Attorney's fees in illegal dismissal cases - G.R. No. 185829

G.R. No. 185829

"x x x.

Aliling is entitled to Attorney’s Fees and Legal Interest

Petitioner Aliling is also entitled to attorney’s fees in the amount of ten percent (10%) of his total monetary award, having been forced to litigate in order to seek redress of his grievances, pursuant to Article 111 of the Labor Code and following our ruling inExodus International Construction Corporation v. Biscocho,[53] to wit:

In Rutaquio v. National Labor Relations Commission, this Court held that:

It is settled that in actions for recovery of wages or where an employee was forced to litigate and, thus, incur expenses to protect his rights and interest, the award of attorney’s fees is legally and morally justifiable.

In Producers Bank of the Philippines v. Court of Appeals this Court ruled that:

Attorney’s fees may be awarded when a party is compelled to litigate or to incur expenses to protect his interest by reason of an unjustified act of the other party.

While in Lambert Pawnbrokers and Jewelry Corporation,[54] the Court specifically ruled:

However, the award of attorney’s fee is warranted pursuant to Article 111 of the Labor Code. Ten (10%) percent of the total award is usually the reasonable amount of attorney’s fees awarded. It is settled that where an employee was forced to litigate and, thus, incur expenses to protect his rights and interest, the award of attorney’s fees is legally and morally justifiable.

Finally, legal interest shall be imposed on the monetary awards herein granted at the rate of 6% per annum from October 6, 2004 (date of termination) until fully paid.

 x x x."

When corporate officers are not held solidarily liable with the corporation in illegal dismissal cases. -G.R. No. 185829

G.R. No. 185829

"x x x.

The officers of WWWEC cannot be held

jointly and severally liable with the company

The CA held the president of WWWEC, Jose B. Feliciano, San Mateo and Lariosa jointly and severally liable for the monetary awards of Aliling on the ground that the officers are considered “employers” acting in the interest of the corporation. The CA cited NYK International Knitwear Corporation Philippines (NYK) v. National Labor Relations Commission[50] in support of its argument. Notably, NYK in turn cited A.C. Ransom Labor Union-CCLU v. NLRC.[51]

Such ruling has been reversed by the Court in Alba v. Yupangco,[52] where the Court ruled:

By Order of September 5, 2007, the Labor Arbiter denied respondent’s motion to quash the 3rd alias writ. Brushing aside respondent’s contention that his liability is merely joint, the Labor Arbiter ruled:

Such issue regarding the personal liability of the officers of a corporation for the payment of wages and money claims to its employees, as in the instant case, has long been resolved by the Supreme Court in a long list of cases [A.C. Ransom Labor Union-CLU vs. NLRC (142 SCRA 269) and reiterated in the cases of Chua vs. NLRC(182 SCRA 353), Gudez vs. NLRC (183 SCRA 644)]. In the aforementioned cases, the Supreme Court has expressly held that the irresponsible officer of the corporation (e.g. President) is liable for the corporation’s obligations to its workers. Thus, respondent Yupangco, being the president of the respondent YL Land and Ultra Motors Corp., is properly jointly and severally liable with the defendant corporations for the labor claims of Complainants Alba and De Guzman. x x x

x x x x

As reflected above, the Labor Arbiter held that respondent’s liability is solidary.

There is solidary liability when the obligation expressly so states, when the law so provides, or when the nature of the obligation so requires. MAM Realty Development Corporation v. NLRC, on solidary liability of corporate officers in labor disputes, enlightens:

x x x A corporation being a juridical entity, may act only through its directors, officers and employees. Obligations incurred by them, acting as such corporate agents are not theirs but the direct accountabilities of the corporation they represent. True solidary liabilities may at times be incurred but only when exceptional circumstances warrant such as, generally, in the following cases:

1. When directors and trustees or, in appropriate cases, the officers of a corporation:

(a) vote for or assent to patently unlawful acts of the corporation;

(b) act in bad faith or with gross negligence in directing the corporate affairs;

x x x x

In labor cases, for instance, the Court has held corporate directors and officers solidarily liable with the corporation for the termination of employment of employees done with malice or in bad faith.

A review of the facts of the case does not reveal ample and satisfactory proof that respondent officers of WWEC acted in bad faith or with malice in effecting the termination of petitioner Aliling. Even assuming arguendo that the actions of WWWEC are ill-conceived and erroneous, respondent officers cannot be held jointly and solidarily with it.  Hence, the ruling on the joint and solidary liability of individual respondents must be recalled.        

x x x."

When are backwages and separation pay in lieu of reinstatement awarded in illegal dismissal cases? - G.R. No. 185829

G.R. No. 185829

"x x x.

Aliling is entitled to backwages

and separation pay in lieu of reinstatement

As may be noted, the CA found Aliling’s dismissal as having been illegally effected, but nonetheless concluded that his employment ceased at the end of the probationary period. Thus, the appellate court merely affirmed the monetary award made by the NLRC, which consisted of the payment of that amount corresponding to the unserved portion of the contract of employment.

