Republic of the Philippines

Supreme Court

Manila

 

THIRD DIVISION

 

SARGASSO CONSTRUCTION and DEVELOPMENT CORPORATION,

                                      Petitioner,

 

             

                - versus -

 

 

NATIONAL LABOR RELATIONS COMMISSION (4TH Division) and GORGONIO MONGCAL,

                                      Respondents.

   

G.R. No. 164118

 

Present:

 

CORONA, J., Chairperson,            

VELASCO, JR.,

nachura,

PERALTA, and

MENDOZA, JJ.

 

Promulgated:

                February 9, 2010

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -  - - - - x

 

 

D E C I S I O N

 

PERALTA, J.:

 

         This resolves the Petition for Review on Certiorari under Rule 45 of the 1997 Rules of  Court, praying that the Decision[1] of the Court of Appeals (CA) dated January 27, 2004 dismissing petitioner's petition for certiorari, and the CA Resolution[2] dated May 28, 2004, denying petitioner's motion for reconsideration, be reversed and set aside.

 

         The undisputed facts, as accurately narrated by the Labor Arbiter, are as follows.

         x   x   x   complainant [herein respondent Mongcal] alleged that on May 7, 1993, he was employed as a payloader operator by the respondent company; that his latest assignment was in La Castellana, Negros Occidental for the period from March to June 1995 in connection with the respondent's [herein petitioner] road construction project at La Castellana; that as payloader operator, he was required to be ready at any time to load dump trucks as so requested by truck drivers even at early hours of the morning; that he was paid a monthly salary of not less than P3,900.00 for working seven (7) days a week including Saturdays, Sundays and holidays.

 

            That on June 29, 1995 at around 2:30 o'clock in the morning, a dump truck driver of the respondent company for truck No. 25, requested complainant to load his dump truck with construction materials at the crusher site; that fully aware of the policy of the company allowing dump truck drivers to start hauling materials even at early hours of the morning and considering that truck drivers were required by the company to haul a quota of the number of truck loads of aggregates to be delivered to the construction site everyday as per instruction given to them, complainant willingly obliged to do his job; that it was later on discovered that said Aldrin Rasote had diverted the delivery of said materials loaded to another person; that as a result of this incident, complainant was dismissed from his job effective 30 June 1995. Complainant denies having a hand nor was he involved in the act committed by truck driver Aldrin Rasote.

 

             Complainant alleged that the respondent corporation filed a criminal complaint for theft against him six (6) months after 29 June 1995, the date of the alleged commission of the crime charged and only after coming to know that he had filed a labor case against the company with this office.

 

            Complainant further alleged that his dismissal from work was effected without any valid ground and violative of the rules on due process; that he was not informed of the reasons for his termination from the service nor was he given an opportunity to explain his side, and hence, he was deprived of his means of livelihood without due process of law.  Hence, he prays for reinstatement, backwages, and separation pay if reinstatement is no longer feasible.

 

            Complainant also claims for moral and exemplary damages for having been dismissed by respondent without cause and in order to harass and to discourage him from pursuing his case against the respondent, he was falsely charged of the crime of theft; that  these are all indications of bad faith and this, having been done in a wanton, oppressive or malevolent manner, complainant claims that he should be awarded moral and exemplary damages in the amount of P100,000.00 an P50,000.00, respectively.

 

            On the other hand, in their memorandum, the respondents aver that complainant was validly dismissed from his job based on loss of confidence due to commission of offense constituting act of dishonesty and flagrant violation of respondent's policy.

 

            Respondents aver that complainant was employed as a contract/project employee on 18 April 1995 and later as payloader operator at its crusher site at Sitio Lapak, La Castellana, Negros Occidental; that on 29 June 1995, or two (2) months and eleven (11) days after complainant was hired, he was caught together with another respondent's employee, Aldrin Rasote, a dump truck driver, stealing crushed aggregate belonging to respondent company; that complainant operated his payloader on the unholy hour of 2:00  o'clock in the early morning and loaded the crushed aggregate unto the dump truck; that this act of loading crushed aggregates during this particular date and time was unauthorized, as there was no memorandum nor instruction from the management for complainant to perform his job on that particular day.[3]

