1. DE GRACIA

National Service Corporation (NASECO) vs. NLRCG.R. No. L-69870 November 29, 1988

FACTS: Eugenia C. Credo was an employee of the NASECO, a domestic corporation which provides security guards to PNB and its agencies. She was first employed with NASECO as a lady guard through the years, she was promoted to Clerk Typist, then Personnel Clerk until she became Chief of Property and Records.

Credo was administratively charged by Sisinio S. Lloren, Manager of Finance and Special Project and Evaluation Department of NASECO, stemming from her non-compliance with Lloren's memorandum, regarding certain entry procedures in the company's Statement of Billings Adjustment. Said charges alleged that Credo "did not comply with Lloren's instructions to place some corrections/additional remarks in the Statement of Billings Adjustment; and when [Credo] was called by Lloren to his office to explain further the said instructions, [Credo] showed resentment and behaved in a scandalous manner by shouting and uttering remarks of disrespect in the presence of her co-employees."

Credo was called to meet Arturo L. Perez, then Acting General Manager of NASECO, to explain her side in connection with the administrative charges filed against her. After said meeting, on the same date, Credo was placed on "Forced Leave" status for 15 days.

Before the expiration of said 15-day leave, Credo filed a complaint, with the Arbitration Branch, National Capital Region, Ministry of Labor and Employment, Manila, against NASECO for placing her on forced leave, without due process.

Likewise, while Credo was on forced leave, NASECO's Committee on Personnel Affairs deliberated and evaluated a number of past acts of misconduct or infractions attributed to her. As a result of this deliberation, said committee resolved that, Credo committed the

following offenses in the Code of Discipline, viz: discourteous act to customer, officer and employee of client company or officer of the Corporation, Exhibit marked discourtesy in the course of official duties or use of profane or insulting language to any superior officer, Failure to comply with any lawful order or any instructions of a superior officer.

The Management has already given due consideration to Credoscandalous actuations for several times in the past. Records also show that she was reprimanded for some offense and did not question it. Management at this juncture, has already met its maximum tolerance point so it has decided to put an end to Credo being an undesirable employee.

The committee recommended Credo's termination, with forfeiture of benefits. Credo was informed that she was being charged with certain offenses. Notably, these offenses were those which NASECO's Committee on Personnel Affairs already resolved, have been committed by Credo.

In Perez's office, and in the presence of NASECO's Committee on Personnel Affairs, Credo was made to explain her side in connection with the charges filed against her; however, due to her failure to do so, she was handed a Notice of Termination. Hence, Credo filed a supplemental complaint for illegal dismissal, alleging absence of just or authorized cause for her dismissal and lack of opportunity to be heard.

Labor arbiter: rendered a decision dismissing Credo's complaint, and directing NASECO to pay Credo separation pay equivalent to one half month's pay for every year of service.

NLRC: rendered a decision directing NASECO to reinstate Credo to her former position, or substantially equivalent position, with six (6) months' backwages and without loss of seniority rights and other privileges appertaining thereto, and dismissing Credo's claim for attorney's fees, moral and exemplary damages.

ISSUE 1: WON petitioners violated the requirements mandated by law on termination,

HELD: 1. Yes. NASECO violated the requirements mandated by law on termination. These guidelines mandate that the employer furnish an employee sought to be dismissed two (2) written notices of dismissal before a termination of employment can be legally effected. These are the notice which apprises the employee of the particular acts or omissions for which his dismissal is sought and the subsequent notice which informs the employee of the employer’s decision to dismiss him.

Likewise, a reading of the guidelines in consonance with the express provisions of law on protection to labor (which encompasses the right to security of tenure) and the broader dictates of procedural due process necessarily mandate that notice of the employer’s decision to dismiss an employee, with reasons therefor, can only be issued after the employer has afforded the employee concerned ample opportunity to be heard and to defend himself.

In the case at bar, NASECO did not comply with these guidelines in effecting Credo’s dismissal. Although she was apprised and “given the chance to explain her side” of the charges filed against her, this chance was given so perfunctorily, thus rendering illusory Credo’s right to security of tenure. That Credo was not given ample opportunity to be heard and to defend herself is evident from the fact that the compliance with the injunction to apprise her of the charges filed against her and to afford her a chance to prepare for her defense was dispensed in only a day. This is not effective compliance with the legal requirements aforementioned.

The fact also that the Notice of Termination of Credo’s employment (or the decision to dismiss her) was dated 24 November 1983 and made effective 1 December 1983 shows that NASECO was already bent on terminating her services when she was informed on 1 December 1983 of the charges against her, and that any hearing which NASECO

thought of affording her after 24 November 1983 would merely be pro forma or an exercise in futility.

Besides, Credo’s mere non-compliance with Loren’s memorandum regarding the entry procedures in the company’s Statement of Billings Adjustment did not warrant the severe penalty of dismissal.ISSUE 2: WON the alleged infractions committed by Credo were not proven or, even if proved, could be considered to have been condoned by petitioners.

HELD 2: Yes. Of course, in justifying Credo’s termination of employment, NASECO claims as additional lawful causes for dismissal Credo’s previous and repeated acts of insubordination, discourtesy and sarcasm towards her superior officers, alleged to have been committed from 1980 to July 1983. If such acts of misconduct were indeed committed by Credo, they are deemed to have been condoned by NASECO. For instance, sometime in 1980, when Credo allegedly “reacted in a scandalous manner and raised her voice” in a discussion with NASECO’s Acting head of the Personnel Administration, no disciplinary measure was taken or meted against her. Nor was she even reprimanded when she allegedly talked “in a shouting or yelling manner” with the Acting Manager of NASECO’s Building Maintenance and Services Department in 1980, or when she allegedly “shouted” at NASECO’s Corporate Auditor “in front of his subordinates displaying arrogance and unruly behavior” in 1980, or when she allegedly shouted at NASECO’s Internal Control Consultant in 1981. But then, in sharp contrast to NASECO’s penchant for ignoring the aforesaid acts of misconduct, when Credo committed frequent tardiness in August and September 1983, she was reprimanded.

ISSUE 3: WON petitioners failed in the burden of proving that the termination of Credo was for a valid or authorized cause and the termination of Credo was not for a valid or authorized cause.

HELD 3: Yes. Considering that the acts or omissions for which Credo’s employment was sought to be legally terminated were insufficiently proved, as to justify dismissal, reinstatement is proper. For “absent the

reason which gave rise to [the employee’s] separation from employment, there is no intention on the part of the employer to dismiss the employee concerned.” And, as a result of having been wrongfully dismissed, Credo is entitled to three (3) years of backwages without deduction and qualification.

ISSUE 4: WON NLRC has jurisdiction.

HELD 4: Yes. It would appear that, in the interest of justice, the holding in said case should not be given retroactive effect, that is, to cases that arose before its promulgation on 17 January 1985. To do otherwise would be oppressive to Credo and other employees similarly situated, because under the same 1973 Constitution but prior to the ruling in National Housing Corporation vs. Juco, this Court had recognized the applicability of the Labor Code to, and the authority of the NLRC to exercise jurisdiction over, disputes involving terms and conditions of employment in government-owned or controlled corporations, among them, the National Service Corporation (NASECO).

On the premise that it is the 1987 Constitution that governs the instant case because it is the Constitution in place at the time of decision thereof, the NLRC has jurisdiction to accord relief to the parties. As an admitted subsidiary of the NIDC, in turn a subsidiary of the PNB, the NASECO is a government-owned or controlled corporation without original charter.

The decision of the NLRC is AFFIRMED with modifications. 1) reinstate Eugenia C. Credo to her former position at the time of her termination, or if such reinstatement is not possible, to place her in a substantially equivalent position, with three (3) years backwages, from 1 December 1983, without qualification or deduction, and without loss of seniority rights and other privileges appertaining thereto, and 2) pay Eugenia C. Credo P5,000.00 for moral damages and P5,000.00 for attorney's fees.

If reinstatement in any event is no longer possible because of supervening events, ordered to pay Eugenia C. Credo, in addition to her backwages and damages as above described, separation pay

equivalent to one-half month's salary for every year of service, to be computed on her monthly salary at the time of her termination on 1 December 1983.

2. MARTIN

Facts:Private respondent Central Philippine Union Mission

Corporation of the Seventh Day Adventists (SDA) is a religious corporation under Philippine law and is represented by the other private respondents. Petitioner was a pastor of SDA until 1991, when his services were terminated. Austria worked with SDA for 28 years. He started as a literature evangelist in 1963 then got promoted several times. He became the Assistant Publishing Director in the West Visayan Mission of the SDA in 1968 and Pastor in the West Visayan Mission in 1972.Finally in 1989, he was promoted as District Pastor of the Negros Mission of the SDA.

On various occasions from August to October 1991, Austria received several communications from Mr. Ibesate, treasurer of the Negros Mission, asking the former to admit accountability and responsibility for the church tithes and offerings collected by his wife, Thelma Austria, in his district and to remit the same to the Negros Mission. In his answer, petitioner said that he should not be made accountable since it was private respondent Pastor Buhat and Mr. Ibesate who authorized his wife to collect the tithes and offerings since he was very sick to do the collecting at that time. Thereafter, petitioner went to the office of Pastor Buhat, president of the Negros Mission, and asked for a convention to settle the dispute between petitioner and Pastor Rodrigo. Pastor Buhat denied the request of petitioner because there was no quorum. The two exchanged heated arguments until petitioner left the office. However, while on his way out, he heard Pastor Buhat saying, "Pastor daw inisog na ina iya (Pador you are talking tough)´ which prompted him to go back and overturn Pastor Buhat table, scatter books in the office, bang Buhat attaché case and throw the phone. Petitioner received a letter inviting him and his wife to attend the meeting to discuss the non-remittance of church collection and the events that transpired between him and Pastor Buhat.

A fact-finding committee was created to investigate petitioner. Subsequently, petitioner received a letter of dismissal citing misappropriation of denominational funds, willful breach of trust, serious misconduct, gross and habitual neglect of duties, and commission of an

offense against the person of employer's duly authorized representative, as grounds for the termination of his services Petitioner filed a complaint with the Labor Arbiter for illegal dismissal. = decision rendered in favor of petitioner 2) SDA appealed to NLRC = decision rendered in favor of respondent3) Petitioner filed motion for reconsideration = reinstated decision of Labor Arbiter 4) SDA filed motion for reconsideration = decision rendered in favor of respondent Hence, this recourse to the court by the petitioner.

Issues:1) WON the Labor Arbiter/NLRC has jurisdiction to try and decide the complaint filed by petitioner against the SDA2) WON the termination of the services of petitioner is an ecclesiastical affair, and, as such, involves the separation of church andstate;

Held:The NLRC grounded its findings on the following postulates: (a)

the witnesses of PHILSTEEL are credible for petitioner failed to show any ground for them to falsely testify, especially in the light of his excellent job performance; and, (b) respondents' witnesses are more credible than petitioner's — Lukban who, insofar as the source of the information is concerned, impressed the NLRC as evasive. 18 The NLRC however entertained a patent misapprehension of the burden of proof rule in labor termination cases. Unlike in other cases where the complainant has the burden of proof to discharge, in labor cases concerning illegal dismissals, the burden of proving that the employee was dismissed with just cause rests upon the employer. 19 Such is the mandate of Art. 278 of the Labor Code.

