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CASE 0033: THE COCA-COLA EXPORT CORPORATION VS. CLARITA P. GACAYAN (G.R. NO. 149433, 15 DECEMBER 2010, J. LEONARDO-DE CASTRO) SUBJECTS: LOSS OF CONFIDENCE; MISCONDUCT; COMPUTATION OF BACKWAGES. BRIEF TITLE: COCA-COLA VS. GACAYAN.

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January 8, 2011

THE COCA-COLA EXPORT CORPORATION VS. CLARITA P. GACAYAN (G.R. NO. 149433, 15 DECEMBER 2010, J. LEONARDO-DE CASTRO) SUBJECTS: LOSS OF CONFIDENCE; MISCONDUCT; COMPUTATION OF BACKWAGES. BRIEF TITLE: COCA-COLA VS. GACAYAN.

 

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DIGEST

 

 

CLARITA, A SENIOR FINANCIAL ASSISTANT,  WAS DISMISSED AFTER COCA-COLA DISCOVERED THAT SHE SUBMITTED FOR REIMBURSEMENT TAMPERED RECEIPTS FOR FOOD ITEMS. THEIR GROUND WAS LOSS OF CONFIDENCE. LATER IN THE PROCEEDINGS THEY INCLUDED THE GROUND OF MISCONDUCT.

 

SUPREME COURT RULED THAT THERE WAS NO LOSS OF CONFIDENCE BECAUSE  COCA-COLA’S MEMO TO CLARITA DISMISSING HER DID NOT MENTION LOSS OF CONFIDENCE. THERE WAS NO MISCONDUCT BECAUSE THERE WAS NO WRONGFUL INTENT.

 

 

DOCTRINES

 

 

LOSS OF CONFIDENCE AS GROUND MUST BE MADE KNOWN TO EMPLOYEE

 

        Evidently, no mention was made regarding petitioner’s alleged loss of trust and confidence in respondent.  Neither was there any explanation nor discussion of the alleged sensitive and delicate position of respondent requiring the utmost trust of petitioner. 

        It bears emphasizing that the right of an employer to dismiss its employees on the ground of loss of trust and confidence must not be exercised arbitrarily.  For loss of trust and confidence to be a valid ground for dismissal, it must be substantial and founded on clearly established facts.  Loss of confidence must not be used as a subterfuge for causes which are improper, illegal or unjustified; it must be genuine, not a mere afterthought, to justify earlier action taken in bad faith.  Because of its subjective nature, this Court has been very scrutinizing in cases of dismissal based on loss of trust and confidence because the same can easily be concocted by an abusive employer.[1][46]  Thus, when the breach of trust or loss of confidence theorized upon is not borne by clearly established facts, as in the instant case, such dismissal on the ground of loss and confidence cannot be countenanced.

GUIDELINES FOR APPLICATION OF DOCTRINE OF LOSS OF CONFIDENCE AS GROUND FOR DISMISSAL

In Nokom v. National Labor Relations Commission,[2][44] this Court set the guidelines for the application of the doctrine of loss of confidence –

(a)    Loss of confidence should not be simulated;

(b)   It should not be used as a subterfuge for causes which are improper, illegal or unjustified;

(c)    It may not be arbitrarily asserted in the face of overwhelming evidence to the contrary; and

(d)   It must be genuine, not a mere afterthought to justify earlier action taken in bad faith.

 

 

MISCONDUCT MUST NOT ONLY VIOLATE COMPANY RULES. IT MUST BE COMMITTED WITH WRONGFUL INTENT.

In Marival Trading, Inc. v. National Labor Relations Commission,[3][48] we held, thus:

Misconduct has been defined as improper or wrong conduct.  It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful character, and implies wrongful intent and not mere error of judgment.  The misconduct to be serious must be of such grave and aggravated character and not merely trivial and unimportant.  Such misconduct, however serious, must nevertheless be in connection with the employee’s work to constitute just cause for his separation.  Thus, for misconduct or improper behavior to be a just cause for dismissal, (a) it must be serious; (b) must relate to the performance of the employee’s duties; and (c) must show that the employee has become unfit to continue working for the employer.  Indeed, an employer may not be compelled to continue to employ such person whose continuance in the service would be patently inimical to his employer’s business.[4][49]

        In this light, the alleged infractions of respondent could hardly be considered serious misconduct.  It is well to stress that in order to constitute serious misconduct which will warrant the dismissal of an employee, it is not sufficient that the act or conduct complained of has violated some established rules or policies.  It is equally important and required that the act or conduct must have been done with wrongful intent.  Such is, however, lacking in the instant case. 

PENALTY OF DISMISSAL TOO HARSH. COMPANY POLICY WHICH PRESCRIBES IT MUST BE SUBORDINATE TO WHAT LAW AND JURISPRUDENCE PRESCRIBES.

 . . . . . . . All told, this Court holds that the penalty of dismissal imposed on respondent is unduly oppressive and disproportionate to the infraction which she committed.  A lighter penalty would have been more just.  

        As correctly held by the Court of Appeals, by mandate of the law itself, the provisions of the Labor Code are to be construed liberally in favor of labor.  Thus, in Fujitsu Computer Products Corporation of the Phils. v. Court of Appeals,[5][56] we held:

The Court is wont to reiterate that while an employer has its own interest to protect, and pursuant thereto, it may terminate a managerial employee for a just cause, such prerogative to dismiss or lay-off an employee must be exercised without abuse of discretion.  Its implementation should be tempered with compassion and understanding.  The employer should bear in mind that, in the execution of the said prerogative, what is at stake is not only the employee’s position, but his very livelihood.  The Constitution does not condone wrongdoing by the employee; nevertheless, it urges moderation of the sanction that may be applied to him.  Where a penalty less punitive would suffice, whatever missteps may have been committed by the worker ought not be visited with a consequence so severe as dismissal from employment.  Indeed, the consistent rule is that if doubts exist between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter.  The employer must affirmatively show rationally adequate evidence that the dismissal was for justifiable cause.

 

 

COMPUTATION OF BACKWAGES IN CASE OF RE-INSTATEMENT: FROM THE TIME COMPENSATION WAS NOT PAID UP TO TIME OF REINSTATEMENT

In line with Article 279 of the Labor Code and prevailing jurisprudence,[6][58] the award of backwages should be modified in the sense that backwages should be computed from the time the compensation was not paid up to the time of reinstatement.

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D E C I S I O N

LEONARDO-DE CASTRO, J.:

 

 

          Before the Court is a Petition for Review on Certiorari filed by petitioner The Coca Cola Export Corporation against respondent Clarita P. Gacayan, assailing the Decision[7][1] dated May 30, 2001 and the subsequent Resolution[8][2] dated August 9, 2001 of the Court of Appeals in CA-G.R. SP No. 49192.  The Court of Appeals reversed and set aside the Resolutions dated April 14, 1998[9][3] and June 19, 1998[10][4] of the National Labor Relations Commission (NLRC), and ordered the immediate reinstatement of respondent to her former position or to a substantially equivalent position without loss of seniority rights and with full backwages.

          The attendant facts are as follows:

          Petitioner The Coca Cola Export Corporation, duly organized and existing under the laws of the Philippines, is engaged in the manufacture, distribution and export of beverage base, concentrate, and other products bearing its trade name.

          Respondent Clarita P. Gacayan began working with petitioner on October 8, 1985.  At the time her employment was terminated on April 6, 1995, for alleged loss of trust and confidence, respondent was holding the position of Senior Financial Accountant. 

Under petitioner’s company policy, one of the benefits enjoyed by its employees was the reimbursement of meal and transportation expenses incurred while rendering overtime work.  This reimbursement was allowed only when the employee worked overtime for at least four hours on a Saturday, Sunday or holiday, and for at least two hours on weekdays.  The maximum amount allowed to be reimbursed was one hundred fifty (P150.00) pesos.  It was in connection with this company policy that petitioner called the attention of respondent and required her to explain the alleged alterations in three receipts which she submitted to support her claim for reimbursement of meal expenses, to wit:  1) McDonald’s Receipt No. 875493 dated October 1, 1994 for P111.00;[11][5] 2) Shakey’s Pizza Parlor Receipt No. 122658 dated November 20, 1994 for P174.06;[12][6] and 3) Shakey’s Pizza Parlor Receipt No. 41274 dated July 19, 1994 for P130.50. 

On November 21, 1994, petitioner issued a memorandum[13][7] to respondent informing her of the alteration in the date of the McDonald’s Receipt No. 875493, which she submitted in support of her claim for meal allowance allegedly consumed on October 1, 1994, and requiring her to explain the said alteration.

Respondent wrote her explanation on the same note and stated that the alteration may have been made by the staff from McDonald’s as they sometimes make mistakes in issuing receipts.  Respondent also narrated that her sister, Odette, sometimes buys food for her and that she is not quite sure if the receipt in question was the correct one which Odette gave her. 

