[G.R. No. 47800. December 2, 1940.
] made to prevail over liberty because then the individual
Calalang vs Wiliams
1. CONSTITUTIONAL LAW; CONSTITUTIONALITY OF
COMMONWEALTH ACT No. 648; DELEGATION OF
LEGISLATIVE POWER; AUTHORITY OF DIRECTOR
OF PUBLIC WORKS AND SECRETARY OF PUBLIC
WORKS AND COMMUNICATIONS TO PROMULGATE
RULES AND REGULATIONS. The provisions of
section 1 of Commonwealth Act No. 648 do not confer
legislative power upon the Director of Public Works and
the Secretary of Public Works and Communications. The
authority therein conferred upon them and under which
they promulgated the rules and regulations now
complained of is not to determine what public policy
demands but merely to carry out the legislative policy laid
down by the National Assembly in said Act, to wit, "to
promote safe transit upon, and avoid obstructions on,
roads and streets designated as national roads by acts of
the National Assembly or by executive orders of the
President of the Philippines" and to close them
temporarily to any or all classes of traffic "whenever the
condition of the road or the traffic thereon makes such
action necessary or advisable in the public convenience
and interest." The delegated power, if at all, therefore, is
not the determination of what the law shall be, but merely
the ascertainment of the facts and circumstances upon
which the application of said law is to be predicated. To
promulgate rules and regulations on the use of national
roads and to determine when and how long a national
road should be closed to traffic, in view of the condition of
the road or the traffic thereon and the requirements of
public convenience and interest, is an administrative
function which cannot be directly discharged by the
National Assembly. It must depend on the discretion of
some other government official to whom is confided the
duty of determining whether the proper occasion exists for
executing the law. But it cannot be said that the exercise
of such discretion is the making of the law.
2. ID.; ID.; POLICE POWER; PERSONAL LIBERTY;
GOVERNMENTAL AUTHORITY. Commonwealth Act
No. 548 was passed by the National Assembly in the
exercise of the paramount police power of the state. Said
Act, by virtue of which the rules and regulations
complained of were promulgated, aims to promote safe
transit upon and avoid obstructions on national roads, in
the interest and convenience of the public. In enacting
said law, therefore, the National Assembly was prompted
by considerations of public convenience and welfare. It
was inspired by a desire to relieve congestion of traffic,
which is, to say the least, a menace to public safety.
Public welfare, then, lies at the bottom of the enactment
of said law, and the state in order to promote the general
welfare may interfere with personal liberty, with property,
and with business and occupations. Persons and property
may be subjected to all kinds of restraints and burdens, in
order to secure the general comfort, health, and
prosperity of the state (U.S. v. Gomer Jesus, 31 Phil.,
218). To this fundamental aim of our Government the
rights of the individual are subordinated. Liberty is a
blessing without which life is a misery, but liberty should
not be made to prevail over authority because then
society will fall into anarchy. Neither should authority be
will fall into slavery. The citizen should achieve the
required balance of liberty and authority in his mind
through education and, personal discipline, so that there
may be established the resultant equilibrium, which
means peace and order and happiness for all. The
moment greater authority is conferred upon the
government, logically so much is withdrawn from the
residuum of liberty which resides in the people. The
paradox lies in the fact that the apparent curtailment of
liberty is precisely the very means of insuring its
preservation.
3. ID.; ID.; SOCIAL JUSTICE. Social justice is "neither
communism, nor despotism, nor atomism, nor anarchy,"
but the humanization of laws and the equalization of
social and economic forces by the State so that justice in
its rational and objectively secular conception may at least
be approximated. Social justice means the promotion of
the welfare of all the people, the adoption by the
Government of measures calculated to insure economic
stability of all the competent elements of society, through
the maintenance of a proper economic and social
equilibrium in the interrelations of the members of the
community, constitutionally, through the adoption of
measures legally justifiable, or extra-constitutionally,
through the exercise of powers underlying the existence
of all governments on the time-honored principle of salus
populi est suprema lex. Social justice, therefore, must be
founded on the recognition of the necessity of
interdependence among divers and diverse units of a
society and of the protection that should be equally and
evenly extended to all groups as a combined force in our
social and economic life, consistent with the fundamental
and paramount objective of the state of promoting the
health, comfort, and quiet of all persons, and of bringing
about "the greatest good to the greatest number."
DECISION
LAUREL, J.:
Maximo Calalang, in his capacity as a private citizen and
as a taxpayer of Manila, brought before this court this
petition for a writ of prohibition against the respondents,
A. D. Williams, as Chairman of the National Traffic
Commission; Vicente Fragante, as Director of Public
Works; Sergio Bayan, as Acting Secretary of Public
Works and Communications; Eulogio Rodriguez, as
Mayor of the City of Manila; and Juan Dominguez, as
Acting Chief of Police of Manila.
It is alleged in the petition that the National Traffic
Commission, in its resolution of July 17, 1940, resolved to
recommend to the Director of Public Works and to the
Secretary of Public Works and Communications that
animal-drawn vehicles be prohibited from passing along
Rosario Street extending from Plaza Calderon de la Barca
to Dasmarias Street, from 7:30 a.m. to 12:30 p.m. and
from 1:30 p.m. to 5:30 p.m.; and along Rizal Avenue
extending from the railroad crossing at Antipolo Street to
Echague Street, from 7 a.m. to 11 p.m., from a period of
one year from the date of the opening of the Colgante
Bridge to traffic; that the Chairman of the National Traffic
Commission, on July 18, 1940 recommended to the
Director of Public Works the adoption of the measure
proposed in the resolution aforementioned, in pursuance
of the provisions of Commonwealth Act No. 548 which
authorizes said Director of Public Works, with the
approval of the Secretary of Public Works and
Communications, to promulgate rules and regulations to
regulate and control the use of and traffic on national
roads; that on August 2, 1940, the Director of Public
Works, in his first indorsement to the Secretary of Public
Works and Communications, recommended to the latter
the approval of the recommendation made by the
Chairman of the National Traffic Commission as
aforesaid, with the modification that the closing of Rizal
Avenue to traffic to animal-drawn vehicles be limited to
the portion thereof extending from the railroad crossing at
Antipolo Street to Azcarraga Street; that on August 10,
1940, the Secretary of Public Works and
Communications, in his second indorsement addressed
to the Director of Public Works, approved the
recommendation of the latter that Rosario Street and
Rizal Avenue be closed to traffic of animal-drawn
vehicles, between the points and during the hours as
above indicated, for a period of one year from the date of
the opening of the Colgante Bridge to traffic; that the
Mayor of Manila and the Acting Chief of Police of Manila
have enforced and caused to be enforced the rules and
regulations thus adopted; that as a consequence of such
enforcement, all animal-drawn vehicles are not allowed to
pass and pick up passengers in the places above-
mentioned to the detriment not only of their owners but of
the riding public as well.
It is contended by the petitioner that Commonwealth Act
No. 548 by which the Director of Public Works, with the
approval of the Secretary of Public Works and
Communications, is authorized to promulgate rules and
regulations for the regulation and control of the use of and
traffic on national roads and streets is unconstitutional
because it constitutes an undue delegation of legislative
power. This contention is untenable. As was observed by
this court in Rubi v. Provincial Board of Mindoro (39 Phil,
660, 700), "The rule has nowhere been better stated than
in the early Ohio case decided by Judge Ranney, and
since followed in a multitude of cases, namely: The true
distinction therefore is between the delegation of power to
make the law, which necessarily involves a discretion as
to what it shall be, and conferring an authority or
discretion as to its execution, to be exercised under and
in pursuance of the law. The first cannot be done; to the
latter no valid objection can be made. (Cincinnati, W. &
Z. R. Co. v. Commrs. Clinton County, 1 Ohio St., 88.)
Discretion, as held by Chief Justice Marshall in Wayman
v. Southard (10 Wheat., 1) may be committed by the
Legislature to an executive department or official. The
Legislature may make decisions of executive
departments or subordinate officials thereof, to whom it
has committed the execution of certain acts, final on
questions of fact. (U.S. v. Kinkead, 248 Fed., 141.) The
growing tendency in the decisions is to give prominence
to the necessity of the case."cralaw virtua1aw library
Section 1 of Commonwealth Act No. 548 reads as
follows:jgc:chanrobles.com.ph
"SECTION 1. To promote safe transit upon, and avoid
obstructions on, roads and streets designated as national
roads by acts of the National Assembly or by executive
orders of the President of the Philippines, the Director of
Public Works, with the approval of the Secretary of Public
Works and Communications, shall promulgate the
necessary rules and regulations to regulate and control
the use of and traffic on such roads and streets. Such
rules and regulations, with the approval of the President,
may contain provisions controlling or regulating the
construction of buildings or other structures within a
reasonable distance from along the national roads. Such
roads may be temporarily closed to any or all classes of
traffic by the Director of Public Works and his duly
authorized representatives whenever the condition of the
road or the traffic thereon makes such action necessary
or advisable in the public convenience and interest, or for
a specified period, with the approval of the Secretary of
Public Works and Communications."cralaw virtua1aw
library
The above provisions of law do not confer legislative
power upon the Director of Public Works and the
Secretary of Public Works and Communications. The
authority therein conferred upon them and under which
they promulgated the rules and regulations now
complained of is not to determine what public policy
demands but merely to carry out the legislative policy laid
down by the National Assembly in said Act, to wit, "to
promote safe transit upon and avoid obstructions on,
roads and streets designated as national roads by acts of
the National Assembly or by executive orders of the
President of the Philippines" and to close them
temporarily to any or all classes of traffic "whenever the
condition of the road or the traffic makes such action
necessary or advisable in the public convenience and
interest." The delegated power, if at all, therefore, is not
the determination of what the law shall be, but merely the
ascertainment of the facts and circumstances upon which
the application of said law is to be predicated. To
promulgate rules and regulations on the use of national
roads and to determine when and how long a national
road should be closed to traffic, in view of the condition of
the road or the traffic thereon and the requirements of
public convenience and interest, is an administrative
function which cannot be directly discharged by the
National Assembly. It must depend on the discretion of
some other government official to whom is confided the
duty of determining whether the proper occasion exists for
executing the law. But it cannot be said that the exercise
of such discretion is the making of the law. As was said in
Lockes Appeal (72 Pa. 491): "To assert that a law is less
than a law, because it is made to depend on a future event
or act, is to rob the Legislature of the power to act wisely
for the public welfare whenever a law is passed relating
to a state of affairs not yet developed, or to things future
and impossible to fully know." The proper distinction the
court said was this: "The Legislature cannot delegate its
power to make the law; but it can make a law to delegate
a power to determine some fact or state of things upon
which the law makes, or intends to make, its own action
depend. To deny this would be to stop the wheels of
government. There are many things upon which wise and
useful legislation must depend which cannot be known to
the law-making power, and, must, therefore, be a subject
of inquiry and determination outside of the halls of
legislation." (Field v. Clark, 143 U. S. 649, 694; 36 L. Ed.
294.)
In the case of People v. Rosenthal and Osmea, G.R.
Nos. 46076 and 46077, promulgated June 12, 1939, and
in Pangasinan Transportation v. The Public Service
Commission, G.R. No. 47065, promulgated June 26,
1940, this Court had occasion to observe that the principle
of separation of powers has been made to adapt itself to
the complexities of modern governments, giving rise to
the adoption, within certain limits, of the principle of
"subordinate legislation," not only in the United States and
England but in practically all modern governments.
Accordingly, with the growing complexity of modern life,
the multiplication of the subjects of governmental
regulations, and the increased difficulty of administering
the laws, the rigidity of the theory of separation of
governmental powers has, to a large extent, been relaxed
by permitting the delegation of greater powers by the
legislative and vesting a larger amount of discretion in
administrative and executive officials, not only in the
execution of the laws, but also in the promulgation of
certain rules and regulations calculated to promote public
interest.
The petitioner further contends that the rules and
regulations promulgated by the respondents pursuant to
the provisions of Commonwealth Act No. 548 constitute
an unlawful interference with legitimate business or trade
and abridge the right to personal liberty and freedom of
locomotion. Commonwealth Act No. 548 was passed by
the National Assembly in the exercise of the paramount
police power of the state.
Said Act, by virtue of which the rules and regulations
complained of were promulgated, aims to promote safe
transit upon and avoid obstructions on national roads, in
the interest and convenience of the public. In enacting
said law, therefore, the National Assembly was prompted
by considerations of public convenience and welfare. It
was inspired by a desire to relieve congestion of traffic.
which is, to say the least, a menace to public safety.
Public welfare, then, lies at the bottom of the enactment
of said law, and the state in order to promote the general
welfare may interfere with personal liberty, with property,
and with business and occupations. Persons and property
may be subjected to all kinds of restraints and burdens, in
order to secure the general comfort, health, and
prosperity of the state (U.S. v. Gomez Jesus, 31 Phil.,
218). To this fundamental aim of our Government the
rights of the individual are subordinated. Liberty is a
blessing without which life is a misery, but liberty should
not be made to prevail over authority because then
society will fall into anarchy. Neither should authority be
made to prevail over liberty because then the individual
will fall into slavery. The citizen should achieve the
required balance of liberty and authority in his mind
through education and personal discipline, so that there
may be established the resultant equilibrium, which
means peace and order and happiness for all. The
moment greater authority is conferred upon the
government, logically so much is withdrawn from the
residuum of liberty which resides in the people. The
paradox lies in the fact that the apparent curtailment of
liberty is precisely the very means of insuring its
preservation.
The scope of police power keeps expanding as civilization
advances. As was said in the case of Dobbins v. Los
Angeles (195 U.S. 223, 238; 49 L. ed. 169), "the right to
exercise the police power is a continuing one, and a
business lawful today may in the future, because of the
changed situation, the growth of population or other
causes, become a menace to the public health and
welfare, and be required to yield to the public good." And
in People v. Pomar (46 Phil., 440), it was observed that
"advancing civilization is bringing within the police power
of the state today things which were not thought of as
being within such power yesterday. The development of
civilization, the rapidly increasing population, the growth
of public opinion, with an increasing desire on the part of
the masses and of the government to look after and care
for the interests of the individuals of the state, have
brought within the police power many questions for
regulation which formerly were not so considered."cralaw
virtua1aw library
The petitioner finally avers that the rules and regulations
complained of infringe upon the constitutional precept
regarding the promotion of social justice to insure the well-
being and economic security of all the people. The
promotion of social justice, however, is to be achieved not
through a mistaken sympathy towards any given group.
Social justice is "neither communism, nor despotism, nor
atomism, nor anarchy," but the humanization of laws and
the equalization of social and economic forces by the
State so that justice in its rational and objectively secular
conception may at least be approximated. Social justice
means the promotion of the welfare of all the people, the
adoption by the Government of measures calculated to
insure economic stability of all the competent elements of
society, through the maintenance of a proper economic
and social equilibrium in the interrelations of the members
of the community, constitutionally, through the adoption of
measures legally justifiable, or extra-constitutionally,
through the exercise of powers underlying the existence
of all governments on the time-honored principle of salus
populi est suprema lex.
Social justice, therefore, must be founded on the
recognition of the necessity of interdependence among
divers and diverse units of a society and of the protection
that should be equally and evenly extended to all groups
as a combined force in our social and economic life,
consistent with the fundamental and paramount objective
of the state of promoting the health, comfort, and quiet of
all persons, and of bringing about "the greatest good to
the greatest number."cralaw virtua1aw library
In view of the foregoing, the writ of prohibition prayed for
is hereby denied, with costs against the petitioner. So
ordered.
PHILIPPINE AIRLINES, INC., petitioner, suspend private respondent for three months effective
vs. NATIONAL LABOR RELATIONS COMMISSION, December 16, 1994.
LABOR ARBITER ROMULUS PROTACIO and DR.
Private respondent filed a complaint for illegal
HERMINIO A. FABROS, respondents.
suspension against petitioner.

