519 Phil. 409
CARPIO, J.:
Mercury did not accept Serrano's resignation. Instead, Mercury issued a notice on 11 January 2002 requesting Serrano to appear before the Investigation Committee [5] composed of three management and three rank-and-file employees. [6]Nov. 5, 1991
Dear Sir Mateo,
I'm sorry to informed [sic] you that one of my customer[s] buy me [sic] 10 caps Squalene S at around 5:00 PM. I did not g[i]ve him the OR tape knowingly that the money he gave was exact on the item he buy [sic].
I was temp [sic] to do this, because he gave me exact amount on the item [sic]. But unknowingly, the customer came [back] after 30 minutes and asked for the invoiced [sic]. I get the money inside my pocket and issued him an official receipt. [sic]
Then Mr. Mateo talked to me about this. So, I voluntarily tender my resignation effective Nov. 6, 1991.(signed)Zenaida Serrano
On November 2, 1991, at about 2:45 P.M. Nympha de los Santos chanced upon Zenaida Serrano at the back of the RX section of the Mercury Drug-Recto Soler Branch while the latter was transferring money which were folded into small squares ("maliliit at tupi-tupi") from her pocket into her wallet. x x xMercury sent Serrano a letter dated 18 March 1992 terminating her employment effective 19 March 1992.x x x x
Also two (2) pharmacy assistants told Mr. Rolando A. Mateo, Branch Manager, that they saw Mrs. Serrano placing folded money in her wallet. x x x On November 5, 1991, [Mateo] went out of the branch store and enlisted the assistance of a mason and two (2) students x x x [and] gave them instructions to buy at Mercury Drug-Recto Soler Branch. The student to whom he gave P100.00 went to buy at 4:30 P.M. and he returned with his purchases duly receipted. After about 30 minutes the mason with P120.00 went to buy Squalene x x x and he returned with the goods without a receipt. He reported to Mr. Mateo that he was not given a receipt. Mr. Mateo returned to the branch after he instructed Mr. Alfonso Teresa, the mason, to follow after a while, look for the pharmacy assistant who attended to him and ask for a receipt. Upon his arrival at the branch Mr. Mateo advised Mr. Antonio Concepcion, Retail Supervisor, that a customer was not issued a cash register tape and will return to ask for an official receipt. x x x [Mateo] told Mr. Concep[c]ion that it was Ms. Serrano who served the customer and he should observe Ms. Serrano. x x x [Teresa] arrived at the branch [and] talked with another pharmacy assistant who in turn informed Ms. Serrano that a customer was looking for her. Mr. Concepcion observed that Ms. Serrano grew pale x x x and nervous. x x x [Serrano] went to the customers counter with her hand on her pocket and told the customer "Sandali lang ho". She then tried to distract Mr. Concepcion's attention by requesting the latter to sign a refund slip but Mr. Concepcion told her to attend first to the customer who was asking for an OR. From the customers counter she bowed down near the area from the plastic bags while holding on to her pocket, then went around the shelves to the rear of the store. She returned with the P120.00 folded like cigarette and inserted the money in the edge of the sales sheet, prepared the cash slip, then dictated the amount to be punched by the cashier in the cash register.
At this point, Mr. Concepcion asked Ms. Rosalinda Nicolas if the amount was punched only after the customer came back to claim for a receipt and when the cashier replied "yes", Mr. Concepcion advised Ms. Serrano to follow him to the manager's office.Ms. Serrano on the other hand claimed that at about 5:00 P.M. she had 5 customers among them the one who bought ten (10) capsules of Squalene worth P120.00. To lessen the number of customers she handed the stock to the customer and placed the money on her "sulatan" (sales sheet). After delivering the 10 Squalene she again took customers' orders and had her sales punched. She, however, forgot about the P120.00. And while she was preparing an order worth P16,000.00 the customer came back asking for a receipt and it was only then that she recalled that she had not yet had her sales of 10 Squalene punched by the cashier.
