EASTERN TELECOMMUNICATIONS G.R. No. 169299
PHILS., INC.,
Petitioner,
Present:
Panganiban, C.J. (Chairperson),
- versus - Ynares-Santiago,
Austria-Martinez,
Callejo, Sr., and
Chico-Nazario, JJ.
MARIA
CHARINA DIAMSE,
Respondent.
Promulgated:
June 16, 2006
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YNARES-SANTIAGO,
J.:
This petition for review on
certiorari assails the May 31, 2005 Decision[1] of
the Court of Appeals in CA-G.R. SP No. 87125, which reversed and set aside the July
24, 2003 Decision[2] of the
National Labor Relations Commission (NLRC) in NLRC NCR CA No. 033100-02, and
the August 10, 2005 Resolution[3]
denying petitioner’s motion for reconsideration.
The facts as culled from the records
are as follows:
On
Thereafter, the amount of P150,000.00
was credited to the Automated Teller Machine (ATM) payroll account of Diamse
who made several payments for the renewal of the company’s business permits. The records show that a total of P97,151.00
was paid and that the last payment was made on
On
Subsequently, the Finance Department
proceeded to make deductions and as of December 2001, a total of P23,000.00 was
deducted from Diamse’s monthly salary.
For her part, Diamse submitted a request
for reimbursement[7] on
It appears however that the Internal
Audit Department (IAD) was not aware of the steps taken by the Finance
Department because on
On January 3, 2002, the IAD conducted
another spot audit on Diamse’s ATM payroll account from which it required
Diamse to withdraw P74,462.82 which is the difference between the amount
credited to Diamse’s account (i.e.,
P97,151.00) and the amounts previously deducted from her monthly payroll as of
December 2001 (i.e., P23,000.00). Like before, Diamse remitted the said amount
to ETPI and was issued an official receipt.[8]
The next day or on
Finding her explanation
unsatisfactory, ETPI dismissed Diamse from employment effective
On
WHEREFORE,
in view of the foregoing, the instant petition is hereby GRANTED. The Decision
of the National Labor Relations Commission dated
The
decision of the Labor Arbiter dated August 30, 2002 is REINSTATED and AFFIRMED
subject to the MODIFICATION that petitioner be awarded separation pay
equivalent to one month salary for every year of service in lieu of reinstatement
and with full backwages based on her last stated salary, to be computed from
the date of dismissal from the service up to the date of finality of this
decision.
SO
ORDERED.[11]
Hence, this petition where ETPI
assigns the following errors:
A.
THE COURT OF APPEALS
ERRED IN FAILING TO EXPLAIN THE REASONS FOR ITS DECISION THAT RESPONDENT DIAMSE
ACTED IN GOOD FAITH AND THAT HER INFRACTION DOES NOT WARRANT HER DISMISSAL.
B.
THE COURT OF APPEALS
ERRED IN RULING THAT DIAMSE WAS ILLEGALLY DISMISSED. THE FACTS OF THE CASE AND
RELEVANT JURISPRUDENCE JUSTIFY HER DISMISSAL BASED ON LOSS OF TRUST AND
CONFIDENCE.[12]
As a general rule, a petition for
review on certiorari under Rule 45 of
the Rules of Court is limited to questions of law. However, this rule admits of exceptions,[13] such
as in this case where the findings of facts of the Labor Arbiter and the Court
of Appeals vary from the NLRC’s findings. After a review of the entire records of the
case, we uphold the findings of the Court of Appeals that Diamse was illegally
dismissed.
Time honored is the rule that in
dismissal cases, the burden of proof is on the employer to show that the
employee was dismissed for a valid and just cause. In the case at bar, ETPI dismissed Diamse
based on loss of trust and confidence. However,
to be a valid ground for dismissal, the loss of trust and confidence must be
based on a willful breach and founded on clearly established facts.[14] 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. Loss of trust and
confidence must rest on substantial grounds and not on the employer’s
arbitrariness, whims, caprices or suspicion, otherwise, the employee would
eternally remain at the mercy of the employer.[15] The employer, thus, carries the burden of
clearly and convincingly establishing the facts upon which loss of confidence
in the employee may be made to rest.[16]
In the instant case, it is not
disputed that Diamse occupied a position of trust and confidence because she
was responsible for ETPI’s inventory and supplies, including the renewal of its
business permits, which necessarily meant that the property and money of ETPI
was entrusted to her for proper care and disposition. It is, likewise, not disputed that Diamse made
a cash advance in the amount of P150,000.00 on
ETPI principally asserts that the delay
in the liquidation of the cash advance is sufficient basis for it to lose trust
and confidence in Diamse. It claims that
despite several reminders, Diamse failed to liquidate the cash advance within the
prescribed period. ETPI posits that the
delay in the liquidation of the cash advance was deliberate and malicious in
order to conceal the misappropriation in the meantime.
ETPI’s assertion lacks merit.
