GUATSON INTERNATIONAL TRAVEL AND TOURS, INC., PHILIPPINE INTEGRATED LABOR ASSISTANCE CORPORATION, MERCURY EXPRESS INTERNATIONAL COURIER SERVICES, INC., PETITIONERS, VS. NATIONAL…

Petitioners Guatson Travel and Tours, Inc. (herein after referred
to as Guatson Travel), Philippine Integrated Labor Assistance Corp. (Philac)
and Mercury Express International Courier Services, Inc. (MEREX) assail the
Decision, rendered by the National Labor Relations Commission in Case No.
NLRC-NCR-00-11-0451-88 entitled “Jolly M. Almoradie v. Guatson’s Travel
Company, Philac and MEREX,“ dated March 21, 1991 and its
Resolution, dated May 31, 1991, denying the petitioners’ Motion for
Reconsideration.

In the questioned decision, the NLRC found that Mr. Henry Ocier’s
(Vice-President and General Manager of petitioner Guatson Travel) actuation of
threatening and forcing private respondent, Jolly M. Almoradie, to resign
amounted to illegal dismissal and thus ordered petitioners to pay private
respondent backwages, computed from the date of his dismissal on November 1988,
until the decision was rendered on February 28, 1991 or the amount of P50,328.00;
and to pay separation pay equivalent to one-half (1/2) month for every year of
service, for seven (7) years or the amount of P6,524.00.

From the records it appears
that Jolly M. Almoradie was first
employed by Mercury Express International Courier Service, Inc. (MEREX) in
October, 1983 as Messenger receiving a monthly salary of P800.00. When it closed its operations, Almoradie was
absorbed by MEREX’s sister company Philippine Integrated Labor Assistance Corp.
(Philac), likewise as Messenger with an increased salary of P1,200.00.

In September, 1986, Almoradie was transferred to Guatson Travel,
allegedly also a sister company of MEREX and Philac, as Liaison Officer with a
salary of P1,864.00. Thereafter, he was
promoted to the position of Sales Representative sometime in April, 1988. On April 30, 1988, Almoradie was issued
three separate memoranda as follows:

“IOM/88-70

“Please explain in
writing within 24 hrs. or not later than Monday morning the reason why you
don’t want to sell.^[1]

“IOM/88-71

“Please explain in
writing why did you went (sic) to BEMIL and who sent you there.^[2]

“IOM-88

“Explain in writing not later than Monday the following:

“1. The reason why you want to be a messenger and no more a
sales representative;

“2. That I’m always confonting (sic) you, as what you’ve told
me personally;

“3. Why you will not answer in writing the memo issued to you
by Lou Cantara on 30 Apr;

x x x

“5. Why when
you were asked last Friday to join the Sales Blitz to Sta. Ana you said yes and
you change (sic) your mind when you were asked again last Saturday;

x x x

“7. Why you
have forgotten the situation wherein you refuse (sic) to sell a certain product
recommended by Myrna;

“8. The meaning of “You pirated me from Philac…”^[3]

Within the time frame specified, Almoradie responded to each of
the charges, the essence of which are as follows:

“1. It is not true that I do not want to sale
(sic) the rates & package tour of our Company as imputed and charge (sic),
because since April, 1988 (sic) when I was transferred from Accounting to sales
department of our Company I was able to sale (sic) almost 110 dollars to 21
passengers. The truth however is that,
I am hampered in my sales promotion and solicitation of customer, due to
financial constraint considering that the kind and nature of work entails much
expenses for which I shouldered (sic) with my personal money. As a matter of fact I have brought this
matter to the Vice President and General Manager if only an appropriation be
set aside for the expenses in going around, meeting people and soliciting
prospective clients.

