Salas v.

Aboitiz One Facts Salas was a material controller of Aboitiz, and was tasked with monitoring and maintaining the availability and supply of Quickbox needed by Aboitiz in its day-to-day operations. At one point, Salas had run out of Large Quickbox, hampering Aboitizbusiness operation. Aboitiz then wrote Salas a memorandum requiring him to explain in writing within seventy-two hours why he should not be disciplinarily dealt with for his (i) failure to monitor the stock level of Large Quickbox which led to inventory stock out; and (ii) failure to report to [his] immediate superior the Large Quickbox problem when the stock level was already critical, when the Large Quickbox level was near stock out, and the stock level had a stock out. Five days after, an administrative hearing was conducted to give Salas opportunity to explain his side. Twenty-two days after, Aboitiz sent him a decision notice, terminating him for loss of trust and confidence, effective mid-month. Salas then sent a letter to Mr. Hamoy requesting reconsideration of the decision, asking if he could avail of the early retirement plan, having worked for Aboitiz for ten years already. He also asked to be allowed to tender his resignation instead of being terminated. Lastly, he asked to be employed until the end of the month, so as to have enough time to look for another job. Mr. Hamoy denied the request for early retirement plan, stating that the company's table of discipline provided the penalty of dismissal for the offenses he had committed. The extension, however, was granted, and even extended for a month. Claiming termination without cause, Salas filed with the Labor Arbiter a complaint against Aboitiz and its president Sabin Aboitiz for illegal dismissal with prayer for reinstatement, and for payment of full backwages, moral and exemplary damages, as well as attorneys fees. Aboitiz responded that there was valid termination, asserting that Salas was dismissed for just cause and with due process, Salas having willfully breached his duty when he ran out of Large Quickbox, justifying the termination of his employment. The Labor Arbiter sustained Salas' dismissal. On appeal, the NLRC reversed. Gross negligence being characterized by want of even slight care acting or omitting to act in a situation where there is a duty to act, willfully and intentionally with a conscious indifference to consequence, Salas could not be held guilty, having done his duty to make proper requisition in advance. Failure to follow-up is not an indicator of remission of duty. Salas can only be guilty of negligence, for failing to properly monitor and document the stocks in his custody. As he admitted during the administrative hearing, there were those which were even missing. Worst, he tampered the records to show that the stock on 31 May 2003 is for 02 June 2003. While there was no intention to defraud the company. The NLRC thus denied his prayer for backwages, and ordered the payment of separation pay instead of reinstatement Aboitiz filed a motion for reconsideration, while Salas sought partial reconsideration of the decision, both of which were denied by the NLRC. Salas and Aboitiz filed petitions for certiorari with the CA. Salas questioned the denial of his prayer for backwages and other monetary benefits, ad the order directing payment of separation pay instead of reinstatement. Aboitiz questioned NLRC's reversal. The CA sustained Salas' dismissal, holding that Salas was guilty of serious misconduct under Art. 282(a) for tampering the records to show that the

stock on May 31 2003 was for June 2 2003, gross and habitual neglect under Art. 282(b), and willful breach of the trust (Art. 282 (c)) reposed on Salas by Aboitiz, because as "warehouseman", and therefore a confidential employee, Salas concededly tampered company records to hide his gross and habitual neglect, and worse, sold the companys eight units of used airconditioners without authority. Issue: Whether simple negligence can be a basis for dismissal on ground of loss of trust and confidence. Held: Salas was terminated for neglect of duty and willful breach of trust. Gross negligence connotes want or absence of or failure to exercise slight care or diligence, or the entire absence of care. To warrant removal from service, the negligence should not merely be gross, but also habitual. Although it was Salas' duty to monitor and maintain the availability and supply of Quickbox, records show that Salas had made a requisition as early as May 21, 2003, even making several follow-ups. If there is anything that Salas can be faulted for, it is his failure to promptly inform his immediate supervisor of the non-delivery of the requisitioned items. Nevertheless, such failure did not amount to gross neglect of duty or to willful breach of trust, which would justify his dismissal from service. Moreover, there appears nothing to suggest that Salas position was a highly or even primarily confidential position, so that he can be removed for loss of trust and confidence by the employer. A "position of trust and confidence is one where a person is "entrusted with confidence on delicate matters," or with the custody, handling, or care and protection of the employers property. In the records of the case, there is no semblance of willful breach of trust on the part of Salas. It is true that there was erasure or alteration on the bin card. Aboitiz, however, failed to demonstrate that it was done to cover up Salas alleged negligence. Other than the bin card and Aboitizs barefaced assertion, no other evidence was offered to prove the alleged cover-up. The CA, therefore, erred in adopting Aboitizs unsubstantiated assertion to justify Salas dismissal. The loss of trust must be based not on ordinary breach but, in the language of Article 282(c) of the Labor Code, on willful breach. 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. In this case, Aboitiz utterly failed to establish the requirements prescribed by law and jurisprudence for a valid dismissal on the ground of breach of trust and confidence. Neither can Aboitiz validate Salas dismissal on the ground of seriousmisconduct for his alleged failure to account for unused accountable forms. The charge came only after Salas dismissal. The subject accountable forms were issued to Salas in 2001. Inexplicably, this alleged infraction was never included as ground in the notice of termination. It was only three (3) months after the filing of the complaint for illegal dismissal that Aboitiz asserted that Salas failed to account for these unused accountable forms. It is clear that such assertion of serious misconduct was a mere afterthought to justify the illegal dismissal. Aboitizs reliance on the past offenses of Salas for his eventual dismissal is likewise unavailing. The correct rule has always been that such previous offenses may be used as valid justification for dismissal from work only if the infractions are related to the subsequent offense upon which the basis of

termination is decreed. While it is true that Salas had been suspended on for failure to meet the security requirements of the company, and for his failure to assist in the loading at the fuel depot, such offenses are not related to Salas latest infraction, hence, cannot be used as added justification for the dismissal. Undoubtedly, no just cause exists to warrant Salas dismissal. Consequently, he is entitled to reinstatement to his former position without loss of seniority rights, and to payment of backwages. However, the award of backwages is modified because Salas was not entirely faultless.