G.R. No.

208321               July 30, 2014

WESLEYAN UNIVERSITY PHILIPPINES, Petitioner,

vs.
NOWELLA REYES, Respondent.

DECISION

VELASCO, JR., J.:

Nature of the Case

The issue in this petition boils down to the legality of respondent Nowella Reyes' termination as
University Treasurer of petitioner Wesleyan University - Philippines (WUP) on the ground of loss of
trust and confidence. Petitioner prays in this recourse that We reverse the February 28, 2013
Decision of the Court of Appeals (CA) in CA-G.R. SP No. 122536 which declared respondent's
termination illegal.

The Facts

On March 16, 2004, respondent Nowella Reyes was appointed as WUP's University Treasurer on
probationary basis. A little over a year after, she was appointed as full time University Treasurer.

On April 27, 2009, a new WUP Board of Trustees was constituted. Among its first acts was to
engage the services of Nepomuceno Suner & Associates Accounting Firm (External Auditor) to
investigate circulating rumors on alleged anomalies in the contracts entered into by petitioner and in
its finances.

Discovered following an audit were irregularities in the handling of petitioner’s finances, mainly, the
encashment by its Treasury Department of checks issued to WUP personnel, a practice purportedly
in violation of the imprest system of cash management, and the encashment of various crossed
checks payable to the University Treasurer by Chinabank despite management’s intention to
merelyhave the funds covered thereby transferred from one of petitioner’s bankaccounts to another.
The External Auditor’s report embodied the following findings and recommendations: 1

Treasury Department (Cash Management):

Findings:

1. It was noted that checks consisting of various checks payable to teachers, staffs and other
third parties had been the subject of encashment directly with the Treasury Department
under the stewardship of Mrs. Nowella A. Reyes,the University Treasurer. This practice is a
clear violation of imprest system of cash management, hence, resulting to unsound
accounting practice. This laxity in cash management of those checks were paid as intended
for them. Recommendations:

For internal control reasons, the treasury should not accept any check encashment from its
daily collections. Checks are being issued for encashment with our depository bank for
security reasons. The mere acceptance of checks from the collections is tantamount to cash
disbursement out of collections.
Findings:

2. It was also noted that various checks payable to the Treasurer of WUP x x x had been
negotiated for encashment directly to China Bank – Cabanatuan Branch, while the intention
of the management for these checks were merely for fund transfer with the other account
maintained at China Bank. This practice is a violation not only in the practice of
accounting/cash custodianship but had been mingled with spurious elements. Unfortunately,
check vouchers relating to this exception are nowhere to be found or not on file.

Findings:

3. A crossed check payable to the Treasurer – [WUP] x x x had been negotiated for
encashment to China Bank – Cabanatuan Branch despite of the restriction indicated in the
face of the check. Unfortunately, the used check was no longer found on file.

As a result of said audit, petitioner served respondent a Show Cause Order and placed her
under preventive suspension.  The said Show Cause Order required her to explain the
2

following matters found by the External Auditors:

(a) your encashment of Php300,000.00 ofa crossed check you issued payable to
yourself (Chinabank Check No. 000873613 dated 26 November 2008) x x x;

(b) the encashment of various checks without any supporting vouchers x x x;

(c) unliquidated cash advances in the aggregate amount of Php9.7 million x x x. 3

On June 18, 2009, respondent submitted her Explanation. Following which, WUP’s Human
Resources Development Office (HRDO) conducted an investigation. Finding respondent’s
Explanation unsatisfactory, the HRDO, on July 2, 2009, submitted an Investigation Report  to the
4

University President containing its findings and recommending respondent’s dismissal as University
Treasurer.

Upon receipt of her notice of termination on July 9, 2009, respondent post-haste filed a complaint for
illegal dismissal with the Arbitration Branch of the National Labor Relations Commission. She
contended that her dismissal was illegal, void and unjust, for the following reasons:

First,her 60-day preventive suspension violated the Labor Code provisions prohibiting such
suspensions tolast for more than thirty (30) days. Thus, the fact that she was not reinstated to her
former position before the lapse of thirty (30) days, amounted to constructive
dismissal;  Second,there was a violation of her right to substantive and procedural due process, as
5

evidencedby petitioner’s failure to apply the pertinent due process provisions under its Administrative
and Personnel Policy Manual;  and6

Finally,the charges against her werebased on mere suspicion and speculations and unsupported by
evidence. 7

Petitioner, for its part, predicated its defense on the contention that respondent was a highly
confidential employee who handled significant amounts of money as University Treasurer and that
the irregularities attributed to her in the performance ofher duties justify her dismissal on the basis of
loss of trust and confidence.8
Petitioner also averred that the 60-day preventive suspension thus imposed does not necessarily
make suchsuspension void, inasmuch as the law merely requires that after a 30-day preventive
suspension, the affected employee shall automatically be reinstated. But in the case of respondent,
there was no need for her automatic reinstatement inasmuch as she was duly terminated within the
30-day period of her preventive suspension.  Moreover, respondent was duly afforded her right to
9

due process since WUP substantially complied with the twin-notice rule.

Ruling of the Labor Arbiter

On December 15, 2010, Labor Arbiter Reynaldo V. Abdon rendered a Decision finding for
respondent. The dispositive portion of the Labor Arbiter Decision reads:

WHEREFORE, premises considered, judgment is hereby rendered, DECLARING that complainant

Nowella Reyes x x x [was] illegally dismissed by respondent Wesleyan University Philippines.

Accordingly, respondent Wesleyan University Philippines through its President is hereby DIRECTED
to:

(1) Reinstate complainant Nowella Reyes to her former or equivalent position without loss of
seniority right;

(1.1) Since reinstatement is immediately executory, to render a Report of

Compliance to this Office within ten (10) days from receipt of this Decision.

(2) Pay complainant Reyes her backwages, from the time of her dismissal until
reinstatement, the present sum of which is ₱429,000.00;

(3) Pay complainant Reyes, her 13th month pay in the sum of ₱52,000; her shared (sic) in
related learning experience fee, ₱12,000.00; clothing allowance, ₱6,000.00; Honorarium as
member of standing committees, ₱4,000.00; and her vacation leave credits in the sum of
₱17,862.59;

(4) Pay complainant Reyes, moral damages in the sum of ₱150,000.00, exemplary damages
in the amount of ₱100,000.00, and 10% attorney’s fees in the sum of ₱77,086.25;

xxxx

SO ORDERED. 10

The Labor Artbiter noted, as respondent has insisted, that the charges against the latter were based
on mere rumors and speculations. As observed too by the Labor Arbiter, petitioner itself was in the
wrong because it had no proper policies on its accounting and financial procedures and that the
encashment and accommodation of checks to personnel, especially after banking hours, had been
the practice of its previous and present administrations. Thus, it was unfair to put all the blame on
respondent without any evidence that her actionswere highly irregular, unfair or unjustified. 11

As regards petitioner’sfindings on the alterations in the Check Disbursement Voucher (CDV),

unliquidated cash advances and duplicate checks, the Labor Arbiter found and wrote:

Anent the alleged finding of the university that there was material alteration on the documents as
regards the Check Disbursement Voucher (CDV), for allegedly there was an absence of Board
Resolution entry in the CDV filed in the Accounting while the copy submitted by the Treasurer has a
Board Resolution entry as well as the word ATM on the payee portion on the photocopy as crossed
out while in the original it was not crossed out, respondent cannot summarily state that complainant
was at fault. The Human Resource should have conducted an in-depth investigation on this matter.
Unfortunately, respondent just followed the twin-notice rule, and did not conduct a thorough
administrative investigation in accordance with their own internal rules and policies in the Manual.
Consequently, this Office has serious doubt that such matter was the fault of the complainant for the
blame may fall on the accounting personnel who is handling the CDV.

