RUBBERWORLD (PHILS.), INC. AND ELPIDIO HIDALGO, PETITIONERS, VS. THE NATIONAL LABOR RELATIONS COMMISSION (THIRD DIVISION) AND NESTOR MALABANAN, RESPONDENTS.

This is a petition for certiorari under Rule 65 of the
Rules of Court seeking the annulment of the decision of the respondent National
Labor Relations Commission dated June 17, 1986 (p. 23, Rollo)
in NLRC NCR Case No. 6-2158-84 entitled “Nestor Malabanan
and Jonathan Transmil, Complainants, versus Rubberworld (Phils.), Inc. and Elpidio Hidalgo, Respondents”, reversing
the decision of the Labor Arbiter which dismissed the complaint for illegal
dismissal for lack of merit.

The antecedent facts are as follows:

Respondent Malabanan was employed by
petitioner Rubberworld (Phils.),
Inc. on September 25, 1978
as an ordinary clerk.  In May, 1980, he
was promoted to the position of production scheduler with a corresponding
salary increase.  He was again
transferred to the Inventory Control Section as stock clerk on September 1, 1983.

On April 6, 1984,
Elpidio Hidalgo,
the Plant I General Manager of petitioner company,
received a copy of the Financial Audit Report from the Internal Audit
Department of the company showing a significant material variance between the
year-end actual inventory and that of the Cards (SC)/EDP Control Records.  As a result thereof, Noel Santiago, Section
Head of the Inventory Control Section, where respondent Malabanan
was assigned, conducted an investigation of the reported discrepancies in the
stock cards upon the request of the Plant General Manager.  Santiago
then submitted his report to the general manager recommending the dismissal of
respondent Malabanan.

Consequently, Malabanan’s case was
endorsed to the Human Resources Division of petitioner
company, which conducted a reinvestigation on the matter and which
affirmed the recommendation of the Inventory Control Section Head for the
termination of employment of respondent Malabanan.

On June 6, 1984,
respondent Malabanan was dismisses by petitioner company.

On June 16, 1984, respondent Malabanan,
along with another complainant named Jonathan Transmil,
filed a complaint for unfair labor practice and illegal dismissal against
petitioner company alleging that they (respondent Malabanan
and complainant Transmil) were members of the monthly
salaried employees’ union affiliated with TUPAS; that petitioner company forced
them to disaffiliate from the union; and that due to their refusal to resign from
the union, they were ultimately dismissed from employment by petitioner
company.

Petitioner company on the other hand, denied complainants’
allegations and averred that respondent Malabanan’s
dismissal was due to gross and habitual neglect of his duty and not due to his
union affiliation.

During the hearing of the case, the other complainant, Jonathan Transmil withdrew from the case since he already found
another employment abroad.

On January 30, 1985,
the Labor Arbiter rendered a decision (pp. 17-22, Rollo),
the dispositive portion of which reads:

“WHEREFORE, premises considered, this case should be, as it is
hereby, DISMISSED, for lack of merit.

“SO ORDERED.”

Respondent Malabanan appealed
from the adverse decision to the respondent Commission.  On June 17, 1986, respondent Commission
reversed the appealed decision of the Labor Arbiter and stated, inter alia:

“Confronted with this factual backgrounds,
we find ourselves inclined to the view that the appealed decision merits a reversal.

“x x x.

“WHEREFORE, premises considered, the appealed decision should be, as it is hereby REVERSED.  Consequently, the respondents are directed to reinstate complainant
Nestor Malabanan to his former position as production
scheduler, with full backwages from the time he was illegally
terminated up to actual reinstatement, without loss of seniority rights and
benefits appurtenant thereto.

“SO
ORDERED.” (pp.
23-27, Rollo)

The petitioner company moved for a
reconsideration on the ground that the respondent Commission’s decision
is not in accordance with facts and evidence on record.  On July
23, 1986, the said motion for reconsideration was denied.

