Armand,
My expectations is [sic] that GX Shuttles should be 80% full by the 3rd week (August 5) after launch (July 15). Pls. make that happen. It has been more than a month since you came in. I am expecting sales to be pumping in by now. Thanks.
Nonong
PhP 4,988.18 (salary for the September 25, 2004 payroll)Earlier, however, or on October 4, 2004, Aliling filed a Complaint17 for illegal dismissal due to forced resignation, nonpayment of salaries as well as damages with the NLRC against WWWEC. Appended to the complaint was Alilings Affidavit dated November 12, 2004,18 in which he stated: “5. At the time of my engagement, respondents did not make known to me the standards under which I will qualify as a regular employee.”
1,987.28 (salary for 4 days in October 2004)
-------------
PhP 6,975.46 Total
Additionally, upon the effectivity of your probation, you and your immediate superior are required to jointly define your objectives compared with the job requirements of the position. Based on the pre-agreed objectives, your performance shall be reviewed on the 3rd month to assess your competence and work attitude. The 5th month Performance Appraisal shall be the basis in elevating or confirming your employment status from Probationary to Regular.
Failure to meet the job requirements during the probation stage means that your services may be terminated without prior notice and without recourse to separation pay.
The grounds upon which complainants dismissal was based did not conform not only the standard but also the compliance required under Article 281 of the Labor Code, Necessarily, complainants termination is not justified for failure to comply with the mandate the law requires. Respondents should be ordered to pay salaries corresponding to the unexpired portion of the contract of employment and all other benefits amounting to a total of THIRTY FIVE THOUSAND EIGHT HUNDRED ELEVEN PESOS (P35,811.00) covering the period from October 6 to December 7, 2004, computed as follows:
Unexpired Portion of the Contract: Basic Salary P13,000.00 Transportation 3,000.00 Clothing Allowance 800.00 500.00 -------------- P17,300.00 10/06/04 - 12/07/04 P17,300.00 x 2.7 mos. = P35,811.00
Complainants 13th month pay proportionately for 2004 was not shown to have been paid to complainant, respondent be made liable to him therefore computed at SIX THOUSAND FIVE HUNDRED THIRTY TWO PESOS AND 50/100 (P6,532.50).
For engaging the services of counsel to protect his interest, complainant is likewise entitled to a 10% attorneys fees of the judgment amount. Such other claims for lack of basis sufficient to support for their grant are unwarranted.
WHEREFORE, judgment is hereby rendered ordering respondent company to pay complainant Armando Aliling the sum of THIRTY FIVE THOUSAND EIGHT HUNDRED ELEVEN PESOS (P35,811.00) representing his salaries and other benefits as discussed above.
Respondent company is likewise ordered to pay said complainant the amount of TEN THOUSAND SEVEN HUNDRED SIXTY SIX PESOS AND 85/100 ONLY (10.766.85) representing his proportionate 13th month pay for 2004 plus 10% of the total judgment as and by way of attorneys fees.
Other claims are hereby denied for lack of merit. (Emphasis supplied.)
WHEREFORE, the petition is PARTLY GRANTED. The assailed Resolutions of respondent (Third Division) National Labor Relations Commission are AFFIRMED, with the following MODIFICATION/CLARIFICATION: Respondents Wide Wide World Express Corp. and its officers, Jose B. Feliciano, Manuel F. San Mateo III and Joseph R. Lariosa, are jointly and severally liable to pay petitioner Armando Aliling: (A) the sum of Forty Two Thousand Three Hundred Thirty Three & 50/100 (P42,333.50) as the total money judgment, (B) the sum of Four Thousand Two Hundred Thirty Three & 35/100 (P4,233.35) as attorneys fees, and (C) the additional sum equivalent to one-half (1/2) month of petitioners salary as separation pay.
SO ORDERED.24 (Emphasis supplied.)
A. The failure of the Court of Appeals to order reinstatement (despite its finding that petitioner was illegally dismissed from employment) is contrary to law and applicable jurisprudence.
B. The failure of the Court of Appeals to award backwages (even if it did not order reinstatement) is contrary to law and applicable jurisprudence.