The case disposition on the award is erroneous.

As earlier explained, Aliling cannot be rightfully considered as a mere probationary employee. Accordingly, the probationary period set in the contract of employment dated June 11, 2004 was of no moment.  In net effect, as of that date June 11, 2004, Aliling became part of the WWWEC organization as a regular employee of the company without a fixed term of employment. Thus, he is entitled to backwages reckoned from the time he was illegally dismissed on October 6, 2004, with a PhP 17,300.00 monthly salary, until the finality of this Decision. This disposition hews with the Court’s ensuing holding in Javellana v. Belen:[40]

Article 279 of the Labor Code, as amended by Section 34 of Republic Act 6715 instructs:

Art. 279. Security of Tenure. - In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. (Emphasis supplied)

Clearly, the law intends the award of backwages and similar benefits to accumulate past the date of the Labor Arbiter’s decision until the dismissed employee is actually reinstated. But if, as in this case, reinstatement is no longer possible, this Court has consistently ruled that backwages shall be computed from the time of illegal dismissal until the date the decision becomes final. (Emphasis supplied.)

 Additionally, Aliling is entitled to separation pay in lieu of reinstatement on the ground of strained relationship.

In Golden Ace Builders v. Talde,[41] the Court ruled:

The basis for the payment of backwages is different from that for the award of separation pay. Separation pay is granted where reinstatement is no longer advisable because of strained relations between the employee and the employer. Backwages represent compensation that should have been earned but were not collected because of the unjust dismissal. The basis for computing backwages is usually the length of the employee's service while that for separation pay is the actual period when the employee was unlawfully prevented from working.

As to how both awards should be computed, Macasero v. Southern Industrial Gases Philippines instructs:

[T]he award of separation pay is inconsistent with a finding that there was no illegal dismissal, for under Article 279 of the Labor Code and as held in a catena of cases, an employee who is dismissed without just cause and without due process is entitled to backwages and reinstatement or payment of separation pay in lieu thereof:

Thus, an illegally dismissed employee is entitled to two reliefs: backwages and reinstatement. The two reliefs provided are separate and distinct. In instances where reinstatement is no longer feasible because of strained relations between the employee and the employer, separation pay is granted. In effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or separation pay if reinstatement is no longer viable, and backwages.

The normal consequences of respondents’ illegal dismissal, then, are reinstatement without loss of seniority rights, and payment of backwages computed from the time compensation was withheld up to the date of actual reinstatement. Where reinstatement is no longer viable as an option, separation pay equivalent to one (1) month salary for every year of service should be awarded as an alternative. The payment of separation pay is in addition to payment of backwages. x x x

Velasco v. National Labor Relations Commission emphasizes:

The accepted doctrine is that separation pay may avail in lieu of reinstatement if reinstatement is no longer practical or in the best interest of the parties. Separation pay in lieu of reinstatement may likewise be awarded if the employee decides not to be reinstated. (emphasis in the original; italics supplied)

Under the doctrine of strained relations, the payment of separation pay is considered an acceptable alternative to reinstatement when the latter option is no longer desirable or viable. On one hand, such payment liberates the employee from what could be a highly oppressive work environment. On the other hand, it releases the employer from the grossly unpalatable obligation of maintaining in its employ a worker it could no longer trust.

Strained relations must be demonstrated as a fact, however, to be adequately supported by evidence — substantial evidence to show that the relationship between the employer and the employee is indeed strained as a necessary consequence of the judicial controversy.

In the present case, the Labor Arbiter found that actual animosity existed between petitioner Azul and respondent as a result of the filing of the illegal dismissal case. Such finding, especially when affirmed by the appellate court as in the case at bar, is binding upon the Court, consistent with the prevailing rules that this Court will not try facts anew and that findings of facts of quasi-judicial bodies are accorded great respect, even finality. (Emphasis supplied.)

As the CA correctly observed, “To reinstate petitioner [Aliling] would only create an atmosphere of antagonism and distrust, more so that he had only a short stint with respondent company.”[42] The Court need not belabor the fact that the patent animosity that had developed between employer and employee generated what may be considered as the arbitrary dismissal of the petitioner.  

Following the pronouncements of this Court Sagales v. Rustan’s Commercial Corporation,[43] the computation of separation pay in lieu of reinstatement includes the period for which backwages were awarded:

Thus, in lieu of reinstatement, it is but proper to award petitioner separation pay computed at one-month salary for every year of service, a fraction of at least six (6) months considered as one whole year. In the computation of separation pay, the period where backwages are awarded must be included. (Emphasis supplied.)

Thus, Aliling is entitled to both backwages and separation pay (in lieu of reinstatement) in the amount of one (1) month’s salary for every year of service, that is, from June 11, 2004 (date of employment contract) until the finality of this decision with a fraction of a year of at least six (6) months to be considered as one (1) whole year. As determined by the labor arbiter, the basis for the computation of backwages and separation pay will be Aliling’s monthly salary at PhP 17,300.

