Atty Padua Labor Reln Cases

7/30/2019 Atty Padua Labor Reln Cases

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FIRST DIVISION

LBC DOMESTIC FRANCHISE CO., G.R. No. 162577Petitioner,

Present:

PUNO, C.J., Chairperson,- versus - SANDOVAL-GUTIERREZ,

CORONA,AZCUNA, andGARCIA,JJ.

RUSSEL E. FLORIDO,Respondent. Promulgated:

August 17, 2007X ------------------------------------------------------------------------------------------- X

DECISION

AZCUNA,J.:

This is a petition for review[1]seeking the nullification of the Decision and Resolution rendered by the Court ofAppeals (CA) on November 20, 2003 and March 5, 2004, respectively, in CA-G.R. SP No. 79079 entitled LBC DomesticFranchise Company v. National Labor Relations Commission (Second Division) and Russel E. Florido.

The facts are as follows:[2]

Respondent Russel E. Florido was employed by petitioner LBC Domestic Franchise Company on September 51989. From being an Account Executive, he was promoted through the years until he became the companys VicePresident for Operations receiving a monthly salary of P25,000.

In November of 1999, a committee was formed for the purpose of preparing petitioners Christmas giveawaysto its employees. Before Yvonnie Platon, President of petitioner company, left for the United States, a committee

meeting was held and it was decided that each employee would receive a ham that will cost P300. Respondenvolunteered to find a supplier of the hams, thus saying: Ako ay may kilala, ako na lang.[3]Platon agreed andentrusted the task to respondent. She likewise designated respondent as the companys Officer-in-Charge.

Platon returned to the Philippines in time for the company Christmas party. At the party, the hams weredistributed to the employees. An additional twenty (20) hams were likewise ordered by the company and deliveredby respondent.

Meanwhile, the company employees were grouped by teams, and each team was allotted representationexpense. From their petty cash, Arnel Fajardo and the QCT Katipunan Team advanced the respective amountsof P3,960 andP4,752. The corresponding receipts supporting the claim for the reimbursement of the cash advancesmade by the latter indicated: FLORIDO TRADING, meat dealer.

On February 11, 2000, while respondent was in the middle of a Team Leaders/Branch Managers meeting, hewas served with a memorandum from petitioners Board Chairman, Mr. Carlos R. Araneta. He was being directed togo on vacation leave and consume all his remaining leave credits, and in the meantime, he shall turn over all hisaccountabilities to Mr. Gene Santos, an officer of the company. Respondent reluctantly complied with the order.Platon, upon the other hand, was summoned by Mr. Araneta to explain the receipts prepared and signed byrespondent for the liquidation of cash advances in connection with the purchase of the hams, as well as the receiptsfor the Fundador Brandy giveaways.

On March 6, 2000, Platon issued a memorandum requiring respondent to submit a written explanation, asfollows:
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It was brought to my attention by our Chief Accountant that the official receipts you used inliquidating the amount of P92,700 and P6,000 representing the purchase of 320 pieces of PurefoodsFiesta Ham as Christmas giveaways to our employees were that of TOBS Meat Supply.

It was further noted that the handwritings in the said receipts were yours and you yourselfsigned the said official receipts as the authorized personnel to issue the same.

We would like to be clarified why instead of Purefoods receipts, the above-mentioned receiptswere the ones used in liquidating the said expenses and why is it that you were the one who issuedand signed the same

In addition to the foregoing, the Chief Accountant likewise brought to my attention the twoother receipts allegedly issued by a FLORIDO TRADING in the amount of P3,960 and P4,752.

The receipt for P3,960 was used by Mr. Arnel Fajardo in liquidating the purchase of ten (10)bottles of Fundador Brandy while the other receipt for P4,752 was used by QCT Katipunan inliquidating their purchase of twelve (12) bottles of the same kind of liquor as giveaways. Since the tworeceipts were without Tax Identification Numbers, hence, not registered with the BIR, Mr. Fajardo andKatipunan Team were asked on the receipts source and were informed that it was you who issuedthe same.

We would like to be clarified why you issued the said receipt and why it was not registered withthe BIR

Kindly submit your reply within forty eight (48) hours from receipt of this memo.

On March 8, 2000, respondent replied, as follows:

1. I proposed the supply of the product under my name. The company, after careful evaluationof the proposal, approved it exclusively because the price is low compared to prevailingmarket price. The approval does not carry any requirement as to receipt to be used orcompany who should supply both product and receipt.

2. Pursuant to the approved offer, I delivered the Purefoods Fiesta hams products and thecompany received the products without any complaint whatsoever, a clear admission of

strict compliance of both offer and acceptance.

3. I got fully paid for the delivered products by Ms. Pearlie Tobias, LBC-DFC Finance Officer, whohad cash advanced the payment for these hams.

4. The receipt was in the name of Tobs Meat Supply because I was authorized by the same toact for and in his behalf.

5. Relative to the Fundador issue, I have not offered [and] neither the company ordered from methe Fundador brandies. I supplied these liquors through individual orders by therepresentatives of the concerned teams which by itself is strictly personal and private amongemployees and myself.

6. I have no contract with LBC-FDC for this purpose. Payments for these liquors represent cashadvances by these employees.

7. These orders were ordered by them because my price was way below the prevailing marketprice of the liquor. The personnel who ordered the Fundador brandies knew fully wellbeforehand that I cannot issue receipts because I ordered these Fundador brandies in [the]black market which is the reason why the price was very low.

8. Hence, I issued Florido Trading receipts for this purpose.

With this explanation, I hope that the company will be clarified and extend to me the rightsrightfully belonging to me under the law by lifting the suspension and allowing me to resume myemployment immediately with backwages.


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Respondent reported to work on March 10, 2000 but he was prohibited from entering the General AviationCompound of the Manila International Airport. The security guard on duty showed him a communication frompetitioner dated February 11, 2000 advising the Manila International Airport Authority (MIAA) that respondent will nolonger be reporting to the company so that his pending application for the renewal of his MIAA ID/Pass should becancelled.

On March 15, 2000, a meeting with respondent in the nature of a formal investigation of the matter wasarranged by Platon at Seaside Restaurant. Platon allegedly informed respondent that he could bring a legal counseto the meeting but respondent came to the meeting by himself. At the meeting, respondent reminded Platon that hehad informed her of his offer to look for a supplier of ham, and that his proposal/quotation was approved by themanagement, the same having been e-mailed earlier to Ms. Liza Berenguer, Vice-President for Finance. Respondenadded that it was not uncommon for the employees of petitioner to undertake similar transactions with the latter.

