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Republic of the Philippines

SUPREME COURT

Manila

THIRD DIVISION

G.R. No. 78491 March 16, 1989

STARLITE PLASTIC INDUSTRIAL CORPORATION, petitioner,

vs.

NATIONAL LABOR RELATIONS COMMISSION and EDGAR

GOMEZ, respondents.

Iigo S. Fojas for petitioner.

The Solicitor General for public respondent.

CORTES, J.:

Petitioner Starlite Plastic Industrial Corporation (STARLITE) seeks to set aside

the 18 February 1987 decision of the National Labor Relations Commission

(NLRC) ordering the reinstatement of private respondent Edgar Gomez

(GOMEZ) with full backwages, and its Resolution dated 21 April 1987 denying

petitioner's motion for reconsideration.

The antecedents of the case are as follows:

Private respondent GOMEZ was employed as a factory worker by STARLITE

sometime in March 1981. On 22 June 1984, STARLITE dismissed him on the

ground that he was caught attempting to steal one ballast costing P80.00.

STARLITE reported the matter to the police on 19 July 1984, after grievance

meetings failed to resolve the controversy. A criminal complaint was filed against

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GOMEZ, but the investigating fiscal dismissed the same saying that STARLITE

failed to establish aprima facie case against GOMEZ. On 13 August 1983,

private respondent GOMEZ filed a complaint for illegal dismissal against

STARLITE. After the parties submitted their respective position papers, the Labor

Arbiter rendered his decision on 15 January 1985 dismissing the complaint for

lack of merit. GOMEZ appealed the decision to the public respondent NLRC

which in a decision dated 18 February 1987 reversed the ruling of the Labor

Arbiter.

In contending that the decision of the public respondent NLRC was rendered in

grave abuse of discretion petitioner argues that the act of dishonesty of GOMEZ

led petitioner to lose its trust and confidence in him and is more than sufficient tojustify his dismissal.

In his position paper, GOMEZ averred that he started working as laborer in

petitioner's factory sometime in March 1981. In the course of his employment, he

joined and later became a board member of the labor union KAMPIL, and

participated in a strike against STARLITE. On 22 June 1984, STARLITE

summarily dismissed him on the claim of having attempted to steal one ballast

costing P80.00.

STARLITE's version of the events which led it to dismiss GOMEZ, is as follows:

. . . That on 22 June 1984, at about 12:43 p.m. complainant was

about to go out of the factory; that he was about 7 to 12 meters

from the gate where the Security Guard was posted when he

suddenly turned back and proceeded to the back of the office. He

took something in the front part of his pants and place (sic) the

same in the pile of woods (sic). These unusual incident (sic) was

witnessed by the security guard because he was alone. Being

suspicious, the guard could have followed him and look (sic) at

what he put in the pile of woods (sic) but he was not able to do so

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as he was talking with an office secretary who instructed him to put

off the switch of the water pump. That on the same time and date,

Bonnie Alvarez, a Delivery Checker was at the toilet and actually

saw Edgar Gomez put in the pile of woods (sic) a ballast. That he

immediately reported this matter to Mr. Tan Chi Thian Jr. the

Production Supervisor Manager and he was instructed to get the

said ballast and bring the same to the office. Immediately Edgar

Gomez was called to the office and was asked to explain why he

took the said ballast. When he replied that he does (sic) not know

anything about the said ballast, Mr. Tan asked him to wait for a

while and asked one of the office secretary (sic) to prepare a

memorandum for Edgar Gomez to answer. That complainant

refused to acknowledge receipt of the memorandum and asked Mr.

Tan if it would be possible to call Mr. Arsenio Campos, Union Vice-

President and Oscar Raymundo another Union Officer. When the

two Union Officers were appraised of the incident, they talked with

the complainant and later told Mr. Tan that Edgar Gomez could not

accept the said memorandum. At this juncture, Mr. Tan told them

that he would just refer the matter to the police authority for proper

disposition. When the two Union Officers heard this, they requested

Mr. Tan that they be allowed to call up Mr. Reynaldo Capa,

President of the KAMPIL, the Federation wherein the local union

was affiliated. Mr. Capa of the KAMPIL requested Mr. Tan not to

take the matter to the police and he will just instruct Edgar Gomez

to receive the memorandum and they will just submit the

corresponding explanation. Complainant submitted his explanation

on June 25, 1984, vehemently denying the imputed charge against

him. After a perusal of the incident, the management deemed it

proper to place complainant Edgar Gomez under preventive

suspension pending the filing of the corresponding criminal charge

against him. That the criminal charge was not immediately filed

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because of the request of the President of the KAMPIL. In the two

grievance meetings between the Union and Management, this case

is (sic) always included in the agenda. In the meeting/conference at

the National Capital Region in the office of Conciliator Apron

Mangabat, this matter was also taken up but did not reach any

point of settlement. Finally, on July 19, 1984, the company deemed

it proper to report the matter to the police station. [Labor Arbiter

Decision, pp. 1-3; Rollo, pp. 17-19].

GOMEZ, on the other hand, claimed that the theft charge was a "frame up" as

shown by the resolution of the investigating fiscal dated 31 August 1984,

dismissing the criminal complaint filed by STARLITE, as it failed to presentthe quantum of proof to establish aprima facie case against GOMEZ. The

resolution is attached as Annex "A" of GOMEZ's position paper.

GOMEZ's version of the incident leading to his dismissal as culled from his reply

to the memorandum given to him the day of the incident, attached as Annex "1"

of his position paper, is as follows:

At 12:05 p.m. he went out to buy viand as instructed by a certain Nellie. Hearrived five minutes later and soon after, took his own lunch. At around 12:30

p.m. he went out of the compound to buy candy and three minutes later, he went

with Rando to the parking area to rest and chat. At around 12:45 p.m., a certain

Elmer joined them and they conversed while waiting for the company bell to ring

[Record p. 15].

GOMEZ denied the accusation against him arguing that if he was indeed seen

attempting to take a ballast, why didn't the security guard or Alvarez apprehend

him immediately. He admitted going to Rando Tamondong's department at

around 11:55 a.m. to use the compressor to clean himself of sawdust, but

claimed that he stayed there only for a while and then went back to his post,

without taking anything.

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This version of GOMEZ was corroborated by Rando Tamondong who, in a

statement submitted to the investigating fiscal, attached as Annex "3" of

GOMEZ's position paper, said that he was not aware of any missing ballast in his

department and that he had no knowledge of whether GOMEZ took anything

from his department. Arsenio Biong also executed an affidavit stating that he saw

Bonifacio Alvarez, Assistant Production Manager, personally bring out one

canopy containing one ballast from the painter's room and that he was surprised

to learn that GOMEZ was accused of stealing the ballast that Mr. Alverez had

taken [Annex "4", Record, p. 18].

STARLITE filed a supplemental position paper disputing the resolution of the

investigating fiscal, contending that it never received any subpoena or summonsnor was there any hearing called for or conducted regarding the case before the

investigating fiscal. Petitioner also attached the recanting affidavits of Rando

Tamondong and Arsenio Biong, executed about three months after they made

their previous statements [Record, pp. 32-34].

The Labor Arbiter then rendered his decision dated 15 January 1985, dismissing

the complaint for lack of merit, finding that, "except for his flat denial that he did

not take the ballast, private respondent GOMEZ failed to present an iota of

evidence to prove his innocence" [Rollo, p. 20].

Private respondent GOMEZ appealed the decision to public respondent NLRC

which, on 18 February 1987, reversed the ruling of the Labor Arbiter, holding that

the facts on record did not support the Labor Arbiter's conclusion. In its decision

the NLRC stated thus:

We see no reason why the Labor Arbiter should disregard the

findings of the City Fiscal as they are entitled to great weight, and

We quote:

Tan Chi Thian Jr., Production Manager of the Starlite Plastics and

Industrial Corporation, avers that on June 22, 1984, he received a

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report that at about 12:40 p.m. of the same date, respondent Edgar

Gomez, a factory helper in the said firm for about three years, was

seen inserting an OSRAM ballast valued at P80.00 into a pile of

wood near the gate of the said firm. A memorandum was later sent

to said respondent to shed light on the matter.

Respondent Gomez countered that the charged of Attempted

Qualified Theft against him was a mere fabrication intended to

justify his dismissal from the said company because of his

participation in the strike against the company by their union of

which he was a member of the board of directors.

