Republic of the Philippines

Court of Appeals
Manila

SPECIAL THIRTEENTH DIVISION

VXI GLOBAL HOLDINGS B.V. CA-G.R. SP No. 158378

(PHILIPPINES), ROY DENNIS
MANALILI, ELJAY DELOS CRUZ, S.C., Chairperson,
LOPEZ, J.Y. and
REYES AND CHRISTIAN *ONG, W.S. JJ.

HALAL,
Petitioners,

versus

NATIONAL LABOR RELATIONS

COMMISSION (SIXTH Promulgated: November 27, 2019
DIVISION) AND JETHRO
ACOSTA PASTORPIDE, _____________________
Respondents.

x------------------------------------------------x

DECISION

LOPEZ, J.Y., J.:

Before Us is a Petition for Certiorari under Rule 65 1 from a

Decision dated 25 July 20182 of the National Labor Relations
Commission, Sixth Division, in NLRC LAC No. 06-002027-18 (NLRC
Case No. 10-13022-16), the fallo of which states that:

WHEREFORE, the respondents' Appeal is hereby

DENIED. The Decision dated February 27, 2018 rendered
by Labor Arbiter Raul M. Luna declaring complainant's
dismissal from employment illegal is hereby AFFIRMED.
* New third member per Office Order No. 560-19-FLP dated November 07, 2019.
1 Rollo, pp. 10-49
2 Records, pp. 230-234
CA-G.R. SP No. 156674 Page 2 of 14
DECISION

Respondent company is hereby ordered to pay complainant

backwages and separation pay tentatively computed as
follows:

1. Backwages – Php464,130.30; and,

2. Separation pay – Php62,050.00.

Respondent company is likewise ordered to pay

attorney's fees (10%) in the amount of P52,618.03.

SO ORDERED.3

The Order dated 07 September 20184 denying the Motion for

Reconsideration filed thereon is likewise being assailed.

Antecedent Facts:

Petitioner VXI Global Holdings Phils. (VXI Global), the Philippine

arm of VXI Global holding B.V., is a corporation duly licensed with the
Securities and Exchange Commission to conduct business process
outsourcing (BPO) and customer relations operations in the Philippines.

Private Resident Jethro Acosta Pastorpide (Pastorpide) was hired

by VXI Global to work as an Account Associate on 03 June 2015. 5 He
was assigned to one of its clients, AT&T Blue with a monthly salary of
Php20,000.00, Night Shift Differential pay of 10% and Mid-Shift
Allowance of 5%. In November 2015, or after working with VXI Global
for five months, he became a regular employee.

On 16 August 2016, Pastorpide received a Notice to Explain6 from

his immediate supervisor, Roland Anton Valentino (Valentino). He was
asked to address several instances of “Call Avoidance” found in his
computer system activity. “Call avoidance” is a form of abuse or
inappropriate use of ACW/AUX/ AVAIL Mode for unauthorized break,
calling or going back at the bottom of the queue of operators which is a
violation of Corrective Action Policy and Procedures (CAPP) III, Section
17 of VXI Global.7 These infractions were allegedly committed on July 22
3Rollo, pp. 37-50
4Rollo, pp. 51-53
5 Rollo, pp. 114-118
6 Dated 02 August 2016
7 Infractions Against Diligence, Productivity and Efficiency (Negligence and Neglect of Duties).

Any act may be construed as Call Avoidance such as, but not limited to: xxx Abuse of inappropriate use
of ACW/AUX/AVAIL
CA-G.R. SP No. 156674 Page 3 of 14
DECISION

to August 01 of the same year and were all discovered during the
company audit.

