Republic of the
Supreme Court
FIRST DIVISION
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APO CEMENT CORPORATION, |
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G.R. No. 176671 |
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Petitioner, |
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Present: |
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LEONARDO-DE CASTRO,* |
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Acting Chairperson, |
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- versus - |
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BERSAMIN, |
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VILLARAMA, JR., and |
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PERLAS-BERNABE,** JJ. |
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ZALDY E.
BAPTISMA, |
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Promulgated: |
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Respondent. |
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June
20, 2012 |
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D E C I S I O N
In labor cases, all that is required is
for the employer to show substantial evidence to justify the termination of the
employee.
This Petition
for Review on Certiorari[1]
under Rule 45 of the Rules of Court assails the Decision[2]
dated November 15, 2006 and the Resolution[3]
dated February 6, 2007 of the Court of Appeals (CA) in CA-G.R. CEB-SP No.
01220.
Factual
Antecedents
On June 16,
1998, respondent Zaldy E. Baptisma was employed by petitioner Apo Cement
Corporation, a duly registered corporation maintaining and
operating a
cement manufacturing plant in Tinaan, Naga,
Sometime in
September 2003, petitioner received information from one of its employees,
Armando Moralda (Moralda), that some of its personnel, including respondent who
was then the manager of petitioners Power Plant Department, were receiving
commissions or kickbacks from suppliers.[5]
To ascertain the veracity of the information given by Moralda, the top
management of petitioner conducted an investigation during which Jerome
Lobitaa (Lobitaa), one of petitioners accredited suppliers, doing business
under the name and style Precision Process, came forward to corroborate the
statement of Moralda.[6]
On October 10,
2003, Moralda and Lobitaa executed separate affidavits[7]
to substantiate their claims. Pertinent
portions of the affidavits read:
Moraldas Affidavit:
x x x x
3. As a Buyer/Canvasser at the Purchasing
Department enjoying the trust and confidence of Mr. Tinoco, I was privy to
several anomalous practices and transactions involving the procurement of
various supplies and services for the Company.
Among the various modus operandi employed by some people in
x x x x
e. 10% to 20% of the quoted
price usually set aside as bribe money for certain personnel. Suppliers
would often factor-in an additional 10% to 20% in their quoted price which
would be used to bribe certain
x x x x[8]
Lobitaas Affidavit:
x
x x x
8.1.
There were times when Mr. Tinoco himself talked directly to the end-user [to]
negotiate for the amount or percentage of the kickback that they would get from
me. There was one time when Mr. Tinoco
informed me that he has negotiated with Mr. Zaldy Baptisma, the Power Plant
Manager, and committed to give him a ten percent (10%) commission or kickback
for all transactions which would be awarded to me. Upon the award of the contract amounting to
approximately Two Hundred Thousand Pesos (P200,000.00) and the remittance by Apo of the
payment, I met with Mr. Baptisma outside
the
x
x x x[9]
Having been
implicated in the irregularities, respondent, on November 3, 2003, received a
Show Cause Letter with Notice of Preventive Suspension[10]
from Plant Director Ariel Mendoza.[11]
On November 5,
2003, respondent submitted his written explanation[12]
denying the accusations hurled against him.[13]
To further
afford respondent ample opportunity to defend himself, petitioner conducted a
series of administrative investigation hearings during which respondent was
able to face his accusers.[14]
This time, Lobitaa gave a more detailed narration of the events that
transpired in August and September 2002.
He said:
x x x x
(a)
That [on] two
(2) separate occasions, I personally handed over to Mr. Baptisma some amounts
representing the latters ten [percent] (10%) commission and/or kickbacks.
The first instance took place sometime around the first or second week of
August 2002, where I met with Mr. Baptisma at the Papas Grill, a native
restaurant located in P37,701.81 (cash), which was 10% of the aggregate contract price
of P377,018.19 for three (3) purchase orders I got from Apo, i.e. P.O.
ON-00028642 (P159,090.91), ON-000-28630 (P168,181.82), and
ON-00030162 (P49,745.46). Mr.
Baptisma readily received the amount from me.