On March 16, 2000, respondent was dismissed by petitioner for breach of trust and confidence. Consequently,respondent filed a complaint for illegal dismissal with the Regional Arbitration Branch of the National Labor RelationsCommission (NLRC) in Quezon City.[4]

On February 19, 2002, declaring that petitioner overreacted to the report made by its Chief Accountantregarding the receipts submitted by respondent for liquidation purposes, the Labor Arbiter rendered a Decisionfinding petitioner guilty of illegal dismissal:

WHEREFORE, premises considered, judgment is hereby rendered, declaring the dismissal of thecomplainant as illegal and ordering the respondent as follows:

1. To reinstate complainant to his former position or substantially equivalent position withoutloss of seniority rights, benefits and other privileges;

2. To pay complainant the sum of Six Hundred Fifty Seven Thousand Five Hundred SixtyFour and 19/100 (P657,564.19) pesos, representing his backwages from the time of hisdismissal up to the date of this decision;

3. To pay complainant the amount of Five Hundred Thousand (P500,000.00) Pesos by way ofmoral damages;

4. To pay complainant the amount of Three Hundred Thousand (P300,000.00) Pesos by wayof exemplary damages;

5. To pay complainant attorneys fees equivalent to ten (10%) percent of the total monetaryaward;

6. Should reinstatement be no longer possible, to pay complainant separation pay of one(1) month salary for every year of service. SO ORDERED.[5]

Petitioner appealed to the NLRC and on April 28, 2003, the Second Division promulgated a Decisionaffirming in toto the Labor Arbiters Decision. The pertinent portions of the Decision read:

As we have discussed above, there must be evidence to sustain the basis for the allegedbreach of the trust and confidence in an employee. Without which, such ground would be usedindiscriminately in trampling the rights of workers to their security of tenure.

. . .

We now proceed to the issue of questionable receipts being raised by the respondents. Wefind and so hold that this matter was satisfactorily explained by the complainant that he wasauthorized by the proprietor of Tobs Meat Supply, Mr. Edmund Jumuad. Furthermore, the affidavitexecuted by the latter gives the reason for the use of his receipts We find nothing unusual [or]irregular with the transaction. After all, Mr. Jumuad had a hand in the delivery of the hams. In theabsence of any controverting evidence which is obtaining in the instant case, We would even findthat the transaction benefited the respondent company for getting the maximum worth of its money.
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With respect to the receipts issued for the liquor (Fundador Brandy), We agree with the

complainant that he never had any transaction with the respondent company. If any, the transactionwas made personally with co-workers who wanted to procure the said liquor at a low price. We,therefore, find no evidence to support such a conclusion of loss of trust and confidence on the partof the complainant as claimed by the respondent.

On the matter of the award of damages [a] careful evaluation of the records showed thatat the time the complainant was suddenly issued a written order to consume all his vacation leavecredits he was conducting a meeting or conference with the companys branch managers. The saidorder did not mention any reason why he was being directed to take his leave and consume allleaves available at that time. It, however, stated, among others, that he should surrender all hisaccountabilities to another officer of the company. It needs no stretching of the imagination thatsuch situation had created mixed thoughts and/or speculations in the minds of the said branchmanagers and other employees as well. These thoughts are either of sympathy or ridicule. Either way,it necessarily caused worries and anxieties in the mind of complainant being in the dark as to why hewas suddenly asked to surrender all his accountabilities and take a leave. This is made even worsewhen on the following day, February 11, 2000, respondent communicated to the Manila InternationalAirport Authority (MIAA) and requested that the application of complainant for his renewal of his gatepass [be denied as] the complainant will no longer be reporting to the said office. To Our mind, thishas effectively sealed the complainants fate with respondents without even the benefit of dueprocess. We, therefore, find and so hold that there is sufficient basis to sustain the award of damagesto complainant.

. . .

WHEREFORE, the instant appeal is DISMISSED for lack of merit and the decision appealed fromis AFFIRMED en toto. SO ORDERED.[6]

Petitioners motion for reconsideration having been denied, the case was elevated to the CA.

On November 20, 2003, the CA rendered a Decision modifying the Decisions of the Labor Arbiter and theNLRC but only with respect to the award of damages, thus:

We now proceed to the issue of damages awarded to private respondent. The NLRCsustained the award of moral and exemplary damages, as well as attorneys fees, in view of the

attendant circumstances which it held showed bad faith on the part of petitioners officers whounceremoniously served a memo on private respondent ordering him to consume his remainingvacation leave credits while he was in the middle of a seminar/conference for branch managers. Thesudden and unexplained cancellation of his access to the MIAA General Aviation Compound andrenewal application of ID/Control Pass, which effectively prevented him from performing his usualduties, amounted to virtual termination and the subsequent memo requiring him to submit his writtenexplanation to the charges against him followed by a summary meeting/hearing and culminating inhis dismissal within a span of only a few days clearly demonstrated bad faith and oppressiveexercise of management prerogative towards private respondent who is a ranking managerialemployee. The Labor Arbiter thus noted that such knee-jerk reaction on the part of petitionersofficers resulted in the unjustified dismissal of private respondent for an unfounded charge whichcaused extreme anxiety and embarrassment to private respondent.

We do not agree.

Exemplary and moral damages are proper when the dismissal of an employee is attended bybad faith or fraud, or constitutes an act oppressive to labor in a manner contrary to morals, goodcustoms, or public policy. It is basic that for moral damages to be awarded, the claimant mustsatisfactorily prove its factual basis and causal connection with the respondents acts.[7]

In this case, however, We fail to conclude that the officers of petitioner company acted in amalevolent or oppressive manner in the course of investigating the questionable receipts submittedby private respondent to liquidate the cash advance used for payment of the hams purchased byhim. Admittedly, he signed those receipts but made it appear as the true signature of the owner.Since upon initial inquiry made by the Chief Accountant, it was discovered that the Tobs Meat Supplydid not officially issue the two (2) receipts in the regular course of business while the receipts for the


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Fundador Brandy did not bear a Tax Identification Number (TIN) and hence also unofficial, there[was] reasonable basis for the petitioner to investigate further and act to protect its interest. Privaterespondent was given the opportunity to explain his side, which though belatedly done bypetitioners officers, due process was accorded said employee. And even if private respondent wassubsequently disallowed access to the MIAA and his Control ID/Pass renewal application revoked, thiswas made at the time the matter was being investigated and does not by itself constituteharassment.

Clearly, the award of moral and exemplary damages [is] not proper in this case. Likewise, ithas been held that attorneys fees are not recoverable where there is no sufficient showing of badfaith on the part of petitioner-employer.[8]

WHEREFORE, premises considered, the present petition is hereby PARTLY GIVEN DUE COURSE.The challenged Decision dated April 28, 2003 and Resolution dated July 31, 2003 of the NLRC arehereby AFFIRMED with MODIFICATION in that the award of moral and exemplary damages, as well asattorneys fees, is hereby DELETED.

