Republic of the
Supreme Court
THIRD DIVISION
|
TAMSONS ENTERPRISES, INC., NELSON
LEE, LILIBETH ONG and JOHNSON NG, Petitioners, - versus - COURT OF APPEALS and ROSEMARIE L. SY, Respondents. |
|
G.R. No. 192881 Present: VELASCO, JR., J., Chairperson, PERALTA, ABAD, PEREZ,* and MENDOZA, JJ. Promulgated: November 16, 2011 |
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D E C I S I O N
MENDOZA, J.:
This is a
petition for review on certiorari under Rule 45 of the 1997 Rules of Civil
Procedure assailing the February 26, 2010 Decision[1]
and the July 9, 2010 Resolution[2]
of the Court of Appeals (CA) in CA-G.R. SP No. 105845 which reversed the
April 29, 2003 Decision[3]
of the National Labor Relations Commission (NLRC) and reinstated the September
28, 2007 Decision[4]
of the Executive Labor Arbiter, Herminio Suelo (ELA), in NLRC NCR Case
No. 00-03-0236607, finding petitioners liable for illegal dismissal and payment
of money claims.
This
case stemmed from a complaint for illegal dismissal with money claims filed by
respondent Rosemarie L. Sy (Sy) before the Arbitration Branch, National
Capital Region, NLRC, against petitioners Tamsons Enterprises, Inc. (Tamsons),
Nelson Lee (Lee), the company President; and Lilibeth Ong (Ong) and
Johnson Ng (Ng), her co-employees.
From
the records, it appears that on
On
During
her pre-employment interview, Lee had nice comments about her good work
experience and educational background. She
was assured of a long-term employment with benefits. Throughout her employment, she earnestly
performed her duties, had a perfect attendance record, worked even during
brownouts and typhoons, and would often work overtime just to finish her work.
Sy claimed that the remarks of her
superiors about her alleged inefficiency were ill-motivated and made without any
basis. She had been rendering services
for almost six (6) months before she was arbitrarily and summarily
dismissed. Her dismissal was highly
suspicious as it took place barely four (4) days prior to the completion of her
six-month probationary period. The
petitioners did not show her any evaluation or appraisal report regarding her
alleged inefficient performance. As she was terminated without an evaluation on
her performance, she was deprived of the opportunity to be regularly part of
the company and to be entitled to the benefits and privileges of a regular
employee. Worse, she was deprived of her
only means of livelihood.
For
their part, the petitioners asserted that before Sy was hired, she was apprised
that she was being hired as a probationary employee for six months from
The
foregoing circumstances prompted Sy to file a case for illegal dismissal with
claims for back wages, unpaid salary, service incentive leave, overtime pay, 13th
month pay, and moral and exemplary damages, and attorneys fees.
After the submission of the parties
respective pleadings, the ELA rendered a decision in favor of Sy, stating that
a termination, notwithstanding the probationary status, must be for a just
cause. As there was an absence of evidence
showing just cause and due process, he found Sys termination to be arbitrary
and illegal. The dispositive portion of
the ELA decision reads:
WHEREFORE, premises considered, judgment is hereby
rendered finding respondents [herein petitioners] liable for illegal dismissal
and payment of money claims.
Accordingly,
respondents [herein petitioners] are hereby ordered to reinstate complainant to
her position without loss of seniority rights and other benefits, and to pay
the following:
1. Complainants full backwages, computed
from the time she was illegally dismissed to the date of her actual
reinstatement, which as of date amounts to ₱185,380.00;
2. Prorated 13th month pay in the
sum of ₱4,166.00;
3. Salaries for period of
4. 10% of the total award as attorneys fee.
The reinstatement aspect of this Decision
is immediately executory pursuant to Article 223 of the Labor Code, as
amended. Respondents [herein
petitioners] are therefore directed to submit a report of compliance thereof
before this Office within ten (10) calendar days from receipt hereof.
All other claims are hereby DISMISSED for
lack of merit.
SO ORDERED.[7]
Dissatisfied,
the petitioners appealed to the NLRC on the ground that the ELA gravely abused
his discretion in finding that Sy was illegally dismissed and in ordering her
reinstatement and payment of backwages.
On appeal, the NLRC reversed
the ELAs finding that Sy was terminated without just cause and without due
process and dismissed the case.[8]
In reversing the decision of the ELA,
the NLRC reasoned out that pursuant to Article 281 of the Labor Code, there are
two general grounds for the services of a probationary employee to be
terminated, just cause or failure to qualify as a regular employee. In effect, failure to qualify for regular
employment is in itself a just cause for termination of probationary
employment. To the NLRC, the petitioners
were in compliance with the mandate of the said provision when Sy was notified
one month in advance of the expiration of her probationary employment due to
her non-qualification for regular employment.
