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National Service Corporation (NASECO) vs. NLRC
G.R. No. L-69870 November 29, 1988

FACTS: Eugenia C. Credo was an employee of the NASECO, a
domestic corporation which provides security guards to PNB and its
agencies. She was first employed with NASECO as a lady guard
through the years, she was promoted to Clerk Typist, then Personnel
Clerk until she became Chief of Property and Records.

Credo was administratively charged by Sisinio S. Lloren, Manager of
Finance and Special Project and Evaluation Department of NASECO,
stemming from her non-compliance with Lloren's memorandum,
regarding certain entry procedures in the company's Statement of
Billings Adjustment. Said charges alleged that Credo "did not comply
with Lloren's instructions to place some corrections/additional remarks
in the Statement of Billings Adjustment; and when [Credo] was called
by Lloren to his office to explain further the said instructions, [Credo]
showed resentment and behaved in a scandalous manner by shouting
and uttering remarks of disrespect in the presence of her co-

Credo was called to meet Arturo L. Perez, then Acting General
Manager of NASECO, to explain her side in connection with the
administrative charges filed against her. After said meeting, on the
same date, Credo was placed on "Forced Leave" status for 15 days.

Before the expiration of said 15-day leave, Credo filed a complaint, with
the Arbitration Branch, National Capital Region, Ministry of Labor and
Employment, Manila, against NASECO for placing her on forced leave,
without due process.

Likewise, while Credo was on forced leave, NASECO's Committee on
Personnel Affairs deliberated and evaluated a number of past acts of
misconduct or infractions attributed to her. As a result of this
deliberation, said committee resolved that, Credo committed the
following offenses in the Code of Discipline, viz: discourteous act to
customer, officer and employee of client company or officer of the
Corporation, Exhibit marked discourtesy in the course of official duties
or use of profane or insulting language to any superior officer, Failure to
comply with any lawful order or any instructions of a superior officer.

The Management has already given due consideration to
Credoscandalous actuations for several times in the past. Records also
show that she was reprimanded for some offense and did not question
it. Management at this juncture, has already met its maximum tolerance
point so it has decided to put an end to Credo being an undesirable

The committee recommended Credo's termination, with forfeiture of
benefits. Credo was informed that she was being charged with certain
offenses. Notably, these offenses were those which NASECO's
Committee on Personnel Affairs already resolved, have been
committed by Credo.

In Perez's office, and in the presence of NASECO's Committee on
Personnel Affairs, Credo was made to explain her side in connection
with the charges filed against her; however, due to her failure to do so,
she was handed a Notice of Termination. Hence, Credo filed a
supplemental complaint for illegal dismissal, alleging absence of just or
authorized cause for her dismissal and lack of opportunity to be heard.

Labor arbiter: rendered a decision dismissing Credo's complaint, and
directing NASECO to pay Credo separation pay equivalent to one half
month's pay for every year of service.

NLRC: rendered a decision directing NASECO to reinstate Credo to her
former position, or substantially equivalent position, with six (6) months'
backwages and without loss of seniority rights and other privileges
appertaining thereto, and dismissing Credo's claim for attorney's fees,
moral and exemplary damages.

ISSUE 1: WON petitioners violated the requirements mandated by
law on termination,

HELD: 1. Yes. NASECO violated the requirements mandated by law on
These guidelines mandate that the employer furnish an employee
sought to be dismissed two (2) written notices of dismissal before a
termination of employment can be legally effected. These are the notice
which apprises the employee of the particular acts or omissions for
which his dismissal is sought and the subsequent notice which informs
the employee of the employers decision to dismiss him.

Likewise, a reading of the guidelines in consonance with the express
provisions of law on protection to labor (which encompasses the right to
security of tenure) and the broader dictates of procedural due process
necessarily mandate that notice of the employers decision to dismiss
an employee, with reasons therefor, can only be issued after the
employer has afforded the employee concerned ample opportunity to
be heard and to defend himself.

In the case at bar, NASECO did not comply with these guidelines in
effecting Credos dismissal. Although she was apprised and given the
chance to explain her side of the charges filed against her, this chance
was given so perfunctorily, thus rendering illusory Credos right to
security of tenure. That Credo was not given ample opportunity to be
heard and to defend herself is evident from the fact that the compliance
with the injunction to apprise her of the charges filed against her and to
afford her a chance to prepare for her defense was dispensed in only a
day. This is not effective compliance with the legal requirements

The fact also that the Notice of Termination of Credos employment (or
the decision to dismiss her) was dated 24 November 1983 and made
effective 1 December 1983 shows that NASECO was already bent on
terminating her services when she was informed on 1 December 1983
of the charges against her, and that any hearing which NASECO
thought of affording her after 24 November 1983 would merely be pro
forma or an exercise in futility.

Besides, Credos mere non-compliance with Lorens memorandum
regarding the entry procedures in the companys Statement of Billings
Adjustment did not warrant the severe penalty of dismissal.
ISSUE 2: WON the alleged infractions committed by Credo were
not proven or, even if proved, could be considered to have been
condoned by petitioners.

HELD 2: Yes. Of course, in justifying Credos termination of
employment, NASECO claims as additional lawful causes for dismissal
Credos previous and repeated acts of insubordination, discourtesy and
sarcasm towards her superior officers, alleged to have been committed
from 1980 to July 1983. If such acts of misconduct were indeed
committed by Credo, they are deemed to have been condoned by
NASECO. For instance, sometime in 1980, when Credo allegedly
reacted in a scandalous manner and raised her voice in a discussion
with NASECOs Acting head of the Personnel Administration, no
disciplinary measure was taken or meted against her. Nor was she
even reprimanded when she allegedly talked in a shouting or yelling
manner with the Acting Manager of NASECOs Building Maintenance
and Services Department in 1980, or when she allegedly shouted at
NASECOs Corporate Auditor in front of his subordinates displaying
arrogance and unruly behavior in 1980, or when she allegedly shouted
at NASECOs Internal Control Consultant in 1981. But then, in sharp
contrast to NASECOs penchant for ignoring the aforesaid acts of
misconduct, when Credo committed frequent tardiness in August and
September 1983, she was reprimanded.

ISSUE 3: WON petitioners failed in the burden of proving that the
termination of Credo was for a valid or authorized cause and the
termination of Credo was not for a valid or authorized cause.

HELD 3: Yes. Considering that the acts or omissions for which Credos
employment was sought to be legally terminated were insufficiently
proved, as to justify dismissal, reinstatement is proper. For absent the
reason which gave rise to [the employees] separation from
employment, there is no intention on the part of the employer to dismiss
the employee concerned. And, as a result of having been wrongfully
dismissed, Credo is entitled to three (3) years of backwages without
deduction and qualification.

ISSUE 4: WON NLRC has jurisdiction.

HELD 4: Yes. It would appear that, in the interest of justice, the holding
in said case should not be given retroactive effect, that is, to cases that
arose before its promulgation on 17 January 1985. To do otherwise
would be oppressive to Credo and other employees similarly situated,
because under the same 1973 Constitution but prior to the ruling in
National Housing Corporation vs. Juco, this Court had recognized the
applicability of the Labor Code to, and the authority of the NLRC to
exercise jurisdiction over, disputes involving terms and conditions of
employment in government-owned or controlled corporations, among
them, the National Service Corporation (NASECO).

On the premise that it is the 1987 Constitution that governs the instant
case because it is the Constitution in place at the time of decision
thereof, the NLRC has jurisdiction to accord relief to the parties. As an
admitted subsidiary of the NIDC, in turn a subsidiary of the PNB, the
NASECO is a government-owned or controlled corporation without
original charter.

The decision of the NLRC is AFFIRMED with modifications. 1) reinstate
Eugenia C. Credo to her former position at the time of her termination,
or if such reinstatement is not possible, to place her in a substantially
equivalent position, with three (3) years backwages, from 1 December
1983, without qualification or deduction, and without loss of seniority
rights and other privileges appertaining thereto, and 2) pay Eugenia C.
Credo P5,000.00 for moral damages and P5,000.00 for attorney's fees.

If reinstatement in any event is no longer possible because of
supervening events, ordered to pay Eugenia C. Credo, in addition to
her backwages and damages as above described, separation pay
equivalent to one-half month's salary for every year of service, to be
computed on her monthly salary at the time of her termination on 1
December 1983.


Private respondent Central Philippine Union Mission
Corporation of the Seventh Day Adventists (SDA) is a religious
corporation under Philippine law and is represented by the other private
respondents. Petitioner was a pastor of SDA until 1991, when his
services were terminated. Austria worked with SDA for 28 years. He
started as a literature evangelist in 1963 then got promoted several
times. He became the Assistant Publishing Director in the West
Visayan Mission of the SDA in 1968 and Pastor in the West Visayan
Mission in 1972.Finally in 1989, he was promoted as District Pastor of
the Negros Mission of the SDA.
On various occasions from August to October 1991, Austria
received several communications from Mr. Ibesate, treasurer of the
Negros Mission, asking the former to admit accountability and
responsibility for the church tithes and offerings collected by his wife,
Thelma Austria, in his district and to remit the same to the Negros
Mission. In his answer, petitioner said that he should not be made
accountable since it was private respondent Pastor Buhat and Mr.
Ibesate who authorized his wife to collect the tithes and offerings since
he was very sick to do the collecting at that time. Thereafter, petitioner
went to the office of Pastor Buhat, president of the Negros Mission, and
asked for a convention to settle the dispute between petitioner and
Pastor Rodrigo. Pastor Buhat denied the request of petitioner because
there was no quorum. The two exchanged heated arguments until
petitioner left the office. However, while on his way out, he heard Pastor
Buhat saying, "Pastor daw inisog na ina iya (Pador you are talking
tough) which prompted him to go back and overturn Pastor Buhat
table, scatter books in the office, bang Buhat attach case and throw
the phone. Petitioner received a letter inviting him and his wife to attend
the meeting to discuss the non-remittance of church collection and the
events that transpired between him and Pastor Buhat.
A fact-finding committee was created to investigate petitioner.
Subsequently, petitioner received a letter of dismissal citing
misappropriation of denominational funds, willful breach of trust, serious
misconduct, gross and habitual neglect of duties, and commission of an
offense against the person of employer's duly authorized
representative, as grounds for the termination of his services Petitioner
filed a complaint with the Labor Arbiter for illegal dismissal. = decision
rendered in favor of petitioner 2) SDA appealed to NLRC = decision
rendered in favor of respondent3) Petitioner filed motion for
reconsideration = reinstated decision of Labor Arbiter 4) SDA filed
motion for reconsideration = decision rendered in favor of respondent
Hence, this recourse to the court by the petitioner.

