WILLFUL BREACH OF TRUST CANNOT BE ESTABLISHED BY ERRONEOUS PRESUMPTION OF CONSPIRACY IN A THEFT CASE

Willful breach of trust is a ground for dismissal. A breach is willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently.

Thus, the SC held in the following case:

Lepanto Consolidated Mining Company vs. Mamaril, et al.
G.R. No. 225725, January 16, 2019

Facts:

Petitioner Lepanto Consolidated Mining Company (Lepanto) hired respondent Maximo C. Mamaril (Mamaril) as security guard on November 14, 2003.

Mamaril was assigned to the Security Reaction Force (SRF), a group of security guards tasked to do special duties and one that would “react” accordingly in case of any eventuality without pulling out posted security guards which would create a vacuum in the said posts. SRF is a group of security guards tasked to do special duties for the company.

On 8 October 2006, at around 7 :25 p.m., Lepanto Security Guard Intelligence Operatives Arthur Bangkilas (Bangkilas) and Romeo Velasco (Velasco) apprehended Eliseo Sumibang, Jr. (Sumibang), an employee of Lepanto Mine Division who worked as a mucker, for stealing skinned copper wires from the Lepanto Mine Division located in Sapid, Mankayan, Benguet. Mamaril, the guard on duty at that time, was also apprehended since he was the one who allegedly opened the man door of the Tubo Collar gate and allegedly conspired with Sumibang so that the wires would be brought out and loaded into a tricycle. Thereafter, Sumibang and Mamaril were both placed under preventive suspension by the company for qualified theft of skinned copper wires.

At the formal hearing Mamaril stated that he was the 3rd shift guard assigned at the Tubo Collar gate. Mamaril was assigned not only to guard the Tubo Collar gate but also to patrol and inspect the adjacent buildings such as the compressor, lamp house, hoist room, shaft and perimeter fence, and the National Power Corporation (NPC) gate. Mamaril denied that he was involved or that he conspired with Sumibang in the alleged qualified theft. Mamaril claimed that on 8 October 2006 he was on roving patrol at the NPC station when the theft occurred. He narrated that about past 7:00 in the evening, he opened the man door and allowed Foreman Arceo Manginga to exit the premises. Afterwards, NPC Security Guard Salvador Macaraeg arrived and together they conducted a roving inspection of the NPC and the compressor compound.

Mamaril admitted that he left the man door hooked on its barrel bolt but did not padlock it since the employees of the Diamond Drilling Corporation of the Philippines, who were underground at that time, might come out anytime. At the back of the shaft the mechanics working for NPC were attending to their welding job. Suddenly, Mamaril heard somebody blew a whistle at the direction of the Tubo Collar gate. Immediately, he went to his post and saw some security men so he unhooked the barrel bolt of the man door and allowed them to enter. Mamaril denied having knowledge and participation in the theft of the skinned copper wires. Mamaril stated that his only fault, if any, was that he forgot to secure the man door. Padlocking the man door is a standard operating procedure of the company if the man door is not in use. Mamaril submitted the sworn affidavits of mechanics who all saw him on roving patrol, while the theft was taking place.

Tubo Electrical Foreman Andrew Dacyon also gave a statement. Dacyon stated that they had no losses of power line stock at the Tubo Electrical storage and Tubo Collar compound. Dacyon surmised that the skinned copper wires recovered by the security men might have come from the abandoned places in the mine underground. Security Guard Salvador Macaraeg and miner Nelson Badua also gave their own recollection of the events on the date in question.

After the investigation, Lepanto’s Security Investigator submitted an Investigation Report that the estimated value of the stolen items was worth P16,898.85. Thereafter, Lepanto’s Legal Office submitted a Resolution finding Mamaril guilty of qualified theft for conspiring with Sumibang in pilfering or stealing skinned copper wires on the night of 8 October 2006. Lepanto dismissed Mamaril from employment for dishonesty and breach of trust and confidence.

