|
EMCOR
INCORPORATED,
Petitioner, - versus - MA.
Respondent. |
G.R. No.
152101 Present: YNARES-SANTIAGO,
J., Chairperson, chico-nazario, VELASCO, JR., NACHURA, and PERALTA,
JJ. Promulgated: September
8, 2009 |
x-----------------------------------------------------------------------------------------x
PERALTA, J.:
Before
us is a special civil action for certiorari under Rule 65 of the Rules of Court filed by petitioner
Emcor Incorporated seeking to set aside the Decision[1]
dated
Petitioner is engaged in the business of selling, promoting
and servicing National appliances and
On
On
On
October 15, 1997, respondent filed a case for illegal dismissal and damages
against petitioner alleging that her retrenchment was discriminatory and
without basis; that when she was told on August 1, 1997 that she was being
retrenched and was asked to sign a waiver and quitclaim which she refused to
sign, thus, she was not allowed to report for work since then; that
petitioner's alleged suffering from business reverses was belied by its
continuous hiring of new employees from January to July 1997; that she was the
third most senior of the seven clerks assigned to the Personnel Department and
yet she was chosen to be retrenched when there was no evaluation of her
performance before her termination; that petitioner committed bad faith in
forcing her husband to resign in the guise of the alleged prohibition on spouses
working in the same company. Respondent prayed for moral and exemplary damages.
In its position paper, petitioner argued that respondent was
retrenched as part of its cost-cutting measures in order to prevent further
losses; that she was served a one-month advance notice, receipt of which she
refused to acknowledge; that it suffered financial losses in the amount of P6,321,953.00
for the year 1997 as shown by its Comparative Income Statement for the year
1996 and from February to June 1997; that it was constrained to resort to
downsizing its manpower complement because of the continuous slump in the
market demands for its products by reducing or abolishing some job positions in
each department and transferring the work activities of the abolished positions to the remaining job positions;
that there were 5 other employees retrenched who had received their separation
pay; and that respondent's termination was a valid exercise of management
prerogative.
Respondent filed her Reply and petitioner filed its
Rejoinder.
On
The
Labor Arbiter found that petitioner's retrenchment program was to prevent
further losses, thus, a valid exercise of management prerogative; that petitioner
had served the affected employees one-month advance notice, a copy furnished
the DOLE Regional Office, and they were
properly paid their monetary benefits; that proof of actual losses incurred by
the company was not a condition sine
qua non for retrenchment as it could be resorted to by an employer
primarily to avoid or minimize business losses as provided under Article 283 of
the Labor Code; and that respondent's position was not indispensable to the
operation of petitioner's business. The Labor Arbiter also found that the
hiring of new employees was necessary for the different stores located
throughout the country; that respondent failed to show that someone was hired
to take her place, and she failed to controvert petitioner's Comparative Income
Statement; and that there appeared no evidence that respondent's husband was
forced to resign, as he voluntarily left the company.
Aggrieved, respondent filed an appeal with the
National Labor Relations Commission (NLRC).
In a Decision[4]
dated
On
On
On
WHEREFORE, the petition
is hereby GRANTED. The assailed decision is SET ASIDE, and a new one rendered
declaring
The CA found that the
petition for certiorari was indeed filed out of time following SC
Resolution dated July 21, 1998, which was applicable to respondent's case, as
the petition was filed on March 29, 1999; that even applying SC A.M. No.
00-02-03 dated September 1, 2000, where a new period of 60 days
from receipt of the denial of the motion for reconsideration is provided
for, the petition was still filed out of time;
nonetheless, the CA gave due course to the petition based on the merit
of the case, setting aside technical rules in the higher interest of justice.
In
reversing the NLRC, the CA found that petitioner failed to present the quantum
of proof of its losses to justify
respondent's retrenchment; that the best proof of the profit and loss performance of a company was not
petitioner's Comparative Income Statement but the Income Statement for the year
1996 bearing the accountant's signature or showing that it was audited by an
independent auditor; that since respondent was terminated on August
1, 1997 when fiscal year 1997 had
not yet ended, petitioner should have come up with its books of accounts and
profit and loss statement signed by its accountant; that petitioner's Comparative Income Statement which covered
only the year 1996 and two quarters of 1997, was not sufficient to show serious
business losses, as it failed to show the income or losses for the years immediately preceding 1996; that it hired new
employees when it could have offered respondent any of the clerical positions
for newly-hired employees. The CA also held
that the required one-month notice prior to her termination was not
complied with since she was no longer allowed to work on August 2, 1997 despite
the fact that the notice to terminate her was made only on August 1, 1997; and
that there were no fair and reasonable criteria observed in terminating her.