The mere delay in the liquidation of
the cash advance cannot sustain a finding of loss of trust and confidence. ETPI merely suspected, without supporting
proof, that Diamse misappropriated the funds. This certainly does not meet the
requirement that loss of trust and confidence must be based on a willful breach
and founded on clearly established facts. By itself, the delay in the liquidation of the
cash advance does not clearly and convincingly establish that it was sought “intentionally,
knowingly and purposely, without justifiable excuse” in order to provide a
reasonable basis with which to conclude that the balance of the cash advance
was misappropriated.
On the contrary, there are undisputed
allegations by Diamse where she attributed the delay in the liquidation of the
cash advance to her promotion as Head of Building Services. Her department was also relocated to another floor
of ETPI’s building sometime in March 2001 so that the documents were in disarray.[17] Her duties were expanded as she was designated
to head the Stores and Inventory Section which required her to again physically
transfer from her office in the eighth floor to the upper basement of the
building.[18]
Undoubtedly, it cannot be presumed
that Diamse misappropriated the funds because to do so would do violence to her
right to security of tenure and the well-settled rule that the burden of proof
is on the employer to establish the ground for dismissal. Suspicion has never been a valid ground for
dismissal and the employee’s fate cannot, in justice, be hinged upon
conjectures and surmises.[19]
The evidence on record shows that
Diamse was able to liquidate the cash advance and that the ensuing delay in its
liquidation was attributable to ETPI.
Moreover, Diamse submitted her
liquidation report which was refused by the Finance Department for being
late. Instead, she was advised that the entire
cash advance will be automatically deducted from her monthly salary. Diamse also filed a request for reimbursement
on
We find Diamse’s version of the events
credible for the following reasons. First,
the authenticity of the liquidation report has not been successfully rebutted
by ETPI when it filed its reply[20]
and rejoinder[21] before
the Labor Arbiter. The first time that
ETPI addressed the issue of the liquidation report was on appeal with the NLRC
when it alleged in its memorandum of appeal[22]
dated September 30, 2002 that the subject liquidation report was not
substantial evidence to prove the illegal dismissal of Diamse and that its authenticity
and reliability was not proven.[23] However,
it failed to provide any specific basis for its generalized claims. Verily, upon
presentation of the liquidation report[24]
in Diamse’s position paper[25]
before the Labor Arbiter, ETPI should have immediately contested its authenticity
if it really had grounds to do so by presenting rebuttal evidence. Furthermore, in its comment[26] dated
Second, as correctly found by the
Labor Arbiter, the refusal of Alferez to accept the liquidation report as well
as her subsequent advice to Diamse that the entire amount of the cash advance
would be automatically deducted from her monthly salary were never denied by
Alferez. In fact, ETPI, in its Internal
Audit Report[28] dated
Last, the authenticity of the request
for reimbursement has not been contested by ETPI. On the contrary, it was silent as to why
Diamse would submit this request for reimbursement instead of the liquidation
report it allegedly badgered her to submit. This lends credence to the explanation of
Diamse that the request for reimbursement was necessary to remedy the
forthcoming monthly salary deductions. It
is obvious that ETPI intentionally concealed the fact that it required Diamse
to submit a request for reimbursement through its Finance Department.
In view of the foregoing, it would be
unfair and unjust to blame Diamse for the delay in the liquidation of the cash
advance and use the same to justify her dismissal based on loss of trust and
confidence.
ETPI next contends that the
P86,000.00 found in the ATM payroll account of Diamse during the spot audit was
part of the P97,150.45 which was allegedly erroneously credited to her ATM payroll
account on
The contention lacks merit.
It appears that the sole basis for the
above suspicion by ETPI is the aforementioned Internal Audit Report which
states in part:
On
Again, ETPI is relying on mere
suspicion. It failed to present any
documentary evidence to support its claim such as the bank documents showing
the date when the P97,150.45 was credited to the ATM payroll account of Diamse.
Even assuming for the sake of
argument that the P97,150.45 was credited to Diamse’s ATM payroll account on
December 27, 2001 and that the P86,000.00 balance in her ATM account was part
of this previously credited amount so that she would have been unable to
account for the balance of the cash advance during the January 2, 2002 spot
audit, still there would be no basis to claim that she was liable for willful
breach of trust or misappropriation of company funds. Note that as early as August 2001, the Finance
Department already advised Diamse that the entire P150,000.00 cash advance
would be automatically deducted from her monthly salary starting September
2001. Thus, from the time the Finance
Department advised Diamse of such deduction, she was no longer under obligation
to remit the balance of the cash advance to ETPI since it would now be deducted
from her monthly salary. In fine, there
is no more reason for IAD to conduct a spot audit on
Finally, ETPI’s reliance on our
ruling in San Miguel Corporation v.
National Labor Relations Commission[30] to justify the dismissal of Diamse
based on loss of trust and confidence is misplaced. In that case, the employee, a salesman, failed
to return the cash bond put up by his employer on his behalf due to a criminal
case filed against the employee who figured in a vehicular accident while
driving the employer’s delivery truck. After
the dismissal of the criminal case, the employee withdrew the cash bond from
the trial court and merged it with his family’s funds. When the employer discovered that the cash
bond remained unaccounted for, it required the employee to immediately return
the same. Although the employee promptly returned the amount covering the cash bond,
he was still dismissed from employment for dishonesty and willful breach of
trust.
