620 Phil. 505
NACHURA, J.:
[Respondents] Jonar P. Robles, George G. Gonito, and Christian Aldrin S. Cristobal (hereafter Jonar, George, and Christian, respectively and [respondents] collectively) are former health care representatives assigned at the District V-MSD Cardiovascular Unit, Region I (hereafter MSD -V) of [petitioner corporation] Merck Sharp and Dohme x x x, a pharmaceutical corporation organized under Philippine law.Undaunted, respondents filed a petition for certiorari before the CA alleging grave abuse of discretion in the NLRC's dismissal of their complaint.
[Respondents] alleged that on November 28, 2003, they were summoned together with the other health care representatives in MSD-V by their Regional Sales Manager, Peter S. Carbonell [petitioner Carbonell] to a meeting. [Respondents] claim that no meeting took place. Instead, the other health care representatives were directed to leave while [respondents] were told to stay behind.
Thereafter, the director of Human Resources, General and Legal, Jerome Sarte, came and distributed to [respondents], Employees' Notice to Explain (hereafter ENTE) dated November 27, 2003. [Respondents] were told that they were being preventively suspended based on an evidence gathered through an informer-witness. [Respondents] alleged that the ENTE was read aloud to them. A sample of an ENTE reads as follows:Gonito, George[Respondents] were directed to submit a written explanation within 72 hours from receipt and their salaries and benefits will be withheld indefinitely. [Respondents] assert that the ENTEs were general and the documents [referred] to were not attached.
"It has come to the attention of management, through a signed document submitted by a source we cannot reveal at this point, that you may have been involved in several questionable transactions deemed contrary to company and corporate values. The seriousness of accusations contained therein prompted management to conduct an initial investigation of facts, which involved a re-review of the Expense Reports you have submitted beginning at the start of this year. Preliminary findings showed that there is cause for citing you under several provisions of the Company's Code of Conduct, herein enumerated:
Facts of the case:
1. EXPENSE REPORT for January 16-31
· Event: PR Campaign for VMMC Supply Department
· Receipt: Lorna's Food Services - 6 February 2003, Php 2,500.
o Receipt appeared old and yellowish x x x
o When double checked x x x the person talked to said that they are not engaged in Catering Services
o An independent private investigation agency commissioned by the company, x x x was able to locate said Lorna's Food Services x x x she denied having validly issued the said receipt and that the signature in the said receipt was not her hand nor any other authorized signatory of her business. In other words, the transaction covered by the said receipt is fictitious.
x x x x
2. EXPENSE REPORT for April 16-30 x x x
· Event: Journal Club Meeting
· Receipt: Lorna's Food Services - 23 April 2003, Php 3,500.o Same comments as above on phone double checking and proprietor declaration.
o Receipt[,] however[,] had a Control Number (397), which according to private investigation agency appeared to be manually stamped and therefore spurious. x x x
POSSIBLE DISCIPLINARY INFRACTION/S
1. DISHONESTY: Misrepresentation, forging, or falsifying personal or company records. ( 1st Offense - Termination)
2. OFFENSES AGAINST COMPANY INTEREST: Submitting false, misleading, or inaccurate data about the work of other employees.a) willful (1st Offense - Termination)
b) Due to negligence (1st Offense - Written Reprimand)
3. LOSS OF TRUST AND CONFIDENCE
You are hereby required to explain in writing your side on the facts above mentioned, within seventy-two (72) hours upon receipt of this notice (Tuesday, 2 December 2003). Kindly state in clear terms your reasons behind this issue and explain why no corrective action, including termination of employment should be taken against you for above alleged actions. Please take note also that your written response will be taken without prejudice to other incriminatory findings which may be discovered in the course of formal investigation and hearing of this case.
x x x x
In the meantime, pending completion of formal investigation and hearing of this case, and in view of the seriousness of the charges raised in the light of the sensitivity of the position you presently occupy, management is putting you under PREVENTIVE SUSPENSION effective immediately upon receipt of this notice. You shall be notified in due course of the scheduled administrative investigation to be conducted by the Company. Please make the necessary turn over of your Company Car to the Admin. Officer within twenty-four (24) hours, as well as other company properties in your possession before going on preventive suspension. The company will allow you to further use your company issued cell phone while on Preventive Suspension to allow open communication lines when this case is on-going. However, billing for your calls during said period will be fully charged to your personal account."
On December 1, 2003, [respondents] filed with the Labor Arbiter a complaint for illegal suspension. On December 4, 2003, [petitioners] summoned [respondents] for a hearing. During the said hearing, [respondents] reiterated their request that they be furnished a copy of the alleged primary findings against them. [Petitioners] refused stating that the investigation is not a formal hearing thus, a trial type proceeding was inapplicable.
