Abbott Laboratories, Philippines vs. Alcaraz

G.R. No. 192571. July 23, 2013.
ABBOTT LABORATORIES, PHILIPPINES, CECILLE A.

TERRIBLE, EDWIN D. FEIST, MARIA OLIVIA T.
YABUTMISA, TERESITA C. BERNARDO, AND ALLAN G.
ALMAZAR, petitioners, vs. PEARLIE ANN F. ALCARAZ,
respondent.
Remedial Law; Civil Procedure; Forum Shopping; Certification

Against Forum Shopping; The prohibition against forum shopping
is different from a violation of the certification requirement under
Section 5, Rule 7 of the Rules of Court.·At the outset, it is
noteworthy to mention that the prohibition against forum shopping
is different from a violation of the certification requirement under
Section 5, Rule 7 of the Rules of Court. In Sps. Ong v. CA, 384
SCRA 139
_______________
* EN BANC.
683
VOL. 701, JULY 23, 2013 683
Abbott Laboratories, Philippines vs. Alcaraz
(2002), the Court explained that: x x x The distinction between the

prohibition against forum shopping and the certification
requirement should by now be too elementary to be misunderstood.
To reiterate, compliance with the certification against forum
shopping is separate from and independent of the avoidance of the
act of forum shopping itself. There is a difference in the treatment
between failure to comply with the certification requirement and
violation of the prohibition against forum shopping not only in
terms of imposable sanctions but also in the manner of enforcing
them. The former constitutes sufficient cause for the dismissal
without prejudice [to the filing] of the complaint or initiatory
pleading upon motion and after hearing, while the latter is a
ground for summary dismissal thereof and for direct contempt.
Same; Same; Same; Forum shopping takes place when a
litigant files multiple suits involving the same parties, either
simultaneously or successively, to secure a favorable judgment.·
Forum shopping takes place when a litigant files multiple suits
involving the same parties, either simultaneously or successively, to
secure a favorable judgment. It exists where the elements of litis
pendentia are present, namely: (a) identity of parties, or at least
such parties who represent the same interests in both actions; (b)
identity of rights asserted and relief prayed for, the relief being
founded on the same facts; and (c) the identity with respect to the
two preceding particulars in the two (2) cases is such that any
judgment that may be rendered in the pending case, regardless of
which party is successful, would amount to res judicata in the other
case.
Same; Same; Same; Section 5(b), Rule 7 of the Rules of Court
requires that a plaintiff who files a case should provide a complete
statement of the present status of any pending case if the latter
involves the same issues as the one that was filed.·Section 5(b),
Rule 7 of the Rules of Court requires that a plaintiff who files a case
should provide a complete statement of the present status of any
pending case if the latter involves the same issues as the one that
was filed. If there is no such similar pending case, Section 5(a) of
the same rule provides that the plaintiff is obliged to declare under
oath that to the best of his knowledge, no such other action or claim
is pending.
Labor Law; Probationary Employees; A probationary employee,
like a regular employee, enjoys security of tenure. However, in cases
of
684
684 SUPREME COURT REPORTS ANNOTATED
probationary employment, aside from just or authorized causes of

termination, an additional ground is provided under Article 295 of
the Labor Code, i.e., the probationary employee may also be
terminated for failure to qualify as a regular employee in accordance
with the reasonable standards made known by the employer to the
employee at the time of the engagement.·A probationary employee,
like a regular employee, enjoys security of tenure. However, in cases
of probationary employment, aside from just or authorized causes of
termination, an additional ground is provided under Article 295 of
the Labor Code, i.e., the probationary employee may also be
terminated for failure to qualify as a regular employee in
accordance with the reasonable standards made known by the
employer to the employee at the time of the engagement. Thus, the
services of an employee who has been engaged on probationary
basis may be terminated for any of the following: (a) a just or (b) an
authorized cause; and (c) when he fails to qualify as a regular
employee in accordance with reasonable standards prescribed by
the employer.
Same; Same; If the employer fails to inform the probationary
employee of the reasonable standards upon which the regularization
would be based on at the time of the engagement, then the said
employee shall be deemed a regular employee.·Section 6(d), Rule I,
Book VI of the Implementing Rules of the Labor Code provides that
if the employer fails to inform the probationary employee of the
reasonable standards upon which the regularization would be based
on at the time of the engagement, then the said employee shall be
deemed a regular employee, viz.: (d) In all cases of probationary
employment, the employer shall make known to the employee the
standards under which he will qualify as a regular employee at the
time of his engagement. Where no standards are made known to the
employee at that time, he shall be deemed a regular employee. In
other words, the employer is made to comply with two (2)
requirements when dealing with a probationary employee: first, the
employer must communicate the regularization standards to the
probationary employee; and second, the employer must make such
communication at the time of the probationary employeeÊs
engagement. If the employer fails to comply with either, the
employee is deemed as a regular and not a probationary employee.
Same; Same; An employer is deemed to have made known the
standards that would qualify a probationary employee to be a
regular
685
VOL. 701, JULY 23, 2013 685
employee when it has exerted reasonable efforts to apprise the

employee of what he is expected to do or accomplish during the trial
period of probation.·An employer is deemed to have made known
the standards that would qualify a probationary employee to be a
regular employee when it has exerted reasonable efforts to apprise
the employee of what he is expected to do or accomplish during the
trial period of probation. This goes without saying that the
employee is sufficiently made aware of his probationary status as
well as the length of time of the probation. The exception to the
foregoing is when the job is self-descriptive in nature, for instance,
in the case of maids, cooks, drivers, or messengers. Also, in
Aberdeen Court, Inc. v. Agustin, 456 SCRA 32 (2005), it has been
held that the rule on notifying a probationary employee of the
standards of regularization should not be used to exculpate an
employee who acts in a manner contrary to basic knowledge and
common sense in regard to which there is no need to spell out a
policy or standard to be met. In the same light, an employeeÊs
failure to perform the duties and responsibilities which have been
clearly made known to him constitutes a justifiable basis for a
probationary employeeÊs nonregularization.
Same; Same; Basic knowledge and common sense dictate that
the adequate performance of oneÊs duties is, by and of itself, an
inherent and implied standard for a probationary employee to be
regularized; such is a regularization standard which need not be
literally spelled out or mapped into technical indicators in every
case.·Verily, basic knowledge and common sense dictate that the
adequate performance of oneÊs duties is, by and of itself, an inherent
and implied standard for a probationary employee to be regularized;
such is a regularization standard which need not be literally spelled
out or mapped into technical indicators in every case. In this
regard, it must be observed that the assessment of adequate duty
performance is in the nature of a management prerogative which
when reasonably exercised · as Abbott did in this case · should be
respected. This is especially true of a managerial employee like
Alcaraz who was tasked with the vital responsibility of handling the
personnel and important matters of her department.
Same; Same; If the termination is brought about by the failure
of an employee to meet the standards of the employer in case of
probationary employment, it shall be sufficient that a written notice
is served the employee, within a reasonable time from the effective
date
686
of termination.·A different procedure is applied when terminating

a probationary employee; the usual two-notice rule does not govern.
Section 2, Rule I, Book VI of the Implementing Rules of the Labor
Code states that „[i]f the termination is brought about by the x x x
failure of an employee to meet the standards of the employer in case
of probationary employment, it shall be sufficient that a written
notice is served the employee, within a reasonable time from the
effective date of termination.‰
Same; Company Policy; A company policy partakes of the nature
of an implied contract between the employer and employee.· A
company policy partakes of the nature of an implied contract
between the employer and employee. In Parts Depot, Inc. v.
Beiswenger, 170 S.W.3d 354 (Ky. 2005), it has been held that:
[E]mployer statements of policy . . . can give rise to contractual
rights in employees without evidence that the parties mutually
agreed that the policy statements would create contractual rights in
the employee, and, hence, although the statement of policy is signed
by neither party, can be unilaterally amended by the employer
without notice to the employee, and contains no reference to a
specific employee, his job description or compensation, and although
no reference was made to the policy statement in pre-employment
interviews and the employee does not learn of its existence until
after his hiring. Toussaint, 292 N.W.2d at 892. The principle is akin
to estoppel. Once an employer establishes an express
personnel policy and the employee continues to work while
the policy remains in effect, the policy is deemed an implied
contract for so long as it remains in effect. If the employer
unilaterally changes the policy, the terms of the implied
contract are also thereby changed.
Same; Termination of Employment; Nominal Damages; Case
law has settled that an employer who terminates an employee for a
valid cause but does so through invalid procedure is liable to pay the
latter nominal damages.·Case law has settled that an employer
who terminates an employee for a valid cause but does so through
invalid procedure is liable to pay the latter nominal damages. In
Agabon v. NLRC (Agabon), 442 SCRA 573 (2004), the Court
pronounced that where the dismissal is for a just cause, the lack of
statutory due process should not nullify the dismissal, or render it
illegal, or ineffectual. However, the employer should indemnify the
687
VOL. 701, JULY 23, 2013 687
employee for the violation of his statutory rights. Thus, in Agabon,

the employer was ordered to pay the employee nominal damages in
the amount of P30,000.00.
Same; Same; If the dismissal is based on a just cause under
Article 282 of the Labor Code (now Article 296) but the employer
failed to comply with the notice requirement, the sanction to be
imposed upon him should be tempered because the dismissal process
was, in effect, initiated by an act imputable to the employee; if the
dismissal is based on an authorized cause under Article 283 (now
Article 297) but the employer failed to comply with the notice
requirement, the sanction should be stiffer because the dismissal
process was initiated by the employerÊs exercise of his management
prerogative.·It was explained that if the dismissal is based on a
just cause under Article 282 of the Labor Code (now Article 296) but
the employer failed to comply with the notice requirement, the
sanction to be imposed upon him should be tempered because the
dismissal process was, in effect, initiated by an act imputable to the
employee; if the dismissal is based on an authorized cause under
Article 283 (now Article 297) but the employer failed to comply with
the notice requirement, the sanction should be stiffer because the
dismissal process was initiated by the employerÊs exercise of his
management prerogative. Hence, in Jaka, where the employee was
dismissed for an authorized cause of retrenchment · as
contradistinguished from the employee in Agabon who was
dismissed for a just cause of neglect of duty · the Court ordered
the employer to pay the employee nominal damages at the higher
amount of P50,000.00.
Corporation Law; Liability of Corporate Directors; Requisites to
Hold Corporate Directors, Trustees or Officers Personally Liable for
Corporate Acts.·It is hornbook principle that personal liability of
corporate directors, trustees or officers attaches only when: (a) they
assent to a patently unlawful act of the corporation, or when they
are guilty of bad faith or gross negligence in directing its affairs, or
when there is a conflict of interest resulting in damages to the
corporation, its stockholders or other persons; (b) they consent to
the issuance of watered down stocks or when, having knowledge of
such issuance, do not forthwith file with the corporate secretary
their written objection; (c) they agree to hold themselves personally
and solidarily liable with the corporation; or (d) they are made by
specific provision of law personally answerable for their corporate
action.
688
Civil Law; Bad Faith; It is a well-settled rule that bad faith

cannot be presumed and he who alleges bad faith has the onus of
proving it.·A judicious perusal of the records show that other than
her unfounded assertions on the matter, there is no evidence to
support the fact that the individual petitioners herein, in their
capacity as AbbottÊs officers and employees, acted in bad faith or
were motivated by ill will in terminating AlcarazÊs services. The fact
that Alcaraz was made to resign and not allowed to enter the
workplace does not necessarily indicate bad faith on AbbottÊs part
since a sufficient ground existed for the latter to actually proceed
with her termination. On the alleged loss of her personal
belongings, records are bereft of any showing that the same could
be attributed to Abbott or any of its officers. It is a well-settled rule
that bad faith cannot be presumed and he who alleges bad faith has
the onus of proving it. All told, since Alcaraz failed to prove any
malicious act on the part of Abbott or any of its officers, the Court
finds the award of moral or exemplary damages unwarranted.
BRION, J., Dissenting Opinion:
Labor Law; Appeals; View that a labor case finds its way into
the judicial system from the National Labor Relations Commission
(NLRC) whose decision is final and executory; When an
administrative ruling (or any ruling for that matter) is already final
and unappealable, the only recourse open under the Rules of Court is
through a limited review on jurisdictional grounds under Rule 65.·
A labor case finds its way into the judicial system from the NLRC
whose decision is final and executory. Finality simply means that
the NLRC ruling is no longer appealable; the legal intent is to
confine adjudication of labor cases to labor tribunals with the
expertise in these cases and thereby bring the resolution of the case
to a close at the soonest possible time. When an administrative
ruling (or any ruling for that matter) is already final and
unappealable, the only recourse open under the Rules of Court is
through a limited review on jurisdictional grounds under
Rule 65. This has been the mode of review followed since the Labor
Code took effect in November 1974; labor cases were directly
brought to this Court but only on jurisdictional grounds under Rule
65.
Same; Same; View that under Section 65 of the Rules of Court,
the sole ground or issue allowed is jurisdictional · the presence or
689
VOL. 701, JULY 23, 2013 689
absence of grave abuse of discretion on the part of the National

