Gianan v. Marvin Johnson Manpower Corp.

SECOND DIVISION

[G.R. No. 248595. July 4, 2022.]

MAUREEN ANGELI A. GIANAN, petitioner, vs.MARVIN JOHNSON MANPOWER CORPORATION, DIONALD PORNEL, GERALD TAN, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Second Division, issued a Resolution datedJuly 4, 2022which reads as follows:

"G.R. No. 248595 (Maureen Angeli A. Gianan, Petitioner, v. Marvin Johnson Manpower Corporation, Dionald Pornel, Gerald Tan, Respondents.) — The Court resolves to:

1. NOTE petitioner's compliance dated January 11, 2021 with Resolution dated September 3, 2020, submitting the soft copies of the motion to admit attached compliance through the e-mail address of the Judicial Records Office, this Court, at [email protected]; and

2. DISPENSE WITH the filing of respondent's comment on the petition, in view of the failure of Sangalang & Gaerlan Business Lawyers, counsel for respondent, to file comment on the petition for review on certiorari required in the Resolution dated September 3, 2020 within the period fixed therein which definitely have long expired.

This petition assails the following dispositions of the Court of Appeals in CA-G.R. SP No. 148801:

1) Decision1 dated October 29, 2018 affirming the validity of petitioner's dismissal from employment; and

2) Resolution2 dated July 4, 2019 denying petitioner's motion for reconsideration.

Antecedents

In a complaint for illegal dismissal, petitioner Maureen Angeli Gianan (Gianan/petitioner) alleged that she was hired by respondent Marvin Johnson Manpower Corporation (MJMC/respondent) on January 14, 2014 as Human Resource and Marketing Head. 3 On May 4, 2015, she applied for a three (3)-day vacation leave from May 6 to 8, 2015 to go to Catanduanes. On May 5, 2015 she did not report for work due to "emergency reasons." On May 9, 2015, she sent a text message to Operations Manager Marlie C. Matela that she would not be able to report for work because of a typhoon. She too was absent on May 10 and 11, 2015. 4

On May 12, 2015, she reported back to work but was told by HR Assistant Marissa Carmona that her services were already terminated. 5 She was then handed a Notice of Termination, viz.: 6 HESIcT

MEMORANDUM

To	:	MS. MAUREEN ANGELI GIANAN
		Marketing Staff
From	:	HR DEPARTMENT
		MARVIN JOHNSON MANPOWER CORP.
Re	:	AS STATED
Date	:	May 12, 2015

Based on the report submitted by our client officer, stated hereunder are your violations, to wit:

*Incurrence of absence/s without prior notice and approval by the superior during regular working hours last May 5, 2015 (AWOL).

Final Offense — Dismissal

As per company rules and regulations, this offense is against operational efficiency.

Henceforth, and based on the [above-mentioned] circumstances as premise, we regret to inform you that your employment contract will be ended effective immediately May 12, 2015 by our company. MJMC reserves the right to discontinue your employment based on the above offenses and of the employment contract you signed with us.

You are hereby advised that upon the end of your contract, you are required to turn over in good order and condition all company materials that were issued to you by MJMC. To include, processing of your clearance.

For your information guidance and strict compliance on the matter.

[Sgd.]

[Sgd.]

[Sgd.]

CONFORME:

[Sgd.] 5/12/15

Employee's Signature/Date: 7

Gianan tried to talk to the General Manager Elisa Sia to explain why she should not be terminated, but she was not able to do so because she was already compelled to sign the Notice of Termination and leave the office. 8

Respondents, on the other hand, countered that they did not actually dismiss petitioner. Through a Notice of Recall dated May 15, 2015, they recalled the Notice of Termination because they mistakenly indicated that they were dismissing her from work when what they only intended was to direct her to explain her unauthorized absence on May 5, 2015. They even told her that her unpaid salary was available for her to claim and receive. They nonetheless argued that petitioner had committed several infractions prior to the incident. She had once asked for reimbursement worth P798.00 for a supposed lunch she had with a prospective client of the company. It turned out, however, that the supposed lunch never took place. She also had records of violating company rules and regulations by reason of insubordination, unauthorized absences, and tardiness. 9

During her one (1)-year tenure as HR Marketing Head, she was tardy twenty-four times and incurred ten (10) unauthorized absences, viz.: 10

Tardiness:

1. February 26-March 10, 2015 — 8 times — 452 minutes

2. March 11-25, 2015 — 6 times — 357 minutes

3. March 26, 2015 — 120 minutes

4. March 31, 2015 — 95 minutes

5. April 6, 2015 — 233 minutes

6. April 8, 2015 — 76 minutes

7. April 10, 2015 — 56 minutes

8. April 18, 2015 — 62 minutes

9. April 20, 2015 — 16 minutes

10. April 21, 2015 — 17 minutes

11. April 23, 2015 — 78 minutes

12. April 25, 2015 — 23 minutes

Unauthorized Absences:

1. April 11, 2015

2. April 13, 2015

3. April 16-17, 2015 (sick leave)

4. May 5, 2015

5. May 6-8, 2015 (unauthorized leave)

6. May 9, 2015 (unauthorized leave)

7. May 11, 2015 (unauthorized leave)

The company issued three (3) Memoranda dated December 10, 2014, April 17, 2015, and May 8, 2015, directing her to explain these infractions. 11 There was no dismissal to speak of as the same was recalled on May 15, 2015. 12

In her Reply, petitioner denied receipt of the December 10, 2014, April 17, 2015, and May 8, 2015 Memoranda. Her alleged infractions were merely fabricated. 13

The Ruling of the Labor Arbiter

By Decision 14 dated March 30, 2016, the labor arbiter ruled in petitioner's favor, viz.: TAIaHE

WHEREFORE, premises considered, judgment is hereby rendered, finding respondents guilty of illegal dismissal. Concomitantly, respondents are ordered to pay complainant her back wages and separation pay plus ten (10%) percent of the total judgment award by way of and/as attorney's fees, computed as follows:

BACKWAGES

from	to	mos.	rate/mo	basic	13th mo.	slip	TOTAL
5/12/2015	3/30/2016	10.63	16,000	170,080.00	14,173.33	2,725.64	186,978.97
SEPARATION PAY
from	to	yrs	rate
1/14/2014	13/30/2016	2	32,000.00				32,000.00
ADD: 10%	Atty's Fees						218,978.97
							21,897.90
							–––––––––

GRAND TOTAL:

240,876.87

All other claims are dismissed for lack of merit.

SO ORDERED. 15

It was apparent that respondents had terminated petitioner on May 12, 2015. For then, she was told by her superior that she was already dismissed. She was also handed a Notice of Termination. She tried to talk to her superior to explain her side but was instead asked to leave the premises. Respondents' Notice of Recall may no longer be given consideration as it came too late in the day. It was made only as a corrective measure to comply with the due process clause. The Notice of Recall was also defective because it was not received nor acknowledged by petitioner. 16

Petitioner's dismissal was too harsh a penalty considering that it was anchored solely on her unauthorized absence on May 5, 2015. 17

The Ruling of the National Labor Relations Commission (NLRC)

By Decision 18 dated June 30, 2016, the National Labor Relations Commission (NLRC) reversed the Labor Arbiter's decision. It noted that although respondents already declared that they did not terminate petitioner 19 based on her May 5, 2015 unauthorized absence, her other infractions consisting of tardiness for not less than 24 times and unauthorized absences for not less than 10 times warranted her termination under the "totality of infractions" principle. 20

The Ruling of the Court of Appeals

In its assailed Decision dated October 29, 2018, 21 the Court of Appeals affirmed the NLRC's decision. It was held that the NLRC correctly used the "totality of infractions" principle to justify petitioner's dismissal. Although petitioner denied that she was punished for these infractions, still she admitted to have committed the same. While the Notice of Termination bore petitioner's unauthorized absence on May 5, 2015 as the sole basis for petitioner's dismissal, the Notice also bore the words "Final Offense" which, therefore, justified the penalty of "Dismissal." The same was deemed to include petitioner's previous infractions of 24 tardiness and 10 unauthorized absences. 22

The Present Petition

Petitioner now faults the Court of Appeals — First, for sustaining her dismissal on supposed grounds which were not even cited in the Notice of Termination. The same in fact only bore a singular ground, her unauthorized absence on May 5, 2015. For this offense alone, her dismissal was too harsh a penalty; 23Second, for concluding that she admitted to her prior infractions. On the contrary, she had categorically stated in her Reply before the labor arbiter that her alleged infractions are false and unsubstantiated. She was also never properly informed nor given the right to refute the same. Therefore, the totality of infractions principle was improperly applied to her; 24 and Finally, for not granting her moral and exemplary damages under Articles 2217 and 2229 of the Civil Code, as well as attorney's fees under Article 2208 of the New Civil Code, albeit her action was for indemnity and she got compelled to litigate and incur legal expenses to protect her rights. 25

By Resolution 26 dated September 3, 2020, respondents were directed to file their comment on the petition but to date, they have failed to do so. Respondents are therefore deemed to have waived the filing of the said comment. cDHAES

Our Ruling

As a rule, the Court, not being a trier of facts, will not take cognizance of factual issues raised in a petition for review on certiorari under Rule 45 of the Rules of Court. For Section 1, Rule 45 thereof ordains that such petition shall only raise questions of law. As an exception, the Court may proceed to resolve both factual and legal issues, when the factual findings of the Court of Appeals and the NLRC are contrary to the findings of the labor arbiter, as here.

