17. Aurora Land Projects vs NLRC
the power of control refers merely to
FACTS: Private respondent Honorio Dagui was hired by
Doa Aurora Suntay Tanjangco in 1953 to take charge of
the maintenance and repair of the Tanjangco
apartments and residential buildings. He was to perform
carpentry, plumbing, electrical and masonry work. Upon
the death of Doa Aurora Tanjangco in 1982, her
daughter, petitioner Teresita Tanjangco Quazon, took
over the administration of all the Tanjangco properties.
On June 8, 1991, private respondent Dagui received the
shock of his life when Mrs. Quazon suddenly told him:
"Wala ka nang trabaho mula ngayon,"[3] on the alleged
ground that his work was unsatisfactory. On August 29,
1991, private respondent, who was then already sixty-
two (62) years old, filed a complaint for illegal dismissal
with the Labor Arbiter.
LA: Respondents Aurora Plaza and/or Teresita
Tanjangco Quazon are hereby ordered to pay the
complainant the total amount of ONE HUNDRED
NINETY FIVE THOUSAND SIX HUNDRED TWENTY
FOUR PESOS (P195,624.00) representing
complainant's separation pay and the ten (10%) percent
attorney's fees within ten (10) days from receipt of this
Decision.
All other issues are dismissed for lack of merit.
Aurora appealed to NLRC
NLRC: The Commission affirmed, with modification, the
Labor Arbiter's decision in a Resolution promulgated
that complainant must be paid separation pay in the
amount of P88,920.00 instead of P177,840.00. The
award of attorney's fees is hereby deleted.
Petitioner elevated the case. Petitioners insist that
private respondent had never been their employee.
Since the establishment of Aurora Plaza, Dagui served
therein only as a job contractor. Dagui had control and
supervision of whoever he would take to perform a
contracted job. On occasion, Dagui was hired only as a
"tubero" or plumber as the need arises in order to unclog
sewerage pipes. Every time his services were needed,
he was paid accordingly. It was understood that his job
was limited to the specific undertaking of unclogging the
pipes. In effect, petitioners would like us to believe that
private respondent Dagui was an independent
contractor, particularly a job contractor, and not an
employee of Aurora Plaza.
ISSUE: Whether or not private respondent Honorio
Dagui was an employee of petitioners; and (2) If he
were, whether or not he was illegally dismissed.
HELD: Control Test of Employer- Employee
relationship: (a) the selection and engagement of the
employee; (b) the payment of wages; (c) the power of
dismissal; and (d) the employer's power to control the
employee's conduct. All these elements are present in
the case at bar. Private respondent was hired in 1953
by Doa Aurora Suntay Tanjangco. Dagui was not
compensated in terms of profits for his labor or services
like an independent contractor. Rather, he was paid on
a daily wage basis at the rate of P180.00. Doa Aurora
and later her daughter petitioner Teresita Quazon
evidently had the power of dismissal for cause over the
private responden.
the existence of the power and not to the actual exercise
thereof. It is not essential for the employer to actually
supervise the performance of duties of the employee; it
is enough that the former has a right to wield the power.
Status: He was Regular employee under article 280. an
employment shall be deemed to be regular where the
employee has been engaged to perform activities which
are usually necessary or desirable in the usual business
or trade of the employer. The jobs assigned to private
respondent as maintenance man, carpenter, plumber,
electrician and mason were directly related to the
business of petitioners as lessors of residential and
apartment buildings. Moreover, such a continuing need
for his services by herein petitioners is sufficient
evidence of the necessity and indispensability of his
services to petitioners' business or trade. Owing to
private respondent's length of service, he became a
regular employee, by operation of law, one year after he
was employed in 1953 and subsequently in 1982.
If dismissed illegally: Yes. the rule that the twin
requirements of due process, substantive and
procedural, must be complied with, before a valid
dismissal exists.[28] Without which the dismissal
becomes void.[29] the employer must furnish the worker
sought to be dismissed with two written notices before
termination of employee can be legally effected: (1)
notice which apprises the employee of the particular
acts or omissions for which his dismissal is sought; and
(2) the subsequent notice which informs the employee
of the employer's decision to dismiss him (Section 13,
BP 130; Sections 2-6, Rule XIV, Book V Rules and
Regulations Implementing the Labor Code as
amended). Failure to comply with the requirements
taints the dismissal with illegality.
WHEREFORE, the instant petition is partly GRANTED
and the Resolution of the public respondent National
Labor Relations Commission dated March 16, 1994 is
hereby MODIFIED in that the award of separation pay
against the petitioners shall be reckoned from the date
private respondent was re-employed by the petitioners
in 1982, until June 8, 1991. In addition to separation
pay, full backwages are likewise awarded to private
respondent, inclusive of allowances, and other benefits
or their monetary equivalent pursuant to Article
279[46] of the Labor Code
18. Mylene Carvajal v. Luzon Dev Bank
FACTS: Carvajal was employed as a trainee-teller by
Luzon Development Bank (Bank) under a six-month
probationary employment contract. Ramirez is the
President and CEO of the Bank. A month into her
employment, she was send a Memorandum directing
her to explain in writing why she should not be subjected
to disciplinary action for her eight tardiness on
November 2003. A second Memorandum was sent to
her on January for her again chronic tardiness on
December 2003. She submitted her written
explanations for both events and manifested her
acceptance of the consequences of her actions. She
was terminated for three days effective 21 January
2004. However, on 22 January, her termination was
lifted but at the same time, her services were
terminated. In the respondents’ position paper to the
LA, they explained that the reasons for her absence are
chronic tardiness, absenteeism and failure to perform
satisfactorily as a probationary employee.
LA Decision: The petitioner was illegally dismissed
because she was not afforded the notice in writing
informing her of what the Bank would like to bring out to
her for the latter to answer in writing.
NLRC Decision: NLRC affirmed the decision of the LA.
CA Decision: The CA found that the petitioner was not
entitled to backwages because she was rightfully
dismissed for failure to meet the employment standards.
ISSUE: Whether the petitioner can be considered a
regular employee at the time of her dismissal.
