Abbott Laboratories, Phils. v. Alcaraz

EN BANC
[G.R. No. 192571. July 23, 2013.]
ABBOTT LABORATORIES, PHILIPPINES, CECILLE A.

TERRIBLE, EDWIN D. FEIST, MARIA OLIVIA T. YABUT-MISA,
TERESITA C. BERNARDO, AND ALLAN G. ALMAZAR,
petitioners, vs. PEARLIE ANN F. ALCARAZ, respondent.
DECISION
PERLAS-BERNABE, J : p
Assailed in this petition for review on certiorari 1 are the Decision 2 dated
December 10, 2009 and Resolution 3 dated June 9, 2010 of the Court of Appeals
(CA) in CA-G.R. SP No. 101045 which pronounced that the National Labor
Relations Commission (NLRC) did not gravely abuse its discretion when it ruled
that respondent Pearlie Ann F. Alcaraz (Alcaraz) was illegally dismissed from
her employment.
The Facts
On June 27, 2004, petitioner Abbott Laboratories, Philippines (Abbott)

caused the publication in a major broadsheet newspaper of its need for a
Medical and Regulatory Affairs Manager (Regulatory Affairs Manager) who
would: (a) be responsible for drug safety surveillance operations, staffing, and
budget; (b) lead the development and implementation of standard operating
procedures/policies for drug safety surveillance and vigilance; and (c) act as the
primary interface with internal and external customers regarding safety
operations and queries. 4 Alcaraz — who was then a Regulatory Affairs and
Information Manager at Aventis Pasteur Philippines, Incorporated (another
pharmaceutical company like Abbott) — showed interest and submitted her
application on October 4, 2004. 5
On December 7, 2004, Abbott formally offered Alcaraz the above-
mentioned position which was an item under the company's Hospira Affiliate
Local Surveillance Unit (ALSU) department. 6 In Abbott's offer sheet, 7 it was
stated that Alcaraz was to be employed on a probationary basis. 8 Later that
day, she accepted the said offer and received an electronic mail (e-mail) from
Abbott's Recruitment Officer, petitioner Teresita C. Bernardo (Bernardo),
confirming the same. Attached to Bernardo's e-mail were Abbott's
organizational chart and a job description of Alcaraz's work. 9 IDSaEA
On February 12, 2005, Alcaraz signed an employment contract which

stated, inter alia, that she was to be placed on probation for a period of six (6)
months beginning February 15, 2005 to August 14, 2005. The said contract was
also signed by Abbott's General Manager, petitioner Edwin Feist (Feist): 10
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PROBATIONARY EMPLOYMENT
Dear Pearl,
After having successfully passed the pre-employment requirements,
you are hereby appointed as follows:
Position Title : Regulatory Affairs Manager
Department : Hospira
The terms of your employment are:
Nature of
: Probationary
Employment
February 15, 2005 to August

Effectivity :
14, 2005
Basic Salary : P110,000.00/month
It is understood that you agree to abide by all existing policies, rules

and regulations of the company, as well as those, which may be
hereinafter promulgated. TaCSAD
Unless renewed, probationary appointment expires on the date

indicated subject to earlier termination by the Company for any
justifiable reason.
If you agree to the terms and conditions of your employment, please

signify your conformity below and return a copy to HRD.
Welcome to Abbott!
Very truly yours,
Sgd. EDWIN D. FEIST

General Manager
CONFORME:
Sgd. PEARLIE ANN FERRER-ALCARAZ
During Alcaraz's pre-employment orientation, petitioner Allan G. Almazar

(Almazar), Hospira's Country Transition Manager, briefed her on her duties and
responsibilities as Regulatory Affairs Manager, stating that: (a) she will handle
the staff of Hospira ALSU and will directly report to Almazar on matters
regarding Hopira's local operations, operational budget, and performance
evaluation of the Hospira ALSU Staff who are on probationary status; (b) she
must implement Abbott's Code of Good Corporate Conduct (Code of Conduct),
office policies on human resources and finance, and ensure that Abbott will hire
people who are fit in the organizational discipline; (c) petitioner Kelly Walsh
(Walsh), Manager of the Literature Drug Surveillance Drug Safety of Hospira,
will be her immediate supervisor; (d) she should always coordinate with
Abbott's human resource officers in the management and discipline of the staff;
(e) Hospira ALSU will spin off from Abbott in early 2006 and will be officially
incorporated and known as Hospira, Philippines. In the interim, Hospira ALSU
operations will still be under Abbott's management, excluding the technical
aspects of the operations which is under the control and supervision of Walsh;
a n d (f) the processing of information and/or raw material data subject of
Hospira ALSU operations will be strictly confined and controlled under the
computer system and network being maintained and operated from the United
States. For this purpose, all those involved in Hospira ALSU are required to use
two identification cards: one, to identify them as Abbott's employees and
another, to identify them as Hospira employees. 11 IcESaA
On March 3, 2005, petitioner Maria Olivia T. Yabut-Misa (Misa), Abbott's

Human Resources (HR) Director, sent Alcaraz an e-mail which contained an
explanation of the procedure for evaluating the performance of probationary
employees and further indicated that Abbott had only one evaluation system
for all of its employees. Alcaraz was also given copies of Abbott's Code of
Conduct and Probationary Performance Standards and Evaluation (PPSE) and
Performance Excellence Orientation Modules (Performance Modules) which she
had to apply in line with her task of evaluating the Hospira ALSU staff. 12
Abbott's PPSE procedure mandates that the job performance of a
probationary employee should be formally reviewed and discussed with the
employee at least twice: first on the third month and second on the fifth month
from the date of employment. The necessary Performance Improvement Plan
should also be made during the third-month review in case of a gap between
the employee's performance and the standards set. These performance
standards should be discussed in detail with the employee within the first two
(2) weeks on the job. It was equally required that a signed copy of the PPSE
form must be submitted to Abbott's Human Resources Department (HRD) and
shall serve as documentation of the employee's performance during his/her
probationary period. This shall form the basis for recommending the
confirmation or termination of the probationary employment. 13
During the course of her employment, Alcaraz noticed that some of the
staff had disciplinary problems. Thus, she would reprimand them for their
unprofessional behavior such as non-observance of the dress code,
moonlighting, and disrespect of Abbott officers. However, Alcaraz's method of
management was considered by Walsh to be "too strict." 14 Alcaraz approached
Misa to discuss these concerns and was told to "lie low" and let Walsh handle
the matter. Misa even assured her that Abbott's HRD would support her in all
her management decisions. 15
On April 12, 2005, Alcaraz received an e-mail from Misa requesting
immediate action on the staff's performance evaluation as their probationary
periods were about to end. This Alcaraz eventually submitted. 16
On April 20, 2005, Alcaraz had a meeting with petitioner Cecille Terrible
(Terrible), Abbott's former HR Director, to discuss certain issues regarding staff
performance standards. In the course thereof, Alcaraz accidentally saw a
printed copy of an e-mail sent by Walsh to some staff members which
essentially contained queries regarding the former's job performance. Alcaraz
asked if Walsh's action was the normal process of evaluation. Terrible said that
it was not. 17 aHECST
On May 16, 2005, Alcaraz was called to a meeting with Walsh and Terrible
where she was informed that she failed to meet the regularization standards for
the position of Regulatory Affairs Manager. 18 Thereafter, Walsh and Terrible
requested Alcaraz to tender her resignation, else they be forced to terminate
her services. She was also told that, regardless of her choice, she should no
longer report for work and was asked to surrender her office identification
cards. She requested to be given one week to decide on the same, but to no
avail. 19
On May 17, 2005, Alcaraz told her administrative assistant, Claude

Gonzales (Gonzales), that she would be on leave for that day. However,
Gonzales told her that Walsh and Terrible already announced to the whole
Hospira ALSU staff that Alcaraz already resigned due to health reasons. 20
On May 23, 2005, Walsh, Almazar, and Bernardo personally handed to
Alcaraz a letter stating that her services had been terminated effective May 19,
2005. 21 The letter detailed the reasons for Alcaraz's termination — particularly,
that Alcaraz: (a) did not manage her time effectively; (b) failed to gain the trust
of her staff and to build an effective rapport with them; (c) failed to train her
staff effectively; and (d) was not able to obtain the knowledge and ability to
make sound judgments on case processing and article review which were
necessary for the proper performance of her duties. 22 On May 27, 2005,
Alcaraz received another copy of the said termination letter via registered mail.
23 ECTSDa
Alcaraz felt that she was unjustly terminated from her employment and
thus, filed a complaint for illegal dismissal and damages against Abbott and its
officers, namely, Misa, Bernardo, Almazar, Walsh, Terrible, and Feist. 24 She
claimed that she should have already been considered as a regular and not a
probationary employee given Abbott's failure to inform her of the reasonable
standards for her regularization upon her engagement as required under Article
2 9 5 25 of the Labor Code. In this relation, she contended that while her
employment contract stated that she was to be engaged on a probationary
status, the same did not indicate the standards on which her regularization
would be based. 26 She further averred that the individual petitioners
maliciously connived to illegally dismiss her when: (a) they threatened her with
termination; (b) she was ordered not to enter company premises even if she
was still an employee thereof; and (c) they publicly announced that she already
resigned in order to humiliate her. 27
On the contrary, petitioners maintained that Alcaraz was validly

terminated from her probationary employment given her failure to satisfy the
prescribed standards for her regularization which were made known to her at
the time of her engagement. 28
The LA Ruling
In a Decision dated March 30, 2006, 29 the LA dismissed Alcaraz's
complaint for lack of merit.
The LA rejected Alcaraz's argument that she was not informed of the
reasonable standards to qualify as a regular employee considering her
admissions that she was briefed by Almazar on her work during her pre-
employment orientation meeting 30 and that she received copies of Abbott's
Code of Conduct and Performance Modules which were used for evaluating all
types of Abbott employees. 31 As Alcaraz was unable to meet the standards set
by Abbott as per her performance evaluation, the LA ruled that the termination
of her probationary employment was justified. 32 Lastly, the LA found that there
was no evidence to conclude that Abbott's officers and employees acted in bad
faith in terminating Alcaraz's employment. 33
Displeased with the LA's ruling, Alcaraz filed an appeal with the National
Labor Relations Commission (NLRC). DTcACa
The NLRC Ruling
On September 15, 2006, the NLRC rendered a Decision, 34 annulling and

setting aside the LA's ruling, the dispositive portion of which reads:
WHEREFORE, the Decision of the Labor Arbiter dated 31 March
2006 [sic] is hereby reversed, annulled and set aside and judgment is
hereby rendered:
1. Finding respondents Abbot [sic] and individual respondents
to have committed illegal dismissal;
2. Respondents are ordered to immediately reinstate
complainant to her former position without loss of seniority rights
immediately upon receipt hereof;
3. To jointly and severally pay complainant backwages
computed from 16 May 2005 until finality of this decision. As of the
date hereof the backwages is computed at
Backwages for 15
a. - PhP1,650,000.00
months
b. 13th month pay - 110,000.00

————————
TOTAL PhP1,760,000.00
==========
4. Respondents are ordered to pay complainant moral

damages of P50,000.00 and exemplary damages of P50,000.00.
5. Respondents are also ordered to pay attorney's fees of
10% of the total award. cDCSTA
6. All other claims are dismissed for lack of merit.