After carefully evaluating the evidence on record, the undersigned

finds the explanation and/or defenses interposed by respondent

Gomez to be meritorious particularly on the following points:

1. the statement of Rando Tamondong that he was not aware of

any missing ballast from his department and that he did not know

whether respondent Gomez took anything from his department.

2. the fact that he was not immediately placed under custody

considering that he was actually allegedly seen in the act of

committing the crime.

3. the statement of Arsenio Biong that he saw Bonifacio Alvarez,

Assistant Production Manager of the firm, bringing out by himself

one (1) canopy containing one ballast from the painter's room. Mr.

Alvarez allegedly saw from the window of a comfort room where

respondent Gomez was inserting the missing ballast into the pile of

wood.

The Labor arbiter therefore erred in finding that "complainant failed

to present an iota of evidence to prove his innocence" as there

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were persons who testified in his favor and whose statements are

now part of the record. Thus, complainant presented the following

arguments for the Labor Arbiter's perusal:

a. Counter-affidavit of Mr. Edgar Gomez showing that complainant

did not commit the offense of Attempted qualified theft as

corroborated by Mr. Rando Tamondong and Mr. Arsenio Biong.

b. In the signed statement of Mr. Tamondong (Annex B-3) he

exonerated complainant thus:

Tungkol sa tinatanong ninyo sa nawawalang ballast sa aking

departamento ay wala po akong nalalaman at tungkol naman sa

tao sa aking departamento ay dadalawa lang po kami, ako at si Mr.

Elapes may taong pumunta roon si Mr. Gomez pero wala akong

alam na kinuha niya.

c. In the affidavit executed by Mr. Biong, (Annex B-4) he has this to

say:

... That sometime on June 22, 1984 my co-worker Mr. Edgar

Gomez at around 11:45 to 12:00 noon, came to our place at the

painters room to purposely cleanse himself of sawdust.

That immediately right after, I saw him went (sic) out of the room

without bringing everything (sic) from our room;

That, however, when Mr. Gomez was already out of our sight, Mr.

Bonnie Alvarez went inside and asked me what the former did

inside the room; that when told that Mr. Gomez cleaned himself of

sawdust in his body, Mr. Alvarez went out bringing along with him

the canopy containing the ballast;

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That I was surprised to hear after Mr. Gomez was already accused

of stealing the ballast which Mr. Alvarez had taken personally from

the painter's room.

The above statement was never denied by respondent including

Mr. Bonnie Alvarez, himself.

WHEREFORE, the appealed Decision should be as it is hereby

REVERSED. Respondent is hereby ordered to immediately

reinstate the complainant to his former position without loss of

seniority rights and benefits and with full backwages from the time

he was dismissed until actually reinstated.

The claim for moral damages is hereby denied for being

unsupported by evidence.

SO ORDERED.

[NLRC Decision, pp. 2-5; Rollo, pp. 12-15.]

The NLRC denied STARLITE's motion for reconsideration hence, the instantpetition for certiorari was filed on 30 May 1987, with a prayer for the issuance of

a writ of preliminary injunction or a temporary restraining order.

The Court issued a temporary restraining order on 10 June 1987 enjoining the

NLRC from enforcing its decision and the petition was given due course on 4

November 1987.

Petitioner mainly contends that it was justified in dismissing GOMEZ since it hadlost its trust and confidence in him for his act of attempting to steal the ballast

and public respondent NLRC therefore committed grave abuse of discretion

amounting to lack of jurisdiction when it ordered the reinstatement of GOMEZ

with full backwages.

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Petitioner argues that even if the fiscal dismissed the charges against GOMEZ,

still it has reasonable ground to believe that GOMEZ was responsible for the theft

of the ballast and that such act of dishonesty justifies his dismissal on the ground

of loss of confidence.

The Court finds petitioner's contentions unmeritorious.

At the outset, the Court finds it necessary to emphasize that contrary to the tenor

of the Labor Arbiter's decision, a dismissed employee is not required to prove his

innocence of the charges levelled against him by his employer. The Court has

laid down the rule that in termination cases, the burden of proving the just cause

of dismissing an employee rests on the employer and his failure to do so would

result in a finding that the dismissal is unjustified [Polymedic General Hospital v.

NLRC, G.R. No. 64190, January 31, 1985, 134 SCRA 420; Egyptair v. NLRC,

G.R. No. 63185, February 27, 1987, 148 SCRA 125; Asphalt and Cement

Pavers, Inc. v. Leogardo, G.R. No. 74563, June 20, 1988].

There is no dispute that loss of confidence, when adequately proven, constitutes

a valid ground for dismissing an employee [Manila Midtown Commercial

Corporation v. Nuwhrain G.R. No. L-57268, March 25, 1988, 159 SCRA 212] andproof beyond reasonable doubt is not required to terminate him on this charge

[Gatmaitan v. MRR, G.R. No. L-19892, September 25, 1967, 21 SCRA 191]. It is

sufficient that there is some basis for such loss of confidence [Galsim v. PNB,

G.R. No. L-23921, August 29, 1969, 29 SCRA 293; Central Textile Mills v. NLRC,

G.R. No. 50150, May 3, 1979, 90 SCRA 9] and that the employer has reasonable

ground to believe or entertain the moral conviction that the employee concerned

is responsible for the misconduct and that the nature of his participation therein

would render him absolutely unworthy of the trust and confidence demanded of

his position [Nevans v. CIR, G.R. No. L-21510, June 29, 1968, 23 SCRA 1321].

The doctrine goes on further to include the basic rule that the conviction of an

employee in a criminal case is not indispensable to warrant his dismissal by his

employer and that the fact that a criminal complaint against the employee has

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been dropped by the city fiscal is not binding and conclusive upon a labor tribunal

[Sea Land Service Inc. v. NLRC, G.R. No. 68212, May 24, 1985, 136 SCRA

544].

The Court, however, has time and again stressed that the right of an employer to

dismiss employees on the ground that it has lost its trust and confidence in him

must not be exercised arbitrarily and without just cause; that although the

dropping of a criminal prosecution for an employee's alleged misconduct does

not bar his dismissal and proof beyond reasonable doubt is not necessary to

justify the same, still the basis thereof must be clearly and convincingly

established [Acda v. Minister of Labor, G.R. No. 51607, December 15, 1982, 119

SCRA 326; Philippine Long Distance Telephone Co. v. NLRC, G.R. No. 58004,May 30, 1983, 122 SCRA 601].

Thus, the Court in General Bank and Trust Co. v. CA [G.R. No. L-42724, April 9,

1985, 135 SCRA 569] laid down the following guidelines in the applicability of the

doctrine of loss of confidence, to wit:

... However, loss of confidence should not be simulated. It should

not be used as a subterfuge for causes which are improper, illegalor unjustified. Loss of confidence may not be arbitrarily asserted in

the face of overwhelming evidence to the contrary. It must be

genuine, not a mere afterthought to justify earlier action taken in

bad faith. [General Bank,supra, at p. 578 cited in D.M. Consunji,

Inc. v. NLRC, G.R. No. 71459, July 30, 1986, 143 SCRA 204, 211].

Applying the foregoing legal precepts to the pertinent facts, the Court finds that

there was utter failure here to establish or substantiate the theft charge against

GOMEZ. The public respondent NLRC found, amply supported by the record,

that contrary to the Labor Arbiter's findings that GOMEZ "failed to present an iota

of evidence to prove his innocence," GOMEZ indeed presented exculpatory

evidence consisting of the statements of his co-employees Rando Tamondong

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and Arsenio Biong, the former attesting that he was not aware of any missing

ballast from his department and the latter claiming that it was in fact Bonifacio

Alvarez who brought out a canopy containing a ballast, which GOMEZ was

accused of stealing. Although STARLITE subsequently submitted the recanting

affidavits of said witnesses, said recanting affidavits did not inspire belief and the

NLRC disregarded the same. The NLRC also found that the findings of the fiscal

exonerating GOMEZ from the theft charge was entitled to great weight as these

findings reveal at once that the theft charge which is the basis for the dismissal of

GOMEZ was not clearly and convincingly established by petitioner.

Moreover, the Court is guided by the well-known principle that findings of facts of

quasi-judicial agencies, like the NLRC, are generally accorded great respect andwill not be disturbed absent a showing that the findings are unsubstantiated by

evidence [St. Luke's Hospital v. NLRC, G.R. Nos. 54068 & 54142, August 30,

1982, 116 SCRA 240; Manila Mandarin Employees Union v. NLRC, G.R. No.