Upon verification with the Assistant Branch Manager of the McDonald’s Makati Cinema Square outlet which issued the subject receipt, petitioner discovered that the date of issuance of the receipt was altered.   The receipt was actually issued for a meal bought on October 2, 1994 and not on October 1, 1994.[14][8]

On December 9, 1994, petitioner sent another memorandum[15][9] to respondent and required her to explain in writing why her November 21, 1994 claim for reimbursement of meal expense should not be considered fraudulent since there was an alteration in the receipt which she submitted.  The second receipt contained a handwritten alteration which read “1 PF extra mojos” which was superimposed on the computer generated print-out of the food item actually purchased. 

On December 19, 1994, respondent submitted her explanation[16][10] and claimed that what she ordered for lunch was a “buddy pack and an extra mojos.”  Respondent explained that the delivery staff brought a wrong receipt as it did not correspond to the food that she actually ordered.  Respondent added that she asked the delivery staff to alter the receipt thinking that he could just write the correct items ordered and sign the said receipt to authenticate the alterations made thereon.  She further stated that there was no intention on her part to commit fraud since she was just avoiding the hassle of waiting for a replacement receipt.

Petitioner then referred respondent’s explanation to the Assistant Manager of the Shakey’s Pizza Parlor which issued the subject receipt.  Upon verification,[17][11] it was discovered that the receipt was actually for three orders of Bunch of Lunch, and not for Buddy Pack which has an item code of CH5, not BP, as claimed by respondent.  The Assistant Manager also denied respondent’s claim that it was their representative, specifically their delivery staff, who made the alteration on the receipt.[18][12]

On January 3, 1995, petitioner sent respondent a letter[19][13] directing her to explain why she should not be subjected to disciplinary sanctions for violating Section II, No. 15, paragraph (d) of the company’s rules and regulations which punishes with dismissal the submission of any fraudulent item of expense. 

Consequently, respondent submitted her explanation[20][14] on January 4, 1995, and denied any personal knowledge in the commission of the alterations in the subject receipts.  Respondent asserted that she did not notice the alteration in the McDonald’s receipt since she “did not give close attention to it.”  She further stated that her sister’s driver/messenger may have caused the alteration, but she could not be certain about it.  With regard to the Shakey’s receipt, respondent maintained that what she ordered was a buddy pack with extra mojos. 

On January 12, 1995, petitioner sent respondent a memorandum[21][15] inviting her to a hearing and formal investigation on January 17, 1995, to give her an opportunity to explain the issues against her.  Respondent was also advised that she was free to bring along a counsel of her choice.

On January 17, 1995, respondent appeared at the hearing.  She was reminded of her right to have her own lawyer present at the proceedings of the investigation and was extensively questioned regarding the alterations on the McDonald’s and Shakey’s Pizza Parlor receipts which she submitted in support of her claim for reimbursement of meal expenses.[22][16]

On January 19, 1995, petitioner notified[23][17] respondent that the continuation of the investigation was set on January 23, 1995 for the presentation of the delivery personnel of Shakey’s Pizza Parlor.  Petitioner also informed respondent of a third receipt with an alteration which she submitted in support of her claim for reimbursement for meal allowance – Shakey’s Pizza Parlor Receipt No. 41274 dated July 19, 1994,[24][18] which contained an annotation “w/ CAV 50% only – P130.50.”  Such annotation meant that respondent was claiming only half of the total amount indicated in the receipt as the said meal was supposedly shared with another employee, Corazon A. Varona.  Said employee, however, denied that she ordered and shared the food covered by the receipt in question.[25][19]

          Upon verification by petitioner with the restaurant supervisor of the Las Piñas branch of the Shakey’s Pizza Parlor which issued the subject receipt, it was discovered that said receipt was issued for food purchased on July 17, 1994 and not for July 19, 1994,[26][20] as claimed by respondent.

Respondent did not attend the January 23, 1995 hearing, citing her doctor’s advice[27][21] to rest since she was suffering from “severe mixed migraine and muscle contraction headache.”  Respondent also complained of the alleged partiality of the investigating committee against her. 

At the said hearing, the delivery personnel of Shakey’s Pizza Parlor was presented.  He maintained that what he delivered to respondent was her order for three Bunch of Lunch packs and not one order of Buddy Pack with extra mojos.[28][22] 

On January 24, 1995, respondent filed an application for leave[29][23] from January 13, 1995 up to February 3, 1995.  Again on January 31, 1995, respondent filed another application for leave[30][24] for the period February 6, 1995 to February 24, 1995. 

On February 23, 1995, petitioner sent another notice[31][25] to respondent informing her of the re-setting of the continuation of the formal investigation on March 15, 1995.  Respondent was also advised that the said scheduled hearing was her last opportunity to fully explain her side, and that she had the option of bringing a lawyer at the hearing.

Respondent did not attend the March 15, 1995 hearing.  Petitioner then concluded the formal investigation.

Thereafter, in a letter[32][26] dated April 4, 1995, petitioner dismissed respondent for fraudulently submitting tampered and/or altered receipts in support of her petty cash reimbursements in gross violation of the company’s rules and regulations. 

On June 6, 1995, respondent filed a complaint[33][27] for illegal dismissal, non-payment of service incentive leave, sick leave and vacation leave with prayer for reinstatement, payment of backwages as well as for damages and attorney’s fees, against petitioner with the NLRC, docketed as NLRC-NCR Case No. 00-06-04000-95.  After the mandatory conciliation proceedings failed, the parties were required to submit their respective position papers.

In her position paper, respondent averred that, assuming arguendo that she altered the receipts in question, dismissal was too harsh a penalty for her considering that:  “(a) it was her first offense in her 9 ½ years of service; (b) the offense imputed was minor, as only the dates and items, not the amounts, were altered or the amounts involved were very minimal; (c) the company did not suffer material damage, as she was really entitled to the P150.00 allowance even without accompanying receipt; and (d) respondent acted without malice, as she really rendered (unpaid) overtime work on those three dates.”[34][28] 

On the other hand, petitioner maintained in its position paper that respondent was dismissed for cause, that of “tampering official receipts to substantiate her claim for (meal) reimbursement which reflects her questionable integrity and honesty.”[35][29]  Petitioner added that in terminating the services of an employee for breach of trust, “it is enough that the misconduct of the employee tends to prejudice the employer’s interest since it would be unreasonable to require the employer to wait until he is materially injured before removing the cause of the impending evil.”[36][30] 

In a Decision[37][31] dated June 17, 1996, Labor Arbiter Ramon Valentin C. Reyes ruled in favor of petitioner and dismissed respondent’s complaint for lack of merit.  The relevant portions of the Decision read:

[T]he termination of complainant is clearly valid.

Respondent [herein petitioner] complied with the notice requirement strictly to the letter.  Complainant [herein respondent] was given the first notice which the Supreme Court amply termed in the foregoing jurisprudence as the “proper charge”.  This Office further notes that more than one notice was given to the complainant [respondent].  In fact, complainant [respondent] was repeatedly directed to answer the charges against her.  As she in fact did. 

x x x x

It was only after the evidence against complainant [respondent] was received and her fraudulent participation morally ascertained that respondent [petitioner] finally decided to terminate his (sic) services.  And after arriving at a conclusion, complainant [respondent] was consequently informed of her termination which was the sanction imposed on her.

 

Again, following the yardstick laid down by the Tiu doctrine cited above, the procedure in terminating complainant [respondent] was definitely followed.  Her termination is therefore valied (sic) and must be upheld for all intents and purposes.

x x x x

Going now to the substantive aspect of complainant’s [respondent’s] termination, this Office likewise finds that there existed just cause to terminate her services.

Complainant [Respondent] was terminated for repeatedly submitting fraudulent items of expense, clearly in violation of respondent’s [petitioner’s] company rules and regulations which consequently resulted in loss of trust and confidence.[38][32]

          Undaunted, respondent appealed the Labor Arbiter’s decision to the NLRC.

          In a Resolution[39][33] dated April 14, 1998, the NLRC affirmed the ruling of the Labor Arbiter, thus:

After a careful review of the evidences presented before Us, including the jurisprudence cited, We decided to look deeper into what led or motivated herein complainant [respondent] to do as she did.

It had been established that three (3) receipts were altered/tampered with and were subsequently submitted by complainant [respondent] to the company so that she could claim her allowed meal allowance of P150.00 per meal on days she rendered overtime work.  Complainant [Respondent] admitted the alterations were done by her but she was quick to retort and tries to justify why she should not be held guilty of a fraudulent act.

As if the company owes her so much for rendering overtime work gratuitously, she now tries to “collect”, so to speak, from the company by way of emphasizing the benefits it gets from her (in terms of the alleged savings of about more than P900.00, had it paid her overtime pay and basic and premium pay).  She now hastens to conclude that since the company had greatly benefitted from her overtime services, she did not violate company rules and regulations when she tampered the receipts which she attached as her justification for reimbursement for meal allowance.

