THIRD DIVISION

[G.R. NO. 178236 : June 27, 2008]

OLIGARIO SALAS, Petitioner, v. ABOITIZ ONE, INC., and SABIN ABOITIZ, Respondents.
DECISION
NACHURA, J.:
Petitioner Oligario Salas (Salas) appeals by certiorari the January 31, 2007 Decision1 of the
Court of Appeals (CA) in CA-G.R. SP No. 93947 and CA-G.R. SP No. 94145, and its June 13,
2007 Resolution2 denying his motion for reconsideration.
Salas was hired as assistant utility man by respondent Aboitiz One, Inc. (Aboitiz) on May 11,
1993, and was initially assigned at the Maintenance Department-Manila Office. He rose from the
ranks and became material controller on February 22, 2000 under the Materials Management &
Operations Team. As material controller, Salas was tasked with monitoring and maintaining the
availability and supply of Quickbox needed by Aboitiz in its day-to-day operations.
On June 4, 2003, Salas had run out of Large Quickbox, hampering Aboitiz's business operation.
The following day, June 5, 2003, Aboitiz wrote Salas a memorandum requiring the latter to
explain in writing within seventy-two (72) hours why he should not be disciplinarily dealt with for
his (i) failure to monitor the stock level of Large Quickbox which led to inventory stock out; and
(ii) failure to report to [his] immediate superior the Large Quickbox problem when the stock level
was already critical, when the Large Quickbox level was near stock out, and the stock level had
a stock out.3
On June 10, 2003, an administrative hearing was conducted to give Salas ample opportunity to
explain his side. Salas' explanation, however, was not convincing because on July 2, 2003,
Aboitiz sent him a decision notice4 which reads:
Dear Mr. Salas:
In connection with the administrative investigation conducted on June 10, 2003 related to your
alleged gross negligence of duties and responsibilities, the following are the findings during the
said investigation:
1. Although you repeatedly made follow-up to the [supplier], you failed to elevate the critical
situation to the attention of your leaders resulting to the stock out of a critical stock;
2. Your case was aggravated by your tampering of the Bin Card by changing the date of stock
from May 31 to June 2, 2003 to cover up your negligence and mislead the investigating team;
3. The stock out incident had a negative impact to the company in terms of revenue and
goodwill to clients.
Your position as Warehouseman is vested with trust and confidence by the company for the
reason that you are in-charge of safekeeping and monitoring of the company's operational
supplies and ensuring that these are available anytime.

 In consideration of the results of the investigation you are hereby terminated from the company
for loss of trust and confidence effective July 15, 2003.
Accordingly, you are hereby directed to report to the Human Resource Office for your final
clearance of money and property accountabilities, and obligations.
For your information and compliance.
Sincerely yours
(Signed)
PAUL HAMOY
Team Leader, Purchasing
Aboitiz One, Inc.
Salas thereafter sent a letter to Mr. Hamoy requesting reconsideration of the management's
decision stating:
Sir,
I would like to appeal for humanitarian reason on the decision of the management terminating
me from service.
1. I would like to ask if I could avail of the early retirement plan since I was able to work for the
company for 10 years, it is very hard for me that I be terminated after working for that long years
in A1, the money I will get from retirement plan will be use[d] for my family expenses for at least
a couple of months until I got a new job, pls. spare my family.
2. If you can't grant #1 appeal can you please allow me to tender my resignation instead of
being terminated by the company;
3. If I can stay up to July 31, 2003, so I can have enough time to look for another job and I can
earn enough money to support my family [for] at least another month in our everyday expenses.
thanks, ohlee salas.5
Mr. Hamoy replied via electronic mail (e-mail) denying Salas' request to avail himself of the
retirement plan or tender his resignation. He reasoned that the company's table of discipline
provides the penalty of dismissal for the offenses he committed. Salas was, however, granted
an extension of one (1) month or until August 15, 2003 to work with the company, if he so
desired.6
Claiming termination without cause, Salas filed with the Labor Arbiter a complaint against Aboitiz
and its president Sabin Aboitiz for illegal dismissal with prayer for reinstatement, and for
payment of full backwages, moral and exemplary damages, as well as attorney's fees.
Aboitiz responded that there was valid termination. It asserted that Salas was dismissed for just
cause and with due process. It claimed Salas willfully breached his duty when Aboitiz ran out of
Large Quickbox, justifying the termination of his employment.7

 On February 19, 2004, the Labor Arbiter rendered a Decision8 sustaining the validity of Salas'
dismissal. The Arbiter agreed with Aboitiz that Salas had been remiss in his duty as material
controller when he ran out of Large Quickbox on June 4, 2003. The Arbiter further declared that
Aboitiz was justified in imposing the ultimate penalty of dismissal, considering Salas' previous
infractions.
On appeal, the National Labor Relations Commission (NLRC) reversed the Labor Arbiter. But
noting that Salas was not entirely faultless, the NLRC denied his prayer for backwages, and
ordered the payment of separation pay instead of reinstatement. The NLRC ratiocinated, thus:
Under the Labor Code, gross negligence is a valid ground for an employer to terminate an
employee. Gross negligence characterized by want of even slight care acting or omitting to act
in a situation where there is a duty to act, not inadvertently but willfully and intentionally with a
conscious indifference to consequence insofar as other persons may be affected (Tres Reyes v.
Maxim's Tea House, 398 SCRA 288). It is for this reason that We disagree with the finding of the
Labor Arbiter that [Salas] is guilty of gross negligence because [Salas] did his duty to make
proper requisition in advance. If there is anyone to blame for failure to deliver to the requisitioner
[Salas], the requisitioned items, it should be the purchasing officer who should have made the
corresponding explanation, and to bear the consequences if his explanation is implausible. If
ever [Salas] failed to follow-up, it does not follow that he is remiss in his duty, as the duty to
deliver the requisitioned items is already on the purchasing officer. Moreover, [Salas] explained
during the hearing that he made follow-ups. What puzzles Us is, why did not the management
require the Circle Team and the Purchasing Officer to explain. Such omission, to Our mind,
indicates discrimination against [Salas].
Past infractions of the same nature can be used to evaluate the sufficiency of the last offense for
termination of employment. Considering that We see no gross negligence on [Salas] for which
his employment was terminated, consideration of past infractions become immaterial. Moreover,
with his ten years of service in the company, he was charged twice, about the alleged sale of
used eight units of air conditioner and refusal to assist in the loading at the fuel depot of refueler
truck, for which he was penalized by suspension x x x. These past offenses are not of the same
nature as the alleged gross negligence that prompted [Aboitiz] to dismiss [Salas] and, therefore,
cannot be used as additional justification with the last offense.
However, We find [Salas] guilty of negligence, not because the quick box ran out of stock as of
02 June 2003 but because he failed to monitor and properly document, the stocks in his
custody. As he admitted during the administrative hearing, there were those which are even
missing. Worst, he tampered the records to show that the stock on 31 May 2003 is for 02 June
2003. While there is no intention to defraud the company, that indicates an act that deserve (sic)
disciplinary sanction.

