J.A.B. Bulao & Associates

CASE 2014-0043: RAY SHU, PETITIONER, – VERSUS – JAIIVIE DEE, ENRIQUETO MAGPANTAY, RAMON MIRANDA, LARRY MACILLAN, AND EDWIN SO, RESPONDENTS. (G.R. NO. 182573, 23 APRL 2014, BRION, J.) SUBJECT/S: PRELIMINARY INVESTIGATION; NATURE OF NBI INVESTIGATION; PROBABLE CAUSE; VALUE OF QUESTIONED DOCUMENTS REPORT; REVIEW OF DOJ RULING. (BRIEF TITLE: SHU VS. DEE ET AL)

DISPOSITIVE:                                          

“WHEREFORE, we GRANT the petition and REVERSE and SET ASIDE the decision of the Court of Appeals dated June 19, 2007 and its resolution dated April 4, 2008.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

THE RESPONDENTS ARGUE THAT THEY WERE DENIED DUE PROCESS BECAUSE THEY WERE NOT INFORMED BY THE DOJ ABOUT THE PENDENCY OF PETITIONER’S APPEAL. IS THEIR CONTENTION CORRECT?

NO. BY FILING A MOTION FOR RECONSIDERATION, RESPONDENTS  AVAILED OF THEIR RIGHT TO GIVE THEIR SIDE. ANY PREVIOUS DEFECT IS CURED.

WHAT IS THE ESSENCE OF DUE PROCESS?

SIMPLY THE OPPORTUNITY TO BE HEARD.

IS ABSENCE OF DUE NOTICE PROHIBITED?

NO. IT IS THE LACK OF OPPORTUNITY TO BE HEARD THAT IS PROHIBITED.

WHEN IS THERE SUFFICIENT COMPLIANCE OF DUE PROCESS?

WHEN A PARTY IS GIVEN A CHANCE TO BE HEARD. FOR EXAMPLE: THROUGH THEIR MOTION FOR RECONSIDERATION.

 The essence of due process is simply the opportunity to be heard. What the law prohibits is not the absence of previous notice but its absolute absence and lack of opportunity to be heard.   Sufficient compliance with the requirements of due process exists when a party is given a chance to be heard through his motion for reconsideration.28  

In the present case, we do not find it disputed that the respondents filed with the Secretary of Justice a motion for reconsideration of her resolution. Therefore, any initial defect in due process, if any, was cured by the remedy the respondents availed of.

RESPONDENTS ARGUE THAT THEY WERE DENIED DUE PROCESS DURING THE NBI INVESTIGATION BECAUSE THEIR SIDE WAS NOT TAKEN. IS THEIR ARGUMENT CORRECT?

 THE NBI FINDINGS ARE MERELY RECOMMENDATORY. NBI IS NOT A JUDICIAL OR QUASI JUDICIAL BODY. THEIR FINDINGS  COULD NOT PREJUDICE THE RESPONDENTS. THE SAME ARE SUBMITTED TO THE PROSECUTOR. AND IT IS THE PROSECUTOR WHO RULES ON WHETHER RESPONDENTS BE CHARGED IN COURT.

On the respondents’ allegation that they were denied due process during the NBI investigation, we stress that the functions of this agency are merely investigatory and informational in nature.   It has no judicial or quasi-judicial powers and is incapable of granting any relief to any party.   It cannot even determine probable cause. The NBI is an investigative agency whose findings are merely recommendatory. It undertakes investigation of crimes upon its own initiative or as public welfare may require in accordance with its mandate. It also renders assistance when requested in the investigation or detection of crimes in order to prosecute the persons responsible.

Since the NBI’s findings were merely recommendatory, we find that no denial of the respondents’ due process right could have taken place; the NBI’s findings were still subject to the prosecutor’s and the Secretary of Justice’s actions for purposes of finding the existence of probable cause.

WHAT IS THE NATURE OF A QUESTIONED DOCUMENTS REPORT?

IT IS INCONCLUSIVE. IT DOES NOT PREVENT RESPONDENTS FROM SECURING ALSO THEIR OWN SEPARATE DOCUMENTS EXAMINATION.

WHAT THEN IS THE SIGNIFICANCE OF A QUESTIONED DOCUMENTS REPORT?

ITS SIGNIFICANCE IS THAT, TAKEN TOGETHER WITH THE OTHER PIECES OF EVIDENCE SUBMITTED BY THE PARTIES DURING THE PRELIMINARY INVESTIGATION, THESE EVIDENCE COULD BE SUFFICIENT FOR PURPOSES OF FINDING PROBABLE CAUSE

TO ARRIVE AT A FINDING OF PROBABLE CAUSE WHAT SHOULD BE DONE?

