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DAVAO
CONTRACTORS DEVELOPMENT COOPERATIVE (DACODECO), represented by Chairman of
the Board Engr. Edgar L. Chavez, Petitioner, |
G.R. No. 172174
Present: Quisumbing, J., Chairperson, Carpio
Morales, |
|
- versus - MARILYN A.
PASAWA, Respondent. |
CHICO-NAZARIO,* LEONARDO-DE CASTRO,** and BRION,
JJ. Promulgated: July 9,
2009 |
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QUISUMBING, J.:
Before us is a petition for review on certiorari seeking to reverse the Resolutions
dated February 8, 2006[1] and March 28, 2006[2] of the Court of Appeals-Mindanao Station in CA-G.R.
SP No. 00822 which had dismissed the petition for certiorari on technical grounds.
The case stemmed from the following facts:
Petitioner Davao Contractors Development Cooperative (DACODECO) is a duly
registered cooperative engaged in the construction business. On P6,500.
Sometime in May 2004, the Board of Directors of DACODECO formed an
evaluation committee to assess respondent’s performance. The evaluation committee reported that
respondent’s services was just “average”; she lacked construction knowledge;
and she made a false statement in the 2004 General Assembly.[3] Upon its
recommendation, the Board of Directors dismissed respondent effective
The
committee on evaluation composed of different committee [chairmen] and vice
board chairman Mr. Roldan P. Ibañez has submitted to the Board of Directors
during our special board meeting last May 14, 2004, their findings and
evaluation of your performance for the last five months. The Board of Directors
intensively discussed, debated and carefully evaluated the issue presented to
us and with our own opinion and observation has come up with a decision that you
have not [met] the working standard of our cooperative. Therefore it is
sad to say that we have decided to terminate your services effective [M]ay 31,
2004.
Furthermore, we thank you for your services you have
rendered with us and will miss your amiable and motherly treatment you have
given to your staff and members.[4] [Emphasis supplied.]
Respondent filed a complaint for illegal dismissal and contested the
findings of the evaluation committee. She
asserted that she was able to establish the proper system and guidelines for
DACODECO’s business operations; and she was able to rectify DACODECO’s mistakes
and errors in the past, thus, improving its business output and boosting its
revenues. However, the new Chairman of
the Board of Directors disfavored the streamlining.[5] Respondent
also contended that contrary to DACODECO’s claim, she was engaged as a regular
employee.
On P6,500 and backwages from the time of her dismissal
up to the finality of his decision.
The decretal portion of the Decision reads:
WHEREFORE, premises considered, judgment is hereby rendered declaring Complainant’s dismissal as
illegal. Accordingly, the Respondent DAVAO CONTRACTORS DEVELOPMENT COOPERATIVE
(DACODECO) acting through its responsible officers is hereby ordered to pay the
complainant the sum of SIXTY EIGHT
THOUSAND TWO HUNDRED FIFTY PESOS (P68,250.00), representing her separation pay of one month salary and backwages
tentatively computed to cover the period from June
1, 2004 up to the date of promulgation of this decision.
SO ORDERED.[8]
Dissatisfied, DACODECO appealed to the National Labor Relations
Commission (NLRC). In a Resolution[9]
dated
WHEREFORE, the
appeal is hereby DISMISSED
for NON-PERFECTION. Accordingly, the decision
appealed from is now rendered final and executory.
SO ORDERED.[10]
DACODECO elevated the dismissal of its appeal to the Court of Appeals by
way of petition for certiorari. But the
appellate court dismissed it on technical grounds:
Instant petition is hereby DISMISSED
on the following grounds:
1)
the verification and affidavit of
non-forum shopping was signed by EDGAR L. CHAVEZ who does not appear to be a
party to the case nor duly authorized to institute present petition in this
Court, as the copy of the board resolution attached to the petition authorized
Mr. CHAVEZ to represent petitioner Cooperative only before the NLRC; moreover,
the copy of the board resolution was not certified nor authenticated by the
Board Secretary; and
2)
failure to indicate the following
material dates pursuant to Section 3, Rule 46 of the Rules of Court: a) date of
receipt of the assailed
SO
ORDERED.[11]
Hence, this petition wherein DACODECO alleges that the
appellate court erred:
I.