This line of reasoning is absurd, if not utterly dangerous.  Admitting the commission of the act but at the same breath denying any fraudulent intent is inconsistent.  Under no circumstances was her misconduct excusable.  Here the amount becomes immaterial, her position irrelevant.  As correctly ruled by the Labor Arbiter a quo, the disciplinary action taken by respondent company [petitioner] on complainant [respondent] applies to all employees regardless of rank.  We also agree with the findings of the Labor Arbiter below that complainant [respondent] was afforded due process.

In fine, in the absence of showing that the decision was rendered whimsically and capriciously, We Affirm.

WHEREFORE, in the light of the foregoing, the assailed Decision dated 17 June 1996 is hereby AFFIRMED.[40][34]

          Respondent filed a Motion for Reconsideration which was denied in the Resolution[41][35] dated June 19, 1998. 

          Aggrieved, respondent elevated the case to the Court of Appeals via certiorari in CA-G.R. SP No. 49192. 

          As stated at the threshold hereof, the Court of Appeals, in its assailed Decision dated May 30, 2001, reversed and set aside the Resolutions dated April 14, 1998 and June 19, 1998 of the NLRC.  The Court of Appeals ruled that the penalty of dismissal imposed on respondent was too harsh and further directed petitioner to immediately reinstate respondent to her former position, if possible, or a substantially equivalent position without loss of seniority rights and with full backwages.  The Court of Appeals ratiocinated thus:

We consider the penalty of dismissal imposed on the petitioner to be too harsh.

Petitioner [Respondent] has held an unblemished record for nine-and-a-half (9 ½) years and the respondent company [petitioner], in the same period, found her performance satisfactory, as evidenced by the promotions she received over the years and her being tasked to train in other countries.  The offenses she allegedly committed did not cause any prejudice or loss to the company since the amounts were actually due her as part of her compensation for overtime.  On the other hand, petitioner [respondent] sufficiently explained that in submitting the falsified receipts, she was acting on the belief that the said requirement was merely for record-keeping purposes for she was already entitled to the money equivalent thereof as consideration for services already rendered.  Hence, the presence of good faith on the part of petitioner [respondent], her long years of exemplary service and the absence of loss on the part of the employer, taken together, justify the application of Yap vs. NLRC, supra.  In the aforecited case, the Supreme Court considered the employee’s long years of unblemished service, the return of the funds borrowed from the employer and the employee’s lack of intent to deviate from the rules, as circumstances justifying the award of separation pay, in lieu of reinstatement.  Considering however, that there was no evidence of strained relations between the parties in the case at bench precluding a harmonious working relationship should reinstatement be decreed, then the reinstatement of petitioner [respondent] is proper.  With respect to the allegation of dishonesty on the part of private respondent, the Court considers the “ignominy and mental torture” suffered by petitioner throughout the proceedings, in view of her high position with respondent company, to be practically punishment for said misdeed.  (Philippine Airlines vs. Philippine Air Lines Employees Association, supra.)

Finally, the private respondent [petitioner] raised in issue the timeliness of the filing of the herein petition.  Based on their computation, the petition was only filed four days after [the] sixty-day period prescribed in the Section 4, Rule 65 of the Rules of Court.  Considering however, that jurisprudence is replete with instances where the Supreme Court has relaxed the technical rules in the exercise of equity jurisdiction when there are strong considerations of substantial justice that are manifest in the petition, (Soriano vs. Court of Appeals, 222 SCRA 545, 553 [1993]; Orata vs. Intermediate Appellate Court, 185 SCRA 148, 152 [1990]; Laginlin vs. Workmen’s Compensation Commission, 159 SCRA 91, 96 [1988]; and, Serrano vs. Court of Appeals, 139 SCRA 179, 186 [1985]).  Our finding that there was grave abuse of discretion in the issuance of the assailed resolutions of public respondent merit the allowance of the herein petition.

WHEREFORE, the petition is GRANTED and the Resolutions, dated April 14, 1998 and June 19, 1998, both issued by public respondent NLRC, are hereby SET ASIDE.  Private respondent [Petitioner] Coca Cola Export Corporation is hereby directed to immediately reinstate petitioner [respondent] to her former position, if possible, otherwise, to a substantially equivalent position without loss of seniority rights and with full backwages, based on her last monthly salary, to be computed from the date of her dismissal from the service up to the date of finality of this decision, without any qualifications or deductions.  No costs.[42][36]

Its motion for reconsideration having been denied by the Court of Appeals in its second impugned Resolution dated August 9, 2001, petitioner is now before us via the present recourse with the following assignment of errors:

I

BY BEING TOO LIBERAL IN FAVOR OF THE RESPONDENT, THE COURT OF APPEALS HAD DECIDED A QUESTION OF SUBSTANCE NOT IN ACCORD WITH LAW.

II

IN DOING SO, THE COURT OF APPEALS DEVIATED FROM ESTABLISHED DOCTRINES LONG SETTLED BY CONSISTENT JURISPRUDENCE ENUNCIATED BY THIS HONORABLE COURT.

          On the procedural issue, petitioner asserts that the Court of Appeals should have dismissed outright the petition for certiorari for being filed out of time and for failure to comply with the requirements set forth in Rule 42 of the Rules of Civil Procedure mandating that the petition be accompanied by clear copies of “all pleadings and other material portions of the record as would support the material allegations of the petition.”

          Moreover, petitioner contends that the Court of Appeals gave due course to respondent’s petition purely on the basis of liberality, and that it anchored its decision on the general principle that doubts must be interpreted in favor of labor. 

          In her Comment dated February 10, 2002, respondent alleges that the Court of Appeals correctly gave due course to her petition as it was actually filed on time.  Respondent states that when her petition was still pending with the Court of Appeals, Section 4, Rule 65 of the Rules of Court was amended by Supreme Court Resolution A.M. No. 00-2-03-SC, which took effect on September 1, 2000, whereby the 60-day period within which to file a petition for certiorari shall now be counted from receipt of the notice of the denial of the motion for reconsideration.  According to respondent, she received the Order denying her motion for reconsideration on August 10, 1998, thus, her filing of the petition with the Court of Appeals on October 2, 1998, was well within the 60-day period. 

          The Court agrees with respondent. 

          At the time of the filing of the petition for certiorari before the Court of Appeals on September 1, 1998, Supreme Court Circular No. 39-98, which amended Section 4, Rule 65 of the 1997 Rules of Civil Procedure, had already taken effect on September 1, 1998, after publication in several newspapers of general circulation.  The amended provision reads:

SEC. 4.  Where and when petition to be filed. – The petition may be filed not later than sixty (60) days from notice of the judgment, order or resolution sought to be assailed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court.  It may also be filed in the Court of Appeals whether or not the same is in aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction.  If it involves the acts or omissions of a quasi-judicial agency, and unless otherwise provided by law or these Rules, the petition shall be filed in and cognizable only by the Court of Appeals.

If the petitioner had filed a motion for new trial or reconsideration in due time after notice of said judgment, order or resolution, the period herein fixed shall be interrupted.  If the motion is denied, the aggrieved party may file the petition within the remaining period, but which shall not be less than five (5) days in any event, reckoned from notice of such denial.  No extension of time to file the petition shall be granted except for the most compelling reason and in no case to exceed fifteen (15) days.  (Emphasis supplied.)

 

 

          The records of the instant case show that respondent timely filed on June 8, 1998, a motion for reconsideration of the NLRC Resolution dated April 14, 1998, which respondent received on May 28, 1998.  A copy of the Resolution dated June 19, 1998 on the denial of the said motion for reconsideration was received by respondent on August 10, 1998.  Applying the aforequoted amendment to the given set of dates, 11 days had already elapsed from the date when respondent received the NLRC Resolution dated June 19, 1998.  Thus, respondent had a remaining period of 49 days reckoned from August 11, 1998 or until September 28, 1998 within which to file the petition for certiorari. 

The Court, however, takes note that further amendments were made on the reglementary period for filing a petition for certiorari under Rule 65.  On September 1, 2000, Supreme Court Circular No. 56-2000[43][37] took effect.  The latest amendment of Section 4, Rule 65 of the 1997 Rules of Civil Procedure reads:

SEC. 4.  When and where petition filed. – The petition shall be filed not later than sixty (60) days from notice of the judgment, order or resolution.  In case a motion for reconsideration or new trial is timely filed, whether such motion is required or not, the sixty (60) day period shall be counted from notice of the denial of the said motion.

