Republic
of the
Supreme Court
SECOND DIVISION
|
BLUE SKY TRADING COMPANY, INC. and/or JOSE TANTIANSU
and LINDA TANTIANSU, Petitioners, - versus - ARLENE P. BLAS and JOSEPH D. SILVANO, Respondents. |
G.R. No. 190559
Present: CARPIO, J., Chairperson, BRION, PEREZ, SERENO,
and REYES,
JJ. Promulgated: March
7, 2012 |
x----------------------------------------------------------------------------------------x
DECISION
REYES, J.:
The Case
Before us is a Petition for Review on Certiorari[1]
under Rule 45 of the Rules of Court assailing the October 26, 2009 Decision[2]
and the December 14, 2009 Resolution[3]
of the Court of Appeals (CA) in CA G.R. SP No. 108432. The dispositive portion
of the assailed decision reads:
WHEREFORE, premises
considered, the instant Petition is GRANTED. The challenged resolution
of the NLRC dated 30 January 2009 is hereby REVERSED and SET ASIDE.
Accordingly, the Decision of the NLRC dated 29 November 2007 is hereby REINSTATED.
SO ORDERED.[4]
The assailed resolution denied the petitioners' Motion for Reconsideration[5] to the foregoing.
Antecedent Facts
Petitioner Blue Sky Trading Company, Inc. (Blue Sky) is a
duly registered domestic corporation engaged in the importation and sale of
medical supplies and equipment. Petitioner Jose G. Tantiansu, Jr. (Jose) is
Blue Sky's vice president for operations while petitioner Linda G. Tantiansu
(Linda) is its assistant corporate secretary. The respondents Arlene P. Blas
(Arlene) and Joseph D. Silvano (Joseph) were regular employees of Blue Sky and
they respectively held the positions of stock clerk and warehouse helper before
they were dismissed from service on February 5, 2005.
On January 29, 2005, Lorna N. Manalastas (Lorna), Blue
Sky's warehouse supervisor, wrote Jose a memorandum[6]
informing the latter that six pairs of intensifying screens were missing. Lorna
likewise stated that when a certain Boy conducted an inventory on October
2004, the screens were still completely accounted for.
On January 31, 2005, Helario Adonis, Jr. (Helario), warehouse
personnel, was summoned by Linda, Jose's wife Alice Tantiansu, and human
resources department head Jean B. De La Paz (Jean). Helario was asked to admit
his participation in the theft of the missing screens. While he was offered to
be paid a separation pay if he would confess complicity with the alleged theft,
he pleaded utter innocence.
On February 1, 2005, Jean notified Helario of his
termination from service on the ground of his failure to properly account for
and maintain a balance of the company's stock inventories, hence, resulting in
Blue Sky's loss of trust and confidence in him.[7]
The day after, Blue Sky promptly filed with the Department of Labor and
Employment (DOLE) an establishment termination report[8]
indicating therein Helario's dismissal from service for cause.
On February 3, 2005, Jean issued notices to
explain/preventive suspension[9]
to Arlene, Joseph, delivery personnel Jayde Tano-an (Jayde) and maintenance
personnel/driver Wilfredo Fasonilao (Wilfredo). The notices informed them that
they were being accused of gross dishonesty in connection with their alleged
participation in and conspiracy with other employees in committing theft
against company property, specifically relative to the loss of the six
intensifying screens. They were placed under preventive suspension pending
investigation and were thus required to file their written explanations within
48 hours from receipt of the notices.
On February 4, 2005, Arlene submitted to Jean a handwritten
memorandum denying knowledge or complicity with the theft of the intensifying
screens. In part, the memorandum reads:
I'm not the supervisor of that dep't. para
tanungin sa lahat ng nangyayari. Second, hindi naman ako ang nag-inventory ng
stocks na yan. Third, nag-oout lang ako ng stocks kapag wala sila at kailangan
na ang stocks. And lastly, ano ba talaga ang trabaho ko dito, kc all I know is
pag-re-record ng stocks but parang lumalabas guard ako na kailangan kong
malaman ang lahat ng kilos at galaw ng lahat ng employee dito. Dahil ako lagi
ang tinatanong tungkol sa nangyayari sa mezz. Bakit ako lang ba ang tao doon?
So it means that, dapat lahat kami ay may memo para mag-explain regarding that
matter. Maging fair naman kayo sa akin.
Anyway,
regarding sa nawawalang IS, ang alam ko inim-ventory ni Kuya Boy yan last Oct.