With respect to the unliquidated cash advances, it is not likewise the fault of the complainant. She
pointed out that follow ups of the liquidation is [sic] being handled by the auditor, while respondent
claims that she was previously handling the same before it was transferred to Accounting Office in
August 2008. We see no evidence to prove that the liquidation is being handled by the complainant
prior to August 2008. Moreover, it is common practice thatthe Treasurer disburses the funds such as
cash advances but the liquidation must be done by the beneficiary of the fund, and the responsible
people who should follow up the liquidation is the accounting office.

With respect to the duplicate checks, the same were done by a syndicate or individuals not
connectedwith the University. The bank has already admitted responsibility in the encashment of
these checks and had returned the amounts to the respondent University, thus complainant has no
fault about this incident.
12

Ruling of the NLRC

Petitioner filed an appeal withthe National Labor Relations Commission (NLRC) which was granted
in the tribunal’s Decision dated July 11, 2011, declaring that respondentwas legally dismissed.
However, petitioner was ordered to pay respondent her proportionate 13th month pay, the monetary
value of her vacation leave, and attorney’s fees.

Adopting a stance entirely opposite to that of the Labor Arbiter, the NLRC held that respondent failed
to controvert and disprove the established charges of petitioner (as appellant-respondent) and
insteadconveniently put the blame on other departments for her inculpatory acts. The NLRC opined
that her termination was not motivated by the change of petitioner’s officers but by the University’s
goal to promote the economy and efficiency of its Treasury Department. 13

In net effect, the NLRC found petitioner’s contention of loss of trust and confidence in respondent
with sufficient basis. While respondent, so the NLRC notes, may not have been guilty ofwillful breach
of trust, the fact that she held a highly confidential position, and considering that anomalous
transactions transpired under her command responsibility, provided petitioner with ample ground
todistrust and dismiss her.  The NLRC explained:
14

In this case, complainant-appellee [herein respondent] may not have been guilty of willful breach of
trust. But as Treasurer of [WUP] who handles and supervises all monetary transactions in the
University and being a highly confidential employee at that, holding trust and confidence and after
considering the series of irregular and anomalous transactions that transpired under complainant-
appellee’s command responsibility, respondent has basis or ample reason to distrust complainant-
appellee. Thus, we cannot justly deny [WUP] the authority to dismiss complainant-appellee.

The principle of respondent (sic) superior or command responsibility may be cited as basis for the
termination of employment of managerial employees based on loss of trust and confidence. In the
Etcuban case (Ibid) the Supreme Court in upholding the validity of petitioner-employee’s dismissal
on the ground of loss of trust and confidence, ruled that even if the employee x x x had no actual and
direct participation in the alleged anomalies, his failure to detect any anomaly that would normally fall
withinthe scope of his work reflects his ineffectiveness and amounts to gross negligence and
incompetence which are likewise justifiable grounds for his irregularity, for what is material is that his
actuations were more than sufficient to sow in his employer the seed of mistrust and loss of
confidence.

As found by the External Auditor, complainant-appellee should have implemented an imprest system
of cash management in order to secure the indicated payees in those checks and they were paid of
the checks as intended for them. It appears that checks payable to teachers, staffs and other third
parties had beenthe subject of encashment directly with the Treasury Department x x x and this is an
unsound accounting practice.

Moreover, the External Auditors found that various checks payable to the Treasurer of Wesleyan
University has been negotiated for encashment directly to China Bank-Cabanatuan Branch while the
intention of the management for those checks weremerely for fund transfer with the other account
maintained at China Bank. That this practice violated accounting or cash custodianship and check
vouchers are nowhere to be found.

Further, the crossed check payable to the Treasurer (complainantappellee) in the amount of
₱300,000.00 dated 26 November 2008 had been negotiated for encashment to China Bank –
Cabanatuan Branch despite of restriction indicated in the face of the check and that the used check
was no longer found on file. There is a need for a clear policy when to issue crossed-checks or
otherwise and the use of debit/credit memo to transfer one account to another with the same bank.
That these acts of violation of cash and check custodianship by complainant-appellee resulted in the
loss of respondent-appellant thus affecting the economy of the respondent-appellant institution.

In view of our finding that respondents-appellants (sic) has validly terminated complainant-appellee
the latter’s claim for damages and attorney’s fees lacks sufficient factual and legal basis.
Accordingly, the Labor Arbiter’s decision directing the reinstatement of complainantappellee with full
backwages ishereby vacated and set aside. 15

The NLRC denied respondent’s motion for reconsideration in a Resolution dated September 29,
2011.Therefrom, respondent went on Certiorari to the CA, inCA-G.R. SP No. 122536.

Ruling of the Court of Appeals

On February 28, 2013, the CA, through its assailed Decision,  found the NLRC’s ruling tainted with
16

grave abuse of discretion and reinstated the Decision of the Labor Arbiter. The fallo of the CA
Decision reads:

WHEREFORE, premises considered, the assailed Decision and Resolution of the National Labor
Relations Commission dated July 11, 2011 and September 29, 2011 are REVERSED and SET
ASIDE. The Decision of the Labor Arbiter dated December 15, 2010 is hereby REINSTATED,
subject to the modification that if reinstatement is no longer feasible, petitioner shall be awarded
separation pay equivalent to one month salary for every year ofservice reckoned from the time of
employment to the finality of this decision.17

Holding that respondent’s termination was unjust, the CA, in virtual restoration of the findings and
conclusions of the Labor Arbiter, pointed out, among others, that: (1) respondent sufficiently
countered all charges against her; (2) it had been the practice of the previous and present
administrations of petitioner to encash and accommodate checks of WUP personnel; thus, it would
be unjust to penalize respondent for observing a practice already in place when she assumed office;
(3) the duty to liquidate cash advances is assigned to the internal auditor; (4) it has been established
that the encashments of spurious duplicate checks were perpetrated by individuals not connected
with WUP, and that the bank admitted responsibility therefor and had returned the amount involved
to petitioner; (5) there was no imputation of any violation of the University’s Administration and
Personnel Policy Manual; (6) while the acts complained of violated the imprest system of cash
management, there was no showing that the said system had been adopted and observed in the
school’s accounting and financial procedures; and (7) there was no showing that respondent had the
responsibility to implement changes in petitioner’s accounting system even if it were not in
accordance with the generally accepted principles of accounting. 18

Hence, the instant petition.

