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612 Phil. 1230

SECOND DIVISION

[ G.R. No. 179293, August 14, 2009 ]

EDEN LLAMAS, PETITIONER, VS. OCEAN GATEWAY MARITIME AND MANAGEMENT, INC. RESPONDENT.

D E C I S I O N

CARPIO MORALES, J.:

Ocean Gateway Maritime and Management, Inc. (respondent or the company) hired Eden Llamas (petitioner) on August 1, 2001 as an accounting manager.

On February 9, 2002, Mary Anne T. Macaraig (Mary Anne), respondent's Chief Executive Officer, called petitioner's attention to her failure, despite repeated demands, to accomplish the long overdue monthly and annual company financial reports and to remit the company's contributions to the Social Security System (SSS) and PhilHealth for November and December 2001.

Subsequently or on February 20, 2002, Mary Anne again instructed petitioner to remit on that day or until the following day the company's contributions to the SSS and PhilHealth for January 2002. By petitioner's claim, she failed to comply with the instruction as money for the purpose was not, as of February 20, 2002, credited to the company's account at the bank. The following day, February 21, 2002, petitioner did not report for work as she was allegedly suffering from hypertension, hence, she was again unable to remit the contributions.

On February 26, 2002 Mary Anne sent a memorandum to petitioner charging her with gross and habitual neglect of duty and/or misconduct or willful disobedience and insubordination, detailing therein the bases of the charges, and requiring her to submit a written explanation why she should not be penalized or dismissed from employment.

Complying with the show cause order, petitioner claimed that the delay was due to the fact that she was overloaded with work and undermanned. Her explanation reads:

I was able to submit SSS/PhilHealth reports and payment from July to October, 2001 because I was assisted by an on-the-job trainee who stayed only up to November.

In spite of my repeated request to give me some help because of my heavy load nothing has been provided. I have to stay working for 10 to 12 hours a day and sometimes for more than 12 hours without overtime pay just to lessen my load and meet the deadlines.

In our February 9th meeting, Ms. Abigail Carranza was instructed to help me in order to finish the needed report for SSS/Philhealth for November up to January and she was able to finish on February 14th after she unloaded herself of her regular duties and concentrated on the SSS/Philhealth reports. Her regular work was divided between Ms. Sonia Gonzales & Mr. Efren Robles.

On February 20th at about 12:10 P.M. Ms. Macaraig gave me, in the presence of Capt. Picardal, the finished work of Ms. Carranza and instructed me to pay the SSS on that day or the next day. I called up BPI to check if the remittance from MMM has already been credited to our bank account but I was informed by BPI Forex Dept. that the money is not yet credited. The payment was made the following day by Ms. Macaraig and Ms. Carranza since I was not able to report because I got sick.

With the above explanation, the penalties imposed therefore, on non-remittance of the contribution to SSS and PhilHealth on time should not be blamed on me.

x x x x

I believe I did something good for the office when our declaration of gross income submitted to City Hall for the renewal of our municipal license was lower than our actual gross income for which the office paid a lower amount. City Hall is only after the gross income which amount I got from our Agency Fee received during the year.

If only I will be provided with some assistance that I always request, who will do some of my additional tasks especially the vouchers & check preparation, reports for SSS/Philhealth, POEA & BIR, and filing, I could perform all the tasks given to me by the Management and submit all the reports on time;

x x x x[1] (Underscoring supplied)

On account of the delay in the remittance of those contributions, respondent was penalized in the amount of P18,580.41 which it charged to petitioner via salary deductions.

Sometime in July 2002, Mary Anne instructed petitioner to encash a check and remit the proceeds thereof to the architect who renovated respondent's new office in Makati. Petitioner instead suggested that she would ask one of the cadets to encash the check because she was scheduled to go to the Bureau of Internal Revenue, and reminded Mary Anne that it was very risky to pay in cash. Insisting that she was the boss, Mary Anne told petitioner to follow her orders. Petitioner complied. Getting wind of the incident, respondent's president asked her to give a statement of facts thereof which she did.

As respondent found petitioner's explanation unsatisfactory, it sent her a notice of termination from employment on July 31, 2002,[2] anchored on gross and habitual neglect of duty and/or serious misconduct or willful disobedience/insubordination, drawing, petitioner to file on August 5, 2002 before the National Labor Relations Commission (NLRC) a Complaint[3] against respondent and Mary Anne for illegal dismissal, damages and attorney's fees.

She later amended her complaint to include as cause of action non-payment of overtime pay.[4] Still, in her Position Paper,[5] she included illegal deductions as additional cause of action.

Petitioner, claiming that she was fired because of the heated discussion between her and Mary Anne, maintained that her delay in the remittance of the company's SSS/PhilHealth contributions was occasioned by the circumstances she had spelled out.

Upon the other hand, respondent maintained its justification of petitioner's dismissal, highlighting her failure to accomplish the company's monthly and annual financial reports for 2001 reflecting its gross income which is determinative of the amount to be paid to secure government licenses and permits.

Respecting petitioner's claim for overtime pay, respondent contended that she, being a managerial employee and/or a member of the managerial staff, is not entitled thereto.

By Decision[6] of April 15, 2003, the Labor Arbiter found petitioner's dismissal to have been for a just cause and with due process. However, he ordered respondent to pay petitioner's "proportionate 13th month pay for the year 2000 [sic] and final assistance" in the amount of Thirty Three Thousand Two Hundred Fifty Pesos (P33,250).

