Doctrine: Four absences in her six years of service, to our mind, cannot be

considered gross and habitual neglect of duty, especially so since the absences
were spread out over a six-month period.

SECOND DIVISION

G.R. No. 172044               February 06, 2013

CAVITE APPAREL, INCORPORATED and ADRIANO TIMOTEO, Petitioners,

vs.
MICHELLE MARQUEZ, Respondent.

DECISION

BRION, J.:

We resolve the petition for review on certiorari1filed by petitioners Cavite Apparel, Incorporated
( Cavite Apparel) and Adriano Timoteo to nullify the decision2 dated January 23, 2006 and the
resolution3 dated March 23, 2006 of the Court of Appeals ( CA) in C.A.-G.R. SP No. 89819
insofar as it affirmed the disposition4 of the National Labor Relations Commission (NLRC) in
NLRC CA No. 029726-01. The NLRC set aside the decision5 of Labor Arbiter (LA) Cresencio
G. Ramos in NLRC NCR Case No. RAB-IV-7-12613-00-C dismissing the complaint for illegal
dismissal filed by respondent Michelle Marquez against the petitioners.

The Factual Antecedents

Cavite Apparel is a domestic corporation engaged in the manufacture of garments for export. On
August 22, 1994, it hired Michelle as a regular employee in its Finishing Department. Michelle
enjoyed, among other benefits, vacation and sick leaves of seven (7) days each per annum. Prior
to her dismissal on June 8, 2000, Michelle committed the following infractions (with their
corresponding penalties):

a. First Offense: Absence without leave (AWOL) on December 6, 1999 – written warning

b. Second Offense: AWOL on January 12, 2000 – stern warning with three (3) days
suspension

c. Third Offense: AWOL on April 27, 2000 – suspension for six (6) days.6

On May 8, 2000, Michelle got sick and did not report for work. When she returned, she
submitted a medical certificate. Cavite Apparel, however, denied receipt of the certificate.7
Michelle did not report for work on May 15-27, 2000 due to illness. When she reported back to
work, she submitted the necessary medical certificates. Nonetheless, Cavite Apparel suspended
Michelle for six (6) days (June 1-7, 2000). When Michelle returned on June 8, 2000, Cavite
Apparel terminated her employment for habitual absenteeism.
On July 4, 2000, Michelle filed a complaint for illegal dismissal with prayer for reinstatement,
backwages and attorney’s fees with the NLRC, Regional Arbitration Branch No. IV.

The LA Ruling

In a decision dated April 28, 2001,8 LA Ramos dismissed the complaint. He noted that
punctuality and good attendance are required of employees in the company’s Finishing
Department. For this reason, LA Ramos considered Michelle’s four absences without official
leave as habitual and constitutive of gross neglect of duty, a just ground for termination of
employment. LA Ramos also declared that due process had been observed in Michelle’s
dismissal, noting that in each of her absences, Cavite Apparel afforded Michelle an opportunity
to explain her side and dismissed her only after her fourth absence. LA Ramos concluded that
Michelle’s dismissal was valid.9

The NLRC Decision

On appeal by Michelle, the NLRC referred the case to Executive LA Vito C. Bose for review,
hearing and report.10 Adopting LA Bose’s report, the NLRC rendered a decision11 dated May 7,
2003 reversing LA Ramos’ decision. The NLRC noted that for Michelle’s first three absences,
she had already been penalized ranging from a written warning to six days suspension. These,
the NLRC declared, should have precluded Cavite Apparel from using Michelle’s past absences
as bases to impose on her the penalty of dismissal, considering her six years of service with the
company. It likewise considered the penalty of dismissal too severe. The NLRC thus concluded
that Michelle had been illegally dismissed and ordered her reinstatement with backwages.12
When the NLRC denied Cavite Apparel’s motion for reconsideration in a resolution13 dated
March 30, 2005, Cavite Apparel filed a petition for certiorari with the CA to assail the NLRC
ruling.

The CA Ruling

Cavite Apparel charged the NLRC with grave abuse of discretion when it set aside the LA’s
findings and ordered Michelle’s reinstatement. It disagreed with the NLRC’s opinion that
Michell’s past infractions could no longer be used to justify her dismissal since these infractions
had already been penalized and the corresponding penalties had been imposed.

The CA found no grave abuse of discretion on the part of the NLRC and accordingly dismissed
Cavite Apparel’s petition on January 23, 2006.14 While it agreed that habitual absenteeism
without official leave, in violation of company rules, is sufficient reason to dismiss an employee,
it nevertheless did not consider Michelle’s four absences as habitual. It especially noted that
Michelle submitted a medical certificate for her May 8, 2000 absence, and thus disregarded
Cavite Apparel’s contrary assertion. The CA explained that Michelle’s failure to attach a copy of
the medical certificate in her initiatory pleading did not disprove her claim.

