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1. ART. 277 NEW PUERTO COMMERCIAL VS. LOPEZ

FACTS:

New Puerto Commercial hired respondent FelixGavan (Gavan) as a delivery panel driver andrespondent Rodel Lopez (Lopez) as rovingsalesman.

Petitioner Richard Lim is the operations manager ofNew Puerto Commercial.

Under a rolling store scheme, petitioners assignedrespondents to sell goods stocked in a van on cashor credit to the sari-sari stores of far-flung barangaysand municipalities outside Puerto Princesa City,Palawan. Respondents were duty-bound to collectthe accounts receivables and remit the same upontheir return to petitioners store on a weekly basis.

Respondents filed a complaint for illegal dismissaland non-payment of monetary benefits againstpetitioners with the RD of DOLE.

Conciliation conference was held but the partiesfailed to reach an amicable settlement

complaint was endorsed for compulsory arbitration atthe Regional Arbitration Branch of the NLRC

Nov 28, 2000- petitioners sent respondents noticesto explain why they should not be dismissed forgross misconduct based on (1) the allegedmisappropriation of their sales collections, and (2)their absence without leave for more than a month.The notice also required respondents to appearbefore petitioners lawyer on Dece mber 2, 2000 to

give their side with regard to the foregoing charges.Respondents refused to attend said hearing.

Dec 6, 2000- Petitioners filed a complaint for 3counts of estafa against respondents

Dec 7, 2000- Petitioners sent another set of noticesto attend hearing but resp failed to attend.

Dec 18, 2000- petitioners served notices oftermination on respondents on the grounds of grossmisconduct and absence without leave for more thanone month.

Feb 5, 2001- an info for estafa was filed

LA: DISMISSED (illegal dismissal)1. there is substantial evidence tending to establish that

respondents committed the misappropriation of theirsales collections from the rolling store business

2. These acts constituted serious misconduct andformed sufficient bases for loss of confidence whichare just causes for termination.

1. 3.The records also showed that respondents weregiven opportunities to explain their side

3. substantive and procedural due process bothcomplied. dismisall is valid.

4. petitioner failed to prove that they paid the 13modue to respondents. (pay respondents)

NLRC: AFFIRMED1. gross misconduct: misappropriating2. It noted that respondents never denied that

(1) they failed to surrender their collectionpetitioners, and (2) they stopped reporfor work during the last week of Oct2000

3. resp admitted misapp before the hearing offduring concialiation conference.

CA: AFFIRMED1. respondents were denied procedural due process2. formal investigation of respondents

misappropriation of company funds was a mafterthought

3. entitled to nominal damages for failure to complytwin reqts

ISSUE

WON respondents were denied procedural due proc justifying the award of nominal damages

HELD: YES

When the requirements of procedural due procare satisfied, the award of nominal damagesimproper.

the dismissal was valid because it was based on jcauses (i.e., grave misconduct and loss of trust aconfidence) due to respondents misappropriation oftheir sales collections.

In termination proceedings of employees, procedural process consists of the twin requirements of notice hearing. The employer must furnish the employee withwritten notices before the termination of employment caeffected:

(1) the first apprises the employee of the particular actomissions for which his dismissal is sought; and(2) the second informs the employee of the employersdecision to dismiss him. The requirement of a hearincomplied with as long as there was an opportunity toheard, and not necessarily that an actual hearing wconducted

An employees right to be heard in termination cases under Article 277 (b) as implemented by Section 2 (d), Rule I oImplementing Rules of Book VI of the Labor Code shouinterpreted in broad strokes. It is satisfied not only by a foface to face confrontation but by any meaningful opportto controvert the charges against him and to submit evidein support thereof.

A hearing means that a party should be given a chanceadduce his evidence to support his side of the case and ththe evidence should be taken into account in the adjudicaof the controversy. To be heard does not mean verbal

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argumentation alone inasmuch as one may be heard just aseffectively through written explanations, submissions orpleadings. Therefore, while the phrase ample opportunity tobe heard [in Article 277 of the Labor Code] may in factinclude an actual hearing, it is not limited to a formal hearingonly. In other words, the existence of an actual, formal trial -type hearing, although preferred, is not absolutelynecessary to satisfy the employee's right to be heard

The mere fact that the notices were sent to respondents afterthe filing of the labor complaint does not, by itself, establishthat the same was a mere afterthought.

The surrounding circumstances of this case adequatelyexplain why the requirements of procedural due processwere satisfied only after the filing of the labor complaint.Sometime in the third week of October 2000, petitionersreceived information that respondents were not remittingtheir sales collections to the company. Thereafter,petitioners initiated an investigation by sending one of theirtrusted salesmen, Bagasala, in the route being serviced byrespondents. To prevent a possible cover up, respondentswere temporarily reassigned to a new route to service.

Subsequently, respondents stopped reporting for work afterthey got wind of the fact that they were being investigated formisappropriation of their sales collection

respondents filed the subject illegal dismissal case to pre-empt the outcome of the ongoing investigation.

Bagasala returned from his month-long investigation infar-flung areas previously serviced by respondents reported that respondents indeed failed to remit P2,257.0sales collections.

As a result, on November 28, 2000, termination proceediwere commenced against respondents by sending noticesexplain with a notice of hearing scheduled on Decembe2000. As narrated earlier, respondents failed to give tside despite receipt of said notices. Petitioners sent anotset of notices to respondents on December 7, 2000 to attea hearing on December 15, 2000 but respondents agarefused to attend. Thus, on December 18, 2000, petitionserved notices of termination on respondents for grmisconduct in misappropriating their sales collections absence without leave for more than a month.

the award of nominal damages by the appellate court isimproper.

it cannot be concluded that the sending of the notices asetting of hearings were a mere afterthought becaupetitioners were still awaiting the report from Bagasala wrespondents pre-empted the results of the ongo

investigation by filing the subject labor complaint. Foreason, there was sufficient compliance with the requirements of notice and hearing even if the notices wsent and the hearing conducted after the filing of the lacomplaint.

SC: REVERSED AND SET ASIDE

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.2. ART. 279 UNITED LABORATORIES VS. DOMINGO

FACTS:Unilab is a prominent domestic corporation engaged in themanufacture, sale, marketing and distribution ofpharmaceutical products

Respondents were former employees of Unilab assigned tothe Distribution Accounting Department (DAD) servicing allthe accounting requirements of Unilabs sixteen (16)provincial depotsfourteen (14) distribution centers and two(2) area officesspread nationwide.

2001, under a Physical Distribution Master Plan(PDMP), Unilab consolidated its finished goodsinventories and logistics activities (warehousing,order processing and shipping) into one distributioncenter located in Metro Manila.

As a result, Unilab closed down its sixteen (16)provincial depots.

The job functions of the employees working thereatwere declared redundant and their positions were

abolished. Unilab gave the redundant employees a separationpackage of two and a half (2) months pay for everyyear of service.

7 January 2002: respondents REQUESTED for theirseparation or retirement from service under a separationPACKAGE SIMILAR OR EQUIVALENT to that of theredundant employees in the provincial depots. (Bagong SibolProgram)

Respondents were keen on retiring and receiving 2 monthspay for every year of service, and all the other benefits whichUnilab had extended to the redundant employees in theprovincial depots.

their positions are similarly situated [to] the retiredemployees of [Unilabs] distribution centers underthe principle that things that are alike should betreated alike since they also hold the position ofdistribution personnel.

UNILAB contentions: DENIED1. The PDMP is not a retirement program but a cost

restructuring measure which resulted in theredundancy of the job functions of the employeesworking in the provincial depots

2. No Bagong Sibol Program, United Retirement Plan(URP)

3. Unilab implemented a Shared Services Policy (SSP)o -which consolidated and centralized all

accounting functions of the UNILAB Groupof Companies

o -accounting services and requirements ofthe UNILAB Group of Companies, weremerged into a single pool, and performed inUnilabs main office.

o After the closure of the provincial depots,respondents were transferred and re-assigned to the accounting work poolpursuant to the SSP

RESP: 1. Constructive Dismissal nonpayment/underpaym

of separation pay, damages and attorneys feesagainst Unilab

2. availment of retirement benefits equivalent toseparation package of the redundant employees.

3. BUT Cortez AND respondents Domingo Remigio remained working at UNILAB.

LA: DISMISSED1. pay separation pay

NLRC: AFFIRMED*Remegio and Cortez-amicable settlement (full settlement and quitclaim)

CA: REVERSED1. Constructively dismissed2. reinstate or sep pay3. full backwages from abolition up to finality4. did not drop Remegio

ISSUE: WON there is constructive dismissalHELD:NOThe closing of the provincial depots did not result inabolition of respondents position as accountants. Whilethey had assignments pertaining to the provincial depthey did not perform goods distribution or warehoufunctions. They were accountants and their work as swas appropriately covered by the SSP that transferredaccounting functions to the Finance Division of Unilab.