3. MIRANDA

4. BARTOLOME

Agabon vs NLRC

Facts: Private respondent Riviera Home Improvements, Inc. is engaged in the business of selling and installing ornamental and construction materials. It employed petitioners Virgilio Agabon and Jenny Agabon as gypsum board and cornice installers on January 2, 1992 until February 23, 1999 when they were dismissed for abandonment of work. 

Petitioners then filed a complaint for illegal dismissal and payment of money claims and on December 28, 1999, the Labor Arbiter rendered a decision declaring the dismissals illegal and ordered private respondent to pay the monetary claims. 

Issue: Whether or not respondent’s dismissal is illegal and if not, entitles them benefits. 

Ruling: The Court ruled that the dismissal is legal and entitles them of payment of benefits. 

Dismissals based on just causes contemplate acts or omissions attributable to the employee while dismissals based on authorized causes involve grounds under the Labor Code which allow the employer to terminate employees. A termination for an authorized cause requires payment of separation pay. When the termination of employment is declared illegal, reinstatement and full back wages are mandated under Article 279. If reinstatement is no longer possible where the dismissal was unjust, separation pay may be granted. 

Procedurally, (1) if the dismissal is based on a just cause under Article 282, the employer must give the employee two written notices and a hearing or opportunity to be heard if requested by the employee before terminating the employment: a notice specifying the grounds for which dismissal is sought a hearing or an opportunity to be heard and after hearing or opportunity to be heard, a notice of the decision to dismiss;

and (2) if the dismissal is based on authorized causes under Articles 283 and 284, the employer must give the employee and the Department of Labor and Employment written notices 30 days prior to the effectivity of his separation. 

From the foregoing rules four possible situations may be derived: (1) the dismissal is for a just cause under Article 282 of the Labor Code, for an authorized cause under Article 283, or for health reasons under Article 284, and due process was observed; (2) the dismissal is without just or authorized cause but due process was observed; (3) the dismissal is without just or authorized cause and there was no due process; and (4) the dismissal is for just or authorized cause but due process was not observed. 

In the fourth situation, the dismissal should be upheld. While the procedural infirmity cannot be cured, it should not invalidate the dismissal. However, the employer should be held liable for non-compliance with the procedural requirements of due process. 

The present case squarely falls under the fourth situation. The dismissal should be upheld because it was established that the petitioners abandoned their jobs to work for another company. Private respondent, however, did not follow the notice requirements and instead argued that sending notices to the last known addresses would have been useless because they did not reside there anymore. Unfortunately for the private respondent, this is not a valid excuse because the law mandates the twin notice requirements to the employee’s last known address. Thus, it should be held liable for non-compliance with the procedural requirements of due process. 

The Court ruled that respondent is liable for petitioners’ holiday pay, service incentive leave pay and 13th month pay without deductions. The evident intention of Presidential Decree No. 851 is to grant an additional income in the form of the 13th month pay to employees not already receiving the same so as “to further protect the level of real wages from the ravages of world-wide inflation.” Clearly, as additional

income, the 13th month pay is included in the definition of wage under Article 97(f) of the Labor Code. 

An employer is prohibited under Article 113 of the same Code from making any deductions without the employee’s knowledge and consent.

5. TALAY

COLUMBUS PHILIPPINES BUS CORPORATIONVS

NATIONAL LABOR RELATIONS COMMISIONSEPTEMBER 7, 2001

FACTS:Petitioner Columbus Philippines Bus Corporation is engaged in

the business of operating passenger buses. Since the start of its operation in 1990 it has maintained a list of drivers and conductors who rendered service in bus units allegedly on a “first come first served” basis and compensated purely on commission. The drivers and conductress worked for about ten to fifteen days a month and were allegedly not required to work everyday.Private respondent Roman Domasig started working as a driver with the petitioner on August 30, 1990 while his wife and respondent ZenaidaDomasig was employed as a bus conductress. The employment of private respondents with the petitioner was abruptly terminated for their having alleged formed a labor union. Roman Domasig narrated that on January 21, 1992, he was forced to vacate the bus he was regularly driving because of the alleged formed labor union and from that time was never allowed to work with the petitioner. Zenaida and Roman also narrated that they planned to put up a labor union because of illegal deductions, excessive work for 19 to 20 hours per day, and unfair labor practice by the petitioner. Upon learning of the alleged formed labor union, one of the officers of the petitioner AttyCatabian called the attention of Roman for the alleged union labor and informed him that he will surely dismissed him from work. Thus two cases of unfair practice labor, illegal dismissal, non-payment of service incentive leave pay and 13th month pay were instituted by private respondents against petitioner. Labor Arbiter found for the private respondents and ordered the petitioner to reinstate them to their former positions, without loss of seniority rights and with backpay. Aggrieved by the reversed judgment of the Labor Arbiter, petitioner appealed to the NLRC. Petitioner alleges that private respondents are not regular employees. NLRC affirmed the decision of the Labor Arbiter that they

were illegally dismissed and that private respondents are regular employees of the petitioner because of the reasonable connection of the specific activity performed by the employee in relation to the usual trade or business of the employer. Petitioner again appealed to the CA but affirmed the decision of the NLRC. They brought their case to the Supreme Court presenting its main argument that their termination was a valid and authorized cause on the ground of abandonment of work.

ISSUE:Whether or not private respondents are illegally dismissed.

HELD:The Supreme Court held that private respondents are illegally

dismissed. In termination cases, the burden of proving that the dismissal of the employees was for a valid and authorized cause rests on the employer. It was incumbent upon the petitioner to show by substantial evidence that the termination of the employees was validly made and upon failure to discharge that duty would mean that the dismissal is not justified and therefore illegal. On the other hand, abandonment as a just and valid ground for dismissal requires the deliberate, unjustified refusal of the employee to resume his employment. Mere absence or failure to report for work, after notice to return is not enough to amount such abandonment. For a valid finding of abandonment two factors must be present: the failure to report for work without valid or justifiable reason and clear intention to severe employer employee relationship. Private respondents were asked to relinquish their assigned buses and from that date forward they were not given bus assignments. Thus under the circumstances private respondent’s absences are supported with valid reason and that they never intended to severe their employer employee relationship. Private respondents are illegally dismissed.

6. AGORILLA

DE PAUL/KING PHILIP CUSTOMS TAILOR, AND/OR MILAGROS CHUAKAY and WILLIAM GO, petitioners,

vs.THE NATIONAL LABOR RELATIONS COMMISSION (NLRC), et al.

Facts:Private respondents are employees of petitioners. They formed

a labor organization, affiliating themselves with Federation of Free Workers, calling themselves FFW-kapatirangManggagawasa De Paul/King Philip customs Tailor. On march 1993, the union filed a notice of strike due to unfair labor practice. On 6 April 1993, the union president, private respondent Victoriano Santos, stopped working. This was followed by the "walk out" of the other private respondents from their jobs on 12 April 1993.

On 13 May 1993, the union filed against the petitioners a case for unfair labor practice, illegal dismissal and non-payment of overtime pay before the NLRC National Capital Region Arbitration Branch.On 21 June 1993, private respondents disaffiliated from the FFW. The disaffiliation was caused by the failure of FFW to send a representative in two hearings of the case of the private respondents before the labor arbiter.

Private respondents claimed that they were previously warned by the petitioners not to organize a union, nor be a member of the same. Otherwise, they will be dismissed. Nevertheless, they still formed the said union.

Petitioners denied dismissing the respondents, arguing further that the respondents walked out from their jobs to prepare for a strike to extort money from them. Petitioners contend that they sent notices to respondents to return to work, save two workers who refused to accept the same.

Respondents denied having received any notice to return to work. They alleged that they were even prevented to enter the premises of the work place and were threatened by “hired” policemen who possessed fake warrants of arrest.

The labor arbiter dismissed the complaint of the respondents for illegal dismissal. Appeal, however, was granted to respondents, making the petitioners liable for illegal dismissal. Thus, requiring the petitioners to pay back wages plus actual reinstatement of the dismissed employees.

Issue:W/N the petitioners are liable for illegal dismissal.

Held:Yes. It must be stressed that abandonment of work does not per

se sever the employer-employee relationship. It is merely a form of neglect of duty, which is in turn a just cause for termination of employment. The operative act that will ultimately put an end to this relationship is the dismissal of the employee after complying with the procedure prescribed by law. If the employer does not follow this procedure, there is illegal dismissal.The findings negate the claim interposed by the petitioners that private respondents abandoned their jobs. Abandonment, as a just and valid ground for dismissal means the deliberate and unjustified refusal of an employee to resume his employment. The burden of proof is the employer to show an unequivocal intent on the part of the employee to discontinue employment. The intent cannot be lightly inferred or legally presumed from certain ambivalent acts. For abandonment to be a valid ground for dismissal, two elements must be proved: the intention of an employee to abandon, coupled with an overt act from which it may be inferred that the employee has no more intent to resume his work.

7. BACALZO

STA CATALINA COLLEGE VS NLRC

FACTS:HilariaTercero was hired as a teacher in Sta Catalina College in

1955. She was granted a 1 year leave of absence without pay in 1970 for her to take care of her ill mother. She, however, failed to report back to work after the expiration of her leave. She instead was employed as a teacher at the San Pedro Parochial School during school year 1980-1981 and at the Liceo de San Pedro, Biñan,Laguna during school year 1981-1982.

In 1982 she reapplied and was accepted to teach at Sta Catalina College and on 1997 was awarded a Plaque of Appreciation for 30 years of service. Upon her reaching the compulsory retirement age of 65, the school computed her benefits on the basis of the 15 years of service from 1982 to 1997. The school claims that Tercero abandoned her employment when she did not report back to work at the expiration of her 1 year leave of absence in 1971. Tercero, however, insisted the computation be based on her 30 years of service. For failing to reach an agreement, Tercero filed a complaint against the school. The Labor Arbiter ruled in favor of the school but was reversed by the NLRC.

Petitioner brought the case to the Court of Appeals which affirmed the ruling of the NLRC. The CA held that petitioners failed to prove that Hilaria had abandoned her position in 1970, as petitioner school even gave her a Plaque of Appreciation for thirty years of service "precisely because of her thirty year continuous service," and that petitioner school never sent notice to her dismissing her, hence, the employer-employee relationship was not severed and, therefore, her services for petitioner school during the period from 1955-1970 should be credited in the computation of her retirement benefits.

ISSUE: WON Tercero abandoned her work.

HELD:YES.For a valid finding of abandonment, two factors must be

present: (1) the failure to report for work, or absence without valid or justifiable reason; and (2) a clear intention to sever employer-employee relationship, with the second element as the more determinative factor, being manifested by some overt acts.

It is not disputed that the approved one year leave of absence without pay of Hilaria expired in 1971, without her, it bears repeating, requesting for extension thereof or notifying petitioner school if and when she would resume teaching. Nor is it disputed that she was rehired only in 1982 after filing anew an application, without her proffering any explanation for her more than a decade of absence.Under the circumstances, abandonment of work at petitioner school in 1971 is indubitably manifest. Abandonment of work being a just cause for terminating the services of Hilaria, petitioner school was under no obligation to serve a written notice to her.

As Hilaria was considered a new employee when she rejoined petitioner school upon re-applying in 1982, her retirement benefits should thus be computed only on the basis of her years of service from 1982 to 1997.

