THIRD DIVISION
[G.R. No. 200927. September 20, 2017.]
NELDA A. VAÑO, JOEL CARLOS, and REYNATO G. CERVANTES (as substitute for JOSETA V. CERVANTES), petitioners,vs. MANILA JOCKEY CLUB, INC. and ATTY. ALFONSO REYNO, JR., respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedSeptember 20, 2017, which reads as follows: caITAC
"G.R. No. 200927 (NELDA A. VAÑO, JOEL CARLOS, and REYNATO G. CERVANTES (as substitute for JOSETA V. CERVANTES), Petitioners, v. MANILA JOCKEY CLUB, INC. and ATTY. ALFONSO REYNO, JR., Respondents.) — Under review is the decision promulgated on December 29, 2011, 1 whereby the Court of Appeals (CA) annulled and set aside the resolution issued on January 24, 2011 by the National Labor Relations Commission (NLRC), 2 and reinstated the decision dated June 29, 2010 of the Labor Arbiter (LA) dismissing the petitioners' complaint for illegal dismissal against the respondents.
Antecedents
As summarized by the CA, the antecedent facts are as follows:
Petitioner MJCI is engaged in the horse racing business. As such, it maintains and operates Off-Track Betting Stations (OTBs) by itself and also through other persons under contract or franchise with MJCI commonly known as OTB Operators. MJCI, as well as the OTB operators, employs tellers of their own to man the OTBs and operate ticket-issuing machines provided by MJCI from which the tellers issue betting tickets to bettors. The bets are considered the sales of the OTB which, after deducting the necessary expenses including the dividends paid to the winning bettors, have to be remitted by the tellers at the end of each race day and deposited to the account of MJCI with the designated depository bank. Under the existing OTB Operators Manual and Manual of Policies and Procedures, tellers are mandated to immediately remit their sales proceeds at the end of each racing day to the designated bank, otherwise, if they fail to do so, they will be subject to civil and criminal liability. Also, OTBs which failed to remit their sales proceeds are not allowed to operate on the next racing day which remains until such time that they remit their previous sales proceeds.
Private respondents worked as tellers for MJCI in its branches in E. Rodriguez Avenue in Quezon City and Paltok Street, Sampaloc. Both branches are operated by Elbert Parungao and Mary Ann Parungao, respectively.
The present controversy came to life when sometime in the latter part of 2008, MJCI uncovered anomalies involving millions of pesos that were found missing from its coffers and could not be accounted for. For this reason, the management of MJCI immediately caused an investigation and a special audit was conducted.
Early January 2009, Atty. Reyno issued a Memorandum directing the creation of a Special Disciplinary Committee (SDC) with the main task, among others, to "1. Conduct a formal investigation on officers and employees of MJCI who are suspected of involvement in defrauding MJCI of monies, and other anomalies in violation of MJCI's Company Rules and Regulations and criminal laws" and "2. Submit its findings and recommendations to the President within a reasonable time."
Private respondents were formally invited for a conference to shed light on the alleged irregularities and fraud. Private respondents Nelda Vaño and Josefa Cervantes were investigated in their participation in the non-remittance of sales by the E. Rodriguez OTB while Jose Carlos was investigated in his participation in the non-remittance of sales by the Paltok OTB.
The series of investigations conducted by the SDC resulted to Formal Charges for violations of the MJCI Rules and Regulations against private respondents, thus:
DISHONESTY AND OTHER FRAUDULENT ACTS
a. Engaging/conniving in anomalous transaction — 1st offense; dismissal
b. Falsifying and/or misleading any statement, record, or document — 1st offense; dismissal
OFFENSE AGAINST PROPERTY
a. Gross negligence resulting to large losses to the company and/or goodwill of the customer — penalty varies, depends on the gravity of the negligence/result thereof.
As MJCI hired teller assigned at the E. Rodriguez OTB/Paltok OTB located in Quezon City, you are mandated to account all the transactions and sales proceeds of the said OTB, and remit to MJCI at the end of the racing day the net sales generated.
Investigation revealed that the E. Rodriguez OTB and Paltok OTB have unaccounted and unremitted sales in the amount of P11,949,000.00 and P2,049,411.35 respectively, for the period January 1, 2008 until November 30, 2008. Being the teller of the E. Rodriguez OTB/Paltok OTB, it falls under your duty to account and remit said amount.
Moreover, you have violated company policy on remittances of sales when instead of remitting the cash sales to MJCI, you gave the same to the OTB operators in exchange of the operator's personal check. The Teller's Report Forms submitted for the E. Rodriguez/Paltok OTB indicate that the majority of the remittances are in check. Under the manual for tellers, you are duty-bound to submit the cash sales to the depository bank at the end of the race day, not personal checks.
