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KAKAMPI and ITS MEMBERS,VICTOR PANUELOS, et al., represented by DAVID DA ALO, KAKAMPI VICE PRESIDENT and ATTORNE !IN!

"ACT V. KIN#SPOINT E$PRESS and LO#ISTIC and%&r MAR ANN CO. April 25, 2012 RE ES, J.' This is a petition for review under Rule 45 of the Rules of Court of the Amended Decision [1 dated !arch 1", 2010 and Resolution[2 dated Decem#er 1", 2010 of the Court of Appeals $CA% in CA&'(R( )* +o( 10"5,1( -ictor *a.uelos $*a.uelos%, /o##0 Dacara $Dacara%, Alson Di1on $Di1on%, )ald0 Dima#a0ao $Dima#a0ao%, 2ernando 3upan4co, 5r( $3upan4co%, )and0 *a1i $*a1i%, Camilo Ta#aran4ao, 5r( $Ta#aran4ao%, 6duardo 7i1ole $7i1ole% and Re4inald Carillo $Carillo% were the former drivers of 8in4spoint 69press and 3o4istic $8in4spoint 69press%, a sole proprietorship re4istered in the name of !ar0 Ann Co $Co% and en4a4ed in the #usiness of transport of 4oods( The0 were dismissed from service on 5anuar0 20, 200" on the 4rounds of serious misconduct, dishonest0, loss of trust and confidence and commission of acts inimical to the interest of 8in4spoint 69press( *rior thereto, 8in4spoint 69press issued separate notices to e9plain to the individual petitioners on 5anuar0 1", 200", uniforml0 statin4 that: R6: C7AR'6) ;2 D<)7;+6)T= )6R<;>) !<)C;+D>CT ? 3;)) ;2 C;+2<D6+C6

Dear !r( Dacara: =ou are here#0 formall0 char4ed with D<)7;+6)T=, )6R<;>) !<)C;+D>CT, 3;)) ;2 C;+2<D6+C6, and acts inimical to the compan0, #0 filin4 with the +ational 3a#or Relations Commission $+3RC% false, malicious, and fa#ricated cases a4ainst the compan0( 2urther, 0our refusal to under4o dru4 testin4 is unwarranted and a4ainst compan0 polic0( *lease su#mit 0our answer or e9planation to the fore4oin4 char4es within fort0&ei4ht $4@% hours [from receipt hereof( =our failure to do so would mean that 0ou waive 0our ri4ht to su#mit 0our answer( =ou ma0 liAewise opt for a formal investi4ation with the assistance of counsel, or proceed with the investi4ation as 0ou ma0 choose( <n the meantime, 0ou are place[d under preventive suspension for thirt0 $B0% da0s effective on 5anuar0 1", 200"( =ou are ph0sicall0 #arred from compan0 premises while the preventive suspension e9ists[( [B The individual petitioners failed to su#mit their written e9planation within the stated period( )u#seCuentl0, 8in4spoint 69press issued to them separate 0et uniforml0 worded notices on 5anuar0 20, 200", informin4 them of their dismissal( 8in4spoint 69press e9pressed its decision in this wise: ;n 5anuar0 1", 200", 0ou were formall0 char4ed with D<)7;+6)T=, )6R<;>) !<)C;+D>CT and 3;)) ;2 C;+2<D6+C6 and ACT) <+<!<CA3 T; T76 C;!*A+= #ased on the followin4 acts: 1( 2A/R<CAT<;+ ;2 /A)636)) !;+6= C3A<!) a4ainst the compan0D

2( !<)36AD<+' 2633;E C;&E;R86R) to si4n the !A3<C<;>) C;!*3A<+T 2;R !;+6= C3A<!) a4ainst the compan0D B( R62>)A3 T; >+D6R'; T76 C;!*A+=F) '6+6RA3 DR>' T6)T[D

4( 6GT;RT<+' !;+6= 2R;! C;&E;R86R) T; 2>+D ACT<-<T<6) T7AT T76= E6R6 +6-6R 2>33= <+2;R!6D ;2D =ou were 4iven two $2% da0s to respond to these char4es, #ut 0ou failed to do [so ([4 <n addition to the fore4oin4, Dacara was dismissed for consummatin4 his se9ual relations with one of CoFs household helpers inside CoFs residence thus impre4natin4 her([5 A complaint for ille4al dismissal was su#seCuentl0 filed, alle4in4 that the char4es a4ainst them were fa#ricated and that their dismissal was prompted #0 8in4spoint 69pressF aversion to their union activities( <n a Decision[" dated April 2B, 200H, 3a#or Ar#iter Cresencio '( Ramos, 5r( $3A Ramos% found Dacara, 3upan4co, *a1i, Ta#aran4ao, 7i1ole and Carillo ille4all0 dismissed( ;n the other hand, the complaint was dismissed insofar as *anuelos, Di1on and Dima#a0ao are concerned as the0 were deemed not to have filed their position papers( Ehile the alle4ation of anti&unionism as the primordial motivation for the dismissal is considered unfounded, the respondents failed to prove that the dismissal was for a Iust cause( The pertinent portion of the decision reads:

2rom a perusal and e9amination of the pieces of evidence adduced #0 the respondents in support of their defense, this ;ffice finds the same as not #ein4 sufficient and su#stantial to esta#lish the char4es of serious misconduct and #reach of trust( Consider the followin4: ;n the complainantsF alleged refusal to under4o the compan0Fs 4eneral dru4 testin4, the same is e9plicitl0 nothin4 #ut anunsubstantiated allegation, therefore, undeservin4 of Iudicial and Cuasi&Iudicial co4ni1ance( ;n the alleged act of the complainants in e9tortin4 mone0 from co&worAers to fund activities that the0 were not full0 informed of as well as the alleged misleadin4 of co&worAers to si4n Jmalicious mone0 claimsK a4ainst the compan0, it is to #e noticed that respondentsF support or evidence thereto are the Ioint affidavit of drivers and helpers as well as that of one Ronie Di1on( ;n said pieces of evidence, this ;ffice could not4ive much pro#ative or evidentiar0 value and wei4ht thereto as said sworn statements ma0 definitel0 not #e said to have 4enuinel0 emanated from the affiants $sic% drivers and helpers( To #e precise, the Ioint&affidavit of the drivers and helpers $anne9 J/K, respondentsF position paper% o#viousl0 was Jtailor&madeK, so to speaA, to conform with the respondentsF position or defense in the instant case( )aid Ioint&affidavit in fact is couched in en4lish, thus, tremendousl0 lowerin4 the pro#a#ilit0 that the statements therein reall0 came from the Jhearts and soulsK of the lowl0&educated drivers and helpers( ;n the #reach of trust alle4edl0 committed #0 /o##0 Dacara with respect to the alleged act of repeatedl0 sneaAin4 in the household of respondent !ar0 Ann Co and thereafter impre4natin4 one of the latterFs househelps, the same is nothing #ut an unsubstantiated allegationand therefore, undeservin4 of Iudicial and Cuasi&Iudicial co4ni1ance( 5urisprudence definitel0 is e9plicit on this point that an affirmative allegation made #0 a part0 must dul0 #e proven to merit acceptance $*eople vs( Cala0ca, B01 )CRA 1,2%([H ;n appeal, the +ational 3a#or Relations Commission $+3RC% affirmed 3A RamosF Decision dated April 2B, 200H in its Resolution[@ dated April B0, 200@, thus: <n the case at #ar, Ee are persuaded to a4ree with the findin4s of the 3a#or Ar#iter that Jthe pieces of evidence adduced #0 the respondents in support of their defense 9 9 9 not #ein4 sufficient and su#stantial to esta#lish the char4es of serious misconduct and #reach of trustK $Records, p( ,"%([, <n addition, the +3RC ruled that the respondents failed to compl0 with the procedural reCuirements of due process( )pecificall0: <t is also o#served that much is to #e desired insofar as the o#servance of the procedural due process aspect is concerned( 2irstl0, there was no compliance with the due process reCuirement of the law considerin4 that the uniforml0 worded first notice, all dated 5anuar0 1", 200", sent #0 respondents&appellants to the complainants&appellees, did not apprise them of the particular acts or omission for which their dismissal were sou4ht( As clearl0 shown #0 the said individual notices, each of the complainants&appellees was merel0 informed that he or she is Jformall0 char4ed with D<)7;+6)T=, )6R<;>) !