Finally, Aliling is entitled to an award of PhP 30,000 as nominal damages in consonance with prevailing jurisprudence[44] for violation of due process.

x x x."

Due process requirements in dismissing a worker. - G.R. No. 185829

G.R. No. 185829

"x x x.

 

Aliling’s right to procedural due process was violated

As earlier stated, to effect a legal dismissal, the employer must show not only a valid ground therefor, but also that procedural due process has properly been observed. When the Labor Code speaks of procedural due process, the reference is usually to the two (2)-written notice rule envisaged in Section 2 (III), Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code, which provides:

Section 2. Standard of due process: requirements of notice. — In all cases of termination of employment, the following standards of due process shall be substantially observed.

I. For termination of employment based on just causes as defined in Article 282 of the Code:

(a) A written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side;

(b) A hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him; and

(c) A written notice [of] termination served on the employee indicating that upon due consideration of all the circumstance, grounds have been established to justify his termination.

In case of termination, the foregoing notices shall be served on the employee’s last known address.

MGG Marine Services, Inc. v. NLRC[38] tersely described the mechanics of what may be considered a two-part due process requirement which includes the two-notice rule, “x x x one, of the intention to dismiss, indicating therein his acts or omissions complained against, and two, notice of the decision to dismiss; and an opportunity to answer and rebut the charges against him, in between such notices.”

            King of Kings Transport, Inc. v. Mamac[39] expounded on this procedural requirement in this manner:

(1)  The first written notice to be served on the employees should contain the specific causes or grounds for termination against them, and a directive that the employees are given the opportunity to submit their written explanation within a reasonable period. “Reasonable opportunity” under the Omnibus Rules means every kind of assistance that management must accord to the employees to enable them to prepare adequately for their defense. This should be construed as a period of at least five calendar days from receipt of the notice xxxx Moreover, in order to enable the employees to intelligently prepare their explanation and defenses, the notice should contain a detailed narration of the facts and circumstances that will serve as basis for the charge against the employees. A general description of the charge will not suffice.Lastly, the notice should specifically mention which company rules, if any, are violated and/or which among the grounds under Art. 288 [of the Labor Code] is being charged against the employees

(2) After serving the first notice, the employees should schedule and conduct ahearing or conference wherein the employees will be given the opportunity to (1) explain and clarify their defenses to the charge against them; (2) present evidence in support of their defenses; and (3) rebut the evidence presented against them by the management. During the hearing or conference, the employees are given the chance to defend themselves personally, with the assistance of a representative or counsel of their choice x x x.

(3) After determining that termination is justified, the employer shall serve the employees a written notice of termination indicating that: (1) all the circumstances involving the charge against the employees have been considered; and (2) grounds have been established to justify the severance of their employment.  (Emphasis in the original.)

Here, the first and second notice requirements have not been properly observed, thus tainting petitioner’s dismissal with illegality.

The adverted memo dated September 20, 2004 of WWWEC supposedly informing Aliling of the likelihood of his termination and directing him to account for his failure to meet the expected job performance would have had constituted the “charge sheet,” sufficient to answer for the first notice requirement, but for the fact that there is no proof such letter had been sent to and received by him. In fact, in his December 13, 2004 Complainant’s Reply Affidavit, Aliling goes on to tag such letter/memorandum as fabrication. WWWEC did not adduce proof to show that a copy of the letter was duly served upon Aliling. Clearly enough, WWWEC did not comply with the first notice requirement.

Neither was there compliance with the imperatives of a hearing or conference. The Court need not dwell at length on this particular breach of the due procedural requirement. Suffice it to point out that the record is devoid of any showing of a hearing or conference having been conducted. On the contrary, in its October 1, 2004 letter to Aliling, or barely five (5) days after it served the notice of termination, WWWEC acknowledged that it was still evaluating his case. And the written notice of termination itself did not indicate all the circumstances involving the charge to justify severance of employment.

x x x."

Failure to meet sales quotas is valid ground to dismiss a worker but employer must exercise its right in good faith. - G.R. No. 185829

G.R. No. 185829

"x x x.

Petitioner was illegally dismissed

To justify fully the dismissal of an employee, the employer must, as a rule, prove that the dismissal was for a just cause and that the employee was afforded due process prior to dismissal. As a complementary principle, the employer has the onus of proving with clear, accurate, consistent, and convincing evidence the validity of the dismissal.[34]

WWWEC had failed to discharge its twin burden in the instant case.

