labor cases ass. set 1.pdf

G.R. No. 93699 September 10, 1993

RAMON PRIETO, PACIFICO CANILLO, and WILFREDO AZUELA, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION, AR and SONS INTERNATIONAL DEVELOPMENT CORP., SAUDI SERVICES and OPERATING COMPANY, LTD., and SAUDI ARABIAN MORRISON, respondents.

Capuyan & Quimpo Law Office for petitioners.

Carag, Caballes, Jamora, Rodriguez & Somera Law Offices for private respondent.

CRUZ, J.:

The petitioners seek modification of the decision of the National Labor Relations Commission dated May 31, 1990, reversing the decision of the Philippine Overseas Employment Administration dated July 24, 1989. It is averred that the public respondent committed grave abuse of discretion in ruling in favor of the private respondents, contrary to the evidence on record.

This case arose from a complaint filed by Ramon Prieto, Pacifico Canillo and Wilfredo Azuela against AR and Sons International Development Corporation, Saudi Services and Operations Co. Ltd., and Saudi Arabian Morrison. 1 Their claim was for non-payment of wages, illegal dismissal, illegal exaction of placement fees, illegal imposition of performance bond, substitution of contract and deployment of workers to an unaccredited principal.

The complainants alleged they were recruited by AR and Sons International Development Corporation (AR and Sons) for employment for a period of 24 months with Saudi Services and Operating Co., Ltd. (SSOC) in Saudi Arabia. The corresponding Agency Worker Agreements, which were duly approved by the POEA, provided for their respective positions and salaries as follows:

Name Position Salary (per month in

US Dollars)

Prieto Mechanic A/C $370.00 Azuela Mechanic A/C $370.00 Canillo Clerk $420.00

Later, however, taking advantage of their need for employment, the respondent placement agency coerced them into signing another employment contract with Saudi Arabia Morrison (SAM) without the knowledge and approval of the POEA. The second

contract gave all three of them the lower positions of assistant cook with a salary of only SR625.00 per month for a period of three years. 2

The complainants said that when they reached Jeddah, Saudi Arabia, in November 1987, they were asked to sign still another employment contract by a certain Muhammad Abbas, a representative of SAM, which would further lower their salaries to SR250.00 a month. When they refused, they were not assigned any work but were confined in a small room in a villa and given spoiled food for their sustenance. On December 22, 1987, they were summarily dismissed and repatriated to the Philippines. 3

The respondents denied the charges and said that the complainants entered into separate uniform Agency Worker Agreements where it was stipulated that they would be employed by SSOC for 24 months upon departure from the Philippines. When the petitioners arrived in Jeddah, it was discovered that Prieto and Azuela were not qualified as mechanics and that Canillo was not qualified as clerk, so all three of them were rejected. The complainants then requested SSOC to help them secure employment as assistant cooks with SAM, which at that time was also a foreign principal of AR and Sons. Taking pity on them, SSOC referred them to the latter agency but they also failed to pass the trade tests for assistant cooks. It was for this reason that they were finally repatriated to the Philippines at the expense of the latter agency.

After considering the evidence and arguments of the parties, the POEA held in favor of the complainants. The dispositive portion of its decision decreed as follows:

WHEREFORE, in the light of the foregoing, judgment is hereby rendered ordering AR & SONS INTERNATIONAL DEVELOPMENT CORPORATION and SAUDI ARABIAN MORRISON to pay jointly and severally complainants Ramon Prieto, Pacifico Canillo and Wilfredo Azuela the following amounts to be paid in Philippine Currency at the prevailing rate of exchange at the rate of actual payment:

1. for Ramon Prieto

a) SIX HUNDRED SIXTEEN US DOLLARS AND 67/100 (US$616.67) representing his salaries from November 2, 1987 to December 22, 1987;

b) EIGHT THOUSAND TWO HUNDRED SIXTY THREE US DOLLARS AND 33/100 (US$8,263.33) representing his salaries for the unexpired portion of his employment contract.

2. for Pacifico Canillo

a) SIX HUNDRED TEN US DOLLARS (US$610.00) representing his salaries from November 12, 1987 to December 22, 1987;

b) NINE THOUSAND FOUR HUNDRED SEVENTY US DOLLARS (US$9,470.00) representing his salaries for the unexpired portion of his employment contract.

3. for Wilfredo Azuela

a) SIX HUNDRED SIXTEEN US DOLLARS AND 67/100 (US$616.67) representing his salaries from November 2, 1987 to December 22, 1987;

b) EIGHT THOUSAND TWO HUNDRED SIXTY THREE US DOLLARS AND 33/100 (US$8,263.33) representing his salaries for the unexpired portion of his employment contract; and

4. FIVE THOUSAND PESOS (P5,000.00) as and for attorney's fees.

SO ORDERED.

The decision was reversed by the NLRC, which ordered the dismissal of the complaint. The NLRC found that the complainants had misrepresented themselves as mechanics and cooks when they were not qualified for these positions and so had only themselves to blame if they were subsequently rejected by a foreign employer.

The factual findings of administrative bodies are as a rule binding on this Court, but this is true only when they do not come under the established exceptions. One of these is where the findings of the POEA and the NLRC are contrary to each other, 4 as in this case, and there is a necessity to determine which of them should be preferred as more conformable to the established facts.

A study of the two decisions, together with the evidence and the arguments adduced by the parties, inclines the Court in favor of the POEA.

We reject the respondents' argument that the petitioners' services were terminated because they were not qualified either as mechanics or as assistant cooks. It is presumed that before their deployment, the petitioners were subjected to the trade tests required by law to be conducted by the recruiting agency to insure employment of only technically qualified workers for the foreign principal. There was no misrepresentation on the part of the petitioners. They had applied as A/C mechanics and clerk, and we may assume that the trade tests conducted on them were for these positions and not for the position of assistant cook. If they fell short of the employer's expectations, the fault

lies not with the petitioners but with the recruiting agency for deploying them even if they did not possess the skills necessary for the positions they were seeking.

As we said in one case: 5

. . . Moreover, before the private respondents were hired they were lengthily interviewed by a representative of the foreign employer, Modern System. They must have passed, otherwise, they would not have been hired. They must also be subjected to a trade test because this is one of the requirements for employment abroad. Thirdly, the private respondents were not given sufficient time to prove their fitness for the positions they were hired. Two weeks for this purpose is not enough.

The private respondents point to the petitioners' allegation in their complaint that they were mere assistant cooks and argue that this belies their representation that they did not apply for these positions. The argument has no merit. The petitioners were not assisted by lawyers when they filed their complaint and must have had in mind the positions stipulated in the second contract. In the amended complaint, this statement was rectified. At any rate, the slight error must not be taken against the petitioners. As we held in Cuadra v. NLRC, 6 "our overseas workers are mostly ordinary laborers not conversant with legal principles and with the manner they can assert and protect rights. They have no compatriot lawyers to consult and no labor unions to support them in the foreign land. . . . The claims of our overseas workers should therefore be received with sympathy and allowed, if warranted, conformably to the constitutional mandate for the protection of the working class."

We find no basis either for the conclusion of the NLRC that there was no employer-employee relationship between the parties. The record shows that the petitioners became employees of Saudi Services and Operating Company, Ltd., and later of Saudi Arabian Morrison, both entities being represented by AR and Sons International Development Corporation, which admitted in its Comment that the petitioners were "hired and deployed abroad . . ." This relationship is even more firmly supported by the Agency Worker Agreements between the petitioners and AR and Sons acting for SSOC which were approved by the POEA under Accreditation Certificate No 8181, 7 and by the second contract under which the petitioners were deployed to SAM, its other principal, by AR and Sons. 8

Article 279 of the Labor Code provides:

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 was unjustly dismissed from work shall be entitled to reinstatement without lose of seniority rights and to his backwages computed from the time his compensation was withheld from him up to the time of reinstatement.

Where the employer-employee relationship has been established, the burden of proof in termination cases lies with the employer. 9 This burden was not discharged by the private respondents. It is clear form the record that the petitioners were hired as mechanics and clerk (or as assistant cooks under the second contract) after presumably having passed the corresponding trade tests conducted by the recruiting agency prior to their deployment. If AR and Sons felt they were not qualified for these positions, it should have rejected their applications outright instead of accepting their recruitment fees just the same and assuring them that their employment had already been approved by the foreign principal. It was the fault of AR and Sons for holding the petitioners to its foreign principal as qualified when they were found later to be deficient. As a result of its negligence, if not its deliberate misrepresentation, the petitioners found themselves stranded in a foreign land, without the employment and income that they hoped would give them a better life.

