THIRD DIVISION
[ G.R. No. 169712, March 14, 2008 ]MA. WENELITA TIRAZONA v. CA +
MA. WENELITA TIRAZONA, Petitioner, vs. COURT OF APPEALS, PHILIPPINE EDS-TECHNO SERVICE INC. (PET INC.) AND/OR KEN KUBOTA, MAMORU ONO and JUNICHI HIROSE, Respondents.
D E C I S I O N
MA. WENELITA TIRAZONA v. CA +
MA. WENELITA TIRAZONA, Petitioner, vs. COURT OF APPEALS, PHILIPPINE EDS-TECHNO SERVICE INC. (PET INC.) AND/OR KEN KUBOTA, MAMORU ONO and JUNICHI HIROSE, Respondents.
D E C I S I O N
CHICO-NAZARIO, J.:
Assailed in this Special Civil Action for Certiorari[1] under Rule 65 of the Rules of Court are the Decision[2] and Resolution[3] of the Court of Appeals dated 24 May 2005 and 7
September 2005, respectively, in CA-G.R. SP No. 85065. The appellate court's Decision dismissed petitioner Ma. Wenelita Tirazona's Special Civil Action for Certiorari and affirmed the Decision[4] dated 30 January 2004 of the National Labor Relations
Commission (NLRC) in NLRC CA No. 034872-03, which ruled that petitioner's dismissal from employment was legal; and its Resolution which denied petitioner's Motion for Reconsideration.
The factual and procedural antecedents of the case are as follows:
Private respondent Philippine EDS-Techno Services Inc. (PET) is a corporation duly registered under Philippine laws and is engaged in the business of designing automotive wiring harnesses for automobile manufacturers. Private respondents Ken Kubota, Mamoru Ono and Junichi Hirose are all Japanese nationals, the first being the President and the latter two being the directors of PET.
On 21 July 1999, PET employed Ma. Wenelita S. Tirazona (Tirazona) as Administrative Manager. Being the top-ranking Filipino Manager, she acted as the liaison between the Japanese management and the Filipino staff.
On 15 January 2002, Fe Balonzo, a rank-and-file employee, wrote a letter[5] that was addressed to nobody in particular, but was later acquired by PET management. In her letter, Balonzo complained that Tirazona humiliated her while she was reporting back to work after recuperating from a bout of tuberculosis. Balonzo explained that Tirazona insinuated, in a manner loud enough to be heard from the outside, that Balonzo still had the disease. This allegedly occurred despite Balonzo's possession of a medical clearance that proved her fitness to return to work. Balonzo thus requested that the necessary action be undertaken to address the said incident.
Upon receiving the letter, the PET management directed Tirazona to file her comment. Tirazona replied accordingly in a letter[6] wherein she denied the accusations against her. Tirazona stated that her only intention was to orient Balonzo about the latter's rights as a sick employee, i.e., that under the law, if the latter planned to resign, the company can give her separation pay. Tirazona likewise asked for an independent investigation and threatened to file a libel case against Balonzo for allegedly trying to destroy her reputation and credibility.
After weighing the situation, PET director Ono sent a memorandum to Tirazona, which reads:
Because of Tirazona's obstinate demand for compensation, PET sent her a Notice of Charge,[9] which informed her that they were considering her termination from employment by reason of serious misconduct and breach of trust. According to the management, they found her letter libelous, since it falsely accused the company of finding her guilty of the charges of Balonzo and depriving her of due process.
On 26 March 2002, Tirazona explained in a letter[10] that her counsels' demand letter was brought about by the denial of her repeated requests for reinvestigation of the Balonzo incident, and that the same was personally addressed to Mamoru Ono and not to the company. She also reiterated her request for an investigation and/or an open hearing to be conducted on the matter.
The PET management replied[11] that the Balonzo incident was already deemed a closed matter, and that the only issue for consideration was Tirazona's "ill-advised response to the Management's disposition to the Fe Balonzo incident," for which an administrative hearing was scheduled on 4 April 2002.
On 3 April 2002, Tirazona submitted a written demand[12] to PET that the Balonzo incident be included in the scheduled hearing. She further stated that since the management had already prejudged her case, she would only participate in the proceedings if the investigating panel would be composed of three employees, one each from the rank-and-file, supervisory, and managerial levels, plus a representative from the Department of Labor and Employment (DOLE).
The PET management rejected Tirazona's demands in a letter [13] and informed her that the hearing was reset to 10 April 2002, which would be presided by PET's external counsel.
On 10 April 2002, Tirazona and her counsel did not appear at the administrative hearing. The PET management informed them through a memorandum[14] dated 12 April 2002 that the hearing was carried out despite their absence. Nevertheless, Tirazona was granted a final chance to submit a supplemental written explanation or additional documents to substantiate her claims.
Tirazona's written explanation[15] dated 17 April 2002 merely reiterated, without further details, her previous claims, to wit: that Balonzo's charges were unfounded and baseless; that she had been denied due process; and that she would not submit herself to an investigating panel that had already prejudged her case. Tirazona also stated that her claim for damages would be justified at the proper forum, and that she admitted to reading a confidential letter addressed to PET directors Ono and Fukuoka, containing the legal opinion of PET's counsel regarding her case.
After finding the explanations unsatisfactory, PET sent Tirazona a Notice of Termination,[16] which found her guilty of serious misconduct and breach of trust because of her demand against the company and her invasion of PET's right to privileged communication.
Tirazona then instituted with the NLRC a complaint for illegal dismissal, non-payment of salaries, and damages against PET, docketed as NLRC-CA No. 034872-03.
In the Decision[17] dated 22 January 2003, Labor Arbiter Veneranda C. Guerrero ruled in favor of Tirazona, holding that the latter's termination from employment was illegal.
The Arbiter declared that there was no breach of trust when Tirazona sent the demand letter, as the same was against Ono in his personal capacity, not against the company. The decision also ruled that PET failed to discharge the burden of proving that the alleged breach of trust was fraudulent and willful, and that the company was careless in handling its communications. The Arbiter further stated that Tirazona was deprived of her right to due process when she was denied a fair hearing.
On appeal by PET, the NLRC reversed the rulings of the Labor Arbiter in a Decision dated 30 January 2004, the dispositive portion of which reads:
The Motion for Reconsideration filed by Tirazona was denied by the NLRC in a Resolution dated 31 May 2004, the dispositive portion of which reads:
In a Decision dated 24 May 2005, the appellate court affirmed the NLRC and ruled thus:
Prefatorily, the Court notes that Tirazona elevated her case to this Court via a Petition for Certiorari under Rule 65 of the Rules of Court. The appropriate remedy would have been for Tirazona to file an appeal through a Petition for Review on Certiorari under Rule 45.
