24/7 CUSTOMER PHILIPPINES, INC., AND/OR LIEZL P. LONGALONG, HAROLD JAY R. GUTIERREZ, LARIZZA YRISH V. RAMOS, CHERYL M. CORONEL, PETITIONERS, VS. NATIONAL LABOR RELATIONS COMMISS…
MACALINO, J:
of the National Labor Relations Commission (“NLRC”) in NLRC LAC No.
09-002736-12 [NLRC NCR Case No. 09-13688-11]. The NLRC Decision, which
reversed and set aside the February 29, 2012 decision[4] of the labor arbiter, disposes as follows:
“WHEREFORE, premises considered, the Appeal is GRANTED and the February 2[9],
2012 Decision is hereby REVERSED and SET ASIDE and a new one entered
declaring complainant’s dismissal as illegal and ordering respondents to
pay him separation pay computed at one month and full backwages from
the time he was illegally dismissed on August 30, 2011. Both awards
should be computed up to the finality of this Decision. Further,
respondents are ordered to pay complainant proportionate 13th month pay and service incentive leave pay.All other claims are dismissed for lack of basis.
SO ORDERED.”[5]
Culled from the records are the following facts:
Private respondent Benjamin B. Padilla was hired by petitioner
corporation on April 26, 2010 as Technical Support Representative.[6] On July 27, 2011, petitioner corporation sent Benjamin a Show Cause Memo (“SCM”)[7]
calling his attention regarding his half-day no call no show (“NCNS”)
on July 15, 2011. Benjamin did not submit any written explanation
regarding his first NCNS and he was thus given his first written warning
on August 24, 2011.[8] On the same date, Benjamin was again issued a Show Cause Memo for his second NCNS on August 22, 2011.[9] This time, Benjamin explained in writing that his absence was due to a severe toothache[10] caused by “irreversible pulpitis” which needs surgical removal of the tooth affected, as shown in the dental certificate.[11] Despite his explanation, Benjamin was given a final warning also on August 24, 2011.[12] On August 25, 2011, Benjamin received his third SCM for his NCNS on August 23, 2011.[13]
He explained that he was absent on the said date because of heavy rains
and floods in Parañaque where he lives. He further said that around
4:40 in the morning, he sent text messages to his supervisor informing
her of his absence. He no longer called her as he did not want to
disturb her rest because her shift starts at 10:00 A.M.[14]
On August 30, 2011, Benjamin received a Termination Letter stating
that, “As stipulated in The Code Section 1 Neglect of Duties Item B On
Attendance Unauthorized Absence is a moderate violation and subject to
Termination on the 3rd offense.”[15]
Benjamin filed a complaint for illegal dismissal which was dismissed by
the labor arbiter. On appeal, the NLRC reversed the ruling of the labor
arbiter and issued the assailed decision. Petitioners’ motion for
reconsideration having been denied by Resolution of March 27, 2013, they
filed the present petition based on the following grounds:
“I
The Honorable NLRC committed grave abuse of discretion
when it disregarded substantial evidence on record, as well as the Labor
Arbiter’s findings in his Decision, that the Private Respondent was
dismissed for just cause.II
The Honorable NLRC committed grave abuse of discretion in
disregarding 24/7’s evidence about the reasonableness of its attendance
policy, in violation of its management prerogative.III
The Honorable NLRC committed grave abuse of discretion in awarding separation pay and backwages to the Private Respondent.
IV
The Honorable NLRC committed grave abuse of discretion in not awarding damages and attorney’s fees to Petitioners.”[16]
Petitioners assert that Benjamin was validly dismissed because of
his repeated violation of the reasonable company rules against
unauthorized absences. They point out that Benjamin failed to call his
supervisor and ask for permission before not reporting for work. They
argue that his absences and tardiness connote habitual neglect of duty.
They dismiss his reasons for being absent as absurd and flimsy. They
argue that a toothache and massive flooding cannot prevent one from
making a call. Petitioners fault the NLRC for basing its decision on
text messages which they insist are unsubstantiated. They further
question the NLRC in ruling that the Code of Conduct was not presented
in evidence when its pertinent provision was stated in the affidavit of
Darwin Baetiong, petitioner corporation’s Employee Services Manager, and
in the Employment Contract, paragraph 16 thereof. Petitioners also
contend that the corporation merely exercised its management prerogative
and that labor laws discourage interference with an employer’s judgment
in the conduct of his business.
The petition lacks merit.
The NLRC committed no grave abuse of discretion when it ruled
that Benjamin was illegally dismissed from his employment. Benjamin is
not guilty of gross and habitual neglect of duty. Under Article 282 of
the Labor Code, neglect of duty as a ground for dismissal must be both
gross and habitual. Gross negligence implies want of care in the
performance of one’s duties. Habitual neglect imparts repeated failure
to perform one’s duties for a period of time, depending on the
circumstances.[17] Benjamin’s accumulated two-day absence cannot be considered gross and habitual neglect of duty.
