Professional Documents
Culture Documents
10-7-17-SC
OF PLAGIARISM, ETC., AGAINST
ASSOCIATE JUSTICE MARIANO C.
DEL CASTILLO.
This case is concerned with charges that, in preparing a decision for the Court, a
designated member plagiarized the works of certain authors and twisted their
meanings to support the decision.
The Background Facts
Petitioners Isabelita C. Vinuya and about 70 other elderly women, all members
of the Malaya Lolas Organization, filed with the Court in G.R. No. 162230 a
special civil action of certiorari with application for preliminary mandatory
injunction against the Executive Secretary, the Secretary of Foreign Affairs, the
Secretary of Justice, and the Office of the Solicitor General.
Petitioners alleged that they have since 1998 been approaching the Executive
Department, represented by the respondent public officials, requesting
assistance in filing claims against the Japanese military officers who established
the comfort women stations. But that Department declined, saying that
petitioners individual claims had already been fully satisfied under the Peace
Treaty between the Philippines and Japan.
Petitioners claim that the integrity of the Courts deliberations in the case
has been put into question by Justice Del Castillos fraud. The Court should thus
address and disclose to the public the truth about the manifest intellectual theft
and outright plagiarism[3] that resulted in gross prejudice to the petitioners.
xxxx
On July 27, 2010, the Court En Banc referred the charges against Justice
Del Castillo to its Committee on Ethics and Ethical Standards, chaired by the
Chief Justice, for investigation and recommendation. The Chief Justice
designated retired Justice Jose C. Vitug to serve as consultant of the
Committee. He graciously accepted.
In the meantime, on July 19, 2010, Evan Criddle wrote on his blog that he
and his co-author Evan Fox-Descent (referred to jointly as Criddle-Descent)
learned of alleged plagiarism involving their work but Criddles concern, after
reading the supplemental motion for reconsideration, was the Courts conclusion
that prohibitions against sexual slavery are not jus cogens or internationally
binding norms that treaties cannot diminish.
On July 23, 2010, Dr. Mark Ellis wrote the Court expressing concern that
in mentioning his work, the Court may have misread the argument [he] made in
the article and employed them for cross purposes. Dr. Ellis said that he wrote
the article precisely to argue for appropriate legal remedy for victims of war
crimes.
On August 8, 2010, after the referral of the matter to the Committee for
investigation, the Dean of the University of the Philippines (U.P.) College of
Law publicized a Statement from his faculty, claiming that the Vinuya decision
was an extraordinary act of injustice and a singularly reprehensible act of
dishonesty and misrepresentation by the Highest Court of the land. The
statement said that Justice Del Castillo had a deliberate intention to appropriate
the original authors work, and that the Courts decision amounted to an act of
intellectual fraud by copying works in order to mislead and deceive.[5]
On August 18, 2010 Mr. Christian J. Tams wrote Chief Justice Renato C.
Corona that, although relevant sentences in the Courts decision were taken from
his work, he was given generic reference only in the footnote and in connection
with a citation from another author (Bruno Simma) rather than with respect to
the passages taken from his work. He thought that the form of referencing was
inappropriate. Mr. Tams was also concerned that the decision may have used his
work to support an approach to erga omnes concept (obligations owed by
individual States to the community of nations) that is not consistent with what
he advocated.
On August 26, 2010, the Committee heard the parties submissions in the
summary manner of administrative investigations. Counsels from both sides
were given ample time to address the Committee and submit their evidence. The
Committee queried them on these.
Counsels for Justice Del Castillo later asked to be heard with the other
parties not in attendance so they could make submissions that their client
regarded as sensitive and confidential, involving the drafting process that went
into the making of the Courts decision in the Vinuya case. Petitioners counsels
vigorously objected and the Committee sustained the objection. After consulting
Justice Del Castillo, his counsels requested the Committee to hear the Justices
court researcher, whose name need not be mentioned here, explain the research
work that went into the making of the decision in the Vinuya case. The
Committee granted the request.
After the hearing, the Committee gave the parties ten days to file their
respective memoranda. They filed their memoranda in due course. Subsequently
after deliberation, the Committee submitted its unanimous findings and
recommendations to the Court.
The Issues
1. Whether or not, in writing the opinion for the Court in the Vinuya case,
Justice Del Castillo plagiarized the published works of authors Tams, Criddle-
Descent, and Ellis.
2. Whether or not Justice Del Castillo twisted the works of these authors to
make it appear that such works supported the Courts position in
the Vinuya decision.
Because of the pending motion for reconsideration in the Vinuya case, the Court
like its Committee on Ethics and Ethical Standards will purposely avoid
touching the merits of the Courts decision in that case or the soundness or lack
of soundness of the position it has so far taken in the same. The Court will deal,
not with the essential merit or persuasiveness of the foreign authors works, but
how the decision that Justice Del Castillo wrote for the Court appropriated parts
of those works and for what purpose the decision employed the same.
At its most basic, plagiarism means the theft of another persons language,
thoughts, or ideas. To plagiarize, as it is commonly understood according to
Webster, is to take (ideas, writings, etc.) from (another) and pass them off as
ones own.[8] The passing off of the work of another as ones own is thus an
indispensable element of plagiarism.
Petitioners point out that the Vinuya decision lifted passages from Tams
book, Enforcing Erga Omnes Obligations in International Law (2006) and used
them in Footnote 69 with what the author thought was a mere generic
reference. But, although Tams himself may have believed that the footnoting in
this case was not an appropriate form of referencing,[9] he and petitioners cannot
deny that the decision did attribute the source or sources of such
passages. Justice Del Castillo did not pass off Tams work as his own. The
Justice primarily attributed the ideas embodied in the passages to Bruno Simma,
whom Tams himself credited for them. Still, Footnote 69 mentioned, apart from
Simma, Tams article as another source of those ideas.
That it would have been better had Justice Del Castillo used the
introductory phrase cited in rather than the phrase See would make a case of
mere inadvertent slip in attribution rather than a case of manifest intellectual
theft and outright plagiarism. If the Justices citations were imprecise, it would
just be a case of bad footnoting rather than one of theft or deceit. If it were
otherwise, many would be target of abuse for every editorial error, for every
mistake in citing pagination, and for every technical detail of form.