<)C;+D>CT, 3;)) ;2 C;+2<D6+C6 and acts inimical to the Compan0K 9 9 9 without specif0in4 the particular or specific acts or omissions constitutin4 the 4rounds for their dismissal( The purpose of the first notice is to sufficientl0 apprise the emplo0ee of the acts complained of and to ena#le the emplo0ee to prepare his defense( <n this case, thou4h, the said first notice did not identif0 the particular acts or omissions committed #0 each of the complainants&appellees( The e9tent of their Anowled4e and participation in the 4enerall0 descri#ed char4es were not specified in the said first notice, hence, the complainants&appellee could not #e e9pected to intelli4entl0 and adeCuatel0 prepare their defense( The first notice should neither #e pro&forma nor va4ueD that it should set out clearl0 what each of the emplo0ees is #ein4 held lia#le for( The0 should #e 4iven ample opportunit0 to #e heard and not mere opportunit0( Ample opportunit0 means that each of the complainants&appellees should #e specificall0 informed of the char4es in order to 4ive each of them, an opportunit0 to refute such accusations( )ince, the said first notices are inadeCuate, their dismissal could not #e in accordance with due process 9 9 9( )econdl0, there was no Iust or authori1ed cause for the respondents&appellants to terminate the complainants&appelleesF services( <t is o#served that the +otices of Termination, all dated 5anuar0 20, 200", merel0 mentioned the 4round relied upon, to wit: 9999 *lacin4 side #0 side the first $1 st% notices and the +otice of Termination, Ee can easil0 notice the wide disparit0 #etween them( <n the first $1st% notices, the alle4ed char4es leveled a4ainst each of complainants& appellees were couched in 4eneral terms, such as: D<)7;+6)T=, )6R<;>) !<)C;+D>CT, 3;)) ;2 C;+2<D6+C6 and ACT) <+<!<CA3 T; T76 C;!*A+=, such that the complainants&appellees could not #e e9pected to prepare their responsive pleadin4sD while the uniforml0 worded +otices of Termination, as earlier Cuoted, the char4es leveled a4ainst of $sic% them are more specific([10

Respondents moved for reconsideration and in a Decision [11 dated 5ul0 1H, 200@, the +3RC reversed itself and declared the individual petitioners le4all0 dismissed: Respondent compan0 is an entit0 en4a4ed in the deliver0 of 4oods called Jdoor&to&doorK #usiness( As such, respondents are in custod0 of 4oods and mone0s #elon4in4 to customers( Thus, respondents want to ensure that their drivers are dru4&free and honest( <t is undenia#le that persons taAin4 prohi#ited dru4s tend to commit criminal activities when the0 are Jhi4hK, as most of them are out of their minds( Complainants are drivers and are on the road most of the time( Thus, the0 must see to it that the0 do not cause dama4e to other motor vehicles and pedestrians( 3iAewise, when deliverin4 4oods and mone0, it is not impossi#le that the0 could commit acts inimical to the respondentsF interest, liAe failure to deliver the mone0 or 4oods to the ri4ht person or do a Jhold&up meK scenario( Thus, to 4uarantee complainants&driversF safet0 and effective performance of their assi4ned tasAs, respondents ordered complainants to under4o dru4 testin4( 7owever, the0 refused to follow the directive( +either did the0 4ive a clear e9planation for their refusal to the respondents( This shows complainantsF wron4ful attitude to def0 the reasona#le orders which undou#tedl0 pertain to their duties as drivers of the respondents( )uch act is tantamount to willful diso#edience of a lawful order, a valid 4round for dismissal under the 3a#or Code, as amended( 2urthermore, emplo0ees who are not complainants in this case, in a sworn statement attested to the fact that complainants tricAed them to si4n papers which turned out to #e a complaint for mone0 claims( The0 also accused them of a#usin4 their trust in order to achieve their selfish motives( Complainants even convinced them to shell out part of their salaries without authori1ation and consent, as Jpan44atos para sa papeles, transportas0on n4 a#u4adoK #ut said mone0 was used for the >nionFs purposes( Eorse, complainants even threatened them to file criminal char4es a4ainst them if the0 did not follow the complainantsF evil plans( 9 9 9 <n their ReIoinder, respondents also mentioned a#out the loss of car4oes to #e delivered to *ampan4a and +ueva 6ciIa( Complainants failed to refute the alle4ations nor comment on