1 Abbott V Alcaraz

5/10/2017 SUPREMECOURTREPORTSANNOTATEDVOLUME701
G.R. No. 192571. July 23, 2013.*
ABBOTT LABORATORIES, PHILIPPINES, CECILLE A.

TERRIBLE, EDWIN D. FEIST, MARIA OLIVIA T.
YABUTMISA, TERESITA C. BERNARDO, AND ALLAN
G. ALMAZAR, petitioners, vs. PEARLIE ANN F.
ALCARAZ, respondent.
Remedial Law Civil Procedure Forum Shopping

Certification Against Forum Shopping The prohibition against
forum shopping is different from a violation of the certification
requirement under Section 5, Rule 7 of the Rules of Court.At the
outset, it is noteworthy to mention that the prohibition against
forum shopping is different from a violation of the certification
requirement under Section 5, Rule 7 of the Rules of Court. In Sps.
Ong v. CA, 384 SCRA 139
_______________
*EN BANC.
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Abbott Laboratories, Philippines vs. Alcaraz
(2002), the Court explained that: x x x The distinction between

the prohibition against forum shopping and the certification
requirement should by now be too elementary to be
misunderstood. To reiterate, compliance with the certification
against forum shopping is separate from and independent of the
avoidance of the act of forum shopping itself. There is a difference
in the treatment between failure to comply with the certification
requirement and violation of the prohibition against forum
shopping not only in terms of imposable sanctions but also in the
manner of enforcing them. The former constitutes sufficient cause
for the dismissal without prejudice [to the filing] of the complaint
or initiatory pleading upon motion and after hearing, while the
latter is a ground for summary dismissal thereof and for direct
contempt.
http://central.com.ph/sfsreader/session/0000015bf05c5ab1f5af9b23003600fb002c009e/t/?o=False 1/67
Same Same Same Forum shopping takes place when a

litigant files multiple suits involving the same parties, either
simultaneously or successively, to secure a favorable judgment.
Forum shopping takes place when a litigant files multiple suits
involving the same parties, either simultaneously or successively,
to secure a favorable judgment. It exists where the elements of
litis pendentia are present, namely: (a) identity of parties, or at
least such parties who represent the same interests in both
actions (b) identity of rights asserted and relief prayed for, the
relief being founded on the same facts and (c) the identity with
respect to the two preceding particulars in the two (2) cases is
such that any judgment that may be rendered in the pending
case, regardless of which party is successful, would amount to res
judicata in the other case.
Same Same Same Section 5(b), Rule 7 of the Rules of Court
requires that a plaintiff who files a case should provide a complete
statement of the present status of any pending case if the latter
involves the same issues as the one that was filed.Section 5(b),
Rule 7 of the Rules of Court requires that a plaintiff who files a
case should provide a complete statement of the present status of
any pending case if the latter involves the same issues as the one
that was filed. If there is no such similar pending case, Section
5(a) of the same rule provides that the plaintiff is obliged to
declare under oath that to the best of his knowledge, no such
other action or claim is pending.
Labor Law Probationary Employees A probationary
employee, like a regular employee, enjoys security of tenure.
However, in cases of
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684 SUPREME COURT REPORTS ANNOTATED
probationary employment, aside from just or authorized causes of

termination, an additional ground is provided under Article 295 of
the Labor Code, i.e., the probationary employee may also be
terminated for failure to qualify as a regular employee in
accordance with the reasonable standards made known by the
employer to the employee at the time of the engagement.A
probationary employee, like a regular employee, enjoys security of
tenure. However, in cases of probationary employment, aside from
just or authorized causes of termination, an additional ground is
provided under Article 295 of the Labor Code, i.e., the
probationary employee may also be terminated for failure to
qualify as a regular employee in accordance with the reasonable
standards made known by the employer to the employee at the

time of the engagement. Thus, the services of an employee who
has been engaged on probationary basis may be terminated for
any of the following: (a) a just or (b) an authorized cause and (c)
when he fails to qualify as a regular employee in accordance with
reasonable standards prescribed by the employer.
Same Same If the employer fails to inform the probationary
employee of the reasonable standards upon which the
regularization would be based on at the time of the engagement,
then the said employee shall be deemed a regular employee.
Section 6(d), Rule I, Book VI of the Implementing Rules of the
Labor Code provides that if the employer fails to inform the
probationary employee of the reasonable standards upon which
the regularization would be based on at the time of the
engagement, then the said employee shall be deemed a regular
employee, viz.: (d) In all cases of probationary employment, the
employer shall make known to the employee the standards under
which he will qualify as a regular employee at the time of his
engagement. Where no standards are made known to the
employee at that time, he shall be deemed a regular employee. In
other words, the employer is made to comply with two (2)
requirements when dealing with a probationary employee: first,
the employer must communicate the regularization standards to
the probationary employee and second, the employer must make
such communication at the time of the probationary employees
engagement. If the employer fails to comply with either, the
employee is deemed as a regular and not a probationary
employee.
Same Same An employer is deemed to have made known the
standards that would qualify a probationary employee to be a
regular
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VOL. 701, JULY 23, 2013 685
employee when it has exerted reasonable efforts to apprise the

employee of what he is expected to do or accomplish during the
trial period of probation.An employer is deemed to have made
known the standards that would qualify a probationary employee
to be a regular employee when it has exerted reasonable efforts to
apprise the employee of what he is expected to do or accomplish
during the trial period of probation. This goes without saying that
the employee is sufficiently made aware of his probationary status
as well as the length of time of the probation. The exception to the
foregoing is when the job is selfdescriptive in nature, for

instance, in the case of maids, cooks, drivers, or messengers. Also,
in Aberdeen Court, Inc. v. Agustin, 456 SCRA 32 (2005), it has
been held that the rule on notifying a probationary employee of
the standards of regularization should not be used to exculpate an
employee who acts in a manner contrary to basic knowledge and
common sense in regard to which there is no need to spell out a
policy or standard to be met. In the same light, an employees
failure to perform the duties and responsibilities which have been
clearly made known to him constitutes a justifiable basis for a
probationary employees nonregularization.
Same Same Basic knowledge and common sense dictate that
the adequate performance of ones duties is, by and of itself, an
inherent and implied standard for a probationary employee to be
regularized such is a regularization standard which need not be
literally spelled out or mapped into technical indicators in every
case.Verily, basic knowledge and common sense dictate that the
adequate performance of ones duties is, by and of itself, an
inherent and implied standard for a probationary employee to be
regularized such is a regularization standard which need not be
literally spelled out or mapped into technical indicators in every
case. In this regard, it must be observed that the assessment of
adequate duty performance is in the nature of a management
prerogative which when reasonably exercised as Abbott did in
this case should be respected. This is especially true of a
managerial employee like Alcaraz who was tasked with the vital
responsibility of handling the personnel and important matters of
her department.
Same Same If the termination is brought about by the failure
of an employee to meet the standards of the employer in case of
probationary employment, it shall be sufficient that a written
notice is served the employee, within a reasonable time from the
effective date
686
of termination.A different procedure is applied when

terminating a probationary employee the usual twonotice rule
does not govern. Section 2, Rule I, Book VI of the Implementing
Rules of the Labor Code states that [i]f the termination is
brought about by the x x x failure of an employee to meet the
standards of the employer in case of probationary employment, it
shall be sufficient that a written notice is served the employee,

within a reasonable time from the effective date of termination.
Same Company Policy A company policy partakes of the
nature of an implied contract between the employer and employee.
A company policy partakes of the nature of an implied contract
between the employer and employee. In Parts Depot, Inc. v.
Beiswenger, 170 S.W.3d 354 (Ky. 2005), it has been held that:
[E]mployer statements of policy . . . can give rise to contractual
rights in employees without evidence that the parties mutually
agreed that the policy statements would create contractual rights
in the employee, and, hence, although the statement of policy is
signed by neither party, can be unilaterally amended by the
employer without notice to the employee, and contains no
reference to a specific employee, his job description or
compensation, and although no reference was made to the policy
statement in preemployment interviews and the employee does
not learn of its existence until after his hiring. Toussaint, 292
N.W.2d at 892. The principle is akin to estoppel. Once an
employer establishes an express personnel policy and the
employee continues to work while the policy remains in
effect, the policy is deemed an implied contract for so long
as it remains in effect. If the employer unilaterally
changes the policy, the terms of the implied contract are
also thereby changed.
Same Termination of Employment Nominal Damages Case
law has settled that an employer who terminates an employee for a
valid cause but does so through invalid procedure is liable to pay
the latter nominal damages.Case law has settled that an
employer who terminates an employee for a valid cause but does
so through invalid procedure is liable to pay the latter nominal
damages. In Agabon v. NLRC (Agabon), 442 SCRA 573 (2004), the
Court pronounced that where the dismissal is for a just cause, the
lack of statutory due process should not nullify the dismissal, or
render it illegal, or ineffectual. However, the employer should
indemnify the
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employee for the violation of his statutory rights. Thus, in

Agabon, the employer was ordered to pay the employee nominal
damages in the amount of P30,000.00.
Same Same If the dismissal is based on a just cause under
Article 282 of the Labor Code (now Article 296) but the employer
failed to comply with the notice requirement, the sanction to be

imposed upon him should be tempered because the dismissal
process was, in effect, initiated by an act imputable to the
employee if the dismissal is based on an authorized cause under
Article 283 (now Article 297) but the employer failed to comply
with the notice requirement, the sanction should be stiffer because
the dismissal process was initiated by the employers exercise of his
management prerogative.It was explained that if the dismissal
is based on a just cause under Article 282 of the Labor Code (now
Article 296) but the employer failed to comply with the notice
requirement, the sanction to be imposed upon him should be
tempered because the dismissal process was, in effect, initiated by
an act imputable to the employee if the dismissal is based on an
authorized cause under Article 283 (now Article 297) but the
employer failed to comply with the notice requirement, the
sanction should be stiffer because the dismissal process was
initiated by the employers exercise of his management
prerogative. Hence, in Jaka, where the employee was dismissed
for an authorized cause of retrenchment as contradistinguished
from the employee in Agabon who was dismissed for a just cause
of neglect of duty the Court ordered the employer to pay the
employee nominal damages at the higher amount of P50,000.00.
Corporation Law Liability of Corporate Directors Requisites
to Hold Corporate Directors, Trustees or Officers Personally Liable
for Corporate Acts.It is hornbook principle that personal
liability of corporate directors, trustees or officers attaches only
when: (a) they assent to a patently unlawful act of the
corporation, or when they are guilty of bad faith or gross
negligence in directing its affairs, or when there is a conflict of
interest resulting in damages to the corporation, its stockholders
or other persons (b) they consent to the issuance of watered down
stocks or when, having knowledge of such issuance, do not
forthwith file with the corporate secretary their written objection
(c) they agree to hold themselves personally and solidarily liable
with the corporation or (d) they are made by specific provision of
law personally answerable for their corporate action.
688

Civil Law Bad Faith It is a wellsettled rule that bad faith
cannot be presumed and he who alleges bad faith has the onus of
proving it.A judicious perusal of the records show that other
than her unfounded assertions on the matter, there is no evidence

to support the fact that the individual petitioners herein, in their
capacity as Abbotts officers and employees, acted in bad faith or
were motivated by ill will in terminating Alcarazs services. The
fact that Alcaraz was made to resign and not allowed to enter the
workplace does not necessarily indicate bad faith on Abbotts part
since a sufficient ground existed for the latter to actually proceed
with her termination. On the alleged loss of her personal
belongings, records are bereft of any showing that the same could
be attributed to Abbott or any of its officers. It is a wellsettled
rule that bad faith cannot be presumed and he who alleges bad
faith has the onus of proving it. All told, since Alcaraz failed to
prove any malicious act on the part of Abbott or any of its officers,
the Court finds the award of moral or exemplary damages
unwarranted.
BRION, J., Dissenting Opinion:
Labor Law Appeals View that a labor case finds its way into
the judicial system from the National Labor Relations Commission
(NLRC) whose decision is final and executory When an
administrative ruling (or any ruling for that matter) is already
final and unappealable, the only recourse open under the Rules of
Court is through a limited review on jurisdictional grounds under
Rule 65.A labor case finds its way into the judicial system from
the NLRC whose decision is final and executory. Finality
simply means that the NLRC ruling is no longer appealable
the legal intent is to confine adjudication of labor cases to labor
tribunals with the expertise in these cases and thereby bring the
resolution of the case to a close at the soonest possible time. When
an administrative ruling (or any ruling for that matter) is already
final and unappealable, the only recourse open under the Rules of
Court is through a limited review on jurisdictional grounds
under Rule 65. This has been the mode of review followed since
the Labor Code took effect in November 1974 labor cases were
directly brought to this Court but only on jurisdictional grounds
under Rule 65.
Same Same View that under Section 65 of the Rules of Court,
the sole ground or issue allowed is jurisdictional the presence or
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absence of grave abuse of discretion on the part of the National