Petitioners also attack the Courts decision for lifting and using as
footnotes, without attribution to the author, passages from the published work of
Ellis. The Court made the following statement on page 27 of its decision,
marked with Footnote 65 at the end:
We fully agree that rape, sexual slavery, torture, and sexual violence are
morally reprehensible as well as legally prohibited under contemporary
international law. 65 xxx
Footnote 65 appears down the bottom of the page. Since the lengthy
passages in that footnote came almost verbatim from Ellis article, [10] such
passages ought to have been introduced by an acknowledgement that they are
from that article. The footnote could very well have read:
Next, petitioners also point out that the following eight sentences and
their accompanying footnotes appear in text on pages 30-32 of
the Vinuya decision:
xxx In international law, the term jus cogens (literally, compelling
law) refers to norms that command peremptory authority, superseding
conflicting treaties and custom. Jus cogens norms are considered
peremptory in the sense that they are mandatory, do not admit
derogation, and can be modified only by general international norms of
equivalent authority.71
Early strains of the jus cogens doctrine have existed since the 1700s,72 but
peremptory norms began to attract greater scholarly attention with the
publication of Alfred von Verdross's influential 1937 article, Forbidden Treaties
in International Law.73 The recognition of jus cogens gained even more force in
the 1950s and 1960s with the ILCs preparation of the Vienna Convention on the
Law of Treaties (VCLT).74 Though there was a consensus that certain
international norms had attained the status of jus cogens,75 the ILC was unable
to reach a consensus on the proper criteria for identifying peremptory norms.
After an extended debate over these and other theories of jus cogens, the
ILC concluded ruefully in 1963 that there is not as yet any generally
accepted criterion by which to identify a general rule of international law
as having the character of jus cogens.76 In a commentary accompanying
the draft convention, the ILC indicated that the prudent course seems to
be to x x x leave the full content of this rule to be worked out in State
practice and in the jurisprudence of international tribunals. 77 Thus,
while the existence of jus cogens in international law is undisputed, no
consensus exists on its substance, 77 beyond a tiny core of principles and
rules.78
Unless amply explained, the above lifting from the works of Ellis and
Criddle-Descent could be construed as plagiarism. But one of Justice Del
Castillos researchers, a court-employed attorney, explained how she
accidentally deleted the attributions, originally planted in the beginning drafts of
her report to him, which report eventually became the working draft of the
decision. She said that, for most parts, she did her research electronically. For
international materials, she sourced these mainly from Westlaw, an online
research service for legal and law-related materials to which the Court
subscribes.
In the old days, the common practice was that after a Justice would have
assigned a case for study and report, the researcher would source his materials
mostly from available law books and published articles on print. When he found
a relevant item in a book, whether for one side of the issue or for the other, he
would place a strip of paper marker on the appropriate page, pencil mark the
item, and place the book on his desk where other relevant books would have
piled up. He would later paraphrase or copy the marked out passages from some
of these books as he typed his manuscript on a manual typewriter. This occasion
would give him a clear opportunity to attribute the materials used to their
authors or sources.
Justice Del Castillos researcher showed the Committee the early drafts of
her report in the Vinuya case and these included the passages lifted from the
separate articles of Criddle-Descent and of Ellis with proper attributions to these
authors. But, as it happened, in the course of editing and cleaning up her draft,
the researcher accidentally deleted the attributions.
First Finding
The Court adopts the Committees finding that the researchers explanation
regarding the accidental removal of proper attributions to the three authors is
credible. Given the operational properties of the Microsoft program in use by
the Court, the accidental decapitation of attributions to sources of research
materials is not remote.
For most senior lawyers and judges who are not computer literate, a
familiar example similar to the circumstances of the present case would
probably help illustrate the likelihood of such an accident happening. If
researcher X, for example, happens to be interested in the inalienable character
of juridical personality in connection with an assignment and if the book of the
learned Civilist, Arturo M. Tolentino, happens to have been published in a
website, researcher X would probably show interest in the following passage
from that book:
xxx Both juridical capacity and capacity to act are not rights, but
qualities of persons; hence, they cannot be alienated or renounced.15
xxx
_____________________________
15 3 Von Tuhr 296; 1 Valverde 291.
Because the sentence has a footnote mark (#15) that attributes the idea to other
sources, it is evident that Tolentino did not originate it. The idea is not a product
of his intellect. He merely lifted it from Von Tuhr and Valverde, two reputable
foreign authors.
When researcher X copies and pastes the above passage and its footnote into a
manuscript-in-the-making in his computer, the footnote number would, given
the computer program in use, automatically change and adjust to the footnoting
sequence of researcher Xs manuscript. Thus, if the preceding footnote in the
manuscript when the passage from Tolentino was pasted on it is 23, Tolentinos
footnote would automatically change from the original Footnote 15 to Footnote
24.
xxx Both juridical capacity and capacity to act are not rights, but
qualities of persons; hence, they cannot be alienated or renounced.24
xxx
_____________________________
23 From Tolentino.
24 3 Von Tuhr 296; 1 Valverde 291.
The tag is of course temporary and would later have to go. It serves but a
marker to help researcher X maneuver the passage into the right spot in his final
manuscript.
The mistake of Justice Del Castillos researcher is that, after the Justice
had decided what texts, passages, and citations were to be retained including
those from Criddle-Descent and Ellis, and when she was already cleaning up
her work and deleting all subject tags, she unintentionally deleted the footnotes
that went with such tagswith disastrous effect.
xxx Both juridical capacity and capacity to act are not rights, but
qualities of persons; hence, they cannot be alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.
As it happened, the Microsoft word program does not have a function that
raises an alarm when original materials are cut up or pruned. The portions that
remain simply blend in with the rest of the manuscript, adjusting the footnote
number and removing any clue that what should stick together had just been
severed.
Petitioners point out, however, that Justice Del Castillos verified letter of
July 22, 2010 is inconsistent with his researchers claim that the omissions were
mere errors in attribution. They cite the fact that the Justice did not disclose his
researchers error in that letter despite the latters confession regarding her
mistake even before the Justice sent his letter to the Chief Justice. By denying
plagiarism in his letter, Justice Del Castillo allegedly perjured himself and
sought to whitewash the case.[13]
But nothing in the July 22 letter supports the charge of false testimony.
Justice Del Castillo merely explained that there was every intention to attribute
all sources whenever due and that there was never any malicious intent to
appropriate anothers work as our own, which as it turns out is a true
statement. He recalled how the Court deliberated upon the case more than once,
prompting major revisions in the draft of the decision. In the process, (s)ources
were re-studied, discussions modified, passages added or deleted. Nothing in
the letter suggests a cover-up. Indeed, it did not preclude a researchers
inadvertent error.
And it is understandable that Justice Del Castillo did not initially disclose
his researchers error. He wrote the decision for the Court and was expected to
take full responsibility for any lapse arising from its preparation. What is more,
the process of drafting a particular decision for the Court is confidential, which
explained his initial request to be heard on the matter without the attendance of
the other parties.