“2. Bemil is a customer of our company. With respect to the ticketing and booking of
Bemil passengers, undertaking (sic) by the sales department of our company, I used
to go Bemil (sic) to inquire whether they have passengers for booking and
ticketing. As a matter of fact, I went
to Bemil to pick-up their ticketing and booking for their passengers last
Monday, April 29, 1988 (sic) and then returned the following day, Saturday
April 30, 1988, to deliver the ticket.

x x x

“3.1.
Considering that the job of sales representative entails so much expense in the
performance thereof (sic), as I have stated in my number one (1) explanation
and I have to use my own personal money to promote and solicit customer without
any funding of our company (sic), I have taught (sic) it better that I like my
position as messenger, that (sic) as sales representative, although the later
(sic) position is more dignified, hence I prefer to be returned to my messenger
position.

“3.2. That I
admit of the often confrontation conducted (sic) by Vice President/General
Manager, even in the absence of error or fault (sic)…

“3.3. It is not
true that I did not or fail to answer the memo issued by Lou Cantara, since I
was given until May 2, 1988 to answer the same…

x x x

“3.5. As
scheduled, I said yes to the sales blitz to Sta. Ana, because in truth I am
very interested in such sales business attack since it is in connection with my
function as a sales representative that will surely enhance and sharpen my
sales acumen, but if I was not able to join it is not the reason my change of
mind (sic), but because the Vice President/General Manager of our Company,
Henry Ocier summoned me to his office and had a very lengthy confrontation of
me (sic), and when I go out (sic) after the confrontation to join the sales
blitz-krieg to Sta. Ana last Saturday, April 30, 1988, Mr. Oscar Vanderlipe who
heads the sales Group (sic) were (sic) already gone.

x x x

“3.7. I deny
vehemently that I refuse to sale (sic) a certain product recommended by Myrna
de Vera because the same is totally false. Since April 1, 1988 when I was transferred to the sales department of
our company where from the very beginning I was briefed and taught and learned
about the nature of my job and the product to sale (sic) by Myrna (sic) de Vera
herself, I have ever since until now ventured and performed the selling of
rates and package tour which are every products (sic) for sales department of
our company. If sometimes I make no
sales, which all sales representative suffer and are beset such (sic), however,
cannot be considered as refusal to sale (sic). The only product of our Company that Myrna briefed, taught and required
as to sales (sic) our rates and Package Tours which I’ve been selling since
April 1, 1988 up to present. (sic)

x x x”^[4]

On May 4, 1988, Almoradie was reverted to the position of
Messenger, yet sometime in September, 1988, he was again given the position of
Account Executive, the nature of work of which is similar to that of a sales
representative. Almoradie accepted the
transfer with the understanding that he will solely discharge the duties of an
account executive and will no longer be required to do messengerial work.

In the morning of October 1, 1988, Almoradie was allegedly
summoned by Henry Ocier to his office and was there and then forced by the
latter to resign. Ocier taunted
Almoradie with threats that if he will not resign, he will file charges against
him which would adversely affect his chances of getting employed in the
future. Ocier allegedly even provided
the pen and paper on which Almoradie wrote and signed the resignation letter
dictated by Ocier himself.^[5]

On that same day, Almoradie sought the help of a friend, Isagani
Mallari, who advised him to report the matter to the Barangay Captain.^[6]
Subsequently, Almoradie filed a complaint for Illegal Dismissal on November 14,
1988. The Labor Arbiter, however
dismissed his case based on the following conclusions:

“In examining the facts and the arguments, it is difficult to
abide by the impression that complainant was forced to resign. Apart from the averment of respondent
Guatson that Mr. Ocier was out of town when the resignation letter was executed
that he just saw the resignation letter when he arrived.^[7] There
is reason to believe that complainant apparently defied the order for his
transfer or designation as account executive earlier before he executed his
resignation letter.

