FIRST
DIVISION
LIMITED,
Petitioner, Present:
PANGANIBAN, C.J., Chairperson,
- versus
- YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO, SR., and
PHILIP LUIS F. MARIN and
CHICO-NAZARIO,
JJ.
THE HON. COURT OF
APPEALS (Former First Promulgated:
Division),
Respondents.
x - -
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- - - - - - - - x
D E C I S I O N
CALLEJO, SR., J.:
This
is a Petition for Review on Certiorari
of the Decision[1] of the
Court of Appeals (CA) in CA-G.R. SP No. 50884, which granted the petition filed
by respondent Philip Luis F. Marin and reversed the ruling of the Labor Arbiter
and affirmed by the National Labor Relations Commission (NLRC) dismissing his
complaint for illegal dismissal; likewise assailed is the Resolution of the CA
denying the motion for reconsideration thereof.
Marin
used to work for Saudia Airlines as a ticketing agent. When he applied for
employment as a Reservation Officer in Cathay Pacific Airways, Ltd. (
In a letter[2] dated
P5,334.00, including
holidays and rest days, with a promise of a salary review upon satisfactory
completion of the probationary period. The letter also stated that
On
Mr. Philip Luis Marin
Cathay Pacific Airways, Ltd.
Dear Philip,
It is with regret that we accept
your resignation as Reservations Officer with effect
We wish you success in your endeavors.
Yours sincerely,
(Sgd.)
PETER FOSTER
Manager,
x x x x
Mr. Philip Luis Marin
Cathay Pacific Airways, Ltd.
Dear Philip,
After a thorough review of your
performance during the past six months, we found that it is
unsatisfactory. We are, therefore,
terminating your services with effect from
Yours sincerely,
(Sgd.)
PETER FOSTER
Manager,
On
The Case for Complainant
Marin insisted that he was dismissed from
employment without cause, and that the same was arbitrary and capricious.
Although he was a probationary employee, he was entitled to security of tenure. He claimed that he never received any letters
or documents informing him of
Marin pointed out that he did not
commit any infraction during his probationary employment, and that those alleged
by Gozun and Montallana were mere fabrications and “products of afterthought.”
As shown by his performance ratings during the months from May to July 1992, his
work performance was good.[11] While
he received copies of some documents which were to be used to evaluate his
performance, he was not briefed on what the documents were about. He likewise never
received any memorandum calling his attention to any such infraction. He was
not furnished a copy of the
Marin also denied having resigned
from employment. He claimed that, on
The Case for Respondents
For
their part, respondents claimed that, as reservation officer, Marin was tasked to
book passengers, answer queries related to their itinerary in the telesales
area, and respond to telexes from one port to another.[16] He was prohibited from receiving or making
personal calls in the telesales area[17]
and had to use the lounge during coffee breaks.[18] There was a separate room and telephone which
could be used for personal calls. During
the first three (3)
months, Marin’s performance was below than what was expected of him as
reservation officer, as can be gleaned from the staff assessments conducted by Gozun,
who had direct supervision over Marin, and that of Reservation Supervisor
Montallana. The assessments dated
Montallana
testified that Marin was not furnished with a copy of the pink-colored
documents containing the standards of contract, nor was the latter briefed on
According to Gozun, Marin’s direct
supervisor, the latter was caught conversing noisily with co-employee Aileen
Lao during office hours[20] (Marin and Lao were seated back-to-back in a
cubicle). Consequently, Gozun called their attention and told them that they
were a little bit noisy. They were then instructed to go back to work.[21]
On
However, in August 1992, Marin was
found taking his coffee break at the telesales area which was used exclusively
for receiving and entertaining calls from the public. He was again found chatting noisily with his
co-employees, in fine disrupting their work; and even received personal calls
from the telesales area on
On the other hand, Leviste testified
that, after her vacation, the staff supervisors informed her that Marin had
already been briefed on the standards, rules and regulations of the company.
