LEO T.

MAULA, Petitioner,

v.

XIMEX DELIVERY EXPRESS, INC., Respondent

GR No. 207838 January 25, 2017

TOPIC: serious misconduct, totality of infractions, preventive suspension

PONENTE: Peralta

FACTS:

Petitioner Maula was hired by respondent as Operation Staff. His duties include, but are not
limited to, documentation, checker, dispatcher or airfreight coordinator.

Petitioner’s employment was uneventful until came February 18, 2009 when the respondent’s
HRD required him and some other employees to sign a form sub-titled “Personal Data for New
Hires.” When he inquired about it he was told it was nothing but merely for the twenty-peso
increase which the company owner allegedly wanted to see. He could not help but entertain
doubts on the scheme as they were hurriedly made to sign the same. It also appeared from the
form that the designated salary/wage was daily instead of on a monthly basis.

On February 25, 2009, petitioner, together with some other concerned employees, requested for
a meeting with their manager together with the manager of the HRD. They questioned the
document and aired their side voicing their apprehensions against the designation “For New
Hires” since they were long time regular employees earning monthly salary/wages and not daily
wage earners. The respondent company’s manager, Amador Cabrera, retorted: “Ay wala yan
walang kwenta yan.”

On March 25, 2009, in the evening, a supposed problem cropped up. A misroute of cargo was
reported and the company cast the whole blame on the petitioner. It was alleged that he
erroneously wrote the label on the box – the name and destination, and allegedly was the one
who checked the cargo. The imputation is quite absurd because it was the client who actually
wrote the name and destination, whereas, it was not the petitioner but his co-employee who
checked the cargo. The following day, he received a memorandum charging him with
“negligence in performing duties.”

On April 2, 2009 at 4:00 p.m., he received another memorandum of “reassignment” wherein he

was directed to report effective April 2, 2009 to Omalza and Marzan in another department of
the company. But then, at around 4:30 p.m. of the same day, he was instructed by the HR
manager to proceed to his former office for him to train his replacement. He went inside the
warehouse and at around 6:00 p.m. he began teaching his replacement. At 8:00 p.m., his
replacement went outside. He waited for sometime and came to know later when he verified
outside that the person already went straight home.
When he went back inside, his supervisor insisted to him to continue with his former work, but
due to the “reassignment paper” he had some reservations. Sensing he might again be framed
up and maliciously accused of such as what happened on March 25, 2009, he thus refused.
Around 10:30 p.m., he went home.

The following day, an attempt to serve another memorandum was made on him. This time he
was made to explain by the HR Manager why he did not perform his former work and not report
to his reassignment. It only validated his apprehension of a set-up. For how could he be at two
places at the same time (his former work is situated in Sucat, Parañ aque, whereas, his new
assignment is in FTI, Taguig City). It bears emphasizing that the directive for him to continue
discharging his former duties was merely verbal. At this point, petitioner lost his composure.
Exasperated, he refused to receive the memorandum and thus retorted “Seguro na-abnormal na
ang utak mo” as it dawned on him that they were out looking for every means possible to pin
him down.

Nonetheless, he reported to his reassignment in FTI Taguig on April 3, 2009. There he was
served with the memorandum suspending him from work for 30 days effective April 4, 2009 for
alleged “Serious misconduct and willful disobedience by the employee of the lawful orders of his
employer or representative in connection with his work.”

On May 4, 2009, he reported to the office only to be refused entry. Instead, a dismissal letter was
handed to him.

Petitioner Maula filed a complaint against respondent Ximex and its officers for illegal dismissal
and other money claims. LA and NLRC found that petitioner was illegally dismissed. CA reversed
the same.

ISSUE:

Whether or not Maula’s inflammatory language constitutes serious misconduct which warrants
his dismissal.

HELD: NO

Petitioner’s outburst did not constitute serious misconduct

The Court held that respondent manifestly failed to prove that petitioner’s alleged act
constitutes serious misconduct.

Misconduct is improper or wrong conduct; it is the transgression of some established and

definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies
wrongful intent and not mere error in judgment. The misconduct, to be serious within the
meaning of the Labor Code, must be of such a grave and aggravated character and not merely
trivial or unimportant. Thus, for misconduct or improper behavior to be a just cause for
dismissal, (a) it must be serious; (b) it must relate to the performance of the employee’s duties;
and (c) it must show that the employee has become unfit to continue working for the employer.