Notably, neither Justice Del Castillo nor his researcher had a motive or
reason for omitting attribution for the lifted passages to Criddle-Descent or to
Ellis. The latter authors are highly respected professors of international law. The
law journals that published their works have exceptional reputations. It did not
make sense to intentionally omit attribution to these authors when the decision
cites an abundance of other sources. Citing these authors as the sources of the
lifted passages would enhance rather than diminish their informative
value. Both Justice Del Castillo and his researcher gain nothing from the
omission. Thus, the failure to mention the works of Criddle-Decent and Ellis
was unquestionably due to inadvertence or pure oversight.
But petitioners theory ignores the fact that plagiarism is essentially a form
of fraud where intent to deceive is inherent. Their theory provides no room for
errors in research, an unrealistic position considering that there is hardly any
substantial written work in any field of discipline that is free of any
mistake. The theory places an automatic universal curse even on errors that, as
in this case, have reasonable and logical explanations.
Indeed, the 8th edition of Blacks Law Dictionary defines plagiarism as the
deliberate and knowing presentation of another person's original ideas or
creative expressions as one's own.[16] Thus, plagiarism presupposes intent and a
deliberate, conscious effort to steal anothers work and pass it off as ones own.
Besides, the Court said nothing in U.P. Board of Regents that would
indicate that an intent to pass off anothers work as ones own is not required in
plagiarism. The Court merely affirmed the academic freedom of a university to
withdraw a masters degree that a student obtained based on evidence that she
misappropriated the work of others, passing them off as her own. This is not the
case here since, as already stated, Justice Del Castillo actually imputed the
borrowed passages to others.
Second Finding
The Court also adopts the Committees finding that the omission of
attributions to Criddle-Descent and Ellis did not bring about an impression that
Justice Del Castillo himself created the passages that he lifted from their
published articles. That he merely got those passages from others remains self-
evident, despite the accidental deletion. The fact is that he still imputed the
passages to the sources from which Criddle-Descent and Ellis borrowed them in
the first place.
This is best illustrated in the familiar example above. After the deletion of
the subject tag and, accidentally, its footnote which connects to the source, the
lifted passage would appear like this:
xxx Both juridical capacity and capacity to act are not rights, but
qualities of persons; hence, they cannot be alienated or renounced.43
_____________________________
43 3 Von Tuhr 296; 1 Valverde 291.
Third Finding
Petitioners allege that the decision twisted the passages from Tams,
Criddle-Descent, and Ellis. The Court adopts the Committees finding that this is
not so. Indeed, this allegation of twisting or misrepresentation remains a
mystery to the Court. To twist means to distort or pervert the meaning of. [19] For
example, if one lifts the lyrics of the National Anthem, uses it in his work, and
declares that Jose Palma who wrote it did not love his country, then there is
twisting or misrepresentation of what the anthems lyrics said. Here, nothing in
the Vinuya decision said or implied that, based on the lifted passages, authors
Tams, Criddle-Descent, and Ellis supported the Courts conclusion that the
Philippines is not under any obligation in international law to espouse Vinuya et
al.s claims.
The fact is that, first, since the attributions to Criddle-Descent and Ellis
were accidentally deleted, it is impossible for any person reading the decision to
connect the same to the works of those authors as to conclude that in writing the
decision Justice Del Castillo twisted their intended messages. And, second, the
lifted passages provided mere background facts that established the state of
international law at various stages of its development. These are neutral data
that could support conflicting theories regarding whether or not the judiciary
has the power today to order the Executive Department to sue another country
or whether the duty to prosecute violators of international crimes has attained
the status of jus cogens.
No Misconduct
No Inexcusable Negligence
Finally, petitioners assert that, even if they were to concede that the
omission was the result of plain error, Justice Del Castillo is nonetheless guilty
of gross inexcusable negligence. They point out that he has full control and
supervision over his researcher and should not have surrendered the writing of
the decision to the latter.[23]
But this assumes that Justice Del Castillo abdicated the writing of
the Vinuya decision to his researcher, which is contrary to the evidence adduced
during the hearing. As his researcher testified, the Justice set the direction that
the research and study were to take by discussing the issues with her, setting
forth his position on those issues, and reviewing and commenting on the study
that she was putting together until he was completely satisfied with it. [24] In
every sense, Justice Del Castillo was in control of the writing of the report to the
Court, which report eventually became the basis for the decision, and
determined its final outcome.
Assigning cases for study and research to a court attorney, the equivalent
of a law clerk in the United States Supreme Court, is standard practice in the
high courts of all nations. This is dictated by necessity. With about 80 to 100
cases assigned to a Justice in our Court each month, it would be truly senseless
for him to do all the studies and research, going to the library, searching the
internet, checking footnotes, and watching the punctuations. If he does all these
by himself, he would have to allocate at least one to two weeks of work for each
case that has been submitted for decision. The wheels of justice in the Supreme
Court will grind to a halt under such a proposition.
The Case
The Antecedents
Petitioners Norma Tan, Jeanette Tan, Julieta Tan, Rommel [3] Tan and
Enrique Tan, Jr. (Tan Heirs) are co-owners of a coconut farmland (Land) located
at Labo, Ozamis City with an area of 25,780 square meters.[4]
Esteban Pollescas (Esteban) was the original tenant of the Land. Upon
Estebans death in 1991, his son Enrique Pollescas (Enrique) succeeded him and
was appointed as tenant by the landowner Enrique Tan (Tan).[5]
Consequently, the Tan Heirs filed a complaint for estafa against Reynalda
with the Municipal Trial Court in Cities, Ozamis City, Branch 2. [9] The trial
court found Reynalda guilty of estafa[10] and sentenced her to five months
of arresto mayor maximum to two years of prision correccional minimum and
ordered her to pay the Tan Heirs P3,656.70, the amount which she
misappropriated.[11]
SO ORDERED.[14]
SO ORDERED.[15]
The Tan Heirs appealed the decision of the DARAB to the Court of
Appeals. The Court of Appeals affirmed the decision of the DARAB ordering
the Tan Heirs to respect Reynaldas possession and cultivation of the Land.
In affirming the decision of the DARAB, the Court of Appeals cited Roxas y
Cia v. Cabatuando, et al.[16] where this Court held that x x x mere failure of a
tenant to pay the landholders share does not necessarily give the latter the right
to eject the former when there is lack of deliberate intent on the part of the
tenant to pay x x x.
The Court of Appeals held that Reynaldas failure to deliver the full amount of
the Tan Heirs share could not be considered as a willful and deliberate intent to
deprive the Tan Heirs of their share. The Court of Appeals held that Reynalda
honestly believed that she was entitled to a share of the harvests in 1992-1993
while the case for Annulment of Compromise Agreement was pending before
the DARAB-Ozamis. Reynalda also believed that she could effect a set-off for
her 1992-1993 share from the 1994 share of the Tan Heirs.