SO ORDERED. 35
The NLRC reversed the findings of the LA and ruled that there was no
evidence showing that Alcaraz had been apprised of her probationary status
and the requirements which she should have complied with in order to be a
regular employee. 36 It held that Alcaraz's receipt of her job description and
Abbott's Code of Conduct and Performance Modules was not equivalent to her
being actually informed of the performance standards upon which she should
have been evaluated on. 37 It further observed that Abbott did not comply with
its own standard operating procedure in evaluating probationary employees. 38
The NLRC was also not convinced that Alcaraz was terminated for a valid cause
given that petitioners' allegation of Alcaraz's "poor performance" remained
unsubstantiated. 39
Petitioners filed a motion for reconsideration which was denied by the

NLRC in a Resolution dated July 31, 2007. 40 CHEIcS
Aggrieved, petitioners filed with the CA a Petition for Certiorari with Prayer
for Issuance of a Temporary Restraining Order and/or Writ of Preliminary
Injunction, docketed as CA G.R. SP No. 101045 (First CA Petition), alleging
grave abuse of discretion on the part of NLRC when it ruled that Alcaraz was
illegally dismissed. 41
Pending resolution of the First CA Petition, Alcaraz moved for the
execution of the NLRC's Decision before the LA, which petitioners strongly
opposed. The LA denied the said motion in an Order dated July 8, 2008 which
was, however, eventually reversed on appeal by the NLRC. 42 Due to the
foregoing, petitioners filed another Petition for Certiorari with the CA, docketed
as CA G.R. SP No. 111318 (Second CA Petition), assailing the propriety of the
execution of the NLRC decision. 43
The CA Ruling
With regard to the First CA Petition, the CA, in a Decision 44 dated
December 10, 2009, affirmed the ruling of the NLRC and held that the latter did
not commit any grave abuse of discretion in finding that Alcaraz was illegally
dismissed.
It observed that Alcaraz was not apprised at the start of her employment
of the reasonable standards under which she could qualify as a regular
employee. 45 This was based on its examination of the employment contract
which showed that the same did not contain any standard of performance or
any stipulation that Alcaraz shall undergo a performance evaluation before she
could qualify as a regular employee. 46 It also found that Abbott was unable to
prove that there was any reasonable ground to terminate Alcaraz's
employment. 47 Abbott moved for the reconsideration of the aforementioned
ruling which was, however, denied by the CA in a Resolution 48 dated June 9,
2010.
The CA likewise denied the Second CA Petition in a Resolution dated May
18, 2010 (May 18, 2010 Resolution) and ruled that the NLRC was correct in
upholding the execution of the NLRC Decision. 49 Thus, petitioners filed a
motion for reconsideration. SHADEC
While the petitioners' motion for reconsideration of the CA's May 18, 2010
Resolution was pending, Alcaraz again moved for the issuance of a writ of
execution before the LA. On June 7, 2010, petitioners received the LA's order
granting Alcaraz's motion for execution which they in turn appealed to the
NLRC — through a Memorandum of Appeal dated June 16, 2010 (June 16, 2010
Memorandum of Appeal) — on the ground that the implementation of the LA's
order would render its motion for reconsideration moot and academic. 50
Meanwhile, petitioners' motion for reconsideration of the CA's May 18,

2010 Resolution in the Second CA Petition was denied via a Resolution dated
October 4, 2010. 51 This attained finality on January 10, 2011 for petitioners'
failure to timely appeal the same. 52 Hence, as it stands, only the issues in the
First CA petition are left to be resolved.
Incidentally, in her Comment dated November 15, 2010, Alcaraz also
alleges that petitioners were guilty of forum shopping when they filed the
Second CA Petition pending the resolution of their motion for reconsideration of
the CA's December 10, 2009 Decision i.e., the decision in the First CA Petition.
53 She also contends that petitioners have not complied with the certification
requirement under Section 5, Rule 7 of the Rules of Court when they failed to
disclose in the instant petition the filing of the June 16, 2010 Memorandum of
Appeal filed before the NLRC. 54
The Issues Before the Court
The following issues have been raised for the Court's resolution:(a)
whether or not petitioners are guilty of forum shopping and have violated the
certification requirement under Section 5, Rule 7 of the Rules of Court; (b)
whether or not Alcaraz was sufficiently informed of the reasonable standards to
qualify her as a regular employee; (c) whether or not Alcaraz was validly
terminated from her employment; and (d) whether or not the individual
petitioners herein are liable. CTcSAE
The Court's Ruling

A. Forum Shopping and
Violation of Section 5, Rule 7
of the Rules of Court.
At the outset, it is noteworthy to mention that the prohibition against
forum shopping is different from a violation of the certification requirement
under Section 5, Rule 7 of the Rules of Court. In Sps. Ong v. CA, 55 the Court
explained that:
. . . The distinction between the prohibition against forum
shopping and the certification requirement should by now be too
elementary to be misunderstood. To reiterate, compliance with the
certification against forum shopping is separate from and independent
of the avoidance of the act of forum shopping itself. There is a
difference in the treatment between failure to comply with the
certification requirement and violation of the prohibition against forum
shopping not only in terms of imposable sanctions but also in the
manner of enforcing them. The former constitutes sufficient cause for
the dismissal without prejudice [to the filing] of the complaint or
initiatory pleading upon motion and after hearing, while the latter is a
ground for summary dismissal thereof and for direct contempt. . . . . 56
As to the first, forum shopping takes place when a litigant files multiple
suits involving the same parties, either simultaneously or successively, to
secure a favorable judgment. It exists where the elements of litis pendentia are
present, namely: (a) identity of parties, or at least such parties who represent
the same interests in both actions; (b) identity of rights asserted and relief
prayed for, the relief being founded on the same facts; and (c) the identity with
respect to the two preceding particulars in the two (2) cases is such that any
judgment that may be rendered in the pending case, regardless of which party
is successful, would amount to res judicata in the other case. 57 HSATIC
In this case, records show that, except for the element of identity of
parties, the elements of forum shopping do not exist. Evidently, the First CA
Petition was instituted to question the ruling of the NLRC that Alcaraz was
illegally dismissed. On the other hand, the Second CA Petition pertains to the
propriety of the enforcement of the judgment award pending the resolution of
the First CA Petition and the finality of the decision in the labor dispute between
Alcaraz and the petitioners. Based on the foregoing, a judgment in the Second
CA Petition will not constitute res judicata insofar as the First CA Petition is
concerned. Thus, considering that the two petitions clearly cover different
subject matters and causes of action, there exists no forum shopping.
As to the second, Alcaraz further imputes that the petitioners violated the
certification requirement under Section 5, Rule 7 of the Rules of Court 58 by not
disclosing the fact that it filed the June 16, 2010 Memorandum of Appeal before
the NLRC in the instant petition.
In this regard, Section 5 (b), Rule 7 of the Rules of Court requires that a
plaintiff who files a case should provide a complete statement of the present
status of any pending case if the latter involves the same issues as the one that
was filed. If there is no such similar pending case, Section 5 (a) of the same rule
provides that the plaintiff is obliged to declare under oath that to the best of his
knowledge, no such other action or claim is pending.
Records show that the issues raised in the instant petition and those in
the June 16, 2010 Memorandum of Appeal filed with the NLRC likewise cover
different subject matters and causes of action. In this case, the validity of
Alcaraz's dismissal is at issue whereas in the said Memorandum of Appeal, the
propriety of the issuance of a writ of execution was in question. Thus, given the
dissimilar issues, petitioners did not have to disclose in the present petition the
filing of their June 16, 2010 Memorandum of Appeal with the NLRC. In any
event, considering that the issue on the propriety of the issuance of a writ of
execution had been resolved in the Second CA Petition — which in fact had
already attained finality — the matter of disclosing the June 16, 2010
Memorandum of Appeal is now moot and academic. HCacDE
Having settled the foregoing procedural matter, the Court now proceeds
to resolve the substantive issues.

B. Probationary employment;
grounds for termination.
A probationary employee, like a regular employee, enjoys security of
tenure. However, in cases of probationary employment, aside from just or
authorized causes of termination, an additional ground is provided under Article
295 of the Labor Code, i.e., the probationary employee may also be terminated
for failure to qualify as a regular employee in accordance with the reasonable
standards made known by the employer to the employee at the time of the
engagement. 59 Thus, the services of an employee who has been engaged on
probationary basis may be terminated for any of the following: (a) a just or (b)
an authorized cause; and (c) when he fails to qualify as a regular employee in
accordance with reasonable standards prescribed by the employer. 60
Corollary thereto, Section 6 (d), Rule I, Book VI of the Implementing Rules

of the Labor Code provides that if the employer fails to inform the probationary
employee of the reasonable standards upon which the regularization would be
based on at the time of the engagement, then the said employee shall be
deemed a regular employee, viz.:
(d)In all cases of probationary employment, the employer shall make
known to the employee the standards under which he will qualify as a
regular employee at the time of his engagement. Where no standards
are made known to the employee at that time, he shall be deemed a
regular employee. caEIDA
In other words, the employer is made to comply with two (2) requirements
when dealing with a probationary employee: first, the employer must
communicate the regularization standards to the probationary employee; and
second, the employer must make such communication at the time of the
probationary employee's engagement. If the employer fails to comply with
either, the employee is deemed as a regular and not a probationary employee.
Keeping with these rules, an employer is deemed to have made known
the standards that would qualify a probationary employee to be a regular
employee when it has exerted reasonable efforts to apprise the employee of
what he is expected to do or accomplish during the trial period of probation.
This goes without saying that the employee is sufficiently made aware of his
probationary status as well as the length of time of the probation.
The exception to the foregoing is when the job is self-descriptive in

nature, for instance, in the case of maids, cooks, drivers, or messengers. 61
Also, in Aberdeen Court, Inc. v. Agustin, 62 it has been held that the rule on
notifying a probationary employee of the standards of regularization should not
be used to exculpate an employee who acts in a manner contrary to basic
knowledge and common sense in regard to which there is no need to spell out a
policy or standard to be met. In the same light, an employee's failure to
perform the duties and responsibilities which have been clearly made known to
him constitutes a justifiable basis for a probationary employee's non-
regularization.