The petition shall be filed in the Supreme Court or, if it relates to the acts or omissions of a lower court or of a corporation, board, officer or person, in the Regional Trial Court exercising jurisdiction over the territorial area as defined by the Supreme Court.  It may also be filed in the Court of Appeals whether or not the same is in the aid of its appellate jurisdiction, or in the Sandiganbayan if it is in aid of its appellate jurisdiction.  If it involves the acts or omissions of a quasi-judicial agency, unless otherwise provided by law or these rules, the petition shall be filed in and cognizable only by the Court of Appeals.

No extension of time to file the petition shall be granted except for compelling reason and in no case exceeding fifteen (15) days. (Emphasis supplied.)

          From the foregoing, it is clear that the 60-day period to file a petition for certiorari should be reckoned from the date of receipt of the notice of the denial of the motion for reconsideration or new trial, if one was filed. 

          In a number of cases,[44][38] this Court applied retroactively Circular No. 56-2000.  We ruled that a petition for certiorari which had been filed past the 60-day period under Section 4 of Rule 65, as amended by Circular No. 39-98, was deemed seasonably filed provided it was filed within the 60-day period counted from the date of receipt of the notice of the denial of the motion for reconsideration or new trial. 

          Instructive on this point is the discussion of the Court in Narzoles v. National Labor Relations Commission,[45][39] viz:

The Court has observed that Circular No. 39-98 has generated tremendous confusion resulting in the dismissal of numerous cases for late filing.  This may have been because, historically, i.e., even before the 1997 revision to the Rules of Civil Procedure, a party had a fresh period from receipt of the order denying the motion for reconsideration to file a petition for certiorari.  Were it not for the amendments brought about by Circular No. 39-98, the cases so dismissed would have been resolved on the merits.  Hence, the Court deemed it wise to revert to the old rule allowing a party a fresh 60-day period from notice of the denial of the motion for reconsideration to file a petition for certiorari.  Earlier this year, the Court resolved, in A.M. No. 00-2-03-SC, to further amend Section 4, Rule 65 x x x.

x x x x

The latest amendments took effect on September 1, 2000, following its publication in the Manila Bulletin on August 4, 2000 and in the Philippine Daily Inquirer on August 7, 2000, two newspapers of general circulation. 

In view of its purpose, the Resolution further amending Section 4, Rule 65 can only be described as curative in nature, and the principles governing curative statutes are applicable. 

Curative statutes are enacted to cure defects in a prior law or to validate legal proceedings which would otherwise be void for want of conformity with certain legal requirements.  They are intended to supply defects, abridge superfluities and curb certain evils.  They are intended to enable persons to carry into effect that which they have designed or intended, but has failed of expected legal consequence by reason of some statutory disability or irregularity in their own action.  They make valid that which, before the enactment of the statute was invalid.  Their purpose is to give validity to acts done that would have been invalid under existing laws, as if existing laws have been complied with.  Curative statutes, therefore, by their very essence, are retroactive.

Accordingly, while the Resolution states that the same “shall take effect on September 1, 2000, following its publication in two (2) newspapers of general circulation,” its retroactive application cannot be denied.  In short, the filing of the petition for certiorari in this Court on 17 December 1998 is deemed to be timely, the same having been made within the 60-day period provided under the curative Resolution.  We reach this conclusion bearing in mind that the substantive aspects of this case involves the rights and benefits, even the livelihood, of petitioner-employees.

          Given the above, respondent had a fresh 60-day period from August 10, 1998, the date she received a copy of the NLRC Resolution dated June 19, 1998, denying her motion for reconsideration.  Accordingly, respondent had 60 days from August 10, 1998 within which to file the petition for certiorari.  Thus, when respondent filed the petition with the Court of Appeals on October 2, 1998, said petition was seasonably filed within the reglementary period provided by the latest amendment to Section 4, Rule 65 of the 1997 Rules of Civil Procedure.

          We now proceed to the main issue for resolution in this case, which is whether the Court of Appeals committed a reversible error in reversing and setting aside the Resolutions dated April 14, 1998 and June 19, 1998 of the NLRC. 

According to the petitioner, respondent’s repeated submission of altered or tampered receipts to support her claim for reimbursement constitutes a betrayal of the employer’s trust and confidence and a serious misconduct, thus, giving cause for the termination of her employment with petitioner.

Petitioner also questions the Court of Appeals’ finding that the termination of respondent was too harsh.  Petitioner maintains that respondent “had clearly been established to have authored and caused the submission of not only one but three different receipts which she intentionally altered to justify her claimed reimbursement,” thus warranting her dismissal from the company.

          We are not convinced.

          The Labor Code mandates that before an employer may validly dismiss an employee from the service, the requirement of substantial and procedural due process must be complied with.  Under the requirement of substantial due process, the grounds for termination of employment must be based on just or authorized causes.  Article 282 of the Labor Code enumerates the just causes for the termination of employment, thus:

ART. 282. Termination by employer. – An employer may terminate an employment for any of the following causes: 

(a)                Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work; 

(b)               Gross and habitual neglect by the employee of his duties; 

(c)                Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative; 

(d)               Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and 

(e)                Other causes analogous to the foregoing.

In termination cases, the burden of proof rests on the employer to show that the dismissal was for just cause.  Otherwise, an employee who is illegally dismissed “shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.”[46][40] 

After examining the records of the case, this Court finds that respondent’s dismissal from employment was not grounded on any of the just causes enumerated under Article 282 of the Labor Code.

At the outset, it is important to note that the term “trust and confidence” is restricted to managerial employees.[47][41]  In Samson v. National Labor Relations Commission,[48][42] the Court, citing Section 2(b), Rule I, Book III of the Omnibus Rules Implementing the Labor Code, enumerated the conditions for one to be properly considered a managerial employee:

(1) Their primary duty consists of the management of the establishment in which they are employed or of a department or sub-division thereof;

(2) They customarily and regularly direct the work of two or more employees therein; [and]

(3) They have the authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to the hiring and firing and as to the promotion or any other change of status of other employees are given particular weight.

In the instant case, respondent was the Senior Financial Accountant with the Job Description of a Financial Project Analyst.  Respondent, among others, “provides support in the form of financial analyses and evaluation of alternative strategies or action plans to assist management in strategic and operational decision-making, x x x liaises with the Bottler to comply with Corporate Bottler financial reporting requirements and to ensure Bottler’s plans are aligned with TCCEC’s, x x x and assists management on various initiatives on ad hoc basis.”[49][43]

In Nokom v. National Labor Relations Commission,[50][44] this Court set the guidelines for the application of the doctrine of loss of confidence –

(a)    Loss of confidence should not be simulated;

(b)   It should not be used as a subterfuge for causes which are improper, illegal or unjustified;

(c)    It may not be arbitrarily asserted in the face of overwhelming evidence to the contrary; and

(d)   It must be genuine, not a mere afterthought to justify earlier action taken in bad faith.

In the instant case, the basis for terminating the employment of respondent was for gross violation of the company’s rules and regulations, as specified in the termination letter dated April 4, 1998, to wit:

Based on the facts gathered during the investigation vis-avis (sic) the contradictory explanations you have given when you testified, the testimony of the person who delivered the Shakey’s products you ordered as well as McDonald’s and Shakey’s certifications to the effect that the items and the dates appearing on the receipt/invoices issued to you were the actual items and dates of said invoices and that the alteration on the face of said invoice were not done at their respective establishments or by any of their employees, morally convinced us that you were the one who caused such alterations for personal gain.  You have thereby knowingly, willingly, deliberately and fraudulently submitted tampered and/or altered receipts to support your petty cash reimbursements in gross violation of the company’s rules and regulations which punishes with immediate dismissal the “fraudulent submission of any item of expense” (Rule II, No 15(d).[51][45]

          Evidently, no mention was made regarding petitioner’s alleged loss of trust and confidence in respondent.  Neither was there any explanation nor discussion of the alleged sensitive and delicate position of respondent requiring the utmost trust of petitioner. 

          It bears emphasizing that the right of an employer to dismiss its employees on the ground of loss of trust and confidence must not be exercised arbitrarily.  For loss of trust and confidence to be a valid ground for dismissal, it must be substantial and founded on clearly established facts.  Loss of confidence must not be used as a subterfuge for causes which are improper, illegal or unjustified; it must be genuine, not a mere afterthought, to justify earlier action taken in bad faith.  Because of its subjective nature, this Court has been very scrutinizing in cases of dismissal based on loss of trust and confidence because the same can easily be concocted by an abusive employer.[52][46]  Thus, when the breach of trust or loss of confidence theorized upon is not borne by clearly established facts, as in the instant case, such dismissal on the ground of loss and confidence cannot be countenanced.

          In the instant case, it was only in the Reply to Respondent’s Comment[53][47] dated October 11, 2002, that petitioner made mention of another ground for the dismissal of respondent, that of serious misconduct, when she submitted altered or tampered receipts to support her claim for reimbursement.  Such allegation appears to be a mere afterthought, being tardily raised only in the Reply. 

