621 Phil. 76
CARPIO, J.:
In his position paper, complainant [Inocencio B. Berbano, Jr.] alleged that he was hired by the respondent Philippine Long Distance [Telephone] Company (PLDT, for brevity) on June 1, 1988 as Engineering Assistant. After his probationary period of three months, he was issued an appointment letter with a status of a regular employee of respondent. After several promotions, complainant finally held the position of Computer Assistant M-2 on June 16, 1993 in the Sampaloc Exchange Department/Operation and Maintenance Center of the respondent. Although his function is "Computer Assistant M-2," complainant further alleges that he performed the functions of a Specialist for EWSD who was responsible for handling, operations and maintenance of the whole EWSD Network handling network database, fault clearance, database modification alarm monitoring, traffic routing, trunk administration, password and tariff administration and others.On 28 September 1998, the Labor Arbiter[5] rendered a Decision, the dispositive portion of which reads:
Being trained as EW[S]D OMC Specialist, complainant claims that respondent expected him to have "depth of understanding" in continuous painstaking research and study. Thus, he initiated a study of "hi-tech EWSD Switching Equipment," a part of which is the software installation of various subscriber service features and control operation. It is at this time that complainant tapped his brother-in-law's number (911-8234) without the latter's knowledge and installed service features in it for study. Such service features included:
1. Security Code
2. Conference Call Three (Three-way calling)
3. Abbreviated Dialing
4. Hot Line Delayed
5. Call Diversion Immediate
6. Call Diversion Don't Answer
7. Call Hold
8. Non-Changeable
Later, on April 21, 1994, complainant learned that the phone number 911-8234 is under investigation by the Quality Control Inspection Office due to the unauthorized installation of service features thereto. Complainant admitted that he was responsible for such installation for purposes of study and testing.
Formal investigation ensued on April 22, 1994 and subsequently, on July 6, 1994, complainant received a Memorandum from the Department Head of the Sampaloc Exchange asking him to explain within 72 hours upon receipt why an [a]dministrative [a]ction should not be taken against complainant regarding the matter of the unauthorized installations mentioned at the phone number 911-8234.
On July 11, 1994, complainant submitted a written explanation claiming that the aforementioned installation of service features was for purposes of study and research.
Finding unacceptable the complainant's explanation, respondent PLDT dismissed complainant from the service effective August 16, 1994.
On the other hand, respondent submits that upon discovery of the installation of service features to the phone number 911-8234 without the authorization and approval of the respondent, and after investigation, complainant readily admitted having programmed the said features and that this installation was without prior authorization. Respondent's position paper further avers that having worked as [a] Computer Assistant, complainant took advantage of his position and his access to respondent company's computer to favor his brother-in-law's telephone by irregularly providing it with special features. Such special features included the following:
1. Push Button
2. Test Call Only
3. Malicious Call Identification
4. Non-chargeable (Calls to subscriber with this class of service are free of charge for the caller)
5. Three-way Calling (Allows a third party to be linked to an existing call)
6. Call Hold
7. Abbreviated dialing 90 numbers
8. Hotline delay
9. Pin Code
10. Call Diversion Immediate
11. Call Diversion to Fixed Announcement
12. Traffic Restr. Class Act Auth. (Authorization to activate traffic restriction classes)
13. Call Diversion Don't Answer (Authorization to enter a destination no. for call diversion on no answer)
14. Traffic Restriction Class 1
15. Abbreviated Dial Number Mod. Auth. (Authorization for subs controlled entry and and modification of abbreviated nos.)
16. Call Diversion Immediate (Modification Authorization)
17. Hotline Delay Mod. Auth.(Modification Authorization)
Respondent also found complainant's explanation that the installment was for testing purposes, unmeritorious and unjustified considering that said special features were only deleted upon discovery, two months after their installations. Further, testings, according to the respondent company's rules should only last for one day.[4]
WHEREFORE, premises considered, judgment is hereby rendered ordering the reinstatement of the complainant to his previous position of Computer Assistant M-2 without loss of seniority rights. Furthermore, respondent is hereby ordered to pay to the complainant the amount of FIVE HUNDRED THIRTY SEVEN THOUSAND FOUR HUNDRED TWENTY PESOS (P537,420.00) representing the backwages of the complainant from the time that he was terminated in August 1994 up to the present, minus any possible income earned elsewhere since complainant's dismissal. The equivalent ten (10%) percent attorney's fees of the total award in the amount of P53,742.00 is also granted.On 29 May 2002, the NLRC rendered a Decision reversing that of the Labor Arbiter, with the following dispositive portion:
SO ORDERED.[6]
WHEREFORE, premises considered, the assailed decision is hereby reversed and set aside. Respondents are adjudged not guilty of illegal dismissal. Accordingly, the award of backwages and attorney's fees is hereby deleted from the decision.On 15 August 2002, Berbano filed a Motion for Reconsideration, but this was denied by the NLRC in its Resolution dated 29 October 2002.[8]
SO ORDERED.[7]
WHEREFORE, premises considered, the petition is GRANTED. The decision of the public respondent NLRC promulgated on May 29, 2002 is REVERSED and SET ASIDE and the decision dated September 28, 1998 of the Honorable Labor Arbiter Romulus S. Prota[s]io is hereby REINSTATED in all respect. Private respondent PLDT is ordered to pay the backwages to which the petitioner is entitled from January 15, 2003, the date of his dismissal, until his actual reinstatement.PLDT filed a Motion for Reconsideration, but this was denied by the Court of Appeals in its Resolution of 9 September 2004.[10]
SO ORDERED.[9]
Art. 277. Miscellaneous Provisions.--The above provision is implemented by Section 2, Rule XXIII of Book V of the Omnibus Rules Implementing the Labor Code, which states:
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 regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. x x x
Section 2. Standards of due process: requirements of notice.-- In all cases of termination of employment, the following standards of due process shall be substantially observed:Thus, dismissal from service of an employee is valid if the following requirements are complied with: (a) substantive due process which requires that the ground for dismissal is one of the just or authorized causes enumerated in the Labor Code, and (b) procedural due process which requires that the employee be given an opportunity to be heard and defend himself.[17] The employee must be furnished two written notices -- the first notice apprises the employee of the particular act or omission for which his dismissal is sought, and the second notice informs the employee of the employer's decision to dismiss him.[18]
I. For termination of employment based on just causes as defined in Article 282 of the Code:
(a) A written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side;
(b) A hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him; and
(c) A written notice of termination served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination. x x x.
