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dissenting opinion:

PUNO, J.:

I

The age-old rule is that we accord the highest consideration to the factual findings of labor arbiters especially when they are affirmed by the NLRC. In the case at bar, both the Arbiter and the NLRC found that the track record of private respondent shows she has always been an efficient employee. She started as a bookkeeper in 1988 and by 1990 became the Finance officer and Comptroller of petitioners.

Petitioners dismissed her allegedly because she depleted the company cash balance by paying its due and demandable obligations in violation of contrary "instructions." Petitioners also filed a criminal complaint for estafa against the private respondent. After assessment of the parties evidence, the Arbiter and the NLRC found that the private respondent was unjustly dismissed. The alleged "instructions" were not proved by petitioners by convincing evidence. The estafa case was also thrown out. Thus, it was held that the dismissal of private respondent was malicious and in bad faith. If private respondent was not reinstated, it was only because of the application of the "strained relationship doctrine."

The majority decision now reverses the factual findings of the public respondents and rules in favor of the employers who have been found to have dismissed the private respondent without just cause and with malice and in bad faith. With due respect, I register my dissent.

II

The first issue is whether there is substantial evidence to support the factual finding of the Labor Arbiter and the NLRC that private respondent was illegally dismissed. If there is, it is our bounden duty to affirm their decision for as we are not triers of facts, we traditionally respect their factual findings. With due respect, I submit that there is substantial evidence on record to justify the factual finding of the Arbiter and the NLRC. Article 282(c) of the Labor Code governs dismissal due to loss of trust, viz.:

"Art. 282. Termination by employer. An employer may terminate an employment for any of the following causes:

xxx

(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative."

In International Harvester Macleod, Inc. vs . IAC, ¹ we held that "ordinary breach will not suffice; it must be willful. Such breach is willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. x x x."

There is no doubt that private respondent entered on the blank checks amounts in excess of what had been specified in the cash vouchers and she also made payments to creditors other than those named in said vouchers. The decisive factual question is whether the private respondent has the authority to make these payments. If she has, then her act is not without a justifiable excuse. Petitioners maintain that private respondent lacks authority as said authority belongs exclusively to the senior management official of the corporation. Their witness, Atty. Renato Unson, special assistant to the President, testified as follows: ²cräläwvirtualibräry

"ATTY. BENITEZ:

Can you inform us about the case and what transpired?

WITNESS:

Briefly, this estafa case arose from the violation of the trust and confidence imposed on her by the company being the Cashier and Disbursing Officer of the company. Before the Senior Management left for abroad on March 1990, the Senior management left specific instructions in the form of check voucher that strictly instruct Miss Molina to disburse company funds in accordance with specific instructions mentioned in said voucher. However, when Senior Management arrived from abroad, they were surprised to discover that instead of the company having at least a million pesos in the bank, the company had only P500.00. Upon investigation, Miss Molina explained that what she did was to fill in the blank checks with the amount different from that it was specifically instructed from her.

x x x

ATTY. GARGANTOS:

You stated also that this check was entrusted to her in blank, is that correct?

WITNESS;

Yes, sir.

ATTY. GARGANTOS:

This check if it really been entrusted to her for specific instruction, your office could have readily fill up to the amount she was required to comply with, isnt it?

WITNESS:

Yes, but because the trust reposed on Miss Molina, this check was left knowing that she would fill in the amount in accordance with the instruction.

EXEC. LABOR ARBITER/TO THE WITNESS:

You said complainant violated instructions, specific instruction given to her?

WITNESS:

Yes, sir.

EXEC. LABOR ARBITER:

As to how the checks will be filled up to specific amount?

WITNESS:

Yes, sir.

EXEC. LABOR ARBITER:

Were those amounts stated in the vouchers?

WITNESS:

Very clear, your honor, the amounts were specifically mentioned in the vouchers.

EXEC. LABOR ARBITER:

And yet the checks were left blank?

WITNESS:

Yes, because of the trust reposed on Miss Molina.

EXEC. LABOR ARBITER:

Why were the checks left blank?

WITNESS:

Before the Senior Management left for abroad, they were in a rush so this particular check, maybe the signatory left it in blank knowing that Molina was the cashier who claim to be a relative of the Senior Management and also this trust reposed on her, I believe she would follow the instruction.

Atty. Unsons testimony is contradicted by private complainant.

She testified as follows: ³cräläwvirtualibräry

"ATTY. RIMORIN:

Q When they left for the U.S. did they leave you any vouchers?

MISS MOLINA:

A They left me vouchers and my guideline are (sic) here (producing a list with the date therein March 27 consisting of 8 pages). They left me this one as my guidelines (sic) which is supported by 79 checks, 16 blank checks and 63 with amount.

Q And these 16 blank checks that you mentioned these were left with you with attached vouchers corresponding to this blank checks?

A Yes, sir.

ATTY. RIMORIN:

Q And on those vouchers were indicated the check numbers, as well as, the amount supposed to be placed in the blank check, is that correct?