For a Petition for Certiorari under Rule 65 of the Rules of Court to prosper, the following requisites must be present: (1) the writ is directed against a tribunal, a board or an officer exercising judicial or quasi-judicial functions: (2) such tribunal, board or officer has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.[22]
There is grave abuse of discretion "when there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, such as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross so as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law."[23]
The Petition for Certiorari shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration is timely filed, the sixty (60)-day period shall be counted from notice of the denial of the said motion.[24]
On the other hand, Rule 45 of the Rules of Court pertains to a Petition for Review on Certiorari whereby "a party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals x x x may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth."[25]
The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment.[26]
In the present case, the assailed Decision is the dismissal by the Court of Appeals of Tirazona's Petition for Certiorari under Rule 65. Said Decision partakes of the nature of a judgment or final order, thus, is reviewable only through an appeal by certiorari under Rule 45.
As aptly declared by the Court in National Irrigation Administration v. Court of Appeals[27]:
A review of the rollo of the Petition at bar divulges even further that Tirazona's resort to a wrong remedy was not an innocent mistake but a deliberate choice.
On 5 October 2005, Tirazona filed with this Court a Petition for Extension of Time to File a Petition for Review on Certiorari.[28] Tirazona stated therein that she received the notice of the Court of Appeals Resolution denying her Motion for Reconsideration on 23 September 2005. Since she only had fifteen (15) days after the said date to file a Petition for Review on Certiorari, or until 8 October 2005, Tirazona prayed for an extension of thirty (30) days, with her counsel citing extreme pressures of work.
In a Resolution[29] dated 19 October 2005, the Court granted Tirazona's Motion for Extension. The extended period was to end on 7 November 2005. However, Tirazona failed to file a Petition for Review on Certiorari within the said period. Instead, she filed the present Petition for Certiorari on 5 December 2005, seventy-three (73) days after notice of the Court of Appeals Resolution denying her Motion for Reconsideration.
From the foregoing, it is fairly obvious that Tirazona was aware that she was supposed to file an appeal through a Petition for Review on Certiorari under Rule 45. That she filed the instant Petition for Certiorari under Rule 65 and only after an inexplicably long period of time leads to the inescapable conclusion that the same was merely an afterthought, nothing more than a desperate attempt to revive a lost appeal.
The special civil action of certiorari under Rule 65 is an independent action that cannot be availed of as a substitute for the lost remedy of an ordinary appeal, including that under Rule 45, especially if such loss or lapse was occasioned by one's own neglect or error in the choice of remedies.[30] It also bears to stress the well-settled principle that the remedies of appeal and certiorari are mutually exclusive and not alternative or successive. Under Rule 56, Sec. 5(f) of the Revised Rules of Court, a wrong or inappropriate mode of appeal merits an outright dismissal.[31]
Tirazona, in her Reply[32] before this Court, even admits that although the instant Petition is one of special civil action of certiorari under Rule 65, her petition is in reality an appeal under Rule 45 as her petition raises pure questions of law. Tirazona herself acknowledges the formal defects of her own Petition and attributes the same to the haste and inadvertence of her former counsel, who allegedly prepared the instant Petition without her participation.[33] She thus urges this Court to suspend the application of its own rules on grounds of equity and substantial justice, considering that it is her employment that is at stake in this case.
In this regard, it needs to be emphasized that before the Court may treat the present petition as having been filed under Rule 45, the same must comply with the reglementary period for filing an appeal. This requirement is not only mandatory but also jurisdictional such that failure to do so renders the assailed decision final and executory, and deprives this Court of jurisdiction to alter the final judgment, much less to entertain the appeal.[34] Since the instant petition was filed after the lapse of the extended period for filing an appeal, the same should be dismissed outright.
Nevertheless, the Court finds it essential that we discuss the case on its merits, bearing in mind that the paramount consideration in this case is an employee's right to security of tenure, and in order to provide Tirazona the amplest opportunity to know how the Court arrived at a proper and just determination of her case.
Even if the Court were to ignore the conspicuous procedural defects committed by Tirazona and treat her Petition as an appeal under Rule 45, it still finds that the Petition must be denied for lack of merit.
Petitioner contends that, contrary to the findings of the Court of Appeals, her dismissal from employment was illegal for having lacked both a legal basis and the observance of due process.
In employee termination cases, the well-entrenched policy is that no worker shall be dismissed except for a just or authorized cause provided by law and after due process. Clearly, dismissals have two facets: first, the legality of the act of dismissal, which constitutes substantive due process; and second, the legality in the manner of dismissal, which constitutes procedural due process.[35]
Under Article 282(c)[36] of the Labor Code, loss of trust and confidence is one of the just causes for dismissing an employee. It is an established principle that loss of confidence must be premised on the fact that the employee concerned holds a position of trust and confidence. This situation obtains where a person is entrusted with confidence on delicate matters, such as care and protection, handling or custody of the employer's property. But, in order to constitute a just cause for dismissal, the act complained of must be "work-related" such as would show the employee concerned to be unfit to continue working for the employer. Besides, for loss of confidence to be a valid ground for dismissal, such loss of confidence must arise from particular proven facts.[37]
Tirazona claims that her demand letter was merely an expression of indignation by a disgruntled employee against a director, not against the company and, by itself, cannot constitute a breach of trust and confidence. The company's notice of charge allegedly insinuated Tirazona's guilt in the Balonzo incident; hence, the need to defend herself. Tirazona likewise asserts that she is an ordinary rank-and-file employee as she is not vested with the powers and prerogatives stated in Article 212(m)[38] of the Labor Code. As such, her alleged hostility towards her co-workers and the PET management is not a violation of trust and confidence that would warrant her termination from employment.
At the outset, the Court notes that the issues set forth above are factual in nature. As the Court is asked to consider the instant Petition as an appeal under Rule 45, then only pure questions of law will be entertained.[39]
A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any of them. The resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact.[40]
In the instant case, Tirazona would have the Court examine the actual wording, tenor, and contextual background of both her demand letter and the PET's notice of charge against her. Similarly, the determination of whether Tirazona is a managerial or rank-and-file employee would require the Court to review the evidence that pertains to Tirazona's duties and obligations in the company. Also, in order to ascertain whether the breach of trust was clearly established against Tirazona, the Court will have to sift through and evaluate the respective evidence of the parties as well. These tasks are not for the Court to accomplish.
The Court is not a trier of facts. It is not the function of this Court to analyze or weigh evidence all over again, unless there is a showing that the findings of the lower court are totally devoid of support or are glaringly erroneous as to constitute palpable error or grave abuse of discretion.[41]
In its assailed decision, the Court of Appeals affirmed the ruling of the NLRC and adopted as its own the latter's factual findings. Long established is the doctrine that findings of fact of quasi-judicial bodies like the NLRC are accorded with respect, even finality, if supported by substantial evidence. When passed upon and upheld by the Court of Appeals, they are binding and conclusive upon the Supreme Court and will not normally be disturbed.[42] Though this doctrine is not without exceptions,[43] the Court finds that none are applicable to the present case.
