SECOND DIVISION
[G.R. No. 141947. July 5, 2001]
ISMAEL V. SANTOS, ALFREDO G. ARCE and HILARIO M. PASTRANA, petitioners, vs. COURT OF APPEALS, PEPSI COLA PRODUCTS PHILS., INC., LUIS P. LORENZO, JR. and FREDERICK DAEL, respondents.
D E C I S I O N
BELLOSILLO,
J.:
This petition for review
seeks to annul the Resolution[1] of the Court of Appeals in CA-G.R. SP No.
54853 dated 28 September 1999 which summarily dismissed petitioners’ special
civil action for certiorari for failing to execute properly the required verification
and certification against forum shopping and to specify the material dates from
which the timeliness of the petition may be determined.
Private respondent Pepsi
Cola Products Phils., Inc. (PEPSI) is a domestic corporation engaged in the
production, distribution and sale of beverages. At the time of their termination, petitioners Ismael V. Santos
and Alfredo G. Arce were employed by PEPSI as Complimentary Distribution
Specialists (CDS) with a monthly salary of P7,500.00 and P10,000.00,
respectively, while Hilario M. Pastrana was employed as Route Manager with a
monthly salary of P7,500.00.
In a letter dated 26
December 1994,[2] PEPSI informed its employees that due to
poor performance of its Metro Manila Sales Operations it would restructure and
streamline certain physical and sales distribution systems to improve its
warehousing efficiency. Certain
positions, including that of petitioners, were declared redundant and
abolished. Consequently, employees with
affected positions were terminated.
On 15 January 1995
petitioners left their respective positions, accepted their separation pays and
executed the corresponding releases and quitclaims. However, before the end of the year, petitioners learned that
PEPSI created new positions called Account Development Managers (ADM) with
substantially the same duties and responsibilities as the CDS. Aggrieved, on 15 April 1996, petitioners
filed a complaint with the Labor Arbiter for illegal dismissal with a prayer
for reinstatement, back wages, moral and exemplary damages and attorney’s fees.
In their complaint,
petitioners alleged that the creation of the new positions belied PEPSI’s claim
of redundancy. They further alleged
that the qualifications for both the CDS and ADM positions were similar and that
the employees hired for the latter positions were even less qualified than they
were.[3] Likewise taking note of possible procedural
errors, they claimed that while they were notified of their termination, PEPSI
had not shown that the Department of Labor and Employment (DOLE) was also
notified as mandated by Art. 283 of the Labor Code which states -
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 worker and the Ministry of Labor and Employment at least one (1) month before the intended date thereof x x x x (italics supplied).
PEPSI, on the other hand,
maintained that termination due to redundancy was a management prerogative the
wisdom and soundness of which were beyond the discretionary review of the
courts. Thus, it had the right to
manage its affairs and decide which position was no longer needed for its
operations. It further maintained that
the redundancy program was made in good faith and was not implemented to
purposely force certain employees out of their employment. It also claimed that a close perusal of the
job descriptions of both the CDS and ADM positions would show that the two (2)
were very different in terms of the nature of their functions, areas of
concerns, responsibilities and qualifications.[4]
On 18 June 1997, Labor
Arbiter Romulus S. Protacio dismissed the complaint for lack of merit. Furthermore, he ruled that the one
(1)-month written notice prior to termination required by Art. 283 was complied
with.
On appeal, the National
Labor Relations Commission (NLRC) affirmed the ruling of the Labor
Arbiter. However, in its Decision[5] dated 5 March 1999 it found that the Establishment
Termination Report was submitted to the DOLE only on 5 April 1995 or two
(2) months after the termination had already taken place[6] and thus effectively reversing the finding
of the Labor Arbiter that the required one (1)-month notice prior to
termination was complied with.