8. OLORES

PAZ MARTIN JO AND CESAR JO V. NLRC AND PETER MAJILAPREPARED BY EMMANUEL M. OLORES

FACTS:1. 1970. Peter Majila was a barber in Dina’s Barbershop2. Dina Tan, the owner of Dina’s Barbershop sold the Barbershop

to Paz Martin JO and Cesar JO3. Paz JO and Cesar JO, being the new owner of Dina’s

Barbershop, absorbed all the employees of Dina’s Barbershop. This includes Peter Mejila.

4. Winfield Barbershop is the new name of Dina’s Barbershop. Winfield is now owned by Paz Jo and Cesar JO

5. Peter Majila was paid on a commission basis. 2/3 to the Barber, 1/3 to the owner.

6. 1977. Peter was designated as caretaker of the shop because he became unfit. As caretaker, he was paid a fixed monthly honorarium

7. Peter Mejila was also asked to do other tasks i.e. to report to the owner the malfunctioning aircondition, to call laundry woman to wash dirty linen, to recommend applicants for interview and hiring, attend to other needs of the shop.

8. 1986. Winfield Barbershop closed. Reason: Building was demolished.

9. Later, a new barbershop opened. It is named as Cesar’s Palace Barbershop.

10. 1992. Peter Mejila had an altercation with his co-barber named Jorge Tinoy.

11. Peter Mejila filed before the NLRC for mediation.12. The Labor Arbiterfound out that the dispute was not between

Paz Jo and Peter Mejila but between Peter and his co-employee.Further, Peter Mejila demanded a separation pay.

13. 1993. Peter Mejila turned over the duplicate keys to the cashier and took away his belongings.

14. Peter Mejilabagan working at a newly opened barbershop named Goldilocks Barbershop.

15. Peter Mejila filed before the NLRC an illegal dismissal case against Paz Jo and Cesar Jo.

16. The complaint prayed for payment of separation pay and other monetary benefits, attorney’s fees and other damages.

DECISION OF LABOR ARBITER AND NLRC17. Labor Arbiter’s Decision. (a) There is an employer-employee

relationship. (b) Peter Mejila left the job voluntarily because of his misunderstanding with his co-employee.

18. NLRC’s Decision. (a) There is an employer-employee relationship. (b) Peter Mejila was illegally dismissed. NLRC ordered the payment of the following:1. Backwages2. 13th Month Pay – Peter was not only paid on a commission

basis but he also workedas caretaker or paid on a fixed monthly honorarium

3. Separation Pay – those paid on a commission basis are also entitled to separation pay

4. Attorney’s fees.19. [CA’s Decision. WALA probably because this case was decided

on 1994, when the 1997 Revised Rules of Court was not yet in effect. Probably.

ISSUES RAISED BEFORE THE SUPREME COURT

1. Whether there is an employer-employee relationship2. Whether Peter Mejila abandoned his employment.

DECISION HELD BY THE SUPREME COURT1. Yes, there is an employer-employee relationship. The

fourfold test was satisfieda. Selection and engagement of workersb. Power of Dismissalc. Payment of Wagesd. Power of Control.

2. Yes, Peter Mejila has abandoned his work. Evidence: Circumstantial.a. He bragged his intention to quit his workb. He surrendered shop keys and took away all his things

from the shop.c. He did not anymore report for work without giving any

valid reason.d. He immediately sought regular employment in another

barbershop despite assurance that he could remain in Paz’s employ.

e. He filed for illegal dismissal without praying for reinstatement.

9. RIVERA

A’ Prime Security Services Inc. vs National Labor Relation Commission

G.R. No. 93476 March 19, 1993

Facts:Certain Florentino Lising, the herein private respondent, was an

employee of the herein petitioner security agency (APPSI).Regional Relay Facilities, a U.S. Mission Facility was one of its client and located at Angles City where the private respondent was assigned as shift supervisor. During its service, sometime on Sept. 1988 Assistant Region Security of the U.S Embassy wrote a letter in favor of the agency requesting for the relief from service of the private respondent on the ground that he was caught sleeping while on duty for at least (4)four times.After conducting an investigation, the agency terminated the service and assignment of the respondent on that client. After learning the same, the respondent no longer reported for work but instead he was declared on AWOL.The employer wrote him that if he will not go back for work, he will be dismissed. Instead of complying with such order, the respondent filed an action for illegal dismissal and prayed for a separation pay and full back wages. Because of his continued absence, he was dismissed.s

Issues: 1. Is the respondent Illegally dismissed ? 2. Is he entitled for separation pay?

Held:1. The respondent was not illegally dismissed. His dismissal is for valid cause. Based on the facts, what is terminated is his assignment only in the U.S Facility and not his employment with the APPSI and it is without prejudice for reassignment to another or other client.It is his own act, his continued absence without official leave, that causes his termination.

Under such circumstances, the employer is justified in terminating his employment due to his own abandonment.2, He is not entitled for separation pay. Under the labor code, employee is entitled only for separation pay if his dismissal or termination is due to retrenchment, closure of the business or disease.

10. ROXAS

11. ALOTA

Wenphil Corporation vs NLRC

Facts:Roberto Mallare was hired by petitioner on January 18, 1984 as

a crew member at its Cubao Branch. He thereafter became the assistant head of the Backroom department of the same branch. At about 2:30 P.M. on May 20, 1985 private respondent had an altercation with a co-employee, Job Barrameda, as a result of which he and Barrameda were suspended on the following morning and in the afternoon of the same day a memorandum was issued by the Operations Manager advising private respondent of his dismissal from the service in accordance with their Personnel Manual. The notice of dismissal was served on private respondent on May 25, 1985. Roberto Mallare filed a complaint against petitioner for unfair labor practice, illegal suspension and illegal dismissal.

A decision was rendered by the Labor Arbiter on December 3, 1986 dismissing the complaint for lack of merit.

National Labor Relations Commission (NLRC) wherein in due course a decision was rendered on October 16, 1987 setting aside the appealed decision and ordering the reinstatement of private respondent to his former position without loss of seniority and other related benefits and one (1) year backwages without qualification and deduction.

Issue:Whether or not, Mallare was illegally dismissed and his right to due process was infringed when he was suspended and immediately terminated without investigation as to the event?

Ruling:It is a matter of fact that when the private respondent filed a

complaint against petitioner he was afforded the right to an investigation by the labor arbiter. He presented his position paper as did the petitioner. If no hearing was had, it was the fault of private respondent as his counsel failed to appear at the scheduled hearings. The labor arbiter concluded that the dismissal of private respondent

was for just cause. He was found guilty of grave misconduct and insubordination. Under the circumstances the dismissal of the private respondent for just cause should be maintained. He has no right to return to his former employer.

However, the petitioner must nevertheless be held to account for failure to extend to private respondent his right to an investigation before causing his dismissal. The rule is explicit as above discussed. The dismissal of an employee must be for just or authorized cause and after due process. 5 Petitioner committed an infraction of the second requirement. Thus, it must be imposed a sanction for its failure to give a formal notice and conduct an investigation as required by law before dismissing petitioner from employment.

12. SALVADOR

JAKA FOOD PROCESSING CORPORATIONvs.

PACOT, PAROHINOG, BISNAR, DOMINGO, LESCANO and CAGABCAB

[G.R. No. 151378.  March 28, 2005] FACTS:Private respondents were hired by JAKA but their services were eventually terminated on August 29, 1997 due to “dire financial straits, It is not disputed by the parties that the termination was effected without JAKA complying with the requirement under Article 283 of the Labor Code regarding the service of a written notice upon the employees and the Department of Labor and Employment at least one (1) month before the intended date of termination.Respondents filed complaints at Regional Arbitration Branch NLRC for illegal dismissal, underpayment of wages and non-payment of service incentive leave and 13th month pay    against JAKA and its HRD Manager, Rosana Castelo.

      The Labor Arbiter rendered a decision declaring the

termination illegal and ordering JAKA and its HRD Manager to reinstate respondents with full backwages, and separation pay if reinstatement is not possible.There from, JAKA appealed to the NLRC,

      August 30, 1999 decision: Affirmed in toto that of the Labor

Arbiter’s decision.JAKA filed a motion for reconsideration:. 

      NLRC’s decision on January 28, 2000: It reversed and set

aside the awards of backwages and  service incentive leave pay.  Each of the complainants-appellees shall be entitled to a separation pay equivalent to one month and the sum of P2,000.00 as indemnification for its failure to observe due process in effecting the retrenchment.JAKA filed again motion for reconsideration:

      MR denied  by the NLRC in its resolution of April 28, 2000.

Respondents filed a petition for certiorari to the Court of Appeals.

      NLRC’s decision on January 28, 2000 is reversed and set

aside. CA ordered JAKA to pay petitioners separation pay equivalent to one (1) month salary, the proportionate 13th month pay and  full backwages from the time their employment was terminated on August 29, 1997 up to the time the Decision herein becomes final.JAKA moved for motion for reconsideration.

      Motion was denied in its resolution of January 8, 2002.

JAKA assailed and sought to be set aside in this appeal by way of a petition for review on certiorari under rule 45 of the Rules of Court CA’s decision dated 16 November 2001 and the resolution dated 8 January 2002.

ISSUE: What are the legal implications of a situation where an employee is dismissed for cause but such dismissal was effected without the employer’s compliance with the notice requirement under the Labor Code? RULING:Court ruled that there was ground for respondents’ dismissal, i.e., retrenchment, which is one of the authorized causes enumerated under Article 283 of the Labor Code but, it is established that JAKA failed to comply with the notice requirement under the same Article. Considering the factual circumstances, the court deemed it proper to fix the indemnity at P50, 000.00, as nominal damages for non-compliance with statutory due process.The Court of Appeals have been in error when it ordered JAKA to pay respondents separation pay equivalent to one (1) month salary for every year of service. “In all cases of business closure or cessation of operation or undertaking of the employer, the affected employee is entitled to separation pay. This is consistent with the state policy of treating labor as a primary social economic force, affording full protection to its rights as well as its welfare. The exception is when the closure of business or cessation of operations is due to serious business losses or financial reverses; duly proved, in which case, the right of affected employees to separation pay is lost for obvious reasons.” 

13. TARIGA

MA. LIZA DE GUZMAN, petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and REX BOOKSTORE,

INC., respondents.