Labor Relations Commission (NLRC) in ruling on the case
whereas, a Rule 45 review the Supreme Court simply determines
whether the legal correctness of the Court of Appeals finding that

the NLRC ruling of illegal dismissal had basis in fact and in law.
Under the Rule 65 review by the CA, Montoya reiterates that
the sole ground or issue allowed is jurisdictional the presence
or absence of grave abuse of discretion on the part of the NLRC in
ruling on the case. To state the obvious, this kind of review would
have made it easier for the CA to handle the case in the absence
of a grave abuse of discretion, it can dismiss labor cases for lack of
grave abuse of discretion as we do in this Court. From the CA,
further recourse is through a Rule 45 review by this Court on
questions of law in accordance with prevailing rulings. The
office of a petition for review on certiorari is not to examine and
settle factual questions already ruled upon below. In this
review, the Court simply determines whether the legal
correctness of the CAs finding that the NLRC ruling of
illegal dismissal had basis in fact and in law.
Same Probationary Employees View that while the
respondent might have been hired as a probationary employee, the
petitioners evidence did not establish the employers compliance
with the probationary employment requirements under Article 281
of the Labor Code (as amended) and Section 6(d) of the
Implementing Rules of Book VI, Rule I of the Labor Code (as
amended). Thus, the respondent should be considered a regular
employee and the case should be reviewed on this basis.While
the respondent might have been hired as a probationary
employee, the petitioners evidence did not establish the
employers compliance with the probationary employment
requirements under Article 281 of the Labor Code (as
amended) and Section 6(d) of the Implementing Rules of
Book VI, Rule I of the Labor Code (as amended). Thus, the
respondent should be considered a regular employee and the case
should be reviewed on this basis. Article 281 of the Labor Code, as
amended, provides: ART. 281. Probationary employment.
Probationary employment shall not exceed six (6) months from
the date the employee started working, unless it is covered by an
apprenticeship agreement stipulating a longer period. The
services of an employee who has been engaged on a probationary
basis may be terminated for a just cause or when he fails to
qualify as a regular employee in accordance with reasonable
standards made known
690
by the employer to the employee at the time of his

engagement. An employee who is allowed to work after a
probationary period shall be considered a regular employee.
[italics supplied emphasis ours] Further, Section 6(d) of the
Implementing Rules of Book VI, Rule I of the Labor Code, as
amended, states: Sec. 6. Probationary employment.There is
probationary employment where the employee, upon his
engagement, is made to undergo a trial period during which the
employer determines his fitness to qualify for regular
employment, based on reasonable standards made known to
him at the time of engagement. [emphasis supplied]
Same Same View that a valid probationary employment
requires the concurrence of two requirements Failing in one or
both, the employee, even if initially hired as a probationary
employee, should be viewed and considered a regular employee.A
valid probationary employment requires the concurrence of two
requirements. First, the employer shall make known the
reasonable standard (performance standard) whose compliance
will render the employee qualified to be a regular employee.
Second, the employer shall inform the employee of the
applicable performance standard at the time of his/her
engagement. Failing in one or both, the employee, even if
initially hired as a probationary employee, should be viewed and
considered a regular employee. The ponencia apparently fully
agrees with the above statement of the applicable law as it
substantially recites the same requirements, including the
consequence that upon failure to comply with these same
requirements, the employee is deemed as a regular and not a
probationary employee. It continues, however, with a twist that
effectively negates what it has stated and admitted about the
need to communicate the regularization standards to the
employee.
Same Termination of Employment View that to justify the
dismissal of an employee, the employer carries the burden of
proving that the dismissal was for a just cause and with the
observance of due process prior to dismissal.To justify the
dismissal of an employee, the employer carries the burden of
proving that the dismissal was for a just cause and with the
observance of due process prior to dismissal. The employer has to
discharge this burden by clear, accurate, consistent and
convincing evidence in case of doubt, the presumption in the
employees favor under Article 4 of the Labor Code should apply.
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Same Same View that a probationary employee does not have
lesser rights than a regular employee under the Labor Code in
terms of the just cause for the termination of an employment.An
important legal point that should not be lost in considering this
case is that a probationary employee does not have lesser
rights than a regular employee under the Labor Code in
terms of the just cause for the termination of an
employment. While the strict application of Article 282 of the
Labor Code may be relaxed because the employee is still under
probation (so that analogous probationary status rules may
apply), the same essential just cause for dismissal must be
present and must be proven. In other words, probationary
employment does not mean that the employee is under an
employment at will situation as that phrase is understood in
American jurisprudence. To reiterate, the fact that the respondent
was still in her probationary period of employment did not lessen
the burden of proof that the law imposed on the petitioners to
prove the just cause for her dismissal. Probationary employees
are protected by the security of tenure provision of the
Constitution and they cannot be removed from their position
except only for cause.
PETITION for review on certiorari of the decision and

resolution of the Court of Appeals.
The facts are stated in the opinion of the Court.
Laguesma, Magsalin, Consulta & Gastardo for
petitioner.
Jimenez, Baroque and Salazar for respondent.
PERLASBERNABE, J.:
Assailed in this petition for review on certiorari1 are the
Decision2 dated December 10, 2009 and Resolution3 dated
June 9, 2010 of the Court of Appeals (CA) in CAG.R. SP
No.
_______________
1Rollo (G.R. No. 192571), pp. 1458.
2 Id., at pp. 10401054. Penned by Associate Justice Isaias Dicdican,
with Associate Justices Remedios A. SalazarFernando and Romeo F.
Barza, concurring.
3Id., at pp. 11391140.
692
101045 which pronounced that the National Labor

Relations Commission (NLRC) did not gravely abuse its
discretion when it ruled that respondent Pearlie Ann F.
Alcaraz (Alcaraz) was illegally dismissed from her
employment.
The Facts
On June 27, 2004, petitioner Abbott Laboratories,
Philippines (Abbott) caused the publication in a major
broadsheet newspaper of its need for a Medical and
Regulatory Affairs Manager (Regulatory Affairs Manager)
who would: (a) be responsible for drug safety surveillance
operations, staffing, and budget (b) lead the development
and implementation of standard operating
procedures/policies for drug safety surveillance and
vigilance and (c) act as the primary interface with internal
and external customers regarding safety operations and
queries.4 Alcaraz who was then a Regulatory Affairs and
Information Manager at Aventis Pasteur Philippines,
Incorporated (another pharmaceutical company like
Abbott) showed interest and submitted her application
on October 4, 2004.5
On December 7, 2004, Abbott formally offered Alcaraz
the abovementioned position which was an item under the
companys Hospira Affiliate Local Surveillance Unit
(ALSU) department.6 In Abbotts offer sheet,7 it was stated
that Alcaraz
_______________
4Id., at p. 74.
5Id., at pp. 7576.
6 Id., at pp. 5152. Based on Abbotts organizational structure, the
Regulatory Affairs Manager was under the umbrella of Hospira ALSU, a
subdepartment in Abbotts Hospital Care Division. ALSU serves as a
transition body of Hospira, Inc., a corporation based in the United States
of America, while it is in the process of organization in the Philippines.
Abbott intended to cede the qualified employees under ALSU to Hospira
once the latter obtained its own legal personality to engage in business in
the Philippines.
7 Id., at pp. 165168. Abbott sent Alcaraz an initial offer sheet on
December 1, 2004. The compensation contained therein was re
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was to be employed on a probationary basis.8

http://central.com.ph/sfsreader/session/0000015bf05c5ab1f5af9b23003600fb002c009e/t/?o=False Later that 11/67
was to be employed on a probationary basis.8 Later that

day, she accepted the said offer and received an electronic
mail (email) from Abbotts Recruitment Officer, petitioner
Teresita C. Bernardo (Bernardo), confirming the same.
Attached to Bernardos email were Abbotts organizational
chart and a job description of Alcarazs work.9
On February 12, 2005, Alcaraz signed an employment
contract which stated, inter alia, that she was to be placed
on probation for a period of six (6) months beginning
February 15, 2005 to August 14, 2005. The said contract
was also signed by Abbotts General Manager, petitioner
Edwin Feist (Feist):10
PROBATIONARY EMPLOYMENT
Dear Pearl,
After having successfully passed the preemployment
requirements, you are hereby appointed as follows:
Position Title : Regulatory Affairs
Manager
Department : Hospira
The terms of your employment are:
Nature of Employment : Probationary
Effectivity : February 15, 2005 to
August 14, 2005
Basic Salary : P110,000.00/ month
It is understood that you agree to abide by all existing
policies, rules and regulations of the company, as well as
those, which may be hereinafter promulgated.
_______________
negotiated and thus, the increased offer as per the offer sheet dated December
7, 2004.
8 Id., at pp. 167168.
9 Id., at pp. 127, 169172.
10Id., at p. 174.
694


Unless renewed, probationary appointment expires on the
date indicated subject to earlier termination by the
Company for any justifiable reason.
If you agree to the terms and conditions of your
employment, please signify your conformity below and
return a copy to HRD.
Welcome to Abbott!
Very truly yours,
Sgd.
EDWIN D. FEIST
General Manager
CONFORME:
Sgd.
PEARLIE ANN FERRER
ALCARAZ
During Alcarazs preemployment orientation,

petitioner Allan G. Almazar (Almazar), Hospiras Country
Transition Manager, briefed her on her duties and
responsibilities as Regulatory Affairs Manager, stating
that: (a) she will handle the staff of Hospira ALSU and will
directly report to Almazar on matters regarding Hopiras
local operations, operational budget, and performance
evaluation of the Hospira ALSU Staff who are on
probationary status (b) she must implement Abbotts Code
of Good Corporate Conduct (Code of Conduct), office
policies on human resources and finance, and ensure that
Abbott will hire people who are fit in the organizational
discipline (c) petitioner Kelly Walsh (Walsh), Manager of
the Literature Drug Surveillance Drug Safety of Hospira,
will be her immediate supervisor (d) she should always
coordinate with Abbotts human resource officers in the
management and discipline of the staff (e) Hospira ALSU
will spin off from Abbott in early 2006 and will be officially
incorporated and known as Hospira, Philippines. In the
interim, Hospira ALSU operations will still be under
Abbotts management, excluding the technical aspects of
the operations which is under the
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VOL. 701, JULY 23, 2013 695

control and supervision of Walsh and (f) the processing of

information and/or raw material data subject of Hospira
ALSU operations will be strictly confined and controlled
under the computer system and network being maintained
and operated from the United States. For this purpose, all
those involved in Hospira ALSU are required to use two
identification cards: one, to identify them as Abbotts
employees and another, to identify them as Hospira
employees.11
On March 3, 2005, petitioner Maria Olivia T. Yabut

Misa (Misa), Abbotts Human Resources (HR) Director,
sent Alcaraz an email which contained an explanation of
the procedure for evaluating the performance of
probationary employees and further indicated that Abbott
had only one evaluation system for all of its employees.
Alcaraz was also given copies of Abbotts Code of Conduct
and Probationary Performance Standards and Evaluation
(PPSE) and Performance Excellence Orientation Modules
(Performance Modules) which she had to apply in line with
her task of evaluating the Hospira ALSU staff.12
Abbotts PPSE procedure mandates that the job
performance of a probationary employee should be formally
reviewed and discussed with the employee at least twice:
first on the third month and second on the fifth month from
the date of employment. The necessary Performance
Improvement Plan should also be made during the third
month review in case of a gap between the employees
performance and the standards set. These performance
standards should be discussed in detail with the employee
within the first two (2) weeks on the job. It was equally
required that a signed copy of the PPSE form must be
submitted to Abbotts Human Resources Department
(HRD) and shall serve as documentation of the employees
performance during his/her probationary period.
_______________
11Id., at pp. 127128.
12Id., at pp. 10421043.
696

This shall form the basis for recommending the

confirmation or termination of the probationary
employment.13
During the course of her employment, Alcaraz noticed
that some of the staff had disciplinary problems. Thus, she
would reprimand them for their unprofessional behavior
such as nonobservance of the dress code, moonlighting,
and disrespect of Abbott officers. However, Alcarazs
method of management was considered by Walsh to be too
strict.14 Alcaraz approached Misa to discuss these
concerns and was told to lie low and let Walsh handle the
matter. Misa even assured her that Abbotts HRD would

support her in all her management decisions.15
On April 12, 2005, Alcaraz received an email from Misa
requesting immediate action on the staffs performance
evaluation as their probationary periods were about to end.
This Alcaraz eventually submitted.16
On April 20, 2005, Alcaraz had a meeting with
petitioner Cecille Terrible (Terrible), Abbotts former HR
Director, to discuss certain issues regarding staff
performance standards. In the course thereof, Alcaraz
accidentally saw a printed copy of an email sent by Walsh
to some staff members which essentially contained queries
regarding the formers job performance. Alcaraz asked if
Walshs action was the normal process of evaluation.
Terrible said that it was not.17
On May 16, 2005, Alcaraz was called to a meeting with
Walsh and Terrible where she was informed that she failed
to meet the regularization standards for the position of
Regulatory Affairs Manager.18 Thereafter, Walsh and
Terrible requested Alcaraz to tender her resignation, else
they be forced
_______________
13Id.
14Id., at p. 1044.
15Id.
16Id.
17Id., at pp. 10441045.
18Id., at p. 1045.
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to terminate her services. She was also told that,

regardless of her choice, she should no longer report for
work and was asked to surrender her office identification
cards. She requested to be given one week to decide on the
same, but to no avail.19
On May 17, 2005, Alcaraz told her administrative
assistant, Claude Gonzales (Gonzales), that she would be
on leave for that day. However, Gonzales told her that
Walsh and Terrible already announced to the whole
Hospira ALSU staff that Alcaraz already resigned due to
health reasons.20
On May 23, 2005, Walsh, Almazar, and Bernardo

personally handed to Alcaraz a letter stating that her
services had been terminated effective May 19, 2005.21 The
letter detailed the reasons for Alcarazs termination
particularly, that Alcaraz: (a) did not manage her time
effectively (b) failed to gain the trust of her staff and to
build an effective rapport with them (c) failed to train her
staff effectively and (d) was not able to obtain the
knowledge and ability to make sound judgments on case
processing and article review which were necessary for the
proper performance of her duties.22 On May 27, 2005,
Alcaraz received another copy of the said termination letter
via registered mail.23
Alcaraz felt that she was unjustly terminated from her
employment and thus, filed a complaint for illegal
dismissal and damages against Abbott and its officers,
namely, Misa, Bernardo, Almazar, Walsh, Terrible, and
Feist.24 She claimed that she should have already been
considered as a regular and not a probationary employee
given Abbotts failure to
_______________
19Id.
20Id., at p. 1046.
21Id., at p. 1047.
22Id., at pp. 1921, 78, and 8081.
23Id., at p. 1047.
24 Id., at p. 255. See Labor Arbiter (LA) Decision dated March 30,
2006.
698

inform her of the reasonable standards for her

regularization upon her engagement as required under
Article 29525 of the Labor Code. In this relation, she
contended that while her employment contract stated that
she was to be engaged on a probationary status, the same
did not indicate the standards on which her regularization
would be based.26 She further averred that the individual
petitioners maliciously connived to illegally dismiss her
when: (a) they threatened her with termination (b) she
was ordered not to enter company premises even if she was
still an employee thereof and (c) they publicly announced
that she already resigned in order to humiliate her.27
On the contrary, petitioners maintained that Alcaraz

was validly terminated from her probationary employment
given her failure to satisfy the prescribed standards for her
regularization which were made known to her at the time
of her engagement.28
The LA Ruling
In a Decision dated March 30, 2006,29 the LA dismissed
Alcarazs complaint for lack of merit.
The LA rejected Alcarazs argument that she was not
informed of the reasonable standards to qualify as a
regular employee considering her admissions that she was
briefed by Almazar on her work during her preemployment
orientation meeting30 and that she received copies of
Abbotts Code of Conduct and Performance Modules which
were used for
_______________
25 Formerly, Article 281 of the Labor Code renumbered pursuant to
Republic Act No. 10151.
26Rollo (G.R. No. 192571), p. 267.
27Id., at pp. 261262.
28Id., at pp. 263267.
29Id., at pp. 255274. Penned by Labor Arbiter Jovencio Ll. Mayor, Jr.
30Id., at p. 269.
699
VOL. 701, JULY 23, 2013 699

evaluating all types of Abbott employees.31 As Alcaraz was

unable to meet the standards set by Abbott as per her
performance evaluation, the LA ruled that the termination
of her probationary employment was justified.32 Lastly, the
LA found that there was no evidence to conclude that
Abbotts officers and employees acted in bad faith in
terminating Alcarazs employment.33
Displeased with the LAs ruling, Alcaraz filed an appeal
with the National Labor Relations Commission (NLRC).
The NLRC Ruling
On September 15, 2006, the NLRC rendered a
Decision,34 annulling and setting aside the LAs ruling, the
dispositive portion of which reads:
WHEREFORE, the Decision of the Labor Arbiter dated