The principle of "no work, no pay" does not apply in this case for, as correctly pointed out by POEA, the fact that the complainants had not worked at the jobsite was not of their own doing. If they were not able to work at all, it was because they refused to sign the third contract providing for another lowering of their salaries in violation of their first agreement as approved by the POEA. They had a right to insist on the higher salaries agreed upon in the original contract and to reject the subsequent impositions of SAM, which obviously thought the petitioners would have to accept because they had no choice.

Rule V, Book I of the Omnibus Rules Implementing the Labor Code defines the duties and obligations of a duly licensed placement and recruitment agency. Section 2(e) requires a private employment agency to assume all responsibilities for the implementation of the contract of employment of an overseas worker. Section 10(a) (2) provides that a private employment agency can be sued jointly and severally with the principal or foreign-based employer for any violation of the recruitment agreement or the contract of employment.

Book II, Rule II, Section 1(f) (3) of the new Rules and Regulations Governing Overseas Employment promulgated by the Governing Board of the POEA substantially reiterates Rule II of Book II, Section 1(d) (3) of 1985 POEA Rules, which governs this case. It provides that a private employment agency shall assume joint and solidary liability with the employer for all claims and liabilities that may arise in connection with the implementation of the contracts including but not limited to payment of wages, health and disability compensation and repatriation. There is no doubt that, under the facts established in this case, AR and Sons is jointly and solidarily liable with overseas employer SAM for the claims of the petitioners.

The Court is not unaware of the many abuses suffered by our overseas workers in the foreign land where they have ventured, usually with heavy hearts, in pursuit of a more fulfilling future. Breach of contract, maltreatment, rape, insufficient nourishment, sub-human lodgings, insults and other forms of debasement, are only a few of the inhumane acts to which they are subjected by their foreign employers, who probably feel they can

do as they please in their own country. While these workers may indeed have relatively little defense against exploitation while they are abroad, that disadvantage must not continue to burden them when they return to their own territory to voice their muted complaint. There is no reason why, in their very own land, the protection of our own laws cannot be extended to them in full measure for the redress of their grievances.

WHEREFORE, the challenged decision of the NLRC dated May 31, 1980 is REVERSED and SET ASIDE. The POEA decision dated July 24, 1989 is REINSTATED, with costs against the private respondents.

SO ORDERED.

G.R. No. 106027 July 25, 1994

BPI CREDIT CORPORATION, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and BENJAMIN JOVELLANOS, respondents.

Sycip, Salazar, Hernandez & Gatmaitan for petitioner.

Severo S. Jovellanos for private respondent.

PUNO, J.:

The most frequently assaulted right of workers is their right to security of tenure. The Constitution shields this right against unjustified attacks. The petition at bench represents another attempt to negate this constitutional right of workers to security of tenure. It cannot succeed.

The records show that private respondent Benjamin Jovellanos is the Marketing Assistant of petitioner BPI Family Bank, Dagupan City branch. Ricardo Torio worked as Credit Investigator Appraiser in the same bank.

On July 8, 1987, a certain Alex Racimo executed an Affidavit linking Jovellanos and Torio to certain anomalies, viz:

(1) That I obtained a loan from the BPI Family Bank, Dagupan City in the amount of P200,000.00;

(2) That in the processing of my application for this loan I had dealt with RIC TORIO, an old acquaintance;

(3) That in the beginning when I was still applying for a loan I was made to believe by RIC TORIO that I will not pay any charges except the application fee in the sum of P500.00, which still be refunded to me upon release of my approved loan;

(4) That when my loan was released the above named person approached me and demanded from me something which they termed it for the boys and he mentioned the name of BEN JOVELLANOS a co-employee at the BPI Credit Corporation, Dagupan City;

(5) That out of gratitude I was handling to him the sum of P1,000.00 but he ignored it and instead he told me that he ought to charge five (5%) of the

total amount of the approved loan, upon release, but considering that we were friends, 2% would be enough;

(6) That I tried to bargain with him that he accepts the P1,000.00 and just as soon as I sell my property in Dagupan, I will give him the remaining P3,000.00, but he declined and turned his back towards me;

(7) That I found it very strange because instead of being refunded the amount of P500.00 which I paid as application fee, said person is collecting from me a certain percentage of my approved loan; . . . .

Upon receipt of the affidavit, petitioner confronted respondent Jovellanos on August 12, 1987. According to the petition, Gaspar Antonio de los Santos, AVP of petitioner ". . . brought up the subject as he and Jovellanos were on their way homefrom a staff presentation at about 9:45 p.m." 1 It is also stated that Santos ". . . confronted Jovellanos about the contents of the affidavit without naming Racimo as its author." 2 Respondent Jovellanos was also instructed to report to the head office of the petitioner on August 17, 1987.

On August 17, 1987, petitioner alleged that de los Santos "once more brought up the matter of the reported irregularities with Jovallanos." 3 On this occasion, according to petitioner, de los Santos "named Racimo and read portions of his (Racimo's) affidavit." 4 Thereafter, de los Santos served the notice of preventive suspension on Jovellanos signed by Socorro Lantin, another AVP of petitioner. 5 The notice reads:

Please be advised that pending investigation of the reported irregular transactions pertaining to Real Estate Mortgage Loans of which you are CI-Appraiser with the end in view of ascertaining degree of responsibility and/or extent of violation of Bank policies and regulations as well as possible losses to the Bank, you are hereby relieved of your duties and placed under preventive suspension effective immediately.

In the meantime, you are free to submit whatever explanation/statement you may have about the incident or any information that could held in the prove of the reported anomally.

Respondent Jovellanos denied the charge against him. He said he did not know Racimo.

On August 20, 1987, respondent Jovellanos wrote a letter to Lantin seeking to lift his preventive suspension. Attached to the letter was his Affidavit which reads:

That I was made aware of the affidavit executed by Alex Racimo of Binalonan, Pangasinan before the Clerk of Court of the Regional Trial Court, Urdaneta, Pangasinan, which contained among others, Alex Racimo's statement.

(a) that Ric Torio asked Alex Racimo some money in return to the approval of his loan with BPI Credit Corporation;

(b) That in asking the money, Ric Torio represented to Alex Racimo that I was the one who instructed Ric Torio to make the demand;

That I never instructed Ric Torio to ask for money from Alex Racimo nor I ever connived with him to ask or demand for money; and in fact and in truth I did not know that Ric Torio asked for money from Alex Racimo;

That if I had known that Ric Torio used my name, I would not have consented to it;

That I have not engaged myself in any irregular or anomalous transaction in relation to my duties and responsibilities as marketing assistant with BPI Credit Corporation.

Likewise attached was the Sworn Clarificatory Statement of Racimo, viz:

That I previously executed an affidavit before the Clerk of Court, Regional Trial Court, Urdaneta, Pangasinan;

That in said affidavit, I stated that Ric Torio upon the instruction of Ben Jovellanos asked me money in return to the approval of my loan with BPI Credit Corporation;

That in fairness to Ben Jovellanos, I should like to clarify my statement as follows:

(a) That Ben Jovellanos never personally approached me or asked me for money;

(b) That I did not have any basis to tell whether Ben Jovellanos really instructed or convinced (sic) with Ric Torio in asking money; hence Ben Jovellanos might have just been used by Ric Torio in asking money.

Respondent Jovellanos bewailed the failure of petitioner to give the details of the "reported irregular transactions to real estate mortgage loans." 6

Respondent's preventive suspension was not lifted. Instead, it was extended as petitioner formed a committee 7 to investigate the reported irregularities. According to the petition, the result of the investigation is as follows: 8

xxx xxx xxx

7. The results of the investigation, which were affirmed under oath by the head of the audit/investigating team, revealed the following: On the solicitation of a percentage of the approved loans, the team visited ten (10) clients of BPI Credit other than Mr. Alex Racimo to verify whether the employees were demanding for a percentage of the approved loans. The team was able to talk to seven (7) clients with the following results:

(a) Five (5) clients said that the employees did not ask them for any consideration for the approval of their loans.

(b) Two (2) clients said that they were approached by the employees for certain considerations. They were, however, hesitant to give their written statements, probably afraid that the employees would avenge them. One of them, Imelda Ico, said that Torio and Jovellanos asked her for a "blow out" on two separate occasions; the first was when she filed her loan application, and later, when her loan was approved. She, thus, tendered two "blow outs" which Torio and Jovellanos, together with ten to thirteen of their friends attended. The client also informed the team that before she applied for a loan at BPI Credit, she was forewarned by her friends of certain employees who reportedly demand a percentage of the approved loan. The other, Angelita Reminguer, said that Jovellanos asked for five percent of the approved loan (P800,000.00) while the second release of her construction loan was being processed. She complained to SAM PS Coquia of BPI Dagupan Branch who advised her not to give in to the demand. SAM PS Coquia relayed the client's complaint to the Manager of the Dagupan Branch and the Business Center Head.