“It must be concluded that his designation as account
executive is a management prerogative which under the circumstance is untainted
with any unfair labor practice. Apparently, complainant resented his resignation without any plausible
or cogent reason as he had earlier resented to be a sales representative for
which he was made to explain the reasons why. The only graceful exit to the complainant was to execute his letter of
resignation. As his letter of
resignation shows, it was executed in his own handwriting spontaneously out of
his own free will.”^[8]

Upon Almoradie’s appeal, the NLRC reversed the decision of the
Labor Arbiter on his finding that complainant was not forced to resign,
anchoring its conclusion to the fact that Almoradie was a permanent employee
who has been working for the Ocier’s for five long years; that he was receiving
a fairly good salary considering that he is single; that he had no potential
employer at the time of his resignation; that there was no evidence to show
that Mr. Henry Ocier was indeed not in town on October 1, 1988, when he
allegedly forced Almoradie to resign; and his reaction immediately after his
forced resignation by seeking the assistance of a friend who was placed in a
similar situation before and in reporting the incident to the Barangay Chairman
to seek redress.

The issue therefore, boils down to the question of whether Jolly
Almoradie was indeed illegally dismissed by being forced to resign in the
manner narrated by him.

From a synthesis of the evidence on record, we fully agree with
the finding of the NLRC that Jolly Almoradie’s resignation was NOT
voluntary. The NLRC did not err in
disregarding the conclusions reached by the Labor Arbiter because the latter’s
findings are not supported by substantial evidence.

It appears that as early as April, 1988, when Almoradie was
promoted as Sales Representative he had caught the ire of management, so much
so that he was issued no less than three memoranda in one day ordering him to
answer certain charges. Why he was
again promoted to the position of Account Executive after he was reverted back
to the rank of a messenger from being a Sales Representative is rather
intriguing, unless it was a scheme of management to really rid him from the
company. Apparently, Almoradie is not
cut out for a sales job, and hence could be dismissed or forced to resign for
failing to make good on his job in sales. On the other hand, it would be difficult to dismiss him while being a
messenger since he is a permanent employee and there would not be enough basis
to make him resign.

We do not agree with petitioners’ proposition that Mr. Ocier’s
mere utterances of the words “I will file charges against you,” and
“I have a very good lawyer,” do not constitute force or coercion as
to vitiate the free will of Almoradie in writing his resignation letter.

Intimidation may vitiate consent when the following requisites
are present: 1) that the intimidation
caused the consent to be given; 2) that the threatened act be unjust or
unlawful; 3) that the threat be real or serious, there being evident
disproportion between the evil and the resistance which all man can offer,
leading to the choice of doing that act which is forced on the person to do as
the lesser evil; and 4) that it produces a well-grounded fear from the fact
that the person from whom it comes has the necessary means or ability to
inflict the threatened injury to his person or property.^[9]

The moment that a person by whom respect and reverence are due should
wrongly exert pressure upon his subordinates, amounting to intimidation in the
manner stated in the Lichauco de Leon case, supra, in order
to exact from said subordinates an act against their will, the same is enough
to vitiate consent.

Henry Ocier did not only say that he will file charges against
Almoradie and that he has a good lawyer but he even threatened to block his
future employment should the latter not file his resignation. This threat is not farfetched. Almoradie is not even a college graduate.^[10]
With his limited skills and the scarcity of employment opportunities it would
really be difficult for him to find a job. Considering further the influence of Mr. Henry Ocier and his capacity to
make good his threat by refusing to give a favorable recommendation on
Almoradie’s performance, the latter is helpless in not complying with the
formers demand for his resignation.

Anent NLRC’s grant of separation pay and backwages to private
respondent Jolly M. Almoradie, petitioners argue that the companies, Guatson
Travel Company, Philac and Merex have separate and distinct legal personalities
such that the two latter companies should not be held liable, assuming, for the
sake of argument that private respondent was illegally dismissed.