In illegal dismissal cases, before the employer must bear the burden of proving that the dismissal was legal, the employee must first establish by substantial evidence the fact of his or her dismissal from service. Obviously, if there is no dismissal to speak of, there can be no question as to its legality or illegality. It is elementary that a party alleging a critical fact must support his or her allegation with substantial evidence. 27

Here, respondents initially asserted before the labor arbiter that there was no dismissal to speak of as shown by the notice of recall they sent to petitioner clarifying that they were not actually dismissing her and they were only supposed to direct her to explain her unauthorized absence on May 5, 2015. This is an admission against interest which occupies a high position in the hierarchy of evidence. 28 Petitioner is estopped from claiming otherwise. While it may be true that the supposed Notice was not even received by petitioner as it was meant to cover the due process infirmity of petitioner's dismissal, respondents should not be allowed to benefit from their own manipulation or illegal scheme.

As it was, however, the NLRC and the Court of Appeals radically differed from respondents' claim that there was no dismissal to speak of. Both tribunals ruled that there can still be a valid dismissal, applying the "totality of infractions" principle in view of petitioner's alleged past misconduct and infractions. 29 In Sy v. Neat, Inc., 30 the Court held that offenses committed by an employee should not be taken singly and separately. Fitness for continued employment is indivisible and taken as a whole in terms of character, conduct, and ability. Thus, although an employee may have already been punished for his or her previous infractions, this does not mean that his or her employment record would revert to its original clean state. After all, the record of an employee is a relevant consideration in determining the penalty that should be meted out since an employee's past misconduct and present behavior must be taken together in determining the proper imposable penalty. To illustrate, where despite the sanction imposed on the employee, he or she continued to commit misconduct and exhibit undesirable behavior in the place of work, the employer has the right to dismiss such employee if only as a measure of self-protection.

Here, the supposed "totality of infractions" principle was erroneously applied to petitioner. First, the fact remains that per Notice of Termination, petitioner was being dismissed on the singular ground that she incurred an unauthorized absence on May 5, 2015. No other. Note that while respondents in their position paper cited the so-called other infractions of petitioner, there was no intention, much less, decision, to dismiss petitioner based thereon. Thus, it was grave and reversible error for both the NLRC and the Court of Appeals to have, at first instance, ordered petitioner's dismissal where none was shown to have been intended by the employer in the first place.

Second, as mentioned, where the employer itself claims it did not terminate petitioner's employment, the same is an admission against interest which occupies a high value in the hierarchy of evidence. It may have been a belated claim or one that was meant to cover up the infirmity of petitioner's dismissal, but for sure, the employer is already estopped from claiming otherwise. For that matter, neither the NLRC nor the Court of Appeals may ignore such declaration, much less, second guess the real intention of the employer.

Third, there was no factual basis for the Court of Appeals to conclude that petitioner admitted to her so-called past infractions. Since day one, starting with the proceedings before the labor arbiter up until the present petition, petitioner invariably denied the existence of, let alone, her receipt of the supposed Memoranda dated December 10, 2014, April 17, 2015, and May 8, 2015 on her "previous insubordination, tardiness, and unauthorized absences." Petitioner has even gone as far as asserting that her "signatures" appearing on these memoranda were forged.

Fourth, the phrase "Final Offense" borne in the Notice of Termination is at best equivocal. It can refer to any kind of offense, light or serious. As it was, the Notice did not bear any pertinent details, hence, whatever meaning is given to it is at best speculative. ASEcHI

Finally, respondents failed to present independent evidence of petitioner's supposed other infractions such as the payrolls showing the salary deductions pertaining to petitioner's purported absences or tardiness or her performance rating or evaluation. Indeed, bare allegations, unsubstantiated by evidence, are not equivalent to proof under our Rules.

Consequently, the only established infraction of petitioner was her May 5, 2015 unauthorized absence and was the sole basis for her dismissal. But as respondents themselves assert, they had already recalled the Notice of Termination earlier served on petitioner.

Going now to the award of moral and exemplary damages, it is not enough for an employee to prove that he was dismissed without just cause or due process. Moral damages are recoverable only where the dismissal or suspension of the employee was attended by bad faith or fraud, or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs or public policy. "The person claiming moral damages must prove the existence of bad faith by clear and convincing evidence, for the law always presumes good faith."31 On the other hand, exemplary damages are imposed as a corrective measure when the guilty party has acted in a wanton, fraudulent, reckless and oppressive manner. 32 As discussed, since there is no dismissal to speak of, no moral or exemplary damages can be awarded. Too, apart from petitioner's bare allegation of entitlement thereto, there was no proof that respondents acted in a wanton, fraudulent, reckless and oppressive manner to justify an award of moral and exemplary damages.