DECISION On July 16, 1996, Labor Arbiter Romulus A. Protasio

PUNO, J.:
Petitioner Philippine Airlines, Inc. assails the
decision of the National Labor Relations Commission
dismissing its appeal from the decision of Labor Arbiter
Romulus S. Protacio which declared the suspension of
private respondent Dr. Herminio A. Fabros illegal and
ordered petitioner to pay private respondent the amount
equivalent to all the benefits he should have received
during his period of suspension plus P500,000.00 moral
damages.
The facts are as follow:
rendered a decision[1] declaring the suspension of private
respondent illegal. It also ordered petitioner to pay private
respondent the amount equivalent to all the benefits he
should have received during his period of suspension
plus P500,000.00 moral damages. The dispositive
portion of the decision reads:
WHEREFORE, in view of all the foregoing, judgment is
hereby rendered declaring the suspension of complainant
as illegal, and ordering the respondents the restitution to
the complainant of all employment benefits equivalent to
his period of suspension, and the payment to the
complainant of P500,000.00 by way of moral damages.[2]

Private respondent was employed as flight surgeon

Petitioner appealed to the NLRC. The NLRC,
at petitioner company. He was assigned at the PAL
however, dismissed the appeal after finding that the
Medical Clinic at Nichols and was on duty from 4:00 in the
decision of the Labor Arbiter is supported by the facts on
afternoon until 12:00 midnight.
record and the law on the matter.[3] The NLRC likewise
On February 17, 1994, at around 7:00 in the evening, denied petitioners motion for reconsideration.[4]
private respondent left the clinic to have his dinner at his
Hence, this petition raising the following arguments:
residence, which was about five-minute drive away. A few
minutes later, the clinic received an emergency call from
1. The public respondents acted without or in excess
the PAL Cargo Services. One of its employees, Mr.
of their jurisdiction and with grave abuse of
Manuel Acosta, had suffered a heart attack. The nurse on
discretion in nullifying the 3-month suspension of
duty, Mr. Merlino Eusebio, called private respondent at
private respondent despite the fact that the
home to inform him of the emergency. The patient arrived
private respondent has committed an offense that
at the clinic at 7:50 in the evening and Mr. Eusebio
warranted the imposition of disciplinary action.
immediately rushed him to the hospital. When private
respondent reached the clinic at around 7:51 in the
2. The public respondents acted without or in excess
evening, Mr. Eusebio had already left with the patient. Mr.
of their jurisdiction and with grave abuse of
Acosta died the following day.
discretion in holding the petitioner liable for moral
Upon learning about the incident, PAL Medical damages:
Director Dr. Godofredo B. Banzon ordered the Chief Flight
Surgeon to conduct an investigation. The Chief Flight (a) Despite the fact that no formal hearing
Surgeon, in turn, required private respondent to explain whatsoever was conducted for
why no disciplinary sanction should be taken against him. complainant to substantiate his claim;