In Marival Trading, Inc. v. National Labor Relations Commission,[54][48] we held, thus:

Misconduct has been defined as improper or wrong conduct.  It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful character, and implies wrongful intent and not mere error of judgment.  The misconduct to be serious must be of such grave and aggravated character and not merely trivial and unimportant.  Such misconduct, however serious, must nevertheless be in connection with the employee’s work to constitute just cause for his separation.  Thus, for misconduct or improper behavior to be a just cause for dismissal, (a) it must be serious; (b) must relate to the performance of the employee’s duties; and (c) must show that the employee has become unfit to continue working for the employer.  Indeed, an employer may not be compelled to continue to employ such person whose continuance in the service would be patently inimical to his employer’s business.[55][49]

          In this light, the alleged infractions of respondent could hardly be considered serious misconduct.  It is well to stress that in order to constitute serious misconduct which will warrant the dismissal of an employee, it is not sufficient that the act or conduct complained of has violated some established rules or policies.  It is equally important and required that the act or conduct must have been done with wrongful intent.  Such is, however, lacking in the instant case. 

          While this Court does not condone respondent’s act of submitting altered and/or tampered receipts to support her claim for reimbursement, we nevertheless agree with the finding of the Court of Appeals that, under the attendant facts, the dismissal meted out on respondent appears to be too harsh a penalty. 

The employer’s right to conduct the affairs of its business, according to its own discretion and judgment, is well-recognized.  An employer has a free reign and enjoys wide latitude of discretion to regulate all aspects of employment, including the prerogative to instill discipline in its employees and to impose penalties, including dismissal, upon erring employees.  This is a management prerogative, where the free will of management to conduct its own affairs to achieve its purpose takes form.  The only criterion to guide the exercise of its management prerogative is 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.[56][50]

As respondent’s employer, petitioner has the right to regulate, according to its discretion and best judgment, work assignments, work methods, work supervision, and work regulations, including the hiring, firing and discipline of its employees.  Indeed, petitioner has the management prerogative to discipline its employees, like herein respondent, and to impose appropriate penalties on erring workers pursuant to company rules and regulations.[57][51]   This Court upholds these management prerogatives so long as they are exercised in good faith for the advancement of the employer’s interest and not for the purpose of defeating or circumventing the rights of the employees under special laws and valid agreements.[58][52]

In the instant case, petitioner alleged that under its rules and regulations, respondent’s submission of fraudulent items of expense is punishable by dismissal.  However, petitioner’s rules cannot preclude the State from inquiring whether the strict and rigid application or interpretation thereof would be harsh to the employee.  Even when an employee is found to have transgressed the employer’s rules, in the actual imposition of penalties upon the erring employee, due consideration must still be given to his length of service and the number of violations committed during his employ.[59][53]  Respondent had no previous record in her 9½ years of service; this would have been her first offense.  Respondent had also been a recipient of various commendations attesting to her competence and diligence in the performance of her duties, not only from petitioner, but also from petitioner’s counterparts in Poland[60][54] and Thailand.[61][55]  Respondent also countered that she acted in good faith and with no wrongful intent when she submitted the receipts in support of her claim for reimbursement of meal allowance.  According to respondent, only the dates or items were altered on the receipts.  She did not claim more than what was allowed as meal expense for the days that she rendered overtime work.  She believed that the submission of receipts was simply for records-keeping, since she actually rendered overtime work on the dates that she claimed for meal allowance.  All told, this Court holds that the penalty of dismissal imposed on respondent is unduly oppressive and disproportionate to the infraction which she committed.  A lighter penalty would have been more just.  

          As correctly held by the Court of Appeals, by mandate of the law itself, the provisions of the Labor Code are to be construed liberally in favor of labor.  Thus, in Fujitsu Computer Products Corporation of the Phils. v. Court of Appeals,[62][56] we held:

The Court is wont to reiterate that while an employer has its own interest to protect, and pursuant thereto, it may terminate a managerial employee for a just cause, such prerogative to dismiss or lay-off an employee must be exercised without abuse of discretion.  Its implementation should be tempered with compassion and understanding.  The employer should bear in mind that, in the execution of the said prerogative, what is at stake is not only the employee’s position, but his very livelihood.  The Constitution does not condone wrongdoing by the employee; nevertheless, it urges moderation of the sanction that may be applied to him.  Where a penalty less punitive would suffice, whatever missteps may have been committed by the worker ought not be visited with a consequence so severe as dismissal from employment.  Indeed, the consistent rule is that if doubts exist between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter.  The employer must affirmatively show rationally adequate evidence that the dismissal was for justifiable cause.

          Under Article 279 of the Labor Code, an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

          After a finding of illegal dismissal herein, we apply the foregoing provision entitling respondent Clarita P. Gacayan to reinstatement without loss of seniority rights and other privileges and full backwages, inclusive of allowances and other benefits or their monetary equivalent computed from the time the compensation was not paid up to the time of her reinstatement.  Thus, the award of backwages by the Court of Appeals is in order.  However, the Court of Appeals’ period of computation of the award of backwages must be modified.  The Court of Appeals ruled that:

WHEREFORE, the petition is GRANTED and the Resolutions, dated April 14, 1998 and June 19, 1998, both issued by public respondent NLRC, are hereby SET ASIDE.  [Petitioner] Coca Cola Export Corporation is hereby directed to immediately reinstate [respondent] to her former position, if possible, otherwise, to a substantially equivalent position without loss of seniority rights and with full backwages, based on her last monthly salary, to be computed from the date of her dismissal from the service up to the date of finality of this decision, without any qualifications or deductions.  No costs.[63][57]

          In line with Article 279 of the Labor Code and prevailing jurisprudence,[64][58] the award of backwages should be modified in the sense that backwages should be computed from the time the compensation was not paid up to the time of reinstatement.

WHEREFORE, the petition is hereby DENIED. The Decision dated May 30, 2001 and subsequent Resolution dated August 9, 2001 of the Court of Appeals are hereby AFFIRMED WITH MODIFICATION that backwages be awarded from the time the compensation was not paid up to the time of her actual reinstatement. 

SO ORDERED.

                                                 TERESITA J. LEONARDO-DE CASTRO

                                       Associate Justice

WE CONCUR:

RENATO C. CORONA

Chief Justice

Chairperson

PRESBITERO J. VELASCO, JR.Associate Justice DIOSDADO M. PERALTAAssociate Justice
   
   
   
   
   
   
JOSE PORTUGAL PEREZAssociate Justice

 

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

RENATO C. CORONA

Chief Justice

 

[1][46]          Labor v. National Labor Relations Commission, G.R. No. 110388, September 14, 1995, 248 SCRA 183, 199-200.

[2][44]          390 Phil. 1228, 1244 (2000), citing Vitarich Corporation v. National Labor Relations Commission, 367 Phil. 1, 12 (1999).

[3][48]          G.R. No. 169600, June 26, 2007, 525 SCRA 708.

[4][49]          Id. at 726-727.

[5][56]          494 Phil. 697, 728 (2005), citing Maglutac v. National Labor Relations Commission, G.R. No. 78345, September 21, 1990, 189 SCRA 767, 778; Austria v. National Labor Relations Commission, 371 Phil. 340, 361 (1999); Asuncion v. National Labor Relations Commission, 414 Phil. 329, 341-342 (2001).

[6][58]          Cocomangas Hotel Beach Resort v. Visca, G.R. No. 167045, August 29, 2008, 563 SCRA 705, 722; Marival Trading, Inc. v. National Labor Relations Commission, supra note 48 at 731-732; Kay Products, Inc. v. Court of Appeals, 502 Phil. 783, 797-798 (2005).

[7][1]           Rollo, pp. 9-26; penned by Associate Justice Teodoro P. Regino with Associate Justices Delilah Vidallon-Magtolis and Josefina Guevara-Salonga, concurring.

[8][2]           Id. at 27.

[9][3]           Id. at 321-341.

[10][4]          Id. at 356-357.

[11][5]          Id. at 139.

[12][6]          Id. at 141.

[13][7]          Id. at 142.

[14][8]          Id. at 144.

[15][9]          Id. at 145.

[16][10]         Id. at 146.

[17][11]         Id. at 147.

[18][12]         Id. at 148.

[19][13]         Id. at 149-150.

[20][14]         Id. at 115.

[21][15]         Id. at 152.

[22][16]         Id. at 153-160.

[23][17]         Id. at 161.

[24][18]         Id. at 162.

[25][19]         Id. at 163.

[26][20]         Id. at 164.

[27][21]         Id. at 119.

[28][22]         Id. at 166-167.

[29][23]         Id. at 117.

[30][24]         Id. at 118.

[31][25]         Id. at 168.

[32][26]         Id. at 169-170.

[33][27]         Id. at 88-89.