        

 

The Labor Arbiter ruled in favor of petitioner by dismissing the complaint but ordered petitioner to pay herein private respondent P1,000.00 for failure to observe due process requirements of law.  On appeal, the National Labor Relations Commission (NLRC) overturned the Labor Arbiter's ruling and issued a Decision the dispositive portion of which reads as follows:

 

WHEREFORE, premises considered, judgment is hereby rendered setting aside the appealed decision and another one entered ordering respondent Sargasso Construction and Development Corporation to pay the complainant Gorgonio Mongcal as follows:

 

1.                  SEPARATION PAY                                                 P 40,560.00

 

2.                  BACKWAGES                                                            164,450.00

 

                                                           TOTAL                       P205,010.00

 

            The other claims and the case against respondent Mel J. Go and Felipe S. Penecilla are dismissed for lack of merit.

 

            SO ORDERED.[4]

 

The case was then elevated to the CA via a petition for certiorari and on January 27, 2004, the CA promulgated the assailed Decision which disposed thus:

 

WHEREFORE, premises considered, the instant petition is DISMISSED.  The assailed Decision and Resolution of the National Labor Relations Commission, Fourth Division, Cebu City, dated November 29, 1999 and November 22, 2001, respectively, are hereby AFFIRMED with MODIFICATION:  the separation pay should be computed from the date of private respondent's employment until the finality of this decision while his backwages should be computed from the time of his alleged dismissal up to the finality of this decision, and in both cases, using his monthly salary of P3,380.00 as basis of computation.

 

SO ORDERED.[5]

 

Petitioner moved for reconsideration but the same was denied per CA Resolution dated May 28, 2004.  Hence, this petition where it is alleged that:

 

I.

 

THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR IN DISREGARDING THE FINDINGS OF THE LABOR ARBITER WHICH ARE SUPPORTED BY SUBSTANTIAL EVIDENCE.

 

II.

 

THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR IN HOLDING THAT PRIVATE RESPONDENT WAS ILLEGALLY DISMISSED.

 

III.

 

THE HONORABLE COURT OF APPEALS COMMITTED GRAVE ERROR IN SUSTAINING THE AWARD OF SEPARATION PAY AND BACKWAGES TO PRIVATE RESPONDENT.[6]          

 

 

The Court finds the petition unmeritorious.

 

Petitioner's assignment of errors boils down to the sole issue of whether the CA correctly upheld the NLRC ruling that private respondent Mongcal was illegally dismissed by petitioner because there was insufficient proof that the latter conspired with one Aldrin Rasote to steal construction materials from petitioner.

 

The Labor Arbiter found that on June 29, 1995, at around 2:30 o'clock in the morning, private respondent loaded the dump truck driven by one Aldrin Rasote with aggregates despite the lack of a trip ticket or authorization, and said aggregates were eventually delivered by Rasote to other persons.  Such factual findings of the Labor Arbiter were not overturned by the NLRC or the CA, but the two higher courts interpreted the very same evidence differently.  The NLRC, affirmed by the CA, arrived at the conclusion that such fact did not point to a conspiracy between the dump truck driver and private respondent Mongcal, a payload operator, which would justify the latter's dismissal.   

 

The long-standing rule is that the existence of a conspiracy must be proved by clear, direct and convincing evidence.[7]   A perusal of the record shows that the NLRC and the CA correctly ruled that petitioner's theory of conspiracy had not been sufficiently established. 

 

In Fernandez v. National Labor Relations Commission,[8] The Court expounded on the degree of evidence required to establish the existence of a conspiracy in this wise:

 

While it is true that in conspiracy, direct proof is not essential, it must however, be shown that it exists as clearly as the commission of the offense itself.  There must at least be adequate proof that the malefactors had come to an agreement concerning the commission of a felony and decided to commit it.

x x x                          

x  x  x  For conspiracy to exist, it is essential that there must be conscious design to commit an offense.  Conspiracy is not the product of negligence but of intentionality on the part of the cohorts.[9] (Emphasis supplied)

 

 