On September 3, 1986,
petitioner filed the instant petition contending that the respondent Commission committed grave abuse of discretion
amounting to lack of jurisdiction in reversing
the Labor Arbiter’s decision.

The two issues to be resolved in the instant case are:  (1) whether or not the dismissal of
respondent Malabanan is tainted with unfair labor
practice; and (2) whether or not a just and valid cause exists for the
dismissal of private respondent Malabanan.

Petitioner alleges that the National Labor Relations Commission
gravely erred in concluding that the demotion of Malabanan
from production scheduler to a stock clerk at the Stock and Inventory Section
was intended to discourage Malabanan from union
membership.  It argued that the Labor
Arbiter was correct in finding that the private respondent had not shown ample
proof to the effect that he was a member of a labor organization prior to his
transfer to another position.

We believe that the foregoing contentions are impressed with
merit.  Art. 248 of the Labor Code, PD
No. 442, as amended, provides:

“Art. 248.  Unfair labor
practices of employers. – It shall be unlawful for an employer to commit any of
the following unfair labor practices:

(a) To interfere
with, restrain or coerce employees in the exercise
of their right to self-organization;

“x x x.”

The question of whether an employee was dismissed because of his
union activities is essentially a question of fact as to which the findings of
the administrative agency concerned are conclusive and binding if supported by
substantial evidence.  Substantial
evidence has been defined as such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion. 
It means such evidence which affords a substantial basis from which the
fact in issue can be reasonably inferred (Philippine Metal Foundries, Inc. v.
Court of industrial Relations, et. al., No. L-34948-49, May 15, 1979, 90 SCRA 135).  The findings of the Labor Arbiter on the
non-existence of unfair labor practice on the part of the company are more in
accord and supported by the evidence submitted by the parties in the instant
case, to wit:

“Complainant had
stated that he was a
member of the monthly salaried employees union affiliated with TUPAS.  He, however, offered no proof to support his
allegation.  In fact, no evidence was
presented to prove the existence of
such union.  We [note] from the
records that, as the usual practice, in cases like this one, complainant is
usually supported by the union of which he is a member.  And ordinarily, the
union itself is impleaded as a co-complainant.  Such circumstances, surprisingly, [are] not
present in this case.  In fact,
complainant categorically alleged that he had solicited the services of the
PAFLU Labor Union in filing this case. 
It is, indeed, surprising that complainant had to solicit the help of a labor
union (PAFLU) of which he was not a member instead of soliciting the aid of the
labor union (TUPAS) of which he was allegedly a member.  These circumstances alone [destroy] the
credibility of complainant’s allegations.” (p. 21, Rollo).

Nowhere in the records can We find that
the company actually performed positive acts to restrain the union
participation of private respondent.  For
one, it is doubtful whether Malabanan was really
engaged in the organization of a labor union affiliated with federation
TUPAS.  The only evidence presented by
him to prove this contention is his affidavit and that of his father.  It is therefore, not in accordance with
ordinary experience and common practice that the private respondent pursued his
battle alone, without the aid and support of his co-members in the union and
his federation especially in a case
of serious nature as this one involving company intervention with union
activity.

As a rule, it is the prerogative of the company to promote,
transfer or even demote its employees to other positions when the interests of
the company reasonably demand it.  Unless
there are instances which directly point to interference by the company with
the employees’ right to self-organization, the transfer of private respondent
should be considered as within the bounds allowed by law.  Furthermore, although private respondent was
transferred to a lower position, his original
rank and salary remained undiminished, which fact was not refuted or questioned
by private respondent.

In view of the foregoing conclusions of the
Labor Arbiter, We are compelled to agree with the latter that the petitioner
company did not commit any
unfair labor practice in transferring and thereafter dismissing private
respondent.

The remaining issue to be
resolved on this point is whether the dismissal of respondent Malabanan
was for a just and lawful cause.  Article
282 of the Labor Code, as amended, provides:

“Article 282.  Termination by employer.  An employer may terminate an employment for
any of the following just causes:

x x x

b) Gross and habitual neglect by the employee of his duties;

x x x.”