When she asked Marin if he had already been briefed by the supervisors, Marin
replied in the affirmative, and confirmed that the standards, rules and
regulations were “okay” with him.[23] She
likewise claimed to have briefed Marin on the staff assessment made by Gozun on
On
To
rebut the testimony of Marin, Gozun, Montallana and Leviste testified that
Marin was briefed on
In their comment on Marin’s formal
offer of evidence,
On
Marin appealed the decision to the
NLRC. He alleged that the Labor Arbiter
erred in finding that he was apprised of the requisites and standards related
to the performance of his duties and that he committed infractions of company
rules and regulations while at work. He
averred that respondents merely presented Gozun, Montallana and Leviste, and
their staff assessment, but failed to present any of the employees of
respondent
On
The
NLRC further declared that the option of who to present as witness lies on the
party offering the same, not on the opposing party. It was erroneous for Marin to assume that the
employees with whom he conversed were the best witnesses on the conversation,
as the employees would certainly not testify that they were chatting so noisily
and that others were disturbed by Marin’s behavior. The NLRC noted that, for
her disruptive conversation with Marin, Aileen Lao’s attention was called and
was subjected to company rules and regulations. Marin
was served a written notice of the particular acts for which his dismissal was
sought, and was afforded the opportunity to be heard and defend himself. He was
served a written notice of the decision to dismiss him and the cause thereof. With
the two appraisals made on his over-all performance at the end of the third and
sixth month, including the discussion between him and his supervisors, Marin could
not claim lack of prior hearing. The NLRC further noted that two assessments of
Marin’s performance was conducted, as evidenced by the staff assessment form indicating
that his over-all performance was short of normal, which was clearly explained
by Gozun and Montallana during the hearing of the case.[30]
Marin
filed a motion for reconsideration which the NLRC denied. He forthwith filed a petition for certiorari in the CA for the
nullification of the NLRC ruling, alleging that:
1. IN DECLARING THAT PETITIONER WAS SERVED OR FURNISHED THE REQUIRED WRITTEN NOTICE WHICH APPRISED HIM OF HIS PARTICULAR ACTS OR OMISSIONS FOR WHICH HIS DISMISSAL WAS SOUGHT WHEN ABSOLUTELY NOTHING IN THE RECORDS WOULD SUPPORT SUCH CONCLUSION.
2. IN DECLARING THAT PETITIONER WAS AFFORDED DUE HEARING ON SAID ACTS OR OMISSIONS WHEN COMPLETELY NOTHING IN THE RECORDS WOULD SUPPORT SUCH CONCLUSION.
3. IN DISREGARDING DOCUMENTARY AND TESTIMONIAL EVIDENCE WHICH WOULD PROVE THE ILLEGALITY OF THE ACT AND MANNER OF DISMISSAL OF THE PETITIONER COMMITTED BY CATHAY PACIFIC AIRWAYS, LTD.
4. IN
DECLARING THAT PETITIONER WAS BRIEFED OF THE STANDARDS HE HAD TO MEET TO BE
EXTENDED REGULAR EMPLOYMENT WHEN DOCUMENTARY AND TESTIMONIAL EVIDENCE WOULD
SHOW THAT PETITIONER WAS NOT FORMALLY BRIEFED OF SUCH STANDARDS UPON AND AFTER
THE ENGAGEMENT OF HIS EMPLOYMENT AS PROBATIONARY EMPLOYEE.[31]
On
A
THE COURT OF APPEALS HAS DECIDED IN A WAY NOT IN ACCORD WITH LAW BY REVERSING THE RESOLUTIONS OF THE LABOR ARBITER AND THE NATIONAL LABOR RELATIONS COMMISSION (NLRC) DESPITE THE ABSENCE OF ANY ABUSE OF DISCRETION ON THE PART OF THESE LOWER TRIBUNALS.
