9. ABBOT LABORATORIES VS.
ALCARAZ under Article 295 of the Labor Code, i.e., the probationary employee may also be
ABBOTT LABORATORIES, PHILIPPINES, CECILLE A. TERRIBLE,
EDWIN D. FEIST, MARIA OLIVIA T. YABUTMISA, TERESITA C.
BERNARDO, AND ALLAN G. ALMAZAR, petitioners, vs. PEARLIE ANN F.
ALCARAZ, respondent.
Remedial Law; Civil Procedure; Forum Shopping; Certification Against
Forum Shopping; The prohibition against forum shopping is different from a
violation of the certification requirement under Section 5, Rule 7 of the Rules of
Court.—At the outset, it is noteworthy to mention that the prohibition against forum
shopping is different from a violation of the certification requirement under Section 5,
Rule 7 of the Rules of Court. In Sps. Ong v. CA, 384 SCRA 139 (2002), the Court
explained that: x x x The distinction between the prohibition against forum shopping
and the certification requirement should by now be too elementary to be
misunderstood. To reiterate, compliance with the certification against forum
shopping is separate from and independent of the avoidance of the act of forum
shopping itself. There is a difference in the treatment between failure to comply with
the certification requirement and violation of the prohibition against forum shopping
not only in terms of imposable sanctions but also in the manner of enforcing them.
The former constitutes sufficient cause for the dismissal without prejudice [to the
filing] of the complaint or initiatory pleading upon motion and after hearing, while
the latter is a ground for summary dismissal thereof and for direct contempt.
Same; Same; Same; Forum shopping takes place when a litigant files multiple
suits involving the same parties, either simultaneously or successively, to secure a
favorable judgment.—Forum shopping takes place when a litigant files multiple suits
involving the same parties, either simultaneously or successively, to secure a favorable
judgment. It exists where the elements of litis pendentia are present, namely: (a)
identity of parties, or at least such parties who represent the same interests in both
actions; (b) identity of rights asserted and relief prayed for, the relief being founded
on the same facts; and (c) the identity with respect to the two preceding particulars in
the two (2) cases is such that any judgment that may be rendered in the pending case,
regardless of which party is successful, would amount to res judicata in the other
case.
Same; Same; Same; Section 5(b), Rule 7 of the Rules of Court requires that a
plaintiff who files a case should provide a complete statement of the present status of
any pending case if the latter involves the same issues as the one that was filed.—
Section 5(b), Rule 7 of the Rules of Court requires that a plaintiff who files a case
should provide a complete statement of the present status of any pending case if the
latter involves the same issues as the one that was filed. If there is no such similar
pending case, Section 5(a) of the same rule provides that the plaintiff is obliged to
declare under oath that to the best of his knowledge, no such other action or claim is
pending.
Labor Law; Probationary Employees; A probationary employee, like a
regular employee, enjoys security of tenure. However, in cases of probationary
employment, aside from just or authorized causes of termination, an additional
ground is provided under Article 295 of the Labor Code, i.e., the probationary
employee may also be terminated for failure to qualify as a regular employee in
accordance with the reasonable standards made known by the employer to the
employee at the time of the engagement.—A probationary employee, like a regular
employee, enjoys security of tenure. However, in cases of probationary employment,
aside from just or authorized causes of termination, an additional ground is provided
terminated for failure to qualify as a regular employee in accordance with the
reasonable standards made known by the employer to the employee at the time of the
engagement. Thus, the services of an employee who has been engaged on
probationary basis may be terminated for any of the following: (a) a just or (b) an
authorized cause; and (c) when he fails to qualify as a regular employee in accordance
with reasonable standards prescribed by the employer.
Same; Same; If the employer fails to inform the probationary employee of the
reasonable standards upon which the regularization would be based on at the time
of the engagement, then the said employee shall be deemed a regular employee.—
Section 6(d), Rule I, Book VI of the Implementing Rules of the Labor Code provides
that if the employer fails to inform the probationary employee of the reasonable
standards upon which the regularization would be based on at the time of the
engagement, then the said employee shall be deemed a regular employee, viz.: (d) In
all cases of probationary employment, the employer shall make known to the
employee the standards under which he will qualify as a regular employee at the time
of his engagement. Where no standards are made known to the employee at that time,
he shall be deemed a regular employee. In other words, the employer is made to
comply with two (2) requirements when dealing with a probationary employee: first,
the employer must communicate the regularization standards to the probationary
employee; and second, the employer must make such communication at the time of
the probationary employee’s engagement. If the employer fails to comply with either,
the employee is deemed as a regular and not a probationary employee.
