FEDERICO NUEZ, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION, LABOR ARBITER MANUEL ASUNCION, PHILIPPINE OVERSEAS TELECOMMUNICATIONS CORPORATION (PHILCOMSAT), HONORIO POBLA…

After nineteen years of service to private respondent company,
the Philippine Overseas Telecommunications Corporation (PHILCOMSAT), petitioner
Federico Nuez found himself dismissed from his job for his refusal to heed an
order of a ranking company official. He
is now before us contending that his inaction did not constitute willful
disobedience and, in any case, his dismissal from the service is a penalty
grossly disproportionate to the charge of willful disobedience in view of his
length of service. He seeks
reinstatement.

Petitioner Nuez was a driver of private respondent PHILCOMSAT
since 1 May 1970. On 25 November 1988
he was assigned to its station in Baras, Antipolo, Rizal, from seven-thirty in
the morning to three-thirty in the afternoon. At one-thirty that afternoon, Engr. Jeremias Sevilla, the officer in
charge and the highest ranking official of the station, asked Nuez to drive the
employees to the Makati head office to collect their profit shares. Nuez declined saying that he had an
important personal appointment right after office hours. At two-thirty that same afternoon, he also
declined a similar order given on the phone by his vehicle supervisor, Pedro
Sibal, reasoning that “Ayaw kong
magmaneho dahil may bibilhin ako sa Lagundi. Kung gusto mo yong ‘loyalist’ ang magmaneho.”

In his memorandum of 28 November 1988, Station Manager Ramon
Bisuna required Nuez to explain within seventy-two hours why he should not be
administratively dealt with for disobeying an order of their most senior
officer on 25 November 1988. In his
written reply dated 1 December 1988, Nuez mentioned a personal appointment in justification
for his refusal to render “overtime” service and that “ferrying
employees x x x was not a kind
of emergency that x x x warrants
(the) charge of disobedience.”

Taking into consideration the reports of Engr. Sevilla and
Supervisor Sibal as well as the letter of petitioner Nuez, AVP for Transport
and Maintenance Fredelino Aujero referred the matter to Vice President for
Administration Ramon V. Nieto for appropriate action and invited his attention
to the Code of Disciplinary Action of the company providing that “refusal
to obey any lawful order or instruction of a superior is classified as
insubordination, an extremely serious offense and its first infraction calls
for dismissal of the erring employee.” The report of Aujero pointed out
that Nuez could have obeyed the directive and still have enough time to attend
to his appointment because the order was given him two hours before his tour of
duty ended and, moreover, he was seen playing billiards after office
hours. Vice President Nieto then issued
a memorandum to Nuez terminating his employment effective 26 December 1988 for
insubordination.

In his letter for reconsideration dated 1 January 1989, Nuez
explained to Vice President Nieto that after failing to get a ride to Lagundi,
he went with the company coaster at four-thirty in the afternoon and then
proceeded to TMC to play billiards when the person he wanted to see at Lagundi
had already left.

On 6 March 1989, Nuez filed this suit for illegal dismissal,
indemnity pay, moral and exemplary damages and attorney’s fees.

On 29 January 1990, Labor Arbiter Manuel P. Asuncion dismissed
the complaint for lack of merit but awarded Nuez a “monetary
consideration” in an amount equivalent to his one-half month salary for
every year of service. On appeal, the
National Labor Relations Commission affirmed on 15 June 1992 the decision of
the Labor Arbiter but limited the financial assistance to Nuez in an amount
equivalent to three months basic pay only.

In this extraordinary recourse for certiorari, Nuez seeks
to set aside the decision of the NLRC and prays for reinstatement with full
back wages from the date of dismissal to actual reinstatement without loss of
seniority rights and other benefits, an award of P50,000 in moral damages and
P50,000 in exemplary damages, attorney’s fees of 10% of the total monetary
award and other equitable reliefs. Nuez
avers that NLRC committed grave abuse of discretion in failing to consider the
evidence on record and in relying only on the memorandum of PHILCOMSAT; in
finding that there was just cause for dismissal; and, in affirming his
dismissal which is too harsh and disproportionate a penalty for a minor charge
considering his 19 years of good service.

It is undisputed that Nuez deliberately refused to obey the
directive of officer-in-charge Engr. Sevilla and his supervisor Sibal. The argument that Engr. Sevilla is not the
immediate superior of Nuez is not an excuse
not only because Sibal, the other officer who reiterated the same directive,
was his own supervisor but more importantly because it is not required that the
officer giving the order must be the immediate superior of the employee, it
being sufficient that the officer is the alter ego of the employer with regard
to the order and the order relates to the duty of the employee. In Family Planning Organization of the Philippines, Inc. v. National Labor Relations Commission,^[1] we said –

In order that the willful disobedience by the employee of the
orders, regulations or instructions of the employer may constitute a just cause
for terminating his employment, said orders, regulations, or instructions must
be: (1) reasonable and lawful, (2)
sufficiently known to the employee, and (3) in connection with the duties which
the employee has been engaged to discharge.

