LEGAL NOTE 0029: DISMISSAL OF A PROBATIONARY EMPLOYEE. HOW BACKWAGES ARE COMPUTED. AND MORE ISSUES.

 CASE  2011-0047: ROBINSONS GALLERIA/ ROBINSONS SUPERMARKET CORPORATION AND/OR JESS MANUEL VS. IRENE R. RANCHEZ (G.R. NO. 177937, 19 JANUARY 2011, NACHURA, J.) SUBJECTS: PROBATIONARY EMPLOYMENT; CONSTRUCTIVE DISMISSAL; BACKWAGES. (BRIEF TITLE: ROBINSONS GALLERIA VS. RACHEZ)

CASE DIGEST:

THE FACTS;

SANCHEZ WAS A PROBATIONARY EMPLOYEE. SHE REPORTED LOSS OF P20K TO MANAGEMENT. MANAGEMENT REPORTED MATTER TO POLICE. SANCHEZ WAS JAILED FOR TWO WEEKS AND CHARGED FOR QUALIFIED THEFT. SHE FILED CASE FOR ILLEGAL DISMISSAL. LABOR ARBITER DISMISSED COMPLAINT BUT ORDERED REINSTATEMENT. NLRC RULED THAT THERE WAS CONSTRUCTIVE DISMISSAL AND ORDERED REINSTATEMENT AND BACKWAGES. CA AFFIRMED BUT RULED THAT SEPARATION PAY WOULD BE PAID IN LIEU OF REINSTATEMENT.

THE ISSUE:

WHETHER THERE WAS ILLEGAL DIMISSAL. HOW MUCH BACKWAGES SHOULD BE PAID.

THE RULING:

YES. SANCHEZ WAS NOT AFFORDED DUE PROCESS. AS PROBATIONERY EMPLOYEE, SHE COULD BE DISMISSED FOR JUST CAUSE, AUTHORIZED CAUSE OF FOR FAILURE TO MEET THE STANDARDS SET. IF IT WAS DUE TO JUST CAUSE SHE SHOULD HAVE BEEN GIVEN THE OPPORTUNITY TO PRESENT HER SIDE. POLICE INVESTIGATION CANNOT BE A SUBSTITUTE. BACKWAGES SHALL BE COMPUTED FROM THE DATE SHE WAS ILLEGALLY DISMISSED TO THE DATE HER PROBATIONARY EMPLOYMENT ENDS.

 

OTHER LEGAL ISSUES:

 

WHEN IS THERE PROBATIONARY EMPLOYMENT?

          There is probationary employment when 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.

 

DOES A PROBATIONARY EMPLOYEE ENJOY SECURITY OF TENURE?

YES.

          A probationary employee, like a regular employee, enjoys Security of tenure.

 

WHAT ARE THE GROUNDS FOR TERMINATING A PROBATIONARY  EMPLOYEE.

THERE ARE THREE GROUNDS WHILE IN THE CASE OF REGULAR EMPLOYEES, THERE ARE ONLY TWO GROUNDS.

 However, in cases of probationary employment, aside from just or authorized causes of termination, an additional ground is provided under Article 281 of the Labor Code, i.e., the probationary employee may also be terminated for failure to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of the engagement.  Thus, the services of an employee who has been engaged on probationary basis may be terminated for any of the following:  (1) a just or (2) an authorized cause; and  (3) when he fails to qualify as a regular employee in accordance with reasonable standards prescribed by the employer. 

 

WHAT IS THE DUE PROCESS REQUIRED IN TERMINATING AN EMPLOYEE?  

          Article 277(b) of the Labor Code mandates that subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal, except for just and authorized cause and without prejudice to the requirement of notice under Article 283 of the same Code, the employer shall furnish the worker, whose employment is sought to be terminated, a written notice containing a statement  of the causes of termination, and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of a representative if he so desires, in accordance with company rules and regulations pursuant to the guidelines set by the Department of Labor and Employment.

 

IN THE INSTANT CASE WAS THERE DUE PROCESS FOLLOWED?

NO. 

          In the instant case, based on the facts on record, petitioners failed to accord respondent substantive and procedural due process. The haphazard manner in the investigation of the missing cash, which was left to the determination of the police authorities and the Prosecutor’s Office, left respondent with no choice but to cry foul.  Administrative investigation was not conducted by petitioner Supermarket.  On the same day that the missing money was reported by respondent to her immediate superior, the company already pre-judged her guilt without proper investigation, and instantly reported her to the police as the suspected thief, which resulted in her languishing in jail for two weeks.  

 

IS DUE PROCESS REQUIREMENTS MANDATORY? BUT THE POLICE INVESTIGATOR HAS RULED THAT THERE WAS PROBABLE CAUSE THAT QUALIFIED THEFT WAS COMMITTED. 

          As correctly pointed out by the NLRC, the due process requirements under the Labor Code are mandatory and may not be supplanted by police investigation or court proceedings. The criminal aspect of the case is considered independent of the administrative aspect. Thus, employers should not rely solely on the findings of the Prosecutor’s Office. They are mandated to conduct their own separate investigation, and to accord the employee every opportunity to defend himself.  Furthermore, respondent was not represented by counsel when she was strip-searched inside the company premises or during the police investigation, and in the preliminary investigation before the Prosecutor’s Office.

