J.A.B. Bulao & Associates

DISPOSITIVE:

WHEREFORE, the Petition for Review on Certiorari is DENIED for failure to raise any reversible error. The assailed May 29, 2015 Decision and March 17, 2016 Resolution of the Court of Appeals in CA-G.R. SP No. 07130 are AFFIRMED.

So Ordered.

SUBJECTS/DOCTRINES/DIGEST:

WHAT HAPPENED IN THIS CASE?

RESPONDENT WAS DISMISSED FOR LOSS OF TRUST (ALLEGEDLY STEALING FIRE EXTINGUISHERS), ABANDONMENT OF WORK (DID NOT MAKE TURN-OVER) AND GROSS NEGLIGENCE (SEVERAL CUSTOMERS COMPLAINED). ULTIMATELY, C.A. RULED THAT RESPONDENT WAS ILLEGALLY DISMISSED. ANOTHER ISSUE: RESPONDENT FILED CERTIORARI  BEYOND REGLEMENTARY PERIOD. C.A. ENTERTAINED PETITION FOR CERTIORARI. SUPREME COURT SUSTAINED C.A.

DESPITE THE LATE FILING OF PETITION FOR CERTIORARI, C.A. GAVE DUE COURSE TO THE PETITION. IS THIS PROPER?

YES. C.A. HAS THE DISCRETION.

While petitioner is correct that a party’s recourse to the extraordinary writ of certiorari is generally governed by mandatory procedural rules,46 giving due course to a petition ultimately depends on the reviewing court’s discretion. In Serrano v. Galant Maritime Services:47

Needless to state, the acceptance of a petition for certiorari as well as the grant of due course thereto is, in general, addressed to the sound discretion of the court. Although the court has absolute discretion to reject and dismiss a petition for certiorari, in general, it does so only (1) when the petition fails to demonstrate grave abuse of discretion by any court, agency, or branch of the government; or (2) when there are procedural errors, like violations of the Rules of Court or Supreme Court Circulars. 48 (Emphasis supplied, citations omitted)

The Court of Appeals did not mention the Petition for Certiorari being filed out of time. However, its reasoning for giving the pleading due course allowed the liberal application of the rule on filing periods. Rules of procedure “facilitate the orderly administration of justice”;52 however, their application should not result in a denial of substantial justice. Serrano is again instructive:

In Cusi-Hernandez vs. Diaz, this Court, speaking through Mr. Justice Artemio V. Panganiban, held that “cases should be determined on the merits, after full opportunity to all parties for ventilation of their causes and defenses, rather than on technicality or some procedural imperfections. In that way, the ends of justice would be served better.”

Indeed, “procedural rules are created not to hinder or delay but to facilitate and promote the administration of justice. It is far better to dispose of the case on the merits which is a primordial end rather than on a technicality, if it be the case, that may result in injustice. ” In Paras vs. Ba/dado and Alberto vs. Court of Appeals, this Court held that “(w)hat should guide judicial action is the principle that a party[1]litigant is to be given the fullest opportunity to establish the merits of his complaint or defense rather than for him to lose life, liberty, honor or property on technicalities …. (T)he rules of procedure should be viewed as mere tools designed to facilitate the attainment of justice.

Their strict and rigid application, which would result in technicalities that tend to frustrate rather than promote substantial justice, must always be eschewed. ” 53 (Emphasis supplied, citations omitted).

PETITIONER ARGUES THAT RESPONDENT COMMITTED LOSS OF TRUST DUE TO THE DISAPPEARANCE OF FIRE EXTINGUISHERS. RESPONDENT ALLEGEDLY ADMITTED IT BECAUSE HE EVEN AGREED TO PAY FOR THEIR VALUES. IS PETITIONER CORRECT?

NO BECAUSE RESPONDENT DID NOT OCCUPY A POSITION OF TRUST AND CONFIDENCE AND THE ALLEGED ACT OF THE EMPLOYEE STEALING THE FIRE EXTINGUISHERS WAS NOT PROVEN.