On appeal, the NLRC, finding petitioner to have been illegally dismissed, set aside the Labor Arbiter's decision and awarded backwages, separation pay, and 13th month pay. It held that petitioner's dismissal was due to the heated argument between her and Mary Anne and that she was already penalized when she was required to pay via salary deduction the above-stated fine meted the company.

On petition for certiorari, the Court of Appeals nullified the NLRC decision and reinstated the Labor Arbiter's decision.[7] The appellate court ruled that petitioner neglected her duties not just once, but four times. Furthermore, it held that, following Amadeo Fishing Corporation v. Nierra,[8] as petitioner occupied a position of trust and confidence, the company could not be compelled to continuously engage her services which is detrimental to its interests. Petitioner's motion for reconsideration having been denied by Resolution[9] dated August 17, 2007, she filed the present petition.[10]

The petition fails.

Under Article 282 (b) of the Labor Code, negligence must be both gross and habitual to justify the dismissal of an employee. Gross negligence is characterized by want of even slight care, acting or omitting to act in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a conscious indifference to consequences insofar as other persons may be affected.[11]

In the present case, petitioner, as respondent's Accounting Manager, failed to discharge her important duty of remitting SSS/PhilHealth contributions not once but quadruple times, resulting in respondent's incurring of penalties totaling P18,580.41, not to mention the employees/members' contributions being unupdated.

Her claim of being overworked and undermanned does not persuade. As noted by respondent, the company had been in operation for less than three (3) months at the time the negligence and delays were committed, with only a few transactions and only with one principal, Malaysian Merchant Marine Bhd., hence, its financial and accounting books should not have been difficult to prepare. Moreover, as claimed by respondent which was not refuted by petitioner, she failed to remit the contributions as early as November 2001 during which time, however, on-the-job trainees were still with the company, hence, her claim of being undermanned behind such failure does not lie.

As to the delay in the remittance of SSS/PhilHealth contributions for January 2002, which petitioner claims to be due to the fact that the money intended for payment was not yet credited as of February 20, 2002 to respondent's bank account, as well as to her absence the following day or on February 21, 2002 due to hypertension, the Court is not persuaded, given that at that time, she had already been in delay in the performance of her duties.

On petitioner's declaration that "I believe that I did something good for our office when our declaration of gross income submitted to City Hall for the renewal of our municipal license was lower than our actual gross income for which the office had paid a lower amount," the Court finds the same as betraying a streak of dishonesty in her. It partakes of serious misconduct.

x x x Misconduct has been defined as 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 of judgment. The misconduct to be serious must be of such grave and aggravated character and not merely trivial and unimportant. Such misconduct, however serious, must nevertheless be in connection with the employee's work to constitute just cause for his separation. Thus, for misconduct or improper behavior to be a just cause for dismissal, (a) it must be serious; (b) must relate to the performance of the employee's duties; and (c) must show that the employee has become unfit to continue working for the employer. Indeed, an employer may not be compelled to continue to employ such person whose continuance in the service would be patently inimical to his employer's interest.[12] (Emphasis supplied)

For her act of understating the company's profits or financial position was willful and not a mere error of judgment, committed as it was in order to "save" costs, which to her warped mind, was supposed to benefit respondent. It was not merely a violation of company policy, but of the law itself, and put respondent at risk of being made legally liable. Verily, it warrants her dismissal from employment as respondent's Accounting Manager, for as correctly ruled by the appellate court, an employer cannot be compelled to retain in its employ someone whose services is inimical to its interests.

As to whether due process was accorded petitioner, the Court rules in the affirmative. Far from being arbitrary, the termination of her services was effected after she was afforded the opportunity to, as she did, submit her explanation on why she should not be disciplined or dismissed, which explanation, it bears reiteration, was, however, found unsatisfactory.

WHEREFORE, the May 25, 2007 Decision of the Court of Appeals reinstating the April 15, 2003 decision of the Labor Arbiter is AFFIRMED.

SO ORDERED.

Carpio,* Brion, Del Castillo, and Abad, JJ., concur.




* Additional member per Special Order No. 671 in lieu of Senior Associate Justice Leonardo A. Quisumbing who is on official leave.

[1] NLRC records, pp. 29-30.

[2] Id. at 31-35.

[3] Id. at 2.

[4] Id. at 8.

[5] Id. at 36-48.

[6] Id. at 171-180.

[7] Decision of May 25, 2007, penned by Associate Justice Fernanda Lampas Peralta, with the concurrence of Associate Justices Edgardo P. Cruz and Normandie B. Pizarro. CA rollo, pp. 155-166.

[8] G.R. No. 163099, October 4, 2005, 472 SCRA 13.

[9] Annex "B" of Petition, rollo, p. 38. Penned by Associate Justice Fernanda Lampas Peralta, with the concurrence of Associate Justices Edgardo P. Cruz and Normandie B. Pizarro.

[10] Rollo, pp. 9-26.

[11] Tres Reyes v. Maxim's Tea House, et al., G.R. No. 140853, February 27, 2003, 398 SCRA 288, 299.

[12] Fujitsu Computer Products v. Court of Appeals, G.R. No. 158232. March 31, 2005, 454 SCRA 737, 740.

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