EDUARDO PATNA-AN, PETITIONER, VS. THIRD DIVISION, NATIONAL LABOR RELATIONS COMMISSION AND LEPANTO CONSOLIDATED MINING COMPANY, RESPONDENTS.

This is a petition for certiorari seeking reversal
of the decision of public respondent National Labor Relations Commission dated
November 2, 1989, in NLRC Case No. RAB I-0016-86, entitled “Eduardo
Patna-an, Complainant-Appellee v. Lepanto Consolidated Mining Company,
Respondent-Appellant,” which set aside the decision of the Executive Labor
Arbiter dated November 25, 1988; and its resolution dated February 2, 1990,
which denied the motion for reconsideration.

The antecedent facts are, as follows:

Petitioner Eduardo Patna-an has been employed with private
respondent Lepanto Consolidated Mining Company as lead miner since September
13, 1976. On January 21, 1986, he filed
a complaint for illegal dismissal against respondent company before the
Executive Labor Arbiter. He alleged
therein that on May 26, 1984, while he was going down the manway at 900 Level
of respondent company’s underground mines located in Lepanto, Mankayan,
Benguet, its security guards stopped him. He was subjected to a body search but nothing was found thereon. One of the security guards, Razon, who was
then holding something wrapped in cellophane, confronted him with the
accusation that the object was taken from him. When he denied the accusation, he was brought to the investigation
office. At the office, the investigators
were unable to extract a confession from him. He claimed that the charge against him was fabricated by the guards in
order to collect cash rewards or to receive a commendation or promotion from
respondent company. Likewise, he
asserted that his dismissal was effected without due process.

Mario Acay, another worker, claimed in his affidavit that nothing
was found on the body of petitioner Patna-an by the security guards. He added that he, too, while on the way to
the Tubo shaft, was frisked by members of the mine patrol but he was allowed to
proceed when nothing was found on him.

Respondent company refuted the version of petitioner
Patna-an. According to it, on May 26,
1984, at about 9:00 in the evening, security guards Ernesto Fagela, Bienvenido
Lasam, Jr. and Constancio Razon, Jr., were on patrol at 145 GZ HZ, 900 Level, a
highly restricted area. At about 10:00,
while the guards had their lights switched off and were observing the area,
they noticed a worker, later identified as petitioner Patna-an, descending the
manway from the stope of 145 GZ HZ. Thereupon, the guards switched their lights on. They saw an object tucked in petitioner
Patna-an’s miner’s belt. He tried to
run away but the guards held him. Upon
inspection, Razon found out that the objects, which were wrapped in cellophane,
were ground and pulverized stones believed to be highgrade. Petitioner Patna-an was brought to the
Integrated National Police Headquarters for investigation. As a result, a criminal complaint for
attempted highgrading was filed against him before the Municipal Trial Court of
Mankayan, Benguet, docketed as Criminal Case No. 2423 (R-11). He was placed under preventive suspension
for thirty days. A notice of
termination of employment was served on him, which required that he answer the complaint within three days from receipt
thereof. He did not submit an
answer. He was dismissed from
employment not only for highgrading but for having been found in an area which
was not his assigned workplace and restricted to employees like him. All these constituted grounds for
termination of his employment, being violations of rules promulgated by
management.

In respondent company’s position paper, it enumerated the
offenses previously committed by petitioner Patna-an (pp. 25-26, Rollo):

“a. On March 29
up to April 14, 1977, complainant was preventively suspended for 17 days
without pay for violation of company rules and regulations, Rule 1, par h,
dishonesty, theft and/or robbery after he was apprehended while in possession of
highgrade ores at 1030 Level portal at about 3:05 in the afternoon of March 28,
1977; that he was supposed to have been dismissed from the employ of the
respondent had it not been for his pleas that he be given one last chance;

“b. On November 21, 1977, complainant was warned far his consistent
irregularity in his attendance;

“c. On January 22, 1990, complainant was warned for being absent
without official leave;

“d. On September 3,
1981, complainant was again warned for being absent without official leave
committed on August 28, 1981;

“e. From November 26
up to December 9, 1981, complainant was suspended for 15 days without pay for
theft of 15 pieces of lumber from langan stock pile comitted (sic) on October
18, 1981; that complainant was not dismissed because of his promise not to
violate any company (or) regulation again;

“f. On May 29, 1982,
complainant was again warned for being absent without official leave committed
on May 21, 1982;

“g. On November 9,
1982, complaint was again warned for being absent without official leave
committed on November 3, 1982. (At pp.
1-2).”

The Executive Labor Arbiter was “convinced of the
truthfulness of the narration of the events which transpired on May 26, 1984,
as presented by the witnesses of the respondent” (p. 26, Rollo). She explained that (ibid):

“There is no reason to disbelieve the story of security guards
Fagela, Lasam and Razon that they caught the complainant in a restricted
area. Although the complainant would
want the undersigned to accept his version that the guards made up the story in
order to collect (on) cash rewards or be promoted or commended, the attempt
fails because he did not present any evidence to prove that the guards did
receive rewards or were commended or promoted. His bare denial, which is only to be expected from one who would lose
his job if found guilty of any misdemeanor, cannot be accepted in the face of
the positive statement of the guards.”