HELD: No. Carvajal’s appointment letter reads that
“Possible extension of this contract will depend on the
job requirements of the Bank and your overall
performance. Performance review will be conducted
before possible renewal can take effect.” Therefore,
petitioner knew, at the time of her engagement, that she
must comply with the standards set forth by respondent
and perform satisfactorily in order to attain regular
status. Even the NLRC upheld the petitoner’s
probationary status, stating that reinstatement is not
synonymous to regularization.
Although probationary employees also enjoy security of
tenure, he may still be terminated because of just and
authorized causes of termination and the additional
ground under Article 281 of the Labor Code, i.e. the
probationary employee may also be terminated for
failure to qualify as a regular employee in accordance
to the reasonable standards set by the employer.
Punctuality is a reasonable standard imposed on every
employee, whether in government or private sector.
This, together with absenteeism, underperformance
and mistake in clearing a check are infractions that
cannot be tantamount to satisfactory standards.
In addition to the abovementioned, it has been
previously held in PDI vs. Magtibay, Jr., that the second
requirement under Article 281 does not require notice
and hearing. Due process of law for this second ground
consists of making the reasonable standards expected
of the employee during his probationary period known
to him at the time of his engagement. By the very nature
of probationary employment, the employee knows from
the very start that he will be under close observation and
continuous scrutiny by his supervisors. If termination is
for cause, it may be done at anytime during the
probation.
19. Abbot vs Alcaraz
FACTS: Petitioner Abbott Laboratories, Philippines
(Abbott) caused the publication in a major broadsheet
newspaper of its need for a Medical and Regulatory
Affairs Manager. Alcaraz - who was then a Regulatory
Affairs and Information Manager at Aventis Pasteur
Philippines, Incorporated (another pharmaceutical
company like Abbott) showed interest and submitted
her application.
In Abbotts offer sheet, it was stated that Alcaraz was to
be employed on a probationary basis. Later that day,
she accepted the said offer and received an electronic
mail (e-mail) from Abbotts Recruitment Officer,
petitioner Teresita C. Bernardo (Bernardo), confirming
the same. Attached to Bernardos e-mail were Abbotts
organizational chart and a job description of Alcarazs
work.
During Alcarazs pre-employment orientation, petitioner
Allan G. Almazar (Almazar), Hospiras Country
Transition Manager, briefed her on her duties and
responsibilities as Regulatory Affairs Manager.
Petitioner Kelly Walsh (Walsh), Manager of the
Literature Drug Surveillance Drug Safety of Hospira, will
be her immediate supervisor. Petitioner Maria Olivia T.
Yabut-Misa (Misa), Abbotts Human Resources (HR)
Director, sent Alcaraz an e-mail which contained an
explanation of the procedure for evaluating the
performance of probationary employees.
During the course of her employment, Alcaraz noticed
that some of the staff had disciplinary problems. Thus,
she would reprimand them for their unprofessional
behavior such as non-observance of the dress code,
moonlighting, and disrespect of Abbott officers.
However, Alcarazs method of management was
considered by Walsh to be "too strict."
Alcaraz was called to a meeting with Walsh and
Terrible, Abbotts former HR Director, where she was
informed that she failed to meet the regularization
standards for the position of Regulatory Affairs
Manager. Walsh, Almazar, and Bernardo personally
handed to Alcaraz a letter stating that her services had
been terminated effective May 19, 2005. The letter
detailed the reasons for Alcarazs termination. Alcaraz
felt that she was unjustly terminated from her
employment and thus, filed a complaint for illegal
dismissal and damages against Abbott and its officers,
namely, Misa, Bernardo, Almazar, Walsh, Terrible, and
Feist. She claimed that she should have already been
considered as a regular and not a probationary
employee given Abbotts failure to inform her of the
reasonable standards for her regularization upon her
engagement as required under Article 295 of the Labor
Code.
LA decision: LA dismissed Alcarazs complaint for lack
of merit. The LA rejected Alcarazs argument that she
was not informed of the reasonable standards to qualify
as a regular employee.
NLRC Decision: The NLRC reversed the findings of the
LA and ruled that there was no evidence showing that
Alcaraz had been apprised of her probationary status
and the requirements which she should have complied
with in order to be a regular employee
CA decision: Affirmed NLRC’s
ISSUE: WON Alcaraz was illegally dismissed
HELD: The probationary employee may also be
terminated for failure to qualify as a regular employee in
accordance with the reasonable standards made known
by the employer to the employee at the time of the
engagement. hus, the services of an employee who has
been engaged on probationary basis may be terminated
for any of the following: (a) a just or (b) an authorized
cause; and (c) when he fails to qualify as a regular
employee in accordance with reasonable standards
prescribed by the employer. (Article 295) Labor Code.
Alcaraz was well-aware that her regularization would
depend on her ability and capacity to fulfill the
requirements of her position as Regulatory Affairs
Manager and that her failure to perform such would give
Abbott a valid cause to terminate her probationary
employment.
Hence, since the reasonableness of Alcaraz's
assessment clearly appears from the records, her
termination was justified. Bear in mind that the quantum
of proof which the employer must discharge is only
substantial evidence which, as defined in case law,
means that amount of relevant evidence as a
reasonable mind might accept as adequate to support
a conclusion, even if other minds, equally reasonable,
might conceivably opine otherwise.14 To the Court's
mind, this threshold of evidence Abbott amply overcame
in this case.
WHEREFORE, the motion for reconsideration dated
August 23, 2013 of the Court's Decision dated July 23,
2013 in this case is hereby DENIED.
20. Armando Aliling vs Jose Feliciano
FACTS: Respondent Wide Wide World Express
Corporation (WWWEC) offered to employ petitioner
Armando Aliling (Aliling) on June 2, 2004 as “Account
Executive (Seafreight Sales),” with a compensation
package of a monthly salary of PhP 13,000,
transportation allowance of PhP 3,000, clothing
allowance of PhP 800, cost of living allowance of PhP
500, each payable on a per month basis and a 14th
month pay depending on the profitability and availability
of financial resources of the company. The offer came
with a six (6)-month probation period condition with this
express caveat: “Performance during probationary
period shall be made as basis for confirmation to
Regular or Permanent Status.”