In the ensuing labor case, the
employee argued that the cash bond was a loan to him by his employer. He admitted that he retained and merged the
cash bond with his family’s funds but claimed that he did not touch the money. He further argued that he was not guilty of any
wrongdoing since he was able to immediately return the amount of the cash bond
upon the employer’s demand.
We ruled therein that the cash bond
was not a loan to the employee and that he had an affirmative duty to return it
to the employer upon the termination of the criminal case. The fact that he withdrew the cash bond after
the dismissal of the criminal case, and retained and merged it with his family’s
funds for one year and three months without justifiable reason constituted a willful
breach of the trust reposed in him.
In the instant case, the cash advance
was purposely given to Diamse for the renewal of the company’s business permits
unlike in the SMC case where the
employee was not authorized to use the cash bond for the benefit of the
employer. Second, no evidence was
presented to show that there was reasonable ground to believe that Diamse
misappropriated the cash advance except for the delay in the liquidation
thereof. On the contrary, in the SMC case, the employee deliberately
withdrew and retained the cash bond which did not belong to him. Third, after the first follow-up by ETPI on
the liquidation of the cash advance on
An employee who is illegally dismissed is entitled to
reinstatement without loss of seniority rights and other privileges, and to
full backwages, inclusive of allowances, and other benefits or their monetary
equivalent, computed from the time the employee’s compensation was withheld up
to the time of the employee’s actual reinstatement.[31] However, the filing of this labor case and the
attendant litigation has caused strained relations between Diamse and ETPI. The latter should, thus, not be compelled to
reinstate Diamse who is tasked to handle delicate matters concerning the
property and money of ETPI. Besides, Diamse
has impliedly agreed to the payment of separation pay in lieu of reinstatement
when she did not take issue with the ruling of the Court of Appeals that this
case has caused strained relations between the parties. In fact, she moved for the execution of the
Decision of the Court of Appeals dated May 31, 2005.
In view of the foregoing, Diamse is entitled to the payment
of full backwages, inclusive of allowances, and other benefits or their
monetary equivalent,[32] computed
from the date of her dismissal on February 5, 2002 up to the finality of this
decision, and separation pay in lieu of reinstatement equivalent to one month
salary for every year of service,[33] computed
from the time of her engagement by ETPI on February 16, 1998 up to the finality
of the decision.
The records of this case are, however, incomplete for
purposes of computing the exact monetary award due to Diamse. Thus, it is necessary to remand this case to
the Labor Arbiter for the sole purpose of computing the proper monetary award due
to Diamse.
WHEREFORE, the
petition is DENIED. The May 31, 2005 Decision and the August 10,
2005 Resolution of the Court Appeals in CA-G.R. SP No. 87125 are AFFIRMED with the MODIFICATION that
this case be REMANDED to the Labor
Arbiter for the sole purpose of computing Diamse’s full backwages, inclusive of
allowances, and other benefits or their monetary equivalent, computed from the
date of her dismissal on February 5, 2002 up to the finality of the decision,
and separation pay in lieu of reinstatement equivalent to one month salary for
every year of service, computed from the time of her engagement on February 16,
1998 up to the finality of this decision, less the wages, inclusive of
allowances, and other benefits that she received during the time that she was
reinstated in ETPI’s Tuguegarao Office pending the appeal of this case to the
NLRC.
Costs against petitioner.
SO ORDERED.
CONSUELO YNARES-SANTIAGO
Associate Justice
WE
CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
MA. ALICIA AUSTRIA-MARTINEZ
ROMEO J. CALLEJO, SR.
Associate Justice Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII
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.
ARTEMIO
V. PANGANIBAN
Chief Justice
[1] Rollo, pp. 38-46. Penned by Associate Justice Eugenio S.
Labitoria and concurred in by Associate Justices Eliezer R. Delos Santos and
Arturo D. Brion.
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13] Grand Boulevard Hotel v. Genuine Labor
Organization of Workers in Hotel, Restaurant and Allied Industries, G.R.
No. 153664, July 18, 2003, 406 SCRA 688, 707.
[14] Surigao del Norte Electric Cooperative v.
National Labor Relations Commission, 368 Phil. 537, 553 (1999).
[15]
[16] Pilipinas Bank
v. National Labor Relations Commission, G.R. No. 101372, November 13, 1992,
215 SCRA 750, 757.
[17]
Records, p. 128.
[18]
[19] Pilipinas Bank v. National Labor Relations
Commission, supra note 17.
[20]
Records, pp. 153-156.
[21]
[22]
[23]
[24]
[25]
[26]
[27]
[28]
[29]
[30]
211 Phil. 145 (1983).
[31]
LABOR CODE, Article 279, as amended by Republic Act No. 6715.
[32] Bustamante v. National Labor Relations
Commission, 332 Phil. 833, 842-843 (1996).
[33] Gaco v. National Labor Relations Commission,
G.R. No. 104690, February 23, 1994, 230 SCRA 260, 268.