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DISSENTING OPINION
BRION,J.:
The Case
The case in caption was a Second Division illegal dismissal case that
the Court en bane accepted for decision pursuant to Section 3, Rule 2 of the
Internal Rules of the Supreme Court.
The case posed two issues to the Court for resolution. The first is the
manner of review that the Court should undertake. This is an issue that
underlies all the Court's decision making in light of the various modes of
review and essentials that the Rules of Court require. The second and core
issue relates to the merits of the legality or illegality of the dismissal:
whether the Labor Code requirements governing the dismissal of a
probationary employee had been complied with, considered from the prism
of the mode of review and the nature of the decision under review.
The Labor Arbiter ruled that the dismissal had been valid but the
National Labor Relations Commission (NLRC) reversed the Labor
Arbiter; found the dismissal illegal; and damages and attorney’s fees
because of the manner the dismissal was effected. The Court of Appeals
(CA) found no grave abuse of discretion and accordingly denied the Rule 65
petition that the petitioner Abbott brought.
A labor case finds its way into the judicial system from the NLRC
whose decision is final and executory. Finality simply means that the NLRC
ruling is no longer appealable; the legal intent is to confine adjudication of
labor cases to labor tribunals with the expertise in these cases and thereby
bring the resolution of the case to a close at the soonest possible time.
in November 1974; labor cases were directly brought to this Court but only
on jurisdictional grounds under Rule 65.1
1
The following explanation was made in my Rejoinder to Reply (On the manner of
reviewing a Court of Appeals Labor Ruling) that was submitted to the Court En Banc in the
course of the exchanges on this aspect of the case. The explanation distinguished between
appealable cases and those that, while not appealable, can still be reviewed through a Rule 65
petition for certiorari.
“For a full understanding of these distinctions, it must be kept in mind that several levels of review
may exist for rulings emanating from the lowest levels of adjudication before they reach the Supreme
Court. The ruling of an inferior court or tribunal (for example, the Regional Trial Court [RTC]) is first
reviewed by an appellate court (the CA) on questions of fact or mixed questions of fact and law; the CA
decision may then in turn be reviewed by the Supreme Court under Rule 45.
Generally, two types of decisions or rulings may be brought to the appellate courts for review and
decision; the appellate courts' decisions are in turn subject to review by the Supreme Court.
The first type relates to cases that come to the appellate court by way of appeal (e.g., the ruling of
the RTC in the exercise of its original jurisdiction that is appealed to the CA on issues of facts and law
under Rule 41 of the Rules of Court). The second type involves the review by the CA of decisions of
inferior courts or tribunals whose rulings, by law, are final and executory (e.g., the ruling of the National
Labor Relations Commission [NLRC] that under the Labor Code is final and executory). This is the review
of rulings that, by law, is not appealable and thus can only be made on limited jurisdictional grounds.
A CA ruling under the first type can be challenged by the aggrieved party before the Supreme
Court through a petition for review on certiorari under Rule 45 of the Rules of Court. Under Rule 45, the
review is only on questions of law unless a review of questions of fact is allowed under the terms
established by jurisprudence. This is the case in the example given above - an RTC ruling that is appealed
to the CA on both factual and legal grounds and which CA decision on appeal is now before the Supreme
Court for further review. This may be the model of a Supreme Court review that the ponente might have
had in mind in asserting that the Supreme Court should be able to undertake a review of the full range of
legal issues before it.
In the second type as exemplified above, a ruling by the NLRC, although final and executory, may
be brought to the CA under Rule 65 of the Rules of Court, i.e., on a petition for certiorari, limited to
jurisdictional grounds, usually for grave abuse of discretion amounting to lack or excess of jurisdiction.
The final and executory nature of the NLRC decision under review can best be appreciated when it is
considered that the decision can immediately be implemented unless a temporary restraining order or
injunction is issued by the CA; the Rule 65 mode of review is rendered necessary because the decision or
ruling under review, by law, is already final. Finality1 means that the decision is no longer appealable1 and
may be reviewed only when the ruling is void because of jurisdictional defects.”
2
356 Phil. 811 (1998).
Dissenting Opinion 4 G.R. No. 192571
Thus, under the Rule 65 review by the CA, Montoya reiterates that the
sole ground or issue allowed is jurisdictional – the presence or absence of
grave abuse of discretion on the part of the NLRC in ruling on the case. To
state the obvious, this kind of review would have made it easier for the CA
to handle the case; in the absence of a grave abuse of discretion, it can
dismiss labor cases for lack of grave abuse of discretion as we do in this
Court.