No pronouncement as to costs. SO ORDERED.[9]

Petitioner contends that:[10]

1. The Court of Appeals erred in ruling that the dismissal for loss of trust and confidence did not havereasonable factual basis;

2. The Court of Appeals erred in ruling that the imposition of the penalty of dismissal on respondent forfalsifying the receipts is too harsh; and

3. The Court of Appeals erred in sustaining the award of reinstatement and full backwages inrespondents favor.

Petitioner argues, as follows:

Firstly, respondent was dishonest, thus, his termination was with just cause. He profited out of the clandestinetransactions in question. He attempted to hide his identity as the real supplier of the hams by submitting to thecompany, which he is supposed to protect, falsified receipts;

Secondly, respondent effectively transacted business with the company of which he is the Vice-Presidentthrough his subordinates when he sold Fundador Brandy to them. He is claiming that such transactions were purelyprivate between him and the company employees. This contention is untenable because the payments therefowere to be eventually shouldered by the company. That is precisely the reason why the receipts which he issued forthe payments of the bottles of brandy were submitted to the company for the corresponding liquidation processRespondent, therefore, transacted business with the company through his subordinates over whom, wittingly orunwittingly, he undeniably exercised moral ascendancy in doing so. This was evidently unethical, a seriousmisconduct that justifies the termination of his employment. His submission of the receipts for the brandy without a TaxIdentification Number (TIN), in violation of the company requirement which he knew very well, added to the gravityof his undesirable actions;

Thirdly, based on jurisprudence, the employer is allowed a wide latitude in terminating the employment of amanagerial employee for loss of trust and confidence, then it follows that petitioner be given a wider latitude in

dismissing respondent who was not a mere managerial employee but somebody holding the second highest positionin the company as Vice-President;

Fourthly, the penalty of termination is not harsh considering respondents position in the company;

Finally, since respondent was dismissed with just cause and with due process, the order of reinstatement andbackwages is oppressive to petitioner.

In termination cases, the burden of proof rests upon the employer to show that the dismissal is for a valid andjust cause. Failure to do so would necessarily mean that the dismissal was not justified, and, therefore, was illegal.[11] Iis sufficient to show by substantial evidence that the employee is guilty of misconduct which makes the latterunworthy of the trust and confidence demanded by his position.[12]
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Both the NLRC and the CA found that petitioner failed to establish that the dismissal of respondent from hisposition was justifiable. Absent any showing of arbitrariness and evidence to the contrary, the Court will not disturbthe conclusion shared by the NLRC and the CA.

The Court agrees that the penalty of dismissal imposed upon respondent is disproportionate to the allegedinfraction committed by the latter. As aptly explained by the CA:[13]

In this case, We find no such reasonable basis to conclude that private respondent hasbreached the trust reposed in him by petitioner whose claim that he had purposely or knowinglyconcealed his identity as the real supplier of the hams was not supported by substantial evidence.Evidence submitted by private respondent clearly showed [that] it was really TOBS Meat Supplyowned by Jumuad who supplied the Purefoods Fiesta hams since if not for the latters contact as ameat dealer, private respondent could not have procured those hams at the price fixed by themanagement committee who agreed to his suggestion/proposal to make the purchase in behalf ofthe company. Hence, We cannot give credence to petitioners contention at this stage that thedismissal of private respondent was justified since petitioner-employer had reasonable basis for theloss of trust and confidence in said managerial employee. Besides, for the allegedly suspicious act ofaffixing a false signature on the questioned receipts covering an otherwise regular and fair salestransaction on behalf of the company, the extreme penalty of dismissal from service is rather tooharsh. It has been held that where a penalty less punitive would suffice, whatever missteps that mayhave been committed by the worker ought not to be visited with a consequence so severe such as adismissal from employment.[14]

As shown by the records, respondent had been a competent and loyal employee of the company which isthe reason why he was promoted several times until he became the Operations Manager. Also, taking into accountrespondents length of service to the company, the penalty of dismissal is not commensurate with his allegedmisconduct.[15]

Moreover, the mere fact that respondent was a managerial employee did not give unbridled discretion forpetitioner to remove him from his job on the ground of loss of confidence. InMaglutac v. NLRC,[16]this Court declaredthat while an employer has its own interests to protect, and pursuant thereto, it may terminate a manageriaemployee for a just cause, such prerogative to dismiss or lay off an employee must be exercised without

abuse of discretion. Its implementation should be tempered with compassion and understanding. The employershould bearin mind that in the execution of said prerogative, what is at stake is not only the employees position but

his livelihood. The fact that one is a managerial employee does not by itself exclude him from the protection of theconstitutional guaranty of security of tenure.

Respondent did not appeal from the CA decision.

In any case, with regard to the award of moral and exemplary damages and attorneys fees, the Courtagrees with the CA that the same are not recoverable under the circumstances. Respondent failed to show thatpetitioners action to terminate his employment was done in bad faith.

The finding that the employee had been wrongfully dismissed does not automatically warrant an award ofmoral and other damages. An award of moral damages cannot be justified solely upon the premise that theemployer fired his employee without just cause or due process. Additional facts must be pleaded and proven for thegrant of moral damages under the Civil Code. There must be a showing that the dismissal was attended by bad faith

or fraud, or was oppressive to labor, or done in a manner contrary to morals, good customs, or public policy, and thatsocial humiliation, wounded feelings, grave anxiety and mental anguish resulted therefrom.[17]

Likewise, exemplary damages may be awarded only if the dismissal was shown to have been effected in awanton, oppressive or malevolent manner.[18] In the same vein, attorneys fees are not recoverable absent anysufficient evidence of bad faith on the part of the employer.[19]

WHEREFORE, the petition is DENIED. The Decision and Resolution of the Court of Appeals on November 202003 and March 5, 2004, respectively, in CA-G.R. SP No. 79079 are hereby AFFIRMED.

No costs. SO ORDERED.
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THIRD DIVISION

PHILIPPINE LONG DISTANCE G.R. No. 143688TELEPHONE COMPANY,

Petitioner, Present:

Ynares-Santiago,J. (Chairperson),- versus - Austria-Martinez,

Chico-Nazario,Nachura, andReyes,JJ.

BELINDA D. BUNA,Respondent. Promulgated:

August 17, 2007x ---------------------------------------------------------------------------------------- x

DECISION

YNARES-SANTIAGO,J.:

This is a petition for review on certiorari under Rule 45 assailing the Decision[1]of the Court of Appealsdated February 28, 2000 which annulled and set aside the Decision [2]and Order[3]of the National Labor RelationsCommission (NLRC) dated May 25, 1998 and October 12, 1998, respectively, as well as its Resolution[4]dated June 52000 denying the motion for reconsideration.

The facts of the case are as follows.

Respondent Belinda D. Buna was an employee of petitioner Philippine Long Distance Telephone Company(PLDT). She last held the position of Service Representative in the PLDT Business Office in Pasay City from 1993 to1996, handling applications for service subscriptions involving telephone lines with prefix numbers 831, 832, 833and 834.

Sometime in 1995, a certain Engr. Danilo Castillano complained about unauthorized overseas calls

amounting to P40,000.00 involving his telephone line with number 847-5330. Upon investigation by the PLDT QualityControl and Inspection Division (QCID), it was established that Castillanos phone line was originally denominated as833-2661 under the name of Olivia L. Eduarte. It was supposed to be inactive since its disconnection on January 26,1984. But Eduarte purportedly wrote PLDT in June 1993 and requested that the line be transferred to CastillanoRespondent processed the request and recommended its approval. Thus, telephone number 833-2661 wassubsequently changed to 847-5330 and a telephone unit was installed in Castillanos home address.

