Janssen Pharmaceutica Vs Silayro

3/1/2020 SUPREME COURT REPORTS ANNOTATED VOLUME 546
G.R. No. 172528. February 26, 2008.*
JANSSEN PHARMACEUTICA, petitioner, vs. BENJAMIN

A. SILAYRO, respondent.
Labor Law; Appeals; While it is a recognized principle that the

Supreme Court is not a trier of facts and does not normally
embark in the evaluation of evidence adduced during trial, one of
the exceptions to this rule covers instances when the findings of
fact of the quasi-judicial agencies concerned are conflicting or
contradictory with those of the Court of Appeals.—The Court must
re-examine the factual findings of the Court of Appeals, as well as
the contrary findings of the NLRC and Labor Arbiter. While it is a
recognized principle that this Court is not a trier of facts and does
not normally embark in the evaluation of evidence adduced
during trial, this rule allows for exceptions. One of these
exceptions covers instances when the findings of fact of the trial
court, or in this case of the quasi-judicial agencies concerned, are
conflicting or contradictory with those of the Court of Appeals.
Same; Termination of Employment; Dishonesty; Negligence;
Words and Phrases; Dishonesty is a serious charge, which the
employer must adequately prove, especially when it is the basis for
termination; Since fraud implies willfulness or wrongful intent,
the innocent non-disclosure of or inadvertent errors in declaring
facts by the employee to the employer will not constitute a just
cause for the dismissal of the employee; Negligence is defined as
the failure to exercise the standard of care that a reasonably
prudent person would have exercised in a similar situation.—In
termination cases, the burden of proof rests with the employer to
show that the dismissal is for just and valid cause. Failure to do
so would necessarily mean that the dismissal was not justified
and therefore was illegal. Dishonesty is a serious charge, which
the employer must adequately prove, especially when it is the
basis for termination. In this case, petitioner had not been able to
identify an act of dishonesty, misappropriation, or any illicit act,
which the respondent may have committed in connection with the
erroneously reported product samples. While respondent was
admittedly negligent in filling out his August
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www.central.com.ph/sfsreader/session/0000017091f0874244b8919c003600fb002c009e/t/?o=False 1/21
* THIRD DIVISION.
629
and September 1998 DCR, his errors alone are insufficient

evidence of a dishonest purpose. Since fraud implies willfulness or
wrongful intent, the innocent non-disclosure of or inadvertent
errors in declaring facts by the employee to the employer will not
constitute a just cause for the dismissal of the employee. In
addition, the subsequent acts of respondent belie a design to
misappropriate product samples. So as to escape any liability,
respondent could have easily just submitted for audit only the
number of product samples which he reported. Instead,
respondent brought all the product samples in his custody during
the audit and, afterwards, honestly admitted to his negligence.
Negligence is defined as the failure to exercise the standard of
care that a reasonably prudent person would have exercised in a
similar situation. To this Court, respondent did not commit any
willful violation, rather he merely failed to exercise the standard
care required of a territory representative to carefully count the
number of product samples delivered to him in August and
September 1998.
Same; Same; Due Process; Where an employer’s ostensible
compliance with the procedural requirements of notice and
hearing took place before an offense was even committed, the
employee is robbed of his rights to explain his side, to present his
evidence and rebut what was presented against him, rights
ensured by the proper observance of procedural due process.—The
superficial compliance with two notices and a hearing in this case
cannot be considered valid where these notices were issued and
the hearing made before an offense was even committed. The first
notice, issued on 24 November 1998, was premature since
respondent was obliged to return his accountabilities only on 25
November 1998. As respondent’s preventive suspension began on
25 November 1998, he was still performing his duties as territory
representative the day before, which required the use of the
company car and other company equipment. During the
administrative hearing on 3 December 1998, both parties clarified
the confusion caused by the petitioner’s premature notice and
agreed that respondent would surrender his accountabilities as
soon as the petitioner gave its instructions. Since petitioner’s
ostensible compliance with the procedural requirements of notice
and hearing took place before an offense was even committed,
respondent was robbed of his rights to explain his side, to present
his evidence and rebut what was presented against him, rights
ensured by the proper observance of procedural due process.
630
Same; Same; Double Jeopardy; While a penalty may no longer

