
deliberately misappropriated the amount or whether her failure to remit the
same was through negligence and, if so, whether the negligence was in nature
simple or grave. In fact, it was merely agreed that private respondent execute a
promissory note to refund the same, which she did, and the matter was deemed
settled as a peripheral issue in the labor case.
Private respondent, it must be observed, had gained regular status at the
time of her dismissal. When she was served her walking papers on January 29,
1992, she was about to complete the probationary period of 150 days as she
was contracted as a probationary employee on September 2, 1991. That her
dismissal would be effected just when her probationary period was winding
down clearly raises the plausible conclusion that it was done in order to prevent
her from earning security of tenure.[27]On the other hand, her earlier stints with
the company as reliever were undoubtedly those of a regular employee, even if
the same were for fixed periods, as she performed activities which were
essential or necessary in the usual trade and business of PT&T.[28]The primary
standard of determining regular employment is the reasonable connection
between the activity performed by the employee in relation to the business or
trade of the employer.[29]
Page 39 of 61
 As an employee who had therefore gained regular status, and as she had
been dismissed without just cause, she is entitled to reinstatement without loss
of seniority rights and other privileges and to full back wages, inclusive of
allowances and other benefits or their monetary equivalent.[30] However, as she
had undeniably committed an act of dishonesty in concealing her status, albeit
under the compulsion of an unlawful imposition of petitioner, the three-month
suspension imposed by respondent NLRC must be upheld to obviate the
impression or inference that such act should be condoned. It would be unfair to
the employer if she were to return to its fold without any sanction whatsoever
for her act which was not totally justified. Thus, her entitlement to back wages,
which shall be computed from the time her compensation was withheld up to
the time of her actual reinstatement, shall be reduced by deducting therefrom
the amount corresponding to her three months suspension.
4. The government, to repeat, abhors any stipulation or policy in the nature
of that adopted by petitioner PT&T. The Labor Code states, in no uncertain
terms, as follows:

ART. 136. Stipulation against marriage. - It shall be unlawful for an employer to

require as a condition of employment or continuation of employment that a woman
shall not get married, or to stipulate expressly or tacitly that upon getting married, a
woman employee shall be deemed resigned or separated, or to actually dismiss,
discharge, discriminate or otherwise prejudice a woman employee merely by reason of
marriage.

This provision had a studied history for its origin can be traced to Section 8
of Presidential Decree No. 148,[31] better known as the Women and Child Labor
Law, which amended paragraph (c), Section 12 of Republic Act No.
679,[32] entitled An Act to Regulate the Employment of Women and Children, to
Provide Penalties for Violations Thereof, and for Other Purposes. The
forerunner to Republic Act No. 679, on the other hand, was Act No. 3071 which
became law on March 16, 1923 and which regulated the employment of women
and children in shops, factories, industrial, agricultural, and mercantile
establishments and other places of labor in the then Philippine Islands.
It would be worthwhile to reflect upon and adopt here the rationalization
in Zialcita, et al. vs. Philippine Air Lines,[33] a decision that emanated from the
Office of the President. There, a policy of Philippine Air Lines requiring that
prospective flight attendants must be single and that they will be automatically
separated from the service once they marry was declared void, it being violative
of the clear mandate in Article 136 of the Labor Code with regard to
discrimination against married women. Thus:

Of first impression is the incompatibility of the respondents policy or regulation with

the codal provision of law. Respondent is resolute in its contention that Article 136 of
Page 40 of 61
the Labor Code applies only to women employed in ordinary occupations and that the
prohibition against marriage of women engaged in extraordinary occupations, like flight
attendants, is fair and reasonable, considering the pecularities of their chosen
profession.

We cannot subscribe to the line of reasoning pursued by respondent. All along, it knew
that the controverted policy has already met its doom as early as March 13, 1973 when
Presidential Decree No. 148, otherwise known as the Women and Child Labor Law,
was promulgated. But for the timidity of those affected or their labor unions in
challenging the validity of the policy, the same was able to obtain a momentary
reprieve. A close look at Section 8 of said decree, which amended paragraph (c) of
Section 12 of Republic Act No. 679, reveals that it is exactly the same provision
reproduced verbatim in Article 136 of the Labor Code, which was promulgated on May
1, 1974 to take effect six (6) months later, or on November 1, 1974.

It cannot be gainsaid that, with the reiteration of the same provision in the new Labor
Code, all policies and acts against it are deemed illegal and therefore abrogated. True,
Article 132 enjoins the Secretary of Labor to establish standards that will ensure the
safety and health of women employees and in appropriate cases shall by regulation
require employers to determine appropriate minimum standards for termination in
special occupations, such as those of flight attendants, but that is precisely the factor
that militates against the policy of respondent. The standards have not yet been
established as set forth in the first paragraph, nor has the Secretary of Labor issued any
regulation affecting flight attendants.

It is logical to presume that, in the absence of said standards or regulations which are as
yet to be established, the policy of respondent against marriage is patently illegal. This
finds support in Section 9 of the New Constitution, which provides:

Sec. 9. The State shall afford protection to labor, promote full employment and equality
in employment, ensure equal work opportunities regardless of sex, race, or creed, and
regulate the relations between workers and employees. The State shall assure the rights
of workers to self-organization, collective bargaining, security of tenure, and just and
humane conditions of work x x x.

Moreover, we cannot agree to the respondents proposition that termination from

employment of flight attendants on account of marriage is a fair and reasonable
standard designed for their own health, safety, protection and welfare, as no basis has
been laid therefor. Actually, respondent claims that its concern is not so much against
the continued employment of the flight attendant merely by reason of marriage as
observed by the Secretary of Labor, but rather on the consequence of marriage-
pregnancy. Respondent discussed at length in the instant appeal the supposed ill effects
of pregnancy on flight attendants in the course of their employment. We feel that this

Page 41 of 61
needs no further discussion as it had been adequately explained by the Secretary of
Labor in his decision of May 2, 1976.

In a vain attempt to give meaning to its position, respondent went as far as invoking the
provisions of Articles 52 and 216 of the New Civil Code on the preservation of
marriage as an inviolable social institution and the family as a basic social institution,
respectively, as bases for its policy of non-marriage. In both instances, respondent
predicates absence of a flight attendant from her home for long periods of time as
contributory to an unhappy married life. This is pure conjecture not based on actual
conditions, considering that, in this modern world, sophisticated technology has
narrowed the distance from one place to another. Moreover, respondent overlooked the
fact that married flight attendants can program their lives to adapt to prevailing
circumstances and events.

Article 136 is not intended to apply only to women employed in ordinary occupations,
or it should have categorically expressed so. The sweeping intendment of the law, be it
on special or ordinary occupations, is reflected in the whole text and supported by
Article 135 that speaks of non-discrimination on the employment of women.