8. With respect to the overvaluation of properties, twelve (12) properties previously appraised, by Torio were re-appraised by the appraiser of BPI Dagupan Business Center. Torio's appraisal of two of these properties varied considerably from the figures reached when these were re-appraised. The first property which was owned by Pedro/Victoria Revote and subject of a real estate mortgage as security for a P100,000.00 loan, was appraised by Torio on 3 July 1986 as follows:

Land: 287 sq. m. @ 400/sq.m. P114,800,00 Bungalow: 130.35 sq.m. @ 2,300/ sq. m. 299,000.00 Total: Appraised Value P413,800,00

Torio did not subject the property to depreciation since the "Estimated Remaining Economic Life based on Present Physical condition" equaled the "Normal Economic Life for Type of Building." The bungalow, moreover, was reported to be well-maintained.

9. On the other hand, Jorge Monje, Appraiser of BPI Dagupan Branch submitted a markedly different appraisal of the property on 4 September 1987. He depreciated the bungalow based on the estimated remaining life of seven years:

Land: 287 sq. m. @ 400/sq . m. P114,800.00

Improvement:

10.35 sq. m. @ 2,300/sq.m. 299,806.00

Less: 72% depreciation (based on estimated remaining life of 7 years) 215,859.00 83,946.00

Total Appraised value P198,746.00

Monje also found that the improvement, which was built in 1969, was not properly maintained. Mr. John Cornel, an appraiser of Dagupan Business Center who accompanied Monje during the inspection, appraised the property at P222,729.00. The difference of P23,983.00 from the appraisal of Jorge Monje was due to the lower depreciation rated adopted by Cornel. Compared to the appraisals made by Monje and Cornel, Torio appraised the property at twice its value. Moreover, the fact that the property was foreclosed by the Rural Bank of Malsiqui on 17 September 1984 and redeemed by the borrowers on 1 October 1984, was not reflected on the Loan Offering Memo addressed to the Credit Committee. This Loan Offering Memo was signed by Marketing Assistant Benjamin Jovellanos. That he signed the same was never denied by him. He likewise never bothered to explain why he, knowing that the collateral had a history of foreclosure and defaults, omitted mentioning this important fact in the Loan Offering Memo.

Respondent Jovellanos was then served a Notice of Termination effective November 25, 1987 on the ground of wilfull breach of trust. Jovellanos countered by filing a complaint for illegal dismissal with damages. On September 5, 1990, the Labor Arbiter ruled in favor of Respondent Jovellanos, thus:

Wherefore, consistent with the foregoing tenor, judgment is hereby rendered, to wit:

1. As to complainant Benjamin Jovellanos, respondent is guilty of illegal dismissal, accordingly, respondent BPI Credit Corporation is ordered, as follows:

a) To reinstate immediately complainant Benjamin Jovellanos to his former position or equivalent thereto without loss of seniority rights or at the option of respondent BPI CREDIT CORPORATION, payroll reinstatement;

b) To pay complainant Benjamin Jovellanos two (2) years backwages without qualification or deduction in the amount of SEVENTY SIX THOUSAND AND EIGHT HUNDRED PESOS (P76,800.00); and

c) To pay attorney's fees ten percent (10%) of the judgment award in the amount of P7,680.00.

Petitioner appealed to the respondent NLRC. On December 20, 1991, the Third Division of the respondent NLRC, affirmed the ruling of the Labor Arbiter except that it deleted the award of attorney's fees in favor of respondent Jovellanos. 9Petitioner's motion for reconsideration was denied by the respondent commission on April 30, 1992. 10

In this petition for certiorari, petitioner argues:

ARGUMENTS

I

THE HONORABLE COMMISSION COMMITTED A GRAVE ABUSE DISCRETION IN FINDING THAT THERE WAS NO JUST CAUSE FOR THE DISMISSAL OF PRIVATE RESPONDENT.

II

THE HONORABLE COMMISSION COMMITTED A GROSS MISAPPRECIATION OF THE ATTENDANT FACTS AND OF THE APPLICABLE LAW IN FINDING THAT PETITIONER DID NOT OBSERVE DUE PROCESS BEFORE TERMINATING PRIVATE RESPONDENT'S SERVICES.

We find no merit in the petition.

Petitioner's submissions ignore the prosecution accorded by our Constitution to the worker's precious right to security of tenure. The enthronement of the worker's right to security of tenure in our fundamental law was not achieved overnight. For all its liberality towards labor, our 1935 Constitution did not elevate the right as a constitutional right. For a long time, the worker's security of tenure had only the protective mantle of statutes and their interpretative rules and regulations. It was an uncertain protection that sometimes yielded to the political permutations of the times. It took labor nearly four decades of sweat and tears to persuade our people thru their leaders, to exalt the worker's right to security of tenure as a sacrosanct constitutional right. It was Article II, section 2 of our 1973 Constitution that declared as a policy that the State shall assure the right of workers to security of tenure. The 1987 Constitution is even more solicitous of the welfare of labor. Section 3 of its Article XIII mandates that the State shall afford full protection to labor and declares that all workers shall be entitled to security of tenure. Among the enunciated State policies are the promotion of social justice 11 and a just and dynamic social order. 12 In contrast, the prerogative of management to dismiss a worker, as an aspect of property right, has never been endowed with a constitutional status.

The unequivocal constitutional declaration that all workers shall be entitled to security of tenure spurred our lawmakers to strengthen the protective walls around this hard earned right. The right was protected from undue infringement both by our substantive and procedural laws. Thus, the causes for dismissing employees were more defined and restricted; 13 on the other hand, the procedure of termination was also more clearly delineated. 14 These substantive and procedural laws must be strictly complied with before a worker can be dismissed from his employment.

Prescinding from these premises, we affirm the ruling of the NLRC that private respondent was dismissed; in violation of his right to procedural due process. Article 277(b) of the Labor Code provides the procedure for terminating a worker, viz:

xxx xxx xxx

(b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the

National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. The Secretary of the Department of a Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima faciefinding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off.

In the case at bench, petitioner did not give fair notice to private respondent of the charges against him. According to the petitioner, on August 12, 1987, its Assistant Vice President de los Santos ". . . brought up the subject as he and Jovellanoswere on their way home from a staff presentation at about 9:45 p.m." He also ". . . confronted Jovellanos about the contents of the affidavit without naming g Racimo as its author." Such casualness and incompleteness of information cannot satisfy the requirements of due process. Neither could the notice of preventive suspension served on private respondent on August 17, 1987 have any curative effect. A reading of said notice will show that it required private respondent to explain his participation in certain ". . . reported irregular transactions pertaining to Real Estate Mortgage Loans of which you are CI-Appraiser . . ." The lack of specificity or the generality of the charge speaks for itself. Worse still, petitioner thereafter conducted its own ex parte investigation without the participation of the private respondent. It interviewed a certain Imelda Ico who revealed that Jovellanos and Torio asked her for a "blow out" when she filed her loan application, and later when her loan was approved. Another woman, Angelita Reminguer, also declared that Jovellanos asked for five percent (5%) of her approved loan. The two, however, refused to give any sworn statement. Private respondent who was not aware of the investigation was never given an opportunity to disprove their accusation. Yet, primarily on the basis of the damaging statements of Ico and Reminguer, petitioner dismissed private respondent effective November 25, 1987 on the ground of willful breach of trust. The opportunity of private respondent to defend himself was thus more chimerical than real.

We also affirm the ruling of the NLRC that the evidence on record does not justify the dismissal of the private respondent. Alex Racimo retracted his affidavit implicating private respondent. The charges made by Imelda Ico and Angelita Reminguer hardly had any evidentiary value. As ruled by the Labor Arbiter and the NLRC:

As gleaned from the record, other charges made against complainant Jovellanos accusing him of soliciting percentage fee by a certain Angelita Reminguer and Imelda Ico could not also be given credit. Firstly, because it is an unsworn statement; Secondly, being mere allegation unsupportive (sic) by corroborative evidence; Thirdly, complainant Jovellanos was not aware of such accusation during his confrontation with the assistant Vice-President of BPI Credit, Gaspar Centino de los Santos. Neither was it specified in his suspension order leading to his termination. It is pertinent further, to note the fact that the foreclosure and redemption of a real

property not having been reflected on the loan offering memo addressed to the Credit Committee could have been done intentionally by complainant Jovellanos. For such omission, We believe that complainant could not be solely responsible, since the memo was also signed by the Business Center Head Francisco Nery and Assistant Vice-President Bienvenido Manangun who are higher in rank than complainant Jovellanos being merely marketing assistant. This omission therefore, should not be taken against him and charge of cooperating or lending assistance to the Credit Investigator in the overvaluation of the appraisal of the property of a client of the Bank.

