FIRST DIVISION
|
NORKIS
DISTRIBUTORS, INC. AND
ALEX D. BUAT, Petitioners, - versus - |
G.R.
No. 185255 Present: Chairperson, LEONARDO-DE
CASTRO, BERSAMIN,
VILLARAMA,
JR., and PERLAS-BERNABE,* JJ. |
|
DELFIN
S. DESCALLAR, Respondent. |
Promulgated: March
14, 2012 |
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DECISION
VILLARAMA,
JR., J.:
Before us is a petition for review on certiorari assailing the
The facts are as follows.
On
In a memorandum dated June 20, 2002,
petitioners required respondent to explain in writing within forty-eight (48)
hours why he should not be penalized or terminated for being absent without
official leave (AWOL) or rendering under-time service on certain dates from
April 3, 2002 to June 11, 2002.[4] On
On
While respondent was still serving his
suspension, the Internal Auditor of the company made a random operational
review and audit of the Iligan City Branch.
Several findings against respondent were noted by the auditor, to wit:
1. Refusal to accept
redemption payment from customer Gamboa on their deposited motorcycle unit and
unauthorized use of said deposited motorcycle unit;
2. Requiring customer Amy
Pastor to pay an amount in excess of her account balance;
3. Disbursement of sales
commissions to unauthorized persons;
4. Application of sales commission
on the down payments of several walk-in customers.[7]
On
Later, respondent and Branch Control Officer
Rosanna Lanzador received a memorandum dated July 23, 2002, informing them that
during a cash count conducted on July 12, P800
in the companys TNT fund was discovered.
Likewise, an irregularity was found in the disbursement of sales
commissions amounting to P1,700.
These amounts were charged equally to the accounts of respondent and
Lanzador.[9]
Thereafter, in another memorandum dated
On
x x x x
It has been reported that during
the audit of your branch last July 2002, serious adverse findings were noted
against you as follows:
a) Refusal to accept redemption payment made by
customer Gamboa on their deposited motorcycle unit which was traced later sold
to one Marvin Joseph Gealon allegedly your nephew;
b) Unauthorized use of deposited motorcycle
unit owned by Ludy Gamboa;
c) Requiring customer Amy Pastor to pay
excessive amount over her account balance;
d) Disbursement of sales commissions to
unauthorized persons;
e) Doing personal business of selling safety
helmets using the facility of the branch.
Further, it is so disappointing to note that
despite management support and cooperation, your branch performance
continuously failed to reach to an acceptable level as illustrated below:
|
YEAR |
SALES QUOTA |
ACTUAL AVERAGE SALES |
ACCEPTABLE
COLLEX |
ACTUAL AVERAGE COLLEX |
|
2001 (Jan-Dec) |
13 units |
5 only |
70% |
43% only |
|
2002 (Jan-Jun) |
13 units |
5 only |
70% |
39% only |
Please take note that adverse
audit findings above coupled with inefficiency are sufficient grounds for
termination. In this light therefore,
you are commanded to explain in writing within 24 hours upon receipt of this
notice to show cause why you will not be terminated from your service with the
company. Failure on your part to
response shall be construed as waiver of your right to be heard.
x x x x[11]
On
Aggrieved,
respondent filed a complaint for illegal suspension and illegal dismissal
before the Sub-Regional Arbitration Branch X in
On
WHEREFORE, in the light of all the
foregoing, judgment is hereby rendered declaring the termination of complainant
Delfin Descallar to be illegal and respondent NORKIS Distributor, Inc. is
ordered to pay complainant separation pay equivalent to one (1) month for every
year of service plus backwages from the time he was illegally suspended until
the promulgation of this decision computed as follows:
Unpaid Wages:
P8,773.00/mo. @ 17days
---------------------- P
5,736.19
Backwages:
P8,773 x 8 mos.
--------------------------------- P70,184.00
13th Month Pay:
P70,184.00
+ P5,736.19 x 1/12 -------------- P 6,326.68
Separation Pay (April 26, 1993 March 10,
2003)
P8,773
x 10 yrs. --------------------------------
P 87,730.00
Or in the total amount of P169,976.87.
Respondent is likewise ordered to pay ten
(10%) percent of the total award representing attorneys fees.
Other claims are hereby ordered dismissed
for lack of merit.
SO ORDERED.[14]
Not satisfied, petitioners
appealed to the NLRC. In a Resolution[15]
dated
WHEREFORE,
foregoing considered, the questioned decision is MODIFIED in favor of the
finding that complainant was validly suspended, thence, dismissed for just
cause and after due process.
Accordingly, he is not entitled to awards of back wages, separation pay
and even 13th month pay.
Respondent is only ordered to pay the complainant the unpaid wages as
stated above in the amount of P5,736.19.
