Afpslai-comment-opposition-to-petition-reyes-cbt.docx

REPUBLIC OF THE PHILIPPINES COURT OF APPEALS MANILA NINTH DIVISION

CARLO V. REYES, Petitioner, - versus -

C.A. G.R. SP NO. 152750

NATIONAL LABOR RELATIONS COMMISSION, ET AL., Respondents. x-----------------------------------------------x

COMMENT/OPPOSITION (Re: Petition for Certiorari) PRIVATE RESPONDENTS ARMED FORCES & POLICE SAVINGS & LOANS ASSOCIATION, INC. (“AFPSLAI” for brevity), LT. GEN. VIRGILIO O. DOMINGO, MS. ALEN GAHITE, MS. ROSE SANTOS, MR. LUIS VINOYA, JR., MR. SANNY GADOT, and MR. HECTOR ATIENZA, by and through the undersigned Law Firm, unto this Honorable Court of Appeals, by way of Comment/Opposition re: Petition for Certiorari, most respectfully aver: That – PREFATORY STATEMENT While our laws endeavor to give life to the constitutional policy on social justice and the protection of labor, it does not mean that every labor dispute will be decided in favor of the workers. The law also recognizes that management has rights which are also entitled

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to respect and enforcement in the interest of fair play.1 Thus, the employer cannot be compelled to maintain in his employ the undeserving, if not undesirable, employees.2 The right of the employer to dismiss its erring employees is a measure of self-protection.3 The power to dismiss an employee is a recognized prerogative that is inherent in the employer’s right to freely manage and regulate its business.4 Indeed, the law is fair and just to both labor and management. Thus, while the Constitution accords an employee security of tenure, it abhors oppression of an employer who cannot be compelled to retain an employee whose continued employment would be patently inimical to its interest.5 The worker’s right to security of tenure is not an absolute right, for the law provides that he may be dismissed for cause.6

1

Duncan Association of Detailman-PTGWO vs. Glaxo Wellcome Philippines, Inc., G.R. No. 162994, Sept. 17, 2004. 438 SCRA 343.

2

Shoemart, Inc. v. NLRC, G.R. No. 74229, Aug. 11, 1989.

3

Reyes v. Minister of Labor, G.R. No. 48705, Feb. 9, 1989; Filipro, Inc. v. NLRC, G.R. No. 70546, Oct. 16, 1986.

4

Sutherland Global Services (Philippines), Inc. v. Labrador, G.R. No. 193107, March 24, 2014; The Orchard Golf and Country Club v. Francisco, G.R. No. 178125, March 18, 2013; Philippine-Singapore Transport Services, Inc. v. NLRC, G.R. No. 95449, Aug. 18, 1997, 343 Phil. 284, 291.

5

Reyes-Rayel v. Philippine Luen Thai Holdings Corp., G.R. No. 174893, July 11, 2012; Villanueva, Jr. v. NLRC, G.R. No. 176893, June 13, 2012; Kakampi and Its Members v. Kingsport Express and Logistic, G.R. No. 194813, April 25, 2012; Yabut v. Manila Electric Company, G.R. No. 190436, Jan. 16, 2012, 663 SCRA 92; Jumuad v. Hi-Flyer Food, Inc., G.R. No. 187887, Sept. 7, 2011, 657 SCRA 288; Dycoco, Jr. v. Equitable PCI Bank [now Banco de Oro], G.R. No. 188271, Aug. 16, 2010; Agabon v. NLRC, G.R. No. 158693, Nov. 17, 2004; GT Printers v. NLRC, G.R. No. 100749, April 24, 1992, 208 SCRA 321, 324-325; Lopez v. NLRC, G.R. No. 167385, Dec. 13, 2005; Ocean Terminal Services, Inc. v. NLRC, G.R. No. 85446, May 27, 1991; Philippine Long Distance Telephone Company v. Montemayor, G.R. No. 88626, Oct. 12, 1990; Mercury Drug Corporation v. NLRC, G.R. No. 75662, Sept. 15, 1989.

6

Sutherland Global Services (Philippines), Inc. v. Labrador, supra; Molina v. Pacific Plans, Inc., G.R. No. 165476, March 10, 2006, 519 Phil. 475, 497.

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Private respondents would like to emphasize that the legality of the dismissal of herein petitioner from his employment, as shown by the existence of just cause and observance of due process to him, is clear and evident in the instant case. More importantly, the series of illegal acts of herein petitioner of “acceptance or solicitation of gifts for oneself xxx in exchange for favorable treatment” consisting of the following: (a) “The best looking fighting cock”; (b) A live goat; and (c) A processing fee of PhP5,000.00 and 10% of the total unclaimed loan proceeds amounting to PhP184,781.64 of Torrado, are clearly violative not only of AFPSLAI’s Company Code of Conduct and Discipline but also constitute acts of dishonesty which, under paragraph (a) of Article 297 [282], are tantamount to “serious misconduct.” It must be emphasized that petitioner’s acts of soliciting and accepting cash and/or money from SPO4 Torrado as processing fee for the latter’s loan constitute serious misconduct and willful disobedience of the lawful orders of his employer. It is in the light of all the foregoing that the NLRC, Second Division cannot but rule in its Resolution dated 07 June 2017, thus: “Considering the foregoing factual circumstances, We find that complainant’s dismissal was based on valid and just grounds. Not only are the incidents discussed above in violation of the Company Code of Conduct and Discipline, they also constitute Serious Misconduct which is a just cause of termination under the Labor Code. Similarly, by his acts, AFPSLAI had reason to lose its trust and

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confidence with complainant, which is another just cause of termination under the Labor Code. Loss of confidence as a just cause for termination of employment is premised on the fact that the employee concerned holds a position of responsibility or trust and confidence. Complainant, as an investigator, occupied a position of responsibility hence, the existence of some basis or reasonable ground for his involvement in any irregularity is enough to destroy the trust and confidence which respondent AFPSLAI reposed in him. To the observance of due process, We find that complainant was afforded procedural due process. It is well settled that the basic requirement of notice and hearing in termination cases is for the employer to inform the employee of the specific charges against him and to hear his side and defenses. This does not mean, however, a full adversarial proceeding. The parties may be heard through pleadings, written explanations, position papers, memorandum or oral argument. In all of these instances, the employer plays an active role by providing the employee with the opportunity to present his side and answer the charges in substantial compliance with due process. In both cases, complainant was afforded the opportunity to explain his side as evidenced by the Notices to Explain issued to him on February 19, 2016 and on May 12, 2016. Records also show that he submitted his explanations on February 26, 2016 and on June 06, 2016. Clearly, complainant was substantially afforded procedural due process. Hence, his contention that he was denied thereof has no basis.

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Complainant’s claims for unpaid th salary, 13 month pay and tax refund should likewise be denied as records submitted by respondents prove that the same were already fully paid and satisfied. Finally, since complainant was validly dismissed, his prayer for reinstatement, backwages, damages and attorney’s fees are also denied for lack of basis. (pages 16 and 17 of Decision dated 07 June 2017.)

Thus, it is very evident that the NLRC extensively evaluated the Appeal and Motion for Reconsideration of herein petitioner as well as the Decision of the Labor Arbiter a quo. THE INSTANT PETITION IS PROCEDURALLY FLAWED AND SHOULD BE DISMISSED Private respondents would like to point out that Petitioner did not furnish the former with copies of the Annexes mentioned in his Petition for Certiorari. Thus, the instant Petition is procedurally flawed and should be DENIED. As held by the Honorable Supreme Court in the case of CARMELITA V. LIM and VICARVILLE REALTY and DEVELOPMENT CORPORATION VS. HON. BENJAMIN T. VIANZON in his capacity as the Presiding Judge of Branch 1 of the Regional Trial Court of Bataan and VALENTIN GARCIA and CONCEPCION GARCIA,7 thus: “Moreover, the instant petition is procedurally flawed as it is not accompanied by copies of relevant pleadings mandated by the second paragraph of Section 1, Rule 65 of the 1997 Rules of Civil Procedure. Said provision reads as follows: “SECTION 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi7

G.R. No. 137187 [August 3, 2006]

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judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require. The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of Section 3, Rule 46. (Emphasis supplied.) “Specifically, as pointed out by respondents, the instant petition is not accompanied by copies of the Motion to Dismiss and Motion for Reconsideration that petitioners filed with the trial court. These are documents important for the Courts appraisal, evaluation and judicious disposition of the case. Failing to fully apprise the Court of the relevant details of the case, we find this egregious error a sufficient cause for the dismissal of the instant petition. As held in Santiago, Jr. v Bautista, to wit: x x x the lower courts holding that appellants failure to accompany his petition with a copy of the judgment or order subject thereof together with copies of all pleadings and documents relevant and pertinent thereto is fatal to his cause is supported not only by the provision of that Rule but by precedents as well. A party who seeks to avail of the extraordinary remedy of certiorari must observe the rules laid down by law, and nonobservance of the said rules may not be brushed aside as mere technicality.” (underscoring ours)

While the petitioner may have attached copies of the Annexes and required documents in the Petition filed before the Honorable Court, petitioner intentionally did not furnish herein private respondents said copies of the Annexes purportedly attached to his Petition.

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Thus, private respondents submit that the instant Petition should already be dismissed for non-compliance with the rules. ARGUMENTS/DISCUSSION A. On the erroneous and preposterous allegation by the petitioner that the NLRC committed grave abuse of discretion amounting to lack or excess of jurisdiction when it ruled that the petitioner was validly dismissed from his employment relying heavily on the unsubstantiated allegations of Torrado against him. -----------------------------------------1. It is well to stress that there is nothing new in the arguments raised by the petitioner in his Petition for Certiorari dated 23 September 2017. In fact, the arguments contained therein are mere rehash or repetition of previous arguments in his pleadings filed before the NLRC. 2. Thus, Petitioner’s contention in his Petition that the NLRC committed grave abuse of discretion amounting to lack or excess of jurisdiction when it ruled that petitioner was validly dismissed from his employment is completely bereft of factual and legal bases. 3. As extensively discussed in private respondents’ Position Paper and Reply, petitioner violated the established company rules and regulations of the private respondents which constrained them to terminate his employment. In the instant case, herein petitioner’s dismissal is not only based on one just cause but on several just causes for termination that are punishable with dismissal, to wit: 3.1. Private Respondent AFPSLAI’s Company Code of Conduct and Discipline, specifically the provision in its “Clause D” consisting of his act of “acceptance or 7

solicitation of gifts for oneself or a third party in exchange for favorable treatment”8 and 3.2. Article 297 [282] of the Labor Code, specifically, the following grounds (a) Serious misconduct xxx; xxx (c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative[.] xxx” 4. Markedly, the grounds mentioned in the Company Rules and Regulations, in this case denominated as Company Code of Conduct and Discipline, are jurisprudentially considered as just causes is beyond cavil.9 Thus, in addition to the afore-cited grounds in Article 279 [282] of the Labor Code, the offenses with the corresponding penalties prescribed by the employer in its Company Rules and Regulations are also considered as analogous just causes. And violation of such Code of Conduct and Discipline is considered a valid ground to terminate the employment relationship.10 5. More to the point, the following acts constitute the just causes that well constitute as legal and valid bases for herein petitioner’s dismissal, to wit:

8

This is the ground cited in the Notice to Explain dated 19 February 2016, See Annex “3” of private respondents’ Position Paper, purportedly attached as Annex “D” of the Petition .

