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MARIBAGO BLUEWATER BEACH RESORT, INC. Petitioner, - versus - NITO DUAL, Respondent. |
G.R. No. 180660
Present: CORONA,
C. J., Chairperson, BRION,* ABAD, *** and PEREZ,
JJ. Promulgated: July 20, 2010 |
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PEREZ, J.:
Before
this Court is the petition for review on certiorari
under Rule 45 of the Rules of Court assailing the Decision[1]
dated 7 March 2007 and Resolution[2]
dated 30 July 2007 of the Court of Appeals in CA-G.R. SP No. 02062. The Decision ordered petitioner Maribago
Bluewater Beach Resort, Inc. (Maribago for brevity) to pay respondent Nito Dual
(Dual for brevity) full backwages and separation pay for his illegal dismissal. It is a reversal of the National Labor
Relations Commission (NLRC for brevity) decision vacating the decision of the
Labor Arbiter.
The undisputed facts of the case are
as follows:
Petitioner Maribago is a corporation
operating a resort hotel and restaurant in Barangay Maribago,
On 9 January 2005, around 6:30 p.m., a group
of Japanese guests and their companions dined at Allegro.[5] Captain waiter Alvin Hiyas (Hiyas for
brevity) took their dinner orders comprising of six (6) sets of lamb and six (6)
sets of fish. As per company procedure, Hiyas
forwarded one copy of the order slip to the kitchen and another copy to
respondent.[6] Pursuant
to the order slip, fourteen (14) sets of dinner were prepared by the chef. Hiyas and waiter Genaro Mission, Jr. (
(total of 14 sets of dinner).
After dinner, at around 9:00 p.m.,
the guests asked for their bill. Since
Hiyas was attending to other guests, he gave a signal to
The receipt printed at P3,036.00
was remitted by cashier Dual corresponding to six (6) sets of dinner. The receipt reads:
x x x x
NITO
1 3 SET LAMB 1,560.00
1 3 SET FISH 1,200.00
10% Service
Charge 276.00
NET TOTAL 3,036.00
CASH/CHEQUE
TENDER 3,036.00
CHANGE 0.00
x
x x x [9]
In view of the discrepancy between
the order slip and the receipt issued, petitioner Maribago, through its Human
Resource Development (HRD) manager, issued memoranda, all dated 12 January
2005, requiring respondent Dual, Alvin Hiyas, Ernesto Avenido and Basilio
Alcoseba to explain why they should not be penalized for violating House Rule
4.1 (dishonesty in any nature). [10]
On 14 January 2005, the concerned
employees were requested to attend a clarificatory hearing to be conducted on
15 January 2005. The hearing was
attended by respondent Dual, Human Resource Manager Ignacio Hermias, Jr., Chief
Security Officer Roland Cubillan, Captain Waiter Hiyas, Chef Arman, Bartender
Avenido, Room Service Waiter Alcoseba, Butcher Ryan Alegrado, John Marollana, and
union officials. This was followed by
another clarificatory hearing conducted on 16 January 2005. It was in the 16 January 2005 hearing that
waiter
During the clarificatory hearing,
butcher Alegrado testified that waiter Alcoseba went to the butchery looking
for the order slip for table no. 113. At
around 9:45 p.m., waiter Alcoseba caused the alteration of the order slip to
reflect that six (6) orders were cancelled.
Alegrado allegedly asked Alcoseba if the cook was already aware of the
cancellation, to which the latter answered “oo,
kahibaw na” (yes, he is already aware).
In his written explanation, Alcoseba
stated that he was not privy to the cancellation of orders since he was busy
attending to his room service duty. He
claims that he saw the cancelled food orders at the waiter’s station but
insists that he did not have any part in the alteration of the order slip. During the clarificatory hearing, however, he
admitted that he altered the order slip by cancelling six (6) set dinners.
After the investigation, respondent Dual
was found guilty of dishonesty for his fabricated statements and for asking one
of the waiters (
CASE FOR RESPONDENT
Respondent Dual confirms that the
orders were for six (6) sets of lamb dinner and six (6) sets of fish
dinner. He, however, alleges that four (4)
sets were cancelled and two (2) sets were given to the guides for free. He was able to confirm the cancellation with
Alcoseba and Hiyas. Hence, he received
the payment for the six (6) sets only.[12]
He avers that when he noticed the
alteration in the order slip, he verified this with
Respondent argues that when
He alleges that
CASE FOR THE PETITIONER
Petitioner Maribago submits that the
transaction receipt handed to
It
was discovered later that only P3,036.00 was entered by Dual in the cash
register. The rest of the payment was
missing. The original transaction
receipt for P10,100.00 was likewise missing and in its place, only a
transaction receipt for P3.036.00 was registered. Upon verification, it was also found out that
the order slip was tampered by Alcoseba to make it appear that only six (6) set
dinners were ordered.
According
to petitioner, on 14 January 2005, Dual and Alcoseba tried to convince
RULING OF THE LABOR ARBITER/NLRC/CA
On 3 February 2005, Dual filed a
complaint[17] for unfair labor
practice, illegal dismissal, non-payment of 13th month and
separation pay, and damages before the NLRC, Regional Arbitration Branch No.
