Republic of the
Supreme Court
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G.R. No. 152949 |
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INCORPORATED and |
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MSGR. ADOLFO P. DEPRA, |
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Present: |
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Petitioners, |
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YNARES-SANTIAGO,
J., |
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Chairperson, |
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AUSTRIA-MARTINEZ, |
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- versus - |
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CHICO-NAZARIO, |
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NACHURA, and |
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REYES, JJ. |
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RODOLFO P. GUARINO, |
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Promulgated: |
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Respondent. |
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August 14,
2007 |
x - - - - - - - - - - - - - - - - - - - - - - - - - -
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D E C I S I O N
AUSTRIA-MARTINEZ,
J.:
Before the Court is a petition for Review
on Certiorari under Rule 45 of the Rules of Court filed by
The undisputed facts, as summarized by
the CA, are as follows:
Private respondent Guarino was first hired in 1972 as an instructor by
In 1974, private respondent was appointed as Acting Dean of the Commerce and Secretarial Department.
On
A
year after, private respondent went on leave for one year from
On
However, in petitioner’s response, it informed private respondent that he cannot anymore reassume his former position as Acting Dean of the Commerce and Secretarial Department because he is not qualified for the position.
Then, on November 10, 1992, petitioner formally informed private respondent that the Board of Trustees of the petitioner college has decided not to allow him to reassume his position as Acting Dean for the reason that he has not qualified to continue holding the position and that the position of Acting Personnel director has already been filled up by a regular incumbent.
Hence, on
On
Rodolfo P. Guarino (respondent)
filed an appeal with the National Labor Relations Commission (NLRC). On
WHEREFORE, the respondents are hereby ordered to pay the complainant separation pay for his discharge from the position of Dean of Commerce and Secretarial Science, equivalent to one month pay for every year of service, a fraction of six months being considered one year.
The respondents are further ordered to reinstate the complainant in his position as personnel director with full backwages from the time his salaries were withheld from him until his actual reinstatement, and as instructor without backwages.
The respondents are furthermore ordered to pay the complainant 10% of the monetary awards as attorney’s fees.
Other claims are hereby DISMISSED for lack of sufficient evidence.
Complainant's monetary
awards up to P149,955.85 computed as follows:
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I Separation Pay as Dean |
------ |
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II Backwages as Personnel Director (Nov. 10, 1992-March 10, 1995) Sub-total III 10% ATTORNEY’S FEES
Grand total |
------ ------ ------ |
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SO ORDERED.[4]
Aggrieved by the Decision of the NLRC, petitioners filed a
special civil action for certiorari with the CA. On
Hence, herein petition with a sole Assignment of Error, to
wit:
THE COURT OF APPEALS COMMITTED
GRAVE ABUSE OF DISCRETION IN DISREGARDING THE WELL-SETTLED DOCTRINE LAID DOWN
IN LA SALETTE OF SANTIAGO, INC. v. NLRC, 195 SCRA 80 [1991] THAT NO
EMPLOYEE ATTAINS A SECOND SECURITY OF TENURE TO AN ADMINISTRATIVE POSITION.[7]
Petitioners contend that it is not a disputed fact that,
during his employment with petitioner ACI, respondent held three concurrent
positions: those of an instructor, Acting Dean of the Commerce Department and
Acting Personnel Director; what petitioners refused to give back to respondent
when he was sent a letter dated November 10, 1992 were his positions as Acting
Dean and Acting Personnel Director; respondent was never stripped of his
position as an instructor. Citing the
case of La Salette of Santiago, Inc. v. National Labor
Relations Commission,[8]
petitioners assert that while an employee attains security of tenure as a
member of the teaching staff of a private educational institution from which he
could only be removed for cause, he cannot always aspire for a second tenure in
an administrative position and can, therefore, be stripped of this position by
the appointing power without the latter being held responsible for illegal
dismissal. Petitioners argue that when private
respondent was not allowed to re-assume his former administrative positions as
Acting Dean and Acting Personnel Director but was still considered as an
instructor and was even prodded to resume his teaching responsibilities, he
could not be considered as having been illegally dismissed.