9

Inguillo v. First Philippine Scales, Inc., G.R. No. 165407, June 5, 2009, 588 SCRA 471.

10

Sampaguita Auto Transport Corporation v. NLRC, G.R. No. 197384, Jan. 30, 2013; Suico v. NLRC, G.R. Nos. 146762, 153584 and 163793, Jan. 30, 2007, 513 SCRA 325; Norkis Trading Co., Inc. v. NLRC, G.R. No. 168159, Aug. 19, 2005, 467 SCRA 461, 470-471; Philcom Employees Union v. Philippine Communications and Philcom Corporation, G.R. No. 144315, July 17, 2006.

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a. His act of asking from the father of Ms. Sheina Mangampo, a contractual employee of AFPSLAI’s Legazpi City Branch, who was then subject of the background investigation being conducted by herein petitioner, for “the best looking fighting cock,” in order for her to be favorably considered by private respondent AFPSLAI for a probationary position as Secretary. Not only did Ms. Mangampo testified on this fact, she also showed the text messages sent to her by herein petitioner on 20 January 2016 reminding and following up with her the delivery to him by her father of “the best looking fighting cock.” It remains uncontroverted by herein petitioner that he himself actually picked up “the best looking fighting cock” from the barber shop of Ms. Mangampo’s father. The Incident Report and print-out of the text messages sent by herein petitioner11 unmistakably show and clearly confirm this blameworthy act of petitioner. b. His act of asking from SPO4 Wilfredo L. Torrado, Sr., the amount of PhP5,000.00 and 10% of his total unclaimed loan proceeds amounting to PhP184,781.64, as “processing fee” in consideration for the retrieval of this unclaimed loan. The Affidavit-Complaint of Torrado confirmed this fact in no uncertain terms. To prove this, Torrado has presented Cebuana Lhuillier transaction receipt P8X7KFE15K in the amount of PhP5,000.00. Torrado’s Affidavit-Complaint and this Cebuana Lhuillier transaction receipt P8X7KFE15K12 would readily confirm this wrongful act of herein petitioner. c. His act, in addition to the foregoing, of accepting a live goat from the parents of one, Ms. Myra Tordecilla, an AFPSLAI employee who was then the subject of a background investigation by herein petitioner, for no other reason but obviously as consideration for a favorable Annexes “1” and “2” of private respondents’ Position Paper, purportedly attached as Annex “D” of the Petition. 12 Annexes “6” and “7” of private respondents’ Position Paper, purportedly attached as Annex “D” of the Petition. 11

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finding. Notably, this fact that he accepted the live goat was discovered while herein petitioner was undergoing the administrative investigation for the above-described infractions. 6. Undoubtedly, the foregoing factual findings were duly established and supported by substantial evidence, which is the fundamental quantum of evidence required to terminate employment, in particular, and in all litigations involving labor cases, in general. 7. Section 5, Rule 133 of the Rules of Court clearly provides that “in cases filed before administrative or quasi-judicial bodies, a fact may be deemed established if it is supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion.”13 It is evidence that a reasonable mind might accept as adequate to support a conclusion.14 It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.15 “More than a mere scintilla or relevant evidence as a reasonable mind might accept as adequate to support a conclusion,16 even if other minds equally reasonable might conceivably opine otherwise.17

13

Gan v. Galderma Philippines, Inc., G.R. No. 177167, Jan. 17, 2013; Julie's Bakeshop v. Arnaiz, G.R. No. 173882, Feb. 15, 2012, 666 SCRA 101, 113-114; Nissan Motor Phils., Inc. v. Angelo, G.R. No. 164181, Sept. 14, 2011, 657 SCRA 520, 530; Philippine Veterans Bank v. NLRC [Fourth Division], G.R. No. 188882, March 30, 2010, 617 SCRA 204,212; and Merck Sharp and Dohme [Philippines] v. Robles, G.R. No. 176506, Nov. 25, 2009, 605 SCRA 488, 494; Barros v. NLRC, G.R. No. 123901, Sept. 22, 1999; Philippine Airlines, Inc. v. NLRC, G.R. No. 117038, Sept. 25, 1997, 279 SCRA 445.

14

China City Restaurant v. NLRC, G.R. No. 97196, Jan. 22, 1993, 217 SCRA 451.

15

Manalo v. Confesor, G.R. No. I02358, Nov. 19, 1992, 215 SCRA 819.

16

Livesey v. Binswanger Philippines, Inc., G.R. No. 177493, March 19, 2014; Gelmart Industries (Phils.), Inc. v. Hon. Leogardo, Jr.,G.R. No. 70544, Nov. 5, 1987, 239 Phil. 386, 391; citing Ang Tibay v. CIR, G.R. No. 46496, Feb. 27, 1940, 69 Phil. 635.

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Cheryll Santos Leus v. St. Scholastica's College Westgrove, G.R. No. 187226, Jan. 28, 2015; Bankard, Inc. v. NLRC, G.R. No. 171664, March 6, 2013; Niña Jewelry Manufacturing of Metal Arts, Inc. v. Montecillo, G.R. No. 188169, Nov. 28, 2011, 661 SCRA 416, 432, citing Honorable Ombudsman Simeon Marcelo v. Leopoldo Bungubung, G.R. No. 175201, April 23, 2008, 552 SCRA 589, 608; University of the Philippines Board of Regents v. Hon. Ligot-Telan, G.R. No. 110280, Oct. 12, 1993.

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8. More significantly, all the afore-cited acts of herein petitioner constitute not only a clear and definitive violation of the provision of “Clause D’ (Dishonesty or Breach of Trust) of AFPSLAI’s Company Code of Conduct and Discipline, in relation to Code of Ethical Standards of AFPSLAI on “acceptance or solicitation of gifts for oneself or a third party in exchange for favorable treatment”18 but also a brazen and blatant transgression of the following grounds in Article 297 [282] of the Labor Code, to wit:“[s]erious misconduct” and “[f]raud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative.” 16. Substantively, therefore, there can be no question that herein petitioner’s dismissal stands on strong legal and factual grounds. It is well-established that petitioner solicited and accepted cash and/or money from SPO4 Torrado as processing fee of the latter’s loan. ----------------------------------17. Petitioner alleged that he did not ask or solicit money as processing fee from SPO4 Torrado. However said allegation is belied by the Affidavit-Complaint of SPO4 Torrado and Cebuana Lhuillier transaction receipt P8X7KFE15K in the amount of PhP5,000.00.19 These pieces of evidence clearly show that petitioner, with abuse of confidence and ill intent, took advantage of his position to solicit, collect or extort money from SPO4 Torrado.

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19

This is the ground cited in the Notice to Explain dated 19 February 2016, See Annex “3” of private respondents’ Position Paper, purportedly attached as Annex “D” of the Petition. Annexes “6” and “7” of private respondents’ Position Paper, purportedly attached as Annex “D” of the petition.

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18. Petitioner’s allegation that no witness was presented on Torrado’s claim is highly ridiculous. SPO4 Torrado’s Affidavit Complaint20 clearly states that: “In this connection, MR. CARLO V. REYES, an AFPSLAI Investigator offered his help for the retrieval of the unclaimed loan with a condition that a processing fee of five thousand pesos (P5,000.00) and 10% of the total loan claimed will be given to him; “Thus, I let my wife remit P5,000.00 through Cebuana on July 4, 2015; Hereto attached is a xeroxed copy of the remittance receipt; “After two days, I made an inquiry about the development of my claim and he said that the processing and computation is going on; A month after, I contacted him, but he is no longer answering, I could not find his whereabouts; “I am executing this affidavit Complaint against MR. CARLO V. REYES, AFPSLAI Investigator for the P5,000.00 money he demanded and the 10% share to the total amount loan released hoping that the proper authorities will address 21 immediately upon receipt hereof.” 19. The aforesaid Affidavit-Complaint clearly disproves petitioner’s claim that the amount of PhP5,000.00 was freely given to him by SPO4 Torrado. Simply put, SPO4 Torrado could not have complained about the commission of extortion by herein petitioner if the subject PhP5,000.00 was freely given. Furthermore, whether the PhP5,000.00 was freely given or not, the fact remains that petitioner has received and accepted said cash from SPO4 Torrado which was completely irregular, anomalous and illegal. 20

21

Annex “8-A” of private respondents’ Position Paper, purportedly attached as Annex “D” of the Petition. Emphasis supplied.

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20. Petitioner’s argument that since the money was given to him on July 4, 2015 or after his Investigation Report was approved on July 3, 2015, the said amount could not have influenced his report about SPO4 Torrado is nothing but a weak and futile attempt to justify his illegal act of soliciting and accepting money from SPO4 Torrado. 21. Contrary to petitioner’s claim, the amount of PhP5,000.00 from SPO4 Torrado could not have been freely given to him because SPO4 Torrado himself had complained about his act of extortion. 22. Likewise, petitioner’s allegation that there is nothing in the records of the case which would show that SPO4 Torrado was reliable, competent or credible to be believed in is highly absurd. The fact that an amount of PhP5,000.00 was remitted to and received by the petitioner through Cebuana Lhuillier transaction receipt P8X7KFE15K22 is a strong proof that petitioner already received the money from SPO4 Torrado. In addition, there is nothing in the record that would establish that SPO4 Torrado had an axe to grind against herein petitioner. 23. More so, there is nothing in the records of the case that herein petitioner even attempted to return the money to SPO4 Torrado. 24. Petitioner also miserably failed to justify his series of illegal acts and his habitual exploit of soliciting and accepting gifts and/or money for himself by taking due advantage of his position as security staff assigned to to conduct background investigation on employees and transactions of clients. Much as he tried to justify his wrongdoing, the truth cannot be denied that his actions constitute serious misconduct and willful disobedience of the lawful orders of his employer. The statements of Assistant Branch Head (ABH) of Legazpi 22

Annex “7” of private respondents’ Position Paper, purportedly attached as Annex “D” of the Petition.