Mamaril filed a complaint against Lepanto with the NLRC RAB-CAR for illegal dismissal with claims for payment of his full backwages or in lieu thereof, payment of separation pay, overtime pay, rest day pay, damages and attorney’s fees. Thereafter, several security guards of Lepanto and members of the SRF also filed a complaint with the NLRC RAB-CAR for payment of overtime pay, rest day pay, night shift differentials, moral and exemplary damages, and attorney’s fees. More aggrieved members of the SRF filed another complaint against Lepanto with the NLRC RAB-CAR for payment of overtime pay, damages, and attorney’s fees. Upon motion, these cases were all consolidated.

LA Ruling:

In a Joint Decision, the LA ruled in favor of Lepanto.

The Labor Arbiter declared that as a security guard in charge of the handling, custody, care, and protection of company property, Mamaril occupied a position of trust and confidence. Thus, he was terminated for a just cause. The Labor Arbiter gave credence to the testimonies of Bangkilas and Velasco and found the testimonies of Mamaril’s witnesses, who did not have any knowledge of the fact of pilferage, as hearsay. With regard to the money claims, the Labor Arbiter declared that Mamaril, et al. failed to discharge the burden of proving that they are entitled to such money claims.

Mamaril, et al. appealed to the NLRC.

NLRC Ruling:

The NLRC partially granted the appeal and declared that the dismissal of Mamaril from the service was without any valid and just cause.

The NLRC found the claim of Bangkilas and Velasco that they recognized Mamaril as the one who opened the man door to be physically impossible, improbable and contrary to human experience given that (1) it was dark and the light at the guard post was switched off, (2) Bangkilas and Velasco were positioned at the back of the store located along the national road which was more or less 40 meters away from the man door, (3) the only illumination came from a bulb post along the left perimeter fence road near the outside gate nearer to the two guards, and ( 4) the incident happened in more or less a minute.

The NLRC added that there was no reason to doubt the alibi of Mamaril that he was on roving duty when the incident occurred and his admission that he had been lax in leaving his post, under pain of possible sanction, without padlocking the man door first. The NLRC declared that Mamaril was entitled to separation pay and full backwages. However, with regard to other complainants, the NLRC found that they failed to present sufficient evidence to prove that they are entitled to overtime pay, holiday pay, and rest day pay.

Both parties filed Partial Motions for Reconsideration. The NLRC partly granted the motion for reconsideration filed by Mamaril, et al. and ordered Lepanto to pay them overtime pay, holiday pay, and rest day pay.

Lepanto filed a Petition for Certiorari with the CA.

CA Ruling:

The CA decided in favor of Mamaril, et al. Lepanto filed a Motion for Partial Reconsideration which was denied by the CA.

Hence, the petition before the SC.

Issue/s:

Whether or not the affidavits of security guards who were positioned at the back of a store along the national road and of considerable distance from the Tubo Collar gate, stating that Mamaril conspired in a theft incident by opening the gate, can establish the charge of loss of trust and confidence

Whether or not assumption of conspiracy can be made when an employee was caught red-handed of theft of company property which was taken through the gate manned by the Mamaril

Whether or not an admission in affidavits by company officers that Mamaril, et al. rendered overtime work and work during their holiday and rest days on the period specified therein places the burden on Lepanto to prove payment thereof

SC Ruling:

The SC did not find merit in the petition.

The SC held that in dismissal cases, the burden of proof is on the employer to show that the employee was dismissed for a valid and just cause. Here, Lepanto dismissed Mamaril based on loss of trust and confidence. To be a valid ground for dismissal, the loss of trust and confidence must be based on a willful breach and founded on clearly established facts.

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A breach is willful if it is done intentionally, knowingly and purposely, without justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. Loss of trust and confidence must rest on substantial grounds and not on the employer’s arbitrariness, whims, caprices or suspicion; otherwise, the employee would eternally remain at the mercy of the employer. The employer, thus, carries the burden of clearly and convincingly establishing the facts upon which loss of confidence in the employee may be made to rest.