In this case, petitioners contend that Alcaraz was terminated because she
failed to qualify as a regular employee according to Abbott's standards which
were made known to her at the time of her engagement. Contrarily, Alcaraz
claims that Abbott never apprised her of these standards and thus, maintains
that she is a regular and not a mere probationary employee.
The Court finds petitioners' assertions to be well-taken.
A punctilious examination of the records reveals that Abbott had indeed

complied with the above-stated requirements. This conclusion is largely
impelled by the fact that Abbott clearly conveyed to Alcaraz her duties and
responsibilities as Regulatory Affairs Manager prior to, during the time of her
engagement, and the incipient stages of her employment. On this score, the
Court finds it apt to detail not only the incidents which point out to the efforts
made by Abbott but also those circumstances which would show that Alcaraz
was well-apprised of her employer's expectations that would, in turn, determine
her regularization: DTCSHA
(a) On June 27, 2004, Abbott caused the publication in a major

broadsheet newspaper of its need for a Regulatory Affairs Manager, indicating
therein the job description for as well as the duties and responsibilities
attendant to the aforesaid position; this prompted Alcaraz to submit her
application to Abbott on October 4, 2004;
(b) In Abbott's December 7, 2004 offer sheet, it was stated that

Alcaraz was to be employed on a probationary status;
(c) On February 12, 2005, Alcaraz signed an employment contract
which specifically stated, inter alia, that she was to be placed on probation for a
period of six (6) months beginning February 15, 2005 to August 14, 2005;
(d) On the day Alcaraz accepted Abbott's employment offer, Bernardo

sent her copies of Abbott's organizational structure and her job description
through e-mail;
(e) Alcaraz was made to undergo a pre-employment orientation

where Almazar informed her that she had to implement Abbott's Code of
Conduct and office policies on human resources and finance and that she would
be reporting directly to Walsh;
(f) Alcaraz was also required to undergo a training program as part of
her orientation;
(g) Alcaraz received copies of Abbott's Code of Conduct and
Performance Modules from Misa who explained to her the procedure for
evaluating the performance of probationary employees; she was further
notified that Abbott had only one evaluation system for all of its employees;
and
(h) Moreover, Alcaraz had previously worked for another
pharmaceutical company and had admitted to have an "extensive training and
background" to acquire the necessary skills for her job. 63 DIcSHE

Considering the totality of the above-stated circumstances, it cannot,
therefore, be doubted that Alcaraz was well-aware that her regularization
would depend on her ability and capacity to fulfill the requirements of her
position as Regulatory Affairs Manager and that her failure to perform such
would give Abbott a valid cause to terminate her probationary employment.
Verily, basic knowledge and common sense dictate that the adequate
performance of one's duties is, by and of itself, an inherent and implied
standard for a probationary employee to be regularized; such is a regularization
standard which need not be literally spelled out or mapped into technical
indicators in every case. In this regard, it must be observed that the
assessment of adequate duty performance is in the nature of a management
prerogative which when reasonably exercised — as Abbott did in this case —
should be respected. This is especially true of a managerial employee like
Alcaraz who was tasked with the vital responsibility of handling the personnel
and important matters of her department.
In fine, the Court rules that Alcaraz's status as a probationary employee

and her consequent dismissal must stand. Consequently, in holding that
Alcaraz was illegally dismissed due to her status as a regular and not a
probationary employee, the Court finds that the NLRC committed a grave abuse
of discretion.
To elucidate, records show that the NLRC based its decision on the
premise that Alcaraz's receipt of her job description and Abbott's Code of
Conduct and Performance Modules was not equivalent to being actually
informed of the performance standards upon which she should have been
evaluated on. 64 It, however, overlooked the legal implication of the other
attendant circumstances as detailed herein which should have warranted a
contrary finding that Alcaraz was indeed a probationary and not a regular
employee — more particularly the fact that she was well-aware of her duties
and responsibilities and that her failure to adequately perform the same would
lead to her non-regularization and eventually, her termination.
Accordingly, by affirming the NLRC's pronouncement which is tainted with
grave abuse of discretion, the CA committed a reversible error which, perforce,
necessitates the reversal of its decision.
C. Probationary employment;
termination procedure.
A different procedure is applied when terminating a probationary
employee; the usual two-notice rule does not govern. 65 Section 2, Rule I, Book
VI of the Implementing Rules of the Labor Code states that "[i]f the termination
is brought about by the . . . failure of an employee to meet the standards of the
employer in case of probationary employment, it shall be sufficient that a
written notice is served the employee, within a reasonable time from the
effective date of termination." TIaCHA
As the records show, Alcaraz's dismissal was effected through a letter

dated May 19, 2005 which she received on May 23, 2005 and again on May 27,
2005. Stated therein were the reasons for her termination, i.e., that after
proper evaluation, Abbott determined that she failed to meet the reasonable
standards for her regularization considering her lack of time and people
management and decision-making skills, which are necessary in the
performance of her functions as Regulatory Affairs Manager. 66 Undeniably, this
written notice sufficiently meets the criteria set forth above, thereby
legitimizing the cause and manner of Alcaraz's dismissal as a probationary
employee under the parameters set by the Labor Code. 67
D. Employer's violation of
company policy and
procedure.
Nonetheless, despite the existence of a sufficient ground to terminate
Alcaraz's employment and Abbott's compliance with the Labor Code
termination procedure, it is readily apparent that Abbott breached its
contractual obligation to Alcaraz when it failed to abide by its own procedure in
evaluating the performance of a probationary employee.
Veritably, a company policy partakes of the nature of an implied contract
between the employer and employee. In Parts Depot, Inc. v. Beiswenger, 68 it
has been held that: EHaCTA
[E]mployer statements of policy . . . can give rise to contractual rights

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

obligation on the part of both the employee and the employer to abide by the
same.
Records show that Abbott's PPSE procedure mandates, inter alia, that the
job performance of a probationary employee should be formally reviewed and
discussed with the employee at least twice: first on the third month and second
on the fifth month from the date of employment. Abbott is also required to
come up with a Performance Improvement Plan during the third month review
to bridge the gap between the employee's performance and the standards set,
if any. 69 In addition, a signed copy of the PPSE form should be submitted to
Abbott's HRD as the same would serve as basis for recommending the
confirmation or termination of the probationary employment. 70
In this case, it is apparent that Abbott failed to follow the above-stated

procedure in evaluating Alcaraz. For one, there lies a hiatus of evidence that a
signed copy of Alcaraz's PPSE form was submitted to the HRD. It was not even
shown that a PPSE form was completed to formally assess her performance.
Neither was the performance evaluation discussed with her during the third and
fifth months of her employment. Nor did Abbott come up with the necessary
Performance Improvement Plan to properly gauge Alcaraz's performance with
the set company standards. cHATSI
While it is Abbott's management prerogative to promulgate its own

company rules and even subsequently amend them, this right equally demands
that when it does create its own policies and thereafter notify its employee of
the same, it accords upon itself the obligation to faithfully implement them.
Indeed, a contrary interpretation would entail a disharmonious relationship in
the work place for the laborer should never be mired by the uncertainty of
flimsy rules in which the latter's labor rights and duties would, to some extent,
depend.
In this light, while there lies due cause to terminate Alcaraz's probationary
employment for her failure to meet the standards required for her
regularization, and while it must be further pointed out that Abbott had
satisfied its statutory duty to serve a written notice of termination, the fact that
it violated its own company procedure renders the termination of Alcaraz's
employment procedurally infirm, warranting the payment of nominal damages.
A further exposition is apropos.
Case law has settled that an employer who terminates an employee for a
valid cause but does so through invalid procedure is liable to pay the latter
nominal damages.
In Agabon v. NLRC (Agabon), 71 the Court pronounced that where the

dismissal is for a just cause, the lack of statutory due process should not nullify
the dismissal, or render it illegal, or ineffectual. However, the employer should
indemnify the employee for the violation of his statutory rights. 72 Thus, in
Agabon, the employer was ordered to pay the employee nominal damages in
the amount of P30,000.00. 73
Proceeding from the same ratio, the Court modified Agabon in the case of
Jaka Food Processing Corporation v. Pacot (Jaka) 74 where it created a
distinction between procedurally defective dismissals due to a just cause, on
one hand, and those due to an authorized cause, on the other. ACcHIa
It was explained that if the dismissal is based on a just cause under

Article 282 of the Labor Code (now Article 296) but the employer failed to
comply with the notice requirement, the sanction to be imposed upon him
should be tempered because the dismissal process was, in effect, initiated by
an act imputable to the employee; if the dismissal is based on an authorized
cause under Article 283 (now Article 297) but the employer failed to comply
with the notice requirement, the sanction should be stiffer because the
dismissal process was initiated by the employer's exercise of his management
prerogative. 75 Hence, in Jaka, where the employee was dismissed for an
authorized cause of retrenchment 76 — as contradistinguished from the
employee in Agabon who was dismissed for a just cause of neglect of duty77 —
the Court ordered the employer to pay the employee nominal damages at the
higher amount of P50,000.00.
Evidently, the sanctions imposed in both Agabon and Jaka proceed from
the necessity to deter employers from future violations of the statutory due
process rights of employees. 78 In similar regard, the Court deems it proper to
apply the same principle to the case at bar for the reason that an employer's
contractual breach of its own company procedure — albeit not statutory in
source — has the parallel effect of violating the laborer's rights. Suffice it to
state, the contract is the law between the parties and thus, breaches of the
same impel recompense to vindicate a right that has been violated.
Consequently, while the Court is wont to uphold the dismissal of Alcaraz
because a valid cause exists, the payment of nominal damages on account of
Abbott's contractual breach is warranted in accordance with Article 2221 of the
Civil Code. 79
Anent the proper amount of damages to be awarded, the Court observes
that Alcaraz's dismissal proceeded from her failure to comply with the
standards required for her regularization. As such, it is undeniable that the
dismissal process was, in effect, initiated by an act imputable to the employee,
akin to dismissals due to just causes under Article 296 of the Labor Code.
Therefore, the Court deems it appropriate to fix the amount of nominal
damages at the amount of P30,000.00, consistent with its rulings in both
Agabon and Jaka. cDHCAE
E. Liability of individual
petitioners as corporate
officers.
It is hornbook principle that personal liability of corporate directors,
trustees or officers attaches only when: (a) they assent to a patently unlawful
act of the corporation, or when they are guilty of bad faith or gross negligence
in directing its affairs, or when there is a conflict of interest resulting in
damages to the corporation, its stockholders or other persons; (b) they consent
to the issuance of watered down stocks or when, having knowledge of such
issuance, do not forthwith file with the corporate secretary their written
objection; (c) they agree to hold themselves personally and solidarily liable with
the corporation; or (d) they are made by specific provision of law personally
answerable for their corporate action. 80
In this case, Alcaraz alleges that the individual petitioners acted in bad
faith with regard to the supposed crude manner by which her probationary
employment was terminated and thus, should be held liable together with
Abbott. In the same vein, she further attributes the loss of some of her
remaining belongings to them. 81

Alcaraz's contention fails to persuade.
A judicious perusal of the records show that other than her unfounded
assertions on the matter, there is no evidence to support the fact that the
individual petitioners herein, in their capacity as Abbott's officers and
employees, acted in bad faith or were motivated by ill will in terminating
Alcaraz's services. The fact that Alcaraz was made to resign and not allowed to
enter the workplace does not necessarily indicate bad faith on Abbott's part
since a sufficient ground existed for the latter to actually proceed with her
termination. On the alleged loss of her personal belongings, records are bereft
of any showing that the same could be attributed to Abbott or any of its
officers. It is a well-settled rule that bad faith cannot be presumed and he who
alleges bad faith has the onus of proving it. All told, since Alcaraz failed to prove
any malicious act on the part of Abbott or any of its officers, the Court finds the
award of moral or exemplary damages unwarranted. CHDaAE
WHEREFORE, the petition is GRANTED. The Decision dated December

10, 2009 and Resolution dated June 9, 2010 of the Court of Appeals in CA-G.R.
SP No. 101045 are hereby REVERSED and SET ASIDE. Accordingly, the
Decision dated March 30, 2006 of the Labor Arbiter is REINSTATED with the
MODIFICATION that petitioner Abbott Laboratories, Philippines be ORDERED
to pay respondent Pearlie Ann F. Alcaraz nominal damages in the amount of
P30,000.00 on account of its breach of its own company procedure.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-de Castro, Peralta, Bersamin,

Del Castillo, Abad, Villarama, Jr., Perez and Reyes, JJ., concur.
Brion, J., see dissent.
Mendoza, J., but concurs with J. Brion in his views on the procedural
aspect.
Leonen, J., I join J. Brion in his dissent.
Separate Opinions
BRION, J., dissenting:
The Case
The case in caption was a Second Division illegal dismissal case that the
Court en banc accepted for decision pursuant to Section 3, Rule 2 of the
Internal Rules of the Supreme Court. SaAcHE
A. The Issues Posed