The Notice to Explain was tendered by Valentino to Pastorpide but

the latter refused to receive it.8

A second Notice to Explain charging Pastorpide with serious

misconduct was issued to Pastorpide on the same day. This notice
addressed two separate e-mails Pastorpide that allegedly sent9 to Allen
Chan (Chan), an AT&T Blue Vendor Sales Manager and its Client-
Representative to VXI Global. The first letter10 listed his accomplishments
in the company with a reminder to Chan that he [Pastorpide] was still
waiting for his promotion which the Associate Director of AT&T Blue,
Christian Halal (Halal), supposedly promised him. Pastorpide then went
on to accuse some AT&T managers of being biased against him because
he was competent and knowledgeable in his work and also because of his
gender preference. Pastorpide then proceeded to tell Chan that if he will
not be promoted, he will ask for a transfer to the AMEX accounts.
Pastorpide added that if his request to transfer account will not be granted,
he will resign from his job which he alleged would be a big loss for AT&T
Blue.

The second e-mail was a private letter to Chan over their alleged
special relationship and Pastorpide's frustrations over it.11 Chan sent VXI
Global a copy of this email with a specific request to remove Pastorpide
from the AT&T account.12 This prompted VXI Global to make an inquiry
and it initially determined that the letters Pastorpide sent to Chan were in
violation of Rule I, Section 24,13 of the CAPP. Thus, Pastorpide was given
the second Notice to Explain which he also refused to receive. He also did
not submit any letter-reply to the two Notices to Explain.14

Pending administrative proceedings, Pastorpide was placed on

preventive suspension on 20 August 2016.15 On 02 September, he
received a letter from VXI Global informing him that an administrative
hearing will be conducted to hear his side.16

8 Witness Belinda Cortes

9 03 August 2016 and 15 August 2016
10 Rollo, pp. 100-101
11 Rollo, p. 166
12 Ibid.
13 Rule I – Infractions against Proper Behavior, Decency and Morality (Misconduct) - xxx

Section 24 – Negatively portraying the Company and/or its client through inappropriate comments about
partners, processes, procedures, products or property.
14 Witness Belinda Cortes
15 Rollo, p. 85
16 Rollo, p. 86
CA-G.R. SP No. 156674 Page 4 of 14
DECISION

During the administrative hearing on 07 September 2016,

Pastorpide stated that he did not sign any document concerning his
supposed infractions and he surmised that the other agents beside him
may have hacked his equipment. Believing that they were only envious
because he was knowledgeable in his work, Pastorpide explained that he
did not do anything to stop them because he knew that they were also
being recorded by CCTV.17

In a Notice of Decision dated 15 September 2016, VXI Global

informed Pastorpide for the two inappropriate emails he sent to Chan, he
was meted a final warning.

Unfortunately, his violation of Section 17 (o), Rule III of VXI

Global's Corrective Action Policy and Procedure 18 [call avoidance] was
categorized as a “serious misconduct”19 which is punishable by dismissal
on the first offense.20 As a result, Pastorpide's services were terminated
effective 17 September 2016.21 This Notice of Decision was signed by
Private Respondent Roy Dennis Manalili (Manalili).22

Protesting his dismissal, Pastorpide filed a Complaint for Illegal

Dismissal; Illegal Suspension; Sexual Harassment/ Discrimination; Moral/
Exemplary Damages and Attorney's Fees before the Labor Arbiter of the
National Labor Relations Commission- National Capital Region (Labor
Arbiter). He asked for full backwages from the time of preventive
suspension, moral damages, exemplary damages and attorney's fees.

In his Position Paper,23 Pastorpide accused Halal of promising him

a promotion for a position which, at that time, was still going to be created
and approved by the Board of Directors of VXI Global. However,
Pastorpide allegedly overheard Halal tell some senior employees that
Pastorpide's promotion was overlooked. This allegedly devastated
Pastorpide but he still went on with his work despite hearing rumors that
the real reason that he was not promoted was because of his gender
preference.

As to Chan, Pastorpide disclosed that Chan was the only one nice to
him at the office because he would always greet Pastorpide with a
17Rollo, pp. 123-128
18Rollo, pp. 11 and 151
19 Infractions Against Diligence, Productivity and Efficiency (Negligence and Neglect of Duties).

