Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
_______________
* EN BANC.
683
684
685
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686
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687
688
Civil Law; Bad Faith; It is a well-settled rule that bad faith
cannot be presumed and he who alleges bad faith has the onus of
proving it.—A judicious perusal of the records show that other
than her unfounded assertions on the matter, there is no evidence
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689
the NLRC ruling of illegal dismissal had basis in fact and in law.
—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 CA’s finding that the NLRC ruling of
illegal dismissal had basis in fact and in law.
Same; Probationary Employees; View that while the
respondent might have been hired as a probationary employee, the
petitioner’s 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.—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
690
691
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PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the
Decision2 dated December 10, 2009 and Resolution3 dated
June 9, 2010 of the Court of Appeals (CA) in CA-G.R. SP
No.
_______________
1 Rollo (G.R. No. 192571), pp. 14-58.
2 Id., at pp. 1040-1054. Penned by Associate Justice Isaias Dicdican,
with Associate Justices Remedios A. Salazar-Fernando and Romeo F.
Barza, concurring.
3 Id., at pp. 1139-1140.
692
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4 Id., at p. 74.
5 Id., at pp. 75-76.
6 Id., at pp. 51-52. Based on Abbott’s organizational structure, the
Regulatory Affairs Manager was under the umbrella of Hospira ALSU, a
sub-department in Abbott’s 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 pp. 165-168. Abbott sent Alcaraz an initial offer sheet on
December 1, 2004. The compensation contained therein was re-
693
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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.
_______________
negotiated and thus, the increased offer as per the offer sheet dated December
7, 2004.
8 Id., at pp. 167-168.
9 Id., at pp. 127, 169-172.
10 Id., at p. 174.
694
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.
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Welcome to Abbott!
Very truly yours,
Sgd.
EDWIN D. FEIST
General Manager
CONFORME:
Sgd.
PEARLIE ANN FERRER-
ALCARAZ
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_______________
11 Id., at pp. 127-128.
12 Id., at pp. 1042-1043.
696
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13 Id.
14 Id., at p. 1044.
15 Id.
16 Id.
17 Id., at pp. 1044-1045.
18 Id., at p. 1045.
697
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19 Id.
20 Id., at p. 1046.
21 Id., at p. 1047.
22 Id., at pp. 19-21, 78, and 80-81.
23 Id., at p. 1047.
24 Id., at p. 255. See Labor Arbiter (LA) Decision dated March 30,
2006.
698
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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 pp. 261-262.
28 Id., at pp. 263-267.
29 Id., at pp. 255-274. Penned by Labor Arbiter Jovencio Ll. Mayor, Jr.
30 Id., at p. 269.
699
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31 Id., at p. 270.
32 Id., at pp. 271-272.
33 Id., at p. 273.
34 Id., at pp. 356-378. Penned by Commissioner Romeo L. Go, with
Commissioners Benedicto Ernesto R. Bitonio, Jr. (on leave) and Perlita B. Velasco,
concurring.
700
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 attorney’s fees of
10% of the total award.
6. All other claims are dismissed for lack of merit.
SO ORDERED.35
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35 Id., at pp. 377-378.
36 Id., at p. 367.
37 Id., at p. 368.
38 Id., at p. 369.
39 Id., at pp. 370-373.
40 Id., at pp. 413-416. Penned by Commissioner Romeo L. Go, with
Presiding Commissioner Gerardo C. Nograles and Commissioner Perlita
B. Velasco, concurring.
701
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41 Id., at pp. 417-450.
42 Id., at p. 1403.
43 Id.
44 Id., at pp. 1040-1054.
45 Id., at p. 1052.
46 Id.
702
found that Abbott was unable to prove that there was any
reasonable ground to terminate Alcaraz’s employment.47
Abbott moved for the reconsideration of the aforementioned
ruling which was, however, denied by the CA in a
Resolution48 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
CA’s 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 LA’s order
granting Alcaraz’s 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
LA’s order would render its motion for reconsideration
moot and academic.50
Meanwhile, petitioners’ motion for reconsideration of the
CA’s 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
CA’s De-
_______________
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47 Id., at p. 1053.
