G.R. No.

183934

ERNESTO GALANG and MA. OLGA JASMIN CHAN, Petitioners,

vs
BOIE TAKEDA CHEMICALS, INC. and/or KAZUHIKO NOMURA, Respondents.

DECISION

JARDELEZA, J.:

This is a petition for review on certiorari1under Rule 45 of the Revised Rules of Court filed
by Ernesto M. Galang and Ma. Olga Jasmin Chan (petitioners) from the Court of Appeals'
(CA) Decision2 dated February 26, 2008 (CA Decision) and the Resolution3 dated July 28,
2008 (collectively, Assailed Decision) in CA-G.R. SP No. 96861. In the Assailed Decision, the
CA affirmed the National Labor Relations Commission (NLRC) Decision4 dated March 7,
2006 reversing the Labor Arbiter's ruling that petitioners were illegally dismissed, viz:

WHEREFORE, premises considered, the instant Petition is hereby DENIED. Accordingly,

the assailed March 7, 2006 Decision of the NLRC as well as the October 25, 2006 Resolution
denying Petitioners' Motion for Reconsideration are AFFIRMED.

SO ORDERED.5(Emphases in the original.)

Statement of Facts

Respondent pharmaceutical company Boie Takeda Chemicals, Inc. (BTCI) hired petitioners
Ernesto Galang and Ma. Olga Jasmin Chan in August 28, 1975 and July 20, 1983,
respectively.6 Through the years, petitioners rose from the ranks and were promoted to
Regional Sales Managers in 2000. Petitioners held these positions until their separation
from BTCI on May 1, 2004.7

As Regional Sales Managers, they belong to the sales department of BTCI. They primarily
managed regional sales budget and target, and were responsible for market share and
company growth within their respective regions. Within the organizational hierarchy, they
reported to the National Sales Director.8 In 2002, when the National Sales Director position
became vacant (after the retirement of Melchor Barretto), petitioners assumed and shared
(with the general manager) the functions and responsibilities of this higher position, and
reported directly to the General Manager.9

In February 2003, the new General Manager, Kazuhiko Nomura (Nomura), asked
petitioners to apply for the position of National Sales Director.10 Simultaneously, Nomura
also asked Edwin Villanueva (Villanueva) and Mimi Escarte, both Group Product Managers
in the marketing depatiment, to apply for the position of Marketing Director. All four
employees submitted themselves to interviews with the management. In the end, Nomura
hired an outsider from Novartis Company as Marketing Director, while the position of
National Sales Director remained vacant.11
Later, however, petitioners were informed that BTCI promoted Villanueva as National Sales
Director effective May 1,2004.12 BTCI explained that the appointment was pursuant to its
management prerogative, and that it arrived at such decision only "after careful assessment
of the situation, the needs of the position and the qualifications of the respective
candidates."13 The promotion of Villanueva as the National Sales Director caused ill-feelings
on petitioners' part.14 They believed that Villanueva did not apply for the position; has only
three years of experience in sales; and was reportedly responsible for losses in the
marketing depmiment.15 Petitioners further resented Villanueva's appointment because
they heard that the appointment was made only because he threatened to leave the office
along with the company's top cardio-medical doctors.16

After Villanueva's promotion, petitioners claimed that Nomura threatened to dismiss them
from office if they failed to perform well under the newly appointed National Sales
Director.17 This prompted petitioners to inquire if they could avail of early retirement
package due to health reasons. Specifically, they requested Nomura if they could avail of
the early retirement package of 150% plus 120% of monthly salary for every year of
service tax free, and full ownership of service vehicle tax free.18 They claimed that this is
the same retirement package given to previous retirees namely, former Regional Sales
Director Jose Sarmiento, Jr. (Sarmiento), and former National Sales Director Melchor
Barretto.19 Nomura, however, insisted that such retirement package does not exist20 and
Sarmiento's case was exceptional since he was just a few years shy from the normal
retirement age.21

On April 28, 2004, petitioners intimated their intention to retire in a joint written letter of
resignation22 dated April 28, 2002 (sic) to Nomura, effective on April 30, 2004. Thereafter,
petitioners received their retirement package and other monetary pay from BTCI. Chan
received two checks23 in the total amount of P2, 187,236.6424 computed as follows:

1) Retirement pay (P70,000.00 x 120% x 21years) = P1,764,000.00

2) Salaries from May to December 2004 (P70,000.00 x
P560,000.00
8 mos.) =
3) Allowances (from May to December 2004) = P69,328.00
4) Rice Subsidy (April-December) = P6,000.00
5) Conversion of Leave Credits (138 days) = P461,833.00
6) 13th month pay (pro-rata) = P35,000.00

[Gross Amount] P2,896,161.00

Less: Accountabilities P595,952.76
Taxes P110,971.00
 [Net Amount] P2, 187,236.6425

Galang received checks26 in the total amount of P3,754,306.5627 computed as follows:

1) Retirement Pay (P70,000 x 160% x 29 years)= P3,248,000.00

2) Salaries ffrom] May [to] Dec. 2004 = P560,000.00
3) Allowances (May to December 2004) = P69,328.00
4) Rice Subsidy (April to December)= P6,000.00
5) Conversion of Leave Credits (35 days) = P117,131.00
6) 13th month pay (pro-rata) = P35,000.00

Gross Amount P4,035,459.00

Less: Accountabilities P275.553.63
Taxes P5,598.81

[Net Amount] P3, 754,306.5628

Upon petitioners' retirement, the positions of Regional Sales Manager were abolished, and
a new position of Operations Manager was created.29

On October 20, 2004, petitioners filed the complaint for constructive dismissal and money
claims before the NLRC Regional Arbitration Branch.30

In a Decision dated May 16, 2005 (LA Decision),31 the Labor Arbiter ruled that petitioners
were constructively dismissed.32 The Labor Arbiter explained that petitioners were forced
to retire because Villanueva's appointment constituted an abuse of exercise of management
prerogative; and that subsequent events, such as the abolition of the positions of Regional
Sales Managers and the creation of the position of the Operations Manager show that
petitioners' easing out from service were orchestrated. It also found that petitioners were
discriminated as to their retirement package. The dispositive pmiion of the decision stated,
thus:

WHEREFORE, premises considered, judgment is hereby rendered, declaring complainants'

dismissal from their employment to be illegal.1âwphi1 Accordingly, respondents are jointly
and severally liable:

1) To pay complainants the amounts opposite their respective names:

 Backwagcs Separation Pay/ Salary
Differential Pay Differentials

E. Galang P398,854.16 189,000.00 830,000.00

3045,000.00 680,000.00

Ma. OJ Chan 398,954.16 189,000.00 830,000.00

2,205,000.00 680,000.00

2) To pay complainants, the amount P227, 164.10 for Olga Chan and the sum of P27,374.85
for Ernesto Galang, representing the refund of the deducted car loan;

3) To pay complainants the amount of P500,000.00 each, representing moral damages, and
the amount of P500.000.00 each, as for exemplary damages;

4) To pay complainant the amount equivalent to ten (10%) percent of the total judgment
award, as and for attorney's fees.

SO ORDERED.33

On June 30, 2005, BTCI appealed the LA Decision with the NLRC.34

Petitioners allegedly received a Notice of Decision35 dated March l0, 2006 from the NLRC.
The notice informed petitioners that a decision was promulgated by the NLRC on February
7, 2006. The attached decision in the notice, however, was dated March 7, 2006. The
decision dated March 7, 200636 (March Decision) reversed and set aside the LA Decision,
and dismissed the complaint. In said decision, the NLRC ruled that petitioners failed to
prove that they were constructively dismissed.

Petitioners filed a motion to declare the March Decision null and void by way of motion for
reconsideration37 dated March 22, 2006. Petitioners alleged that prior to the Notice of
Decision, they personally received a decision allegedly promulgated on February 7,
200638 (February Decision) which affirmed the LA Decision, but with modification as to
the amount of moral and exemplary damages. Petitioners pointed out that the March
Decision: (1) lacked one signature in page 19; (2) contained two different specimens
signature for Commissioner Gacutan; (3) had pages which do not contain the initials of the
one preparing it; (4) was printed in higher quality paper; (4) merely lifted the arguments of
BTCI in contrast to the NLRC's February Decision which directly reviewed the findings of
the Labor Arbiter; and (5) was attached to a notice signed by merely a Labor Arbiter
Associate, and not by the Executive Clerk of the Division.39 Petitioners also reiterated that
BTCI dismissed them under the guise of management prerogative, and that Villanueva's
appointment as National Sales Director was an abuse of exercise of such prerogative. They
also claimed that their departure from the office was not voluntary but was prompted by
the circumstances after the BTCI preferred Villanueva's application over theirs.40

On October 25, 2006, the NLRC issued a Resolution41 which denied petitioners' motion for
reconsideration, and therefore upheld the NLRC's March Decision. The NLRC clarified that
the official decision is the March Decision, and that the February Decision cannot be
considered as the official decision because it was merely a draft decision.

Petitioners filed a petition for certiorari42under Rule 65 of the Revised Rules of Court with
the CA, which denied the petition in the Assailed Decision. The CA said that the "NLRC
having thus chosen to uphold its Decision dated March 7, 2006 as the authentic one, this
Court must therefore, consider the same as the version herein submitted for review."43 The
CA also found that the March Decision was more in tune with law and jurisprudence.44 It
reviewed and reassessed the facts and evidence on record and made a finding that the
NLRC did not commit grave abuse of discretion.

Thus, petitioners filed before this Court a petition for review on certiorari under Rule 45 of
the Revised Rules of Court. They allege that the CA erred in sustaining the decision of the
NLRC.

The Arguments

Petitioners argue that they were constructively dismissed because of the acts of BTCI 's
General Manager Nomura. They claim that they were forced into resigning because instead
of promoting them to the position of National Sales Directors, BTCI hired Villanueva who
only had three years of service in the company, who has no background or experience in
sales to speak of and who was allegedly responsible for almost the bankruptcy of the
company. They allege that Nomura threatened to dismiss them if they do not perform well
under the newly-appointed National Sales Director.

Petitioners also argue that the retirement package given to them is lower compared to
others who were holding the similar position at the time of their retirement. By way of
example, petitioners cite the case of one Sarmiento, who was promoted with them to the
same position, and who opted for early retirement in 2001. Sarmiento allegedly received a
more generous package of 150% of his monthly salary for every year of service on top of
the 120% retirement package for his 22 years of service. Petitioners contend that this was
the same retirement package given to other employees such as Anita Ducay, Marcielo
Rafael, Rolando Arada, Sarmiento, and Melchor Barretto.45

For its part, BCTI claims that the complaint is only an attempt to extort additional benefits
from the company.

BTCI denies having constructively dismissed petitioners. It argues that no constructive

dismissal can occur because there was no movement or transfer of position or diminution
of salaries or benefits. Neither was there any circumstance that would make petitioners'
continued employment unreasonable or impossible.46 The appointment of Villanueva was
within the sphere of management's prerogatives, and was arrived at after careful
consideration. It did not have any adverse effect on petitioners' positions as Regional Sales
Managers. According to BTCI, petitioner's decision to retire was voluntary and of their own
volition.47

As to the payment of retirement benefits, BTCI insists that petitioners have been paid
according to the Collective Bargaining Agreement (CBA) between BTCI and BTCI
Supervisory Union. Although petitioners are managers (and are not covered by the CBA),
BTCI by practice grants the same retirement benefits to managers. BTCI admits that it gave
Sarmiento additional financial assistance because of serious health problems, and because
he was merely three years away from normal retirement. Other employees cited by
petitioners all received retirement benefits computed on the CBA provisions.48

Issues

Thus, the issues before this Court are the following:

I. Whether petitioners were constructively dismissed from service; and

II. Whether petitioners are entitled to a higher retirement package.

Our Ruling

We deny the petition.

In its Resolution dated October 25, 2006, the NLRC denied petitioners' motion for
reconsideration, and declared the March Decision as the official decision. It ruled that the
February Decision (in petitioners' possession) is merely a draft decision.49 This Court
recognizes that it is common practice that more than one decision may be drafted because
more often, members of a collegiate body change their positions during
deliberations.50 This finding of the NLRC, coupled by the fact that the March Decision is
complete in form and substance pursuant to Section 4(c) and Section 13 of Rule VII of the
2005 NLRC Rules of Procedure, cannot be characterized as an exercise of grave abuse of
discretion amounting to lack or excess of jurisdiction. The issue of which between the two
decisions is the correct one delves into the substantive arguments of the case, which the CA
has already decided after review and reassessment of the facts and evidence of the entire
records.

I. Petitioners voluntarily
retired from the service, thus
were not constructively
dismissed.

Constructive dismissal has often been defined as a "dismissal in disguise" or "an act
amounting to dismissal but made to appear as if it were not."51 It exists where there is
cessation of work because continued employment is rendered impossible, unreasonable or
unlikely, as an offer involving a demotion in rank and a diminution in pay. In some cases,
while no demotion in rank or diminution in pay may be attendant, constructive dismissal
may still exist when continued employment has become so unbearable because of acts of
clear discrimination, insensibility or disdain by the employer, that the employee has no
choice but to resign.52 Under these two definitions, what is essentially lacking is the
voluntariness in the employee's separation from employment.

