Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 157202             March 28, 2007

PHILIPPINE LONG DISTANCE and TELEPHONE COMPANY, INC., Petitioner,
vs.
AMPARO BALBASTRO and NATIONAL LABOR RELATIONS COMMISSION, Respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Review on Certiorari filed by Philippine Long Distance and Telephone Company, Inc. (petitioner) seeking to annul the Decision1 dated July 31, 2002 and the Resolution2 dated February 7, 2003 of the Court of Appeals (CA) in CA-G.R. SP No. 51060.

Amparo Balbastro (private respondent) was employed by petitioner in 1978 as its telephone operator until her questioned dismissal from employment on October 5, 1989. She was dismissed by petitioner for her absences without authorized leave due to unconfirmed sick leave on June 28 to July 14, 1989, which constituted her third offense3 punishable by dismissal under petitionerís rules and regulations.4

On October 28, 1991, private respondent filed a Complaint5 with the Labor Arbiter against petitioner and its President, Antonio Cojuangco, for illegal dismissal, non-payment of salary wage, premium pay for rest day, 13th month pay, and damages. In her position paper, she alleged that she was dismissed on the ground of unconfirmed sick leave despite her presentation of medical certificates from her attending physicians which were not considered by petitionerís medical doctors; and that she has four minor children and it was not her intention to habitually absent herself without reason considering that her loss of job which was based only on opinions of petitionerís doctors had caused her great deprivation and moral suffering. She prayed for reinstatement, backwages, and damages.

Petitioner filed its position paper with Motion to Dismiss6 alleging that private respondentís habitual and unjustified absences was a just and valid cause for her termination under its rules and regulations; and that her record of unauthorized absences for 1989 showed the following:

First unauthorized absences, from March 19 to 29, 1989. Private respondent absented herself from work for nine days excluding rest days on March 23 to 24, 1989 without notice to petitioner. She gave marital problem as the reason for her absence. She was penalized with 18 days suspension for violating petitionerís rules and regulations regarding absences.

Second unauthorized absences, from June 11 to 13, 1989. Private respondent called in sick from Tanauan, Batangas on June 5 that she was suffering from gastroenteritis. She absented herself from June 5 to 13, 1989. On June 14, 1989, she presented herself to petitionerís doctor, Dr. Melissa Musngi and submitted a medical certificate where it was stated that she was under treatment from June 5 to 8, 1989 of gastroenteritis. Dr. Musngi confirmed private respondentís sick leave from June 5 to 10, 1989 but did not confirm her absences from June 11 to 13, 1989 because her medical certificate covered only the period from June 5 to 8, 1989. Furthermore, petitioner reasons out that if she really had such illness, certain normal logical medical procedures should have been taken, such as stool examinations and hospitalization; and she bore no post-illness manifestations of gastroenteritis. Private respondentís unconfirmed leave of absence was considered by petitioner unauthorized due to her patent abuse of sick leave privileges and treated it as her second offense and was penalized with 15 days suspension.

Third unauthorized absences, from June 28 to July 14, 1989. On June 25, 1989, private respondent made a sick call that she had sore eyes and absented herself from June 25 to July 14, 1989. On July 3, 1989, she was outvisited at her given address in Makati but was not found home. On July 15, 1989, she reported for work and presented herself to the clinic for confirmation. She had her medical certificate issued by her attending physician showing that she had been under his professional treatment from June 25 to July 12, 1989 for systemic viral infection. Petitionerís doctor, Dr. Benito Dungo, confirmed her sick leave from June 25 to 27, 1989 but did not confirm as to the rest of the dates when she was absent from work. When asked to explain, private respondent said that she had a viral infection during the said period; and that she was in Tanauan, Batangas during the said dates so she was not found in Makati when outvisited. Petitionerís doctor did not confirm her leave of absence from June 28 to July 14, 1989 on the ground that such illness did not warrant a very long time of rest; certain laboratory examinations should have been conducted by her attending physician; and there was patent abuse of her sick leave privileges.