1) WON the Labor Arbiter/NLRC has jurisdiction to try and decide the
complaint filed by petitioner against the SDA
2) WON the termination of the services of petitioner is an ecclesiastical
affair, and, as such, involves the separation of church andstate;

The NLRC grounded its findings on the following postulates: (a)
the witnesses of PHILSTEEL are credible for petitioner failed to show
any ground for them to falsely testify, especially in the light of his
excellent job performance; and, (b) respondents' witnesses are more
credible than petitioner's Lukban who, insofar as the source of the
information is concerned, impressed the NLRC as evasive.
NLRC however entertained a patent misapprehension of the burden of
proof rule in labor termination cases. Unlike in other cases where the
complainant has the burden of proof to discharge, in labor cases
concerning illegal dismissals, the burden of proving that the employee
was dismissed with just cause rests upon the employer.
Such is the
mandate of Art. 278 of the Labor Code.



Agabon vs NLRC

Facts: Private respondent Riviera Home Improvements, Inc. is
engaged in the business of selling and installing ornamental and
construction materials. It employed petitioners Virgilio Agabon and
Jenny Agabon as gypsum board and cornice installers on January 2,
1992 until February 23, 1999 when they were dismissed for
abandonment of work.

Petitioners then filed a complaint for illegal dismissal and payment of
money claims and on December 28, 1999, the Labor Arbiter rendered a
decision declaring the dismissals illegal and ordered private respondent
to pay the monetary claims.

Issue: Whether or not respondents dismissal is illegal and if not,
entitles them benefits.

Ruling: The Court ruled that the dismissal is legal and entitles them of
payment of benefits.

Dismissals based on just causes contemplate acts or omissions
attributable to the employee while dismissals based on authorized
causes involve grounds under the Labor Code which allow the
employer to terminate employees. A termination for an authorized
cause requires payment of separation pay. When the termination of
employment is declared illegal, reinstatement and full back wages are
mandated under Article 279. If reinstatement is no longer possible
where the dismissal was unjust, separation pay may be granted.

Procedurally, (1) if the dismissal is based on a just cause under Article
282, the employer must give the employee two written notices and a
hearing or opportunity to be heard if requested by the employee before
terminating the employment: a notice specifying the grounds for which
dismissal is sought a hearing or an opportunity to be heard and after
hearing or opportunity to be heard, a notice of the decision to dismiss;
and (2) if the dismissal is based on authorized causes under Articles
283 and 284, the employer must give the employee and the
Department of Labor and Employment written notices 30 days prior to
the effectivity of his separation.

From the foregoing rules four possible situations may be derived: (1)
the dismissal is for a just cause under Article 282 of the Labor Code, for
an authorized cause under Article 283, or for health reasons under
Article 284, and due process was observed; (2) the dismissal is without
just or authorized cause but due process was observed; (3) the
dismissal is without just or authorized cause and there was no due
process; and (4) the dismissal is for just or authorized cause but due
process was not observed.

In the fourth situation, the dismissal should be upheld. While the
procedural infirmity cannot be cured, it should not invalidate the
dismissal. However, the employer should be held liable for non-
compliance with the procedural requirements of due process.

The present case squarely falls under the fourth situation. The
dismissal should be upheld because it was established that the
petitioners abandoned their jobs to work for another company. Private
respondent, however, did not follow the notice requirements and
instead argued that sending notices to the last known addresses would
have been useless because they did not reside there anymore.
Unfortunately for the private respondent, this is not a valid excuse
because the law mandates the twin notice requirements to the
employees last known address. Thus, it should be held liable for non-
compliance with the procedural requirements of due process.

The Court ruled that respondent is liable for petitioners holiday pay,
service incentive leave pay and 13th month pay without deductions.
The evident intention of Presidential Decree No. 851 is to grant an
additional income in the form of the 13th month pay to employees not
already receiving the same so as to further protect the level of real
wages from the ravages of world-wide inflation. Clearly, as additional
income, the 13th month pay is included in the definition of wage under
Article 97(f) of the Labor Code.

An employer is prohibited under Article 113 of the same Code from
making any deductions without the employees knowledge and consent.



Petitioner Columbus Philippines Bus Corporation is engaged in
the business of operating passenger buses. Since the start of its
operation in 1990 it has maintained a list of drivers and conductors who
rendered service in bus units allegedly on a first come first served
basis and compensated purely on commission. The drivers and
conductress worked for about ten to fifteen days a month and were
allegedly not required to work everyday.
Private respondent Roman Domasig started working as a driver with
the petitioner on August 30, 1990 while his wife and respondent
ZenaidaDomasig was employed as a bus conductress. The
employment of private respondents with the petitioner was abruptly
terminated for their having alleged formed a labor union. Roman
Domasig narrated that on January 21, 1992, he was forced to vacate
the bus he was regularly driving because of the alleged formed labor
union and from that time was never allowed to work with the petitioner.
Zenaida and Roman also narrated that they planned to put up a labor
union because of illegal deductions, excessive work for 19 to 20 hours
per day, and unfair labor practice by the petitioner. Upon learning of the
alleged formed labor union, one of the officers of the petitioner
AttyCatabian called the attention of Roman for the alleged union labor
and informed him that he will surely dismissed him from work. Thus two
cases of unfair practice labor, illegal dismissal, non-payment of service
incentive leave pay and 13
month pay were instituted by private
respondents against petitioner. Labor Arbiter found for the private
respondents and ordered the petitioner to reinstate them to their former
positions, without loss of seniority rights and with backpay. Aggrieved
by the reversed judgment of the Labor Arbiter, petitioner appealed to
the NLRC. Petitioner alleges that private respondents are not regular
employees. NLRC affirmed the decision of the Labor Arbiter that they
were illegally dismissed and that private respondents are regular
employees of the petitioner because of the reasonable connection of
the specific activity performed by the employee in relation to the usual
trade or business of the employer. Petitioner again appealed to the CA
but affirmed the decision of the NLRC. They brought their case to the
Supreme Court presenting its main argument that their termination was
a valid and authorized cause on the ground of abandonment of work.

Whether or not private respondents are illegally dismissed.

The Supreme Court held that private respondents are illegally
dismissed. In termination cases, the burden of proving that the
dismissal of the employees was for a valid and authorized cause rests
on the employer. It was incumbent upon the petitioner to show by
substantial evidence that the termination of the employees was validly
made and upon failure to discharge that duty would mean that the
dismissal is not justified and therefore illegal. On the other hand,
abandonment as a just and valid ground for dismissal requires the
deliberate, unjustified refusal of the employee to resume his
employment. Mere absence or failure to report for work, after notice to
return is not enough to amount such abandonment. For a valid finding
of abandonment two factors must be present: the failure to report for
work without valid or justifiable reason and clear intention to severe
employer employee relationship. Private respondents were asked to
relinquish their assigned buses and from that date forward they were
not given bus assignments. Thus under the circumstances private
respondents absences are supported with valid reason and that they
never intended to severe their employer employee relationship. Private
respondents are illegally dismissed.


CHUAKAY and WILLIAM GO, petitioners,

Private respondents are employees of petitioners. They formed
a labor organization, affiliating themselves with Federation of Free
Workers, calling themselves FFW-kapatirangManggagawasa De
Paul/King Philip customs Tailor. On march 1993, the union filed a
notice of strike due to unfair labor practice. On 6 April 1993, the union
president, private respondent Victoriano Santos, stopped working. This
was followed by the "walk out" of the other private respondents from
their jobs on 12 April 1993.
On 13 May 1993, the union filed against the petitioners a case
for unfair labor practice, illegal dismissal and non-payment of overtime
pay before the NLRC National Capital Region Arbitration Branch.
On 21 June 1993, private respondents disaffiliated from the FFW. The
disaffiliation was caused by the failure of FFW to send a representative
in two hearings of the case of the private respondents before the labor
Private respondents claimed that they were previously warned
by the petitioners not to organize a union, nor be a member of the
same. Otherwise, they will be dismissed. Nevertheless, they still formed
the said union.
Petitioners denied dismissing the respondents, arguing further
that the respondents walked out from their jobs to prepare for a strike to
extort money from them. Petitioners contend that they sent notices to
respondents to return to work, save two workers who refused to accept
the same.
Respondents denied having received any notice to return to
work. They alleged that they were even prevented to enter the
premises of the work place and were threatened by hired policemen
who possessed fake warrants of arrest.
The labor arbiter dismissed the complaint of the respondents for
illegal dismissal. Appeal, however, was granted to respondents, making
the petitioners liable for illegal dismissal. Thus, requiring the petitioners
to pay back wages plus actual reinstatement of the dismissed

W/N the petitioners are liable for illegal dismissal.

Yes. It must be stressed that abandonment of work does not per
se sever the employer-employee relationship. It is merely a form of
neglect of duty, which is in turn a just cause for termination of
employment. The operative act that will ultimately put an end to this
relationship is the dismissal of the employee after complying with the
procedure prescribed by law. If the employer does not follow this
procedure, there is illegal dismissal.
The findings negate the claim interposed by the petitioners that private
respondents abandoned their jobs. 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 the
employer to show an unequivocal intent on the part of the employee to
discontinue employment. The 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.



HilariaTercero was hired as a teacher in Sta Catalina College in
1955. She was granted a 1 year leave of absence without pay in 1970
for her to take care of her ill mother. She, however, failed to report back
to work after the expiration of her leave. She instead was employed as
a teacher at the San Pedro Parochial School during school year 1980-
1981 and at the Liceo de San Pedro, Bian,Laguna during school year

In 1982 she reapplied and was accepted to teach at Sta
Catalina College and on 1997 was awarded a Plaque of Appreciation
for 30 years of service. Upon her reaching the compulsory retirement
age of 65, the school computed her benefits on the basis of the 15
years of service from 1982 to 1997. The school claims that Tercero
abandoned her employment when she did not report back to work at
the expiration of her 1 year leave of absence in 1971. Tercero,
however, insisted the computation be based on her 30 years of service.
For failing to reach an agreement, Tercero filed a complaint against the
school. The Labor Arbiter ruled in favor of the school but was reversed
by the NLRC.

Petitioner brought the case to the Court of Appeals which
affirmed the ruling of the NLRC. The CA held that petitioners failed to
prove that Hilaria had abandoned her position in 1970, as petitioner
school even gave her a Plaque of Appreciation for thirty years of
service "precisely because of her thirty year continuous service," and
that petitioner school never sent notice to her dismissing her, hence,
the employer-employee relationship was not severed and, therefore,
her services for petitioner school during the period from 1955-1970
should be credited in the computation of her retirement benefits.

ISSUE: WON Tercero abandoned her work.

YES.For a valid finding of abandonment, two factors must be
present: (1) the failure to report for work, or absence without valid or
justifiable reason; and (2) a clear intention to sever employer-employee
relationship, with the second element as the more determinative factor,
being manifested by some overt acts.

It is not disputed that the approved one year leave of absence
without pay of Hilaria expired in 1971, without her, it bears repeating,
requesting for extension thereof or notifying petitioner school if and
when she would resume teaching. Nor is it disputed that she was
rehired only in 1982 after filing anew an application, without her
proffering any explanation for her more than a decade of
absence.Under the circumstances, abandonment of work at petitioner
school in 1971 is indubitably manifest. Abandonment of work being a
just cause for terminating the services of Hilaria, petitioner school was
under no obligation to serve a written notice to her.

As Hilaria was considered a new employee when she rejoined
petitioner school upon re-applying in 1982, her retirement benefits
should thus be computed only on the basis of her years of service from
1982 to 1997.