Same; Same; An employer is deemed to have made known the standards that
would qualify a probationary employee to be a regular employee when it has
exerted reasonable efforts to apprise the employee of what he is expected to do or
accomplish during the trial period of probation.—An employer is deemed to have
made known the standards that would qualify a probationary employee to be a regular
employee when it has exerted reasonable efforts to apprise the employee of what he is
expected to do or accomplish during the trial period of probation. This goes without
saying that the employee is sufficiently made aware of his probationary status as well
as the length of time of the probation. The exception to the foregoing is when the job
is self-descriptive in nature, for instance, in the case of maids, cooks, drivers, or
messengers. Also, in Aberdeen Court, Inc. v. Agustin, 456 SCRA 32 (2005), it has
been held that the rule on notifying a probationary employee of the standards of
regularization should not be used to exculpate an employee who acts in a manner
contrary to basic knowledge and common sense in regard to which there is no need to
spell out a policy or standard to be met. In the same light, an 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 nonregularization.
Same; Same; 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.—
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.
Same; Same; If the termination is brought about by the failure of an employee
to meet the standards of the employer in case of probationary employment, it shall
be sufficient that a written notice is served the employee, within a reasonable time
from the effective date of termination.—A different procedure is applied when
terminating a probationary employee; the usual two-notice rule does not govern.
Section 2, Rule I, Book VI of the Implementing Rules of the Labor Code states that
“[i]f the termination is brought about by the x x x failure of an employee to meet the
standards of the employer in case of probationary employment, it shall be sufficient
that a written notice is served the employee, within a reasonable time from the
effective date of termination.”
Same; Company Policy; A company policy partakes of the nature of an
implied contract between the employer and employee.— A company policy partakes
of the nature of an implied contract between the employer and employee. In Parts
Depot, Inc. v. Beiswenger, 170 S.W.3d 354 (Ky. 2005), it has been held that:
[E]mployer statements of policy . . . can give rise to contractual rights in employees
without evidence that the parties mutually agreed that the policy statements would
create contractual rights in the employee, and, hence, although the statement of policy
is signed by neither party, can be unilaterally amended by the employer without
notice to the employee, and contains no reference to a specific employee, his job
description or compensation, and although no reference was made to the policy
statement in 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.
Same; Termination of Employment; Nominal Damages; Case law has settled
that an employer who terminates an employee for a valid cause but does so through
invalid procedure is liable to pay the latter nominal damages.—Case law has settled
that an employer who terminates an employee for a valid cause but does so through
invalid procedure is liable to pay the latter nominal damages. In Agabon v. NLRC
(Agabon), 442 SCRA 573 (2004), the Court pronounced that where the dismissal is
for a just cause, the lack of statutory due process should not nullify the dismissal, or
render it illegal, or ineffectual. However, the employer should indemnify the employee
for the violation of his statutory rights. Thus, in Agabon, the employer was ordered to
pay the employee nominal damages in the amount of P30,000.00.
Same; Same; If the dismissal is based on a just cause under Article 282 of the
Labor Code (now Article 296) but the employer failed to comply with the notice
requirement, the sanction to be imposed upon him should be tempered because the
dismissal process was, in effect, initiated by an act imputable to the employee; if the
dismissal is based on an authorized cause under Article 283 (now Article 297) but
the employer failed to comply with the notice requirement, the sanction should be
stiffer because the dismissal process was initiated by the employer’s exercise of his
management prerogative.—It was explained that if the dismissal is based on a just
cause under Article 282 of the Labor Code (now Article 296) but the employer failed
to comply with the notice requirement, the sanction to be imposed upon him should
be tempered  because the dismissal process was, in effect, initiated by an act
imputable to the employee; if the dismissal is based on an authorized cause under
Article 283 (now Article 297) but the employer failed to comply with the notice
requirement, the sanction should be stiffer because the dismissal process was
initiated by the employer’s exercise of his management prerogative. Hence, in Jaka,
where the employee was dismissed for an authorized cause of retrenchment — as
contradistinguished from the employee in Agabon who was dismissed for a just cause
of neglect of duty — the Court ordered the employer to pay the employee nominal
damages at the higher amount of P50,000.00.
