Republic of the Philippines

SUPREME COURT
Manila
SECOND DIVISION
G.R. No. 73681 June 30, 1988
COLGATE PALMOLIVE PHILIPPINES, Inc., petitioners,
vs.
HON. BLAS F. OPLE, COLGATE PALMOLIVE SALES UNION, respondents.

PARAS, J.:

Before Us is a Petition for certiorari seeking to set aside and annul the Order of respondent Minister of Labor and
Employment (MOLE) directly certifying private respondent as the recognized and duly-authorized collective bargaining
agent for petitioner's sales force and ordering the reinstatement of three employees of petitioner.

Acting on the petition for certiorari with prayer for temporary restraining order, this Court issued a Temporary Restraining
Order enjoining respondents from enforcing and/or carrying out the assailed order.

The antecedent facts are as follows:

On March 1, 1985, the respondent Union filed a Notice of Strike with the Bureau of Labor Relations (BLR) on ground of
unfair labor practice consisting of alleged refusal to bargain, dismissal of union officers/members; and coercing employees
to retract their membership with the union and restraining non-union members from joining the union.

After efforts at amicable settlement proved unavailing, the Office of the MOLE, upon petition of petitioner assumed
jurisdiction over the dispute pursuant to Article 264 (g) of the Labor Code, Thereafter the case was captioned AJML-3-
142-85, BLR-3-86-85 "In Re: Assumption of Jurisdiction over the Labor Dispute at Colgate Palmolive Philippines, Inc." In
its position paper, petitioner pointed out that

(a) There is no legal basis for the charge that the company refused to bargain collectively with the union
considering that the alleged union is not the certified agent of the company salesmen;

(b) The union's status as a legitimate labor organization is still under question because on 6 March 1985,
a certain Monchito Rosales informed the BLR that an overwhelming majority of the salesmen are not in
favor of the Notice of Strike allegedly filed by the Union (Annex "C");

(c) Upon verification of the records of the Ministry of Labor and Employment, it appeared that a petition
for cancellation of the registration of the alleged union was filed by Monchito Rosales on behalf of certain
salesmen of the company who are obviously against the formation of the Colgate Palmolive Sales Labor
Union which is supposed to represent them;

(d) The preventive suspensions of salesmen Peregrino Sayson, Salvador Reynante and Cornelio Mejia,
and their eventual dismissal from the employ of the company were carried out pursuant to the inherent
right and prerogative of management to discipline erring employees; that based on the preliminary
investigation conducted by the company, there appeared substantial grounds to believe that Sayson,
Reynante and Mejia violated company rules and regulations necessitating their suspension pending
further investigation of their respective cases;

(e) It was also ascertained that the company sustained damages resulting from the infractions committed
by the three salesmen, and that the final results of the investigation fully convinced the company of the
existence of just causes for the dismissal of the three salesmen;

(f) The formation of the union and the membership therein of Sayson, Reynante and Mejia were not in
any manner connected with the company's decision to dismiss the three; that the fact that their dismissal
came at a time when the alleged union was being formed was purely coincidental;

(g) The union's charge therefore, that the membership in the union and refusal to retract precipitated their
dismissal was totally false and amounted to a malicious imputation of union busting;

(h) The company never coerced or attempted to coerce employees, much less interferred in the exercise
of their right to self-organization; the company never thwarted nor tried to defeat or frustrate the
employees' right to form their union in pursuit of their collective interest, as long as that right is exercised
within the limits prescribed by law; in fact, there are at present two unions representing the rank and file
employees of the company-the factory workers who are covered by a CBA which expired on 31 October
1985 (which was renewed on May 31, 1985) and are represented by Colgate Palmolive Employees Union
(PAFLU); whereas, the salaried employees are covered by a CBA which will expire on 31 May 1986
represented by Philippine Association of Free Labor Union (PAFLU)-CPPI Office Chapter. (pp. 4-6, Rollo)
The respondent Union, on the other hand, in its position paper, reiterated the issue in its Notice to Strike, alleging that it
was duly registered with the Bureau of Labor Relations under Registry No. 10312-LC with a total membership of 87
regular salesmen (nationwide) out of 117 regular salesmen presently employed by the company as of November 30, 1985
and that since the registration of the Union up to the present, more than 2/3 of the total salesmen employed are already
members of the Union, leaving no doubt that the true sentiment of the salesmen was to form and organize the Colgate-
Palmolive Salesmen Union. The Union further alleged that the company is unreasonably delaying the recognition of the
union because when it was informed of the organization of the union, and when presented with a set of proposals for a
collective bargaining agreement, the company took an adversarial stance by secretly distributing a "survey sheet on union
membership" to newly hired salesmen from the Visayas, Mindanao and Metro Manila areas, purposely avoiding regular
salesmen who are now members of the union; that in the accomplishment of the form, District Sales Managers, and Sales
Supervisors coerced salesmen from the Visayas and Mindanao by requiring them to fill up and/or accomplish said form by
checking answers which were adverse to the union; that with a handful of the survey sheets secured by management
through coercion, it now would like to claim that all salesmen are not in favor of the organization of the union, which acts
are clear manifestations of unfair labor practices.

