496 Phil. 164
CALLEJO, SR., J.:
As part of the Organization Streamlining of the OM Efficiency Moves Program: For a more Responsive and Responsible Organization Structure. COG announces the new Service Account Representatives (SAR), and Service Account Specialists (SAS). This will collapse and replace the Account Executive positions outside of NCR, effective immediately. Account Executive functions and positions in NCR will be retained.That same day, September 2, 1998, Bayao and Castillo promptly filed a complaint for illegal dismissal with the NLRC, Regional Arbitration Branch, Cordillera Administrative Region, against PT&T and Delia Oficial in her capacity as manager for Baguio City.
In view of new responsibilities entrusted to the COG, such as full-blown account management functions which includes collections for agencies, Dials Plus and Data subscribers, as well as PT&T COG’s new role as PWI’s distributor of pager products and services, the need to re-define positions and responsibilities is imperative.
Please see attached for the list of SARs and SASs and their areas of coverage.
Responsibilities
The SAR and SAS positions, are created based on the responsibilities and criteria below, and will replace and enhance former AE positions in the provinces:
- SAR – Responsible for account management and collection from agencies, DIALS Plus and data subscribers; assists SAS from time to time with PWI documentation and other activities
* Maintains monthly minimum of P80,000 (net of agency commission) and 10 equivalent accounts, where a Metro agency or Dials Plus subscriber = 1 account, while a MTPCO account (due to distance) = 2 accounts.*Note: In Cebu which has several data subscribers, collector/s under Credit and Collection will be maintained.
* The SAR reports directly to the District or Zone head in his/her area.- SAS – Responsible for contracting agencies, payphone site location, Dials Plus subscribers and management of Direct Sales agents (DSA) which will comprise the sales force of PWI pagers and other services.[4]
In our previous written communications, you have been informed that you are a part of the Temporary Staff Reduction Program (TSRP) being implemented by management for a period of five and a half (5½) months in order to help ease the severe financial problems of the company.On March 31, 1999, Labor Arbiter Monroe C. Tabingan rendered a Decision in favor of Bayao and Castillo, the dispositive portion of which reads:
You are well aware that the certified bargaining representative of the rank-and-file employees, PT&T Progressive Workers Union-NAFLU-KMU (the Union) in the Notice of Strike filed before the National Conciliation and Mediation Board (NCMB), raised as one of the grounds thereof the TSRP implemented by management.
The notice of strike culminated in the signing of an agreement between the management and the Union wherein it was agreed among others that the eighty (80) employees who would not be recalled will be paid the following:While you are not part of the bargaining unit, management is extending to you the same separation package under S.O. No. 98-15 and NCMB Agreement between management and the union dated 30 September 1998, provided we receive a formal letter from you applying for the Staff Reduction Program package. Please submit said letter on or before 15 November 1998. Payments shall be released only upon receipt of said letter.…
“2. The grant of financial assistance equivalent to one and one half month inclusive of the one half month pay previously offered by management to the 80 employees who will be separated;
“3. The payment of separation pay for every year of service to the 80 employees to be identified by the union, and shall be paid under the same terms and conditions as provided under the extended VSRP.”
Your separation from the company is effective on 31 August 1998. (Please see attached guidelines for details.)
It really pains us to separate you from the company but it is a necessary measure we have to take to ensure the survival of the company.[5]
WHEREFORE, premises all duly considered, it is hereby found that the Complainants were constructively dismissed. In view thereof, the Respondent is hereby ordered to:PT&T and Oficial interposed their appeal to the NLRC. On October 12, 1999, the NLRC issued its Resolution[7] dismissing the appeal and affirmed the decision of the Labor Arbiter, deleting, however, the award of legal interest, exemplary damages, indemnity and attorney’s fees for lack of merit. PT&T and Oficial filed a motion for partial reconsideration, but the same was denied.[8] The matter was elevated to the CA by way of a petition for certiorari.SO ORDERED.[6]
- Reinstate the said complainants to their former position without loss of seniority rights and benefits;
- Pay their full backwages from the time of their dismissal to their actual reinstatement, or on payroll, with legal rate of interest thereon until the same shall have been fully paid, computed as of even date at SIXTY THOUSAND NINE HUNDRED PESOS (P60,900.00) each;
- Pay to each of the complainant the amount of TWENTY THOUSAND PESOS (P20,000.00) as and by way of exemplary damages;
- Pay to each of the complainant the amount of SIX THOUSAND PESOS (P6,000.00) as and by way of indemnity for failure of the respondent to observe due process; and,
- Pay an attorney’s fee equivalent to 10% of the total monetary award.
The threshold issue to be resolved in the present recourse is whether or not the retrenchment program implemented by petitioner PT&T is valid.
- WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT REVIEWING THE CORRUPTED FINDINGS OF THE NLRC AND THE LABOR ARBITER DECLARING HEREIN PRIVATE RESPONDENTS TO HAVE BEEN ACTUALLY, EFFECTIVELY AND CONSTRUCTIVELY DISMISSED.
- WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT REVIEWING THE DEBASED FINDINGS OF THE NLRC AND THE LABOR ARBITER DECLARING THE RETRENCHMENT PROGRAM ILLEGAL.
- WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN CONCLUDING THAT THE THIRTY (30) DAYS NOTICE TO THE DEPARTMENT OF LABOR AND EMPLOYMENT AND TO THE EMPLOYEES AFFECTED IS ALSO REQUIRED EVEN IN A CASE OF TEMPORARY RETRENCHMENT.
- WHETHER OR NOT THE HONORABLE COURT OF APPEALS ERRED IN NOT DELETING THE AWARD FOR BACKWAGES DESPITE ITS CLEAR PRONOUNCEMENT THAT RESPONDENTS WERE NOT ABLE TO PROVE BAD FAITH ON THE PART OF PETITIONERS IN DISMISSING THEM FROM THE SERVICE.[11]
Art. 283. Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Department of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least one (1) month pay or to at least his one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or to at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year.From the foregoing, in order that retrenchment due to serious business losses may be validly exercised, the following requisites must concur: (a) necessity of the retrenchment to prevent losses, and proof of such losses; (b) written notice to the employees and to the DOLE at least one (1) month prior to the intended date of retrenchment; and (c) payment of separation pay equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher.[14]
Article 283 speaks of a permanent retrenchment as opposed to a temporary lay-off as is the case here. There is no specific provision of law which treats of a temporary retrenchment or lay-off and provides for the requisites in effecting it or a period or duration therefor.[29]The petitioners’ adherence to the above pronouncement of the Court is misplaced. The particular issue involved in the said decision was the duration of the period of temporary lay-off, and not the compliance with the one month notice requirement. Reading the entire paragraph of the quoted portion of the decision would readily show what it was referring to, thus:
This provision, however, speaks of a permanent retrenchment as opposed to a temporary lay-off as is the case here. There is no specific provision of law which treats of a temporary retrenchment or lay-off and provides for the requisites in effecting it or a period or duration therefor. These employees cannot forever be temporarily laid-off. To remedy this situation or fill the hiatus, Article 286 may be applied but only by analogy to set a specific period that employees may remain temporarily laid-off or in floating status. Six months is the period set by law that the operation of a business or undertaking may be suspended thereby suspending the employment of the employees concerned. The temporary lay-off wherein the employees likewise cease to work should also not last longer than six months. After six months, the employees should either be recalled to work or permanently retrenched following the requirements of the law, and that failing to comply with this would be tantamount to dismissing the employees and the employer would thus be liable for such dismissal.[30]Nowhere can it be found in Sebuguero that the one month notice may be dispensed with. On the contrary, the Court, speaking through now Chief Justice Hilario G. Davide, Jr., emphasized the mandatory nature of the said notice, to wit:
The requirement of notice to both the employees concerned and the Department of Labor and Employment (DOLE) is mandatory and must be written and given at least one month before the intended date of retrenchment. In this case, it is undisputed that the petitioners were given notice of the temporary lay-off. There is, however, no evidence that any written notice to permanently retrench them was given at least one month prior to the date of the intended retrenchment. The NLRC found that GTI conveyed to the petitioners the impossibility of recalling them due to the continued unavailability of work. But what the law requires is a written notice to the employees concerned and that requirement is mandatory. The notice must also be given at least one month in advance of the intended date of retrenchment to enable the employees to look for other means of employment and therefore to ease the impact of the loss of their jobs and the corresponding income. That they were already on temporary lay-off at the time notice should have been given to them is not an excuse to forego the one-month written notice because by this time, their lay-off is to become permanent and they were definitely losing their employment.[31]The Court further emphasized therein that –
There is also nothing in the records to prove that a written notice was ever given to the DOLE as required by law. GTI's position paper, offer of exhibits, Comment to the Petition, and Memorandum in this case do not mention of any such written notice. The law requires two notices one to the employee/s concerned and another to the DOLE not just one. The notice to the DOLE is essential because the right to retrench is not an absolute prerogative of an employer but is subject to the requirement of law that retrenchment be done to prevent losses. The DOLE is the agency that will determine whether the planned retrenchment is justified and adequately supported by facts.[32]Interestingly enough, the evidence on record indicates that respondents Bayao and Castillo were not merely temporarily laid-off. The October 26, 1998 Letter of Del Rosario addressed to the respondents clearly stated that the latter were to be considered separated from the company effective August 31, 1998 and that they were each being extended a separation package.[33] In the said letter, Del Rosario even showed signs of consoling the respondents stating that: “It really pains us to separate you from the company but it is a necessary measure we have to take to ensure the survival of the company.”[34]