While private respondentís third leave of absence was being deliberated upon, she absented herself from August 6 to 12, 1989. She called in sick on August 6, 1989 informing her supervisor that she had a fever. The medical certificate issued by her attending physician showed that she was under treatment from August 7 to 10, 1989 for influenza. Petitionerís doctor, Dr. Eduardo Co, confirmed private respondentís leave of absence from August 6 to 8, 1989 but did not confirm the rest because her absences from August 9 to 12, 1989 were not covered by a medical certificate; her illness did not warrant prolonged absence; and it was medically impossible for her to contract the same illness which she contracted the previous month since it is a medical fact that there is no such thing as an immediately recurrent viral infection.

In view of her repeated absences without authorized leave for the third time, petitioner terminated private respondentís service effective October 5, 1989.

The Labor Arbiter conducted a hearing where private respondent testified on her behalf, while petitioner presented the three medical doctors who did not confirm portions of private respondentís leave of absence, and its Employee Relations and Service Department Manager.

On May 30, 1994, the Labor Arbiter issued its Decision,7 the dispositive portion of which reads:

WHEREFORE, all the foregoing premises being considered, judgment is hereby rendered ordering the respondent Philippine Long Distance [and] Telephone Co. to reinstate the complainant to her former position as telephone operator with all the rights, privileges and benefits appertaining thereto, including seniority, plus backwages equivalent to one (1) year salary in the sum of P78,000.00 (P6,500.00/mo. x 12 mos.).

SO ORDRED.8

The Labor Arbiter held that private respondentís first incident of absence from March 19 to 29, 1989 were unauthorized but not as to the other succeeding absences. It found that private respondent, on her first day of absence, called in sick and when she reported for work, she went to petitionerís clinic for check-up and submitted her medical certificates, thus she complied with the standard requirements on matters of sick leave; that petitionerís doctors did not confirm some portions of private respondentís leave of absence based merely on their medical opinions; that such justification was not warranted under Department Order No. ADM-79-02 wherein absences due to illness were considered unauthorized and without pay when the attending doctorís signature is forged, there is alteration as to the date and contents of the medical certificate, the certificate is false as to the facts alleged therein, the doctor issuing the medical certificate is not qualified to attend to the illness, there are falsities and misrepresentations, and when there is patent abuse of sick leave privileges; and that these circumstances were not proven in this case.

The Labor Arbiter gave more credence to the doctor who actually attended to private respondent rather than to the medical opinion of petitionerís doctors. It concluded that petitionerís doctors should have coordinated with private respondentís attending physicians to settle any doubts as to the medical certificates.

Petitioner filed its appeal with the National Labor Relations Commission (NLRC).9 On January 19, 1996, the NLRC issued a

Resolution10 affirming the decision of the Labor Arbiter.

The NLRC found that company practice allows leave of absence due to sickness if supported by a medical certificate issued by the attending physician; that a difference in opinion by the Medical Director from that of the attending physician should not prejudice private respondent since the Medical Director can consider absences unauthorized only in cases of forgery and patent abuse of sick leave privileges which were not proven in this case; that if the Medical Director entertained doubts as to the medical certificate, he should have asked the attending physician to submit himself for cross-examination and then present an independent physician for an expert opinion on the matter.

Petitionerís Motion for Reconsideration was denied in a Resolution11 dated March 14, 1996.

Undaunted, petitioner filed with us a Petition for Certiorari with prayer for the issuance of a Temporary Restraining Order (TRO). A TRO was issued to enjoin the enforcement of the NLRC Resolution until further orders.12

In a Resolution dated December 7, 1998,13 we referred the petition to

the CA in accordance with the St. Martin Funeral Home v. National Labor Relations Commission14 ruling.

