Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
National Capital Region
Quezon City

PERLITO BOHOL DIGAL,

Complainant-Appellant

-versus- NLRC- NCR Case No. 11-12975-15

UNITED PHILIPPINES LINES,

INC., JOSE GERONIMO
CONSUNJI
Respondents-Appellees
x-----------------------------------------x

MEMORANDUM ON APPEAL

COMPLAINANT-APPELLANT, assisted by Public Attorney’s Office

through undersigned counsel, and unto this Honorable Commission, most
respectfully appeals the July 28, 2016 Decision of the Honorable Labor
Arbiter Reynante L. San Gaspar, which was received by the
undersigned counsel on September 28, 2016, a Copy of which we
respectfully attach herein as our ANNEX A, thus:

PREFATORY STATEMENT
Labor is property, and as such merits protection. The
right to make it available is next in importance to the rights of
life and liberty. It lies to a large extent at the foundation of most
other forms of property, and of all solid individual and national
prosperity.1

Consequently, a worker cannot be deprived of his

job, a property right, without satisfying the
requirements of due process. As enshrined in our bill of
rights, no person shall be deprived of life, liberty or property
without due process of law.2

1 Slaughter House Cases, 16 Wall. (83 US) 36, 127, penned by Mr. Justice Noah Haynes Swayne of the United States Supreme Court,
as reiterated in the case of JULITO SAGALES VS. RUSTAN'S COMMERCIAL CORPORATION, G.R. No. 166554, November 27, 2008
2 Pablo Polsotin, Jr. vs. De Guia Enterprises, G.R. No. 172624, December 05, 2011

Page 1 of 20
 The Decision rendered by the Honorable Labor Arbiter is being
respectfully appealed due to serious errors in the findings of facts, which if
not corrected, would cause grave or irreparable damage or injury to the
complainant-appellant. More particularly, the said Decision is being
appealed based on the following grounds:

I
WITH DUE RESPECT TO THE HONORABLE LABOR
ARBITER, THE COMPLAINANT-APPELLANT WAS
ILLEGALLY DISMISSED BY HEREIN RESPONDENT-
APPELLEE

II

WITH DUE RESPECT TO THE HONORABLE LABOR

ARBITER, COMPLAINANTS-APPELLANTS ARE
ENTITLED TO PAYMENT OF THEIR MONEY CLAIMS

THE PARTIES

1. Complainant-Appellant is PERLITO BOHOL DIGAL (“Digal”),

and resides at #310 Sampaloc St., CEMBO, Makati City.

2. Respondent-Appellee on the other hand, is UNITED

PHILIPPINES LINES, INC. (UPL, Inc.), and may be served at
its postal address at Plaza Santiago Bldg., Sta. Clara Street,
Intramuros, Manila. UPL is being represented by its General
Manager, MR. JOSE GERONIMO CONSUNJI (“Consuji”).

STATEMENT OF FACTS

3. Complainant-Appellant was employed by herein Respondent-

Appellee on July 6, 2005 as a messenger/driver, and was receiving a
monthly salary of Php 14,000.00. Sometime in the year 2011, the
owner of UPL was impressed by his work ethics, promoting him as
Flag State Processor of the SHELL crewing department of UPL as a
result. He was receiving a monthly salary of Php 16,000.00;

Page 2 of 20
4. Sometime in February 2013, a certain Manuel Bernando
(“Bernardo”) went to the office of Complainant-Appellant. Mr.
Bernardo introduced himself as the owner of the Sea Dragon
Consultancy Services, which the latter represented as one of the
training centers referred to them;

5. Thereafter, on March 2013, one Morel Demerin (“Demerin”)

inquired from Complainant-Appellant as to where he could get a
Basic Safety Training (BST) and Proficiency and Survival-Craft and
Rescue Services (PSCRBT). Considering that the Complainant-
Appellant knows of several training centers and finding no reason to
refuse, he responded that such Certificate can be obtained with any
training center, and suggested Sea Dragon Consultancy Services as
one of them;

6. On May 2013, Manuel Bernardo went to his office and left a brown
envelope and requested him to give the same to Demerin. After a few
days, Demerin then arrived at his office and got the envelope left by
Bernardo. Demerin then asked the complainant-appellant where he
could give his certificates for assessment and he was advised to go to
the Mariner’s Polytechnic Training Center (“MPTC”);

