FRANCISCO P. CANDO, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION AND PILIPINAS BANK, RESPONDENTS.

The propriety of the dismissal of an employee is put in issue in this
special civil action for certiorari.

The record of the case discloses that the herein petitioner
Francisco P. Cando had been employed with the herein private respondent Pilipinas Bank since August 1974.  Immediately prior to his dismissal from the
bank, the petitioner was the senior distributing clerk at the head office of
the respondent bank.  During the period
of his employment,
he was a ranking officer of the Pilipinas Bank
Employees Union.

In September 1984, the union declared a strike against the respondent bank which lasted
around a month.  Thereafter, then Minister of Labor Blas Ople issued an order enjoining the strike and directing the
striking workers to return to work. 
Inasmuch as the union refused to comply with the said order, the
Ministry of Labor and Employment issued another order dated October
29, 1984 instructing
the workers to return to work under the same terms and conditions obtaining
before the strike.  While the striking
employees followed the return-to-work order, the petitioner still failed to
report for work.  His absence was to last
for quite some time.

The petitioner managed to file an application to go on official
leave from November 5 to 21, 1984.  In fine, however, he did not report for work
from October 29, 1984 to
the end of February 1985 — a period of more than four months.  His
time cards for the month of December 1984 and January 1985 recited entries like “union matter”
and “hearing.” His time card for February 1985, however, was devoid of any entry.  All in all, his absences from October
29, 1984 up to the
end of February 1985 were
unauthorized, save for the brief period covering his application to go on
official leave.

On March 4, 1985,
the respondent bank instructed the petitioner to explain in writing, within
forty-eight (48) hours, why appropriate disciplinary measures should not be
taken against him in view of his numerous absences.  Inasmuch as the petitioner failed to submit
the written explanation sought from him
within the prescribed period, the matter was referred to the bank
president.  It was only on March 7,
1985 when the
petitioner submitted his written explanation. 
He contended that his numerous absences were prompted by various matters
affecting the union which needed immediate attention.

An ad hoc investigating committee was created for
the purpose of looking into these infractions committed by the petitioner.  After an administrative charge for gross and
habitual neglect in the performance of official duties had been filed against
the petitioner, the said committee informed him about the nature and the
possible consequences thereof.  The
committee also informed him that he must submit his reply to the said charges
within seventy-two (72) hours and that he had the option of requesting a formal
hearing where he may present evidence and avail of the assistance of counsel.

On April 10, 1985,
the petitioner submitted his written reply but did not expressly request a
formal hearing.

On April 24, 1985, the committee submitted its observations and
recommendations to the bank president. 
Accordingly, a memorandum dated May 2, 1985
was issued to the petitioner informing
him that he was terminated from his employment effective May 7,
1985 and that his
termination was for gross and habitual neglect in the performance of duties
through absences without official leave.

The petitioner filed a complaint for illegal dismissal against
the respondent bank before the National Labor Relations Commission.  The parties submitted their corresponding
position papers and formal hearings were conducted wherein the said parties
presented witnesses.  In due time, the
labor arbiter assigned to the case rendered a decision sustaining the
dismissal of the petitioner and dismissing the complaint.

Finding the decision of the labor arbiter unsatisfactory, the
petitioner elevated his case to the First Division of the Commission.  In a decision promulgated on November
17, 1989, the Commission noted that there was a sufficient basis for terminating the services
of the petitioner.^[1] Nonetheless, the Commission ordered the
respondent bank to pay the petitioner separation pay equivalent to one month salary for every year of
service.^[2]

On January 22, 1990,
the petitioner elevated the case to this Court. 
The petitioner contends that the decision of the Commission has no legal
basis.

As instructed by the Court, the Office of the Solicitor General
filed its comment on the petition seeking therein the dismissal of the
same.  Some time thereafter, the case was
deemed submitted.

It should be noted that labor cases are reviewed by the Supreme
Court through a special civil action for certiorari and
not by way of appeal.^[3]
The instant petition, however, is erroneously designated as a “petition
for review.” This error notwithstanding, and in the interest of
justice, the Court resolved to treat the instant petition as a special civil action
for certiorari.^[4] Thus, the only issue to be resolved
in this petition is whether or not the
respondent National Labor Relations Commission committed a grave abuse of
discretion in sustaining the dismissal of the petitioner.

After a careful evaluation of the entire record of the case, the
Court finds the petition devoid of merit.

It appears that the dismissal of the petitioner is based on his unjustified
absences for a number of months.  As an employee, the petitioner is expected to be
aware of the rules and regulations of the bank regarding leaves of absences.  As observed by the Commission, the absences
of the petitioner were not authorized.  On this score, his dismissal appears to be
warranted.