The judgment of the Court of Appeals in Gualberto, et al. vs. Marinduque

Mining & Industrial Corporation[34] considered as void a policy of the same
nature. In said case, respondent, in dismissing from the service the
complainant, invoked a policy of the firm to consider female employees in the
project it was undertaking as separated the moment they get married due to
lack of facilities for married women. Respondent further claimed that
complainant was employed in the project with an oral understanding that her
services would be terminated when she gets married. Branding the policy of the
employer as an example of discriminatory chauvinism tantamount to denying
equal employment opportunities to women simply on account of their sex, the
appellate court struck down said employer policy as unlawful in view of its
repugnance to the Civil Code, Presidential Decree No. 148 and the
Constitution.
Under American jurisprudence, job requirements which establish employer
preference or conditions relating to the marital status of an employee are
categorized as a sex-plus discrimination where it is imposed on one sex and
not on the other. Further, the same should be evenly applied and must not
inflict adverse effects on a racial or sexual group which is protected by federal
job discrimination laws. Employment rules that forbid or restrict the employment
of married women, but do not apply to married men, have been held to violate
Title VII of the United States Civil Rights Act of 1964, the main federal statute
prohibiting job discrimination against employees and applicants on the basis of,
among other things, sex.[35]

Page 42 of 61
 Further, it is not relevant that the rule is not directed against all women but
just against married women. And, where the employer discriminates against
married women, but not against married men, the variable is sex and the
discrimination is unlawful.[36] Upon the other hand, a requirement that a woman
employee must remain unmarried could be justified as a bona fide occupational
qualification, or BFOQ, where the particular requirements of the job would
justify the same, but not on the ground of a general principle, such as the
desirability of spreading work in the workplace. A requirement of that nature
would be valid provided it reflects an inherent quality reasonably necessary for
satisfactory job performance. Thus, in one case, a no-marriage rule applicable
to both male and female flight attendants, was regarded as unlawful since the
restriction was not related to the job performance of the flight attendants. [37]
5. Petitioners policy is not only in derogation of the provisions of Article 136
of the Labor Code on the right of a woman to be free from any kind of
stipulation against marriage in connection with her employment, but it likewise
assaults good morals and public policy, tending as it does to deprive a woman
of the freedom to choose her status, a privilege that by all accounts inheres in
the individual as an intangible and inalienable right.[38] Hence, while it is true
that the parties to a contract may establish any agreements, terms, and
conditions that they may deem convenient, the same should not be contrary to
law, morals, good customs, public order, or public policy.[39]Carried to its logical
consequences, it may even be said that petitioners policy against legitimate
marital bonds would encourage illicit or common-law relations and subvert the
sacrament of marriage.
Parenthetically, the Civil Code provisions on the contract of labor state that
the relations between the parties, that is, of capital and labor, are not merely
contractual, impressed as they are with so much public interest that the same
should yield to the common good.[40] It goes on to intone that neither capital nor
labor should visit acts of oppression against the other, nor impair the interest or
convenience of the public.[41] In the final reckoning, the danger of just such a
policy against marriage followed by petitioner PT&T is that it strikes at the very
essence, ideals and purpose of marriage as an inviolable social institution and,
ultimately, of the family as the foundation of the nation.[42] That it must be
effectively interdicted here in all its indirect, disguised or dissembled forms as
discriminatory conduct derogatory of the laws of the land is not only in order but
imperatively required.
ON THE FOREGOING PREMISES, the petition of Philippine Telegraph and
Telephone Company is hereby DISMISSED for lack of merit, with double costs
against petitioner.
SO ORDERED.

Page 43 of 61
Case No. 4

G.R. NO. 153477 March 6, 2007

DEL MONTE PHILIPPINES, INC., Petitioner,

vs.
LOLITA VELASCO, Respondent.

DECISION

AUSTRIA-MARTINEZ, J.:

Before this Court is a Petition for Certiorari under Rule 45 seeking to reverse and set aside
the Decision1 dated July 23, 2001 of the Court of Appeals (CA) in CA-G.R. SP No. 56571
which affirmed the Decision dated May 27, 1999 of the National Labor Relations Commission
(NLRC); and the CA Resolution2 dated May 7, 2002 which denied the petitioner's Motion for
Reconsideration.

The facts of the case, as stated by the CA, are as follows:

Lolita M. Velasco (respondent) started working with Del Monte Philippines (petitioner) on
October 21, 1976 as a seasonal employee and was regularized on May 1, 1977. Her latest
assignment was as Field Laborer.

On June 16, 1987, respondent was warned in writing due to her absences. On May 4, 1991,
respondent, thru a letter, was again warned in writing by petitioner about her absences
without permission and a forfeiture of her vacation leave entitlement for the year 1990-1991
was imposed against her.

On September 14, 1992, another warning letter was sent to respondent regarding her
absences without permission during the year 1991-1992. Her vacation entitlement for the
said employment year affected was consequently forfeited.

In view of the said alleged absences without permission, on September 17, 1994, a notice of
hearing was sent to respondent notifying her of the charges filed against her for violating the
Absence Without Official Leave rule: that is for excessive absence without permission on
August 15-18, 29-31 and September 1-10, 1994. The hearing was set on September 23,
1994.

Respondent having failed to appear on September 23, 1994 hearing, another notice of
hearing was sent to her resetting the investigation on September 30, 1994. It was again reset
to October 5, 1994.

On January 10, 1995, after hearing, the petitioner terminated the services of respondent
effective January 16, 1994 due to excessive absences without permission.

Feeling aggrieved, respondent filed a case for illegal dismissal against petitioner asserting
that her dismissal was illegal because she was on the family way suffering from urinary tract
infection, a pregnancy-borne, at the time she committed the alleged absences. She
explained that for her absence from work on August 15, 16, 17 & 18, 1994 she had sent an

Page 44 of 61
application for leave to her supervisor, Prima Ybañez. Thereafter, she went to the company
hospital for check-up and was advised accordingly to rest in quarters for four (4) days or on
August 27 to 30, 1994. Still not feeling well, she failed to work on September 1, 1994 and
was again advised two days of rest in quarters on September 2-3, 1994. Unable to recover,
she went to see an outside doctor, Dr. Marilyn Casino, and the latter ordered her to rest for
another five (5) consecutive days, or from September 5 to 9, 1994. She declared she did not
file the adequate leave of absence because a medical certificate was already sufficient per
company policy. On September 10, 1994 she failed to report to work but sent an application
for leave of absence to her supervisor, Prima Ybañez, which was not anymore accepted. 3

On April 13, 1998, the Labor Arbiter dismissed the Complaint for lack of merit. The Labor
Arbiter held that the respondent was an incorrigible absentee; that she failed to file leaves of
absence; that her absences in 1986 and 1987 were without permission; that the petitioner
gave the respondent several chances to reform herself; and that the respondent did not
justify her failure to appear during the scheduled hearings and failed to explain her absences.