B
THE COURT OF APPEALS,
DEPARTING FROM THE USUAL COURSE OF JUDICIAL PROCEEDINGS, SUPPLANTED THE LOWER
TRIBUNALS’ FACTUAL FINDINGS WITH ITS OWN THAT ARE CONTRARY TO EVIDENCE ON
RECORD.[33]
Petitioner
alleges that respondent failed to prove that the NLRC committed grave abuse of
its discretion amounting to excess or lack of jurisdiction in issuing its
resolutions. Moreover, the rule is that
the findings of fact of the Labor Arbiter as affirmed by the NLRC and the
appellate court are considered with finality, the reason being that a
quasi-judicial agency like the NLRC has acquired a unique expertise because its
jurisdiction is confined to specific matters.
It is pointed out that both the Labor
Arbiter and the NLRC did not give credence to respondent’s evidence, and relied
on the evidence of petitioner. Contrary to the CA’s findings, the records show
that respondent was, in fact, briefed by Gozun and Montallana on the standards
to qualify for regularization after the probationary period. Gozun briefed respondent on the rules and
regulations of the Reservations Department of petitioner before his employment,
and was adequately informed of the basis of the termination, conformably with
Rule 28, Department Order No. 9, Series of 1997 of the Department of Labor and
Employment. Respondent was further served
a copy of Foster’s October 2, 1992 letter stating that he would not be given regular
employment on account of his unsatisfactory performance, as mandated by Article
281 of the Labor Code of the Philippines.
As
gleaned from the staff assessment report of Gozun and Montallana, respondent’s
performance during his employment is as follows:
1. “The staff have a good relationship with him, however, it disrupts the operations of the department as he is always chatting noisily with others during office hours.”
2. “Philip is an average worker. But he cannot be depended/relied upon as he always leaves his work area and chats noisily with other staff leaving calls unanswered.”
3. “Conductwise, he needs a big improvement. He is noisy and always talking with staff even if there are lots of calls. He takes his coffee breaks in the work area. He disrupts his colleagues who are at work during his lunch breaks. He is restless and cannot stay in the work area during work hours.”
4. “He still needs maturity in tackling daily
reservations work. He needs improvement
in some CX entries to facilitate his daily transaction in Cupid. More practice in Abacus. He will be recommended for training in HKG,
in Cupid and Abacus courses.”[34]
Petitioner
insists that it did not merely inform respondent of its decision not to extend
regular employment on account of his below normal performance; Leviste and
Foster went out of their way to suggest that
he voluntarily resign so that his chances of employment in other companies would
not be adversely affected. Respondent instead filed the instant complaint
against petitioner.
For
his part, respondent avers that the NLRC committed grave abuse of discretion
amounting to excess of jurisdiction when it
x x x 1) upheld the finding of the
Labor Arbiter that respondent Marin was furnished or served a written notice
which apprised him of the particular acts or omissions for which his (Marin)
dismissal is sought when absolutely
nothing in the records would support such declaration; 2) declared that
respondent Marin was afforded due hearing when completely nothing in the
records would support such a conclusion; 3) declared that respondent Marin was briefed of the standards he had to meet
to be extended regular employment when documentary and testimonial evidence
would show that there was no such formal
briefing.[35]
He
maintains that the findings and conclusion of the Labor Arbiter and NLRC were
based on surmises, speculations and conjectures. He insists that the only documents he
received from petitioner
1. Employment Contract dated
2. CX Reservations Update 1992
3. Minutes of Reservations Meeting
4. Computer Generated Individual Performance Reports
5. Letters (Notices) dated
Even Foster’s
Respondent
posits that the staff assessment reports of Gozun and Montallana were merely
the products of afterthoughts of petitioners made only after the termination of
his employment.
The petition is meritorious.
Article
281 of the Labor Code provides:
ART. 281. Probationary
employment. – Probationary employment shall not exceed six months from the
date the employee started working, unless it is covered by an apprenticeship
agreement stipulating a longer period.
The services of an employee who has been engaged on a probationary basis
may be terminated for a just cause or when he fails to qualify as a regular
employee in accordance with reasonable standards made known by the employer to
the employee at the time of his engagement.