DAVIDE, JR., C.J.:

Facts:Petitioner Ma. Liza de Guzman (hereafter DE GUZMAN) was employed by private respondent Rex Bookstore, Inc. (hereafter REX) on 17 April 1989 as cashier.  On 18 September 1995 DE GUZMAN was dismissed for alleged dereliction of duty in violation of REX’s rules and regulations.  At the time of her dismissal, she was receiving a daily wage of P164.25.De GUZMAN’s dismissal stemmed from an incident on 5 August 1995 when she made a double payment to a book agent.  Instead of paying the agent the amount of two thousand seven hundred sixty pesos (P2,760.00) for a single transaction, she paid the amount of five thousand five hundred twenty pesos (P5,520.00).  Thus, in its memorandum of 12 August 1995, REX ordered DE GUZMAN to explain within 48 hours why she should not be penalized for dereliction of duty pursuant to Section 1A, Article III of REX’s rules and regulations and suspended her for thirty (30) days beginning 14 August 1995 pending the investigation of the case against her.[3]

In compliance with the aforesaid memorandum, DE GUZMAN submitted to REX her explanation dated 14 August 1995.[4] She alleged therein that since she was hired in 1989 it has been the company’s procedure in paying its freelance agents that the sales clerk will make two copies of the unofficial receipt of payments, one given to REX and the other to the agent.  However, on 5 August 1995 the sales clerk, Emmie Idio, issued to a sales agent two unofficial receipts for the same transaction.  Both receipts bore the identical amount of two thousand seven hundred sixty pesos (P2,760.00).  The agent then presented both receipts to DE GUZMAN.  Noting the two receipts, DE GUZMAN asked the agent whether he made two deliveries on that day.  When the agent answered in the affirmative, DE GUZMAN paid the agent five

thousand five hundred twenty pesos (P5,520.00) corresponding to the total amount of the receipts.  She claimed that she failed and did not have the opportunity to verify from Emmie Idio about the issuance of the two receipts because on that day there were many customers.DE GUZMAN contended that she cannot be held responsible for the overpayment as she merely followed the usual procedure in the company.  It should be the sales clerk, Emmie Idion, who should be held responsible for the issuance to the agent of two receipts.Not satisfied with her explanation, REX, through Roque C. Solomon of its Personnel Department, served on DE GUZMAN on 18 September 1995 a confidential memorandum informing her of the termination of her services.  The memorandum reads:The decision on your case has been released under RBS-PRES 95-001 dated September 14, 1995 the dispositive portion of which reads as follows:“…  Management is left with no alternative but to affirm the recommendation of the Fact Finding Committee not only to dismiss her (referring to Miss Liza de Guzman) from the Company but to seek recovery of the amount of P2,760.00 if not intentionally misappropriated.”Earlier, on 5 August 1995, a day after she was placed under preventive suspension, DE GUZMAN filed a complaint for illegal suspension with the National Capital Region-Arbitration Branch of the NLRC.   Immediately after her dismissal from the service, DE GUZMAN amended her complaint to include illegal dismissal and claims for thirteenth-month pay and attorney’s fees.[7] The complaint was further amended on 18 September 1995 and 10 October 1995 to include claims for payment of actual, moral and exemplary damages.[8]

In its Answer to the complaint, REX alleged that the purported defect in the disbursement procedure as claimed by DE GUZMAN cannot be used by her as an excuse for her negligence and that the payment made to the agent without proper authorization from the supervisor violated REX’s standard operating policy that “no disbursement of fund may be made by a cashier without the approval of his/her immediate supervisor.”On 17 December 1996, Labor Arbiter Salimathar B. Nambi rendered a decision[9] in favor of DE GUZMAN, the dispositive portion of which

reads: to reinstate complainant without loss of seniority rights and other privileges and to pay complainant her full back wages inclusive of allowances, computed from the time of her termination (September 14, 1995) up to the time of her actual reinstatement.REX appealed the decision to the NLRC.On 20 May 1997, the NLRC rendered a decision[10] affirming with modification the decision of the Labor Arbiter by ordering the payment of separation pay in lieu of reinstatement and deleting the award of back wages and attorney’s fee.  The portion of the decision reads:PREMISES CONSIDERED, the Decision dated December 17, 1996 is hereby MODIFIED by ordering respondent to pay complainant the amount of thirty four thousand one hundred sixty four pesos (P34,164,00) as separation pay.SO ORDERED.In deleting the award of back wages, the NLRC rationalized as follows:We disagree with the Labor Arbiter’s finding that respondent failed to substantiate complainant’s negligence.  As correctly argued by respondent, complainant herself admitted that she failed to inquire the veracity of the two unofficial receipts of respondent’s position paper.  That, there were many customers on that day is not a valid excuse for her not to verify said receipts from the sales clerk who issued the same or from her immediate supervisor.However, while we find that complainant was negligent it cannot be considered gross as to warrant her termination from the service.  As the facts of the case show, the error committed was not the fault of the complainant alone.  The sales clerk who issued two (2) unofficial receipts to the agent, contrary to the usual procedure of the company, is also partly to be blamed in the incident.  Further, the agent also made misrepresentation to the complainant.Taking into consideration the factual circumstances of the case, the period within which complainant was out of work shall be considered as her penalty.  Stated differently, she is not entitled to backwages.   In a Partial Motion for Reconsideration, DE GUZMAN asked for a modification of the decision to include payment of back wages.  The NLRC denied the motion in its resolution of 10 July 1997.[12]

Issue: DE GUZMAN then filed the instant special civil action.  

1.)Whether or not the NLRC committed grave abuse of discretion amounting to lack or excess of jurisdiction when it modified the Labor Arbiter’s decision by deleting the grant of back wages as penalty for her negligent act despite the affirmance of the Labor Arbiter’s finding that her dismissal was illegal.  2.)Whether the deletion of backwages was too harsh and grossly disproportionate to the infraction she committed.

Held: We find merit in this petition.1.)The general rule is that where there is a finding of illegal dismissal, an employee is entitled to reinstatement and to receive back wages from the date of his dismissal up to the time of his reinstatement without loss of seniority rights and, secondly, the payment of back wages corresponding to the period from his illegal dismissal up to actual reinstatement  These twin remedies of reinstatement and payment of back wages make whole the dismissed employee. These two remedies give meaning and substance to the constitutional right of labor to security of tenure.[14]

However, the two remedies are distinct and separate.  Though the grant of reinstatement commonly carries with it an award of back wages, the inappropriateness or non-availability of one does not carry with it the inappropriateness or non-availability of the other. The award of one is not a condition precedent to an award of another.  Back wages may be ordered without ordering reinstatement; conversely, reinstatement may be ordered without payment of back wages.[17]

Thus, in a number of cases,[18] the Court, despite its order of reinstatement or award of separation pay in lieu of reinstatement deemed it appropriate not to award back wages as penalty for the misconduct or infractions committed by the employee.In the case at bar, we hold that the factual circumstances obtaining in the case at bar do not warrant exception to the general principle that an employee is entitled to reinstatement and to receive back wages where there is a finding of illegal dismissal.There is here no deliberate intent on the part of DE GUZMAN to prejudice the company.  It can be safely said that at most, DE GUZMAN committed merely an error of judgment in paying the sales agent without verifying the authenticity of the receipts. Contrary to the

claim of REX, there was no standard operating policy that “no disbursement of fund may be made by a cashier without the approval of his/her immediate supervisor.” Rex’s own witness, Emmie Idio, the clerk who issued the receipts, stated in her affidavit that “it has always been the procedure at REX Bookstore, Recto Branch, that when an outside sales agent does not have a receipt of his own, the Bookstore, through its sales clerk prepares two (2) identical copies of an unofficial receipt evidencing the payment of the books; one copy to be retained by the Bookstore and the other to be issued to the agent upon payment by the cashier.”[19] Therefore, it is clear that in the payment of outside sales agent prior approval of immediate superior is not required.More importantly, this was the first time that DE GUZMAN made an overpayment, as correctly observed by respondent NLRC, she was not solely responsible for the said incident.  The fact of overpayment was primarily attributable to the sales clerk who issued two unofficial receipts to the sales agent in violation of standard company policy, as well as the misrepresentation committed by the book agent that the two receipts covered two separate transactions.DE GUZMAN’s good faith is further buttressed by the fact that the two unofficial receipts which served as basis for payment were retained in the company’s file together with the receipts of payment and were both marked as paid.[20] In fact, REX can demand from the book agent, who is a regular client, the return of the overpaid amount.The previous offense that DE GUZMAN had committed on 3 July 1993 for willful refusal to perform one’s assigned work or to comply with instruction of supervisor, could no longer be utilized to aggravate the present offense.[21] Her previous offense was an entirely separate and distinct violation of company rules.  The correct rule is that previous infractions may be used as justification for an employee’s dismissal from work in connection with a subsequent similar offense.[22]

2.)In determining the penalty to be imposed on an erring employee, due consideration must be given to the employee’s length of service and the number of violations he committed during his employ.[23] In a similar case, the Court ruled that dismissal is too harsh a penalty for the inefficiency of an employee where the offense was the first to be committed by an employee and she did not do it with malice, aside from

the fact that she was not solely responsible for the incidents.  The suspension of the employee would have sufficed.[24]

On the basis of the foregoing, the conclusion is inevitable that the total withholding of full back wages is too harsh and severely disproportionate to the offense committed by DE GUZMAN.  In all cases where punishment of any sort is imposed, the penalty shall be commensurate with the nature and gravity of the offense charged, taking into consideration the varying circumstances surrounding each particular case.  The offender shall, however, be given the benefit of all doubts that may exist as to his responsibility for the offense charged.  This dictum is in consonance with the policy of the State, as embodied in the Constitution, to resolve doubts in favor of labor.[25]

As to the back wages, settled is the rule that the amount thereof to be awarded to an illegally dismissed employee must be computed from the time the compensation was withheld up to the time of actual reinstatement, without deduction of earnings derived elsewhere pending the resolution of the case.[31] But since in this case, separation pay was awarded in lieu of reinstatement, the back wages must be computed from the time of DE GUZMAN’s illegal dismissal until the finality of this decision.[32]

14. TARIGA

GLOBE TELECOM, INC., DELFIN LAZARO, JR., and ROBERTO GALANG, petitioners, vs. JOAN FLORENDO-FLORES, respondent.

BELLOSILLO, J.:FACTS:

Petitioner GLOBE TELECOM, INC. (GLOBE) is a corporation duly organized and existing under the laws of the Philippines.  Petitioners  Delfin  Lazaro  Jr.  was its President and Roberto Galang its former Director-Regional Sales.  Respondent Joan Florendo-Flores was the Senior Account Manager for Northern Luzon.

On 1 July 1998 Joan Florendo-Flores filed with the Regional Arbitration Branch of the National Labor Relations Commission (NLRC) an amended complaint for constructive dismissal against GLOBE, Lazaro, Galang, and Cacholo M. Santos, her immediate superior, Luzon Head-Regional Sales.  In her affidavit submitted as evidence during the arbitration proceedings, Florendo-Flores bared that Cacholo M. Santos never accomplished and submitted her performance evaluation report thereby depriving her of salary increases, bonuses and other incentives which other employees of the same rank had been receiving; reduced her to a house-to-house selling agent (person-to-person sales agent or direct sales agent) of company products ("handyphone") despite her rank as supervisor of company dealers and agents; never supported her in the sales programs and recommendations she presented; and, withheld all her other benefits, i.e., gasoline allowance, per diems, representation allowance, and car maintenance, to her extreme pain and humiliation.[3]

GLOBE and its co-petitioners claimed that after receiving her salary in the second week of May 1998 Florendo-Flores went AWOL (Absent Without Leave) without signifying through letter or any other means that she was resigning from her position; that notwithstanding her absence and the filing of her case, respondent  Florendo-Flores'  employment  was  not terminated as shown by the fact that salary was still provided her until July 1998  to  be released upon her presentation of the attendance-record sheet indicating that she already returned and reported for work; that she continued to have the use a of

company car and company "handyphone" unit; that she was replaced only when her absence became indefinite and intolerable as the marketing operations in Northern Luzon began to suffer; that during the pre-trial conference it was learned that Florendo-Flores' complaint rested on her alleged personal and private disagreement with her immediate superior Cacholo M. Santos; that there was no official act from GLOBE or from other officers of the company, including respondents Lazaro and Galang, which called for Florendo-Flores' termination, diminution in rank, seniority and benefits, or would imply, even remotely, any of the same; and, that Florendo-Flores filed the complaint without going through the grievance process of GLOBE's Human Resources Department and without informing its officers of her problems with Cacholo M. Santos.