1. 1970. Peter Majila was a barber in Dinas Barbershop
2. Dina Tan, the owner of Dinas Barbershop sold the Barbershop
to Paz Martin JO and Cesar JO
3. Paz JO and Cesar JO, being the new owner of Dinas
Barbershop, absorbed all the employees of Dinas Barbershop.
This includes Peter Mejila.
4. Winfield Barbershop is the new name of Dinas Barbershop.
Winfield is now owned by Paz Jo and Cesar JO
5. Peter Majila was paid on a commission basis. 2/3 to the Barber,
1/3 to the owner.
6. 1977. Peter was designated as caretaker of the shop because
he became unfit. As caretaker, he was paid a fixed monthly
7. Peter Mejila was also asked to do other tasks i.e. to report to the
owner the malfunctioning aircondition, to call laundry woman to
wash dirty linen, to recommend applicants for interview and
hiring, attend to other needs of the shop.
8. 1986. Winfield Barbershop closed. Reason: Building was
9. Later, a new barbershop opened. It is named as Cesars Palace
10. 1992. Peter Mejila had an altercation with his co-barber named
Jorge Tinoy.
11. Peter Mejila filed before the NLRC for mediation.
12. The Labor Arbiterfound out that the dispute was not between
Paz Jo and Peter Mejila but between Peter and his co-
employee.Further, Peter Mejila demanded a separation pay.
13. 1993. Peter Mejila turned over the duplicate keys to the cashier
and took away his belongings.
14. Peter Mejilabagan working at a newly opened barbershop
named Goldilocks Barbershop.
15. Peter Mejila filed before the NLRC an illegal dismissal case
against Paz Jo and Cesar Jo.
16. The complaint prayed for payment of separation pay and other
monetary benefits, attorneys fees and other damages.

17. Labor Arbiters Decision. (a) There is an employer-employee
relationship. (b) Peter Mejila left the job voluntarily because of
his misunderstanding with his co-employee.
18. NLRCs Decision. (a) There is an employer-employee
relationship. (b) Peter Mejila was illegally dismissed. NLRC
ordered the payment of the following:
1. Backwages
2. 13
Month Pay Peter was not only paid on a commission
basis but he also workedas caretaker or paid on a fixed
monthly honorarium
3. Separation Pay those paid on a commission basis are also
entitled to separation pay
4. Attorneys fees.
19. [CAs Decision. WALA probably because this case was decided
on 1994, when the 1997 Revised Rules of Court was not yet in
effect. Probably.


1. Whether there is an employer-employee relationship
2. Whether Peter Mejila abandoned his employment.

1. Yes, there is an employer-employee relationship. The
fourfold test was satisfied
a. Selection and engagement of workers
b. Power of Dismissal
c. Payment of Wages
d. Power of Control.
2. Yes, Peter Mejila has abandoned his work. Evidence:
a. He bragged his intention to quit his work
b. He surrendered shop keys and took away all his things
from the shop.
c. He did not anymore report for work without giving any
valid reason.
d. He immediately sought regular employment in another
barbershop despite assurance that he could remain in
Pazs employ.
e. He filed for illegal dismissal without praying for


A Prime Security Services Inc. vs National Labor Relation
G.R. No. 93476 March 19, 1993

Certain Florentino Lising, the herein private respondent, was an
employee of the herein petitioner security agency (APPSI).
Regional Relay Facilities, a U.S. Mission Facility was one of its client
and located at Angles City where the private respondent was assigned
as shift supervisor.
During its service, sometime on Sept. 1988 Assistant Region Security
of the U.S Embassy wrote a letter in favor of the agency requesting for
the relief from service of the private respondent on the ground that he
was caught sleeping while on duty for at least (4)four times.
After conducting an investigation, the agency terminated the service
and assignment of the respondent on that client. After learning the
same, the respondent no longer reported for work but instead he was
declared on AWOL.
The employer wrote him that if he will not go back for work, he will be
Instead of complying with such order, the respondent filed an action for
illegal dismissal and prayed for a separation pay and full back wages.
Because of his continued absence, he was dismissed.s

Issues: 1. Is the respondent Illegally dismissed ?
2. Is he entitled for separation pay?

1. The respondent was not illegally dismissed. His dismissal is for valid
cause. Based on the facts, what is terminated is his assignment only in
the U.S Facility and not his employment with the APPSI and it is without
prejudice for reassignment to another or other client.
It is his own act, his continued absence without official leave, that
causes his termination.
Under such circumstances, the employer is justified in terminating his
employment due to his own abandonment.
2, He is not entitled for separation pay. Under the labor code, employee
is entitled only for separation pay if his dismissal or termination is due
to retrenchment, closure of the business or disease.



Wenphil Corporation vs NLRC

Roberto Mallare was hired by petitioner on January 18, 1984 as
a crew member at its Cubao Branch. He thereafter became the
assistant head of the Backroom department of the same branch. At
about 2:30 P.M. on May 20, 1985 private respondent had an altercation
with a co-employee, Job Barrameda, as a result of which he and
Barrameda were suspended on the following morning and in the
afternoon of the same day a memorandum was issued by the
Operations Manager advising private respondent of his dismissal from
the service in accordance with their Personnel Manual. The notice of
dismissal was served on private respondent on May 25, 1985. Roberto
Mallare filed a complaint against petitioner for unfair labor practice,
illegal suspension and illegal dismissal.
A decision was rendered by the Labor Arbiter on December 3,
1986 dismissing the complaint for lack of merit.
National Labor Relations Commission (NLRC) wherein in due
course a decision was rendered on October 16, 1987 setting aside the
appealed decision and ordering the reinstatement of private respondent
to his former position without loss of seniority and other related benefits
and one (1) year backwages without qualification and deduction.

Whether or not, Mallare was illegally dismissed and his right to due
process was infringed when he was suspended and immediately
terminated without investigation as to the event?

It is a matter of fact that when the private respondent filed a
complaint against petitioner he was afforded the right to an
investigation by the labor arbiter. He presented his position paper as
did the petitioner. If no hearing was had, it was the fault of private
respondent as his counsel failed to appear at the scheduled hearings.
The labor arbiter concluded that the dismissal of private respondent
was for just cause. He was found guilty of grave misconduct and
insubordination. Under the circumstances the dismissal of the private
respondent for just cause should be maintained. He has no right to
return to his former employer.
However, the petitioner must nevertheless be held to account
for failure to extend to private respondent his right to an investigation
before causing his dismissal. The rule is explicit as above discussed.
The dismissal of an employee must be for just or authorized cause and
after due process.
Petitioner committed an infraction of the second
requirement. Thus, it must be imposed a sanction for its failure to give a
formal notice and conduct an investigation as required by law before
dismissing petitioner from employment.


[G.R. No. 151378. March 28, 2005]

Private respondents were hired by JAKA but their services were
eventually terminated on August 29, 1997 due to dire financial straits,
It is not disputed by the parties that the termination was effected without
JAKA complying with the requirement under Article 283 of the Labor
Code regarding the service of a written notice upon the employees and
the Department of Labor and Employment at least one (1) month before
the intended date of termination.
Respondents filed complaints at Regional Arbitration Branch NLRC for
illegal dismissal, underpayment of wages and non-payment of service
incentive leave and 13
month pay against JAKA and its HRD
Manager, Rosana Castelo.
The Labor Arbiter rendered a decision declaring the termination
illegal and ordering JAKA and its HRD Manager to reinstate
respondents with full backwages, and separation pay if reinstatement is
not possible.
There from, JAKA appealed to the NLRC,
August 30, 1999 decision: Affirmed in toto that of the Labor
Arbiters decision.
JAKA filed a motion for reconsideration:.
NLRCs decision on January 28, 2000: It reversed and set aside
the awards of backwages and service incentive leave pay. Each of the
complainants-appellees shall be entitled to a separation pay equivalent
to one month and the sum of P2,000.00 as indemnification for its failure
to observe due process in effecting the retrenchment.
JAKA filed again motion for reconsideration:
MR denied by the NLRC in its resolution of April 28, 2000.
Respondents filed a petition for certiorari to the Court of Appeals.
NLRCs decision on January 28, 2000 is reversed and set aside.
CA ordered JAKA to pay petitioners separation pay equivalent to one
(1) month salary, the proportionate 13
month pay and full backwages
from the time their employment was terminated on August 29, 1997 up
to the time the Decision herein becomes final.
JAKA moved for motion for reconsideration.
Motion was denied in its resolution of January 8, 2002.
JAKA assailed and sought to be set aside in this appeal by way of a
petition for review on certiorari under rule 45 of the Rules of Court CAs
decision dated 16 November 2001 and the resolution dated 8 January

What are the legal implications of a situation where an employee is
dismissed for cause but such dismissal was effected without the
employers compliance with the notice requirement under the Labor

Court ruled that there was ground for respondents dismissal, i.e.,
retrenchment, which is one of the authorized causes enumerated under
Article 283 of the Labor Code but, it is established that JAKA failed to
comply with the notice requirement under the same Article. Considering
the factual circumstances, the court deemed it proper to fix the
indemnity at P50, 000.00, as nominal damages for non-compliance with
statutory due process.
The Court of Appeals have been in error when it ordered JAKA to pay
respondents separation pay equivalent to one (1) month salary for
every year of service. In all cases of business closure or cessation of
operation or undertaking of the employer, the affected employee is
entitled to separation pay. This is consistent with the state policy of
treating labor as a primary social economic force, affording full
protection to its rights as well as its welfare. The exception is when the
closure of business or cessation of operations is due to serious
business losses or financial reverses; duly proved, in which case, the
right of affected employees to separation pay is lost for obvious

INC., respondents.


Petitioner Ma. Liza de Guzman (hereafter DE GUZMAN) was employed
by private respondent Rex Bookstore, Inc. (hereafter REX) on 17 April
1989 as cashier. On 18 September 1995 DE GUZMAN was dismissed
for alleged dereliction of duty in violation of REXs rules and
regulations. At the time of her dismissal, she was receiving a daily
wage of P164.25.
De GUZMANs dismissal stemmed from an incident on 5 August 1995
when she made a double payment to a book agent. Instead of paying
the agent the amount of two thousand seven hundred sixty pesos
(P2,760.00) for a single transaction, she paid the amount of five
thousand five hundred twenty pesos (P5,520.00). Thus, in its
memorandum of 12 August 1995, REX ordered DE GUZMAN to explain
within 48 hours why she should not be penalized for dereliction of duty
pursuant to Section 1A, Article III of REXs rules and regulations and
suspended her for thirty (30) days beginning 14 August 1995 pending
the investigation of the case against her.