An employee who is allowed to work after a probationary period shall be
considered a regular employee.[37]
It
is settled that a probationary employee enjoys only a temporary employment
status, not a permanent status. In general terms, he is terminable anytime as
long as such termination is made before the expiration of the six-month
probationary period.[38] The employment of a probationary employee may
only be terminated either (1) for a just cause; or (2) when the employee fails
to qualify as a regular employee in accordance with the reasonable standards
made known to him by the employer at the start of his employment. The power of
the employer to terminate an employee on probation is thus subject to the
following conditions: (1) it must be exercised in accordance with the specific
requirements of the contract; (2) the dissatisfaction on the part of the
employer must be real and in good faith, not prejudicial so as to violate the
contract or the law; and (3) there must be no unlawful discrimination in the
dismissal. The burden of proving just or
valid cause for dismissing an employee rests on the employer.[39]
In
Secon Philippines, Ltd. v. NLRC,[40]
this Court held that the probationary employment of an employee may be
terminated when he fails to qualify as regular employee in accordance with
reasonable standards made known to him by his employer at the time of
employment and after due process; in Manlimos
v. National Labor Relations Commission,[41] it
was held that the constitutional protection on the probationary employee ends
upon the expiration of the period provided for in the probationary contract of
employment. Thus, a probationary employee remains secure in his or her employment
during the time that the employment contract remains in effect, but the moment
the probationary employment period expires, the employee can no longer invoke the
constitutional protection. Thereafter, the parties are free to renew the
contract or not; or for the employer to extend to such employee a regular or
permanent employment. If the employee is
not given a permanent or regular employment contract on account of his
unsatisfactory work performance, it cannot be said that he was illegally
dismissed. In such case, the contract
merely expired.[42]
We
agree with the rulings of the Labor Arbiter and NLRC that respondent’s
employment was not terminated during the period of his probationary employment,
and that he was not extended a regular employment by petitioner Cathay on
account of his unsatisfactory work performance during the probationary period.[43]
As
gleaned from the evidence on record, petitioner Cathay’s decision not to extend
any regular or permanent employment to respondent was based
on findings that his work performance during the six-month probationary period
was unsatisfactory, based on the staff assessment reports of Gozun and
Montallana dated July 6, 1992 and September 30, 1992, respectively. The job performance of respondent was found
to be below normal performance or was less than normally expected of the
position of a reservation officer. Per the July 1992 Staff Assessment Report
of Gozun and Montallana which Leviste noted, while respondent had a good
relationship with the staff and was able to accomplish his work, he had been
seen chatting noisily with them during office hours, thus disrupting the
operations of the reservation department. Worse, he always left his work area
and chatted leaving calls from the public unanswered.
Leviste
called the attention of respondent on the said reports and urged him to avoid
the same infractions and to improve on his work performance. Despite these reminders,
respondent remained adamant and still entertained personal calls not only in
his own workstation but in others’ as well, and also passed on to colleagues the
calls he received on his own. Respondent
could not be relied upon to carry out the obligation of his position as he took
a lot of personal calls from one cubicle to another. Thus, Leviste testified:
ATTY. VILLANUEVA
Will you please describe to this Court how you explain it with Mr. Marin?
WITNESS
Mrs. Montallana was holding the staff assessment in front of Mr. Marin and I was seated here. Mrs. Montallana went through the assessment form one by one telling him his strong points and weak points. And after that assessment, after Mrs. Montallana finished, I told Mr. Marin, “you know now already your over-all performance for the first three months. You know now your good points and you know your weak points. You continue with your good points but you must improve to your weak point.” But I am very particularly concerned about his distructive behavior. I said to him that I am particularly more concerned about your distructive behavior. Then he said, what do you mean by distructive?
ATTY. ANDRES
Your Honor please, the answer of the witness is too far from the question already.
ATTY. VILLANUEVA
The question was, will you please describe how she explained it with Mr. Marin.