be imposed on offenses for which respondent has already been
punished, these offenses, among other offenses, may still be used as
justification for an employee’s dismissal.—Of all the past offenses
that were attributed to the respondent, he contests having
committed the infraction involving the unauthorized pull-outs
from customers, allegedly made in 1994. Again, the records show
that petitioner did not provide any proof to support said charge. It
must be emphasized at this point that the onus probandi to prove
the lawfulness of the dismissal rests with the employer, and in
light of petitioner’s failure to discharge the same, the alleged
offense cannot be given any credence by this Court. As for the
three remaining violations, it is unquestioned that respondent
had committed and had already been punished for them. While a
penalty may no longer be imposed on offenses for which
respondent has already been punished, these offenses, among
other offenses, may still be used as justification for an employee’s
dismissal. Hence, this Court must now take into consideration all
the offenses that respondent committed during his employment
and decide whether these infractions, taken together, constitute a
valid cause for dismissal.
Same; Same; An employee’s ten years of commendable performance
cannot be cancelled out by a single mistake made during a difficult
period of his life, a mistake that did not pose a potential danger to
his employer; The special circumstances of this case—the
employee’s family crises, the duration of his employment, and the
quality of his work during the previous years—must necessarily
influence the penalty to be meted out to him.—The ROL test is a
take-home examination intended to check a territory
representative’s understanding of information already contained
in their Sales Career Manual, wherein the examinees are even
instructed to refer to their manuals. The improper taking of this
test, while it puts into question the examinee’s moral character,
does not result in any potential loss of property or damage to the
reputation of the employer. Nor does respondent’s previous
performance show lack of knowledge required in his sales career.
Additionally, the dishonesty practiced by the employee did not
involve company property that was placed in his custody.
Furthermore, the gravity of this offense is substantially
diminished by the fact that petitioner itself had thought it
unimportant enough to merit only a one-day suspension. The
respondent’s ten years of commendable performance cannot be
631
cancelled out by a single mistake made during a difficult period of

his life, a mistake that did not pose a potential danger to his
employer. The special circumstances of this case—respondent’s
family crises, the duration of his employment, and the quality of
his work during the previous years—must necessarily influence
the penalty to be meted out to the respondent. It would be a cruel
disregard of the constitutional guarantee of security of tenure to
impose the penalty of dismissal, without giving due consideration
to the ill fortune that may befall a normally excellent employee.
PETITION for review on certiorari of a decision of the

Court of Appeals.
The facts are stated in the opinion of the Court.
Angara, Abello, Concepcion, Regala & Cruz for peti-
tioner.
Mae M. Gellecanao-Laserna for respondent.
CHICO-NAZARIO, J.:
This is a petition for review on certiorari under Rule 45
of the Rules of Court, assailing the Decision,1 dated 8
February 2006, promulgated by the Court of Appeals in
CA-G.R. SP No. 81983, reversing the Decision2 dated 7
May 2003 of the National Labor Relations Commission
(NLRC) in NLRC Case No. V-000880-99. The Court of
Appeals, in its assailed Decision, adjudged the dismissal of
respondent Benjamin Silayro by petitioner Jansen
Pharmaceutica as illegal for being an excessive and
unwarranted penalty. The appellate court determined that
the suspension of the respondent for five months without
salary as just penalty.
Petitioner is the division of Johnson & Johnson
Philippines Inc. engaged in the sale and manufacture of
pharmaceutical
_______________
1 Penned by Associate Justice Arsenio J. Magpale with Associate

Justices Vicente L. Yap and Apolinario D. Bruselas, Jr. concurring; Rollo,
pp. 66-87.
2 Rollo, pp. 555-575.
632
products. In 1989, petitioner employed respondent as

Territory/Medical Representative. During his employment,
respondent received from petitioner several awards and
citations for the years 1990 to 1997, such as Territory
Representative Award, Quota Buster Award, Sipag Award,
Safety Driver’s Award, Ring Club Award, and a
Nomination as one of the Ten Outstanding Philippine

Salesmen.3 On the dark side, however, respondent was also
investigated for, and in some cases found guilty of, several
administrative charges.
Petitioner alleged that in 1994, respondent was found
guilty of granting unauthorized premium/free goods to and
unauthorized pull-outs from customers.4 Petitioner failed
to attach records to support its allegation and to explain
the nature of and the circumstance surrounding these
infractions. Respondent, for his part, admitted to have been
guilty of granting unauthorized premium/free goods, but
vehemently denied violating the rule on, or having been
charged with, unauthorized pull-outs from customers.5
The respondent was also investigated for dishonesty in
connection with the Rewards of Learning (ROL) test. The
ROL test is a one-page take-home examination, with two
questions to be answered by an enumeration of the
standards of performance by which territory
representatives are rated as well as the sales competencies
expected of territory representatives.6 It was discovered
that respondent’s answers were written in the handwriting
of a co-employee, Joedito Gasendo. Petitioner’s
management then sent respondent a Memo dated 27 July
1998 requiring an explanation for the incident.7
_______________
3 Id., at pp. 735-736.

4 Id., at p. 10.
5 Records, p. 159.
6 Rollo, p. 691.
7 Id., at p. 692.
633
Soon thereafter, petitioner sent a subsequent Memo dated

20 August 1998 to respondent requiring the latter to
explain his delay in submitting process reports.8
On 8 September 1998, respondent submitted a written
explanation to the petitioner stating that the delay in the
submission of reports was caused by the deaths of his
grandmother and his aunt, and the hospitalization of his
mother. He also averred that he had asked his co-employee
Joedito Gasendo to write his answers to the ROL test
because at the time when the examination was due, he
already needed to leave to see his father-in-law, who was
suffering from cancer and confined in a hospital in Manila.9
Respondent was sent a new Memorandum dated 20

