FIRST
DIVISION
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DR. DANILO T. TING and MRS. ELENA TING,
doing business under the name and style of GST FISHING ENTERPRISES, Petitioners, - versus
- HON. COURT OF APPEALS and PILARDO ISMAEL, Respondents. |
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G.R. No. 146174 Present: PANGANIBAN, C.J. Chairperson, YNARES-SANTIAGO, AUSTRIA-MARTINEZ, CALLEJO,
SR., and CHICO-NAZARIO,
JJ. Promulgated: |
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This is a Petition for Review on Certiorari of the Decision[1] of
the Court of Appeals dated 5 June 2000 and Resolution[2]
dated 17 November 2000 in CA-G.R. SP No. 56062, which reversed and set aside
the Decision[3] of the
National Labor Relations Commission (NLRC) dated 20 May 1999, and affirmed in toto the Decision[4] of
the Executive Labor Arbiter dated 15 February 1999. The Executive Labor Arbiter declared illegal
the dismissal of private respondent Pilardo Ismael, and ordered petitioner GST
Fishing Enterprises and/or Spouses Dr. Danilo Ting and Elena Ting, as owners
thereof, to pay private respondent, inter
alia, separation pay, backwages,
unpaid wages and commissions.
As
culled from the evidence on record, petitioner-spouses Danilo and Elena Ting
are engaged in the operation of fishing boats plying the Zamboanga, Jolo, and
Basilan seas under the business name and style of GST Fishing Enterprises.[5] In March 1974, private respondent Pilardo
Ismael was employed by petitioner-spouses as laborer. As such, private respondent was initially
assigned to work in fishing boat, “F/B Liza I,” one of the five fishing boats
owned and operated by petitioner-spouses.[6] In May 1989, private respondent was
transferred to “F/B Queen Elena,” and designated as the maestro thereof. Finally, in
January 1992, private respondent was appointed Chiefmate of “F/B Liza III.”
On
In his Position Paper,[8]
dated 5 August 1998, private respondent alleged that at the time of his
termination, he had worked for more than 24 years as a regular employee of
petitioner-spouses; and that on 13 June 1998, he was verbally dismissed by
petitioner-spouses from his employment, in disregard of the security of tenure
accorded by law to regular employees. In
a subsequent Manifestation,[9]
dated 9 August 1998, and consequently noted by the Labor Arbiter in the Order[10]
of 18 August 1998, private respondent manifested that the dates, “June 1 to 13,
1998” as specified in his Complaint was erroneously included therein, and the
same should read, “13th month pay differentials for 1997, 1996, and
1995.”
Refuting the charge of illegal
dismissal, petitioner-spouses, in their Position Paper[11]
contended that on
The Ruling of the Labor Arbiter
Following an exchange of pleadings
between the parties, the Executive Labor Arbiter rendered a Decision, dated
WHEREFORE, in view of the foregoing considerations, judgment is hereby rendered in the above-entitled case:
1. Declaring the dismissal of Pilardo Ismael to be illegal, and ordering GST Fishing Enterprises and/or spouses Dr. Danilo Ting and Elena Ting, as owners thereof, to pay said Pilardo Ismael separation and backwages, as well as unpaid wages and commissions, as follows[:]
Separation Pay --------------------------------- P 88,800.00
Backwages --------------------------------- 32,066.66
Unpaid Wages --------------------------------- 1,480.00
Unpaid
Commissions
----------------------------- 751.50
TOTAL ----------------------------- P123,098.16
2. Dismissing complainant’s claims for 13th month pay, and wage differentials, for lack of merit. [19]
The Executive Labor Arbiter held that
the Memorandum of
Obviously, the complainant was dismissed because he left his lightboad (sic) (F/B “Liza II”) and endorsed it to somebody whom the respondents allege was not qualified and authorized to act as “patron” thereof, and went to Zamboanga City, during an ongoing fishing expedition. There is no question about this. But the evidence on records (sic) shows that there was justification for what the complainant did; as already mentioned, he was then suffering from intensifying back and chest pains caused by an upper respiratory infection (Affidavit of Pilardo Ismael, Annex B). Surely, sickness justified an employee’s being absent, or leaving his work.
Consequently,
there was not (sic) cause for complainant’s dismissal on the basis of his
leaving work on
Anent [the] two (2) other previous incidents on 13 May 1997 and 30 May 1998 when the complainant also left the fishing boats to which he was assigned, despite instructions of the respondents to the contrary, the complainant had already been punished for these by suspensions. Apparently, his being suspended was proper because there was no explanation for what he did.