When asked about the alleged letter request, Eduarte denied having written the same and maintained thatthe signature therein is not hers.[5] For his part, Castillano admitted that he purchased the rights over the subjectphone subscription for P40,000.00 from a certain Chito, an employee ofPLDT.[6] He subsequently identified Chito as Ramoncito Buna, respondents husband and a former employee oPLDT. On January 17, 1996, PLDT Management sent an Inter-Office Memo[7]to respondent asking her to explain whyshe should not be dismissed from service for her complicity in the anomalous transaction.

In her explanation,[8]respondent admitted that she processed the request and recommended the approvaof the transfer of the subscription to Castillano on the basis of Eduartes alleged letter request dated June 211993. She also submitted an affidavit[9]purportedly executed by Castillano dated December 11, 1995, where thelatter reiterated his complaint for the unauthorized charges; absolved Ramoncito Buna of complicity in the irregulartransfer; and admitted knowing Ramoncito.[10]

However, Castillano subsequently submitted a certification [11]dated February 26, 1996 denying execution othe affidavit presented by respondent. He claimed that the signature in said affidavit was not his as well as theresidence certificate therein.

In view of this, PLDT sent a Notice[12]of termination of respondents services effective March 15, 1996.
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Respondent filed a complaint for illegal dismissal with claims for back wages, benefits, damages andattorneys fees against PLDT. After due proceedings, Labor Arbiter Ricardo C. Nora rendered a Decision[13]findingrespondents dismissal legal and justified, thus, her complaint was dismissed for lack of merit.

Buna appealed to the NLRC which affirmed the dismissal in a Decision[14]dated May 25, 1998.

Respondents motion for reconsideration was denied; hence, she filed a petition for certiorari under Rule 65 ofthe Rules of Court before the Court of Appeals. The petition was initially denied due course[15]on grounds that themotion for reconsideration was filed before the NLRC only on July 22, 1998 or 10 days late, and the petition focertiorari before the Court of Appeals was likewise filed out of time. It was filed on February 3, 1999 while the last dayfor filing the petition was on January 12, 1999.

However, upon motion for reconsideration, the petition for certiorari was given due course.

On February 28, 2000, the Court of Appeals rendered a decision in favor of respondent Buna, the dispositiveportion of which reads:

WHEREFORE, in view of the foregoing, the instant petition is hereby GIVEN DUE COURSE, andthe writ prayed for GRANTED. Consequently, the assailed Decision of the National Labor RelationsCommission dated May 25, 1998 and its Order dated October 12, 1998 in NLRC-NCR CA No. 013470-97 are hereby ANNULLED and SET ASIDE. Respondent Philippine Long Distance and Telephone Co. ishereby ordered to reinstate petitioner Belinda D. Buna to her former position without loss of seniorityrights and to pay her full back wages, inclusive of allowances, other benefits and privileges or theirmonetary equivalent computed from the time her compensation was withheld from her up to thetime of actual reinstatement.

No pronouncement as to costs. SO ORDERED.[16]

PLDTs motion for reconsideration was denied. Hence, the instant petition raising the following issue:

WHETHER OR NOT THE COURT OF APPEALS COMMITTED GRAVE ERROR IN GRANTING BUNAS PETITIONFOR CERTIORARI AND IN SETTING ASIDE THE DECISION OF THE NATIONAL LABOR RELATIONSCOMMISSION WHICH HAD ALREADY ATTAINED FINALITY WHEN RESPONDENT FAILED TO COMPLY WITHTHE MANDATORY PERIODS NOT ONLY ONCE BUT TWICE.[17]

PLDT claims that the Court of Appeals no longer had jurisdiction to entertain respondent Bunas petition since

the latter failed to seasonably file the motion for reconsideration of the NLRC Decision within the 10-day reglementaryperiod. PLDT asserts that even assuming that the remedy of filing a special civil action of certiorari was available torespondent, it will not prosper because it was also filed beyond the 60-day reglementary period. PLDT avers that theDecision rendered by the Court of Appeals is null and void for having been rendered without jurisdiction.

Respondent maintains that she had no participation in the irregular transfer of Eduardos subscription toCastillano. She contends that the charge against her is merely a ruse and an attempt by PLDT to evade thepayment of the benefits due her in the form of redundancy pay.

The petition is impressed with merit.

Section 1, Rule 65 of the Rules of Court clearly states that in order to avail of the special civil actionof certiorari,one must be left with no appeal, nor any plain, speedy, and adequate remedy in the ordinary course o

law, to wit:

SECTION 1. Petition for Certiorari. When any tribunal, board or officer exercising judicial orquasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse ofdiscretion amounting to lack or excess of jurisdiction, and there is no appeal, nor any plain, speedy,and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verifiedpetition in the proper court, alleging the facts with certainty and praying that judgment be renderedannulling or modifying the proceedings of such tribunal, board or officer, and granting suchincidental reliefs as law and justice may require.

x x x x. (Emphasis supplied)
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A motion for reconsideration of an assailed decision is deemed a plain and adequate remedy expresslyavailable under the law.[18] The general rule is that a motion for reconsideration is indispensable before resort to thespecial civil action of certiorari to afford the court or tribunal the opportunity to correct its error, if any.[19] Failure to filea motion for reconsideration with the NLRC before availing of the special civil action of certiorari is a fatainfirmity.[20] This rule is subject to certain recognized exceptions, to wit:

a) where the order is a patent nullity, as where the court a quo has no jurisdiction;b) where the questions raised in the certiorari proceedings have been duly raised and passed upon

by the lower court, or are the same as those raised and passed upon in the lower court;c) where there is an urgent necessity for the resolution of the question and any further delay would

prejudice the interests of the Government or of the petitioner or the subject matter of the petition isperishable;

d) where, under the circumstances, a motion for reconsideration would be useless;e) where petitioner was deprived of due process and there is extreme urgency for relief;f) where, in a criminal case, relief from an order of arrest is urgent and the granting of such relief by

the trial court is improbable;g) where the proceedings in the lower court are a nullity for lack of due process;h) where the proceeding was ex parte or in which the petitioner had no opportunity to object; and,i) where the issue raised is one purely of law or where public interest is involved.[21]

None of these exceptions are present in the instant case. As such, respondents failure to timely file a motionfor reconsideration of the decision of the NLRC rendered such decision final and executory. Consequently, recourseto the Court of Appeals was no longer feasible or available.

Respondent received the NLRC Decision on July 2, 1998, hence she had 10 days or until July 12, 1998 withinwhich to move for its reconsideration. However, the motion for reconsideration was filed only on July 22, 1998. Amotion for reconsideration filed out of time is a pro forma motion which does not toll the running of the reglementaryperiod.[22] Moreover, in the absence of a motion for reconsideration filed within the reglementary period, the assailedorder, resolution, or decision of the NLRC becomes final and executory.