October 1998 for his delayed submission of process reports
due on 14 October 1998.10
Respondent was issued another Memo also dated 20
October 1998 regarding the discrepancies between the
number of product samples recorded in his Daily/Weekly
Coverage Report (DCR) and the number of product samples
found in his possession during the 14 October 1998 audit.11
The actual number of sample products found in
respondent’s possession exceeded the number of sample
products he reported to petitioner.
Respondent explained, through a “Response Memo”
dated 24 October 1998, that he failed to count the quantity
of samples when they were placed in his custody. Thus, he
failed to take note of the excess samples from previous
months. He, likewise, admitted to committing errors in
posting the samples that he distributed to some doctors
during the months of August and September 1998.12
_______________
8 Id., at p. 689.
9 Id., at p. 693.
10 Id., at p. 696.
11 Id., at p. 697.
12 Id., at p. 700.
634
On 20 November 1998, petitioner issued a Notice of

Disciplinary Action finding respondent guilty of the
following offenses (1) delayed submission of process
reports, for which he was subjected to a one-day suspension
without pay, effective 24 November 1998;13 and (2)
cheating in his ROL test, for which he was subjected again
to a one-day suspension.14
On the same date, petitioner likewise issued a Notice of
Preventive Suspension against respondent for “Dishonesty
in Accomplishing Other Accountable Documents” in
connection with the discrepancy between the quantities of
sample products in respondent’s report and the petitioner’s
audit for the September 1998 cycle. In addition, the Notice
directed the respondent to surrender to the petitioner the
car, promotional materials, and all other accountabilities
on or before 25 November 1998. It was also stated therein
that since this was respondent’s third offense for the year,
he could be dismissed under Section 9.5.5(c) of petitioner’s
Code of Conduct.15
Before 25 November 1998 or the date given by petitioner

for respondent to surrender all his accountabilities, a
Memorandum dated 24 November 1998 was issued to
respondent for the following alleged infractions: (1) Failure
to turn over company vehicles assigned after the receipt of
instruction to that effect from superiors, and (2) Refusing
or neglecting to obey Company management orders to
perform work without justifiable reason.16
Respondent wrote a letter dated 26 November 1998
addressed to the petitioner explaining that he failed to
surrender his accountabilities because he thought that this
was tantamount to an admission that the charges against
him
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13 Id., at p. 702.
14 Id., at p. 707.
15 Id., at p. 703.
16 Id., at p. 704.
635
were true and, thus, could result in his termination from

the job.17
An administrative investigation of the respondent’s case
was held on 3 December 1998. Respondent was
accompanied by union representative Lyndon Lim. The
parties discussed matters concerning the discrepancy in
respondent’s report and petitioner’s audit on the number of
product samples in respondent’s custody in September
1998. They were also able to clarify among themselves
respondent’s failure to return his accountabilities and, as a
consequence, respondent promised to surrender the same.
They further agreed that another administrative hearing
will be set, but no further hearings were held.18
In line with his promise to surrender his
accountabilities, respondent wrote a letter, dated 9
December 1998, asking his superiors where he should
return his accountabilities.19 Union representative Dominic
Regoro also made requests, on behalf of respondent, for
instructions, to whom petitioner’s District Supervisor
Raymond Bernardo replied via electronic mail on 16
December 1998. According to Bernardo, he was still in the
process of making arrangements with Ruben Cauton,
petitioner’s National Sales Manager, in connection with the
return of respondent’s accountabilities.20 Respondent
maintained that he did not receive any instructions from

petitioner.
In a letter dated 28 December 1998, petitioner
terminated the services of respondent.21 Petitioner found
respondent guilty of dishonesty in accomplishing the report
on the number of product samples in his possession and
failing to return the company vehicle and his other
accountabilities in viola-
_______________
17 Records, p. 44.
18 Rollo, pp. 706-707.
19 Id., at p. 708.
20 Records, p. 165.
21 Rollo, p. 375-376.
636
tion of Sections 9.2.9 and 9.2.4 of the Code of Conduct.22

Petitioner also found respondent to be a habitual offender
whose previous offenses included: (1) Granting
unauthorized premium/free goods to customer in 1994; (2)
Unauthorized pull-out of stocks from customer in 1994; (3)
Delay in submission of reports despite oral admonition and
written reprimand in 1998; and (4) Dishonesty in
accomplishing other accountable documents or instruments
(in connection with the ROL test) in 1998.
Even after respondent’s termination from employment,
there was still contact between petitioner and respondent
regarding the latter’s accountabilities still in his
possession. Sometime in early 1999, in a telephone
conversation, respondent informed petitioner that he will
return his accountabilities only upon demand from the
proper governmental agency.23 A demand letter dated 3
February 1999 was sent to respondent by petitioner
ordering the return of the company car, promotional
materials, samples, a slide projector, product manuals,
product monographs, and training binders.24
On 14 January 1999, respondent filed a Complaint25
against petitioner and its officers, Rafael Besa, Rueben
Cauton, Victor Lapid, and Raymond Bernardo before the
Sub-Regional Arbitration Branch of the NLRC in Iloilo City
for (a)
_______________
22 Section 9.2.9 of the Code of Conduct reads:
Failure to turn over company vehicle assigned after receipt of

instructions to that effect.
Section 9.2.4 of the Code of Conduct reads:
Refusing or neglecting to obey Company management orders to
perform work without justifiable reason.
23 The date when this telephone call took place is not clear. In the
letter dated 3 February 1999, written by petitioner to respondent, it is
alleged that this telephone call took place on 1 February 1999, while in
the (pleading with date) it took place sometime in January 1999.
24 Rollo, p. 711.
25 Records, p. 1-2.
637
Unfair Labor Practice; (b) Illegal Dismissal; (c)

