Philippine Supreme Court Resolutions > Year 2007 > March 2007 Resolutions > [G.R. No. 142407 : March 12, 2007] ASIAN CONSTRUCTION AND DEVELOPMENT CORPORATION VERSUS NATIONAL LABOR RELATIONS COMMISSION, MARIO M. TOLENTINO, ALFREDO S. GERONIMO AND ALFREDO S. LASCANO :

Quoted hereunder, for your information, is a resolution of the First Division of this Court dated March 12, 2007.

G.R No. 142407 - (ASIAN CONSTRUCTION AND DEVELOPMENT CORPORATION versus NATIONAL LABOR RELATIONS COMMISSION, MARIO M. TOLENTINO, ALFREDO S. GERONIMO and ALFREDO S. LASCANO^[1])

This is a petition for review of the September 16, 1999 decision^[2]of the Court of Appeals in CA-G.R. SP No. 51874 finding no grave abuse of discretion on the part of the National Labor Relations Commission (NLRC) in rendering its March 7, 1996 resolution^[3] in POEA Case No. 92-08-1051.

Private respondents Mario Tolentino, Alfredo Geronimo and Alfredo Lascano were contractual employees of petitioner Asian Construction and Development Corporation^[4] for its foreign principal, Ballast Nedam Groep NV (BNG)^[5]. They were assigned to BNG in Saudi Arabia as general services administrator, personnel administrator and insurance administrator, respectively.^[6]

Due to an alleged lost software in BNG's systems department, an investigation was conducted and a search was made in the work stations of private respondents. Although the search did not produce the missing software, private respondent Mario Tolentino was found in possession of a diskette containing BNG's developed system program and two diskettes containing obscene materials. Private respondent Alfredo Geronimo was discovered to possess a company letter entitled "Legal Opinion on Service Award." Nothing incriminating was found in the room of Alfredo Lascano but he was charged with the fraudulent manipulation of his time sheet. As a consequence, petitioner confiscated their Saudi Arabia residence certificates^[7] and they were suspended. Two days later, they were dismissed from work.

Private respondents filed in the Philippine Overseas Employment Administration (POEA) a complaint for illegal dismissal which was dismissed for lack of merit.^[8] On appeal, the NLRC reversed the POEA's decision. The Court of Appeals affirmed the NLRC.

Hence, this recourse. The only issue here is whether private respondents were illegally dismissed.

It is a rule that:

No worker shall be dismissed except for a just or authorized cause provided by law and after due process. Clearly, dismissals have two facets: first, the legality of the act of dismissal; and second, the legality in the manner of dismissal. The illegality of the act of dismissal constitutes discharge without just cause, while the illegality in the manner of dismissal is dismissal without due process.^[9]

First, in illegal dismissal cases, the employer is burdened to prove just cause for terminating the employment of its employees. The case of the employer must stand or fall on its merits and not on the weakness of the employee's defense.^[10] If a doubt exists between the evidence of the employer and that of the employee, the scales of justice must be tilted in favor of the latter.^[11]

BNG dismissed private respondents on the ground of breach of trust and confidence. However, it failed to prove that private respondents were confidential employees, one of the requisites for the said ground to prosper. Even their employment contracts did not show that their positions involved trust and confidence.^[12]

Assuming without conceding that they were confidential employees, the alleged loss of confidence was never substantiated.

Loss of confidence should not be simulated. It should not be used as a subterfuge for causes which are improper, illegal or unjustified. Loss of confidence must be genuine, not an afterthought to justify an earlier action taken in bad faith.^[13]

Second, private respondents were denied due process. They were summoned to an investigation on the missing software and, although the search did not yield the stolen program, they were nonetheless dismissed from work.

BNG blamed private respondents who allegedly refused to give a formal explanation in their defense. Assuming this was true, the circumstances surrounding the incident must be considered. Private respondents' residence certificates were confiscated by BNG. Without these residence certificates, their stay in Saudi Arabia became illegal, thus their fear that defending themselves would further aggravate their situation.

Not only that. Their dismissal was done in haste. Only two days after the investigation, they were served with notices of termination. Considering that the cause therefor was not the original offense for which they were investigated, a new and separate investigation was needed to determine their culpability.

It was apparent that BNG intended to deprive private respondents of their right to security of tenure by making it appear that there was a breach of trust and confidence - a mere afterthought. Private respondents' dismissal was tainted with illegality in both substance and procedure.

WHEREFORE, the petition is hereby DENIED.

Costs against petitioner.

SO ORDERED.

Endnotes:

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[1] The Court of Appeals was impleaded as a party. However, we have excluded it since this is a petition for review under Rule 45 of the Rules of Court.

^[2] Penned by Associate Justice Eloy R. Bello, Jr. (retired) and concurred in by Associate Justices Jainal D. Rasul (retired) and Ruben T. Reyes (now Presiding Justice of the Court of Appeals) of the Third Division of the Court of Appeals; rollo, pp. 33-39.

^[3] Penned by Commissioner Alberto R. Quimpo (retired) and concurred in by Presiding Commissioner Bartolome S. Carale (retired) and Commissioner Vicente S.E. Veloso (now an Associate Justice of the Court of Appeals) of the First Division of the NLRC; rollo, pp. 147-172.

^[4] Local agent of Ballast Nedam Groep.

^[5] Section 10 of RA 8042 (Migrant Workers and Overseas Filipino Act of 1995) provides that the liability of the principal/employer and the agency for money claims shall be joint and solidary.

^[6] Court of Appeals decision, rollo, p. 34.

^[7] This government-issued certificate was a requirement for the legal stay of foreigners working in the Kingdom of Saudi Arabia.

^[8] Decision dated May 3, 1993, penned by Administrator Felicisimo O. Joson; rollo, pp. 137-145.

^[9] Supreme Court Third Division Resolution in G.R. No. 143600 dated 5 February 2001, citing Shoemart, Inc. v. National Labor Relations Commission, G.R. No. 74229, 11 August 1989, 176 SCRA 385.

^[10] Litton Mills, Inc. v. Sales, G.R. No. 151400, 1 September 2004, 437 SCRA 488.

^[11] Gu-Miro v. Adorable, G.R. No. 160952, 20 August 2004, 437 SCRA 162.

^[12] Rollo, p. 165.

^[13] General Bank & Trust Co. v. Court of Appeals, 220 Phil. 243 (1985).