76989, September 29, 1987, 154 SCRA 368]. The NLRC's findings having

support in the statements of GOMEZ and his witnesses [Record, pp. 11-20,] no

cogent reasons exist for the Court to digress from the settled rule.

Petitioner next contends that GOMEZ submitted the alleged statements of his

witnesses when the case was already submitted to the investigating fiscal for

resolution without furnishing a copy to petitioner. Petitioner thus was not able to

rebut the same, and that in any case, these alleged witnesses cannot be

expected to tell the truth because they were the close friends of GOMEZ [Rollo,

p. 7].

Petitioner's argument instead of buttressing its claim dooms it. Granting that

petitioner was not furnished a copy of the affidavits of GOMEZ's witnesses during

the proceedings before the investigating fiscal, still, as aforestated, the same

affidavits were attached with the fiscal's resolution to GOMEZ's position paper,

and STARLITE had the opportunity to assail the same, as it in fact did in its

supplemental position paper, attaching the recanting affidavits of GOMEZ's own

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witnesses. STARLITE's allegation that it had no opportunity to rebut said

affidavits is thus unfounded.

Consequently, the theft charge not having been established, the dismissal of

GOMEZ on the ground of loss of trust and confidence cannot be sustained.

In view of the finding that GOMEZ was dismissed illegaly, STARLITE is obligated

to reinstate GOMEZ to his former position or one reasonably equivalent thereto

without loss of seniority rights, and to pay backwages for three years, without

qualification or deduction [Mercury Drug v. CIR, G.R. No. L-23357, April 30,

1974, 56 SCRA 694; PAL, Inc. v. NLRC, G.R. No. 64809, November 29, 1983,

126 SCRA 223; Lepanto Consolidated Mining Co. v. Olegario, G.R. No. 77437,

June 23, 1988]. In the event such reinstatement is no longer feasible, or if

GOMEZ decides not to be reinstated, STARLITE shall pay him separation pay in

lieu of reinstatement such separation pay to be computed according to the

formula used in the cases of: Santos v. National Labor Relations

Commission,G.R. No. 76721, September 21, 1987, 154 SCRA 116; Soriano v.

National Labor Relations Commission, G.R. No. 75510, October 27, 1987, 155

SCRA 124; and, Manila Midtown Commercial Corporation v. Nuwhrain, G.R. No.

L-57268, March 25, 1988, 159 SCRA 212.

WHEREFORE, the petition for certiorari is DISMISSED. The Decision of public

respondent NLRC is hereby AFFIRMED, subject to the modification that (1)

petitioner shall pay private respondent GOMEZ three (3) years backwages

without qualification and deduction and (2) STARLITE shall reinstate GOMEZ to

his former position or one reasonably equivalent thereto or if such reinstatement

is no longer feasible or should GOMEZ not accept reinstatement, STARLITE

shall pay him separation pay to be computed as above indicated. The Temporary

Restraining Order issued on 10 June 1987 is hereby LIFTED.

SO ORDERED.

Fernan C.J., Gutierrez, Jr., and Bidin, JJ., concur.

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Feliciano, J., is on leave.

SECOND DIVISION

[G.R. No. 120466. May 17, 1999]

COCA COLA BOTTLERS PHILS., INC.,petitioner,vs. NATIONAL LABOR

RELATIONS COMMISSION and RAMON B.

CANONICATO, respondents.

D E C I S I O N

BELLOSILLO, J.:

This petition forcertiorariunder Rule 65 of the Revised Rules of Court

assails the 3 January 1995 decision[1]

of the National Labor RelationsCommission (NLRC) holding that private respondent Ramon B. Canonicato is a

regular employee of petitioner Coca Cola Bottlers Phils. Inc. (COCA COLA)

entitled to reinstatement and back wages. The NLRC reversed the decision of

the Labor Arbiter of 28 April 1994 [2] which declared that no employer-employee

relationship existed between COCA COLA and Canonicato thereby foreclosing

entitlement to reinstatement and back wages.

On 7 April 1986 COCA COLA entered into a contract of janitorial serviceswith Bacolod Janitorial Services (BJS) stipulating [3]among others -

That the First Party (COCA COLA) desires to engage the services of the Second

Party (BJS), as an Independent Contractor, to perform and provide for the

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maintenance, sanitation and cleaning services for the areas hereinbelow

mentioned, all located within the aforesaid building of the First Party x x x x

1. The scope of work of the Second Party includes all floors, walls, doors, vertical

and horizontal areas, ceiling, all windows, glass surfaces, partitions, furniture,

fixtures and other interiors within the aforestated covered areas.

2. Except holidays which are rest days, the Second Party will undertake daily the

following: 1) Sweeping, damp-mopping, spot scrubbing and polishing of floors;

2) Cleaning, sanitizing and disinfecting agents to be used on commodes, urinals

and washbasins, water spots on chrome and other fixtures to be checked; 3)

Cleaning of glass surfaces, windows and glass partitions that require daily

attention; 4) Cleaning and dusting of horizontal and vertical surfaces; 5) Cleaning

of fixtures, counters, panels and sills; 6) Clean, pick-up cigarette butts from

sandburns and ashtrays and trash receptacles; 7) Trash and rubbish disposal

and burning.

In addition, the Second Party will also do the following once a week, to wit: 1)

Cleaning, waxing and polishing of lobbies and offices; 2) Washing of windows,

glasses that require cleaning; 3) Thorough disinfecting and cleaning of toilets andwashrooms.

3. The Second Party shall supply the necessary utensils, equipment and

supervision, and it shall only employ the services of fifteen (15) honest, reliable,

carefully screened, cooperative and trained personnel, who are in good faith, in

the performance of its herein undertaking x x x x

4. The Second Party hereby guarantees against unsatisfactory

workmanship. Minor repair of comfort rooms are free of charge provided the

First Party will supply the necessary materials for such repairs at its expense. As

may be necessary, the Second Party shall also report on such part or areas of

the premises covered by this contract which may require repairs from time to

time x x x (italics supplied).

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Every year thereafter a service contract was entered into between the parties

under similar terms and conditions until about May 1994. [4]

On 26 October 1989 COCA COLA hired private respondent Ramon

Canonicato as a casual employee and assigned him to the bottling crew as asubstitute for absent employees. In April 1990 COCA COLA terminated

Canonicato's casual employment. Later that year COCA COLA availed of

Canonicato's services, this time as a painter in contractual projects which lasted

from fifteen (15) to thirty (30) days. [5]

On 1 April 1991 Canonicato was hired as a janitor by BJS [6] which assigned

him to COCA COLA considering his familiarity with its premises. On 5 and 7

March 1992 Canonicato started painting the facilities of COCA COLA andcontinued doing so several months thereafter or so for a few days every time

until 6 to 25 June 1993. [7]

Goaded by information that COCA COLA employed previous BJS employees

who filed a complaint against the company for regularization pursuant to a

compromise agreement,[8] Canonicato submitted a similar complaint against

COCA COLA to the Labor Arbiter on 8 June 1993. [9] The complaint was

docketed as RAB Case No. 06-06-10337-93.

Without notifying BJS, Canonicato no longer reported to his COCA COLA

assignment starting 29 June 1993. On 15 July 1993 he sent his sister Rowena to

collect his salary from BJS.[10] BJS released his salary but advised Rowena to tell

Canonicato to report for work. Claiming that he was barred from entering the

premises of COCA COLA on either 14 or 15 July 1993, Canonicato met with the

proprietress of BJS, Gloria Lacson, who offered him assignments in other firms

which he however refused.

