Labor Relations Case 1

8/13/2019 Labor Relations Case 1

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Serrano v. NLRC

Tags:constitutional law,constitutional law 2,digest,due process,nlrc,serrano,serrano v. NLRC

SERRANO V. NATIONAL LABOR RELATIONS COMMISSION AND ISETANN DEPARTMENT STORE27 January 2000 | Mendoza | Special civil action in the SC, Certiorari

FACTSRuben Serrano was hired by Isetann Dept. Store as a security checker1984Contractual; 1985Regular; 1988Head of Security CheckersIn 1991, as a cost-cutting measure, Isetann decided to phase out the entire security section andengagethe services of an independent security agency.Isetann sent a memo to Serrano on 11 Oct 1991, reiterating their verbal notice of termination effectiveon the same day.Serrano filed a complaint on 3 Dec 1991 for illegal dismissal, illegal layoff, unfair labor practice,underpayment of wages, nonpayment of salary and overtime pay

Labor Arbiter held that Serrano was illegally dismissedFailed to establish that the cause of retrenchment is to minimize losses

Did not accord due process to Serrano

Did not use reasonable standards in selecting employees to be terminated

Did not show employees inefficiency so as to justify their replacement

The day after Serranos dismissal, Isetann hired another person as a safety and securitysupervisor

Isetann ordered to pay backwages, reinstatement, unpaid wages, 13th month pay, attorneysfees

NLRC reversed Labor Arbiters decision upon Isetanns appealPhase-out of security section, hiring of agency is a legitimate business decision

Labor Arbiters distinction between retrenchment and employment of cost-saving devicesinsignificant

Reasonable criteria does not apply because the entire Security Section was abolished

No bad faith in appointing a supervisor because it was separate from Serranos position asSecurity Checkers head

Isetann ordered to give separation pay, unpaid salary, 13th month pay

Serranos MfR denied

ISSUE AND HOLDINGWON the abolition of the Security Checkers section and the employment of an independent securityagency falls under any of the authorized causes for dismissal under Article 283 of the Labor Code - YES,authorized cause is redundancy; Serrano should be given separation pay at the rate of one-month payfor every year of service (Art. 283)

DISCUSSION
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Art. 283 provides that one month before intended date, written notice must be served onthe workersand DOLE

Authorized causes under Art. 283 (Closure of establishment and reduction of personnel)

Installation of labor-saving devicesRedundancy

Separation payat the rate of at least one-month pay orone-month pay for every year of service (whichever is higher)

Retrenchment to prevent lossesClosing or cessation of operations

Separation pay at the rate of at least one-month pay or half-month pay for every year of service (whichever is higher)

Absent proof that management acted in a malicious or arbitrary manner, the Court will not interferewith the employers exercise of judgment.That the phase-out constituted a legitimate business decision is a factual finding of NLRC.

History of policiesWhen there is just cause but no due process (requirements of notice and opportunity to be heard) Before: Dismissal is illegalTheshifttook place in Wenphil Corp. v. NLRC

Highly prejudicial to the employers interests to reinstate an employee who has been shown tobe guilty of the charges that warranted his dismissal

Dismissal must be for just or authorized cause and after due process

Now: Dismissal shall be upheld but the employer must be sanctioned for non-compliance with therequirements of, or for failure to observe, due process (Sebuguero v. NLRC)

Fines imposed range from P1,000 to P10,000

ReexaminingWenphil doctrine

J. PanganibanMonetary sanctions are too insignificant, niggardly, late

J. PunoDismiss now, pay later policy convenient for moneyed employers

In their opinion, such dismissal is void and employee should be reinstated and paidbackwages

Remedypay full backwages from dismissal until determination that dismissal was for a just cause BUTSTILL, dismissal must be upheld

Why violation of the notice requirement cannot be considered a denial of due process resulting in the

nullity of dismissalDue process clause is a limitation on governmental powers and DOES NOT APPLY to the exerciseofprivate power

a. Only the state has authority to take life, liberty, propertyb. Purpose of clause is to ensure that the exercise of this power is consistent with civilized methods

Notice and hearing are required under the due process clause before the power of the organized societyis brought to bear upon the individual

a. This is NOT the case of termination of employeeno adversary system here (there is no charge


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against the employee)b. Purpose of 30-day written notice is to give employee time to prepare for the eventual job loss, and forDOLE to determine WON economic causes exist to justify his terminationc. Even in cases of dismissal under Article 282[1], purpose of notice and hearing is NOT to comply withthe due process clause in the Constitution; Compliance with notice requirement does not foreclose rightof employee to question the legality of his dismissald. History of related laws

1. Art. 302 of Spanish Code of Commerceemployee/employer can terminate relationshipby giving one month notice; in lieu of notice, mesada (one month pay) could be given toemployee

2. NCC 2270repealed Art. 302 of Spanish Code of Commerce

3. RA 1052 (Termination Pay Law)revived mesada

4. RA 1787amended RA 1052 by providing for giving of advance notice or payment ofcompensation (1/2 month per year of service)

5. Rules implementing BP 130, RA 6715 (amending NCC 277(b)notice required evenwhen the dismissal was for cause

Employer CANNOT be expected to be an impartial judge of his own causeAlso the case for termination for a just cause under Article 282J. Puno disputes this as he says that many cases have been won by employees before grievancecommittees manned by impartial judges of the companyGrievance machinery is DIFFERENTestablished by agreement of employer, employees and iscomposed of representatives from both sides

If the violation of the notice requirement is not a denial of due process, what is it? Mere failure to observe a procedure for the termination of employment, which makes the terminationmerely ineffectual

What makes a dismissal of an employee illegal?Only the absence of a just cause for termination as provided in Article 279

BasisAuthorized

causeNotice Reinstate Kind of pay

Art. 283 P Separation pay, backwages

Art. 283 P Backwages

Art. 282 P Backwages from termination until it is determined

that there is just cause

DISPOSITIVE PORTION

Petition granted. NLRC resolution modified. Isetann is ordered to:Pay separation pay equivalent to one month pay per year of service

Unpaid salary

Proportionate 13thmonth pay

Full backwages from termination until this decision becomes final

Case remanded to Labor Arbiter to determine computation of monetary awards to Serrano.