Corporation Law; Liability of Corporate Directors; Requisites to Hold
Corporate Directors, Trustees or Officers Personally Liable for Corporate Acts.—It is
hornbook principle that personal liability of corporate directors, trustees or officers
attaches only when: (a) they assent to a patently unlawful act of the corporation, or
when they are guilty of bad faith or gross negligence in directing its affairs, or when
there is a conflict of interest resulting in damages to the corporation, its stockholders
or other persons; (b) they consent to the issuance of watered down stocks or when,
having knowledge of such issuance, do not forthwith file with the corporate secretary
their written objection; (c) they agree to hold themselves personally and solidarily
liable with the corporation; or (d) they are made by specific provision of law
personally answerable for their corporate action.688
688 SUPREME COURT REPORTS ANNOTATED
Abbott Laboratories, Philippines vs. Alcaraz
 
Civil Law; Bad Faith; It is a well-settled rule that bad faith cannot be
presumed and he who alleges bad faith has the onus of proving it.—A judicious
perusal of the records show that other than her unfounded assertions on the matter,
there is no evidence to support the fact that the individual petitioners herein, in their
capacity as 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.
BRION, J., Dissenting Opinion:
Labor Law; Appeals; View that a labor case finds its way into the judicial
system from the National Labor Relations Commission (NLRC) whose decision is
final and executory; When an administrative ruling (or any ruling for that matter)
is already final and unappealable, the only recourse open under the Rules of Court is
through a limited review on jurisdictional grounds under Rule 65.—A labor case
finds its way into the judicial system from the NLRC whose decision is final and
executory. Finality simply means that the NLRC ruling is no longer appealable;
the legal intent is to confine adjudication of labor cases to labor tribunals with the
expertise in these cases and thereby bring the resolution of the case to a close at the
soonest possible time. When an administrative ruling (or any ruling for that matter) is
already final and unappealable, the only recourse open under the Rules of Court is
through a limited review on jurisdictional grounds under Rule 65. This has
been the mode of review followed since the Labor Code took effect in November 1974;
labor cases were directly brought to this Court but only on jurisdictional grounds
under Rule 65.
Same; Same; View that under Section 65 of the Rules of Court, the sole ground
or issue allowed is jurisdictional — the presence or absence of grave abuse of
discretion on the part of the National Labor Relations Commission (NLRC) in ruling
on the case; whereas, a Rule 45 review the Supreme Court simply determines
whether the legal correctness of the Court of Appeal’s finding that the NLRC ruling
of illegal dismissal had basis in fact and in law.—Under the Rule 65 review by
the CA, Montoya reiterates that the sole ground or issue allowed
is jurisdictional – the presence or absence of grave abuse of discretion on the part
of the NLRC in ruling on the case. To state the obvious, this kind of review would
have made it easier for the CA to handle the case; in the absence of a grave abuse of
discretion, it can dismiss labor cases for lack of grave abuse of discretion as we do in
this Court. From the CA, further recourse is through a Rule 45 review by this
Court on questions of law in accordance with prevailing rulings. The office of a
petition for review on certiorari is not to examine and settle factual
questions already ruled upon below. In this review, the Court simply determines
whether the legal correctness of the CA’s finding that the NLRC ruling of
illegal dismissal had basis in fact and in law.
Same; Probationary Employees; View that while the respondent might have
been hired as a probationary employee, the petitioner’s evidence did not establish
the employers’ compliance with the probationary employment requirements under
Article 281 of the Labor Code (as amended) and Section 6(d) of the Implementing
Rules of Book VI, Rule I of the Labor Code (as amended). Thus, the respondent
should be considered a regular employee and the case should be reviewed on this
basis.—While the respondent might have been hired as a probationary employee, the
petitioners’ evidence did not establish the employers’ compliance with
the probationary employment requirements under Article 281 of the
Labor Code (as amended) and Section 6(d) of the Implementing Rules of
Book VI, Rule I of the Labor Code (as amended). Thus, the respondent should
be considered a regular employee and the case should be reviewed on this basis.
Article 281 of the Labor Code, as amended, provides: ART. 281. Probationary
employment.—Probationary employment shall not exceed six (6) months from the
date the employee started working, unless it is covered by an apprenticeship
agreement stipulating a longer period. The services of an employee who has been
engaged on a probationary basis may be terminated for a just cause or when he fails to
qualify as a regular employee in accordance with reasonable standards made
known by the employer to the employee at the time of his engagement.  An
employee who is allowed to work after a probationary period shall be considered a
regular employee. [italics supplied; emphasis ours] Further, Section 6(d) of the
Implementing Rules of Book VI, Rule I of the Labor Code, as amended, states: Sec.