All these notwithstanding, petitioner insists that on ground of loss of trust and confidence it can dismiss private respondent considering the nature of his position as Marketing Assistant. It posits the thesis that the dismissal can be justified as long as it has "some basis" since the position of private respondent calls for trust. Time does not stand still and petitioner ought to know that this thesis has long been entombed by our Constitution which has elevated the security of tenure of our workers to a constitutional right. We hold that this right cannot be eroded, let alone be forfeited except upon a clear and convincing showing of a just and lawful cause. In the case at bench, it is not disputed that private respondent has served the petitioner from April 23, 1976 up to September 18, 1987 starting as credit investigator until he rose to the position of Marketing Assistant. His eleven (11) years of service with the petitioner has not been tainted with any kind of dishonesty. We cannot allow petitioner to disregard this long length of faithful service on the basis of evidence that is hearsay, uncorroborated, and untrustworthy, otherwise, the tenurial right of our workers would have but a scrap value.

IN VIEW WHEREOF, the petition is DISMISSED, there being no showing of grave abuse of discretion committed by the public respondent in its Decision of December 20, 1991. Costs against petitioner.

SO ORDERED.

G.R. No. 82511 March 3, 1992

GLOBE-MACKAY CABLE AND RADIO CORPORATION, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and IMELDA SALAZAR, respondents.

Castillo, Laman, Tan & Pantaleon for petitioner.

Gerardo S. Alansalon for private respondent.

ROMERO, J.:

For private respondent Imelda L. Salazar, it would seem that her close association with Delfin Saldivar would mean the loss of her job. In May 1982, private respondent was employed by Globe-Mackay Cable and Radio Corporation (GMCR) as general systems analyst. Also employed by petitioner as manager for technical operations' support was Delfin Saldivar with whom private respondent was allegedly very close.

Sometime in 1984, petitioner GMCR, prompted by reports that company equipment and spare parts worth thousands of dollars under the custody of Saldivar were missing, caused the investigation of the latter's activities. The report dated September 25, 1984 prepared by the company's internal auditor, Mr. Agustin Maramara, indicated that Saldivar had entered into a partnership styled Concave Commercial and Industrial Company with Richard A. Yambao, owner and manager of Elecon Engineering Services (Elecon), a supplier of petitioner often recommended by Saldivar. The report also disclosed that Saldivar had taken petitioner's missing Fedders airconditioning unit for his own personal use without authorization and also connived with Yambao to defraud petitioner of its property. The airconditioner was recovered only after petitioner GMCR filed an action for replevin against Saldivar. 1

It likewise appeared in the course of Maramara's investigation that Imelda Salazar violated company reglations by involving herself in transactions conflicting with the company's interests. Evidence showed that she signed as a witness to the articles of partnership between Yambao and Saldivar. It also appeared that she had full knowledge of the loss and whereabouts of the Fedders airconditioner but failed to inform her employer.

Consequently, in a letter dated October 8, 1984, petitioner company placed private respondent Salazar under preventive suspension for one (1) month, effective October 9, 1984, thus giving her thirty (30) days within which to, explain her side. But instead of submitting an explanations three (3) days later or on October 12, 1984 private respondent filed a complaint against petitioner for illegal suspension, which she subsequently amended to include illegal dismissal, vacation and sick leave benefits, 13th month pay and damages, after petitioner notified her in writing that effective November 8, 1984, she was considered dismissed "in view of (her) inability to refute and disprove these findings. 2

After due hearing, the Labor Arbiter in a decision dated July 16, 1985, ordered petitioner company to reinstate private respondent to her former or equivalent position and to pay her full backwages and other benefits she would have received were it not for the illegal dismissal. Petitioner was also ordered to pay private respondent moral damages of P50,000.00. 3

On appeal, public respondent National Labor Relations, Commission in the questioned resolution dated December 29, 1987 affirmed the aforesaid decision with respect to the

reinstatement of private respondent but limited the backwages to a period of two (2) years and deleted the award for moral damages. 4

Hence, this petition assailing the Labor Tribunal for having committed grave abuse of discretion in holding that the suspension and subsequent dismissal of private respondent were illegal and in ordering her reinstatement with two (2) years' backwages.

On the matter of preventive suspension, we find for petitioner GMCR.

The inestigative findings of Mr. Maramara, which pointed to Delfin Saldivar's acts in conflict with his position as technical operations manager, necessitated immediate and decisive action on any employee closely, associated with Saldivar. The suspension of Salazar was further impelled by th.e discovery of the missing Fedders airconditioning unit inside the apartment private respondent shared with Saldivar. Under such circumstances, preventive suspension was the proper remedial recourse available to the company pending Salazar's investigation. By itself, preventive suspension does, not signify that the company has adjudged the employee guilty of the charges she was asked to answer and explain. Such disciplinary measure is resorted to for the protection of the company's property pending investigation any alleged malfeasance or misfeasance committed by the employee. 5

Thus, it is not correct to conclude that petitioner GMCR had violated Salazar's right to due process when she was promptly suspended. If at all, the fault, lay with private respondent when she ignored petitioner's memorandum of October 8, 1984 "giving her ample opportunity to present (her) side to the Management." Instead, she went directly to the Labor Department and filed her complaint for illegal suspension without giving her employer a chance to evaluate her side of the controversy.

But while we agree with the propriety of Salazar's preventive suspension, we hold that her eventual separation from employment was not for cause.

What is the remedy in law to rectify an unlawful dismissal so as to "make whole" the victim who has not merely lost her job which, under settled Jurisprudence, is a property right of which a person is not to be deprived without due process, but also the compensation that should have accrued to her during the period when she was unemployed?

Art. 279 of the Labor Code, as amended, provides:

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. 6 (Emphasis supplied)

Corollary thereto are the following provisions of the Implementing Rules and Regulations of the Labor Code:

Sec. 2. Security of Tenure. In cases of regular employments, the employer shall not terminate the services of an employee except for a just cause as provided in the Labor Code or when authorized by existing laws.

Sec. 3. Reinstatement. An employee who is unjustly dismissed from work shall by entitled to reinstatement without loss of seniority rights and to backwages." 7 (Emphasis supplied)

Before proceeding any furthers, it needs must be recalled that the present Constitution has gone further than the 1973 Charter in guaranteeing vital social and economic rights to marginalized groups of society, including labor. Given the pro-poor orientation of several articulate Commissioners of the Constitutional Commission of 1986, it was not surprising that a whole new Article emerged on Social Justice and Human Rights designed, among other things, to "protect and enhance the right of all the people to human dignity, reduce social, economic and political inequalities, and remove cultural inequities by equitably diffusing wealth and political power for the common good." 8 Proof of the priority accorded to labor is that it leads the other areas of concern in the Article on Social Justice, viz., Labor ranks ahead of such topics as Agrarian and Natural Resources Reform, Urban Land Roform and Housing, Health, Women, Role and Rights of Poople's Organizations and Human Rights. 9

The opening paragraphs on Labor states

The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled tosecurity of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits is may be provided by law. 10 (Emphasis supplied)

Compare this with the sole.provision on Labor in the 1973 Constitution under the Article an Declaration of Principles and State Policies that 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

employers. The State shall ensure the rights of workers to self-organization, collective baegaining, security of tenure, and just and humane conditions of work. The State may provide for compulsory arbitration. 11

To be sure, both Charters recognize "security of tenure" as one of the rights of labor which the State is mandated to protect. But there is no gainsaying the fact that the intent of the framers of the present Constitution was to give primacy to the rights of labor and afford the sector "full protection," at least greater protection than heretofore accorded them, regardless of the geographical location of the workers and whether they are organized or not.