Nonetheless, the NLRC dismissed the appeal, citing International
Hardware, Inc. v. NLRC,[7] which held -
x x x x if an employee consented to his retrenchment or voluntarily applied for retrenchment with the employer due to the installation of labor-saving devices, redundancy, closure or cessation of operation or to prevent financial losses to the business of the employer, the required previous notice to the DOLE is not necessary as the employee thereby acknowledged the existence of a valid cause for termination of his employment x x x x (italics supplied).
On 10 September 1999,
petitioners filed a special civil action for certiorari with the Court of
Appeals.[8] The Court of Appeals in the assailed Resolution
dismissed the petition outright for failure to comply with a number of
requirements mandated by Sec. 3, Rule 46, in relation to Sec. 1, Rule 65, of
the 1997 Rules of Civil Procedure.
Respondent appellate court found that the verification and certification
against forum shopping were executed merely by petitioners’ counsel and not by
petitioners. The petition also failed
to specify the dates of receipt of the NLRC Decision as well as the
filing of the motion for reconsideration.[9] Under the aforecited Rules, failure of
petitioners to comply with any of the requirements was sufficient ground for
the dismissal of the petition.
Petitioners now present
the sole issue of whether there was failure to comply with the requirements of
the Rules in filing their petition for certiorari.
We find no manifest error
on the part of the Court of Appeals; hence, we affirm.
It is true that insofar
as verification is concerned, we have held that there is substantial compliance
if the same is executed by an attorney, it being presumed that facts alleged by
him are true to his knowledge and belief.[10] However, the same does not apply as regards
the requirement of a certification against forum shopping. Section 3, Rule 46, of the 1997 Rules of
Civil Procedure explicitly requires -
x x x x The petitioner shall also submit together with the petition a sworn certification that he has not theretofore commenced any other action involving the same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or any other tribunal or agency; if there is such other action or proceeding, he must state the status of the same; and if he should thereafter learn that a similar action or proceeding has been filed or is pending before the Supreme Court, the Court of Appeals, or different divisions thereof, or any other tribunal or agency, he undertakes to promptly inform the aforesaid courts and other tribunal or agency thereof within five (5) days therefrom x x x x
It is clear from the
above-quoted provision that the certification must be made by petitioner
himself and not by counsel since it is petitioner who is in the best
position to know whether he has previously commenced any similar action
involving the same issues in any other tribunal or agency.[11]
Petitioners argue that
while it may be true that they are in the best position to know whether they
have commenced an action or not, this information may be divulged to their
attorney and there is nothing anomalous or bizarre about this disclosure.[12] They further maintain that they executed a Special
Power of Attorney specifically to authorize their counsel to execute the
certification on their behalf.
We are aware of our
ruling in BA Savings Bank v. Sia[13] that a certification against forum shopping
may be signed by an authorized lawyer who has personal knowledge of the facts
required to be disclosed in such document.
However, BA Savings Bank must be distinguished from the case at
bar because in the former, the complainant was a corporation, and hence, a
juridical person. Therefore, that case
made an exception to the general rule that the certification must be made by
the petitioner himself since a corporation can only act through natural
persons. In fact, physical actions,
e.g., signing and delivery of documents, may be performed on behalf of the
corporate entity only by specifically authorized individuals. In the instant case, petitioners are all
natural persons and there is no showing of any reasonable cause to justify
their failure to personally sign the certification.[14] It is noteworthy that PEPSI in its Comment
stated that it was petitioners themselves who executed the verification and
certification requirements in all their previous pleadings. Counsel for petitioners argues that as a
matter of policy, a Special Power of Attorney is executed to promptly
and effectively meet any contingency relative to the handling of a case. This argument only weakens their position
since it is clear that at the outset no justifiable reason yet existed for
counsel to substitute petitioners in signing the certification. In fact, in the case of natural persons,
this policy serves no legal purpose.
Convenience cannot be made the basis for a circumvention of the
Rules.
Neither are we convinced
that the outright dismissal of the petition would defeat the administration of
justice. Petitioners argue that there
are very important issues such as their livelihood and the well being and
future of their families.[15] Every petition filed with a judicial
tribunal is sure to affect, even tangentially, either the well being and future
of petitioner himself or that of his family.