But
with respect to the latest incident of
Consequently, the Executive Labor
Arbiter awarded to private respondent separation pay in lieu of reinstatement.[23] Moreover, petitioner-spouses were directed to
pay private respondent unpaid commissions.[24] However, private respondent’s claims for 13th
month pay and wage differentials were not granted for lack of basis therefore.[25]
The Ruling of the NLRC
Upon appeal, the NLRC rendered a
Decision promulgated on P1,000.00, to be imposed upon petitioner-spouses and/or GST Fishing
Enterprises for violating due process of law.
The decretal portion thereof reads:
WHEREFORE, subject to the foregoing discussions, the assailed decision is Modified. Respondents are ordered to pay complainant the sums of P1,000.00, as indemnity and P2,231.50 for the unpaid wages and commissions. [26]
In
stark contrast to the conclusion of the Executive Labor Arbiter, the NLRC
upheld petitioner-spouses’ exercise of management prerogative. It held private respondent’s repeated
infractions as just cause for his termination from employment, but ordered
petitioner-spouses to pay indemnity on account of lack of observance of due
process. The NLRC rationalized, thus:
It
is an undisputed fact that on
Although complainant’s acts (sic) of going back to Zamboanga City due to upper respiratory infections (sic) do not warrant the assailed termination of employment, We cannot however go against the principle of management prerogative after taking into account the attendant facts and circumstances.
Complainant has a history of
infractions for which corresponding penalties were meted out. Thus on account of the reported habit of
complainant in leaving the workplace without the consent, knowledge and authority
of respondents, the line was drawn. On
As clearly pointed out in evidence,
complainant was verbally terminated from employment on P1,000.00 to be imposed upon the respondents
for violating the (sic) due process of law in accordance with the Wenphil
ruling of the Supreme Court.[27]
Private respondent’s Motion for
Reconsideration[28] thereon was denied by the NLRC in the
Resolution[29] dated
The Ruling of the Court of Appeals
The Court of Appeals found that
private respondent’s dismissal on
WHEREFORE, foregoing premises considered, the Petition is herby GIVEN DUE COURSE, and the assailed judgment of the Public Respondent National Labor Relations Commission (Fifth Division, Cagayan de Oro City) REVERSED and SET ASIDE, and the decision of the Executive Labor Arbiter hereby AFFIRMED IN TOTO. [33]
The Court of Appeals rendered a
Resolution dated
Undaunted, petitioner-spouses come to
us through the instant Petition for Certiorari,
relying on management prerogative as a justification for private respondent’s
dismissal.
The Issue
The instant case brings to the fore
the question of the legitimacy of an employee’s dismissal. We are, thus, tasked to settle the sole issue
of whether private respondent was illegally dismissed.
The Court’s Ruling
To effectuate a valid dismissal from
employment by the employer, the Labor Code has set twin requirements, namely:
(1) the dismissal must be for any of the causes provided in Article 282[34]
of the Labor Code; and (2) the employee must be given an opportunity to be
heard and defend himself.[35] The first requisite is referred to as the
substantive aspect, while the second is deemed as the procedural aspect.
Deeply entrenched in
our jurisprudence is the doctrine that an employer can terminate the services
of an employee only for valid and just causes which must be supported by clear
and convincing evidence.[36] The employer has the burden of proving that
the dismissal was indeed for a valid and just cause.[37] Further, the termination must be effected in
compliance with due process of law. The
procedural aspect requires that the employee be given two written notices
before he is terminated consisting of a notice which apprises the employee of
the particular acts/omissions for which the dismissal is sought, and the
subsequent notice which informs the employee of the employer’s decision to
dismiss him.[38]
We shall now come to a determination
of whether the requisites of the law were validly met. On one hand, we have before us
petitioner-spouses as employers who anchor their position on management
prerogative; and on the other, private respondent, who rely on the security of
tenure afforded by the law to the working man.
A. On the Legality of the Act of Dismissal
Petitioner-spouses
maintain that the existence of a just cause justified their act of terminating
private respondent. It is their
contention that private respondent committed a serious offense by leaving the
fishing boat in the open sea in the hands of an individual, Francisco Dorens,
who was without a license, and therefore not qualified.[39] Petitioner-spouses raise the argument that
private respondent’s act was fraught with dire consequences, i.e., that the lives of the crew and the
safety of the fishing boat were put at great risk and peril; that in the event
of a storm or collision, the substitute cannot be expected to steer the fishing
boat to safety; and that had the boat capsized, causing oil and gasoline to
spill into the ocean, petitioner-spouses will be penalized for the resultant
pollution, and will undertake great expense for its clean-up.[40]
At
the outset, it must be stated that this Court is not a trier of facts, and this
applies with greater force in labor cases.[41] Thus, we do not, in this instant concern
ourselves with the question of whether private respondent is a regular
employee, the same having been unanimously settled in the proceedings a quo.