The CA agreed with the NLRC that since Cavite Apparel had already penalized Michelle for her
three prior absences, to dismiss her for the same infractions and for her May 8, 2000 absence was
unjust. Citing jurisprudence, The CA concluded that her dismissal was too harsh, considering her
six years of employment with Cavite Apparel; it was also a disproportionate penalty as her fourth
infraction appeared excusable.

In its March 23, 2006 resolution,15 the CA denied Cavite Apparel’s motion for reconsideration;
hence, Cavite Apparel’s present recourse.

The Petition

Cavite Apparel imputes grave abuse of discretion against the CA when:

1. it did not find that the NLRC committed grave abuse of disretion in setting aside the
decision of the CA;

2. it failed to consider Michelle’s four (4) AWOLs over a period of six months, from
December 1999 to May 2000, habitual; and

3. it ruled that the series of violations of company rules committed by Michelle were
already meted with the corresponding penalties.16

Cavite Apparel argues that it is its prerogative to discipline its employees. It thus maintains that
when Michelle, in patent violation of the company’s rules of discipline, deliberately, habitually,
and without prior authorization and despite warning did not report for work on May 8, 2000, she
committed serious misconduct and gross neglect of duty. It submits that dismissal for violation
of company rules and regulations is a dismissal for cause as the Court stressed in Northern
Motors, Inc., v. National Labor Union, et al.17

The Case for the Respondent

Michelle asserts that her dismissal was arbitrary and unreasonable. For one, she had only four
absences in her six (6) years of employment with Cavite Apparel. She explains that her absence
on May 8, 2000 was justified as she was sick and had sick leave benefits against which Cavite
Apparel could have charged her absences. Also, it had already sanctioned her for the three prior
infractions. Under the circumstances, the penalty of dismissal for her fourth infraction was very
harsh. Finally, as the CA correctly noted, Cavite Apparel terminated her services on the fourth
infraction, without affording her prior opportunity to explain.

The Court’s Ruling

The case poses for us the issue of whether the CA correctly found no grave abuse of discretion
when the NLRC ruled that Cavite Apparel illegally terminated Michelle’s employment.

We stress at the outset that, as a rule, the Court does not review questions of fact, but only
questions of law in an appeal by certiorari under Rule 45 of the Rules of Court.18 The Court is
not a trier of facts and will not review the factual findings of the lower tribunals as these are
generally binding and conclusive.19 The rule though is not absolute as the Court may review the
facts in labor cases where the findings of the CA and of the labor tribunals are contradictory.20
Given the factual backdrop of this case, we find sufficient basis for a review as the factual
findings of the LA, on the one hand, and those of the CA and the NLRC, on the other hand, are
conflicting.

After a careful review of the merits of the case, particularly the evidence adduced, we find no
reversible error committed by the CA when it found no grave abuse of discretion in the NLRC
ruling that Michelle had been illegally dismissed.

Michelle’s four absences were not habitual; "totality of infractions" doctrine not applicable

Cavite Apparel argues that Michelle’s penchant for incurring unauthorized and unexcused
absences despite its warning constituted gross and habitual neglect of duty prejudicial to its
business operations. It insists that by going on absence without official leave four times,
Michelle disregarded company rules and regulations; if condoned, these violations would render
the rules ineffectual and would erode employee discipline.

Cavite Apparel disputes the CA’s conclusion that Michelle’s four absences without official leave
were not habitual since she was able to submit a medical certificate for her May 8, 2000 absence.
It asserts that, on the contrary, no evidence exists on record to support this conclusion. It
maintains that it was in the exercise of its management prerogative that it dismissed Michelle;
thus, it is not barred from dismissing her for her fourth offense, although it may have previously
punished her for the first three offenses. Citing the Court’s ruling in Mendoza v. NLRC,21 it
contends that the totality of Michelle’s infractions justifies her dismissal.

We disagree and accordingly consider the company’s position unmeritorious.

Neglect of duty, to be a ground for dismissal under Article 282 of the Labor Code, must be both
gross and habitual.22 Gross negligence implies want of care in the performance of one’s duties.
Habitual neglect imparts repeated failure to perform one’s duties for a period of time, depending
on the circumstances.23 Under these standards and the circumstances obtaining in the case, we
agree with the CA that Michelle is not guilty of gross and habitual neglect of duties.