The CA, however, found no evidence to substantiate respondent's claim for
damages.
Petitioner
received a copy of the CA decision on
Undaunted, petitioner filed a petition for certiorari raising the following issues:
PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO EXCESS OF OR LACK OF JURISDICTION WHEN IT GAVE DUE COURSE TO THE APPEAL DESPITE THE FACT THAT IT WAS ADMITTEDLY FILED OUT OF TIME.
PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO EXCESS OF OR LACK OF JURISDICTION WHEN IT FURTHER REVERSED AND SET ASIDE THE CONSISTENT RULING OF BOTH THE LABOR ARBITER AND THE NATIONAL LABOR RELATIONS COMMISSION.[9]
Petitioner alleges that the CA erred in giving due course to
the petition for certiorari,
as the same was filed out of time, and a liberal application of Section 4, Rule 65 of the 1997 Rules of Civil
Procedure was uncalled for; that both the Labor Arbiter and the NLRC, being
experts in their field and having a good grasp of the over-all conditions then
prevailing, affirmed with definiteness the soundness of petitioner's retrenchment program; and that
the CA gravely erred and abused its discretion when it reversed the findings of
the Labor Arbiter and the NLRC, since the policy of the court is not to
interfere with the exercise of the adjudicatory functions of the administrative
bodies, unless there be a showing of arbitrary action or palpable and serious
error.
In her Comment, respondent argues that the petition should be dismissed, as petitioner filed a petition for certiorari under Rule 65 which was a wrong remedy, since an appeal from a final disposition of the CA should be under Rule 45 of the Rules of Court; that certiorari cannot be used as a substitute for the lost or lapsed appeal. Respondent counters that the petition for certiorari filed before the CA was timely filed under A.M. No. 00-2-03- SC amending Section 4, Rule 65 of the Rules of Court; that the CA correctly reversed the decision of the administrative bodies, since petitioner presented an unsigned and unaudited Comparative Income Statement for the year 1996 and from January to June 1997; and that there were no criteria applied to the selection of the employees to be terminated.
In its Reply, petitioner argues that an appeal under Rule 45
presupposes that the inferior court had jurisdiction to entertain the case;
however, the CA had no jurisdiction to entertain the same because the petition
was filed beyond the 60-day period required for filing the petition. Petitioner raised for the first time
respondent's failure to pay the full amount of docket fees at the time of the
filing of the petition. It claims that
the CA committed grave abuse of discretion amounting to lack of jurisdiction
when it reversed the findings of both the Labor Arbiter and the NLRC, thus, the
appropriate remedy is a petition for certiorari. Petitioner contends
that nevertheless, the instant petition is not a substitute for a lapsed
appeal; since petitioner received a copy
of the CA resolution denying its motion for reconsideration on January 24,
2002, and the instant petition was filed on February 7, 2002, i.e., within the 15-day
period to file the petition for review on certiorari.
Preliminarily,
we must first resolve respondent's contention that the instant petition for certiorari
filed under Rule 65 should be summarily dismissed for being the wrong mode
of appeal.
The
proper remedy of a party aggrieved by a decision of the Court of Appeals is a
petition for review under Rule 45, which is not identical to a petition for certiorari
under Rule 65. Rule 45 provides that
decisions, final orders or resolutions of the Court of Appeals in any case, i.e., regardless of the nature of the
action or proceedings involved, may be appealed to us by filing a petition for
review, which would be but a continuation of the appellate process over the
original case.[10] Thus, petitioner should have filed a petition
for review under Rule 45 instead of a special civil action for certiorari
under Rule 65.
Petitioner's
argument that a petition for certiorari is the proper remedy since the
CA had no jurisdiction to entertain the petition for certiorari filed
before it as the petition was filed beyond the 60-day period for filing the
same deserves scant consideration. There is no reason why such issue could not
have been raised on appeal.
However,
in accordance with the liberal spirit pervading the Rules of Court and in the
interest of justice, we have the
discretion to treat a petition for certiorari
as having been filed under Rule 45, especially if filed within the reglementary
period for filing a petition for review.[11] Petitioner received the CA resolution denying
its motion for reconsideration on
Now, on the issues raised by
petitioner.
Petitioner contends that the CA erred in giving due course to
respondent's petition for certiorari for being filed out of time.
We do not
agree.