In his explanation, private respondent asserted that

he was entitled to a thirty-minute meal break; that he
immediately left his residence upon being informed by Mr.
Eusebio about the emergency and he arrived at the clinic
a few minutes later; that Mr. Eusebio panicked and
brought the patient to the hospital without waiting for him.
Finding private respondents explanation
unacceptable, the management charged private
respondent with abandonment of post while on duty. He
was given ten days to submit a written answer to the
administrative charge.
In his answer, private respondent reiterated the
assertions in his previous explanation. He further denied
that he abandoned his post on February 17, 1994. He
said that he only left the clinic to have his dinner at
home. In fact, he returned to the clinic at 7:51 in the
evening upon being informed of the emergency.
After evaluating the charge as well as the answer of
private respondent, petitioner company decided to
(b) Despite the absence of proof that the
petitioner acted in bad faith in imposing
the 3-month suspension; and
(c) Despite the fact that the Labor Arbiter's
award of moral damages is highly
irregular, considering that it was more
than what the private respondent prayed
for.[5]
We find that public respondents did not err in
nullifying the three-month suspension of private
respondent. They, however, erred in awarding moral
damages to private respondent.
First, as regards the legality of private respondents
suspension. The facts do not support petitioners
allegation that private respondent abandoned his post on
the evening of February 17, 1994. Private respondent left
the clinic that night only to have his dinner at his house,
which was only a few minutes drive away from the
clinic. His whereabouts were known to the nurse on duty
so that he could be easily reached in case of emergency.
Upon being informed of Mr. Acostas condition, private
respondent immediately left his home and returned to the
clinic.These facts belie petitioners claim of abandonment.
Petitioner argues that being a full-time employee,
private respondent is obliged to stay in the company
premises for not less than eight (8) hours. Hence, he may
not leave the company premises during such time, even
to take his meals.
We are not impressed.
Articles 83 and 85 of the Labor Code read:
Art. 83. Normal hours of work.The normal hours of work
of any employee shall not exceed eight (8) hours a day.
Health personnel in cities and municipalities with a
population of at least one million (1,000,000) or in
hospitals and clinics with a bed capacity of at least one
hundred (100) shall hold regular office hours for eight (8)
hours a day, for five (5) days a week, exclusive of time
for meals, except where the exigencies of the service
require that such personnel work for six (6) days or forty-
eight (48) hours, in which case they shall be entitled to an
additional compensation of at least thirty per cent (30%)
of their regular wage for work on the sixth day. For
purposes of this Article, health personnel shall include:
resident physicians, nurses, nutritionists, dieticians,
pharmacists, social workers, laboratory technicians,
paramedical technicians, psychologists, midwives,
attendants and all other hospital or clinic
personnel. (emphasis supplied)
Art. 85. Meal periods.Subject to such regulations as the
Secretary of Labor may prescribe, it shall be the duty of
every employer to give his employees not less than sixty
(60) minutes time-off for their regular meals.
Section 7, Rule I, Book III of the Omnibus Rules
Implementing the Labor Code further states:
Sec. 7. Meal and Rest Periods.Every employer shall
give his employees, regardless of sex, not less than one
(1) hour time-off for regular meals, except in the following
cases when a meal period of not less than twenty (20)
minutes may be given by the employer provided that such
shorter meal period is credited as compensable hours
worked of the employee;
(a) Where the work is non-manual work in nature or does
not involve strenuous physical exertion;
(b) Where the establishment regularly operates not less
than sixteen hours a day;
(c) In cases of actual or impending emergencies or there
is urgent work to be performed on machineries,
equipment or installations to avoid serious loss which the
employer would otherwise suffer; and
(d) Where the work is necessary to prevent serious loss
of perishable goods.
Rest periods or coffee breaks running from five (5) to
twenty (20) minutes shall be considered as compensable
working time.
Thus, the eight-hour work period does not include
the meal break. Nowhere in the law may it be inferred that
employees must take their meals within the company
premises.Employees are not prohibited from going out of
the premises as long as they return to their posts on
time. Private respondents act, therefore, of going home to
take his dinner does not constitute abandonment.
We now go to the award of moral damages to private
respondent.
Not every employee who is illegally dismissed or
suspended is entitled to damages. As a rule, moral
damages are recoverable only where the dismissal or
suspension of the employee was attended by bad faith or
fraud, or constituted an act oppressive to labor, or was
done in a manner contrary to morals, good customs or
public policy.[6] Bad faith does not simply mean
negligence or bad judgment. It involves a state of mind
dominated by ill will or motive. It implies a conscious and
intentional design to do a wrongful act for a dishonest
purpose or some moral obliquity.[7] The person claiming
moral damages must prove the existence of bad faith by
clear and convincing evidence for the law always
presumes good faith.[8]
In the case at bar, there is no showing that the
management of petitioner company was moved by some
evil motive in suspending private respondent. It
suspended private respondent on an
honest, albeit erroneous, belief that private respondents
act of leaving the company premises to take his meal at
home constituted abandonment of post which warrants
the penalty of suspension. Also, it is evident from the facts
that petitioner gave private respondent all the opportunity
to refute the charge against him and to defend
himself. These negate the existence of bad faith on the
part of petitioner. Under the circumstances, we hold that
private respondent is not entitled to moral damages.
IN VIEW WHEREOF, the petition is PARTIALLY
GRANTED. The portion of the assailed decision awarding
moral damages to private respondent is DELETED. All
other aspects of the decision are AFFIRMED.
SO ORDERED.
BREW MASTER INTERNATIONAL INC., petitioner,
vs. NATIONAL FEDERATION OF LABOR UNIONS
(NAFLU), ANTONIO D. ESTRADA and HONORABLE
NATIONAL LABOR RELATIONS COMMISSION (Third
Division), respondents.
DECISION
DAVIDE, JR., J.:
This is a special civil action for certiorari seeking the
reversal of the 7 October 1994 decision[1] of the National
Labor Relations Commission (NLRC) in NLRC Case No.
00-06-04136-93 (CA No. L-007370-94), which modified
the 11 July 1994 decision[2] of the Labor Arbiter by
directing the reinstatement of private respondent Antonio
D. Estrada, the complainant, without loss of seniority
rights and benefits.
Private respondent National Federation of Labor
Unions (NAFLU), a co-complainant in the labor case, is a
labor union of which complainant is a member.
The factual and procedural antecedents are
summarized in the decision of the Labor Arbiter which we
quote verbatim:
Complainant was first employed by respondent on 16
September 1991 as route helper with the latest daily wage
of P119.00. From 19 April 1993 up to 19 May 1993, for a
period of one (1) month, complainant went on absent
without permission (AWOP). On 20 May 1993,
respondent thru Mr. Rodolfo Valentin, sent a Memo to
complainant, to wit:
Please explain in writing within 24 hours of your receipt of
this memo why no disciplinary action should be taken
against you for the following offense:
You were absent since April 19, 1993 up to May 19, 1993.
For your strict compliance.
In answer to the aforesaid memo, complainant explained:
Sa dahilan po na ako ay hindi nakapagpaalam sainyo [sic]
dahil inuwi ko ang mga anak ko sa Samar dahil ang
asawa ko ay lumayas at walang mag-aalaga sa mga anak
ko. Kaya naman hindi ako naka long distance or
telegrama dahil wala akong pera at ibinili ko ng gamot ay
puro utang pa.
Finding said explanation unsatisfactory, on 16 June 1993,
respondent thru its Sales Manager, Mr. Henry A. Chongco
issued a Notice of Termination which reads:
We received your letter of explanation dated May 21,
1993 but we regret to inform you that we do not consider
it valid. You are aware of the company Rules and
Regulations that absence without permission for six (6)
consecutive working days is considered abandonment of
work.
In view of the foregoing, the company has decided to
terminate your employment effective June 17, 1993 for
abandonment of work.
Hence, this complaint.
Complainants contend that individual complainants
dismissal was done without just cause; that it was not
sufficiently established that individual complainants
absence from April 19, 1993 to June 16, 1993 are
unjustified; that the penalty of dismissal for such violation
is too severe; that in imposing such penalty, respondent
should have taken into consideration complainants length
of service and as a first offender, a penalty less punitive
will suffice such as suspension for a definite period,
(Position Paper, complainants).
Upon the other hand, respondent contends that individual
complainant was dismissed for cause allowed by the
company Rules and Regulations and the Labor Code; that
the act of complainant in absenting from work for one (1)
month without official leave is deleterious to the business
of respondent; that it will result to stoppage of production
which will not only destructive to respondents interests but
also to the interest of its employees in general; that the
dismissal of complainant from the service is legal,
(Position Paper, respondent).[3]
The Labor Arbiter dismissed the complaint for lack of
merit, citing the principle of managerial control, which
recognizes the employers prerogative to prescribe
reasonable rules and regulations to govern the conduct of
his employees. The principle allows the imposition of
disciplinary measures which are necessary for the
efficiency of both the employer and the employees. In
complainant's case, he persisted in not reporting for work
until 16 June 1993 notwithstanding his receipt of the
memorandum requiring him to explain his absence
without approval. The Labor Arbiter, relying on Shoemart,
Inc. vs. NLRC,[4] thus concluded:
Verily, it is crystal clear that individual complainant has
indeed abandoned his work. The filing of the complaint on
25 June 1993 or almost two (2) months from the date
complainant failed to report for work affirms the findings
of this Office and therefore, under the law and
jurisprudence which upholds the right of an employer to
discharge an employee who incurs frequent, prolonged
and unexplained absences as being grossly remiss in his
duties to the employer and is therefore, dismissed for
cause, (Shoemart, Inc. vs. NLRC, 176 SCRA 385). An
employee is deemed to have abandoned his position or
to have resigned from the same, whenever he has been
absent therefrom without previous permission of the
employer for three consecutive days or more. This
justification is the obvious harm to employers interest,
resulting from [sic] the non-availability of the workers
services, (Supra). (underscoring supplied)[5]
and ruled that complainants termination from his
employment was legal, the same with just or authorized
cause and due process.[6]
Complainant appealed to the NLRC, alleging that the
immediate filing of a complaint for illegal dismissal verily
indicated that he never intended to abandon his work,
then cited Policarpio v. Vicente Dy Sun, Jr.,[7] where the
NLRC ruled that prolonged absence does not, by itself,
necessarily mean abandonment. Accordingly, there must
be a concurrence of intention and overt acts from which it
can be inferred that the employee is no longer interested
in working. Complainant likewise invoked compassion in
the application of sanctions, as dismissal from
employment brings untold hardship and sorrows on the
dependents of the wage earners. In his case, a penalty
less punitive than dismissal could have sufficed.
In the assailed decision[8] of 7 October 1994, the
NLRC modified the Labor Arbiter's decision and held that
complainants dismissal was invalid for the following
reasons:
Complainant-appellants prolonged absences, although
unauthorized, may not amount to gross neglect or
abandonment of work to warrant outright termination of
employment. Dismissal is too severe a penalty. For one,
the mere fact that complainant-appellant is a first
offender must be considered in his favor. Besides, it is
generally impossible for an employee to anticipate when
he would be ill or compelled to attend to some family
problems or emergency like in the case at bar.
Reliance on the ruling enunciated in the cited case of
Shoemart Inc. vs. National Labor Relations, 176 SCRA
385, is quite misplaced because of the obvious
dissimilarities of the attendant circumstances in the said
case vis-a-vis those obtaining in the case at bar. Unlike in
the aforecited Shoemart Case, herein complainant-
appellant was not dismissed for unauthorized absences
and eventually reinstated anterior to his second dismissal
for the same offense nor was he given a second chance
which he could have ignored.
Otherwise stated, the difference between the two cases
greatly lies [in] the fact that complainant in the Shoemart
Case in the language of the Supreme Court was an
inveterate absentee who does not deserve reinstatement
compared to herein complainant-appellant who is
a first offender[9]
The NLRC then decreed as follows:
PREMISES CONSIDERED, and [sic] the Decision of the
Labor Arbiter, dated 11 July 1994 is hereby MODIFIED,
by directing the reinstatement of complainant-appellant to
his former position without loss of seniority rights and
other benefits, but without backwages. The other findings
in the appealed decision stand AFFIRMED.[10]
Petitioners motion for the reconsideration[11] was
denied by the NLRC in its 7 December 1994
resolution.[12] Petitioner thus filed this special civil action
contending thatthe NLRC committed grave abuse of
discretion in ordering complainant's reinstatement, which
in effect countenances the reinstatement of an employee
who is found guilty of excessive absences without prior
approval. It further argued that the NLRC failed to
consider the rationale behind petitioners Rules and
Regulations; that it was deprived of its prerogative to
enforce them; and that complainant's reinstatement would
adversely affect its business and send the wrong signals
to its employees.
In its comment[13] for public respondent NLRC, the
Office of the Solicitor General maintained that dismissal
from employment was too severe a penalty for a first time
offender like complainant. Although he violated
petitioners rules and regulations, his absences were
justified: he had to bring his children to Samar, his home
province, as his wife deserted him. While that by itself
might not excuse the failure to seek permission, the Office
of the Solicitor General submitted, however, that it would
be at [sic] the height of callousness if one, considering his
plight under the circumstance[s], would not give due
consideration to [complainants] explanation. There has to
be an exception.[14]
Applying Itogon-Suyoc Mines, Inc. v. NLRC,[15] the
Office of the Solicitor General recommended
complainants reinstatement, which would be more
harmonious to the dictates of social justice and equity. It
further emphasized that the reinstatement should not be
considered a condonation of complainants irresponsible
behavior, rather, it must be viewed as a mitigation of the
severity of the penalty of dismissal. Accordingly, it prays
that this petition be dismissed.
In its reply,[16] petitioner disputed the application of
Itogon-Suyoc because: (1) the employee involved therein
had been in the service for twenty-three years while
complainant herein had served petitioner for only two
years; and (2) the offense in Itogon-Suyoc was limited to
a single act of high grading while complainant herein
committed a series of unexcused absences.
We gave due course to the petition and dispensed
with complainants comment.
The sole issue to be resolved is whether the NLRC
committed grave abuse of discretion in modifying the
decision of the Labor Arbiter.
The answer must be in the negative.
A scrutiny of the facts discloses that complainants
absence was precipitated by a grave family problem as
his wife unexpectedly deserted him and abandoned the
family. Considering that he had a full-time job, there was
no one to whom he could entrust the children and he was
thus compelled to bring them to the province. It would
have been extremely difficult for him to have been
husband and wife/father and mother at the same time to
the children in the metropolis. He was then under
emotional, psychological, spiritual and physical stress
and strain. The reason for his absence is, under these
circumstances, justified. While his failure to inform and
seek petitioner's approval was an omission which must be
corrected and chastised, he did not merit the severest
penalty of dismissal from the service.
Petitioners finding that complainant was guilty of
abandonment is misplaced. Abandonment as a just and
valid ground for dismissal requires the deliberate,
unjustified refusal of the employee to resume his
employment. Two elements must then be satisfied: (1) the
failure to report for work or absence without valid or
justifiable reason; and (2) a clear intention to sever the
employer-employee relationship. The second element is
the more determinative factor and must be evinced by
overt acts.[17] Likewise, the burden of proof is on the
employer to show the employees clear and deliberate
intent to discontinue his employment without any intention
of returning,[18] mere absence is not sufficient.[19] These
elements are not present here. First, as held above,
complainant's absence was justified under the
circumstances. As to the second requisite, we are not
convinced that complainant ever intended to sever the
employer-employee relationship. Complainant
immediately complied with the memo requiring him to
explain his absence, and upon knowledge of his
termination, immediately sued for illegal dismissal. These
plainly refuted any claim that he was no longer interested
in returning to work.[20] Without doubt, the intention is
lacking.
 Moreover, petitioner failed to discharge the burden
of proof that complainant was guilty of abandonment. No
evidence other than complainants letter explaining his
absence was presented. Needless to state, the letter did
not indicate, in the least, that complainant was no longer
interested in returning to work. On the contrary,
complainant sought petitioners understanding. In
declaring him guilty of abandonment, petitioner merely
relied on its Rules and Regulations which limited its
application to a six-day continuous absence, contrary to
the purpose of the law. While the employer is not
precluded from prescribing rules and regulations to
govern the conduct of his employees, these rules and
their implementation must be fair, just and reasonable. It
must be underscored that no less than our Constitution
looks with compassion on the workingman and protects
his rights not only under a general statement of a state
policy,[21] but under the Article on Social Justice and
Human Rights,[22] thus placing labor contracts on a higher
plane and with greater safeguards. Verily, relations
between capital and labor are not merely
contractual. They are impressed with public interest and
labor contracts must, perforce, yield to the common
good.[23]
We then conclude that complainants "prolonged"
absence without approval does not fall within the
definition of abandonment and that his dismissal was
unjustified.While we do not decide here the validity of
petitioner's Rules and Regulations on continuous,
unauthorized absences, what is plain is that it was
wielded with undue haste resulting in a deprivation of due
process, thus not allowing for a determination of just
cause or abandonment. In this light, petitioner's dismissal
was illegal. This is not to say that his absence should go
unpunished, as impliedly noted by the NLRC in declining
to award back wages. In the absence of the appropriate
