SECOND DIVISION
[G.R. No. 146741. February 27, 2002]
NATIONAL BOOKSTORE, INC., and ALFREDO C. RAMOS, petitioners, vs. COURT OF APPEALS SPECIAL EIGHT DIVISION, NATIONAL LABOR RELATIONS COMMISSION, MARIETTA M. YMASA and EDNA L. GABRIEL, respondents.
D E C I S I O N
BELLOSILLO, J.:
This petition for review under Rule 45 seeks to set aside the
Petitioner National Bookstore, Inc., employed private respondent
Marietta M. Ymasa on
On 28 June 1992, a Sunday, private respondents reported for work at their place of assignment, i.e., the SM North Edsa Branch of petitioner National Bookstore to count the previous day’s sales proceeds as a matter of routine. Private respondent Ymasa counted the money intended to be deposited with INTERBANK while private respondent Gabriel attended to the money for deposit with PCIB. The counting was done in the presence of a watcher, one Maricen Cupcupin. After preparing the corresponding deposit slips which Cupcupin accordingly signed, the counted money was placed inside two (2) separate plastic bags which were sealed with scotch tapes. The plastic bags were then tied together with rubber band, with the bag containing the money intended for deposit with INTERBANK placed on top. Thereafter, private respondent Ymasa put the plastic bags inside her cabinet which she accordingly locked.
Since both Branch Manager Charito M.
Gonzales and Assistant Branch Manager Roberto Tagalog
were not in their offices, it was only at around closing time at
On P42,758.70.
All efforts made to locate the missing amount failed. Thus, on
On
Petitioner National Bookstore, after finding the explanations of
private respondents unsatisfactory, notified them on
On
On
We find for private respondents. The petition is without merit.
The onus of proving that the dismissal of the employee was for a valid
and authorized cause rests on the employer[10] and failure to discharge the same would mean
that the dismissal was not justified and therefore illegal.[11]
The requisites for a valid dismissal are: (a) the employee must
be afforded due process, i.e., he must be given an opportunity to be heard and
to defend himself; and, (b) the dismissal must be for a valid cause as provided
in Art. 282[12] of the Labor Code[13] or for any of the authorized causes under
Arts. 283[14] and 284[15] of the same Code.
Anent the first requisite, the employer must furnish the employee
with two (2) written notices: (a) a written notice containing a statement of
the cause for the termination to afford the employee ample opportunity to be
heard and defend himself with the assistance of his representative, if he so
desires; and, (b) if the employer decides to terminate the services of the
employee, the employer must notify him in writing of the decision to dismiss
him, stating clearly the reasons therefor.[16]
Petitioner National Bookstore, as correctly pointed out by the
Labor Arbiter in his decision, more than substantially observed this
requirement. On
To quote petitioner National Bookstore’s Personnel Manager
Padilla, Jr., “we are constrained to terminate your employment or services with
the Company effective immediately for gross neglect of duty and loss of
confidence.”[17] Gross neglect of duty and loss of confidence
are just causes for termination of employment by an employer.[18]
Gross negligence has been defined as the want or absence of or
failure to exercise slight care or diligence, or the entire absence of care. It
evinces a thoughtless disregard of consequences without exerting any effort to avoid
them.[19] A perusal of the records of the case does
not in any way show that private respondents were even remotely negligent of
their duties so as to cause the loss of petitioner National Bookstore’s funds.
Private respondents were able to illustrate with candor and sincerity the
procedure they took prior to the loss which was witnessed by an employee of
petitioner National Bookstore. They were in fact subjected to a thorough body
search by petitioner National Bookstore’s lady guard before leaving their place
of work on the date in issue, a claim not controverted
by petitioners. Moreover, it was not even shown that they had access to the
vault where the money was kept.
Significantly, in order to constitute a just cause for the
employee’s dismissal, the neglect of duties must not only be gross but also
habitual. Thus, the single or isolated act of negligence does not constitute a
just cause for the dismissal of the employee.[20] Verily, assuming arguendo that private respondents
were negligent, although we find otherwise, it could only be a single or an
isolated act that cannot be categorized as habitual, hence, not a just cause
for their dismissal.
On the other hand, loss of trust and confidence to be a valid
ground for dismissal must be based on a willful breach of trust and founded on
clearly established facts.[21] A breach is willful if it is done
intentionally, knowingly and purposely, without justifiable excuse, as
distinguished from an act done carelessly, thoughtlessly, heedlessly or
inadvertently.[22] The Labor Arbiter, the NLRC and the Court of
Appeals were unanimous in declaring that there was no willful breach of
confidence in the instant case as petitioners failed to establish with
certainty the facts upon which it could be based. Indeed, petitioner National Bookstore lost
some funds but that private respondents were responsible therefor
was not supported by any substantial evidence.
Private respondents have been illegally dismissed. Consequently,
they are entitled to reinstatement to their former positions without loss of
seniority rights and payment of back wages.[23] However, if such reinstatement would prove
impracticable and hardly in the best interest of the parties, perhaps due to
the lapse of time since their dismissal, private respondents should be awarded
separation pay in lieu of reinstatement[24] computed at one (1) month salary for every
year of service with a fraction of six (6) months equivalent to one (1) whole
year.[25]
Consequently private respondents, for having been illegally
dismissed after
The deletion of the award of damages is sustained for lack of
sufficient basis to justify them. Certainly, the finding that private
respondents have been wrongfully dismissed does not automatically signify that
petitioners are liable for moral and other damages. Award of moral damages
cannot be justified solely upon the premise that the employer fired his
employee without just cause or due process. Additional facts must be pleaded
and proved to warrant the grant of moral damages under the Civil Code, i.e.,
that the act of dismissal was attended by bad faith or fraud, or was oppressive
to labor, or done in a manner contrary to morals, good customs, or public
policy; and, that social humiliation, wounded feelings, grave anxiety, etc.,
resulted therefrom.[27] These were not shown in the instant case.