Labor Relations Commission (NLRC) in ruling on the case; whereas,
a Rule 45 review the Supreme Court simply determines whether the
legal correctness of the Court of AppealÊs finding that the NLRC
ruling of illegal dismissal had basis in fact and in law.·Under the
Rule 65 review by the CA, Montoya reiterates that the sole ground
or issue allowed is jurisdictional – the presence or absence of grave
abuse of discretion on the part of the NLRC in ruling on the case. To
state the obvious, this kind of review would have made it easier for
the CA to handle the case; in the absence of a grave abuse of
discretion, it can dismiss labor cases for lack of grave abuse of
discretion as we do in this Court. From the CA, further recourse is
through a Rule 45 review by this Court on questions of law in
accordance with prevailing rulings. The office of a petition for
review on certiorari is not to examine and settle factual questions
already ruled upon below. In this review, the Court simply
determines whether the legal correctness of the CAÊs finding
that the NLRC ruling of illegal dismissal had basis in fact
and in law.
Same; Probationary Employees; View that while the respondent
might have been hired as a probationary employee, the petitionerÊs
evidence did not establish the employersÊ compliance with the
probationary employment requirements under Article 281 of the
Labor Code (as amended) and Section 6(d) of the Implementing
Rules of Book VI, Rule I of the Labor Code (as amended). Thus, the
respondent should be considered a regular employee and the case
should be reviewed on this basis.·While the respondent might have
been hired as a probationary employee, the petitionersÊ evidence
did not establish the employersÊ compliance with the
probationary employment requirements under Article 281 of
the Labor Code (as amended) and Section 6(d) of the
Implementing Rules of Book VI, Rule I of the Labor Code (as
amended). Thus, the respondent should be considered a regular
employee and the case should be reviewed on this basis. Article 281
of the Labor Code, as amended, provides: ART. 281. Probationary
employment.·Probationary employment shall not exceed six (6)
months from the date the employee started working, unless it is
covered by an apprenticeship agreement stipulating a longer period.
The services of an employee who has been engaged on a
probationary basis may be terminated for a just cause or when he
fails to qualify as a regular employee in accordance with
reasonable standards made known
690
by the employer to the employee at the time of his

engagement. An employee who is allowed to work after a
probationary period shall be considered a regular employee. [italics
supplied; emphasis ours] Further, Section 6(d) of the Implementing
Rules of Book VI, Rule I of the Labor Code, as amended, states: Sec.
6. Probationary employment.·There is probationary employment
where the employee, upon his engagement, is made to undergo a
trial period during which the employer determines his fitness to
qualify for regular employment, based on reasonable standards
made known to him at the time of engagement. [emphasis
supplied]
Same; Same; View that a valid probationary employment
requires the concurrence of two requirements; Failing in one or both,
the employee, even if initially hired as a probationary employee,
should be viewed and considered a regular employee.·A valid
probationary employment requires the concurrence of two
requirements. First, the employer shall make known the
reasonable standard (performance standard) whose compliance
will render the employee qualified to be a regular employee.
Second, the employer shall inform the employee of the
applicable performance standard at the time of his/her
engagement. Failing in one or both, the employee, even if initially
hired as a probationary employee, should be viewed and considered
a regular employee. The ponencia apparently fully agrees with the
above statement of the applicable law as it substantially recites the
same requirements, including the consequence that upon failure to
comply with these same requirements, „the employee is deemed as a
regular and not a probationary employee.‰ It continues, however,
with a twist that effectively negates what it has stated and
admitted about the need to communicate the regularization
standards to the employee.
Same; Termination of Employment; View that to justify the
dismissal of an employee, the employer carries the burden of proving
that the dismissal was for a just cause and with the observance of
due process prior to dismissal.·To justify the dismissal of an
employee, the employer carries the burden of proving that the
dismissal was for a just cause and with the observance of due
process prior to dismissal. The employer has to discharge this
burden by clear, accurate, consistent and convincing evidence; in
case of doubt, the presumption in the employeeÊs favor under Article
4 of the Labor Code should apply.
691
VOL. 701, JULY 23, 2013 691
Same; Same; View that a probationary employee does not have

lesser rights than a regular employee under the Labor Code in terms
of the just cause for the termination of an employment.·An
important legal point that should not be lost in considering this case
is that a probationary employee does not have lesser rights
than a regular employee under the Labor Code in terms of
the just cause for the termination of an employment. While
the strict application of Article 282 of the Labor Code may be
relaxed because the employee is still under probation (so that
analogous probationary status rules may apply), the same essential
just cause for dismissal must be present and must be proven. In
other words, probationary employment does not mean that the
employee is under an „employment at will‰ situation as that phrase
is understood in American jurisprudence. To reiterate, the fact that
the respondent was still in her probationary period of employment
did not lessen the burden of proof that the law imposed on the
petitioners to prove the just cause for her dismissal. Probationary
employees are protected by the security of tenure provision of the
Constitution and they cannot be removed from their position except
only for cause.
PETITION for review on certiorari of the decision and

resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Laguesma, Magsalin, Consulta & Gastardo for
petitioner.
Jimenez, Baroque and Salazar for respondent.
PERLAS-BERNABE, J.:
Assailed in this petition for review on certiorari1 are the
Decision2 dated December 10, 2009 and Resolution3 dated
June 9, 2010 of the Court of Appeals (CA) in CA-G.R. SP
No.
_______________
1 Rollo (G.R. No. 192571), pp. 14-58.
2 Id., at pp. 1040-1054. Penned by Associate Justice Isaias Dicdican,
with Associate Justices Remedios A. Salazar-Fernando and Romeo F.
Barza, concurring.
3 Id., at pp. 1139-1140.
692

101045 which pronounced that the National Labor

Relations Commission (NLRC) did not gravely abuse its
discretion when it ruled that respondent Pearlie Ann F.
Alcaraz (Alcaraz) was illegally dismissed from her
employment.
The Facts
On June 27, 2004, petitioner Abbott Laboratories,
Philippines (Abbott) caused the publication in a major
broadsheet newspaper of its need for a Medical and
Regulatory Affairs Manager (Regulatory Affairs Manager)
who would: (a) be responsible for drug safety surveillance
operations, staffing, and budget; (b) lead the development
and implementation of standard operating
procedures/policies for drug safety surveillance and
vigilance; and (c) act as the primary interface with internal
and external customers regarding safety operations and
queries.4 Alcaraz · who was then a Regulatory Affairs and
Information Manager at Aventis Pasteur Philippines,
Incorporated (another pharmaceutical company like
Abbott) · showed interest and submitted her application
on October 4, 2004.5
On December 7, 2004, Abbott formally offered Alcaraz
the abovementioned position which was an item under the
companyÊs Hospira Affiliate Local Surveillance Unit
(ALSU) department.6 In AbbottÊs offer sheet,7 it was stated
that Alcaraz
_______________
4 Id., at p. 74.
5 Id., at pp. 75-76.
6 Id., at pp. 51-52. Based on AbbottÊs organizational structure, the
Regulatory Affairs Manager was under the umbrella of Hospira ALSU, a
sub-department in AbbottÊs Hospital Care Division. ALSU serves as a
transition body of Hospira, Inc., a corporation based in the United States
of America, while it is in the process of organization in the Philippines.
Abbott intended to cede the qualified employees under ALSU to Hospira
once the latter obtained its own legal personality to engage in business in
the Philippines.
7 Id., at pp. 165-168. Abbott sent Alcaraz an initial offer sheet on
December 1, 2004. The compensation contained therein was re-
693
VOL. 701, JULY 23, 2013 693

was to be employed on a probationary basis.8 Later that

day, she accepted the said offer and received an electronic
mail (e-mail) from AbbottÊs Recruitment Officer, petitioner
Teresita C. Bernardo (Bernardo), confirming the same.
Attached to BernardoÊs e-mail were AbbottÊs organizational
chart and a job description of AlcarazÊs work.9
On February 12, 2005, Alcaraz signed an employment
contract which stated, inter alia, that she was to be placed
on probation for a period of six (6) months beginning
February 15, 2005 to August 14, 2005. The said contract
was also signed by AbbottÊs General Manager, petitioner
Edwin Feist (Feist):10
PROBATIONARY EMPLOYMENT
Dear Pearl,
After having successfully passed the pre-employment
requirements, you are hereby appointed as follows:
Position Title : Regulatory Affairs
Manager
Department : Hospira
The terms of your employment are:
Nature of Employment : Probationary
Effectivity : February 15, 2005 to
August 14, 2005
Basic Salary : P110,000.00/ month
It is understood that you agree to abide by all existing
policies, rules and regulations of the company, as well as
those, which may be hereinafter promulgated.
_______________
negotiated and thus, the increased offer as per the offer sheet dated
December 7, 2004.
8 Id., at pp. 167-168.
9 Id., at pp. 127, 169-172.
10 Id., at p. 174.
694

Unless renewed, probationary appointment expires on the

date indicated subject to earlier termination by the Company
for any justifiable reason.
If you agree to the terms and conditions of your employment,
please signify your conformity below and return a copy to
HRD.
Welcome to Abbott!
Very truly yours,
Sgd.
EDWIN D. FEIST
General Manager
CONFORME:
Sgd.
PEARLIE ANN FERRER-
ALCARAZ
During AlcarazÊs pre-employment orientation,

petitioner Allan G. Almazar (Almazar), HospiraÊs Country
Transition Manager, briefed her on her duties and
responsibilities as Regulatory Affairs Manager, stating
that: (a) she will handle the staff of Hospira ALSU and will
directly report to Almazar on matters regarding HopiraÊs
local operations, operational budget, and performance
evaluation of the Hospira ALSU Staff who are on
probationary status; (b) she must implement AbbottÊs Code
of Good Corporate Conduct (Code of Conduct), office
policies on human resources and finance, and ensure that
Abbott will hire people who are fit in the organizational
discipline; (c) petitioner Kelly Walsh (Walsh), Manager of
the Literature Drug Surveillance Drug Safety of Hospira,
will be her immediate supervisor; (d) she should always
coordinate with AbbottÊs human resource officers in the
management and discipline of the staff; (e) Hospira ALSU
will spin off from Abbott in early 2006 and will be officially
incorporated and known as Hospira, Philippines. In the
interim, Hospira ALSU operations will still be under
AbbottÊs management, excluding the technical aspects of
the operations which is under the
695
VOL. 701, JULY 23, 2013 695

control and supervision of Walsh; and (f) the processing of

information and/or raw material data subject of Hospira
ALSU operations will be strictly confined and controlled
under the computer system and network being maintained
and operated from the United States. For this purpose, all
those involved in Hospira ALSU are required to use two
identification cards: one, to identify them as AbbottÊs
employees and another, to identify them as Hospira
employees.11
On March 3, 2005, petitioner Maria Olivia T. Yabut-Misa
(Misa), AbbottÊs Human Resources (HR) Director, sent
Alcaraz an e-mail which contained an explanation of the
procedure for evaluating the performance of probationary
employees and further indicated that Abbott had only one
evaluation system for all of its employees. Alcaraz was also
given copies of AbbottÊs Code of Conduct and Probationary
Performance Standards and Evaluation (PPSE) and
Performance Excellence Orientation Modules (Performance
Modules) which she had to apply in line with her task of
evaluating the Hospira ALSU staff.12
AbbottÊs PPSE procedure mandates that the job
performance of a probationary employee should be formally
reviewed and discussed with the employee at least twice:
first on the third month and second on the fifth month from
the date of employment. The necessary Performance
Improvement Plan should also be made during the third-
month review in case of a gap between the employeeÊs
performance and the standards set. These performance
standards should be discussed in detail with the employee
within the first two (2) weeks on the job. It was equally
required that a signed copy of the PPSE form must be
submitted to AbbottÊs Human Resources Department
(HRD) and shall serve as documentation of the employeeÊs
performance during his/her probationary period.
_______________
11 Id., at pp. 127-128.
12 Id., at pp. 1042-1043.
696

This shall form the basis for recommending the

confirmation or termination of the probationary
employment.13
During the course of her employment, Alcaraz noticed
that some of the staff had disciplinary problems. Thus, she
would reprimand them for their unprofessional behavior
such as non-observance of the dress code, moonlighting,
and disrespect of Abbott officers. However, AlcarazÊs
method of management was considered by Walsh to be „too
strict.‰14 Alcaraz approached Misa to discuss these
concerns and was told to „lie low‰ and let Walsh handle the
matter. Misa even assured her that AbbottÊs HRD would
support her in all her management decisions.15
On April 12, 2005, Alcaraz received an e-mail from Misa
requesting immediate action on the staff Ês performance
evaluation as their probationary periods were about to end.
This Alcaraz eventually submitted.16
On April 20, 2005, Alcaraz had a meeting with
petitioner Cecille Terrible (Terrible), AbbottÊs former HR
Director, to discuss certain issues regarding staff
performance standards. In the course thereof, Alcaraz
accidentally saw a printed copy of an e-mail sent by Walsh
to some staff members which essentially contained queries
regarding the formerÊs job performance. Alcaraz asked if
WalshÊs action was the normal process of evaluation.
Terrible said that it was not.17
On May 16, 2005, Alcaraz was called to a meeting with
Walsh and Terrible where she was informed that she failed
to meet the regularization standards for the position of
Regulatory Affairs Manager.18 Thereafter, Walsh and
Terrible requested Alcaraz to tender her resignation, else
they be forced
_______________
13 Id.
14 Id., at p. 1044.
15 Id.
16 Id.
17 Id., at pp. 1044-1045.
18 Id., at p. 1045.
697
VOL. 701, JULY 23, 2013 697

to terminate her services. She was also told that,

regardless of her choice, she should no longer report for
work and was asked to surrender her office identification
cards. She requested to be given one week to decide on the
same, but to no avail.19
On May 17, 2005, Alcaraz told her administrative
assistant, Claude Gonzales (Gonzales), that she would be
on leave for that day. However, Gonzales told her that
Walsh and Terrible already announced to the whole
Hospira ALSU staff that Alcaraz already resigned due to
health reasons.20
On May 23, 2005, Walsh, Almazar, and Bernardo
personally handed to Alcaraz a letter stating that her
services had been terminated effective May 19, 2005.21 The
letter detailed the reasons for AlcarazÊs termination ·
particularly, that Alcaraz: (a) did not manage her time
effectively; (b) failed to gain the trust of her staff and to
build an effective rapport with them; (c) failed to train her
staff effectively; and (d) was not able to obtain the
knowledge and ability to make sound judgments on case
processing and article review which were necessary for the
proper performance of her duties.22 On May 27, 2005,
Alcaraz received another copy of the said termination letter
via registered mail.23
Alcaraz felt that she was unjustly terminated from her
employment and thus, filed a complaint for illegal
dismissal and damages against Abbott and its officers,
namely, Misa, Bernardo, Almazar, Walsh, Terrible, and
Feist.24 She claimed that she should have already been
considered as a regular and not a probationary employee
given AbbottÊs failure to
_______________
19 Id.
20 Id., at p. 1046.
21 Id., at p. 1047.
22 Id., at pp. 19-21, 78, and 80-81.
23 Id., at p. 1047.
24 Id., at p. 255. See Labor Arbiter (LA) Decision dated March 30,
2006.
698

