Labor Relations

1.Leyte Geothermal Power Progressive Employees Union-ALU-TUCP vs. Philippine National Oil Company Energy Development Corporation,646 SCRA 658, March 30, 2011(2 kinds of project employees)

Facts: Respondent PNOC-EDC is a government-owned and controlled corporation engaged in exploration, development, utilization, generation and distribution of energy resources like geothermal energy.Petitioner is a legitimate labor organization. Among respondents geothermal projects is the Leyte Geothermal Power Project.

Thus, the respondent hired and employed hundreds of employees on a contractual basis, whereby, their employment was only good up to the completion or termination of the project and would automatically expire upon the completion of such project.

Majority of the employees hired by [respondent] in its Leyte Geothermal Power Projects had become members of petitioner. In view of that circumstance, the petitioner demands from the [respondent] for recognition of it as the collective bargaining agent of said employees and for a CBA negotiation with it. However, the [respondent] did not heed such demands of the petitioner. Sometime in 1998 when the project was about to be completed, the [respondent] proceeded to serve Notices of Termination of Employment upon the employees who are members of the petitioner.

Issue: Whether the officers and members of petitioner Union are project employees of respondent

Ruling: Yes. In the case at bar, the records reveal that the officers and the members of petitioner Union signed employment contracts indicating the specific project or phase of work for which they were hired, with a fixed period of employment.

The landmark case of ALU-TUCP v. NLRC instructs on the two (2) categories of project employees: Firstly, a project could refer to a particular job or undertaking that is within the regular or usual business of the employer company, but which is distinct and separate, and identifiable as such, from the other undertakings of the company. Such job or undertaking begins and ends at determined or determinable times. The typical example of this first type of project is a particular construction job or project of a construction company. A construction company ordinarily carries out two or more [distinct] identifiable construction projects: e.g., a twenty-five-storey hotel in Makati; a residential condominium building in Baguio City; and a domestic air terminal in Iloilo City. Employees who are hired for the carrying out of one of these separate projects, the scope and duration of which has been determined and made known to the employees at the time of employment, are properly treated as project employees, and their services may be lawfully terminated at completion of the project.

The term project could also refer to, secondly, a particular job or undertaking that is not within the regular business of the corporation. Such a job or undertaking must also be identifiably separate and distinct from the ordinary or regular business operations of the employer. The job or undertaking also begins and ends at determined or determinable times.

The litmus test to determine whether an individual is a project employee lies in setting a fixed period of employment involving a specific undertaking which completion or termination has been determined at the time of the particular employees engagement.

In this case, as previously adverted to, the officers and the members of petitioner Union were specifically hired as project employees for respondents Leyte Geothermal Power Project located at the Greater Tongonan Geothermal Reservation in Leyte. Consequently, upon the completion of the project or substantial phase thereof, the officers and the members of petitioner Union could be validly terminated.

Petitioner Unions members employment for more than a year does equate to their regular employment with respondent.

2.Exodus International Construction Corporation vs. Biscocho,644 SCRA 76, February 23, 2011 When may project employees be considered as regular employees

Facts:Petitioner is a duly licensed labor contractor for the painting of residential houses, condominium units and commercial buildings. Petitioner Antonio P. Javalera is the President and General Manager of Exodus.

On February 1, 1999, Exodus obtained from Dutch Boy Philippines, Inc. (Dutch Boy) a contract for the painting of the Imperial Sky Garden located at Ongpin Street, Binondo, Manila. On July 28, 1999, Dutch Boy awarded another contract7 to Exodus for the painting of Pacific Plaza Towers in Fort Bonifacio, Taguig City. In the furtherance of its business, Exodus hired respondents as painters on different dates with the corresponding wages.

On November 27, 2000, Guillermo, Fernando, Ferdinand, and Miguel filed a complaint for illegal dismissal and non-payment of holiday pay, service incentive leave pay, 13th month pay and night-shift differential pay. He claimed that he was dismissed from the service on September 12, 2000 while Guillermo, Fernando, Ferdinand, and Miguel were orally notified of their dismissal from the service on November 25, 2000.

Petitioners denied respondents allegations. As regards Gregorio, petitionersaverredhe absented himself from work and applied as a painter with SAEI-EEI which is the general building contractor of Pacific Plaza Towers. Since then, he never reported back to work.Guillermo absented himself from work without leave. When he reported for work the following day, he was reprimanded for being Absent Without Official Leave (AWOL). Because of the reprimand, he worked only half-day and thereafter was unheard of until the filing of the instant complaint. Fernando, Ferdinand, and Miguel were caught eating during working hours for which they were reprimanded by their foreman. Since then they no longer reported for work.

Labor Arbiter- exonerating petitioners from the charge of illegal dismissal as respondents chose not to report for work and ordered the reinstatement of the respondents. This decision was affirmed by the NLRC and CA. Hence, this petition.

Issue: whether the respondents are regular employees and hence, illegally dismissed.

Ruling:There was no dismissal in this case, hence, there is no question that can be entertained regarding its legality or illegality. There was also no abandonment of work on the part of the respondents. It is a settled rule that mere absence or failure to report for work xxx is not enough to amount to abandonment of work. Abandonment is the deliberate and unjustified refusal of an employee to resume his employment.

There are two types of employees in the construction industry. The first is referred to as project employees or those employed in connection with a particular construction project or phase thereof and such employment is coterminous with each project or phase of the project to which they are assigned. The second is known as non-project employees or those employed without reference to any particular construction project or phase of a project.

Assuming that respondents were initially hired as project employees, petitioners must be reminded of our ruling in Maraguinot, Jr. v. National Labor Relations Commission, 284 SCRA 539 (1998), that a project employee xxx may acquire the status of a regular employee when the following factors concur: 1. There is a continuous rehiring of project employees even after cessation of a project; and 2. The tasks performed by the alleged project employee are vital, necessary and indespensable to the usual business or trade of the employer.

In this case, the evidence on record shows that respondents were employed and assigned continuously to the various projects of petitioners. As painters, they performed activities which were necessary and desirable in the usual business of petitioners, who are engaged in subcontracting jobs for painting of residential units, condominium and commercial buildings. As regular employees, respondents are entitled to be reinstated without loss of seniority rights.

3.Euro-Linea, Phils., Inc. vs. NLRC,156 SCRA 78, December 01, 1987 (duration and coverage security of tenure)

Facts: Petitioner hired Pastoral as shipping expediter on a probationary basis for a period of six months ending February 18, 1984. However, prior to hiring by petitioner, Pastoral had been employed by Fitscher Manufacturing Corporation also as shipping expediter for more than one and a half years. Pastoral was absorbed by petitioner but under a probationary basis.

On February 4, 1984, Pastoral received a memorandum dated January 31, 1984 terminating his probationary employment effective also on February 4, 1984 in view of his failure "to meet the performance standards set by the company." To contest his dismissal, Pastoral filed a complaint for illegal dismissal against petitioner on February 6,1984.

Issue: whether or not the NLRC acted with grave abuse of discretion amounting to excess of jurisdiction in ruling against the dismissal of the respondent, a temporary or probationary employee, by his employer (Petitioner).

Ruling: Although a probationary or temporary employee has a limited tenure, he still enjoys the constitutional protection of security of tenure. During his tenure of employment or before his contract expires, he cannot be removed except for cause as provided for by law.

In the case at bar, Petitioner not only failed to present sufficient evidence to substantiate the cause of private respondent's dismissal, but likewise failed to cite particular acts or instances to show the latter's poor performance. Furthermore, what makes the dismissal highly suspicious is the fact that while petitioner claims that respondent was inefficient, it retained his services until the last remaining two weeks of the six months probationary employment.

No less important is the fact that private respondent had been a shipping expediter for more than one and a half years before he was absorbed by petitioner. It therefore appears that the dismissal in question is without sufficient justification.

4.Cielo vs. NLRC,193 SCRA 410, January 28, 1991(probationary employment)

Facts:The petitioner is a truck driver who claims he was illegally dismissed by the private respondent, the Henry Lei Trucking Company. The Labor Arbiter found for him and ordered his reinstatement with back wages. On appeal, the decision was reversed by the NLRC, which held that the petitioners employment had expired under a valid contract.

It appears that an agreement was supposed to have commenced on June 30, 1984, and to end on December 31, 1984. On December 22, 1984, however, the petitioner was formally notified by the private respondent of the termination of his services on the ground of expiration of their contract. Soon thereafter, on January 22, 1985, the petitioner filed his complaint with the Ministry of Labor and Employment.