Any act may be construed as Call Avoidance such as, but not limited to: xxx

o) Abuse or inappropriate use of CW/AUX/AVAIL mode for unauthorized break, calling or going
back to the bottom of the queue. Rollo, p. 152
20 Rollo, p. 146
21 Rollo, pp. 92-94
22 Rollo, p. 94
23 Rollo, pp. 103-113
CA-G.R. SP No. 156674 Page 5 of 14
DECISION

glowing smile and iridescent eyes. It was even Chan who told Pastorpide's
officemates to stop bullying him, saying that if Pastorpide left the
company, he would pull out the AT&T account from VXI Global.

Pastorpide then admitted to sending the two letters to Chan using

his personal email address. The first was to complain that he was being
singled out for promotion again, but Chan did not send any reply. In his
second letter to Chan, Pastorpide expressed his love for him.

Believing that the letters were very personal to him and Chan with
whom he claimed to share a special relationship with, Pastorpide was
surprised when he was asked to explain his alleged misconduct in sending
the letters. He claimed that Chan did not even file an incident report but
VXI Global still faulted him for the private letters. Because the contents
of his second letter became known, Pastorpide lamented that he was
humiliated in the office.

As to the accusations of infractions in his work, Pastorpide insisted

that his co-workers were intent on sabotaging him. They had been
bullying him for some time that he even filed an Incident Report for
Sexual Harassment in 14 October 2016.24

Alleging that the circumstances of his dismissal from service

blatantly showed that VXI Global terminated him out of whims and
caprices primarily because of his gender preference, Pastorpide contended
that while misconduct was committed when he sent those letters to Chan,
his acts could not be construed as tantamount to dismissal. He also points
out that the Notice of Decision did not even show the cause for his
termination.

In its Reply, VXI Global asserted that Pastorpide was validly

dismissed because he was proven to have willfully violated VXI Global's
policies on Infractions Against Diligence, Productivity and Efficiency
(Negligence and Neglect of Duties) and Infractions against Proper
Behavior, Decency and Morality (Misconduct).

VXI Global likewise insisted that both procedural and substantive

rules were observed in the dismissal of Pastorpide. It pointed out that
there was compliance with the two-notice rule via the two Notices to
Explain and the Notice of Dismissal, and that a hearing was even
conducted so he could properly defend himself. It also noted that contrary
to Pastorpide's assertion that Chan did not file an incident report which

24 Rollo, pp. 120-121

CA-G.R. SP No. 156674 Page 6 of 14
DECISION

would supposedly trigger an investigation, such report was not a requisite

for the issuance of a notice to explain.

VXI Global also belied Pastorpide's accusation that he was being

singled out since the Notice to Explain was issued together with the
company's Workforce Audit Report detailing the instances of call
avoidance in the company.

In its Decision dated 27 February 2018, the Labor Arbiter ruled that
Pastorpide was illegally dismissed from service. VXI Global was directed
to pay Pastorpide the amount of Php485,867.17 as separation pay
equivalent to one month pay for every year of service with full backwages
from date of dismissal, plus attorney's fees. 25 It explained that the
dismissal was without just cause because VXI failed to discharge the
burden that Pastorpide committed call avoidance on July 22-August 1,
2016. Pointing out that while there was indeed a record of call avoidance,
the Labor Arbiter observed that there was no proof that it was Pastorpide
himself who committed those acts and VXI Global even did not present
any CCTV footage despite Pastorpide's request. Pastopide's claims for
damages were, however, denied for lack of sufficient basis.26

VXI Global filed an Appeal before the National Labor Relations

Commission, Sixth Division (NLRC) which rendered the herein assailed
Decision dated 25 July 2018 affirming the Labor Arbiter Decision dated
27 February 2018.

Unrelenting, VXI Global filed this instant Petition for Certiorari

alleging grave abuse of discretion amounting to lack or excess in the
exercise of discretion on the part of the NLRC.

Assigned Errors:

I.
PUBLIC RESPONDENT ERRED IN FINDING
NO COGENT REASON TO OVERTURN THE
JUDGMENT OF THE LABOR ARBITER IN
THE LATTER'S DECISION FINDING THE
PRIVATE RESPONDENT TO HAVE BEEN
ILLEGALLY DISMISSED; AND,

25 Computation. Rollo, p. 198

26 Rollo, pp. 190-197
CA-G.R. SP No. 156674 Page 7 of 14
DECISION

II.
THE PUBLIC RESPONDENT COMMITTED
GRAVE ABUSE OF DISCRETION
AMOUNTING TO LACK OR EXCESS OF
JURISDICTION WHEN IT DENIED
PETITIONERS' MOTION FOR
RECONSIDERATION AND DISREGARDED
THE ARGUMENTS LAID DOWN THEREIN.