The Court of Appeals further declared that the rental must be legal to consider
non-payment of such as a ground for ejectment. The appellate court stated that:
Citing Section 8 of Republic Act No. 3844 (RA 3844), the Court of Appeals also
held [t]here is nothing in the law that makes failure to deliver share a ground for
extinguishment of leasehold agreement.[18] Reynaldas failure to deliver fully the
share of the Tan Heirs is not sufficient to disturb the agricultural leasehold
relation.[19]
The Issues
I
WHETHER THERE IS NO EXCEPTION TO THE GROUNDS
FOR EXTINGUISHMENT OF LEASEHOLD RELATION
UNDER SECTION 8 OF RA 3844.
II
WHETHER THE COURT OF APPEALS CORRECTLY RULED
THAT REYNALDA IS OBLIGED TO PAY ONLY 1/4 OR 25%
OF THE NORMAL HARVEST AND NOT 2/3 WHEN THE
SUBJECT LAND WAS NOT YET PLACED UNDER THE
LEASEHOLD SYSTEM PURSUANT TO SECTION 12 OF RA
6657.[20]
At the outset, the Court declares that RA 6657 is the governing statute in
this case.
(3) The agricultural lessee planted crops or used the landholding for a
purpose other than what had been previously agreed upon;
(6) The agricultural lessee does not pay the lease rental when it falls
due: Provided, That if the non-payment of the rental shall be due to crop
failure to the extent of seventy-five per centum as a result of a fortuitous
event, the non-payment shall not be a ground for dispossession, although the
obligation to pay the rental due that particular crop is not thereby
extinguished; or
In the instant case, the Tan Heirs seek Reynaldas ejectment from the Land
on the ground of non-payment of lease rental.
The Court agrees with the Court of Appeals that for non-payment of the
lease rental to be a valid ground to dispossess the agricultural lessee of the
landholding, the amount of the lease rental must first of all be lawful. If the
amount of lease rental claimed exceeds the limit allowed by law, non-payment
of lease rental cannot be a ground to dispossess the agricultural lessee of the
landholding.
Reynalda and the Tan Heirs failed to agree on a lawful lease rental.
Accordingly, the DAR must first fix the provisional lease rental payable by
Reynalda to the Tan Heirs pursuant to the second paragraph of Section 34 of RA
3844 as amended.[30] Until the DAR has fixed the provisional lease rental,
Reynalda cannot be in default in the payment of lease rental since such amount
is not yet determined. There can be no delay in the payment of an undetermined
lease rental because it is impossible to pay an undetermined amount. That
Reynalda is not yet in default in the payment of the lease rental is a basic reason
why she cannot be lawfully ejected from the Land for non-payment of rental.[31]
No ground for extinguishment of leasehold relation
The Court also holds that there is no ground for the extinguishment of
leasehold relation in this case.
Only in the instances stated in Sections 8 and 28 of RA 3844 as amended
can leasehold relation be terminated. These provisions read:
WHEREFORE, the Court DENIES the petition and AFFIRMS the assailed
Decision dated 31 August 2000 of the Court of Appeals in CA-G.R. SP No.
48823. The Court REMANDS this case to the Department of Agrarian Reform
for the determination of the provisional lease rental. Costs against petitioners.
SO ORDERED.
FIRST DIVISION
[G.R. No. 144412. November 18, 2003]
DECISION
CARPIO, J.:
The Case
Before the Court is a petition for review assailing the Decision of 27 April
[1] [2]
2000 and the Resolution of 8 August 2000 of the Court of Appeals in CA-G.R. SP
No. 51451. The Court of Appeals upheld the Decision of 18 September 1998 and
[3]
Antecedent Facts
For a background of this case, we quote in part from the Decision of the Court of
Appeals:
PrivaterespondentPotencianoGalanidawashiredbypetitionerAlliedBanking
Corporationon11January1978androsefromaccountantbook(k)eeperto
assistantmanagerin1991.HisappointmentwascoveredbyaNoticeofPersonnel
Actionwhichprovidesasoneoftheconditionsofemploymenttheprovisionon
petitionersrighttotransferemployees:
REGULARAPPOINTMENT:xxxItisunderstoodthatthebankreservestheright
totransferorassignyoutootherdepartmentsorbranchesofthebankastheneed
arisesandintheinterestofmaintainingsmoothanduninterruptedservicetothe
public.
Privaterespondentwaspromotedseveraltimesandwastransferredtoseveral
branchesasfollows:
a)January,1978toMarch,1982
TagbilaranCityBranch
b)April,1982toMay,1984
LapulapuCityBranch
c)June,1984
MandaueCityBranch
d)July,1984toApril,1986
TagbilaranCityBranch
e)May,1986toMay,1987
DumagueteCityBranch
f)June,1987toAugust,1987
CarbonBranch,CebuCity
g)September,1987toSept.1989
LapulapuCityBranch,Cebu
h)October,1989toSept.1992
CarbonBranch,CebuCity
i)October1992toSept.1994
JakosalemRegionalBranch,
CebuCity(Rollo,p.47)
Effectingarotation/movementofofficersassignedintheCebuhomebase,
petitionerlistedrespondentassecondintheorderofpriorityofassistantmanagers
tobeassignedoutsideofCebuCityhavingbeenstationedinCebuforsevenyears
already.Privaterespondentmanifestedhisrefusaltobetransferred
toBacolodCityinaletterdated19April1994citingasreasonparental
obligations,expenses,andtheanguishthatwouldresultifheisawayfromhis
family.HethenfiledacomplaintbeforetheLaborArbiterforconstructive
dismissal.
Subsequently,petitionerbankinformedprivaterespondent(Rollo,p.86)thathe
wastoreporttotheTagbilaranCityBrancheffective23May1994.Private
respondentrefused.Inaletterdated13June1994,petitionerwarnedandrequired
ofprivaterespondentasfollows:
Thereisnodiscriminationinyourtransfer.Infact,amongtheofficersmentioned,
onlyyouhaverefusedthenewassignmentcitingdifficultyofworkingawayfrom
yourfamilyasiftheotherofficersconcerneddonotsufferthesame
predicament.Toexemptyoufromtheofficertransferwouldresultinfavoritismin
yourfavoranddiscriminationasagainsttheotherofficersconcerned.