[34][28]         Id. at 95-96.

[35][29]         Id. at 121.

[36][30]         Id.

[37][31]         Id. at 266-289.

[38][32]         Id. at 282-284.

[39][33]         Id. at 321-341.

[40][34]         Id. at 339-341.

[41][35]         Id. at 356-357.

[42][36]         Id. at 23-25.

[43][37]         Per Supreme Court En Banc Resolution dated August 1, 2000 in A.M. No. 00-2-03-SC.

[44][38]         Lascano v. Universal Steel Smelting Co., Inc., G.R. No. 146019, June 8, 2004, 431 SCRA 248; Ong v. Mazo, G.R. No. 145542, June 4, 2004, 431 SCRA 56; Webb v. Secretary of Justice, 455 Phil. 307 (2003); Unity Fishing Development Corporation v. Court of Appeals, 403 Phil. 876 (2001).

[45][39]         395 Phil. 758, 763-765 (2000). 

[46][40]         Labor Code, Article 279.

[47][41]         Dela Cruz v. National Labor Relations Commission, 335 Phil. 932, 943 (1997).

[48][42]         386 Phil. 669, 687 (2000).

[49][43]         Rollo, p. 196.

[50][44]         390 Phil. 1228, 1244 (2000), citing Vitarich Corporation v. National Labor Relations Commission, 367 Phil. 1, 12 (1999).

[51][45]         Rollo, p. 170.

[52][46]         Labor v. National Labor Relations Commission, G.R. No. 110388, September 14, 1995, 248 SCRA 183, 199-200.

[53][47]         Rollo, pp. 511-527.

[54][48]         G.R. No. 169600, June 26, 2007, 525 SCRA 708.

[55][49]         Id. at 726-727.

[56][50]         St. Michael’s Institute v. Santos, 422 Phil. 723, 732-733 (2001).

[57][51]         Deles, Jr. v. National Labor Relations Commission, 384 Phil. 271, 281-282 (2000).

[58][52]         Challenge Socks Corporation v. Court of Appeals, G.R. No. 165268, November 8, 2005, 474 SCRA 356, 362-363.

[59][53]         Philippine Long Distance Telephone Company v. National Labor Relations Commission, 362 Phil. 352, 358 (1999).

[60][54]         Rollo, p. 111.

[61][55]         Id. at 113.

[62][56]         494 Phil. 697, 728 (2005), citing Maglutac v. National Labor Relations Commission, G.R. No. 78345, September 21, 1990, 189 SCRA 767, 778; Austria v. National Labor Relations Commission, 371 Phil. 340, 361 (1999); Asuncion v. National Labor Relations Commission, 414 Phil. 329, 341-342 (2001).

[63][57]         Rollo, p. 25.

[64][58]         Cocomangas Hotel Beach Resort v. Visca, G.R. No. 167045, August 29, 2008, 563 SCRA 705, 722; Marival Trading, Inc. v. National Labor Relations Commission, supra note 48 at 731-732; Kay Products, Inc. v. Court of Appeals, 502 Phil. 783, 797-798 (2005).

Comment

ARTICLE 0011: PROSPECTS ON WORLD ECONOMY IN 2011 ACCORDING TO U.N.

Filed under: GLOBAL ECONOMICS — Leave a comment

 

World Economic Situation and Prospects 2011 Report

UN: Global economy unlikely to improve significantly next year

Dec 01, 2010

A United Nations report unveiled today paints a gloomy picture of the performance of the global economy next year, with growth projected to be a meagre 3.1 per cent, followed by 3.5 per cent in 2012 – rates that are insufficient to spur the recovery of the jobs that were lost during the economic crisis.

The lack of employment continues to put a damper on economic recovery, according to the World Economic Situation and Prospects 2011, prepared by the UN Department of Economic and Social Affairs, the UN Conference on Trade and Development (UNCTAD) and the five UN economic commissions.

Between 2007 and the end of 2009, at least 30 million jobs were lost worldwide as a result of the global financial crisis, the report, previewed in New York, says. It adds that efforts by governments to embark on fiscal austerity can only further suppress the prospects for a faster recovery of employment.

“We are not out of the woods yet and still major risks are looming,” said Rob Vos, the Director of the Development Policy and Analysis Division of DESA, who led the team of UN economists who prepared the report.

“The road to recovery – we expect to be long and bumpy still. The speed of the recovery as we have seen starting in the middle of 2009 has started to decelerate in the middle of this year particularly owing to weaknesses in the major developed economies, but we also expect that to drag down the growth in developing countries,” Mr. Vos told a news conference at UN Headquarters.

The report says that serious risks to the global economy include waning cooperative spirit among major economies, which has weakened the effectiveness of responses to the crisis. It notes that uncoordinated monetary responses have become a source of turbulence and uncertainty in financial markets.

Among developed economies, the United States has been on a recovery trajectory, yet the pace of that rebound has been the weakest in the country’s post-recession experience, according to the report. At 2.6 per cent in 2010, growth in the US is expected to moderate further to 2.2 per cent in 2011 before improving slightly to 2.8 per cent in 2012.

That pace of growth is not expected to make much of a dent in unemployment rates, and recovering the jobs lost in the US during the crisis would take at least another four years.

Prospects for Europe and Japan are even dimmer, the report notes. Assuming continued, albeit moderate, recovery in Germany, the gross domestic product (GDP) growth in the Euro area is forecast to virtually stagnate at 1.3 per cent in 2011 and 1.9 per cent in 2012.

Japan’s initially strong rebound, fuelled by net export growth, started to falter in the course of 2010 as a result of persistent deflation and elevated public debt. The Asian country’s economy is expected to grow by a meagre 1.1 per cent in 2011 and 1.4 per cent in 2012.

Among the economies in transition, GDP of the Commonwealth of Independent States (CIS) and Georgia rebounded by about 4 per cent on average in 2010, up from the deep contraction of more than 7 per cent in 2009. In 2011 and 2012, the pace of recovery in South-eastern Europe is expected to be rather subdued.

The survey shows that developing countries continue to drive the global recovery, but their output growth is also expected to shrink to 6 per cent during 2011-2012, down from 7 per cent in 2010, because of the slowdown in the advanced countries and the phasing out of stimulus measures.

Developing countries in Asia, led by China and India, continue to show the strongest growth performance, but will moderate to around 7 per cent in 2011 and 2012, according to the report.

Growth in Latin America is projected to remain relatively strong at around 4 per cent, though less robust than the GDP growth of 5.6 per cent estimated for 2010. Brazil, the engine of regional growth, continues with strong domestic demand to boost export growth of neighbouring countries. The sub-region also benefits from strengthened economic ties with the emerging economies in Asia.

In the Middle East and other countries in Western Asia, recovery is also expected to moderate from 5.5 per cent in 2010 to 4.7 per cent in 2011 and 4.4 per cent in 2012. The average annual output growth will be lower than the pre-crisis rate.

Recovery has been solid in most of Africa, where the rebound is expected to continue at about 5 per cent per year in 2011 and 2012, but this is well below potential, and conditions vary across the region. The economies in East Africa are showing strong growth, but several of the poorest countries, especially those in the Sahel region, have suffered from droughts and conditions of insecurity, which is causing hunger and hampering the recovery of their economies.

Suggestions offered in the report that might lead to sustainable recovery include providing additional fiscal stimulus and redesigning the stimulus and other economic policies to lend a stronger orientation towards measures that directly support job growth, reduce income inequality and strengthen sustainable production capacity on the supply side.

Other options include finding greater synergy between fiscal and monetary stimulus, while counteracting damaging international spill-over effects in the form of increased currency tensions and volatile short-term capital flows; ensure that sufficient and stable development finance is made available for developing countries; and finding ways for credible and effective policy coordination among major economies.

Comment

LEGAL NOTE 0008: DISTINCTION BETWEEN JURISDICTION OF DARAB AND JURISDICTION OF DAR SECRETARY.

Filed under: LEGAL NOTES — Leave a comment

SOURCE: FEDERICO SORIANO, CIPRIANO BAUTISTA, JOSE TORALBA, CILODONIO TANTAY, MARIANO BRAVO, ROLANDO TORALBA, FAUSTINO BRAVO, CRISTINA TORALBA, BENJAMIN LACAYANGA, ROSALIA TANTAY, GABRIEL DELA VEGA, ROGELIO BRAVO, and ROMEO TANTAY, represented by their Attorney-in-Fact, TEODORICO GAMBA vs. ANA SHARI B. BRAVO, REBECCA BENITO, JOHN MEJIA, MILA BRAVO, BENITO BRAVO, ERNESTO BRAVO, JOSE ISRAEL BRAVO, JUANA BRAVO, DARAB CENTRAL, and the HON. COURT OF APPEALS, FORMER FIFTH DIVISION (G.R. NO. 152086, 15 DECEMBER 2010, J. LEONARDO DE CASTRO)

 

JURISDICTION OF DARAB AS DISTINGUISHED FROM JURISDICTION OF DAR (EXHAUSTIVE DISCUSSION):

Section 50 of the CARL bestows upon the DAR quasi-judicial powers:

SEC. 50.  Quasi-Judicial Powers of the DAR.  –  The DAR is hereby vested with primary jurisdiction to determine and adjudicate agrarian reform matters and shall have exclusive original jurisdiction over all matters involving the implementation of agrarian reform, except those falling under the exclusive jurisdiction of the Department of Agriculture (DA) and the Department of Environment and Natural Resources (DENR).