Labor Arbiter Monroe C. Tabingan declared Florendo-Flores to have been illegally dismissed and ordered petitioners to reinstate her without loss of seniority rights and full benefits; and to pay full back wages, inclusive of basic pay, allowances and bonuses as prayed for in the complaint amounting to P307,625.00, exemplary damages in the sum of P200,000.00, and ten percent (10%) of the total monetary award as attorney's fees.   However, the Labor Arbiter set aside the claim of abandonment as the company failed to send the requisite notice to Florendo-Flores,[4] hence, there was no adherence  to procedural due process.  Although he recognized that the problem brewed and eventually boiled over due to the acts of Cacholo M. Santos, GLOBE's former Head of Regional Sales, Luzon Area, the Labor Arbiter found the company negligent in monitoring all its key personnel, and thus assessed against it exemplary damages at the same time deleting actual and moral damages.[5]

Petitioners appealed the decision to the NLRC which modified the judgment of the Labor Arbiter.  The NLRC ruled that petitioners did not dismiss Florendo-Flores but that the latter actually abandoned her employment because of a disagreement with her immediate superior which she failed to bring to the attention of GLOBE and its officers, particularly petitioners Lazaro and Galang.[6] However, the NLRC declared that if only as an act of gracefor the latter's past services with the company, GLOBE, Lazaro and Galang should be held accountable for the back wages of Florendo-Flores amounting to P307,625.00

minus the amount of P63,000.00 for the value of the company car in Florendo-Flores' possession, or the net amount of  P244,625.00.[7]

Both parties elevated the NLRC decision to the Court of Appeals, each side through a petition for certiorari.  In its Resolution of 2 September 2000.

In its Decision of 25 May 2001 the Court of Appeals found that Florendo-Flores was constructively dismissed and that payment of back wages and damages was in order.  On 21 June 2001 GLOBE, Lazaro and Galang filed a motion for reconsideration but the motion was denied in the appellate court's Resolution of 19 September 2001.Petitioners( Globe) filed a special civil action of certiorari.

Issue:1. w/n Florendo-flores(respondent) was constructively dismissed by Globe & w/n Globe is liable for the acts of its employee( Cacholo M.Santos).2. w/n Respondent abandoned her work.3. w/n the reward of backwages in the case at bar is a mere “ act of grace.”

Held:1.) Yes, the respondent was constructively dismissed from service. Constructive dismissal exists where there is cessation of work because "continued employment is rendered impossible, unreasonable or unlikely, as an offer involving  a  demotion in rank and a diminution in pay."[16] All these are discernible in respondent's situation.  She was singularly edged out of employment by the unbearable or undesirable treatment she received from her immediate superior Cacholo M. Santos who discriminated against her without reason - not preparing and submitting her performance evaluation report that would have been the basis for her increased salary; not forwarding her project proposals to management that would have been the source of commendation; diminishing her supervisor stature by assigning her to house-to-house sales or direct sales; and withholding from her the enjoyment of bonuses, allowances and other similar benefits that were necessary for her efficient sales performance.  Although respondent continued to have the rank of a supervisor, her functions were reduced to a mere

house-to-house sales agent or direct sales agent.  This was tantamount to a demotion.  She might not have suffered any diminution in her basic salary but petitioners did not dispute her allegation that she was deprived of all benefits due to another of her rank and position, benefits which she apparently used to receive.

Far from pointing to Santos alone as the source of her woes, respondent attributes her degraded state to petitioners as well.  Florendo-Flores cited petitioners' apathy or indifference to her plight as she was twice left out in a salary increase in August 1997 and May 1998, without petitioners giving her any reason.[17] It eludes belief that petitioners were entirely in the dark as the salary increases were granted to all employees   across-the-board but respondent was the only one left receiving a P19,100.00 per month basic salary while the rest received a basic salary of almost P35,000.00 per month.[18] It is highly improbable that the exclusion of respondent had escaped petitioners' notice.  The absence of an evaluation report from Santos should have been noted by petitioners and looked into for proper action to have been made.  If a salary increase was unwarranted, then it should have been sufficiently explained by petitioners to respondent.

Petitioners argue that respondent Florendo-Flores could have brought to their attention the deplorable treatment she received from Santos by resorting to the company's grievance machinery so that the problems in her relationship with Santos could then have been easily ironed out, but she did not.  It remains uncontroverted that respondent had inquired from petitioners the reason why her other benefits had been withheld and sought clarification for her undeserved treatment but petitioner company and Santos remained mum.[19]

Thus, contrary to the observation of the NLRC, the dispute was not a mere private spat between respondent Florendo-Flores and her immediate superior Santos.  Granting that this was the case, it had exceeded the periphery of simple personal affairs that overflowed into the realm of respondent's employment.

Respondent narrates that sometime in June 1997 Santos wrote her a baseless accusatory letter, and he together with GLOBE Sales Director Roberto Galang, one of  petitioners herein, verbally told her that she should resign from her job, but she refused.[20] Thereafter, in July 1997 and the months subsequent thereto all of respondent's other

benefits were withheld without any reason nor explanation from the company.[21] Even as petitioners endeavored to lay the blame on Santos alone, he would not have been able to single-handedly mastermind the entire affair as to influence Sales Director Galang and manipulate the payroll.  It only stands to reason that Santos was acting pursuant to a management directive, or if not, then petitioners had condoned it, or at the very least, were negligent in supervising all of their employees.   As aptly observed by the Labor Arbiter -

x x x x  it would appear however that the respondent company was negligent in monitoring all its key personnel, which includes the inter-personal relations of each and every key segment of the corporate machinery.  For such, it must be assessed with just and reasonable exemplary damages.[22]

2.)No, The unauthorized absence of respondent should not lead to the drastic conclusion that she had chosen to abandon her work.  To constitute abandonment, there must be: (a) failure to report for work or absence without valid or justifiable reason; and, (b) a clear intention, as manifested by some overt act, to sever the employer-employee relationship,[23] requisites that are negated by the immediate filing by respondent Florendo-Flores of a complaint for constructive dismissal against petitioners.  A charge of abandonment is totally inconsistent with the  immediate  filing  of  a complaint for illegal dismissal; more so, when it includes a prayer for reinstatement.[24]

The reduction of respondent's functions which were originally supervisory in nature to a mere house-to-house sales agent or direct sales agent constitutes a demotion in rank.  For this act of illegal dismissal, she deserves no less than full back wages .She shall continue to enjoy her benefits, privileges and incentives including the use of the company car and  "handyphone."

In constructive dismissal, the employer has the burden of proving that the transfer and demotion of an employee are for just and valid grounds such as genuine business necessity.[26] 

3.)No, It should be noted that the award of back wages in the instant case is justified upon the finding of illegal dismissal, and not under the principle of "act of grace" for past services rendered.  There are

occasions when the Court exercises liberality in granting financial awards to employees, but even then they contemplate only the award of separation pay and/or financial assistance, and only as a measure of social justice when the circumstances of the case so warrant, such as instances of valid dismissal for causes other than serious misconduct or those reflecting on the employees' moral character. An award of actual and moral damages is not proper as the dismissal is not shown to be attended by bad faith, or was oppressive to labor, or done in a manner contrary to morals, good customs or public policy.[28] Exemplary damages are likewise not proper as these are imposed only if moral, temperate, liquidated or compensatory damages are awarded.[29]

WHEREFORE, the judgment appealed from is  MODIFIED.   Petitioners Globe Telecom, Inc., Delfin Lazaro, Jr., and Roberto Galang are ordered to pay respondent Joan Florendo-Flores full back wages from the time she was constructively dismissed on 15 May 1998 until the date of her effective reinstatement, without qualification or deduction.  Accordingly, petitioners are ordered to cause the immediate reinstatement of respondent to her former position, without loss of seniority rights and other benefits.

15. SALVADOR

UNIWIDE SALES WAREHOUSE CLUB and VIVIAN M. APDUHAN,vs.

NATIONAL LABOR RELATIONS COMMISSION and AMALIA P. KAWADA

 FACTS:

Amalia P. Kawada started her employment with Uniwide sometime in 1981 as a saleslady. Over the years, she worked herself within corporate ladder until she attained the rank of Full Assistant Store Manager in 1995.

As a Full Assistant Store Manager, her primary function was to manage and oversee the operation of the Fashion and Personal Care, GSR Toys, and Home Furnishing Departments of to ensure its continuous profitability so as to see to it that the established company policies and procedures were properly complied with and implemented in her departments.

v  Sometime in 1998, Uniwide received reports from the other employees regarding some problems in the departments managed by the private respondent. 

v  March 15, 1998, Uniwide, through Store Manager Apduhan, issued a Memo addressed to Amalia summarizing various reported incidents signifying unsatisfactory performance by Amalia..Uniwide asked her for concrete plans on how she can effectively perform her job. 

v  She answered all the allegations contained in the March 15, 1998 Memorandum but Apduhan was not satisfied with her answers which were all hypothetical and did not answer directly the allegations attributed to her.

v  On June 30, 1998, Apduhan sent another Memo seeking from the private respondent an explanation regarding the incidents reported by Uniwide employees and security personnel for alleged irregularities committed by the private respondent

v  In a letter dated July 9, 1998, private respondent answered the allegations made against her.

v  On July 27, 1998, private respondent sought medical help from the company physician, Dr. Zambrano. She was advised her to take five days sick leave. But on July 30, 1998, Amalia  obtained from Dr. Zambrano a medical certificate of fitness to work but with a wrong surname  which she presented to Apduhan the following day, 

v  Thereafter, private respondent claimed that Apduhan shouted at her and prevented her from resuming work because she was not the person referred to in the medical certificate

v  When she refused to give the certification, private respondent claims that Apduhan once again shouted at her which caused her hypertension to recur and eventually caused her to collapse.

v  On August 1, 1998, Amalia reported the confrontation between her and Apduhan to the Central Police District. Thereafter, her counsel sent a letter dated August 1, 1998 to Apduhan stating that the latter's alleged continued harassment and vexation against private respondent created a hostile work environment which had become life threatening, and that they had no alternative but to bring the matter to the proper forum.

v   On August 2, 1998, Apduhan issued a Memo, advising the latter of a hearing scheduled on August 12, 1998 to be held at the Uniwide Office in Quirino Highway, and warning her that failure to appear shall constitute as waiver and the case shall be submitted for decision based on available papers and evidence.On August 3, 1998, private respondent filed a case for illegal dismissal before the Labor Arbiter.

v  Amalia’s counsel sent a letter dated August 8, 1998 to Apduhan claiming that the August 2, 1998 Memorandum was a mere afterthought, in an attempt to justify private respondent's dismissal; and

that on August 3, 1998, private respondent had already filed charges against Uniwide and Apduhan.

v  On August 8, 1998, Apduhan sent a letter addressed to private respondent, advising private respondent to report for work, as she had been absent since August 1, 1998; and warning her that upon her failure to do so, she shall be considered to have abandoned her job.

v  On September 1, 1998, Apduhan issued a Memo stating that since private respondent was unable to attend the scheduled August 12, 1998 hearing, the case was evaluated on the basis of the evidence on record That  due to her violations, Uniwide has no other alternative but to terminate her service with the Company, effective September 1, 1998, on the grounds of violations of Company Rules, Abandonment of Work and loss of trust and confidence. On March 9, 1999 the LA dismissed the complaint for lack of merit.