On June 11, 2004, Aliling and WWWEC inked an
Employment Contract under the terms of conversion to
regular status shall be determined on the basis of work
performance; and employment services may, at any
time, be terminated for just cause or in accordance with
the standards defined at the time of engagement.
However, instead of a Seafreight Sale assignment,
WWWEC asked Aliling to handle Ground Express (GX),
a new company product launched on June 18, 2004
involving d domestic cargo forwarding service for
Luzon. Marketing this product and finding daily
contracts for it formed the core of Aliling’s new
assignment. A month after, Manuel F. San Mateo III
(San Mateo), WWWEC Sales and Marketing Director,
emailed Aliling to express dissatisfaction with the
latter’s performance.
On September 25, 2004, Joseph R. Lariosa (Lariosa),
Human Resources Manager of WWWEC, asked Aliling
to report to the Human Resources Department to
explain his absence taken without leave from
September 20, 2004. Aliling responded two days later.
He denied being absent on the days in question,
attaching to his reply-letter a copy of his timesheet
which showed that he worked from September 20 to
24, 2004. Aliling’s explanation came with a query
regarding the withholding of his salary corresponding
to September 11 to 25, 2004. On October 15, 2004,
Aliling tendered his resignation to San Mateo.
While WWWEC took no action on his tender, Aliling
nonetheless demanded reinstatement and a written
apology, claiming in a subsequent letter dated October
1, 2004 to management that San Mateo had forced him
to resign. Lariosa’s response-letter of October 1, 2004,
informed Aliling that his case was still in the process of
being evaluated. On October 6, 2004, Lariosa again
wrote, this time to advise Aliling of the termination of
his services effective as of that date owing to his “non-
satisfactory performance” during his probationary
period. Records show that Aliling, for the period
indicated, was paid his outstanding salary.
However, or on October 4, 2004, Aliling filed a
Complaint for illegal dismissal due to forced
resignation, nonpayment of salaries as well as damages
with the NLRC against WWWEC. Appended to the
complaint was Aliling’s Affidavit dated November 12,
2004, in which he stated: “5. At the time of my
engagement, respondents did not make known to me
the standards under which I will qualify as a regular
employee.” Refuting Aliling’s basic posture, WWWEC
stated that in the letter offer and employment contract
adverted to, WWWEC and Aliling have signed a letter
of appointment on June 11, 2004 containing the terms
of engagement.
WWWEC also attached to its Position Paper a memo
dated September 20, 2004 in which San Mateo asked
Aliling to explain why he should not be terminated for
failure to meet the expected job performance,
considering that the load factor for the GX Shuttles for
the period July to September was only 0.18% as
opposed to the allegedly agreed upon load of 80%
targeted for August 5, 2004. According to WWWEC,
Aliling, instead of explaining himself, simply submitted
a resignation letter
LA: issued a decision declaring that the grounds upon
which complainant’s dismissal was based did not
conform not only the standard but also the compliance
required under Article 281 of the Labor Code,
Necessarily, complainant’s termination is not justified
for failure to comply with the mandate the law
requires. Respondents should be ordered to pay
salaries corresponding to the unexpired portion of the
contract of employment and all other benefits
amounting to a total of P35,811.00 covering the period
from October 6 to December 7, 2004. The Labor Arbiter
explained that Aliling cannot be validly terminated for
noncompliance with thw quota threshold absent a
prior advisory of the reasonable standards upon which
his performance would be evaluated
Both parties appealed to NLRC
NLRC: The separate motions for reconsideration were
also denied by the NLRC.
CA: CA anchored its assailed action on the strength of
the following premises: (a) respondents failed to prove
that Aliling’s dismal performance constituted gross and
habitual neglect necessary to justify his dismissal; (b)
not having been informed at the time of his
engagement of the reasonable standards under which
he will qualify as a regular employee, Aliling was
deemed to have been hired from day one as a regular
employee; and (c) the strained relationship existing
between the parties argues against the propriety of
reinstatement.
ISSUEs:
1) Whether petitioner is a regular employee.
2) Whether petitioner was illegally dismissed.or his
right to security of tenure was violated.
3) Whether Aliling’s right to procedural due process
was violated.
4) Whether Aliling is entitled to backwages and
separation pay in lieu of reinstatement.
HELD:
1) Petitioner was regularized from the time of the
execution of the employment contract on June 11,
2004, although respondent company had arbitrarily
shortened his tenure. As pointed out, respondent
company did not make known the reasonable
standards under which he will qualify as a regular
employee at the time of his engagement. Hence, he
was deemed to have been hired from day one as a
regular employee.
2) To justify fully the dismissal of an employee, the
employer must, as a rule, prove that the dismissal was
for a just cause and that the employee was afforded
due process prior to dismissal. As a complementary
principle, the employer has the onus of proving with
clear, accurate, consistent, and convincing evidence
the validity of the dismissal. The attendant
circumstances in the instant case aptly show that the
issue of petitioner’s alleged failure to achieve his
quota, as a ground for terminating employment, strikes
the Court as a mere afterthought on the part of
WWWEC. Consider: Lariosa’s letter of September 25,
2004 already betrayed management’s intention to
dismiss the petitioner for alleged unauthorized
absences. Aliling was in fact made to explain and he did
so satisfactorily. But, lo and behold, WWWEC
nonetheless proceeded with its plan to dismiss the
petitioner for nonsatisfactory performance, although
the corresponding termination letter dated October 6,
2004 did not even specifically state Aliling’s “non-
satisfactory performance,” or that Aliling’s termination
was by reason of his failure to achieve his set quota.
Employees must be reminded that while probationary
employees do not enjoy permanent status, they enjoy
the constitutional protection of security of tenure.
They can only be terminated for cause or when they
otherwise fail to meet the reasonable standards made
known to them by the employer at the time of their
engagement. Respondent WWWEC miserably failed to
prove the termination of petitioner was for a just cause
nor was there substantial evidence to demonstrate the
standards were made known to the latter at the time
of his engagement. Hence, petitioner’s right to security
of tenure was breached.
3) To effect a legal dismissal, the employer must show
not only a valid ground therefor, but also that
procedural due process has properly been observed.