Petitioner contends that
private respondent Malabanan was guilty of gross
negligence when he caused the posting of incorrect entries in the stock card
without counter checking the actual movement status of the items at the
warehouse, thereby resulting into unmanageable inaccuracies in the data posted in the stock cards.  The respondent Commission correctly ruled:

“Penultimately, even assuming for
the sake of argument that herein complainant “posted entries in the stock
card without counter checking the actual movement status of the items at the
warehouse, thereby resulting in an inaccurate posting of data on the stock
cards”, to our impression does not constitute as a just cause for
dismissal.  Records show that he was only
transferred to the Inventory Control Section on September 1, 1983 and was not so familiar and experienced
as a stock clerk, and prior to his transfer, the record shows no derogatory
records in terms of his performance.  His
failure to carry out efficiently his duties as a stock clerk is not so gross
and habitual.  In other words he was not
notoriously negligent to warrant his severance from the service.  Considering that there is nothing on record
that shows that he wilfully defied instructions of
his superior with regards to his duties
and that he gained personal benefit of the discrepancy, his dismissal is
unwarranted” (p. 26, Rollo).

It does not appear that
private respondent Malabanan is an incorrigible
offender or that what he did inflicted serious damage to the company so much so
that his continuance in the service would be patently inimical to the
employer’s interest.  Assuming, in
gratia argumenti
that the private respondent had indeed committed the said mistakes in the
posting of accurate data, this was only his first infraction with regard to his
duties.  It would thus be cruel and
unjust to mete out the drastic penalty of dismissal, for it is not
proportionate to the gravity of the misdeed.

In fact, the promotion of
the private respondent from the position of ordinary clerk to production
scheduler establishes the presumption that his performance of his work is
acceptable to the company.  The
petitioner even admitted that it was due to heavy financial and business
reverses that the company assigned the private respondent to the position of
Stock Clerk and not because of his unsatisfactory performance as production
scheduler (p. 6, Rollo).  It has been held that there must be fair and
reasonable criteria to be used in selecting employees to be dismissed (Asiaworld Publishing House, Inc. v. Ople,
No. L-56398, July 23, 1987, 152 SCRA 219).

It is worthy to note that the prerogative of management to
dismiss or lay-off an employee must be done without abuse of discretion, for
what is at stake is not only petitioner’s position, but also his means of
livelihood.  This is so because the
preservation of the lives of the citizens
is a basic duty of the State, more vital than the preservation of corporate
profits (Euro-Linea, Phils.,
Inc. v. NLRC, L-75782, December 1, 1987, 156 SCRA 79).

The law regards the worker with compassion.  Our society is a compassionate one.  Where a penalty less punitive would suffice,
whatever missteps may be committed by the worker should not be visited by the
supreme penalty of dismissal.  This is
not only because of the law’s concern for the working man.  There is in addition, his family to
consider.  After all, labor
determinations should not only be secundum rationem but also secundum caritatem
(Almira, et al., v. BF Goodrich Philippines, Inc., et
al., G.R. No. L-34974, July 25, 1974,
58 SCRA 120).

ACCORDINGLY, the petition is DISMISSED for lack of
merit.  However, the decision of the
public respondent is hereby MODIFIED to the effect that petitioner company is
ordered to reinstate private respondent Nestor Malabanan
to the position of stock clerk or substantially equivalent position, with the
same rank and salary he is enjoying at the time of his termination, with three
years backwages and without loss of seniority rights
and benefits appurtenant thereto.

Should the reinstatement of the private respondent as herein
ordered be rendered impossible by the supervention of
circumstances which prevent the same, the petitioner is further ordered to pay
private respondent separation pay equivalent to one (1) month’s salary for
every year of service rendered, computed at his last rate of salary.

SO ORDERED.

Narvasa, (Chairman), Cruz, Gancayco, and Griño-Aquino, JJ., concur.