Cavite Apparel faults the CA for giving credit to Michelle’s argument that she submitted a
medical certificate to support her absence on May 8, 2000; there was in fact no such submission,
except for her bare allegations. It thus argues that the CA erred in holding that since doubt exists
between the evidence presented by the employee and that presented by the employer, the doubt
should be resolved in favor of the employee. The principle, it contends, finds no application in
this case as Michelle never presented a copy of the medical certificate. It insists that there was no
evidence on record supporting Michelle’s claim, thereby removing the doubt on her being on
absence without official leave for the fourth time, an infraction punishable with dismissal under
the company rules and regulations.

Cavite Apparel’s position fails to convince us. Based on what we see in the records, there simply
cannot be a case of gross and habitual neglect of duty against Michelle. Even assuming that she
failed to present a medical certificate for her sick leave on May 8, 2000, the records are bereft of
any indication that apart from the four occasions when she did not report for work, Michelle had
been cited for any infraction since she started her employment with the company in 1994. Four
absences in her six years of service, to our mind, cannot be considered gross and habitual neglect
of duty, especially so since the absences were spread out over a six-month period.

Michelle’s penalty of dismissal too harsh or not proportionate to the infractions she commited

Although Michelle was fully aware of the company rules regarding leaves of absence, and her
dismissal might have been in accordance with the rules, it is well to stress that we are not bound
by such rules. In Caltex Refinery Employees Association v. NLRC24 and in the subsequent case of
Gutierrez v. Singer Sewing Machine Company,25 we held that "[e]ven when there exist some
rules agreed upon between the employer and employee on the subject of dismissal, x x x the
same cannot preclude the State from inquiring on whether [their] rigid application would work
too harshly on the employee." This Court will not hesitate to disregard a penalty that is
manifestly disproportionate to the infraction committed.

Michelle might have been guilty of violating company rules on leaves of absence and employee
discipline, still we find the penalty of dismissal imposed on her unjustified under the
circumstances. As earlier mentioned, Michelle had been in Cavite Apparel’s employ for six
years, with no derogatory record other than the four absences without official leave in question,
not to mention that she had already been penalized for the first three absences, the most serious
penalty being a six-day suspension for her third absence on April 27, 2000.

While previous infractions may be used to support an employee’s dismissal from work in
connection with a subsequent similar offense,26 we cautioned employers in an earlier case that
although they enjoy a wide latitude of discretion in the formulation of work-related policies,
rules and regulations, their directives and the implemtation of their policies must be fair and
reasonable; at the very least, penalties must be commensurate to the offense involved and to the
degree of the infraction.27

As we earlier expressed, we do not consider Michelle’s dismissal to be commensurate to the four

absences she incurred for her six years of service with the company, even granting that she failed
to submit on time a medical certificate for her May 8, 2000 absence. We note that she again did
not report for work on May 15 to 27, 2000 due to illness. When she reported back for work, she
submitted the necessary medical certificates. The reason for her absence on May 8, 2000 – due to
illness and not for her personal convenience – all the more rendered her dismissal unreasonable
as it is clearly disproportionate to the infraction she committed.

Finally, we find no evidence supporting Cavite Apparel’s claim that Michelle’s absences
prejudiced its operations; there is no indication in the records of any damage it sustained because
of Michelle’s absences. Also, we are not convinced that allowing Michelle to remain in
employment even after her fourth absence or the imposition of a lighter penalty would result in a
breakdown of discipline in the employee ranks. What the company fails to grasp is that, given
the unreasonableness of Michelle’s dismissal – i.e., one made after she had already been
penalized for her three previous absences, with the fourth absence imputed to illness –
confirming the validity of her dismissal could possibly have the opposite effect. It could give rise
to belief that the company is heavy-handed and may only give rise to sentiments against
it.1âwphi1

In fine, we hold that Cavite Apparel failed to discharge the burden of proving that Michelle’s
dismissal was for a lawful cause.28 We, therefore, find her to have been illegally dismissed.

As a final point, we reiterate that while we recognize management’s prerogative to discipline its
employees, the exercise of this prerogative should at all times be reasonable and should be
tempered with compassion and understanding.29 Dismissal is the ultimate penalty that can be
imposed on an employee. Where a penalty less punitive may suffice, whatever missteps may be
committed by labor ought not to be visited with a consequence so severe for what is at stake is
not merely the employee’s position but his very livelihood and perhaps the life and subsistence
of his family.30

WHEREFORE, premises considered, the petition is DENIED. The assailed January 23, 2006
decision and March 23, 2006 resolution of the Court of Appeals in CA-G.R. SP No. 89819 are
AFFIRMED. Costs against Cavite Apparel, Incorporated.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