[11]

On 23 July 1993 Canonicato amended his complaint against COCA COLA by

citing instead as grounds therefor illegal dismissal and underpayment of

wages. He included BJS therein as a co-respondent.[12] On 28 September 1993

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BJS sent him a letter advising him to report for work within three (3) days from

receipt, otherwise, he would be considered to have abandoned his job. [13]

On 28 April 1994 the Labor Arbiter ruled that: (a) there was no employer-

employee relationship between COCA COLA and Ramon Canonicato becauseBJS was Canonicato's real employer; (b) BJS was a legitimate job contractor,

hence, any liability of COCA COLA as to Canonicato's salary or wage

differentials was solidary with BJS in accordance with pars. 1 and 2 of Art. 106,

Labor Code; (c) COCA COLA and BJS must jointly and severally pay Canonicato

his wage differentials amounting to P2,776.80 and his 13th month salary

of P1,068.00, including ten (10%) percent attorney's fees in the sum

of P384.48. The Labor Arbiter also ordered that all other claims by Canonicato

against COCA COLA be dismissed for lack of employer-employee relationship;

that the complaint for illegal dismissal as well as all the other claims be likewise

dismissed for lack of merit; and that COCA COLA and BJS deposit P4,429.28

with the Department of Labor Regional Arbitration Branch Office within ten (10)

days from receipt of the decision. [14]

The NLRC rejected on appeal the decision of the Labor Arbiter on the ground

that the janitorial services of Canonicato were found to be necessary or desirable

in the usual business or trade of COCA COLA. The NLRC accepted

Canonicato's proposition that his work with the BJS was the same as what he did

while still a casual employee of COCA COLA. In so holding the NLRC applied

Art. 280 of the Labor Code and declared that Canonicato was a regular

employee of COCA COLA and entitled to reinstatement and payment

of P18,105.10 in back wages. [15]

On 26 May 1995 the NLRC denied COCA COLA's motion for reconsideration

for lack of merit.[16] Hence, this petition, assigning as errors: (a) NLRC's finding

that janitorial services were necessary and desirable in COCA COLA's trade and

business; (b) NLRC's application of Art. 280 of the Labor Code in resolving the

issue of whether an employment relationship existed between the parties; (c)

NLRC's ruling that there was an employer-employee relationship between

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petitioner and Canonicato despite its virtual affirmance that BJS was a legitimate

job contractor; (d) NLRC's declaration that Canonicato was a regular employee of

petitioner although he had rendered the company only five (5) months of casual

employment; and, (e) NLRC's order directing the reinstatement of Canonicato

and the payment to him of six (6) months back wages. [17]

We find good cause to sustain petitioner. Findings of fact of administrative

offices are generally accorded respect by us and no longer reviewed for the

reason that such factual findings are considered to be within their field of

expertise. Exception however is made, as in this case, when the NLRC and the

Labor Arbiter made contradictory findings.

We perceive at the outset the disposition of the NLRC that janitorial servicesare necessary and desirable to the trade or business of petitioner COCA

COLA. But this is inconsistent with our pronouncement inKimberly Independent

Labor Union v. Drilon[18]where the Court took judicial notice of the practice

adopted in several government and private institutions and industries of hiring

janitorial services on an "independent contractor basis." In this respect, although

janitorial services may be considered directly related to the principal business of

an employer, as with every business, we deemed them unnecessary in the

conduct of the employer's principal business. [19]

This judicial notice, of course, rests on the assumption that the independent

contractor is a legitimate job contractor so that there can be no doubt as to the

existence of an employer-employee relationship between contractor and the

worker. In this situation, the only pertinent question that may arise will no longer

deal with whether there exists an employment bond but whether the employee

may be considered regular or casual as to deserve the application of Art. 280 of

the Labor Code.

It is an altogether different matter when the very existence of an employment

relationship is in question. This was the issue generated by Canonicato's

application for regularization of his employment with COCA COLA and the

subsequent denial by the latter of an employer-employee relationship with the

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applicant. It was error therefore for the NLRC to apply Art. 280 of the Labor

Code in determining the existence of an employment relationship of the parties

herein, especially in light of our explicit holding in Singer Sewing Machine

Company v. Drilon[20]that -

x x x x [t]he definition that regular employees are those who perform activities

which are desirable and necessary for the business of the employer is not

determinative in this case. Any agreement may provide that one party shall

render services for and in behalf of another for a consideration (no matter how

necessary for the latter's business) even without being hired as an

employee. This is precisely true in the case of an independent contractorship as

well as in an agency agreement. The Court agrees with the petitioner's argumentthat Article 280 is not the yardstick for determining the existence of an

employment relationship because it merely distinguishes between two kinds of

employees, i.e., regular employees and casual employees, for purposes of

determining the right of an employee to certain benefits, to join or form a union,

or to security of tenure. Article 280 does not apply where the existence of an

employment relationship is in dispute.

In determining the existence of an employer-employee relationship it is

necessary to determine whether the following factors are present: (a) the

selection and engagement of the employee; (b) the payment of wages; (c) the

power to dismiss; and, (d) the power to control the employee's conduct.

[21] Notably, these are all found in the relationship between BJS and Canonicato

and not between Canonicato and petitioner COCA COLA. As the Solicitor-

General manifested[22]-

In the instant case, the selection and engagement of the janitors for petitioner

were done by BJS. The application form and letter submitted by private

respondent (Canonicato) to BJS show that he acknowledged the fact that it was

BJS who did the hiring and not petitioner x x x x

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BJS paid the wages of private respondent, as evidenced by the fact that on July

15, 1993, private respondent sent his sister to BJS with a note authorizing her to

receive his pay.

Power of dismissal is also exercised by BJS and not petitioner. BJS is the one

that assigns the janitors to its clients and transfers them when it sees fit. Since

BJS is the one who engages their services, then it only follows that it also has the

power to dismiss them when justified under the circumstances.

Lastly, BJS has the power to control the conduct of the janitors. The supervisors

of petitioner, being interested in the result of the work of the janitors, also gives

suggestions as to the performance of the janitors, but this does not mean that

BJS has no control over them. The interest of petitioner is only with respect to

the result of their work. On the other hand, BJS oversees the totality of their

performance.

The power of the employer to control the work of the employee is said to be

the most the most significant determinant. Canonicato disputed this power of

BJS over him by asserting that his employment with COCA COLA was not

interrupted by his application with BJS since his duties before and after heapplied for regularization were the same, involving as they did, working in the

maintenance department and doing painting tasks within its facilities. Canonicato

cited the Labor Utilization Reports of COCA COLA showing his painting

assignments. These reports, however, are not expressive of the true nature of

the relationship between Canonicato and COCA COLA; neither do they detract

from the fact that BJS exercised real authority over Canonicato as its employee.

Moreover, a closer scrutiny of the reports reveals that the painting jobs were

performed by Canonicato sporadically, either in a few days within a month and

only for a few months in a year.[23]This infrequency or irregularity of assignments

countervails Canonicatos submission that he was assigned specifically to

undertake the task of painting the whole year round. If anything, it hews closely

to the assertion of BJS that it assigned Canonicato to these jobs to maintain and

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sanitize the premises of petitioner COCA COLA pursuant to its contract of

services with the company.[24]

It is clear from these established circumstances that NLRC should have

recognized BJS as the employer of Canonicato and not COCA COLA. This isdemanded by the fact that it did not disturb, and therefore it upheld, the finding of

the Labor Arbiter that BJS was truly a legitimate job-contractor and could by itself

hire its own employees. The Commission could not have reached any other

legitimate conclusion considering that BJS satisfied all the requirements of a job-

contractor under the law, namely, (a) the ability to carry on an independent

business and undertake the contract work on its own account under its own

responsibility according to its manner and method, free from the control and

direction of its principal or client in all matters connected with the performance of

the work except as to the results thereof; and, (b) the substantial capital or

investment in the form of tools, equipment, machinery, work premises, and other

materials which are necessary in the conduct of its business. [25]

It is to be noted that COCA COLA is not the only client of BJS which has its

roster of clients like San Miguel Corporation, Distileria Bago Incorporated,

University of Negros Occidental-Recolletos, University of St. La Salle, Riverside

College, College Assurance Plan Phil., Inc., and Negros Consolidated Farmers

Association, Inc.[26] This is proof enough that BJS has the capability to carry on its

business of janitorial services with big establishments aside from petitioner and

has sufficient capital or materials necessary therefor. [27] All told, there being no

employer-employee relationship between Canonicato and COCA COLA, the

latter cannot be validly ordered to reinstate the former and pay him back wages.

WHEREFORE, the petition is GRANTED. The NLRC decision of 3 January

1995 declaring Ramon B. Canonicato a regular employee of petitioner Coca Cola

Bottlers Phils., Inc., entitled to reinstatement and back wages is REVERSED and

SET ASIDE. The decision of the Labor Arbiter of 28 April 1994 finding no

employer-employee relationship between petitioner and private respondent but

directing petitioner Coca Cola Bottlers Phils., Inc., instead and Bacolod Janitorial

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Services to pay jointly and severally Ramon B. Canonicato P2,776.80 as wage

differentials, P1,068.00 as 13th month pay and P384.48 as attorney's fees, is

REINSTATED.