According to him, complete daw lahat yun. Nang bumaba si Sir Jun mga last week
ng Dec. para magpalinis ng stocks, na-found out nya na kulang ang stocks. So we
did, we compare the bincard to the stockcard. But tally silang pareho. Kaya, we
did we trace it is sa mga possible records like shipment sa
On the other hand, Joseph
proffered the following explanation:
Tungkol po sa nawawalang intensifying screen, wala po akong
alam. Kasi po sa messanin[,] pumapasok lang po ako pag may inutos o may
pagagawa, tsaka hindi po ako naghahanda ng lumang stocks. Nagbababa po kami ng
stock at nag-aakyat sa 2nd flor pag kami po ay inutusan ng
nakakataas sa akin o may katungkulan. Yun lang po ang aking trabaho sa mesanin.
Eto lang po ang aking masasabi.[11]
Jayde and Wilfredo also filed their written
explanations denying any involvement in the theft which took place and
professing their dedication and loyalty to Blue Sky.[12]
On February 5, 2005, Jean issued to Arlene, Joseph, Jayde
and Wilfredo notices of dismissal for cause[13]
stating therein that evidence that they had conspired with each other to commit
theft against company property was too glaring to ignore. Blue Sky had lost its
trust and confidence on them and as an act of self-preservation, their
termination from service was in order.
On February 7, 2005, Blue Sky filed with the DOLE an establishment
termination report stating therein the dismissal of Arlene, Joseph, Jayde and
Wilfredo.[14]
On February 8, 2005, Arlene, Joseph, Helario, Jayde and Wilfredo
filed with the National Labor Relations Commission (NLRC) a complaint for
illegal dismissal and suspension, underpayment of overtime pay, and non-payment
of emergency cost of living allowance (ECOLA), with prayers for reinstatement
and payment of full backwages. The complaint was docketed as NLRC NCR Case No.
00-02-01351-05.
Meanwhile, an entrapment operation was conducted by the
police during which Jayde and Helario were caught allegedly attempting to sell
to an operative an ultrasound probe worth around P400,000.00 belonging
to Blue Sky. On April 22, 2005, Quezon City Inquest Prosecutor Arleen Tagaban
issued a resolution[15]
recommending the filing in court of criminal charges against Jayde and Helario.
On May 2005, before the complaint which was filed with the NLRC
can be resolved, Helario, Jayde and Wilfredo executed affidavits of desistance[16]
stating therein that their termination by Blue Sky was for cause and after
observance of due process.
The Ruling of the Labor
Arbiter
On November 17, 2005, Labor Arbiter Gaudencio P. Demaisip, Jr. (LA
Demaisip) dismissed the complaint relative to Helario, Jayde and Wilfredo as a
consequence of their filing of the affidavits of desistance. As to Arlene and
Joseph, LA Demaisip denied their claims of illegal suspension and dismissal and
for payment of ECOLA and overtime pay based on the following grounds:
[T]he duties of Ms. Blas [Arlene] was to take
out stocks. Also, Mr. Silvano's [Joseph] work consisted of removing, storing,
or furnishing of stocks or supplies.
Further,
Ms. Blas [Arlene] was tasked to make written monitoring of stocks or
supplies.
Complainants
therefore, are charged with the care and custody of respondents' property. They
may not be given such functions or allowed entrance and exit from respondents'
bodega if they were untrustworthy.
Indeed,
the functions consisting of removing, storing, furnishing, monitoring and
gaining ingress to and egress from the bodega, where the stocks or supplies
are kept, involved trust and confidence.
Article
282 of the Labor Code allows the employer to terminate the services of the
employees, among others, for breach of trust and confidence.
Loss
of confidence however, apply (sic) to the following: x x x (2) to those situations
where the employee is routinely charged with the care and custody of the
employer's money or property such as auditors, cashier; property custodians, or
those who regularly handle significant amount of money or property.
The
dismissal must rest on actual breach of duty committed by the employee.
Further,
proof beyond reasonable doubt is not necessary. It is sufficient if there is
some basis for such loss of confidence.
x
x x
The
basis, for the dismissal of the complainants, is the fact that six (6) pairs of
assorted sizes of Intensifying Screen of the company at the bodega were lost x x
x.
An
entrapment was conducted against Tano-an [Jayde] and Adonis [Helario] x x x:
x
x x
Simply
put, the contention, about the missing items or supplies, is credible and
reliable.
It
is not necessary that proof of taking or conspiracy must exist.
The
existence of the fact, that items or supplies were missing at the bodega of the
company, would suffice to prove loss of confidence.