x x x the cashier, Rosalinda Nicolas testified that the sales sheet was on the cashier's counter and that Ms. Serrano never brought it anywhere. The cashier likewise testified that the P120.00 came from her pocket, folded like a cigarette and was inserted by Ms. Serrano in her sales sheet after she went around before she prepared the cash slips. x x xx x x x
From the acts of Ms. Serrano the intention to pocket the P120.00 is evident. Firstly, she blatantly disregard[ed] the house rule against salesclerks bringing their personal money with them while in the area. Secondly, the manner in which the money was folded ("like a cigarette") shows that Ms. Serrano took time and effort to make the money easy to hide and to transfer to her wallet as she was observed to have done in several occasions. And having spent time and effort to fold the money it is unlikely that she could have forgotten it. Again the manner the money was folded is incongruous with her claim that at the time she served 4 to 7 customers. Thirdly, Ms. Serrano did not search her sales sheet when the customer came back asking for a receipt. On the other hand she was seen to have taken the money from her pocket, go around the shelves to the rear of the store and insert the money in her sales sheet only after she went back to the cashiers counter. Fourthly, if indeed the money was inserted in the sales sheet she would have seen it while dictating her other sales to the cashier. Fifth, her behavior at the time was that of a cornered guilty offender. She grew pale, "nataranta [at] paikot-ikot". She likewise tried to distract the supervisors' attention, which only shows clearly that she had something to hide. [7] (Emphasis supplied)
WHEREFORE, all the foregoing premises being considered, judgment is hereby rendered finding respondent, MERCURY DRUG CORPORATION, guilty of illegally dismissing complainant, ZENAIDA G. SERRANO, without lawful cause and due process and thus ordered to reinstate her to her previous position without loss of seniority rights and other privileges with payment of full backwages.On appeal, the NLRC reversed the Labor Arbiter and dismissed the complaint of Serrano for lack of merit.
It appearing that respondent, through its representative, adopted malicious schemes and acted in a wanton, oppressive and malevolent manner in effecting the dismissal of complainant, who was found by this Office to have been framed-up and was forced to resign, respondent therefore is liable for moral damages in the amount of Five Hundred Thousand Pesos (P500,000.00).
Likewise, for causing complainant to secure the services of a lawyer to safeguard her rights and interests, respondent should be assessed attorney's fees in the amount equivalent to ten percent (10%) of the monetary award in favor of complainant. x x x
The charge of unfair labor practice is dismissed for lack of merit.
SO ORDERED. [9]
WHEREFORE, the petition is GRANTED. The assailed Decision and Resolution of the NLRC are ANNULLED. Private respondent Mercury Drug Corporation is hereby ordered to pay petitioner Zenaida G. Serrano the following amounts:Mercury filed a motion for reconsideration which the Court of Appeals denied in its 21 October 2003 Resolution.(a) Separation Pay in the amount of P73,700.00;
(b) Full backwages from date of dismissal until the finality of this Decision, including P43,215.00 as 13th month pay; and
(c) Reduced Moral Damages in the amount of P50,000.00 and Attorney's Fees in the fixed amount of P50,000.00.