In this case, petitioners were neither demoted nor did they receive a diminution in pay and
benefits. Petitioners also failed to show that employment is rendered impossible,
unreasonable or unlikely.

Petitioners admitted that they have previously intended to retire and were actually the
ones who requested to avail of an early retirement.53 More, the circumstances which
petitioners claim to have forced them into early retirement are not of such character that
rendered their continued employment with BTCI as impossible.

Petitioners allege that Nomura appointed Villanueva in order to ease them out from the
company. Petitioners claim that Villanueva was unqualified for the position compared to
their experiences; that Villanueva did not apply for the position of National Sales Director;
and that he lacked the experience for the job. Such arguments only affirm the NLRC and
CA's finding that petitioners' resignation was prompted by their general disagreement with
the appointment of Villanueva, and not by the acts of discrimination by the management.

Our labor laws respect the employer's inherent right to control and manage effectively its
enterprise and do not normally allow interference with the employer's judgment in the
conduct of his business.54 Management has exclusive prerogatives to determine the
qualifications and fitness of workers for hiring and firing, promotion or reassignment.55 It
is only in instances of unlawful discrimination, limitations imposed by law and collective
bargaining agreement can this prerogative of management be reviewed.56

The reluctance to interfere with management's prerogative in determining who to promote

all the more applies when we consider that the position of National Sales Director is a
managerial position. Managerial positions are offices which can only be held by persons
who have the trust of the corporation and its officers.57 The promotion of employees to
managerial or executive positions rests upon the discretion of management.58 Thus, we
have repeatedly reminded that the Labor Arbiters, the different Divisions of the NLRC, and
even courts, are not vested with managerial authority.59 The employer's exercise of
management prerogatives, with or without reason, does not per se constitute unjust
discrimination, unless there is a showing of grave abuse of discretion.60 In this case, there is
none.

Petitioners did not present any evidence showing BTCI's adopted rules and policies laying
out the standards of promotion of an employee to National Sales Director. They did not
present the qualification standards (which BTCl did not allegedly follow) needed for the
position. Petitioners merely assumed that one of them was better for the job compared to
Villanueva. Mere allegations without proof cannot sustain petitioners' claim. In any case, a
perusal of Villanueva's resume shows that he has combined experiences in both sales and
marketing.61 The NLRC also found that an independent consulting agency, K Search Asia
Consulting, was engaged by BTCI to determine who to appoint as National Sales
Director.62 The consulting agency recommended Villanueva to the position.63 In the
absence of any qualification standards that BTCI allegedly gravely abused to refuse to
follow, we cannot substitute our own judgment on the qualifications of Villanueva.

Petitioners' allegation that Villanueva was appointed only because of the threats the latter
made to management militates against their claim. If BTCI management was merely forced
to appoint Villanueva, petitioners cannot claim that BTCI intentionally and maliciously
orchestrated their easement from the company.

Petitioners cannot also argue that BTCI's caution to dismiss them if they do not perform
well under the newly-appointed National Sales Director constituted a threat to their
employment. This is merely a warning for them to cooperate with the new National Sales
Director. Such warning is expected of management as part of its supervision and
disciplining power over petitioners given their unwelcoming reactions to Villanueva's
appointment.

The other acts of discrimination complained of by petitioners refer to post-employment

matters, or those that transpired after their retirement. These include payment of alleged
"lesser" retirement package, and the abolition of the positions of Regional Sales Manager.
These events transpired only after they voluntary availed of the early retirement. We
stress, however, that the circumstances contemplated in constructive dismissal cases are
clear acts of discrimination, insensibility or disdain which necessarily precedes the
apparent "voluntary" separation from work. If they happened after the fact of separation, it
could not be said to have contributed to employee's decision to involuntary resign, or in
this case, retire.

It is true that in constructive dismissal cases, the employer is charged with the burden of
proving that its conduct and action or the transfer of an employee are for valid and
legitimate grounds such as genuine business necessity.64 However, it is likewise true that in
constructive dismissal cases, the employee has the burden to prove first the fact of
dismissal by substantial evidence.65 Only then when the dismissal is established that the
burden shifts to the employer to prove that the dismissal was for just and/or authorized
causc.66 The logic is simple-if there is no dismissal, there can be no question as to its
legality or illegality.67

In Portuguez v. GSIS Family Bank (Comsavings Bank),68 we were confronted with the same
facts where an employee who opted for voluntary retirement claimed that he was
constructively dismissed. In that case, we ruled that it is the employee who has the onus to
prove his allegation that his availment of the early voluntary retirement program was, in
fact, done involuntarily:

Again, we are not persuaded. We are not unaware of the statutory rule that in illegal
dismissal cases, the employer has the onus prohandi to show that the employee's
separation from employment is not motivated by discrimination, made in bad faith, or
cffocled as a form of punishment or demotion without sufficient cause. It bears stressing,
however, that this legal principle presupposes that there is indeed an involuntary
separation from employment and the facts attendant to such forced separation was clearly
established.

This legal principle has no application in the instant controversy for as we have succinctly
pointed above, petitioner failed to establish that indeed he was discriminated against and
on account of such discrimination, he was forced to sever his employment from the
respondent bank. What is undisputed is the fact that petitioner availed himself of
respondent bank's early voluntary retirement program and accordingly received his
retirement pay in the amount of P1.324 Million under such program. Consequently, the
burden of proof will not vest on respondent bank to prove the legality of petitioner's
separation from employment but aptly remains with the petitioner to prove his allegation
that his availment of the early voluntary retirement program was, in fact, done
involuntarily.

As we have explicitly ruled in Machica v. Roosevelt Service Center, Inc.:

"The rule is that one who alleges a fact has the burden of proving it; thus, petitioners
were burdened to prove their allegation that respondents dismissed them from their
employment. It must be stressed that the evidence to prove this fact must be clear,
positive and convincing. The rule that the employer bears the burden of proof in illegal
dismissal cases finds no application here because the respondents deny having dismissed
the petitioners."

Verily, petitioner did not present any clear, positive or convincing evidence in the present
case to support his claims. Indeed, he never presented any evidence at all other than his
own self-serving declarations. We must bear in mind the legal dictum that, "he who
asserts, not he who denies, must prove."69 (Citations omitted, emphases in the original.)

Here, records show that petitioners failed to establish the fact of their dismissal when they
failed to prove that their decision to retire is involuntary. Consequently, no constructive
dismissal can be found.

II. Petitioners were not

discriminated against in
terms of their retirement
package.

The entitlement of employees to retirement benefits must specifically be granted under

existing laws, a collective bargaining agreement or employment contract, or an established
employer policy.70 Based on both parties' evidence, petitioners arc not covered by any
agreement. There is also no dispute that petitioners received more than what is mandated
by Article 28771 of the Labor Code. Petitioners, however, claim that they should have
received a larger pay because BTCI has given more than what they received to previous
retirees. In essence, they claim that they were discriminated against because BTCI did not
give them the package of 150% of monthly salary for every year of service on top of the
normal retirement package.

In Vergara v. Coca-Cola Bottlers Philippines, Inc.,72we explained that the burden of proof
that the benefit has ripened into company practice, i.e., giving of the benefit is done over a
long period of time, and that it has been made consistently and deliberately, rests with the
employee:

To he considered as a regular company practice the employee must prove by substantial

evidence that the giving of the benefit is done over a long period of time, and that it
has been made consistently and deliberately. Jurisprudence has not laid down any
hard-and-fast rule as to the length of time that company practice should have been
exercised in order to constitute voluntary employer practice. The common denominator in
previously decided cases appears to be the regularity and deliberateness of the grant of
benefits over a significant period of time. It requires an indubitable showing that the
employer agreed to continue giving the benefit knowing fully well that the
employees are not covered by any provision of the law or agreement requiring
payment thereof. In sum, the benefit must be characterized by regularity, voluntary and
deliberate intent of the employer to grant the benefit over a considerable period of
time.73 (Citations omitted, emphases supplied.)

We agree with the CA when it ruled that "[t]his concession given to such an employee was
not proved (sic) to be company practice or policy such that petitioners can demand of it
over and above what has been specified in the collective bargaining agreement."74

To prove that their claim on the additional grant of 150% of salary, petitioners presented
evidence showing that Anita Ducay,75 Rolando Arada,76 Marcielo Rafael,77 and
Sarmiento,78 received significantly larger retirement benefits. However, the cases of Ducay,
Arada, and Rafael cannot be used as precedents to prove this specific company practice
because these employees were not shown to be similarly situated in terms of rank, nor are
the applicable retirement packages corresponding to their ranks alike. Also, these
employees, including Sarmiento, all retired in the same year of 2001, or only within a one-
year period. Definitely, a year cannot be considered long enough to constitute the grant of
retirement benefits to these employees as company practice.

In fact, the affidavit79 of Anita Ducay affirms BTCI's position that in practice, the CBA
provisions govern the employees' retirement pay. And while it may also support
petitioners' allegation that in some cases, a more generous package is given to retiring
employees higher than that provided in the CBA, the affidavit candidly states that the
retirement package given to Sarmiento, Melchor Barreto, Marcielo Rafael, and Rolando
Arada was not in accordance with standard of merit or company practice.

It cannot therefore be disputed that petitioners already received the benefits as specified in
the CBA between BTCI and BTCI Supervisory Union.80 Petitioner Chan, for her 21 years of
service, received a total of Pl,764,000.00 as retirement benefits following the formula of
P70,000.00 x 120% x 21 years. Petitioner Galang, for his 29 years of service, received a
total of P3,248,000.00 as retirement benefits following the formula of P70,000.00 x 160% x
29 years.

In sum, we hold that petitioners voluntarily retired from service and received their
complete retirement package and other monetary claims from BTCI.

WHEREFORE, the petition for review on certiorari is DENIED. No costs.

SO ORDERED.
G.R. No. 167714 March 7, 2007

ROWELL INDUSTRIAL CORPORATION, Petitioner,

vs.
HON. COURT OF APPEALS and JOEL TARIPE, Respondents.

DECISION

CHICO-NAZARIO, J.:

This case is a Petition for Review under Rule 45 of the 1997 Revised Rules of Civil
Procedure seeking to set aside the Decision1and Resolution2of the Court of Appeals in CA-
G.R. SP No. 74104, entitled, Rowell Industrial Corp., and/or Edwin Tang vs. National Labor
Relations Commission and Joel Taripe, dated 30 September 2004 and 1 April 2005,
respectively, which affirmed the Resolutions3of the National Labor Relations Commission
(NLRC) dated 7 June 2002 and 20 August 2002, finding herein respondent Joel Taripe
(Taripe) as a regular employee who had been illegally dismissed from employment by
herein petitioner Rowell Industrial Corp. (RIC), thereby ordering petitioner RIC to reinstate
respondent Taripe with full backwages, subject to the modification of exonerating Edwin
Tang, the RIC General Manager and Vice President, from liability and computing the
backwages of herein respondent Taripe based on the prevailing salary rate at the time of
his dismissal. The NLRC Resolutions reversed the Decision4of the Labor Arbiter dated 29
September 2000, which dismissed respondent Taripe's complaint.

Petitioner RIC is a corporation engaged in manufacturing tin cans for use in packaging of
consumer products, e.g., foods, paints, among other things. Respondent Taripe was
employed by petitioner RIC on 8 November 1999 as a "rectangular power press machine
operator" with a salary of ₱223.50 per day, until he was allegedly dismissed from his
employment by the petitioner on 6 April 2000.