Complainants
failed in their duties to exercise utmost protection, care, or custody of
respondent's property. Hence, their dismissal from the service is warranted.
x
x x
Claims
for ECOLA and overtime pay were not discussed by the complainants[,] hence,
they should be denied.[17]
Arlene
and Joseph assailed before the NLRC the decision rendered by LA Demaisip.[18]
The Rulings of the NLRC
On November 29, 2007, the NLRC ordered the reinstatement of Arlene
and Joseph and the payment to them of full backwages and ten percent attorney's
fees. The decision, in part, reads:
[T]he respondents [Blue Sky, Jose and Linda]
accused complainants [Arlene and Joseph] of theft of company property. It was,
thus, incumbent upon the respondents to prove the alleged theft by the
appellants [Arlene and Joseph] with clear and substantial evidence. A reading
of the record will, however, show that respondents have not presented any
evidence to show the involvement of the complaint [sic] Arlene Blas and Joseph
Silvano x x x in the theft. To start with, appellants were not caught red
handed. No specific acts or deeds were imputed upon appellants to prove the
allegation that they committed theft against the respondents. While there may
be articles which may have been lost, the respondents have not shown how these
were lost and how appellants participated in the theft. The fact that
appellants had access to the lost items is not sufficient to prove their guilt.
As shown, there were several other persons who had unlimited access to the
warehouse where the items stolen were stacked. No witnesses were also presented
implicating appellants in the theft.
As
it is, all respondents have are general allegations that appellants conspired
with the other complainants in stealing the lost items. Allegations, no matter
how convincing they may sound, while they remain to be so, cannot be considered
as clear and substantial evidence sufficient to justify the dismissal of an
employee. While proof beyond reasonable doubt is not required, still
respondents should have presented substantial evidence to support the grounds
they have relied upon. x x x
x x x
Finally, [w]e do not see appellants as
holding positions of trust and confidence. Before an employee may be dismissed
due to willful breach of trust, he must hold a position of trust and confidence
(Estiva [v]s. NLRC, G.R. No. 95145,
August 5, 1993). A position of trust and confidence is one where a person
is entrusted with confidence on delicate matters, or with the custody,
handling, or care and protection of the employers property (Panday vs. NLRC, G.R. No. 67664, May 20,
1994) and/or funds (Gonzales vs. NLRC, 335 SCRA 197).
Appellant
Arlene Blas is a Stock Clerk while Joseph Silvano is a warehouse helper. While
they may have access to the lost items, they were not entrusted with confidence
on delicate matters or custody of the employer's property. They do not have the
authority to withdraw, transfer or release items in the warehouse. They are
mere low keyed employees who deal with the handling of stocks only when ordered
to by their superiors.[19]
Both parties filed their
motions for reconsideration[20]
to the foregoing.
Claiming that their relations with Blue Sky had been
strained, Arlene and Joseph sought the payment of separation pay, in lieu
of reinstatement. Further, they lamented that the NLRC failed to specifically
address the issue relative to their monetary claims. Hence, they reiterated the
said claims, in addition to service incentive leave and 13th month
pay for the year 2005, arguing that the burden to prove payment of benefits pertained to Blue Sky which
miserably failed in this regard.
On the other hand, Blue Sky averred that substantial
evidence existed to support its claim that Arlene and Joseph participated in,
or at the least knew about, the theft of the missing screens.
On January 30, 2009, the NLRC issued a resolution reversing
its earlier decision and reinstating LA Demaisip's dismissal of the complaint
filed by Arlene and Joseph on the basis of the following:
In our Decision
promulgated on November 29, 2007, we advanced the view that complainants Blas
[Arlene] and Silvano [Joseph] were ordinary employees not occupying positions
of trust, without however taking a profound appreciation of the fact that
complainants' duties as stock clerk and warehouse helper routinely involved
having unlimited access to company's properties and stocks. The fact that same
properties which were subject of losses and thievery as established from the
subsequent entrapment operations conducted by the respondents with the
assistance of PNP operatives against the two (2) other complainants, namely
Jayde [Tano-an] and Helario Adonis, who are presently facing charges for
attempting to sell respondents' property, convinced this Commission to
reconsider its previous finding and be in agreement with the respondents'
position.
x
x x
While
we are not unmindful of the fact that complainants Blas and Silvano were not
part of the group who were apprehended during the entrapment operations,
however, had they not been remiss in their respective duties [as] stock clerk
and warehouse helper or not aided their former co-workers Tano-an and Adonis,
thievery or losses of company's property could not have been committed.
x
x x
The
loss of company's property having been substantially proven, complainants Blas [Arlene]
and Silvano [Blas] cannot just make a general denial and wash their hands
clean. Their termination not only due to loss of trust but also for gross
neglect of duties is therefore found justified. x x x
x
x x
Finally,
as regards complainants' claim for alleged unpaid 13th month pay and
service incentive leave pay for 2005, contrary evidence however showed that
respondents [Blue Sky] had paid the said claims as shown by the payment of
their final monetary benefits which the complainants had duly received.[21]
Aggrieved, Arlene and Joseph filed before the CA a Petition for Certiorari[22]
under Rule 65 of the Rules of Court to challenge the above quoted NLRC
resolution.