Ruling:

VXI Global and the other private petitioners (collectively,

Petitioners) plead for a revisit of the evidence it submitted which they
maintain would show that there was just cause in the termination of
Pastorpide's services. Contending that it was able to discharge the burden
of proof needed to justify Pastorpide's dismissal, Petitioners point to the
Audit Report of the Workforce Team which indicated the separate
instances of call avoidance; the discrepancy between the date of Incident
Report alluded to by Pastorpide as proof that he was being sabotaged and
the dates indicated in his Notice to Explain; and, to the obvious lack of
any request for a CCTV footage on the part of Pastorpide.

The Petition for Certiorari is impressed with merit.

The just causes for the dismissal of an employee are the following:

1) Serious misconduct or willful disobedience by the

employee;
2) Gross and habitual neglect by the employee of his duties;
3) Fraud or willful breach by the employee of the trust
reposed in him by his employer or duly authorized
representative;
4) Commission of crime or offense against the person of the
employer or any immediate member of his/her family or
his/her duly authorized representative;
5) Other causes analogous to the foregoing.27

In illegal dismissal, the burden to establish the just cause of

termination, rests on the employer, and there are two requisites which
must concur for the valid termination of an employee's services. These
are:
27 Article 297, Labor Code of the Philippines
CA-G.R. SP No. 156674 Page 8 of 14
DECISION

1) the dismissal must be for any of the causes provided for

in Article 282 of the Labor Code; and,
2) the employee must be afforded an opportunity to be
heard and defend himself.28

In the case at bar, Respondent was dismissed for having been found
guilty of abuse or inappropriate use of the CW/AUX/AVAIL mode in the
system usually used for unauthorized break, calling or going back to the
bottom of the queue, a practice commonly known as call avoidance. In
VXI Global's Corrective Action Policy and Procedure (CAPP), Call
avoidance is listed as a serious infraction, to wit:

Rule III Infractions Against Diligence, Productivity and

Efficiency (Negligence and Neglect of Duties).

Section 17- Any act may be construed as Call Avoidance

such as, but not limited to: xxx

o) Abuse or inappropriate use of

CW/AUX/AVAIL mode for unauthorized
break, calling or going back to the bottom of
the queue.29

To prove Pastorpide's transgressions before the Labor Arbiter,

Petitioners presented the Workforce Audit Report which unquestionably
shows several instances of call avoidance activities on July 22-August 01,
2016.30 Seeing each individual act as a serious infraction punishable with
the penalty of dismissal at the first instance, 31 Petitioners explained that
the management asked Pastorpide to address the records of call avoidance
via the Notices to Explain. Sadly, during the administrative hearing,
Pastorpide stubbornly refused to address the call avoidance incidents and
simply blamed them on his still unidentified co-workers who he claimed
were intent on sabotaging his career.

In response to Petitioners' contention, Pastorpide presented two

Incident Reports. The first report contained specific accusations of
bullying by his officemates because he felt alluded to when his co-
workers uttered the words “bakla” and “bayot”32 while looking at him.
The second report spoke about an episode on 14 October 2015 when after
28 Fujitsu Computer Products Corporation of the Philippines vs. CA, G.R. No. 158232, 31 March
2005
29 Rollo, p. 152
30 Rollo, pp. 95-98
31 Rollo, p. 146
32 Received by Lorgel Apostol. Rollo,p. 120
CA-G.R. SP No. 156674 Page 9 of 14
DECISION

taking his lunch break, Pastorpide allegedly found his computer with a
pop-up which may indicate an “active status” when in fact, he was only
coming back. He grew concerned because he had logged-out before
leaving his area and such an incident could give him a record of violating
the company's Security Policy Guidelines. Pastorpide then explained that
he did not give any person his password pursuant to company rules and
that to his knowledge, only the information technology personnel are
authorized to monitor the computer activities of AT&T Blue agents.33