Dismissal is too harsh a penalty for his negligence and act of tampering. This is especially true
because he readily admitted the same during the administrative hearing. Considering his length
of service, and adhering to the compassionate justice observed in labor cases, deletion of
backwages, but with reinstatement, is sufficient penalty. Nonetheless, it appears that strained
relations has (sic) already set between the parties that precludes harmonious working
relationship. In such case, jurisprudence has laid out the solution by ordering payment of
separation pay at one (1) month for every year of service in lieu of reinstatement.
The alleged failure of [Salas] to account for alleged unused accountable forms in the amount of
P57,850.00 cannot be used as justification for [Salas'] dismissal. This charge came out after
Salas' dismissal for which [Salas] was not surely given an opportunity to be heard. Additionally,
[no] substantial evidence was presented to establish such charge. by mere certification of Pablo
Osit (sic). How Mr. Osit arrived at such figure is not even explained.9
Aboitiz filed a motion for reconsideration, while Salas sought partial reconsideration of the
decision, both of which were denied by the NLRC on January 24, 2006.
Salas and Aboitiz thereupon filed their respective petitions for certiorari with the Court of
Appeals (CA), docketed as CA-G.R. SP No. 93947 and CA-G.R. SP No. 94145, respectively.
Salas questioned the denial of his prayer for backwages and other monetary benefits, and the
order directing payment of separation pay instead of reinstatement. Upon the other hand,
Aboitiz faulted the NLRC for not sustaining the validity of Salas' dismissal.
By decision of January 31, 2007, the CA, which priorly consolidated the petitions of both parties,
sustained Salas' dismissal. Reversing the NLRC, it held that:
[t]hree valid grounds attended the dismissal of Salas: (1) Serious misconduct under Art.
282 (a), Labor Code, for his tamper(ing) the records to show that the stock on 31 May 2003 is
for 02 June 2003" even if he is to be considered as an ordinary employee; (2) Gross and
habitual neglect under Art. 282 (b), Labor Code, as the NLRC no less admits that "for the nth
time" Salas repeatedly "demonstrated laxity in the performance of his duty"; and (3) willful
breach by Salas of the trust reposed on him by Aboitiz, under Art. 282 (c) of the Labor Code,
because as "warehouseman", and therefore a confidential employee, Salas concededly
tampered company records to hide his gross and habitual neglect [of duty] and worse,
unauthorizedly sold the company's eight units of used airconditioners. There, thus, is no basis
here for an award of reinstatement and full backwages under Art. 279 of the Labor Code, nor of
any financial assistance due to strained relation between the parties.10
The CA disposed, thus:
WHEREFORE, the petition of Aboitiz One, Inc. is GRANTED. The NLRC's decision dated
September 21, 2005 and resolution dated January 24, 2006, are SET ASIDE and the complaint
below is DISMISSED for being without merit.

 SO ORDERED.11
Salas filed a motion for reconsideration, but the CA denied it on June 13, 2007.
Aggrieved by the resolutions of the CA, Salas comes to this Court positing that:
THE HON. COURT OF APPEALS SERIOUSLY ERRED IN LAW AND COMMITTED
MISAPPREHENSION OF FACTS IN REVERSING THE NLRC DECISION INSTEAD OF
MODIFYING IT TO INCLUDE BACKWAGES ON MERE GROUND OF A SINGLE AND SIMPLE
NEGLIGENCE WHICH IS NOT A GROUND FOR DISMISSAL. SIMILARLY, THIS CANNOT BE
THE BASIS OF DISMISSAL ON GROUND OF LOSS OF TRUST AND CONFIDENCE.12
The Court shall deal first with the procedural issue.
Commenting on the petition, Aboitiz argues that the petition suffers from procedural infirmities
which warrant its dismissal. It asserts that no duplicate original or certified true copy of the
assailed decision and resolution, and material portions of the record were appended to the
petition. It also alleged that the petition did not indicate the material dates to show that it was
filed on time. Finally, it argues that the certification of non-forum shopping is defective.
Contrary to Aboitiz's assertion, the petition substantially complies with the requirements set forth
by the Rules of Court. Salas submitted a duplicate original of the assailed Decision13 and
Resolution14 of the CA, as well as copies of the material portions of the record referred to in the
petition.15
Likewise, he indicated in his petition the material dates showing that the petition was filed on
time. He alleged that he received the assailed CA Decision on February 9, 2007 and filed a
motion for reconsideration on February 19, 2007, which was denied by the CA in its June 13,
2007 Resolution. The Resolution denying his motion for reconsideration was received on June
15, 2007.16
There is also no dispute that Salas had complied with the requirement of the rules on the
certification of non-forum shopping. Salas certifies that he did not commence any case based
on similar cause of action before any Court, quasi-judicial body or tribunal. He also averred that:
[t]here is no pending case similar to this case before the Supreme Court, the Court of Appeals
(or any of its Division) quasi-judicial bodies or any tribunal, and should I thereafter learn, that the
same or similar action or claim has been filed or is pending, I shall report that fact within five (5)
days therefrom to this Hon. Court of Appeals wherein this initiatory pleading has been filed
pursuant to Section 5, Rule 7 paragraph (c) of the Revised Rules of Court.17
Obviously, Salas committed a typographical error in stating "this Hon. Court of Appeals" instead
of "this Honorable Court where this initiatory pleading (petition) has been filed." This innocuous
oversight did not render the certification defective, and thus, would not warrant the outright
dismissal of the petition.

 Besides, it has been our consistent holding that the ends of justice are better served when
cases are determined on the merits - after all, parties are given full opportunity to ventilate their
causes and defenses - rather than on technicality or some procedural imperfections.18 Aboitiz's
plea for the outright dismissal of the petition cannot, therefore, be sustained.
Having resolved the procedural issue, we proceed to the merits of the case.
As stated in the decision notice,19 Salas was terminated for neglect of duty and willful breach of
trust. Gross negligence connotes want or absence of or failure to exercise slight care or
diligence, or the entire absence of care. It evinces a thoughtless disregard of consequences
without exerting any effort to avoid them. To warrant removal from service, the negligence
should not merely be gross, but also habitual.20
Undoubtedly, it was Salas' duty, as material controller, to monitor and maintain the availability
and supply of Quickbox needed by Aboitiz in its day-to-day operations, and on June 4, 2003,
Aboitiz had run out of Large Quickbox. However, records show that Salas made a requisition for
Quickbox as early as May 21, 2003; that he made several follow-ups with Eric Saclamitao
regarding the request; and that he even talked to the supplier to facilitate the immediate delivery
of the Quickbox.21 It cannot be gainsaid that Salas exerted efforts to avoid a stock out of
Quickbox. Accordingly, he cannot be held liable for gross negligence.
If there is anything that Salas can be faulted for, it is his failure to promptly inform his immediate
supervisor, Mr. Ed Dumago, of the non-delivery of the requisitioned items. Nevertheless, such
failure did not amount to gross neglect of duty or to willful breach of trust, which would justify his
dismissal from service.
The CA also justified Salas' dismissal on ground of willful breach of trust. It lent credence to
Aboitiz's posture that Salas was a warehouseman holding a position of trust and confidence,
and that he tampered with the bin card to cover up [his] negligence and [to] mislead the
investigating team.
We disagree.
A position of trust and confidence was explained in Panday v. NLRC,22 viz.:
The case of Lepanto Consolidated Mining Co. v. Court of Appeals 1 SCRA 1251 (1961),
provides us with a definition of a "position of trust and confidence." It is one where a person is
"entrusted with confidence on delicate matters," or with the custody, handling, or care and
protection of the employer's property.
A few examples were given by the Court in the case of Globe-Mackay Cable and Radio
Corporation v. National Labor Relations Commission and Imelda Salazar, G.R. No. 82511,
March 3, 1992, to illustrate the principle:
x x x where the employee is a Vice-President for Marketing and as such, enjoys the full trust
and confidence of top management (Asiaworld Publishing House, Inc. v. Ople, 152 SCRA 219