48 Id., at pp. 1139-1140.
49 Id., at p. 1218.
50 Id.
51 Id., at p. 1219.
52 Rollo (G.R. No. 193976), p. 30.
703
_______________
53 Rollo (G.R. No. 192571), pp. 1223-1228.
54 Id., at p. 1224.
55 433 Phil. 490, 501-502; 384 SCRA 139, 148 (2002).
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704
_______________
56 Id., at pp. 501-502; p. 148. (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; 460
SCRA 428, 440-441 (2005).
705
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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.
x x x x
706
_______________
59 Robinsons Galleria/Robinsons Supermarket Corporation v. Ranchez,
G.R. No. 177937, January 19, 2011, 640 SCRA 135, 142.
60 Id.
707
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61 Id., at p. 145.
62 495 Phil. 706, 716-717; 456 SCRA 32, 43 (2005).
708
_______________
63 Rollo (G.R. No. 192571), p. 1201.
710
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64 Id., at pp. 367-368, 370.
711
C. Probationary employment;
termination procedure.
A different procedure is applied when terminating a
probationary employee; the usual two-notice rule does not
govern.65
_______________
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.—
x x x x
(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
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712
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_______________
circumstances, grounds have been established to justify his
termination.
66 Rollo, pp. 78-81.
67 Id., at p. 1047.
68 170 S.W.3d 354 (Ky. 2005).
713
_______________
69 Rollo (G.R. No. 192571), p. 1052.
70 Id., at p. 1043.
714
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71 G.R. No. 158693, November 17, 2004, 442 SCRA 573.
715
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72 Id., at p. 616.
73 Id., at p. 620.
74 494 Phil. 114, 119-121; 454 SCRA 119, 125 (2005).
75 Id., at p. 121; p. 126.
76 Id., at p. 122; p. 127.
77 Supra note 71, at p. 605.
716
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78 Id., at p. 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.
717
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80 Carag v. NLRC, 548 Phil. 581, 605; 520 SCRA 28, 53 (2007), citing
McLeod v. NLRC, 541 Phil. 214, 242; 512 SCRA 222, 249 (2007).
81 Rollo (G.R. No. 192571), pp. 262, 1046.
718
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 Court’s
decision making in light of the various modes of review and
essentials that the Rules of Court require. The second and
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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
721
_______________
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 appreci-
722
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ated 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; 295 SCRA 494 (1998).
3 G.R. No. 183329, August 27, 2009, 597 SCRA 334.
723
_______________
4 Id., at pp. 342-343.
724
_______________
5 Rejoinder to Reply, supra, at Note 1.
725
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Article 281 of the Labor Code, as amended, provides:
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728
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730
_______________
7 Rollo, p. 174.
731
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8Id. at p. 77.
733
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9 See Article 281 of the Labor Code, as amended.
734
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I can only agree with one aspect of the ponencia — its
admission that Abbott’s internal procedures were not
applied to the respondent. I cannot dispute and I fully
agree with the following passages of the ponencia:
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737
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10 Decision, at pp. 16-17.
738
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11 Pages 4-5 of the ponencia.
12 Ibid.; Rollo, pp. 260 and 271.
739
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13 Rollo, pp. 1044-1045.
14 Aliling v. Feliciano, G.R. No. 185829, April 25, 2012, 671 SCRA 186,
205.
15 Ibid.
740
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
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16 Rollo, p. 78.
17 Aberdeen Court, Inc. v. Agustin, Jr., 495 Phil. 706, 712; 456 SCRA
32, 38 (2005).
18 Ibid.
741
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742
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744
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20 Dolores T. Esguerra v. Valle Verde Country Club, Inc., et al., G.R.
No. 173012, June 13, 2012, 672 SCRA 177.
21 Ibid.
22 G.R. No. 152048, April 7, 2009, 584 SCRA 110, 127.
745
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23 Rollo, p. 78.
746
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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.
747
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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.
748
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28 Rollo, pp. 375-376.
749
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29 Id., at pp. 1046-1047.
750
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