On August 9,1985, respondent Minister rendered a decision which:

(a) found no merit in the Union's Complaint for unfair labor practice allegedly committed by petitioner as
regards the alleged refusal of petitioner to negotiate with the Union, and the secret distribution of survey
sheets allegedly intended to discourage unionism,

(b) found the three salesmen, Peregrino Sayson, Salvador Reynante & Cornelio Mejia "not without fault"
and that "the company 1 has grounds to dismiss above named salesmen"

and at the same time respondent Minister directly certified the respondent Union as the collective bargaining agent for the
sales force in petitioner company and ordered the reinstatement of the three salesmen to the company on the ground that
the employees were first offenders.

Petitioner filed a Motion for Reconsideration which was denied by respondent Minister in his assailed Order, dated
December 27, 1985. Petitioner now comes to Us with the following:

Assignment of Errors

I Respondent Minister committed a grave abuse of discretion when he directly certified the Union
solely on the basis of the latter's self-serving assertion that it enjoys the support of the majority of
the sales force in petitioner's company.

II Respondent Minister committed a grave abuse of discretion when, notwithstanding his very own
finding that there was just cause for the dismissal of the three (3) salesmen, he nevertheless
ordered their reinstatement. (pp. 7-8, Rollo)

Petitioner concedes that respondent Minister has the power to decide a labor dispute in a case assumed by him under
Art. 264 (g) of the Labor Code but this power was exceeded when he certified respondent Union as the exclusive
bargaining agent of the company's salesmen since this is not a representation proceeding as described under the Labor
Code. Moreover the Union did not pray for certification but merely for a finding of unfair labor practice imputed to
petitioner-company.

The petition merits our consideration. The procedure for a representation case is outlined in Arts. 257-260 of the Labor
Code, in relation to the provisions on cancellation of a Union registration under Arts. 239-240 thereof, the main purpose of
which is to aid in ascertaining majority representation. The requirements under the law, specifically Secs. 2, 5, and 6 of
Rule V, Book V, of the Rules Implementing the Labor Code are all calculated to ensure that the certified bargaining
representative is the true choice of the employees against all contenders. The Constitutional mandate that the State shall
"assure the rights of the workers to self-organization, collective bargaining, security of tenure and just and humane
conditions of work," should be achieved under a system of law such as the aforementioned provisions of the pertinent
statutes. When an overzealous official by-passes the law on the pretext of retaining a laudable objective, the intendment
or purpose of the law will lose its meaning as the law itself is disregarded. When respondent Minister directly certified the
Union, he in fact disregarded this procedure and its legal requirements. There was therefore failure to determine with legal
certainty whether the Union indeed enjoyed majority representation. Contrary to the respondent Minister's observation, the
holding of a certification election at the proper time is not necessarily a mere formality as there was a compelling legal
reason not to directly and unilaterally certify a union whose legitimacy is precisely the object of litigation in a pending
cancellation case filed by certain "concerned salesmen," who also claim majority status. Even in a case where a union
has filed a petition for certification elections, the mere fact that no opposition is made does not warrant a direct
certification. More so as in the case at bar, when the records of the suit show that the required proof was not presented in
an appropriate proceeding and that the basis of the direct certification was the Union's mere allegation in its position
paper that it has 87 out of 117 regular salesmen. In other words, respondent Minister merely relied on the self-serving
assertion of the respondent Union that it enjoyed the support of the majority of the salesmen, without subjecting such
assertion to the test of competing claims. As pointed out by petitioner in its petition, what the respondent Minister
achieved in rendering the assailed orders was to make a mockery of the procedure provided under the law for
representation cases because:

(a) He has created havoc by impliedly establishing a procedural short-cut to obtaining a direct
certification-by merely filing a notice of strike.
 (b) By creating such a short-cut, he has officially encouraged disrespect for the law.