The controversy of the present case arose from the following facts, as summarized by the
NLRC and the Court of Appeals:

On [17 February 2000], [herein respondent Taripe] filed a [C]omplaint against [herein
petitioner RIC] for regularization and payment of holiday pay, as well as indemnity for
severed finger, which was amended on [7 April 2000] to include illegal dismissal.
[Respondent Taripe] alleges that [petitioner RIC] employed him starting [8 November
1999] as power press machine operator, such position of which was occupied by
[petitioner RIC's] regular employees and the functions of which were necessary to the
latter's business. [Respondent Taripe] adds that upon employment, he was made to sign a
document, which was not explained to him but which was made a condition for him to be
taken in and for which he was not furnished a copy. [Respondent Taripe] states that he was
not extended full benefits granted under the law and the [Collective Bargaining Agreement]
and that on [6 April 2000], while the case for regularization was pending, he was
summarily dismissed from his job although he never violated any of the [petitioner RIC's]
company rules and regulations.
[Petitioner RIC], for [its] part, claim[s] that [respondent Taripe] was a contractual
employee, whose services were required due to the increase in the demand in packaging
requirement of [its] clients for Christmas season and to build up stock levels during the
early part of the following year; that on [6 March 2000], [respondent Taripe's] employment
contract expired. [Petitioner RIC] avers that the information update for union members,
which was allegedly filled up by [respondent Taripe] and submitted by the Union to
[petitioner] company, it is stated therein that in the six (6) companies where [respondent
Taripe] purportedly worked, the latter's reason for leaving was "finished contract," hence,
[respondent Taripe] has knowledge about being employed by contract contrary to his
allegation that the document he was signing was not explained to him. [Petitioner RIC]
manifest[s] that all benefits, including those under the [Social Security System], were given
to him on [12 May 2000].5

On 29 September 2000, the Labor Arbiter rendered a Decision dismissing respondent

Taripe's Complaint based on a finding that he was a contractual employee whose contract
merely expired. The dispositive portion of the said Decision reads, thus:

WHEREFORE, premises considered, judgment is hereby rendered declaring this complaint

of [herein respondent Taripe] against [herein petitioner RIC] and Mr. Edwin Tang for illegal
dismissal DISMISSED for lack of merit. However, on ground of compassionate justice,
[petitioner RIC and Mr. Edwin Tang] are hereby ordered to pay [respondent Taripe] the
sum of PHP5,811.00 or one month's salary as financial assistance and holiday pay in the
sum of PHP894.00, as well as attorney's fees of 10% based on holiday pay (Article 110,
Labor Code).6

Aggrieved, respondent Taripe appealed before the NLRC. In a Resolution dated 7 June
2002, the NLRC granted the appeal filed by respondent Taripe and declared that his
employment with the petitioner was regular in status; hence, his dismissal was illegal. The
decretal portion of the said Resolution reads as follows:

WHEREFORE, premises considered, [herein respondent Taripe's] appeal is GRANTED. The

Labor Arbiter's [D]ecision in the above-entitled case is hereby REVERSED. It is hereby
declared that [respondent Taripe's] employment with [herein petitioner RIC and Mr. Edwin
Tang] is regular in status and that he was illegally dismissed therefrom.

[Petitioner RIC and Mr. Edwin Tang] are hereby ordered to reinstate [respondent Taripe]
and to jointly and severally pay him full backwages from the time he was illegally dismissed
up to the date of his actual reinstatement, less the amount of P1,427.67. The award of
P894.00 for holiday pay is AFFIRMED but the award of P5,811.00 for financial assistance is
deleted. The award for attorney's fees is hereby adjusted to ten percent (10%) of
[respondent Taripe's] total monetary award.7

Dissatisfied, petitioner RIC moved for the reconsideration of the aforesaid Resolution but it
was denied in the Resolution of the NLRC dated 20 August 2002.
Consequently, petitioner filed a Petition for Certiorari under Rule 65 of the 1997 Revised
Rules of Civil Procedure before the Court of Appeals with the following assignment of
errors:

I. THE [NLRC] GRAVELY ABUSED ITS DISCRETION AND IS IN EXCESS OF ITS JURISDICTION
WHEN IT MISINTERPRETED ARTICLE 280 OF THE LABOR CODE AND IGNORED
JURISPRUDENCE WHEN IT DECIDED THAT [RESPONDENT TARIPE] IS A REGULAR
EMPLOYEE AND THUS, ILLEGALLY DISMISSED.

II. THE [NLRC] GRAVELY ABUSED ITS DISCRETION AND IS IN EXCESS OF ITS
JURISDICTION WHEN IT ORDERED [EDWIN TANG] TO (sic) JOINTLY AND SEVERALLY
LIABLE FOR MONETARY CLAIMS OF [RESPONDEN TARIPE].

III. THE [NLRC] GRAVELY ABUSED ITS DISCRETION AND IS IN EXCESS OF ITS
JURISDICTION WHEN IT ORDERED PAYMENT OF MONETARY CLAIMS COMPUTED ON AN
ERRONEOUS WAGE RATE.8

The Court of Appeals rendered the assailed Decision on 30 September 2004, affirming the
Resolution of the NLRC dated 7 June 2002, with modifications. Thus, it disposed -

WHEREFORE, the Resolutions dated [7 June 2002] and [20 August 2002] of [the NLRC] are
affirmed, subject to the modification that [Edwin Tang] is exonerated from liability and the
computation of backwages of [respondent Taripe] shall be based on P223.50, the last salary
he received.9

A Motion for Reconsideration of the aforesaid Decision was filed by petitioner RIC, but the
same was denied for lack of merit in a Resolution10of the Court of Appeals dated 1 April
2005.

Hence, this Petition.

Petitioner RIC comes before this Court with the lone issue of whether the Court of Appeals
misinterpreted Article 280 of the Labor Code, as amended, and ignored jurisprudence
when it affirmed that respondent Taripe was a regular employee and was illegally
dismissed.

Petitioner RIC, in its Memorandum,11argues that the Court of Appeals had narrowly
interpreted Article 280 of the Labor Code, as amended, and disregarded a contract
voluntarily entered into by the parties.

Petitioner RIC emphasizes that while an employee's status of employment is vested by law
pursuant to Article 280 of the Labor Code, as amended, said provision of law admits of two
exceptions, to wit: (1) those employments which have been fixed for a specific project or
undertaking, the completion or termination of which has been determined at the time of
the engagement of the employment; and (2) when the work or services to be performed are
seasonal; hence, the employment is for the duration of the season. Thus, there are certain
forms of employment which entail the performance of usual and desirable functions and
which exceed one year but do not necessarily qualify as regular employment under Article
280 of the Labor Code, as amended.

The Petition is unmeritorious.

A closer examination of Article 280 of the Labor Code, as amended, is imperative to resolve
the issue raised in the present case.

In declaring that respondent Taripe was a regular employee of the petitioner and, thus, his
dismissal was illegal, the Court of Appeals ratiocinated in this manner:

In determining the employment status of [herein respondent Taripe], reference must be

made to Article 280 of the Labor Code, which provides:

xxxx

Thus, there are two kinds of regular employees, namely: (1) those who are engaged to
perform activities which are usually necessary or desirable in the usual business or trade of
the employer; and (2) those who have rendered at least one year of service, whether
continuous or broken, with respect to the activity in which they are employed. [Respondent
Taripe] belonged to the first category of regular employees.

The purported contract of employment providing that [respondent Taripe] was hired as
contractual employee for five (5) months only, cannot prevail over the undisputed fact that
[respondent Taripe] was hired to perform the function of power press operator, a function
necessary or desirable in [petitioner's] business of manufacturing tin cans. [Herein
petitioner RIC's] contention that the four (4) months length of service of [respondent
Taripe] did not grant him a regular status is inconsequential, considering that length of
service assumes importance only when the activity in which the employee has been
engaged to perform is not necessary or desirable to the usual business or trade of the
employer.

As aptly ruled by [the NLRC]:

"In the instant case, there is no doubt that [respondent Taripe], as power press operator,
has been engaged to perform activities which are usually necessary or desirable in
[petitioner RIC's] usual business or trade of manufacturing of tin cans for use in packaging
of food, paint and others. We also find that [respondent Taripe] does not fall under any of
the abovementioned exceptions. Other that (sic) [petitioner RIC's] bare allegation thereof,
[it] failed to present any evidence to prove that he was employed for a fixed or specific
project or undertaking the completion of which has been determined at the time of his
engagement or that [respondent Taripe's] services are seasonal in nature and that his
employment was for the duration of the season."12

Article 280 of the Labor Code, as amended, provides:

ART. 280. REGULAR AND CASUAL EMPLOYMENT. - The provisions of written agreement to
the contrary notwithstanding and regardless of the oral agreement of the parties, an
employment shall be deemed to be regular where the employee has been engaged to
perform activities which are usually necessary or desirable in the usual business or trade of
the employer, except where the employment has been fixed for a specific project or
undertaking the completion or termination of which has been determined at the time of the
engagement of the employee or where the work or services to be performed is seasonal in
nature and the employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding

paragraph: Provided, That, any employee who has rendered at least one year of service,
whether such service is continuous or broken, shall be considered a regular employee with
respect to the activity in which he is employed and his employment shall continue while
such activity exists. [Emphasis supplied]

The aforesaid Article 280 of the Labor Code, as amended, classifies employees into three
categories, namely: (1) regular employees or those whose work is necessary or desirable to
the usual business of the employer; (2) project employees or those whose employment has
been fixed for a specific project or undertaking, the completion or termination of which has
been determined at the time of the engagement of the employee or where the work or
services to be performed is seasonal in nature and the employment is for the duration of
the season; and (3) casual employees or those who are neither regular nor project
employees.13

Regular employees are further classified into: (1) regular employees by nature of work;
and (2) regular employees by years of service.14The former refers to those employees who
perform a particular activity which is necessary or desirable in the usual business or trade
of the employer, regardless of their length of service; while the latter refers to those
employees who have been performing the job, regardless of the nature thereof, for at least
a year.15

The aforesaid Article 280 of the Labor Code, as amended, however, does not proscribe or
prohibit an employment contract with a fixed period. It does not necessarily follow that
where the duties of the employee consist of activities usually necessary or desirable in the
usual business of the employer, the parties are forbidden from agreeing on a period of time
for the performance of such activities. There is nothing essentially contradictory between a
definite period of employment and the nature of the employee's duties.16What Article 280
of the Labor Code, as amended, seeks to prevent is the practice of some unscrupulous and
covetous employers who wish to circumvent the law that protects lowly workers from
capricious dismissal from their employment. The aforesaid provision, however, should not
be interpreted in such a way as to deprive employers of the right and prerogative to choose
their own workers if they have sufficient basis to refuse an employee a regular status.
Management has rights which should also be protected.17
In the case at bar, respondent Taripe signed a contract of employment prior to his
admission into the petitioner's company. Said contract of employment provides, among
other things:

4. That my employment shall be contractual for the period of five (5) months which means
that the end of the said period, I can (sic) discharged unless this contract is renewed by
mutual consent or terminated for cause.18

Based on the said contract, respondent Taripe's employment with the petitioner is good
only for a period of five months unless the said contract is renewed by mutual consent. And
as claimed by petitioner RIC, respondent Taripe, along with its other contractual
employees, was hired only to meet the increase in demand for packaging materials during
the Christmas season and also to build up stock levels during the early part of the year.

Although Article 280 of the Labor Code, as amended, does not forbid fixed term
employment, it must, nevertheless, meet any of the following guidelines in order that it
cannot be said to circumvent security of tenure: (1) that the fixed period of employment
was knowingly and voluntarily agreed upon by the parties, without any force, duress or
improper pressure being brought to bear upon the employee and absent any other
circumstances vitiating his consent; or (2) it satisfactorily appears that the employer and
employee dealt with each other on more or less equal terms with no moral dominance
whatever being exercised by the former on the latter.19

In the present case, it cannot be denied that the employment contract signed by respondent
Taripe did not mention that he was hired only for a specific undertaking, the completion of
which had been determined at the time of his engagement. The said employment contract
neither mentioned that respondent Taripe's services were seasonal in nature and that his
employment was only for the duration of the Christmas season as purposely claimed by
petitioner RIC. What was stipulated in the said contract was that respondent Taripe's
employment was contractual for the period of five months.

Likewise, as the NLRC mentioned in its Resolution, to which the Court of Appeals agreed,
other than the bare allegations of petitioner RIC that respondent Taripe was hired only
because of the increase in the demand for packaging materials during the Christmas
season, petitioner RIC failed to substantiate such claim with any other evidence. Petitioner
RIC did not present any evidence which might prove that respondent Taripe was employed
for a fixed or specific project or that his services were seasonal in nature.

Also, petitioner RIC failed to controvert the claim of respondent Taripe that he was made to
sign the contract of employment, prepared by petitioner RIC, as a condition for his hiring.
Such contract in which the terms are prepared by only one party and the other party
merely affixes his signature signifying his adhesion thereto is called contract of
adhesion.20It is an agreement in which the parties bargaining are not on equal footing, the
weaker party's participation being reduced to the alternative "to take it or leave it."21In the
present case, respondent Taripe, in need of a job, was compelled to agree to the contract,
including the five-month period of employment, just so he could be hired. Hence, it cannot
be argued that respondent Taripe signed the employment contract with a fixed term of five
months willingly and with full knowledge of the impact thereof.

With regard to the second guideline, this Court agrees with the Court of Appeals that
petitioner RIC and respondent Taripe cannot be said to have dealt with each other on more
or less equal terms with no moral dominance exercised by the former over the latter. As a
power press operator, a rank and file employee, he can hardly be on equal terms with
petitioner RIC. As the Court of Appeals said, "almost always, employees agree to any terms
of an employment contract just to get employed considering that it is difficult to find work
given their ordinary qualifications."22

Therefore, for failure of petitioner RIC to comply with the necessary guidelines for a valid
fixed term employment contract, it can be safely stated that the aforesaid contract signed
by respondent Taripe for a period of five months was a mere subterfuge to deny to the
latter a regular status of employment.