offense which defines complainants infraction in the
companys Rules and Regulations, equity dictates that a
penalty commensurate to the infraction be imposed.
WHEREFORE, the petition is hereby DISMISSED
and the decision of the National Labor Relations
Commission in NLRC Case No. 06-04136-93 is hereby
AFFIRMED. No pronouncement as to costs.
SO ORDERED.
NORMA MABEZA, petitioner, vs. NATIONAL LABOR
RELATIONS COMMISSION, PETER NG/HOTEL
SUPREME, respondents.
DECISION
KAPUNAN, J.:
This petition seeking the nullification of a resolution
of public respondent National Labor Relations
Commission dated April 28, 1994 vividly illustrates why
courts should be ever vigilant in the preservation of the
constitutionally enshrined rights of the working
class. Without the protection accorded by our laws and
the tempering of courts, the natural and historical
inclination of capital to ride roughshod over the rights of
labor would run unabated.
The facts of the case at bar, culled from the
conflicting versions of petitioner and private respondent,
are illustrative.
Petitioner Norma Mabeza contends that around the
first week of May, 1991, she and her co-employees at the
Hotel Supreme in Baguio City were asked by the hotel's
management to sign an instrument attesting to the latter's
compliance with minimum wage and other labor standard
provisions of law.[1] The instrument provides:[2]
JOINT AFFIDAVIT
We, SYLVIA IGANA, HERMINIGILDO AQUINO,
EVELYN OGOY, MACARIA JUGUETA,
ADELAIDA NONOG, NORMA MABEZA,
JONATHAN PICART and JOSE DIZON, all of
legal ages (sic), Filipinos and residents of
Baguio City, under oath, depose and say:
1. That we are employees of Mr. Peter L. Ng of his Hotel
Supreme situated at No. 416 Magsaysay Ave., Baguio
City;
2. That the said Hotel is separately operated from the Ivy's
Grill and Restaurant;
3. That we are all (8) employees in the hotel and assigned
in each respective shifts;
4. That we have no complaints against the management
of the Hotel Supreme as we are paid accordingly and that
we are treated well.
5. That we are executing this affidavit voluntarily without
any force or intimidation and for the purpose of informing
the authorities concerned and to dispute the alleged
report of the Labor Inspector of the Department of Labor
and Employment conducted on the said establishment on
February 2, 1991.
IN WITNESS WHEREOF, we have hereunto set
our hands this 7th day of May, 1991 at Baguio
City, Philippines.
(Sgd.) (Sgd.) (Sgd.)
SYLVIA IGAMA HERMINIGILDO
AQUINO EVELYN OGOY
(Sgd) (Sgd.) (Sgd.)
MACARIA JUGUETA ADELAIDA
NONOG NORMA MABEZA
(Sgd) (Sgd.)
JONATHAN PICART JOSE DIZON
SUBSCRIBED AND SWORN to before me this
7th day of May, 1991, at Baguio City,
Philippines.
sst. City Prosecutor
 Petitioner signed the affidavit but refused to go to the complainant for qualified theft and perjury. The
City Prosecutor's Office to swear to the veracity and fiscal's office finding a prima facieevidence that
contents of the affidavit as instructed by complainant committed the crime of qualified
management. The affidavit was nevertheless submitted theft issued a resolution for its filing in court but
on the same day to the Regional Office of the Department dismissing the charge of perjury (Exhibit '4' for
of Labor and Employment in Baguio City. respondent and Exhibit 'B-7' for
complainant). As a consequence, complainant
As gleaned from the affidavit, the same was drawn
was charged in court for the said crime (Exhibit
by management for the sole purpose of refuting findings
'5' for respondent and Exhibit 'B-6' for the
of the Labor Inspector of DOLE (in an inspection of
complainant).
respondent's establishment on February 2, 1991)
apparently adverse to the private respondent.[3] With these pieces of evidence, complainant
committed serious misconduct against her
After she refused to proceed to the City Prosecutor's
employer which is one of the just and valid
Office - on the same day the affidavit was submitted to the
grounds for an employer to terminate an
Cordillera Regional Office of DOLE - petitioner avers that
employee (Article 282 of the Labor Code as
she was ordered by the hotel management to turn over
amended).[9]
the keys to her living quarters and to remove her
belongings from the hotel premises.[4] According to her, On April 28, 1994, respondent NLRC promulgated its
respondent strongly chided her for refusing to proceed to assailed Resolution[10] affirming the Labor Arbiter's
the City Prosecutor's Office to attest to the affidavit.[5] She decision. The resolution substantially incorporated the
thereafter reluctantly filed a leave of absence from her job findings of the Labor Arbiter.[11] Unsatisfied, petitioner
which was denied by management. When she attempted instituted the instant special civil action
to return to work on May 10, 1991, the hotel's cashier, for certiorari under Rule 65 of the Rules of Court on the
Margarita Choy, informed her that she should not report following grounds:[12]
to work and, instead, continue with her unofficial leave of
1. WITH ALL DUE RESPECT, THE
absence. Consequently, on May 13, 1991, three days
HONORABLE NATIONAL LABOR
after her attempt to return to work, petitioner filed a
RELATIONS COMMISSION
complaint for illegal dismissal before the Arbitration
COMMITTED A PATENT AND
Branch of the National Labor Relations Commission -
PALPABLE ERROR AMOUNTING
CAR Baguio City. In addition to her complaint for illegal
TO GRAVE ABUSE OF
dismissal, she alleged underpayment of wages, non-
DISCRETION IN ITS FAILURE TO
payment of holiday pay, service incentive leave pay, 13th
CONSIDER THAT THE ALLEGED
month pay, night differential and other benefits. The
LOSS OF CONFIDENCE IS A
complaint was docketed as NLRC Case No. RAB-CAR-
FALSE CAUSE AND AN
05-0198-91 and assigned to Labor Arbiter Felipe P. Pati.
AFTERTHOUGHT ON THE PART
Responding to the allegations made in support of OF THE RESPONDENT-
petitioner's complaint for illegal dismissal, private EMPLOYER TO JUSTIFY, ALBEIT
respondent Peter Ng alleged before Labor Arbiter Pati ILLEGALLY, THE DISMISSAL OF
that petitioner "surreptitiously left (her job) without notice THE COMPLAINANT FROM HER
to the management"[6] and that she actually abandoned EMPLOYMENT;
her work. He maintained that there was no basis for the
2. WITH ALL DUE RESPECT, THE
money claims for underpayment and other benefits as
HONORABLE NATIONAL LABOR
these were paid in the form of facilities to petitioner and
RELATIONS COMMISSION
the hotel's other employees.[7] Pointing to the Affidavit of
COMMITTED A PATENT AND
May 7, 1991, the private respondent asserted that his
PALPABLE ERROR AMOUNTING
employees actually have no problems with management.
TO GRAVE ABUSE OF
In a supplemental answer submitted eleven (11) months
DISCRETION IN ADOPTING THE
after the original complaint for illegal dismissal was filed,
RULING OF THE LABOR ARBITER
private respondent raised a new ground, loss of
THAT THERE WAS NO
confidence, which was supported by a criminal complaint
UNDERPAYMENT OF WAGES
for Qualified Theft he filed before the prosecutor's office
AND BENEFITS ON THE BASIS OF
of the City of Baguio against petitioner on July 4, 1991.[8]
EXHIBIT "8" (AN UNDATED
On May 14, 1993, Labor Arbiter Pati rendered a SUMMARY OF COMPUTATION
decision dismissing petitioner's complaint on the ground PREPARED BY ALLEGEDLY BY
of loss of confidence. His disquisitions in support of his RESPONDENT'S EXTERNAL
conclusion read as follows: ACCOUNTANT) WHICH IS
TOTALLY INADMISSIBLE AS AN
It appears from the evidence of respondent that
EVIDENCE TO PROVE PAYMENT
complainant carted away or stole one (1)
OF WAGES AND BENEFITS;
blanket, 1 piece bedsheet, 1 piece thermos, 2
pieces towel (Exhibits '9', '9-A,' '9-B,' '9-C' and 3. WITH ALL DUE RESPECT, THE
'10' pages 12-14 TSN, December 1, 1992). HONORABLE NATIONAL LABOR
RELATIONS COMMISSION
In fact, this was the reason why respondent
COMMITTED A PATENT AND
Peter Ng lodged a criminal complaint against
 PALPABLE ERROR AMOUNTING
TO GRAVE ABUSE OF
DISCRETION IN FAILING TO
CONSIDER THE EVIDENCE
ADDUCED BEFORE THE LABOR
ARBITER AS CONSTITUTING
UNFAIR LABOR PRACTICE
COMMITTED BY THE
RESPONDENT.
The Solicitor General, in a Manifestation in lieu of
Comment dated August 8, 1995 rejects private
respondent's principal claims and defenses and urges this
Court to set aside the public respondent's assailed
resolution.[13]
We agree.
It is settled that in termination cases the employer
bears the burden of proof to show that the dismissal is for
just cause, the failure of which would mean that the
dismissal is not justified and the employee is entitled to
reinstatement.[14]
In the case at bar, the private respondent initially
claimed that petitioner abandoned her job when she failed
to return to work on May 8, 1991. Additionally, in order to
strengthen his contention that there existed sufficient
cause for the termination of petitioner, he belatedly
included a complaint for loss of confidence, supporting
this with charges that petitioner had stolen a blanket, a
bedsheet and two towels from the hotel.[15] Appended to
his last complaint was a suit for qualified theft filed with
the Baguio City prosecutor's office.
From the evidence on record, it is crystal clear that
the circumstances upon which private respondent
anchored his claim that petitioner "abandoned" her job
were not enough to constitute just cause to sanction the
termination of her services under Article 283 of the Labor
Code. For abandonment to arise, there must be
concurrence of two things: 1) lack of intention to
work;[16] and 2) the presence of overt acts signifying the
employee's intention not to work.[17]
In the instant case, respondent does not dispute the
fact that petitioner tried to file a leave of absence when
she learned that the hotel management was displeased
with her refusal to attest to the affidavit. The fact that she
made this attempt clearly indicates not an intention to
abandon but an intention to return to work after the period
of her leave of absence, had it been granted, shall have
expired.
Furthermore, while absence from work for a
prolonged period may suggest abandonment in certain
instances, mere absence of one or two days would not be
enough to sustain such a claim. The overt act (absence)
ought to unerringly point to the fact that the employee has
no intention to return to work,[18] which is patently not the
case here. In fact, several days after she had been
advised to take an informal leave, petitioner tried to
resume working with the hotel, to no avail. It was only
after she had been repeatedly rebuffed that she filed a
case for illegal dismissal. These acts militate against the
private respondent's claim that petitioner abandoned her
job. As the Solicitor General in his manifestation
observed:
Petitioner's absence on that day should not be
construed as abandonment of her job. She did
not report because the cashier told her not to
report anymore, and that private respondent Ng
did not want to see her in the hotel premises. But
two days later or on the 10th of May, after
realizing that she had to clarify her employment
status, she again reported for work. However,
she was prevented from working by private
respondents.[19]
We now come to the second cause raised by private
respondent to support his contention that petitioner was
validly dismissed from her job.
Loss of confidence as a just cause for dismissal was
never intended to provide employers with a blank check
for terminating their employees. Such a vague, all-
encompassing pretext as loss of confidence, if
unqualifiedly given the seal of approval by this Court,
could readily reduce to barren form the words of the
constitutional guarantee of security of tenure. Having this
in mind, loss of confidence should ideally apply only to
cases involving employees occupying positions of trust
and confidence or to those situations where the employee
is routinely charged with the care and custody of the
employer's money or property. To the first class belong
managerial employees, i.e., those vested with the powers
or prerogatives to lay down management policies and/or
to hire, transfer, suspend, lay-off, recall, discharge, assign
or discipline employees or effectively recommend such
managerial actions; and to the second class belong
cashiers, auditors, property custodians, etc., or those
who, in the normal and routine exercise of their functions,
regularly handle significant amounts of money or
property. Evidently, an ordinary chambermaid who has to
sign out for linen and other hotel property from the
property custodian each day and who has to account for
each and every towel or bedsheet utilized by the hotel's
guests at the end of her shift would not fall under any of
these two classes of employees for which loss of
confidence, if ably supported by evidence, would normally
apply. Illustrating this distinction, this Court, in Marina
Port Services, Inc. vs. NLRC,[20] has stated that:
To be sure, every employee must enjoy some
degree of trust and confidence from the
employer as that is one reason why he was
employed in the first place. One certainly does
not employ a person he distrusts. Indeed, even
the lowly janitor must enjoy that trust and
confidence in some measure if only because he
is the one who opens the office in the morning
and closes it at night and in this sense is
entrusted with the care or protection of the
employer's property. The keys he holds are the
symbol of that trust and confidence.
By the same token, the security guard must also
be considered as enjoying the trust and
confidence of his employer, whose property he
is safeguarding. Like the janitor, he has access
to this property. He too, is charged with its care
and protection.
Notably, however, and like the janitor again, he
is entrusted only with the physical task of
 protecting that property. The employer's trust
and confidence in him is limited to that
ministerial function. He is not entrusted, in the
Labor Arbiter's words, 'with the duties of
safekeeping and safeguarding company
policies, management instructions, and
company secrets such as operation
devices.' He is not privy to these confidential
matters, which are shared only in the higher
echelons of management. It is the persons on
such levels who, because they discharge these
sensitive duties, may be considered holding
positions of trust and confidence. The security
guard does not belong in such category.[21]
More importantly, we have repeatedly held that loss
of confidence should not be simulated in order to justify
what would otherwise be, under the provisions of law, an
illegal dismissal. "It should not be used as a subterfuge
for causes which are illegal, improper and unjustified. It
must be genuine, not a mere afterthought to justify an
earlier action taken in bad faith."[22]
In the case at bar, the suspicious delay in private
respondent's filing of qualified theft charges against
petitioner long after the latter exposed the hotel's scheme
(to avoid its obligations as employer under the Labor
Code) by her act of filing illegal dismissal charges against
the private respondent would hardly warrant serious
consideration of loss of confidence as a valid ground for
dismissal. Notably, the Solicitor General has himself
taken a position opposite the public respondent and has
observed that:
If petitioner had really committed
the acts charged against her by private
respondents (stealing supplies of respondent
hotel), private respondents should have
confronted her before dismissing her on that
ground. Private respondents did not do so. In
fact, private respondent Ng did not raise the
matter when petitioner went to see him on May
9, 1991, and handed him her application for
leave. It took private respondents 52 days or up
to July 4, 1991 before finally deciding to file a
criminal complaint against petitioner, in an
obvious attempt to build a case against her.
The manipulations of private respondents
should not be countenanced.[23]
Clearly, the efforts to justify petitioner's dismissal - on
top of the private respondent's scheme of inducing his
employees to sign an affidavit absolving him from
possible violations of the Labor Code - taints with evident
bad faith and deliberate malice petitioner's summary
termination from employment.
Having said this, we turn to the important question of
whether or not the dismissal by the private respondent of
petitioner constitutes an unfair labor practice.
The answer in this case must inevitably be in the
affirmative.
The pivotal question in any case where unfair labor
practice on the part of the employer is alleged is whether
or not the employer has exerted pressure, in the form of
restraint, interference or coercion, against his employee's
right to institute concerted action for better terms and
conditions of employment. Without doubt, the act of
compelling employees to sign an instrument indicating
that the employer observed labor standards provisions of
law when he might have not, together with the act of
terminating or coercing those who refuse to cooperate
with the employer's scheme constitutes unfair labor
practice. The first act clearly preempts the right of the
hotel's workers to seek better terms and conditions of
employment through concerted action.
We agree with the Solicitor General's observation in
his manifestation that "[t]his actuation... is analogous to
the situation envisaged in paragraph (f) of Article 248 of
the Labor Code"[24] which distinctly makes it an unfair
labor practice "to dismiss, discharge or otherwise
prejudice or discriminate against an employee for having
given or being about to give testimony"[25] under the Labor
Code. For in not giving positive testimony in favor of her
employer, petitioner had reserved not only her right to
dispute the claim and proffer evidence in support thereof
but also to work for better terms and conditions of
employment.
For refusing to cooperate with the private
respondent's scheme, petitioner was obviously held up as
an example to all of the hotel's employees, that they could
only cause trouble to management at great personal
inconvenience. Implicit in the act of petitioner's
termination and the subsequent filing of charges against
her was the warning that they would not only be deprived
of their means of livelihood, but also possibly, their
personal liberty.
This Court does not normally overturn findings and
conclusions of quasi-judicial agencies when the same are
ably supported by the evidence on record. However,
where such conclusions are based on a misperception of
facts or where they patently fly in the face of reason and
logic, we will not hesitate to set aside those
conclusions.Going into the issue of petitioner's money
claims, we find one more salient reason in this case to set
things right: the labor arbiter's evaluation of the money
claims in this case incredibly ignores existing law and
jurisprudence on the matter. Its blatant one-sidedness
simply raises the suspicion that something more than the
facts, the law and jurisprudence may have influenced the
decision at the level of the Arbiter.
Labor Arbiter Pati accepted hook, line and sinker the
private respondent's bare claim that the reason the
monetary benefits received by petitioner between 1981 to
1987 were less than minimum wage was because
petitioner did not factor in the meals, lodging, electric
consumption and water she received during the period in
her computations.[26] Granting that meals and lodging
were provided and indeed constituted facilities, such
facilities could not be deducted without the employer
complying first with certain legal requirements. Without
satisfying these requirements, the employer simply
cannot deduct the value from the employee's
wages. First, proof must be shown that such facilities are
customarily furnished by the trade. Second, the provision
of deductible facilities must be voluntarily accepted in
writing by the employee.Finally, facilities must be charged
at fair and reasonable value.[27]
 These requirements were not met in the instant case.
Private respondent "failed to present any company policy
or guideline to show that the meal and lodging . . . (are)
part of the salary;"[28] he failed to provide proof of the
employee's written authorization; and, he failed to show
how he arrived at the valuations.[29]
Curiously, in the case at bench, the only valuations
relied upon by the labor arbiter in his decision were figures
furnished by the private respondent's own accountant,
without corroborative evidence. On the pretext that
records prior to the July 16, 1990 earthquake were lost or