31 March 2006 [sic] is hereby reversed, annulled and set
aside and judgment is hereby rendered:
1. Finding respondents Abbot [sic] and individual

respondents to have committed illegal dismissal
2. Respondents are ordered to immediately reinstate
complainant to her former position without loss of seniority
rights immediately upon receipt hereof
3. To jointly and severally pay complainant backwages
computed from 16 May 2005 until finality of this decision.
As of the date hereof the backwages is computed at
a. Backwages for 15 months PhP 1,650,000.00
_______________
31Id., at p. 270.
32Id., at pp. 271272.
33Id., at p. 273.
34 Id., at pp. 356378. Penned by Commissioner Romeo L. Go, with
Commissioners Benedicto Ernesto R. Bitonio, Jr. (on leave) and Perlita B. Velasco,
concurring.
700


b. 13th month pay 110,000.00
TOTAL PhP 1,760,000.00
4. Respondents are ordered to pay complainant moral
damages of P50,000.00 and exemplary damages of
P50,000.00.
5. Respondents are also ordered to pay attorneys fees of
10% of the total award.
6. All other claims are dismissed for lack of merit.
SO ORDERED.35
The NLRC reversed the findings of the LA and ruled

that there was no evidence showing that Alcaraz had been
apprised of her probationary status and the requirements
which she should have complied with in order to be a
regular employee.36 It held that Alcarazs receipt of her job
description and Abbotts Code of Conduct and Performance
Modules was not equivalent to her being actually informed
of the performance standards upon which she should have
been evaluated on.37 It further observed that Abbott did not
comply with its own standard operating procedure in
evaluating probationary employees.38 The NLRC was also
not convinced that Alcaraz was terminated for a valid
cause given that petitioners allegation of Alcarazs poor
performance remained unsubstantiated.39
Petitioners filed a motion for reconsideration which was

denied by the NLRC in a Resolution dated July 31, 2007.40
_______________
35Id., at pp. 377378.
36Id., at p. 367.
37Id., at p. 368.
38Id., at p. 369.
39Id., at pp. 370373.
40 Id., at pp. 413416. Penned by Commissioner Romeo L. Go, with
Presiding Commissioner Gerardo C. Nograles and Commissioner Perlita
B. Velasco, concurring.
701
VOL. 701, JULY 23, 2013 701

Aggrieved, petitioners filed with the CA a Petition for

Certiorari with Prayer for Issuance of a Temporary
Restraining Order and/or Writ of Preliminary Injunction,
docketed as CA G.R. SP No. 101045 (First CA Petition),
alleging grave abuse of discretion on the part of NLRC
when it ruled that Alcaraz was illegally dismissed.41
Pending resolution of the First CA Petition, Alcaraz
moved for the execution of the NLRCs Decision before the
LA, which petitioners strongly opposed. The LA denied the
said motion in an Order dated July 8, 2008 which was,
however, eventually reversed on appeal by the NLRC.42
Due to the foregoing, petitioners filed another Petition for
Certiorari with the CA, docketed as CA G.R. SP No.
111318 (Second CA Petition), assailing the propriety of the
execution of the NLRC decision.43
The CA Ruling
With regard to the First CA Petition, the CA, in a
Decision44 dated December 10, 2009, affirmed the ruling of
the NLRC and held that the latter did not commit any
grave abuse of discretion in finding that Alcaraz was
illegally dismissed.
It observed that Alcaraz was not apprised at the start of
her employment of the reasonable standards under which
she could qualify as a regular employee.45 This was based
on its examination of the employment contract which
showed that the same did not contain any standard of
performance or any stipulation that Alcaraz shall undergo
a performance evaluation before she could qualify as a
regular employee.46 It also
_______________
41Id., at pp. 417450.
42Id., at p. 1403.
43Id.
44Id., at pp. 10401054.
45Id., at p. 1052.
46Id.
702

found that Abbott was unable to prove that there was any
reasonable ground to terminate Alcarazs employment.47
Abbott moved for the reconsideration of the aforementioned
ruling which was, however, denied by the CA in a
Resolution48 dated June 9, 2010.
The CA likewise denied the Second CA Petition in a
Resolution dated May 18, 2010 (May 18, 2010 Resolution)
and ruled that the NLRC was correct in upholding the
execution of the NLRC Decision.49 Thus, petitioners filed a
motion for reconsideration.
While the petitioners motion for reconsideration of the
CAs May 18, 2010 Resolution was pending, Alcaraz again
moved for the issuance of a writ of execution before the LA.
On June 7, 2010, petitioners received the LAs order
granting Alcarazs motion for execution which they in turn
appealed to the NLRC through a Memorandum of
Appeal dated June 16, 2010 (June 16, 2010 Memorandum
of Appeal) on the ground that the implementation of the
LAs order would render its motion for reconsideration
moot and academic.50
Meanwhile, petitioners motion for reconsideration of the
CAs May 18, 2010 Resolution in the Second CA Petition
was denied via a Resolution dated October 4, 2010.51 This
attained finality on January 10, 2011 for petitioners
failure to timely appeal the same.52 Hence, as it stands,
only the issues in the First CA petition are left to be
resolved.
Incidentally, in her Comment dated November 15, 2010,
Alcaraz also alleges that petitioners were guilty of forum
shopping when they filed the Second CA Petition pending
the resolution of their motion for reconsideration of the
CAs De
_______________
47Id., at p. 1053.
48Id., at pp. 11391140.
49Id., at p. 1218.
50Id.
51Id., at p. 1219.
52Rollo (G.R. No. 193976), p. 30.
703
VOL. 701, JULY 23, 2013 703

cember 10, 2009 Decision i.e., the decision in the First CA

Petition.53 She also contends that petitioners have not
complied with the certification requirement under Section
5, Rule 7 of the Rules of Court when they failed to disclose
in the instant petition the filing of the June 16, 2010
Memorandum of Appeal filed before the NLRC.54
The Issues Before the Court
The following issues have been raised for the Courts
resolution: (a) whether or not petitioners are guilty of
forum shopping and have violated the certification
requirement under Section 5, Rule 7 of the Rules of Court
(b) whether or not Alcaraz was sufficiently informed of the
reasonable standards to qualify her as a regular employee
(c) whether or not Alcaraz was validly terminated from her
employment and (d) whether or not the individual
petitioners herein are liable.
The Courts Ruling
A. Forum Shopping and Violation
of Section 5, Rule 7 of the Rules
of Court.
At the outset, it is noteworthy to mention that the
prohibition against forum shopping is different from a
violation of the certification requirement under Section 5,
Rule 7 of the Rules of Court. In Sps. Ong v. CA,55 the Court
explained that:
x x x The distinction between the prohibition against

forum shopping and the certification requirement should by
now be too elementary to be misunderstood. To reiterate,
compliance with the certification against forum
_______________
53Rollo (G.R. No. 192571), pp. 12231228.
54Id., at p. 1224.
55433 Phil. 490, 501502 384 SCRA 139, 148 (2002).
704

shopping is separate from and independent of the avoidance

of the act of forum shopping itself. There is a difference in
the treatment between failure to comply with the
certification requirement and violation of the prohibition
against forum shopping not only in terms of imposable
sanctions but also in the manner of enforcing them. The
former constitutes sufficient cause for the dismissal without
prejudice [to the filing] of the complaint or initiatory
pleading upon motion and after hearing, while the latter is
a ground for summary dismissal thereof and for direct
contempt. xxx.56
As to the first, forum shopping takes place when a

litigant files multiple suits involving the same parties,
either simultaneously or successively, to secure a favorable
judgment. It exists where the elements of litis pendentia
are present, namely: (a) identity of parties, or at least such
parties who represent the same interests in both actions
(b) identity of rights asserted and relief prayed for, the
relief being founded on the same facts and (c) the identity
with respect to the two preceding particulars in the two (2)
cases is such that any judgment that may be rendered in
the pending case, regardless of which party is successful,
would amount to res judicata in the other case.57
In this case, records show that, except for the element of
identity of parties, the elements of forum shopping do not
exist. Evidently, the First CA Petition was instituted to
question the ruling of the NLRC that Alcaraz was illegally
dismissed. On the other hand, the Second CA Petition
pertains to the propriety of the enforcement of the
judgment award pending the resolution of the First CA
Petition and the finality of the decision in the labor dispute
between Alcaraz and
_______________
56Id., at pp. 501502 p. 148. (Citations omitted)
57 Republic v. Mangotara, G.R. Nos. 170375, 170505, 17335556,
173401, 17356364, 178779 & 178894, July 7, 2010, 624 SCRA 360, 428,
citing NBIMicrosoft Corporation v. Hwang, 499 Phil. 423, 435436 460
SCRA 428, 440441 (2005).
705
VOL. 701, JULY 23, 2013 705

the petitioners. Based on the foregoing, a judgment in the

Second CA Petition will not constitute res judicata insofar
as the First CA Petition is concerned. Thus, considering
that the two petitions clearly cover different subject
matters and causes of action, there exists no forum
shopping.
As to the second, Alcaraz further imputes that the
petitioners violated the certification requirement under
Section 5, Rule 7 of the Rules of Court58 by not disclosing
the fact that it filed the June 16, 2010 Memorandum of
Appeal before the NLRC in the instant petition.
In this regard, Section 5(b), Rule 7 of the Rules of Court
requires that a plaintiff who files a case should provide a
complete statement of the present status of any pending
case if the latter involves the same issues as the one that
was filed. If there is no such similar pending case, Section
5(a) of the same rule provides that the plaintiff is obliged to
declare under oath that to the best of his knowledge, no
such other action or claim is pending.
Records show that the issues raised in the instant
petition and those in the June 16, 2010 Memorandum of
Appeal filed with the NLRC likewise cover different subject
matters and causes of action. In this case, the validity of
Alcarazs dis
_______________
58 Sec. 5. Certification against forum shopping.The plaintiff or
principal party shall certify under oath in the complaint or other initiatory
pleading asserting a claim for relief, or in a sworn certification annexed
thereto and simultaneously filed therewith: (a) that he has not theretofore
commenced any action or filed any claim involving the same issues in any
court, tribunal or quasijudicial agency and, to the best of his knowledge,
no such other action or claim is pending therein (b) if there is such other
pending action or claim, a complete statement of the present status
thereof and (c) if he should thereafter learn that the same or similar
action or claim has been filed or is pending, he shall report that fact
within five (5) days therefrom to the court wherein his aforesaid complaint
or initiatory pleading has been filed.
xxxx
706

missal is at issue whereas in the said Memorandum of

Appeal, the propriety of the issuance of a writ of execution
was in question. Thus, given the dissimilar issues,
petitioners did not have to disclose in the present petition
the filing of their June 16, 2010 Memorandum of Appeal
with the NLRC. In any event, considering that the issue on
the propriety of the issuance of a writ of execution had been
resolved in the Second CA Petition which in fact had
already attained finality the matter of disclosing the
June 16, 2010 Memorandum of Appeal is now moot and
academic.
Having settled the foregoing procedural matter, the
Court now proceeds to resolve the substantive issues.
B. Probationary employment
grounds for termination.
A probationary employee, like a regular employee,
enjoys security of tenure. However, in cases of probationary
employment, aside from just or authorized causes of
termination, an additional ground is provided under Article
295 of the Labor Code, i.e., the probationary employee may
also be terminated for failure to qualify as a regular
employee in accordance with the reasonable standards
made known by the employer to the employee at the time of
the engagement.59 Thus, the services of an employee who
has been engaged on probationary basis may be terminated
for any of the following: (a) a just or (b) an authorized
cause and (c) when he fails to qualify as a regular
employee in accordance with reasonable standards
prescribed by the employer.60
Corollary thereto, Section 6(d), Rule I, Book VI of the
Implementing Rules of the Labor Code provides that if the
employer fails to inform the probationary employee of the
rea
_______________
59Robinsons Galleria/Robinsons Supermarket Corporation v. Ranchez,
G.R. No. 177937, January 19, 2011, 640 SCRA 135, 142.
60Id.
707
VOL. 701, JULY 23, 2013 707

sonable standards upon which the regularization would be

based on at the time of the engagement, then the said
employee shall be deemed a regular employee, viz.:
(d) In all cases of probationary employment, the employer

shall make known to the employee the standards under
which he will qualify as a regular employee at the time of
his engagement. Where no standards are made known to
the employee at that time, he shall be deemed a regular
employee.
In other words, the employer is made to comply with two