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Branch regarding Mangampo incident involving petitioner’s solicitation of “the best fighting cock” from Mangampo’s father are NOT hearsay. ------------------------------------25. Contrary to petitioner’s allegation, the statements of ABH on the Mangampo incident are NOT hearsay. It is an oft-repeated rule that in labor cases, as in other administrative and quasi-judicial proceedings, "the quantum of proof necessary is substantial evidence, or such amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. 26. Petitioner’s act of asking from the father of Ms. Sheina Mangampo, a contractual employee of AFPSLAI’s Legazpi City Branch, who was then subject of the background investigation being conducted by herein petitioner, for “the best looking fighting cock,” in order for her to be favorably considered by respondent AFPSLAI for a probationary position as Secretary is a valid basis on petitioner’s dismissal from employment. Not only did Ms. Mangampo testified on this fact, she also showed the text messages sent to her by herein petitioner on 20 January 2016 reminding and following up with her the delivery to him by her father of “the best looking fighting cock.” It remains uncontroverted by herein petitioner that he himself actually picked up “the best looking fighting cock” from the barber shop of Ms. Mangampo’s father.23 There is just cause in terminating petitioner from his employment. -----------------------------------27. First and foremost, the series of illegal acts of herein petitioner of “acceptance or solicitation of gifts for oneself xxx in exchange for favorable treatment” consisting of the following; (d)

“The best looking fighting cock”;

Annexes “1” and “2-series” of private respondents’ Position Paper, purportedly attached as Annex “D” of the Petition. 23

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(e) (f)

A live goat; and A processing fee of PhP5,000.00 and 10% of the total unclaimed loan proceeds amounting to PhP184,781.64 of Torrado,

are clearly violative not only of AFPSLAI’s Company Code of Conduct and Discipline but also constitute acts of dishonesty which, under paragraph (a) of Article 297 [282], tantamount to “serious misconduct.” 28. For misconduct or improper behavior to be a just cause for dismissal, the following requisites must concur: a. It must be serious; b. It must relate to the performance of the employee’s duties; and c. It must show that the employee has become unfit to continue working for the employer.24 29. There can be no debate that all the foregoing elements are present in the instant case. Thus, 29.1. FIRST REQUISITE: The act of herein petitioner is serious. The hornbook definition of “misconduct” is to the effect that it must be improper or wrongful 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 24

Only these first 3 requisites were mentioned in a catena of cases such as: Waterfront Cebu City Casino Hotel, Inc. v. Ildebrando Ledesma, G.R. No. 197556, March 25, 2015; The Coffee Bean and Tea Leaf Philippines, Inc. v. Rolly P. Arenas, G.R. No. 208908, March 11, 2015; Northwest Airlines, Inc. v. Ma. Concepcion M. Del Rosario, G.R. No. 157633, Sept. 10, 2014; Colegio De San Juan De Letran-Calamba v. Engr. Deborah P. Tardeo, G.R. No. 190303, July 09, 2014; Yabut v. Manila Electric Company, G.R. No. 190436, Jan. 16, 2012, 663 SCRA 92; Nissan Motor Phils., Inc. v. Angelo, G.R. No. 164181, Sept. 14, 2011, 657 SCRA 520, 530; Nagkakaisang Lakas ng Manggagawa sa Keihin v. Keihin Philippines Corporation, G.R. No. 171115, Aug. 9, 2010, 627 SCRA 179, 188; Caltex (Philippines), Inc. v. Agad, G.R. No. 162017, April 23, 2010, 619 SCRA 196, 213; Tomada, Sr. v. RFM Corporation-Bakery Flour Division, G.R. No. 163270, Sept. 11, 2009, 599 SCRA 381, 391; Philippine National Bank v. Velasco, G.R. No. 166096, Sept. 11, 2008, Phil. 444, 461-462; Marival Trading, Inc. v. NLRC, G.R. No. 169600, June 26, 2007, 525 SCRA 708, 727; Lopez v. NLRC, G.R. No. 167385, Dec. 13, 2005; Roquero v. Philippine Air Lines, Inc., G.R. No. 152329, April 22, 2003; Philippine Aeolus Automotive United Corporation v. NLRC, G.R. No. 124617, April 28, 2000, 387 Phil 250, 261; Austria v. NLRC, G.R. No. 124382, Aug. 16, 1999, 371 Phil 340, 360.

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and not mere error in judgment.25 That herein petitioner’s series of acts constitute an improper and wrongful conduct is beyond question. 29.2.

Petitioner’s series of irregularities, especially when put together, well constitute serious misconduct. This is so because if an employee was shown to have committed various violations of the company’s rules and regulations, his dismissal from the service is in order.26 And there is more reason for dismissal where the acts of misconduct and willful breach of trust are repeatedly committed by an employee.27 An employee’s fitness for continued employment cannot be compartmentalized into tight little cubicles of aspects of character, conduct, and ability separate and independent of each other.28 A series of irregularities, when put and considered together or in their entirety, may constitute serious misconduct, a valid ground to terminate employment.29

29.3. SECOND AND THIRD REQUISITES: The said acts of herein petitioner obviously relate

25

26

27

28

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Imasen Philippine Manufacturing Corporation v. Ramonchito A. Alcon and Joann S. Papa, G.R. No. 194884, Oct. 22, 2014; Sang-an v. Equator Knights Detective and Security Agency, Inc., G.R. No. 173189, Feb. 13, 2013; Naranjo v. Biomedica Health Care, Inc., G.R. No 193789, Sept. 19, 2012;Aliviado v. Procter &Gamble, Phils., Inc., G.R. No. 160506, March 9, 2010, 614 SCRA 563, 583-584; John Hancock Life Insurance Corp. v. Davis, G.R. No. 169549, Sept. 3, 2008; PLDT v. Bolso, G.R. No. 159701, Aug. 17, 2007; Echeverria v. Venutek Medika, Inc., G.R. No. 169231, Feb. 15, 2007, 544 Phil. 763, 770; Fujitsu Computer Products Corporation of the Philippines v. CA, G.R. No. 158232, April 8, 2005; See also Department of Labor Manual, Section 4343.01. Gustilo v. Wyeth Phils., Inc., G.R. No. 149629, Oct. 4, 2004; See also Piedad v. Lanao del Norte Electric Cooperative, Inc.,G.R. No. L-73735, Aug. 31, 1987, 153 SCRA 500, 509; National Service Corp. v. Leogardo, Jr.,G.R. No. L-64296, July 20, 1984, 130 SCRA 502; 215 Phil. 450, 457. Piedad v. Lanao del Norte Electric Cooperative, Inc., G.R. No. 73735, Aug. 31, 1987, 153 SCRA 500; Philippine Long Distance Telephone v. NLRC, G.R. No. 59724, May 30, 1983, 122 SCRA 618. Piedad v. Lanao del Norte Electric Cooperative, Inc., supra; See also Quiambao v. Manila Electric Company, G.R. No. 171023, Dec. 18, 2009. National Service Corp. v. Leogardo, Jr., supra.

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to the performance of his duties30 and thus, he has become unfit to perform them and to continue working for the employer.31 They were all committed in connection with his work as a Security Staff at respondent AFPSLAI’s Security Investigation Office (SIO), whose primordial task was to conduct background investigations on employees and transactions of clients. It is in the discharge of these duties that herein petitioner was able to confer with and connect to both employees and clients who are subject of his background investigations and upon whom he was able to perpetrate his nefarious design of “accept[ing] or solicit[ing] gifts for oneself xxx in exchange for favorable treatment” in the background investigation reports that he will submit to respondent AFPSLAI. Simply stated, he has taken full advantage of his position that consequently enabled him to unduly profit therefrom. Petitioner’s acts constitute breach of trust and confidence. ---------------------------------30. The doctrine of loss of trust and confidence is based on paragraph (c) of Article 297 [282] of the Labor Code, thus:

30

PNOC-Energy Development Corporation v. Estrella, G.R. No. 197789, July 08, 2013; See also Cosmos Bottling Corp. v. Fermin, G.R. Nos. 193676 & 194303, June 20, 2012, 674 SCRA 310, 318.

31

Imasen Philippine Manufacturing Corporation v. Ramonchito A. Alcon and Joann S. Papa, G.R. No. 194884, Oct. 22, 2014; Tomada, Sr. v. RFM CorporationBakery Flour Division, G.R. No. 163270, Sept. 11, 2009, 599 SCRA 381, 391; Coca-Cola Bottlers, Phils., Inc. v. Kapisanan ng Malayang Manggagawa sa CocaCola-FFW, G.R. No. 148205, Feb. 28, 2005; Samson v. NLRC, G.R. No. 121035, April 12, 2000, 330 SCRA 460, 471; Edge Apparel, Inc. v. NLRC, G.R. No. 121314, Feb. 12, 1998, 286 SCRA 302.

17

“(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative.” 31. Law and jurisprudence have long recognized the right of employers to dismiss employees by reason of loss of trust and confidence.32 Thus, if there is sufficient evidence to show that the employee has been guilty of breach of trust or that his employer has ample reason to distrust him, the labor tribunal cannot justly deny to the employer the authority to dismiss such employee, more so in cases where the latter occupies a position of responsibility.33 32. For the doctrine of loss of trust and confidence to apply, the following requisites must be satisfied: (a) The employee holds a position of trust and confidence;34 (b) There exists an act justifying the loss of trust and confidence,35 which means that the act that betrays the employer’s trust must be real, i.e., founded on clearly established facts;36 (c) The employee’s breach of the trust must be willful, i.e., it was done intentionally, knowingly and purposely, without justifiable excuse;37 and 32

Moya v. First Solid Rubber Industries, Inc., G.R. No. 184011, Sept. 18, 2013; The Coca-Cola Export Corporation v. Gacayan, G.R. No. 149433, June 22, 2011, 652 SCRA 463, 470.

33

Schering Employees Labor Union [SELU] v. Schering Plough Corporation, G.R. No. 142506, Feb. 17, 2005; Etcuban, Jr. v. Sulpicio Lines, Inc., G.R. No. 148410, Jan. 17, 2005.