Nevertheless, on November 25, 1988, the Executive Labor Arbiter
held respondent company guilty of illegal dismissal. The dispositive portion of its decision, reads (p. 29, Rollo):

“WHEREFORE, premises considered, judgment is hereby rendered:

“1. Declaring the respondent guilty of illegal dismissal; and

“2. Ordering the respondent:

“a. To reinstate the complainant to his former position, without loss of
seniority rights;

“b. To pay the complainant three (3)
years backwages, without qualification or deduction, to be computed on the
basis of the salary he last received at the time of his dismissal; and

“c. To pay counsel for the
complainant attorney’s fees of ten percent of the amount of wages recovered.

“SO ORDERED.”

She expressed the opinion that (pp. 27-28, Rollo):

“x x x, the allegation of the guards that they believed that
the ores confiscated from the complainant were highgrade cannot be acknowledged
as evidence of the fact in the absence of a certification from an expert that
the same were found to be highgrade. The guards are not competent witnesses to attest to the same. Their suspicion that the pieces of ore the
complainant hid in his belt were highgrade
cannot be the basis of a moral conviction that the latter committed the offense
of highgrading.

“Highgrading, or theft of
gold, is committed when a person removes, collects or gathers
gold-bearing ores or rocks in place or extracts or removes the gold from such
ores or rocks (PD 581). Complainant
cannot be adjudged to have committed the offense of highgrading absent any
evidence that the rocks he tried to spirit out from the underground were
gold-bearing ores.

“Although the respondent would assert that the fact that the
complainant was found in a restricted area was reason enough to dismiss him,
the undersigned believes that such offense could only have warranted his
suspension, but not his dismissal because it had not been shown that he was
there engaged in highgrading. Suspension of thirty days was enough to send a message strong and clear
to the complainant.”

Respondent company filed an appeal before public respondent
National Labor Relations Commission. On
November 2, 1989, respondent NLRC set aside the decision of the Executive Labor
Arbiter and dismissed the complaint filed by petitioner Patna-an (pp. 30-34, Rollo. In support thereof, it said (p. 33, Rollo):

“It appears incomprehensible why the Labor Arbiter would make
a complete turnaround and declare complainant illegally dismissed, solely on
the basis of respondent’s failure to present certification from an expert that
the ores confiscated from complainant were highgrade. The Labor Arbiter could not and should not have missed the
glaring facts: that complainant herein
consummated the act of highgrading, was caught,
interrogated and given opportunity to be heard and subsequently found
guilty. In short, his violations of company
rules and regulations and breach of the trust and confidence of his employer,
were fully substantiated by evidence. Such acts should certainly have warranted a finding of dismissal for
cause.”

Hence, this petition.

Petitioner Patna-an imputes grave abuse of discretion on the part
of respondent NLRC 1) in reversing the decision of the Executive Labor Arbiter
dated November 25, 1988; and 2) in rendering its decision dated November 2,
1989 and its resolution dated February 2, 1990, which are contrary to the Constitutional provision guaranteeing
security of tenure to the working man, Batas Pambansa Blg. 130 and its
implementing rules and regulations and the decisions of this Court.

As regards the first issue, petitioner Patna-an maintains that
before it can be said that indeed, he is guilty of highgrading, it must be
established by convincing evidence that the ores which were allegedly taken
from him is found to be highgrade. Respondent company failed to do so.

Respondent company contends that what is required in dismissal
cases is mere presence of a basis for loss of trust and confidence. It is not really indispensable that the ores
recovered from petitioner Patna-an be first assayed before he can be terminated
from employment.

The Office of the Solicitor General is in conformity with
petitioner Patna-an. It adds that he was dismissed from employment by
respondent company on a mere suspicion that he was engaged in highgrading or
theft of gold.

Respondent NLRC, in support of its questioned decision and resolution, argues that the act done
by petitioner Patna-an was patently inimical to the interest of respondent
company for which the latter cannot be compelled to retain the former in its employ.

We sustain the questioned decision and resolution of respondent
NLRC.

The job of petitioner Patna-an as a miner, although generally
described as menial, is, nevertheless, of such nature as to require a
substantial amount of trust and confidence on the part of respondent
company. The requirement that there be
some basis or reasonable ground to believe that the employee is responsible for
the misconduct is sufficiently met in the case at bar. Petitioner Patna-an’s behavior rendered him
unworthy of the trust and confidence demanded by his position. Considering that an employer is entitled to
terminate the services of employees for just causes and that stealing and other
forms of dishonesty have been held to be sufficient grounds for dismissal, as a
measure of self?protection, respondent company was justified in dismissing
petitioner Patna-an (Auxilio, Jr. v. NLRC, et al., G.R. No. 82189, August 2,
1990, 188 SCRA 263; Philippine Long Distance Telephone Co. v. NLRC, G.R. No.
59724, May 30, 1983, 122 SCRA 618; Commercial Motors Corporation v.
Commissioners, et al., G.R. No. 74762, December 10, 1990, 192 SCRA 191; Anscor
Transport and Terminals, Inc. v. NLRC, et al., G.R. No. 85894, September 28,
1990, 190 SCRA 147). As a rule, this
Court leans over backwards to help workers and employees continue with their
employment or to mitigate the penalties imposed on them, however, acts of
dishonesty are a different
matter (Firestone Tire & Rubber Co. of the Phil. v. Lariosa, et al., G.R.
No. 70479, February 27, 1987, 148 SCRA 187).