The Ruling of the CA
In the decision rendered on October 26, 2009, which is now
the subject of the instant petition, the CA found merit in the claims advanced
by Arlene and Joseph. In reversing the January 30, 2009 Resolution of the NLRC,
the CA ratiocinated that:
Prefatorily, the basic
requisite for dismissal on the ground of loss of trust and confidence is that
the employee concerned must be one holding a position of trust and confidence. A
position of trust and confidence is one where a person is entrusted with
confidence on delicate matters, or with the custody, handling or care and
protection of the employer's property. And, in order to constitute a just cause
for dismissal, the act complained of must be work-related and shows that the
employee concerned is unfit to continue to work for the employer.
In General Bank and Trust Company vs. Court
of Appeals, the Supreme Court laid down the following guidelines for the
application of the doctrine of loss of confidence as a justification in the
termination of erring employees, viz:
(a) loss of confidence which should not be
simulated;
(b) it should not be used as a subterfuge
for causes which are improper, illegal or unjustified;
(c) it should not be arbitrarily asserted in
the face of overwhelming evidence to the contrary; and
(d) it must be genuine, not a mere
afterthought to justify earlier action taken in bad faith.
x
x x
To
[o]
However,
[w]e hold that the [r]espondents failed to sufficiently establish the charge
against [p]etitioners which was the basis for its loss of trust and confidence that
warranted their dismissal. Concededly, it is settled that proof beyond
reasonable doubt is not required in dismissing an employee on the ground of
loss of trust and confidence. It is sufficient that there is some basis for
such loss of confidence or that there must be some reasonable grounds to
believe, if not to entertain the moral conviction that the employee concerned
is responsible for the misconduct and that the nature of his participation
therein rendered him absolutely unworthy of trust and confidence demanded by
his position. However, loss of confidence as a valid cause to terminate an
employee must nonetheless
rest on actual breach of duty committed by the employee and not on the
employer's imagined whim or caprice.
Verily,
[w]e are convinced that the [r]espondents failed to adduce any substantial
proof showing that the [p]etitioners committed an actual breach of their duty
which destroyed the trust and confidence reposed upon them by their employer.
Clearly, there is no ample evidence to show that [p]etitioners conspired with
the thieves in stealing six (6) pairs of intensifying screens from [r]espondents[']
warehouse. Nor is there any shred of evidence that tends to prove that the [p]etitioners
had a direct hand in the larceny committed against the [r]espondents. In fact,
the verity of the [p]etitioners' innocence on the thievery committed against
the [r]espondents was recognized by the NLRC in the assailed Resolution, viz:
x
x x
While we are not unmindful of the fact
that complainants Blas [Arlene] and Silvano [Joseph] were not part of the group
who were apprehended during the entrapment operations, however, had they not
been remiss in their respective duties [as] stock clerk and warehouse
helper or not aided their former co-workers Tano-an and Adonis, thievery or
losses of company's property could not have been committed. x x x
x
x x
The
ratiocination of the NLRC in reversing its initial pronouncement is that the
[p]etitioners were remiss in their duty is flawed. It bears noting that the
NLRC offered no explanation to justify this finding nor is there any scintilla
of evidence in the records to support the conclusion that the [p]etitioners had
aided, expressly or impliedly, their former co-workers in committing theft
against the company.[23]
(Citations omitted)
The CA denied the petitioners' motion for reconsideration, hence,
the instant petition.
The Issues
The petitioners submit the following for resolution:
I.
WHETHER OR NOT THE EVIDENCE ADDUCED BEFORE
THE NLRC BY PETITIONERS ARE SUFFICIENT TO ESTABLISH THE CHARGES WHICH WAS (sic)
BASIS FOR THE LOSS OF TRUST AND CONFIDENCE AGAINST RESPONDENTS[-]EMPLOYEES.
II.