MARIANO C. DEL CASTILLO JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

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

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

CERTIFICATION
Pursuant to Section 13, Article Vlll of the Constitution, and the Division Chairperson's
Attestation, l certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes
1
Dated May 9, 2006 and filed under Rule 45 of the Rules of Court; rollo pp. 11-29.
2
Id at 11-18; penned by Associate Justice Renato C. Dacudao and concurred in by
Associate Justices Lucas P. Bersamin (now a member of this Court) and Celia C. Librea-
Leagogo.
3
Id at 9
4
Id at 76-81 and 87-88 respectively. Decision of the NLRC First Division dated May 7,
2003 and its resolution dated March 30, 2005.
5
Id at 57-62 dated April 28, 2001.
6
Id. at 12, 16-17 and 79.
7
Id. at 12, 17, 79 and 186. Cavite Apparel denied receiving Michelle’s medical
certificate. See Petition, Cavite Apparel’s Reply, and Annex G-1 of its Position Paper,
Annex "A" to the Petition; at 17, 186 and 43, respectively.
8
Supra note 5.
9
Rollo, pp. 61-62.
10
Id. at 77.
11
Id. at 76-80.
12
Ibid.
13
Id. at 87-88.
14
Supra note 2.
15
Supra note 3.
16
Rollo, pp. 18-27.
17
102 Phil. 958, 960 (1958).
18
DUP Sound Philippines v. Court of Appeals, G.R. No. 168317, November 21, 2011,
660 SCRA 461,467, citing Union Industries, Inc. v. Vales, 517 Phil. 247 (2006).

Iglesia Evangelista Metodista en las Islas Filipinas (IEMELIF), Inc. v. Juane, G.R.
19

Nos. 172447 and 179404, September 18, 2009, 600 SCRA 555, 567.
20
DUP Sound Philippines v. Court of Appeals, supra note 18, at 467; citation omitted.
21
G.R. No. 94294, March 22, 1991, 195 SCRA 606, 613.
22
Nissan Motor Phils., Inc. v. Angelo, G.R. No. 164181, September 14, 2011, 657 SCRA
520, 530.

Valiao v. Court of Appeals, 479 Phil. 459, 469 (2004), citing JGB & Associates, Inc. v.
23

NLRC, 324 Phil. 747, 754 (1996).

24
316 Phil. 335, 343-344 (1995).
25
458 Phil. 401, 413 (2003).
26
De Guzman v. National Labor Relations Commission, 371 Phil. 192, 204 (1999), citing
Filipro, Inc. v. Hon. Minister Ople, 261 Phil. 104 (1990).
27
Moreno v. San Sebastian College-Recoletos Manila, G.R. No. 175283, March 28,
2008, 550 SCRA 414, 429; citation omitted.
28
Labor Code, Article 277(b).
29
Philippine Long Distance Company v. Torres. G.R. No. 1435511, November 15, 2010,
634 SCRA 538-552.
30
Ibid.
G.R. No. 184116               June 19, 2013

CENTURY IRON WORKS, INC. and BENITO CHUA, Petitioners,

vs.
ELETO B. BANAS, Respondent.

DECISION

BRION, J.:

We resolve the petition for review on certiorari1 filed by petitioners Century Iron Works, Inc.
(Century Iron) and Benito Chua to challenge the January 31, 2008 decision2 and the August 8,
2008 resolution3 of the Court of Appeals (CA) in CA-G.R. SP No. 98632.

The Factual Antecedents

Respondent Eleto B. Banas worked at petitioner Century Iron beginning July 5, 20004 until his
dismissal on June 18, 2002.5 Bañas responded to his dismissal by filing a complaint for illegal
dismissal with prayer for reinstatement and money claims.6

According to Century Iron, Bañas worked as an inventory comptroller whose duties are to: (1)
train newly hired warehouseman; (2) initiate analysis on the discrepancies concerning records
and inventories; (3) check and confirm warehouseman’s report; (4) check the accuracy of
materials requisition before issuance to the respective warehouseman at the jobsite; (5) monitor
and maintain records; and (6) recommend and initiate corrective or preventive action as may be
warranted.7

Sometime in 2002, Century Iron received letters of complaint from its gas suppliers regarding
alleged massive shortage of empty gas cylinders.8 In the investigation that Century Iron
conducted in response to the letters, it found that Bañas failed to make a report of the missing
cylinders. On May 14, 2002, Century Iron required Bañas to explain within forty-eight (48)
hours from receipt of its letter why no disciplinary action should be taken against him for loss of
trust and confidence and for gross and habitual neglect of duty.9 On May 31, 2002, Century Iron
issued a Memorandum requiring Bañas to attend a hearing regarding the missing cylinders.10
Bañas subsequently appeared at the hearing to air his side.