C. The failure of the Court of Appeals to award moral and exemplary damages (despite its finding that petitioner was dismissed to prevent the acquisition of his regular status) is contrary to law and applicable jurisprudence.25
Be that as it may, there appears no showing that indeed the said September 20, 2004 Memorandum addressed to complainant was received by him. Moreover, complainants tasked where he was assigned was a new developed service. In this regard, it is noted:
“Due process dictates that an employee be apprised beforehand of the conditions of his employment and of the terms of advancement therein. Precisely, implicit in Article 281 of the Labor Code is the requirement that reasonable standards be previously made known by the employer to the employee at the time of his engagement (Ibid, citing Sameer Overseas Placement Agency, Inc. vs. NLRC, G.R. No. 132564, October 20, 1999).28
Petitioner was regularized from the time of the execution of the employment contract on June 11, 2004, although respondent company had arbitrarily shortened his tenure. As pointed out, respondent company did not make known the reasonable standards under which he will qualify as a regular employee at the time of his engagement. Hence, he was deemed to have been hired from day one as a regular employee.30 (Emphasis supplied.)
Conversely, an employer is deemed to substantially comply with the rule on notification of standards if he apprises the employee that he will be subjected to a performance evaluation on a particular date after his hiring. We agree with the labor arbiter when he ruled that:In the instant case, petitioner cannot successfully say that he was never informed by private respondent of the standards that he must satisfy in order to be converted into regular status. This rans (sic) counter to the agreement between the parties that after five months of service the petitioners performance would be evaluated. It is only but natural that the evaluation should be made vis-à-vis the performance standards for the job. Private respondent Trifona Mamaradlo speaks of such standard in her affidavit referring to the fact that petitioner did not perform well in his assigned work and his attitude was below par compared to the companys standard required of him. (Emphasis supplied.)
Article 281 of the Labor Code
ART. 281. Probationary employment. - Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee. (Emphasis supplied.)
Section 6(d) of the Implementing Rules of Book VI, Rule VIII-A of the Labor Code
Sec. 6. Probationary employment. - There is probationary employment where the employee, upon his engagement, is made to undergo a trial period where the employee determines his fitness to qualify for regular employment, based on reasonable standards made known to him at the time of engagement.
Probationary employment shall be governed by the following rules:
x x x x
(d) In all cases of probationary employment, the employer shall make known to the employee the standards under which he will qualify as a regular employee at the time of his engagement. Where no standards are made known to the employee at that time, he shall be deemed a regular employee. (Emphasis supplied.)
Settled is the rule that the findings of the Labor Arbiter, when affirmed by the NLRC and the Court of Appeals, are binding on the Supreme Court, unless patently erroneous. It is not the function of the Supreme Court to analyze or weigh all over again the evidence already considered in the proceedings below. The jurisdiction of this Court in a petition for review on certiorari is limited to reviewing only errors of law, not of fact, unless the factual findings being assailed are not supported by evidence on record or the impugned judgment is based on a misapprehension of facts.32
Finally, the CA affirmed the ruling of the NLRC and adopted as its own the latter's factual findings. Long-established is the doctrine that findings of fact of quasi-judicial bodies x x x are accorded respect, even finality, if supported by substantial evidence. When passed upon and upheld by the CA, they are binding and conclusive upon this Court and will not normally be disturbed. Though this doctrine is not without exceptions, the Court finds that none are applicable to the present case.
Additionally, upon the effectivity of your probation, you and your immediate superior are required to jointly define your objectives compared with the job requirements of the position. Based on the pre-agreed objectives, your performance shall be reviewed on the 3rd month to assess your competence and work attitude. The 5th month Performance Appraisal shall be the basis in elevating or confirming your employment status from Probationary to Regular.
Failure to meet the job requirements during the probation stage means that your services may be terminated without prior notice and without recourse to separation pay. (Emphasis supplied.)
(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. (Emphasis supplied)
We cannot but agree with PEPSI that “gross inefficiency” falls within the purview of “other causes analogous to the foregoing,” this constitutes, therefore, just cause to terminate an employee under Article 282 of the Labor Code. One is analogous to another if it is susceptible of comparison with the latter either in general or in some specific detail; or has a close relationship with the latter. “Gross inefficiency” is closely related to “gross neglect,” for both involve specific acts of omission on the part of the employee resulting in damage to the employer or to his business. In Buiser vs. Leogardo, this Court ruled that failure to observed prescribed standards to inefficiency may constitute just cause for dismissal. (Emphasis supplied.)
