680 Phil. 488
WHEREFORE, the instant appeal of Minerva M.P. Pacheo is hereby GRANTED. The Bureau of Internal Revenue Revenue Travel Assignment Order No. 25-2002 dated May 7, 2002, on the reassignment of Pacheo to the Legal Division Revenue Region No. 4 San Fernanado, Pampanga, is hereby declared NOT VALID. ACCORDINGLY, Pacheo should now be recalled to her original station. This Commission, however rules and so holds that the withholding by the BIR of Pacheo's salary for the period she did not report to work is justified.
The CSCRO No. III is directed to monitor the implementation of this Resolution.
On the second issue, this Commission finds merit in appellant's contention that her reassignment in not valid.
Of pertinent application thereto is Rule III, Section 6 of CSC Memorandum Circular No. 40, series of 1998, dated December 14, 1998, which provides:Section 6. Other Personnel Movements. The following personnel movements which will not require issuance of an appointment shall nevertheless require an office order by duly authorized official.
a. Reassignment - Movement of an employee from one organizational unit to another in the same department or agency which does not involve reduction in rank, status or salary. If reassignment is done without consent of the employee being reassigned it shall be allowed for a maximum period of one year. Reassignment is presumed to be regular and made in the interest of public service unless proven otherwise or it constitutes constructive dismissal.
No assignment shall be undertaken if done indiscriminately or whimsically because the law is not intended as a convenient shield for the appointing/ disciplining authority to harass or oppress a subordinate on the pretext of advancing and promoting public interest.
Reassignment of small salaried employee is not permissible if it causes significant financial dislocation.'
Although reassignment is a management prerogative, the same must be done in the exigency of the service without diminution in rank, status and salary on the part of the officer or employee being temporarily reassigned. Reassignment of `small salaried' employees, however is not allowed if it will cause significant financial dislocation to the employee reassigned. Otherwise the Commission will have to intervene.
The primary purpose of emphasizing `small salaried employees' in the foregoing rule is to protect the `rank and file' employees from possible abuse by the management in the guise of transfer/reassignment. The Supreme Court in Alzate v. Mabutas, (51 O.G. 2452) ruled:` x x x [T]he protection against invalid transfer is especially needed by lower ranking employees. The Court emphasized this need when it ruled that officials in the unclassified service, presidential appointees, men in the government set up occupy positions in the higher echelon should be entitled to security of tenure, unquestionable a lesser sol[ci]itude cannot be meant for the little men, that great mass of Common underprivileged employees-thousand there are of them in the lower bracket, who generally are without connections and who pin their hopes of advancement on the merit system instituted by our civil service law.'
In other words, in order to be embraced in the term `small-salaried employees', the latter must belong to the `rank and file'; and, his/her salary would be significantly reduced by virtue of the transfer/reassignment. `Rank and file' was categorized as those occupying the position of Division Chief and below, pursuant to CSC Resolution No. 1, series of 1991, dated January 28, 1991.
The facts established on record show that Pacheo belongs to the rank and file receiving an average monthly salary of Twenty Thousand Pesos (P20,000.00) under the salary standardization law and a monthly take home pay of Fourteen Thousand Pesos (P14,000.00). She has to spend around Four Thousand Pesos (P4,000.00) a month for her transportation expenses as a consequence of her reassignment, roughly twenty eight percent (28%) of her monthly take home pay. Clearly, Pacheo's salary shall be significantly reduced as a result of her reassignment.
In ANORE, Ma. Theresa F., this Commission ruled:`Anore, a lowly salaried employee, was reassigned to an isolated island 15 kilometers away from her original place of assignment. She has to travel by boat with only one trip a day to report to her new place of assignment in an office without any facilities, except its bare structure. Worst, the municipality did not provide her with transportation allowance. She was forced to be separated from her family, look for a boarding house where she can stay while in the island and spend for her board and lodging. The circumstances surrounding Anore's reassignment is exactly the kind of reassignment that is being frowned upon by law.'
This Commission, however, rules and so holds that the withholding by the BIR of her salaries is justified as she is not entitled thereto since she is deemed not to have performed any actual work in the government on the principle of no work no pay.