Respondent appealed to the NLRC. On May 29, 1999, the NLRC issued its Resolution, the
dispositive portion of which reads:

WHEREFORE, foregoing considered, the instant decision is hereby VACATED and a new
one entered declaring the dismissal of complainant as ILLEGAL. In consonance with Art. 279
of the Labor [Code], her reinstatement with full backwages from the date of her termination
from employment to her actual reinstatement is necessarily decreed.4

The NLRC held that, under the company rules, the employee may make a subsequent
justification of her absenteeism, which she was able to do in the instant case; that while it is
not disputed that the respondent incurred absences exceeding six (6) days within one
employment year – a ground for dismissal under the company rules – the petitioner actually
admitted the fact that the respondent had been pregnant, hence, negating petitioner’s
assertion that the respondent failed to give any explanation of her absences; that the records
bear the admission of petitioner’s officer of the receipt of the hospital record showing the
cause of her absences ("RIQ advice" or "rest-in-quarters") for August 19-20, 1994 which, in
turn, could already serve as reference in resolving the absences on August 15 to 18; that the
petitioner further admitted that the respondent was under "RIQ advice" on September 2-3,
1994 and yet insisted in including these dates among respondent’s 16 purported unexplained
absences; that it is sufficient notice for the petitioner, "a plain laborer" with "unsophisticated
judgment," to send word to her employer through a co-worker on August 15 to 16, 1994 that
she was frequently vomiting; that the sheer distance between respondent’s home and her
workplace made it difficult to send formal notice; that respondent even sent her child of
tender age to inform her supervisor about her absence on September 5, 1994 due to
stomach ache, but her child failed to approach the officer because her child felt ashamed, if
not mortified; that respondent’s narration that she had to bear pains during her absences on
September 21 to 27, 1994 is credible; that she dared not venture through the roads for fear
of forest creatures or predators; that the petitioner is guilty of unlawfully discharging
respondent on account of her pregnancy under Article 137(2) of the Labor Code; and, that
petitioner’s reference to the previous absenteeism of respondent is misplaced because the
latter had already been penalized therefor.

Petitioner’s Motion for Reconsideration was denied on September 30, 1999.

Page 45 of 61
The petitioner then appealed to the CA. On July 23, 2001, the CA promulgated its Decision
the dispositive portion of which states:

VIEWED IN THE LIGHT OF ALL THE FOREGOING, the instant petition is DISMISSED, the
Resolutions, dated May 27, 1999 and September 30, 1999 of the National Labor Relations
Commission in NLRC CA No. M-003926-98, are hereby AFFIRMED in toto.

SO ORDERED.5

In affirming the NLRC, the CA held that absences due to a justified cause cannot be a
ground for dismissal; that it is undisputed that the respondent was pregnant at the time she
incurred the absences in question; that the certification issued by a private doctor duly
established this fact; that it was no less than petitioner’s company doctor who advised the
respondent to have rest-in-quarters for four days on account of a pregnancy- related
sickness; that it had been duly established that respondent filed leaves of absence though
the last had been refused by the company supervisor; that the dismissal of an employee due
to prolonged absence with leave by reason of illness duly established by the presentation of
a medical certificate is not justified; that it is undisputed that respondent’s sickness was
pregnancy-related; that under Article 137(2) of the Labor Code, the petitioner committed a
prohibited act in discharging a woman on account of her pregnancy.

On May 7, 2002, the CA denied petitioner’s Motion for Reconsideration.

Hence, the instant Petition raising the following issues:

I.

The court of appeals seriously erred In considering respondent’s Excessive aWOPs as

justified Simply on account of her pregnancy.

II.

THE COURT OF APPEALS SERIOUSLY ERRED IN NOT CONSIDERING THAT

RESPONDENT’S LATEST STRING OF ABSENCES INCURRED WITHOUT ANY PRIOR
PERMISSION, AND AS ABOVE SHOWN, WITHOUT ANY VALID JUSTIFICATION, TAKEN
TOGETHER WITH HER DAMAGING awop history, established her gross and habitual
neGlect of duties, a just and valid ground for dismissal.

III.

The court of appeals seriously erred in holding that respondent’s dismissal was in violation of
article 137 (prohibiting an employer to discharge an employee on account of her pregnancy).

IV.

The court of appeals seriously erred in awarding full backwages in favor of respondent
notwithstanding petitioner’s evident good faith.6

The essential question is whether the employment of respondent had been validly terminated
on the ground of excessive absences without permission. Corollary to this is the question of
whether the petitioner discharged the respondent on account of pregnancy, a prohibited act.
Page 46 of 61
The petitioner posits the following arguments: (a) The evidence proffered by the respondent,
to wit: (1) the Discharge Summary indicating that she had been admitted to the Phillips
Memorial Hospital on August 23, 1994 and discharged on August 26, 1994, and that she had
been advised to "rest in quarters" for four days from August 27, 1994 to August 30, 1994,
and (2) the Medical Certificate issued by Dr. Marilyn M. Casino stating that respondent had
sought consultation on September 4, 2002 because of spasm in the left iliac region, and was
advised to rest for five days (from September 4, 1994 up to September 8, 1994), due to
urinary tract infection, all in all establish respondent’s sickness only from August 23, 1994 up
to August 30, 1994 and from September 4, 1994 up to September 8, 1994. In other words,
respondent was absent without permission on several other days which were not supported
by any other proof of illness, specifically, on August 15, 16, 17, 18, 31, 1994 and September
1, 2, 3, 9, and 10, 1994, and, hence, she is guilty of ten unjustified absences; (b) Per Filflex
Industrial and Manufacturing Co. v. National Labor Relations Commission (Filflex), 7 if the
medical certificate fails to refer to the specific period of the employee’s absence, then such
absences, attributable to chronic asthmatic bronchitis, are not supported by competent proof
and, hence, they are unjustified. By parity of reasoning, in the absence of evidence indicating
any pregnancy-borne illness outside the period stated in respondent’s medical certificate,
such illness ought not to be considered as an acceptable excuse for respondent’s excessive
absences without leave; (c) Respondent’s latest string of absences, taken together with her
long history of absenteeism without permission, established her gross and habitual neglect of
duties, as established by jurisprudence; (d) The respondent was dismissed not by reason of
her pregnancy but on account of her gross and habitual neglect of duties. In other words, her
pregnancy had no bearing on the decision to terminate her employment; and, (e) Her state of
pregnancy per se could not excuse her from filing prior notice for her absence.

Petitioner’s arguments are without merit.

First. The Filflex Industrial and Manufacturing Co. case is not applicable, principally because
the nature and gravity of the illness involved in that case – chronic asthmatic bronchitis – are
different from the conditions that are present in the instant case, which is pregnancy and its
related illnesses.

The Court takes judicial notice of the fact that the condition of asthmatic bronchitis may be
intermittent, in contrast to pregnancy which is a continuing condition accompanied by various
symptoms and related illnesses. Hence, as to the former, if the medical certificate or other
proof proffered by the worker fails to correspond with the dates of absence, then it can be
reasonably concluded that, absent any other proof, such absences are unjustified. This is the
ruling in Filflex which cannot be applied in a straight-hand fashion in cases of pregnancy
which is a long-term condition accompanied by an assortment of related illnesses.