In his position paper, the petitioner claimed he started working for the private respondent on June 16, 1984, and having done so for more than six months had acquired the status of a regular employee. As such, he could no longer be dismissed except for lawful cause. He also contended that he had been removed because of his refusal to sign, as required by the private respondent, an affidavit (which appears to be a quitclaim/waiver of benefits)

Issue: whether petitioner is a probationary employee

Ruling: The agreement in question had such a purpose and so was null and void ab initio.The private respondents argument that the petitioner could at least be considered on probation basis only and therefore separable at will is self-defeating. The Labor Code clearly provides as follows:

Art. 281. Probationary employment.Probationary employment shall not exceed six (6) 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 on 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.

There is no question that the petitioner was not engaged as an apprentice, being already an experienced truck driver when he began working for the private respondent. Neither has it been shown that he was informed at the time of his employment of the reasonable standards under which he could qualify as a regular employee. It is plain that the petitioner was hired at the outset as a regular employee. At any rate, even assuming that the original employment was probationary, the Labor Arbiter found that the petitioner had completed more than six months service with the trucking company and so had acquired the status of a regular employee at the time of his dismissal.

5.Surigao del Norte Electric Cooperative vs. NLRC,309 SCRA 233, June 28, 1999(serious misconduct or willful disobedience; requisites)

Facts: With no action taken by petitioner cooperative on her letter-request (asking for separation benefits and incentives), Quinto filed a Complaint for Illegal Dismissal with prayer for Reinstatement and Payment of Full Backwages, Damages and Attorneys Fees against petitioner cooperative. This was dismissed for being barred by prescription.

On account of the filing of the illegal dismissal case against petitioner cooperative, based largely on private respondents report, petitioner Balugo issued a Memorandum to private respondent.

Private respondent submitted her Written Explanation and reasoned out that it was inherent in her job as Personnel Officer to assist Management in formulating and evaluating plans, policies and procedures on personnel related matters, and recommend to Management and (the) Board of Directors wage, salary and other benefits.

The Board, thus, found private respondents act of releasing and/or divulging the contents of her internal memorandum to Quinto as contrary to norms of decency as far as protection of the interest of the cooperative is concerned as well as violative of Section 9 of their Code of Ethics and Discipline. The Board Resolution was followed by a letter from petitioner Balugonotifying private respondent that she had been terminated from the service for cause. In dismissing private respondent, petitioner cooperative relied on the following two grounds: (1) serious misconduct based on private respondents unauthorized review of Quintos case; and (2) loss of confidence because of private respondents breach of the rules of confidentiality, by furnishing Quinto a copy of her internal memorandum.

Hence, the filing of illegal dismissal case by the private respondent.

Issue:whether or not petitioner cooperative was guilty of illegal dismissal.

Ruling: Yes. There is no basis for petitioner cooperatives charge of serious misconduct on the part of private respondent. Misconduct is improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment.

Tested by these standards, private respondents review of Quintos case hardly qualifies as serious misconduct. As acknowledged by petitioners, private respondent, as Personnel Officer, holds a managerial position. As such, her authority is not merely routinary or clerical in nature but requires independent judgment. Indeed, those occupying managerial positions are considered vested with a certain amount of discretion and independent judgment.

It is established that Quinto was a former employee of petitioner cooperative who was asking for a reconsideration of her request for separation pay benefits. It cannot be denied that this matter, i.e., recommendations for separation pay benefits, is within private respondents line of work as Personnel Officer. Thus, when Quinto approached private respondent to request for assistance on her case, it was acceptable for the latter to act thereon even if the first request of Quinto was not addressed to her but to the General Manager. As Personnel Officer, private respondent could very well take charge of matters involving employees, even former ones, and proceed to make recommendations thereon. This is precisely what private respondent did. To require private respondent to wait for management authorization before acting on matters already obviously within her job jurisdiction would be tantamount to making her a mere rank and file employee stripped of discretionary powers.

To be a valid ground for dismissal, loss of trust and confidence must be based on a willful breach of trust and founded on clearly established facts. A breach is willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. It must rest on substantial grounds and not on the employers arbitrariness, whims, caprices or suspicion, otherwise, the employee would eternally remain at the mercy of the employer.

6.Escobin vs. National Labor Relations Commission, 289 SCRA 48(1998) [G.R. No. 118159. April 15, 1998.]

Facts: Respondent PEFTOK Integrated Services, Inc., (PISI for short), is a duly licensed watchman and protective agency while respondent UP-NDC Basilan Plantations, Inc. Complainants are bona fide members of the Basilan Security Force Association hired by PISI in Sta. Clara, Lamitan, Basilan, to work as guards in UP-NDC Basilan Plantations, Inc. premises. Respondent UP-NDC Basilan Plantations, Inc. ordered the reduction of the contracted guards assigned in the plantation and issued a memorandum placing the fifty-nine (59) affected guards under reserved or floating status. Subsequently, the guards placed on reserved or floating status were instructed by registered letter to report to PISI Head Office for posting to PISI clients within the Metro-Manila area not later than April 30, 1991. After sending letters to the guards, they did not bother to reply hence, by their failure to report to PISI Head Office for posting, as ordered, they were dismissed on ground of insubordination or willful disobedience to lawful orders of their employer. After having been terminated, the guards explained that they live in Basilan and they have never traveled beyond Visayas and Mindanao, not provided by PISI with fare money as they cannot, on their own, finance their travel from Basilan to Manila. That in truth, complainants said they were constructively dismissed by PISI. For which reason, complainants prayed that the Labor Arbiter declare their dismissal as illegal and consequently they should be paid separation pay (in lieu of reinstatement), backwages, moral and exemplary damages, attorneys fees and litigation costs. Hence this petition.

Issue: Whether there is abandonment on the part of the petitioners.

Ruling: No. As a just and valid cause for dismissal, willful disobedience involves the violation of a rule, order or instruction which is (1) reasonable and lawful, (2) sufficiently known to the employee, and (3) connected with the duties which the employee has been engaged to discharge. Abandonment, on the other hand, requires a showing that an employee (1) deliberately and unjustly refuses to resume his work and (2) has no intention to return to it.

Abandonment, as a just and valid cause for dismissal, requires a deliberate, unjustified refusal of an employee to resume his work, coupled with a clear absence of any intention of returning to his work. No evidence was presented to establish that petitioners relinquished their jobs. Denying they abandoned their work, petitioners contend that it was private respondent agency which deserted them by failing to communicate with them for over two months, from February 1, 1991 to April 8, 1991, and that the directive to make them report to Manila was only a ruse to terminate their services. Although a letter dated September 13, 1991 and signed by a certain Jose E. Fernandez declined the offer to work outside Basilan despite the receipt of transportation allowance, such letter cannot be attributed to petitioners because Fernandez did not represent any of them. That petitioners did not pray for reinstatement in their pleadings is not proof of abandonment. In fact, petitioners contention is that private respondent effected constructive dismissal, which is incompatible with abandonment.

7.KAMS INTERNATIONAL INC., ESVEE APPAREL MFG. INC., and/or THANWARDASH JESWANI and KAMLESH JESWANI,petitioners, vs.NATIONAL LABOR RELATIONS COMMISSION, FIRST DIVISION, and MERCEDITA T. TORREJOS,respondents. [G.R. No. 128806.September 28, 1999] BELLOSILLO, J.

FACTS: Private respondent was employed as a utility worker in the petitioners company. Her employmentwas terminated by petitioner for allegedly abandoning her job. Private respondent filed a complaint for illegal dismissal against petitioners with the arbitration branch of the NLRC in Manila. According to the petitioners, when private respondent was caught trying to smuggle out two yards of fabric, the management decided to restrict her activities. Respondent reportedly resented it. Thereafter, malicious rumors allegedly spread in the work place concerning the private affairs of the petitioners. Respondent was singled out as the source of such rumors and her attention was called by the Jeswanis (Her employers). Instead of being apologetic, respondent allegedly offered to resign for a price and when petitioners refused to give in to her demands, she walked out on them. Since then, she never reported back for work. Thus, petitioners declared that they could not in any way be liable for illegal dismissal.

The Labor Arbiter rendered a decision holding that private respondent was illegally dismissed and ordered her reinstatement or give her separation pay. Petitioners appealed to the NLRC, but their appeal was dismissed. Petitioners now alleged in this petition that the NLRC committed grave abuse of discretionwhen it affirmed the Labor Arbiters decision holding that private respondent was illegally dismissed.

ISSUE: Whether private respondent was terminated for abandonment.

RULING: No. According to the Court, petitioners failed to adduce evidence on any overt act of private respondent showing an actual intent to abandon her employment. The fact that she filed a case for illegal dismissal against petitioners negated any intention on her part to forsake her work. The Court also emphasized that the termination of an employee must be effected in accordance with law,i.e.,the employer must comply with the twin requirements of due process. In the present case, no written notice was sent by petitioners informing respondent that she had been terminated due to abandonment of work. Said failure on the part of the petitioners underscored the irregularity of private respondents dismissal.