While this Court held in past decisions that accusatory and inflammatory language used by an
employee to the employer or superior can be a ground for dismissal or termination, the
circumstances peculiar to this case find the previous rulings inapplicable. The admittedly
insulting and unbecoming language uttered by petitioner to the HR Manager on April 3, 2009
should be viewed with reasonable leniency in light of the fact that it was committed under an
emotionally charged state. We agree with the labor arbiter and the NLRC that the on-the-spur-
of-the-moment outburst of petitioner, he having reached his breaking point, was due to what he
perceived as successive retaliatory and orchestrated actions of respondent. Indeed, there was
only lapse in judgment rather than a premeditated defiance of authority.

Further, petitioner’s purported “thug-like” demeanor is not serious in nature. Despite the “grave
embarassment” supposedly caused on Gorospe, she did not even take any separate action
independent of the company. Likewise, respondent did not elaborate exactly how and to what
extent that its “nature of business” and “industrial peace” were damaged by petitioner’s
misconduct. It was not shown in detail that he has become unfit to continue working for the
company and that the continuance of his services is patently inimical to respondent’s interest.

Doctrine of totality of infractions not applicable

Respondent contends that aside from petitioner’s disrespectful remark against Gorospe, he also
committed several prior intentional misconduct, to wit: erroneous packaging of a cargo of
respondent’s client, abandoning work after logging in, failing to teach the rudiments of his job to
the new employees assigned to his group despite orders from his superior, and refusing to
accept the management’s order on the transfer of assignment.

The Court held that respondent cannot invoke the principle of totality of infractions considering
that petitioner’s alleged previous acts of misconduct were not established in accordance with
the requirements of procedural due process. In fact, respondent conceded that he “was not even
censured for any infraction in the past.”

It admitted that “the March 25, 2009 incident that petitioner was referring to could not be
construed as laying the predicate for his dismissal, because he was not penalized for the
misrouting incident when he had adequately and satisfactorily explained his side. Neither was
he penalized for the other memoranda previously or subsequently issued to him.”

Penalty of dismissal too harsh

This Court likewise found the penalty of dismissal too harsh. Not every case of insubordination
or willful disobedience by an employee reasonably deserves the penalty of dismissal because
the penalty to be imposed on an erring employee must be commensurate with the gravity of his
or her offense. Petitioner’s termination from employment is also inappropriate considering that
he had been with respondent company for seven (7) years and he had no previous derogatory
record. It is settled that notwithstanding the existence of a just cause, dismissal should not be
imposed, as it is too severe a penalty, if the employee had been employed for a considerable
length of time in the service of his or her employer, and such employment is untainted by any
kind of dishonesty and irregularity.

Petitioner was not accorded procedural due process

The Court held that the Memorandum dated April 3, 2009 does not contain the following: a
detailed narration of facts and circumstances for petitioner to intelligently prepare his
explanation and defenses, the specific company rule violated and the corresponding penalty
therefor, and a directive giving him at least five (5) calendar days to submit a written
explanation.

No ample opportunity to be heard was also accorded to petitioner. Instead of devising a just
way to get the side of petitioner through testimonial and/or documentary evidence, respondent
took advantage of his “refusal” to file a written explanation. This should not be so. An employer
is duty-bound to exert earnest efforts to arrive at a settlement of its differences with the
employee. While a full adversarial hearing or conference is not required, there must be a fair
and reasonable opportunity for the employee to explain the controversy at hand.

Finally, the termination letter issued by respondent miserably failed to satisfy the requisite
contents of a valid notice of termination. Instead of discussing the facts and circumstances to
support the violation of the alleged company rule that imposed a penalty of dismissal, the letter
merely repeats the self-serving accusations stated in Memorandum dated April 3, 2009.

Preventive suspension imposed was not justified

The Court held that preventive suspension is justified where the employee’s continued
employment poses a serious and imminent threat to the life or property of the employer or of
the employee’s co-workers. Without this kind of threat, preventive suspension is not proper.

Here, it cannot be said that petitioner posed a danger on the lives of the officers or employees of
respondent or their properties. Being one of the Operation Staff, which was a rank and file
position, he could not and would not be able to sabotage the operations of respondent. The
difficulty of finding a logical and reasonable connection between his assigned tasks and the
necessity of his preventive suspension is apparent from the fact that even respondent was not
able to present concrete evidence to support its general allegation.