Thus, on the matter of Tirazona's demand letter, this Court is bound by the following findings of the Court of Appeals:
Tirazona's arguments are baseless.
Procedural due process is simply defined as giving an opportunity to be heard before judgment is rendered. The twin requirements of notice and hearing constitute the essential elements of due process, and neither of those elements can be eliminated without running afoul of the constitutional guaranty.[46]
The employer must furnish the employee two written notices before termination may be effected. The first notice apprises the employee of the particular acts or omissions for which his dismissal is sought, while the second notice informs the employee of the employer's decision to dismiss him.[47]
It is fairly obvious in this case that Tirazona was served with the required twin notices. The first was embodied in the Notice of Charge dated 25 March 2002 where PET informed Tirazona that it was considering her termination from employment and required her to submit a written explanation. In the said Notice, PET apprised Tirazona of the ground upon which it was considering her dismissal: (1) her letter that contained false accusations against the company, and (2) her demand for two million pesos in damages, with a threat of a lawsuit if the said amount was not paid. The Notice of Termination dated 22 April 2002 given to Tirazona constitutes the second notice whereby the company informed her that it found her guilty of breach of trust warranting her dismissal from service.
Equally bereft of merit is Tirazona's allegation that she was not given the benefit of a fair hearing before she was dismissed.
It needs to be pointed out that it was Tirazona herself and her counsel who declined to take part in the administrative hearing set by PET 10 April 2002. Tirazona rejected the company's appointment of its external counsel as the investigating panel's presiding officer, because her own demands on the panel's composition were denied. As correctly held by the NLRC and the Court of Appeals, Tirazona's stance is without any legal basis. On the contrary, this Court's ruling in Foster Parents Plan International/Bicol v. Demetriou[48] is controlling:
As a final plea for her case, Tirazona asserts that her dismissal from employment was too harsh and arbitrary a penalty to mete out for whatever violation that she has committed, if indeed there was one.
Tirazona ought to bear in mind this Court's pronouncement in Metro Drug Corporation v. NLRC[50] that:
WHEREFORE, premises considered, the instant petition is hereby DENIED for lack of merit and the Decision of the Court of Appeals dated 24 May 2005 is hereby AFFIRMED. Costs against the petitioner.
SO ORDERED.
Ynares-Santiago, (Chairperson), Austria-Martinez, Nachura, and Reyes, JJ., concur.
[1] Rollo, pp. 8-18; dated 5 December 2005.
[2] Penned by Associate Justice Bienvenido L. Reyes with Associate Justices Godardo A. Jacinto and Rosalinda Asuncion-Vicente, concurring; id. at 20-46.
[3] Id. at 47-49.
[4] CA rollo, pp. 25-35.
[5] Id. at 91.
[6] Id. at 92-94.
[7] Records, p. 62.
[8] Id. at 63.
[9] The Notice of Charge states:
[10] CA rollo, pp. 64-65.
[11] Id. at 246-249.
[12] Id. at 250.
[13] Id. at 251.
[14] Id. at 253.
[15] Id. at 242.
[16] Id. at 61.
[17] Id. at 95-104.
[18] Id. at 34.
[19] Id. at 31.
[20] Id. at 42.
[21] Id. at 45.
[22] Manila Memorial Park Cemetery, Inc. v. Panado, G.R. No. 167118, 15 June 2006, 490 SCRA 751, 762.
[23] Id. at 762-763.
[24] RULES OF COURT, Rule 65, Sec. 4.
[25] RULES OF COURT, Rule 45, Sec. 1.
[26] RULES OF COURT, Rule 45, Sec. 2.
[27] 376 Phil. 362, 371 (1999) cited in San Miguel Corporation v. Court of Appeals, 425 Phil. 951, 955 (2002).
[28] Rollo, pp. 3-4.
[29] Id. at 6.
[30] National Irrigation Administration v. Court of Appeals, supra note 27, cited in Chua v. Santos, G.R. No. 132467, 18 October 2004, 440 SCRA 365, 373.
[31] Chua v. Santos, id.
[32] Rollo, pp. 121-123.
[33] Id. at 122.
[34] People v. Sandiganbayan, G.R. No. 156394, 21 January 2005, 449 SCRA 205, 217.
[35] Shoemart, Inc. v. National Labor Relations Commission, G.R. No. 74229, 11 August 1989, 176 SCRA 385, 390, cited in Asian Construction And Development Corporation v. National Labor Relations Commission, G.R. No. 142407, 12 March 2007.
[36] Art. 282. TERMINATION BY EMPLOYER. - An employer may terminate an employment for any of the following causes:
x x x x
c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative.
[37] Jardine Davies, Inc. v. National Labor Relations Commission, 370 Phil. 310, 318-319 (1999).
[38] Art. 212(m) partially states:
[39] The rule that only questions of law may be raised in a petition for review under Rule 45 admits of certain exceptions, though none of which are present in the instant petition, namely: (1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the CA went beyond the issues of the case and its findings are contrary to the admissions of both appellant and appellees; (7) the findings of fact of the CA are contrary to those of the trial court; (8) said findings of fact are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and (10) the findings of fact of the CA are premised on the supposed absence of evidence and contradicted by the evidence on record. [Rosario v. PCI Leasing and Finance, Inc., G.R. No. 139233, 11 November 2005, citing Sarmiento v. Court of Appeals, 353 Phil. 834, 846 (1998)].
[40] Velayo-Fong v. Velayo, G.R. No. 155488, 6 December 2006, 510 SCRA 320, 329-330, cited in Binay v. Odeña, G.R. No. 163683, 8 June 2007, 524 SCRA 248, 255-256.
[41] De Jesus v. Court of Appeals, G.R. No. 127857, 20 June 2006, 491 SCRA 325, 333, citing Potenciano v. Reynoso, 449 Phil. 396, 405 (2003).
[42] San Juan De Dios Educational Foundation Employees Union-Alliance of Filipino Workers v. San Juan De Dios Educational Foundation, Inc., G.R. No. 143341, 28 May 2004, 430 SCRA 193, 205-206.
[43] Almendrala v. Ngo, G.R. No. 142408, 30 September 2005, 471 SCRA 311, 322.
[44] Rollo, pp. 38-44.
[45] Id. at 39-40.
[46] Cruz v. Coca-Cola Bottlers Phils., Inc., G.R. No. 165586, 15 June 2005, 460 SCRA 340, 351.
[47] Pono v. National Labor Relations Commission, 341 Phil. 615, 621 (1997), cited in Landtex Industries v. Court of Appeals, G.R. No. 150278, 9 August 2007, 529 SCRA 631, 652.
[48] 226 Phil. 421, 426 (1986).
