[G.R. NO. 164376 : July 31, 2006]
NATIONAL LABOR RELATIONS COMMISSION, ST. JUDE CATHOLIC SCHOOL, REV. FR. NOEL BEJO, MS. PRISCILLA LOPEZ, MS. NATIVIDAD TAN, MS. VILMA LAO, MS. JENNIFER GIL, MS. REMEDIOS CABANLIT and MR. CAMILO GELIDO, Petitioners, v. MA. BERNADETTE S. SALGARINO, Respondent.
D E C I S I O N
Before us is a Petition for Review of the Decision1 and Resolution2 of the Court of Appeals, dated 21 May 2003 and 1 July 2004, respectively, reversing and setting aside the Decision3 dated 28 September 2001, and Resolution4 dated 29 November 2001 of National Labor Relations Commission (NLRC), and reinstating the Decision5 of Labor Arbiter Edgardo M. Madriaga, dated 11 January 2001, finding petitioners guilty of illegal dismissal.
The facts are:
In April 1988, respondent Maria Bernadette A. Salgarino was employed by petitioner St. Jude Catholic School as Mathematics teacher. She was tasked to teach Algebra, Trigonometry, Statistics and Analytical Geometry for third and fourth year high school students.6
On 15 February 1999, or two weeks before the fourth periodical test of that school year, respondent went on maternity leave. She was expected to be back in petitioner school on 19 March 1999. During her official leave, she conducted make-up tests in her house in order to improve the grades of some of her students. However, this was done by the respondent without the prior permission of petitioners. At this same period, her co-teachers, Ms. Maria Luisa Capistrano (Capistrano), Mrs. Angelita Rivera and Mrs. Michel Bongyad substituted for her in her classes. On 2 March 1999, the periodical test for Mathematics IV was conducted and the same was administered by Capistrano, since respondent was still on leave.7
One of herein petitioners, Head Teacher Ms. Priscila Lopez (Lopez), instructed the substitute teachers to check the test papers and compute the grades of the students in Sections 4-A, 4-B and 4-C.8
On 9 March 1999, the white sheets or the grading sheets for the 4th year students were accomplished by the substitute teachers. It was shown that some 4th year students obtained a failing grade in Math.9 Subsequently, respondent, while still on leave, requested Capistrano to deliver to her house the white sheets which contained the grades in Math of respondent's students. Capistrano delivered the white sheets to respondent's home through a student named Eunice Weeguano.10 Upon receiving them, respondent encircled the failing grades under the column of Daily Work (DW) and placed a passing grade beside each encircled grade. Respondent asserted that as the handling teacher, she had the prerogative to pass her students. She revealed that she required her students to do some projects and conducted make-up tests for them before she went on maternity leave and to improve the final grades of the concerned students. She avers that out of valid and humanitarian reasons, she indicated a passing grade of 75% beside the grades of those with failing grades. Her decision was based on:
Upon return of the white sheets, the substitute teachers noticed therein the additions made by respondent. The substitute teachers immediately reported the matter to Lopez who, in turn, referred the matter to petitioner Rev. Fr. Noel Bejo (Fr. Bejo), SVD, Acting Director/Principal of petitioner school.12
On 24 March 1999, Fr. Bejo instructed respondent to report to his office. He gave her a letter which directed her to submit herself to a panel of investigators and explain why she had allegedly tampered school records, violated school policies and committed misconduct.13
On 26 March 1999, respondent was investigated for her act of increasing the grades of her students while she was on maternity leave. Respondent and the substitute teachers were allowed to attend and participate in the investigation. The investigation yielded the following relevant facts14 :
The investigating panel reached the conclusion that respondent altered her students' grades while she was on leave, which is, according to them, a case of education malpractice or grave misconduct and grossly prejudicial to the good name of the petitioner school. In particular, the investigating committee found respondent to have violated Article XV, Section 79 and Article XVII, Section 94, paragraph (b) of the Manual of Regulations for Private Schools, to wit:
On these bases, the members of the investigating committee ruled to terminate respondent's services. On 15 April 1999, a termination letter was served on respondent. On 29 April 1999, respondent filed with the Labor Arbiter a Complaint for illegal dismissal, proportionate 13th month pay, actual, moral and exemplary damages, and attorney's fees against petitioners.15
In his Decision16 dated 11 January 2001, Labor Arbiter Edgardo Madriaga ruled that respondent was illegally dismissed as there was no valid or just cause to terminate her employment. The relevant portion of the Decision reads:
On appeal by petitioners, the NLRC reversed and set aside the Decision of the Labor Arbiter, on the ground that respondent's act of giving failing students higher grades than what they actually earned is tantamount to serious misconduct which justified her dismissal. The relevant portion of the NLRC Decision17 reads:
Respondent filed a Motion for Reconsideration of the NLRC Decision which was denied for lack of merit in a Resolution dated 29 November 2001.18 Aggrieved, respondent filed a Petition for Certiorari before the Court of Appeals. The appellate court reversed and set aside the Decision dated 28 September 2001, and Resolution dated 29 November 2001 of the NLRC. Reinstating the 11 January 2001 Decision of the Labor Arbiter, the Court of Appeals ratiocinated:
Petitioners moved for a reconsideration thereof, which was denied by the appellate court20 in the Resolution dated 1 July 2004.