Petitioners further argue that there was no law or
agreement which gave respondent additional tenure as dean; that his appointment
as dean in a regular capacity was made dependent on his graduation with a
degree of Master in Business Administration (MBA), as this is a requirement
imposed by DECS Order No. 5, Series of 1990 as well as the Manual of Regulations
for Private Schools; that petitioner was not able to finish his MBA which
compelled petitioner ACI to withhold the position from him.
Petitioners also aver that respondent’s appointment as Dean
and Personnel Director was only in an acting but never
in a regular capacity. Citing various rulings of this Court, petitioners
contend that a bona fide appointment in an acting capacity is
essentially temporary and revocable in character and the holder of such an
appointment may be removed anytime even without hearing or cause.
On the other hand, respondent argues that petitioners’
reliance on La Salette is misplaced, as the
factual circumstances obtaining therein are materially different from those in
the present case. Respondent contends
that in La Salette, the complainant therein
was appointed to various administrative positions for a definite or fixed term,
while in the present case respondent was appointed as dean not for a fixed
duration but for an indefinite period. In
addition, respondent claims that by continuously serving as Dean of ACI’s Commerce and Secretarial Department for more than 17
years, his assumption of the said office could not be considered as temporary. He claims that while he was not formally
appointed as dean, he has acquired security of tenure as such pursuant to the
provisions of Article 280 of the Labor Code.[9]
The Court finds the petition meritorious.
Respondent’s termination as Acting Personnel Director is
valid.
The factual milieu in La Salette
is similar to the present case insofar as respondent’s position as Personnel
Director is concerned. In La Salette, the respondent therein occupied different
administrative positions in various capacities every so often and for a period
not exceeding three years. For three years,
she was the principal of La Salette Jones High
School. For the next three years she
worked as teacher and Subject Area Coordinator of a sister school, La Salette of Santiago. Thereafter, for seven years, she was employed
as a full-time instructor in still another sister corporation, La Salette College; and for two years of that period, she
served as the Head of the Department of Education and Liberal Arts. After which, for three years, she was assigned
as Assistant Principal of the High School Department of La Salette
of
What is immediately apparent from this second look at the material facts is that while Clarita Javier’s work as teacher in the La Salette School System was more or less continuous, or was evidently intended to be on a permanent basis, her assignment in one administrative office or another-i.e., as high school principal, subject area coordinator, head of a college department, assistant principal- was not. In these administrative posts, she served in a non-permanent capacity, either at the pleasure of the school or for a fixed term. She could not but have become aware of the pattern in her employment relationship with her employer, of the duality in the nature of her employment, particularly of the non-permanent character of her stints in the administrative positions to which she was designated.
There was therefore no
cause for her to believe that security of tenure could be obtained by her in
any of the administrative positions she held at one time or another. On the contrary, the temporariness of her
occupancy of those administrative offices must have become quite apparent to
her, in light of the facts. x x x[10]
In the present case, it is not disputed that respondent was
appointed as Acting Personnel Director on
Moreover, in La Salette,
the respondent’s appointment to the various administrative
positions she held were not even in an acting capacity. Yet this Court held that she never attained
security of tenure with respect to these positions. In the present case, with all the more
reason
should respondent not expect that he has gained security of tenure, considering
that his appointment was only in an acting capacity.
This Court has held that an acting appointment is merely
temporary, or one which is good until another appointment is made to take its
place.[11] And if another person is appointed, the
temporary appointee should step out and cannot even dispute the validity of his
successor’s appointment.[12] The undisturbed unanimity of cases is that one
who holds a temporary appointment has no fixed tenure of office; his employment
can be terminated anytime at the pleasure of the appointing power without need
to show that it is for cause.[13]
Insofar as the principles governing permanent and temporary
appointments are concerned, this Court finds the ruling in the more recent
case of Achacoso v. Macaraig[14] relevant and
instructive. While Achacoso served as the jurisprudential basis in cases
involving the issue of security of tenure in career
executive service positions in the government, this Court finds the rules on
permanent and temporary appointments enunciated therein applicable to the
present case.
