THIRD DIVISION.
.
FLORENCIO M. DE
LA
CRUZ, JR.,
Petitioner,
G.R.
No.
145417
December 11, 2003
-versus-
NATIONAL
LABOR
RELATIONS
COMMISSION (4TH DIVISION)SHEMBERG
MARKETING
CORPORATIONAND ERNESTO U.
DACAY,
JR.,
Respondents. |
D E C I S I O N
CORONA, J.:
Before us is a Petition
for Review on Certiorari seeking to set aside the decision[1]
of the Court of Appeals dated July 11, 2000, affirming with
modification
the two resolutions of the National Labor Relations Commission (NLRC)
dated
July 9, 1999[2]
and November 19, 1999,[3]
which awarded to petitioner Florencio de la Cruz, Jr., the amount of
P23,900
representing his unpaid wages and indemnity. chanrobles virtuallaw libraryred
The facts follow.chanrobles virtual law library
On May 27, 1996, petitioner
Florencio M. de la Cruz, Jr. was hired by private respondent Shemberg
Marketing
Corporation (Shemberg) as senior sales manager with a monthly salary of
P40,500. Shemberg was engaged in the business of manufacturing,
trading,
distributing and importing various consumer products. The position of
senior
sales manager was then newly created in line with Shemberg's objective
of product positioning in the consumer market. Its duties included,
among
others, the supervision and control of the sales force of the company.
The senior sales manager was also vested with some discretion to decide
on matters within the scope of his functions, including the appointment
of district sales representatives and the reshuffling of salesmen to
achieve
sales targets.cralaw:red
However, on September
14, 1996, Shemberg's human resource department manager, Ms. Lilybeth Y.
Llanto, summoned petitioner and informed him of the management's
decision
to terminate his services. Petitioner asked Llanto for something to do
with the drop in the company's sales. Petitioner then requested a
meeting
with Shemberg's vice president, Ernesto U. Dacay, Jr., but was told
that
the decision of the management was final. His request to be furnished a
30-day written notice was also denied by the management. Hence,
petitioner
filed a complaint for illegal dismissal, non-payment of salary,
backwages,
13th month pay and damages against Shemberg, Ernesto Dacay, Jr. and
Lilybeth
Llanto.chanrobles virtuallaw libraryred
Respondents answered
that petitioner's dismissal was premised on the following: (1) his poor
performance as evidenced by the steady and substantial drop in company
sales since his assumption as senior sales manager; (2) the
dissatisfaction
of his subordinates over his management style and dealings with the
company's
distributors which resulted in the low morale of Shemberg's sales
force,
as evidenced by the joint affidavit[4]
of two of his subordinates, Ruel O. Salgado and Joel D. Sol; (3) his
unauthorized
use of company cellular phone for overseas personal calls[5]
and (4) the unauthorized reimbursement of the plane tickets of his wife
and child.[6]
In short, petitioner was terminated for his failure to meet the
required
company standards and for loss of trust and confidence.cralaw:red
In a decision dated
August 25, 1997, labor arbiter Ernesto F. Carreon ruled that petitioner
Florencio de la Cruz was illegally dismissed and granted his claim for
separation pay, backwages and unpaid wages:chanrobles virtuallaw libraryred
WHEREFORE,
premises considered, judgment is hereby rendered ordering the
respondent
Shemberg Marketing Corp. to pay the complainant Florencio de la Cruz
the
following:chanrobles virtuallaw libraryred
1.
Separation
pay
P40,500.00
2.
Backwages
379,350.00
3. Unpaid
wages
18,900.00
——————
Total P438,750.00
The other claims and
the
cases against respondents Ernesto Dacay, Jr. and Lilybeth Llanto are
dismissed
for lack of merit.chanrobles virtuallaw libraryred
SO ORDERED.