Accordingly, Pacheo should now be reinstated to her original station without any right to claim back salary as she did not report to work either at her new place of assignment or at her original station. [Emphases in the original]
WHEREFORE, the petition is GRANTED. Resolution nos. 051697 and 060397 dated November 21, 2005 and March 7, 2006, respectively, of the Civil Service Commission are REVERSED and SET ASIDE. A new judgment is hereby entered finding petitioner to have been constructively dismissed and ordering her immediate reinstatement with full backwages and benefits.
While this Court agrees that petitioner's reassignment was not valid considering that a diminution in salary is enough to invalidate such reassignment, We cannot agree that the latter has not been constructively dismissed as a result thereof.
It is well to remember that constructive dismissal does not always involve forthright dismissal or diminution in rank, compensation, benefits and privileges. For an act of clear discrimination, insensibility, or disdain by an employer may become so unbearable on the part of the employee that it could foreclose any choice by him except to forgo his continued employment.
The management prerogative to transfer personnel must be exercised without grave abuse of discretion and putting to mind the basic elements of justice and fair play. The employer must be able to show that the transfer is not unreasonable, inconvenient, or prejudicial to the employee.
In this case, petitioner's reassignment will result in the reduction of her salary, not to mention the physical burden that she would suffer in waking up early in the morning to travel daily from Quezon City to San Fernando, Pampanga and in coming home late at night.
Clearly, the insensibility of the employer is deducible from the foregoing circumstances and petitioner may have no other choice but to forego her continued employment.
Moreover, it would be inconsistent to hold that the reassignment was not valid due to the significant reduction in petitioner's salary and then rule that there is no constructive dismissal just because said reduction in salary will not render petitioner penniless if she will report to her new place of assignment. It must be noted that there is constructive dismissal when the reassignment of an employee involves a diminution in pay.
Having determined that petitioner has been constructively dismissed as a result of her reassignment, We shall resolve whether or not she is entitled to backwages.
In denying petitioner's claim for backwages, the CSC held:This Commission, however, rules and so holds that the withholding by the BIR of her salaries is justified as she is not entitled thereto since she is deemed not to have performed any actual work in the government on the principle of no work no pay.
Accordingly, Pacheo should now be reinstated to her original station without any right to claim back salary as she did not report for work either at her new place of assignment or at her original station."
Pacheo, while belonging to the rank-and-file employees, is holding a responsible position as an Assistant Division Chief, who could not just abandon her duties merely because she protested her re-assignment and filed an appeal afterwards.
We do not agree.
If there is no work performed by the employee there can be no wage or pay, unless of course the laborer was able, willing and ready to work but was illegally locked out, dismissed or suspended. The "No work, no pay" principle contemplates a "no work" situation where the employees voluntarily absent themselves.
In this case, petitioner was forced to forego her continued employment and did not just abandon her duties. In fact, she lost no time in protesting her reassignment as a form of constructive dismissal. It is settled that the filing of a complaint for illegal dismissal is inconsistent with a charge of abandonment. The filing of the complaint is proof enough of his desire to return to work, thus negating any suggestion of abandonment.
Neither do we agree with the OSG when it opined that:No one in the Civil Service should be allowed to decide on whether she is going to accept or not any work dictated upon by the exigency of the service. One should consider that public office is a public trust and that the act of respondent CIR enjoys the presumption of regularity. To uphold the failure of respondent to heed the RTAO would result in chaos. Every employee would put his or her vested interest or personal opinion over and above the smooth functioning of the bureaucracy.
Security of tenure is a right of paramount value as recognized and guaranteed under Sec. 3, Art. XIII of the 1987 Constitution.The State shall afford full protection to labor, xxx and promote full employment and equality of employment opportunities for all. It shall guarantee the rights of all workers to xxx security of tenure xxx
Such constitutional right should not be denied on mere speculation of any similar unclear and nebulous basis.