First off, the attendant circumstances in the instant case aptly show that the issue of petitioner’s alleged failure to achieve his quota, as a ground for terminating employment, strikes the Court as a mere afterthought on the part of WWWEC. Consider: Lariosa’s letter of September 25, 2004 already betrayed management’s intention to dismiss the petitioner for alleged unauthorized absences. Aliling was in fact made to explain and he did so satisfactorily. But, lo and behold, WWWEC nonetheless proceeded with its plan to dismiss the petitioner for non-satisfactory performance, although the corresponding termination letter dated October 6, 2004 did not even specifically state Aliling’s “non-satisfactory performance,” or that Aliling’s termination was by reason of his failure to achieve his set quota.

What WWWEC considered as the evidence purportedly showing it gave Aliling the chance to explain his inability to reach his quota was a purported September 20, 2004 memo of San Mateo addressed to the latter. However, Aliling denies having received such letter and WWWEC has failed to refute his contention of non-receipt. In net effect, WWWEC was at a loss to explain the exact just reason for dismissing Aliling.

At any event, assuming for argument that the petitioner indeed failed to achieve his sales quota, his termination from employment on that ground would still be unjustified.

 Article 282 of the Labor Code considers any of the following acts or omission on the part of the employee as just cause or ground for terminating employment:

(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;

(b) Gross and habitual neglect by the employee of his duties;

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

(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and

(e) Other causes analogous to the foregoing. (Emphasis supplied)

In Lim v. National Labor Relations Commission,[35] the Court considered inefficiency as an analogous just cause for termination of employment under Article 282 of the Labor Code:

We cannot but agree with PEPSI that “gross inefficiency” falls within the purview of “other causes analogous to the foregoing,” this constitutes, therefore, just cause to terminate an employee under Article 282 of the Labor Code. One is analogous to another if it is susceptible of comparison with the latter either in general or in some specific detail; or has a close relationship with the latter. “Gross inefficiency” is closely related to “gross neglect,” for both involve specific acts of omission on the part of the employee resulting in damage to the employer or to his business. In Buiser vs. Leogardo, this Court ruled that failure to observed prescribed standards to inefficiency may constitute just cause for dismissal. (Emphasis supplied.)

It did so anew in Leonardo v. National Labor Relations Commission[36] on the following rationale:

An employer is entitled to impose productivity standards for its workers, and in fact, non-compliance may be visited with a penalty even more severe than demotion. Thus,

[t]he practice of a company in laying off workers because they failed to make the work quota has been recognized in this jurisdiction. (Philippine American Embroideries vs. Embroidery and Garment Workers, 26 SCRA 634, 639). In the case at bar, the petitioners' failure to meet the sales quota assigned to each of them constitute a just cause of their dismissal, regardless of the permanent or probationary status of their employment. Failure to observe prescribed standards of work, or to fulfill reasonable work assignmentsdue to inefficiency may constitute just cause for dismissal. Such inefficiency is understood to mean failure to attain work goals or work quotas, either by failing to complete the same within the allotted reasonable period, or by producing unsatisfactory results. This management prerogative of requiring standards may be availed of so long as they are exercised in good faith for the advancement of the employer's interest. (Emphasis supplied.)

In fine, an employee’s failure to meet sales or work quotas falls under the concept of gross inefficiency, which in turn is analogous to gross neglect of duty that is a just cause for dismissal under Article 282 of the Code. However, in order for the quota imposed to be considered a valid productivity standard and thereby validate a dismissal, management’s prerogative of fixing the quota must be exercised in good faith for the advancement of its interest. The duty to prove good faith, however, rests with WWWEC as part of its burden to show that the dismissal was for a just cause. WWWEC must show that such quota was imposed in good faith. This WWWEC failed to do, perceptibly because it could not. The fact of the matter is that the alleged imposition of the quota was a desperate attempt to lend a semblance of validity to Aliling’s illegal dismissal. It must be stressed that even WWWEC’s sales manager, Eve Amador (Amador), in an internal e-mail to San Mateo, hedged on whether petitioner performed below or above expectation:

Could not quantify level of performance as he as was tasked to handle a new product (GX). Revenue report is not yet administered by IT on a month-to-month basis. Moreover, this in a way is an experimental activity. Practically you have a close monitoring with Armand with regards to his performance. Your assessment of him would be more accurate.

Being an experimental activity and having been launched for the first time, the sales of GX services could not be reasonably quantified. This would explain why Amador implied in her email that other bases besides sales figures will be used to determine Aliling’s performance. And yet, despite such a neutral observation, Aliling was still dismissed for his dismal sales of GX services. In any event, WWWEC failed to demonstrate the reasonableness and the bona fides on the quota imposition.

Employees must be reminded that while probationary employees do not enjoy permanent status, they enjoy the constitutional protection of security of tenure. They can only be terminated for cause or when they otherwise fail to meet the reasonable standards made known to them by the employer at the time of their engagement.[37]Respondent WWWEC miserably failed to prove the termination of petitioner was for a just cause nor was there substantial evidence to demonstrate the standards were made known to the latter at the time of his engagement. Hence, petitioner’s right to security of tenure was breached.

x x x."