In compliance with the aforesaid memorandum, DE GUZMAN
submitted to REX her explanation dated 14 August 1995.
She alleged
therein that since she was hired in 1989 it has been the companys
procedure in paying its freelance agents that the sales clerk will make
two copies of the unofficial receipt of payments, one given to REX and
the other to the agent. However, on 5 August 1995 the sales clerk,
Emmie Idio, issued to a sales agent two unofficial receipts for the same
transaction. Both receipts bore the identical amount of two thousand
seven hundred sixty pesos (P2,760.00). The agent then presented
both receipts to DE GUZMAN. Noting the two receipts, DE GUZMAN
asked the agent whether he made two deliveries on that day. When
the agent answered in the affirmative, DE GUZMAN paid the agent five
thousand five hundred twenty pesos (P5,520.00) corresponding to the
total amount of the receipts. She claimed that she failed and did not
have the opportunity to verify from Emmie Idio about the issuance of
the two receipts because on that day there were many customers.
DE GUZMAN contended that she cannot be held responsible for the
overpayment as she merely followed the usual procedure in the
company. It should be the sales clerk, Emmie Idion, who should be
held responsible for the issuance to the agent of two receipts.
Not satisfied with her explanation, REX, through Roque C. Solomon of
its Personnel Department, served on DE GUZMAN on 18 September
1995 a confidential memorandum informing her of the termination of
her services. The memorandum reads:
The decision on your case has been released under RBS-PRES 95-
001 dated September 14, 1995 the dispositive portion of which reads
as follows:
Management is left with no alternative but to affirm the
recommendation of the Fact Finding Committee not only to dismiss her
(referring to Miss Liza de Guzman) from the Company but to seek
recovery of the amount of P2,760.00 if not intentionally
Earlier, on 5 August 1995, a day after she was placed under preventive
suspension, DE GUZMAN filed a complaint for illegal suspension with
the National Capital Region-Arbitration Branch of the NLRC.
Immediately after her dismissal from the service, DE GUZMAN
amended her complaint to include illegal dismissal and claims for
thirteenth-month pay and attorneys fees.
The complaint was further
amended on 18 September 1995 and 10 October 1995 to include
claims for payment of actual, moral and exemplary damages.

In its Answer to the complaint, REX alleged that the purported defect in
the disbursement procedure as claimed by DE GUZMAN cannot be
used by her as an excuse for her negligence and that the payment
made to the agent without proper authorization from the supervisor
violated REXs standard operating policy that no disbursement of fund
may be made by a cashier without the approval of his/her immediate
On 17 December 1996, Labor Arbiter Salimathar B. Nambi rendered a
in favor of DE GUZMAN, the dispositive portion of which
reads: to reinstate complainant without loss of seniority rights and other
privileges and to pay complainant her full back wages inclusive of
allowances, computed from the time of her termination (September 14,
1995) up to the time of her actual reinstatement.
REX appealed the decision to the NLRC.
On 20 May 1997, the NLRC rendered a decision
affirming with
modification the decision of the Labor Arbiter by ordering the payment
of separation pay in lieu of reinstatement and deleting the award of
back wages and attorneys fee. The portion of the decision reads:
PREMISES CONSIDERED, the Decision dated December 17, 1996 is
hereby MODIFIED by ordering respondent to pay complainant the
amount of thirty four thousand one hundred sixty four pesos
(P34,164,00) as separation pay.
In deleting the award of back wages, the NLRC rationalized as follows:
We disagree with the Labor Arbiters finding that respondent failed to
substantiate complainants negligence. As correctly argued by
respondent, complainant herself admitted that she failed to inquire the
veracity of the two unofficial receipts of respondents position paper.
That, there were many customers on that day is not a valid excuse for
her not to verify said receipts from the sales clerk who issued the same
or from her immediate supervisor.
However, while we find that complainant was negligent it cannot be
considered gross as to warrant her termination from the service. As the
facts of the case show, the error committed was not the fault of the
complainant alone. The sales clerk who issued two (2) unofficial
receipts to the agent, contrary to the usual procedure of the company,
is also partly to be blamed in the incident. Further, the agent also made
misrepresentation to the complainant.
Taking into consideration the factual circumstances of the case, the
period within which complainant was out of work shall be considered as
her penalty. Stated differently, she is not entitled to backwages.
In a Partial Motion for Reconsideration, DE GUZMAN asked for a
modification of the decision to include payment of back wages. The
NLRC denied the motion in its resolution of 10 July 1997.

Issue: DE GUZMAN then filed the instant special civil action.
1.)Whether or not the NLRC committed grave abuse of discretion
amounting to lack or excess of jurisdiction when it modified the Labor
Arbiters decision by deleting the grant of back wages as penalty for her
negligent act despite the affirmance of the Labor Arbiters finding that
her dismissal was illegal.
2.)Whether the deletion of backwages was too harsh and grossly
disproportionate to the infraction she committed.

Held: We find merit in this petition.
1.)The general rule is that where there is a finding of illegal dismissal,
an employee is entitled to reinstatement and to receive back wages
from the date of his dismissal up to the time of his reinstatement without
loss of seniority rights and, secondly, the payment of back wages
corresponding to the period from his illegal dismissal up to actual
reinstatement These twin remedies of reinstatement and payment of
back wages make whole the dismissed employee. These two remedies
give meaning and substance to the constitutional right of labor to
security of tenure.

However, the two remedies are distinct and separate. Though the
grant of reinstatement commonly carries with it an award of back
wages, the inappropriateness or non-availability of one does not carry
with it the inappropriateness or non-availability of the other. The award
of one is not a condition precedent to an award of another. Back
wages may be ordered without ordering reinstatement; conversely,
reinstatement may be ordered without payment of back wages.

Thus, in a number of cases,
the Court, despite its order of
reinstatement or award of separation pay in lieu of reinstatement
deemed it appropriate not to award back wages as penalty for the
misconduct or infractions committed by the employee.
In the case at bar, we hold that the factual circumstances obtaining in
the case at bar do not warrant exception to the general principle that an
employee is entitled to reinstatement and to receive back wages where
there is a finding of illegal dismissal.
There is here no deliberate intent on the part of DE GUZMAN to
prejudice the company. It can be safely said that at most, DE
GUZMAN committed merely an error of judgment in paying the sales
agent without verifying the authenticity of the receipts. Contrary to the
claim of REX, there was no standard operating policy that no
disbursement of fund may be made by a cashier without the approval of
his/her immediate supervisor. Rexs own witness, Emmie Idio, the
clerk who issued the receipts, stated in her affidavit that it has always
been the procedure at REX Bookstore, Recto Branch, that when an
outside sales agent does not have a receipt of his own, the Bookstore,
through its sales clerk prepares two (2) identical copies of an unofficial
receipt evidencing the payment of the books; one copy to be retained
by the Bookstore and the other to be issued to the agent upon payment
by the cashier.
Therefore, it is clear that in the payment of outside
sales agent prior approval of immediate superior is not required.
More importantly, this was the first time that DE GUZMAN made an
overpayment, as correctly observed by respondent NLRC, she was not
solely responsible for the said incident. The fact of overpayment was
primarily attributable to the sales clerk who issued two unofficial
receipts to the sales agent in violation of standard company policy, as
well as the misrepresentation committed by the book agent that the two
receipts covered two separate transactions.
DE GUZMANs good faith is further buttressed by the fact that the two
unofficial receipts which served as basis for payment were retained in
the companys file together with the receipts of payment and were both
marked as paid.
In fact, REX can demand from the book agent, who
is a regular client, the return of the overpaid amount.
The previous offense that DE GUZMAN had committed on 3 July 1993
for willful refusal to perform ones assigned work or to comply with
instruction of supervisor, could no longer be utilized to aggravate the
present offense.
Her previous offense was an entirely separate and
distinct violation of company rules. The correct rule is that previous
infractions may be used as justification for an employees dismissal
from work in connection with a subsequent similar offense.

2.)In determining the penalty to be imposed on an erring employee, due
consideration must be given to the employees length of service and the
number of violations he committed during his employ.
In a similar
case, the Court ruled that dismissal is too harsh a penalty for the
inefficiency of an employee where the offense was the first to be
committed by an employee and she did not do it with malice, aside from
the fact that she was not solely responsible for the incidents. The
suspension of the employee would have sufficed.

On the basis of the foregoing, the conclusion is inevitable that the total
withholding of full back wages is too harsh and severely
disproportionate to the offense committed by DE GUZMAN. In all
cases where punishment of any sort is imposed, the penalty shall be
commensurate with the nature and gravity of the offense charged,
taking into consideration the varying circumstances surrounding each
particular case. The offender shall, however, be given the benefit of all
doubts that may exist as to his responsibility for the offense
charged. This dictum is in consonance with the policy of the State, as
embodied in the Constitution, to resolve doubts in favor of labor.

As to the back wages, settled is the rule that the amount thereof to be
awarded to an illegally dismissed employee must be computed from the
time the compensation was withheld up to the time of actual
reinstatement, without deduction of earnings derived elsewhere
pending the resolution of the case.
But since in this case, separation
pay was awarded in lieu of reinstatement, the back wages must be
computed from the time of DE GUZMANs illegal dismissal until the
finality of this decision.


GALANG, petitioners, vs. JOAN FLORENDO-FLORES, respondent.

Petitioner GLOBE TELECOM, INC. (GLOBE) is a corporation
duly organized and existing under the laws of the
Philippines. Petitioners Delfin Lazaro Jr. was its President and
Roberto Galang its former Director-Regional Sales. Respondent Joan
Florendo-Flores was the Senior Account Manager for Northern Luzon.
On 1 July 1998 Joan Florendo-Flores filed with the Regional
Arbitration Branch of the National Labor Relations Commission (NLRC)
an amended complaint for constructive dismissal against GLOBE,
Lazaro, Galang, and Cacholo M. Santos, her immediate superior,
Luzon Head-Regional Sales. In her affidavit submitted as evidence
during the arbitration proceedings, Florendo-Flores bared that Cacholo
M. Santos never accomplished and submitted her performance
evaluation report thereby depriving her of salary increases, bonuses
and other incentives which other employees of the same rank had been
receiving; reduced her to a house-to-house selling agent (person-to-
person sales agent or direct sales agent) of company products
("handyphone") despite her rank as supervisor of company dealers and
agents; never supported her in the sales programs and
recommendations she presented; and, withheld all her other benefits,
i.e., gasoline allowance, per diems, representation allowance, and car
maintenance, to her extreme pain and humiliation.

GLOBE and its co-petitioners claimed that after receiving her
salary in the second week of May 1998 Florendo-Flores went AWOL
(Absent Without Leave) without signifying through letter or any other
means that she was resigning from her position; that notwithstanding
her absence and the filing of her case, respondent Florendo-
Flores' employment was not terminated as shown by the fact that
salary was still provided her until July 1998 to be released upon her
presentation of the attendance-record sheet indicating that she already
returned and reported for work; that she continued to have the use a of
company car and company "handyphone" unit; that she was replaced
only when her absence became indefinite and intolerable as the
marketing operations in Northern Luzon began to suffer; that during the
pre-trial conference it was learned that Florendo-Flores' complaint
rested on her alleged personal and private disagreement with her
immediate superior Cacholo M. Santos; that there was no official act
from GLOBE or from other officers of the company, including
respondents Lazaro and Galang, which called for Florendo-Flores'
termination, diminution in rank, seniority and benefits, or would imply,
even remotely, any of the same; and, that Florendo-Flores filed the
complaint without going through the grievance process of GLOBE's
Human Resources Department and without informing its officers of her
problems with Cacholo M. Santos.
Labor Arbiter Monroe C. Tabingan declared Florendo-Flores to
have been illegally dismissed and ordered petitioners to reinstate her
without loss of seniority rights and full benefits; and to pay full back
wages, inclusive of basic pay, allowances and bonuses as prayed for in
the complaint amounting to P307,625.00, exemplary damages in the
sum of P200,000.00, and ten percent (10%) of the total monetary
award as attorney's fees. However, the Labor Arbiter set aside the
claim of abandonment as the company failed to send the requisite
notice to Florendo-Flores,
hence, there was no adherence to
procedural due process. Although he recognized that the problem
brewed and eventually boiled over due to the acts of Cacholo M.
Santos, GLOBE's former Head of Regional Sales, Luzon Area, the
Labor Arbiter found the company negligent in monitoring all its key
personnel, and thus assessed against it exemplary damages at the
same time deleting actual and moral damages.