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OPINIONS [2]

Separate OpinionBellosilloPrefers to call indemnity or penalty as disturbance compensation

Proposes that amount of the award be uniform and rational and not arbitrary

Dissenting OpinionPunoWenphil did not change ruling that violation of the pre-dismissal notice requirement is an

infringement of due process

Submits a return to the pre-Wenphil rule where a reasonless violation of the notice requirementmakes the dismissal illegal and results in the employees reinstatement

One undesirable effect of Wenphil is to compel employees to seek relief against illegaldismissals with DOLE (whereas before, a remedy can be sought before the employer) and oftentimes,they do not know why they were dismissed in the first place

Dilution of the rule has been abused by employers who followed the dismiss now, pay laterstrategy

An employee under Article 283 has a stronger claim to the right to a pre-dismissal notice andhearing (rather than post facto dismissal hearing)

Disagrees with majority opinion that due process requirement does not apply to the exercise ofprivate power; private due process is a settled norm in administrative law

Separate OpinionVitugA just or authorized cause and a written notice are required concurrently but not equipollent in

their consequence in terminating an employer-employee relationship

Where there is no just or authorized cause, reinstatement and payment of backwages would beproper. Damages might also be awarded if dismissal is attended by bad faith of employer. Separationpay can substitute for reinstatement if such reinstatement is not feasible.

Employer must be made to pay corresponding damages for failure to comply with notice

requirementSeparate OpinionPanganiban

Notice requirement finds basis not only in the Labor Code but also in the due process clause ofthe Constitution

When the employee is dismissed without due process, he is illegally dismissed. He is entitled tobackwages and reinstatement.

The Labor Code grants the dismissed employee the right to be notified as well as the right to beheard.

[1] Causes under Article 282 are (1) serious misconduct or willful disobedience, (2) gross and habitualneglect of duties, (3) fraud or breach of trust, (4) commission of crime against employer or immediatefamily member or authorized representatives, and (5) other analogous causes.[2] For this part, I will only take note of discussions different from what has been presented in themajority opinion.

AGABON vs. NLRC

November 17, 2004


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Facts: Virgilio and Jenny Agabon were cornice installers of Riviera Home Improvements, a company

engaged in the business of selling ornamental construction materials. They were employed from January

2, 1992 until February 23, 1999, when they were dismissed for abandonment of work. The Agabons filed

a complaint for illegal dismissal before the LA, who ruled in their favor. The NLRC reversed on appeal.

The CA sustained the NLRCs decision. The Agabons further appealed to the SC, disputing the

finding of abandonment, and claiming that the company did not comply with the twin requirements of

notice and hearing.

Issue: WON the Agabons were illegally dismissed.

Held: NO. Substantive due process (EEs must be dismissed for just or authorized cause): SC upheld the

finding of abandonment, because the act of the Agabons in seeking employment elsewhere clearly

showed a deliberate intent to sever the ER-EE relationship. Procedural due process (for just cause, there

must be a written notice informing him of grounds for termination, a hearing or opportunity to be

heard, and a final notice of termination stating the grounds therefor): There was no due process

because ER did not send the requisite notices to the last known address of the EEs. ER only gave a flimsyexcuse that the notice would be useless because the EEs no longer lived there. This is not a valid excuse,

they should have still sent a notice as mandated by law. For not sending the requisite notices, the ER

should be held liable for non-compliance with the procedural requirements of due process.

[G.R. No. 162994. September 17, 2004]

DUNCAN ASSOCIATION OF DETAILMAN-PTGWO and PEDRO A. TECSON,petitioners, vs.GLAXO

WELLCOME PHILIPPINES, INC.respondent.

R E S O L U T I O N

TINGA,J.:

Confronting the Court in this petition is a novel question, with constitutional overtones, involvingthe validity of the policy of a pharmaceutical company prohibiting its employees from marryingemployees of any competitor company.

This is a Petition for Review on Certiorariassailing the Decision[1]dated May 19, 2003 andthe Resolution dated March 26, 2004 of the Court of Appeals in CA-G.R. SP No. 62434.[2]

Petitioner Pedro A. Tecson (Tecson) was hired by respondent Glaxo Wellcome Philippines, Inc.(Glaxo) as medical representative on October 24, 1995, after Tecson had undergone training andorientation.

Thereafter, Tecson signed a contract of employment which stipulates, among others, that he agreesto study and abide by existing company rules; to disclose to management any existing or futurerelationship by consanguinity or affinity with co-employees or employees of competing drug companies
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and should management find that such relationship poses a possible conflict of interest, to resign fromthe company.

The Employee Code of Conduct of Glaxo similarly provides that an employee is expected to informmanagement of any existing or future relationship by consanguinity or affinity with co-employees oremployees of competing drug companies. If management perceives a conflict of interest or a potential

conflict between such relationship and the employees employment with the company, themanagement and the employee will explore the possibility of a transfer to another department in anon-counterchecking position or preparation for employment outside the company after six months.

Tecson was initially assigned to market Glaxos products in the Camarines Sur -Camarines Nortesales area.

Subsequently, Tecson entered into a romantic relationship with Bettsy, an employee of AstraPharmaceuticals[3](Astra), a competitor of Glaxo. Bettsy was Astras Branch Coordinator in Albay. Shesupervised the district managers and medical representatives of her company and prepared marketingstrategies for Astra in that area.

Even before they got married, Tecson received several reminders from his District Manager

regarding the conflict of interest which his relationship with Bettsy might engender. Still, love prevailed,and Tecson married Bettsy in September 1998.

In January 1999, Tecsons superiors informed him that his marriage to Bettsy gave rise to a conflictof interest. Tecsons superiors reminded him that he and Bettsy should decide which one of themwould resign from their jobs, although they told him that they wanted to retain him as much as possiblebecause he was performing his job well.

Tecson requested for time to comply with the company policy against entering into a relationshipwith an employee of a competitor company. He explained that Astra, Bettsys employer, was planningto merge with Zeneca, another drug company; and Bettsy was planning to avail of the redundancypackage to be offered by Astra. With Bettsys separation from her company, the potential conflict of

interest would be eliminated. At the same time, they would be able to avail of the attractiveredundancy package from Astra.

In August 1999, Tecson again requested for more time resolve the problem. In September 1999,Tecson applied for a transfer in Glaxos milk division, thinking that since Astra did not have a milkdivision, the potential conflict of interest would be eliminated. His application was denied in view ofGlaxos least-movement-possible policy.

In November 1999, Glaxo transferred Tecson to the Butuan City-Surigao City-Agusan del Sur salesarea. Tecson asked Glaxo to reconsider its decision, but his request was denied.

Tecson sought Glaxos reconsideration regarding his transfer and brought the matter to GlaxosGrievance Committee. Glaxo, however, remained firm in its decision and gave Tescon until February 7,

2000 to comply with the transfer order. Tecson defied the transfer order and continued acting asmedical representative in the Camarines Sur-Camarines Norte sales area.

During the pendency of the grievance proceedings, Tecson was paid his salary, but was not issuedsamples of products which were competing with similar products manufactured by Astra. He was alsonot included in product conferences regarding such products.