You readily admitted to QCI that subscriber of subject telephone is your brother-in-law and that you installed the features claiming it was for testing purposes.In the same memorandum, petitioner asked respondent to explain within 72 hours upon receipt thereof why an administrative action should not be imposed against him.[20] On 11 July 1994, respondent submitted his "written explanation" or reply to the complaint against him.[21] More than a month thereafter, or on 9 August 1994, petitioner issued another inter-office memorandum informing respondent that his act of installing special features in his brother-in-law's telephone line without authorization from petitioner constituted "gross misconduct" and was "grossly violative of existing company rules and regulations," hence, warranting his termination from service.[22] Clearly, petitioner complied with the requirement of procedural due process.
Records show that subject telephone was temporarily disconnected last March 24, 1994 for non-payment, reconnect order was faxed to Data Control Unit of OMCC at 1:30PM. In the process of reconnection at OMCC, subject telephone was found already working.[19]
Art. 282. Termination by employer. --An employer may terminate an employment for any of the following causes:The notice of termination sent by petitioner to respondent indicated that the latter was dismissed from service due to unauthorized installation of service features in his brother-in-law's telephone line, which allegedly constituted gross misconduct. Thus, we are left with the issue on whether the said unauthorized act of the respondent constitutes a serious misconduct which warrants dismissal from service under Article 282(a) of the Labor Code.
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and
(e) Other causes analogous to the foregoing. (Emphasis supplied)
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.[23] Ordinary misconduct would not justify the termination of services of the employee as the Labor Code is explicit that the misconduct must be serious.[24] To be serious, the misconduct must be of such grave and aggravated character and not merely trivial and unimportant.[25] Such misconduct, however serious, must nevertheless be in connection with the employee's work to constitute just cause for his separation.[26] As amplified by jurisprudence, misconduct, to be a just cause for dismissal, must (a) be serious; (b) relate to the performance of the employee's duties; and (c) show that the employee has become unfit to continue working for the employer.[27] Moreover, in National Labor Relations Commission v. Salgarino,[28] this Court stressed that "[i]n order to constitute serious misconduct which will warrant the dismissal of an employee under paragraph (a) of Article 282 of the Labor Code, it is not sufficient that the act or conduct complained of has violated some established rules or policies. It is equally important and required that the act or conduct must have been performed with wrongful intent."We believe that the misconduct of respondent is not of serious nature as to warrant respondent's dismissal from service. The records of this case are bereft of any showing that the alleged misconduct was performed by respondent with wrongful intent. On the contrary, respondent readily admitted having installed the service features in his brother-in-law's telephone line for purposes of study and research which could have benefitted petitioner. Respondent explained the installation of the service features in the "written explanation" he sent to petitioner as follows:
x x xMoreover, as pointed out by the appellate court, respondent's misconduct did not result in any economic loss on the part of petitioner since the service features were not yet available in the market at the time respondent caused its unauthorized installation.
There had been a time on that period where I conducted special study on service features of EWSD. It includes testing the integrity of its actual operation in all digital exchanges connected to our OMC.
During which [sic] I conducted my study of these features for Cubao there was no available test number at OMC for code "911" and "912". So to complete my study I decided to use the number 9118234 at home temporarily and remove those features after the test.[29]
Art. 279. Security of Tenure. -- In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.Thus, an illegally dismissed employee is entitled to the twin reliefs of (a) either reinstatement or separation pay, if reinstatement is no longer viable, and (b) backwages.[32] These reliefs are given to alleviate the economic damage suffered by the illegally dismissed employee.[33]