(2) requirements when dealing with a probationary
employee: first, the employer must communicate the
regularization standards to the probationary employee and
second, the employer must make such communication at
the time of the probationary employees engagement. If the
employer fails to comply with either, the employee is
deemed as a regular and not a probationary employee.
Keeping with these rules, an employer is deemed to have
made known the standards that would qualify a
probationary employee to be a regular employee when it
has exerted reasonable efforts to apprise the employee of
what he is expected to do or accomplish during the trial
period of probation. This goes without saying that the
employee is sufficiently made aware of his probationary
status as well as the length of time of the probation.
The exception to the foregoing is when the job is self
descriptive in nature, for instance, in the case of maids,
cooks, drivers, or messengers.61 Also, in Aberdeen Court,
Inc. v. Agustin,62 it has been held that the rule on notifying
a probationary employee of the standards of regularization
should not be used to exculpate an employee who acts in a
manner contrary to basic knowledge and common sense in
regard to
_______________
61Id., at p. 145.
62495 Phil. 706, 716717 456 SCRA 32, 43 (2005).
708

which there is no need to spell out a policy or standard to

be met. In the same light, an employees failure to perform
the duties and responsibilities which have been clearly
made known to him constitutes a justifiable basis for a
probationary employees nonregularization.
In this case, petitioners contend that Alcaraz was
terminated because she failed to qualify as a regular
employee according to Abbotts standards which were made

known to her at the time of her engagement. Contrarily,
Alcaraz claims that Abbott never apprised her of these
standards and thus, maintains that she is a regular and
not a mere probationary employee.
The Court finds petitioners assertions to be welltaken.
A punctilious examination of the records reveals that
Abbott had indeed complied with the abovestated
requirements. This conclusion is largely impelled by the
fact that Abbott clearly conveyed to Alcaraz her duties and
responsibilities as Regulatory Affairs Manager prior to,
during the time of her engagement, and the incipient
stages of her employment. On this score, the Court finds it
apt to detail not only the incidents which point out to the
efforts made by Abbott but also those circumstances which
would show that Alcaraz was wellapprised of her
employers expectations that would, in turn, determine her
regularization:
(a) On June 27, 2004, Abbott caused the publication in
a major broadsheet newspaper of its need for a Regulatory
Affairs Manager, indicating therein the job description for
as well as the duties and responsibilities attendant to the
aforesaid position this prompted Alcaraz to submit her
application to Abbott on October 4, 2004
(b) In Abbotts December 7, 2004 offer sheet, it was
stated that Alcaraz was to be employed on a probationary
status
(c) On February 12, 2005, Alcaraz signed an
employment contract which specifically stated, inter alia,
that she was to
709
VOL. 701, JULY 23, 2013 709

be placed on probation for a period of six (6) months

beginning February 15, 2005 to August 14, 2005
(d) On the day Alcaraz accepted Abbotts employment
offer, Bernardo sent her copies of Abbotts organizational
structure and her job description through email
(e) Alcaraz was made to undergo a preemployment
orientation where Almazar informed her that she had to
implement Abbotts Code of Conduct and office policies on
human resources and finance and that she would be
reporting directly to Walsh
(f) Alcaraz was also required to undergo a training
program as part of her orientation
(g) Alcaraz received copies of Abbotts Code of Conduct

and Performance Modules from Misa who explained to her
the procedure for evaluating the performance of
probationary employees she was further notified that
Abbott had only one evaluation system for all of its
employees and
(h) Moreover, Alcaraz had previously worked for
another pharmaceutical company and had admitted to
have an extensive training and background to acquire the
necessary skills for her job.63
Considering the totality of the abovestated
circumstances, it cannot, therefore, be doubted that Alcaraz
was wellaware that her regularization would depend on
her ability and capacity to fulfill the requirements of her
position as Regulatory Affairs Manager and that her
failure to perform such would give Abbott a valid cause to
terminate her probationary employment.
Verily, basic knowledge and common sense dictate that
the adequate performance of ones duties is, by and of itself,
an inherent and implied standard for a probationary
employee to be regularized such is a regularization
standard which need
_______________
63Rollo (G.R. No. 192571), p. 1201.
710

not be literally spelled out or mapped into technical

indicators in every case. In this regard, it must be observed
that the assessment of adequate duty performance is in the
nature of a management prerogative which when
reasonably exercised as Abbott did in this case should
be respected. This is especially true of a managerial
employee like Alcaraz who was tasked with the vital
responsibility of handling the personnel and important
matters of her department.
In fine, the Court rules that Alcarazs status as a
probationary employee and her consequent dismissal must
stand. Consequently, in holding that Alcaraz was illegally
dismissed due to her status as a regular and not a
probationary employee, the Court finds that the NLRC
committed a grave abuse of discretion.
To elucidate, records show that the NLRC based its

decision on the premise that Alcarazs receipt of her job
description and Abbotts Code of Conduct and Performance
Modules was not equivalent to being actually informed of
the performance standards upon which she should have
been evaluated on.64 It, however, overlooked the legal
implication of the other attendant circumstances as
detailed herein which should have warranted a contrary
finding that Alcaraz was indeed a probationary and not a
regular employee more particularly the fact that she was
wellaware of her duties and responsibilities and that her
failure to adequately perform the same would lead to her
nonregularization and eventually, her termination.
Accordingly, by affirming the NLRCs pronouncement
which is tainted with grave abuse of discretion, the CA
committed a reversible error which, perforce, necessitates
the reversal of its decision.
_______________
64Id., at pp. 367368, 370.
711
VOL. 701, JULY 23, 2013 711


C. Probationary employment
termination procedure.
A different procedure is applied when terminating a
probationary employee the usual twonotice rule does not
govern.65
_______________
65Refers to the procedure stated in Article 291(b) of the Labor Code, as
renumbered pursuant to Republic Act No. 10151, viz.:
Article 291. Miscellaneous Provisions.
xxxx
(b) Subject to the constitutional right of workers to security of tenure
and their right to be protected against dismissal except for a just and
authorized cause and without prejudice to the requirement of notice under
Article 283 of this Code, the employer shall furnish the worker whose
employment is sought to be terminated a written notice containing a
statement of the cause for termination and shall afford the latter ample
opportunity to be heard and to defend himself with the assistance of his
representative if he so desires in accordance with company rules and
regulations promulgated pursuant to guidelines set by the Department of

Labor and Employment.
xxxx
This procedure is also found in Section 2(d), Rule I, Book VI of the
Omnibus Rules Implementing the Labor Code which state:
xxxx
(d) In all cases of termination of employment, the following
standards of due process shall be substantially observed:
For termination of employment based on just causes as defined in
Article 282 [now, Article 296] of the Labor Code:
(i) A written notice served on the employee specifying the
ground or grounds for termination, and giving said employee
reasonable opportunity within which to explain his side.
(ii) A hearing or conference during which the employee
concerned, with the assistance of counsel if he so desires is
given opportunity to respond to the charge, present his
evidence, or rebut the evidence presented against him.
(iii) A written notice of termination served on the
employee, indicating that upon due consideration of all the
712

Section 2, Rule I, Book VI of the Implementing Rules of the

Labor Code states that [i]f the termination is brought
about by the x x x failure of an employee to meet the
standards of the employer in case of probationary
employment, it shall be sufficient that a written notice is
served the employee, within a reasonable time from the
effective date of termination.
As the records show, Alcarazs dismissal was effected
through a letter dated May 19, 2005 which she received on
May 23, 2005 and again on May 27, 2005. Stated therein
were the reasons for her termination, i.e., that after proper
evaluation, Abbott determined that she failed to meet the
reasonable standards for her regularization considering her
lack of time and people management and decisionmaking
skills, which are necessary in the performance of her
functions as Regulatory Affairs Manager.66 Undeniably,
this written notice sufficiently meets the criteria set forth
above, thereby legitimizing the cause and manner of
Alcarazs dismissal as a probationary employee under the
parameters set by the Labor Code.67
D. Employers violation of company
policy and procedure.
Nonetheless, despite the existence of a sufficient ground

to terminate Alcarazs employment and Abbotts
compliance with the Labor Code termination procedure, it
is readily apparent that Abbott breached its contractual
obligation to Alcaraz when it failed to abide by its own
procedure in evaluating the performance of a probationary
employee.
Veritably, a company policy partakes of the nature of an
implied contract between the employer and employee. In
Parts Depot, Inc. v. Beiswenger,68 it has been held that:
_______________
circumstances, grounds have been established to justify his
termination.
66Rollo, pp. 7881.
67Id., at p. 1047.
68170 S.W.3d 354 (Ky. 2005).
713
VOL. 701, JULY 23, 2013 713

[E]mployer statements of policy . . . can give rise to

contractual rights in employees without evidence that the
parties mutually agreed that the policy statements would
create contractual rights in the employee, and, hence,
although the statement of policy is signed by neither party,
can be unilaterally amended by the employer without notice
to the employee, and contains no reference to a specific
employee, his job description or compensation, and although
no reference was made to the policy statement in pre
employment interviews and the employee does not learn of
its existence until after his hiring. Toussaint, 292 N.W.2d at
892. The principle is akin to estoppel. Once an employer
establishes an express personnel policy and the
employee continues to work while the policy remains
in effect, the policy is deemed an implied contract for
so long as it remains in effect. If the employer
unilaterally changes the policy, the terms of the
implied contract are also thereby changed. (Emphasis
and underscoring supplied.)
Hence, given such nature, company personnel policies

create an obligation on the part of both the employee and
the employer to abide by the same.
Records show that Abbotts PPSE procedure mandates,

inter alia, that the job performance of a probationary
employee should be formally reviewed and discussed with
the employee at least twice: first on the third month and
second on the fifth month from the date of employment.
Abbott is also required to come up with a Performance
Improvement Plan during the third month review to bridge
the gap between the employees performance and the
standards set, if any.69 In addition, a signed copy of the
PPSE form should be submitted to Abbotts HRD as the
same would serve as basis for recommending the
confirmation or termination of the probationary
employment.70
_______________
69Rollo (G.R. No. 192571), p. 1052.
70Id., at p. 1043.
714

In this case, it is apparent that Abbott failed to follow

the abovestated procedure in evaluating Alcaraz. For one,
there lies a hiatus of evidence that a signed copy of
Alcarazs PPSE form was submitted to the HRD. It was not
even shown that a PPSE form was completed to formally
assess her performance. Neither was the performance
evaluation discussed with her during the third and fifth
months of her employment. Nor did Abbott come up with
the necessary Performance Improvement Plan to properly
gauge Alcarazs performance with the set company
standards.
While it is Abbotts management prerogative to
promulgate its own company rules and even subsequently
amend them, this right equally demands that when it does
create its own policies and thereafter notify its employee of
the same, it accords upon itself the obligation to faithfully
implement them. Indeed, a contrary interpretation would
entail a disharmonious relationship in the work place for
the laborer should never be mired by the uncertainty of
flimsy rules in which the latters labor rights and duties
would, to some extent, depend.
In this light, while there lies due cause to terminate
Alcarazs probationary employment for her failure to meet
the standards required for her regularization, and while it
must be further pointed out that Abbott had satisfied its

statutory duty to serve a written notice of termination, the
fact that it violated its own company procedure renders the
termination of Alcarazs employment procedurally infirm,
warranting the payment of nominal damages. A further
exposition is apropos.
Case law has settled that an employer who terminates
an employee for a valid cause but does so through invalid
procedure is liable to pay the latter nominal damages.
In Agabon v. NLRC (Agabon),71 the Court pronounced
that where the dismissal is for a just cause, the lack of
statutory
_______________
71G.R. No. 158693, November 17, 2004, 442 SCRA 573.
715
VOL. 701, JULY 23, 2013 715

due process should not nullify the dismissal, or render it

illegal, or ineffectual. However, the employer should
indemnify the employee for the violation of his statutory
rights.72 Thus, in Agabon, the employer was ordered to pay
the employee nominal damages in the amount of
P30,000.00.73
Proceeding from the same ratio, the Court modified
Agabon in the case of Jaka Food Processing Corporation v.
Pacot (Jaka)74 where it created a distinction between
procedurally defective dismissals due to a just cause, on
one hand, and those due to an authorized cause, on the
other.
It was explained that if the dismissal is based on a just
cause under Article 282 of the Labor Code (now Article 296)
but the employer failed to comply with the notice
requirement, the sanction to be imposed upon him should
be tempered because the dismissal process was, in effect,
initiated by an act imputable to the employee if the
dismissal is based on an authorized cause under Article
283 (now Article 297) but the employer failed to comply
with the notice requirement, the sanction should be stiffer
because the dismissal process was initiated by the
employers exercise of his management prerogative.75
Hence, in Jaka, where the employee was dismissed for an
authorized cause of retrenchment76 as
contradistinguished from the employee in Agabon who was
77
dismissed for a just cause of neglect of duty
http://central.com.ph/sfsreader/session/0000015bf05c5ab1f5af9b23003600fb002c009e/t/?o=False the Court 32/67
dismissed for a just cause of neglect of duty77 the Court

ordered the employer to pay the employee nominal
damages at the higher amount of P50,000.00.
Evidently, the sanctions imposed in both Agabon and
Jaka proceed from the necessity to deter employers from
future
_______________
72Id., at p. 616.
73Id., at p. 620.
74494 Phil. 114, 119121 454 SCRA 119, 125 (2005).
75Id., at p. 121 p. 126.
76Id., at p. 122 p. 127.
77Supra note 71, at p. 605.
716

violations of the statutory due process rights of

employees.78 In similar regard, the Court deems it proper
to apply the same principle to the case at bar for the reason
that an employers contractual breach of its own company
procedure albeit not statutory in source has the
parallel effect of violating the laborers rights. Suffice it to
state, the contract is the law between the parties and thus,
breaches of the same impel recompense to vindicate a right
that has been violated. Consequently, while the Court is
wont to uphold the dismissal of Alcaraz because a valid
cause exists, the payment of nominal damages on account
of Abbotts contractual breach is warranted in accordance
with Article 2221 of the Civil Code.79
Anent the proper amount of damages to be awarded, the
Court observes that Alcarazs dismissal proceeded from her
failure to comply with the standards required for her
regularization. As such, it is undeniable that the dismissal
process was, in effect, initiated by an act imputable to the
employee, akin to dismissals due to just causes under
Article 296 of the Labor Code. Therefore, the Court deems
it appropriate to fix the amount of nominal damages at the
amount of P30,000.00, consistent with its rulings in both
Agabon and Jaka.
E. Liability of individual peti
tioners as corporate officers.
It is hornbook principle that personal liability of
corporate directors, trustees or officers attaches only when:
(a) they assent to a patently unlawful act of the

corporation, or when they are guilty of bad faith or gross
negligence in directing its affairs, or when there is a
conflict of interest resulting in damages to the corporation,
its stockholders or other persons
_______________
78Id., at p. 617.
79 Article 2221. Nominal damages are adjudicated in order that a
right of the plaintiff, which has been violated or invaded by the defendant,
may be vindicated or recognized, and not for the purpose of indemnifying
the plaintiff for any loss suffered by him.
717
VOL. 701, JULY 23, 2013 717