Because the parties failed to resolve the issue at the grievance machinery level, they submitted thematter for voluntary arbitration. Glaxo offered Tecson a separation pay of one-half () month pay for
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every year of service, or a total of P50,000.00 but he declined the offer. On November 15, 2000, theNational Conciliation and Mediation Board (NCMB) rendered its Decisiondeclaring as valid Glaxos policyon relationships between its employees and persons employed with competitor companies, andaffirming Glaxos right to transfer Tecson to another sales territory.

Aggrieved, Tecson filed a Petition for Review with the Court of Appeals assailing the NCMB Decision.

On May 19, 2003, the Court of Appeals promulgated its Decisiondenying the Petition for Review onthe ground that the NCMB did not err in rendering its Decision. The appellate court held that Glaxospolicy prohibiting its employees from having personal relationships with employees of competitorcompanies is a valid exercise of its management prerogatives.[4]

Tecson filed a Motion for Reconsiderationof the appellate courtsDecision, but the motion wasdenied by the appellate court in itsResolutiondated March 26, 2004.[5]

Petitioners filed the instant petition, arguing therein that (i) the Court of Appeals erred in affirmingthe NCMBs finding that the Glaxos policy prohibiting its employees from marrying an employee of acompetitor company is valid; and (ii) the Court of Appeals also erred in not finding that Tecson wasconstructively dismissed when he was transferred to a new sales territory, and deprived of the

opportunity to attend products seminars and training sessions.[6]

Petitioners contend that Glaxos policy against employees marrying employees of competitorcompanies violates the equal protection clause of the Constitution because it creates invalid distinctionsamong employees on account only of marriage. They claim that the policy restricts the employees rightto marry.[7]

They also argue that Tecson was constructively dismissed as shown by the following circumstances:(1) he was transferred from the Camarines Sur-Camarines Norte sales area to the Butuan-Surigao-Agusan sales area, (2) he suffered a diminution in pay, (3) he was excluded from attending seminars andtraining sessions for medical representatives, and (4) he was prohibited from promoting respondentsproducts which were competing with Astras products.[8]

In its Comment on the petition, Glaxo argues that the company policy prohibiting its employeesfrom having a relationship with and/or marrying an employee of a competitor company is a validexercise of its management prerogatives and does not violate the equal protection clause; and thatTecsons reassignment from the Camarines Norte-Camarines Sur sales area to the Butuan City-SurigaoCity and Agusan del Sur sales area does not amount to constructive dismissal.[9]

Glaxo insists that as a company engaged in the promotion and sale of pharmaceutical products, ithas a genuine interest in ensuring that its employees avoid any activity, relationship or interest that mayconflict with their responsibilities to the company. Thus, it expects its employees to avoid havingpersonal or family interests in any competitor company which may influence their actions and decisionsand consequently deprive Glaxo of legitimate profits. The policy is also aimed at preventing a

competitor company from gaining access to its secrets, procedures and policies.

[10]

It likewise asserts that the policy does not prohibit marriageper sebut only proscribes existing or

future relationships with employees of competitor companies, and is therefore not violative of the equalprotection clause. It maintains that considering the nature of its business, the prohibition is based onvalid grounds.[11]

According to Glaxo, Tecsons marriage to Bettsy, an employee of Astra, posed a real and potentialconflict of interest. Astras products were in direct competition with 67% of the products sold by
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Glaxo. Hence, Glaxos enforcement of the foregoing policy in Tecsons case was a valid exercise of itsmanagement prerogatives.[12]In any case, Tecson was given several months to remedy the situation, andwas even encouraged not to resign but to ask his wife to resign from Astra instead.[13]

Glaxo also points out that Tecson can no longer question the assailed company policy becausewhen he signed his contract of employment, he was aware that such policy was stipulated therein. In

said contract, he also agreed to resign from respondent if the management finds that his relationshipwith an employee of a competitor company would be detrimental to the interests of Glaxo.[14]

Glaxo likewise insists that Tecsons reassignment to another sales area and his exclusion fromseminars regarding respondents new products did not amount to constructive dismissal.

It claims that in view of Tecsons refusal to resign, he was relocated from the Camarines Sur-Camarines Norte sales area to the Butuan City-Surigao City and Agusan del Sur sales area. Glaxo assertsthat in effecting the reassignment, it also considered the welfare of Tecsons family. Since Tecsonshometown was in Agusan del Sur and his wife traces her roots to Butuan City, Glaxo assumed that histransfer from the Bicol region to the Butuan City sales area would be favorable to him and his family ashe would be relocating to a familiar territory and minimizing his travel expenses.[15]

In addition, Glaxo avers that Tecsons exclusion from the seminar concerning the new anti -asthmadrug was due to the fact that said product was in direct competition with a drug which was soon to besold by Astra, and hence, would pose a potential conflict of interest for him. Lastly, the delay in Tecsonsreceipt of his sales paraphernalia was due to the mix-up created by his refusal to transfer tothe Butuan City sales area (his paraphernalia was delivered to his new sales area insteadof Naga City because the supplier thought he already transferred to Butuan).[16]

The Court is tasked to resolve the following issues: (1) Whether the Court of Appeals erred in rulingthat Glaxos policy against its employees marrying employees from competitor companies is valid, andin not holding that said policy violates the equal protection clause of the Constitution; (2) WhetherTecson was constructively dismissed.

The Court finds no merit in the petition.

The stipulation in Tecsons contract of employment with Glaxo being questioned by petitionersprovides:

10. You agree to disclose to management any existing or future relationship you may have, either byconsanguinity or affinity with co-employees or employees of competing drug companies. Should it posea possible conflict of interest in management discretion, you agree to resign voluntarily from theCompany as a matter of Company policy.

[17]

The same contract also stipulates that Tecson agrees to abide by the existing company rules ofGlaxo, and to study and become acquainted with such policies.[18]In this regard, the EmployeeHandbook of Glaxo expressly informs its employees of its rules regarding conflict of interest:

1. Conflict of Interest
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Employees should avoid any activity, investment relationship, or interest that may run counter to theresponsibilities which they owe Glaxo Wellcome.

Specifically, this means that employees are expected:

a. To avoid having personal or family interest, financial or otherwise, in any competitor supplier orother businesses which may consciously or unconsciously influence their actions or decisionsand thus deprive Glaxo Wellcome of legitimate profit.

b. To refrain from using their position in Glaxo Wellcome or knowledge of Company plans toadvance their outside personal interests, that of their relatives, friends and other businesses.

c. To avoid outside employment or other interests for income which would impair their effective jobperformance.

d. To consult with Management on such activities or relationships that may lead to conflict of interest.

1.1. Employee Relationships

Employees with existing or future relationships either by consanguinity or affinity with co-employees ofcompeting drug companies are expected to disclose such relationship to the Management. Ifmanagement perceives a conflict or potential conflict of interest, every effort shall be made, together bymanagement and the employee, to arrive at a solution within six (6) months, either by transfer toanother department in a non-counter checking position, or by career preparation toward outsideemployment after Glaxo Wellcome. Employees must be prepared for possible resignation within six (6)months, if no other solution is feasible.[19]

No reversible error can be ascribed to the Court of Appeals when it ru led that Glaxos policy

prohibiting an employee from having a relationship with an employee of a competitor company is a validexercise of management prerogative.

