SECOND DIVISION
|
ABELARDO P. ABEL, Petitioner, - versus - PHILEX MINING CORPORATION, represented by FERNANDO
AGUSTIN, Respondent. |
G.R. No. 178976 Present:
QUISUMBING, J., Chairperson, CARPIO
MORALES, CHICO-NAZARIO,* LEONARDO-DE CASTRO,**
and PERALTA,***
JJ. Promulgated: July
31, 2009 |
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D E C I S I O N
CARPIO MORALES, J.:
Assailed in this petition for review
on certiorari is the January
22, 2007 Decision of the Court of Appeals in CA-G.R. SP No. 91988 denying due
course to and dismissing petitioner’s petition for certiorari which assailed the
January 31, 2005 Decision of the National Labor Relations Commission (NLRC) in
NLRC NCR CA No. 037631-03 that petitioner was legally dismissed from service on
the grounds of loss of trust and confidence and gross and habitual neglect of
duty.
By
his claim, petitioner was first hired by respondent in January, 1988. He was eventually assigned to respondent’s
Legal Department as a Contract Claims Assistant, a position he occupied for
five years prior to his transfer to the Mine Engineering and Draw Control
Department wherein he was appointed Unit Head in early 2002.[1]
Sometime
in September, 2002, petitioner was implicated in an irregularity occurring in
the subsidence area of respondent’s mine site at Pacdal, Tuba, Benguet. Petitioner’s co-worker Danilo R. Lupega
(Lupega), a Subsidence Checker at the mine site who was himself under
administrative investigation for what came to be known as the “subsidence area
anomaly,” executed an affidavit[2]
which read in relevant part:
3. That as a Subsidence Checker, I was strict in monitoring the trips of ANSECA contract [sic] for their backfilling operations, seeing to it that every truck is to be fully loaded with backfills;
4. That I noticed that there were many instances when the ANSECA trucks were not fully loaded and, likewise, the bucket of the back-hoe machine was not fully/properly loaded;
5. That I reported my unusual observations to Crispin Y. Tabogader and he replied, “Sige sasabihin ko kay Ben Garcia.” (Alright, I will tell Ben Garcia.), project manager of ANSECA;
6. That I remember reporting also the matter to Robert L. Montes, but I heard no response from him;
7. That for some days, the back-hoe operator had fully loaded the ANSECA trucks but the irregular practice of not fully loading the same had been continued;
8. That when my reports seemed unacted [sic] by Crispin Y. Tabogader & Robert L. Montes because I still observe [sic] the continuance of the irregularity of the loading operations, I went at [sic] the office of the Contract Committee to report the matter, and when I was there, I reported it to Abelardo P. Abel, and he told me, “mauna ka na at susunod na lang ako at maghahanap pa ako ng sasakyan.” (Go ahead, I will follow when I find a ride.). So I went ahead and kept on waiting but Abel did not show up at the Subsidence Area;
x x x x
13. That
sometime in 2001, I was then on 2nd shift duty eating my dinner at a
little past 7:00 PM when the telephone rang.
I lifted the phone receiver and the caller was asking for Didith, whom I
knew was the ANSECA Accountant. I told
the caller to re-dial the phone number and after he had done it, I was tempted
to lift the phone receiver and I heard the caller telling Didith, “Si Abel ito, paano na yung usapan natin?”
(This is Abel. What happened to our
deal?), and Didith answered that, “O
sige, huwag kang mag-alala, ipapaalam ko sa
14. That again sometime in 2001, I was then on 1st shift duty when the telephone rang. I lifted the receiver and the caller said, “Open pit watcher, sa ANSECA nga” (To ANSECA please.), and I answered “I-dial mo ulit” (Please dial again.), and I immediately put the receiver down on its place. When he re-dialed and was answered by ANSECA, I was again tempted to lift the phone receiver and I heard the caller saying, “Si Abel ito, paano na yung usapan natin[?]” (This is Abel. What happened to our deal?), and the ANSECA accountant replied, “O sige, hintayin mo ako sa bangko at magwiwithdraw ako.” (Alright, wait for me at the bank. I will come to make the withdrawal.). That this was only the conversation I heard between the two because I already put down the phone receiver. (Italics and translations supplied)
The
incidents alleged in Lupega’s affidavit supposedly took place when petitioner
was still a Contract Claims Assistant at respondent’s Legal Department.