On appeal by
respondents,
the NLRC dismissed the appeal in a decision dated May 13, 1998.[7]
Respondents moved for
reconsideration, presenting additional evidence to support its claim:chanrobles virtuallaw libraryred
(1) an
affidavit
executed on July 11, 1998[8]
by Ms. Lily Joy M. Sembrano, Shemberg's vice president for operations;
(2) petitioner's
letter
of appointment dated July 8, 1996 as senior sales manager;[9]
(3) petitioner's job
description;[10]
(4) memorandum dated
July 30, 1996 addressed to petitioner, sternly warning him about the
huge
drop in company sales;[11]
and
(5) an undated
memorandum
requiring petitioner to explain why he was claiming reimbursement for
his
wife's and child's plane tickets.[12]
Petitioner opposed the
motion for reconsideration and questioned the authenticity of the
additional
evidence submitted by the respondents.[13]
On July 9, 1999, the
NLRC partially granted the motion for reconsideration and modified its
previous resolution:chanrobles virtuallaw libraryred
WHEREFORE,
premises considered, the Motion for Reconsideration filed by the
respondents-appellants
is PARTIALLY GRANTED. The decision of this Commission promulgated on 13
May 1998 is ABANDONED. The decision of Labor Arbiter Ernesto F. Carreon
dated 25 August 1997 is MODIFIED and a new one is entered, to wit:chanrobles virtuallaw libraryred
Ordering
respondent
Shemberg Marketing Corporation to pay complainant Florencio dela Cruz,
Jr., the amount of Twenty Three Thousand Nine Hundred Pesos
(P23,900.00),
broken down as follows: chanrobles virtuallaw libraryred
Unpaid
Wages
P18,900.00
Indemnity
5,000.00
—————
Total P23,900.00
SO ORDERED.[14]
Petitioner filed a
motion
for reconsideration of the above resolution but the same was denied by
the NLRC on November 19, 1999.[15]
Petitioner elevated
the case to the Court of Appeals on a petition for certiorari but it
was
dismissed for lack of merit.[16]
His subsequent motion for reconsideration was likewise denied on
September
8, 2000.[17]chanrobles virtuallaw libraryred
Hence, this petition.cralaw:red
Petitioner raises
the following assignments of error:[18]
I
THE COURT OF APPEALS
COMMITTED REVERSIBLE ERROR WHEN IT REFUSED TO AWARD BACKWAGES
NOTWITHSTANDING
ITS FACTUAL FINDING THAT RESPONDENTS FAILED TO COMPLY WITH THE
TWO-NOTICE
REQUIREMENT, CONTRARY TO THE NEW DOCTRINE IN "SERRANO VS. NLRC AND
ISETANN
DEPT. STORE, G.R. NO. 117040, 27 JANUARY 2000" WHEREBY THE HONORABLE
SUPREME
COURT EN BANC RULED THAT AN EMPLOYEE WHO WAS NOT GIVEN NOTICE MUST BE
PAID
BACKWAGES FROM HIS TERMINATION UNTIL IT IS FINALLY DETERMINED THAT IT
WAS
FOR A JUST CAUSE.chanrobles virtuallaw libraryred
II
THE COURT OF APPEALS
COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT RULED THAT THE SUBMISSION
BY
PETITIONER OF PLANE TICKETS FOR REFUND CONSTITUTED UNAUTHORIZED USE OF
COMPANY FUNDS, DESPITE ABSENCE OF EVIDENCE ON A SPECIFIC PROHIBITION
REGARDING
SUCH REQUEST, AND CONSIDERING THAT THE SAME WAS RESPONDENTS'
AFTERTHOUGHT
FOR NOT BEING RAISED IN THE ORIGINAL POSITION PAPER BEFORE THE LABOR
ARBITER. chanrobles virtuallaw libraryred
III
THE COURT OF APPEALS
COMMITTED GRAVE ABUSE OF DISCRETION WHEN IT FAILED TO AWARD DAMAGES AS
WELL AS ATTORNEY'S FEES.