(c) By directly certifying a Union without sufficient proof of majority representation, he has in effect
arrogated unto himself the right, vested naturally in the employees, to choose their collective bargaining
representative.

(d) He has in effect imposed upon the petitioner the obligation to negotiate with a union whose majority
representation is under serious question. This is highly irregular because while the Union enjoys the
blessing of the Minister, it does not enjoy the blessing of the employees. Petitioner is therefore under
threat of being held liable for refusing to negotiate with a union whose right to bargaining status has not
been legally established. (pp. 9-10, Rollo)

The order of the respondent Minister to reinstate the employees despite a clear finding of guilt on their part is not in
conformity with law. Reinstatement is simply incompatible with a finding of guilt. Where the totality of the evidence was
sufficient to warrant the dismissal of the employees the law warrants their dismissal without making any distinction
between a first offender and a habitual delinquent. Under the law, respondent Minister is duly mandated to equally protect
and respect not only the labor or workers' side but also the management and/or employers' side. The law, in protecting
the rights of the laborer, authorizes neither oppression nor self-destruction of the employer. To order the reinstatement of
the erring employees namely, Mejia, Sayson and Reynante would in effect encourage unequal protection of the laws as a
managerial employee of petitioner company involved in the same incident was already dismissed and was not ordered to
be reinstated. As stated by Us in the case of San Miguel Brewery vs. National Labor Union, 2 "an employer cannot legally
be compelled to continue with the employment of a person who admittedly was guilty of misfeasance or malfeasance
towards his employer, and whose continuance in the service of the latter is patently inimical to his interest."

In the subject order, respondent Minister cited a cases 3 implying that "the proximity of the dismissal of the employees to
the assumption order created a doubt as to whether their dismissal was really for just cause or due to their activities." 4

This is of no moment for the following reasons:

(a) Respondent Minister has still maintained in his assailed order that a just cause existed to justify the dismissal of the
employees.

(b) Respondent Minister has not made any finding substantiated by evidence that the employees were dismissed because
of their union activities.

WHEREFORE, judgment is hereby rendered REVERSING and SETTING ASIDE the Order of the respondent Minister,
dated December 27, 1985 for grave abuse of discretion. However, in view of the fact that the dismissed employees are
first offenders, petitioner is hereby ordered to give them separation pay. The temporary restraining order is hereby made
permanent. SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 85668 August 10, 1989
GELMART INDUSTRIES PHILS., INC., petitioner,
vs.
THE HON. NATIONAL LABOR RELATIONS COMMISSION AND FELIX FRANCIS, respondents.

GANCAYCO, J.:

At issue in this petition is whether or not the National Labor Relations Commission (hereinafter referred to as NLRC)
committed a grave abuse of discretion amounting to lack or excess of jurisdiction in ordering the reinstatement of private
respondent to his former position with payment of backwages equivalent to six (6) months. 1

As revealed by the records, the background facts are as follows:

Private respondent Felix Francis started working as an auto-mechanic for petitioner Gelmart Industries Phils., Inc.
(hereinafter referred to as GELMART) sometime in 1971. As such, his work consisted of the repair of engines and
underchassis, as well as trouble shooting and overhauling of company vehicles. He is likewise entrusted with some tools
and spare parts in furtherance of the work assigned to him.

On April 11, 1987, private respondent was caught by the security guards taking out of GELMART's premises one (1)
plastic container filled with about 16 ounces of "used' motor oil, without the necessary gate pass to cover the same as
required under GELMART's rules and regulations. By reason thereof, petitioner, on April 13, 1987, was placed under
preventive suspension pending investigation for violation of company rules and regulations. Under the said rules, theft
and/or pilferage of company property merits an outright termination from employment.
After due investigation, or on May 20, 1987, private respondent was found guilty of theft of company property. As a
consequence, his services were severed.

Thereafter, private respondent filed a complaint for illegal dismissal before the NLRC. In a decision dated February 26,
1988, Labor Arbiter Ceferina J. Diosana ruled that private respondent was illegally dismissed and, accordingly, ordered
the latter's reinstatement with full backwages from April 13, 1987 up to the time of actual reinstatement. 2

The ground relied upon by the labor arbiter in her decision is worth quoting hereunder, to wit:

The most important aspect that should be considered in interpreting this rule (referring to the company's
rules on theft and pilferages) is the deprivation of the company of property belonging to it without any
compensation. Hence, the property that must be stolen or pilfered must be property which has value.

x x x.

x x x.