For abandonment to exist, it is essential that (a) the employee must have failed to report for work or must have been absent without valid or justifiable reason; and, (b) there must have been a clear intention to sever the employer-employee relationship manifested by some overt acts. Abandonment, as a just and valid ground for dismissal means the deliberate and unjustified refusal of an employee to resume his employment. The burden of proof is on the employer to show unequivocal intent on the part of the employee to discontinue employment. An intent cannot be lightly inferred or legally presumed from certain ambivalent acts. For abandonment to be a valid ground for dismissal, two elements must be proved: the intention of an employee to abandon, coupled with an overt act from which it may be inferred that the employee has no more intent to resume his work.

8.TACLOBAN SAGKAHAN RICE and CORN MILLS, CO., and/or TAN CHENG PIAN (alias PIANA), Owner,petitioners,vs. THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION, SECOND DIVISION, THE HONORABLE EXECUTIVE LABOR ARBITER, REGIONAL ARBITRATION BRANCH NO. VIII, NATIONAL LABOR RELATIONS COMMISSION, TACLOBAN CITY, and, CARLITO CODILAN, MAXIMO DOCENA, TEOFILO TRANGRIA, EUGENIO GO, and, REYNALDO TULIN,respondents. [G.R. No. 73806 March 21, 1990.] PARAS, J.

FACTS: Private respondents were all regular employees of petitioners. However, sometime in 1983, petitioner terminated their employment without any reason. Thus, private respondents filed a complaint for illegal dismissal with the NLRC. The Executive Labor Arbiter ordered petitioners to pay private respondents their separation pay. Petitioners claimed that payment of separation pay is not justified because the milling operation would be temporarily stopped for lack of palay to be milled for the season and such temporary stoppage of operation is a right which is within his management prerogative to preserve the existence of the company.Also, petitioner alleged that respondents are not regular employees but merely seasonal employees and further alleged that respondents are guilty of abandonment despite of repeated demands by the petitioner for the respondent to return to work.

ISSUE: Whetherprivate respondents were illegally dismissed by petitioners and whether they are guilty of abandonment.

RULING: Yes. First, we must determine the status of the employees. The services performed by private respondents are not seasonal in nature. While it may be true that the harvest of palay is seasonal, the milling operations which is the main business of petitioners are not seasonal. It is clear thatthey performed activities usually necessary or desirable in the usual business of the former. Also, considering the number of years that they have work which is 25 years, private respondents have long attained the status of regular employees as defined under Art. 280 of the Labor Code.

Private respondents were dismissed illegally. For, their termination does not fall under any of the just causes provided for in Arts. 282 and 283 of the Labor Code. Under Art. 283, an employer may terminate the employment of any employee by reason of the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closure or cessation of operation of the establishment or undertaking.In the case at bar, it has not been established that petitioners' rice mill has completely ceased operation. Neither has it been shown that petitioners' business was losing or having financial reverses in its operations that necessitated reduction in the work force. The evidence on record thus reveals that private respondents were illegally terminated.

The refusal of private respondents to return to work despite petitioners' offer of reinstatement does not constitute voluntary abandonment of work.

Petitioners' offer to reinstate private respondents was obviously an attempt to escape liability from illegally terminating the latter. The offer was made after private respondents had already filed their complaints for illegal dismiss. Moreover, abandonment of work is inconsistent with the filing of said complaint.

SYLLABUS- GROSS AND HABITUAL NEGLIGENCEAs a ground to terminate employment, Article 282(b) provides that negligence must not only be gross but must be both gross and habitual in character to justify depriving an employee of his means of livelihood. Thus, a single or an isolated act of negligence which is not gross and habitual in nature will not justify termination of services. Under the Labor Code, simple negligence is not a ground for dismissal of an employee.

9.IBM PHILIPPINES, INC., VIRGILIO L. PEA, and VICTOR V. REYES,petitioners, vs.NATIONAL LABOR RELATIONS COMMISSION and ANGEL D. ISRAEL,respondents. [G.R. No. 117221.April 13, 1999] MENDOZA,J.:

FACTS: Respondent Israel, who had been in petitioner companys employ for 16 years filed a complaint for illegal dismissal after receipt of a letter from petitioner Reyes terminating his services on grounds of tardiness and absenteeism. Israel claimed that he was not given the opportunity to be heard and was summarily dismissed. Petitioners, on the other hand, claimed that he was given sufficient warning and opportunity to reform his ways in several conferences held between them and through the companys internal electronic main (e-mail) system.These, however, were not identified or authenticated by any official of the company and unsigned neither by the sender or the receiver.

The Labor Arbiter, though finding that termination was for just cause, awarded separation pay. However, prior to the release of the decision, Israel presented DTRs signed by Reyes himself for the periods correspondent to the dates of the computer print-outs showing that he did not incur any unexcused absences, that he was not late on any day within the period and that no deduction was made from his salary on account of tardiness or absences.

ISSUE: Whether respondent should be dismissed on the ground of habitual tardiness and absenteeism.

RULING: No. The burden of proving that the dismissal was for just cause is on the employer and cannot rely on any admission by the employee implied from his failure to deny the charges.Even assuming the charges of habitual tardiness and absenteeism were true, such offenses do not warrant private respondent's dismissal. He has not been shown to have ever committed any infraction of company rules during his sixteen-year stint in the company. Although it is alleged that he failed to attend important client meetings and gave false representations to a valued client to cover his tracks, there is no record finding him guilty of such offenses.

Dismissal has always been regarded as the ultimate penalty. The fact that lapses in private respondent's attendance record may have occurred only during his final year in the company, after a long period of exemplary performance, makes petitioners' contention dubious. While it is that true long years of service is no guarantee against dismissal for wrongdoing, at least the employee's record does provide an index to his work. In case doubt exists between the evidence presented by the employer and that presented by the employee, the scales of justice must be tilted in favor of the latter.

10.ANANIAS PANDAY,petitioner,vs. NATIONAL LABOR RELATIONS COMMISSION and LUZON MAHOGANY TIMBER INDUSTRIES, INC.,respondents. [G.R. No. 67664 May 20, 1992] GUTIERREZ, JR.,J.:

FACTS: Complainant was hired by the respondent as Branch Accountant. Sometime in 1977, complainant was called by Martin Gaw, the owner-manager of respondent who instructed him to cut off the living allowance of the employees starting January 1, 1978. He requested that a memorandum be issued so would not be blame by the workers. The manager got angry and scolded him. From the time of that incident complainant was deprived of free light. He was no longer given any accounting work. All that was left for him to do was the simple clerical job.

In 1979, complainant filed a request for vacation leave with pay for 15 days for medical treatment of his son. Upon his return to Isabela, he asked for his salaries only to learn that his application for leave was disapproved. Hence, he filed a complaint for illegal dismissal. The Office of the Minister found and ruled that petitioner Panday was constructively dismissed from the service by the private respondent. Due to the failure of respondents to file a comment, the actual findings was affirmed by the court. The only complaint of the petitioner which remains is his claim for reinstatement with backwages.

ISSUE: Whether petitioner is entitled for reinstatement with backwages.

RULING: No. Complainant as branch accountant occupied a position involving trust and confidence and in the light of the estranged relation between the complainant and the respondent that may not permit the full restoration of an employment relationship based on 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.

Reinstatement in the present case is no longer possible not only because of the strained relationship between the employee and the employer but also because of the length of time that has passed from the date the incident occurred to its resolution (1977-1985).

Considering the length of time that has transpired between the occurrence of the employee's cause of action and its resolution and the circumstances, the court grant backwages and separation pay in lieu of reinstatement.The court adopted the policy of fixing the amount of backwages to a just and reasonable level without qualification and deduction to do away with the attendant delay in awarding backwages because of the extended hearing to prove the earnings elsewhere of each and every employee. Under this policy the court have consistently awarded backwages to the maximum of only three (3) years. However, considering the peculiar circumstances of the present case, the three-year backwages rule cannot apply. Neither Republic Act 6715 shall apply which provides that backwages shall be awarded to cover the period from dismissal to the employer's date of actual reinstatement because said law has no retroactive effect. Instead, the court adopted the principle where five years backwages were awarded "on account of the employer's unfair labor practices and the long number of years during which the workers have been deprived of their work and their wages."

11.PRUDENTIAL GUARANTEE AND ASSURANCE EMPLOYEE LABORUNIONand SANDY T. VALLOTA, Petitioners, - versus - NATIONAL LABOR RELATIONS COMMISSION, PRUDENTIAL GUARANTEE AND ASSURANCE INC., and/or JOCELYN RETIZOS,Respondents [G.R. No.185335June 13, 2012] MENDOZA, J.