MISS MOLINA:

A There are already amount in the vouchers but if the voucher is the basis of the check then they should have placed the amount in the check, but they instructed me that they left the check blank so the obligation of the company, they just told me to place the amount as the obligation comes in."

It is obvious that there is an irreconcilable variance between the testimonies of Atty. Unson and the private complainant. The Arbiter and NLRC did not give credence to Atty. Unsons testimony for good reasons. Well to note, Atty. Unson does not have personal knowledge of the alleged instructions of the corporations senior management official. His weak testimony could have been strengthened if the petitioner corporation presented its so called "senior management" official whose instructions were allegedly violated. This senior management official was not, however, presented and the "instructions" which normally ought to appear in writing, were never proved. In contrast, private respondent testified on her authority and was thoroughly examined by the counsel of petitioners and by the Arbiter himself. At the very least, these alleged "instructions" from the senior management official were ambiguous and I agree with the comment of the Solicitor General, thus: ⁴cräläwvirtualibräry

"Moreover, the vouchers corresponding to the blank checks can be considered as mere guidelines in the payment of obligations. There is no explicit showing that the amounts written therein were the only amounts to be filled in the checks or that the creditors listed were the only creditors to be paid. The existence of the blank checks attest to this. Petitioners knew the obligations which were due and demandable even before they left for the United States. Hence, if they had intended to limit the money to be paid out, they could have simply instructed that the exact amount be written on all the checks. Petitioners, however, chose to leave 16 blank checks out of the 79 given to Molina. In effect, the blank checks implied that Molina was allowed to exercise some kind of discretion in the payment of the debts."

It is also difficult to divine why private respondent alone was dismissed. The blank checks were payable to both the private respondent and Mr. Cesar Ratilo, Personnel Manager of petitioner corporation. She testified: ⁵cräläwvirtualibräry

"EXEC. LABOR ARBITER:

Q The so-called 16 blank checks given to you were also blank as to the amount?

MISS MOLINA:

A Yes, sir.

Q What about the payee is it also blank?

A No sir, it is filled up.

Q To whom this check made payable?

A To me and Co. Cesar Ratilo, sir.

Q Is he the same Ratilo who is the personnel manager?

A Yes, sir.

EXEC. LABOR ARBITER:

Q How were these checks made payable to you and Mr. Ratilo?

MISS MOLINA:

A For encashment, sir.

Q I thought these checks were for payment to some creditors?

A Yes, sir.

Q How were they made payable to you and not to the creditors?

A Its just an authority to settle their obligation, sir.

Q What are some of the creditors to whom you paid these checks?

A This serves as my guidelines, sir. (producing a document) Baseco, AG & P.

EXEC. LABOR ARBITER:

Q The check could have been made to Baseco, only the amount is blank, why was that not done?

A I do not know, sir.

AT THIS JUNCTURE, AN OFF-THE RECORD DISCUSSION ENSUED

Q You said the checks were made payable to you and Mr. Ratilo?

A Yes, sir.

Q How was it made payable, for or and?

MISS MOLINA:

A "And," sir.

Q So its not for you to encash this check without Mr. Ratilo?

A Yes, sir.

Q In fact when you encash the check, it was the two of you who encashed it?

A Yes, sir. Mr. Ratilo also signed.

Q Of course after you have filled in the amount?

A. Yes, sir."

As personnel manager, it is improbable for Mr. Ratilo not to notice the big discrepancies between the amounts in the blank checks and the amounts in the vouchers. His lack of objection bolsters the contention of private respondent that she has the authority to pay corporate obligations as they became due. In sum, the factual finding of the Arbiter and the NLRC that private respondent was illegally dismissed is not arbitrary and we have no reason to reverse the same. Their finding is also in accord with our constitutional policy of favoring labor in case there is an equipoise between the contending claims of labor and capital.

The majority also rules that the public respondents "labored under the wrong impression that private respondent was dismissed because she embezzled company funds, x x x." Again, with due respect, I submit that the ruling of the public respondents is supported by the records of the case and hence ought to be sustained. It is primarily based on the testimony of the lone witness for the petitioners, Atty. Unson, viz: ⁶cräläwvirtualibräry

"ATTY. BENITEZ:

Can you inform the Honorable Commission about the nature, the duties of the work of complainant Molina.

WITNESS:

First of all, Miss Molina was terminated by reason of the estafa case filed against her.

x x x

EXEC. LABOR ARBITER:

This is the reason why the complainant was dismissed?

WITNESS:

Because of the violation of the trust. Well, initially because of the estafa case which we believe this actuation amounts to estafa. Of course, as a Cashier because of the violation of the important trust and confidence reposed on her being the Cashier who occupied a very important position.

The position paper of petitioners also claims that private respondents act "x x x resulted in the loss of corporate funds thru falsification of commercial documents x x x." ⁷ Petitioners also accused private respondent of appropriating their property for her personal use. ⁸ Clearly then, private respondent was dismissed because of petitioners erroneous belief that she committed estafa, an element of which is breach of trust and confidence.