[1987]); or is the Officer-In-Charge of the extension office of the bank where he works (Citytrust
Finance Corp. v. NLRC, 157 SCRA 87 [1988]); or is an organizer of a union who was in a
position to sabotage the union's efforts to organize the workers in commercial and industrial
establishments (Bautista v. Inciong, 158 SCRA 665 [1988]); or is a warehouseman of a non-
profit organization whose primary purpose is to facilitate and maximize voluntary gifts by foreign
individuals and organizations to the Philippines (Esmalin v. NLRC, 177 SCRA 537 [1989]); or is
a manager of its Energy Equipment Sales (Maglutac v. NLRC, 189 SCRA 767 [1990])."
In fact, the classification of a Credit and Collection Supervisor by management as managerial/
supervisory was sustained by this Court in the case of Tabacalera Insurance Co. v. National
Labor Relations Commission, 152 SCRA 667 [1987]. The reasons for a similar ruling apply to
the position of branch accountant which the petitioner was then holding.
Evidently, Salas as material controller was tasked with monitoring and maintaining the
availability and supply of Quickbox. There appears nothing to suggest that Salas' position was a
highly or even primarily confidential position, so that he can be removed for loss of trust and
confidence by the employer.
Notably, in Manila Memorial Park Cemetery, Inc. v. Panado,23 we held that:
[T]he term "trust and confidence" is restricted to managerial employees or those who are vested
with powers or prerogatives to lay down and execute management policies and/or to hire
transfer, suspend, lay-off, recall, discharge, assign or discipline employees or to effectively
recommend such managerial actions.
Besides, as we review the records before us, we do not see any semblance of willful breach of
trust on the part of Salas. It is true that there was erasure or alteration on the bin card. Aboitiz,
however, failed to demonstrate that it was done to cover up Salas' alleged negligence. Other
than the bin card and Aboitiz's barefaced assertion, no other evidence was offered to prove the
alleged cover-up. Neither was there any showing that Salas attempted to mislead the
investigating team. The CA, therefore, erred in adopting Aboitiz's unsubstantiated assertion to
justify Salas' dismissal.
Indeed, an employer has the right, under the law, to dismiss an employee based on fraud or
willful breach of the trust bestowed upon him by his employer or the latter's authorized
representative. However, the loss of trust must be based not on ordinary breach but, in the
language of Article 282(c) of the Labor Code, on willful breach. A breach is willful if it is done
intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act
done carelessly, thoughtlessly, heedlessly or inadvertently. It must rest on substantial grounds
and not on the employer's arbitrariness, whims, caprices or suspicion; otherwise, the employee
would eternally remain at the mercy of the employer. It should be genuine and not simulated;
nor should it appear as a mere afterthought to justify an earlier action taken in bad faith or a

subterfuge for causes which are improper, illegal or unjustified. It has never been intended to
afford an occasion for abuse because of its subjective nature. There must, therefore, be an
actual breach of duty committed by the employee which must be established by substantial
evidence.24 In this case, Aboitiz utterly failed to establish the requirements prescribed by law
and jurisprudence for a valid dismissal on the ground of breach of trust and confidence.
Neither can Aboitiz validate Salas' dismissal on the ground of serious misconduct for his alleged
failure to account for unused accountable forms amounting to P57,850.00.
As aptly found by the NLRC, the charge came only after Salas' dismissal. We also note that the
subject accountable forms were issued to Salas in 2001. Inexplicably, this alleged infraction was
never included as ground in the notice of termination. It was only on November 23, 2003 or
three (3) months after the filing of the complaint for illegal dismissal that Aboitiz asserted that
Salas failed to account for these unused accountable forms amounting to P57,850.00. It is clear
that such assertion of serious misconduct was a mere afterthought to justify the illegal dismissal.
Similarly, before the Labor Arbiter, NLRC, and CA, Aboitiz's arguments zeroed in on Salas'
alleged neglect of duty and breach of trust. It was, therefore, error for the CA to include serious
misconduct, which had never been raised in the proceedings below, as ground to sustain the
legality of Salas' dismissal.
The CA also cited another infraction allegedly committed by Salas as additional ground for his
dismissal. It declared that Salas unauthorizedly sold the company's eight units of used air-
conditioners. Yet, we note that Salas had never been charged or suspended for this alleged
unauthorized sale of used air-conditioners during his employment with Aboitiz. The infraction for
which Salas had been penalized by suspension of five (5) days was his failure to meet the
security requirements of the company.25 Accordingly, there is no basis for the CA to include
unauthorized sale of used air-conditioners as ground to sustain Salas' dismissal.
Aboitiz's reliance on the past offenses of Salas for his eventual dismissal is likewise unavailing.
The correct rule has always been that such previous offenses may be used as valid justification
for dismissal from work only if the infractions are related to the subsequent offense upon which
the basis of termination is decreed.26 While it is true that Salas had been suspended on June 1,
2000 for failure to meet the security requirements of the company,27 and then on July 20, 2001
for his failure to assist in the loading at the fuel depot,28 these offenses are not related to Salas'
latest infraction, hence, cannot be used as added justification for the dismissal.
Furthermore, Salas had already suffered the corresponding penalties for these prior infractions.
Thus, to consider these offenses as justification for his dismissal would be penalizing Salas
twice for the same offense. As the Court ruled in Pepsi-Cola Distributors of the Philippines, Inc.
v. National Labor Relations Commission,29 and recently in Coca-Cola Bottlers, Philippines, Inc.
v. Kapisanan ng Malayang Manggagawa sa Coca Cola-FFW:30

 Moreover, private respondent was already penalized with suspensions in some of the infractions
imputed to him in this case, like sleeping while on route rides, incomplete accomplishment of
sales report and his failure to achieve sales commitments. He cannot again be penalized for
those misconduct. The foregoing acts cannot be added to support the imposition of the ultimate
penalty of dismissal which must be based on clear and not on ambiguous and ambivalent
ground.
Undoubtedly, no just cause exists to warrant Salas' dismissal. Consequently, he is entitled to
reinstatement to his former position without loss of seniority rights, and to payment of
backwages.31
However, we limit the award of backwages because we find that Salas was not entirely faultless.
As earlier adverted to, Salas failed to promptly inform his immediate superior of the non-delivery
of the requisitioned items. Had Salas promptly informed Ed Dumago of the non-delivery, the
incident complained of would have been avoided. Although such negligence would not justify
Salas' termination from employment in view of the stringent condition imposed by the Labor
Code on termination of employment due to gross and habitual neglect, the same cannot be
condoned, much less tolerated.
In PLDT v. National Labor Relations Commission,32 this Court sustained the award of
backwages in favor of an employee who was found not to be entirely faultless, but only from the
date of the NLRC's promulgation of the decision.
WHEREFORE, the petition is GRANTED. The Decision and Resolution of the Court of Appeals
in CA-G.R. SP No. 93947 and CA-G.R. SP No. 94145, are REVERSED and SET ASIDE.
Aboitiz One, Inc. is ordered to REINSTATE Oligario Salas to his former position without loss of
seniority rights, with payment of backwages computed from September 21, 2005, up to the time
of reinstatement.
No pronouncement as to costs.
SO ORDERED.