[49] Philippine Airlines, Inc. v. National Labor Relations Commission, G.R. No. 87353, 3 July 1991, 198 SCRA 748, 761.
[50] 227 Phil. 121, 127 (1986), cited in Villanueva v. National Labor Relations Commission (Third Division), 354 Phil. 1056, 1063 (1998).
The factual and procedural antecedents of the case are as follows:
Private respondent Philippine EDS-Techno Services Inc. (PET) is a corporation duly registered under Philippine laws and is engaged in the business of designing automotive wiring harnesses for automobile manufacturers. Private respondents Ken Kubota, Mamoru Ono and Junichi Hirose are all Japanese nationals, the first being the President and the latter two being the directors of PET.
On 21 July 1999, PET employed Ma. Wenelita S. Tirazona (Tirazona) as Administrative Manager. Being the top-ranking Filipino Manager, she acted as the liaison between the Japanese management and the Filipino staff.
On 15 January 2002, Fe Balonzo, a rank-and-file employee, wrote a letter[5] that was addressed to nobody in particular, but was later acquired by PET management. In her letter, Balonzo complained that Tirazona humiliated her while she was reporting back to work after recuperating from a bout of tuberculosis. Balonzo explained that Tirazona insinuated, in a manner loud enough to be heard from the outside, that Balonzo still had the disease. This allegedly occurred despite Balonzo's possession of a medical clearance that proved her fitness to return to work. Balonzo thus requested that the necessary action be undertaken to address the said incident.
Upon receiving the letter, the PET management directed Tirazona to file her comment. Tirazona replied accordingly in a letter[6] wherein she denied the accusations against her. Tirazona stated that her only intention was to orient Balonzo about the latter's rights as a sick employee, i.e., that under the law, if the latter planned to resign, the company can give her separation pay. Tirazona likewise asked for an independent investigation and threatened to file a libel case against Balonzo for allegedly trying to destroy her reputation and credibility.
After weighing the situation, PET director Ono sent a memorandum to Tirazona, which reads:
On 6 March 2002, Tirazona's counsels sent demand letters[8] to PET's business address, directed separately to Ono and Balonzo. The letter to Ono states:February 8, 2002
To: Mrs. W. Tirazona
Re: Letter-Complaint of Fe S. Balonzo
This is to advise you that Management is satisfied that you did not intend to humiliate or embarrass Ms. Balonzo during the incident on January 14, 2002. It also appreciates the concern you profess for the welfare of PET employees.
Nonetheless, Management finds your handling of the situation less than ideal. Considering the sensitive nature of the issue, a little more circumspection could have readily avoided the incident which it cannot be denied caused unnecessary discomfort and hurt feelings to Ms. Balonzo. Certainly, you could have discussed the matter in private and allowed her to first deliver her piece rather than pre-empt her declaration. As it turned out, your assumption (that Ms. Balonzo would request for a leave extension) was in fact wrong and she had a medical certificate attesting her fitness to return to work.
Management therefore would like to remind you of the high expectations of your position.
Management considers this matter closed, and finds it appropriate to convey to you that it does not view with favor your notice to file legal action. Management believes that you share the idea that issues regarding employee relations are best threshed out within the Company. Resorting to legal action is unlikely to solve but on the contrary would only exacerbate such problems.
We trust that, after emotions have calmed down, you would still see it that way.
(Sgd.)
Mamoru Ono
Director[7]
February 27, 2002The letter sent to Balonzo likewise sought the same amount of damages for her allegedly baseless and unfounded accusations against Tirazona.
MR. MAMORU ONO
Director
PET, Inc.
20/F 6788 Ayala Avenue
Oledan Square, Makati City
Dear Mr. Ono:
We are writing in [sic] behalf of our client, Ms. MA. WENELITA S. TIRAZONA, Administrative Manager of your corporation.
We regret that on February 8, 2002, you delivered to our client a letter containing among others, your conclusion that Ms. Tirazona was guilty of the unfounded and baseless charges presented by Ms. Fe Balonzo in her letter-complaint dated January 15, 2002. You may please recall that in Ms. Tirazona's letter to Mr. Junichi Hirose, she presented point by point, her side on the allegations made by the complainant. In the same letter, Ms. Tirazona requested for an independent investigation of the case in order to thresh out all issues, ferret out the truth and give her the opportunity to be heard and confront her accuser. These were all denied our client.
As a result of the foregoing, Ms. Tirazona's constitutional right to due process was violated and judgment was rendered by you on mere allegations expressed in a letter-complaint to an unknown addressee.
Considering the position and stature of Mrs. Tirazona in the community and business circles, we are constrained to formally demand payment of P2,000,000.00 in damages, injured feelings, serious anxiety and besmirched reputation that she is now suffering.
We are giving you five (5) days from receipt hereof to make favorable response, otherwise, much to our regret, we will institute legal procedures to protect our client's interests.
Please give this matter the attention it deserves.
Very truly yours,
PRINCIPE, VILLANO, VILLACORTA & CLEMENTE
By:
(Sgd.)
PEDRO S. PRINCIPE
(Sgd.)
GLICERIO E. VILLANO
Because of Tirazona's obstinate demand for compensation, PET sent her a Notice of Charge,[9] which informed her that they were considering her termination from employment by reason of serious misconduct and breach of trust. According to the management, they found her letter libelous, since it falsely accused the company of finding her guilty of the charges of Balonzo and depriving her of due process.
On 26 March 2002, Tirazona explained in a letter[10] that her counsels' demand letter was brought about by the denial of her repeated requests for reinvestigation of the Balonzo incident, and that the same was personally addressed to Mamoru Ono and not to the company. She also reiterated her request for an investigation and/or an open hearing to be conducted on the matter.
The PET management replied[11] that the Balonzo incident was already deemed a closed matter, and that the only issue for consideration was Tirazona's "ill-advised response to the Management's disposition to the Fe Balonzo incident," for which an administrative hearing was scheduled on 4 April 2002.
On 3 April 2002, Tirazona submitted a written demand[12] to PET that the Balonzo incident be included in the scheduled hearing. She further stated that since the management had already prejudged her case, she would only participate in the proceedings if the investigating panel would be composed of three employees, one each from the rank-and-file, supervisory, and managerial levels, plus a representative from the Department of Labor and Employment (DOLE).
The PET management rejected Tirazona's demands in a letter [13] and informed her that the hearing was reset to 10 April 2002, which would be presided by PET's external counsel.
On 10 April 2002, Tirazona and her counsel did not appear at the administrative hearing. The PET management informed them through a memorandum[14] dated 12 April 2002 that the hearing was carried out despite their absence. Nevertheless, Tirazona was granted a final chance to submit a supplemental written explanation or additional documents to substantiate her claims.