In the respondent company, ... the used oil is thrown away by the mechanics. ... In other words, the taking
by complainant of the subject 16 ounces of used oil did not deprive the respondent company of anything.
As it appears, the said used oil for as part of the waste that should be thrown away and the respondent
company had no use for the same, hence, the respondent company was not deprived of any property ...
and, therefore, and (sic) it is the position of this Labor Arbiter that there was no stealing or pilferage to
speak of. 3 (Emphasis supplied.)

From this decision, GELMART interposed an appeal with the NLRC. In its decision dated October 21, 1988, the NLRC
affirmed with modification the ruling of Labor Arbiter Diosana, 4 the dispositive portion of which reads as follows:

WHEREFORE, in view of the foregoing, the decision is hereby MODIFIED. Respondent-appellant is

hereby directed to reinstate complainant-appellee to his former position without loss of seniority rights and
to pay him backwages equivalent to six (6) months.

SO ORDERED. 5

On December 12, 1988, GELMART filed before this Court a special civil action for certiorari with a prayer for the issuance
of a temporary restraining order.

On January 18, 1989, this Court, without necessarily giving due course to the petition, issued a temporary restraining
order enjoining respondents from enforcing the assailed decision. On the same date, this Court required respondents to
comment on the petition.

Aside from the substantive issues raised in their comment which will be discussed later on in this decision, public
respondent pointed to a procedural error allegedly committed by petitioner. 6 The Solicitor General contends that
petitioner failed to exhaust "[t]he administrative remedies afforded by law ... before resort can be had to the courts
... 7 More specifically, our attention is called to the fact that no motion for reconsideration of the NLRC decision was filed
by petitioner. The Solicitor General then concludes that "[s]ince petitioners failed to avail of the plain, speedy and
adequate remedy accorded to them in the ordinary course of law ..., the instant petition for certiorari ran is prematurely
filed, and hence, does not state a cause of action. 8

The legal provision pertinent to this issue is found in Article 223 of the Labor Code which provides, in part:

ART. 223. Appeal. ... .

x x x.

The decision of the Commission shall be immediately executory even pending appeal ... (Emphasis
supplied.)

From this provision, it can be gleaned that the filing of a motion for reconsideration may not prove to be an adequate
remedy. For one, assuming that a motion for reconsideration is filed, nowhere does it state that the filing thereof would
automatically suspend the execution of the decision. Second, although a motion for reconsideration has often been
considered a condition precedent for granting the writ of certiorari, this rule, however, finds exception in cases where
execution had been ordered and the need for relief is extremely urgent. 9

This Court is not unaware of Section 2, Rule XI of the Revised Rules of the National Labor Relations Commission which
provides in paragraphs (a) and (b) thereof:

See. 2. Finality of Decisions of the Commission

(a) The decisions, resolutions or orders of the Commission shall become executory after ten (10) calendar
days from receipt of the same.
 (b) Should there be a motion for reconsideration in accordance with Sec. 9, Rule X of these Rules, the
decision shall be executory after 10 days from receipt of the resolution on such motion.

x x x.

However, this Court has already ruled against the validity of the abovecited rule, particularly Section 2, Rule XI, paragraph
(a) in Juan vs. Musngi. 10 Interpreting the word "immediately" in Article 223 of the Labor Code to mean "without interval of
time" or "without delay," this Court declared that the NLRC rules which provide that decisions, resolutions or orders of the
Commission shall become executory after ten (10) calendar days from receipt thereof cannot prevail over Article 223 of
the Labor Code. Further amplifying on this ruling, this Court stated that administrative regulations under legislative
authority by a particular department must be in harmony with the provision of the law for the sole purpose of carrying into
effect its general provisions. 11 Otherwise stated, no period of time need elapse before the decision of the NLRC becomes
executory.

From the foregoing, it will be seen that a motion for reconsideration may not be a plain, speedy and adequate remedy.
Hence, a petition for certiorari with this Court with a prayer for the issuance of a temporary restraining order is but a
proper remedy to forestall the immediate execution of the assailed decision.

The Court will now look into the substance of this petition. In their petition, GELMART ascribes grave abuse of discretion
on the part of the NLRC for rendering a decision that is contrary to law and existing jurisprudence.

We find no merit in this petition.