6. Probationary employment.—There is probationary employment where the
employee, upon his engagement, is made to undergo a trial period during which the
employer determines his fitness to qualify for regular employment, based
on reasonable standards made known to him at the time of
engagement. [emphasis supplied]
Same; Same; View that a valid probationary employment requires the
concurrence of two requirements; Failing in one or both, the employee, even if
initially hired as a probationary employee, should be viewed and considered a
regular employee.—A valid probationary employment requires the concurrence of
two requirements. First, the employer shall make known the reasonable
standard (performance standard) whose compliance will render the employee
qualified to be a regular employee. Second, the employer shall inform the employee
of the applicable performance standard at the time of his/her
engagement. Failing in one or both, the employee, even if initially hired as a
probationary employee, should be viewed and considered a regular employee.
The ponencia apparently fully agrees with the above statement of the applicable law
as it substantially recites the same requirements, including the consequence that upon
failure to comply with these same requirements, “the employee is deemed as a
regular and not a probationary employee.” It continues, however, with a twist that
effectively negates what it has stated and admitted about the need to communicate the
regularization standards to the employee.
Same; Termination of Employment; View that to justify the dismissal of an
employee, the employer carries the burden of proving that the dismissal was for a
just cause and with the observance of due process prior to dismissal.—To justify the
dismissal of an employee, the employer carries the burden of proving that the
dismissal was for a just cause and with the observance of due process prior to
dismissal. The employer has to discharge this burden by clear, accurate, consistent
and convincing evidence; in case of doubt, the presumption in the employee’s favor
under Article 4 of the Labor Code should apply.691 
Same; Same; View that a probationary employee does not have lesser rights
than a regular employee under the Labor Code in terms of the just cause for the
termination of an employment.—An important legal point that should not be lost in
considering this case is that a probationary employee does not have lesser
rights than a regular employee under the Labor Code in terms of the just
cause for the termination of an employment. While the strict application of
Article 282 of the Labor Code may be relaxed because the employee is still under
probation (so that analogous probationary status rules may apply), the same essential
just cause for dismissal must be present and must be proven. In other words,
probationary employment does not mean that the employee is under an “employment
at will” situation as that phrase is understood in American jurisprudence. To
reiterate, the fact that the respondent was still in her probationary period of
employment did not lessen the burden of proof that the law imposed on the
petitioners to prove the just cause for her dismissal. Probationary employees are
protected by the security of tenure provision of the Constitution and they cannot be
removed from their position except only for cause.
PETITION for review on certiorari of the decision and resolution of the Court of
Appeals.
   The facts are stated in the opinion of the Court.
  Laguesma, Magsalin, Consulta & Gastardo for petitioner.
  Jimenez, Baroque and Salazar for respondent.
PERLAS-BERNABE,  J.:
Assailed in this petition for review on certiorari1 are the Decision2 dated
December 10, 2009 and Resolution3 dated June 9, 2010 of the Court of Appeals (CA)
in 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 abovementioned
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
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
PROBATIONARY EMPLOYMENT
Dear Pearl,
After having successfully passed the pre-employment requirements, you are
hereby appointed as follows:
Position Title          : Regulatory Affairs  Hospira ALSU staff.12
                                               Manager
Department            : Hospira
The terms of your employment are:
Nature of Employment    : Probationary
Effectivity             : February 15, 2005 to  month review in case of a gap between the employee’s performance and the standards
                                               August 14, 2005
Basic Salary          : P110,000.00/ month
It is understood that you agree to abide by all existing policies, rules and
regulations of the company, as well as those, which may be hereinafter
promulgated.  probationary period.