destroyed, respondent failed to produce payroll records,
receipts and other relevant documents, where he could
have, as has been pointed out in the Solicitor General's
manifestation, "secured certified copies thereof from the
nearest regional office of the Department of Labor, the
SSS or the BIR."[30]
More significantly, the food and lodging, or the
electricity and water consumed by the petitioner were not
facilities but supplements. A benefit or privilege granted
to an employee for the convenience of the employer is not
a facility. The criterion in making a distinction between the
two not so much lies in the kind (food, lodging) but the
purpose.[31] Considering, therefore, that hotel workers are
required to work different shifts and are expected to be
available at various odd hours, their ready availability is a
necessary matter in the operations of a small hotel, such
as the private respondent's hotel.
It is therefore evident that petitioner is entitled to the
payment of the deficiency in her wages equivalent to
the full wage applicable from May 13, 1988 up to the date
of her illegal dismissal.
Additionally, petitioner is entitled to payment of
service incentive leave pay, emergency cost of living
allowance, night differential pay, and 13th month pay for
the periods alleged by the petitioner as the private
respondent has never been able to adduce proof that
petitioner was paid the aforestated benefits.
However, the claims covering the period of October
1987 up to the time of filing the case on May 13, 1988 are
barred by prescription as P.D. 442 (as amended) and its
implementing rules limit all money claims arising out of
employer-employee relationship to three (3) years from
the time the cause of action accrues.[32]
We depart from the settled rule that an employee
who is unjustly dismissed from work normally should be
reinstated without loss of seniority rights and other
privileges.Owing to the strained relations between
petitioner and private respondent, allowing the former to
return to her job would only subject her to possible
harassment and future embarrassment. In the instant
case, separation pay equivalent to one month's salary for
every year of continuous service with the private
respondent would be proper, starting with her job at the
Belfront Hotel.
In addition to separation pay, backwages are in
order. Pursuant to R.A. 6715 and our decision in Osmalik
Bustamante, et al. vs. National Labor Relations
Commission,[33] petitioner is entitled to full backwages
from the time of her illegal dismissal up to the date of
promulgation of this decision without qualification or
deduction.
Finally, in dismissal cases, the law requires that the
employer must furnish the employee sought to be
terminated from employment with two written notices
before the same may be legally effected. The first is a
written notice containing a statement of the cause(s) for
dismissal; the second is a notice informing the employee
of the employer's decision to terminate him stating the
basis of the dismissal. During the process leading to the
second notice, the employer must give the employee
ample opportunity to be heard and defend himself, with
the assistance of counsel if he so desires.
Given the seriousness of the second cause (qualified
theft) of the petitioner's dismissal, it is noteworthy that the
private respondent never even bothered to inform
petitioner of the charges against her. Neither was
petitioner given the opportunity to explain the loss of the
articles. It was only almost two months after petitioner had
filed a complaint for illegal dismissal, as an afterthought,
that the loss was reported to the police and added as a
supplemental answer to petitioner's complaint. Clearly,
the dismissal of petitioner without the benefit of notice and
hearing prior to her termination violated her constitutional
right to due process. Under the circumstances, an award
of One Thousand Pesos (P1,000.00) on top of payment
of the deficiency in wages and benefits for the period
aforestated would be proper.
WHEREFORE, premises considered, the
RESOLUTION of the National Labor Relations
Commission dated April 24, 1994 is REVERSED and SET
ASIDE, with costs.For clarity, the economic benefits due
the petitioner are hereby summarized as follows:
1) Deficiency wages and the applicable ECOLA
from May 13, 1988 up to the date of petitioner's
illegal dismissal;
2) Service incentive leave pay; night differential
pay and 13th month pay for the same period;
3) Separation pay equal to one month's salary
for every year of petitioner's continuous service
with the private respondent starting with her job
at the Belfront Hotel;
4) Full backwages, without qualification or
deduction, from the date of petitioner's illegal
dismissal up to the date of promulgation of this
decision pursuant to our ruling in
[34]
Bustamante vs. NLRC.
5) P1.000.00.
SO ORDERED.
[G.R. No. 128845. June 1, 2000]
INTERNATIONAL SCHOOL ALLIANCE OF
EDUCATORS (ISAE), petitioner, vs. HON.
LEONARDO A. QUISUMBING in his capacity as the
Secretary of Labor and Employment; HON.
CRESENCIANO B. TRAJANO in his capacity as the
Acting Secretary of Labor and Employment; DR.
BRIAN MACCAULEY in his capacity as the
Superintendent of International School-Manila; and
INTERNATIONAL SCHOOL, INC., respondents.
DECISION
KAPUNAN, J.:
Receiving salaries less than their counterparts hired
abroad, the local-hires of private respondent School,
mostly Filipinos, cry discrimination. We agree. That the
local-hires are paid more than their colleagues in other
schools is, of course, beside the point. The point is that
employees should be given equal pay for work of equal
value. That is a principle long honored in this jurisdiction.
That is a principle that rests on fundamental notions of
justice. That is the principle we uphold today.
Private respondent International School, Inc. (the School,
for short), pursuant to Presidential Decree 732, is a
domestic educational institution established primarily for
dependents of foreign diplomatic personnel and other
temporary residents.[1] To enable the School to continue
carrying out its educational program and improve its
standard of instruction, Section 2(c) of the same decree
authorizes the School to
employ its own teaching and
management personnel selected by it
either locally or abroad, from Philippine
or other nationalities, such personnel
being exempt from otherwise applicable
laws and regulations attending their
employment, except laws that have been
or will be enacted for the protection of
employees.
Accordingly, the School hires both foreign and local
teachers as members of its faculty, classifying the same
into two: (1) foreign-hires and (2) local-hires. The School
employs four tests to determine whether a faculty member
should be classified as a foreign-hire or a local hire:
a.....What is one's domicile?
b.....Where is one's home economy?
c.....To which country does one owe
economic allegiance?
d.....Was the individual hired abroad
specifically to work in the School and was
the School responsible for bringing that
individual to the Philippines?[2]
Should the answer to any of these queries point to the
Philippines, the faculty member is classified as a local
hire; otherwise, he or she is deemed a foreign-hire.
The School grants foreign-hires certain benefits not
accorded local-hires. These include housing,
transportation, shipping costs, taxes, and home leave
travel allowance. Foreign-hires are also paid a salary rate
twenty-five percent (25%) more than local-hires. The
School justifies the difference on two "significant
economic disadvantages" foreign-hires have to endure,
namely: (a) the "dislocation factor" and (b) limited tenure.
The School explains:
A foreign-hire would necessarily have to
uproot himself from his home country,
leave his family and friends, and take the
risk of deviating from a promising career
path-all for the purpose of pursuing his
profession as an educator, but this time
in a foreign land. The new foreign hire is
faced with economic realities: decent
abode for oneself and/or for one's family,
effective means of transportation,
allowance for the education of one's
children, adequate insurance against
illness and death, and of course the
primary benefit of a basic
salary/retirement compensation.
Because of a limited tenure, the foreign
hire is confronted again with the same
economic reality after his term: that he
will eventually and inevitably return to his
home country where he will have to
confront the uncertainty of obtaining
suitable employment after a long period
in a foreign land.
The compensation scheme is simply the
School's adaptive measure to remain
competitive on an international level in
terms of attracting competent
professionals in the field of international
education.[3]
When negotiations for a new collective bargaining
agreement were held on June 1995, petitioner
International School Alliance of Educators, "a legitimate
labor union and the collective bargaining representative
of all faculty members"[4] of the School, contested the
difference in salary rates between foreign and local-hires.
This issue, as well as the question of whether foreign-
hires should be included in the appropriate bargaining
unit, eventually caused a deadlock between the parties.
On September 7, 1995, petitioner filed a notice of strike.
The failure of the National Conciliation and Mediation
Board to bring the parties to a compromise prompted the
Department of Labor and Employment (DOLE) to assume
jurisdiction over the dispute. On June 10, 1996, the DOLE
Acting Secretary, Crescenciano B. Trajano, issued an
Order resolving the parity and representation issues in
favor of the School. Then DOLE Secretary Leonardo A.
Quisumbing subsequently denied petitioner's motion for
reconsideration in an Order dated March 19, 1997.
Petitioner now seeks relief in this Court.
Petitioner claims that the point-of-hire classification
employed by the School is discriminatory to Filipinos and
that the grant of higher salaries to foreign-hires
constitutes racial discrimination.
The School disputes these claims and gives a breakdown
of its faculty members, numbering 38 in all, with
nationalities other than Filipino, who have been hired
locally and classified as local hires.[5]The Acting Secretary
of Labor found that these non-Filipino local-hires received
the same benefits as the Filipino local-hires:
The compensation package given to local-hires has been
shown to apply to all, regardless of race. Truth to tell,
there are foreigners who have been hired locally and who
are paid equally as Filipino local hires.[6]
The Acting Secretary upheld the point-of-hire
classification for the distinction in salary rates:
The principle "equal pay for equal work"
does not find application in the present
case. The international character of the
School requires the hiring of foreign
personnel to deal with different
nationalities and different cultures,
among the student population.
We also take cognizance of the existence
of a system of salaries and benefits
accorded to foreign hired personnel
which system is universally recognized.
We agree that certain amenities have to
be provided to these people in order to
entice them to render their services in the
Philippines and in the process remain
competitive in the international market.
Furthermore, we took note of the fact that
foreign hires have limited contract of
employment unlike the local hires who
enjoy security of tenure. To apply parity
therefore, in wages and other benefits
would also require parity in other terms
and conditions of employment which
include the employment contract.
A perusal of the parties' 1992-1995 CBA
points us to the conditions and provisions
for salary and professional compensation
wherein the parties agree as follows:
All members of the
bargaining unit shall be
compensated only in
accordance with
Appendix C hereof
provided that the
Superintendent of the
School has the
discretion to recruit and
hire expatriate teachers
from abroad, under
terms and conditions
that are consistent with
accepted international
practice.
Appendix C of said CBA further provides:
The new salary
schedule is deemed at
equity with the Overseas
Recruited Staff (OSRS)
salary schedule. The
25% differential is
reflective of the agreed
value of system
displacement and
contracted status of the
OSRS as differentiated
from the tenured status
of Locally Recruited
Staff (LRS).
To our mind, these provisions
demonstrate the parties' recognition of
the difference in the status of two types
of employees, hence, the difference in
their salaries.
The Union cannot also invoke the equal
protection clause to justify its claim of
parity. It is an established principle of
constitutional law that the guarantee of
equal protection of the laws is not
violated by legislation or private
covenants based on reasonable
classification. A classification is
reasonable if it is based on substantial
distinctions and apply to all members of
the same class. Verily, there is a
substantial distinction between foreign
hires and local hires, the former enjoying
only a limited tenure, having no amenities
of their own in the Philippines and have
to be given a good compensation
package in order to attract them to join
the teaching faculty of the School.[7]
We cannot agree.
That public policy abhors inequality and discrimination is
beyond contention. Our Constitution and laws reflect the
policy against these evils. The Constitution[8] in the Article
on Social Justice and Human Rights exhorts Congress to
"give highest priority to the enactment of measures that
protect and enhance the right of all people to human
dignity, reduce social, economic, and political
inequalities." The very broad Article 19 of the Civil Code
requires every person, "in the exercise of his rights and in
the performance of his duties, [to] act with justice, give
everyone his due, and observe honesty and good faith."
International law, which springs from general principles of
law,[9] likewise proscribes discrimination. General
principles of law include principles of equity, [10] i.e., the
general principles of fairness and justice, based on the
test of what is reasonable.[11] The Universal Declaration of
Human Rights,[12] the International Covenant on
Economic, Social, and Cultural Rights,[13] the International
Convention on the Elimination of All Forms of Racial
Discrimination,[14] the Convention against Discrimination
in Education,[15] the Convention (No. 111) Concerning
Discrimination in Respect of Employment and
Occupation[16] - all embody the general principle against
discrimination, the very antithesis of fairness and justice.
The Philippines, through its Constitution, has
incorporated this principle as part of its national laws.
In the workplace, where the relations between capital and
labor are often skewed in favor of capital, inequality and
discrimination by the employer are all the more
reprehensible.
The Constitution[17] specifically provides that labor is
entitled to "humane conditions of work." These conditions
are not restricted to the physical workplace - the factory,
the office or the field - but include as well the manner by
which employers treat their employees.
The Constitution[18] also directs the State to promote
"equality of employment opportunities for all." Similarly,
the Labor Code[19] provides that the State shall "ensure
equal work opportunities regardless of sex, race or
creed." It would be an affront to both the spirit and letter
of these provisions if the State, in spite of its primordial
obligation to promote and ensure equal employment
opportunities, closes its eyes to unequal and
discriminatory terms and conditions of employment.[20]
Discrimination, particularly in terms of wages, is frowned
upon by the Labor Code. Article 135, for example,
prohibits and penalizes[21] the payment of lesser
compensation to a female employee as against a male
employee for work of equal value. Article 248 declares it
an unfair labor practice for an employer to discriminate in
regard to wages in order to encourage or discourage
membership in any labor organization.
Notably, the International Covenant on Economic, Social,
and Cultural Rights, supra, in Article 7 thereof, provides:
The States Parties to the present
Covenant recognize the right of everyone
to the enjoyment of just and favourable
conditions of work, which ensure, in
particular:
a.....Remuneration which provides all
workers, as a minimum, with:
i.....Fair wages and
equal remuneration for
work of equal value
without distinction of any
kind, in particular
women being
guaranteed conditions
of work not inferior to
those enjoyed by men,
with equal pay for equal
work;
x x x.
The foregoing provisions impregnably institutionalize in
this jurisdiction the long honored legal truism of "equal pay
for equal work." Persons who work with substantially
equal qualifications, skill, effort and responsibility, under
similar conditions, should be paid similar salaries.[22] This
rule applies to the School, its "international character"
notwithstanding.
The School contends that petitioner has not adduced
evidence that local-hires perform work equal to that of
foreign-hires.[23] The Court finds this argument a little
cavalier. If an employer accords employees the same
position and rank, the presumption is that these
employees perform equal work. This presumption is
borne by logic and human experience. If the employer
pays one employee less than the rest, it is not for that
employee to explain why he receives less or why the
others receive more. That would be adding insult to injury.
The employer has discriminated against that employee; it
is for the employer to explain why the employee is treated
unfairly.
The employer in this case has failed to discharge this
burden. There is no evidence here that foreign-hires
perform 25% more efficiently or effectively than the local-
hires. Both groups have similar functions and
responsibilities, which they perform under similar working
conditions.
The School cannot invoke the need to entice foreign-hires
to leave their domicile to rationalize the distinction in
salary rates without violating the principle of equal work
for equal pay.
"Salary" is defined in Black's Law Dictionary (5th ed.) as
"a reward or recompense for services performed."
Similarly, the Philippine Legal Encyclopedia states that
"salary" is the "[c]onsideration paid at regular intervals for
the rendering of services." In Songco v. National Labor
Relations Commission,[24] we said that:
"salary" means a recompense or
consideration made to a person for his
pains or industry in another man's
business. Whether it be derived from
"salarium," or more fancifully from "sal,"
the pay of the Roman soldier, it carries
with it the fundamental idea of
compensation for services
rendered. (Emphasis supplied.)
While we recognize the need of the School to attract
foreign-hires, salaries should not be used as an
enticement to the prejudice of local-hires. The local-hires
perform the same services as foreign-hires and they
ought to be paid the same salaries as the latter. For the
same reason, the "dislocation factor" and the foreign-
hires' limited tenure also cannot serve as valid bases for
the distinction in salary rates. The dislocation factor and
limited tenure affecting foreign-hires are adequately
compensated by certain benefits accorded them which
are not enjoyed by local-hires, such as housing,
transportation, shipping costs, taxes and home leave
travel allowances.
The Constitution enjoins the State to "protect the rights of
workers and promote their welfare,"[25] "to afford labor full
protection."[26] The State, therefore, has the right and duty
to regulate the relations between labor and
capital.[27] These relations are not merely contractual but
are so impressed with public interest that labor contracts,
collective bargaining agreements included, must yield to
the common good.[28] Should such contracts contain
stipulations that are contrary to public policy, courts will
not hesitate to strike down these stipulations.
In this case, we find the point-of-hire classification
employed by respondent School to justify the distinction
in the salary rates of foreign-hires and local hires to be an
invalid classification. There is no reasonable distinction
between the services rendered by foreign-hires and local-
hires. The practice of the School of according higher
salaries to foreign-hires contravenes public policy and,
certainly, does not deserve the sympathy of this Court.
We agree, however, that foreign-hires do not belong to