Consequently, on 2 September 2004, petitioners filed before this Court, a Petition for Review on Certiorari. In our Resolution21 dated 13 October 2004, we denied the Petition in this wise:
On 4 April 2005, petitioners filed a Motion for Reconsideration with motion to exclude Rev. Fr. Noel Bejo and Jennifer Gill as petitioners, alleging therein that:
Thus, we reinstated the Petition but replaced Rev. Fr. Teodoro Gapuz for Fr. Bejo as one of the petitioners hereof since Fr. Bejo was replaced by Fr. Gapuz as School Director in 2001.24
Petitioners raise the following issues for our consideration:
According to petitioners, Section 79 of the Manual of Regulations for Private Schools mandates that a student's grade should be based solely on his academic performance; that it is therefore a serious academic malpractice or grave misconduct for respondent to give grades that are not based on their scholastic performance; that it is a serious misconduct for respondent to give grades at the time she was still on maternity leave because she has no moral or legal authority then to do so; that there is nothing in the Manual which states that a teacher has the discretion or the option as to what grade she will give her students; and that a teacher has the obligation to determine the grades of students based solely on their academic performance.
The Labor Code commands that before an employer may legally dismiss an employee from the service, the requirement of substantial and procedural due process must be complied with. Under the requirement of substantial due process, the grounds for termination of employment must be based on just or authorized causes. The following are just causes for the termination of employment under Article 282 of the Labor Code:
In the instant case, it appears that since respondent was still on maternity leave, the substitute teachers conducted the final exams in Math for the 4th year students of respondent. Upon computation by the substitute teachers of the grades of the said students, it was shown that some of them obtained failing grades in Math. Subsequently, respondent requested one of the substitute teachers (Capistrano) to deliver to her house the white sheets which contained the grades in Math of respondent's students. With due respect to, and trust in, respondent as the handling teacher in Math, Capistrano delivered the white sheets to respondent through a student named Eunice Weeguano. Upon return of the white sheets, the substitute teachers discovered that the failing grades under the column of Daily Work (DW) were encircled and a passing grade was written beside each encircled grade.25 The substitute teachers immediately reported the matter to Lopez who referred the matter to Fr. Bejo. The increase in grades enabled the concerned students to obtain a passing grade in Mathematics IV, and thus, were able to graduate on time.
Proceeding therefrom, we shall determine whether the aforesaid act of respondent constitutes serious misconduct which justified her dismissal from employment.
To our mind, the acts of the respondent in increasing the marks and indicating passing grades on the white sheets of her students while she was on maternity leave; of not having sought permission from petitioners before conducting the make-up tests in her house,26 contrary to the policy of the petitioners that permission should first be granted before conducting make-up tests that must be conducted in the school premises; of making the increases in the grades of the students during her maternity leave which is not allowed since the substitute teachers were the ones authorized to compute and give the grades for the concerned students; and of invoking humanitarian consideration in doing so which is not a basis in the Manual of Regulations for Private Schools for grading a student, are all acts of transgression of school rules, regulations and policies.
Truly, then, respondent had committed a misconduct. However, such misconduct is not serious enough to warrant her dismissal from employment under paragraph (a) of Article 282 of the Labor Code.
Misconduct is defined as improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character and implies wrongful intent and not mere error of judgment. The misconduct to be serious within the meaning of the act must be of such a grave and aggravated character and not merely trivial or unimportant. Such misconduct, however serious, must nevertheless be in connection with the work of the employee to constitute just cause from his separation.27
In order to constitute serious misconduct which will warrant the dismissal of an employee under paragraph (a) of Article 282 of the Labor Code, it is not sufficient that the act or conduct complained of has violated some established rules or policies. It is equally important and required that the act or conduct must have been performed with wrongful intent.
