MERCURY DRUG CORPORATION, G.R. No. 160509
Petitioner,
Present:
QUISUMBING, J.,
Chairperson,
CARPIO,
- versus - CARPIO MORALES, and
TINGA, JJ.
ZENAIDA G. SERRANO, Promulgated:
Respondent. March 10, 2006
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D E C I S I O
N
CARPIO, J.:
The Case
Before
the Court is a petition for review[1]
assailing the
The Facts
On
Mercury
alleged that on P120 payment of one of the customers. Mercury Recto-Soler
Branch’s General Manager Rolando Mateo (“Mateo”) and Supervisor Antonio
Concepcion (“Concepcion”) confronted Serrano about the incident. As a result, Serrano wrote a resignation
letter,[4] to
wit:
Dear Sir Mateo,
I’m sorry to informed [sic] you that one of my customer[s]
buy me [sic] 10 caps Squalene S at around 5:00 PM. I did not g[i]ve him the OR tape knowingly
that the money he gave was exact on the item he buy [sic].
I was
temp [sic] to do this, because he gave me exact amount on the item [sic]. But unknowingly, the customer came [back]
after 30 minutes and asked for the invoiced [sic]. I get
the money inside my pocket and issued him an official receipt. [sic]
Then Mr. Mateo talked to me about this. So, I voluntarily tender my resignation
effective Nov. 6, 1991.
(signed)
Zenaida
Serrano
Mercury did not accept Serrano’s
resignation. Instead, Mercury issued a
notice on 11 January 2002 requesting Serrano to appear before the Investigation
Committee[5]
composed of three management and three rank-and-file employees.[6]
The Investigation Committee
unanimously found Serrano guilty of dishonesty based on the following:
On
November 2, 1991, at about 2:45 P.M. Nympha de los Santos chanced upon Zenaida
Serrano at the back of the RX section of the Mercury Drug-Recto Soler Branch
while the latter was transferring money which were folded into small squares
(“maliliit at tupi-tupi”) from her pocket into her wallet. x x x
x x x x
Also two (2) pharmacy assistants told Mr.
Rolando A. Mateo, Branch Manager, that they saw Mrs. Serrano placing folded
money in her wallet. x x x On P100.00 went to buy at P120.00 went to buy Squalene x x x and he
returned with the goods without a receipt.
He reported to Mr. Mateo that he was not given a receipt. Mr. Mateo returned to the branch after he
instructed Mr. Alfonso Teresa, the mason, to follow after a while, look for the
pharmacy assistant who attended to him and ask for a receipt. Upon his arrival at the branch Mr. Mateo
advised Mr. Antonio Concepcion, Retail Supervisor, that a customer was not
issued a cash register tape and will return to ask for an official
receipt. x x x [Mateo] told Mr.
Concep[c]ion that it was Ms. Serrano who served the customer and he should
observe Ms. Serrano. x x x [Teresa]
arrived at the branch [and] talked with another pharmacy assistant who in turn
informed Ms. Serrano that a customer was looking for her. Mr. Concepcion observed that Ms. Serrano grew
pale x x x and nervous. x x x [Serrano]
went to the customers counter with her hand on her pocket and told the customer
“Sandali lang ho”. She then tried to
distract Mr. Concepcion’s attention by requesting the latter to sign a refund
slip but Mr. Concepcion told her to attend first to the customer who was asking
for an OR. From the customers counter
she bowed down near the area from the plastic bags while holding on to her
pocket, then went around the shelves to the rear of the store. She returned with the P120.00 folded like cigarette and inserted the
money in the edge of the sales sheet, prepared the cash slip, then dictated the
amount to be punched by the cashier in the cash register.
At this point, Mr. Concepcion asked Ms.
Rosalinda Nicolas if the amount was punched only after the customer came back
to claim for a receipt and when the cashier replied “yes”, Mr. Concepcion advised
Ms. Serrano to follow him to the manager’s office.
Ms. Serrano on the other hand claimed that
at about P120.00. To lessen the number of customers she handed
the stock to the customer and placed the money on her “sulatan” (sales
sheet). After delivering the 10 Squalene
she again took customers’ orders and had her sales punched. She, however, forgot about the P120.00.