Unfortunately, this does not warrant disregarding the Rules.
Moreover, the petition
failed to indicate the material dates that would show the timeliness of the
filing thereof with the Court of Appeals.
There are three (3) essential dates that must be stated in a petition
for certiorari brought under Rule 65. First,
the date when notice of the judgment or final order or Resolution was
received; second, when a motion for new trial or reconsideration was
filed; and third, when notice of the denial thereof was received. Petitioners failed to show the first and
second dates, namely, the date of receipt of the impugned NLRC Decision
as well as the date of filing of their motion for reconsideration. Petitioners counter by stating that in the
body of the petition for certiorari filed in the Court of Appeals, it was
explicitly stated that the NLRC Resolution dated 11 May 1999 was
received by petitioners through counsel on 30 July 1999. They even reiterate this contention in
their Reply.
The requirement of
setting forth the three (3) dates in a petition for certiorari under
Rule 65 is for the purpose of determining its timeliness. Such a petition is required to be filed not
later than sixty (60) days from notice of the judgment, order or Resolution
sought to be assailed.[16] Therefore, that the petition for certiorari
was filed forty-one (41) days from receipt of the denial of the motion for
reconsideration is hardly relevant. The
Court of Appeals was not in any position to determine when this period
commenced to run and whether the motion for reconsideration itself was filed on
time since the material dates were not stated.
It should not be assumed that in no event would the motion be filed
later than fifteen (15) days. Technical
rules of procedure are not designed to frustrate the ends of justice. These are provided to effect the proper and
orderly disposition of cases and thus effectively prevent the clogging of court
dockets. Utter disregard of the Rules
cannot justly be rationalized by harking on the policy of liberal construction.[17]
But even if these
procedural lapses are dispensed with, the instant petition, on the merits, must
still fail. Petitioners impute grave
abuse of discretion on the part of the NLRC for holding that the CDS and ADM positions
were dissimilar, and for concluding that the redundancy program of PEPSI was
undertaken in good faith and that the case of International Hardware v. NLRC[18] was applicable.
This Court is not a trier
of facts. The question of whether the
duties and responsibilities of the CDS and ADM positions are similar is a
question properly belonging to both the Labor Arbiter and the NLRC. In fact, the NLRC merely affirmed the
finding of the Labor Arbiter on this point and further elaborated on the
differences between the two (2). Thus
it ruled -
x x x x We cannot subscribe to the complainants’ assertions that the positions have similar job descriptions. First, CDS report to a CD Manager, whereas the ADMs do not report to the CD Manager, leading us to believe that the organizational set-up of the sales department has been changed.
Second, CDS are field personnel who drive assigned vehicles and deliver stocks to “dealers” who, under the job description are those who sell and deliver the same stocks to smaller retail outlets in their assigned areas. The ADMs are not required to drive trucks and they do not physically deliver stocks to wholesale dealers. Instead, they help “dealers” market the stocks through retail. This conclusion is borne out by the fact (that) ADMs are tasked to ensure that the stocks are displayed in the best possible locations in the dealer’s store, that they have more shelf space and that dealers participate in promotional activities in order to sell more products.
It is clear to us that while CDS are required to physically deliver, sell and collect payments for softdrinks, they do so not primarily to retail outlets but to wholesale dealers who have retail customers of their own. They are not required to assist the dealers they deliver to in selling the softdrinks more effectively whereas ADMs sell softdrinks to big retail outlets (groceries and malls who have shelves and display cases and who require coolers and other paraphernalia). They do not only sell but they have to effectively market the products or put them in the best and most advantageous light so that the dealers who sell the softdrinks retails can sell more softdrinks. The main thrust of the ADMs job is to ensure that the softdrinks products ordered from them are marketed in a certain manner (“Pepsi-Way standards”) in keeping with the promotional thrust of the company.