This
Court held in Achacoso that a permanent
appointment can be issued only to a person who meets all the requirements for
the position to which he is being appointed; a person who does not have the
requisite qualifications for the position cannot be appointed to it in the
first place or, only as an exception to the rule, may be appointed to it merely
in an acting capacity in the absence of persons who are qualified; the purpose
of an acting or temporary appointment is to prevent a hiatus in the discharge
of official functions by authorizing a person to discharge the same pending the
selection of a permanent or another appointee; the person named in an acting
capacity accepts the position under the condition that he shall surrender the
office once he is called upon to do so by the appointing authority.[15]
Consistent with the rulings in La Salette,
Achacoso and the other cases cited
above, respondent could not have attained security of tenure with respect to
his position as Personnel Director of ACI. His termination as such is valid.
On the other hand, the factual circumstances are different
with respect to respondent’s appointment as Acting Dean of ACI’s
Commerce Department. In the present
case, respondent was allowed to occupy the position of Acting Dean for a
continuous period of 17 years, more or less, beginning in 1974 until he went on
leave on
Nonetheless, the Court finds respondent’s termination as
Acting Dean also valid for the following reasons:
Petitioners assert that under DECS Order No. 5, Series of
1990, as well as Section 41 of the Manual of Regulations for Private Schools, the
acquisition of a Master’s degree has been made a requirement before a person
can be appointed as Dean of an undergraduate program.
Article IV (1) (1.2) of DECS Order No. 5, Series of 1990,
provides for the following minimum qualifications for the position of chairman,
dean or director of a school’s accounting program, to wit:
a. Holder of a CPA certificate issued by the Professional Regulation Commission;
b. Holder
of at least a master’s degree in business, accountancy, or business education;
c. Teaching experience of at least three (3) years;
d. The ability to lead and gain the confidence and respect of the faculty.
However,
the Court finds that petitioners erred in relying upon the above-quoted
provisions of DECS Order No. 5, Series of 1990, as its basis in dismissing
respondent as the Acting Dean of its Commerce Department, because the said
Order specifically applies only to the position of chairman, dean or director
of a school’s Accounting Department. Moreover,
petitioners failed to refute respondent’s contention in his Position Paper that
the Department of Commerce to which he was assigned consists of many fields of
study other than accounting.
The Court also notes that the Manual being referred to by
petitioners is the 1992 Manual of Regulations for Private Schools (8th
Edition). The 1992 Manual took effect at
the beginning of the summer session of 1993.[16] Prior to its effectivity,
what was in force was the 1970 Manual of Regulations (7th Edition). The alleged illegal dismissal of respondent
took place on
In any case, it must be pointed out
that like the 1992 Manual, the 1970 Manual requires that a Dean of an
undergraduate program must have acquired an appropriate graduate degree. Paragraph 69 of the 1970 Manual provides:
69. Administrative and supervisory officials should have the following minimum qualifications, duly supported by credentials on file with the school.
a. For principal of primary and/or intermediate schools, a holder of a Bachelor's degree in Elementary Education or equivalent with three years of successful teaching experience in the elementary grades.
b. For principal of secondary schools, a holder of a Bachelor of Science in Education degree or equivalent with three years of successful teaching experience in the high school.
c. College dean, a
holder of an appropriate graduate degree with at least three years of
successful college teaching experience.
d. Dean of the
Both the 1970 and 1992 Manuals were promulgated by the
Department of Education, Culture and Sports (now, Department of Education) in
the exercise of its rule-making power as provided for under Section 70[17]
of Batas Pambansa Blg.
232, otherwise known as the Education Act of 1982. As such, these Manuals have the force and
effect of law.[18]
Since the 1970 Manual imposes minimum requirements that must be
complied with before a person can be appointed
as a college dean, petitioner ACI is duty-bound to comply with these
requirements. Otherwise, it runs the risk of incurring
administrative sanctions from DECS.[19] In the
present case, the fact that respondent was retained as an acting dean for 17 years did not give him a vested right to occupy
in a permanent capacity the position to which he was appointed. Neither do his long years of service confer
upon him the requisite qualifications which he does not possess. Not being a master’s degree
holder, he was never and could never have been appointed in a permanent
capacity, as he is not qualified under the law. Thus, pursuant to the 1970 Manual, respondent’s dismissal as
acting dean of ACI’s Commerce Department is valid.