PDMP was a cost restructuring strategy programand that the SSP was a recognized managementprerogative.

the legitimacy of Unilabs plan and policy was notquestioned by the respondents.

They wanted to avail of the separation packageemployees declared redundant because of tPDMP. They refused their transfer to the centraliFinancial Division as planned under the SSP.

When they were not included among thconsidered as redundant employees, they wanttheir transfer to the Financial Division declareconstructive dismissal, and Unilab pronouncedliable for damages and attorneys fees, aside fromnon-payment of separation pay.

CONSTRUCTIVE DISMISSAL Constructive dismissal is a derivative of dism

without cause; an involuntary resignation, nadismissal in disguise.

It occurs when there is cessation of work becacontinued employment is rendered impossiunreasonable, or unlikely as when there isdemotion in rank or diminution in pay or when a discrimination, insensibility, or disdain byemployer becomes unbearable to the employleaving the latter with no other option but to qui

dismissal without cause is prohibited because ofConstitutional security of tenure of workers.

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It should be remembered, however, that theentitlement of workers to security of tenure iscorrelative to the right of enterprises to reasonablereturns on investments

The right of employees to security of tenure does notgive them vested rights to their positions to theextent of depriving management of its prerogative tochange their assignments or to transfer them.

Managerial prerogatives, on the other hand, aresubject to limitations provided by law, collectivebargaining agreements, and general principles offair play and justice.

Simply put, security of tenure from which springs the conceptof constructive dismissal is not an absolute right. It cannotbe pleaded to avoid the transfer or assignment of employeesaccording to the requirements of the employers business.Such transfer or assignment becomes objectionable onlywhen it is not for reasonable returns on investments, andfor expansion and growth which are constitutionallyrecognized employers rights, but is sought merely as aconvenient cover for oppression.

Unilab instituted a cost restructuring strategy program called

the Physical Distribution Master Plan (PDMP) which resultedin the closure of [Unilabs] provincial depots

As a necessary consequence of the closure of [Unilabs]provincial depots, the positions affected became redundantand were declared to be so

the personnel affected by the redundancy were separatedfrom the service and paid a generous separation pay, i.e., 2.5months pay for every year of service.

The resp were all accountants and/or performing accounfunctions who, with the sole exception of complainant Cand prior to the implementation of the PDMP, wereassigned to the Distribution Division.

the abolition of departments or positions in company is one of the recognized managemprerogatives.

it is the prerogative of the employer to transfer reassign employees for valid reasons and accordto the requirements of its business. There therefore nothing irregular or illegal in the transf[respondents] to the Finance Division after [Uncame up with its Shared Services Policy.

Retirement and redundancy, while both resultinthe cessation of employment relations, are entirely different things

Petitioner has an elaborate Retirement Plan that lall possible benefits for retiring and resigemployees, and, significantly to this case, a separarticle on involuntary separation due to redundan

The requirements for, and the benefits from, the several

different manners of termination of employment naturally, also distinct and different. The employees camix and match rights and obligations which are set settled by law or agreement of the parties. This is particuevident in this case where respondents demanded either tredundancy of their services in the face of the employeescontinuing need for such services, or the benefits fredundancy upon their retirement or resignation

SC SETASIDE

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3. ART. 279 NATIONWIDE SECURITY VS. VALDERAMA

FACTS: Valderama was hired by petitioner as security guard

on April 18, 2002. He was assigned at the Philippine Heart Center

(PHC), Quezon City, until his relief on January 30,2006

Valderama was not given any assignment thereafter August 2, 2006, he filed a complaint for constructive

dismissal and nonpayment of 13th month pay, withprayer for damages against petitioner and RomeoNolasco.

PETITIONER alleged voluntary resignation committed serious violations of the security rules in

the workplace. was charged with conduct unbecoming for which he

was required to explain. failed to attend a mandatory seminar. suspended for 7 days were made to explain their failure to report for duty

without informing the office despite the instructionduring their formation day but resp challenged him abandonment

RESPONDENT relieved from employment

LA: CONSTRUCTIVE DISMISSAL1. involuntary resignation2. burden of proof: employer failed to discharge3. retraining course4. reinstatement plus backwages plus 13mo pay

NLRC: MODIFIED1. neither constructively terminated nor did he

voluntarily resign.2. deleted backwages

CA: REVERESED AND SET ASIDE1. constructive dismissal2. floating status for more than six (6) months3. retraining course5. backwages

ISSUE: WON there is constructive dismissal

HELD:YES

In cases involving security guards, a relief andtransfer order in itself does not sever employmentrelationship between a security guard and hisagency.

An employee has the right to security of tenurethis does not give him a vested right to his posias would deprive the company of its prerogativchange his assignment or transfer him where service, as security guard, will be most beneficithe client.

The onus of proving that there is no post availabwhich the security guard can be assigned rests the employer

When a security guard is placed on a "floastatus," he does not receive any salary or finanbenefit provided by law.

Due to the grim economic consequences to the employthe employer should bear the burden of proving that thereno posts available to which the employee temporarily owork can be assigned.

floating status for more than 6 months.

relieved from January until August temporary inactivity or floating status of securityguards should continue only for six monOtherwise, the security agency concerned couldliable for constructive dismissal.

The failure of petitioner to give respondent a wassignment beyond the reasonable six-month period makit liable for constructive dismissal.

If there is a surplus of security guards caused by lackclients or projects, the security agency may resortretrenchment upon compliance with the requirements

forth in the Labor Code. In this way, the security agencynot to be held liable for constructive dismissal andburdened with the payment of backwages.

did not present resignation letter March 2006: required resp to report for reassignm Feb 2006: alleged resignation

Petitioner capitalizes on the withdrawal of the cash firearm bonds by respondent. It contends that the withdraof bonds sufficiently proved respondents intention toterminate his employment contract with petitioner.

cash bond and firearm bond are never withdrawable folong as the security guard intends to remain an employethe security agency.=not binding/not applicable

SC AFFIRMED

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4. ART. 279 (BACKWAGES VS. SEPARATION PAY) BORDOMEO VS. CA

FACTS:IPI Employees Union-Associated Labor Union (Union),

representing the workers, had a bargaining deadlock with theIPI management. This deadlock resulted in the Union staging astrike and IPI ordering a lockout.

after assuming jurisdiction over the dispute, DOLE SecretaryRuben D. Torres

No ULP, NO illegal strike, enter into new CBA, union =SEBA

MROrdering the International Pharmaceutical Inc. to reinstate totheir former positions with full backwages reckoned from 8December 1989 until actually reinstated without loss of seniorityrights and other benefits the "affected workers"

IP filed a petition for certiorari--> dismissed

no grave abuse of discretion had attended the issuance ofthe assailed decisions--> became final

Union moved in the National Conciliation and MediationBoard in DOLE for their execution.

Regional Director Alan M. Macaraya of DOLE Region VIIissued a Notice of Computation/Execution--> directed parties to submit computations--> only the computation from complainants including those thatwere not specifically mentioned in the Supreme Court decisionwere submitted and received by this office.

Upon verification of the Computation--> management is hereby directed to pay the employeesincluding those that were not specifically mentioned in thedecision but are similarly situated, the aggregate amount of(P43,650,905.87) involving (962) employees

Regional Director Macaraya increased the number of theworkers to be benefitted to 962 employees classified into sixgroups and allocated to each group a share in theP43,650,905.87 award,

May 24, 1995 writ of execution was issuedfor the amount of P4,162,361.50 (which covered monetaryclaims corresponding to the period from January 1, 1989 toMarch 15, 1995) in favor of the 15 employees represented byAtty. Arnado,

another writ of executionamount of P1,200,378.92 in favor of the second group ofemployees. Objecting to the reduced computation for them,however, the second group of employees filed a MotionDeclaring the Writ of Execution dated June 5, 1995 null andvoid.

IPI challenged the May 24, 1995 writ of execution

DOLE Secretary Jose Brillante , recalled and quashed theMay 24, 1995 writ of execution, and declared and consideredthe case closed and terminated.15 employees appealed

DOLE secretary granted. reinstated the May 24 writ of execution

--> subject to the deduction of the sum of P745,959.39 alrepaid pursuant to quitclaims from the award of P4,162,361.5

Secretary Quisumbing declared the quitclaims executedthe employees on December 2, 3, and 17, 1993 without assistance of the proper office of the DOLE unconscionablehaving been entered into under circumstances showing vitiaof consent; ruled that the execution of the quitclaims should

prevent the employees from recovering tmonetary claims under the final and execudecisions dated December 26, 1990 aDecember 5, 1991, less the amounts receivunder the quitclaims.