Tirazona's written explanation[15] dated 17 April 2002 merely reiterated, without further details, her previous claims, to wit: that Balonzo's charges were unfounded and baseless; that she had been denied due process; and that she would not submit herself to an investigating panel that had already prejudged her case. Tirazona also stated that her claim for damages would be justified at the proper forum, and that she admitted to reading a confidential letter addressed to PET directors Ono and Fukuoka, containing the legal opinion of PET's counsel regarding her case.
After finding the explanations unsatisfactory, PET sent Tirazona a Notice of Termination,[16] which found her guilty of serious misconduct and breach of trust because of her demand against the company and her invasion of PET's right to privileged communication.
Tirazona then instituted with the NLRC a complaint for illegal dismissal, non-payment of salaries, and damages against PET, docketed as NLRC-CA No. 034872-03.
In the Decision[17] dated 22 January 2003, Labor Arbiter Veneranda C. Guerrero ruled in favor of Tirazona, holding that the latter's termination from employment was illegal.
The Arbiter declared that there was no breach of trust when Tirazona sent the demand letter, as the same was against Ono in his personal capacity, not against the company. The decision also ruled that PET failed to discharge the burden of proving that the alleged breach of trust was fraudulent and willful, and that the company was careless in handling its communications. The Arbiter further stated that Tirazona was deprived of her right to due process when she was denied a fair hearing.
On appeal by PET, the NLRC reversed the rulings of the Labor Arbiter in a Decision dated 30 January 2004, the dispositive portion of which reads:
WHEREFORE, judgment is hereby rendered SETTING ASIDE the Decision of the Labor Arbiter dated January 27, 2003 and a new one is entered DISMISSING the complaint for lack of merit.[18]Contrary to the Labor Arbiter's findings, the NLRC concluded that Tirazona's termination from employment was in accordance with law. It ruled that Tirazona's demand letter addressed to Ono constituted a just cause for dismissal, as the same was "an openly hostile act" by a high-ranking managerial employee against the company.[19] The NLRC likewise found that PET complied with the notice and hearing requirements of due process, inasmuch as Tirazona's demand for a special panel was without any legal basis. Furthermore, petitioner breached the company's trust when she read the confidential legal opinion of PET's counsel without permission.
The Motion for Reconsideration filed by Tirazona was denied by the NLRC in a Resolution dated 31 May 2004, the dispositive portion of which reads:
WHEREFORE, in view of the foregoing, Complainant-Appellee's Motion for Reconsideration is hereby DISMISSED for lack of merit and our Decision dated 30 January 2004 is thus AFFIRMED with finality.[20]Aggrieved, Tirazona instituted with the Court of Appeals a Special Civil Action for Certiorari under Rule 65, alleging grave abuse of discretion on the part of the NLRC, docketed as CA-G.R. SP No. 85065.
In a Decision dated 24 May 2005, the appellate court affirmed the NLRC and ruled thus:
WHEREFORE, in consideration of the foregoing, the petition is perforce dismissed.[21]Her Motion for Reconsideration having been denied by the appellate court in a Resolution dated 7 September 2005, Tirazona now impugns before this Court the Court of Appeals Decision dated 24 May 2005, raising the following issues:
In essence, the issue that has been brought before this Court for consideration is whether or not Tirazona was legally dismissed from employment.I.
WHETHER THERE WAS BREACH OF TRUST ON THE PART OF PETITIONER TIRAZONA WHEN SHE WROTE THE TWO MILLION PESO DEMAND LETTER FOR DAMAGES, WARRANTING HER DISMISSAL FROM EMPLOYMENT.
II.
WHETHER DUE PROCESS WAS SUFFICIENTLY AND FAITHFULLY OBSERVED BY RESPONDENTS IN THE DISMISSAL OF PETITIONER TIRAZONA FROM EMPLOYMENT.
Prefatorily, the Court notes that Tirazona elevated her case to this Court via a Petition for Certiorari under Rule 65 of the Rules of Court. The appropriate remedy would have been for Tirazona to file an appeal through a Petition for Review on Certiorari under Rule 45.
For a Petition for Certiorari under Rule 65 of the Rules of Court to prosper, the following requisites must be present: (1) the writ is directed against a tribunal, a board or an officer exercising judicial or quasi-judicial functions: (2) such tribunal, board or officer has acted without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction; and (3) there is no appeal or any plain, speedy and adequate remedy in the ordinary course of law.[22]
There is grave abuse of discretion "when there is a capricious and whimsical exercise of judgment as is equivalent to lack of jurisdiction, such as where the power is exercised in an arbitrary or despotic manner by reason of passion or personal hostility, and it must be so patent and gross so as to amount to an evasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law."[23]
The Petition for Certiorari shall be filed not later than sixty (60) days from notice of the judgment, order or resolution. In case a motion for reconsideration is timely filed, the sixty (60)-day period shall be counted from notice of the denial of the said motion.[24]
On the other hand, Rule 45 of the Rules of Court pertains to a Petition for Review on Certiorari whereby "a party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals x x x may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth."[25]
The petition shall be filed within fifteen (15) days from notice of the judgment or final order or resolution appealed from, or of the denial of the petitioner's motion for new trial or reconsideration filed in due time after notice of the judgment.[26]
In the present case, the assailed Decision is the dismissal by the Court of Appeals of Tirazona's Petition for Certiorari under Rule 65. Said Decision partakes of the nature of a judgment or final order, thus, is reviewable only through an appeal by certiorari under Rule 45.
As aptly declared by the Court in National Irrigation Administration v. Court of Appeals[27]:
[s]ince the Court of Appeals had jurisdiction over the petition under Rule 65, any alleged errors committed by it in the exercise of its jurisdiction would be errors of judgment which are reviewable by timely appeal and not by a special civil action of certiorari. If the aggrieved party fails to do so within the reglementary period, and the decision accordingly becomes final and executory, he cannot avail himself of the writ of certiorari, his predicament being the effect of his deliberate inaction. [Emphasis ours.]Even just a cursory glance at the issues raised by Tirazona before this Court readily reveals that these pertain to purported errors of judgment committed by the appellate court in its appreciation of the allegations, evidence, and arguments presented by the parties. There is no question here of the Court of Appeals acting on Tirazona's Petition in CA-G.R. No. 85065 without or in excess of jurisdiction or with grave abuse of discretion amounting to lack or excess of jurisdiction.
A review of the rollo of the Petition at bar divulges even further that Tirazona's resort to a wrong remedy was not an innocent mistake but a deliberate choice.
On 5 October 2005, Tirazona filed with this Court a Petition for Extension of Time to File a Petition for Review on Certiorari.[28] Tirazona stated therein that she received the notice of the Court of Appeals Resolution denying her Motion for Reconsideration on 23 September 2005. Since she only had fifteen (15) days after the said date to file a Petition for Review on Certiorari, or until 8 October 2005, Tirazona prayed for an extension of thirty (30) days, with her counsel citing extreme pressures of work.