The motion for reconsideration having
been denied, Sy elevated her case to the CA via a petition for certiorari under
Rule 65. She imputed grave abuse of
discretion on the part of NLRC in dismissing her complaint.
On
Thus, the CA agreed with
the ELAs conclusion that the termination of Sys services was illegal as there
was no evidence that a standard of performance had been made known to her and
that she was accorded due process. The pertinent portions of the CA decision,
including the dispositive portion, read:
Public respondent NLRC committed grave
abuse of discretion in reversing the findings of the Labor Arbiter and ruling
that private respondents [herein petitioners] have the right to terminate the
services of petitioner [herein respondent] because they found her unfit for
regular employment even if there was no evidence to show the instances which
made her unfit. Moreover, the NLRC erred
when it found that there was a compliance with procedural due process when
petitioners [respondents] services were terminated.
WHEREFORE, the petition is GRANTED.
The decision of the Labor Arbiter dated
SO ORDERED.[10]
The
petitioners sought reconsideration of the said decision. The CA, however,
denied the motion in its Resolution dated
Hence, the petitioners
interpose the present petition before this Court anchored on the following
GROUNDS
(1)
THE COURT OF APPEALS ERRED IN UPHOLDING THE DECISION OF THE LABOR
ARBITER AND AWARDING BACK WAGES AND OTHER MONETARY CLAIMS IN FAVOR OF THE
PRIVATE RESPONDENT.
(2)
THE COURT OF APPEALS ERRED IN HOLDING THAT HEREIN PRIVATE RESPONDENT
BECAME A REGULAR EMPLOYEE EFFECTIVE DAY ONE OF HER EMPLOYMENT WITH PETITIONER.
(3)
THE COURT OF APPEALS GRAVELY ERRED IN DISREGARDING THE PROBATIONARY
PERIOD OF EMPLOYMENT OF PRIVATE RESPONDENT ENDING [ON]
The core issue to be resolved is
whether the termination of Sy, a probationary employee, was valid or not.
The
petitioners pray for the reversal of the CA decision arguing that Sy was a
probationary employee with a limited tenure of six months subject to
regularization conditioned on her satisfactory performance. They insist that they substantially complied
with the requirements of the law having apprised Sy of her status as
probationary employee. The standard,
though not written, was clear that her continued employment would depend on her
over-all performance of the assigned tasks, and that the same was made known to
her since day one of her employment. According
to the petitioners, reasonable standard of employment does not require written
evaluation of Sys function. It is
enough that she was informed of her duties and that her performance was later
rated below satisfactory by the Management.
Citing Alcira
v. NLRC[12]
and Colegio San Agustin v. NLRC,[13]
the petitioners further argue that Sys constitutional protection to security
of tenure ended on the last day of her probationary tenure or on
Sy counters that she was
illegally terminated from service and insists that the petitioners cannot
invoke her failure to qualify as she was not informed of the standards or
criteria which she should have met for regular employment. Moreover, no proof was shown as to her alleged
poor work performance. She was unceremoniously terminated to prevent her from
becoming a regular employee and be entitled to the benefits as such.
The Court finds the petition devoid of merit.