the same bargaining unit as the local-hires.
A bargaining unit is "a group of employees of a given
employer, comprised of all or less than all of the entire
body of employees, consistent with equity to the employer
indicate to be the best suited to serve the reciprocal rights
and duties of the parties under the collective bargaining
provisions of the law."[29] The factors in determining the
appropriate collective bargaining unit are (1) the will of the
employees (Globe Doctrine); (2) affinity and unity of the
employees' interest, such as substantial similarity of work
and duties, or similarity of compensation and working
conditions (Substantial Mutual Interests Rule); (3) prior
collective bargaining history; and (4) similarity of
employment status.[30] The basic test of an asserted
bargaining unit's acceptability is whether or not it is
fundamentally the combination which will best assure to
all employees the exercise of their collective bargaining
rights.[31]
It does not appear that foreign-hires have indicated their
intention to be grouped together with local-hires for
purposes of collective bargaining. The collective
bargaining history in the School also shows that these
groups were always treated separately. Foreign-hires
have limited tenure; local-hires enjoy security of tenure.
Although foreign-hires perform similar functions under the
same working conditions as the local-hires, foreign-hires
are accorded certain benefits not granted to local-hires.
These benefits, such as housing, transportation, shipping
costs, taxes, and home leave travel allowance, are
reasonably related to their status as foreign-hires, and
justify the exclusion of the former from the latter. To
include foreign-hires in a bargaining unit with local-hires
would not assure either group the exercise of their
respective collective bargaining rights.
WHEREFORE, the petition is GIVEN DUE COURSE. The
petition is hereby GRANTED IN PART. The Orders of the
Secretary of Labor and Employment dated June 10, 1996
and March 19, 1997, are hereby REVERSED and SET
ASIDE insofar as they uphold the practice of respondent
School of according foreign-hires higher salaries than
local-hires.
SO ORDERED.
Fuentes vs NLRC
BELLOSILLO, J.:
The State is bound under the Constitution to afford
full protection to labor and when conflicting interests of
labor and capital are to be weighed on the scales of social
justice the heavier influence of the latter should be
counterbalanced with the sympathy and compassion the
law accords the less privileged workingman. This is only
fair if the worker is to be given the opportunity and the
right to assert and defend his cause not as a subordinate
but as part of management with which he can negotiate
on even plane. Thus labor is not a mere employee of
capital but its active and equal partner.[1]
Petitioners, numbering seventy-five (75) in all, seek
to set aside the decision of respondent National Labor
Relations Commission dated 27 November 1992
reversing that of the Labor Arbiter which granted their
claims, for having been rendered with grave abuse of
discretion amounting to lack or excess of jurisdiction.
Petitioners were regular employees of private
respondent Agusan Plantations, Inc., which was engaged
in the operation of a palm tree plantation in Trento,
Agusan del Sur, since September 1982. Claiming that it
was suffering business losses which resulted in the
decision of the head office in Singapore to undertake
retrenchment measures, private respondent sent notices
of termination to petitioners and the Department of Labor
and Employment (DOLE).
On 31 October 1990 petitioners filed with the DOLE
office in Cagayan de Oro City a complaint for illegal
dismissal with prayer for reinstatement, backwages and
damages against private respondent Agusan Plantation,
Inc., and/or Chang Chee Kong. In their answer
respondents denied the allegations of petitioners and
contended that upon receipt of instructions from the head
office in Singapore to implement retrenchment, private
respondents conducted grievance conferences or
meetings with petitioners' representative labor
organization, the Association of Trade Unions through its
national president Jorge Alegarbes, its local president and
its board of directors. Private respondents also contended
that the 30-day notices of termination were duly sent to
petitioners.
After both parties submitted their position papers
articulating their respective theses, the Labor Arbiter
rendered a decision on 27 May 1992 in favor of petitioners
ordering private respondents to pay the former separation
pay equivalent to fifteen (15) days pay for every year of
service plus salary differentials and attorney's fees.
On appeal by respondents to the National Labor
Relations Commission, the decision of the Labor Arbiter
was reversed on 27 November 1992.
Petitioners elevated their plight to this Court on a
special civil action for certiorari under Rule 65 of the Rules
of Court alleging that respondent NLRC gravely abused
its discretion amounting to lack or excess of jurisdiction in
ruling that petitioners were legally terminated from their
employment. They argued that their dismissal or
retrenchment did not comply with the requirements of Art.
283 of the Labor Code.
 We sustain petitioners. The ruling of the Labor
Arbiter that there was no valid retrenchment is correct.
Article 283 of the Labor Code clearly states:
Art 283. Closure of establishment and reduction of
personnel. The employer may also terminate the
employment of any employee due to the installation of
labor-saving devices, redundancy, retrenchment to
prevent losses or the closing or cessation of operation of
the establishment or undertaking unless the closing is for
the purpose of circumventing the provisions of the title, by
serving a written notice on the workers and the Ministry of
Labor and Employment at least one (1) month before the
intended date thereof. In case of termination due to the
installation of labor-saving devices or redundancy, the
worker affected thereby shall be entitled to a separation
pay equivalent to at least his one (1) month pay or to at
least one (1) month pay for every year of service,
whichever is higher. In case of retrenchment to prevent
losses and in case of closure or cessation of operations
of establishment or undertaking not due to serious
business losses or financial reverses, the separation pay
shall be equivalent to one (1) month pay or at least one-
half (1/2) month pay for every year of service, whichever
is higher. A fraction of at least six (6) months shall be
considered one (1) whole year.
Under Art. 283 therefore retrenchment may be valid
only when the following requisites are met: (a) it is to
prevent losses; (b) written notices were served on the
workers and the Department of Labor and Employment
(DOLE) at least one (1) month before the effective date of
retrenchment; and, (c) separation pay is paid to the
affected workers.
The closure of a business establishment is a ground
for the termination of the services of an employee unless
the closing is for the purpose of circumventing pertinent
provisions of the Labor Code. But while business reverses
can be a just cause for terminating employees, they must
be sufficiently proved by the employer.[2]
In the case before us, private respondents merely
alleged in their answer and position paper that after their
officials from the head office had visited the plantation
respondent manager Chang Chee Kong received a letter
from the head office directing him to proceed immediately
with the termination of redundant workers and staff, and
change the operations to contract system against direct
employment. They also alleged that after five (5) years of
operations, the return of investments of respondent
company was meager; that the coup attempt in August
1987 as well as that of December 1989 aggravated the
floundering financial state of respondent company; that
the financial losses due to lack of capital funding resulted
in the non-payment of long-overdue accounts; that the
untimely cut in the supply of fertilizers and manuring
materials and equipment parts delayed the payment of
salaries and the implementation of weekly job rotations by
the workers. Except for these allegations, private
respondents did not present any other documentary proof
of their alleged losses which could have been easily
proven in the financial statements which unfortunately
were not shown.
There is no question that an employer may reduce
its work force to prevent losses. However, these losses
must be serious, actual and real.[3] Otherwise, this ground
for termination of employment would be susceptible to
abuse by scheming employers who might be merely
feigning losses in their business ventures in order to ease
out employees.[4]
Indeed, private respondents failed to prove their
claim of business losses. What they submitted to the
Labor Arbiter were mere self-serving documents and
allegations. Private respondents never adduced evidence
which would show clearly the extent of losses they
suffered as a result of lack of capital funding, which failure
is fatal to their cause.
As regards the requirement of notices of termination
to the employees, it is undisputed that the Notice of
Retrenchment was submitted to the Department of Labor
and Employment on 12 September 1990.[5] The findings
of both the Labor Arbiter and NLRC show that petitioners
were terminated on the following dates in 1990 after they
received their notices of termination, to wit:
Name of Date of Effectivity
Emp Notice of
loye of Termi
e Termi nation
nation
Culled from the above data, the termination of
petitioners could not have validly taken effect either on 25
or 30 September 1990. The one-month notice of
retrenchment filed with the DOLE and served on the
workers before the intended date thereof is mandatory.
Private respondents failed to comply with this requisite.
The earliest possible date of termination should be 12
October 1990 or one (1) month after notice was sent to
DOLE unless the notice of termination was sent to the
workers later than the notice to DOLE on 12 September
1990, in which case, the date of termination should be at
least one (1) month from the date of notice to the workers.
Petitioners were terminated less than a month after notice
was sent to DOLE and to each of the workers.
We agree with the conclusion of the Labor Arbiter
that the termination of the services of petitioners was
illegal as there was no valid retrenchment. Respondent
NLRC committed grave abuse of discretion in reversing
the findings of the Labor Arbiter and ruling that there was
substantial compliance with the law. This Court firmly
holds that measures should be strictly implemented to
ensure that such constitutional mandate on protection to
labor is not rendered meaningless by an erroneous
interpretation of applicable laws.
We uphold the monetary award of the Labor Arbiter
for: (a) the balance of the separation pay benefits of
petitioners equivalent to fifteen (15) days for every year of
service after finding that reinstatement is no longer
feasible under the circumstances, and (b) the salary
differentials for complainants who were relieved during
the pendency of the case before the Labor Arbiter and full
back wages for the rest of the complainants. This is in
accord with Art. 279 of the Labor Code as amended by
R.A. 6715 under which petitioners who were unjustly
dismissed from work shall be entitled to full back wages
inclusive of allowances and other benefits or their
monetary equivalent computed from the time their
compensation was withheld up to the date of this decision.
WHEREFORE, the Petition is GRANTED. The
decision of the Labor Arbiter of 27 March 1992 granting
petitioners their claim for the balance of their separation
pay benefits equivalent to fifteen (15) days for every year
of service, and salary differentials for complainants who
were relieved during the pendency of the case before the
Labor Arbiter, and full back wages for the rest of the
complainants is REINSTATED. Consequently, the
decision of the National Labor Relations Commission
dated 27 September 1992 is REVERSED and SET
ASIDE.
SO ORDERED.
DELFIN GARCIA, doing business under the name
NAPCO-LUZMART, Inc., petitioners, vs. NATIONAL
LABOR RELATIONS COMMISSION and CARLITO
LACSON, respondents.
DECISION
GONZAGA-REYES, J.:
Before us is a Petition for Certiorari under Rule 65 of
the Rules of Court to annul and set aside the decision of
the National Labor Relations Commission[1] in NLRC CA
No. L-001268 dated April 12, 1994 which affirmed the
decision of the Sub-Regional Arbitration Branch No. I in
Dagupan City finding that the private respondent Carlito
Lacson was constructively dismissed by the petitioner
Delfin Garcia doing business under the name NAPCO-
LUZMART, Inc. and awarding respondent backwages
and separation pay.
The following facts as adopted by the National Labor
Relations Commission (NLRC) are uncontroverted:
Complainant Carlito Lacson was employed on March 5,
1987 as boiler operator technician by Northwest Agro-
Marine Products Corporation (NAPCO). On December
12, 1990 respondent Luzmart, Inc., acquired NAPCO in a
foreclosure sale. Both companies were managed by
respondent Delfin Garcia.
On January 28, 1993, there was a mauling incident which
involved the complainant and Julius Z. Viray, his
immediate supervisor and allegedly a friend and
compadre of respondent Garcia.As complainant suffered
injuries as a result thereof he reported the matter to police
authorities and he sought treatment at the Teofilo Sison
Memorial Provincial Hospital. Both the complainant and
Viray were asked to explain their sides. After the
submission of the written explanations, Delfin Garcia
suspended both of them from work for a period of one
month effective April 15, 1993. In the same suspension
order, complainant was further directed to explain in
writing why he should not be dealt with disciplinary action
or terminated for his continued absences from February
15, 1993 up to the date of the memorandum
order. Complainant filed a complaint for illegal dismissal
and other monetary claims but the same was dismissed
without prejudice. On September 1, 1993, the
complainant refiled this case.[2]
The Labor Arbiter[3] ruled in favor of the respondent
Carlito Lacson (LACSON). Petitioner NAPCO-Luzmart
(LUZMART) appealed to the NLRC which affirmed the
decision of the Labor Arbiter after finding that the Labor
Arbiter did not commit any reversible error. The NLRC
however deleted the award of attorneys fees in favor of
LACSON. Its decision, which adopted the conclusions of
the Labor Arbiter, reads:
In finding for the complainant, the Labor Arbiter ruled:
The issues to be resolved in this case are: (1) whether or
not the complainant was dismissed from his employment;
(2) whether or not he is entitled to his claim for overtime
services, separation pay, 13th month pay, premium pay
for working on holidays and rest days, separation pay,
13th month pay and service incentive leave pay; and, (3)
whether or not the complainant is considered an
employee of the respondents since March 1987.
The first issue: Respondent Delfin Garcia insists that he
did not dismiss the complainant and that he can return to
his work after his one month suspension, (affidavit of
respondent Garcia, marked as Annex H of his position
paper). On the other hand, complainant Lacson maintains
that he reported for work several times but respondent
Garcia refused to take him back and that the former told
him to look for another job.
Let us scrutinize the evidence. The incident involving the
complainant and Julius Viray, also an employee of the
respondents, wherein Viray allegedly mauled the
complainant, happened on January 28, 1993. On
February 1993, the complainant submitted his
handwritten explanation blaming Viray as the
aggressor. According to the complainant, Viray was drunk
at the time of the incident and although he avoided Viray,
the latter armed with a lead pipe, followed him and wanted
to kill him (Annex C complainant). Viray also submitted his
handwritten explanation on February 2, 1993 (see Annex
E-1 of respondents position paper). Viray only stated that
a heated argument transpired. On March 31, 1993,
respondent Garcia issued a Memorandum suspending
both the complainant and Viray for one (1) month effective
April 15, 1993 and at the same time required the
complainant to explain why he should not be terminated
for being absent from Feb. 15, 1993, (Annex F,
respondents). The question is, why did it take respondent
Delfin Garcia one (1) month or more to decide and issue
an order suspending the complainant and Viray? Why did
he not suspend the two immediately after the
incident? This leads credence to the complainants
allegation that he reported for work after submitting his
explanation but respondent Garcia refused to admit him
back and told him to take a vacation or to look for another
work, hence he decided to file a complaint against him on
Feb. 4, 1993, which was later dismissed without
prejudice, the reason for the dismissal of which was not
explained to us by the complainant. Moreover, it is true
that the complainant failed to report for work since Feb.
15, 1993, why did respondent Garcia not issue an order
or memorandum after the complainant failed to report for
a number of days and directing the complainant to report
immediately otherwise his employment will be
terminated? We also agree with the complainants
argument that the respondents should not have asked
him to explain his alleged failure to report for work since
Feb. 15, 1993, because he has already filed a complaint
against Garcia earlier.
The second issue; Annexes G, G-1 to G-14 of the
respondents, which are samples of respondents payroll,
show that whenever the complainant rendered overtime
services, he was paid accordingly. Is he entitled to his
claim for 13th monthpay, service incentive leave pay,
vacation in sick leave pay and separation
pay? Respondents maintain that since the complainant
was employed by them only on February 1, 1991, he has
no right to claim benefits that arose before his
employment with them. That since he was not dismissed
from his employment, he is not also entitled to his claim
for separation pay. (The resolution of this issue will also
resolve the second issue)
Respondents argue that the services of the complainant
with NAPCO since March 1987, cannot be credited or
counted to his length of service with LUZMART because
his subsequent employment with LUZMART is a new
employment as shown in his employment contract (Annex
D respondents) with LUZMART.
In the case of MDII Supervisors and Confidential
Employees Association (FFW) vs. Presidential Assistant
on Legal Affairs, 79 SCRA 40 (1977), the Supreme Court
ruled that:
xxx And there is no law which requires the purchaser to
absorb the employees of the selling corporation.
As there is no such law, the most that the purchasing
company may do, for purposes of public policy and social
justice, is to give preference to the qualified separated
employees of the selling company, who in their judgment
are necessary in the continued operation of the business
establishment. This RCAM did. It required private
respondents to reapply as new employees as a condition
for rehiring subject to the usual probationary status, the
latters past services with the petitioners, transferors not
recognized (San Felipe Neri School of Mandaluyong, Inc.,
et. Al. Vs. NLRC, Roman Catholic Archbishop of Manila
(RCAM), et. al., G.R. No. 78350, Sept. 11, 1991.).
Except for his bare allegation that LUZMART was only
organized by the controlling stockholders of NAPCO to
acquire or gain control of the latter, the complainant did
not present sufficient evidence to prove his allegation,
LUZMART is an entirely new corporation or entity with a
distinct personality from NAPCO, and is not an alter ego
of NAPCO. Therefore, LUZMART is not under obligation
to absorb the workers of NAPCO or to absorb the length
of service earned by its employees.
The respondents are therefore correct in their assertion
that they should not be answerable for the complainants
claim for benefits that may be due him before January 1,
1991.
As we have discussed earlier, the complainant herein was
constructively dismissed from his employment by
respondent Delfin Garcia because of the latters refusal to
admit him back to work inspite of the complainants
insistence to resume his work after he has given his
explanation.
On appeal, respondent contends that the Labor Arbiter
erred in awarding backwages to the complainant from