Petitioners appealed the decision to the NLRC which modified
the judgment of the Labor Arbiter. The NLRC ruled that petitioners did
not dismiss Florendo-Flores but that the latter actually abandoned her
employment because of a disagreement with her immediate superior
which she failed to bring to the attention of GLOBE and its officers,
particularly petitioners Lazaro and Galang.
However, the NLRC
declared that if only as an act of gracefor the latter's past services with
the company, GLOBE, Lazaro and Galang should be held accountable
for the back wages of Florendo-Flores amounting to P307,625.00
minus the amount of P63,000.00 for the value of the company car in
Florendo-Flores' possession, or the net amount of P244,625.00.

Both parties elevated the NLRC decision to the Court of Appeals, each
side through a petition for certiorari. In its Resolution of 2 September
In its Decision of 25 May 2001 the Court of Appeals found that
Florendo-Flores was constructively dismissed and that payment of back
wages and damages was in order. On 21 June 2001 GLOBE, Lazaro
and Galang filed a motion for reconsideration but the motion was
denied in the appellate court's Resolution of 19 September 2001.
Petitioners( Globe) filed a special civil action of certiorari.

1. w/n Florendo-flores(respondent) was constructively dismissed by
Globe & w/n Globe is liable for the acts of its employee( Cacholo
2. w/n Respondent abandoned her work.
3. w/n the reward of backwages in the case at bar is a mere act of

1.) Yes, the respondent was constructively dismissed from service.
Constructive dismissal exists where there is cessation of work because
"continued employment is rendered impossible, unreasonable or
unlikely, as an offer involving a demotion in rank and a diminution in
All these are discernible in respondent's situation. She was
singularly edged out of employment by the unbearable or undesirable
treatment she received from her immediate superior Cacholo M. Santos
who discriminated against her without reason - not preparing and
submitting her performance evaluation report that would have been the
basis for her increased salary; not forwarding her project proposals to
management that would have been the source of commendation;
diminishing her supervisor stature by assigning her to house-to-house
sales or direct sales; and withholding from her the enjoyment of
bonuses, allowances and other similar benefits that were necessary for
her efficient sales performance. Although respondent continued to
have the rank of a supervisor, her functions were reduced to a mere
house-to-house sales agent or direct sales agent. This was tantamount
to a demotion. She might not have suffered any diminution in her basic
salary but petitioners did not dispute her allegation that she was
deprived of all benefits due to another of her rank and position, benefits
which she apparently used to receive.
Far from pointing to Santos alone as the source of her woes,
respondent attributes her degraded state to petitioners as
well. Florendo-Flores cited petitioners' apathy or indifference to her
plight as she was twice left out in a salary increase in August 1997 and
May 1998, without petitioners giving her any reason.
It eludes belief
that petitioners were entirely in the dark as the salary increases were
granted to all employees across-the-board but respondent was the
only one left receiving a P19,100.00 per month basic salary while the
rest received a basic salary of almost P35,000.00 per month.
It is
highly improbable that the exclusion of respondent had escaped
petitioners' notice. The absence of an evaluation report from Santos
should have been noted by petitioners and looked into for proper action
to have been made. If a salary increase was unwarranted, then it
should have been sufficiently explained by petitioners to respondent.
Petitioners argue that respondent Florendo-Flores could have
brought to their attention the deplorable treatment she received from
Santos by resorting to the company's grievance machinery so that the
problems in her relationship with Santos could then have been easily
ironed out, but she did not. It remains uncontroverted that respondent
had inquired from petitioners the reason why her other benefits had
been withheld and sought clarification for her undeserved treatment but
petitioner company and Santos remained mum.

Thus, contrary to the observation of the NLRC, the dispute was
not a mere private spat between respondent Florendo-Flores and her
immediate superior Santos. Granting that this was the case, it had
exceeded the periphery of simple personal affairs that overflowed into
the realm of respondent's employment.
Respondent narrates that sometime in June 1997 Santos wrote
her a baseless accusatory letter, and he together with GLOBE Sales
Director Roberto Galang, one of petitioners herein, verbally told her
that she should resign from her job, but she refused.
Thereafter, in
July 1997 and the months subsequent thereto all of respondent's other
benefits were withheld without any reason nor explanation from the
Even as petitioners endeavored to lay the blame on
Santos alone, he would not have been able to single-handedly
mastermind the entire affair as to influence Sales Director Galang and
manipulate the payroll. It only stands to reason that Santos was acting
pursuant to a management directive, or if not, then petitioners had
condoned it, or at the very least, were negligent in supervising all of
their employees. As aptly observed by the Labor Arbiter -
x x x x it would appear however that the respondent company
was negligent in monitoring all its key personnel, which includes the
inter-personal relations of each and every key segment of the corporate
machinery. For such, it must be assessed with just and reasonable
exemplary damages.

2.)No, The unauthorized absence of respondent should not lead to the
drastic conclusion that she had chosen to abandon her work. To
constitute abandonment, there must be: (a) failure to report for work or
absence without valid or justifiable reason; and, (b) a clear intention, as
manifested by some overt act, to sever the employer-employee
requisites that are negated by the immediate filing by
respondent Florendo-Flores of a complaint for constructive dismissal
against petitioners. A charge of abandonment is totally inconsistent
with the immediate filing of a complaint for illegal dismissal; more so,
when it includes a prayer for reinstatement.

The reduction of respondent's functions which were originally
supervisory in nature to a mere house-to-house sales agent or direct
sales agent constitutes a demotion in rank. For this act of illegal
dismissal, she deserves no less than full back wages .She shall
continue to enjoy her benefits, privileges and incentives including the
use of the company car and "handyphone."
In constructive dismissal, the employer has the burden of
proving that the transfer and demotion of an employee are for just and
valid grounds such as genuine business necessity.

3.)No, It should be noted that the award of back wages in the instant
case is justified upon the finding of illegal dismissal, and not under the
principle of "act of grace" for past services rendered. There are
occasions when the Court exercises liberality in granting financial
awards to employees, but even then they contemplate only the award
of separation pay and/or financial assistance, and only as a measure
of social justice when the circumstances of the case so warrant, such
as instances of valid dismissal for causes other than serious
misconduct or those reflecting on the employees' moral character. An
award of actual and moral damages is not proper as the dismissal is
not shown to be attended by bad faith, or was oppressive to labor, or
done in a manner contrary to morals, good customs or public
Exemplary damages are likewise not proper as these are
imposed only if moral, temperate, liquidated or compensatory damages
are awarded.

WHEREFORE, the judgment appealed from is MODIFIED.
Petitioners Globe Telecom, Inc., Delfin Lazaro, Jr., and Roberto Galang
are ordered to pay respondent Joan Florendo-Flores full back wages
from the time she was constructively dismissed on 15 May 1998 until
the date of her effective reinstatement, without qualification or
deduction. Accordingly, petitioners are ordered to cause the immediate
reinstatement of respondent to her former position, without loss of
seniority rights and other benefits.



Amalia P. Kawada started her employment with Uniwide
sometime in 1981 as a saleslady. Over the years, she worked herself
within corporate ladder until she attained the rank of Full Assistant
Store Manager in 1995.
As a Full Assistant Store Manager, her primary function was to
manage and oversee the operation of the Fashion and Personal Care,
GSR Toys, and Home Furnishing Departments of to ensure its
continuous profitability so as to see to it that the established company
policies and procedures were properly complied with and implemented
in her departments.

v Sometime in 1998, Uniwide received reports from the other
employees regarding some problems in the departments managed by
the private respondent.

v March 15, 1998, Uniwide, through Store Manager Apduhan, issued a
Memo addressed to Amalia summarizing various reported incidents
signifying unsatisfactory performance by Amalia..Uniwide asked her for
concrete plans on how she can effectively perform her job.

v She answered all the allegations contained in the March 15, 1998
Memorandum but Apduhan was not satisfied with her answers which
were all hypothetical and did not answer directly the allegations
attributed to her.

v On June 30, 1998, Apduhan sent another Memo seeking from the
private respondent an explanation regarding the incidents reported by
Uniwide employees and security personnel for alleged irregularities
committed by the private respondent
v In a letter

dated July 9, 1998, private respondent answered the
allegations made against her.

v On July 27, 1998, private respondent sought medical help from the
company physician, Dr. Zambrano. She was advised her to take five
days sick leave. But on July 30, 1998, Amalia obtained from Dr.
Zambrano a medical certificate of fitness to work but with a wrong
surname which she presented to Apduhan the following day,

v Thereafter, private respondent claimed that Apduhan shouted at her
and prevented her from resuming work because she was not the
person referred to in the medical certificate

v When she refused to give the certification, private respondent claims
that Apduhan once again shouted at her which caused her
hypertension to recur and eventually caused her to collapse.

v On August 1, 1998, Amalia reported the confrontation between her
and Apduhan to the Central Police District. Thereafter, her counsel sent
a letter dated August 1, 1998 to Apduhan stating that the latter's
alleged continued harassment and vexation against private respondent
created a hostile work environment which had become life threatening,
and that they had no alternative but to bring the matter to the proper

v On August 2, 1998, Apduhan issued a Memo, advising the latter of a
hearing scheduled on August 12, 1998 to be held at the Uniwide Office
in Quirino Highway, and warning her that failure to appear shall
constitute as waiver and the case shall be submitted for decision based
on available papers and evidence.
On August 3, 1998, private respondent filed a case for illegal dismissal
before the Labor Arbiter.

v Amalias counsel sent a letter dated August 8, 1998 to Apduhan
claiming that the August 2, 1998 Memorandum was a mere
afterthought, in an attempt to justify private respondent's dismissal; and
that on August 3, 1998, private respondent had already filed charges
against Uniwide and Apduhan.

v On August 8, 1998, Apduhan sent a letter addressed to private
respondent, advising private respondent to report for work, as she had
been absent since August 1, 1998; and warning her that upon her
failure to do so, she shall be considered to have abandoned her job.

v On September 1, 1998, Apduhan issued a Memo stating that since
private respondent was unable to attend the scheduled August 12,
1998 hearing, the case was evaluated on the basis of the evidence on
record That due to her violations, Uniwide has no other alternative but
to terminate her service with the Company, effective September 1,
1998, on the grounds of violations of Company Rules, Abandonment of
Work and loss of trust and confidence. On March 9, 1999 the
LA dismissed the complaint for lack of merit.