SECOND DIVISION
[G.R. NO. 153510 : February 13, 2008]
R.B. MICHAEL PRESS and ANNALENE REYES ESCOBIA, Petitioners, v. NICASIO C. GALIT,
Respondent.
DECISION
VELASCO, JR., J.:
The Case
Year in, year out, a copious number of illegal dismissal cases reach the Court of Appeals (CA)
and eventually end up with this Court. This Petition for Review under Rule 45 registered by

 petitioners R.B. Michael Press and Annalene Reyes Escobia against their former machine
operator, respondent Nicasio C. Galit, is among them. It assails the November 14, 2001
Decision of the CA in CA-G.R. SP No. 62959, finding the dismissal of respondent illegal.
Likewise challenged is the May 7, 2002 Resolution denying reconsideration.
The Facts
On May 1, 1997, respondent was employed by petitioner R.B. Michael Press as an offset
machine operator, whose work schedule was from 8:00 a.m. to 5:00 p.m., Mondays to
Saturdays, and he was paid PhP 230 a day. During his employment, Galit was tardy for a total
of 190 times, totaling to 6,117 minutes, and was absent without leave for a total of nine and a
half days.
On February 22, 1999, respondent was ordered to render overtime service in order to comply
with a job order deadline, but he refused to do so. The following day, February 23, 1999,
respondent reported for work but petitioner Escobia told him not to work, and to return later in
the afternoon for a hearing. When he returned, a copy of an Office Memorandum was served on
him, as follows:
To : Mr. Nicasio Galit
From : ANNALENE REYES-ESCOBIA
Re : WARNING FOR DISMISSAL; NOTICE OF HEARING
This warning for dismissal is being issued for the following offenses:
(1) habitual and excessive tardiness
(2) committing acts of discourtesy, disrespect in addressing superiors
(3) failure to work overtime after having been instructed to do so
(4) Insubordination - willfully disobeying, defying or disregarding company authority
The offenses you ve committed are just causes for termination of employment as provided by
the Labor Code. You were given verbal warnings before, but there had been no improvement on
your conduct.
Further investigation of this matter is required, therefore, you are summoned to a hearing at
4:00 p.m. today. The hearing wills determine your employment status with this company.
(SGD) ANNALENE REYES-ESCOBIA
Manager1
On February 24, 1999, respondent was terminated from employment. The employer, through
petitioner Escobia, gave him his two-day salary and a termination letter, which reads:
February 24, 1999
Dear Mr. Nicasio Galit,

 I am sorry to inform you that your employment with this company has been terminated effective
today, February 24, 1999. This decision was not made without a thorough and complete
investigation.
You were given an office memo dated February 23, 1999 warning you of a possible dismissal.
You were given a chance to defend yourself on a hearing that was held in the afternoon of the
said date.
During the hearing, Mrs. Rebecca Velasquez and Mr. Dennis Reyes, were present in their
capacity as Production Manager and Supervisor, respectively.
Your admission to your offenses against the company and the testimonies from Mrs. Velasquez
and Mr. Reyes justified your dismissal from this company,
Please contact Ms. Marly Buita to discuss 13th-Month Pay disbursements.
Cordially,
(SGD) Mrs. Annalene Reyes-Escobia2
Respondent subsequently filed a complaint for illegal dismissal and money claims before the
National Labor Relations Commission (NLRC) Regional Arbitration Branch No. IV, which was
docketed as NLRC Case No. RAB IV-2-10806-99-C. On October 29, 1999, the labor arbiter
rendered a Decision,
WHEREFORE, premises considered, there being a finding that complainant was illegally
dismissed, respondent RB MICHAEL PRESS/Annalene Reyes-Escobia is hereby ordered to
reinstate complainant to his former position without loss of seniority rights and other benefits,
and be paid his full backwages computed from the time he was illegally dismissed up to the time
of his actual reimbursement.
All other claims are DISMISSED for lack of evidence.
SO ORDERED.3
On January 3, 2000, petitioners elevated the case to the NLRC and their appeal was docketed
as NLRC NCR CA No. 022433-00. In the April 28, 2000 Decision, the NLRC dismissed the
appeal for lack of merit.
Not satisfied with the ruling of the NLRC, petitioners filed a Petition for Certiorari with the CA.
On November 14, 2001, the CA rendered its judgment affirming with modification the NLRC's
Decision, thus:
WHEREFORE, the petition is DISMISSED for lack of merit. The Decision of public respondent is
accordingly modified in that the basis of the computation of the backwages, 13th month pay and
incentive pay should be respondent's daily wage of P230.00; however, backwages should be
computed from February 22, 1999 up to the finality of this decision, plus the 13th month and
service incentive leave pay.4

 The CA found that it was not the tardiness and absences committed by respondent, but his
refusal to render overtime work on February 22, 1999 which caused the termination of his
employment. It ruled that the time frame in which respondent was afforded procedural due
process is dubitable; he could not have been afforded ample opportunity to explain his side and
to adduce evidence on his behalf. It further ruled that the basis for computing his backwages
should be his daily salary at the time of his dismissal which was PhP 230, and that his
backwages should be computed from the time of his dismissal up to the finality of the CA's
decision.
On December 3, 2001, petitioners asked for reconsideration5 but was denied in the CA's May 7,
2002 Resolution.
Persistent, petitioners instituted the instant petition raising numerous issues which can be
summarized, as follows: first, whether there was just cause to terminate the employment of
respondent, and whether due process was observed in the dismissal process; and second,
whether respondent is entitled to backwages and other benefits despite his refusal to be
reinstated.
The Court's Ruling
It is well settled that findings of fact of quasi-judicial agencies, like the NLRC, are accorded not
only respect but even finality if the findings are supported by substantial evidence. This is
especially so when such findings of the labor arbiter were affirmed by the CA.6 However, this is
not an iron-clad rule. Though the findings of fact by the labor arbiter may have been affirmed
and adopted by the NLRC and the CA as in this case, it cannot divest the Court of its authority
to review the findings of fact of the lower courts or quasi-judicial agencies when it sees that
justice has not been served, more so when the lower courts or quasi-judicial agencies' findings
are contrary to the evidence on record or fail to appreciate relevant and substantial evidence
presented before it.7
Petitioners aver that Galit was dismissed due to the following offenses: (1) habitual and
excessive tardiness; (2) commission of discourteous acts and disrespectful conduct when
addressing superiors; (3) failure to render overtime work despite instruction to do so; and (4)
insubordination, that is, willful disobedience of, defiance to, or disregard of company authority.8
The foregoing charges may be condensed into: (1) tardiness constituting neglect of duty; (2)
serious misconduct; and (3) insubordination or willful disobedience.
Respondent's tardiness cannot be considered condoned by petitioners
Habitual tardiness is a form of neglect of duty. Lack of initiative, diligence, and discipline to
come to work on time everyday exhibit the employee's deportment towards work. Habitual and
excessive tardiness is inimical to the general productivity and business of the employer. This is