WITNESS
I myself told him about his distructive behavior. Then, he told me, “what do you mean by distructive?” I said, “I am specifically referring to comments made by his supervisor that you are chatting noisily around the area.” According to his supervisor, he is chatting noisily around the area and he is leaving his working area and leaving calls unattended.
ATTY. VILLANUEVA
Sometime in August 1992, do you recall any unusual incident involving Philip Marin?
WITNESS
Yes.
ATTY. VILLANUEVA
And what is this?
WITNESS
At that time, Mr. Gozun called me out to the office and told me, “Tingnan mo si Philip, naka-break iyan, pero nasa working area, nakikipagdaldalan.”
I just simply told him “get Mr. Marin out of the working area so that the staff on duty can continue their work.”
ATTY. VILLANUEVA
Now, how about on
WITNESS
Yes.
ATTY. VILLANUEVA
What is that?
WITNESS
On September 17, I called his attention. Actually, that particular time, I called Mrs. Montallana to my office and told her, “look Philip, he is standing up and going to another ADC position and he was taking personal calls.”
ATTY. VILLANUEVA
How did you know that it was a personal call?
WITNESS
Because my phone is equipped with a monitoring device. If you lift that up and put on monitoring, you can immediately find out that it is personal call. And at that time, I told Mrs. Montallana to call and ask Mr. Marin to come to my office and I said to him, “Why are you taking personal call on another ACD position?” You know that you are not permitted to do that because you are not or it is not allowed to take personal call on the ADC position.
ATTY. VILLANUEVA
What do you mean by ACD position?
WITNESS
Automatic call distribution. Let say, for example, you are assigned to TCI, you will be occupying that position and that is ADC position. If you take a personal call to another cubicle, it is not allowed. He confirmed that he was taking personal call. I told him that “you know, Philip, you are not supposed to take personal calls.” He told me that the caller was a friend of her sister. I said, “please make sure that you do not do that again. You are disrupting the operations. If you do that, if you get out of your table, your ACD position, that phone will be clogged. If you go to another area, the local will clogged again.” So I told him, “please make sure that you do not do that again because are disrupting the flow of calls.”
ATTY. VILLANUEVA
How about on
WITNESS
Yes. I have to call his attention again.
ATTY. VILLANUEVA
What was that incident?
WITNESS
At that time, there was no floor supervisor to the office because at that time, Mr. Gozun was on leave. At that time, Mrs. Montallana and myself were in my room and we were discussing of a particular report. You know, it is a habit of mine to glance at or to look at the telephone sales area because this area has a window in front of it and I saw Mr. Marin taking personal call again on an ADC position. Immediately, I said, “Nenita, let us monitor this.” And after that, he went back to the desk and after awhile, another staff call him to go to take a personal call and we monitored this again. I said, “naku, malala na talaga ito.” Normally, if it is a personal call, we don’t listen. You will know that it is a personal call. So we put it down. After that, another staff called him again. This time, when he went there, we listened again and this time, we listened longer because we were taking a lunch. It was another Cathay Pacific staff on a ADC talking to him. They were talking about a trip and about the pasalubong. So we called him at that time. I asked Mrs. Montallana to call him and I told, “Philip, yesterday I just told you that you are not supposed to take personal call. Why did you do it again?”[44]
Conductwise,
respondent needed a big improvement. He
was noisy and was always talking with the staff even if there were a lot of
calls. He took his coffee breaks in the
work area; he disrupted his colleagues who were at work during lunch breaks; he
was restless and could not stay in the work area during work hours; he needed
maturity in tackling his daily tasks, and needed “improvement on some CX
entries to facilitate his daily transactions in Cupid Mare practice and in
Abacus.”[45]
Respondent
failed to realize that, in a working environment, conduct is very important as
part of a related field. Respondent had
to improve on the functionalities and techniques of his work which his former
job did not emphasize on. In fine, respondent’s conduct violated Rules II(c), IV and V of House
Rules of the Reservation Department, which read:
II. BREAKS
x x x x
C. Breaks shall be taken only in the Staff Room and/or the Staff Lounge. No breaks shall be taken in the work areas.
Example: TELESALES AREA, QUEUE HANDLING AREA and FLIGHT REVIEW AREA[46]
x x x x
IV. PERSONAL CALLS
A. Personal calls maybe done only during break time and only through telephone number 8122691.
B. Taking or making personal calls is strictly prohibited during an employee’s tour of duty or company time.
C. Taking of personal calls from the ACD (Automatic Call Distribution System) or Business lines is strictly prohibited at all times unless it is an emergency.
D. Incoming personal calls from the ACD and direct lines shall be noted down and message deposited in the message board of the Department.
V. ORDER AND DISCIPLINE IN THE WORK AREA
A. Order and discipline must, at all times, be maintained in the work area.
B. No employee shall be allowed to take his/her break in the work area.
Example: TELESALES AREA, QUEUE HANDLING AREA and FLIGHT REVIEW AREA
C. Chatting, gossiping or talking noisily in the work areas at all times are strictly prohibited.
D. No employee shall leave his/her designated work stations or area unless with prior knowledge of his/her Supervisors.[47]
Respondent
cannot feign ignorance of these rules.
On
Indeed,
when he testified, respondent declared that the said rules were relayed to him,
and that he found out about them on his own initiative.[50] Respondent was bound to comply with and
follow the rules and regulations. One of
his responsibilities was to answer calls or queries from the public related to the
itinerary of passengers and bookings, and to respond to telexes from one port
to another in the telesales area. He was prohibited from making or receiving
personal calls in the telesales area, which was also off-limits during coffee
or lunch breaks. He was prohibited from
leaving his booth in the area except during coffee or lunch breaks.[51]
Respondent’s
claim that the infractions contained in the staff assessment reports were
fabricated by Gozun, Montallana and Leviste, has no factual basis. Admittedly, neither of them issued a Memorandum
to respondent relative to his infractions or misdeeds; respondent was merely
verbally apprised of the staff assessments. However, Gozun, Montallana and
Leviste merely complied with the Memorandum of M.A. Canizares on October 14,
1992 to all department heads of the probationary staff, which states that
“written memorandum may be dispensed with for administrative convenience but
the employee’s attention should be called at all times and discussed with the
employee concerned.” The supervisors
were required to give the probationary employees every opportunity to qualify as
regular employees.”[52]
Likewise barren of merit is
respondent’s claim that his infractions/misdeeds are mere fabrications or
products of the afterthought of Gozun, Montallana and Leviste. He failed to adduce proof to show that his
previous supervisors had any ill motive to falsely ascribe to him the infractions/misdeeds.
The rule is settled that where there is nothing to indicate that a witness was
actuated by improper motive his positive and categorical declaration on the
stand, made under solemn oath, should be given full faith and credence.[53]
Indeed, Leviste denied the claim of respondent that he was illegally dismissed. Her testimony is as follows:
ATTY. VILLANUEVA
Philip Marin mentioned here in his affidavit that allegedly you told him that his performance was very good. What can you say about this claim of Mr. Philip Marin?
WITNESS
That is totally untrue. I was there in the first assessment. Mrs. Montallana told me that his performance was below normal. On the second assessment, that was also the same. The conclusion of Mr. Philip Marin was contrary to what our assessment.
ATTY. VILLANUEVA
Philip Marin also claimed that in his complaint/affidavit that you allegedly illegally dismissed him. What can you say about truth or falsity of this accusation?
WITNESS
That is certainly not true. I think, that is, baseless. I think, no employer in his right mind who spent lump sum of money, time and effort in training him, that is, almost 36 months, would just dismiss a good employee. But in the case of Mr. Marin, after assessment of the supervisors which I thorough (sic) reviewed, we found out that his performance was below normal.