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; and (f) the processing of information and/or raw
material data subject of Hospira ALSU operations will be strictly confined and
controlled under the computer system and network being maintained and operated
from the United States. For this purpose, all those involved in Hospira ALSU are
required to use two identification cards: one, to identify them as Abbott’s employees
and another, to identify them as Hospira employees.11
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
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-
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
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
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
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 29525 of the Labor Code. In this relation,
she contended that while her employment contract stated that she was to be engaged
on a probationary status, the same did not indicate the standards on which her
regularization would be based.26 She further averred that the individual petitioners
maliciously connived to illegally dismiss her when: (a) they threatened her with
termination; (b) she was ordered not to enter company premises even if she was still
an employee thereof; and (c) they publicly announced that she already resigned in
order to humiliate her.27
On the contrary, petitioners maintained that Alcaraz was validly terminated from
her probationary employment given her failure to satisfy the prescribed standards for
her regularization which were made known to her at the time of her engagement. 28
The LA Ruling
In a Decision dated March 30, 2006,29 the LA dismissed 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 preemployment 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).
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
a.  Backwages for 15 months - PhP 1,650,000.00
 
b.  13th month pay         -          110,000.00
TOTAL     PhP 1,760,000.00
4.  Respondents are ordered to pay complainant moral damages of
P50,000.00 and exemplary damages of P50,000.00.
5.  Respondents are also ordered to pay attorney’s fees of 10% of the total
award.
6.  All other claims are dismissed for lack of merit.
SO ORDERED.35
The NLRC reversed the findings of the LA and ruled that there was no evidence
showing that Alcaraz had been apprised of her probationary status and the
requirements which she should have complied with in order to be a regular
employee.36 It held that 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
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. 42Due 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.47Abbott 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.
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.
The Court’s Ruling
A.  Forum Shopping and Violation
of Section 5, Rule 7 of the Rules  issuance of a writ of execution had been resolved in the Second CA Petition — which
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.
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 pendentiaare present, namely: (a)
identity of parties, or at least such parties who represent the same interests in both
actions; (b) identity of rights asserted and relief prayed for, the relief being founded
on the same facts; and (c) the identity with respect to the two preceding particulars in
the two (2) cases is such that any judgment that may be rendered in the pending case,
regardless of which party is successful, would amount to res judicata in the other
case.57
In this case, records show that, except for the element of identity of parties, the
elements of forum shopping do not exist. Evidently, the First CA Petition was
instituted to question the ruling of the NLRC that Alcaraz was illegally dismissed. On
the other hand, the Second CA Petition pertains to the propriety of the enforcement of
the judgment award pending the resolution of the First CA Petition and the finality of
the decision in the labor dispute between Alcaraz and 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
in fact had already attained finality — the matter of disclosing the June 16, 2010
Memorandum of Appeal is now moot and academic.
Having settled the foregoing procedural matter, the Court now proceeds to resolve
the substantive issues.
B.  Probationary employment;
grounds for termination.
A probationary employee, like a regular employee, enjoys security of tenure.
However, in cases of probationary employment, aside from just or authorized causes
of termination, an additional ground is provided under Article 295 of the Labor Code,
i.e., the probationary employee may also be terminated for failure to qualify as a
regular employee in accordance with the reasonable standards made known by the
employer to the employee at the time of the engagement. 59 Thus, the services of an
employee who has been engaged on probationary basis may be terminated for any of
the following: (a) a just or (b) an authorized cause; and (c) when he fails to qualify as a
regular employee in accordance with reasonable standards prescribed by the
employer.60
Corollary thereto, Section 6(d), Rule I, Book VI of the Implementing Rules of the
Labor Code provides that if the employer fails to inform the probationary employee of
the reasonable standards upon which the regularization would be based on at the time
of the engagement, then the said employee shall be deemed a regular employee, viz.:
(d)  In all cases of probationary employment, the employer shall make known
to the employee the standards under which he will qualify as a regular
employee at the time of his engagement. Where no standards are made known
to the employee at that time, he shall be deemed a regular employee.
In other words, the employer is made to comply with two (2) requirements when
dealing with a probationary employee: first, the employer must communicate the
regularization standards to the probationary employee; and second, the employer
must make such communication at the time of the probationary 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 nonregularization.
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:
(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
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.”
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:  due process should not nullify the dismissal, or render it illegal, or ineffectual.
[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.
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
However, the employer should indemnify the employee for the violation of his
statutory rights.72 Thus, in Agabon, the employer was ordered to pay the employee
nominal damages in the amount of P30,000.00.73
Proceeding from the same ratio, the Court modified Agabon in the case of Jaka
Food Processing Corporation v. Pacot (Jaka) 74 where it created a distinction between
procedurally defective dismissals due to a just cause, on one hand, and those due to
an authorized cause, on the other.