In Sta. Rosa Realty Development Corporation v. Amante,[1][20] the Court pointed out that the jurisdiction of the DAR under the aforequoted provision is two-fold.  The first is essentially executive and pertains to the enforcement and administration of the laws, carrying them into practical operation and enforcing their due observance, while the second is judicial and involves the determination of rights and obligations of the parties. 

Jurisdiction over agrarian disputes lies with the DARAB.  Section 3(d) of the CARL defines an agrarian dispute as follows:

(d)      Agrarian dispute refers to any controversy relating to tenurial arrangements, whether leasehold, tenancy, stewardship or otherwise, over lands devoted to agriculture, including disputes concerning farmworkers associations or representation of persons in negotiating, fixing, maintaining, changing or seeking to arrange terms or conditions of such tenurial arrangements.

It includes any controversy relating to compensation of lands acquired under this Act and other terms and conditions of transfer of ownership from landowners to farmworkers, tenants and other agrarian reform beneficiaries, whether the disputants stand in the proximate relation of farm operator and beneficiary, landowner and tenant, or lessor and lessee. (Emphasis supplied.)

At the time the present controversy arose, the conduct of proceedings before the Board and its adjudicators were governed by the DARAB New Rules of Procedures, which were adopted and promulgated on May 30, 1994, and came into effect on June 21, 1994 after publication (1994 DARAB Rules).[2][21]  The 1994 DARAB Rules identified the cases over which the DARAB shall have jurisdiction, viz:

RULE II

JURISDICTION OF THE ADJUDICATION BOARD

SECTION 1.  Primary and Exclusive Original and Appellate Jurisdiction.  –  The Board shall have primary and exclusive jurisdiction, both original and appellate, to determine and adjudicate all agrarian disputes involving the implementation of the Comprehensive Agrarian Reform Program (CARP) under Republic Act No. 6657, Executive Order Nos. 228, and 129-A, Republic Act No. 3844 as amended by Republic Act No. 6389, Presidential Decree No. 27 and other agrarian laws and their implementing rules and regulations.  Specifically, such jurisdiction shall include but not be limited to cases involving the following:

a)       The rights and obligations of persons, whether natural or juridical, engaged in the management, cultivation and use of all agricultural lands covered by the CARP and other agrarian laws;

b)       The valuation of land, and the preliminary determination and payment of just compensation, fixing and collection of lease rentals, disturbance compensation, amortization payments, and similar disputes concerning the functions of the Land Bank of the Philippines (LBP);

c)       The annulment or cancellation of lease contracts or deeds of sale or their amendments involving lands under the administration and disposition of the DAR or LBP;

d)       Those case arising from, or connected with membership or representation in compact farms, farmers’ cooperatives and other registered farmers’ associations or organizations, related to lands covered by the CARP and other agrarian laws;

e)       Those involving the sale, alienation, mortgage, foreclosure, pre-emption and redemption of agricultural lands under the coverage of the CARP or other agrarian laws;

f)        Those involving the issuance, correction and cancellation of Certificates of Land Ownership Award (CLOAs) and Emancipation Patents (EPs) which are registered with the Land Registration Authority;

g)       Those cases previously falling under the original and exclusive jurisdiction of the defunct Court of Agrarian Relations under Section 12 of Presidential No. 946, except sub-paragraph (Q) thereof and Presidential Decree No. 815.

It is understood that the aforementioned cases, complaints or petitions were filed with the DARAB after August 29, 1987.

Matters involving strictly the administrative implementation of Republic Act No. 6657, otherwise known as the Comprehensive Agrarian Reform Law (CARP) of 1988 and other agrarian laws as enunciated by pertinent rules shall be the exclusive prerogative of and cognizable by the Secretary of the DAR.

h)      And such other agrarian cases, disputes, matters or concerns referred to it by the Secretary of the DAR. (Emphasis supplied.)        

SECTION 2.  Jurisdiction of the Regional and Provincial Adjudicator. – The RARAD and the PARAD shall have concurrent original jurisdiction with the Board to hear, determine and adjudicate all agrarian cases and disputes, and incidents in connection therewith, arising within their assigned territorial jurisdiction.

On the other hand, cases involving agrarian law implementation fall within the jurisdiction of the DAR Secretary.  DAR Administrative Order No. 6, series of 2000, otherwise known as the Rules of Procedure for Agrarian Law Implementation (ALI) Cases, were promulgated only on August 30, 2000, and became effective on September 15, 2000 after publication (2000 Rules for ALI Cases).[3][22]  Rule I, Section 2 of said Rules delineates the jurisdiction of the DAR Secretary, thus:

SEC. 2.  Cases Covered – These Rules shall govern cases falling within the exclusive jurisdiction of the DAR Secretary which shall include the following:

(a)      Classification and identification of landholdings for coverage under the Comprehensive Agrarian Reform Program (CARP), including protests or oppositions thereto and petitions for lifting of coverage;

(b)      Identification, qualification or disqualification of potential farmer-beneficiaries;

(c)      Subdivision surveys of lands under CARP;

(d)      Issuance, recall or cancellation of Certificates of Land Transfer (CLTs) and CARP Beneficiary Certificates (CBCs) in cases outside the purview of Presidential Decree (PD) No. 816, including the issuance, recall or cancellation of Emancipation Patents (EPs) or Certificates of Land Ownership Awards (CLOAs) not yet registered with the Register of Deeds;

(e)                Exercise of the right of retention by landowner;

(f)       Application for exemption under Section 10 of RA 6657 as implemented by DAR Administrative Order No. 13 (1990);

(g)      Application for exemption pursuant to Department of Justice (DOJ) Opinion No. 44 (1990) as implemented by DAR Administrative Order No. 6 (1994);

(h)     Application for exemption under DAR Administrative Order No. 9 (1993);

(i)       Application for exemption under Section 1 of RA 7881, as implemented by DAR Administrative Order No. 3 (1995);

(j)       Issuance of certificate of exemption for lands subject of Voluntary Offer to Sell (VOS) and Compulsory Acquisition (CA) found unsuitable for agricultural purposes pursuant to DAR Memorandum Circular No. 34 (1997);

(k)      Application for conversion of agricultural lands to residential, commercial, industrial or other non-agricultural uses including protests or oppositions thereto;

(l)       Right of agrarian reform beneficiaries to homelots;

(m)     Disposition of excess area of the farmer-beneficiary’s landholdings;

(n)     Transfer, surrender or abandonment by the farmer-beneficiary of his farmholding and its disposition;

(o)      Increase of awarded area by the farmer-beneficiary;

(p)      Conflict of claims in landed estates and settlements; and

(q)      Such other matters not mentioned above but strictly involving the administrative implementation of RA 6657 and other agrarian laws, rules and regulations as determined by the Secretary.

Rule I, Section 3 of the 2000 Rules for ALI Cases explicitly excludes from the application thereof cases that fall within the exclusive original jurisdiction of the DARAB.

In determining whether the DARAB or the DAR Secretary had jurisdiction over the subject matter of DARAB Case Nos. 01-689 to 710-WP-’95, the Court adverts to the following rules on jurisdiction which it had established in Heirs of Julian dela Cruz and Leonora Talaro v. Heirs of Alberto Cruz[4][23]:

It is axiomatic that the jurisdiction of a tribunal, including a quasi-judicial officer or government agency, over the nature and subject matter of a petition or complaint is determined by the material allegations therein and the character of the relief prayed for, irrespective of whether the petitioner or complainant is entitled to any or all such reliefs.  Jurisdiction over the nature and subject matter of an action is conferred by the Constitution and the law, and not by the consent or waiver of the parties where the court otherwise would have no jurisdiction over the nature or subject matter of the action.  Nor can it be acquired through, or waived by, any act or omission of the parties.  Moreover, estoppel does not apply to confer jurisdiction to a tribunal that has none over the cause of action.   The failure of the parties to challenge the jurisdiction of the DARAB does not prevent the court from addressing the issue, especially where the DARAB’s lack of jurisdiction is apparent on the face of the complaint or petition.

