GOYA, INC., Petitioner, v. GOYA, INC.

EMPLOYEES UNION-
FFW, Respondent.
D E C I S I O N
PERALTA, J.:
This petition for review on certiorari under Rule 45 of the Rules
of Civil Procedure seeks to reverse and set aside the June 16,
2005 Decision
1
and October 12, 2005 Resolution
2
of the Court of
Appeals in CA-G.R. SP No. 87335, which sustained the October
26, 2004 Decision
3
of Voluntary Arbitrator Bienvenido E.
Laguesma, the dispositive portion of which reads:cralawlibrary
WHEREFORE, judgment is hereby rendered declaring that the
Company is NOT guilty of unfair labor practice in engaging the
services of PESO.
The company is, however, directed to observe and comply with
its commitment as it pertains to the hiring of casual employees
when necessitated by business circumstances.
4
?r?l1
The facts are simple and appear to be undisputed.
Sometime in January 2004, petitioner Goya, Inc. (Company), a
domestic corporation engaged in the manufacture, importation,
and wholesale of top quality food products, hired contractual
employees from PESO Resources Development Corporation
(PESO) to perform temporary and occasional services in its
factory in Parang, Marikina City. This prompted respondent
Goya, Inc. Employees UnionFFW (Union) to request for a
grievance conference on the ground that the contractual workers
do not belong to the categories of employees stipulated in the
existing Collective Bargaining Agreement (CBA).
5
When the
matter remained unresolved, the grievance was referred to the
National Conciliation and Mediation Board (NCMB) for voluntary
arbitration.
During the hearing on July 1, 2004, the Company and the Union
manifested before Voluntary Arbitrator (VA) Bienvenido E.
Laguesma that amicable settlement was no longer possible;
hence, they agreed to submit for resolution the solitary issue of
"[w]hether or not the Company is guilty of unfair labor acts in
engaging the services of PESO, a third party service provider,
under the existing CBA, laws, and jurisprudence."
6
Both parties
thereafter filed their respective pleadings.
The Union asserted that the hiring of contractual employees
from PESO is not a management prerogative and in gross
violation of the CBA tantamount to unfair labor practice (ULP). It
noted that the contractual workers engaged have been assigned
to work in positions previously handled by regular workers and
Union members, in effect violating Section 4, Article I of the
CBA, which provides for three categories of employees in the
Company, to wit:cralawlibrary
Section 4. Categories of Employees. The parties agree on the
following categories of employees:cralawlibrary
(a) Probationary Employee. One hired to occupy a regular rank-
and-file position in the Company and is serving a probationary
period. If the probationary employee is hired or comes from
outside the Company (non-Goya, Inc. employee), he shall be
required to undergo a probationary period of six (6) months,
which period, in the sole judgment of management, may be
shortened if the employee has already acquired the knowledge
or skills required of the job. If the employee is hired from the
casual pool and has worked in the same position at any time
during the past two (2) years, the probationary period shall be
three (3) months.
(b) Regular Employee. An employee who has satisfactorily
completed his probationary period and automatically granted
regular employment status in the Company.
(c) Casual Employee, One hired by the Company to perform
occasional or seasonal work directly connected with the regular
operations of the Company, or one hired for specific projects of
limited duration not connected directly with the regular
operations of the Company.
It was averred that the categories of employees had been a part
of the CBA since the 1970s and that due to this provision, a pool
of casual employees had been maintained by the Company from
which it hired workers who then became regular workers when
urgently necessary to employ them for more than a year.
Likewise, the Company sometimes hired probationary employees
who also later became regular workers after passing the
probationary period. With the hiring of contractual employees,
the Union contended that it would no longer have probationary
and casual employees from which it could obtain additional
Union members; thus, rendering inutile Section 1, Article III
(Union Security) of the CBA, which states:cralawlibrary
Section 1. Condition of Employment. As a condition of continued
employment in the Company, all regular rank-and-file
employees shall remain members of the Union in good standing
and that new employees covered by the appropriate bargaining
unit shall automatically become regular employees of the
Company and shall remain members of the Union in good
standing as a condition of continued employment.
The Union moreover advanced that sustaining the Companys
position would easily weaken and ultimately destroy the former
with the latters resort to retrenchment and/or retirement of
employees and not filling up the vacant regular positions
through the hiring of contractual workers from PESO, and that a
possible scenario could also be created by the Company wherein
it could "import" workers from PESO during an actual strike.
In countering the Unions allegations, the Company argued that:
(a) the law expressly allows contracting and subcontracting
arrangements through Department of Labor and Employment
(DOLE) Order No. 18-02; (b) the engagement of contractual
employees did not, in any way, prejudice the Union, since not a
single employee was terminated and neither did it result in a
reduction of working hours nor a reduction or splitting of the
bargaining unit; and (c) Section 4, Article I of the CBA merely
provides for the definition of the categories of employees and
does not put a limitation on the Companys right to engage the
services of job contractors or its management prerogative to
address temporary/occasional needs in its operation.
On October 26, 2004, VA Laguesma dismissed the Unions charge
of ULP for being purely speculative and for lacking in factual
basis, but the Company was directed to observe and comply
with its commitment under the CBA. The VA opined:cralawlibrary
We examined the CBA provision Section 4, Article I of the
CBAallegedly violated by the Company and indeed the
agreement prescribes three (3) categories of employees in the
Company and provides for the definition, functions and duties of
each. Material to the case at hand is the definition as regards
the functions of a casual employee described as
follows:cralawlibrary
Casual Employee One hired by the COMPANY to perform
occasional or seasonal work directly connected with the regular
operations of the COMPANY, or one hired for specific projects of
limited duration not connected directly with the regular
operations of the COMPANY.
While the foregoing agreement between the parties did eliminate
managements prerogative of outsourcing parts of its operations,
it serves as a limitation on such prerogative particularly if it
involves functions or duties specified under the aforequoted
agreement. It is clear that the parties agreed that in the event
that the Company needs to engage the services of additional
workers who will perform "occasional or seasonal work directly
connected with the regular operations of the COMPANY," or
"specific projects of limited duration not connected directly with
the regular operations of the COMPANY", the Company can hire
casual employees which is akin to contractual employees. If we
note the Companys own declaration that PESO was engaged to
perform "temporary or occasional services" (See the Companys
Position Paper, at p. 1), then it should have directly hired the
services of casual employees rather than do it through PESO.
It is evident, therefore, that the engagement of PESO is not in
keeping with the intent and spirit of the CBA provision in
question. It must, however, be stressed that the right of
management to outsource parts of its operations is not totally
eliminated but is merely limited by the CBA. Given the
foregoing, the Companys engagement of PESO for the given
purpose is indubitably a violation of the CBA.
7
?r?l1
While the Union moved for partial reconsideration of the VA
Decision,
8
the Company immediately filed a petition for
review
9
before the Court of Appeals (CA) under Rule 43 of the
Revised Rules of Civil Procedure to set aside the directive to
observe and comply with the CBA commitment pertaining to the
hiring of casual employees when necessitated by business
circumstances. Professing that such order was not covered by
the sole issue submitted for voluntary arbitration, the Company
assigned the following errors:cralawlibrary
THE HONORABLE VOLUNTARY ARBITRATOR EXCEEDED HIS
POWER WHICH WAS EXPRESSLY GRANTED AND LIMITED BY
BOTH PARTIES IN RULING THAT THE ENGAGEMENT OF PESO IS
NOT IN KEEPING WITH THE INTENT AND SPIRIT OF THE
CBA.
10
?r?l1
THE HONORABLE VOLUNTARY ARBITRATOR COMMITTED A
PATENT AND PALPABLE ERROR IN DECLARING THAT THE
ENGAGEMENT OF PESO IS NOT IN KEEPING WITH THE INTENT
AND SPIRIT OF THE CBA.
11
?r?l1
On June 16, 2005, the CA dismissed the petition. In dispensing
with the merits of the controversy, it held:cralawlibrary
This Court does not find it arbitrary on the part of the Hon.
Voluntary Arbitrator in ruling that "the engagement of PESO is
not in keeping with the intent and spirit of the CBA." The said
ruling is interrelated and intertwined with the sole issue to be
resolved that is, "Whether or not the Company is guilty of unfair
labor practice in engaging the services of PESO, a third party
service provider, under existing CBA, laws, and jurisprudence."
Both issues concern the engagement of PESO by the Company
which is perceived as a violation of the CBA and which
constitutes as unfair labor practice on the part of the Company.
This is easily discernible in the decision of the Hon. Voluntary
Arbitrator when it held:cralawlibrary
x x x x While the engagement of PESO is in violation of Section
4, Article I of the CBA, it does not constitute unfair labor practice
as it (sic) not characterized under the law as a gross violation of
the CBA. Violations of a CBA, except those which are gross in
character, shall no longer be treated as unfair labor practice.
Gross violations of a CBA means flagrant and/or malicious
refusal to comply with the economic provisions of such
agreement. x x x
Anent the second assigned error, the Company contends that
the Hon. Voluntary Arbitrator erred in declaring that the
engagement of PESO is not in keeping with the intent and spirit
of the CBA. The Company justified its engagement of contractual
employees through PESO as a management prerogative, which
is not prohibited by law. Also, it further alleged that no provision
under the CBA limits or prohibits its right to contract out certain
services in the exercise of management prerogatives.
Germane to the resolution of the above issue is the provision in
their CBA with respect to the categories of the
employees:cralawlibrary
x x x
A careful reading of the above-enumerated categories of
employees reveals that the PESO contractual employees do not
fall within the enumerated categories of employees stated in the
CBA of the parties. Following the said categories, the Company
should have observed and complied with the provision of their
CBA. Since the Company had admitted that it engaged the
services of PESO to perform temporary or occasional services
which is akin to those performed by casual employees, the
Company should have tapped the services of casual employees
instead of engaging PESO.
In justifying its act, the Company posits that its engagement of
PESO was a management prerogative. It bears stressing that a
management prerogative refers to the right of the employer to
regulate all aspects of employment, such as the freedom to
prescribe work assignments, working methods, processes to be
followed, regulation regarding transfer of employees, supervision
of their work, lay-off and discipline, and dismissal and recall of
work, presupposing the existence of employer-employee
relationship. On the basis of the foregoing definition, the
Companys engagement of PESO was indeed a management
prerogative. This is in consonance with the pronouncement of
the Supreme Court in the case of Manila Electric Company v.
Quisumbing where it ruled that contracting out of services is an
exercise of business judgment or management prerogative.
This management prerogative of contracting out services,
however, is not without limitation. In contracting out services,
the management must be motivated by good faith and the
contracting out should not be resorted to circumvent the law or
must not have been the result of malicious arbitrary actions. In
the case at bench, the CBA of the parties has already provided
for the categories of the employees in the
Companysestablishment. These categories of employees
particularly with respect to casual employees serve as limitation
to the Companys prerogative to outsource parts of its operations
especially when hiring contractual employees. As stated earlier,
the work to be performed by PESO was similar to that of the
casual employees. With the provision on casual employees, the
hiring of PESO contractual employees, therefore, is not in
keeping with the spirit and intent of their CBA. (Citations
omitted)
12
?r?l1
The Company moved to reconsider the CA Decision,
13
but it was
denied;
14
hence, this petition.
Incidentally, on July 16, 2009, the Company filed a
Manifestation
15
informing this Court that its stockholders and
directors unanimously voted to shorten the Companys corporate
existence only until June 30, 2006, and that the three-year
period allowed by law for liquidation of the Companys affairs
already expired on June 30, 2009. Referring to Gelano v. Court
of Appeals,
16
Public Interest Center, Inc. v. Elma,
17
and Atienza
v. Villarosa,
18
it urged Us, however, to still resolve the case for
future guidance of the bench and the bar as the issue raised
herein allegedly calls for a clarification of a legal principle,
specifically, whether the VA is empowered to rule on a matter
not covered by the issue submitted for arbitration.
Even if this Court would brush aside technicality by ignoring the
supervening event that renders this case moot and
academic
19
due to the permanent cessation of the Companys
business operation on June 30, 2009, the arguments raised in
this petition still fail to convince Us.
We confirm that the VA ruled on a matter that is covered by the
sole issue submitted for voluntary arbitration. Resultantly, the
CA did not commit serious error when it sustained the ruling that
the hiring of contractual employees from PESO was not in
keeping with the intent and spirit of the CBA. Indeed, the
opinion of the VA is germane to, or, in the words of the CA,
"interrelated and intertwined with," the sole issue submitted for
resolution by the parties. This being said, the Companys
invocation of Sections 4 and 5, Rule IV
20
and Section 5, Rule
VI
21
of the Revised Procedural Guidelines in the Conduct of
Voluntary Arbitration Proceedings dated October 15, 2004 issued
by the NCMB is plainly out of order.
Likewise, the Company cannot find solace in its cited case of
Ludo & Luym Corporation v. Saornido.
22
In Ludo, the company
was engaged in the manufacture of coconut oil, corn starch,
glucose and related products. In the course of its business
operations, it engaged the arrastre services of CLAS for the
loading and unloading of its finished products at the wharf. The
arrastre workers deployed by CLAS to perform the services
needed were subsequently hired, on different dates, as Ludos
regular rank-and-file employees. Thereafter, said employees
joined LEU, which acted as the exclusive bargaining agent of the
rank-and-file employees. When LEU entered into a CBA with
Ludo, providing for certain benefits to the employees (the
amount of which vary according to the length of service
rendered), it requested to include in its members period of
service the time during which they rendered arrastre services so
that they could get higher benefits. The matter was submitted
for voluntary arbitration when Ludo failed to act. Per submission
agreement executed by both parties, the sole issue for
resolution was the date of regularization of the workers. The VA
Decision ruled that: (1) the subject employees were engaged in
activities necessary and desirable to the business of Ludo, and
(2) CLAS is a labor-only contractor of Ludo. It then disposed as
follows: (a) the complainants were considered regular
employees six months from the first day of service at CLAS; (b)
the complainants, being entitled to the CBA benefits during the
regular employment, were awarded sick leave, vacation leave,
and annual wage and salary increases during such period; (c)
respondents shall pay attorneys fees of 10% of the total award;
and (d) an interest of 12% per annum or 1% per month shall be
imposed on the award from the date of promulgation until fully
paid. The VA added that all separation and/or retirement
benefits shall be construed from the date of regularization
subject only to the appropriate government laws and other
social legislation. Ludo filed a motion for reconsideration, but the
VA denied it. On appeal, the CA affirmed in toto the assailed
decision; hence, a petition was brought before this Court raising
the issue, among others, of whether a voluntary arbitrator can
award benefits not claimed in the submission agreement. In
denying the petition, We ruled:cralawlibrary
Generally, the arbitrator is expected to decide only those
questions expressly delineated by the submission agreement.
Nevertheless, the arbitrator can assume that he has the
necessary power to make a final settlement since arbitration is
the final resort for the adjudication of disputes. The succinct
reasoning enunciated by the CA in support of its holding, that
the Voluntary Arbitrator in a labor controversy has jurisdiction to
render the questioned arbitral awards, deserves our
concurrence, thus:cralawlibrary
In general, the arbitrator is expected to decide those questions
expressly stated and limited in the submission agreement.
However, since arbitration is the final resort for the adjudication
of disputes, the arbitrator can assume that he has the power to
make a final settlement. Thus, assuming that the submission
empowers the arbitrator to decide whether an employee was
discharged for just cause, the arbitrator in this instance can
reasonably assume that his powers extended beyond giving a
yes-or-no answer and included the power to reinstate him with
or without back pay.
In one case, the Supreme Court stressed that "xxx the Voluntary
Arbitrator had plenary jurisdiction and authority to interpret the
agreement to arbitrate and to determine the scope of his own
authority subject only, in a proper case, to the certiorari
jurisdiction of this Court. The Arbitrator, as already indicated,
viewed his authority as embracing not merely the determination
of the abstract question of whether or not a performance bonus
was to be granted but also, in the affirmative case, the amount
thereof.
By the same token, the issue of regularization should be viewed
as two-tiered issue. While the submission agreement mentioned
only the determination of the date or regularization, law and
jurisprudence give the voluntary arbitrator enough leeway of
authority as well as adequate prerogative to accomplish the
reason for which the law on voluntary arbitration was created
speedy labor justice. It bears stressing that the underlying
reason why this case arose is to settle, once and for all, the
ultimate question of whether respondent employees are entitled
to higher benefits. To require them to file another action for
payment of such benefits would certainly undermine labor
proceedings and contravene the constitutional mandate
providing full protection to labor.
23
?r?l1
Indubitably, Ludo fortifies, not diminishes, the soundness of the
questioned VA Decision. Said case reaffirms the plenary
jurisdiction and authority of the voluntary arbitrator to interpret
the CBA and to determine the scope of his/her own authority.
Subject to judicial review, the leeway of authority as well as
adequate prerogative is aimed at accomplishing the rationale of
the law on voluntary arbitration speedy labor justice. In this
case, a complete and final adjudication of the dispute between
the parties necessarily called for the resolution of the related
and incidental issue of whether the Company still violated the
CBA but without being guilty of ULP as, needless to state, ULP is
committed only if there is gross violation of the agreement.
Lastly, the Company kept on harping that both the VA and the
CA conceded that its engagement of contractual workers from
PESO was a valid exercise of management prerogative. It is
confused. To emphasize, declaring that a particular act falls
within the concept of management prerogative is significantly
different from acknowledging that such act is a valid exercise
thereof. What the VA and the CA correctly ruled was that the
Companys act of contracting out/outsourcing is within the
purview of management prerogative. Both did not say, however,
that such act is a valid exercise thereof. Obviously, this is due to
the recognition that the CBA provisions agreed upon by the
Company and the Union delimit the free exercise of
management prerogative pertaining to the hiring of contractual
employees. Indeed, the VA opined that "the right of the
management to outsource parts of its operations is not totally
eliminated but is merely limited by the CBA," while the CA held
that "this management prerogative of contracting out services,
however, is not without limitation. x x x These categories of
employees particularly with respect to casual employees serve
as limitation to the Companys prerogative to outsource parts of
its operations especially when hiring contractual
employees."???r?bl? ??r??l l?? l?br?r
A collective bargaining agreement is the law between the
parties:cralawlibrary
It is familiar and fundamental doctrine in labor law that the CBA
is the law between the parties and they are obliged to comply
with its provisions. We said so in Honda Phils., Inc. v. Samahan
ng Malayang Manggagawa sa Honda:cralawlibrary
A collective bargaining agreement or CBA refers to the
negotiated contract between a legitimate labor organization and
the employer concerning wages, hours of work and all other
terms and conditions of employment in a bargaining unit. As in
all contracts, the parties in a CBA may establish such
stipulations, clauses, terms and conditions as they may deem
convenient provided these are not contrary to law, morals, good
customs, public order or public policy. Thus, where the CBA is
clear and unambiguous, it becomes the law between the parties
and compliance therewith is mandated by the express policy of
the law.
Moreover, if the terms of a contract, as in a CBA, are clear and
leave no doubt upon the intention of the contracting parties, the
literal meaning of their stipulations shall control. x x x.
24
?r?l1
In this case, Section 4, Article I (on categories of employees) of
the CBA between the Company and the Union must be read in
conjunction with its Section 1, Article III (on union security).
Both are interconnected and must be given full force and effect.
Also, these provisions are clear and unambiguous. The terms are
explicit and the language of the CBA is not susceptible to any
other interpretation. Hence, the literal meaning should prevail.
As repeatedly held, the exercise of management prerogative is
not unlimited; it is subject to the limitations found in law,
collective bargaining agreement or the general principles of fair
play and justice
25
Evidently, this case has one of the restrictions-
the presence of specific CBA provisions-unlike in San Miguel
Corporation Employees Union-PTGWO v. Bersamira,
26
De
Ocampo v. NLRC,
27
Asian Alcohol Corporation v. NLRC,
28
and
Serrano v. NLRC
29
cited by the Company. To reiterate, the CBA is
the norm of conduct between the parties and compliance
therewith is mandated by the express policy of the law.
30
?r?l1
WHEREFORE, the petition is DENIED. The assailed June 16, 2005
Decision, as well as the October 12, 2005 Resolution of the
Court of Appeals, which sustained the October 26, 2004 Decision
of the Voluntary Arbitrator, are hereby AFFIRMED.







