In compliance with respondent’s
directive to respond to Lupega’s charges, petitioner wrote a letter to Fernando
Agustin (Agustin), respondent’s Vice President for Operations, denying Lupega’s
allegations of extortion from Anseca Development Corporation (ANSECA) and
failure to report the incidents of underloading of ANSECA’s trucks during
backfilling operations. Petitioner
averred that Lupega was only seeking to deflect his own responsibility for the
irregularities then occurring at the mine site.[3]
An investigation was promptly launched
by respondent’s officers by conducting several fact-finding meetings for the
purpose. Petitioner attended the
meetings but claimed that he was neither asked if he needed the assistance of
counsel nor allowed to properly present his side.[4]
By Memorandum dated December 7, 2002,[5]
respondent’s Administrative Division, Litigation and Investigation Section
found petitioner guilty of (1) fraud resulting in loss of trust and confidence
and (2) gross neglect of duty, and was meted out the penalty of dismissal from
employment effective December 8, 2002.[6]
Petitioner thus filed a complaint for
illegal dismissal with the NLRC against respondent, represented by Agustin,
with claims for annual vacation leave pay for 2001 and 2002.[7]
Respondent, admitting that it
dismissed petitioner, contended that the decision was preceded by regular and
proper proceedings, all attended by petitioner; that petitioner had agreed to
submit his case for decision; that it lost almost P9,000,000 from the
subsidence area anomaly; and that Crispin Y. Tabogader, Jr. (Tabogader),
Subsidence Area Head, Robert L. Montes, Draw Control Superintendent, and
Eduardo R. Garcia, Jr., Mine Engineering and Draw Control Department Manager,
had all been dismissed for their involvement in the anomaly.[8]
By Decision of September 19, 2003,[9]
the Labor Arbiter, ruling that petitioner was dismissed illegally, disposed as
follows:
WHEREFORE, premises considered, judgment is hereby rendered finding respondents guilty of illegal dismissal.
Respondents must reinstate complainant to his former or equivalent position without loss of seniority rights and other privileges and to pay him full backwages reckoned from the time his compensation was effectively withheld from him up to the time of his actual reinstatement, which as of this writing amount to One Hundred Sixty Nine Thousand Four Hundred Fifty Eight Pesos and Thirty Four Centavos (P169,458.34).
The Labor Arbiter found that
respondent failed to prove by substantial evidence the alleged fraud committed
by petitioner, explaining that the telephone conversations between petitioner
and Didith Caballero of ANSECA would not suffice to lay the basis for
respondent’s loss of trust and confidence in petitioner.
On the charge of gross negligence, the
Labor Arbiter held that no negligence was present as respondent itself admitted
that petitioner reported the underloading to Tabogader, who was then in charge of the subsidence area where the
alleged anomaly was happening.
On respondent’s appeal, the NLRC reversed the decision of the Labor
Arbiter by Decision dated January 31, 2005,[10]
finding that petitioner was guilty of gross and habitual neglect of duty as he
continually reported ANSECA’s backfilling operations as “okay” per his
inspection notwithstanding the gross underloading; and that he did not act on
Lupega’s report concerning certain irregularities. To the NLRC, petitioner’s failure to perform
his duty of inspecting ANSECA’s operations and vacillation on certain matters
during the company investigation, among other things, constituted sufficient
basis for respondent’s loss of trust and confidence.
Petitioner’s Motion for
Reconsideration having been denied by Resolution of July 7, 2005,[11]
he appealed to the Court of Appeals via certiorari.[12]
As reflected early on, the appellate
court denied due course to, and dismissed, petitioner’s appeal by Decision
dated January 22, 2007,[13] upon
a finding that what petitioner was questioning were the findings of fact and
conclusions of the NLRC which would, at most, constitute errors of law and not
abuse of discretion correctable by certiorari.
It likewise found that petitioner failed to substantiate the grave abuse
of discretion imputed to the NLRC, he not having demonstrated how the NLRC
decided in a manner contrary to the constitution, law or jurisprudence, or how
it acted whimsically, capriciously, or arbitrarily out of malice, ill will, or
personal bias.
His Motion for Reconsideration having
been denied by Resolution of July 6, 2007,[14]
petitioner comes before this Court via the present Petition for Review on
Certiorari.
Petitioner argues that respondent’s
lone witness Lupega offered no proof of the alleged incidents of underloading
of the trucks of ANSECA during backfilling operations; that he nevertheless
reported the supposed underloading to Tabogader who subsequently told him that
the problem had been solved; that it was not his principal duty to inspect the
actual loading of every truck of ANSECA as he was in fact only spending about
20% of his time on the field; that the charge of fraud based on the purported
extortion attempt was not proven; and that assuming he was negligent in
handling the reported underloading, the penalty of dismissal was too harsh given
his length of service and untarnished record.[15]
Respondent
counters that petitioner raises questions of fact or evidentiary matters which
are improper in a petition for review on certiorari; and that the findings of
the NLRC are supported by substantial evidence.[16]
The
petition is impressed with merit.
