FIRST
DIVISION
FILFLEX
INDUSTRIAL
& MANUFACTURING CORPORATION
AND/OR CELIA
BUENCONSEJO,
Petitioner,
G.
R.
No. 115395
February
12, 1998
-versus-
NATIONAL
LABOR
RELATIONS
COMMISSION,
NATIONAL
FEDERATION
OF LABOR UNIONS [NAFLU]
AND SALUD
GALING,
Respondents.
D
E C I S I
O N
PANGANIBAN,
J :
Is an employee entitled
to back wages during the pendency of her appeal before the NLRC, even
if
the assailed Labor Arbiter's Decision did not order her reinstatement?
May the NLRC decree back wages where the employee's dismissal was legal?
The Case
The Court answers these
questions in the negative in granting this Petition for Certiorari
under
Rule 65 of the Rules of Court assailing the October 29, 1993 Resolution[1]
of the National Labor Relations Commission[2]
[NLRC] which disposed as follows:[3]
"WHEREFORE, the
assailed
Decision is hereby set aside and a new one is entered dismissing the
complaint
for lack of merit.
However, respondents
[petitioners herein] are ordered to pay complainant [private respondent
herein] her salaries from the date of the filing of the instant appeal
on April 10, 1992 up to the date of the promulgation of this Resolution
pursuant to Art. 223 of the Labor Code, as amended."
Petitioners also challenge
the NLRC's Resolution dated February 7, 1994 which denied their
subsequent
motion for reconsideration, for lack of merit.
The Labor Arbiter's
Decision, which the NLRC set aside, in NLRC NCR Case No. 00-02-01060-91
dated March 10, 1992 disposed as follows:[4]
"WHEREFORE, based on
the foregoing considerations, judgment is hereby rendered declaring the
dismissal of complainant improper and unjust. Accordingly, respondent
is
hereby ordered to pay the complainant limited backwages and other
benefits
for six [6] months in the amount of P18,252.00.
"Considering,
however,
the physical condition of the complainant that was the real cause of
her
absences and tardiness, it would be to their mutual advantage and most
importantly to the physical and health welfare of complainant that she
is separated from the service with separation benefits equivalent to
1/2
month basic salary for every year of service, a fraction of six (6)
months
equivalent to one year in the amount of P22,815.00.
"The charge of unfair
labor practice is hereby denied for lack of legal basis.
"Individual
respondent
Celia Buenconsejo is hereby absolved of any liability for she acted
only
in her official capacity.
Other claims are
denied
for lack of merit."
The Facts
Labor Arbiter Daniel
C. Cueto recited the facts of this case as follows:[5]
"Complainant is a
sewer
who started working with respondent in November 1975. She was dismissed
for abandonment on February 11, 1991. At the time of her dismissal, she
was receiving a salary of P117.00 per day of work. She claimed that
while
it is true that she was absent from November 30, 1990 up to December
11,
1990, her dismissal on ground of abandonment is not in consonance with
law considering that her absences was [sic] attributable to chronic
ashmatic
[sic] bronchitis which she contacted since early 1990 yet. She
presented
as evidence the medical certificate dated March 4, 1991 attesting for
[sic]
her medical treatment covering the period January 1990 to May 28, 1990.
She claims that her failure to report for work for 11 days was due to
sickness
wherein respondents were notified by her through the telephone.
Complainant
argued that she did not abandon her job and that is evidenced by her
immediate
filing of instant complaint on February 8, 1991. Her 16 years of
service,
according to complainant, should have been considered by respondents
before
she was dismissed. She prays for reinstatement plus backwages and also
for damages.
"Respondents
contended
otherwise. It is their position that complainant was hired on February
5, 1978 and that since the early period of her employment, she
committed
various violations of company rules and regulations ranging from
habitual
tardiness to frequent absences. Said misdemeanor registered the highest
number of tardiness in the second quarter of 1984 numbering 45 times
from
37 times in the first quarter of 1984 whereas in terms of monthly
tardiness,
complainant incurred 21 times in March and June, both in 1990 the said
tardiness covered by corresponding memoranda marked as Annexes 'A' to
'L'
for respondents, that despite the several warnings given, complainant
persisted
in her tardiness and frequent absences. By way of evidence, respondent
submitted the memorandum [Annex 'O'] giving complainant the stern
warning
for frequent absenteeism incurred in 1988 numbering 49 absences that
affects
her performance where the same became worse when she absented for ten
[10]
days in August 1989, which was the subject of another memorandum
warning
that management shall be constrained to take the necessary drastic
action
against her due to loss of productive manhours caused by complainant's
excessive absences. Finally, due to complainant's absences from
November
30, 1990 to December 11, 1990 the respondent issued another letter
dated
December 11, 1990 to complainant [Annex 'R' Respondent's Position
Paper]
requiring her to explain in writing within 72 hours 'why you should not
be considered dismissed for having abandoned your job considering that
you have been earlier served warning memos for the similar violations.