Settled is the rule that the primary standard of determining regular employment is the
reasonable connection between the particular activity performed by the employee in
relation to the casual business or trade of the employer. The connection can be determined
by considering the nature of the work performed and its relation to the scheme of the
particular business or trade in its entirety.23

Given the foregoing, this Court agrees in the findings of the Court of Appeals and the NLRC
that, indeed, respondent Taripe, as a rectangular power press machine operator, in charge
of manufacturing covers for "four liters rectangular tin cans," was holding a position which
is necessary and desirable in the usual business or trade of petitioner RIC, which was the
manufacture of tin cans. Therefore, respondent Taripe was a regular employee of petitioner
RIC by the nature of work he performed in the company.

Respondent Taripe does not fall under the exceptions mentioned in Article 280 of the
Labor Code, as amended, because it was not proven by petitioner RIC that he was employed
only for a specific project or undertaking or his employment was merely seasonal.
Similarly, the position and function of power press operator cannot be said to be merely
seasonal. Such position cannot be considered as only needed for a specific project or
undertaking because of the very nature of the business of petitioner RIC. Indeed,
respondent Taripe is a regular employee of petitioner RIC and as such, he cannot be
dismissed from his employment unless there is just or authorized cause for his dismissal.

Well-established is the rule that regular employees enjoy security of tenure and they can
only be dismissed for just cause and with due process, notice and hearing.24And in case of
employees' dismissal, the burden is on the employer to prove that the dismissal was legal.
Thus, respondent Taripe's summary dismissal, not being based on any of the just or
authorized causes enumerated under Articles 282,25283,26and 28427of the Labor Code, as
amended, is illegal.
Before concluding, we once more underscore the settled precept that factual findings of the
NLRC, having deemed to acquire expertise in matters within its jurisdiction, are generally
accorded not only respect but finality especially when such factual findings are affirmed by
the Court of Appeals;28hence, such factual findings are binding on this Court.

WHEREFORE, premises considered, the instant Petition is hereby DENIED. The Decision
and Resolution of the Court of Appeals dated 30 September 2004 and 1 April 2005,
respectively, which affirmed with modification the Resolutions of the NLRC dated 7 June
2002 and 20 August 2002, respectively, finding herein respondent Taripe as a regular
employee who had been illegally dismissed from employment by petitioner RIC, are hereby
AFFIRMED. Costs against petitioner RIC.

SO ORDERED.
 [G.R. No. 122653. December 12, 1997]

PURE FOODS CORPORATON, Petitioner, v. NATIONAL LABOR RELATIONS COMMISSION,

RODOLFO CORDOVA, VIOLETA CRUSIS, ET AL.,* respondents.

DECISION

DAVIDE, JR., J.:

The crux of this petition for certiorari is the issue of whether employees hired for a definite
period and whose services are necessary and desirable in the usual business or trade of the
employer are regular employees.

The private respondents (numbering 906) were hired by petitioner Pure Foods
Corporation to work for a fixed period of five months at its tuna cannery plant in Tambler,
General Santos City. After the expiration of their respective contracts of employment in
June and July 1991, their services were terminated. They forthwith executed a Release and
Quitclaim stating that they had no claim whatsoever against the petitioner.

On 29 July 1991, the private respondents filed before the National Labor Relations
Commission (NLRC) Sub-Regional Arbitration Branch No. XI, General Santos City, a
complaint for illegal dismissal against the petitioner and its plant manager, Marciano
Aganon. 1 This case was docketed as RAB-11-08-50284-91.

On 23 December 1992, Labor Arbiter Arturo P. Aponesto handed down a

decision 2 dismissing the complaint on the ground that the private respondents were mere
contractual workers, and not regular employees; hence, they could not avail of the law on
security of tenure. The termination of their services by reason of the expiration of their
contracts of employment was, therefore, justified. He pointed out that earlier he had
dismissed a case entitled Lakas ng Anak-Pawis- NOWM v. Pure Foods Corp. (Case No. RAB-
11-02-00088-88) because the complainants therein were not regular employees of Pure
Foods, as their contracts of employment were for a fixed period of five months. Moreover,
in another case involving the same contractual workers of Pure Foods (Case No. R-196-
ROXI- MED- UR-55-89), then Secretary of Labor Ruben Torres held, in a Resolution dated
30 April 1990, that the said contractual workers were not regular employees.

The Labor Arbiter also observed that an order for private respondents reinstatement
would result in the reemployment of more than 10,000 former contractual employees of
the petitioner. Besides, by executing a Release and Quitclaim, the private respondents had
waived and relinquished whatever right they might have against the petitioner.

The private respondents appealed from the decision to the National Labor Relations
Commission (NLRC), Fifth Division, in Cagayan de Oro City, which docketed the case as
NLRC CA No. M-001323-93.
On 28 October 1994, the NLRC affirmed the Labor Arbiter's decision. 3 However, on private
respondents motion for reconsideration, the NLRC rendered another decision on 30
January 1995 4 vacating and setting aside its decision of 28 October 1994 and holding that
the private respondents and their co-complainants were regular employees. It declared
that the contract of employment for five months was a clandestine scheme employed by
[the petitioner] to stifle [private respondents] right to security of tenure and should
therefore be struck down and disregarded for being contrary to law, public policy, and
morals. Hence, their dismissal on account of the expiration of their respective contracts
was illegal.

Accordingly, the NLRC ordered the petitioner to reinstate the private respondents to their
former position without loss of seniority rights and other privileges, with full back wages;
and in case their reinstatement would no longer be feasible, the petitioner should pay them
separation pay equivalent to one-month pay or one-half-month pay for every year of
service, whichever is higher, with back wages and 10% of the monetary award as attorneys
fees.

Its motion for reconsideration having been denied,5 the petitioner came to this Court
contending that respondent NLRC committed grave abuse of discretion amounting to lack
of jurisdiction in reversing the decision of the Labor Arbiter.

The petitioner submits that the private respondents are now estopped from questioning
their separation from petitioners employ in view of their express conformity with the five-
month duration of their employment contracts. Besides, they fell within the exception
provided in Article 280 of the Labor Code which reads: [E]xcept where the employment has
been fixed for a specific project or undertaking the completion or termination of which has
been determined at the time of the engagement of the employee.

Moreover, the first paragraph of the said article must be read and interpreted in
conjunction with the proviso in the second paragraph, which reads: Provided that any
employee who has rendered at least one year of service, whether such service is
continuous or broken, shall be considered a regular employee with respect to the activity in
which he is employed.... In the instant case, the private respondents were employed for a
period of five months only. In any event, private respondents' prayer for reinstatement is
well within the purview of the Release and Quitclaim they had executed wherein they
unconditionally released the petitioner from any and all other claims which might have
arisen from their past employment with the petitioner.

In its Comment, the Office of the Solicitor General (OSG) advances the argument that the
private respondents were regular employees, since they performed activities necessary
and desirable in the business or trade of the petitioner. The period of employment
stipulated in the contracts of employment was null and void for being contrary to law and
public policy, as its purpose was to circumvent the law on security of tenure. The expiration
of the contract did not, therefore, justify the termination of their employment.
The OSG further maintains that the ruling of the then Secretary of Labor and Employment
in LAP-NOWM v. Pure Foods Corporation is not binding on this Court; neither is that ruling
controlling, as the said case involved certification election and not the issue of the nature of
private respondents employment. It also considers private respondents quitclaim as
ineffective to bar the enforcement for the full measure of their legal rights.

The private respondents, on the other hand, argue that contracts with a specific period of
employment may be given legal effect provided, however, that they are not intended to
circumvent the constitutional guarantee on security of tenure. They submit that the
practice of the petitioner in hiring workers to work for a fixed duration of five months only
to replace them with other workers of the same employment duration was apparently to
prevent the regularization of these so-called casuals, which is a clear circumvention of the
law on security of tenure.

We find the petition devoid of merit.

Article 280 of the Labor Code defines regular and casual employment as follows:

ART. 280. Regular and Casual Employment.-- The provisions of written agreement to the
contrary notwithstanding and regardless of the oral argument of the parties, an
employment shall be deemed to be regular where the employee has been engaged to
perform activities which are usually necessary or desirable in the usual business or trade of
the employer, except where the employment has been fixed for a specific project or
undertaking the completion or termination of which has been determined at the time of the
engagement of the employee or where the work or services to be performed is seasonal in
nature and the employment is for the duration of the season.

An employment shall be deemed to be casual if it is not covered by the preceding

paragraph; Provided, That, any employee who has rendered at least one year of service,
whether such service is continuous or broken, shall be considered a regular employee with
respect to the activity in which he is employed and his employment shall continue while
such activity exists.

Thus, the two kinds of regular employees are (1) those who are engaged to perform
activities which are necessary or desirable in the usual business or trade of the employer;
and (2) those casual employees who have rendered at least one year of service, whether
continuous or broken, with respect to the activity in which they are
employed.6cräläwvirtualibräry

In the instant case, the private respondents activities consisted in the receiving, skinning,
loining, packing, and casing-up of tuna fish which were then exported by the petitioner.
Indisputably, they were performing activities which were necessary and desirable in
petitioners business or trade.

Contrary to petitioner's submission, the private respondents could not be regarded as

having been hired for a specific project or undertaking. The term specific project or
undertaking under Article 280 of the Labor Code contemplates an activity which is not
commonly or habitually performed or such type of work which is not done on a daily basis
but only for a specific duration of time or until completion; the services employed are then
necessary and desirable in the employers usual business only for the period of time it takes
to complete the project.7cräläwvirtualibräry

The fact that the petitioner repeatedly and continuously hired workers to do the same kind
of work as that performed by those whose contracts had expired negates petitioners
contention that those workers were hired for a specific project or undertaking only.

Now on the validity of private respondents' five-month contracts of employment. In the

leading case of Brent School, Inc. v. Zamora, 8 which was reaffirmed in numerous
subsequent cases, 9 this Court has upheld the legality of fixed-term employment. It ruled
that the decisive determinant in term employment should not be the activities that the
employee is called upon to perform but the day certain agreed upon by the parties for the
commencement and termination of their employment relationship. But, this Court went on
to say that where from the circumstances it is apparent that the periods have been imposed
to preclude acquisition of tenurial security by the employee, they should be struck down or
disregarded as contrary to public policy and morals.

Brent also laid down the criteria under which term employment cannot be said to be in
circumvention of the law on security of tenure:

1) The fixed period of employment was knowingly and voluntarily agreed upon by the
parties without any force, duress, or improper pressure being brought to bear upon the
employee and absent any other circumstances vitiating his consent; or

2) It satisfactorily appears that the employer and the employee dealt with each other on
more or less equal terms with no moral dominance exercised by the former or the latter.

None of these criteria had been met in the present case. As pointed out by the private
respondents:

[I]t could not be supposed that private respondents and all other so-called casual workers
of [the petitioner] KNOWINGLY and VOLUNTARILY agreed to the 5-month employment
contract. Cannery workers are never on equal terms with their employers. Almost always,
they agree to any terms of an employment contract just to get employed considering that it
is difficult to find work given their ordinary qualifications. Their freedom to contract is
empty and hollow because theirs is the freedom to starve if they refuse to work as casual or
contractual workers. Indeed, to the unemployed, security of tenure has no value. It could
not then be said that petitioner and private respondents "dealt with each other on more or
less equal terms with no moral dominance whatever being exercised by the former over
the latter. 10chanroblesvirtuallawlibrary

The petitioner does not deny or rebut private respondents' averments (1) that the main
bulk of its workforce consisted of its so-called casual employees; (2) that as of July 1991,
casual workers numbered 1,835; and regular employees, 263; (3) that the company hired
casual every month for the duration of five months, after which their services were
terminated and they were replaced by other casual employees on the same five-month
duration; and (4) that these casual employees were actually doing work that were
necessary and desirable in petitioners usual business.

As a matter of fact, the petitioner even stated in its position paper submitted to the Labor
Arbiter that, according to its records, the previous employees of the company hired on a
five-month basis numbered about 10,000 as of July 1990. This confirms private
respondents allegation that it was really the practice of the company to hire workers on a
uniformly fixed contract basis and replace them upon the expiration of their contracts with
other workers on the same employment duration.

This scheme of the petitioner was apparently designed to prevent the private respondents
and the other casual employees from attaining the status of a regular employee. It was a
clear circumvention of the employees right to security of tenure and to other benefits like
minimum wage, cost-of-living allowance, sick leave, holiday pay, and 13th month
pay. 11 Indeed, the petitioner succeeded in evading the application of labor laws. Also, it
saved itself from the trouble or burden of establishing a just cause for terminating
employees by the simple expedient of refusing to renew the employment contracts.