The Issues

For consideration herein are the following issues raised by petitioner:

1. Whether or not the CA over-reached its power of review under Rule 65 of the Rules of
Court when it reversed the judgment of the NLRC; and

2. Whether or not the CA erred in finding respondent illegally dismissed by petitioner on the
ground of loss of trust and confidence.

The Court’s Ruling

The petition is impressed with merit. The CA erred in reinstating the Labor Arbiter’s Decision and in
finding that respondent was illegally dismissed.

The CA’s power of review

We first resolve the procedural issue raised in this recourse. Petitioner contends that the CA over-
reached its power of review under Rule 65 when it substituted its own judgment over errors of
judgment that it found in the NLRC Decision, stressing that the province of a writ of certiorari is to
correct only errors of jurisdiction and not errors of judgment.

This contention is misplaced. It is settled that under Section 9 of Batas Pambansa Blg.129,  as
19

amended by Republic Act No. 7902,  the CA, pursuant to the exercise of its original jurisdiction over
20

petitions for certiorari, is specifically given the power to pass upon the evidence, if and when
necessary, to resolve factual issues. Sec. 9 clearly states:

The Court of Appeals shall have the power to try cases and conduct hearings, receive evidence and
perform any and all acts necessary to resolve factual issues raised in cases falling within its original
and appellate jurisdiction, including the power to grant and conduct new trials or further proceedings.
xxx

Hence, the appellate court acted within its sound discretion when it re-evaluated the NLRC’s factual
findings and substituted the latter’s own judgment.

Loss of trust and confidence as a ground for termination

We now proceed to the substantive issue on the propriety of respondent’s dismissal due to loss of
trust and confidence.As provided in Art. 282(c) of Presidential Decree No. 442, otherwise known as
the Labor Code of the Philippines:

Article 282. Termination by employer.An employer may terminate an employment for any of the
following causes:

xxxx

c. Fraud or willful breach by the employee of the trust reposed in him by his employer or duly
authorized representative;

We explained in M+W Zander Philippines, Inc. v. Enriquez  the requisites of a valid dismissal based
21

on loss of trust and confidence. As the case elucidates:

Article 282 (c) of the Labor Code allows an employer to terminate the services of an employee for
loss of trust and confidence. Certain guidelines must be observed for the employer to terminate an
employee for loss of trust and confidence. We held in General Bank and Trust Company v. Court of
Appeals, viz.:

[L]oss of confidence should not be simulated. It should not be used as a subterfuge for causes which
are improper, illegal, or unjustified. Loss of confidence may not be arbitrarily asserted in the face of
overwhelming evidence to the contrary. It must be genuine, not a mere afterthought tojustify earlier
action taken in bad faith.

The first requisite for dismissal on the ground of loss of trust and confidence is that the employee
concerned must be one holding a position of trust and confidence.

There are two classes of positions of trust: managerial employees and fiduciary rank-and-file
employees.

Managerial employees are defined as those vested with the powers or prerogatives to lay down
management policies and to hire, transfer, suspend, lay-off, recall, discharge,assign or discipline
employees or effectively recommend such managerialactions. They refer to those whose primary
duty consists of the management of the establishment in which they are employed or of a
department or a subdivision thereof, and to other officers or members of the managerialstaff.
Officers and members of the managerial staff perform work directlyrelated to management policies
of their employer and customarily and regularly exercise discretion and independent judgment.

The second class or fiduciary rank-and-file employees consist of cashiers, auditors, property
custodians, etc., or those who, in the normal exercise of their functions, regularlyhandle significant
amounts of money or property. These employees, though rank-and-file, are routinely charged with
the care and custody of the employer’s money or property, and are thus classified as occupying
positions of trust and confidence.22

xxxx

The second requisite of terminating an employee for loss of trust and confidence is that there must
be an act that would justify the loss of trust and confidence. To be a valid cause for dismissal, the
loss of confidence must be based on a willful breach of trust and founded on clearly established
facts.
23
To summarize, the first requisite is that the employee concerned must be one holding a position of
trust and confidence, thus, one who is either: (1) a managerial employee; or (2) a fiduciary rank-and-
file employee, who, in the normal exercise of his or her functions, regularly handles significant
amounts of money or property of the employer. The secondrequisite is that the loss of confidence
must be based on a willful breach of trust and founded on clearly established facts.

In Lima Land, Inc. v. Cuevas,  We discussed the difference between the criteria for determining the
24

validity of invoking loss of trust and confidence as a ground for terminating a managerial employee
on the one hand and a rank-and-file employee on the other. In the said case, We held that with
respect to rank-and-file personnel, loss of trust and confidence, as ground for valid
dismissal,requires proof of involvement in the alleged events in question, and that mere
uncorroborated assertions and accusations by the employer would not suffice. Withrespect to a
managerial employee, the mere existence of a basis for believing that such employee has breached
the trust of his employer would suffice for his dismissal. The following excerpts from Lima Land are
instructive:

As firmly entrenched in our jurisprudence, loss of trust and confidence, as a just cause for
termination of employment, is premised on the fact that an employee concerned holds a position
where greater trust is placed by management and from whom greater fidelity to duty is
correspondingly expected. This includes managerial personnel entrusted with confidence on delicate
matters, such as the custody, handling, or care and protection of the employer’s property.The
betrayal of this trust is the essence of the offense for which an employee is penalized.

It must be noted, however, that ina plethora of cases, this Court has distinguished the treatment of
managerial employees from that of rank-and-file personnel, insofar as the application of the doctrine
of loss of trust and confidence is concerned. Thus, with respect to rank-and-file personnel, loss of
trust and confidence, as ground for valid dismissal, requires proof of involvement in the alleged
events in question, and that mere uncorroborated assertions and accusations by the employer will
not be sufficient. But as regards a managerial employee, the mere existence of a basis for believing
that such employee has breached the trust of his employer would suffice for his dismissal. Hence, in
the case of managerial employees, proof beyond reasonable doubt is not required, it being sufficient
that there is some basis for such loss of confidence, such as when the employer has
reasonableground to believe that the employee concerned is responsible for the purported
misconduct, and the nature of his participation therein renders him unworthy of the trust and
confidence demanded of his position.

