386 Phil. 669
KAPUNAN, J.:
This pertains to the case (NCR-00-01-00652-94) filed by the complainant Rufino Norberto F. Samson against the respondents Schering – Plough Corp. (‘SPC’ for brevity) and Mr. Leo C. Riconalla, National Sales Manager, for money equivalent of rice subsidy for the period April 1990 to December 1992 and holiday pay, now deemed submitted for resolution based on records available.On the basis of the pleadings filed by the parties and evidence on record, the labor arbiter rendered his Decision, dated 25 August 1994, declaring the dismissal of petitioner illegal. The labor arbiter ruled that petitioner’s conduct is not so serious as to warrant his dismissal because: 1) the alleged offensive words were uttered during an informal and unofficial get-together of employees where there was social drinking and petitioner was already tipsy; 2) the words were uttered to show disapproval over management’s decision on the "Cua Lim" case; 3) the penalty for the offense is only "verbal reminder" under respondent company’s rules and regulations; and 4) petitioner was already admonished during a meeting on 4 January 1994. Accordingly, respondent company was ordered to reinstate petitioner as District Sales Manager and to pay him backwages.[2]
On February 1, 1994, said complainant filed another case (NCR-00-02-00887-94) for illegal preventive suspension raffled to the Honorable Labor Arbiter Donato G. Quinto, Jr. and consolidated to the above case number.
Likewise, on February 4, 1994, complainant filed a Motion to Amend Complaint and averred pertinently that ‘x x x complainant was placed under an indefinite preventive suspension on 25 January 1994’; and ‘x x x was arbitrarily and summarily terminated from employment on 03 February 1994 on ground of loss of confidence.’
As culled from the records of the instant case, what really precipitated complainant’s preventive suspension culminating to his dismissal is (sic) the incident that took place on December 17, 1993 as gleaned from the exchange of letters/memoranda from both parties.
In a letter dated 25 January 1994 (Annex ‘A’) addressed to the complainant Mr. Samson signed by one J.L. Estingor, the latter called the attention of (sic) the complainant’s conduct ‘x x x in a manner inimical to the interests of SPC’ and enumerated the following acts committed by the complainant; to wit:Complainant was given two (2) days from receipt of the foregoing letter and to explain ‘x x x why no disciplinary action, including termination’, should be taken against the complainant and in the meantime was placed on preventive suspension effective immediately, until further notice.x x x x x x x x x
1. On or about 17 December 1993, during the Sales and Marketing Christmas gathering, you made utterances of obscene, insulting, and offensive words, referring to or directed against SPC’s Management Committee, in the presence of several co-employees.
2. On that same occasion, and again in the presence of several co-employees, you uttered obscene, insulting and offensive words, and made malicious and lewd gestures, all of which referred to or were directed against Mr. Epitacio D. Titong, Jr. President and General Manager of SPC.
3. Also on that same occasion, you repeated your malicious utterances and threatened to disrupt or otherwise create violence during SPC’s forthcoming National Sales Conference, and enjoined your co-employees not to prepare for the said conference.
4. Subsequently, on or about 3 January 1994, you repeated your threats to some co-employees, advising them to watch out for some disruptive actions to happen during the National Sales Conference.’ (Underscoring ours)
Complainant on the very same date 25 January 1994 and in reply to the above-mentioned letter/memo (Annex ‘B’) wrote an explanation stating:Submitted for your information.’(Underscoring ours)‘x x x x x x x x x
Relative to the said memo I would like to categorically state the following facts:
1. That the act(s) alluded in the memo, specifically paragraph[s] 1 and 2, which alleged that I uttered obscene, insulting and offensive words is not true. If ever I happened to utter such words it was made in reference to the decision taken by the management committee on the Cua Lim case and not to any particular or specific person(s) as stated in the memo.
2. I beg to disagree with the statement made in Paragraphs 3 and 4 of the same memo as I deny to have uttered much less threaten to create violence and disrupt the holding of the National Sales Conference.
Finally, I am lodging a formal protest for being placed under preventive suspension it being contrary to the memo which gave me two (2) days within which to explain my position before any disciplinary action could be initiated. I believe that the pre-empted imposition of the preventive suspension is not only arbitrary but is violative of my constitutional 'right to due process'.