The five-month period specified in private respondents employment contracts having been
imposed precisely to circumvent the constitutional guarantee on security of tenure should,
therefore, be struck down or disregarded as contrary to public policy or morals. 12 To
uphold the contractual arrangement between the petitioner and the private respondents
would, in effect, permit the former to avoid hiring permanent or regular employees by
simply hiring them on a temporary or casual basis, thereby violating the employees
security of tenure in their jobs.13cräläwvirtualibräry

The execution by the private respondents of a Release and Quitclaim did not preclude them
from questioning the termination of their services. Generally, quitclaims by laborers are
frowned upon as contrary to public policy and are held to be ineffective to bar recovery for
the full measure of the workers rights. 14 The reason for the rule is that the employer and
the employee do not stand on the same footing.15chanroblesvirtuallawlibrary

Notably, the private respondents lost no time in filing a complaint for illegal dismissal. This
act is hardly expected from employees who voluntarily and freely consented to their
dismissal.16chanroblesvirtuallawlibrary

The NLRC was, thus, correct in finding that the private respondents were regular
employees and that they were illegally dismissed from their jobs. Under Article 279 of the
Labor Code and the recent jurisprudence, 17 the legal consequence of illegal dismissal is
reinstatement without loss of seniority rights and other privileges, with full back wages
computed from the time of dismissal up to the time of actual reinstatement, without
deducting the earnings derived elsewhere pending the resolution of the case.
However, since reinstatement is no longer possible because the petitioner's tuna cannery
plant had, admittedly, been closed in November 1994,18 the proper award is separation pay
equivalent to one month pay or one-half month pay for every year of service, whichever is
higher, to be computed from the commencement of their employment up to the closure of
the tuna cannery plant. The amount of back wages must be computed from the time the
private respondents were dismissed until the time petitioner's cannery plant ceased
operation.19cräläwvirtualibräry

WHEREFORE, for lack of merit, the instant petition is DISMISSED and the challenged
decision of 30 January 1995 of the National Labor Relations Commission in NLRC CA No. M-
001323-93 is hereby AFFIRMED subject to the above modification on the computation of
the separation pay and back wages.

SO ORDERED.
G.R. No. 174809 June 27, 2012

DUTY FREE PHILIPPINES SERVICES, INC., Petitioner,

vs.
MANOLITO Q. TRIA, Respondent.

DECISION

PERALTA, J.:

Assailed in this petition for review on certiorari under Rule 45 of the Rules of Court are the
Court of Appeals (CA) Decision1 dated May 31, 2006 and Resolution2 dated September 21,
2006 in CA-G.R. SP No. 70839. The assailed decision affirmed the National Labor Relations
Commission (NLRC) Resolution3 dated March 15, 2002 in NLRC NCR Case No. 00-12-
009965-98, while the assailed resolution denied petitioner Duty Free Philippines Services,
Inc.’s (DFPSI’s) motion for reconsideration.

The facts, as found by the CA, are as follows:

Petitioner Duty Free Philippines Services, Inc. is a manpower agency that provides
personnel to Duty Free Philippines (DFP).

On March 16, 1989, [respondent] Manolo Tria was employed by Petitioner and was
seconded to DFP as a Warehouse Supervisor.

In an Audit Report, dated January 16, 1998, it was revealed that 1,020 packs of Marlboro
bearing Merchandise Code No. 020101 under WRR No. 36-04032 were not included in the
condemnation proceedings held on December 27, 1996 and that there were "glaring
discrepancies" in the related documents which "indicate a malicious attempt to conceal an
anomalous irregularity." The relevant Request for Condemnation was found to have been
fabricated and all signatories therein, namely, Ed Garcia, Stockkeeper; Catherino A. Bero,
DIU Supervisor; and Constantino L. Cruz, were held "accountable for the irregular loss of
the unaccounted Marlboro KS Pack of 5…"

After further investigation, it was discovered that the subject merchandise was illegally
brought out of the warehouse and it was made to appear that in all the documents
prepared said goods were legally condemned on December 27, 1996. Ed Garcia, one of the
respondents in the Audit Review, implicated [respondent] and [two] others. Garcia claimed
that he was unaware of the illegality of the transaction as he was only obeying the orders of
his superiors who included [respondent]. Garcia disclosed that it was [respondent] who
ordered him to look for a van for the supposed "direct condemnation" of the subject
merchandise.

Consequently, the Discipline Committee requested [respondent] to submit a written

reply/explanation regarding the findings in the Audit Report and the allegations of Garcia.
[Respondent] denied his participation in the illegal transaction. Although he admitted that
he instructed Garcia to look for a van, it was for the purpose of transferring the damaged
merchandise from the main warehouse to the proper warehouse for damaged goods.

On August 27, 1998, the DFP Discipline Committee [DFPDC] issued a Joint Resolution
holding [respondent] "GUILTY OF DISHONESTY for (his) direct participation in the fake
condemnation" and pilferage of the missing 1,020 Marlboro Pack of 5’s cigarettes … and
orders (his) DISMISSAL from the service for cause and for loss of trust and confidence, with
forfeiture of all rights and privileges due them from the company, except earned salaries
and leave credits."

On September 18, 1998, Petitioner sent [respondent] a memorandum terminating his

employment with Petitioner and his secondment to DFP "on the basis of the findings and
recommendation of the (DFP’s) Discipline Committee."

Aggrieved, [respondent] filed a Complaint against Petitioner for Illegal Dismissal and for
payment of backwages, attorney’s fees and damages.4

On May 31, 1999, the Labor Arbiter (LA) rendered a Decision5 finding respondent to have
been illegally dismissed from employment. The dispositive portion of the decision reads:

WHEREFORE, all the foregoing premises being considered, judgment is hereby rendered
ordering the respondent company to reinstate complainant to his former position with all
the rights, privileges, and benefits appertaining thereto, including seniority, plus full
backwages which as of May 31, 1999 already amount to ₱172,672.50. Further, the
respondent is ordered to pay complainant the equivalent of ten percent (10%) of the total
backwages as and for attorney’s fees.

The claim for damages is denied for lack of merit.

SO ORDERED.6

On appeal, the NLRC affirmed7 the LA decision, but deleted the award of attorney’s fees.
Petitioner’s motion for reconsideration was also denied8 on March 15, 2002.

When petitioner elevated the case to the CA, it denied for the first time the existence of
employer-employee relationship and pointed to DFP as respondent’s real employer. The
appellate court, however, considered said defense barred by estoppel for its failure to raise
the defense before the LA and the NLRC.9 It nonetheless ruled that although DFPDC
conducted the investigation, petitioner’s dismissal letter effected respondent’s termination
from employment.10 On the validity of respondent’s dismissal from employment, the CA
respected the LA and NLRC findings and reached the same conclusion that respondent was
indeed illegally dismissed from employment.11 Petitioner’s motion for reconsideration was
likewise denied in a Resolution12 dated September 21, 2006.
Undaunted, petitioner elevates the case before the Court in this petition for review on
certiorari based on the following grounds:

THE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED THAT PETITIONER DFPSI IS
LIABLE FOR ILLEGAL DISMISSAL AND DECLARE THAT:

A. DFPSI IS THE DIRECT EMPLOYER OF RESPONDENT INSTEAD OF DUTY FREE

PHILIPPINES ("DFP"); AND

B. THE ISSUE AS TO WHO TERMINATED RESPONDENT WAS RAISED ONLY FOR

THE FIRST TIME ON APPEAL.

THE COURT OF APPEALS GRAVELY ERRED AND RULED CONTRARY TO LAW AND
JURISPRUDENCE WHEN IT FAILED TO RULE ON THE LIABILITY OF DFP, AS AN
INDISPENSABLE PARTY TO THE COMPLAINT FOR ILLEGAL DISMISSAL.

THE COURT OF APPEALS GRAVELY ERRED AND RULED CONTRARY TO LAW AND
JURISPRUDENCE WHEN IT HELD THAT RESPONDENT’S EMPLOYMENT WAS ILLEGALLY
TERMINATED.13

Petitioner insists that the CA erred in not considering its argument that it is not the
employer of respondent. It likewise faults the CA in not ruling on the liability of DFP as an
indispensable party.

We cannot sustain petitioner’s contention. In its Position Paper,14 petitioner highlighted

respondent’s complicity and involvement in the alleged "fake condemnation" of damaged
cigarettes as found by the DFPDC. This, according to petitioner, was a just cause for
terminating an employee.

In its Motion for Reconsideration and/or Appeal,15 petitioner insisted that there was basis
for the termination of respondent’s employment. Even in its Supplemental Appeal16 with
the NLRC, petitioner reiterated its stand that respondent was terminated for a just and
valid cause and due process was strictly observed in his dismissal. It further questioned the
reinstatement aspect of the LA decision allegedly because of strained relations between
them.

With the aforesaid pleadings submitted by petitioner, together with the corresponding
pleadings filed by respondent, the LA and the NLRC declared the dismissal of respondent
illegal. These decisions were premised on the finding that there was an employer-employee
relationship. 17 Nowhere in said pleadings did petitioner deny the existence of said
relationship. Rather, the line of its defense impliedly admitted said relationship. The issue
of illegal dismissal would have been irrelevant had there been no employer-employee
relationship in the first place.

It was only in petitioner’s Petition for Certiorari before the CA did it impute liability on DFP
as respondent’s direct employer and as the entity who conducted the investigation and
initiated respondent’s termination proceedings. Obviously, petitioner changed its theory
when it elevated the NLRC decision to the CA. The appellate court, therefore, aptly refused
to consider the new theory offered by petitioner in its petition. As the object of the
pleadings is to draw the lines of battle, so to speak, between the litigants, and to indicate
fairly the nature of the claims or defenses of both parties, a party cannot subsequently take
a position contrary to, or inconsistent, with its pleadings.18 It is a matter of law that when a
party adopts a particular theory and the case is tried and decided upon that theory in the
court below, he will not be permitted to change his theory on appeal. The case will be
reviewed and decided on that theory and not approached and resolved from a different
point of view.19

The review of labor cases is confined to questions of jurisdiction or grave abuse of

discretion.20 The alleged absence of employer-employee relationship cannot be raised for
the first time on appeal.21 The resolution of this issue requires the admission and
calibration of evidence and the LA and the NLRC did not pass upon it in their
decisions.22 We cannot permit petitioner to change its theory on appeal. It would be unfair
to the adverse party who would have no more opportunity to present further evidence,
material to the new theory, which it could have done had it been aware earlier of the new
theory before the LA and the NLRC.23 More so in this case as the supposed employer of
respondent which is DFP was not and is not a party to the present case.

In Pamplona Plantation Company v. Acosta,24 petitioner therein raised for the first time in
its appeal to the NLRC that respondents therein were not its employees but of another
company. In brushing aside this defense, the Court held:

x x x Petitioner is estopped from denying that respondents worked for it. In the first place,
it never raised this defense in the proceedings before the Labor Arbiter. Notably, the
defense it raised pertained to the nature of respondents’ employment, i.e., whether they are
seasonal employees, contractors, or worked under the pakyaw system. Thus, in its Position
Paper, petitioner alleged that some of the respondents are coconut filers and copra hookers
or sakadors; some are seasonal employees who worked as scoopers or lugiteros; some are
contractors; and some worked under the pakyaw system. In support of these allegations,
petitioner even presented the company’s payroll which will allegedly prove its allegations.

By setting forth these defenses, petitioner, in effect, admitted that respondents worked for
it, albeit in different capacities. Such allegations are negative pregnant – denials pregnant
with the admission of the substantial facts in the pleading responded to which are not
squarely denied, and amounts to an acknowledgment that respondents were indeed
employed by petitioner. 25 (Emphasis supplied.)

Also in Telephone Engineering & Service Co., Inc. v. WCC, et al.,26 the Court held that the
lack of employer-employee relationship is a matter of defense that the employer should
properly raise in the proceedings below. The determination of this relationship involves a
finding of fact, which is conclusive and binding and not subject to review by this Court.27
In this case, petitioner insisted that respondent was dismissed from employment for cause
and after the observance of the proper procedure for termination. Consequently, petitioner
cannot now deny that respondent is its employee. While indeed, jurisdiction cannot be
conferred by acts or omission of the parties, petitioner’s belated denial that it is the
employer of respondent is obviously an afterthought, a devise to defeat the law and evade
its obligations.28

It is a fundamental rule of procedure that higher courts are precluded from entertaining
matters neither alleged in the pleadings nor raised during the proceedings below, but
ventilated for the first time only in a motion for reconsideration or on appeal.29 Petitioner is
bound by its submissions that respondent is its employee and it should not be permitted to
change its theory. Such change of theory cannot be tolerated on appeal, not due to the strict
application of procedural rules, but as a matter of fairness.30

As to the legality of respondent’s dismissal, it is well settled that under Rule 45 of the Rules
of Court, only questions of law may be raised, the reason being that this Court is not a trier
of facts, and it is not for this Court to reexamine and reevaluate the evidence on
record.31 Findings of fact and conclusions of the Labor Arbiter as well as those of the NLRC
or, for that matter, any other adjudicative body which can be considered as a trier of facts
on specific matters within its field of expertise, should be considered as binding and
conclusive upon the appellate courts.32

Petitioner dismissed respondent from employment based on the recommendation of the

DFPDC holding respondent guilty of dishonesty for his direct participation in the "fake
condemnation" and "pilferage" of the missing 1,020 Marlboro Pack of 5
cigarettes.33 Respondent was implicated in the anomalous transaction by his co-employees
who pointed to the former as the one who ordered the other suspects to look for a vehicle
that would be used to transport the subject cigarettes. This, according to the DFPDC, was
odd and strange. With this act alone and by reason of his position, the DFPDC concluded,
and affirmed by petitioner, that respondent definitely had knowledge of the "fake
condemnation." From these circumstances, petitioner sustained the findings of dishonesty
and dismissed respondent from employment.

