Supreme Court: Factual Antecedents
Supreme Court: Factual Antecedents
SUPREME COURT
Manila
FIRST DIVISION
DECISION
In labor cases, all that is required is for the employer to show substantial evidence to justify the
termination of the employee.
This Petition for Review on Certiorari1 under Rule 45 of the Rules of Court assails the
Decision2 dated November 15, 2006 and the Resolution3 dated February 6, 2007 of the Court of
Appeals (CA) in CA-G.R. CEB-SP No. 01220.
Factual Antecedents
On June 16, 1998, respondent Zaldy E. Baptisma was employed by petitioner Apo Cement
Corporation, a duly registered corporation maintaining and
Sometime in September 2003, petitioner received information from one of its employees,
Armando Moralda (Moralda), that some of its personnel, including respondent who was then the
manager of petitioner’s Power Plant Department, were receiving commissions or "kickbacks"
from suppliers.5 To ascertain the veracity of the information given by Moralda, the top
management of petitioner conducted an investigation during which Jerome Lobitaña (Lobitaña),
one of petitioner’s accredited suppliers, doing business under the name and style "Precision
Process," came forward to corroborate the statement of Moralda.6
On October 10, 2003, Moralda and Lobitaña executed separate affidavits7 to substantiate their
claims. Pertinent portions of the affidavits read:
Moralda’s Affidavit:
xxxx
3. As a Buyer/Canvasser at the Purchasing Department enjoying the trust and confidence of Mr.
Tinoco, I was privy to several anomalous practices and transactions involving the procurement of
various supplies and services for the Company. Among the various modus operandi employed by
some people in Apo are the following:
xxxx
e. 10% to 20% of the quoted price usually set aside as bribe money for certain personnel.
Suppliers would often factor-in an additional 10% to 20% in their quoted price which would be
used to bribe certain Apo personnel. A canvasser like me would get about 1% to 3% of the
quoted price from the winning supplier. Some suppliers would categorically inform me how
much has been promised to other Apo personnel who would help facilitate the award of the
contract in their favor. Among those who receive bribes from suppliers aside from Mr. Tinoco
are Mr. Jose Cruz, the Mechanical Maintenance Manager and Zaldy Baptisma, Apo Power Plant
Manager.
x x x x8
Lobitaña’s Affidavit:
xxxx
8.1. There were times when Mr. Tinoco himself talked directly to the end-user [to] negotiate for
the amount or percentage of the kickback that they would get from me. There was one time when
Mr. Tinoco informed me that he has negotiated with Mr. Zaldy Baptisma, the Power Plant
Manager, and committed to give him a ten percent (10%) "commission" or kickback for all
transactions which would be awarded to me. Upon the award of the contract amounting to
approximately Two Hundred Thousand Pesos (P200,000.00) and the remittance by Apo of the
payment, I met with Mr. Baptisma outside the Apo plant and personally handed to him his ten
percent (10%) "commission"/ kickback in cash.
x x x x9
Having been implicated in the irregularities, respondent, on November 3, 2003, received a Show
Cause Letter with Notice of Preventive Suspension10 from Plant Director Ariel Mendoza.11
On November 5, 2003, respondent submitted his written explanation12 denying the accusations
hurled against him.13
To further afford respondent ample opportunity to defend himself, petitioner conducted a series
of administrative investigation hearings during which respondent was able to face his
accusers.14 This time, Lobitaña gave a more detailed narration of the events that transpired in
August and September 2002. He said:
xxxx
(a) That [on] two (2) separate occasions, I personally handed over to Mr. Baptisma some
amounts representing the latter’s ten [percent] (10%) "commission" and/or "kickbacks."
The first instance took place sometime around the first or second week of August 2002,
where I met with Mr. Baptisma at the Papa’s Grill, a native restaurant located in V. Rama
Avenue, Cebu City. Mr. Baptisma’s two (2) subordinates, Mr. Reno Cedeño and Bobby
Banzon, were also present. After our dinner, I personally handed over to Mr. Baptisma
the amount of ₱37,701.81 (cash), which was 10% of the aggregate contract price of
₱377,018.19 for three (3) purchase orders I got from Apo, i.e. P.O. ON-00028642
(₱159,090.91), ON-000-28630 (₱168,181.82), and ON-00030162 (₱49,745.46). Mr.
Baptisma readily received the amount from me.