 especially true when the tardiness and/or absenteeism occurred frequently and repeatedly
within an extensive period of time.
In resolving the issue on tardiness, the labor arbiter ruled that petitioners cannot use
respondent's habitual tardiness and unauthorized absences to justify his dismissal since they
had already deducted the corresponding amounts from his salary. Furthermore, the labor arbiter
explained that since respondent was not subjected to any admonition or penalty for tardiness,
petitioners then had condoned the offense or that the infraction is not serious enough to merit
any penalty. The CA then supported the labor arbiter's ruling by ratiocinating that petitioners
cannot draw on respondent's habitual tardiness in order to dismiss him since there is no
evidence which shows that he had been warned or reprimanded for his excessive and habitual
tardiness.
We find the ruling incorrect.
The mere fact that the numerous infractions of respondent have not been immediately subjected
to sanctions cannot be interpreted as condonation of the offenses or waiver of the company to
enforce company rules. A waiver is a voluntary and intentional relinquishment or abandonment
of a known legal right or privilege.9 It has been ruled that "a waiver to be valid and effective must
be couched in clear and unequivocal terms which leave no doubt as to the intention of a party to
give up a right or benefit which legally pertains to him."10 Hence, the management prerogative to
discipline employees and impose punishment is a legal right which cannot, as a general rule, be
impliedly waived.
In Cando v. NLRC,11 the employee did not report for work for almost five months when he was
charged for absenteeism. The employee claimed that such absences due to his handling of
union matters were condoned. The Court held that the employee did not adduce proof to show
condonation coupled with the fact that the company eventually instituted the administrative
complaint relating to his company violations.
Thus it is incumbent upon the employee to adduce substantial evidence to demonstrate
condonation or waiver on the part of management to forego the exercise of its right to impose
sanctions for breach of company rules.
In the case at bar, respondent did not adduce any evidence to show waiver or condonation on
the part of petitioners. Thus the finding of the CA that petitioners cannot use the previous
absences and tardiness because respondent was not subjected to any penalty is bereft of legal
basis. In the case of Filipio v. The Honorable Minister Blas F. Ople,12 the Court, quoting then
Labor Minister Ople, ruled that past infractions for which the employee has suffered the
corresponding penalty for each violation cannot be used as a justification for the employee's
dismissal for that would penalize him twice for the same offense. At most, it was explained,
"these collective infractions could be used as supporting justification to a subsequent similar

 offense." In contrast, the petitioners in the case at bar did not impose any punishment for the
numerous absences and tardiness of respondent. Thus, said infractions can be used collectively
by petitioners as a ground for dismissal.
The CA however reasoned out that for respondent's absences, deductions from his salary were
made and hence to allow petitioners to use said absences as ground for dismissal would
amount to "double jeopardy."
This postulation is incorrect.
Respondent is admittedly a daily wage earner and hence is paid based on such arrangement.
For said daily paid workers, the principle of "a day's pay for a day's work" is squarely applicable.
Hence it cannot be construed in any wise that such nonpayment of the daily wage on the days
he was absent constitutes a penalty.
Insubordination or willful disobedience
While the CA is correct that the charge of serious misconduct was not substantiated, the charge
of insubordination however is meritorious.
For willful disobedience to be a valid cause for dismissal, these two elements must concur: (1)
the employee's assailed conduct must have been willful, that is, characterized by a wrongful and
perverse attitude; and (2) the order violated must have been reasonable, lawful, made known to
the employee, and must pertain to the duties which he had been engaged to discharge.13
In the present case, there is no question that petitioners' order for respondent to render
overtime service to meet a production deadline complies with the second requisite. Art. 89 of the
Labor Code empowers the employer to legally compel his employees to perform overtime work
against their will to prevent serious loss or damage:
Art. 89. EMERGENCY OVERTIME WORK
Any employee may be required by the employer to perform overtime work in any of the following
cases:
xxx
(c) When there is urgent work to be performed on machines, installations, or equipment, in order
to avoid serious loss or damage to the employer or some other cause of similar nature;
xxx
In the present case, petitioners' business is a printing press whose production schedule is
sometimes flexible and varying. It is only reasonable that workers are sometimes asked to
render overtime work in order to meet production deadlines.
Dennis Reyes, in his Affidavit dated May 3, 1999, stated that in the morning of February 22,
1999, he approached and asked respondent to render overtime work so as to meet a production
deadline on a printing job order, but respondent refused to do so for no apparent reason.

 Respondent, on the other hand, claims that the reason why he refused to render overtime work
was because he was not feeling well that day.
The issue now is, whether respondent's refusal or failure to render overtime work was willful;
that is, whether such refusal or failure was characterized by a wrongful and perverse attitude. In
Lakpue Drug Inc. v. Belga, willfulness was described as "characterized by a wrongful and
perverse mental attitude rendering the employee's act inconsistent with proper subordination."14
The fact that respondent refused to provide overtime work despite his knowledge that there is a
production deadline that needs to be met, and that without him, the offset machine operator, no
further printing can be had, shows his wrongful and perverse mental attitude; thus, there is
willfulness.
Respondent's excuse that he was not feeling well that day is unbelievable and obviously an
afterthought. He failed to present any evidence other than his own assertion that he was sick.
Also, if it was true that he was then not feeling well, he would have taken the day off, or had
gone home earlier, on the contrary, he stayed and continued to work all day, and even tried to
go to work the next day, thus belying his excuse, which is, at most, a self-serving statement.
After a re-examination of the facts, we rule that respondent unjustifiably refused to render
overtime work despite a valid order to do so. The totality of his offenses against petitioner R.B.
Michael Press shows that he was a difficult employee. His refusal to render overtime work was
the final straw that broke the camel's back, and, with his gross and habitual tardiness and
absences, would merit dismissal from service.
Due process: twin notice and hearing requirement
On the issue of due process, petitioners claim that they had afforded respondent due process.
Petitioners maintain that they had observed due process when they gave respondent two
notices and that they had even scheduled a hearing where he could have had explained his
side and defended himself.
We are not persuaded.
We held in Agabon v. NLRC:
Procedurally, (1) if the dismissal is based on a just cause under Article 282, the employer must
give the employee two written notices and a hearing or opportunity to be heard if requested by
the employee before terminating the employment: a notice specifying the grounds for which
dismissal is sought a hearing or an opportunity to be heard and after hearing or opportunity to
be heard, a notice of the decision to dismiss; and (2) if the dismissal is based on authorized
causes under Articles 283 and 284, the employer must give the employee and the Department
of Labor and Employment written notices 30 days prior to the effectivity of his separation.15
Under the twin notice requirement, the employees must be given two (2) notices before his
employment could be terminated: (1) a first notice to apprise the employees of their fault, and

