DONNA V. ABANTO, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION (FIRST DIVISION), EXL SERVICES, INC., RESPONDENTS.
LANTION, J.A.C., J.:
Before Us is a Petition for Certiorari[1] filed by Petitioner Donna V. Abanto (hereinafter “Abanto”) assailing the Decision[2] dated 31 July 2012 rendered by the National Labor Relations Commission, First Division (“NLRC”), in NLRC NCR CASE NO. 09-12835-10 and NLRC LAC NO. 03-000775-11. The fallo of the assailed Decision reads:[3]
WHEREFORE, the appeal filed by the complainant is hereby DISMISSED for lack of merit.
Accordingly, the Decision of Labor Arbiter Geobel A. Bartolabac dated December 15, 2011 is AFFIRMED.
SO ORDERED.
The Resolution[4] dated 28 November 2012 denying Abanto’s Motion for Reconsideration, is likewise assailed.
THE FACTS
Material Antecedents
Private Respondent EXL Services, Inc. (“EXL”) is engaged in the business of providing various outsourcing services for its clients, which includes, among others, the management and operation of a call center.
On 07 December 2009, EXL hired Abanto as a Customer Service Associate. Under the Employment Agreement[5] entered into by the parties, Abanto was initially placed on a probationary status to last for a period of six months or until 07 June 2010, after which she would become a regular employee if she met EXL’s performance standards. Prior to the expiration of the probationary period, however, Abanto did not meet the said standards.
On 02 June 2010, Abanto received a Confidential Confirmation Appraisal Form,[6] which contained EXL’s evaluation of her work conduct and indicated that Abanto’s probationary period was to be extended. As Abanto signed the said Form, EXL extended her probationary period for an additional three months or until 07 September 2010.[7]
On 07 September 2010, EXL sent Abanto a Notice of Non-Regularization,[8] which informed her that she would not be accorded regular employment for her failure to meet the company’s performance standards. This prompted Abanto to file a complaint for illegal dismissal against EXL and its corporate officers before the NLRC, which was docketed as NLRC-NCR Case No. 09-12835-10. Since the parties could not amicably settle, they were directed to file their respective position papers.
Allegations of the Complainant (Abanto)[9]
In her position paper, Abanto avers that EXL failed to inform her, at the time she was hired, of the performance standards that she, as a probationary employee, was expected to meet. In fact, it was only three months thereafter that EXL appraised Abanto of such standards.
Abanto further argued that she had become a regular employee as she was allowed to work after the lapse of the probationary period, which period was only to last for six months. Abanto denied having ever given her consent, written or verbal, to any extension of the said period. As a matter of fact, when Abanto signed the Confidential Confirmation Appraisal Form,[10] her signature thereon merely indicated the fact that she underwent a performance appraisal; she did not intend to give her consent to an extension of the probationary period. Consequently, pursuant to the Labor Code, her continued employment beyond the six month probationary period rendered her a regular employee. As a regular employee therefore, EXL could not lawfully dismiss her based on poor performance, which is not one of the just causes for termination of employment under the law.
Allegations of the Respondent (EXL)[11]
For its part, EXL contends that in the normal process of hiring employees they are duly informed of performance standards which must be met in order to become a regular employee. Regarding Abanto, she was assigned to the TOPAZ process and went through two training programs encompassing a total of seven weeks. The trainings covered topics such as familiarization with matters relating to clients, insurance products, and cross cultural training. Moreover, EXL explained to Abanto of certain target scores that must be met relating to the TOPAZ process, which is comprised of four (4) metrics, namely: call quality, productivity, average handling time, and transfer rate.
Unfortunately, when Abanto was endorsed to the Operations department, she was not performing up to standard. Her performance reports for the months of March, April, and May 2010 revealed that she was deficient in “call quality” and “average handling time.” Specifically, “call quality” refers to the employee’s substantive knowledge on the client’s product and the overall manner of handling calls. Conversely, “average handling time” speaks of the efficiency of an employee in handling calls, which should not exceed the prescribed number of minutes.
EXL highlights that on or about June 2010, the last month of the probationary period, Abanto met with EXL’s officers and, after discussing her unsatisfactory performance, she was offered another chance to qualify for regular employment by extending the probationary period. As a result thereof, Abanto signed a Confidential Confirmation Appraisal Form. Nonetheless, despite having been granted an extension, Abanto’s output was still not satisfactory. Based therefrom, EXL ultimately decided that she would not become a regular employee.
Furthermore, EXL emphasized that Abanto’s consent to the extension of the probationary period is also evidenced in the Employment Agreement,[12] which Abanto also signed. The Agreement contains a clause that the six month probationary period may be extended in case an employee’s performance does not meet the standards for regularization.
