THIRD DIVISION
PHILIPPINE NATIONAL
CONSTRUCTION CORPORATION, Petitioner, - versus - MARIA NYMPHA MANDAGAN, Respondent. |
G.R.
No. 160965
Present: QUISUMBING, J.,* YNARES-SANTIAGO, J.,
Chairperson, AUSTRIA-MARTINEZ, NACHURA, and TINGA, JJ.** Promulgated: July 21,
2008 |
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DECISION
NACHURA, J.:
For
resolution is a Petition for Review on Certiorari[1]
under Rule 45 of the 1997 Rules of Civil Procedure seeking the review and the
reversal of the Decision[2]
dated
Petitioner
Philippine National Construction Corporation (PNCC) hired respondent Maria
Nympha Mandagan on December 16, 1995, as Legal Assistant, with the rank of
Assistant Manager, on probationary status while she was waiting for the results
of the Bar examinations. Respondent was
assigned to the corporate legal division where she performed research work,
drafted legal opinions, served as a member of a management collective
bargaining agreement (CBA) negotiating panel, and handled litigation, mostly
labor cases. On
On
1.
Engaging in private law practice which is in violation of Section 6(a),
Section 6(b)(26) and Section 11 of the PNCC Code of Employee Discipline;
2.
Using the company’s official address as your address for your private
case which is not only in violation of Section 8(A)(1) of the PNCC Code on
Employee Discipline but is prejudicial to the best interests of the PNCC; and
3.
Representing a client who has a pending case against PNCC which is not
only prejudicial to the interests of the company but is in violation of the
ethics of your profession.[5]
This memorandum was served on
respondent on the eve of
On
On June 9, 1998, respondent submitted
another memorandum[7] denying
the charges against her, claiming that the case she handled was only an accommodation,
accepted by her upon the request and authority of then PNCC President Melvin
Nazareno and Mr. Ramirez, and that she was on leave at every scheduled hearing
of the said case. She explained that she
had the distinct impression that the lawyers of the PNCC Legal Division can take
on accommodation cases. She cited as an
example Atty. Glenna Jean Ogan who, appearing as counsel for PNCC employee Fabian Codera, was even provided
with a service vehicle and considered on official time during hearings. She further explained that when a petition
for the annulment of judgment was filed with the regional trial court (RTC)
assailing the final and executory decision in the ejectment case in favor of
Mr. Ramirez, she desisted from representing the latter. She said that she signed, as counsel of record,
the petition for certiorari filed before
the CA only for the purpose of terminating it.
She also claimed that there was no conflict of interest between
Ramirez’s labor and ejectment cases since the former was still pending
resolution.
Petitioner,
thereafter, conducted a clarificatory hearing.
Later,
petitioner, thru then PNCC President and Chief Executive Officer Rogelio L. Luis,
sent respondent a letter[8]
dated June 15, 1998 notifying her that her explanation in both memoranda and
her statements during the clarificatory conference were inconsistent,
unacceptable, and, by themselves, admission of the truth of the charges against
her. As a consequence, her employment would
be terminated effective at the close of office hours on
On
In
a Decision[10] dated
July 15, 1999, Labor Arbiter (LA) Edgardo M. Madriaga dismissed the complaint for
being unmeritorious, stating that petitioner was justified in dismissing
respondent for loss of trust and confidence for handling the constructive
dismissal case of Mr. Ramirez against PNCC, in a conflict of interest with her
employer. Petitioner was, however,
directed to pay respondent separation pay in accordance with law.
Aggrieved,
respondent appealed the said Decision to the National Labor Relations
Commission (NLRC). In the Resolution[11]
promulgated
Respondent
thus went to the CA via a special civil action for certiorari under Rule 65 of the Rules of Court. This time, the tide turned in her favor. In its Decision[13]
dated
Petitioner
moved for the reconsideration of the CA Decision insisting inter alia that respondent’s handling of even only a single
non-PNCC case already constituted a violation of the PNCC Code of Employee
Discipline, since moonlighting is strictly prohibited under existing company
rules and regulations.
The
CA, in its assailed Resolution dated
Hence,
this petition assigning the following errors:
I
THE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED THAT HEREIN RESPONDENT DID NOT VIOLATE ANY COMPANY POLICY OR REGULATION WHEN SHE HANDLED A PRIVATE CASE AND USED COMPANY TIME AND FACILITIES FOR SUCH UNAUTHORIZED OUTSIDE ENGAGEMENT.
II
THE COURT OF APPEALS GRAVELY ERRED WHEN IT FOUND NO VALID CAUSE TO TERMINATE THE EMPLOYMENT OF HEREIN RESPONDENT, A MANAGERIAL EMPLOYEE, FOR VIOLATION OF COMPANY RULES, BREACH OF TRUST, AND/OR LOSS OF CONFIDENCE.