(b) they consent to the issuance of watered down stocks or

when, having knowledge of such issuance, do not forthwith
file with the corporate secretary their written objection (c)
they agree to hold themselves personally and solidarily
liable with the corporation or (d) they are made by specific
provision of law personally answerable for their corporate
action.80
In this case, Alcaraz alleges that the individual
petitioners acted in bad faith with regard to the supposed
crude manner by which her probationary employment was
terminated and thus, should be held liable together with
Abbott. In the same vein, she further attributes the loss of
some of her remaining belongings to them.81
Alcarazs contention fails to persuade.
A judicious perusal of the records show that other than
her unfounded assertions on the matter, there is no
evidence to support the fact that the individual petitioners
herein, in their capacity as Abbotts officers and employees,
acted in bad faith or were motivated by ill will in
terminating Alcarazs services. The fact that Alcaraz was
made to resign and not allowed to enter the workplace does
not necessarily indicate bad faith on Abbotts part since a
sufficient ground existed for the latter to actually proceed
with her termination. On the alleged loss of her personal
belongings, records are bereft of any showing that the same
could be attributed to Abbott or any of its officers. It is a
wellsettled rule that bad faith cannot be presumed and he
who alleges bad faith has the onus of proving it. All told,
since Alcaraz failed to prove any malicious act on the part
of Abbott or any of its officers, the Court finds the award of

moral or exemplary damages unwarranted.
WHEREFORE, the petition is GRANTED. The
Decision dated December 10, 2009 and Resolution dated
June 9, 2010
_______________
80Carag v. NLRC, 548 Phil. 581, 605 520 SCRA 28, 53 (2007), citing
McLeod v. NLRC, 541 Phil. 214, 242 512 SCRA 222, 249 (2007).
81Rollo (G.R. No. 192571), pp. 262, 1046.
718

of the Court of Appeals in CAG.R. SP No. 101045 are

hereby REVERSED and SET ASIDE. Accordingly, the
Decision dated March 30, 2006 of the Labor Arbiter is
REINSTATED with the MODIFICATION that petitioner
Abbott Laboratories, Philippines be ORDERED to pay
respondent Pearlie Ann F. Alcaraz nominal damages in the
amount of P30,000.00 on account of its breach of its own
company procedure.
SO ORDERED.
Sereno (CJ.), Carpio, Velasco, Jr., LeonardoDe Castro,

Peralta, Bersamin, Del Castillo, Abad, Villarama, Jr., Perez
and Reyes, JJ., concur.
Brion, J., See Dissent.
Mendoza, J., But concurs with J. Brion in his views on
the procedural aspect.
Leonen, J., I join J. Brion in his dissent.
DISSENTING OPINION
BRION, J.:
The Case
The case in caption was a Second Division illegal
dismissal case that the Court en banc accepted for decision
pursuant to Section 3, Rule 2 of the Internal Rules of the
Supreme Court.
A. The Issues Posed
The case posed two issues to the Court for resolution.
The first is the manner of review that the Court should
undertake. This is an issue that underlies all the Courts
decision making in light of the various modes of review and
essentials that the Rules of Court require. The second and
core issue relates to the merits of the legality or illegality of

the dismissal: whether the Labor Code requirements
governing the
719
VOL. 701, JULY 23, 2013 719

dismissal of a probationary employee had been complied

with, considered from the prism of the mode of review and
the nature of the decision under review.
B. The Factual Highlights
To briefly summarize the highlights of the case, Abbott
Laboratories, Phils. (petitioner), Cecille A. Terrible, Edwin
D. Feist, Maria Olivia T. YabutMisa, Teresita C.
Bernardo, and Allan G. Almazar (individual petitioners)
are the employer and its senior officials who dismissed
respondent Pearlie Ann F. Alcaraz from employment
within three (3) months from her engagement. The
respondent complained against the petitioners on the
ground that she had been illegally dismissed: (1) she was
not informed of the standards that would govern her as a
probationary employee, as required by the law (the Labor
Code) and its implementing rules (2) the petitioners even
violated the companys own internal rules on the manner of
dismissing probationary employees (3) substantively, her
dismissal was without the required just cause as required
by the law and the rules and (4) her dismissal was done
oppressively and in bad faith.
C. The Rulings Below
The Labor Arbiter ruled that the dismissal had been
valid but the National Labor Relations Commission
(NLRC) reversed the Labor Arbiter found the dismissal
illegal and damages and attorneys fees because of the
manner the dismissal was effected. The Court of Appeals
(CA) found no grave abuse of discretion and accordingly
denied the Rule 65 petition that the petitioner Abbott
brought.
D. The Current Court Rulings
The Ponencia. In the present Rule 45 petition for
review on certiorari before this Court, the ponencia
undertook a weighing of the evidence in light of her
own view of how
720

the evidence should be interpreted, and came out with

her own ruling for the grant of the petition.
This Dissent. I vote to dismiss the petition before us as
I agree with the decision of the CA that the NLRC did not
commit any grave abuse of discretion in concluding
that respondent had been illegally dismissed from
employment.
Discussion of the Issues
I. The Procedural Issue
A. The Preliminary Issue: Manner of Review
A labor case finds its way into the judicial system from
the NLRC whose decision is final and executory. Finality
simply means that the NLRC ruling is no longer
appealable the legal intent is to confine adjudication of
labor cases to labor tribunals with the expertise in these
cases and thereby bring the resolution of the case to a close
at the soonest possible time.
When an administrative ruling (or any ruling for that
matter) is already final and unappealable, the only
recourse open under the Rules of Court is through a
limited review on jurisdictional grounds under Rule
65. This has been the mode of review followed since the
Labor Code took effect in November 1974 labor cases were
directly brought to this Court but only on jurisdictional
grounds under Rule 65.1
_______________
1 The following explanation was made in my Rejoinder to Reply (On
the manner of reviewing a Court of Appeals Labor Ruling) that was
submitted to the Court En Banc in the course of the exchanges on this
aspect of the case. The explanation distinguished between appealable
cases and those that, while not appealable, can still be reviewed through a
Rule 65 petition for certiorari.
For a full understanding of these distinctions, it must be kept in mind
that several levels of review may exist for rulings emanating from the
lowest levels of adjudication before they reach the Supreme
721
VOL. 701, JULY 23, 2013 721

In 1998, the Court in lieu of directly acting on labor

cases under Rule 65 of the Rules of Court opted to
change the
_______________
Court. The ruling of an inferior court or tribunal (for example, the
Regional Trial Court [RTC]) is first reviewed by an appellate court (the
CA) on questions of fact or mixed questions of fact and law the CA
decision may then in turn be reviewed by the Supreme Court under Rule
45.
Generally, two types of decisions or rulings may be brought to the
appellate courts for review and decision the appellate courts decisions are
in turn subject to review by the Supreme Court.
The first type relates to cases that come to the appellate court by way
of appeal (e.g., the ruling of the RTC in the exercise of its original
jurisdiction that is appealed to the CA on issues of facts and law under
Rule 41 of the Rules of Court). The second type involves the review by the
CA of decisions of inferior courts or tribunals whose rulings, by law, are
final and executory (e.g., the ruling of the National Labor Relations
Commission [NLRC] that under the Labor Code is final and executory).
This is the review of rulings that, by law, is not appealable and thus can
only be made on limited jurisdictional grounds.
A CA ruling under the first type can be challenged by the aggrieved
party before the Supreme Court through a petition for review on certiorari
under Rule 45 of the Rules of Court. Under Rule 45, the review is only on
questions of law unless a review of questions of fact is allowed under the
terms established by jurisprudence. This is the case in the example given
above an RTC ruling that is appealed to the CA on both factual and
legal grounds and which CA decision on appeal is now before the Supreme
Court for further review. This may be the model of a Supreme Court review
that the ponente might have had in mind in asserting that the Supreme
Court should be able to undertake a review of the full range of legal issues
before it.
In the second type as exemplified above, a ruling by the NLRC,
although final and executory, may be brought to the CA under Rule 65 of
the Rules of Court, i.e., on a petition for certiorari, limited to jurisdictional
grounds, usually for grave abuse of discretion amounting to lack or excess
of jurisdiction. The final and executory nature of the NLRC decision under
review can best be appreci
722

procedure of review through its ruling in St. Martin

Funeral Homes, Inc. vs. National Labor Relations
Commission,2 taking into account the judicial hierarchy of
courts and the growing number of labor cases elevated to
the Supreme Court under Rule 65. The Court resolved that
the proper recourse from the NLRCs final and executory
ruling is to assail the ruling before the CA under Rule 65.

Thus, the unappealable character of the NLRC ruling (as
declared by substantive law) did not change only the
process of review changed in terms of the court (from the
Supreme Court to the Court of Appeals) to which the labor
case can initially be brought.
From the CA ruling, a dissatisfied party has the option
to file an appeal with the Supreme Court through a
petition for review on certiorari under Rule 45 of the Rules
of Court. This mode of appeal limits the review to questions
of law.
B. Standard of Review of a Labor Case under Rule
45 of the Rules of Court
Montoya v. Transmed3the CourtMontoya
_______________
ated when it is considered that the decision can immediately be
implemented unless a temporary restraining order or injunction is issued
by the CA the Rule 65 mode of review is rendered necessary because the
decision or ruling under review, by law, is already final. Finality1 means
that the decision is no longer appealable1 and may be reviewed only when
the ruling is void because of jurisdictional defects.
2 356 Phil. 811 295 SCRA 494 (1998).
3 G.R. No. 183329, August 27, 2009, 597 SCRA 334.
723
VOL. 701, JULY 23, 2013 723

In a Rule 45 review, we consider the correctness of the

assailed CA decision, in contrast with the review for
jurisdictional error that we undertake under Rule 65.
Furthermore, Rule 45 limits us to the review of questions
of law raised against the assailed CA decision. In ruling for
legal correctness, we have to view the CA decision in the
same context that the petition for certiorari it ruled upon
was presented to it we have to examine the CA
decision from the prism of whether it correctly
determined the presence or absence of grave abuse of
discretion in the NLRC decision before it, not on the
basis of whether the NLRC decision on the merits of
the case was correct. In other words, we have to be
keenly aware that the CA undertook a Rule 65 review, not a
review on appeal, of the NLRC decision challenged before it.
This is the approach that should be basic in a Rule 45
review of a CA ruling in a labor case. In question form,

the question to ask is: Did the CA correctly determine
whether the NLRC committed grave abuse of
discretion in ruling on the case?4 [emphases and italics
supplied citations omitted]
Thus, under the Rule 65 review by the CA, Montoya

reiterates that the sole ground or issue allowed is
jurisdictional the presence or absence of grave abuse of
discretion on the part of the NLRC in ruling on the case. To
state the obvious, this kind of review would have made it
easier for the CA to handle the case in the absence of a
grave abuse of discretion, it can dismiss labor cases for lack
of grave abuse of discretion as we do in this Court.
From the CA, further recourse is through a Rule 45
review by this Court on questions of law in accordance
with prevailing rulings. The office of a petition for review
on certiorari is not to examine and settle factual
questions already ruled upon below. In this review, the
Court simply determines whether the legal correctness of
the CAs finding that the
_______________
4 Id., at pp. 342343.
724

NLRC ruling of illegal dismissal had basis in fact

and in law.
This manner of review is effectively a supervisory
review by the courts that bears two significant
characteristics: first, it respects the mandate of the law
that the decision below is final and is not for the courts to
review on appeal for its legal and factual merits and
second, review by the courts (particularly by the Supreme
Court) in the exercise of their supervisory certiorari
jurisdiction is mandated no less than by the Constitution
and is intended to ensure that the deciding entity stayed
within the due bounds of its authority or jurisdiction.5
Specifically, in reviewing a CA labor ruling under Rule
45 of the Rules of Court, the Courts review is limited to:
(1) Ascertaining the correctness of the CAs
decision in finding the presence or absence of a
grave abuse of discretion. This is done by examining, on
the basis of the parties presentations, whether the CA
correctly determined that at the NLRC level, all the

adduced pieces of evidence were considered no evidence
which should not have been considered was considered and
the evidence presented supports the NLRC findings and
(2) Deciding any other jurisdictional error that
attended the CAs interpretation or application of the law.
In this kind of limited review, the Court avoids
reviewing a labor case by reweighing the evidence or re
evaluating its sufficiency the task of weighing or
evaluation, as a rule, lies within the NLRCs jurisdiction as
an administrative appellate body.
If the NLRC ruling has basis in the evidence and the
applicable law and jurisprudence, then no grave abuse of
discretion exists and the CA should so declare and,
accordingly, dismiss the petition. If grave abuse of
discretion exists, then the CA
_______________
5 Rejoinder to Reply, supra, at Note 1.
725
VOL. 701, JULY 23, 2013 725

must grant the petition and nullify the NLRC ruling,

entering at the same time the ruling that is justified under
the evidence and the governing law, rules and
jurisprudence. In our Rule 45 review, this Court must deny
the petition if it finds that the CA correctly acted.
In the context of the present case, the CA found no
grave abuse of discretion committed by the NLRC
hence, the CA dismissed the Rule 65 petition before it.
In our own ruling on the Rule 45 petition before us,
we should evaluate the petition in this light, not in
the manner that the ponencia did in concluding for
the grant of the petition and ruling in favor of the
petitioners.
By so doing, the ponencia undertook a factual appellate
review that laid the whole case open for the detailed
examination of every piece of evidence adduced in the case
and for the evaluation of the correctness of the application
of the law to the evidence found. This is a review that a
Rule 45 petition does not allow.
II. The Substantive Issues
A. The Respondents Status of Employment
II.A.1. Standards to determine probationary

employment
While the respondent might have been hired as a
probationary employee, the petitioners evidence did not
establish the employers compliance with the
probationary employment requirements under Article
281 of the Labor Code (as amended) and Section 6(d)
of the Implementing Rules of Book VI, Rule I of the
Labor Code (as amended). Thus, the respondent should
be considered a regular employee and the case should be
reviewed on this basis.
726