Rulings of the Labor Arbiter and the NLRC
On 15 December 2010, the Labor Arbiter issued a Decision[13] dismissing Abanto’s complaint, in this wise:[14]
WHEREFORE, in view of the foregoing, judgment is hereby rendered dismissing the instant Complaint for lack of merit. However, respondent EXL Service Philippines, Incorporated is ordered to pay complainant the sum of P3,000.00 representing complainant’s attendance bonus for the period of August 2010.
All other claims are similarly dismissed for lack of merit.
SO ORDERED.
Dissatisfied, on 07 March 2011, Abanto filed a Memorandum of Appeal[15] questioning the Labor Arbiter’s Decision before the NLRC.
On 31 July 2012, the NLRC rendered the assailed Decision affirming the Labor Arbiter’s Decision and dismissing Abanto’s appeal.
Abanto’s counsel received a copy of the assailed Decision on 28 August 2012.[16] Abanto filed Motion for Reconsideration[17] of the said Decision on 10 September 2012,[18] which was denied by the NLRC in the assailed Resolution dated 28 November 2012.
Hence, this Petition.
ISSUES
Abanto, through counsel, raises the following assignment of errors:[19]
I.
THE NATIONAL LABOR RELATIONS COMMISSION (NLRC) GRAVELY ABUSED ITS DISCRETION WHEN IT AFFIRMED THE FINDING OF THE LABOR ARBITER DISMISSING THE CASE FOR LACK OF MERIT BY RELYING ON [THE] SELF-SERVING AFFIDAVIT OF RESPONDENT COMPANY’S EMPLOYEE THAT REASONABLE STANDARDS WERE MADE KNOWN TO PETITIONER WHEN THE TRUTH IS THEY WERE NOT[.]
II.
THE NLRC GRAVELY ABUSED ITS DISCRETION IN DISPOSING AS “BARE DENIAL” PETITIONER’S ASSERTION THAT NO STANDARDS WERE MADE KNOWN TO HER AT THE TIME OF ENGAGEMENT DESPITE THE SUPPORTING AFFIDAVIT OF PETITIONER’S CO-WORKER AFFIRMING SUCH ABSENCE OF STANDARDS[.]
III.
THE NLRC GRAVELY ABUSED ITS DISCRETION IN APPRECIATING THE CONFIRMATION APPRAISAL FORM AS AN AGREEMENT FOR EXTENSION OF PROBATION WHEN THE PURPOSE OF THE FORM IS PURELY FOR APPRAISAL AND THE SIGNATURE OF PETITIONER THEREIN WAS AFFIXED AS A STANDARD PROCEDURE BEING THE APPRAISEE[.]
OUR RULING
Before delving into the substantive issues raised by Abanto, this Court deems it necessary to resolve material procedural matters.
Section 15, Rule VII of the 2011 NLRC Rules of Procedure reads:[20]
SECTION 15. Motions for Reconsideration. – Motion for reconsideration of any decision, resolution or order of the Commission shall not be entertained except when based on palpable or patent errors; provided that the motion is filed within ten (10) calendar days from receipt of the decision, resolution or order, with proof of service that a copy of the same has been furnished, within the reglementary period, the adverse party; and provided further, that only one such motion from the same party shall be entertained. (Emphasis supplied)
A perusal of the pleadings at hand shows that Abanto’s Motion for Reconsideration of the assailed Decision was not timely filed. Abanto’s counsel received a copy of the said Decision on 28 August 2012.[21] By virtue of Section 15, Rule VII of the 2011 NLRC Rules of Procedure,[22] Abanto had ten calendar days from receipt of the assailed Decision or until 07 September 2012 within which to file a motion for reconsideration. Unfortunately, Abanto filed her Motion for Reconsideration only on 10 September 2012[23] or three days beyond the reglementary period.[24]
Nonetheless, the NLRC ruled on Abanto’s Motion and denied the same in the challenged Resolution dated 28 November 2012, which Resolution Abanto received on 04 January 2013.[25] Since Section 4, Rule 65 of the Rules of Court requires that a petition for certiorari shall be filed not later than sixty days counted from the notice of the denial of the motion for reconsideration,[26] Abanto thus had sixty days from 04 January 2013 or until 05 March 2013 within which to file a petition for certiorari. Inasmuch as the present Petition was filed on 04 March 2013,[27] which date falls within the reglementary period provided in the Rules, We find that the same was timely filed.
Having disposed of the procedural matters, We shall proceed to resolve the substantive issues raised by Abanto.
