EURO-LINEA, PHILS., INC., PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION AND JIMMY O. PASTORAL, RESPONDENTS.

This is a petition for
review on certiorari seeking to reverse and set aside the resolution of
public respondent,* NLRC, in Case No. RAB III-2-1589-84 entitled “Jimmy O. Pastoral v. Euro-Linea Phils.,
Inc.” affirming the decision of the Labor Arbiter** which
ordered the reinstatement of complainant with six months backwages.

The facts as found by the
Solicitor General are as follows:

On August
17, 1983, petitioner
hired Pastoral as shipping expediter on a probationary basis for a period of
six months ending February 18, 1984. 
However, prior to hiring by petitioner, Pastoral had been employed by Fitscher Manufacturing Corporation also as shipping
expediter for more than one and a half years. 
Pastoral was absorbed by petitioner but under a probationary basis.

On February
4, 1984, Pastoral
received a memorandum dated January 31, 1984 terminating his probationary employment
effective also on February 4, 1984 in view of his failure “to meet the
performance standards set by the company.” To contest his dismissal,
Pastoral filed a complaint for illegal dismissal against petitioner on February
6, 1984 (Rollo, pp. 45-46).

On July 19,
1985, the Labor
Arbiter found petitioner guilty of illegal dismissal, the dispositive
portion of the decision reading:

“WHEREFORE all things considered the respondent or its President
and/or General Manager should be as it is hereby ordered to reinstate
complainant with six months backwages.

“SO ORDERED.

“San Fernando, Pampanga, Philippines,
July 19, 1985.

EMILIO TONGIO

Labor Arbiter”

(Rollo, p. 32).

Petitioner appealed the
decision to the NLRC on August 5, 1985 (Rollo, pp. 33-39)
but the appeal was dismissed on July 16, 1986 (Resolution; Rollo,
p. 41).

Hence,
this petition.

Petitioner raises the
following errors of the NLRC (Rollo, p.
7):

a)     
The Labor Arbiter decided a question of law in a
manner contrary to the spirit and purpose of the law; and that

b)     
The Labor Arbiter gravely abused his discretion
by ignoring the material and significant facts in favor of employer.

In the resolution of October
29, 1986, the Second
Division of the Court without giving due course to the petition required the
respondents to comment (Rollo, p. 42).

The Solicitor General
submitted his comment on November 24, 1986 (Rollo, pp.
45-49), while petitioner through counsel filed its reply to public respondent
National Labor Relations Commission’s comment in compliance with the resolution
of December 10, 1986 (Rollo, p. 50).

In the resolution of February
18, 1987 (Rollo, 58), the
Court gave due course to the
petition and required the parties
to file their respective memoranda.

The only issue is whether
or not the National Labor Relations Commission acted with grave abuse of
discretion amounting to excess of jurisdiction in ruling against
the dismissal of the respondent, a temporary or probationary employee, by his employer (Petitioner).

Although a probationary
or temporary employee has a limited
tenure, he still enjoys the
constitutional protection of security of tenure.  During his tenure of employment or before his contract expires, he cannot be removed except for cause as provided for by law (Manila Hotel Corp. v. NLRC, 141 SCRA 169
[1986]).

This brings us to the
issue of whether or not private respondent’s dismissal was justifiable.

Petitioner claims that the dismissal is with cause, since respondent during his period of
employment failed to meet the performance standards set by the company; that
employers should be given leeway in the application of his right to choose
efficient workers (Rollo, p. 6) and that the
determination of compliance with the standards is the prerogative of the
employer as long as it is not whimsical; that it had terminated for cause the
respondent before the expiration of the probationary employment (Rollo, p. 70, Petitioner’s Memorandum).

The records, however, reveal the contrary.

Petitioner not only
failed to present sufficient evidence to substantiate the cause of private
respondent’s dismissal, but likewise failed to cite particular acts or
instances to show the latter’s poor performance.

As correctly argued by the Solicitor General –

“There is no dispute that failure to qualify as a regular
employee in accordance with reasonable standards prescribed by the employer is
a ground to terminate an employee engaged on a probationary basis (Art. 282,
Labor Code; Bk. VI, Rule I, Section 6(c), Implementing Rules, Labor Code).  In this case, petitioner alleged that
Pastoral was dismissed because he failed to meet its performance standard.  However, petitioner did not bother to cite
particular acts or instances in its position paper which show that Pastoral was
performing below par.  x x x

“Petitioner’s performance as shipping expediter can readily be
gauged from specific acts as may be gleaned from his duties enumerated by
petitioner to include processing of export and import documents for dispatch or
release and talking to customs personnel regarding said documents.” (p. 2, Annex “E” Petition).

Furthermore, what makes the dismissal highly suspicious is the
fact that while petitioner claims that respondent was inefficient, it retained
his services until the last remaining two weeks of the six months probationary
employment.

No less important is the fact that private respondent had been a
shipping expediter for more than one and a half years before he was absorbed by
petitioner.  It therefore appears that
the dismissal in question is without sufficient justification.

It must be emphasized 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.  (Remerco Garments Manufacturing vs. Minister of Labor, 135
SCRA 137 [1985]).  The right of an
employer to freely select or discharge his employees is subject to regulation
by the State, basically in the exercise of its paramount police power (PAL,
Inc. vs. PALEA, 57 SCRA 489 [1974]). 
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
(Phil. Apparel Workers Union v. NLRC, 106 SCRA 444 [1981]; Manila Hotel Corp.
v. NLRC, supra).

Finally, it is significant to note that in the interpretation of
the protection to labor and social justice provisions of the constitution and the labor laws and rules and regulations
implementing the constitutional mandate, the Supreme Court has always adopted
the liberal approach which favors the exercise of labor rights (Adamson &
Adamson, Inc. v. CIR, 127 SCRA 268 [1984]).

In the instant case, it is evident that the NLRC correctly
applied Article 282 in the light of the foregoing and that its resolution is not tainted with unfairness or arbitrariness
that would amount to grave abuse of discretion or lack of jurisdiction (Rosario
Brothers Inc. v. Ople, 131 SCRA 73 [1984]).

PREMISES CONSIDERED, the petition is DISMISSED for
lack of merit, and the resolution of the NLRC is AFFIRMED.

SO ORDERED.

Teehankee, C.J., Narvasa,
Cruz, and Gancayco,
JJ., concur.

* Presiding
Commissioner Guillermo C. Medina; Commissioners Gabriel M. Gatchalian
and Miguel B. Varela.

** Labor Arbiter Emilio G. Tongco.