Rules on Preventive Suspension: Sections 8 and 9 of Rule XXIII, Book V of the Omnibus Rules
Implementing the Labor Code

G.R. No. 191825, October 05, 2016

DEE JAY'S INN AND CAFE AND/OR MELINDA FERRARIS, Petitioners, v. MA. LORINA RAÑ ESES,

RESPONDENT Ma. Lorina Raneses filed against petitioners Dee Jay’s Inn and Café (DJIC) and/or
Melinda Ferraris a complaint for illegal dismissal with money claims and damages. She averred
that petitioner Ferraris terminated her employment on Feb. 5, 2005 upon learning that she filed
a complaint before the SSS office.

Petitioners countered that DJIC incurred a shortage of P400 in its earnings for Feb. 4, 2005.
Ferraris lost her temper and scolded respondent and a fellow employee, and required them to
produce the missing P400. However, respondent and the employee merely walked out and did
not report back to work anymore.

The Labor Arbiter (LA) ruled in favor of petitioners but granted respondent’s claim for 13th
month pay. The National Labor Relations Commission (NLRC) affirmed in toto the LA decisions.

The Court of Appeals (CA) set aside the decision and resolution of the NLRC. It ruled that the
joint testimony of Mercy Bura-ay and Mea Torno in favor of respondent is tainted with bias and
cannot credibly and substantially prove the fact of respondent’s alleged dismissal. However,
neither should the testimony of Eva Gorospe, Ferraris’s lone witness, deserve much probative
weight in proving that respondent abandoned her job. Doubt should be resolved in favor of the
worker, respondent in this case.

Did the CA commit a reversible error?

Ruling: Yes.

The Court of Appeals was correct in its observation that the Labor Arbiter’s quote on the
shifting of the burden of proof in dismissal cases, supposedly from De Paul, could not actually be
found in said case. Yet, it does not necessarily mean that the Labor Arbiter’s ruling on the matter
was fallacious or entirely baseless.

xxx

The Court, in Cañ edo v. Kampilan Security and Detective Agency, Inc., 715 Phil. 625, 635 (2013),
expressly recognized the rule that: In illegal dismissal cases, “while the employer bears the
burden x x x to prove that the termination was for a valid or authorized cause, the employee
must first establish by substantial evidence the fact of dismissal from service.” The burden of
proving the allegations rests upon the party alleging and the proof must be clear, positive and
convincing. Thus, in this case, it is incumbent upon petitioner to prove his claim of dismissal.
(Citations omitted.)

The Court reiterated in Brown Madonna Press, Inc. v. Casas, G.R. No. 200898, June 15, 2015, that
“in illegal dismissal cases, the employer has the burden of proving that the employee’s dismissal
was legal. However, to discharge this burden, the employee must first prove, by substantial
evidence, that he had been dismissed from employment.”

It bears to point out that in the case at bar, the Labor Arbiter, the NLRC, and even the Court of
Appeals, all consistently found that respondent was not able to present substantial evidence of
her dismissal. They all rejected the joint affidavit of Mercy and Mea, submitted by respondent,
for being partial and biased. It appears that Mercy and Mea executed said affidavits to return a
favor as respondent testified for them in their own cases against petitioners. The Court of
Appeals only deviated from the findings of the Labor Arbiter and the NLRC by also disregarding
Eva’s affidavit, submitted by petitioners to corroborate their allegations, for being insufficient to
prove abandonment. The appellate court then applied the equipoise doctrine: with all things
considered equal, all doubts must be resolved in favor of labor, that is, respondent.

The application by the Court of Appeals of the equipoise doctrine and the rule that all doubts
should be resolved in favor of labor was misplaced. Without the joint affidavit of Mercy and Mea,
there only remained the bare allegation of respondent that she was dismissed by petitioners on
Feb. 5, 2005, which hardly constitute substantial evidence of her dismissal. As both the Labor
Arbiter and the NLRC held, since respondent was unable to establish with substantial evidence
her dismissal from employment, the burden of proof did not shift to petitioners to prove that
her dismissal was for just or authorized cause.

As pointed out by petitioners, they never raised abandonment as a defense as there was no
dismissal in the first place. Petitioners did not argue that respondent abandoned her work
which justified her dismissal from employment. Petitioners merely alleged the fact that
respondent, after being scolded on Feb. 4, 2005, no longer returned to work beginning February
5, 2005, which was corroborated by one of petitioners’ employees, Eva, in her affidavit.
(Leonardo De-Castro, J., Dee Jay’s Inn and Café, et.al. v. Ma. Lorina Rañ eses, G.R. No. 191825, Oct.
5, 2016).