the matter( This led to respondentsF loss of trust and confidence reposed in them( Considerin4 that the drivers have in their possession mone0 and 4oods to #e delivered, the continuance of their emplo0ment depends on the trust and confidence in them( >ndenia#l0, trust, once lost is hard to re4ain( 9999 Ee disa4ree( ;n 5anuar0 1", 200", respondents sent each of the complainants a letter statin4 the infractions committed #0 them( The0 directed them to e9plain the said infractions with a warnin4 that failure to do so would mean waiver of their ri4ht to su#mit their answer( The0 further advised them to Jopt for a formal investi4ation with assistance of the counsel, or proceed with the investi4ation 0ou ma0 chooseK( 7owever, complainants failed to answer( +either did the0 do an0 act to dispute the char4es( The0 remained silent on the infractions which a person would not normall0 do if he is not 4uilt0 of the said char4es( <f the0 were reall0 innocent, immediatel0, even without an0 notice, the0 should have reacted and did ever0thin4 to dispute the char4es( /ut the0 failed, despite the notice to e9plain( This would lead to the conclusion that the0 were 4uilt0 of the char4es imputed a4ainst them( As a conseCuence thereof, the complainants are considered to have waived their ri4ht to defend themselves([12 *etitioners moved for reconsideration #ut the same was denied in a Resolution [1B dated )eptem#er B0, 200@( )u#seCuentl0, the petitioners filed a petition for certiorari with the CA( <n a Decision [14 dated 5ul0 1H, 200,, the CA reversed and set aside the +3RC Decision dated 5ul0 1H, 200@ and Resolution dated )eptem#er B0, 200@( Thus: <nitiall0, this Court must determine whether the petitioners violated the Compan0 *olicies as would warrant their dismissal from the service( 7owever, a painstaAin4 review of the records of this case ne4ate[s a findin4 of such culpa#ilit0 on the part of the petitioners( The char4es of dishonest0, serious misconduct and loss of confidence a4ainst the petitioners are nothin4 more than #are alle4ations as neither the show cause orders nor the termination letters specif0 in clear and unmistaAa#le manner, the specific acts committed #0 the petitioners as would amount to dishonest0, serious misconduct or loss of confidence( +either of these notices even contain an0 averments as to how and when the alle4ed infractions were committed #0 the petitioners( 999

<n this case, respondent compan0 had not #een a#le to identif0 an act of dishonest0, serious misconduct or an0 illicit act, which the petitioners ma0 have committed in connection with their worA, e9cept the alle4ation that petitioners filed false, malicious, and fa#ricated cases a4ainst the compan0 which, under the 3a#or Code, is not a valid 4round for termination of emplo0ment( There is even no mention of an0 compan0 polic0 or rule violated #0 an0 of the petitioners to warrant their dismissal( The char4es are clearl0 unfounded( 9999 The superficial compliance with two notices and a hearin4 in this case cannot #e considered valid where the notices to e9plain where issued four $4% da0s #efore the petitioners were terminated( The termination was o#viousl0 hurriedl0 effected, as the respondent failed to 4ive the petitioners the avenue to contradict the char4es a4ainst them either #0 su#mission of their answer or #0 the conduct of an actual investi4ation in order to 4ive spirit to the reCuirement of due process( *etitioners were thus ro##ed of their ri4hts to e9plain their side, to present evidence and re#ut what was presented a4ainst them, ri4hts ensured #0 the proper o#servance of procedural due process([15 Respondents promptl0 filed a motion for reconsideration( )imilar to the +3RC, the CA reversed itself and retracted its earlier findin4 that the individual petitioners were ille4all0 dismissed( <n its Amended Decision [1" dated !arch 1", 2010, the