The case posed two issues to the Court for resolution. The first is the
manner of review that the Court should undertake. This is an issue that
underlies all the Court's decision making in light of the various modes of review
and essentials that the Rules of Court require. The second and core issue
relates to the merits of the legality or illegality of the dismissal: whether the
Labor Code requirements governing the dismissal of a probationary employee
had been complied with, considered from the prism of the mode of review and
the nature of the decision under review.
B. The Factual Highlights
To briefly summarize the highlights of the case, Abbott Laboratories, Phils.
(petitioner), Cecille A. Terrible, Edwin D. Feist, Maria Olivia T. Yabut-Misa,
Teresita C. Bernardo, and Allan G. Almazar (individual petitioners) are the
employer and its senior officials who dismissed respondent Pearlie Ann F.
Alcaraz from employment within three (3) months from her engagement. The
respondent complained against the petitioners on the ground that she had
been illegally dismissed: (1) she was not informed of the standards that would
govern her as a probationary employee, as required by the law (the Labor
Code) and its implementing rules; (2) the petitioners even violated the
company's own internal rules on the manner of dismissing probationary
employees; (3) substantively, her dismissal was without the required just cause
as required by the law and the rules; and (4) her dismissal was done
oppressively and in bad faith. ADHCSE
C. The Rulings Below

T h e Labor Arbiter ruled that the dismissal had been valid but the
National Labor Relations Commission (NLRC) reversed the Labor Arbiter;
found the dismissal illegal; and damages and attorney's fees because of the
manner the dismissal was effected. The Court of Appeals (CA) found no grave
abuse of discretion and accordingly denied the Rule 65 petition that the
petitioner Abbott brought.
D. The Current Court Rulings
The Ponencia. In the present Rule 45 petition for review on certiorari
before this Court, the ponencia undertook a weighing of the evidence in
light of her own view of how the evidence should be interpreted, and
came out with her own ruling for the grant of the petition.
This Dissent. I vote to dismiss the petition before us as I agree with the
decision of the CA that the NLRC did not commit any grave abuse of
discretion in concluding that respondent had been illegally dismissed
from employment.
Discussion of the Issues

I. The Procedural Issue
A. The Preliminary Issue: Manner of Review
A labor case finds its way into the judicial system from the NLRC whose
decision is final and executory . Finality simply means that the NLRC ruling is
no longer appealable ; the legal intent is to confine adjudication of labor
cases to labor tribunals with the expertise in these cases and thereby bring the
resolution of the case to a close at the soonest possible time.
When an administrative ruling (or any ruling for that matter) is already
final and unappealable, the only recourse open under the Rules of Court is
through a limited review on jurisdictional grounds under Rule 65 . This
has been the mode of review followed since the Labor Code took effect in
November 1974; labor cases were directly brought to this Court but only on
jurisdictional grounds under Rule 65. 1
In 1998, the Court — in lieu of directly acting on labor cases under Rule
65 of the Rules of Court — opted to change the procedure of review through
its ruling in St. Martin Funeral Homes, Inc. vs. National Labor Relations
Commission, 2 taking into account the judicial hierarchy of courts and the
growing number of labor cases elevated to the Supreme Court under Rule 65.
The Court resolved that the proper recourse from the NLRC's final and
executory ruling is to assail the ruling before the CA under Rule 65 . Thus, the
unappealable character of the NLRC ruling (as declared by substantive law) did
not change; only the process of review changed in terms of the court (from the
Supreme Court to the Court of Appeals) to which the labor case can initially be
brought. TIcEDC
From the CA ruling, a dissatisfied party has the option to file an appeal
with the Supreme Court through a petition for review on certiorari under
Rule 45 of the Rules of Court. This mode of appeal limits the review to
questions of law.
B. Standard of Review of a Labor Case under Rule 45 of the Rules
of Court
In Montoya v. Transmed, 3 the Supreme Court (the Court), through its
Second Division, clarified the approach that the CA and this Court should make
in the handling of labor cases, among others, to ensure the prompt handling of
these cases and thereby unclog our dockets. To quote our ruling in Montoya:
In a Rule 45 review, we consider the correctness of the assailed
CA decision, in contrast with the review for jurisdictional error that
we undertake under Rule 65. Furthermore, Rule 45 limits us to the
review of questions of law raised against the assailed CA decision.
In ruling for legal correctness, we have to view the CA decision in the
same context that the petition for certiorari it ruled upon was
presented to it; we have to examine the CA decision from the
prism of whether it correctly determined the presence or
absence of grave abuse of discretion in the NLRC decision
before it, not on the basis of whether the NLRC decision on
the merits of the case was correct. In other words, we have to be
keenly aware that the CA undertook a Rule 65 review, not a review on
appeal, of the NLRC decision challenged before it. This is the
approach that should be basic in a Rule 45 review of a CA ruling in a
labor case. In question form, the question to ask is: Did the CA
correctly determine whether the NLRC committed grave
abuse of discretion in ruling on the case? 4 [emphases and
italics supplied; citations omitted] DTAESI

Thus, under the Rule 65 review by the CA , Montoya reiterates that the
sole ground or issue allowed is jurisdictional — the presence or absence of
grave abuse of discretion on the part of the NLRC in ruling on the case . To state
the obvious, this kind of review would have made it easier for the CA to handle
the case; in the absence of a grave abuse of discretion, it can dismiss labor
cases for lack of grave abuse of discretion as we do in this Court.
From the CA, further recourse is through a Rule 45 review by this
Court on questions of law in accordance with prevailing rulings. The office of
a petition for review on certiorari is not to examine and settle factual
questions already ruled upon below. In this review, the Court simply
determines whether the legal correctness of the CA's finding that the
NLRC ruling of illegal dismissal had basis in fact and in law.
This manner of review is effectively a supervisory review by the courts
that bears two significant characteristics: first, it respects the mandate of the
law that the decision below is final and is not for the courts to review on appeal
for its legal and factual merits; and second, review by the courts (particularly
by the Supreme Court) in the exercise of their supervisory certiorari
jurisdiction is mandated no less than by the Constitution and is intended to
ensure that the deciding entity stayed within the due bounds of its authority or
jurisdiction. 5
Specifically, in reviewing a CA labor ruling under Rule 45 of the Rules of
Court, the Court's review is limited to:
(1) Ascertaining the correctness of the CA's decision in finding

the presence or absence of a grave abuse of discretion. This is done by
examining, on the basis of the parties' presentations, whether the CA correctly
determined that at the NLRC level, all the adduced pieces of evidence were
considered; no evidence which should not have been considered was
considered; and the evidence presented supports the NLRC findings; and
(2) Deciding any other jurisdictional error that attended the CA's
interpretation or application of the law.
In this kind of limited review, the Court avoids reviewing a labor case by
re-weighing the evidence or re-evaluating its sufficiency; the task of weighing
or evaluation, as a rule, lies within the NLRC's jurisdiction as an administrative
appellate body. aDcHIS
If the NLRC ruling has basis in the evidence and the applicable law and
jurisprudence, then no grave abuse of discretion exists and the CA should so
declare and, accordingly, dismiss the petition. If grave abuse of discretion
exists, then the CA must grant the petition and nullify the NLRC ruling, entering
at the same time the ruling that is justified under the evidence and the
governing law, rules and jurisprudence. In our Rule 45 review, this Court must
deny the petition if it finds that the CA correctly acted.
In the context of the present case, the CA found no grave abuse
of discretion committed by the NLRC; hence, the CA dismissed the
Rule 65 petition before it. In our own ruling on the Rule 45 petition
before us, we should evaluate the petition in this light, not in the
manner that the ponencia did in concluding for the grant of the
petition and ruling in favor of the petitioners.
By so doing, the ponencia undertook a factual appellate review that laid
the whole case open for the detailed examination of every piece of evidence
adduced in the case and for the evaluation of the correctness of the application
of the law to the evidence found. This is a review that a Rule 45 petition does
not allow.
II. The Substantive Issues

A. The Respondent's Status of Employment
II.A.1. Standards to determine probationary employment
While the respondent might have been hired as a probationary employee,
the petitioners' evidence did not establish the employers' compliance
with the probationary employment requirements under Article 281 of
the Labor Code (as amended) and Section 6 (d) of the Implementing
Rules of Book VI, Rule I of the Labor Code (as amended). Thus, the
respondent should be considered a regular employee and the case should be
reviewed on this basis. CAETcH
Article 281 of the Labor Code, as amended, provides:

ART. 281.Probationary employment. — Probationary employment
shall not exceed six (6) months from the date the employee started
working, unless it is covered by an apprenticeship agreement
stipulating a longer period. The services of an employee who has been
engaged on a probationary basis may be terminated for a just cause or
when he fails to qualify as a regular employee in accordance with
reasonable standards made known by the employer to the
employee at the time of his engagement. An employee who is
allowed to work after a probationary period shall be considered a
regular employee. [italics supplied; emphasis ours]
Further, Section 6 (d) of the Implementing Rules of Book VI, Rule I of the
Labor Code, as amended, states:
Sec. 6.Probationary employment. — There is probationary
employment where the employee, upon his engagement, is made to
undergo a trial period during which the employer determines his
fitness to qualify for regular employment, based on reasonable
standards made known to him at the time of engagement.
[emphasis supplied]
Probationary employment shall be governed by the following
rules:
xxx xxx xxx

(d)In all cases of probationary employment, the employer
shall make known to the employee the standards under which he
will qualify as a regular employee at the time of his
engagement. Where no standards are made known to the
employee at that time, he shall be deemed a regular employee.
[emphases ours; italics supplied]CIaHDc
To sum up these provisions, a valid probationary employment requires

the concurrence of two requirements. First, the employer shall make known
t h e reasonable standard (performance standard) whose compliance will
render the employee qualified to be a regular employee. Second, the employer
shall inform the employee of the applicable performance standard at the
time of his/her engagement. Failing in one or both, the employee, even if
initially hired as a probationary employee, should be viewed and considered a
regular employee.
The ponencia apparently fully agrees with the above statement of the
applicable law as it substantially recites the same requirements, including the
consequence that upon failure to comply with these same requirements, "the
employee is deemed as a regular and not a probationary employee. " 6 It
continues, however, with a twist that effectively negates what it has stated
and admitted about the need to communicate the regularization standards to
the employee, thus:
Keeping with these rules, an employees is deemed to have made
known the standards that would qualify a probationary employee to be
a regular employee when it has exerted reasonable efforts to apprise
the employee of what he is expected to do to accomplish during the
trial of probation. This goes without saying that the employee is
sufficiently made aware of his probationary status as well as the length
of time of the probation.
The exception to the foregoing is when the job is self-descriptive
in nature, for instance, in the case of maids, cooks, drivers, or
messengers. Also in Aberdeen Court, Inc. v. Agustin , it has been held
that the rule on notifying a probationary employee of the standards of
regularization should not be used to exculpate an employee in a
manner contrary to basic knowledge and common sense in regard to
which there is no need to spell out a policy or standard to be met. In
the same light, an employee's failure to perform the duties and
responsibilities which have been clearly made known to him constitutes
a justifiable basis for a probationary employee's non-regularization.
[footnotes from the original, omitted] IDAESH
Based on these premises, the ponencia then deftly argues that because
the duties and responsibilities of the position have been explained to the
respondent, an experienced human resource specialist, she should have known
what was expected for her to attain regular status.
The ponencia's reasoning, however, is badly flawed.
1st. The law and the rules require that there performance standards
communicated at the time of engagement to the probationary employee.
The performance standards to be met are the employer's specific
expectations of how the probationary employee should perform.
The ponencia impliedly admits that no performance standards were
expressly given but argues that because the respondent had been informed of
her duties and responsibilities (a fact that was and is not disputed), she should
be deemed to know what was expected of her for purposes of regularization.
This is a major flaw that the ponencia satisfies only via an assumption.
The ponencia apparently forgets that knowledge of duties and responsibilities is
different from the measure of how these duties and responsibilities should be
delivered. They are separate elements and the latter element is missing in the
present case.
2nd. The ponencia glosses over the communication aspect. Not only must
there be express performance standards (except in specific instances defined
in the implementing rules, discussed below); there must be effective
communication. If no standards were provided, what would be communicated?
3rd. The ponencia badly contradicts itself in claiming that actual
communication of specific standards might not be necessary "when the job is
self-descriptive in nature, for instance, in the case of maids, cooks, drivers, or
messengers." The respondent, in the first place, was never a maid, cook, driver
or a messenger and cannot be placed under this classification; she was hired
and employed as a human resources manager, in short, a managerial
employee. Plain and common sense reasoning by one who ever had been in an
employment situation dictates that the job of a managerial employee cannot be
self-explanatory, in the way the ponencia implied; the complexity of a
managerial job must necessarily require that the level of performance to be
delivered must be specified and cannot simply be assumed based on the
communication of the manager's duties and responsibilities.
4th. The ponencia also forgets that what these "performance standards"
or measures cannot simply be assumed because they are critically important in
this case, or for that matter, in any case involving jobs whose duties and
responsibilities are not simple or self-descriptive. If the respondent had been
evaluated or assessed in the manner that the company's internal rules require,
these standards would have been the basis for her performance or lack of it.
Last but not the least, the respondent's services were terminated on the basis
of the performance standards that, by law, the employer set or prescribed at
the time of the employee's engagement. If none had been prescribed in the
first place, under what basis could the employee then be assessed for purposes
of termination or regularization? IDSaAH
From these preliminary take-off points in the ponencia's