And while she was preparing an order worth P16,000.00 the customer came back asking for a
receipt and it was only then that she recalled that she had not yet had her
sales of 10 Squalene punched by the cashier.
x x x the cashier, Rosalinda Nicolas testified
that the sales sheet was on the cashier’s counter and that Ms. Serrano never
brought it anywhere. The cashier
likewise testified that the P120.00 came from her pocket, folded like a cigarette and was inserted
by Ms. Serrano in her sales sheet after she went around before she prepared the
cash slips. x x x
x x x x
From the acts of Ms. Serrano the intention
to pocket the P120.00
is evident. Firstly, she blatantly
disregard[ed] the house rule against salesclerks bringing their personal money
with them while in the area. Secondly,
the manner in which the money was folded (“like a cigarette”) shows that Ms.
Serrano took time and effort to make the money easy to hide and to transfer to
her wallet as she was observed to have done in several occasions. And having spent time and effort to fold the
money it is unlikely that she could have forgotten it. Again the manner the
money was folded is incongruous with her claim that at the time she served 4 to
7 customers. Thirdly, Ms. Serrano did
not search her sales sheet when the customer came back asking for a
receipt. On the other hand she was seen
to have taken the money from her pocket, go around the shelves to the rear of
the store and insert the money in her sales sheet only after she went back to
the cashiers counter. Fourthly, if
indeed the money was inserted in the sales sheet she would have seen it while
dictating her other sales to the cashier.
Fifth, her behavior at the time was that of a cornered guilty offender. She grew pale, “nataranta [at]
paikot-ikot”. She likewise tried to
distract the supervisors’ attention, which only shows clearly that she had
something to hide.[7] (Emphasis
supplied)
Mercury
sent Serrano a letter dated
On
In her position
paper, Serrano reiterated her allegation during the in-house investigation that
she was serving five customers simultaneously at the time of the incident. Then, a male customer bought 10 capsules of
Squalene-S paying exactly P120, consisting of one P100 bill and
one P20 bill. The male customer
asked Serrano to hurry up while she was at the cashier’s counter. As there were four other customers to be
served who were also in a hurry, she left the P120 with the cashier and
gave the capsules to the customer. After
Serrano finished serving the other four customers, the male customer, who did
not ask for or perhaps forgot to get the receipt, could no longer be
found. Since she was busy at the time,
Serrano claimed she forgot about the payment.[8]
On
The Labor Arbiter stressed that there
was no basis to presume that Serrano had no more intention of remitting the P120
paid by the customer, for in fact Serrano did remit the amount to the
cashier. The Labor Arbiter also held
that Mercury did not observe due process in dismissing Serrano. Mercury did not give Serrano ample
opportunity to be heard and defend herself before she was dismissed.
The dispositive portion of the
decision of the Labor Arbiter reads:
WHEREFORE, all the foregoing premises being considered, judgment is hereby rendered finding respondent, MERCURY DRUG CORPORATION, guilty of illegally dismissing complainant, ZENAIDA G. SERRANO, without lawful cause and due process and thus ordered to reinstate her to her previous position without loss of seniority rights and other privileges with payment of full backwages.
It appearing that respondent,
through its representative, adopted malicious schemes and acted in a wanton,
oppressive and malevolent manner in effecting the dismissal of complainant, who
was found by this Office to have been framed-up and was forced to resign,
respondent therefore is liable for moral damages in the amount of Five Hundred
Thousand Pesos (P500,000.00).
Likewise, for causing complainant to secure the services of a lawyer to safeguard her rights and interests, respondent should be assessed attorney’s fees in the amount equivalent to ten percent (10%) of the monetary award in favor of complainant. x x x
The charge of unfair labor practice is dismissed for lack of merit.
SO ORDERED.[9]
On
appeal, the NLRC reversed the Labor Arbiter and dismissed the complaint of
Serrano for lack of merit.
