FIRST DIVISION
[G.R. No. 200554. June 3, 2019.]
EDITHA P. FLORIDA, petitioner, vs.BONTOC MULTI-PURPOSE COOPERATIVE (BCCI), respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution datedJune 3, 2019which reads as follows:
"G.R. No. 200554 (EDITHA P. FLORIDA, Petitioner, v. BONTOC MULTI-PURPOSE COOPERATIVE (BCCI), Respondent.) — After a judicious review of the records, the Court resolves to DENY the appeal against the decision 1 and resolution 2 promulgated on August 19, 2011 and January 11, 2012, respectively, by the Court of Appeals (CA) in CA-G.R. SP No. 03949, whereby the CA reversed and set aside the National Labor Relations Commission (NLRC) decision 3 dated June 30, 2008 and held that the petitioner had not been constructively dismissed.
The petitioner maintained in her appeal that the respondent had changed its theory for the first time before the CA by contending that it had valid cause to terminate her from employment.
The Court disagrees.
Indeed, a party cannot change his theory of the case or his cause of action on appeal because otherwise, prejudice will result to the adverse party. 4 But contrary to the contention of the petitioner, the respondent already raised the existence of a just cause to terminate her from employment in its position paper before the Labor Arbiter, thus:
1.8. Needless to say, her charge of ILLEGAL TERMINATION is with neither factual basis, she having filed a written application for retirement, nor legal basis because even assuming for the sake of argument that she was pressured into retiring, the same does not negate the fact that with two (2) independent audits confirming her perfidy, Respondent had enough legal ground for terminating her. 5 (Italics supplied.)
Article 297 6 of the Labor Code authorizes an employer to dismiss an employee for committing fraud, or for willful breach of the trust reposed by the employer. To be a valid ground for termination, the employer must establish that: (1) the employee is holding a position of trust and confidence; and (2) the act complained against would justify the loss of trust and confidence. 7
There are two (2) classes of positions of trust. The first class consists of managerial employees. They are defined as those vested with the powers or prerogatives to lay down management policies and to hire, transfer suspend, lay-off, recall, discharge, assign or discipline employees or effectively recommend such managerial actions. The second class consists of cashiers, auditors, property custodians, etc. They are defined as those who in the normal and routine exercise of their functions, regularly handle significant amounts of money or property. 8
Here, petitioner served as the respondent's treasurer and cashier. As such, she had control over the receipts and disbursement of funds of the respondent, as well as access to its accounts and financial records. Indubitably, the petitioner had enjoyed the trust and confidence of the respondent. In Cañeda v, Philippine Airlines, 9 this Court acknowledged the unique characteristic of the employment relationship between a corporation and its cashier, viz.:
A special and unique employment relationship exists between a corporation and its cashier. More than most key positions, that of cashier calls for utmost trust and confidence. It is the breach of this trust that results in an employer's loss of confidence in the employee.
In dismissing a cashier on the ground of loss of confidence, it is sufficient that there is some basis for the same or that the employer has a reasonable ground to believe that the employee is responsible for the misconduct, thus making him unworthy of the trust and confidence reposed in him. If there is sufficient evidence to show that the employer has ample reason to distrust the employee, the labor tribunal cannot justly deny the employer the authority to dismiss him. 10
The CA aptly observed that the external audit conducted by the WOCCU/CUES Philippines showed that there was a discrepancy in the amount of P4,156,003.64 in the cooperative's Savings Deposit, Time Deposit, Share Capital, and Loans. 11 The finding of the huge discrepancy was validated by the findings of another independent audit conducted by Virgilio R. Santos & Co., wherein the auditors found unaccounted cash withdrawals and differences between the general and subsidiary ledgers of certain deposit accounts which were within the petitioner's accountability. 12 Notably, the petitioner executed four (4) Deeds of Sale with Right to Repurchase 13 in favor of the respondent to secure the payment of her liabilities. The CA had good reason to consider that such act constituted the petitioner's implied acknowledgement of her transgressions. All these circumstances justify the petitioner's separation from employment on the ground of loss of trust and confidence.
