In Blue Dairy Corporation v. NLRC,[39] the Court stressed as a matter of principle that the managerial prerogative to transfer personnel must be exercised without abuse of discretion, bearing in mind the basic elements of justice and fair play. Having the right should not be confused with the manner in which that right is exercised. Thus, it should not be used as a subterfuge by the employer to get rid of “an undesirable worker.” Measured against this basic precept, the petitioners undoubtedly abused their discretion or authority in transferring Menese to the agency’s head office. She had become “undesirable” because she stood in the way of Claro’s entry into the PGH detachment. Menese had to go, thus the need for a pretext to get rid of her. The request of a client for the transfer became the overriding command that prevailed over the lack of basis for the transfer.
We cannot blame Menese for refusing Yan’s offer to be transferred. Not only was the transfer arbitrary and done in bad faith, it would also result, as Menese feared, in a demotion in rank and a diminution in pay. Although Yan informed Menese that “based on the request of the client, she will be transferred to another assignment which however will not involve any demotion in rank nor diminution in her salaries and other benefits,”[40] the offer was such as to invite reluctance and suspicion as it was couched in a very general manner. We find credible Menese’s submission on this point, i.e.,that under the offered transfer: (1) she would hold the position of lady guard and (2) she would be paid in accordance with the statutory minimum wage, or from P11,720.00 to P7,500.00.
In these lights, Menese’s transfer constituted a constructive dismissal as it had no justifiable basis and entailed a demotion in rank and a diminution in pay for her. For a transfer not to be considered a constructive dismissal, the employer must be able to show that the transfer is for a valid reason, entails no diminution in the terms and conditions of employment, and must be unreasonably inconvenient or prejudicial to the employee. If the employer fails to meet these standards, the employee’s transfer shall amount, at the very least, to constructive dismissal.[41] The petitioners, unfortunately for them, failed to come up to these standards.
In declaring Menese’s transfer to be in the valid exercise of the petitioners’ management prerogative, the NLRC grossly misappreciated the evidence and, therefore, gravely abused its discretion in closing its eyes to the patent injustice committed on Menese. It completely disregarded the obvious presence of bad faith in Menese’s transfer. Labor justice demands that Menese be awarded moral and exemplary damages[42] and, for having been constrained to litigate in order to protect her rights, attorney’s fees.[43]
Yan’s solidary liability
Yan had been aware all the time of the utter lack of a valid reason for Menese’s transfer. He had been aware all the time that Dapula’s charges against Menese — the ostensible reason for the transfer — were nonexistent as Dapula failed to substantiate the charges. He was very much a part of the flagrant and duplicitous move to get rid of Menese to give way to Claro, Dapula’s protégée.
Based on the facts, Yan is as guilty as the agency in causing the transfer that was undertaken in bad faith and in a wanton and oppressive manner. Thus, he should be solidarily liable with the agency for Menese’s monetary awards.
The overtime pay award
While the labor arbiter declared that Menese’s claim for overtime pay is unrebutted[44] and, indeed, nowhere in the petitioners’ position paper did they controvert Menese’s claim, we hold that the claim must still be substantiated. In Global Incorporated v. Commissioner Atienza,[45] a claim for overtime pay will not be granted for want of factual and legal basis. In this respect, the records indicate that the labor arbiter granted Menese’s claim for holiday pay, rest day and premium pay on the basis of payrolls.[46] There is no such proof in support of Menese’s claim for overtime pay other than her contention that she worked from
Also, the NLRC noted that the award of P2,600.00 for the refund of the cash bond deposit is overstated and should be adjusted to P600.00 only, as indicated by the payrolls. We likewise find the adjustment in order.
All told, except for the above clarifications on the overtime pay award and the refund of the cash bond deposit, we reiterate and so declare the petition to be devoid of merit.
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