In taking Pastorpide's view, Public Respondent specially mentioned

that it could not simply disregard the claim of Pastorpide that his
computer was not hacked because Petitioners failed to resolve the hacking
incident subject of the 14 October 2014 Incident Report. Hence, it ruled
that Petitioners failed to establish that it was Pastorpide himself who was
actually operating his system when he allegedly took the unauthorized
breaks on July 22-August 01, 2016.

Unfortunately, it cannot be said that there was no action on the 14

October 2016 Incident Report since the records on hand disclose that it
was explained to Pastorpide that it was “a common incident in AT&T
Blue where accounts automatically [pop-up] on their screen”. He was also
assured that while there was no trace of any hacking, a technician would
still check if there was any recorded activity on this computer while he
was away.34

We also note that the obvious reliance on alleged lack of action on

the 14 October 2015 Incident Report is misplaced. The Incident Report for
14 October 2015 does not in any way explain why there were records of
call avoidance on July 22-August 01, 2016. While Pastorpide vehemently
maintains that Petitioner Global Holdings is in possession of CCTV
footages which would prove his defense of sabotage, there is absolutely
no record of any request for Petitioner to provide copies to Pastorpide.
Pastorpide asserted that the video recordings would support his defense of
sabotage and that the Petitioners' failure to produce them should be taken
against VXI Global. However, this defense falls short in view of the
glaring report made by the Workforce Audit Team35 which had as its basis
a computer-generated recording. Despite Pastorpide's claim of sabotage,
the records do not show any irregularities except for traces of the call
avoidance which occurred while Pastorpide was logged into the system.

We particularly note Petitioners' contention in their Memorandum

of Appeal before the NLRC, thus:
33 Rollo, p. 121
34 Rollo, p. 161
35 Rollo, pp. 96-98
CA-G.R. SP No. 156674 Page 10 of 14
DECISION

39. Fourth, the series of instances of Call Avoidance

cannot be made to be a result of any system issue as AU
toggling involves a mechanical act of pressing number keys
before a physical phone so that calls going to
Complainant's station will be delayed or, worse, avoided.
Prior to taking calls, Complainant needs to input his log in
ID and distinct password, which is only and exclusively
known to him, in order to access the system and receive
calls.

40. Fifth, respondent VXI has proven by substantial

evidence that the series of AUX toggling instances from
July 22, 2016- August 1, 2016 was traced and established to
have been committed by herein Complainant using his
AVAYA phone log in credentials. Complainant cannot
escape liability by merely alleging that it could have been
done by somebody else other than him. It was also proven
that he was at his PC workstation taking calls [within] those
time stamps (July 22, 2016- August 1, 2016). Logic and
human experience dictate that since the phone is within his
proximity, he would promptly know if somebody else is
pressing any key on his phone.36

Between Pastorpide's bare denials and unfounded accusations and

the irregularities flagged by the system on the subject dates, the latter
should clearly prevail. Moreover, the Workforce Audit was not conducted
to single him out as he claims, but it was held as part of regular company
procedure.

In the case of Malabago vs. NLRC,37 the Supreme Court explained

the roles of both the employer and employee in the workplace in this wise:

We have held that it is the employer's prerogative to

prescribe reasonable rules and regulations necessary or
proper for the conduct of its business or concern, to provide
certain disciplinary measures to implement said rules and to
assure that the same be complied with. At the same time, it
is the duty of the employee to obey all reasonable rules,
orders, and instructions of the employer, and willful or
intentional disobedience thereto, as a general rule, justifies
rescission of the contract of service and the peremptory
dismissal of the employee.