BANKARD, INC., Petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION- FIRST DIVISION,
PAULO BUENCONSEJO,BANKARD EMPLOYEES UNION-
AWATU, Respondents.
MENDOZA, J .:
This Petition for Review on Certiorari under Rule 45 of the Rules of Court
seeks to review, reverse and set aside the October 20, 2005
Decision
1
and the February 21, 2006 Resolution
2
of the Court of Appeals
{CA), in CA-G.R. SP No. 68303, which affirmed the May 31, 2001
Resolution
3
and the September 24, 2001 Order
4
of the National Labor
Relations Commission (NLRC) in Certified Cases No. 000-185-00 and
000-191-00.
The Facts
On June 26, 2000, respondent Bankard Employees Union-AWATU
(Union) filed before the National Conciliation and Mediation Board
(NCMB) its first Notice of Strike (NOS), docketed as NS-06-225-
00,
5
alleging commission of unfair labor practices by petitioner Bankard,
Inc. (Bankard), to wit: 1) job contractualization; 2) outsourcing/contracting-
out jobs; 3) manpower rationalizing program; and 4) discrimination.
On July 3, 2000, the initial conference was held where the Union clarified
the issues cited in the NOS. On July 5, 2000, the Union held its strike vote
balloting where the members voted in favor of a strike. On July 10, 2000,
Bankard asked the Office of the Secretary of Labor to assume jurisdiction
over the labor dispute or to certify the same to the NLRC for compulsory
arbitration. On July 12, 2000, Secretary Bienvenido Laguesma (Labor
Secretary) of the Department of Labor and Employment (DOLE) issued
the order certifying the labor dispute to the NLRC.
6

On July 25, 2000, the Union declared a CBA bargaining deadlock. The
following day, the Union filed its second NOS, docketed as NS-07-265-
00,
7
alleging bargaining in bad faith on the part of Bankard. Bankard then
again asked the Office of the Secretary of Labor to assume jurisdiction,
which was granted. Thus, the Order, dated August 9, 2000, certifying the
labor dispute to the NLRC, was issued.
8

The Union, despite the two certification orders issued by the Labor
Secretary enjoining them from conducting a strike or lockout and from
committing any act that would exacerbate the situation, went on strike on
August 11, 2000.
9

During the conciliatory conferences, the parties failed to amicably settle
their dispute. Consequently, they were asked to submit their respective
position papers. Both agreed to the following issues:
1. Whether job contractualization or outsourcing or contracting-
out is an unfair labor practice on the part of the management.
2. Whether there was bad faith on the part of the management
when it bargained with the Union.
10

As regards the first issue, it was Bankards position that job
contractualization or outsourcing or contracting-out of jobs was a
legitimate exercise of management prerogative and did not constitute
unfair labor practice. It had to implement new policies and programs, one
of which was the Manpower Rationalization Program (MRP) in December
1999, to further enhance its efficiency and be more competitive in the
credit card industry. The MRP was an invitation to the employees to
tender their voluntary resignation, with entitlement to separation pay
equivalent to at least two (2) months salary for every year of service.
Those eligible under the companys retirement plan would still receive
additional pay. Thereafter, majority of the Phone Center and the Service
Fulfilment Division availed of the MRP. Thus, Bankard contracted an
independent agency to handle its call center needs.
11

As to the second issue, Bankard denied that there was bad faith on its
part in bargaining with the Union. It came up with counter-offers to the
Unions proposals, but the latters demands were far beyond what
management could give. Nonetheless, Bankard continued to negotiate in
good faith until the Memorandum of Agreement (MOA) re-negotiating the
provisions of the 1997-2002, Collective Bargaining Agreement (CBA) was
entered into between Bankard and the Union. The CBA was
overwhelmingly ratified by the Union members. For said reason, Bankard
contended that the issue of bad faith in bargaining had become moot and
academic.
12

On the other hand, the Union alleged that contractualization started in
Bankard in 1995 in the Records Communications Management Division,
particularly in the mailing unit, which was composed of two (2) employees
and fourteen (14) messengers. They were hired as contractual workers to
perform the functions of the regular employees who had earlier resigned
and availed of the MRP.
13
According to the Union, there were other
departments in Bankard utilizing messengers to perform work load
considered for regular employees, like the Marketing Department, Voice
Authorizational Department, Computer Services Department, and Records
Retention Department. The Union contended that the number of regular
employees had been reduced substantially through the management
scheme of freeze-hiring policy on positions vacated by regular employees
on the basis of cost-cutting measures and the introduction of a more
drastic formula of streamlining its regular employees through the MRP.
14

With regard to the second issue, the Union averred that Bankards
proposals were way below their demands, showing that the management
had no intention of reaching an agreement. It was a scheme calculated to
force the Union to declare a bargaining deadlock.
15

On May 31, 2001, the NLRC issued its Resolution
16
declaring that the
management committed acts considered as unfair labor practice (ULP)
under Article 248(c) of the Labor Code. It ruled that:
The act of management of reducing its number of employees thru
application of the Manpower Rationalization Program and subsequently
contracting the same to other contractual employees defeats the purpose
or reason for streamlining the employees. The ultimate effect is to reduce
the number of union members and increasing the number of contractual
employees who could never be members of the union for lack of
qualification. Consequently, the union was effectively restrained in their
movements as a union on their rights to self-organization. Management
had successfully limited and prevented the growth of the Union and the
acts are clear violation of the provisions of the Labor Code and could be
considered as Unfair Labor Practice in the light of the provisions of Article
248 paragraph (c) of the Labor Code.
17

The NLRC, however, agreed with Bankard that the issue of bargaining in
bad faith was rendered moot and academic by virtue of the finalization
and signing of the CBA between the management and the Union.
18

Unsatisfied, both parties filed their respective motions for partial
reconsideration.1wphi1 Bankard assailed the NLRC's finding of acts of
ULP on its part. The Union, on the other hand, assailed the NLRC ruling
on the issue of bad faith bargaining.
On September 24, 2001, the NLRC issued the Order
19
denying both
parties' motions for lack of merit.
On December 28, 2001, Bankard filed a petition for certiorari under Rule
65 with the CA arguing that the NLRC gravely abused its discretion
amounting to lack or excess of jurisdiction when:
1. It issued the Resolution, dated May 31, 2001, particularly in
finding that Bankard committed acts of unfair labor practice;
and,
2. It issued the Order dated September 24, 2001 denying
Bankard's partial motion for reconsideration.
20