In order for a petition for certiorari under Rule 65 of the Rules of Court to prosper, it is incumbent upon the petitioner, in this case Abanto, to show that the tribunal exercising quasi-judicial functions has committed grave abuse of discretion amounting to a lack or excess of jurisdiction.[28] As defined by jurisprudence, the phrase “grave abuse of discretion” means “the capricious and whimsical exercise of judgment, or the exercise of power in an arbitrary manner, where the abuse is so patent and gross as to amount to an evasion of positive duty.”[29] Jurisprudence further clarifies that a mere showing of the commission of abuse of discretion is insufficient; the same must be grave.[30]
In her Petition, Abanto argues that the NLRC committed grave abuse of discretion in dismissing her complaint for illegal dismissal. Abanto insists that EXL never informed her of any standards or performance metrics that she must meet in order to become a regular employee. In support of her position, Abanto introduced Tiffy Escorpiso, a former co-worker of hers, who corroborated her theory that she was not notified of any performance standards. In failing to inform her of such standards, Abanto contends that she was not hired as a probationary employee but as a regular employee. Consequently, it was improper for EXL to dismiss her services on the basis that she “failed to qualify” because such reason is not among the lawful grounds of termination of employment under the Labor Code. Thus, Abanto prays, inter alia, that the assailed Decision and Resolution be set aside.
Abanto’s contentions fail to persuade Us.
Probationary employment is sanctioned by Article 287 of the Labor Code, which provides:[31]
ART. 287. 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.
Jurisprudence reiterates that in hiring an employee on a probationary basis, it falls upon the employer the responsibility to comply with two requirements:[32] (1) the employer must communicate the regularization standards to the probationary employee; and (2) such communication must be made at the time of the probationary employee’s engagement. In Abbott Laboratories, Philippines v. Alcaraz, the Supreme Court explains:[33]
Keeping with these rules, an employer is deemed to have made known the standards that would qualify a probationary employee to be a regular employee when it has exerted reasonable efforts to apprise the employee of what he is expected to do or accomplish during the trial period of probation. This goes without saying that the employee is sufficiently made aware of his probationary status as well as the length of time of the probation.
Here, We find that there is ample evidence on record to support the conclusion that Abanto was duly apprised of what she was expected to do or accomplish at the time of her engagement as a probationary employee and during the probationary period.
Firstly, Adrian Asuncion, who is an Assistant Manager for Recruitment of EXL, narrated that all interested applicants routinely undergo a five-step procedure[34] in applying for positions in the company. Specifically, in the fourth stage thereof, which consists of a final interview conducted by an associate of the Operations department, the applicant is informed of the need to pass certain performance metrics as a condition for regularization.[35] The verity that a newly hired associate, such as Abanto, was informed of certain standards is supported by the Employment Agreement, paragraph 1.3 section (i) of which plainly states, “[y]ou will be on probation for a period of 6 months from the date of joining which can be extended by the company at its discretion in case your performance does not meet requisite standards.”[36]
Secondly, Estrella Eduria, who is the Senior Operations Manager of EXL for the TOPAZ process and a supervisor of Abanto, stated that after Abanto was hired and assigned to the TOPAZ process, she was required to go through two training modules encompassing a total of seven weeks. The training covered topics such as familiarization with matters relating to clients, insurance products, and cross cultural training.[37]
Thirdly, another of Abanto’s supervisors, Marie Khristian Garcia, averred that Abanto was duly informed of the four performance or process metrics relating to the TOPAZ process, which are briefly described as follows: (1) call quality, which deals with the manner as to how an associate handles the calls of the client’s customers; (2) productivity, which concerns attendance; (3) average handling time, which relates to timed efficiency in handling calls; and (4) transfer rate, which treats of the ability of an associate to transfer a mistakenly routed call to the appropriate personnel.[38]
As gleaned from the foregoing, it is evident that Abanto was properly informed of the standards that she must meet in order to qualify as a regular employee of EXL not only from the moment she was hired, but also during the training given to her as a Customer Service Associate. Consequently, We find it difficult to believe the notion that such standards were never communicated to her and, therefore, cannot ascribe grave abuse of discretion to the NLRC in dismissing Abanto’s appeal.
Nonetheless, Abanto insists that she never agreed to extend her probationary status beyond six months. According to Abanto, the Confidential Confirmation Appraisal Form that she signed is nothing more than a standard appraisal form; she had no choice but to sign the same as such forms are customary in every appraisal process.
We are not so convinced.