inform her of the reasonable standards for her

regularization upon her engagement as required under
Article 29525 of the Labor Code. In this relation, she
contended that while her employment contract stated that
she was to be engaged on a probationary status, the same
did not indicate the standards on which her regularization
would be based.26 She further averred that the individual
petitioners maliciously connived to illegally dismiss her
when: (a) they threatened her with termination; (b) she
was ordered not to enter company premises even if she was
still an employee thereof; and (c) they publicly announced
that she already resigned in order to humiliate her.27
On the contrary, petitioners maintained that Alcaraz
was validly terminated from her probationary employment
given her failure to satisfy the prescribed standards for her
regularization which were made known to her at the time
of her engagement.28
The LA Ruling
In a Decision dated March 30, 2006,29 the LA dismissed
AlcarazÊs complaint for lack of merit.
The LA rejected AlcarazÊs argument that she was not
informed of the reasonable standards to qualify as a
regular employee considering her admissions that she was
briefed by Almazar on her work during her preemployment
orientation meeting30 and that she received copies of
AbbottÊs Code of Conduct and Performance Modules which
were used for
_______________
25 Formerly, Article 281 of the Labor Code; renumbered pursuant to
Republic Act No. 10151.
26 Rollo (G.R. No. 192571), p. 267.
27 Id., at pp. 261-262.
28 Id., at pp. 263-267.
29 Id., at pp. 255-274. Penned by Labor Arbiter Jovencio Ll. Mayor, Jr.
30 Id., at p. 269.
699
VOL. 701, JULY 23, 2013 699

evaluating all types of Abbott employees.31 As Alcaraz was

unable to meet the standards set by Abbott as per her
performance evaluation, the LA ruled that the termination
of her probationary employment was justified.32 Lastly, the
LA found that there was no evidence to conclude that
AbbottÊs officers and employees acted in bad faith in
terminating AlcarazÊs employment.33
Displeased with the LAÊs ruling, Alcaraz filed an appeal
with the National Labor Relations Commission (NLRC).
The NLRC Ruling
On September 15, 2006, the NLRC rendered a
Decision,34 annulling and setting aside the LAÊs ruling, the
dispositive portion of which reads:
WHEREFORE, the Decision of the Labor Arbiter dated 31

March 2006 [sic] is hereby reversed, annulled and set aside
and judgment is hereby rendered:
1. Finding respondents Abbot [sic] and individual
respondents to have committed illegal dismissal;
2. Respondents are ordered to immediately reinstate
complainant to her former position without loss of seniority
rights immediately upon receipt hereof;
3. To jointly and severally pay complainant backwages
computed from 16 May 2005 until finality of this decision. As
of the date hereof the backwages is computed at
a. Backwages for 15 months - PhP 1,650,000.00
_______________
31 Id., at p. 270.
32 Id., at pp. 271-272.
33 Id., at p. 273.
34 Id., at pp. 356-378. Penned by Commissioner Romeo L. Go, with
Commissioners Benedicto Ernesto R. Bitonio, Jr. (on leave) and Perlita B.
Velasco, concurring.
700

b. 13th month pay - 110,000.00

TOTAL PhP 1,760,000.00
4. Respondents are ordered to pay complainant moral
damages of P50,000.00 and exemplary damages of
P50,000.00.
5. Respondents are also ordered to pay attorneyÊs fees of
10% of the total award.
6. All other claims are dismissed for lack of merit.
SO ORDERED.35
The NLRC reversed the findings of the LA and ruled

that there was no evidence showing that Alcaraz had been
apprised of her probationary status and the requirements
which she should have complied with in order to be a
regular employee.36 It held that AlcarazÊs receipt of her job
description and AbbottÊs Code of Conduct and Performance
Modules was not equivalent to her being actually informed
of the performance standards upon which she should have
been evaluated on.37 It further observed that Abbott did not
comply with its own standard operating procedure in
evaluating probationary employees.38 The NLRC was also
not convinced that Alcaraz was terminated for a valid
cause given that petitionersÊ allegation of AlcarazÊs „poor
performance‰ remained unsubstantiated.39
Petitioners filed a motion for reconsideration which was
denied by the NLRC in a Resolution dated July 31, 2007.40
_______________
35 Id., at pp. 377-378.
36 Id., at p. 367.
37 Id., at p. 368.
38 Id., at p. 369.
39 Id., at pp. 370-373.
40 Id., at pp. 413-416. Penned by Commissioner Romeo L. Go, with
Presiding Commissioner Gerardo C. Nograles and Commissioner Perlita
B. Velasco, concurring.
701
VOL. 701, JULY 23, 2013 701

Aggrieved, petitioners filed with the CA a Petition for

Certiorari with Prayer for Issuance of a Temporary
Restraining Order and/or Writ of Preliminary Injunction,
docketed as CA G.R. SP No. 101045 (First CA Petition),
alleging grave abuse of discretion on the part of NLRC
when it ruled that Alcaraz was illegally dismissed.41
Pending resolution of the First CA Petition, Alcaraz
moved for the execution of the NLRCÊs Decision before the
LA, which petitioners strongly opposed. The LA denied the
said motion in an Order dated July 8, 2008 which was,
however, eventually reversed on appeal by the NLRC.42
Due to the foregoing, petitioners filed another Petition for
Certiorari with the CA, docketed as CA G.R. SP No.
111318 (Second CA Petition), assailing the propriety of the
execution of the NLRC decision.43
The CA Ruling
With regard to the First CA Petition, the CA, in a
Decision44 dated December 10, 2009, affirmed the ruling of
the NLRC and held that the latter did not commit any
grave abuse of discretion in finding that Alcaraz was
illegally dismissed.
It observed that Alcaraz was not apprised at the start of
her employment of the reasonable standards under which
she could qualify as a regular employee.45 This was based
on its examination of the employment contract which
showed that the same did not contain any standard of
performance or any stipulation that Alcaraz shall undergo
a performance evaluation before she could qualify as a
regular employee.46 It also
_______________
41 Id., at pp. 417-450.
42 Id., at p. 1403.
43 Id.
44 Id., at pp. 1040-1054.
45 Id., at p. 1052.
46 Id.
702

found that Abbott was unable to prove that there was any
reasonable ground to terminate AlcarazÊs employment.47
Abbott moved for the reconsideration of the aforementioned
ruling which was, however, denied by the CA in a
Resolution48 dated June 9, 2010.
The CA likewise denied the Second CA Petition in a
Resolution dated May 18, 2010 (May 18, 2010 Resolution)
and ruled that the NLRC was correct in upholding the
execution of the NLRC Decision.49 Thus, petitioners filed a
motion for reconsideration.
While the petitionersÊ motion for reconsideration of the
CAÊs May 18, 2010 Resolution was pending, Alcaraz again
moved for the issuance of a writ of execution before the LA.
On June 7, 2010, petitioners received the LAÊs order
granting AlcarazÊs motion for execution which they in turn
appealed to the NLRC · through a Memorandum of
Appeal dated June 16, 2010 (June 16, 2010 Memorandum
of Appeal) · on the ground that the implementation of the
LAÊs order would render its motion for reconsideration moot
and academic.50
Meanwhile, petitionersÊ motion for reconsideration of the
CAÊs May 18, 2010 Resolution in the Second CA Petition
was denied via a Resolution dated October 4, 2010.51 This
attained finality on January 10, 2011 for petitionersÊ failure
to timely appeal the same.52 Hence, as it stands, only the
issues in the First CA petition are left to be resolved.
Incidentally, in her Comment dated November 15, 2010,
Alcaraz also alleges that petitioners were guilty of forum
shopping when they filed the Second CA Petition pending
the resolution of their motion for reconsideration of the
CAÊs De-
_______________
47 Id., at p. 1053.
48 Id., at pp. 1139-1140.
49 Id., at p. 1218.
50 Id.
51 Id., at p. 1219.
52 Rollo (G.R. No. 193976), p. 30.
703
VOL. 701, JULY 23, 2013 703

cember 10, 2009 Decision i.e., the decision in the First CA

Petition.53 She also contends that petitioners have not
complied with the certification requirement under Section
5, Rule 7 of the Rules of Court when they failed to disclose
in the instant petition the filing of the June 16, 2010
Memorandum of Appeal filed before the NLRC.54
The Issues Before the Court
The following issues have been raised for the CourtÊs
resolution: (a) whether or not petitioners are guilty of
forum shopping and have violated the certification
requirement under Section 5, Rule 7 of the Rules of Court;
(b) whether or not Alcaraz was sufficiently informed of the
reasonable standards to qualify her as a regular employee;
(c) whether or not Alcaraz was validly terminated from her
employment; and (d) whether or not the individual
petitioners herein are liable.
The CourtÊs Ruling
A. Forum Shopping and Violation
of Section 5, Rule 7 of the Rules
of Court.
At the outset, it is noteworthy to mention that the
prohibition against forum shopping is different from a
violation of the certification requirement under Section 5,
Rule 7 of the Rules of Court. In Sps. Ong v. CA,55 the Court
explained that:
x x x The distinction between the prohibition against

forum shopping and the certification requirement should by
now be too elementary to be misunderstood. To reiterate,
compliance with the certification against forum
_______________
53 Rollo (G.R. No. 192571), pp. 1223-1228.
54 Id., at p. 1224.
55 433 Phil. 490, 501-502; 384 SCRA 139, 148 (2002).
704

shopping is separate from and independent of the avoidance

of the act of forum shopping itself. There is a difference in the
treatment between failure to comply with the certification
requirement and violation of the prohibition against forum
shopping not only in terms of imposable sanctions but also in
the manner of enforcing them. The former constitutes
sufficient cause for the dismissal without prejudice [to the
filing] of the complaint or initiatory pleading upon motion
and after hearing, while the latter is a ground for summary
dismissal thereof and for direct contempt. x x x.56
As to the first, forum shopping takes place when a

litigant files multiple suits involving the same parties,
either simultaneously or successively, to secure a favorable
judgment. It exists where the elements of litis pendentia
are present, namely: (a) identity of parties, or at least such
parties who represent the same interests in both actions;
(b) identity of rights asserted and relief prayed for, the
relief being founded on the same facts; and (c) the identity
with respect to the two preceding particulars in the two (2)
cases is such that any judgment that may be rendered in
the pending case, regardless of which party is successful,
would amount to res judicata in the other case.57
In this case, records show that, except for the element of
identity of parties, the elements of forum shopping do not
exist. Evidently, the First CA Petition was instituted to
question the ruling of the NLRC that Alcaraz was illegally
dismissed. On the other hand, the Second CA Petition
pertains to the propriety of the enforcement of the
judgment award pending the resolution of the First CA
Petition and the finality of the decision in the labor dispute
between Alcaraz and
_______________
56 Id., at pp. 501-502; p. 148. (Citations omitted)
57 Republic v. Mangotara, G.R. Nos. 170375, 170505, 173355-56,
173401, 173563-64, 178779 & 178894, July 7, 2010, 624 SCRA 360, 428,
citing NBI-Microsoft Corporation v. Hwang, 499 Phil. 423, 435-436; 460
SCRA 428, 440-441 (2005).
705
VOL. 701, JULY 23, 2013 705

the petitioners. Based on the foregoing, a judgment in the

Second CA Petition will not constitute res judicata insofar
as the First CA Petition is concerned. Thus, considering
that the two petitions clearly cover different subject
matters and causes of action, there exists no forum
shopping.
As to the second, Alcaraz further imputes that the
petitioners violated the certification requirement under
Section 5, Rule 7 of the Rules of Court58 by not disclosing
the fact that it filed the June 16, 2010 Memorandum of
Appeal before the NLRC in the instant petition.
In this regard, Section 5(b), Rule 7 of the Rules of Court
requires that a plaintiff who files a case should provide a
complete statement of the present status of any pending
case if the latter involves the same issues as the one that
was filed. If there is no such similar pending case, Section
5(a) of the same rule provides that the plaintiff is obliged to
declare under oath that to the best of his knowledge, no
such other action or claim is pending.
Records show that the issues raised in the instant
petition and those in the June 16, 2010 Memorandum of
Appeal filed with the NLRC likewise cover different subject
matters and causes of action. In this case, the validity of
AlcarazÊs dis-
_______________
58 Sec. 5. Certification against forum shopping.·The plaintiff or
principal party shall certify under oath in the complaint or other
initiatory pleading asserting a claim for relief, or in a sworn certification
annexed thereto and simultaneously filed therewith: (a) that he has not
theretofore commenced any action or filed any claim involving the same
issues in any court, tribunal or quasi-judicial agency and, to the best of
his knowledge, no such other action or claim is pending therein; (b) if
there is such other pending action or claim, a complete statement of the
present status thereof; and (c) if he should thereafter learn that the same
or similar action or claim has been filed or is pending, he shall report
that fact within five (5) days therefrom to the court wherein his aforesaid
complaint or initiatory pleading has been filed.
xxxx
706

missal is at issue whereas in the said Memorandum of
Appeal, the propriety of the issuance of a writ of execution
was in question. Thus, given the dissimilar issues,
petitioners did not have to disclose in the present petition
the filing of their June 16, 2010 Memorandum of Appeal
with the NLRC. In any event, considering that the issue on
the propriety of the issuance of a writ of execution had been
resolved in the Second CA Petition · which in fact had
already attained finality · the matter of disclosing the
June 16, 2010 Memorandum of Appeal is now moot and
academic.
Having settled the foregoing procedural matter, the
Court now proceeds to resolve the substantive issues.
B. Probationary employment;
grounds for termination.
A probationary employee, like a regular employee,
enjoys security of tenure. However, in cases of probationary
employment, aside from just or authorized causes of
termination, an additional ground is provided under Article
295 of the Labor Code, i.e., the probationary employee may
also be terminated for failure to qualify as a regular
employee in accordance with the reasonable standards
made known by the employer to the employee at the time of
the engagement.59 Thus, the services of an employee who
has been engaged on probationary basis may be terminated
for any of the following: (a) a just or (b) an authorized
cause; and (c) when he fails to qualify as a regular
employee in accordance with reasonable standards
prescribed by the employer.60
Corollary thereto, Section 6(d), Rule I, Book VI of the
Implementing Rules of the Labor Code provides that if the
employer fails to inform the probationary employee of the
rea-
_______________
59 Robinsons Galleria/Robinsons Supermarket Corporation v.
Ranchez, G.R. No. 177937, January 19, 2011, 640 SCRA 135, 142.
60 Id.
707
VOL. 701, JULY 23, 2013 707

sonable standards upon which the regularization would be

based on at the time of the engagement, then the said
employee shall be deemed a regular employee, viz.:
(d) In all cases of probationary employment, the employer

shall make known to the employee the standards under
which he will qualify as a regular employee at the time of his
engagement. Where no standards are made known to the
employee at that time, he shall be deemed a regular
employee.
In other words, the employer is made to comply with two