The pertinent law governing the present case is Article 281 of the Labor
Code which provides as follows:
Art. 281. Probationary
employment. Probationary employment shall not exceed six 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 in 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. (Underscoring supplied)
There is probationary
employment where the employee upon his engagement is made to undergo a trial
period during which the employer determines his fitness to qualify for regular
employment based on reasonable standards made known to him at the time of
engagement.[14] The
probationary employment is intended to afford the employer an opportunity to
observe the fitness of a probationary employee while at work, and to ascertain
whether he will become an efficient and productive employee. While the employer
observes the fitness, propriety and efficiency of a probationer to ascertain
whether he is qualified for permanent employment, the probationer, on the other
hand, seeks to prove to the employer that he has the qualifications to meet the
reasonable standards for permanent employment. Thus, the word probationary, as
used to describe the period of employment, implies the purpose of the term or
period, not its length.[15]
On the basis of the aforequoted
provisions and definition, there is no dispute that Sys employment with Tamsons
on
It is settled that even if
probationary employees do not enjoy permanent status, they are accorded the
constitutional protection of security of tenure. This means they may only be
terminated for a just cause or when they otherwise fail to qualify as regular
employees in accordance with reasonable standards made known to them by the
employer at the time of their engagement.[16] Consistently,
in Mercado v. AMA
Computer College-Paranaque City, Inc.,[17] this Court clearly stressed
that:
Labor, for its part, is given the protection during the
probationary period of knowing the company standards the new hires have to meet
during the probationary period, and to be judged on the basis of these
standards, aside from the usual standards applicable to employees after they
achieve permanent status. Under the terms of the Labor Code, these standards should be made
known to the [employees] on probationary status at the start of their
probationary period,
or xxx during which the probationary standards are to be applied. Of critical
importance in invoking a failure to meet the probationary standards, is that
the [employer] should show as a matter of due
process how these standards have been applied. This is effectively the second notice
in a dismissal situation that the law requires as a due process guarantee
supporting the security of tenure provision, and is in furtherance, too, of the
basic rule in employee dismissal that the employer carries the burden of
justifying a dismissal. These rules ensure compliance with the limited security
of tenure guarantee the law extends to probationary employees.[18]
[Emphases supplied]
In this case, the justification given by the petitioners for Sys dismissal
was her alleged failure to qualify by the companys standard. Other than the general allegation that said
standards were made known to her at the time of her employment, however, no
evidence, documentary or otherwise, was presented to substantiate the same. Neither was there any performance evaluation
presented to prove that indeed hers was unsatisfactory. Thus, this Court is in full accord with the ruling
of the CA when it wrote that:
Private respondents were remiss in showing that petitioner failed to
qualify as a regular employee. Except
for their allegations that she was apprised of her status as probationary and
that she would be accorded regular status once she meets their standards, no
evidence was presented of these standards and that petitioner had been apprised
of them at the time she was hired as a probationary employee. Neither was it shown that petitioner failed
to meet such standards.
Petitioner should have been informed as to the basis of private
respondents decision not to extend her regular or permanent employment. This case is bereft of any proof like an
evaluation or assessment report which would support private respondents claim
that she failed to comply with the standards in order to become a regular
employee.
One of the conditions before an employer can terminate a probationary
employee is dissatisfaction on the part of the employer which must be real and
in good faith, not feigned so as to circumvent the contract or the law. In the case at bar, absent any proof showing
that the work performance of petitioner was unsatisfactory, We cannot conclude
that petitioner failed to meet the standards of performance set by private
respondents. This absence of proof, in
fact, leads Us to infer that their dissatisfaction with her work performance
was contrived so as not to regularize her employment.[19]
For failure of the petitioners to support their claim of unsatisfactory
performance by Sy, this Court shares the view of the CA that Sys employment
was unjustly terminated to prevent her from acquiring a regular status in
circumvention of the law on security of tenure.
As the Court previously stated, this is a common and convenient practice of unscrupulous
employers to circumvent the law on security of tenure. Security of tenure,
which is a right of paramount value guaranteed by the Constitution, should not
be denied to the workers by such a stratagem. The Court can not permit such a
subterfuge, if it is to be true to the law and social justice.[20]
In its attempt to justify
Sys dismissal, the petitioners relied heavily on the case of Alcira v. NLRC[21]
where the Court stressed that the constitutional protection ends on the
expiration of the probationary period when the parties are free to either renew
or terminate their contract of employment.
Indeed, the Court
recognizes the employers power to terminate as an exercise of management prerogative. The petitioners, however, must be reminded
that such right is not without limitations.
In this connection, it is well to quote the ruling of the Court in
the case of Dusit
Hotel Nikko v. Gatbonton,
[22] where it was written:
As Article 281 clearly states, a
probationary employee can be legally terminated either: (1) for a just cause;
or (2) when the employee 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 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; and 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]
[Emphases supplied]
Here, the petitioners
failed to convey to Sy the standards upon which she should measure up to be
considered for regularization and how the standards had been applied in her
case. As correctly pointed out by Sy, the dissatisfaction on the part of the petitioners was at best
self-serving and dubious as they could not present concrete and competent
evidence establishing her alleged incompetence.
Failure on the part of the petitioners to discharge the burden of proof is
indicative that the dismissal was not justified.
The law is clear that in all cases of probationary
employment, the employer shall make known to the employee the standards under
which he will qualify as a regular employee at the time of his engagement.
Where no standards are made known to the employee at that time, he shall be
deemed a regular employee.[24] The
standards under which she would qualify as a regular employee not having been
communicated to her at the start of her probationary period, Sy qualified as a
regular employee. As held by this Court
in the very recent case of Hacienda Primera Development Corporation v.
Villegas,:[25]
In this case, petitioner Hacienda fails
to specify the reasonable standards by which respondents alleged poor
performance was evaluated, much less to prove that such standards were made
known to him at the start of his employment. Thus, he is deemed to have been
hired from day one as a regular employee.