On July 31, 2002, the CA issued its assailed Decision which dismissed the petition and affirmed the NLRC Decision. The CA held that as long as the medical certificate presented did not fall under any of the infirmities set forth in petitionerís rules and regulations, the unconfirmed leave should be treated merely as absence without leave and was not subject to disciplinary action; that petitioner may not rely on the previous absences of respondents in 1978 and 1982 to show abuse of sick leave privileges because petitioner had acknowledged that respondent had already been penalized with suspension, and those absences were committed beyond the three-year period mentioned in their rules and regulations; that in its desire to clothe private respondentís dismissal with a semblance of legality, petitioner points to private respondentís fourth unauthorized leave of absence committed in August 1989 while the third unauthorized leave of absence was being deliberated upon; and that the notice of dismissal referred only to her third unauthorized leave, thus she could not be faulted for an infraction for which she was not charged.

Petitionerís Motion for Reconsideration was denied in a Resolution dated February 7, 2003.

Hence, petitioner filed the instant Petition for Review on Certiorari alleging the following grounds:

I

WITH ALL DUE RESPECT, THE HONORABLE COURT FAILED TO CONSIDER THAT THE PETITION HEREIN DOES NOT MERELY INQUIRE UPON THE RELATIVE WEIGHT OF THE EVIDENCE PRESENTED BY THE PARTIES, BUT IS ANCHORED ON MANIFESTLY ERRONEOUS CONCLUSIONS ON THE PART OF THE NLRC ARISING FROM GROSS MISAPPREHENSION OF THE FACTS OBTAINING IN THE CASE. AMONG OTHERS, IT WAS GRAVE ERROR TO CONCLUDE THAT THERE WAS NO PATENT ABUSE OF THE SICK LEAVE PRIVILEGE ON THE PART OF THE PRIVATE RESPONDENT BECAUSE THE MEDICAL CERTIFICATES SHE PRESENTED WERE NOT FALSE, FORGED, OR ALTERED TOTALLY DISREGARDING THE FACT THAT "ABUSE OF SICK LEAVE PRIVILEGE" IS A CAUSE SEPARATELY ENUMERATED UNDER THE RULES AS A GROUND FOR DISCIPLINARY ACTION.

II

WITH ALL DUE RESPECT, THE HONORABLE COURT FAILED TO CONSIDER THAT THE CONCLUSIONS OF THE NLRC ARE BEREFT OF ANY LEGAL OR FACTUAL BASES AS THERE WERE LEGALLY NO MEDICAL CERTIFICATES TO SPEAK OF, AND THE EXISTENCE THEREOF ARE PURE AND SIMPLE HEARSAY, HENCE COULD NOT BE VALIDLY RELIED UPON OR INVOKED BY THE PRIVATE RESPONDENT TO SUPPORT HER DEFENSE EVEN SUPPOSING TECHNICAL RULES ON EVIDENCE COULD BE RELAXED IN LABOR PROCEEDINGS. 15

Petitioner argues that the NLRCís conclusions that private respondent had not committed a patent abuse of sick leave privileges and that her dismissal was illegal are utterly without any factual or legal basis; that the NLRCís conclusion that the dismissal was illegal was merely based: (1) on the evidence of private respondent; (2) on medical certificates which are clearly hearsay and of no probative value whatsoever; and (3) on medical certificates which, even supposing could be considered, simply failed to cover the period of the leave requested and set forth implausible diagnoses.

Petitioner claims that the CA as well as the NLRC failed to resolve the issue of whether or not the medical certificate should be given any credence at all; that it had presented four witnesses which included their three medical doctors who were subjected to cross-examinations, and yet credence was given to private respondentís hearsay evidence consisting merely of a medical certificate by the latterís attending physician who was not even presented to testify; that since the content of the medical certificate had been rebutted and refuted by petitionerís witnesses, the burden of evidence is shifted to private respondent to show that the medical certificate she submitted was competent, proper, and sound which she failed to do.