FACTS: Vallota commenced his employment with respondent as a Junior Programmer assigned to the Electronic Data ProcessingDepartment. In 2005, Vallota was elected to the Board of Directors of theUnion.During an on-the-spot security check in the IT Department, highly confidential files were found in Vallotas computer. A memorandum was issued placing him under preventive suspension for 30 days. The same was extended and, eventually, after he file his response to the charges, he was given a notice of termination of his employment effectiveon the ground of loss of trust and confidence.Thus, petitioner filed a case for illegal dismissal. The LA ruled in favor of petitioners. However, NLRC granted the respondents motion for reconsideration and reversed and set aside the decision of the LA.

ISSUE: Whether petitioner was validly dismissed on the ground of loss of trust and confidence.

RULING: It is clear that Article 282(c) of the Labor Code allows an employer to terminate the services of an employee for loss of trust and confidence.Thefirst requisite for dismissal on the ground of loss of trust and confidenceis that the employee concerned must be one holding a position of trust and confidence.There are two (2) classes of positions of trust. The first class consists of managerial employees.They are defined as those vested with the powers or prerogatives to lay down management policies and to hire, transfer suspend, lay-off, recall, discharge, assign or discipline employees or effectively recommend such managerial actions.The second class consists of cashiers, auditors, property custodians, etc.They are defined as those who in the normal and routine exercise of their functions, regularly handle significant amounts of money or property.Thesecond requisiteis that there must be an act that would justify the loss of trust and confidence. Loss of trust and confidence to be a valid cause for dismissal must be based on a willful breach of trust and founded on clearly established facts.

Vallotas position as Junior Programmer is analogous to the second class of positions of trust and confidence. Though he did not physically handle money or property, he became privy to confidential data or information by the nature of his functions.

While the law and this Court recognize the right of an employer to dismiss an employee based on loss of trust and confidence, the evidence of the employer must clearly and convincingly establish the facts upon which the loss of trust and confidence in the employee is based.

To be a valid ground for dismissal, loss of trust and confidence must be based on a willful breach of trust and founded on clearly established facts. A breach is willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. In this case, there was no other evidence presented to prove fraud in the manner of securing or obtaining the files found in Vallotas computer. In fact, aside from the presence of these files in Vallotas hard drive, there was no other evidence to prove any gross misconduct on his part.

12.Concepcion v Minex Import Corp. [GR 153569, January 24, 2012]

Facts: Respondent Minex Import-Export Corporation (Minex) engaged in the retail of semi-precious stones, selling them in kiosks or stalls installed in various shopping centers within Metro Manila. It employed the petitioner initially as a salesgirl, rotating her assignment among nearly all its outlets. It made her a supervisor but did not grant her any salary increase. Respondent Vina Mariano, an Assistant Manager of Minex, assigned the petitioner to the SM Harrison Plaza kiosk with the instruction to hold the keys of the kiosk. The petitioner and her salesgirls had sales of crystal items totaling P39,194.50. At the close of business that day, they conducted a cash-count of their sales proceeds, including those from the preceding Friday and Saturday, and determined their total for the three days to be P50,912.00. The petitioner wrapped the amount in a plastic bag and deposited it in the drawer of the locked wooden cabinet of the kiosk. The petitioner phoned Vina Mariano to report that the P50,912.00 was missing, explaining how she and her salesgirls had placed the wrapped amount at the bottom of the cabinet the night before, and how she had found upon reporting to work that morning that the contents of the cabinet were in disarray and the money already missing. The petitioner complained against the respondents for illegal dismissal in the Department of Labor and Employment. Minex, through Vina, filed a complaint for qualified theft against the petitioner in the Office of the City Prosecutor in Manila. The labor arbiter ruled in favor of the petitioner that she was illegally dismissed and ordering her reinstatement but on appeal the NLRC reversed the decision declaring that the petitioner had not been dismissed, but had abandoned her job after being found to have stolen the proceeds of the sales; and holding that even if she had been dismissed, her dismissal would be justifiable for loss of trust and confidence in the light of the finding of probable cause by the DOJ and the City Prosecutor and the filing of the information for qualified theft against her. The CA also upheld the decision of the NLRC, hence, this petition.

Issue: Whether there is a just cause for the dismissal of the petitioner due to a criminal case filed against her.

Ruling: Yes. In its1941 ruling inNational Labor Union, Inc. v. Standard Vacuum Oil Company,the Court expressly stated thus:

xxxTheconviction of an employee in a criminal case is not indispensable to warrant his dismissal by his employer.If there is sufficient evidence to show that the employee has been guilty of a breach of trust, or that his employer has ample reason to distrust him, it cannot justly deny to the employer the authority to dismiss such employee.All that is incumbent upon the Court of Industrial Relations (now National Labor Relations Commission) to determine is whether the proposed dismissal is for just cause xxx.It is not necessary for said court to find that an employee has been guilty of a crime beyond reasonable doubt in order to authorize his dismissal. (Emphasis supplied)

InPhilippine Long Distance Telephone Co.(BLTB Co.) vs. NLRC,11the Court held that the acquittal of the employee from the criminal prosecution for a crime committed against the interest of the employer did not automatically eliminate loss of confidence as a basis for administrative action against the employee; and that in cases where the acts of misconduct amounted to a crime, adismissal might still be properly ordered notwithstanding that the employee was not criminally prosecuted or was acquitted after a criminal prosecution.

InBatangas Laguna Tayabas Bus Co. v. NLRC,12the Court explained further, as follows:Fraud or willful breach of trust reposed upon an employee by his employer is a recognized cause for termination of employment andit is not necessary that the employer should await the employees final conviction in the criminal case involving such fraud or breach of trust before it can terminate the employees services.In fact,even the dropping of the charges or an acquittal of the employee therefrom does not preclude the dismissal of an employee for acts inimical to the interests of the employer.To our mind,the criminal charges initiated by the company against private respondents and the finding after preliminary investigation of theirprima facieguilt of the offense charged constitute substantial evidence sufficient to warrant a findingby the Labor Tribunal of the existenceof a just cause for their termination based on loss of trust and confidence.The Labor Tribunal need not have gone further as to require private respondents conviction of the crime charged, or inferred innocence on their part from their release from detention, which was mainly due to their posting of bail. (Emphasis supplied)

Indeed, the employer is not expected to be as strict and rigorous as a judge in a criminal trial in weighing all the probabilities of guilt before terminating the employee. Unlike a criminal case, which necessitates a moral certainty of guilt due to the loss of the personal liberty of the accused being the issue, a case concerning an employee suspected of wrongdoing leads only to his termination as a consequence. The quantum of proof required for convicting an accused is thus higher proof of guilt beyond reasonable doubt than the quantum prescribed for dismissing an employee substantial evidence. In so stating, we are not diminishing the value of employment, but only noting that the loss of employment occasions a consequence lesser than the loss of personal liberty, and may thus call for a lower degree of proof.

It is also unfair to require an employer to first be morally certain of the guilt of the employee by awaiting a conviction before terminating him when there is already sufficient showing of the wrongdoing. Requiring that certainty may prove too late for the employer, whose loss may potentially be beyond repair. Here, no less than the DOJ Secretary found probable cause for qualified theft against the petitioner. That finding was enough to justify her termination for loss of confidence. To repeat, her responsibility as the supervisor tasked to oversee the affairs of the kiosk, including seeing to the secure handling of the sales proceeds, could not be ignored or downplayed. The employers loss of trust and confidence in her was directly rooted in the manner of how she, as the supervisor, had negligently handled the large amount of sales by simply leaving the amount inside the cabinet drawer of the kiosk despite being aware of the great risk of theft. At the very least, she could have resorted to the SOP of first seeking guidance from the main office on how to secure the amount if she could not deposit in the bank due to that day being a Sunday.

13. CATHEDRAL SCHOOL OF TECHNOLOGY and SR. APOLINARIA TAMBIEN, RVM vs.NATIONAL LABOR RELATIONS COMMISSION and TERESITA VALLEJERA [G.R. No. L-101438 October 13, 1992] REGALADO,J.:

Facts: Teresita Vallejera, during her aspirancy to join the Congregation of the Religious of Virgin Mary (RVM), upon the recommendation of Archbishop Patrick Cronin, voluneered to assis as a library aide in the library section of the Cathedral School of Technology, an educational institution run by the RVM sisters. In later years, she confessed that she was no longer interested to become a nun however pleaded to be allowed to continue living with the sisters as she had no other place to stay in and volunteered to continue to assist in the school library. Subsequently applied and appointed as library aide with monthly salary of Php 1,171.xx. Eventually, she became quarrelsome, bossy, unreasonable and very difficult to deal with. Due to irreconcilable differences, the Chief Librarian resigned. Her attention was called but instead of heding the advice of her superior she was arrogant to accept her fault. She was given 30 day notice of termination to look for a new work and place to live in. Until such time, she was not allowed to enter the school premises. Aggrieved, she filed for illegal dismissal against petitioner before the NLRC. The LA as affirmed by NLRC ruled in her favor on the ground that the dismissal was illegal due to lack of due process.