Due process dictates that an employee be apprised beforehand of the condition
of his employment and of the terms of advancement therein. [Emphasis supplied]
Even on the assumption that Sy indeed failed to meet the standards set by them and made known to
the former at the time of her engagement, still, the termination was flawed for
failure to give the required notice to Sy.
Section 2, Rule I, Book VI of the Implementing Rules provides:
Section 2. Security of tenure. (a) In cases of regular
employment, the employer shall not terminate the services of an employee except
for just or authorized causes as provided by law, and subject to the
requirements of due process.
(b)
The foregoing shall also
apply in cases of probationary employment; Provided however, that in such cases,
termination of employment due to failure of the employee to qualify in
accordance with the standards of the employer made known to the former at the
time of engagement may also be a ground for termination of employment.
xxx
(d)
In all cases of termination of employment, the following standards of
due process shall be substantially observed:
xxx
If the termination is brought about by
the completion of a contract or phase thereof, or by failure of an employee
to meet the standards of the employer in the case of probationary employment,
it shall be sufficient that a written notice is served the employee, within
a reasonable time from the effective date of termination. [Emphasis and Underscoring supplied]
In this case, the petitioners failed to comply with the requirement of a written
notice. Notably, Sy was merely verbally informed
that her employment would be terminated on
Being a regular employee whose termination was illegal, Sy is entitled to the twin relief of reinstatement
and backwages granted by the Labor Code.
Article 279 provides that an employee who is unjustly dismissed from
work shall be entitled to reinstatement without loss of seniority rights and other
privileges, to her full backwages, inclusive of allowances, and to her other
benefits or their monetary equivalent computed from the time her compensation
was withheld from her up to the time of actual reinstatement. Likewise, having been compelled to come to
court and to incur expenses to protect her rights and interests, the award of
attorneys fees is in order.[28]
WHEREFORE, the petition is DENIED.
SO ORDERED.
JOSE CATRAL
WE CONCUR:
PRESBITERO
J. VELASCO, JR.
Associate Justice
Chairperson
DIOSDADO M.
PERALTA ROBERTO A.
ABAD
Associate
Justice Associate Justice
JOSE
PORTUGAL PEREZ
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 Courts Division.
PRESBITERO
J. VELASCO, JR.
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 Chairpersons 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 Courts Division.
RENATO
C. CORONA
Chief Justice
* Designated as
additional member in lieu of Associate Justice Estela M. Perlas-Bernabe, per
Special Order No. 1152 dated
[1] Annex A of Petition, rollo, pp. 23-32. Penned by Associate Justice Pampio A. Abarintos with Associate Justice Josefina Guevara-Salonga and Associate Justice Jane Aurora C. Lantion, concurring.
[2] Annex B of Petition, id. at 35-36.
[3] Annex
Q of Petition, id. at 172.
[4] Rollo, p. 121.
[5] Annex D of Petition, id. at 43.
[6]
[7] Rollo, pp. 79-80.
[8]
[9] 500 Phil. 61 (2005).
[10] Rollo, p. 32.
[11]
[12] G.R.
No. 149859,
[13] G.R.
No. 87333,
[14] Robinsons
Galleria/Robinsons Supermarket Corporation and/or Jess Manuel v. Ranchez,
G.R. No. 177937, January 19, 2011, 640 SCRA 142, citing Omnibus Rules
Implementing the Labor Code, Book VI, Rule I, Sec. 6.
[15] Magis Young Achievers Learning Center v. Manalo, G.R. No. 178835, February 13, 2009, 579 SCRA 421, 431-432, citing International Catholic Migration Commission v. NLRC, 251 Phil. 560, 567 (1989).
[16] Alcira v. National Labor Relations Commission, G.R. No. 149859, June 9, 2004, 431 SCRA 508,
citing Agoy v. National Labor Relations Commission, 322 Phil.
636, 645 (1996).
[17]
G.R. No. 183572,
[18]
Mercado v. AMA Computer College-Paranaque City, Inc., G.R. No. 183572,
[19] Rollo, p. 30.
[20] Octaviano
v. National Labor Relations Commission, G.R. No. 88636,
[21] G.R.
No. 149859,
[22] G.R.
No. 161654,
[23]
[24]
Book VI, Rule I, Sec. 6(d) of the Implementing Rules of the Labor Code
(Department Order No. 10, Series of 1997).
[25] G.R. No. 186243,
[26] Rollo, p. 37.
[27]
[28] Fulache v. ABS-CBN Broadcasting
Corporation, G.R.
No. 183810, January 21, 2010, 610 SCRA 567, 588, citing Litonjua
Group of Campanies v. Vigan, 412 Phil. 627, 643-644 (2001).