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[G.R. No. 141886. June 19, 2000]
PHILTREAD TIRE & RUBBER CORP. vs. NLRC
SECOND DIVISION
Gentlemen:
Quoted hereunder, for your information, is a resolution of this Court dated JUN 19 2000.
G.R. No. 141886 (Philtread Tire & Rubber Corp. sv. National Labor Relations Commission, Francisco Velasco and Eduardo G. Santos.)
This is a petition for review on certiorari of the decision 1 Per Justice Romeo J. Callejo, Sr. and concurred in by Justices Quirino D. Abad Santos, Jr. and Mariano M. Umali.of the Court of Appeals, dated December 6, 1999 dismissing the petition of Philtread Tire & Rubber Corporation, Inc. and sustaining the National Labor Relations Commission's resolution, dated November 22, 1995, finding private respondents Francisco Velasco's dismissal and Eduardo Santos' suspension illegal.
On April 21, 1993, W. H. Yokas, vice-president of petitioner company, sent a letter to Mauricio L. Bartolo, president of the Philtread Worker's Union (Union), stating that, after a review of its operations, it found seven janitorial and/or light work positions redundant for which reason, thirty days after notice, the services of the seven employees would be terminated.
On the same day, R.P. Junio, tuber department supervisor of petitioner company, submitted a report to his supervisor, E.A. Ricafort, stating that at about 6:15 o'clock that morning, he informed Nolan Matela, then assigned to the tuber department, of the directive of the manager of the tuber department to re-align the tuber crew, including Matela. The latter claimed he was already assigned as a cushion man and, hence, was not covered by the directive. It was reported that private respondent Santos butted in and told Junio that the latter could not settle the matter by threatening Matela. Junio insisted he was not threatening anybody. Santos blurted out to Matela: "Sige, lumipat ka at pag-lumpy-hin (sunugin) mo ang stocks" and then left.
Based on the report of Junio, Ricafort conducted an investigation of the incident. Matela denied having heard the statement of Santos, while the latter denied having made such statement. Ricafort submitted his report to Atty. R. M. Landicho recommending disciplinary measures be taken against Santos pursuant to par. 15 of the collective bargaining agreement.
On April 23, 1993, Santos was given a 15-day suspension for inciting an employee to disturbance which might result in disruption of operations.
The labor arbiter ruled in favor of respondents and ordered petitioner to reinstate them to their former positions without loss of seniority rights. On appeal to the NLRC, the decision was sustained, and, on certiorari to the Court of Appeals, the petition for review was dismissed. Hence, this petition.
With respect to the case of Velasco, petitioner contends that the Court of Appeals erred in sustaining the NLRC's finding that respondent was dismissed on the ground of retrenchment, the real basis for the former's dismissal being redundancy. Since respondent was terminated on the ground of redundancy, petitioner was not required to prove it was incurring substantial losses. Assuming that petitioner was bound to follow the criteria for retrenchment, respondent's termination was nonetheless justified. It argues that the state of Velasco's health and limited physical abilities justified his retrenchment using the criterion of efficiency.
With respect to Santos, petitioner contends that absent any possible motive for Junio to make false accusations against Santos, Junio's narration of what transpired must be given credence.
The petition has no merit.
First. As noted by the Court of Appeals, petitioner's stance is inconsistent. While petitioner insists that it terminated the services of Velasco on the ground of redundancy, it likewise claims it terminated respondent's services because of severe losses. This inconsistency is clear from petitioner's letter to the union advising it of its decision to dismiss. The letter reads:
Dear Mr. Bartolo:
This is to inform your that after a review of our operations and other allied activities, Seven (7) janitorial and/or light work positions are found to be redundant for our purposes.
For the above reason, we regret to advise you that after Thirty (30) days from receipt of this letter the employment of these Seven (7) employees shall be terminated.
The Company will extend to them whatever benefit they are entitled to arising from their retrenchment.
Attached is the list of workers affected by the retrenchment.
Very truly yours,
W.H. Yokas
Vice-President Manufacturing
Retrenchment is different from redundancy. As held in AG&P United Rank and File Association v. NLRC (265 SCRA 159 (1996)), redundancy exists when the services of an employee are in excess of the needs of the employer. Retrenchment, on the other hand, is an economic measure resorted to primarily to avoid or minimize business losses. Thus, the evidence needed to prove the termination of employment because of redundancy is different from the evidence needed to prove losses. Petitioner has only itself to blame for its ambiguity.
Realizing this defect, it is now contended that after all the real basis for dismissing respondent is redundancy. Granting this to be so, the petition must nonetheless fail. An enterprise seeking to terminate an employee on the ground of redundancy must comply with the following requirements: (1) written notice to the employee and the Department of Labor and Employment at least one month prior to the termination of employment; (2) payment of separation pay equivalent to at least one month pay or one month pay for every year of service, whichever is higher; (3) good faith in abolishing redundant positions; and (4) fair and reasonable criteria in ascertaining what positions are to be declared redundant. (Asian Alcohol Corporation v. NLRC, 305 SCRA 416 (1999))
Petitioner failed to comply with these requirements. First, it admits its failure to furnish the DOLE with a copy of the notice to terminate respondent's services. Second, as found by the Court of Appeals and the NLRC, its good faith is negated by the fact that, at the time of respondent's dismissal, petitioner had forty-three casual and twenty-two probationary employees. Thus, under the last-in, first-out rule, permanent employees like respondent should be given preference in retaining their posts. Finally, petitioner failed to notify the union of fair and reasonable criteria for the implementation of its redundancy (1987)), it was held that in selecting the employees whose services are to be terminated, a fair and reasonable criteria must be used, such as but not limited to: (a) less preferred status (e.g., temporary employees), (b) efficiency rating, and (c) seniority. In the case at bar, petitioner has not shown that it gave notice of any reasonable criteria for terminating the services of seven of its permanent employees.
Second. Petitioner maintains its supervisor's positive account of what transpired between him and Santos should be given credence over the negative testimony of Matela and Santos.
This is a factual issue. The factual finding of the NLRC and the labor arbiter, especially where such findings are affirmed by the Court of Appeals, are accorded respect and finality in this Court unless shown to be unsupported by substantial evidence. (International Pharmaceuticals, Inc. v. NLRC, 287 SCRA 213 (1998)) The matter of determining which of two plausible testimonies should be given more weight is a function of a fact-finder, which this Court is not.
WHEREFORE, the petition for review is DENIED for lack of showing of any reversible error committed by the Court of Appeals.
Very truly yours,
(Sgd.) TOMASITA B. MAGAY-DRIS
Clerk of Court
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