ATTY. VILLANUEVA
Mrs. Leviste x x x
WITNESS
As a matter of fact, it was a difficult
decision on our part because we have to sacrifice such investment because,
otherwise, we know that we will have a problem in our hand.[54]
In
fact, Leviste even went out of her way to suggest to respondent to resign voluntarily,
or else face the adverse consequences of not being extended regular employment on
account of unsatisfactory work performance; had he resigned voluntarily before
the expiry of the probationary period, he would have brighter prospects of
employment with another airline or other business entities. This is gleaned
from Leviste’s testimony:
ATTY. VILLANUEVA
Mrs. Leviste, you mentioned that you submitted … You mentioned that after you talked with Philip Marin regarding your suggestion in good faith for him to resign voluntarily so that his prospect for future employment may not be prejudiced, otherwise he could not truthfully say to his future employer that he was not extended his regular employment?
WITNESS
Yes.
ATTY. VILLANUEVA
Your affidavit mentioned that apparently Mr. Marin saw the wisdom of your suggestion. What were these letters? Which of the two letters simultaneously gave to Philip Marin?
WITNESS
One was the letter of resignation.
ATTY. VILLANUEVA
Letter of resignation or letter accepting his resignation?
WITNESS
Letter accepting his resignation and the letter terminating his probationary employment.
ATTY. VILLANUEVA
After you have given these letters accepting his resignation and the other letter terminating his probationary employment, do you recall what, if any, was the reaction of Philip Marin?
ATTY. ANDRES
The witness would be incompetent.
ATTY. VILLANUEVA
On the basis of her observation. All right, I will rephrase my question.
Did you give these two letters?
WITNESS
That was October 2. That was in the afternoon.
ATTY. VILLANUEVA
These two letters were given by you simultaneously?
WITNESS
Yes.[55]
However,
respondent rejected the suggestion and opted to file his complaint with the
NLRC. A decision of petitioner to afford
respondent a graceful exit is perfectly within its discretion.[56]
While
it is true that respondent was not furnished with the pink-colored set of
regulations of petitioner
In the light of his intransigent
refusal to mend his ways and follow company rules and regulations, respondent cannot
expect his employment to be regularized simply because he was not furnished
with a copy of the document containing the standards promulgated by it. On this
matter, the following pronouncement of the Court in Aberdeen Court, Inc. v. Agustin, Jr.[59]
is instructive:
The above rule, however, should not be used to exculpate a probationary employee who acts in a manner contrary to basic knowledge and common sense, in regard to which there is no need to spell out a policy or standard to be met. This is what the NLRC found to be the fact in this case. Said the NLRC:
It bears stressing that even if technically the reading of air exhaust balancing is not within the realm of expertise of the complainant, still it ought not to be missed that prudence and due diligence imposed upon him not to readily accept the report handed to him by the workers of Centigrade Industries. Required of the complainant was that he himself proceed to the work area, inquire from the workers as to any difficulties encountered, problems fixed and otherwise observe for himself the progress and/or condition/quality of the work performed.
As it is, We find it hard to believe
that complainant would just have been made to sign the report to signify his
presence. By saying so, complainant is inadvertently
degrading himself from an electrical engineer to a mere watchdog. It is in this regard that We concur with the
respondents that by his omission, lack of concern and grasp of basic knowledge
and common sense, complainant has shown himself to be undeserving of continued
employment from probationary employee to regular employee.[60]
It
bears stressing that the decision of petitioner not to regularize the
employment of respondent was based on the recommendation of Gozun, Montallana
and Leviste, based on their assessment of respondent’s performance:
2. The overall performance of the probationary staff shall be assessed by the Department Head and Supervisor at the end of the third month of the probationary period. A second and final assessment of the overall performance of the probationary staff shall be conducted before the end of the sixth month of the probationary period to determine whether the probationary staff may be confirmed as a regular employee.