On the other hand, loss of trust and confidence as a ground of dismissal has never been intended to
afford an occasion for abuse because of its subjective nature. It should not be used as a subterfuge
for causes which are illegal, improper, and unjustified. It must be genuine, not a mere afterthought
intended to justify an earlier action taken in bad faith. Let it not be forgotten that what is at stake is
the means of livelihood, the name, and the reputation of the employee. To countenance an arbitrary
exercise of that prerogative is to negate the employee’s constitutional right to security of tenure. 25

Respondent’s employment classification is irrelevant in light of her proven willful breach

There is no doubt that respondent held a position of trust; thus, greater fidelity is expected of her.
She was not an ordinary rank-and-file employee but an employee occupying a very sensitive
position. As University Treasurer, she handled and supervised all monetary transactions and was
the highest custodian of funds belonging to WUP.  To be sure, in the normal exercise of her
26

functions, she regularly handled significant amounts of money of her employer and managed a
critical department.
The presence of the first requisite iscertain. So is as regards the second requisite. Indeed, the Court
finds that petitioner adequately proved respondent’s dismissal was for a just cause, based on a
willful breach of trust and founded on clearly established facts as required by jurisprudence. At the
end of the day, the question of whether she was a managerial or rank-andfile employee does not
matter in this case because not only is there basis for believing that she breached the trust of her
employer, her involvement in the irregularities attending to petitioner’sfinances has also been
proved.

To recall, petitioner, per its account, allegedly lost trust and confidence in respondent owing to any
or an interplay of the following events: (1) she encashed a check payable to the University Treasurer
in the amount of three hundred thousand pesos (PhP 300,000); (2) she encashed crossed checks
payable to the University Treasurer, when the intention of management in this regard was to merely
transfer funds from one of petitioner’s accounts to another in the same bank; (3) she allowed the
Treasury Department to encash the checks issued to WUP personnel rather than requiring the latter
to have said checks encashed by the bank, in violation of the imprest system of accounting; (4) she
caused the disbursement of checks without supporting check vouchers; (5) there were unliquidated
cash advances; and (6) spurious duplicate checks bearing her signature were encashed causing
damage to petitioner.

We disagree with the CA’s finding that respondent has sufficiently countered all inculpatory
allegations and accusations against her. On the contrary, We find that here, there was anadmitted,
actual and real breach of duty committed by respondent, which translates into a breach of trust and
confidence in her. For perspective, respondent’s explanation as to the charges against her is as
follows:

1. That the alleged crossed check issued by her payable to THE TREASURER – WUP was
done in the exercise of her duty and function as such, and not with her name and not to
herself and personal favor, and that said check had been prepared passing through the
usual system; 2. That the University heads were the beneficiaries of said amount who
strongly requested that their love giftbe given, hence, the encashment;

3. That the amount of the check was properly disposed of as evidenced by the document
bearing the signatures of recipients;

4. That the Office to pointto if vouchers and supporting documents will have to be checked
concerning payments made is the Accounting Office;

5. That cash advances to various University personnel pass through her office in the
exercise of her duties assuch but the office who follow up the liquidation of payments
received is the Office of the University Auditor;

6. That respondent Reyes adopted her reply on the show-cause order in the investigation
previously conducted by Dr. Jeremias Garcia about the duplicated checks alleging among
others:

a) She and her staff confirmed that only the checks issued to General Capulong and
Leodigario David were encashed by the University Teller;

b) The check issued to Norma de Jesus was encashed by the Pick-up Chinabank
Teller on December 5, 2008 while collecting deposits from the University with the
assistance of the University teller;
 c) That the check issued to Mercedes was not encashed with the University teller but
with WEMCOOP;

d) As to the encashment and accommodation of checks to personnel, it has been the

practice of previousand present administration moreso when employees cannot
anymore go to Chinabank to transact business as it is mostly beyond banking hours
when checks are ready for disbursement;

e) That Respondent’s department has no control over fraudulent transactions done

outside the University, that it is the Bank’s duty to protect its clients as tothe proper
procedures to secure our account;

f) That the computer system program of the University’s depository bank has very
limited capabilities to detect fraudulent entries;

g) That the signature verifier also had been remiss in carefully checking the
authenticity ofprevious signatories. 27

a. Respondent’s encashment of checks

As it were, respondent did not deny, in fact admitted, the encashment of the three hundred thousand
peso (PhP 300,000) crossed check payable to the University Treasurer which covered the total
amount of the "love gift" for administrative and academic officials of WUP. Neither did she deny the
fact that the Treasury Department encashed checks issued to WUP personnel rather than requiring
them to have the checks encashed by the bank. Instead, she explained that the beneficiaries of the
amounts strongly requested that their love gifts be given in cash, hence the encashment of the PhP
300,000 crossed check and, thereafter, the accommodation and encashment of their checks directly
by the Treasury Department. Moreover, she submitted a document bearing the signatures of the
recipients of the "love gift" as proof that the amount was disposed properly.  She further insisted that
28

this was the usual practice of the University and that she merely accommodated the requests of
WUP personnel especially when Chinabank was already closed.

Jurisprudence has pronounced that the crossing of a check means that the check may not be
encashed but only deposited in the bank.  As Treasurer, respondent knew or is at least expected to
29

be aware of and abide by this basic banking practice and commercial custom. Clearly, the issuance
of a crossed check reflects management’s intention to safeguard the funds covered thereby, its
special instruction to have the same deposited to another account and its restriction on its
encashment.

Here, respondent, as aptly detailed inthe auditor’s report, disregarded management’s intentions and
ignored the measures in place to secure the handling of WUP’s funds. By encashing the crossed
checks, respondent put the funds covered thereby under the riskof being lost, stolen, co-mingled
with other funds or spent for other purposes. Furthermore, the accommodation and encashment by
the Treasury Department of checks issued to WUP personnel were highly irregular. First, WUP, not
being a bank, had no business encashing the checks of its personnel.  More importantly, in
30

encashing the said checks, the Treasury Department made disbursements contrary to the wishes
ofmanagement because, in issuing said checks, management has madeclear its intention that
monies therefor would be sourced from petitioner’s deposit with Chinabank, under a specific
account, and not from the cash available in the Treasury Department.

That the encashment of crossed checks and payment of checks directly to WUP personnel had been
the practice of the previous and present administration of petitioner is of no moment. To Our mind,
this was simply respondent’s convenient excuse, a poorlydisguised afterthought, when her
unbecoming carelessness in managing WUP’s finances was exposed. Moreover, the prevalence of
this practice could have been contained if only respondent consistently observed the regular
procedure for encashing crossed checks and properly handled requests for accommodation of
checks issued to the WUP personnel.

b. Unliquidated cash advances

On the matter of unliquidated cash advances in the aggregate amount of nine million seven hundred
thousand pesos (PhP 9,700,000), respondent explained that while it was true that cash advances to
WUP personnel passed through her office in the exercise of her duties as University Treasurer, the
office that follows up the liquidation of advances received is the office of the University
Auditor.  However, granting that the responsibility of handling the liquidation of cash advances is no
31

longer lodged in her office, there is proof showing that before the Treasury Department was relieved
of said responsibility, the total unliquidated cash advances was even bigger, amounting to eleven
million five hundred thirty-three thousand two hundred thirty pesos and thirty-seven centavos (PhP
11,533,230.37). There is nothing in the records before us showing that respondent denied the
following findings in the Investigation Report of the WUP’s Human Resource Development Office
(HRDO)on this matter, to wit:

In the matter of unliquidated cash advances in the aggregate amount of Php9.7million as found by
the External Auditors, respondent’s contention was that cash advances tovarious University
personnel pass through her office in the exercise of her duties as such but the office who follows up
the liquidation of payments received is the Office of the University Auditor.

