SECOND DIVISION
[G.R. No. 202634. October 13, 2021.]
CHERRY GIL BARCELONA, petitioner,vs. PASADENA FOODS CORPORATION AND CESAR RODRIGUEZ, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated13 October 2021which reads as follows:
"G.R. No. 202634 (Cherry Gil Barcelona v. Pasadena Foods Corporation and Cesar Rodriguez). — This is a Petition for Review 1 from the Decision 2 of the Court of Appeals (CA) dated January 6, 2012 in CA-G.R. SP No. 107829 reversing and setting aside the Resolution 3 dated December 11, 2008 of the National Labor Relations Commission (NLRC) in NLRC LAC No. 11-002909-07 reversing the Decision of the Labor Arbiter in NLRC Case No. RAB-IV-02-20443-05-L dismissing the complaint of Cherry Gil Barcelona (petitioner) for illegal dismissal against Pasadena Foods Corporation and Cesar 4 Rodriguez (respondents).
The Facts
In her petition, petitioner stated that she was hired by the respondents as a service crew of Burger Machine System sometime in November 2003. She continued with her employment until the alleged termination of her contractual employment. 5
During her previous employment with the respondents, petitioner was never charged of any violation involving theft of company proceeds and products until she was transferred at the Tableria La Confianza (Tableria) outlet, Calamba City, Laguna. 6
On her first day at the Tableria Outlet in August 2004, petitioner complained to her supervisor and manager the behavior of two crew members, Acmad and Yawoo. 7 She reported that the two were conspiring in tampering company records, such as DTR validation, inventory report, and sales remittance, and in stealing sales proceeds and food products, by placing the stolen sales and items on the report and remittance of other crew members of the outlet, including her. 8 She claimed that despite her complaint, Acmad and Yawoo were neither investigated nor charged administratively until her dismissal on September 1, 2004. 9
Petitioner was of the opinion that her dismissal was for failure to remit the income during one of her shifts on August 28, 2004. She claimed that she was informed about the unremitted amount by her supervisor. In her defense, she said that the sales proceeds from her shift that day had been endorsed to Acmad, the crew member for the next shift. She, however, was told that she could no longer report for work as the respondents already terminated her employment. She felt aggrieved that no investigation was ever conducted on the unremitted sales proceeds. She averred that she was never charged nor was given an opportunity to explain and defend herself. 10
Petitioner went to the Regional Office of the Department of Labor and Employment (DOLE) to complain the illegality of her dismissal. According to her, prior to the first conciliatory hearing, respondents offered her reinstatement and payment of P5,000.00. She claimed that she then reported for work in September 2004, but was informed that the management changed its mind and that they would no longer reinstate her. 11 CAIHTE
Petitioner did not withdraw the complaint she filed before the DOLE. She alleged that during the conciliatory hearing, respondents formally withdrew the offer of the management. Hence, the case was elevated to the Regional Arbitration Branch. 12
On May 11, 2005, respondents filed their Position Paper with Motion to Dismiss. 13 They claimed that barely three days on the job, petitioner already incurred shortages in her sales remittances and that from then on, she had shortages almost every day. 14
Respondents pointed out that on August 28, 2004, petitioner was able to obtain cash sales in the total amount of P2,205.00 but she declared an understated cash sales in the amount of P1,828.00 and stated in her Daily Sales Report that she has an over remittance of P26.00. They said that the truth, however, was that no remittance was made by the petitioner and that she was not able to show any acknowledgment receipt of the remittance. The next day, she again failed to remit her cash sales. Thus, she was required to report to the office to explain why she padlocked the money box without remitting the cash sales and merely made a paper remittance. 15
Petitioner insisted that she turned over the cash sales to Acmad but the latter denied having received the same. 16
The matter was brought to the attention of the Calamba City Police Station. The next day, petitioner went on absence without leave (AWOL) and later filed this complaint. 17
The Labor Arbiter, in its Decision 18 dated August 30, 2017, found a reasonable belief that petitioner abandoned her job to save herself from possible criminal prosecution. 19 The case was disposed of in this wise:
WHEREFORE, the complaint is hereby DISMISSED. Respondents, however, are ordered to pay complainant the amount of P513.50 as her pro-rated 13th month pay.
