PREMIER PHOTO INC., COLOURS DIGITAL FOTO/KELLY S.T. UY, PETITIONERS, VS. NATIONAL LABOR RELATIONS COMMISSION – SEVENTH DIVISION, AND RIO L. MASOMBOL, RESPONDENTS.
QUIJANO-PADILLA, J.:
The antecedent facts are as follows:
Petitioner Premier Photo Inc. hired private respondent Rio Masombol as bookkeeper on February 8, 2010. In March 2012, petitioner received reports from its employees that private respondent Rio uttered irresponsible remarks against her co-employees and against the management. Hence, on March 8, 2012, petitioner issued a memorandum directing private respondent to explain this alleged misconduct of spreading derogatory remarks. The same Memorandum also contained a notice of preventive suspension.
An administrative hearing also ensued, and according to the petitioner, private respondent Rio during the hearing admitted to have told newly hired employees not to work with the petitioner since the pay is minimal; that she raised her voice at her co-employees at times; and that she resented the president Kelly S.T. Yu as the latter gave higher salary to new hires.
Petitioner, after the administrative investigation found cause to terminate private respondent, but it offered the latter a graceful exit where she would resign and the company would give her a separation pay or financial assistance. Private respondent refused the offer, hence petitioner issued a notice of termination severing private respondent’s employment with the company.
As such, private respondent filed an illegal dismissal case against the petitioner company. She alleged in her position paper that she was a victim of intrigues and gossips prevalent in the workplace.
Petitioner insisted that private respondent’s termination was due to the finding that she spread derogatory information about the company and used abusive language towards her co-employees in the workplace, which she actually admitted during the administrative hearing. It alleged that the dismissal was with a just cause pertaining to serious misconduct and that the necessary procedural due process was observed in the conduct of private respondent’s termination from employment.
On September 19, 2012, Labor Arbiter Butch Donabel Ragas-Bilocura proceeded to rule that private respondent failed to prove the fact of her dismissal because of the absence of any evidence supporting her allegation that she was dismissed. With this conclusion, the Labor Arbiter denied private respondent’s claims for separation in lieu of reinstament, backwages, 13th month pay and damages. The Labor Arbiter, however, awarded the private respondent service incentive leave pay and attorney’s fees considering that herein petitioner failed to prove that it paid the said benefit.
The decretal portion of the Labor Arbiter’s September 19, 2012 decision reads:
“WHEREFORE, foregoing premises considered, judgment is hereby rendered DISMISSING the case for illegal dismissal for lack of merit.
Respondents -PREMIERE PHOTO INC./COLOURS DIGITAL FOTO/KELLY YU are directed to pay complainant the following:
Service Incentive leave pay P2,904.46
Attorney’s fees P290.45
Or a total of Three Thousand One Hundred Ninety Four and 91/100 (P3,194.91)
Other claims are denied for lack of basis.
SO ORDERED.”[4]
Private respondent appealed the Labor Arbiter’s Decision. She argued that the fact of her dismissal was admitted by the petitioner in its position paper, thus, the Labor Arbiter erred when she did not rule on the legality or illegality of such dismissal. Private respondent also questioned the denial of her other monetary claims.
Public respondent NLRC found merit in private respondent’s appeal. It ruled that, indeed, petitioner did not deny dismissing private respondent, and what is left to be ruled is the legality thereof. After finding that the pieces of evidence presented by the petitioner were not sufficient to prove that private respondent was indeed guilty of the alleged serious misconduct, the NLRC declared that private respondent was illegally dismissed and awarded the latter backwages and separation pay. It also awarded the 13th month pay claimed by private respondent in the absence of any record presented by the petitioner showing payment of such benefit. Hence, its assailed Decision decreed:
“WHEREFORE, premises considered, the appealed decision dated 19 September 2012 is hereby REVERSED and a new one is entered finding complainant to have been illegally dismissed. Respondent Premiere Photo Inc./Colours Digital Foto is directed to pay complainant her monetary award in the aggregate amount of Two Hundred Thousand Four Hundred Nineteen Pesos and 47/100 (P200, 419.47).