(2) requirements when dealing with a probationary
employee: first, the employer must communicate the
regularization standards to the probationary employee; and
second, the employer must make such communication at
the time of the probationary employeeÊs engagement. If the
employer fails to comply with either, the employee is
deemed as a regular and not a probationary employee.
Keeping with these rules, an employer is deemed to have
made known the standards that would qualify a
probationary employee to be a regular employee when it
has exerted reasonable efforts to apprise the employee of
what he is expected to do or accomplish during the trial
period of probation. This goes without saying that the
employee is sufficiently made aware of his probationary
status as well as the length of time of the probation.
The exception to the foregoing is when the job is self-
descriptive in nature, for instance, in the case of maids,
cooks, drivers, or messengers.61 Also, in Aberdeen Court,
Inc. v. Agustin,62 it has been held that the rule on notifying
a probationary employee of the standards of regularization
should not be used to exculpate an employee who acts in a
manner contrary to basic knowledge and common sense in
regard to
_______________
61 Id., at p. 145.
62 495 Phil. 706, 716-717; 456 SCRA 32, 43 (2005).
708

which there is no need to spell out a policy or standard to

be met. In the same light, an employeeÊs failure to perform
the duties and responsibilities which have been clearly
made known to him constitutes a justifiable basis for a
probationary employeeÊs nonregularization.
In this case, petitioners contend that Alcaraz was
terminated because she failed to qualify as a regular
employee according to AbbottÊs standards which were made
known to her at the time of her engagement. Contrarily,
Alcaraz claims that Abbott never apprised her of these
standards and thus, maintains that she is a regular and
not a mere probationary employee.
The Court finds petitionersÊ assertions to be well-taken.
A punctilious examination of the records reveals that
Abbott had indeed complied with the above-stated
requirements. This conclusion is largely impelled by the
fact that Abbott clearly conveyed to Alcaraz her duties and
responsibilities as Regulatory Affairs Manager prior to,
during the time of her engagement, and the incipient
stages of her employment. On this score, the Court finds it
apt to detail not only the incidents which point out to the
efforts made by Abbott but also those circumstances which
would show that Alcaraz was well-apprised of her
employerÊs expectations that would, in turn, determine her
regularization:
(a) On June 27, 2004, Abbott caused the publication in
a major broadsheet newspaper of its need for a Regulatory
Affairs Manager, indicating therein the job description for
as well as the duties and responsibilities attendant to the
aforesaid position; this prompted Alcaraz to submit her
application to Abbott on October 4, 2004;
(b) In AbbottÊs December 7, 2004 offer sheet, it was
stated that Alcaraz was to be employed on a probationary
status;
(c) On February 12, 2005, Alcaraz signed an
employment contract which specifically stated, inter alia,
that she was to
709
VOL. 701, JULY 23, 2013 709

be placed on probation for a period of six (6) months

beginning February 15, 2005 to August 14, 2005;
(d) On the day Alcaraz accepted AbbottÊs employment
offer, Bernardo sent her copies of AbbottÊs organizational
structure and her job description through e-mail;
(e) Alcaraz was made to undergo a pre-employment
orientation where Almazar informed her that she had to
implement AbbottÊs Code of Conduct and office policies on
human resources and finance and that she would be
reporting directly to Walsh;
(f) Alcaraz was also required to undergo a training
program as part of her orientation;
(g) Alcaraz received copies of AbbottÊs Code of Conduct
and Performance Modules from Misa who explained to her
the procedure for evaluating the performance of
probationary employees; she was further notified that
Abbott had only one evaluation system for all of its
employees; and
(h) Moreover, Alcaraz had previously worked for
another pharmaceutical company and had admitted to
have an „extensive training and background‰ to acquire the
necessary skills for her job.63
Considering the totality of the above-stated
circumstances, it cannot, therefore, be doubted that Alcaraz
was well-aware that her regularization would depend on
her ability and capacity to fulfill the requirements of her
position as Regulatory Affairs Manager and that her
failure to perform such would give Abbott a valid cause to
terminate her probationary employment.
Verily, basic knowledge and common sense dictate that
the adequate performance of oneÊs duties is, by and of itself,
an inherent and implied standard for a probationary
employee to be regularized; such is a regularization
standard which need
_______________
63 Rollo (G.R. No. 192571), p. 1201.
710
not be literally spelled out or mapped into technical

indicators in every case. In this regard, it must be observed
that the assessment of adequate duty performance is in the
nature of a management prerogative which when
reasonably exercised · as Abbott did in this case · should
be respected. This is especially true of a managerial
employee like Alcaraz who was tasked with the vital
responsibility of handling the personnel and important
matters of her department.
In fine, the Court rules that AlcarazÊs status as a
probationary employee and her consequent dismissal must
stand. Consequently, in holding that Alcaraz was illegally
dismissed due to her status as a regular and not a
probationary employee, the Court finds that the NLRC
committed a grave abuse of discretion.
To elucidate, records show that the NLRC based its
decision on the premise that AlcarazÊs receipt of her job
description and AbbottÊs Code of Conduct and Performance
Modules was not equivalent to being actually informed of
the performance standards upon which she should have
been evaluated on.64 It, however, overlooked the legal
implication of the other attendant circumstances as
detailed herein which should have warranted a contrary
finding that Alcaraz was indeed a probationary and not a
regular employee · more particularly the fact that she was
well-aware of her duties and responsibilities and that her
failure to adequately perform the same would lead to her
non-regularization and eventually, her termination.
Accordingly, by affirming the NLRCÊs pronouncement
which is tainted with grave abuse of discretion, the CA
committed a reversible error which, perforce, necessitates
the reversal of its decision.
_______________
64 Id., at pp. 367-368, 370.
711
VOL. 701, JULY 23, 2013 711

C. Probationary employment;
termination procedure.
A different procedure is applied when terminating a
probationary employee; the usual two-notice rule does not
govern.65
_______________
65 Refers to the procedure stated in Article 291(b) of the Labor Code,
as renumbered pursuant to Republic Act No. 10151, viz.:
Article 291. Miscellaneous Provisions.·
xxxx
(b) Subject to the constitutional right of workers to security of
tenure and their right to be protected against dismissal except for a just
and authorized cause and without prejudice to the requirement of notice
under Article 283 of this Code, the employer shall furnish the worker
whose employment is sought to be terminated a written notice containing
a statement of the cause for termination and shall afford the latter ample
opportunity to be heard and to defend himself with the assistance of his
representative if he so desires in accordance with company rules and
regulations promulgated pursuant to guidelines set by the Department of
Labor and Employment.
xxxx
This procedure is also found in Section 2(d), Rule I, Book VI of the
Omnibus Rules Implementing the Labor Code which state:
xxxx
(d) In all cases of termination of employment, the following
standards of due process shall be substantially observed:
For termination of employment based on just causes as defined in
Article 282 [now, Article 296] of the Labor Code:
(i) A written notice served on the employee specifying the
ground or grounds for termination, and giving said
employee reasonable opportunity within which to explain
his side.
(ii) A hearing or conference during which the employee
concerned, with the assistance of counsel if he so desires is
given opportunity to respond to the charge, present his
evidence, or rebut the evidence presented against him.
(iii) A written notice of termination served on the
employee, indicating that upon due consideration of all the
712

Section 2, Rule I, Book VI of the Implementing Rules of the

Labor Code states that „[i]f the termination is brought
about by the x x x failure of an employee to meet the
standards of the employer in case of probationary
employment, it shall be sufficient that a written notice is
served the employee, within a reasonable time from the
effective date of termination.‰
As the records show, AlcarazÊs dismissal was effected
through a letter dated May 19, 2005 which she received on
May 23, 2005 and again on May 27, 2005. Stated therein
were the reasons for her termination, i.e., that after proper
evaluation, Abbott determined that she failed to meet the
reasonable standards for her regularization considering her
lack of time and people management and decision-making
skills, which are necessary in the performance of her
functions as Regulatory Affairs Manager.66 Undeniably,
this written notice sufficiently meets the criteria set forth
above, thereby legitimizing the cause and manner of
AlcarazÊs dismissal as a probationary employee under the
parameters set by the Labor Code.67
D. EmployerÊs violation of company
policy and procedure.
Nonetheless, despite the existence of a sufficient ground
to terminate AlcarazÊs employment and AbbottÊs
compliance with the Labor Code termination procedure, it
is readily apparent that Abbott breached its contractual
obligation to Alcaraz when it failed to abide by its own
procedure in evaluating the performance of a probationary
employee.
Veritably, a company policy partakes of the nature of an
implied contract between the employer and employee. In
Parts Depot, Inc. v. Beiswenger,68 it has been held that:
_______________
circumstances, grounds have been established to justify his
termination.
66 Rollo, pp. 78-81.
67 Id., at p. 1047.
68 170 S.W.3d 354 (Ky. 2005).
713
VOL. 701, JULY 23, 2013 713

[E]mployer statements of policy . . . can give rise to

contractual rights in employees without evidence that the
parties mutually agreed that the policy statements would
create contractual rights in the employee, and, hence,
although the statement of policy is signed by neither party,
can be unilaterally amended by the employer without notice
to the employee, and contains no reference to a specific
employee, his job description or compensation, and although
no reference was made to the policy statement in pre-
employment interviews and the employee does not learn of its
existence until after his hiring. Toussaint, 292 N.W.2d at 892.
The principle is akin to estoppel. Once an employer
establishes an express personnel policy and the
employee continues to work while the policy remains
in effect, the policy is deemed an implied contract for
so long as it remains in effect. If the employer
unilaterally changes the policy, the terms of the
implied contract are also thereby changed. (Emphasis
and underscoring supplied.)
Hence, given such nature, company personnel policies

create an obligation on the part of both the employee and
the employer to abide by the same.
Records show that AbbottÊs PPSE procedure mandates,
inter alia, that the job performance of a probationary
employee should be formally reviewed and discussed with
the employee at least twice: first on the third month and
second on the fifth month from the date of employment.
Abbott is also required to come up with a Performance
Improvement Plan during the third month review to bridge
the gap between the employeeÊs performance and the
standards set, if any.69 In addition, a signed copy of the
PPSE form should be submitted to AbbottÊs HRD as the
same would serve as basis for recommending the
confirmation or termination of the probationary
employment.70
_______________
69 Rollo (G.R. No. 192571), p. 1052.
70 Id., at p. 1043.
714

In this case, it is apparent that Abbott failed to follow

the above-stated procedure in evaluating Alcaraz. For one,
there lies a hiatus of evidence that a signed copy of
AlcarazÊs PPSE form was submitted to the HRD. It was not
even shown that a PPSE form was completed to formally
assess her performance. Neither was the performance
evaluation discussed with her during the third and fifth
months of her employment. Nor did Abbott come up with
the necessary Performance Improvement Plan to properly
gauge AlcarazÊs performance with the set company
standards.
While it is AbbottÊs management prerogative to
promulgate its own company rules and even subsequently
amend them, this right equally demands that when it does
create its own policies and thereafter notify its employee of
the same, it accords upon itself the obligation to faithfully
implement them. Indeed, a contrary interpretation would
entail a disharmonious relationship in the work place for
the laborer should never be mired by the uncertainty of
flimsy rules in which the latterÊs labor rights and duties
would, to some extent, depend.
In this light, while there lies due cause to terminate
AlcarazÊs probationary employment for her failure to meet
the standards required for her regularization, and while it
must be further pointed out that Abbott had satisfied its
statutory duty to serve a written notice of termination, the
fact that it violated its own company procedure renders the
termination of AlcarazÊs employment procedurally infirm,
warranting the payment of nominal damages. A further
exposition is apropos.
Case law has settled that an employer who terminates
an employee for a valid cause but does so through invalid
procedure is liable to pay the latter nominal damages.
In Agabon v. NLRC (Agabon),71 the Court pronounced
that where the dismissal is for a just cause, the lack of
statutory
_______________
71 G.R. No. 158693, November 17, 2004, 442 SCRA 573.
715
VOL. 701, JULY 23, 2013 715

due process should not nullify the dismissal, or render it

illegal, or ineffectual. However, the employer should
indemnify the employee for the violation of his statutory
rights.72 Thus, in Agabon, the employer was ordered to pay
the employee nominal damages in the amount of
P30,000.00.73
Proceeding from the same ratio, the Court modified
Agabon in the case of Jaka Food Processing Corporation v.
Pacot (Jaka)74 where it created a distinction between
procedurally defective dismissals due to a just cause, on
one hand, and those due to an authorized cause, on the
other.
It was explained that if the dismissal is based on a just
cause under Article 282 of the Labor Code (now Article 296)
but the employer failed to comply with the notice
requirement, the sanction to be imposed upon him should
be tempered because the dismissal process was, in effect,
initiated by an act imputable to the employee; if the
dismissal is based on an authorized cause under Article
283 (now Article 297) but the employer failed to comply
with the notice requirement, the sanction should be stiffer
because the dismissal process was initiated by the
employerÊs exercise of his management prerogative.75
Hence, in Jaka, where the employee was dismissed for an
authorized cause of retrenchment76 · as
contradistinguished from the employee in Agabon who was
dismissed for a just cause of neglect of duty77 · the Court
ordered the employer to pay the employee nominal
damages at the higher amount of P50,000.00.
Evidently, the sanctions imposed in both Agabon and
Jaka proceed from the necessity to deter employers from
future
_______________
72 Id., at p. 616.
73 Id., at p. 620.
74 494 Phil. 114, 119-121; 454 SCRA 119, 125 (2005).
75 Id., at p. 121; p. 126.
76 Id., at p. 122; p. 127.
77 Supra note 71, at p. 605.
716

violations of the statutory due process rights of

employees.78 In similar regard, the Court deems it proper
to apply the same principle to the case at bar for the reason
that an employerÊs contractual breach of its own company
procedure · albeit not statutory in source · has the
parallel effect of violating the laborerÊs rights. Suffice it to
state, the contract is the law between the parties and thus,
breaches of the same impel recompense to vindicate a right
that has been violated. Consequently, while the Court is
wont to uphold the dismissal of Alcaraz because a valid
cause exists, the payment of nominal damages on account
of AbbottÊs contractual breach is warranted in accordance
with Article 2221 of the Civil Code.79
Anent the proper amount of damages to be awarded, the
Court observes that AlcarazÊs dismissal proceeded from her
failure to comply with the standards required for her
regularization. As such, it is undeniable that the dismissal
process was, in effect, initiated by an act imputable to the
employee, akin to dismissals due to just causes under
Article 296 of the Labor Code. Therefore, the Court deems
it appropriate to fix the amount of nominal damages at the
amount of P30,000.00, consistent with its rulings in both
Agabon and Jaka.
E. Liability of individual peti-
tioners as corporate officers.
It is hornbook principle that personal liability of
corporate directors, trustees or officers attaches only when:
(a) they assent to a patently unlawful act of the
corporation, or when they are guilty of bad faith or gross
negligence in directing its affairs, or when there is a
conflict of interest resulting in damages to the corporation,
its stockholders or other persons;
_______________
78 Id., at p. 617.
79 Article 2221. Nominal damages are adjudicated in order that a
right of the plaintiff, which has been violated or invaded by the
defendant, may be vindicated or recognized, and not for the purpose of
indemnifying the plaintiff for any loss suffered by him.
717
VOL. 701, JULY 23, 2013 717