IPI moved for a reconsideration.

Pending IPI MR--> Regional Director Macaraya issued a writ of executiofavor of the 15 employees represented by Atty. Arnado

recover P3,416,402.10 pursuant to the order dated August 1996 of Secretary Quisumbing.

--> sheriff garnished the amount of P3,416,402.10 out offunds of IPI with China Banking Corporation, which releaseamount.

--> Hence, on September 11, 1996, the 15 employrepresented by Atty. Arnado executed a SatisfactionJudgment and Quitclaim/Release upon receipt of trespective portions of the award, subject to the reservationtheir right to claim "unsatisfied amounts of separation pawell as backwages reckoned from the date after 15 March 1and up to the present, or until separation pay is fully paid."

Notwithstanding the execution of the satisfaction of judgmand quitclaim/release-Atty. Arnado still filed an omnibus motion not only in behthe 15 employees but also in behalf of other employees namin the notice of computation/execution, with the exception osecond group, seeking another writ of execution to recoverfurther sum of P58,546,767.83.27

The employees belonging to the second group reiterated thMotion Declaring the Writ of Execution dated June 5, 1995and void, and filed on May 15, 1996 a Motion for IssuancWrit, praying for another writ of execution based oncomputation by Regional Director Macaraya.

Secretary Quisumbing, affirming his August 27, 1996 orde-denied IPIs Motion for Reconsideration for being renderedmoot and academic by the full satisfaction of the May 24, 1writ of execution.-denied Atty. Arnados omnibus motion fo r lack of merit; dealt with the issue involving the June 5, 1995 writ of execuissued in favor of the second group of employees, whichCourt eventually resolved

Atty. Arnado filed a Motion for Execution with the Regional Office demanding the following amounts from Iwit:

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For Roberto Bordomeo and 14 others P4,990,401.00The rest of complainants 33,824,820.41Total P 38,815,221.41

DOLE Secretary Patricia Sto. Tomas Order affirming the order issued on March 27, 1998, and

declaring that the full execution of the order of March27, 1998 "completely CLOSED and TERMINATED thiscase."

Petitioners Appealed to CA--> dismissed = case between petitioners and privaterespondent IPI have long attained finality.

PETITIONERSsix groups of employees classified under the April 12, 1995notice of computation/execution issued by Regional DirectorMacaraya, only the first two groups, that is, the 15 employeesinitially represented by Atty. Arnado; and the nine salesmen ledby Geronimo S. Banquirigo, had been granted a writ ofexecution.

May 24, 1995 writ of execution issued in favor of the firstgroup of employee partially satisfied because no backwagesor separation pay from March 16, 1995 onwards had yet beenpaid to them;

that the reduced award granted to the second group ofemployees was in violation of the April 12, 1995 notice ofcomputation/execution;

that no writ of execution had been issued in favor of the othergroups of employees; and that DOLE Secretary Sto. Tomasthus committed grave abuse of discretion in refusing to fullyexecute the December 26, 1990 and December 5, 1991 orders.

IPI--> petition for certiorari not proper remedy--> the more appropriate remedy being a petition for review oncertiorari; that a petition for review on certiorari should havebeen filed within 15 days from receipt of the denial of the motionfor reconsideration, as provided in Section 1 and Section 2 ofRule 45; -->and that the petition must also be outrightlydismissed for being filed out of time.

ISSUE: WON THE PETITIONERS ARE STILL ENTITLED TOSEPARATION PAY AND BACKWAGES (WRIT OFEXECUTION PARTIALLY SATISIFED?)

HELD: NO. THEIR DEMAND HAS BEEN FULLY COMPLIEDWITH.

SC--> appeal by petition for review on certiorari under Rule 45 ofthe Rules of Court, to be taken to this Court within 15 days fromnotice of the judgment or final order raising only questions oflaw = PROPER REMEDY

*two writs of execution were NOT only partially satisfied. the two writs of execution issued were the one for

P4,162,361.50, later reduced to P3,416,402.10, infavor of the 15 employees represented by Atty. Arnado,and that for P1,200,378.92 in favor of the second groupof employees led by Banquerigo.

15 EMPLOYEES received P3,416,402.10 through the releof the garnished deposit of IPI at China Banking Corporati--> then they executed satisfaction of judgment quitclaim/release

--> DOLE secretary basis for the decision that wrexecution was fully satisfied case completed and terminat

BUT STILL--> 15 employees demand payment of their separation pay abackwages from March 16, 1995 onwards pursuant to treservation reflected in the satisfaction of judgment quitclaim/release they executed

SC DEMAND OF 15 EMPLOYEE LACKED BASISDECISION OF DOLE SEC --> required IPI to reinstataffected workers to their former positions with full backwreckoned from December 8, 1989 until actually reinstwithout loss of seniority rights and other benefits

--> REINSTATEMENT NO LONGER POSSIBLE - separatpay was instead paid

-- "separation pay may avail in lieu of reinstatemereinstatement is no longer practical or in the best interest ofparties. Separation pay in lieu of reinstatement may likewis

awarded if the employee decides not to be reinstated.the employment of the 15 employees or the possibility oftheir reinstatement terminated by March 15, 1995

claim for separation pay and backwages beyond March 1995 would be unwarranted.--> The computation of separation pay and backwages shonot go beyond the date when they were deemed to have beactually separated from their employment, or beyond the dwhen their reinstatement was rendered impossible.

"The basis for the payment of backwages is different from thatfor the award of separation pay. Separat ion pay is grantwhere reinstatement is no longer advisable because of strainedrelations between the employee and the employer. Backwagrepresent compensation that should have been earned butwere not collected because of the unjust dismissal. The bafor computing backwages is usually the length of theemployees service while that for separation pay is the actual

period when the employee was unlawfully prevented fromworking."

THUS an illegally dismissed employee is entitled to

reliefs:backwages and reinstatement. - SEPARATE AND DISTIN

SEPARATION PAY GRANTED WHEN--reinstatement is no longer feasible because of strainrelations between the employee and the employerIn effect,

The normal consequences of respondents illegaldismissal--> reinstatement without loss of seniority rights, and paymof backwages computed from the time compensation wwithheld up to the date of actual reinstatement.--> Where reinstatement is no longer viable as an optseparation pay equivalent to one (1) month salary for every yof service should be awarded as an alternative. The paymof separation pay is in addition to payment of backwages.

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THUS, petitioner IS ENTITLED TO BACKWAGES ANDSEPARATION PAY(reinstatement rendered impossible due tostrained relations)

COMPUTATIONcomputed from the time he was unjustly dismissed until his

actual reinstatement, or from February 1999 until June 30, 2005when his reinstatement was rendered impossible without faulton his part

CA computation incorrect

CA- only 8 yearsSC--> Petitioner was hired in 1990, however, and he mustconsidered to have been in the service not only until 1999, whe was unjustly dismissed, but until June 30, 2005, the dayis deemed to have been actually separated (his reinstatemehaving been rendered impossible) from petitioner companfor a total of 15 years.

SC dismissed petition

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5. ART. 280 ATOK BIG WEDGE COMPANY, INC. VS. GISON

FACTS:RESP Jesus Gison part time consultant retainer basis by AtokBig Wedge Co.

assisted petitioner's retained legal counsel with matterspertaining to the prosecution of cases against illegal surfaceoccupants within the area covered by the company's mineralclaims.

tasked to perform liaison work with several governmentagencies, which he said was his expertise.

--required to report to its office on a regular basis, except whenoccasionally requested by the management to discuss mattersneeding his expertise as a consultant.

As payment for his services, respondent received a retainerfee of P3,000.00 a month, which was delivered to him either athis residence or in a local restaurant.

The parties executed a retainer agreement , but suchagreement was misplaced and can no longer be found. -->continued for 11 years

RESP getting old, requested pet to register him with SSS

-- PET refused since RESP was only retainer or consultantPET filed complaint with SSS for pet refusal to cause hisregistration

Resident manager of Pet issued a Memo advising resp thatwithin 30 days from receipt his retainer contract will beterminated; services not necessary

RESP filed a Complaint for illegal dismissal, unfair laborpractice, underpayment of wages, non-payment of 13th monthpay, vacation pay, and sick leave pay

RESP allegations resident manager (Torres) approached him and asked him if

he can help the companys problem involving the 700 millionpesos crop damage claims of the residents living at the minesiteof Atok.

participated in a series of dialogues conducted with theresidents. Mr. Torres offered to pay him P3,000.00 per monthplus representation expenses.

AGREED that his participation in resolving the problem wastemporary and there will be no employer-employee relationshipbetween him and Atok.

his compensation, allowances and other expenses will bepaid through disbursement vouchers.