7. In June 2013, Demerin came to complainant-appellant’s office and

narrated his sad experience at MPTC. It was here were Demerin
discovered that the certificates given to him by Bernardo were
actually fake. Demerin also apologized to complainant-appellant
because he was forced to finger-point the latter as the source of the
fake certificates. Complainant-appellant was surprised upon
learning the revelation of Demerin. Complainant-appellant then
explained to Demerin that he had no participation in the falsification
of said training certificates;

8. On July 2013, complainant-appellant received a subpoena from the

NBI asking him to explain about the complaint for falsification filed

Page 3 of 20
 by MARINA against him. Thereafter on March 2014, a case was filed
formally filed by MARINA against complainant-appellant before the
Office of the City Prosecutor of Manila. Prompted by the letter given
by MARINA, complainant-appellant was summoned by Atty. Jose
Adolfo (“Atty. Adolfo”), counsel for the respondent-appellee, and
was informed about the letter sent to them by MARINA. Atty. Adolfo
tried to compel complainant-appellant to confess what he knew
about the irregularities committed by the Shell Crewing
Department; and that a grievance committee will be formed to
investigate the complaint of a certain Mr. Demerin. It was learned
later on that the said grievance committee was being organized to
investigate the complaint of Mr. Demerin;

9. During the hearing conducted by UPL’s grievance committee, Atty.

Adolfo again forced complainant-appellant to admit the supposed
irregularities being committed by the Shell Crewing Department.
Complainant-appellant was told that it will be for his own good if he
confesses the same. At this point in time, Complainant-appellant
was being forced to confess notwithstanding that there was yet no
definitive and concrete finding as regards Complainant-Appellant’s
supposed liability;

10. On the second hearing conducted by the said grievance

committee, the Complainant-Appellant presented among its
witnesses, Ms. Lany Co, who was the Secretary of Mr. Bernardo. Ms.
Lany Co testified that complainant-appellant had nothing to do with
the supposed falsification and counterfeiting of MPTC Certificates
perpetrated by Mr. Bernardo;

11. Still, on March 31, 2014, complainant received a memorandum

informing him that his services with UPL has already been
terminated “FOR SERIOUS MISCONDUCT AND FOR FRAUD OR
BREACH OF THE TRUST REPOSED IN AN EMPLOYEE OF THE
COMPANY OCCUPYING A SENSITIVE POSITION”;

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12.Complainant-appellant approached Mr. Consunji
concerning his termination. Mr. Consunji guaranteed to
complainant-appellant that should the former be able to
clear his name, he will be allowed to return to work;

13. On June 2015, complainant-appellant received a copy of

the Resolution from the Office of the City Prosecutor of
Manila dismissing the case filed against him. A copy of the
said Resolution absolving complainant-appellant is hereto
attached as ANNEX B.

a. Complainant-Appellant immediately informed

respondent-appellee Consunji regarding the
dismissal of the case. Despite complainant-
appellant having cleared his name, respondent-
appellee UPL and Mr. Consuji still failed to
make good their promise;

14.As a result of Complainants-appellants’ refusal to re-admit the

complaint-appellant despite being able to clear his name, and
despite the fact of non-participation in the supposed act of falsifying
the subject certificates, he was constrained to file a complaint with
this Honorable Office for Illegal Dismissal and non-payment of
money claims on January 6, 2016, evidenced by a copy of his Position
Paper hereto attached as ANNEX C. This was later on followed by
his Reply dated January 18, 2016, and his Rejoinder dated February
2, 2016, both of which are hereto marked as our ANNEXES D and
E;

15. Respondent-appellee, on the other hand, countered that

complainant-appellant’s allegations. Through their Position Papers,
they maintain and reiterated that the actions of complainant-
appellant as a Flag State Processor constitute serious misconduct
and is considered a breach of the trust reposed on the employee.

Page 5 of 20
 Respondent-appellee further maintained the supposed evidence
presented in the grievance proceeding are more than sufficient to
justify the termination of the complainant-appellant;

16.On September 28, 2016, complainant-appellant, thru the

undersigned counsel, received the Decision being questioned. The
dispositive portion of said Decision reads:

WHEREFORE, premises considered, the instant

complaint is DISMISSED for lack of merit.