An employer is entitled to impose productivity standards for its workers, and in fact, non-compliance may be visited with a penalty even more severe than demotion. Thus,[t]he practice of a company in laying off workers because they failed to make the work quota has been recognized in this jurisdiction. (Philippine American Embroideries vs. Embroidery and Garment Workers, 26 SCRA 634, 639). In the case at bar, the petitioners' failure to meet the sales quota assigned to each of them constitute a just cause of their dismissal, regardless of the permanent or probationary status of their employment. Failure to observe prescribed standards of work, or to fulfill reasonable work assignments due to inefficiency may constitute just cause for dismissal. Such inefficiency is understood to mean failure to attain work goals or work quotas, either by failing to complete the same within the allotted reasonable period, or by producing unsatisfactory results. This management prerogative of requiring standards may be availed of so long as they are exercised in good faith for the advancement of the employer's interest. (Emphasis supplied.)
Could not quantify level of performance as he as was tasked to handle a new product (GX). Revenue report is not yet administered by IT on a month-to-month basis. Moreover, this in a way is an experimental activity. Practically you have a close monitoring with Armand with regards to his performance. Your assessment of him would be more accurate.
Section 2. Standard of due process: requirements of notice. — In all cases of termination of employment, the following standards of due process shall be substantially observed.I. For termination of employment based on just causes as defined in Article 282 of the Code:In case of termination, the foregoing notices shall be served on the employees last known address.
(a) A written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side;
(b) A hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him; and
(c) A written notice [of] termination served on the employee indicating that upon due consideration of all the circumstance, grounds have been established to justify his termination.
(1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five calendar days from receipt of the notice xxxx Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice. Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 288 [of the Labor Code] is being charged against the employees
(2) After serving the first notice, the employees should schedule and conduct a hearing or conference wherein the employees will be given the opportunity to (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice x x x.
(3) After determining that termination is justified, the employer shall serve the employees a written notice of termination indicating that: (1) all the circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment. (Emphasis in the original.)
Article 279 of the Labor Code, as amended by Section 34 of Republic Act 6715 instructs:
Art. 279. Security of Tenure. - In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (Emphasis supplied)
The basis for the payment of backwages is different from that for the award of separation pay. Separation pay is granted where reinstatement is no longer advisable because of strained relations between the employee and the employer. Backwages represent compensation that should have been earned but were not collected because of the unjust dismissal. The basis for computing backwages is usually the length of the employee's service while that for separation pay is the actual period when the employee was unlawfully prevented from working.
As to how both awards should be computed, Macasero v. Southern Industrial Gases Philippines instructs:[T]he award of separation pay is inconsistent with a finding that there was no illegal dismissal, for under Article 279 of the Labor Code and as held in a catena of cases, an employee who is dismissed without just cause and without due process is entitled to backwages and reinstatement or payment of separation pay in lieu thereof:Thus, an illegally dismissed employee is entitled to two reliefs: backwages and reinstatement. The two reliefs provided are separate and distinct. In instances where reinstatement is no longer feasible because of strained relations between the employee and the employer, separation pay is granted. In effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable, and backwages.Velasco v. National Labor Relations Commission emphasizes:
The normal consequences of respondents illegal dismissal, then, are reinstatement without loss of seniority rights, and payment of backwages computed from the time compensation was withheld up to the date of actual reinstatement. Where reinstatement is no longer viable as an option, separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative. The payment of separation pay is in addition to payment of backwages. x x x
The accepted doctrine is that separation pay may avail in lieu of reinstatement if reinstatement is no longer practical or in the best interest of the parties. Separation pay in lieu of reinstatement may likewise be awarded if the employee decides not to be reinstated. (emphasis in the original; italics supplied)
Under the doctrine of strained relations, the payment of separation pay is considered an acceptable alternative to reinstatement when the latter option is no longer desirable or viable. On one hand, such payment liberates the employee from what could be a highly oppressive work environment. On the other hand, it releases the employer from the grossly unpalatable obligation of maintaining in its employ a worker it could no longer trust.
Strained relations must be demonstrated as a fact, however, to be adequately supported by evidence — substantial evidence to show that the relationship between the employer and the employee is indeed strained as a necessary consequence of the judicial controversy.
In the present case, the Labor Arbiter found that actual animosity existed between petitioner Azul and respondent as a result of the filing of the illegal dismissal case. Such finding, especially when affirmed by the appellate court as in the case at bar, is binding upon the Court, consistent with the prevailing rules that this Court will not try facts anew and that findings of facts of quasi-judicial bodies are accorded great respect, even finality. (Emphasis supplied.)
Thus, in lieu of reinstatement, it is but proper to award petitioner separation pay computed at one-month salary for every year of service, a fraction of at least six (6) months considered as one whole year. In the computation of separation pay, the period where backwages are awarded must be included. (Emphasis supplied.)