He joined Atok. After a week the aggrieved crop damageclaimants barricaded the only passage to and from theminesite. a dialogue was made by Atok and the crop damageclaimants. They were virtually held hostage by the irateclaimants who demanded on the spot payment of their claims.He was able to convince the claimants to release the companyrepresentatives pending referral of the issue to highermanagement.

Another case erupted. Involved Atok's partner, benguetCorporation, Controversy was resolved. Atok received its shareof 5Mworth of equipment and condonation of its accountabilities900k.

Crop damage claimants didi not pursue their claims

After the crop damage claims and the controversy wresolved, he was permanently assigned by Atok to take chaof some liaison matters and public relations in Baguio Benguet Province, and to report regularly to Atoks office iManila to attend meetings and so he had to stay in Manilleast one week a month.

his length of service invited the attention of the top officethe company that he is already entitled to the benefits dueemployee under the law, but management ignored his reques

BUT he continued to avail of his representation expenses reimbursement of company-related expenses.also enjoyed the privilege of securing interest free salary lopayable in one year through salary deduction.

RESP getting older (56y/o), requested to cause registration. IGNORED. So he filed a complaint with RESP then terminated his services.

LAin favor of PET. NO EE. DISMISSED COMPLAINT

NLRCaffirmed

CAIN FAVOR of RESPset aside NLRC

ORDERED to reinstate petitioner Jesus P. Gison to former or equivalent position without loss of seniority rightto pay him full backwages, inclusive of allowances and obenefits or their monetary equivalent computed from the these were withheld from him up to the time of his actual effective reinstatement

remanded to LA for proper computation

--> NLRC may have overlooked Article 280 or the provwhich distinguishes between two kinds of employees, regular and casual employees.

--> respondent= regular after the lapse of 1 yr fromemployment

=worked for 11 years. Entitled to right and privileges of a reemployee

=even if with agreement that employment is temporpetitioner disregarded it by repeatedly giving RESP sevtasks.

=although respondent may have waived his right to attairegular status of employment when he agreed to perform thtasks on a temporary employment status, still, it was the that recognized and considered him a regular employee ahis first year of rendering service to petitioner. WAIVEINEFFECTIVE

PETITIONER= petition for review under RUle 65 --> CA should have lithe issue on whether or not there was grave abuse of discreton the part of the NLRC

when existence of EE in dispute, ART 280 not applicabl

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=article only set the distinction between a casual employee froma regular employee for purposes of determining the rights of anemployee to be entitled to certain benefits.=respondent is not a regular employee and not entitled toreinstatement.

RESPONDENT=maintains that he is an employee of the petitioner and that theCA did not err in ruling in his favor.

ISSUE: whether or not an employer-employee relationshipexists between petitioner and respondent.Whether or not respondent is a regular employee (ART 280applicable?) NO

HELD:NO.FOUR FOLD TEST(1) the selection and engagement of the employee;(2) the payment of wages;(3) the power of dismissal; and(4) the power to control the employee's conduct, or the so-called "control test." most important.

The so-called control test is commonly regarded as the mostcrucial and determinative indicator of the presence or absenceof an employer-employee relationship. Under the control test,an employer-employee relationship exists where the person forwhom the services are performed reserves the right to controlnot only the end achieved, but also the manner and means tobe used in reaching that end

NO EErespondent was not required to report everyday during

regular office hours of petitioner. monthly retainer fees were paid to him either at his residence

or a local restaurant.petitioner did not prescribe the manner in which respondent

would accomplish any of the tasks in which his expertise as aliaison officer was needed;

respondent was left alone and given the freedom toaccomplish the tasks using his own means and method.Respondent was assigned tasks to perform, but petitioner didnot control the manner and methods by which respondentperformed these tasks.

AGREEMENT-services temporary. NO EE-complainant's compensations, allowances, representatexpenses and reimbursement of company- related expenswill be processed and paid through disbursement vouchers

RESP aware that he is temporaryrespondent anchors his claim that he became a regu

employee of the petitioner based on his contention that temporary aspect of his job and its limited nature could not

have lasted for eleven years unless some time during tperiod, he became a regular employee of the petitioner continually performing services for the company.

SC- RESP not an employee; not regularappellate court's premise that regular employees are those wperform activities which are desirable and necessary for business of the employer is not determinative in this case

any agreement may provide that one party shall renservices for and in behalf of another, no matter how necessfor the latter's business, even without being hired as employee.

--> respondent's length of service (11 YEARS) and petitiorepeated act of assigning respondent some tasks to performed DID NOT result to respondent's entitlement torights and privileges of a regular employee

Article 280 NOT APPLICABLE(the lower court used to buttress its findings that respondbecame a regular employee of the petitioner)

=Not the yardstick for determining the existence ofemployment relationship because it merely distinguisbetween two kinds of employees, i.e., regular employees casual employees, for purposes of determining the right oemployee to certain benefits, to join or form a union, osecurity of tenure; it does not apply where the existence ofemployment relationship is in dispute.

SC= NO ILLEGAL DISMISSAL.CA DECISION REVAND SET ASIDE

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6. ART 281 ROBINSONS GALLERIA VS. RANCHEZ

FACTS:RESP probationary employee of Robinsons for 5 months.

underwent 6 weeks of training as a cashier before she washired.

2 weeks after she was hired, she reported the loss of 20,299 which she placed in the company locker

PET ordered that she be strip-searched =nothing was foundRESP acknowledged her responsibility to settle and pay theamount.

PET still reported her to the police.

An information for qualified theft was filed.She was jailed for two weeks,

RESP filed a complaint for Illegal dismissal and damages.

PET sent to respondent by mail a notice of termination and/ornotice of expiration of probationary employment dated March9, 1998

LAno illegal dismissalRespondents are ordered to accept complainant to herformer or equivalent work without prejudice to any action theymay take in the premises in connection with the missingmoney of P20,299.00.

at the time respondent filed the complaint for illegaldismissal, she was not yet dismissed by petitioners.

When she was strip- searched by the security personnel ofpetitioner Supermarket, the guards were merely conductingan investigation.

The subsequent referral of the loss to the police authoritiesmight be considered routine.

Respondents non -reporting for work after her release fromdetention could be taken against her in the investigation thatpetitioner supermarket would conduct

NLRCreversed LA

respondent was denied due process by petitioners.Strip-searching respondent and sending her to jail for twoweeks certainly amounted to constructive dismissal becausecontinued employment had been rendered impossible,unreasonable, and unlikely. The wedge that had been drivenbetween the parties was impossible to ignore.

Although respondent was only a probationary employee,the subsequent lapse of her probationary contract ofemployment did not have the effect of validly terminating heremployment because constructive dismissal had alreadybeen effected earlier by petitioners

CAaffirmed NLRC

PETITIONERSassailed the reinstatement

RESP only probationary employee. probationary contract ofemployment lapsed on March 14, 1998.Reinstatement=moot and academic

even if her probationary contract had not yet expired,offense that she committed would nonetheless miliagainst her regularization

RESPONDENTalleged that she was constructively dismissed

when she was strip-searched, divested of dignity, and summarily thrown in jail. She could not been expected to go back to work after being allowed to pbail because her continued employment had been renderimpossible, unreasonable, and unlikely.

at the time the money was discovered missingwas not with her but locked in the company locker. company failed to provide its cashiers with strong locksproper security in the work place.

she was not caught in the act and even reportthat the money was missing.

denied due process

ISSUE: whether respondent was illegally terminated femployment by petitioners.

HELD: YES

There is probationary employment when the employee uhis engagement is made to undergo a trial period durwhich the employer determines his fitness to qualifyregular employment based on reasonable standards maknown to him at the time of engagement

A probationary employee, like a regular employee, ensecurity of tenure. However, in cases of probationemployment, aside from just or authorized causes termination, an additional ground is provided under A281 of the Labor Code, i.e., the probationary employee malso be terminated for failure to qualify as a regular emploin accordance with reasonable standards made known by employer to the employee at the time of the engagement

Thus, the services of an employee who has been engagon probationary basis may be terminated for any of following:(1) a just or(2) an authorized cause; and(3) when he fails to qualify as a regular employeeaccordance with reasonable standards prescribed by temployer.

Article 277(b) of the Labor Code mandates that subject toconstitutional right of workers to security of tenure and right to be protected against dismissal, except for just authorized cause and without prejudice to the requiremennotice under Article 283 of the same Code, the emploshall furnish the worker, whose employment is sought toterminated, a written notice containing a statement ofcauses of termination, and shall afford the latter amopportunity to be heard and to defend himself withassistance of a representative if he so desires, in accordanwith company rules and regulations pursuant to guidelines set by the Department of Labor and Employm

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petitioners failed to accord respondent substantive andprocedural due process .