(b)
That the
second instance took place sometime in the second week of September 2002. I again met with Mr. Baptisma and his two (2)
subordinates, Mr. Reno Cedeo and Bobby Banzon, at the same Papas Grill
Restaurant. After our dinner, I personally handed over to Mr. Baptisma the
amount of P15,909.09, which was 10% of the total contract price of P159,090.91
under P.O. No. ON-00030067 dated 8 June 2002 which I got from
(c)
That I
submitted to the Investigating Committee copies of the Purchase Orders
corresponding to the transactions I had with
x x x x
(d)
That I
maintain a notebook where I could enter the details of my dealings with P53,610.00 representing the commission[s] and/or
kickbacks that I gave to the Power Plant Boys, in connection with the transactions
I had with
x x x x[15]
For his part,
respondent presented his co-employees Bobby Banzon (Banzon), Reno Cedeo (Cedeo)
and Christopher Navarro.[16]
Banzon testified that sometime in
December 2002, he, along with respondent and other
On March 22,
2004, respondent received the Notice of Termination[19]
dated March 19, 2004 informing him of his dismissal from employment effective
immediately on the ground of loss of trust and confidence.[20]
At the time of his termination, respondent was a Power Plant Manager earning a
monthly salary of P71,100.00.[21]
On March 31,
2004, respondent filed with the Regional Arbitration Branch VII of the National
Labor Relations Commission (NLRC) in
Ruling of the
Labor Arbiter
On January 5,
2005, Labor Arbiter Jose G. Gutierrez rendered judgment in favor of
respondent. The Labor Arbiter opined
that since respondent was not involved in the canvassing and purchasing of
supplies, he could not have entered into any irregular arrangement with
suppliers.[23]
The Labor Arbiter likewise considered the testimony of Moralda as hearsay and
the testimony of Lobitaa as self-serving and doubtful.[24]
Hence, he ruled that there was no justifiable ground to support the validity
of [respondents] dismissal x x x.[25]
The decretal portion of his Decision[26]
reads:
WHEREFORE, the foregoing premises considered, judgment is
hereby rendered declaring the [respondent] illegally dismissed from his
employment. [Petitioner and Atty. Eala] are therefore, directed to reinstate
the complainant to his former position without loss of seniority rights and
other privileges. Further, [petitioner
and Atty. Eala] are directed to jointly and severally pay [respondent] the
following:
I.
Backwages ------- P668,184.60
II.
13th
Month Pay ------- 71,200.00
III.
Unpaid
Salaries ------- 16,450.00
P755,834.60
plus P79,141.53 or ten (10%) percent
attorneys fees or a total aggregate amount of PESOS: EIGHT HUNDRED THIRTY ONE THOUSAND FOUR HUNDRED EIGHTEEN &
06/100 (P831,418.06). The
amount awarded to [respondent] however should be recomputed when this decision
becomes final and executory.
[Petitioners] counter-claim is dismissed for lack
of merit.
SO
ORDERED.[27]
Aggrieved, petitioner filed an
appeal with the NLRC,[28]
docketed as NLRC Case No. V-000248-2005.
Respondent, on the other hand, filed
a Motion for Issuance of a Writ of Execution.[29]
On February 21,
2005, the Labor Arbiter ordered petitioner to reinstate respondent as Power
Plant Manager of its plant at Tinaan, Naga,
Ruling of the
National Labor Relations Commission
On July 11,
2005, the NLRC reversed the ruling of the Labor Arbiter. It ruled that respondents personal and
direct involvement in the irregularities complained of renders him unworthy of
the trust and confidence demanded [of] his position.[32]
The fallo
of the Decision[33]
reads:
WHEREFORE, premises considered the
decision of the Labor Arbiter is hereby SET
ASIDE and VACATED and a new one
entered dismissing the complaint.
SO ORDERED.[34]
Respondent moved
for reconsideration but his motion was denied by the NLRC in a Resolution[35]
dated August 25, 2005. Thus, respondent
elevated the matter to the CA.