From the foregoing, it is quite clear that the evidence presented in this case did not reach the level required to find respondent Mongcal guilty of conspiring to commit theft of company property.  Indeed, respondent Mongcal loaded the dump truck with aggregates at 2:30 o'clock in the morning despite the lack of a trip ticket, but petitioner utterly failed to rebut Mongcal's explanation that it was not unusual for them to perform such tasks even at an early hour, because truck drivers tried to reach the  delivery quotas that petitioner had set.  This was never denied or rebutted by petitioner in any of its pleadings.  Petitioner merely harped on the fact that no trip ticket was issued for that particular delivery.  However, even if petitioner established that it was company policy to have trip tickets for every delivery of aggregates, it failed to prove that it was the payload operators like respondent Mongcal who had the duty of requiring dump truck drivers to show their trip tickets before the trucks could be loaded with aggregates.  Petitioner failed to prove that respondent Mongcal was involved at all or agreed with the scheme to steal aggregates from petitioner.  There was no showing whatsoever, that respondent Mongcal had any knowledge that Aldrin Rasote had the intention of stealing company property.

 

Verily, there was a dearth of evidence directly linking respondent Mongcal to the commission of the crime of theft, as his mere act of loading the dump truck with aggregates did not show that he knew of Rasote's plan to deliver the load to a place other than petitioner's construction site.  The only conclusion, therefore, is that petitioner illegally dismissed respondent Mongcal.

 

Under Article 279 of the Labor Code, an illegally dismissed employee “shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.”  In addition to full backwages, the Court has also repeatedly ruled that in cases where reinstatement is no longer feasible due to strained relations, then separation pay may be awarded instead of reinstatement.[10]   In Mt. Carmel College v. Resuena,[11] the Court reiterated that the separation pay, as an alternative to reinstatement, should be equivalent to one (1) month salary for every year of service.[12]

 

         IN VIEW OF THE FOREGOING, the instant petition is dismissed.  The Decision and Resolution of the Court of Appeals dated January 27, 2004 and May 28, 2004, respectively, in CA G.R. SP No. 70991 are AFFIRMED.  Petitioner is ORDERED to pay respondent Gorgonio Mongcal (a) separation pay in the amount equivalent to one (1) month pay for every year of service; and (b) backwages, computed from the time compensation of respondent Mongcal was withheld from him when he was unjustly terminated, up to the time of payment thereof.  For this purpose, the records of this case are hereby REMANDED to the Labor Arbiter for proper computation of said awards.  Costs against petitioner.

 

SO ORDERED.

 

 

 

                                               DIOSDADO M. PERALTA

                                                       Associate Justice

 

 

 

 

WE CONCUR:

 

 

 

 

RENATO C. CORONA

Associate Justice

Chairperson

 

 

 

 

 

 

 

PRESBITERO J. VELASCO, JR.              ANTONIO EDUARDO B. NACHURA

              Associate Justice                                     Associate Justice

 

 

 

JOSE CATRAL MENDOZA

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.

 

 

 

RENATO C. CORONA

   Associate Justice

    Third Division, 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

 

 

 

 

 


[1]              Penned by Associate Justice Perlita J. Tria-Tirona, with Associate Justices Portia Aliño-Hormachuelos and  Rosalinda Asuncion-Vicente, concurring; CA rollo, pp. 186-192.

[2]              Id. at 219.

[3]              Supra note 1, at 50-53.

[4]              Id. at 27-28.

[5]              Supra note 1, at 191.

[6]              Rollo,  p. 32.

[7]                      NFD Int'l. Manning Agents v. NLRC,  G.R. No. 165389, October 17, 2008, 569 SCRA 414, 423-425; Premiere Development Bank v. Mantal, G.R. No. 167716, March 23, 2006, 485 SCRA 234, 240.

[8]              G.R. No. 108444, November 6, 1997, 281 SCRA 423.

[9]              Id. at 430, 434.

[10]             Nissan North Edsa Balintawak, Queson City v. Serrano, Jr., G.R. No. 162538, June 4, 2009, 588 SCRA 238, 247.

[11]             G.R. No. 173076, October 10, 2007, 535 SCRA 518.

[12]             Id. at 541.