We uphold the NLRC. The
three companies are owned by one family, such that majority of the officers of
these companies are the same. The
companies are located in one building and use the same messengerial
service. Moreover, there was no showing
that private respondent was paid separation pay when he was absorbed by Philac
upon closure of Merex; nor was there evidence that he resigned from Philac when
he transferred to Guatson Travel. Under
the doctrine of piercing the veil of corporate fiction, when valid ground
exists, the legal fiction that a corporation is an entity with a juridical
personality separate and distinct from its members or stockholders may be
disregarded. We have applied this
doctrine in the case of “Philippine
Scout Veterans Security and Investigation Agency (PSVSIA), et al. v. The Hon.
Secretary of Labor,” G.R. No. 92357, July 21, 1993.

Where there is a finding of illegal dismissal, the employee is
entitled to both reinstatement and award of backwages from the time the
compensation was withheld, in this case in 1988, up to a maximum of three
years, applying the Mercury Drug Rule.^[11]

Reinstatement, however, will not be required not only for the
reason that it was not prayed for by the respondent, but also because the
relationship between Almoradie and Ocier had become strained as to preclude a
harmonious working relationship. In
lieu of reinstatement, separation pay is awarded.^[12]
As the term suggests, separation pay is the amount that an employee receives at
the time of his severance from the service and is designed to provide the
employee with the wherewithal during the period that he is looking for another
employment.^[13]

However the award of separation pay should be, as we have
consistently ruled, equivalent to one (1) month for every year of service,^[14]
instead of one-half (1/2) month as awarded by the NLRC. In the computation
of separation pay, the three (3) year period wherein backwages are awarded,
must be included.^[15]

WHEREFORE, the decision of the NLRC is hereby MODIFIED to the extent
that the award of backwages should be computed based on a three-year period,
while the separation pay of one month for every year of service should be
computed from the time petitioner was employed by Merex and should include the
three-year period as backwages. The
petition is hereby DISMISSED for lack of merit.

SO ORDERED.

Narvasa, C.J., (Chairman), Padilla, Regalado, and Puno, JJ.,
concur.

^[1]
Original Record, p. 75.

^[2]
Original Record, p. 76.

^[3]
Original Record, p. 77.

^[4]
Annex “B,” Original Record, pp. 78-79.

^[5]
Annex “4,” Original Record, p. 81.

^[6]
TSN of April 10, 1989, p. 18.

^[7]
This finding was based on the position paper of petitioners submitted to the
Labor Arbiter. Mr. Ocier himself was
not put on the witness stand and crossed examined.

^[8]
Rollo, pp. 128-129; Labor Arbiter’s Decision, pp. 3-4.

^[9]
Lichauco de Leon v. Court of Appeals, G.R. No. 80965, 186 SCRA 345
(1990).

^[10]
TSN of April 24, 1989, p. 17.

^[11]
It should be noted that private respondent was illegally dismissed on October
1, 1988, such that the applicable rule in computing the amount of backwages is
that enunciated in the case of Mercury Drug Co., Inc., et al. v. Court
of Industrial Relations, et al., G.R. No. L-23357, 56 SCRA 694 (1974) and
instituted in the case of Feati University Faculty Club (PAFLU) v. Feati
University, et al., G.R. No. L-31503, 58 SCRA 395 (1974).

^[12]
Quezon Electric Cooperative v. NLRC, et al., G.R. Nos. 79718-22, 172
SCRA 89 (1989); De Vera, et al. v. NLRC, et al., G.R. No. 93212, 191
SCRA 632 (1990).

^[13]
Torillo v. Leogardo, Jr., G.R. No. 77205, 197 SCRA 471 (1991); Sealand
Services, Inc. v. NLRC, G.R. No. 90500, 190 SCRA 347.

^[14]
Hernandez v. NLRC, G.R. No. 84302, 176 SCRA 269 (1989); Asphalt &
Cement Pavers, Inc. v. Vicente Leogardo, Jr., G.R. No. 74563, 162 SCRA
312 (1988); Pepsi-Cola Bottling Co. v. NLRC, G.R. No. 101900, 210 SCRA
277 (1992)

^[15]
Grolier International, Inc. v. Amansec, G.R. No. 83523, 177 SCRA 196
(1989); Torillo, supra.