Glaxo has a right to guard its trade secrets, manufacturing formulas, marketing strategies and otherconfidential programs and information from competitors, especially so that it and Astra are rivalcompanies in the highly competitive pharmaceutical industry.

The prohibition against personal or marital relationships with employees of competitor companiesupon Glaxos employees is reasonable under the circumstances because relationships of that naturemight compromise the interests of the company. In laying down the assailed company policy, Glaxoonly aims to protect its interests against the possibility that a competitor company will gain access to itssecrets and procedures.

That Glaxo possesses the right to protect its economic interests cannot be denied. No less than theConstitution recognizes the right of enterprises to adopt and enforce such a policy to protect its right toreasonable returns on investments and to expansion and growth.[20]Indeed, while our laws endeavor togive life to the constitutional policy on social justice and the protection of labor, it does not mean thatevery labor dispute will be decided in favor of the workers. The law also recognizes that managementhas rights which are also entitled to respect and enforcement in the interest of fair play.[21]
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As held in a Georgia, U.S.Acase,[22]it is a legitimate business practice to guard businessconfidentiality and protect a competitive position by even-handedly disqualifying from jobs male andfemale applicants or employees who are married to a competitor. Consequently, the court ruled thanan employer that discharged an employee who was married to an employee of an active competitor didnot violate Title VII of the Civil Rights Act of 1964.[23]The Court pointed out that the policy was appliedto men and women equally, and noted that the employers business was highly competitive and thatgaining inside information would constitute a competitive advantage.

The challenged company policy does not violate the equal protection clause of the Constitution aspetitioners erroneously suggest. It is a settled principle that the commands of the equal protectionclause are addressed only to the state or those acting under color of its authority.[24]Corollarily, it hasbeen held in a long array of U.S. Supreme Court decisions that the equal protection clause erects noshield against merely private conduct, however, discriminatory or wrongful.[25]The only exceptionoccurs when the state[26]in any of its manifestations or actions has been found to have becomeentwined or involved in the wrongful private conduct.[27]Obviously, however, the exception is notpresent in this case. Significantly, the company actually enforced the policy after repeated requests tothe employee to comply with the policy. Indeed, the application of the policy was made in an impartial

and even-handed manner, with due regard for the lot of the employee.In any event, from the wordings of the contractual provision and the policy in its employee

handbook, it is clear that Glaxo does not impose an absolute prohibition against relationships betweenits employees and those of competitor companies. Its employees are free to cultivate relationships withand marry persons of their own choosing. What the company merely seeks to avoid is a conflict ofinterest between the employee and the company that may arise out of such relationships. As succinctlyexplained by the appellate court, thus:

The policy being questioned is not a policy against marriage. An employee of the company remains freeto marry anyone of his or her choosing. The policy is not aimed at restricting a personal prerogative thatbelongs only to the individual. However, an employees personal decision does not detract the

employer from exercising management prerogatives to ensure maximum profit and business success. ..[28]

The Court of Appeals also correctly noted that the assailed company policy which forms part ofrespondents Employee Code of Conduct and of its contracts with its employees, such as that signed byTecson, was made known to him prior to his employment. Tecson, therefore, was aware of thatrestriction when he signed his employment contract and when he entered into a relationship withBettsy. Since Tecson knowingly and voluntarily entered into a contract of employment with Glaxo, thestipulations therein have the force of law between them and, thus, should be complied with in goodfaith.[29]He is therefore estopped from questioning said policy.

The Court finds no merit in petitioners contention that Tecson was constructively dismissed when

he was transferred from the Camarines Norte-Camarines Sur sales area to the Butuan City-Surigao City-Agusan del Sur sales area, and when he was excluded from attending the companys seminar on newproducts which were directly competing with similar products manufactured by Astra. Constructivedismissal is defined as a quitting, an involuntary resignation resorted to when continued employmentbecomes impossible, unreasonable, or unlikely; when there is a demotion in rank or diminution in pay;or when a clear discrimination, insensibility or disdain by an employer becomes unbearable to theemployee.[30]None of these conditions are present in the instant case. The record does not show thatTecson was demoted or unduly discriminated upon by reason of such transfer. As found by the
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appellate court, Glaxo properly exercised its management prerogative in reassigning Tecson tothe Butuan City sales area:

. . . In this case, petitioners transfer to another place of assignment was merely in keeping with thepolicy of the company in avoidance of conflict of interest, and thus validNote that [Tecsons] wife holdsa sensitive supervisory position as Branch Coordinator in her employer-company which requires her towork in close coordination with District Managers and Medical Representatives. Her duties includemonitoring sales of Astra products, conducting sales drives, establishing and furthering relationship withcustomers, collection, monitoring and managing Astras inventoryshe therefore takes anactiveparticipation in the market war characterized as it is by stiff competition among pharmaceuticalcompanies. Moreover, and this is significant, petitioners sales territory covers Camarines Sur andCamarines Norte while his wife is supervising a branch of her employer in Albay. The proximity of theirareas of responsibility, all in the same Bicol Region, renders the conflict of interest not only possible, butactual, as learning by one spouse of the others market strategies in the region would beinevitable. [Managements] appreciation of a conflict of interest is therefore not merely illusory andwanting in factual basis[31]

InAbbott Laboratories (Phils.), Inc. v. National Labor Relations Commission,[32]which involved acomplaint filed by a medical representative against his employer drug company for illegal dismissal forallegedly terminating his employment when he refused to accept his reassignment to a new area, theCourt upheld the right of the drug company to transfer or reassign its employee in accordance with itsoperational demands and requirements. The ruling of the Court therein, quoted hereunder, also findsapplication in the instant case:

By the very nature of his employment, a drug salesman or medical representative is expected totravel. He should anticipate reassignment according to the demands of their business. It would be apoor drug corporation which cannot even assign its representatives or detail men to new markets callingfor opening or expansion or to areas where the need for pushing its products is great. More so if such

reassignments are part of the employment contract.[33]