There is no evidence to show that there was ulterior motive on the part of the respondent when she decided to pass her students. Also, it was not shown that respondent received immoral consideration when she did the same. From the Labor Arbiter up to this Court, respondent has maintained her stand that her decision to pass the concerned students was done out of humanitarian consideration.
Respondent was moved by pity when she learned that some of her students obtained a failing grade in her subject and, thus, will not graduate on time. Respondent believes that some of her students obtained a failing grade in her subject because they were not properly prepared for the 4th periodical exams. She claims that, although the substitute teachers conducted the 4th periodical exams and computed their grades, there were no teachers assigned to conduct classes, lectures and review before the said exam. Thus, unmindful of the events that may transpire thereafter, respondent decided to increase the marks of her students and gave them passing grades.
Respondent argued that had she failed the subject students, some of them would be enrolling in more than two subjects for summer which is not allowed under Section 68(b), Article XIII of the Manual28 that provides that a student may enroll in no more than two subjects during the summer, either for the purpose of making up for subjects previously failed, or for earning advanced credits in other subjects. Respondent avers that some of the students with failing grades in Math had also failed in their two Chinese subjects. Hence, to avoid the violation of the Manual, respondent decided to pass these students.
Based on the foregoing, respondent may have committed an error of judgment in deciding to pass her students, but it cannot be said that she was motivated by any wrongful intent in doing so. As such, her misconduct cannot be considered as grave in character which would warrant her dismissal from employment. We, thus, find her to be guilty only of simple misconduct. It is settled that a misconduct, which is not serious or grave, cannot be a valid basis for dismissing an employee.29
Special consideration should also be given to the fact that respondent has been in the employ of petitioners for 10 years or more, and she has no previous derogatory record. Further, respondent is a recipient of numerous academic excellence awards and recognized by her students and some of her peers in the profession as a competent teacher. Given the foregoing, the penalty of dismissal imposed by petitioners on respondent for a first offense seems unduly harsh and disproportionate to the misconduct being complained of.30 This Court has consistently ruled that the penalty to be imposed on an erring employee must be commensurate with the gravity of his offense.31
In the actual imposition by the employer of the penalties on erring employees, due consideration must be given to their length of service and the number of violations they have committed during their employ.32 Where a penalty less punitive would suffice, whatever missteps may be committed by labor ought not to be visited with a consequence so severe.33 In light of the aforestated considerations, the penalty of dismissal will appear to be too drastic and unreasonable.
Petitioner invoked Section 94(b), Article XVII of the Manual of Regulations for Private Schools34 which provides that the employment of a teacher may be terminated for negligence in keeping school or student records, or tampering with or falsification of the same. According to petitioners, respondent violated the said section when she encircled the failing grades under the DW and indicated a passing grade beside each encircled grade.
Assuming for the sake of argument that respondent had indeed violated Section 94(b) of the Manual, her dismissal from employment is still invalid. Section 94(b) uses the word "may" and not "shall." In this jurisdiction, the tendency has been to interpret the word "shall" or "may" as the context or a reasonable construction of the statute in which they are used demands or requires. As a general rule, the word "may" when used in statute is permissive only and operates to confer discretion while the word "shall" is imperative, operating to impose a duty which may be enforced.35 In the case at bar, the use of the word "may" under Section 94(b) thereof implies that petitioners are permitted and authorized to terminate the employment of respondent for tampering or falsification of school records. However, such authority is not absolute. It does not give petitioners the unlimited power to automatically terminate the employment of respondent. Such authority is merely permissive and discretionary. Such prerogative cannot be permitted by this Court if exercised arbitrarily and unfairly to defeat the constitutional protection to labor. Moreover, as heretofore pointed out, there are circumstances present in this case which mitigate the misconduct of respondent. It would be different if the word "shall" is used or the same is phrased in a negative manner. In such a case, the dismissal of respondent is mandatory and automatic.36 We find no exception to deviate from this general rule of statutory construction.
Petitioners argue that the Labor Arbiter erred in ruling that respondent, as a teacher, has the academic freedom to pass or fail any or all students per his or her discretion.
We agree, however, with the Court of Appeals that the issue of academic freedom is misplaced in this labor case. Academic freedom of faculty members refer to the freedom of teachers from control of thought or utterance of his academic research, findings or conclusions, and has nothing to do with the discretion of teachers to pass or fail any or all her students according to his discretion.37 Hence, we find no compelling reason to determine the same.