III
THE COURT OF APPEALS GRAVELY ERRED WHEN IT ANNULLED THE RESOLUTIONS OF THE NLRC AND GRANTED HEREIN RESPONDENT’S PETITION FINDING THE NLRC TO HAVE COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION.[15]
In
a nutshell, petitioner contends that the CA erred in holding that respondent’s
dismissal was illegal when it ruled that respondent did not violate the PNCC
Code of Employee Discipline on moonlighting and personal use of company time
and property despite undisputed and overwhelming evidence to the contrary. It posits that respondent readily admitted
rendering services outside PNCC in her pleadings and her taking advantage of
office time and property was shown by using the address of PNCC for her
personal cases and utilizing her leave credits to attend hearings. It further claims that the CA gravely erred
in reversing the findings of both the LA and the NLRC despite existing
jurisprudence to the effect that their findings are entitled to great weight
and respect, nay conclusiveness, when buttressed by substantial evidence. This is in addition to the fact that the case
cited by the CA is not on all fours with the present case. It also asserts that respondent’s
fault-finding cannot exculpate her from her misdeeds. In view of these, petitioner insists that, as
employer who is given a wide latitude in determining who among its managerial
employees are entitled to its trust and confidence, and also taking into
consideration its findings of her alleged frequent tardiness and absences, her
not being able to “get along well with her co-employees,” and her
misrepresentations in the resume she submitted to Malacañang to get a favorable
endorsement for promotion, it is only justified in dismissing respondent from
employment.
The
petition is without merit.
In
petitions for review before this Court, as a general rule, only questions of
law are allowed. An exception to this is
when the findings of the administrative agencies below and the appellate court differ,
as in the case at bar.[16] Thus, an independent evaluation of the facts
of this case is called for, especially considering that, while the LA and the
NLRC both found respondent’s dismissal valid and legal, the bases for their
findings are also different.[17] Hence, the claim of petitioner that these
findings are conclusive upon us is incorrect.
Petitioner
dismissed respondent from employment because she was found guilty of the
charges against her. It found respondent
to have engaged in private law practice in violation of Sections 6(a)(b)(26)
and 11 of the PNCC Code of Employee Discipline.[18] It also found her to have used the company’s
official address for her private case in violation of Section 8(A)(1) of the same
Code, which is also prejudicial to its best interests. Finally, it found her to have represented a
client who had a pending case against PNCC.
The pertinent sections of the Code are quoted hereunder:
SECTION 6. Conduct and
Behavior
a. An
employee’s conduct in the performance of his duties should be beyond reproach
and free from the appearance of impropriety.
x x x
b. x x x
26) Moonlighting or rendering services for
another employer without the knowledge or approval of Management.
SECTION
8. Company Property. –
A. The following acts shall
constitute violation of this section:
1) Using Company property, equipment or
materials for personal use or purpose.
SECTION 11. Conflict of Interest. –
a. The following act shall
constitute violation of this section:
1)
Engaging, participating or involving oneself, directly or indirectly, in
any transaction, undertaking, or business enterprise, where such engagement,
participation, or involvement is in conflict with, or is improper or
undesirable in the interest of the Company.[19]
The imposable penalties for the said
offenses within a 12-month period are as follows: a) for moonlighting – a 5-day
suspension for the first offense, a 15-day suspension for the second offense,
and dismissal on the third offense; b) for the use of company property for
personal purposes – suspension to dismissal, depending on the gravity of the
offense; and c) for committing acts constituting conflict of interest – reprimand
to dismissal depending on the gravity of the offense.
According
to petitioner, respondent failed to substantiate her claim that her appearance
in the ejectment case of Mr. Ramirez was upon his and former PNCC President
Nazareno’s authority and directive, since she did not present any documentary
evidence to prove the same. To support
its position that respondent was without the proper authority, it presented a
handwritten note from Atty. Hoover Abling, former Head of the Legal Division of
PNCC, stating that her appearance was without his prior authority and
clearance.
We
must stress, however, that in termination cases, the burden of proof rests upon
the employer to show that the dismissal of the employee is for just or
authorized cause. Failure to do so would
mean that the dismissal is not justified.
This is consonant with the guarantee of security of tenure in the
Constitution[20] and reiterated
in the Labor Code.[21] A dismissed employee is not required to prove
his innocence of the charges leveled against him by his employer. Likewise, the determination of the existence
and sufficiency of a just cause is to be exercised with fairness and in good
faith and after observing due process.