premises, it can already be discerned that something is badly amiss
and skewed in its appreciation and review of the rulings of the NLRC
and the CA. It is an appreciation that goes beyond what a
determination of grave abuse of discretion requires. It is an evaluation
of the adduced evidence based on externalities beyond the face value
of the presented evidence.
In this case, the ponencia simply disregarded the plain import of

the evidence or the lack of it, and ventured into the realm of
assumptions to justify its desired conclusions. In the mathematical
realm of problem solving, it appears to have started from the
conclusion and solved the problem backwards so that the conclusion
would fit into its stretched reading of the evidence.
II.A.2.The respondent should be deemed a regular employee
In the context of this case, an initial determination of how the

respondent's employment started and of her legal status at that point is the
best starting point in determining the validity of her dismissal.
The respondent was indisputably initially hired as a probationary

employee. This is not a contested point. The established facts and the
applicable law, however, dictate otherwise from the perspective of law as the
petitioners failed to show compliance with the two requirements of
Article 281 of the Labor Code (as amended) and of Section 6 (d) of the
Implementing Rules of Book VI, Rule I of the Labor Code (as amended).
This was what the NLRC found, leading the CA to conclude that
no grave abuse of discretion intervened in the NLRC's ruling because
its findings were supported by the evidence on record and by the
correctly-chosen applicable law. In stark contrast, the ponencia's reading,
although based on the same legal premises, was based on shaky assumptions,
not on the hard evidence that the tribunals below appreciated. STcaDI
II.A.2(a).No specific employment standard on record.

As the NLRC found (and as confirmed by the CA), no term or provision
exists in the respondent's Employment Contract 7 relating to the performance
standard that the respondent was expected to observe. The Employment
Contract, duly presented as evidence, only proved the terms and conditions of
the respondent's employment as therein indicated, i.e., the position title, the
assigned department, the status of employment, and the period of
employment. Beyond these, the Employment Contract did not say anything
more. To be sure, nothing more can be extracted from this piece of evidence
except the facts stated and the inferences by implication from the expressly
disclosed information. Significantly, none of these can be characterized or
inferred by implication as performance standards.
The best evidence of what the ponencia did when it saw matters
otherwise, is its own statement: its basis is not what the submitted evidence
state but on what she was "largely impelled" to recognize. To quote the
ponencia's own words:
A punctilious examination of the records reveals that Abbott had
indeed complied with the above requirements. This conclusion is
largely impelled by the fact that Abbott clearly conveyed to
Alcaraz her duties and responsibilities as Regulatory Affairs
Manager prior to, during the time of her engagement, and the
incipient states of her employment. On this score, the Court finds it apt
to detail not only of the incidents which point out to the efforts made
by Abbott but also those circumstances which would show that Alcaraz
was well-apprised of her employer's expectations that would, in turn
determine her regularization:" [emphasis supplied]
CTDHSE
The petitioner's other pieces of evidence that the ponencia cited and used
to support its conclusion do not and cannot, however, satisfy the requirement
for performance standards that must be communicated at the time of
engagement.
Specifically, these were the Offer Sheet dated December 7, 2004, and
the pre-employment orientation on the respondent's duty to implement the
petitioner's Code of Conduct, office policies and training program.
The Offer Sheet was designed to inform the respondent of the

compensation and benefits package offered to her by the petitioner and can in
no way be read as a statement of the applicable probationary employment
standard. 8 It was communicated even prior to engagement when the parties
were negotiating, not at the point of engagement as the law requires.
The pre-employment orientation on the respondent's duty to implement

the petitioner's Code of Conduct, office policies and training program likewise
cannot be characterized as performance standards; they simply related to
activities aimed at acquainting and training the respondent on her duties and
not for the purpose of informing her of the performance standards applicable to
her. What stands out is that they do not pertain specifically to the
respondent and the required performance standard applicable for her
qualification for regular employment; they related to the staff the
respondent managed and supervised. Additionally, these were all relayed prior
to or after the respondent was engaged by the petitioner.
An important distinction to remember at this point is that the

respondent's knowledge of the duties that her work entailed, and her
knowledge of the employer's performance standard, are two distinct matters
separately requiring the presentation of independent proof. CAIaHS
The requirement of independent proof is found under Article 281 of the

Labor Code, as amended, and its implementing rule that deem an employee to
be regular if he/she was not informed of the performance standard for
regularization. Independent proof is likewise necessary as the law provides an
additional ground for terminating a probationary employment, i.e., when the
employee "fails to qualify as a regular employee in accordance with the
reasonable standards made known by the employers[.]" 9
The performance standard contemplated in law may be proven by
evidence of how the employee's performance was intended to be or was, in
fact, measured by the employer. The performance standard may be in the form
of a clear set of the employer's expectations, or by a system of feedbacks (e.g.,
comment cards) and document evaluation or performance evaluation and
appraisals conducted by the employer.
These were the pieces of evidence that the NLRC, as confirmed

by the CA, did not see in the evidence or in the petitioners' presented
case. The ponencia, unfortunately, glossed over these gaps and omissions in
the petitioners' case and chose to believe, even without evidentiary basis that
—
Considering the totality of the above-stated circumstances ,
it cannot, therefore, be doubted that Alcaraz was well-aware that her
regularization would depend on her ability and capacity to fulfill the
requirements of her position as Regulatory Affairs Manager and that
her failure to perform such would give Abbott a valid cause to
terminate her probationary employment. [emphasis supplied]
From this strained and stretched reading that magically saw the required
prescribed performance standards that — by the factual findings of the NLRC
and the CA — never existed, the ponencia went on to conclude: DEcSaI
Verily, basic knowledge and common sense dictate that the

adequate performance of one's duties is, by and of itself, an inherent
and implied standard for a probationary employee to be regularized;
such is a regularization standard which need not be literally spelled out
or mapped into technical indicators in every case. In this regard, it
must be observed that the assessment of adequate duty performance
is in the nature of a management prerogative which when reasonably
exercised — as Abbott did in this case — should be respected. This is
especially true of a managerial employee like Alcaraz who was tasked
with the vital responsibility of handling personnel and important
matters of her department.
This conclusion, of course, simply extends the magic by using "basic

knowledge and common sense" to dictate the existence of "inherent and
implied standards" of a probationary employee, and even offers a view of
"management prerogative" that is unusual in the given facts of this case.
This approach eloquently exemplifies what I mentioned above as the "solving
backwards" approach that the ponencia used. TIaCcD
II.A.2(b).No specific performance standard communicated

to the respondent.
Complementing the requirement for the existence of performance
standards is the required communication of the performance standard to the
respondent. Again, nothing in the records shows that the petitioner ever
communicated any performance standard to the respondent.
The ponencia, in building up a case contrary to what the NLRC and the CA
found, cites the evidence the petitioners point to — the respondent's receipt of
copies of the petitioner's Code of Conduct, Probationary Performance Standards
and Evaluation, and Performance Excellence Orientation Modules. The NLRC
and the CA, looking at the same pieces of evidence, saw these in a different
light as they did not only examine the documents themselves but went
to the extent of examining and appreciating the circumstances
surrounding the respondent's receipt of these documents.
The evidence on record suggests, as the respondent directly testified to,
that the cited documents were not given to her for the purpose of complying
with the petitioner's obligation to inform her of the performance standards
applicable to her. The documents were, in fact, given by the petitioner to
assist her in monitoring the employees assigned to her department,
i.e., as the documents she must rely on in conducting the performance
evaluations of the staff assigned to her department . In short, the
respondent received the documents because they were necessary in the
discharge of her functions.
From the point of law, compliance with the first requirement is not also
satisfied by the petitioner's assertion that the respondent knew that only one
performance standard applied to all employees. Notably, the law requires proof
that the employer specifically made known to her the performance standards
applicable to her to enable her to qualify for regular employment. The
required communication must be an effective one if the law were to be
given meaningful substance, not a mere perfunctory transmission of
information.
Faced with these opposing claims, the CA apparently weighed matters in
the respondent's (and effectively in the NLRC's) favor. In this situation of
possible equipoise, the CA did not rule incorrectly from the point of law when it
acted as it did. HICEca
Two factors tilt the balance in favor of the legal correctness of the CA's
ruling. The first is that the respondent's position (found by the NLRC to be
meritorious) was not without any basis in fact and in law . The second is
from the latter perspective; Article 4 of the Labor Code and established
jurisprudence hold that any doubt in a labor situation must be resolved in the
employee's favor.
Thus, again, the ponencia's case and its conclusion must fail.
II.A.2(c).Performance standards and the internal
procedures for their evaluation were not applied
to the respondent.
I can only agree with one aspect of the ponencia — its admission that
Abbott's internal procedures were not applied to the respondent. I cannot
dispute and I fully agree with the following passages of the ponencia:
Records show that Abbott's PPSE procedure mandates, inter alia,
that the job performance of a probationary employee should be
formally reviewed and discussed with the employee at least twice: first
on the third month and second on the fifth month from the date of
employment. Abbott is also required to come up with a Performance
Improvement Plan during the third month review to bridge the gap
between the employee's performance and the standards set, if any. In
addition, a signed copy of the PPSE form should be submitted to
Abbott's HRD as the same would serve as basis for recommending the
confirmation or termination of the probationary employment. HAICET
In this case, as it is apparent that Abbott failed to follow the

above-stated procedure in evaluating Alcaraz. For one, there lies a
hiatus of evidence that a signed copy of Alcaraz PPSE form was
submitted to the HRD. It was not even shown that a PPSE form was
completed to formally assess her performance. Neither was the
performance evaluation discussed with her during the third and fifth
months of her employment. Nor did Abbott come up with the necessary
Performance Improvement Plan to properly gauge Alcaraz performance
with the set company standards.
While it is Abbott's management prerogative to promulgate its

own company rules and even subsequently amend them, this right
equally demands that when it does create its own policies and
thereafter notify its employees of the same, it accords upon itself the
obligation to faithfully implement them. Indeed, a contrary
interpretation would entail a disharmonious relationship in the work
place for the laborer should never be mired by the uncertainty of flimsy
rules in which the latter's labor rights and duties would, to some
extent, depend. 10 [footnotes in the original omitted]
Internal processes, however, cannot be dissociated from the substance