In Mariwasa Manufacturing, Inc. v. Leogardo, Jr., the Supreme Court decreed that, exceptionally, probationary employment may be lawfully extended beyond the six month period provided in the Labor Code if there is an agreement by the parties to that effect.[39]
Here, it is clear that Abanto gave her consent to the extension of the probationary period as evidenced by her signature appearing on the Confidential Confirmation Appraisal Form.[40] A cursory reading thereof shows that Abanto never raised any protest or disagreement thereto, despite having had the opportunity to do so in the space provided for comments. That Abanto duly agreed to the extension of the probationary period is further supported by the statements of Marie Khristian Garcia, who personally spoke to Abanto about the willingness of EXL to offer her another chance to qualify for regular employment and noted that the only matter Abanto inquired about was the possibility of having her health benefits apply in favor of her children.[41]
At this juncture, it bears stressing that “factual findings of quasi-judicial bodies like the NLRC, particularly when they coincide with those of the Labor Arbiter and, if supported by substantial evidence, are accorded respect and even finality by this Court.”[42] Having found earlier that the NLRC did not commit grave of discretion in issuing the assailed Decision and Resolution, the same stand.
WHEREFORE, premises considered, the instant Petition is hereby DISMISSED for lack of merit. ACCORDINGLY, the challenged Decision dated 31 July 2012 and Resolution dated 28 November 2012 rendered by the NLRC in NLRC NCR CASE NO. 09-12835-10 and NLRC LAC NO. 03-000775-11 are AFFIRMED.
SO ORDERED.
Veloso (Chairperson) and Antonio-Valenzuela, JJ., concur.
[1] Rollo, pp. 3-22.
[2] Id. at 25-32.
[3] Id. at 31-32.
[4] Id. at 47-50.
[5] Id. at 78-88.
[6] Id. at 183-185.
[7] Id. at 92, 168,185.
[8] Id. at 93.
[9] As gleaned from the Complainant’s Position Paper, Rollo, pp. 51-75.
[10] Rollo, pp. 183-185.
[11] Culled from the Respondents’ Position Paper, Rollo, pp. 101-135.
[12] Rollo, pp. 77-88.
[13] Penned by Labor Arbiter Geobel A. Bartolabac, Rollo, pp. 303-314.
[14] Rollo, p. 314.
[15] Id. at 315-342.
[16] As gleaned from the assailed Resolution dated 28 November 2012 issued by the NLRC, Rollo, p. 49.
[17] Rollo, pp. 33-46.
[18] Id. at 343, 344.
[19] Id. at 9-10.
[20] 2011 NLRC Rules of Procedure, rule VII, sec. 15.
[21] Culled from the assailed Resolution dated 28 November 2012 issued by the NLRC, Rollo, p. 49.
[22] 2011 NLRC Rules of Procedure, rule VII, sec. 15.
[23] Rollo, pp. 343, 344.
[24] Even assuming that Abanto received the assailed Decision on 29 August 2012 (as alleged in her Petition for Certiorari, Rollo, p. 4), the Motion for Reconsideration she submitted on 10 September 2012 was still filed beyond the reglementary period required by Section 15, Rule VII of the 2011 NLRC Rules of Procedure.
[25] Rollo, p. 4.
[26] See 1997 RULES OF CIVIL PROCEDURE, rule 65, sec. 4.
[27] Rollo, p. 3.
[28] See 1997 RULES OF CIVIL PROCEDURE, rule 65, sec. 1.
[29] Vinzons-Chato v. HRET and Panotes v. HRET, G.R. Nos. 199149 and 201350, January 22, 2013.
[30] Spouses Dacudao v. Secretary of Justice Gonzales, G.R. No. 188056, January 8, 2013 citing Delos Santos v. Metropolitan Bank and Trust Company, G.R. No. 153852, October 24, 2012.
[31] A Decree Instituting a Labor Code Thereby Revising and Consolidating Labor and Social Laws to Afford Protection to Labor, Promote Employment and Human Resources Development and Insure Industrial Peace Based on Social Justice [LABOR CODE], Presidential Decree No. 442, as amended, art. 287 (1974).
[32] See Abbott Laboratories, Philippines v. Alcaraz, G.R. No. 192571, July 23, 2013.
[33] G.R. No. 192571, July 23, 2013.
[34] This process precisely involves the following (Rollo, p. 153): (1) filing of job application; (2) initial interview with a Human Resources Associate for Recruitment; (3) written examination and typing exam; (4) final interview with an associate from Operations; and (5) job offer by an associate from Human Resources.
[35] See the Affidavit of Adrian Asuncion, Rollo, pp. 153-154.
[36] Rollo, p. 78.
[37] See the Affidavit of Estrella Eduria, Rollo, pp. 173-174.
[38] See the Affidavit of Marie Khristian Garcia, Rollo, pp. 167-168.
[39] See G.R. No. 74246, January 26, 1989.
[40] Rollo, p. 185.
[41] See the Affidavit of Marie Khristian Garcia, Rollo, pp. 169-170.
[42] Cabigting v. San Miguel Foods, Inc., G.R. No. 167706, November 5, 2009.