The Union filed two (2) comments, dated January 22, 2002, through its
NCR Director, Cornelio Santiago, and another, dated February 6, 2002,
through its President, Paulo Buenconsejo, both praying for the dismissal
of the petition and insisting that Bankard's resort to contractualization or
outsourcing of contracts constituted ULP. It further alleged that Bankard
committed ULP when it conducted CBA negotiations in bad faith with the
Union.
Ruling of the Court of Appeals
The CA dismissed the petition, finding that the NLRC ruling was supported
by substantial evidence.
The CA agreed with Bankard that job contracting, outsourcing and/or
contracting out of jobs did not per se constitute ULP, especially when
made in good faith and for valid purposes. Despite Bankard's claim of
good faith in resorting to job contractualization for purposes of cost-
efficient operations and its non-interference with the employees' right to
self-organization, the CA agreed with the NLRC that Bankard's acts
impaired the employees right to self-organization and should be struck
down as illegal and invalid pursuant to Article 248(c)
21
of the Labor Code.
The CA thus, ruled in this wise:
We cannot agree more with public respondent. Incontrovertible is the fact
that petitioner's acts, particularly its promotion of the program enticing
employees to tender their voluntary resignation in exchange for financial
packages, resulted to a union dramatically reduced in numbers. Coupled
with the management's policy of "freeze-hiring" of regular employees and
contracting out jobs to contractual workers, petitioner was able to limit and
prevent the growth of the Union, an act that clearly constituted unfair labor
practice.
22

In its assailed decision, the CA affirmed the May 31, 2001 Resolution and
the September 24, 2001 Order of the NLRC.
Aggrieved, Bankard filed a motion for reconsideration. The CA
subsequently denied it for being a mere repetition of the grounds
previously raised. Hence, the present petition bringing up this lone issue:
THE COURT OF APPEALS ERRED IN FINDING THAT PETITIONER
BANKARD, INC. COMMITTED ACTS OF UNFAIR LABOR PRACTICE
WHEN IT DISMISSED THE PETITION FOR CERTIORARI AND DENIED
THE MOTION FOR RECONSIDERATION FILED BY PETITIONER.
23

Ruling of the Court
The Court finds merit in the petition.
Well-settled is the rule that "factual findings of labor officials, who are
deemed to have acquired expertise in matters within their jurisdiction, are
generally accorded not only respect but even finality by the courts when
supported by substantial evidence."
24
Furthermore, the factual findings of
the NLRC, when affirmed by the CA, are generally conclusive on this
Court.
25
When the petitioner, however, persuasively alleges that there is
insufficient or insubstantial evidence on record to support the factual
findings of the tribunal or court a quo, then the Court, exceptionally, may
review factual issues raised in a petition under Rule 45 in the exercise of
its discretionary appellate jurisdiction.
26

This case involves determination of whether or not Bankard committed
acts considered as ULP. The underlying concept of ULP is found in Article
247 of the Labor Code, to wit:
Article 247. Concept of unfair labor practice and procedure for prosecution
thereof. -- Unfair labor practices violate the constitutional right of workers
and employees to self-organization, are inimical to the legitimate interests
of both labor and management, including their right to bargain collectively
and otherwise deal with each other in an atmosphere of freedom and
mutual respect, disrupt industrial peace and hinder the promotion of
healthy and stable labor-management relations. x x x
The Court has ruled that the prohibited acts considered as ULP relate to
the workers right to self-organization and to the observance of a CBA. It
refers to "acts that violate the workers right to organize."
27
Without that
element, the acts, even if unfair, are not ULP.
28
Thus, an employer may
only be held liable for unfair labor practice if it can be shown that his acts
affect in whatever manner the right of his employees to self-organize.
29

In this case, the Union claims that Bankard, in implementing its MRP
which eventually reduced the number of employees, clearly violated
Article 248(c) of the Labor Code which states that:
Art. 248. Unfair labor practices of employers. It shall be unlawful for an
employer to commit any of the following unfair labor practice:
x x x x
(c) To contract out services or functions being performed by union
members when such will interfere with, restrain or coerce employees in
the exercise of their rights to self-organization;
x x x x
Because of said reduction, Bankard subsequently contracted out the jobs
held by former employees to other contractual employees. The Union
specifically alleges that there were other departments in Bankard, Inc.
which utilized messengers to perform work load considered for regular
employees like the Marketing Department, Voice Authorizational
Department, Computer Services Department, and Records Retention
Department.
30
As a result, the number of union members was reduced,
and the number of contractual employees, who were never eligible for
union membership for lack of qualification, increased.
The general principle is that the one who makes an allegation has the
burden of proving it.1avvphi1 While there are exceptions to this general
rule, in ULP cases, the alleging party has the burden of proving the
ULP;
31
and in order to show that the employer committed ULP under the
Labor Code, substantial evidence is required to support the claim.
32
Such
principle finds justification in the fact that ULP is punishable with both civil
and/or criminal sanctions.
33

Aside from the bare allegations of the Union, nothing in the records
strongly proves that Bankard intended its program, the MRP, as a tool to
drastically and deliberately reduce union membership. Contrary to the
findings and conclusions of both the NLRC and the CA, there was no
proof that the program was meant to encourage the employees to
disassociate themselves from the Union or to restrain them from joining
any union or organization. There was no showing that it was intentionally
implemented to stunt the growth of the Union or that Bankard
discriminated, or in any way singled out the union members who had
availed of the retirement package under the MRP. True, the program
might have affected the number of union membership because of the
employees voluntary resignation and availment of the package, but it
does not necessarily follow that Bankard indeed purposely sought such
result. It must be recalled that the MRP was implemented as a valid cost-
cutting measure, well within the ambit of the so-called management
prerogatives. Bankard contracted an independent agency to meet
business exigencies. In the absence of any showing that Bankard was
motivated by ill will, bad faith or malice, or that it was aimed at interfering
with its employees right to self-organize, it cannot be said to have
committed an act of unfair labor practice.
34

"Substantial evidence is more than a mere scintilla of evidence. It means
such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion, even if other minds equally reasonable might
conceivably opine otherwise."
35
Unfortunately, the Union, which had the
burden of adducing substantial evidence to support its allegations of ULP,
failed to discharge such burden.
36

The employers right to conduct the affairs of its business, according to its
own discretion and judgment, is well-recognized.
37
Management has a
wide latitude to conduct its own affairs in accordance with the necessities
of its business.
38
As the Court once said:
The Court has always respected a company's exercise of its prerogative
to devise means to improve its operations. Thus, we have held that
management is free to regulate, according to its own discretion and
judgment, all aspects of employment, including hiring, work assignments,
supervision and transfer of employees, working methods, time, place and
manner of work.
This is so because the law on unfair labor practices is not intended to
deprive employers of their fundamental right to prescribe and enforce
such rules as they honestly believe to be necessary to the proper,
productive and profitable operation of their business.
39

Contracting out of services is an exercise of business judgment or
management prerogative. Absent any proof that management acted in a
malicious or arbitrary manner, the Court will not interfere with the exercise
of judgment by an employer.
40
Furthermore, bear in mind that ULP is
punishable with both civil and/or criminal sanctions.
41
As such, the party
so alleging must necessarily prove it by substantial evidence. The Union,
as earlier noted, failed to do this. Bankard merely validly exercised its
management prerogative. Not shown to have acted maliciously or
arbitrarily, no act of ULP can be imputed against it.
WHEREFORE, the petition is GRANTED. The Decision of the Court of
Appeals in CA-G.R. SP No. 68303, dated October 20, 2005, and its
Resolution, dated February 21, 2006, are REVERSED and SET ASIDE.
Petitioner Bankard, Inc. is hereby declared as not having committed any
act constituting Unfair Labor Practice under Article 248 of the Labor Code.
VICTORINO OPINALDO, Petitioner, v. NARCISA
RAVINA, Respondent.
D E C I S I O N
VILLARAMA, JR., J.:
On appeal under Rule 45 is the Decision
1
dated October 19,
2010 and Resolution
2
dated March 17, 2011 of the Court of
Appeals (CA), Cebu City, in CA-G.R. SP No. 04479 which
reversed and set aside the Decision
3
and Resolution
4
of the
National Labor Relations Commission (NLRC), Cebu City, and
dismissed petitioner's complaint for illegal dismissal against
respondent.

The facts follow.

Respondent Narcisa Ravina (Ravina) is the general manager and
sole proprietor of St. Louisse Security Agency (the Agency).
Petitioner Victorino Opinaldo (Opinaldo) is a security guard who
had worked for the Agency until his alleged illegal dismissal by
respondent on December 22, 2006. The Agency hired the
services of petitioner on October 5, 2005, with a daily salary of
P176.66 and detailed him to PAIJR Furniture Accessories (PAIJR)
in Mandaue City.
5
cralawlibrary

In a letter dated August 15, 2006, however, the owner of PAIJR
submitted a written complaint to respondent stating as
follows:chanroblesvirtualawlibrary
I have two guard[s] assigned here in my company[,] namely[,]
SG. Opinaldo and SGT. Sosmenia. Hence, ... I hereby formalize
our request to relieve one of our company guard[s] and I
[choose] SG. VICTORINO B. OPINALDO[,] detailed/assigned at
PAIJR FURNITURE ACCESSORIES located at TAWASON,
MANDAUE CITY. For the reason: He is no longer physically fit to
perform his duties and responsibilities as a company guard
because of his health condition.

Looking forward to your immediate action. Thank [y]ou.
6


Acceding to PAIJRs request, respondent relieved petitioner from
his work. Respondent also required petitioner to submit a
medical certificate to prove that he is physically and mentally fit
for work as security guard.

On September 6, 2006, respondent reassigned petitioner to
Gomez Construction at Mandaue City. After working for a period
of two weeks for Gomez Construction and upon receipt of his
salary for services rendered within the said two-week period,
petitioner ceased to report for work.
7
The records show that
petitioners post at Gomez Construction was the last assignment
given to him by respondent.

On November 7, 2006, petitioner filed a complaint
8
against
respondent with the Department of Labor and Employment
(DOLE) Regional Office in Cebu City for underpayment of salary
and nonpayment of other labor standard benefits. The parties
agreed to settle and reached a compromise agreement. On
November 27, 2006, petitioner signed a Quitclaim and
Release
9
before the DOLE Regional Office in Cebu City for the
amount of P5,000.
10
cralawlibrary

After almost four weeks from the settlement of the case,
petitioner returned to respondents office on December 22,
2006. Petitioner claims that when he asked respondent to sign
an SSS
11
Sickness Notification which he was going to use in
order to avail of the discounted fees for a medical check- up,
respondent allegedly refused and informed him that he was no
longer an employee of the Agency. Respondent allegedly told
him that when he signed the quitclaim and release form at the
DOLE Regional Office, she already considered him to have quit
his employment.
12
Respondent, on the other hand,
counterclaims that she did not illegally dismiss petitioner and
that it was a valid exercise of management prerogative that he
was not given any assignment pending the submission of the
required medical certificate of his fitness to work.
13
cralawlibrary

On January 26, 2007, petitioner filed a Complaint
14
for Illegal
Dismissal with a prayer for the payment of separation pay in lieu
of reinstatement against respondent and the Agency before the
NLRC Regional Arbitration Branch No. VII, Cebu City. After trial
and hearing, Labor Arbiter Maria Christina S. Sagmit rendered a
Decision
15
on June 18, 2008 holding respondent and the Agency
liable for illegal dismissal and ordering them to pay petitioner
separation pay and back wages. The Labor Arbiter ruled,
In the instant case, respondents failed to establish that
complainant was dismissed for valid causes. For one, there is no
evidence that complainant was suffering from physical illness
which will explain his lack of assignment. Further, there is no
admissible proof that Ravina even required complainant to
submit a medical certificate. Thus, complainant could not be
deemed to have refused or neglected to comply with this order.

x x x x

Considering that there is no evidence that complainant was
physically unfit to perform his duties, respondents must be held
liable for illegal dismissal. Ordinarily, complainant will be entitled
to reinstatement and full backwages. However, complainant has
expressed his preference not to be reinstated. Hence,
respondents must be ordered to give complainant separation
pay in lieu of reinstatement equivalent to one months salary for
every year of service. Complainant is also entitled to full
backwages from the time he was terminated until the date of
this Decision.

WHEREFORE, respondents Narcisa Ravina and/or St. Louis[s]e
Security Agency are ordered to pay complainant the total
amount EIGHTY[-]TWO THOUSAND THREE HUNDRED FORTY
PESOS (P82,340.00), consisting of P22,500.00 in separation pay
and P59,840.00 in full backwages.

SO ORDERED.
16


Respondent appealed to the NLRC which, however, affirmed the
decision of the Labor Arbiter and dismissed the appeal for lack of
merit.
17
cralawlibrary

The NLRC ruled that there was no just and authorized cause for
dismissal and held that [w]ithout a certification from a
competent public authority that [petitioner] suffers from a
disease of such nature or stage that cannot be cured within a
period of six (6) months even with proper medical attendance,
respondents are not justified in refusing [petitioners] presence
in [the] workplace.
18
The NLRC also ruled that neither did
petitioner abandon his job as his failure to work was due to
respondents turn[ing] him down.
19
cralawlibrary

Respondent moved for reconsideration but the motion was
denied in a Resolution
20
dated June 30, 2009 where the NLRC
reiterated its finding of illegal dismissal given the absence of any
just or authorized cause for the termination of petitioner and the
failure to prove abandonment on his part.