In view of the above, you are hereby directed to file your answer under oath and submit countervailing evidence if any, within FIVE (5) DAYS from receipt hereof. Your failure to comply will be deemed as waiver on your part to present your evidence.
On March 31, 2009, the certified public accountants commissioned by MJCI to conduct a special audit of its books of accounts submitted an Audit Report disclosing unaccounted check remittances for the period from January 10 to November 30, 2008, as follows: ICHDca
|
E. Rodriguez OTB: |
P12,217,000.00 |
|
Paltok OTB: |
P461,150.00 |
|
Total Unaccounted OTB Remittances |
P12,678,150.00 |
The Audit Report reflects that in E. Rodriguez OTB, of the 131 check remittances that were allegedly made by the private respondents tellers assigned therein, only 17 were verified to have been deposited with MJCI's depository bank. The difference resulted to an unaccounted 114 alleged check remittances. In the Paltok OTB, on the other hand, six (6) of the eight (8) unaccounted check remittances were allegedly replaced with cash by Paltok OTB.
Thereafter, the SDC submitted its Report to Atty. Reyno. It found private respondents guilty as charged and recommended their dismissal from service and forfeiture of their retirement benefits. The SDC likewise recommended the filing of criminal complaint for qualified theft against private respondents.
Private respondents were furnished by registered mail copies of the SDC Report.
On May 18, 2009, a criminal complaint for qualified theft, falsification of commercial and private documents was filed by MJCI against private respondents. After which, private respondents were sent Notices of Termination of their employment effective upon receipt of said notice.
In turn, private respondents filed a Complaint for illegal dismissal with prayer for reinstatement with backwages plus moral damages, exemplary damages, and attorney's fees.
Conciliation and mediation proceedings were conducted but the parties failed to reach an amicable settlement. Hence, they were directed by the Labor Arbiter to submit their respective Position Papers with their pieces of documentary evidence in support thereof. 3
On June 29, 2010, the LA ruled in favor of respondent Manila Jockey Club, Inc. (MJCI) and dismissed the petitioners' complaint, holding that the latter had committed acts prejudicial to the interests of MJCI, particularly, by failing to remit the cash sales for the day after the races to the official collection team and/or the designated depository bank in violation of their official duties and responsibilities; and that they had accepted checks of off-track betting (OTB) station owners in exchange for the total cash sales, in violation of the Manual of Operations and without the authorization of MJCI. The dispositive portion declared:
WHEREFORE, premises considered, judgment is hereby rendered DISMISSING the instant case for lack of merit.
SO ORDERED. 4
On appeal, the NLRC reversed the LA, and declared the petitioners' termination as invalid, 5 observing that MJCI had not pointed to any act that justified their termination; and that the acceptance of checks from the OTB operators was practice authorized by MJCI. The fallo stated:
WHEREFORE, premises considered, the appealed decision is hereby REVERSED and SET ASIDE, and a new one entered declaring the Respondents to have [been] illegally dismissed; and ordering them to reinstate Complainants to their position of OTB Tellers without loss of seniority rights and privileges and to pay them full backwages computed from June 2, 2009 up to reinstatement; plus 10% attorney's fees, as per attached computation of this Commission's Computation Unit which forms part of this decision.
The claim for damages is hereby dismissed for lack of basis.
SO ORDERED.6
As mentioned, the CA granted the writ of certiorari on the ground that the NLRC was guilty of grave abuse of discretion amounting to lack or excess of jurisdiction, and, accordingly, annulled and set aside the ruling of the NLRC. The CA reinstated the decision of the LA dismissing the complaint for illegal dismissal upon its finding that MJCI had been justified in terminating the petitioners' employment; that MJCI had lost its trust and confidence in them, thereby warranting their dismissal; that the petitioners' positions had been imbued with trust and confidence; that their acts of: (a) receiving the personal checks of the OTB operators in exchange for the OTB cash sales; and (b) bloating or falsifying the remittances and the teller's reports to cover up the unaccounted check remittances had effectively breached the trust and confidence reposed in them; and that their receipt of the personal checks had not been authorized by MJCI. The CA disposed thusly:
WHEREFORE, the petition is GRANTED. The assailed Resolutions of the National Labor Relations Commission are hereby REVERSED AND SET ASIDE. The Decision of the Labor Arbiter dated June 29, 2010 is REINSTATED.
SO ORDERED.7
Hence, this recourse.
The petitioners argue that their termination was illegal because they had not done anything to breach the trust and confidence reposed in them by MJCI; that the receipt of the personal checks from the OTB operators was an accepted practice since 2001, and authorized by their superior, Florencio Aguilon, Jr.; that there was no evidence to sustain the CA's finding that they had bloated or falsified the teller's reports.