ASCERTAIN THAT THE ELEMENTS OF THE CRIME CHARGED ARE PRESENT.

HOW ABOUT THE FACTS? WHAT FACTS ARE NEEDED?

ONLY FACTS SUFFICIENT TO SUPPORT A PRIMA FACIE CASE.

NOT ABSOLUTE CERTAINTY. ONLY PROBABILITY OF GUILT. MORE THAN MERE SUSPICION BUT LESS THAN EVIDENCE THAT WOULD JUSTIFY CONVICTION.

DID DOJ COMMITTED GRAVE ABUSE OF DISCRETION IN RULING THAT THERE WAS PROBABLE CAUSE CONTRARY TO THE FINDING OF THE CITY PROSECUTOR?

NO. BECAUSE THE DOJ DETERMINED WHETHER THE ELEMENTS OF THE CRIME OF FALSIFICATION ARE PRESENT.

THE CITY PROSECUTOR RULED THAT THE NBI REPORT IS NOT CORRECT BECAUSE EVEN BY THE USE OF ONE’S NAKED EYE THE QUESTIONED SIGNATURES ARE SIMILAR TO THE GENUINE SIGNATURES. WAS THE PROSECUTOR CORRECT?

NO. SUCH CONCLUSION CAN ONLY BE MADE BY THE COURT IN A FULL BLOWN TRIAL. NOT BY THE PUBLIC PROSECUTOR.

THE VALIDITY AND MERITS OF A PARTY’S DEFENSE AND ACCUSATION, AS WELL AS ADMISSIBILITY OF TESTIMONIES AND EVIDENCE, ARE BETTER VENTILATED DURING TRIAL PROPER THAN AT THE PRELIMINARY INVESTIGATION LEVEL.

THE CA REVERSED THE RULING OF THE DOJ. WAS CA CORRECT?

NO. BECAUSE THE FINDINGS OF THE SECRETARY OF JUSTICE ARE NOT SUBJECT TO INTERFERENCE BY THE COURTS.

THE EXCEPTION IS: WHEN HE ACTS WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION; WHEN HE GROSSLY MISAPPREHENDS FACTS; WHEN HE ACTS IN A MANNER SO PATENT AND GROSS AS TO AMOUNT TO AN EVASION OF POSITIVE DUTY OR A VIRTUAL REFUSAL TO PERFORM THE DUTY ENJOINED BY LAW; OR WHEN HE ACTS OUTSIDE THE CONTEMPLATION OF LAW.

IN THIS CASE THE SECRETARY OF JUSTICE DID NOT GRAVELY ABUSE THE EXERCISE OF HER DISCRETION IN REVERSING THE FINDINGS OF THE CITY PROSECUTOR.

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SCD-2014-0043-APR 2014-SHU

CASE 2014-0041: CIVIL SERVICE COMMISSION, PETITIONER,- versus – MARICELLE M. CORTES, Respondent. (G.R. No. 200103, 23 APRIL 2014, ABAD J.) SUBJECT/S: NEPOTISM (BRIEF TITLE: CIVIL SERVICE VS CORTES)

DISPOSITIVE:

WHEREFORE, the instant petition is GRANTED. The Decision dated August 11, 2011 and Resolution dated January 10, 2012 of the Comi of Appeals in CA-G.R. SP 115380 are REVERSED and SET ASIDE. The Resolution of the Civil Service Commission dated March 2, 2010 affirming the CSC-NCR Decision dated September 30, 2008 invalidating the appointment of respondent Maricelle M. Cortes for being nepotistic is hereby REINSTATED.

SO ORDERED.

SUBJECTS/DOCTRINES/DIGEST:

WHAT IS NEPOTISM?

NEPOTISM IS DEFINED IN SECTION 59 OF THE ADMINISTRATIVE CODE AS AN APPOINTMENT ISSUED IN FAVOR OF A RELATIVE WITHIN THE THIRD CIVIL DEGREE OF CONSANGUINITY OR AFFINITY OF ANY OF THE FOLLOWING:

(1) APPOINTING AUTHORITY;

(2) RECOMMENDING AUTHORITY;

(3) CHIEF OF THE BUREAU OR OFFICE; AND

(4) PERSON EXERCISING IMMEDIATE SUPERVISION OVER THE APPOINTEE.

ARE THERE EXCEPTIONS?

YES, AS FOLLOWS:

(1) PERSONS EMPLOYED IN A CONFIDENTIAL CAPACITY;

(2) TEACHERS;

(3) PHYSICIANS; AND

(4) MEMBERS OF THE ARMED FORCES OF THE PHILIPPINES.

CORTEZ WAS APPOINTED AT CHR AS INFORMATION OFFICER. IS HER APPOINTMENT COVERED BY THE PROHIBITION ON NEPOTISM?