The NLRC found Serrano dishonest in
the performance of her duties as pharmacy assistant, which involved the
custody, handling or care and protection of Mercury’s goods. The NLRC based this finding on Serrano’s
alleged deliberate failure to issue a receipt for the sale of 10 Squalene-S
capsules worth P120 and which payment she tried to pocket. The NLRC further held that the fact that
Mercury did not lose anything was of no moment.
When there is dishonesty, actual damage is immaterial.
The NLRC gave credence to the
testimonies of Mercury’s witnesses and noted the fact that Serrano had already been
charged in court for qualified theft.
The NLRC added that in cases of dismissal for breach of trust and
confidence, proof beyond reasonable doubt of an employee’s misconduct is not
required. It is sufficient that the
employer had reasonable ground to believe that the employee was responsible for
the misconduct rendering him unworthy of the trust demanded by his position.
The NLRC further held that Serrano
was not denied of due process before her dismissal. The NLRC noted that that
there was an in-house investigation prior to Serrano’s termination where all
the witnesses against her were presented.
The NLRC ruled that it is “not the denial of the right to be heard but
the denial of the opportunity to be heard” that constitutes violation of due
process.
Serrano went to the Court of Appeals
for relief.
The Ruling of the Court of Appeals
The
Court of Appeals reversed the decision of the NLRC and upheld the findings of
the Labor Arbiter. The Court of Appeals found
that the evidence against Serrano were insubstantial and unreliable to find her
guilty of pocketing the P120 payment.
The
Court of Appeals also ruled that Mercury denied Serrano of due process before
terminating her. While Mercury gave Serrano a notice of termination, it did not
give any written notice informing Serrano of the specific charge against
her.
The
Court of Appeals further held that since the relationship between Mercury and
Serrano was severely strained, reinstatement was no longer possible. The dispositive portion of the Court of
Appeals’s Decision of
WHEREFORE, the petition is GRANTED. The assailed Decision and Resolution of the NLRC are ANNULLED. Private respondent Mercury Drug Corporation is hereby ordered to pay petitioner Zenaida G. Serrano the following amounts:
(a)
Separation Pay in the amount of P73,700.00;
(b)
Full backwages from date of dismissal until the
finality of this Decision, including P43,215.00 as 13th month
pay; and
(c)
Reduced Moral Damages in the amount of P50,000.00
and Attorney’s Fees in the fixed amount of P50,000.00.
SO ORDERED.[10]
Mercury filed a motion for
reconsideration which the Court of Appeals denied in its
Hence, this
petition.
The Issues
The
issues in this case are: (1) whether there was sufficient ground for Mercury to
terminate the employment of Serrano, and (2) whether Mercury denied Serrano of
due process when Mercury terminated her.
The Ruling of the Court
The
petition is partly meritorious.
On the legality of the dismissal
Mercury terminated the employment of Serrano on the ground
of loss of trust and confidence due to dishonesty. Mercury relies on Article 282(c) of the Labor
Code which states that an employee may be terminated on the ground of fraud or
willful breach by the employee of the trust reposed on him by his employer.
Loss of trust and confidence is
premised on the fact that the employee holds a position whose functions may
only be performed by someone who has the confidence of management. Such employee has a greater duty to
management than ordinary workers. The
betrayal of this trust is the essence of the offense which is a ground for the
employee’s termination.[11] In this case, there
is no question that Mercury had the right to expect full trust and confidence
from Serrano because of her position.
Serrano’s routine duty was to handle Mercury’s goods and receive
customers’ payments for eventual handing to the cashier.
Loss of trust and confidence,
which should be genuine, does not require proof beyond reasonable doubt.[12] In this case, Mercury alleges that Serrano
committed dishonesty by pocketing the P120 payment of one of its customers
during an entrapment initiated by Mercury Recto-Soler Branch Manager
Mateo.
In her resignation
letter, Serrano apologized for not issuing a receipt to one of Mercury’s
customers for the purchase of 10 Squalene-S capsules. Serrano also admitted getting the payment
inside her pocket before handing it to the cashier. However, Serrano explains that she was then serving
several customers simultaneously and forgot about the payment. Serrano remembered it only when the customer
returned and asked for a receipt.