Law on probationary employment. - G.R. No. 185829

G.R. No. 185829

"x x x.

 

The issue of whether or not petitioner was, during the period material, a probationary or regular employee is of pivotal import. Its resolution is doubtless necessary at arriving at a fair and just disposition of the controversy.

The Labor Arbiter cryptically held in his decision dated April 25, 2006 that:

Be that as it may, there appears no showing that indeed the said September 20, 2004 Memorandum addressed to complainant was received by him. Moreover, complainant’s tasked where he was assigned was a new developed service. In this regard, it is noted:

“Due process dictates that an employee be apprised beforehand of the conditions of his employment and of the terms of advancement therein. Precisely, implicit in Article 281 of the Labor Code is the requirement that reasonable standards be previously made known by the employer to the employee at the time of his engagement (Ibid, citing Sameer Overseas Placement Agency, Inc. vs. NLRC, G.R. No. 132564, October 20, 1999).[28]

From our review, it appears that the labor arbiter, and later the NLRC, considered Aliling a probationary employee despite finding that he was not informed of the reasonable standards by which his probationary employment was to be judged.

The CA, on the other hand, citing Cielo v. National Labor Relations Commission,[29] ruled that petitioner was a regular employee from the outset inasmuch as he was not informed of the standards by which his probationary employment would be measured.  The CA wrote:

Petitioner was regularized from the time of the execution of the employment contract on June 11, 2004, although respondent company had arbitrarily shortened his tenure. As pointed out, respondent company did not make known the reasonable standards under which he will qualify as a regular employee at the time of his engagement. Hence, he was deemed to have been hired from day one as a regular employee.[30] (Emphasis supplied.)

WWWEC, however, excepts on the argument that it put Aliling on notice that he would be evaluated on the 3^rd and 5^th months of his probationary employment. To WWWEC, its efforts translate to sufficient compliance with the requirement that a probationary worker be apprised of the reasonable standards for his regularization. WWWEC invokes the ensuing holding in Alcira v. National Labor Relations Commission[31] to support its case:

Conversely, an employer is deemed to substantially comply with the rule on notification of standards if he apprises the employee that he will be subjected to a performance evaluation on a particular date after his hiring. We agree with the labor arbiter when he ruled that:

In the instant case, petitioner cannot successfully say that he was never informed by private respondent of the standards that he must satisfy in order to be converted into regular status. This rans (sic) counter to the agreement between the parties that after five months of service the petitioner’s performance would be evaluated. It is only but natural that the evaluation should be made vis-à-vis the performance standards for the job. Private respondent Trifona Mamaradlo speaks of such standard in her affidavit referring to the fact that petitioner did not perform well in his assigned work and his attitude was below par compared to the company’s standard required of him. (Emphasis supplied.)

WWWEC’s contention is untenable.

 Alcira is cast under a different factual setting.  There, the labor arbiter, the NLRC, the CA, and even finally this Court were one in their findings that the employee concerned knew, having been duly informed during his engagement, of the standards for becoming a regular employee. This is in stark contrast to the instant case where the element of being informed of the regularizing standards does not obtain. As such, Alciracannot be made to apply to the instant case.

To note, the June 2, 2004 letter-offer itself states that the regularization standards or the performance norms to be used are still to be agreed upon by Aliling and his supervisor. WWWEC has failed to prove that an agreement as regards thereto has been reached. Clearly then, there were actually no performance standards to speak of. And lest it be overlooked, Aliling was assigned to GX trucking sales, an activity entirely different to the Seafreight Sales he was originally hired and trained for. Thus, at the time of his engagement, the standards relative to his assignment with GX sales could not have plausibly been communicated to him as he was under Seafreight Sales. Even for this reason alone, the conclusion reached in Alcira is of little relevant to the instant case.

Based on the facts established in this case in light of extant jurisprudence, the CA’s holding as to the kind of employment petitioner enjoyed is correct. So was the NLRC ruling, affirmatory of that of the labor arbiter. In the final analysis, one common thread runs through the holding of the labor arbiter, the NLRC and the CA, i.e., petitioner Aliling, albeit hired from management’s standpoint as a probationary employee, was deemed a regular employee by force of the following self-explanatory provisions:  

Article 281 of the Labor Code

ART. 281. Probationary employment. - Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee. (Emphasis supplied.)

Section 6(d) of the Implementing Rules of Book VI, Rule VIII-A of the Labor Code

Sec. 6. Probationary employment. – There is probationary employment where the employee, upon his engagement, is made to undergo a trial period where the employee determines his fitness to qualify for regular employment, based on reasonable standards made known to him at the time of engagement.

Probationary employment shall be governed by the following rules:

x x x x

(d) In all cases of probationary employment, the employer shall make knownto the employee the standards under which he will qualify as a regular employee at the time of his engagement.  Where no standards are made known to the employee at that time, he shall be deemed a regular employee. (Emphasis supplied.)