It was explained that if the dismissal is based on a just cause under Article 282 of
the Labor Code (now Article 296) but the employer failed to comply with the notice
requirement, the sanction to be imposed upon him should be tempered because the
dismissal process was, in effect, initiated by an act imputable to the employee; if the
dismissal is based on an authorized cause under Article 283 (now Article 297) but the
employer failed to comply with the notice requirement, the sanction should
be stifferbecause the dismissal process was initiated by the employer’s exercise of his
management prerogative.75Hence, in Jaka, where the employee was dismissed for an
authorized cause of retrenchment76 — as contradistinguished from the employee in
Agabon who was dismissed for a just cause of neglect of duty 77 — 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.
E.  Liability of individual peti-
tioners as corporate officers.
It is hornbook principle that personal liability of corporate directors, trustees or
officers attaches only when: (a) they assent to a patently unlawful act of the
corporation, or when they are guilty of bad faith or gross negligence in directing its
affairs, or when there is a conflict of interest resulting in damages to the corporation,
its stockholders or other persons; (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.
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 (CJ.), 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.
DISSENTING OPINION
BRION,  J.:
The Case
The case in caption was a Second Division illegal dismissal case that the Court en
banc accepted for decision pursuant to Section 3, Rule 2 of the Internal Rules of the
Supreme Court.
A.  The Issues Posed
The case posed two issues to the Court for resolution. The first is the manner of
review that the Court should undertake. This is an issue that underlies all the 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.
C.  The Rulings Below
The Labor Arbiter ruled that the dismissal had been valid but the National
Labor Relations Commission(NLRC) reversed the Labor Arbiter; found the
dismissal illegal; and damages and 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.
From the CA ruling, a dissatisfied party has the option to file an appeal with
the Supreme Court  through a petition for review on certiorari under Rule 45 of the
Rules of Court. This mode of appeal limits the review to questions of law.
B.  Standard of Review of a Labor Case under Rule 45 of the Rules of
Court
Montoya v. Transmed3the CourtMontoya  and, accordingly, dismiss the petition. If grave abuse of discretion exists, then the CA
In a Rule 45 review, we consider the correctness of the assailed CA
decision, in contrast with the review for jurisdictional error that we
undertake under Rule 65. Furthermore, Rule 45 limits us to the review
of questions of law raised against the assailed CA decision. In ruling for
legal correctness, we have to view the CA decision in the same context that the
petition for certiorari it ruled upon was presented to it; we have to
examine the CA decision from the prism of whether it correctly
determined the presence or absence of grave abuse of discretion in
the NLRC decision before it, not on the basis of whether the NLRC
decision on the merits of the case was correct. In other words, we have
to be keenly aware that the CA undertook a Rule 65 review, not a review on
appeal, of the NLRC decision challenged before it. This is the approach that
should be basic in a Rule 45 review of a CA ruling in a labor case. In question
form, the question to ask is: Did the CA correctly determine
whether the NLRC committed grave abuse of discretion in ruling
on the case?4 [emphases and italics supplied; citations omitted]
Thus, under the Rule 65 review by the CA, Montoya reiterates that the sole
ground or issue allowed is jurisdictional — the presence or absence of grave abuse
of discretion on the part of the NLRC in ruling on the case. To state the obvious, this
kind of review would have made it easier for the CA to handle the case; in the absence
of a grave abuse of discretion, it can dismiss labor cases for lack of grave abuse of
discretion as we do in this Court.
From the CA, further recourse is through a Rule 45 review by this Court on
questions of law in accordance with prevailing rulings. The office of a petition for
review on certiorari is not to examine and settle factual questions already ruled
upon below. In this review, the Court simply determines whether the legal
correctness of the 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.
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
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 denythe 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. 
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:
x x x x
(d)   In all cases of probationary employment, the employer shall
make known to the employee the standards under which he will
qualify as a regular employee at the time of his
engagement. Where no standards are made known to the employee
at that time, he shall be deemed a regular employee. [emphases ours;
italics supplied]
To sum up these provisions, a valid probationary employment requires the
concurrence of two requirements. First, the employer shall make known
the reasonable standard  (performance standard) whose compliance will render
the employee qualified to be a regular employee. Second, the employer
shall inform the employee of the applicable performance standard at
the time of his/her engagement. Failing in one or both, the employee, even if
initially hired as a probationary employee, should be viewed and considered a regular
employee.