SO ORDERED.
17. Feeling aggrieved, complainant-appellant hereby files this instant
appeal setting forth the following basic points for the consideration
of the Honorable Commission, thus:

DISCUSSION

18. The Honorable Labor Arbiter held that “while complainant

[appellant] may not have participated in the falsification of the said
Mariner’s Polytechnic Training Center (“MPTC CERTIFICATES”),
he directly participated in the use thereof by processing and
authenticating them.”3 Banking on this conclusion, the Honorable
Labor Arbiter declared that the acts of herein Complainant-
Appellant already qualify as acts of dishonesty and disloyalty under
existing Labor Laws4 without mentioning even a single
jurisprudence to support the same;

a. Such acts, as the Honorable Labor Arbiter further

explained, are considered as acts inimical to the
interest of herein Respondent-Appellee. Hence the
pursuant to the aforesaid analysis, the Honorable
Labor Arbiter concluded that Respondent-Appellee

3 Page6 of the Decision dated July 28, 2016

4 Supra, Note 1

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 was well within its authority to terminate the
employment of the Complainant-Appellant;5

19.We respectfully disagree on the above ratiocination of the

Honorable Labor Arbiter. Misconduct (insofar as Labor Law is
concerned) has been consistently defined by jurisprudence as an
improper or wrong conduct. It is a transgression of some
established and definite rule of action, a forbidden act, a dereliction
of duty, willful in character, and implies wrongful intent
and not mere error in judgment.6 Having said that, not all
wrongs committed by an employee will qualify as misconduct, or at
the very least, be even be characterized as “serious”. A misconduct
must be serious, grave, and aggravated in nature such that dismissal
would be the commensurate penalt;

20. Jurisprudence dictates that in order for misconduct or

improper behavior can only be considered a just cause for dismissal
if the following elements are shown to be present, thus: (a) the
misconduct must be serious; (b) it must relate to the
performance of the employee’s duties showing that the employee
has become unfit to continue working for the employee; and lastly
(c) it must have been performed with wrongful intent.
Consequently, without necessarily admitting Complainant-
Appellant’s fault, the latter should NOT be faulted and penalized
assuming arguendo that he failed to detect and ascertain Mr.
Bernardo’s fraudulent scheme. If the Complainant-Appellant
had been outsmarted by Mr. Bernardo, it is but unfair to
treat Mr. Digal as an accessory, or even be viewed as a
having collaborated with the real perpetrators of the

5 Supra, Note 1
6Yabut v. Manila Electric Company, G.R. No. 190436, January 16, 2012, 663 SCRA 92, 105; Torreda v. Toshiba Information Equipment
(Phils.), Inc., 544 Phil. 71, 92 (2007), citing Fujitsu Computer Products Corp. of the Philippines v. Court of Appeals, 494 Phil. 697 (2005);
Caltex (Philippines), Inc. v. Agad, G.R. No. 162017, April 23, 2010, 619 SCRA 196, 213; and Tomada, Sr. v. RFM Corporation-Bakery
Flour Division, G.R. No. 163270, September 11, 2009, 599 SCRA 381, 391.

Page 7 of 20
 fraudulent scheme. At any rate, should there be any fault on the
part of Complainant-Appellant, it is respectfully submitted that the
severe penalty of termination is not warranted and unjustified. If at
all, what has been so far established is the fact that Complainant-
appellant was completely unaware of Mr. Bernardo’s scheme, and
that he likewise fell victim to Mr. Bernardo’s cunning and skillful
deception;

21.On the foregoing considerations therefore, the penalty of immediate

dismissal from employment is clearly not warranted under the
circumstances;

22. The Supreme Court has consistently ruled that “it is cruel and
unjust to impose the drastic penalty of dismissal if not
commensurate to the gravity of the misdeed”.7 Thus:

“… Where a penalty less punitive would suffice,

whatever missteps may be committed by labor ought not to
be visited with a consequence so severe. It is not only
because of the laws concern for the workingman. There is,
in addition, his family to consider. Unemployment brings
untold hardships and sorrows on those dependent on the
wage-earner. The misery and pain attendant on the loss of
jobs then could be avoided if there be acceptance of the
view that under all circumstances of this case, should not
be deprived of their means of livelihood. Nor is this to
condone what had been done by them. For all this while,
since private respondent considered them separated from
the service, they had not been paid…”8

