CARMENCITA G. VISPERAS, PETITIONER, VS. HON. AMADO GAT. INCIONG, DEPUTY MINISTER OF THE MINISTRY OF LABOR AND BANCO FILIPINO SAVINGS AND MORTGAGE BANK, RESPONDENTS.

This is a Petition for
review on Certiorari of the Decision of respondent Deputy Minister of
Labor in NLRC Case No. RB-IV-12151-77, entitled Carmencita G. Visperas vs.
Banco Filipino Savings and Mortgage Bank, giving due course to the bank’s
application for clearance to dismiss complainant, petitioner herein.

The records show that, on
February 19, 1977, an incident occurred in the second floor premises of Banco
Filipino (respondent Bank) at its Mandaluyong Branch, between two of its
tellers, namely:  Carmencita Visperas
(petitioner) and Cesar Ramirez.

At around 11:00 a.m. of
that day Orlindo Bartolome, another bank employee, requested petitioner to
prepare a debit memo for a dollar check received five days before, or, on
February 14, 1977.  Normally, the debit memo
should have been prepared on the same day of the transaction, pursuant to bank
practice.  The petitioner did, as
requested, and had it cleared by Mrs. Ofelia Cruz, bank supervisor, who was
having lunch with Cesar Ramirez and two other employees.  The petitioner inquired who the teller was
who had failed to prepare the debit memo. 
Ramirez admitted that there was a debit memo prepared but he left it
unposted because at that time the bank was ope­rating off-line and that he left
the said debit memo with a bookkeeper in the afternoon shift, which re­mained
unposted.  To this, the petitioner
commented, “tarantado”.  In
their respective Affidavits executed on April 18, 1977 and June 28, 1977^[1],
petitioner and Ramirez admitted that the comment was made in a joking
manner.  The petitioner went back to her
work and Ramirez just kept quiet and finished his meal hurriedly.

Thirty minutes later,
Ramirez approached peti­tioner’s desk and told her he resented her having
revealed his mistakes and use of
the word “tarantado” in
front of their supervisor.  Petitioner
made no apology although she said that the word is her ordi­nary
expression.  Other employees also poked
fun at the incident with their respective comments.  Mrs. Cruz admonished everyone saying, “Pssst tama na yan.” They momentarily
stopped.  Ramirez, however, sat oppo­site
the petitioner with dagger looks.  This
incensed the petitioner who then remarked: 
“Alam ko matapang
ka mangyari security guard ka dati.” Ramirez considered it
an insult and Ramirez slapped petitioner on the right side of her head hitting
her right ear and her eyeglasses.  The
latter retaliated by throwing a stapler without however hitting him.  Before Ramirez could slap her again,
cooler heads intervened.

After the incident, Mr.
Pedrito Ledesma, the Branch Manager, asked the petitioner and Ramirez to submit
written explanations.  Other employees,
who witnessed the incident were also asked to submit their own statements.  After consultation with Mrs. Cruz, Mr.
Ledesma called the petitioner and Ramirez and suggested that they resign.  Ramirez, who was on pro­bationary status,
resigned, while the petitioner, who was a regular employee since January 18,
1974, did not.

The petitioner received a
letter of termination effective March 16, 1977, “for violation of company
rules and regulations on office relationship”, toge­ther with a copy of
the Bank’s application for clearance to dismiss, filed on March 15, 1977 with
the Regional Office, Ministry of Labor.^[2]

The petitioner filed an Opposition to the appli­cation for
clearance to dismiss.

On July 25, 1977, Labor Arbiter Ruben Aquino rendered a decision
upholding the right of respondent Bank to terminate the services of the
petitioner on the ground that she had violated company rules and regulations on
office relationship, but inasmuch as the clearance application was not filed at
least ten days prior to the intended date of dismissal, the re­spondent Bank
was ordered to pay one-half-month salary for every year of petitioner’s
service, as severance pay.^[3]

On appeal, the National Labor Relations Commission (NLRC)
reversed the Labor Arbiter, finding that the acts complained of did not justify
the termination of the petitioner and directed a thirty-day suspension without
pay as a disciplinary measure.  It also
or­dered the reinstatement of petitioner to her previous position without loss
of seniority rights and back salaries beginning thirty days after she was out
of work until the date of her actual reinstatement.^[4]

Respondent Bank appealed to the Office of the Minister of
Labor.  On March 14, 1979 Deputy Minister
Amado G. Inciong reversed the decision of the NLRC and reinstated the Labor
Arbiter’s decision granting respondent Bank’s clearance application to
terminate.^[5]

Petitioner received a copy of the decision on March 21, 1979 and
filed a Motion for Reconsideration on
March 30, 1979, which was denied by respondent Inciong.  Petitioner received the Order of denial on
July 20, 1979.^[6]

On August 27, 1979,
petitioner availed of the present recourse.

We uphold the view of the
NLRC that petitioner’s dismissal is unwarranted for being too severe a pe­nalty.