WHETHER OR NOT THE CA WAS CORRECT IN GRANTING
THE PETITION FOR CERTIORARI FILED BY RESPONDENTS AND LATER, DENYING
PETITIONERS' MOTION FOR RECONSIDERATION.[24]
The Petitioners'
Arguments
In Salvador v. Philippine Mining Service Corporation,[25]
it was ruled that proof beyond reasonable doubt of the employee's misconduct or
dishonesty is not required to justify loss of confidence, it being sufficient
that there is substantial basis for loss of trust. Thus, an employer should not
be held liable for dismissing the services of an employee sincerely believed to
have at least known or participated in the commission of theft against company
property. The employer is not required to present proofs of the employee's
actual taking or unlawful possession of company property. In fact, in Dole Philippines,
Inc. v. NLRC, et al.,[26]
the court held that where the dismissal for loss of confidence is based on
suspected theft of company property on the part of the employee, it remains a
valid cause for dismissal even if the employee is subsequently acquitted.
It is immaterial that Arlene and Joseph were not among those who
were entrapped attempting to sell an ultrasound probe to a police operative.
The nature of their tasks at Blue Sky and the fact of loss of the intensifying
screens dictated Arlene and Joseph's liabilities. Arlene's daily work routine
involved (a) receiving and releasing of stocks; and (b) preparing stock cards
for purposes of checking and monitoring the items in the warehouse. On the
other hand, Joseph carried and moved stocks in and out of the warehouse. The
six intensifying screens were discovered missing while Arlene, Joseph, Helario,
Jayde and Wilfredo were supposedly performing their tasks, hence, the logical
inference that they conspired to commit the theft or at least, knowingly
allowed it to happen. Had the employees exercised due or even ordinary
diligence to protect company property, no loss would have been incurred.
Further, the defense interposed by Arlene in her written explanation that she was
not employed by Blue Sky as a security guard, showed her utter lack of concern
for the company's welfare, which rendered her undeserving of an employer's
trust and confidence.
Findings of fact of quasi-judicial agencies, like the NLRC, are
accorded not only respect but even finality when they are supported by
substantial evidence.[27]
Thus, the CA erred when it ruled that the NLRC gravely abused its discretion in
ordering the dismissal of the respondents' complaint.
The Respondents'
Contentions
In their Comment,[28] the respondents cited Section 1, Rule 45 of
the Rules of Court to argue that only questions of law can be raised in a
petition for review on certiorari. In the case at bar, the petitioners
raise a factual question, to wit, the alleged sufficiency of the evidence they
presented to justify the dismissal of Arlene and Joseph on the basis of loss of
trust and confidence. The petitioners thus call for an examination of the
probative value of the evidence offered by the parties, which is beyond the province
of a petition filed under Rule 45 of the Rules of Court.
This Court's Ruling
While a petition for
review on certiorari under Rule 45 of the Rules of Court generally
precludes us from resolving factual issues, the instant case falls among the exceptions
as the LA, the NLRC and the CA were at odds as to their findings.
We deem it proper to first resolve the procedural challenge
interposed by the respondents against the instant petition and we find it
lacking in merit.
It bears stating that Rule 45 limits us merely to the review of
questions of law raised against the assailed CA decision.[29]
Further, the Court is generally bound by the CA's factual findings. The
foregoing rules, however, admit of exceptions, among which is when the CA's
findings are contrary to those of the trial court or administrative body
exercising quasi-judicial functions from which the action originated.[30] The case before us now falls
under the aforementioned exception as the LA, NLRC and the CA were at odds as
to their findings.
Substantial evidence of
actual breach by an employee is required from an employer to be able to justify
the former's dismissal from service on the basis of an alleged participation in
theft of company property. However, in the case at bar, Blue Sky had failed to
discharge the burden of proof imposed upon it.
We note that the petitioners essentially raise the sole question
of whether they had proven by substantial evidence the charges of theft against
Arlene and Joseph which led to the latter's termination from service on the
ground of loss of trust and confidence.
We rule in the negative.
In Functional, Inc. v. Samuel Granfil,[31] we declared:
The rule
is long and well settled that, in illegal dismissal cases like the one at
bench, the burden of proof is upon the employer to show that the employees
termination from service is for a just and valid cause. The employers case
succeeds or fails on the strength of its evidence and not on the weakness of
that adduced by the employee, in keeping with the principle that the scales of
justice should be tilted in favor of the latter in case of doubt in the
evidence presented by them. Often described as more than a mere scintilla, the
quantum of proof is substantial evidence which is understood as such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion,
even if other equally reasonable minds might conceivably opine otherwise.
