[G.R. No. 164662, February 18, 2013]
MARIA LOURDES C. DE JESUS, Petitioner, v. HON. RAUL T. AQUINO,PRESIDING COMMISSIONER, NATIONAL LABOR RELATIONS COMMISSION, SECOND DIVISION, QUEZON CITY,AND SUPERSONIC SERVICES, INC., Respondents.
[G.R. NO. 165787]
SUPERSONIC SERVICES, INC., Petitioner, v. MARIA LOURDES C. DE JESUS, Respondents.
D E C I S I O N
On February 20, 2002, petitioner Ma. Lourdes De Jesus (De Jesus for brevity) filed with the Labor Arbiter a complaint for illegal dismissal against private respondents Supersonic Services Inc., (Supersonic for brevity), Pakistan Airlines, Gil Puyat, Jr. and Divina Abad Santos praying for the payment of separation pay, full backwages, moral and exemplary damages, etc.
De Jesus alleged that: she was employed by Supersonic since February 1976 until her illegal dismissal of March 15, 2001; from 1976 to 1992, she held the position of reservation staff, and from 1992 until her illegal dismissal on March 15, 2001, she held the position of Sales Promotion Officer where she solicited clients for Supersonic and sold plane tickets to various travel agencies on credit; on March 12, 2001, she had an emergency hysterectomy operation preceded by continuous bleeding; she stayed at the Makati Medical Center for three (3) days and applied for a sixty-(60) day leave in the meantime; on June 1, 2001, she went to Supersonic and found the drawers of her desk opened and her personal belongings packed, without her knowledge and consent; while there, Divina Abad Santos (Santos for brevity), the company’s general manager, asked her to sign a promissory note and directed her secretary, Cora Malubay (Malubay for brevity) not to allow her to leave unless she execute a promissory note; she was later forced to execute a promissory note which she merely copied from the draft prepared by Santos and Malubay; she was also forced to indorse to Supersonic her SSS check in the amount of P25,000.00 which represents her benefits from the hysterectomy operation; there was no notice and hearing nor any opportunity given her to explain her side prior to the termination of her employment; Supersonic even filed a case for Estafa against her for her alleged failure to remit collections despite the fact that she had completely remitted all her collections; and the termination was done in bad faith and in violation of due process.
Supersonic countered that: as Sales Promotion Officer, De Jesus was fully authorized to solicit clients and receive payments for and in its behalf, and as such, she occupied a highly confidential and financially sensitive position in the company; De Jesus was able to solicit several ticket purchases for Pakistan International Airlines (PIA) routed from Manila to various destinations abroad and received all payments for the PIA tickets in its behalf; for the period starting May 30, 2000 until September 28, 2000, De Jesus issued PIA tickets to Monaliza Placement Agency, a client under her special solicitation and account, in the amount of U.S.$15,085.00; on January 24, 2001, the company’s general manager sent a memorandum to De Jesus informing her of the official endorsement of collectibles from clients under her account; in March 2001, another memorandum was issued to De Jesus reminding her to collect payments of accounts guaranteed by her and which had been past due since the year 2000; based on the company records, an outstanding balance of U.S.$36,168.39 accumulated under the account of De Jesus; after verifications with its clients, it discovered that the amount of U.S.$36, 168.39 were already paid to De Jesus but this was not turned over and duly accounted for by her; hence, another memorandum was issued to De Jesus directing her to explain in writing why she should not be dismissed for cause for failure to account for the total amount of U.S.$36, 168.39; De Jesus was informed that her failure to explain in writing shall be construed that she misappropriated said amount for her own use and benefit to the damage of the company; De Jesus was likewise verbally notified of the company’s intention to dismiss her for cause; after due investigation and confrontation, De Jesus admitted that she received the U.S.$36,168.39 from their clients and even executed a promissory note in her own handwriting acknowledging her obligation; she was fully aware of her dismissal and even obligated herself to offset her obligation with any amount she would receive from her retirement; when De Jesus failed to comply with her promise to settle her obligation, a demand letter was sent to her; because of her persistent failure to settle the unremitted collections, it was constrained to suspend her as a precautionary measure and to protect its interests; despite demands, De Jesus failed to fulfill her promise, hence, a criminal case for estafa was filed against her; and in retaliation to the criminal case filed against her, she filed this illegal dismissal case.3
Records show that pursuant to a Memorandum dated May 12, 2001, complainant was required to explain in writing why she should not be dismissed from employment for her failure to account for the cash collections in her custody (Records, p. 37). In a letter dated June 1, 2001, complainant acknowledged her failure to effect a turn-over of the amount of US$36,168.39 to the respondent (Records, p. 40). More than this, she offered no explanation for her failure to immediately account for her collections. Further, her allegation of duress may not be accorded credence, there being no evidence as to the circumstances under which her consent was allegedly vitiated. Having been given the opportunity to explain her side, complainant may not successfully claim that she was denied due process. Further, her admission and other related evidence, particularly the finding of a prima facie case for estafa against her, and corroborative statements from respondent’s client, sufficiently controvert complainant’s assertion that no just cause existed for the dismissal.