It was then CONCOM Commissioner, now Justice Hilario G. Davide, Jr., who substantially contributed to the present formulation of the protection to labor provision and proposed that the same be incorporated in the Article on Social Justice and not just in the Article on Declaration of Principles and State Policies "in the light of the special importance that we are giving now to social justice and the necessity of emphasizing the scope and role of social justice in national development."12

If we have taken pains to delve into the background of the labor provisions in our Constitution and the Labor Code, it is but to stress that the right of an employee not to be dismissed from his job except for a just or authorized cause provided by law has assumed greater importance under the 1987 Constitution with the singular prominence labor enjoys under the article on Social Justice. And this transcendent policy has been translated into law in the Labor Code. Under its terms, where a case of unlawful or unauthorized dismissal has been proved by the aggrieved employee, or on the other hand, the employer whose duty it is to prove the lawfulness or justness of his act of dismissal has failed to do so, then the remedies provided in Article 279 should find, application. Consonant with this liberalized stance vis-a-vis labor, the legislature even went further by enacting Republic Act No. 6715 which took effect on March 2, 1989 that amended said Article to remove any possible ambiguity that jurisprudence may have generated which watered down the constitutional intent to grant to labor "full protection." 13

To go back to the instant case, there being no evidence to show an authorized, much less a legal, cause for the dismissal of private respondent, she had every right, not only to be entitled to reinstatement, but ay well, to full backwages." 14

The intendment of the law in prescribing the twin remedies of reinstatement and payment of backwages is, in the former, to restore the dismissed employee to her status before she lost her job, for the dictionary meaning of the word "reinstate" is "to restore to a state, conditione positions etc. from which one had been removed" 15 and in the latter, to give her back the income lost during the period of unemployment. Both remedies, looking to the past, would perforce make her "whole."

Sadly, the avowed intent of the law has at times been thwarted when reinstatement has not been forthcoming and the hapless dismissed employee finds himself on the outside looking in.

Over time, the following reasons have been advanced by the Court for denying reinstatement under the facts of the case and the law applicable thereto; that reinstatement can no longer be effected in view of the long passage of time (22 years of litigation) or because of the realities of the situation; 16 or that it would be "inimical to the employer's interest; " 17 or that reinstatement may no longer be feasible; 18 or, that it will not serve the best interests of the parties involved; 19 or that the company would be prejudiced by the workers' continued employment; 20 or that it will not serve any prudent purpose as when supervening facts have transpired which make execution on that score unjust or inequitable 21 or, to an increasing extent, due to the resultant atmosphere of "antipathy and antagonism" or "strained relations" or "irretrievable estrangement" between the employer and the employee. 22

In lieu of reinstatement, the Court has variously ordered the payment of backwages and separation pay 23 or solely separation pay. 24

In the case at bar, the law is on the side of private respondent. In the first place the wording of the Labor Code is clear and unambiguous: "An employee who is unjustly dismissed from work shall be entitled to reinstatement. . . . and to his full backwages. . . ." 25 Under the principlesof statutory construction, if a statute is clears plain and free from ambiguity, it must be given its literal meaning and applied without attempted interpretation. This plain-meaning rule or verba legis derived from the maxim index animi sermo est (speech is the index of intention) rests on the valid presumption that the words employed by, the legislature in a statute correctly express its intent or will and preclude the court from construing it differently. 26 The legislature is presumed to know the meaning of the words, to:have used words advisedly, and to have expressed its intent by the use of such words as are found in the statute. 27 Verba legis non est recedendum, or from the words of a statute there should be no departure. Neither does the provision admit of any qualification. If in the wisdom of the Court, there may be a ground or grounds for non-application of the above-cited provision, this should be by way of exception, such as when the reinstatement may be inadmissible due to ensuing strained relations between the employer and the employee.

In such cases, it should be proved that the employee concerned occupies a position where he enjoys the trust and confidence of his employer; and that it is likely that if reinstated, an atmosphere of antipathy and antagonism may be generated as to adversely affect the efficiency and productivity of the employee concerned.

A few examples, will suffice to illustrate the Court's application of the above principles: where the employee is a Vice-President for Marketing and as such, enjoys the full trust and confidence of top management; 28 or is the Officer-In-Charge of the extension office of the bank where he works; 29 or is an organizer of a union who was in a position to sabotage the union's efforts to organize the workers in commercial and industrial

establishments; 30 or is a warehouseman of a non-profit organization whose primary purpose is to facilitate and maximize voluntary gifts. by foreign individuals and organizations to the Philippines; 31 or is a manager of its Energy Equipment Sales. 32

Obviously, the principle of "strained relations" cannot be applied indiscriminately. Otherwisey reinstatement can never be possible simply because some hostility is invariably engendered between the parties as a result of litigation. That is human nature. 33

Besides, no strained relations should arise from a valid and legal act of asserting one's right; otherwise an employee who shall assert his right could be easily separated from the service, by merely paying his separation pay on the pretext that his relationship with his employer had already become strained. 34

Here, it has not been proved that the position of private respondent as systems analyst is one that may be characterized as a position of trust and confidence such that if reinstated, it may well lead to strained relations between employer and employee. Hence, this does not constitute an exception to the general rule mandating reinstatement for an employee who has been unlawfully dismissed.

On the other hand, has she betrayed any confidence reposed in her by engaging in transactions that may have created conflict of interest situations? Petitioner GMCR points out that as a matter of company policy, it prohibits its employees from involving themselves with any company that has business dealings with GMCR. Consequently, when private respondent Salazar signed as a witness to the partnership papers of Concave (a supplier of Ultra which in turn is also a supplier of GMCR), she was deemed to have placed. herself in an untenable position as far as petitioner was concerned.

However, on close scrutiny, we agree with public respondent that such a circumstance did not create a conflict of interests situation. As a systems analyst, Salazar was very far removed from operations involving the procurement of supplies. Salazar's duties revolved around the development of systems and analysis of designs on a continuing basis. In other words, Salazar did not occupy a position of trust relative to the approval and purchase of supplies and company assets.

In the instant case, petitioner has predicated its dismissal of Salazar on loss of confidence. As we have held countless times, while loss of confidence or breach of trust is a valid ground for terminations it must rest an some basis which must be convincingly established. 35 An employee who not be dismissed on mere presumptions and suppositions. Petitioner's allegation that since Salazar and Saldivar lived together in the same apartment, it "presumed reasonably that complainant's sympathy would be with Saldivar" and its averment that Saldivar's investigation although unverified, was probably true, do not pass this Court's test. 36 While we should not condone the acts of disloyalty of an employee, neither should we dismiss him on the basis of suspicion derived from speculative inferences.

To rely on the Maramara report as a basis for Salazar's dismissal would be most inequitous because the bulk of the findings centered principally oh her friend's alleged thievery and anomalous transactions as technical operations' support manager. Said report merely insinuated that in view of Salazar's special relationship with Saldivar, Salazar might have had direct knowledge of Saldivar's questionable activities. Direct evidence implicating private respondent is wanting from the records.

It is also worth emphasizing that the Maramara report came out after Saldivar had already resigned from GMCR on May 31, 1984. Since Saldivar did not have the opportunity to refute management's findings, the report remained obviously one-sided. Since the main evidence obtained by petitioner dealt principally on the alleged culpability of Saldivar, without his having had a chance to voice his side in view of his prior resignation, stringent examination should have been carried out to ascertain whether or not there existed independent legal grounds to hold Salatar answerable as well and, thereby, justify her dismissal. Finding none, from the records, we find her to have been unlawfully dismissed.

WHEREFORE, the assailed resolution of public respondent National Labor Relations Commission dated December 29, 1987 is hereby AFFIRMED. Petitioner GMCR is ordered to REINSTATE private respondent Imelda Salazar and to pay her backwages equivalent to her salary for a period of two (2) years only.

This decision is immediately executory.

SO ORDERED.

G.R. No. 201701 June 3, 2013

UNILEVER PHILIPPINES, INC., Petitioner, vs. MARIA RUBY M. RIVERA, Respondent.

D E C I S I O N

MENDOZA, J.:

Subject of this disposition is the petition for review on certiorari1 under Rule 45 of the Rules of Court filed by petitioner Unilever Philippines, Inc. (Unilever) questioning the June 22, 2011 Decision2 and the April 25, 2012 Resolution3 of the Court of Appeals (CA)-Cagayan de Oro City, in CA G.R. SP No. 02963-MIN, an Illegal Dismissal case filed by respondent Maria Ruby M. Rivera (Rivera). The CA affirmed with modification the March 31, 2009 Resolution of the National Labor Relations Commission (NLRC) finding Rivera's dismissal from work to be valid as it was for a just cause and declaring

that she was not entitled to any retirement benefit. The CA, however, awarded separation pay in her favor as a measure of social justice.