34

Wesleyan University-Philippines v. Nowella Reyes, G.R. No. 208321, July 30, 2014; Manila Jockey Club, Inc. v. Aimee O. Trajano, G.R. No. 160982, June 26, 2013.

35

Baguio Central University v. Gallente, G.R. No. 188267, Dec. 02, 2013; Alvarez v. Golden Tri Bloc, Inc., G.R. No. 202158, Sept. 25, 2013; Philippine Plaza Holdings, Inc. v. Flora Episcope, G.R. No. 192826, Feb. 27, 2013.

36

Baguio Central University v. Gallente, supra, citing Bristol Myers Squibb (Phils.), Inc. v. Baban, G.R. No. 167449, Dec. 17, 2008, 574 SCRA, 198, 206.

37

Baguio Central University v. Gallente, supra, citing Baron v. NLRC, G.R. No. 182299, Feb. 22, 2010, 613 SCRA 351, 360; See also Torres v. Rural Bank of San Juan, Inc., G.R. No. 184520, March 13, 2013; Philippine Plaza Holdings, Inc. v. Episcope, G.R. No. 192826, Feb. 27, 2013; Prudential Guarantee and Assurance Employee Labor Union v. NLRC, G.R. No. 185335, June 13,2012, 672

18

(d) The act must be in relation to his work which would render him unfit to perform it.38 33. Undoubtedly, all the foregoing requisites are attendant to this case. 33.1. FIRST REQUISITE: Herein petitioner definitely holds a position of trust and confidence since his task as Security Staff to conduct background investigation on employees and transactions of clients requires greater responsibility and a high degree of trust and confidence. 33.2. A “position of trust and confidence” is one where a person is “entrusted with confidence on delicate matters”39 such as the entrusting to herein petitioner of highly delicate confidential matters like the information gathered by him from his conduct of background investigations on both employees and clients. The very life, future and means of livelihood of such SCRA 375, 386; Jerusalem v. Keppel Monte Bank, G.R. No. 169564, April 6, 2011, 647 SCRA 313, 323-324; Aliviado v. Procter & Gamble Phils., Inc., G.R. No. 160506, May 9, 2010; Alcantara v. The Philippine Commercial and Industrial Bank, G.R. No. 151349, Oct. 20, 2010; Rentokil (Initial) Philippines, Inc. v. Sanchez, G.R. No. 176219, Dec. 23, 2008, 575 SCRA 324, 333; Bristol Myers Squibb [Phils.], Inc. v. Baban, G.R. No. 167449, Dec. 17, 2008, 574 SCRA 198, 205-206; Sulpicio Lines, Inc. v. Gulde, G.R. No. 149930, Feb. 22, 2002; Gonzales v. NLRC and Pepsi-Cola Products, Phils., Inc., G.R. No. 131653, March 26, 2001. 38

Note must be made that only the first 2 out of the 4 requisites were cited in Wesleyan University-Philippines v. Nowella Reyes, G.R. No. 208321, July 30, 2014, based on the ruling in M+W Zander Philippines, Inc. v. Enriquez, G.R. No. 169173, June 5, 2009, 588 SCRA 590; See also P.J. Lhuillier, Inc. v. Flordeliz Velayo, G.R. No. 198620, Nov. 12, 2014, citing Jerusalem v. Keppel Monte Bank, G.R. No. 169564, April 6, 2011, 647 SCRA313, 323-324. See further Martinez v. Central Pangasinan Electric Cooperative, Inc. (CENPELCO), G.R. No. 192306, July 15, 2013, which similarly cited only the first 2 requisites citing as basis thereof, Philippine Plaza Holdings, Inc. v. Episcope, G.R. No. 192826, Feb. 27, 2013 which also cited Jerusalem v. Keppel Monte Bank, supra.

39

Bluer Than Blue Joint Ventures Company v. Glyza Esteban, G.R. No. 192582, April 07, 2014; Lynvil Fishing Enterprises, Inc. v. Ariola, G.R. No. 181974, Feb. 1, 2012; Caltex (Philippines), Inc. v. Agad, G.R. No. 162017, April 23, 2010, 619 SCRA 196, 214; Triumph International (Phils.), Inc. v. Apostol and Opulencia, G.R. No. 164423, June 16, 2009, 589 SCRA 185; Salas v. Aboitiz One, Inc., G.R. No. 178236, June 27, 2008; Jardine Davies, Inc. v. NLRC, G.R. No. 76272, July 28, 1999, 370 Phil. 310, 318-319; Panday v. NLRC, G.R. No. 67664, May 20, 1992, 209 SCRA 122, 125-126; Lepanto Consolidated Mining Co. v. CA, G.R. No. L-15171, April 29, 1961, 1 SCRA 1251.

19

employees and clients significantly depend on herein petitioner’s findings and recommendation as such Security Staff. That he has taken advantage of such highly fiduciary position of his for personal gain is a serious breach of such trust and confidence reposed in him. Thus, where the rules laid down by the employer to protect its interest are violated by the very employee who is entrusted and expected to follow and implement the rules, the employee can be validly dismissed from service.40 This is so because as firmly entrenched in jurisprudence, loss of trust and confidence as a just cause for termination of employment is premised on the fact that an employee concerned holds a position where greater trust is placed by management and from whom greater fidelity to duty is correspondingly 41 expected. The betrayal of this trust is the essence of the offense for which an employee is penalized.42 33.3. Further, the work of herein petitioner as Security Staff, whose task includes conducting investigations on employees and clients, exposed him to business and financial transactions involving private respondent AFPSLAI’s business. He undoubtedly was a key personnel who had to be trusted. A high degree of confidence is reposed on him because he is entrusted with business records of his employer and when confidence is breached, the employer

40

Triumph International (Phils.), Inc. v. Apostol and Opulencia, supra.

41

Sanden Aircon Philippines v. Rosales, G.R. No. 169260, March 23, 2011; Lima Land, Inc. v. Cuevas, G.R. No. 169523, June 16, 2010; Caingat v. NLRC, G.R. No. 154308, March 10, 2005; Enriquez v. Bank of the Philippine Islands, G.R. No. 172812, Feb. 12, 2008; Sulpicio Lines, Inc. v. Gulde, G.R. No. 149930, Feb. 22, 2002; Sanchez v. NLRC, G.R. No. 124348, Aug. 19, 1999.

42

Lynvil Fishing Enterprises, Inc. v. Ariola, G.R. No. 181974, Feb. 1, 2012; Lopez v. Alturas Group of Companies, G.R. No. 191008, April 11, 2011, 647 SCRA 568, 573-574; Santos v. San Miguel Corporation, G.R. No. 149416, March 14, 2003; Central Pangasinan Electric Cooperative, Inc. v. Macaraeg, G.R. No. 145800, Jan. 22, 2003, 395 SCRA 720, 727.

20

may take proper disciplinary action against him, such as what has been properly done in this, that is, to dismiss him from the service. 33.4. The fact that herein petitioner is a rankand-file employee does not foreclose his being terminated on the ground of loss of trust and confidence. He is, by nature of his work, a confidential employee who, technically, is a rank-and-file employee whose position is highly fiduciary in nature and is thus reposed with trust and confidence; consequently, as earlier asserted, he may be dismissed in case of breach of such trust and confidence. 33.5. Indeed, an employee’s being a rank-andfile does not foreclose his dismissal based on the doctrine of loss of trust and confident. The bottom line is that such rank-and-file employee holds a position of trust and confidence. And positions of these nature are not confined solely and exclusively to those which handle money or property. Several cases have, in fact, been decided by the Supreme Court where the validity of the dismissal based on this ground was affirmed, despite the fact that the employee concerned does not handle money or property of the employer. The following may be cited as illustrative examples: (a)

43

The Service Representative in PLDT v. Buna43 was declared as not merely a rank-and-file employee but a confidential employee. In fact, her position is classified as “High Priority.” She does not only screen and process telephone applications but also recommends them for approval. She likewise handles the transfer of subscriptions from existing clients to

G.R. No. 143688, Aug. 17, 2007.

21

new applicants. Her job entails the observance of proper company procedures relating to the evaluation and subsequent recommendation of prospective clients to PLDT. Her assessment of the fitness of such applicants is relied upon by PLDT in giving its approval to the subscription applications which in turn results in a client-provider relationship between PLDT and its subscribers. Thus, her job involves a high degree of responsibility requiring a substantial amount of trust and confidence on the part of PLDT. Hence, her dismissal based on loss of trust and confidence is valid. (b)

In Arlyn Bago v. NLRC,44 it was held that petitioner’s claim that as encoder, she is an ordinary rankand-file employee, hence, she cannot be dismissed for loss of trust and confidence does not lie. The observation of the Court of Appeals that “[h]er work is of such nature as to require a substantial amount of trust and confidence on the part of xxx her employer” is well-taken in the light of her functions which “required the use of judgment and discretion.” Petitioner, of course, incorrectly assumes that mere rank-and-file employees cannot be dismissed on the ground of loss of confidence. Jurisprudence holds otherwise albeit it requires “a higher proof of involvement” in the questioned acts.45

(c)

A construction company may lawfully dismiss its resident engineer for loss of confidence based on

44

G.R. No. 170001, April 4, 2007.

45

See also Gonzales v. NLRC, G.R. No. 131653, March 26, 2001, 355 SCRA 195, 208.

22

complaints about defects in the construction of its projects under the charge of said engineer.46 (d)

A security guard holds a position of trust and confidence. He may be dismissed legally for loss of trust and confidence.47

33.6. It is also noteworthy to stress that petitioner deliberately violated the guidance given to him by his superior with respect to the proper conduct of his investigation work, when he unduly made known his role to the persons, like Ms. Sheina Mangampo and her parents, Ms. Myra Tordecilla and her parents, and SPO4 Torrado, who all stand to benefit from any favorable findings he may state in his report. 33.7. Indeed, petitioner was entrusted to do investigative works for private respondent AFPSLAI and his findings are relied upon by the latter in making crucial decisions. The fact that he solicited gifts and benefitted from his performance of the duties assigned to him tainted very seriously and adversely the quality and credibility of his investigation and findings. 33.8. SECOND REQUISITE: That there exists an act justifying the loss of trust and confidence48 on herein petitioner is beyond controversion. His wrongful act which, it must be stressed, is not a solitary, isolated act but a series of wrongful acts, definitely suffice to merit his dismissal. The very 46

Almoite v. Pacific Architects, G.R. No. 73680, July 10, 1986.