On the inquiry done x x x of the Internal Auditor, Treasury and Accounting officer on July 1, 2009, it
was found out that the responsibility of handling cash advances and liquidation report was
transferred from Treasury Office to Accounting Office on August 2008, when Ms. Luzviminda Torres,
the personnel handling the same detailed at the Treasury Office went on leave. It was transferred to
Ms. Julieta Mateo. What was surprising was that as per certification and summary submitted by Ms.
Mateo, the amount of unliquidated cash advances previous to August 2008, when the same was
under the responsibility of the Treasury Office, was even bigger with the total amount of ELEVEN
MILLION FIVE HUNDRED THIRTY THREE THOUSAND, TWO HUNDRED THIRTY PESOS AND
THIRTY SEVEN CENTAVOS (Attached as Annex "G")

Even if there is truth in the contention of herein Respondent that she was no longer the one in
charge of the liquidation proceedings, the same would not absolve her from gross negligence of
duties. The fact that the said function was with her office until August 2008, with unliquidated cash
advances even bigger, still showed that she reneged in her duties which she had overlooked for so
long. She now mistakenly points the responsibility to the Office of the University Auditor. These
informations are enough to be considered as Respondent’s acts constitutive of breach of trust and
confidence. 32

xxx

c. Other irregularities inrespondent’s performance

In all, We find the Investigation Report of the HRDO a credible, extensive and thorough account of
respondent’s involvementin incidents which are sufficient grounds for petitioner’s loss of trust and
confidence in her, to wit:
Respondent Nowella C. Reyes has committed breach of trust and confidence in the conduct of her
office.

In her answer, Respondent admitted the encashment of the crossed check with the defense that the
same was done in the performance of her duty, not for her personal use but because of the request
of University heads who wanted their love gifts begiven. She alsoadmitted habitual encashment of
checks issued by the University to its personnel on the basis of practice of previous administration.

The charge against Respondent of the act of improper encashment of a check, which aside from
being irregular is clearly violative of imprest system of cash management. Moreover, the same being
a crossed check, should not be negotiated for encashment to Chinabank – Cabanatuan Branch
because of the restriction indicated on its face, which Mrs. Reyes, by reason of her office knew very
well.

During the investigation conducted, it was revealed that the check disbursement voucher attached
by Respondent on her answer to justify the regularity of its issuance and eventual encashment was
not exactly the same as the one filed at the Accounting Office. It showed that the photocopy of the
original CDV which was attached by Respondent (attached as Annex "E"of this report) bear some
material alterations, namely:

1. The absence of entry of the Board Resolution which was reflected as a sort of inquiry by
the Internal Auditor, and which at present was left blank on the original, as compared to the
photocopy submitted by respondent bearing an entry of the Board Resolution number;

2. The word ATM on the payee portion of the CDV in the original as compared to the
photocopy wherein the entry ATM was crossed out.

During a discussion with the external auditors, it was categorically stated by them that during the
courseof external audit, said document was inexistent in the records presented by the Accounting
and Treasurer’s Offices. The production of the photocopy by Respondent already altered only after
the suspension was effected cast doubt on the regularity of its issuance, negating her otherwise
claim. Another significant observation was that the original copy of CDV (attached as Annex "F" of
this report) and corresponding signatures of administrative heads who received payments showed
folded marks halfways, with the fastener holes unmatched, showing that those two documents were
not really filed together, as regularly done, and the same were not filed in the regular course and
must have been kept previously on a different manner in possession of person other than the office
which must file the same.

xxxx

On the last charge in the show cause order specifically the existence of duplicate checks in the
account of the University amounting to Php 1.050 Million, included in Respondent’s defenses were
that among the checks duplicated, only two of them were encashed with the University Teller, and
the check originally named to Norma de Jesus as payee was paid by the pick-up teller only through
the assistance of the University teller.

Again, Respondent’s defense were void of truth and merit. The act of encashing checks issued by
the Treasury Office, clearly violative of imprest system of cash management which Mrs. Reyes by
reason of her office knew very well, showed that Respondent directly reneged in her duty to observe
economic security measures.
As found on the documents attachedto the Investigation report of Dr. Garcia which had been
expressly adopted by herein respondent in her answer is an Affidavit of Norma de Jesus stating that
she actually encashed the check with the personnel of the Treasury Office particularly Shirley
Punay, who gave her the amountequivalent days after the check was handed to the Treasury office.

However noble the intention of herein Respondent in helping her fellow workers in the University by
her acts of accommodation by encashing their checks directly withthe Treasury Office when
Chinabank was already closed, the same still reneged in her duty to protect the economic security of
the University. An act of misconduct which caused [sic]33

An employer cannot be compelled toretain an employee who is guilty of acts inimical to the interests
of the employer. A company has the right to dismiss its employees if only as a measure of self-
protection. This is all the more true in the case of supervisors or personnel occupying positions of
responsibility.  In this case, let it be remembered that respondent was not an ordinary rank-and-file
34

employee as she was no less the Treasurer who was in charge of the coffers of the University. It
would be oppressive to require petitioner to retain in their management an officer who has admitted
to knowingly and intentionally committing acts which jeopardized its finances and who was
untrustworthy in the handling and custody of University funds.

WHEREFORE, premises considered, we GRANTthe petition. The assailed Decision of the Court of
Appeals in CA-G.R. SP No. 122536 is, thus, SET ASIDE. The Decision of the National Labor
Relations Commission in NLRC RAB III Case No. 07-15131-09 is REINSTATED.

SO ORDERED.
 July 31, 2017

G.R. No. 209555

UNITED POL YRESINS, INC., ERNESTO UY SOON, JR., and/or JULITO UY SOON, Petitioners
vs.
MARCELINO PINUELA, Respondent

DECISION

DEL CASTILLO, J.:

This Petition for Review on Certiorari  assails the December 11, 2012 Decision  and October 10,
1 2

2013 Resolution  of the Court of Appeals (CA) in CA-G.R: SP No. 115402 which set aside the June
3

11, 2011 Decision  of the National Labor Relations Commission (NLRC) in NLRC-LAC Case No. 06-
4

001577-09.

Factual Antecedents

Petitioner United Polyresins, Inc. (UPI) is a registered domestic corporation doing business in San
Pedro, Laguna, while petitioners Ernesto Uy Soon, Jr. and Julito Uy Soon are its corporate officers.

Respondent Marcelino Pinuela was employed by UPI in 1987. He became a member of the labor
union, Polyresins Rank and File Association (PORFA), and was elected President thereof in May,
2005 and slated to serve until the end of 2007.

