EN BANC G.R. No. 192571, July 23, 2013 ABBOTT LABORATORIES, PHILIPPINES, CECILLE A.

TERRIBLE, EDWIN D. FEIST, MARIA OLIVIA T. YABUT-MISA, TERESITA C. BERNARDO, AND

ALLAN G. ALMAZAR, PETITIONERS, VS. PEARLIE ANN F. ALCARAZ, RESPONDENT.

DECISION

PERLAS-BERNABE, J.:

Assailed in this petition for review on certiorari[1] are the Decision[2] dated December 10, 2009 and
Resolution[3] dated June 9, 2010 of the Court of Appeals (CA) in CA-G.R. SP No. 101045 which
pronounced that the National Labor Relations Commission (NLRC) did not gravely abuse its
discretion when it ruled that respondent Pearlie Ann F. Alcaraz (Alcaraz) was illegally dismissed from
her employment.

The Facts
On June 27, 2004, petitioner Abbott Laboratories, Philippines (Abbott) caused the publication in a
major broadsheet newspaper of its need for a Medical and Regulatory Affairs Manager (Regulatory
Affairs Manager) who would: (a) be responsible for drug safety surveillance operations, staffing, and
budget; (b) lead the development and implementation of standard operating procedures/policies for
drug safety surveillance and vigilance; and (c) act as the primary interface with internal and external
customers regarding safety operations and queries.[4] Alcaraz who was then a Regulatory Affairs and
Information Manager at Aventis Pasteur Philippines, Incorporated (another pharmaceutical company
like Abbott) showed interest and submitted her application on October 4, 2004.[5]

On December 7, 2004, Abbott formally offered Alcaraz the above-mentioned position which was an
item under the companys Hospira Affiliate Local Surveillance Unit (ALSU) department.[6] In Abbotts
offer sheet,[7] it was stated that Alcaraz was to be employed on a probationary basis.[8] Later that day,
she accepted the said offer and received an electronic mail (e-mail) from Abbotts Recruitment Officer,
petitioner Teresita C. Bernardo (Bernardo), confirming the same. Attached to Bernardos e-mail were
Abbotts organizational chart and a job description of Alcarazs work.[9]

On February 12, 2005, Alcaraz signed an employment contract which stated, inter alia, that she was
to be placed on probation for a period of six (6) months beginning February 15, 2005 to August 14,
2005. The said contract was also signed by Abbotts General Manager, petitioner Edwin Feist
(Feist):[10]

PROBATIONARY EMPLOYMENT
Dear Pearl,

After having successfully passed the pre-employment requirements, you are hereby appointed as
follows:

Position Title : Regulatory Affairs Manager

Department : Hospira

The terms of your employment are:

Nature of Employment : Probationary

Effectivity : February 15, 2005 to August 14, 2005
Basic Salary : P110,000.00/ month

It is understood that you agree to abide by all existing policies, rules and regulations of the company,
as well as those, which may be hereinafter promulgated.

Unless renewed, probationary appointment expires on the date indicated subject to earlier
termination by the Company for any justifiable reason.

If you agree to the terms and conditions of your employment, please signify your conformity below
and return a copy to HRD.

Welcome to Abbott!

Very truly yours,

Sgd.
EDWIN D. FEIST
General Manager

CONFORME:

Sgd.
PEARLIE ANN FERRER-ALCARAZ

During Alcarazs pre-employment orientation, petitioner Allan G. Almazar (Almazar), Hospiras Country
Transition Manager, briefed her on her duties and responsibilities as Regulatory Affairs Manager,
stating that: (a) she will handle the staff of Hospira ALSU and will directly report to Almazar on
matters regarding Hopiras local operations, operational budget, and performance evaluation of the
Hospira ALSU Staff who are on probationary status; (b) she must implement Abbotts Code of Good
Corporate Conduct (Code of Conduct), office policies on human resources and finance, and ensure
that Abbott will hire people who are fit in the organizational discipline; (c) petitioner Kelly Walsh
(Walsh), Manager of the Literature Drug Surveillance Drug Safety of Hospira, will be her immediate
supervisor; (d) she should always coordinate with Abbotts human resource officers in the
management and discipline of the staff; (e) Hospira ALSU will spin off from Abbott in early 2006 and
will be officially incorporated and known as Hospira, Philippines. In the interim, Hospira ALSU
operations will still be under Abbotts management, excluding the technical aspects of the operations
which is under the control and supervision of Walsh; and (f) the processing of information and/or raw
material data subject of Hospira ALSU operations will be strictly confined and controlled under the
computer system and network being maintained and operated from the United States. For this
purpose, all those involved in Hospira ALSU are required to use two identification cards: one, to
identify them as Abbotts employees and another, to identify them as Hospira employees.[11]

On March 3, 2005, petitioner Maria Olivia T. Yabut-Misa (Misa), Abbotts Human Resources (HR)
Director, sent Alcaraz an e-mail which contained an explanation of the procedure for evaluating the
performance of probationary employees and further indicated that Abbott had only one evaluation
system for all of its employees. Alcaraz was also given copies of Abbotts Code of Conduct and
Probationary Performance Standards and Evaluation (PPSE) and Performance Excellence
Orientation Modules (Performance Modules) which she had to apply in line with her task of evaluating
the Hospira ALSU staff.[12]

Abbotts PPSE procedure mandates that the job performance of a probationary employee should be
formally reviewed and discussed with the employee at least twice: first on the third month and second
on the fifth month from the date of employment. The necessary Performance Improvement Plan
should also be made during the third-month review in case of a gap between the employees
performance and the standards set. These performance standards should be discussed in detail with
the employee within the first two (2) weeks on the job. It was equally required that a signed copy of
the PPSE form must be submitted to Abbotts Human Resources Department (HRD) and shall serve
as documentation of the employees performance during his/her probationary period. This shall form
the basis for recommending the confirmation or termination of the probationary employment.[13]

During the course of her employment, Alcaraz noticed that some of the staff had disciplinary
problems. Thus, she would reprimand them for their unprofessional behavior such as non-
observance of the dress code, moonlighting, and disrespect of Abbott officers. However, Alcarazs
method of management was considered by Walsh to be too strict.[14] Alcaraz approached Misa to
discuss these concerns and was told to lie low and let Walsh handle the matter. Misa even assured
her that Abbotts HRD would support her in all her management decisions.[15]

On April 12, 2005, Alcaraz received an e-mail from Misa requesting immediate action on the staffs
performance evaluation as their probationary periods were about to end. This Alcaraz eventually
submitted.[16]

On April 20, 2005, Alcaraz had a meeting with petitioner Cecille Terrible (Terrible), Abbotts former HR
Director, to discuss certain issues regarding staff performance standards. In the course thereof,
Alcaraz accidentally saw a printed copy of an e-mail sent by Walsh to some staff members which
essentially contained queries regarding the formers job performance. Alcaraz asked if Walshs action
was the normal process of evaluation. Terrible said that it was not.[17]

On May 16, 2005, Alcaraz was called to a meeting with Walsh and Terrible where she was informed
that she failed to meet the regularization standards for the position of Regulatory Affairs Manager.[18]
Thereafter, Walsh and Terrible requested Alcaraz to tender her resignation, else they be forced to
terminate her services. She was also told that, regardless of her choice, she should no longer report
for work and was asked to surrender her office identification cards. She requested to be given one
week to decide on the same, but to no avail.[19]

On May 17, 2005, Alcaraz told her administrative assistant, Claude Gonzales (Gonzales), that she
would be on leave for that day. However, Gonzales told her that Walsh and Terrible already
announced to the whole Hospira ALSU staff that Alcaraz already resigned due to health reasons.[20]

On May 23, 2005, Walsh, Almazar, and Bernardo personally handed to Alcaraz a letter stating that
her services had been terminated effective May 19, 2005.[21] The letter detailed the reasons for
Alcarazs termination particularly, that Alcaraz: (a) did not manage her time effectively; (b) failed to
gain the trust of her staff and to build an effective rapport with them; (c) failed to train her staff
effectively; and (d) was not able to obtain the knowledge and ability to make sound judgments on
case processing and article review which were necessary for the proper performance of her duties.[22]
On May 27, 2005, Alcaraz received another copy of the said termination letter via registered mail.[23]

Alcaraz felt that she was unjustly terminated from her employment and thus, filed a complaint for
illegal dismissal and damages against Abbott and its officers, namely, Misa, Bernardo, Almazar,
Walsh, Terrible, and Feist.[24] She claimed that she should have already been considered as a regular
and not a probationary employee given Abbotts failure to inform her of the reasonable standards for
her regularization upon her engagement as required under Article 295[25] of the Labor Code. In this
relation, she contended that while her employment contract stated that she was to be engaged on a
probationary status, the same did not indicate the standards on which her regularization would be
based.[26] She further averred that the individual petitioners maliciously connived to illegally dismiss
her when: (a) they threatened her with termination; (b) she was ordered not to enter company
premises even if she was still an employee thereof; and (c) they publicly announced that she already
resigned in order to humiliate her.[27]

On the contrary, petitioners maintained that Alcaraz was validly terminated from her probationary
employment given her failure to satisfy the prescribed standards for her regularization which were
made known to her at the time of her engagement.[28]

The LA Ruling
In a Decision dated March 30, 2006,[29] the LA dismissed Alcarazs complaint for lack of merit.

The LA rejected Alcarazs argument that she was not informed of the reasonable standards to qualify
as a regular employee considering her admissions that she was briefed by Almazar on her work
during her pre-employment orientation meeting[30] and that she received copies of Abbotts Code of
Conduct and Performance Modules which were used for evaluating all types of Abbott employees.[31]
As Alcaraz was unable to meet the standards set by Abbott as per her performance evaluation, the
LA ruled that the termination of her probationary employment was justified.[32] Lastly, the LA found
that there was no evidence to conclude that Abbotts officers and employees acted in bad faith in
terminating Alcarazs employment.[33]

Displeased with the LAs ruling, Alcaraz filed an appeal with the National Labor Relations Commission
(NLRC).