(b) they consent to the issuance of watered down stocks or

when, having knowledge of such issuance, do not forthwith
file with the corporate secretary their written objection; (c)
they agree to hold themselves personally and solidarily
liable with the corporation; or (d) they are made by specific
provision of law personally answerable for their corporate
action.80
In this case, Alcaraz alleges that the individual
petitioners acted in bad faith with regard to the supposed
crude manner by which her probationary employment was
terminated and thus, should be held liable together with
Abbott. In the same vein, she further attributes the loss of
some of her remaining belongings to them.81
AlcarazÊs contention fails to persuade.
A judicious perusal of the records show that other than
her unfounded assertions on the matter, there is no
evidence to support the fact that the individual petitioners
herein, in their capacity as AbbottÊs officers and employees,
acted in bad faith or were motivated by ill will in
terminating AlcarazÊs services. The fact that Alcaraz was
made to resign and not allowed to enter the workplace does
not necessarily indicate bad faith on AbbottÊs part since a
sufficient ground existed for the latter to actually proceed
with her termination. On the alleged loss of her personal
belongings, records are bereft of any showing that the same
could be attributed to Abbott or any of its officers. It is a
well-settled rule that bad faith cannot be presumed and he
who alleges bad faith has the onus of proving it. All told,
since Alcaraz failed to prove any malicious act on the part
of Abbott or any of its officers, the Court finds the award of
moral or exemplary damages unwarranted.
WHEREFORE, the petition is GRANTED. The
Decision dated December 10, 2009 and Resolution dated
June 9, 2010
_______________
80 Carag v. NLRC, 548 Phil. 581, 605; 520 SCRA 28, 53 (2007), citing
McLeod v. NLRC, 541 Phil. 214, 242; 512 SCRA 222, 249 (2007).
81 Rollo (G.R. No. 192571), pp. 262, 1046.
718

of the Court of Appeals in CA-G.R. SP No. 101045 are

hereby REVERSED and SET ASIDE. Accordingly, the
Decision dated March 30, 2006 of the Labor Arbiter is
REINSTATED with the MODIFICATION that petitioner
Abbott Laboratories, Philippines be ORDERED to pay
respondent Pearlie Ann F. Alcaraz nominal damages in the
amount of P30,000.00 on account of its breach of its own
company procedure.
SO ORDERED.
Sereno (CJ.), Carpio, Velasco, Jr., Leonardo-De Castro,

Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez
and Reyes, JJ., concur.
Brion, J., See Dissent.
Mendoza, J., But concurs with J. Brion in his views on
the procedural aspect.
Leonen, J., I join J. Brion in his dissent.
DISSENTING OPINION
BRION, J.:
The Case
The case in caption was a Second Division illegal
dismissal case that the Court en banc accepted for decision
pursuant to Section 3, Rule 2 of the Internal Rules of the
Supreme Court.
A. The Issues Posed
The case posed two issues to the Court for resolution.
The first is the manner of review that the Court should
undertake. This is an issue that underlies all the CourtÊs
decision making in light of the various modes of review and
essentials that the Rules of Court require. The second and
core issue relates to the merits of the legality or illegality of
the dismissal: whether the Labor Code requirements
governing the
719
VOL. 701, JULY 23, 2013 719

dismissal of a probationary employee had been complied

with, considered from the prism of the mode of review and
the nature of the decision under review.
B. The Factual Highlights
To briefly summarize the highlights of the case, Abbott
Laboratories, Phils. (petitioner), Cecille A. Terrible, Edwin
D. Feist, Maria Olivia T. Yabut-Misa, Teresita C. Bernardo,
and Allan G. Almazar (individual petitioners) are the
employer and its senior officials who dismissed respondent
Pearlie Ann F. Alcaraz from employment within three (3)
months from her engagement. The respondent complained
against the petitioners on the ground that she had been
illegally dismissed: (1) she was not informed of the
standards that would govern her as a probationary
employee, as required by the law (the Labor Code) and its
implementing rules; (2) the petitioners even violated the
companyÊs own internal rules on the manner of dismissing
probationary employees; (3) substantively, her dismissal
was without the required just cause as required by the law
and the rules; and (4) her dismissal was done oppressively
and in bad faith.
C. The Rulings Below
The Labor Arbiter ruled that the dismissal had been
valid but the National Labor Relations Commission
(NLRC) reversed the Labor Arbiter; found the dismissal
illegal; and damages and attorneyÊs fees because of the
manner the dismissal was effected. The Court of Appeals
(CA) found no grave abuse of discretion and accordingly
denied the Rule 65 petition that the petitioner Abbott
brought.
D. The Current Court Rulings
The Ponencia. In the present Rule 45 petition for
review on certiorari before this Court, the ponencia
undertook a weighing of the evidence in light of her
own view of how
720

the evidence should be interpreted, and came out with

her own ruling for the grant of the petition.
This Dissent. I vote to dismiss the petition before us as
I agree with the decision of the CA that the NLRC did not
commit any grave abuse of discretion in concluding
that respondent had been illegally dismissed from
employment.
Discussion of the Issues
I. The Procedural Issue
A. The Preliminary Issue: Manner of Review
A labor case finds its way into the judicial system from
the NLRC whose decision is final and executory. Finality
simply means that the NLRC ruling is no longer
appealable; the legal intent is to confine adjudication of
labor cases to labor tribunals with the expertise in these
cases and thereby bring the resolution of the case to a close
at the soonest possible time.
When an administrative ruling (or any ruling for that
matter) is already final and unappealable, the only
recourse open under the Rules of Court is through a
limited review on jurisdictional grounds under Rule
65. This has been the mode of review followed since the
Labor Code took effect in November 1974; labor cases were
directly brought to this Court but only on jurisdictional
grounds under Rule 65.1
_______________
1 The following explanation was made in my Rejoinder to Reply (On
the manner of reviewing a Court of Appeals Labor Ruling) that was
submitted to the Court En Banc in the course of the exchanges on this
aspect of the case. The explanation distinguished between appealable
cases and those that, while not appealable, can still be reviewed through
a Rule 65 petition for certiorari.
„For a full understanding of these distinctions, it must be kept in mind
that several levels of review may exist for rulings emanating from the
lowest levels of adjudication before they reach the Supreme
721
VOL. 701, JULY 23, 2013 721

In 1998, the Court · in lieu of directly acting on labor

cases under Rule 65 of the Rules of Court · opted to
change the
_______________
Court. The ruling of an inferior court or tribunal (for example, the
Regional Trial Court [RTC]) is first reviewed by an appellate court (the
CA) on questions of fact or mixed questions of fact and law; the CA
decision may then in turn be reviewed by the Supreme Court under Rule
45.
Generally, two types of decisions or rulings may be brought to the
appellate courts for review and decision; the appellate courtsÊ decisions
are in turn subject to review by the Supreme Court.
The first type relates to cases that come to the appellate court by way
of appeal (e.g., the ruling of the RTC in the exercise of its original
jurisdiction that is appealed to the CA on issues of facts and law under
Rule 41 of the Rules of Court). The second type involves the review by
the CA of decisions of inferior courts or tribunals whose rulings, by law,
are final and executory (e.g., the ruling of the National Labor Relations
Commission [NLRC] that under the Labor Code is final and executory).
This is the review of rulings that, by law, is not appealable and thus
can only be made on limited jurisdictional grounds.
A CA ruling under the first type can be challenged by the aggrieved
party before the Supreme Court through a petition for review on
certiorari under Rule 45 of the Rules of Court. Under Rule 45, the review
is only on questions of law unless a review of questions of fact is allowed
under the terms established by jurisprudence. This is the case in the
example given above · an RTC ruling that is appealed to the CA on both
factual and legal grounds and which CA decision on appeal is now before
the Supreme Court for further review. This may be the model of a
Supreme Court review that the ponente might have had in mind in
asserting that the Supreme Court should be able to undertake a review of
the full range of legal issues before it.
In the second type as exemplified above, a ruling by the NLRC,
although final and executory, may be brought to the CA under Rule 65 of
the Rules of Court, i.e., on a petition for certiorari, limited to
jurisdictional grounds, usually for grave abuse of discretion amounting to
lack or excess of jurisdiction. The final and executory nature of the NLRC
decision under review can best be appreci-
722

procedure of review through its ruling in St. Martin

Funeral Homes, Inc. vs. National Labor Relations
Commission,2 taking into account the judicial hierarchy of
courts and the growing number of labor cases elevated to
the Supreme Court under Rule 65. The Court resolved that
the proper recourse from the NLRCÊs final and executory
ruling is to assail the ruling before the CA under Rule 65.
Thus, the unappealable character of the NLRC ruling (as
declared by substantive law) did not change; only the
process of review changed in terms of the court (from the
Supreme Court to the Court of Appeals) to which the labor
case can initially be brought.
From the CA ruling, a dissatisfied party has the option
to file an appeal with the Supreme Court through a
petition for review on certiorari under Rule 45 of the Rules
of Court. This mode of appeal limits the review to questions
of law.
B. Standard of Review of a Labor Case under Rule
45 of the Rules of Court
Montoya v. Transmed3the CourtMontoya
_______________
ated when it is considered that the decision can immediately be
implemented unless a temporary restraining order or injunction is issued
by the CA; the Rule 65 mode of review is rendered necessary because the
decision or ruling under review, by law, is already final. Finality1 means
that the decision is no longer appealable1 and may be reviewed only
when the ruling is void because of jurisdictional defects.‰
2 356 Phil. 811; 295 SCRA 494 (1998).
3 G.R. No. 183329, August 27, 2009, 597 SCRA 334.
723
VOL. 701, JULY 23, 2013 723
In a Rule 45 review, we consider the correctness of the

assailed CA decision, in contrast with the review for
jurisdictional error that we undertake under Rule 65.
Furthermore, Rule 45 limits us to the review of questions of
law raised against the assailed CA decision. In ruling for
legal correctness, we have to view the CA decision in the same
context that the petition for certiorari it ruled upon was
presented to it; we have to examine the CA decision from
the prism of whether it correctly determined the
presence or absence of grave abuse of discretion in the
NLRC decision before it, not on the basis of whether
the NLRC decision on the merits of the case was
correct. In other words, we have to be keenly aware that the
CA undertook a Rule 65 review, not a review on appeal, of the
NLRC decision challenged before it. This is the approach that
should be basic in a Rule 45 review of a CA ruling in a labor
case. In question form, the question to ask is: Did the
CA correctly determine whether the NLRC committed
grave abuse of discretion in ruling on the case?4
[emphases and italics supplied; citations omitted]
Thus, under the Rule 65 review by the CA, Montoya

reiterates that the sole ground or issue allowed is
jurisdictional · the presence or absence of grave abuse of
discretion on the part of the NLRC in ruling on the case. To
state the obvious, this kind of review would have made it
easier for the CA to handle the case; in the absence of a
grave abuse of discretion, it can dismiss labor cases for lack
of grave abuse of discretion as we do in this Court.
From the CA, further recourse is through a Rule 45
review by this Court on questions of law in accordance
with prevailing rulings. The office of a petition for review
on certiorari is not to examine and settle factual
questions already ruled upon below. In this review, the
Court simply determines whether the legal correctness of
the CAÊs finding that the
_______________
4 Id., at pp. 342-343.
724