47

Nasipit Lumber Co., Inc. v. NLRC, G.R. No. L-54424, Aug. 31, 1989; Cañete v. NLRC, G.R. No. 130425, Sept. 30, 1999.

48

Baguio Central University v. Gallente, G.R. No. 188267, Dec. 02, 2013; Alvarez v. Golden Tri Bloc, Inc., G.R. No. 202158, Sept. 25, 2013; Philippine Plaza Holdings, Inc. v. Flora Episcope, G.R. No. 192826, Feb. 27, 2013.

23

serious nature of his acts, made in the performance of his sworn duty as Security Staff, such as asking from the father of an employee he is investigating, for “[t]he best looking fighting cock”, and from another, for a “live goat” and still from another, for a processing fee of PhP5,000.00 and 10% of the total unclaimed loan proceeds amounting to PhP184,781.64, definitely justify the loss of trust and confidence in petitioner by herein private respondents. 33.9. THIRD REQUISITE: On the third requisite that the employee’s breach of the trust must be willful, i.e., it was done intentionally, knowingly and purposely, without justifiable excuse,49 no amount of argument can debunk the evidence that was, in fact, readily admitted by herein petitioner during the hearing that he committed the above-mentioned series of acts with full realization that they were wrong. Such admission cannot but be construed to mean that said acts were willfully committed by petitioner, without remorse nor compunction on his part. That he cannot offer any valid excuse that could justify his solicitation of “[t]he best looking fighting cock”, the “live goat” and processing fee of PhP5,000.00 and 10% of the total unclaimed loan proceeds amounting to PhP184,781.64, is most telling on the willfulness of his acts. 49

Baguio Central University v. Gallente, supra, citing Baron v. NLRC, G.R. No. 182299, Feb. 22, 2010, 613 SCRA 351, 360; See also Torres v. Rural Bank of San Juan, Inc., G.R. No. 184520, March 13, 2013; Philippine Plaza Holdings, Inc. v. Episcope, G.R. No. 192826, Feb. 27, 2013; Prudential Guarantee and Assurance Employee Labor Union v. NLRC, G.R. No. 185335, June 13,2012, 672 SCRA 375, 386; Jerusalem v. Keppel Monte Bank, G.R. No. 169564, April 6, 2011, 647 SCRA 313, 323-324; Aliviado v. Procter & Gamble Phils., Inc., G.R. No. 160506, May 9, 2010; Alcantara v. The Philippine Commercial and Industrial Bank, G.R. No. 151349, Oct. 20, 2010; Rentokil (Initial) Philippines, Inc. v. Sanchez, G.R. No. 176219, Dec. 23, 2008, 575 SCRA 324, 333; Bristol Myers Squibb [Phils.], Inc. v. Baban, G.R. No. 167449, Dec. 17, 2008, 574 SCRA 198, 205-206; Sulpicio Lines, Inc. v. Gulde, G.R. No. 149930, Feb. 22, 2002; Gonzales v. NLRC and Pepsi-Cola Products, Phils., Inc., G.R. No. 131653, March 26, 2001.

24

33.10. FOURTH REQUISITE: On the fourth requisite that the act must be in relation to his work which would render him unfit to perform it,50 there is no doubt that had petitioner not been assigned to perform the fiduciary task of his job as Security Staff, he could not have solicited, much less, accepted the items for which he was dismissed. The above-described wrongful acts of his were the products of his being a Security Staff. Consequently, by so committing and perpetrating the acts, he no longer is fit to perform his duties as Security Staff. His dismissal is but the only remaining option that was left to private respondents. 34. Just like in serious misconduct and violation of AFPSLA’s Company Code of Conduct and Discipline, the quantum of evidence required to prove breach of trust and confidence is mere substantial evidence which, as shown by evidence as discussed above, was fully met by herein private respondents when they decided to terminate herein petitioner from his employment. 35. Jurisprudentially, it is well-established a rule that it is enough that the loss of trust and confidence has some basis and proof beyond reasonable doubt is not required. It is sufficient that there must only be some basis for such loss of confidence or that there is reasonable ground to believe if not to entertain the moral conviction that the concerned employee is responsible for the misconduct and that the nature of his participation therein rendered him absolutely unworthy of trust and confidence

50

Note must be made that only the first 2 out of the 4 requisites were cited in Wesleyan University-Philippines v. Nowella Reyes, G.R. No. 208321, July 30, 2014, based on the ruling in M+W Zander Philippines, Inc. v. Enriquez, G.R. No. 169173, June 5, 2009, 588 SCRA 590; See also P.J. Lhuillier, Inc. v. Flordeliz Velayo, G.R. No. 198620, Nov. 12, 2014, citing Jerusalem v. Keppel Monte Bank, G.R. No. 169564, April 6, 2011, 647 SCRA313, 323-324. See further Martinez v. Central Pangasinan Electric Cooperative, Inc. (CENPELCO), G.R. No. 192306, July 15, 2013, which similarly cited only the first 2 requisites citing as basis thereof, Philippine Plaza Holdings, Inc. v. Episcope, G.R. No. 192826, Feb. 27, 2013 which also cited Jerusalem v. Keppel Monte Bank, supra.

25

demanded by his position.51 It is thus a settled rule that the mere existence of a basis for believing that an employee has breached the trust of the employer justifies dismissal.52 36. For purposes of emphasis, it is worth reiterating that during the investigation of the charges against herein petitioner, he admitted having solicited, accepted and received “[t]he best looking fighting cock”, the “live goat” and processing fee of PhP5,000.00. As his defense, petitioner asserted the highly incredible claim that he did not ask for the same and that they were freely given to him. 37. Arrayed, however, against such bare denial of petitioner that he did not solicit them, are the incontrovertible evidence consisting of the very text messages he sent to Ms. Sheina Mangampo regarding “[t]he best looking fighting cock”, his admission of having received and accepted the “live goat” from the parents of one, Ms. Myra Tordecilla, and his actual receipt of the processing fee of PhP5,000.00 from Torrado which was sent to him through Cebuana Lhuillier, as evidenced by transaction receipt P8X7KFE15K. 38. In his Petition, petitioner claimed that he has no power to effectively recommend managerial actions and his ministerial duty is merely to present information. Contradictory to said allegation, petitioner also claimed in his Position Paper (see page 16)53 that due to the nature of his job where “complainant fearlessly recommended the prosecution, termination / sanction of erring employees including managers, complainant became the subject of their ire, anger, hatred, retaliation and demolition job”.

51

Central Pangasinan Electric Cooperative, Inc. v. Macaraeg, G.R. No. 145800, Jan. 22, 2003; See also De Jesus v. Hon. Raul T. Aquino, G .R. Nos. 164662 & 165787, Feb. 18, 2013; Philippine Plaza Holdings, Inc. v. Episcope, G.R. No. 192826, Feb. 27, 2013; Jerusalem v. Keppel Monte Bank, G.R. No. 169564, April 6, 2011, 647 SCRA 313, 323; Sagales v. Rustan’s Commercial Corp., G.R. No. 166554, Nov. 27, 2008; Uniwide Sales Warehouse Club v. NLRC, G.R. No. 154503, Feb. 29, 2008; Norsk Hydro [Phils.], Inc. v. G.R. No. 162871, Jan. 31, 2007; Alcazaren v. Univet Agricultural Products, Inc., G.R. No. 149628, Nov. 22, 2005.

52

Reyes-Rayel v. Philippine Luen Thai Holdings Corp., G.R. No. 174893, July 11, 2012; Sim v. NLRC, G.R. No. 157376, Oct. 2, 2007, 534 SCRA 515, 524; Caoile v. NLRC, G.R. No. 115491, Nov. 24, 1998.

53

Purportedly attached as Annex “C” of the Petition.

26

B. On the erroneous and preposterous allegation by the petitioner that the NLRC committed grave abuse of discretion amounting to lack or excess of jurisdiction when it ruled that the petitioner was afforded due process of law. -----------------------------------------38. Herein private respondent have complied fully with the procedural due process requirement, as laid down under the King of Kings doctrine, which was enunciated in the leading case of King of Kings Transport, Inc. v. Mamac.54 39. More specifically, the said doctrine requires compliance with the following three (3) steps: (a)

54

First written notice. - The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the

G.R. No. 166208, June 29, 2007.

27

employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Article 297 [282] is being charged against the employees.

55

(b)

Hearing required. - After serving the first notice, the employers should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to: (1) explain and clarify their defenses to the charge/s against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.

(c)

Second written notice. After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge/s against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.55

See also Yellow Bus Line Employees Union (YBLEU) v. Yellow Bus Line, Inc. (YBLI), G.R. No. 190876, June 15, 2016; United Tourist Promotions (UTP) v. Kemplin, G.R. No. 205453, Feb. 5, 2014; Unilever Philippines, Inc. v. Maria Ruby M. Rivera, G.R. No. 201701, June 3, 2013; Aliling v. Feliciano, G.R. No. 185829, April 25, 2012; Lima Land, Inc. v. Cuevas, G.R. No. 169523, June 16, 2010; Inguillo v. First Philippine Scales, Inc., G.R. No. 165407, June 5, 2009, 588 SCRA 471, 491; R.B. Michael Press v. Galit, G.R. No. 153510, Feb. 13, 2008, 545 SCRA 23, 36; Genuino v. NLRC, G.R. Nos. 142732-33, Dec. 4, 2007.

28

40. That herein private respondents have fully complied with the foregoing procedural due process tenet is shown by the following: 40.1. FIRST WRITTEN NOTICE ON THE FIRST CHARGE: On 22 February 2016, a Notice to Explain was served to herein petitioner containing the specific cause or ground for termination against him, and a directive that he is given the opportunity to submit his written explanation within the reasonable period of five (5) days from his receipt thereof.56 40.2. To quote the said First Written Notice on this first charge: “It has come to our attention that on January 18 to 21 you were directed to go on official mission to Legaspi Branch purposely to conduct a background investigation (BI) on Ms Sheina B Mangampo a contractual employee of Legaspi Branch Office, being considered for probationary appointment as Secretary of Legaspi Branch. As reported by BH Legaspi, in the course of background investigation when you went to the subject employee’s house located at Purok 5 Pandan Daraga Albay to conduct said investigation, you apparently saw the father of the subject employee attending to his fighting cock. You then approached and introduced yourself as from AFPSLAI and in the process asked for one of the fighting cocks owned by the father. With due reservation knowing who you are, the father yielded and agreed to give you the fighting cock which you have chosen. You even reminded Ms Mangampo via text on January 20, 2016 about it through a message that reads “pakisabi sa father mo yung panabong ko ha he he he”. Eventually, you picked up the fighting cock at the barber shop owned by Ms Manampo’s father located along

56

Annex “3” of private respondents’ Position Paper, Annex “D” of the Petition.