SO ORDERED. 20
Petitioner filed an appeal before the NLRC. In its Resolution, 21 the NLRC differed from the findings of the Labor Arbiter and ruled that respondents' defense of abandonment cannot be sustained as no notice of AWOL or abandonment was sent to petitioner. 22 It was also found that the allegation of shortages of cash sales would have been more convincing had petitioner been charged thereof in writing and required to explain. 23 The NLRC held that the respondents failed to comply with the rule on two notices before declaring abandonment: the first asking the employee to explain why she should not be declared to have abandoned her job and the second informing her of the employer's decision to dismiss her on the ground of abandonment. 24 The NLRC concluded that there was constructive dismissal. 25
The dispositive portion of the Resolution reads:
WHEREFORE, premises considered, the assailed decision is hereby modified and appellees directed to pay Cherry Gil Barcelona her separation pay of one month salary for every year of service from November, 2003 [sic] up to December 31, 2007 in the amount of P31,200.00 and full backwages, including 13th month pay and service incentive leave pay in the sum of P208,694.05 to December 31, 2007, plus 10% attorney's fees.
SO ORDERED. 26
The motion for reconsideration filed by the respondents was denied by the NLRC. Hence, a Petition for Certiorari27 was filed before the CA.
The CA in its Decision 28 dated January 6, 2012 held that it was convincingly established that petitioner had, on several occasions, failed to remit the sales proceeds during her shift at the outlet. 29 The CA was in concurrence with the finding of the Labor Arbiter that petitioner abandoned her work after her defalcation of money was discovered and ostensibly also to evade criminal prosecution. 30 Additionally, the CA found that the respondents actually complied with the twin notice requirements of procedural due process and thus, no illegal dismissal was committed by the respondents. 31 The dispositive portion of the Decision states:
WHEREFORE, premises considered, the petition is GRANTED and the 11 December 2008 Resolution and 18 January 2008 Decision of the National Labor Relations Commission are hereby REVERSED AND SET ASIDE. The Decision dated 30 August 2007 of the Labor Arbiter is REINSTATED.
SO ORDERED. 32
Later, petitioner's Motion for Reconsideration of the said Decision was denied by the CA. 33
The Court's Ruling
The petition for review lacks merit. DETACa
Our Constitution, statutes and jurisprudence uniformly guarantee to every employee or worker tenurial security. 34 What this means is that an employer shall not dismiss an employee except for a just or authorized cause and only after due process is observed. 35
In determining whether an employee's dismissal was legal, the inquiry focuses on whether the dismissal violated his right to substantial and procedural due process. An employee's right not to be dismissed without just or authorized cause as provided by law, is covered by his right to substantial due process. 36
The burden of proof rests upon the employer to show that the dismissal is for just and valid cause; failure to do so would necessarily mean that the dismissal was illegal. 37
Here, the respondents dismissed the petitioner for unremitted sales and AWOL. Petitioner's supervisor asked her to explain the failure in remitting the cash sales for August 28 and 29, 2004 and why she padlocked the money box without placing the cash sales inside it. 38 In defense, she said that she endorsed the cash sales to Acmad, the crew member of the next shift. However, Acmad denied her claims. The repeated unremitted cash sales were reported to the police and thus, was recorded in the blotter. Thereafter, petitioner never reported for work again, without any notice to the respondents. 39
Since petitioner stopped reporting for work, respondents sent her a memorandum asking her why she failed to report for work since September 1, 2004 and also to explain her unremitted cash sales. 40 Due to her refusal, the respondents terminated her services on grounds of unremitted sales and AWOL. 41 The Notice of Termination was personally served to petitioner. However, petitioner never replied. Instead, she filed a labor case and insisted that she be given P10,000.00 as settlement. 42
The essence of due process is simply an opportunity to be heard. 43 A formal or trial-type hearing is not at all times and in all instances essential, as the due process requirements are satisfied where the parties are afforded fair and reasonable opportunity to explain their side of the controversy at hand. What is frowned upon is the absolute lack of notice and hearing. 44 Compliance with procedure provided in the Labor Code constitutes the procedural due process right of an employee. In the present case, the respondents clearly complied with the procedural due process by serving: (1) the first notice to petitioner asking her to explain the unremitted cash sales and her failure to report for work without notice to the respondents; and (2) and the Notice of Termination communicating to her that her employment has been terminated. The service upon the petitioner of the two (2) notices is a compliance with the procedural requirements of the Labor Code. This fact was not considered by the NLRC in resolving the appeal before it.