The petition is without
merit.cralaw:red
Petitioner insists that
the Court of Appeals committed grave abuse of discretion in ruling that
the submission of his family's plane tickets for reimbursement was
tantamount
to fraud and deceit which justified the employer's loss of trust and
confidence
in him. He contends that private respondents' attempt to impute fraud
and
deceit to him was a mere afterthought, considering that it was only
raised
by private respondents for the first time on appeal and not in the
original
position papers submitted to the labor arbiter.chanrobles virtuallaw libraryred
Petitioner was holding
a managerial position in which he was tasked to perform key functions
in
accordance with an exacting work ethic. His position required the full
trust and confidence of his employer. While petitioner could exercise
some
discretion, this obviously did not cover acts for his own personal
benefit.
As found by the court a quo, he committed a transgression that betrayed
the trust and confidence of expenses out of company funds. Petitioner
failed
to present any persuasive evidence or argument to prove otherwise. His
act amounted to fraud or deceit which led to the loss of trust and
confidence
of his employer.cralaw:red
We reiterate the well-established
rule that findings of fact of the Court of Appeals are conclusive on
the
parties and are not generally reviewable by this Court when supported
by
substantial evidence.[19]
The rationale is that this Court, not being a trier of facts, relies in
good part on the assessment and evaluation of evidence by the lower
courts.
We thus subscribe to the following findings of the Court of Appeals in
affirming the NLRC decision, that petitioner's dismissal was for a just
cause:chanrobles virtuallaw libraryred
With
respect
to the unauthorized use of company funds, there appears to be
substantial
evidence to show that petitioner indeed is guilty of the same — but
only
with respect to the reimbursement of plane ticket fares. chanrobles virtuallaw libraryred
Although the
cellular
phone bill statement with the alleged unauthorized overseas calls were
reflected was submitted in evidence, it does not prove that petitioner
was the one who made those calls. Petitioner claimed that the said
mobile
unit was not at all times used by him. This was not controverted by
respondents.
Furthermore, there was no evidence presented to prove that the
recipient
of the overseas call was not at all connected with the company as the
calls
could actually be official business calls. Mere presentation of a
cellular
phone bill statement would not suffice to charge petitioner with
unauthorized
use of company phone especially in the light of the memorandum sent by
the cellular phone company warning its subscribers of illegal
activities
perpetuated by unauthorized individuals posing as their employees.chanrobles virtuallaw libraryred
But this cannot be
true
insofar as the prosecution of the plane tickets of petitioner's family
is concerned. Respondents insist that petitioner submitted these
tickets
and reimbursed the cost of the same from the respondent corporation
without
authority or permission from management. On the other hand, petitioner
merely denied having reimbursed the costs of the tickets or of using
company
funds to buy them. We find that petitioner's denial cannot prevail over
the actual presentation of the plane ticket in the name of petitioner
and
his family and terminal fee stubs bearing three (3) different serial
numbers
but similarly dated. The possession by respondent corporation of the
plane
tickets of petitioner's wife and child clearly shows that the same were
submitted to management for reimbursement along with the other
transportation
expenses of petitioner. Otherwise, there is no way respondent
corporation
could have gotten hold of the same. Petitioner opted not to explain why
these plane tickets were in the possession of respondent corporation.
His
denials without accompanying proof coupled with his silence on this
matter
cannot but be taken against him.chanrobles virtuallaw libraryred
We reject petitioner's
contention that the matter of reimbursement of the plane tickets of his
family was a mere afterthought, not having been raised by respondent in
the original position papers before the labor arbiter. The NLRC acted
correctly
since technical rules of evidence are not binding in labor cases.
Article
221 of the Labor Code provides:chanrobles virtuallaw libraryred
"In any
proceeding
before the Commission or any of the Labor Arbiters, the rules of
evidence
prevailing in courts of law or equity shall not be controlling and it
is
the spirit and intention of this Code that the Commission and its
members
and the Labor Arbiter shall use every and all reasonable means to
ascertain
the facts in each case speedily and objectively and without regard to
technicalities
of law or procedure, all in the interest of due process x x
x " chanrobles virtuallaw libraryred
Thus, in Bristol
Laboratories
Employees' Association vs. NLRC,[20]
this Court upheld the NLRC when it considered additional documentary
evidence
submitted by the parties on appeal to prove breach of trust and loss of
confidence as basis for the dismissal of the petitioner therein.