When the Labor Code speaks of procedural due
process, the reference is usually to the two (2)-written
notice rule envisaged in Section 2 (III), Rule XXIII, Book
V of the Omnibus Rules Implementing the Labor Code.
4) As of that date June 11, 2004, Aliling became part of
the WWWEC organization as a regular employee of the
company without a fixed term of employment. Thus,
he is entitled to backwages reckoned from the time he
was illegally dismissed on October 6, 2004, with a PhP
17,300.00 monthly salary, until the finality of this
Decision. Article 279 of the Labor Code, as amended by
Section 34 of Republic Act 6715 instructs: Art. 279.
Security of Tenure. - In cases of regular employment,
the employer shall not terminate the services of an
employee except for a just cause or when authorized
by this Title. An employee who is unjustly dismissed
from work shall be entitled to reinstatement without
loss of seniority rights and other privileges and to his
full backwages, inclusive of allowances, and to his
other benefits or their monetary equivalent computed
from the time his compensation was withheld from
him up to the time of his actual reinstatement. The law
intends the award of backwages and similar benefits to
accumulate past the date of the Labor Arbiter’s
decision until the dismissed employee is actually
reinstated. But if, as in this case, reinstatement is no
longer possible, this Court has consistently ruled that
backwages shall be computed from the time of illegal
dismissal until the date the decision becomes final.
Additionally, Aliling is entitled to separation pay in lieu
of reinstatement on the ground of strained
relationship. The basis for the payment of backwages
is different from that for the award of separation pay.
Separation pay is granted where reinstatement is no
longer advisable because of strained relations between
the employee and the employer. Backwages represent
compensation that should have been earned but were
not collected because of the unjust dismissal. The basis
for computing backwages is usually the length of the
employee's service while that for separation pay is the
actual period when the employee was unlawfully
prevented from working.
Dispositive Portion: WHEREFORE, the petition is
PARTIALLYGRANTED. The assailed Resolutions of
respondent (Third Division) National Labor Relations
Commission are AFFIRMED, with the following
MODIFICATION/CLARIFICATION: Respondent Wide
Wide World Express Corp. is liable to pay Armando
Aliling the following: (a) backwages reckoned from
October 6, 2004 up to the finality of this Decision based
on a salary of PhP 17,300 a month, with interest at 6%
per annum on the principal amount from October 6,
2004 until fully paid; (b) the additional sum equivalent
to one (1) month salary for every year of service, with
a fraction of at least six (6) months considered as one
whole year based on the period from June 11, 2004
(date of employment contract) until the finality of this
Decision, as separation pay; (c) PhP 30,000 as nominal
damages; and (d) Attorney’s Fees equivalent to 10% of
the total award.
21. Iluminada Ver Buiser vs. Vicente Leogardo
FACTS: Petitioners were employed by the private
respondent GENERAL TELEPHONE DIRECTORY
COMPANY as sales representatives and charged with
the duty of soliciting advertise-ments for inclusion in a
telephone directory.
The records show that petitioners Iluminada Ver Buiser
and Ma. Mercedes P. Intengan entered into an
"Employment Contract (on Probationary Status)" on
May 26, 1980 with private respondent, a corporation
engaged in the business of publication and circulation
of the directory of... the Philippine Long Distance
Telephone Company. Petitioner Ma. Cecilia Rillo-Acuña
entered into the same employment contract on June 11,
1980 with the private respondent.
The company hereby employs the employee as
telephone sales representative on a probationary status
for a period of eighteen (18) months,... The Employee
recognizes the fact that the nature of the telephone
sales representative's job is such that the company
would be able to determine his true character, conduct
and selling capabilities only after the publication of the
directory, and that it takes about eighteen
(18) months before his worth as a telephone sales
representative can be fully evaluated inasmuch as the
advertisement solicited by him for a particular year are
published in the directory only the following year."
The records show that the private... respondent
terminated the services of petitioners Iluminada Ver
Buiser and Cecilia Rillo-Acuña on May 14, 1981 and
peti-tioner Ma. Mercedes P. Intengan on May 18, 1981
for their failure to meet their sales quotas.
On appeal, Deputy Minister Vicente Leogardo, Jr. of the
Ministry of Labor issued an Order dated January 7,
1983, affirming the Regional Director's Order dated
September 21, 1982, wherein it ruled that the petitioners
have not attained permanent status since private
respondent... was justified in requiring a longer period
of probation, and that the termination of petitioners'
services was valid since the latter failed to meet their
sales quotas.
The Hon. Regional Director and the Hon. Deputy
Minister committed grave abuse of discretion
amounting to lack of jurisdiction in ruling that the
probationary employment of petitioners herein is
eighteen (18) months instead of the mandated six (6)
months under the Labor
Code, and in consequently further ruling that petitioners
are not entitled to security of tenure while under said
probation for 18 months.
The Hon. Regional Director and the Hon. Deputy
Minister committed grave abuse of discretion
amounting to lack of jurisdiction in ruling that petitioners
were dismissed for a just and valid cause.
The Hon. Regional Director and the Hon. Deputy
Minister committed grave abuse of discretion
amounting to lack of jurisdiction in ruling that petitioners
are not entitled to the commissions they have earned
and accrued during their period of employment.
Petitioners contend that under Articles 281-282 of the
Labor Code, having served the respondent company
continuously for over six (6) months, they have become
automatically regular employees notwithstanding an
agreement to the contrary
Policy Instruction No. 11 of the Minister of Labor and
Employment has clarified any and all doubts on the
period of probationary employment
Petitioners anchor their claim for commission pay on the
Collective Agreement (CBA) of September 1981, in
support of their third assignment of error. Petitioners
cannot avai... of this agreement since their services had
been terminated in May, 1981, at a time when the CBA
of
September, 1981 was not yet in existence.
For certiorari to lie, "there must be capricious, arbitrary
and whimsical exercise of power, the very antithesis...
of the judicial prerogative in accordance with centu...
ries of both civil and common law traditions."