Again, we agree with the appellate court that DFPDC’s conclusions are not supported by
clear and convincing evidence to warrant the dismissal of respondent. In illegal dismissal
cases, the employer is burdened to prove just cause for terminating the employment of its
employee with clear and convincing evidence. This principle is designed to give flesh and
blood to the guaranty of security of tenure granted by the Constitution to employees under
the Labor Code.34 In this case, petitioner failed to submit clear and convincing evidence of
respondent’s direct participation in the alleged fake condemnation proceedings. To be sure,
unsubstantiated suspicions, accusations, and conclusions of employers do not provide for
legal justification for dismissing employees. In case of doubt, such cases should be resolved
in favor of labor, pursuant to the social justice policy of labor laws and the Constitution.35
WHEREFORE, premises considered, the petition is DENIED for lack of merit. The Court of
Appeals Decision dated May 31, 2006 and Resolution dated September 21, 2006, in CA-G.R.
SP No. 70839, are AFFIRMED.

SO ORDERED.
G.R. No. 183678 March 15, 2010

RENE VENTENILLA PUSE, Petitioner,

vs.
LIGAYA DELOS SANTOS-PUSE, Respondent.

DECISION

VILLARAMA, JR., J.:

Before this Court is a Petition for Review on Certiorari with Prayer for Injunction and
Temporary Restraining Order filed by petitioner Rene V. Puse assailing the Decision1 dated
28 March 2008 of the Court of Appeals in CA-G.R. SP No. 100421.

Petitioner is a registered Professional Teacher stationed at S. Aguirre Elementary School,

East District, Jose Panganiban, Camarines Norte, while respondent is a Barangay Rural
Health Midwife assigned at the Municipal Health Office of Jose Panganiban, Camarines
Norte.

It appears that on 10 January 1992, petitioner married respondent Ligaya Delos Santos-
Puse at the Municipal Trial Court (MTC) of Daet, Camarines Norte before the Hon. Judge
Oscar T. Osorio.2 He had two (2) children with her, and had a church wedding before
respondent found out that petitioner was already married. Respondent discovered that
petitioner had already gotten married to Cristina Pablo Puse at the Municipal Trial Court in
Cities of Laoag City, Ilocos Norte on 27 December 1986. Respondent likewise learned that
he has two (2) children with his first wife.3

Thus, on 2 August 2005, respondent filed a letter-complaint with the Director of the
Professional Regulation Commission (PRC), National Capital Region, Manila, through the
Director, PRC, Lucena City, seeking assistance regarding her husband against whom she
had filed a criminal case for "Bigamy" and "Abandonment." She alleged that her husband
has not been giving her and their children support.4

In a letter dated 16 August 2005, petitioner was directed by the PRC of Lucena City to
answer the complaint for immorality and dishonorable conduct filed by respondent.5 Per
directive, petitioner submitted his Compliance6 dated 31 August 2005 denying the charges
against him. He adopted his counter-affidavit and the affidavits of his witnesses, Jocelyn
Puse Decena and Dominador I. Blanco, which were submitted in Criminal Case Nos. 7228
and 7229 before the MTC of Jose Panganiban, Camarines Norte. He argued that if
respondent’s allegations were true, she herself would be equally guilty of immorality and
dishonorable conduct, as she was fully aware that petitioner was already married when she
married him. He added he has not abandoned respondent or their children and continually
gives support for their children.

In her Reply to Answer/Compliance7 dated 6 September 2005, respondent said she

married petitioner in good faith, unaware that he was already married to Cristina N. Pablo.
When she learned of petitioner’s deception regarding his marital status, she filed a case for
Bigamy before the MTC of Jose Panganiban, Camarines Norte, which found probable cause
to hold petitioner for trial. She found petitioner’s explanation "Na ako ay wala ng balita o
komunikasyon sa aking unang asawa at ang paniwala ko ay siya ay patay na at ang aking
kasal ay nawala ng saysay" to be lame and insufficient to justify his contracting a
subsequent bigamous marriage. She claimed that petitioner should have instituted in court
a summary proceeding for the declaration of presumptive death of his first wife before
contracting a subsequent marriage. In the absence of such declaration, her marriage to
petitioner is bigamous and void ab initio. She added that the affidavits of his sister and
close friend should not be given weight.

In his Rejoinder8 dated 11 October 2005, petitioner reiterated the arguments in his Answer
and prayed for the dismissal of the complaint on the ground that it was not verified and for
failure of the respondent to attach a valid certification against forum-shopping.

After due consideration of the complaint, affidavits, supporting documents and pleadings
filed, the Board of Professional Teachers, PRC, Lucena City, found a prima facie case for
Immorality and Dishonorable Conduct against petitioner, and directed respondent to pay
docket and legal research fees.9 The case was docketed as Adm. Case No. LCN-0016.

On 16 February 2007, the Board of Professional Teachers (Board), PRC, Manila, found
petitioner administratively liable of the charges and revoked his license as a Professional
Teacher. The dispositive portion of the Resolution reads:

IN VIEW OF ALL THE FOREGOING, the Board finds Rene Ventenilla Puse guilty as charged
and accordingly revokes his license as a Professional Teacher. He is ordered to surrender
his Certificate of Registration and his Professional Identification Card to the Professional
Regulation Commission within ten (10) days from the time this decision becomes final and
executory and to desist from the practice of the teaching profession under the pain of
criminal prosecution.

SO ORDERED.10

The Board ruled that contrary to petitioner’s contentions, it had jurisdiction over petitioner
and could validly order the revocation of his license, as petitioner was a professional
teacher. Under Section 23 of Republic Act No. 7836, otherwise known as the Philippine
Teachers Professionalization Act of 1994, the Board has the power and authority to
regulate the practice of teaching in the Philippines. The charge of Immorality and/or
Dishonorable Conduct is also one (1) of the grounds for the revocation or suspension of a
license of a professional teacher. For entering into a second marriage without first seeking
a judicial declaration of the presumptive death of his first wife and thereafter cohabiting
with his second wife and having children with her, petitioner is liable for Immorality and
Dishonorable Conduct. The Board added that whether respondent had knowledge of the
first marriage or not is irrelevant and further found petitioner’s claim that his cohabitation
with respondent was under duress, force or intimidation untenable. Citing Section
3,11 Article III and Section 3,12 Article XI of the Code of Ethics of Professional Teachers, and
the Oath of Professionals,13 the Board also explained that petitioner’s official life cannot be
detached from his personal life, contrary to his contention that the acts complained of were
purely private. His immorality and dishonorable conduct demonstrate his unfitness to
continue practicing his profession as he is no longer the embodiment of a role model for
young elementary school pupils, the Board ruled.

Petitioner moved for reconsideration of the decision but his motion was denied by the
Board per Resolution dated 9 July 2007.14

Aggrieved, petitioner filed a petition for review, docketed as CA-G.R. SP No. 100421, before
the Court of Appeals assailing the Resolutions dated 16 February 2007 and 9 July 2007 of
the Board.

On 28 March 2008, the Court of Appeals dismissed petitioner’s appeal.15 The appellate
court held that the applicable law was Rep. Act No. 4670 or the Magna Carta for Public
School Teachers because petitioner was occupying the position of Teacher I at the S.
Aguirre Elementary School. Under Rep. Act No. 4670, the one (1) tasked to investigate the
complaint was the Board of Professional Teachers. Thus, it was the Board of Professional
Teachers that had jurisdiction over the administrative case and not the Civil Service
Commission (CSC) or the Department of Education (DepEd) as contended by petitioner. As
to the finding of immorality and/or dishonorable conduct, the Court of Appeals agreed with
the Board in finding as untenable petitioner’s excuse that he believed his first wife to be
dead and that his first marriage was no longer subsisting. It said that petitioner should
have applied for a judicial order declaring his first wife presumptively dead before
marrying respondent. It further found without merit petitioner’s defense that the
complaint is of a private nature, explaining that his actions relate to the very nature of his
career: to teach, mold and guide the youth to moral righteousness.

As to petitioner’s defense of pari delicto, the appellate court upheld the Board’s finding that
respondent was in good faith when she married petitioner. The Board also afforded
petitioner due process.

On 30 June 2008, the Court of Appeals denied petitioner’s motion for reconsideration for
lack of merit.16 Hence, the present recourse.

Petitioner argues that:

I. THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN VALIDATING THE

RESOLUTIONS OF THE BOARD FOR PROFESSIONAL TEACHERS OF PRC-MANILA DESPITE
THE LACK OF SUBSTANTIAL EVIDENCE SUPPORTING THE SAME AND ITS PATENT
NULLITY FOR HAVING BEEN ISSUED OUTSIDE OF ITS JURISDICTION AND IN VIOLATION
OF THE RIGHT OF YOUR PETITIONER TO DUE PROCESS;

II. THE HONORABLE BOARD FOR PROFESSIONAL TEACHERS OF THE PROFESSIONAL

REGULATION COMMISSION (PRC)-MANILA AND LUCENA CITY, GRAVELY ERRED AND
COMMITTED GRAVE ABUSE OF DISCRETION, WHEN IT ASSUMED PRIMARY JURISDICTION
OVER THE UNVERIFIED COMPLAINT OF THE RESPONDENT IN CONTRAVENTION WITH
EXISTING RULES AND SETTLED JURISPRUDENCE ON THE MATTER;

III. THE HONORABLE BOARD FOR PROFESSIONAL TEACHERS OF THE PRC-MANILA

GRAVELY ERRED IN FINDING THE PETITIONER GUILTY OF IMMORALITY AND
DISHONORABLE CONDUCT AND SUBSEQUENTLY REVOKING HIS TEACHER’S LICENSE AS
A PENALTY NOTWITHSTANDING THE LACK OF SUBSTANTIAL EVIDENCE SUSTAINING
THE COMPLAINT, WHICH IN EFFECT VIOLATED THE RIGHT OF YOUR PETITIONER TO
DUE PROCESS OF LAW.17

From the foregoing, the issues may be summed up as follows: (1) Did the Board of
Professional Teachers have jurisdiction to hear and decide the complaint filed by
respondent against petitioner? (2) Was petitioner denied administrative due process? (3)
Was there substantial evidence to sustain the complaint and to hold petitioner liable?

On the first issue, petitioner argues that the proper forum to hear and decide the complaint
was either the CSC pursuant to CSC Resolution No. 991936 (Uniform Rules on
Administrative Cases in the Civil Service) or the DepEd pursuant to Rep. Act No. 4670
(Magna Carta for Public School Teachers). Since the charge was for violation of the Code of
Conduct and Ethical Standards for Public Officials and Employees, the complaint should
have been brought before the CSC.

We do not agree. An administrative case against a public school teacher may be filed before
the Board of Professional Teachers-PRC, the DepEd or the CSC, which have concurrent
jurisdiction over administrative cases such as for immoral, unprofessional or dishonorable
conduct.

Concurrent jurisdiction is that which is possessed over the same parties or subject matter
at the same time by two or more separate tribunals.18 When the law bestows upon a
government body the jurisdiction to hear and decide cases involving specific matters, it is
to be presumed that such jurisdiction is exclusive unless it be proved that another body is
likewise vested with the same jurisdiction, in which case, both bodies have concurrent
jurisdiction over the matter.19 The authority to hear and decide administrative cases by the
Board of Professional Teachers-PRC, DepEd and the CSC comes from Rep. Act No. 7836,
Rep. Act No. 4670 and Presidential Decree (P.D.) No. 807, respectively.

Under Section 23 of Rep. Act No. 7836, the Board is given the power, after due notice and
hearing, to suspend or revoke the certificate of registration of a professional teacher for
causes enumerated therein. Among the causes is immoral, unprofessional or dishonorable
conduct. Section 23 reads:

SEC. 23. Revocation of the Certificate of Registration, Suspension from the Practice of the
Teaching Profession, and Cancellation of Temporary or Special Permit. – The Board shall
have the power, after due notice and hearing, to suspend or revoke the certificate of
registration of any registrant, to reprimand or to cancel the temporary/special permit of
a holder thereof who is exempt from registration, for any of the following causes:
 (a) Conviction for any criminal offense by a court of competent jurisdiction;

(b) Immoral, unprofessional or dishonorable conduct;

(c) Declaration by a court of competent jurisdiction for being mentally unsound or

insane;

(d) Malpractice, gross incompetence, gross negligence or serious ignorance of the

practice of the teaching profession;

(e) The use of or perpetration of any fraud or deceit in obtaining a certificate of

registration, professional license or special/temporary permit;

(f) Chronic inebriety or habitual use of drugs;

(g) Violation of any of the provisions of this Act, the rules and regulations and other
policies of the Board and the Commission, and the code of ethical and professional
standards for professional teachers; and

(h) Unjustified or willful failure to attend seminars, workshops, conferences and the
like or the continuing education program prescribed by the Board and the
Commission. x x x20

Thus, if a complaint is filed under Rep. Act No. 7836, the jurisdiction to hear the same falls
with the Board of Professional Teachers-PRC.