The haphazard manner in the investigation of the missingcash, which was left to the determination of the policeauthorities and the Prosecutors Office, left responden t withno choice but to cry foul.

Administrative investigation was not conducted bypetitioner Supermarket. On the same day that the missingmoney was reported by respondent to her immediatesuperior, the company already pre-judged her guilt withoutproper investigation, and instantly reported her to the policeas the suspected thief, which resulted in her languishing injail for two weeks.

the due process requirements under the Labor Code aremandatory and may not be supplanted by police investigationor court proceedings. The criminal aspect of the case isconsidered independent of the administrative aspect.

employers should not rely solely on the findings of theProsecutors Office. They are mandated to conduct their ownseparate investigation, and to accord the employee everyopportunity to defend himself.

respondent was not represented by counsel when she wasstrip-searched inside the company premises or during thepolice investigation, and in the preliminary investigationbefore the Pros ecutors Office.

Respondent was constructively dismissedunreasonable to charge her with abandonment for not

reporting for work upon her release in jail.It would be the height of callousness to expect her to returnto work after suffering in jail for two weeks. Work had beenrendered unreasonable, unlikely, and definitely impossible,considering the treatment that was accorded respondent bypetitioners.

RESPONDENTS MONETARY CLAIMS Article 279 of the Labor Code provides that an employee whois unjustly dismissed from work shall be entitled toreinstatement without loss of seniority rights and otherprivileges, to full backwages, inclusive of allowances, and toother benefits or their monetary equivalent computed fromthe time his compensation was withheld from him up to thetime of his actual reinstatement.

BUT DUE TO STRAINED relationsseparation pay has been considered an acceptable

alternative to reinstatement

such payment liberates the employee from what coulda highly oppressive work environment. On the other,payment releases the employer from the grossly unpalataobligation of maintaining in its employ a worker it coulonger trust.

illegally or constructively dismissed employee, entito: (1) either reinstatement, if viable, or separation pareinstatement is no longer viable; and (2) backwages. Thtwo reliefs are separate and distinct from each other and awarded conjunctively

RESP entitled to separation pay and backwagesreckoned from the time of her constructive dismissal

the date of the termination of her employment, i.e., fOctober 30, 1997 to March 14, 1998. The computashould not cover the entire period from the time compensation was withheld up to the time of her acreinstatement.

because respondent was a probationary employee, athe lapse of her probationary employment without appointment as a regular employee of petitioSupermarket effectively severed the employer-emplorelationship between the parties.

PROBATIONARY EMPLOYMENTIn all cases involving employees engaged on probationbasis, the employer shall make known to its employees standards under which they will qualify as regular emploat the time of their engagement.

Where no standards are made known to an employee at ttime, he shall be deemed a regular employee, unless the jis self-descriptive, like maid, cook, driver, or messenHowever, the constitutional policy of providing full protto labor is not intended to oppress or destroy managemen

Naturally, petitioner Supermarket cannot be expectedretain respondent as a regular employee considering that slost P20,299.00 while acting as a cashier during probationary period.

The rules on probationary employment should not be useexculpate a probationary employee who acts in a mancontrary to basic knowledge and common sense, in regarwhich, there is no need to spell out a policy or standard tomet.

SC- CA affirmed.

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7. RADIN C. ALCIRA,peti t ion er, vs . NATIONAL LABOR RELATIONS COMMISSION, MIDDLEBY PHILIPPINCORPORATION/FRANK THOMAS, XAVIER G. PEA and TRIFONA F. MAMARADLO,respondents .

LA, NLRC, CA- dismissed the complaint of Radin Acira for illegal dismissal with prayer forreinstatement, back wages, moral damages,exemplary damages and attorneys fees.

Facts:

Petitioner Radin Alcira- hired as engineeringsupport services supervisor of a probationary basisfor 6 mos.

Respondent Middleby hilipppines Corporations(Middleby)- terminated R.Alciras servic es. Reason:unhappy with the performance of the petitioner.

Parties both showed a copy of appointment paperpresenting conflicting starting dates.

o Alcira- May 20, 1996. Middledby- May 27,1996

o Status: probationary after 5 mos hisperformance must be evaluated and any

adjustment with his salary shall depend onhis work performance.

Nov 20, 1996- petitioner asserts that a senior officerof respondent Middleby in bad faith withheld histime card and did not allow him to work.

Nov 21, 1996- R. Alcira filed a complaint in NLRC.he contended that he was illegally dismissed andthat he already became a regular employeebecause his probationary status had lapsed

Defense of Middleby- during petitionersprobationary employment, he showed poorperformance in his assigned tasks, incurred tenabsences, was late several times and violatedcompany rules on the wearing of uniform. Since hefailed to meet company standards, petitionersapplication to become a regular employee wasdisapproved and his employment was terminated.

Ruling of Labor Arbiter - dismissed the complaint.Ground: (1) respondents were able to prove thatpetitioner was apprised of the standards forbecoming a regular employee; (2) respondentMamaradlos affidavit showed that petitioner did notperform well in his assigned work and his attitudewas below par compared to the companys standardrequired of him and (3) petitioners dismissal onNovember 20, 1996 was before his regularization,considering that, counting from May 20, 1996, thesix-month probationary period ended on November20, 1996.

Ruling of NLRC and CA affirmed. CA: notermination only expiration of contact. Probationaryemployment only, contractual in nature andemployment is within a definite period. At theexpiration of the contract his appointment wasdeemed terminated and no notice of non-renewal innecessary. Security of tenure can only be invoked

during the period of probationary period. Upon

expiration of the probationary period constitutional protection of security of tenure cno longer be invoked.

Supreme Court 3 issues

ART. 281. PROBATIONARY EMPLOYMENTProbationary employment shall not exceed six

months from the date the employee started workunless it is covered by an apprenticeship agreemstipulating a longer period. The services ofemployee who has been engaged on a probationbasis may be terminated for a just cause or whenfails to qualify as a regular employee in accordawith reasonable standards made known by employer to the employee at the time of engagement. An employee who is allowed to wafter a probationary period shall be considereregular employee.

1st issue: WON Petitioner became a regu

employee. NO Petitioner claimed that his probationary period is

5 mos. Because of the provision that he willevaluated after 5 mos.

SC: petitioners argument lacks merit because istated in his appointment paper that his employmstatus was probationary (6mos). The five monthperiod he was referring was for the evaluation owork.

Alcira(petitioner) insisted that he was alreadregular employee- Petitioner insists that he alre

attained the status of a regular employee when was dismissed on November 20, 1996 becauhaving started work on May 20, 1996, the six-mprobationary period ended on November 16, 19

According to petitioners computation, since Article13 of the Civil Code provides that one montcomposed of thirty days, six months total hundred eighty days. As the appointment provthat petitioners status was probationary (6 mos.)without any specific date of termination, 180th day fell on November 16, 1996. Thus, whewas dismissed on November 20, 1996, he walready a regular employee.

SC: Alcira is incorrect. SCs comp utation of 6-mprobationary period is reckoned from the dateappointment up to the same calendar date of the 6thmonth following.

o The number of days of each monthirrelevant. He is still a probatioemployee when Middleby opted noregularized him on Nov 20, 1996

2nd issue: WON the respondent informed the petitioner ostandards for regularization at the start of his employment.YES

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Section 6 (d) of Rule 1 of the Implementing Rules ofBook VI of the Labor Code (Department Order No.10, Series of 1997) provides that: (d) In all cases ofprobationary employment, the employer shall makeknown to the employee the standards under whichhe will qualify as a regular employee at the time ofhis engagement. Where no standards are madeknown to the employee at that time, he shall bedeemed a regular employee.

SC held yes: Middleby substantially notifiedpetitioner of the standards to qualify as a regularemployee when it apprised him, at the start of hisemployment, that it would evaluate his supervisoryskills after five months.

o an employer is deemed to substantiallycomply with the rule on notification ofstandards if he apprises the employee thathe will be subjected to a performanceevaluation on a particular date after hishiring.

o SC agreed with the LA in saying thatpetitioner cannot claim that the respondentdid not inform him of the standards, becauseit is clear in their agreement that after 5 moshis performance would be evaluated.

3rd issue: WON petitioner was illegally dismissed whenrespondent opted not to renew his contract on the last day ofhis probationary employment. NO

SC: the dismissal cannot be deemed illegal.

It is settled that even if probationary employeenot enjoy permanent status, they are accorded tconstitutional protection of security of tenure. means they may only be terminated for just causwhen they otherwise fail to qualify as regemployees in accordance with reasonable standamade known to them by the employer at the timtheir engagement.