YES. SHE IS THE DAUGHTER OF CHR COMMISSIONER MALLARI. AND SHE IS NOT COVERED BY THE EXCEPTIONS.

RESPONDENT CORTES ARGUES THAT THE APPOINTING AUTHORITY REFERRED TO IN SECTION 59 OF THE ADMINISTRATIVE CODE IS THE COMMISSION EN BANC AND NOT THE INDIVIDUAL COMMISSIONERS WHO COMPOSE IT.     IS HER ARGUMENT CORRECT?

NO. TO RULE THAT THE PROHIBITION APPLIES ONLY TO THE COMMISSION, AND NOT TO THE INDIVIDUAL MEMBERS WHO COMPOSE IT, WILL RENDER THE PROHIBITION MEANINGLESS. APPARENTLY, THE COMMISSION EN BANC, WHICH IS A BODY CREATED BY FICTION OF LAW, CAN NEVER HAVE RELATIVES TO SPEAK OF.

FURTHER, IF ACTS THAT CANNOT BE LEGALLY DONE DIRECTLY CAN BE DONE INDIRECTLY, THEN ALL LAWS WOULD BE ILLUSORY.

BUT COMMISSIONER MALLARI ABSTAINED FROM VOTING ON HER APPOINTMENT. DID HIS ABSENTION NOT CURE THE NEPOTISTIC CHARACTER OF THE APPOINTMENT?

NO BECAUSE THE EVIL SOUGHT TO BE AVOIDED BY THE PROHIBITION STILL EXISTS. HIS MERE PRESENCE DURING THE DELIBERATION FOR THE APPOINTMENT OF IO V CREATED AN IMPRESSION OF INFLUENCE AND CAST DOUBT ON THE IMPARTIALITY AND NEUTRALITY OF THE COMMISSION EN BANC.

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SCD-2014-0042-APR 2014-CORTES

CASE 2014-0041: MIRANT (PHILIPPINES) CORPORATION AND EDGARDO A. BAUTISTA, PETITIONERS, – VERSUS – JOSELITO A. CARO, RESPONDENT. (G.R. NO. 181490, 23 APRIL 2014, VILLARAMA, J.) SUBJECT/S: ILLEGAL DISMISSAL; NON-FORUM SHOPPING; QUITCLAIMS; COMPANY POLICIES; (BRIEF TITLE: MIRANT ET AL. VS. CARO)

DISPOSITIVE:

“WHEREFORE, the petition for review on certiorari is DENIED. The assailed Decision dated June 26, 2007 and the Resolution dated January 11, 2008 in CA-G.R. SP No. 96153 are AFFIRMED with the MODIFICATION that only petitioner corporation is found GUILTY of the illegal dismissal of respondent Joselito A. Caro. Petitioner Edgardo A. Bautista is not held personally liable as then President of petitioner corporation at the time of the illegal dismissal.

No pronouncement as to costs.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

RESPONDENT FAILED TO SUBSCRIBED THE VERIFICATION AND CERTIFICATION OF NON-FORUM SHOPPING (ATTACHED TO HIS PETITION TO C.A. BEFORE A NOTARY PUBLIC. C.A. DID NOT DISMISS THE CASE. WAS C.A. CORRECT?

CA WAS CORRECT. IN THE FIELD OF LABOR PROTECTION A LIBERAL STANCE TOWARDS THE CONSTRUCTION OF THE RULES OF PROCEDURE IN ORDER TO SERVE THE ENDS OF SUBSTANTIAL JUSTICE.

This jurisdiction has adopted in the field of labor protection a liberal stance towards the construction of the rules of procedure in order to serve the ends of substantial justice. This liberal construction in labor law emanates from the mandate that the workingman’s welfare should be the primordial and paramount consideration.45 Thus, if the rules of procedure will stunt courts from fulfilling this mandate, the rules of procedure shall be relaxed if the circumstances of a case warrant the exercise of such liberality. If we sustain the argument of petitioners in the case at bar that the petition for certiorari should have been dismissed outright by the CA, the NLRC decision would have reached finality and respondent would have lost his remedy and denied his right to be protected against illegal dismissal under the Labor Code, as amended.

PETITIONER COMPANY’S POLICY STATES THAT IF AN EMPLOYEE FAILED TO TAKE THE RANDOM DRUG TEST AS SCHEDULED, SUCH FAILURE METES THE PENALTY OF TERMINATION. RESPONDENT FAILED TO TAKE THE RANDOM DRUG TEST. HE WAS DISMISSED. IS HIS DISMISSAL LEGAL?