To repeat, the labor arbiter, NLRC and the CA are agreed, on the basis of documentary evidence adduced, that respondent WWWEC did not inform petitioner Aliling of the reasonable standards by which his probation would be measured against at the time of his engagement. The Court is loathed to interfere with this factual determination. As We have held:

Settled is the rule that the findings of the Labor Arbiter, when affirmed by the NLRC and the Court of Appeals, are binding on the Supreme Court, unless patently erroneous. It is not the function of the Supreme Court to analyze or weigh all over again the evidence already considered in the proceedings below. The jurisdiction of this Court in a petition for review on certiorari is limited to reviewing only errors of law, not of fact, unless the factual findings being assailed are not supported by evidence on record or the impugned judgment is based on a misapprehension of facts.[32]

 The more recent Peñafrancia Tours and Travel Transport, Inc., v. Sarmiento[33]has reaffirmed the above ruling, to wit:

Finally, the CA affirmed the ruling of the NLRC and adopted as its own the latter's factual findings. Long-established is the doctrine that findings of fact of quasi-judicial bodies x x x are accorded respect, even finality, if supported by substantial evidence. When passed upon and upheld by the CA, they are binding and conclusive upon this Court and will not normally be disturbed. Though this doctrine is not without exceptions, the Court finds that none are applicable to the present case.

WWWEC also cannot validly argue that “the factual findings being assailed are not supported by evidence on record or the impugned judgment is based on a misapprehension of facts.” Its very own letter-offer of employment argues against its above posture. Excerpts of the letter-offer:

Additionally, upon the effectivity of your probation, you and your immediate superior are required to jointly define your objectives compared with the job requirements of the position. Based on the pre-agreed objectives, your performance shall be reviewed on the 3rd month to assess your competence and work attitude. The 5th month Performance Appraisal shall be the basis in elevating or confirming your employment status from Probationary to Regular.

Failure to meet the job requirements during the probation stage means that your services may be terminated without prior notice and without recourse to separation pay. (Emphasis supplied.)

Respondents further allege that San Mateo’s email dated July 16, 2004 shows that the standards for his regularization were made known to petitioner Aliling at the time of his engagement. To recall, in that email message, San Mateo reminded Aliling of the sales quota he ought to meet as a condition for his continued employment, i.e., that the GX trucks should already be 80% full by August 5, 2004. Contrary to respondents’ contention, San Mateo’s email cannot support their allegation on Aliling being informed of the standards for his continued employment, such as the sales quota, at the time of his engagement. As it were, the email message was sent to Aliling more than a month after he signed his employment contract with WWWEC. The aforequoted Section 6 of the Implementing Rules of Book VI, Rule VIII-A of the Code specifically requires the employer to inform the probationary employee of such reasonable standards at the time of his engagement, not at any time later; else, the latter shall be considered a regular employee. Thus, pursuant to the explicit provision of Article 281 of the Labor Code, Section 6(d) of the Implementing Rules of Book VI, Rule VIII-A of the Labor Code and settled jurisprudence, petitioner Aliling is deemed a regular employee as of June 11, 2004, the date of his employment contract.

 x x x."

Qualified theft; elements. - G.R. No. 193250

G.R. No. 193250

"x x x.

While discretionary authority to determine probable cause in a preliminary investigation to ascertain sufficient ground for the filing of an information rests with the executive branch,[29] such authority is far from absolute. It may be subject to review when it has been clearly used with grave abuse of discretion.[30] And indeed, grave abuse of discretion attended the decision to drop the charges against Tria as there was more than probable cause to proceed against him for qualified theft.

          It must be emphasized at the outset that what is necessary for the filing of a criminal information is not proof beyond reasonable doubt that the person accused is guilty of the acts imputed on him, but only that there is probable cause to believe that he is guilty of the crime charged.

Probable cause, for purposes of filing a criminal information, are such facts as are sufficient to engender a well-founded belief that a crime has been committed and that the accused is probably guilty thereof.[31] It is the existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within the knowledge of the prosecutor, that the person charged was guilty of the crime for which he is to be prosecuted. [32]  A finding of probable cause needs only to rest on evidence showing that, more likely than not, a crime has been committed and that it was committed by the accused.[33]

The acts of Tria and the relevant circumstances that led to the encashment of the check provide more than sufficient basis for the finding of probable cause to file an information against him and John Doe/Atty. Reyes for qualified theft. In fact, it is easy to infer from the factual milieu of the instant case the existence of all the elements necessary for the prosecution of the crime of qualified theft.