While it
is well-established that the jurisdiction of the Court in cases brought before
it via a petition for review on certiorari is limited to reviewing errors of
law,[17]
excepted therefrom is where, as in the present case, the findings of the NLRC
contradict those of the Labor Arbiter, then the Court, in the exercise of its
equity jurisdiction, may look into the records of the case and reexamine the
questioned findings.[18]
The
heart of the controversy is the validity of petitioner’s dismissal, which hinges on the satisfaction of two
substantive requirements, viz: (1)
the dismissal must be for any of the causes provided for in Article 282 of the
Labor Code; and (2) the employee was accorded due process, basic of which is
the opportunity to be heard and to defend himself.[19]
The law
mandates that the burden of proving the validity of the termination of
employment rests with the employer.
Failure to discharge this evidentiary burden would necessarily mean that
the dismissal was not justified and, therefore, illegal. Unsubstantiated suspicions, accusations, and
conclusions of employers do not provide legal justification for dismissing
employees. In case of doubt, such cases
should be resolved in favor of labor pursuant to the social justice policy of
labor laws and the Constitution.[20]
This
burden of proof was clarified in Community Rural Bank of San Isidro (N.E.),
Inc. v. Paez[21] to mean substantial evidence:
The Labor Code provides that an employer may terminate the services of an employee for just cause and this must be supported by substantial evidence. The settled rule in administrative and quasi-judicial proceedings is that proof beyond reasonable doubt is not required in determining the legality of an employer's dismissal of an employee, and not even a preponderance of evidence is necessary as substantial evidence is considered sufficient. Substantial evidence is more than a mere scintilla of evidence or relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise.
In this case, respondent dismissed
petitioner on the following grounds: (1) fraud resulting in loss of trust and
confidence and (2) gross neglect of duty.
Respecting
the first ground, Article 282(c) of the Labor Code allows an employer to
terminate the services of an employee for loss of trust and confidence:
ART. 282. Termination by employer. - An employer may terminate an employment for any of the following causes:
x x x x
c) Fraud or willful breach by the employee of the trust reposed in him by his employer or his duly authorized representative.
The first requisite for dismissal on
the ground of loss of trust and confidence is that the employee concerned must
be holding a position of trust and confidence.
Verily, the Court must first determine if petitioner holds such a
position.
There are two classes of positions of
trust.[22] The first
class consists of managerial employees. They are defined as those vested with
the powers or prerogatives to lay down management policies and to hire,
transfer, suspend, lay-off, recall, discharge, assign or discipline employees
or effectively recommend such managerial actions.[23] The second
class consists of cashiers, auditors, property custodians, etc.. They are defined as those who, in the normal
and routine exercise of their functions, regularly handle significant amounts
of money or property.[24]
In this case, petitioner was a
Contract Claims Assistant at respondent’s Legal Department at the time he
allegedly committed the acts which led to its loss of trust and
confidence. It is not the job title but
the actual work that the employee performs.[25] It was part of petitioner’s responsibilities
to monitor the performance of respondent’s contractors in relation to the scope
of work contracted out to them.[26]
Respondent relies on petitioner’s
reports regarding his inspection of the work accomplishment of such
contractors. As a result of his
monitoring the enforcement of respondent’s contracts which involve large sums
of money, petitioner may well be considered an employee with a position of
trust analogous to those falling under the second class. A position where a person is entrusted with
confidence on delicate matters, or with the custody, handling or care and
protection of the employer’s property is one of trust and confidence.[27]
The second requisite is that there
must be an act that would justify the loss of trust and confidence.[28]
Loss of trust and confidence, to be a valid cause for dismissal, must be based
on a willful breach of trust and founded on clearly established facts. The
basis for the dismissal must be clearly and convincingly established but proof
beyond reasonable doubt is not necessary.[29] Respondent’s evidence against petitioner fails
to meet this standard. Its lone witness,
Lupega, did not support his affidavit and testimony during the company
investigation with any piece of evidence at all. No other employee working at respondent’s
mine site attested to the truth of any of his statements. Standing alone, Lupega’s account of the
subsidence area anomaly could hardly be considered substantial evidence. And while there is no concrete showing of any
ill motive on the part of Lupega to falsely accuse petitioner, that Lupega
himself was under investigation when he implicated petitioner in the subsidence
area anomaly makes his uncorroborated version suspect.
