FIRST DIVISION
G.R. No. 216599, September 16, 2020
VERIZON COMMUNICATIONS PHILIPPINES, INC., PETITIONER, V. LAURENCE C. MARGIN, RESPONDENT.
D E C I S I O N
LOPEZ, J.:
Assailed in this Petition for Review (Rule 45) are the following: (1) the Decision1 dated August 18, 2014; and (2) the Resolution2 dated January 29, 2015, both rendered by the Court of Appeals3 (CA), which declared the dismissal of respondent as valid and subsequently denied petitioner's motion for reconsideration.
Time and again this Office held that in an illegal dismissal case, the onus probandi rests on the employer to prove that the dismissal of an employee is for a valid cause. Failure to show this necessarily means that the dismissal was unjustified and therefore illegal.Aggrieved, Laurence appealed before the National Labor Relations Commission (NLRC), pointing out that the arbiter's Decision did not clearly and distinctly set forth the facts and law from which their conclusion was made. Verizon failed to present sufficient evidence to prove just or authorized cause for the dismissal nor was Verizon able to show that it observed the requirements of due process. Laurence's prolonged absence was due to health reasons and he did not intend to abandon his work.20
Consistently, while the employee's security of tenure is guaranteed by law, it is also well-organized that employers have the right and prerogative to regulate every aspect of the business affairs in accordance with their discretion and judgement subject to the regulation of the State.
The free will o[f] the management to conduct its own business includes the promulgation of policies, rules and regulations on work-related activities. The policies and regulations so promulgated, unless shown to be grossly oppressive or contrary to law are generally valid and binding on the parties and must be complied with until finally revised or amended, unilaterally or through negotiation, by competent authority. x x x.
Undisputed is the fact that respondent company set-forth a rule against absenteeism. As shown by the evidence, the company ha[s] a rule that unauthorized absences for five (5) consecutive days is considered abandonment which carries a penalty of dismissal, x x xx x x x
While this tribunal is mindful that complainant notified his Manager Mr. Quintal about his illness on February 3, 2012 and his intention not to report to work that day, this fact does not excused [sic] him from at least notifying the company of his extended absences. It bears to point out that complainant is a Network Engineer. As admitted by complainant, he is tasked to perform work with the Network Operation Center environment supporting and manage[s] services customer that strongly utilizes DSL and EVDO transport fault analysis and resolution of network anomalies. He was also tasked to diagnose and troubleshoot problems and drive application responsible parties to perform repair activities and drive applicable vendors through escalations and provide ongoing status updates to customer and management x x x. By the nature of his position, the operation of the company evidently] relies greatly on his presence in the site.
Going on prolonged unauthorized absences for thirty eight (38) days indubitably hamper the operation of the company.
Considering that complainant went on prolonged absence without official leave for thirty eight (38) consecutive days, without informing his immediate supervisor or the company about it and without even offering any reasonable explanation for his failure to inform the company of his prolonged absences, the company cannot be faulted to apply is rule on absenteeism.
The contention of complainant that he was waiting for the instruction of his Manager on what to do after he went on leave will not exonerate him of his failure to file an application for leave of absence or at least inform the company of his intention to extend his absence from work, more so, that the company rule which include the rule on absenteeism was made know to all its employees during orientation and the same is even uploaded in the company's web site.19 (Citations omitted.)
WHEREFORE, the Complainant's Appeal is GRANTED and the Decision dated 11 February 2013 of the Labor Arbiter is SET ASIDE. Respondent-Verizon Communication Philippines Incorporated, Inc. [sic] is hereby ORDERED to pay the Complainant:The NLRC held that Laurence was illegally dismissed because of Verizon's failure to show just cause to terminate his employment. There is no showing that Laurence's absence was unauthorized. The company's rules do not require an employee to tender proof of sickness or illness, before or during the time while he/she is sick. What the rules mandate is for an employee to notify his/her manager four hours before sick leave and to submit his/her medical certificate upon return. Laurence was able to notify his immediate supervisor, Joseph Quintal, through text message about his sickness and his leave on February 3, 2012. The NLRC likewise held that Verizon did not give Laurence an opportunity to be heard before he was dismissed.