At any rate, even on the merits, respondents cause must fail. In finding that respondent was illegallydismissed, the Court of Appeals ruled that although PLDT may have proven that there was an irregularity in thetransfer of the subject phone line, it failed to establish that respondent had something to do with it.

We do not agree.

Respondent was dismissed from employment on the ground of loss of trust and confidence. Loss of trust andconfidence, as a valid ground for dismissal, must be substantiated by evidence. Respondent is not a mere rank-andfile employee but a confidential employee. In fact, her position as a Service Representative is classified as HighPriority. She does not only screen and process telephone applications but also recommend them for approval. Shelikewise handles the transfer of subscriptions from existing clients to new applicants. Her job entails the observance oproper company procedures relating to the evaluation and subsequent recommendation of prospective clients toPLDT. Her assessment of the fitness of such applicants is relied upon by PLDT in giving its approval to the subscriptionapplications which in turn results in a client-provider relationship between PLDT and its subscribers. Thus, her jobinvolves a high degree of responsibility requiring a substantial amount of trust and confidence on the part of PLDT.

Jurisprudence has distinguished the treatment of managerial employees or employees occupying positionsof trust and confidence from that of rank-and-file personnel, insofar as the application of the doctrine of trust andconfidence is concerned. InCruz, Jr. v. Court of Appeals,[23]the Court had occasion to explain as follows:

Thus, with respect to rank-and file personnel, loss of trust and confidence as ground for validdismissal requires proof of involvement in the alleged events in question, and that mereuncorroborated assertions and accusations by the employer will not be sufficient. But as regards amanagerial employee, the mere existence of a basis for believing that such employee has breachedthe trust of his employer would suffice for his dismissal. Hence, in the case of managerial employees,proof beyond reasonable doubt is not required, it being sufficient that there is some basis for such lossof confidence, such as when the employer has reasonable ground to believe that the employeeconcerned is responsible for the purported misconduct, and the nature of his participation thereinrenders him unworthy of the trust and confidence demanded by his position. (Emphasis supplied)
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There is substantial evidence showing that there was valid cause for PLDT to dismiss respondents employmenfor loss of trust and confidence. By her own admission, she processed the irregular transfer of phone subscription toCastillano on the basis of a letter request from Eduarte, which proved to be a forgery.

In the sworn statement dated December 4, 1995, Castillano admitted that he bought the subject telephoneline from a certain Chito whom he later identified in a line -up presented before him as Ramoncito Bunarespondents husband. Although there were three other affidavits allegedly executed by Castillano absolving thespouses from any participation in the anomalous transaction, none of these documents refuted the certificationCastillano issued on February 26, 1996 where he denied authorship of the affidavit dated December 11, 1995 whichwas attached by respondent to her explanation.

Moreover, Castillano knew respondents husband and was in fact identified by the latter as the one who soldto him the phone line for P40,000.00. The transfer was facilitated and completed through respondent since thephone number was under her scope of authority.

As correctly pointed out by the Labor Arbiter and subsequently upheld by the NLRC:

Under the circumstances, we are convinced that complainant was involved in effecting theunauthorized transfer x x x. We take particular note of the fact that the spurious letter request was infavor of someone known to her husband. To us, it is more than pure coincidence that the beneficiaryof complainants act of processing for approval the fake letter request, would be someone known toher husband.Said Mr. Castillano, on the other hand, has never denied having purchased thetelephone line for P40,000, a highly irregular transaction. And in the investigation at the QCIDon December 4, 1995, Mr. Castillano, in a face to face confrontation with Mr. Buna, pointed to thelatter as the PLDT employee who sold to him the line of Ms. Eduarte for P40,000. and in order that thesame could be transferred to the former, the fake letter request of Ms. Eduarte was processed andrecommended for approval by the complainant. Clearly, the confluence of events point to thecomplainant as a necessary and indispensable participant in a chain of irregularities intended toillegally transfer a telephone from the original owner to Mr. Ca stillano, a friend of complainantshusband x x x.[24](Emphasis supplied)

Based on the foregoing, we find that loss of trust and confidence, as a ground for termination, has beenclearly established. InAzul v. Banco Filipino Savings and Mortgage Bank,[25]we upheld the employees dismissadespite lack of proof of actual participation in the anomalous activities because his actuations had sown in hisemployer the seed of mistrust and loss of confidence, thus:

While, indeed, it was not proved that he was the one who made the irregular entries on the tickets,the fact that he did not lift a finger at all to determine who it was is a sad reflection of his job. In fact,even if the petitioner had no actual and direct participation in the alleged anomalies, his failure todetect any anomaly in the passage tickets amounts to gross negligence and incompetence, whichare, likewise, justifiable grounds for his dismissal. Be that as it may, to our mind, it is no longer necessaryto prove the petitioners direct participation in the irregularity, for what is material is that his actuationswere more than sufficient to sow in his employer the seed of mistrust and loss of confidence.

The aforesaid ruling likewise applies to respondent because of her questionable involvement in themanipulation of company records to facilitate the transfer of a telephone line which was obtained through highlyirregular means. Her participation was essential to the consummation of the anomalous transaction.

WHEREFORE, the petition is GRANTED. The February 28, 2000 Decision of the Court of Appeals declaring

respondents dismissal as unlawful and the June 5, 2000 Resolution denying the motion for reconsiderationare REVERSED and SET ASIDE. The May 25, 1998 Decision of the National Labor Relations Commission affirming theLabor Arbiters Decision dated April 21, 1997 dismissing the complaint for lack of merit, and the October 12, 1998Order denying the motion for reconsideration, are REINSTATED and AFFIRMED.

SO ORDERED.


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Manila

THIRD DIVISION

AKLAN COLLEGE, INCORPORATED and G.R. No. 152949

MSGR. ADOLFO P. DEPRA,

Petitioners, Present:

YNARES-SANTIAGO,J.,

Chairperson,

- versus - AUSTRIA-MARTINEZ,

CHICO-NAZARIO,

NACHURA, and

REYES,JJ.

RODOLFO P. GUARINO, Promulgated:

Respondent. August 14, 2007

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

D E C I S I O N

AUSTRIA-MARTINEZ,J.:

Before the Court is a petition for Review on Certiorari under Rule 45 of the Rules of Court filedby Aklan College, Incorporated (ACI) and Msgr. Adolfo P. Depra (Msgr. Depra) assailing the Decision[1]of theCourt of Appeals (CA) dated March 9, 2001, and its Resolution[2]of April 5, 2002 in CA-G.R. SP No. 54035.

The undisputed facts, as summarized by the CA, are as follows:

Private respondent Guarino was first hired in 1972 as an instructor by petitioner College.

In 1974, private respondent was appointed as Acting Dean of the Commerce and SecretarialDepartment.

On November 26, 1990, he was again appointed by the petitioner as Acting Personnel Director, in

addition to his duties as acting dean. His appointment as Acting Personnel Director was in atemporary basis and until it is revoked by the President or Rector of the College. (Annex A,Rollo, 32)

A year after, private respondent went on leave for one year from November 4, 1991 upto November 4, 1992.