SO ORDERED.[16]
Respondents
motion for reconsideration having been denied, he filed with the CA a petition
for certiorari under Rule 65 of
the 1997 Rules of Civil Procedure, as amended.
In a
Decision dated
WHEREFORE, the assailed Resolution dated
1. The award of 13th
month pay.
2. The award of backwages for the period
All
other awards in the Decision of the Labor Arbiter are affirmed.
SO
ORDERED.[17]
Respondent filed a
motion for clarification as to the awards of separation pay and back wages
while petitioners filed a motion for reconsideration.
On October 24, 2008, the CA issued
a Resolution stating that as regards respondents motion for clarification, the
separation pay and back wages shall be reckoned from the time respondent was
illegally suspended until finality of the March 31, 2008 Decision. The CA likewise denied petitioners motion
for reconsideration in the same resolution.
Hence, petitioners filed the
present petition.
Essentially, petitioners argue
that the CA gravely erred in not giving weight to the affidavits and sworn
certifications of their witnesses, and in finding that they relied entirely on
the affidavits of their witnesses in terminating respondent. Likewise, petitioners claim that the CA committed
grave error in holding that the failure of respondent to reach his monthly
sales quota is not a valid basis for loss of trust and confidence.
On the other hand, respondent points
out that the issues raised in this petition are factual as they are solely
focused on the probative value of the affidavits of petitioners
witnesses. He contends that questions of
fact cannot be raised in this mode of appeal considering that the Supreme Court
is not a trier of facts. Thus,
respondent submits that the instant petition deserves outright denial.
We dismiss the petition for lack of
merit.
Loss of trust and confidence as a ground for termination of an employee under
Article 282[18]
of the Labor Code requires that the breach of trust be willful, meaning
it must be done intentionally, knowingly, and purposely, without justifiable
excuse.[19]
The basic premise for dismissal on the ground of loss of confidence is that the
employees concerned holds a position of trust and confidence. It is the breach of this trust that results in
the employers loss of confidence in the employee.
Here, there
is no question that as petitioners Branch Manager in
Now, petitioners
terminated his employment on the ground of loss of trust and confidence for
supposedly committing acts inimical to the companys interests. However, in
termination cases, the burden of proof rests upon the employer to show that the
dismissal is for a just and valid cause and failure to do so would necessarily
mean that the dismissal was illegal.[20] The employers case succeeds or fails on the
strength of its evidence and not on the weakness of the employees defense. If
doubt exists between the evidence presented by the employer and the employee,
the scales of justice must be tilted in favor of the latter. Moreover, the quantum of proof required in
determining the legality of an employees dismissal is only substantial
evidence or such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion, even if other minds, equally reasonable,
might conceivably opine otherwise.[21] Thus,
it is incumbent upon petitioners to prove by substantial evidence that valid
grounds exist for
terminating respondents employment on the ground of loss of
trust and confidence. However, our review of the records of this
case reveals that the CA correctly held that petitioners failed to discharge
this burden.
In
terminating respondents services, petitioners relied on several grounds. First, petitioners relied on the affidavit of
customer Ludy Gamboa. In her affidavit, Ludy
Gamboa accused respondent of refusing to accept payment of P7,000 to
redeem a motorcycle unit sometime on
Second, petitioners
also allege that respondent charged customer Amy Pastor an excessive amount. In her affidavit, Pastor claimed that sometime
on January 2002, respondent required her to pay the amount of P5,566,
while her outstanding balance was only P378.[24]
However, a closer look at the audit
report conducted by the internal auditor of petitioner Norkis, Joelito L.
Florenosos, would show that there was no over-collection.[25]
Said exculpatory finding was also made
after the internal auditor noted that the official receipt respondent issued to
cover the said collection showed no such over-collection. Why petitioners chose to believe Pastors
affidavit over the findings of its own internal auditor which was duly
supported by documentary evidence is perplexing.
Third, petitioners
accuse respondent of giving unauthorized commissions to Mr. Gary Bellen. Respondent however asserted, and petitioners
did not rebut, that Bellen is a legitimate Personalized Sales Representative of
Norkis Distributors, as evidenced by the contract they signed.[26] Respondent also explained, and petitioners
again did not rebut, that Bellen tutored the staff in computer programming and
operation free of charge, on the condition that he may entertain customers and
receive commissions. Clearly, therefore,
the arrangement made with Bellen was even beneficial to the company. Hence, in giving commissions to Bellen, as
sales representative, it cannot be said that respondent willfully breached
petitioners trust and confidence in him.
Fourth,
petitioners argue that respondents failure to reach his monthly sales quota is
a valid basis for loss of trust and confidence.