On December 22, 2003, [respondents] Jonar and George received a Notice of Corrective Action (hereafter NOCA) informing them that management has decided to terminate their services effective immediately. Christian, however, was informed that his suspension was lifted. Jonar and George filed a supplemental complaint affidavit for illegal termination.
Christian, on the other hand, reported back for work. He was shocked, however, when he discovered that he was reassigned to District I of Baguio City and La Union as his new area of responsibility. Christian requested for a transfer. His request was not favorably acted upon, instead, he received his second ENTE dated January 19, 2004, for dishonesty and offenses against company interest. [Respondent] Christian answered the ENTE stressing that although he was previously exonerated, he is again being charged for the same offense. To support his case, Christian secured a certification from the Chief Resident of the Department of Family Medicine FEU-NRMF with regard [to] his sponsoring [a] lecture in the said department on May 7, 2003. Thereafter, Christian got sick due to the stress brought about by his receiving several ENTEs. As such, he was compelled to apply for a sick leave. Christian stated that his sick leave application was not acted upon and instead he received his third ENTE dated February 4, 2004, for insubordination, serious misconduct or willful disobedience. Christian, thereafter, resigned citing oppression and utter unbearability of the work atmosphere. Christian then amended his complaint for constructive dismissal.
On November 15, 2004, the Labor Arbiter rendered a decision dismissing [respondents'] complaint for utter lack of merit. Upon appeal to the NLRC, the latter affirmed the Labor Arbiter.[3]
1. [WHETHER THE] COURT OF APPEALS DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS WHEN IT GAVE DUE COURSE TO PRIVATE RESPONDENT'S (CRISTOBAL'S) PETITION FOR CERTIORARI.We first dispose of the procedural issues.
2. [WHETHER] THE COURT OF APPEALS GRAVELY ERRED WHEN IT REVERSED THE NLRC DECISION.
3. [WHETHER THE] HONORABLE COURT MAY REVIEW FACTUAL CONCLUSION[S] OF THE COURT OF APPEALS WHEN CONTRARY TO THOSE OF THE NLRC OR THE LABOR ARBITER.[4]
(a) where the order is a patent nullity, as where the court a quo has no jurisdiction;The second and fourth exceptions are applicable in this case. As pointed out by respondent Cristobal, Jean Sarmiento, one of the complainants in NLRC-NCR Case No. 00-12-13804-2003 before the Labor Arbiter who was similarly situated as Cristobal and had likewise claimed constructive dismissal by MSD, filed a motion for reconsideration which was perfunctorily denied by the NLRC. At that moment, respondent Cristobal was justified in directly filing a petition for certiorari with the CA to annul the NLRC resolution. In point is Abraham v. National Labor Relations Commission:[10]
(b) where the questions raised in the certiorari proceedings have been duly raised and passed upon by the lower court, or are the same as those raised and passed upon in the lower court;
(c) where there is an urgent necessity for the resolution of the question and any further delay would prejudice the interests of the Government or of the petitioner or the subject matter of the action is perishable;
(d) where, under the circumstances, a motion for reconsideration would be useless;
(e) where petitioner was deprived of due process and there is extreme urgency for relief;
(f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by the trial court is improbable;
(g) where the proceedings in the lower court are a nullity for lack of due process;
(h) where the proceedings was ex parte or in which the petitioner had no opportunity to object; and
(i) where the issue raised is one purely of law or where public interest is involved.[9]
The rationale for the requirement of first filing a motion for reconsideration before the filing of a petition for certiorari is that the law intends to afford the tribunal, board, or office an opportunity to rectify the errors and mistakes it may have lapsed into before resort to the courts of justice can be had. In the present case, the NLRC was already given the opportunity to review its ruling and correct itself when the respondent filed its motion for reconsideration of the NLRC's initial ruling in favor of petitioner. In fact, it granted the motion for reconsideration filed by the respondent and reversed its previous ruling and reinstated the decision of the Labor Arbiter dismissing the complaint of the petitioner. It would be an exercise in futility to require the petitioner to file a motion for reconsideration since the very issues raised in the petition for certiorari, i.e. whether or not the petitioner was constructively dismissed by the respondent and whether or not she was entitled to her money claims, were already duly passed upon and resolved by the NLRC. Thus the NLRC had more than one opportunity to resolve the issues of the case and in fact reversed itself upon a reconsideration. It is highly improbable or unlikely under the circumstances that the Commission would reverse or set aside its resolution granting a reconsideration.[11]We now come to the pivotal issue for our resolution: whether respondent Cristobal was constructively dismissed by petitioner MSD.