Again, on January 27, 1994, complainant wrote a letter (Annex 'C') addressed to Mr. J.L. Estingor, HRD Manager, which in part reads:In a letter dated February 3, 1994, respondent SPC thru Mr. J.L. Estingor, wrote a letter (Annex ‘D’) to the complainant Mr. Samson, the dispositive part of which reads as follows:‘x x x x x x x x x
Being a staff (DSM) assigned in the field I seldom stay in the office except on extreme necessity or when my presence is required. Under such situation my continued employment will not in any way poses [sic] serious or imminent threat to the life and property of the company as well as my co-employees. The preventive suspension meted out against me is not only abusive, arbitrary but indiscriminately applied under the guise of managerial prerogative but violative of my right under the law.
I trust that my immediate reinstatement will be acted upon without any further delay.’‘x x x x x x x x x
In view of the foregoing, notice is hereby given that your employment from Schering Plough Corporation is terminated effective at the close of business hours of 3 February 1994.
We reiterate our previous directive for you to turn over the service vehicle, all money, documents, records and other property in your possession or custody to the National Sales Manager. Please comply with this directive immediately.’"[1]
It is well established in the records that complainant made insulting and obscene utterances directed at the respondent company’s management committee in the presence of several employees. Again, he directed his verbal abuse against General Manager and President Epitacio D. Titong, Jr. by uttering "Si EDT, bullshit yan", "sabihin mo kay EDT yan"; and "sabihin mo kay EDT, bullshit yan" while gesturing and making the "dirty finger" sign. (page 7, Decision) These utterances were made by the complainant in [a] loud manner. (Affidavit of Leo C. Riconalla, Annex "1", of respondents’ position paper) He was further accused of threatening to disrupt respondents’ national sales conference by telling Ms. Anita Valdezco that the conference will be a "very bloody one." (Respondents’ position paper)Preliminarily, we find it necessary to resolve the procedural issues raised by respondent company in its Comment (with Motion for Clarification), dated 6 September 1995. Respondent company harped on the fact that the caption of the petition did not include the docket numbers of the cases before the NLRC in violation of Supreme Court Circular 28-91. We do not find this omission fatal as the pertinent docket numbers had been set out in the first and second pages of the petition. The same constitutes substantial compliance with the requirement of the law.
We consider the foregoing actuations of the complainant as constituting gross misconduct, sufficient to justify respondents in terminating his services. The actuation of the complainant is destructive of the morals of his co-employees and, therefore, his continuance in the position of District Sales Manager would be patently inimical to the respondent company’s interest.
Complainant is a managerial employee as he is a District Sales Manager. As such, his position carries the highest degree of responsibility in improving and upholding the interests of the employer and in exemplifying the utmost standard of discipline and good conduct among his-co-employees. (Top Form Mfg. Inc., vs. NLRC, 218 SCRA 313) In terminating the employment of managerial employees, the employer is allowed a wider latitude of discretion than in the case of ordinary rank-and-file employee. (Aurelio vs. NLRC, et al., G.R. 99034, April 12, 1993)[3]
Art. 282. Termination by employer. – An employer may terminate an employment for any of the following causes:As borne by the records, petitioner’s dismissal was brought about by the utterances he made during an informal Christmas gathering of respondent company’s Sales and Marketing Division on 17 December 1993. Petitioner was heard to have uttered, "Si EDT (referring to Epitacio D. Titong, General Manager and President of respondent company), bullshit yan," "sabihin mo kay EDT yan" and "sabihin mo kay EDT, bullshit yan," while making the "dirty finger" gesture. Petitioner likewise told his co-employees that the forthcoming national sales conference of respondent company would be a "very bloody one."
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.
Petitioner’s conduct on 17 December 1993 may be properly considered as falling under either paragraph number 2, i.e., use of violent language, or paragraph number 3, i.e., insolence or disrespect towards a superior authority. Being a first offense, the appropriate penalty imposable on petitioner is only a "verbal reminder" and not dismissal.