It is beyond question that private respondent as a regular employee
enjoys the protection of the Labor Code on security of tenure. As earlier stated, his termination must
comply foremost with the substantive aspect prescribed by the law. Article 279[42]
of the Labor Code makes it clear that, in cases of regular employment, the
employer shall not terminate the services of an employee except for a just
cause or when authorized by law. Hence,
private respondent’s dismissal must be based on just or authorized cause
enumerated in the Labor Code.
We have said that, in an illegal
dismissal case, the onus probandi rests on the employer to prove that
its dismissal of an employee is for a valid cause.[43] As noted earlier, petitioner-spouses issued
Memorandum dated
We
have received reports from a very reliable person that you have been abandoning
your post on several occasions as “patron” of Lightboat Liza-II on fishing
expeditions on high seas and boarding a “Carrier” to go on land.
Moreover,
you have designated your responsibilities to a person not qualified nor
authorized to perform such tasks as “patron” and have not informed this office
of your numerous unauthorized leaves, to the detriment of the company and
endangering the lives of your fellow crew members.
In
this connection, you are hereby directed to explain in writing within 48 hours
why you should not be meted out the penalty of termination from work for “gross
and serious negligence of duty, prejudicing the interest of the company and placing
the lives of your fellow crew members at the hand of an unqualified and
unauthorized person in the high seas.”[44]
In the case at bar,
petitioner-spouses failed to discharge the burden of proving that the private
respondent was dismissed for a just cause as mandated by law. We do not find herein a case of such gross
and serious negligence of duty that merits the supreme penalty of termination
from employment.
First. Article 282 of the Labor Code requires that
to constitute neglect of duties as a ground for the termination of an employee,
the same must not only be gross but also habitual. Department of Labor Manual, Sec. 4343.01(2)
provides:
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 acts of negligence do not constitute a just cause for the dismissal of the employee.
Gross negligence means an absence of that diligence that an ordinarily prudent man would use in his own affairs.
To justify the dismissal of an employee for neglect of duties, however, it does not seem necessary that the employer show that he has incurred actual loss, damage, or prejudice by reason of the employee’s conduct. It is sufficient that the gross and habitual neglect by the employee of his duties tends to prejudice the employer’s interest since it would be unreasonable to require the employer to wait until he is materially injured before removing the cause of the impending evil.
As borne by the records, while “F/B
Liza V” was on a fishing expedition in the open seas, off a site called Duhay
Bulod, private respondent boarded a fish carrier to take him to
To our mind, private respondent’s act
of delegating to Francisco Dorens his duty as patron, and then boarding a
carrier to proceed to
Private respondent’s act is similarly
mitigated by the fact that there was no material prejudice shown as a result of
the act of designating “F/B Liza V” to an unlicensed individual. While we are not unmindful that no material
injury need be shown to sustain a finding of gross negligence, private
respondent was without bad faith and had reasonable basis for designating the fishing
boat to Francisco Dorens. Private
respondent had believed the latter to be the responsible substitute in cases of
emergency due to the unavailability of the captain.[46] Harboring from an intense physical condition
that demanded medical attention, it can be said that on
We find it equally significant that
the Executive Labor Arbiter, the NLRC, and the appellate court unanimously
found private respondent’s act of disembarking from “F/B Liza V” in order to
attend to an emergency medical matter to be a valid justification therefor. Even the NLRC, which reversed the Executive
Labor Arbiter’s finding of illegal dismissal, was unequivocal in declaring that
private respondent’s act, by itself, of
going to Zamboanga City due to upper respiratory infection does not warrant
termination. The reversal by the NLRC
was on the ground of private respondent’s past infractions.
Second. Petitioner-spouses was unable to show
that the incident of
We are not persuaded. Private respondent had already been adequately
penalized for his two prior acts of disembarkation. He was meted out appropriate punishments for the
commission of the unwarranted disembarkations of
Third. We take occasion to stress that there
must be a reasonable proportionality between the offense and the gravity of the
penalty.[47] At the time of the dismissal, private
respondent had worked for the petitioner-spouses and/or GST Fishing Enterprises
for 24 years, beginning on March 1974 as laborer, and rising from the ranks to
become patron. Verily, not every case of
insubordination or willful disobedience by an employee of a lawful
work-connected order of the employer is reasonably penalized with dismissal.[48] Dismissal has always been regarded as
the ultimate penalty.[49] Security of tenure is one of the highest
rights of workers aptly protected and guaranteed by the Constitution,
specifically embodied in Section 3, Article XIII[50]
thereof.