3
G.R. No. 183329, August 27, 2009, 597 SCRA 334.
4
Id. at 342-343.
Dissenting Opinion 5 G.R. No. 192571
(2) Deciding any other jurisdictional error that attended the CA’s
interpretation or application of the law.
In this kind of limited review, the Court avoids reviewing a labor case
by re-weighing the evidence or re-evaluating its sufficiency; the task of
weighing or evaluation, as a rule, lies within the NLRC’s jurisdiction as an
administrative appellate body.
If the NLRC ruling has basis in the evidence and the applicable law
and jurisprudence, then no grave abuse of discretion exists and the CA
should so declare and, accordingly, dismiss the petition. If grave abuse of
discretion exists, then the CA must grant the petition and nullify the NLRC
ruling, entering at the same time the ruling that is justified under the
evidence and the governing law, rules and jurisprudence. In our Rule 45
review, this Court must deny the petition if it finds that the CA correctly
acted.
5
Rejoinder to Reply, supra, at Note 1.
Dissenting Opinion 6 G.R. No. 192571
evidence adduced in the case and for the evaluation of the correctness of the
application of the law to the evidence found. This is a review that a Rule 45
petition does not allow.
xxxx
The ponencia apparently fully agrees with the above statement of the
applicable law as it substantially recites the same requirements, including the
consequence that upon failure to comply with these same requirements, “the
employee is deemed as a regular and not a probationary employee.”6 It
continues, however, with a twist that effectively negates what it has stated
and admitted about the need to communicate the regularization standards to
the employee, thus:
Based on these premises, the ponencia then deftly argues that because
the duties and responsibilities of the position have been explained to the
respondent, an experienced human resource specialist, she should have
known what was expected for her to attain regular status.
6
Decision, at page 12.
Dissenting Opinion 8 G.R. No. 192571
1st. The law and the rules require that there performance standards
communicated at the time of engagement to the probationary employee.
The performance standards to be met are the employer’s specific
expectations of how the probationary employee should perform.
2nd. The ponencia glosses over the communication aspect. Not only
must there be express performance standards (except in specific instances
defined in the implementing rules, discussed below); there must be effective
communication. If no standards were provided, what would be
communicated?
none had been prescribed in the first place, under what basis could the
employee then be assessed for purposes of termination or regularization?
This was what the NLRC found, leading the CA to conclude that
no grave abuse of discretion intervened in the NLRC’s ruling because
its findings were supported by the evidence on record and by the
correctly-chosen applicable law. In stark contrast, the ponencia’s reading,
although based on the same legal premises, was based on shaky
assumptions, not on the hard evidence that the tribunals below appreciated.
The best evidence of what the ponencia did when it saw matters
otherwise, is its own statement: its basis is not what the submitted evidence
state but on what she was “largely impelled” to recognize. To quote the
ponencia’s own words:
The petitioner’s other pieces of evidence that the ponencia cited and
used to support its conclusion do not and cannot, however, satisfy the
requirement for performance standards that must be communicated at the
time of engagement.
Specifically, these were the Offer Sheet dated December 7, 2004, and
the pre-employment orientation on the respondent’s duty to implement the
petitioner’s Code of Conduct, office policies and training program.
8
Id. at 77.
Dissenting Opinion 11 G.R. No. 192571
the staff the respondent managed and supervised. Additionally, these were
all relayed prior to or after the respondent was engaged by the petitioner.
From this strained and stretched reading that magically saw the required
prescribed performance standards that – by the factual findings of the NLRC
and the CA – never existed, the ponencia went on to conclude:
9
See Article 281 of the Labor Code, as amended.
Dissenting Opinion 12 G.R. No. 192571
From the point of law, compliance with the first requirement is not
also satisfied by the petitioner’s assertion that the respondent knew that only
one performance standard applied to all employees. Notably, the law
requires proof that the employer specifically made known to her the
performance standards applicable to her to enable her to qualify for regular
Dissenting Opinion 13 G.R. No. 192571
Two factors tilt the balance in favor of the legal correctness of the
CA’s ruling. The first is that the respondent’s position (found by the NLRC
to be meritorious) was not without any basis in fact and in law. The second
is from the latter perspective; Article 4 of the Labor Code and established
jurisprudence hold that any doubt in a labor situation must be resolved in the
employee’s favor.