Article 281 of the Labor Code, as amended, provides:
ART. 281. Probationary employment.Probationary

employment shall not exceed six (6) months from the date
the employee started working, unless it is covered by an
apprenticeship agreement stipulating a longer period. The
services of an employee who has been engaged on a
probationary basis may be terminated for a just cause or
when he fails to qualify as a regular employee in accordance
with reasonable standards made known by the
employer to the employee at the time of his
engagement. An employee who is allowed to work after a
probationary period shall be considered a regular employee.
[italics supplied emphasis ours]
Further, Section 6(d) of the Implementing Rules of Book

VI, Rule I of the Labor Code, as amended, states:
Sec. 6. Probationary employment.There is

probationary employment where the employee, upon his
engagement, is made to undergo a trial period during which
the employer determines his fitness to qualify for regular
employment, based on reasonable standards made
known to him at the time of engagement. [emphasis
supplied]
Probationary employment shall be governed by the
following rules:
xxxx
(d) In all cases of probationary employment, the
employer shall make known to the employee the
standards under which he will qualify as a regular
employee at the time of his engagement. Where no

standards are made known to the employee at that
time, he shall be deemed a regular employee. [emphases
ours italics supplied]
To sum up these provisions, a valid probationary

employment requires the concurrence of two requirements.
First, the
727
VOL. 701, JULY 23, 2013 727

employer shall make known the reasonable standard

(performance standard) whose compliance will render the
employee qualified to be a regular employee. Second, the
employer shall inform the employee of the applicable
performance standard at the time of his/her
engagement. Failing in one or both, the employee, even if
initially hired as a probationary employee, should be
viewed and considered a regular employee.
The ponencia apparently fully agrees with the above
statement of the applicable law as it substantially recites
the same requirements, including the consequence that
upon failure to comply with these same requirements, the
employee is deemed as a regular and not a probationary
employee.6 It continues, however, with a twist that
effectively negates what it has stated and admitted about
the need to communicate the regularization standards to
the employee, thus:
Keeping with these rules, an employees is deemed to

have made known the standards that would qualify a
probationary employee to be a regular employee when it has
exerted reasonable efforts to apprise the employee of what
he is expected to do to accomplish during the trial of
probation. This goes without saying that the employee is
sufficiently made aware of his probationary status as well
as the length of time of the probation.
The exception to the foregoing is when the job is self
descriptive in nature, for instance, in the case of maids,
cooks, drivers, or messengers. Also in Aberdeen Court, Inc.
v. Agustin, it has been held that the rule on notifying a
probationary employee of the standards of regularization
should not be used to exculpate an employee in a manner
contrary to basic knowledge and common sense in regard to
which there is no need to spell out a policy or standard to be
met. In the same light, an employees failure to perform the

duties and responsibilities which have been clearly made
known to him consti
6 Decision, at page 12.
728

tutes a justifiable basis for a probationary employees

nonregularization. [footnotes from the original, omitted]
Based on these premises, the ponencia then deftly

argues that because the duties and responsibilities of the
position have been explained to the respondent, an
experienced human resource specialist, she should have
known what was expected for her to attain regular status.
The ponencias reasoning, however, is badly flawed.
1st. The law and the rules require that there
performance standards communicated at the time of
engagement to the probationary employee. The
performance standards to be met are the employers
specific expectations of how the probationary employee
should perform.
The ponencia impliedly admits that no performance
standards were expressly given but argues that because
the respondent had been informed of her duties and
responsibilities (a fact that was and is not disputed), she
should be deemed to know what was expected of her for
purposes of regularization.
This is a major flaw that the ponencia satisfies only via
an assumption. The ponencia apparently forgets that
knowledge of duties and responsibilities is different from
the measure of how these duties and responsibilities should
be delivered. They are separate elements and the latter
element is missing in the present case.
2nd. The ponencia glosses over the communication
aspect. Not only must there be express performance
standards (except in specific instances defined in the
implementing rules, discussed below) there must be
effective communication. If no standards were provided,
what would be communicated?
3rd. The ponencia badly contradicts itself in claiming
that actual communication of specific standards might not
be necessary when the job is selfdescriptive in nature, for
instance, in the case of maids, cooks, drivers, or

messengers. The re
729
VOL. 701, JULY 23, 2013 729

spondent, in the first place, was never a maid, cook, driver

or a messenger and cannot be placed under this
classification she was hired and employed as a human
resources manager, in short, a managerial employee. Plain
and common sense reasoning by one who ever had been in
an employment situation dictates that the job of a
managerial employee cannot be selfexplanatory, in the
way the ponencia implied the complexity of a managerial
job must necessarily require that the level of performance
to be delivered must be specified and cannot simply be
assumed based on the communication of the managers
duties and responsibilities.
4th. The ponencia also forgets that what these
performance standards or measures cannot simply be
assumed because they are critically important in this case,
or for that matter, in any case involving jobs whose duties
and responsibilities are not simple or selfdescriptive. If the
respondent had been evaluated or assessed in the manner
that the companys internal rules require, these standards
would have been the basis for her performance or lack of it.
Last but not the least, the respondents services were
terminated on the basis of the performance standards that,
by law, the employer set or prescribed at the time of the
employees engagement. If none had been prescribed in the
first place, under what basis could the employee then be
assessed for purposes of termination or regularization?
From these preliminary takeoff points in the
ponencias premises, it can already be discerned that
something is badly amiss and skewed in its
appreciation and review of the rulings of the NLRC
and the CA. It is an appreciation that goes beyond
what a determination of grave abuse of discretion
requires. It is an evaluation of the adduced evidence
based on externalities beyond the face value of the
presented evidence.
In this case, the ponencia simply disregarded the
plain import of the evidence or the lack of it, and
ventured into the realm of assumptions to justify its
de
730

sired conclusions. In the mathematical realm of

problem solving, it appears to have started from the
conclusion and solved the problem backwards so
that the conclusion would fit into its stretched
reading of the evidence.
II.A.2. The respondent should be deemed a
regular employee
In the context of this case, an initial determination of
how the respondents employment started and of her legal
status at that point is the best starting point in
determining the validity of her dismissal.
The respondent was indisputably initially hired as a
probationary employee. This is not a contested point. The
established facts and the applicable law, however, dictate
otherwise from the perspective of law as the petitioners
failed to show compliance with the two requirements
of Article 281 of the Labor Code (as amended) and of
Section 6(d) of the Implementing Rules of Book VI, Rule I
of the Labor Code (as amended).
This was what the NLRC found, leading the CA to
conclude that no grave abuse of discretion
intervened in the NLRCs ruling because its findings
were supported by the evidence on record and by
the correctlychosen applicable law. In stark contrast,
the ponencias reading, although based on the same legal
premises, was based on shaky assumptions, not on the
hard evidence that the tribunals below appreciated.
II.A.2(a). No specific employment standard on
record.
As the NLRC found (and as confirmed by the CA), no
term or provision exists in the respondents Employment
Contract7
_______________
7 Rollo, p. 174.
731
VOL. 701, JULY 23, 2013 731

relating to the performance standard that the

respondent was expected to observe. The Employment
Contract, duly presented as evidence, only proved the
terms and conditions of the respondents employment as
therein indicated, i.e., the position title, the assigned
department, the status of employment, and the period of
employment. Beyond these, the Employment Contract did
not say anything more. To be sure, nothing more can be
extracted from this piece of evidence except the facts stated
and the inferences by implication from the expressly
disclosed information. Significantly, none of these can be
characterized or inferred by implication as performance
standards.
The best evidence of what the ponencia did when it saw
matters otherwise, is its own statement: its basis is not
what the submitted evidence state but on what she was
largely impelled to recognize. To quote the ponencias
own words:
A punctilious examination of the records reveals that

Abbott had indeed complied with the above requirements.
This conclusion is largely impelled by the fact that Abbott
clearly conveyed to Alcaraz her duties and
responsibilities as Regulatory Affairs Manager prior
to, during the time of her engagement, and the incipient
states of her employment. On this score, the Court finds it
apt to detail not only of the incidents which point out to the
efforts made by Abbott but also those circumstances which
would show that Alcaraz was wellapprised of her
employers expectations that would, in turn determine her
regularization: [emphasis supplied]
The petitioners other pieces of evidence that the

ponencia cited and used to support its conclusion do not
and cannot, however, satisfy the requirement for
performance standards that must be communicated at the
time of engagement.
Specifically, these were the Offer Sheet dated
December 7, 2004, and the preemployment orientation
on the respondents duty to implement the petitioners
Code of Conduct, office policies and training program.
732

The Offer Sheet was designed to inform the respondent

of the compensation and benefits package offered to her by
the petitioner and can in no way be read as a statement of
the applicable probationary employment standard.8 It was
communicated even prior to engagement when the parties
were negotiating, not at the point of engagement as the law
requires.
The preemployment orientation on the respondents
duty to implement the petitioners Code of Conduct, office
policies and training program likewise cannot be
characterized as performance standards they simply
related to activities aimed at acquainting and training the
respondent on her duties and not for the purpose of
informing her of the performance standards applicable to
her. What stands out is that they do not pertain
specifically to the respondent and the required
performance standard applicable for her
qualification for regular employment they related to
the staff the respondent managed and supervised.
Additionally, these were all relayed prior to or after the
respondent was engaged by the petitioner.
An important distinction to remember at this point is
that the respondents knowledge of the duties that her
work entailed, and her knowledge of the employers
performance standard, are two distinct matters separately
requiring the presentation of independent proof.
The requirement of independent proof is found under
Article 281 of the Labor Code, as amended, and its
implementing rule that deem an employee to be regular if
he/she was not informed of the performance standard
for regularization. Independent proof is likewise
necessary as the law provides an additional ground for
terminating a probationary employment, i.e., when the
employee fails to qualify as a
_______________
8Id. at p. 77.
733
VOL. 701, JULY 23, 2013 733

regular employee in accordance with the reasonable

standards made known by the employer[.]9
The performance standard contemplated in law may be
proven by evidence of how the employees performance was
intended to be or was, in fact, measured by the employer.

The performance standard may be in the form of a clear set
of the employers expectations, or by a system of feedbacks
(e.g., comment cards) and document evaluation or
performance evaluation and appraisals conducted by the
employer.
These were the pieces of evidence that the NLRC,
as confirmed by the CA, did not see in the evidence or
in the petitioners presented case. The ponencia,
unfortunately, glossed over these gaps and omissions in the
petitioners case and chose to believe, even without
evidentiary basis that
Considering the totality of the abovestated

circumstances, it cannot, therefore, be doubted that
Alcaraz was wellaware that her regularization would
depend on her ability and capacity to fulfill the
requirements of her position as Regulatory Affairs Manager
and that her failure to perform such would give Abbott a
valid cause to terminate her probationary employment.
[emphasis supplied]
From this strained and stretched reading that magically

saw the required prescribed performance standards that
by the factual findings of the NLRC and the CA never
existed, the ponencia went on to conclude:
Verily, basic knowledge and common sense dictate that

the adequate performance of ones duties is, by and of itself,
an inherent and implied standard for a probationary
employee to be regularized such is a regularization
standard which need not be literally spelled out or mapped
into technical indicators in every case. In this
_______________
9 See Article 281 of the Labor Code, as amended.
734

regard, it must be observed that the assessment of adequate

duty performance is in the nature of a management
prerogative which when reasonably exercised as Abbott
did in this case should be respected. This is especially
true of a managerial employee like Alcaraz who was tasked
with the vital responsibility of handling personnel and
important matters of her department.
This conclusion, of course, simply extends the magic by

using basic knowledge and common sense to dictate the
existence of inherent and implied standards of a
probationary employee, and even offers a view of
management prerogative that is unusual in the given
facts of this case. This approach eloquently exemplifies
what I mentioned above as the solving backwards
approach that the ponencia used.
II.A.2(b). No specific performance standard
communicated to the respondent.
Complementing the requirement for the existence of
performance standards is the required communication of
the performance standard to the respondent. Again,
nothing in the records shows that the petitioner ever
communicated any performance standard to the
respondent.
The ponencia, in building up a case contrary to what the
NLRC and the CA found, cites the evidence the petitioners
point to the respondents receipt of copies of the
petitioners Code of Conduct, Probationary Performance
Standards and Evaluation, and Performance Excellence
Orientation Modules. The NLRC and the CA, looking at
the same pieces of evidence, saw these in a different light
as they did not only examine the documents
themselves but went to the extent of examining and
appreciating the circumstances surrounding the
respondents receipt of these documents.
The evidence on record suggests, as the respondent
directly testified to, that the cited documents were not
given to her for the purpose of complying with the
petitioners obligation to
736

inform her of the performance standards applicable to her.