B. On the Legality in the Manner of Dismissal
The
second facet in the case of valid termination from employment is due
process. The cardinal rule is that an employee
sought to be dismissed must be served two written notices before termination of
his employment. The first notice is to apprise the employee of the particular
acts or omissions by reason of which his dismissal has been decided upon; and
the second notice is to inform the employee of the employer’s decision to
dismiss him.[51]
Juxtaposing these legal standards
against the factual backdrop of the case at bar, we do not find that the
procedural rudiments of the law have been complied with.
First.
Petitioner-spouses admit the act of verbal termination of private
respondent by petitioner Elena Ting on
Hence, there is no gainsaying that the
Memorandum of
Second. We do not think that management
prerogative can ever be used as a cloak to render nugatory the constitutional
mandate of security of tenure. Management
prerogative cannot be so exercised with arbitrariness and in defiance of the
due process of the law.
WHEREFORE, the
Petition is DENIED. The assailed Decision dated
Costs against petitioners.
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MINITA V. CHICO-NAZARIOAssociate Justice |
Chief Justice
Chairperson
Associate
Justice
Associate Justice
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ROMEO J. CALLEJO, SR. Associate Justice |
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Pursuant to Article VIII,
Section 13 of the Constitution, it is hereby certified that the conclusions in
the above Decision were reached in consultation before the case was assigned to
the writer of the opinion of the Court’s Division.
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ARTEMIO V.
PANGANIBAN Chief Justice |
[1] Penned by Associate Justice Jose L.
Sabio, Jr., with Associate Justices Ramon Mabutas, Jr. and Demetrio G.
Demetria, concurring; Rollo, pp.
28-36.
[2] Penned
by Associate Justice Jose L. Sabio, Jr. with Associate Justices Ramon Mabutas,
Jr. and Eliezer R. De los Santos, concurring; Id. at 38-41.
[3] Penned by Commissioner Leon G. Gonzaga, Jr. with Presiding Commissioner Salic B. Dumarpa and Commissioner Oscar N. Abella, concurring; Records, Vol. II, pp. 29-34.
[4] Penned by Executive Labor Arbiter Rhett Julius J. Plagata; Records, Vol. I, pp. 194-203.
[5] Records, Vol. I, p. 31.
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14] Inadvertently referred to as “Liza II” in some parts of the record.
[15] Records, Vol. I, p. 44.
[16]
[17]
[18]
[19]
[20]
[21] Also referred to as F/B “Liza V” in
Petitioners’ Memorandum; See Rollo,
p. 5,
[22] Records, Vol. I, pp. 199-200.
[23]
[24]
[25]
[26] Records, Vol. II, pp. 29-34.
[27]
[28]
[29]
[30]
[31] Rollo,
p. 34.
[32]
[33]
[34] 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 representatives; and
e.
Other causes
analogous to the foregoing.
[35] New Ever Marketing, Incorporated v. Court of Appeals, G.R. No. 140555, 14
July 2005, 463 SCRA 284, 295, citing Colegio
de San Juan de Letran-Calamba v. Villas, 447 Phil. 692, 698 (2003).
[36] Better
Buildings Incorporated v. National Labor Relations Commission, 347 Phil.
521, 528-529 (1997).
[37]
[38] Colegio
de San Juan de Letran-Calamba v. Belen P. Villas, supra note 35.
[39] Rollo,
pp. 12-13.
[40]
[41]
[42] ARTICLE 279. SECURITY OF TENURE. – In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (As amended by Sec. 34 Republic Act No. 6715).
[43] R.P.
Dinglasan Construction, Incorporated v.
Atienza, G.R. No. 156104,
[44] Records, Vol. I, p. 44.
[45]
[46]
[47] See
Bascon v. Court of Appeals, G.R. No. 144899,
[48] St.
Michael’s Institute v. Santos, 422 Phil. 723, 734 (2001).
[49] Procter
and Gamble
[50] Section 3, Article XIII of the 1987 Constitution reads:
It
shall guarantee the rights of all workers to self-organization, collective
bargaining and negotiations, and peaceful concerted activities, including the
right to strike in accordance with law. They shall be entitled to security of
tenure, humane conditions of work, and a living wage. They shall also
participate in policy and decision-making processes affecting their rights and
benefits as may be provided by law.
The State shall promote
the principle of shared responsibility between workers and employers and the
preferential use of voluntary modes in settling disputes, including
conciliation, and shall enforce their mutual compliance therewith to foster
industrial peace.
The State shall regulate
the relations between workers and employers, recognizing the right of labor to
its just share in the fruits of production and the right of enterprises to
reasonable returns to investments, and to expansion and growth.
[51] ACD
Investigation Security Agency, Incorporated
v. Daquera, G.R. No. 147473,
[52] Rollo,
p. 7.
[53]