Thus,
we agree with the CA that petitioner failed to show by clear and convincing
evidence that respondent was indeed guilty of moonlighting as defined under the
PNCC Code of Employee Discipline, i.e.,
rendering services for another employer without
the knowledge OR approval of management.
In the manner in which the rule is phrased, since the words “knowledge”
and “approval” are separated by the disjunctive OR, it is evident that even knowledge alone by the management of
PNCC of the alleged moonlighting is tantamount to an implied approval and is
sufficient to exonerate respondent from liability.
Therefore, it cannot be said that her
appearance in the ejectment case of PNCC Corporate Comptroller Ramirez was
without the knowledge of management considering that the former PNCC top
officers were the ones who asked her to do so.
Moreover, when she filed her application for leave of absence during one
of her hearings, she specifically stated in the leave form that her absence was
due to the filing of the ejectment complaint for Mr. Ramirez, and this application
was approved by petitioner.
We also find the handwritten note of the
former head of the Legal Division, Atty. Hoover Abling, presented by petitioner
to refute respondent’s allegation of approval from the top management of PNCC,
to be of questionable probative value in light of respondent’s revelation that
Atty. Abling himself appeared as counsel before the Metropolitan Trial Court of
Manila, Branch 3, in the criminal case for violation of Batas Pambansa Blg. 22[22]
filed against the wife of Jose Z. Gregorio, employee of PNCC. From the proceedings before the LA to its
pleadings before this Court, the petitioner has consistently kept silent about
the matter.
It may also be mentioned that
respondent proffered documentary evidence in the form of an exchange of correspondence
showing that another member of the Legal Division, Atty. Glenna Jean Ogan, was
hired by the very same Mr. Ramirez to handle his annulment case for a fee.[23] Again, this Court notes that petitioner tried
to dodge this allegation by simply claiming that respondent’s “name-dragging”
will not exculpate her from her misdeeds.
The CA, thus, did not err in citing Office of the Court Administrator v. Atty.
Misael M. Ladaga[24]
because the June 2, 1998 Memorandum enumerated among the violations committed
by respondent the “private practice of law.” In the cited case, we held that “private
practice of law” does not refer to an isolated court appearance but
contemplates a succession of acts of the same nature habitually or customarily
holding one’s self to the public as a lawyer.
As
to the charge that respondent made personal use of company property, the only
evidence submitted by petitioner were copies of the complaint filed before the
MTC, Parañaque City and copies of the pleadings and resolutions in the CA case,
showing that her mailing address corresponded to the company’s address. As respondent pointed out, there was no proof
from petitioner as to her use of any other properties belonging to the company. It is
safe to assume that respondent received personal mail using the address of
petitioner because, since it pertained to the same ejectment suit which the
former top PNCC officers authorized her to litigate, the handling of the said
case would be more convenient. As there
is no express prohibition under the PNCC Code of Employee Discipline as to the
use of the company’s address to receive personal mail, and, more importantly,
there is no clear and convincing proof presented by petitioner as to the
prejudice it suffered from such respondent’s act, the charge of violation of
the PNCC Code of Employee Discipline, Sec. 8(A)(1) should fall.
With
respect to petitioner’s claim that respondent’s appearance in the same
ejectment case was in conflict with the interests of the company, the NLRC
correctly found that she was able to refute the allegation by submitting
evidence that the constructive dismissal case of Mr. Ramirez was handled by
Saguisag & Associates.[25] The petitioner’s assertion is, thus, belied
by the record.
We
likewise disagree with petitioner’s position that, in addition to the ascribed violations
of the PNCC Code of Employee Discipline, it was justified in terminating
respondent from employment because of her alleged frequent tardiness and
absences, her inability to get along with some of her co-workers, and her
misrepresentations in the resume she submitted to Malacañang. The respondent properly concluded that the
claim of frequent absences and tardiness due to attendance to her private cases,
and her inability to get along well with some co-workers were not amply substantiated,
as they were, in fact, rebutted by her performance rating for the period July
1996 to April 1997 indicating that she was “[p]roficient in the duties of her
position.”[26] Anent her alleged misrepresentations in her resume
submitted to Malacañang to gain a favorable endorsement for promotion, we note
that this was raised by petitioner for the first time in the proceedings before
the LA, the same not being included in the charges enumerated in the June 2,
1998 Memorandum. In other words, these
causes were merely an afterthought, resorted to by petitioner in a futile
attempt to justify its decision to terminate respondent’s employment on the
ground of loss of trust and confidence.