Ruling of the
Court of Appeals
On November 15,
2006, the CA reinstated the Decision of the Labor Arbiter. It ruled that petitioner failed to prove the
existence of a just cause to warrant the termination of respondent as the
alleged loss of trust and confidence was not based on established facts.[36]
It decreed:
IN LIGHT OF ALL THE FOREGOING, the
petition filed in this case is hereby GRANTED.
The assailed decision dated July 11, 2005 promulgated by the National Labor
Relations Commission (Fourth Division) and its subsequent resolution dated
August 25, 2005 in NLRC Case No. V-000248-2005 and NLRC INJ. Case No.
V-000001-2005 are hereby SET ASIDE. The decision dated January 5, 2005 of Labor
Arbiter Jose G. Gutierrez is hereby REINSTATED.
IT IS SO ORDERED.[37]
On
reconsideration, the CA stood pat on its finding that there was no basis for
petitioners loss of trust and confidence in respondent.[38] It,
however, modified
the dispositive portion of its Decision, in this wise:
WHEREFORE, [petitioners] Motion for Reconsideration is
hereby PARTIALLY GRANTED. Our Decision, dated November 15, 2006,
reinstating the decision of Labor Arbiter Jose G. Gutierrez, is hereby MODIFIED. The portion of the said decision directing x
x x Atty. Maria
SO ORDERED.[39]
Issues
Hence, this
petition raising the following issues:
I.
IN RULING THAT THE LOSS
OF CONFIDENCE WAS NOT GROUNDED ON ESTABLISHED FACTS, THE [CA] HAS DECIDED THE
INSTANT CASE IN A WAY NOT IN ACCORD WITH LAW AND ESTABLISHED DECISIONS OF THE
SUPREME COURT THAT NEITHER DIRECT EVIDENCE NOR PROOF BEYOND REASONABLE DOUBT IS
REQUIRED TO JUSTIFY THE DISMISSAL OF A MANAGERIAL EMPLOYEE FOR LOSS OF TRUST
AND CONFIDENCE.
II.
THE COURT OF APPEALS
FINDING THAT THERE WAS NO REASON WHY A SUPPLIER WOULD GIVE COMMISSION TO THE
RESPONDENT IS BASED ON GROSS MISAPPREHENSION OF FACTS, SPECULATIONS, SURMISES
AND GUESSWORK, WHICH WARRANTS A REVIEW
BY THE HONORABLE COURT, IN ACCORDANCE WITH THE RULING IN MEGAWORLD AND
HOLDINGS, INC. VS. HON. JUDGE BENEDICTO G. COBARDE, ET. AL. IN FACT, THE SAID FINDING OF THE [CA] IS AT VARIANCE
WITH AND CONTRADICTORY TO THE DEFINITIVE FINDING OF THE NATIONAL LABOR
RELATIONS COMMISSION THAT THE RESPONDENT WOULD EXERCISE SOME DISCRETION EITHER
TO ACCEPT OR REJECT THE ITEMS DELIVERED BY THE SUPPLIERS AND THAT IT IS
OBVIOUSLY BECAUSE OF THIS INHERENT POWER TO ACCEPT OR REJECT THAT MR. LOBITAA
HAD TO GIVE 10% KICKBACKS TO THE RESPONDENT, WHICH ALL THE MORE WARRANTS THE
EXERCISE BY THE HONORABLE COURT OF ITS POWER OF REVIEW, IN ACCORDANCE WITH THE
CASE OF DUCUSIN VS. COURT OF APPEALS.
III.
IN DISREGARDING THE
POSITIVE AND UNBIASED TESTIMONY OF JEROME LOBITAA, THE [CA] X X X DECIDED THE
INSTANT CASE IN A WAY NOT IN ACCORD WITH LAW AND SETTLED DECISIONS OF THE
SUPREME COURT THAT THE TESTIMONY OF A WITNESS WHO HAS NOT BEEN SHOWN TO HAVE
ANY ILL-MOTIVE TO FALSELY TESTIFY AGAINST ANOTHER DESERVES FULL WEIGHT AND
CREDENCE AND THAT THE AFFIRMATIVE TESTIMONY OF A WITNESS PREVAILS OVER A MERE
SELF-SERVING AND UNSUBSTANTIATED DEFENSE OF DENIAL.
