2S LABSTAN Case Digests

TOPIC Exceptions when Overtime Work may be Compelled AUTHOR #17_Lapuz

CASE TITLE R.B. MICHAEL PRESS vs. NICASIO C. GALIT GR NO 153510

TICKLER Offset Machine Operator; Printing Press; “Not Feeling Well” DATE February 13, 2008

DOCTRINE Art. 89 of the Labor Code empowers the employer to legally compel his employees to perform overtime work
against their will to prevent serious loss or damage:
Art. 89. EMERGENCY OVERTIME WORK
Any employee may be required by the employer to perform overtime work in any of the
following cases:
xxx
(c) When there is urgent work to be performed on machines, installations, or equipment,
in order to avoid serious loss or damage to the employer or some other cause of similar
nature;
FACTS

Respondent Galit was employed by petitioner R.B. Michael Press as an offset machine operator,
whose work schedule was from 8:00 a.m. to 5:00 p.m., Mondays to Saturdays, and he was paid PhP
230 a day. During his employment, Galit was tardy for a total of 190 times, totaling to 6,117 minutes,
and was absent without leave for a total of nine and a half days.

On 1999, respondent was ordered to render overtime service in order to comply with a job order
deadline, but he refused to do so. The following day, respondent reported for work but petitioner
Escobia told him not to work, and to return later in the afternoon for a hearing. When he returned,
a copy of an Office Memorandum was served on him.

Office Memorandum
This warning for dismissal is being issued for the following offenses:
(1) habitual and excessive tardiness
(2) committing acts of discourtesy, disrespect in addressing superiors
(3) failure to work overtime after having been instructed to do so
(4) Insubordination - willfully disobeying, defying or disregarding company authority

The offenses you’ve committed are just causes for termination of employment as provided by the
Labor Code. You were given verbal warnings before, but there had been no improvement on your
conduct.

Termination
The following day, respondent Galit was terminated from employment. The employer, through
petitioner Escobia, gave him his two-day salary and a termination letter.

Filing of Complaint for Illegal Dismissal

Respondent subsequently filed a complaint for illegal dismissal and money claims before the NLRC
Regional Arbitration Branch.

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Labor Arbiter Decision = Galit was Illegally Dismissed.
- The labor arbiter ruled that petitioners cannot use respondent's habitual tardiness and unauthorized
absences to justify his dismissal since they had already deducted the corresponding amounts from his
salary. Furthermore, the labor arbiter explained that since respondent was not subjected to any
admonition or penalty for tardiness, petitioners then had condoned the offense or that the infraction
is not serious enough to merit any penalty.

NLRC and CA Decision = Petitioner’s Appeal was dismissed for lack of merit.
- The CA found that it was not the tardiness and absences committed by respondent, but his refusal to
render overtime work on February 22, 1999 which caused the termination of his employment.
- It ruled that the time frame in which respondent was afforded procedural due process is dubitable; he
could not have been afforded ample opportunity to explain his side and to adduce evidence on his
behalf.

Petitioner’s Contention:
Petitioners aver that Galit was dismissed due to the following offenses: (1) habitual and excessive tardiness; (2)
commission of discourteous acts and disrespectful conduct when addressing superiors; (3) failure to render
overtime work despite instruction to do so; and (4) insubordination, that is, willful disobedience of, defiance to,
or disregard of company authority.
- The foregoing charges may be condensed into:
(1) tardiness constituting neglect of duty;
(2) serious misconduct; and
(3) insubordination or willful disobedience.

ISSUE/S
1. Whether or not there was just cause to terminate the employment of respondent. = YES.
2. Whether or not due process was observed in the dismissal process. = NO.

RULING/S
1. YES. There was just cause to terminate the employment of respondent.

Habitual tardiness is a form of neglect of duty. Lack of initiative, diligence, and discipline to come to work on
time everyday exhibit the employee's deportment towards work. Habitual and excessive tardiness is inimical
to the general productivity and business of the employer. This is especially true when the tardiness and/or
absenteeism occurred frequently and repeatedly within an extensive period of time.

On the Issue of Condonation

The mere fact that the numerous infractions of respondent have not been immediately subjected to sanctions
cannot be interpreted as condonation of the offenses or waiver of the company to enforce company rules. A
waiver is a voluntary and intentional relinquishment or abandonment of a known legal right or privilege. It has
been ruled that "a waiver to be valid and effective must be couched in clear and unequivocal terms which
leave no doubt as to the intention of a party to give up a right or benefit which legally pertains to him."
Hence, the management prerogative to discipline employees and impose punishment is a legal right which
cannot, as a general rule, be impliedly waived.

In the case at bar, respondent did not adduce any evidence to show waiver or condonation on the part of
petitioners. Thus, the finding of the CA that petitioners cannot use the previous absences and tardiness
because respondent was not subjected to any penalty is bereft of legal basis.

Insubordination or Willful Disobedience

For willful disobedience to be a valid cause for dismissal, these two elements must concur:

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(1) the employee's assailed conduct must have been willful, that is, characterized by a wrongful and perverse
attitude; and
(2) the order violated must have been reasonable, lawful, made known to the employee, and must pertain
to the duties which he had been engaged to discharge.

In the present case, there is no question that petitioners' order for respondent to render overtime service to
meet a production deadline complies with the second requisite.

Art. 89 of the Labor Code empowers the employer to legally compel his employees to perform overtime work
against their will to prevent serious loss or damage:
Art. 89. EMERGENCY OVERTIME WORK
Any employee may be required by the employer to perform overtime work in any of
the following cases:
xxx
(c) When there is urgent work to be performed on machines, installations, or
equipment, in order to avoid serious loss or damage to the employer or some other
cause of similar nature;
xxx
In the present case, petitioners' business is a printing press whose production schedule is sometimes flexible
and varying. It is only reasonable that workers are sometimes asked to render overtime work in order to meet
production deadlines.