 (2) a second notice to communicate to the employees that their employment is being
terminated. Not to be taken lightly of course is the hearing or opportunity for the employee to
defend himself personally or by counsel of his choice.
In King of Kings Transport v. Mamac,16 we had the occasion to further elucidate on the
procedure relating to the twin notice and hearing requirement, thus:
(1) The first written notice to be served on the employees should contain the specific causes
or grounds for termination against them, and a directive that the employees are given the
opportunity to submit their written explanation within a reasonable period. "Reasonable
opportunity" under the Omnibus Rules means every kind of assistance that management must
accord to the employees to enable them to prepare adequately for their defense. This should be
construed as a period of at least five (5) calendar days from receipt of the notice to give the
employees an opportunity to study the accusation against them, consult a union official or
lawyer, gather data and evidence, and decide on the defenses they will raise against the
complaint. Moreover, in order to enable the employees to intelligently prepare their explanation
and defenses, the notice should contain a detailed narration of the facts and circumstances that
will serve as basis for the charge against the employees. A general description of the charge will
not suffice. Lastly, the notice should specifically mention which company rules, if any, are
violated and/or which among the grounds under Art. 282 is being charged against the
employees.
(2) After serving the first notice, the employers should schedule and conduct a hearing or
conference wherein the employees will be given the opportunity to: (1) explain and clarify their
defenses to the charge against them; (2) present evidence in support of their defenses; and (3)
rebut the evidence presented against them by the management. During the hearing or
conference, the employees are given the chance to defend themselves personally, with the
assistance of a representative or counsel of their choice. Moreover, this conference or hearing
could be used by the parties as an opportunity to come to an amicable settlement.
(3) After determining that termination of employment is justified, the employers shall serve the
employees a written notice of termination indicating that: (1) all circumstances involving the
charge against the employees have been considered; and (2) grounds have been established to
justify the severance of their employment.
In addition, if the continued employment poses a serious and imminent threat to the life or
property of the employers or of other employees like theft or physical injuries, and there is a
need for preventive suspension,17 the employers can immediately suspend the erring
employees for a period of not more than 30 days. Notwithstanding the suspension, the
employers are tasked to comply with the twin notice requirement under the law. The preventive
suspension cannot replace the required notices.18 Thus, there is still a need to comply with the

 twin notice requirement and the requisite hearing or conference to ensure that the employees
are afforded due process even though they may have been caught in flagrante or when the
evidence of the commission of the offense is strong.
On the surface, it would seem that petitioners observed due process (twin notice and hearing
requirement): On February 23, 1999 petitioner notified respondent of the hearing to be
conducted later that day. On the same day before the hearing, respondent was furnished a copy
of an office memorandum which contained a list of his offenses, and a notice of a scheduled
hearing in the afternoon of the same day. The next day, February 24, 1999, he was notified that
his employment with petitioner R.B. Michael Press had been terminated.
A scrutiny of the disciplinary process undertaken by petitioners leads us to conclude that they
only paid lip service to the due process requirements.
The undue haste in effecting respondent's termination shows that the termination process was a
mere simulation the required notices were given, a hearing was even scheduled and held, but
respondent was not really given a real opportunity to defend himself; and it seems that
petitioners had already decided to dismiss respondent from service, even before the first notice
had been given.
Anent the written notice of charges and hearing, it is plain to see that there was merely a
general description of the claimed offenses of respondent. The hearing was immediately set in
the afternoon of February 23, 1999 the day respondent received the first notice. Therefore, he
was not given any opportunity at all to consult a union official or lawyer, and, worse, to prepare
for his defense.
Regarding the February 23, 1999 afternoon hearing, it can be inferred that respondent, without
any lawyer or friend to counsel him, was not given any chance at all to adduce evidence in his
defense. At most, he was asked if he did not agree to render overtime work on February 22,
1999 and if he was late for work for 197 days. He was never given any real opportunity to justify
his inability to perform work on those days. This is the only explanation why petitioners assert
that respondent admitted all the charges.
In the February 24, 1999 notice of dismissal, petitioners simply justified respondent's dismissal
by citing his admission of the offenses charged. It did not specify the details surrounding the
offenses and the specific company rule or Labor Code provision upon which the dismissal was
grounded.
In view of the infirmities in the proceedings, we conclude that termination of respondent was
railroaded in serious breach of his right to due process. And as a consequence of the violation
of his statutory right to due process and following Agabon, petitioners are liable jointly and
solidarily to pay nominal damages to the respondent in the amount of PhP 30,000.19

 WHEREFORE, premises considered, the November 14, 2001 CA Decision in CA-G.R. SP No.
62959, the April 28, 2000 Decision of the NLRC in NLRC NCR CA No. 022433-00, and the
October 29, 1999 Decision of the Labor Arbiter in NLRC Case No. RAB IV-2-10806-99-C are
hereby REVERSED and SET ASIDE. The Court declares respondent's dismissal from
employment VALID and LEGAL. Petitioners are, however, ordered jointly and solidarily to pay
respondent nominal damages in the amount of PhP 30,000 for violation of respondent's right to
due process.
No costs.
SO ORDERED.

FIRST DIVISION
G.R. No. 125606 October 7, 1998
SAN MIGUEL CORPORATION, Petitioner, vs. NATIONAL LABOR RELATIONS
COMMISSION, THIRD DIVISION, and FRANCISCO DE GUZMAN, JR., Respondents.

QUISUMBING, J.:
Before us is the petition for certiorari under Rule 65 of the Revised Rules of Court seeking on
set aside the April 18, 1996 Decision 1 and the May 30, 1996 Resolution 2 of public respondent
National Labor Relations Commission 3 in NLRC CA No. 009490-95. Said decision reversed the
JUne 30, 1995 judgment 4 of the labor Artiber 5 in NLRC-NCR Case No. 00-08-05954-94, and
oredered the reinstatement of private respondent as follows:
WHEREFORE, premises considered, the assiled decision is hereby VACATED and SET ASIDE.
A new one is hereby entered ordering herein respondent San Miguel Corporation to reinstate
complainant to his former position with full backwages from the time he was dismissed from
work until he is actually reinstated without loss of seniority rights and ther benefits, less earning
elsewhere, if any. 6
The facts on record show that in November 1990, private respondent was hired by petitioner as
helper/bricklayer for a specific project, the repair and upgrading of furnace C at its Manila Glass
Plant. His contract of employment provided that said temporary employment was for a specific
period of approximately four (4) months.
On April 30, 1991, private respondent was able to complete the repair and upgrading fo furnace
C. Thus, his services were terminated on that same day as there was no more work to be done.
His employment contract also ended that day.

 On May 10, 1991, private respondent was again hired for a specific job or undertaking, which
involved the draining/cooling down of fuenace F and the emergency repair of furnace E. This
project was for a specific period of approximately three (3) months.
After the complesion of this task, namely the draining/cooling down of furnace F and the
emergency repair of furnace E, at the end of July 1991, private respondent's services were
terminated.
On August 1, 1991, complainant saw his name in a Memorandum posted at the Company's
Bulletin Board as among those who were considered dismissed.
On August 12, 1994, or after the lapse of more than three (3) years from the completion of the
last undertaking for which private respondent wa hired, private respondent filed a complaint for
illegal dismissal against petitioner, docketed as NLRC NCR Case No. 08-05954-94. 7
Both parties submitted their respective position papers, reply and rejoinder to labor Arbiter
Felipe Garduque II. On JUne 30, 1995, he rendered the decision dismissing said complaint for
lack of merit. In his ruling Labor Arbiter Garduque sustained petitioner's argument that private
respondent was a project employee. The position of a helper does not fall within the
classification of regular employees. Hence, complainant never attained regular employment
status. Moreover, his silence for more than three (3) years without any reasonable explanation
tended to weken his claim. 8
Not satisfied with the decision, private respondent interposed his appeal with public respondent
NLRC on August 8, 1995 Petitioner filed its opposition thereto on August 29, 1995.
On April 18, 1996, public respondent NLRC, promulgated its assailed decision, reversing Labor
Arbiter Garduque's decision. In its ruling, public respondent made the following findings:
Respondent scheme of subsequently re-hiring complainant after only ten (10) days from the last
day of the expiration of his contract of employment for a specific period, and giving him again
another contract of employment for another specific period cannot be countenanced. This is one
way of doing violence to the employee's constitutional right to security of tenure under which
even employees under probationary status are amply protected.
Under the circumstances obtaining in the instant case we find that herein complainant was
indeed illegally dismissed. Respondent failed to adduce substantial evidence to prove that
Francisco de Guzman, Jr. was dismissed for a just or authorized cause and after due process.
The only reason they advance is that his contract of employment which is for a specific period
had already expired. We, however, find this scheme, as discussed earlier, no in accordance with
law. 9
Petitioner then moved for the reconsideration of said decision. This was however denied by
public respondent on May 30, 1996 as it found no cogent reason, or patent or palpable error,
that would warrant the disturbance of the decision sought to be reconsidered.