NO. THERE WAS ILLEGAL DISMISSAL IN THE CASE AT BAR. WHILE THE ADOPTION AND ENFORCEMENT BY PETITIONER CORPORATION OF ITS ANTI-DRUGS POLICY IS RECOGNIZED AS A VALID EXERCISE OF ITS MANAGEMENT PREROGATIVE AS AN EMPLOYER, SUCH EXERCISE IS NOT ABSOLUTE AND UNBRIDLED.

We agree with the disposition of the appellate court that there was illegal dismissal in the case at bar.

While the adoption and enforcement by petitioner corporation of its Anti-Drugs Policy is recognized as a valid exercise of its management prerogative as an employer, such exercise is not absolute and unbridled. Managerial prerogatives are subject to limitations provided by law, collective bargaining agreements, and the general principles of fair play and justice.46 In the exercise of its management prerogative, an employer must therefore ensure that the policies, rules and regulations on work-related activities of the employees must always be fair and reasonable and the corresponding penalties, when prescribed, commensurate to the offense involved and to the degree of the infraction.47 The Anti-Drugs Policy of Mirant fell short of these requirements.

WAS PETITIONER CORPORATION’S SUBJECT ANTI-DRUGS POLICY FAIR AND REASONABLE?

NO BECAUSE OF THE FOLLOWING REASONS:

FIRST. THE POLICY WAS NOT CLEAR ON WHAT CONSTITUTES “UNJUSTIFIED REFUSAL” WHEN THE SUBJECT DRUG POLICY PRESCRIBED THAT AN EMPLOYEE’S “UNJUSTIFIED REFUSAL” TO SUBMIT TO A RANDOM DRUG TEST SHALL BE PUNISHABLE BY THE PENALTY OF TERMINATION FOR THE FIRST OFFENSE.

SECOND. THE PENALTY OF TERMINATION IMPOSED BY PETITIONER CORPORATION UPON RESPONDENT FELL SHORT OF BEING REASONABLE. COMPANY POLICIES AND REGULATIONS ARE GENERALLY VALID AND BINDING BETWEEN THE EMPLOYER AND THE EMPLOYEE UNLESS SHOWN TO BE GROSSLY OPPRESSIVE OR CONTRARY TO LAW50– AS IN THE CASE AT BAR.

RESPONDENT ALREADY EXECUTED QUITCLAIM. DOES THIS MAKE HIS CASE MOOT?

NO. QUITCLAIMS EXECUTED BY LABORERS ARE INEFFECTIVE TO BAR CLAIMS FOR THE FULL MEASURE OF THEIR LEGAL RIGHTS,52 ESPECIALLY IN THIS CASE WHERE THE EVIDENCE ON RECORD SHOWS THAT THE AMOUNT STATED IN THE QUITCLAIM EXACTLY CORRESPONDS TO THE AMOUNT CLAIMED AS UNPAID WAGES BY RESPONDENT UNDER ANNEX A53 OF HIS REPLY54 FILED WITH THE LABOR ARBITER.

As to the other issue relentlessly being raised by petitioner corporation that respondent’s petition for certiorari before the CA should have been considered moot as respondent had already previously executed a quitclaim discharging petitioner corporation from all his monetary claims, we cannot agree. Quitclaims executed by laborers are ineffective to bar claims for the full measure of their legal rights,52 especially in this case where the evidence on record shows that the amount stated in the quitclaim exactly corresponds to the amount claimed as unpaid wages by respondent under Annex A53 of his Reply54 filed with the Labor Arbiter. Prima facie, this creates a false impression that respondent’s claims have already been settled by petitioner corporation – discharging the latter from all of respondent’s monetary claims. In truth and in fact, however, the amount paid under the subject quitclaim represented the salaries of respondent that remained unpaid at the time of his termination – not the amounts being claimed in the case at bar.

INDIVIDUAL PETITIONER BAUTISTA WAS HELD PERSONALLY LIABLE BY CA. WAS THE DECISION CORRECT?

NO. CA DID NOT DISCUSS THE BASIS OF THE PERSONAL LIABILITY OF PETITIONER BAUTISTA. BOARD OF DIRECTORS WHO MAY ONLY BE HELD PERSONALLY LIABLE FOR DAMAGES IF IT IS PROVEN THAT THEY ACTED WITH MALICE OR BAD FAITH

A corporation has a personality separate and distinct from its officers and board of directors who may only be held personally liable for damages if it is proven that they acted with malice or bad faith in the dismissal of an employee. 57 Absent any evidence on record that petitioner Bautista acted maliciously or in bad faith in effecting the termination of respondent, plus the apparent lack of allegation in the pleadings of respondent that petitioner Bautista acted in such manner, the doctrine of corporate fiction dictates that only petitioner corporation should be held liable for the illegal dismissal of respondent.

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SCD-2014-0041-APR 2014-MIRANT