Moral damages are awarded if the following elements exist in the case: (1) an injury clearly sustained by the claimant; (2) a culpable act or omission factually established; (3) a wrongful act or omission by the defendant as the proximate cause of the injury sustained by the claimant; and (4) the award of damages predicated on any of the cases stated Article 2219 of the Civil Code. In addition, the person claiming moral damages must prove the existence of bad faith by clear and convincing evidence for the law always presumes good faith. It is not enough that one merely suffered sleepless nights, mental anguish, and serious anxiety as the result of the actuations of the other party. Invariably such action must be shown to have been willfully done in bad faith or with ill motive. Bad faith, under the law, does not simply connote bad judgment or negligence. It imports a dishonest purpose or some moral obliquity and conscious doing of a wrong, a breach of a known duty through some motive or interest or ill will that partakes of the nature of fraud. (Emphasis supplied.)
According to jurisprudence, “basic is the principle that good faith is presumed and he who alleges bad faith has the duty to prove the same.” By imputing bad faith to the actuations of ETPI, Culili has the burden of proof to present substantial evidence to support the allegation of unfair labor practice. Culili failed to discharge this burden and his bare allegations deserve no credit.
A dismissal may be contrary to law but by itself alone, it does not establish bad faith to entitle the dismissed employee to moral damages. The award of moral and exemplary damages cannot be justified solely upon the premise that the employer dismissed his employee without authorized cause and due process.
By Order of September 5, 2007, the Labor Arbiter denied respondents motion to quash the 3rd alias writ. Brushing aside respondents contention that his liability is merely joint, the Labor Arbiter ruled:
Such issue regarding the personal liability of the officers of a corporation for the payment of wages and money claims to its employees, as in the instant case, has long been resolved by the Supreme Court in a long list of cases [A.C. Ransom Labor Union-CLU vs. NLRC (142 SCRA 269) and reiterated in the cases of Chua vs. NLRC (182 SCRA 353), Gudez vs. NLRC (183 SCRA 644)]. In the aforementioned cases, the Supreme Court has expressly held that the irresponsible officer of the corporation (e.g. President) is liable for the corporations obligations to its workers. Thus, respondent Yupangco, being the president of the respondent YL Land and Ultra Motors Corp., is properly jointly and severally liable with the defendant corporations for the labor claims of Complainants Alba and De Guzman. x x x
x x x x
As reflected above, the Labor Arbiter held that respondents liability is solidary.
There is solidary liability when the obligation expressly so states, when the law so provides, or when the nature of the obligation so requires. MAM Realty Development Corporation v. NLRC, on solidary liability of corporate officers in labor disputes, enlightens:
x x x A corporation being a juridical entity, may act only through its directors, officers and employees. Obligations incurred by them, acting as such corporate agents are not theirs but the direct accountabilities of the corporation they represent. True solidary liabilities may at times be incurred but only when exceptional circumstances warrant such as, generally, in the following cases:1. When directors and trustees or, in appropriate cases, the officers of a corporation:
(a) vote for or assent to patently unlawful acts of the corporation;
(b) act in bad faith or with gross negligence in directing the corporate affairs;
x x x x
In labor cases, for instance, the Court has held corporate directors and officers solidarily liable with the corporation for the termination of employment of employees done with malice or in bad faith.
In Rutaquio v. National Labor Relations Commission, this Court held that:
It is settled that in actions for recovery of wages or where an employee was forced to litigate and, thus, incur expenses to protect his rights and interest, the award of attorneys fees is legally and morally justifiable.
In Producers Bank of the Philippines v. Court of Appeals this Court ruled that:
Attorneys fees may be awarded when a party is compelled to litigate or to incur expenses to protect his interest by reason of an unjustified act of the other party.
However, the award of attorneys fee is warranted pursuant to Article 111 of the Labor Code. Ten (10%) percent of the total award is usually the reasonable amount of attorneys fees awarded. It is settled that where an employee was forced to litigate and, thus, incur expenses to protect his rights and interest, the award of attorneys fees is legally and morally justifiable.