Respondent’s appointment as dean of petitioners’ Commerce
Department was also in an acting capacity. Hence, the Court finds the rulings in La Salette and Achacoso,
which were earlier discussed, applicable.
The Court is not persuaded by respondent’s contention that
petitioner ACI is estopped from assailing respondent’s
qualification since it allowed the latter to continue occupying the position of
acting dean for more than 17 years despite the said requirement being imposed
by the DECS.
In
the present case, the employment of respondent as Acting Dean is contrary to
the express provisions of the 1970
Manual. It is settled that estoppel cannot give validity to an act that is prohibited
by law, or one that is against public policy.[20] Neither can the defense of illegality be
waived.[21] Hence, respondent’s appointment
as Acting Dean can never be deemed validated by estoppel.
Moreover, respondent cannot deny that
he is aware of the fact that a master’s degree in business administration is
required of a person who is appointed to the position of ACI’s
Dean of Commerce. He never disputed
petitioners' contention in their Answer/Position Paper[22]
filed with the Labor Arbiter that he was indeed aware of this requirement. In fact, it was in his Memorandum-Proposal
addressed to the Rector of ACI dated
In addition, one of the conditions
imposed by petitioners upon respondent in their Scholarship and Employment
contract was for him to serve as Dean of its Commerce Department after he
finished his MBA. Despite the
opportunity given him, respondent still failed to obtain an MBA. Nonetheless, respondent was still allowed to
retain his position as Acting Dean. Under the foregoing circumstances, especially in light
of the requirements imposed by law, petitioners’ extension of respondent’s appointment
can be considered simply as an act of grace on the part of the former and may not be interpreted as a change
of status from temporary to permanent. If the intention of the petitioners was to
make respondent’s appointment permanent, they would have done
so by executing a different appointment paper considering the fact that the
original appointment was of a temporary nature.
Moreover,
the provisions of Article 280 of the Labor Code are not applicable to the present case especially with respect to
the issue of respondent's acquisition of security of tenure. It is settled that questions respecting a
private school teacher’s entitlement to security of tenure are
governed by the Manual of Regulations for Private Schools and not the Labor
Code. Paragraph 75[24] of the 1970
Manual (now Section 93[25] of the 1992
Manual) lays down the requisites before a teacher can be considered as having
attained a permanent status and therefore entitled to security of tenure.
In La Salette, the Court was clear in ruling that, unlike
teachers (assistant instructors, instructors, assistant professors, associate
professors, full professors) who aspire for and expect to acquire permanency,
or security of tenure, in their employment as faculty members,
teachers who are appointed as department heads or administrative officials (e.g.,
college or department secretaries, principals, directors, assistant deans,
deans) do not normally, and should not expect to, acquire a
second status of permanency or an additional or second security of tenure as
such officer. In the instant
case, it is not disputed that respondent was never removed from his position
as instructor. He was only dismissed
from his capacity as Acting Dean and Acting Personnel Director.
As to respondent’s right to procedural
due process, this Court has held that there is no need of a notice to the
acting appointee or any form of hearing.[26]
Such procedural requirements apply where
the officer is removable only for cause.[27]
This Court reiterates the rule that a bona fide appointment
in an acting capacity is essentially temporary and revocable in character and
the holder of such appointment may be removed anytime even without hearing or
cause.[28]
As
to respondent’s entitlement to separation pay, the settled rule is that
separation pay is the amount that an employee receives at the time of his
severance from the service and is designed to provide the employee with the wherewithal
during the period that he is seeking another employment.[29]
In the present case, while respondent
was no longer allowed to return to his positions as Acting Dean and Acting
Personnel Director he was, nonetheless, retained as an instructor. Hence, he could not be deemed as separated
from the service because his employment as instructor remains.
On the other hand, if respondent chose
to seek another employment as there is no showing in the present case that he
returned to his position as instructor, petitioners
should not be faulted and made to suffer the consequence of respondent's
decision. In such a case he is deemed to have voluntarily resigned. Settled is the rule that an employee who voluntarily resigns
from employment is not entitled to separation pay unless, however, there is a
stipulation for payment of such in the employment contract or Collective
Bargaining Agreement, or payment of the amount is sanctioned by established
employer practice or policy.[30] There is no proof to show that the present
case falls under any of the above-enumerated exceptions. Hence, the Court finds no cogent
reason to award him separation pay.