Thus, the penalty of dismissal is manifestly disproportionate to the
infraction committed. While Benjamin admitted that he failed to call his
superior, he explained why he opted to merely sent text messages. These
text messages are now being contested by petitioners as contrary to
company policy and unsubstantiated but they did not deny that they
received them or that the same were shown to them as stated by Benjamin
in his August 29, 2011 letter. Indeed, Benjamin admitted that he was
aware of the petitioner corporation’s proper call in procedure but there
was no showing that he was aware of the consequences of not following
the same. As correctly noted by the NLRC, the Code of Conduct, which was
always mentioned in the SCM and even in the Termination Letter, as
basis for disciplining employees, was not presented. The affidavit of
Mr. Baetiong merely stated what the Code of Conduct provides regarding
attendance but it does not state whether Benjamin was made aware of the
same. The same is true regarding Paragraph 16 of the Employment Contract
which simply states:
“16. Termination of Employment
Your employment, which may be terminated due to valid and just cause, is governed by the following conditions:
xxx
During Employment
xxx
B. Gross inefficiency, i.e., attendance, tardiness, among others.
xxx
E. Violation of the Company Code of Conduct which includes the
Training Code of Conduct, among others. All Company training records,
documents and properties in your custody or control shall be immediately
surrendered to the Company during and at the termination of your
employment.”[18]
The document with caption, “TWC Absences & Tardiness Policy” attached in petitioners’ position paper as Annex 2,[19]
likewise does not prove that Benjamin knows that he will be meted
immediately with termination for the third offense. Benjamin has not
also been shown to be a gross liability to his employer. There is no
evidence that Benjamin’s absences “negatively affect the team’s and
program’s overall productivity.” The following findings of the NLRC
deserve affirmance:
“[Benjamin’s] employment was terminated for neglect of duties
due to unauthorized absences. He incurred two (2) half-day absences and a
one-day absence due to reasons like toothache and massive flooding. We
do not find [Benjamin’s] absences to be sufficient ground for the
termination of his employment. His accrued two-day absence is not
tantamount to gross negligence that will merit his dismissal from
service. [Petitioners] failed to sufficiently establish that such
absences resulted to a poor performance of [Benjamin’s] duties and which
eventually caused irreversible damage to the company. There was no
proof that [Benjamin] was guilty of habitual tardiness and absenteeism,
and disregard of the company policy on attendance. His total two-day
absence, which was made the basis for his dismissal, cannot be
considered a serious infraction which adversely affected the company’s
business operations.xxx. Further, the company’s Code of Conduct containing the
policy on Attendance and Tardiness was never presented in evidence.
Considering that the basis for [Benjamin’s] dismissal is his violation
of the attendance policy, [petitioners] should have submitted a copy of
said policy, with proof that it was explained to and understood by
[Benjamin]. What was placed on record is a document entitled TWC
ABSENCES AND TARDINESS POLICY (p. 50, Records), however there was no way
of determining if this loose leaf forms part of the company’s Code of
Conduct. In illegal dismissal cases, the employer must affirmatively
show adequate evidence that the dismissal was for a justifiable cause.
Under the prevailing circumstances, the dismissal meted to [Benjamin]
appears to be too harsh a penalty. It has been held that dismissal is
the ultimate penalty that can be meted to an employee and must be
moderated in accordance with the attendant circumstances. xxx.In the present case, [Benjamin] could have been penalized with
suspension instead of dismissal considering that he had no previous
derogatory record. His wrongdoings do not qualify as gross and habitual
neglect of duty warranting his dismissal from service.While it is a recognized management right to instill discipline
upon erring employees, such prerogative must not be exercised in an
arbitrary manner. Misconducts committed by an employee must be penalized
only in proportion with the factual circumstances. Even if there is an
existing agreement between an employer and employee regarding policies
on dismissal, the labor tribunals are not precluded from tempering the
strict application of these policies if such will defeat the State
policy of affording full protection to labor.”[20]
The employer’s right to conduct the affairs of its business,
according to its own discretion and judgment, is well-recognized.
However, while management has a wide latitude to conduct its own affairs
in accordance with the necessities of its business,[21]
its managerial discretion is not without limits. The exercise of
management prerogative is not absolute as it must be exercised in good
faith and with due regard to the rights of labor.[22]
The prerogative to discipline employees should at all times be
reasonable and should be tempered with compassion and understanding.
Dismissal is the ultimate penalty that can be imposed on an employee.
Where a penalty less punitive may suffice, whatever missteps may be
committed by labor ought not to be visited with a consequence so severe
for what is at stake is not merely the employee’s position but his very
livelihood and perhaps the life and subsistence of his family.[23]
WHEREFORE, the petition is DENIED.
The January 22, 2013 Decision and the March 27, 2013 Resolution of the
National Labor Relations Commission in NLRC LAC No. 09-002736-12 [NLRC
NCR Case No. 09-13688-11], are AFFIRMED.
SO ORDERED.
Villon (Chairperson) and Corales, JJ., concur.
[1] Rollo, pp. 3-37.
[2] Rollo, pp. 38-47.
[3] Rollo, pp. 64-67.
[4] Rollo, pp. 218-224.
[5] Rollo, pp. 46-47.
[6] Rollo, pp. 101-108.
[7] Rollo, p. 111.
[8] Rollo, p. 112.
[9] Rollo, p. 113.
[10] Rollo, p. 114
[11] Rollo, p. 215.
[12] Rollo, p. 115.
[13] Rollo, p. 116.
[14] Rollo, p. 117.
[15] Rollo, pp. 118-119.
[16] Rollo, pp. 12-13.
[17] Century Iron Works, Inc. and Chua v. Banas, G.R. No. 184116, June 19, 2013.
[18] Rollo, pp. 105-106.
[19] Rollo, p. 110.
[20] Rollo, pp. 44-46.
[21] Bankard, Inc.v. National Labor Relations Commission, et al., G.R. No. 171664, March 6, 2013.
[22] Royal Plant Workers Union v. Coca-Cola Bottlers Philippines, Inc.-Cebu Plant, G.R. No. 198783, April 15, 2013.
[23] Cavite Apparel, Incorporated and Timoteo v. Marquez, G.R. No. 172044, February 6, 2013.