1. xxx 2. Loafing or loitering, engaging in fistcuffs or loudmouthed quarreling or provoking or engaging others to such behaviour, inflicting bodily harm to another, any violent act or language which affects adversely morals, production or the maintenance of discipline, indecent or immoral conduct during working hours; unauthorized participation in activities during official hours which are outside of regularly assigned duties: malingering; unauthorized absence such as undertime; going on sick leave although not actually sick; frequently receiving visitors during official hours for personal matter. 3. Willful and intentional refusal without valid reason to accept work or follow specific instructions; disrespect; insolence; and like behavior towards a superior authority of a high ranking officer of the company. P E N A L T I E S First Offense: Verbal reminder Second Offense: Written reprimand Third offense: Payroll deduction for time not worked due offenses. Review with Dept. Head with written follow up. Fourth Offense: 2nd written reprimand with warning of suspension Fifth Offense: Suspension and final reprimand with warning of dismissal if reoccurs. Sixth Offense: Dismissal
It would imply at the very least that where a penalty less punitive would suffice, whatever missteps may be committed by labor ought not to be visited with a consequence so severe. It is not only because of the law’s concern for the workingman. There is, in addition, his family to consider. Unemployment brings untold hardships and sorrows on those dependent on the wage-earner. The misery and pain attendant on the loss of jobs then could be avoided if there be acceptance of the view that under all circumstances of this case, petitioners should not be deprived of their means of livelihood. Nor is this to condone what had been done by them. For all this while, since private respondent considered them separated from the service, they had not been paid. From the strictly juridical standpoint, it cannot be too strongly stressed, to follow Davis in his masterly work, Discretionary Justice, that where a decision may be made to rest on informed judgment rather than rigid rules, all the equities of the case must be accorded their due weight.[17]Given the environmental circumstances of this case, the acts of petitioner clearly do not constitute serious misconduct as to justify his dismissal. Neither is his dismissal justified on ground of loss of confidence. As a ground for dismissal, the term "trust and confidence" is restricted to managerial employees.[18] We share the view of the Solicitor General that petitioner is not a managerial employee. Before one may be properly considered a managerial employee, all the following conditions must be met:
(1) Their primary duty consists of the management of the establishment in which they are employed or of a department or sub-division thereof;Further, it is the nature of the employee’s functions, and not the nomenclature or title given to his job, which determines whether he has rank-and-file, supervisory or managerial status.[20] Petitioner describes his functions as District Sales Manager as follows:
(2) They customarily and regularly direct the work of two or more employees therein;
(3) They have the authority to hire or fire other employees of lower rank; or their suggestions and recommendations as to the hiring and firing and as to the promotion or any other change of status of other employees are given particular weight.[19]
"The office of a District Sales Manager’s primary responsibility is to achieve or surpass the sales and profit targets for each territory in the assigned district through: (a) efficient planning; (b) management function; and (c) auditing and control. "Management action," on the other hand, means to direct the activities of the Professional Medical Representatives [by]: (1) [making] decisions that are compatible with district, national and corporate objectives; (2) [directing] the activities of representative through - (a) frequent field visits (must spend at least 80% of working days in a quarter, allocating eight (8) working days per PMR/quarter excluding travel time); (b) written communications; (c) sales meetings – (3) [training] PMRs in medical/product knowledge; (4) [motivating] and [developing] PMRs toward greater productivity; (5) [acting] as a channel between field and home office; (6) [maintaining] records as basis for quick analysis of the district performance; (7) [overseeing] special projects assuring the cost benefit value of such benefit; (8) x x x suggesting to sales management new ideas, methods, devices to increase productivity of sales district or individual properties; and [insuring] safe custody and proper maintenance of all company properties (e.g. company cars, audio-visuals).[21]The above job description does not mention that petitioner possesses the power "to lay down policies nor to hire, transfer, suspend, lay off, recall, discharge, assign or discipline employees." Absent this crucial element, petitioner cannot be considered a managerial employee despite his designation as District Sales Manager.
Anent the monetary claims of complainant for payment of the holiday pay and the cash equivalent of the rice subsidy for the period April 1990 to December 1992 vis-a-vis the documentary evidence available on records (Annexes "H" and "I") this Office is inclined to deny said claims for failure of the complainant to substantially and convincingly prove the same.WHEREFORE, the instant petition is GRANTED. The Decision, dated 17 March 1995, and Resolution, dated 10 May 1995, of the NLRC in the consolidated cases of NLRC NCR-00-01-00652-94 and NLRC NCR-00-02-00887-94 are REVERSED and SET ASIDE. The Decision, dated 25 August 1994, of the labor arbiter is REINSTATED.
When complainant was appointed District Sales Manager effective April 1, 1990, his salary was increased by PESOS: Two Thousand Five Hundred Only (P2,500.00) (Annex "H") in accordance with respondent’s "Salary Administrative Policy".
Again, effective January 1, 1993, complainant’s salary was increased by PESOS: One Thousand One Hundred Four, so much so that in the span of two (2) years, complainant’s salary reached the amount of Twenty Thousand Five Hundred Thirty Six (P20,536.00) Pesos which lends credence to the position of the respondent SPC that said claims for holiday pay and rice subsidy is already integrated in complainant’s salary.[24]