The ponencia apparently fully agrees with the above statement of the applicable
law as it substantially recites the same requirements, including the consequence that
upon failure to comply with these same requirements, “the employee is deemed as a
regular and not a probationary employee.”6 It continues, however, with a twist that
effectively negates what it has stated and admitted about the need to communicate the
regularization standards to the employee, thus:
Keeping with these rules, an employees is deemed to have made known
the standards that would qualify a probationary employee to be a regular
employee when it has exerted reasonable efforts to apprise the employee of
what he is expected to do to accomplish during the trial of probation. This
goes without saying that the employee is sufficiently made aware of his
probationary status as well as the length of time of the probation.
The exception to the foregoing is when the job is self-descriptive in nature,
for instance, in the case of maids, cooks, drivers, or messengers. Also
in Aberdeen Court, Inc. v. Agustin, it has been held that the rule on notifying a
probationary employee of the standards of regularization should not be used
to exculpate an employee in a manner contrary to basic knowledge and
common sense in regard to which there is no need to spell out a policy or
standard to be met. In the same light, an 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.
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 viaan 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?
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 requirementsof 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.
II.A.2(a).  No specific employment standard on  Code, as amended, and its implementing rule that deem an employee to be regular if
          record.
As the NLRC found (and as confirmed by the CA), no term or provision exists in
the respondent’s Employment Contract 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]
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 orientationon 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.
The requirement of independent proof is found under Article 281 of the Labor
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 employer[.]”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:
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.
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.
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.
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
 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.
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
communica-
tion of performance standards qua performance standards, as this is a
matter that was also assumed.
I draw attention, too, to another unusual feature of this case indicating, not only
the omissions that the ponencia already cited, but the implication as well that the
respondent had been singled out for special treatment by the petitioner officers. At
the very least, this incident indicates that the petitioner did not apply the same
standards and processes to the 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 x x x 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.
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 that a
probationary employee does not have lesser rights than a regular
employee under the Labor Code in terms of the just cause for the
termination of an employment. While the strict application of Article 282 of the
Labor Code may be relaxed because the employee is still under probation (so that
analogous probationary status rules may apply), the same essential just cause for
dismissal must be present and must be proven. In other words, probationary
employment does not mean that the employee is under an “employment at will”
situation as that phrase is understood in American jurisprudence. To reiterate, the
fact that the respondent was still in her probationary period of employment did not
lessen the burden of proof that the law imposed on the petitioners to prove the just
cause for her dismissal. 17Probationary 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
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.
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.
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]
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.20The 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
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.
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 sepa-
ration benefits would be for the best interest of the parties involved.
“Thus, an illegally dismissed employee is entitled to two reliefs: backwages
and reinstatement. The two reliefs provided are separate and distinct. In instances
where reinstatement is no longer feasible because of strained relations between the
employee and the employer, separation pay is granted. In effect, an illegally dismissed
employee is entitled to either reinstatement, if viable, or separation pay if
reinstatement is no longer viable, and backwages.” 25
II.C.2.  Other awards as a consequence of the
        damages suffered
In addition to these basic awards, an illegally dismissed employee may also be
awarded moral and exemplary damages and 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:  on a Rule 65 review by the CA, were based on the law and jurisprudence as properly
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 x x x, 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:
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 ponenciacould 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
applied to the established set of facts and evidence.
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 entitled to nominal damages under Article 2221 of the Civil Code. (Reyes vs.
duty or any other analogous cause to the just causes mentioned in the law. Montemayor, 598 SCRA 61 [2009])
As the records show, neither was there compliance with the respondent’s own The filing of a certificate of non-forum shopping is mandatory so much so that
internal procedures nor with the law’s procedural due process. The respondent was non-compliance could only be tolerated by special circumstances and compelling
not served the two-notice required by law before her employment was terminated by reasons; This Court has held that when there are several petitioners, all of them
the petitioner. must execute and sign the certification against forum shopping; otherwise, those who
Third, the NLRC’s monetary awards, as affirmed by the CA, were appropriate did not sign will be dropped as parties to the case. (Pigcaulan vs. Security and Credit
consequences of the respondent’s illegal dismissal from employment. The payment of Investigation, Inc., 663 SCRA 1 [2012])
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.
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.
Petition granted, judgment and resolution reversed and set aside.
Notes.—A person whose right to remain in peaceful possession of his property is
violated by another person’s fraudulent registration of such property in her name is