1. Backwages from the time he was dismissed or on 28 March 2012 until the Decision of this case attains finality, based on his last pay before he was dismissed x x x;x x x x
2. Separation pay equivalent to one month for every year of service, based on his latest salary, from the start of his employment or on 3 September 2007 until the finality of the Decision in this case. A fraction of at least six (6) months shall be considered as one (1) whole year x x x;x x x x
3. Attorney's fees equivalent to 10% of the total award of backwages and separation pay in the amount of P97,893.01.
SO ORDERED.22cralawlawlibrary
ATTENDANCE AND PUNCTUALITY
You are expected to report to work on time and on a regular basis. Excessive absenteeism and tardiness will be grounds for corrective action, including termination.
Excessive absenteeism and tardiness adversely affect productivity, disrupt normal operating effectiveness, and overburden other employees who must cover for the employee who is absent.
ATTENDANCE AND ABSENCES - An employee is expected to report for work on the days and time required by their respective positions. Occasionally, it may be necessary for an employee to be absent from work as a result of illness, injury and maternity or for personal reasons. In such cases, employees are expected to inform their Manager at least 5 days before their scheduled absence.
If the absence cannot be predicted in advance, employees, must notify their Manager at least four (4) hours before their shift schedule. Likewise, they should inform their Managers as to when they intend to report for work.
Absences are classified into two categories - Authorized and Unauthorized - as follows:
1.) Authorized Absences - Authorized absence is a result of factors beyond an employee's control, such as emergency and sick leaves. Should an employee need to be absent due to an emergency or due to sickness, he/she must provide the Manager with reasonable description of the nature of the emergency or sickness indicating inability to work. FOUR (4) hours notification is needed to make necessary adjustment with manpower allocation. Absences due to emergency and illness may be considered authorized, provided, that proof of such illness or emergency is subsequently provided the employer. x x x x • For an absence to be considered authorized, the employee should inform his/her immediate Manager/Supervisor of his/her intention and reason for not coming to work. The information should be received at least four hours before his/her work scheduled. If the employee failed to inform his/her immediate superior, this m ay result to unauthorized absence.2) Unauthorized Absences - Unauthorized absence occurs upon failure to report to work as expected. One or more unauthorized absences will result in corrective actions, which may include dismissal. Five (5) or more consecutive days in which an employee fails to work without an approved leave application will be considered abandonment of work, absence without leave (AWOL) or voluntary resignation on the part of the employee. Absence may be considered unauthorized for the following circumstances: • Failure to notify the manager/supervisor and/or Attendance Administrator 4 hours before scheduled duty (4 hours due to business needs) • Failure to submit a medical certificate on the return date, where absence was due to illness.
Corrective Actions for Unauthorized Absences incurred within a yearUnder Verizon's rules, the absence of an employee may be authorized or unauthorized. An authorized absence, due to sickness, requires that the employee send his manager notice four hours before his shift, with a reasonable description of his illness, and the submission of the employee's proof of illness on his return date. On the other hand, the employee's absence becomes unauthorized if the employee fails to notify his/her immediate superior, or if the employee fails to submit a medical certificate on his/her return date.