But we have also ruled in Manlimos, et. al. vsNational Labor Relations Commission [15] that

constitutional protection ends on the expiration oprobationary period. On that date, the parties free to either renew or terminate their contracemployment. Manlimos concluded that (t)hidevelopment has rendered moot the questionwhether there was a just cause for the dismissathe petitioners xxx. [16] In the case at bar, respondMiddleby exercised its option not to renewcontract when it informed petitioner on the lastof his probationary employment that it did not into grant him a regular status.

As found by the labor arbiter, the NLRC andCourt of Appeals, petitioner (1) incurred absences (2) was tardy several times (3) failedwear the proper uniform many times and (4) showinferior supervisory skills. Petitioner failesatisfactorily refute these substantiated allegatioTaking all this in its entirety, respondent Middwas clearly justified to end its employmrelationship with petitioner.

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8. CALS POULTRY SUPPLY CORPORATION and DANILO YAP,peti t ioners , vs . ALFREDO ROCO and CANDELARROCO, respondents .

Facts:

Petitioner - CALS Poultry Supply Corporation isengaged in the business of selling dressed chickenand other related products and managed by DaniloYap.

Respondent/s: Alfredo Roco- was hired as driverand Edna Roco(sister) as helper in the dressingroom of CALS both hired on March 15, 1984.Candelaria Roco, another sister, was hired on March16, 1984 as helper, also at its chicken dressing planton a probationary basis.

Mach 5, 1996- Alfredo and Candeleria filed acomplaint for illegal dismissal against CALS and D.Yap. They allege that they were illegally dismissedon Jan 20, 1996 and November 5, 1996. They bothclaimed to be underpaid.

Edna also filed a complaint for illegal dismissal- sheallege that that on June 26, 1996, she wasreassigned to the task of washing dirty sacks and forthis reason, in addition to her being transferred fromnight shift to day time duties, which she consideredas management act of harassment, she did notreport for work.

Alfredo- claimed that he was dismissed for refusingto accept the 30000 php offered to him by the lawyerof CALS, in exchange for his executing a letter ofvoluntary resignation.

Candelaria Roco- averred that she was terminatedwithout cause from her job as helper after servingmore than six (6) months as probationary employee.

Labor Arbiter in favor of petitioner-o Alfredo Rocos case - Ruling: dismissed the

complaint for Illegal dismissal for lack ofmerit. Ground: he applied for leave ofabsence and was granted. He neverreturned for work. A notice to inquire wassent to him if he still has intention ofresuming his work. He did not respond. hewas not dismissed; it was he who unilaterallysevered his relation with his employer.

o Candelarias case - Ruling: upheld CALSdecision not to continue with her

probationary employment having beenfound her unsuited for the work for which herservices were engaged. She was hired onMay 16, 1995 and her services wereterminated on November 15, 1995.

o Edna Rocos case - according to the Labor Arbiter, began absenting herself on June 25,1996. She was sent a memo on July 1,1996 requiring her to report for workimmediately, but she did not respond.

NLRC affirmed LA- in favor of CALS

Court of Appeals: in favor of respondents. Alfredo Candelaria to be reinstated etc. Except for EDNA abandoned her work

CA: Alfredo and Candelaria was illegally dismissed.

Supreme Court: in favor of CALS (petitioner)

1. WON Alfredo was illegally dismissed. NO

Alfredo was not able to establish convincthat he was dismissed. No notice of terminawas given to him by CALS.

private respondents failure to work was due tothe misunderstanding between t he petitionermanagement and private respondent. correctly observed by the Labor Arbiter, prirespondent must have construed the October incident as his dismissal so that he opted nowork for many days thereafter and instead fa complaint for illegal dismissal. On the ohand, petitioner interpreted private respondents

failure to report for work as an intentiabandonment. However, there was no intendismiss private respondent since the petitionewilling to reinstate him. Nor was there an ito abandon on the part of private respondsince he immediately filed a complaint for ildismissal soon after the October 28 incidenwould be illogical for private respondenabandon his work and then immediately filaction seeking his reinstatement xxx. Unthese circumstances, it is but fair that each pamust bear his own loss, thus placing the parton equal footing.

2. WON CANDELRIAs termination of employment iswithin the probationary period of her employmYES

Her employment was in a probationary basis.

She was hired on May 16, 1995 and her serviwere terminated on November 15, 1995 due to pwork performance. She did not measure up to work standards on the dressing of chicken. Labor Arbiter sustained CALS in terminatingemployment. The NLRC affirmed the Labor Arbitersruling.

She did not meet the required standards by National Meat Inspection Commission. (dresplants with Double AA Rating to which CALSemployee were brief and with regard to)

We agree with CALS contention as upheld by boththe Labor Arbiter and the NLRC that Candelariasservices was terminated within and not beyond6-month probationary period.

The computation of the 6-month probationary peis reckoned from the date of appointment up tosame calendar date of the 6 th month following.

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9. MITSUBISHI MOTORSPHILIPPINES CORPORATION vs. CHRYSLER PHILIPPINESLABOR UNION and NELSON

FACTS:

Mistsubishi(MMPC, petitioner)- domestic corporationengaged in the assembly and distribution ofMitsubishi motor vehicles.

Chrysler Philippines Labor Union (CPLU,respondent)- legitimate labor organization and the

duly certified bargaining agent of the hourly-paidregular rand and file employees of MMPC.

Nelson Paras(Respondent)- member of CPLU. Hiswife Cecile Paras, was the President of t he CPSalaried Employees Union (CPSU). Employmenthistory:

o Nelson was first employed as shuttle busdriver on March 19, 1976. Resigned on June16, 1982

o He worked at Saudi Arabia, 1982- 1993o He was re-hired as a welder- fabricator at

the MMPC tooling shop from Oct 3, 1994 Oct 31,1994. On oct 29, 1994,his contractwas renewed from Nov 1, 1994 up to march3, 1995.

o May of 1996, he was re-hired on aprobationary basis as a manufacturingtrainee at the Plant EngineeringMaintenance Department. They were givenorientation of may 15, 1996 re: companysstandards for regularizating etc.

o On May 27, 1996 he started reporting forwork. He was evaluated by his immediatesupervisor after 6 months and received anaverage rating. He was informed by hisimmediate supervisor that based on hisperformance rating he would be regularized.

The managers reviewed and unanimously agreedwith Paras immediate supervisors that Parasperformance was unsatisfactory. Paras was notconsidered for regularization. (contradicting)

On November 26, 1996- paras received a notice oftermination dated Nov 25,1996 for failure to meet therequired company standards for regularization.

Grievance Machinery and Voluntary Arbitration: thedismissal of Paras was valid for failure to pass theprobationary standards of MMPC. VA in favor orMistsubishi/ MMPC

The VA declared that hiring an employee on aprobationary basis to determine his or her fitness forregular employment was in accord with the MMPCsexercise of its management prerogative. The VApointed out that MMPC had complied with therequirement of apprising Paras of the standards ofperformance evaluation and regularization at theinception of his probationary employment. The VAagreed with the MMPC that the termination of Paras

employment was effected prior to the expiratiothe six-month probationary period. As to Paracontention that he was already a regular emplobefore he was dismissed in 1994 considering thahad an accumulated service of eleven (11) montthe VA ruled that Paras delay in filing a complaint forregularization only in 1996, for services rendereOctober 1994 to March 1995, militated agahim. The VA stated that Paras dismissal was basedon the unsatisfactory performance rating givenhim by his direct supervisors Lito LacambacalWilfredo Lopez. The VA also found that the allheated argument between Atty. Carlos S. Cao, Labor Relations Manager of MMPC, and CeParas, the President of CPSU, was irrelevant in termination of Paras services . [15]

Court of Appeals- Paras and CPLU filed a petitifor review under rule 45

OSG- his employment was terminated within tmonths probationary period. Expiration Nov1996. The notice was served on Nov 25,1996. Athat failure of Paras to get a satisfactory performarating justified the termination. Inclusion of months contractual employment as welder fabricdid not qualify him for regular employm

Appointment of a probationary employee to a regstatus is voluntary and discretionary on the parthe employer.

Ruling of CA- used the computation of Civil agreed with Paras and CPLU that 6 monthsequivalent to 180 days, may 27, 1996 to Novem23, 1996. Therefore when he received his notice

November 26, 1996, it was already on his 183rd

or after the expiration of the 6 months probatioperiod. Therefore he became a regular employand he was illegally dismissed for non complia2-notice requirement. CA ordered reinstatement

Issues:

(a) whether or not respondent Paras was alreadyregular employee on November 26, 1996; YES

(b) whether or not he was legally dismissed; NOwas Illegally dismissed

Held:

a. Regularization of employment Yes alreadyregular employee

Indeed, an employer, in the exercise ofmanagement prerogative, may hire an emploon a probationary basis in order to determinefitness to perform work.[29] Under Article 28the Labor Code, the employer must informemployee of the standards for which employment may be considered regularization. Such probationary perunless covered by an apprenticeship agreemeshall not exceed six (6) months from the date

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employee started working. The employeesservices may be terminated for just cause or forhis failure to qualify as a regular employee basedon reasonable standards made known to him .[30]

Respondent Paras was employed as amanagement trainee on a probationary basis.During the orientation conducted on May 15,1996, he was apprised of the standards uponwhich his regularization would be based. Hereported for work on May 27, 1996. As per thecompanys policy, the probationary period was from three (3) monthsto a maximum of six (6) months.