In Rodriguez v. Sintron Systems, 33 the Court held that in cases where the parties failed to prove the presence of either dismissal of the employee or abandonment of his or her work, the remedy is to reinstate such employee without payment of back wages. It, however, also clarified that the term "reinstatement" in the context of cases where neither dismissal nor abandonment exists is merely an affirmation that the employee may return to work as he or she was not dismissed in the first place. It should not be confused with reinstatement as a relief proceeding from illegal dismissal as provided under Article 279 of the Labor Code. 34

Therefore, in cases where there has been no dismissal at all, there can be no reinstatement as one cannot be reinstated to a position he or she is still holding. Instead, the Court merely declares that the employee may go back to his work and the employer must then accept him or her because the employment relationship between them was never actually severed. More, as there can be no reinstatement to speak of anymore, the doctrine of strained relation likewise has no application to merit the award of separation pay in lieu of reinstatement.

As regards the prayer for payment of backwages, the same must likewise be denied because there was no dismissal. Article 279 of the Labor Code provides for the payment of full back wages, among others, to unjustly dismissed employees. The grant of back wages allows the employee to recover from the employer that which he or she had lost by way of wages as a result of his or her dismissal. More, the Court held that where the employee's failure to work was occasioned neither by his or her abandonment nor by a termination, the burden of economic loss is not rightfully shifted to the employer. Each party must bear his own loss. 35

As for attorney's fees, Article 2208 of the New Civil Code provides that attorney's fees can be recovered in actions for the recovery of wages of laborers and actions for indemnity under employer's liability laws. The same is also recoverable when the respondent's act or omission has compelled the petitioner to incur expenses to protect her interest. Since these conditions are not present here considering that there was no dismissal to speak of, there can be no award of attorney's fees in favor of petitioner.

FOR THESE REASONS, the petition is DENIED. The Decision dated October 29, 2018 and Resolution dated July 4, 2019 of the Court of Appeals in CA-G.R. SP No. 148801 are also SET ASIDE. Respondent Marvin Johnson Manpower Corporation is ORDERED TO REINSTATE petitioner Maureen Angeli A. Gianan to her former position, without backwages. ITAaHc

SO ORDERED."

By authority of the Court:

(SGD.) TERESITA AQUINO TUAZONDivision Clerk of Court

Footnotes

1. Penned by Associate Justice Rafael Antonio M. Santos, with Associate Justices Sesinando E. Villon and Gabriel T. Robeniol concurring; rollo, p. 60.

2. Penned by Associate Justice Rafael Antonio M. Santos, with Associate Justices Sesinando E. Villon and Gabriel T. Robeniol concurring; id. at 34.

3. Id. at 61.

4. Id. at 62.

5. Id.

6. Id. at 66-67.

7. Id.

8. Id. at 9-10.

9. Id. at 62-63.

10. Id. at 69-70.

11. Id. at 121.

12. Id.

13. Id. at 63.

14. Id. at 118-125.

15. Id. at 124-125.

16. Id. at 123-124.

17. Id. at 124.

18. Id. at 337-346.

19. Id. at 68.

20. Id. at 69-71.

21. Id. at 60.

22. Id. at 70-73.

23. Id. at 11.

24. Id.

25. LAWIN — Legal Advocates for Workers' Interest, Counsel for Petitioner; Sangalang & Gaerlan Business Lawyers, Counsel for the Respondents, id. at 12.

26. Rollo, pp. 490-491.

27. Rodriguez v. Sintron Systems, Inc., G.R. No. 240254, July 24, 2019.

28. BP Oil and Chemicals International Philippines v. Total Distribution & Logistics Systems, Inc., 805 Phil. 244, 260-261 (2017). Admissions against interest are those made by a party to a litigation or by one in privity with or identified in legal interest with such party, and are admissible whether or not the declarant is available as a witness. An admission against interest is the best evidence that affords the greatest certainty of the facts in dispute, based on the presumption that no man would declare anything against himself unless such declaration is true.

29. Sy v. Neat, Inc., 821 Phil. 751, 766-767 (2017).

30. Id.

31. Montinola v. Philippine Airlines, 742 Phil. 487, 505 (2014).

32. Id.

33. G.R. No. 240254, July 24, 2019.

34. Art. 294 [279]. Security of tenure. In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (Emphasis and underscoring supplied)

35. Rodriguez v. Sintron Systems, G.R. No. 240254, July 24, 2019.