Issue: Whether private respondent is terminated for a just cause?

Ruling: Yes. An evaluative review of the records of this case nonetheless supports a finding of a just cause for termination.The reason for which private respondent's services were terminated, namely, her unreasonable behavior and unpleasant deportment in dealing with the people she closely works with in the course of her employment, is analogous to the other "just causes" enumerated under the Labor Code, as amended:

Art. 282.Termination by employer. An employer may terminate an employment for any of the following just causes:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;(b) Gross and habitual breach by the employee of his duties;(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and(e) Other causes analogous to the foregoing.

Other Syllabus:

Labor Law; Employer-employee relationship.The existence of an employer-employee relationship is essentially a factual questionand the respondent commission's findings thereon are accorded great weight and respect and even finality when the same are supported by substantial evidence. We find no reason to overrule the same.

Labor Law; Dismissal; Due Process.On the matter of illegal dismissal, petitioners do not dispute the findings, and in effect admit, that private respondent was denied her right to due process. As found by the labor arbiter, no hearing on the impending dismissal was conducted as would have afforded private respondent an opportunity to explain her side and, if need be, to defend herself. True, petitioners notified her of the school's decision to terminate her services. Butnotice alone, without the requisite hearing does not suffice.

Labor Law; Dismissal; Due Process.Under the Labor Code, as amended,the requirements of lawful dismissal of an employee by his employer are two-fold: the substantive and the procedural. Not only must the dismissal be for a valid or authorized cause as provided by law (Arts. 279, 281, 282-284), but the rudimentary requirements of due process notice and hearing must also be observed before an employee may be dismissed (Art. 277 [b]). One cannot go without the other, for otherwise the termination would, in the eyes of the law, be illegal.

Labor Law; Dismissal; Due Process.Clearly, therefore, its ruling that private respondent was illegally dismissed was premisedsolely on the fact of alleged lack of procedural due process, without regard to whether or not there was lawful cause for such dismissal,which latter aspect constitutes the element of substantive due process. We accordingly proceed to resolve the issue that is thereby presented.

Labor Law; Dismissal; Benefits.This being so, there can be no award for backwages, for it must be pointed out that while backwages are granted on the basis of equity for earnings which a worker or employee has lost due to his illegal dismissal, where private respondent's dismissal is for just cause, as is the case herein, there is no factual or legal basis to order payment of backwages; otherwise, private respondent would be unjustify enriching herself at the expense of petitioners. Where the employee's dismissal was for a just cause, it would be neither fair nor just to allow the employee to recover something he has not earned or could not have earned.

Labor Law; Dismissal; Benefits.Neither can there be an award for separation pay. InCosmopolitan Funeral Homes, Inc.vs.Maalat, et al.,we reiterated thecategorical abandonment of the doctrine that employees dismissed for cause are entitled to separation pay on the ground of social and compassionate justice.This ruling finds support in Section 7, Book VI of the Implementing Rules of the Labor Code

Labor Law; Dismissal; Benefits.Verily, an award for payment of separation pay presupposes that the illegally dismissed employee would otherwise have been entitled to reinstatement. Where, as in this case, there is sufficient basis to dismiss private respondent (aside from the obvious existence of strained relations between the parties) which accordingly is a lawful impediment to her reinstatement, an award for separation pay would be a specious inconsistency. Not being entitled to reinstatement, private respondent cannot legally be entitled to separation pay.

14.LOLITA S. CONCEPCION vs. MINEX IMPORT CORPORATION/MINERAMA CORPORATION, KENNETH MEYERS, SYLVIA P. MARIANO, and VINA MARIANO [G.R. No. 153569,January 24, 2012] BERSAMIN,J.:

Facts: Minor Import-Export Corporation was engaged in the retail of semi-precious stones, selling them in kiosks or stalls installed in various shopping centers within Metro Manila. Concepcion was hired as a sales girl who was promoted supervisor without salary increase. Vina Mariano, the assistant manager, assigned Concepcion to the SM Harrison Plazakiosk with the instruction to hold the keys of the kiosk. At the close of business, they conducted a cash-count of their sales proceeds amounting to P50,912.00. The next morning, the petitioner phoned Vina Mariano to report that the P50,912.00 was missing. Later, while the petitioner was giving a detailed statement on the theft to the security investigator of Harrison Plaza, Vina and Sylvia Mariano, her superiors, arrived with a policeman who immediately placed the petitioner under arrest,the police investigated her. She was detained for a day being released only because the inquest prosecutor instructed so.

The petitioner complained against the respondents for illegal dismissal in the Department of Labor and Employment. Minex, through Vina, filed a complaint for qualified theft against the petitioner in the Office of the City Prosecutor in Manila. As to the petitioners complaint for illegal dismissal, the Labor Arbiter decided in favor of Lolita Concepcion. On appeal by the respondents, the National Labor Relations Commission (NLRC) reversed the decision of the Labor Arbiter declaring that the petitioner had not been dismissed, but had abandoned her job after being found to have stolen the proceeds of the sales; and holding that even if she had been dismissed, her dismissal would be justifiable forloss of trust and confidence in the light of the finding of probable cause by the DOJ and the City Prosecutor and the filing of the information for qualified theft against her.The petitioner challenged the reversal by the NLRC in the Court of Appeals (CA). The CA sustained the NLRC mainly because of the DOJ Secretarys finding of probable cause for qualified theft. Petiioner moved to reconsider on the ground that there was no evidence at all upon which Minex could validly dismiss her considering that she had not yet been found guilty beyond reasonabl doubt of the crime of qualified theft. The CA denied the petitioners motion for reconsideration. Hence, the instant petition.

Issue: Whether petitioner was terminated for a just cause?

Ruling: Yes. InPhilippine Long Distance Telephone Co.(BLTB Co.) vs. NLRC,the Court held thatthe acquittal of the employee from the criminal prosecution for a crime committed against the interest of the employer did not automatically eliminate loss of confidence as a basis for administrative action against the employee; and that in cases where the acts of misconduct amounted to a crime, a dismissal might still be properly ordered notwithstanding that the employee was not criminally prosecuted or was acquitted after a criminal prosecution.

The employer is not expected to be as strict and rigorous as a judge in a criminal trial in weighing all the probabilities of guilt before terminating the employee. Unlike a criminal case, which necessitates a moral certainty of guilt due to the loss of the personal liberty of the accused being the issue, a case concerning an employee suspected of wrongdoing leads only to his termination as a consequence.The quantum of proof required for convicting an accused is thus higher proof of guilt beyond reasonable doubt than the quantum prescribed for dismissing an employee substantial evidence.In so stating, we are not diminishing the value of employment, but only noting that the loss of employment occasions a consequence lesser than the loss of personal liberty, and may thus call for a lower degree of proof.

Other Syllabus:The fair and reasonable opportunity required to be given to the employee before dismissal encompassed not only the giving to the employee of notice of the cause and the ability of the employee to explain, but also the chance to defend against the accusation.

15.LOLITA S. CONCEPCION v. MINEX IMPORT CORPORATION/MINERAMACORPORATION, KENNETH MEYERS, SYLVIA P. MARIANO, and VINAMARIANO [G.R. No. 153569 January 24, 2012] BERSAMIN,J.:

Facts: This is a petition assailing the decision of NLRC affirming the decision of Labor Arbiter finding Makati Haberdashery, Inc. (Makati) guilty of illegal dismissal and ordering him to reinstate the dismissed workers and in concluding that there is employer-employee relationship. The complainants were working for Makati as tailors, seamstress, sewers, basters and plantsadoras who were paid on a piece-rate basis with allowance when they report for work before 9:30am everyday (Monday Saturday). Sandigan ng Manggagawang Pilipino, a labor organization of the complainant, filed a complaint for underpayment of basic wage, living allowance, non-payment of overtime work, non-payment of holiday pay, non-payment of service incentive pay ad other benefits under wage orders. During the pendency, Makati discovered an open package contained a jusi (barong tagalog). When inquired by Makati, one of the complainants admitted that he copied the design of Makati and the same for his customer. Makati asked them to explain hy no actionshould be taken against them for accepting a job order which is prejudicial and in direct competition with the business of the company. Complainants allegedly did not submit their explanation and did not report for work. Makati dismiss the workers for the alleged job acceptance from another, which was denied by the workers and countered by filing a complaint for illegal dismissal. Which was granted by NLRC. Hence, this petition.

Issue: Whether complainant were terminated for a just cause?