As noted earlier, the challenged policy has been implemented by Glaxo impartially anddisinterestedly for a long period of time. In the case at bar, the record shows that Glaxo gave Tecsonseveral chances to eliminate the conflict of interest brought about by his relationship with Bettsy. Whentheir relationship was still in its initial stage, Tecsons supervisors at Glaxo constantly reminded himabout its effects on his employment with the company and on the companys interests. After Tecsonmarried Bettsy, Glaxo gave him time to resolve the conflict by either resigning from the company orasking his wife to resign from Astra. Glaxo even expressed its desire to retain Tecson in its employbecause of his satisfactory performance and suggested that he ask Bettsy to resign from her companyinstead. Glaxo likewise acceded to his repeated requests for more time to resolve the conflict ofinterest. When the problem could not be resolved after several years of waiting, Glaxo was constrainedto reassign Tecson to a sales area different from that handled by his wife for Astra. Notably, the Courtdid not terminate Tecson from employment but only reassigned him to another area where his homeprovince, Agusan del Sur, was included. In effecting Tecsons transfer, Glaxo even considered thewelfare of Tecsons family.Clearly, the foregoing dispels any suspicion of unfairness and bad faith onthe part of Glaxo.[34]

WHEREFORE, the Petitionis DENIED for lack of merit. Costs against petitioners
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Yrasuegui v. PALG.R. no. 168081. Oct. 17, 2008Facts:Petitioner Yrasuegui, an international flight steward of Philippine Airlines Inc. (PAL) wasdismissed because of his failure toadhere to the weight standards of the airline company.In consequence thereof, petitioner filed a complaint for illegaldismissal against PAL before theLabor Arbiter (LA). Te Labor Arbiter ruled that the petitioner was illegally dismissed. It alsoissued a writof execution directing the reinstatement of the petitioner without loss of seniority and other benefits, andalsothe payment of backwages. Respondent PAL appealed to the NLRC which affirmed the LAsdecision. Respondent PALappealed to the Court of Appeals. CA reversed the NLRC case.Issue:Was the dismissal of the petitioner valid?Held:Yes. The Court upheld the legality of the petitioners dismissal. Separation pay, however, should beawarded in favor of theemployee as an act of social justice or based on equity. This is so because hisdismissal is not serious misconduct. Neither is itreflective of his moral character.The obesity of petitioner, when placed in the context of his work as flight attendant, becomesananalogous cause under Article 282 (e) of the Labor ode. His obesity may not be unintended, but isnonetheless voluntary.Voluntariness basically means that the just cause is solely attributable to theemployee without any external force influencingor controlling his actions. This element runs through all just causes under Art. 282, whether they be in nature of a wrongfulaction or omission. Gross and habitualneglect, a recognized just cause, is considered voluntary although it lacks the element

of intent found inArt. 282 (a), (c), and (d).Employment in particular jobs may not be limited to persons of a particular sex,religion, or national origin unless the employer can show that sex, religion, or national origin is an actual qualificationforperforming the job. The qualification is called a bona fide occupational qualification (BFOQ).[55]Inthe United States, there are a few federal and many state job discrimination laws that contain an exceptionallowing anemployer to engage in an otherwise unlawful form of prohibited discrimination when theaction is based on a BFOQnecessary to the normal operation of a business or enterprise.Argument that BFQQ is a statutory defense must fail.Petitioner contends that BFOQ is a statutory defense. It does not exist if there is no statute providing for it.]Further, there is no existing BFOQ statute that could justify his dismissal.First, the Constitution, the Labor Code, and RA No.

7277 or the Magna Carta for DisabledPersons contain provisions similar to BFOQ.Second, inBritish Columbia Public Service Employee Commission (BSPSERC) v. The BritishColumbia Government and ServiceEmployees Union (BCGSEU), the Supreme Court of Canada adoptedthe so-called Meiorin Test in determining whether an employment policy isjustified. Under this test,(1) the employer must show that it adopted the standard for a purpose rationallyconnected to the performance of the job; (2) the employer must establish that the standard is reasonably necessary totheaccomplishment of that work-related purpose; and (3) the employer must establish that the standard isreasonablynecessary in order to accomplish the legitimate work-related purpose. Similarly, inStar Paper

[G.R. No. 127553. November 28, 1997]

EDDIE MANUEL, ROMEO BANA, ROGELIO PAGTAMA, JR. and JOELREA,peti t ioners, vs .N.C. CONSTRUCTION SUPPLY, JOHNNY


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LIM, ANITA SY and NATIONAL LABOR RELATIONSCOMMISSION (SECOND DIVISION), respondents.

D E C I S I O N

PUNO, J.:

This special civil action for certiorari seeks to review the decision of theNational Labor Relations Commission (NLRC) dated June 27, 1996 in NLRC-NCR-00-07-04925-95 entitled Eddie Manuel, Romeo Bana, Rogelio Patama,Jr. and Joel Rea v. N.C. Construction Supply, Johnny Lim and Anita Sy. [1]

Petitioners Eddie Manuel, Romeo Bana, Rogelio Pagtama, Jr. and JoelRea were employed as drivers at N.C. Construction Supply owned by privaterespondents Johnny Lim (a.k.a. Lao Ching Eng) and Anita Sy.

On June 3, 1995, the security guards of respondent company caughtAurelio Guevara, a company driver, and Jay Calso, his helper ("pahinante"),taking out from the company premises two rolls of electrical wireworth P500.00 without authority. Calso was brought to the Pasig Policestation for questioning. During the investigation, Calso named seven otheremployees who were allegedly involved in a series of thefts at respondentcompany, among them petitioners Manuel, Bana, Pagtama, Jr. and Rea. [2]

On June 5, 1995, petitioners received separate notices from respondentcompany informing them that they were positively identified by their co-worker, Jay Calso, as perpetrators of the series of thefts committed at

respondent company. They were thus invited to the Pasig police station forinvestigation regarding their alleged involvement in the offense.

Atty. Ramon Reyes, private respondents' counsel conducted in their behalfan investigation regarding petitioners' involvement in the theft. Atty. Reyesinterrogated the petitioners on their alleged participation in the series of theftscommitted at respondent company. Petitioners initially denied thecharge. However, after being positively identified by Jay Calso, petitionersadmitted their guilt and offered to resign in exchange for the withdrawal of anycriminal charge against them.[3]Petitioners Bana and Rea filed separate

resignation letters while petitioners Manuel and Pagtama, Jr. tendered theirresignations orally. Petitioner Bana's resignation letter[4]reads:

Hunyo 6, 1995

Dear Bong,
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Sa ganitong sitwasyon nagpapasalamat rin ako na humantong sa ganito para hindi na

tumagal ang masama naming gawain. Piro lubos rin ako nagpapasalamat sa iyongpagpapatawad sa akin, at ang masasabi ko lang na I'm very, very sorry na lang. Kasi

alam mo naman na kapos na kapos talaga ako. Kaya alam mo halos hindi na nga ako

nag-a-absent dahil sa sahod ko lang kapos pa sa pamilya ko. Kaya sana sa pag-resign

ko sana mabigyan mo man lang ako nang kaunti para makapamasahi man lang pau-wisa Mindanao kasama ang mga anak ko. Yon lang . . .