Respondent elevated the case to the CA on a Petition for
Certiorari.
21
On October 19, 2010, the appellate court ruled for
respondent and reversed and set aside the decision and
resolution of the NLRC. Ruling on the issue raised by petitioner
that respondents petition should have been dismissed outright
as her motion for reconsideration before the NLRC was filed out
of time, the appellate court held that the issue was rendered
moot and academic when the NLRC gave due course to the
motion and decided the case on the merits. The appellate court
further held that petitioner should have filed his comment or
opposition upon the filing of the subject motion for
reconsideration and not after the termination of the proceedings
before the NLRC. As to the issue of illegal dismissal, the
appellate court ruled that it was petitioner himself who failed to
report for work and therefore severed his employment with the
Agency. The CA further held that petitioners claims relative to
his alleged illegal dismissal were not substantiated. The
pertinent portions of the assailed Decision reads,
Based from the evidence on record, the chain of events started
when PAIJR sent to Ravina its 15 August 2006 letter-complaint
to relieve Opinaldo. This led to Opinaldos reassignment to work
for Engr. Gomez on 06 September 2006. Upon his failure to
continue working for Engr. Gomez due to his refusal to obtain a
medical certificate, Opinaldo filed the complaint for money
claims on 07 November 2006. This was however settled when
Opinaldo and Ravina signed a quitclaim on 27 November 2006.
Still, Opinaldo did not obtain the medical certificate required by
Ravina. Then, Opinaldos hasty filing of a complaint for illegal
dismissal against Ravina on 26 January 2007.

x x x x

The requirement to undergo a medical examination is a lawful
exercise of management prerogative on Ravinas part
considering the charges that Opinaldo was not only suffering
from hypertension but was also sleeping while on duty. The
management is free to regulate, according to its own discretion
and judgment, all aspects of employment, including hiring, work
assignments, working methods, time, place and manner of work,
processes to be followed, supervision of workers, working
regulations, transfer of employees, work supervision, lay off of
workers and discipline, dismissal and recall of workers.

Besides, as a security guard, the need to be physically fit cannot
be downplayed. If at all, Opinaldos obstinate refusal to submit
his medical certificate is equivalent to willful disobedience to a
lawful order. x x x.

x x x x

Verily, the totality of Opinaldos acts justifies the dismissal of his
complaint for illegal dismissal against Ravina. While it is true
that the state affirms labor as a primary social economic force,
we are also mindful that the management has rights which must
also be respected and enforced.
22


Petitioner moved for reconsideration of the Decision but his
motion was denied in the questioned Resolution of March 17,
2011 on the ground that there are neither cogent reasons nor
new and substantial grounds which would warrant a reversal of
the appellate courts findings. Hence, petitioner filed this petition
alleging that:chanroblesvirtualawlibrary
[I]

THE HONORABLE COURT OF APPEALS ERRED AND DECIDED THE
CASE NOT IN ACCORDANCE WITH LAW AND ESTABLISHED
JURISPRUDENCE WHEN IT GAVE DUE COURSE TO THE
RESPONDENTS PETITION FOR CERTIORARI UNDER RULE 65

DESPITE BEING FILED OUT OF TIME AND NOT PROPERLY
VERIFIED
[II]

THE HONORABLE COURT OF APPEALS ERRED AND DECIDED THE
CASE NOT IN ACCORDANCE WITH LAW AND ESTABLISHED
JURISPRUDENCE WHEN IT REVERSED AND SET ASIDE THE
DECISION AND RESOLUTION OF THE HONORABLE NATIONAL
LABOR RELATIONS COMMISSION, FOURTH DIVISION, BY
DECLARING THAT THE DISMISSAL OF PETITIONER WAS LEGAL
AND PROPER
23


We first rule on the procedural issue.

Petitioner questions the appellate court for ruling that the issue
of the timeliness of the filing of respondents motion for
reconsideration of the NLRC decision has become moot and
academic when the NLRC dismissed the said motion based on
the merits and affirmed its decision. It is the opinion of
petitioner that [this] should not and cannot be understood to
mean that the motion for reconsideration was filed within the
period allowed, and that [t]he Commission may have
accommodated the motion for reconsideration although
belatedly filed and had chosen to decide it based on its merits x
x x but it does not change the fact that the motion for
reconsideration before the Commission was filed beyond the
reglementary period.
24
Petitioner believes that respondents
filing of the motion for reconsideration on time is a precondition
to the application of the rule that a petition for certiorari must be
filed within 60 days from the notice of the denial of the motion
for reconsideration. As petitioner puts it, the counting of the
sixty (60)[-]day period from the notice of the denial of the
motion for reconsideration is proper only when the motion was
filed on time.
25
cralawlibrary

The CA, ruling that the procedural issue is already moot and
academic, ratiocinated as follows:chanroblesvirtualawlibrary
Anent the first issue, Ravina argues that the issue of timeliness
of filing a Motion for Reconsideration with the NLRC has been
dispensed with when it resolved to dismiss said Motion based on
the merits and not on the mere technical issue of timeliness.
Ravina further insists that had the NLRC denied said Motion
based on the issue of timeliness, it would have just outrightly
dismissed it based on said ground and not on the merits she
raised in her Motion for Reconsideration.

The period within which to file a certiorari petition is 60 days as
provided under Section 4, Rule 65 of the 1997 Rules of Civil
Procedure as amended by Circular No. 39-98 and further
amended by A.M. No. 00-2-03-SC,
thusly:chanroblesvirtualawlibrary
SECTION 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.

x x x x

x x x x
To reiterate, the NLRC promulgated its challenged Decision on
24 April 2009. Ravina alleged that her former counsel received a
copy of said decision on 08 June 2009. However, she changed
her counsel who, in turn, obtained a copy of the decision on 17
June 2009. The NLRC then promulgated its assailed Resolution
on 30 June 2009 which Ravina received on 29 July 2009.
Ravinas Petition for Certiorari, dated 28 August 2009, was filed
on 09 September 2009.

The reckoning period for the filing of a certiorari petition is sixty
(60) days counted from notice of the denial of said
motion. Prescinding from the foregoing, the Petition for
Certiorari was filed within the 60- day period.

At this stage of the proceeding, it is futile to belabor on the
timeliness of the Motion for Reconsideration. This is due to the
fact that the issue of timeliness has become moot and academic
considering that Ravinas Motion for Reconsideration was given
due course by the NLRC. In fact, the NLRC even decided the
motion on the merits and not merely on technicality.

Moreover, Opinaldo should have filed a Comment or Opposition
as soon as the Motion for Reconsideration was filed. Opinaldo
should not have waited for the termination of the proceedings
before the NLRC. In point of fact, the belated questioning of the
issue of timeliness even operated to estop Opinaldo.
26
(Emphasis
ours.)

Time and again, we have ruled and it has become doctrine that
the perfection of an appeal within the statutory or reglementary
period and in the manner prescribed by law is mandatory and
jurisdictional. Failure to do so renders the questioned decision
final and executory and deprives the appellate court of
jurisdiction to alter the final judgment, much less to entertain
the appeal.
27
In labor cases, the underlying purpose of this
principle is to prevent needless delay, a circumstance which
would allow the employer to wear out the efforts and meager
resources of the worker to the point that the latter is constrained
to settle for less than what is due him.
28
cralawlibrary

In the case at bar, the applicable rule on the perfection of an
appeal from the decision of the NLRC is Section 15, Rule VII of
the 2005 Revised Rules of Procedure of the National Labor
Relations Commission:chanroblesvirtualawlibrary
Section 15. Motions for Reconsideration. Motion for
reconsideration of any decision, resolution or order of the
Commission shall not be entertained except when based on
palpable or patent errors; provided that the motion is under oath
and filed within ten (10) calendar days from receipt of decision,
resolution or order, with proof of service that a copy of the same
has been furnished, within the reglementary period, the adverse
party; and provided further, that only one such motion from the
same party shall be entertained.

Should a motion for reconsideration be entertained pursuant to
this SECTION, the resolution shall be executory after ten (10)
calendar days from receipt thereof.

We are not, however, unmindful that the NLRC is not bound by
the technical rules of procedure and is allowed to be liberal in
the application of its rules in deciding labor cases. Thus, under
Section 2, Rule I of the 2005 Revised Rules of Procedure of the
National Labor Relations Commission it is
stated:chanroblesvirtualawlibrary
Section 2. Construction. These Rules shall be liberally
construed to carry out the objectives of the Constitution, the
Labor Code of the Philippines and other relevant legislations, and
to assist the parties in obtaining just, expeditious and
inexpensive resolution and settlement of labor disputes.

It is significant that the 2011 NLRC Rules of Procedure, under
Section 2, Rule I thereof, also carries exactly the same
provision. Further, the 2005 Revised Rules and the 2011 Rules
carry identical provisions appearing under Section 10, Rule VII
of both laws:chanroblesvirtualawlibrary
Section 10. Technical rules not binding. The rules of
procedure and evidence prevailing in courts of law and equity
shall not be controlling and the Commission shall use every and
all reasonable means to ascertain the facts in each case speedily
and objectively, without regard to technicalities of law or
procedure, all in the interest of due process.

In any proceeding before the Commission, the parties may be
represented by legal counsel but it shall be the duty of the
Chairman, any Presiding Commissioner or Commissioner to
exercise complete control of the proceedings at all stages.

All said, despite this jurisdictions stance towards the exercise of
liberality, the rules should not be relaxed when it would render
futile the very purpose for which the principle of liberality is
adopted.29 The liberal interpretation stems from the mandate
that the workingmans welfare should be the primordial and
paramount consideration.30 We are convinced that the
circumstances in the case at bar warranted the NLRCs exercise
of liberality when it decided respondents motion for
reconsideration on the merits.

The subject motion for reconsideration of the NLRC decision was
filed on June 25, 2009. The evidence on record shows that the
decision of the NLRC dated April 24, 2009 was received by
respondent herself on June 17, 2009. The same decision was,
however, earlier received on June 8, 2009 by respondents
former counsel who allegedly did not inform respondent of the
receipt of such decision until respondent went to his office on
June 23, 2009 to get the files of the case. If we follow a strict
construction of the ten- day rule under the 2005 Revised Rules
of Procedure of the National Labor Relations Commission and
consider notice to respondents former counsel as notice to
respondent herself, the expiration of the period to file a motion
for reconsideration should have been on June 18, 2009. The
NLRC, however, chose a liberal application of its rules: it decided
the motion on the merits. Nevertheless, it denied
reconsideration.

We defer to the exercise of discretion by the NLRC and uphold
its judgment in applying a liberal construction of its procedural
and technical rules to this case in order to ventilate and resolve
the issues raised by respondent in the motion for reconsideration
and fully resolve the case on the merits. It would be purely
conjectural to challenge the NLRCs exercise of such liberality for
being tainted with grave abuse of discretion especially that it did
not reverse, but even affirmed, its questioned decision which
sustained the ruling of the Labor Arbiter that respondent
illegally dismissed petitioner. In view of such disposition, that
the NLRC gave due course to the motion in the interest of due
process and to render a full resolution of the case on the merits
is the more palpable explanation for the liberal application of its
rules. It is significant to note that neither did petitioner ever
raise the issue of the NLRCs ruling on the merits of the subject
motion for reconsideration. And the reason is clear: the motion
for reconsideration was resolved in favor of petitioner.
Furthermore, if the NLRC accorded credibility to the explanation
proffered by respondent for its belated filing of the motion, we
cannot now second-guess the NLRCs judgment in view of the
circumstances of the case and in the absence of any showing
that it gravely abused its discretion.

In light of the foregoing, we cannot uphold the stand of
petitioner that the petition for certiorari before the CA was filed
out of time, and at the same time rule that the NLRC acted in
the proper exercise of its jurisdiction when it liberally applied its
rules and resolved the motion for reconsideration on the merits.
To so hold would nullify the latitude of discretion towards liberal
construction granted to the NLRC under the 2005 Revised Rules
of Procedure of the National Labor Relations Commission
including the decisions and resolutions rendered in the exercise
of such discretion.

Petitioner also claims that the verification in respondents
petition for certiorari before the CA suffers from infirmity
because it was based only on personal belief and information.
As it is, petitioner argues that it does not comply with Section
4,
31
Rule 7 of the 1997 Rules on Civil Procedure, as amended,
which requires a pleading to be verified by an affidavit that the
affiant has read the pleading and that the allegations therein are
true and correct of his personal knowledge or based on
authentic records.
32
The petition must therefore be considered
as an unsigned pleading producing no legal effect under Section
3,
33
Rule 7 of the Rules and should have resulted in the outright
dismissal of the petition.

It is a matter of procedural consequence in the case at bar that
whether we strictly or liberally apply the technical rules on the
requirement of verification in pleadings, the disposition of the
case will be the same. If we sustain petitioners stance that the
petition before the CA should have been outrightly dismissed,
the NLRC decision finding the dismissal of petitioner as illegal
would have reached finality. On the other hand, if we adopt
respondents view that the defect in the verification of the
petition is merely a formal defect and is neither jurisdictional nor
fatal, we will be sustaining the appellate courts giving due
course to the petition. However, on substantive grounds, we
reverse the appellate courts decision and reinstate the finding of
illegal dismissal by the NLRC and the Labor Arbiter.

The appellate court reversed both the NLRC and the Labor
Arbiter in consideration of the following factors: that petitioner
did not counter respondents receipt of the letter-complaint of
PAIJR relative to his work performance; that petitioner did not
refute the fact that respondent required him to submit a medical
certificate; and, that petitioner failed to comply with the
requirement to submit the medical certificate. Hence, when
petitioner failed to submit the required medical certificate, the
appellate court found it to be a valid exercise of management
prerogative on the part of respondent not to give petitioner any
work assignment pending its submission.

We do not agree.