IV.
THE [CA] X X X DECIDED
THE INSTANT CASE IN A WAY NOT IN ACCORD WITH LAW AND SETTLED DECISIONS OF THE
HONORABLE SUPREME COURT, WHEN IT REINSTATED THE DECISION OF THE LABOR ARBITER
DATED 5 JANUARY 2005 FINDING PETITIONER GUILTY OF ILLEGAL DISMISSAL AND HOLDING
IT LIABLE TO PAY RESPONDENT BACKWAGES, UNPAID SALARIES, PROPORTIONATE 13TH
MONTH PAY AND ATTORNEYS FEES, DESPITE THE FACT THAT:
(A)
RESPONDENTS DISMISSAL WAS VALID AND THERE WAS TOTAL
ABSENCE OF ANY FINDING OF BAD
(B)
RESPONDENT HAS BEEN PAID HIS SALARY FOR THE PERIOD MARCH
1-15, 2004, AND THEREFORE, THE AWARD OF
UNPAID SALARY HAS NO LEGAL BASIS;
(C)
RESPONDENT HAS UNPAID CASH ADVANCES AND, THEREFORE,
HE CANNOT LAWFULLY CLAIM PAYMENT OF HIS SALARY FOR THE PERIOD MARCH
16-22, 2004, AND HIS PROPORTIONATE 13TH
MONTH PAY FOR 2004;
(D)
RESPONDENT IS LIABLE TO PAY HIS CASH ADVANCES TO THE
PETITIONER UNDER THE CASH BENEFIT AGREEMENT HE HAD SIGNED;
(E)
RESPONDENT IS NOT ENTITLED TO ATTORNEYS FEES AS THE
PETITIONER DID NOT ACT IN BAD FAITH.[40]
Petitioners
Arguments
At the outset,
petitioner asserts that this petition is an exception to the rule that only questions of law may be raised
in a petition under Rule 45 of the Rules of Court.[41] It submits that a factual review of the
instant case is necessary because the factual findings of the NLRC and the CA
are contradictory.[42]
Petitioner also
imputes error on the CA for holding that the loss of confidence was not
grounded on established facts.[43]
It points out that although respondent was not tasked to canvass, award, and
approve the purchase orders for company supplies and equipment, he,
nevertheless, had some authority to reject the delivery and demand replacement.[44]
Petitioner likewise denies any inconsistencies in the affidavits of Lobitaa,[45]
and claims that in the absence of any ill-motive on the part of Lobitaa to
falsely accuse respondent of the offense, Lobitaas testimony should prevail
over the bare denials of respondent and his witnesses.[46]
Respondents
Arguments
Respondent prays for the dismissal
of the petition on the ground that factual issues are not allowed in a petition
filed under Rule 45 of the Rules of Court.[47]
In any case, he insists that he was terminated without cause as the affidavits
of Lobitaa do not merit any weight and consideration.[48] He maintains that the affidavits of Lobitaa
are full of fabrications and inconsistencies.[49] Thus, he implores that the ruling of the
Labor Arbiter, as affirmed by the CA, be upheld.[50]
The petition has
merit.
The rule that
only questions of law may be raised in a petition brought under Rule 45 of the
Rules of Court is not without exception. Factual review may warrant when the
factual findings of the NLRC are contrary to those of the Labor Arbiter and the
CA;[51]
or when the CAs findings of fact, supposedly premised on the absence of
evidence, are contradicted by evidence on record.[52]
In this case, the Labor Arbiter and the CA found no just cause to warrant the
dismissal of respondent. The NLRC,
however, found otherwise. A factual review is, therefore, in order.
To validly dismiss an employee on
the ground of loss of trust and confidence under Article 282 (c)[53]
of the Labor Code of the Philippines, the following guidelines must be
observed: 1) loss of confidence should not be simulated; 2) it should not be
used as subterfuge for causes which are improper, illegal or unjustified; 3) it
may not be arbitrarily asserted in the face of overwhelming evidence to the
contrary; and 4) it must be genuine, not a mere afterthought to justify earlier
action taken in bad faith.[54]
More important, it must be based on a
willful breach of trust and founded on clearly established facts.[55]
In this case, we agree with the NLRC
that the termination of respondent on the ground of loss of trust and
confidence was justified. Unlike the
Labor Arbiter and the CA, we find the testimony of Lobitaa credible and
truthful.