Factual findings of the
NLRC, particularly when they coincide with those of the Labor Arbiter, are
accorded respect, even finality, and will not be disturbed for as long as such
findings are supported by substantial evidence,[19] defined as such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.[20] In this case, there is no doubt that the
findings of the NLRC are supported by substantial evidence. The job descriptions submitted by PEPSI are
replete with information and is an adequate basis to compare and contrast the
two (2) positions.
Therefore, the two (2)
positions being different, it follows that the redundancy program instituted by
PEPSI was undertaken in good faith.
Petitioners have not established that the title Account Development
Manager was created in order to maliciously terminate their employment. Nor have they shown that PEPSI had any ill
motive against them. It is therefore
apparent that the restructuring and streamlining of PEPSI’s distribution and
sales systems were an honest effort to make the company more efficient.
Redundancy exists when
the service capability of the work force is in excess of what is reasonably
needed to meet the demands of the enterprise.[21] A redundant position is one rendered
superfluous by a number of factors, such as overhiring of workers, decreased
volume of business, dropping of a particular product line previously
manufactured by the company or phasing out of a service previously undertaken
by the business.[22]
Based on the fact that
PEPSI’s Metro Manila Sales Operations were not meeting its sales targets,[23] and on the fact that new positions were
subsequently created, it is evident that PEPSI wanted to restructure its
organization in order to include more complex positions that would either
absorb or render completely unnecessary the positions it had previously
declared redundant. The soundness of
this business judgment of PEPSI has been assailed by petitioners, arguing that
it is more logical to implement new procedures in physical distribution, sales
quotas, and other policies aimed at improving the performance of the division
rather than to reduce the number of employees and create new positions.[24]
This argument cannot be
accepted. While it is true that
management may not, under the guise of invoking its prerogative, ease out
employees and defeat their constitutional right to security of tenure, the same
must be respected if clearly undertaken in good faith and if no arbitrary or
malicious action is shown.
Similarly, in Wiltshire
File Co., Inc. v. NLRC[25] petitioner company effected some changes in
its organization by abolishing the position of Sales Manager and simply adding
the duties previously discharged by it to the duties of the General Manager to
whom the Sales Manager used to report.
In that case, we held that the characterization of private respondent’s
services as no longer necessary or sustainable, and therefore properly
terminable, was an exercise of business judgment on the part of petitioner
company. The wisdom or soundness of
such characterization or decision is not subject to discretionary review on the
part of the Labor Arbiter or of the NLRC so long as no violation of law or
arbitrary and malicious action is indicated.
In the case at bar, no
such violation or arbitrary action was established by petitioners. The subject matter being well beyond the
discretionary review allowed by law, it behooves this Court to steer clear of
the realm properly belonging to the business experts.
We agree with the NLRC in
its application of International Hardware v. NLRC that the mandated one
(1) month notice prior to termination given to the worker and the DOLE is
rendered unnecessary by the consent of the worker himself. Petitioners assail the voluntariness of
their consent by stating that had they known of PEPSI’s bad faith they would
not have agreed to their termination, nor would they have signed the
corresponding releases and quitclaims.[26] Having established private respondent’s good
faith in undertaking the assailed redundancy program, there is no need to rule
on this contention.
Finally, in a last ditch
effort to plead their case, petitioners would want us to believe that their
termination was illegal since PEPSI did not employ fair and reasonable criteria
in implementing its redundancy program.
This issue was not raised before the Labor Arbiter nor with the
NLRC. As it would be offensive to the
basic rules of fair play and justice to allow a party to raise a question which
has not been passed upon by both administrative tribunals,[27] it is now too late to entertain it.
WHEREFORE, in the absence of any reversible error on
the part of the Court of Appeals, the petition is DENIED. The assailed Resolution dated 28
September 1999 which summarily dismissed petitioners’ special civil action for certiorari
for non-compliance with Sec. 3, Rule 46, in relation to Sec. 1, Rule 65, of the
1997 Rules of Civil Procedure is AFFIRMED.
SO ORDERED.