The majority also holds that the act of private respondent "x x x placed the company in great jeopardy and disturbed its financial stability, thereby causing it real and actual damage." Obviously, he gave credence to the claim that "petitioner found its checks bouncing one after the other. It failed to meet its financial obligations to its preferred creditors. It had to source financial resources elsewhere in order to pay its due and demandable debts, not to mention its obligations to its employees." Petitioners claim is not contained in their Position Paper. It is not in the supporting affidavit of Atty. Renato Unson. It is not the subject of testimony of Atty. Unson. It is not in the Memorandum of Appeal of petitioners to the NLRC. These allegations of damage were made for the first time in the petition filed with this Court. They were never proved before the Labor Arbiter and the NLRC. Indeed, I find it difficult to accept that the act of private respondent in paying the just and demandable debts of petitioners prejudiced the petitioners. The act of private respondent may have diminished the cash reserve of petitioners but non-payment of their just and demandable debts could have brought more disastrous consequences to the petitioners.

III

I agree with the majority that private respondent was denied due process before she was illegally dismissed. As we held in Tingson Jr. v. NLRC,: ⁹cräläwvirtualibräry

"The law requires that the employer must furnish the worker sought to be dismissed with two (2) written notices before termination of employment can be legally effected: (1) notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and (2) the subsequent notice which informs the employee of the employers decision to dismiss him. (Sec. 13, BP 130; Sec. 2-6 Rule XIV, Book V, Rules and Regulations Implementing the Labor Code as amended). Failure to comply with the requirements taints the dismissal with illegality. This procedure is mandatory; in the absence of which, any judgment reached by management is void and in existence (Tingson, Jr. v. NLRC, 185 SCRA 498 [1990]; National Service Corp. v. NLRC, 168 SCRA 122 [1988]; Ruffy v. NLRC, 182 SCRA 365 [1990]."

In the case at bar, private respondent was merely audited. By no means is this the hearing contemplated by law.

It was clearly hasty for petitioners to dismiss private respondent without hearing her side. As aforestated, private respondents track record shows she has been an efficient employee. Her act of paying the petitioners due and demandable debts did not benefit herself. The diminution of the corporate funds as a consequence of these payments by itself is not a basis for loss of trust especially considering that the offense, if that were an offense, was the first committed by private respondent.

IV

With due respect, I submit that it is high time for the Court to re-examine the ruling of the Labor Arbiter and the NLRC which denied the reinstatement of the private respondent on the ground of strained relationship. The Labor Arbiter held: ¹⁰cräläwvirtualibräry

"x x x

Since respondents have failed to prove a just cause for complainants dismissal, the same is therefore held illegal and hence she should be reinstated to her former position and paid backwages at the rate of her salary of P10,000.00 per month starting the date of her dismissal on November 12, 1990 until she is actually reinstated. However, due to the apparent strained relations between the parties which became very evident during the trial, complainant is hereby granted separation pay equivalent to one month salary for every year of service or P20,000.00 corresponding to her two (2) year tenure, in lieu of reinstatement, without prejudice to her right to backwages which to date already amounts to P250,000.00."

Let us note that private respondent was not reinstated despite the finding of the Arbiter and the NLRC that her dismissal was wrongful, malicious and in bad faith. ¹¹cräläwvirtualibräry

"Strained relationship" is a question of fact. In her affidavit of complaint, private respondent did not allege that she did not want to be reinstated on the ground that her relationship with petitioners has become "strained." In their position paper, petitioners did not also allege that they could not re-employ the private respondents because of "strained relationship." The factual issue of strained relationship was not an issue, hence was not the subject of proof before the Labor Arbiter. There was no factual basis for the Arbiter to hold that ". . . due to the apparent strained relations between the parties which became very evident during the trial x x x" and then deny reinstatement to the private respondent.

I ask for re-examination because our rulings on "strained relationship" cases have been indiscriminately used to justify non-reinstatement of illegally dismissed employees. I respectfully submit that the too liberal use of this "strained relationship" doctrine has eroded the security of tenure of employees guaranteed in our Constitution. Not infrequently, the doctrine is used just because of the vehemence with which the dismissal of an employee is pressed by an employer.

The case at bar shows how the doctrine has been misapplied. Petitioners were found to be guilty of malice and bad faith in dismissing the private respondent. Yet, the petitioners were not compelled to reinstate the private respondent. Instead she was just paid P21,000.00 by the employer. The payment diminishes the right of an employee to security of tenure which ought not to be given any price tag. She has a right to security of tenure even if she belongs to the management level of petitioners corporation.

In the case at bar, it may be argued that the private respondent did not appeal the Arbiter ruling denying her reinstatement. Be that as it may, I respectfully submit that we can use this case as a vehicle to tighten our rulings on "strained relationship" cases. At the very least, I suggest that henceforth, we should require that the alleged "strained relationship" must be pleaded and proved if either the employer or the employee does not want the employment tie to remain. By making "strained relationship" a triable issue of fact before the Arbiter or the NLRC we will eliminate rulings on "strained relationship" based on impressions alone.

IN VIEW WHEREOF, I vote to dismiss the petition.