Jurisprudence is replete with cases recognizing the right of the
employer to have free reign and enjoy sufficient discretion to
regulate all aspects of employment, including the prerogative to
instill discipline in its employees and to impose penalties,
including dismissal, upon erring employees. This is a
management prerogative where the free will of management to
conduct its own affairs to achieve its purpose takes
form.
34
cralawlibrary

Even labor laws discourage interference with the exercise of
such prerogative and the Court often declines to interfere in
legitimate business decisions of employers.
35
However, the
exercise of management prerogative is not unlimited. Managerial
prerogatives are subject to limitations provided by law, collective
bargaining agreements, and general principles of fair play and
justice.
36
Hence, in the exercise of its management prerogative,
an employer must ensure that the policies, rules and regulations
on work-related activities of the employees must always be fair
and reasonable and the corresponding penalties, when
prescribed, commensurate to the offense involved and to the
degree of the infraction.
37
cralawlibrary

In the case at bar, we recognize, as did the appellate court, that
respondents act of requiring petitioner to undergo a medical
examination and submit a medical certificate is a valid exercise
of management prerogative. This is further justified in view of
the letter-complaint from one of respondents clients, PAIJR,
opining that petitioner was no longer physically fit to perform
his duties and responsibilities as a company guard because of
his health condition.
38
To be sure, petitioners job as security
guard naturally requires physical and mental fitness under
Section 5 of Republic Act No. 5487,
39
as amended by Presidential
Decree No. 100.
40
cralawlibrary

While the necessity to prove ones physical and mental fitness to
be a security guard could not be more emphasized, the question
to be settled is whether it is a valid exercise of respondents
management prerogative to prevent petitioners continued
employment with the Agency unless he presents the required
medical certificate. Respondent
argues, viz.:chanroblesvirtualawlibrary
Thus, respondents in the exercise of their MANAGEMENT
PREROGATIVE required Complainant to submit a Medical
Certificate to prove that he is PHYSICALLY AND MENTALLY FIT
for work as Security Guard. Unfortunately, however, up to the
present time, complainant failed to submit said Medical
Examination and Findings giving him clean bill of health, to
respondents. Herein respondents are ready and willing to accept
him as such Security Guard once he could submit said Medical
Examination and Findings.

The requirement anent the presentation of such MEDICAL
CERTIFICATE by Complainant to Respondents is but a
Management Measure of ensuring Respondents including
Complainant that Complainant is physically and mentally fit for
continued Employment and will not in any manner pose a danger
or, threat to the respondents properties and lives of their
customers and other employees as well as to the person and life
of Complainant himself.
41


It is utterly significant in the case at bar that a considerably long
period has lapsed from petitioners last day of recorded work on
September 21, 2006 until he was informed by respondent on
December 22, 2006 that he was no longer an employee of the
Agency. In the words of petitioner, he had been on a floating
status
42
for three months. Within this period, petitioner did not
have any work assignment from respondent who proffers the
excuse that he has not submitted the required medical
certificate. While it is a management prerogative to require
petitioner to submit a medical certificate, we hold that
respondent cannot withhold petitioners employment without
observing the principles of due process and fair play.

The Labor Arbiter and the CA have conflicting findings with
respect to the submission of the medical certificate. The Labor
Arbiter observed that there is no admissible proof that
[respondent] even required [petitioner] to submit a medical
certificate. Thus, [petitioner] could not be deemed to have
refused or neglected to comply with this order.
43
The CA
countered that while there is no documentary evidence to prove
it, the admission of both parties establishes that there is a
pending requirement for a medical certificate and it was not
complied with by petitioner. We agree with the appellate court
that despite the lack of documentary evidence, both parties have
admitted to respondents medical certificate requirement. We so
hold despite petitioners protestations that what respondent
required of him was to submit himself to a medical check-up,
and not to submit a medical certificate. Even if petitioners
allegation is to be believed, the fact remains that he did not
undergo the medical check-up which he himself claims to have
been required by respondent.

All said, what behooves the Court is the lack of evidence on
record which establishes that respondent informed petitioner
that his failure to submit the required medical certificate will
result in his lack of work assignment. It is a basic principle of
labor protection in this jurisdiction that a worker cannot be
deprived of his job without satisfying the requirements of due
process.
44
Labor is property and the right to make it available is
next in importance to the rights of life and liberty.
45
As
enshrined under the Bill of Rights, no person shall be deprived of
life, liberty or property without due process of law.
46
The due
process requirement in the deprivation of ones employment is
transcendental that it limits the exercise of the management
prerogative of the employer to control and regulate the affairs of
the business. In the case at bar, all that respondent employer
needed to prove was that petitioner employee was notified that
his failure to submit the required medical certificate will result in
his lack of work assignment and eventually the termination of
his employment as a security guard. There is no iota of
evidence in the records, save for the bare allegations of
respondent, that petitioner was notified of such consequence for
non- submission. In truth, the facts of the case clearly show that
respondent even reassigned petitioner to Gomez Construction
from his PAIJR post despite the non-submission of a medical
certificate. If it was indeed the policy of respondent not to give
petitioner any work assignment without the medical certificate,
why was petitioner reassigned despite his noncompliance?

That is not all. In addition to invoking management prerogative
as a defense, respondent also alleges abandonment. Respondent
claims that after petitioner received his last salary from his
assignment with Gomez Construction, he no longer reported for
work. The assailed Decision found that petitioner indeed
abandoned his work, viz.:chanroblesvirtualawlibrary
It was only when Opinaldo refused to report for work on his
assignment for Engr. Gomez after having received his salary for
work rendered starting on 06 September 2006 that Ravina
became firm that the medical certificate should be submitted.
But, Opinaldo did not heed Ravinas order. It was Opinaldo who
altogether failed to report for work.
47


We disagree.

Abandonment is the deliberate and unjustified refusal of an
employee to resume his employment.
48
To constitute
abandonment of work, two elements must concur: (1) the
employee must have failed to report for work or must have been
absent without valid or justifiable reason; and, (2) there must
have been a clear intention on the part of the employee to sever
the employer-employee relationship manifested by some overt
act.
49
None of these elements is present in the case at bar. As
succinctly stated by the NLRC:chanroblesvirtualawlibrary
From respondents own admission in their position paper, it is
clear that they prevented [petitioners] continued employment
with them unless the latter presents a medical certificate that he
is physically and mentally fit for work x x x.

x x x x

Moreover, if it was really true that complainant abandoned his
work, then why have not respondents sent him a notice to
report back for work? It is evident then that respondents found
an excuse to decline complainants continued stay with them on
the pretext that he has to submit first a medical certificate
before he could be allowed to resume employment.
50


Finally, respondent harps that she could not be held liable for
illegal dismissal because, in the first place, she did not dismiss
petitioner. Respondent maintains that she merely refused to give
petitioner any work assignment until the submission of a medical
certificate. On this issue, the CA concurred with respondent and
ruled that petitioner failed to establish the facts which would
paint the picture that [respondent] terminated
him.
51
cralawlibrary

We need not reiterate that respondent did not properly exercise
her management prerogative when she withheld petitioners
employment without due process. Respondent failed to prove
that she has notified petitioner that her continuous refusal to
provide him any work assignment was due to his non-
submission of the medical certificate. Had respondent exercised
the rules of fair play, petitioner would have had the option of
complying or not complying with the medical certificate
requirement having full knowledge of the consequences of his
actions. Respondent failed to do so and she cannot now hide
behind the defense that there was no illegal termination because
petitioner cannot show proof that he had been illegally
dismissed. It is a time- honored legal principle that the employer
has the onus probandi to show that the dismissal or termination
was for a just and authorized cause under the Labor Code.
Respondent failed to show that the termination was justified and
authorized, nor was it done as a valid exercise of management
prerogative. Given the circumstances in the case at bar, it is not
fair to shift the burden to petitioner, and rule that he failed to
prove his claim, when respondent had successfully tenninated
the employer-employee relationship without leaving a paper trail
in a clear case of illegal dismissal.

WHEREFORE, the petition for review on certiorari is GRANTED.
The assailed Decision dated October 19, 2010 and Resolution
dated March 17, 2011 of the Court of Appeals in CA-G.R. SP No.
04479 dismissing petitioner's Complaint for Illegal Dismissal are
hereby REVERSED and SET ASIDE. The Decision and
Resolution dated April24, 2009 and June 30, 2009, respectively,
of the NLRC in NLRC Case No. VAC 01-000081-2009 (RAB Case
No. Vll-01-0208-2007) requiring respondent Narcisa Ravina
and/or St. Louisse Security Agency to pay petitioner Victorino
Opinaldo the total amount of 82,340 consisting of 22,500 in
separation pay and 59,840 in full back wages, are
herebyREINSTATED and UPHELD.















RADIO PHILIPPINES NETWORK, INC., and/or MIA CONCIO,
President, LEONOR LINAO, General Manager, LOURDES ANGELES,
HRD Manager, and IDA BARRAMEDA, AGM-Finance, Petitioners,
vs.
RUTH F. YAP, MA. FE DAYON, MINETTE BAPTISTA, BANNIE EDSEL
SN MIGUEL, and MARISA LEMINA,Respondents.

REYES, J :
Before us is a petition for review of the Resolutions of the Court of
Appeals (CA) dated November 14, 2008
1
and March 9,
2009,
2
respectively, dismissing the petition for certiorari and denying the
motion for reconsideration thereof for petitioners' failure to attach certain
pleadings in CA-G.R. SP No. 105945.
The Antecedent Facts
Petitioner Radio Philippines Network, Inc. (RPN), represented by the
Office of the Government Corporate Counsel (OGCC), is a government
sequestered corporation with address at Broadcast City, Capitol Hills
Drive, Quezon City, while petitioners Mia Concio (Concio), Leonor Linao
(Linao), Ida Barrameda (Barrameda) and Lourdes Angeles (Angeles) were
the President, General Manager, Assistant General Manager (AGM) for
Finance, and Human Resources Manager, respectively, of RPN who were
impleaded and charged with indirect contempt, the subject matter of the
present petition. Respondents Ruth F. Yap (Yap), Bannie Edsel B. San
Miguel (San Miguel), Ma. Fe G. Dayon (Dayon), Marisa Lemina (Lemina)
and Minette Baptista (Baptista) were employees of RPN and former
members of the Radio Philippines Network Employees Union (RPNEU),
the bargaining agent of the rank-and-file employees of the said company.
On November 26, 2004, RPN and RPNEU entered into a Collective
Bargaining Agreement (CBA) with a union security clause providing that a
member who has been expelled from the union shall also be terminated
from the company. The CBA had a term of five (5) years, commencing on
July 1, 2004 and expiring on June 30, 2009.
A conflict arose between the respondents and other members of RPNEU.
On November 9, 2005, the RPNEUs Grievance and Investigation
Committee recommended to the unions board of directors the expulsion
of the respondents from the union. On January 24, 2006, the union wrote
to RPN President Concio demanding the termination of the respondents
employment from the company.
On February 17, 2006, RPN notified the respondents that their
employment would be terminated effective March 20, 2006,
3
whereupon
the respondents filed with the Labor Arbiter (LA) a complaint for illegal
dismissal and non-payment of benefits.
On September 27, 2006, the LA rendered a decision
4
ordering the
reinstatement of the respondents with payment of backwages and full
benefits and without loss of seniority rights after finding that the petitioners
failed to establish the legal basis of the termination of respondents
employment. The LA also directed the company to pay the respondents
certain aggregate monetary benefits.
On October 27, 2006, the petitioner, through counsel submitted a
Manifestation and Compliance dated October 25, 2006 to the LA stating
that:
"In compliance with the decision of the Labor Arbiter dated September 27,
2006, Respondent RPN9 most respectfully manifests that it has
complied with the reinstatement of the complainants, namely: Ruth Yap,
Ma. Fe Dayon, Bannie Edsel San Miguel, Marisa Lemina and Minette
Baptista by way of payroll reinstatement."
5

A copy of the said Manifestation was sent to the respondents by
registered mail on even date.
6

Alleging that there was no compliance yet as aforestated and that no
notice was received, respondents filed with the LA a Manifestation and
Urgent Motion to Cite for Contempt
7
dated November 3, 2006.
Therein, they narrated that on October 27, 2006, they went to RPN to
present themselves to the petitioners for actual reinstatement to their
former positions. They arrived while a mass was being celebrated at the
lobby, at which they were allowed to attend while waiting for RPN General
Manager Linao to meet them. Linao informed them that they had been
reinstated, but only in the payroll, and that the company would endeavour
to pay their salaries regularly despite its precarious financial condition.
Four (4) days later, on October 31, 2006 at 11 a.m., the respondents
returned to RPN to collect their salaries, it being a payday; but they were
barred entry upon strict orders of Concio and Linao. The respondents
returned in the afternoon but were likewise stopped by eight (8) guards
now manning the gate. Respondents nonetheless tried to push their way
in, but the guards manhandled them, pulled them by the hair and arms
and pushed them back to the street. Some even endured having their
breasts mashed, their blouses pulled up and their bags grabbed away.
This incident was reported to the police for the filing of charges. Later that
afternoon, the respondents somehow managed to enter the RPN lobby. It
was AGM for Finance Barrameda who came out, but instead of meeting
them, Barrameda ordered the guards to take them back outside the gate,
where she said they would be paid their salaries. Their removal was so
forcible and violent that they sustained physical injuries and had to be
medically treated. Claiming that RPNEU President Reynato Sioson also
assisted the guards in physically evicting them, they concluded from their
violent ouster that Concio and Linao played a direct role in their expulsion
from RPNEU.
The respondents prayed that the LA issue an order finding Concio and
Linao liable for contempt after hearing; that the respondents be reinstated
with full benefits, or in case of payroll reinstatement, that they be paid
every 15th and 30th of the month as with all regular employees; that their
salaries shall be paid at the Cashiers Office, and finally, that the
respondents shall not be prevented from entering the premises of RPN.
8