The NLRC Ruling

On September 15, 2006, the NLRC rendered a Decision,[34] annulling and setting aside the LAs
ruling, the dispositive portion of which reads:

WHEREFORE, the Decision of the Labor Arbiter dated 31 March 2006 [sic] is hereby reversed,
annulled and set aside and judgment is hereby rendered:

1. Finding respondents Abbot [sic] and individual respondents to have committed illegal dismissal;

2. Respondents are ordered to immediately reinstate complainant to her former position without loss
of seniority rights immediately upon receipt hereof;

3. To jointly and severally pay complainant backwages computed from 16 May 2005 until finality of
this decision. As of the date hereof the backwages is computed at

a. Backwages for 15 months

PhP 1,650,000.00
b. 13th month pay

110,000.00

TOTAL

PhP 1,760,000.00

4. Respondents are ordered to pay complainant moral damages of P50,000.00 and exemplary
damages of P50,000.00.

5. Respondents are also ordered to pay attorneys fees of 10% of the total award.

6. All other claims are dismissed for lack of merit.

SO ORDERED. [35]
The NLRC reversed the findings of the LA and ruled that there was no evidence showing that Alcaraz
had been apprised of her probationary status and the requirements which she should have complied
with in order to be a regular employee.[36] It held that Alcarazs receipt of her job description and
Abbotts Code of Conduct and Performance Modules was not equivalent to her being actually
informed of the performance standards upon which she should have been evaluated on.[37] It further
observed that Abbott did not comply with its own standard operating procedure in evaluating
probationary employees.[38] The NLRC was also not convinced that Alcaraz was terminated for a
valid cause given that petitioners allegation of Alcarazs poor performance remained
unsubstantiated.[39]

Petitioners filed a motion for reconsideration which was denied by the NLRC in a Resolution dated
July 31, 2007.[40]

Aggrieved, petitioners filed with the CA a Petition for Certiorari with Prayer for Issuance of a
Temporary Restraining Order and/or Writ of Preliminary Injunction, docketed as CA G.R. SP No.
101045 (First CA Petition), alleging grave abuse of discretion on the part of NLRC when it ruled that
Alcaraz was illegally dismissed.[41]

Pending resolution of the First CA Petition, Alcaraz moved for the execution of the NLRCs Decision
before the LA, which petitioners strongly opposed. The LA denied the said motion in an Order dated
July 8, 2008 which was, however, eventually reversed on appeal by the NLRC.[42] Due to the
foregoing, petitioners filed another Petition for Certiorari with the CA, docketed as CA G.R. SP No.
111318 (Second CA Petition), assailing the propriety of the execution of the NLRC decision.[43]

The CA Ruling
With regard to the First CA Petition, the CA, in a Decision[44] dated December 10, 2009, affirmed the
ruling of the NLRC and held that the latter did not commit any grave abuse of discretion in finding that
Alcaraz was illegally dismissed.

It observed that Alcaraz was not apprised at the start of her employment of the reasonable standards
under which she could qualify as a regular employee.[45] This was based on its examination of the
employment contract which showed that the same did not contain any standard of performance or
any stipulation that Alcaraz shall undergo a performance evaluation before she could qualify as a
regular employee.[46] It also found that Abbott was unable to prove that there was any reasonable
ground to terminate Alcarazs employment.[47] Abbott moved for the reconsideration of the
aforementioned ruling which was, however, denied by the CA in a Resolution[48] dated June 9, 2010.

The CA likewise denied the Second CA Petition in a Resolution dated May 18, 2010 (May 18, 2010
Resolution) and ruled that the NLRC was correct in upholding the execution of the NLRC Decision.[49]
Thus, petitioners filed a motion for reconsideration.

While the petitioners motion for reconsideration of the CAs May 18, 2010 Resolution was pending,
Alcaraz again moved for the issuance of a writ of execution before the LA. On June 7, 2010,
petitioners received the LAs order granting Alcarazs motion for execution which they in turn appealed
to the NLRC through a Memorandum of Appeal dated June 16, 2010 (June 16, 2010 Memorandum of
Appeal ) on the ground that the implementation of the LAs order would render its motion for
reconsideration moot and academic.[50]

Meanwhile, petitioners motion for reconsideration of the CAs May 18, 2010 Resolution in the Second
CA Petition was denied via a Resolution dated October 4, 2010.[51] This attained finality on January
10, 2011 for petitioners failure to timely appeal the same.[52] Hence, as it stands, only the issues in
the First CA petition are left to be resolved.

Incidentally, in her Comment dated November 15, 2010, Alcaraz also alleges that petitioners were
guilty of forum shopping when they filed the Second CA Petition pending the resolution of their
motion for reconsideration of the CAs December 10, 2009 Decision i.e., the decision in the First CA
Petition.[53] She also contends that petitioners have not complied with the certification requirement
under Section 5, Rule 7 of the Rules of Court when they failed to disclose in the instant petition the
filing of the June 16, 2010 Memorandum of Appeal filed before the NLRC.[54]

The Issues Before the Court

The following issues have been raised for the Courts resolution: (a) whether or not petitioners are
guilty of forum shopping and have violated the certification requirement under Section 5, Rule 7 of the
Rules of Court; (b) whether or not Alcaraz was sufficiently informed of the reasonable standards to
qualify her as a regular employee; (c) whether or not Alcaraz was validly terminated from her
employment; and (d) whether or not the individual petitioners herein are liable.

The Courts Ruling

A. Forum Shopping and Violation of Section 5,
Rule 7 of the Rules of Court.

At the outset, it is noteworthy to mention that the prohibition against forum shopping is different from
a violation of the certification requirement under Section 5, Rule 7 of the Rules of Court. In Sps. Ong
v. CA,[55] the Court explained that:

x x x The distinction between the prohibition against forum shopping and the certification requirement
should by now be too elementary to be misunderstood. To reiterate, compliance with the certification
against forum shopping is separate from and independent of the avoidance of the act of forum
shopping itself. There is a difference in the treatment between failure to comply with the certification
requirement and violation of the prohibition against forum shopping not only in terms of imposable
sanctions but also in the manner of enforcing them. The former constitutes sufficient cause for the
dismissal without prejudice [to the filing] of the complaint or initiatory pleading upon motion and after
hearing, while the latter is a ground for summary dismissal thereof and for direct contempt. x x x. [56]
As to the first, forum shopping takes place when a litigant files multiple suits involving the same
parties, either simultaneously or successively, to secure a favorable judgment. It exists where the
elements of litis pendentia are present, namely: (a) identity of parties, or at least such parties who
represent the same interests in both actions; (b) identity of rights asserted and relief prayed for, the
relief being founded on the same facts; and (c) the identity with respect to the two preceding
particulars in the two (2) cases is such that any judgment that may be rendered in the pending case,
regardless of which party is successful, would amount to res judicata in the other case.[57]

In this case, records show that, except for the element of identity of parties, the elements of forum
shopping do not exist. Evidently, the First CA Petition was instituted to question the ruling of the
NLRC that Alcaraz was illegally dismissed. On the other hand, the Second CA Petition pertains to the
propriety of the enforcement of the judgment award pending the resolution of the First CA Petition
and the finality of the decision in the labor dispute between Alcaraz and the petitioners. Based on the
foregoing, a judgment in the Second CA Petition will not constitute res judicata insofar as the First CA
Petition is concerned. Thus, considering that the two petitions clearly cover different subject matters
and causes of action, there exists no forum shopping.

As to the second, Alcaraz further imputes that the petitioners violated the certification requirement
under Section 5, Rule 7 of the Rules of Court[58] by not disclosing the fact that it filed the June 16,
2010 Memorandum of Appeal before the NLRC in the instant petition.

In this regard, Section 5(b), Rule 7 of the Rules of Court requires that a plaintiff who files a case
should provide a complete statement of the present status of any pending case if the latter involves
the same issues as the one that was filed. If there is no such similar pending case, Section 5(a) of the
same rule provides that the plaintiff is obliged to declare under oath that to the best of his knowledge,
no such other action or claim is pending.

Records show that the issues raised in the instant petition and those in the June 16, 2010
Memorandum of Appeal filed with the NLRC likewise cover different subject matters and causes of
action. In this case, the validity of Alcarazs dismissal is at issue whereas in the said Memorandum of
Appeal, the propriety of the issuance of a writ of execution was in question. Thus, given the dissimilar
issues, petitioners did not have to disclose in the present petition the filing of their June 16, 2010
Memorandum of Appeal with the NLRC. In any event, considering that the issue on the propriety of
the issuance of a writ of execution had been resolved in the Second CA Petition which in fact had
already attained finality the matter of disclosing the June 16, 2010 Memorandum of Appeal is now
moot and academic.

Having settled the foregoing procedural matter, the Court now proceeds to resolve the substantive
issues.

B. Probationary employment;
grounds for termination.

A probationary employee, like a regular employee, enjoys security of tenure. However, in cases of
probationary employment, aside from just or authorized causes of termination, an additional ground is
provided under Article 295 of the Labor Code, i.e., the probationary employee may also be
terminated for failure to qualify as a regular employee in accordance with the reasonable standards
made known by the employer to the employee at the time of the engagement.[59] Thus, the services
of an employee who has been engaged on probationary basis may be terminated for any of the
following: (a) a just or (b) an authorized cause; and (c) when he fails to qualify as a regular employee
in accordance with reasonable standards prescribed by the employer.[60]

Corollary thereto, Section 6(d), Rule I, Book VI of the Implementing Rules of the Labor Code provides
that if the employer fails to inform the probationary employee of the reasonable standards upon which
the regularization would be based on at the time of the engagement, then the said employee shall be
deemed a regular employee, viz.:

(d) In all cases of probationary employment, the employer shall make known to the employee the
standards under which he will qualify as a regular employee at the time of his engagement. Where no
standards are made known to the employee at that time, he shall be deemed a regular employee.
In other words, the employer is made to comply with two (2) requirements when dealing with a
probationary employee: first, the employer must communicate the regularization standards to the
probationary employee; and second, the employer must make such communication at the time of the
probationary employees engagement. If the employer fails to comply with either, the employee is
deemed as a regular and not a probationary employee.

Keeping with these rules, an employer is deemed to have made known the standards that would
qualify a probationary employee to be a regular employee when it has exerted reasonable efforts to
apprise the employee of what he is expected to do or accomplish during the trial period of probation.
This goes without saying that the employee is sufficiently made aware of his probationary status as
well as the length of time of the probation.

The exception to the foregoing is when the job is self-descriptive in nature, for instance, in the case of
maids, cooks, drivers, or messengers.[61] Also, in Aberdeen Court, Inc. v. Agustin,[62] it has been held
that the rule on notifying a probationary employee of the standards of regularization should not be
used to exculpate an employee who acts in a manner contrary to basic knowledge and common
sense in regard to which there is no need to spell out a policy or standard to be met. In the same
light, an employees failure to perform the duties and responsibilities which have been clearly made
known to him constitutes a justifiable basis for a probationary employees non-regularization.

In this case, petitioners contend that Alcaraz was terminated because she failed to qualify as a
regular employee according to Abbotts standards which were made known to her at the time of her
engagement. Contrarily, Alcaraz claims that Abbott never apprised her of these standards and thus,
maintains that she is a regular and not a mere probationary employee.

The Court finds petitioners assertions to be well-taken.