1st Offense: Verbal Warning and Counseling - documentation of the verbal warning shall be kept in the employee 's record
2nd Offense: Written Warning
3rd Offense: SUSPENSION - 1 day suspension without pay
4th Offense: SUSPENSION - 3 days suspension without pay
5th Offense or 5 days consecutive unauthorized absences: DISMISSAL33cralawlawlibrary
[W]e held that "[e]ven when there exist some rules agreed upon between the employer and employee on the subject of dismissal, x x x the same cannot preclude the State from inquiring on whether [their] rigid application would work too harshly on the employee." This Court will not hesitate to disregard a penalty that is manifestly disproportionate to the infraction committed.40cralawlawlibraryIn the Cavite Apparel case, the respondent employee went on an absence without leave for three times in a span of a year, for each instance, she was suspended accordingly. On account of sickness, respondent again was not able to report for work, and was suspended for six days. When she went back to work, her employment was terminated. The Court held that, while respondent might have been guilty of violating company rules on leaves of absence and employee discipline, the penalty of dismissal imposed on her was unjustified. Respondent had been in the employ of Cavite Apparel for six years with no derogatory record other than the four absences without official leave. The respondent's illness, which was the reason for absence, rendered her dismissal unreasonable as it is clearly disproportionate to the infraction she committed.
(1) The first written notice to be served on the employees should contain the specific causes or grounds for termination against then, 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 (5) calendar days from receipt of the notice to give the employees an opportunity to study the accusation against them, consult a union official or lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint. 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 circumstance 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. 282 [of the Labor Code] is being charged against the employees.A perusal of the notices issued by Verizon shows that it failed to observe the standards set forth in case law: ChanRoblesVirtualawlibrary
(2) After serving the first notice, the employers 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. Moreover, this conference or hearing could be used by the parties as an opportunity to come to an amicable settlement.
(3) After determining that termination of employment is justified, the employers shall serve the employees a written notice of termination indicating that: (1) all circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.46 (Emphasis and underscoring supplied; citations omitted.)
March 5, 2012 Notice to Explain -While Verizon ostensibly afforded Laurence the opportunity to refute the charge of AWOL and abandonment against him, the company deprived him of due process when he was not given ample time to prepare his defense and later on, when his explanation was not given consideration on the ground that it was submitted beyond the 48-hour period. Thus, Laurence's right to procedural due process was violated. The CA aptly observed: ChanRoblesVirtualawlibrary
On February 3, 2012, you have notified your manager that you will be on Sick Leave. Since then, you have not provided any medical documents and you have been unreachable via mobile phone. Likewise, you have not respondent to your manager's messages.
We are writing you this letter to inform you that your absences have been affecting production and this may fall as violation of our Attendance and Punctuality implementing guidelines if no justification is provided, and to state:
Unauthorized Absences - Unauthorized absence occurs upon the failure to report to work as expected. One or more unauthorized absences will results in corrective actions, which may include dismissal. Five (5) or more consecutive days in which an employee fails to report to work without an approved leave application will be considered abandonment of work, absence without leave (AWOL) or voluntary resignation on the part of the employee.
You are hereby required to explain in writing why you should not be considered to have abandoned your work based on the above-mentioned absences without notification. Submit your explanation personally to the undersigned within forty-eight (48) hours from receipt hereof. You may elect to be heard if you so desire. Your failure to reply to this letter within the time required shall be considered as a waiver of your right to be heard on this matter. Accordingly, the Company shall proceed with the evaluation of the case on the basis of the evidence on hand.
Please be guided accordingly.47
March 28. 2012 Notice of Termination -
This letter is to inform you that your employment with the company shall be deemed terminated effective immediately due [to] the following reasons: ChanRoblesVirtualawlibrary1. You failed to report to work from February 3, 2012 to date. These absences were considered unauthorized and grounds for dismissal.You are advised to return all Company properties including security passes, Verizon ID, keys, Medicard IDs, and any other office equipment that may have been issued to you.
2. You did not inform your manager or HR of the reason for your absences. You also failed to reply to all the messages and calls made by your manager.
3. The Company Nurse visited you at your residence on March 8, 2012 at 8PM. There was no one in the house and the nearby store owner directed the nurse to your relative's house. The nurse was able to speak with your cousin Melrose and she informed the company nurse that you left for abroad two (2) weeks ago. The nurse gave the Notice of Letter to Explain dated March 5, 2012 to your cousin, Melrose and advised her to hand it to your mother.
4. You failed to do your responsibility as an employee to provide supporting medical documents for your absences and to let your manager know when you will be back for work.
