FIRST DIVISION
[G.R. No. 244000. June 26, 2019.]
ZOSIMO YEE AVANCEÑA III, petitioner, vs.CREATIVE CUISINE, INC., VIA MARE AND ANASTACIA M. BAUTISTA, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedJune 26, 2019which reads as follows:
"G.R. No. 244000 (Zosimo Yee Avanceña III vs. Creative Cuisine, Inc., Via Mare and Anastacia M. Bautista) — The petitioner's motion for an extension of thirty (30) days within which to file a petition for review on certiorari is GRANTED, counted from the expiration of the reglementary period.
This is a Petition for Review from the Decision 1 of the Court of Appeals (CA) dated September 10, 2018 in CA-G.R. SP No. 154431, which affirmed the Decision 2 dated October 24, 2017 of the National Labor Relations Commission (NLRC), finding petitioner Zosimo Yee Avanceña III (Avanceña) validly dismissed from employment.
On January 17, 2017, Avanceña filed a Complaint 3 for illegal dismissal against respondents Via Mare owned and operated by Creative Cuisine, Inc., and its president Anastacia Bautista (collectively referred to as respondents). He alleged that he was hired as a waiter by Via Mare Restaurant on August 19, 2009 and earned P16,000.00 a month at the time of his dismissal on August 18, 2016. 4
Respondents maintained that on January 24, 2016, Avanceña figured in an altercation with the restaurant's pantryman, Louie Velasco (Velasco), over the order Avanceña entered in the restaurant's point of sale system (POS). Apparently, Avanceña failed to inform Velasco that the oysters he entered in the POS were reserved in advance by a customer, prompting Velasco to confront him about it. Avanceña provoked Velasco that escalated into a verbal scuffle in the presence of and within hearing distance of the guests. Danilo Flores (Flores), who was the guard on duty, recalled that Avanceña instructed him to stay put so he could witness him punching Velasco. In a Letter 5 dated February 12, 2016, respondents advised Avanceña to change his behavior under pain of dismissal.
However, Avanceña was again involved in another incident, this time with Flores, where he slapped Flores with a bundle of money bills. Flores did not immediately react to the provocation but one customer who witnessed the incident encouraged Flores to report Avanceña to the management. Flores informed the management of the incident through a Letter 6 dated February 9, 2016. Flores and his employer, RJE Speed Guard 82 Security and Investigation Agency (RJE), lodged a complaint 7 against Avanceña before Barangay UP Campus wherein no amicable settlement was reached. 8 Then, Flores filed a complaint for slander by deed with the Prosecution Office of Quezon City on May 30, 2016. 9
On June 3, 2016, RJE wrote to respondents to inform them that a criminal case had been filed against Avanceña as a result of his conduct towards Flores. 10 In response, the respondents furnished Avanceña a show cause order 11 dated August 4, 2016 in which he was charged of acts of discourtesy, fighting within company premises and threatening and intimidating others. Avanceña admitted slapping Flores with money bills but clarified that he did it in a joking manner. 12 On August 18, 2016, Avanceña was dismissed on the grounds of serious misconduct and willful breach of lawful orders. 13
In a Decision 14 dated July 25, 2017, the Labor Arbiter (LA) dismissed the complaint of Avanceña for lack of merit. In finding Avanceña's dismissal valid, the LA held respondents were able to show substantial proof that Avanceña was guilty of violating respondents' Code of Conduct and Discipline. His conduct on January 24, 2016 violated Rule V Section 3 (Participating in Disturbances) and Section 5 (Scandalous Acts) of respondents' Code of Conduct and Discipline and should have meted the penalty of dismissal but was instead given another chance with a warning that a similar infraction would lead to the termination of his employment. However, despite such warning, he figured in another incident on February 9, 2016 which resulted to the filing of a criminal complaint for slander by deed against him. 15
On appeal, the NLRC affirmed the ruling of the LA. 16 His Motion for Reconsideration was denied in a Resolution 17 dated November 29, 2017. In addition to the findings of the LA, the NLRC held that it does not matter if subsequently the criminal case against Avanceña was settled by the execution of an Affidavit of Desistance 18 because 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 been dropped by the City Prosecutor is not binding and conclusive upon a labor tribunal. This holds true especially where the execution of the Affidavit of Desistance was made by Flores on November 16, 2016, or two (2) months after the termination of Avanceña's employment. The NLRC took Avanceña's seven (7) years of service against him due to the finding that his violation of the Code of Conduct and Discipline was shown to be willful and such willfulness was characterized by a wrongful attitude. 19
The CA rendered its Decision 20 on September 10, 2018, whereby Avanceña's petition was dismissed for lack of merit. The CA held that while the squabble between Avanceña and Velasco was not necessarily serious or abusive, the second incident where Avanceña slapped Flores with money bills is not only a cause for filing a criminal action but also involves a malicious intent to humiliate and devalue a person's self-worth. 21 Avanceña cannot downplay the slapping incident as a mere joke or horseplay. The fact that Flores filed a case against Avanceña is an indication that the incident felt more like an insult to Flores than mere horseplay. The CA also reiterated that one's tenure or length of service is not a bargaining chip which an employee may hold against the employer. 22 Avanceña's Motion for Reconsideration was denied in a Resolution 23 dated January 8, 2019. Hence, the instant petition.