Gumagalang,

Boy

Petitioner Rea's resignation letter,[5]on the other hand, states:

Hunyo 6, 1995

Boss,

Dahil sa hindi maganda ang aking naging performance sa inyo sa loob ng NC

Construction Supply sa nakakahiya na aking nasangkutan magreresign na ho ako,

magsisimula Hunyo 6, 1995. Siguro naman Boss alam naman ninyo ang totoonakikisama lang ako sa mga dati ninyong tauhan dahil kailangan ko talaga ng trabaho

kahit labag man sa aking kalooban ang gumawa ng hindi maganda.

Boss, kahit paano sana maintindihan mo ako, tatanggalin nyo na ho ako sana bigyan

nyo na lang ako ng kahit pamasahe namin pauwing probinsya para makapagbagongbuhay na ako.

Salamat po.

Sumasainyo,

Joel Rea

Atty. Reyes accepted petitioners' resignation effective June 5, 1995.

On July 17, 1995, petitioners filed a complaint against private respondentsfor illegal dismissal. Petitioners alleged that they were not informed of thecharge against them nor were they given an opportunity to dispute thesame. They also alleged that their admission made at the Pasig police stationregarding their involvement in the theft as well as their resignation were notvoluntary but were obtained by private respondents' lawyer by means of threatand intimidation.
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Labor Arbiter Manuel R. Caday ruled in favor of petitioners and foundtheir dismissal to be illegal. He held that private respondents failed to show ajust cause for the termination of petitioners' services. He declared thatpetitioners' admission regarding their involvement in the theft wasinadmissible in evidence as it was taken without the assistance of counsel, in

violation of Section 12 Article III of the 1987 Constitution. [6]He also held thatpetitioners were not afforded due process before their services wereterminated. Hence, Labor Arbiter Caday ordered private respondents toreinstate petitioners to their former position without loss of seniority rights andto pay them full backwages. He also ordered private respondents to paypetitioners their service incentive leave benefits plus attorney's fees.[7]

On appeal, the NLRC reversed the decision of the Labor Arbiter. It ruledthat petitioners were dismissed for a just cause. It held that petitioners failedto adduce competent evidence to show a vitiation of their admission regarding

their participation in the theft. It further stated that such admission may beadmitted in evidence because Section 12 Article III of the 1987 Constitutionapplies only to criminal proceedings but not to administrativeproceedings. The NLRC, however, agreed with the Labor Arbiter thatpetitioners were denied due process. Hence, it ordered private respondentsto pay petitioners the amount of P1,000.00 as indemnity. The dispositiveportion of the decision reads:

WHEREFORE, premises duly considered, the decision appealed from is herebyreversed and set aside. A new one is hereby entered ordering respondents to pay to

the complainants the amount of P1,000.00 each as and for indemnity for failure of therespondents to observe due process.

SO ORDERED.[8]

Petitioners filed the instant petition on the following grounds:

1. The National Labor Relations Commission committed grave abuse of

discretion in declaring the dismissal legal;

2. The National Labor Relations Commission committed grave abuse ofdiscretion in declaring that the admission of petitioners is admissible in

evidence despite the fact that it was obtained in a hostile environment

and without the presence or assistance of counsel;

3. The National Labor Relations Commission committed grave abuse of

discretion in finding that respondents N.C. Construction Supply et al. are
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right in withdrawing their trust and confidence with petitioners without

any valid and legal basis.[9]

We affirm the decision of the NLRC.

An employer has a right to terminate the services of an employee subjectto both substantive and procedural limitations. This means that (1) thedismissal must be for a just or authorized cause provided in the LaborCode,[10]and (2) the employee must be accorded due process before hisemployment is terminated. The validity of the dismissal hinges on theemployer's compliance with these two requirements. [11]

In the case at bar, petitioners who were employed as drivers atrespondent company were found guilty of stealing company propertyconsisting of electrical wire, welding rod, G.I. sheet, steel bar and

plywood. Article 282 of the Labor Code authorizes an employer to terminatethe services of an employee for loss of trust and confidence, provided that theloss of confidence arises from particular proven facts. The law does notrequire proof beyond reasonable doubt of the employee'smisconduct. Substantial evidence is sufficient.[12]Substantial evidence hasbeen defined as such relevant evidence which a reasonable mind mightaccept as adequate to justify a conclusion.[13]

Petitioners' culpability in the instant case was sufficiently proved by privaterespondents. Jay Calso, an employee of respondent company who haspersonal knowledge about the series of thefts that has been going on atrespondent company, positively identified petitioners as among theperpetrators of the theft. Petitioners have not shown any ill motive on the partof Calso to implicate them in the offense, unless it was true. In addition,petitioners admitted their participation in the theft during an investigationconducted by private respondents' lawyer.

We are not convinced by petitioners' allegation that such admission wasobtained by means of threat or intimidation as such allegation is couched ingeneral terms and is unsupported by evidence.

We also reject petitioners' argument that said admission is inadmissible asevidence against them under Section 12 Article III of the 1987 Constitution.The right to counsel under Section 12 of the Bill of Rights is meant to protect asuspect in a criminal case under custodial investigation. Custodialinvestigation is the stage where the police investigation is no longer a generalinquiry into an unsolved crime but has begun to focus on a particular suspectwho had been taken into custody by the police to carry out a process ofinterrogation that lends itself to elicit incriminating statements. It is when
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questions are initiated by law enforcement officers after a person has beentaken into custody or otherwise deprived of his freedom of action in anysignificant way. The right to counsel attaches only upon the start of suchinvestigation.[14]Therefore, the exclusionary rule under paragraph (3) Section12 of the Bill of Rights applies only to admissions made in a criminal

investigation but not to those made in an administrative investigation.

In the case at bar, the admission was made by petitioners during thecourse of the investigation conducted by private respondents' counsel todetermine whether there is sufficient ground to terminate theiremployment. Petitioners were not under custodial investigation as they werenot yet accused by the police of committing a crime. The investigation wasmerely an administrative investigation conducted by the employer, not acriminal investigation. The questions were propounded by the employer'slawyer, not by police officers. The fact that the investigation was conducted

at the police station did not necessarily put petitioners under custodialinvestigation as the venue of the investigation was merely incidental. Hence,the admissions made by petitioners during such investigation may be used asevidence to justify their dismissal.

Private respondents, however, failed to observe due process interminating the employment of petitioners. Due process demands that theemployer should furnish the worker whose employment is sought to beterminated a written notice containing a statement of the cause(s) fortermination and afford him ample opportunity to be heard and to defend

himself with the assistance of a representative if he so desires. Specifically,the employer must furnish the worker with two written noticesbeforetermination of employment can be legally effected: (1) notice which apprisesthe employee of the particular acts or omissions for which his dismissal issought, and (2) the subsequent notice which informs the employee of theemployer's decision to dismiss him.[15]There is no showing in this case thatprivate respondents furnished petitioners with such notices. Privaterespondents, through their counsel, Atty. Reyes, immediately terminatedpetitioners' services upon conclusion of the investigation. Private respondentsmust therefore indemnify petitioners for failure to observe due process before

dismissing them from work.IN VIEW WHEREOF, the petition is DISMISSED. The assailed decision is

hereby AFFIRMED. No costs.