Private respondent appealed the LA's decision to the National Labor Relations Commission (NLRC).

     

Decision dated December 27, 2000: the NLRC ruled in favor Amalia reversing and set aside the Labor Arbiter’s decision. Complainant is declared constructively dismissed by respondents. Respondents Uniwide and Apduhan are jointly and severally ordered to pay complainant the following : separation pay, backwages, moral damages, exemplary damages   and Attorney's fees . According to the NLRC, Amalia was subjected to inhuman and anti-social treatment oppressive to labor by receiving successive memoranda and that she was not afforded due process by petitioners.

Feeling aggrieved, UNIWIDE and Apduhan appealed to Court of Appeals.

      

Decision dated November 23, 2001: the CA affirmed in toto the NLRC’s decision. 

Uniwide and Apduhan filed a Petition for Review seeking to annul the Decision1 dated November 23, 2001 and the Resolution dated July 23, 2002 of the Court of Appeals: ISSUE: Whether or not Amalia Rawada was constructively dismissed by UNIWIDE and Apduhan. RULING:

No, she was not constructively dismissed because the Court finds the records bereft of evidence to substantiate the conclusions of the NLRC and the CA that private respondent was constructively dismissed from employment.

Case law defines constructive dismissal as a cessation of work because continued employment is rendered impossible, unreasonable or unlikely; when there is a demotion in rank or diminution in pay or both; or when a clear discrimination, insensibility, or disdain by an employer becomes unbearable to the employee.

The test of constructive dismissal is whether a reasonable person in the employee's position would have felt compelled to give up his position under the circumstances. It is an act amounting to dismissal but made to appear as if it were not. In fact, the employee who is constructively dismissed may be allowed to keep on coming to work. Constructive dismissal is therefore a dismissal in disguise.  v  In the present case, Amalia claimed that she had been subjected to constant harassment, ridicule and inhumane treatment by Apduhan. Supreme Court found the allegation of harassment was a specious statement which contains nothing but empty imputation of a fact that could hardly be given any evidentiary weight by this Court.

v  The sending of several memoranda addressed to a managerial concerning various violations of company rules and regulations, committed, should not be construed as a form of harassment but merely an exercise of management’s prerogative to discipline its employees. Precisely, petitioners gave private respondent successive memoranda to give the latter an opportunity to controvert the charges

against her.  Clearly, the memoranda are not forms of harassment, but petitioners’ compliance with the requirements of due process. 

v  Private respondent's bare allegations of constructive dismissal, when uncorroborated by the evidence on record, cannot be given credence Therefore, the Decision dated November 23, 2001 and Resolution dated July 23, 2002 of the CA together with the decision dated December 27, 2000 of the NLRC were reversed and set aside. The complaint of private respondent Amalia P. Kawada was dismissed,.

16. ALOTA

HYATT vs Catinoy

Facts:A petition for review under Rule 45 of the Rules of Court of the

Decision1 of the Court of Appeals dated December 27, 1999 in the case entitled "RUSTOM M. CATINOY VS. HYATT TAXI SERVICES INC., HYATT TAXI EMPLOYEE ASSOCIATION AND/OR MR. JAIME DUBLIN" that ruled against herein petitioner Hyatt Taxi Services, Inc. (hereafter petitioner) and of the Resolution dated May 11, 2000 denying the Motion for Reconsideration of petitioner.

Rustom Catinoy was hired on October 10, 1992 as a taxi driver by the Respondent Hyatt Taxi Services, Inc. On August 21, 1995 at about past 10:00 a.m., complainant went inside the union office and to his surprise found his drawer to have been forcibly opened. Catinoy asked Saturnino who opened his drawer. Saturnino replied that he was the one who forcibly opened the drawer to retrieve some documents particularly the list of union members. An argument ensued and a fist fight to which resulted to Catinoy being brought to the hospital. After due investigation by the company the two was indefinitely suspended. Aggrieved he filed a complaint before the NLRC.

On September 19, 1997, the Labor Arbiter rendered a Decision finding petitioner guilty of illegal preventive suspension, requiring it to pay the wage equivalent of the suspension, and further finding petitioner guilty of illegal constructive dismissal, ordering petitioner to reinstate respondent and to pay him backwages and attorney's fees.

The NLRC issued a Decision affirming the decision of the Arbitration Branch

Upon Catinoy’s motion for reconsideration the NLRC modified its earlier decision when it deleted the award of backwages on the ground that there was "no concrete showing that complainant was constructively dismissed".

Issue:Whether or not the Rustom M. Catinoy was dismissed without cause and without due process of law?

Ruling:Clearly, constructive dismissal had already set in when the

suspension went beyond the maximum period allowed by law. Section 4, Rule XIV, Book V of the Omnibus Rules provides that preventive suspension cannot be more than the maximum period of 30 days. Hence, we have ruled that after the 30-day period of suspension, the employee must be reinstated to his former position because suspension beyond this maximum period amounts to constructive dismissal.

It bears stressing that in illegal dismissal cases, it is the employer who has the burden of proof. Since petitioner claims that respondent abandoned his work, petitioner has to establish the concurrence of the following: (1) the employee's intention to abandon employment and (2) overt acts from which such intention may be inferred—as when the employee shows no desire to resume work.Petitioner failed to make out its case of abandonment. Even the NLRC in its modified decision confirmed that there were no overt acts unerringly pointing to the fact that respondent had no intention of returning to work anymore. Also, the fact that respondent filed a complaint against his employer within a reasonable period of time belies abandonment.

The strict adherence by the NLRC to the definition of constructive dismissal is erroneous. Apparently, the NLRC ruled out constructive dismissal in this case mainly because according to it "constructive dismissal consists in the act of quitting because continued employment is rendered impossible, unreasonable or unlikely as in the case of an offer involving demotion in rank and a diminution in pay". Based on this definition, the NLRC concluded that since respondent neither resigned nor abandoned his job and the fact that respondent pursued his reinstatement negate constructive dismissal. What makes this conclusion tenuous is the fact that constructive dismissal does not always involve forthright dismissal or diminution in rank, compensation, benefit and privileges. There may be constructive dismissal if an act of clear discrimination, insensibility, or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment.

17. ROXAS

PHILIPPINE VETERANS BANK VS NLRC G.R. No. 188882 March 30, 2010

Facts: Respondent Benigno Martinez was the manager of petitioner

Philippine Veterans Bank Dumaguete Branch from September 1, 2001 until January 8, 2003, the latter being the date when his supposed resignation from petitioner bank became effective. Respondent claimed that his resignation stemmed from a report published by the Philippine Daily Inquirer regarding the anomalies hounding petitioner's high-ranking officials. Accordingly, this controversy resulted in huge withdrawals of major depositors. Concerned, respondent Martinez approached Mr. Wilfredo S. Aniñon, petitioner's Area Head for Visayas and Mindanao, to discuss how to resolve the matter. When Mr. Aniñon just brushed off the issue, respondent requested the Mayor of Valencia (a known big depositor of the Dumaguete Branch) to talk to Mr. Aniñon. The latter misinterpreted the respondent's actions and angrily confronted him the next dayand told him that he would be replaced in his position as manager.

On October 14, 2002, Mr. Aniñon went to the Dumaguete Branch and brought along with him respondent's replacement. Mr. Aniñon then instructed the respondent togo to the petitioner's head office in Makati to report to Mr. Jose D. Lloren, Jr., the Vice President and Head of Branch Banking Division. Respondent Martinez flew to Manila and reported to the Makati Office where he was told by Mr. Lloren that he would undergo training. However, no such training took place. Instead, he was made to do clerical jobs. Respondent lamented that he had to travel at least 4 hours daily from his rented house in Cavite to Makati, and as a consequence thereof his travel and living expenses consumed at least half of his salary. On January 8, 2003, respondent tendered his resignation because it was so expensive for him to be staying away from his family.

Issue: WON respondent was constructively dismissed

Held: In constructive dismissal cases, the employer has the burden of

proving that its conduct and action or the transfer of an employee are for valid and legitimate grounds such as genuine business necessity. Particularly, for a transfer not to be considered a constructive dismissal, the employer must be able to show that such transfer is not unreasonable, inconvenient, or prejudicial to the employee.

Failure of the employer to overcome this burden of proof taints the employee's transfer as a constructive dismissal. In the present case, the petitioner failed to discharge this burden. The NLRC, as affirmed by the CA, correctly found that the combination of the harsh actions of the petitioner rendered the employment condition of respondent hostile and unbearable for the following reasons:

First, the petitioner failed to show any urgency or genuine business necessity to transfer the respondent to the Makati Head Office. In fact, the respondent showed the actual motivation and the bad faith behind his transfer.

Second, the respondent’s transfer from Dumaguete to Makati City is clearly unreasonable, inconvenient and oppressive, since the respondent and his family are residents of Dumaguete City. 

Third, the petitioner failed to present any valid reason why it had to require the respondent to go to Makati Head Office to undergo branch head training when it could have just easily required the latter to undertake the same training in the VISMIN area.

 Finally, there was nothing in the order of transfer as to what position the respondent would occupy after his training; the respondent was effectively placed in a “floating” status.

The test of constructive dismissal is whether a reasonable person in the employee’s position would have felt compelled to give up his position under the circumstances. Based on the factual considerations in the present case, we hold that the hostile and

unreasonable working conditions of the petitioner justified the finding of the NLRC and the CA that respondent was constructively dismissed.

18. RIVERA

WESTMONT PHARMACEUTICALS, INC., UNITED LABORATORIES, INC., AND/OR JOSE YAO CAMPOS, CARLOS EJERCITO,

ERNESTO SALAZAR, ELIEZER SALAZAR, JOSE SOLIDUM, JR., PETITIONERS, VS. RICARDO C. SAMANIEGO, RESPONDENT.

FACTS Ricardo Samaniego was initially hired by Unilab as Professional

Service Representative of its marketing arm, Westmont. Later, Unilab promoted him as a Senior Business Development Associate and assigned him in Isabela as Acting District Manager of Westmont and Chairman of Unilab Special Projects. He was then transferred to Metro Manila pending the investigation of his subordinate and physicians of Region II involved in a sales discount and Rx trade-off controversy. He was placed under floating status and assigned to perform duties not connected with his position. This transfer resulted in the diminution of his salary. 

Ricardo Samaniego then filed with the Office of the Labor Arbiter for illegal dismissal and damages against Westmont and Unilab, as well as Unilab’s Officer 

Westmont and Unilab filed a motion to dismiss Samaniego’s complaint on the ground of improper venue and lack of cause of action. They argued that it should be filed with the NLRC in Manila, not with the Office of the Labor Arbiter in Tuguegarao City, Cagayan, and that the action should be against Westmont, Samaniego’s employer. 