As correctly held by the CA, while the squabble between Avanceña and Velasco was not necessarily serious or abusive, the second incident where Avanceña slapped Flores with paper bills is not only a cause for filing a criminal action but also involves a malicious intent to humiliate and devalue a person's self-worth. 24 Avanceña cannot downplay the slapping incident as a mere joke or horseplay because this act constitutes a serious violation of respondents' Code of Conduct and Discipline and imposes dismissal on the first offense. The Code of Conduct and Discipline distinctly provides:
RULE V: DISTURBING PEACE AND ORDER
Section 1. Fighting in Company Premises. —
Fighting, challenging to a fight, threatening or intimidating co-employees, supervisory personnel, officers, or guests; or any form of assault committed inside company premises or during tour of duty outside company premises, except in case of self-defense or in defense of another against an unprovoked assault.
1st offense — dismissal
Section 2. Threatening/Intimidating Others. —
Threatening or intimidating with bodily harm and/or other illegal/immoral acts to another employee or his family in connection with his job, grievances against supervisors, co-employees or guests within or outside company premises.
1st offense — dismissal
xxx xxx xxx
Section 5. Scandalous Acts. —
Committing other acts that may be scandalous in nature or in any way disrupt peace and order within company premises, whether on duty or off. Committing such acts may lead to one's dismissal. 25
Violation of a company rule that prohibits fighting within the company premises, and the infliction of harm or physical injury against any person may be deemed analogous to "serious misconduct" stated in Article 282 (a) of the Labor Code which Avanceña clearly committed. Even assuming arguendo that Avanceña was merely joking when he slapped Flores with the bundle of cash, the Code of Conduct and Discipline imposes dismissal as the penalty for the first infraction, the pertinent portion of which states:
Section 4. Engaging in Horeseplay, Pranks. —
Engaging in horseplay, roughhousing, running, scuffling or throwing things around while working or within company premises or property. This section would also include playing practical jokes or pranks to co-employees or superiors to the detriment of one's efficiency or output, the disruption of operations or the potential harm the prank may cause.
1st offense — dismissal 26
WHEREFORE, premises considered, the petition is DENIED.
SO ORDERED."Jardeleza, J., on official leave.
Very truly yours,
(SGD.) LIBRADA C. BUENADivision Clerk of Court
Footnotes
1. Penned by Associate Justice Stephen C. Cruz with Associate Justices Zenaida T. Galapate-Laguilles and Geraldine C. Fiel-Macaraig, concurring; rollo, pp. 35-42.
2. Penned by Presiding Commissioner Joseph Gerard E. Mabilog, with Commissioners Isabel G. Panganiban-Ortiguerra and Nieves E. Vicar-De Castro, concurring; id. at 69-82.
3.Id. at 86-87.
4.Id. at 89.
5.Id. at 169-170.
6.Id. at 173.
7.Id. at 178.
8.Id. at 177.
9.Id. at 174-176.
10.Id. at 187.
11.Id. at 185-186.
12.Id. at 189.
13.Id. at 191-192.
14. Penned by Labor Arbiter Jonalyn M. Gutierrez; id. at 214-223.
15.Id. at 222-223.
16.Id. at 69-82.
17.Id. at 84-85.
18.Id. at 100.
19.Id. at 81.
20.Id. at 35-42.
21. Id. at 39.
22. Id. at 40.
23. Id. at 44-45.
24. Id. at 39.
25. Id. at 163-164.
26. Id. at 164.