23. It is a hornbook doctrine that infractions committed by an

employee should merit only the corresponding penalty
demanded by the circumstance. The penalty must be
commensurate with the act, conduct or omission imputed to

7 P.J. LHUILLIER, INC. AND MARIO RAMON LUDEÑA, PETITIONERS, VS. FLORDELIZ VELAYO, RESPONDENT, G.R. No. 198620, November
12, 2014
8 Almira v. B.F. Goodrich Philippines, Inc., L-34974, July 25, 1974, 58 SCRA 120

Page 8 of 20
 the employee and must be imposed in connection with the
disciplinary authority of the employer;9

24. In fact, there is nothing from the records that would show or at
the very least, indicate that Complainant-Appellant performed such
act with wrongful intent when he processed and authenticated the
said MPTC Certificates;

25. In fact, the conclusion arrived upon by the Honorable Labor

Arbiter showing that Complainant-Appellant did not participate in
the aforesaid falsification (assuming the same be true) only goes to
show that it is highly impossible for Mr. Bernardo to have
authenticated these MPTC Certificates with wrongful intent.
Actus reus non facit reum nisi mens sit rea.10 Hence, having
no knowledge and being not privy to the possible
counterfeit nature of the said Certificates, it cannot be
therefore gainsaid that Complainant-appellant was in bad
faith when he performed such act as he was completely
unaware of the factual background surrounding said
MPTC Certificates;

26. The records of the grievance committee hearing clearly show that
Complainant-appellant had nothing to conceal or hide as he had no
idea on the supposed scheme made by Bernardo. Clearly therefore,
no dishonesty or disloyalty was committed by the employee in this
case. Viewed in its context, the acts of processing and authenticating
the documents of aspiring applicants, which was part of the duties
and responsibilities of Complainant-appellant, were completely
done in good faith;

9 Caltex Refinery Employees Association (CREA) v. National Labor Relations Commission (Third Division), 316 Phil. 335 (1995); Radio
Communications of the Philippines, Inc. v. National Labor Relations Commission, G.R. No. 102958, June 25, 1993, 223 SCRA 656.
10 an act does not make a defendant guilty without a guilty mind

Page 9 of 20
27. Contrary to the findings of the Honorable Labor Arbiter, a clear
reading of the written letter supposedly prepared by herein
complainant-appellant, as well as the Minutes of the supposed
grievance meeting show that NO ADMISSION ON THE
PURPORTED FALSIFICATION WAS EVER MADE BY
COMPLAINANT;

28. Additionally, we wish to respectfully reiterate our earlier

submission that the dismissal of the criminal complaint against
Complainant-Appellant had already destroyed the credence of the
imputation made by Respondent-Appelle concerning Digal’s
allegations of fraudulent participation in the falsification of the said
MPTC certificates. This is bolstered by the fact that a careful reading
of the aforesaid “Minutes”11, or even the Letter of complainant
addressed to Mr. Jose Geronimo Consunji dated March 24, 2014
(marked and attached by Respondent-Appelless in their Position
Paper as Annex 4), will show that there was no admission, impied
or express, on the purported act of falsification or connivance
thereof. Quite obviously, there is failure to cite particular acts or
circumstances which would show that complainant has any hand in
this offense serving as basis for his termination;

29. Not only is the said “Minutes” bereft of any mention on the
alleged participation of complainant in the acts being complained
of, this Honorable Office will likewise note that the said “Minutes”
was not signed by the complainant. Considering that the said March
27, 2014 Disciplinary Action Proceedings was presided by
respondents themselves, one cannot help but doubt on the veracity
of what is being narrated in the said “Minutes”. This doubt is further
supported by the reality that the employer and employee do not
stand on equal footing, the latter easily yielding to the directive of

11 Marked and attached as Annex 6 by Respondent-Appellees in their Position Paper dated December 18, 2015.

Page 10 of 20
 the former in order to protect his work, the only source of income
for the laborer and his family;12