Infurtheranceofmaintainingasmoothanduninterruptedservicetothepublic,and
inaccordancewiththeBanksorderofpriorityofrotatingitsaccountantsplacesof
assignments,youarewellawarethatRobertoIsla,AM/Accountant,assignedin
Cebuformorethanten(10)years,was,onFebruary14,1994,reassignedtoIligan
CityBranchandthentoCagayandeOroCityBranchonJune8,1994.Hence,your
objectiononthegroundofyourlengthofserviceiswithoutmerit.
xxx
Asdiscussed,yourrefusaltofollowinstructionconcerningyourtransferand
reassignmenttoBacolodCityandtoTagbilaranCityispenalizedunderArticleXII
oftheBanksEmployeeDisciplinePolicyandProcedure[which]provides:
XIITransferandReassignment
Refusaltofollowinstructionconcerningtransfersandreassignments.
Firstandsubsequentoffenses
Thepenaltymayrangefromsuspensiontodismissalasdeterminedby
management.Theemployeeshallberequiredtocomplywiththeorderoftransfer
andreassignment,ifthepenaltyisnotterminationofemployment.
Inviewoftheforegoing,pleaseexplaininwritingwithinthree(3)daysfrom
receipthereofwhynodisciplinaryactionshouldbemetedagainstyouforyour
havingrefusedtofollowinstructionsconcerningtheforegoingtransferand
reassignment.xxx [4]
On 16 June 1994, Galanida replied that (w)hether the banks penalty for my
refusal be Suspension or Dismissal xxx it will all the more establish and fortify my
complaint now pending at NLRC, RAB 7. In the same letter, he charged Allied Bank
[5]
xxxWhatIcannotdeciphernowundertheheadshipofMr.Olvedais
managementsdiscriminatoryactoftransferringonlythelongstayingaccountants
ofCebuintheguiseofitsexerciseofmanagementprerogativewhenintruthandin
fact,theulteriormotiveistoaccommodatesomenewofficerswhohappentoenjoy
favorableconnectionwithmanagement.Howcanthebankeverjustifythetransfer
ofMelindaT.Co,anewofficerwhohadexperiencedbeingassignedoutside
ofCebuformorethanayearonlytoTabunokBranch?Ifthepurposeisforcheck
andbalance,ismanagementimplyingthatMelindaCocanbettercarryoutsuch
functionoverMr.LarrySabelino,whoisaseasonedandexperiencedaccountantor
anyoftheMetroCebuaccountantsforthatmatter?Isntthisactofmanagementan
obviousdisplayoffavoritism?xxx [6]
dated 8 September 1994 from Allied Banks Vice-President for Personnel, Mr. Leonso
C. Pe. The Memo informed Galanida that Allied Bank had terminated his services
effective 1 September 1994. The reasons given for the dismissal were: (1) Galanidas
continued refusal to be transferred from the Jakosalem, Cebu City branch; and (2)
his refusal to report for work despite the denial of his application for additional
vacation leave. The salient portion of the Memo reads:
Therefore,yourrefusaltofollowinstructionconcerningyourtransferand
reassignmenttoBacolodCityandtoTagbilaranCityiswithoutanyjustifiable
reasonandconstitutedviolationsofArticleXIIoftheBanksEDPPxxx
Inviewoftheforegoing,pleasebeinformedthattheBankhasterminatedyour
serviceseffectiveSeptember1,1994andconsideredwhateverbenefit,ifany,that
youareentitledasforfeitedinaccordancewith04,VAdministrativePenalties,
page6oftheBanksEDPPwhichprovidesasfollows:
04.Dismissal.
Dismissalisapermanentseparationforcausexxx
NoticeofterminationshallbeissuedbytheInvestigationCommitteesubjecttothe
confirmationofthePresidentorhisauthorizedrepresentativeasofficer/employee
whoisterminatedforcauseshallnotbeeligibletoreceiveanybenefitarisingfrom
her/hisemploymentwiththeBankortoterminationpay.
Itisunderstoodthattheterminationofyourserviceshallbewithoutprejudiceto
whateverlegalremedieswhichtheBankmayhavealreadyundertakenand/orwill
undertakeagainstyou.
Pleasebeguidedaccordingly.(Emphasissupplied) [8]
After several hearings, the Labor Arbiter held that Allied Bank had abused its
management prerogative in ordering the transfer of Galanida to its Bacolod and
Tagbilaran branches. In ruling that Galanidas refusal to transfer did not amount to
insubordination, the Labor Arbiter misquoted this Courts decision in Dosch v.
NLRC, thus:
[9]
Asageneralrule,therighttotransferorreassignanemployeeisrecognizedasan
employersexclusiverightandtheprerogativeofmanagement(AbbottLaboratories
vs.NLRC,154SCRA713[1987]).
Theexerciseofthisright,isnothowever,absolute.Ithascertainlimitations.Thus,
inHelmutDoschvs.NLRC,etal.123SCRA296(1983),theSupremeCourt,
ruled:
Whileitmaybetruethattherighttotransferorreassignanemployeeisan
employersexclusiverightandtheprerogativeofmanagement,suchrightisnot
absolute.Therightofanemployertofreelyselectordischargehisemployeeis
limitedbytheparamountpolicepowerxxxfortherelationsbetweencapitaland
laborarenotmerelycontractualbutimpressedwithpublicinterest.xxxAnd
neithercapitalnorlaborshallactoppressivelyagainsteachother.
Refusaltoobeyatransferordercannotbeconsideredinsubordinationwhere
employeecitedreasonforsaidrefusal,such(sic)asthatofbeingawayfromthe
family. (UnderscoringsuppliedbytheLaborArbiter)
[10]
The Labor Arbiter reasoned that Galanidas transfer was inconvenient and
prejudicial because Galanida would have to incur additional expenses for board,
lodging and travel. On the other hand, the Labor Arbiter held that Allied Bank failed to
show any business urgency that would justify the transfer.
The Labor Arbiter also gave credence to Galanidas claim that Allied Bank gave
Ms. Co special treatment. The Labor Arbiter stated that Allied Bank deliberately left
out Ms. Cos name from the list of accountants transferred to Cebu as contained in
Allied Banks letter dated 13 June 1994. However, Mr. Regidor Olveda, Allied Banks
Vice President for Operations Accounting, testified that the bank transferred Ms. Co
to the Tabunok, Cebu branch within the first half of 1994.
Still, the Labor Arbiter declined to award Galanida back wages because he was
not entirely free from blame. Since another bank had already employed Galanida,
the Labor Arbiter granted Galanida separation pay in lieu of reinstatement. The
dispositive portion of the Labor Arbiters Decision of 23 December 1997 provides:
WHEREFORE,premisesconsidered,judgmentisherebyrenderedordering
respondentAlliedBankingCorporationtopaycomplainanttheaggregatetotal
amountofThreeHundredTwentyFourThousandPesos(P324,000.00)
representingthefollowingawards:
a)SeparationpayforP272,000.00;
b)Quarterbonusfor1994P16,000.00;
c)13thmonthpayfor1994P16,000.00;
d)RefundofcontributiontoProvidentFundP20,000.00.