Failure of the employer to discharge the foregoing onus would mean that the
dismissal is not justified and therefore illegal.
Further, in Baron v.
NLRC,[32]
we held that for there to be a valid dismissal based on loss of trust and
confidence, the breach of trust must be willful, meaning it must be done
intentionally, knowingly, and purposely, without justifiable excuse.
In the case at bar,
we agree with the petitioners that mere substantial evidence and not proof beyond
reasonable doubt is required to justify the dismissal from service of an
employee charged with theft of company property. However, we find no error in
the CA's findings that the petitioners had not adequately proven by substantial
evidence that Arlene and Joseph indeed participated or cooperated in the commission
of theft relative to the six missing intensifying screens so as to justify the
latter's termination from employment on the ground of loss of trust and
confidence.
Blue Sky alleged that Arlene, who was a stock clerk, and Joseph, a
warehouse helper, had free access to the missing items. Arlene, who kept the
stock cards, was supposed to be monitoring on a daily basis the incoming and
outgoing stocks stored in or taken out of the warehouse. Joseph took the stocks
from the warehouse to the vehicles for transport or delivery purposes. Arlene
and Joseph averred otherwise. They insisted that they were mere lowly employees
who did not have actual custody of company property, specifically, of the
missing items. Arlene claimed that she was not responsible for conducting
inventories and that she released stocks only when urgently necessary and only
in the absence of those authorized to do so. Joseph alleged that he only went
to the mezzanine, where the missing items were stored, when ordered to do so by
his superiors.
We note that the parties disagree as to what tasks were actually
and regularly performed by Arlene and Joseph. They are at odds as to the issue
of whether or not Arlene and Joseph had custody of the missing screens. We
observe though that neither of the parties presented any documentary evidence,
such as employment contracts, to establish their claims relative to the actual
nature of Arlene and Joseph's daily tasks. It bears emphasizing though that the
photocopies of the identification cards issued by Blue Sky, which were annexed
to the respondents' position paper filed with the LA, indicated that Arlene was
assigned at the customer service department while Joseph was part of the
warehouse department.[33]
During the entrapment operation conducted by police
operatives, Jayde and Helario were caught attempting to sell an ultrasound
probe allegedly belonging to Blue Sky. Thereafter, Jayde, Helario and Wilfredo
withdrew their complaints for illegal dismissal against the company. Arlene and
Joseph, however, pursued their claims. Nonetheless, Blue Sky construed the
result of the entrapment operation to mean that there was a conspiracy among
the five employees to commit theft of company property. In the reply filed by
the petitioners to the respondents' position paper filed before the LA, the
former alleged that in a letter, Jayde, Helario and Wilfredo implicated Arlene
and Joseph as participants and conspirators in the commission of theft.[34]
However, we note that the petitioners' allegation was bare since the letter supposedly
written by Jayde, Helario and Wilfredo was not offered as evidence. Further,
Blue Sky alleged that the ultrasound probe was among the items found missing in
the inventory conducted in December 2004. We observe though that the employees
were dismissed for alleged theft of six intensifying screens. In the
termination notices, no references were made at all to a missing ultrasound
probe.
Further, we notice that both parties mentioned a certain Boy who
conducted the inventory in October 2004. There is no dispute that at that time,
the six intensifying screens were still completely accounted for. Further, Arlene and Joseph claimed that it
was Lorna who had control and custody of the stocks as she was the warehouse
supervisor. Boy and Lorna were not called upon by either of the parties to
corroborate their claims. Boy and Lorna could have provided important
information as to the time line and the manner the intensifying screens were
lost. If Boy and Lorna remain under Blue Sky's employ, it is the company
which is in a better position to require the two to execute affidavits relative
to what they know about the missing screens.
The petitioners also argue that if Arlene and Joseph had
not been grossly negligent in the performance of their duties, Blue Sky would
not have incurred the loss. We observe though that in the notices sent to
Arlene and Joseph, first charging them with theft, and later, informing them of
their dismissal from service, gross negligence was not stated therein as a
ground. Hence, Arlene and Joseph could not have defended themselves against the
charge of gross negligence. They cannot be dismissed on that ground lest due
process be violated.
Only
the following had been established without dispute: (a) the fact of loss of the
six intensifying screens; (b) an entrapment operation was successfully
conducted by the police operatives who caught Jayde and Helario in the act of
attempting to sell an ultrasound probe which allegedly belonged to Blue Sky;
and (c) Jayde, Helario and Wilfredo filed their affidavits of desistance to
withdraw their complaints for illegal dismissal against Blue Sky while Arlene
and Joseph pursued their complaints.