On October 20, 1992, private respondent wrote the petitioner through its Rector informing thelatter of his intention of reassuming his positions with the petitioner college.

However, in petitioners response, it informed private respondent that he cannot anymorereassume his former position as Acting Dean of the Commerce and Secretarial Department becausehe is not qualified for the position.
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Then, on November 10, 1992, petitioner formally informed private respondent that the Board ofTrustees of the petitioner college has decided not to allow him to reassume his position as ActingDean for the reason that he has not qualified to continue holding the position and that the position ofActing Personnel director has already been filled up by a regular incumbent.

Hence, on November 11, 1992, private respondent filed the instant case for illegal dismissal againstpetitioner with the office of the Department of Labor in Kalibo, Aklan.[3]

On May 24, 1994, the Labor Arbiter (LA) handling the case rendered judgment dismissing the complaint fo

lack of merit.

Rodolfo P. Guarino (respondent) filed an appeal with the National Labor Relations Commission(NLRC). On March 9, 1995, the NLRC rendered a Decision reversing the LA, with thefollowing dispositive portion:

WHEREFORE, the respondents are hereby ordered to pay the complainant separation pay for hidischarge from the position of Dean of Commerce and Secretarial Science, equivalent to one month pay foevery year of service, a fraction of six months being considered one year.

The respondents are further ordered to reinstate the complainant in his position as personneldirector with full backwages from the time his salaries were withheld from him until his actualreinstatement, and as instructor without backwages.

The respondents are furthermore ordered to pay the complainant 10% of the monetary awards asattorneys fees.

Other claims are hereby DISMISSED for lack of sufficient evidence.

Complainant's monetary awards up to March 10, 1995 are (sic) P149,955.85 computed as follows:

I Separation Pay as Dean

P4,395.50 x 17 years ------ P74,723.50

II Backwages as Personnel Director

(Nov. 10, 1992-March 10, 1995)

P2,200 x 28 months

Sub-total

III 10% ATTORNEYS FEES

Grand total

------

------

------

P61,600.00

P136, 323.50

P13,632.35

P149,955.85

SO ORDERED.[4]

Aggrieved by the Decision of the NLRC, petitioners filed a special civil action for certiorari with theCA. On March 9, 2001, the CA rendered judgment denying the petition and affirming the assailed decision othe NLRC.[5] Petitioners Motion for Reconsideration was subsequently denied by the CA in its Re solution

dated April 5, 2002.[6]
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Hence, herein petition with a sole Assignment of Error, to wit:

THE COURT OF APPEALS COMMITTED GRAVE ABUSE OF DISCRETION IN DISREGARDING THE WELL-SETTLEDDOCTRINE LAID DOWN IN LA SALETTE OF SANTIAGO, INC. v. NLRC, 195 SCRA 80 [1991] THAT NO EMPLOYEEATTAINS A SECOND SECURITY OF TENURE TO AN ADMINISTRATIVE POSITION.[7]

Petitioners contend that it is not a disputed fact that, during his employment with petitioner ACI, respondenheld three concurrent positions: those of an instructor, Acting Dean of the Commerce Department andActing Personnel Director; what petitioners refused to give back to respondent when he was sent a letter

dated November 10, 1992 were his positions as Acting Dean and Acting Personnel Director; respondent wasnever stripped of his position as an instructor. Citing the case of La Salette of Santiago, Inc. v. National LaboRelations Commission,[8]petitioners assert that while an employee attains security of tenure as a member othe teaching staff of a private educational institution from which he could only be removed for cause, hecannot always aspire for a second tenure in an administrative position and can, therefore, be stripped of thisposition by the appointing power without the latter being held responsible for illegal dismissal. Petitionerargue that when private respondent was not allowed to re-assume his former administrative positions asActing Dean and Acting Personnel Director but was still considered as an instructor and was even prodded toresume his teaching responsibilities, he could not be considered as having been il legally dismissed.

Petitioners further argue that there was no law or agreement which gave respondent additional tenure asdean; that his appointment as dean in a regular capacity was made dependent on his graduation with adegree of Master in Business Administration (MBA), as this is a requirement imposed by DECS Order No. 5Series of 1990 as well as the Manual of Regulations for Private Schools; that petitioner was not able to finish hisMBA which compelled petitioner ACI to withhold the position from him.

Petitioners also aver that respondents appointment as Dean and Personnel Directo r was only in anacting but never in a regular capacity. Citing various rulings of this Court, petitioners contend that a bonafide appointment in an acting capacity is essentially temporary and revocable in character and the holderof such an appointment may be removed anytime even without hearing or cause.

On the other hand, respondent argues that petitioners reliance onLa Salette is misplaced, as the factuacircumstances obtaining therein are materially different from those in the present case. Respondencontends that in La Salette, the complainant therein was appointed to various administrative positions for adefinite or fixed term, while in the present case respondent was appointed as dean not for a fixed durationbut for an indefinite period. In addition, respondent claims that by continuously serving as Deanof ACIs Commerce and Secretarial Department for more than 17 years, his assumption of the said officecould not be considered as temporary. He claims that while he was not formally appointed as dean, he haacquired security of tenure as such pursuant to the provisions of Article 280 of the Labor Code.[9]

The Court finds the petition meritorious.

Respondents termination as Acting Personnel Director is valid.

The factual milieu in La Saletteis similar to the present case insofar as respondents position as PersonneDirector is concerned. In La Salette, the respondent therein occupied different administrative positions invarious capacities every so often and for a period not exceeding three years. For three years, she was theprincipal of La Salette Jones High School. For the next three years she worked as teacher and Subject AreaCoordinator of a sister school, La Salette of Santiago. Thereafter, for seven years, she was employed as a fulltime instructor in still another sister corporation, La Salette College; and for two years of that period, sheserved as the Head of the Department of Education and Liberal Arts. After which, for three years, she waassigned as Assistant Principal of the High School Department of La Salette of Santiago, concurrently with hework as part-time instructor in La SaletteCollege. For the last two years of her connection with theLa Salette School System, she was designated as High School Principal of La Salette of Santiago. On thismatter, the Court held as follows:

What is immediately apparent from this second look at the material facts is that while Clarita Javiers workas teacher in the La Salette School System was more or less continuous, or was evidently intended to be on apermanent basis, her assignment in one administrative office or another-i.e., as high school principal, subjecarea coordinator, head of a college department, assistant principal- was not. In these administrative postsshe served in a non-permanent capacity, either at the pleasure of the school or for a fixed term. She couldnot but have become aware of the pattern in her employment relationship with her employer, of the duality
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in the nature of her employment, particularly of the non-permanent character of her stints in theadministrative positions to which she was designated.