Reimbursement of operating and representation expenses
under expense reports for October and November 1998; (d)
Nonpayment of salary, bonuses and other earned benefits
for December 1998 like rice allocation, free goods
allocation, etc.; and (e) Damages and attorney’s fees.
In a Decision dated 31 August 1999, the Labor Arbiter
ruled that respondent committed infractions which
breached company rules, and which were sufficient grounds
for dismissal. However, the Labor Arbiter found the
penalty of dismissal to be too harsh considering the
respondent’s circumstances and ordered his reinstatement
without payment of back wages.26 The dispositive portion
of the Decision states that:
“WHEREFORE, premises considered, judgment is rendered

ordering respondents firm to reinstate complainant to his former
or equivalent position without backwages.
All other claims are hereby dismissed.”27
On appeal, the NLRC modified the Decision of the Labor

Arbiter by declaring that reinstatement was improper
where respondent was dismissed for just and authorized
causes.28 In a Decision dated 7 May 2003, it pronounced
that:
“WHEREFORE, premises considered, complainant’s appeal is

hereby DISMISSED. The decision of the Labor Arbiter is hereby
AFFIRMED with MODIFICATION deleting the award of
reinstatement.”29
Respondent filed a Petition for Certiorari under Rule 65

of the Rules of Court before the Court of Appeals. In
reversing the Decision of the NLRC, the appellate court
pronounced
_______________
26 Rollo, pp. 264-265.

27 Id., at p. 266.
28 Id., at pp. 216-217.
29 Id., at p. 575.
638
that the causes were insufficient for the dismissal of

respondent since respondent’s acts were not motivated by
dishonesty, but were caused by mere inadvertence. Thus, it
concluded that the offenses committed by respondent
merited only a penalty of suspension for five months
without pay. The appellate court also noted that petitioner
committed some lapses in its compliance with procedural
due process. It further took into account the successive
deaths and sickness in respondent’s family.30 The
dispositive part of the decision reads:
“WHEREFORE, premises considered, the petition is

GRANTED. Thus, the Decision and Resolution respectively dated
7 May 2003 and 14 October 2003 are hereby SET ASIDE.
Accordingly, Judgment is hereby rendered:
a) Declaring petitioner’s dismissal to be illegal;
b) Reinstating petitioner to the same or equivalent position
without loss of seniority rights and other privileges;
c) Ordering the payment of backwages (inclusive of
allowances and other benefits or their monetary equivalent),
computed from the time compensation was withheld up to the
time of actual reinstatement; Provided that, from such computed
amount of backwages, a deduction of five (5) months’ (sic) salary
be made to serve as penalty; and
d) If reinstatement is no longer feasible, ordering the
payment of separation pay comprising of one month salary per
year of service computed from date of employment up to finality of
this decision, in addition to the award of backwages.
Let the records of this case be remanded to the Labor Ariter a
quo for the proper computation of the foregoing.”31
Hence, this Petition, wherein the following issues were

raised:
_______________
30 Id., at pp. 78-85.

31 Id., at pp. 85-86.
639
I
WHETHER OR NOT THE COURT OF APPEALS GRAVELY
ERRED IN REVERSING THE UNIFORM FACTUAL FINDINGS
OF THE NLRC AND THE LABOR ARBITER
II
WHETHER OR NOT RESPONDENT’S DISMISSAL FOR HIS
FAILURE TO TRUTHFULLY ACCOMPLISH REPORTS,
DELIBERATE AND REPEATED FAILURE TO SUBMIT
REQUIRED REPORTS AND HIS DELIBERATE DISREGARD
OF HIS SUPERIOR’S ORDER TO SURRENDER HIS
ACCOUNTABILITIES TANTAMOUNT TO DISHONESTY,
GROSS AND HABITUAL NEGLECT OF DUTY, WILLFUL
DISOBEDIENCE OF COMPANY POLICY, AND BREACH OF
TRUST AND CONFIDENCE REPOSED IN HIM BY THE
COMPANY UNDER THE PROVISIONS OF THE LABOR CODE
WAS LEGAL, VALID AND CARRIED OUT WITH DUE
PROCESS
III
WHETHER OR NOT THE TOTALITY OF INFRACTIONS
COMMITTED BY RESPONDENT FURTHER MERITED HIS
TERMINATION FROM THE COMPANY’S EMPLOY
IV
WHETHER OR NOT THE RESPONDENT HAS ANY BASIS
FOR CLAIMING AN AWARD OF REINSTATEMENT AND
BACKWAGES.32
This petition is without merit.