WHEREFORE,
the instant petition is GRANTED. The
Decision of the Court of Appeals dated March 9, 2001 in CA-G.R. SP No. 54035,
which affirmed the Decision of the National Labor Relations Commission, Fourth
Division, Cebu City in NLRC Case No. V-0261-94 is REVERSED
and SET ASIDE. The
Labor Arbiter's Decision dated May 24, 1994 in RAB Case No. 0210-AKLAN-92
(06-11-700045-92), dismissing respondent’s complaint
for lack of merit, is REINSTATED.
No
costs.
SO
ORDERED.
MA. ALICIA
AUSTRIA-MARTINEZ
Associate
Justice
WE CONCUR:
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson
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MINITA V. CHICO-NAZARIO Associate Justice |
ANTONIO EDUARDO B. NACHURA Associate Justice |
RUBEN T. REYES
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the
Constitution, and the Division Chairperson’s Attestation, it is hereby certified
that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court’s
Division.
REYNATO S.
PUNO
Chief Justice
[1] Penned by Justice Eloy R. Bello, Jr. and concurred in by Justices Eugenio S. Labitoria and Perlita J. Tria Tirona; rollo, p.30.
[2] CA rollo, p. 187.
[3]
[4] CA Rollo, pp. 24-25.
[5]
[6] Id at. 187.
[7] Rollo, p. 7.
[8] G.R. No. 82918,
[9] Article 280. Regular and Casual Employment. -- The provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer, except where the employment has been fixed for a specific project or undertaking the completion or termination of which has been determined at the time of the engagement of the employee or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season.
An employment shall be deemed to be casual if it is not covered by the preceding paragraph: Provided, That, any employee who has rendered at least one year of service, whether such service is continuous or broken, shall be considered a regular employee with respect to the activity in which he is employed and his employment shall continue while such activity exists.
[10] La Salette of Santiago, Inc. v. National Labor Relations Commission, supra note 8, at 90.
[11] Castro v. Solidum, 97 Phil. 278, 280 (1955).
[12]
[13] Jimenea v. Guanzon, 130 Phil. 263, 269 (1968);
[14] G.R. No. 93023,
[15] Achacoso v. Macaraig, supra note 14, at 239-240.
[16] Section 104, 1992 Manual of Regulations for Private Schools; Geslani v. National Labor Relations Commission, 323 Phil. 739, 747 (1996).
[17] SEC. 70. Rule-making Authority. - The Minister of Education, Culture and Sports charged with the administration and enforcement of this Act, shall promulgate the necessary implementing rules and regulations.
[18] Sarmiento, Manual of Regulations for Private Schools, Annotated, p. 501.
[19] Section 69 of BP Blg. 232 provides for the following:
SEC. 69. Administrative Sanction. - The Minister of Education, Culture and Sports may prescribe and impose such administrative sanction as he may deem reasonable and appropriate in the implementing rules and regulations promulgated pursuant to this Act for any of the following causes:
1. Mismanagement of school operations;
2. Gross inefficiency of the teaching or non-teaching personnel;
3. Fraud or deceit committed in connection with the application for ministry permit or recognition;
4. Failure to comply with conditions or obligations prescribed by this Code or its implementing rules and regulations; and
5. Unauthorized operation of a school, or course, or any component thereof, or any violation of the requirement governing advertisements or announcements of educational institutions.
[20] Ouano v. Court of Appeals, 446 Phil. 690, 708 (2003).
[21]
[22] CA rollo, p. 42.
[23] Annex “1,” CA rollo, p. 49.
[24] 75) Full-time teachers who have rendered three consecutive years of satisfactory service shall be considered permanent.
[25] Section 93. Regular or Permanent Status. - Those who have served the probationary period shall be made regular or permanent. Full-time teachers who have satisfactorily completed their probationary period shall be considered regular or permanent.
[26]
[27]
[29]
[30] Travelaire and Tours Corp. v. National Labor Relations Commission, 355 Phil. 932, 935 (1998).