36
Rollo, p. 210
37G.R. No. 165465, 13 September 2006; Gustilo vs. Wyeth Philippines, Inc., G.R. No. 149629,
04 October 2004
CA-G.R. SP No. 156674 Page 11 of 14
DECISION

Having found Pastorpide of willfully violating the CAPP provisions

by resorting to call avoidance, Petitioners had to assert its prerogative to
terminate the services of Pastorpide so as not to affect its business
productivity. There is no question that as employer, Petitioners have the
inherent right to discipline, including dismissing, its employees for just
causes.38 Pastorpide's actions were in clear violation of the CAPP and
Petitioners simply acted pursuant to Article 282 of the Labor Code which
states that willful disobedience by the employee of the lawful orders of his
employer or representative in connection with his work is a ground for
terminating an employment.39

In an effort to avoid having to explain the incidents of call

avoidance, Pastorpide tries to blame his misfortune on his co-workers and
employers who he claims were jealous of him and biased because of his
sexual orientation. Lamentably, Pastorpide neglected to provide any other
proof to support such contention. Even his explanation that he left it to the
CCTV to record the times when his co-workers were allegedly toggling
on his equipment is inconsistent with the fact that he did take steps against
the alleged bullying via his two Incident Reports. Pastorpide even went as
far as to put on record that Chan himself instructed the other employees to
stop harassing him at the risk of VXI Global losing the AT&T account.
The records of the case likewise disclose that Pastorpide had never been
shy about expressing his emotions and that, after filing the complaint for
illegal dismissal, he even went to the extreme act of sending letters which
threatened his co-workers with imprisonment and the company of
closure.40

Compliance with the

Two-Notice Rule

In cases of illegal dismissal, the employer must comply with the

two-notice rule, as mandated under the Implementing Rules of Book VI of
the Labor Code.41 The employer must serve the erring employee a first
38 Holcim Philippines Invc vs. Obra, G.R. No. 220998, 08 August 2016; Associated Labor Unions-
TUCP vs. NLRC, G.R. No. 120450, 10 February 1999
39 Picar vs. Shangri-La Hotel, G.R. No. 146367, 14 December 2005
40 Rollo, pp. 233-253
41 For termination of employment based on just causes as defined in Article 282 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 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.
(AMENDING THE RULES IMPLEMENTING BOOKS III AND VI OF THE LABOR CODE AS AMENDED,
CA-G.R. SP No. 156674 Page 12 of 14
DECISION

notice which details the ground/s for termination, giving the employee a
reasonable opportunity to explain his side. In practice, this is commonly
referred to as the notice to explain (NTE).42 The second notice pertains to
the written notice of termination indicating that upon due consideration of
all circumstances, the employer has decided to dismiss the employee.43

A reading of the Notice to Explain subject of the dismissal 44 shows

that it contained details such as the date of the [suspected] violation (22
July 2016), the date it was discovered (02 August 2016), its level of
infraction (Serious Infraction) and the corresponding corrective action
(Notice of Dismissal). It also specifically stated that the offense was for
“Abuse or inappropriate use of ACW/AUX/AVAIL mode for unauthorized
break, calling, or going back to the bottom of the queue”, and the
provision allegedly violated in the Corrective Action Policy and Procedure
(Section 17 under CAPP Rule III- Infractions Against Diligence
Productivity and Efficiency- Negligence and Neglect of Duties). 45. It also
included a statement that Pastorpide may also be dismissed pursuant to
Article 282 of the Labor Code, as amended.46 Finally, while the Notice to
Explain directed Pastorpide to submit his written explanation within the
period provided therein, it still assured Pastorpide that the said Notice to
Explain did not conclusively imply his guilt. All these prove that
Pastorpide was properly informed of the accusations against him and the
steps he needed to clear his name.

Per his admission, Pastorpide refused to accept any of the two

Notices to Explain which were served to him with a witness present.
Consequently, he also did not give any written explanation.