Finally, petitioners contend that when respondent tampered the grades of her students, she willfully breached the trust and confidence reposed upon her by petitioners, thus, her dismissal is valid under paragraph (c) of Article 282 of the Labor Code.
In several cases, we made pronouncements that loss of confidence as a ground for validly dismissing an employee under Article 282 of Labor Code applies only to employees occupying positions of trust and confidence or those routinely charged with the care and custody of the employer's money or property. In the case of Mabeza v. National Labor Relations Commission,38 we ruled that:
Likewise, in the case of Concorde Hotel v. Court of Appeals,39 we declared that:
In the instant case, it is clear that respondent is neither a managerial employee or one vested with the powers or prerogatives to lay down management prerogatives. Nor one belonging to the class of cashiers, auditors, property custodians, or those, who, in the normal and routine exercise of their functions, regularly handle significant amounts of money or property.
It is now settled that petitioners failed to comply with the requirement of substantial due process in terminating the employment of respondent. We will now determine whether petitioners had complied with the procedural aspect of lawful dismissal.
In the termination of employment, the employer must (a) give the employee a written notice specifying the ground or grounds of termination, giving to said employee reasonable opportunity within which to explain his side; (b) conduct a hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given the opportunity to respond to the charge, present his evidence or rebut the evidence presented against him; and (c) give the employee a written notice of termination indicating that upon due consideration of all circumstances, grounds have been established to justify his termination.40
Petitioners had complied with all of the above stated requirements as shown by the following established facts:
On 24 March 1999, petitioner Fr. Bejo instructed respondent to report to the former's office. He gave her a letter which instructed her to submit herself to a panel and explain why she had allegedly tampered school records and violated school policies.41
On 26 March 1999, petitioners conducted an investigation on the matter which was held at the New Guidance Office of the petitioner School. The panel of investigators were composed of petitioners Fr. Bejo, Ms. Vilma Lao (Registrar), Mrs. Naty Tan, (Guidance Office Head), Lopez, Mr. Camilo Gelido, Mrs. Jennifer Gill, Ms. Remedios Cabanlit (High School Coordinators). Also present during the investigation were respondent and the substitute teachers. Petitioner Fr. Bejo propounded the following questions to respondent:
Respondent was allowed to answer the abovementioned questions. She explained and defended her acts. After the investigation, petitioners deliberated as to their course of action in resolving respondent's case. Subsequently, petitioners decided to dismiss the respondent from employment for violating Sections 79 and 94 of the Manual of Regulations for Private Schools, and for undue disregard of school policies.42
On 15 April 1999, a termination letter was served by petitioners on respondent.43
While petitioners had complied with the procedural aspect of due process in terminating the employment of respondent, they failed to comply with the substantive aspect of due process as the act complained of does not constitute serious misconduct. Hence, we still hold that the dismissal is illegal.
It must be emphasized at this point that the onus probandi to prove the lawfulness of the dismissal rests with the employer. In termination cases, the burden of proof rests upon the employer to show that the dismissal is for just and valid cause. Failure to do so would necessarily mean that the dismissal was not justified and therefore was illegal.44 In the instant case, petitioners failed to discharge the burden of proving the legality and validity of respondent's dismissal.
We are not unmindful of the equally important right of petitioners, as employer, under our Constitution to be protected on their property and interest. However, the particular circumstances attendant in the instant case convinced us that the supreme penalty of dismissal upon respondent is not justified. The law regards the workers with compassion. Even where a worker has committed an infraction of company rules and regulations, a penalty less punitive than dismissal may suffice. This is not only because of the law's concern for the workingman. There is, in addition, his family to consider. Unemployment brings untold hardships and sorrows on those dependent upon the wage-earner.45
As a caveat, it would do well for respondent to act more conscientiously and with more regard to the policies of petitioners in the future. A repetition or similar misconduct may call for a more severe penalty in the future.
Finally, there being no evidentiary support for the claim of respondent for damages, the same was correctly denied by the Labor Arbiter and Court of Appeals.
WHEREFORE, the Petition for Review is DENIED. The Decision of the Court of Appeals dated 21 May 2003 and its Resolution dated 1 July 2004 in CA-G.R. SP No. 69955, are hereby AFFIRMED. Petitioners are hereby ORDERED to reinstate respondent to her former position or its equivalent without loss of seniority rights or privileges plus full backwages computed from the time her salaries were withheld until she is finally reinstated. With costs.
Panganiban, C.J., Ynares-Santiago, Austria-Martinez, Callejo, Sr., JJ., concur.
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