30. The argument by respondents that the complainant has signed

the said “Minutes” is similarly misplaced since complainant Digal
has only signed the “Attendance Sheet”13 of the said March 27,
2014. This “Minutes” which was drafted and finalized by the
Management WITHOUT any participation of Complainant-
Appellant Digal, is separate and distinct from the Attendance Sheet”
signed by herein Complainant-Appellant;

31.As we have earlier pointed out, the respondents’ allegation of the

alleged participation of Complainant in the purported falsification
of MPTC Certificates rests in dubious and unreliable grounds since
no less than the Office of the City Prosecutor has already upheld the
innocence of Complainant Digal on this controversy. A reading of
the Resolution as issued by the Honorable Prosecutor likewise
mentions that Mr. Demerin failed to appear before the said office in
order to confirm the supposed participation of Complainant Digal
in the said scheme. Without sufficient grounds to support the bare
and naked allegations that Complainant Digal is in cahoots with Mr.
Bernardo, the ground of fraud or serious breach of trust and
confidence obviously rests on dubious grounds;

32. What is more worrisome is the apparent justification by

Respondent-Appellees of Complainant-Appellant’s termination
because of certain letters14 written by seafarers accusing
Complainant-Appellant of demanding an amount for the MPTC
Certificates; which letters were not even shown to
Complainant-Appellant’s during the said grievance

12 ALPHA C. JACULBE vs. SILLIMAN UNIVERSITY, G.R. No. 156934, dated March 16, 2007
13 Marked and attached as Annex 7 by Respondent-Appellees in their Position Paper dated December 18, 2015.
14 Marked and attached as Annexes 1 to 9 by Respondent-Appellees in their Rejoinder dated February 3, 2016

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 committee hearings. Neither were the authors of said
letter presented therein;

33. What is worrisome is that these letters were ONLY

shown by respondent-appellee in its Rejoinder, and only
after the supposed grievance hearings have been
concluded. Even more frustrating, is that complainant-
appellant has been unable to rebut or question the same
considering that the Rejoinder was the last pleading that
need to be submitted before the case is to be considered as
submitted for resolution by the Honorable Labor Arbiter.

a. It is but highly irregular and runs counter to the very

principles of due process to allow the dismissal of the
Complainant-Appellant on these letters that were only
subsequently shown after Complainant-Appellant
had already been removed from his employment.
Clearly, there is was no valid investigation or
verification was conducted by Respondent-Appellee
on these supposed letters from seafarers. In fact,
complainant-appellant has been unable to confront
the supposed complainant-seafarers tagging him to
the supposed counterfeit certificates;

34. Relative thereto, we find it very significant to mention the

pronouncements made by the Honorable Supreme Court in the case
of Perez vs. Philippine Telegraph & Telephone Company, G.R. No.
152048, dated April 07, 2009, to which we respectfully quote, thus:

“The standard for the hearing requirement, ample

opportunity, is couched in general language
revealing the legislative intent to give some degree
of flexibility or adaptability to meet the peculiarities
of a given situation. To confine it to a single rigid

Page 12 of 20
 proceeding such as a formal hearing will defeat its
spirit.

Significantly, Section 2(d), Rule I of the

Implementing Rules of Book VI of the Labor Code
itself provides that the so-called standards of due
process outlined therein shall be observed
"substantially," not strictly. This is a recognition
that while a formal hearing or conference is ideal, it
is not an absolute, mandatory or exclusive avenue of
due process.

An employee's right to be heard in termination cases

under Article 277(b) as implemented by Section
2(d), Rule I of the Implementing Rules of Book VI of
the Labor Code should be interpreted in broad
strokes. It is satisfied not only by a formal face to
face confrontation but by any meaningful
opportunity to controvert the charges against him
and to submit evidence in support thereof.

A hearing means that a party should be given a

chance to adduce his evidence to support his side of
the case and that the evidence should be taken into
account in the adjudication of the controversy. "To
be heard" does not mean verbal argumentation
alone inasmuch as one may be heard just as
effectively through written explanations,
submissions or pleadings. Therefore, while the
phrase "ample opportunity to be heard" may in fact
include an actual hearing, it is not limited to a
formal hearing only. In other words, the existence of
an actual, formal "trial-type" hearing, although
preferred, is not absolutely necessary to satisfy the
employee's right to be heard.”

