J.A.B. Bulao & Associates

CASE 2019-0008: MYRA M. MORAL VS. MOMENTUM PROPERTIES MANAGEMENT CORPORATION (G.R. NO. 226240. MARCH 6, 2019, CARPIO J.) (SUBJECT/S: DISMISSAL OF PROBATIONARY EMPLOYEE) BRIEF TITLE: MORAL VS MOMENTUM PROPERTIES)

 DISPOSITIVE:

“WHEREFORE, the petition is DENIED. The Decision dated 22 March 2016 and the Resolution dated 19 July 2016 of the Court of Appeals in CA-G.R. SP No. 138704 are AFFIRMED.

SO ORDERED.”

SUBJECTS/DOCTRINES/DIGEST:

WHAT HAPPENED IN THIS CASE?

DISMISSAL OF PROBATIONARY EMPLOYEE WAS UPHELD BUT EMPLOYER WAS MADE TO PAY NOMINAL DAMAGES BECAUSE IT FAILED TO GIVE THE EMPLOYEE PROPER NOTICE OF TERMINATION.

HOW SHOULD TERMINATION NOTICE BE GIVEN IN CASE TERMINATION WAS DUE TO FAILURE TO QUALIFY AS A REGULAR EMPLOYEE IN ACCORDANCE WITH THE REASONABLE STANDARDS PRESCRIBED BY THE EMPLOYER?

A WRITTEN NOTICE MUST BE  SERVED THE EMPLOYEE WITHIN A REASONABLE TIME FROM THE EFFECTIVE DATE OF TERMINATION.

IN THIS CASE NOTICE WAS GIVEN BY TEXT MESSAGES ONLY.

FOR FAILURE TO FOLLOW THE RULE ON HOW NOTICE BE GIVEN TO THE PROBATIONARY EMPLOYEE IS THE DISMISSAL STILL LEGAL?

YES.

BUT EMPLOYER SHALL PAY NOMINAL DAMAGES. IN THIS CASE FOLLOWING A PRECEDENT DECISION THE DAMAGES IMPOSED WAS P30,000.00.

HOW SHALL A PROBATIONARY EMPLOYEE BE DISMISSED?

THERE ARE THREE WAYS:

(1) A JUST CAUSE;

(2) AN AUTHORIZED CAUSE;

AND (3) WHEN HE OR SHE FAILS TO QUALIFY AS A REGULAR EMPLOYEE IN ACCORDANCEWITH THE REASONABLE STANDARDS PRESCRIBED BY THE EMPLOYER.41

A probationary employee enjoys security of tenure, although it is not on the same plane as that of a permanent employee. Other than being terminated for a just or authorized cause, a probationary employee may also be dismissed due to his or her failure to qualify in accordance with the standards of the employer made known to him or her at the time of his or her engagement.40 Hence, the services of a probationary employee may be terminated for any of the following: (1) a just cause; (2) an authorized cause; and (3) when he or she fails to qualify as a regular employee in accordance with the reasonable standards prescribed by the employer.41

WHAT IS MANAGEMENT PREROGATIVE TO HIRE?

AN EMPLOYER HAS THE RIGHT OR IS AT LIBERTY TO CHOOSE WHO WILL BE HIRED AND WHO WILL BE DENIED EMPLOYMENT.

It is a well-established principle that an employer has the right or is at liberty to choose who will be hired and who will be denied employment. Accordingly, it is within the exercise of the right to select one’s employees that an employer may set or fix a probationary period within which the latter may test and observe the conduct of the former before the former is hired on a permanent basis. 49 As long as the employer has made known to the employee the regularization standards at the time of the employee’s engagement, the refusal of the former to regularize the latter, by reason of the latter’s failure to comply with the regularization standards, is within the ambit of the law.

TO READ THE DECISION, JUST CLICK/DOWNLOAD THE FILE BELOW.

SCD-2019-0008-MYRA M. MORAL VS. MOMENTUM PROPERTIES MANAGEMENT CORPORATION

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CASE 2019-0007:  JUSTICE FERNANDA LAMPAS-PERALTA, JUSTICE STEPEHN C. CRUZ AND JUSTICE RAMON PAUL L. HERNANDO VS. ATTY. MARIE FRANCES E. RAMON
(A.C. NO. 12415. MARCH 5, 2019, PER CURIAM) (SUBJECT/S: DISBARMENT) (BRIEF TITLE: JUSTICE F.L. PERALTA VS ATTY RAMON)

 DISPOSITIVE:

“WHEREFORE, Atty. Marie Frances E. Ramon is GUILTY of violating the Lawyer’s Oath, Canons 1, 7, and 10, and Rules 1.01, 1.02, 7.03, 10.01, 10.02, and 10.03 of the Code of Professional Responsibility, and Grave Misconduct. For reasons above stated, she is DISBARRED from the practice of law and her name stricken off the Roll of Attorneys, effective immediately, without prejudice to the civil or criminal cases pending and/or to be filed against her.

Let a copy of this Decision be furnished to the Office of the Bar Confidant to be entered into Atty. Marie Frances E. Ramon’s records. Copies shall likewise be furnished the Integrated Bar of the Philippines and the Office of the Court Administrator for circulation to all courts concerned.

SO ORDERED.”