The collective bargaining agreement (CBA) then existing between UPI and PORFA provided that:

Section 3. The Company shall grant to the Union the amount of Three Hundred Thousand Pesos
(₱300,000.00) free of interest as the union's capital for establishing a cooperative to meet the needs
of its members. Said loan shall fall due and become payable at the same date that this Bargaining
Agreement expires, to wit - December 31, 2007. In the event of non-payment, all officers and
members will be personally accountable. In case of additional funds, they can make a written
request [addressed] to the President of the company. 5

The CBA likewise contained a union security clause which provided that employees who cease to be
PORFA members in good standing by reason of resignation or expulsion shall not be retained in the
employ of UPI.

Upon his assumption as union President, respondent wrote the former union President, Geoffrey
Cielo (Cielo), to turn over the records, papers, documents and financial statements of the union.
Cielo surrendered the union's bank account documents, among others, which indicated that the
union had an available ₱78,723.60 cash balance. Cielo likewise submitted a Financial Report
indicating that the union had ₱208,623.60 in cash and ₱l59,500.00 in receivables.

Finding that the bank documents and Cielo's report did not match, and Cielo unable to explain the
discrepancies, the union's Executive Committee, which was headed by respondent, resolved to hire
a certified public accountant to conduct an audit of the union's finances. In a December 1, 2005
report, the accountant concluded that the union's finances, income, and disbursements for the years
2003 and 2004 were not properly documented, recorded, and reported. He recommended that the
union officers "take a seminar on basic bookkeeping and accounting;"  that the union adopt and/or
6

install the necessary accounting and internal control systems; that the union prepare the proper
financial statements; and that the officers take corrective measures in financial management as an
integral part of sound management. 7

Meanwhile, during respondent's term as PORF A President, it appeared that UPI automatically
deducted from the respective salaries of PORFA members amounts representing union membership
dues and loan payments. These amounts, which totalled ₱2,402,533.43, were then regularly turned
over by UPI to PORFA in the form of fifty eight (58) crossed checks, made payable to
PORFA.  These amounts were then deposited and credited to PORFA's account.
8 9

On December 8, 2007, or several days before the ₱300,000.00 loan by UPI to PORFA became due,
petitioners, respondent, and the other union officers met to discuss the proposed new CBA. Thereat,
petitioners told respondent that until the ₱300,000.00 is returned, the former shall not discuss the
proposed CBA. Respondent explained that the union did not have the finances and had only
₱78,723.60, which was the original amount turned over by Cielo to respondent when the latter
assumed office as union President. Petitioners then told respondent and the other union officers that
if the amount is not returned, the same will be deducted from the salaries of the union members. 10

On January 7, 2008, respondent filed a complaint before the National Conciliation and Mediation
Board (NCMB), claiming that petitioners refused to bargain collectively. During the scheduled
conferences before the NCMB, petitioners raised the issue of non-payment of the ₱300,000.00
owing to UPI and insisted on its payment; they also threatened to deduct the amount of ₱l,500.00
from the respective salaries of the union members. 11

Because of the recurring threat of failed CBA negotiations and salary deductions as means of
recovering the ₱300,000.00 loaned to the union, union members began to demand the holding of a
special election of union officers. They likewise accused respondent and the other union officers of
mismanagement, unduly hanging on to their positions, and lack of accountability. 12

Thus, in March 2008, special elections were held, and a new union President and set of officers
were elected.13

On March 29, 2008, the union's new set of officers conducted an investigation into the fact that the
union had little or no funds remaining in its bank account. Respondent attended the investigation,
and admitted that the union had no more funds as they were "utilized in the prosecution of cases
during his incumbency."  He likewise failed to make a formal turnover of documents to the new
14

President. Respondent was required to surrender union documents in his possession on the next
scheduled meeting. 15

On April 8, 2008, another inquiry was held where respondent was present. The investigation
centered on respondent's continued failure to account for the union's bank accounts, documents,
and deposits made during his incumbency, and his failure to formally turn over union's papers to the
new officers. After the meeting, respondent and the new officers proceeded to the bank, where they
discovered that the PORFA account had already been closed. 16

On April 10, 2008, the new set of union officers issued a Resolution  expelling respondent from
17

PORF A for being guilty of the following violations:

1. No annual financial statement.

2. No listings or ledger of union member's [sic] emergency loans.

3. Unposted cheques on the Union's passbook collected from umon members [sic] monthly dues.

4. Our union checking account at Security Bank were [sic] Zero balance/closed account.

5. No receipts/cash disbursement presented for the union operational [sic] expenses.

6. Unable to return the ₱300,000.00 lent by the management free of interest. (Art. XXVII, Section 3
of our CBA).

7. Unable to explain and present documents to support where the agency fees and union dues
collected from legitimate union members were used. 18

The officers held that these violations constituted an infringement of the union's Constitution,
particularly Article XV, Section 1, paragraphs (e) and (f) thereof, which specifically prohibit the
misappropriation of union funds and property and give ground for the impeachment and recall of
union officers.
19

In an April 11, 2008 letter  to petitioners, PORF A communicated respondent's expulsion from the
20

union.

On April 14, 2008, petitioners issued a letter of termination  to respondent, to take effect
21

immediately.

Ruling of the Labor Arbiter

Respondent filed a complaint against petitioners before the Labor Arbiter for illegal dismissal, with
monetary claims and damages, which was docketed as NLRC Case No. RAB-IV-08-27303-08-L. He
claimed that his dismissal was effected in bad faith and without due process and was thus illegal.
Petitioners countered that respondent's dismissal is valid under the union security clause of the
CBA; that his failure to return the ₱300,000.00 loan to the union due to
mismanagement/misappropriation constitutes just cause for his expulsion from the union, as well as
dismissal from employment; that he was accorded substantive and procedural due process; that the
herein individual petitioners may not be held liable for respondent's claims; and that accordingly, the
case should be dismissed.

On April 20, 2009, the Labor Arbiter issued a Decision  dismissing respondent's complaint on the
22

finding that respondent was not illegally terminated, thus:

While complainant, as then Union President, denies any misappropriation of union funds, it is
undisputed that he failed to account for the missing union funds and to return the ₱300,000.00 which
the respondent company had lent for the union's assistance upon the expiration of the CBA dated
December 31, 2007.

More importantly, in the investigation conducted by the newly elected officers of the union, it was
uncovered that union funds were in fact personally used by the former officers of PORF A which
includes complainant.

Thus, the union passed a resolution expelling complainant from the PORFA union and the
corresponding letter was sent to the respondent company informing the latter of complainant's
expulsion coupled with a recommendation that complainant be terminated from employment
pursuant to the union security clause of the CBA.

Given the foregoing, we rule that complainant was validly dismissed since the respondent company
merely did its obligation under the CBA by terminating the services of complainant who ceased to be
a member in good standing of the PORF A union by reason of expulsion.

WHEREFORE, premises considered, judgment is hereby rendered DISMISSING the instant

complaint for lack of merit.