A punctilious examination of the records reveals that Abbott had indeed complied with the above-
stated requirements. This conclusion is largely impelled by the fact that Abbott clearly conveyed to
Alcaraz her duties and responsibilities as Regulatory Affairs Manager prior to, during the time of her
engagement, and the incipient stages of her employment. On this score, the Court finds it apt to
detail not only the incidents which point out to the efforts made by Abbott but also those
circumstances which would show that Alcaraz was well-apprised of her employers expectations that
would, in turn, determine her regularization:

(a) On June 27, 2004, Abbott caused the publication in a major broadsheet newspaper of its need for
a Regulatory Affairs Manager, indicating therein the job description for as well as the duties and
responsibilities attendant to the aforesaid position; this prompted Alcaraz to submit her application to
Abbott on October 4, 2004;
(b) In Abbotts December 7, 2004 offer sheet, it was stated that Alcaraz was to be employed on a
probationary status;

(c) On February 12, 2005, Alcaraz signed an employment contract which specifically stated, inter alia,
that she was to be placed on probation for a period of six (6) months beginning February 15, 2005 to
August 14, 2005;

(d) On the day Alcaraz accepted Abbotts employment offer, Bernardo sent her copies of Abbotts
organizational structure and her job description through e-mail;

(e) Alcaraz was made to undergo a pre-employment orientation where Almazar informed her that she
had to implement Abbotts Code of Conduct and office policies on human resources and finance and
that she would be reporting directly to Walsh;

(f) Alcaraz was also required to undergo a training program as part of her orientation;

(g) Alcaraz received copies of Abbotts Code of Conduct and Performance Modules from Misa who
explained to her the procedure for evaluating the performance of probationary employees; she was
further notified that Abbott had only one evaluation system for all of its employees; and

(h) Moreover, Alcaraz had previously worked for another pharmaceutical company and had admitted
to have an extensive training and background to acquire the necessary skills for her job.[63]

Considering the totality of the above-stated circumstances, it cannot, therefore, be doubted that
Alcaraz was well-aware that her regularization would depend on her ability and capacity to fulfill the
requirements of her position as Regulatory Affairs Manager and that her failure to perform such
would give Abbott a valid cause to terminate her probationary employment.

Verily, basic knowledge and common sense dictate that the adequate performance of ones duties is,
by and of itself, an inherent and implied standard for a probationary employee to be regularized; such
is a regularization standard which need not be literally spelled out or mapped into technical indicators
in every case. In this regard, it must be observed that the assessment of adequate duty performance
is in the nature of a management prerogative which when reasonably exercised as Abbott did in this
case should be respected. This is especially true of a managerial employee like Alcaraz who was
tasked with the vital responsibility of handling the personnel and important matters of her department.

In fine, the Court rules that Alcarazs status as a probationary employee and her consequent
dismissal must stand. Consequently, in holding that Alcaraz was illegally dismissed due to her status
as a regular and not a probationary employee, the Court finds that the NLRC committed a grave
abuse of discretion.

To elucidate, records show that the NLRC based its decision on the premise that Alcarazs receipt of
her job description and Abbotts Code of Conduct and Performance Modules was not equivalent to
being actually informed of the performance standards upon which she should have been evaluated
on.[64] It, however, overlooked the legal implication of the other attendant circumstances as detailed
herein which should have warranted a contrary finding that Alcaraz was indeed a probationary and
not a regular employee more particularly the fact that she was well-aware of her duties and
responsibilities and that her failure to adequately perform the same would lead to her non-
regularization and eventually, her termination.
Accordingly, by affirming the NLRCs pronouncement which is tainted with grave abuse of discretion,
the CA committed a reversible error which, perforce, necessitates the reversal of its decision.

C. Probationary employment; termination procedure.

A different procedure is applied when terminating a probationary employee; the usual two-notice rule
does not govern.[65] Section 2, Rule I, Book VI of the Implementing Rules of the Labor Code states
that [i]f the termination is brought about by the x x x failure of an employee to meet the standards of
the employer in case of probationary employment, it shall be sufficient that a written notice is served
the employee, within a reasonable time from the effective date of termination.

As the records show, Alcaraz's dismissal was effected through a letter dated May 19, 2005 which she
received on May 23, 2005 and again on May 27, 2005. Stated therein were the reasons for her
termination, i.e., that after proper evaluation, Abbott determined that she failed to meet the
reasonable standards for her regularization considering her lack of time and people management and
decision-making skills, which are necessary in the performance of her functions as Regulatory Affairs
Manager.[66] Undeniably, this written notice sufficiently meets the criteria set forth above, thereby
legitimizing the cause and manner of Alcarazs dismissal as a probationary employee under the
parameters set by the Labor Code.[67]

D. Employers violation of company

policy and procedure.

Nonetheless, despite the existence of a sufficient ground to terminate Alcarazs employment and
Abbotts compliance with the Labor Code termination procedure, it is readily apparent that Abbott
breached its contractual obligation to Alcaraz when it failed to abide by its own procedure in
evaluating the performance of a probationary employee.

Veritably, a company policy partakes of the nature of an implied contract between the employer and
employee. In Parts Depot, Inc. v. Beiswenger,[68] it has been held that:

[E]mployer statements of policy . . . can give rise to contractual rights in employees without evidence
that the parties mutually agreed that the policy statements would create contractual rights in the
employee, and, hence, although the statement of policy is signed by neither party, can be unilaterally
amended by the employer without notice to the employee, and contains no reference to a specific
employee, his job description or compensation, and although no reference was made to the policy
statement in pre-employment interviews and the employee does not learn of its existence until after
his hiring. Toussaint, 292 N.W .2d at 892. The principle is akin to estoppel. Once an employer
establishes an express personnel policy and the employee continues to work while the policy
remains in effect, the policy is deemed an implied contract for so long as it remains in effect.
If the employer unilaterally changes the policy, the terms of the implied contract are also
thereby changed. (Emphasis and underscoring supplied.)
Hence, given such nature, company personnel policies create an obligation on the part of both the
employee and the employer to abide by the same.

Records show that Abbotts PPSE procedure mandates, inter alia, that the job performance of a
probationary employee should be formally reviewed and discussed with the employee at least twice:
first on the third month and second on the fifth month from the date of employment. Abbott is also
required to come up with a Performance Improvement Plan during the third month review to bridge
the gap between the employees performance and the standards set, if any.[69] In addition, a signed
copy of the PPSE form should be submitted to Abbotts HRD as the same would serve as basis for
recommending the confirmation or termination of the probationary employment.[70]

In this case, it is apparent that Abbott failed to follow the above-stated procedure in evaluating
Alcaraz. For one, there lies a hiatus of evidence that a signed copy of Alcarazs PPSE form was
submitted to the HRD. It was not even shown that a PPSE form was completed to formally assess
her performance. Neither was the performance evaluation discussed with her during the third and fifth
months of her employment. Nor did Abbott come up with the necessary Performance Improvement
Plan to properly gauge Alcarazs performance with the set company standards.

While it is Abbotts management prerogative to promulgate its own company rules and even
subsequently amend them, this right equally demands that when it does create its own policies and
thereafter notify its employee of the same, it accords upon itself the obligation to faithfully implement
them. Indeed, a contrary interpretation would entail a disharmonious relationship in the work place for
the laborer should never be mired by the uncertainty of flimsy rules in which the latters labor rights
and duties would, to some extent, depend.

In this light, while there lies due cause to terminate Alcarazs probationary employment for her failure
to meet the standards required for her regularization, and while it must be further pointed out that
Abbott had satisfied its statutory duty to serve a written notice of termination, the fact that it violated
its own company procedure renders the termination of Alcarazs employment procedurally infirm,
warranting the payment of nominal damages. A further exposition is apropos.

Case law has settled that an employer who terminates an employee for a valid cause but does so
through invalid procedure is liable to pay the latter nominal damages.

In Agabon v. NLRC (Agabon),[71] the Court pronounced that where the dismissal is for a just cause,
the lack of statutory due process should not nullify the dismissal, or render it illegal, or ineffectual.
However, the employer should indemnify the employee for the violation of his statutory rights.[72]
Thus, in Agabon, the employer was ordered to pay the employee nominal damages in the amount of
P30,000.00.[73]

Proceeding from the same ratio, the Court modified Agabon in the case of Jaka Food Processing
Corporation v. Pacot (Jaka)[74] where it created a distinction between procedurally defective
dismissals due to a just cause, on one hand, and those due to an authorized cause, on the other.

It was explained that if the dismissal is based on a just cause under Article 282 of the Labor Code
(now Article 296) but the employer failed to comply with the notice requirement, the sanction to be
imposed upon him should be tempered because the dismissal process was, in effect, initiated by an
act imputable to the employee; if the dismissal is based on an authorized cause under Article 283
(now Article 297) but the employer failed to comply with the notice requirement, the sanction should
be stiffer because the dismissal process was initiated by the employers exercise of his management
prerogative.[75] Hence, in Jaka, where the employee was dismissed for an authorized cause of
retrenchment[76] as contradistinguished from the employee in Agabon who was dismissed for a just
cause of neglect of duty[77] the Court ordered the employer to pay the employee nominal damages at
the higher amount of P50,000.00.

Evidently, the sanctions imposed in both Agabon and Jaka proceed from the necessity to deter
employers from future violations of the statutory due process rights of employees.[78] In similar regard,
the Court deems it proper to apply the same principle to the case at bar for the reason that an
employers contractual breach of its own company procedure albeit not statutory in source has the
parallel effect of violating the laborers rights. Suffice it to state, the contract is the law between the
parties and thus, breaches of the same impel recompense to vindicate a right that has been violated.
Consequently, while the Court is wont to uphold the dismissal of Alcaraz because a valid cause
exists, the payment of nominal damages on account of Abbotts contractual breach is warranted in
accordance with Article 2221 of the Civil Code.[79]

Anent the proper amount of damages to be awarded, the Court observes that Alcarazs dismissal
proceeded from her failure to comply with the standards required for her regularization. As such, it is
undeniable that the dismissal process was, in effect, initiated by an act imputable to the employee,
akin to dismissals due to just causes under Article 296 of the Labor Code. Therefore, the Court
deems it appropriate to fix the amount of nominal damages at the amount of P30,000.00, consistent
with its rulings in both Agabon and Jaka.

E. Liability of individual petitioners

as corporate officers.

It is hornbook principle that personal liability of corporate directors, trustees or officers attaches only
when: (a) they assent to a patently unlawful act of the corporation, or when they are guilty of bad faith
or gross negligence in directing its affairs, or when there is a conflict of interest resulting in damages
to the corporation, its stockholders or other persons; (b) they consent to the issuance of watered
down stocks or when, having knowledge of such issuance, do not forthwith file with the corporate
secretary their written objection; (c) they agree to hold themselves personally and solidarily liable with
the corporation; or (d) they are made by specific provision of law personally answerable for their
corporate action.[80]

In this case, Alcaraz alleges that the individual petitioners acted in bad faith with regard to the
supposed crude manner by which her probationary employment was terminated and thus, should be
held liable together with Abbott. In the same vein, she further attributes the loss of some of her
remaining belongings to them.[81]

Alcarazs contention fails to persuade.

A judicious perusal of the records show that other than her unfounded assertions on the matter, there
is no evidence to support the fact that the individual petitioners herein, in their capacity as Abbotts
officers and employees, acted in bad faith or were motivated by ill will in terminating Alcarazs
services. The fact that Alcaraz was made to resign and not allowed to enter the workplace does not
necessarily indicate bad faith on Abbotts part since a sufficient ground existed for the latter to actually
proceed with her termination. On the alleged loss of her personal belongings, records are bereft of
any showing that the same could be attributed to Abbott or any of its officers. It is a well-settled rule
that bad faith cannot be presumed and he who alleges bad faith has the onus of proving it. All told,
since Alcaraz failed to prove any malicious act on the part of Abbott or any of its officers, the Court
finds the award of moral or exemplary damages unwarranted.