SO ORDERED

G.R. Nos. 170384-85 March 9, 2007
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LORNA DISING PUNZAL,Petitioner,vs.ETSI TECHNOLOGIES, INC., WERNER GEISERT, and CARMELO D. REMUDARO,Respondents.

D E C I S I O N

CARPIO MORALES,J.:

Petitioner, Lorna Dising Punzal, had been working for respondent, ETSI Technologies, Inc. (ETSI),for 12 years prior to the termination of her services on November 26, 2001 on which date she washolding the position of Department Secretary.

On October 30, 2001, petitioner sent an electronic mail (e-mail) message to her officematesannouncing the holding of a Halloween party that was to be held in the office the following day. Thee-mail message read verbatim:

Dear ETSI-JMT Colleagues,

Good day!

As you all know, tomorrow is the day before HALLOWEEN. And many of our kids will go around"TRICK OR TREATING". We will be dressing them up in costumes of all sorts, from cute tooutrageous, from wild to "scary."

What we want to have is a similar activity here in the office. So we invite you to participate in thiseffort. You can also dress your kids up in funny costumes. Also the kids will then go around theoffice Trick or Treating. So, we ask you to prepare your Treats, like candies, biscuits, cookies, etc.,(Cash is also welcome for parents like me . . . he he he)

Why are we doing this? Well, we just want the kids to have a good time. Kung gusto ninyo, mag-

costume din kayo.

Alright! See you tomorrow morning, [October 31, 2001].1(Underscoring supplied)

Petitioners immediate superior, respondent Carmelo Remudaro (Remudaro), who was one of thoseto whom the e-mail message was sent, advised petitioner to first secure the approval of the SeniorVice President, respondent Werner Geisert (Geisert), for the holding of the party in the office.

Petitioner soon learned that Geisert did not approve of the plan to hold a party in the office. Shethereupon sent also on October 30, 2001 another e-mail message to her officemates, readingverbatim:

Sorry for the mail that I sent you, unfortunately the SVP of ETSI Technologies, Inc. did not agree toour idea to bring our children in the office for the TRICK or TREATING. He was so unfairpara bangpalagi siyang iniisahan sa trabahobakit most of the parents na mag-joined ang anak ay naka-VLnaman. Anyway, solohin na lang niya bukas ang office.

Anyway, to those parents who would like to bring their Kids in Megamall there will be Trick orTreating at Mc Donalds Megamall Bldg. A at 10:00 AM tomorrow and lets not spoil the fun for ourkids.2(Underscoring supplied)
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Remudaro and Arnold Z. David (David), the Assistant Vice President of Human Resources/TQM ofETSI, later informed petitioner, by letter of November 13, 2001, that Geisert got a copy of her e-mailmessage and that he required her to explain in writing within 48 hours why she

. . . should not be given disciplinary action for committing Article IV, No. 5 & 8 Improper conduct oracts of discourtesy or disrespect and Making malicious statements concerning Company

Officer,whereby such offenses may be subject to suspension to termination depending upon thegravity of the offense/s as specified in our ETSIsCode of Conduct and Discipline.3(Emphasis in theoriginal)

Petitioner replied by letter of November 14, 2001 that she had no malicious intention in sending thesecond e-mail message and that she "never expected such kind of words can be called as acts ofdiscourtesy or disrespect."4

On November 19, 2001, Geisert and Remudaro conferred with petitioner to give her a chance toexplain her side.5

David and Remudaro subsequently sent petitioner a letter on November 26, 2001, finding her

explanation "not acceptable" and terminating her services, effective immediately, "for committingArticle IV, No[s]. 5 & 8, Improper conduct or act of discourtesy or disrespect and making maliciousstatements concerning company officer."6

On February 11, 2002, petitioner filed before the National Labor Relations Commission (NLRC) acomplaint7for illegal dismissal against ETSI, Geisert, and Remudaro.

By Order of November 26, 2002, the Labor Arbiter dismissed petitioners complaint, finding that shewas legally dismissed for serious misconduct, and that she was afforded due process.8

On petitioners appeal, the NLRC, by Resolution9dated October 27, 2003, found that while she wasindeed guilty of misconduct, the penalty of dismissal was disproportionate to her infraction.10The

NLRC thus ordered that petitioner was entitled to reinstatement which, however, was no longerfeasible due to strained relations. The NLRC thus ordered that petitioner be awarded separation payequivalent to one month pay for every year of service, a period of at least six months to beconsidered one whole year.11

Noting that petitioner was not entirely faultless, the NLRC denied her prayer for backwages12as wellas her prayer for exemplary and moral damages and attorneys fees in the absence of the legal conditions justifying their award.13

Both parties filed their respective motions for reconsideration14which the NLRC denied.15Bothparties thereupon filed their respective petitions for certiorari16with the Court of Appeals.

In the petition of petitioner, docketed as CA-G.R. SP No. 83296, she questioned the denial of herprayer for backwages.17Upon the other hand, in the petition of respondent ETSI, et al., docketed asCA-G.R. SP No. 83205, they questioned the finding of illegal dismissal, the grant of separation pay,and the imputation of liability to Geisert and Remudaro.18

In her comment to the petition of ETSI, et al. in CA-G.R. SP No. 83205, petitioner raised the issue ofdue process, alleging that her employer did not inform her of her right to be assisted by counselduring the conference with respondents Geisert and Remudaro.19
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By Decision20of May 13, 2005, the Court of Appeals, which priorly consolidated the petitions of bothparties, held that petitioners dismissal was in order:21

The gravity of Punzals infraction is borne by the fact that her e-mail message to the workers ofETSI tended to cast scorn and disrespect toward a senior vice president of the company. Themessage itself resounds of subversion and undermines the authority and credibility of management.

x x x x

Also, this message was not a mere expression of dissatisfaction privately made by one person toanother, but was circulated to everyone in the work area. The message was sent close at the heelsof SVP Geiserts disapproval of Punzals plan to hold a Halloween affair in the office, because thesaid event would disrupt the operations and peace and order in the office. Punzaltherefore displayed a tendency to act without managements approval, and even againstmanagements will, as she invited her co-workers to join a trick or treating activity at another venueduring office hours.

The message also comes across as an encouragement to ignore SVP Geiserts authority, and

portrayed him as unworthy of respect because of his unpopular personality.