In its November 29, 2007
Decision, the NLRC found that Arlene and Joseph, a stock clerk and a warehouse
helper, respectively, did not have unlimited access to or custody over Blue
Sky's property. The CA, in the decision and resolution assailed herein, while
ordering the reinstatement of the November 29, 2007 NLRC Decision, found that
Arlene and Joseph exercised custody over company property. Be that as it may,
we observe that the nature of Arlene and Joseph's regular duties while under
Blue Sky's employ and their specific participation in or knowledge of the theft of
the intensifying screens remain uncertain. Thus, whether or not Arlene
and Joseph had actual custody over company property, we agree with the CA that
the petitioners had failed to establish by substantial evidence the charges
which led to Arlene and Joseph's dismissal from service.
While we empathize with Blue Sky's loss and understand that its
actions were merely motivated by its intent to protect the interests of the
company, no blanket authority to terminate all employees whom it merely
suspects as involved in the commission of theft resides in its favor. We thus
reiterate the doctrine enunciated in Functional, Inc.[35]
that the employers case succeeds or fails on the strength of its evidence and
not on the weakness of that adduced by the employee, in keeping with the
principle that the scales of justice should be tilted in favor of the latter in
case of doubt in the evidence presented by them.
Notwithstanding our affirmation of the CA's finding that
the petitioners had failed to discharge the burden of proof imposed upon them to justify the dismissal
of Arlene and Joseph, we deem it proper to modify the assailed decision and
resolution in the manner to be discussed hereunder.
Blue Sky committed no
impropriety in imposing preventive suspension against Arlene and Joseph pending
investigation of the theft allegedly committed against the company.
We, however, find no merit in the challenge made by Arlene
and Joseph against the legality of the preventive suspension imposed by Blue
Sky upon them pending the investigation of the alleged theft.
In Mandapat v. Add Force Personnel Services, Inc.,[36]
we explained that preventive suspension may be legally imposed on an employee
whose alleged violation is the subject of an investigation. The purpose of the suspension
is to prevent an employee from causing harm or injury to his colleagues and to
the employer. The maximum period of suspension is 30 days, beyond which the
employee should either be reinstated or be paid wages and benefits due to him.
In Arlene and Joseph's case, Blue Sky issued to them notices
to explain on February 3, 2005. They submitted their written explanation the
day after and they were dismissed from service on February 5, 2005. While we do
not agree with Blue Sky's subsequent decision to terminate them from service,
we find no impropriety in its act of imposing preventive suspension upon the
respondents since the period did not exceed the maximum imposed by law and
there was a valid purpose for the same.
In lieu of
reinstatement, Arlene and Joseph are entitled to an award of separation pay.
If reinstatement proves impracticable, and hardly in the best
interest of the parties, perhaps due to the lapse of time since the employees dismissal,
or if the employee decides not to be reinstated, the latter should be awarded
separation pay in lieu of reinstatement.[37]
In the case at bar, Arlene and Joseph were dismissed from
service on February 5, 2005. We find that the lapse of more than seven years
already renders their reinstatement impracticable. Further, from the stubborn
stances of the parties, to wit, the petitioners' insistence that dismissal was
valid on one hand, and the respondents' express prayer for the payment of
separation pay on the other, we find that reinstatement would no longer be in
the best interest of the contending parties.
Arlene
and Joseph are entitled to the payment of ECOLA, but not to 13th
month, service incentive leave and overtime pay.
It is well-settled that in labor
cases, the burden of proving payment of monetary claims rests on the employer.[38]
We find nothing in the
records to indicate that the petitioners had indeed paid ECOLA to Arlene and
Joseph.
In
the resolution issued on January 30, 2009, the NLRC found proof by way of the
petitioners' annex to their position paper that Arlene and Joseph already
received their 13th month and service incentive leave pay for the
year 2005.[39]
The respondents had not specifically refuted the NLRC's findings, hence, we
sustain the same.
Anent the respondents' claim for overtime pay, we find no
ample basis to grant it as they had not offered any proof to show that they in
fact rendered such service.
The decision rendered by
the NLRC on November 29, 2007, which the CA affirmed, did not award in favor of
Arlene and Joseph moral and exemplary damages. Consequently, we delete the
award in the respondents' favor of ten percent attorney's fees.