Likewise,
in Lopez vs. NLRC,[21]
we held that, under Article 221 of the Labor Code, the NLRC could
validly
admit certain documents proving the re-employment of the private
respondent
although they were presented only on appeal. Technicalities should not
be permitted to stand in the way of equitably and completely resolving
the rights and obligations of the parties.[22]chanrobles virtuallaw libraryred
Petitioner was hired
by respondent Shemberg Marketing Corporation on May 27, 1996 and was
terminated
on September 14, 1996. Article 281 of the Labor Code provides:chanrobles virtuallaw libraryred
Probationary
employment. — Probationary employment shall not exceed six (6) months
from
the date the employee started working, unless it is covered by an
apprenticeship
agreement stipulating a longer period. The services of an employee who
has been engaged on a probationary basis may be terminated for a just
cause
or when he fails to qualify as a regular employee in accordance with
reasonable
standards, made known by the employer to the employee at the time of
his
engagement. An employee who is allowed to work after a probationary
period
shall be considered a regular employee.chanrobles virtuallaw libraryred
Petitioner vigorously
contends
that he was not a probationary employee since Shemberg failed to
disclose
to him the reasonable standards for qualifying as a regular employee.chanrobles virtuallaw libraryred
This Court notes, however,
the evidence on record clearly showing that petitioner was well
informed
of the standards to be met before he could qualify as a regular
employee.
This was stated in his appointment paper:chanrobles virtuallaw libraryred
To
:
Florencio dela Cruz
From
:
HRD
Re
:
Appointment
Date
:
July 8, 1996
We are happy
to inform
you that you have been hired as Senior Sales Manager — VISMIN effective
May 27, 1996. As a matter of company policy your performance shall be
periodically
evaluated in accordance with performance standards set by the company.chanrobles virtuallaw libraryred
You will be
reporting
directly to the President and shall maintain coordinating relationship
with the AVP's for TRADING, F & B Division, CUPCO & SHALDAN and
their respective Plant Managers. chanrobles virtuallaw libraryred
LILIBETH Y.
LLANTO
HRD Manager
Noted by:
ERNESTO U.
DACAY, JR.
President
Attached to his
appointment
paper was the job description of sales manager which read:
JOB
DESCRIPTION
Senior Sales
Manager
Visayas Mindanao
Areas
Shemberg
Marketing
Corporation
General
Functions:
Responsible in
(sic)
organizing, planning, establishing, and implementing sales policies and
procedures for the purpose of attaining sales targets.chanrobles virtuallaw libraryred
Specific
Functions:
1. Responsible
in (sic)
the proper marketing, sales and distribution of products in the
assigned
area.
2. Handles the
monitoring
of sales and sees to it that the monthly sales targets are attained.
3. Submits
monthly report
of sales and collection showing comparison against the budgeted sales
targets
for evaluation purposes.
4. Does such
other
functions as may be directed by the President from time to time.
5. Performance
subject
to evaluation and trial period for six (6) months or more. (Italics
supplied.)chanrobles virtuallaw libraryred
A probationary employee
is one who, for a given period of time, is under observation and
evaluation
to determine whether or not he is qualified for permanent employment.
During
the probationary period, the employer is given the opportunity to
observe
the skill, competence and attitude of the employee while the latter
seeks
to prove to the employer that he has the qualifications to meet the
reasonable
standards for permanent employment. The length of time is immaterial in
determining the correlative rights of both the employer and the
employee
in dealing with each other during said period.[23]chanrobles virtuallaw libraryred
There is no dispute
that petitioner, as a probationary employee, enjoyed only temporary
employment
status. In general terms, this meant that he was terminable anytime,
permanent
employment not having been attained in the meantime. The employer could
well decide he no longer needed the probationary employee's services or
his performance fell short of expectations, etc. As long as the
termination
was made before the expiration of the six-month probationary period,
the
employer was well within his rights to sever the employer-employee
relationship.