The Labor Arbiter denied the motion to dismiss, Citing Section 1, Rule IV, of the NLRC Rules and Procedure allowing the Labor Arbiter to order a change of venue in meritous cases, he then set the case for preliminary conference during which the petitioners expressly reserved their right to contest the order denying motion to dismiss. 

Petitioners filed with the NLRC an Urgent Petition to Change or Transfer Venue. They also filed to suspend proceedings in view of the pendency of their petition. 

The Labor Arbiter issued an order directing parties to submit their respective papers and supporting documents within 20 days from notice, after which the case shall be submitted for decision. 

The NLRC acting on the petition to change venue, ordered the Labor Arbiter to forward the records of the case. The Labor Arbiter retained a complete duplicate original copies of the records and set the case for hearing. They petitioners filed a motion for cancellation of the hearings because their petition for change of venue has remained unresolved. They did not submit their position papers and did not attend hearing, thus the Labor Arbiter considered the case submitted for Decision based on the records and the evidence submitted by Samaniego and rendered a decision finding that Samaniego is illegally and unjustly dismissed constructively. 

Petitioners appeal to the NLRC. The NLRC dismissed the petition for change of venue because when the cause of action arouse, Samaniego’s workplace in Isabela over which the Labor Arbiter in Cagayan has the jurisdiction. However it declared the decision of the NLRC null and void because it continued to conduct further proceedings despite the pendency of the appeal-treated Urgent Petition for Change and Westmont and Unilab are denied due process. 

Both Parties applied for motion for reconsideration but both were denied by the NLRC. 

Hence this petition. 

ISSUE 

1. Whether or Not Court of Appeals erred in denying their motion to dismiss by reason of improper venue. 

2. Whether or Not Westmont and Unilab are denied of due process. 

3. Whether the Caourt of Appeals erred on holding that Samaniego was constructively dismissed by Westmont and Unilab.

HELD The petition to change or transfer venue filed by herein

petitioners with the NLRC is not the proper remedy to assail the Labor Arbiter’s order denying their motion to dismiss. Such order is merely interlocutory, hence not appealable as provided in Section 3 of the 1997 NLRC Rules and Procedures. 

An order denying a motion to dismiss is interlocutory, and so the proper in such a case is to appeal after a decision has been rendered. 

Assuming that the petition to change or transfer venue is the proper remedy, still we find that the CA did not err in sustaining the Labor Arbiter’s Order of denying the motion to dismiss because under the 1997 NLRC rules and procedure under Section 1, All cases which the Labor Arbiters have authority to hear and decide may be filed in the Regional Arbitration Branch having jurisdiction over the workplace of the complainant/petitioner. The question of venue essentially relates to the trial and touches more upon the convenience of the parties, rather than upon the substance and merits of the case. Our permissive rules underlying the provisions on venue are intended to assure convenience for the plaintiff and his witnesses and to promote the end of justice. This axiom all the more finds applicability in cases involving labor and management because of the principle, paramount in our jurisdiction, that the State shall afford to full protection of labor. 

Because Samaniego’s regular place of assignment was in Isabela when he was transferred to Metro Manila or when the cause of action arose. Clearly, the Appellate Court was correct in Affirming the Labor Arbiter’s finding that the proper venue is in the RAB No. II at Tuguegarao City, Cagayan. 

On the contention that Westmont and Unilab that they were denied due process, well settled is the rule that the essence of due process is simply an opportunity to be heard or as applied to administrative proceeding, an opportunity to explain one’s side or an opportunity to seek a reconsideration of the action or ruling complained of. The requirement of due process in labor cases before a Labor Arbiter is satisfied when the parties are given the opportunity to submit their position papers to which they are supposed to attach all the supporting documents or documentary evidence that would prove their respective claims, in the even the Labor Arbiter determines that no formal hearing would be conducted of that such hearing was not necessary. 

As shown by the records, the Labor Arbiter gave Westmont and Unilab, not only once, but thrice, the opportunity to submit their position

papers and supporting affidavits and documents. But they were obstinate. Clearly, they were not denied their right to due process. 

To recapitulate, Samaniego claims that upon his reassignment and/or transfer to Metro Manila, he was placed on “floating status” and directed to perform functions not related to his position.   For their part, Westmont and Unilab explain that  his  transfer is based on a sound business judgment, a management prerogative.   

In constructive dismissal, the employer has the burden of proving that the transfer of an employee is for just and valid grounds, such as genuine business necessity.   The employer must be able to show that the transfer is not unreasonable, inconvenient, or prejudicial to the employee.   It must not involve a demotion in rank or a diminution of salary and other benefits.   If the employer cannot overcome this burden of proof, the employee’s transfer shall be tantamount to unlawful constructive dismissal.[6]

  Westmont and Unilab failed to discharge this burden.   Samaniego was unceremoniously transferred from Isabela to Metro Manila.  We hold that such transfer is economically and emotionally burdensome on his part.   He was constrained to maintain two residences – one for himself in Metro Manila, and the other for his family inTuguegarao City, Cagayan.   Worse, immediately after his transfer to Metro Manila, he was placed “on floating status” and was demoted in rank, performing functions no longer supervisory in nature.

The assailed decision of the CA is affirmed.

19. OLORES

20. BACALZO

DIVERSIFIED SECURITY INC VS ALICIA BAUTISTA

FACTS:Respondent was employed by petitioner as an Executive Pool

Secretary, but petitioner alleged that respondent turned out to be incompetent. Petitioner then assigned her to perform menial or insignificant jobs and allegedly transferred her to their branch office in Makati City. However, respondent allegedly failed to report for work at said branch office on the day she was supposed to do so.On the other hand, respondent claimed that petitioner dismissed her on October 31, 1997 without any valid reason, neither was she given any notice and hearing.

In December of 1997, respondent filed a case for illegal dismissal against petitioner. Petitioner countered that respondent was not dismissed; rather, she was the one who severed her connection with petitioner by her "voluntary and unequivocal acts." The Labor Arbiter, NLRC and Court of Appeals all ruled in favor of respondent.

ISSUE: WON respondent was illegally dismissed by petitioner.

HELD:YES.In this case, the Labor Arbiter, the NLRC and the CA were

all consistent in their factual findings that respondent's employment was indeed terminated without giving her notice and hearing. The NLRC's finding that respondent had been petitioner's employee since 1990, had also been affirmed by the CA. A close perusal of the records show that there is no cogent reason for this Court to deviate from the settled rule that factual findings of the NLRC, when affirmed by the Court of Appeals, are accorded not only respect but finality.

The petitioners cannot justify their defense of abandonment as they failed to prove that indeed private respondent had abandoned her work. It did not even bother to send a letter to her last known address requiring her to report for work and explain her alleged continued

absences. The ratiocination of public respondent [NLRC] on this score merits our imprimatur, viz:

The law clearly spells out the manner with which an unjustified refusal to return to work by an employee may be established. Thusly, respondent should have given complainant a notice with warning concerning her alleged absences (Section 2, Rule XIV, Book V, Implementing Rules and Regulations of the Labor Code). The notice requirement actually consists of two parts to be separately served on the employee to wit: (1) notice to apprise the employee of his absences with a warning concerning a possible severance of employment in the event of an unjustified excuse therefor, and (2) subsequent notice of the decision to dismiss in the event of an employee's refusal to pay heed to such warning. Only after compliance had been effected with those requirements can it be reasonably concluded that the employee had actually abandoned his job. In respondent's case, it is noted that more than two (2) months had already lapsed since complainant allegedly started to absent herself when the latter instituted her action for illegal dismissal. During the said period of time, no action was taken by the respondents regarding complainant's alleged absences, something which is quite peculiar had complainant's employment not been severed at all. Accordingly, we do not find respondents defense of abandonment to be impressed with merit in view of an utter lack of evidence to support the same. Hence, complainant's charge of illegal dismissal stands uncontroverted

Having firmly established that petitioner dismissed respondent without just cause, and without notice and hearing, then it is only proper to apply Article 279 of the Labor Code which provides that an illegally dismissed employee "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." In addition to full backwages, the Court has also repeatedly ruled that in cases where reinstatement is no longer feasible due to strained relations, then separation pay may be awarded instead of reinstatement.

21. AGORILLA

COCA-COLA BOTTLERS PHILS., INC., NATALE DI COSMO, RENE HORILLENO, and BENITO A. DE LEON, petitioners,

vs.GOMERSENDO P. DANIEL, respondent.

Facts:Respondent is a security guard in the Calamba plant for 13

years for petitioner company. Two incidents happened that lead to his dismissal. First was when he failed to inspect a van before leaving the plant, which was his duty and a company policy. Second was when he allowed a van to leave the plant without a tarpaulin cover, thus endangering the quality of the goods of the petitioner. Petitioners contend that Daniel is guilty of deliberate and wilful disobedience of company rules and regulations, or serious misconduct, or wilful breach of trust and confidence, thus, respondent’s employment was terminated. Respondent filed a case for illegal dismissal against Coca-Cola which the latter denied committing the same.

Issue:1) whether a valid cause existed to justify the dismissal of respondent; 2) whether he is entitled to reinstatement and back wages.

Ruling:1) None. Neither of the two infractions committed by Daniel caused substantive loss or damage. Their company policy does not warrant dismissal for such infractions. Also worth stressing are the following facts: Daniel has served the company for 13 years; he was previously granted a scholarship given only to employees with high performance ratings; his infractions were minor; and there has been no showing that he acted in bad faith or with malice. Under the circumstances, there is every justification for tilting the scales of justice in favor of the employee.2) Yes. Article 279 of the Labor Code, as amended, mandates that illegally dismissed employees are entitled to both 1) reinstatement without loss of seniority rights and other privileges; and 2) full back

wages, inclusive of allowances and other benefits or their monetary equivalent, from the time their compensation was withheld from them up to the time of their actual reinstatement. Both reliefs are rights granted by substantive law to alleviate the economic hardships suffered by an illegally dismissed employee. The grant of one does not preclude the other.

Also, there is no showing that the relationship between the parties are strained so as to not reinstate Daniel as an employee. From these facts, we hold that the doctrine of strained relations finds no application in the case at bench. As the NLRC observed, not only were [respondent’s] infractions ‘merely minor’, he did not act in bad faith or with malice when he committed the same; neither did Coca-Cola sustain material damage or injury as a result thereof.

22. TALAY

GLOBE MACKAY CABLE AND RADIO CORPORATIONVS

NATIONAL LABOR RELATIONS COMMISION AND IMELDA SALAZAR

MARCH 3, 1992

FACTS:Imelda Salazar was employed by Globe Mackay Cable and

Radio Corporation as general systems analyst, also employed by petitioner as manager for technical operations support was DelfinSaldivar with whom Imelda was allegedly very close. Sometime in 1994, 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 prepared by company’s internal auditor, Mr Agustin Maramara, indicated that Saldivar had entered into a partnership styled Concave Commercial and Industrial Company with Richard Yambao. The report also disclosed that Saldivar had taken petitioners missing air conditioning unit for his own personal use without authorization and also connived with Yambao to defraud petitioner. It likewise appeared in the course of Maramara’s investigation that Imelda Salazar violated company regulations 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 air conditioner but failed to inform her employer.Consequently petitioner company placed private respondent under suspensive suspension for one month and giving her thirty days within which to explain her side.But instead of submitting an explanation, private respondent filed a complaint against illegal suspension which she subsequently amended to include illegal dismissal, vacation and sick leave benefits, 13th month pay and damages, after petitioner notified her that she was considered dismissed.Labor Arbiter ordered petitioner company to reinstate Salazar to her former work 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 Salazar moral damages.On appeal, NLRC affirmed the decision of the Labor Arbiter but deleted the award for moral damages.