SO ORDERED. 23

Ruling of the National Labor Relations Commission

Respondent appealed before the NLRC, which initially overturned the Labor Arbiter in a December
8, 2009 Decision,  which decreed as follows:
24

WHEREFORE, the assailed Decision is hereby SET ASIDE and a NEW one is entered declaring the
complainant-appellant's dismissal to be illegal. Respondents Union [sic] and respondent company
are hereby declared jointly and severally liable to pay complainant his full backwages from the date
he was dismissed until date instant [sic] and to pay his separation pay equivalent to one month
salary per year of service computed as follows:

BACKWAGES
04/14/08 - 10/14/09
₱396 x 26 days x 18
mos.
₱l0,296.00 x 18 days = ₱l85,328.00

SEPARATION PAY
₱396.00 x 26 x 22yrs.
₱l0,296 x 22yrs. = ₱226,512.00

13th Month Pay

₱185,328.00 I 12 = ₱15,444.00

Grand Total ₱427,284.00

SO ORDERED. 25

However, on motion for reconsideration, the NLRC issued its June 11, 2011 Decision, which held as
follows:

What cannot escape from [sic] our attention and consideration are the following: (1) there was an
obligation x x x to return the amount of ₱300,000.00 to the respondent upon termination of the CBA
on December 31, 2007, (2) complainant, as the President of the Union at the time the loan was due
and demandable, failed to account for said funds, and under the same provision, was to be held
personally accountable, (3) Pinuela actually participated x x x in the whole process of determining
accountability over the union funds, (4) denied knowledge over and receipt of the missing funds,
despite his being among those charged with its custody and safe-keep, as the Union President.

It is also to be noted that the complainant as union president, could not explain nor comment on the
fact that their union's bank account is already a closed account. Even if We assume and in fact
complainant admitted that he had custody of ₱78,723.60 as union funds as of June 3, 2005, still he
could not account the whereabouts of the said money. As a signatory to the said account,
complainant cannot be considered as entirely faultless since he was grossly negligent in the custody
of the funds. There is substantial basis in complainant's dismissal thus, the award of backwages and
13th month pay should be deleted. However, even if We find complainant's dismissal to be valid,
there is equally no evidence showing that he pocketed the missing funds of the union. In this regard
since he had rendered a considerable number of years in the service (21 years) complainant may be
awarded separation pay at the rate of 'ii month salary for every year of service (396 x 13 x 21 years)
from the inception of his employment till his dismissal in the interest of justice and compassion since
his infraction did not involve serious misconduct.

Further, We also hold that while complainant's dismissal was valid pursuant to the enforcement of
the Union Security Clause, respondents however did not comply with the requisite procedural due
process. As held in the case of Agabon vs. NLRC, x x x the Supreme Court held that where the
dismissal is for a cause recognized by the prevailing jurisprudence, the absence of the statutory due
process should not nullify the dismissal or render it illegal x x x. Accordingly, for violating
complainant's statutory rights, respondents should indemnify him the amount of ₱30,000.00 as
nominal damages in addition to his separation pay.

WHEREFORE, premises considered, respondents-appellees' Motion for Reconsideration is

GRANTED, a new Decision is rendered finding complainant's dismissal as valid. Respondents-
appellees are however ordered to pay complainant the amounts of ₱108,108.00 and ₱30,000.00 as
separation pay and nominal damages.

All other claims whether monetary or otherwise are hereby DISMISSED.

SO ORDERED. 26

Ruling of the Court of Appeals

In a Petition for Certiorari  before the CA and docketed as CA-G.R. SP No. 115402, respondent
27

sought to reverse the above NLRC Decision and reinstate its December 8, 2009 Decision, arguing
that the Commission gravely erred in concluding that he was personally accountable for the missing
funds, the closing of PORFA's bank account, and that he was grossly negligent in the custody of the
union funds. In their Comment,  petitioners countered that respondent's dismissal was attended by
28

due process; that he is guilty of the infractions for which he was dismissed; and that his guilt had
been proved by substantial evidence.

On December 11, 2012, the CA issued the assailed Decision containing the following
pronouncement:

Petitioner insists that he is innocent of the charges against him made by the PORF A (the union),
particularly the embezzlement of the union funds. He vehemently denied misappropriation of the
same and that the PORFA Union officers conspired with the Respondents in removing him as a
member in good standing of the said union and his subsequent dismissal as employee pursuant to
the CBA's union security clause.
Respondents on the other hand, denied the Petitioner's allegation of conspiracy and that in fact,
there was a series of conferences conducted jointly by the management and the union on the matter
of lost union funds and that the Petitioner was made aware of the charges against him before he
was terminated. They claim that the management participated in the investigations and that it was
shown that even if the Petitioner as president of the union did not misappropriate the funds
nevertheless he committed omission/gross negligence for which reason he was expelled therefrom.
The Respondents also claim that Petitioner was accorded procedural due process during the
investigations.

It is basic in labor jurisprudence that the burden of proof rests upon management to show that the
dismissal of its worker was based on a just cause. When an employer exercises its power to
terminate an employee by enforcing the union security clause, it needs to determine and prove the
following: (1) the union security clause is applicable; (2) the union is requesting for the enforcement
of the union security provision in the CBA; and (3) there is sufficient evidence to support the decision
of the union to expel the employee from the union.

The dispute before Us does not raise any issue with respect to the first two requisites; the issue
being whether there was sufficient evidence to support Petitioner's expulsion from PORFA. In
arriving at any conclusion thereto, the Petitioner must first be accorded due process of law.x x x

xxxx

On both questions of whether there exist[s] sufficient evidence to support Petitioner's expulsion from
the union (substantive due process), and whether Petitioner was properly informed of the accusation
against him and his dismissal from employment (procedural due process), We answer in the
negative.

An examination of the submitted evidence before the Labor Arbiter show [sic] that the same are not
enough to prove the alleged charges of misappropriation against the Petitioner and neither was he
properly informed thereof.

xxxx

On the other hand, the Petitioner have [sic] shown adequate explanation about the funds of the
union that came to his possession. The Memorandum of Ramon M. Martinez, a Certified Public
Accountant, show [sic] that he made an audit of the funds of the union during the previous
administration and that the actual funds the union had was merely ₱34,344.25 when Petitioner took
over. This amount was not even shown to have been misappropriated by the Petitioner.

Compounding this want of substantive evidence is the lack of procedural due process that Petitioner
was entitled to. As [has] been previously discussed, the Petitioner was not given the proper first
notice. Thereafter, despite such lack of first notice, on the mere letter of the union that he was
expelled therefrom because of alleged causes, the Petitioner was dismissed from employment by
the Respondents in the termination letter dated 14 April 2008 on the sole basis of union security
clause. Such action cannot be countenanced. In the same Inguillo case, the Supreme Court also
ruled:

'Thus, as held in that case, 'the right of an employee to be informed of the charges against him and
to reasonable opportunity to present his side in a controversy with either the company or his own
Union is not wiped away by a Union Security Clause or a Union Shop Clause in a collective
bargaining agreement. An employee is entitled to be protected not only from a company which
disregards his rights but also from his own Union, the leadership of which could yield to the
temptation of swift and arbitrary expulsion from membership and mere dismissal from his job.'