As defined, theft is committed by any person who, with intent to gain, but without violence against, or intimidation of persons nor force upon things, shall take the personal property of another without the latter’s consent.[34] If committed with grave abuse of confidence, the crime of theft becomes qualified.[35] In précis, qualified theft punishable under Article 310 in relation to Articles 308 and 309 of the Revised Penal Code (RPC) is committed when the following elements are present:

1.       Taking of personal property;

2.       That the said property belongs to another;

3.       That the said taking be done with intent to gain;

4.       That it be done without the owner’s consent;

5.       That it be accomplished without the use of violence or intimidation against persons, nor of force upon things; and

6.       That it be done with grave abuse of confidence.

In the instant case, the first and second elements are unquestionably present. The money involved is the personal property of Tria’s employer, PNB.  Tria’s argument that the amount does not belong to PNB even if it is the depositary bank is erroneous since it is well established that a bank acquires ownership of the money deposited by its clients.[36] 

          The third element, intent to gain or animus lucrandi, is an internal act that is presumed from the unlawful taking by the offender of the thing subject of asportation.[37] This element is immediately discernable from the circumstances narrated in the affidavits submitted by PNB’s employees. In particular, it is plain from Tria’s misrepresentation that the person he called Atty. Reyes was a valued client of PNB-MWSS who was authorized to encash the manager’s check and his act of revising his functions as stated in the Minutes of the Meeting referred to by Veniegas to make it appear that he had been tasked with “accompanying valued client/clients to QC Circle Branch for encashment of MCs merely to identify the bearer/payee and confirmation of the MC whenever we are short in cash.”

          The fifth element is undisputed, while the last element, that the taking be done with grave abuse of confidence, is sufficiently shown by the affidavits of PNB and Tria’s own admission of the position he held at the Bank. A bank’s employees are entrusted with the possession of money of the bank due to the confidence reposed in them and as such they occupy positions of confidence.[38]

It is the existence of the fourth element––the taking be done without the owner’s consent––that is the crux of contention. While the appellate court, together with the DOJ and OCP, maintains the negative and equates the cumulative acts of the other PNB employees as the consent of PNB in the issuance and encashment of the manager’s check, this Court cannot find itself to sustain such opinion.

On the contrary, the facts portray the stark absence of consent on the part of PNB for the issuance of manager’s check payable to “Atty. Rodrigo A. Reyes” and its felonious encashment by John Doe/Atty. Reyes in complicity with Tria.

Tria, it must be reiterated, was PNB’s bank manager for its MWSS branch. The check in question was a manager’s check. A manager’s check is one drawn by a bank’s manager, Tria in this case, upon the bank itself. We have held that it stands on the same footing as a certified check, which is deemed to have been accepted by the bank that certified it, as it is an order of the bank to pay, drawn upon itself, committing in effect its total resources, integrity and honor behind its issuance. By its peculiar character and general use in commerce, a manager’s check is regarded substantially to be as good as the money it represents.[39] In fact, it is obvious from the PNB affidavits that the MWSS C/A was deducted upon the issuance of the manager’s check and not upon its encashment. Indeed, as the bank’s own check, a manager’s check becomes the primary obligation of the bank and is accepted in advance by the act of its issuance.[40]

Taking this fact into consideration, it cannot be denied that the wheels of the felony started turning days before the misrepresentations made by Tria at PNB-Circle. And the encashment was a mere culmination of the crime that was commenced in PNB-MWSS.

The felony of qualified theft started with the use of the now missing falsified letter-request and supporting documents for the issuance of the manager’s check and the re-activation of the MWSS C/A. It was the pretense of an authority from MWSS that deprived PNB the liberty to either withhold or freely give its consent for the valid reactivation of the account and issuance of the check. Quoting from Black v. State,[41] this Court held in Gaviola v. People[42] that such pretense does not validate a taking:  

In all cases where one in good faith takes another’s property under claim of title in himself, he is exempt from the charge of larceny, however puerile or mistaken the claim may in fact be. And the same is true where the taking is on behalf of another, believed to be the true owner. Still, if the claim is dishonest, a mere pretense, it will not protect the taker.

In more conventional words, this Court sustained the finding of qualified theft inPeople v. Salonga,[43] where the taking was done through the issuance of a check by the very person responsible for, and in custody of, the said check, viz:

The crime charged is Qualified Theft through Falsification of Commercial Document. The information alleged that the accused took P36,480.30 with grave abuse of confidence by forging the signature of officers authorized to sign the subject check and had the check deposited in the account of Firebrake Sales and Services, a fictitious payee without any legitimate transaction with Metrobank. Theft is qualified if it is committed with grave abuse of confidence. The fact that accused-appellant as assistant cashier of Metrobank had custody of the aforesaid checks and had access not only in the preparation but also in the release of Metrobank cashier’s checks suffices to designate the crime as qualified theft as he gravely abused the confidence reposed in him by the bank as assistant cashier. x x x (Emphasis supplied.)

Similar to the bank involved in Salonga, PNB was deprived of the discretion to withhold its consent since, as the circumstances establish, the very person responsible for the custody and the issuance of the check is the one guilty for its felonious issuance and encashment, its former branch manager Tria.