In Garcia, et al. v. Lejano, et al., the Supreme Court rejected the OSG's opinion that when the transfer is motivated solely by the interest of the service of such act cannot be considered violative of the Constitution, thus:"We do not agree to this view. While temporary transfers or assignments may be made of the personnel of a bureau or department without first obtaining the consent of the employee concerned within the scope of Section 79 (D) of the Administrative Code which party provides that `The Department Head also may, from time to time, in the interest of the service, change the distribution among the several Bureaus and offices of his Department of the employees or subordinates authorized by law,' such cannot be undertaken when the transfer of the employee is with a view to his removal. Such cannot be done without the consent of the employee. And if the transfer is resorted to as a scheme to lure the employee away from his permanent position, such attitude is improper as it would in effect result in a circumvention of the prohibition which safeguards the tenure of office of those who are in the civil service. It is not without reason that this Court made the following observation:
To permit circumvention of the constitutional prohibition in question by allowing removal from office without lawful cause, in the form or guise of transfers from one office to another, or from one province to another, without the consent of the transferee, would blast the hopes of these young civil service officials and career men and women, destroy their security and tenure of office and make for a subservient, discontented and inefficient civil service force that sways with every political wind that blows and plays up to whatever political party is in the saddle. That would be far from what the framers of our Constitution contemplated and desired. Neither would that be our concept of a free and efficient Government force, possessed of self-respect and reasonable ambition."
Clearly, the principle of "no work, no pay" does not apply in this case. As held in Neeland v. Villanueva, Jr:"We also cannot deny back salaries and other economic benefits on the ground that respondent Clerk of Court did not work. For the principle of "no work, no pay" does not apply when the employee himself was forced out of job. Xxx Indeed, it is not always true that back salaries are paid only when work is done. Xxx For another, the poor employee could offer no work since he was forced out of work. Thus, to always require complete exoneration or performance of work would ultimately leave the dismissal uncompensated no matter how grossly disproportionate the penalty was. Clearly, it does not serve justice to simply restore the dismissed employee to his position and deny him his claim for back salaries and other economic benefits on these grounds. We would otherwise be serving justice in halves."
An illegally dismissed government employee who is later ordered reinstated is entitled to back wages and other monetary benefits from the time of his illegal dismissal up to his reinstatement. This is only fair and sensible because an employee who is reinstated after having been illegally dismissed is considered as not having left his office and should be given a comparable compensation at the time of his reinstatement.
When a government official or employee in the classified civil service had been illegally dismissed, and his reinstatement had later been ordered, for all legal purposes he is considered as not having left his office, so that he is entitled to all the rights and privileges that accrue to him by virtue of the office that he held.
The CSC moved for reconsideration but its motion was denied by the CA in its May 15, 2007 Resolution.
Hence, this petition.
WHETHER OR NOT THE ASSAILED DECISION IS LEGALLY CORRECT IN DECLARING THAT RESPONDENT WAS CONSTRUCTIVELY DISMISED AND ENTITLED TO BACK WAGES, NOTWITHSTANDING RESPONDENT'S REFUSAL TO COMPLY WITH BIR RTAO No. 25-2002 WHICH IS IMMEDIATELY EXECUTORY PURSUANT TO SECTION 24 (F) OF P.D. 807.
WHETHER OR NOT RESPONDENT SUFFERED A DIMINUTION IN HER SALARY IN RELATION TO SECTION 6, RULE III OF CSC MEMORANDUM CIRCULAR No. 40, SERIES OF 1998, DATED DECEMBER 14, 1998, AS A RESULT OF THE ISSUANCE [OF] BIR RTAO No. 25-2002 ORDERING HER REASSIGNMENT FROM BIR RR No. 7 IN QUEZON CITY TO BIR RR No. 4 IN SAN FERNANDO, PAMPANGA.
(6) Detail. A detail is the movement of an employee from one agency to another without the issuance of an appointment and shall be allowed, only for a limited period in the case of employees occupying professional, technical and scientific positions. If the employee believes that there is no justification for the detail, he may appeal his case to the Commission. Pending appeal, the decision to detail the employee shall be executory unless otherwise ordered by the Commission. [Underscoring supplied]
(7) Reassignment.--An employee may be reassigned from one organizational unit to another in the same agency; Provided, That such reassignment shall not involve a reduction in rank, status or salaries. [Underscoring supplied]