To begin with,
we find no inconsistencies between the first and the second affidavits of
Lobitaa. If at all, the only difference between the two is that the second
affidavit is more detailed than the first one. This, however, is understandable
considering that the first affidavit was executed by Lobitaa during
petitioners initial investigation, when it was still verifying the information
it received from Moralda, while the second affidavit, which contains Lobitaas
testimony during respondents administrative hearing, was executed long after the
investigation was conducted.
Also, there
appears to be no ill-motive on the part of Lobitaa to falsely accuse
respondent of accepting commissions and/or kickbacks. In fact,
it was not Lobitaa but Moralda who reported the irregularities to
petitioner. Lobitaa came forward only
during petitioners initial investigation to confirm the testimony of Moralda
that some personnel were indeed receiving commissions and/or kickbacks.
Moreover, as
between the positive testimony of Lobitaa that he gave respondent commissions
and/or kickbacks on two separate occasions, and the negative testimony of
respondents witnesses Cedeo and Banzon that no such meeting took place, we
are more inclined to give credence to the former. It bears stressing that a positive testimony
prevails over a negative one,[56]
more especially in this case where respondents witnesses did not even execute
affidavits to attest to the truthfulness of their statements. Thus, it was error on the part of the Labor
Arbiter and the CA to disregard the testimony of Lobitaa.
Likewise
erroneous is the reasoning of the Labor Arbiter and the CA that since
respondent was not involved in the procurement process, he could not be guilty
of violating Section 2.04[57] of petitioners
Company Rules and Regulations, which prohibits employees from:
Obtaining or accepting money or anything of value
by entering into unauthorized arrangements(s) with supplier (s), client(s) or
other outsiders(s).
This is a non
sequitur. As aptly pointed out by the
NLRC, although he was not directly involved in the procurement process,
respondent, as the then Power Plant Manager, had some power or authority vital
and indispensable to the procurement process.[58]
Quoted below is the NLRCs ratiocination, which we approve and adopt:
After going through the
records, we are afraid the Labor Arbiter completely missed the point. While canvassing, awarding, and approving of
purchase orders for company supplies, materials and equipment may not strictly
be the official functions of the [respondent], these being the concerns of the
Procurement Department, nevertheless as the then Power Plant Manager, [respondent] actually wielded some authority
which is vital and indispensable to the procurement process. As is usual in any industrial firm, the
procurement of company supplies, materials, and equipment is being handled by
its procurement department, then headed by Mr. Romeo Tinoco, Jr. The
procurement department is tasked with the duty to canvass and place purchase
orders for supplies, materials, and equipment sought to be procured by the
other departments, from which the purchase request originated. The requesting
department which generated the Purchase Request is called the end-user or
requestor.
Being more familiar with the
particulars of the supplies, materials and equipment that their respective
department[s] need, especially the technical aspect of it, the end-users are
tasked with the duty to provide the specifications of the supplies, materials,
equipment sought to be procured for their respective department[s]. Since the end-users are the ones [who]
provide for specifications, they are necessarily empowered to determine whether
the materials or equipment delivered by the supplier have complied with the
given specifications. If the item
delivered fails to meet the given specifications, the end-user has the
discretion to reject the delivery and demand for replacement.
One of the end-users that
often generates purchase requests is the Power Plant, of which [respondent] was
then the manager. Being then the manager
of the Power Plant, it was [respondents] duty to approve purchase requisition[s]
and prepare or caused to be prepared the desired specifications of the item
sought to be procured for the Power Plant, especially on the technical side of
the items. Upon the delivery,
[respondent] has the authority to determine if the items or equipment delivered
are in accordance with the specifications given.