More importantly, there was a just or authorized cause for petitioner's termination. The applicable provision of law to this case is Article 297 of the Labor Code, as amended, which states:
ARTICLE 297. Termination by Employer. — An employer may terminate an employment for any of the following causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer of representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and
(e) Other causes analogous to the foregoing. (Emphasis supplied)
The loss of trust and confidence, as a just cause for termination of employment, is premised on the fact that an employee concerned holds a position where greater trust is placed by management and from whom greater fidelity to duty is correspondingly expected. The betrayal of this trust is the essence of the offense for which an employee is penalized. 45 Loss of trust and confidence to be a valid cause for dismissal must be work related such as would show the employee concerned to be unfit to continue working for the employer and it must be based on a willful breach of trust and founded on clearly established facts. 46 Petitioner's unexplained repeated shortages and unremitted cash sales is a just cause for the termination of her employment. This is considered a breach of the trust reposed upon her to handle company funds.
Further, abandonment is the deliberate and unjustified refusal of an employee to resume his employment. 47 It constitutes neglect of duty and is a just cause for termination of employment under paragraph (b) of Article 282 of the Labor Code. 48 To constitute abandonment, however, there must be a clear and deliberate intent to discontinue one's employment without any intention of returning. In this regard, two elements must concur: (1) failure to report for work or absence without valid or justifiable reason, and (2) a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt acts. 49
Here, after the report of the loss of cash sales to the police, petitioner never reported for work again even after receipt of a memorandum from her employer. Instead of offering an explanation for the unremitted cash sales and her absence without official leave, petitioner filed a case against her employer and even insisted that she be given P10,000.00 as settlement. Clearly, petitioner abandoned her work and showed intent to sever her ties with the respondents. aDSIHc
To sum up, petitioner was not illegally dismissed, thus, she is not entitled to an award of separation pay, backwages, and service incentive leave pay. 50
WHEREFORE, the petition is DENIED. The Decision of the Court of Appeals dated January 6, 2012 in CA-G.R. SP No. 107829, which REVERSED and SET ASIDE the Resolution of the National Labor Relations Commission dated December 11, 2008 NLRC LAC No. 11-002909-07 is hereby AFFIRMED in toto.
SO ORDERED." (Perlas-Bernabe, J., on official leave; Hernando, J., Acting Chairperson per Special Order No. 2846 dated October 6, 2021.)
By authority of the Court:
(SGD.) TERESITA AQUINO TUAZONDivision Clerk of Court
Footnotes
1. Rollo, pp. 9-24.
2. Id. at 29-34; penned by Associate Justice Manuel M. Barrios and concurred in by Associate Justices Juan Q. Enriquez, Jr. and Apolinario D. Bruselas, Jr.
3. Id. at 144-147; penned by Commissioner Nieves E. Vivar-De Castro and concurred in by Presiding Commissioner Benedicto R. Palacol and Commissioner Isabel G. Panganiban-Ortiguerra.
4. Also spelled as "Cezar" in some parts of the rollo.
5. Id. at 10-11.
6. Id. at 11.
7. Id.
8. Id.
9. Id.
10. Id.
11. Id. at 12.
12. Id.
13. Id. at 52-59.
14. Id. at 53.
15. Id.
16. Id. at 54.
17. Id.
18. Id. at 117-120.
19. Id. at 119.
20. Id. at 120.
21. Id. at 135-141.
22. Id. at 138.
23. Id. at 140.
24. Id. at 139.
25. Id.
26. Id. at 141.
27. Id. at 148-154.
28. Id. at 29-34.
29. Id. at 31.
30. Id. at 31-32.
31. Id. at 32.
32. Id. at 33.
33. Id. at 37-38.
34. Baguio Central University v. Gallente, 722 Phil. 494, 504 (2013); Distribution and Control Products, Inc./Tiamsic v. Santos, 813 Phil. 423, 432 (2017).
35. Id.
36. Brown Madonna Press, Inc. v. Casas, 759 Phil. 479, 496-497 (2015).
37. Agusan del Norte Electric Cooperative, Inc. v. Cagampang, 589 Phil. 306, 313 (2008); Distribution and Control Products, Inc./Tiamsic v. Santos, supra note 33, at 433.
38. Rollo, p. 31.
39. Id.
40. Id.
41. Id.
42. Id.
43. Id. at 32.
44. Id.
45. Panaligan v. Phyvita Enterprises Corporation, 811 Phil. 465, 477 (2017) citing Cocoplans, Inc. v. Villapando, 785 Phil. 734, 748-749 (2016).
46. Id.
47. DUP Sound Phils. and/or Tan v. Court of Appeals, 676 Phil. 472, 482 (2011).
48. CRC Agricultural Trading v. NLRC, 623 Phil. 789, 798-799 (2009).
49. Columbus Philippine Bus Corp. v. NLRC, 417 Phil. 81, 100 (2001); Tan Brothers Corp. of Basilan City v. Escudero, 713 Phil. 392, 400-401 (2013).
50. Rollo, p. 33.