On June 17, 2002, Century Iron, through Personnel Officer Mr. Virgilio T. Bañaga, terminated
Bañas’ services on grounds of loss of trust and confidence, and habitual and gross neglect of
duty.11 The termination was effective June 18, 2002.

In his defense, Bañas alleged that he merely worked as an inventory clerk who is not responsible
for the lost cylinders. He pointed out that his tasks were limited to conducting periodic and
yearly inventories, and submitting his findings to the personnel officer. He maintained that
unlike a supervisory employee, he was not required to post a bond and he did not have the
authority to receive and/or release cylinders in the way that a warehouseman does. Therefore, he
cannot be terminated on the ground of loss of confidence.12

On the other hand, the petitioners asserted that Bañas was a supervisory employee who was
responsible for the lost cylinders. They maintained that Bañas committed numerous infractions
during his tenure amounting to gross and habitual neglect of duty. These included absences
without leave, unauthorized under time, failure to implement proper standard warehousing and
housekeeping procedure, negligence in making inventories of materials, and failure to ensure
sufficient supplies of oxygen-acetylene gases.13

The Labor Arbitration Rulings

In a decision14 dated January 31, 2005, Labor Arbiter (LA) Joel S. Lustria ruled that Bañas was
illegally dismissed. The LA did not believe Century Iron’s assertions that Bañas worked as an
inventory comptroller and that he was grossly and habitually neglectful of his duties. The
evidence on record shows that Bañas was an inventory clerk whose duties were merely to
conduct inventory and to submit his report to the personnel officer. As an inventory clerk, it was
not his duty to receive the missing items. The LA also ruled that Century Iron deprived Bañas of
due process because the purpose of the hearing was to investigate the lost cylinders and not to
give Bañas an opportunity to explain his side.

On appeal by Century Iron, the National Labor Relations Commission (NLRC) affirmed the
LA’s ruling in toto.15 It ruled that the various memoranda issued by Century Iron explicitly show
that Bañas was an inventory clerk. It noted that Century Iron unequivocally stated in its
termination report dated July 29, 2002 that Bañas was an inventory clerk. It also pointed out that
Century Iron failed to present the Contract of Employment or the Appointment Letter which was
the best evidence that Bañas was an inventory comptroller.

The NLRC denied16 the motion for reconsideration17 that Century Iron subsequently filed,
prompting the employer company to seek relief from the CA through a petition for certiorari
under Rule 65 of the Rules of Court.18

The CA Ruling

On January 31, 2008, the CA affirmed with modification the NLRC decision. It agreed with the
lower tribunals’ finding that Bañas was merely an inventory clerk. It, however, ruled that Bañas
was afforded due process. It held that Bañas had been given ample opportunity to air his side
during the hearing, pointing out that the essence of due process is simply an opportunity to be
heard.19

Century Iron filed the present petition20 after the CA denied21 its motion for reconsideration.22

The Petition

The petitioners impute the following errors committed by the appellate court:
 1) The CA erred in holding that the factual findings of the NLRC may not be inquired
into considering that only questions of law may be brought in an original action for
certiorari;

2) The CA erred in finding that Bañas was not a supervisory employee; and

3) The CA erred in not holding that Bañas’ termination from his employment was for
valid and just causes.23

The petitioners argue that the CA erred when it did not disturb the NLRC’s finding that Bañas
was merely a rank-and-file employee. Citing Capitol Medical Center, Inc. v. Dr. Meris,24 they
contend that for factual findings of the NLRC to be accorded respect, these must be sufficiently
supported by the evidence on record. The petitioners assert that Bañas was a supervisory
employee who, in the interest of the employer, effectively recommended managerial actions
using his independent judgment. They point out that one of Bañas’ duties as an inventory
comptroller was to recommend and initiate corrective or preventive action as may be warranted.

The petitioners also maintain that Bañas was dismissed for just and valid causes. They reiterate
that since Bañas was a supervisory employee, he could be dismissed on the ground of loss of
confidence. Finally, the petitioners claim that Bañas was grossly and habitually negligent in his
duty which further justified his termination.

The Respondent’s Position

In his Comment,25 Bañas posits that the petition raises purely questions of fact which a petition
for review on certiorari under Rule 45 of the Rules of Courts does not allow. He additionally
submits that the petitioners’ arguments have been fully passed upon and found unmeritorious by
the lower tribunals and the CA.

The Issues

This case presents to us the following issues:

1) Whether or not questions of fact may be inquired into in a petition for certiorari under Rule 65
of the Rules of Court;

2) Whether or not Bañas occupied a position of trust and confidence, or was routinely charged
with the care and custody of Century Iron’s money or property; and

3) Whether or not Century Iron terminated Bañas for just and valid causes.