35. Thus, in Solid Development Corporation Workers Association v.

Solid Development Corporation,15 the Supreme Court declared
that:

[W]ell-settled is the dictum that the twin

requirements of notice and hearing constitute the
essential elements of due process in the dismissal of
employees. It is a cardinal rule in our jurisdiction
that the employer must furnish the employee with

15 G.R. No. 165995, 14 August 2007, 530 SCRA 132.

Page 13 of 20
 two written notices before the termination of
employment can be effected: (1) the first apprises
the employee of the particular acts or omissions for
which his dismissal is sought; and (2) the second
informs the employee of the employer's decision to
dismiss him. The requirement of a hearing, on
the other hand, is complied with as long as
there was an opportunity to be heard, and
not necessarily that an actual hearing was
conducted.

36. Unfortunately for Complainant-Appellant, the above

jurisprudential mandate has not been complied with concerning the
supposed letter complaints of seamen that only appeared
subsequent after he was terminated from employment. Shortly
stated, records will show that Complainant-Appellant was
not given the opportunity to be heard in order for him to
be given the chance to controvert or be confronted with
these letter-complaints; nor was he able to confront the
supposed seafarers that drafted the same;

37. While the Honorable Labor Arbiter, in its Decision,

refused to rule on the validity of the termination of
Complainant-Appellant on account of the supposed
breach of trust, we respectfully reiterate our earlier
submission that the same is not properly supported by law
and jurisprudence;

38. One of the most basic rules under Article 297 of the Labor Code,
is that in order for Willful Breach of Trust can be considered as a
valid ground for termination, the Employer must show that the
employee concerned holds a position of trust and confidence. It is
the breach of this trust that results in the employer’s loss of
confidence in the employee;16

16 Nat’l Sugar Refineries Corp. vs. NLRC, G.R. No. 122277 February 24, 1998

Page 14 of 20
39. Relative to the immediately preceding paragraph, jurisprudence
dictates that in order for an employer to be able to invoke loss of
trust and confidence in terminating an employee under Article
282(c) of the Labor Code, there must be a clear showing that: (1)
the employee must be holding a position of trust and
confidence; and (2) there must be an act that would justify
the loss of trust and confidence.17 While loss of trust and
confidence should be genuine, it does not require proof beyond
reasonable doubt,18 it being sufficient that there is some basis to
believe that the employee concerned is responsible for the
misconduct and that the nature of the employee’s participation
therein rendered him unworthy of trust and confidence demanded
by his position;19

40. Thus, loss of confidence ideally applies only to cases involving

employee occupying positions of trust and confidence, e.g.,
managerial employees, and those situations where the employee is
routinely charged with the care and custody of the employer’s
money or property, e.g., cashiers, auditors, property custodian,
etc.;20

41.In the landmark case of Bristol Myers Squibb (Phils.), Inc. v.

Baban21, the Honorable High Tribunal discussed the requisites for
a valid dismissal on the ground of loss of trust and confidence in this
brilliance:
“It is clear that Article 282(c) of the Labor Code
allows an employer to terminate the services of an
employee for loss of trust and confidence. The right of
employers to dismiss employees by reason of loss of trust
and confidence is well established in jurisprudence.

The first requisite for dismissal on the

ground of loss of trust and confidence is that the

17 Jerusalem v. Keppel Monte Bank, G.R. No. 169564, April 6, 2011, 647 SCRA 313, 323-324.
18 Central Pangasinan Electric Cooperative, Inc. v. Macaraeg, 443 Phil. 866, 874 (2003).
19 Philippine Plaza Holdings, Inc. v. Episcope, G.R. No. 192826, February 27, 2013, 692 SCRA 227, 236.
20 Id. Note 10
21 G.R. No. 167449, December 17, 2008, 574 SCRA 198.

Page 15 of 20
 employee concerned must be one holding a
position of trust and confidence. Verily, We must
first determine if respondent holds such a position.