The petitioner contends that his dismissal is not justified
inasmuch as his absences were
authorized and/or condoned by his superiors. 
The contention is untenable.

In the labor arbiter’s decision dated May 25, 1988, which was reproduced in the
decision of the Commission dated November
12, 1989, it is stated:

“Anent the first question, the evidence on record shows that
complainant informed his supervisor, Mr. Joselito San
Miguel, by phone at least twice, the first being on October 29, 1984 and the
second being sometime in January 1985, that the former could not report for
work due to some urgent union business. 
However, it is also established that Mr. San Miguel told complainant to
file his leave in accordance with existing bank rules.

The record likewise shows that complainant came to see Mr. Leon
Tibia, Manager of the Cash Department, at least twice in November, 1984 and
informed the latter that he was not going to report for work because he was
busy attending to certain union matters. 
However, Mr. Tibia testified that while the same was true, he informed
complainant that he should follow
the bank’s rules and regulations pertaining to leave of absences.  Pursuant to Mr. Tibia’s directive,
complainant in fact filed his written application for leave but only for
covering the period November 5 to 21,
1984, which was duly approved by the former.

The record further shows that on at least three (3) occasions, Mr. Rogel Zenarosa, OIC of the
Treasury Division, casually met complainant and the former inquired when the
latter was going to report for work. 
Complainant replied that he will simply talk to Mr. Tibia about it.

From the facts cited above, it appears that only the absences
incurred by complainant on October
29, 1984 and November 5 to
21, 1984 were with the prior knowledge and consent of his superiors
as the same were duly approved by the latter. 
The other days that complainant was absent do not bear any prior
knowledge, consent and/or approval of any of his superiors.  There is no other documentary evidence on
record showing such approval.  It would
seem that complainant took it upon himself to incur said absences without complying
with existing bank rules and regulations despite the reminders given to him by
the superiors which negate the contention that such prolonged absences, were
tolerated.

It is understandable for respondent’s officers to just verbally
remind or warn complainant to follow bank rules on leave of absences, instead
of issuing him with written warnings as complainant was the Union President,
who is presumed to be the most knowledgeable among the rank-and-files of what
to do and not to do.  The undersigned
takes cognizance of the fact that in almost all business organizations with
existing labor unions, the latter’s officers are extended some degree of
leeway, particularly in the implementation of house rules.  This practice is consistent with maintaining
harmonious labor-management relationship.”^[5]

While the petitioner easily asserts that his absences were
brought about by his having to attend to union matters, his testimony before
the labor arbiter betrays otherwise.  We
quote with approval the following portion of the decision of the labor arbiter:

“Anent the second question of whether complainant’s (the
herein petitioner’s) xxx absences are justified, the undersigned finds that the
reasons ‘union matter’ and ‘hearing’ were being alluded to by complainant as an
anticipated shield against respondent’s (the herein private respondent’s) reactions
on his absences.  Indeed, on
cross-examination on the entries in his time cards, complainant grossly and glaringly betrayed his insincerity
since he could not recall any single case, criminal, administrative or labor or
any subject matter discussed and taken up in the reasoned out ‘union matter’ or
‘hearing.’ It is very unfortunate that during such cross-examination,
complainant consistently hid under the convenient cloak of ‘I cannot
recall.’”^[6]

His argument that his absences were nonetheless condoned by his
superiors has no legal basis.  The
respondent bank took steps to look into his alleged violation/s of bank rules and regulations governing leaves of absences.  An investigation ensued where he was
given the opportunity to defend himself.  In due time, disciplinary measures were taken against him.  Besides, the
petitioner did not show any proof of
the alleged condonation on the part of his
superiors.

All in all, the Court is convinced that there is substantial evidence to support the questioned decision of the
respondent Commission.  His violation of
the rules and regulations of the bank governing absences of employees was
demonstrated in the course of an investigation on the matter.  He was given a chance to
defend himself in the investigation. 
His testimony before the labor arbiter was, at the least, hardly in
accord with his explanation as to his absences. 
Inasmuch as the findings of facts made by the respondent Commission are
supported by substantial evidence, the same will be accorded respect and
finality.^[7]

WHEREFORE, in view of the foregoing, the instant petition
is hereby DISMISSED for lack of merit. 
The Court makes no pronouncement as to costs.

SO ORDERED.

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

^[1]
Page 42, Rollo.

^[2] Ibid.

^[3] Asiaworld Publishing House, Inc. v. Ople, 152 SCRA 219 (1987).

^[4] Dentech Manufacturing Corporation v. National Labor Relations Commission, 172 SCRA 588 (1989).

^[5]
Pages 32 to 34, Rollo.

^[6] Pages 61 and 62, Rollo.

^[7] Lacorte v. Inciong, 166
SCRA 1 (1988).