WHEREFORE, premises considered, the decision under review is AFFIRMED, and complainant’s appeal, DISMISSED, for lack of merit.
The petition is partly meritorious.
In termination of employment based on just cause , it is not enough that the employee is guilty of misfeasance towards his employer, or that his continuance in service is patently inimical to the employer’s interest. The law requires the employer to furnish the employee concerned with two written notices – one, specifying the ground or grounds for termination and giving said employee reasonable opportunity within which to explain his side, and another, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. In addition to this, a hearing or conference is also required, whereby the employee may present evidence to rebut the accusations against him.
There appears to be no dispute upon the fact that De Jesus failed to remit and account for some of her collections. This she admitted and explained in her letters dated April 5, 2001 and May 15, 2001 to Santos, the company’s general manager. Without totally disregarding her allegations of duress in executing the promissory note, the facts disclose therein also coincide with the fact that De Jesus was somehow remiss in her duties. Considering that she occupied a confidential and sensitive position in the company, the circumstances presented fairly justified her termination from employment based on just cause. De Jesus’ failure to fully account her collections is sufficient justification for the company to lose its trust and confidence in her. Loss of trust and confidence as a ground for dismissing an employee does not require proof beyond reasonable doubt. It is sufficient if there is “some basis” for such loss of confidence, or if the employer has reasonable grounds to believe that the employee concerned is responsible for the misconduct, as to be unworthy of the trust and confidence demanded by his position.
Nonetheless, while this Court is inclined to rule that De Jesus’ dismissal was for just cause, the manner by which the same was effected does not comply with the procedure outlined under the Labor Code and as enunciated in the landmark case of Serrano v. NLRC.
The evidence on record is bereft of any indicia that the two written notices were furnished to De Jesus prior to her dismissal. The various memoranda given her were not the same notices required by law, as they were mere internal correspondence intended to remind De Jesus of her outstanding accountabilities to the company. Assuming for the sake of argument that the memoranda furnished to De Jesus may have satisfied the minimum requirements of due process, still, the same did not satisfy the notice requirement under the Labor Code because the intention to sever the employee’s services must be made clear in the notice. Such was not apparent from the memoranda. As the Supreme Court held in Serrano, the violation of the notice requirement is not strictly a denial of due process. This is because such notice is precisely intended to enable the employee not only to prepare himself for the legal battle to protect his tenure of employment, but also to find other means of employment and ease the impact of the loss of his job and, necessarily, his income.
Conformably with the doctrine laid down in Serrano v. NLRC, the dismissal of De Jesus should therefore be struck as ineffectual.
WHEREFORE, premises considered, the Resolutions dated July 31, 2003 and October 30, 2003 of the NLRC, Second Division in NLRC NCR 30-02-01058-02 (CA NO. 033714-02) are hereby MODIFIED, in that while the dismissal is hereby held to be valid, the same must declared ineffectual. As a consequence thereof, Supersonic is hereby required to pay petitioner Maria Lourdes De Jesus full backwages from the time her employment was terminated up to the finality of this decision.
- The Honorable Court of Appeals erred in finding that respondent Supersonic is liable only on the backwages and not for the damages prayed for.
- The Honorable Court of Appeals erred in finding that the dismissal was valid and at the same time, declaring it ineffectual.9
- Respondent Court of Appeals committed serious errors which are not in accordance with law and applicable decisions of the Honorable Supreme Court when it concluded that the two-notice requirement has not been complied with when respondent De Jesus was terminated from service.
- Respondent Court of Appeals committed serious errors by concluding that the Serrano Doctrine applies squarely to the facts and legal issues of the present case which are contrary to the law and jurisprudence.
- Serrano Doctrine has already been abandoned in the case of Agabon v. NLRC, which is prevailing and landmark doctrine applicable in the resolution of the present case.
- Respondent Court of Appeals committed serious errors by disregarding the law and jurisprudence when it awarded damages to private respondent which is excessive and unduly penalized petitioner SSI.10
Article 282.Termination by employer. - An employer may terminate an employment for any of the following causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and
(e) Other causes analogous to the foregoing.