Private respondent appealed the LA's decision to the National
Labor Relations Commission (NLRC).

Decision dated December 27, 2000: the NLRC ruled in favor
Amalia reversing and set aside the Labor Arbiters decision.
Complainant is declared constructively dismissed by respondents.
Respondents Uniwide and Apduhan are jointly and severally ordered to
pay complainant the following : separation pay, backwages, moral
damages, exemplary damages and Attorney's fees. According to the
NLRC, Amalia was subjected to inhuman and anti-social treatment
oppressive to labor by receiving successive memoranda and that she
was not afforded due process by petitioners.

Feeling aggrieved, UNIWIDE and Apduhan appealed to Court of

Decision dated November 23, 2001: the CA affirmed in toto the
NLRCs decision.

Uniwide and Apduhan filed a Petition for Review seeking to annul the
dated November 23, 2001 and the Resolution dated July 23,
2002 of the Court of Appeals:

ISSUE: Whether or not Amalia Rawada was constructively dismissed
by UNIWIDE and Apduhan.

No, she was not constructively dismissed because the Court
finds the records bereft of evidence to substantiate the conclusions of
the NLRC and the CA that private respondent was constructively
dismissed from employment.
Case law defines constructive dismissal as a cessation of work
because continued employment is rendered impossible, unreasonable
or unlikely; when there is a demotion in rank or diminution in pay or
both; or when a clear discrimination, insensibility, or disdain by an
employer becomes unbearable to the employee.
The test of constructive dismissal is whether a reasonable
person in the employee's position would have felt compelled to give up
his position under the circumstances. It is an act amounting to dismissal
but made to appear as if it were not. In fact, the employee who is
constructively dismissed may be allowed to keep on coming to work.
Constructive dismissal is therefore a dismissal in disguise.

v In the present case, Amalia claimed that she had been subjected to
constant harassment, ridicule and inhumane treatment by Apduhan.
Supreme Court found the allegation of harassment was a specious
statement which contains nothing but empty imputation of a fact that
could hardly be given any evidentiary weight by this Court.

v The sending of several memoranda addressed to a managerial
concerning various violations of company rules and regulations,
committed, should not be construed as a form of harassment but
merely an exercise of managements prerogative to discipline its
employees. Precisely, petitioners gave private respondent successive
memoranda to give the latter an opportunity to controvert the charges
against her. Clearly, the memoranda are not forms of harassment, but
petitioners compliance with the requirements of due process.

v Private respondent's bare allegations of constructive dismissal, when
uncorroborated by the evidence on record, cannot be given credence

Therefore, the Decision dated November 23, 2001 and Resolution
dated July 23, 2002 of the CA together with the decision dated
December 27, 2000 of the NLRC were reversed and set aside. The
complaint of private respondent Amalia P. Kawada was dismissed,.


HYATT vs Catinoy

A petition for review under Rule 45 of the Rules of Court of the
of the Court of Appeals dated December 27, 1999 in the case
DUBLIN" that ruled against herein petitioner Hyatt Taxi Services, Inc.
(hereafter petitioner) and of the Resolution dated May 11, 2000 denying
the Motion for Reconsideration of petitioner.
Rustom Catinoy was hired on October 10, 1992 as a taxi driver
by the Respondent Hyatt Taxi Services, Inc. On August 21, 1995 at
about past 10:00 a.m., complainant went inside the union office and to
his surprise found his drawer to have been forcibly opened. Catinoy
asked Saturnino who opened his drawer. Saturnino replied that he was
the one who forcibly opened the drawer to retrieve some documents
particularly the list of union members. An argument ensued and a fist
fight to which resulted to Catinoy being brought to the hospital. After
due investigation by the company the two was indefinitely suspended.
Aggrieved he filed a complaint before the NLRC.
On September 19, 1997, the Labor Arbiter rendered a Decision
finding petitioner guilty of illegal preventive suspension, requiring it to
pay the wage equivalent of the suspension, and further finding
petitioner guilty of illegal constructive dismissal, ordering petitioner to
reinstate respondent and to pay him backwages and attorney's fees.
The NLRC issued a Decision affirming the decision of the
Arbitration Branch
Upon Catinoys motion for reconsideration the NLRC modified
its earlier decision when it deleted the award of backwages on the
ground that there was "no concrete showing that complainant was
constructively dismissed".

Whether or not the Rustom M. Catinoy was dismissed without cause
and without due process of law?
Clearly, constructive dismissal had already set in when the
suspension went beyond the maximum period allowed by law. Section
4, Rule XIV, Book V of the Omnibus Rules provides that preventive
suspension cannot be more than the maximum period of 30 days.
Hence, we have ruled that after the 30-day period of suspension, the
employee must be reinstated to his former position because
suspension beyond this maximum period amounts to constructive
It bears stressing that in illegal dismissal cases, it is the
employer who has the burden of proof. Since petitioner claims that
respondent abandoned his work, petitioner has to establish the
concurrence of the following: (1) the employee's intention to abandon
employment and (2) overt acts from which such intention may be
inferredas when the employee shows no desire to resume
work.Petitioner failed to make out its case of abandonment. Even the
NLRC in its modified decision confirmed that there were no overt acts
unerringly pointing to the fact that respondent had no intention of
returning to work anymore. Also, the fact that respondent filed a
complaint against his employer within a reasonable period of time
belies abandonment.
The strict adherence by the NLRC to the definition of
constructive dismissal is erroneous. Apparently, the NLRC ruled out
constructive dismissal in this case mainly because according to it
"constructive dismissal consists in the act of quitting because continued
employment is rendered impossible, unreasonable or unlikely as in the
case of an offer involving demotion in rank and a diminution in
pay". Based on this definition, the NLRC concluded that since
respondent neither resigned nor abandoned his job and the fact that
respondent pursued his reinstatement negate constructive dismissal.
What makes this conclusion tenuous is the fact that constructive
dismissal does not always involve forthright dismissal or diminution in
rank, compensation, benefit and privileges.

There may be constructive
dismissal if an act of clear discrimination, insensibility, or disdain by an
employer becomes so unbearable on the part of the employee that it
could foreclose any choice by him except to forego his continued


Respondent Benigno Martinez was the manager of petitioner
Philippine Veterans Bank Dumaguete Branch from September 1, 2001
until January 8, 2003, the latter being the date when his supposed
resignation from petitioner bank became effective. Respondent claimed
that his resignation stemmed from a report published by the Philippine
Daily Inquirer regarding the anomalies hounding petitioner's high-
ranking officials. Accordingly, this controversy resulted in huge
withdrawals of major depositors. Concerned, respondent Martinez
approached Mr. Wilfredo S. Anion, petitioner's Area Head for Visayas
and Mindanao, to discuss how to resolve the matter. When Mr. Anion
just brushed off the issue, respondent requested the Mayor of Valencia
(a known big depositor of the Dumaguete Branch) to talk to Mr. Anion.
The latter misinterpreted the respondent's actions and angrily
confronted him the next dayand told him that he would be replaced in
his position as manager.
On October 14, 2002, Mr. Anion went to the Dumaguete
Branch and brought along with him respondent's replacement. Mr.
Anion then instructed the respondent togo to the petitioner's head
office in Makati to report to Mr. Jose D. Lloren, Jr., the Vice President
and Head of Branch Banking Division. Respondent Martinez flew to
Manila and reported to the Makati Office where he was told by Mr.
Lloren that he would undergo training. However, no such training took
place. Instead, he was made to do clerical jobs. Respondent lamented
that he had to travel at least 4 hours daily from his rented house in
Cavite to Makati, and as a consequence thereof his travel and living
expenses consumed at least half of his salary. On January 8, 2003,
respondent tendered his resignation because it was so expensive for
him to be staying away from his family.

Issue: WON respondent was constructively dismissed

In constructive dismissal cases, the employer has the burden of
proving that its conduct and action or the transfer of an employee are
for valid and legitimate grounds such as genuine business necessity.
Particularly, for a transfer not to be considered a constructive dismissal,
the employer must be able to show that such transfer is not
unreasonable, inconvenient, or prejudicial to the employee.

Failure of the employer to overcome this burden of proof taints
the employee's transfer as a constructive dismissal. In the present
case, the petitioner failed to discharge this burden. The NLRC, as
affirmed by the CA, correctly found that the combination of the harsh
actions of the petitioner rendered the employment condition of
respondent hostile and unbearable for the following reasons:

First, the petitioner failed to show any urgency or genuine
business necessity to transfer the respondent to the Makati Head
Office. In fact, the respondent showed the actual motivation and the
bad faith behind his transfer.

Second, the respondents transfer from Dumaguete to Makati
City is clearly unreasonable, inconvenient and oppressive, since the
respondent and his family are residents of Dumaguete City.

Third, the petitioner failed to present any valid reason why it had
to require the respondent to go to Makati Head Office to undergo
branch head training when it could have just easily required the latter to
undertake the same training in the VISMIN area.

Finally, there was nothing in the order of transfer as to what
position the respondent would occupy after his training; the respondent
was effectively placed in a floating status.

The test of constructive dismissal is whether a reasonable
person in the employees position would have felt compelled to give up
his position under the circumstances. Based on the factual
considerations in the present case, we hold that the hostile and
unreasonable working conditions of the petitioner justified the finding of
the NLRC and the CA that respondent was constructively dismissed.



Ricardo Samaniego was initially hired by Unilab as Professional
Service Representative of its marketing arm, Westmont. Later, Unilab
promoted him as a Senior Business Development Associate and
assigned him in Isabela as Acting District Manager of Westmont and
Chairman of Unilab Special Projects. He was then transferred to Metro
Manila pending the investigation of his subordinate and physicians of
Region II involved in a sales discount and Rx trade-off controversy. He
was placed under floating status and assigned to perform duties not
connected with his position. This transfer resulted in the diminution of
his salary.
Ricardo Samaniego then filed with the Office of the Labor
Arbiter for illegal dismissal and damages against Westmont and Unilab,
as well as Unilabs Officer
Westmont and Unilab filed a motion to dismiss Samaniegos
complaint on the ground of improper venue and lack of cause of action.
They argued that it should be filed with the NLRC in Manila, not with the
Office of the Labor Arbiter in Tuguegarao City, Cagayan, and that the
action should be against Westmont, Samaniegos employer.
The Labor Arbiter denied the motion to dismiss, Citing Section
1, Rule IV, of the NLRC Rules and Procedure allowing the Labor Arbiter
to order a change of venue in meritous cases, he then set the case for
preliminary conference during which the petitioners expressly reserved
their right to contest the order denying motion to dismiss.
Petitioners filed with the NLRC an Urgent Petition to Change or
Transfer Venue. They also filed to suspend proceedings in view of the
pendency of their petition.
The Labor Arbiter issued an order directing parties to submit
their respective papers and supporting documents within 20 days from
notice, after which the case shall be submitted for decision.
The NLRC acting on the petition to change venue, ordered the
Labor Arbiter to forward the records of the case. The Labor Arbiter
retained a complete duplicate original copies of the records and set the
case for hearing. They petitioners filed a motion for cancellation of the
hearings because their petition for change of venue has remained
unresolved. They did not submit their position papers and did not attend
hearing, thus the Labor Arbiter considered the case submitted for
Decision based on the records and the evidence submitted by
Samaniego and rendered a decision finding that Samaniego is illegally
and unjustly dismissed constructively.
Petitioners appeal to the NLRC. The NLRC dismissed the
petition for change of venue because when the cause of action arouse,
Samaniegos workplace in Isabela over which the Labor Arbiter in
Cagayan has the jurisdiction. However it declared the decision of the
NLRC null and void because it continued to conduct further
proceedings despite the pendency of the appeal-treated Urgent Petition
for Change and Westmont and Unilab are denied due process.
Both Parties applied for motion for reconsideration but both
were denied by the NLRC.
Hence this petition.