Issues: This is a petition for certiorari seeking to set
aside the Order of the Deputy Minister of Labor and
Employment, affirming the Order of the Regional
Director, National Capital Region, in Case No. NCR-
STF-5-2851-81... which dismissed the petitioners'...
complaint for alleged illegal dismissal and unpaid
commission.
petitioners filed with the National Capital Region,
Ministry of Labor and Employment, a complaint for
illegal dismissal with claims for back-wages, earned
commissions and other benefits, docketed as Case No.
NCR-STF-5-2851-81.
Ruling: The Regional Director of said ministry, in an
Order dated September 21, 1982, dismissed the
complaints of the petitioners, except the claim for
allowances which private respondent was ordered to
pay. A reconsideration of the Order was sought by the
petitioners in a motion... filed on September 30, 1982.
This motion, however, was treated as an appeal to the
Minister of Labor.
Hence, this petition for certiorari on the alleged ground
that public respondent committed grave abuse of
discretion amounting to lack of jurisdiction. this petition
for certiorari on the alleged ground that public
respondent committed grave abuse of discretion
amounting to lack of jurisdiction. We reject petitioners'
contentions. They have no basis in law.
On the second assignment of error that public
respondent committed grave abuse of discretion in
ruling that petitioners were dismissed for a just and valid
cause. The National Labor Relations Commission and
General Telephone Directory Co.", G.R. No. L-64459,
July 25, 1983, the petition for certiorari which raised the
same issue against the herein private respondent was
dismissed by this Court for lack of merit.
WHEREFORE, the petition is DISMISSED for lack of
merit.
22. Woodridge School vs. Joanne Pe Benito
Facts:
On February 28, 2001, petitioner sent two separate
Memoranda[10] to respondents placing them under
preventive suspension for a period of thirty days on the
following grounds: 1) uttering defamatory remarks
against the school principal in the presence of their co-
teachers; 2) announcing to the students and teachers
their alleged immediate termination from service; 3)
tardiness; 4) spreading false accusations against
petitioner; 5) absence without official leave; and 6)
appearing on television and speaking over the radio to
malign petitioner. In the same memoranda,
respondents were required to explain in writing within
seventy-two (72) hours why they should not be
terminated from their employment. This prompted
respondents to commence an action for illegal
suspension before the NLRC. The case was docketed
as NLRC NCR CASE NO. RAB-IV-3-13593-01-C.
On March 19, 2001, petitioner issued respondents their
Notice of Termination,[11] each to take effect similarly
on March 31, 2001, citing the foregoing grounds. In
addition, petitioner informed respondents that they did
not qualify as regular employees for their failure to meet
the performance standards made known to them at the
start of their probationary period.
Respondents then amended their initial complaint, to
include illegal dismissal.
After the submission of the parties position papers, on
November 29, 2001, Labor Arbiter Vicente R. Layawen
rendered a Decision dismissing the complaint.[12] He
concluded that the termination of the respondents
probationary employment was justified because of their
failure to submit vital teaching documents. Specifically,
Pe Benito failed to submit her day book/lesson plans;
while Balaguer failed to submit the subject syllabi and
he had no record of class requirements as to quizzes,
seatworks, homeworks, and recitation which were
supposed to be the bases in rating the students
performance.[13] More importantly, the Labor Arbiter
found respondents guilty of serious misconduct
warranting their dismissal from service because of
maliciously spreading false accusation against the
school through the mass media. These acts, according
to the Labor Arbiter, made them unfit to remain in the
schools roster of teachers.
LA: validated the preventive suspension of respondents
for their having used the classroom as venue in
spreading uncorroborated charges against petitioner,
thus posing a serious threat to petitioners business and
reputation as a respectable institution
NLRC: he Commission affirmed[16] the Labor Arbiters
disposition in its entirety. The Commission concluded
that respondents acts, taken together, constitute
serious misconduct, warranting their dismissal from
service.
CA: CA granted the petition and set aside the NLRC
ruling in a decision. he appellate court declared the
preventive suspension of respondents invalid because
it was based on the alleged violation of school
regulations on the wearing of uniform, tardiness or
absence, and maliciously spreading false accusations
against the school, grounds that do not pose a serious
threat to the life or property of the employer or of the
workers.[18] Contrary to the Labor Arbiter and the
Commissions findings, the CA concluded that
respondents acts do not constitute serious misconduct.
Respondents act of exposing the alleged NSAT/NEAT
anomaly, as well as raising the other issues haunting
the school administration, only indicates their concern
for the integrity of the government examination and of
the school. The use of the mass media was simply the
respondents response to the petitioners inaction on
their grievances.[19] No bad faith could be attributed to
respondents in acting the way they did.
The appellate court likewise refused to sustain
petitioners contention that respondents failed to qualify
for permanent employment, as there was no sufficient
evidence to prove the same.[20] The appellate court
emphasized that because respondents are
probationary employees, legal protection extends only
to the period of their probation.[21] The dismissal
breached their probationary employment, and being
tainted with bad faith, the court upheld the award of
moral and exemplary damages.[22]
ISSUE: WON they were illegally dismissed.
HELD: The Labor Code commands that before an
employer may legally dismiss an employee from the
service, the requirement of substantial and procedural
due process must be complied with.[42] Under the
requirement of substantial due process, the grounds for
termination of employment must be based on just[43] or
authorized causes.[44]
The notices of termination sent by petitioner to
respondents stated that the latter failed to qualify as
regular employees.[38] However, nowhere in the
notices did petitioner explain the details of said failure
to qualify and the standards not met by respondents.
The tenor of the manifesto indicated good faith, as the
teachers, in fact, expressly stated that their ultimate
objective was not to put the school down, but to work for
some changes which would be beneficial to the
students, teachers, the school and the country as a
whole.
The totality of the acts of respondents cannot be
characterized as misconduct under the law, serious
enough to warrant the severe penalty of dismissal. This
is especially true because there is no finding of malice
or wrongful intent attributable to respondents.
petitioner insists that respondents preventive
suspension was proper, in view of the latters acts of
utilizing their time, not to teach, but to spread rumors
that the former was about to cease operation.[52]
The law is clear on this matter. While the employer may
place the worker concerned under preventive
suspension, it can do so only if the latters continued
employment poses a serious and imminent threat to the
life or property of the employer or of his co-workers.[53]
In this case, the grounds relied upon by petitioner in
placing respondents under preventive suspension were
the alleged violation of school rules and regulations on
the wearing of uniform, tardiness or absence, and
maliciously spreading false accusations against the
school.[54] These grounds do not, in any way, pose a
threat to the life or property of the school, of the teachers
or of the students and their parents. Hence, we affirm
the CAs conclusion that respondents preventive
suspension was illegal.