Applying Article 13 of the Civil Code,[31] theprobationary period of six (6) months consists ofone hundred eighty (180) days.[32] This is inconformity with paragraph one, Article 13 of theCivil Code, which provides that the monthswhich are not designated by their names shall beunderstood as consisting of thirty (30) dayseach. The number of months in the probationaryperiod, six (6), should then be multiplied by the

number of days within a month, thirty (30);hence, the period of one hundred eighty (180)days.

As clearly provided for in the last paragraph of Article 13,in computing a period, the first dayshall be excluded and the last dayincluded. Thus, the one hundred eighty (180)days commenced on May 27, 1996, and endedon November 23, 1996. The termination letterdated November 25, 1996 was served onrespondent Paras only at 3:00 a.m. of November26, 1996. He was, by then, already a regular

employee of the petitioner under Article 281 ofthe Labor Code

b. Legality of the Dismissal the ground of hisdismissal was not under the enumeration given bylabor code

An employee cannot be dismissed except for just orauthorized cause as found in the Labor Code andafter due process. The following grounds would

justify the dismissal of an employee:

(a) Serious misconduct or willfuldisobedience by the employee of the lawful

orders of the employer or representative inconnection with his work;

(b) Gross and habitual neglect by theemployee of his duties;

(c) Fraud or willful breach by theemployee of the trust reposed in him by hisemployer or duly authorized representative;

(d) Commission of a crime or offenseby the employee against the person of hisemployer or of any immediate member of hisfamily or his duly authorized representative;and

(e) Other causes analogous to theforegoing.

The ground of his dismissal was allegedunsatisfactory rating arising from poorperformance. The company has the burdenof proof to prove the legality of the dismissaland the validity must be clearly establishedin a manner consistent with due process.

Under Article 282 of the Labor Code,unsatisfactory rating can be a just cause dismissal only if it amounts to gross and habneglect of duties. Gross negligence has be

defined to be the want or absence of even slight cor diligence as to amount to a reckless disregardthe safety of person or property. Grossly negligenthe performance of his duties was not proved.

It was stated in their company policy that afterevaluation they must discussed the results with employee and the department heads. There was compliance with the company policy. At firsimmediate supervisor of Paras informed him thawas average and that he will be regularize. Howein a complete turn around, the petitioner madappear that after the performance evaluation

respondent Paras was reviewed by the departmeand division heads, it was unanimously agreed the respondents perfo rmance rating wunsatisfactory, making him unfit for regularizati

Considering that respondent Paras was dismissed for a just or authorized cause, dismissal from employment illegal. Furthermore, the petitioners failure to informhim of any charges against him deprived him ofprocess. Clearly, the termination of his employmbased on his alleged unsatisfactory performanrating was effected merely to cover up deodorize the illegality of his dismissal.

c. Reinstatement and Backwages there was retrenchmthe unafavorable financial conditions of the petitioner ma

justify reinstatement. Paras is entitled to backwages.

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10. GRANDTEQ INDUSTRIAL v ANNALIZA ESTRELLA

- Sometime in January 2004, Grandteq and Estrellaentered into a Purchase/Assignment of Car

Agreement, whereby the former undertook topurchase a car for Estrella, who would in turn refundthe purchase price to Grandteq in 100 monthlyinstallments. The agreement likewise stated that the"company shall retain the ownership of the car untilthe car loan is fully paid." To complement the termsof the agreement, Estrella executed a PromissoryNote.- When she defaulted in her payments Grandteqinstructed her to leave the car in the office premisies(Sept. 15, 2004)

- Estrella failed to abide- Sept. 18, 2004, Grandteq sent her another

memorandum requiring her to explain heinsubordination

- In her reply memorandum, she asserted that she hadalready paid the 50,000 DP, and Grandteq has novalid cause to deman its surrender.

- Estrella also filed a complaint for recovery of salescommissions, allowances, and other benefits beforethe LA (Sept 17, 2004)

- On Sept. 20, 2004 she filed for leave of absence andsubmitted a medical certificate recommending thatshe go on rest for 3 weeks.

- Grandteq denied the request, nonetheless, she stillwent on leave effective Sept 22 Oct 14.

- On Oct 1, she tries to withdraw her salary but to herdismay it was not remitted.

- On Oct 4, 2004 she amended her complaint toinclude non-payment of wages

- On Oct 15 Estrella returned to work but the securityguard refused her entry upon order of the VP DeLeon

- Estrella thus amended her complaint to includeillegal dismissal and likewise demanded for moraldamages and attorneys fees

- Traversing the complaint, Grandteq averred thatEstrella was validly dismissed because:

o she abandoned her job when she did notreport for work for three weeks despite thedisapproval of her leave application;

o that she committed insubordination when

she failed to obey an official order directingher to return a company vehicle;o that she violated the confidence and trust

reposed in her by the company when shenegotiated in her personal capacity with aclient, Philex Mining Corporation, at the timewhen she was allegedly sick; and

o that she failed to attend the administrativehearing initiated by the company on October29, 2004;

o thus, Grandteq deemed her to have waivedher right to be heard. Estrella was furnishedwith a Notice of Termination22 on November12, 2004, indicating that she was being

dismissed for gross and habitual neglecduty and fraud or willful breach of Grandteq denied any outstanding sacommissions or incentives due Estrella.2

- - La ruled in favor of Strella- NLRC ruled in favor of Gradteq, held that there

a valid cause for dismissing Estrella- On appeal to CA, CA reinstated LA decision

- A judicious review of the records discloses Grandteq failed to prove that Estrella was justifidismissed due to lack of trust and confidence gross and habitual neglect of duty.

- Grandteq attributes loss of trust and confidencthe following acts:

(1) insubordination when Estrella disobea company directive ordering her to retucompany vehicle; and

(2) transacting, in her personal capacity, wa client of Grandteq.

- Insubordination, as a just cause for the dismissaan employee, necessitates the concurrence of least two requisites:

(1) the employee's assailed conduct mhave been willful, that is, characterized wrongful and perverse attitude; and(2) the order violated must have breasonable, lawful, made known to employee, and must pertain to the duwhich he had been engaged to discharge

- Facts of the case do not show presence of tsecond requisite.

- The failure to return the vehicle and Purchase/Assignment of Car Agreement, from wGrandteq derives its claim of ownership over thehad no relation at all to the discharge of respondentsduties as a sales engineer.

- There is likewise no basis for a finding of legitiloss of confidence because Grandteq failed to shthat Estrella held a position of trust and confiden

- Firm is the rule that loss of confidence as a just cafor termination of employment is premised on thethat the employee concerned holds a position of tand confidence, where greater trust is placed management and from whom greater fidelity to is correspondingly expected. The betrayal of trust is the essence of the offense for which employee is penalized

- There was no showing that she betrayed the trreposed to her or that she holds a position of trand confidence.

- As to GROSS NEGLIGENCE, it connotes wacare in the performance of one's duties, whabitual neglect implies repeated failure to perfone's duties for a period of time, depending on

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circumstances. The single or isolated act ofnegligence does not constitute a just cause for thedismissal of an employee.

- SC found no gross and habitual neglect in this case - As to ABANDONMENT, abandonment, as a just and

valid ground for termination, means the deliberate,unjustified refusal of an employee to resume hisemployment. For abandonment to be a valid groundfor dismissal, two (2) elements must be proved:

o the intention of an employee to abandon,o coupled with an overt act from which it may

be inferred that the employee has no moreintention to resume his work.

- Burden of proof is with the employer to show a clearand deliberate intent on the part of the employee todiscontinue employment.

- Estrellas actions after her absences negate an intentto abandon her job. Estrellas application for sick

leave, the Medical Certificate she secured, and theletter from her lawyer that she was going on sickleave and more importantly, her going back to thecompany premises on October 15, 2004 allindicate her intention to resume work after the lapseof the period of her leave of absence. It would be theheight of inequity and injustice to declare Estrella tohave abandoned her job on the mere pretext that hersick leave application was not approved. Especially

so that prior to her dismissal, she had no recordinfraction of company rules for which she could been sanctioned by either warning, reprimandsuspension. Besides, her filing of an illegal dismcase clearly contradicts Grandteqs allegation thatshe abandoned her job .40

- Employer has the burden of proof of establishingthe termination was based on a just cause.