(b) That the second instance took place sometime in the second week of September 2002.
I again met with Mr. Baptisma and his two (2) subordinates, Mr. Reno Cedeño and
Bobby Banzon, at the same Papa’s Grill Restaurant. After our dinner, I personally handed
over to Mr. Baptisma the amount of ₱15,909.09, which was 10% of the total contract
price of ₱159,090.91 under P.O. No. ON-00030067 dated 8 June 2002 which I got from
Apo.
(c) That I submitted to the Investigating Committee copies of the Purchase Orders
corresponding to the transactions I had with Apo out of which Mr. Baptisma received
"commissions" and/or "kickbacks" from me, as follows:
xxxx
(d) That I maintain a notebook where I could enter the details of my dealings with Apo
personnel who have been receiving "commissions" and/or "kickback[s]" from me. During
the administrative investigation held on 9 December 2003, I showed to the Investigating
Committee the particular portion of my notebook where I recorded the total amount of
₱53,610.00 representing the "commission[s]" and/or "kickbacks" that I gave to the
"Power Plant Boys," in connection with the transactions I had with Apo covered by
aforementioned Purchase Orders. One of the "Power Plant Boys" I referred to in my
notebook was Mr. Baptisma.
x x x x15
For his part, respondent presented his co-employees Bobby Banzon (Banzon), Reno Cedeño
(Cedeño) and Christopher Navarro.16 Banzon testified that sometime in December 2002, he,
along with respondent and other Apo employees, went to Papa’s Grill; that on said occasion, he
saw Lobitaña with some companions at another table; and that Lobitaña did not approach them
but only gave food and bottles of beer through a waiter.17 Cedeño, on the other hand, denied
meeting Lobitaña at Papa’s Grill.18
On March 22, 2004, respondent received the Notice of Termination19 dated March 19, 2004
informing him of his dismissal from employment effective immediately on the ground of loss of
trust and confidence.20 At the time of his termination, respondent was a Power Plant Manager
earning a monthly salary of ₱71,100.00.21
On March 31, 2004, respondent filed with the Regional Arbitration Branch VII of the National
Labor Relations Commission (NLRC) in Cebu City a complaint for illegal dismissal with claims
for non-payments of salaries, 13th month pay, service incentive leave, damages, and attorney’s
fees, docketed as RAB Case No. VII-03-0701-04, against petitioner and its Vice-President for
Human Resources, Atty. Maria Virginia Ongkiko-Eala.22
On January 5, 2005, Labor Arbiter Jose G. Gutierrez rendered judgment in favor of respondent.
The Labor Arbiter opined that since respondent was not involved in the canvassing and
purchasing of supplies, he could not have entered into any irregular arrangement with
suppliers.23 The Labor Arbiter likewise considered the testimony of Moralda as hearsay and the
testimony of Lobitaña as self-serving and doubtful.24 Hence, he ruled that there was "no
justifiable ground to support the validity of [respondent’s] dismissal x x x."25 The decretal
portion of his Decision26 reads:
WHEREFORE, the foregoing premises considered, judgment is hereby rendered declaring the
[respondent] illegally dismissed from his employment. [Petitioner and Atty. Eala] are therefore,
directed to reinstate the complainant to his former position without loss of seniority rights and
other privileges. Further, [petitioner and Atty. Eala] are directed to jointly and severally pay
[respondent] the following:
₱755,834.60
plus ₱79,141.53 or ten (10%) percent attorney’s fees or a total aggregate amount of PESOS:
EIGHT HUNDRED THIRTY ONE THOUSAND FOUR HUNDRED EIGHTEEN & 06/100
(₱831,418.06). The amount awarded to [respondent] however should be recomputed when this
decision becomes final and executory.
SO ORDERED.27
Aggrieved, petitioner filed an appeal with the NLRC,28 docketed as NLRC Case No. V-000248-
2005.
Respondent, on the other hand, filed a Motion for Issuance of a Writ of Execution.29
On February 21, 2005, the Labor Arbiter ordered petitioner to reinstate respondent as Power
Plant Manager of its plant at Tinaan, Naga, Cebu,30 prompting petitioner to file an Urgent
Motion for Issuance of a Temporary Restraining Order and/or Writ of Preliminary Injunction
with the NLRC,31 docketed as NLRC INJ. Case No. 000001-2005.