The Facts

Unilever is a company engaged in the production, manufacture, sale, and distribution of various food, home and personal care products, while Rivera was employed as its Area Activation Executive for Area 9 South in the cities of Cotabato and Davao. She was primarily tasked with managing the sales, distribution and promotional activities in her area and supervising Ventureslink International, Inc. (Ventureslink), a third party service provider for the companys activation projects. Unilever enforces a strict policy that every trade activity must be accompanied by a Trade Development Program (TDP) and that the allocated budget for a specific activity must be used for such activity only.4

Sometime in 2007, Unilevers internal auditor conducted a random audit and found out that there were fictitious billings and fabricated receipts supposedly from Ventureslink amounting to P11,200,000.00. It was also discovered that some funds were diverted from the original intended projects. Upon further verification, Ventureslink reported that the fund deviations were upon the instruction of Rivera.

On July 16, 2007, Unilever issued a show-cause notice to Rivera asking her to explain the following charges, to wit: a) Conversion and Misappropriation of Resources; b) Breach of Fiduciary Trust; c) Policy Breaches; and d) Integrity Issues.

Responding through an email, dated July 16, 2007, Rivera admitted the fund diversions, but explained that such actions were mere resourceful utilization of budget because of the difficulty of procuring funds from the head office.5 She insisted that the diverted funds were all utilized in the companys promotional ventures in her area of coverage.

Through a letter, dated August 23, 2007, Unilever found Rivera guilty of serious breach of the companys Code of Business Principles compelling it to sever their professional relations. In a letter, dated September 20, 2007, Rivera asked for reconsideration and requested Unilever to allow her to receive retirement benefits having served the company for fourteen (14) years already. Unilever denied her request, reasoning that the forfeiture of retirement benefits was a legal consequence of her dismissal from work.

On October 19, 2007, Rivera filed a complaint for Illegal Dismissal and other monetary claims against Unilever.

On April 28, 2008, the Labor Arbiter (LA) dismissed her complaint for lack of merit and denied her claim for retirement benefits, but ordered Unilever to pay a proportionate 13th month pay and the corresponding cash equivalent of her unused leave credits. The decretal portion of the LA decision reads:

WHEREFORE, premises considered, judgment is hereby rendered dismissing for lack of merit the illegal dismissal complaint. However, UNILEVER PHILIPPINES, INC. is

hereby ordered to pay complainant the total amount of PESOS: FIFTY SEVEN THOUSAND EIGHTY TWO & 90/100 ONLY (P57,082.90) representing proportionate 13th month pay and unused leave credits.

The complaint against individual respondents Recto Sampang and Alejandro Concha are likewise dismissed for it was not shown that they acted in bad faith in the dismissal of complainant. Moreover, their legal personality is separate and distinct from that of the corporation.

All other money claims are dismissed for lack of basis.6

On appeal, the NLRC partially granted Riveras prayer. In its Resolution, dated November 28, 2008, the NLRC held that although she was legally dismissed from the service for a just cause, Unilever was guilty of violating the twin notice requirement in labor cases. Thus, Unilever was ordered to pay her P30,000.00 as nominal damages, retirement benefits and separation pay. The dispositive portion reads:

WHEREFORE, foregoing premises considered, the appeal is PARTIALLY GRANTED. The assailed Decision dated 28 April 2008 is hereby MODIFIED in the sense that respondent UNILEVER PHILIPPINES, INC. is hereby ordered to pay the following sums:

1. The amount of P30,000.00 representing nominal damages for violation of complainants right to procedural due process;

2. Retirement benefits under the companys applicable retirement policy or written agreement, and in the absence of which, to pay complainant her retirement pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year;

3. Separation pay under the companys applicable policy or written agreement, and in the absence of which, to pay separation pay equivalent to at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year.

The rest of the Decision is hereby AFFIRMED.

SO ORDERED.7

Unilever asked for a reconsideration of the NLRC decision. In its Resolution, dated March 31, 2009, the NLRC modified its earlier ruling by deleting the award of separation pay and reducing the nominal damages from P30,000.00 to P20,000.00, but affirmed the award of retirement benefits to Rivera. The fallo reads:

WHEREFORE, foregoing premises considered, the instant Motion for Partial Reconsideration is PARTLY GRANTED. The Resolution dated 28 November 2008 of the Commission is hereby

RECONSIDERED as follows:

(1)The award of separation pay is hereby deleted for lack of factual and legal basis; and

(2)The award of nominal damages is hereby tempered and reduced to the amount of P20,000.00.

The rest of the award for retirement benefits is affirmed in toto.

SO ORDERED.8

Unsatisfied with the ruling, Unilever elevated the case to CA-Cagayan de Oro City via a petition for certiorari under Rule 65 of the Rules of Court.

On June 22, 2011, the CA affirmed with modification the NLRC resolution. Justifying the deletion of the award of retirement benefits, the CA explained that, indeed, under Unilevers Retirement Plan, a validly dismissed employee cannot claim any retirement benefit regardless of the length of service. Thus, Rivera is not entitled to any retirement benefit. It stated, however, that there was no proof that she personally gained any pecuniary benefit from her infractions, as her instructions were aimed at increasing the sales efficiency of the company and competing in the local market. For said reason, the CA awarded separation pay in her favor as a measure of social justice.9 The decretal portion of the CA decision reads:

WHEREFORE, the assailed Resolution dated March 31, 2009 of the NLRC (Branch 5), Cagayan De Oro City is hereby AFFIRMED with MODIFICATION. Consequently, UNILEVER is directed to pay MARIA RUBY M. RIVERA the following:

a) Separation pay, to be computed based on the companys applicable policy or written agreement, or in the absence thereof, the equivalent of at least one-half (1/2) month salary for every year of service, a fraction of at least six (6) months being considered as one whole year;

b) P20,000.00 as nominal damages; and

c) Proportionate 13th month pay and unused leave credits, to be computed based on her salary during the period relevant to the case.

The award of retirement benefits is hereby DELETED.

SO ORDERED.10

Unilever filed a motion for partial reconsideration,11 but it was denied in a Resolution, dated April 25, 2012.

Hence, this petition.12

In support of its position, Unilever submits for consideration the following

G R O U N D S

I.

THE COURT OF APPEALS SERIOUSLY ERRED AND GRAVELY ABUSED ITS DISCRETION IN GRANTING AFFIRMATIVE RELIEFS IN FAVOR OF RIVERA EVEN IF SHE DID NOT FILE ANY PETITION FOR CERTIORARI TO CHALLENGE THE NLRC RESOLUTIONS.

II.

THE COURT OF APPEALS SERIOUSLY ERRED AND GRAVELY ABUSED ITS DISCRETION IN AWARDING SEPARATION PAY IN FAVOR OF RIVERA CONSIDERING THAT THE LATTER WAS VALIDLY DISMISSED FROM EMPLOYMENT BASED ON JUST CAUSES UNDER THE LAW.

III.

THE COURT OF APPEALS SERIOUSLY ERRED AND GRAVELY ABUSED ITS DISCRETION IN RULING THAT THE COMPANY VIOLATED RIVERAS RIGHT TO PROCEDURAL DUE PROCESS BEFORE TERMINATING HER EMPLOYMENT, AND CONSEQUENTLY, IN AWARDING NOMINAL DAMAGES.13

Unilever argues that Rivera did not file any separate petition for certiorari before the CA. Neither did she file any comment on its petition. Hence, it was erroneous for the CA to grant an affirmative relief because it was inconsistent with the doctrine that a party who has not appealed cannot obtain from the appellate court any affirmative relief other than the ones granted in the appealed decision. The petitioner stresses that Rivera misappropriated company funds amounting to millions of pesos and that granting her separation pay undermines the serious misdeeds she committed against the company. Moreover, the length of her service with Unilever does not mitigate her offense, but even aggravates the depravity of her acts.14

The petition is partly meritorious.

The pivotal issue in the case at bench is whether or not a validly dismissed employee, like Rivera, is entitled to an award of separation pay.

As a general rule, an employee who has been dismissed for any of the just causes enumerated under Article 28215of the Labor Code is not entitled to a separation pay.16 Section 7, Rule I, Book VI of the Omnibus Rules Implementing the Labor Code provides:

Sec. 7. Termination of employment by employer. The just causes for terminating the services of an employee shall be those provided in Article 282 of the Code. The separation from work of an employee for a just cause does not entitle him to the termination pay provided in the Code, without prejudice, however, to whatever rights, benefits and privileges he may have under the applicable individual or collective agreement with the employer or voluntary employer policy or practice.