The documents were, in fact, given by the petitioner to
assist her in monitoring the employees assigned to
her department, i.e., as the documents she must rely
on in conducting the performance evaluations of the
staff assigned to her department. In short, the
respondent received the documents because they were
necessary in the discharge of her functions.
From the point of law, compliance with the first
requirement is not also satisfied by the petitioners
assertion that the respondent knew that only one
performance standard applied to all employees. Notably,

the law requires proof that the employer specifically made
known to her the performance standards applicable to her
to enable her to qualify for regular employment. The
required communication must be an effective one if
the law were to be given meaningful substance, not a
mere perfunctory transmission of information.
Faced with these opposing claims, the CA apparently
weighed matters in the respondents (and effectively in the
NLRCs) favor. In this situation of possible equipoise, the
CA did not rule incorrectly from the point of law when it
acted as it did.
Two factors tilt the balance in favor of the legal
correctness of the CAs ruling. The first is that the
respondents position (found by the NLRC to be
meritorious) was not without any basis in fact and in
law. The second is from the latter perspective Article 4 of
the Labor Code and established jurisprudence hold that
any doubt in a labor situation must be resolved in the
employees favor.
Thus, again, the ponencias case and its
conclusion must fail.
II.A.2(c). Performance standards and the
internal procedures for their
evaluation were not applied to the
respondent.
736


I can only agree with one aspect of the ponencia its
admission that Abbotts internal procedures were not
applied to the respondent. I cannot dispute and I fully
agree with the following passages of the ponencia:
Records show that Abbotts PPSE procedure mandates,

inter alia, that the job performance of a probationary
employee should be formally reviewed and discussed with
the employee at least twice: first on the third month and
second on the fifth month from the date of employment.
Abbott is also required to come up with a Performance
Improvement Plan during the third month review to bridge
the gap between the employees performance and the
standards set, if any. In addition, a signed copy of the PPSE
form should be submitted to Abbotts HRD as the same
would serve as basis for recommending the confirmation or

termination of the probationary employment.
In this case, as it is apparent that Abbott failed to follow
the abovestated procedure in evaluating Alcaraz. For one,
there lies a hiatus of evidence that a signed copy of Alcaraz
PPSE form was submitted to the HRD. It was not even
shown that a PPSE form was completed to formally assess
her performance. Neither was the performance evaluation
discussed with her during the third and fifth months of her
employment. Nor did Abbott come up with the necessary
Performance Improvement Plan to properly gauge Alcaraz
performance with the set company standards.
While it is Abbotts management prerogative to
promulgate its own company rules and even subsequently
amend them, this right equally demands that when it does
create its own policies and thereafter notify its employees of
the same, it accords upon itself the obligation to faithfully
implement them. Indeed, a contrary interpretation would
entail a disharmonious relationship in the work place for
the laborer should never be mired by the uncertainty of
flimsy rules in which the latters
737
VOL. 701, JULY 23, 2013 737

labor rights and duties would, to some extent, depend.10

[footnotes in the original omitted]
Internal processes, however, cannot be dissociated from

the substance that the processes seek to achieve. This is
the essence of due process. There is the requirement for
the observance of proper procedures, hand in hand with the
substance of what the law seeks to level the playing field
between the allpowerful employer and the vulnerable
employee who lies at the mercy of the employer if he or she
can be dismissed on the basis of the latters whim. This
attempt at leveling is the reason for the requirements for
duly disclosed performance standards and their
communication to the probationary employee at the very
beginning of the relationship. Reason, experience and
common sense dictate that the substance of the law carry
more weight than the process component so that any
violation of the substantive portion is a transgression that
mere obeisance to the process or the recognition of the
failure of process, cannot cure. From this perspective, the
laudable quotation above loses its luster.
Lusterless or otherwise, the ponencias admission of

Abbotts procedural inadequacies is not without
significance in terms of the present case as a whole.
Notably, the above quotation expressly and impliedly
admits that no effort at all was ever made for the conduct
of an assessment or evaluation of the respondents
performance in fact, no performance evaluation forms
appear to have been submitted by the company. The dearth
of evidence on this point (described by the ponencia as a
hiatus of evidence) is completely consistent with what the
ponencia explicitly and impliedly admits from the very
beginning: there was no evidence of any performance
standard furnished the respondent so that the
ponencia could only deduce the existence of
performance standards from its assumptions and
stretched rationalizations much less was there any
communica
_______________
10 Decision, at pp. 1617.
738

tion of performance standards qua performance

standards, as this is a matter that was also assumed.
I draw attention, too, to another unusual feature of this
case indicating, not only the omissions that the ponencia
already cited, but the implication as well that the
respondent had been singled out for special treatment by
the petitioner officers. At the very least, this incident
indicates that the petitioner did not apply the same
standards and processes to the respondents work. The
petitioners prescribed procedure was narrated in an earlier
version of the ponencia in this wise:
On April 20, 2005, Alcaraz had a meeting with petitioner

Cecille Terrible (Terrible), Abbotts former HR Director, to
discuss certain issues regarding staff performance
standards. In the course xxx thereof, Alcaraz accidentally
saw a printed copy of an email sent by Walsh to some staff
members which essentially contained queries regarding the
formers job performance. Alcaraz asked if Walshs
action was the normal process of evaluation. Terrible
said that it was not.11 (emphasis ours)
This allegation by the respondent in this regard in her

pleadings was impliedly admitted by the petitioner when it
failed to offer any refutation. Interestingly, the above
allegation was included in the narration of facts of
the Labor Arbiter, the NLRC, the CA and an earlier
version of the ponencia, although they arrived at two (2)
different conclusions.
The respondents unrefuted allegation was not
considered at all in the conclusions of the Labor Arbiter
and of the ponencia.12 On the other hand, the NLRC and
the CA concluded that a different performance standard
and evaluation process
_______________
11 Pages 45 of the ponencia.
12 Ibid. Rollo, pp. 260 and 271.
739
VOL. 701, JULY 23, 2013 739

was applied to the respondent in light of the circumstances

of the case, gleaned from the evidence submitted.13
In my view, the NLRC and the CA were not without
basis in making their conclusion as the incident, taken
together with the facts supported by the available evidence,
is vital in appreciating the nature of the respondents
employment.
Since the respondent, as the incident suggests, was
bound by a different set of standards and procedures, and
since no evidence of record existed showing what these
standards were or that the required procedures were
observed, the petitioners theory that the respondent was
informed of, and was evaluated pursuant to, the
performance standards applicable to her position, is
effectively negated. This leads to the conclusion that
the respondent, from the beginning, had been a
regular employee as a result of the failure of Abbotts
HR processes. A much simpler view, related this time to
the manner of her termination, is that the respondent was
simply differently treated.
B. Just Cause for Dismissal Must Exist
To justify the dismissal of an employee, the employer
carries the burden of proving that the dismissal was for a
just cause and with the observance of due process prior to
dismissal.14 The employer has to discharge this burden by
15
clear, accurate, consistent and convincing evidence
http://central.com.ph/sfsreader/session/0000015bf05c5ab1f5af9b23003600fb002c009e/t/?o=False in 54/67
clear, accurate, consistent and convincing evidence15 in

case of doubt, the presumption in the employees favor
under Article 4 of the Labor Code should apply.
II.B.1. The petitioner had no valid cause to
dismiss the respondents employment
_______________
13 Rollo, pp. 10441045.
14 Aliling v. Feliciano, G.R. No. 185829, April 25, 2012, 671 SCRA 186,
205.
15 Ibid.
740


The respondent was dismissed as she failed to qualify
as regular employee in accordance with the prescribed
standards set by the Company.16 Even granting for the
sake of argument that the petitioner had apprised the
respondent of an applicable performance standard, the
evidence failed to show that the respondent did not meet
this standard in a manner and to the extent equivalent to
the just cause that the law requires.
II.B.1(a). Just cause requirement for
employees, whether
probationary or regular.
An important legal point that should not be lost in
considering this case is that a probationary employee
does not have lesser rights than a regular employee
under the Labor Code in terms of the just cause for
the termination of an employment. While the strict
application of Article 282 of the Labor Code may be relaxed
because the employee is still under probation (so that
analogous probationary status rules may apply), the same
essential just cause for dismissal must be present and must
be proven. In other words, probationary employment does
not mean that the employee is under an employment at
will situation as that phrase is understood in American
jurisprudence. To reiterate, the fact that the respondent
was still in her probationary period of employment did not
lessen the burden of proof that the law imposed on the
petitioners to prove the just cause for her dismissal.17
Probationary employees are protected by the security of
tenure provision of the Constitution and they cannot be

removed from their position except only for cause.18
_______________
16 Rollo, p. 78.
17 Aberdeen Court, Inc. v. Agustin, Jr., 495 Phil. 706, 712 456 SCRA
32, 38 (2005).
18 Ibid.
741
VOL. 701, JULY 23, 2013 741

II.B.1(b). The evidentiary status of the

just cause for dismissal
In the present case, the evidence did not show the just
cause that Article 282 of the Labor Code requires. No
evidence on record showed the commission by the
respondent of any of the following acts or omissions:
(a) Serious misconduct or willful disobedience by the
employee of the lawful orders of his employer or
representative in connection with his work
(b) Gross and habitual neglect by the employee of his
duties
(c) Fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized
representative
(d) Commission of a crime or offense by the employee
against the person of his employer or any immediate
member of his family or his duly authorized
representatives and
(e) Other causes analogous to the foregoing.
On the contrary, the records disclose that the
respondent performed her duties under the guidance of the
petitioners management and worked in line with the tasks
assigned to her.19 The petitioners allegation of the
respondents poor performance could not have been
substantiated considering the lack of any clear
performance standard in evaluating the respondents work.
II.B.2. The petitioner violated its own
procedural requirements in the
performance evaluation
A first instance when the discussion related to process
was with respect to the communication of performance
_______________
19 See page 4 of the ponencia.
742

standards. This topic also relates to process, but this

time on the matter of the procedure to be taken in
performance evaluation: the petitioner failed to observe
its own procedural requirements in evaluating the
respondents probationary employment.
The petitioners prescribed procedure gives probationary
employees two (2) opportunities to meet and qualify for
regularization. As mentioned before, the reviews were
aimed at informing the employees of their work
performance based on the petitioners standard and on how
they can improve it to qualify for regularization. For
reasons not disclosed in the records, the prescribed
procedure was not followed by the petitioner in the
respondents case. She was immediately terminated from
employment without having been evaluated and without
undergoing the evaluation process under the petitioners
prescribed procedure.
While the petitioners failure to observe its own
procedures is not disputed in the ponencia, the implication
of Abbotts failure cannot simply be glossed over. Abbotts
noncompliance should be viewed from the point of
fairness or lack of it, that attended the respondents
dismissal. This circumstance should be considered together
with the other circumstances of the case, if only because
the petitioners basic unfairness rendered doubtful the real
cause in the termination of her employment.
In other words, any deviation from the prescribed
procedures must be sufficiently explained to remove doubts
on the genuineness of the cause of dismissal. In this case,
not only did the petitioner fail to observe its own prescribed
procedure more importantly, it also failed to provide an
explanation on why the prescribed procedure was not
followed in the respondents case.
Significantly, the NLRC appreciated all these in
this case and this appreciation was duly noted and
evaluated by the CA. As there was in fact basis in
fact and in law in the NLRCs findings on this aspect
of the case,
743
VOL. 701, JULY 23, 2013 743

again the CA correctly found no grave abuse of

discretion in the NLRCs actions.
II.B.3. Violation of the Labor Codes
procedural requirements
Additionally, the petitioner failed to comply with the
procedural due process of the Labor Code when it
terminated the respondents employment. The twowritten
notice requirement under Section 2, Rule XXIII, Book V
of the Omnibus Rules Implementing the Labor Code, as
amended, was never observed. To quote this provision:
Section 2. Standards of due process requirements of

notice.In all cases of termination of employment, the
following standards of due process shall be substantially
observed:
I. For termination of employment based on just causes as
defined in Article 282 of the Code:
(a) A written notice served on the employee
specifying the ground or grounds for termination,
and giving to said employee reasonable opportunity
within which to explain his side
(b) A hearing or conference during which the employee
concerned, with the assistance of counsel if the employee so
desires, is given opportunity to respond to the charge,
present his evidence or rebut the evidence presented
against him and
(c) A written notice of termination served on the
employee indicating that upon due consideration of
all the circumstance[s], grounds have been
established to justify his termination.
In case of termination, the foregoing notices shall be served
on the employees last known address. [emphasis supplied]
744

The first notice is complied with when the employee is

properly apprised of the charges brought against him/her
so that he/she can properly prepare for his/her defense.20
The second notice is complied with when the employee is
informed of the employers intention to terminate the
employment.21 A formal trialtype hearing, although
preferred, is not absolutely necessary to satisfy the

employees right to be heard. In Perez v. Philippine
Telegraph and Telephone Company,22 the Court laid down
the following guiding principles in connection with the
hearing requirement in dismissal cases:
a) ample opportunity to be heard means any
meaningful opportunity (verbal or written) given to
the employee to answer the charges against him and
submit evidence in support of his defense, whether in
a hearing, conference or some other fair, just and
reasonable way.
b) a formal hearing or conference becomes mandatory
only when requested by the employee in writing or
substantial evidentiary disputes exist or a company
rule or practice requires it, or when similar
circumstances justify it.
c) the ample opportunity to be heard standard in the
Labor Code prevails over the hearing or conference
requirement in the implementing rules and
regulations.
From the records, the respondent received only one
notice and was not given ample opportunity to be
heard before her employment was terminated. The
respondent was not served a first written notice indicating:
(1) the grounds for terminating her employment and (2) a
directive giving her the opportunity to submit a written
explanation within a
_______________
20 Dolores T. Esguerra v. Valle Verde Country Club, Inc., et al., G.R.
No. 173012, June 13, 2012, 672 SCRA 177.
21 Ibid.
22 G.R. No. 152048, April 7, 2009, 584 SCRA 110, 127.
745
VOL. 701, JULY 23, 2013 745

reasonable period. Neither was the respondent given the

ample opportunity to be heard as required by law. There
was only compliance with the second notice requirement
through the petitioners letter dated May 19, 2005 which
was already a written notice of termination of
employment.23
In defense of Abbotts failure to observe the twonotice
requirement, the ponencia argues that a different
procedure applies when terminating a probationary

employee the usual twonotice requirement does not
govern, citing for this purpose Section 2, Rule I, Book VI of
the Implementing Rules of the Labor Code.
The ponencia, however, forgets that the single notice
rule applies only if the employee is validly on probationary
basis it does not apply where the employee is deemed
a regular employee for the companys failure to
provide and to communicate a prescribed
performance standard applicable to the probationary
employee. The ponencia itself admits that in such a case,
the employee would then be a regular employee. Since the
petitioner utterly failed to support by evidence its
compliance with the legal requirements on performance
standards, the twonotice requirement for regular
employees must perforce fully apply.
C. The Consequences of the Respondents
Illegal Dismissal
The above analysis shows that the respondent had been
illegally dismissed from her employment. The petitioner
failed to show that her dismissal was for a valid cause. The
petitioner also failed to respect the respondents procedural
due process rights under the law.
As a consequence, the NLRC and the CA, thereafter,
correctly ordered the respondents reinstatement and the
payment of the monetary awards of backwages, moral
damages,
_______________
23 Rollo, p. 78.
746