Ruling: Yes. Assuming that such acts do not constitute abandonment of their jobs as insisted by private respondents, their blatant disregard of their employer's memorandum is undoubtedlyan open defiance to the law orderd of the latter, a justifiable ground for termination of employment by the employer expressly provided for in Articlle 283 (a) of the Labor Code as well as a clear indication of guilt for the commission of acts inimical to the interests of the employer, another justifiable ground for dismissal uner the same Article of the Labor Code, paragraph (c). Well established in our jurisprudence is the right of an emplyer to dismiss an emplyee whose continuace in the service is inimical to the employer's interest.

Finally, it has been established thatthe right to dismiss or otherwise impose discriplinary sanctions upon an employee for just and valid cause, pertains in the first place to the employer,as well as the authority to determine the existence of said cause in accordance with the norms of due process. There is no evidence that the employer violated said norms. On the contrary, private respondents who vigorously insist on the existence of employer-employee relationship, because of the supervision and control of their employer over them, were the very ones who exhibited their lack of respect and regard for their employer's rules.chanroblesvirtual

Other Syllabus:

Labor Relations; Employer-Employee Relationship; Four Fold Test of EER; Control Test, Defined.We have repeatedly held in countless decisions that the test of employer-employee relationship is four-fold: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the power to control the employee's conduct. It is the so called "control test" that is the most important element. This simply means the determination of whether the employer controls or has reserved the right to control the employee not only as to the result of the work but also as to the means and method by which the same is to be accomplished.

Labor Standards.On the other hand, while private respondents are entitled to Minimum Wage, COLA and 13th Month Pay,they are not entitled to service incentive leave pay because as piece-rate workers being paid at a fixed amount for performing work irrespective of time consumed in the performance thereof, they fall under one of the exceptions stated in Section 1(d), Rule V, Implementing Regulations, Book III, Labor Code.For the same reason private respondents cannot also claim holiday pay (Section 1(e), Rule IV, Implementing Regulations, Book III, Labor Code).

16. JUDY PHILIPPINES, INC.,, vs.NATIONAL LABOR RELATIONS COMMISSION and VIRGINIA ANTIOLA [G.R. No. 111934. April 29, 1998] MARTINEZ,J.:

Facts:Virginia Antiola was employed as an assorter of baby infant dresses by Judy Philippines, Inc. in its export business. She was directed by her supervisor to sort out baby infant derssess pursuant to an instruction sheet. Petitioner required Antiola to explain in writing why she shouold not be meted disciplinary sanctions for her erronieous assortment and packaging of 2,680 dozens of infant wear. She admitted her error and asked for forgivenss. Antiola's supervisor and ther packer also received the same memo. They submitted their explanations. Petitioner found Antiola guilty of negligence and she was dismissed from employment. The supervisor was suspended for a month on the ground of negligence through command responsibility. The packer was found innocent on the ground that when she undertook the packachging of the infant wear, the same were already sealed in black plastic bags and could no longer be checked. NAFLU, in behalf of Antiola, filed a complaint for ULP and illegal dismissal; against petitioner. They alleged that the dismissal was ujustified because the infatn wear erroneously assorted by Antiola should not have been shipped to the buyer had the company's supervisor and the buye'rs quality comptroller exercised due diligence in the performance of their duties in ensuring that the goods were properly assorted. LA held that dismissal was lawful on the ground of fault and negligence causing an irraparable damage to the goodwil of the petitioner's business, especially considerting that the latter is an export oriented entity. NLRC held that to qualify as a valid cause for dismissal under the LC, neglect must not only be gross, it should be gross and habitual neglect in character. NLRC ordered reinstatned with backwages for one year.

Issue: Whether Antiola is dismissed with valid cause?

Ruling: No. Petitioner anchors its right to terminate the employment of Virginia Antiola on the ground of gross neglect of duties, under Article 282 (b) of the Labor Code.Gross negligenceimplies a want or absence of or failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them.We affirm the finding of the NLRC that Article 282 (b) of the Labor Code requires that xxx such neglect must not only be gross, it should be Grossand habitualneglect in character. As aptly pronounced by the NLRC, the penalty of dismissal is quite severe here noting that the labor arbiter himself admits that she committed the infraction for the first time.

We are not, however, unmindful of the negligence committed by respondent Antiola.The employers obligation to give his workers just compensation and treatment carries with it the corollary right to expect from the workers adequate work, diligence and good conduct.Nonetheless, private respondents wrongdoing does not warrant dismissal inasmuch as dismissal is the ultimate penalty that can be meted to an employee.

Other Syllabus:

Labor Law; Pleadings and Practice; Appeals.Since the 10-day period provided in Article 223 of the Labor Code refers to ten calendar days and not to ten working days, this means that Saturdays, Sundays and Legal Holidays are not to be excluded, but included, in the computation of the 10-day period. This is in line with the objective of the law for speedy disposition of labor cases with the end in view of protecting the interest of the working man. In subsequent cases, We ruled thatif the tenth day to perfect an appeal from the decision of the Labor Arbiter to the NLRC falls on a Saturday, the appeal shall be made on the next working day, as embodied in Section 1, Rule VI of the NLRC Rules of Procedure promulgated on January 14, 1992. This conclusion arrived at by the Court recognizes the fact that on Saturdays the offices of NLRC and certain post offices are closed.

Labor Law; Pleadings and Practice; Appeals; Techinicalities.Even assumingarguendothat the appeal was filed beyond the period allowed by law, We have at times overlooked this particular procedural lapse. In the case of Firestone Tire and Rubber Co. v. Larosa and reiterated in Chong Guan Trading vs. NLRC this Court allowed the filing of appeals from the decisions of the labor arbiter to the NLRC, even if filed beyond the reglementary period, in the interest of justice. Thus,technical rules of procedure in labor cases are not to be strictly applied if the result would be detrimental to the working man.Technicality should not be permitted to stand in the way of equitably and completely resolving the rights and obligations of the parties. Moreover, under Article 218 (c) of the Labor Code, the Commission is empowered to correct, amend, or waive any error, defect or irregularity whether in substance or form, in the exercise of its appellate jurisdiction. Therefore, We find no grave abuse of discretion on the part of the NLRC in entertaining the appeal of private respondents, even if, as alleged by petitioner, it was filed two days late.

Labor Law; Managament Prerogatives.While it is true that the decision to dismiss or lay off an employee is managements prerogative, it must be made without abuse of discretion, for what is at stake is not only the employees position but also his means of livelihood.Therefore, he should be protected against any arbitrary deprivation of his job. At any rate, where a penalty less punitive would suffice, whatever missteps may be committed by labor ought not to be visited with a consequence so severe. It is not only because of the laws concern for the workingmen. There is, in addition, his family to consider. Unemployment brings about hardships and sorrows on those dependent on the wage-earner. The misery and pain attendant to the loss of jobs then could be avoided if there be acceptance of the view that under all circumstances of a case the workers should not be deprived of their means of livelihood.

Labor Law; Dismissal; Reinstatement; Backwages.We shall now deal with the consequences that should visit the petitioner for illegally dismissing private respondent Virginia Antiola.Under the law, an employee is entitled to reinstatement and to his full backwages when he is unjustly dismissed. Note, however, thatreinstatement and backwages are separate and distinct reliefs given to an illegally dismissed employee.

Labor Law; Dismissal; Reinstatement; Backwages; Words and Phrases; Reinstatement and Backwages, Explained.Reinstatement means restoration to a state or condition from which one had been removed or separated. One who is reinstated assumes the position he had occupied prior to the dismissal and is, as an ordinary rule, entitled only to the last salary in that position.Backwages, on the other hand, is a form of relief that restores the income that was lost by reason of unlawful dismissal.

Labor Law; Dismissal; Backwages; RA No. 6715.Republic Act No. 6715, which took effect on March 21, 1989, amended Article 279 of the Labor Code, provides that an illegally dismissed employee is entitled to full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. We have ruled, however, thatthis amendment has no retroactive effect.In such case,the award of backwages to an employee whose illegal dismissal occurred before March 21, 1989, is limited to a period of three (3) years without deduction or qualification.

17. SIXTA C. LIM vs. NATIONAL LABOR RELATIONS COMMISSION and PEPSI-COLA FAR EAST TRADE DEVELOPMENT CO., INC. [G.R. No. 118434.July 26, 1996] DAVIDE, JR.,J.:

Facts: Petitioner had been with Pepsi Group since 1981 as a secretary for Pepsi Bottling Co. (Phils.), Inc. During 1983, Pepsi, a manufacturer of concentrates to be sold to Pepsi-Cola Bottlers Co., Inc, employed her as an accountant. As per company policy, PEPSI regularly evaluated its employees performance. Her performance rates were superior and commendable. Subsequently, petitioner received an overall rating of Below Target in the management performance appraisal. It was evident that the quality of her work in cost accounting needs a lot of improvement. The financial reporting aspect of cost accounting contributes to better management of [sic] the companys resources and gives decision makers an important guide in setting the companys direction towards productivity and profitability. She was advised to improve her work habits, especially in putting her priorities in proper order. She argued that that a few mistakes and delays did not mean she failed to appreciate the importance of these reports. her supervisors were likewise culpable since they were lax in allowing the reports to remain unupdated when they knew she was on leave and claimed that she was fed the wrong figures, hence the mistakes.PEPSI conducted another appraisal received an overall rating of BT. Unsatisfied, she wrote a letter to Mr. Yasuyuki Mihara of Pepsi Co, Inc., Japan and the latter informed her that he would discuss the matter with her superiors on his visit to the Philippines after his return from New York. PEPSI, however, did not wait for Mr. Miharas visit.It asked the petitioner to voluntarily resign and offered to pay her termination benefits, but she refused. The petitioner was verbally informed of her termination as an employee of PEPSI. Hence she filed a complaint for dismissal without due process against PEPSI. Later on she received a Termination Letter for gross inefficiency. Labor Arbiter rendered judgment in favor of the petitioner which was reversed by NLRC. Hence this petition.