In this case, by the measure of substantial evidence, what is controlling is the finding of the
NLRC and the CA that respondent was pregnant and suffered from related ailments. It would
be unreasonable to isolate such condition strictly to the dates stated in the Medical
Certificate or the Discharge Summary. It can be safely assumed that the absences that are
not covered by, but which nonetheless approximate, the dates stated in the Discharge
Summary and Medical Certificate, are due to the continuing condition of pregnancy and
related illnesses, and, hence, are justified absences.

As the CA and the NLRC correctly noted, it is not disputed that respondent was pregnant and
that she was suffering from urinary tract infection, and that her absences were due to such
facts. The petitioner admits these facts in its Petition for Review. 8 And, as the CA aptly held,
Page 47 of 61
it was no less than the company doctor who advised the respondent to have "rest-in-
quarters" for four days on account of a pregnancy-related sickness.9

On this note, this Court upholds and adopts the finding of the NLRC, thus:

In this jurisdiction tardiness and absenteeism, like abandonment, are recognized forms of
neglect of duties, the existence of which justify the dismissal of the erring employee.
Respondent’s rule penalizing with discharge any employee who has incurred six (6) or more
absences without permission or subsequent justification is admittedly within the purview of
the foregoing standard.

However, while it is not disputed that complainant incurred absences exceeding six (6) days
as she actually failed to report for work from August 15-18, 23-26, 29-31, September 1-3, 5-
10, 12-17, 21-24, 26-30, and October 1-3, 1994, her being pregnant at the time these
absences were incurred is not questioned and is even admitted by respondent. It thus
puzzles us why respondent asserts complainant failed to explain satisfactorily her absences
on August 15-18, 29-31, September 1-3 and 5-10, 1994, yet reconsidered the rest of her
absences for being covered with "rest-in-quarters" (RIQ) advice from its hospital personnel
when this advice was unquestionably issued in consideration of the physiological and
emotional changes complainant, a conceiving mother, naturally developed. Medical and
health reports abundantly disclose that during the first trimester of pregnancy,
expectant mothers are plagued with morning sickness, frequent urination, vomiting
and fatigue all of which complainant was similarly plagued with. Union official IBB
Lesna’s observation on complainant being [sic] apparently not feeling well during the
investigation conducted by respondent on October 5, 1994 even remains in the
records of said proceedings. For respondent to isolate the absences of complainant in
August and mid-September, 1994 from the absences she incurred later in said month
without submitting any evidence that these were due to causes not in manner
associated with her [ ] condition renders its justification of complainant’s dismissal
clearly not convincing under the circumstances.

Despite contrary declaration, the records bear the admission of respondent’s P/A
North Supervisor, PB Ybanez, of her receipt of the hospital record showing
complainant’s RIQ advice for August 19-20, 1994 which could already serve as
respondent’s reference in resolving the latter’s absences on August 15 to 18, 1994.
Respondent further admitted complainant was under RIQ advice on September 2-3,
1994, yet, insisted in including these dates among her 16 purported unexplained
absences justifying termination of her employment.10 (emphasis supplied)

Petitioner’s contention that the cause for the dismissal was gross and habitual neglect
unrelated to her state of pregnancy is unpersuasive.

The Court agrees with the CA in concluding that respondent’s sickness was pregnancy-
related and, therefore, the petitioner cannot terminate respondent’s services because in
doing so, petitioner will, in effect, be violating the Labor Code which prohibits an employer to
discharge an employee on account of the latter’s pregnancy.11

Article 137 of the Labor Code provides:

Art. 137. Prohibited acts. – It shall be unlawful for any employer:

Page 48 of 61
 (1) To deny any woman employee the benefits provided for in this Chapter or to
discharge any woman employed by him for the purpose of preventing her from
enjoying any of the benefits provided under this Code;

(2) To discharge such woman on account of her pregnancy, while on leave or in

confinement due to her pregnancy; or

(3) To discharge or refuse the admission of such woman upon returning to her work
for fear that she may again be pregnant. (Emphasis supplied)

Second. The petitioner stresses that many women go through pregnancy and yet manage to
submit prior notices to their employer, especially if "there is no evidence on record indicating
a condition of such gravity as to preclude efforts at notifying petitioner of her absence from
work in series."12 But it must be emphasized that under petitioner’s company rules, absences
may be subsequently justified.13 The Court finds no cogent reason to disturb the findings of
the NLRC and the CA that the respondent was able to subsequently justify her absences in
accordance with company rules and policy; that the respondent was pregnant at the time she
incurred the absences; that this fact of pregnancy and its related illnesses had been duly
proven through substantial evidence; that the respondent attempted to file leaves of absence
but the petitioner’s supervisor refused to receive them; that she could not have filed prior
leaves due to her continuing condition; and that the petitioner, in the last analysis, dismissed
the respondent on account of her pregnancy, a prohibited act.

Third. Petitioner’s reliance on the jurisprudential rule that the totality of the infractions of an
employee may be taken into account to justify the dismissal, is tenuous considering the
particular circumstances obtaining in the present case. Petitioner puts much emphasis on
respondent’s "long history" of unauthorized absences committed several years beforehand.
However, petitioner cannot use these previous infractions to lay down a pattern of
absenteeism or habitual disregard of company rules to justify the dismissal of respondent.
The undeniable fact is that during her complained absences in 1994, respondent was
pregnant and suffered related illnesses. Again, it must be stressed that respondent’s
discharge by reason of absences caused by her pregnancy is covered by the prohibition
under the Labor Code. Since her last string of absences is justifiable and had been
subsequently explained, the petitioner had no legal basis in considering these absences
together with her prior infractions as gross and habitual neglect.

The Court is convinced that the petitioner terminated the services of respondent on account
of her pregnancy which justified her absences and, thus, committed a prohibited act
rendering the dismissal illegal.

In fine, the Court finds no cogent reason to disturb the findings of the CA and the NLRC.

WHEREFORE, the petition is DENIED for lack of merit. The Decision dated July 23, 2001
and the Resolution dated May 7, 2002 of the Court of Appeals are AFFIRMED.

No pronouncement as to costs.

SO ORDERED.

Page 49 of 61
Case No. 5

G.R. No. 94951 April 22, 1991

APEX MINING COMPANY, INC., petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION and SINCLITICA CANDIDO, respondents.

Bernabe B. Alabastro for petitioner.

Angel Fernandez for private respondent.

GANCAYCO, J.:

Is the househelper in the staff houses of an industrial company a domestic helper or a

regular employee of the said firm? This is the novel issue raised in this petition.

Private respondent Sinclita Candida was employed by petitioner Apex Mining Company, Inc.
on May 18, 1973 to perform laundry services at its staff house located at Masara, Maco,
Davao del Norte. In the beginning, she was paid on a piece rate basis. However, on January
17, 1982, she was paid on a monthly basis at P250.00 a month which was ultimately
increased to P575.00 a month.