The Labor Arbiter correctly found
that the alleged telephone conversations between petitioner and Didith
Caballero of ANSECA would not suffice to lay the basis for respondent’s loss of
trust and confidence in petitioner. The
relevant paragraphs of Lupega’s affidavit[30] are
restated below for convenience:
13. That
sometime in 2001, I was then on 2nd shift duty eating my dinner at a
little past 7:00 PM when the telephone rang.
I lifted the phone receiver and the caller was asking for Didith, whom I
knew was the ANSECA Accountant. I told
the caller to re-dial the phone number and after he had done it, I was tempted
to lift the phone receiver and I heard the caller telling Didith, “Si Abel ito, paano na yung usapan natin?”
(This is Abel. What happened to our
deal?), and Didith answered that, “O
sige, huwag kang mag-alala, ipapaalam ko sa
14. That again sometime in 2001, I was then on 1st shift duty when the telephone rang. I lifted the receiver and the caller said, “Open pit watcher, sa ANSECA nga” (To ANSECA please.), and I answered “I-dial mo ulit” (Please dial again.), and I immediately put the receiver down on its place. When he re-dialed and was answered by ANSECA, I was again tempted to lift the phone receiver and I heard the caller saying, “Si Abel ito, paano na yung usapan natin?” (This is Abel. What happened to our deal?), and the ANSECA accountant replied, “O sige, hintayin mo ako sa bangko at magwiwithdraw ako.” (Alright, wait for me at the bank. I will come to make the withdrawal.). That this was only the conversation I heard between the two because I already put down the phone receiver. (Italics and translations supplied)
Even assuming that the foregoing conversations attributed
to petitioner and Didith Caballero of ANSECA took place, they do not amply establish
petitioner’s involvement in a scheme to defraud respondent. Lupega’s account is only one piece of a huge
puzzle. There are yet too many missing
pieces. The purported telephone
conversations fail to convince the Court that they constitute such relevant
evidence as a reasonable
mind might accept as adequate to support the conclusion that petitioner
attempted to extort money from ANSECA in connection with its backfilling
operations to the prejudice of respondent.
To doubt is to rule in favor of labor.
With regard to the second ground for
petitioner’s dismissal, Article 282(b) of the Labor Code provides:
ART. 282. An employer may terminate an employment for any of the following causes:
x x x x
(b) Gross and habitual neglect by the employee of his duties.
To warrant removal from service, the negligence should
not merely be gross but also habitual.[31] Gross negligence implies a want or absence of
or failure to exercise even slight care or diligence, or the entire absence of
care. It evinces a thoughtless disregard
of consequences without exerting any effort to avoid them.[32] Habitual neglect implies repeated failure to
perform one's duties for a period of time, depending upon the circumstances.
The single or isolated act of negligence does not constitute a just cause for
the dismissal of the employee.[33]
In this case, respondent faulted
petitioner for his supposed inaction on Lupega’s report regarding the alleged
incidents of underloading of ANSECA’s trucks during backfilling
operations. Respondent considered
petitioner’s referral of the matter to Tabogader improper because his immediate
superior was Gil C. Pagulayan, Contract and Claim Section Head.[34]
Respondent’s
arguments fail to persuade. To the
Court, petitioner’s referral of the matter to Tabogader, who was then the
Subsidence Area Head, hardly indicates gross negligence as it in fact belies
the total absence of care or thoughtless disregard of consequences. Petitioner’s subsequent inaction was brought
about by Tabogader’s assurance that the problem had been solved, which
respondent does not contest.
AT ALL EVENTS, even assuming that there
was some lapse in judgment on the part of petitioner in the way he handled the
report of Lupega, the same does not amount to habitual neglect as petitioner
did not repeatedly fail to perform his duties for a period of time. Respondent has not cited other similar
shortcomings of petitioner to show habituality.
There
being no just cause for the termination of petitioner’s employment, the compelling
conclusion is that he was dismissed illegally.
While it is unnecessary at this point to delve into the requirement of
procedural due process, the Court shall nevertheless discuss it in view of its
importance.
In R.B. Michael Press v. Galit,[35]
the Court had occasion to reiterate that under the twin notice requirement, the
employees must be given two notices before their employment could be
terminated: (1) a first notice to apprise the employees of their fault, and (2)
a second notice to communicate to the employees that their employment is being
terminated. To this, the Court added:
Not to be taken lightly, of course, is the hearing or opportunity for the employee to defend himself personally or by counsel of his choice.
The procedure for this twin notice
and hearing requirement was thoroughly explained in King of Kings Transport v. Mamac[36]
in this wise:
(1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 282 is being charged against the employees.