- As t money claims, there is firther need to addevidence to establish the amout hence case wremanded to Labor Arbiter.

- As to liability of Officers. A corporation, be juridical entity, may act only through its direcofficers and employees. Obligations incurredthem, acting as such corporate agents, are not thebut the direct accountabilities of the corporation represent. True, solidary liabilities may at timeincurred but only when exceptional circumstanwarrant such as, generally, in the following case

- the Court has held corporate directors and officsolidarily liable with the corporation for

termination of employment of employees dwithmalice or in bad faith .- - nnns there is no indication that Estrellas dismissal

was effected with malice or bad faith on the paGrandteqs officers. Their liability for Estrellas illegaldismissal, the consequential monetary award arisfrom such dismissal and the other money claawarded in the LAs decision, as correctly affirmedby the CA, could thus only be joint, not solidary

-

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11. LORES REALTY ENTERPRISES INC v PACIA

- Pacia was hired as assistant manager and officer incharge of LREIs accounting department underFinance Administrative Division.

- October 28, 1998, LREIs acting general manager,petitioner Sumulong, through Ms. Julie Ontal,directed Pacia to prepare Check Voucher No. 16477worth P150,000.00 as partial payment for LREIsoutstanding obligation to the Bank of the PhilippineIslands-Family Bank (BPI-FB) . Pacia did notimmediately comply with the instruction. After tworepeated directives, Pacia eventually preparedCheck No. 0000737526 in the amount ofP150,000.00. Later, Sumulong again directed Paciato prepare Check Voucher No. 16478 in the amountof P175,000.00 to settle the balance of LREIsoutstanding indebtedness with BPI-FB. Pacia onceagain was slow in obeying the order. Due to theinsistence of Sumulong, however, Pacia eventuallyprepared Check No. 0000737527 in the amount ofP175,000.00.

- To explain her refusal to immediately follow thedirective, Pacia reasoned out that the funds in LREIs

account were not sufficient to cover the amounts tobe indicated in the checks.- October 29, 1998, Sumulong issued a

memorandum3 ordering Pacia to explain in writingwhy she refused to follow a clear and lawful directive.

- On the same day, Pacia replied in writing andexplained that her initial refusal to prepare thechecks was due to the unavailability of funds to coverthe amounts and that she only wanted to protectLREI from liability under the Bouncing Checks Law.

- On November 6, 1998, Pacia received a notice oftermination5 stating, among others, that she wasbeing dismissed because of her willful disobedience

and their loss of trust and confidence in her.- Pacia then filed a Complaint for Unfair Labor Practicedue to Harassment, Constructive Dismissal, Moraland Exemplary Damages6 against LREI andSumulong. Subsequently, Pacia filed an AmendedComplaint7 to include the charges of illegal dismissaland non-payment of salaries.

- the Labor Arbiter (LA) rendered a decisio n8 findingthat the dismissal of Pacia was for a just and validcause but ordering payment of what was due her.

- On appeal, the NLRC in its March 31, 2000 Decision9 reversed the LAs Decision and found LREI andSumulong guilty of illegal dismissal.

- On November 25, 2005, the CA found no merit in thepetition and dismissed it.

- SC finds no merit in the petition.- ARTICLE 282. Termination by employer .

employer may terminate an employment for anthe following causes:

(a) Serious misconduct or widisobedience by the employee of thlawful orders of his employer representative in connection with hiwork;

(b) Gross and habitual neglect by employee of his duties;

(c) Fraud or willful breach by the emplof the trust reposed in him by his emploor duly authorized representative;

(d) Commission of a crime or offense byemployee against the person of employer or any immediate member offamily or his duly authorized representa

and(e) Other causes analogous to the foregoi

- Pacias initial reluctance to prepare the checks,however, which was seemingly an act of disrespand defiance, was for honest and well intentioreasons. Protecting LREI and Sumulong from liaunder the Bouncing Checks Law18 was foremosher mind. It was not wrongful or willful. Neitherbe considered an obstinate defiance of compaauthority. The Court takes into consideration Pacia, despite her initial reluctance, eventually

prepare the checks on the same day she was tasketo do it.- Pacias apprehension was justified when the check

was dishonored. This clearly affirms her asserthat she was just being cautious and circumspectthe companys sake. Thus, her actuation should notbe construed as improper conduct.

- the Court is guided by the time-honored principleif doubt exists between the evidence presentedthe employer and the employee, the scales of justmust be tilted in favor of the latter. The rulcontroversies between a laborer and his masdistinctly states that doubts reasonably arising f

the evidence, or in the interpretation of agreemeand writing, should be resolved in the former's fa-

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12. SAMAHAN NG MGA MANGGAGAWA SA HYATT v VOLUNTARY ARBITRATOR MAGSALIN and HOTENTERPRISES OF THE PHILS. INC.

- On January 31, 2001, Hyatts General Manager,David C. Pacey, issued a Memorandum 5 informingall hotel employees that hotel security have beeninstructed to conduct a thorough bag inspection andbody frisking in every entrance and exit of the hotel.He enjoined employees to comply therewith. Copiesof the Memorandum were furnished petitioner.

- February 3, 2001, Angelito Caragdag, a waiter at thehotels Cafe Al Fresco restaurant and a director ofthe union, refused to be frisked by the securitypersonnel. The incident was reported to the hotelsHuman Resources Department (HRD), which issueda Memorandum6 to Caragdag on February 5, 2001,requiring him to explain in writing within forty-eight(48) hours from notice why no disciplinary actionshould be taken against him. The following day, onFebruary 6, 2001, Caragdag again refused to befrisked by the security personnel. Thus, on February8, 2001, the HRD issued another Memorandum7 requiring him to explain.

- On February 14, 2001, the HRD imposed onCaragdag the penalty of reprimand for the February3, 2001 incident, which was considered a firstoffense, and suspended him for three days for theFebruary 6, 2001 incident, which was considered asa second offense .8 Both penalties were inaccordance with the hotels Code of Discipline.

- February 22, 2001, when Mike Moral, the managerof Hyatts Cafe Al Fresco and Caragdags immediatesuperior, was about to counsel two staff members,Larry Lacambacal and Allan Alvaro, at the trainingroom, Caragdag suddenly opened the door andyelled at the two with an enraged look. In a disturbingvoice he said, "Ang titigas talaga ng ulo nyo. Sinabi

ko na sa inyo na huwag kayong makikipagusap samanagement habang ongoing pa ang kaso!" (Youare very stubborn. I told you not to speak tomanagement while the case is ongoing!) Moralasked Caragdag what the problem was and informedhim that he was simply talking to his staff. Moral alsotold Caragdag that he did not have the right tointerrupt and intimidate him during his counselingsession with his staff.

- February 23, 2001, Moral issued a Memorandum9 requiring Caragdag to explain his actions in thetraining room. Caragdag submitted his writtenexplanation on February 25, 200110 narrating that hewas informed by someone that Lacambacal and

Alvaro were requesting for his assistance becauseMoral had invited them to the training room.Believing that he should advise the two that theyshould be accompanied by a union officer to anyinquisition, he went to the training room. However,before he could enter the door, Moral blocked him.Thus, he told Lacambacal and Alvaro that theyshould be assisted by a union representative beforegiving any statement to management. Caragdagalso prayed that Moral be investigated for harassingunion officers and union members.

- February 28, 2001, Moral found the explanationsunsatisfactory. In a Memorandum11 issued on the

same date, Moral held Caragdag liable for OffenSubject to Disciplinary Action (OSDA) 3.01 ohotels Code of Discipline, i.e., "threatening,intimidating, coercing, and provoking to a fightsuperior for reasons directly connected with discharge of official duty." Thus, Caragdag imposed the penalty of seven days suspensionaccordance with the hotels Code of Discipline.

- March 2, 2001, Caragdag committed anoinfraction. At 9:35 a.m. on the said date, Caragleft his work assignment during official hours wiprior permission from his Department Head. He required to submit an explanation, but explanation12 he submitted was founsatisfactory. On March 17, 2001, Moral foCaragdag liable for violating OSDA 3.07, "leaving work assignment during official wohours without prior permission from the departmhead or immediate superior," and suspended himthree days.

- Because of the succession of infractions committed, the HRD also required Caragdagexplain on May 11, 2001 why the hotels OSDA 4.32(Committing offenses which are penalized with t[3] suspensions during a 12-month period) shonot be enforced against him.14 An investigation bwas formed after receipt of Caragdags writtenexplanation, and the matter was set for hearingMay 19, 2001. However, despite notice of scheduled hearing, both Caragdag and the UnPresident failed to attend. Thereafter, investigating board resolved on the said datedismiss Caragdag for violation of OSDA 4.Caragdag appealed but the investigating bo