Moreover, the petitioner's act of appropriating the respondent's funds also constitutes misconduct. Misconduct has been defined as improper or wrong conduct; the transgression of some established or definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. To constitute just cause for termination, the misconduct must be in connection with the employee's work. 14 In its decision, the CA relevantly and suitably concluded:
Since private respondent was the treasurer and at the same time Cashier, she had the control over the receipts and disbursements of funds of the cooperative. Her act of appropriating petitioner's funds constitutes misconduct. All the elements for a just cause of dismissal for misconduct are present in this case: private respondent's misappropriation of the funds is serious; her misappropriation of the funds is related to her performance of her duties as Treasurer and Cashier; and, her act of misappropriation rendered her unfit to continue working for petitioner. The foregoing clearly indicate that petitioner had a just cause in terminating petitioner's employment. x x x 15
However, even as we agree that the respondent had just cause to dismiss the petitioner, the respondent still had the burden to prove its compliance with the requirements of procedural due process.
It is settled rule that in dismissing an employee, the employer must serve the employee two notices: (1) the first to inform the employee of the particular acts or omissions for which the employer seeks his dismissal, and (2) the second to inform the employee of his employer's decision to terminate him. The first notice must state that the employer seeks dismissal for the act or omission charged against the employee, otherwise, the noticed does not comply with the rules. 16
We find that the respondent failed to comply with the twin-notice rule, thereby tainting the petitioner's dismissal with irregularity. Nonetheless, the respondent cannot be held liable for illegal dismissal on account of the said procedural infirmity. The CA had correctly ruled that based on Agabon v. NLRC, the respondent should only be made to pay P30,000.00 as nominal damages due to its failure to comply with the twin-notice rule.
Lastly, the petitioner insisted on the illegality of the preventive suspension imposed upon her in the absence of proof that her continued presence in the respondent's premises had posed a threat to its property or to the life or property of her co-employees.
We beg to differ.
The respondent had the right to preventively suspend the petitioner as a measure of self-protection. We deem the imposition of preventive suspension upon the petitioner as necessary to secure the respondent's vital records and documents which, in consideration of the petitioner's position as cashier and treasurer, were under her custody or within her authority to access. 17
At any rate, We concur with the CA that the respondent must pay the wages and other benefits due to the petitioner when the respondent extended her preventive suspension beyond the thirty-day limit prescribed by law. 18 Section 4, Rule XIV of the Omnibus Rules Implementing the Labor Code states:
Sec. 4. Period of suspension. — No preventive suspension shall last longer than 30 days. The employer shall thereafter reinstate the worker in his former or in a substantially equivalent position or the employer may extend the period of suspension provided that during the period of extension, he pays the wages and other benefits due to the worker. In such case, the worker shall not be bound to reimburse the amount paid to him during the extension if the employer decides, after completion of the hearing, to dismiss the worker.
There being no error that may be attributed to the CA, the petition should be denied.
WHEREFORE, the Court DENIES the petition and AFFIRMS the August 19, 2011 decision and January 11, 2012 resolution of the Court of Appeals in CA-G.R. SP No. 03949.
SO ORDERED."Carandang, J.,on official leave.
Very truly yours,
(SGD.) LIBRADA C. BUENADivision Clerk of Court
Footnotes
1.Rollo, pp. 147-157; penned by Associate Justice Gabriel T. Ingles, concurred by Associate Justice Pampio A. Abarintos and Associate Justice Eduardo B. Peralta, Jr.
2.Id. at 182-183.
3.Id. at 81-90.
4.Peña v. Spouses Tolentino, G.R. Nos. 155227-28, February 9, 2011, 642 SCRA 310, 324.
5.Rollo, p. 273.
6. Article 282 (Now 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 or 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.
7.Lagahit v. Pacific Concord Container Lines, G.R. No. 177680, January 13, 2016, 780 SCRA 427, 444.
8.Bristol Myers Squibb (Phils.), Inc. v. Baban, G.R. No. 167449, December 17, 2008, 574 SCRA 198, 205-206.
9. G.R. No. 152232, February 26, 2007, 516 SCRA 668.
10.Id. at 671-672.
11.Rollo, p. 152.
12.Id. at 148.
13.Id. at 328-335.
14.Eats-Cetera Food Services Outlet v. Letran, G.R. No. 179507, October 2, 2009, 602 SCRA 507, 516.
15.Rollo, p. 153.
16.Mercury Drug Corporation v. Serrano, G.R. No. 160509, March 10, 2006, 484 SCRA 434, 448.
17. See Philippine National Bank v. Velasco, G.R. No. 166096, September 11, 2008, 564 SCRA 512, 540.
18. See Valenzuela v. Caltex Philippines, Inc., G.R. Nos. 169965-66, December 15, 2010, 638 SCRA 517, 527-528.