SO ORDERED.

Republic of the Philippines

SUPREME COURT

Manila

THIRD DIVISION

G.R. No. 82580 April 25, 1989

COCA-COLA BOTTLERS PHILIPPINES INCORPORATED, petitioner,

vs.

NATIONAL LABOR RELATIONS COMMISSION and FERNANDO

VEGA, respondents.

G.R. No. 84075 April 25, 1989

FERNANDO VEGA, petitioner,

vs.

NATIONAL LABOR RELATIONS COMMISSION THIRD DIVISION, MANILA

and COCA-COLA BOTTLERS, PHILIPPINES, INC., respondents.

GUTIERREZ JR., J.:

Before us are two separate petitions docketed as G.R. No. 82580 and G.R. No.

84075 both assailing the decision of the National Labor Relations Commission in

RAB Case No. Vl0038-85.

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Fernando Vega, the petitioner in G.R. No. 84075, began his employment with

Coca-Cola Bottlers Philippines, Inc., the petitioner in G.R. No. 82580, on

November 1, 1976 as Sprite Salesman covering the Iloilo City routes. He was

subsequently promoted to regular salesman in 1978. In the same year, however,

on charges of issuing temporary credit sales receipts and denying dealer's

accounts, he was demoted to relief salesman He was also suspended for one (1)

month and six (6) days and grounded for six (6) months.

In 1981, he was again promoted to regular salesman. He held the same position

until June 26,1984 when he was terminated from employment on the charge of

falsification of route sales report.

On July 16,1984, he filed with the then Ministry of Labor and Employment a

complaint for unfair labor practice, illegal dismissal, unpaid wages and separation

pay and for damages and attorney's fees. He alleged that he was dismissed

without lawful cause because the falsification imputed to him did not result from

deliberate and malicious intent but from honest mistake and oversight. He

averred that on March 10, 1984, on the night he was about to turn over to the

company the proceeds of his sales, he noticed a discrepancy of about P100.00 in

his liquidation report; that after he checked his papers he found that the Incoming

Load Report issued by the gate guard declared only five (5) cases of empty

bottles while the duplicate copy issued by the stock clerk listed fifteen (15) cases

of empties; that as he was about to correct the report, an unscheduled brown-out

occurred; that he immediately submitted the uncorrected report to the pre-audit

personnel with the intention to settle the error the following day. He further

related that after he was informed by the cashier of his shortage, he immediately

paid the amount of Pl00.00; that on May 12, 1984, he was grounded, and, that he

submitted to an investigation hoping that his mistake will not be taken against

him but he received a letter terminal his services on June 26,1984. He pointed

out that it is unlikely that he would bargain his seven years of dedicated service

to the Company for a measly sum of P100.00, and stated that the Company was

bent on terminating his services because he was an active union officer.

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To rebut Vega's allegations of honest mistake and oversight, however, Coca-

Cola Bottlers Philippines, Inc. outlined the procedure for the liquidation of sales. It

contended that because of the sensitive nature of a sales agent's job, a system

of liquidation was required which consists of daily checks on the goods and

accomplishment of several documents which are subject to regular audit. It

narrated that on March 10, 1984, upon entering the company's premises, Vega

had the contents of his track examined by the guard; that he prepared three (3)

copies of the Incoming Load Report (ILR), one copy for him, one copy for the

guard, and one for the files in a box; that the copy in the files listed five (5) cases

of empty bottles; that thereafter, when Vega entered the plant, the plant checker

examined his cargo and prepared two copies of checker slips, one copy for the

stock clerk and one for Vega; that once inside the plant, Vega prepared his

Route Sales Report (RSR) and turned over to the cashier and finance officer the

RSR, ILR and checker slips together with the cash collection; that upon audit, it

was discovered that while the ILR and checker slips listed only five (5) cases of

empty bottles, the RSR listed fifteen (15) cases; that it was also learned that

Vega's copy of the ILR and checker slips were altered and also listed fifteen (15)

cases; that due to the discrepancy the company was defrauded in the amount of

P100.00 more or less.

Coca-Cola Bottlers Philippines, Inc. alleged that it cannot condone Vega's acts

because his job exposes him to financial transactions everyday. It further averred

that Vega's acts showed willful and malicious intent to defraud the company and

rendered him unworthy of its trust and confidence.

On July 24,1986, the Labor Arbiter found in favor of Vega. He ruled that any error

in the entries in the sales report was made unintentionally and may probably be

due to the sudden brown-out alleged by Vega. He opined that the penalty of

dismissal was too severe considering Vega's seven years of dedicated service to

the company. Thus, he ordered the company to reinstate Vega to his former

position and to pay him full and complete backwages and other benefits at the

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rate of P2,280.00 a month until reinstated, 10% attorney's fees and the amount of

P5,000.00 as transportation and other incidental expenses.

On appeal to the National Labor Relations Commission, the decision was

modified. The NLRC was not convinced that the falsification was unintentional. It

further observed that under company rules, the infraction calls for the penalty of

dismissal. It, however, noted Vega's seven years of service to the company and

accordingly ordered his reinstatement with only three (3) months backwages.

Both parties appealed from the decision. Coca-Cola Bottlers Philippines, Inc. filed

its petition for review docketed as G.R. No. 82580 on April 6,1988 while Vega

filed the present petition for review on certiorari docketed as G.R. No. 84075 on

April 21, 1988.

In a resolution dated October 17,1988, this Court ordered the two cases

consolidated considering that the subject matter and the issues involved in the

two cases emanated from the same decision of the NLRC. In accordance with

the Manifestation filed by the Office of the Solicitor General for the respondent

NLRC, the Comment filled in G.R. No. 82580 is considered as the Comment

required by this Court in G.R. No. 84075. We treat the Comments as Answersand decide these petitions on their merits.

Coca-Cola Bottlers Philippines, Inc. alleges that the NLRC erred in ordering

Vega's reinstatement not withstanding its finding that falsification was clearly

committed by Vega. It contends that length of service does not warrant an

employee's reinstatement where there is a clear showing that he committed acts

constituting just causes of termination.

On the other hand, Vega alleges that the NLRC committed grave abuse of

discretion in considering facts not alleged in the labor arbiters decision. He

further states that the NLRC erred in denying him full backwages in spite of the

fact that the labor arbiter clearly found that Coca-Cola Bottlers Philippines, Inc.

committed an unfair labor practice.

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We rule in favor of Coca-Cola Bottlers Philippines, Inc. The NLRC's order of

reinstatement based on the sole ground of length of service does not find support

in either law or jurisprudence.

When adequately proven, the dual grounds of breach of trust and loss of

confidence constitute valid and ample bases to warrant termination of an errant

employee. (Manila Midtown Commercial Corporation v. Nuwhrain (Ramada

Chapter), 159 SCRA 212 [1988]). The employer's obligation to give his workers

just compensation and treatment carries with it the corollary right to expect from

the workers adequate work, diligence and good conduct. (Firestone Tire and

Rubber Co. of the Phils. v. Lariosa, 148 SCRA 187 [1987]). In the last cited case,

this Court held:

Although as a rule this Court leans over backwards to help workers

and employees continue with their employment or to mitigate the

penalties imposed on them, acts of dishonesty in the handling of

company property are a different matter.

Thus under Article 283 of the Labor Code, an employer may

terminate an employment for 'serious misconduct' or for fraud orwillful breach by the employee of the trust reposed in him by by his

employer or representative.

If there is sufficient evidence that an employee has been guilty of a

breach of trust or that his employer has ample reasons to distrust

him, the labor tribunal cannot justly deny to the employer. the

authority to dismiss such an employee.

There is no question that Coca-Cola Bottlers Philippines, Inc., is correct when it

states that Vega's position as a sales agent is of such a nature as to require a

substantial amount of trust and confidence on the part of the employer. The work

of a salesman exposes him to voluminous financial transactions involving his

employer's goods. The life of the softdrinks company depends not so much on

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the bottling or production of the product since this is primarily done by automatic

machines and personnel who are easily supervised but upon mobile and far

ranging salesmen who go from store to store all over the country or region.

Salesmen are highly individualistic personnel who have to be trusted and left

essentially on their own. A high degree of confidence is reposed in them when

they are entrusted with funds or properties of their employer.