In exceptional cases, however, the Court has granted separation pay to a legally dismissed employee as an act of "social justice" or on "equitable grounds." In both instances, it is required that the dismissal (1) was not for serious misconduct; and (2) did not reflect on the moral character of the employee.17 The leading case of Philippine Long Distance Telephone Co. vs. NLRC18 is instructive on this point:

We hold that henceforth separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. Where the reason for the valid dismissal is, for example, habitual intoxication or an offense involving moral turpitude, like theft or illicit sexual relations with a fellow worker, the employer may not be required to give the dismissed employee separation pay, or financial assistance, or whatever other name it is called, on the ground of social justice.

A contrary rule would, as the petitioner correctly argues, have the effect, of rewarding rather than punishing the erring employee for his offense. And we do not agree that the punishment is his dismissal only and the separation pay has nothing to do with the wrong he has committed. Of course it has. Indeed, if the employee who steals from the company is granted separation pay even as he is validly dismissed, it is not unlikely that he will commit a similar offense in his next employment because he thinks he can expect a like leniency if he is again found out.1wphi1 This kind of misplaced compassion is not going to do labor in general any good as it will encourage the infiltration of its ranks by those who do not deserve the protection and concern of the Constitution.

The policy of social justice is not intended to countenance wrongdoing simply because it is committed by the underprivileged. At best, it may mitigate the penalty but it certainly will not condone the offense. Compassion for the poor is an imperative of every humane society but only when the recipient is not a rascal claiming an undeserved privilege. Social justice cannot be permitted to be refuge of scoundrels any more than can equity be an impediment to the punishment of the guilty. Those who invoke social justice may do so only if their hands are clean and their motives blameless and not simply because they happen to be poor. This great policy of our Constitution is not meant for the

protection of those who have proved they are not worthy of it, like the workers who have tainted the cause of labor with the blemishes of their own character.19

In the subsequent case of Toyota Motor Philippines Corporation Workers Association (TMPCWA) v. National Labor Relations Commission,20 it was further elucidated that "in addition to serious misconduct, in dismissals based on other grounds under Art. 282 like willful disobedience, gross and habitual neglect of duty, fraud or willful breach of trust, and commission of a crime against the employer or his family, separation pay should not be conceded to the dismissed employee."21 In Reno Foods, Inc, v. Nagkakaisang Lakas ng Manggagawa (NLM)-Katipunan,22 the Court wrote that "separation pay is only warranted when the cause for termination is not attributable to the employees fault, such as those provided in Articles 283 and 284 of the Labor Code, as well as in cases of illegal dismissal in which reinstatement is no longer feasible. It is not allowed when an employee is dismissed for just cause."23

In this case, Rivera was dismissed from work because she intentionally circumvented a strict company policy, manipulated another entity to carry out her instructions without the companys knowledge and approval, and directed the diversion of funds, which she even admitted doing under the guise of shortening the laborious process of securing funds for promotional activities from the head office. These transgressions were serious offenses that warranted her dismissal from employment and proved that her termination from work was for a just cause. Hence, she is not entitled to a separation pay.

More importantly, Rivera did not appeal the March 31, 2009 ruling of the NLRC disallowing the award of separation pay to her. It was Unilever who elevated the case to the CA. It is axiomatic that a party who does not appeal, or file a petition for certiorari, is not entitled to any affirmative relief.24 Due process prevents the grant of additional awards to parties who did not appeal.25 An appellee who is not an appellant may assign errors in his brief where his purpose is to maintain the judgment, but he cannot seek modification or reversal of the judgment or claim affirmative relief unless he has also appealed.26 It was, therefore, erroneous for the CA to grant an affirmative relief to Rivera who did not ask for it.

Lastly, Unilever questions the grant of nominal damages in favor of Rivera for its alleged non-observance of the requirements of procedural due process. It insists that she was given ample opportunity "to explain her side, interpose an intelligent defense and adduce evidence on her behalf." 27

The Court is not persuaded. Section 2, Rule XXIII, Book V of the Rules Implementing the Labor Code expressly states:

Section 2. Standard of due process: requirements of notice.

In all cases of termination of employment, the following standards of due process shall be substantially observed.

I. For termination of employment based on just causes as defined in Article 282 of the Code:

(a) A written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side;

(b) A hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him; and

(c) A written notice of termination served on the employee indicating that upon due consideration of all the circumstance, grounds have been established to justify his termination.

In case of termination, the foregoing notices shall be served on the employees last known address.

King of Kings Transport, Inc. v. Mamac28 detailed the steps on how procedural due process can be satisfactorily complied with. Thus:

To clarify, the following should be considered in terminating the services of employees:

(1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. "Reasonable opportunity" under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 is being charged against the employees.

(2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the

employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.

(3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.29

In this case, Unilever was not direct and specific in its first notice to Rivera. The words it used were couched in general terms and were in no way informative of the charges against her that may result in her dismissal from employment. Evidently, there was a violation of her right to statutory due process warranting the payment of indemnity in the form of nominal damages. Hence, the Court finds no compelling reason to reverse the award of nominal damages in her favor. The Court, however, deems it proper to increase the award of nominal damages from P20,000.00 to P30,000.00, as initially awarded by the NLRC, in accordance with existing jurisprudence.30

WHEREFORE, the petition is hereby PARTIALLY GRANTED.1wphi1 The June 22, 2011 Decision and the April 25, 2012 Resolution of the Court of Appeals (CA)-Cagayan de Oro City in CA-G.R. SP No. 02963-MIN are AFFIRMED with MODIFICATION. The dispositive portion should read as follows:

WHEREFORE, the March 31, 2009 Resolution of the NLRC (Branch 5), Cagayan de Oro City, is hereby AFFIRMED with MODIFICATION. UNILEVER PHILIPPINES, INC., is hereby directed to pay MARIA RUBY M. RIVERA the following:

a) P30,000.00 as nominal damages; and

b) Proportionate 13th month pay and unused leave credits, to be computed based on her salary during the period relevant to the case.

The award of retirement benefit is DELETED.

SO ORDERED.

PHILIPPINE NATIONAL BANK, petitioner, vs. FLORENCE O. CABANSAG, respondent.

D E C I S I O N

PANGANIBAN, J.:

The Court reiterates the basic policy that all Filipino workers, whether employed locally or overseas, enjoy the protective mantle of Philippine labor and social legislations. Our labor statutes may not be rendered ineffective by laws or judgments promulgated, or stipulations agreed upon, in a foreign country.

The Case

Before us is a Petition for Review on Certiorari[1] under Rule 45 of the Rules of Court, seeking to reverse and set aside the July 16, 2002 Decision[2] and the January 29, 2003 Resolution[3]of the Court of Appeals (CA) in CA-GR SP No. 68403. The assailed Decision dismissed the CA Petition (filed by herein petitioner), which had sought to reverse the National Labor Relations Commission (NLRC)s June 29, 2001 Resolution,[4] affirming Labor Arbiter Joel S. Lustrias January 18, 2000 Decision.[5]

The assailed CA Resolution denied herein petitioners Motion for Reconsideration.

The Facts

The facts are narrated by the Court of Appeals as follows:

In late 1998, [herein Respondent Florence Cabansag] arrived in Singapore as a tourist. She applied for employment, with the Singapore Branch of the Philippine National Bank, a private

banking corporation organized and existing under the laws of the Philippines, with principal

offices at the PNB Financial Center, Roxas Boulevard, Manila. At the time, the Singapore PNB

Branch was under the helm of Ruben C. Tobias, a lawyer, as General Manager, with the rank of

Vice-President of the Bank. At the time, too, the Branch Office had two (2) types of employees:

(a) expatriates or the regular employees, hired in Manila and assigned abroad including

Singapore, and (b) locally (direct) hired. She applied for employment as Branch Credit Officer,

at a total monthly package of $SG4,500.00, effective upon assumption of duties after approval.

Ruben C. Tobias found her eminently qualified and wrote on October 26, 1998, a letter to the

President of the Bank in Manila, recommending the appointment of Florence O. Cabansag, for

the position.

x x x x x x x x x

The President of the Bank was impressed with the credentials of Florence O. Cabansag that he approved the recommendation of Ruben C. Tobias. She then filed an Application, with the Ministry of Manpower of the Government of Singapore, for the issuance of an Employment Pass as an employee of the Singapore PNB Branch. Her application was approved for a period of two (2) years.

On December 7, 1998, Ruben C. Tobias wrote a letter to Florence O. Cabansag offering her a temporary appointment, as Credit Officer, at a basic salary of Singapore Dollars 4,500.00, a

month and, upon her successful completion of her probation to be determined solely, by the

Bank, she may be extended at the discretion of the Bank, a permanent appointment and that her

temporary appointment was subject to the following terms and conditions:

1. You will be on probation for a period of three (3) consecutive months from the date of your assumption of duty.

2. You will observe the Banks rules and regulations and those that may be adopted from time to time.

3. You will keep in strictest confidence all matters related to transactions between the Bank and its clients.

4. You will devote your full time during business hours in promoting the business and interest of the Bank.

5. You will not, without prior written consent of the Bank, be employed in anyway for any purpose whatsoever outside business hours by any person, firm or company.