Mendoza, Buena, and De Leon, Jr., JJ., concur.
Quisumbing, J., on official business.
[1] Penned by Associate
Justice Ramon A. Barcelona, concurred in by Associate Justices Demetrio G.
Demetria and Mercedes Gozo-Dadole (Fourteenth Division).
[2] Rollo, p. 76.
[3] Id., pp.
26-27.
[4] Id., p. 27.
[5] Penned by
Commissioner Victoriano R. Calaycay, concurred in by Presiding Commissioner
Raul T. Aquino and Commissioner Angelita A. Gacutan.
[6] Rollo, p. 42.
[7] G.R. No. 80770, 10
August 1989, 176 SCRA 256.
[8] In light of the
ruling in St. Martin Funeral Homes v. NLRC, G.R. No. 130866, 16 September 1998,
295 SCRA 494.
[9] Rollo, p. 22.
[10] See Guerra
Enterprises Company, Inc. v. CFI of Lanao del Sur, No. L-28310, 17
April 1970, 32 SCRA 314, citing
Arambulo v. Perez, 78 Phil 387 (1947) and Cajefe v. Fernandez,
109 Phil 743 (1960).
[11] Far Eastern Shipping
Company v. Court of Appeals and Philippine Ports Authority, G.R. No. 130068, 1
October 1998, 297 SCRA 30.
[12] Rollo, p.
105.
[13] G.R. No. 131214, 27
January 2000.
[14] It was held in
Valentin Ortiz v. Court of Appeals, G.R. No. 127393, 4 December 1998,
209 SCRA 708 that: “The attestation
contained in the certification on non-forum shopping requires personal
knowledge by the party who executed the same.
To merit the Court’s consideration, petitioners here must show
reasonable cause for failure to personally sign the certification. The petitioners must convince the Court that
the outright dismissal of the petition would defeat the administration of
justice.”
[15] Rollo, p. 9.
[16] Sec. 4, Rule 65,
1997 Rules of Civil Procedure. Under
the amendment introduced by A.M. No. 00-2-03-SC which took effect 1 September
2000, or after the factual milieu of this case occurred, the sixty (60) day
period shall be counted from notice of denial of a motion for
reconsideration. Note that the instant
case was initiated on 15 April 1996 with petitioners filing a complaint with
the Labor Arbiter for illegal dismissal with prayer for reinstatement, backwages,
moral and exemplary damages and attorney's fees (see Decision, p. 2, 3rd par.).
[17] Valentin Ortiz v.
Court of Appeals, G.R. No. 127393, 4 December 1998, 209 SCRA 708.
[18] Made unnecessary the
one (1)-month notice to the worker and the DOLE prior to termination required
by Art. 283 of the Labor Code.
[19] See Triple Eight
Integrated Services, Inc. v. NLRC, G.R. No. 129584, 3 December 1998, 299 SCRA
608; Prime Marine Services, Inc. v. NLRC, G.R. No. 97945, 8 October 1998, 297
SCRA 394; Mercidar Fishing Corporation v. NLRC, G.R. No. 112574, 8 October 1998,
297 SCRA 440; and, Habana v. NLRC, G.R. No. 121486, 16 September 1998, 288 SCRA
537.
[20] Government Service
Insurance System v. Court of Appeals, G.R. No. 128523, 25 September 1998, 296
SCRA 514.
[21] Asian Alcohol
Corporation v. NLRC, G.R. No. 131108, 25 March 1999, 305 SCRA 416.
[22] Wiltshire File Co.,
Inc. v. NLRC, G.R. No. 82249, 7 February 1991, 193 SCRA 665
[23] Rollo, p. 76.
[24] Id., p. 13.
[25] G.R. No. 82249, 7
February 1991, 193 SCRA 665.
[26] Rollo, p. 10.
[27] Labor Congress of
the Philippines v. NLRC, G.R. No. 116839, 13 July 1998, 292 SCRA 469.