SO ORDERED.”[5]
Petitioner moved for a reconsideration[6] of the foregoing assailed Decision. Petitioner alleged that it presented substantial evidence to support the validity of private respondent’s dismissal. It even attached the minutes of the administrative hearing[7] and the affidavits[8] of its employees which the public respondent found wanting. Ruling that the absence of the signature of the hearing officer in the minutes makes the same hearsay, public respondent NLRC ultimately denied petitioner’s motion for reconsideration through its assailed Resolution.[9]
Aggrieved, petitioner filed the instant petition to Us on the following ground:
“THE PUBLIC RESPONDENT SEVENTH DIVISION OF THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR IN EXCESS OF JURISDICTION IN GRANTING THE PRIVATE RESPONDENT’S APPEAL, IN DENYING THE MOTION FOR RECONSIDERATION OF THE PETITIONER AND IN FAILING TO CONSIDER THE DOCUMENTARY EVIDENCES (SIC) ATTACHED TO THE MOTION FOR RECONSIDERATION AND SUPPLEMENTAL MOTION FOR RECONSIDERATION FILED BY PETITIONERS.”[10]
The main issue to be resolved is whether private respondent Rio was dismissed for just cause. A resolution of this issue will determine whether private respondent is entitled to separation pay in lieu of reinstament and backwages. Petitioner also raises the issue whether there is valid basis to award 13th month pay despite the presence of payslips evidencing payment of such benefit.
We find the petition meritorious.
Generally, “in certiorari proceedings under Rule 65 of the Rules of Court, the CA does not assess and weigh each piece of evidence introduced in the case. But what the CA examines are the factual findings of the NLRC to determine whether or not the conclusions are supported by substantial evidence whose absence points to grave abuse of discretion amounting to lack or excess of jurisdiction.”[11]
In the case of Norkis Trading Corp. v. Buenavista et al.[12], the Supreme Court held, to wit:
“On this matter, the settled rule is that factual findings of labor officials, who are deemed to have acquired expertise in matters within their jurisdiction, are generally accorded not only respect but even finality by the courts when supported by substantial evidence, i.e., the amount of relevant evidence which a reasonable mind might accept as adequate to support a conclusion. We emphasize, nonetheless, that these findings are not infallible. When there is a showing that they were arrived at arbitrarily or in disregard of the evidence on record, they may be examined by the courts. The CA can then grant a petition for certiorari if it finds that the NLRC, in its assailed decision or resolution, has made a factual finding that is not supported by substantial evidence. It is within the jurisdiction of the CA, whose jurisdiction over labor cases has been expanded to review the findings of the NLRC.
We have thus explained in Cocomangas Hotel Beach Resort v. Visca that the CA can take cognizance of a petition for certiorari if it finds that the NLRC committed grave abuse of discretion by capriciously, whimsically, or arbitrarily disregarding evidence which are material to or decisive of the controversy. The CA cannot make this determination without looking into the evidence presented by the parties. The appellate court needs to evaluate the materiality or significance of the evidence, which are alleged to have been capriciously, whimsically, or arbitrarily disregarded by the NLRC, in relation to all other evidence on record.”[13]
Otherwise stated, re-evaluation of evidence, as a general rule, cannot be properly done in a petition for certiorari under Rule 65, EXCEPT in cases where substantial evidence to support the NLRC’s findings are wanting and where there is disregard of the evidence on record.
In the case at bar, We rule that specific evidence was disregarded by the NLRC when it ruled the absence of just cause to warrant the dismissal of private respondent. The finding of illegal dismissal by the NLRC, having overlooked specific pieces of evidence presented by the petitioner, clearly constitutes grave error on its part that warrants this Court’s judicial intervention and correction.
It is an oft-repeated rule that in labor cases, as in other administrative and quasi-judicial proceedings, the quantum of proof necessary is substantial evidence, or such amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. The burden of proof rests upon the party who asserts the affirmative of an issue.[14] As such, the duty to present substantial evidence to prove the legality of dismissal rests on the employer.
We rule that petitioner has adequately discharged its burden in proving that private respondent was legally dismissed and that she was afforded due process prior to her dismissal.
To recall, petitioner dismissed private respondent from employment for her violation of the petitioner company’s policy against “spreading derogatory information about the company, co-employees, client or other party doing business with the company”; and, “use of abusive language towards co-employees, superior while at work or within the company premises.”[15]
In proving that just cause existed when private respondent was dismissed, petitioner presented employees’ report regarding the derogatory statements uttered by private respondent against her co-employees and against the petitioner, however, these employees’ report was unsigned.[16] Aside from this report, it submitted an affidavit of the administrative hearing officer, Manolette F. E. Dinsay, who conducted the administrative hearing.[17] According to the hearing officer’s affidavit, private respondent actually admitted to have uttered negative statements against the company.