Respondents stated that despite the said order, it was only on December
19, 1990 that complainant went to the office of respondent to explain.
Respondents were forced to terminate complainant's employment due to
her
failure to report for work and explain her absence for the straight 20
days without any leave or permission for which reason they considered
her
continued absence as an abandonment of work."
Declaring "the dismissal
of complainant improper and unjust," the Labor Arbiter awarded her
"limited
backwages and other benefits" plus separation pay equivalent to one
half
month for every year of service. The Labor Arbiter did not order her
reinstatement
holding that her separation from employment would be to the parties'
"mutual
benefit and most importantly to the physical and health welfare of
complainant."
Respondent
NLRC's
Ruling
On appeal, Respondent
NLRC ruled that the dismissal of private respondent was justified. It
held,
however, that Article 223 of the Labor Code required the reinstatement
of private respondent during the pendency of her appeal. Thus, it
awarded
back wages for the said period when the appeal was pending before it,
reasoning
as follows:[6]
"Verily,
respondents-appellants
could no longer be faulted when they decided to terminate the services
of complainant for her failure to improve her attendance despite
repeated
warnings.
However, pursuant to
Art. 223 of the Labor Code, as amended, which provides for mandatory
reinstatement
whether actual or on payroll, pending appeal, respondent should pay
complainant
her salaries from the time the appeal was filed on April 10, 1992 up to
the date of the promulgation of this Resolution."
Dissatisfied, petitioners
lodged this recourse before this Court. In the Resolution[7]
dated June 29, 1994, this Court issued a temporary restraining order
thus:[8]
"NOW, THEREFORE, you
[respondents], your officers, agents, representatives, and/or persons
acting
upon your orders or in your place or stead, are hereby ENJOINED from
enforcing
or executing the resolutions of public respondent National Labor
Relations
Commission dated October 29, 1993 and February 8, 1994, and in any
manner
or purpose continuing with the proceedings of the case in NLRC NCR Case
No. 00-02-01060-91 entitled 'National Federation of Labor Unions
[NAFLU]
and Salud Galing vs. Filflex Industrial and Manufacturing Corporation
and/or
Celia Buenconsejo' of the Department of Labor and Employment."[9]
The Issue
Petitioners raise a
single issue:[10]
"Petitioners submit
that the only issue is whether the public respondent NLRC committed
grave
abuse of discretion, amounting to lack of jurisdiction, in awarding
private
respondent Galing her salaries from the date of the filing of the
appeal
on April 10, 1992 up to the date of the promulgation of its Resolution
on October 29, 1993, given the undisputed fact of her persistent,
repeated,
prolonged and contumacious violations of company rules and regulations."
The Court's
Ruling
The petition is
meritorious.
Sole
Issue
: Back wages During Pendency of AppealPetitioners argue that
the "second paragraph of the dispositive portion of the Decision[11]
has no basis in fact or in law." They assert that "the Decision of
Labor
Arbiter Cueto did not call for the reinstatement of [C]omplainant
Galing
[private respondent herein], [thus] it follows that there is no basis
now
for this Honorable Commission to grant her backwages during the period
of appeal. Clearly, Article 223 finds no application to the instant
case."[12]
They also contend that the assailed Resolution "became inconsistent
with
itself. For while it declared the dismissal of the complainant legal,
it
ruled nevertheless that [C]omplainant Galing should have been
reinstated
during the period of appeal."[13]
Agreeing with the
Petition,
the Solicitor General clarifies that Article 223 of the Labor Code is
inapplicable
to the instant case because Labor Arbiter Cueto "did not order the
reinstatement
of private respondent." Likewise, the government lawyer agrees that the
NLRC Resolution was inherently inconsistent for holding that the
dismissal
of complainant Galing was justified and, at the same time, ruling that
she should have been reinstated during the pendency of the appeal.[14]
On the other hand,
the legal department of the NLRC[15]
maintains that "reinstatement [pending appeal] whether actual or in
payroll
is mandatory under Art. 223 of the Code."[16]
Private respondent
adds that under paragraph one, second sentence of the Labor Arbiter's
Decision,
"there [was] a call for reinstatement of the complainant because of the
backwages granted to her."[17]
We agree with the
petitioners
and the Solicitor General.