Consistent with the policy of the State to bridge the gap between the underprivileged workingmen and the more affluent
employers, the NLRC rightfully tilted the balance in favor of the workingmen and this was done without being blind to
the concomitant right of the employer to the protection of his property. The NLRC went on to say as follows:

We do not fully concur with the findings of the Labor Arbiter. Complainant-appellee's suspension prior to
termination had sufficient basis. We disagree with the conclusion that complainant-appellee did not
violate respondent-appellant's rule requiring a gate pass for taking out company property as the used
motor oil was not really in a sense ' property' considering that it was plain waste and had no commercial
value. ... Used motor oil is not plain waste because it had its use to respondent-appellant's motor pool. ...
Besides, it is not for complainant-appellee to interpret the rule according to his own understanding.
Respondent appellant had the right to interpret the rule and ... to exact discipline ... in the light of its policy
to instill discipline on its 6,000 workforce.

We find however, complainant-appellee's dismissal unwarranted. ... The penalty of preventive suspension
was sufficient punishment for the violation under the circumstances. ... 12 (Emphasis supplied)

Thus, without being too harsh to the employer, on the one hand, and naively liberal to labor, on the other, the NLRC
correctly pointed out that private respondent cannot totally escape liability for what is patently a violation of company rules
and regulations.

To reiterate, be it of big or small commercial value, intended to be re-used or altogether disposed of or wasted, the "used"
motor oil still remains, in legal contemplation, the property of GELMART. As such, to take the same out of GELMART's
premises without the corresponding gate pass is a violation of the company rule on theft and/or pilferage of company
property. However, as this Court ruled in Meracap vs. International Ceramics Mfg. Co., Inc., "[w]here a penalty less
punitive would suffice, whatever missteps may be committed by labor ought not to be visited with a consequence so
severe. 13 On this score, it is very difficult for this Court to discern grave abuse of discretion on the part of the NLRC in
modifying the appealed decision. The suspension imposed upon private respondent is a sufficient penalty for the
misdemeanor committed.

As stated earlier, petitioner assails the NLRC decision on the ground that the same is contrary to existing jurisprudence,
particularly citing in support thereof Firestone Tire and Rubber Co. of the Phil. vs. Lariosa 14 Petitioner contends that by
virtue of this ruling they have the right to dismiss private respondent from employment on the ground of breach of trust or
loss of confidence resulting from theft of company property.

We believe otherwise.

There is nothing in Firestone which categorically gives management an unhampered right in terminating an employee's
services. The, decision in Firestone specifically focuses only on the legality of a dismissal by reason of acts of dishonesty
in the handling of company property for what was involved in that case is theft of sixteen (16) flannel swabs which were
supposed to be used to clean certain machineries in the company. 15 In fact, a careful review of the cases cited
in Firestone 16 will readily reveal that the underlying reason behind sustaining the personam. of dismissal or outright
termination is that, under the circumstances obtaining in those cases, there exists ample reason to distrust the employees
concerned.

Thus, in upholding the dismissal of a cashier found guilty of misappropriating corporate funds, this Court, in Metro
Drug," 17 made, a distinction between managerial personnel and-in other employees occupying positions of trust and-in
confidence from ordinary employees. On the other hand, in Dole Philippines, 18 this Court spoke of the "nature of
participation" which renders one absolutely unworthy of the trust and-in confidence demanded by the position in upholding
the dismissal of employee found guilty of illegally selling for their philosophy benefit two (2) drums of crude oil belonging to
the company.

Additionally, in Firestone, it clearly appears that to retain the employee would "[i]n the long run, endanger the company's
viability. 19

The, Court rules that these circumstances are not present in this instant case.

Contrary to the assertion of petitioner, the ruling in Firestone does not preclude the NLRC from looking into the particular
facts of the case to determine if there is ample reason to dismiss an employee charged and subsequently found guilty of
theft of company property. The, said decision cannot be deemed as a limitation on the right of the State in the exercise of
its paramount police power to regulate or temper the prerogative of management to dismiss an erring
employee. 20 Consequently, even when there exists some rules agreed upon between the employer and-in the employee,
it cannot preclude the State from inquiring on whether or not its rigid application would work too harshly on the employee.

Considering that private respondent herein has no previous derogatory record in his fifteen (15) years of service with
petitioner GELMART the value of the property pilfered (16 ounces of used motor oil) is very minimal, plus the fact that
petitioner failed to reasonably establish that non-dismissal of private respondent would work undue prejudice to the
viability of their operation or is patently inimical to the company's interest, it is more in consonance with the policy of the
State, as embodied in the Constitution, to resolve all doubts in favor of labor. This is our ruling in Philippine Air Lines, Inc.
vs. Philippine Air Lines Employees Association 21 involving as it does essentially the same facts and in circumstances. At
this point, this Court does not see any reason to deviate from the said ruling.