As part of the third issue, the following questions are raised:

a) Whether or not loss of confidence is a ground for terminating a rank-and-file employee who is
not routinely charged with the care and custody of the employer’s money or property; and
b) Whether or not Bañas was grossly and habitually neglectful of his duties.

The Court’s Ruling

We reverse the CA’s decision.

In a petition for review on certiorari

under Rule 45, only questions of law
may be put into issue while in a
petition for certiorari under Rule 65,
only questions of jurisdiction may be
inquired into

On the first issue, the CA relied on Cebu Shipyard & Eng’g Works, Inc. v. William Lines, Inc.26
in affirming the lower tribunals’ finding that Bañas worked as an inventory clerk. According to
the CA, this Court has ruled in Cebu Shipyard that in petitions for certiorari, only questions of
law may be put into issue and questions of fact cannot be entertained. Not noticing such glaring
error, the petitioners agree to such disquisition.They, however, assert that there is an exception to
the rule that only questions of law may be brought in an original action for certiorari, such as
when the lower court’s findings of facts are not supported by sufficient evidence or that the same
was based on misapprehension or erroneous appreciation of facts.27

A revisit of Cebu Shipyard shows that the CA has inadvertently misquoted this Court. In the said
case, we held:28

In petitions for review on certiorari, only questions of law may be put into issue. Questions of
fact cannot be entertained. The finding of negligence by the Court of Appeals is a question which
this Court cannot look into as it would entail going into factual matters on which the finding of
negligence was based. [emphasis ours; italics supplied]

We clarify that the petitioners filed a petition for certiorari under Rule 65 of the Rules of Court
before the CA. Both the petitioners and the CA have confused Rule 45 and Rule 65. In several
Supreme Court cases,29 we have clearly differentiated between a petition for review on certiorari
under Rule 45 and a petition for certiorari under Rule 65. A petition for review on certiorari
under Rule 45 is an appeal from a ruling of a lower tribunal on pure questions of law.30 It is only
in exceptional circumstances31 that we admit and review questions of fact.

A question of law arises when there is doubt as to what the law is on a certain state of facts,
while there is a question of fact when the doubt arises as to the truth or falsity of the alleged
facts. For a question to be one of law, the question must not involve an examination of the
probative value of the evidence presented by the litigants or any of them. The resolution of the
issue must rest solely on what the law provides on the given set of circumstances. Once it is clear
that the issue invites a review of the evidence presented, the question posed is one of fact.32

Thus, the test of whether a question is one of law or of fact is not the appellation given to such
question by the party raising the same; rather, it is whether the appellate court can determine the
issue raised without reviewing or evaluating the evidence, in which case, it is a question of law;
otherwise it is a question of fact.33

On the other hand, a petition for certiorari under Rule 65 is a special civil action, an original
petition confined solely to questions of jurisdiction because a tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without jurisdiction or in excess of jurisdiction or
with grave abuse of discretion amounting to lack of jurisdiction.34

The petition before us involves mixed questions of fact and law. The issues of whether Bañas
occupied a position of trust and confidence, or was routinely charged with the care and custody
of the employer’s money or property, and whether Bañas was grossly and habitually neglectful
of his duties involve questions of fact which are necessary in determining the legal question of
whether Bañas’ termination was in accordance with Article 282 of the Labor Code.

We will only touch these factual issues in the course of determining whether the CA correctly
ruled whether or not the NLRC committed grave abuse of discretion in the process of deducing
its conclusions from the evidence proffered by the parties. In reviewing in this Rule 45 petition
the CA’s decision on a Rule 65 petition, we will answer the question: Did the CA correctly
determine whether the NLRC committed grave abuse of discretion in ruling on this case?35

Bañas did not occupy a position of

trust and confidence nor was he in
charge of the care and custody of
Century Iron’s money or property

The CA properly affirmed the NLRC’s ruling that Bañas was a rank-and-file employee who was
not charged with the care and custody of Century Iron’s money or property. The ruling of the
CA, finding no grave abuse of discretion in the LA and the NLRC rulings and are supported by
substantial evidence, is, to our mind, correct. The evidence on record supports the holding that
Bañas was an ordinary employee. There is no indication that the NLRC’s decision was unfair or
arbitrary. It properly relied on Century Iron’s numerous memoranda36 where Bañas was
identified as an inventory clerk. It correctly observed that Century Iron unequivocably declared
that Bañas was an inventory clerk in its July 29, 2002 termination report with the Department of
Labor and Employment.37 Moreover, as the NLRC judiciously pointed out, Century Iron failed to
present the Contract of Employment or the Appointment Letter, the best evidence that would
show that Bañas was an inventory comptroller.