Petitioner further claims that the CA erred in not finding that private respondent committed a patent abuse of sick leave privileges which does not arise solely from forgery or alteration of the medical certificate, but on the fact that an employee had frequently and incorrigibly absented herself and then applied for sick leave with absolute impunity armed with medical certificates which not only failed to cover the entire length of the leave but also with implausible diagnoses; that excluding private respondentís unauthorized absences in 1989, she had accumulated 93 days of sick leave from January to July 1989 and 115 days of sick leave in 1988, thus, how can the conclusion be drawn that there was no patent abuse of sick leave privileges; and that her unauthorized absence for which she was terminated all occurred in 1989, thus, the CA erred in saying that petitioner may not rely on the previous absences of respondent in 1978 and 1982 to justify private respondentís dismissal.

We find the petition meritorious. Private respondent was validly dismissed by petitioner. It must be borne in mind that the basic principle in termination cases is that the burden of proof rests upon the employer to show that the dismissal is for just and valid cause and failure to do so would necessarily mean that the dismissal was not justified and, therefore, was illegal.16 For dismissal to be valid, the evidence must be substantial and not arbitrary and must be founded on clearly established facts.17 We find that petitioner had discharged this burden.

Under petitionerís Department Order No. ADM-79-02, for the absence due to an alleged illness to be considered unauthorized, without pay, and subject to disciplinary action, it must be shown that the medical certificate is forged, altered as to the date and contents, false as to the facts stated therein, issued by a doctor not qualified to attend to the patientís illness, and there is patent abuse of sick leave privileges. The penalty for three offenses of unauthorized absences committed within the three-year period is dismissal.

Private respondentís unconfirmed absences from June 28 to July 14, 1989 is the crucial period in this particular case.

The Labor Arbiter and the NLRC found that private respondent was illegally dismissed by petitioner. Such finding was affirmed by the CA. They all concluded that the medical certificate which private respondent presented did not fall under the circumstances enumerated in Department Order No. ADM-79-02, and there was no patent abuse of sick leave privileges, thus, there was no basis for petitionerís doctors not to confirm her sick leave and consider the same unauthorized.

The jurisdiction of this Court in a petition for review on certiorari is limited to reviewing only errors of law, not of fact, unless the factual findings being assailed are not supported by evidence on record or the impugned judgment is based on a misapprehension of facts.18 We find that those exceptions are present in the instant case.

We find that petitioner had sufficiently established that private respondent committed a patent abuse of her sick leave privileges which is one of the grounds listed in Department Order No. ADM-79-02 for disciplinary action.

Private respondent was absent on June 25, 1989 and the reason given was sore eyes. She was then absent from June 25 to July 14, 1989. When she reported for work on July 15, 1989, she went to petitionerís doctor, Dr. Benito Dungo, for confirmation of her leave of absence and presented a medical certificate19 from her attending physician, Dr. Manuel C. Damian of Tanauan Batangas, who certified that she had been under his professional care from June 25 to July 12, 1989 for systemic viral disease.

Dr. Dungo confirmed private respondentís leave of absence from June 25 to 27, 1989 only and did not confirm her leave from June 28 to July 14, 1989 for the following reasons: (a) systemic viral disease indicated in the medical certificate does not warrant such a very long time of rest and recuperation; (b) if she really had an infection, the logical recourse is for the attending physician to conduct a chest x-ray and blood examination to determine the cause of the prolonged fever, but such was not made; (c) if she was really ill for such a long time, she would have already been confined in a hospital for treatment as petitioner has standing agreements with various hospitals to provide immediate medical assistance free of charge; (d) she displayed no residue of symptoms of flu, thus casting doubt on the veracity of her claim; (e) she called in sick on June 25, 1989 that she was suffering from sore eyes but her medical certificate made no mention of such condition; and (f) her medical records reveal a pattern of abuse of sick leave privileges.20

Private respondentís reason for her absence on June 25, 1989 was sore eyes, however the medical certificate that she presented for her prolonged absence from June 25 to July 14, 1989 was systemic viral disease and as correctly observed by Dr. Dungo, sore eyes was never mentioned therein.