On December 18, 1987, while she was attending to her assigned task and she was hanging
her laundry, she accidentally slipped and hit her back on a stone. She reported the accident
to her immediate supervisor Mila de la Rosa and to the personnel officer, Florendo D. Asirit.
As a result of the accident she was not able to continue with her work. She was permitted to
go on leave for medication. De la Rosa offered her the amount of P 2,000.00 which was
eventually increased to P5,000.00 to persuade her to quit her job, but she refused the offer
and preferred to return to work. Petitioner did not allow her to return to work and dismissed
her on February 4, 1988.

On March 11, 1988, private respondent filed a request for assistance with the Department of
Labor and Employment. After the parties submitted their position papers as required by the
labor arbiter assigned to the case on August 24, 1988 the latter rendered a decision, the
dispositive part of which reads as follows:

WHEREFORE, Conformably With The Foregoing, judgment is hereby rendered

ordering the respondent, Apex Mining Company, Inc., Masara, Davao del Norte, to
pay the complainant, to wit:

1 Salary

Differential –– P16,289.20

2. Emergency Living

Allowance –– 12,430.00

Page 50 of 61
 3. 13th Month Pay

Differential –– 1,322.32

4. Separation Pay

(One-month for

every year of

service [1973-19881) –– 25,119.30

or in the total of FIFTY FIVE THOUSAND ONE HUNDRED SIXTY ONE PESOS AND
42/100 (P55,161.42).

SO ORDERED.1

Not satisfied therewith, petitioner appealed to the public respondent National Labor Relations
Commission (NLRC), wherein in due course a decision was rendered by the Fifth Division
thereof on July 20, 1989 dismissing the appeal for lack of merit and affirming the appealed
decision. A motion for reconsideration thereof was denied in a resolution of the NLRC dated
June 29, 1990.

Hence, the herein petition for review by certiorari, which appopriately should be a special civil
action for certiorari, and which in the interest of justice, is hereby treated as such. 2 The main
thrust of the petition is that private respondent should be treated as a mere househelper or
domestic servant and not as a regular employee of petitioner.

The petition is devoid of merit.

Under Rule XIII, Section l(b), Book 3 of the Labor Code, as amended, the terms
"househelper" or "domestic servant" are defined as follows:

The term "househelper" as used herein is synonymous to the term "domestic servant"
and shall refer to any person, whether male or female, who renders services in and
about the employer's home and which services are usually necessary or desirable for
the maintenance and enjoyment thereof, and ministers exclusively to the personal
comfort and enjoyment of the employer's family.3

The foregoing definition clearly contemplates such househelper or domestic servant who is
employed in the employer's home to minister exclusively to the personal comfort and
enjoyment of the employer's family. Such definition covers family drivers, domestic servants,
laundry women, yayas, gardeners, houseboys and other similar househelps.

The definition cannot be interpreted to include househelp or laundrywomen working in

staffhouses of a company, like petitioner who attends to the needs of the company's guest
and other persons availing of said facilities. By the same token, it cannot be considered to
extend to then driver, houseboy, or gardener exclusively working in the company, the
staffhouses and its premises. They may not be considered as within the meaning of a
"househelper" or "domestic servant" as above-defined by law.

Page 51 of 61
The criteria is the personal comfort and enjoyment of the family of the employer in the home
of said employer. While it may be true that the nature of the work of a househelper, domestic
servant or laundrywoman in a home or in a company staffhouse may be similar in nature, the
difference in their circumstances is that in the former instance they are actually serving the
family while in the latter case, whether it is a corporation or a single proprietorship engaged
in business or industry or any other agricultural or similar pursuit, service is being rendered in
the staffhouses or within the premises of the business of the employer. In such instance, they
are employees of the company or employer in the business concerned entitled to the
privileges of a regular employee.

Petitioner contends that it is only when the househelper or domestic servant is assigned to
certain aspects of the business of the employer that such househelper or domestic servant
may be considered as such as employee. The Court finds no merit in making any such
distinction. The mere fact that the househelper or domestic servant is working within the
premises of the business of the employer and in relation to or in connection with its business,
as in its staffhouses for its guest or even for its officers and employees, warrants the
conclusion that such househelper or domestic servant is and should be considered as a
regular employee of the employer and not as a mere family househelper or domestic servant
as contemplated in Rule XIII, Section l(b), Book 3 of the Labor Code, as amended.

Petitioner denies having illegally dismissed private respondent and maintains that
respondent abandoned her work.1âwphi1This argument notwithstanding, there is enough
evidence to show that because of an accident which took place while private respondent was
performing her laundry services, she was not able to work and was ultimately separated from
the service. She is, therefore, entitled to appropriate relief as a regular employee of
petitioner. Inasmuch as private respondent appears not to be interested in returning to her
work for valid reasons, the payment of separation pay to her is in order.

WHEREFORE, the petition is DISMISSED and the appealed decision and resolution of
public respondent NLRC are hereby AFFIRMED. No pronouncement as to costs.

SO ORDERED.

Page 52 of 61
Case No. 6

G.R. No. 87210 July 16, 1990

FILOMENA BARCENAS, petitioner,

vs.
THE NATIONAL LABOR RELATIONS COMMISSION (NLRC), Rev. SIM DEE the present
Head Monk of the Manila Buddha Temple, MANUEL CHUA, in his capacity as the
President and Chairman of the Board of Directors of the Poh Toh Buddhist
Association of the Philippines, Inc., and in his private capacity, respondents.

L.B. Camins for petitioner.

Lino M. Patajo and Jose J. Torrefranca for private respondents.

MEDIALDEA, J.:

This petition for review on certiorari (which We treat as a special civil action for certiorari)
seeks to annul the decision of the National Labor Relations Commission dated November 29,
1988, which reversed the decision of the Labor Arbiter dated February 10, 1988 in NLRC
NCR Case No. 12-4861-86 (Filomena Barcenas v. Rev. Sim See, etc., et al.) on the ground
that no employer-employee relationship exists between the parties.

Petitioner alleged in her position paper the following facts:

In 1978, Chua Se Su (Su for short) in his capacity as the Head Monk of the Buddhist Temple
of Manila and Baguio City and as President and Chairman of the Board of Directors of the
Poh Toh Buddhist Association of the Phils. Inc. hired the petitioner who speaks the Chinese
language as secretary and interpreter. Petitioner's position required her to receive and assist
Chinese visitors to the temple, act as tourist guide for foreign Chinese visitors, attend to the
callers of the Head Monk as well as to the food for the temple visitors, run errands for the
Head Monk such as paying the Meralco, PLDT, MWSS bills and act as liaison in some
government offices. Aside from her pay and allowances under the law, she received an
amount of P500.00 per month plus free board and lodging in the temple. In December, 1979,
Su assumed the responsibility of paying for the education of petitioner's nephew. In 1981, Su
and petitioner had amorous relations. In May, 1982, of five months before giving birth to the
alleged son of Su on October 12, 1982, petitioner was sent home to Bicol. Upon the death of
Su in July, 1983, complainant remained and continued in her job. In 1985, respondent
Manuel Chua (Chua, for short) was elected President and Chairman of the Board of the Poh
Toh Buddhist Association of the Philippines, Inc. and Rev. Sim Dee for short) was elected
Head Buddhist Priest. Thereafter, Chua and Dee discontinued payment of her monthly
allowance and the additional P500.00 effective 1983. In addition, petitioner and her son were
evicted forcibly from their quarters in the temple by six police officers. She was brought first
to the Police precinct in Tondo and then brought to Aloha Hotel where she was compelled to
sign a written undertaking not to return to the Buddhist temple in consideration of the sum of
P10,000.00. Petitioner refused and Chua shouted threats against her and her son. Her
personal belongings including assorted jewelries were never returned by respondent Chua.