WHEREFORE, the petition is GRANTED. The Decision dated December 10, 2009 and Resolution
dated June 9, 2010 of the Court of Appeals in CA-G.R. SP No. 101045 are hereby REVERSED and
SET ASIDE. Accordingly, the Decision dated March 30, 2006 of the Labor Arbiter is REINSTATED
with the MODIFICATION that petitioner Abbott Laboratories, Philippines be ORDERED to pay
respondent Pearlie Ann F. Alcaraz nominal damages in the amount of P30,000.00 on account of its
breach of its own company procedure.

SO ORDERED.

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-De Castro, Peralta, Bersamin, Del Castillo, Abad,
Villarama, Jr., Perez, and Reyes, JJ., concur.
Brion, J., see dissent.
Mendoza, J., but concur with J. Brion in his views on the procedural aspect.
Leonen, I join J. Brion in his dissent.

[1]
Rollo (G.R. No. 192571), pp. 14-58.

[2]
Id. at 1040-1054. Penned by Associate Justice Isaias Dicdican, with Associate Justices Remedios
A. Salazar-Fernando and Romeo F. Barza, concurring.

[3]
Id. at 1139-1140.

[4]
Id. at 74.

[5]
Id. at 75-76.

[6]
Id. at 51-52. Based on Abbotts organizational structure, the Regulatory Affairs Manager was under
the umbrella of Hospira ALSU, a sub-department in Abbotts Hospital Care Division. ALSU serves as
a transition body of Hospira, Inc., a corporation based in the United States of America, while it is in
the process of organization in the Philippines. Abbott intended to cede the qualified employees under
ALSU to Hospira once the latter obtained its own legal personality to engage in business in the
Philippines.

[7]
Id. at 165-168. Abbott sent Alcaraz an initial offer sheet on December 1, 2004. The compensation
contained therein was re-negotiated and thus, the increased offer as per the offer sheet dated
December 7, 2004.

[8]
Id. at 167-168.

[9]
Id. at 127, 169-172.

[10]
Id. at 174.

[11]
Id. at 127-128.

[12]
Id. at 1042-1043.

[13]
Id.

[14]
Id. at 1044.

[15]
Id.

[16]
Id.
[17]
Id. at 1044-1045.

[18]
Id. at 1045.

[19]
Id.

[20]
Id. at 1046.

[21]
Id. at 1047.

[22]
Id. at 19-21, 78, and 80-81.

[23]
Id. at 1047.

[24]
Id. at 255. See Labor Arbiter (LA) Decision dated March 30, 2006.

[25]
Formerly, Article 281 of the Labor Code; renumbered pursuant to Republic Act No. 10151.

[26]
Rollo (G.R. No. 192571), p. 267.

[27]
Id. at 261-262.

[28]
Id. at 263-267.

[29]
Id. at 255-274. Penned by Labor Arbiter Jovencio Ll. Mayor, Jr.

[30]
Id. at 269.

[31]
Id. at 270.

[32]
Id. at 271-272.

[33]
Id. at 273.

[34]
Id. at 356-378. Penned by Commissioner Romeo L. Go, with Commissioners Benedicto Ernesto
R. Bitonio, Jr. (on leave) and Perlita B. Velasco, concurring.

[35]
Id. at 377-378.

[36]
Id. at 367.

[37]
Id. at 368.

[38]
Id. at 369.

[39]
Id. at 370-373.

[40]
Id. at 413-416. Penned by Commissioner Romeo L. Go, with Presiding Commissioner Gerardo C.
Nograles and Commissioner Perlita B. Velasco, concurring.
[41]
Id. at 417-450.

[42]
Id. at 1403.

[43]
Id.

[44]
Id. at 1040-1054.

[45]
Id at 1052.

[46]
Id.

[47]
Id. at 1053.

[48]
Id. at 1139-1140.

[49]
Id. at 1218.

[50]
Id.

[51]
Id. at 1219.

[52]
Rollo (G.R. No. 193976), p. 30.

[53]
Rollo (G.R. No. 192571), pp.1223-1228.

[54]
Id. at 1224.

[55]
433 Phil. 490, 501-502 (2002).

[56]
Id. at 501-502. (Citations omitted)

[57]
Republic v. Mangotara, G.R. Nos. 170375, 170505, 173355-56, 173401, 173563-64, 178779 &
178894, July 7, 2010, 624 SCRA 360, 428, citing NBI-Microsoft Corporation v. Hwang, 499 Phil. 423,
435-436 (2005).

[58]
Sec. 5. Certification against forum shopping. The plaintiff or principal party shall certify under oath
in the complaint or other initiatory pleading asserting a claim for relief, or in a sworn certification
annexed thereto and simultaneously filed therewith: (a) that he has not theretofore commenced any
action or filed any claim involving the same issues in any court, tribunal or quasi-judicial agency and,
to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such
other pending action or claim, a complete statement of the present status thereof; and (c) if he should
thereafter learn that the same or similar action or claim has been filed or is pending, he shall report
that fact within five (5) days therefrom to the court wherein his aforesaid complaint or initiatory
pleading has been filed.

xxxx

[59]
Robinsons Galleria/Robinsons Supermarket Corporation v. Ranchez, G.R. No. 177937, January
19, 2011, 640 SCRA 135, 142.

[60]
Id.

[61]
Id. at 145.

[62]
495 Phil. 706, 716-717 (2005).

[63]
Rollo (G.R. No. 192571), p. 1201.

[64]
Id. at 367-368, 370.

[65]
Refers to the procedure stated in Article 291(b) of the Labor Code, as renumbered pursuant to
Republic Act No. 10151, viz.:
Article 291. Miscellaneous Provisions.

xxxx

(b) Subject to the constitutional right of workers to security of tenure and their right to be protected
against dismissal except for a just and authorized cause and without prejudice to the requirement of
notice under Article 283 of this Code, the employer shall furnish the worker whose employment is
sought to be terminated a written notice containing a statement of the cause for termination and shall
afford the latter ample opportunity to be heard and to defend himself with the assistance of his
representative if he so desires in accordance with company rules and regulations promulgated
pursuant to guidelines set by the Department of Labor and Employment.

xxxx
This procedure is also found in Section 2(d), Rule I, Book VI of the Omnibus Rules Implementing the
Labor Code which state:
xxxx

(d) In all cases of termination of employment, the following standards of due process shall be
substantially observed:

For termination of employment based on just causes as defined in Article 282 [now, Article 296] of
the Labor Code:

(i) A written notice served on the employee specifying the ground or grounds for termination, and
giving said employee reasonable opportunity within which to explain his side.

(ii) A hearing or conference during which the employee concerned, with the assistance of counsel if
he so desires is given opportunity to respond to the charge, present his evidence, or rebut the
evidence presented against him.

(iii) A written notice of termination served on the employee, indicating that upon due consideration of
all the circumstances, grounds have been established to justify his termination.[66] Rollo, pp. 78-81.

[67]
Id. at 1047.

[68]
170 S.W.3d 354 (Ky. 2005).
[69]
Rollo (G.R. No. 192571), p. 1052.

[70]
Id. at 1043.

[71]
G.R. No. 158693, November 17, 2004, 442 SCRA 573.

[72]
Id. at 616.

[73]
Id. at 620.

[74]
494 Phil. 114, 119-121 (2005).

[75]
Id. at 121.

[76]
Id. at 122.

[77]
Supra note 71, at 605.

[78]
Id. at 617.

[79]
Article 2221. Nominal damages are adjudicated in order that a right of the plaintiff, which has been
violated or invaded by the defendant, may be vindicated or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered by him.

[80]
Carag v. NLRC, 548 Phil. 581, 605 (2007), citing McLeod v. NLRC, 541 Phil. 214, 242 (2007).

[81]
Rollo (G.R. No. 192571), pp. 262, 1046.

DISSENTING OPINION

BRION, J.:

The Case

The case in caption was a Second Division illegal dismissal case that the Court en banc accepted for
decision pursuant to Section 3, Rule 2 of the Internal Rules of the Supreme Court.

A. The Issues Posed

The case posed two issues to the Court for resolution. The first is the manner of review that the
Court should undertake. This is an issue that underlies all the Courts decision making in light of the
various modes of review and essentials that the Rules of Court require. The second and core issue
relates to the merits of the legality or illegality of the dismissal: whether the Labor Code requirements
governing the dismissal of a probationary employee had been complied with, considered from the
prism of the mode of review and the nature of the decision under review.
B. The Factual Highlights

To briefly summarize the highlights of the case, Abbott Laboratories, Phils. (petitioner), Cecille A.
Terrible, Edwin D. Feist, Maria Olivia T. Yabut-Misa, Teresita C. Bernardo, and Allan G. Almazar
(individual petitioners) are the employer and its senior officials who dismissed respondent Pearlie
Ann F. Alcaraz from employment within three (3) months from her engagement. The respondent
complained against the petitioners on the ground that she had been illegally dismissed: (1) she was
not informed of the standards that would govern her as a probationary employee, as required by the
law (the Labor Code) and its implementing rules; (2) the petitioners even violated the companys own
internal rules on the manner of dismissing probationary employees; (3) substantively, her dismissal
was without the required just cause as required by the law and the rules; and (4) her dismissal was
done oppressively and in bad faith.

C. The Rulings Below

The Labor Arbiter ruled that the dismissal had been valid but the National Labor Relations
Commission (NLRC) reversed the Labor Arbiter; found the dismissal illegal; and damages and
attorneys fees because of the manner the dismissal was effected. The Court of Appeals (CA) found
no grave abuse of discretion and accordingly denied the Rule 65 petition that the petitioner Abbott
brought.

D. The Current Court Rulings

The Ponencia. In the present Rule 45 petition for review on certiorari before this Court, the ponencia
undertook a weighing of the evidence in light of her own view of how the evidence should be
interpreted, and came out with her own ruling for the grant of the petition.

This Dissent. I vote to dismiss the petition before us as I agree with the decision of the CA that the
NLRC did not commit any grave abuse of discretion in concluding that respondent had been
illegally dismissed from employment.

Discussion of the Issues

I. The Procedural Issue

A. The Preliminary Issue: Manner of Review

A labor case finds its way into the judicial system from the NLRC whose decision is final and
executory. Finality simply means that the NLRC ruling is no longer appealable; the legal intent is to
confine adjudication of labor cases to labor tribunals with the expertise in these cases and thereby
bring the resolution of the case to a close at the soonest possible time.

When an administrative ruling (or any ruling for that matter) is already final and unappealable, the
only recourse open under the Rules of Court is through a limited review on jurisdictional grounds
under Rule 65. This has been the mode of review followed since the Labor Code took effect in
November 1974; labor cases were directly brought to this Court but only on jurisdictional grounds
under Rule 65.[1]

In 1998, the Court in lieu of directly acting on labor cases under Rule 65 of the Rules of Court opted
to change the procedure of review through its ruling in St. Martin Funeral Homes, Inc. vs.
National Labor Relations Commission,[2] taking into account the judicial hierarchy of courts and the
growing number of labor cases elevated to the Supreme Court under Rule 65. The Court resolved
that the proper recourse from the NLRCs final and executory ruling is to assail the ruling before the
CA under Rule 65. Thus, the unappealable character of the NLRC ruling (as declared by substantive
law) did not change; only the process of review changed in terms of the court (from the Supreme
Court to the Court of Appeals) to which the labor case can initially be brought.