No Order of
Reinstatement
The relevant law is
Article 223[18]
of the Labor Code which reads:
"Art. 223. Appeal.
- Decisions, awards, or orders of the Labor Arbiter are final and
executory unless appealed to the Commission by any or both parties
within
ten (10) calendar days from receipt of such decisions, awards, or
orders.
Such appeal may be entertained only on any of the following grounds:
xxx
In any event, the
decision
of the Labor Arbiter reinstating a dismissed or separated employee,
insofar
as the reinstatement aspect is concerned, shall immediately be
executory,
even pending appeal. The employee shall either be admitted back to work
under the same terms and conditions prevailing prior to his dismissal
or
separation or, at the option of the employer, merely reinstated in the
payroll. The posting of a bond by the employer shall not stay the
execution
for reinstatement provided herein." [Emphasis supplied].
In other words,
reinstatement
during appeal is warranted only when the Labor Arbiter [LA] himself
rules
that the dismissed employee should be reinstated. In the present case,
neither the dispositive portion nor the text of the labor arbiter's
decision
ordered the reinstatement of private respondent. Further, the back
wages
granted to private respondent were specifically limited to the period
prior
to the filing of the appeal with Respondent NLRC. In fact, the LA's
decision
ordered her separation from service for the parties' "mutual advantage
and most importantly to the physical and health welfare of
complainant."
Hence, it is an error and an abuse of discretion for the NLRC to hold
that
the award of limited back wages, by implication, included an order for
private respondent's reinstatement.
An order for
reinstatement
must be specifically declared and cannot be presumed. Like back wages,
it is a separate and distinct relief given to an illegally dismissed
employee.[19]
There being no specific order for reinstatement and the order being for
complainant's separation, there can be no basis for the award of
salaries/back
wages during the pendency of appeal.
NLRC Found
Dismissal
Justified
In addition to the
foregoing discussion, there is an equally cogent reason to sustain the
petition. Before reinstatement or back wages may be granted, there must
be unjust or illegal dismissal from work.[20]
The Labor Arbiter ruled that private respondent's "absences and
tardiness
by itself are sufficient ground for the complainant's dismissal were it
not for reason of sickness which we believe is excusable."[21]
On appeal, however, the NLRC categorically declared that private
respondent's
dismissal was wholly justified because her performance was
characterized
by inefficiency, infractions and absenteeism.[22]
Indeed, the records substantiate the following findings of the NLRC:
"It was sufficiently
established that complainant's absences from November 11, 1990 until
December
18, 1990 are unauthorized. She never informed the respondent of her
whereabouts
which naturally worked to the prejudice to her work. Complainant's
assertion
that she called-up the respondent by telephone, informing them of state
of illness is a bare allegation, unsupported by convincing evidence.
This
[sic] unauthorized absences left no alternative to the respondent but
to
seek her explanation on the matter [Rollo, p. 48]. Complainant, however
did not bother to explain within a reasonable period of time and she
only
showed-up in the respondent's office on December 19, 1990.
xxx
"In this particular,
complainant's attitude toward her work is characterized by infractions
and inefficiency. It is undisputed that besides her unauthorized
absences
from November 11, 1990 to December 18, 1990, she previously incurred
various
offenses. She was frequently late in reporting for work during the
following
period:
First Quarter of
1984
— 37 times
Second Quarter of
1984
— 45 times
First Quarter of
1985
— 18 times
January 1987 — 8
times
February 1987 — 8
times
March 1987 — 13
times
April 1987 — 6
times
May 1987 — 13
times
June 1987 — 19
times
July 1987 — 11
times
August 1987 — 7
times
October 1987 — 13
times
November 1987 —
17
times
December 1987 —
19
times
January 1988 — 13
times
February 1988 —
15
times
March 1988 — 9
times
April 1988 — 3
times
May 1988 — 10
times
January 1990 — 11
times
March 1990 — 21
times
April 1990 — 16
times
May 1990 — 19
times
June 1990 — 21
times
"Evidence likewise
disclosed that complainant was absent for 10 days during the month of
August
1989 and incurred absences without leave on October 6 and 7, 1989,
(Rollo,
p. 46 to 47). The foregoing infractions show the unsatisfactory work
performance
of complainant. In the case of Mendoza vs. NLRC, 196 SCRA 606, the
Supreme
Court held that 'the totality of the infractions that petitioner had
committed
justifies the penalty of dismissal.' Furthermore, complainant was duly
informed of the company rules on absences to the fact that a 7th
absence
within a calendar year constitute habitual unexcused absence. [Rollo,
p.