In his explanation, respondent asserted that certain factors were to be
considered for the low sales performance in their branch such as the existence
of other competitors which offered low down payments, low monthly installments,
and other promotional items. Respondent
also emphasized that the customers capacity to pay had been affected by the
financial crisis at the time, thus making it more difficult to collect from
them.
To
our mind, the failure to reach the monthly sales quota cannot be considered an
intentional and unjustified act of respondent amounting to a willful breach of
trust on his part that would call for his termination based on loss of
confidence. This is simply not the
willful breach of trust and confidence contemplated in Article 282(c) of the Labor
Code. Indeed, the low sales
performance could be attributed to several factors which are beyond
respondents control. To be a valid
ground for an employees dismissal, loss of trust and confidence must be based
on a willful breach.[27]
To repeat, a breach is willful if it is done intentionally, knowingly
and purposely, without justifiable excuse.[28]
Petitioners
having failed to establish by substantial evidence any valid ground for
terminating respondents services, we uphold the finding of the Labor Arbiter and
the CA that respondent was illegally dismissed.
But did
the CA award correct reliefs to respondent? We likewise rule in the
affirmative.
An illegally dismissed
employee is entitled to two reliefs: back wages and reinstatement. The two
reliefs provided are separate and distinct. In instances where reinstatement is
no longer feasible because of strained relations between the employee and the
employer, separation pay is granted. In effect, an illegally dismissed employee
is entitled to either reinstatement if such is viable, or separation pay if
reinstatement is no longer viable, and to back wages.
The normal consequences of respondents
illegal dismissal, then, are reinstatement without loss of seniority rights,
and payment of back wages computed from the time compensation was withheld from
him up to the date of actual reinstatement. Where reinstatement is no longer
viable as an option, separation pay equivalent to one month salary for every
year of service should be awarded as an alternative. The payment of separation
pay is in addition to payment of back wages.[29]
Petitioners
question the CA Resolution dated
We
do not agree.
Such
contention is misplaced. The CA merely
clarified the period of payment of back wages and separation pay up to the
finality of its decision (March 31, 2008) modifying the Labor Arbiters
decision. In view of the modification of monetary awards in the Labor Arbiters
decision, the time frame for the payment of back wages and separation pay is
accordingly modified to the finality of the CA decision. The clarification thus made on motion of the
respondent was not an amendment of the
WHEREFORE,
the petition for review on certiorari is DENIED. The Decision dated
Costs
against petitioners.
SO ORDERED.
|
|
MARTIN S. VILLARAMA,
JR. Associate Justice |
|
|
WE
CONCUR: RENATO C. CORONA Chief Justice Chairperson |
||
|
TERESITA J. LEONARDO-DE CASTRO Associate Justice |
LUCAS P. BERSAMIN Associate Justice |
|
|
ESTELA M.
PERLAS-BERNABE Associate Justice |
||
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII
of the 1987 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 Courts Division.
|
|
RENATO C. CORONA Chief Justice |
* Designated
additional member per Special Order No. 1207 dated
[1] Rollo, pp. 49-72. Penned by Associate Justice Romulo V. Borja with Associate Justices Mario V. Lopez and Elihu A. Ybaez concurring.
[2]
[3] CA rollo, pp. 31-34.
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15] Supra note 3.
[16]
[17] Rollo, p. 71.
[18] 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
[19] Philippine National Construction Corporation v. Matias, G.R. No. 156283, May 6, 2005, 458 SCRA 148, 159, citing Gonzales v. National Labor Relations Commission, G.R. No. 131653, March 26, 2001, 355 SCRA 195, 207; P.J. Lhuillier, Inc. v. National Labor Relations Commission, G.R. No. 158758, April 29, 2005, 457 SCRA 784, 798, citing Tiu v. National Labor Relations Commission, G.R. No. 83433, November 12, 1992, 215 SCRA 540, 547; Felix v. National Labor Relations Commission, G.R. No. 148256, November 17, 2004, 442 SCRA 465, 485, citing Dela Cruz v. National Labor Relations Commission, G.R. No. 119536, February 17, 1997, 268 SCRA 458, 470.
[20] Philippine Long Distance Telephone Company, Inc. v. Tiamson, G.R. Nos. 164684-85, November 11, 2005, 474 SCRA 761, 771.
[21]
[22] CA rollo, p. 215.
[23]
[24]
[25]
[26] Records, Vol. III, p. 51.
[27] Easycall Communications Phils., Inc. v. King, G.R. No. 145901, December 15, 2005, 478 SCRA 102, 111, citing Asia Pacific Chartering (Phils.), Inc. v. Farolan, 441 Phil. 776, 792 (2002) and National Bookstore, Inc. v. Court of Appeals, 428 Phil. 235, 246 (2002).
[28] National Bookstore, Inc. v. Court of Appeals, id.
[29]
[30] See Philippine Amusement and Gaming
Corporation v.