From the CA ruling, a dissatisfied party has the option to file an appeal with the Supreme Court
through a petition for review on certiorari under Rule 45 of the Rules of Court. This mode of appeal
limits the review to questions of law.

B. Standard of Review of a Labor Case

under Rule 45 of the Rules of Court

In Montoya v. Transmed,[3] the Supreme Court (the Court), through its Second Division, clarified the
approach that the CA and this Court should make in the handling of labor cases, among others, to
ensure the prompt handling of these cases and thereby unclog our dockets. To quote our ruling in
Montoya:

In a Rule 45 review, we consider the correctness of the assailed CA decision, in contrast with the
review for jurisdictional error that we undertake under Rule 65. Furthermore, Rule 45 limits us to the
review of questions of law raised against the assailed CA decision. In ruling for legal correctness,
we have to view the CA decision in the same context that the petition for certiorari it ruled upon was
presented to it; we have to examine the CA decision from the prism of whether it correctly
determined the presence or absence of grave abuse of discretion in the NLRC decision before
it, not on the basis of whether the NLRC decision on the merits of the case was correct. In
other words, we have to be keenly aware that the CA undertook a Rule 65 review, not a review on
appeal, of the NLRC decision challenged before it. This is the approach that should be basic in a
Rule 45 review of a CA ruling in a labor case. In question form, the question to ask is: Did the
CA correctly determine whether the NLRC committed grave abuse of discretion in ruling on
the case?[4] [emphases and italics supplied; citations omitted]
Thus, under the Rule 65 review by the CA, Montoya reiterates that the sole ground or issue allowed
is jurisdictional the presence or absence of grave abuse of discretion on the part of the NLRC in
ruling on the case. To state the obvious, this kind of review would have made it easier for the CA to
handle the case; in the absence of a grave abuse of discretion, it can dismiss labor cases for lack of
grave abuse of discretion as we do in this Court.

From the CA, further recourse is through a Rule 45 review by this Court on questions of law in
accordance with prevailing rulings. The office of a petition for review on certiorari is not to examine
and settle factual questions already ruled upon below. In this review, the Court simply determines
whether the legal correctness of the CAs finding that the NLRC ruling of illegal dismissal had
basis in fact and in law.

This manner of review is effectively a supervisory review by the courts that bears two significant
characteristics: first, it respects the mandate of the law that the decision below is final and is not for
the courts to review on appeal for its legal and factual merits; and second, review by the courts
(particularly by the Supreme Court) in the exercise of their supervisory certiorari jurisdiction is
mandated no less than by the Constitution and is intended to ensure that the deciding entity stayed
within the due bounds of its authority or jurisdiction.[5]

Specifically, in reviewing a CA labor ruling under Rule 45 of the Rules of Court, the Courts review is
limited to:

(1) Ascertaining the correctness of the CAs decision in finding the presence or absence of a
grave abuse of discretion. This is done by examining, on the basis of the parties presentations,
whether the CA correctly determined that at the NLRC level, all the adduced pieces of evidence were
considered; no evidence which should not have been considered was considered; and the evidence
presented supports the NLRC findings; and

(2) Deciding any other jurisdictional error that attended the CAs interpretation or application of the
law.

In this kind of limited review, the Court avoids reviewing a labor case by re-weighing the evidence or
re-evaluating its sufficiency; the task of weighing or evaluation, as a rule, lies within the NLRCs
jurisdiction as an administrative appellate body.

If the NLRC ruling has basis in the evidence and the applicable law and jurisprudence, then no grave
abuse of discretion exists and the CA should so declare and, accordingly, dismiss the petition. If
grave abuse of discretion exists, then the CA must grant the petition and nullify the NLRC ruling,
entering at the same time the ruling that is justified under the evidence and the governing law, rules
and jurisprudence. In our Rule 45 review, this Court must deny the petition if it finds that the CA
correctly acted.

In the context of the present case, the CA found no grave abuse of discretion committed by
the NLRC; hence, the CA dismissed the Rule 65 petition before it. In our own ruling on the
Rule 45 petition before us, we should evaluate the petition in this light, not in the manner that
the ponencia did in concluding for the grant of the petition and ruling in favor of the
petitioners.

By so doing, the ponencia undertook a factual appellate review that laid the whole case open for the
detailed examination of every piece of evidence adduced in the case and for the evaluation of the
correctness of the application of the law to the evidence found. This is a review that a Rule 45 petition
does not allow.

II. The Substantive Issues

A. The Respondents Status of Employment

II.A.1. Standards to determine probationary employment

While the respondent might have been hired as a probationary employee, the petitioners evidence
did not establish the employers compliance with the probationary employment requirements
under Article 281 of the Labor Code (as amended) and Section 6(d) of the Implementing Rules
of Book VI, Rule I of the Labor Code (as amended). Thus, the respondent should be considered a
regular employee and the case should be reviewed on this basis.

Article 281 of the Labor Code, as amended, provides:

ART. 281. Probationary employment. - Probationary employment shall not exceed six (6) months
from the date the employee started working, unless it is covered by an apprenticeship agreement
stipulating a longer period. The services of an employee who has been engaged on a probationary
basis may be terminated for a just cause or when he fails to qualify as a regular employee in
accordance with reasonable standards made known by the employer to the employee at the
time of his engagement. An employee who is allowed to work after a probationary period shall be
considered a regular employee. [italics supplied; emphasis ours]
Further, Section 6(d) of the Implementing Rules of Book VI, Rule I of the Labor Code, as amended,
states:

Sec. 6. Probationary employment. There is probationary employment where the employee, upon his
engagement, is made to undergo a trial period during which the employer determines his fitness to
qualify for regular employment, based on reasonable standards made known to him at the time of
engagement. [emphasis supplied]

Probationary employment shall be governed by the following rules:

xxxx

(d) In all cases of probationary employment, the employer shall make known to the employee the
standards under which he will qualify as a regular employee at the time of his engagement.
Where no standards are made known to the employee at that time, he shall be deemed a
regular employee. [emphases ours; italics supplied]
To sum up these provisions, a valid probationary employment requires the concurrence of two
requirements. First, the employer shall make known the reasonable standard (performance
standard) whose compliance will render the employee qualified to be a regular employee. Second,
the employer shall inform the employee of the applicable performance standard at the time of
his/her engagement. Failing in one or both, the employee, even if initially hired as a probationary
employee, should be viewed and considered a regular employee.

The ponencia apparently fully agrees with the above statement of the applicable law as it
substantially recites the same requirements, including the consequence that upon failure to comply
with these same requirements, the employee is deemed as a regular and not a probationary
employee.[6] It continues, however, with a twist that effectively negates what it has stated and
admitted about the need to communicate the regularization standards to the employee, thus:

Keeping with these rules, an employees is deemed to have made known the standards that would
qualify a probationary employee to be a regular employee when it has exerted reasonable efforts to
apprise the employee of what he is expected to do to accomplish during the trial of probation. This
goes without saying that the employee is sufficiently made aware of his probationary status as well as
the length of time of the probation.

The exception to the foregoing is when the job is self-descriptive in nature, for instance, in the case of
maids, cooks, drivers, or messengers. Also in Aberdeen Court, Inc v. Agustin, it has been held that
the rule on notifying a probationary employee of the standards of regularization should not be used to
exculpate an employee in a manner contrary to basic knowledge and common sense in regard to
which there is no need to spell out a policy or standard to be met. In the same light, an employees
failure to perform the duties and responsibilities which have been clearly made known to him
constitutes a justifiable basis for a probationary employees non-regularization. [footnotes from the
original, omitted]
Based on these premises, the ponencia then deftly argues that because the duties and
responsibilities of the position have been explained to the respondent, an experienced human
resource specialist, she should have known what was expected for her to attain regular status.
The ponencias reasoning, however, is badly flawed.

1st. The law and the rules require that there performance standards communicated at the time of
engagement to the probationary employee. The performance standards to be met are the employers
specific expectations of how the probationary employee should perform.

The ponencia impliedly admits that no performance standards were expressly given but argues that
because the respondent had been informed of her duties and responsibilities (a fact that was and is
not disputed), she should be deemed to know what was expected of her for purposes of
regularization.

This is a major flaw that the ponencia satisfies only via an assumption. The ponencia apparently
forgets that knowledge of duties and responsibilities is different from the measure of how these duties
and responsibilities should be delivered. They are separate elements and the latter element is
missing in the present case.

2nd. The ponencia glosses over the communication aspect. Not only must there be express
performance standards (except in specific instances defined in the implementing rules, discussed
below); there must be effective communication. If no standards were provided, what would be
communicated?

3rd. The ponencia badly contradicts itself in claiming that actual communication of specific standards
might not be necessary when the job is self-descriptive in nature, for instance, in the case of maids,
cooks, drivers, or messengers. The respondent, in the first place, was never a maid, cook, driver or a
messenger and cannot be placed under this classification; she was hired and employed as a human
resources manager, in short, a managerial employee. Plain and common sense reasoning by one
who ever had been in an employment situation dictates that the job of a managerial employee cannot
be self-explanatory, in the way the ponencia implied; the complexity of a managerial job must
necessarily require that the level of performance to be delivered must be specified and cannot simply
be assumed based on the communication of the managers duties and responsibilities.

4th. The ponencia also forgets that what these performance standards or measures cannot simply be
assumed because they are critically important in this case, or for that matter, in any case involving
jobs whose duties and responsibilities are not simple or self-descriptive. If the respondent had been
evaluated or assessed in the manner that the companys internal rules require, these standards would
have been the basis for her performance or lack of it. Last but not the least, the respondents services
were terminated on the basis of the performance standards that, by law, the employer set or
prescribed at the time of the employees engagement. If none had been prescribed in the first place,
under what basis could the employee then be assessed for purposes of termination or regularization?

From these preliminary take-off points in the ponencias premises, it can already be discerned
that something is badly amiss and skewed in its appreciation and review of the rulings of the
NLRC and the CA. It is an appreciation that goes beyond what a determination of grave abuse
of discretion requires. It is an evaluation of the adduced evidence based on externalities
beyond the face value of the presented evidence.

In this case, the ponencia simply disregarded the plain import of the evidence or the lack of it,
and ventured into the realm of assumptions to justify its desired conclusions. In the
mathematical realm of problem solving, it appears to have started from the conclusion and
solved the problem backwards so that the conclusion would fit into its stretched reading of
the evidence.

II.A.2. The respondent should be deemed a regular employee

In the context of this case, an initial determination of how the respondents employment started and of
her legal status at that point is the best starting point in determining the validity of her dismissal.