Records
show that respondent received the NLRC decision on
SEC. 4. Where and when petition to be filed. –
The petition may be filed not later than sixty (60) days from notice of the
judgment, order or resolution sought to be assailed in the Supreme Court or, if
it relates to the acts or omissions of a lower court or of a corporation,
board, officer or person, in the Regional Trial Court exercising jurisdiction
over the territorial area as defined by the Supreme Court. It may also be filed
in the Court of Appeals whether or not the same is in aid of its appellate
jurisdiction, or in the Sandiganbayan if it is in aid of its jurisdiction. If
it involves the acts or omissions of a quasi-judicial agency, and unless
otherwise provided by law or these Rules, the petition shall be filed in and
cognizable only by the Court of Appeals.
If the petitioner
had filed a motion for new trial or reconsideration in due time after notice of
said judgment, order or resolution, the period herein fixed shall be
interrupted. If the motion is denied, the aggrieved party may file the
petition within the remaining period, but which shall not be less than five (5)
days in any event, reckoned from notice of such denial. No
extension of time to file the petition shall be granted, except for the most
compelling reason and in no case to exceed fifteen (15)
days.
Respondent filed the petition on
In Narzoles v. NLRC,[14]
the rationale for the retroactive application of A.M. No. 00-2-03-SC was stated in this wise, thus:
The
Court has observed that Circular No. 39-98 has generated
tremendous confusion resulting in the dismissal of numerous cases for late
filing. This may have been because, historically, i.e., even before the 1997
revision to the Rules of Civil Procedure, a party had a fresh period from
receipt of the order denying the motion for reconsideration to file a petition
for certiorari. Were it not for the amendments brought about by Circular No. 39-98, the cases so dismissed would have been resolved on
the merits. Hence, the Court deemed it wise to revert to the old rule allowing
a party a fresh 60-day period from notice of the denial of the motion for
reconsideration to file a petition for certiorari. Earlier this year, the Court
resolved, in A.M. No. 00-2-03-SC, to further amend
Section 4, Rule 65 to read as follows:
Sec. 4. When
and where petition filed. — The petition shall be filed not later than
sixty (60) days from notice of the judgment, order or resolution. In case a
motion for reconsideration or new trial is timely filed, whether such motion is
required or not, the sixty (60) day period shall be counted from notice of the
denial of said motion.
The petition shall be filed in the Supreme
Court or, if it relates to the acts or omissions of a lower court or of a
corporation, board, officer or person, in the Regional Trial Court exercising
jurisdiction over the territorial area as defined by the Supreme Court. It may
also be filed in the Court of Appeals whether or not the same is in aid of its
appellate jurisdiction or in the Sandiganbayan if it is in aid of its appellate
jurisdiction. If it involves the acts or omissions of a quasi-judicial agency,
unless otherwise provided by law or these rules, the petition shall be filed in
and cognizable only by the Court of Appeals.
No extension of time to file the petition shall
be granted except for compelling reason and in no case
exceeding fifteen (15) days.
The latest amendments took effect on
In view of its purpose, the Resolution further amending
Section 4, Rule 65 can only be described as curative in nature, and the
principles governing curative statutes are applicable.
Curative statutes are enacted to cure defects in a prior
law or to validate legal proceedings which would otherwise be void for want of
conformity with certain legal requirements. They are intended to supply
defects, abridge superfluities and curb certain evils. They are intended to
enable persons to carry into effect that which they have designed or intended,
but has failed of expected legal consequence by reason of some statutory
disability or irregularity in their own action. They make valid that which,
before the enactment of the statute was invalid. Their purpose is to give
validity to acts done that would have been invalid under existing laws, as if
existing laws have been complied with. Curative statutes, therefore, by their
very essence, are retroactive.
Accordingly, while the Resolution states that the same
“shall take effect on
Thus, the petition, which
was filed on
Anent petitioner's claim regarding
respondent's failure to pay the full amount of docket fees at the time of the filing of
the petition with the CA, we find
that it is estopped from questioning the jurisdiction of the CA on this ground,
because such issue had never been raised in any of the pleadings filed before
the CA. Notably, the CA issued a minute
resolution[17]
dated P510.00 to complete the docket
and other fees. Respondent complied, but
due to inadvertence, the amount remitted lacked the amount of P10.00,
thus, the CA in a Resolution[18] dated
November 22, 1999, considered the appeal abandoned pursuant to Section 1(c), Rule 50 of the 1997 Rules of Court.