6. Termination of your employment with the Bank may be made by either party after notice of one (1) day in writing during probation, one month notice upon confirmation or the

equivalent of one (1) days or months salary in lieu of notice.

Florence O. Cabansag accepted the position and assumed office. In the meantime, the Philippine Embassy in Singapore processed the employment contract of Florence O. Cabansag

and, on March 8, 1999, she was issued by the Philippine Overseas Employment Administration,

an Overseas Employment Certificate, certifying that she was a bona fide contract worker for Singapore.

x x x x x x x x x

Barely three (3) months in office, Florence O. Cabansag submitted to Ruben C. Tobias, on March 9, 1999, her initial Performance Report. Ruben C. Tobias was so impressed with the Report that he made a notation and, on said Report: GOOD WORK. However, in the evening of April 14, 1999, while Florence O. Cabansag was in the flat, which she and Cecilia

Aquino, the Assistant Vice-President and Deputy General Manager of the Branch and Rosanna

Sarmiento, the Chief Dealer of the said Branch, rented, she was told by the two (2) that Ruben C.

Tobias has asked them to tell Florence O. Cabansag to resign from her job. Florence O.

Cabansag was perplexed at the sudden turn of events and the runabout way Ruben C. Tobias

procured her resignation from the Bank. The next day, Florence O. Cabansag talked to Ruben C.

Tobias and inquired if what Cecilia Aquino and Rosanna Sarmiento had told her was true.

Ruben C. Tobias confirmed the veracity of the information, with the explanation that her

resignation was imperative as a cost-cutting measure of the Bank. Ruben C. Tobias, likewise, told Florence O. Cabansag that the PNB Singapore Branch will be sold or transformed into a

remittance office and that, in either way, Florence O. Cabansag had to resign from her

employment. The more Florence O. Cabansag was perplexed. She then asked Ruben C. Tobias

that she be furnished with a Formal Advice from the PNB Head Office in Manila. However, Ruben C. Tobias flatly refused. Florence O. Cabansag did not submit any letter of resignation.

On April 16, 1999, Ruben C. Tobias again summoned Florence O. Cabansag to his office and demanded that she submit her letter of resignation, with the pretext that he needed a Chinese-

speaking Credit Officer to penetrate the local market, with the information that a Chinese-

speaking Credit Officer had already been hired and will be reporting for work soon. She was

warned that, unless she submitted her letter of resignation, her employment record will be

blemished with the notation DISMISSED spread thereon. Without giving any definitive answer, Florence O. Cabansag asked Ruben C. Tobias that she be given sufficient time to look

for another job. Ruben C. Tobias told her that she should be out of her employment by May 15, 1999.

However, on April 19, 1999, Ruben C. Tobias again summoned Florence O. Cabansag and adamantly ordered her to submit her letter of resignation. She refused. On April 20, 1999, she

received a letter from Ruben C. Tobias terminating her employment with the Bank.

x x x x x x x x x

On January 18, 2000, the Labor Arbiter rendered judgment in favor of the Complainant and against the Respondents, the decretal portion of which reads as follows:

WHEREFORE, considering the foregoing premises, judgment is hereby rendered finding respondents guilty of Illegal dismissal and devoid of due process, and are hereby ordered:

1. To reinstate complainant to her former or substantially equivalent position without

loss of seniority rights, benefits and privileges;

2. Solidarily liable to pay complainant as follows:

a) To pay complainant her backwages from 16 April 1999 up to her actual

reinstatement. Her backwages as of the date of the promulgation of this

decision amounted to SGD 40,500.00 or its equivalent in Philippine Currency

at the time of payment;

b) Mid-year bonus in the amount of SGD 2,250.00 or its equivalent in Philippine

Currency at the time of payment;

c) Allowance for Sunday banking in the amount of SGD 120.00 or its equivalent

in Philippine Currency at the time of payment;

d) Monetary equivalent of leave credits earned on Sunday banking in the amount

of SGD 1,557.67 or its equivalent in Philippine Currency at the time of

payment;

e) Monetary equivalent of unused sick leave benefits in the amount of SGD

1,150.60 or its equivalent in Philippine Currency at the time of payment.

f) Monetary equivalent of unused vacation leave benefits in the amount of SGD

319.85 or its equivalent in Philippine Currency at the time of payment.

g) 13th

month pay in the amount of SGD 4,500.00 or its equivalent in Philippine

Currency at the time of payment;

3. Solidarily to pay complainant actual damages in the amount of SGD 1,978.00 or its

equivalent in Philippine Currency at the time of payment, and moral damages in the

amount of PhP 200,000.00, exemplary damages in the amount of PhP 100,000.00;

4. To pay complainant the amount of SGD 5,039.81 or its equivalent in Philippine

Currency at the time of payment, representing attorneys fees.

SO ORDERED. [6] [Emphasis in the original.]

PNB appealed the labor arbiters Decision to the NLRC. In a Resolution dated June 29, 2001, the Commission affirmed that Decision, but reduced the moral damages to P100,000 and the exemplary damages to P50,000. In a subsequent Resolution, the NLRC denied PNBs Motion for Reconsideration.

Ruling of the Court of Appeals

In disposing of the Petition for Certiorari, the CA noted that petitioner bank had failed to adduce in evidence the Singaporean law supposedly governing the latters employment Contract with respondent. The appellate court found that the Contract had actually been processed by the Philippine Embassy in Singapore and approved by the Philippine Overseas Employment Administration (POEA), which then used that Contract as a basis for issuing an Overseas Employment Certificate in favor of respondent.

According to the CA, even though respondent secured an employment pass from the Singapore Ministry of Employment, she did not thereby waive Philippine labor laws, or the jurisdiction of the labor arbiter or the NLRC over her Complaint for illegal dismissal. In so doing, neither did she submit herself solely to the Ministry of Manpower of Singapores jurisdiction over disputes arising from her employment. The appellate court further noted that a cursory reading of the Ministrys letter will readily show that no such waiver or submission is stated or implied.

Finally, the CA held that petitioner had failed to establish a just cause for the dismissal of respondent. The bank had also failed to give her sufficient notice and an opportunity to be heard and to defend herself. The CA ruled that she was consequently entitled to reinstatement and back wages, computed from the time of her dismissal up to the time of her reinstatement.

Hence, this Petition.[7]

Issues

Petitioner submits the following issues for our consideration:

1. Whether or not the arbitration branch of the NLRC in the National Capital Region has jurisdiction over the instant controversy;

2. Whether or not the arbitration of the NLRC in the National Capital Region is the most convenient venue or forum to hear and decide the instant controversy; and

3. Whether or not the respondent was illegally dismissed, and therefore, entitled to recover moral and exemplary damages and attorneys fees.[8]

In addition, respondent assails, in her Comment,[9] the propriety of Rule 45 as the procedural mode for seeking a review of the CA Decision affirming the NLRC Resolution. Such issue deserves scant consideration. Respondent miscomprehends the Courts discourse in St. Martin Funeral Home v. NLRC,[10] which has indeed affirmed that the proper mode of review of NLRC decisions, resolutions or orders is by a special civil action for certiorari under Rule 65 of the Rules of Court. The Supreme Court and the Court of Appeals have concurrent original jurisdiction over such petitions for certiorari. Thus, in observance of the doctrine on the hierarchy of courts, these petitions should be initially filed with the CA.[11]

Rightly, the bank elevated the NLRC Resolution to the CA by way of a Petition for Certiorari. In seeking a review by this Court of the CA Decision -- on questions of jurisdiction, venue and validity of employment termination -- petitioner is likewise correct in invoking Rule 45.[12]

It is true, however, that in a petition for review on certiorari, the scope of the Supreme Courts judicial review of decisions of the Court of Appeals is generally confined only to errors of law. It does not extend to questions of fact. This doctrine applies with greater force in labor cases. Factual questions are for the labor tribunals to resolve. [13] In the present case, the labor arbiter and the NLRC have already determined the factual issues. Their findings, which are supported by substantial evidence, were affirmed by the CA. Thus, they are entitled to great respect and are rendered conclusive upon this Court, absent a clear showing of palpable error or arbitrary disregard of evidence.[14]

The Courts Ruling

The Pe