Was the petitioners' dismissal from employment valid?
Ruling of the Court
The appeal lacks merit.
The petitioners insist that there was no basis for their dismissal; that they had not committed anything illegal or unacceptable to warrant the CA's conclusion that MJCI had effectively lost its trust and confidence in them; that, contrary to the findings of the CA and the LA, the acceptance of the personal checks had been allowed, and had actually been authorized by Mr. Aguilon, Jr., their superior; that they could not be held liable for merely following the instructions of their superior; that such practice of accepting the personal checks had been around as early as in 2001, and had ripened into company practice; and that there was no evidence showing that they had falsified remittances and the teller's reports to cover up shortages in the remittances. TCAScE
The petitioners hereby raise two questions of fact to challenge the validity of their dismissal, 8 namely: (a) whether or not the acceptance of the private checks of OTB Operators had been authorized; and (b) whether or not there was evidence presented to show that they had submitted falsified remittances and teller's reports.
Generally, the Court only deals with and determines questions of law in this recourse, and avoids the arduous task of sifting through factual issues raised because it is not a trier of facts. 9 Yet, certain exceptions to the rule have been recognized. In New City Builders, Inc. v. National Labor Relations Commission, 10 the Court mentions some of the recognized exceptions, to wit:
[i]t is a settled rule that in the exercise of the Supreme Court's power of review, the Court is not a trier of facts and does not normally undertake the re-examination of the evidence presented by the contending parties during the trial of the case considering that the findings of facts of the CA are conclusive and binding on the Court. However, the Court had recognized several exceptions to this rule, to wit: (1) when the findings are grounded entirely on speculation, surmises or conjectures; (2) when the inference made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the findings of facts are conflicting; (6) when in making its findings the Court of Appeals went beyond the issues of the case, or its findings are contrary to the admissions of both the appellant and the appellee; (7) when the findings are contrary to the trial court; (8) when the findings are conclusions without citation of specific evidence on which they are based; (9) when the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondent; (10) when the findings of fact are premised on the supposed absence of evidence and contradicted by the evidence on record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts not disputed by the parties, which, if properly considered, would justify a different conclusion. [Bold emphasis supplied]
The variance between the findings of the CA and the LA, on one hand, and those of the NLRC, on the other, on the issue of whether or not the acceptance of personal checks by the petitioners from the OTB operators had been authorized, justifies a factual review by the Court. But the second factual issue of whether or not the petitioners had falsified remittances and the teller's reports to cover up the shortages does not fall under any of the recognized exceptions; hence, the Court cannot re-evaluate the evidence already reviewed by the CA. It is relevant to note, too, that the record contained sufficient showing by MCJI to sustain the finding by the CA and the LA on the second factual issue.
A review reveals that MCJI prohibited the acceptance of the personal checks of the OTB operators. As such, the petitioners' acceptance of the checks constituted a clear betrayal of the trust and confidence reposed by MCJI in them as tellers. We uphold the findings on this matter by the CA, which we quote in part as follows:
The NLRC's disposition of MJCI's appeal is clearly misplaced. A closer examination of the case reveals that check remittances is not authorized by MJCI.
First, we have observed and noted that the findings of the NLRC were based mainly on the fact that just because the SDC Report mentioned that there were reports of check remittances by the OTB Tellers, the NLRC concluded that there was nothing wrong for private respondents to accept checks from the OTB operators and remit the same.
Secondly, a further reading of the facts would disclose that there are two kinds of checks that are involved in this case. The first kind refers to those unfunded checks which were issued by the OTB operators concerned and accepted by the OTB Tellers in exchange of the sales proceeds or net cash sales in their possession. The second kind refers to those checks which were issued to the OTB Tellers by the bettors of high credit standing in payment of the betting tickets issued to them by the OTB Tellers.
What is in controversy here is the first kind. MJCI asserts that in no instance are the OTB Tellers ever allowed to accept checks from the OTB operators for remittance in exchange of the sales proceeds in their possession. Otherwise, such practice would be against the standing rules and policies of MJCI as it is self-defeating for the purposes of its business. In other words, it is the first kind which is prohibited by MJCI, and this is precisely so because the cash collection from the bets of bettors is the very lifeblood of MJCI. On the other hand, the second kind was allowed because the checks were under the personal guarantee of the top management people and these checks were already funded.