1. Whether or Not Court of Appeals erred in denying their motion to
dismiss by reason of improper venue.

2. Whether or Not Westmont and Unilab are denied of due process.

3. Whether the Caourt of Appeals erred on holding that Samaniego was
constructively dismissed by Westmont and Unilab.

The petition to change or transfer venue filed by herein
petitioners with the NLRC is not the proper remedy to assail the Labor
Arbiters order denying their motion to dismiss. Such order is merely
interlocutory, hence not appealable as provided in Section 3 of the
1997 NLRC Rules and Procedures.

An order denying a motion to dismiss is interlocutory, and so the proper
in such a case is to appeal after a decision has been rendered.
Assuming that the petition to change or transfer venue is the
proper remedy, still we find that the CA did not err in sustaining the
Labor Arbiters Order of denying the motion to dismiss because under
the 1997 NLRC rules and procedure under Section 1, All cases which
the Labor Arbiters have authority to hear and decide may be filed in the
Regional Arbitration Branch having jurisdiction over the workplace of
the complainant/petitioner. The question of venue essentially relates to
the trial and touches more upon the convenience of the parties, rather
than upon the substance and merits of the case. Our permissive rules
underlying the provisions on venue are intended to assure convenience
for the plaintiff and his witnesses and to promote the end of justice. This
axiom all the more finds applicability in cases involving labor and
management because of the principle, paramount in our jurisdiction,
that the State shall afford to full protection of labor.
Because Samaniegos regular place of assignment was in
Isabela when he was transferred to Metro Manila or when the cause of
action arose. Clearly, the Appellate Court was correct in Affirming the
Labor Arbiters finding that the proper venue is in the RAB No. II at
Tuguegarao City, Cagayan.
On the contention that Westmont and Unilab that they were
denied due process, well settled is the rule that the essence of due
process is simply an opportunity to be heard or as applied to
administrative proceeding, an opportunity to explain ones side or an
opportunity to seek a reconsideration of the action or ruling complained
of. The requirement of due process in labor cases before a Labor
Arbiter is satisfied when the parties are given the opportunity to submit
their position papers to which they are supposed to attach all the
supporting documents or documentary evidence that would prove their
respective claims, in the even the Labor Arbiter determines that no
formal hearing would be conducted of that such hearing was not
As shown by the records, the Labor Arbiter gave Westmont and
Unilab, not only once, but thrice, the opportunity to submit their position
papers and supporting affidavits and documents. But they were
obstinate. Clearly, they were not denied their right to due process.
To recapitulate, Samaniego claims that upon his reassignment
and/or transfer to Metro Manila, he was placed on floating status and
directed to perform functions not related to his position. For their
part, Westmont and Unilab explain that his transfer is based on a
sound business judgment, a management prerogative.
In constructive dismissal, the employer has the burden of
proving that the transfer of an employee is for just and valid grounds,
such as genuine business necessity. The employer must be able to
show that the transfer is not unreasonable, inconvenient, or prejudicial
to the employee. It must not involve a demotion in rank or a diminution
of salary and other benefits. If the employer cannot overcome this
burden of proof, the employees transfer shall be tantamount to
unlawful constructive dismissal.

Westmont and Unilab failed to discharge this
burden. Samaniego was unceremoniously transferred from
Isabela to Metro Manila. We hold that such transfer is
economically and emotionally burdensome on his part. He was
constrained to maintain two residences one for himself in Metro
Manila, and the other for his family inTuguegarao City,
Cagayan. Worse, immediately after his transfer to Metro Manila,
he was placed on floating status and was demoted in rank,
performing functions no longer supervisory in nature.
The assailed decision of the CA is affirmed.




Respondent was employed by petitioner as an Executive Pool
Secretary, but petitioner alleged that respondent turned out to be
incompetent. Petitioner then assigned her to perform menial or
insignificant jobs and allegedly transferred her to their branch office in
Makati City. However, respondent allegedly failed to report for work at
said branch office on the day she was supposed to do so.On the other
hand, respondent claimed that petitioner dismissed her on October 31,
1997 without any valid reason, neither was she given any notice and

In December of 1997, respondent filed a case for illegal
dismissal against petitioner. Petitioner countered that respondent was
not dismissed; rather, she was the one who severed her connection
with petitioner by her "voluntary and unequivocal acts." The Labor
Arbiter, NLRC and Court of Appeals all ruled in favor of respondent.

ISSUE: WON respondent was illegally dismissed by petitioner.

YES.In this case, the Labor Arbiter, the NLRC and the CA were
all consistent in their factual findings that respondent's employment was
indeed terminated without giving her notice and hearing. The NLRC's
finding that respondent had been petitioner's employee since 1990, had
also been affirmed by the CA. A close perusal of the records show that
there is no cogent reason for this Court to deviate from the settled rule
that factual findings of the NLRC, when affirmed by the Court of
Appeals, are accorded not only respect but finality.

The petitioners cannot justify their defense of abandonment as
they failed to prove that indeed private respondent had abandoned her
work. It did not even bother to send a letter to her last known address
requiring her to report for work and explain her alleged continued
absences. The ratiocination of public respondent [NLRC] on this score
merits our imprimatur, viz:

The law clearly spells out the manner with which an unjustified
refusal to return to work by an employee may be established. Thusly,
respondent should have given complainant a notice with warning
concerning her alleged absences (Section 2, Rule XIV, Book V,
Implementing Rules and Regulations of the Labor Code). The notice
requirement actually consists of two parts to be separately served on
the employee to wit: (1) notice to apprise the employee of his absences
with a warning concerning a possible severance of employment in the
event of an unjustified excuse therefor, and (2) subsequent notice of
the decision to dismiss in the event of an employee's refusal to pay
heed to such warning. Only after compliance had been effected with
those requirements can it be reasonably concluded that the employee
had actually abandoned his job. In respondent's case, it is noted that
more than two (2) months had already lapsed since complainant
allegedly started to absent herself when the latter instituted her action
for illegal dismissal. During the said period of time, no action was taken
by the respondents regarding complainant's alleged absences,
something which is quite peculiar had complainant's employment not
been severed at all. Accordingly, we do not find respondents defense of
abandonment to be impressed with merit in view of an utter lack of
evidence to support the same. Hence, complainant's charge of illegal
dismissal stands uncontroverted

Having firmly established that petitioner dismissed respondent
without just cause, and without notice and hearing, then it is only proper
to apply Article 279 of the Labor Code which provides that an illegally
dismissed employee "shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his 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." In addition to full backwages, the
Court has also repeatedly ruled that in cases where reinstatement is no
longer feasible due to strained relations, then separation pay may be
awarded instead of reinstatement.

HORILLENO, and BENITO A. DE LEON, petitioners,

Respondent is a security guard in the Calamba plant for 13
years for petitioner company. Two incidents happened that lead to his
dismissal. First was when he failed to inspect a van before leaving the
plant, which was his duty and a company policy. Second was when he
allowed a van to leave the plant without a tarpaulin cover, thus
endangering the quality of the goods of the petitioner. Petitioners
contend that Daniel is guilty of deliberate and wilful disobedience of
company rules and regulations, or serious misconduct, or wilful breach
of trust and confidence, thus, respondents employment was
terminated. Respondent filed a case for illegal dismissal against Coca-
Cola which the latter denied committing the same.

1) whether a valid cause existed to justify the dismissal of respondent;
2) whether he is entitled to reinstatement and back wages.

1) None. Neither of the two infractions committed by Daniel caused
substantive loss or damage. Their company policy does not warrant
dismissal for such infractions. Also worth stressing are the following
facts: Daniel has served the company for 13 years; he was previously
granted a scholarship given only to employees with high performance
ratings; his infractions were minor; and there has been no showing that
he acted in bad faith or with malice. Under the circumstances, there is
every justification for tilting the scales of justice in favor of the
2) Yes. Article 279 of the Labor Code, as amended, mandates that
illegally dismissed employees are entitled to both 1) reinstatement
without loss of seniority rights and other privileges; and 2) full back
wages, inclusive of allowances and other benefits or their monetary
equivalent, from the time their compensation was withheld from them
up to the time of their actual reinstatement. Both reliefs are rights
granted by substantive law to alleviate the economic hardships suffered
by an illegally dismissed employee. The grant of one does not preclude
the other.
Also, there is no showing that the relationship between the
parties are strained so as to not reinstate Daniel as an employee. From
these facts, we hold that the doctrine of strained relations finds no
application in the case at bench. As the NLRC observed, not only were
[respondents] infractions merely minor, he did not act in bad faith or
with malice when he committed the same; neither did Coca-Cola
sustain material damage or injury as a result thereof.


MARCH 3, 1992

Imelda Salazar was employed by Globe Mackay Cable and
Radio Corporation as general systems analyst, also employed by
petitioner as manager for technical operations support was
DelfinSaldivar with whom Imelda was allegedly very close. Sometime in
1994, prompted by reports that company equipment and spare parts
worth thousands of dollars under the custody of Saldivar were missing,
caused the investigation of the latters activities. The report prepared by
companys internal auditor, Mr Agustin Maramara, indicated that
Saldivar had entered into a partnership styled Concave Commercial
and Industrial Company with Richard Yambao. The report also
disclosed that Saldivar had taken petitioners missing air conditioning
unit for his own personal use without authorization and also connived
with Yambao to defraud petitioner. It likewise appeared in the course of
Maramaras investigation that Imelda Salazar violated company
regulations by involving herself in transactions conflicting with the
companys interests. Evidence showed that she signed as a witness to
the articles of partnership between Yambao and Saldivar. It also
appeared that she had full knowledge of the loss and whereabouts of
the air conditioner but failed to inform her employer.Consequently
petitioner company placed private respondent under suspensive
suspension for one month and giving her thirty days within which to
explain her side.But instead of submitting an explanation, private
respondent filed a complaint against illegal suspension which she
subsequently amended to include illegal dismissal, vacation and sick
leave benefits, 13
month pay and damages, after petitioner notified
her that she was considered dismissed.
Labor Arbiter ordered petitioner company to reinstate Salazar to her
former work or equivalent position and to pay her full backwages and
other benefits she would have received were it not for the illegal
dismissal.Petitioner was also ordered to pay Salazar moral
damages.On appeal, NLRC affirmed the decision of the Labor Arbiter
but deleted the award for moral damages.

