IMPOSING THE PENALTY OF DISMISSAL FROM THE SERVICE ON ROGELIO I. RAYALA, CHAIRMAN, NATIONAL LABOR RELATIONS COMMISSION (NLRC)

This resolves the complaint filed on November 18, 1998 by Ma.
Lourdes T. Domingo, Stenographic Reporter II of the National Labor
Relations Commission (NLRC) against Rogelio I. Rayala, Chairman of the
same Office, for sexual harassment under Republic Act (RA) No. 7877 or
the Anti-Sexual Harassment Act of 1995.

The acts constitutive of the charge are stated in complainant’s
affidavit-complaint, essentially alleging that on November 9, 1998, the
respondent held, squeezed the complainant’s shoulders, while taking
dictation, run his fingers on her neck and ear, and made sexually
offensive remarks.

The complaint was filed before the Office of the Secretary of Labor.
Acting thereon, the Secretary of Labor sought guidance from this
Office, the respondent being a presidential appointee. Upon order of
this Office, through the Executive Secretary, to initiate the necessary
investigation on the complaint and to create a committee for the
purpose, the Secretary of Labor issued on December 4, 1998
Administrative Order No. 280, Series of 1998, constituting a Committee
on Decorum and Investigation (“Committee”) pursuant to the provisions of
RA No. 7877. The Committee was directed to conduct the hearings as
expeditiously as possible and to submit a Report and Recommendation
after the conclusion of the investigation.

Upon order of the Committee, complainant appeared before it and
swore to the truth of the allegations made in her complaint. On his
part, respondent, instead of submitting his answer as directed, filed a
Counter-Affidavit Ad Cautela, stating his defenses, albeit with a reservation to question the composition of the Committee.

In an attempt to stop the proceedings of the Committee, respondent
filed before the Office of the Secretary of Labor a petition, assailing
the composition of the Committee for being contrary to law. He also
moved to dismiss the case on ground of forum shopping as complainant
appeared to have filed a similar complaint before the Civil Service
Commission (CSC). The Secretary of Labor, however, denied/dismissed said
petition and motion.

Discontented, respondent elevated the matter to the Court of Appeals
via a Petition (with Prayer for Issuance of Temporary Restraining Order
and Writ of Preliminary Injunction) but failed to obtain a favorable
judgment. After dismissal of his petition, respondent manifested his
intention not to pursue his case, hence, the proceedings before the
Committee proceeded with both parties presenting their evidence to
substantiate their respective stand.

Meanwhile, the complaint before the CSC was dismissed in an Order
dated April 16, 1999, which stated, among other things, that the CSC has
no jurisdiction over the respondent considering that he is a
presidential appointee.

Coming now to the case, the records disclose that the Committee has gathered the following:

“EVIDENCE FOR THE COMPLAINANT

Complainant alleges that in the course of her employment with
the respondent, she experienced sexual harassment detailed in paragraphs
17 and 18 of her affidavit complaint. She related these incidents to
her friends Agnes Magdaet, Maribel Fajardo-Herrera, the Acting Executive
Clerk Perlita B. Velasco and Acting Director Carolina G. de Leon of the
Management and Administrative Department (MAD).

Complainant emphasizes that, as the respondent is her immediate
superior and the highest official of the NLRC, he has moral ascendancy,
influence and authority over all the subordinate personnel of the entire
Commission.

Complainant points out that respondent’s acts of holding,
squeezing her shoulders, running his fingers on her neck and ear and
sexually offensive remarks as well as other behaviors, caused her to be
scared and agitated.

She related these acts to some NLRC officers and staff as these
were, according to her, producing unbearable and hostile environment.
Thereupon, she requested for transfer of assignment and leave of
absence.

Corroborating her on this point, witnesses Agnes Magdaet,
Maribel Fajardo-Herrera, Perlita Velasco and Carol de Leon testified.

xxx                      xxx                      xxx

As to the amount of P3,000.00, complainant claimed that
respondent gave her the money without asking for it and, returning it
was her way of saying no without offending her superior.

Further, complainant claimed that very personal questions asked
of her made her uncomfortable. The same questions were not asked from
other staff who worked under him allegedly because he knows they have
husbands, as in fact all who testified for the respondents are married.

EVIDENCE FOR THE RESPONDENT

Respondent, on the other hand, disputes complainant’s allegation
claiming that from the acts complained of, he has not demanded,
requested or otherwise required expressly or impliedly, a sexual favor
from the complainant; that he had no such intention; that it is the
complainant attributing sexual content and maliciousness to the
purported acts based on her perception; that this perception must,
according to Carl Roger’s theory, be tested against the perceptions of
other persons situated in the same environment called the “external
reality.”

To prove that it is only the complainant who gave malicious
color to certain actuations of the respondent, the latter presented his
female staff members among other witnesses who attested to his familiar
treatment, friendliness, paternalistic attitude toward his employees,
like tousling the hair, and generosity by extending financial
assistance. These witnesses claimed they have never seen any malicious
or lascivious intent in the aforesaid acts.

xxx                      xxx                      xxx

As to the matter of inquiring into complainant’s personal
circumstances, respondent explains that he was targeting her for the
sensitive position of personal secretary for which he felt he needed to
get to know complainant more.

As regards the offering of a sum of money to complainant,
respondent states that the offer came as a result of their conversation
about her family and studies and that complainant implied to him that
she needed the money for her tuition fee.

As to the incident on November 9, 1998, respondent denied making
any sexual advances, testifying that he was in angry mood when he was
giving dictation to complainant due to the failure of Region VI to
attain its “zero backlog” target.”