In a Resolution[29] dated 19 October 2005, the Court granted Tirazona's Motion for Extension. The extended period was to end on 7 November 2005. However, Tirazona failed to file a Petition for Review on Certiorari within the said period. Instead, she filed the present Petition for Certiorari on 5 December 2005, seventy-three (73) days after notice of the Court of Appeals Resolution denying her Motion for Reconsideration.
From the foregoing, it is fairly obvious that Tirazona was aware that she was supposed to file an appeal through a Petition for Review on Certiorari under Rule 45. That she filed the instant Petition for Certiorari under Rule 65 and only after an inexplicably long period of time leads to the inescapable conclusion that the same was merely an afterthought, nothing more than a desperate attempt to revive a lost appeal.
The special civil action of certiorari under Rule 65 is an independent action that cannot be availed of as a substitute for the lost remedy of an ordinary appeal, including that under Rule 45, especially if such loss or lapse was occasioned by one's own neglect or error in the choice of remedies.[30] It also bears to stress the well-settled principle that the remedies of appeal and certiorari are mutually exclusive and not alternative or successive. Under Rule 56, Sec. 5(f) of the Revised Rules of Court, a wrong or inappropriate mode of appeal merits an outright dismissal.[31]
Tirazona, in her Reply[32] before this Court, even admits that although the instant Petition is one of special civil action of certiorari under Rule 65, her petition is in reality an appeal under Rule 45 as her petition raises pure questions of law. Tirazona herself acknowledges the formal defects of her own Petition and attributes the same to the haste and inadvertence of her former counsel, who allegedly prepared the instant Petition without her participation.[33] She thus urges this Court to suspend the application of its own rules on grounds of equity and substantial justice, considering that it is her employment that is at stake in this case.
In this regard, it needs to be emphasized that before the Court may treat the present petition as having been filed under Rule 45, the same must comply with the reglementary period for filing an appeal. This requirement is not only mandatory but also jurisdictional such that failure to do so renders the assailed decision final and executory, and deprives this Court of jurisdiction to alter the final judgment, much less to entertain the appeal.[34] Since the instant petition was filed after the lapse of the extended period for filing an appeal, the same should be dismissed outright.
Nevertheless, the Court finds it essential that we discuss the case on its merits, bearing in mind that the paramount consideration in this case is an employee's right to security of tenure, and in order to provide Tirazona the amplest opportunity to know how the Court arrived at a proper and just determination of her case.
Even if the Court were to ignore the conspicuous procedural defects committed by Tirazona and treat her Petition as an appeal under Rule 45, it still finds that the Petition must be denied for lack of merit.
Petitioner contends that, contrary to the findings of the Court of Appeals, her dismissal from employment was illegal for having lacked both a legal basis and the observance of due process.
In employee termination cases, the well-entrenched policy is that no worker shall be dismissed except for a just or authorized cause provided by law and after due process. Clearly, dismissals have two facets: first, the legality of the act of dismissal, which constitutes substantive due process; and second, the legality in the manner of dismissal, which constitutes procedural due process.[35]
Under Article 282(c)[36] of the Labor Code, loss of trust and confidence is one of the just causes for dismissing an employee. It is an established principle that loss of confidence must be premised on the fact that the employee concerned holds a position of trust and confidence. This situation obtains where a person is entrusted with confidence on delicate matters, such as care and protection, handling or custody of the employer's property. But, in order to constitute a just cause for dismissal, the act complained of must be "work-related" such as would show the employee concerned to be unfit to continue working for the employer. Besides, for loss of confidence to be a valid ground for dismissal, such loss of confidence must arise from particular proven facts.[37]
Tirazona claims that her demand letter was merely an expression of indignation by a disgruntled employee against a director, not against the company and, by itself, cannot constitute a breach of trust and confidence. The company's notice of charge allegedly insinuated Tirazona's guilt in the Balonzo incident; hence, the need to defend herself. Tirazona likewise asserts that she is an ordinary rank-and-file employee as she is not vested with the powers and prerogatives stated in Article 212(m)[38] of the Labor Code. As such, her alleged hostility towards her co-workers and the PET management is not a violation of trust and confidence that would warrant her termination from employment.
At the outset, the Court notes that the issues set forth above are factual in nature. As the Court is asked to consider the instant Petition as an appeal under Rule 45, then only pure questions of law will be entertained.[39]
A question of law arises when there is doubt as to what the law is on a certain state of facts, while there is a question of fact when the doubt arises as to the truth or falsity of the alleged facts. For a question to be one of law, the same must not involve an examination of the probative value of the evidence presented by the litigants or any of them. The resolution of the issue must rest solely on what the law provides on the given set of circumstances. Once it is clear that the issue invites a review of the evidence presented, the question posed is one of fact.[40]
In the instant case, Tirazona would have the Court examine the actual wording, tenor, and contextual background of both her demand letter and the PET's notice of charge against her. Similarly, the determination of whether Tirazona is a managerial or rank-and-file employee would require the Court to review the evidence that pertains to Tirazona's duties and obligations in the company. Also, in order to ascertain whether the breach of trust was clearly established against Tirazona, the Court will have to sift through and evaluate the respective evidence of the parties as well. These tasks are not for the Court to accomplish.
The Court is not a trier of facts. It is not the function of this Court to analyze or weigh evidence all over again, unless there is a showing that the findings of the lower court are totally devoid of support or are glaringly erroneous as to constitute palpable error or grave abuse of discretion.[41]
In its assailed decision, the Court of Appeals affirmed the ruling of the NLRC and adopted as its own the latter's factual findings. Long established is the doctrine that findings of fact of quasi-judicial bodies like the NLRC are accorded with respect, even finality, if supported by substantial evidence. When passed upon and upheld by the Court of Appeals, they are binding and conclusive upon the Supreme Court and will not normally be disturbed.[42] Though this doctrine is not without exceptions,[43] the Court finds that none are applicable to the present case.