ISSUES:Whether or not petitioner violated Salazar’s due process when

she was promptly suspended.Whether or not Salazar was unjustly dismissed.

HELD:The Suprene Court ruled that it is not correct to conclude that

petitioner has violated Salazar’s right to due process when she was promptly suspended.If at all, the fault lay with Salazar when she ignored petitioner’s memorandum 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.The court ruled that Salazar was unjustly dismissed, there being no evidence to show an authorized, much less a legal, cause for the dismissal of Salazar, she had every right, not only be entitled to reinstatement, but as well as to full backwages.The Labor Code provides that in cases or regular employment, the employer shall not terminate the services of an employee except for a just cause.An employee who is unjustly dismissed from work hall 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 monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.The court also stress that the right of an employee not to be dismissed from his job except for a just cause has assumed greater importance under the 1987 Constitution.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 the Labor Code, should find application.Thus she is entitled to reinstatement and payment of backwages.

23. BARTOLOME

Baguio Country Club Corporation vs NLRC

Facts:Petitioner Baguio Country Club Corporation (corporation) is a

recreational establishment certified by the ministry of labor and employment as an “entertainment-service” establishment. Private respondent Jimmy Calamba was employed by corporation on a day to day basis in various capacities as laborer and dishwasher for a period of ten months. Calamba was hired again as a gardener and rehired as such when he was dismissed by the petitioner corporation. Calamba filed a complaint against petitioner corporation with the ministry of labor (DOLE) for unfair labor practice, illegal dismissal and non-payment of 13th month pay. The executive labor arbiter ruled in favor of Calamba, declaring the latter as a regular employee and ordering petitioner corporation to reinstate Calamba to the position of gardener without loss of seniority and with full back wages, benefits and privileges from the time of his dismissal up to therein statement including 13th Month pay. Petitioner corporation filed an appeal to the NLRC contending that Calamba was a contractual employee whose employment was for a fixed and specific period as set forth and evidenced by Calamba’s contracts of employment. However, the NLRC dismissed the appeal for lack of merit. The latter argued that Calamba having rendered services as laborer, gardener, and dishwasher for more than one year, was a regular employee at the time his employment was terminated. Hence, the petition.

Issue:Whether or not Calamba is a regular employee at the time his employment was terminated? 

Held:YES. The court held that 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. Also, if the employee has been performing the job for at least one year, even if the performance is not continuous or merely intermittent, the law deems the repeated and continuing need for its performance as sufficient evidence of the necessity if not indispensability of that activity to the business. Hence, the employment is also considered regular, but only with respect to such activity and while such activity exists. In the case at bar, the records reveal that Calamba was repeatedly re-hired to perform tasks ranging from dishwashing and gardening, aside from performing maintenance work. Such repeated rehiring and the continuing need for his service are sufficient evidence of the necessity and indispensability of his service to the petitioner’s business or trade. Owing to Calamba’s length of service with the petitioner’s corporation, he became a regular employee, by operation of law, one year after he was employed. The employment contracts entered into by Calamba with the petitioner have the purpose of circumventing the employee’s security of tenure. The court therefore, rigorously disapproves said contracts which demonstrate a clear attempt to exploit the employee and deprive him of the protection sanctioned by the labor code. It is noteworthy that what determines whether a certain employment is regular or casual is not the will and word of the employer, it is the nature of the activities performed in relation to the particular business or trade considering all circumstances, and in some cases the length of time of its performance and its continued existence.

24. MIRANDA

25. MARTIN

DUSIT HOTEL NIKKO, Petitioner, vs.  RENATO M. GATBONTON, Respondent.

FACTSOn November 21, 1998, respondent Renato M. Gatbonton was

hired as Chief Steward in petitioner Dusit Hotel Nikko’s Food and Beverage Department.  He signed a three-month probationary employment contract until February 21, 1999, with a monthly salary of P25,000.  At the start of his employment, the standards by which he would be assessed to qualify for regular employment were explained to him.

The hotel alleged that at the end of the probation period, Ingo Rauber, Director of its Food and Beverage Department, observed that Gatbonton failed to meet the qualification standards for Chief Steward, and Rauber recommended a two-month extension of Gatbonton’s probationary period, or until April 22, 1999.  At the end of the 4th month, on March 24, 1999, Rauber informed Gatbonton that the latter had poor ratings on staff supervision, productivity, quantity of work, and overall efficiency and did not qualify as Chief Steward.  Gatbonton requested another month or until April 22, 1999 to improve his performance, to which Rauber agreed but allegedly refused to sign the Performance Evaluation Form.  Neither did he sign the Memorandum on the extension.

On March 31, 1999, a notice of termination of probationary employment effective April 9, 1999, on the above alleged grounds was served on Gatbonton.  On April 12, 1999, he filed a complaint for illegal dismissal and non-payment of wages, with prayers for reinstatement, full backwages, and damages, including attorney’s fees.

ISSUEWhether or not respondent was a regular employee at the time

of his dismissal.

HELDThe SC held that as Article 281 clearly states, a probationary

employee can be legally terminated either:  (1) for a just cause; or (2) when the employee fails to qualify as a regular employee in accordance with the reasonable standards made known to him by the employer at the start of the employment.  Nonetheless, the power of the employer to terminate an employee on probation is not without limitations.  First, this power must be exercised in accordance with the specific requirements of the contract. Second, the dissatisfaction on the part of the employer must be real and in good faith, not feigned so as to circumvent the contract or the law; and third, there must be no unlawful discrimination in the dismissal.  In termination cases, the burden of proving just or valid cause for dismissing an employee rests on the employer.

Here, the petitioner did not present proof that the respondent was evaluated from November 21, 1998 to February 21, 1999, nor that his probationary employment was validly extended. The petitioner alleged that at the end of the respondent’s three-month probationary employment, Rauber recommended that the period be extended for two months since respondent Gatbonton was not yet ready for regular employment. The petitioner presented a Personnel Action Form containing the recommendation.  We observed, however, that this document was prepared on March 31, 1999, the end of the 4th month of the respondent’s employment. In fact, the recommended action was termination of probationary employment effective April 9, 1999, and not extension of probation period.  Upon appeal to the NLRC, the petitioner presented another Personnel Action Form prepared on March 2, 1999, showing that the respondent’s probationary employment was extended for two months effective February 23, 1999.

The Personnel Action Form dated March 2, 1999, contained the following remarks: “subject to undergo extension of probation for two (2) months as per attached memo.”  Yet, we find this document inconclusive.  First, the action form did not contain the results of the respondent’s evaluation.  Without the evaluation, the action form had no basis.  Second, the action form spoke of an attached memo which the petitioner identified as Rauber’s Memorandum, recommending the

extension of the respondent’s probation period for two months.  Again, the supposed Memorandum was not presented.  Third, the action form did not bear the respondent’s signature. 

In the absence of any evaluation or valid extension, we cannot conclude that respondent failed to meet the standards of performance set by the hotel for a chief steward.  At the expiration of the three-month period, Gatbonton had become a regular employee.  It is an elementary rule in the law on labor relations that a probationary employee engaged to work beyond the probationary period of six months, as provided under Article 281 of the Labor Code, or for any length of time set forth by the employer (in this case, three months), shall be considered a regular employee.  This is clear in the last sentence of Article 281.  Any circumvention of this provision would put to naught the State’s avowed protection for labor.

Since respondent was not dismissed for a just or authorized cause, his dismissal was illegal, and he is entitled to reinstatement without loss of seniority rights, and other privileges as well as to full backwages, inclusive of allowances, and to other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

Petition is denied.

26. DE GRACIA

SAMEER OVERSEAS PLACEMENT AGENCY, INC., petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION, Third Division, Q.C.

and PRISCILA ENDOZO, respondents.

FACTS: Priscila Endozo applied to Sameer Overseas Employment Agency, a local recruitment placement agency, for overseas employment in Taiwan as a domestic helper. As she was initially found to have a "minimal spot" she was advised to rest for at least 2 months. Sameer told Endozo that she would be finally deployed to Taiwan and required her to pay the amount of P30,000.00, which she did, but Sameer did not issue any receipt.

Endozo left for Taiwan. She was to be employed as a housemaid of Sung Kui Mei with a monthly salary of NT$13,380.00 for a period of one year. However, she stayed in Taiwan only for 11 days as her employer terminated her services, and sent her home for alleged incompetence.

Immediately upon her return, she confronted Sameer agency and Rose Mahinay of said agency told her that she was just unlucky and that she would be refunded the amount of P50,000.00.

Endozo filed with the POEA a complaint against petitioner for illegal dismissal, payment of salary corresponding to the unexpired portion of her contract, illegal exaction, violation of the Labor Code, falsification of contract of employment, attorney’s fees and costs. Meantime, on June 7, 1995, Congress enacted Republic Act No. 8042, vesting jurisdiction over claims of overseas workers with NLRC. Consequently, Endozo’s claim was transferred to the NLRC, Arbitration Branch.

Labor Arbiter: rendered a decision finding that Endozo was illegally dismissed and ordering Sameer agency to pay her salary corresponding to the unexpired portion of her contract of employment of eleven (11) months and nineteen (19) days equivalent plus ten percent (10%) of the award as attorney's fees.

NLRC: rendered decision affirming in toto the decision of the Labor Arbiter.

ISSUE: WON the employer in Taiwan could lawfully terminate private respondent's employment as domestic helper for incompetence during the probationary period of her employment.

HELD: No. It is an elementary rule in the law on labor relations that even a probationary employee is entitled to security of tenure. A probationary employee can not be terminated, except for cause.

In this case, the employment contract was for a definite period of one (1) year, with six (6) months probationary period. After only eleven days of work, the employer dismissed private respondent without just cause.

“Under Article 281 of the Labor Code, a probationary employee may be terminated on two grounds: (a) for just cause or (b) when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement.” Under the contract of employment, the employer may terminate the services of private respondent during the probationary period for "being found losing ability to work." However, “the power of the employer to terminate a probationary employment contract is subject to limitations. First, it must be exercised in accordance with the specific requirements of the contract. Secondly, the dissatisfaction of the employer must be real and in good faith, not feigned so as to circumvent the contract or the law; and thirdly, there must be no unlawful discrimination in the dismissal.” In termination cases, the burden of proving just or valid cause for dismissing an employee rests on the employer. In this case, petitioner was not able to present convincing proof establishing respondent Endozo’s alleged incompetence. “Due process dictates that an employee be apprised beforehand of the conditions of his employment and of the terms of advancement therein.” “Precisely, implicit in Article 281 of the Code is the requirement that reasonable standards be previously made known by the employer to the probationary employee at the time of his engagement.”

Thus, the termination of respondent Endozo’s employment was not justified and hence, illegal. Consequently, private respondent is entitled to payment of her salaries corresponding to the unexpired portion of her contract of employment for a period of one year. Court DISMISSES the petition and AFFIRMS the resolution NLRC.