As a general rule, employers are allowed a wider latitude of discretion in

terminating the employment of managerial personnel or those who, while not of

similar rank, perform functions which by their nature require the employer's full

trust and confidence. This must be distinguished from the case ofordinaryrank-

and-file employees, whose termination on the basis of these same groundsrequires a higher proof of involvement in the events in question; mere

uncorroborated assertions and accusations by the employer will not suffice. (See

Manila Midtown Commercial Corporation v. Nuwhrain (Ramada Chapter), supra).

Thus, in the case ofSan Miguel Corp. v. National Labor Relations

Commission (142 SCRA 376, 384 [1986]), this Court held:

Private respondent represents petitioner in his dealings with the

public. When charges of theft of customer's properties and

misconduct on the job are imputed on the sales agent, and these

charges are supported with evidence, they constitute sufficient

reasons for termination of employment. Well established in our

jurisprudence is the right of an employer to dismiss an employee

whose continuance in the service is inimical to the employer's

interest. (Manila Trading and Supply, Co. v. Philippine Labor Union,

71 Phil. 124; Engineering Equipment, Inc. v. NLRC, 133 SCRA

752)

In this case, the employee's infraction was not his first offense. We note that he

was suspended and grounded for other offenses he committed in 1978. We

regret, then, that this Court is powerless to extend to him the remedy of

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reinstatement even on the ground of equity based on his length of service. As

this Court held in the case ofPiedad v. Lanao del Norte Electric Cooperative,

Inc. (153 SCRA 500, 509 [1987]):

The precedents on the issue before us are clear. Dismissal of a

dishonest employee is to the best interest not only of management

but also of labor (International Hardwood and Veneer Co. of the

Phils. v. Leogardo, Jr., 117 SCRA 967). As a measure of self-

protection against acts inimical to its interest, a company has the

right to dismiss its erring employees (Dole Phils. Inc. v. National

Labor Relations Commission, supra). An employer cannot be

compelled to continue in employment an employee guilty of actsinimical to its interest, justifying loss of confidence in him

(International Hardwood and Veneer Co., of the Philippines v.

Leogardo, Jr. supra; National Service Corporation v. Leogardo,

Jr. supra; Engineering Equipment, Inc. v. National Labor Relations

Commission, supra). The law does not impose unjust situations on

either labor or management.

Because of the difference between the findings of the Labor Arbiter and the

NLRC, we have examined this aspect of the petition carefully. We affirm the

NLRC conclusion that there was a clear falsification of commercial documents in

this case. The tampered documents in the hands of Mr. Vega and presented to

the cashier and finance officer showed fifteen cases of soft drinks bottles while

the earlier copies of the same documents in the hands of the gate guard and the

stock clerk and in the flies reflected only five cases returned to the employer.

There was no brown-out yet when the "incoming load report" was given at the

guard house and the checker slip given to the stock clerk. It cannot be reason for

the discrepancy. Besides, why should a salesman prepare basic reports in the

dark? The tampering to reflect a bigger number of returns was effected when the

salesman presented his reports for the cashier and finance officer. The allegation

that the salesman would not risk his job for such a small amount is not a defense

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because minor pilferages or thefts carried on over a long period of time through

false reports or juggling of funds and properties may, as intended by the

employee, remain unnoticed but they would destroy the company nonetheless if

unchecked or tolerated. The Labor Arbiter is wrong; the NLRC is correct insofar

as the appreciation of facts is concerned.

WHEREFORE, the assailed decision of the National Labor Relations

Commission is hereby REVERSED and SET ASIDE. The dismissal of petitioner

Fernando Vega from his employment by Coca-Cola Bottlers Philippines,

Incorporated is AFFIRMED as valid and according to law.

SO ORDERED.

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Republic of the Philippines

SUPREME COURT

Manila

THIRD DIVISION

G.R. No. L-52034 September 27, 1988

SALVADOR LACORTE, petitioner,

vs.

HON. AMADO G. INCIONG in his capacity as Deputy Minister of Labor;

HON. FRANCISCO L. ESTRELLA in his capacity as Regional Director,Ministry of Labor; and ASEAN FABRICATORS, INC., respondents.

Benito P. Fable for petitioner.

The Office of the Solicitor General for public respondent.

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Bengzon, Zarraga, Narciso, Cudala, Pecson Azcuna & Bengzon for private

respondent.

FERNAN, C.J.:

In this special civil action for certiorari and mandamus, petitioner Salvador

Lacorte seeks [1] to annul and set aside the Order dated May 19, 1978, issued

by respondent Labor Regional Director Francisco Estrella in T-IV 289-77 which

granted the application for clearance to terminate petitioner's employment filed by

private respondent Asean Fabricators, Inc., as well as the Order dated August

23, 1979, issued by the then Deputy Minister of Labor Amado Gat Inciong

affirming the aforementioned order, petitioner claiming that said orders were

issued by the public respondents with grave abuse of discretion and in violation

of his right to due process, and [2] to direct his reinstatement with payment of

backwages.

Petitioner, an employee of respondent corporation, was found by respondent

Estrella to have committed certain acts in breach of the trust and confidence of

his employer, in the questioned Order1 which reads as follows:

O R D E R

This is an application for clearance to terminate the services of

complainant filed by respondent. The record shows that

complainant was hired as a warehouseman whose duties were

among others, to receive and store the raw and junk materials used

by respondent in its business.

On January 19, 1977, complainant offered to purchase some

obsolete, defective and non-usable junk materials from respondent.

The respondent agreed and issued a cash invoice for the purchase

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of the scrap items. When complainant tried to bring out these items

he was accosted by respondent's security guard and in the course

of the investigation, it was discovered that the items sought to be

brought out by complainant weighed more than what he actually

purchased. Furthermore, it was found out that the items were not

junk since some parts were brand new and usable. As a

consequence the respondent filed a case for qualified theft against

complainant before the Provincial Fiscal of Bulacan.

The criminal complaint was however, dismissed for insufficiency of

evidence.

While we are not unmindful of the resolution by the fiscal regarding

the culpability of complainant, still we cannot put aside the fact that

he occupied a fiduciary position as a warehouseman. It is

noteworthy to note that the quantum of evidence in criminal cases

is markedly different from that in labor cases. The complainant by

his own acts show that he does not deserve the continuing trust of

respondent. We would be unduly burdening respondent if we were

to deny the application for it would be cast in a position where it has

an employee over whom it has no trust and confidence.

WHEREFORE, premises considered, the application for clearance

to terminate the employment of complainant is hereby granted.

SO ORDERED.

On appeal by petitioner, the aforementioned order was affirmed by respondent

Inciong in a one-page order, which is also questioned in this petition, on the basis

of his findings that "(A)fter a careful review of the entire record of the case, we

find no valid and compelling reason to disturb the Order appealed from it being

sufficiently supported by the evidence on record and the law applicable." 2

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Dissatisfied with the aforequoted order, petitioner took the present recourse.

As correctly presented by the counsel for petitioner3 the only issue in this case is

whether or not public respondents acted arbitrarily and/or with grave abuse of

discretion in connection with the grant of the application for clearance to

terminate the employment of petitioner filed by respondent corporation.

The thrust of petitioner's arguments is that public respondents issued the

assailed orders with grave abuse of discretion and in violation of his right to due

process, considering that the criminal complaint for qualified theft filed by

respondent corporation against petitioner based on the alleged attempted

stealing of some company property on January 22, 1977, was dismissed by the

fiscal for insufficiency of evidence; that it took private respondent several months

after the incident before seeking clearance to terminate his services during which

he was allowed to remain in his job, negating any claim of loss of confidence

arising therefrom; that the order of Estrella failed to consider the affidavits of

petitioner and a fellow employee claiming that the real motive for dismissing him

is not loss of confidence but his union activities; and, that petitioner was allegedly

not aware of the weighing and examination of the withheld boxes containing the

scrap materials conducted by respondent corporation after he was accosted by

the company guards on January 22, 1977, in violation of his right to due process.

At first impression, petitioner's arguments in support of his claim of denial of due

process appear to hold water considering the constitutional as well as statutory

commands and guarantees for the protection of the rights of labor. The records,

however, do not support his allegations; neither do the law and jurisprudence on

this matter.