3. Department Heads and Supervisors shall be directly responsible for the discipline of probationary staff in the departments giving them every opportunity of qualifying as regular employees. Written memos may be dispensed with for administrative convenience, but the employee’s attention should, at all times, be called and discussed with the employee(s) concerned.
4. Probationary staff may be confirmed as
regular employees based on the recommendation to Manager Philippines of the
Department Heads and/or Supervisor.[61]
Thus,
respondent cannot validly claim that he was denied due process simply because
he was not given a copy of the
IN LIGHT OF ALL THE FOREGOING, the
petition is GRANTED. The Decision of the Court of Appeals is REVERSED. The decision of the National Labor Relations
Commission affirming, on appeal, the decision of the Labor Arbiter is AFFIRMED. No costs.
SO ORDERED.
ROMEO J.
CALLEJO, SR.
Associate Justice
WE CONCUR:
ARTEMIO V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO YNARES-SANTIAGO MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice Associate Justice
MINITA V. CHICO-NAZARIO
Associate Justice
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] Penned by Associate Justice B.A. Adefuin-De
la Cruz (retired), with Associate Justices Salome A. Montoya (retired) and
Renato C. Dacudao, concurring; rollo,
pp. 32-39.
[2] Exhibit “B,” records, p. 160.
[3]
[4] Exhibit “F,” records, p. 170.
[5] Exhibit “G,” id. at 171.
[6] Records, p. 2.
[7]
[8] TSN,
[9] TSN,
[10]
[11] Exhibits “D” to “E,” records, pp. 167-169.
[12] Exhibit “5,” id. at 142.
[13] Exhibits “3” and “4,” records, pp. 134-141.
[14] TSN,
[15]
[16] TSN,
[17]
[18]
[19] Exhibits “3” and “4,” records, pp. 134-141.
[20] TSN,
[21]
[22] Records, pp. 67-69.
[23] TSN,
[24] Records, p. 94.
[25]
[26] Exhibit “6,” records, p. 176.
[27] Rollo, pp. 60-67.
[28] Exhibits “3” and “4,” records, pp. 134-141.
[29] Rollo, pp. 44-59.
[30]
[31]
[32]
[33]
[34]
[35]
[36]
[37]
The Secretary of Labor issued Department Order No. 10, Series of 1997, which
took effect on
Probationary employment. – There is probationary employment where the employee, upon his engagement, is made to undergo a trial period during which the employer determines his fitness to qualify for regular employment, based on reasonable standards made known to him at the time of engagement.
Probationary employment shall be governed by the following rules:
x x x
(c) The services of an employee who has been engaged on probationary basis may be terminated only for a just cause, when he fails to qualify as a regular employee in accordance with the reasonable standards prescribed by the employer.
(d) In
all cases of probationary employment, the employer shall make known to the
employee the standards under which he will qualify as a regular employee at the
time of his engagement. Where no
standards are made known to the employee at that time, he shall be deemed a regular
employee.
[38] De la Cruz, Jr. v. National Labor Relations
Commission, G.R. No. 145417, December 11, 2003, 418 SCRA 226, 236.
[39] Dusit Hotel
[40] 377 Phil. 711, 717 (1999).
[41] G.R.
No. 113337,
[42] Colegio de San Agustin v. National Labor
Relations Commission, G.R. No. 87333,
[43] TSN,
[44] TSN,
[45] Exhibit “3” and “4,” records, pp. 134-141.
[46] Exhibit “6,” id. at 176.
[47] Exhibit “6-A,” id. at 177.
[48] Exhibits “1” and “2.”
[49] TSN,
[50] TSN,
[51]
[52] Exhibit
“5”; TSN,
[53] People v. Dela Cruz, 402 Phil. 138, 151
(2001).
[54] TSN,
[55]
[56] Willi Hahn Enterprises v. Maghuyop, G.R.
No. 160348,
[57]
[58] Alcira v. National Labor Relations
Commission, G.R. No. 149859,
[59] G.R.
No. 149371,
[60]
[61] Exhibit “5,” records, p. 142.
[62] TSN,