On July 11, 2005, the NLRC reversed the ruling of the Labor Arbiter. It ruled that respondent’s
"personal and direct involvement in the irregularities complained of renders him unworthy of the
trust and confidence demanded [of] his position."32 The fallo of the Decision33 reads:
WHEREFORE, premises considered the decision of the Labor Arbiter is hereby SET ASIDE and
VACATED and a new one entered dismissing the complaint.
SO ORDERED.34
Respondent moved for reconsideration but his motion was denied by the NLRC in a
Resolution35 dated August 25, 2005. Thus, respondent elevated the matter to the CA.
On November 15, 2006, the CA reinstated the Decision of the Labor Arbiter. It ruled that
petitioner failed to prove the existence of a just cause to warrant the termination of respondent as
the alleged loss of trust and confidence was not based on established facts.36 It decreed:
IN LIGHT OF ALL THE FOREGOING, the petition filed in this case is hereby GRANTED.
The assailed decision dated July 11, 2005 promulgated by the National Labor Relations
Commission (Fourth Division) and its subsequent resolution dated August 25, 2005 in NLRC
Case No. V-000248-2005 and NLRC INJ. Case No. V-000001-2005 are hereby SET ASIDE.
The decision dated January 5, 2005 of Labor Arbiter Jose G. Gutierrez is hereby REINSTATED.
IT IS SO ORDERED.37
On reconsideration, the CA stood pat on its finding that there was no basis for petitioner’s loss of
trust and confidence in respondent.38 It, however, modified
Issues
I.
II.
III.
IV.
THE [CA] X X X DECIDED THE INSTANT CASE IN A WAY NOT IN ACCORD
WITH LAW AND SETTLED DECISIONS OF THE HONORABLE SUPREME
COURT, WHEN IT REINSTATED THE DECISION OF THE LABOR ARBITER
DATED 5 JANUARY 2005 FINDING PETITIONER GUILTY OF ILLEGAL
DISMISSAL AND HOLDING IT LIABLE TO PAY RESPONDENT BACKWAGES,
UNPAID SALARIES, PROPORTIONATE 13th MONTH PAY AND ATTORNEY’S
FEES, DESPITE THE FACT THAT:
(B) RESPONDENT HAS BEEN PAID HIS SALARY FOR THE PERIOD
MARCH 1-15, 2004, AND THEREFORE, THE AWARD OF UNPAID
SALARY HAS NO LEGAL BASIS;
Simply put, the crux of the controversy is whether there was just cause for the dismissal of
respondent.
Petitioner’s Arguments
At the outset, petitioner asserts that this petition is an exception to the rule that only questions of
law may be raised in a petition under Rule 45 of the Rules of Court.41 It submits that a factual
review of the instant case is necessary because the factual findings of the NLRC and the CA are
contradictory.42
Petitioner also imputes error on the CA for holding that the "loss of confidence was not grounded
on established facts."43 It points out that although respondent was not tasked to canvass, award,
and approve the purchase orders for company supplies and equipment, he, nevertheless, had
some authority to reject the delivery and demand replacement.44 Petitioner likewise denies any
inconsistencies in the affidavits of Lobitaña,45 and claims that in the absence of any ill-motive
on the part of Lobitaña to falsely accuse respondent of the offense, Lobitaña’s testimony should
prevail over the bare denials of respondent and his witnesses.46
Respondent’s Arguments
Respondent prays for the dismissal of the petition on the ground that factual issues are not
allowed in a petition filed under Rule 45 of the Rules of Court.47 In any case, he insists that he
was terminated without cause as the affidavits of Lobitaña do not merit any weight and
consideration.48 He maintains that the affidavits of Lobitaña are full of fabrications and
inconsistencies.49 Thus, he implores that the ruling of the Labor Arbiter, as affirmed by the CA,
be upheld.50
Our Ruling
The rule that only questions of law may be raised in a petition brought under Rule 45 of the
Rules of Court is not without exception. Factual review may warrant when the factual findings of
the NLRC are contrary to those of the Labor Arbiter and the CA;51 or when the CA’s findings of
fact, supposedly premised on the absence of evidence, are contradicted by evidence on record.52
In this case, the Labor Arbiter and the CA found no just cause to warrant the dismissal of
respondent. The NLRC, however, found otherwise. A factual review is, therefore, in order.