However, if the complaint against a public school teacher is filed with the DepEd, then
under Section 9 of Rep. Act No. 4670 or the Magna Carta for Public School Teachers, the
jurisdiction over administrative cases of public school teachers is lodged with the
investigating committee created pursuant to said section, now being implemented by
Section 2, Chapter VII of DECS Order No. 33, S. 1999, also known as the DECS Rules of
Procedure. Section 9 of the Magna Carta provides:

SEC. 9. Administrative Charges. – Administrative charges against a teacher shall be heard

initially by a committee composed of the corresponding School Superintendent of the
Division or a duly authorized representative who should at least have the rank of a division
supervisor, where the teacher belongs, as chairman, a representative of the local or, in its
absence, any existing provincial or national teachers’ organization and a supervisor of the
Division, the last two to be designated by the Director of Public Schools. The committee
shall submit its findings and recommendations to the Director of Public Schools within
thirty days from the termination of the hearings: Provided, however, That where the school
superintendent is the complainant or an interested party, all the members of the committee
shall be appointed by the Secretary of Education.

A complaint filed under Rep. Act No. 4670 shall be heard by the investigating committee
which is under the DepEd.
As to the CSC, under P.D. No. 807, also known as the Civil Service Decree of the Philippines,
particularly Sections 9(j) and 37(a) thereof, the CSC has the power to hear and decide
administrative disciplinary cases instituted directly with it or brought to it on appeal.
These sections state:

SEC. 9. Powers and Functions of the Commission.–The Commission shall administer the Civil
Service and shall have the following powers and functions:

xxxx

(j) Hear and decide administrative disciplinary cases instituted directly with it in
accordance with Section 37 or brought to it on appeal;

xxxx

SEC. 37. Disciplinary Jurisdiction.–(a) The Commission shall decide upon appeal all
administrative disciplinary cases involving the imposition of a penalty of suspension for
more than thirty days, or fine in an amount exceeding thirty days’ salary, demotion in rank
or salary or transfer, removal or dismissal from office. A complaint may be filed directly
with the Commission by a private citizen against a government official or employee in
which case it may hear and decide the case or it may deputize any department or agency or
official or group of officials to conduct the investigation. The results of the investigation
shall be submitted to the Commission with recommendation as to the penalty to be
imposed or other action to be taken.

As the central personnel agency of the government, the CSC has jurisdiction to supervise
and discipline all government employees including those employed in government-owned
or controlled corporations with original charters.21 Consequently, if civil service rules and
regulations are violated, complaints for said violations may be filed with the CSC.

However, where concurrent jurisdiction exists in several tribunals, the body or agency that
first takes cognizance of the complaint shall exercise jurisdiction to the exclusion of the
others.22 Here, it was the Board of Professional Teachers, before which respondent filed the
complaint, that acquired jurisdiction over the case and which had the authority to proceed
and decide the case to the exclusion of the DepEd and the CSC.

Petitioner’s reliance on the cases of Emin v. De Leon23 and Office of the Ombudsman v.
Estandarte24 to support his claim that it was the DepEd Investigating Committee created
pursuant to Rep. Act No. 4670 which had jurisdiction to try him because he is a public
school teacher, is without merit as these cases are not in point. In Emin, the issue was
which between the DepEd Investigating Committee (under Rep. Act No. 4670) and the CSC
(under P.D. No. 807) had jurisdiction to try the administrative case, while in Estandarte, the
issue was which between the Office of the Ombudsman and the DepEd Investigating
Committee had jurisdiction over the administrative case filed in said case. In contrast, the
instant case involves the Board of Professional Teachers which, under Rep. Act No. 7836,
had jurisdiction over administrative cases against professional teachers and has the power
to suspend and revoke a licensed teacher’s certificate of registration after due proceedings.

As to the issue of due process, was petitioner denied administrative due process?

Petitioner questions the authority of the Board of Professional Teachers-Lucena City to

assume jurisdiction over the complaint, arguing that venue was improperly laid as he and
respondent are residents of Parang, Jose Panganiban, Camarines Norte; they were married
in Daet, Camarines Norte where the alleged immoral and dishonorable conduct was
committed; his professional teacher’s license was issued in the Central Office of the PRC in
Manila and renewed in the PRC Regional Office in Legaspi City, Albay; and he is a Teacher I
of S. Aguirre Elementary School, East District, Jose Panganiban, Camarines Norte.

Moreover, petitioner also faults the Board of Professional Teachers-Lucena City for acting
on respondent’s unverified letter in violation of CSC Resolution No. 94-0521 which
provides:

Section 4. Complaint in Writing and Under Oath. – No complaint against a civil servant shall
be given due course, unless the same is in writing and under oath.

He also asserts that respondent purposely filed the complaint before the Board of
Professional Teachers in Lucena City because the investigating officer was her colleague
and belonged to the same religious denomination as her. This, according to petitioner,
showed the partiality of the board. The Board of Professional Teachers also allegedly
denied him due process because he was allegedly informed of the retraction of the
testimony/affidavit of his witness (Dominador Blanco) only upon receipt of the Board’s
decision.

Petitioner’s contentions are without merit.

Petitioner’s allegation of improper venue and the fact that the complaint was not under
oath are not sufficient grounds for the dismissal of the complaint. Well to remember, the
case was an administrative case and as such, technical rules of procedure are liberally
applied. In administrative cases, technical rules of procedure and evidence are not strictly
applied and administrative due process cannot be fully equated with due process in its
strict judicial sense.25 The intention is to resolve disputes brought before such bodies in the
most expeditious and inexpensive manner possible.26

Petitioner was likewise amply afforded administrative due process the essence of which is
an opportunity to explain one’s side or an opportunity to seek reconsideration of the action
or ruling complained of.27 The records show that petitioner filed the following: (1)
Compliance-Answer to the Complaint; (2) Rejoinder; (3) Position paper; (4) Motion for
Reconsideration of the Resolution of the Board of Professional Teachers finding him guilty
as charged; and (5) Motion for Reconsideration of the decision of the Court of Appeals. He
attended the preliminary conference and hearing where he was able to adduce his
evidence. With the opportunities he had, he cannot claim he was denied due process.
As regards his claim that the Board of Professional Teachers-Lucena City was partial
because the investigating officer knew respondent personally, the same was not
substantiated. Even assuming arguendo that the investigating officer knew respondent,
convincing proof was still required to establish partiality or bias. Extrinsic evidence is
required to establish bias.28 For failure of petitioner to adduce such evidence, the
presumption of regularity in the performance of official duty prevails.29

That he was allegedly informed of Dominador Blanco’s retraction upon receipt of the
Board’s resolution is also of no moment. Even if it were true that petitioner was only
informed of the retraction when he received a copy of the Board’s resolution, there was still
no denial of due process because he still had the opportunity to question the same in his
Motion for Reconsideration. This, he did not do.

But was there substantial evidence to show that petitioner was guilty of immoral and
dishonorable conduct? On this issue, we likewise find against petitioner.

Petitioner claims good faith and maintains that he married respondent with the erroneous
belief that his first wife was already deceased. He insists that such act of entering into the
second marriage did not qualify as an immoral act, and asserts that he committed the act
even before he became a teacher. He said that for thirteen (13) years, he was a good
husband and loving father to his children with respondent. He was even an inspiration to
many as he built a second home thinking that he had lost his first. He wanted to make
things right when he learned of the whereabouts of his first family and longed to make up
for his lost years with them. He maintains that he never violated the Code of Ethics of
Professional Teachers but embraced it like a good citizen when he opted to stop his illicit
marriage to go back to his first family. He adds that respondent knew fully well he was
married and had children when they contracted marriage. Thus, she was also at fault.
Lastly, he claims there was no substantial proof to show that his bigamous marriage
contracted before he became a teacher has brought damage to the teaching profession.

However, the issues of whether petitioner knew his first wife to be dead and whether
respondent knew that petitioner was already married have been ruled upon by both the
Board of Professional Teachers and the Court of Appeals. The Board and the appellate court
found untenable petitioner’s belief that his first wife was already dead and that his former
marriage was no longer subsisting. For failing to get a court order declaring his first wife
presumptively dead, his marriage to respondent was clearly unlawful and immoral.

It is not the Court’s function to evaluate factual questions all over again. A weighing of
evidence necessarily involves the consideration of factual issues - an exercise that is not
appropriate for the Rule 45 petition filed. Under the 1997 Rules of Civil Procedure, as
amended, the parties may raise only questions of law in petitions filed under Rule 45, as the
Supreme Court is not a trier of facts. As a rule, we are not duty-bound to again analyze and
weigh the evidence introduced and considered in the tribunals below.30 This is particularly
true where the Board and the Court of Appeals agree on the facts. While there are
recognized exceptions to this general rule and the Court may be prevailed upon to review
the findings of fact of the Court of Appeals when the same are manifestly mistaken, or when
the appealed judgment was based on a misapprehension of facts, or when the appellate
court overlooked certain undisputed facts which, if properly considered, would justify a
different conclusion,31 no such circumstances exist in this case.

Indeed, there is no sufficient reason to overturn the findings of the Board as affirmed by the
appellate court. It is clear from the evidence that petitioner’s claim that he believed his first
wife Cristina Puse to be already dead was belied by the latter’s declaration. In the affidavit
submitted before the CSC in A.C. No. CSC RO5 D-06-012 entitled Cristina Puse v. Ligaya de
los Santos, Cristina Puse, petitioner’s first wife, declared that "Sometime in 1993,
complainant decided to work in Hongkong x x x. Since then up to the present, she has
regularly sent financial support to her children and husband. From time to time,
complainant would visit her family in the Philippines at least once a year every year." From
this statement, petitioner cannot claim that he had no knowledge of the whereabouts of his
first wife or that she was already dead given that she regularly sent her family financial
support and visited them in the Philippines at least once a year.

Petitioner’s contention that there was no substantial evidence to show his guilt because
respondent did not even formally offer her exhibits also does not persuade. As we have
already said, technical rules of procedure and evidence are not strictly applied in
administrative proceedings. The fact that respondent did not formally offer her exhibits the
way she would in the courts of justice does not prevent the Board of Professional Teachers
or Court of Appeals from admitting said exhibits and considering them in the resolution of
the case. Under Section 5 of PRC Resolution No. 06-342 (A), Series of 2006, also known as
the New Rules of Procedure in Administrative Investigations in the Professional Regulation
Commission and the Professional Regulatory Boards, "technical errors in the admission of
the evidence which do not prejudice the substantive rights of the parties shall not vitiate
the proceedings." Here, we do not find any evidence that respondent’s failure to formally
offer her exhibits substantially prejudiced petitioner.

Neither is there merit to petitioner’s contention that because he contracted the bigamous
marriage before he even became a teacher, he is not required to observe the ethical
standards set forth in the Code of Ethics of Professional Teachers.32

In the practice of his profession, he, as a licensed professional teacher, is required to strictly
adhere to, observe and practice the set of ethical and moral principles, standards and
values laid down in the aforesaid code. It is of no moment that he was not yet a teacher
when he contracted his second marriage. His good moral character is a continuing
requirement which he must possess if he wants to continue practicing his noble profession.
In the instant case, he failed to abide by the tenets of morality. Petitioner kept his first
marriage secret to his second wife. Unfortunately for him, his second wife discovered his
true marital status which led to the filing of the administrative and criminal cases against
him.

In Santos, Jr. v. NLRC, a case involving a teacher dismissed from work on account of
immorality, we declared:
On the outset, it must be stressed that to constitute immorality, the circumstances of each
particular case must be holistically considered and evaluated in light of the prevailing
norms of conduct and applicable laws. American jurisprudence has defined immorality as a
course of conduct which offends the morals of the community and is a bad example to the
youth whose ideals a teacher is supposed to foster and to elevate, x x x Thus, in petitioner’s
case, the gravity and seriousness of the charges against him stem from his being a married
man and at the same time a teacher.

xxxx

As a teacher, petitioner serves as an example to his pupils, especially during their formative
years and stands in loco parentis to them. To stress their importance in our society,
teachers are given substitute and special parental authority under our laws.

Consequently, it is but stating the obvious to assert that teachers must adhere to the
exacting standards of morality and decency. There is no dichotomy of morality. A teacher,
both in his official and personal conduct, must display exemplary behavior. He must freely
and willingly accept restrictions on his conduct that might be viewed irksome by ordinary
citizens. In other words, the personal behavior of teachers, in and outside the classroom,
must be beyond reproach.

Accordingly, teachers must abide by a standard of personal conduct which not only
proscribes the commission of immoral acts, but also prohibits behavior creating a suspicion
of immorality because of the harmful impression it might have on the students. Likewise,
they must observe a high standard of integrity and honesty.