44]. Instead, however, of improving her attendance, complainant
continuously
ignored the warnings given her by the respondent. This finds support in
the findings of the Labor Arbiter when [sic] ruled that:
'All that we can
see
from the parties pleadings is the fact that complainant have [sic] been
incurring tardiness and absences and that despite numerous warnings
sent
to her in fact numbering 16 all in all from 1989 to 1990, she still
persist
in incurring absences and tardiness. She had not shown enough
improvement
on her attendance the last of which was her absences incurred from
November
30, 1990 to December 19, 1990 without any justification presented
relative
to the said absences except the reliance to the Certification of her
attending
physician which was dated March 4, 1991 that she was under treatment of
the said doctor from 'chronic ashtmatic [sic] bronchitis',
covering the period January 19, 1990 to May 28, 1990. While it may be
true
that complainant was suffering from the alleged sickness, her absences
incurred during the period November 30, 1990 up to the time when she
reported
to explain on December 19, 1990 was not supported by competent proof to
rely on.'
Since
the dismissal of
private respondent was deemed valid, she cannot be entitled to
reinstatement
and back wages.[23]
An award of back wages by the NLRC during the period of appeal is
totally
inconsistent with its finding of a valid dismissal.
Additionally, private
respondent cannot now be granted separation pay or any other
affirmative
relief previously awarded to her by the Labor Arbiter but reversed by
the
NLRC. Since she did not appeal from the NLRC's Resolution, she is
presumed
to be satisfied with the adjudication therein. This is in accord with
the
doctrine that a party who has not appealed cannot obtain from the
Appellate
Court any affirmative relief other than the ones granted in the
appealed
decision.[24]
WHEREFORE, the Petition
is hereby GRANTED. The award of back wages in the assailed NLRC
Resolution
dated October 29, 1993 is DELETED. The temporary restraining order
issued
on June 29, 1994 is MADE PERMANENT. No costs.
SO ORDERED.
Davide, Jr.,
Bellosillo,
Vitug and Quisumbing, JJ., concur.
________________________
Endnotes:
[1]
In NLRC NCR CA No. 003258-92; rollo, pp. 26-34.
[2]
Second Division composed of Pres. Comm. Edna Bonto-Perez, ponente;
Comm.
Domingo H. Zapanta and Rogelio I. Rayala, concurring.
[3]
Rollo, p. 33.
[4]
Rollo, p. 25.
[5]
Rollo, pp. 16-19; LA's decision, pp. 1-4.
[6]
Rollo, pp. 29-33; Resolution of October 29, 1993, pp. 4-8.
[7]
Issued by the First Division.
[8]
Rollo, pp. 156-157.
[9]
This case was deemed submitted for resolution on April 14, 1997 upon
this
Court's receipt of private respondent's memorandum.
[10]
Rollo, p. 8; Petition, p. 7.
[11]
Should be "Resolution."
[12]
Rollo, pp. 250-251; Petitioners' Memorandum, pp. 8-9.
[13]
Rollo, p. 252; Petitioners' Memorandum, p. 10.
[14]
Rollo, pp. 193-194; Solicitor General's Manifestation and Motion in
Lieu
of Comment, pp. 5-6.
[15]
Represented by Atty. Edgardo M. Tamoria [now deceased].
[16]
Rollo, p. 223; Respondent NLRC's Comment, p. 5.
[17]
Rollo, p. 272; Private Respondent's Memorandum, p. 6.
[18]
As amended by Section 12 of RA 6715.
[19]
Article 279 of the Labor Code; Gold City Integrated Port Service, Inc.
vs. National Labor Relations Commission, 245 SCRA 627, July 6, 1995.
[20]
Gold City Integrated Port Service, Inc. vs. National Labor Relations
Commission,
supra, at pp. 638-639; Torillo vs. Leogardo, 197 SCRA 471, May 27,
1991;
Indophil Acrylic Mfg. Corp. vs. NLRC, 226 SCRA 723, September 27, 1993.
[21]
Rollo, p. 24; LA's Decision, p 9.
[22]
Citing Mendoza vs. NLRC, 195 SCRA 606, March 22, 1991.
[23]
Lausa vs. National Labor Relations Commission, 187 SCRA 299, July 9,
1990.
[24]
SMI Fish Industries vs. National Labor Relations Commission, 213 SCRA
444,
September 2, 1992. See also Caliguia vs. National Labor Relations
Commission,
264 SCRA 110, November 13, 1996; Teodoro vs. Court of Appeals, 258 SCRA
603, July 11, 1996; Carrion vs. Court of Appeals, 260 SCRA 862, August
22, 1996. |