After carefully evaluating and weighing the evidence submitted by
both parties in support of their respective position, the Committee, on
March 2, 2000, issued a Report and Recommendation finding respondent
guilty of the offense charged, and recommending the imposition of the
penalty provided for in RA 7877 in the minimum on the strength of the
following premises:

“From the recitation of facts, the acts complained of, albeit denied by the respondent, have been sufficiently established.
The witnesses were employees of the NLRC who had everything to lose in
case their testimonies were perjured. Moreover, it had been indicated
that one of the witnesses, Acting Director Carol de Leon had been
effectively removed from her post and re-assigned to another post after
her testimony. Moreover, no less than respondent’s witness, Rizza
Ocampo, in her Karagdagang Sinumpaang Salaysay (Exh. 6) declared:

“1.     Hindi totoong sinabi sa akin ni Lourdes Domingo noong
ika-9 ng Nobyembre, 1998 ang mga salitang, “Hinawakan niya ang aking
balikat habang ito ay kanyang pinipisil, pagapang sa aking leeg.
Kiniliti niya ang tainga ko.” Ang sinabi sa akin ni Lourdes Domingo ay
“Hinawakan si Sir ang balikat ko, ang tainga ko. Nakiliti ako.” Kaya
sinabi ko sa kanya na “Ikaw naman, Lot. Hindi ka na nasanay. Ganyan lang
si Sir.” Iyon ang naging reaksiyon ko sa sinabi niya dahil natural kay
Sir na paminsan-minsan na inilalagay ang kamay niya sa balikat ng ibang
tao at walang malisya iyon.”

By what norm must the conduct complained of be measured? The
Committee resorted to AO 250, which contains in Annex A thereof
Guidelines on Proper Decorum. Using these parameters, the Committee
finds that the acts attributed to the respondent were improper. They
were unwelcomed by the complainant because they connoted a sexual
overtone.

By offering justification for such acts, by way of defense,
respondent wants to convey that nothing of the sort as perceived by the
complainant have been intended.   LibLex

At the outset, it must be stressed that RA 7877, otherwise known
as the Anti-Sexual Harassment Act of 1995, is a special law. All forms
constitutive therefor of the act are considered mala prohibita. As such,
intention is not essential for the commission of the offense. Thus, in
the Senate deliberations of the bill, Senator Lina, who was one of the
sponsor, clarified:

“The policy that we want to establish here is employer’s hands
off. Whether one is provoked, titillated or there is a stimuli, the
employer should keep his hands to himself. That is the policy that we
want to establish here.” (CP-Senate, tsp October 17, 1994)

Likewise, the defense of the respondent that this is just part
of the conspiracy to oust him was mere speculations and was not pursued.
Mere speculations and probabilities cannot substitute proof required to
establish a conspiracy. Basic is the rule that it must be proved
through clear and convincing evidence and not by mere conjectures.

Lastly, complainant’s letter requesting for transfer, coupled by
her applications for leave of absence, and ultimately filing the
instant case evidently show the hostility around her working environment
which is sought to be prevented by the law.” (Underscoring ours).

On March 3, 2000, the Secretary of Labor submitted a copy of said
Report and Recommendation to this Office, with clarification that the
recommended penalty is suspension for six (6) months and one (1) day
only, considering that it is respondent’s first offense applying the
schedule of penalties stated in Section 8 of Administrative Order (AO)
No. 250 (Rules and Regulations Implementing RA 7877 in the Department of
Labor and Employment).

Upon a careful scrutiny of the evidence on record, I concur with
the findings of the Committee as to the culpability of the respondent,
the same having been established by clear and convincing evidence.
However, I disagree with the recommendation that respondent be meted
only the penalty of suspension for six (6) months and one (1) day
considering the circumstances of the case.

What aggravates respondent’s situation is the undeniable
circumstance that he took advantage of his position as the superior of
the complainant. Respondent occupies the highest position in the NLRC,
being its Chairman. As the head of said office, it was incumbent upon
respondent to set an example to the others as to how they should conduct
themselves in public office, to see to it that his subordinates work
efficiently in accordance with Civil Service Rules and Regulations, and
to provide them with healthy working atmosphere wherein co-workers treat
each other with respect, courtesy and cooperation, so that in the end
the public interest will be benefited (City Mayor of Zamboanga vs. Court
of Appeals, 182 SCRA 785 [1990]).

What is more, public service requires the utmost integrity and
strictest discipline (Gano vs. Leonen, 232 SCRA 99 [1994]). Thus, a
public servant must exhibit at all times the highest sense of honesty
and integrity, and “utmost devotion and dedication to duty” (Sec. 4(g),
RA 6713), respect the rights of others and shall refrain from doing acts
contrary to law, and good morals (Sec. 4(c)). No less than the
Constitution sanctifies the principle that a public office is a public
trust, and enjoins all public officers and employees to serve with the
highest degree of responsibility, integrity, loyalty and efficiency
(Section 1, Article XI, 1987 Constitution).

Given these established standards, I see respondent’s acts not
just a failure to give due courtesy and respect to his co-employees
(subordinates) or to maintain good conduct and behavior but defiance of
the basic norms or virtues which a government official must at all times
uphold, one that is contrary to law and “public sense of morality.”
Otherwise stated, respondent — to whom stricter standards must apply
being the highest official in the NLRC — had shown an attitude, a frame
of mind, a disgraceful conduct, which renders him unfit to remain in the
service.

WHEREFORE, in view of the foregoing, respondent Rogelio I. Rayala,
Chairman, National Labor Relations Commission, is found guilty of the
grave offense of disgraceful and immoral conduct and is hereby DISMISSED
from the service effective upon receipt of this Order.

SO ORDER.

Adopted: 08 May  2000.

BY THE PRESIDENT:

(SGD.) RONALDO B. ZAMORA
Executive Secretary