WHEREFORE, the petition is PARTIALLY GRANTED. The assailed Resolutions of respondent (Third Division) National Labor Relations Commission are AFFIRMED, with the following MODIFICATION/CLARIFICATION: Respondent Wide Wide World Express Corp. is liable to pay Armando Aliling the following: (a) backwages reckoned from October 6, 2004 up to the finality of this Decision based on a salary of PhP 17,300 a month, with interest at 6% per annum on the principal amount from October 6, 2004 until fully paid; (b) the additional sum equivalent to one (1) month salary for every year of service, with a fraction of at least six (6) months considered as one whole year based on the period from June 11, 2004 (date of employment contract) until the finality of this Decision, as separation pay; (c) PhP 30,000 as nominal damages; and (d) Attorneys Fees equivalent to 10% of the total award.
Endnotes:
1 Rollo, pp. 22-31. Penned by Associate Justice Magdangal M. de Leon and concurred in by Associate Justices Josefina Guevara-Salonga and Normandie B. Pizarro.
2 Id. at 33-34.
3 CA rollo, pp. 38-48.
4 Id. at 49-50.
5 Id. at 135-143
6 Id. at 69-70.
7 Id. at 71-74.
8 Id. at 71.
9 Id. at 109.
10 Id. at 74.
11 Letter dated Sept. 27, 2004; id. at 75.
12 Id. at 76.
13 Id. at 77.
14 Id. at 79-80.
15 Id. at 81.
16 Id. at 83.
17 Id. at 51.
18 Id. at 85-89.
19 Id. at 90-101.
20 Id. at 105.
21 Id. at 113.
22 Id. at 117-121.
23 Id. at 135-143.
24 Rollo, pp. 30-31.
25 Id. at 11-12.
26 Id. at 44-56.
27 G.R. No. 75787, January 21, 1991, 193 SCRA 105, 114; citing Maricalum Mining Corporation v. Brion, G.R. No. 157696-97, February 9, 2006, 482 SCRA 87, 99; Miguel v. Court of Appeals, No. L-20274, October 30, 1969, 29 SCRA 760, 767-768; Saura Import & Export Co., Inc. v. Philippine International Co., Inc., No. L-151, May 31, 1963, 8 SCRA 143, 148.
28 CA rollo, p. 142.
29 G.R. No. 78693, January 28, 1991, 193 SCRA 410.
30 Rollo, p. 28.
31 G.R. No. 149859, June 9, 2004, 431 SCRA 508, 514.
32 German Machineries Corporation v. Endaya, G.R. No. 156810, November 25, 2004, 444 SCRA 329, 340.
33 G.R. No. 178397, October 20, 2010, 634 SCRA 279, 289-290.
34 Dacuital v. L. M. Camus Engineering Corporation, G.R. No. 176748, September 1, 2010, 629 SCRA 702, 715.
35 G.R. No. 118434, July 26, 1996, 259 SCRA 485, 496-497.
36 G.R. No. 125303 June 16, 2000, 333 SCRA 589, 598-599.
37 Agoy v. NLRC, G.R. No. 112096, January 30, 1996, 252 SCRA 588, 595.
38 G.R. No. 114313, July 29, 1996, 259 SCRA 664, 677.
39 G.R. No. 166208, June 29, 2007, 526 SCRA 116, 125-26.
40 G.R. No. 181913, March 5, 2010, 614 SCRA 342, 350-351.
41 G.R. No. 187200, May 05, 2010, 620 SCRA 283, 288-290.
42 CA rollo, p. 248.
43 G.R. No. 166554, November 27, 2008, 572 SCRA 89, 106; citing Farrol v. Court of Appeals, G.R. No. 133259, February 10, 2000, 325 SCRA 331, citing in turn Jardine Davies, Inc. v. National Labor Relations Commission, G.R. No. 76272, July 28, 1999, 311 SCRA 289, Guatson International Travel and Tours, Inc. v. National Labor Relations Commission, G.R. No. 100322, March 9, 1994, 230 SCRA 815.
44 Hilton Heavy Equipment Corporation v. Dy, G.R. No. 164860, February 2, 2010, 611 SCRA 329, 339.
45 G.R. No. 177795, June 19, 2009, 590 SCRA 110, 141-142.
46 G.R. No. 165381, February 9, 2011, 642 SCRA 338, 361.
47 G.R. No. 187107, January 31, 2012.
48 Rollo, p. 29.
49 G.R. No. 170464, July 12, 2010, 624 SCRA 705, 720.
50 G.R. No. 146267, February 17, 2003, 397 SCRA 607.
51 G.R. No. 69494, June 10, 1986, 142 SCRA 269.
52 G.R. No. 188233, June 29, 2010, 622 SCRA 503, 506-508.
53 G.R. No. 166109, February 23, 2011, 644 SCRA 76, 91.
54 Supra note 49, at 721.