The main question in this case is whether or not
sufficient grounds existed for the dismissal of the
respondent. To constitute a valid dismissal from
employment, two requisites must concur: (1) the dismissal
must be for any of the causes provided in Article 282 of the
Labor Code; and, (2) the employee
_______________
32 Id., at pp. 1276-1277.
640
must be given an opportunity to be heard and to defend

himself.33
In this case, the Court must re-examine the factual
findings of the Court of Appeals, as well as the contrary
findings of the NLRC and Labor Arbiter. While it is a
recognized principle that this Court is not a trier of facts
and does not normally embark in the evaluation of evidence
adduced during trial, this rule allows for exceptions.34 One
of these exceptions covers instances when the findings of
fact of the trial court, or in this case of the quasi-judicial

agencies concerned, are conflicting or contradictory with
those of the Court of Appeals.35
In the termination letter dated 28 December 1998,
respondent was dismissed on the ground that he committed
the following offenses: (1) dishonesty in accomplishing the
report
_______________
33 Molato v. National Labor Relations Commission, 334 Phil. 39, 41-42;

266 SCRA 42, 45 (1997).
34 The following have been recognized as exceptions to the rule that
the findings of facts of the Court of Appeals are conclusive and binding: (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 facts
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. (Pilipinas Shell
Petroleum Corporation v. Gobonseng, Jr., G.R. No. 163562, 21 July 2006,
496 SCRA 305, 316.)
35 Litonjua v. Fernandez, G.R. No. 148116, 14 April 2004, 427 SCRA
478, 489.
641
on the number of product samples in his possession; and (2)

his failure to return the company vehicle and other
accountabilities in violation of Sections 9.2.9 and 9.2.4 of
the Code of Conduct. In addition to these offenses,
petitioner took into account that the petitioner committed
the following infractions in the past: (1) granting
unauthorized premium/free goods in 1994; (2) unauthorized
pull-outs from customers in 1995; (3) cheating during the
ROL exam in 1998; and (4) three infractions of delayed
process reports in 1998.
Initially, the Court must determine whether the
respondent violated the Code of Conduct with his
dishonesty in accomplishing his report on product samples

and/or failure to return the company vehicle and other such
accountabilities. The records of this case negate a finding of
such culpability on the part of the respondent.
Petitioner failed to present evidence that respondent
was guilty of dishonesty in accomplishing the DCR,
wherein he was supposed to indicate the number of product
samples in his possession for August and September 1998.
Petitioner merely relied on the fact that the number of
product samples the respondent reported was incorrect,
and the number of product samples later found in his
possession exceeded that which he reported. Respondent
admitted that when the product samples had arrived, he
failed to check if the number of product samples indicated
in the DCR corresponded to the number actually delivered
and that he made mistakes in posting the product samples
distributed during the period in question.
In termination cases, the burden of proof rests with the
employer to show that the dismissal is for just and valid
cause. Failure to do so would necessarily mean that the
dismissal was not justified and therefore was illegal.36
Dishon-
_______________
36 National Labor Relations Commission v. Salgarino, G.R. No.

164376, 31 July 2006, 497 SCRA 361, 383.
642
esty is a serious charge, which the employer must

adequately prove, especially when it is the basis for
termination.
In this case, petitioner had not been able to identify an
act of dishonesty, misappropriation, or any illicit act, which
the respondent may have committed in connection with the
erroneously reported product samples. While respondent
was admittedly negligent in filling out his August and
September 1998 DCR, his errors alone are insufficient
evidence of a dishonest purpose. Since fraud implies
willfulness or wrongful intent, the innocent non-disclosure
of or inadvertent errors in declaring facts by the employee
to the employer will not constitute a just cause for the
dismissal of the employee.37 In addition, the subsequent
acts of respondent belie a design to misappropriate product
samples. So as to escape any liability, respondent could
have easily just submitted for audit only the number of
product samples which he reported. Instead, respondent
brought all the product samples in his custody during the

audit and, afterwards, honestly admitted to his negligence.
Negligence is defined as the failure to exercise the standard
of care that a reasonably prudent person would have
exercised in a similar situation.38 To this Court, respondent
did not commit any willful violation, rather he merely
failed to exercise the standard care required of a territory
representative to carefully count the number of product
samples delivered to him in August and September 1998.
In the Memorandum dated 20 November 1998,
petitioner ordered respondent to return the company
vehicle and all other accountabilities by 25 November
1998. Petitioner issued its first notice on 24 November
1998, even before respondent was obligated to return his
accountabilities. Hence, respondent could not yet have
committed any offense when petitioner issued the first
notice. Confused by petitioner’s arbitrary action,
respondent did not return his ac-
_______________
37 Department of Labor Manual, Section 434301(3)