Dennis Reyes, in his Affidavit, stated that in the morning of February 22, 1999, he approached and asked
respondent to render overtime work so as to meet a production deadline on a printing job order, but
respondent refused to do so for no apparent reason. Respondent, on the other hand, claims that the reason
why he refused to render overtime work was because he was not feeling well that day.

The issue now is, whether respondent's refusal or failure to render overtime work was willful; that is,
whether such refusal or failure was characterized by a wrongful and perverse attitude. The fact that
respondent refused to provide overtime work despite his knowledge that there is a production deadline
that needs to be met, and that without him, the offset machine operator, no further printing can be had,
shows his wrongful and perverse mental attitude; thus, there is willfulness.

Respondent’s Claim of “Not Feeling Well”

Respondent's excuse that he was not feeling well that day is unbelievable and obviously an afterthought. He
failed to present any evidence other than his own assertion that he was sick. Also, if it was true that he was
then not feeling well, he would have taken the day off, or had gone home earlier, on the contrary, he stayed
and continued to work all day, and even tried to go to work the next day, thus belying his excuse, which is, at
most, a self-serving statement.

Conclusion of the First Issue

We rule that respondent unjustifiably refused to render overtime work despite a valid order to do so. The
totality of his offenses against petitioner R.B. Michael Press shows that he was a difficult employee. His refusal
to render overtime work was the final straw that broke the camel's back, and, with his gross and habitual
tardiness and absences, would merit dismissal from service.

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2. NO. Due process was NOT observed in the dismissal process.

Under the twin notice requirement, the employees must be given two (2) notices before his employment could
be terminated:
(1) a first notice to apprise the employees of their fault, and
(2) a second notice to communicate to the employees that their employment is being terminated. Not to be
taken lightly of course is the hearing or opportunity for the employee to defend himself personally or by
counsel of his choice.

In King of Kings Transport v. Mamac, we had the occasion to further elucidate on the procedure relating to
the twin notice and hearing requirement, thus:

A. The first written notice to be served on the employees should contain the specific causes or grounds for
termination against them, and a directive that the employees are given the opportunity to submit their written
explanation within a reasonable period.
- "Reasonable opportunity" under the Omnibus Rules means every kind of assistance that
management must accord to the employees to enable them to prepare adequately for their defense.
This should be construed as a period of at least five (5) calendar days from receipt of the notice to
give the employees an opportunity to study the accusation against them, consult a union official or
lawyer, gather data and evidence, and decide on the defenses they will raise against the complaint.
Moreover, in order to enable the employees to intelligently prepare their explanation and defenses,
the notice should contain a detailed narration of the facts and circumstances that will serve as basis
for the charge against the employees. A general description of the charge will not suffice. Lastly, the
notice should specifically mention which company rules, if any, are violated and/or which among the
grounds under Art. 282 is being charged against the employees.

B. After serving the first notice, the employers should schedule and conduct a hearing or conference wherein
the employees will be given the opportunity to:
(1) explain and clarify their defenses to the charge against them;
(2) present evidence in support of their defenses; and
(3) rebut the evidence presented against them by the management. During the hearing or conference, the
employees are given the chance to defend themselves personally, with the assistance of a representative or
counsel of their choice. Moreover, this conference or hearing could be used by the parties as an opportunity
to come to an amicable settlement.

C. After determining that termination of employment is justified, the employers shall serve the employees a
written notice of termination indicating that: (1) all circumstances involving the charge against the employees
have been considered; and (2) grounds have been established to justify the severance of their employment.

Application of Concepts
On the surface, it would seem that petitioners observed due process (twin notice and hearing requirement):
On February 23, 1999 petitioner notified respondent of the hearing to be conducted later that day. On the
same day before the hearing, respondent was furnished a copy of an office memorandum which contained a
list of his offenses, and a notice of a scheduled hearing in the afternoon of the same day. The next day,
February 24, 1999, he was notified that his employment with petitioner R.B. Michael Press had been
terminated.

The undue haste in effecting respondent's termination shows that the termination process was a mere
simulation the required notices were given, a hearing was even scheduled and held, but respondent was not

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really given a real opportunity to defend himself; and it seems that petitioners had already decided to dismiss
respondent from service, even before the first notice had been given.

Anent the written notice of charges and hearing, it is plain to see that there was merely a general description
of the claimed offenses of respondent. The hearing was immediately set in the afternoon of February 23, 1999
the day respondent received the first notice. Therefore, he was not given any opportunity at all to consult a
union official or lawyer, and, worse, to prepare for his defense.

In the February 24, 1999 notice of dismissal, petitioners simply justified respondent's dismissal by citing his
admission of the offenses charged. It did not specify the details surrounding the offenses and the specific
company rule or Labor Code provision upon which the dismissal was grounded.

Conclusion of the Second Issue

We conclude that termination of respondent was railroaded in serious breach of his right to due process. And
as a consequence of the violation of his statutory right to due process and following Agabon, petitioners are
liable jointly and solidarily to pay nominal damages to the respondent in the amount of PhP 30,000.

WHEREFORE, premises considered, the CA Decision are hereby REVERSED and SET ASIDE. The Court declares
respondent's dismissal from employment VALID and LEGAL. Petitioners are, however, ordered jointly and
solidarily to pay respondent nominal damages in the amount of PhP 30,000 for violation of respondent's right
to due process.

NOTES

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