This is in clear violation of Article IV, Section 5 of the companys Code of Conduct and Discipline,which clearly imposes the penalty of "suspension to dismissal, depending upon the gravity of theoffense" in cases where an employee displays "improper conduct or acts of discourtesy or disrespectto fellow employees, visitors, guests, clients, at any time."

The imposition of the penalty of dismissal is proper, because of the gravity of Punzals misconduct,as earlier pointed out, and considering that:

(1) Punzals statements were discourteous and disrespectful not only to a mere co-employee, but to a high ranking executive official of the company;

(2) Punzals statements tended to ridiculeand undermine the credibility and authority of SVPGeisert, and even encouraged disobedience to the said officer;

(3) Punzals message was sent to a great number of employees of ETSI, which tended tosow dissent and disrespect to management among a great number of employees of ETSI;

(4) Punzals message could not have been made in good faith, because the message itselfused language that placed SVP Geisert in ridicule and portrayed him as an object of scorn,betraying the senders bad faith.

Given these circumstances, the fact that Punzals infraction occurred only once should be largely

insignificant. The gravity and publicity of the offense as well as its adverse impact in the workplace ismore than sufficient to place the same in the level of a serious misconduct.22(Underscoring supplied)

Contrary to petitioners contention, the Court of Appeals also found that due process was observedin her dismissal.23

The Court of Appeals thus reinstated the Labor Arbiters Order. Thus it disposed:
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WHEREFORE, premises considered, the petition filed by Lorna Dising Punzal in CA-G.R. SP No.83296 is hereby DISMISSED, while the petition filed by ETSI, Werner Geisert and Carmelo D.Remudaro is hereby GRANTED. The assailed Resolutions, dated October 27, 2003 and January 28,2004, of the respondent National Labor Relations Commission are hereby SET ASIDE. In lieuthereof, the Decision of Labor Arbiter Joel S. Lustria, dated November 26, 2002, dismissing thecomplaint filed by Lorna Dising Punzal is hereby REINSTATED.

SO ORDERED.24(Underscoring supplied)

Hence, petitioners present Petition for Review on Certiorari,25faulting the appellate court to haveerred

. . . WHEN IT RULED THAT PETITIONERS STATEMENT WAS DISCOURTEOUS ANDDISRESPECTFUL CONSTITUTING GROSS DISRESPECT AND SERIOUS MISCONDUCT;

. . . WHEN IT FOUND THAT DUE PROCESS WAS ACCORDED THE PETITIONER;

. . . WHEN IT FAILED TO AWARD THE PETITIONER HER RIGHT TO REINSTATEMENT

AND BACKWAGES.26

Petitioner posits that her second e-mail message was merely an exercise of her right to freedom ofexpression without any malice on her part.27

On the other hand, ETSI, et al. maintain that petitioners second e -mail message was tainted withbad faith and constituted a grave violation of the companys code of discipline.28

In Philippines Today, Inc. v. NLRC,29this Court, passing on the attitude or respect that an employeeis expected to observe towards an employer, held:

Alegres choice of words and way of expression betray his allegation that the memorandum was

simply an "opportunity to open the eyes of (Petitioner) Belmonte to the work environment inpetitioners newspaper with the end in view of persuading (her) to take a hand at improving saidenvironment." Apprising his employer (or top-level management) of his frustrations in his job anddifferences with his immediate superior is certainly not done in an abrasive, offensive, anddisrespectful manner.A cordial or, at the very least, civil attitude, according due deference to onessuperiors, is still observed, especially among high-ranking management officers. The Court takes

judicial notice of the Filipino values ofpakikisamaandpaggalangwhich are not only prevalentamong members of a family and community but within organizations as well, including work sites. Anemployee is expected to extend due respect to management, the employer being the "proverbial henthat lays the golden egg," so to speak. An aggrieved employee who wants to unburden himself of hisdisappointments and frustrations in his job or relations with his immediate superior would normallyapproach said superior directly or otherwise ask some other officer possibly to mediate and discussthe problem with the end in view of settling their differences without causing ferocious conflicts. No

matter how [much] the employee dislikes the employer professionally, and even if he is in aconfrontational disposition, he cannot afford to be disrespectful and dare to talk with an unguardedtongue and/or with a bileful pen.30(Underscoring supplied)

A scrutiny of petitioners second e-mail message shows that her remarks were not merely anexpression of her opinion about Geiserts decision; they were directed against Geisert himself, viz:"He was so unfair . . . para bang palagi siyang ini is ahan sa trabaho. . . Anyway, solohin nalang niya bukas ang office." (Emphasis supplied)31
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As the Court of Appeals noted, petitioner, in her closing statement"Anyway, to those parents whowould like to bring their Kids in Megamall there will be Trick or Treating at Mc Donalds x x xtomorrow and lets not spoil the fun for our kids"32even invited her co-workers to join a trick ortreating activity at another venue during office hours33(10:00 AM), October 31, 2001 being aWednesday and there is no showing that it was declared a holiday, encouraging them to ignoreGeiserts authority.

Additionally, petitioner sent the e-mail message in reaction to Geiserts decision which he had all theright to make. That it has been a tradition in ETSI to celebrate occasions such as Christmas,birthdays, Halloween, and others34does not remove Geiserts prerogative to approve or disapproveplans to hold such celebrations in office premises and during company time. It is settled that

x x x it is the prerogative of management to regulate, according to its discretion and judgment, allaspects of employment. This flows from the established rule that labor law does not authorize thesubstitution of the judgment of the employer in the conduct of its business. Such managementprerogative may be availed of without fear of any liability so long as it is exercised in good faith forthe advancement of the employers interest and not for the purpose of defeating or circumventing therights of employees under special laws or valid agreement and are not exercised in a malicious,harsh, oppressive, vindictive or wanton manner or out of malice or spite.35(Underscoring supplied)

In the case at bar, the disapproval of the plan to hold the Halloween party on October 31, 2001 maynot be considered to have been actuated by bad faith. As the Labor Arbiter noted:

It may not be ignored that holding a trick or treat party in the office premises of respondent ETSIwould certainlyaffect the operations of the office, since children will be freely roaming around theoffice premises, things may get misplaced and the noise in the office will simply be too hard toignore. Contrary to complainants position, it is immaterial if the parents of the children who willparticipate in the trick or treat will be on vacation leave, since it is the work of the employees who willnot be on leave and who will be working on that day which will be disrupted, possibly resulting in thedisruption of the operations of the company.36(Underscoring supplied)

Given the reasonableness of Geiserts decision that provoked petitioner to send the second e-mailmessage, the observations of the Court of Appeals that "the message x x x resounds of subversionand undermines the authority and credibility of management"37and that petitioner "displayed atendency to act without managements approval, and even against managements will" are welltaken.38

Moreover, in circulating the second e-mail message, petitioner violated Articles III (8) and IV (5) ofE

Documents

Labor Relations Case 1