exemplary damages and attorneys fees. The CA and the

NLRC also correctly held that the individual petitioners
(i.e., the corporate officers of the petitioner) should be
solidarily liable with the petitioner for the respondents
monetary awards.
II.C.1. The recoverable reliefs
Article 279 of the Labor Code, as amended, provides the
following awards to an illegally dismissed employee:
Art. 279. Security of tenure.In cases of regular

employment, the employer shall not terminate the services
of an employee except for a just cause or when authorized
by this Title. An employee who is unjustly dismissed from

work shall be entitled to reinstatement without loss of
seniority rights and other privileges and to his full
backwages, inclusive of allowances, and to his other benefits
or their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his
actual reinstatement.
By jurisprudence derived from [the above] provision,

separation pay may be awarded to an illegally dismissed
employee in lieu of reinstatement.24 Under Section 4(b),
Rule I of the Rules Implementing Book VI of the Labor
Code, separation pay is awarded, in lieu of reinstatement,
to an illegally dismissed employee when reinstatement is
no longer possible, i.e., when the dismissed employees
position is no longer available, or the continued
relationship between the employer and the employee would
no longer be viable due to the strained relations between
them, or when the dismissed employee opts not to be
reinstated, or when the payment of sepa
_______________
24 Session Delights Ice Cream and Fast Foods v. Court of Appeals
(Sixth Division), G.R. No. 172149, February 8, 2010, 612 SCRA 10, 25,
citing Mt. Carmel College v. Resuena, G.R. No. 173076, October 10, 2007,
535 SCRA 518, 541.
747
VOL. 701, JULY 23, 2013 747

ration benefits would be for the best interest of the parties

involved.
Thus, an illegally dismissed employee is entitled to
two reliefs: backwages and reinstatement. The two
reliefs provided are separate and distinct. In instances
where reinstatement is no longer feasible because of
strained relations between the employee and the employer,
separation pay is granted. In effect, an illegally dismissed
employee is entitled to either reinstatement, if viable, or
separation pay if reinstatement is no longer viable, and
backwages.25
II.C.2. Other awards as a consequence of the
damages suffered
In addition to these basic awards, an illegally dismissed

employee may also be awarded moral and exemplary
damages and attorneys fees. Jurisprudence holds that
moral and exemplary damages are awarded when the
illegal dismissal is attended by bad faith.26 The Court has
also ruled that corporate officers are solidarily liable with
the employer company for the employees termination of
employment done with malice or bad faith.27
A review of the facts of the case shows ample evidence
supporting the petitioners bad faith, as shown by the
manner in which the respondents employment was
terminated. The NLRC, in its decision, exhaustively
discussed the petitioners bad faith, as demonstrated by the
actions of the individual petitioners:
_______________
25 Macasero v. Southern Industrial Gases Philippines, G.R. No. 178524,
January 30, 2009, 577 SCRA 500, 507.
26 Nazareno v. City of Dumaguete, G.R. No. 177795, June 19, 2009, 590
SCRA 110, 141142. See also Civil Code, Articles 2208, 2217, 2219 and
2232.
27 MAM Realty Development Corporation v. NLRC, G.R. No. 114787,
June 2, 1995, 244 SCRA 797, 803.
748

The records show that complainantappellants dismissal

was effected by individual respondentsappellees in a
capricious and highhanded manner, antisocial and
oppressive, fraudulent and in bad faith, and contrary to
morals, good customs and public policy. Bad faith and fraud
are shown in the acts committed by respondentsappellees
before, during and after complainantappellants dismissal
in addition to the manner by which she was dismissed.
First, complainantappellant was pressured to resign: (1)
she was threatened with termination, which will surely
damage her reputation in the pharmaceutical industry (2)
she was asked to evacuate her Commission and ordered not
to enter the Companys premises even if she was still an
Abbott employee and (3) individual respondents Ms.
Terrible and Ms. Walsh made a public announcement to the
staff that complainantappellant already resigned even if in
reality she did not. All of which caused complainant
appellant much humiliation, serious anxiety and

besmirched reputation.28
The CA also described in detail the abrupt and

oppressive manner in which the respondents employment
was dismissed by the petitioner:
On May 23, 2005, the private respondent still reported for

work since petitioner Abbott had not yet handed the
termination notice to her. However, the security guard did
not allow her to enter the Hospira ALSU office pursuant to
Ms. Walsh[s] instruction. She requested Ms. Walsh that
she be allowed to enter the company premises to retrieve
her last remaining things in her office which are mostly her
personal belongings. She was allowed to enter. However,
she was surprised to see her drawers already unlocked and,
when she opened the same, she discovered that her small
brown envelope xxx, white pouch containing the duplicate
keys, and the staffs final evaluation sheets were missing.
The private respondent informed Ms. Bernardo about the
incident. The latter re
_______________
28 Rollo, pp. 375376.
749
VOL. 701, JULY 23, 2013 749

sponded by saying she was no longer an employee of the

company since May 19, 2005.
The private respondent reported the matter to the Pasig
Police Station and asked for help regarding the theft of her
properties. The Pasig Police incident report stated as
follows:
xxxx
When confronted by the suspect, in the presence of
one SOCO officer and staff, named Christian Perez.
Kelly Walsh allegedly admitted that she was the one
who opened the drawer and got the green folders
containing the staff evaluations. The Reportee, was
told by Kelly Walsh that her Rolex wristwatch will be
returned to her provided that she will immediately
vacate her office.
On the same date, the private respondents termination
letter dated May 19, 2005 was handed to her by Ms. Walsh,
Mr. Almazar and Ms. Bernardo. On May 27, 2005, the
private respondent received another copy of the said

termination notice via registered mail.29
These explanations for the actions taken show

that the NLRCs recognition of the bad faith was not
without basis and was in fact supplemented by the
CA in the appellate courts own confirmatory
explanation.
D. Application of the Rule 45 Standard of Review
Under the evidentiary situation that prevailed in this
case as described above in some detail, an expression of
wonder cannot be helped, particularly on how the ponencia
could conclude that the CA committed a reversible error
when it found no grave abuse of discretion in the NLRCs
actions on the case. In contrast with the findings of the
Labor Arbiter, the findings and conclusions of the NLRC,
as affirmed on a Rule 65 review by the CA, were based on
the law and juris
_______________
29 Id., at pp. 10461047.
750

prudence as properly applied to the established set of facts

and evidence.
First, while the respondent, from the petitioners
standpoint, was hired as a probationary employee, she was
deemed a regular employee pursuant to the clear
provisions of Article 281 of the Labor Code, as amended
and Section 6(d) of the Implementing Rules of Book VI,
Rule I of the Labor Code, as amended. The evidence
adduced failed to show that the petitioner ever apprised
the respondent at the time of her engagement of the
standards she must meet to qualify for regular
employment.
Second, the respondents termination from employment
had no basis in fact and in law. Since the records failed to
support the petitioners allegation that the respondents
alleged poor performance and tardiness were proven by
evidence and, in fact, fell within the enumeration in Article
281 and Article 282 of the Labor Code, reason dictates that
the present petition be denied.
At the risk of repetition, the adduced evidence, in the
first place, did not prove that the respondents work failed
to comply with the petitioners performance standard as no

proof of the performance standard applied to the
respondents work was actually presented. The
respondents employment was also terminated without
undergoing any performance evaluation.
The evidence adduced did not also prove any act of
omission under Article 282 of the Labor Code committed by
the respondent. No evidence was presented on the
respondents actual work so as to determine whether her
acts/omissions constituted a just cause for termination,
such as serious misconduct or gross or habitual neglect of
duty or any other analogous cause to the just causes
mentioned in the law.
As the records show, neither was there compliance with
the respondents own internal procedures nor with the
laws procedural due process. The respondent was not
served the two
751
VOL. 701, JULY 23, 2013 751

notice required by law before her employment was

terminated by the petitioner.
Third, the NLRCs monetary awards, as affirmed by the
CA, were appropriate consequences of the respondents
illegal dismissal from employment. The payment of the
respondents backwages and the order of reinstatement
were consistent with the provisions of Article 279 of the
Labor Code. Jurisprudence also provides the award of
moral and exemplary damages, as well as attorneys fees,
when bad faith is proven in the termination of employment.
In this case, the bad faith exhibited by the individual
petitioners was clearly established in the records. The
individual petitioners bad faith was demonstrated by the
evidence of how they unfairly effected the termination of
the respondents employment.
The narration of facts of the Labor Arbiter, the NLRC
and the CA shows, among others, that: (1) the individual
petitioners did not follow the petitioners prescribed
procedure performance evaluation as, in fact, the
respondents work was not evaluated (2) the individual
petitioners, through their concerted actions, ganged up on
the respondent in forcing her to resign from employment
(3) the individual petitioners pressured the respondent to
resign by announcing her resignation to the office staff,
thereby subjecting her to unwarranted humiliation and (4)
they blackmailed the respondent by withholding her

personal possessions until she resigned from employment.
Bad faith can also be inferred from the lack of fairness
and underhandedness employed by the individual
petitioners on how they informed the respondent of the
termination of her employment. The records disclose that
the respondent was lured into a meeting on the pretext
that her work performance was to be evaluated she was
caught offguard when she was informed that her
employment had been terminated. Aside from the abrupt
notification, bad faith can also be deduced from the fact
that the termination was made immedi
752

ately effective the respondent was immediately banned

from the petitioners premises after she was informed that
her employment had been terminated.
To my mind, the NLRC correctly ruled that the
individual petitioners were solidarily liable, together with
the petitioner, to pay the monetary awards. The cited
circumstances constitute sufficient evidence of their bad
faith in terminating the respondents employment. Verily,
corporate officers are solidarily liable with the corporation
to pay monetary awards in illegal dismissal cases when
their bad faith is established in the termination of the
employment.
III. Conclusion
I close this Dissent with the note that the constitutional
protection of security of tenure is a right enjoyed by every
employee. Employment, regardless of the employment
status, may only be terminated for cause and within the
procedure prescribed by law and jurisprudence. A review of
the records shows that no reversible error was committed
by the CA in finding the NLRC free from any taint of grave
abuse of discretion in ruling on the respondents illegal
dismissal. This conclusion is what the Court should reflect
in its Decision if it is to discharge in good faith its duty to
adjudicate.
Petition granted, judgment and resolution reversed and

set aside.
Notes.A person whose right to remain in peaceful

possession of his property is violated by another persons
fraudulent registration of such property in her name is

entitled to nominal damages under Article 2221 of the Civil
Code. (Reyes vs. Montemayor, 598 SCRA 61 [2009])
The filing of a certificate of nonforum shopping is
mandatory so much so that noncompliance could only be
tolerated by special circumstances and compelling reasons
This Court has held that when there are several
petitioners, all of them
753
VOL. 701, JULY 23, 2013 753

must execute and sign the certification against forum

shopping otherwise, those who did not sign will be dropped
as parties to the case. (Pigcaulan vs. Security and Credit
Investigation, Inc., 663 SCRA 1 [2012])
o0o
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1 Abbott V Alcaraz

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1 Abbott V Alcaraz

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5/10/2017 SUPREMECOURTREPORTSANNOTATEDVOLUME701

G.R. No. 192571. July 23, 2013.*

ABBOTT LABORATORIES, PHILIPPINES, CECILLE A.

Remedial Law Civil Procedure Forum Shopping

VOL. 701, JULY 23, 2013 683

Abbott Laboratories, Philippines vs. Alcaraz

(2002), the Court explained that: x x x The distinction between

Same Same Same Forum shopping takes place when a

684 SUPREME COURT REPORTS ANNOTATED

Abbott Laboratories, Philippines vs. Alcaraz

probationary employment, aside from just or authorized causes of

standards made known by the employer to the employee at the

VOL. 701, JULY 23, 2013 685

Abbott Laboratories, Philippines vs. Alcaraz

employee when it has exerted reasonable efforts to apprise the

foregoing is when the job is selfdescriptive in nature, for

686 SUPREME COURT REPORTS ANNOTATED

Abbott Laboratories, Philippines vs. Alcaraz

of termination.A different procedure is applied when

shall be sufficient that a written notice is served the employee,

VOL. 701, JULY 23, 2013 687

Abbott Laboratories, Philippines vs. Alcaraz

employee for the violation of his statutory rights. Thus, in

failed to comply with the notice requirement, the sanction to be

688 SUPREME COURT REPORTS ANNOTATED

Abbott Laboratories, Philippines vs. Alcaraz

than her unfounded assertions on the matter, there is no evidence

VOL. 701, JULY 23, 2013 689

Abbott Laboratories, Philippines vs. Alcaraz

absence of grave abuse of discretion on the part of the National

whether the legal correctness of the Court of Appeals finding that

690 SUPREME COURT REPORTS ANNOTATED

Abbott Laboratories, Philippines vs. Alcaraz

by the employer to the employee at the time of his

VOL. 701, JULY 23, 2013 691

Abbott Laboratories, Philippines vs. Alcaraz

PETITION for review on certiorari of the decision and

692 SUPREME COURT REPORTS ANNOTATED

Abbott Laboratories, Philippines vs. Alcaraz

101045 which pronounced that the National Labor

VOL. 701, JULY 23, 2013 693

was to be employed on a probationary basis.8

was to be employed on a probationary basis.8 Later that

694 SUPREME COURT REPORTS ANNOTATED

During Alcarazs preemployment orientation,

VOL. 701, JULY 23, 2013 695

control and supervision of Walsh and (f) the processing of

On March 3, 2005, petitioner Maria Olivia T. Yabut

696 SUPREME COURT REPORTS ANNOTATED

This shall form the basis for recommending the

matter. Misa even assured her that Abbotts HRD would

VOL. 701, JULY 23, 2013 697

to terminate her services. She was also told that,

On May 23, 2005, Walsh, Almazar, and Bernardo

698 SUPREME COURT REPORTS ANNOTATED

inform her of the reasonable standards for her

On the contrary, petitioners maintained that Alcaraz

VOL. 701, JULY 23, 2013 699

evaluating all types of Abbott employees.31 As Alcaraz was

WHEREFORE, the Decision of the Labor Arbiter dated

1. Finding respondents Abbot [sic] and individual

700 SUPREME COURT REPORTS ANNOTATED

The NLRC reversed the findings of the LA and ruled