 SUBJECTS/DOCTRINES/DIGEST:

WHAT WERE THE FINDINGS OF THIS COURT IN THIS CASE?

The Decision states:

“The Court finds that complainants have established by substantial evidence that respondent: ( 1) drafted a fake decision of the CA acquitting Fajardo; (2) falsely and shamelessly included the names of complainants in the fake decision even though the criminal case was raffled to another division and handled by a different Justice; (3) maliciously represented that she can influence Associate Justices of the CA to acquit an accused; ( 4) fraudulently presented this fake decision to her clients in exchange for a hefty monetary consideration; ( 5) exacted exorbitant fees from her clients in the amount of Pl,000,000.00; and (6) was caught red-handed by the NBI operatives when she received the marked money from her client for the fake decision of the CA. As discussed above, these acts constitute violations of the Lawyer’s Oath, and Canons 1, 7, and 10, and Rules 1.01, 1.02, 7.03, 10.01, 10.02, and 10.03 of the Code. Respondent is guilty of grave misconduct because her transgression showed her clear intent to violate the law and disregard the Code.”

WHAT IS THE REASON FOR DISCIPLINING A LAWYER WITH SUSPENSION OR DISBARMENT?

THE REASON IS: THE PRACTICE OF LAW IS A PROFESSION, A FORM OF PUBLIC TRUST, THE PERFORMANCE OF WHICH IS ENTRUSTED TO THOSE WHO ARE QUALIFIED AND WHO POSSESS GOOD MORAL CHARACTER.

HOW TO DETERMINE THE APPROPRIATE PENALTY?

THE APPROPRIATE PENALTY FOR AN ERRANT LAWYER DEPENDS ON THE EXERCISE OF SOUND JUDICIAL DISCRETION BASED ON THE SURROUNDING FACTS.

IS THERE A SIMILAR CASE?

YES. THE COURT SAID:

In Taday v. Atty. Apoya, Jr.,  the Court disbarred a lawyer for authoring a fake court decision, which was considered a violation of Rule 1.01, Canon 1 of the Code. The lawyer therein even delivered and misrepresented the fake decision to his client. The Court held that the lawyer “committed unlawful, dishonest, immoral[,] and deceitful conduct, and lessened the confidence of the public in the legal system.”

 TO READ THE DECISION, JUST CLICK/DOWNLOAD THE FILE BELOW.

SCD-2019-0007-JUSTICE FERNANDA LAMPAS-PERALTA ET AL VS. ATTY. MARIE FRANCES E. RAMON

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CASE 2019-0006: GIOS-SAMAR, INC. REPRESENTED BY ITS CHAIRPERSON GERARDO M. MALIANO VS. DEPARTMENT OF TRANSPORTATION AND COMMUNICATION AND CIVIL AVIATION ATHORITY OF THE PHILIPPINES (G.R. NO. 217158. MARCH 12, 2019, JARDELEZA, J.) (SUBJECT/S: GUIDELINES IN THE EXERCISE OF COURT;S POWER OF JUDICIAL REVIEW) (BRIEF TITLE: GIOS-SAMAR INC VS DOTC ET AL)

DISPOSITIVE:

“WHEREFORE, PREMISES CONSIDERED, the petition is

DISMISSED.

SO ORDERED.”

 SUBJECTS/DOCTRINES/DIGEST:

WHAT ARE THE PILLARS OF LIMITATION OF JUDICIAL REVIEW BASED ON U.S. CASES?

THEY ARE AS FOLLOWS:

• THAT THERE BE ABSOLUTE NECESSITY OF DECIDING A CASE;

• THAT RULES OF CONSTITUTIONAL LAW SHALL BE FORMULATED ONLY AS REQUIRED BY THE FACTS OF THE CASE;

• THAT JUDGMENT MAY NOT BE SUSTAINED ON SOME OTHER GROUND;

• THAT THERE BE ACTUAL INJURY SUSTAINED BY THE PARTY BY REASON OF THE OPERATION OF THE STATUTE

• THAT THE PARTIES ARE NOT IN ESTOPPEL;

• THAT THE COURT UPHOLDS THE PRESUMPTION OF CONSTITUTIONALITY.

WHAT ARE PARALLEL GUIDELINES ADOPTED BY THIS COURT?

THEY ARE:

ACTUAL CASE OR CONTROVERSY CALLING FOR THE

EXERCISE OF JUDICIAL POWER;

THE PERSON CHALLENGING THE ACT MUST HAVE

“STANDING” TO CHALLENGE; HE MUST HAVE A

PERSONAL AND SUBSTANTIAL INTEREST IN THE CASE

SUCH THAT HE HAS SUSTAINED, OR WILL SUSTAIN,

DIRECT INJURY AS A RESULT OF ITS ENFORCEMENT;

THE QUESTION OF CONSTITUTIONALITY MUST BE

RAISED AT THE EARLIEST POSSIBLE OPPORTUNITY;

THE ISSUE OF CONSTITUTIONALITY MUST BE THE

VERY LIS  MOTA OF THE CASE.

TO READ THE DECISION, JUST CLICK/DOWNLOAD THE FILE BELOW.

SCD-2019-0006-GIOS-SAMAR, INC. VS. DEPARTMENT OF TRANSPORTATION AND COMMUNICATION ET AL

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