Article 277. Miscellaneous provisions.–xxx
x x x x
(b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without prejudice to the right of the worker to contest the validity or legality of his dismissal by filing a complaint with the regional branch of the National Labor Relations Commission. The burden of proving that the termination was for a valid or authorized cause shall rest on the employer. The Secretary of the Department of Labor and Employment may suspend the effects of the termination pending resolution of the dispute in the event of a prima facie finding by the appropriate official of the Department of Labor and Employment before whom such dispute is pending that the termination may cause a serious labor dispute or is in implementation of a mass lay-off.14
x x x x
Memorandum dated March 26, 2001
26 March 2001
TO : MA LOURDES DE JESUS SALES PROMOTION OFFICER FROM : DIVINA S. ABAD SANTOS SUBJECT : PAST DUE ACCOUNTS
We have repeatedly reminded you to collect payment of accounts guaranteed by you and which have been past due since last year. You have assured us that these will be settled by the end of February 2001.
Our books show, that as of today, March 26, 2001, the following accounts have outstanding balances:
Wafa $6,585 Monaliza/Ragab 4,326.39 Salah 1,950 Jerico 1,300 Rafat 4,730 Mahmood/Alhirsh 3,205 Amina 2,000 MMML 1,653 RDRI 361 HMD 2,100 Amru 1,388 Iyad Ali 97 Ali 740 Maher 675 Sharikat 350 Imad 905 Rubies 2,678 Adel 1,125 $36,168.39
Please give us an updated report on your collection efforts and the status of each of the above accounts to enable us to take necessary actions. This would be submitted on or before April 2, 2001
(SGD) DIVINA ABAD SANTOS
Memorandum dated May 12, 2001
12 May 2001
TO : MA LOURDES DE JESUS SALES PROMOTION OFFICER FROM : DIVINA S. ABAD SANTOS
SUBJECT : PAST DUE ACCOUNTS
You are asked to refer to my memorandum dated 26 March 2001. We were informed that the following accounts have been paid to you but not accounted/turned over to the office:You are hereby directed to explain in writing within 72 hours from receipt of this memorandum, why you should not be dismissed for cause for failure to account for above amounts.
NAME AMOUNTS Wafa $6,585 Monaliza/Ragab 4,326.39 Salah 1,950 Jerico 1,300 Rafat 4,730 Mahmood/Alhirsh 3,205 Amina 2,000 MMML 1,653 RDRI 361 HMD 2,100 Amru 1,388 Iyad Ali 97 Ali 740 Maher 675 Sharikat 350 Imad 905 Rubies 2,678 Adel 1,125 $36,168.39
By your failure to explain in writing the above accountabilities, within the set deadline, we shall assume that you have misappropriated the same for your own use and benefit to the damage of the office.
(SGD.) DIVINA S. ABAD SANTOS
The evidence on record is bereft of any indicia that the two written notices were furnished to De Jesus prior to her dismissal. The various memoranda given her were not the same notices required by law, as they were mere internal correspondences intended to remind De Jesus of her outstanding accountabilities to the company. Assuming for the sake of argument that the memoranda furnished to De Jesus may have satisfied the minimum requirements of due process, still, the same did not satisfy the notice requirement under the Labor Code because the intention to sever the employee’s services must be made clear in the notice. Such was not apparent from the memoranda. As the Supreme Court held in Serrano, the violation of the notice requirement is not strictly a denial of due process. This is because such notice is precisely intended to enable the employee not only to prepare himself for the legal battle to protect his tenure of employment, but also to find other means of employment and ease the impact of the loss of his job and, necessarily, his income.
Conformably with the doctrine laid down in Serrano v. NLRC, the dismissal of De Jesus should therefore be struck (down) as ineffectual.21
x x x, with respect to dismissals for cause under Art. 282, if it is shown that the employee was dismissed for any of the just causes mentioned in said Art. 282, then, in accordance with that article, he should not be reinstated. However, he must be paid backwages from the time his employment was terminated until it is determined that the termination of employment is for a just cause because the failure to hear him before he is dismissed renders the termination of his employment without legal effect.
WHEREFORE, the petition is GRANTED and the resolution of the National Labor Relations Commission is MODIFIED by ordering private respondent Isetann Department Store, Inc. to pay petitioner separation pay equivalent to one (1) month pay for every year of service, his unpaid salary, and his proportionate 13th month pay and, in addition, full backwages from the time his employment was terminated on October 11, 1991 up to the time the decision herein becomes final. For this purpose, this case is REMANDED to the Labor Arbiter for computation of the separation pay, backwages, and other monetary awards to petitioner.
1Rollo (G.R. No. 164662), pp. 20-26; penned by Associate Justice Remedios A. Salazar-Fernando, with Associate Justice Cancio C. Garcia (later Presiding Justice, and a Member of the Court, but now retired) and Associate Justice Hakim S. Abdulwahid concurring.