The cashier Rosalinda Nicolas
(“Nicolas”) and P100 bill
and one P20 bill, when the customer returned to the branch. The manner by which the money bills were
folded (like a cigarette) belies Serrano’s claim that she forgot about the
payment.[14]
Moreover, Federico
Lugui (“Lugui”) a.k.a. Alfredo Teresa Lugui, who posed as a customer during the
entrapment, testified in the qualified theft case against Serrano that he saw
Serrano took his payment out from her pocket.
Lugui’s affirmative testimony has greater evidentiary weight than the
denial of Serrano.[15] The relevant portion of Lugui’s testimony reads:
Q: And what did you do after receiving [those] ten tablets of Squalene?
A: I waited.
Q: And how much did you pay for those medicine[s]?
A: One hundred twenty (P120.00)
pesos.
Q: Will you please describe to us the denomination of the money you gave to Miss Serrano?
A: One whole hundred pesos bill and one piece twenty peso bill.
Q: So, you mentioned you waited. What were you waiting at that time?
A: To get a receipt.
x x x x
COURT: When you were not given receipt, what did you do?
A: I went back to Grande Restaurant.
x x x x
Q: Upon arriving at the drugstore for the second time, what did you do, if any?
A: I saw one co-employee where I asked for a receipt.
Q: And what was the reaction of that employee?
A: I pointed to her, Zenaida, that I purchased medicine from her.
Q: So, upon learning that you were requesting for a receipt, what was the reaction, if any, of the accused?
A: She
took out from her pocket the money and handed it to the cashier.
x x x x
Q: When you got back to Mercury Drug, did you immediately seek out Miss Serrano?
A: Yes, I was asked by the cashier, “Kanino ka bumili” (from whom did you buy) and I pointed to her.
Q: What happened next?
A: She shouted, saying I am asking for a receipt.
Q: Who shouted?
A: The other cashier, then I pointed to Miss Serrano.
Q: What did that cashier shout about?
A: She said “Zeny, yung recibo nung bumili sa yo.” (Zeny, the receipt of the one who purchased from you).
Q: Did you notice where was Zenaida at that time when the cashier shouted “Zeny yung recibo”?
A: Farther from the cashier.
Q: When you heard … Did you see the cashier shouted at Zenaida?
A: Yes, mam [sic].
Q: All right, when this cashier shouted at Zenaida, did you notice if Zenaida heard the shout?
A: Yes.
Q: What happened next after that?
A: She
took the money out from her pocket.
Q: How did you happen to see that, Mr. Witness?
A: I saw Zenaida got the money and gave it to the cashier.[16] (Emphasis supplied)
Serrano’s act of pocketing the
payment and handing it to the cashier only after the customer returned to the
branch gave Mercury reasonable ground to believe, if
not entertain the moral conviction, that Serrano is guilty of dishonesty. This made her unworthy of the trust and
confidence reposed on her by Mercury.[17]
Further, the evidence for
the qualified theft charge, establishing probable cause after the preliminary
investigation, constitutes just cause for Serrano’s termination based on loss
of trust and confidence. While the trial
court eventually dismissed the theft case against Serrano for the prosecution’s
failure to prove her guilt beyond reasonable doubt, the evidence against Serrano
substantially proved her culpability warranting her dismissal from employment.[18]
Serrano’s act of dishonesty did not require criminal conviction.[19] That Serrano eventually remitted the payment
to the cashier did not obliterate or mitigate her wrongdoing.[20]
The Court rejects Serrano’s
claim that Mercury framed her up. Serrano failed to present any evidence to
substantiate her defense
of frame-up.[21] Serrano claims that Mercury’s motive for the
“frame-up” and her dismissal was to “ultimately bust the union.”[22] However, the charges for unfair labor
practice against Mercury were dismissed for lack of merit by the Labor
Arbiter. Consequently, Serrano’s
allegation of unfair labor practice as Mercury’s motive to frame her up must
fail.