(2) After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given an opportunity to (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, the conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.
(3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.
A
careful examination of the disciplinary procedure adopted by respondent which
led to the dismissal of petitioner shows that respondent did not satisfy the
first written notice requirement.
Albeit the
The
Court cannot overemphasize that the first written notice to the employee bears
heavily upon his intelligent preparation for his defense. It enables him to squarely address the
accusations against him and guides him in deciding whether to consult a union
official or lawyer, or gather data and evidence.
The Court is not unmindful of the
equally important right of respondent as employer under the Constitution to be
protected in its property and interest.
The particular circumstances attendant in this case, however, convince
the Court that the supreme penalty of dismissal upon petitioner is not
justified. The law regards the workers with compassion. Even where a worker has committed an
infraction of company rules and regulations, a penalty less punitive than
dismissal may suffice. This is not only
because of the law's concern for the workingman. There is, in addition, his family to
consider. Unemployment brings untold hardships
and sorrows on those dependent upon the wage-earner.[38]
In fine, petitioner, although not
entirely faultless, was dismissed without just cause and procedural due
process. Consequently, he is entitled to
reinstatement and full backwages. If, however, reinstatement is no longer
possible due to the strained relations between petitioner and respondent,
separation pay should instead be paid equivalent to one month salary for every
year of service, in addition to full backwages.
Finally, petitioner’s claims for
annual vacation leave pay for 2001 and 2002 must be denied in light of his
failure to prove the bases therefor.
WHEREFORE, the
assailed Decision of the Court of Appeals is REVERSED and SET ASIDE. Respondent is ordered to reinstate petitioner
to his former position or its equivalent without loss of seniority rights and
privileges, and to pay him full backwages inclusive of allowances and other
benefits or their monetary equivalent, from the time of his dismissal until his
actual reinstatement; or, if reinstatement is no longer feasible, to give him
separation pay equivalent to at least one month salary for every year of
service, computed from the time of engagement up to the finality of this
decision.
SO ORDERED.
CONCHITA CARPIO MORALES
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
|
MINITA V. CHICO NAZARIO Associate Justice |
TERESITA J. LEONARDO-DE CASTRO Associate Justice |
DIOSDADO M.
PERALTA
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.
LEONARDO
A. QUISUMBING
Associate
Justice
Chairperson
CERTIFICATION
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
* Additional member per Special Order No. 658.
** Additional member per Special Order No. 635.
*** Additional member per Special Order No. 664.
[1] NLRC Records, Vol. I, p. 9.
[2]
[3]
[4]
[5]
[6]
[7]
[8] Vide Position Paper for Respondent, id. at 42-52.
[9]
[10] NLRC Records, Vol. II, pp. 614-623.
[11]
[12] CA rollo, pp. 2-21.
[13]
[14]
[15] Vide Petition, rollo, pp. 10-42.
[16] Vide Respondent’s Comment, id. at 194-199.
[17] Go v.
Court of Appeals, G.R. No. 158922,
[18] Jo v.
National Labor Relations Commission, G.R. No. 121605,
[19] Petron
Corporation v. National Labor Relations Commission, G.R. No. 154532,
[20] Times Transportation Co., Inc. v. National
Labor Relations Commission, G.R. Nos. 148500-01,
[21] G.R.
No. 158707,
[22] Mabeza
v. National Labor Relations Commission, G.R. No. 118506,
[23] Ibid.
[24] Ibid.
[25]
[26] Vide rollo, pp. 181-183.
[27] Vide
Panday v. National Labor Relations Commission, G.R. No. 67664,
[28] Vide Equitable Banking Corporation v. National Labor Relations Commission,
G.R. No. 102467,
[29] Garcia
v. National Labor Relations Commission, G.R. No. 113774,
[30] Supra note 2.
[31] Union Motor Corporation v. National Labor Relations Commission, G.R. No. 159738, December 9, 2004, 445 SCRA 683, 694.
[32] Philippine Aeolus Automotive United Corporation v. National Labor Relations Commission, 387 Phil. 250, 263 (2000).
[33] Genuino Ice Co., Inc. v. Magpantay, G.R. No. 147790, June 27, 2006, 493 SCRA 195, 205-206.
[34] Vide NLRC Records, Vol. I, p. 39.
[35] G.R. No. 153510,
[36] G.R. No. 166208,
[37] NLRC Records, Vol. I, p. 64.
[38] National Labor Relations Commission v.
Salgarino, G.R. No. 164376, July 31, 2006, 497 SCRA 361, 383.