Upon respondent's motion for reconsideration, the appeal was reinstated on
Petitioner's argument that the CA erred and abused its
discretion in reversing the findings of the Labor Arbiter and the NLRC, as it
is the court's policy of non-interference in the exercise of the adjudicatory
functions of the administrative bodies, is devoid of merit. We agree with
petitioner that factual findings of quasi-judicial and administrative bodies
are accorded great respect and even finality by the courts. However, this rule
is not absolute. When there is a showing that the factual findings of
administrative bodies were arrived at arbitrarily or in disregard of the
evidence on record, they may be examined by the courts. The CA
can grant the petition for certiorari
if it finds that the NLRC, in its assailed decision or resolution, made a
factual finding not supported by substantial evidence. It is within the jurisdiction of the CA,
whose jurisdiction over labor cases has been expanded to review the findings of
the NLRC. In R & E Transport, Inc. v. Latag,[20] we held:
The power of the CA to review NLRC decisions via a Rule 65 petition is now a settled issue. As early as St. Martin Funeral Homes v. NLRC, we have definitively ruled that the proper remedy to ask for the review of a decision of the NLRC is a special civil action for certiorari under Rule 65 of the Rules of Court, and that such petition should be filed with the CA in strict observance of the doctrine on the hierarchy of courts. Moreover, it has already been explained that under Section 9 of Batas Pambansa (BP) 129, as amended by Republic Act 7902, the CA – pursuant to the exercise of its original jurisdiction over petitions for certiorari – was specifically given the power to pass upon the evidence, if and when necessary, to resolve factual issues.[21]
The next issue before us is whether the
CA committed an error in reversing the NLRC decision finding respondent's dismissal valid due to
retrenchment.
It
is a settled rule that in the exercise of this Court’s power of review, it does
not inquire into the sufficiency of the evidence presented, consistent with the
rule that this Court is not a trier of facts.[22] A
fortiori, this rule applies to labor cases.[23]
However, there are recognized exceptions[24] to this
rule such as when the findings of fact are conflicting, which is present in
this case, thus, a review is in order.
Article 283 of the Labor Code recognizes the right of the
management to retrench or lay off workers to meet clear and continuing economic
threats or during a period of economic recession to prevent losses, thus:
ART. 283. Closure of establishment and reduction of personnel. - The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year.
In
Flight Attendants and Stewards
Association of the Philippines v. Philippines Airlines, Inc.,[25]
we have stated the nature, justification and requisites of a valid
retrenchment, to wit:
The law recognizes the right of every business entity to reduce its work force if the same is made necessary by compelling economic factors which would endanger its existence or stability. Where appropriate and where conditions are in accord with law and jurisprudence, the Court has authorized valid reductions in the work force to forestall business losses, the hemorrhaging of capital, or even to recognize an obvious reduction in the volume of business which has rendered certain employees redundant.
Nevertheless, while it is true that the exercise of this right is a prerogative of management, there must be faithful compliance with substantive and procedural requirements of the law and jurisprudence, for retrenchment strikes at the very heart of the worker’s employment, the lifeblood upon which he and his family owe their survival. Retrenchment is only a measure of last resort, when other less drastic means have been tried and found to be inadequate.
The burden clearly falls upon the employer to prove economic or business losses with sufficient supporting evidence. Its failure to prove these reverses or losses necessarily means that the employee’s dismissal was not justified. Any claim of actual or potential business losses must satisfy certain established standards, all of which must concur, before any reduction of personnel becomes legal. These are:
(1) That retrenchment is reasonably necessary and likely to prevent business losses which, if already incurred, are not merely de minimis, but substantial, serious, actual and real, or if only expected, are reasonably imminent as perceived objectively and in good faith by the employer;
(2) That the employer served written notice both to the employees and to the Department of Labor and Employment at least one month prior to the intended date of retrenchment;
(3) That the employer pays the retrenched employees separation pay equivalent to one (1) month pay or at least one-half (½) month pay for every year of service, whichever is higher;
(4) That the employer exercises its prerogative to retrench employees in good faith for the advancement of its interest and not to defeat or circumvent the employees’ right to security of tenure; and,
(5) That the employer used fair and reasonable criteria in ascertaining who would be dismissed and who would be retained among the employees, such as status, efficiency, seniority, physical fitness, age, and financial hardship for certain workers.[26]
Petitioner claims that respondent was retrenched as part of
its cost-cutting measures to prevent further losses as it had suffered
financial losses in the amount of P6,321,953.00. The CA found that
petitioner failed to present quantum of proof of losses to which we agree.
The burden of proving the
validity of retrenchment is on the petitioner.
Evidence does not sufficiently establish that petitioner had incurred
losses that would justify retrenchment to prevent further losses. The
Comparative Income Statement for the year 1996 and for the months of February
to June 1997 which petitioner submitted did not conclusively show that
petitioner had suffered financial losses. In fact, records show that from
January to July 1997, petitioner hired a total of 114 new employees assigned in
the petitioner's stores located in the different places of the country.[27]
We, however, disagree with the CA finding that petitioner
failed to comply with the notice requirement to be served on respondent and the
Department of Labor and Employment at least one month prior to the intended
date of retrenchment.