As to the Notice of Dismissal, it was established to have been given

to Pastorpide after the administrative hearing. It clearly stated thereon that
the investigation found Pastorpide guilty of violating CAP Rule III,47 thus:

– Based on the NTE, employee was found to have

inappropriately used several AUXs so he can go back to
the bottom of the queue. In the report sent by Workforce
Department, he used inappropriate AUXs on July 22, 25,
29 and August 1, 2016;
Department Order No. 010-97 [1997], Art. III).
42 Pardilllo vs. Bandojo, G.R. No. 224854, 27 March 2019
43 King of Kings Transport, Inc. vs. Mamac, G.R. No. 166208, 29 June 2007
44 Rollo, pp. 81-82
45 Rollo, p. 81
46 Just causes for dismissal: 1) Serious misconduct or willful disobedience by the employee; 2)

Gross and habitual neglect by the employee of his duties; 3) Fraud or willful breach by the employee of
the trust reposed in him by his employer or duly authorized representative; 4) Commission of crime or
offense against the person of the employer or any immediate member of his/her family or his/her duly
authorized representative; 5) Other causes analogous to the foregoing.
47 Rollo, p. 94
CA-G.R. SP No. 156674 Page 13 of 14
DECISION

– It is shown on the respondent's AUX activities that he

used AUX948 which should only be used by an associate
if there's a system issue and AUX 649 which should not
be used by any associates. It can also be observed that
after using the inappropriate AUX, he will be placed on
AVAIL mode which means that he was not receiving any
calls and he went back to the bottom of the queue;
– It was confirmed by Operations hat he did not report any
system issue to his supervisor;
– Neglect of duties imply bad faith of the employee in
failing to perform his job. Whenever an employee used
inappropriate AUXs, he will go back to the bottom of
the queue and will not be able to receive customer calls
which is his main duty as an account associate;
– It was also confirmed that no single instance of system
issue was reported by the agent to his supervisor;
– It is also pertinent to note that this is not a single act of
Call Avoidance but employee committed several
instances f abuse of AUX for a number of seven days;
– Based on the [evidence] at hand, it was established that
Mr. Pastorpide committed Call Avoidance specifically,
abuse or inappropriate use of ACW/AUX AVAIL mode
for unauthorized break, calling or going back to the
bottom of the queue and termination of employment
shall then be issued.50

Compliance with the requirement

of Administrative Hearing

As to the second requirement, it must be remembered that the

essence of due process in administrative proceedings is an opportunity to
explain one's side or an opportunity to seek reconsideration of the action
or ruling complained of.51 Before an employee can be dismissed, the
Labor Code requires the employer to furnish the employee a written
notice containing a statement of the causes for termination and to afford
said employee ample opportunity to be heard and to defend himself with
the assistance of his representative if he so desires. If, after investigation,
the employer finally decides to terminate the services of the employee, the
employer must notify the worker in writing of the decision to dismiss him,
stating clearly the reasons therefor.

48 System Issue. Rollo, p. 65

49 Used only when there is a plotted team hurdle or coaching. Rollo, p. 65
50 Rollo, p. 93
51 Pizza Hut/ Progressive Development Corp. vs. NLRC, G.R. No. 117059, 29 January 1996
CA-G.R. SP No. 156674 Page 14 of 14
DECISION

During the administrative hearing on 07 September 2016,

Pastorpide was able to ventilate his side by raising his defenses of
sabotage and discrimination, albeit choosing to answer only a few of the
questions posed to him. As a consequence, the company found him liable
for serious misconduct thereby warranting the imposition of the penalty of
dismissal.

WHEREFORE, premises considered, the Petition for Certiorari is

hereby GRANTED. The Decision dated 25 July 2018 52 and the Order
dated 07 September 201853 of the National Labor Relations Commission,
Sixth Division, in NLRC LAC No. 06-002027-18 (NLRC Case No. 10-
13022-16) are REVERSED AND SET ASIDE and Private Respondent
Jethro Acosta Pastorpide is declared to have been validly dismissed from
service.

SO ORDERED.

JHOSEP Y. LOPEZ
Associate Justice

WE CONCUR:

STEPHEN C. CRUZ WALTER S. ONG

Associate Justice Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, it is hereby

certified that the conclusions in the above decision were reached in
consultation before the case was assigned to the writer of the opinion of
the Court.

STEPHEN C. CRUZ
Associate Justice
Chairperson, Special Thirteenth Division
52 Records, pp. 230-234
53 Rollo, pp. 51-53