There are two (2) classes of positions of trust. The

first class consists of managerial
employees. They are defined as those vested with
the powers or prerogatives to lay down
management policies and to hire, transfer
suspend, lay-off, recall, discharge, assign or
discipline employees or effectively recommend
such managerial actions. The second class
consists of cashiers, auditors, property
custodians, etc. They are defined as those who in
the normal and routine exercise of their
functions, regularly handle significant amounts
of money or property.

xxx xxx xxx

The second requisite is that there must be an

act that would justify the loss of trust and
confidence. Loss of trust and confidence to be a
valid cause for dismissal must be based on a
willful breach of trust and founded on clearly
established facts. The basis for the dismissal must
be clearly and convincingly established but proof
beyond reasonable doubt is not necessary.”
(Underscoring and Emphases supplied.)

42. Applying the foregoing pronouncement in the case of

Complainant Digal, the latter’s termination could not be anchored
under the theory of loss of trust and confidence for the simple reason
that his position as “Flagstate Processor”, could hardly be
considered as a “Managerial Employee”, nor can it be
considered as one regularly handling significant amounts of
money or property under the normal and routine exercise
of their functions. Hence on this premise, respondents obviously
failed to establish the first requisite relative to dismissals involving
loss of trust and confidence since Complainant Digal’s position in the
Company is NOT considered as a position of trust and
confidence;

Page 16 of 20
43. As a general rule, the doctrine of “trust and confidence” is
restricted to managerial employees.22 This means that the rules on
termination of employment applicable to managerial or fiduciary
employees are different from those involving ordinary employees
not holding positions of trust and confidence. In the latter case, mere
accusations by the employer will not be sufficient.23 Thus, with
respect to rank-and-file personnel, loss of trust and
confidence as a ground for valid dismissal requires proof
of involvement in the alleged events in question and that
mere uncorroborated assertions and accusations by the
employer will not be sufficient. But as regards a managerial
employee, the mere existence of a basis for believing that he has
breached the trust of his employer would suffice for his dismissal;24

44. Assuming arguendo, but without necessarily admitting, that

Complainant-appellant’s position falls under either of the aforecited
two categories of employees holding positions of trust, the
termination should still be negated by the fact that the second
requisite was not sufficiently complied with by the respondents;

45. While the law and Courts of Justice recognize the right of an
employer to dismiss an employee based on loss of trust and
confidence, the evidence of the employer must clearly and
convincingly establish the facts upon which the loss of
trust and confidence in the employee is based.25 Thus, to be a
valid ground for dismissal, loss of trust and confidence must be
based on a willful breach of trust and founded on clearly established
facts. A breach is willful if it is done intentionally,
knowingly and purposely, without justifiable excuse, as
distinguished from an act done carelessly, thoughtlessly,

22 THE COCA-COLA EXPORT CORPORATION vs. CLARITA P. GACAYAN, G.R. No. 149433 dated December 15, 2010
23 Sagales vs. Rustan’s Commercial Corp., G.R. No. 166554, Nov. 27, 2008
24 Id, Note 27
25 Samillano v. National Labor Relations Commission, 333 Phil. 658, 667 (1996), citing Imperial Textile Mills, Inc. v. NLRC, G.R. No.
101527, January 19, 1993, 217 SCRA 237.

Page 17 of 20
 heedlessly or inadvertently.26 It must rest on substantial
grounds and not on the employers arbitrariness, whims,
caprices or suspicion; otherwise, the employee would
remain eternally at the mercy of the employer.27 Further, in
order to constitute a just cause for dismissal, the act
complained of must be work-related and show that the
employee concerned is unfit to continue working for the
employer.28 Such ground for dismissal has never been intended to
afford an occasion for abuse because of its subjective nature;29

46. It must also be remembered that in illegal dismissal cases like the
one at bench, the burden of proof is upon the employer to show that
the employees termination from service is for a just and valid
cause.30 The employers case succeeds or fails on the strength
of its evidence and not the weakness of that adduced by the
employee,31 in keeping with the principle that the scales of
justice should be tilted in favor of the latter in case of doubt
in the evidence presented by them.32 Often described as more
than a mere scintilla, the quantum of proof is substantial evidence
which is understood as such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion, even if other
equally reasonable minds might conceivably opine otherwise.33
Failure of the employer to discharge the foregoing onus would mean
that the dismissal is not justified and, therefore, illegal;34