Petitioner claims that the absence of an emergency situation when
the alleged infraction was committed would not warrant his dismissal,
considering that he is a recipient of two citations for exemplary service during his 19-year stint with
the company and that not one of the employees supposedly adversely affected
complained.

We are not persuaded. In San
Miguel Corporation v. Ubaldo,^[2] we
acknowledged the discretion of the employer to regulate all aspects of
employment as well as the corresponding obligation of the workers to obey
company rules and regulations. Deliberate disregard or disobedience of the rules cannot be countenanced
and any justification for the violation is deemed inconsequential. In fact, this is one ground the Labor Code
provides for termination of employment since an employer cannot be compelled to
continue retaining a worker found guilty of maliciously committing acts
detrimental to its interests. A
contrary rule would render a mockery of the regulations the employees are
required to observe.

The existence of an emergency situation is irrelevant to the
charge of willful disobedience; an opposite principle would allow a worker to
shield himself under his self-designed concept of “non-emergency
situation” to deliberately defy the directive of the employer. Neither is the resulting damage vital. The heart of the charge is the crooked and
anarchic attitude of the employee towards his employer. Damage aggravates the charge but its absence
does not mitigate nor negate the employee’s liability. The fact that a replacement driver was able
to perform the task could neither alter the gravity of the charge, this
responsibility being personal to the perpetrator. The length of service rendered by the employee is also
inconsequential for it does not lessen a bit the rebellious temper of the
employee object of the charge. We thus
find no grave abuse of discretion in the finding of the NLRC that there is a
just ground for the termination of petitioner from the service.

As regards the procedural
due process, it is provided in Art. 277, par. (b), of the Labor Code that –

Subject to the constitutional right of workers to security of
tenure and their right to be protected against dismissal except for a just and
authorized cause and without prejudice to the requirement of notice under
Article 283 of this Code, the employer shall furnish the worker whose
employment is sought to be terminated a written notice containing a statement
of the causes for termination and shall afford the latter ample opportunity to
be heard and to defend himself with the assistance of his representative if he
so desires in accordance with company rules and regulations promulgated
pursuant to guidelines set by the Department of Labor and Employment. Any decision taken by the employer shall be without
prejudice to the right of the worker to contest the validity or legality of his
dismissal by filing a complaint with the regional branch of the National Labor
Relations Commission. The burden of
proving that the termination was for a valid or authorized cause shall rest on
the employer x x x x

Particularly, the Implementing
Rules and Regulations of the Labor Code provides that –

Sec. 1. Security of tenure and due process. – No worker
shall be dismissed except for a just or authorized cause provided by law and
after due process.

Sec. 2. Notice of Dismissal. – Any employer who seeks
to dismiss a worker shall furnish him a written notice stating the particular
acts or omission constituting the grounds for his dismissal x x x x

Sec. 5. Answer and hearing. – The worker may answer the
allegations stated against him in the notice of dismissal within a reasonable
period from receipt of such notice. The
employer shall afford the worker ample opportunity to be heard and to defend
himself with the assistance of his representative, if he so desires.

Sec. 6. Decision to dismiss. – The employer shall
immediately notify a worker in writing of a decision to dismiss him stating
clearly the reasons therefor.

Sec. 7. Right to contest dismissal. – Any decision taken by
the employer shall be without prejudice to the right of the worker to contest
the validity or legality of his dismissal by filing a complaint with the
Regional Branch of the Commission x x x
x

Sec. 11. Report on dismissal. – The employer shall submit a
monthly report to the Regional Office having jurisdiction over the place of
work all dismissal effected by him during the month, specifying therein the
names of the dismissed workers, the reasons for their dismissal, the dates of
commencement and termination of employment, the positions last held by them and
such other information as may be required by the Ministry for policy guidance
and statistical purposes.^[3]

We also held in Manggagawa
ng Komunikasyon sa
Pilipinas v. National Labor
Relations Commission:^[4]