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

inadequacies is not without significance in terms of the present case as a
whole. Notably, the above quotation expressly and impliedly admits that no
effort at all was ever made for the conduct of an assessment or evaluation of
the respondent's performance; in fact, no performance evaluation forms appear
to have been submitted by the company. The dearth of evidence on this point
(described by the ponencia as a "hiatus of evidence") is completely consistent
with what the ponencia explicitly and impliedly admits from the very beginning:
there was no evidence of any performance standard furnished the
respondent so that the ponencia could only deduce the existence of
performance standards from its assumptions and stretched
rationalizations; much less was there any communication of
performance standards qua performance standards, as this is a matter
that was also assumed.
I draw attention, too, to another unusual feature of this case indicating,
not only the omissions that the ponencia already cited, but the implication as
well that the respondent had been singled out for special treatment by the
petitioner officers. At the very least, this incident indicates that the petitioner
did not apply the same standards and processes to the respondent's work. The
petitioner's prescribed procedure was narrated in an earlier version of the
ponencia in this wise:
On April 20, 2005, Alcaraz had a meeting with petitioner Cecille
Terrible (Terrible), Abbott's former HR Director, to discuss certain
issues regarding staff performance standards. In the course . . .
thereof, Alcaraz accidentally saw a printed copy of an e-mail sent by
Walsh to some staff members which essentially contained queries
regarding the former's job performance. Alcaraz asked if Walsh's
action was the normal process of evaluation. Terrible said that
it was not. 11 (emphasis ours)
This allegation by the respondent in this regard in her pleadings was

impliedly admitted by the petitioner when it failed to offer any refutation.
Interestingly, the above allegation was included in the narration of facts
of the Labor Arbiter, the NLRC, the CA and an earlier version of the
ponencia, although they arrived at two (2) different conclusions. aDSHCc
The respondent's unrefuted allegation was not considered at all in the

conclusions of the Labor Arbiter and of the ponencia. 12 On the other hand, the
NLRC and the CA concluded that a different performance standard and
evaluation process was applied to the respondent in light of the circumstances
of the case, gleaned from the evidence submitted. 13
In my view, the NLRC and the CA were not without basis in making their
conclusion as the incident, taken together with the facts supported by the
available evidence, is vital in appreciating the nature of the respondent's
employment.
Since the respondent, as the incident suggests, was bound by a different

set of standards and procedures, and since no evidence of record existed
showing what these standards were or that the required procedures were
observed, the petitioners' theory that the respondent was informed of, and was
evaluated pursuant to, the performance standards applicable to her position, is
effectively negated. This leads to the conclusion that the respondent,
from the beginning, had been a regular employee as a result of the
failure of Abbott's HR processes. A much simpler view, related this time to
the manner of her termination, is that the respondent was simply differently
treated.
B. "Just Cause" for Dismissal Must Exist

To justify the dismissal of an employee, the employer carries the burden
of proving that the dismissal was for a just cause and with the observance of
due process prior to dismissal. 14 The employer has to discharge this burden by
clear, accurate, consistent and convincing evidence; 15 in case of doubt, the
presumption in the employee's favor under Article 4 of the Labor Code should
apply.
II.B.1. The petitioner had no valid cause to dismiss the

respondent's employment
The respondent was dismissed as she "failed to qualify as regular
employee in accordance with the prescribed standards set by the Company." 16
Even granting for the sake of argument that the petitioner had apprised the
respondent of an applicable performance standard, the evidence failed to show
that the respondent did not meet this standard in a manner and to the extent
equivalent to the "just cause" that the law requires.
II.B.1(a). Just cause requirement for employees,
whether probationary or regular.
An important legal point that should not be lost in considering this case is
t h a t a probationary employee does not have lesser rights than a
regular employee under the Labor Code in terms of the just cause for
the termination of an employment. While the strict application of Article
282 of the Labor Code may be relaxed because the employee is still under
probation (so that analogous probationary status rules may apply), the same
essential just cause for dismissal must be present and must be proven. In other
words, probationary employment does not mean that the employee is under an
"employment at will" situation as that phrase is understood in American
jurisprudence. To reiterate, the fact that the respondent was still in her
probationary period of employment did not lessen the burden of proof that the
law imposed on the petitioners to prove the just cause for her dismissal. 17
Probationary employees are protected by the security of tenure provision of the
Constitution and they cannot be removed from their position except only for
cause. 18 DECSIT
II.B.1(b). The evidentiary status of the just cause for

dismissal
In the present case, the evidence did not show the just cause that Article
282 of the Labor Code requires. No evidence on record showed the commission
by the respondent of any of the following acts or omissions:
(a) Serious misconduct or willful disobedience by the employee

of the lawful orders of his employer or representative in
connection with his work;
(b) Gross and habitual neglect by the employee of his duties;

(c) Fraud or willful breach by the employee of the trust reposed
in him by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against

the person of his employer or any immediate member of his
family or his duly authorized representatives; and
(e) Other causes analogous to the foregoing.
On the contrary, the records disclose that the respondent performed her
duties under the guidance of the petitioner's management and worked in line
with the tasks assigned to her. 19 The petitioner's allegation of the respondent's
"poor performance" could not have been substantiated considering the lack of
any clear performance standard in evaluating the respondent's work. TaHIDS
II.B.2. The petitioner violated its own procedural

requirements in the performance evaluation
A first instance when the discussion related to "process" was with respect
to the communication of performance standards. This topic also relates to
process, but this time on the matter of the procedure to be taken in
performance evaluation: the petitioner failed to observe its own
procedural requirements in evaluating the respondent's probationary
employment.
The petitioner's prescribed procedure gives probationary employees two

(2) opportunities to meet and qualify for regularization. As mentioned before,
the reviews were aimed at informing the employees of their work performance
based on the petitioner's standard and on how they can improve it to qualify for
regularization. For reasons not disclosed in the records, the prescribed
procedure was not followed by the petitioner in the respondent's case. She was
immediately terminated from employment without having been evaluated and
without undergoing the evaluation process under the petitioner's prescribed
procedure.
While the petitioner's failure to observe its own procedures is not disputed
in the ponencia, the implication of Abbott's failure cannot simply be glossed
over. Abbott's non-compliance should be viewed from the point of fairness or
lack of it, that attended the respondent's dismissal. This circumstance should
be considered together with the other circumstances of the case, if only
because the petitioner's basic unfairness rendered doubtful the real cause in
the termination of her employment.
In other words, any deviation from the prescribed procedures must be

sufficiently explained to remove doubts on the genuineness of the cause of
dismissal. In this case, not only did the petitioner fail to observe its own
prescribed procedure; more importantly, it also failed to provide an
explanation on why the prescribed procedure was not followed in the
respondent's case. TcEAIH
Significantly, the NLRC appreciated all these in this case and this
appreciation was duly noted and evaluated by the CA. As there was in
fact basis in fact and in law in the NLRC's findings on this aspect of
the case, again the CA correctly found no grave abuse of discretion in
the NLRC's actions.
II.B.3. Violation of the Labor Code's procedural
requirements
Additionally, the petitioner failed to comply with the procedural due
process of the Labor Code when it terminated the respondent's employment.
The two-written notice requirement under Section 2, Rule XXIII, Book V of
the Omnibus Rules Implementing the Labor Code, as amended, was never
observed. To quote this provision:
Section 2. Standards of due process; requirements of
notice. — In all cases of termination of employment, the following
standards of due process shall be substantially observed:
I. For termination of employment based on just causes as defined
in Article 282 of the Code:
(a) A written notice served on the employee specifying
the ground or grounds for termination, and giving to said
employee reasonable opportunity within which to explain his
side;
(b) A hearing or conference during which the employee
concerned, with the assistance of counsel if the employee so desires, is
given opportunity to respond to the charge, present his evidence or
rebut the evidence presented against him; and
(c) A written notice of termination served on the

employee indicating that upon due consideration of all the
circumstance[s], grounds have been established to justify his
termination.
In case of termination, the foregoing notices shall be served on the

employee's last known address. [emphasis supplied] EIAHcC
The first notice is complied with when the employee is properly apprised
of the charges brought against him/her so that he/she can properly prepare for
his/her defense. 20 The second notice is complied with when the employee is
informed of the employer's intention to terminate the employment. 21 A formal
"trial-type" hearing, although preferred, is not absolutely necessary to satisfy
the employee's right to be heard. In Perez v. Philippine Telegraph and
Telephone Company , 22 the Court laid down the following guiding principles in
connection with the hearing requirement in dismissal cases:
a) "ample opportunity to be heard" means any meaningful

opportunity (verbal or written) given to the employee to
answer the charges against him and submit evidence in
support of his defense, whether in a hearing, conference or
some other fair, just and reasonable way.
b) a formal hearing or conference becomes mandatory only

when requested by the employee in writing or substantial
evidentiary disputes exist or a company rule or practice
requires it, or when similar circumstances justify it.
c) the "ample opportunity to be heard" standard in the Labor

Code prevails over the "hearing or conference" requirement
in the implementing rules and regulations.
From the records, the respondent received only one notice and was
not given ample opportunity to be heard before her employment was
terminated. The respondent was not served a first written notice indicating: (1)
the grounds for terminating her employment; and (2) a directive giving her the
opportunity to submit a written explanation within a reasonable period. Neither
was the respondent given the ample opportunity to be heard as required by
law. There was only compliance with the second notice requirement through
the petitioner's letter dated May 19, 2005 which was already a written notice of
termination of employment. 23 AHcaDC
In defense of Abbott's failure to observe the two-notice requirement, the

ponencia argues that a different procedure applies when terminating a
probationary employee; the usual two-notice requirement does not govern,
citing for this purpose Section 2, Rule I, Book VI of the Implementing Rules of
the Labor Code.
The ponencia, however, forgets that the single notice rule applies only if
the employee is validly on probationary basis; it does not apply where the
employee is deemed a regular employee for the company's failure to
provide and to communicate a prescribed performance standard
applicable to the probationary employee. The ponencia itself admits that
in such a case, the employee would then be a regular employee. Since the
petitioner utterly failed to support by evidence its compliance with the legal
requirements on performance standards, the two-notice requirement for regular
employees must perforce fully apply.
C. The Consequences of the Respondent's Illegal Dismissal

The above analysis shows that the respondent had been illegally
dismissed from her employment. The petitioner failed to show that her
dismissal was for a valid cause. The petitioner also failed to respect the
respondent's procedural due process rights under the law.
As a consequence, the NLRC and the CA, thereafter, correctly ordered the
respondent's reinstatement and the payment of the monetary awards of
backwages, moral damages, exemplary damages and attorney's fees. The CA
and the NLRC also correctly held that the individual petitioners ( i.e., the
corporate officers of the petitioner) should be solidarily liable with the petitioner
for the respondent's monetary awards. AECacT
II.C.1. The recoverable reliefs