There was therefore no cause for her to believe that security of tenure could be obtained by her inany of the administrative positions she held at one time or another. On the contrary, thetemporariness of her occupancy of those administrative offices must have become quite apparent toher, in light of the facts. x xx[10]

In the present case, it is not disputed that respondent was appointed as Acting Personnel Directo

on November 26, 1990. He went on leave for one year from November 4, 1991 until November 4, 1992, aftewhich he was no longer allowed to re-assume his administrative posts. Having assumed the position ofPersonnel Director in an acting capacity, respondent could not reasonably have expected that he hadacquired security of tenure.

Moreover, in La Salette, the respondents appointment to the various administrative positions she held werenot even in an acting capacity. Yet this Court held that she never attained security of tenure with respect tothese positions. In the present case,with all the more reason should respondent not expect that he hagained security of tenure, considering that his appointment was only in an acting capacity.

This Court has held that an acting appointment is merely temporary, or one which is good until anotheappointment is made to take its place.[11] And if another person is appointed, the temporary appointeeshould step out and cannot even dispute the validity of his successors appointment.[12] The undisturbedunanimity of cases is that one who holds a temporary appointment has no fixed tenure of office; hisemployment can be terminated anytime at the pleasure of the appointing power without need to show thait is for cause.[13]

Insofar as the principles governing permanent and temporary appointments are concerned, this Courfinds the ruling in the more recent case of Achacoso v. Macaraig[14]relevant andinstructive. WhileAchacoso served as the jurisprudential basis in cases involving the issue of security of tenurein career executive service positions in the government, this Court finds the rules on permanent andtemporary appointments enunciated therein applicable to the present case.

This Court held inAchacoso that a permanent appointment can be issued only to a person who meetsall the requirements for the position to which he is being appointed; a person who does not have the requisitequalifications for the position cannot be appointed to it in the first place or, only as an exception to the rule,may be appointed to it merely in an acting capacity in the absence of persons who are qualified; thepurpose of an acting or temporary appointment is to prevent a hiatus in the discharge of official functions byauthorizing a person to discharge the same pending the selection of a permanent or another appointee; theperson named in an acting capacity accepts the position under the condition that he shall surrender theoffice once he is called upon to do so by the appointing authority.[15]

Consistent with the rulings in La Salette,Achacoso and the other cases cited above, respondent could nohave attained security of tenure with respect to his position as Personnel Director of ACI. His termination asuch is valid.

On the other hand, the factual circumstances are different with respect to respondents appointmen t asActing Dean of ACIsCommerce Department. In the present case, respondent was allowed to occupy theposition of Acting Dean for a continuous period of 17 years, more or less, beginning in 1974 until he went onleave on November 4, 1991. Unlike the private respondent in LaSalette, herein respondents term as actingdean remained uninterrupted. In fact, there was not even any showing that he was handed any re-appointment paper or made to sign a renewal contract regarding the said position.

Nonetheless, the Court finds respondents termination as Acting Dean also valid for the following reasons:

Petitioners assert that under DECS Order No. 5, Series of 1990, as well as Section 41 of the Manual ofRegulations for Private Schools, the acquisition of a Masters degree has been made a requirement before aperson can be appointed as Dean of an undergraduate program.

Article IV (1) (1.2) of DECS Order No. 5, Series of 1990, provides for the following minimum qualifications fothe position of chairman, dean or director of a schools accounting program, to wit:

a. Holder of a CPA certificate issued by the Professional Regulation Commission;
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b. Holder of at least a masters degree in business, accountancy, or business educat ion;c. Teaching experience of at least three (3) years;d. The ability to lead and gain the confidence and respect of the faculty.

However, the Court finds that petitioners erred in relying upon the above-quoted provisions of DECS OrderNo. 5, Series of 1990, as its basis in dismissing respondent as the Acting Dean of its Commerce Departmentbecause the said Order specifically applies only to the position of chairman, dean or director of a schoolsAccounting Department. Moreover, petitioners failed to refute respondents contention in his Position Papethat the Department of Commerce to which he was assigned consists of many fields of study other than

accounting.

The Court also notes that the Manual being referred to by petitioners is the 1992 Manual of Regulations forPrivate Schools (8th Edition). The 1992 Manual took effect at the beginning of the summer session o1993.[16] Prior to its effectivity, what was in force was the 1970 Manual of Regulations (7th Edition). The allegedillegal dismissal of respondent took place on November 10, 1992. At the time of the dismissal, what was ineffect was the 1970 Manual. Hence, it should have been the 1970 Manual, and not the 1992 Manual, thapetitioners cited as their basis in dismissing respondent from his position as Acting Dean.

In any case, it must be pointed out that like the 1992 Manual, the 1970 Manual requires that a Dean of anundergraduate program must have acquired an appropriate graduate degree. Paragraph 69 of the 1970Manual provides:

69. Administrative and supervisory officials should have the following minimum qualifications, dulysupported by credentials on file with the school.

a. For principal of primary and/or intermediate schools, a holder of a Bachelor's degree in ElementaryEducation or equivalent with three years of successful teaching experience in the elementary grades.

b. For principal of secondary schools, a holder of a Bachelor of Science in Education degree orequivalent with three years of successful teaching experience in the high school.

c. College dean, a holder of an appropriate graduate degree with at least three years of successfulcollege teaching experience.

d. Dean of the Graduate School, a holder of an appropriately earned doctorate degree with at leastthree years of successful graduate school teaching experience. (emphasis supplied)

Both the 1970 and 1992 Manuals were promulgated by the Department of Education, Culture and Sports(now, Department of Education) in the exercise of its rule-making power as provided for under Section70[17]of Batas Pambansa Blg. 232, otherwise known as the Education Act of 1982. As such, these Manualshave the force and effect of law.[18]

Since the 1970 Manual imposes minimum requirements that must be complied with before a personcan be appointed as a college dean, petitioner ACI is duty-bound to comply with theserequirements. Otherwise, it runs the risk of incurring administrative sanctions from DECS.[19] In the presencase, the fact that respondent was retained as an acting dean for 17 years did not give him a vested right tooccupy in a permanent capacity the position to which he was appointed. Neither do his long years oservice confer upon him the requisite qualifications which he does not possess. Not being a masters degreeholder, he was never and could never have been appointed in a permanent capacity, as he is not qualifiedunder the law. Thus, pursuant to the 1970 Manual, respondents dismissal as acting dean of ACIs CommerceDepartment is valid.

Respondents appointment as dean of petitioners Commerce Department was also in an actingcapacity. Hence, the Court finds the rulings in La Salette andAchacoso, which were earlier discussedapplicable.

The Court is not persuaded by respondents contention that petitioner ACI is estopped from assailingrespondents qualification since it allowed the latter to continue occupying the position of acting dean fomore than 17 years despite the said requirement being imposed by the DECS.

In the present case, the employment of respondent as Acting Dean is contrary to the express provisionsof the 1970 Manual. It is settled that estoppel cannot give validity to an act that is prohibited by law, or one
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that is against public policy.[20] Neither can the defense of illegality be waived.[21] Hence, respondentappointment as Acting Dean can never be deemed validated byestoppel.