23. Phil Daily Inquirer V Leon Magtibay
FACTS: On February 7, 1995, PDI hired Magtibay, on
contractual basis, to assist, for a period of five months
from February 17, 1995, the regular phone operator.
Before the expiration of Magtibays contractual
employment, he and PDI agreed to a fifteen-day
contract extension, or from July 17, 1995 up to July 31,
1995, under the same conditions as the existing
contract.
After the expiration of Magtibays contractual
employment, as extended, PDI announced the creation
and availability of a new position for a second telephone
operator who would undergo probationary employment.
Apparently, it was PDIs policy to accord regular
employees preference for new vacancies in the
company. Thus, Ms. Regina M. Layague, a PDI
employee and member of respondent PDI Employees
Union (PDIEU), filed her application for the new
position. However, she later withdrew her application,
paving the way for outsiders or non-PDI employees, like
Magtibay in this case, to apply.
After the usual interview for the second telephone
operator slot, PDI chose to hire Magtibay on a
probationary basis for a period of six (6) months. The
signing of a written contract of employment followed.
On March 13, 1996, or a week before the end the
agreed 6-month probationary period, PDI officer Benita
del Rosario handed Magtibay his termination paper,
grounded on his alleged failure to meet company
standards.
Magtibay anchored his case principally on the postulate
that he had become a regular employee by operation of
law, considering that he had been employed by and had
worked for PDI for a total period of ten months, i.e., four
months more than the maximum six-month period
provided for by law on probationary employment. He
also claimed that he was not apprised at the beginning
of his employment of the performance standards of the
company, hence, there was no basis for his dismissal.
Finally, he described his dismissal as tainted with bad
faith and effected without due process.
PDI, for its part, denied all the factual allegations of
Magtibay, adding that his previous contractual
employment was validly terminated upon the expiration
of the period stated therein. Pressing the point, PDI
alleged that the period covered by the contractual
employment cannot be counted with or tacked to the
period for probation, inasmuch as there is no basis to
consider Magtibay a regular employee. PDI additionally
claimed that Magtibay was dismissed for violation of
company rules and policies, such as allowing his lover
to enter and linger inside the telephone operators booth
and for failure to meet prescribed company standards
which were allegedly made known to him at the start
through an orientation seminar conducted by the
company.
LA: Found r PDI and accordingly dismissed Magtibays
complaint for illegal dismissal. The Labor Arbiter
premised his holding on the validity of the previous
contractual employment of Magtibay as an independent
contract. He also declared as binding the stipulation in
the contract specifying a fixed period of employment.
According to the Labor Arbiter, upon termination of the
period stated therein, the contractual employment was
also effectively terminated, implying that Magtibay was
merely on a probationary status when his services were
terminated inasmuch as the reckoning period for
probation should be from September 21, 1995 up to
March 31, 1996 as expressly provided in their
probationary employment contract. In fine, it was the
Labor Arbiters position that Magtibays previous
contractual employment, as later extended by 15 days,
cannot be considered as part of his subsequent
probationary employment.
Apart from the foregoing consideration, the Labor
Arbiter further ruled that Magtibays dismissal from his
probationary employment was for a valid reason. Albeit
the basis for termination was couched in the abstract,
i.e., you did not meet the standards of the company,
there were three specific reasons for Magtibays
termination, to wit: (1) he repeatedly violated the
company rule prohibiting unauthorized persons from
entering the telephone operators room; (2) he
intentionally omitted to indicate in his application form
his having a dependent child; and (3) he exhibited lack
of sense of responsibility by locking the door of the
telephone operators room on March 10, 1996 without
switching the proper lines to the company guards so
that incoming calls may be answered by them.
The Labor Arbiter likewise dismissed allegations of
denial of due process and the commission by PDI of
unfair labor practice.
NLRC: NLRC reversed and set aside said decision,
effectively ruling that Magtibay was illegally dismissed.
According to the NLRC, Magtibays probationary
employment had ripened into a regular one.
CA: Affirmed the decision of NLRC. etitioner PDI failed
to prove that such rules and regulations were included
in or form part of the standards that were supposed to
be made known to respondent Magtibay at the time of
his engagement as telephone operator. Particularly, as
regards the first stated infraction xxx petitioner PDI,
contrary to its assertion, stated in its position paper,
motion for reconsideration and in this petition that
respondent Magtibay failed to abide by the rules and
regulations of the company issued by Ms. Benita del
Rosario regarding the entry of persons in the operators
booth when respondent was already working for
petitioner PDI. Further, nowhere can it be found in the
list of Basic Responsibility and Specific Duties and
Responsibilities (Annex D of the petition) of respondent
Magtibay that he has to abide by the duties, rules and
regulations that he has allegedly violated. The
infractions considered by petitioner PDI as grounds for
the dismissal of respondent Magtibay may at most be
classified as just causes for the termination of the latters
employment.
ISSUE: WON Magtibay was illegally dismissed?
HELD: NO. PDI invokes the second ground under the
premises. It is on record that Magtibay committed
obstinate infractions of company rules and regulations,
which in turn constitute sufficient manifestations of his
inadequacy to meet reasonable employment norms.
All employees, be they regular or probationary, are
expected to comply with company-imposed rules and
regulations, else why establish them in the first place.
Probationary employees unwilling to abide by such
rules have no right to expect, much less demand,
permanent employment. We, therefore find sufficient
factual and legal basis, duly established by substantial
evidence, for PDI to legally terminate Magtibays
probationary employment effective upon the end of the
6-month probationary period.
Unlike under the first ground for the valid termination of
probationary employment which is for just cause, the
second ground does not require notice and hearing.
