PACIFIC PRODUCTS/FORTUNA EMPLOYEES AND WORKERS ASSOCIATION – TUPAS AND EDIPOLO TORRELINO, PETITIONERS, VS. PACIFIC PRODUCTS, INC., AND NATIONAL LABOR RELATIONS COMMISSION, RESPO…

Petitioners question the resolution dated April 19, 1979 of
respondent National Labor Relations Commission (NLRC for short) which modified
the decision of Labor Arbiter Ceferina J. Diosana in Case No. RB-IV-10722-77.  The questioned resolution in effect upheld
the dismissal of petitioner Edipolo Torrelino from his position as stock clerk in
respondent-company, but ordered the payment to him of separation pay consisting
of one-half month salary for every year of service.

It appears from the records that petitioner Edipolo
Torrelino an employee of respondent company for a
period of more than 10 years, was a stock clerk with a salary of P750.00 a
month at the time that respondent company applied for clearance to terminate
his employment effective February 23, 1977 allegedly on grounds of vending
cigarettes in the premises of the company, tampering of the company’s payroll
and collusion in illegal acts which are all in violation of company rules and
regulations.  Edipolo
Torrelino opposed the application alleging that he
had not committed the acts attributed to him and that his projected dismissal
was a scheme of the company to scuttle the union of the employees of which he
was the president.  After due hearing, the
Labor Arbiter as earlier stated rendered
a decision giving due course to the application and ordering the dismissal of Edipolo Torrelino and the payment of respondent company of separation
pay to Edipolo Torrelino.  Both parties appealed the decision to the NLRC
which upheld the same with modification, hence the present petition for certiorari,
petitioner alleging that both the Labor Arbiter and the respondent Commission
committed a grave abuse of discretion in granting the clearance application and
ordering the dismissal of the petitioner.

In his memorandum, petitioner Edipolo Torrelino submits the following:

I.   The charge against him is the first;

II.  No tampering of company payroll was committed
by him;

III. The acts committed by him do not warrant his dismissal.

Petitioner’s contentions hold water.

No less than the Labor Arbiter declared in her decision as
affirmed by the NLRC that:

“In the case of Edipolo Torrelino, the charge against him is only the first offense
committed during his long employment with respondent.” (p. 22, Rollo)

Private respondents dispute this alleging that the vending of
cigarettes by petitioner Edipolo Torrelino
had happened not only once or twice but several times within one year, in violation
of the rules of the respondent company, and punishable by discharge from
service.  Petitioner admits he was
selling cigarettes for a year or so openly inside the company premises but not
in the true sense of the word
during office hours, that the cigarettes were placed inside his drawer and
buyers got them freely from the drawer, thereafter leaving the corresponding
receipt or chit or vale inside the drawer; that he has no participation in the
preparation of the payroll as well as in effecting the deductions; that the
selling of cigarettes in the manner stated above was not unknown to the top
management people like Messrs. Villareal, Parlan, Pascual, and that none of
them ever called his attention to the fact that it was improper and not
sanctioned by the company rules and regulation; that their acquiescence in
other words was a tacit approval of the manner the cigarettes had been sold
inside the premises, hence, it could be termed as proper (p. 4 Decision, p. 18 Rollo). 
Petitioner was given notice of such violation for the first time only thru a company memorandum
dated February 8, 1977, which was followed immediately by the application of the respondent
company for clearance with the labor Arbiter to terminate petitioner’s
employment in the company.  No evidence
was shown that petitioner continued to execute the acts charged despite the
notice given to him.

As can be gathered from the
evidence, petitioner Edipolo Torrelino’s
Employment Service Record for more than 10 years was clean without any
indication that he had committed violations or abuses against the company, his
superiors, or his co-employees until his attention was called to the questioned
violation.  Petitioner Edipolo Torrelino alleges that it
was only in early 1977 that his otherwise good and harmonious relationship with
his superiors became hostile when petitioner as the union president, together
with some other union officers denounced the illegal activities of company
officers to the company
President, coupled with the union’s filing of cases against the
management.  Both the public and private
respondents claim that the act of vending cigarettes inside company premises
was of such gravity that the herein petitioner
should be held responsible for inducing his co-employees to smoke, thus
endangering lives and company property. 
Smoking within the prohibited area is however an entirely different
offense from vending cigarettes inside company premises.  There is no single evidence on the record
that an employee was ever caught or charged with smoking within the prohibited
area.  It appears now that the
respondents wanted to charge the petitioner with more serious offenses based on
mere assumptions
and remote probabilities which
in fact never occurred.

The petitioner does not deny the fact that some of the payments
of the cigarettes were collected through the payroll clerk by means of
deducting the amount due from the salaries of the employees concerned.  However, the same was effected
with the express consent of the said employees themselves.  The question now is whether the said
deduction constitutes tampering of company payroll.  We rule that tampering of company payroll is
entirely different from illegal deductions. 
Private respondents contend that the petitioner indirectly committed the
offense of tampering with the company’s payroll because the collection of the
value of the cigarettes sold on credit was done thru the use of the
payroll.  Private respondents claim that
thru the said deduction, the company was prejudiced.  However petitioner contends that this claim
was mainly based on assumptions without presenting concrete evidence to show
the extent of prejudice.  Unless there is
a clear and convincing proof of the extent of damage suffered by the company,
if there was any, it is impossible to assess the liability of the petitioner
(that is, assuming that he is guilty).

Moreover, if the deduction was indeed illegal (although there is
no concrete proof that there is a provision in the company rules and
regulations to this effect), why penalize only the petitioner and exclude the
payroll master who was
exonerated by private respondents by stating that the payroll master,
unwittingly, could have effected the wishes
of the petitioner blindly, in the belief that these deductions could be made to
appear as union dues and other assessments provided for in
the collective bargaining agreement.  Again, this
statement is a mere assumption without adequate evidence to support it.

In resume, We believe that the acts
committed by petitioner (being a first offender) do not warrant the drastic
remedy of dismissal.  As provided for in
the company rules and regulations, presented by petitioner in his memorandum, the penalty for vending,
soliciting, engaging in usurious activities is a written reprimand for the
first offense, six (6) days suspension for the second offense, and discharge
for the third offense.  Nothing specific
however is provided with respect to
deductions from salaries with the express consent of the employees.

WHEREFORE, premises
considered, the questioned resolution is hereby SET ASIDE and respondent
company Pacific Products, Inc. is hereby ORDERED to REINSTATE the herein
petitioner Edipolo Torrelino
to his former position with three (3) years’ backwages
and without loss of seniority rights
and privileges.

SO ORDERED.

Yap, (Chairman), Melencio-Herrera,
Padilla, and Sarmiento,
JJ., concur.