On the denial of due process
In dismissing an
employee, the employer must serve the employee two notices: (1) the first to
inform the employee of the particular acts or omissions for which the employer
seeks his dismissal, and (2) the second to inform the
employee of his employer’s decision to terminate him.[23] The first notice must state that the employer seeks dismissal
for the act or omission charged against the employee, otherwise, the notice
does not comply with the rules.[24]
In Maquiling v. Philippine Tuberculosis Society, Inc.,[25] the Court held that the first notice must inform outright the employee that an investigation will be conducted on the charges specified in such notice which, if proven, will result in the employee’s dismissal. The Court explained the reason for this rule as follows:
This notice will afford the employee an opportunity to avail all defenses and exhaust all remedies to refute the allegations hurled against him for what is at stake is his very life and limb his employment. Otherwise, the employee may just disregard the notice as a warning without any disastrous consequence to be anticipated. Absent such statement, the first notice falls short of the requirement of due process. One’s work is everything, thus, it is not too exacting to impose this strict requirement on the part of the employer before the dismissal process be validly effected. This is in consonance with the rule that all doubts in the implementation and interpretation of the provisions of the Labor Code, including its implementing rules and regulations, shall be resolved in favor of labor.[26]
In this case, Mercury failed to
satisfy the two-notice requirement.
Mercury admits it did not issue the first notice. However, Mercury argues that if the purpose
of the first notice was achieved despite the absence of the first notice, and
the employee was given a chance to air his side before his termination, there
is due process.[27] While Mercury issued a notice on
investigation and gave Serrano a notice
of termination prior to Serrano’s dismissal did not cure the absence of the
first notice required by law.[28]
In Agabon
v. NLRC,[29]
the Court held that if the dismissal was for cause, the lack of
statutory due process should not nullify the dismissal, or render it illegal or
ineffectual. However, Mercury’s violation of Serrano’s right to statutory
due process warrants the payment of indemnity[30]
in the form of nominal damages. The amount of such damages is addressed
to the sound discretion of the Court, taking into account the relevant
circumstances.[31]
Accordingly, the Court deems the amount of P30,000 sufficient as nominal
damages, pursuant to prevailing jurisprudence.[32]
WHEREFORE, the Court PARTLY GRANTS the petition. The Court SETS ASIDE the P30,000 as nominal damages for failure to comply fully
with the notice requirement as part of due process. No pronouncement as to costs.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:
LEONARDO A. QUISUMBING
Associate
Justice
Chairperson
CONCHITA CARPIO MORALES DANTE O. TINGA
Associate Justice 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.
LEONARDO A. QUISUMBING
Associate Justice
Chairperson
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 had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.
ARTEMIO V. PANGANIBAN
Chief Justice
[1] Under Rule 45 of the Rules of Court.
[2] Penned by Associate Justice Ruben T. Reyes, with Associate Justices Remedios Salazar-Fernando and Edgardo F. Sundiam, concurring.
[3] Rollo, pp. 160-161.
[4]
[5]
[6] These employees were Alicia A. Lumanog, Angelito Dizon, Edgardo B. Valbuena, Edmund Gianan, Conrado Paddayuman, and Raul Ruloma.
[7] Rollo, pp. 90-92.
[8]
[9]
[10]
[11] See
Caingat v. National Labor Relations Commission, G.R. No. 154308,
[12] Central Pangasinan Electric Cooperative, Inc. v. Macaraeg, 443 Phil. 866 (2003).
[13] Rollo, pp. 101-102.
[14]
[15] See
People v. Jamiro, 344 Phil.
700 (1997). See also Jamer v. NLRC, 344 Phil. 181 (1997).
[16] Exh. “4,” rollo, pp.
111-117.
[17] See
Jamer v. NLRC, supra note 15.
[18] See Vergara v. NLRC, 347 Phil. 161 (1997).
[19]
[20] See Santos v. San Miguel Corp., 447 Phil. 264 (2003), where the Court held that misappropriation of company funds, although the shortages had been fully restituted, is a valid ground to terminate the services of an employee of the company for loss of trust and confidence.
[21] See Office of the Court Administrator v. Barron, 358 Phil. 12 (1998).
[22] Rollo, p. 77.
[23] Electro System Industries Corporation v.
National Labor Relations Commission, G.R. No. 165282,
[24]
[25] G.R.
No. 143384,
[26]