SOORDERED. [11]
On appeal, the NLRC likewise ruled that Allied Bank terminated Galanida without
just cause. The NLRC agreed that the transfer order was unreasonable and
unjustified, considering the family considerations mentioned by Galanida. The NLRC
characterized the transfer as a demotion since the Bacolod and Tagbilaran branches
were smaller than the Jakosalem branch, a regional office, and because the bank
wanted Galanida, an assistant manager, to replace an assistant accountant in the
Tagbilaran branch. The NLRC found unlawful discrimination since Allied Bank did not
transfer several junior accountants in Cebu. The NLRC also held that Allied Bank
gave Ms. Co special treatment by assigning her to Cebu even though she had
worked for the bank for less than two years.
The NLRC ruled that Galanidas termination was illegal for lack of due
process. The NLRC stated that Allied Bank did not conduct any hearing. The NLRC
declared that Allied Bank failed to send a termination notice, as required by law for a
valid termination. The Memo merely stated that Allied Bank would issue a notice of
termination, but the bank did not issue any notice.
The NLRC concluded that Allied Bank dismissed Galanida in bad faith,
tantamount to an unfair labor practice as the dismissal undermined Galanidas right
to security of tenure and equal protection of the laws. On these grounds, the NLRC
promulgated its Decision of 18 September 1998, the relevant portion of which states:
Inthisparticularcase,Weviewasimpractical,unrealisticandnolonger
advantageoustobothpartiestoorderreinstatementofthecomplainant.xxxFor
lackofsufficientbasis,Wedenytheclaimfor1994quarterbonus.Likewise,no
attorneysfeesisawardedascounselsforcomplainantappelleearefromtheCity
ProsecutorsOfficeofCebu.
WHEREFORE,premisesconsidered,thedecisionoftheLaborArbiter
datedDecember23,1997isherebyMODIFIEDbyincreasingtheawardof
separationpayandgrantinginadditiontheretobackwages,moralandexemplary
damages.Therespondentappellant,ALLIEDBANKINGCORPORATION,is
thusorderedtopaytohereincomplainantappellee,POTENCIANOL.
GALANIDA,thefollowingamounts:
a)P336,000.00,representingseparationpay
b)P833,600.00,representingbackwages
c)P5,333.23representingproportional199413thmonthpay
d)P20,000.00representingrefundofProvidentFundContribution
e)P50,000.00representingmoraldamages
f)P20,000.00representingexemplarydamages
===========
P1,264,933.33TOTALAWARD
Allotherclaimsaredismissedforlackofbasis.Theotherrespondentsaredropped
forlackofsufficientbasisthattheyactedinexcessoftheircorporatepowers.
SOORDERED. [12]
Allied Bank filed a motion for reconsideration which the NLRC denied in its
Resolution of 24 December 1998. [13]
Dissatisfied, Allied Bank filed a petition for review questioning the Decision and
Resolution of the NLRC before the Court of Appeals.
Citing Dosch v. NLRC, the Court of Appeals held that Galanidas refusal to
[14]
comply with the transfer orders did not warrant his dismissal. The appellate court
ruled that the transfer from a regional office to the smaller Bacolod or Tagbilaran
branches was effectively a demotion. The appellate court agreed that Allied Bank did
not afford Galanida procedural due process because there was no hearing and no
notice of termination. The Memo merely stated that the bank would issue a notice of
termination but there was no such notice.
The Court of Appeals affirmed the ruling of the NLRC in its Decision of 27 April
2000, thus:
WHEREFORE,forlackofmerit,thepetitionisDISMISSEDandtheassailed
DecisionofpublicrespondentNLRCisAFFIRMED.
SOORDERED. [15]
Allied Bank filed a motion for reconsideration which the appellate court denied in
its Resolution of 8 August 2000. [16]
On 26 April 2001, Allied Bank appealed the appellate courts decision and
resolution to the Supreme Court. Allied Bank prayed that the Supreme Court: (1)
issue a temporary restraining order or writ of preliminary injunction ex parte to
restrain the implementation or execution of the questioned Decision and Resolution;
(2) declare Galanidas termination as valid and legal; (3) set aside the Court of
Appeals Decision and Resolution; (4) make permanent the restraining order or
preliminary injunction; (5) order Galanida to pay the costs; and (6) order other
equitable reliefs.
The Issues
xxxHis[Galanidas]refusaltotransferfallswellwithintherulingoftheSupreme
CourtinHelmutDoschvs.NLRC,et.al.,123SCRA296(1983)quotedas
follows:
xxx
Refusaltoobeyatransferordercannotbeconsideredinsubordinationwhere
employeecitedreasonforsaidrefusal,suchasthatofbeingawayfromthefamily.
[18]
The memorandum prepared by Atty. Durano and, worse, the assailed Decision of
the Labor Arbiter, both misquoted the Supreme Courts ruling in Dosch v.
NLRC. The Court held in Dosch:
WecannotagreetoNorthwestssubmissionthatpetitionerwasguiltyof
disobedienceandinsubordinationwhichrespondentCommissionsustained.The
onlypieceofevidenceonwhichNorthwestbasesthechargeofcontumacious
refusalispetitionersletterdatedAugust28,1975toR.C.Jenkinswherein
petitioneracknowledgedreceiptoftheformersmemorandumdatedAugust18,
1975,appreciatedhispromotiontoDirectorofInternationalSalesbutatthesame
timeregrettedthatatthistimeforpersonalreasonsandreasonsofmyfamily,Iam
unabletoacceptthetransferfromthePhilippinesandthereafterexpressedhis
preferencetoremaininhisposition,saying:Iwould,therefore,prefertoremainin
mypositionofManagerPhilippinesuntilsuchtimethatmyservicesinthat
capacityarenolongerrequiredbyNorthwestAirlines.Fromthisevidence,We
cannotdiscerneventheslightesthintofdefiance,muchlessimplyinsubordination
onthepartofpetitioner. [19]
The phrase [r]efusal to obey a transfer order cannot be considered
insubordination where employee cited reason for said refusal, such as that of being
away from the family does not appear anywhere in the Dosch decision. Galanidas
counsel lifted the erroneous phrase from one of the italicized lines in
the syllabus of Dosch found in the Supreme Court Reports Annotated (SCRA).