On November 14, 2006, the respondents filed a Motion for the Issuance of
Writ of Execution/Garnishment,
9
alleging that in addition to the violent
events of October 31, 2006, the respondents were again forcibly denied
entry into RPN to collect their 13th month pay on November 10, 2006.
They prayed that a writ of execution/garnishment be issued in order to
implement the decision of the LA.
10

In their joint Opposition
11
to the respondents Manifestation and Urgent
Motion to Cite for Contempt, as well as the Motion for the Issuance of Writ
of Execution/Garnishment, the petitioners denied any liability for the
narrated incidents, insisting that the respondents had been duly informed
through a letter dated November 10, 2006 of their payroll reinstatement.
The petitioners explained that because of the intra-union dispute between
the respondents and the union leaders, they deemed it wise not to allow
the respondents inside the company premises to prevent any more
untoward incidents, and to release their salaries only at the gate. For this
reason, the respondents were asked to open an ATM account with the
Land Bank, Quezon City Circle Branch, where their salaries would be
deposited every 5th and 20th day of the month, rather than on the 15th
and 30th along with the other employees. "This measure was for the
protection not only of complainants [herein respondents] but also for the
other employees of RPN9 as well," according to the petitioners.
12

On January 19, 2007, the respondents moved for the issuance of an alias
writ of execution
13
covering their unpaid salaries for January 1-15, 2007,
claiming that the petitioners did not show up at the agreed place of
payment, and reiterating their demand to be paid on the 15th and 30th of
the month at RPN, along with the rest of the employees. In their
Opposition
14
dated January 30, 2007, the petitioners insisted that they
could only pay the respondents salaries on the 5th and 20th of the month,
conformably with the companys cash flows.
On February 20, 2007, the petitioners manifested to the LA that the
respondents could collect their salaries at the Bank of Commerce in
Broadcast City Branch, Quezon City.
15
On March 9, 2007, the petitioners
manifested that the respondents salaries for the second half of February
2007 were ready for pick-up since March 5, 2007.
16
On March 15, 2007,
the petitioners informed the LA that the respondents refused to collect
their salaries. To prove their good faith, they stated that the respondents
salaries shall, henceforth, be deposited at the National Labor Relations
Commission (NLRC)-Cashier on the 5th and 20th of every month.
Unswayed by these manifestations, the LA in his assailed Order
17
dated
May 3, 2007, cited the petitioners for indirect contempt for "committing
disobedience to lawful order." The fallo reads as follows:
WHEREFORE, let a writ of execution be issued. [RPN] is ordered to
reinstate the [respondents] in the payroll, pay their unpaid salaries
computed above with deductions for SSS, income tax, union dues and
other statutory deductions. [RPN] is also ordered to have the payment of
the salaries of the respondents at the companys premises. [RPN] are
(sic) also guilty of committing disobedience to the lawful order of this court
and are (sic) therefore cited for indirect contempt and hereby ordered to
pay the amount of [P]700 for committing indirect contempt in every payroll
period.
SO ORDERED.
18

On appeal, the NLRC dismissed the same in a Resolution dated May 27,
2008, and on August 15, 2008 it also denied the petitioners motion for
reconsideration.
19

Thus, on November 3, 2008, the petitioners filed with the CA a petition
for certiorari with prayer for a temporary restraining order and/or writ of
preliminary injunction, docketed as CA-G.R. SP No. 105945. In its
Resolution
20
dated November 14, 2008, the CA dismissed the petition for
failure to attach copies of pertinent pleadings mentioned in the petition,
namely: (a) respondents Motion for the Issuance of an Alias Writ of
Execution (Annex "H"); (b) petitioners Opposition to said motion (Annex
"I"); (c) petitioners Manifestation dated February 20, 2007 (Annex "J"); (d)
petitioners Manifestation dated March 9, 2007 (Annex "K"); and (e)
petitioners Manifestation dated March 15, 2007 (Annex "L").
In their motion for reconsideration,
21
the petitioners pleaded with the CA
not to "intertwine" the LAs contempt order with the main case for illegal
dismissal, now subject of a separate petition for certiorari in the said court.
They contended that the respondents Urgent Motion to Cite for
Contempt
22
and Motion for the Issuance of Writ of
Execution/Garnishment,
23
and the petitioners Opposition
24
thereto, suffice
to resolve the charge of indirect contempt against the petitioners.
On March 9, 2009,
25
the CA denied the petitioners motion for
reconsideration, citing again the failure to submit the documents it
enumerated in its Resolution dated November 14, 2008. The CA stated
that the petitioners should have attached these supporting documents to
the petition for certiorari. Without them, the allegations contained in the
petition are nothing but bare assertions.
26

Issues
Hence, this petition for review, upon the following grounds:
I
THE HONORABLE COURT OF APPEALS ACTED NOT IN ACCORD
WITH LAW AND SETTLED JURISPRUDENCE WHEN IT DISMISSED
THE PETITION A QUO ON A MERE TECHNICALITY, CONSIDERING
THAT:
A.
PETITIONER HAS SUBSTANTIALLY COMPLIED AND INTENDS TO
FULLY COMPLY WITH THE RULES CONCERNING THE
ATTACHMENT OF PERTINENT DOCUMENTS AND PLEADINGS TO A
PETITION FOR CERTIORARI.
B.
PETITIONER HAS A MERITORIOUS CASE AS PETITIONER HAS
ACTUALLY FULLY COMPLIED WITH THE DECISION OF THE LABOR
ARBITER. HENCE, THERE IS NO CAUSE OF ACTION TO HOLD
PETITIONER IN INDIRECT CONTEMPT FOR ALLEGED NON-
COMPLIANCE WITH THE AFORESAID DECISION.
27

Discussion
Section 3 of Rule 46 of the Rules of
Court authorizes the dismissal of a
petition for failure to attach
relevant, not merely incidental,
pleadings.
The requirement in Section 1 of Rule 65 of the Rules of Court to attach
relevant pleadings to the petition is read in relation to Section 3, Rule 46,
which states that failure to comply with any of the documentary
requirements, such as the attachment of relevant pleadings, "shall be
sufficient ground for the dismissal of the petition."
28
Section 3 of Rule 46
provides:
SEC. 3. Contents and filing of petition; effect of non-compliance with
requirements.
x x x x
The petition shall be filed in seven (7) clearly legible copies together with
proof of service thereof on the respondent with the original copy intended
for the court indicated as such by the petitioner, and shall be
accompanied by a clearly legible duplicate original or certified true copy of
the judgment, order, resolution, or ruling subject thereof, such material
portions of the record as are referred to therein, and other documents
relevant or pertinent thereto. The certification shall be accomplished by
the proper clerk of court or by his duly authorized representative, or by the
proper officer of the court, tribunal, agency or office involved or by his duly
authorized representative. The other requisite number of copies of the
petition shall be accompanied by clearly legible plain copies of all
documents attached to the original.
x x x x
The failure of the petitioner to comply with any of the foregoing
requirements shall be sufficient ground for the dismissal of the petition.
In relation to the above section, Section 1 of Rule 65 provides:
SECTION 1. Petition for certiorari.
The petition shall be accompanied by a certified true copy of the
judgment, order or resolution subject thereof, copies of all pleadings and
documents relevant and pertinent thereto, and a sworn certification of non
forum shopping as provided in the third paragraph of section 3, Rule 46.
The court is given discretion to dismiss the petition outright for failure of
the petitioner to comply with the requirement to attach relevant pleadings,
and generally such action cannot be assailed as constituting either grave
abuse of discretion or reversible error of law. But if the court takes
cognizance of the petition despite such lapses, the phrasing of Section 3,
Rule 46 sufficiently justifies such adjudicative recourse.
29

In their Comment
30
to the petition, the respondents harp on the
technicalities invoked by the CA. Invoking the third paragraph of Section 3
of Rule 46, they insist that the petitioners failed to comply with Section 1
of Rule 65, giving sufficient ground for the dismissal of their petition. They
cite the Resolution of the CA dated November 14, 2008 stating that "a
careful perusal of the instant petition reveals that copies of pertinent and
relevant pleadings and documents x x x were not attached therein in
violation of Section 1, Rule 65 of the Rules of Court, as amended."
31
The
court specifically enumerated the five (5) documents described below, all
mentioned in the petition forcertiorari, without which "the allegations in the
petition are nothing but bare assertions":
a. In their Motion for the Issuance of An Alias Writ of Execution
(Annex "H") filed with the Labor Arbiter, respondents alleged
that they were unpaid of their salaries for January 1-15, 2007
because the petitioners representatives failed to appear at the
place and time for the payment which the parties agreed on at
the conciliation proceedings.
b. In the petitioners Opposition (Annex "I") to the above motion,
they claimed that the respondents lied concerning the payment
of their salaries for January 1-15, 2007, since they were in fact
paid on January 19, 2007, as agreed to at the conference held
on January 5, 2007, and as attested to by the Labor Arbiter.
They also asserted that releasing respondents salaries on the
5th and 20th of the month is the most feasible for the company
in view of its "financial limitations and near distress as a
sequestered corporation."
c. In the petitioners Manifestation dated February 20, 2007
(Annex "J"), they claimed that the respondents salaries for the
first half of February 2007 were ready for pick-up at the Bank of
Commerce, Broadcast City branch.
d. In the petitioners Manifestation dated March 9, 2007 (Annex
"K"), they claimed that the respondents salaries for the second
half of February were ready for pick-up at the Bank of
Commerce, Broadcast City branch.
e. Lastly, in the petitioners Manifestation dated March 15, 2007
(Annex "L"), they informed the LA that the respondents
paychecks for March 1-15, 2007 would be deposited with the
NLRCs cashier, and that thenceforth, their fortnightly salaries
would be deposited with the NLRC on the 5th and 20th of the
month.
The motion to cite the petitioners for indirect contempt was filed on
November 3, 2006, but a cursory perusal of the above documents reveals
that they deal with events which are at best merely incidental to the
complaint, since they pertain to salaries which fell due after the alleged
contumacious acts first complained of, which the LA even said should be
the subject of separate complaints. The petitioners cannot, therefore, be
faulted for insisting that they have submitted to the appellate court in good
faith those documents which were "relevant and pertinent" to the
resolution of the issue of indirect contempt. Moreover, we agree that the
respondents Urgent Motion to Cite for Contempt
32
and Motion for the
Issuance of Writ of Execution/Garnishment,
33
and the petitioners joint
Opposition
34
thereto, suffice to resolve the issue of indirect contempt.
This Court invariably sustains the appellate courts dismissal of a petition
on technical grounds, unless considerations of equity and substantial
justice present cogent reasons to hold otherwise.
35
Leniency cannot be
accorded absent valid and compelling reasons for such procedural
lapse.
36
We are not unmindful of exceptional cases where this Court has
set aside procedural defects to correct a patent injustice, provided that
concomitant to a liberal application of the rules of procedure is an effort on
the part of the party invoking liberality to at least explain its failure to
comply with the rules.
37
We find that an adequate justification has been
proffered by the petitioners for their supposed procedural shortcoming.
The manner of reinstating a
dismissed employee in the payroll
generally involves an exercise of
management prerogative.
In the case of Pioneer Texturizing Corp. v. NLRC,
38
it was held that an
order reinstating a dismissed employee is immediately self-executory
without need of a writ of execution, in accordance with the third paragraph
of Article 223 of the Labor Code.
39
The article states that the employee
entitled to reinstatement "shall either be admitted back to work under the
same terms and conditions prevailing prior to his dismissal or separation
or, at the option of the employer, merely reinstated in the payroll." Thus,
even if the employee is able and raring to return to work, the option of
payroll reinstatement belongs to the employer.
40

The new NLRC Rules of Procedure, which took effect on January 7, 2006,
now requires the employer to submit a report of compliance within ten (10)
calendar days from receipt of the LAs decision, disobedience to which
clearly denotes a refusal to reinstate.
41
The employee need no longer file
a motion for issuance of a writ of execution, since the LA shall
thereafter motu proprio issue the writ. With the new rules, there will be no
difficulty in determining the employers intransigence in immediately
complying with the order.
42

The general policy of labor law is to discourage interference with an
employers judgment in the conduct of his business. Even as the law is
solicitous of the welfare of the employees, it must also protect the right of
an employer to exercise what are clearly management prerogatives. As
long as the companys exercise of judgment is in good faith to advance its
interest and not for the purpose of defeating or circumventing the rights of
employees under the laws or valid agreements, such exercise will be
upheld.
43
Neither does labor law authorize the substitution of judgment of
the employer in the conduct of his business, unless it is shown to be
contrary to law, morals, or public policy.
44
The only condition is that the
exercise of management prerogatives should not be done in bad faith or
with abuse of discretion.
45

It has been held that in case of strained relations or non-availability of
positions, the employer is given the option to reinstate the employee
merely in the payroll, precisely in order to avoid the intolerable presence in
the workplace of the unwanted employee.
46
The Court explained
in Maranaw Hotel Resort Corporation v. NLRC,
47
thus:
This option to reinstate a dismissed employee in the payroll is based on
practical considerations. The employer may insist that the dismissal of the
employee was for a just and valid cause and the latters presence within
its premises is intolerable by any standard; or such presence would be
inimical to its interest or would demoralize the coemployees. Thus, while
payroll reinstatement would in fact be unacceptable because it sanctions
the payment of salaries to one not rendering service, it may still be the
lesser evil compared to the intolerable presence in the workplace of an
unwanted employee.
48

