580 Phil. 177
VELASCO JR., J.:
Therefore, the committee unanimously agreed that SM-OIC Prudencio Diasnes be: Relieved for three (3) months. This will give him enough time to help his wife's problem; After the period lapsed he may return to work, but with another position or function; if he desire[s] to retire from the company separation/retirement pay may be granted to him.[1]Diasnes, however, did not avail himself of any of the options set forth in the committee's report and recommendations, but requested a Cebu City assignment which his employer granted. In Cebu City, Diasnes' performance as sales supervisor was far from encouraging. His attendance and punctuality were likewise very poor. To top it all, Diasnes did not at all report for work from October 12, 1996 to November 11, 1996.
SUBJECT: Habitual tardiness and AbsenteeismApparently finding Diasnes' explanation to be insufficient, Bandag dismissed Diasnes from the service effective November 11, 1996 on the grounds stated in the termination letter which reads as follows:
Your attendance records from Sept. 1 to Oct. 31, 1996, show that of the 50 working days, you report[ed for work] only for 25 days. Of the 25 days that you report[ed] for work, you never had any instance that you're on time - official reporting time is at 8:00 O'clock A.M.
During this period, you have not reported to work for 25 working days and these are all absences without official leave. This shows that your absences [amounted to] 50% [of the official work days] and [you were tardy] 100% [of the] period referred [to].
You have committed an act unbecoming of an officer and a breach of our policy on attendance. Habitual absenteeism and tardiness are cause for suspension and/or termination from employment.
You are therefore required to submit your written explanation within 48 hrs. from receipt of this memo and present yourself to the employees adjudication committee.
The Adjudication committee will convene immediately upon receipt of your reply. This consultation is of a substance to assure you that the management prerogative to discipline employees is not exercised in an arbitrary manner.
For your information and strict compliance.
L.C. RICO[2]
TO : P.J. DIASNESTo contest his dismissal from the service, Diasnes filed a complaint with the Regional Arbitration Branch of the National Labor Relations Commission (NLRC) for illegal dismissal, non-payment of salaries and allowances, 13th month pay, and other benefits against Bandag, Sarmiento Management Group, and Rico, docketed as NLRC RAB VII-1492-96.
DATE : NOVEMBER 11, 1996
SUBJECT: TERMINATION OF EMPLOYMENT
You had been notified for gross and habitual neglect of your duty and had been given enough time to be heard by an employees adjudication committee[.] Again, you [had been apprised] that the consultation is of a substance to assure you that the management prerogative to discipline employees is not exercise[d] in [an] arbitrary manner.
A number of company representatives had been sent to your residence but all failed to see you in person. A verification with the company Doctor, yield[ed] negative report of any health related consultation. All those that has been done is indicative of the management's concern of employees.
The termination of your employment is base[d] on the following:This is a willful breach of trust given to you as officer of the company and serious misconduct of an employee. And it is our belief, that you have put an end to the employer-employee relationship without serving any written notice to the company.
- HABITUAL TARDINESS FROM SEPT. 1, 1996 TO OCT. 11, 1996.
- ABSENCES WITHOUT OFFICIAL LEAVE DURING THE SAME PERIOD.
- FAILURE TO REPORT FOR WORK FROM OCTOBER 12, 1996 TO NOVEMBER 11, 1996.
Therefore, your employment is terminated effective November 11, 1996. You are requested to return all company assets in your [possession] to the company representative who will be authorized to retrieve them.
(Sgd.) Loreto C. Rico
General Manager[3]
WHEREFORE, premises considered, judgment is hereby rendered ordering the respondent Central Philippines Bandag Retreaders, Inc. to pay the complainant Prudencio J. Diasnes Separation Pay in the amount of P278,965.50 and proportionate 13th month pay in the amount of P14,652.74.Therefrom, both parties appealed to the NLRC, Diasnes assailing the labor arbiter's finding on the validity of his dismissal, while Bandag impugning the labor arbiter's decision insofar as the award of separation pay was concerned.
The case against respondents Sarmiento Management Corporation and Loreto Rico and the other claims are dismissed for lack of merit.
SO ORDERED.
WHEREFORE, premises considered, the Motion for Reconsideration filed by respondent Central Philippines Bandag Retreaders, Inc., is PARTIALLY GRANTED. The Decision promulgated on 12 January 1999 is ABANDONED and a new one is entered ordering respondent Central Philippines Bandag Retreaders, Inc. to pay complainant Prudencio J. [Diasnes] the amount of P14,652.74 representing [his] proportionate 13th month pay.Unsatisfied with the turn of events, Diasnes filed with the Court of Appeals (CA) a petition for certiorari and prohibition with prayer for injunctive relief. Docketed as CA-G.R. SP No. 58916, the petition sought the reinstatement of the NLRC's Decision dated January 12, 1999.