What the law requires, as held in De Leon v. NLRC (G.R. No. L-52056, October 30, 1980, 100 SCRA
691), cited by petitioners, is for the employer to inform the employee of the
specific charges against him and to hear his side or defenses. This does not however mean a full
adversarial proceeding. Litigants may
be heard thru: (1) pleadings, written
explanations, position papers, memorandum; (2) oral arguments. In both instances, the employer plays an
active role – he must provide the employee the opportunity to present his side
and answer the charges, in substantial compliance with due process. Actual adversarial proceeding becomes
necessary only for clarification or when there is a need to propound searching
questions to unclear witnesses. This is
a procedural right which the employee must, however, ask for it is not an
inherent right, and summary proceedings may be conducted. This is to correct the common but mistaken
perception that procedural due process entails lengthy oral arguments. Hearing in administrative proceedings and
before quasi-judicial agencies are neither oratorical contests nor debating
skirmishes where cross examination skills are displayed. Non-verbal devices such as written
explanations, affidavits, position papers or other pleadings can establish just
as clearly and concisely aggrieved parties’ predicament or defense. What is essential is ample opportunity to be
heard, meaning, every kind of assistance that management must accord the
employee to prepare adequately for his defense.

In the case at bar, petitioner was given adequate opportunity
under the circumstances to answer the charge. His written explanation was taken into consideration in arriving at the
decision to dismiss him. His demand for
a hearing before his employer is now too late. First, he should have insisted on a hearing in the initial proceedings
conducted by the company, and second, his written explanation admitted the
complained inaction thereby rendering unnecessary any hearing thereon. Since the defense Nuez interposed was in the
nature of a justifying circumstance, the burden shifted to him to prove that
his inaction was warranted. This, Nuez
failed to overthrow not only before the company but also before the Labor Arbiter
and NLRC.

Nuez now seeks refuge in Sec. 8, Art. VII, of the existing
Collective Bargaining Agreement which provides –

No employee shall be deemed dismissed, suspended, demoted or
reprimanded without any just, lawful and reasonable cause and previous due
process. Both the employee concerned and
the Union shall be informed in writing of the charges against the former who
shall be allowed union representation during the investigation. If no disciplinary action is taken by the
company within fifteen (15) days from and after the case has been reviewed by
the VP concerned, the case shall be considered closed.^[5]

The CBA provision imposes on PHILCOMSAT three (3) non-statutory
responsibilities, namely, to inform the union in writing of the charge, to
allow the employee union representation, and for its Vice-President to take
action on the charge within fifteen days otherwise the case shall be deemed
closed. The testimony of union lady
President Frances Cariño discloses that the union was served the show cause memorandum
addressed to Nuez the day after Nuez received his and that the union helped
edit the explanation submitted by Nuez to PHILCOMSAT. There was no occasion for PHILCOMSAT to disallow, hence to
violate, the right of Nuez to union representation for the reason that neither
Nuez nor the union asked for an investigation where that right may be
demanded. The allegation of Nuez that
the AVP/VP concerned acted on the report of Station Manager Bisuna 12 days from
receipt thereof^[6]
proves compliance with the third responsibility. The fact that under the company rules, the AVP/VP concerned must
decide the case within 48 hours from receipt of the papers from the Personnel
Manager is inconsequential for two reasons: first, this provision does not impose a sanction for failure to meet the
48 hour deadline (unlike in the aforequoted CBA provision) and it cannot be
fairly presumed that the charge prescribes after the 48th hour; and second, the
rule presupposes the transmittal of papers from the Personnel Manager who does
not appear to have participated in the proceedings below.

There is no ground, statutory or contractual, for the claim of
Nuez that he should have been required to present his side before Aujero and
Bisuna in the course of the making of their reports. This is not required by law nor by the
aforequoted CBA provision.

As if grasping for straws, Nuez hurls a malicious allegation that
NLRC “relied only on the memorandum of respondents.” Strangely, what he quotes in support of this
accusation is not the said memorandum but the findings of fact of the Labor
Arbiter which the NLRC reaffirmed. In
any case, however, the discretion of a quasi-judicial body, like the Labor
Arbiter or the NLRC, to decide a case one way or another is broad enough to
justify his or its adoption of the arguments put forth by one of the parties,
as long as these are legally tenable and supported by facts on record. Since in almost all cases only one of the
contending parties prevails and usually the tribunal adopts the theory of the
prevailing party, it is not safe to postulate that the evidence of the losing
party is never considered.

There is also no basis to disregard the letter report of Sibal
containing the quotations in the vernacular for being hearsay. Although Sibal was not presented by
PHILCOMSAT nothing prevented Nuez from summoning him to scrutinize the veracity
of the report. If he was able to
present Station Manager Bisuna as a hostile witness, there is no reason why he
could not do the same to Sibal. Moreover, not only was the Sibal report not categorically denied by
Nuez, but worse, he even used it in evidence against PHILCOMSAT.^[7]
Notwithstanding the foregoing, we need only reiterate our ruling in Rabago
v. NLRC ^[8] –

x x x x The argument that the affidavit is hearsay because the affiants
were not presented for cross-examination is not persuasive because the rules of
evidence are not strictly observed in proceedings before administrative bodies
like the NLRC, where decisions may be reached on the basis of position papers
only.