The circumstances of the present case have more than amply shown that
the physical restoration of the respondents to their former positions would
be impractical and would hardly promote the best interest of both parties.
Respondents have accused the petitioners of being directly complicit in
the plot to expel them from the union and to terminate their employment,
while petitioners have charged the respondents with trying to sabotage
the peace of the workplace in "furthering their dispute with the union." The
resentment and enmity between the parties have so strained their
relationship and even provoked antipathy and antagonism, as amply
borne out by the physical clashes that had ensued every time the
respondents attempted to enter the RPN compound, that respondents
presence in the workplace will not only be distracting but even disruptive,
to say the least.
This Court has long recognized the managements right to formulate
reasonable rules to regulate the conduct of its employees for the
protection of its interests.
49
Maranaw Hotel recognizes that the
managements option to reinstate a dismissed employee in the payroll is
precisely so that the intolerable presence of an unwanted employee in the
workplace can be avoided or prevented. The records have shown how
violent incidents have attended the respondents every attempt to enter
the company compound. While security guards were posted at the gate
with strict orders to bar their entry, there is no belittling what provocation
the respondents unleashed by their militant persistence to enter, and even
willingness to engage the guards in physical tussle. It can hardly be
considered unreasonable and arbitrary, therefore, for the company to
allow respondents go nearer than at the gate.
The proposal to pay the respondents salaries through ATM cards, now a
wide practice cannot be said to be prejudicial or oppressive since it would
not entail any unusual effort by the respondents to collect their money. As
to the respondents demand to be paid their salaries on the 15
th
and 30th
of the month along with the other employees, instead of on the 5
th
and
20th days, petitioners reason that the salaries must be staggered due to
RPNs erratic cash flows. The law only requires that the fortnightly
intervals be observed.
Petitioners have substantially
complied in good faith with the terms
of payroll reinstatement.
The petitioners insist that the respondents were immediately reinstated,
albeit in the payroll, in compliance with the order of the LA, and their
salaries have since been regularly paid without fail. And granting that
there were occasional delays, the petitioners assert that the respondents
in their combative hostility toward the petitioners were partly to blame for
their recalcitrant demands as to the place and schedule of payment, and
their refusal to cooperate in the opening of their ATM accounts.
In its Consolidated Reply
50
dated September 7, 2010 to the respondents
comments, RPN noted that the LA, in its Order
51
dated January 12, 2010,
denied the respondents motion to execute the Order dated May 3, 2007,
for the reason that there was no more legal basis to execute his
order because the matter had been mooted by the petitioners compliance
therewith by paying the respondents salaries from September 2008 to
April 2009, including all benefits in arrears. The LA clarified that any
subsequent violations of RPNs obligation to pay the respondents salaries
would have to be the subject of a new complaint for indirect contempt, and
concluded that "the judgment award has been fully paid."
52

The LA mentioned another motion for execution by the respondents dated
July 23, 2009, which he also denied for lack of merit. It was also
mentioned in the subsequent Order dated January 12, 2010 that the
question of whether the respondents were still members of the RPNEU
was still pending with the Supreme Court.
On April 22, 2009, the respondents executed a quitclaim and release
covering the period from March to September 2006.
53
It also appears that
the salaries for October 2006 to January 2007 were already delivered, as
stated in the Order of the LA dated May 3, 2007.
54
As also claimed by the
petitioners, the salary checks for February to May 15, 2007 were
deposited with the NLRCs cashier.
55
Meanwhile, RPN has been asking
the respondents to open ATM accounts to facilitate the deposit of their
salaries, but they have refused.
RPN also attached to its petition photocopies of the biweekly cash
vouchers for the individual salaries of the respondents from January to
August 2010.
56
The vouchers show in detail their gross individual monthly
salaries, withholdings for income tax and members premiums for SSS,
Pag-IBIG and Philhealth, and net salaries for the period September 2008
to April 2009.
57
The salaries were also shown to have been ready for
release on the 15th and 30th of the month.
All these clearly show that the petitioners have substantially complied with
the LAs Decision dated September 27, 2006 ordering the respondents
payroll reinstatement.
Petitioners are not guilty of indirect
contempt.
Indirect contempt
58
refers to contumacious or stubbornly disobedient acts
perpetrated outside of the court or tribunal and may include misbehaviour
of an officer of a court in the performance of his official duties or in his
official transactions; disobedience of or resistance to a lawful writ,
process, order, judgment, or command of a court, or injunction granted by
a court or a judge; any abuse or any unlawful interference with the
process or proceedings of a court not constituting direct contempt; or any
improper conduct tending directly or indirectly to impede, obstruct or
degrade the administration of justice.
59
To be considered contemptuous,
an act must be clearly contrary to or prohibited by the order of the court or
tribunal. A person cannot, for disobedience, be punished for contempt
unless the act which is forbidden or required to be done is clearly and
exactly defined, so that there can be no reasonable doubt or uncertainty
as to what specific act or thing is forbidden or required.
60

The power to punish for contempt should be exercised on the
preservative, not on the vindictive, principle. Only occasionally should a
court invoke this inherent power in order to retain that respect, without
which the administration of justice will falter or fail. Only in cases of clear
and contumacious refusal to obey should the power be exercised. Such
power, being drastic and extraordinary in its nature, should not be
resorted to unless necessary in the interest of justice.
61

It is not denied that after the order of reinstatement of the respondents,
RPN forthwith restored them in its payroll without diminution of their
benefits and privileges, or loss of seniority rights. They retained their
entitlement to the benefits under the CBA. Respondents regularly
received their salaries and benefits, notwithstanding that the company has
been in financial straits. Any delays appear to have been due to
misunderstandings as to the exact place and time of the fortnightly
payments, or because the respondents were tardy in collecting them from
the Bank of Commerce at Broadcast City Branch or from the NLRC
cashier. The petitioners tried proposing opening an ATM accounts for
them, but the respondents rejected the idea.
We are convinced under the circumstances that there was no sufficient
basis for the charge of indirect contempt against the petitioners, and that
the same was made without due regard for their right to exercise their
management prerogatives to preserve the viability of the company and the
harmony of the workplace. Indeed, the LA in the Order dated January 12,
20 I 0 found no more legal basis to execute his Order dated May 3, 2007,
and declared that the said order has been mooted by the petitioners'
compliance.
WHEREFORE, premises considered, the petition is GRANTED. The
Resolutions of the Court of Appeals dated November 14, 2008 and March
9, 2009 in CA-G.R. SP No. I 05945 are SET ASIDE. The Order dated May
3, 2007 of the Labor Arbiter in NLRC-NCR Case Nos. 00-03-01908-06,
00-04-03488-06, 00-03-02042-06, 00-03-01920-06 and 00 03-01922-06,
finding petitioners Mia Concio, Leonor Linao, Ida Barrameda and Lourdes
Angeles, guilty of indirect contempt is REVERSED.


















JENNY F. PECKSON, Petitioner,
vs.
ROBINSONS SUPERMARKET CORPORATION, JODY GADIA, ROENA
SARTE, and RUBY ALEX, Respondents.
D E C I S I O N
REYES, J .:
For resolution is the Petition for Review on Certiorari
1
of the
Decision
2
dated June 8, 2011 of the Court of Appeals (CA) in CA-G.R. SP
No. 109604 affirming the Decision
3
dated February 25, 2009 of the
National Labor Relations Commission (NLRC) in NLRC NCR Case No.
00-11-09316-06/NLRC LAC No. 002020-07, which upheld the
Dismissal
4
by the Labor Arbiter (LA) on May 30, 2007 of Jenny F.
Peckson's (petitioner) complaint for constructive dismissal.
Antecedent Facts and Proceedings
The petitioner first joined the Robinsons Supermarket Corporation (RSC)
as a Sales Clerk on November 3, 1987. On October 26, 2006, she was
holding the position of Category Buyer when respondent Roena Sarte
(Sarte), RSCs Assistant Vice-President for Merchandising, reassigned
her to the position of Provincial Coordinator, effective November 1, 2006.
Claiming that her new assignment was a demotion because it was non-
supervisory and clerical in nature, the petitioner refused to turn over her
responsibilities to the new Category Buyer, or to accept her new
responsibilities as Provincial Coordinator. Jody Gadia (Gadia) and Ruby
Alex (Alex) were impleaded because they were corporate officers of the
RSC.
In a memorandum to the petitioner dated November 13, 2006,
6
the RSC,
through Sarte, demanded an explanation from her within 48 hours for her
refusal to accept her new assignment despite written and verbal
demands. Sarte cited a company rule, Offenses Subject to Disciplinary
Action No. 4.07, which provided that "[d]isobedience, refusal or failure to
do assigned task or to obey superiors/officials orders/instructions, or to
follow established procedures or practices without valid reason" would be
meted the penalty of suspension.
The petitioner ignored the 48-hour deadline to explain imposed by Sarte.
On November 23, 2006, Sarte issued her another
memorandum,
7
reiterating her demand to explain in writing within 48
hours why she persistently refused to assume her new position, and
warning her that this could be her final chance to present her side or be
deemed to have waived her right to be heard.
In her one-paragraph reply submitted on November 27, 2006,
8
the
petitioner stated that she could not accept the position of Provincial
Coordinator since she saw it as a demotion. As it turned out, however, on
November 9, 2006, the petitioner had already filed a complaint for
constructive dismissal
9
against RSC, Sarte, Gadia and Alex
(respondents).
On November 30, 2006, Sarte issued an instruction to the petitioner to
report to RSCs Metroeast Depot to help prepare all shipping manifests for
Cagayan de Oro and Bacolod, but as witnessed by RSC employees
Raquel Torrechua and Alex, she did not obey as instructed.
10
Again on
December 8, 2006, Sarte issued a similar instruction, citing the need for
certain tasks from the petitioner in preparation for the coming Christmas
holidays, but the petitioner again refused to heed.
11

As culled from the assailed appellate court decision,
12
the petitioner
argued before the LA that the true organizational chart of the RSC
showed that the position of Category Buyer was one level above that of
the Provincial Coordinator, and that moreover, the job description of a
Provincial Coordinator was largely clerical and did not require her to
analyze stock levels and order points, or source new local and
international suppliers, or monitor stock level per store and recommend
items for replenishment, or negotiate better items and discounts from
suppliers, duties which only a Category Buyer could perform. She also
claimed that she was instructed to file a courtesy resignation in exchange
for a separation pay of one-half salary per year of service.
The respondents in their position paper denied the correctness of the
organizational chart presented by the petitioner. They maintained that her
transfer was not a demotion since the Provincial Coordinator occupied a
"Level 5" position like the Category Buyer, with the same work conditions,
salary and benefits. But while both positions had no significant disparity in
the required skill, experience and aptitude, the position of Category Buyer
demanded the traits of punctuality, diligence and attentiveness because it
is a frontline position in the day-to-day business operations of RSC which
the petitioner, unfortunately, did not possess.
The respondents also raised the petitioners record of habitual tardiness
as far back as 1999, as well as poor performance rating in 2005. In
addition to her performance rating of "2.8" out of "4.0" in 2005 equivalent
to "below expectation," the petitioner was found to be tardy in June and
July 2005, 13 times, and for the entire 2005, 57 times; that she was
suspended twice in 2006 for 20 instances of tardiness and absences from
July to September 2006 alone.
13
We also note that the petitioner was
suspended for seven (7) days in September and October 2005 for
deliberately violating a company policy after she was seen having lunch
with a company supplier.
14

In her affidavit,
15
respondent Sarte denied that the reassignment of the
petitioner as Provincial Coordinator was motivated by a desire to besmirch
the name of the latter. She asserted that it was made in the exercise of
management prerogative and sound discretion, in view of the nsitive
position occupied by the Category Buyer in RSCs daily operations, vis--
vis the petitioners "below expectation" performance rating and habitual
tardiness.
In dismissing the petitioners complaint, the LA in its Decision
16
dated May
30, 2007 ruled that job reassignment or classification is a strict prerogative
of the employer, and that the petitioner cannot refuse her transfer from
Category Buyer to Provincial Coordinator since both positions
commanded the same salary structure, high degree of responsibility and
impeccable honesty and integrity. Upholding the employers right not to
retain an employee in a particular position to prevent losses or to promote
profitability, the LA found no showing of any illegal motive on the part of
the respondents in reassigning the petitioner. The transfer was dictated by
the need for punctuality, diligence and attentiveness in the position of
Category Buyer, which the petitioner clearly lacked. Moreover, the LA
ruled that her persistent refusal to accept her new position amounted to
insubordination, entitling the RSC to dismiss her from employment.
A month after the above ruling, or on June 22, 2007, the petitioner
tendered her written "forced" resignation,
17
wherein she complained that
she was being subjected to ridicule by clients and co-employees alike on
account of her floating status since the time she refused to accept her
transfer. She likewise claimed that she was being compelled to accept the
position of Provincial Coordinator without due process.
On appeal, the NLRC in its Decision
18
dated February 25, 2009 sustained
the findings of the LA. It agreed that the lateral transfer of the petitioner
from Category Buyer to Provincial Coordinator was not a demotion
amounting to constructive dismissal, since both positions belonged to Job
Level 5 and between them there is no significant disparity in terms of the
requirements of skill, experience and aptitude. Contrary to the petitioners
assertion, the NLRC found that the position of Provincial Coordinator is
not a rank-and-file position but in fact requires the exercise of discretion
and independent judgment, as well as appropriate recommendations to
management to ensure the faithful implementation of its policies and
programs; that it even exercises influence over the Category Buyer in that
it includes performing a recommendatory function to guide the Category
Buyer in making decisions on the right assortment, price and quantity of
the items, articles or merchandise to be sold by the store.
The NLRC then reiterated the settled rule that management may transfer
an employee from one office to another within the business establishment,
provided there is no demotion in rank or diminution of salary, benefits, and
other privileges, and the action is not motivated by discrimination or bad
faith or effected as a form of punishment without sufficient cause. It ruled
that the respondents were able to show that the petitioners transfer was
not unreasonable, inconvenient or prejudicial, but was prompted by her
failure to meet the demands of punctuality, diligence, and personal
attention of the position of Category Buyer; that management wanted to
give the petitioner a chance to improve her work ethic, but her obstinate
refusal to assume her new position has prejudiced respondent RSC, even
while she continued to receive her salaries and benefits as Provincial
Coordinator.
On petition for certiorari to the CA, the petitioner insisted that her transfer
from Category Buyer to Provincial Coordinator was a form of demotion
without due process, and that the respondents unjustifiably depicted her
as remiss in her duties, flawed in her character, and unduly obstinate in
her refusal to accept her new post.
In its Decision
19
dated June 8, 2011, the CA found no basis to deviate
from the oft-repeated tenet that the findings of fact and conclusions of the
NLRC when supported by substantial evidence are generally accorded
not only great weight and respect but even finality, and are thus deemed
binding.
20