Issue: Whether petitioner was terminated for a just cause?

Ruling: Gross inefficiency is closely related to gross neglect, for both involve specific acts of omission on the part of the employee resulting in damage to the employer or to his business.InBuiser vs. Leogardo,this Court ruled that failure to observe prescribed standards of work, or to fulfill reasonable work assignments due to inefficiency may constitute just cause for dismissal.

In the case at bench, however, prior to the issuance of the Termination Letter, PEPSI never called the petitioners attention to any alleged gross inefficiency on her part.Likewise, she was never warned of possible disciplinary action due to any alleged gross inefficiency. The evaluation report merely indicated her areas for improvement.Moreover, in PEPSIs brochure entitled Managing Performance For the 90s,a BT rating does not merit dismissal from the service; as a matter of fact, the lower rating - Significantly Below Target (SB) - is not even a ground for termination of employment, but may only justify putting the employee on probation and [telling him] that improvement is a necessity.

Undoubtedly, the petitioner obtained an unfavorable rating, but not to the extent, under the companys standards, to warrant even a probationary measure which is given to the lowest rating of Significantly Below Target (SB).If the company truly found the petitioners inefficiency to be of such a gross character, then it should have rated her even lower than SB, since the latter only requires that the employee be put on probation.

Moreover, PEPSI violated the petitioners right to due process the heart of the employees right to security of tenure which is guaranteed in full by no less than the Constitution.The first notice apprises the employee of the particular acts or omissions for which his dismissal is sought, which may be loosely considered as the propercharge; while the second informs the employee of the employers decision to dismiss him.The latter must come only after the employee is given a reasonable period from receipt of the first notice within which to answer the charge, and ample opportunity to be heard and defend himself with the assistance of his representative, if he so desires.

18. MA. LOURDES T. DOMINGO,vs. ROGELIO I. RAYALA [G.R. No. 155831 February 18, 2008] NACHURA,J.:

Sexual harassment is an imposition of misplaced "superiority" which is enough to dampen an employees spirit and her capacity for advancement. It affects her sense of judgment; it changes her lif.

FACTS: Ma. Lourdes T. Domingo (Domingo), then Stenographic Reporter III at the NLRC, filed a Complaint for sexual harassment against Rayala (Chairman of NLRC) before DOLE on the basis of Administrative Order No. 250, theRules and Regulations Implementing RA 7877 in the Department of Labor and Employment.

It found Rayala guilty of the offense charged and recommended the imposition of the minimum penalty provided under AO 250, which it erroneously stated as suspension for six (6) months. This decision was concurred by the OP, through Executive Secretary Zamora and the Court of Appeals, and, thus, dismissed Rayala from service.

The CA pointed out that Rayala was dismissed for disgraceful and immoral conduct in violation of RA 6713, theCode of Conduct and Ethical Standards for Public Officials and Employees. It held that the OP was correct in concluding that Rayalas acts violated RA 6713. Upon motion, said the CA decision was modified and the penalty of dismissal was deleted.

Hence, this petition arguing that the power to remove Rayala, a presidential appointee, is lodged with the President who has control of the entire Executive Department, its bureaus and offices. The OPs decision was arrived at after affording Rayala due process. Hence, his dismissal from the service is a prerogative that is entirely with the President.As to the applicability of AO No. 250, she argues that the same was not intended to cover cases against presidential appointees. AO No. 250 refers only to the instances wherein the DOLE Secretary is the disciplining authority, and thus, the AO does not circumscribe the power of the President to dismiss an erring presidential appointee.

Rayala likewise filed a Petition for Review essentially arguing that he is not guilty of any act of sexual harassment.

ISSUE: Whether or not the President of the Philippines may validly dismiss respondent Rayala as Chairman of the NLRC for committing acts of sexual harassment

RULING:Under AO 250, the penalty for the first offense is suspension for six (6) months and one (1) day to one (1) year, while the penalty for the second offense is dismissal.On the other hand, Section 22(o), Rule XVI of the Omnibus Rules Implementing Book V of the Administrative Code of 1987and Section 52 A(15) of theRevised Uniform Rules on Administrative Cases in the Civil Serviceboth provide that the first offense of disgraceful and immoral conduct is punishable by suspension of six (6) months and one (1) day to one (1) year. A second offense is punishable by dismissal.

Under the Labor Code, the Chairman of the NLRC shall hold officeduring good behavioruntil he or she reaches the age of sixty-five,unless sooner removed for cause as provided by lawor becomes incapacitated to discharge the duties of the office.

In this case, it is the President of the Philippines, as the proper disciplining authority, who would determine whether there is a valid cause for the removal of Rayala as NLRC Chairman. This power, however, is qualified by the phrase "for cause as provided by law." Thus, when the President found that Rayala was indeed guilty of disgraceful and immoral conduct, the Chief Executive did not have unfettered discretion to impose a penalty other than the penalty provided by law for such offense. As cited above, the imposable penalty for the first offense of either the administrative offense of sexual harassment or for disgraceful and immoral conduct is suspension of six (6) months and one (1) day to one (1) year. Accordingly, it was error for the Office of the President to impose upon Rayala the penalty of dismissal from the service, a penalty which can only be imposed upon commission of a second offense.

Even if the OP properly considered the fact that Rayala took advantage of his high government position, it still could not validly dismiss him from the service. Under theRevised Uniform Rules on Administrative Cases in the Civil Service,taking undue advantage of a subordinate may be considered as an aggravating circumstanceand where only aggravating and no mitigating circumstances are present, the maximum penalty shall be imposed.Hence, the maximum penalty that can be imposed on Rayala is suspension for one (1) year.

Rayala holds the exalted position of NLRC Chairman, with the rank equivalent to a CA Justice. Thus, it is not unavailing that rigid standards of conduct may be demanded of him.

19.PHILIPPINE JAPAN ACTIVE CARBON CORPORATION and TOKUICHI SATOFUKA,petitioners,vs. NATIONAL LABOR RELATIONS COMMISSION and OLGA S. QUIANOLArespondents. [G.R. No. 83239 March 8, 1989] GRIO-AQUINO, J.

FACTS: Private respondent was employed in Petitioner Corporation as Assistant Secretary/Export Coordinator. Eventually, she was promoted to the position of Executive Secretary to the Executive Vice President and General Manager. In 1986, for no apparent reason at all and without prior notice to her, she was transferred to the Production Department as Production Secretary, swapping positions with Ester Tamayo. Although the transfer did not amount to a demotion because her salary and workload remained the same, she believed otherwise so she rejected the assignment and filed a complaint for illegal dismissal.The LA foundthat the transfer would amount to constructive dismissal hence, her refusal to obey the transfer order was justified. On appeal, the NLRC affirmed LAs finding.

ISSUE: Whether private respondent was constructively and illegally dismissed.

RULING: No. A constructive discharge is defined as: "A quitting because continued employment is rendered impossible, unreasonable or unlikely; as, an offer involving a demotion in rank and a diminution in pay."

In this case, the private respondent's assignment as Production Secretary of the Production Department was not unreasonable as it did not involve a demotion in rank (her rank was still that of a department secretary) nor a change in her place of work (the office is in the same building), nor a diminution in pay, benefits, and privileges. It did not constitute a constructive dismissal.

It is the employer's prerogative, based on its assessment and perception of its employees' qualifications, aptitudes, and competence, to move them around in the various areas of its business operations in order to "ascertain where they will function with maximum benefit to the company. An employee's right to security of tenure does not give him such a vested right in his position as would deprive the company of its prerogative to change his assignment or transfer him where he will be most useful. When his transfer is not unreasonable, nor inconvenient, nor prejudicial to him, and it does not involve a demotion in rank or a diminution of his salaries, benefits, and other privileges, the employee may not complain that it amounts to a constructive dismissal.