Due process of law for this second ground consists of
making the reasonable standards expected of the
employee during his probationary period known to him
at the time of his probationary employment. By the very
nature of a probationary employment, the employee
knows from the very start that he will be under close
observation and his performance of his assigned duties
and functions would be under continuous scrutiny by his
superiors.
PDI was only exercising its statutory hiring prerogative
when it refused to hire Magtibay on a permanent basis
upon the expiration of the six-month probationary
period.
WHEREFORE, the assailed decision dated May 25,
2004 of the CA in CA G.R. SP No. 78963 is hereby
REVERSED and SET ASIDE, and the earlier resolution
dated September 23, 2002 of the NLRC in NLRC Case
No. 00-03-01945-96 is declared NULL and VOID. The
earlier decision dated July 29, 1996 of the Labor Arbiter
in NLRC Case No. 011800-96, dismissing respondent
Leon Magtibay, Jr.s complaint for alleged illegal
dismissal, is REINSTATED.
25. Mcarthur Malicdem vs. Marulas
FACTS: Malicdem and Flores were first hired by
Marulas as extruder operators in 2006, as shown by
their employment contracts. They were responsible for
the bagging of filament yarn, the quality of pp yarn
package and the cleanliness of the work place area.
Their employment contracts were for a period of one (1)
year. Every year thereafter, they would sign a
Resignation/Quitclaim in favor of Marulas a day after
their contracts ended, and then sign another contract for
one (1) year. Until one day, on December 16, 2010,
Flores was told not to report for work anymore after
being asked to sign a paper by Marulas’ HR Head to the
effect that he acknowledged the completion of his
contractual status. On February 1, 2011, Malicdem was
also terminated after signing a similar document. Thus,
both claimed to have been illegally dismissed.
Marulascountered that their contracts showed that they
were fixed–term employees for a specific undertaking
which was to work on a particular order of a customer
for a specific period. Their severance from employment
was due to the expiration of their contracts.

On February 7, 2011, Malicdem and Flores lodged a
complaint against Marulas and Mancilla for illegal
dismissal.
LA: endered a decision5 in favor of the respondents,
finding no illegal dismissal. He ruled that Malicdemand
Flores were not terminated and that their employment
naturally ceased when their contracts expired. The LA,
however, ordered Marulas to pay Malicdem and Flores
their respective wage differentials.
Malicdem appealed to NLRC
NLRC: Partially granted their appeal with the award of
payment of 13th month pay, service incentive leave and
holiday pay for three (3) years.
Malicdem filed MFR in NLRC but the latter denied the
same, so they filed pet for cert under rule 65 with CA
CA: A denied the petition,9 finding no grave abuse of
discretion amounting to lack or excess of jurisdiction on
the part of the NLRC. It ruled that the issue of whether
or not the petitioners were project employees or regular
employees was factual in nature and, thus, not within
the ambit of a petition for certiorari. Moreover, it
accorded respect and due consideration to the factual
findings of the NLRC, affirming those of the LA, as they
were supported by substantial evidence.
On the substantive issue, the CA explained that “the
repeated and successive rehiring of project employees
do not qualify them as regular employees,as length of
service is not the controlling determinant of the
employment tenure of a project employee, but whether
the employment has been fixed for a specific project or
undertaking, its completion has been determined at the
time of the engagement of the employee.”10
Corollarily, considering that there was no illegal
dismissal, the CA ruled that payment of backwages,
separation pay, damages, and attorney’s fees had no
factual and legal bases. Hence, they could not be
awarded to the petitioners.
Appealed via rule 45 in SC
ISSUE: WON they were dismissed illegally?
HELD: Yes. The petitioners have convincingly
shownthat they should be considered regular
employees and, as such, entitled to full backwages and
other entitlements.
A reading of the 2008 employment contracts,13
denominated as “Project Employment Agreement,”
reveals that there was a stipulated probationary period
of six (6) months from its commencement. It was
provided therein that in the event that they would beable
to comply with the company’s standards and criteria
within such period, they shall be reclassified as project
employees with respect to the remaining period of the
effectivity of the contract.
Under Article 281 of the Labor Code, however, “an
employee who is allowed to work after a probationary
period shall be considered a regular employee.” When
an employer renews a contract of employment after the
lapse of the six–month probationary period, the
employee thereby becomes a regular employee. No
employer is allowed to determine indefinitely the fitness
of its employees.14 While length of time is not the
controlling test for project employment, it is vital in
determining if the employee was hired for a specific
undertaking or tasked to perform functions vital,
necessary and indispensable to the usual business of
trade of the employer.15 Thus, in the earlier case of
Maraguinot, Jr. v. NLRC,16 it was ruled that a project or
work pool employee, who has been: (1) continuously,
as opposed to intermittently, rehired by the same
employer for the same tasks or nature of tasks; and (2)
those tasks are vital, necessary and indispensable to
the usual business or trade of the employer, must be
deemed a regular employee.
The respondents cannot use the alleged expiration of
the employment contracts of the petitioners as a shield
of their illegal acts. The project employment contracts
that the petitioners were made to sign every year since
the start of their employment were only a stratagem to
violate their security of tenure in the company.
Now that it has been clearly established that the
petitioners were regular employees, their termination is
considered illegal for lack of just or authorized causes.
Under Article 279 of the Labor Code, an employee who
is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and other
privileges and to his full back wages, inclusive of
allowances, and to his other benefits or their monetary
equivalent computed from the time his compensation
was withheld from him up to the time of his actual
reinstatement. The law intends the award of back
wages and similar benefits to accumulate past the date
of the LA decision until the dismissed employee is
actually reinstated.
26. Universidad de Sta. Maria vs. Marvin Sambajon
FACTS: Universidad de Sta. Isabel (petitioner) is a non-
stock, non-profit religious educational institution in Naga
City. Petitioner hired Marvin-Julian L. Sambajon, Jr.
(respondent) as a full-time college faculty member with
the rank of Assistant Professor on probationary status,
as evidenced by an Appointment Contract4 dated
November 1, 2002, effective November 1, 2002 up to
March 30, 2003.