Thus, on the matter of Tirazona's demand letter, this Court is bound by the following findings of the Court of Appeals:
Clearly, petitioner Tirazona's letter to respondent Ono dated 27 February 2002, as DIRECTOR of PET was addressed to an officer and representative of the corporation. The accusations in the aforesaid demand letter were directed against respondent Ono's official act as a representative of respondent PET. Suffice it to stress, an attack on the integrity of his (Ono) corporate act is necessarily aimed at respondent PET because a corporation can only act through its officers, agents and representatives.Likewise conclusive upon this Court is the Court of Appeals' pronouncement that Tirazona is in fact a managerial employee, to wit:
x x x x
A thorough and judicious examination of the facts and evidence obtaining in the instant case as could be found in the records, would clearly show that petitioner Tirazona has absolutely no basis for a P2 million demand, coupled with lawsuit if the same was not paid within the five (5) days [sic] period. Her justification for the demand of money is that she was allegedly found by the respondent PET through respondent Ono guilty of the charges filed by Ms. Balonzo. As the records would indubitably show, petitioner Tirazona was never charged of any offense with respect to the Fe Balonzo's [sic] incident. She was never issued a Notice of Charge, much less a Notice of Disciplinary Action. What was issued to her by respondent Ono in his letter x x x was a gentle and sound reminder to be more circumspect in handling the incident or situation like this [sic]. As fully evidenced in the last paragraph of the said letter, it states that:
x x x xManagement considers this matter closed, and finds it appropriate to convey to you that it does not view with favor your notice to file legal action. Management believes that you share the idea that issues regarding employee relations are best threshed out within the Company. Resorting to legal action is unlikely to solve but on the contrary would only exacerbate such problems.But for reasons only known to petitioner Tirazona, she treated respondent Ono's letter as an affront to her honor and dignity. This, instead of seeking a dialogue with respondent PET on her felt grievance, petitioner Tirazona through her lawyer sent the questioned demand letter to respondent Ono. Suffice it to state, this act of petitioner bared animosity in the company and was definitely not a proper response of a top level manager like her over a trivial matter.
x x x x
In fine, the confluence of events and circumstances surrounding the petitioner Tirazona's actions or omissions affecting her employer's rights and interest, would undoubtedly show that she is no longer worthy of being a recipient of the trust and confidence of her employer. x x x.[44]
The records would indubitably show that it is only now that petitioner Tirazona is asserting that she is not a managerial employee of respondent PET. From the very start, her dismissal was premised on the fact that she is a managerial and confidential employee, and she never denied that fact. It was never an issue at all before the Labor Arbiter and the public respondent NLRC. Therefore, she is estopped to claim now that she is [just a] rank and file employee of respondent PET, especially that she herself admitted in her pleading that she is a managerial employee:Tirazona next argues that she was deprived of procedural due process as she was neither served with two written notices, nor was she afforded a hearing with her participation prior to her dismissal.
x x x xIf the respondent Company has to protect Respondent Mamoru Ono, the Complainant [petitioner] has also the right to be protected from the baseless accusations of a Rank and File Employee for she [petitioner] is a part of the management like Mr. Mamoru Ono" (par. 5, Complainant's Rejoinder [to Respondent's Reply] dated 2 September 2002 (note: unattached to the petitioner [sic]) [attached as Annex "1" hereof]. (p. 263, Rollo).[45]
Tirazona's arguments are baseless.
Procedural due process is simply defined as giving an opportunity to be heard before judgment is rendered. The twin requirements of notice and hearing constitute the essential elements of due process, and neither of those elements can be eliminated without running afoul of the constitutional guaranty.[46]
The employer must furnish the employee two written notices before termination may be effected. The first notice apprises the employee of the particular acts or omissions for which his dismissal is sought, while the second notice informs the employee of the employer's decision to dismiss him.[47]
It is fairly obvious in this case that Tirazona was served with the required twin notices. The first was embodied in the Notice of Charge dated 25 March 2002 where PET informed Tirazona that it was considering her termination from employment and required her to submit a written explanation. In the said Notice, PET apprised Tirazona of the ground upon which it was considering her dismissal: (1) her letter that contained false accusations against the company, and (2) her demand for two million pesos in damages, with a threat of a lawsuit if the said amount was not paid. The Notice of Termination dated 22 April 2002 given to Tirazona constitutes the second notice whereby the company informed her that it found her guilty of breach of trust warranting her dismissal from service.
Equally bereft of merit is Tirazona's allegation that she was not given the benefit of a fair hearing before she was dismissed.
It needs to be pointed out that it was Tirazona herself and her counsel who declined to take part in the administrative hearing set by PET 10 April 2002. Tirazona rejected the company's appointment of its external counsel as the investigating panel's presiding officer, because her own demands on the panel's composition were denied. As correctly held by the NLRC and the Court of Appeals, Tirazona's stance is without any legal basis. On the contrary, this Court's ruling in Foster Parents Plan International/Bicol v. Demetriou[48] is controlling:
The right to dismiss or otherwise impose disciplinary sanctions upon an employee for just and valid cause, pertains in the first place to the employer, as well as the authority to determine the existence of said cause in accordance with the norms of due process. In the very nature of things, any investigation by the employer of any alleged cause for disciplinary punishment of an employee will have to be conducted by the employer himself or his duly designated representative; and the investigation cannot be thwarted or nullified by arguing that it is the employer who is accuser, prosecutor and judge at the same time. x x x Of course, the decision of the employer meting out sanctions against an employee and the evidentiary and procedural bases thereof may subsequently be passed upon by the corresponding labor arbiter (and the NLRC on appeal) upon the filing by the aggrieved employee of the appropriate complaint. [Emphasis ours.]This Court has held that there is no violation of due process even if no hearing was conducted, where the party was given a chance to explain his side of the controversy. What is frowned upon is the denial of the opportunity to be heard.[49] Tirazona in this case has been afforded a number of opportunities to defend her actions. Even when Tirazona failed to attend the scheduled hearing, PET still informed Tirazona about what happened therein and gave her the chance to submit a supplemental written explanation. Only when Tirazona again failed to comply with the same did PET terminate her employment.
As a final plea for her case, Tirazona asserts that her dismissal from employment was too harsh and arbitrary a penalty to mete out for whatever violation that she has committed, if indeed there was one.
Tirazona ought to bear in mind this Court's pronouncement in Metro Drug Corporation v. NLRC[50] that:
When an employee accepts a promotion to a managerial position or to an office requiring full trust and confidence, she gives up some of the rigid guaranties available to ordinary workers. Infractions which if committed by others would be overlooked or condoned or penalties mitigated may be visited with more severe disciplinary action. A company's resort to acts of self-defense would be more easily justified. x x x.Tirazona, in this case, has given PET more than enough reasons to distrust her. The arrogance and hostility she has shown towards the company and her stubborn, uncompromising stance in almost all instances justify the company's termination of her employment. Moreover, Tirazona's reading of what was supposed to be a confidential letter between the counsel and directors of the PET, even if it concerns her, only further supports her employer's view that she cannot be trusted. In fine, the Court cannot fault the actions of PET in dismissing petitioner.
WHEREFORE, premises considered, the instant petition is hereby DENIED for lack of merit and the Decision of the Court of Appeals dated 24 May 2005 is hereby AFFIRMED. Costs against the petitioner.
SO ORDERED.
Ynares-Santiago, (Chairperson), Austria-Martinez, Nachura, and Reyes, JJ., concur.
[1] Rollo, pp. 8-18; dated 5 December 2005.
[2] Penned by Associate Justice Bienvenido L. Reyes with Associate Justices Godardo A. Jacinto and Rosalinda Asuncion-Vicente, concurring; id. at 20-46.
[3] Id. at 47-49.
[4] CA rollo, pp. 25-35.
[5] Id. at 91.