To validly dismiss an employee on the ground of loss of trust and confidence under Article 282
(c)53 of the Labor Code of the Philippines, the following guidelines must be observed: "1) loss
of confidence should not be simulated; 2) it should not be used as subterfuge for causes which
are improper, illegal or unjustified; 3) it may not be arbitrarily asserted in the face of
overwhelming evidence to the contrary; and 4) it must be genuine, not a mere afterthought to
justify earlier action taken in bad faith."54 More important, it "must be based on a willful breach
of trust and founded on clearly established facts."55
In this case, we agree with the NLRC that the termination of respondent on the ground of loss of
trust and confidence was justified. Unlike the Labor Arbiter and the CA, we find the testimony of
Lobitaña credible and truthful.
To begin with, we find no inconsistencies between the first and the second affidavits of Lobitaña.
If at all, the only difference between the two is that the second affidavit is more detailed than the
first one. This, however, is understandable considering that the first affidavit was executed by
Lobitaña during petitioner’s initial investigation, when it was still verifying the information it
received from Moralda, while the second affidavit, which contains Lobitaña’s testimony during
respondent’s administrative hearing, was executed long after the investigation was conducted.
Also, there appears to be no ill-motive on the part of Lobitaña to falsely accuse respondent of
accepting commissions and/or "kickbacks." In fact, it was not Lobitaña but Moralda who
reported the irregularities to petitioner. Lobitaña came forward only during petitioner’s initial
investigation to confirm the testimony of Moralda that some personnel were indeed receiving
commissions and/or "kickbacks."
Moreover, as between the positive testimony of Lobitaña that he gave respondent commissions
and/or "kickbacks" on two separate occasions, and the negative testimony of respondent’s
witnesses Cedeño and Banzon that no such meeting took place, we are more inclined to give
credence to the former. It bears stressing that a positive testimony prevails over a negative
one,56 more especially in this case where respondent’s witnesses did not even execute affidavits
to attest to the truthfulness of their statements. Thus, it was error on the part of the Labor Arbiter
and the CA to disregard the testimony of Lobitaña.
Likewise erroneous is the reasoning of the Labor Arbiter and the CA that since respondent was
not involved in the procurement process, he could not be guilty of violating Section 2.0457 of
petitioner’s Company Rules and Regulations, which prohibits employees from:
This is a non sequitur. As aptly pointed out by the NLRC, although he was not directly involved
in the procurement process, respondent, as the then Power Plant Manager, had some power or
authority "vital and indispensable to the procurement process."58 Quoted below is the NLRC’s
ratiocination, which we approve and adopt:
After going through the records, we are afraid the Labor Arbiter completely missed the
point.1âwphi1 While canvassing, awarding, and approving of purchase orders for company
supplies, materials and equipment may not strictly be the official functions of the [respondent],
these being the concerns of the Procurement Department, nevertheless as the then Power Plant
Manager, [respondent] actually wielded some authority which is vital and indispensable to the
"procurement process." As is usual in any industrial firm, the procurement of company supplies,
materials, and equipment is being handled by its procurement department, then headed by Mr.
Romeo Tinoco, Jr. The procurement department is tasked with the duty to "canvass" and place
"purchase orders" for supplies, materials, and equipment sought to be procured by the other
departments, from which the purchase request originated. The requesting department which
generated the Purchase Request is called the "end-user" or "requestor."
Being more familiar with the particulars of the supplies, materials and equipment that their
respective department[s] need, especially the technical aspect of it, the "end-users" are tasked
with the duty to provide the specifications of the supplies, materials, equipment sought to be
procured for their respective department[s]. Since the "end-users" are the ones [who] provide for
specifications, they are necessarily empowered to determine whether the materials or equipment
delivered by the supplier have complied with the given specifications. If the item delivered fails
to meet the given specifications, the end-user has the discretion to reject the delivery and demand
for replacement.
One of the end-users that often generates purchase requests is the Power Plant, of which
[respondent] was then the manager.1âwphi1 Being then the manager of the Power Plant, it was
[respondent’s] duty to approve purchase requisition[s] and prepare or caused to be prepared the
desired specifications of the item sought to be procured for the Power Plant, especially on the
technical side of the items. Upon the delivery, [respondent] has the authority to determine if the
items or equipment delivered are in accordance with the specifications given.