NLRC ruling of illegal dismissal had basis in fact

and in law.
This manner of review is effectively a supervisory
review by the courts that bears two significant
characteristics: first, it respects the mandate of the law
that the decision below is final and is not for the courts to
review on appeal for its legal and factual merits; and
second, review by the courts (particularly by the Supreme
Court) in the exercise of their supervisory certiorari
jurisdiction is mandated no less than by the Constitution
and is intended to ensure that the deciding entity stayed
within the due bounds of its authority or jurisdiction.5
Specifically, in reviewing a CA labor ruling under Rule
45 of the Rules of Court, the CourtÊs review is limited to:
(1) Ascertaining the correctness of the CAÊs
decision in finding the presence or absence of a
grave abuse of discretion. This is done by examining, on
the basis of the partiesÊ presentations, whether the CA
correctly determined that at the NLRC level, all the
adduced pieces of evidence were considered; no evidence
which should not have been considered was considered; and
the evidence presented supports the NLRC findings; and
(2) Deciding any other jurisdictional error that
attended the CAÊs interpretation or application of the law.
In this kind of limited review, the Court avoids
reviewing a labor case by re-weighing the evidence or re-
evaluating its sufficiency; the task of weighing or
evaluation, as a rule, lies within the NLRCÊs jurisdiction as
an administrative appellate body.
If the NLRC ruling has basis in the evidence and the
applicable law and jurisprudence, then no grave abuse of
discretion exists and the CA should so declare and,
accordingly, dismiss the petition. If grave abuse of
discretion exists, then the CA
_______________
5 Rejoinder to Reply, supra, at Note 1.
725
VOL. 701, JULY 23, 2013 725

must grant the petition and nullify the NLRC ruling,

entering at the same time the ruling that is justified under
the evidence and the governing law, rules and
jurisprudence. In our Rule 45 review, this Court must deny
the petition if it finds that the CA correctly acted.
In the context of the present case, the CA found no
grave abuse of discretion committed by the NLRC;
hence, the CA dismissed the Rule 65 petition before it.
In our own ruling on the Rule 45 petition before us,
we should evaluate the petition in this light, not in
the manner that the ponencia did in concluding for
the grant of the petition and ruling in favor of the
petitioners.
By so doing, the ponencia undertook a factual appellate
review that laid the whole case open for the detailed
examination of every piece of evidence adduced in the case
and for the evaluation of the correctness of the application
of the law to the evidence found. This is a review that a
Rule 45 petition does not allow.
II. The Substantive Issues
A. The RespondentÊs Status of Employment
II.A.1. Standards to determine probationary
employment
While the respondent might have been hired as a
probationary employee, the petitionersÊ evidence did not
establish the employersÊ compliance with the
probationary employment requirements under Article
281 of the Labor Code (as amended) and Section 6(d)
of the Implementing Rules of Book VI, Rule I of the
Labor Code (as amended). Thus, the respondent should
be considered a regular employee and the case should be
reviewed on this basis.
726

Article 281 of the Labor Code, as amended, provides:
ART. 281. Probationary employment.·Probationary
employment shall not exceed six (6) months from the date the
employee started working, unless it is covered by an
apprenticeship agreement stipulating a longer period. The
services of an employee who has been engaged on a
probationary basis may be terminated for a just cause or
when he fails to qualify as a regular employee in accordance
with reasonable standards made known by the
employer to the employee at the time of his
engagement. An employee who is allowed to work after a
probationary period shall be considered a regular employee.
[italics supplied; emphasis ours]
Further, Section 6(d) of the Implementing Rules of Book

VI, Rule I of the Labor Code, as amended, states:
Sec. 6. Probationary employment.·There is probationary

employment where the employee, upon his engagement, is
made to undergo a trial period during which the employer
determines his fitness to qualify for regular employment,
based on reasonable standards made known to him at
the time of engagement. [emphasis supplied]
Probationary employment shall be governed by the
following rules:
xxxx
(d) In all cases of probationary employment, the
employer shall make known to the employee the
standards under which he will qualify as a regular
employee at the time of his engagement. Where no
standards are made known to the employee at that
time, he shall be deemed a regular employee. [emphases
ours; italics supplied]
To sum up these provisions, a valid probationary

employment requires the concurrence of two requirements.
First, the
727
VOL. 701, JULY 23, 2013 727
employer shall make known the reasonable standard

(performance standard) whose compliance will render the
employee qualified to be a regular employee. Second, the
employer shall inform the employee of the applicable
performance standard at the time of his/her
engagement. Failing in one or both, the employee, even if
initially hired as a probationary employee, should be
viewed and considered a regular employee.
The ponencia apparently fully agrees with the above
statement of the applicable law as it substantially recites
the same requirements, including the consequence that
upon failure to comply with these same requirements, „the
employee is deemed as a regular and not a probationary
employee.‰6 It continues, however, with a twist that
effectively negates what it has stated and admitted about
the need to communicate the regularization standards to
the employee, thus:
Keeping with these rules, an employees is deemed to have

made known the standards that would qualify a probationary
employee to be a regular employee when it has exerted
reasonable efforts to apprise the employee of what he is
expected to do to accomplish during the trial of probation.
This goes without saying that the employee is sufficiently
made aware of his probationary status as well as the length
of time of the probation.
The exception to the foregoing is when the job is self-
descriptive in nature, for instance, in the case of maids, cooks,
drivers, or messengers. Also in Aberdeen Court, Inc. v.
Agustin, it has been held that the rule on notifying a
probationary employee of the standards of regularization
should not be used to exculpate an employee in a manner
contrary to basic knowledge and common sense in regard to
which there is no need to spell out a policy or standard to be
met. In the same light, an employeeÊs failure to perform the
duties and responsibilities which have been clearly made
known to him consti-
6 Decision, at page 12.
728

tutes a justifiable basis for a probationary employeeÊs non-

regularization. [footnotes from the original, omitted]
Based on these premises, the ponencia then deftly

argues that because the duties and responsibilities of the
position have been explained to the respondent, an
experienced human resource specialist, she should have
known what was expected for her to attain regular status.
The ponenciaÊs reasoning, however, is badly flawed.
1st. The law and the rules require that there
performance standards communicated at the time of
engagement to the probationary employee. The
performance standards to be met are the employerÊs
specific expectations of how the probationary employee
should perform.
The ponencia impliedly admits that no performance
standards were expressly given but argues that because
the respondent had been informed of her duties and
responsibilities (a fact that was and is not disputed), she
should be deemed to know what was expected of her for
purposes of regularization.
This is a major flaw that the ponencia satisfies only via
an assumption. The ponencia apparently forgets that
knowledge of duties and responsibilities is different from
the measure of how these duties and responsibilities should
be delivered. They are separate elements and the latter
element is missing in the present case.
2nd. The ponencia glosses over the communication
aspect. Not only must there be express performance
standards (except in specific instances defined in the
implementing rules, discussed below); there must be
effective communication. If no standards were provided,
what would be communicated?
3rd. The ponencia badly contradicts itself in claiming
that actual communication of specific standards might not
be necessary „when the job is self-descriptive in nature, for
instance, in the case of maids, cooks, drivers, or
messengers.‰ The re-
729
VOL. 701, JULY 23, 2013 729

spondent, in the first place, was never a maid, cook, driver

or a messenger and cannot be placed under this
classification; she was hired and employed as a human
resources manager, in short, a managerial employee. Plain
and common sense reasoning by one who ever had been in
an employment situation dictates that the job of a
managerial employee cannot be self-explanatory, in the
way the ponencia implied; the complexity of a managerial
job must necessarily require that the level of performance
to be delivered must be specified and cannot simply be
assumed based on the communication of the managerÊs
duties and responsibilities.
4th. The ponencia also forgets that what these
„performance standards‰ or measures cannot simply be
assumed because they are critically important in this case,
or for that matter, in any case involving jobs whose duties
and responsibilities are not simple or self-descriptive. If the
respondent had been evaluated or assessed in the manner
that the companyÊs internal rules require, these standards
would have been the basis for her performance or lack of it.
Last but not the least, the respondentÊs services were
terminated on the basis of the performance standards that,
by law, the employer set or prescribed at the time of the
employeeÊs engagement. If none had been prescribed in the
first place, under what basis could the employee then be
assessed for purposes of termination or regularization?
From these preliminary take-off points in the
ponenciaÊs premises, it can already be discerned that
something is badly amiss and skewed in its
appreciation and review of the rulings of the NLRC
and the CA. It is an appreciation that goes beyond
what a determination of grave abuse of discretion
requires. It is an evaluation of the adduced evidence
based on externalities beyond the face value of the
presented evidence.
In this case, the ponencia simply disregarded the
plain import of the evidence or the lack of it, and
ventured into the realm of assumptions to justify its
de-
730

sired conclusions. In the mathematical realm of

problem solving, it appears to have started from the
conclusion and solved the problem backwards so
that the conclusion would fit into its stretched
reading of the evidence.
II.A.2. The respondent should be deemed a
regular employee
In the context of this case, an initial determination of
how the respondentÊs employment started and of her legal
status at that point is the best starting point in
determining the validity of her dismissal.
The respondent was indisputably initially hired as a
probationary employee. This is not a contested point. The
established facts and the applicable law, however, dictate
otherwise from the perspective of law as the petitioners
failed to show compliance with the two requirements
of Article 281 of the Labor Code (as amended) and of
Section 6(d) of the Implementing Rules of Book VI, Rule I
of the Labor Code (as amended).
This was what the NLRC found, leading the CA to
conclude that no grave abuse of discretion
intervened in the NLRCÊs ruling because its findings
were supported by the evidence on record and by
the correctly-chosen applicable law. In stark contrast,
the ponenciaÊs reading, although based on the same legal
premises, was based on shaky assumptions, not on the
hard evidence that the tribunals below appreciated.
II.A.2(a). No specific employment standard on
record.
As the NLRC found (and as confirmed by the CA), no
term or provision exists in the respondentÊs Employment
Contract7
_______________
7 Rollo, p. 174.
731
VOL. 701, JULY 23, 2013 731

relating to the performance standard that the

respondent was expected to observe. The Employment
Contract, duly presented as evidence, only proved the
terms and conditions of the respondentÊs employment as
therein indicated, i.e., the position title, the assigned
department, the status of employment, and the period of
employment. Beyond these, the Employment Contract did
not say anything more. To be sure, nothing more can be
extracted from this piece of evidence except the facts stated
and the inferences by implication from the expressly
disclosed information. Significantly, none of these can be
characterized or inferred by implication as performance
standards.
The best evidence of what the ponencia did when it saw
matters otherwise, is its own statement: its basis is not
what the submitted evidence state but on what she was
„largely impelled‰ to recognize. To quote the ponenciaÊs
own words:
A punctilious examination of the records reveals that

Abbott had indeed complied with the above requirements.
This conclusion is largely impelled by the fact that Abbott
clearly conveyed to Alcaraz her duties and
responsibilities as Regulatory Affairs Manager prior to,
during the time of her engagement, and the incipient states of
her employment. On this score, the Court finds it apt to detail
not only of the incidents which point out to the efforts made
by Abbott but also those circumstances which would show
that Alcaraz was well-apprised of her employerÊs expectations
that would, in turn determine her regularization:‰ [emphasis
supplied]
The petitionerÊs other pieces of evidence that the

ponencia cited and used to support its conclusion do not
and cannot, however, satisfy the requirement for
performance standards that must be communicated at the
time of engagement.
Specifically, these were the Offer Sheet dated
December 7, 2004, and the pre-employment orientation
on the respondentÊs duty to implement the petitionerÊs
Code of Conduct, office policies and training program.
732

The Offer Sheet was designed to inform the respondent

of the compensation and benefits package offered to her by
the petitioner and can in no way be read as a statement of
the applicable probationary employment standard.8 It was
communicated even prior to engagement when the parties
were negotiating, not at the point of engagement as the law
requires.
The pre-employment orientation on the respondentÊs
duty to implement the petitionerÊs Code of Conduct, office
policies and training program likewise cannot be
characterized as performance standards; they simply
related to activities aimed at acquainting and training the
respondent on her duties and not for the purpose of
informing her of the performance standards applicable to
her. What stands out is that they do not pertain
specifically to the respondent and the required
performance standard applicable for her
qualification for regular employment; they related to
the staff the respondent managed and supervised.
Additionally, these were all relayed prior to or after the
respondent was engaged by the petitioner.
An important distinction to remember at this point is
that the respondentÊs knowledge of the duties that her
work entailed, and her knowledge of the employerÊs
performance standard, are two distinct matters separately
requiring the presentation of independent proof.
The requirement of independent proof is found under
Article 281 of the Labor Code, as amended, and its
implementing rule that deem an employee to be regular if
he/she was not informed of the performance standard
for regularization. Independent proof is likewise
necessary as the law provides an additional ground for
terminating a probationary employment, i.e., when the
employee „fails to qualify as a
_______________
8Id. at p. 77.
733
VOL. 701, JULY 23, 2013 733

regular employee in accordance with the reasonable

standards made known by the employer[.]‰9
The performance standard contemplated in law may be
proven by evidence of how the employeeÊs performance was
intended to be or was, in fact, measured by the employer.
The performance standard may be in the form of a clear set
of the employerÊs expectations, or by a system of feedbacks
(e.g., comment cards) and document evaluation or
performance evaluation and appraisals conducted by the
employer.
These were the pieces of evidence that the NLRC,
as confirmed by the CA, did not see in the evidence or
in the petitionersÊ presented case. The ponencia,
unfortunately, glossed over these gaps and omissions in the
petitionersÊ case and chose to believe, even without
evidentiary basis that·
Considering the totality of the above-stated
circumstances, it cannot, therefore, be doubted that Alcaraz
was well-aware that her regularization would depend on her
ability and capacity to fulfill the requirements of her position
as Regulatory Affairs Manager and that her failure to
perform such would give Abbott a valid cause to terminate
her probationary employment. [emphasis supplied]
From this strained and stretched reading that magically

saw the required prescribed performance standards that ·
by the factual findings of the NLRC and the CA · never
existed, the ponencia went on to conclude:
Verily, basic knowledge and common sense dictate that the

adequate performance of oneÊs duties is, by and of itself, an
inherent and implied standard for a probationary employee to
be regularized; such is a regularization standard which need
not be literally spelled out or mapped into technical indicators
in every case. In this
_______________
9 See Article 281 of the Labor Code, as amended.
734

regard, it must be observed that the assessment of adequate

duty performance is in the nature of a management
prerogative which when reasonably exercised · as Abbott did
in this case · should be respected. This is especially true of a
managerial employee like Alcaraz who was tasked with the
vital responsibility of handling personnel and important
matters of her department.
This conclusion, of course, simply extends the magic by

using „basic knowledge and common sense‰ to dictate the
existence of „inherent and implied standards‰ of a
probationary employee, and even offers a view of
„management prerogative‰ that is unusual in the given
facts of this case. This approach eloquently exemplifies
what I mentioned above as the „solving backwards‰
approach that the ponencia used.
II.A.2(b). No specific performance standard
communicated to the respondent.
Complementing the requirement for the existence of
performance standards is the required communication of
the performance standard to the respondent. Again,
nothing in the records shows that the petitioner ever
communicated any performance standard to the
respondent.
The ponencia, in building up a case contrary to what the
NLRC and the CA found, cites the evidence the petitioners
point to · the respondentÊs receipt of copies of the
petitionerÊs Code of Conduct, Probationary Performance
Standards and Evaluation, and Performance Excellence
Orientation Modules. The NLRC and the CA, looking at
the same pieces of evidence, saw these in a different light
as they did not only examine the documents
themselves but went to the extent of examining and
appreciating the circumstances surrounding the
respondentÊs receipt of these documents.
The evidence on record suggests, as the respondent
directly testified to, that the cited documents were not
given to her for the purpose of complying with the
petitionerÊs obligation to
736

inform her of the performance standards applicable to her.