The NLRC held that these pieces of evidence are bereft of any probative value considering that the employees’ report was unsigned and that the minutes of the hearing was not actually submitted. Hence, the NLRC concluded that petitioner’s evidence cannot be given merit and sided with private respondent’s claim that she was illegally dismissed.[18]
So, the petitioner, in its motion for reconsideration[19], attached the minutes[20] of the administrative hearing, as the NLRC found the affidavit[21] of the hearing officer as unsubstantial. Petitioner also explained in such motion that the employees’ report though unsigned must be given weight considering that the affidavit of the hearing officer and the minutes of the hearing actually show that private respondent already admitted her misconduct. Then, in a supplemental motion for reconsideration[22], petitioner submitted two affidavits[23] of its employees who were one of those who actually reported the alleged misconduct of private respondent.
The minutes of the hearing and the submitted affidavits of the employees, however, were not again given weight and credence by the NLRC in its assailed Resolution. The NLRC concluded that the minutes, not being signed by the hearing officer is hearsay.
We disagree with the NLRC. It must be noted that although the minutes of the hearing was not submitted by the petitioner at first instance, it presented an affidavit of the hearing officer who actually conducted the hearing. And, when the NLRC, in its assailed Decision, stated that the affidavit is not enough, the petitioner, in its motion for reconsideration, submitted the actual minutes of the hearing. Though the minutes was not signed by the hearing officer, the same is indicated and referred to in the hearing officer’s affidavit, which validate such minutes of the hearing. Also, the private respondent could not be expected to sign such minutes because of the fact that she actually denied the conduct of the hearing itself in her position paper.
The minutes of administrative hearing, being already attached to the motion for reconsideration, should have been given consideration by the NLRC and should not have considered the same as hearsay. The minutes is not hearsay because the hearing officer himself actually executed an affidavit that referred to such administrative hearing, thus, the absence of his signature in such minutes must not be taken against the petitioner.
The minutes of administrative hearing is vital evidence which the NLRC failed to consider. The consideration of the minutes will clearly change the result of the evaluation of the instant case.
Notably, upon Our own perusal of the minutes of the hearing, We validated petitioner’s claim that private respondent indeed admitted her misconduct. The minutes reveal that private respondent actually harbored some ill feelings and frustrations with the petitioner company.[24] She affirmed that she indeed uttered some words to the effect that she was encouraging her co-employees to go and resign because of her own issues with the company.[25] She also admitted to have used abusive words against her co-employees when she gets irritated by them.[26] Apparent also from the minutes of hearing that she had frustrations with petitioner company which demoralized her, and somehow, she would tell these frustrations to her co-employees.[27]
These admissions by the private respondent are supported by the affidavits of her co-employees, Marry Loney Cabanero and Alma Arcillas, who both stated that they were discouraged by private respondent to work and urged them to look for a new job.[28]
Clearly, petitioner has proven that it had just cause to terminate private respondent from her employment. Private respondent’s own admission that she actually uttered statements encouraging her co-employees to resign, statements demeaning the reputation of the company, and abusive remarks against her co-employees proves that she has committed a serious misconduct.
Misconduct is improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error in judgment. Such misconduct, however serious, must nevertheless be in connection with the employee’s work to constitute just cause for his separation. Thus, for misconduct or improper behavior to be a just cause for dismissal, (a) it must be serious; (b) it must relate to the performance of the employee’s duties; and (c) it must show that the employee has become unfit to continue working for the employer.[29]
The act of private respondent in uttering derogatory statements against the petitioner company in front of her co-employees and uttering abusive remarks against her co-employees clearly constitute serious misconduct. Private respondent deliberately uttered the negative statements which caused demoralization to her co-employees. Verily, if private respondent had frustrations with the petitioner company, there are proper venues to air the same. Private respondent could not just air the same to her co-employees which would surely create demoralized atmosphere in the company.
Hence, We find private respondent Rio’s dismissal in order. The same was effected with a just cause and with the proper observance of due process.