Thus, again, the ponencia’s case and its conclusion must fail.
I can only agree with one aspect of the ponencia — its admission that
Abbott’s internal procedures were not applied to the respondent. I cannot
dispute and I fully agree with the following passages of the ponencia:
demands that when it does create its own policies and thereafter notify its
employees of the same, it accords upon itself the obligation to faithfully
implement them. Indeed, a contrary interpretation would entail a
disharmonious relationship in the work place for the laborer should never
be mired by the uncertainty of flimsy rules in which the latter’s labor
rights and duties would, to some extent, depend.10 [footnotes in the
original omitted]
10
Decision, at pp. 16 – 17.
Dissenting Opinion 15 G.R. No. 192571
In my view, the NLRC and the CA were not without basis in making
their conclusion as the incident, taken together with the facts supported by
the available evidence, is vital in appreciating the nature of the respondent’s
employment.
11
Pages 4-5 of the ponencia.
12
Ibid.; rollo, pp. 260 and 271.
13
Rollo, pp. 1044-1045.
14
Aliling v. Feliciano, G.R. No. 185829, April 25, 2012, 671 SCRA 186, 205.
Dissenting Opinion 16 G.R. No. 192571
An important legal point that should not be lost in considering this case
is that a probationary employee does not have lesser rights than a
regular employee under the Labor Code in terms of the just cause for
the termination of an employment. While the strict application of Article
282 of the Labor Code may be relaxed because the employee is still under
probation (so that analogous probationary status rules may apply), the same
essential just cause for dismissal must be present and must be proven. In
other words, probationary employment does not mean that the employee is
under an “employment at will” situation as that phrase is understood in
American jurisprudence. To reiterate, the fact that the respondent was still in
her probationary period of employment did not lessen the burden of proof
that the law imposed on the petitioners to prove the just cause for her
dismissal.17 Probationary employees are protected by the security of tenure
provision of the Constitution and they cannot be removed from their position
except only for cause.18
In the present case, the evidence did not show the just cause that Article
282 of the Labor Code requires. No evidence on record showed the
commission by the respondent of any of the following acts or omissions:
15
Ibid.
16
Rollo, p. 78.
17
Aberdeen Court, Inc. v. Agustin, Jr., 495 Phil. 706, 712 (2005).
18
Ibid.
Dissenting Opinion 17 G.R. No. 192571
Significantly, the NLRC appreciated all these in this case and this
appreciation was duly noted and evaluated by the CA. As there was in
fact basis in fact and in law in the NLRC’s findings on this aspect of the
case, again the CA correctly found no grave abuse of discretion in the
NLRC’s actions.
From the records, the respondent received only one notice and was
not given ample opportunity to be heard before her employment was
terminated. The respondent was not served a first written notice indicating:
(1) the grounds for terminating her employment; and (2) a directive giving
her the opportunity to submit a written explanation within a reasonable
period. Neither was the respondent given the ample opportunity to be heard
as required by law. There was only compliance with the second notice
requirement through the petitioner’s letter dated May 19, 2005 which was
already a written notice of termination of employment.23
20
Dolores T. Esguerra v. Valle Verde Country Club, Inc., et al., G.R. No. 173012, June 13, 2012.
21
Ibid.
22
G.R. No. 152048, April 7, 2009, 584 SCRA 110, 127.
23
Rollo, p. 78.
Dissenting Opinion 20 G.R. No. 192571
The ponencia, however, forgets that the single notice rule applies only
if the employee is validly on probationary basis; it does not apply where the
employee is deemed a regular employee for the company’s failure to
provide and to communicate a prescribed performance standard applicable
to the probationary employee. The ponencia itself admits that in such a
case, the employee would then be a regular employee. Since the petitioner
utterly failed to support by evidence its compliance with the legal
requirements on performance standards, the two-notice requirement for
regular employees must perforce fully apply.
The above analysis shows that the respondent had been illegally
dismissed from her employment. The petitioner failed to show that her
dismissal was for a valid cause. The petitioner also failed to respect the
respondent’s procedural due process rights under the law.