The Bank rules and
regulations that petitioner is alleged to have violated read as follows:

“x x x Willful refusal by a staff
member to carry out official verbal or written orders or instructions of his
supervisors or officers shall constitute sufficient grounds for dismissal.

x x x Although misunderstandings can­not be
entirely eliminated in a work group as large as ours, shouting at one another
and physical violence is never justifiable and will be subject to disciplinary
action.  Any disrespect, discourtesy,
insult or use of foul language towards the bank’s clients and depositors or
towards any officer, supervisor, or staff member shall be sufficient ground for
dismissal from the service.”^[7]

The verbal order which
petitioner allegedly wilfully refused to carry out is the admonition of her
supervisor Mrs. Cruz, “Pssst
tama na yan.” Petitioner’s
remark uttered thereafter to Ramirez, however, that “Alam ko matapang ka mangyari security
guard ka dati”^[8],
was not a “willful refusal” to heed the supervisor’s order to stop
talking.  It was merely a reaction by the
petitioner to the annoying presence of Ramirez, who was visibly angry, in front
of her desk.  It cannot be characterized
as a wrong­ful and perverse mental attitude rendering the employee’s act inconsistent with proper
subordina­tion.^[9]

Upon hearing the remark, Ramirez thought that petitioner was
belittling his humble background,
so he slapped her.  Petitioner’s act in
throwing the stapler (which she denies) was merely in retaliation for the
physical violence upon her person and self-respect.

By uttering the word “tarantado”,
respondent Bank alleged that this violated the rule against
insulting or using foul language towards a fellow staff member.  As stated by the petitioner in her Affidavit,
however, she meant it only as a joke^[10],
besides the fact that it is her usual expression.  In his Affidavit, Ramirez also admitted that
he took it as a joke at first but on second thought resented the expression.^[11]

Besides, respondent Bank’s rules also provide that:

“x x x In the implementation of
penalties, the past performance, job dedication and proven loyalty to the bank
of a staff member shall be given due recognition and consi­deration.”^[12]

Petitioner has served respondent Bank for three years with
apparently a good record since two months before the unfortunate incident she
was promoted from junior teller to regular teller.  In addition, she has rendered the most
overtime work among the tellers and was awarded excellence in attendance.  The continuance of her service would not be
inimical to the interest of the bank.  In
fact, the incident, in a way, discloses petitioner’s dedication to the job,
for, upon finding that there was an error com­mitted in connection with the
work, she called the attention of the
person concerned in order to avoid a repetition.^[13]

Pointedly applicable to
the issues at hand is the ruling enunciated in Mercury Drug Co., Inc. vs. Court
of Industrial Relations:

“Even if it were conceded that private respondent Dayao
verbally quarrelled with the former president of their employees’ association
in the presence of manager Mariano Que and that both ignored the latter’s admonition
for them to stop quarrelling; at most the sane was discourtesy which was not
intended considering the origin of their quarrel – the failure of Ranin, former
president of the labor union, to fight for overtime pay for services ren­dered
on Sundays and holidays.  Such
discourtesy, at most, merits merely a reprimand or admonition but not outright
dismissal, since it did not involve the efficiency nor honesty of private re­spondent
Dayao.  The fact that Dayao had been in
the service for five years and ten months, during which period of time he was
promoted from driver to delivery man, to checker and finally to assistant chief
checker in the Checking Department with a salary of P225.00 a month demons­trates
his efficiency, competence and trustworthiness.”^[14]

As in the above case, dismissal herein is too harsh a
penalty.  A penalty less punitive should
have been proper.  We are in accord with
the decision of the NLRC that a thirty-day suspension without pay is a
commensurate disciplinary measure.

There is another point. 
Respondent Bank’s appli­cation for clearance to dismiss was filed with
the Ministry of Labor only on March 15, 1977, or the same day that petitioner
received the letter of termination.  The
Rules and Regulations implementing the Labor Code provided that said application should be filed at least ten days before
the intended dismissal and a dismissal without prior clearance is conclusively
presumed to be without a just cause.^[15]

In fine, the Court finds that respondent Deputy Minister
committed grave abuse of discretion when he set aside the Decision of the NLRC
and affirmed the Order of the Labor Arbiter. 
Petitioner is entitled to reinstatement with back wages from the
termination of her 30-day suspension up to the equivalent of three years.^[16]

WHEREFORE, the Decision of respondent Deputy Minister Amado G. Inciong
affirming the Decision of Labor Arbiter Ruben B. Aquino is hereby REVERSED and
the Decision of the National Labor Relations Commission, Second Division, is
hereby AFFIRMED.

Respondent Bank is ordered to reinstate the peti­tioner,
Carmencita G. Visperas, to her previous posi­tion, without loss of seniority
rights, and with back wages from April 16, 1977 to April 15, 1980 (equivalent
to 3 years).

No pronouncement as to
costs.

SO ORDERED.

Teehankee, (Chairman), Plana, Vasquez, Relova, and Gutierrez, Jr., JJ., concur.

^[1]
Annex “D” & “E”, Petition.

^[2]
p. 47, Rollo.

^[3]
p. 53, ibid.

^[4]
p. 72, ibid.

^[5]
p. 24, ibid.

^[6]
No. IV of Petition; p. 7, ibid.

^[7]
pp. 13-15, ibid.

^[8]
pp. 54 & 55, ibid.

^[9]
Batangas Laguna Tayabas Bus Co. vs. Court of Appeals, 71 SCRA 470
(1976).

^[10]
p. 35, Rollo.

^[11]
p. 39, ibid.

^[12]
p. 16, ibid.

^[13]
Affidavit of Carmencita G. Visperas; p. 35, ibid.

^[14]
56 SCRA 694, 708 (1974).

^[15]
Secs. 2 & 3, Rule XIV.

^[16]
Pepito vs. Secretary of Labor, 96 SCRA 454 (1980).