29

downtown Daraga on your way back to Manila in the afternoon of January 20, 2016. Under the existing Code of Ethics, all employees have been advised that “acceptance or solicitation of gift for oneself or third party in exchange for favorable business treatment” is prohibited by the company as this places the employee in potential conflict of interest situation. Your actuation of directly asking and soliciting said fighting cock from the subject employee’s father is tantamount to a breach of legal duty, trust and confidence. This act under item D of the Code of Conduct and Discipline is sanctionable with dismissal on first offense. In view of the foregoing, you are hereby directed to explain within five 5 days from receipt hereof why no administrative sanction should be imposed upon you for said deviation.” 40.3. In reply to the said notice, herein petitioner submitted his written explanation dated 26 February 2016.57 40.4. CONDUCT OF HEARINGS ON THE FIRST CHARGE: On this charge, hearings were conducted by the Committee on Discipline on March 04, 2016. At this hearing, herein petitioner was afforded the opportunity to: (1) explain and clarify his defenses to the charge against him; (2) present evidence in support of his defense; and (3) rebut the evidence presented against him by the management of private respondent AFPSLAI. 40.5. Incidentally and unfortunately for herein petitioner, while the foregoing due process in his afore-described administrative case was still pending before the Committee on Discipline and before a decision could be formally endorsed by the Committee to the President and CEO of AFPSLAI, another complaint was lodged by SPO4 Wilfredo L. Torrado, Sr., 57

Annex “4” of private respondents’ Position Paper, Annex “D” of the Petition.

30

regarding petitioner’s demand for payment to him of the amount of PhP5,000.00 and 10% of his total unclaimed loan proceeds amounting to PhP184,781.64, as “processing fee” in consideration for the retrieval of his unclaimed loan. 40.6. FIRST WRITTEN NOTICE ON THE SECOND CHARGE: Because of this new Torrado complaint, herein petitioner was again served a Notice to Explain as well as Notice of Administrative Investigation for serious misconduct and fraud or willful breach of the trust reposed on him by his employer.58 40.7. To quote the said First Written Notice on the second charge: “It has come to our attention that on May 19, 2015, you, along with Mr. Tomas Cabida and Mr. Saturnino Torralba, were sent to Laoag Extension Office specifically to conduct investigation on the monetary claims arising out of the fraudulent transactions facilitated by Mr. Mark Anthony Atud against the interest of AFPSLAI Baguio Branch clients. Per the investigation report you submitted after the said mission, of the 20 complainants, eleven (11) appeared before you, one of whom was Wilfredo Torrado, Sr. The testimonies of Mr. Torrado was apparently secured when you went to the former’s residence at Pagudpud, Ilocos Norte. Mr. Torrado claimed that while he did not get the proceeds of the loan he applied for amounting to P183,781.64, amortization of said loan has been deducted from his monthly pension. This is one of the claims which SIO has in fact endorsed for refund in your DF duly approved on July 3, 1995. Incidentally, a Complaint-Affidavit against you was recently received from SPO4 Wilfredo Torrado, Sr. who claims that you offered help “for the retrieval of the unclaimed loan with a 58

Annex “8” of private respondents’ Position Paper, Annex “D” of the Petition.

31

condition that a processing fee of P5,000.00 and 10% of the total loan claimed” be paid to you in exchange. His wife, Mrs. Mercedita Torrado, apparently sent you, through Cebuana Lhuillier, the amount of P5,000 last July 4, 2015, representing part of the fee you have agreed upon. Copy of the transaction receipt P8X7KFE15K was submitted as proof of claim. Such actuation is tantamount to Dishonesty which under item D of the Code of Conduct and Discipline is defined as “any act or omission or concealment which involved a breach of legal duty, trust of confidence”. Your actuation of asking and receiving money from a client to facilitate the refund of his monetary claims, which your investigation report favorably endorses, is tantamount to a breach of legal duty, trust and confidence. Your afore-described act further constitutes a violation of Article 282 of the Labor Code, specifically under its paragraphs (a) and (c), to wit: “Art. 282. Termination by employer. An employer may terminate an employment for any of the following 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 neglect 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 representatives; and

32

(e) Other causes analogous to the foregoing.” In view of the foregoing, you are hereby directed to submit a written explanation within five (5) calendar days from your receipt hereof why you should not be dismissed and/or meted the appropriate administrative sanction for said violation. In view of the gravity and severity of this latest offense, coupled with the fact that very recently, you have been investigated for a similar charge for dishonesty which investigation is still on-going, you are hereby placed under preventive suspension for a period of thirty (3) days from your receipt of this notice. This case will be set for hearing upon receipt of your formal explanation, at which hearing, you shall have the opportunity to present evidence in your defense with the representation of a counsel of your choice should you so desire. You shall be accordingly notified of the schedule of such hearing. Please be informed that we shall treat your failure to submit written explanation within the said period and/or attend the scheduled hearing as above-stated as a waiver of your right to present your evidence and consequently, we shall proceed to decide this case based on the evidence on record.” 40.8. Accordingly, herein petitioner submitted his written explanation dated 06 June 2016, for this second charges against him.59 40.9. CONDUCT OF HEARINGS ON THE SECOND CHARGES: On the second charges, hearing was conducted by the Committee on Discipline on 15 June 2016. At the said hearing, herein petitioner was afforded the opportunity to: (1) 59

Annex “9” of private respondents’ Position Paper, Annex “D” of the Petition.

33

explain and clarify his defenses to the charge against him; (2) present evidence in support of his defense; and (3) rebut the evidence presented against him by the management of private respondent AFPSLAI. 40.10. SECOND WRITTEN NOTICE: It was only after complying fully with the first and second steps above-described that herein private respondents, fully taking into account all the evidence gathered against herein petitioner, have resolved to terminate him from employment.60 40.11. PETITIONER’S APPEAL AND/OR RECONSIDERATION: Thereafter, herein petitioner submitted a letter of appeal and/or reconsideration of his dismissal from employment.61 40.12. Finding no merit in herein petitioner’s pleas, and considering the seriousness and gravity of the offenses committed by him, his appeal and/or reconsideration was denied by AFPSLAI’s management.62 41. It bears stressing that herein private respondents did not only comply with statutory due process as above-outlined and discussed per the King of Kings doctrine and the earlier Agabon doctrine,63 but also with the latest contractual due process requisite, which has lately been mandated under the Abbott 64 Laboratories doctrine, which requires that the employer, in addition to the statutory due process, must comply with the procedural due process laid down in the company rules and regulations.

60 61 62

Annex “10” of private respondents’ Position Paper, Annex “D” of the Petition. Annex “11” of private respondents’ Position Paper, Annex “D” of the Petition. Annex “12” of private respondents’ Position Paper, Annex “D” of the Petition.

63

Agabon v. NLRC, G.R. No. 158693, Nov. 17, 2004.

64

This doctrine was enunciated in the 2013 en banc decision in the case of Abbott Laboratories, Philippines v. Pearlie Ann F. Alcaraz, G.R. No. 192571, July 23, 2013. See also the En Banc Resolution dated April 22, 2014 on the Motion for Reconsideration filed in this case.

34

42. In the instant case, compliance with the contractual due process procedure laid down in respondent AFPSLAI’s Employee Handbook / Company Code of Conduct and Discipline was made, in addition to the statutory due process as above discussed. This is exemplified in the grant to petitioner of the right to file an appeal and/or reconsideration of the Committee on Discipline’s decision to terminate him, as in fact he did file a letter of appeal and/or reconsideration of his dismissal from employment.65 It was only when the appeal and/or reconsideration was denied by AFPSLAI’s management that his termination was implemented and enforced.66 A. On the erroneous and preposterous allegation by the petitioner that the NLRC committed grave abuse of discretion amounting to lack or excess of jurisdiction when it allegedly passed sub-silencio, the fact that there was bad faith in terminating petitioner from his employment. C.

----------------------------------------

43. Petitioner claimed that the NLRC and Honorable Labor Arbiter a quo turned a blind and refused to even note his allegations of bad faith on the part of the private respondents. However, evidence on record is devoid of any evidence of the alleged bad faith on the part of the private respondents other that the self-serving allegations of herein petitioner. 44. As regards the effectivity date (June 2016) of termination of the scholarship of petitioner’s son, Carlson Reyes, the date was simply a typographical error and not an indication that complainant was already terminated as of May 31, 2016. Private respondents would like to call 65

See a copy of complainant’s letter of appeal and/or reconsideration dated 25 July 2016 which was earlier presented as Annex “11” of respondents-appellees’ Position Paper .

66

See a copy of the letter denying the appeal and/or reconsideration which was earlier presented and marked as Annex “12” of respondents-appellees’ Position Paper .

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the attention of this Honorable Court on the date of the letter which was September 29, 2016,67 or two (2) months after the effectivity of the termination from employment of herein complainant. This clearly indicates that no malice attended in terminating the scholarship of petitioner’s son. 45. With respect to the allegations of the petitioner that he suffered mental torture, humiliation and uneasiness when he was served a 30-day preventive suspension and temporarily detailed to the Office of SVP, Administration and was relieved of his functions as Security Staff pending his administrative case, petitioner is merely soliciting undeserved pity based on an unfounded allusion of ill motive on the part of the private respondents. 46. Contrary to the aforesaid allegations of herein petitioner, he himself requested that he be detailed to the Legal Department from the Office of SVP, Administration, pending the resolution of his administrative case. Said request was approved by the private respondent AFPSLAI. Thus, there is no truth to his baseless allegations that he was detailed to the Office of the SVP, Administration until final resolution of his case. 47. As extensively discussed above, there being no illegal dismissal to speak of in this case, respondent AFPSLAI could not possibly be held liable for any of the claims of herein petitioner. With more reason should the claims against herein individual private respondents, namely: Lt. Gen. Virgilio O. Domingo, Ms. Alen Gahite, Ms. Rose Santos, BGen. Luis Vinoya, Jr., Mr. Sanny Gadot and Mr. Hector Atienza (referred to herein as “individual private respondents”), be denied because they are impleaded in the instant case in their capacity as officers of private respondent AFPSLAI. As such officers, they were perfectly acting within their respective authorities when they decided to terminate herein petitioner’s employment based on very firm grounds provided under AFPSLAI’s Company Code of Conduct and Discipline, the Labor Code and pertinent jurisprudence.