Article 279 of the Labor Code, as amended, provides the following awards
to an illegally dismissed employee:
Art. 279. Security of tenure. — In cases of regular
employment, the employer shall not terminate the services of an
employee except for a just cause or when authorized by this Title. An
employee who is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and other privileges and
to his full backwages, inclusive of allowances, and to his other benefits
or their monetary equivalent computed from the time his
compensation was withheld from him up to the time of his actual
reinstatement.
"By jurisprudence derived from [the above] provision, separation pay may
be awarded to an illegally dismissed employee in lieu of reinstatement." 24
Under Section 4 (b), Rule I of the Rules Implementing Book VI of the Labor
Code, separation pay is awarded, in lieu of reinstatement, to an illegally
dismissed employee when reinstatement is no longer possible, i.e., when the
dismissed employee's position is no longer available, or the continued
relationship between the employer and the employee would no longer be viable
due to the strained relations between them, or when the dismissed employee
opts not to be reinstated, or when the payment of separation benefits would be
for the best interest of the parties involved.
"Thus, an illegally dismissed employee is entitled to two reliefs:

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

suffered
In addition to these basic awards, an illegally dismissed employee may
also be awarded moral and exemplary damages and attorney's fees .
Jurisprudence holds that moral and exemplary damages are awarded when the
illegal dismissal is attended by bad faith. 26 The Court has also ruled that
corporate officers are solidarily liable with the employer company for the
employees' termination of employment done with malice or bad faith. 27
A review of the facts of the case shows ample evidence supporting the
petitioner's bad faith, as shown by the manner in which the respondent's
employment was terminated. The NLRC, in its decision, exhaustively discussed
the petitioner's bad faith, as demonstrated by the actions of the individual
petitioners: AEaSTC
The records show that complainant-appellant's dismissal was effected

by individual respondents-appellees in a capricious and high-handed
manner, anti-social and oppressive, fraudulent and in bad faith, and
contrary to morals, good customs and public policy. Bad faith and
fraud are shown in the acts committed by respondents-appellees
before, during and after complainant-appellant's dismissal in addition
to the manner by which she was dismissed. First, complainant-
appellant was pressured to resign: (1) she was threatened with
termination, which will surely damage her reputation in the
pharmaceutical industry; (2) she was asked to evacuate her
Commission and ordered not to enter the Company's premises even if
she was still an Abbott employee; and (3) individual respondents Ms.
Terrible and Ms. Walsh made a public announcement to the staff that
complainant-appellant already resigned even if in reality she did not.
All of which caused complainant-appellant much humiliation, serious
anxiety and besmirched reputation. 28

The CA also described in detail the abrupt and oppressive manner in
which the respondent's employment was dismissed by the petitioner:
On May 23, 2005, the private respondent still reported for work since
petitioner Abbott had not yet handed the termination notice to her.
However, the security guard did not allow her to enter the Hospira
ALSU office pursuant to Ms. Walsh['s] instruction. She requested Ms.
Walsh that she be allowed to enter the company premises to retrieve
her last remaining things in her office which are mostly her personal
belongings. She was allowed to enter. However, she was surprised to
see her drawers already unlocked and, when she opened the same,
she discovered that her small brown envelope . . ., white pouch
containing the duplicate keys, and the staff's final evaluation sheets
were missing. The private respondent informed Ms. Bernardo about
the incident. The latter responded by saying she was no longer an
employee of the company since May 19, 2005.
The private respondent reported the matter to the Pasig Police
Station and asked for help regarding the theft of her properties. The
Pasig Police incident report stated as follows: TSHIDa
xxx xxx xxx

When confronted by the suspect, in the presence of one
SOCO officer and staff, named Christian Perez. Kelly Walsh
allegedly admitted that she was the one who opened the drawer
and got the green folders containing the staff evaluations. The
Reportee, was told by Kelly Walsh that her Rolex wristwatch will
be returned to her provided that she will immediately vacate her
office.
On the same date, the private respondent's termination letter
dated May 19, 2005 was handed to her by Ms. Walsh, Mr. Almazar and
Ms. Bernardo. On May 27, 2005, the private respondent received
another copy of the said termination notice via registered mail. 29
These explanations for the actions taken show that the NLRC's
recognition of the bad faith was not without basis and was in fact
supplemented by the CA in the appellate court's own confirmatory
explanation.
D. Application of the Rule 45 Standard of Review

Under the evidentiary situation that prevailed in this case as described
above in some detail, an expression of wonder cannot be helped, particularly
on how the ponencia could conclude that the CA committed a reversible error
when it found no grave abuse of discretion in the NLRC's actions on the case. In
contrast with the findings of the Labor Arbiter, the findings and conclusions of
the NLRC, as affirmed on a Rule 65 review by the CA, were based on the law
and jurisprudence as properly applied to the established set of facts and
evidence. DSHcTC
First, while the respondent, from the petitioner's standpoint, was hired as
a probationary employee, she was deemed a regular employee pursuant to the
clear provisions of Article 281 of the Labor Code, as amended and Section 6 (d)
of the Implementing Rules of Book VI, Rule I of the Labor Code, as amended.
The evidence adduced failed to show that the petitioner ever apprised the
respondent at the time of her engagement of the standards she must meet to
qualify for regular employment.
Second, the respondent's termination from employment had no basis in
fact and in law. Since the records failed to support the petitioner's allegation
that the respondent's alleged poor performance and tardiness were proven by
evidence and, in fact, fell within the enumeration in Article 281 and Article 282
of the Labor Code, reason dictates that the present petition be denied.
At the risk of repetition, the adduced evidence, in the first place, did not
prove that the respondent's work failed to comply with the petitioner's
performance standard as no proof of the performance standard applied to the
respondent's work was actually presented. The respondent's employment was
also terminated without undergoing any performance evaluation.
The evidence adduced did not also prove any act of omission under
Article 282 of the Labor Code committed by the respondent. No evidence was
presented on the respondent's actual work so as to determine whether her
acts/omissions constituted a just cause for termination, such as serious
misconduct or gross or habitual neglect of duty or any other analogous cause
to the just causes mentioned in the law.
As the records show, neither was there compliance with the respondent's
own internal procedures nor with the law's procedural due process. The
respondent was not served the two-notice required by law before her
employment was terminated by the petitioner.
Third, the NLRC's monetary awards, as affirmed by the CA, were

appropriate consequences of the respondent's illegal dismissal from
employment. The payment of the respondent's backwages and the order of
reinstatement were consistent with the provisions of Article 279 of the Labor
Code. Jurisprudence also provides the award of moral and exemplary damages,
as well as attorney's fees, when bad faith is proven in the termination of
employment.
In this case, the bad faith exhibited by the individual petitioners was
clearly established in the records. The individual petitioners' bad faith was
demonstrated by the evidence of how they unfairly effected the termination of
the respondent's employment.
The narration of facts of the Labor Arbiter, the NLRC and the CA shows,
among others, that: (1) the individual petitioners did not follow the petitioner's
prescribed procedure performance evaluation as, in fact, the respondent's work
was not evaluated; (2) the individual petitioners, through their concerted
actions, ganged up on the respondent in forcing her to resign from
employment; (3) the individual petitioners pressured the respondent to resign
by announcing her resignation to the office staff, thereby subjecting her to
unwarranted humiliation; and (4) they blackmailed the respondent by
withholding her personal possessions until she resigned from employment. HcDSaT
Bad faith can also be inferred from the lack of fairness and
underhandedness employed by the individual petitioners on how they informed
the respondent of the termination of her employment. The records disclose that
the respondent was lured into a meeting on the pretext that her work
performance was to be evaluated; she was caught off-guard when she was
informed that her employment had been terminated. Aside from the abrupt
notification, bad faith can also be deduced from the fact that the termination
was made immediately effective; the respondent was immediately banned from
the petitioner's premises after she was informed that her employment had
been terminated.
To my mind, the NLRC correctly ruled that the individual petitioners were
solidarily liable, together with the petitioner, to pay the monetary awards. The
cited circumstances constitute sufficient evidence of their bad faith in
terminating the respondent's employment. Verily, corporate officers are
solidarily liable with the corporation to pay monetary awards in illegal dismissal
cases when their bad faith is established in the termination of the employment.
III. Conclusion
I close this Dissent with the note that the constitutional protection of
security of tenure is a right enjoyed by every employee. Employment,
regardless of the employment status, may only be terminated for cause and
within the procedure prescribed by law and jurisprudence. A review of the
records shows that no reversible error was committed by the CA in finding the
NLRC free from any taint of grave abuse of discretion in ruling on the
respondent's illegal dismissal. This conclusion is what the Court should reflect in
its Decision if it is to discharge in good faith its duty to adjudicate.HIAcCD
Footnotes
1.Rollo (G.R. No. 192571), pp. 14-58.
2.Id. at 1040-1054. Penned by Associate Justice Isaias Dicdican, with Associate
Justices Remedios A. Salazar-Fernando and Romeo F. Barza, concurring.
3.Id. at 1139-1140.
4.Id. at 74.
5.Id. at 75-76.
6.Id. at 51-52. Based on Abbott's organizational structure, the Regulatory Affairs

Manager was under the umbrella of Hospira ALSU, a sub-department in
Abbott's Hospital Care Division. ALSU serves as a transition body of Hospira,
Inc., a corporation based in the United States of America, while it is in the
process of organization in the Philippines. Abbott intended to cede the
qualified employees under ALSU to Hospira once the latter obtained its own
legal personality to engage in business in the Philippines.
7.Id. at 165-168. Abbott sent Alcaraz an initial offer sheet on December 1, 2004.
The compensation contained therein was re-negotiated and thus, the
increased offer as per the offer sheet dated December 7, 2004.
8.Id. at 167-168.
9.Id. at 127, 169-172.
10.Id. at 174.
11.Id. at 127-128.
12.Id. at 1042-1043.
13.Id.
14.Id. at 1044.
15.Id.
16.Id.
17.Id. at 1044-1045.
18.Id. at 1045.
19.Id.
20.Id. at 1046.
21.Id. at 1047.
22.Id. at 19-21, 78, and 80-81.
23.Id. at 1047.
24.Id. at 255. See Labor Arbiter (LA) Decision dated March 30, 2006.
25.Formerly, Article 281 of the Labor Code; renumbered pursuant to Republic Act
No. 10151.
26.Rollo (G.R. No. 192571), p. 267.

27.Id. at 261-262.
28.Id. at 263-267.
29.Id. at 255-274. Penned by Labor Arbiter Jovencio Ll. Mayor, Jr.
30.Id. at 269.
31.Id. at 270.
32.Id. at 271-272.
33.Id. at 273.
34.Id. at 356-378. Penned by Commissioner Romeo L. Go, with Commissioners
Benedicto Ernesto R. Bitonio, Jr. (on leave) and Perlita B. Velasco, concurring.
35.Id. at 377-378.
36.Id. at 367.
37.Id. at 368.
38.Id. at 369.
39.Id. at 370-373.
40.Id. at 413-416. Penned by Commissioner Romeo L. Go, with Presiding
Commissioner Gerardo C. Nograles and Commissioner Perlita B. Velasco,
concurring.
41.Id. at 417-450.
42.Id. at 1403.
43.Id.
44.Id. at 1040-1054.
45.Id. at 1052.
46.Id.
47.Id. at 1053.
48.Id. at 1139-1140.
49.Id. at 1218.
50.Id.
51.Id. at 1219.
52.Rollo (G.R. No. 193976), p. 30.