VII,
The Labor Arbiter found that
respondent’s termination was without valid cause and ruled that respondent is
entitled to separation pay, to wit:
WHEREFORE,
VIEWED FROM THE FOREGOING, judgment
is hereby rendered declaring the absence of valid cause in the termination of
complainant from the service.
Complainant is thus, entitled to reinstatement but without backwages
considering that respondents are in good faith.
However, since reinstatement is no longer feasible, respondents MARIBAGO BLUE WATER BEACH RESORT/ARCADIO
ALEGRADO are hereby ordered to pay
jointly and severally, complainant NITO
DUAL the total amount of THIRTY-FIVE
THOUSAND PESOS (P35,000.00), Philippine currency, representing
Separation Pay, within ten (10) days from receipt hereof, through the Cashier
of this Arbitration Branch.
Other claims are DISMISSED
for lack of merit.[18]
The NLRC set aside the Labor
Arbiter’s decision and dismissed the complaint, to wit:
WHEREFORE, premises considered, the decision of the Labor
Arbiter dated
The NLRC also denied respondent’s
motion for reconsideration.[20]
It ruled that complainant’s act of
depriving respondent of its lawful revenue is tantamount to fraud against the
company which warrants dismissal from the service.[21] Falsification of commercial documents as a
means to malverse company funds constitutes fraud against the company.[22]
The Court of Appeals reversed the
decision and resolution of the NLRC.
Finding no sufficient valid cause to justify respondent’s dismissal, the
Court of Appeals ordered petitioner to pay respondent full backwages and
separation pay, as follows:
WHEREFORE, the instant petition is GRANTED. The Decision, dated
The Court of Appeals denied
petitioner’s motion for reconsideration.
OUR RULING
The petition before this Court prays for
the resolution of a sole issue:
WHETHER OR NOT THE COURT OF APPEALS COMMITTED A GRAVE
AND REVERSIBLE ERROR IN REVERSING THE
NATIONAL LABOR RELATIONS COMMISSION AND DIRECTING PETITIONER TO PAY
RESPONDENT FULL BACKWAGES FROM THE TIME HE WAS ILLEGALLY DISMISSED, UP TO THE
FINALITY OF [ITS] DECISION AND SEPARATION PAY OF ONE MONTH SALARY FOR EVERY
YEAR OF SERVICE.[24]
In essence, the issue is whether the
Court of Appeals erred in ruling that respondent was illegally dismissed.
Petitioner places the crux of the
controversy on the proven tampering of the transaction receipt which happened
in respondent’s workstation. Thus,
petitioner seeks a review of the findings of the Court of Appeals for being
speculative[25] and prays that its
decision and resolution be reversed.[26] Petitioner submits that while this Court is
not a trier of facts and its jurisdiction under Rule 45 of the Rules of Court
is confined to a review of questions of law, the contradictory findings of the
NLRC and Court of Appeals provide sufficient justification for the review of
the facts.[27]
Respondent, on the other hand,
reiterates his story that the order slip was already altered when Mission gave
it to him; that he was able to confirm the cancellation of some orders from
Alcoseba and Hiyas; that the receipt he printed was based on the order slip for
six (6) sets of dinner; that Mission gave him P3,100.00 as payment and
he returned P64.00 as change.[28] Respondent also contends that a review of the
findings of fact of the Court of Appeals is not proper in a petition for review
on certiorari. The findings of the Court
of Appeals were supported by the evidence on record and consistent with the
findings of the Labor Arbiter. Hence,
the decision of the Court of Appeals is conclusive and must be accorded
finality.[29]
As a rule, a petition for review
under Rule 45[30]
of the Rules of Court must raise only questions of law. However, the rule has exceptions such as when
the findings of the Labor Arbiter, NLRC and Court of Appeals vary,[31]
as in this case.
After a full review of the case, we
are constrained to reverse the Court of Appeals.
The law requires that an employer
shall not terminate the services of an employee except for a just or authorized
cause. Otherwise, an employee unjustly
dismissed from work is entitled to reinstatement and full backwages.[32] The law also requires the employer to observe
due process in termination cases.[33] In Agabon
v. National Labor Relations Commission,[34]
we ruled that violation of the employee’s statutory right to due process makes
the employer liable to pay indemnity in the form of nominal damages. The law further requires that the burden of
proving the cause for termination rests with the employer.[35]
In this case, we are in agreement
that petitioner’s evidence proved that respondent is guilty of dishonesty and
of stealing money entrusted to him as cashier.
Instead of reporting P10,100.00 as payment by the guests for
their dinner, respondent cashier only reported P3,036.00 as shown by the
receipt which he admitted to have issued.