Moreover, in the medical progress note21 of Dr. Damian dated October 10, 1989 attached to private respondentís position paper submitted before the Labor Arbiter, it was shown that private respondent was seen by Dr. Damian on June 25, 1989 at 9:00 a.m. and her temperature was 40 degrees and she was complaining of severe headache and body pain. It would appear that there was a discrepancy between the reason given when she called in sick on June 25, 1989 and her complaints when she consulted Dr. Damian on the same day. In fact, when private respondent was asked on cross-examination why sore eyes was never mentioned in her medical certificate, all that she could say was "the diagnosis was systemic viral disease, sama-sama na lahat".22

The medical certificate issued by Dr. Damian showed that private respondent was under his professional care from June 25 to July 12, 1989. However, the medical progress note dated October 10, 1989 of the same doctor showed that private respondent consulted him only on June 25, 27, and 29, 1989. It was never mentioned that Dr. Damian had seen private respondent after June 29, 1989. Thus, there was even a discrepancy between the medical certificate dated July 13, 1989 and the medical progress note as to the time frame that private respondent was seen by Dr. Damian. The medical certificate did not cover private respondentís absences from July 13 to 14, 1989 and she only reported for work on July 15, 1989.

It bears stressing that from the time private respondent called in sick on June 25, 1989 due to sore eyes, she never called up petitioner again until she reported for work on July 15, 1989. She never went to petitionerís doctors for them to verify her sickness.

Private respondent had committed the first two offenses of unauthorized absences in the same year. First, she did not report for work from March 19 to 29, 1989 without notice to petitioner, thus her absence was treated as unauthorized and considered her first offense for which she was penalized with suspension. Second, she again did not report for work from June 5 to 13, 1989 and when she reported for work and presented her medical certificate, it covered the period from June 5 to 8, 1989 only but she did not report for work until June 14, 1989. Petitionerís doctor did not confirm her absences from June 11 to 13, 1989, thus, the same was considered unauthorized and her second offense for which she was penalized again with suspension. These two unauthorized absences together with her third unauthorized absences committed from June 28 to July 14, 1989 are sufficient bases for petitionerís finding that private respondent patently abused her sick leave privileges.

Previous infractions may be used as justification for an employeeís dismissal from work in connection with a subsequent similar offense.23 Moreover, it is in petitionerís rules and regulations that the same offense committed within the three-year period merits the penalty of dismissal. The CAís finding that petitioner may not rely on the previous absences of private respondent in 1978 and 1982 to show abuse of sick leave privileges has no basis since private respondent was dismissed for committing her three unauthorized absences all in 1989.

It had also been established by Dr. Dungoís testimony that private respondentís medical record showed that she did not go to the clinic for consultation as she would only present a medical certificate and get a clearance for her sick leave;24 that the same medical record showed her absences in 1989 as follows: (1) From April 27 to May 4 due to urinary tract infection and she submitted a medical certificate;25 (2) From May 5 to 14 due to back pain;26 (3) From May 20 to 21 due to migraine;27 (4) June 5 to 13 due to gastroenteritis (penalized as her second offense); (5) June 15 to 24 due to conjunctivitis and submitted a medical certificate;28 and (6) June 25 to July 14, 1989 due to systemic viral disease with medical certificate (her third offense penalized with dismissal). Private respondent had incurred a total absence of 85 days from January to October 1989;29 and 115 days in 1988.30 It had also been established that petitionerís doctors confirmed most of her sick leave out of compassion31 and that her medical records showed that there were several warnings given her regarding her unconfirmed sick leave.32

As petitioner stated in its pleadings, it is a telecommunication service company which provides the country with various telecommunication services and facilities. Its operations are a vital part to many transactions all over the country and abroad, and private respondent was one of its telephone operators who used to connect all these calls. Thus, her patent abuse of her sick leave privileges is detrimental to petitionerís business.