The respondent was indisputably initially hired as a probationary employee. This is not a contested
point. The established facts and the applicable law, however, dictate otherwise from the perspective
of law as the petitioners failed to show compliance with the two requirements of Article 281 of
the Labor Code (as amended) and of Section 6(d) of the Implementing Rules of Book VI, Rule I of the
Labor Code (as amended).

This was what the NLRC found, leading the CA to conclude that no grave abuse of discretion
intervened in the NLRCs ruling because its findings were supported by the evidence on
record and by the correctly-chosen applicable law. In stark contrast, the ponencias reading,
although based on the same legal premises, was based on shaky assumptions, not on the hard
evidence that the tribunals below appreciated.

II.A.2(a). No specific employment standard on record.

As the NLRC found (and as confirmed by the CA), no term or provision exists in the respondents
Employment Contract[7] relating to the performance standard that the respondent was expected to
observe. The Employment Contract, duly presented as evidence, only proved the terms and
conditions of the respondents employment as therein indicated, i.e., the position title, the assigned
department, the status of employment, and the period of employment. Beyond these, the
Employment Contract did not say anything more. To be sure, nothing more can be extracted from this
piece of evidence except the facts stated and the inferences by implication from the expressly
disclosed information. Significantly, none of these can be characterized or inferred by implication as
performance standards.

The best evidence of what the ponencia did when it saw matters otherwise, is its own statement: its
basis is not what the submitted evidence state but on what she was largely impelled to recognize.
To quote the ponencias own words:

A punctilious examination of the records reveals that Abbott had indeed complied with the above
requirements. This conclusion is largely impelled by the fact that Abbott clearly conveyed to
Alcaraz her duties and responsibilities as Regulatory Affairs Manager prior to, during the time of
her engagement, and the incipient states of her employment. On this score, the Court finds it apt to
detail not only of the incidents which point out to the efforts made by Abbott but also those
circumstances which would show that Alcaraz was well-apprised of her employers expectations that
would, in turn determine her regularization: [emphasis supplied]
The petitioners other pieces of evidence that the ponencia cited and used to support its conclusion do
not and cannot, however, satisfy the requirement for performance standards that must be
communicated at the time of engagement.

Specifically, these were the Offer Sheet dated December 7, 2004, and the pre-employment
orientation on the respondents duty to implement the petitioners Code of Conduct, office policies
and training program.

The Offer Sheet was designed to inform the respondent of the compensation and benefits package
offered to her by the petitioner and can in no way be read as a statement of the applicable
probationary employment standard.[8] It was communicated even prior to engagement when the
parties were negotiating, not at the point of engagement as the law requires.

The pre-employment orientation on the respondents duty to implement the petitioners Code of
Conduct, office policies and training program likewise cannot be characterized as performance
standards; they simply related to activities aimed at acquainting and training the respondent on her
duties and not for the purpose of informing her of the performance standards applicable to her. What
stands out is that they do not pertain specifically to the respondent and the required
performance standard applicable for her qualification for regular employment; they related to
the staff the respondent managed and supervised. Additionally, these were all relayed prior to or after
the respondent was engaged by the petitioner.

An important distinction to remember at this point is that the respondents knowledge of the duties that
her work entailed, and her knowledge of the employers performance standard, are two distinct
matters separately requiring the presentation of independent proof.

The requirement of independent proof is found under Article 281 of the Labor Code, as amended,
and its implementing rule that deem an employee to be regular if he/she was not informed of the
performance standard for regularization. Independent proof is likewise necessary as the law
provides an additional ground for terminating a probationary employment, i.e., when the employee
fails to qualify as a regular employee in accordance with the reasonable standards made known
by the employer[.][9]

The performance standard contemplated in law may be proven by evidence of how the employees
performance was intended to be or was, in fact, measured by the employer. The performance
standard may be in the form of a clear set of the employers expectations, or by a system of
feedbacks (e.g., comment cards) and document evaluation or performance evaluation and appraisals
conducted by the employer.

These were the pieces of evidence that the NLRC, as confirmed by the CA, did not see in the
evidence or in the petitioners presented case. The ponencia, unfortunately, glossed over these
gaps and omissions in the petitioners case and chose to believe, even without evidentiary basis that

Considering the totality of the above-stated circumstances, it cannot, therefore, be doubted that
Alcaraz was well-aware that her regularization would depend on her ability and capacity to fulfill the
requirements of her position as Regulatory Affairs Manager and that her failure to perform such
would give Abbott a valid cause to terminate her probationary employment. [emphasis supplied]
From this strained and stretched reading that magically saw the required prescribed performance
standards that by the factual findings of the NLRC and the CA never existed, the ponencia went on to
conclude:

Verily, basic knowledge and common sense dictate that the adequate performance of ones duties is,
by and of itself, an inherent and implied standard for a probationary employee to be regularized; such
is a regularization standard which need not be literally spelled out or mapped into technical indicators
in every case. In this regard, it must be observed that the assessment of adequate duty performance
is in the nature of a management prerogative which when reasonably exercised as Abbott did in this
case should be respected. This is especially true of a managerial employee like Alcaraz who was
tasked with the vital responsibility of handling personnel and important matters of her department.
This conclusion, of course, simply extends the magic by using basic knowledge and common sense
to dictate the existence of inherent and implied standards of a probationary employee, and even
offers a view of management prerogative that is unusual in the given facts of this case. This approach
eloquently exemplifies what I mentioned above as the solving backwards approach that the ponencia
used.

II.A.2(b). No specific performance standard

communicated to the respondent.

Complementing the requirement for the existence of performance standards is the required
communication of the performance standard to the respondent. Again, nothing in the records
shows that the petitioner ever communicated any performance standard to the respondent.

The ponencia, in building up a case contrary to what the NLRC and the CA found, cites the evidence
the petitioners point to the respondents receipt of copies of the petitioners Code of Conduct,
Probationary Performance Standards and Evaluation, and Performance Excellence Orientation
Modules. The NLRC and the CA, looking at the same pieces of evidence, saw these in a different
light as they did not only examine the documents themselves but went to the extent of
examining and appreciating the circumstances surrounding the respondents receipt of these
documents.

The evidence on record suggests, as the respondent directly testified to, that the cited documents
were not given to her for the purpose of complying with the petitioners obligation to inform her of the
performance standards applicable to her. The documents were, in fact, given by the petitioner to
assist her in monitoring the employees assigned to her department, i.e., as the documents
she must rely on in conducting the performance evaluations of the staff assigned to her
department. In short, the respondent received the documents because they were necessary in the
discharge of her functions.

From the point of law, compliance with the first requirement is not also satisfied by the petitioners
assertion that the respondent knew that only one performance standard applied to all employees.
Notably, the law requires proof that the employer specifically made known to her the performance
standards applicable to her to enable her to qualify for regular employment. The required
communication must be an effective one if the law were to be given meaningful substance,
not a mere perfunctory transmission of information.

Faced with these opposing claims, the CA apparently weighed matters in the respondents (and
effectively in the NLRCs) favor. In this situation of possible equipoise, the CA did not rule incorrectly
from the point of law when it acted as it did.

Two factors tilt the balance in favor of the legal correctness of the CAs ruling. The first is that the
respondents position (found by the NLRC to be meritorious) was not without any basis in fact and
in law. The second is from the latter perspective; Article 4 of the Labor Code and established
jurisprudence hold that any doubt in a labor situation must be resolved in the employees favor.

Thus, again, the ponencias case and its conclusion must fail.

II.A.2(c). Performance standards and the internal

procedures for their evaluation were not applied
to the respondent.
I can only agree with one aspect of the ponencia its admission that Abbotts internal procedures were
not applied to the respondent. I cannot dispute and I fully agree with the following passages of the
ponencia:

Records show that Abbotts PPSE procedure mandates, inter alia, that the job performance of a
probationary employee should be formally reviewed and discussed with the employee at least twice:
first on the third month and second on the fifth month from the date of employment. Abbott is also
required to come up with a Performance Improvement Plan during the third month review to bridge
the gap between the employees performance and the standards set, if any. In addition, a signed copy
of the PPSE form should be submitted to Abbotts HRD as the same would serve as basis for
recommending the confirmation or termination of the probationary employment.

In this case, as it is apparent that Abbott failed to follow the above-stated procedure in evaluating
Alcaraz. For one, there lies a hiatus of evidence that a signed copy of Alcaraz PPSE form was
submitted to the HRD. It was not even shown that a PPSE form was completed to formally assess
her performance. Neither was the performance evaluation discussed with her during the third and fifth
months of her employment. Nor did Abbott come up with the necessary Performance Improvement
Plan to properly gauge Alcaraz performance with the set company standards.

While it is Abbotts management prerogative to promulgate its own company rules and even
subsequently amend them, this right equally demands that when it does create its own policies and
thereafter notify its employees of the same, it accords upon itself the obligation to faithfully implement
them. Indeed, a contrary interpretation would entail a disharmonious relationship in the work place for
the laborer should never be mired by the uncertainty of flimsy rules in which the latters labor rights
and duties would, to some extent, depend.[10] [footnotes in the original omitted]
Internal processes, however, cannot be dissociated from the substance that the processes seek to
achieve. This is the essence of due process. There is the requirement for the observance of proper
procedures, hand in hand with the substance of what the law seeks to level the playing field between
the all-powerful employer and the vulnerable employee who lies at the mercy of the employer if he or
she can be dismissed on the basis of the latters whim. This attempt at leveling is the reason for the
requirements for duly disclosed performance standards and their communication to the probationary
employee at the very beginning of the relationship. Reason, experience and common sense dictate
that the substance of the law carry more weight than the process component so that any violation of
the substantive portion is a transgression that mere obeisance to the process or the recognition of the
failure of process, cannot cure. From this perspective, the laudable quotation above loses its luster.

Lusterless or otherwise, the ponencias admission of Abbotts procedural inadequacies is not without
significance in terms of the present case as a whole. Notably, the above quotation expressly and
impliedly admits that no effort at all was ever made for the conduct of an assessment or evaluation of
the respondents performance; in fact, no performance evaluation forms appear to have been
submitted by the company. The dearth of evidence on this point (described by the ponencia as a
hiatus of evidence) is completely consistent with what the ponencia explicitly and impliedly admits
from the very beginning: there was no evidence of any performance standard furnished the
respondent so that the ponencia could only deduce the existence of performance standards
from its assumptions and stretched rationalizations; much less was there any communication
of performance standards qua performance standards, as this is a matter that was also
assumed.

I draw attention, too, to another unusual feature of this case indicating, not only the omissions that
the ponencia already cited, but the implication as well that the respondent had been singled out for
special treatment by the petitioner officers. At the very least, this incident indicates that the petitioner
did not apply the same standards and processes to the respondents work. The petitioners prescribed
procedure was narrated in an earlier version of the ponencia in this wise:

On April 20, 2005, Alcaraz had a meeting with petitioner Cecille Terrible (Terrible), Abbotts former HR
Director, to discuss certain issues regarding staff performance standards. In the course x x x thereof,
Alcaraz accidentally saw a printed copy of an e-mail sent by Walsh to some staff members which
essentially contained queries regarding the formers job performance. Alcaraz asked if Walshs
action was the normal process of evaluation. Terrible said that it was not.[11] (emphasis ours)
This allegation by the respondent in this regard in her pleadings was impliedly admitted by the
petitioner when it failed to offer any refutation. Interestingly, the above allegation was included in
the narration of facts of the Labor Arbiter, the NLRC, the CA and an earlier version of the
ponencia, although they arrived at two (2) different conclusions.