A review of the records reveals that petitioner was accorded more than ample

opportunities to fully present his side of the case. After private respondent's

application for clearance to terminate petitioner's employment was filed on

October 7, 1977, the case was set for hearing in Regional Office No. IV on

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December 6, 1977 but was reset for December 13, 1977. In the hearing on the

latter date, the parties were required to submit their respective position papers.

Petitioner filed his position paper on December 21, 1977, while the private

respondent filed its own on December 29, 1977. The record further shows that

petitioner did not introduce his affidavits during the hearing and until the case

was submitted for decision. This may explain why in the order of Estrella on May

19, 1978, there was no mention of said affidavits of petitioner.

When said order was appealed, further hearings were conducted but petitioner

again did not introduce any evidence until the case on appeal was deemed

submitted for decision on January 24, 1979. It was only on January 29, 1979,

that petitioner filed the affidavits

4

claiming for the first that time the real motivefor his termination was his union activities. From the time the parties were

required to submit their respective position papers on December 21, 1977 until

respondent Estrella issued his order which was appealed and throughout the

appeal proceedings which was deemed submitted on January 24, 1979;

petitioner did not present those affidavits and did so only after more than one

year from the initial hearing. It defies explanation other than that it was a mere

afterthought why it took petitioner so much time to prepare those two affidavits

which contain nothing more than the bare allegation, obviously self-serving, that

his union activities prompted his termination. We cannot understand why he

failed to present them until the case was already on appeal. Petitioner's

imputation of omissions must therefore fail. He has not succeeded in overcoming

the presumption of regularity in the performance of respondent labor officials'

functions in issuing the orders.

As this Court has stated in similar cases the findings of facts of quasi- judicial

agencies like the NLRC, which have acquired expertise because their jurisdiction

is confined to specific matters are generally accorded not only respect but at

times even finality if such findings are supported by substantial evidence 5and

that in the exercise of their jurisdiction, "when confronted with conflicting versions

on factual matters, it is for them in the exercise of discretion to determine which

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party deserves credence on the basis of evidence received," subject only to the

requirement that their decision must be supported by substantial

evidence. 6 Accordingly, petitioner needed to show by substantial evidence that

he was indeed an active union member who is expected to get the ire of the

company, but by way of evidence on this point all that petitioner presented were

his and a fellow employee's self-serving affidavits purportedly showing that his

union activities prompted his termination, which quantum of evidence fails the

substantiality requirement test to support his claim.

Petitioner, however, contends that the dismissal by the Provincial Fiscal of the

criminal complaint for qualified theft filed against him by private respondent for

insufficiency of evidence supports his claim that he is innocent of the imputedacts of stealing and this should have prompted the respondents to dismiss the

application for clearance to terminate his employment on the basis of the imputed

acts of stealing.

We cannot subscribe to this view. The purpose of the proceedings before the

fiscal is to determine if there is sufficient evidence to warrant the prosecution and

conviction of the accused. In assessing the evidence before him, the fiscal

considers the basic rule that to successfully convict the accused the evidence

must be beyond reasonable doubt and not merely substantial. On the other hand,

to support findings and conclusion of administrative bodies only substantial

evidence is required. It does not follow that once the fiscal dismisses the

complaint for qualified theft, respondent officials should also have decided in

favor of petitioner. For one, the evidence presented before the two bodies may

not be necessarily Identical. Secondly, the appreciation of the facts and evidence

presented is an exercise of discretion on the part of administrative officials over

which one cannot impose his conclusion on the other. As we have already ruled,

"the conviction of an employee in a criminal case is not indispensable to warrant

his dismissal, and the fact that a criminal complaint against the employee has

been dropped by the fiscal is not binding and conclusive upon a labor tribunal. 7

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Further, petitioner would like to bolster his claim that the incident on January 22,

1977 was not the real cause for the move to terminate his services but his union

activities by emphasizing the fact that he was allowed to remain in his post even

after the said incident, the application for clearance having been filed only

several months later.

We are not persuaded. It is intimated by respondents that the respondent

company conducted its investigation on the alleged theft before filing the criminal

charges and the application for clearance, and only after having been convinced

of the veracity of the reported attempt to steal. That the company investigated the

incident first while allowing petitioner to stay on his job pending the investigation

is not only proper but in accord with fair process. That the investigation took timeis understandable, considering that it was not the only preoccupation of

respondent corporation.

Finally, petitioner claims that on January 22, 1977, when the company reportedly

caught petitioner attempting to spirit away some brand new and usable company

property, there was no actual weighing and examination of the boxes containing

the scrap materials. Suffice it to say that it is now too late in the day for petitioner

to raise these matters of facts in this petition. At any rate, his evidence does not

substantiate his claim.

The Court considered the records of this case as a whole, and we are convinced

that there is substantial basis for the Orders issued by respondent labor officials.

WHEREFORE, this petition is dismissed for lack of merit.

SO ORDERED.

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Republic of the Philippines

SUPREME COURT

Manila

FIRST DIVISION

G.R. No. 100969 August 14, 1992

CARLO RANARA, petitioner,

vs.

NATIONAL LABOR RELATIONS COMMISSION, ORO UNION

CONSTRUCTION SUPPLY AND/OR JIMMY TING CHANG, GENERAL

MANAGER/OWNER, respondents.

Public Attorney's Office for petitioner.

Eduardo P. Cuenca for private respondents.

CRUZ, J.:

Petitioner Carlos Ranara had been working as a driver with Oro Union

Construction Supply, one of the herein private respondents, when he was told by

Fe Leonar, secretary of the other private respondent, Jimmy Ting Chang, not to

come back the following day. Thinking that she was only joking, be reported for

work as usual on November 11, 1989, but was surprised to find some other

person handling the vehicle previously assigned to him. It was only then that

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Ranara realized that he had really been separated. When he approached Leonar

to ask why his services were being terminated, she replied crossly:

You are hard-headed. I told you last night when you turned over the

key not to report for work because Mr. Jimmy Ting Chang does not

like your services, yet you, come back.

Three days later, Ranara filed a complaint with the Department of Labor and

Employment for illegal dismissal, reinstatement with full back wages,

underpayment of wages, overtime pay, non-payment of 13th month pay, service

incentive leave, separation pay and moral damages.

The private respondents denied the charges, contending that the petitioner had

not been illegally dismissed. Chang said he was in a hospital in Manila on

November 11, 1989, and that he had not authorized Leonar, or even his mother

who was the officer-in-charge during his absence, to terminate Ranara's

employment. The truth was that it was Ranara who abandoned his work when he

stopped reporting from November 11, 1989. Chang also introduced documentary

evidence, consisting of payroll and other records, to refute the petitioner's

monetary claims.

On May 2, 1990, the Labor Arbiter held that Ranara had not been illegally

dismissed. 1 The decision stressed that at the hearing of December 28, 1989,

Chang offered to re-employ the petitioner as he was needed in the store but the

latter demurred, saying he was no longer interested. This attitude, according to

the Labor Arbiter, showed that it was the petitioner who chose to stop working for

Chang and not the latter who terminated his employment.

On the monetary claims, however, the decision ordered the respondents to pay

the complainant P375.00 as wage differentials, 13th month pay for 1989 of

P1,110.00 minus his outstanding obligation to respondents. The rest of the

claims were dismissed for lack of merit. 2

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The decision was affirmed on appeal, by the NLRC, 3 prompting the petitioner to

seek relief from this Court.

Required to comment, the Solicitor General disagreed with the NLRC on the

legality of the petitioner's dismissal. He said that the challenged decision was

based on an event subsequent to the illegal dismissal, to wit, the offer of

reinstatement, and that such offer did not validate the dismissal. He also disputed

the contention that the petitioner had voluntarily abandoned his work, saying this

was unlikely because of the difficulty of the times and the high unemployment

rate.

In view of this stance of the Solicitor General, and at his suggestion, the Court

required the NLRC to file its own comment.

The NLRC argued in its Comment that the offer to re-employ the petitioner

should not be disregarded in assessing the motives of the parties as it was a

genuine effort on the part of the private respondents to settle the controversy.

There was no reason for the petitioner's refusal to return to work after he had

been invited back to the store. Moreover, the petitioner had not filed a motion for

reconsideration of its decision and should therefore not be allowed to file hispetition forcertiorariwith this Court. The NLRC also argued that it was not

necessary to require the private respondents to submit the original copies of their

documentary evidence because their due execution and genuineness had not

been denied under oath and were therefore deemed admitted.

The Court has carefully considered the arguments of the parties and finds for the

petitioner.