38 Black’s Law Dictionary, 8th ed., 1999.
643
countabilities, but immediately explained in a letter dated

26 November 1998 his reasons for failing to return his
accountabilities on 25 November 1998 as previously
ordered by the petitioner.
During the company hearing held on 3 December 1998,
respondent offered to return his accountabilities in
accordance with the instructions to be given by the
petitioner. In a letter dated 9 December 1998 addressed to
the petitioner, respondent reiterated his request for
instructions on the return of his accountabilities. There is
no showing that petitioner replied to respondent’s letter.
The letter written by petitioner’s District Supervisor
Raymond Bernardo to union representative Dominic
Regoro sent through electronic mail on 16 December 1998
still provided no definite instructions to the respondent for
the return of his accountabilities. This is the last
communication between the parties on the matter until
petitioner wrongfully dismissed the respondent on 28
December 1998 for deliberately refusing to surrender his
accountabilities, among other grounds. The petitioner does
not refer in its pleadings to any instance after the company
hearing was held and before the respondent was dismissed
wherein it had finally instructed the respondent as to how

he may turn over his accountabilities. Per petitioner’s
pleadings, belated demands for the surrender of
respondent’s accountabilities were made in January and
February 1999, after respondent had already been
dismissed. Clearly, the charge against respondent of
insubordination to the petitioner’s instructions for the
surrender of his accountabilities was unfounded since the
respondent was still waiting for said instructions when he
was dismissed.
Moreover, petitioner failed to observe procedural due
process in connection with the aforementioned charge.
Section 2(d) of Rule 1 of The Implementing Rules of Book
VI states that:
“For termination of employment based on just causes as

defined in Article 282 of the Labor Code:
644
(i) A written notice served on the employee specifying the

ground or grounds for termination, and giving said employee
reasonable opportunity within which to explain his side.
(ii) A hearing or conference during which the employee
concerned, with the assistance of counsel if he so desires is given
opportunity to respond to the charge, present his
evidence, or rebut the evidence presented against him.
(iii) A written notice of termination served on the employee,
indicating that upon due consideration of all the circumstances,
grounds have been established to justify his termination.
(Emphases supplied.)
From the aforecited provision, it is implicit that these

requirements afford the employee an opportunity to
explain his side, respond to the charge, present his or her
evidence and rebut the evidence presented against him or
her.
The superficial compliance with two notices and a
hearing in this case cannot be considered valid where these
notices were issued and the hearing made before an offense
was even committed. The first notice, issued on 24
November 1998, was premature since respondent was
obliged to return his accountabilities only on 25 November
1998. As respondent’s preventive suspension began on 25
November 1998, he was still performing his duties as
territory representative the day before, which required the
use of the company car and other company equipment.
During the administrative hearing on 3 December 1998,
both parties clarified the confusion caused by the
petitioner’s premature notice and agreed that respondent

would surrender his accountabilities as soon as the
petitioner gave its instructions. Since petitioner’s
ostensible compliance with the procedural requirements of
notice and hearing took place before an offense was even
committed, respondent was robbed of his rights to explain
his side, to present his evidence and rebut what was
presented against him, rights ensured by the proper
observance of procedural due process.
645
Of all the past offenses that were attributed to the

respondent, he contests having committed the infraction
involving the unauthorized pull-outs from customers,
allegedly made in 1994. Again, the records show that
petitioner did not provide any proof to support said charge.
It must be emphasized at this point that the onus probandi
to prove the lawfulness of the dismissal rests with the
employer,39 and in light of petitioner’s failure to discharge
the same, the alleged offense cannot be given any credence
by this Court. As for the three remaining violations, it is
unquestioned that respondent had committed and had
already been punished for them.
While a penalty may no longer be imposed on offenses
for which respondent has already been punished, these
offenses, among other offenses, may still be used as
justification for an employee’s dismissal. Hence, this Court
must now take into consideration all the offenses that
respondent committed during his employment and decide
whether these infractions, taken together, constitute a
valid cause for dismissal.
Undoubtedly, respondent was negligent in reporting the
number of product samples in his custody for August and
September 1998. He also committed three other offenses in
the past. First, he was found guilty of and penalized for
granting unauthorized free goods in 1994. Secondly, he
incurred delays in submitting his process reports for
August, September and October 1998, for which charge he
was punished with one-day suspension. Lastly, he cheated
in an ROL test in July 1998 for which he was punished
with another one-day suspension.
Respondent’s offense of granting unauthorized free
goods was vaguely discussed. Petitioner did not offer any
evidence in this connection; it was given credence only
because of respondent’s admission of the same. What acts
constituted this offense and the circumstances surrounding
it were not ex-
_______________
39 National Labor Relations Commission v. Salgarino, supra note 36.
646
plained. However, the records show that in the same year it