The documents were, in fact, given by the petitioner to
assist her in monitoring the employees assigned to
her department, i.e., as the documents she must rely
on in conducting the performance evaluations of the
staff assigned to her department. In short, the
respondent received the documents because they were
necessary in the discharge of her functions.
From the point of law, compliance with the first
requirement is not also satisfied by the petitionerÊs
assertion that the respondent knew that only one
performance standard applied to all employees. Notably,
the law requires proof that the employer specifically made
known to her the performance standards applicable to her
to enable her to qualify for regular employment. The
required communication must be an effective one if
the law were to be given meaningful substance, not a
mere perfunctory transmission of information.
Faced with these opposing claims, the CA apparently
weighed matters in the respondentÊs (and effectively in the
NLRCÊs) favor. In this situation of possible equipoise, the
CA did not rule incorrectly from the point of law when it
acted as it did.
Two factors tilt the balance in favor of the legal
correctness of the CAÊs ruling. The first is that the
respondentÊs position (found by the NLRC to be
meritorious) was not without any basis in fact and in
law. The second is from the latter perspective; Article 4 of
the Labor Code and established jurisprudence hold that
any doubt in a labor situation must be resolved in the
employeeÊs favor.
Thus, again, the ponenciaÊs case and its conclusion
must fail.
II.A.2(c). Performance standards and the
internal procedures for their
evaluation were not applied to the
respondent.
736

I can only agree with one aspect of the ponencia · its
admission that AbbottÊs internal procedures were not
applied to the respondent. I cannot dispute and I fully
agree with the following passages of the ponencia:
Records show that AbbottÊs PPSE procedure mandates,

inter alia, that the job performance of a probationary
employee should be formally reviewed and discussed with the
employee at least twice: first on the third month and second
on the fifth month from the date of employment. Abbott is
also required to come up with a Performance Improvement
Plan during the third month review to bridge the gap
between the employeeÊs performance and the standards set, if
any. In addition, a signed copy of the PPSE form should be
submitted to AbbottÊs HRD as the same would serve as basis
for recommending the confirmation or termination of the
probationary employment.
In this case, as it is apparent that Abbott failed to follow
the above-stated procedure in evaluating Alcaraz. For one,
there lies a hiatus of evidence that a signed copy of Alcaraz
PPSE form was submitted to the HRD. It was not even shown
that a PPSE form was completed to formally assess her
performance. Neither was the performance evaluation
discussed with her during the third and fifth months of her
employment. Nor did Abbott come up with the necessary
Performance Improvement Plan to properly gauge Alcaraz
performance with the set company standards.
While it is AbbottÊs management prerogative to
promulgate its own company rules and even subsequently
amend them, this right equally demands that when it does
create its own policies and thereafter notify its employees of
the same, it accords upon itself the obligation to faithfully
implement them. Indeed, a contrary interpretation would
entail a disharmonious relationship in the work place for the
laborer should never be mired by the uncertainty of flimsy
rules in which the latterÊs
737
VOL. 701, JULY 23, 2013 737

labor rights and duties would, to some extent, depend.10

[footnotes in the original omitted]
Internal processes, however, cannot be dissociated from

the substance that the processes seek to achieve. This is
the essence of due process. There is the requirement for
the observance of proper procedures, hand in hand with the
substance of what the law seeks – to level the playing field
between the all-powerful employer and the vulnerable
employee who lies at the mercy of the employer if he or she
can be dismissed on the basis of the latterÊs whim. This
attempt at leveling is the reason for the requirements for
duly disclosed performance standards and their
communication to the probationary employee at the very
beginning of the relationship. Reason, experience and
common sense dictate that the substance of the law carry
more weight than the process component so that any
violation of the substantive portion is a transgression that
mere obeisance to the process or the recognition of the
failure of process, cannot cure. From this perspective, the
laudable quotation above loses its luster.
Lusterless or otherwise, the ponenciaÊs admission of
AbbottÊs procedural inadequacies is not without
significance in terms of the present case as a whole.
Notably, the above quotation expressly and impliedly
admits that no effort at all was ever made for the conduct
of an assessment or evaluation of the respondentÊs
performance; in fact, no performance evaluation forms
appear to have been submitted by the company. The dearth
of evidence on this point (described by the ponencia as a
„hiatus of evidence‰) is completely consistent with what the
ponencia explicitly and impliedly admits from the very
beginning: there was no evidence of any performance
standard furnished the respondent so that the
ponencia could only deduce the existence of
performance standards from its assumptions and
stretched rationalizations; much less was there any
communica-
_______________
10 Decision, at pp. 16-17.
738

tion of performance standards qua performance

standards, as this is a matter that was also assumed.
I draw attention, too, to another unusual feature of this
case indicating, not only the omissions that the ponencia
already cited, but the implication as well that the
respondent had been singled out for special treatment by
the petitioner officers. At the very least, this incident
indicates that the petitioner did not apply the same
standards and processes to the respondentÊs work. The
petitionerÊs prescribed procedure was narrated in an earlier
version of the ponencia in this wise:
On April 20, 2005, Alcaraz had a meeting with petitioner

Cecille Terrible (Terrible), AbbottÊs former HR Director, to
discuss certain issues regarding staff performance standards.
In the course x x x thereof, Alcaraz accidentally saw a printed
copy of an e-mail sent by Walsh to some staff members which
essentially contained queries regarding the formerÊs job
performance. Alcaraz asked if WalshÊs action was the
normal process of evaluation. Terrible said that it was
not.11 (emphasis ours)
This allegation by the respondent in this regard in her

pleadings was impliedly admitted by the petitioner when it
failed to offer any refutation. Interestingly, the above
allegation was included in the narration of facts of
the Labor Arbiter, the NLRC, the CA and an earlier
version of the ponencia, although they arrived at two (2)
different conclusions.
The respondentÊs unrefuted allegation was not
considered at all in the conclusions of the Labor Arbiter
and of the ponencia.12 On the other hand, the NLRC and
the CA concluded that a different performance standard
and evaluation process
_______________
11 Pages 4-5 of the ponencia.
12 Ibid.; Rollo, pp. 260 and 271.
739
VOL. 701, JULY 23, 2013 739

was applied to the respondent in light of the circumstances

of the case, gleaned from the evidence submitted.13
In my view, the NLRC and the CA were not without
basis in making their conclusion as the incident, taken
together with the facts supported by the available evidence,
is vital in appreciating the nature of the respondentÊs
employment.
Since the respondent, as the incident suggests, was
bound by a different set of standards and procedures, and
since no evidence of record existed showing what these
standards were or that the required procedures were
observed, the petitionersÊ theory that the respondent was
informed of, and was evaluated pursuant to, the
performance standards applicable to her position, is
effectively negated. This leads to the conclusion that
the respondent, from the beginning, had been a
regular employee as a result of the failure of AbbottÊs
HR processes. A much simpler view, related this time to
the manner of her termination, is that the respondent was
simply differently treated.
B. „Just Cause‰ for Dismissal Must Exist
To justify the dismissal of an employee, the employer
carries the burden of proving that the dismissal was for a
just cause and with the observance of due process prior to
dismissal.14 The employer has to discharge this burden by
clear, accurate, consistent and convincing evidence;15 in
case of doubt, the presumption in the employeeÊs favor
under Article 4 of the Labor Code should apply.
II.B.1. The petitioner had no valid cause to
dismiss the respondentÊs employment
_______________
13 Rollo, pp. 1044-1045.
14 Aliling v. Feliciano, G.R. No. 185829, April 25, 2012, 671 SCRA
186, 205.
15 Ibid.
740

The respondent was dismissed as she „failed to qualify

as regular employee in accordance with the prescribed
standards set by the Company.‰16 Even granting for the
sake of argument that the petitioner had apprised the
respondent of an applicable performance standard, the
evidence failed to show that the respondent did not meet
this standard in a manner and to the extent equivalent to
the „just cause‰ that the law requires.
II.B.1(a). Just cause requirement for
employees, whether
probationary or regular.
An important legal point that should not be lost in
considering this case is that a probationary employee
does not have lesser rights than a regular employee
under the Labor Code in terms of the just cause for
the termination of an employment. While the strict
application of Article 282 of the Labor Code may be relaxed
because the employee is still under probation (so that
analogous probationary status rules may apply), the same
essential just cause for dismissal must be present and must
be proven. In other words, probationary employment does
not mean that the employee is under an „employment at
will‰ situation as that phrase is understood in American
jurisprudence. To reiterate, the fact that the respondent
was still in her probationary period of employment did not
lessen the burden of proof that the law imposed on the
petitioners to prove the just cause for her dismissal.17
Probationary employees are protected by the security of
tenure provision of the Constitution and they cannot be
removed from their position except only for cause.18
_______________
16 Rollo, p. 78.
17 Aberdeen Court, Inc. v. Agustin, Jr., 495 Phil. 706, 712; 456 SCRA
32, 38 (2005).
18 Ibid.
741
VOL. 701, JULY 23, 2013 741

II.B.1(b). The evidentiary status of the

just cause for dismissal
In the present case, the evidence did not show the just
cause that Article 282 of the Labor Code requires. No
evidence on record showed the commission by the
respondent of any of the following acts or omissions:
(a) Serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or
representative in connection with his work;
(b) Gross and habitual neglect by the employee of his
duties;
(c) Fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized
representative;
(d) Commission of a crime or offense by the employee
against the person of his employer or any immediate
member of his family or his duly authorized
representatives; and
(e) Other causes analogous to the foregoing.
On the contrary, the records disclose that the respondent
performed her duties under the guidance of the petitionerÊs
management and worked in line with the tasks assigned to
her.19 The petitionerÊs allegation of the respondentÊs „poor
performance‰ could not have been substantiated
considering the lack of any clear performance standard in
evaluating the respondentÊs work.
II.B.2. The petitioner violated its own
procedural requirements in the
performance evaluation
A first instance when the discussion related to „process‰
was with respect to the communication of performance
_______________
19 See page 4 of the ponencia.
742

standards. This topic also relates to process, but this

time on the matter of the procedure to be taken in
performance evaluation: the petitioner failed to observe
its own procedural requirements in evaluating the
respondentÊs probationary employment.
The petitionerÊs prescribed procedure gives probationary
employees two (2) opportunities to meet and qualify for
regularization. As mentioned before, the reviews were
aimed at informing the employees of their work
performance based on the petitionerÊs standard and on how
they can improve it to qualify for regularization. For
reasons not disclosed in the records, the prescribed
procedure was not followed by the petitioner in the
respondentÊs case. She was immediately terminated from
employment without having been evaluated and without
undergoing the evaluation process under the petitionerÊs
prescribed procedure.
While the petitionerÊs failure to observe its own
procedures is not disputed in the ponencia, the implication
of AbbottÊs failure cannot simply be glossed over. AbbottÊs
non-compliance should be viewed from the point of
fairness or lack of it, that attended the respondentÊs
dismissal. This circumstance should be considered together
with the other circumstances of the case, if only because
the petitionerÊs basic unfairness rendered doubtful the real
cause in the termination of her employment.
In other words, any deviation from the prescribed
procedures must be sufficiently explained to remove doubts
on the genuineness of the cause of dismissal. In this case,
not only did the petitioner fail to observe its own prescribed
procedure; more importantly, it also failed to provide an
explanation on why the prescribed procedure was not
followed in the respondentÊs case.
Significantly, the NLRC appreciated all these in
this case and this appreciation was duly noted and
evaluated by the CA. As there was in fact basis in
fact and in law in the NLRCÊs findings on this aspect
of the case,
743
VOL. 701, JULY 23, 2013 743

again the CA correctly found no grave abuse of

discretion in the NLRCÊs actions.
II.B.3. Violation of the Labor CodeÊs
procedural requirements
Additionally, the petitioner failed to comply with the
procedural due process of the Labor Code when it
terminated the respondentÊs employment. The two-written
notice requirement under Section 2, Rule XXIII, Book V
of the Omnibus Rules Implementing the Labor Code, as
amended, was never observed. To quote this provision:
Section 2. Standards of due process; requirements of

notice.·In all cases of termination of employment, the
following standards of due process shall be substantially
observed:
I. For termination of employment based on just causes as
defined in Article 282 of the Code:
(a) A written notice served on the employee
specifying the ground or grounds for termination, and
giving to said employee reasonable opportunity within
which to explain his side;
(b) A hearing or conference during which the employee
concerned, with the assistance of counsel if the employee so
desires, is given opportunity to respond to the charge, present
his evidence or rebut the evidence presented against him; and
(c) A written notice of termination served on the
employee indicating that upon due consideration of all
the circumstance[s], grounds have been established to
justify his termination.
In case of termination, the foregoing notices shall be served
on the employeeÊs last known address. [emphasis supplied]
744