Long
recognized is the right of employers to dismiss employees by reason of loss of
trust and confidence, particularly in cases of personnel occupying positions of
responsibility. The burden of proof
required in labor cases, however, must be amply discharged. Ordinarily, with respect to managerial
employees, the mere existence of a basis for believing that such employee has
breached the trust of his employer would be enough, such as when there is a
reasonable ground to believe that the employee concerned is responsible for the
purported misconduct, and the nature of his participation therein renders him
unworthy of trust and confidence demanded by his position.[27]
Be
that as it may, we must stress herein that to be a valid ground for dismissal,
the loss of trust and confidence must be based on a willful breach of trust and
founded on clearly established facts. 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 forever remain at the mercy of the employer. The employer, thus, carries the burden of
clearly and convincingly establishing the facts upon which loss of confidence
in the employee is made to rest. [28]
Loss of trust and confidence as a ground
of dismissal has never been intended to afford an occasion for abuse because of
its subjective nature. It should not be
used as a subterfuge for causes which are illegal, improper, and
unjustified. It must be genuine, not a
mere afterthought intended to justify an earlier action taken in bad
faith. Let it not be forgotten that what
is at stake is the means of livelihood, the name, and the reputation of the
employee. To countenance an arbitrary
exercise of that prerogative is to negate the employee’s constitutional right
to security of tenure.[29]
However,
it should be remembered that petitioner is a government-owned and controlled
corporation. The handling by the lawyers in its employ of cases of its
employees, whether for a fee or not, and despite the “knowledge and approval”
of management, while not absolutely prohibited is, nonetheless, discouraged, as
it could only breed corruption and cause distraction from the very duties that the
lawyers were precisely hired for. The
fact that a number of lawyers in petitioner’s employ have handled private
cases, obviously with the tolerance of petitioner, does not validate the practice
or make it an acceptable rule of conduct.
A wrong done by many does not make a right.
In
light of the foregoing, we find that respondent, although not entirely
faultless, was indeed illegally dismissed from employment by petitioner. Consequently, she 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 of the withholding of the employee’s
compensation up to the time of actual reinstatement. If reinstatement is not possible due to the
strained relations between the employer and the employee, separation pay should
instead be paid the employee equivalent to one month salary for every year of
service, computed from the time of engagement up to the finality of this
decision.
WHEREFORE, the Decision dated May 29,
2002 and the Resolution dated November 10, 2003 of the Court of Appeals in
CA-G.R. SP No. 63166 are AFFIRMED .
SO
ORDERED.
ANTONIO
EDUARDO B. NACHURA
Associate
Justice
WE CONCUR:
LEONARDO A.
QUISUMBING
Associate Justice
CONSUELO YNARES-SANTIAGO Associate Justice Chairperson |
MA. ALICIA
AUSTRIA-MARTINEZ Associate Justice |
DANTE O. TINGA
Associate Justice
A T T E S T A T I O N
I attest 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.
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, I certify
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.
REYNATO
S. PUNO
Chief
Justice
* In lieu of
Associate Justice Minita V. Chico-Nazario, per Special Order No. 508, dated
** In lieu of
Associate Justice Ruben T. Reyes, per Raffle dated
[1] Rollo, pp. 39-70.
[2]
Penned by Associate Justice Ruben T. Reyes (now Associate Justice of the
Supreme Court), with Associate Justices Renato C. Dacudao and Amelita G.
Tolentino, concurring. id. at 73-81.
[3]
[4] Records, p. 34.
[5]
[6]
[7]
[8]
[9]
[10] Rollo, pp. 97-105.
[11]
[12]
[13]
[14] 403 Phil. 228 (2001).
[15] Rollo, pp. 49-50.
[16] Eastern Telecommunications Phils., Inc. v.
Diamse, G.R. No. 169299, June 16, 2006, 491 SCRA 239, 243-244.
[17] Skippers United Pacific, Inc. v. Maguad, G.R. No. 166363, August 15, 2006, 498 SCRA 639, 657.
[18] Per the June 2, 1998 Memorandum, supra note 4.
[19] Records, pp. 46-48.
[20] Philippine Constitution, Art. 13, Sec. 3.
[21] Labor Code (as amended), Art. 227(b).
[22] Bouncing Checks Law.
[23] Rollo, pp. 160 and 161.
[24] Supra note 14.
[25] Annexes “B” and “C” to respondent’s Appeal Memorandum before the NLRC; Records, pp. 177-197 and 198-200, respectively.
[26] Rollo, pp. 162-163.
[27] Etcuban, Jr. v. Sulpicio Lines, Inc.,
G.R. No. 148410, January 17, 2005, 448 SCRA 516, 529-530.
[28] AMA Computer College, Inc. v. Garay,
G.R. No. 162468, January 23, 2007, 512 SCRA 312, 316-317.
[29] Philippine National Construction Corporation
v. Matias, G.R. No. 156283,