In performing this function, [respondent] would exercise some discretion either to accept the
items delivered if he finds them to have complied with the desired specifications or reject the
same if to his judgment the items delivered failed to meet the desired specifications. In fact,
[respondent] himself categorically admitted during the administrative investigation that in the
event the item is rejected, the end-user has the right to demand for replacement:
xxxx
Thus, to the mind of any supplier, the role of the end-user, like the Power Plant then headed by
[respondent], in the entire procurement process is as important and indispensable as that of the
procurement personnel. Since the final acceptance of the items and/or equipment
delivered/supplied by a supplier lies with the "end-user," the "end-user" equally wields the power
to "make or break" a supplier, and therefore, the suppliers have all the reasons in the world to
"bribe" the "end-users" if only to smoothen the acceptance of the items supplied/ delivered.
Consequently, just because [respondent’s] signature cannot be found in Annexes "10," "10-A,"
"10-B," "12," "12-A," "13" and "13-A", it does not necessarily mean that "he has absolutely
nothing to do" with the entire procurement process. As said, while [respondent] may not have
been empowered, "to canvass and award purchase orders to suppliers," he was empowered, as an
end-user, to determine whether to accept or reject any item delivered by any supplier, which
authority is part and parcel of the entire procurement mechanism put in place by the company.
It is obviously because of this inherent power to accept or reject any item delivered that Mr.
Lobitaña had to give 10% kickbacks to the [respondent]. x x x59
All told, we find that the testimony of Lobitaña constitutes substantial evidence to prove that
respondent, as the then Power Plant Manager, accepted commissions and/or "kickbacks" from
suppliers, which is a clear violation of Section 2.04 of petitioner’s Company Rules and
Regulations. Jurisprudence consistently holds that for managerial employees "the mere existence
of a basis for believing that such employee has breached the trust of his employer would suffice
for his dismissal." 60 As we then see it, respondent’s termination was for a just and valid cause.
WHEREFORE, the petition is hereby GRANTED. The assailed Decision dated November 15,
2006 and the Resolution dated February 6, 2007 of the Court of Appeals in CA-G.R. CEB-SP
No. 01220 are hereby REVERSED and SET ASIDE. The Decision of the National Labor
Relations Commission dated July 11, 2005 and its Resolution dated August 25, 2005 are hereby
REINSTATED and AFFIRMED.
SO ORDERED.
ESTELA M. PERLAS-BERNABE**
Associate Justice
ATTESTATION
I attest 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.
CERTIFICATION
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.
ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296, The Judiciary Act of 1948, as amended)
Footnotes
3 Id. at 68-74.
6 Id.
8 Id. at 85-86.
9 Id. at 89.
10 Id. at 92-93.
11 Id. at 60.
12 Id. at 94.
13 Id. at 60.
14 Id. at 15.
15 Id. at 97-98.
16 Id. at 189.
17 Id. at 190.
18 Id.
19 Id. at 109.
20 Id. at 192.
21 Id. at 60.
23 Id. at 195.
24 Id. at 195-196.
25 Id. at 196.
26 Id. at 189-198.
27 Id. at 197-198.
28 Id. at 61.
29 Id.
30 Id. at 61-62.
31 Id. at 62.
32 Id. at 276.
34 Id. at 281.
35 Id. at 282.
36 Id. at 65-66.
37 Id. at 66.
38 Id. at 72.
39 Id. at 73-74.
40 Id. at 22-24.
41 Id. at 465.
42 Id. at 465-470.
43 Id. at 470.
44 Id. at 477-481.
45 Id. at 485-490.
46 Id. at 490-493.
47 Id. at 431-432.
48 Id. at 432-437.
49 Id.
50 Id. at 432-433.
51 Hanjin Heavy Industries and Construction Co., Ltd. v. Ibañez, G.R. No. 170181, June
26, 2008, 555 SCRA 537, 549.
52 Sevilla v. Court of Appeals, G.R. No. 150284, November 22, 2010, 635 SCRA 508,
515.
xxxx
(c) Fraud or willful breach by the employee of the trust reposed in him by his
employer or duly authorized representative;
xxxx
54 Rubia v. National Labor Relations Commission, Fourth Division, G.R. No. 178621,
July 26, 2010, 625 SCRA 494, 506.
55 Sunrise Holiday Concepts, Inc. v. Arugay, G.R. No. 189457, April 13, 2011, 648
SCRA 785, 792.
56 Arboleda v. National Labor Relations Commission, 362 Phil. 383, 390 (1999).
57 Rollo, p. 77.
58 Id. at 271.
59 Id. at 271-275.