We reject as a rank falsity the private respondents' claim that the petitioner had

not been illegally dismissed and in fact abandoned his work. The secretary would

not have presumed to dismiss him if she had not been authorized to do so,

considering the seriousness of this act. It is worth noting that neither Chang's

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mother, who was the officer-in-charge do his absence, nor Chang himself upon

his return, reversed her act and reinstated the petitioner.

The private respondents themselves claim they have a staff of less than ten

persons, and Chang or his mother could not have failed to notice Ranara's

absence after November 1, 1989. Yet they took no steps to rectify the secretary's

act if it was really unauthorized and, on the contrary, accepted Ranara's

replacement without question. Evidently, that person had been employed earlier,

in advance of Ranara's dismissal.

The charge of abandonment does not square with the recorded fact that three

days after Ranara's alleged dismissal, he filed a complaint with the labor

authorities. The two acts are plainly inconsistent. Neither can Ranara's rejection

of Chang's offer to reinstate him be legally regarded as an abandonment

because the petitioner had been placed in an untenable situation that left him

with no other choice. Given again the smallness of the private respondents' staff,

Ranara would have found it uncomfortable to continue working under the hostile

eyes of the employer who had been forced to reinstate him.

It was not as if Ranara were only one among many other complainants orderedreinstated in a big company, for whatever enmity the employer might harbor

against them would be diluted and less personalized, so to speak. There would

be a certain degree of anonymity, and a resultant immunity from retaliation, in the

number alone of the reinstated personnel. Moreover, it is not unlikely that there

would be a labor union in such a company to protect and assure the returning

workers against possible reprisals from the employer.

In the petitioner's case, he was only one among ten employees in a small store,

and that made a great deal of difference to him. He had reason to fear that if he

accepted the private respondents' offer, their watchful eyes would thereafter be

focused on him, to detect every small shortcoming of his as a ground for

vindictive disciplinary action. In our own view, this was a case of strained

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relations between the employer and the employee that justified Ranara's refusal

of the private respondents' offer to return him to his former employment.

It is clear that the petitioner was illegally dismissed without even the politeness of

a proper notice. Without cause and without any investigation, formal or

otherwise, Ranara was simply told that he should not report back for work the

following day. When he did so just the same, thinking she had only spoken in

jest, he found that somebody else had been employed in his place. When he

protested his replacement, he was even scolded for being "hard-headed" and not

accepting his dismissal.

The fact that his employer later made an offer to re-employ him did not cure the

vice of his earlier arbitrary dismissal. The wrong had been committed and the

harm done. Notably, it was only after the complaint had been filed that it occurred

to Chang, in a belated gesture of good will, to invite Ranara back to work in his

store. Chang's sincerity is suspect. We doubt if his offer would have been made if

Ranara had not complained against him. At any rate, sincere or not, the offer of

reinstatement could not correct the earlier illegal dismissal of the petitioner. The

private respondents incurred liability under the Labor Code from the moment

Ranara was illegally dismissed, and the liability did not abate as a result of

Chang's repentance.

The failure of the petitioner to file a motion for reconsideration of the NLRC

decision before coming to this Court was not a fatal omission. In the interest of

substantial justice, and especially in cases involving the rights of workers, the

procedural lapse may be disregarded to enable the Court to examine and resolve

the conflicting rights and responsibilities of the parties. This liberality is warranted

in the case at bar, especially since it has been shown that the intervention of the

Court was necessary for the protection of the dismissed laborer.

We sustain the findings of fact of the Labor Arbiter regarding the petitioner's

monetary claims on the basis of the documentary evidence submitted by the

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private respondents. We also agree that it was not necessary for the NLRC to

require the production of the originals thereof in the absence of any challenge to

their genuineness and due execution from the petitioner.

The petitioner in this case was an ordinary driver in the private respondents'

employ. He had no special abilities to make him indispensable to his employer.

He did not belong to a powerful labor union vigilant of the rights of its members.

The employer thought his services were disposable at will and so arbitrarily

dismissed him. They miscalculated, for the petitioner was not really that

vulnerable. The fact is that. alone though he was, or so it appeared, he had

behind him, even as a lowly worker, the benevolence of the law and the

protection of this Court.

WHEREFORE, the challenged decision of the NLRC is AFFIRMED, with the

modification that in addition to the monetary awards therein specified, the

petitioner shall be entitled to separation pay and three years' back wages in lieu

of reinstatement. No costs.

SO ORDERED.

Republic of the Philippines

SUPREME COURT

Manila

THIRD DIVISION

G.R. No. 82249 February 7, 1991

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WILTSHIRE FILE CO., INC., petitioner,

vs.

THE NATIONAL LABOR RELATIONS COMMISSION and VICENTE T.

ONG, respondents.

Angara, Abello, Concepcion, Regala & Cruz for petitioner.

Jose R. Millares & Associates for private respondent.

FELICIANO, J.:p

Private respondent Vicente T. Ong was the Sales Manager of petitioner Wiltshire

File Co., Inc. ("Wiltshire") from 16 March 1981 up to 18 June 1985. As such, he

received a monthly salary of P14,375.00 excluding commissions from sales

which averaged P5,000.00 a month. He also enjoyed vacation leave with pay

equivalent to P7,187,50 per year, as well as hospitalization privileges to the

extent of P10,000.00 per year.

On 13 June 1985, upon private respondent's return from a business and pleasuretrip abroad, he was informed by the President of petitioner Wiltshire that his

services were being terminated. Private respondent maintains that he tried to get

an explanation from management of his dismissal but to no avail. On 18 June

1985, when private respondent again tried to speak with the President of

Wiltshire, the company's security guard handed him a letter which formally

informed him that his services were being terminated upon the ground of

redundancy.

Private respondent filed, on 21 October 1985, a complaint before the Labor

Arbiter for illegal dismissal alleging that his position could not possibly be

redundant because nobody (save himself) in the company was then performing

the same duties. Private respondent further contended that retrenching him could

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not prevent further losses because it was in fact through his remarkable

performance as Sales Manager that the Company had an unprecedented

increase in domestic market share the preceding year. For that accomplishment,

he continued, he was promoted to Marketing Manager and was authorized by the

President to hire four (4) Sales Executives five (5) months prior to his

termination.

In its answer, petitioner company alleged that the termination of respondent's

services was a cost-cutting measure: that in December 1984, the company had

experienced an unusually low volume of orders: and that it was in fact forced to

rotate its employees in order to save the company. Despite the rotation of

employees, petitioner alleged; it continued to experience financial losses andprivate respondent's position, Sales Manager of the company, became

redundant.

On 2 December 1986, during the proceedings before the Labor Arbiter,

petitioner, in a letter1 addressed to the Regional Director of the then Ministry of

Labor and Employment, notified that official that effective 2 January 1987,

petitioner would close its doors permanently due to substantial business losses.

In a decision dated 11 March 1987, the Labor Arbiter declared the termination of

private respondent's services illegal and ordered petitioner to pay private

respondent backwages in the amount of P299,000.00, unpaid salaries in the

amount of P22,352.11, accumulated sick and vacation leaves in the amount of

P12,543.91, hospitalization benefit package in the amount of P10,000.00, unpaid

commission in the amount of P57,500,00, moral damages in the amount of

P100,000.00 and attorney's fees in the amount of P51,639.60.

On appeal by petitioner Wiltshire, the National Labor Relations Commission

("NLRC") affirmed in toto on 9 February 1988 the decision of the Labor Arbiter.

The NLRC held that:

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The termination letter clearly spelled out that the main reason in

terminating the services of complainant is REDUNDANTand not

retrenchment.

The supposed duplication of work of herein complainant and Mr.

Deliva, the Vice-President is absent that would justify redundancy. .

. .

On the claim for moral damages, the NLRC pointed out that the effective date of

private respondent's termination was 18 July 1985, although it was only 18 June

1985 that he received the letter of termination, and concluded that he was not

given any opportunity to explain his position on the matter. The NLRC held that

the termination was attended by malice and bad faith on the part of petitioner,

considering the manner of private respondent was ordered by the President to

pack up and remove his personal belongings from the office. Private respondent

was said to have been embarrassed before his immediate family and other

acquaintance due to his inability to explain the reasons behind the termination of

his services.

In this Petition forCertiorari, it is submitted that private respondent's dismissalwas justified and not illegal. Petitioner maintains that it had been incur