Going back to the defense of private respondents that the practice of check remittances is allowed by Mr. Aguilon, this defense must fall. It bears stressing that the contract of employment is between MJCI and the OTB tellers and Mr. Aguilon is not a party thereto. His position being the head of the Board of Directors 11 is immaterial on the ground that he is merely the head, he is not MJCI (sic) nor is he the Board of Directors. In the same vein, private respondents are employed by MJCI and not by Mr. Aguilon, hence, they are mandated to act in accordance with the Manual of Tellers that was issued by MJCI and to which they assented to when they accepted their employment as OTB Tellers. Just like any ordinary agreement, any violation thereof shall hold the violator civilly and criminally liable. 12
Indeed, MJCI required that the OTB tellers, like the petitioners, should remit their net sales in cash. There was also no logical reason for the OTB tellers to exchange the personal checks of the OTB operators with MJCI's cash net sales. MJCI had no obligation to do so in favor of the OTB operators. Thus, the CA discredited the claim that the acceptance of the personal checks of the OTB operators had become a company practice. For one, the petitioners did not substantiate their claim of the company practice. Secondly, Aguilon, Jr.'s affidavit should not be accepted without question considering that he could not be a credible source of reliable information due to his bias for having then a legal dispute with MJCI. A witness is held to be biased when his relation to the cause or to the parties is such that he has an incentive to exaggerate or to give false color to his statements, or to suppress or to pervert the truth, or to state what is false. 13 Specifically, MJCI had charged Aguilon with the serious crimes of qualified theft, falsification of commercial documents, and falsification of private documents; and the latter, in turn, had countered by accusing representatives of MJCI with perjury, falsification by private individuals, and use of falsified documents. Under such circumstances, his affidavit could not be accorded weight and credence because he thereby had the motivation to give false color to his sworn declarations therein in order to get back at or get even with his former employer.
Consequently, there were sufficient justifications to terminate the petitioners' employment on the ground of loss of trust and confidence.
Loss of trust and confidence as a ground for termination of an employee under Article 282 14 of the Labor Code requires that the breach of trust be willful, meaning it must be done intentionally, knowingly, and purposely, without justifiable excuse. The basic premise for a dismissal on the ground of loss of confidence is that the employee concerned holds a position of trust and confidence. It is the breach of the trust that results in the employer's loss of confidence in the employee. 15 cTDaEH
In Sta. Ana v. Manila Jockey Club, Inc., 16 the Court summarizes the requirements to warrant the employer's termination of the employee's employment on the ground of loss of trust and confidence, thus:
In this regard, to legally dismiss an employee on the ground of loss of trust, the employer must establish that a) the employee occupied a position of trust and confidence, or has been routinely charged with the care and custody of the employer's money or property; b) employee committed a willful breach of trust based on clearly established facts; and, c) such loss of trust relates to the employee's performance of duties.
All of the requirements were satisfactorily established by MJCI. The petitioners were tellers whose positions required them to handle cash and other funds of MJCI. They thereby occupied positions of trust. 17 They also came under the obligation to remit the net cash earnings coming into their hands and custody to the authorized depository bank, and to make truthful teller's reports regarding the same; yet, they wilfully breached the obligation by deviating from the authorized practice and by submitting falsified reports.
WHEREFORE, the Court DENIES the petition for review on certiorari; AFFIRMS the decision of the Court of Appeals promulgated on December 29, 2011; and ORDERS the petitioners to pay the costs of suit.
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Rollo, pp. 32-50; penned by Associate Justice Socorro B. Inting and concurred in by Associate Justice Fernanda Lampas Peralta and Associate Justice Mario V. Lopez.
2.Id. at 100-111.
3.Id. at 33-37.
4.Id. at 38.
5.Id. at 100-111.
6.Id. at 110-111.
7.Id. at 49.
8. "A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any of them. The resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact." See Lorzano v. Tabayag, Jr., G.R. No. 189647, February 6, 2012.
9. Section 1, Rule 45 of the Rules of Court.
10. G.R. No. 149281, June 15, 2005, 460 SCRA 220, 227; citing The Insular Life Assurance Company, Ltd. v. Court of Appeals, G.R. No. 126850, April 28, 2004, 401 SCRA 79, 85-86.
11. Should be Betting Operations Department; see rollo, p. 6.
12.Rollo, pp. 46-47.
13.People v. Losabio, Jr., G.R. No. 186119, October 29, 2009, 604 SCRA 565, 584-585.
14. Now, Article 297 of the Labor Code, per Department Advisory No. 01, Series of 2015 dated July 21, 2015.
15.Norkis Distributors, Inc. v. Descallar, G.R. No. 185255, March 14, 2012 668 SCRA 276, 284-285.
16. G.R. No. 208459, February 15, 2017.
17. See Manila Jockey Club, Inc. v. Trajano, G.R. No. 160982, June 26, 2013, 699 SCRA 584.