Whether or not petitioner violated Salazars due process when
she was promptly suspended.
Whether or not Salazar was unjustly dismissed.

The Suprene Court ruled that it is not correct to conclude that
petitioner has violated Salazars right to due process when she was
promptly suspended.If at all, the fault lay with Salazar when she
ignored petitioners memorandum giving her ample opportunity to
present her side to the management, instead, she went directly to the
Labor Department and filed her complaint for illegal suspension without
giving her employer a chance to evaluate her side of the controversy.
The court ruled that Salazar was unjustly dismissed, there being no
evidence to show an authorized, much less a legal, cause for the
dismissal of Salazar, she had every right, not only be entitled to
reinstatement, but as well as to full backwages.The Labor Code
provides that in cases or regular employment, the employer shall not
terminate the services of an employee except for a just cause.An
employee who is unjustly dismissed from work hall be entitled to
reinstatement without loss of seniority rights and other privileges and to
his full backwages, inclusive of allowances, and to his other benefits or
monetary equivalent computed from the time his compensation was
withheld from him up to the time of his actual reinstatement.The court
also stress that the right of an employee not to be dismissed from his
job except for a just cause has assumed greater importance under the
1987 Constitution.Where a case of unlawful or unauthorized dismissal
has been proved by the aggrieved employee, or on the other hand, the
employer whose duty it is to prove the lawfulness or justness of his act
of dismissal has failed to do so, then the remedies provided in the
Labor Code, should find application.Thus she is entitled to
reinstatement and payment of backwages.


Baguio Country Club Corporation vs NLRC

Petitioner Baguio Country Club Corporation (corporation) is a
recreational establishment certified by the ministry of labor and
employment as an entertainment-service establishment. Private
respondent Jimmy Calamba was employed by corporation on a day to
day basis in various capacities as laborer and dishwasher for a period
of ten months. Calamba was hired again as a gardener and rehired as
such when he was dismissed by the petitioner corporation. Calamba
filed a complaint against petitioner corporation with the ministry of labor
(DOLE) for unfair labor practice, illegal dismissal and non-payment of
month pay. The executive labor arbiter ruled in favor of Calamba,
declaring the latter as a regular employee and ordering petitioner
corporation to reinstate Calamba to the position of gardener without
loss of seniority and with full back wages, benefits and privileges from
the time of his dismissal up to therein statement including 13
pay. Petitioner corporation filed an appeal to the NLRC contending that
Calamba was a contractual employee whose employment was for a
fixed and specific period as set forth and evidenced by Calambas
contracts of employment. However, the NLRC dismissed the appeal for
lack of merit. The latter argued that Calamba having rendered services
as laborer, gardener, and dishwasher for more than one year, was
a regular employee at the time his employment was terminated. Hence,
the petition.

Whether or not Calamba is a regular employee at the time his
employment was terminated?

YES. The court held that an employment shall be deemed to be
regular where the employee has been engaged to perform activities
which are usually necessary or desirable in the usual business or trade
of the employer. Also, if the employee has been performing the job for
at least one year, even if the performance is not continuous or merely
intermittent, the law deems the repeated and continuing need for its
performance as sufficient evidence of the necessity if not
indispensability of that activity to the business. Hence, the employment
is also considered regular, but only with respect to such activity and
while such activity exists. In the case at bar, the records reveal that
Calamba was repeatedly re-hired to perform tasks ranging from
dishwashing and gardening, aside from performing maintenance work.
Such repeated rehiring and the continuing need for his service are
sufficient evidence of the necessity and indispensability of his service to
the petitioners business or trade. Owing to Calambas length of service
with the petitioners corporation, he became a regular employee, by
operation of law, one year after he was employed. The employment
contracts entered into by Calamba with the petitioner have the purpose
of circumventing the employees security of tenure. The court therefore,
rigorously disapproves said contracts which demonstrate a clear
attempt to exploit the employee and deprive him of the protection
sanctioned by the labor code. It is noteworthy that what determines
whether a certain employment is regular or casual is not the will and
word of the employer, it is the nature of the activities performed in
relation to the particular business or trade considering all
circumstances, and in some cases the length of time of its performance
and its continued existence.




On November 21, 1998, respondent Renato M. Gatbonton was
hired as Chief Steward in petitioner Dusit Hotel Nikkos Food and
Beverage Department. He signed a three-month probationary
employment contract until February 21, 1999, with a monthly salary of
P25,000. At the start of his employment, the standards by which he
would be assessed to qualify for regular employment were explained to
The hotel alleged that at the end of the probation period, Ingo
Rauber, Director of its Food and Beverage Department, observed that
Gatbonton failed to meet the qualification standards for Chief Steward,
and Rauber recommended a two-month extension of Gatbontons
probationary period, or until April 22, 1999. At the end of the 4th
month, on March 24, 1999, Rauber informed Gatbonton that the latter
had poor ratings on staff supervision, productivity, quantity of work, and
overall efficiency and did not qualify as Chief Steward. Gatbonton
requested another month or until April 22, 1999 to improve his
performance, to which Rauber agreed but allegedly refused to sign the
Performance Evaluation Form. Neither did he sign the Memorandum
on the extension.
On March 31, 1999, a notice of termination of probationary
employment effective April 9, 1999, on the above alleged grounds was
served on Gatbonton. On April 12, 1999, he filed a complaint for illegal
dismissal and non-payment of wages, with prayers for reinstatement,
full backwages, and damages, including attorneys fees.

Whether or not respondent was a regular employee at the time
of his dismissal.

The SC held that as Article 281 clearly states, a probationary
employee can be legally terminated either: (1) for a just cause; or (2)
when the employee 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 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; and 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, the petitioner did not present proof that the respondent
was evaluated from November 21, 1998 to February 21, 1999, nor that
his probationary employment was validly extended. The petitioner
alleged that at the end of the respondents three-month probationary
employment, Rauber recommended that the period be extended for two
months since respondent Gatbonton was not yet ready for regular
employment. The petitioner presented a Personnel Action Form
containing the recommendation. We observed, however, that this
document was prepared on March 31, 1999, the end of the 4th month
of the respondents employment. In fact, the recommended action was
termination of probationary employment effective April 9, 1999, and not
extension of probation period. Upon appeal to the NLRC, the petitioner
presented another Personnel Action Form prepared on March 2, 1999,
showing that the respondents probationary employment was extended
for two months effective February 23, 1999.

The Personnel Action Form dated March 2, 1999, contained the
following remarks: subject to undergo extension of probation for two
(2) months as per attached memo. Yet, we find this document
inconclusive. First, the action form did not contain the results of the
respondents evaluation. Without the evaluation, the action form had
no basis. Second, the action form spoke of an attached memo which
the petitioner identified as Raubers Memorandum, recommending the
extension of the respondents probation period for two months. Again,
the supposed Memorandum was not presented. Third, the action form
did not bear the respondents signature.

In the absence of any evaluation or valid extension, we cannot
conclude that respondent failed to meet the standards of performance
set by the hotel for a chief steward. At the expiration of the three-month
period, Gatbonton had become a regular employee. It is an elementary
rule in the law on labor relations that a probationary employee engaged
to work beyond the probationary period of six months, as provided
under Article 281 of the Labor Code, or for any length of time set forth
by the employer (in this case, three months), shall be considered a
regular employee. This is clear in the last sentence of Article 281. Any
circumvention of this provision would put to naught the States avowed
protection for labor.

Since respondent was not dismissed for a just or authorized
cause, his dismissal was illegal, and he is entitled to reinstatement
without loss of seniority rights, and other privileges as well as to full
backwages, inclusive of allowances, and to other benefits or their
monetary equivalent computed from the time his compensation was
withheld from him up to the time of his actual reinstatement.

Petition is denied.


and PRISCILA ENDOZO, respondents.

FACTS: Priscila Endozo applied to Sameer Overseas Employment
Agency, a local recruitment placement agency, for overseas
employment in Taiwan as a domestic helper. As she was initially found
to have a "minimal spot" she was advised to rest for at least 2 months.
Sameer told Endozo that she would be finally deployed to Taiwan and
required her to pay the amount of P30,000.00, which she did, but
Sameer did not issue any receipt.

Endozo left for Taiwan. She was to be employed as a housemaid of
Sung Kui Mei with a monthly salary of NT$13,380.00 for a period of one
year. However, she stayed in Taiwan only for 11 days as her employer
terminated her services, and sent her home for alleged incompetence.

Immediately upon her return, she confronted Sameer agency and Rose
Mahinay of said agency told her that she was just unlucky and that she
would be refunded the amount of P50,000.00.

Endozo filed with the POEA a complaint against petitioner for illegal
dismissal, payment of salary corresponding to the unexpired portion of
her contract, illegal exaction, violation of the Labor Code, falsification of
contract of employment, attorneys fees and costs. Meantime, on June
7, 1995, Congress enacted Republic Act No. 8042, vesting jurisdiction
over claims of overseas workers with NLRC. Consequently, Endozos
claim was transferred to the NLRC, Arbitration Branch.

Labor Arbiter: rendered a decision finding that Endozo was illegally
dismissed and ordering Sameer agency to pay her salary
corresponding to the unexpired portion of her contract of employment of
eleven (11) months and nineteen (19) days equivalent plus ten percent
(10%) of the award as attorney's fees.

NLRC: rendered decision affirming in toto the decision of the Labor

ISSUE: WON the employer in Taiwan could lawfully terminate private
respondent's employment as domestic helper for incompetence during
the probationary period of her employment.

HELD: No. It is an elementary rule in the law on labor relations that
even a probationary employee is entitled to security of tenure. A
probationary employee can not be terminated, except for cause.

In this case, the employment contract was for a definite period of one
(1) year, with six (6) months probationary period. After only eleven days
of work, the employer dismissed private respondent without just cause.

Under Article 281 of the Labor Code, a probationary employee may be
terminated on two grounds: (a) for just cause or (b) 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. Under the contract of employment, the employer may
terminate the services of private respondent during the probationary
period for "being found losing ability to work." However, the power of
the employer to terminate a probationary employment contract is
subject to limitations. First, it must be exercised in accordance with the
specific requirements of the contract. Secondly, the dissatisfaction of
the employer must be real and in good faith, not feigned so as to
circumvent the contract or the law; and thirdly, 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. In this case, petitioner was not able to present
convincing proof establishing respondent Endozos alleged
incompetence. Due process dictates that an employee be apprised
beforehand of the conditions of his employment and of the terms of
advancement therein. Precisely, implicit in Article 281 of the Code is
the requirement that reasonable standards be previously made known
by the employer to the probationary employee at the time of his

Thus, the termination of respondent Endozos employment was not
justified and hence, illegal. Consequently, private respondent is entitled
to payment of her salaries corresponding to the unexpired portion of her
contract of employment for a period of one year. Court DISMISSES the
petition and AFFIRMS the resolution NLRC.