The syllabus of cases in official or unofficial reports of Supreme Court decisions
or resolutions is not the work of the Court, nor does it state this Courts decision. The
syllabus is simply the work of the reporter who gives his understanding of the
decision. The reporter writes the syllabus for the convenience of lawyers in reading
the reports. A syllabus is not a part of the courts decision. A counsel should not cite
[20]
a syllabus in place of the carefully considered text in the decision of the Court.
In the present case, Labor Arbiter Almirante and Atty. Durano began by quoting
from Dosch, but substituted a portion of the decision with a headnote from the
SCRA syllabus, which they even underscored. In short, they deliberately made the
quote from the SCRA syllabus appear as the words of the Supreme Court. We
admonish them for what is at the least patent carelessness, if not an outright attempt
to mislead the parties and the courts taking cognizance of this case. Rule 10.02,
Canon 10 of the Code of Professional Responsibility mandates that a lawyer shall
not knowingly misquote or misrepresent the text of a decision or authority. It is the
duty of all officers of the court to cite the rulings and decisions of the Supreme Court
accurately.[21]
We accord great weight and even finality to the factual findings of the Court of
Appeals, particularly when they affirm the findings of the NLRC or the lower
courts. However, there are recognized exceptions to this rule. These exceptions are:
(1) when the findings are grounded on speculation, surmise and conjecture; (2) when
the inference made is manifestly mistaken, absurd or impossible; (3) when there is
grave abuse of discretion in the appreciation of facts; (4) when the factual findings of
the trial and appellate courts are conflicting; (5) when the Court of Appeals, in
making its findings, has gone beyond the issues of the case and such findings are
contrary to the admissions of both appellant and appellee; (6) when the judgment of
the appellate court is premised on a misapprehension of facts or when it has failed to
consider certain relevant facts which, if properly considered, will justify a different
conclusion; (7) when the findings of fact are conclusions without citation of specific
evidence on which they are based; and (8) when the findings of fact of the Court of
Appeals are premised on the absence of evidence but are contradicted by the
evidence on record. After a scrutiny of the records, we find that some of these
[22]
employee for valid reasons and according to the requirement of its business,
provided the transfer does not result in demotion in rank or diminution of the
employees salary, benefits and other privileges. In illegal dismissal cases, the
[24]
employer has the burden of showing that the transfer is not unnecessary,
inconvenient and prejudicial to the displaced employee. [25]
The constant transfer of bank officers and personnel with accounting
responsibilities from one branch to another is a standard practice of Allied Bank,
which has more than a hundred branches throughout the country. Allied Bank does
[26]
this primarily for internal control. It also enables bank employees to gain the
necessary experience for eventual promotion. The Bangko Sentral ng Pilipinas, in its
Manual of Regulations for Banks and Other Financial Intermediaries, requires the
[27]
rotation of these personnel. The Manual directs that the duties of personnel handling
cash, securities and bookkeeping records should be rotated and that such rotation
should be irregular, unannounced and long enough to permit disclosure of any
irregularities or manipulations.
[28]
The evidence on record contradicts the charge that Allied Bank discriminated
against Galanida and was in bad faith when it ordered his transfer. Allied Banks letter
of 13 June 1994 showed that at least 14 accounting officers and personnel from
[30]
Neither was Galanidas transfer in the nature of a demotion. Galanida did not
present evidence showing that the transfer would diminish his salary, benefits or
other privileges. Instead, Allied Banks letter of 13 June 1994 assured Galanida that
he would not suffer any reduction in rank or grade, and that the transfer would
involve the same rank, duties and obligations. Mr. Olveda explained this further in
the affidavit he submitted to the Labor Arbiter, thus:
19.Thereisnodemotioninposition/rankordiminutionofcomplainantssalary,
benefitsandotherprivilegesasthetransfer/assignmentofbranchofficersis
premisedontherole/functionsthattheywillassumeinthemanagementand
operationsofthebranch,asshownbelow:
(a)TheBranchAccountant,ascontrollerofthebranchisresponsiblefortheproper
dischargeofthefunctionsoftheaccountingsectionofthebranch,reviewof
documentation/properaccountingandcontroloftransaction.Assuch,the
accountingfunctionsinthebranchcanbeassumedbyanyofthefollowingofficers
withtherankof:SeniorManager/Acctg.;Manager/Acctg.;SeniorAsst.
Manager/Acctg.;Asst.Manager/Acctg.;AccountantorAsst.Accountant.
xxx
20.Thetransfer/assignmentofbranchofficerfromonebranch,toanother
branch/officeislateralinnatureandcarrieswithitthesameposition/rank,salary,
benefitsandotherprivileges.Theassignment/transferisfortheofficertoassume
thefunctionsrelativetohisjobandNOTtheposition/rankoftheofficertobe
replaced.
There is also no basis for the finding that Allied Bank was guilty of unfair labor
practice in dismissing Galanida. Unfair labor practices relate only to violations of the
constitutional right of workers and employees to self-organization and are limited to
[32]
the acts enumerated in Article 248 of the Labor Code, none of which applies to the
present case. There is no evidence that Galanida took part in forming a union, or
even that a union existed in Allied Bank.
This leaves the issue of whether Galanida could validly refuse the transfer orders
on the ground of parental obligations, additional expenses, and the anguish he would
suffer if assigned away from his family.
The Court has ruled on this issue before. In the case of Homeowners Savings
and Loan Association, Inc. v. NLRC, we held:
[33]
Theacceptabilityofthepropositionthattransfermadebyanemployerforanillicit
orunderhandedpurposei.e.,todefeatanemployeesrighttoselforganization,to
ridhimselfofanundesirableworker,ortopenalizeanemployeeforunion
activitiescannotbeupheldisselfevidentandcannotbegainsaid.Thedifficulty
liesinthesituationwherenosuchillicit,improperorunderhandedpurposecanbe
ascribedtotheemployer,theobjectiontothetransferbeinggroundedsolelyupon
thepersonalinconvenienceorhardshipthatwillbecausedtotheemployeeby
reasonofthetransfer.Whatthen?