Since Bañas was an ordinary rank-

and-file employee, his termination
on the ground of loss of confidence
was illegal

Since Bañas did not occupy a position of trust and confidence nor was he routinely in charge
with the care and custody of Century Iron’s money or property, his termination on the ground of
loss of confidence was misplaced.
We point out in this respect that loss of confidence applies to: (1) employees occupying positions
of trust and confidence, the managerial employees; and (2) employees who are routinely charged
with the care and custody of the employer’s money or property which may include rank-and-file
employees. Examples of rank-and-file employees who may be dismissed for loss of confidence
are cashiers, auditors, property custodians, or those who, in the normal routine exercise of their
functions, regularly handle significant amounts of money or property.38 Thus, the phrasing of the
petitioners’ second assignment of error is inaccurate because a rank-and-file employee who is
routinely charged with the care and custody of the employer’s money or property may be
dismissed on the ground of loss of confidence.

Bañas was grossly and habitually

neglectful of his duties

With respect to Century Iron’s assertion that Bañas was grossly and habitually neglectful of his
duties, the CA erred in ruling that the NLRC did not commit grave abuse of discretion in
concluding that the dismissal was illegal. The NLRC’s finding that there was illegal dismissal on
the ground of gross and habitual neglect of duties is not supported by the evidence on record. It
believed in Bañas’ bare and unsubstantiated denial that he was not grossly and habitually
neglectful of his duties when the record is replete with pieces of evidence showing the contrary.
Consequently, the NLRC capriciously and whimsically exercised its judgment by failing to
consider all material evidence presented to it by the petitioners and in giving credence to Bañas’
claim which is unsupported by the evidence on record.39

Bañas’ self-serving and unsubstantiated denials cannot defeat the concrete and overwhelming
evidence submitted by the petitioners. The evidence on record shows that Bañas committed
numerous infractions in his one year and eleven-month stay in Century Iron. On October 27,
2000, Century Iron gave Bañas a warning for failing to check the right quantity of materials
subject of his inventory.40 On December 29, 2000, Bañas went undertime.41 On January 2, 2001,
Bañas incurred an absence without asking for prior leave.42 On August 11, 2001, he was warned
for failure to implement proper warehousing and housekeeping procedures.43 On August 21,
2001, he failed to ensure sufficient supplies of oxygen-acetylene gases during business hours.44
On November 15, 2001, Bañas was again warned for failing to secure prior permission before
going on leave.45 In May 2002, Century Iron’s accounting department found out that Bañas made
double and wrong entries in his inventory.46

Article 282 of the Labor Code provides that one of the just causes for terminating an
employment is the employee’s gross and habitual neglect of his duties. This cause includes gross
inefficiency, negligence and carelessness.47 "Gross negligence connotes want or absence of or
failure to exercise slight care or diligence, or the entire absence of care. It evinces a thoughtless
disregard of consequences without exerting any effort to avoid them. Fraud and willful neglect of
duties imply bad faith of the employee in failing to perform his job, to the detriment of the
employer and the latter’s business. Habitual neglect, on the other hand, implies repeated failure
to perform one's duties for a period of time, depending upon the circumstances."48

To our mind, such numerous infractions are sufficient to hold him grossly and habitually
negligent.1âwphi1 His repeated negligence is not tolerable. The totality of infractions or the
number of violations he committed during his employment merits his dismissal. Moreover, gross
and habitual negligence includes unauthorized absences and tardiness,49 as well as gross
inefficiency, negligence and carelessness.50 As pronounced in Valiao v. Court of Appeals,51
"fitness for continued employment cannot be compartmentalized into tight little cubicles of
aspects of character, conduct, and ability separate and independent of each other."

Besides, the determination of who to keep in employment and who to dismiss for cause is one of
Century Iron's prerogatives. Time and again, we have recognized that the employer has the right
to regulate, according to its discretion and best judgment, ell aspects of employment, including
work assignment, working methods, processes to be followed, working regulations, transfer of
employees, work supervision, lay-off of workers and the discipline, dismissal and recall of
workers.52 It would be the height of injustice if we force an employer to retain the services of an
employee who does not value his work.

In view of all the foregoing, we find the petition meritorious.

