327 Phil. 335
KAPUNAN, J.:
I am respectfully recommending that her employment be terminated the soonest. During her employment, she was found to be violating Company rules and regulations despite repeated demand from the management to cease the same. The violations like abandoning her place of work during office hours without prior permission from the management, not wearing the proper dress as prescribed by the Company, always late from work, commission of absences and her attitude and/or character is not suited in our operations. She was inefficient in her work. Productivity is very low and needs prodding to do a job.[2]
VIEWED FROM THIS LIGHT, judgment is hereby rendered declaring that complainant was illegally dismissed. Consequently, respondents are hereby directed to reinstate her to her former position, without loss of seniority rights and other privileges and to pay her full backwages and allowances in the amount of FIFTY TWO THOUSAND EIGHT HUNDRED FIFTEEN PESOS and EIGHTY FOUR CENTAVOS (P52,815.84) plus her salary differentials in the amount of TWO THOUSAND AND FIFTEEN PESOS (P2,015.00). Respondents are hereby directed to pay ten percent (10%) of the award as attorney's fees.
SO ORDERED.[3]
WHEREFORE, the Decision dated July 30, 1993 is hereby MODIFIED. Respondents are directed to reinstate complainant to her former position or equivalent position without loss of seniority rights but without backwages. The award of attorney's fees is likewise deleted. Other findings stand affirmed.
SO ORDERED.[4]
1. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN DENYING PETITIONER'S PAYROLL BACKWAGES AS MANDATED IN ARTICLE 223 OF THE LABOR CODE WHICH MEANS HER BACKWAGES DURING THE PERIOD FOLLOWING THE DECISION REINSTATING HER WHICH IS IMMEDIATELY EXECUTORY EVEN PENDING APPEAL, CONSIDERING THAT PRIVATE RESPONDENT REFUSED PETITIONER TO BE ACTUALLY REINSTATED.
2. THE NATIONAL LABOR RELATIONS COMMISSION COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION IN DELETING THE BACKWAGES AND ATTORNEY'S FEES AS AWARDED BY THE LABOR ARBITER, IN SPITE OF THE FINDING THAT PETITIONER WAS ILLEGALLY DISMISSED.[5]
Art. 223. Appeal.xxx
In any event, the decision of the Labor Arbiter reinstating a dismissed or separated employee, insofar as the reinstatement aspect is concerned, shall be immediately executory, even pending appeal. The employee shall either be admitted back to work under the same terms and conditions prevailing prior to his dismissal or separation or, at the option of the employer, merely reinstated in the payroll. The posting of the bond by the employer shall not stay the execution for reinstatement provided herein.
As regards the first issue, i.e., whether a writ of execution is still necessary to enforce the Labor Arbiter's order of immediate reinstatement even when pending appeal, we agree with petitioners that it is necessary. x x x
We have fully explained the legal basis for this conclusion in Maranaw Hotel Resort Corporation (Century Park Sheraton Manila) v. NLRC and Gina G. Castro thus -It must be stressed, however, that although the reinstatement aspect of the decision is immediately executory, it does not follow that it is self-executory. There must be a writ of execution which may be issued motu proprio or on motion of an interested party. Article 224 of the Labor Code provides:
Art. 224. Execution of decisions, orders or awards.- (a) The Secretary of Labor and Employment or any Regional Director, the Commission or any Labor Arbiter, or med-arbiter or voluntary arbitrator may, motu proprio or on motion of any interested party, issue a writ of execution on a judgment within five (5) years from the date it becomes final and executory x x x.
The second paragraph of Section 1, Rule XVIII of the New Rules of Procedure of the NLRC also provides:
The Labor Arbiter, POEA Administrator, or the Regional Director, or his duly authorized hearing officer of origin shall, motu proprio or upon motion of any interested party, issue a writ of execution on a judgment only within five (5) years from the date it becomes final and executory x x x. No motion for execution shall be entertained nor a writ be issued unless the Labor Arbiter is in possession of the records of the case which shall include an entry of judgment.
In the absence x x x of an order for the issuance of a writ of execution on the reinstatement aspect of the decision of the Labor Arbiter, the petitioner was under no legal obligation to admit back to work the private respondent under the terms and conditions prevailing prior to her dismissal or, at the petitioner's option, to merely reinstate her in the payroll. An option is a right of election to exercise a privilege, and the option in Article 223 of the Labor Code is exclusively granted to the employer. The event that gives rise for its exercise is not the reinstatement decree of the Labor Arbiter, but the writ for its execution commanding the employer to reinstate the employee, while the final act which compels the employer to exercise the option is the service upon it of the writ of execution when, instead of admitting the employee back to his work, the employer chooses to reinstate the employee in the payroll only. If the employer does not exercise this option, it must forthwith admit the employee back to work, otherwise it may be punished for contempt.
In the case at bench, there was no occasion for petitioners to exercise their option under Art. 223 of the Labor Code in connection with the reinstatement aspect of the decision of the Labor Arbiter. The motions of private respondents for the issuance of a writ of execution were not acted upon by NLRC. It was not shown that respondents exerted efforts to have their motions resolved. They are deemed to have abandoned their motions for execution pending appeal x x x.
