2. Exodus International & Javalera v. Biscocho, Pereda, Mariano, Bellita & Bobillo G.R. No.

166109:February23,2011

FACTS:
Petitioner Exodus International Construction Corporation (Exodus) is a duly licensed labor contractor
for the painting of residential houses, condominium units and commercial buildings.

In the furtherance of its business, Exodus hired respondents as painters on different dates. Guillermo,
Fernando, Ferdinand, and Miguel filed a complaint for illegal dismissal and non-payment of holiday
pay, service incentive leave pay, 13th month pay and night-shift differential pay.

The Labor Arbiter rendered a Decision exonerating petitioners from the charge of illegal dismissal as
respondents chose not to report for work. However, she allowed the claims for holiday pay, service
incentive leave pay and 13th month pay. The Decision was affirmed by the NLRC and the CA. They
opined that in a situation where the employer has complete control over the records and could thus
easily rebut any monetary claims against it but opted not to lift any finger, the burden is on the
employer and not on the complainants.

ISSUE: Whether or not the CA erred and committed grave abuse of discretion in ordering the
reinstatement of respondents to their former positions and affirming the award granted by the lower
tribunals.

HELD: The petition is partly meritorious. LABOR LAW: Illegal dismissal

In illegal dismissal cases, it is incumbent upon the employees to first establish the fact of their
dismissal before the burden is shifted to the employer to prove that the dismissal was legal. Here,
there was no evidence that respondents were dismissed nor were they prevented from returning to
their work. It was only respondents’ unsubstantiated conclusion that they were dismissed.

Clearly therefore, there was no dismissal, much less illegal, and there was also no abandonment of
job to speak of. The Labor Arbiter is therefore correct in ordering that respondents be reinstated but
without any backwages.

However, petitioners are of the position that the reinstatement of respondents to their former
positions, which were no longer existing, is impossible, highly unfair and unjust. Petitioners are
misguided. They forgot that there are two types of employees in the construction industry. The first is
referred to as project employees or those employed in connection with a particular construction
project or phase thereof and such employment is coterminous with each project or phase of the
project to which they are assigned. The second is known as non-project employees or those
employed without reference to any particular construction project or phase of a project. The second
category is where respondents are classified.

Petition is PARTLY GRANTED.

3. Philippine Long Distance Telephone Company vs Berbano, Jr. G.R. No. 165199, November
27, 2009

Facts:
Berbano was hired by PLDT as a Computer Assistant. However, he alleged that he also performed
the functions of a Specialist for EWSD who was responsible for handling, operations and
maintenance of the whole EWSD Network handling network database, fault clearance, database
modification alarm monitoring, traffic routing, trunk administration, password and tariff administration
and others. Being trained as EWSD OMC Specialist, complainant claimed that respondent expected
him to have “depth of understanding” in continuous painstaking research and study. Thus, he initiated
a study of “hi-tech EWSD Switching Equipment,” a part of which is the software installation of various
subscriber service features and control operation. It is at this time that complainant tapped his
brother-in-law’s number without the latter’s knowledge and installed service features in it for study.

When PLDT found out about the unauthorized installation of the said features, Berbano admitted that
he was responsible for such installation for purposes of study and testing. After formal investigation
and finding unacceptable the complainant’s explanation, respondent PLDT dismissed complainant
from the service.

The Labor Arbiter ordered the reinstatement of Berbano and the payment of backwages. On appeal
to the NRLC, the order was reversed. However, the CA reinstated the Labor Arbiter’s decision.

Issue: Was the dismissal of Berbano warranted?

Ruling:

No. Well-settled is the rule that no employee shall be validly dismissed from employment without the
observance of substantive and procedural due process. The minimum standards of due process are
prescribed under Article 277(b) of the Labor Code of the Philippines.

Thus, dismissal from service of an employee is valid if the following requirements are complied with:
(a) substantive due process which requires that the ground for dismissal is one of the just or
authorized causes enumerated in the Labor Code, and (b) procedural due process which requires
that the employee be given an opportunity to be heard and defend himself.

In this case, procedural due process was followed by PLDT when it notified respondent of the
complaint against him through an inter-office memorandum and in another inter-office memorandum
informing respondent that his act of installing special features in his brother-in-law’s telephone line
without authorization from petitioner constituted “gross misconduct” and was “grossly violative of
existing company rules and regulations,” hence, warranting his termination from service.

As regards substantial due process, the grounds for termination of employment must be based on
just or authorized causes. The notice of termination sent by petitioner to respondent indicated that the
latter was dismissed from service due to unauthorized installation of service features in his brother-in-
law’s telephone line, which allegedly constituted gross misconduct. Misconduct has been defined as
improper or wrong conduct. It is the transgression of some established and definite rule of action, a
forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error
of judgment. Ordinary misconduct would not justify the termination of services of the employee as the
Labor Code is explicit that the misconduct must be serious. To be serious, the misconduct must be of
such grave and aggravated character and not merely trivial and unimportant. Such misconduct,
however serious, must nevertheless be in connection with the employee’s work to constitute just
cause for his separation. As amplified by jurisprudence, misconduct, to be a just cause for dismissal,
must (a) be serious; (b) relate to the performance of the employee’s duties; and (c) show that the
employee has become unfit to continue working for the employer. Moreover, in National Labor
Relations Commission v. Salgarino, this Court stressed that “[i]n order to constitute serious
misconduct which will warrant the dismissal of an employee under paragraph (a) of Article 282 of the
Labor Code, it is not sufficient that the act or conduct complained of has violated some established
rules or policies. It is equally important and required that the act or conduct must have been
performed with wrongful intent.”

The Supreme Court found that the misconduct of respondent is not of serious nature as to warrant
respondent’s dismissal from service. The records of this case are bereft of any showing that the
alleged misconduct was performed by respondent with wrongful intent. On the contrary, respondent
readily admitted having installed the service features in his brother-in-law’s telephone line for
purposes of study and research which could have benefitted petitioner. Moreover, as pointed out by
the appellate court, respondent’s misconduct did not result in any economic loss on the part of
petitioner since the service features were not yet available in the market at the time respondent
caused its unauthorized installation.

The penalty of dismissal from service is not commensurate to respondent’s offense. Although
petitioner, as an employer, has the right to discipline its erring employees, exercise of such right
should be tempered with compassion and understanding. The magnitude of the infraction committed
by an employee must be weighed and equated with the penalty prescribed and must be
commensurate thereto, in view of the gravity of the penalty of dismissal or termination from the
service. The employer should bear in mind that in termination cases, what is at stake is not simply the
employee’s job or position but his very livelihood.