Page 53 of 61
Chua and DEE on the other hand, claimed that petitioner was never an employee of the Poh
Toh Temple but a servant who confined herself to the temple and to the personal needs of
the late Chua Se Su and thus, her position is coterminous with that of her master.

On February 10, 1988, the Labor Arbiter rendered a decision, the dispositive portion of which
states:

WHEREFORE, premises considered, judgment is hereby rendered in favor of

the complainant Filomena Barcenas, and the respondent corporation is hereby
ordered to pay her the following:

1. P26,575.00 backwages from August 9, 1986 up to date hereof.,

2. P14,650.00 as separation pay;

3. P18,000.00 as unpaid wages from August, 1983 up to August 8, 1986; and

4. P10,000.00 moral damages.

Complainant's charge of unfair labor practice is hereby dismissed for lack of

merit.

SO ORDERED. 1

Respondents appealed to the National Labor Relations Commission which, as earlier stated,
reversed the above decision of the Labor Arbiter. Hence, this instant petition.

A painstaking review of the records compels Us to dismiss the petition.

At the outset, however, We agree with the petitioner's claim that she was a regular employee
of the Manila Buddhist Temple as secretary and interpreter of its Head Monk, Su As Head
Monk, President and Chairman of the Board of Directors of the Poh Toh Buddhist
Association of the Philippines, Su was empowered to hire the petitioner under Article V of the
By-laws of the Association which states:

. . . (T)he President or in his absence, the Vice President shall represent the
Association in all its dealings with the public, subject to the Board, shall have
the power to enter into any contract or agreement in the name of the
Association, shall manage the active business operation of the Association,
shall deal with the bank or banks . . . 2

Respondent NLRC represented by its Legal Offices 3 argues that since petitioner was hired
without the approval of the Board of Directors of the Poh Toh Buddhist Association of the
Philippines, Inc., she was not an employee of respondents. This argument is specious. The
required Board approval would appear to relate to the acts of the President in representing
the association "in all its dealings with the public." And, even granting that prior Board
approval is required to confirm the hiring of the petitioner, the same was already granted,
albeit, tacitly. It must be noted that petitioner was hired in 1978 and no whimper of protest
was raised until this present controversy.

Page 54 of 61
Moreover, the work that petitioner performed in the temple could not be categorized as mere
domestic work. Thus, We find that petitioner, being proficient in the Chinese language,
attended to the visitors, mostly Chinese, who came to pray or seek advice before Buddha for
personal or business problems; arranged meetings between these visitors and Su and
supervised the preparation of the food for the temple visitors; acted as tourist guide of foreign
visitors; acted as liaison with some goverment offices; and made the payment for the
temple's Meralco, MWSS and PLDT bills. Indeed, these tasks may not be deemed activities
of a household helper. They were essential and important to the operation and religious
functions of the temple.

In spite of this finding, her status as a regular employee ended upon her return to Bicol in
May, 1982 to await the birth of her love-child allegedly by Su The records do not show that
petitioner filed any leave from work or that a leave was granted her. Neither did she return to
work after the birth of her child on October 12, 1982, whom she named Robert
Chua alias Chua Sim Tiong. The NLRC found that it was only in July, 1983 after Su died that
she went back to the Manila Buddhist Temple. Petitioner's pleadings failed to rebut this
finding. Clearly, her return could not be deemed as a resumption of her old position which
she had already abandoned. Petitioner herself supplied the reason for her return. She stated:

. . . (I)t was the death-bed instruction to her by Chua Se Su to stay at the

temple and to take care of the two boys and to see to it that they finish their
studies to become monks and when they are monks to eventually take over the
two temples as their inheritance from their father Chua Se Su. 4

Thus, her return to the temple was no longer as an employee but rather as Su's mistress who
is bent on protecting the proprietary and hereditary rights of her son and nephew. In her
pleadings, the petitioner claims that they were forcefully evicted from the temple, harassed
and threatened by respondents and that the Poh Toh Buddhist Association is a trustee
corporation with the children as cestui que trust. These claims are not proper in this labor
case. They should be appropriately threshed out in the complaints already filed by the
petitioner before the civil courts. Due to these claims, We view the respondents' offer of
P10,000.00 as indicative more of their desire to evict the petitioner and her son from the
temple rather than an admission of an employer-employee relations.

Anent the petitioner's claim for unpaid wages since May, 1982 which she filed only in 1986,
We hold that the same has already prescribed. Under Article 292 of the Labor Code, all
money claims arising from employer-employee relations must be filed within three years from
the time the cause of action accrued, otherwise they shall forever be barred.

Finally, while petitioner contends that she continued to work in the temple after Su died, there
is, however, no proof that she was re-hired by the new Head Monk. In fact, she herself
manifested that respondents made it clear to her in no uncertain terms that her services as
well as her presence and that of her son were no longer needed. 5 However, she persisted
and continued to work in the temple without receiving her salary because she expected Chua
and Dee to relent and permit the studies of the two boys. 6 Consequently, under these
circumstances, no employer-employee relationship could have arisen.

ACCORDINGLY, the decision of the National Labor Relations Commission dated November
29, 1988 is hereby AFFIRMED for the reasons aforestated. No costs.

SO ORDERED.
Page 55 of 61
Case No. 7

[G.R. No. 124617. April 28, 2000]

PHILIPPINE AEOLUS AUTOMOTIVE UNITED CORPORATION and/or FRANCIS

CHUA, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and ROSALINDA
C. CORTEZ, respondents.

DECISION

BELLOSILLO, J.:

This petition seeks to set aside the Decision of 15 February 1996 and the Resolution of 28
March 1996 of public respondent National Labor Relations Commission in NLRC NCR CA
No. 009753-95 (NLRC NCR Case No. 00-12-08759-94) which modified the decision of the
Labor Arbiter finding petitioners not guilty of illegal dismissal.