5. The Notice of Letter to Explain stated that you were given 48 hours to explain personally to you manager or HR the reasons for your unauthorized absences and failure to reply within the prescribed time shall be considered as waiver of your right to be heard. We did not hear from you within the 48 hours given timeframe and as a result the company proceeded with the evaluation of the case and decided that you have committed AWOL and abandoned your work.
Please be guided accordingly.48cralawlawlibrary
In the present case, [Laurence] was given until 13 March 2012 to submit his answer to the [Notice to Explain] because [Verizon] insisted that [he] received the [notice] on 8 March 2012, despite its own allegation that the notice was not personally served to [Laurence] on that date but to his cousin, who lived in a nearby house. Thus, while [Laurence] had actually received the [Notice to Explain] only on 14 March 2012 and had been able to e-mail to [Verizon] his letter of explanation on that same day, his explanation was no longer considered by [Verizon] when it evaluated his case as it was allegedly submitted beyond the prescribed period in the [notice].Considering, therefore, that Laurence was illegally terminated, he is entitled to reinstatement without loss of seniority rights and other privileges and to full backwages.50 However, if actual reinstatement is no longer possible, the employee becomes entitled to separation pay in lieu of reinstatement.51 Based on jurisprudence, reinstatement is not feasible: (1) in cases where the dismissed employee's position is no longer available; (2) the continued relationship between the employer and the employee is no longer viable due to the strained relations between them; and (c) when the dismissed employee opted not to be reinstated, or the payment of separation benefits would be for the best interest of the parties involved.52 In these instances, separation pay is the alternative remedy to reinstatement in addition to the award of backwages.53 The payment of separation pay and reinstatement are exclusive remedies. Stated differently, the payment of separation pay replaces the legal consequences of reinstatement to an employee who was illegally dismissed.54 Here, we uphold the grant of separation pay in favor of Laurence. The NLRC and the CA consistently found that he opted to receive separation pay instead of reinstatement.55x x x x
xxx [Laurence] need not manifest his desire to be heard because the opportunity to be heard is an indispensable part of procedural due process. It must be noted that an employee's right to be heard is satisfied not only by a formal face to face confrontation but by any meaningful opportunity to controvert the charges against him and to submit evidence in support thereof. Considering that in the present case, [Laurence's] explanation to the charges against him had not been taken into account when [Verizon] arrived at its decision to terminate him, [Verizon] clearly denied him his right to be heard.49cralawlawlibrary
Endnotes:
1Rollo, pp. 39-55.
2Id. at 57-58.
3 CA-G.R. SP No. 132488; penned by Associate Justice Apolinario D. Bruselas, Jr., with the concurrence of Associate Justices Andres B. Reyes, Jr. (retired Member of this Court) and Samuel H. Gaerlan (now a Member of this Court).
4Rollo, pp. 91-93.
5Id. at 95-113.
6Id. at 98. In Petitioner Verizon's pleadings, Laurence occupied the position of Affiliate Engineer for Network Operations and was hired on August 7, 2007; id. at 121.
7Id. at 115-116.
8Id. at 101 and 118.
9Id. at 101 and 117.
10Id. at 103-112.
11Id. at 120-134.
12Id. at 138. The message stated: "sir, di ako makakapasok. [L]umabas xray results Pulmonary TB and pnemonia [sic]. [Pa]hinga and medication advised [sic] sir k[asi] contagious. [L]aurence."
13Id. at 139. Joseph sent the following messages to Laurence: ChanRoblesVirtualawlibraryOk14Id. at 141.
Tawagan mo ako pagnabasa mo to.
Lawrence, I need a copy of your medical cert[ificate], test results, etc. You can either have someone
forward them over to the clinic or send HR a fax or scanned copy via email. Ensure that you copy
me as well.
15Id. at 143.
16Id. at 142.
17Id. at 147.
18Id. at 180-183; penned by Labor Arbiter Michelle P. Pagtalunan.
19Id. at 181-183.
20Id. at 185-213.