The respondents unrefuted allegation was not considered at all in the conclusions of the Labor
Arbiter and of the ponencia.[12] On the other hand, the NLRC and the CA concluded that a different
performance standard and evaluation process was applied to the respondent in light of the
circumstances of the case, gleaned from the evidence submitted.[13]

In my view, the NLRC and the CA were not without basis in making their conclusion as the incident,
taken together with the facts supported by the available evidence, is vital in appreciating the nature of
the respondents employment.

Since the respondent, as the incident suggests, was bound by a different set of standards and
procedures, and since no evidence of record existed showing what these standards were or that the
required procedures were observed, the petitioners theory that the respondent was informed of, and
was evaluated pursuant to, the performance standards applicable to her position, is effectively
negated. This leads to the conclusion that the respondent, from the beginning, had been a
regular employee as a result of the failure of Abbotts HR processes. A much simpler view,
related this time to the manner of her termination, is that the respondent was simply differently
treated.

B. Just Cause for Dismissal Must Exist

To justify the dismissal of an employee, the employer carries the burden of proving that the dismissal
was for a just cause and with the observance of due process prior to dismissal.[14] The employer has
to discharge this burden by clear, accurate, consistent and convincing evidence;[15] in case of doubt,
the presumption in the employees favor under Article 4 of the Labor Code should apply.

II.B.1. The petitioner had no valid cause to dismiss

the respondents employment

The respondent was dismissed as she failed to qualify as regular employee in accordance with the
prescribed standards set by the Company.[16] Even granting for the sake of argument that the
petitioner had apprised the respondent of an applicable performance standard, the evidence failed to
show that the respondent did not meet this standard in a manner and to the extent equivalent to the
just cause that the law requires.

II.B.1(a). Just cause requirement for employees,

whether probationary or regular.

An important legal point that should not be lost in considering this case is that a probationary
employee does not have lesser rights than a regular employee under the Labor Code in terms
of the just cause for the termination of an employment. While the strict application of Article 282
of the Labor Code may be relaxed because the employee is still under probation (so that analogous
probationary status rules may apply), the same essential just cause for dismissal must be present
and must be proven. In other words, probationary employment does not mean that the employee is
under an employment at will situation as that phrase is understood in American jurisprudence. To
reiterate, the fact that the respondent was still in her probationary period of employment did not
lessen the burden of proof that the law imposed on the petitioners to prove the just cause for her
dismissal.[17] Probationary employees are protected by the security of tenure provision of the
Constitution and they cannot be removed from their position except only for cause.[18]

II.B.1(b). The evidentiary status of the just cause for dismissal

In the present case, the evidence did not show the just cause that Article 282 of the Labor Code
requires. No evidence on record showed the commission by the respondent of any of the following
acts or omissions:

(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 representatives; and

(e)

Other causes analogous to the foregoing.

On the contrary, the records disclose that the respondent performed her duties under the guidance of
the petitioners management and worked in line with the tasks assigned to her.[19] The petitioners
allegation of the respondents poor performance could not have been substantiated considering the
lack of any clear performance standard in evaluating the respondents work.

II.B.2. The petitioner violated its own procedural

requirements in the performance evaluation

A first instance when the discussion related to process was with respect to the communication of
performance standards. This topic also relates to process, but this time on the matter of the
procedure to be taken in performance evaluation: the petitioner failed to observe its own
procedural requirements in evaluating the respondents probationary employment.

The petitioners prescribed procedure gives probationary employees two (2) opportunities to meet and
qualify for regularization. As mentioned before, the reviews were aimed at informing the employees of
their work performance based on the petitioners standard and on how they can improve it to qualify
for regularization. For reasons not disclosed in the records, the prescribed procedure was not
followed by the petitioner in the respondents case. She was immediately terminated from
employment without having been evaluated and without undergoing the evaluation process under the
petitioners prescribed procedure.

While the petitioners failure to observe its own procedures is not disputed in the ponencia, the
implication of Abbotts failure cannot simply be glossed over. Abbotts non-compliance should be
viewed from the point of fairness or lack of it, that attended the respondents dismissal. This
circumstance should be considered together with the other circumstances of the case, if only
because the petitioners basic unfairness rendered doubtful the real cause in the termination of her
employment.

In other words, any deviation from the prescribed procedures must be sufficiently explained to
remove doubts on the genuineness of the cause of dismissal. In this case, not only did the petitioner
fail to observe its own prescribed procedure; more importantly, it also failed to provide an
explanation on why the prescribed procedure was not followed in the respondents case.

Significantly, the NLRC appreciated all these in this case and this appreciation was duly noted
and evaluated by the CA. As there was in fact basis in fact and in law in the NLRCs findings
on this aspect of the case, again the CA correctly found no grave abuse of discretion in the
NLRCs actions.

II.B.3. Violation of the Labor Codes procedural requirements

Additionally, the petitioner failed to comply with the procedural due process of the Labor Code when it
terminated the respondents employment. The two-written notice requirement under Section 2,
Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code, as amended, was never
observed. To quote this provision:

Section 2. Standards of due process; requirements of notice. In all cases of termination of

employment, the following standards of due process shall be substantially observed:

I. For termination of employment based on just causes as defined in Article 282 of the Code:

(a) A written notice served on the employee specifying the ground or grounds for termination,
and giving to said employee reasonable opportunity within which to explain his side;

(b) A hearing or conference during which the employee concerned, with the assistance of counsel if
the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut
the evidence presented against him; and

(c) A written notice of termination served on the employee indicating that upon due
consideration of all the circumstance[s], grounds have been established to justify his
termination.

In case of termination, the foregoing notices shall be served on the employees last known address.
[emphasis supplied]

The first notice is complied with when the employee is properly apprised of the charges brought
against him/her so that he/she can properly prepare for his/her defense.[20] The second notice is
complied with when the employee is informed of the employers intention to terminate the
employment.[21] A formal "trial-type" hearing, although preferred, is not absolutely necessary to satisfy
the employee's right to be heard. In Perez v. Philippine Telegraph and Telephone Company,[22] the
Court laid down the following guiding principles in connection with the hearing requirement in
dismissal cases:

a)

"ample opportunity to be heard" means any meaningful opportunity (verbal or written) given to the
employee to answer the charges against him and submit evidence in support of his defense, whether
in a hearing, conference or some other fair, just and reasonable way.

b)

a formal hearing or conference becomes mandatory only when requested by the employee in writing
or substantial evidentiary disputes exist or a company rule or practice requires it, or when similar
circumstances justify it.

c)

the "ample opportunity to be heard" standard in the Labor Code prevails over the "hearing or
conference" requirement in the implementing rules and regulations.

From the records, the respondent received only one notice and was not given ample
opportunity to be heard before her employment was terminated. The respondent was not served a
first written notice indicating: (1) the grounds for terminating her employment; and (2) a directive
giving her the opportunity to submit a written explanation within a reasonable period. Neither was the
respondent given the ample opportunity to be heard as required by law. There was only compliance
with the second notice requirement through the petitioners letter dated May 19, 2005 which was
already a written notice of termination of employment.[23]

In defense of Abbotts failure to observe the two-notice requirement, the ponencia argues that a
different procedure applies when terminating a probationary employee; the usual two-notice
requirement does not govern, citing for this purpose Section 2, Rule I, Book VI of the Implementing
Rules of the Labor Code.

The ponencia, however, forgets that the single notice rule applies only if the employee is validly on
probationary basis; it does not apply where the employee is deemed a regular employee for the
companys failure to provide and to communicate a prescribed performance standard
applicable to the probationary employee. The ponencia itself admits that in such a case, the
employee would then be a regular employee. Since the petitioner utterly failed to support by evidence
its compliance with the legal requirements on performance standards, the two-notice requirement for
regular employees must perforce fully apply.

C. The Consequences of the Respondents Illegal Dismissal

The above analysis shows that the respondent had been illegally dismissed from her employment.
The petitioner failed to show that her dismissal was for a valid cause. The petitioner also failed to
respect the respondents procedural due process rights under the law.

As a consequence, the NLRC and the CA, thereafter, correctly ordered the respondents
reinstatement and the payment of the monetary awards of backwages, moral damages, exemplary
damages and attorneys fees. The CA and the NLRC also correctly held that the individual petitioners
(i.e., the corporate officers of the petitioner) should be solidarily liable with the petitioner for the
respondents monetary awards.

II.C.1. The recoverable reliefs

Article 279 of the Labor Code, as amended, provides the following awards to an illegally dismissed
employee:

Art. 279. Security of tenure. - In cases of regular employment, the employer shall not terminate the
services of an employee except for a just cause or when authorized by this Title. 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.
By jurisprudence derived from [the above] provision, separation pay may be awarded to an illegally
dismissed employee in lieu of reinstatement.[24] Under Section 4(b), Rule I of the Rules Implementing
Book VI of the Labor Code, separation pay is awarded, in lieu of reinstatement, to an illegally
dismissed employee when reinstatement is no longer possible, i.e., when the dismissed employees
position is no longer available, or the continued relationship between the employer and the employee
would no longer be viable due to the strained relations between them, or when the dismissed
employee opts not to be reinstated, or when the payment of separation benefits would be for the best
interest of the parties involved.

Thus, an illegally dismissed employee is entitled to two reliefs: backwages and reinstatement.
The two reliefs provided are separate and distinct. In instances where reinstatement is no longer
feasible because of strained relations between the employee and the employer, separation pay is
granted. In effect, an illegally dismissed employee is entitled to either reinstatement, if viable, or
separation pay if reinstatement is no longer viable, and backwages.[25]

II.C.2. Other awards as a consequence

of the damages suffered
In addition to these basic awards, an illegally dismissed employee may also be awarded moral and
exemplary damages and attorneys fees. Jurisprudence holds that moral and exemplary damages
are awarded when the illegal dismissal is attended by bad faith.[26] The Court has also ruled that
corporate officers are solidarily liable with the employer company for the employees termination of
employment done with malice or bad faith.[27]

A review of the facts of the case shows ample evidence supporting the petitioners bad faith, as
shown by the manner in which the respondents employment was terminated. The NLRC, in its
decision, exhaustively discussed the petitioners bad faith, as demonstrated by the actions of the
individual petitioners:

The records show that complainant-appellants dismissal was effected by individual respondents-
appellees in a capricious and high-handed manner, anti-social and oppressive, fraudulent and in bad
faith, and contrary to morals, good customs and public policy. Bad faith and fraud are shown in the
acts committed by respondents-appellees before, during and after complainant-appellants dismissal
in addition to the manner by which she was dismissed. First, complainant-appellant was pressured to
resign: (1) she was threatened with termination, which will surely damage her reputation in the
pharmaceutical industry; (2) she was asked to evacuate her Commission and ordered not to enter the
Companys premises even if she was still an Abbott employee; and (3) individual respondents Ms.
Terrible and Ms. Walsh made a public announcement to the staff that complainant-appellant already
resigned even if in reality she did not. All of which caused complainant-appellant much humiliation,
serious anxiety and besmirched reputation. [28]
The CA also described in detail the abrupt and oppressive manner in which the respondents
employment was dismissed by the petitioner:

On May 23, 2005, the private respondent still reported for work since petitioner Abbott had not yet
handed the termination notice to her. However, the security guard did not allow her to enter the
Hospira ALSU office pursuant to Ms. Walsh[s] instruction. She requested Ms. Walsh that she be
allowed to enter the company premises to retrieve her last remaining things in her office which are
mostly her personal belongings. She was allowed to enter. However, she was surprised to see her
drawers already unlocked and, when she opened the same, she discovered that her small brown
envelope x x x, white pouch containing the duplicate keys, and the staffs final evaluation sheets were
missing. The private respondent informed Ms. Bernardo about the incident. The latter responded by
saying she was no longer an employee of the company since May 19, 2005.