CA concluded that the two $2% notices issued #0 8in4spoint 69press complied with the reCuirements of the law: <n the assailed Decision, Ee conceded that all the petitioners were a(t)ally *)rn+s,ed with a letter dated 1" 5anuar0 200"( <n each letter, petitioners were individuall0 char4ed with J dishonesty, serious misconduct, loss of confidence for performing acts inimical to the company by filing with the NLRC false, malicious and fabricated cases against the company and their refusal to undergo drug testing. K The0 were directed to su#mit an answer or e9planation within fort0&ei4ht $4@% hours and were even 4iven the option to avail of a formal investi4ation with the assistance of counsel( The0 were further advised that failure to su#mit said answerLe9planation would mean waiver on their part( Thus, when the0 failed to su#mit an e9planationLAnswer, and failed to inform their emplo0er that the0 wanted a formal investi4ation on the matter, their emplo0er was constrained to serve upon them on 20 5anuar0 200", or four $4% da0s later, separate n&t+(es &* ter-+nat+&n stat+n. t,e &**enses t,ey (&--+tted, viz(: 9999 )how&cause lettersLmemoranda create a #urden on the emplo0ees to e9plain their innocence( <n turn, it is from such e9planation that the emplo0er will #e o#li4ed to prove his case in an investi4ation( )ince the petitioners did not e9plain, much less invoAe their ri4ht to investi4ation, it follows that the0 are deemed to have waived their ri4hts under Art( 2HH$#% of the 3a#or Code( Technicall0, the law on evidence considers them to have admitted the char4es a4ainst them( Eith such admission, the emplo0er is dischar4ed from the need to prove the offenses char4ed( <t is well&settled that in an0 forum, whether Iudicial or administrative, a party need n&t pr&/e 0,at +s ad-+tted([1H $Citations omitted% The CA also held that the individual petitioners performed acts, which constitute serious misconduct: The assailed Decision admits what constitutes ser+&)s -+s(&nd)(t( 7ere, e9cept for /o##0 Dacara, each of the three petitioners conceded the e9istence of the followin4 #ases for their dismissal: $1% (&-pla+nants1 re*)sal t& )nder.& -andat&ry dr).!test+n. D $2% creatin4 disharmon0 and distrust amon4 the worAers and misleadin4 them to 4o a4ainst the emplo0erD and $B% l&s+n. (ar.& 0+t, a /al)e &* P234,444.44 entr)sted t& resp&ndent (&-pany for door&to&door deliver0( -eril0, each of the aforestated 4rounds independentl0 constitute[s serious misconduct( 6ach of them were $sic% committed in relation to petitionersF worA( And a4ain, the commission of said infractions constitutes a 4round to dismiss under Art( 2@2$a% of the Code( The Court, therefore, 4ravel0 erred when it held that no serious misconduct was committed #0 petitioners in this case( ;n the other hand, in the case of /o##0 Dacara, records show that he committed #reach of trust and confidence #0 sneaAin4 into the house of private respondent Co and en4a4in4 one of CoFs helpers in repeated se9ual con4ress leadin4 to her pre4nanc0( As held in Santos, r. vs. NLRC, such #ehavior amounts to immoralit0 which is a case of serious misconductD a Iust cause to dismiss an emplo0ee([1@ $Citation omitted% *etitioners moved for reconsideration #ut this was denied #0 the CA in its Resolution [1, dated Decem#er 1", 2010( The lone issue for the disposition of this Court is the validit0 of the individual petitionersF dismissal( <t is fundamental that in order to validl0 dismiss an emplo0ee, the emplo0er is reCuired to o#serve #oth su#stantive and procedural due process M the termination of emplo0ment must #e #ased on a Iust or authori1ed cause and the dismissal must #e effected after due notice and hearin4([20