21Id. at 232-247.
22Id. at 246-247.
23Id. at 265-267.
24Id. at 289-296.
25Id. at 269-303.
26Id. at 39-55.
27Id. at 400-411.
28Id. at 57-59.
29Cavite Apparel, Incorporated, et al. v. Marquez, 703 Phil. 46, 53 (2013), citing DUP Sound Phils, and/or v. Court of Appeals, et al., 676 Phil. 472, 478 (2011), citing Union Industries, Inc. v. Vales, 517 Phil. 247, 252 (2006).
30Id.
31Demex Rattancraft Inc., et al. v. Leron, 820 Phil. 693, 705 (2017).
32Protective Maximum Security Agency, Inc. v. Fuentes, 753 Phil. 482, 513 (2013), citing Stolt-Nielsen Marine Services, Inc. v. National Labor Relations Commission, 360 Phil. 881, 888-889 (1998).
33Rollo, pp. 148-149.
34Zagala v. Mikado Phils. Corp., 534 Phil. 711, 720 (2006), citing Brew Master International Inc. v. NAFLU, 337 Phil. 728, 737 (1997); Procter and Gamble Philippines v. Bondesto, 468 Phil. 932, 943 (2004); Asuncion v. NLRC, 414 Phil. 329, 336 (2001); Del Monte Philippines, Inc. v. NLRC, 350 Phil. 510, 516(1998).
35Zagala v. Mikado Phils. Corp., id. at 722; Union Motor Corporation v. NLRC, 487 Phil. 197, 209 (2004).
36Zagala v. Mikado Phils. Corp., supra at 721, citing Philips Semiconductors (Phils.), Inc. v. Fadriquela, 471 Phil. 355, 377; Procter and Gamble Philippines v. Bondesto, supra; Union Motor Corporation v. NLRC, supra; Michael Inc. v. NLRC, 326 Phil. 472, 476 (1996).
37 703 Phil. 46(2013).
38 316 Phil. 225(1995).
39 458 Phil. 401 (2003).
40Cavite Apparel, Incorporated, et al. v. Marquez, supra at 56.
41PLDT Co. v. Teves, 649 Phil. 39, 49-50 (2010).
42Cavite Apparel, Incorporated, et al. v. Marquez, supra.
43Paredes v. Feed the Children Philippines. Inc., et al., 769 Phil. 418, 442-443 (2015), citing Fuji Television Network. Inc. v. Espiritu, 749 Phil. 388, 429 (2014).
44Distribution & Control Products; Inc./ Tiamsic v. Santos, 813 Phil. 423, 436 (2017), citing New Puerto Commercial, et al. v. Lopez, et al., 639 Phil. 437, 445 (2010).
45 553 Phil. 108(2007).
46Id. at 115-116.
47Rollo, p. 118.
48Id. at 117.
49Id. at 52-53.
50 Labor Code, Art. 294.
51Claret School of Quezon City v. Sinday, G.R. No. 226358, October 9, 2019, citing Golden Ace Builders, et al. v. Talde, 634 Phil. 364, 371 (2010).
52Session Delights Ice Cream and Fast Foods v. Hon. CA (6th Div.), et al., 625 Phil. 612, 628-629 (2010).
53Bani Rural Bank, Inc., et al. v. De Guzman, et al., citing Bombase v. NLRC, 315 Phil. 551, 556(1995).
54Id., citing Nissan North EDSA, Balintawak. Quezon City v. Serrano, Jr., 606 Phil. 222, 232 (2009).
55Rollo, pp. 53 and 244.
56Stream International Global Services Philippines, Inc. v. Pimentel, G.R. No. 227814, April 18, 2018.
57Id., citing Integrated Microelectronics, Inc. v. Pionilla, 716 Phil. 818, 823-824 (2013).
58 716 Phil. 818 (2013).
59 704 Phil. 120(2013).
60 202 Phil. 850(1982).
61 205 Phil. 14(1983).chanRoblesvirtualLawlibrary