53.Rollo (G.R. No. 192571), pp. 1223-1228.
54.Id. at 1224.
55.433 Phil. 490, 501-502 (2002).
56.Id. at 501-502. (Citations omitted)

57.Republic v. Mangotara, G.R. Nos. 170375, 170505, 173355-56, 173401, 173563-
64, 178779 & 178894, July 7, 2010, 624 SCRA 360, 428, citing NBI-Microsoft
Corporation v. Hwang, 499 Phil. 423, 435-436 (2005).
58.Sec. 5. Certification against forum shopping. — The plaintiff or principal party
shall certify under oath in the complaint or other initiatory pleading asserting
a claim for relief, or in a sworn certification annexed thereto and
simultaneously filed therewith: (a) that he has not theretofore commenced
any action or filed any claim involving the same issues in any court, tribunal
or quasi-judicial agency and, to the best of his knowledge, no such other
action or claim is pending therein; (b) if there is such other pending action or
claim, a complete statement of the present status thereof; and (c) if he
should thereafter learn that the same or similar action or claim has been filed
or is pending, he shall report that fact within five (5) days therefrom to the
court wherein his aforesaid complaint or initiatory pleading has been filed.
xxx xxx xxx

59.Robinsons Galleria/Robinsons Supermarket Corporation v. Ranchez , G.R. No.
177937, January 19, 2011, 640 SCRA 135, 142.
60.Id.
61.Id. at 145.
62.495 Phil. 706, 716-717 (2005).
63.Rollo (G.R. No. 192571), p. 1201.
64.Id. at 367-368, 370.

65.Refers to the procedure stated in Article 291 (b) of the Labor Code, as
renumbered pursuant to Republic Act No. 10151, viz.:
Article 291. Miscellaneous Provisions. —
xxx xxx xxx
(b) Subject to the constitutional right of workers to security of tenure and
their right to be protected against dismissal except for a just and authorized
cause and without prejudice to the requirement of notice under Article 283 of
this Code, the employer shall furnish the worker whose employment is
sought to be terminated a written notice containing a statement of the cause
for termination and shall afford the latter ample opportunity to be heard and
to defend himself with the assistance of his representative if he so desires in
accordance with company rules and regulations promulgated pursuant to
guidelines set by the Department of Labor and Employment.
xxx xxx xxx

This procedure is also found in Section 2 (d), Rule I, Book VI of the Omnibus
Rules Implementing the Labor Code which state:
xxx xxx xxx
(d) In all cases of termination of employment, the following standards of

due process shall be substantially observed:
For termination of employment based on just causes as defined in Article 282

[now, Article 296] of the Labor Code:
(i) A written notice served on the employee specifying the ground or
grounds for termination, and giving said employee reasonable opportunity
within which to explain his side.
(ii) A hearing or conference during which the employee concerned, with the
assistance of counsel if he so desires is given opportunity to respond to the
charge, present his evidence, or rebut the evidence presented against him.
(iii) A written notice of termination served on the employee, indicating that
upon due consideration of all the circumstances, grounds have been
established to justify his termination.
66.Rollo , pp. 78-81.
67.Id. at 1047.
68.170 S.W.3d 354 (Ky. 2005).

69.Rollo (G.R. No. 192571), p. 1052.
70.Id. at 1043.
71.G.R. No. 158693, November 17, 2004, 442 SCRA 573.
72.Id. at 616.
73.Id. at 620.
74.494 Phil. 114, 119-121 (2005).
75.Id. at 121.
76.Id. at 122.
77.Supra note 71, at 605.
78.Id. at 617.
79.Article 2221. Nominal damages are adjudicated in order that a right of the
plaintiff, which has been violated or invaded by the defendant, may be
vindicated or recognized, and not for the purpose of indemnifying the plaintiff
for any loss suffered by him.
80.Carag v. NLRC, 548 Phil. 581, 605 (2007), citing McLeod v. NLRC, 541 Phil. 214,
242 (2007).
81.Rollo (G.R. No. 192571), pp. 262, 1046.
BRION, J., dissenting:
1.The following explanation was made in my Rejoinder to Reply (On the manner
of reviewing a Court of Appeals Labor Ruling) that was submitted to the Court
En Banc in the course of the exchanges on this aspect of the case. The
explanation distinguished between appealable cases and those that, while
not appealable, can still be reviewed through a Rule 65 petition for certiorari.
"For a full understanding of these distinctions, it must be kept in mind that
several levels of review may exist for rulings emanating from the lowest
levels of adjudication before they reach the Supreme Court. The ruling of an
inferior court or tribunal (for example, the Regional Trial Court [RTC] ) is first
reviewed by an appellate court (the CA) on questions of fact or mixed
questions of fact and law; the CA decision may then in turn be reviewed by
the Supreme Court under Rule 45.
Generally, two types of decisions or rulings may be brought to the appellate
courts for review and decision; the appellate courts' decisions are in turn
subject to review by the Supreme Court.
The first type relates to cases that come to the appellate court by way of
appeal (e.g., the ruling of the RTC in the exercise of its original jurisdiction
that is appealed to the CA on issues of facts and law under Rule 41 of the
Rules of Court). The second type involves the review by the CA of decisions
of inferior courts or tribunals whose rulings, by law , are final and executory
(e.g., the ruling of the National Labor Relations Commission [NLRC] that
under the Labor Code is final and executory). This is the review of rulings
that, by law, is not appealable and thus can only be made on limited
jurisdictional grounds.
A CA ruling under the first type can be challenged by the aggrieved party
before the Supreme Court through a petition for review on certiorari under
Rule 45 of the Rules of Court. Under Rule 45, the review is only on questions
of law unless a review of questions of fact is allowed under the terms
established by jurisprudence. This is the case in the example given above —
an RTC ruling that is appealed to the CA on both factual and legal grounds
and which CA decision on appeal is now before the Supreme Court for further
review. This may be the model of a Supreme Court review that the ponente
might have had in mind in asserting that the Supreme Court should be able
to undertake a review of the full range of legal issues before it.
In the second type as exemplified above, a ruling by the NLRC, although final
and executory, may be brought to the CA under Rule 65 of the Rules of Court,
i.e., on a petition for certiorari, limited to jurisdictional grounds, usually for
grave abuse of discretion amounting to lack or excess of jurisdiction. The
final and executory nature of the NLRC decision under review can best be
appreciated when it is considered that the decision can immediately be
implemented unless a temporary restraining order or injunction is issued by
the CA; the Rule 65 mode of review is rendered necessary because the
decision or ruling under review, by law, is already final. Finality means that
the decision is no longer appealable and may be reviewed only when the
ruling is void because of jurisdictional defects."
2.356 Phil. 811 (1998).
3.G.R. No. 183329, August 27, 2009, 597 SCRA 334.
4.Id. at 342-343.
5.Rejoinder to Reply, supra, at Note 1.
6.Decision, at page 12.
7.Rollo , p. 174.
8.Id. at 77.
9.See Article 281 of the Labor Code, as amended.
10.Decision, at pp. 16-17.
11.Pages 4-5 of the ponencia.

12.Ibid. ; rollo, pp. 260 and 271.
13.Rollo , pp. 1044-1045.
14.Aliling v. Feliciano , G.R. No. 185829, April 25, 2012, 671 SCRA 186, 205.
15.Ibid.
16.Rollo , p. 78.
17.Aberdeen Court, Inc. v. Agustin, Jr., 495 Phil. 706, 712 (2005).
18.Ibid.
19.See page 4 of the ponencia.
20.Dolores T. Esguerra v. Valle Verde Country Club, Inc., et al. , G.R. No. 173012,
June 13, 2012.
21.Ibid.
22.G.R. No. 152048, April 7, 2009, 584 SCRA 110, 127.
23.Rollo , p. 78.
24.Session Delights Ice Cream and Fast Foods v. Court of Appeals (Sixth Division) ,
G.R. No. 172149, February 8, 2010, 612 SCRA 10, 25, citing Mt. Carmel
College v. Resuena, G.R. No. 173076, October 10, 2007, 535 SCRA 518, 541.
25.Macasero v. Southern Industrial Gases Philippines , G.R. No. 178524, January 30,
2009, 577 SCRA 500, 507.
26.Nazareno v. City of Dumaguete, G.R. No. 177795, June 19, 2009, 590 SCRA 110,
141-142. See also Civil Code, Articles 2208, 2217, 2219 and 2232.
27.MAM Realty Development Corporation v. NLRC, G.R. No. 114787, June 2, 1995,
244 SCRA 797, 803.
28.Rollo , pp. 375-376.
29.Id. at 1046-1047.

Abbott Laboratories, Phils. v. Alcaraz

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Abbott Laboratories, Phils. v. Alcaraz

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EN BANC

[G.R. No. 192571. July 23, 2013.]

ABBOTT LABORATORIES, PHILIPPINES, CECILLE A.

On June 27, 2004, petitioner Abbott Laboratories, Philippines (Abbott)

On February 12, 2005, Alcaraz signed an employment contract which

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Position Title : Regulatory Affairs Manager

The terms of your employment are:

February 15, 2005 to August

Basic Salary : P110,000.00/month

It is understood that you agree to abide by all existing policies, rules

Unless renewed, probationary appointment expires on the date

If you agree to the terms and conditions of your employment, please

Sgd. EDWIN D. FEIST

Sgd. PEARLIE ANN FERRER-ALCARAZ

During Alcaraz's pre-employment orientation, petitioner Allan G. Almazar

On March 3, 2005, petitioner Maria Olivia T. Yabut-Misa (Misa), Abbott's

On May 17, 2005, Alcaraz told her administrative assistant, Claude

On the contrary, petitioners maintained that Alcaraz was validly

The NLRC Ruling

On September 15, 2006, the NLRC rendered a Decision, 34 annulling and

b. 13th month pay - 110,000.00

4. Respondents are ordered to pay complainant moral

6. All other claims are dismissed for lack of merit.

Petitioners ﬁled a motion for reconsideration which was denied by the

Meanwhile, petitioners' motion for reconsideration of the CA's May 18,

The Court's Ruling

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Corollary thereto, Section 6 (d), Rule I, Book VI of the Implementing Rules

The exception to the foregoing is when the job is self-descriptive in

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A punctilious examination of the records reveals that Abbott had indeed

(a) On June 27, 2004, Abbott caused the publication in a major

(b) In Abbott's December 7, 2004 oﬀer sheet, it was stated that

(d) On the day Alcaraz accepted Abbott's employment oﬀer, Bernardo

(e) Alcaraz was made to undergo a pre-employment orientation

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In ﬁne, the Court rules that Alcaraz's status as a probationary employee

As the records show, Alcaraz's dismissal was eﬀected through a letter

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

Hence, given such nature, company personnel policies create an

In this case, it is apparent that Abbott failed to follow the above-stated

While it is Abbott's management prerogative to promulgate its own

In Agabon v. NLRC (Agabon), 71 the Court pronounced that where the

It was explained that if the dismissal is based on a just cause under

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WHEREFORE, the petition is GRANTED. The Decision dated December

Sereno, C.J., Carpio, Velasco, Jr., Leonardo-de Castro, Peralta, Bersamin,

A. The Issues Posed

C. The Rulings Below

Discussion of the Issues

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(1) Ascertaining the correctness of the CA's decision in ﬁnding

II. The Substantive Issues

Article 281 of the Labor Code, as amended, provides:

xxx xxx xxx

To sum up these provisions, a valid probationary employment requires

From these preliminary take-oﬀ points in the ponencia's

In this case, the ponencia simply disregarded the plain import of

II.A.2.The respondent should be deemed a regular employee

In the context of this case, an initial determination of how the

The respondent was indisputably initially hired as a probationary

II.A.2(a).No specific employment standard on record.