Well-settled is the rule that it is the prerogative of the employer to transfer and reassign employees for valid reasons and according to the requirement of its business. An owner of a business enterprise is given considerable leeway in managing his business. Our law recognizes certain rights, collectively called management prerogative as inherent in the management of business enterprises. We have consistently recognized and upheld the prerogative of management to transfer an employee from one office to another within the business establishment, provided that there is no demotion in rank or diminution of his salary, benefits and other privileges and the action is not motivated by discrimination, made in bad faith, or effected as a form of punishment or demotion without sufficient cause. This privilege is inherent in the right of employers to control and manage their enterprises effectively.In the case at bar, specifically in the matter of respondent Cristobal's transfer, the Labor Arbiter and the NLRC promptly dismissed Cristobal's charge of constructive dismissal. Both labor tribunals relied heavily on the stipulation in the employment contract which reads:
The right of employees to security of tenure does not give them vested rights to their positions to the extent of depriving management of its prerogative to change their assignments or to transfer them. Managerial prerogatives, however, are subject to limitations provided by law, collective bargaining agreements, and general principles of fair play and justice.
The employer bears the burden of showing that the transfer is not unreasonable, inconvenient or prejudicial to the employee; and does not involve a demotion in rank or a diminution of his salaries, privileges and other benefits. Should the employer fail to overcome this burden of proof, the employee's transfer shall be tantamount to constructive dismissal.[14]
9. You agree to be assigned to any work for such period as may be determined by [MSD] whenever the operations thereof require such assignment. It is also understood that, depending upon the operational requirements of [MSD], you may be assigned to any location in the Philippines. These assignments are subject to change any time whenever necessary in the interest of [MSD].This provision, coupled with their finding that the new assignment did not involve a demotion in rank and/or a diminution in pay, led to the labor tribunals' uniform conclusion that Cristobal unjustly refused to comply with his new work assignment, and was, therefore, not constructively dismissed.
This Court, however, takes exception to the ruling of the NLRC as regards the case of Christian. The pertinent portion of the NLRC's ruling reads as follows:We are in accord with the appellate court's ruling that respondent Cristobal was constructively dismissed by MSD."x x x. It is undisputed that complainants Sarmiento, Cristobal and Tomeldan were merely transferred to their new assignments as a result of an annual implementation of the new Territorial configuration/PHR Assignments usually done by the Company at the start of every year. x x x The records of the case are bereft of any evidence showing that their resignation was an involuntary one; and it was resorted to because their continued employment has become impossible, unreasonable or unlikely. It is worthy to note that said transfers affect not only the [respondents] but some other co-employees as well, which included three (3) other District Managers."The facts of the case at bar show that after Christian's suspension was lifted, he was given a new assignment. Christian requested for a transfer which was not granted. Thereafter, Christian received a new ENTE containing the charges similar to the ones for which he was already exonerated. Moreover, [petitioners] failed to explain why they did not act on Christian's application for sick leave and instead gave him another ENTE. The events that thereafter transpired lead to the conclusion that Christian's continued employment with [petitioner MSD] has become unbearable. It is settled that constructive dismissal exists when an act of clear discrimination, insensibility or disdain on the part of the employer has become so unbearable as to leave an employee with no choice but to forego continued employment.
Indeed it is settled that "the objection to the transfer being grounded on solely upon the personal inconvenience or hardship that will be caused to the employee by reason of the transfer is not a valid reason to disobey an order of transfer." A scrutiny of the facts of the case at bar, however, shows that the transfer of Christian reeks with bad faith as to consider his case one of constructive dismissal. Under the law, Christian has to be reinstated to his former position with full backwages from the time he was dismissed up to his actual reinstatement.[15]
Westmont and Unilab failed to discharge this burden. Samaniego was unceremoniously transferred from Isabela to Metro Manila. We hold that such transfer is economically and emotionally burdensome on his part. He was constrained to maintain two residences - one for himself in Metro Manila, and the other for his family in Tuguegarao City, Cagayan. Worse, immediately after his transfer to Metro Manila, he was placed "on floating status" and was demoted in rank, performing functions no longer supervisory in nature.As with Westmont and Unilab in the cited case, MSD failed to discharge the required burden of proof. The following circumstances negate MSD's claim that, on the whole, the transfer of Cristobal was done in good faith and based on just and valid grounds:
There may also be constructive dismissal if an act of clear insensibility or disdain by an employer becomes so unbearable on the part of the employee that it could foreclose any choice by him except to forego his continued employment. This was what happened to Samaniego. x x x.[18]