 Hence, this petition, based on the following grounds:

1. RESPONDENT NLRC GRAVELY ABUSED ITS DISCRETION IN FAILING TO RULE THAT
PRIVATE RESPONDENT IS A PROJECT OR A FIXED PERIOD EMPLOYEE.
2. RESPONDENT NLRC GRAVELY ABUSED ITS DISCRETION IN RULING THAT
PETITIONER VIOLATED PRIVATE RESPONDENT'S RIGHT TO SECURITY OF TENURE AND
THAT PRIVATE RESPONDENT WAS ILLEGALLY DISMISSED.
3. RESPONDENT NLRC GRAVELY ABUSED ITS DISCRETION IN RULING THAT LACHES
OR SILENCE OR INACTION FOR AN UNREASONABLE LENGTH OF TIME DID NOT BAR
PRIVATE RESPONDENT'S CLAIM.
Given these ground, this petition may be resolved once the following issues are clarified: (a)
What is tile nature of the employment of private respondent, that of a project employee or a
regular employee? and (b) Was he terminated legally or dismissed illegally?
As a general rule the factual findings and conclusions drawn by the National Labor Relations
Commission are accorded not only great weight and respect, but even clothed with finality and
deemed binding on the Court, as long as they are supported by substantial evidence. However,
when such findings and those of the Labor Arbiter are in conflict, it behooves this Court to
scrutinize the records of the case, particularly the evidence presented, to arrive at a correct
decision. 10
Art. 280 of the Labor Code defines regular, project and casual employment as follows:
Art. 280. Regular and Casual Employment. - The provisions of written agreement to the contrary
notwithstanding and regardless of the oral agreement of one parties, an employment shall be
deemed to be regular where the employee has been engaged to perform activities which are
usually necessary or desirable in the usual business or trade of the employer, except where the
employment has been fixed for a specific project or undertaking the completion or termination of
which has been determined at the time of the engagement of the employee or where the work
or services to be performed is seasonal in nature and the employment is for the duration of the
season.
An employment shall be deemed to be casual if it is not covered by the preceding paragraph:
Provided, That, any employee who has rendered at least one year of service, whether such
service is continuous or broken, shall be considered a regular employee with respect to the
activity in which he is employed and his employment shall continue while such actually exists.
The above mentioned provision reinforces the Constitutional mandate to protect the interest of
labor as it sets the legal framework for ascertaining one's nature of employment, and
distinguishing different kinds of employees. Its language manifests the intent to safeguard the
tenurial interes of worker who may be denied the enjoyment of the rights and benefits due to an
employee, regardless of the nature of his employment, by virtue of lopsided agreements which

 the economically powerful employer who can maneuver to keep an employee on a casual or
contractual status for as long as it is convenient to the employer.
Thus, under Article 280 of the Labor Code, an employment is deemed regular when the
activities performed by the employee are usually necessary or desirable in the usual business or
trade of the employer even if the parties enter into an agreement tating otherwise. But
considered not regular under said Article (1) the so-called "project employment" the termination
of which is more or less determinable at the time of employment, such as those connected,
which by its nature is only for one season of the year and the employment is limited for the
duration of that season, such as the Christmas holiday season. Nevertheless, an exception to
this exception is made: any employee who has rendered at least one (1) year of service,
whether continuous or intermitent, with respect to the activity he performed and while such
activity actually exists, must be deemed regular.
Following Article 280, whether one is employed as a project employee or not would depend on
whether he was hired to carry out a "specific project or undertaking", the duration and scope of
which were specified at the time his services were engaged for that particular project. 11 Another
factor that may be undertaken by the employee in relation to the usual trade or business of the
employer, if without specifying the duration and scope, the work to be undertaken is usually
necessary or desirable in the usual business or trade of the employer, then it is regular
employment and not just "project" must less "casual" employment.
Thus, the nature of one's employment does not depend on the will or word of the employer. Nor
on the procedure of hiring and the manner of designating the employee, but on the nature of the
activities to be performed by the employee, considering the employer's nature of business 12 and
the duration and scope of the work to be done.
In ALU-TUCP vs NLRC, 13 this Court discussed two types of projects:
In the realm of business and industry, we note that project could refer to one or the other of at
least two (2) distinguishable types of activities. Firstly, a project could refer to a particular job or
undertaking that is within the regular or usual business of the employer company, but which is
distinct at separate, and identifiable as such, from the other undertakings of the company. Such
job or undertaking begins and ends at determined or determinable times. . . .
The term project could also refer to, secondly, a particular job or undertaking that is not within
the regular business of the corporation. Such a job or undertaking must also be identifiably
separate and distinct from the ordinary or regular business operations of the employer. The job
or undertaking also begins and ends at determined or determinable times . . . (Underscoring
supplied)
Public respondent NLRC's findings that herein private respondent is a regular employee is
erraneous as the latter's employment clearly falls within the definition of "project employees"

 under paragraph 1 of Article 280 of the Labor Code and such is a typical example of the second
kind of project employment in the ALU TUCP case discussed above
Note that the plant where private respondent was employed for only even months is engaged in
the manufacturer of glass, an integral component of the packaging and manufacturing business
of petitioner. The process of manufacturing glass requires a furnace, which has a limited
operating life. Petitioner resorted to hiring project or fixed term employees in having said
furnaces repaired since said activity is not regularly performed. Said furnaces are to be repaired
or overhauled only in case of need and after being used continuously for a varying period of five
(5) to ten (10) years.
In 1990, one of the furnaces of petitioner required repair and upgrading. This was a undertaking
distinct and separate from petitioner's business of manufacturing glass. For this purpose,
petitioner must hire workers to undertake the said repair and upgrading. Private respondent
was, thus, hired by petitioner on November 28, 1990 on a "temporary status for a specific job"
for a determined period of approximately four months
Upon completion of the undertaking, or on April 30, 1991, private respondent's services were
terminated. A few days, thereafter, two of petitioner's furnaces required "draining/coolong down"
and "emergency repair". Private respondent was again hired on May 10, 1991 to help in the new
undertaking, which would take approximately three (3) months to accomplish. Upon completion
of the second undertaking, private respondent's services were likewise terminated. 14 He was
not hired a third time, and his two engagements taken together did not total one full year in
order to qualify him as an exception to the exception falling under the cited proviso in the
second paragraph of Art. 280 of the Labor Code.
Clearly, private respondent was hired for a specific project that was not within the regular
business of the corporation. For petitioner is not engaged in the business of repairing furnaces.
Although the activity was necessary to enable petitioner to continue manufacturing glass, the
necessity therefor arose only when a particular furnace reached the end of its life or operating
cycle. Or, as on the second undertaking, when a particular furnace required an emergency
repair. In other words, the undertakings where private respondent was hired primarily as helper/
bricklayer have specified goals and purpose which are fulfilled once the designated work was
completed. Moreover, such undertakings were also identifiably separate and distinct from the
usual, ordinary or regular business operations of petitioner, which is glass manufacturing. Thses
undertakings, the duration and scope of which had been determined and made known to private
respondent at the time of his employment clearly indicated the nature of his employment as a
project employee. Thus, his services were terminated legally after the completion of the project.
15