Petition for Review in the Supreme Court
Now on petition for review to this Court, the petitioner maintains that her
lateral transfer from Category Buyer to Provincial Coordinator was a
demotion amounting to constructive dismissal because her reassignment
was not a valid exercise of management prerogative, but was done in bad
faith and without due process. She claims that the respondents
manipulated the facts to show that she was tardy; that they even
surreptitiously drew up a new organizational chart of the Merchandising
Department of RSC, soon after she filed her complaint for illegal
dismissal, to show that the position of Provincial Coordinator belonged to
Job Level 5 as the Category Buyer, and not one level below; that the
company deliberately embarrassed her when it cut off her email access;
that they sent memoranda to her clients that she was no longer a
Category Buyer, and to the various Robinsons branches that she was now
a Provincial Coordinator, while Milo Padilla (Padilla) was taking over her
former position as Category Buyer; that for seven (7) months, they placed
her on floating status and subjected her to mockery and ridicule by the
suppliers and her co-employees; that not only was there no justification for
her transfer, but the respondents clearly acted in bad faith and with
discrimination, insensibility and disdain to make her stay with the company
intolerable for her.
Our Ruling
We find no merit in the petition.
This Court has consistently refused to interfere with the exercise by
management of its prerogative to regulate the employees work
assignments, the working methods and the place and manner of work.
As we all know, there are various laws imposing all kinds of burdens and
obligations upon the employer in relation to his employees, and yet as a
rule this Court has always upheld the employers prerogative to regulate
all aspects of employment relating to the employees work assignment,
the working methods and the place and manner of work. Indeed, labor
laws discourage interference with an employers judgment in the conduct
of his business.
21

In Rural Bank of Cantilan, Inc. v. Julve,
22
the Court had occasion to
summarize the general jurisprudential guidelines affecting the right of the
employer to regulate employment, including the transfer of its employees:
Under the doctrine of management prerogative, every employer has the
inherent right to regulate, according to his own discretion and judgment,
all aspects of employment, including hiring, work assignments, working
methods, the time, place and manner of work, work supervision, transfer
of employees, lay-off of workers, and discipline, dismissal, and recall of
employees. The only limitations to the exercise of this prerogative are
those imposed by labor laws and the principles of equity and substantial
justice.
While the law imposes many obligations upon the employer, nonetheless,
it also protects the employers right to expect from its employees not only
good performance, adequate work, and diligence, but also good conduct
and loyalty. In fact, the Labor Code does not excuse employees from
complying with valid company policies and reasonable regulations for their
governance and guidance.
Concerning the transfer of employees, these are the following
jurisprudential guidelines: (a) a transfer is a movement from one position
to another of equivalent rank, level or salary without break in the service
or a lateral movement from one position to another of equivalent rank or
salary; (b) the employer has the inherent right to transfer or reassign an
employee for legitimate business purposes; (c) a transfer becomes
unlawful where it is motivated by discrimination or bad faith or is effected
as a form of punishment or is a demotion without sufficient cause; (d) the
employer must be able to show that the transfer is not unreasonable,
inconvenient, or prejudicial to the employee.
23
(Citations omitted)
In Philippine Japan Active Carbon Corporation v. NLRC,
24
it was held that
the exercise of managements prerogative concerning the employees
work assignments is based on its assessment of the qualifications,
aptitudes and competence of its employees, and by moving them around
in the various areas of its business operations it can ascertain where they
will function with maximum benefit to the company.1wphi1
It is the employers prerogative, based on its assessment and perception
of its employees qualifications, aptitudes, and competence, to move them
around in the various areas of its business operations in order to ascertain
where they will function with maximum benefit to the company. An
employees right to security of tenure does not give him such a vested
right in his position as would deprive the company of its prerogative to
change his assignment or transfer him where he will be most useful.
When his transfer is not unreasonable, nor inconvenient, nor prejudicial to
him, and it does not involve a demotion in rank or a diminution of his
salaries, benefits, and other privileges, the employee may not complain
that it amounts to a constructive dismissal.
25

As a privilege inherent in the employers right to control and manage its
enterprise effectively, its freedom to conduct its business operations to
achieve its purpose cannot be denied.
26
We agree with the appellate court
that the respondents are justified in moving the petitioner to another
equivalent position, which presumably would be less affected by her
habitual tardiness or inconsistent attendance than if she continued as a
Category Buyer, a "frontline position" in the day-to-day business
operations of a supermarket such as Robinsons.
If the transfer of an employee is not unreasonable, or inconvenient, or
prejudicial to him, and it does not involve a demotion in rank or a
diminution of his salaries, benefits and other privileges, the employee may
not complain that it amounts to a constructive dismissal.
As we have already noted, the respondents had the burden of proof that
the transfer of the petitioner was not tantamount to constructive dismissal,
which as defined in Blue Dairy Corporation v. NLRC,
27
is a quitting
because continued employment is rendered impossible, unreasonable or
unlikely, or an offer involving a demotion in rank and diminution of pay:
The managerial prerogative to transfer personnel must be exercised
without grave abuse of discretion, bearing in mind the basic elements of
justice and fair play. Having the right should not be confused with the
manner in which that right is exercised. Thus, it cannot be used as a
subterfuge by the employer to rid himself of an undesirable worker. In
particular, the employer must be able to show that the transfer is not
unreasonable, inconvenient or prejudicial to the employee; nor does it
involve a demotion in rank or a diminution of his salaries, privileges and
other benefits. Should the employer fail to overcome this burden of proof,
the employees transfer shall be tantamount to constructive dismissal,
which has been defined as a quitting because continued employment is
rendered impossible, unreasonable or unlikely; as an offer involving a
demotion in rank and diminution in pay. Likewise, constructive dismissal
exists when an act of clear discrimination, insensibility or disdain by an
employer has become so unbearable to the employee leaving him with no
option but to forego with his continued employment.
Thus, as further held in Philippine Japan Active Carbon
Corporation,
28
when the transfer of an employee is not unreasonable, or
inconvenient, or prejudicial to him, and it does not involve a demotion in
rank or a diminution of his salaries, benefits and other privileges, the
employee may not complain that it amounts to a constructive dismissal.
29

But like all other rights, there are limits to the exercise of managerial
prerogative to transfer personnel, and on the employer is laid the burden
to show that the same is without grave abuse of discretion, bearing in
mind the basic elements of justice and fair play.
30
Indeed, management
prerogative may not be used as a subterfuge by the employer to rid
himself of an undesirable worker.
31

Interestingly, although the petitioner claims that she was constructively
dismissed, yet until the unfavorable decision of the LA on May 30, 2007,
for seven (7) months she continued to collect her salary while also
adamantly refusing to heed the order of Sarte to report to the Metroeast
Depot. It was only on June 22, 2007, after the LAs decision, that she filed
her "forced" resignation. Her deliberate and unjustified refusal to assume
her new assignment is a form of neglect of duty, and according to the LA,
an act of insubordination. We saw how the company sought every chance
to hear her out on her grievances and how she ignored the memoranda of
Sarte asking her to explain her refusal to accept her transfer. All that the
petitioner could say was that it was a demotion and that her floating status
embarrassed her before the suppliers and her co-employees.
The respondents have discharged the burden of proof that the transfer of
the petitioner was not tantamount to constructive dismissal.
In Jarcia Machine Shop and Auto Supply, Inc. v. NLRC,
32
a machinist who
had been employed with the petitioner company for 16 years was reduced
to the service job of transporting filling materials after he failed to report for
work for one (1) day on account of an urgent family matter. This is one
instance where the employees demotion was rightly held to be an
unlawful constructive dismissal because the employer failed to show
substantial proof that the employees demotion was for a valid and just
cause:
In case of a constructive dismissal, the employer has the burden of
proving that the transfer and demotion of an employee are for valid and
legitimate grounds such as genuine business necessity. Particularly, for a
transfer not to be considered a constructive dismissal, the employer must
be able to show that such transfer is not unreasonable, inconvenient, or
prejudicial to the employee; nor does it involve a demotion in rank or a
diminution of his salaries, privileges and other benefits. Failure of the
employer to overcome this burden of proof, the employees demotion shall
no doubt be tantamount to unlawful constructive dismissal. x x
x.
33
(Citation omitted)
In the case at bar, we agree with the appellate court that there is
substantial showing that the transfer of the petitioner from Category Buyer
to Provincial Coordinator was not unreasonable, inconvenient, or
prejudicial to her. The petitioner failed to dispute that the job
classifications of Category Buyer and Provincial Coordinator are similar, or
that they command a similar salary structure and responsibilities. We
agree with the NLRC that the Provincial Coordinators position does not
involve mere clerical functions but requires the exercise of discretion from
time to time, as well as independent judgment, since the Provincial
Coordinator gives appropriate recommendations to management and
ensures the faithful implementation of policies and programs of the
company. It even has influence over a Category Buyer because of its
recommendatory function that enables the Category Buyer to make right
decisions on assortment, price and quantity of the items to be sold by the
store.
34

We also cannot sustain the petitioners claim that she was not accorded
due process and that the respondents acted toward her with
discrimination, insensibility, or disdain as to force her to forego her
continued employment. In addition to verbal reminders from Sarte, the
petitioner was asked in writing twice to explain within 48 hours her refusal
to accept her transfer. In the first, she completely remained silent, and in
the second, she took four (4) days to file a mere one-paragraph reply,
wherein she simply said that she saw the Provincial Coordinator position
as a demotion, hence she could not accept it. Worse, she may even be
said to have committed insubordination when she refused to turn over her
responsibilities to the new Category Buyer, Padilla, and to assume her
new responsibilities as Provincial Coordinator and report to the Metroeast
Depot as directed. This was precisely the reason why the petitioner was
kept on floating status. To her discredit, her defiance constituted a neglect
of duty, or an act of insubordination, per the LA.
Neither can we consider tenable the petitioners contention that the
respondents deliberately held her up to mockery and ridicule when they
cut off her email access, sent memoranda to her clients that she was no
longer a Category Buyer, and to the various Robinsons branches that she
was now a Provincial Coordinator on floating status and that Padilla was
taking over her position as the new Category Buyer. It suffices to state
that these measures are the logical steps to take for the petitioners
unjustified resistance to her transfer, and were not intended to subject her
to public embarrassment.
Judicial review of labor cases does not go beyond the evaluation of the
sufficiency of the evidence upon which labor officials findings rest.
Finally, as reiterated in Acebedo Optical,
35
this Court is not a trier of facts,
and only errors of law are generally reviewed in petitions for review on
certiorari criticizing decisions of the CA. Questions of fact are not
entertained, and in labor cases, this doctrine applies with greater force.
Factual questions are for labor tribunals to resolve.
36
Thus:
Judicial Review or labor cases does not go beyond the evaluation of the
sufficiency of the evidence upon which its labor officials' findings rest. As
such, the findings of facts and conclusion of the NLRC are generally
accorded not only great weight and respect but even clothed with finality
and deemed binding on this Court as long as they are supported by
substantial evidence. This Court finds no basis for deviating from said
doctrine without any clear showing that the findings of the Labor Arbiter,
as affirmed by the NLRC, are bereft of substantiation. Particularly 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.
x x x x
As earlier stated, we find no basis for deviating from the oft espoused
legal tenet that findings of facts and conclusion of the labor arbiter are
generally accorded not only great weight and respect but even clothed
with finality and deemed binding on this Court as long as they are
supported by substantial evidence, without any clear showing that such
findings of fact, as affirmed by the NLRC, are bereft of substantiation.
More so, when passed upon and upheld by the Com1 of Appeals, they
are binding and conclusive upon us and will not normally be disturbed; x x
x.
37
(Citations omitted)
It is our ruling, that the findings of fact and conclusion of the LA, as
affirmed by the NLRC, are supported by substantial evidence, as found by
the CA.
WHEREFORE, the premises considered, the Decision of the Court of
Appeals dated June 8, 2011 in CA-G.R. SP No. 109604 is AFFIRMED.