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ALEJANDRO v.

OFFICE OF THE OMBUDSMAN


April 13, 2013 | Brion, J. | Certiorari | Jurisdiction of Courts Sandiganbayan For Criminal Procedure
PETITIONERS: Franklin Alejandro
RESPONDENTS: Office of the Ombudsman Fact-Finding and Intelligence Bureau, represented by Atty. Maria Olivia
Elena A. Roxas
SUMMARY:
DOCTRINE:
FACTS:
1. The MWSI (Manila Waters Services, Inc) in coordination
with the PNP Criminal Investigation and Detection Group
(PNP-CIDG) conducted an anti-water pilferage operation
against MICO (Mico Car Wash) in response to a report that
MICO, owned by Algredo Rap Alejandro, has been illegally
opening an MWSI fire hydrant and using it to operate its carwash business in Binondo, Manila.
2. During the investigation, It was discovered that MICOs
carwash boys indeed had been illegally getting water from a
MWSI fire hydrant. PNP-CIDG arrested the carwash boys and
confiscated the containers used in getting water. HOWEVER,
at this point, the petitioner, Alfredos father and the Barangay
Chairman or punong barangay of Barangay 293, Zone 28,
Binondo, Manila, interfered with the PNP-CIDGs operation
by ordering several men to unload the confiscated containers.
This intervention caused further commotion and created an
opportunity for the apprehended car-wash boys to escape
ISSUE:
1. WoN petitioners retired or Philex dismissed them from
services DISMISSED for Retrenchment
2. WoN the dismissal was illegal YES
RULING: Petition GRANTED.
RATIO:
1. The Arbitrator and CA based their decisions on the fact that
the petitioners availed and acquired the retirement gratuity
as evidenced by the quitclaims and receipts. HOWEVER, the
court held that the retirement gratuity regarged by Philex is
actually a separation pay as it was paid because of the
petitioners retrenchment. The letter of notice delivered to
Benjamin Biete (one of the petitioners) states: You will be
retiring from service due to separation at the instance of
Philex Mining Corporation as a result of its retrenchment
program. Since your separation is for cause beyond your
control, you will be entitled to payment of retirement gratuity
under the Retirement Gratuity Plan. CLEARLY, Philex
treated the retirement gratuity as petitioners basic separation
pay. Significantly, Philex paid petitioners such separation pay
after notifying them of their retrenchment.
2. FURTHERMORE, Philex failed to submit other documents
proving petitioners retirement, such as their application for
retirement under Philexs early retirement program and their
clearance slips, undermines its claim. Submission of these
documents would have put to rest any doubt on the cause of
the separation. Vouchers of payment do not suffice to prove
petitioners retirement from Philex (SEE DOCTRINE). Since

the payment is for the reason of retrenchment, the petitioners


are dismissed for retrenchment as well.
3. Even as an action for retrenchment, the dismissal is still
illegal. The requirements for retrenchment are (1) it is
undertaken to prevent losses, which are not merely
deminimis, but substantial, serious, actual, and real, or if only
expected, are reasonably imminent as perceived
objectivelyand in good faith by the employer, (2) the employer
serves written notice both to the DOLE and employees, 30
days prior to the intended date of retrenchmentl and (3) the
employer pays the retrenched employees separation pay
equivalent to 1 month pay or at least month pay for every
year of service, whichever is higher. (4) employer must use
fair and reasonable criteria in ascertaining who would be
dismissed and who would be retained among the employees,
and that (5) the retrenchment must be undertaken in good
faith. An independent auditor confirmed Philexs claim for
financial losses and that the suffered and projected loss is
substantial. HOWEVER, Philex failed to implement its
retrenchment program in a just and proper manner. One of the
criteria for the retrenchment of supervisory employees
contravenes with the CBA then in force. The criteria evaluates
ones disciplinary record oever a 3 year period regardless of
the penalty involved, however the CBA stipulates that offenses
punishable by reprimands and warnings of separation will be
stricken-off the record every 1st February of each year. Since
the Union did not ratify the MOA, the MOA cannot prevail
over the CBA. Failure to use a reasonable and fair standard in
the computation of the supervisors demerits points is not
merely a procedural but a substantive defect which invalidates
petitioners dismissal. If the CBA governs instead of the
MOA, petitioners may not fall under those to be retrenched.
FURTHERMORE, Philex did not explain why it retrenched
the petitioners Biete who got the highest rating in his unit and
Petitioner Mamayson even though he got the third highest
rating in his unit. The criteria for retrenchment were arbitrarily
applied. THe petitioners are thus entitled to reinstatement will
full backwages, HOWEVER, the amounts received as net
separation pay should be deducted from their back wages.
5. LASTLY, the Court held that the petitioners are not
estopped to file a complaint for illegal dismissal despite
signing a Deeds or Release and Quitclaims. Even though the
petitioners are supervisors and not rank-and-fuled employees,
it does not make them less susceptible to financial offers,
faced as they were with the prospect of unemployment.
Petitioners claim that economic necessity constrained them to
accept Philexs monetary offer and sign the Deeds of Release
and Quitclaims..