As to whether 8in4spoint 69press complied with the su#stantive reCuirements of due process, this Court a4rees with the CA that the concerned emplo0eesF refusal to su#mit themselves to dru4 test is a Iust cause for their dismissal( An emplo0er ma0 terminate an emplo0ment on the 4round of serious misconduct or willful diso#edience #0 the emplo0ee of the lawful orders of his emplo0er or representative in connection with his worA( Eillful diso#edience reCuires the concurrence of two elements: $1% the emplo0eeNs assailed conduct must have #een willful, that is, characteri1ed #0 a wron4ful and perverse attitudeD and $2% the order violated must have #een reasona#le, lawful, made Anown to the emplo0ee, and must pertain to the duties which he had #een en4a4ed to dischar4e( /oth elements are present in this case( As to the first element, that at no point did the dismissed emplo0ees den0 8in4spoint 69pressF claim that the0 refused to compl0 with the directive for them to su#mit to a dru4 test or, at the ver0 least, e9plain their refusal 4ives rise to the impression that their non&compliance is deli#erate( The utter lacA of reason or Iustification for their insu#ordination indicates that it was prompted #0 mere o#stinac0, hence, willful and warrantin4 of dismissal( <t involves little difficult0 to accuse 8in4spoint 69press of anti&unionism and alle4e that this was what motivated the dismissal of the petitioners, #ut the dut0 to prove such an accusation is alto4ether different( That the petitioners failed at the level of su#stantiation onl0 4oes to show that their claim of unfair la#or practice is a mere su#terfu4e for their willful diso#edience( As to the second element, no #ela#ored and e9tensive discussion is necessar0 to reco4ni1e the relevance of the su#Iect order in the performance of their functions as drivers of 8in4spoint 69press( As the +3RC correctl0 pointed out, drivers are indispensa#le to 8in4spoint 69pressF primar0 #usiness of renderin4 door&to&door deliver0 services( <t is common Anowled4e that the use of dan4erous dru4s has adverse effects on drivin4 a#ilities that ma0 render the dismissed emplo0ees incapa#le of performin4 their duties to 8in4spoint 69press and actin4 a4ainst its interests, in addition to the threat the0 pose to the pu#lic( The e9istence of a sin4le Iust cause is enou4h to order their dismissal and it is now inconseCuential if the other char4es a4ainst them do not merit their dismissal from service( <t is therefore unnecessar0 to discuss whether the other acts enumerated in the notices of termination issued #0 8in4spoint 69press ma0 #e considered as an0 of the Iust causes( +onetheless, while 8in4spoint 69press had reason to sever their emplo0ment relations, this Court finds its supposed o#servance of the reCuirements of procedural due process pretentious( Ehile 8in4spoint 69press reCuired the dismissed emplo0ees to e9plain their refusal to su#mit to a dru4 test, the two $2% da0s afforded to them to do so cannot Cualif0 as Jreasona#le opportunit0K, which the Court construed in !ing of !ings "ransport, #nc. v. $amac[21 as a period of at least five $5% calendar da0s from receipt of the notice( Thus, even if 8in4spoint 69pressF defective attempt to compl0 with procedural due process does not ne4ate the e9istence of a Iust cause for their dismissal, 8in4spoint 69press is still lia#le to indemnif0 the dismissed emplo0ees, with the e9ception of *anuelos, Di1on and Dima#a0ao, who did not appeal the dismissal of their complaints, with nominal dama4es in the amount of*B0,000(00( 56ERE"ORE, premises considered, the Decision dated !arch 1", 2010 and Resolution dated Decem#er 1", 2010 of the Court of Appeals are A""IRMED with MODI"ICATION in that respondent 8in4spoint 69press and 3o4istic is here#0 held lia#le for the pa0ment of nominal dama4e, in the amount of *B0,000(00 each to petitioners /o##0 Dacara, 2ernando 3upan4co, 5r(, )and0 *a1i, Camilo Ta#aran4ao, 5r(, 6duardo 7i1ole and Re4inaldo Carillo, for non&o#servance of procedural due process reCuired in terminatin4 emplo0ment(