Moreover, respondent cannot deny that he is aware of the fact tha t a masters degree in businessadministration is required of a person who is appointed to the position of ACIs Dean of Commerce. He nevedisputed petitioners' contention in their Answer/Position Paper[22]filed with the Labor Arbiter that he wasindeed aware of this requirement. In fact, it was in his Memorandum-Proposal addressed to the Rector of ACdated May 26, 1972[23]that respondent suggested that ACI grant him financial assistance so that he can goto graduate school and take up MBA. ACI acted favorably on his suggestion and awarded him a scholarship

grant less than a month after the said Memorandum-Proposal was submitted.

In addition, one of the conditions imposed by petitioners upon respondent in their Scholarship andEmployment contract was for him to serve as Dean of its Commerce Department after he finished hisMBA. Despite the opportunity given him, respondent still failed to obtain an MBA. Nonetheless, respondenwas still allowed to retain his position as Acting Dean. Under the foregoing circumstances, especially in lighof the requirements imposed by law, petitioners extension of respondents appointment can be consideredsimply as an act of grace on the part of the former and may not be interpreted as a change of status fromtemporary to permanent. If the intention of the petitioners was to make respondent s appointmenpermanent, they would have done so by executing a different appointment paper considering the fact thatthe original appointment was of a temporary nature.

Moreover, the provisions of Article 280 of the Labor Code are not applicable to the present case especiallywith respect to the issue of respondent's acquisition of security of tenure. It is settled that questions respectinga private school teachers entitlement to security of tenure are governed by the Manual of Regulations foPrivate Schools and not the Labor Code. Paragraph 75[24]of the 1970 Manual (now Section 93[25]of the 1992Manual) lays down the requisites before a teacher can be considered as having attained a permanentstatus and therefore entitled to security of tenure. In La Salette, the Court was clear in ruling that, unliketeachers (assistant instructors, instructors, assistant professors, associate professors, full professors) who aspirefor and expect to acquire permanency, or security of tenure, in their employment as faculty membersteachers who are appointed as department heads or administrative officials (e.g., college or departmensecretaries, principals, directors, assistant deans, deans) do not normally, and should not expect to, acquire asecond status of permanency or an additional or second security of tenure as such officer. In the instantcase, it is not disputed that respondent was never removed from his position as instructor. He was onlydismissed from his capacity as Acting Dean and Acting Personnel Director.

As to respondents right to procedural due process, this Court has held that there is no need of a notice tothe acting appointee or any form of hearing.[26] Such procedural requirements apply where the officer isremovable only for cause.[27] This Court reiterates the rule that a bona fide appointment in an actingcapacity is essentially temporary and revocable in character and the holder of such appointment may beremoved anytime even without hearing or cause.[28]

As to respondents entitlement to separation pay, the settled rule is that separation pay is the amount thaan employee receives at the time of his severance from the service and is designed to provide the employeewith the wherewithal during the period that he is seeking another employment.[29] In the present case, whilerespondent was no longer allowed to return to his positions as Acting Dean and Acting Personnel Director hewas, nonetheless, retained as an instructor. Hence, he could not be deemed as separated from the servicebecause his employment as instructor remains.

On the other hand, if respondent chose to seek another employment as there is no showing in the presentcase that he returned to his position as instructor, petitioners should not be faulted and made to suffer theconsequence of respondent's decision. In such a case he is deemed to have voluntarily resigned. Settled isthe rule that an employee who voluntarily resigns from employment is not entitled to separation pay unless,however, there is a stipulation for payment of such in the employment contract or Collective BargainingAgreement, or payment of the amount is sanctioned by established employer practice or policy.[30] There isno proof to show that the present case falls under any of the above-enumerated exceptions. Hence, theCourt finds no cogent reason to award him separation pay.

WHEREFORE, the instant petition is GRANTED. The Decision of the Court of Appeals dated March 9, 2001 inCA-G.R. SP No. 54035, which affirmed the Decision of the National Labor Relations Commission, FourthDivision, Cebu City in NLRC Case No. V-0261-94 is REVERSED and SETASIDE. The Labor Arbiter's Decision datedMay 24, 1994 in RAB Case No. 0210-AKLAN-92 (06-11-700045-92), dismissing respondents complaint for lack omerit, is REINSTATED. No costs. SO ORDERED.
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SECOND DIVISION

LAGONOY BUS CO., INC./ NYMPHA O. BUENCAMINO,

Petitioners,

G.R. No. 165598

- versus -

COURT OF APPEALS (former Fourth Division), JOSE B.CARIO, LORENZO FERMANO, ELEUTERIO P. PADIN, JR.,MELVIN F. MORALEDA, LEYNARD O. ALVAREZ, BENJAMINRINGANATE, JR., LORETO B. CONCINA, REY B.OLIVER, JR., and RUPERTO O. REBUYA, JR.,

Respondents.

Present:

QUISUMBING,J., Chairperson,

CARPIO,

CARPIO MORALES,

TINGA,and

VELASCO, JR., JJ.

Promulgated:

August 14, 2007

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DECISION

QUISUMBING, J.:

Assailed by petition for review on certiorari are both the Decision[1]dated April 28, 2004 andthe Resolution[2]datedSeptember 27, 2004, of the Court of Appeals in CA-G.R. SP No. 71240. The Court ofAppeals had reinstated the decision[3]of the Labor Arbiter who declared respondents dismissal illegal andordered petitioners to pay respondents their full backwages and separation pay.

Petitioner Lagonoy Bus Co., Inc. (LBCI) is a transportation company which commenced operations inSeptember 1991. It was headed by Reynaldo D. Buencamino as President and General Manager (oldLBCI). Reynaldo is the husband of petitioner Nympha O. Buencamino.

On various dates, LBCI hired respondents Jose B. Cario, Lorenzo Fermano, Eleuterio P. Padin, Jr.Melvin F. Moraleda, Leynard O. Alvarez, Benjamin Ringanate, Jr., Loreto B. Concina, Rey B. Oliver, Jr., andRuperto O. Rebuya, Jr., in different capacities as bus driver, alternate driver, bus conductor, and businspector, respectively.

Meanwhile, LBCI obtained a loan from the Rural Bank of Nabua, Inc., with AlfredoF. Odiamar, Nymphas father, as co-maker/borrower. When LBCI defaulted, the bank filed a case for a sumof money with damages.
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On June 4, 1997, LBCI temporarily ceased operations following the attachment of its rolling stocksConsequently, it terminated respondents services without notice and separation pay. To settle the caseAlfredo paid the loan as evidenced by a compromise agreement.

On July 4, 1997, the bus company (hereafter, the new LBCI) resumed operations under themanagement of Nympha. It also rehired respondents on probationary basis. Sometime in December 1997and January 1998, respondents were dismissed for failing to meet the company standards.[4] Respondentsfiled separate complaints for illegal dismissal with claims for separation pay, backwages and damages.

For their part, petitioners specified dishonesty and loss of confidence as additional grounds to dismissrespondents.[5]

On January 15, 2001, the Labor Ar

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