The first notice is complied with when the employee is
properly apprised of the charges brought against him/her
so that he/she can properly prepare for his/her defense.20
The second notice is complied with when the employee is
informed of the employerÊs intention to terminate the
employment.21 A formal „trial-type‰ hearing, although
preferred, is not absolutely necessary to satisfy the
employeeÊs right to be heard. In Perez v. Philippine
Telegraph and Telephone Company,22 the Court laid down
the following guiding principles in connection with the
hearing requirement in dismissal cases:
a) „ample opportunity to be heard‰ means any
meaningful opportunity (verbal or written) given to
the employee to answer the charges against him and
submit evidence in support of his defense, whether in
a hearing, conference or some other fair, just and
reasonable way.
b) a formal hearing or conference becomes mandatory
only when requested by the employee in writing or
substantial evidentiary disputes exist or a company
rule or practice requires it, or when similar
circumstances justify it.
c) the „ample opportunity to be heard‰ standard in the
Labor Code prevails over the „hearing or conference‰
requirement in the implementing rules and
regulations.
From the records, the respondent received only one
notice and was not given ample opportunity to be
heard before her employment was terminated. The
respondent was not served a first written notice indicating:
(1) the grounds for terminating her employment; and (2) a
directive giving her the opportunity to submit a written
explanation within a
_______________
20 Dolores T. Esguerra v. Valle Verde Country Club, Inc., et al., G.R.
No. 173012, June 13, 2012, 672 SCRA 177.
21 Ibid.
22 G.R. No. 152048, April 7, 2009, 584 SCRA 110, 127.
745
VOL. 701, JULY 23, 2013 745

reasonable period. Neither was the respondent given the

ample opportunity to be heard as required by law. There
was only compliance with the second notice requirement
through the petitionerÊs letter dated May 19, 2005 which
was already a written notice of termination of
employment.23
In defense of AbbottÊs failure to observe the two-notice
requirement, the ponencia argues that a different
procedure applies when terminating a probationary
employee; the usual two-notice requirement does not
govern, citing for this purpose Section 2, Rule I, Book VI of
the Implementing Rules of the Labor Code.
The ponencia, however, forgets that the single notice
rule applies only if the employee is validly on probationary
basis; it does not apply where the employee is deemed
a regular employee for the companyÊs failure to
provide and to communicate a prescribed
performance standard applicable to the probationary
employee. The ponencia itself admits that in such a case,
the employee would then be a regular employee. Since the
petitioner utterly failed to support by evidence its
compliance with the legal requirements on performance
standards, the two-notice requirement for regular
employees must perforce fully apply.
C. The Consequences of the RespondentÊs
Illegal Dismissal
The above analysis shows that the respondent had been
illegally dismissed from her employment. The petitioner
failed to show that her dismissal was for a valid cause. The
petitioner also failed to respect the respondentÊs procedural
due process rights under the law.
As a consequence, the NLRC and the CA, thereafter,
correctly ordered the respondentÊs reinstatement and the
payment of the monetary awards of backwages, moral
damages,
_______________
23 Rollo, p. 78.
746

exemplary damages and attorneyÊs fees. The CA and the

NLRC also correctly held that the individual petitioners
(i.e., the corporate officers of the petitioner) should be
solidarily liable with the petitioner for the respondentÊs
monetary awards.
II.C.1. The recoverable reliefs
Article 279 of the Labor Code, as amended, provides the
following awards to an illegally dismissed employee:
Art. 279. Security of tenure.·In cases of regular

employment, the employer shall not terminate the services of
an employee except for a just cause or when authorized by
this Title. An employee who is unjustly dismissed from work
shall be entitled to reinstatement without loss of seniority
rights and other privileges and to his full backwages,
inclusive of allowances, and to his other benefits or their
monetary equivalent computed from the time his
compensation was withheld from him up to the time of his
actual reinstatement.
„By jurisprudence derived from [the above] provision,

separation pay may be awarded to an illegally dismissed
employee in lieu of reinstatement.‰24 Under Section 4(b),
Rule I of the Rules Implementing Book VI of the Labor
Code, separation pay is awarded, in lieu of reinstatement,
to an illegally dismissed employee when reinstatement is
no longer possible, i.e., when the dismissed employeeÊs
position is no longer available, or the continued
relationship between the employer and the employee would
no longer be viable due to the strained relations between
them, or when the dismissed employee opts not to be
reinstated, or when the payment of sepa-
_______________
24 Session Delights Ice Cream and Fast Foods v. Court of Appeals
(Sixth Division), G.R. No. 172149, February 8, 2010, 612 SCRA 10, 25,
citing Mt. Carmel College v. Resuena, G.R. No. 173076, October 10, 2007,
535 SCRA 518, 541.
747
VOL. 701, JULY 23, 2013 747

ration benefits would be for the best interest of the parties

involved.
„Thus, an illegally dismissed employee is entitled to
two reliefs: backwages and reinstatement. The two
reliefs provided are separate and distinct. In instances
where reinstatement is no longer feasible because of
strained relations between the employee and the employer,
separation pay is granted. In effect, an illegally dismissed
employee is entitled to either reinstatement, if viable, or
separation pay if reinstatement is no longer viable, and
backwages.‰25
II.C.2. Other awards as a consequence of the
damages suffered
In addition to these basic awards, an illegally dismissed
employee may also be awarded moral and exemplary
damages and attorneyÊs fees. Jurisprudence holds that
moral and exemplary damages are awarded when the
illegal dismissal is attended by bad faith.26 The Court has
also ruled that corporate officers are solidarily liable with
the employer company for the employeesÊ termination of
employment done with malice or bad faith.27
A review of the facts of the case shows ample evidence
supporting the petitionerÊs bad faith, as shown by the
manner in which the respondentÊs employment was
terminated. The NLRC, in its decision, exhaustively
discussed the petitionerÊs bad faith, as demonstrated by the
actions of the individual petitioners:
_______________
25 Macasero v. Southern Industrial Gases Philippines, G.R. No.
178524, January 30, 2009, 577 SCRA 500, 507.
26 Nazareno v. City of Dumaguete, G.R. No. 177795, June 19, 2009,
590 SCRA 110, 141-142. See also Civil Code, Articles 2208, 2217, 2219
and 2232.
27 MAM Realty Development Corporation v. NLRC, G.R. No. 114787,
June 2, 1995, 244 SCRA 797, 803.
748

The records show that complainant-appellantÊs dismissal

was effected by individual respondents-appellees in a
capricious and high-handed manner, anti-social and
oppressive, fraudulent and in bad faith, and contrary to
morals, good customs and public policy. Bad faith and fraud
are shown in the acts committed by respondents-appellees
before, during and after complainant-appellantÊs dismissal in
addition to the manner by which she was dismissed. First,
complainant-appellant was pressured to resign: (1) she was
threatened with termination, which will surely damage her
reputation in the pharmaceutical industry; (2) she was asked
to evacuate her Commission and ordered not to enter the
CompanyÊs premises even if she was still an Abbott employee;
and (3) individual respondents Ms. Terrible and Ms. Walsh
made a public announcement to the staff that complainant-
appellant already resigned even if in reality she did not. All of
which caused complainant-appellant much humiliation,
serious anxiety and besmirched reputation.28
The CA also described in detail the abrupt and

oppressive manner in which the respondentÊs employment
was dismissed by the petitioner:
On May 23, 2005, the private respondent still reported for

work since petitioner Abbott had not yet handed the
termination notice to her. However, the security guard did not
allow her to enter the Hospira ALSU office pursuant to Ms.
Walsh[Âs] instruction. She requested Ms. Walsh that she be
allowed to enter the company premises to retrieve her last
remaining things in her office which are mostly her personal
belongings. She was allowed to enter. However, she was
surprised to see her drawers already unlocked and, when she
opened the same, she discovered that her small brown
envelope x x x, white pouch containing the duplicate keys,
and the staff Ês final evaluation sheets were missing. The
private respondent informed Ms. Bernardo about the
incident. The latter re-
_______________
28 Rollo, pp. 375-376.
749
VOL. 701, JULY 23, 2013 749

sponded by saying she was no longer an employee of the

company since May 19, 2005.
The private respondent reported the matter to the Pasig
Police Station and asked for help regarding the theft of her
properties. The Pasig Police incident report stated as follows:
xxxx
When confronted by the suspect, in the presence of
one SOCO officer and staff, named Christian Perez.
Kelly Walsh allegedly admitted that she was the one
who opened the drawer and got the green folders
containing the staff evaluations. The Reportee, was told
by Kelly Walsh that her Rolex wristwatch will be
returned to her provided that she will immediately
vacate her office.
On the same date, the private respondentÊs termination
letter dated May 19, 2005 was handed to her by Ms. Walsh,
Mr. Almazar and Ms. Bernardo. On May 27, 2005, the private
respondent received another copy of the said termination
notice via registered mail.29
These explanations for the actions taken show

that the NLRCÊs recognition of the bad faith was not
without basis and was in fact supplemented by the
CA in the appellate courtÊs own confirmatory
explanation.
D. Application of the Rule 45 Standard of Review
Under the evidentiary situation that prevailed in this
case as described above in some detail, an expression of
wonder cannot be helped, particularly on how the ponencia
could conclude that the CA committed a reversible error
when it found no grave abuse of discretion in the NLRCÊs
actions on the case. In contrast with the findings of the
Labor Arbiter, the findings and conclusions of the NLRC,
as affirmed on a Rule 65 review by the CA, were based on
the law and juris-
_______________
29 Id., at pp. 1046-1047.
750

prudence as properly applied to the established set of facts

and evidence.
First, while the respondent, from the petitionerÊs
standpoint, was hired as a probationary employee, she was
deemed a regular employee pursuant to the clear
provisions of Article 281 of the Labor Code, as amended
and Section 6(d) of the Implementing Rules of Book VI,
Rule I of the Labor Code, as amended. The evidence
adduced failed to show that the petitioner ever apprised
the respondent at the time of her engagement of the
standards she must meet to qualify for regular
employment.
Second, the respondentÊs termination from employment
had no basis in fact and in law. Since the records failed to
support the petitionerÊs allegation that the respondentÊs
alleged poor performance and tardiness were proven by
evidence and, in fact, fell within the enumeration in Article
281 and Article 282 of the Labor Code, reason dictates that
the present petition be denied.
At the risk of repetition, the adduced evidence, in the
first place, did not prove that the respondentÊs work failed
to comply with the petitionerÊs performance standard as no
proof of the performance standard applied to the
respondentÊs work was actually presented. The
respondentÊs employment was also terminated without
undergoing any performance evaluation.
The evidence adduced did not also prove any act of
omission under Article 282 of the Labor Code committed by
the respondent. No evidence was presented on the
respondentÊs actual work so as to determine whether her
acts/omissions constituted a just cause for termination,
such as serious misconduct or gross or habitual neglect of
duty or any other analogous cause to the just causes
mentioned in the law.
As the records show, neither was there compliance with
the respondentÊs own internal procedures nor with the
lawÊs procedural due process. The respondent was not
served the two-
751
VOL. 701, JULY 23, 2013 751

notice required by law before her employment was

terminated by the petitioner.
Third, the NLRCÊs monetary awards, as affirmed by the
CA, were appropriate consequences of the respondentÊs
illegal dismissal from employment. The payment of the
respondentÊs backwages and the order of reinstatement
were consistent with the provisions of Article 279 of the
Labor Code. Jurisprudence also provides the award of
moral and exemplary damages, as well as attorneyÊs fees,
when bad faith is proven in the termination of employment.
In this case, the bad faith exhibited by the individual
petitioners was clearly established in the records. The
individual petitionersÊ bad faith was demonstrated by the
evidence of how they unfairly effected the termination of
the respondentÊs employment.
The narration of facts of the Labor Arbiter, the NLRC
and the CA shows, among others, that: (1) the individual
petitioners did not follow the petitionerÊs prescribed
procedure performance evaluation as, in fact, the
respondentÊs work was not evaluated; (2) the individual
petitioners, through their concerted actions, ganged up on
the respondent in forcing her to resign from employment;
(3) the individual petitioners pressured the respondent to
resign by announcing her resignation to the office staff,
thereby subjecting her to unwarranted humiliation; and (4)
they blackmailed the respondent by withholding her
personal possessions until she resigned from employment.
Bad faith can also be inferred from the lack of fairness
and underhandedness employed by the individual
petitioners on how they informed the respondent of the
termination of her employment. The records disclose that
the respondent was lured into a meeting on the pretext
that her work performance was to be evaluated; she was
caught off-guard when she was informed that her
employment had been terminated. Aside from the abrupt
notification, bad faith can also be deduced from the fact
that the termination was made immedi-
752

ately effective; the respondent was immediately banned

from the petitionerÊs premises after she was informed that
her employment had been terminated.
To my mind, the NLRC correctly ruled that the
individual petitioners were solidarily liable, together with
the petitioner, to pay the monetary awards. The cited
circumstances constitute sufficient evidence of their bad
faith in terminating the respondentÊs employment. Verily,
corporate officers are solidarily liable with the corporation
to pay monetary awards in illegal dismissal cases when
their bad faith is established in the termination of the
employment.
III. Conclusion
I close this Dissent with the note that the constitutional
protection of security of tenure is a right enjoyed by every
employee. Employment, regardless of the employment
status, may only be terminated for cause and within the
procedure prescribed by law and jurisprudence. A review of
the records shows that no reversible error was committed
by the CA in finding the NLRC free from any taint of grave
abuse of discretion in ruling on the respondentÊs illegal
dismissal. This conclusion is what the Court should reflect
in its Decision if it is to discharge in good faith its duty to
adjudicate.
Petition granted, judgment and resolution reversed and

set aside.
Notes.·A person whose right to remain in peaceful

possession of his property is violated by another personÊs
fraudulent registration of such property in her name is
entitled to nominal damages under Article 2221 of the Civil
Code. (Reyes vs. Montemayor, 598 SCRA 61 [2009])
The filing of a certificate of non-forum shopping is
mandatory so much so that non-compliance could only be
tolerated by special circumstances and compelling reasons;
This Court has held that when there are several
petitioners, all of them
753
VOL. 701, JULY 23, 2013 753

must execute and sign the certification against forum
shopping; otherwise, those who did not sign will be dropped
as parties to the case. (Pigcaulan vs. Security and Credit
Investigation, Inc., 663 SCRA 1 [2012])
··o0o··
© Copyright 2019 Central Book Supply, Inc. All rights reserved.

Abbott Laboratories, Philippines vs. Alcaraz

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Abbott Laboratories, Philippines vs. Alcaraz

Uploaded by

Copyright:

Available Formats

G.R. No. 192571. July 23, 2013.

ABBOTT LABORATORIES, PHILIPPINES, CECILLE A.

Remedial Law; Civil Procedure; Forum Shopping; Certification

VOL. 701, JULY 23, 2013 683