From the foregoing, it seems obvious that when a teacher engages in extra-marital
relationship, especially when the parties are both married, such behaviour amounts to
immorality, justifying his termination from employment.33

The Code of Ethics of Professional Teachers contains, among others, the following:

PREAMBLE

Teachers are duly licensed professionals who possess dignity and reputation with high
moral values as well as technical and professional competence. In the practice of their
noble profession, they strictly adhere to, observe, and practice this set of ethical and moral
principles, standards, and values.

xxxx

ARTICLE II

THE TEACHER AND THE STATE

Section 1. The schools are the nurseries of the citizens of the state. Each teacher is a trustee
of the cultural and educational heritage of the nation and is under obligation to transmit to
learners such heritage as well as to elevate national morality, x x x.

xxxx

Section 3. In the interest of the State of the Filipino people as much as of his own, every
teacher shall be physically, mentally and morally fit.

xxxx

ARTICLE III

THE TEACHER AND THE COMMUNITY

xxxx

Section 3. Every teacher shall merit reasonable social recognition for which purpose he
shall behave with honor and dignity at all times and refrain from such activities as
gambling, smoking, drunkenness and other excesses, much less illicit relations.

xxxx

ARTICLE XI

THE TEACHER AS A PERSON

Section 1. A teacher shall live with dignity in all places at all times.

xxxx

Section 3. A teacher shall maintain at all times a dignified personality which could serve as
model worthy of emulation by learners, peers, and others. [Emphasis supplied.]

The foregoing provisions show that a teacher must conform to the standards of the Code.
Any deviation from the prescribed standards, principles and values renders a teacher unfit
to continue practicing his profession. Thus, it is required that a teacher must at all times be
moral, honorable and dignified.

The discovery of petitioner’s bigamous marriage has definitely caused damage to the
teaching profession. How can he hold his head up high and expect his students, his peers
and the community to look up to him as a model worthy of emulation when he failed to
follow the tenets of morality?

The fact that he is now allegedly walking away from his second marriage in order to be
with his first family to make up for lost time does not wipe away the immoral conduct he
performed when he contracted his second marriage. If we are to condone immoral acts
simply because the offender says he is turning his back on his immoral activities, such
would be a convenient excuse for moral transgressors and which would only abet the
commission of similar immoral acts.1awph!1

His assertion that he fulfilled his responsibilities as a father and a husband to his second
family will, even if true, not cleanse his moral transgression. In a case involving a lawyer
who raised this same defense, we held:

Before we write finis to this case, we find it necessary to stress certain points in view of
respondent’s additional reason why he should be exonerated – that he loves all his children
and has always provided for them. He may have indeed provided well for his children. But
this accomplishment is not sufficient to show his moral fitness to continue being a member
of the noble profession of law. It has always been the duties of parents – e.g., to support,
educate and instruct their children according to right precepts and good example; and to
give them love, companionship and understanding, as well as moral and spiritual guidance.
But what respondent forgot is that he has also duties to his wife. As a husband, he is obliged
to live with her; observe mutual love, respect and fidelity; and render help and support.
And most important of all, he is obliged to remain faithful to her until death.34

Petitioner’s claim that he is a good provider to his second family is belied by the complaint
of respondent wherein it was alleged that he failed financially to support his second family.
Moreover, he is already delinquent as to his duties to his second wife. How can he live with
her, observe mutual love, respect and fidelity, render help and support, and to remain
faithful to her until death when he has another family to whom he is returning to?

All told, petitioner’s act of entering into said second marriage constitutes grossly immoral
conduct. No doubt, such actuation demonstrates a lack of that degree of morality required
of him as a member of the teaching profession. When he contracted his second marriage
despite the subsistence of the first, he made a mockery of marriage, a sacred institution
demanding respect and dignity.

We now go to the penalty imposed on petitioner. The penalty imposed on petitioner was
the revocation of his license which penalty was upheld by the Court of Appeals. He claims
that such penalty was harsh and inappropriate. He cites Section 22, Rule XIV of
the Omnibus Civil Service Rules and Regulations which states that disgraceful and immoral
conduct is a grave offense punishable by suspension for six (6) months and one (1) day to
one (1) year for the first offense and dismissal for the second offense. Considering that the
charge was supposedly his first offense and taking into account his years of committed
service, the commensurate penalty, according to petitioner, is only the suspension of his
professional license. He refers to the case of Vitug v. Rongcal,35 where this Court considered
remorse and the brevity of the illicit relationship as mitigating circumstances taken in favor
of the respondent lawyer.

It must be remembered, however, that petitioner was charged before the Board of
Professional Teachers under Rep. Act No. 7836 and not under Civil Service Law, Rules and
Regulations. Under Section 23 of Rep. Act No. 7836, the Board has the power to suspend
or revoke the certificate of registration36 of any teacher for any causes mentioned in said
section, one (1) of which is immoral, unprofessional or dishonorable conduct. The Board
has the discretion, taking into account the circumstances obtaining, to impose the penalty
of suspension or revocation. In the imposition of the penalty, the Board is not guided by
Section 22 of Rule XIV of the Omnibus Civil Service Rules and Regulations which provides
for suspension for six (6) months and one (1) day to one (1) year for the first offense, and
dismissal for the second offense for disgraceful and immoral conduct. Petitioner, therefore,
cannot insist that Section 22 be applied to him in the imposition of his penalty, because the
Board’s basis is Section 23 of Rep. Act No. 7836 which does not consider whether the
offense was committed the first or second time.

As to the supposed mitigating circumstances of remorse and brevity of the illicit

relationship, these cannot be appreciated in petitioner’s favor, as these circumstances are
not present in the instant case. We do not find any expression of remorse in petitioner.
What we note, instead, is obduracy on his part. Despite the clear evidence (first wife’s
statement that she regularly sends financial support to her children and husband [referring
to petitioner] and that she visits them in the Philippines at least once a year) showing that
petitioner knew that his first wife was still alive, he remains unyielding on his stand that he
thought that his wife was already deceased. We also cannot consider the illicit and immoral
relationship to be brief because it lasted for more than twelve (12) years until respondent
learned about petitioner’s deception.

Under the circumstances, we find the penalty imposed by the Board proper.

WHEREFORE, the petition is DENIED. The Decision dated 28 March 2008 of the Court of
Appeals in CA-G.R. SP No. 100421 is AFFIRMED.

With costs against petitioner.

SO ORDERED.
G.R. No. 74187 January 28, 1988

STANFORD MICROSYSTEMS, INC., petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION and HENRY TRINIO, respondents.

NARVASA, J.:

This special civil action of certiorari concerns the appropriateness or commensurateness of

the penalty imposed by an employer on an employee found guilty, after due investigation,
of breaches of company regulations.

Henry Trinio was employed by Stanford Microsystems, Inc. as "security coordinator," to

exercise supervision over all guards assigned to secure the latter's premises by an agency
with which Stanford had a security agreement.

He was dismissed from employment on July 12, 1982, after an investigation conducted by
Stanford established that he had committed serious breaches of company rules in the night
of July 4, 1982. It appears that on that night, at about 11 o'clock, Trinio allowed two female
security guards, Vicky Magaling and Excelsa Mina to come inside the Security Office; he
caused the introduction of intoxicating liquor into the premises of which he imbibed; he
invited and allowed a guard on duty, Marcelino Medrana, to partake of the liquor when the
latter entered the office; and thereafter he, a married man, had sexual intercourse with
Guard Mina, a married woman, on top of the desk of the Security Head, while Magaling
pretended to be asleep during all the time that the lustful act was commenced and
consummated.

Professing innocence, Trinio lost no time in haling his employer before the Ministry of
Labor and Employment. He filed a complaint for unfair labor practice and illegal dismissal
against Stanford on July 16, 1982. After due proceedings, judgment was rendered thereon
by the Labor Arbiter on September 30, 1983, as follows:

IN VIEW OF THE FOREGOING, the charge of unfair labor practice is hereby

dismissed for lack of factual basis. As regards the charge of illegal dismissal,
respondent exceeded its disciplinary authority when it terminated the
services of complainant. In accordance wit its rules, a mere suspension
should issue and that suspension should not last for more than thirty (30)
days. Effective August 13, 1982, the suspension lapses and complainant
becomes entitled to backwages and other fringe benefits thereafter. The
computation of said monetary award is hereby ordered until complainant is
finally reinstated.

Stanford seasonably brought the case to the National labor Relations Commission on
appeal The Commission however declined to sustain Stanford's contention that the Arbiter
had committed grave abuse of discretion in ruling that it had "exceeded its disciplinary
authority when it terminated ... (Trinio's) services" notwithstanding said Arbiter's own
findings that Trinio had indeed committed serious misconduct and violations of company
rules and regulations, including what he characterized as an act "repulsive to morality." By
judgment dated March 10, 1986, the Commission affirmed the Arbiter's direction for
Trinio's reinstatement but modified the award of back wages by limiting the same to
two(2) years, without deduction or qualification of any kind.

In the special civil action of certiorari instituted by it in this Court, Stanford maintains that
the NLRC was guilty of grave abuse of discretion in affirming the decision of the Labor
Arbiter in light of the latter's patent errors —

(1) in ordering reinstatement of Trinio despite his factual finding that Trinio was guilty of
serious misconduct and other infringements of Company rules and regulations; and

(2) in holding the Company to be bound by its own rules and regulations prescribing
penalties corresponding to specific offenses as to estopped to discharge an employee on
grounds provided in the Labor Code.

There is merit in the petition, warranting its concession. The writ of certiorari prayed for
will issue.

That there is sufficient evidence proving the acts ascribed to Trinio is not seriously in
dispute. Trinio did violate his employer's rules: he allowed women into the Security office;
he allowed liquor to be brought in; he drank that liquor and invited another security guard
to drink it, too; he and his lady friend, both being married but no to each other, satisfied
their carnal passion in a business office and the known presence of another person. This
last act was, to be sure, one "repulsive to morality," as the Labor Arbiter has put it.

The issue does not theretofore lie in the facts, or the sufficiency of the evidence in proof
thereof. The issue posed, rather, is whether or not under the established facts, the penalty
of dismissal is merited, instead of merely that of suspension for not more than 30 days —
which is what the company rules by their literal terms indicate. The respondent
Commission, in the Comment submitted in its behalf by the Solicitor General, concedes that
the formulation and promulgation by an employer of rules of conduct and discipline for its
employees, inclusive of those deemed to constitute serious misconduct, cannot and should
not operate to altogether negate his prerogative and responsibility to determine and
declare whether or not facts not explicitly set out in the rules may and do constitute such
serious misconduct as to justify the dismissal of the employee or the imposition of
sanctions heavier than those specifically and expressly prescribed. The concession is
dictated by logic; otherwise, the rules, literally applied, would result in absurdity: grave
offenses, e.g., rape, would be penalized by mere suspension; this, despite the heavier
penalty provided therefor by the Labor Code, or otherwise dictated by common sense.

But said public respondent would minimize the gravity of Trinio's acts, by pointing out that
the latter was only seen to be kissing his lady friend while embracing her tightly, and that
there was no clear showing that he had been drinking to excess, and hence, the
commensurate penalty for such "first offense" is not separation from employment but
suspension and forfeiture of backwages. The public respondent theorizes that while it was
in truth morality wrong for Trinio to have done what he did, it was not sufficient cause for
the company to lose trust and confidence in him. Implicit in the argument is the
acknowledgment that if the facts were really as described by the employer's proofs and as
found by the Labor Arbiter the penalty of dismissal from the service would be otherwise
appropriate.

The evidence has been misread by public respondent. The evidence does establish the
commission by Trinio of the acts with which he was charged: drinking liquor on company
time in company premises; openly and deliberately sanctioning breach of company rules by
persons under his superintendence; public performance of adulterous act of sexual
intercourse on company time and in company premises. Here was no mere tolerance or
disregard of infringement of company rules for the enforcement of which Trinio was
particularly charged, which would be bad enough. Here was an open invitation by him for
others to violate those rules, and a transgression even by him of those same rules in a
manner that could not but expose his personal depravity, and betray his contempt and
scorn of those rules as well as the lightness with which he held the responsibility entrusted
to him to protect his employer's premise, chattels, interest, reputation and integrity. The
offenses cannot be excused upon a plea of their being "first offenses," or have not resulted
in prejudice to the company in any way. No employer may rationally be expected to
continue in employment a person whose lack of morals, respect and loyalty to his
employer, regard for his employer's rules, and appreciation of the dignity and
responsibility of his office, has so plainly and completely been bared.

That there should be concern, sympathy, and solicitude for the rights and welfare of the
working class, is meet and proper. That in controversies between a laborer and his master,
doubts reasonably arising from the evidence, or in the former's favor, is not an
unreasonable or unfair rule. But that disregard of the employer's own rights and interests
can be justified by that concern and solicitude is unjust and unacceptable. 1

WHEREFORE, the Decision of the National Labor Relations Commission dated March 10,
1986 and that of the Labor Arbiter dated September 30, 1983 are annulled and set aside,
and the complaint of Henry Trinio against the petitioner for unfair labor practice and illegal
termination of employment, dismissed for lack of factual and legal basis. The judgment is
immediately executory, and no motion for extension of time to file a motion for
reconsideration thereof will be entertained.