[6] Id. at 92-94.
[7] Records, p. 62.
[8] Id. at 63.
[9] The Notice of Charge states:
To: Ma. Wenelita S. Tirazona
From: Management
Re: Notice of Charge
Date: March 25, 2002
This is to inform you that Management is considering your termination from employment, for serious misconduct and breach of trust, arising from your counsel's demand letter dated 27 February 2002 x x x wherein you falsely accused the Company of:
From: Management
Re: Notice of Charge
Date: March 25, 2002
This is to inform you that Management is considering your termination from employment, for serious misconduct and breach of trust, arising from your counsel's demand letter dated 27 February 2002 x x x wherein you falsely accused the Company of:
· Finding you guilty of the charges laid by Ms. Fe S. Balonzo
· Depriving you of due process
-and demanding from the Company P2,000,000.00 in damages with threat of an inevitable lawsuit if your baseless demands are not satisfied within five (5) days from receipt of the demand letter.
The Company finds your letter libelous. Your rash action is a serious misconduct and an open display of disloyalty. Being part of the management, you as an officer is [sic] required not to assert any adverse interest against the Company. Your position demands utmost trust and confidence. Your ill-advised action is a flagrant breach of your fiduciary duty and is highly prejudicial to the Company's interest.
You are hereby given thirty six (36) hours from receipt of this memo to submit a written explanation and justify why your services should not be terminated for serious misconduct and breach of trust.
Be guided accordingly.
(SGD.) MAMORO ONO
(DIRECTOR)
Noted by:
(SGD.) Mr. Ken Kubota
President (Records, p. 67.)
The Company finds your letter libelous. Your rash action is a serious misconduct and an open display of disloyalty. Being part of the management, you as an officer is [sic] required not to assert any adverse interest against the Company. Your position demands utmost trust and confidence. Your ill-advised action is a flagrant breach of your fiduciary duty and is highly prejudicial to the Company's interest.
You are hereby given thirty six (36) hours from receipt of this memo to submit a written explanation and justify why your services should not be terminated for serious misconduct and breach of trust.
Be guided accordingly.
(SGD.) MAMORO ONO
(DIRECTOR)
Noted by:
(SGD.) Mr. Ken Kubota
President (Records, p. 67.)
[10] CA rollo, pp. 64-65.
[11] Id. at 246-249.
[12] Id. at 250.
[13] Id. at 251.
[14] Id. at 253.
[15] Id. at 242.
[16] Id. at 61.
[17] Id. at 95-104.
[18] Id. at 34.
[19] Id. at 31.
[20] Id. at 42.
[21] Id. at 45.
[22] Manila Memorial Park Cemetery, Inc. v. Panado, G.R. No. 167118, 15 June 2006, 490 SCRA 751, 762.
[23] Id. at 762-763.
[24] RULES OF COURT, Rule 65, Sec. 4.
[25] RULES OF COURT, Rule 45, Sec. 1.
[26] RULES OF COURT, Rule 45, Sec. 2.
[27] 376 Phil. 362, 371 (1999) cited in San Miguel Corporation v. Court of Appeals, 425 Phil. 951, 955 (2002).
[28] Rollo, pp. 3-4.
[29] Id. at 6.
[30] National Irrigation Administration v. Court of Appeals, supra note 27, cited in Chua v. Santos, G.R. No. 132467, 18 October 2004, 440 SCRA 365, 373.
[31] Chua v. Santos, id.
[32] Rollo, pp. 121-123.
[33] Id. at 122.
[34] People v. Sandiganbayan, G.R. No. 156394, 21 January 2005, 449 SCRA 205, 217.
[35] Shoemart, Inc. v. National Labor Relations Commission, G.R. No. 74229, 11 August 1989, 176 SCRA 385, 390, cited in Asian Construction And Development Corporation v. National Labor Relations Commission, G.R. No. 142407, 12 March 2007.
[36] Art. 282. TERMINATION BY EMPLOYER. - An employer may terminate an employment for any of the following causes:
x x x x
c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative.
[37] Jardine Davies, Inc. v. National Labor Relations Commission, 370 Phil. 310, 318-319 (1999).
[38] Art. 212(m) partially states:
"Managerial employee" is one who is vested with powers or prerogatives to lay down and execute management policies and/or to hire, transfer, suspend, lay-off, recall, discharge, assign or discipline employees.
[39] The rule that only questions of law may be raised in a petition for review under Rule 45 admits of certain exceptions, though none of which are present in the instant petition, namely: (1) the conclusion is a finding grounded entirely on speculation, surmise and conjecture; (2) the inference made is manifestly mistaken; (3) there is grave abuse of discretion; (4) the judgment is based on a misapprehension of facts; (5) the findings of fact are conflicting; (6) the CA went beyond the issues of the case and its findings are contrary to the admissions of both appellant and appellees; (7) the findings of fact of the CA are contrary to those of the trial court; (8) said findings of fact are conclusions without citation of specific evidence on which they are based; (9) the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents; and (10) the findings of fact of the CA are premised on the supposed absence of evidence and contradicted by the evidence on record. [Rosario v. PCI Leasing and Finance, Inc., G.R. No. 139233, 11 November 2005, citing Sarmiento v. Court of Appeals, 353 Phil. 834, 846 (1998)].
[40] Velayo-Fong v. Velayo, G.R. No. 155488, 6 December 2006, 510 SCRA 320, 329-330, cited in Binay v. Odeña, G.R. No. 163683, 8 June 2007, 524 SCRA 248, 255-256.
[41] De Jesus v. Court of Appeals, G.R. No. 127857, 20 June 2006, 491 SCRA 325, 333, citing Potenciano v. Reynoso, 449 Phil. 396, 405 (2003).
[42] San Juan De Dios Educational Foundation Employees Union-Alliance of Filipino Workers v. San Juan De Dios Educational Foundation, Inc., G.R. No. 143341, 28 May 2004, 430 SCRA 193, 205-206.
[43] Almendrala v. Ngo, G.R. No. 142408, 30 September 2005, 471 SCRA 311, 322.
[44] Rollo, pp. 38-44.
[45] Id. at 39-40.
[46] Cruz v. Coca-Cola Bottlers Phils., Inc., G.R. No. 165586, 15 June 2005, 460 SCRA 340, 351.
[47] Pono v. National Labor Relations Commission, 341 Phil. 615, 621 (1997), cited in Landtex Industries v. Court of Appeals, G.R. No. 150278, 9 August 2007, 529 SCRA 631, 652.
[48] 226 Phil. 421, 426 (1986).
[49] Philippine Airlines, Inc. v. National Labor Relations Commission, G.R. No. 87353, 3 July 1991, 198 SCRA 748, 761.
[50] 227 Phil. 121, 127 (1986), cited in Villanueva v. National Labor Relations Commission (Third Division), 354 Phil. 1056, 1063 (1998).