20. PEPSICO, INC. v. NATIONAL LABOR RELATIONS COMMISSION and JOSE S. LAPID [G.R. No. 51632. September 7, 1989.] NARVASA,J.:

Facts: Jose S. Lapid occupied the position of "Director of Leasing" in petitioner firm, PEPSICO, Inc. It having been discovered that he had purchased for PEPSICO various types of machinery and equipment which he represented to be brand new but which, on subsequent inspection were discovered to be if not second-hand, over-valued, and that of twenty-four (24) lease agreements he had executed as PEPSICOs Director of Leasing, fourteen (14) had turned out to be "bad accounts," all said transactions involving an amount of more than P7 million, his employer terminated his services on account of loss of confidence in his competence and reliability. Thereafter, Lapid, through an attorney, wrote to PEPSICO requesting that he be reinstated or, alternatively, that he be allowed to retire under the companys retirement plan. His request was turned down, PEPSICO asserting that as shown by indubitable documentary evidence, he had "been grossly and habitually negligent in processing a number of leasing agreements with company customers . . . and such gross and habitual neglect on . . . (his part in the) performance of his duties (had) resulted in enormous losses to the company for which reason the latter could no longer retain him in its employ." Lapid then filed a complaint against PEPSICO for illegal dismissal. The Labor Arbiter found, after a thoroughgoing analysis of the evidence, that Lapid was a managerial employee, that there was sufficient basis for his employers loss of confidence in him, and, being a managerial employee, his dismissal required no prior clearance from the Department of Labor NLRC reversed the same categorizing Lapid as a rank-and-file employee, not managerial, and declaring that he had been illegally dismissed as no clearance had been secured from the Labor Department prior to the termination of his services.

Issue: Whether Lapid was terminated with justifiable cause?

Ruling: Yes.

Employment; Termination due to incompetence and negligence. The purchase of machineries represented as brand new but discovered later to be second hand; and/or prices higher than those quoted by the other sellers for the same type constitute circumstances sufficient to cause an employer to lose trust and confidence in the employee and to justify his dismissal.

Other Syllabus:

Labor Law; Employment Classification; Managerial Employment; How determined. Evidence that petitioner Lapid, as "Director of Leasing," was in charge of purchasing and leasing industrial machinery, which was his employees principal activity in the Philippines, that he managed his own department and had wellnigh plenary authority and discretion to enter into contract binding on his employer, cannot be interpreted otherwise than as showing that he was a managerial employee.

Separation pay allowed as a measure of social justice. The award by the Labor Arbiter of "financial assistance" to Lapid is not therefore proscribed by the doctrine laid down in PLDT v. NLRC, G.R. No. 80609, August 23, 1988, reiterated in Osias Academy v. Department of Labor and Employment, G.R. No. 83234, April 18, 1989, that financial assistance or "separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct" but not where the cause for termination of employment reflects on his personal integrity or morality. Such financial assistance is specially appropriate in this case, considering that Lapid, who had served PEPSICO for a considerable length of time, is now in his middle sixties, and is reportedly suffering from incurable emphysema and is in difficult economic straits.

21. BIENVENIDO R. BATONGBACAL vs. ASSOCIATED BANK [No. L-72977. December 21, 1988]

FACTS: ATTY. BATONGBACAL, a lawyer, worked for Citizens Bank from 1961. Citizens Bank merged with the Associated Banking Corporation, giving way to the merged corporate entity ASSOCIATED BANK. BATONGBACAL resumed his position as assistant vice-president (AVP) in ASSOCIATED BANK. Later, BATONGBACAL learned that his salary was very low compared to the other AVPs of the bank. He wrote to the Board of Directors asking that he be paid the proper amount. Apparently, said letter fell on deaf ears. On March 15, 1982, the board approved a resolution which required Managers and other higher ranking employees to submit IMMEDIATELY to the President their courtesy resignations. Apparently, the bank was facing financial difficulties, hence it wanted to streamline its operations. BATONGBACAL did not submit his courtesy resignation, but later he received a letter from the Board saying that his resignation has been accepted. BATONGBACAL wrote to the executive VP asking for reconsideration. He stated therein that he thought the call for the submission of courtesy resignations was only for erring "loathsome" officers and not those like him who had served the bank honestly and sincerely for sixteen years. Starting May 4, 1983, he was not paid. He filed for illegal dismissal and damages with the NLRC. LA favored BATONGBACAL, but NLRC reversed on appeal.

ISSUE: Whether an employer bank may legally dismiss its assistant vice-president for refusal to tender his courtesy resignation which the bank required in line with its reorganization plan.

HELD: NO. While it may be said that the ASSOCIATED BANKs call for courtesy resignations was prompted by its determination to survive, we cannot lend legality to the manner by which it pursued its goal. By directing its employees to submit letters of courtesy resignation, the bank in effect forced upon its employees an act which they themselves should voluntarily do. It should be emphasized that resignation per se means voluntary relinquishment of a position or office. Adding the word courtesy did not change the essence of resignation. That courtesy resignations were utilized in government reorganization did not give ASSOCIATED BANK the right to use it as well in its own reorganization and rehabilitation plan. There is no guarantee that all employers will not use it to rid themselves arbitrarily of employees they do not like, in the guise of stream-lining its organization. On the other hand, employees would be unduly exposed to outright termination of employment which is anathema to the constitutional mandate of security of tenure.

Insubordination may not be imputed to one who refused to follow an unlawful order. ASSOCIATED BANK terminated BATONGBACALs employment for insubordination in view of his failure to comply with the order to submit his letter of courtesy resignation. We hold, however, that insubordination may not be imputed to one who refused to follow an unlawful order.

Loss of Confidence as a ground for dismissal must be supported by satisfactory evidence. ASSOCIATED BANK asserts that BATONGBACALs refusal to submit his letter of courtesy resignation was sufficient reason to distrust him. Even with respect to managerial employees who, under Policy Instructions No. 8, may be dismissed for lack of confidence, loss of trust must be substantiated and clearly proven.

No proof of malfeasance or misfeasance committed by BATONGBACAL which jeopardized ASSOCIATED BANKs interest. The record fails to show any valid reasons for terminating the employment of BATONGBACAL. There are no proofs of malfeasance or misfeasance committed by BATONGBACAL which jeopardized ASSOCIATED BANKs interest. The latters allegations that BATONGBACAL was purged because he sabotaged the bank and that he contributed, directly or indirectly to its downfall are mere subjective conclusions unsubstantiated by hard facts. To clothe with legality BATONGBACALs dismissal for his failure to submit his letter of courtesy resignation is to add a ground for termination of employment to the provisions of the Labor Code.22.DAVAO CONTRACTORS DEVELOPMENT COOPERATIVE (DACODECO), petitioner vs MARILYN A. PASAWA, respondent. [G.R. NO. 172174|July 9, 2009] QUISIMBING, J.:

FACTS: Petitioner Davao Contractors Development Cooperative (DACODECO) is a duly registered cooperative engaged in the construction business. It hired respondent Marilyn Pasawa as General Manager. Sometime in May 2004, the Board of Directors of DACODECO formed an evaluation committee to assess respondents performance. The evaluation committee reported that respondents services was just average; she lacked construction knowledge; and she made a false statement in the 2004 General Assembly. Upon its recommendation, the Board of Directors dismissed respondent. "The Board of Directors intensively discussed, debated and carefully evaluated the issue presented to us and with our own opinion and observation has come up with a decision that you have not [met] the working standard of our cooperative". Respondent filed a complaint for illegal dismissal and contested the findings of the evaluation committee. Respondent also contended that contrary to DACODECOs claim, she was engaged as a regular employee. LA rendered a decision in respondent's favor. He noted, however, that the board resolution did not specify or inform respondent of the reasonable standards by which her advancement to regular status would be gauged. Thus, respondents dismissal was invalid.

ISSUE: Whether the dismissal of the Pasawa is valid for her failure to meet reasonable standards for employment.

RULING: Under Article 281 of the Labor Code, a probationary employee can be legally dismissed either: 1) for a just cause; or 2) when he 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 the services of 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. 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.

Here, petitioner did not present proof that respondent was duly notified, at the time of her employment, of the reasonable standards she needed to comply with for her continued employment.

23.THE UNIVERSITY OF THE IMMACULATE CONCEPTION and MO. MARIA ASSUMPTA DAVID, RVM, petitioners, vs. NATIONAL LABOR RELATIONS COMMISSION and TEODORA AXALAN, respondents. [G.R. No. 181146.January 26, 2011.]

Facts: Private respondent Teodora C. Axalan is a regular faculty member in University of the Immaculate Conception, situated in Davao City. She then received a memorandum6 from Dean Maria Rosa Celestial asking her to explain in writing why she should not be dismissed for having been absent without official leave when she attended a seminar in Quezon City on website development. She claimed that she held online classes while attending the seminar and would not be marked absent even if they were not physica