ThiswastheverysamesituationwefacedinPhil.TelegraphandTelephone
Corp.v.Laplana.Inthatcase,theemployee,AliciaLaplana,wasacashieratthe
BaguioCityBranchofPT&Twhowasdirectedtotransfertothecompanysbranch
officeatLaoagCity.Inrefusingthetransfer,theemployeeaverredthatshehad
establishedBaguioCityasherpermanentresidenceandthatsuchtransferwill
involveadditionalexpensesonherpart,plusthefactthatanassignmenttoafar
placewillbeabigsacrificeforherasshewillbekeptawayfromherfamilywhich
mightadverselyaffectherefficiency.Inrulingfortheemployer,theCourtupheld
thetransferfromonecitytoanotherwithinthecountryasvalidaslongasthereis
nobadfaithonthepartoftheemployer.Weheldthen:
CertainlytheCourtcannotacceptthepropositionthatwhenanemployeeopposes
hisemployersdecisiontotransferhimtoanotherworkplace,therebeingnobad
faithorunderhandedmotivesonthepartofeitherparty,itistheemployeeswishes
thatshouldbemadetoprevail.
basis for the charge of insubordination a letter from Dosch in which the Court found
not even the slightest hint of defiance, much less xxx insubordination. [36]
from Cebu City to Bacolod City or from Cebu City to Tagbilaran City does not exceed
the distance from Baguio City to Laoag City or from Baguio City to Manila, which the
Court considered a reasonable distance in PT&T v. Laplana. [38]
against employers for rules or orders that they regard as unjust or illegal. However,
until and unless these rules or orders are declared illegal or improper by competent
authority, the employees ignore or disobey them at their peril.
For Galanidas continued refusal to obey Allied Banks transfer orders, we hold that
[40]
the bank dismissed Galanida for just cause in accordance with Article 282 (a) of the
Labor Code. Galanida is thus not entitled to reinstatement or to separation pay.
[41]
ForterminationofemploymentbasedonjustcausesasdefinedinArticle282of
theLaborCode:
(i) A written notice served on the employee specifying the ground or grounds of
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 circumstances, grounds have been established to
justify his termination.
The first written notice was embodied in Allied Banks letter of 13 June 1994. The
first notice required Galanida to explain why no disciplinary action should be taken
against him for his refusal to comply with the transfer orders.
On the requirement of a hearing, this Court has held that the essence of due
process is simply an opportunity to be heard. An actual hearing is not necessary.
[42]
The exchange of several letters, in which Galanidas wife, a lawyer with the City
Prosecutors Office, assisted him, gave Galanida an opportunity to respond to the
charges against him.
The remaining issue is whether the Memo dated 8 September 1994 sent to
Galanida constitutes the written notice of termination required by the Omnibus Rules.
In finding that it did not, the Court of Appeals and the NLRC cited Allied Banks rule
on dismissals, quoted in the Memo, that, Notice of termination shall be issued by the
Investigation Committee subject to the confirmation of the President or his
authorized representative. The appellate court and NLRC held that Allied Bank did
[43]
not send any notice of termination to Galanida. The Memo, with the heading Transfer
and Reassignment, was not the termination notice required by law.
We do not agree.
Even a cursory reading of the Memo will show that it unequivocally informed
Galanida of Allied Banks decision to dismiss him. The statement, please be informed
that the Bank has terminated your services effective September 1, 1994 and
considered whatever benefit, if any, that you are entitled [to] as forfeited xxx is
[44]
plainly worded and needs no interpretation. The Memo also discussed the findings of
the Investigation Committee that served as grounds for Galanidas dismissal. The
Memo referred to Galanidas open defiance and refusal to transfer first to
the Bacolod City branch and then to the Tagbilaran City branch. The Memo also
mentioned his continued refusal to report for work despite the denial of his
application for additional vacation leave. The Memo also refuted Galanidas charges
[45]
of discrimination and demotion, and concluded that he had violated Article XII of the
banks Employee Discipline Policy and Procedure.
The Memo, although captioned Transfer and Reassignment, did not preclude it
from being a notice of termination. The Court has held that the nature of an
instrument is characterized not by the title given to it but by its body and contents.
Moreover, it appears that Galanida himself regarded the Memo as a notice of
[46]
Theproceedingsmaybecapsulizedasfollows:
1.OnMarch13,1994 PrivateRespondentAppelleefiledbeforetheRegionVII
[47]
ArbitrationBranchaComplaintforConstructiveDismissal.Acopyofthe
ComplaintisattachedtothePetitionasAnnexH;
xxx
5.OnSeptember8,1994,PetitionerAppellantissuedhimaLetterof
Termination.AcopyofsaidletterisattachedtothePetitionasAnnexN;
6.PrivateRespondentAppelleefiledanAmended/SupplementalComplaint
whereinheallegedillegaldismissal.AcopyoftheAmended/Supplemental
ComplaintisattachedtothePetitionasAnnexO;xxx (Emphasissupplied)
[48]
Galanida had understood the Memo to mean that Allied Bank had terminated his
services.
The Memo complied with Allied Banks internal rules which required the banks
President or his authorized representative to confirm the notice of termination. The
banks Vice-President for Personnel, as the head of the department that handles the
movement of personnel within Allied Bank, can certainly represent the bank
president in cases involving the dismissal of employees.
Nevertheless, we agree that the Memo suffered from certain errors. Although the
Memo stated that Allied Bank terminated Galanidas services as of 1 September
1994, the Memo bore the date 8 September 1994. More importantly, Galanida only
received a copy of the Memo on 5 October 1994, or more than a month after the
supposed date of his dismissal. To be effective, a written notice of termination must
be served on the employee. Allied Bank could not terminate Galanida on 1
[51]
September 1994 because he had not received as of that date the notice of Allied
Banks decision to dismiss him. Galanidas dismissal could only take effect on 5
October 1994, upon his receipt of the Memo. For this reason, Galanida is entitled to
backwages for the period from 1 September 1994 to 4 October 1994.
Under the circumstances, we also find an award of P10,000 in nominal damages
proper. Courts award nominal damages to recognize or vindicate the right of a
person that another has violated. The law entitles Galanida to receive timely notice
[52]
of Allied Banks decision to dismiss him. Allied Bank should have exercised more
care in issuing the notice of termination.
WHEREFORE, the Decision of 27 April 2000 of the Court of Appeals in CA-G.R.
SP No. 51451 upholding the Decision of 18 September 1998 of the NLRC in NLRC
Case No. V-000180-98 is AFFIRMED, with the following MODIFICATIONS:
1) The awards of separation pay, moral damages and exemplary damages are
hereby deleted for lack of basis;
2) Reducing the award of backwages to cover only the period from 1 September
1994 to 4 October 1994; and
3) Awarding nominal damages to private respondent for P10,000.
This case is REMANDED to the Labor Arbiter for the computation, within thirty
(30) days from receipt of this Decision, of the backwages, inclusive of allowances
and other benefits, due to Potenciano L. Galanida for the time his dismissal was
ineffectual from 1 September 1994 until 4 October 1994.
Labor Arbiter Dominador A. Almirante and Atty. Loreto M. Durano
are ADMONISHED to be more careful in citing the decisions of the Supreme Court in
the future.
SO ORDERED.