After the aforesaid contract expired, petitioner
continued to give teaching loads to respondent who
remained a full-time faculty member of the Department
of Religious Education for the two semesters of school-
year (SY) 2003-2004 (June 1, 2003 to March 31, 2004);
and two semesters of SY 2004-2005 (June 2004 to
March 31, 2005).5
Sometime in June 2003, after respondent completed his
course in Master of Arts in Education, major in
Guidance and Counseling, he submitted the
corresponding Special Order from the Commission on
Higher Education (CHED), together with his credentials
for the said master’s degree, to the Human Resources
Department of petitioner for the purpose of salary
adjustment/increase. Subsequently, respondent’s
salary was increased, as reflected in his pay slips
starting October 1-15, 2004.6 He was likewise re-
ranked from Assistant Professor to Associate
Professor.
In a letter dated October 15, 2004 addressed to the
President of petitioner, Sr. Ma. Asuncion G. Evidente,
D.C., respondent vigorously argued that his salary
increase should be made effective as of June 2003 and
demanded the payment of his salary differential. The
school administration thru Sr. Purita Gatongay, D.C.,
replied by explaining its policy on re-ranking of faculty
members. Respondent insisted on his demand for
retroactive pay. In a letter dated January 10, 2005, Sr.
Evidente reiterated the school policy on re-ranking of
teachers.
The Faculty Manual provides that a permanent teacher
is not entitled to re-ranking oftener than once every two
years. From this it should be obvious that, with all the
more reason, a probationary teacher would not be
entitled to "evaluation," which could result in re-ranking
or "adjustment in salary" oftener than once every two
years. The respondent found the explanation
insufficient and not clear enough. So he pointed a case
of another faculty member and pleaded for his salary
differential.
A dialogue was then held between them. However, on
February 26, 2005, respondent received his letter of
termination.
Thus he filed a complaint for Illegal Dismissal
LA: ruled that there was no just or authorized cause in
the termination of respondent’s probationary
employment. Consequently, petitioner was found liable
for illegal dismissal. All other claims and charges are
DISMISSED for lack of legal and factual basis.
Petitioner appealed to NLRC
NLRC: NLRC rendered its Decision affirming the Labor
Arbiter and holding that respondent had acquired a
permanent status pursuant to Sections 91, 92 and 93 of
the 1992 Manual of Regulations for Private Schools, in
relation to Article 281 of the Labor Code, as amended.
CA: CA sustained the conclusion of the NLRC that
respondent had already acquired permanent status
when he was allowed to continue teaching after the
expiration of his first appointment-contract on March 30,
2003. However, the CA found it necessary to modify the
decision of the NLRC to include the award of back
wages to respondent.
ISSUE: whether respondent’s probationary
employment was validly terminated by petitioner.
HELD: A probationary employee is one who is on trial
by the employer during which the employer determines
whether or not said employee is qualified for permanent
employment. A probationary appointment is made to
afford the employer an opportunity to observe the
fitness of a probationary employee while at work, and to
ascertain whether he will become a proper and efficient
employee.
It is well settled that the employer has the right or is at
liberty to choose who will be hired and who will be
denied employment. In that sense, it is within the
exercise of the right to select his employees that the
employer may set or fix a probationary period within
which the latter may test and observe the conduct of the
former before hiring him permanently.22 The law,
however, regulates the exercise of this prerogative to fix
the period of probationary employment. While there is
no statutory cap on the minimum term of probation, the
law sets a maximum "trial period" during which the
employer may test the fitness and efficiency of the
employee.
The probationary employment of teachers in private
schools is not governed purely by the Labor Code. The
Labor Code is supplemented with respect to the period
of probation by special rules found in the Manual of
Regulations for Private Schools.24 On the matter of
probationary period, Section 92 of the 1992 Manual of
Regulations for Private Schools regulations states:
Section 92. Probationary Period. – Subject in all
instances to compliance with the Department and
school requirements, the probationary period for
academic personnel shall not be more than three (3)
consecutive years of satisfactory service for those in the
elementary and secondary levels, six (6) consecutive
regular semesters of satisfactory service for those in the
tertiary level, and nine (9) consecutive trimesters of
satisfactory service for those in the tertiary level where
collegiate courses are offered on a trimester basis.
(Emphasis supplied.)
Thus, it is the Manual of Regulations for Private
Schools, and not the Labor Code, that determines
whether or not a faculty member in an educational
institution has attained regular or permanent status.25
Section 9326 of the 1992 Manual of Regulations for
Private Schools provides that full-time teachers who
have satisfactorily completed their probationary period
shall be considered regular or permanent.
Notwithstanding the limited engagement of
probationary employees, they are entitled to
constitutional protection of security of tenure during and
before the end of the probationary period.41 The
services of an employee who has been engaged on
probationary basis may be terminated for any of the
following: (a) a just or (b) an authorized cause; and (c)
when he fails to qualify as a regular employee in
accordance with reasonable standards prescribed by
the employer
Thus, while no vested right to a permanent appointment
had as yet accrued in favor of respondent since he had
not completed the prerequisite three-year period (six
consecutive semesters) necessary for the acquisition of
permanent status as required by the Manual of
Regulations for Private Schools43 -- which has the force
of law44 -- he enjoys a limited tenure. During the said
probationary period, he cannot be terminated except for
just or authorized causes, or if he fails to qualify in
accordance with reasonable standards prescribed by
petitioner for the acquisition of permanent status of its
teaching personnel.

No just or authorized cause was given by petitioner.

Prior to this, respondent had consistently achieved
above average rating based on evaluation by
petitioner’s officials and students. He had also been
promoted to the rank of Associate Professor after
finishing his master’s degree course on his third
semester of teaching. Clearly, respondent’s termination
after five semesters of satisfactory service was illegal.
Respondent therefore is entitled to continue his three-
year probationary period,

WHEREFORE, the petition for review on certiorari is

PARTLY GRANTED. The Decision dated March 25,
2011 of the Court of Appeals in CA-G.R. SP Nos.
108103 & 108168 is hereby MODIFIED. Petitioner
Universidad de Sta. Isabel is hereby DIRECTED to PAY
respondent Marvin-Julian L. Sambajon, Jr. back wages
corresponding to his full monthly salaries for one
semester (1st semester of SY 2005-2006) and pro-rated
13th month pay.