 

HOW WAS RESPONDENT DISMISSED?

SHE WAS CONSTRUCTIVELY DISMISSED. 

          Respondent was constructively dismissed by petitioner Supermarket effective October 30, 1997. It was unreasonable for petitioners to charge her with abandonment for not reporting for work upon her release in jail. It would be the height of callousness to expect her to return to work after suffering in jail for two weeks. Work had been rendered unreasonable, unlikely, and definitely impossible, considering the treatment that was accorded respondent by petitioners.

 

WHAT IS THE BASIS FOR SEPARATION PAY IN LIEU OF REINSTATEMENT? 

          As to respondent’s monetary claims, Article 279 of the Labor Code provides that an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges, to full backwages, inclusive of allowances, and to other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement. However, due to the strained relations of the parties, the payment of separation pay has been considered an acceptable alternative to reinstatement, when the latter option is no longer desirable or viable.  On the one hand, such payment liberates the employee from what could be a highly oppressive work environment.  On the other, the payment releases the employer from the grossly unpalatable obligation of maintaining in its employ a worker it could no longer trust.

           Thus, as an illegally or constructively dismissed employee, respondent is entitled to: (1) either reinstatement, if viable, or separation pay, if reinstatement is no longer viable; and (2) backwages. These two reliefs are separate and distinct from each other and are awarded conjunctively.

 In this case, since respondent was a probationary employee at the time she was constructively dismissed by petitioners, she is entitled to separation pay and backwages. Reinstatement of respondent is no longer viable considering the circumstances.

 

HOW MUCH BACKWAGES BE AWARDED TO RESPONDENT?

FROM THE TIME SHE WAS DISMISSED TO THE TIME HER PROBATIONARY EMPLOYMENT ENDED.

          However, the backwages that should be awarded to respondent shall be reckoned from the time of her constructive dismissal until the date of the termination of her employment, i.e., from October 30, 1997 to March 14, 1998.  The computation should not cover the entire period from the time her compensation was withheld up to the time of her actual reinstatement. This is because respondent was a probationary employee, and the lapse of her probationary employment without her appointment as a regular employee of petitioner Supermarket effectively severed the employer-employee relationship between the parties. 

          In all cases involving employees engaged on probationary basis, the employer shall make known to its employees the standards under which they will qualify as regular employees at the time of their engagement. Where no standards are made known to an employee at the time, he shall be deemed a regular employee, unless the job is self-descriptive, like maid, cook, driver, or messenger.  However, the constitutional policy of providing full protection to labor is not intended to oppress or destroy management. Naturally, petitioner Supermarket cannot be expected to retain respondent as a regular employee considering that she lost P20,299.00  while acting as a cashier during the probationary period. The rules on probationary employment should not be used to exculpate a probationary 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 lieu of Associate Justice Diosdado M. Peralta per Raffle dated July 6, 2009.

              Penned by Associate Justice Myrna Dimaranan-Vidal, with Associate Justices Bienvenido Reyes and Fernanda Lampas Peralta, concurring; rollo, pp. 67-75.

              Id. at  77-78.

              Labor Arbiter’s decision; CA rollo, p. 50.

              Id. at 47.

              Id. at 48.

              Labor Arbiter’s decision, id.; NLRC decision, id. at 67; CA Decision, rollo, p. 68.

              Labor Arbiter’s decision, CA rollo, p. 48; NLRC decision, CA rollo, p. 70; CA Decision, rollo, p. 68.

              CA Decision; rollo, p. 69.

              CA Decision, id. at 68; NLRC decision, CA rollo, p. 67.

            Penned by Labor Arbiter Melquiades Sol D. del Rosario; CA rollo, pp. 47-53.

            Id. at 52-53.

            Labor Arbiter’s decision; id. at 51-52.

            Penned by Commissioner Vicente S.E. Veloso, with Presiding Commissioner Roy V. Señeres and Commissioner Romeo L. Go, concurring; id. at 65-72.

            Id. at 71.

            Id. at 69.

            Id. at 70.

            Penned by Commissioner Proculo T. Sarmen, with the concurrence of OIC, Office of the Chairman Raul T. Aquino and Commissioner Romeo L. Go; id. at 86-88.

            Rollo, p. 74.

            CA Decision, id. at 68-69; NLRC decision, CA rollo, p. 67.

            CA Decision, rollo, p. 68; NLRC decision, CA rollo, p. 67.

            Omnibus Rules Implementing the Labor Code, Book VI, Rule I, Sec. 6.

            Id.

            Omnibus Rules Implementing the Labor Code, Book VI, Rule I, Sec. 6(c).

            Coca-Cola Bottlers Phils. Inc. v. Daniel, 499 Phil. 491, 511 (2005).   

            Siemens v. Domingo, G.R. No. 150488, July 28, 2008, 560 SCRA 86, 100.

 

            Omnibus Rules Implementing the Labor Code, Book VI, Rule I, Sec. 6(d).

            Capili v. National Labor Relations Commission, 337 Phil. 210, 216 (1997).

            Aberdeen Court, Inc. v. Agustin, Jr., 495 Phil. 706, 716-717 (2005).

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