The argument advanced by petitioner Patna-an and the Office of
the Solicitor General that “before it can be said that indeed, he is
guilty of highgrading, it must be established by convincing evidence that the
ores which were allegedly taken from him is found to be highgrade” (supra)
is utterly fallacious. The employer’s
evidence in dismissal cases is not required to be of such degree as is required
in criminal cases, i.e., proof beyond reasonable doubt. Substantial evidence will suffice (see
Commercial Motors Corporation v. Commissioners, et al., supra). Thus, it is not imperative that all the
elements of highgrading or theft of gold, as defined in Section 1 of
Presidential Decree No. 581,*
exist as prerequisite to respondent company’s loss of trust and confidence on
petitioner Patna-an. The established
facts that he was apprehended by respondent company’s security guards with
ground and pulverized stones tucked in his miner’s belt and that he was found
in an area which was not his assigned workplace and highly restricted to
employees like him reasonably generated belief by respondent company that he is
guilty of highgrading.

The Office of the Solicitor General argues further that
“[t]he penalty of dismissal is unconscionable considering that petitioner
had been working continuously with and for Lepanto for the past eight (8)
years.” (p. 93, Rollo)

Perhaps, viewed by itself as an isolated incident in petitioner
Patna-an’s service, the misconduct that he committed does not warrant so severe
a penalty as dismissal. However, his
misconduct is not an isolated circumstance in his eight (8) years of employment
with respondent company. Unrebutted
evidence on record shows that the following offenses were committed by him
previously: (1) from March 29, 1977 up
to April 14, 1977, he was preventively suspended for seventeen (17) days
without pay for dishonesty, theft and/or robbery after he was apprehended while
in possession of highgrade ores; and (2) from November 26, 1981 up to December
9, 1981, he was suspended for fifteen (15) days without pay for theft of
fifteen (15) pieces of lumber. In both
instances, he was not dismissed from employment because of his promise not to
violate any company regulations again. In an act of generosity, respondent company chose to give him another
clean slate for the present misconduct and maintained him as a miner. Yet, he still duplicated his previous
infractions, for which his services were terminated finally. There is more reason for dismissal where the
acts of misconduct and willful breach of trust are repeatedly committed by an
employee (Philippine Long Distance Telephone Co. v. NLRC, G.R. No. 59724, May
30, 1983, 122 SCRA 618; National Service Corporation v. Leogardo, Jr., G.R. No. 64296, July 20, 1984, 130 SCRA 502;
Piedad v. Lanao del Norte Electric Cooperative, Inc., et al., G.R. No. 73735,
August 31, 1987, 153 SCRA 500).

It is unnecessary to discuss the second issue because by not
appealing the decision of the Executive Labor Arbiter, petitioner Patna-an is
already bound by her finding that there was no denial of due process.

Aside from the foregoing ratiocination on the merits of this
case, Our original and exclusive jurisdiction to review a decision or
resolution of respondent NLRC, in a petition for certiorari under
Rule 65 of the Rules of Court, does not normally include the correctness of its
evaluation of the evidence, but is confined to issues of jurisdiction or grave
abuse of discretion. It was thus
incumbent upon petitioner Patna-an to satisfactorily establish that respondent
NLRC acted capriciously and whimsically, in total disregard of evidence
material to or even decisive of the controversy, in order that the
extraordinary writ of certiorari will lie. However, nowhere in his petition and
memorandum can We find any acceptable demonstration that respondent NLRC acted
either with grave abuse of discretion or without or in excess of its
jurisdiction (see Sajonas, et al. v. NLRC, et al., G.R. No. L-49286, March 15,
1990, 183 SCRA 182).

ACCORDINGLY, the petition is hereby DISMISSED. The decision of the National Labor Relations
Commission dated November 2, 1989 and its resolution dated February 2, 1990 are
AFFIRMED.

SO ORDERED.

Narvasa, C.J., (Chairman), Cruz, and
Grino-Aquino, JJ., concur.

*
Section 1. Any person who shall take
gold-bearing ores or rocks from a mining claim or mining camp or shall remove,
collect or gather gold-bearing ores or rocks in place or shall extract or
remove the gold from such ores or rocks, or shall prepare and treat such ores
or rocks to recover or extract the gold contents thereof, without the consent
of the operator of the mining claim, shall be guilty of “highgrading”
or theft of gold x x x.