24
Session Delights Ice Cream and Fast Foods v. Court of Appeals (Sixth Division), G.R. No.
172149, February 8, 2010, 612 SCRA 10, 25, citing Mt. Carmel College v. Resuena, G.R. No.
173076, October 10, 2007, 535 SCRA 518, 541.
Dissenting Opinion 21 G.R. No. 192571
A review of the facts of the case shows ample evidence supporting the
petitioner’s bad faith, as shown by the manner in which the respondent’s
employment was terminated. The NLRC, in its decision, exhaustively
discussed the petitioner’s bad faith, as demonstrated by the actions of the
individual petitioners:
25
Macasero v. Southern Industrial Gases Philippines, G.R. No. 178524, January 30, 2009, 577
SCRA 500, 507.
26
Nazareno v. City of Dumaguete, G.R. No. 177795, June 19, 2009, 590 SCRA 110, 141-142. See
also Civil Code, Articles 2208, 2217, 2219 and 2232.
27
MAM Realty Development Corporation v. NLRC, G.R. No. 114787, June 2, 1995, 244 SCRA 797,
803.
Dissenting Opinion 22 G.R. No. 192571
On May 23, 2005, the private respondent still reported for work since
petitioner Abbott had not yet handed the termination notice to her.
However, the security guard did not allow her to enter the Hospira ALSU
office pursuant to Ms. Walsh[’s] instruction. She requested Ms. Walsh that
she be allowed to enter the company premises to retrieve her last
remaining things in her office which are mostly her personal belongings.
She was allowed to enter. However, she was surprised to see her drawers
already unlocked and, when she opened the same, she discovered that her
small brown envelope x x x, white pouch containing the duplicate keys,
and the staff’s final evaluation sheets were missing. The private
respondent informed Ms. Bernardo about the incident. The latter
responded by saying she was no longer an employee of the company since
May 19, 2005.
xxxx
These explanations for the actions taken show that the NLRC’s
recognition of the bad faith was not without basis and was in fact
supplemented by the CA in the appellate court’s own confirmatory
explanation.
At the risk of repetition, the adduced evidence, in the first place, did
not prove that the respondent’s work failed to comply with the petitioner’s
performance standard as no proof of the performance standard applied to the
respondent’s work was actually presented. The respondent’s employment
was also terminated without undergoing any performance evaluation.
The evidence adduced did not also prove any act of omission under
Article 282 of the Labor Code committed by the respondent. No evidence
was presented on the respondent’s actual work so as to determine whether
her acts/omissions constituted a just cause for termination, such as serious
misconduct or gross or habitual neglect of duty or any other analogous cause
to the just causes mentioned in the law.
In this case, the bad faith exhibited by the individual petitioners was
clearly established in the records. The individual petitioners’ bad faith was
demonstrated by the evidence of how they unfairly effected the termination
of the respondent’s employment.
The narration of facts of the Labor Arbiter, the NLRC and the CA
shows, among others, that: (1) the individual petitioners did not follow
the petitioner’s prescribed procedure performance evaluation as, in fact,
the respondent’s work was not evaluated; (2) the individual petitioners,
through their concerted actions, ganged up on the respondent in forcing her
to resign from employment; (3) the individual petitioners pressured the
respondent to resign by announcing her resignation to the office staff,
thereby subjecting her to unwarranted humiliation; and (4) they blackmailed
the respondent by withholding her personal possessions until she resigned
from employment.
Bad faith can also be inferred from the lack of fairness and
underhandedness employed by the individual petitioners on how they
informed the respondent of the termination of her employment. The records
disclose that the respondent was lured into a meeting on the pretext that her
work performance was to be evaluated; she was caught off-guard when she
was informed that her employment had been terminated. Aside from the
abrupt notification, bad faith can also be deduced from the fact that the
termination was made immediately effective; the respondent was
immediately banned from the petitioner’s premises after she was informed
that her employment had been terminated.
III. Conclusion
I close this Dissent with the note that the constitutional protection of
security of tenure is a right enjoyed by every employee. Employment,
regardless of the employment status, may only be terminated for cause
and within the procedure prescribed by law and jurisprudence. A review of
the records shows that no reversible error was committed by the CA in
finding the NLRC free from any taint of grave abuse of discretion in ruling
Dissenting Opinion 25 G.R. No. 192571
QfVBJQ'
ARTUROD.B~
Associate Justice