was committed, in 1994, petitioner still gave respondent
two awards: membership to the Wild Boar Society and the
Five-Year Service Award.40 Absent any explanation which
would give this offense substantial weight and importance,
it can only be presumed that petitioner did not consider the
offense as sufficiently momentous to disqualify respondent
from receiving an award or to even just issue the
respondent a warning that a subsequent offense would
result in the termination of his employment.
The rest of the infractions imputed to the respondent
were committed during the time he was undergoing serious
family problems. His inability to comply with the deadlines
for his process reports and his lack of care in accounting for
the product samples in his custody are understandably the
result of his preoccupation with very serious problems.
Added to the pressure brought about by the numerous
charges he found himself facing, his errors and negligence
should be viewed in a more compassionate light.
Petitioner’s inability to keep up with his deadlines and
his carelessness with his report on product samples during
a difficult time in his life are in no way comparable to the
transgressions in the cases cited by petitioner involving
other territory representatives—Chua v. National Labor
Relations Commission41 and Gustilo v. Wyeth Philippines.42
In the Chua case, it was not a mere case of delay in the
submission of reports and the occasional mistakes in the
DCR, but an established pattern of inattention in the
submission and accomplishing of his reports. The employee
therein did not even submit some of the DCRs, while other
DCRs were belatedly submitted in batches covering two to
three months. Doctors’ call cards lacked either the
corresponding dates or the signatures of the doctors
concerned. In the Gustillo case, the em-
_______________
40 Records, p. 7.
41 G.R. No. 146780, 11 March 2005, 453 SCRA 244.
42 G.R. No. 149629, 4 October 2004, 440 SCRA 67.
647
ployee falsified his application form, a gasoline receipt, a

report of his trade outlet calls, and misused his leaves.
Evidently, the employee in this case misappropriated
company resources by making claims for falsified expenses
and making personal calls in lieu of trade outlet calls. In
this case, respondent had not defrauded the petitioner of
its property.
The gravest charge that the respondent faced was
cheating in his ROL test. Although he avers that he
formulated the answers himself and that he merely allowed
his co-employee Joedito Gasendo to write down his answers
for him, this Court finds this excuse to be very flimsy. The
ROL test consists of one page and two straightforward
questions, which can be answered by more or less ten
sentences. Respondent could have spared the few minutes
it would take to write the examination. If he had lacked the
time due to a family emergency, a request for an extension
would have been the more reasonable and honest
alternative.
Despite the disapproving stance taken by this Court
against dishonesty, there have been instances when this
Court found the ultimate penalty of dismissal excessive,
even for cases which bear the stigma of deceit.
In Philippine Long Distance Telephone Company v.
National Labor Relations Commission,43 an employee
intervened in the anomalous connection of four telephone
lines. It was, likewise, established in Manila Electric
Company v. National Labor Relations Commission,44 that
the employee was involved in the illegal installation of a
power line. In both cases, the violations were clearly
prejudicial to the economic activity of his employer. Finally,
in National Labor Relations Commission v. Salgarino,45 a
school teacher tampered with the grades of her students,
an act which was prejudicial to the school’s reputation.
Notably, the Court stopped short of dis-
_______________
43 362 Phil. 352; 303 SCRA 9 (1999).

44 G.R. No. 78763, 12 July 1989, 175 SCRA 277.
45 Supra note 36 at p. 361.
648
missing these employees for offenses more serious than the

present case.
In this case, the ROL test is a take-home examination
intended to check a territory representative’s
understanding of information already contained in their

Sales Career Manual, wherein the examinees are even
instructed to refer to their manuals. The improper taking
of this test, while it puts into question the examinee’s
moral character, does not result in any potential loss of
property or damage to the reputation of the employer. Nor
does respondent’s previous performance show lack of
knowledge required in his sales career. Additionally, the
dishonesty practiced by the employee did not involve
company property that was placed in his custody.
Furthermore, the gravity of this offense is substantially
diminished by the fact that petitioner itself had thought it
unimportant enough to merit only a one-day suspension.
The respondent’s ten years of commendable performance
cannot be cancelled out by a single mistake made during a
difficult period of his life, a mistake that did not pose a
potential danger to his employer.
The special circumstances of this case—respondent’s
family crises, the duration of his employment, and the
quality of his work during the previous years—must
necessarily influence the penalty to be meted out to the
respondent. It would be a cruel disregard of the
constitutional guarantee of security of tenure to impose the
penalty of dismissal, without giving due consideration to
the ill fortune that may befall a normally excellent
employee.
In National Labor Relations Commission v. Salgarino,46
special consideration was given to the fact that the
respondent therein had been in the employ of the
petitioners therein for 10 years and that she was a
recipient of numerous academic excellence awards and
recognized by her students and some of her peers in the
profession as a competent teacher.
_______________
46 Id.
649
The Court, in other cases, has repeatedly ruled that in

determining the penalty to be imposed on an erring
employee, his or her length of service must be taken into
account.47 In Brew Master International, Inc., v. National
Federation of Labor Unions,48 the emotional, psychological,
spiritual and physical stress and strain undergone by the
employee during a family crisis were regarded as special
circumstances which precluded his dismissal from service,
despite his prolonged absence from work. The Court

explains the circumspection it exercises when faced with
the imposition of the extremely severe penalty of dismissal
thus:
“The employer’s prerogative to discipline its employee must be

exercised without abuse of discretion. Its implementation should
be tempered with compassion and understanding. While an
employer has the inherent right to discipline its employees, we
have always held that this right must always be exercised
humanely, and the penalty it must impose should be
commensurate to the offense involved and to the degree of its
infraction. The employer should bear in mind that, in the exercise
of such right, what is at stake is not the employee’s position but
her livelihood as well. The law regards the workers with
compassion. Even where a worker has committed an infraction, a
penalty less punitive may suffice, whatever missteps may be
committed by labor ought not to be visited with a consequence so
severe. This is not only the law’s concern for workingman. There
is, in addition, his or her family to consider. Unemployment
brings untold hardships and sorrows upon those dependent on the
wage-earner.”49
Respondent’s violations of petitioner’s Code of Conduct,

even if taken as a whole, would not fall under the just
causes
_______________
47 De Guzman v. National Labor Relations Commissions, 371 Phil. 192;