Indeed, the jurisdiction of the court or tribunal is not affected by the defenses or theories set up by the defendant or respondent in his answer or motion to dismiss.  Jurisdiction should be determined by considering not only the status or the relationship of the parties but also the nature of the issues or questions that is the subject of the controversy.  If the issues between the parties are intertwined with the resolution of an issue within the exclusive jurisdiction of the DARAB, such dispute must be addressed and resolved by the DARAB.  The proceedings before a court or tribunal without jurisdiction, including its decision, are null and void, hence, susceptible to direct and collateral attacks.[5][24]

Guided accordingly by the foregoing jurisprudence, the Court turns to respondents’ Complaint before the DARAB, wherein they alleged: 

2.       That the [herein respondents] are the owners of less than five (5) hectares each of the 26 hectares of land located at barangays Tomling and Nalsian, Malasiqui, Pangasinan, x x x.

3.       That of the aforesaid 26 hectares of land, only about 6 hectares are tenanted by seven agricultural [lessees] namely defendants Gervacio Sergote, Anacleto Torralba, Saturnino Idos, Faustino Bravo, Mariano Bravo, Teofilo Tantay, Idelfonso Tantay and Pelagio Tantay;

4.       That 20 hectares portion of the said 26 hectares is not tenanted and although it is planted to 456 mango trees, the areas in between the rows of mango trees have never been cultivated and planted to any crop;

x x x x

6.       That the [respondents] have decided to relocate the St. Martin’s Pharmaceuticals, Inc. and to construct a BRAVO AGRO-INDUSTRIAL COMPLEX in the untenanted portions of the land in question x x x;

7.       That in accordance with the relocation and development plans of the St. Martin’s Pharmaceuticals, Inc. and the construction of the BRAVO AGRO-INDUSTRIAL COMPLEX, [respondents] and the defendants Teofilo Tantay, Celestino Manipon, Romeo Tantay, Gabriel dela Vega, Mariano Bravo, Cristina Torralba, Mauricio Rubio, Salvador Bautista, Faustino Bravo, Federico Soriano, Josefina Gutierrez, and Saturnino Idos executed their “Compromise Agreement” dated November 3, 1992 which provides for the relocation and transfer of their houses to a homelot of 240 square meters each within the land in question for them and their family to conveniently enjoy the benefits to be provided by the complex;

8.       That the relocation of said defendants’ houses will not affect in any manner the security of tenure of the tenants on the riceland portion of the land in question;

9.       That in 1993, the [respondents], relying on the compromise agreement they have with the defendants, started the implementation of their aforestated projects by strategically placing the “BRAVO AGRO-INDUSTRIAL COMPLEX” sign board in the land in question and started making the needed concrete hollow blocks;

x x x x

11.     Specific Performance.  That the defendants in violation of their compromise agreement and on the instigation of a cult leader refused to comply with their compromise agreement;

12.     That instead of transferring and relocating their respective houses, the said defendants illegally demanded of the Municipal Agrarian Reform Officer of Malasiqui, Pangasinan, for the compulsory coverage of the land in question under the OLT program of the government under Pres. Decree No. 27 and Rep. Act. 6657 otherwise known as the Comprehensive Agrarian Reform Law of 1988;

13.     That because the land in question is not coverable under the OLT provisions of P.D. No. 27 and R.A. No. 6657 as the sellers from whom the [respondents] acquired the lands in question did not have five (5) hectares each and the latter likewise did not have five (5) hectares each, the Municipal Agrarian Reform Officer of Malasiqui, Pangasinan did not place the lands in question under the coverage of the OLT program under P.D. No. 27 nor under R.A. No. 6657;

x x x x

16.     COLLECTION OF UNPAID RENTALS.  That since the year 1992, the defendants have deliberately refused and still refuse to pay the lease rentals of their respective tillage on the riceland portions of the land in question;

 

x x x x

29.     That the defendants, in their illegal desire to convert the untenanted portions of the land in question as parts of their tillage, have unlawfully started plowing the untenanted surrounding areas and the areas in between the rows of mango fruit bearing trees in the mango orchard portion of the land in question.[6][25]

In sum, the material allegations in respondents’ Complaint are: (1) that several of the defendants are the agricultural tenants/lessees of respondents’ rice lands; (2) that the defendants entered into a Compromise Agreement with respondents in which the former agreed to give up portions of the subject properties they were tilling in exchange for home lots also located on the subject properties; (3) that the Compromise Agreement shall not affect defendants’ security of tenure; (4) that instigated by a cult leader, defendants refused to comply with the Compromise Agreement and, instead, demanded from the MARO that the subject properties be compulsorily placed under the land transfer program of the Government;  (5) that the defendants have also refused to pay rent for the portion of the rice lands they were tilling; and (6) that the defendants have also begun cultivating portions of the subject properties which are untenanted and planted with mango trees.  Based on these allegations, respondents sought the following reliefs:

WHEREFORE, it is most respectfully prayed that an injunction order be issued against the defendants restraining them from performing farmworks on the non riceland portion of the land in question and restraining them from harvesting mango fruits from the mango trees in the mango orchard portion of the land in question and after due hearing judgment issue:

1.                  Ejecting the defendants from the land in question;

2.                  Ordering the defendants jointly and solidarily liable to [herein respondents’] attorneys to be proved hereinafter and pay [respondents] P500,000.00 moral damages and P500,00.00 Exemplary damages and P500,000.00 actual damages.

3.                  Ordering the defendants to pay the deliberately unpaid rentals of the lands in question since 1992 up to the present.

4.                  Making permanent the injunction order against the defendants;

5.                  Granting such other reliefs and remedies just and equitable in favor of the [respondents] under the premises.[7][26]

The material allegations and reliefs sought in respondents’ Complaint essentially established a case involving the rights and obligations of respondents and defendants as landlords and agricultural tenants/lessees, respectively, taking into account their Compromise Agreement; as well as the fixing and collection of lease rentals.  The DARAB properly took cognizance of the case as it constituted agrarian disputes, well-within the jurisdiction of the DARAB under Rule II, Section 1, paragraphs (a) and (b) of the 1994 DARAB Rules. 

Moreover, even when respondents alleged in their Complaint that the subject properties are not subject to the OLT program under the Tenants Emancipation Decree and the CARL because each of the respondents does not own more than five hectares, said allegation was not fundamental in establishing respondents’ causes of action against defendants.  In fact, it was defendants who explicitly raised and discussed in their Position Paper before the DARAB the issue of whether the subject properties are covered by the Tenants Emancipation Decree and the CARL.[8][27]  As part of their defense, defendants claimed that all of the subject properties, with a total area of 26 hectares,[9][28] are actually owned by respondent Ernesto S. Bravo alone, and are tenanted and planted with rice, corn, bananas, and root crops.  They argued that under the Tenants Emancipation Decree, tenanted rice and corn lands in excess of the seven hectares a landowner is allowed to retain shall be awarded to the tenant-farmers. 

It bears to reiterate that jurisdiction over the nature of the action cannot be made to depend upon the defenses set up in the court or upon a motion to dismiss for, otherwise, the question of jurisdiction would depend almost entirely on the defendant.  Once jurisdiction is vested, the same is retained up to the end of the litigation.[10][29]  Therefore, the DARAB was only exercising the jurisdiction vested upon it over DARAB Case Nos. 01-689 to 710-WP-’95 when it directly addressed the issue raised by defendants themselves, and adjudged that the subject properties are not subject to the OLT program under the Tenants Emancipation Decree and the CARL since respondents each owned an area well-within the retention limits allowed landowners by said agrarian laws.     

        Incidentally, the DARAB also took into consideration and only stayed consistent with an earlier finding by the MARO that the subject properties are not within the coverage of the OLT program of the Government.  And while it is true that the MARO’s ruling may still be appealed to higher DAR officials, petitioners failed to present any proof that such appeal had indeed been taken or that the said ruling had already been reversed.

[1][20]          493 Phil. 570, 606 (2005).

[2][21]          The 1994 DARAB Rules were published in the Philippine Times Journal and the Philippine Star on June 6, 1994.  They became effective 15 days thereafter.  Said Rules were subsequently repealed/modified by the 2003 DARAB Rules and then the 2009 DARAB Rules.

[3][22]          The 2000 Rules for ALI Cases were published in The Philippine Star and The Malaya on August 30, 2000.  They became effective 10 days thereafter.  Said Rules were subsequently modified/repealed by DAR Administrative Order No. 3, series of 2003, otherwise known as the 2003 Rules of Procedure for ALI Cases. 

[4][23]          G.R. No. 162980, November 22, 2005, 475 SCRA 743.

[5][24]          Id. at 755-757.

[6][25]          DAR records, pp. 3-7.

[7][26]          Id. at 2.

[8][27]          Id. at. 208-210.

[9][28]          The total land area of the subject properties actually measures only 24.5962 hectares.

[10][29]         Heirs of Rafael Magpily v. De Jesus, 511 Phil. 14, 21 (2005).

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