SO ORDERED. [10]
Q: | And what did you do after receiving [those] ten tablets of Squalene? |
A: | I waited. |
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Q: | And how much did you pay for those medicine[s]? |
A: | One hundred twenty (P120.00) pesos. |
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Q: | Will you please describe to us the denomination of the money you gave to Miss Serrano? |
A: | One whole hundred pesos bill and one piece twenty peso bill. |
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Q: | So, you mentioned you waited. What were you waiting at that time? |
A: | To get a receipt. |
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x x x x | |
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COURT: | When you were not given receipt, what did you do? |
| A: I went back to Grande Restaurant. |
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x x x x | |
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Q: | Upon arriving at the drugstore for the second time, what did you do, if any? |
A: | I saw one co-employee where I asked for a receipt. |
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Q: | And what was the reaction of that employee? |
A: | I pointed to her, Zenaida, that I purchased medicine from her. |
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Q: | So, upon learning that you were requesting for a receipt, what was the reaction, if any, of the accused? |
A: | She took out from her pocket the money and handed it to the cashier. |
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x x x x | |
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Q: | When you got back to Mercury Drug, did you immediately seek out Miss Serrano? |
A: | Yes, I was asked by the cashier, "Kanino ka bumili" (from whom did you buy) and I pointed to her. |
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Q: | What happened next? |
A: | She shouted, saying I am asking for a receipt. |
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Q: | Who shouted? |
A: | The other cashier, then I pointed to Miss Serrano. |
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Q: | What did that cashier shout about? |
A: | She said "Zeny, yung recibo nung bumili sa yo." (Zeny, the receipt of the one who purchased from you). |
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Q: | Did you notice where was Zenaida at that time when the cashier shouted "Zeny yung recibo"? |
A: | Farther from the cashier. |
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Q: | When you heard ... Did you see the cashier shouted at Zenaida? |
A: | Yes, mam [sic]. |
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Q: | All right, when this cashier shouted at Zenaida, did you notice if Zenaida heard the shout? |
A: | Yes. |
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Q: | What happened next after that? |
A: | She took the money out from her pocket. |
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Q: | How did you happen to see that, Mr. Witness? |
A: | I saw Zenaida got the money and gave it to the cashier. [16] (Emphasis supplied) |
This notice will afford the employee an opportunity to avail all defenses and exhaust all remedies to refute the allegations hurled against him for what is at stake is his very life and limb his employment. Otherwise, the employee may just disregard the notice as a warning without any disastrous consequence to be anticipated. Absent such statement, the first notice falls short of the requirement of due process. One's work is everything, thus, it is not too exacting to impose this strict requirement on the part of the employer before the dismissal process be validly effected. This is in consonance with the rule that all doubts in the implementation and interpretation of the provisions of the Labor Code, including its implementing rules and regulations, shall be resolved in favor of labor. [26]In this case, Mercury failed to satisfy the two-notice requirement. Mercury admits it did not issue the first notice. However, Mercury argues that if the purpose of the first notice was achieved despite the absence of the first notice, and the employee was given a chance to air his side before his termination, there is due process. [27] While Mercury issued a notice on 11 January 1992 requesting Serrano to appear at the investigation, that notice did not inform Serrano of the specific offense charged against her and that the penalty for the offense is dismissal. That Mercury conducted an investigation and gave Serrano a notice of termination prior to Serrano's dismissal did not cure the absence of the first notice required by law. [28]
ART. 277. Miscellaneous provisions. x x xSection 2, Rule XXIII, Book V of the Omnibus Rules Implementing the Labor Code provides:
(b) Subject to the constitutional right of workers to security of tenure and their right to be protected against dismissal except for a just and authorized cause and without prejudice to the requirement of notice under Article 283 of this Code, the employer shall furnish the worker whose employment is sought to be terminated a written notice containing a statement of the causes for termination and shall afford the latter ample opportunity to be heard and to defend himself with the assistance of his representative if he so desires in accordance with company rules and regulations promulgated pursuant to guidelines set by the Department of Labor and Employment. x x x
Section 2. Standards of due process: requirements of notice. — In all cases of termination of employment, the following standards of due process shall be substantially observed:I. For termination of employment based on just causes as defined in Article 282 of the Code:(a) A written notice served on the employee specifying the ground or grounds for termination, and giving to said employee reasonable opportunity within which to explain his side;
(b) A hearing or conference during which the employee concerned, with the assistance of counsel if the employee so desires, is given opportunity to respond to the charge, present his evidence or rebut the evidence presented against him; and
(c) A written notice of termination served on the employee indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.x x x x