67

Annex “J” of complainant’s Position Paper.

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48. The rule is well-settled that in illegal dismissal cases such as the instant case, only the juridical employer, whether it be a corporation, partnership, association or any other entity, and not its directors, trustees or officers, such as herein individual respondents, which may be held liable for monetary claims of employees or for all the consequences of the illegality of their dismissal or for other wrongful acts.68 49. Thus, responsibility for the obligation of the employer in an illegal dismissal case under Article 294 [279] of the Labor Code, such as actual reinstatement or the payment of separation pay in lieu of reinstatement, full backwages, moral and exemplary damages, attorney’s fees and other monetary awards devolves only upon the employer entity.69 50. The rationale is that a corporation, partnership, association or any other entity, by legal fiction, is a juridical person with legal personality separate and distinct from those acting for and in its behalf and, in general, from the people composing it such as its stockholders, directors, trustees or officers and from that of any other legal entity to which it may be related. The rule is that obligations incurred by such juridical persons, acting through its directors, trustees, officers and employees, are its sole liabilities. Such liabilities are not the personal liabilities of their owners and vice versa.70 51. The only way herein individual private respondents may be held personally and solidarily liable with respondent AFPSLAI, is when herein petitioner would be able to successfully prove that bad faith attended his dismissal. Unfortunately, other than petitioner’s selfserving allegations, he failed to establish bad faith on the part of the private respondents.

68

Brent Hospital, Inc. v. NLRC, G.R. No. 117593, July 10, 1998, 292 SCRA 304; See also Mirant (Philippines) Corporation v. Caro, G.R. No. 181490, April 23, 2014; MAM Realty Development Corporation v. NLRC, G.R. No. 114787, June 2, 1995, 244 SCRA 797.

69

Seaborne Carriers Corporation v. NLRC, G.R. No. 88795, Oct. 04, 1994; Gudez v. NLRC, G.R. No. 83023, March 23, 1990; A. C. Ransom Labor Union-CCLU v. NLRC, G.R. No. 69494, June 10, 1986.

70

Deoferio v. Intel Technology Philippines, Inc., G.R. No. 202996, June 18, 2014; Alba v. Yupangco, G.R. No. 188233, June 29, 2010.

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52. However, before petitioner can successfully so assert, he must be able to comply with the following two (2) requisites enunciated in the 2013 case of Polymer Rubber Corporation and Joseph Ang v. Bayolo Salamuding,71 thus: (a) It must be alleged in the complaint that the director or officer assented to patently unlawful acts of the corporation or that the officer was guilty of gross negligence or bad faith; and (b) There must be proof that the officer acted in bad faith. 53. Indeed, the principle remains deeply entrenched that a corporation, as a juridical entity, may act only through its directors, officers and employees. Obligations incurred as a result of the directors’ and officers’ acts as corporate agents, are not their personal liability but the direct responsibility of the corporation they represent.72 54. To justify solidary liability, there must be an allegation or showing that the officers of the corporation have acted in bad faith or with malice,73 deliberately or maliciously designed to evade the financial obligation of the corporation to its employees or a showing that the officers indiscriminately stopped its business to perpetrate an illegal act as a vehicle for the evasion of existing obligations, in circumvention of statutes, and to confuse legitimate issues.74 Moreover, corporate officers are not personally liable for their official acts unless they have exceeded their authority.75 71

G.R. No. 185160, July 24, 2013.

72

Polymer Rubber Corporation and Joseph Ang v. Bayolo Salamuding, G.R. No. 185160, July 24, 2013; Peñaflor v. Outdoor Clothing Manufacturing Corporation, G.R. No. 177114, April 13, 2010, 618 SCRA 208, 216.

73

See, for example, The Coffee Bean and Tea Leaf Philippines, Inc. v. Rolly P. Arenas, G.R. No. 208908, March 11, 2015; v. Mallen, Jr., G.R. No. 173169, Sept. 22, 2010, 631 SCRA 118, 125; Sunio v. NLRC, G.R. No. L-57767, Jan. 31, 1984, 127 SCRA 390; See also EPG Constructions Co. v. CA, G.R. No. 103372, June 22, 1992, 210 SCRA 230.

74

Reahs v. NLRC, G.R. No. 117473, April 15, 1997; Pabalan v. NLRC, G.R. No. 89879, April 20, 1990, 184 SCRA 495.

75

Bogo-Medellin Sugarcane Planters Association, Inc. v. NLRC, G.R. No. 97846, Sept. 25, 1998.

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55. Bad faith, however, is never presumed.76 The term “bad faith” contemplates a “state of mind affirmatively operating with furtive design or with some motive of self-interest or will or for ulterior purpose.”77 It does not simply connote bad judgment or negligence78 - it imports a dishonest purpose or some moral obliquity and conscious doing of wrong.79 It means a breach of a known duty through some motive or interest or ill-will that partakes of the nature of fraud.80 Consequently, if it is not proven that the corporate officers have acted with malice, ill-will or bad faith, they cannot be held liable for the monetary claims of the employees.81 56. Bad faith in illegal termination cases must be established clearly and convincingly. The principle on bad faith finds more significance in illegal termination cases where as a rule, corporate officers are only solidarily liable with the corporation for the illegal termination of services of employees if they acted with malice or bad faith.82 This is so because a corporation, by legal fiction, has a personality separate and distinct from its officers, stockholders and members. In the absence therefore of 76

Solidbank Corporation v. Gamier, G.R. Nos. 159460 & 159461, Nov. 15, 2010; McLeod v. NLRC, G.R. No. 146667, Jan. 23, 2007, 512 SCRA 222, 246, citing Rufina Luy Lim v. CA, G.R. No. 124715. Jan. 24, 2000, 380 Phil. 60, and Del Rosario v. NLRC, G.R. No. 85416, July 24, 1990, 187 SCRA 777.

77

Lynvil Fishing Enterprises, Inc. v. Ariola, G.R. No. 181974, Feb. 1, 2012; Air France v. Carrascoso, G.R. No. L-21438, Sept. 28, 1966, 18 SCRA 155, 166-167.

78

Fernandez and Beltran v. Newfield Staff Solutions, Inc., G.R. No. 201979, July 10, 2013.

79

Id.

80

Solidbank Corporation v. Gamier, supra; Mandaue Dinghow Dimsum House, Co., Inc. and/or Henry Uytengsu v. NLRC, G.R. No. 161134, March 3, 2008, 547 SCRA 402; Malayang Samahan ng mga Manggagawa sa M. Greenfield v. Ramos, G.R. No. 113907, April 20, 2001; Ford Philippines, Inc. v. CA, G.R. No. 99039, Feb. 3, 1997, 267 SCRA 320, 328.

81

Solidbank Corporation v. Gamier, G.R. Nos. 159460 & 159461, Nov. 15, 2010; See also SME Bank, Inc. v. De Guzman, G. R. Nos. 184517 & 186641, Oct. 8, 2013 (En Banc); Wensha Spa Center, Inc. v. Yung, G.R. No. 185122, Aug. 16, 2010; SHS Perforated Materials, Inc. v. Diaz, G.R. No. 185814, Oct. 13, 2010; M + W Zander Philippines, Inc. and Rolf Wiltschek v. Enriquez, G.R. No. 169173, June 5, 2009, 588 SCRA 590, 610-611; Bogo-Medellin Sugarcane Planters Association, Inc. v. NLRC, G.R. No. 97846, Sept. 25, 1998, 357 Phil. 110; Businessday Information Systems and Services, Inc. (BISSI) v. NLRC, G.R. No. 103575, April 5, 1993, 221 SCRA 9.

82

Manarpiis v. Texan Philippines, Inc., G.R. No. 197011, Jan. 28, 2015.

39

malice or bad faith, they cannot be made personally liable for corporate liabilities.83 And even if there is allegation of bad faith or wrongdoing, the same must be established clearly and convincingly.84 57. Thus, the mere lack of just or authorized cause to terminate one’s employment and the failure to observe procedural due process do not ipso facto mean that the corporate officer acted with malice or bad faith. There must be independent proof of malice or bad faith. If there is none as would sufficiently justify a ruling holding the corporate officer solidarily liable with the corporation, he cannot be so held liable.85 58. All the foregoing legal tenets considered, it is well-nigh impossible for herein petitioner to prove bad faith on the part of herein individual respondents, considering that his termination is well supported by evidence of existence of just causes and full compliance with the procedural due process requirement laid down in the law and in jurisprudence. PETITIONER IS NOT ENTITLED TO THE RELIEFS HE PRAYED FOR, SUCH AS, MORAL AND EXEMPLARY DAMAGES AND ATTORNEY’S FEES. ---------------------------------------59. It bears stressing that petitioner has no legal basis in claiming moral and exemplary damages and attorney’s fees. The award of these reliefs presupposes 83

Culili v. Eastern Telecommunications Philippines, Inc., G.R. No. 165381, Feb. 9, 2011; See also Torres v. Rural Bank of San Juan, Inc., G.R. No. 184520, March 13, 2013; Blue Sky Trading Company, Inc. v. Bias, G.R. No. 190559, March 7, 2012, 667 SCRA 727; Intertranz Container Lines, Inc. v. Bautista, G.R. No. 187693, July 13, 2010; Tan v. Timbal, Jr., G.R. No. 141926, July 14, 2004; See also Price v. Innodata Phils., Inc./Innodata Corp., G.R. No. 178505, Sept. 30, 2008; Siemens Philippines, Inc. v. Domingo, G.R. No. 150488, July 28, 2008; Petron Corp. v. NLRC, G.R. No. 154532, Oct. 27, 2006.

84

McLeod v. NLRC, G.R. No. 146667, Jan. 23, 2007, citing Rufina Luy Lim v. CA, G.R. No. 124715. Jan. 24, 2000, 380 Phil. 60 and Del Rosario v. NLRC, G.R. No. 85416, July 24, 1990, 187 SCRA 777.

85

Lambert Pawnbrokers and Jewelry Corp. v. Binamira, G.R. No. 170464, July 12, 2010.