The same could be said of the logbook reports of the security
guard which are being assailed as hearsay.

Without admitting culpability, Nuez asserts that the penalty of
dismissal is too harsh to warrant his dismissal, citing the cases of Philippine
Airlines, Inc. v. Philippine Airlines Employees Association (PALEA),^[9] decided under the pre-Labor Code laws
and jurisprudence, and Catalan v. Genilo.^[10]

The factual circumstances attending these two cases are different
from what transpired in the case at bench. In the PAL case,
Fidel Gotangco, charged with theft of company property, was ordered reinstated
by the Court not only because this was his first offense in his 17 years of
service and in the absence of damage to the company but also because of having
been “under preventive suspension to date.” More revealing in the
said decision is the incertitude of the Court whether the facts did constitute
the charge so much so that we considered the situation as “too harsh an
appraisal to view it as constituting a theft.” The Catalan case where petitioners
therein were charged with violation of the company rule against “Drinking
in the Company premises or Coming to Work Under the Influence of Alcohol,”
is similar to the PAL case aforecited. There, we sustained the observation of the
Solicitor General that “the actual violation of the company rule or
regulation was not committed.” In the case at bar, the charge of willful
disobedience is clearly established, hence, the dismissal of petitioner was
inevitable.

We held in Aguilar v. NLRC^[11] that –

Willful disobedience of the employer’s lawful orders, as a just
cause for the dismissal of an employee, envisages the concurrence of at least
two (2) requisites: the employee’s
assailed conduct must have been willful or intentional, the willfulness being
characterized by a ‘wrongful and perverse attitude.’ The order violated must
have been reasonable, lawful, made known to the employee and must pertain to
the duties which he had been engaged to discharge (Gold City Integrated
Port Services v. NLRC, 89 SCRA 811 [1990]) x x x x

We agree with the NLRC that the acts of herein complainant in
defiantly disobeying the rules of the company even after investigation, shows
her cavalier attitude which leaves the management no other recourse but to terminate
her services. To condone such conduct
will certainly erode the discipline that an employer would uniformly enforce so
that it can expect compliance with said rules and obligations by its other
employees. Otherwise the rules
necessary and proper for the operation of its business would be rendered
ineffectual (Soco vs. Mercantile Corporation of Davao, et al., 148 SCRA
526 [1987]). An employer cannot legally
be compelled to continue with the employment of a person who admittedly was
guilty of misfeasance or malfeasance towards his employer, and whose
continuance in the service of the latter is patently inimical to his interests (Colgate
Palmolive Phils., Inc. vs. Ople, et al., 163 SCRA 323 [1988]).

As regards monetary awards given petitioner, we have no reason to
deviate from our disposition in Aguilar v. NLRC, supra, thus –

With regard to the award of financial assistance to petitioner, We
find that the same is not justified. Petitioner’s willful disobedience of the orders of her employer
constitutes serious misconduct. As We
held in the case of Del Monte Phils., Inc. vs. NLRC (188 SCRA 370 [1990]),
“henceforth separation pay shall be allowed as a measure of social justice
only in those instances where the employee is validly dismissed for causes other
than serious misconduct or those reflecting on his moral character.”
Hence, the employer x x x x may not be required to give the petitioner
separation pay, or financial assistance, or whatever other name it is called,
on the ground of social justice.

In fine, petitioner’s employment with PHILCOMSAT for 19 years cannot save him in the same way as the 23
years of Aguilar with her employer.

WHEREFORE the assailed decision is AFFIRMED except as
regards the award of financial assistance which is ordered deleted.

SO ORDERED.

Padilla, (Chairman), Davide, Jr., Quiason, and Kapunan, JJ., concur.

^[1]
G.R. No. 75907, 23 March 1992.

^[2]
G.R. No. 92859, 21 February 1993, 218 SCRA 293.

^[3]
Rule XIV, Book V.

^[4]
G.R. No. 90964, 10 February 1992, 206 SCRA 109, 114-115.

^[5]
Rollo, p. 20.

^[6]
Rollo, p. 21.

^[7]
Rollo, p. 12.

^[8]
G.R. No. 82868, 5 August 1991, 200 SCRA 158.

^[9]
No. L-24626, 28 June 1974,
57 SCRA 489.

^[10]
G.R. No. 62391, 8 June 1992, 209 SCRA
544.

^[11]
G.R. No. 100878, 2 December 1992, 216 SCRA 207.