The private respondent reported the matter to the Pasig Police Station and asked for help regarding
the theft of her properties. The Pasig Police incident report stated as follows:
xxxx

When confronted by the suspect, in the presence of one SOCO officer and staff, named Christian
Perez. Kelly Walsh allegedly admitted that she was the one who opened the drawer and got the
green folders containing the staff evaluations. The Reportee, was told by Kelly Walsh that her Rolex
wristwatch will be returned to her provided that she will immediately vacate her office.
On the same date, the private respondents termination letter dated May 19, 2005 was handed to her
by Ms. Walsh, Mr. Almazar and Ms. Bernardo. On May 27, 2005, the private respondent received
another copy of the said termination notice via registered mail.[29]

These explanations for the actions taken show that the NLRCs recognition of the bad faith
was not without basis and was in fact supplemented by the CA in the appellate courts own
confirmatory explanation.

D. Application of the Rule 45 Standard of Review

Under the evidentiary situation that prevailed in this case as described above in some detail, an
expression of wonder cannot be helped, particularly on how the ponencia could conclude that the CA
committed a reversible error when it found no grave abuse of discretion in the NLRCs actions on the
case. In contrast with the findings of the Labor Arbiter, the findings and conclusions of the NLRC, as
affirmed on a Rule 65 review by the CA, were based on the law and jurisprudence as properly
applied to the established set of facts and evidence.

First, while the respondent, from the petitioners standpoint, was hired as a probationary employee,
she was deemed a regular employee pursuant to the clear provisions of Article 281 of the Labor
Code, as amended and Section 6(d) of the Implementing Rules of Book VI, Rule I of the Labor Code,
as amended. The evidence adduced failed to show that the petitioner ever apprised the respondent
at the time of her engagement of the standards she must meet to qualify for regular employment.

Second, the respondents termination from employment had no basis in fact and in law. Since the
records failed to support the petitioners allegation that the respondents alleged poor performance and
tardiness were proven by evidence and, in fact, fell within the enumeration in Article 281 and Article
282 of the Labor Code, reason dictates that the present petition be denied.

At the risk of repetition, the adduced evidence, in the first place, did not prove that the respondents
work failed to comply with the petitioners performance standard as no proof of the performance
standard applied to the respondents work was actually presented. The respondents employment was
also terminated without undergoing any performance evaluation.

The evidence adduced did not also prove any act of omission under Article 282 of the Labor Code
committed by the respondent. No evidence was presented on the respondents actual work so as to
determine whether her acts/omissions constituted a just cause for termination, such as serious
misconduct or gross or habitual neglect of duty or any other analogous cause to the just causes
mentioned in the law.

As the records show, neither was there compliance with the respondents own internal procedures nor
with the laws procedural due process. The respondent was not served the two-notice required by law
before her employment was terminated by the petitioner.

Third, the NLRCs monetary awards, as affirmed by the CA, were appropriate consequences of the
respondents illegal dismissal from employment. The payment of the respondents backwages and the
order of reinstatement were consistent with the provisions of Article 279 of the Labor Code.
Jurisprudence also provides the award of moral and exemplary damages, as well as attorneys fees,
when bad faith is proven in the termination of employment.

In this case, the bad faith exhibited by the individual petitioners was clearly established in the
records. The individual petitioners bad faith was demonstrated by the evidence of how they unfairly
effected the termination of the respondents employment.

The narration of facts of the Labor Arbiter, the NLRC and the CA shows, among others, that: (1) the
individual petitioners did not follow the petitioners prescribed procedure performance evaluation as, in
fact, the respondents work was not evaluated; (2) the individual petitioners, through their concerted
actions, ganged up on the respondent in forcing her to resign from employment; (3) the individual
petitioners pressured the respondent to resign by announcing her resignation to the office staff,
thereby subjecting her to unwarranted humiliation; and (4) they blackmailed the respondent by
withholding her personal possessions until she resigned from employment.

Bad faith can also be inferred from the lack of fairness and underhandedness employed by the
individual petitioners on how they informed the respondent of the termination of her employment. The
records disclose that the respondent was lured into a meeting on the pretext that her work
performance was to be evaluated; she was caught off-guard when she was informed that her
employment had been terminated. Aside from the abrupt notification, bad faith can also be deduced
from the fact that the termination was made immediately effective; the respondent was immediately
banned from the petitioners premises after she was informed that her employment had been
terminated.

To my mind, the NLRC correctly ruled that the individual petitioners were solidarily liable, together
with the petitioner, to pay the monetary awards. The cited circumstances constitute sufficient
evidence of their bad faith in terminating the respondents employment. Verily, corporate officers are
solidarily liable with the corporation to pay monetary awards in illegal dismissal cases when their bad
faith is established in the termination of the employment.

III. Conclusion
I close this Dissent with the note that the constitutional protection of security of tenure is a right
enjoyed by every employee. Employment, regardless of the employment status, may only be
terminated for cause and within the procedure prescribed by law and jurisprudence. A review of the
records shows that no reversible error was committed by the CA in finding the NLRC free from any
taint of grave abuse of discretion in ruling on the respondents illegal dismissal. This conclusion is
what the Court should reflect in its Decision if it is to discharge in good faith its duty to adjudicate.

[1]
The following explanation was made in my Rejoinder to Reply (On the manner of reviewing a
Court of Appeals Labor Ruling) that was submitted to the Court En Banc in the course of the
exchanges on this aspect of the case. The explanation distinguished between appealable cases and
those that, while not appealable, can still be reviewed through a Rule 65 petition for certiorari.

For a full understanding of these distinctions, it must be kept in mind that several levels of review may
exist for rulings emanating from the lowest levels of adjudication before they reach the Supreme
Court. The ruling of an inferior court or tribunal (for example, the Regional Trial Court [RTC]) is first
reviewed by an appellate court (the CA) on questions of fact or mixed questions of fact and law; the
CA decision may then in turn be reviewed by the Supreme Court under Rule 45.

Generally, two types of decisions or rulings may be brought to the appellate courts for review and
decision; the appellate courts' decisions are in turn subject to review by the Supreme Court.

The first type relates to cases that come to the appellate court by way of appeal (e.g., the ruling of
the RTC in the exercise of its original jurisdiction that is appealed to the CA on issues of facts and law
under Rule 41 of the Rules of Court). The second type involves the review by the CA of decisions of
inferior courts or tribunals whose rulings, by law, are final and executory (e.g., the ruling of the
National Labor Relations Commission [NLRC] that under the Labor Code is final and executory). This
is the review of rulings that, by law, is not appealable and thus can only be made on limited
jurisdictional grounds.
A CA ruling under the first type can be challenged by the aggrieved party before the Supreme Court
through a petition for review on certiorari under Rule 45 of the Rules of Court. Under Rule 45, the
review is only on questions of law unless a review of questions of fact is allowed under the terms
established by jurisprudence. This is the case in the example given above - an RTC ruling that is
appealed to the CA on both factual and legal grounds and which CA decision on appeal is now
before the Supreme Court for further review. This may be the model of a Supreme Court review that
the ponente might have had in mind in asserting that the Supreme Court should be able to undertake
a review of the full range of legal issues before it.

In the second type as exemplified above, a ruling by the NLRC, although final and executory, may
be brought to the CA under Rule 65 of the Rules of Court, i.e., on a petition for certiorari, limited to
jurisdictional grounds, usually for grave abuse of discretion amounting to lack or excess of
jurisdiction. The final and executory nature of the NLRC decision under review can best be
appreciated when it is considered that the decision can immediately be implemented unless a
temporary restraining order or injunction is issued by the CA; the Rule 65 mode of review is rendered
necessary because the decision or ruling under review, by law, is already final. Finality1 means that
the decision is no longer appealable1 and may be reviewed only when the ruling is void because of
jurisdictional defects.

[2]
356 Phil. 811 (1998).

[3]
G.R. No. 183329, August 27, 2009, 597 SCRA 334.

[4]
Id. at 342-343.

[5]
Rejoinder to Reply, supra, at Note 1.

[6]
Decision, at page 12.

[7]
Rollo, p. 174.

[8]
Id. at 77.

[9]
See Article 281 of the Labor Code, as amended.

[10]
Decision, at pp. 16 17.

[11]
Pages 4-5 of the ponencia.

[12]
Ibid.; rollo, pp. 260 and 271.

[13]
Rollo, pp. 1044-1045.

[14]
Aliling v. Feliciano, G.R. No. 185829, April 25, 2012, 671 SCRA 186, 205.

[15]
Ibid.

[16]
Rollo, p. 78.
 [17]
Aberdeen Court, Inc. v. Agustin, Jr., 495 Phil. 706, 712 (2005).

[18]
Ibid.

[19]
See page 4 of the ponencia.

[20]
Dolores T. Esguerra v. Valle Verde Country Club, Inc., et al., G.R. No. 173012, June 13, 2012.

[21]
Ibid.

[22]
G.R. No. 152048, April 7, 2009, 584 SCRA 110, 127.

[23]
Rollo, p. 78.

[24]
Session Delights Ice Cream and Fast Foods v. Court of Appeals (Sixth Division), G.R. No.
172149, February 8, 2010, 612 SCRA 10, 25, citing Mt. Carmel College v. Resuena, G.R. No.
173076, October 10, 2007, 535 SCRA 518, 541.

[25]
Macasero v. Southern Industrial Gases Philippines, G.R. No. 178524, January 30, 2009, 577
SCRA 500, 507.

[26]
Nazareno v. City of Dumaguete, G.R. No. 177795, June 19, 2009, 590 SCRA 110, 141-142. See
also Civil Code, Articles 2208, 2217, 2219 and 2232.

[27]
MAM Realty Development Corporation v. NLRC, G.R. No. 114787, June 2, 1995, 244 SCRA 797,
803.

[28]
Rollo, pp. 375-376.

[29]
Id. at 1046-1047.

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