Lepanto contends that Mamaril is not an ordinary outsourced security guard but an in-house security officer and a member of Lepanto’s SRF, thus, holding a position of trust and confidence. Lepanto adds that Mamaril’s duties and functions made him privy to company secrets and to confidential matters that are shared with management. However, the records show that when the theft occurred, Mamaril was no longer a member of the SRF.

Also, even if Mamaril was occupying a position of trust as an ordinary security guard, to be a valid cause for termination of employment, the act or acts constituting   breach of trust must have been done intentionally, knowingly, and purposely; and they must be founded on clearly established facts. In Lopez v. Alturas Group of Companies and/or Uy, loss of trust and confidence must be based on willful breach of the trust reposed in the employee by his employer and must be based on substantial evidence and not on the employer’s whims or caprices or suspicions.

Here, Lepanto asserts that the dismissal of Mamaril due to loss of trust and confidence was justified since the Tubo Collar gate was lit and that guards Bangkilas and Velasco positively identified Mamaril as the one who opened the man door since they were familiar with Mamaril’ s face, being their co-security guard. However, Lepanto relied heavily on the affidavit and report made by Bangkilas and Velasco. The two stated that while they were positioned at the back of a store along the national road about 40 meters away from the Tubo Collar gate, they saw Mamaril open the man door gate and then someone went out carrying something that was loaded into a tricycle, which lasted for more or less a minute.

According to the SC, this can hardly be believed as an accurate report or one founded on clearly established facts given that the incident occurred at night and the witnesses were at a considerable distance away from the man door. Also, the breach of trust was not shown to have been done intentionally, knowingly, and purposely.

Here, Lepanto merely assumed that Sumibang, who was caught red-handed on the qualified theft of skinned copper wires, conspired with Mamaril to execute the wrongdoing. Aside from the report filed by Bangkilas and Velasco, Lepanto did not present an admission from Sumibang and his companion that Mamaril assisted them in any way to carry out their plan; neither did Lepanto produce any other evidence corroborating what Bangkilas and Velasco allegedly saw. Clearly, conspiracy cannot be readily presumed. It must be based on sufficient evidence to stand.

Hence, the SC found that Mamaril was dismissed without a just and valid cause and is thus entitled to be paid separation pay and full backwages, inclusive of allowances and other benefits.

In Damasco v. NLRC, it was held that an employer’s formal admission that an employee worked beyond eight hours should entitle the employee to overtime compensation. In this case, such admissions, that Mamaril, et al. rendered overtime work and work during their holiday and rest days on the period specified therein, can be gleaned from the affidavits executed by Lepanto’s managers, Atty. Weldy Manlong, and Capt. Edgar Langeg. Thus, they are clearly entitled to these benefits.

Any doubt arising from the evaluation of evidence as between the employer and the employee must be resolved in favor of the latter. As an employer, it is incumbent upon Lepanto to prove payment. In G & M (Phils.), Inc. v. Cruz, it was held that the burden of proving payment of monetary claims rests on the employer since the pertinent personnel files, payrolls, records, remittances and other similar documents -which will show that overtime, differentials, service incentive leave, and other claims of workers have been paid -are not in the possession of the worker but in the custody and absolute control of the employer. Thus, the burden of showing with legal certainty that the obligation has been discharged with payment falls on the debtor, in accordance with the rule that one who pleads payment has the burden of proving it.

In this case, Lepanto failed to discharge such burden of proof. Lepanto submitted daily time sheets showing that Mamaril, et al. rendered eight-hour work days, signed by Mamaril, et al. and countersigned by Col. Doromal as the Department Head. However, as found by the CA in its Decision, the daily time sheets presented by Lepanto are not substantial proof that Mamaril, et al. did not render overtime work. It can be plainly observed from these daily time sheets that the number of hours worked by them were uniform and were written by the same hand. For this reason, these daily time sheets should be taken with a grain of salt.

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