Records
show that petitioner had served a written notice dated
Finally,
we agree with the CA in finding that petitioner failed to show that it used
reasonable criteria in effecting retrenchment, such as, but not limited
to: (a) less preferred status (e.g., temporary employee), (b) efficiency,
and (c) seniority.
Records
do not show any criterion adopted or used by petitioner in dismissing
respondent. Respondent was terminated without considering her seniority. Retrenchment scheme without taking seniority into account
rendered the retrenchment invalid.[29]
While respondent was the third
most senior employee among the 7 employees in petitioner's personnel department,
she was retrenched while her other co-employees junior than her were either
retained in the Personnel Department[30]
or were transferred to other positions in the company.[31]
There was no showing that respondent was offered to be transferred to other
positions.
We,
therefore, find that the CA did not err, much less abuse, its discretion in
finding that respondent's dismissal was arbitrary and illegal.
WHEREFORE,
the petition is DENIED. The Decision
dated
SO
ORDERED.
DIOSDADO M.
PERALTA
Associate
Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MINITA
V. CHICO-NAZARIO PRESBITERO J. VELASCO, JR.
Associate Justice Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice
ATTESTATION
I
attest that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the
Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate
Justice
Chairperson, Third Division
CERTIFICATION
Pursuant
to Section 13, Article VIII of the Constitution and the Division Chairperson’s
Attestation, I certify that the conclusions in the above Decision were reached
in consultation before the case was assigned to the writer of the opinion of
the Court’s Division.
REYNATO
S. PUNO
Chief Justice
[1] Penned
by Justice Conchita Carpio Morales (now a member of this Court), with Associate
Justices Candido V. Rivera and Rebecca de Guia-Salvador, concurring; rollo, pp.
93-99.
[2] Id at. 102-103.
[3] Penned
by Labor Arbiter Antonio M. Villanueva; rollo, pp. 58-64.
[4] Penned
by Commissioner Leon G. Gonzaga, Jr., with Presiding Commissioner Oscar N.
Abella, concurring; id. at 66-68.
[5] CA rollo,
p. 12.
[6] Rollo,
pp. 71-72.
[7] CA rollo,
p. 12.
[8] Rollo,
p. 99.
[9]
[10] Mercado v. Court of Appeals, G.
R. No. 150241, November 4, 2004, 441 SCRA 463, 469.
[11] Delsan
Transport Lines, Inc. v. Court of Appeals, G.R. No. 112288, February 20,
1997, 268 SCRA 597, 605.
[12] It was the date stamped on the envelope containing respondent's petition for certiorari filed with the CA.
[13]
Romero v. Court of Appeals, G.R. No.
142803, November 20, 2007, 537 SCRA 643, 648-649.
[14] G.R. No. 141959,
[15]
[16] See Garcia v.
Philippine Airlines, Inc., G.R. No. 160798,
[17] CA rollo, p. 90.
[18]
[19]
[20] G..R. No. 155214,
[21]
[22] The Insular Life Assurance
Company, Ltd. v. Court of Appeals,
G.R. No. 126850, April 28, 2004, 428 SCRA 79, 85.
[23] Chuayuco Steel Manufacturing
Corporation and/or Edwin Chua v. Buklod
Ng Manggagawa sa Chuayuco Steel Manufacturing Corporation, G.R. No. 167347, January 31, 2007, 513 SCRA 621.
[24]
(1) when the findings
are grounded entirely on speculation, surmises or conjectures; (2) when the
inference made is manifestly mistaken, absurd or impossible; (3) when there is
grave abuse of discretion; (4) when the judgment is based on a misapprehension
of facts; (5) when the findings of facts are conflicting; (6) when in making
its findings the Court of Appeals went beyond the issues of the case, or its
findings are contrary to the admissions of both the appellant and the appellee;
(7) when the findings are contrary to the trial court; (8) when the findings
are conclusions without citation of specific evidence on which they are based;
(9) when the facts set forth in the petition as well as in the petitioner’s
main and reply briefs are not disputed by the respondent; (10) when the
findings of fact are premised on the supposed absence of evidence and
contradicted by the evidence on record; and (11) when the Court of Appeals
manifestly overlooked certain relevant facts not disputed by the parties,
which, if properly considered, would justify a different conclusion.
[25] G.R. No. 178083,
[26]
[27] LA decision, id. at 62.
[28] Rollo, p. 50.
[29] Philippine Tuberculosis Society Inc. v.
NLRC, 356 Phil. 63, 72 (1998).
[30] Rollo, pp. 55-56.
[31]