WHEREFORE, premises considered, we hereby GRANT the petition. The assailed decision and
resolution of the Court of Appeals are REVERSED and SET ASIDE. The complaint for illegal
dismissal is DISMISSED for lack of merit. Costs against respondent Eleto B. Bañas.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

MARIANO C. DEL CASTILLO JOSE PORTUGAL PEREZ

Associate Justice Associate Justice

ESTELA M. PERLAS-BERNABE
Associate Justice

ATTESTATION

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

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
 CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's
Attestation, I certify that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes
1
Dated August 29, 2008 and filed under Rule 45 of the Rules of Court; rollo, pp. 3-20.
2
Id. at 23-30; penned by Associate Justice Bienvenido L. Reyes (now a member of this
Court), and concurred in by Associate Justices Monina Arevalo Zenarosa and Apolinario
D. Bruselas, Jr.
3
Id. at 73-74.
4
Id. at 109.
5
Ibid.
6
Ibid.
7
Id. at 4.
8
Id. at 52, 54 and 63.
9
Id. at 57.
10
Id. at 59.
11
Id. at 62.
12
Id. at 110 and 305- 306.
13
Id. at 5-6.
14
Id. at 123-136.
15
Id. at 166-176.
16
Id. at 200-202.
17
Id. at 177-183.
18
Id. at 184-198.
19
Supra note 2.
20
Rollo, pp. 3-20.
21
Id. at 73-74.
22
Id. at 31-42.
23
Id. at 8.
24
507 Phil. 130 (2005).
25
Rollo, pp. 303-308.
26
366 Phil. 439 (1999).
27
Rollo, p. 9.
28
Supra note 26, at 452.

Rigor v. Tenth Division of the Court of Appeals, 526 Phil. 852 (2006); and China
29

Banking Corporation v. Cebu Printing and Packaging Corporation, G.R. No. 172880,
August 11, 2010, 628 SCRA 154.
30
RULES OF COURT, Rule 45, Section 1.
31
In New City Builders, Inc. v. NLRC, 499 Phil. 207, 212-213 (2005), citing Insular Life
Assurance Company, Ltd. v. CA, G.R. No. 126850, April 28, 2004, 401 SCRA 79, the
Supreme Court recognized several exceptions to this rule, to wit: "(1) when the findings
are grounded entirely on speculation, surmises or conjectures; (2) when the inference
made is manifestly mistaken, absurd or impossible; (3) when there is grave abuse of
discretion; (4) when the judgment is based on a misapprehension of facts; (5) when the
findings of facts are conflicting; (6) when in making its findings the Court of Appeals
went beyond the issues of the case, or its findings are contrary to the admissions of both
the appellant and the appellee; (7) when the findings are contrary to the trial court; (8)
when the findings are conclusions without citation of specific evidence on which they are
based; (9) when the facts set forth in the petition as well as in the petitioner’s main and
reply briefs are not disputed by the respondent; (10) when the findings of fact are
premised on the supposed absence of evidence and contradicted by the evidence on
record; and (11) when the Court of Appeals manifestly overlooked certain relevant facts
not disputed by the parties, which, if properly considered, would justify a different
conclusion."
32
Leoncio v. De Vera, G.R. No. 176842, February 18, 2008, 546 SCRA 180, 184, citing
Elenita S. Binay, in her capacity as Mayor of the City of Makati, Mario Rodriguez and
Priscilla Ferrolino v. Emerita Odeña, G.R. No. 163683, June 8, 2007, 524 SCRA 248.
33
Ibid.
34
RULES OF COURT, Rule 65, Section 1.

Montoya v. Transmed Manila Corporation, G.R. No. 183329, August 27, 2009, 597
35

SCRA 334, 344.

36
See rollo, pp. 227-228, 230-234, 236, 239, and 250.
37
Id. at 173.
38
Mabeza v. NLRC, 338 Phil. 386, 396 (1997).
39
Prince Transport, Inc. v. Garcia, G.R. No. 167291, January 12, 2011, 639 SCRA 312,
325.
40
Rollo, p. 43.
41
Id. at 47.
42
Ibid.
43
Id. at 48.
44
Id. at 49.
45
Id. at 50.
46
Id. at 59.
47
Challenge Socks Corp. v. Court of Appeals (Former First Division), 511 Phil. 4, 10
(2005), citing Meralco v. NLRC, 331 Phil. 838, 847 (1996).
48
Jumuad v. Hi-Flyer Food, Inc., G.R. No. 187887, September 7, 2011, 657 SCRA 288,
300, citing St. Luke's Medical Center, Inc. and Robert Kuan v. Estrelito Notario, G.R.
No. 152166, October 20, 2010, 634 SCRA 67, 78.
49
Challenge Socks Corp. v. Court of Appeals (Former First Division), supra note 47, at
10-11; and Meralco v. NLRC, supra note 47, at 847.
50
Ibid.
51
479 Phil. 459, 470-471 (2004).
52
Challenge Socks Corp. v. Court of Appeals (Former First Division), supra note 47, at
11-12, citing Deles, Jr. v. NLRC, 384 Phil. 271, 281-282 (2000)