Petitioner Philippine Aeolus Automotive United Corporation (PAAUC) is a corporation duly

organized and existing under Philippine laws, petitioner Francis Chua is its President while
private respondent Rosalinda C. Cortez was a company nurse [1] of petitioner corporation until
her termination on 7 November 1994. Jlexj

On 5 October 1994 a memorandum was issued by Ms. Myrna Palomares, Personnel

Manager of petitioner corporation, addressed to private respondent Rosalinda C. Cortez
requiring her to explain within forty-eight (48) hours why no disciplinary action should be
taken against her (a) for throwing a stapler at Plant Manager William Chua, her superior, and
uttering invectives against him on 2 August 1994; (b) for losing the amount of P1,488.00
entrusted to her by Plant Manager Chua to be given to Mr. Fang of the CLMC Department on
23 August 1994; and, (c) for asking a co-employee to punch-in her time card thus making it
appear that she was in the office in the morning of 6 September 1994 when in fact she was
not. The memorandum however was refused by private respondent although it was read to
her and discussed with her by a co-employee. She did not also submit the required
explanation, so that while her case was pending investigation the company placed her under
preventive suspension for thirty (30) days effective 9 October 1994 to 7 November
1994. Lexjuris

On 20 October 1994, while Cortez was still under preventive suspension, another
memorandum was issued by petitioner corporation giving her seventy-two (72) hours to
explain why no disciplinary action should be taken against her for allegedly failing to process
the ATM applications of her nine (9) co-employees with the Allied Banking Corporation. On
21 October 1994 private respondent also refused to receive the second memorandum
although it was read to her by a co-employee. A copy of the memorandum was also sent by
the Personnel Manager to private respondent at her last known address by registered
mail. Jurismis

Meanwhile, private respondent submitted a written explanation with respect to the loss of
the P1,488.00 and the punching-in of her time card by a co-employee.

Page 56 of 61
On 3 November 1994 a third memorandum was issued to private respondent, this time
informing her of her termination from the service effective 7 November 1994 on grounds of
gross and habitual neglect of duties, serious misconduct and fraud or willful breach of trust. [2]

On 6 December 1994 private respondent filed with the Labor Arbiter a complaint for illegal
dismissal, non-payment of annual service incentive leave pay, 13th month pay and damages
against PAAUC and its president Francis Chua.[3]

On 10 July 1995 the Labor Arbiter rendered a decision holding the termination of Cortez as
valid and legal, at the same time dismissing her claim for damages for lack of merit.[4]

On appeal to the NLRC, public respondent reversed on 15 February 1996 the decision of the
Labor Arbiter and found petitioner corporation guilty of illegal dismissal of private respondent
Cortez. The NLRC ordered petitioner PAAUC to reinstate respondent Cortez to her former
position with back wages computed from the time of dismissal up to her actual
reinstatement.[5]

On 11 March 1996 petitioners moved for reconsideration. On 28 March 1996 the motion was
denied;[6] hence, this petition for certiorari challenging the NLRC Decision and Resolution.

The crux of the controversy may be narrowed down to two (2) main issues: whether the
NLRC gravely abused its discretion in holding as illegal the dismissal of private respondent,
and whether she is entitled to damages in the event that the illegality of her dismissal is
sustained. Jjjuris

The Labor Code as amended provides specific grounds by which an employer may validly
terminate the services of an employee,[7] which grounds should be strictly construed since a
persons employment constitutes "property" under the context of the constitutional protection
that "no person shall be deprived of life, liberty or property without due process of law" and,
as such, the burden of proving that there exists a valid ground for termination of employment
rests upon the employer.[8] Likewise, in light of the employee's right to security of tenure,
where a penalty less punitive than dismissal will suffice, whatever missteps may have been
committed by labor ought not to be visited with a consequence so severe.[9]

A perusal of the termination letter indicates that private respondent was discharged from
employment for "serious misconduct, gross and habitual neglect of duties and fraud or willful
breach of trust." Specifically -justice

1. On August 2, 1994, you committed acts constituting gross disrespect to your

superior Mr. William Chua, the Plant Manager.

2. On August 23, 1994, the Plant Manager entrusted you the amount
of P1,488.00 to be sent to CLMC for Mr. Fang but the money was allegedly lost
in your possession and was not recovered.

3. On September 6, 1994, you caused someone else to punch-in your time

card to show that you were at work when in fact you were doing a personal
errand for Richard Tan. As per time card you were in at 8:02 A.M. but you only
arrived at 12:35 P.M.

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 4. On July 28, 1994, you received an amount of P900.00 from Miss Lucy Lao to
open an ATM card of nine (9) employees. On September 24, 1994, one of the
employees complained by the name of Tirso Aquino about the status of his
ATM Card and upon query from the bank it was found out that no application
and no deposit for said person has been made. Likewise, it was found out that
you did not open the ATM Card and deposit the P800.00 for the 8 other
employees. It turned out that said deposit was made after a month later. [10]

As to the first charge, respondent Cortez claims that as early as her first year of employment
her Plant Manager, William Chua, already manifested a special liking for her, so much so
that she was receiving special treatment from him who would oftentimes invite her "for a
date," which she would as often refuse. On many occasions, he would make sexual
advances - touching her hands, putting his arms around her shoulders, running his fingers on
her arms and telling her she looked beautiful. The special treatment and sexual advances
continued during her employment for four (4) years but she never reciprocated his flirtations,
until finally, she noticed that his attitude towards her changed. He made her understand that
if she would not give in to his sexual advances he would cause her termination from the
service; and he made good his threat when he started harassing her. She just found out one
day that her table which was equipped with telephone and intercom units and containing her
personal belongings was transferred without her knowledge to a place with neither telephone
nor intercom, for which reason, an argument ensued when she confronted William Chua
resulting in her being charged with gross disrespect.[11]

Respondent Cortez explains, as regards the second charge, that the money entrusted to her
for transmittal was not lost; instead, she gave it to the company personnel in-charge for
proper transmittal as evidenced by a receipt duly signed by the latter.[12]

With respect to the third imputation, private respondent admits that she asked someone to
punch-in her time card because at that time she was doing an errand for one of the
company's officers, Richard Tan, and that was with the permission of William Chua. She
maintains that she did it in good faith believing that she was anyway only accommodating the
request of a company executive and done for the benefit of the company with the
acquiescence of her boss, William Chua. Besides, the practice was apparently tolerated as
the employees were not getting any reprimand for doing so.[13]

As to the fourth charge regarding her alleged failure to process the ATM cards of her co-
employees, private respondent claims that she has no knowledge thereof and therefore
denies it. After all, she was employed as a company nurse and not to process ATM cards for
her co-employees. Jksm

The Supreme Court, in a litany of decisions on serious misconduct warranting dismissal of an

employee, has ruled that for misconduct or improper behavior to be a just cause for dismissal
(a) it must be serious; (b) must relate to the performance of the employees duties; and, (c)
must show that the employee has become unfit to continue working for the employer. [14] The
act of private respondent in throwing a stapler and uttering abusive language upon the
person of the plant manager may be considered, from a lay man's perspective, as a serious
misconduct. However, in order to consider it a serious misconduct that would justify dismissal
under the law, it must have been done in relation to the performance of her duties as would
show her to be unfit to continue working for her employer. The acts complained of, under the
circumstances they were done, did not in any way pertain to her duties as a nurse. Her
employment identification card discloses the nature of her employment as a nurse and no
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other.[15] Also, the memorandum informing her that she was being preventively suspended
pending investigation of her case was addressed to her as a nurse. [16]