First, loss of trust and confidence may be just cause for termination of employment only upon proof that: (1) the dismissed employee occupied a position of trust and confidence; and (2) the dismissed employee committed “an act justifying the loss of trust and confidence.”56

Here, both the National Labor Relations Commission and the Court of Appeals established that respondent did not hold a position of trust and confidence. Moreover, the second element, pertaining to the act that breached the employer’s trust and confidence, was never established in prior proceedings. Rivera v. Genesis Transport Services, Inc. explains:

The position an employee holds is not the sole criterion. More important than this formalistic requirement is that loss of trust and confidence must be justified As with misconduct as basis for terminating employment, breach of trust demands that a degree of severity attend[ s] the employee’s breach of trust. In China City Restaurant Corporation v. National Labor Relations Commission, this court emphasized the need for caution:

For loss of trust and confidence to be a valid ground for the dismissal of employees, it must be substantial and not arbitrary, whimsical, capricious or concocted.

Irregularities or malpractices should not be allowed to escape the scrutiny of this Court. Solicitude for the protection of the rights of the working class [is] of prime importance. Although this is not [a] license to disregard the rights of management, still the Court must be wary of the ploys of management to get rid of employees it considers as undesirable. 57 (Emphasis supplied, citations omitted)

PETITIONER ALSO ARGUES THAT THE LOSS OF FIRE EXTINGUISHERS CAN ALSO CONSTITUTE GROSS NEGLECT OF DUTY. IT MAY BE NOTED THAT THE RESPONDENT SAID THEY MAY HAVE BEEN STOLEN WHILE HE WAS PAINTING THE OFFICE. IS PETITIONER CORRECT?

NO BECAUSE GROSS NEGLIGENCE MUST BE BOTH GROSS AND HABITUAL. THERE WAS NO PROOF OF WANTONNESS AND HABITUALITY.

…. Anvil Ensembles Garment v. Court of Appeals59 provides the standard for establishing gross neglect of duty as just cause for terminating employment:

Thus, under the Labor Code, to be a valid ground for dismissal, the negligence must be gross and habitual. Gross negligence has been defined as the want or absence of even slight care or diligence as to amount to a reckless disregard of the safety of the person or property. It evinces a thoughtless disregard of consequences without exerting any effort to avoid them. Put differently, gross negligence is characterized by want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently, but willfully and intentionally with a conscious indifference to consequences insofar as other persons may be affected. 60 (Emphasis supplied, citations omitted)

Therefore, even if respondent were negligent, such negligence must be proven to be gross and habitual. Neither the records nor the Petition establishes the required wantonness and habituality of respondent’s neglect that would merit his dismissal. Petitioner refers to facts allegedly established in prior proceedings and concludes that the simple fact of loss of property amounted to gross negligence.61 However, the records indicate that respondent was willing to admit the consequences of the loss and even offered to pay for the lost properties’ value. This directly contradicts the “conscious indifference to consequences”62 indicative of gross and habitual neglect. Thus, there was no basis to terminate respondent’s employment for gross and habitual neglect of duty.

PETITIONER ARGUES THAT RESPONDENT CAN BE VALIDLY BE DISMISSED DUE TO ABANDONMENT OF WORK. HE DID NOT REPORT TO WORK AND MADE PROPER TURN-OVER. IS PETITIONER RIGHT?

NO. ONCE INFORMED THAT HE WAS DISMISSED, RESPONDENT CANNOT BE EXPECTED TO REPORT BACK TO WORK. EVEN TO TURN OVER HIS WORKS.

Petitioner argues that respondent abandoned his work when he failed to complete the company’s turnover procedure after receipt of the January 4, 2010 termination notice.64 Mame v. Court of Appea!s65 is instructive in the elements of abandonment as just cause for termination of employment:

“In cases where abandonment is the cause for termination of employment, two factors must concur: (1) there is a clear, deliberate and unjustified refusal to resume employment; and (2) a clear intention to sever the employer-employee relationship. The burden of proof that there was abandonment lies with the employer. Where the employee takes steps to protest his layoff, it cannot be said that he has abandoned his work because a charge of abandonment is totally inconsistent with the immediate filing of a complaint for illegal dismissal, more so when it includes a prayer for reinstatement. 66 (Emphasis supplied, citations omitted)”

Thus, petitioner’s argument fails to convince, as the records would indicate that respondent’s employment had already been terminated by the time he supposedly abandoned his work. Nothing in the records shows respondent’s failure to report for work prior to his receipt of the January 4, I 2010 termination notice. It would have been unreasonable to expect him to continue reporting for work after having been notified of his dismissal.

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