 Public respondent NLRC's decision, if upheld, would amount to negating the distinction made in
Article 280 of the Labor Code. It would shunt aside the rule that since a project employee's work
defends on the availability of a project, necessarily, the duration of his employment is
coterminous with the project to which he is assigned. 16 It would become a burden for an
employer to retain an employee and pay him his corresponding wages it there was no project
for him to work on. Well to remember is the language of the Court in the case of Mamansag vs.
NLRC: 17
While the Constitution is committed to the policy of social justice and the protection of the
working class, it should not be supposed that every dispute will be automatically decided in
favor of labor. Management has also rights, which, as such, are entitled to respect and
enforcement in the interest of fair play. Although the Supreme Court has inclined more often
than not toward the worker and has upheld has cause in his conflicts with the employer, such
favoritism has no blinded the Court to the rule that justice is in avery case for the deserving, to
be dispensed in the light of the established facts and the applicable law and doctrine.
Considering that private respondent was a project employee whose employment, the nature of
which he was fully informed, related to a specific project, work or undertaking, we find that the
Labor Arbiter correctly ruled that said employment legally ended upon completion of said
project. Hence the tremination of his employment was not tantamount to an illegal dismissal;
and it was a grave abuse of discretion on public respondent's part to order his reinstatement by
petitioner.
WHEREFORE the instant petition is hereby GRANTED. The decision of respondent NLRC is
hereby REVERSED, and the judgment of the Labor Arbiter REINSTATED.
NO COSTS.
SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 168215 June 9, 2009
LBC EXPRESS - METRO MANILA, INC. and LORENZO A. NIÑO, Petitioners,
vs.
JAMES MATEO, Respondent.
DECISION
CORONA, J.:

 Respondent James Mateo, designated as a customer associate, was a regular employee of

petitioner LBC Express – Metro Manila, Inc. (LBC). His job was to deliver and pick-up packages
to and from LBC and its customers. For this purpose, Mateo was assigned the use of a
Kawasaki motorcycle.1
On April 30, 2001 at about 6:10 p.m., Mateo arrived at LBC’s Escolta office, along Burke Street,
to drop off packages coming from various LBC airposts. He parked his motorcycle directly in
front of the LBC office, switched off the engine and took the key with him. However, he did not
lock the steering wheel because he allegedly was primarily concerned with the packages,
including a huge sum of money that needed to be immediately secured inside the LBC office.
He returned promptly within three to five minutes but the motorcycle was gone. He immediately
reported the loss to his superiors at LBC and to the nearest police station.
LBC, through its vice-president petitioner, Lorenzo A. Niño, directed Mateo to appear in his
office to explain his side and for formal investigation.2 As directed, Mateo appeared and
presented his side. After investigation, he received a notice of termination from LBC dated May
30, 2001.3 He was barred from reporting for work.
Mateo thereafter filed a complaint for illegal dismissal, payment of backwages and
reinstatement with damages. After the parties submitted their respective position papers, the
labor arbiter found Mateo’s dismissal to be lawful on the ground that he was grossly negligent.4
Mateo appealed to the National Labor Relations Commission which, however, affirmed the labor
arbiter’s decision.5
In resolving Mateo’s petition for certiorari, the Court of Appeals (CA) ruled that Mateo was
illegally dismissed.6 Furthermore, due process was not observed in terminating Mateo’s
employment with LBC. The motion for reconsideration was denied.
LBC and Niño now seek a reversal of the CA decision. They contend that Mateo was grossly
negligent in the performance of his duties and that habituality may be dispensed with, specially
if the grossly negligent act resulted in substantial damage to the company.
We agree.
The services of a regular employee may be terminated only for just or authorized causes,
including gross and habitual negligence under Article 282, paragraph (b) of the Labor Code.
Gross negligence is characterized by want of even slight care, acting or omitting to act in a
situation where there is a duty to act, not inadvertently but willfully and intentionally with a
conscious indifference to consequences insofar as other persons may be affected.7
Mateo was undisputedly negligent when he left the motorcycle along Burke Street in Escolta,
Manila without locking it despite clear, specific instructions to do so. His argument that he
stayed inside the LBC office for only three to five minutes was of no moment. On the contrary, it
only proved that he did not exercise even the slightest degree of care during that very short

 time. Mateo deliberately did not heed the employer’s very important precautionary measure to
ensure the safety of company property. Regardless of the reasons advanced, the exact evil
sought to be prevented by LBC (in repeatedly directing its customer associates to lock their
motorcycles) occurred, resulting in a substantial loss to LBC.
Although Mateo’s infraction was not habitual, we must take into account the substantial amount
lost.8 In this case, LBC lost a motorcycle with a book value of ₱46,000 which by any means
could not be considered a trivial amount. Mateo was entrusted with a great responsibility to take
care of and protect company property and his gross negligence should not allow him to walk
away from that incident as if nothing happened and, worse, to be rewarded with backwages to
boot.
An employer cannot legally be compelled to continue with the employment of a person
admittedly guilty of gross negligence in the performance of his duties.9 This holds true specially
if the employee’s continued tenure is patently inimical to the employer’s interest.1avvphi1 What
happened was not a simple case of oversight and could not be attributed to a simple lapse of
judgment. No amount of good intent, or previous conscientious performance of duty, can
assuage the damage Mateo caused LBC when he failed to exercise the requisite degree of
diligence required of him under the circumstances.1awphi1
LBC and Niño likewise assail the CA’s finding that procedural due process was not observed in
effecting Mateo’s dismissal. Specifically, the CA held that the first written notice (for Mateo’s
investigation) allegedly did not specify the grounds for termination required by the implementing
rules of the Labor Code. Mateo was allegedly not properly apprised of the grounds for his
investigation. We disagree.
The memorandum directing Mateo to be present for investigation clearly provided the reasons
or grounds for Mateo’s investigation. As stated there, the grounds were the "alleged carnapping
of the motorcycle and the alleged pilferage of a package." Nothing could be clearer. What the
law merely requires is that the employee be informed of the particular acts or omissions for
which his dismissal is sought.10 The memorandum did just that. Mateo was thereafter given the
opportunity to explain his side and was handed the requisite second notice (of termination).
Procedural due process was therefore complied with.
The law protecting the rights of the employee authorizes neither oppression nor self-destruction
of the employer.11 All told, Mateo’s dismissal was for just cause and was validly carried out.
WHEREFORE, the petition is hereby GRANTED. The decision of the Court of Appeals dated
February 18, 2005 and resolution dated May 23, 2005 in CA-G.R. SP No. 86034 are
REVERSED and SET ASIDE. The complaint for illegal dismissal is hereby DISMISSED.
SO ORDERED.