… IN DISMISSING THE PETITION
FOR CERTIORARI DESPITE THE SUBSTANTIAL COMPLIANCE OF PETITIONER TO THE
PROCEDURAL AND TECHNICAL REQUIREMENTS IN THE FILING THEREOF.
II.
… IN DISMISSING THE PETITION
FOR CERTIORARI BY GIVING MORE EMPHASIS ON TECHNICALITIES EVEN IF THE PETITION
IS CLEARLY MERITORIOUS.[12]
The sole issue is: Did the Court of Appeals err in dismissing
DACODECO’s petition for certiorari on pure technicalities?
Petitioner DACODECO contends that the appellate court erred in dismissing its petition for certiorari
on technical grounds since it substantially complied with the required
verification and certification of non-forum shopping. It alleges that affiant Edgar L. Chavez was
duly authorized by its Board of Directors to represent it in the NLRC
proceedings. It also avers that it
substantially complied with the statement of material dates since it stated
when the NLRC denied its appeal and motion for reconsideration, and when it
received the denial of its motion for reconsideration. Petitioner adds that it has a meritorious
appeal. It dismissed respondent for her
failure to meet the reasonable standards for employment and loss of trust and
confidence.
Respondent PASAWA counters that petitioner’s petition for certiorari with
the appellate court was properly dismissed for its failure to have the
verification and certification of non-forum shopping signed by an authorized
person and to state the material dates.
Respondent also argues that even if technicalities were set aside, the
petition would still fail since petitioner failed to inform her of the
reasonable standards by which her advancement to regular status would be
gauged.
Petitioner’s contentions are untenable.
Under Section 3, par. 3,[13] Rule 46 of the
Rules of Court, a petition for certiorari must be verified and accompanied by a
sworn certification of non-forum shopping. A pleading is verified by an affidavit that
the affiant has read the pleading and that the allegations therein are true and
correct of his personal knowledge or based on authentic records. On the other hand, a certification of
non-forum shopping is a certification under oath by the plaintiff or principal
party in the complaint or other initiatory pleading asserting a claim for
relief or in a sworn certification annexed thereto and simultaneously filed
therewith, (1) that he has not commenced any action or filed any claim
involving the same issues in any court, tribunal or quasi-judicial agency and no
such other action or claim is pending therein; (2) if there is such other
pending action or claim, a complete statement of the present status thereof;
and (3) if he should thereafter learn that the same or similar action or claim
has been filed or is pending, he shall report that fact within five days
therefrom to the court wherein his aforesaid complaint or initiatory pleading
has been filed.[14]
The reason the certification of non-forum shopping is
required to be accomplished by the plaintiff or principal party himself is
because he has actual knowledge of whether he has initiated similar actions or
proceedings in different courts or agencies.[15] In case the plaintiff or principal party is a
juridical entity, such as petitioner, the certification may be signed by an authorized
person who has personal knowledge of the facts required to be established by
the documents.[16]
Although petitioner submitted a verification/certification of
non-forum shopping, affiant
Edgar L. Chavez had no authority to sign the verification/certification of non-forum shopping attached to
the petition filed in the Court of Appeals. The records disclose that the authority of
Chavez was to represent petitioner only before the NLRC.[17] Moreover, the board resolution showing such
authority was neither certified nor authenticated by the Corporate
Secretary. The Corporate Secretary
should have attested to the fact that, indeed, petitioner’s Board of Directors
had approved a Resolution[18] on
On the matter of material dates, the petition for certiorari failed
to indicate the material dates that would show the timeliness of the filing thereof
with the Court of Appeals. It is settled
that the following material dates must be stated in a petition for certiorari
brought under Rule 65: first, the
date when notice of the judgment or final order or resolution was received; second, the date when a motion for new
trial or for reconsideration was filed; and third,
the date when notice of the denial thereof was received.[19] In the case
before us, petitioner failed to indicate the first and second dates,
particularly the date of receipt of the NLRC resolution and the date of filing
of the motion for reconsideration.[20] As explicitly
stated in Rule 65, failure to comply with any of the requirements shall be
sufficient ground for the dismissal of the petition.[21]
But even if these procedural lapses could be dispensed with,
the instant petition just the same merits dismissal. After an encompassing review of the records of
the case, we find no facts and circumstances which would support petitioner’s
claim of a valid dismissal.