The receipt which bears his name “NITO” was printed at “22:40” (10:40
p.m.) or 1 hour and 40 minutes after the guests had left at 9:00 p.m. Two other receipts were issued for the same
amount at “22:39:55” and “22:40:01”. Moreover, respondent’s claim that he received P3,100.00
only and gave Mission P64.00 as change is not shown by the receipt that
he issued. The issued receipt does not
show that change was given. In addition,
the amount indicated in the receipt does not coincide with Dual’s contention
that only four (4) dishes were cancelled and two (2) dishes were given free of
charge. If such were the case, then the
amount charged to the guests should have been for eight (8) sets of dinner and
not six (6) sets. As established during the clarificatory
hearing, twelve (12) sets of dinner were served to guests and two (2) dinner
sets were given to the tour guides free of charge. It is clearly indicated in the altered order
slip that six (6) out of the twelve (12) sets of dinner were cancelled.
The allegation of Dual that six (6)
dinner sets were indeed cancelled as evidenced by the dishes he allegedly saw
in the utensil station is negated by the testimonies of the kitchen staff (Chef
Armand Galica, Butcher Alegrado and Dessert-in-charge John Marollano) that twelve
(12) set meals were served and consumed. These testimonies coincide with the claim of
waiters Hiyas and Mission that fourteen (14) sets of dinner were served. The serving of food eliminates the argument
of cancellation.
The alibi of cancellation has no leg
to stand on. The standard operating
procedure of Maribago dictates that in cases of cancellation, the order slip has
to be countersigned by the attending waiter (which in this case should have
been Chief Waiter Hiyas) but such was not so in this case.
The foregoing facts explain why Dual
and Alcoseba tried twice to convince
In fine, what is damning to the cause
of Dual is the receipt which he admittedly issued. The receipt was issued long after the guests
had left (9:00 p.m.) and after the alteration of the order slip (9:45 p.m.) was
done. Such fact led us to the conclusion that he
consented to and participated in the anomaly.
Respondent’s acts constitute serious
misconduct which is a just cause for termination under the law.[36] Theft committed by an employee is a valid
reason for his dismissal by the employer.
Although as a rule this Court leans over backwards to help workers and
employees continue with their employment or to mitigate the penalties imposed
on them, acts of dishonesty in the handling of company property, petitioner’s
income in this case, are a different matter.[37]
Withal, the law, in protecting the
rights of the laborers, authorizes neither oppression nor self-destruction of
the employer. While the Constitution is
committed to the policy of social justice and the protection of the working
class, it should not be supposed that every labor dispute will be automatically
decided in favor of labor. The
management also has its own rights, as such, are entitled to respect and
enforcement in the interest of simple fair play. Out of its concern for those with less
privileges in life, the Supreme Court has inclined more often than not toward
the worker and upheld his cause in his conflicts with the employer. Such favoritism, however, has not blinded the
Court to the rule that justice is in every case for the deserving, to be
dispensed in the light of the established facts and applicable law and
doctrine.[38]
Regarding the due process
requirement, petitioner had complied with it as clearly shown by the facts.
WHEREFORE, the
petition is GRANTED. The assailed Decision and Resolution dated 7 March
2007 and 30 July 2007, respectively, of the Court of Appeals in CA-G.R. SP No.
02062 are REVERSED and SET ASIDE. The complaint of respondent Nito Dual is DISMISSED.
No pronouncement as to costs.
SO ORDERED.
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JOSE |
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WE CONCUR: RENATO C.
CORONA Chief Justice Chairperson |
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ARTURO D. BRION Associate Justice |
MARIANO C. Associate Justice
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ROBERTO A. ABAD Associate Justice |
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C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII
of the Constitution, 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.
RENATO C. CORONA
Chief
Justice
* Designated as an additional member in lieu of Associate Justice Teresita J. Leonardo-De Castro per Special Order No. 856 dated 1 July 2010.
** Designated as Acting Working Chairperson in lieu of Associate Justice Presbitero J. Velasco, Jr., per Special Order No. 853 dated 1 July 2010.
*** Designated as an additional member in lieu of Associate Justice Antonio Eduardo B. Nachura per Special Order No. 869 dated 5 July 2010.
[1] Penned by Associate Justice Pampio A. Abarintos with Associate Justices Priscilla Baltazar-Padilla and Stephen C. Cruz, concurring. Rollo, pp. 29-37.
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21] Philippine
Airlines, Inc. v. NLRC, G.R. No. 126805, 16 March, 2000.
[22] Pepsi Cola Bottling Company of the Philippines v. Guanson, G.R.
No. 81162, 19 April 1989, 172 SCRA
571.
[23] Rollo, pp 36-37.
[24]
[25]
[26]
[27]
[28]
[29]
[30] RULE 45
APPEAL TO THE SUPREME COURT
SECTION 1. Filing of petition with Supreme Court -- A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth. (see also A.M. No. 07-7-12-SC, took effect on 27 December 2007.)
[31] Suldao v. Cimech System Construction, Inc., G.R. No. 171392, 30 October 2006, 506 SCRA 256, 260.
[32] Labor Code, ART. 279.
[33] labor code, art. 277(b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. x x x x
[34] G.R. No. 158693,
[35] labor
code, ART. 277(b)
[36] Labor Code, Art. 282(a).
[37] Firestone Tire and Rubber Co. of the Phils. v. Lariosa, 232 Phil. 201, 206 (1987).
[38] Mercury Drug
Corporation v. National Labor Relations Commission, G.R. No.
75662, 15
September 1989, 177 SCRA 580,
587.