February 1, 1993 up to the date of the promulgation of the
decision, and in awarding separation pay of one month
pay for every year of service.
We are in full accord with the Labor Arbiters conclusion
that the complainant was constructively dismissed by the
respondent Delfin Garcia when he refused to admit the
complainant despite his insistence to go back to work.
However, we delete the award of attorneys fees as this is
not a case of unlawful withholding of wages.
WHEREFORE, premises considered, the appealed
decision is modified by deleting the award of attorneys
fees. In all other respect, the same is affirmed.
SO ORDERED.[4]
LUZMARTs motion for reconsideration[5] was denied
hence, this petition wherein LUZMART claims that the
NLRC committed grave abuse of discretion in holding that
LACSON was illegally dismissed.
In support of its petition, LUZMART claims that
LACSON was not dismissed but was merely suspended
as shown by the March 31, 1993 memorandum.[6] His
suspension was a consequence of the imposition of
disciplinary measures on him as fighting within the
company premises constitutes serious misconduct and
disorderly behavior. The fact that LUZMART did not
immediately suspend him after the fighting incident does
not establish that he was dismissed from his employment
as there is no law which requires an employer to
immediately rule on any infraction under investigation
after the filing of the explanation of the person under
investigation. Neither is LACSON entitled to backwages
nor separation pay as these are only granted to
employees who have been illegally dismissed from work
and not to employees like LACSON who abandoned his
employment as he failed to report to work from February
15, 1993 to March 31, 1993.[7]
We resolve to affirm the judgment of the NLRC.
LUZMARTs claim that LACSON was merely
suspended and was still employed by LUZMART does not
convince us that LACSON was not dismissed from his
employment. Said claim was a mere afterthought to
preempt or thwart the impending illegal dismissal case
filed by LACSON against LUZMART. As found by the
labor arbiter, LACSONs failure to report to work was due
to LUZMARTs refusal to admit him back. In fact,
LUZMART told him to go on vacation or to look for other
work.[8]
 LACSONs dismissal is clearly established by the
following chronology of events: The mauling incident
occurred on January 28, 1993. LACSON submitted his
written explanation of the event on February 1, 1993. On
February 4, 1993, LACSON attempted to report for work
but LUZMART refused to admit him. On February 11,
1993, LACSON filed an action for illegal dismissal with the
NLRC.[9] On April 13, 1993, LUZMART sent LACSON the
memorandum ordering LACSONs suspension dated on
March 31, 1993. By this time, LUZMART already knew of
the pending illegal dismissal case against it as it was
already directed by the NLRC to submit its position paper
on April 5, 1993. LUZMARTs reliance on the March 31,
1993 memorandum[10] and the February 1-15, 1993
payroll[11] to prove that LACSON was merely suspended
is therefore unavailing. The March 31, 1993
memorandum is at most self-serving; a ploy to cover up
the dismissal of LACSON since this was issued after
LUZMART had knowledge of the illegal dismissal case
filed against it by LACSON on February 11,
1993.Likewise, the veracity of the February 1-15, 1993
payroll that purportedly shows that LACSON was included
in LUZMARTs payroll is of doubtful probative value. First
of all, it does not contain a certification by Charito
Fernandez at its back page, unlike the other
payrolls[12] attached as annexes to LUZMARTs
petition. Secondly, said payroll does not contain the
signatures of the other employees as proof that they
received their salaries for the said period. Given these
circumstances, both documents appear to have been
prepared in contemplation of the pending illegal dismissal
case filed against LUZMART.
The contention that LACSON abandoned his
employment is also without merit. Mere absence or failure
to report for work, after notice to return, is not enough to
amount to such abandonment.[13] For a valid finding of
abandonment, two factors must be present, viz; (1) the
failure to report for work or absence without valid or
justifiable reason; and (2) a clear intention to sever the
employer-employee relationship,[14] with the second
element as the more determinative factor being
manifested by some overt acts.[15] There must be
a concurrence of the intention to abandon and some overt
acts from which an employee may be deduced as having
no more intention to work.[16] Such intent to discontinue
the employment must be shown by clear proof that it was
deliberate and unjustified.[17]
LACSONs absence from work was not without a
valid reason. It was petitioner who did not allow him to
work and in fact told him to go on vacation or to look for
other work. This is tantamount to a constructive dismissal
which is defined as a quitting because continued
employment is rendered impossible, unreasonable or
unlikely; as an offer involving a demotion in rank and
diminution in pay[18] Since LACSON was denied entry into
his workplace, it was impossible for him to return to
work. It would be unjust to allow herein petitioners to claim
as a ground for abandonment a situation which they
themselves had brought about.[19] Moreover, LACSONs
filing of the complaint for illegal dismissal on February 11,
1993, or seven days after his alleged abandonment,
negates said charge. It is highly illogical for an employee
to abandon his employment and thereafter file a complaint
for illegal dismissal.[20]
We also do not agree with LUZMART that LACSON
gave just cause for the imposition of disciplinary
measures upon him. Although fighting within company
premises may constitute serious misconduct under Article
282[21] of the Labor Code and may be a just cause to
terminate ones employment[22], every fight within
company premises in which an employee is involved
would not warrant his dismissal. This is especially true
when the employee concerned did not instigate the fight
and was in fact the victim who was constrained to defend
himself.In the present case, it appears that LACSON was
assaulted by Julius Viray (VIRAY), a co-employee, after
they were questioned about missing diesel fuel. LACSON
attempted to avoid the conflict since VIRAY was
intoxicated but VIRAY followed him and after an
exchange of words, VIRAY punched him while saying
Papatayin Kita (I will kill you). After being punched a
second time, LACSON punched back. He thereafter ran
towards the dressing plant after his companion, a certain
DANNY, told him to run. VIRAY was persistent and
followed LACSON and continued delivering punches at
him. LACSON ran away for a second time but VIRAY still
pursued him and even armed himself with a lead
pipe. LACSON sustained wounds on his head and
forehead due to VIRAYs use of the lead pipe. The
Medico-Legal Certificate[23] issued by the Gov. Teofilo
Sison Memorial Hospital corroborates LACSONs
injuries. Given the above circumstances, it is not difficult
to understand why LACSON had to defend himself.
Even assuming that there was just cause to dismiss
LACSON, strict compliance by the employer with the
demands of both procedural and substantive due process
is a condition sine qua non for the termination to be
declared valid. The law requires that the employer must
furnish the worker sought to be dismissed with two written
notices before termination of employment can be legally
effected:
1. notice which apprises the employee of the
particular acts or omissions for which his
dismissal is sought; and
2. the subsequent notice which informs the
employee of the employers decision to
dismiss him.[24]
It is unclear whether LUZMART complied with the
first required written notice; apparently, LACSON was
able to give his account of the fight. However, even
assuming that LUZMART complied with the first written
notice i.e. the charge against LACSON with fighting within
company premises, the evidence fails to show
compliance with the second notice requirement; to inform
LACSON of the decision to dismiss him. Such failure to
comply with said requirements taints LACSONs dismissal
with illegality.
An illegally dismissed employee is entitled to 1)
either reinstatement or separation pay if reinstatement is
no longer viable, and 2) backwages.[25] In the present
case, LACSON is entitled to be reinstated, as there is no
evidence to show that reinstatement is no longer possible
considering LUZMARTs position in this appeal is that
LACSON was never dismissed but merely
suspended. He is also entitled to backwages computed
from the time of illegal dismissal, in this case on February
4, 1993[26] (not February 1, 1993 as found by the NLRC)
up to the time of actual reinstatement, without qualification
or deduction[27]
WHEREFORE, the assailed decision of the NLRC is
AFFIRMED and the instant petition is hereby DISMISSED
with the MODIFICATION that LUZMART reinstate
LACSON to his former position and pay him backwages
computed from the date of illegal dismissal on February
4, 1993 up to the time of actual reinstatement.
No pronouncement as to costs.
SO ORDERED.
GANDARA MILL SUPPLY and MILAGROS
SY, petitioners, vs. THE NATIONAL LABOR
RELATIONS COMMISSION AND SILVESTRE
GERMANO, respondents.
DECISION
PURISIMA, J.:
At bar is a special civil action for Certiorari under
Rule 65 of the Revised Rules of Court, assailing the
Resolution[1] of the National Labor Relations
Commission[2] (NLRC)promulgated on May 22, 1996,
and NLRC Resolution[3] dated July 23, 1996, denying
petitioners motion for reconsideration in NLRC NCR 00-
02-1653-94.
From the records on hand, it appears that:
Milagros Sy, owner of Gandara Mill Supply, at No.
708 Gandara St., Binondo, Manila, was the respondent in
NLRC Case No. 02-01653-94 instituted by Silvestre
Germano (now the private respondent).
On February 6, 1995, the private respondent,
without notifying his employer, Milagros Sy, did not report
for work until February 11, 1995. Like any expectant
father, he chose to be near his wife who was then about
to deliver. The wife gave birth on February 12,
1995. Upon private respondents request, Milagros Sy
extended some financial assistance to the Germano
couple.
The petition avers inter alia that Gandara Mill Supply
is a small business enterprise with only
two (2) employees, including the herein private
respondent, to do manual work. With inadequate
manpower, the absence of just one worker can spell
untold difficulties in its operations. Matters became even
worse when private respondent, without informing his
employer, was absent for a long time, so much so that the
former incurred the ire of the latter. Two (2) weeks
after, private respondent returned to duty, and to his
surprise, he was met by his employer to personally tell
him that someone had been hired to take his place. He
was advised, however, that he was to be re-admitted in
June 1996.
On February 27, 1995, a case of illegal dismissal
was commenced by the private respondent with the
Department of Labor and Employment.
To buy peace, petitioner offered P5,000.00 but to no
avail. The offer was flatly rejected by private
respondent. When conciliation efforts proved futile, the
Labor Arbiter directed the parties to submit their position
papers on or before April 28, 1995, which deadline was
extended to May 5, 1995. In his Order of May 9, 1995,
Labor Arbiter Facundo L. Leda gavepetitioner a last
opportunity to file/submit their (sic) Position Paper within
seven (7) days from receipt hereof otherwise their (sic)
right to be heard are (sic) deemed waived and this case
will be decided on the basis of the documents on file. [4]
Despite receipt of the aforesaid Order, however,
petitioner still failed to comply therewith, prompting the
Labor Arbiter to hand down a decision on January 29,
1996, disposing, thus:
WHEREFORE, decision is hereby rendered ordering
respondent/s Gandara Mill Supply and/or Milagros Sy to
pay complainant Silvestre Germano the sum of SIXTY
FIVE THOUSAND SIX HUNDRED EIGHTY FIVE PESOS
AND 90/100 (P65,685.90) representing separation pay,
backwages, SLIP and attorneys fee as iscussed and
computed above.
On March 4, 1996, petitioner appealed said decision
to the NLRC. To the appeal, an Opposition was
interposed on March 15, 1996.
On May 22, 1996, the NLRC dismissed petitioners
appeal for failure to post a cash or surety bond.
The appeal was predicated on the submission that
petitioners business is small, on which invoked ground
petitioner sought exemption from posting a bond. Should
its prayer for exemption of a bond be denied, petitioner
asked for at least twenty (20) days to put up such bond.
The petition attacks the July 23, 1996 Resolution of
public respondent, affirming the decision of the Labor
Arbiter dated January 29, 1996. On August 14, 1996, a
Motion for Execution was presented by private
respondent. NLRC entered its judgment on August 26,
1996.
On September 6, 1996, private respondent sent in
an Ex-parte Motion for Execution, which was
granted. The corresponding Writ of Execution issued
on September 13, 1996.
The issues posited for resolution :
FIRST, did the public respondent act with grave
abuse of discretion in dismissing petitioners appeal and in
not giving petitioner a chance to prove that the private
respondent was not illegally dismissed but was merely
suspended for abandoning his job?; and
SECOND, did the public respondent act with grave
abuse of discretion in awarding to the private respondent
the amount of SIXTY-FIVE THOUSAND SIX HUNDRED
EIGHTY-FIVE AND 90/00 (P65,685.90), which amount
petitioner assails as excessive?
To be sure, the petitioner was afforded a chance to
show that the private respondent was not illegally
dismissed. Unfortunately, petitioner failed to discharge its
burden of proof.
 In a long line of cases, the Court has consistently
ruled that, findings of fact by quasi-judicial agencies like
the NLRC are conclusive upon the court in the absence
of proof of grave error in the appreciation of facts.
Petitioners bare allegation that it was denied the right to
be heard is negated by the Labor Arbiters
extension of much leniency to petitioner by allowing the
latter to submit a position paper on April 28, 1995, then on
May 5, 1995, and finally, seven (7) days from receipt of
the Order dated May 9,
1995. Generally, reglementary periods are strictly
observed to the end that orderly administration of
justice be safeguarded. In the case under consideration,
the public respondent had been quite liberal in observing
and enforcing the rules. Consequently, petitioners
protestation of denial of opportunity to be heard is barren
of any factual basis. The principle of laches finds a wide
room for application here. Laches, in a general sense, is
failure or neglect for an unreasonable length of time to do
that which by exercising due diligence could or should
have been done earlier; it is negligence or omission to
assert a right within a reasonable time warranting a
presumption that the party entitled to assert it has either
abandoned or declined to raise it. The doctrine of laches
or stale demands is based upon grounds of public policy
which require for the peace of society, discouragement of
stale claims. And unlike the statute of limitations, it is not
a mere question of time but is principally a question of
inequity or unfairness or permitting a right or claim to be
enforced or asserted. (Tijam v. Sibonghanoy, 23 SCRA
29). So also, in the Order, dated May 9, 1995, respondent
Commission declared in clear and unequivocal terms
that failure to file a position paper is deemed a waiver of
the right to be heard and that decisions will be based on
the position paper submitted. Evidently, for making good
his said Order, the Labor Arbiter cannot be faulted for
acting arbitrarily .
Neither can grave error be ascribed to respondent
NLRC for handing down its decision without petitioners
Position Paper. By its inaction, petitioner was properly
considered to have waived or forfeited the right to refute
private respondents stance. Indeed, petitioner cannot
now be permitted to belatedly complain of a denial of due
process.
That petitioner was not represented by a lawyer in all
the aforesaid proceedings was solely attributable to its
own negligence or inattention to the case. While the court
has held that representation by a lawyer is a fundamental
right of litigants, petitioner has nobody to blame but itself
for its failure to secure the services of counsel resulting to
the dismissal of its case. In the case under scrutiny,
petitioner was represented by a non-lawyer, Ramon
Flores, who was present from the beginning of the case
but failed to efficiently follow-up the case until the
promulgation of judgment. While the right to due process
is available to all the parties, it does not countenance self-
serving excuses devised to undermine orderly
administration of justice.
After a careful study, and a thorough examination of
the pleadings and supporting documents, it appears
decisively clear that private respondent Silvestre
Germano was illegally dismissed. While a prolonged
absence without leave may constitute as a just cause of
dismissal, its illegality stems from the non-observance of
due process. Applying the WenPhil Doctrine by analogy,
where dismissal was not preceded by the twin
requirement of notice and hearing, the legality of the
dismissal in question, is under heavy clouds and therefore
illegal. While it cannot be deduced unerringly from the
records on hand that private respondent was really
dismissed, there is no clear indication that the latter was
to be reinstated. In fact, since the inception of the case,
what petitioner merely endeavored was to compromise for
a measly sum of P5,000.00, and no mention of taking
respondent back to his job was ever offered as part of the
deal to end the controversy. What can be surmised from
petitionerss offer to re-admit the private respondent, was
nothing but a polite gesture couched in words intended to
make the impact of his so-called suspension less
severe. Invoking the plight of a working man, where no
work, no pay is the rule of thumb, the court cannot
sanction an over extended suspension.The Labor Code
explicitly provides, that :
No preventive suspension shall last longer than thirty (30)
days. The employer shall thereafter reinstate the worker
to his former or substantially equivalent position or the
employer may extend the period of suspension provided
that during the period of extension, he pays the wages
and other benefits due to the worker. In such case, the
worker shall not be bound to reimburse the amount paid
to him during the extension if the employer decides
after completion of the hearing to dismiss the worker.[5]
In this case, the supposed suspension was expected
to last for more than the period allowed by law, thus
making the suspension constitutive of an illegal
dismissal. Therefore, the Labor Arbiters contention is
upheld by the Court.
Granting arguendo that private respondents
absence engendered undue difficulty to the smooth
operations of petitioners business, considering the
predicament of respondent Silvestre Germano, his
dismissal is unwarranted. In holding the constitutional
mandate of protection to labor, the rigid rules of procedure
may sometimes be dispensed with to give room for
compassion. The doctrine of compassionate justice is
applicable under the premises, private respondent being
the breadwinner of his family. The Social Justice policy
mandates a compassionate attitude toward the working
class in its relation to management. In calling for the
protection to labor, the Constitution does not condone
wrongdoing by the employee, it nevertheless urges a
moderation of the sanctions that may be applied to him in
the light of the many disadvantages that weigh heavily on
him like an albatross on his neck.[6]
The timeliness of petitioners appeal is an issue which
this court endeavors to pass upon. While the rule
governing the instant Petition does not fix a period within
which to file an appeal, the yardstick to measure the
seasonableness of a Petition for Certiorari is the
reasonableness of the duration of time that expired from
the commission of the act complained of, to the institution
of the proceedings to annul the same.[7] The court had the
occasion to hold that where no law can be applied, resort
to the fundamental law can be had. The Constitution
provides that :
All persons shall have the right to a speedy disposition of
their cases before all judicial, quasi-judicial and
administrative bodies.[8]