47. From the foregoing premises, it need not be stressed that

Complainant-Appellant is clearly entitled to moral and exemplary

26 AMA Computer College, Inc. v. Garay, G.R. No. 162468, January 23, 2007, 512 SCRA 312, 316, citing Brent Hospital, Inc. v. NLRC,
G.R. No. 117593, July 10, 1998, 292 SCRA 304, 310.
27 Id. at 316-317, citing Fujitsu Computer Products Corporation of the Philippines v. Court of Appeals, G.R. No. 158232, March 31,
2005, 454 SCRA 737, 760.
28 Cruz v. Court of Appeals, 527 Phil. 230, 243 (2006), citing Fujitsu Computer Products Corporation of the Philippines v. Court of
Appeals, G.R. No. 158232, March 31, 2005, 454 SCRA 737, 760.
29 Id, Note 9
30 Functional, Inc. v. Granfil, G.R. No. 176377, November 16, 2011, citing Harborview Restaurant v. Labro, G.R. No. 168273, April 30,
2009, 587 SCRA 277, 281.
31 Id., citing Philippine Long Distance Telephone Company, Inc. v. Tiamson, 511 Phil. 384, 394 (2005).
32 Id., citing Triple Eight Integrated Services, Inc. v. National Labor Relations Commission, 359 Phil. 955, 964 (1998).
33Id., citing Oriental Shipmanagement Co., Inc. v. Bastol, G.R. No. 186289, June 29, 2010, 622 SCRA 352, 377.
34 Id., citing Tacloban Far East Marketing Corporation v. Court of Appeals, G.R. No. 182320, September 11, 2009, 599 SCRA 662, 670.

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 damages for having been illegally dismissed to their detriment and
prejudice. These acts of the respondents are considered oppressive
and in wanton disregard of the mandates of the law in labor and
social justice.
PRAYER
WHEREFORE premises considered, it hereby respectfully
prayed that the Decision rendered by the Honorable Labor Arbiter
Reynante L. San Gaspar be set aside and a new decision be rendered
in favor of complainant-appellant PERLITO B. DIGAL.
Other reliefs just and equitable under the premises are likewise
prayed for.
Respectfully submitted. Makati City, 5 October 2016.
DEPARTMENT OF JUSTICE
PUBLIC ATTORNEY’S OFFICE
NCR - Makati District Office
16F Makati City Hall
Makati City

By:

JONATHAN O. BAJETA
Public Attorney II
Roll No. 62410
IBP No. 1018363/1.6.16/Laguna
PTR No. MKT 5339477/1.13.16/Makati City
MCLE Compliance No. V-0015846/valid until 04/14/2019

VERIFICATION AND CERTIFICATION AGAINST

NON-FORUM SHOPPING

I, PERLITO BOHOL DIGAL, Filipino, and a resident of #310

Sampaloc St., CEMBO, Makati City after being duly sworn to in
accordance with law, do hereby depose and state that:

1. I am the Petitioner in this case;

2. I have caused the preparation of the foregoing Petition;

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 3. I have read the contents thereof and the facts stated therein are
true and correct of my own personal knowledge and/or on the
basis of copies of documents and records in my possession;

4. I have not commenced any other action or proceedings involving

the same issue/s in any court, tribunal or quasi-judicial agency
and, to the best of my knowledge, no such other action or claim is
pending therein;

5. If I should thereafter learn that another, same or similar action or

claim has been filed or is pending, I shall report that fact within
five (5) days therefrom to his Honorable Court.

PERLITO BOHOL DIGAL

SUBSCRIBED AND SWORN TO before me this 5th day of

October, 2016 at Makati City, affiant exhibiting to me his
_____________________issued by ____________; the same
serving as his competent piece of identity.

ATTY. MARIANNE T. PAYAWAL-

ANGELES
Public Attorney II
NOTARY PUBLIC
Ex-Officio by virtue of R.A. 9406
Copy furnished:

Copy furnished:
United Philippine Lines, Inc.
Represented by Mr. Jose Geronimo Consunji -registered mail-
Plaza Santiago Building, Sta. Clara St.,
Intramuros Manila NCR 1002

EXPLANATION ON MODE OF FILING AND

SERVICE
(Pursuant to Section 11, Rule 13 of the
1997 Rules of Civil Procedure)

Except for the Office of the Local Civil Registrar, the undersigned
counsel is constrained to serve the foregoing by registered mail,
personal service not being practicable due to lack of manpower, expense
and distance.

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