A contrary interpretation would defect the clear meaning of the term
"probationary."
In this case, respondent Shemberg had good reason to terminate
petitioner's
employment and that was his dishonesty. chanrobles virtuallaw libraryred
WHEREFORE, the instant
petition is hereby DISMISSED for lack of merit and the decision dated
July
11, 2000 of the Court of Appeals is hereby AFFIRMED.cralaw:red
SO ORDERED.chanrobles virtuallaw libraryred
Vitug, Sandoval-Gutierrez
and Carpio Morales, JJ.,
concur.chan
robles virtual law library
____________________________
Endnotes:
[1]
Penned by Associate Justice Martin S. Villarama, Jr. and concurred in
by
Associate Justices Salome A. Montoya and Romeo J. Callejo, Sr. (now
Associate
Justice of the Supreme Court) in CA-G.R. SP No. 57293; Rollo, pp. 27–37.chanrobles virtuallaw libraryred
[2]
Penned by Commissioner Amorito V. Cañete and concurred in by
Presiding
Commissioner Irenea E. Ceniza and Commissioner Bernabe S. Batuhan;
Original
Records, pp. 220-229.
[3]
Original Records, pp. 265-271.chanrobles virtuallaw libraryred
[4]
Original Records, pp. 42-43.chanrobles virtuallaw libraryred
[5]
Original Records, pp. 44-45.chanrobles virtuallaw libraryred
[6]
Original Records, pp. 78–80.chanrobles virtuallaw libraryred
[7]
Original Records, pp. 158–164.chanrobles virtuallaw libraryred
[8]
Original Records, pp. 186-188.chanrobles virtuallaw libraryred
[9]
Original Records, p. 189.chanrobles virtuallaw libraryred
[10]
Original Records, p. 190.chanrobles virtuallaw libraryred
[11]
Original Records, p. 192.chanrobles virtuallaw libraryred
[12]
Original Records, p. 193.chanrobles virtuallaw libraryred
[13]
Original Records, pp. 195-202.chanrobles virtuallaw libraryred
[14]
Original Records, pp. 220–229.chanrobles virtuallaw libraryred
[15]
Original Records, pp. 265–271.chanrobles virtuallaw libraryred
[16]
Record from the CA, pp. 227-228.chanrobles virtuallaw libraryred
[17]
Records from the CA, p. 254.chanrobles virtuallaw libraryred
[18]
Rollo, pp. 16-17.chanrobles virtuallaw libraryred
[19]
Such factual findings shall not be disturbed, unless: (1) the
conclusion
is a finding grounded entirely on speculation, surmise and conjecture;
(2) the inference made is manifestly mistaken; (3) there is grave abuse
of discretion; (4) the judgment is based on a misapprehension of facts;
(5) the findings of fact are conflicting; (6) the Court of Appeals went
beyond the issues of the case and its findings are contrary to the
admissions
of both appellant and appellees; (7) the findings of fact of the Court
of Appeals are contrary to those of the trial court; (8) said findings
of fact are conclusions without citation of specific evidence on which
they are based; (9) the facts set forth in the petition as well as in
the
petitioner's main and reply briefs are not disputed by the respondents;
and (10) the findings of fact of the Curt of Appeals are premised on
the
supposed absence of evidence and contradicted by the evidence on
record.
Martinez vs. CA, 358 SCRA 38, 49-50 (2001).chanrobles virtuallaw libraryred
[20]
187 SCRA 118, 121 [1990].chanrobles virtuallaw libraryred
[21]
245 SCRA 644, 649 [1995].chanrobles virtuallaw libraryred
[22]
Philippine-Singapore Ports Corporation vs. NLRC, 218 SCRA 77 [1993].chanrobles virtuallaw libraryred
[23]
Footnote text not found in the original.chanrobles virtuallaw libraryred |