Finding that there is no illegal dismissal, private respondent is, thus, not entitled to backwages, separation pay in lieu of reinstament and attorney’s fees.
Meanwhile, on the award of 13th month pay to private respondent, We rule that the NLRC erred in granting the same considering that petitioner has shown documents[30] evidencing proof of such payment.
The NLRC awarded 13th month pay to private respondent only on the basis of its unfounded conclusion that the payslips submitted by the petitioner were inconsistent considering that the amounts of the 13th month pay to private respondent for the years 2010, 2011, and 2012 were not the same. Such conclusion is patently erroneous.
The 13th-month pay mandated by Presidential Decree (P.D.) No. 851 represents an additional income based on wage but not part of the wage. It is equivalent to one-twelfth (1/12) of the total basic salary earned by an employee within a calendar year. All rank-and-file employees, regardless of their designation or employment status and irrespective of the method by which their wages are paid, are entitled to this benefit, provided that they have worked for at least one month during the calendar year. If the employee worked for only a portion of the year, the 13th-month pay is computed pro rata.[31]
Verily, the inconsistency found by the NLRC was due to the fact that private respondent’s 13th month pay for each year was based on the one-twelfth (1/12) of the total basic salary earned by her within a calendar year, and when the employee worked for only a portion of the year, she receives a 13th month pay that is computed pro rata. Hence, the amounts of 13th month pay received by private respondent would really be different.
Thus, the award of 13th month pay in private respondent’s favor is deleted.
We affirm, however, the awards of Service Incentive Leave Pay and Refund of Cash Bond. The award of Service Incentive Leave Pay in the amount of Two Thousand Nine Hundred Four and 46/100 Pesos (P2,904.46) in the judgment of the Labor Arbiter has become final upon failure of herein petitioner to appeal such grant. Meanwhile, private respondent is also entitled to the return of her cash bond amounting to Three Thousand Pesos (P3,000.00) absent any evidence showing that the same was already returned to her upon termination of her work.
WHEREFORE, the petition is GRANTED. The Decision dated May 31, 2013 and the Resolution dated August 30, 2013 of the NLRC – 7th Division in NLRC Case No. VAC-03-000107-2013 are AFFIRMED insofar far as the award of Service Incentive Leave Pay and Refund of Cash Bond are concerned, but MODIFIED to the effect that private respondent’s DISMISSAL is hereby declared VALID, and that the awards for backwages, separation pay, 13th month pay, and attorney’s fees are hereby DELETED.
SO ORDERED.
Hernando, J., Chairperson, and Azcarraga-Jacob, J., concur.
* Premier Photo Inc. operates under the business name “Colours Digital Foto”, represented by Kelly Yu.
[1] Rollo, pp. 3-19.
[2] Rollo, pp. 22-28.
[3] Rollo, pp. 71-73.
[4] Rollo, p. 160-A.
[5] Rollo, p. 27.
[6] Rollo, pp. 29-38 and pp. 63-66.
[7] Rollo, pp. 48-54.
[8] Rollo, pp. 68-69.
[9] Supra, note 3.
[10] Rollo, p. 8.
[11] Mercado v. AMA Computer College-Paranaque City, Inc., G.R. No. 183572, April 13, 2010.
[12] G.R. No. 182018, October 10, 2012.
[13] Emphasis supplied.
[14] Tenazas, et al., v. R. Villegas Taxi Transport, G.R. No. 192998, April 2, 2014.
[15] Rollo, p. 80.
[16] See NLRC assailed Decision, Rollo, p. 25.
[17] Rollo, pp. 147-148.
[18] Supra, note 15.
[19] Rollo, pp. 29-38.
[20] Rollo, pp. 48-54.
[21] Rollo, pp. 147-148.
[22] Rollo, 63-66.
[23] Rollo, pp. 68-69.
[24] Rollo, p. 52.
[25] Ibid.
[26] Rollo, p. 51 and 54.
[27] Rollo, pp. 51-52.
[28] Rollo, pp. 68-69.
[29] Nissan Motors Phils., Inc. v.Angelo, G.R. No. 164181, September 14, 2011.
[30] See payslips and letters authorizing a bank to credit amounts to certain employees, Rollo, pp. 55-62.
[31] Central Azucarera de Tarlac v. Central Azucarera de Tarlac Labor Union-NLU, G.R. No. 188949, July 26, 2010.