In sum, the NLRC gravely abused its discretion in reconsidering its earlier Decision which is more in
accord with the evidence on record.

WHEREFORE, the petition is hereby GRANTED. The assailed Decision dated 11 June 2010  is 29

hereby SET ASIDE. The Decision dated 8 December 2009 is REINSTATED with the
MODIFICATION that the backwages shall be recomputed from the date of Petitioner's dismissal to
the finality of this Decision.

SO ORDERED.  (Citations omitted)

30

Petitioners filed a Motion for Reconsideration,  which was denied by the CA in its October 10, 2013
31

Resolution.  Hence, the instant Petition.

1âwphi1

Issues

In a June 22, 2015 Resolution,  the Court resolved to give due course to the Petition, which contains
32

the following assignment of errors:

I.

THE APPELLATE COURT ERRED IN RULING THAT THE CHARGES OF MISAPPROPRIATION

AGAINST THE RESPONDENT WERE INSUFFICIENT (SUBSTANTIVE DUE PROCESS)

II.

THE APPELLATE COURT ERRED IN RULING THAT THE RESPONDENT WAS NOT PROPERLY
INFORMED OF THE CHARGES AGAINST HIM (PROCEDURAL DUE PROCESS).

III.

THE APPELLATE COURT ERRED IN RULING THAT THE RESPONDENT IS ENTITLED TO

SEPARATION PAY, BACKWAGES FROM DISMISSAL TO THE FINALITY OF ITS DECISION, AND
13TH MONTH PAY. 33

Petitioners' Arguments

Praying that the assailed CA dispositions be set aside and that respondent's case be dismissed
instead, petitioners maintain in their Petition and Reply  that substantive and procedural due process
34

were observed in respondent's case; that respondent was apprised of the charges against him and
given the opportunity to refute them; that the evidence points to the conclusion that he
misappropriated the union's funds and was unable to explain the dissipation thereof; that for what he
has done, respondent violated Article XV, Section 1, paragraphs (e) and (f) of the union's
Constitution; that respondent's dismissal on the basis of the union security clause in the CBA was
thus valid, based on substantial proof, and in accord with the pronouncement in Carino v. National
Labor Relations Commission,  where the dismissal of an employee was upheld on the basis of the
35

union security and expulsion clauses contained in the CBA; and that since his dismissal is valid, then
he is not entitled to his monetary claims.
Respondent's Arguments

In his Comment,  respondent maintains that the CA did not err in finding that the evidence against
36

him was insufficient; that the CA was correct in ruling that his right to procedural due process was
violated when he was not properly informed of the charges against him; and that for these reasons,
he was illegally dismissed and thus entitled to his monetary claims.

Our Ruling

The Court denies the Petition.

Respondent's expulsion from PORFA is grounded on Article XV, Section 1, paragraphs (e) and (f) of
the union's Constitution, which provides:

ARTICLE-XV
IMPEACHMENT AND RECALL

Section 1. Any of the following shall be ground for the impeachment or recall of the union officers.

a. Committing or causing the commission directly or indirectly of acts against the interest and
welfare of the union;

b. Malicious attack against the union, its officers or against a fellow union officer or member;

c. Failure to comply with the obligation to tum over and return to union treasurer within three
(3) days unexpanded [sic] sum of money received from the money funds to answer for an
authorized union purpose;

d. Gross misconduct unbecoming of a union officer;

e. Misappropriation of union funds and property. This is without prejudice to the filing of an
appropriate criminal or civil action against the responsible officer/(s) by any interested party;

f. Willful violation of any provision of the constitution or rules, regulations, measures,

resolution(s) and decision of the union.  (Emphasis supplied)
37

However, these provisions refer to impeachment and recall of union officers, and not expulsion from
union membership. This is made clear by Section 2(e) of the same Article XV, which provides that
"(t)he union officers impeached shall 'IPSO FACTO' to [sic] be considered resigned or ousted from
office and shall no longer be elected nor appointed to any position in the union." In short, any officer
found guilty of violating these provisions shall simply be removed, impeached or recalled, from
office, but not expelled or stripped of union membership.

It was therefore error on the part of PORFA and petitioners to terminate respondent's employment
based on Article XV, Section 1, paragraphs (e) and (f) of the union's Constitution. Such a ground
does not constitute just cause for termination.

A review of the PORFA Constitution itself reveals that the only provision authorizing removal from
the union is found in Article X, Section 6, that is, on the ground of failure to pay union dues, special
assessments, fines, and other mandatory charges.  On the other hand, grounds for disqualification
38

from membership may be found in Article IV, which states that-

Section 3. The following are not eligible neither [sic] for membership nor to election or appointment
to any position in the union:

a. Subversive or persons who profess subversive ideas.

b. Persons who have been convicted of crime involving moral turpitude.

c. Persons who are not employees of the company. 39

These provisions do not apply in respondent's case. Although he was eventually charged with
estafa,  a crime involving moral turpitude,  still, he has not been convicted of the crime. For this
40 41

reason, he may not be disqualified as union member.

Thus, for what he is charged with, respondent may not be penalized with expulsion from the union,
since this is not authorized and provided for under PORFA's Constitution.

Contrary to petitioners' claim, Carino v. National Labor Relations Commission is not applicable here.
In that case, the employee was terminated on the basis of existing suspension and expulsion
provisions contained in the CBA and rules on discipline found in the union's Constitution. There are
no such provisions in PORFA's Constitution; neither has it been shown that there are similar
stipulations in the parties' CBA.

The matter of respondent's alleged failure to return petitioners' ₱300,000.00 which was lent to
PORFA is immaterial as well. It may not be used as a ground to terminate respondent's employment;
under the Labor Code, such a contribution by petitioners to PORFA is illegal and constitutes unfair
labor practice.

ART. 248. Unfair labor practices of employers. - It shall be unlawful for an employer to commit any of
the following unfair labor practice:

xxxx

(d) To initiate, dominate, assist or otherwise interfere with the formation or administration of any
labor organization, including the giving of financial or other support to it or its organizers or
supporters;  (Emphasis supplied)
42

This could be an opportune time for the union to consider amending its Constitution in order to
provide for specific rules on the discipline of its members, not just its officers. After all, it is given the
right under the Labor Code, "to prescribe its own rules with respect to the acquisition or retention of
membership."  But it may not insist on expelling respondent from PORF A and assist in his dismissal
43

from UPI without just cause, since it is an unfair labor practice for a labor organization to "cause or
attempt to cause an employer to discriminate against an employee, including discrimination against
an employee with respect to whom membership in such organization has been denied or to
terminate an employee on any ground other than the usual terms and conditions under which
membership or continuation of membership is made available to other members." 44

On account of the foregoing disquisition, the other issues raised by the parties need not be
discussed.
WHEREFORE, for the foregoing reasons, the Petition is hereby DENIED. The December 11, 2012
Decision and October 10, 2013 Resolution of the Court of Appeals in CA-G.R. SP No. 115402 are
AFFIRMED.

SO ORDERED.