2 G.R. No. 117040, January 27, 2000, 323 SCRA 445.
3Rollo (G.R. No. 164662), pp. 21-23.
4Rollo (G.R. No. 165787), pp. 149-154.
5 Id.at 175-178.
6 Id.at 194-195.
7Supra note 1, at 24-26.
8Rollo (G.R. No. 165787),p. 339.
9Rollo (G.R. No. 164662), p. 12.
10Rollo (G.R. No. 165787), pp. 31-32.
11 Supra note 1.
12 Lopez v. Bodega City, G.R. No. 155731, September 3, 2007, 532 SCRA 56, 64; Tiu v. Pasaol, Sr., G.R. No. 139876, April 30, 2003, 402 SCRA 312, 319; Manila Water Company, Inc. v. Pena, G.R. No. 158255, July 8, 2004, 434 SCRA 53, 58-59.
13Caingat v. National Labor Relations Commission, G.R. No. 154308, March 10, 2005, 453 SCRA 142,151-152; Central Pangasinan Electric Cooperative, Inc. v. Macaraeg, G.R. No. 145800, January 22, 2003, 395 SCRA 720, 727; Quezon Electric Cooperative v. NLRC, G.R. Nos. 79718-22, April 12, 1989, 172 SCRA 88, 94.
14 As amended by Section 33, Republic Act No. 6715, March 21, 1989.
15 Section 2. Security of Tenure. – xxx
x x x x
(d) In all cases of termination of employment, the following standards of due process shall be substantially observed:
For termination of employment based on just causes as defined in Article 282 of the Labor Code:
(i) A written notice served on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity within which to explain his side.
(ii) A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him.
(iii) A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.
x x x x
16 Section 7. Termination of employment by employer. – The just causes for terminating the services of an employee shall be those provided in Article 282 of the Code. The separation from work of an employee for a just cause does not entitle him to the termination pay provided in Code, without prejudice, however, to whatever rights, benefits and privileges he may have under the applicable individual or collective bargaining agreement with the employer or voluntary employer policy or practice.
17Lim v. National Labor Relations Commission, G.R. No. 118434, July 26, 1996, 259 SCRA 485, 498.
18Colegio de San Juan de Letran–Calamba v. Villas, G.R. No. 137795, March 26, 2003, 399 SCRA 550, 559; Equitable Banking Corporation v. NLRC, G.R. No. 102467, June 13, 1997, 273 SCRA 352, 378.
19Rollo (G.R. No. 165787), p. 120.
20 Id. at 121.
21Supra note 1, at 25.
22 G.R. No. 158693, November 17, 2004, 442 SCRA 573.
23 Supra note 2, at 476.
24Columbia Pictures Entertainment, Inc. v. Court of Appeals, G.R. No. 111267, September 20, 1996, 262 SCRA 219, 225; Columbia Pictures, Inc. v. Court of Appeals, G.R. No. 110318, August 28, 1996, 261 SCRA 144, 167; People v. Jabinal, No. L-30061, February 27, 1974, 55 SCRA 607, 612; Unciano Paramedical College, Inc. v. Court of Appeals, G.R. No. 100335, April 7, 1993, 221 SCRA 285, 293; Philippine Constitution Association v. Enriquez, G.R. No. 113888, August 19, 1994, 235 SCRA 506, 552.
25De Agbayani v. Philippine National Bank, No. L-23127, April 29, 1971, 38 SCRA 429, 435.
26 See Co v. Court of Appeals, G.R. No. 100776, October 28, 1993, 227 SCRA 444, 448.
27Culili v. Eastern Telecommunications Philippines, Inc., G.R. No. 165381, February 9, 2011, 642 SCRA 338, 363; RTG Construction, Inc. v. Facto, G.R. No. 163872, December 21, 2009, 608 SCRA 615, 623; Coca-Cola Bottlers Philippines, Inc. v. Garcia, G.R. No. 159625, January 31, 2008, 543 SCRA 364, 374; Magro Placement and General Services v. Hernandez, G.R. No. 156964, July 4, 2007, 526 SCRA 408, 417-418; King of Kings Transport, Inc. v. Mamac, G.R. No. 166208, June 29, 2007, 526 SCRA 116, 127; Aladdin Transit Corporation v. Court of Appeals, G.R. No. 152123, June 21, 2005, 460 SCRA 468, 472; Jaka Food Processing Corporation v. Pacot, G.R. No. 151378, March 28, 2005, 454 SCRA 119, 124.
28Supra note 22, at 614.
29 Id. at 617.
30 E.g., Culili v. Eastern Telecommunications Phils., Inc., supra note 27.