While it is true that compassion and human consideration should guide the disposition of cases involving termination of employment since it affects one's source or means of livelihood, it should not be overlooked that the benefits accorded to labor do not include compelling an employer to retain the services of an employee who has been shown to be a gross liability to the employer. The law in protecting the rights of the employees authorizes neither oppression nor self-destruction of the employer.33 It should be made clear that when the law tilts the scale of justice in favor of labor, it is but a recognition of the inherent economic inequality between labor and management. The intent is to balance the scale of justice; to put the two parties on relatively equal positions. There may be cases where the circumstances warrant favoring labor over the interests of management but never should the scale be so tilted if the result is an injustice to the employer. Justitia nemini neganda est (Justice is to be denied to none).34

WHEREFORE, the instant petition is GRANTED. The Decision dated July 31, 2002 and the Resolution dated February 7, 2003 of the Court of Appeals in CA-G.R. SP No. 51060 are hereby REVERSED and SET ASIDE. The complaint of Amparo Balbastro is DISMISSED.

No costs.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

ROMEO J. CALLEJO, SR.
Associate Justice
MINITA V. CHICO-NAZARIO
Asscociate Justice

ANTONIO EDUARDO B. NACHURA
Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courtís Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersonís Attestation, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courtís Division.

REYNATO S. PUNO
Chief Justice


Foonotes

1 Penned by Justice Mario Guariña III and concurred in by Justices Conrado M. Vasquez, Jr. and Andres B. Reyes, Jr.; CA rollo, pp. 271-276.

2 Id. at 299.

3 Records, p. 84.

4 "Traffic Operators Guidelines for Disciplinary Actions"

x x x x

7. Unconfirmed Sick Leave. This may be treated as:

a) AWOL, or

b) Leave of Absence without pay.

8. AWOL

Frequency Penalty

1st offense Suspension- # of days absent x 2

2nd offense Suspension - # of days absent x 3 but not less than 15 days

3rd offense Dismissal

within a 3 year period.

5 Docketed as NLRC- NCR Case No. 00-10-06232-91.

6 Records, pp. 24-47.

7 Penned by Labor Arbiter Jose G. De Vera, records, pp. 1032-1042.

8 Id. at 1042.

9 Docketed as NLRC NCR CA No. 007802-94.

10 Penned by Commissioner Ireneo B.Bernardo, concurred in by Presiding Commissioner Lourdes C. Javier and Commissioner Joaquin A. Tanodra, records, pp. 1342-1348.

11 Id. at 1386-1387.

12 CA rollo, pp. 98-99.

13 Id. at 160.

14 356 Phil. 811 (1998).

15 Rollo, pp. 49-50.

16 Royal Crown Internationale v. National Labor Relations Commission, G.R. No. 78085, October 16, 1989, 178 SCRA 569, 578 citing Polymedic General Hospital v. National Labor Relations Commission, G.R. No. L-64190, January 31, 1985, 134 SCRA 420, 424.

17 Skippers Pacific, Inc. v. Mira, 440 Phil. 906, 918 (2002).

18 German Machineries Corporation v. Endaya, G.R. No. 156810, November 25, 2004, 444 SCRA 329, 340, citing Bolinao Security and Investigation Service, Inc. v. Toston, G.R. No. 139135, January 29, 2004, 421 SCRA 406, 412.

19 Annex "D-1", records, p. 934.

20 Exhibit "1", Affidavit of Dr. Dungo, id. at 130-135.

21 Id. at 9.

22 TSN, January 27, 1993, p.87.

23 Stellar Industrial Services, Inc. v. National Labor Relations Commission, 322 Phil. 352, 364 (1996).

24 TSN, March 8, 1993, p. 30.

25 Id. at 31.

26 Id. at 32.

27 Id. at 33.

28 Id. at 34.

29 TSN, March 18, 1993, p. 23.

30 Id. at 25.

31 TSN, October 21, 1993, p. 42.

32 Id.

33 Philippine Geothermal, Inc. v. National Labor Relations Commission, G.R. No. 106370, September 8, 1994, 236 SCRA 371, 378-379 citing Pacific Mills, Inc. v. Alonzo, G.R. No. 78090, July 26, 1991, 199 SCRA 617, 622.

34 Philippine Geothermal, Inc. v. National Labor Relations Commission, id. at 379.


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