If there is no evidence to show that the dismissal of an employee
had been carried out arbitrarily, capriciously and maliciously and with
personal ill-will, moral damages cannot be awarded.[40]
If moral damages cannot be awarded, the consequence is that there can also be
no award of exemplary damages and attorney's fees.[41]
In the case at bar, albeit we find Arlene and Joseph's dismissal
from service as illegal, we cannot attribute bad faith on the part of Blue Sky
which merely acted with an intent to protect its interest. Hence, we find as
lacking in basis the NLRC's award of ten percent attorney's fees in the respondents'
favor.
Jose and Linda cannot be
held solidarily liable for the dismissal of Arlene and Joseph in the absence of
proof that they acted with malice and bad faith.
As a general rule, a corporate officer cannot be held liable for
acts done in his official capacity because a corporation, by legal fiction, has
a personality separate and distinct from its officers, stockholders, and members.[42]
In illegal dismissal cases, corporate officers may only be held solidarily
liable with the corporation if the termination was done with malice or bad
faith.[43]
We find that the aforementioned circumstance did not obtain in the case of Jose
and Linda relative to Arlene and Joseph's dismissal from service.
IN VIEW OF THE FOREGOING, the October 26, 2009
Decision and December 14, 2009 Resolution issued by the Court of Appeals,
finding that the dismissal from service of respondents Arlene and Joseph was
illegal and awarding in their favor full backwages, are AFFIRMED but
with the following MODIFICATIONS:
(a) Blue Sky is directed to
pay ECOLA and separation pay to the respondents;
(b) The award in favor of the respondents of ten percent attorney's fees made by the
National Labor Relations Commission in its November 29, 2007 Decision and which
was affirmed by the Court of Appeals in the herein assailed decision and
resolution is deleted; and
(c) Pursuant to our ruling in Eastern Shipping Lines,
Inc. v. CA,[44]
an
interest of 12% per annum is imposed on the total sum of the monetary award to
be computed from the date of finality of this Decision until full satisfaction
thereof.
The case
is remanded to the National Labor Relations Commission which is hereby ORDERED to COMPUTE the
monetary benefits awarded in accordance with this Decision and to submit its
compliance thereon within thirty (30) days from notice hereof.
SO ORDERED.
BIENVENIDO L. REYES
Associate
Justice
WE CONCUR:
ANTONIO T.
CARPIO
Associate Justice
|
ARTURO D. BRION Associate Justice |
JOSE Associate Justice |
MARIA
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.
ANTONIO T.
CARPIO
Associate Justice
Chairperson, Second 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 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 Courts Division.
RENATO
C. CORONA
Chief Justice
[1] Rollo, pp. 28-48.
[2] Penned by Associate Justice Myrna Dimaranan Vidal, with Associate Justices Jose Catral Mendoza (now a member of this court) and Marlene Gonzales-Sison, concurring; id. at 10-23.
[3]
[4]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20]
[21]
[22]
[23] Supra note 2, at 18-22.
[24] Supra note 1, at 35.
[25] 443 Phil.
878 (2003).
[26] 208 Phil.
591 (1983).
[27] Duldulao
v. CA, G.R. No. 164893, March 1, 2007, 517
SCRA 191, 198. (Citations omitted)
[28] Rollo, pp. 236-246.
[29] Mercado v.
AMA Computer College-Paraaque City, Inc., G.R.
No. 183572, April 13, 2010, 618 SCRA 218, 233.
[30] AMA Computer College-East Rizal v. Ignacio, G.R. No. 178520, June 23, 2009, 590 SCRA 633, 651.
[31] G.R. No.
176377, November 16, 2011. (Citations omitted)
[32] G.R. No. 182299, February 22, 2010, 613 SCRA 351.
[33] Rollo, pp. 118 and 120.
[34]
[35] Supra note 31.
[36] G.R. No.
180285, July 6, 2010, 624 SCRA 155.
[37] St. Lukes
Medical Center, Inc. and Robert Kuan v.
Notario, G.R. No. 152166, October 20,
2010, 634 SCRA 67, 80-81. (Citation omitted)
[38] Smart Communications, Inc. v. Astorga, G.R. No. 148132, January 28, 2008, 542 SCRA 434,
453. (Citation omitted)
[39] Supra note 21, at 193.
[40] Chaves v.
NLRC, G.R. No. 166382, June 27, 2006, 493
SCRA 434.
[41] Pacquing
v. Coca-Cola Philippines, Inc., G.R. No.
157966, January 31, 2008, 543 SCRA 344, 363. (Citation omitted)
[42] Culili v.
Eastern Telecommunications Philippines, Inc., G.R. No. 165381, February 9, 2011, 642 SCRA 338, 365.
[43]
[44] G.R. No. 97412, July 12, 1994, 234 SCRA 78.