Under Article 281[22]
of the Labor Code, a probationary employee can be legally dismissed either: (1)
for a just cause; or (2) when he fails to qualify as a regular employee in
accordance with the reasonable standards made known to him by the employer at
the start of the employment. Nonetheless,
the power of the employer to terminate the services of an employee on probation
is not without limitations. First, this power must be exercised in
accordance with the specific requirements of the contract. Second,
the dissatisfaction on the part of the employer must be real and in good faith,
not feigned so as to circumvent the contract or the law. Third, there must be no unlawful
discrimination in the dismissal. In
termination cases, the burden of proving just or valid cause for dismissing an employee
rests on the employer.[23]
Here, petitioner did not present proof that respondent was
duly notified, at the time of her employment, of the reasonable standards she
needed to comply with for her continued employment.[24]
Neither can respondent be dismissed for loss of trust and
confidence. To be a valid ground for
dismissal, 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.
It 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.
Such ground of dismissal has never been intended to afford an occasion
for abuse because of its subjective nature.[25]
As the records would show, the evaluation committee did not elaborate on its finding that respondent
made a false statement in the 2004 General Assembly. In fact, the termination letter merely cited respondent’s
failure to meet “the working standard of our cooperative” as a ground for her dismissal.[26] Even
petitioner’s position paper before the Labor Arbiter did not contain any
allegation of loss of trust and confidence as a ground for dismissal.[27] Said loss was
mentioned only for the first time in petitioner’s memorandum of appeal.[28] Clearly,
such submission is belated and lacks sufficient basis.
WHEREFORE, the instant petition is DENIED.
The Resolutions dated
SO ORDERED.
|
|
LEONARDO A. QUISUMBING Associate Justice |
|
WE
CONCUR: CONCHITA
CARPIO MORALES Associate Justice |
|
|
MINITA V. CHICO-NAZARIO Associate Justice |
TERESITA
J. LEONARDO-DE CASTRO Associate Justice |
|
ARTURO D. BRION Associate Justice |
|
A T T E S T A T I O N
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.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
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’s Division.
REYNATO S. PUNO
Chief Justice
* Designated member of the Second Division per Special Order No. 658.
** Designated member of the Second Division per Special Order No. 635.
[1] Rollo, pp. 43-44. Penned by Associate Justice Myrna Dimaranan Vidal, with Associate Justices Romulo V. Borja and Ricardo R. Rosario concurring.
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13] SEC. 3. Contents and filing of petition; effect of non-compliance with requirements. — …
x x x x
The petitioner shall also submit together with the petition a sworn certification that he has not theretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same;…
x x x x
[14] LDP Marketing, Inc. v. Monter, G.R. No. 159653, January 25, 2006, 480 SCRA 137, 141-142.
[15] Digital Microwave Corporation v. Court of Appeals, G.R. No. 128550, March 16, 2000, 328 SCRA 286, 290.
[16] Expertravel & Tours, Inc. v. Court of Appeals, G.R. No. 152392, May 26, 2005, 459 SCRA 147, 157.
[17] See Sapitan
v. JB Line Bicol Express, Inc., G.R. No. 163775,
[18] Rollo, p. 124.
[19] Lapid
v. Laurea, G.R. No. 139607,
[20] Rollo, pp. 107-118.
[21] Tambong
v. R. Jorge Development Corporation, G.R. No. 146068, August 31, 2006, 500
SCRA 399, 404; Cuñada v. Drilon, G.R.
No. 159118,
[22] ART.
281. Probationary employment.
– Probationary employment shall not exceed six (6) 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.
[23] Dusit Hotel Nikko v. Gatbonton, G.R. No. 161654, May 5, 2006, 489 SCRA 671, 675-676.
[24] Athenna International Manpower Services,
Inc. v. Villanos, G.R. No. 151303, April 15, 2005, 456 SCRA 313, 322; Secon Philippines, Ltd. v. NLRC, G.R.
No. 97399, December 3, 1999, 319 SCRA 685, 689.
[25] AMA Computer College, Inc. v. Garay, G.R. No. 162468, January 23, 2007, 512 SCRA 312, 316-317; C.F. Sharp & Co., Inc. v. Zialcita, G.R. No. 157619, July 17, 2006, 495 SCRA 387, 394.
[26] Rollo, p. 64.
[27]
[28]