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that the dismissal was illegal. The fact that he was not illegally dismissed from his employment, therefore, makes his claims absurd and highly preposterous. Obviously, his allegations are based on speculation and conjecture unsupported by any evidence that would strengthen his claim. 60. Insofar as the claims for moral and exemplary damages and attorney’s fees are concerned, the validity thereof hinges not merely on the fact of the illegality of petitioner’s dismissal but on some most vital, qualifying factors. On moral and exemplary damages. 60.1. In Primero v. IAC,86 the Supreme Court stated that moral damages cannot be justified solely upon the premise that the employer fired his employee without just cause or due process. Additional facts must be pleaded and proven to warrant the grant of moral damages under the Civil Code. Simply stated, the employee is entitled to moral damages only when the employer acted: a) in bad faith or fraud; b) in a manner oppressive to labor; or c) in a manner contrary to morals, good customs, or public policy.87 60.2. The award of moral damages therefore must be deleted if the evidence is wanting that would indicate any of the foregoing circumstances.88 Broad allegations, bereft of proof, cannot sustain the award of moral damages.89 If there is no evidence to show that the 86

G.R. No. L- 72644, Dec. 14, 1987.

87

See Nancy S. Montinola v. Philippine Airlines, G.R. No. 198656, Sept. 08, 2014.

88

Globe Telecom, Inc. v. Florendo-Flores, G.R. No. 150092, Sept. 27, 2002); Nueva Ecija I Electric Cooperative, Inc. v. NLRC, G.R. No. 116066, Jan. 24, 2000.

89

Mora v. Avesco Marketing Corporation, G.R. No. 177414, Nov. 14, 2008.

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dismissal of an employee had been carried out arbitrarily, capriciously and maliciously and with personal ill-will, moral damages cannot be awarded.90 60.3. Malice or bad faith implies a conscious and intentional design to do a wrongful act for a dishonest purpose or moral obliquity.91 It is different from the negative idea of negligence in that malice or bad faith contemplates a state of mind affirmatively operating with furtive design or ill-will.92 It also partakes of the nature of fraud.93 60.4.

Cathay Pacific Airways v. Spouses Vazquez,94 established that bad faith must be proven through clear and convincing evidence.95 This is because “[b]ad faith and fraud ... are serious accusations that can be so conveniently and casually invoked, and that is why they are never presumed. They amount to mere slogans or mudslinging unless convincingly substantiated by whoever is alleging them.”96

60.5. Absent any qualifying circumstances, mere finding of illegality of dismissal does not justify award of moral and 90

Blue Sky Trading Company, Inc. v. Bias, G.R. No. 190559, March 7, 2012, 667 SCRA 727; Chaves v. NLRC, G.R. No. 166382, June 27, 2006, 493 SCRA 434; Aliviado v. Procter & Gamble Phils., Inc., G.R. No. 160506, May 9, 2010.

91

Laureano Investments and Development Corp. v. CA, G.R. No. 100468, May 6, 1997, 338 Phil. 759, 771.

92

Litonjua Group of Companies v. Vigan, G.R. No. 143723, June 28, 2001; Equitable Banking Corporation v. NLRC, G.R. No. 102467, June 13, 1997.

93

Torres v. Rural Bank of San Juan, Inc., G.R. No. 184520, March 13, 2013; Wensha Spa Center, Inc. v. Yung, G.R. No. 185122, Aug. 16, 2010, 628 SCRA 311, 326. Pacquing v. Coca-Cola Philippines, Inc., G.R. No. 157966, Jan. 31, 2008, 543 SCRA 344.

94

G.R. No. 150843, March 14, 2003, 447 Phil. 306.

95

Id. at 321.

96

Id.

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exemplary damages. This is so because the finding that the employee has been wrongfully dismissed does not automatically warrant an award of moral and exemplary damages. A dismissal may be contrary to law but by itself alone, it does not establish bad faith to entitle the dismissed employee to moral and exemplary damages.97 60.6. Hence, if there is no clear and convincing evidence on record showing that the termination of an employee’s services had been carried out in an arbitrary, capricious and malicious manner with evident personal ill-will, moral damages should not be awarded. Mere allegations of besmirched reputation, embarrassment, humiliation and sleepless nights are insufficient to warrant an award for moral damages. It must be shown that the proximate cause thereof was the unlawful act or omission of the employer.98 60.7. Moral damages are not intended to enrich a complainant at the expense of a defendant. Such damages are awarded only to enable the injured party to obtain means, diversion, or amusements that will serve to alleviate the moral suffering he has undergone, by reason of the defendant’s culpable action.99 60.8. No award of moral damages would result in no award of exemplary damages and attorney’s fees. If moral damages cannot be granted under the 97

Palmeria v. NLRC, G.R. No. 113290-91, Aug. 3, 1995; Primero v. IAC, G.R. No. L- 72644, Dec. 14, 1987.

98

Servidad v. NLRC, G.R. No. 128682, March 18, 1999; Wiltshire File Co., Inc. v. NLRC, G.R. No. 82249, Feb. 7, 1991; Colegio de San Juan de Letran - Calamba v. Villas, G.R. No. 137795, March 26, 2003; Philippine Airlines, Inc. v. NLRC, G.R. No. 132805, Feb. 2, 1999; Chaves v. NLRC, G.R. No. 166382, June 27, 2006.

99

Balayan Colleges v. NLRC, G.R. Nos. 101070 and 101289, March 14, 1996.

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facts of a case, the consequence is that there can also be no award of exemplary damages and attorney's fees.100 Thus, in Blue Sky Trading Company, Inc. v. Bias,101 the decision rendered by the NLRC on November 29, 2007, which the CA affirmed, did not award in favor of respondents, moral and exemplary damages. Consequently, the award in the respondents' favor of ten percent (10%) attorney's fees was deleted. This is so because albeit respondents’ dismissal from service was found to be illegal, bad faith cannot be attributed on the part of petitioner Blue Sky which merely acted with an intent to protect its interest. Hence, the NLRC's award of ten percent (10%) attorney's fees in respondents' favor lacks any basis. 60.9. Exemplary damages need not be proved but it must be shown that complainant is entitled to moral, temperate or compensatory damages. While the amount of exemplary damages need not be proved, the plaintiff must show that he is entitled to moral, temperate or compensatory damages before the court may consider the question of whether or not exemplary damages should be awarded.102

On attorney’s fees. 60.10. Verily, petitioner is not entitled to his claim for attorney’s fees. The general rule is that attorney’s fees cannot be recovered as part of damages because 100

Pacquing v. Coca-Cola Philippines, Inc., G.R. No. 157966, Jan. 31, 2008; See also Acuña v. CA, G.R. No. 159832, May 5, 2006, 489 SCRA 658; Bernardo v. CA, G.R. No. 106153, July 14, 1997, 341 Phil. 413.

101

G.R. No. 190559, March 7, 2012, 667 SCRA 727.

102

Article 2234, Civil Code.

44

of the policy that no premium should be placed on the right to litigate. They are not be awarded everytime a party wins a suit. Even when a claimant is compelled to litigate with third persons or to incur expenses to protect his rights, still attorney’s fees may not be awarded where there is no sufficient showing of bad faith in the parties’ persistence of a case other than an erroneous conviction of the 103 righteousness of his cause. 60.11. And even if the dismissal is declared illegal, but if it is not attended with bad faith, attorney’s fees should not be awarded. In the 2010 case of Philippine Airlines, Inc. v. NLRC,104 the dismissal of private respondent was held valid; however, on equitable grounds, she was awarded separation pay since the transgressions imputed to her have never been firmly established as deliberate and willful acts clearly directed at making petitioner lose millions of pesos and at the very most, they can only be characterized as unintentional, albeit major, lapses in professional judgment. Likewise, the same cannot be described as morally reprehensible actions. However, the award of attorney’s fees was considered not proper because, according to the High Court, the same can only be granted when the employee is illegally dismissed in bad faith and is compelled to litigate or incur expenses to protect her rights by reason of the unjustified act of her employer. These conditions do

103

Citytrust Banking Corporation vs. Isagani C. Villanueva, 361 SCRA 446; See also Lopez vs. NLRC, et al., G. R. No. 124548, October 8, 1998.

104

G.R. No. 123294, Oct. 20, 2010.

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not obtain in this case.105 This ruling was also made in the 2012 case of Wuerth Philippines, Inc. v. Ynson,106 in view of the lack of evidence that respondent’s dismissal was tainted with bad faith. PRAYER WHEREFORE, premises considered, it is most respectfully prayed of this Honorable Court that the instant Comment/Opposition be DULY NOTED and the instant Petition for Certiorari be DENIED and/or DISMISSED for utter lack of merit. OTHER RELIEFS, as may be just and equitable in the premises, are likewise most respectfully prayed for. Respectfully Submitted. Pasig City for City of Manila, 12 January 2018. THE LAW FIRM OF CHAN ROBLES AND ASSOCIATES Counsel for the Private Respondents 22nd Floor, Suite 2205, Tektite East Tower Philippine Stock Exchange Centre, Exchange Road Ortigas Center, Pasig City, Metro Manila Telephone Nos. 634-0741 to 45; Fax No. 634-0736 www.chanrobles.com; Email: [email protected] By: CESAR BECERRO TUOZO PTR NO. 3865426; 01.06.2018; PASIG CITY IBP-LRN 06225; 01.04.07; SURIGAO DEL NORTE MCLE Compliance No. V 0012706; 12.04.14 Roll of Attorneys No. 38433

105

Citing Pepsi Cola Products Philippines, Inc. v. Santos, G.R. No. 165968, April 14, 2008, 551 SCRA 245, 25.

106

G.R. No. 175932, Feb. 15, 2012.

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JADE FERRER WY PTR NO. 3865425; 01.06.2018; PASIG CITY IBP-LRN 05961 [LIFETIME]; 09.14.07; RSM MCLE Compliance No. V 0001117; 11.21.13 Roll of Attorneys No. 38433

ODESSA DELA CRUZ BERNARDO PTR NO. 3865429; 01.06.2018; PASIG CITY IBP-LRN 05962; 09.14.2007; BULACAN ROLL OF ATTORNEY NO. 50480 MCLE COMPLIANCE NO. VI – 0001723; 02.20.17

Copy furnished: REYES & ASSOCIATES ATTY. ELEUTERIO J. REYES Counsel for the Petitioner 41 Lourdes Street, Victory Heights Novaliches Caloocan City National Labor Relations Commission Second Division PPSTA Building Banawe Street, Quezon City Metro Manila

Explanation: Copies of the instant Comment/Opposition to the Petition for Certiorari are being served to the above-mentioned addressees, by registered mail with return card due to distance and lack of material time to effectuate the preferred mode of service.

47