312 SCRA 266 (1999); Philippine Long Distance Telephone Company v.
National Labor Relations Commission, supra note 43 at p. 360; pp. 14-15.
48 337 Phil. 728, 735-736; 271 SCRA 275, 283 (1997).
49 De Guzman v. National Labor Relations Commissions, supra note 47
at p. 205; pp. 277-278.
650
of termination provided under Article 282 of the Labor

Code.50 They are mere blunders, which may be corrected.
Petitioner failed to point out even a potential danger that
respondent would misappropriate or improperly dispose of
company property placed in his custody. It had not shown
that during his employment, respondent took a willfully
defiant attitude against it. It also failed to show a pattern
of negligence which would indicate that respondent is
incapable of performing his responsibilities. At any other
time during his employment, respondent had shown
himself a commendable worker.
Nonetheless, the infractions committed by the

respondent, while disproportionate to a penalty of
dismissal, will not be overlooked. The suspension of five
months without pay, imposed by the Court of Appeals,
would serve as a sufficient and just punishment for his
violations of the company’s Code of Conduct.
IN VIEW OF THE FOREGOING, the instant Petition is
DISMISSED and the assailed Decision of the Court of
Appeals in CA-G.R. SP No. 81983, promulgated on 8
February 2006, is AFFIRMED. Costs against the
petitioner.
_______________
50 Article 282. Termination by employer.—

An employer may terminate an employment for any of the following
causes:
(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 representative; and
(e) Other causes analogous to the foregoing.
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3/1/2020 SUPREME COURT REPORTS ANNOTATED VOLUME 546

G.R. No. 172528. February 26, 2008.*

JANSSEN PHARMACEUTICA, petitioner, vs. BENJAMIN

Labor Law; Appeals; While it is a recognized principle that the

and September 1998 DCR, his errors alone are insufficient

Same; Same; Double Jeopardy; While a penalty may no longer

cancelled out by a single mistake made during a difficult period of

PETITION for review on certiorari of a decision of the

1 Penned by Associate Justice Arsenio J. Magpale with Associate

products. In 1989, petitioner employed respondent as

Nomination as one of the Ten Outstanding Philippine

3 Id., at pp. 735-736.

Soon thereafter, petitioner sent a subsequent Memo dated

Respondent was sent a new Memorandum dated 20

On 20 November 1998, petitioner issued a Notice of

Before 25 November 1998 or the date given by petitioner

were true and, thus, could result in his termination from

maintained that he did not receive any instructions from

tion of Sections 9.2.9 and 9.2.4 of the Code of Conduct.22

22 Section 9.2.9 of the Code of Conduct reads:

Failure to turn over company vehicle assigned after receipt of

Unfair Labor Practice; (b) Illegal Dismissal; (c)

“WHEREFORE, premises considered, judgment is rendered

On appeal, the NLRC modified the Decision of the Labor

“WHEREFORE, premises considered, complainant’s appeal is

Respondent filed a Petition for Certiorari under Rule 65

26 Rollo, pp. 264-265.

that the causes were insufficient for the dismissal of

“WHEREFORE, premises considered, the petition is

Hence, this Petition, wherein the following issues were

30 Id., at pp. 78-85.

This petition is without merit.

32 Id., at pp. 1276-1277.

must be given an opportunity to be heard and to defend

fact of the trial court, or in this case of the quasi-judicial

33 Molato v. National Labor Relations Commission, 334 Phil. 39, 41-42;

on the number of product samples in his possession; and (2)

dishonesty in accomplishing his report on product samples

36 National Labor Relations Commission v. Salgarino, G.R. No.

esty is a serious charge, which the employer must

brought all the product samples in his custody during the

37 Department of Labor Manual, Section 434301(3)

countabilities, but immediately explained in a letter dated

wherein it had finally instructed the respondent as to how

“For termination of employment based on just causes as

(i) A written notice served on the employee specifying the

From the aforecited provision, it is implicit that these

petitioner’s premature notice and agreed that respondent

Of all the past offenses that were attributed to the

39 National Labor Relations Commission v. Salgarino, supra note 36.

plained. However, the records show that in the same year it

ployee falsified his application form, a gasoline receipt, a

43 362 Phil. 352; 303 SCRA 9 (1999).

missing these employees for offenses more serious than the

understanding of information already contained in their

The Court, in other cases, has repeatedly ruled that in

despite his prolonged absence from work. The Court

“The employer’s prerogative to discipline its employee must be

Respondent’s violations of petitioner’s Code of Conduct,