Taking into account the interval of time that elapsed

from the receipt of the assailed Resolution by petitioner,
to the time the court received the present
petition, an interregnum of almost three (3) months, the
irresistible conclusion is that the Petition was not filed on
time.

All things studiedly considered, we are of the view

that public respondent NLRC did not act with grave abuse
of discretion in awarding to private respondent the amount
of P65,685.90 which is not at all excessive under the facts
and circumstances of the case. Time and again, the court
held that factual findings by the Labor Arbiter are to
treated as final absent any showing that he erred in his
evaluation. The familiarity with the parties, circumstances
and opportunity to observe their demeanor is something
the court did not have the privilege to witness.

Untenable is petitioners contention that the said

amount awarded, representing backwages, separation
pay and attorneys fee is excessive and tantamount to a
deprivation of petitioners property without due process of
law. Once a finding of illegal dismissal is established, an
award of separation pay and backwages is in order and
binding upon the court, unless the contrary is proved. The
court shares the Labor Arbiters observation and
ratiocination that the amount of the questioned award is
not excessive in light of prevailing economic conditions.

WHEREFORE, the Petition for Certiorari under

consideration is hereby DISMISSED on the grounds, that
: (1) It was filed out of time; (2) It is devoid of merit; and (3)
it was interposed for purposes of delay.

Accordingly, the NLRC Resolution of July 23, 1996

is AFFIRMED in toto; the writ of execution issued on
September 13, 1996 upheld; and petitioners prayer for a
restraining order DENIED.

No pronouncement as to costs.

SO ORDERED.