In performing this function,
[respondent] would exercise some discretion either to accept the items
delivered if he finds them to have complied with the desired specifications or
reject the same if to his judgment the items delivered failed to meet the
desired specifications. In fact, [respondent] himself categorically admitted
during the administrative investigation that in the event the item is rejected,
the end-user has the right to demand for replacement:
x x x x
Thus, to the mind of any
supplier, the role of the end-user, like the Power Plant then headed by [respondent],
in the entire procurement process is as important and indispensable as that of
the procurement personnel. Since the
final acceptance of the items and/or equipment delivered/supplied by a supplier
lies with the end-user, the end-user equally wields the power to make or break
a supplier, and therefore, the suppliers have all the reasons in the
world to bribe the end-users if only to smoothen the acceptance of the
items supplied/ delivered.
Consequently, just because
[respondents] signature cannot be found in Annexes 10, 10-A, 10-B, 12,
12-A, 13 and 13-A, it does not necessarily mean that he has absolutely
nothing to do with the entire procurement process. As said, while [respondent] may not have been
empowered, to canvass and award purchase orders to suppliers, he was
empowered, as an end-user, to determine whether to accept or reject any item
delivered by any supplier, which authority is part and parcel of the entire
procurement mechanism put in place by the company.
It is obviously because of
this inherent power to accept or reject any item delivered that Mr. Lobitaa
had to give 10% kickbacks to the [respondent]. x x x[59]
All told, we
find that the testimony of Lobitaa constitutes substantial evidence to prove
that respondent, as the then Power Plant Manager, accepted commissions and/or
kickbacks from suppliers, which is a clear violation of Section 2.04 of
petitioners Company Rules and Regulations. Jurisprudence consistently holds
that for managerial employees the mere existence of a basis for believing that
such employee has breached the trust of his employer would suffice for his
dismissal. [60]
As we then see it, respondents termination was for a just and valid cause.
WHEREFORE, the petition is hereby GRANTED.
The assailed Decision dated November 15, 2006 and the Resolution dated February
6, 2007 of the Court of Appeals in CA-G.R. CEB-SP No. 01220 are hereby REVERSED and SET ASIDE. The Decision of the National Labor Relations
Commission dated July 11, 2005 and its Resolution dated August 25, 2005 are
hereby REINSTATED and AFFIRMED.
SO
ORDERED.
MARIANO C.
Associate Justice
WE
CONCUR:
TERESITA J. LEONARDO-DE CASTRO
Associate Justice
Acting Chairperson
|
LUCAS P. BERSAMIN Associate Justice |
MARTIN S. VILLARAMA, JR. Associate Justice |
ESTELA M. PERLAS-BERNABE
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 Courts Division.
TERESITA J. LEONARDO-DE CASTRO
Associate
Justice
Acting Chairperson
CERTIFICATION
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.
ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296,
The
Judiciary Act of 1948, as amended)
* Per
Special Order No. 1226 dated May 30, 2012.
**
Per Special Order No. 1227 dated May
30, 2012.
[1] Rollo, pp. 3-354 with Annexes A to HH inclusive.
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23]
[24]
[25]
[26]
[27]
[28]
[29]
[30]
[31]
[32]
[33]
[34]
[35]
[36]
[37]
[38]
[39]
[40]
[41]
[42]
[43]
[44]
[45]
[46]
[47]
[48]
[49]
[50]
[51] Hanjin Heavy Industries and Construction Co., Ltd. v. Ibaez, G.R. No. 170181, June 26, 2008, 555 SCRA 537, 549.
[52] Sevilla v. Court of Appeals, G.R. No. 150284, November 22, 2010, 635 SCRA 508, 515.
[53] 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 duly authorized representative;
x x x x
[54] Rubia v. National Labor Relations Commission, Fourth Division, G.R. No. 178621, July 26, 2010, 625 SCRA 494, 506.
[55] Sunrise Holiday Concepts, Inc. v. Arugay, G.R. No. 189457, April 13, 2011, 648 SCRA 785, 792.
[56] Arboleda v. National Labor Relations Commission, 362 Phil. 383, 390 (1999).
[57] Rollo, p. 77.
[58]
[59]
[60] House of Sara Lee v. Rey, 532 Phil. 121, 139 (2006).