As regards exemplary damages, they may only be awarded if the
dismissal was shown to have been effected in a wanton, oppressive or malevolent
manner,[28] or where the party involved is entitled to
moral or compensatory damages.[29] Again, this was not adequately established
by evidence.
However, as for attorney’s fees, private respondents are entitled
thereto as they were compelled to litigate with petitioners and incur expenses
to enforce and protect their interests.[30] The award by the Labor Arbiter of P22,268.22
and P22,916.41 as attorney’s fees to private respondents Marietta M. Ymasa and Edna L. Gabriel, respectively, being reasonable
is sustained.
WHEREFORE, the Petition is DENIED for lack of merit. The
Decision of the Court of Appeals dated
SO ORDERED.
Mendoza, Quisumbing, Buena, and De
Leon, Jr., JJ., concur.
[1] Decision penned by Associate Justice Ramon Mabutas, Jr., concurred in by Associate Justices Demetrio G. Demetria and Jose L. Sabio, Jr.; Rollo, pp. 26-55.
[2] Resolution penned by Associate Justice Ramon Mabutas, Jr., concurred in by Associate Justices Jose L. Sabio, Jr. and Alicia L. Santos; id., p. 72.
[3] Resolution penned by Commissioner Joaquin A. Tanodra, concurred in by Commissioner Ireneo B. Bernardo. Commissioner Lourdes C. Javier was on leave; CA Rollo, pp. 19-29.
[4] Resolution penned by Commissioner Tito F. Genilo, concurred in by Commissioners Lourdes C. Javier and Ireneo B. Bernardo; id., pp. 32-33.
[5] Penned by Labor Arbiter Facundo L. Leda; Records, pp. 243-255.
[6] See Note 3.
[7] See Note 4.
[8] Penned by Associate Justice Ramon Mabutas, Jr., and concurred in by Associate Justices Demetrio G. Demetria and Jose L. Sabio, Jr.; Rollo, pp. 26-55.
[9] See Note 1, citing Gabisay and Gomez v. NLRC, G.R. No. 108311, 18 May 1999, 307 SCRA 141; Audion Electric Co.; Inc. v. NLRC, G.R. No. 106648, 17 June 1999, 308 SCRA 340.
[10] Arboleda v. NLRC, G.R. No. 119509,
[11] Azcor Manufacturing, Inc. v. NLRC, G.R. No. 117963, 11 February 1999, 303 SCRA 26; CMP Federal Security Agency, Inc. v. NLRC, G.R. No. 125298, 11 February 1999, 303 SCRA 99; Carlos A. Gothong Lines, Inc. v. NLRC, G.R. No. 96685, 15 February 1999, 303 SCRA 164; Maranaw Hotels and Resort Corporation v. NLRC, G.R. No. 123880, 23 February 1999, 303 SCRA 540.
[12] Art.
282. Termination by Employer. - An employer may terminate an employment
for any of the following causes: (a) Serious misconduct or willful disobedience
by the employee of the lawful orders of his employer or representative in
connection with his work; (b) Gross and habitual neglect by the employee of his
duties;
(c) Fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized representative; (d)
Commission of a crime or offense by the employee against the person of his
employer or any immediate member of his family or his duly authorized
representative; and, (e) Other causes analogous to the foregoing.
[13] See Note 10.
[14] Art. 283. Closure of Establishment and Reduction of Personnel. - The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the worker and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered as one (1) whole year.
[15] Art. 284. Disease as Ground for Termination. - An employer may terminate the services of an employee who has been found to be suffering from any disease and whose continued employment is prohibited by law or is prejudicial to his health as well as to the health of his co-employees: Provided, That he is paid separation pay equivalent to at least one (1) month salary or to one-half (1/2) month salary for every year of service, whichever is greater, a fraction of at least six (6) months being considered as one (1) whole year.
[16] See Note 10; Kams International, Inc. v. NLRC, G.R. No. 128806, 28 September 1999, 315 SCRA 316; C & A Construction Co., Inc. v. NLRC, G.R. No. 122279, 22 November 1999, 318 SCRA 784.
[17] Underscoring supplied for emphasis.
[18] See Note 12.
[19] Citibank v. Gatchalian,
G.R. No. 111222,
[20] Cesario Alvero Azucena, Jr., The Labor Code With Comments and Cases, Vol. II, Fourth Ed., 1999, Reprinted 2001, p. 595, citing Department of Labor Manual, Sec. 4343.01[27]
[21] Surigao del Norte Electric Cooperative v. NLRC, G.R. No. 125212,
[22] Ibid.
[23] De
Guzman v. NLRC, G.R. No. 130617,
[24] Lambo v. NLRC, G.R. No. 111042,
[25] Pure Foods Corporation v. NLRC,
G.R. No. 78591,
[26] Pepsi-Cola
Products Philippines, Inc. v. NLRC, G.R. No. 121324,
[27] Primero v. Intermediate Appellate
Court, G.R. No. 72644,
[28] Cocoland Development Corp. v. NLRC, G.R.
No. 98458,
[29] Dee Hua Liong Electrical Corp. v. Reyes, G.R. No.
72182,
[30] Art. 2208. In the absence of stipulation, attorney’s fees and expenses of litigation, other than judicial costs, cannot be recovered, except: x x x x (2) When the defendant’s act or omission has compelled the plaintiff to litigate with third persons or to incur expenses to protect his interest x x x x (New Civil Code).