SO ORDERED.
WHETHER OR NOT A VALIDLY AND LEGALLY SEPARATED EMPLOYEE MAY BE ENTITLED TO SEPARATION PAY.
The only cases when separation pay shall be paid, although the employee was lawfully dismissed, are when the cause of termination was not attributable to the employee's fault but due to: (1) the installation of labor saving devices, (2) redundancy, (3) retrenchment, (4) cessation of employer's business, or (5) when the employee is suffering from a disease and his continued employment is prohibited by law or is prejudicial to his health and to the health of his co-employees (Articles 283 and 284, Labor Code.) Other than these cases, an employee who is dismissed for a just and lawful cause is not entitled to separation pay even if the award were to be called by another name.[10]Separation pay is likewise awarded in lieu of reinstatement if reinstatement is no longer feasible, as when the relationship between the employer and employee has become strained.[11] Still, in some cases, separation pay or financial assistance may be extended as a measure of social justice. PLDT v. NLRC settled the matter on the award and amount of financial assistance or separation pay that may be awarded a legally separated employee based on social or compassionate justice. This Court held:
There should be no question that where it comes to such valid but not iniquitous causes as failure to comply with work standards, the grant of separation pay to the dismissed employee may be both just and compassionate, particularly if he has worked for some time with the company. For example, a subordinate who has irreconcilable policy or personal differences with his employer may be validly dismissed for demonstrated loss of confidence, which is an allowable ground. A working mother who has to be frequently absent because she also has to take care of her child may also be removed because of her poor attendance, this being another authorized ground. x x x Under these and similar circumstances, however, the award to the employee of separation pay would be sustainable under the social justice policy even if the separation is for cause.As may noted, PLDT declared that separation pay or financial assistance should be denied a legally separated employee when the cause for dismissal is for an act constituting serious misconduct or that reflects on the employee's moral character. PLDT, however, did not go further to state that the grant or award of separation pay or financial assistance is automatically awarded when the dismissal is for a cause other than that contemplated in said case. This PLDT doctrine was later expanded in Toyota Motors Phils. Corp. Workers Association v. National Labor Relations Commission (Toyota), where we held that:
But where the cause of the separation is more serious than mere inefficiency, the generosity of the law must be more discerning. There is no doubt it is compassionate to give separation pay to a salesman if he is dismissed for his inability to fill his quota but surely he does not deserve such generosity if his offense is misappropriation of the receipts of his sales. This is no longer mere incompetence but clear dishonesty. A security guard found sleeping on the job is doubtless subject to dismissal but may be allowed separation pay since his conduct, while inept, is not depraved. But if he was in fact not really sleeping but sleeping with a prostitute during his tour of duty and in the company premises, the situation is changed completely. This is not only inefficiency but immorality and the grant of separation pay would be entirely unjustified.
We hold that henceforth separation pay shall be allowed as a measure of social justice only in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character. Where the reason for the valid dismissal is, for example, habitual intoxication or an offense involving moral turpitude, like theft or illicit sexual relations with a fellow worker, the employer may not be required to give the dismissed employee separation pay, or financial assistance, or whatever other name it is called, on the ground of social justice.[12]
In all of the foregoing situations, the Court declined to grant termination pay because the causes for dismissal recognized under Art. 282 of the Labor Code were serious or grave in nature and attended by willful or wrongful intent or they reflected adversely on the moral character of the employees. We, therefore, find that in addition to serious misconduct, in dismissals based on other grounds under Art. 282, like willful disobedience, gross and habitual neglect of duty, fraud or willful breach of trust, and commission of a crime against the employer or his family, separation pay should not be conceded to the dismissed employee.To reiterate our ruling in Toyota, labor adjudicatory officials and the CA must demur the award of separation pay based on social justice when an employee's dismissal is based on serious misconduct or willful disobedience; gross and habitual neglect of duty; fraud or willful breach of trust; or commission of a crime against the person of the employer or his immediate family--grounds under Art. 282[14] of the Labor Code that sanction dismissals of employees. They must be most judicious and circumspect in awarding separation pay or financial assistance as the constitutional policy to provide full protection to labor is not meant to be an instrument to oppress the employers. The commitment of the Court to the cause of labor should not embarrass us from sustaining the employers when they are right, as here. In fine, we should be more cautious in awarding financial assistance to the undeserving and those who are unworthy of the liberality of the law.
In analogous causes for termination, like inefficiency, drug use, and others, the NLRC or the courts may opt to grant separation pay anchored on social justice in consideration of length of service of the employee, the amount involved, whether the act is the first offense, the performance of the employee and the like, using guideposts enunciated in PLDT on the propriety of the award of separation pay.[13] (Emphasis added.)