Indeed, there is no doubt that the order dated August 1, 1983 is immediately executory. This being the case, the private respondents should have moved for the issuance of a writ of execution of said order even while the motion for reconsideration is still pending. It is significant to note that no mention was made of a motion for execution having been filed and it was only on August 29, 1985 when the Regional Director ordered the issuance of the writ of execution, motu proprio.
It is fitting to mention again our observation in National Steel Corporation vs. National Labor Relations Commission, et al., supra to wit:
What obviously cause the delay was the sheer inaction of private respondent who was entitled to enforce it. Under the circumstances, it would definitely be offensive to justice and fair play to hold petitioner liable for the consequence of such inaction.
There is no dispute that complainant committed infractions. In fact, complainant admitted the same in her letters of explanations. (Annexes" 8", "9" and "10", Respondent's Position Paper, Records, pp. 50, 51 & 52). But, whether or not such infractions constitute serious misconduct is dubitable.
The infractions referred to by respondent are:
1) late in reporting for work on January 2, 1992 - 8:5 a.m. (Annex "2", Ibid. Records, p. 37)
2) leaving the place of work during office hour without permission on January 16, 1992 (Annex "3", Ibid, Records, p. 38) and January 17, 1992 (Annex "4-B", Ibid, Records, p. 42).
It appears that complainant was assigned in one of the respondent's stations, specifically at Pines Theater. She has to time-in first at respondent's main office (Session Road) before reporting to her assigned post (See Annex "3"). Allegedly on January 16 and 17, 1992, complainant did not proceed directly to her assigned post after she timed in at the main office. She arrived thereat only at around 9:00 a.m. The reason she gave was that she settled her long overdue account (Annex "10", Supra). She also reasoned out that nevertheless, the Pines Theater usually opens at 8:45 a.m. or even later.
Anent her being late, complainant alleged that it was because she attended to pay long overdue bills and had pre-natal check-up.
To our mind, the above infractions committed by complainant do not constitute serious misconduct as to be meted the capital punishment of dismissal. While complainant is not faultless, capital punishment is not warranted. Hence, under the circumstances we find complainant entitled to reinstatement but without backwages. For it has been held that where a penalty less punitive would suffice, the supreme penalty of dismissal should not be visited (Almira vs. B.F. Goodrich, 58 SCRA 120).[8]
The Solicitor General further argues as follows:
Thus, while the series of infractions committed by the petitioner cannot be considered serious misconduct inimical to the interest of the company, they should be stopped before they exceed the bounds of reason or moderation. Petitioner's conduct should be dealt with by meting out appropriate sanctions if only to imprint deference to company rules and regulations. Considering however that aside from these two minor infractions no other misconduct could be attributed to petitioner, dismissal is too severe a penalty to impose. In the case of Cruz v. Minister of Labor and Employment, 120 SCRA 15, this Honorable Court ruled:The court is convinced that petitioner's guilt was substantially established. Nevertheless, we agree with respondent Minister's order of reinstating petitioner without backwages instead of dismissal which may be too drastic. Denial of backwages would sufficiently penalize her for her infractions. The bank officials acted in good faith. They should be exempt from the burden of paying backwages. The good faith of the employer, when clear under the circumstances, may preclude or diminish recovery of backwages. Only employees discriminately dismissed are entitled to backpay. . . .
Similarly, the case of Itogon-Suyoc Mines, Inc. v. NLRC, et al., 119 SCRA 528 pronounced:
The ends of social and compassionate justice would therefore be served if private respondent is reinstated but without backwages in view of petitioner's good faith.
Hence, petitioner's reinstatement without backwages is justified.[11]
On the aspect of due process, it would now seem that respondents relied merely on the recommendation of Mr. Layug, and the basis of which has not been made known to complainant, except when she received the notice of termination on February 15, 1992.
The complainant was separated on the very day that she received the notice of termination. Now, even if she was a probationer, she can only be removed for cause, as outlined in Article 282 of the Labor Code, and after due process.[14]
Even the NLRC, in its assailed decision, stated thus:
In the termination letter of complainant, the ground invoked by respondent was her alleged failure to meet the performance standard (Annexes "E" and "15", supra). However, in its position paper, respondent capitalizes on her infractions contending that the same amounted to serious misconduct that would justify her dismissal.[15]
Art. 2208. In the absence of stipulation, attorney's fees and expenses of litigation, other than judicial costs, cannot be recovered, except:xxx
(7) In actions for the recovery of wages of household helpers, laborers and skilled workers;xxx
In her original complaint petitioner explicitly included the recovery of her salary differentials and the Labor Arbiter ruled in this wise:
The record shows that, from June 11 up to August 26 the complainant was only paid P75.00 per day. At that time the prevailing rate was already P106.00 pesos. Article 1419 of the Civil Code provides:When the law sets, or authorizes the setting of a minimum wage for laborers, and a contract is agreed upon by which a laborer accepts a lower wage, he shall be entitled to recover the deficiency.
In line with the above-cited law, complainant is entitled to recover the deficiency. Respondents should therefore pay the deficiency for sixty five (65) days in the amount of Two Thousand Fifteen Pesos (P2,015.00).
The undersigned Labor Arbiter shall refrain from awarding moral and exemplary damages to maintain a wholesome working atmosphere between complainant and respondents. Respondents are however directed to pay ten percent (10%) of the totality of the award, considering that at one time, they have withheld part of the wages that complainant should have earned, when they paid her only P75. 00 per day.[17] (Italics ours.)