Indeed, the pretense made in PNB-MWSS that led to the issuance of the Manager’s Check cannot be imputed on anyone other than Tria. His role as the branch manager of PNB-MWSS who had the responsibility over the functions of the employees of PNB-MWSS cannot be overlooked. As branch manager, Tria signs manager’s checks.  He serves as the last safeguard against any pretense resorted to for an illicit claim over the bank’s money. The acts of the other bank officials in the MWSS branch in processing the manager’s checks pass through the supervision and approval of Tria. Thus, the processing and approval of the check are the responsibility of Tria.

As such, Tria is duty-bound to verify from the bank’s client any supposed authority given for the issuance of a manager’s check. He was, therefore, duty-bound to confirm with MWSS whether the letter-authorization for the deduction of P5.2 million from the MWSS C/A is genuine, legal and binding. Tria is required to exercise the highest degree of care since the degree of diligence required of banks is more than that of a good father of a family where the fiduciary nature of their relationship with their depositors is concerned.[44] This degree of diligence was wanting in Tria’s failure to determine the veracity of said letter-authority considering that the amount to be deducted is large, with the withdrawal of almost the entire amount of the deposit leaving only less than PhP 200, more so when the account has been dormant since April 16, 2003.

 As standard banking practice intended precisely to prevent unauthorized and fraudulent withdrawals, a bank manager verifies with the client-depositor to authenticate and confirm that he/she has validly authorized such withdrawal.  Such failure of Tria as bank manager to verify the legitimacy of the requested withdrawal lends credence to the accusation that he colluded with Atty. Reyes to feloniously take money from PNB, and his complicity includes depriving the bank of its opportunity to deny and withhold the consent for the necessary issuance of Manager’s Check No. 1165848. It cannot, therefore, be gainsaid that PNB did not consent to the issuance of the check and its eventual encashment—which both constitute the taking of personal property—as respondents had made sure that the bank was rendered inutile and incapable to give its consent. The fourth element of the crime clearly exists.

Furthermore, a branch manager normally stays at his branch to perform his functions and duties in such position in said branch except on official business as prescribed by the bank.  Certainly, it is not one of the duties of a branch manager to leave his office and personally accompany a payee of a manager’s check it issued to another branch to encash said check.   It is, therefore, unusual and highly suspicious for Tria to leave his office located in Balara, Diliman, Quezon City and travel to Quezon Avenue where the PNB-Circle is located to identify a fictitious payee and ensure the encashment of the check. 

Tria could just have waited for a call from the branch manager of the PNB Quezon City Circle Branch to verify the authenticity of said check.  Such extra effort and unexplained gesture on the part of Tria to provide assistance to Atty. Reyes, a fake lawyer, to ensure the encashment of the check leaves one to believe that he is in cahoots with the impostor.

What is more, it is curious that Tria accompanied John Doe/Atty. Reyes to encash the manager’s check in another branch under the pretext that his own branch is short of cash when in fact more than PhP 8 million has just been delivered to PNB-MWSS. Such misrepresentation can only be considered as an attempt to cover the crime and pass the blame to other PNB employees, as in fact the CA ruled that Flandez is to blame. This attempt is further reinforced by the curious case of the missing fictitious letter-request and its supporting documents, which were last seen in the vault of PNB-MWSS which can be accessed by Tria. Furthermore, the allegation of Veniegas that Tria unilaterally and secretly revised the bank’s Minutes of the Meeting to reflect that he had “no approval authority” beyond opening accounts but was specifically requested by the bank to “assist valued clients” in encashing checks at the Quezon City Circle Branch shows an ingenious ploy by Tria to cover his tracks upon the eventual discovery of the theft and is in contravention of the General Banking Law of 2000.[45]

Nonetheless, nothing is more damning than the fact that Tria vouched for the identity of John Doe/Atty. Reyes, even claimed that Atty. Reyes is a valued client of PNB-MWSS, affixed his signature at the back portion of the check to guarantee that Atty. Reyes is the true and legal payee, and ultimately guaranteed that the Manager’s check is legally effective and valid and everything is aboveboard.  PNB-Circle could have verified from MWSS if the deduction is authorized especially considering that the money will be deducted from an account of a government corporation.  The identification by Tria of Atty. Reyes as payee precluded and preempted the bank officials from verifying the transaction from MWSS.  Thus, the identification made by Tria impliedly warranted to the PNB-Circle that said Manager’s check was validly issued with the consent of PNB, and that the encashment is legal and warranted.

It must also be noted that Tria likewise made representations to the PNB-Circle that the Manager’s check is legal and valid as evidenced by the annotation at the dorsal portion of the check “ok for payment per confirmation and approval of PNB MWSS.” The act of Tria in confirming and approving the encashment of the check by Reyes is the pretense of the consent given to him by PNB to authorize the issuance of the manager’s check that resulted in the taking of PhP 5.2 million from PNB. Tria must, therefore, be prosecuted and tried before the courts of justice. 

         

 x x x."