As regards the third alleged infraction, i.e., the act of private respondent in asking a co-
employee to punch-in her time card, although a violation of company rules, likewise
does not constitute serious misconduct. Firstly, it was done by her in good faith considering
that she was asked by an officer to perform a task outside the office, which was for the
benefit of the company, with the consent of the plant manager. Secondly, it was her first time
to commit such infraction during her five (5)-year service in the company. Finally, the
company did not lose anything by reason thereof as the offense was immediately known and
corrected. Es m

On alleged infraction No. 4, as may be gleaned from and admitted in the memorandum of
petitioners to private respondent dated 20 October 1994[17] and the notice of termination
dated 3 November 1994, the money entrusted to her was in fact deposited in the respective
accounts of the employees concerned, although belatedly. We agree with the submission of
the Solicitor General that -Es msc

The mere delay/failure to open an ATM account for nine employees is not
sufficient, by itself, to support a conclusion that Rosalinda is guilty of gross and
habitual neglect of duties. First, petitioner did not show that opening an ATM is
one of her primary duties as company nurse. Second, petitioner failed to show
that Rosalinda intentionally, knowingly, and purposely delayed the opening of
ATM accounts for petitioners employees. It is of common knowledge that a
bank imposes upon an applicant certain requirements before an ATM account
can be opened, i.e. properly filled up application forms, identification cards,
minimum deposit etc. In the instant case, petitioner did not prove that the delay
was caused by Rosalindas neglect or willful act (emphasis supplied).[18]

Gross negligence implies a want or absence of or failure to exercise slight care or diligence,
or the entire absence of care. It evinces a thoughtless disregard of consequences without
exerting any effort to avoid them.[19] The negligence, to warrant removal from service, should
not merely be gross but also habitual. Likewise, the ground "willful breach by the employee of
the trust reposed in him by his employer" must be founded on facts established by the
employer who must clearly and convincingly prove by substantial evidence the facts and
incidents upon which loss of confidence in the employee may fairly be made to rest. [20] All
these requirements prescribed by law and jurisprudence are wanting in the case at bar.

On the issue of moral and exemplary damages, the NLRC ruled that private respondent was
not entitled to recover such damages for her failure to prove that petitioner corporation had
been motivated by malice or bad faith or that it acted in a wanton, oppressive or malevolent
manner in terminating her services. In disbelieving the explanation proffered by private
respondent that the transfer of her table was the response of a spurned lothario, public
respondent quoted the Labor Arbiter -

Complainants assertion that the cause of the altercation between her and the
Plant Manager where she threw a stapler to him and uttered invectives against
him was her refusal to submit to his advances to her which started from her
early days of employment and lasted for almost four years, is hardly believable.
For indeed, if there was such harassment, why was there no complaints (sic)
from her during that period? Why did she stay there for so long? Besides, it
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 could not have taken that period for the Plant Manager to react. This assertion
of the complainant deserves no credence at all.[21]

Public respondent in thus concluding appears baffled why it took private respondent more
than four (4) years to expose William Chua's alleged sexual harassment. It reasons out that it
would have been more prepared to support her position if her act of throwing the stapler and
uttering invectives on William Chua were her immediate reaction to his amorous overtures. In
that case, according to public respondent, she would have been justified for such outburst
because she would have been merely protecting her womanhood, her person and her
rights. Esmm is

We are not persuaded. The gravamen of the offense in sexual harassment is not the
violation of the employee's sexuality but the abuse of power by the employer. Any employee,
male or female, may rightfully cry "foul" provided the claim is well substantiated. Strictly
speaking, there is no time period within which he or she is expected to complain through the
proper channels. The time to do so may vary depending upon the needs, circumstances, and
more importantly, the emotional threshold of the employee. Esmso

Private respondent admittedly allowed four (4) years to pass before finally coming out with
her employer's sexual impositions. Not many women, especially in this country, are made of
the stuff that can endure the agony and trauma of a public, even corporate, scandal. If
petitioner corporation had not issued the third memorandum that terminated the services of
private respondent, we could only speculate how much longer she would keep her silence.
Moreover, few persons are privileged indeed to transfer from one employer to another. The
dearth of quality employment has become a daily "monster" roaming the streets that one
may not be expected to give up one's employment easily but to hang on to it, so to speak, by
all tolerable means. Perhaps, to private respondent's mind, for as long as she could outwit
her employer's ploys she would continue on her job and consider them as mere occupational
hazards. This uneasiness in her place of work thrived in an atmosphere of tolerance for four
(4) years, and one could only imagine the prevailing anxiety and resentment, if not bitterness,
that beset her all that time. But William Chua faced reality soon enough. Since he had no
place in private respondent's heart, so must she have no place in his office. So, he provoked
her, harassed her, and finally dislodged her; and for finally venting her pent-up anger for
years, he "found" the perfect reason to terminate her. Mse sm

In determining entitlement to moral and exemplary damages, we restate the bases therefor.
In moral damages, it suffices to prove that the claimant has suffered anxiety, sleepless
nights, besmirched reputation and social humiliation by reason of the act complained
of.[22] Exemplary damages, on the other hand, are granted in addition to, inter alia, moral
damages "by way of example or correction for the public good"[23] if the employer "acted in a
wanton, fraudulent, reckless, oppressive or malevolent manner." [24]

Anxiety was gradual in private respondent's five (5)-year employment. It began when her
plant manager showed an obvious partiality for her which went out of hand when he started
to make it clear that he would terminate her services if she would not give in to his sexual
advances. Sexual harassment is an imposition of misplaced "superiority" which is enough to
dampen an employee's spirit in her capacity for advancement. It affects her sense of
judgment; it changes her life. If for this alone private respondent should be adequately
compensated. Thus, for the anxiety, the seen and unseen hurt that she suffered, petitioners
should also be made to pay her moral damages, plus exemplary damages, for the
oppressive manner with which petitioners effected her dismissal from the service, and to
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serve as a forewarning to lecherous officers and employers who take undue advantage of
their ascendancy over their employees. Ex sm

All told, the penalty of dismissal is too excessive and not proportionate to the alleged
infractions committed considering that it does not appear that private respondent was an
incorrigible offender or that she inflicted serious damage to the company, nor would her
continuance in the service be patently inimical to her employers interest. [25] Even the
suspension imposed upon her while her case was pending investigation appears to be
unjustified and uncalled for.

WHEREFORE, the Decision of public respondent National Labor Relations Commssion

finding the dismissal of private respondent Rosalinda C. Cortez to be without just cause and
ordering petitioners Philippine Aeolus Automotive United Corporation and/or Francis Chua to
pay her back wages computed from the time of her dismissal, which should be full back
wages, is AFFIRMED. However, in view of the strained relations between the adverse
parties, instead of reinstatement ordered by public respondent, petitioners should pay private
respondent separation pay equivalent to one (1) month salary for every year of service until
finality of this judgment. In addition, petitioners are ordered to pay private
respondent P25,000.00 for moral damages and P10,000.00 for exemplary damages. Costs
against petitioners. Kyle

SO ORDERED.

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