WHEREFORE, in view of the foregoing, the petition is DISMISSED for lack of merit. The, restraining order issued by this
Court on January 18, 1989 enjoining the enforcement of the questioned decision of the National Labor Relations
Commission is hereby lifted. No pronouncement as to costs. SO ORDERED.

Republic of the Philippines

SUPREME COURT
Manila
THIRD DIVISION

G.R. No. 121004 January 28, 1998

ROMEO LAGATIC, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION, CITYLAND DEVELOPMENT CORPORATION, STEPHEN ROXAS,
JESUS GO, GRACE LIUSON, and ANDREW LIUSON, respondents.

ROMERO, J.:

Petitioner seeks, in this petition for certiorari under Rule 65, the reversal of the resolution of the National Labor Relations
Commission dated May 12, 1995, affirming the February 17, 1994, decision of Labor Arbiter Ricardo C. Nora finding that
petitioner had been validly dismissed by private respondent Cityland Development Corporation (hereafter referred to as
Cityland) and that petitioner was not entitled to separation pay, premium pay and overtime pay.

The facts of the case are as follows:

Petitioner Romeo Lagatic was employed in May 1986 by Cityland, first as a probationary sales agent, and later on as a
marketing specialist. He was tasked with soliciting sales for the company, with the corresponding duties of accepting call-
ins, referrals, and making client calls and cold calls. Cold calls refer to the practice of prospecting for clients through the
telephone directory. Cityland, believing that the same is an effective and cost-efficient method of finding clients, requires
all its marketing specialists to make cold calls. The number of cold calls depends on the sales generated by each: more
sales mean less cold calls. Likewise, in order to assess cold calls made by the sales staff, as well as to determine the
results thereof, Cityland requires the submission of daily progress reports on the same.

On October 22, 1991, Cityland issued a written reprimand to petitioner for his failure to submit cold call reports for
September 10, October 1 and 10, 1991. This notwithstanding, petitioner again failed to submit cold call reports for
September 2, 5, 8, 10, 11, 12, 15, 17, 18, 19, 20, 22, and 28, as well as for October 6, 8, 9, 10, 12, 13 and 14, 1992.
Petitioner was required to explain his inaction, with a warning that further non-compliance would result in his termination
from the company. In a reply dated October 18, 1992, petitioner claimed that the same was an honest omission brought
about by his concentration on other aspects of his job. Cityland found said excuse inadequate and, on November 9, 1992,
suspended him for three days, with a similar warning.

Notwithstanding the aforesaid suspension and warning, petitioner again failed to submit cold call reports for February 5, 6,
8, 10 and 12, 1993. He was verbally reminded to submit the same and was even given up to February 17, 1993 to do so.
Instead of complying with said directive, petitioner, on February 16, 1993, wrote a note, "TO HELL WITH COLD CALLS!
WHO CARES?" and exhibited the same to his co-employees. To worsen matters, he left the same lying on his desk
where everyone could see it.
On February 23, 1993, petitioner received a memorandum requiring him to explain why Cityland should not make good its
previous warning for his failure to submit cold call reports, as well as for issuing the written statement aforementioned. On
February 24, 1993, he sent a letter-reply alleging that his failure to submit cold call reports should trot be deemed as gross
insubordination. He denied any knowledge of the damaging statement, "TO HELL WITH COLD CALLS!"

Finding petitioner guilty of gross insubordination, Cityland served a notice of dismissal upon him on February 26, 1993.
Aggrieved by such dismissal, petitioner filed a complaint against Cityland for illegal dismissal, illegal deduction,
underpayment, overtime and rest day pay, damages and attorney's fees. The labor arbiter dismissed the petition for lack
of merit. On appeal, the same was affirmed by the NLRC; hence the present recourse.

Petitioner raises the following issues:

1. WHETHER OR NOT RESPONDENT NLRC GRAVELY ABUSED ITS DISCRETION

1N NOT FINDING THAT PETITIONER WAS ILLEGALLY DISMISSED;

2. WHETHER OR NOT RESPONDENT NLRC GRAVELY ABUSED ITS DISCRETION IN

RULING THAT PETITIONER IS NOT ENTITLED TO SALARY DIFFERENTIALS,
BACKWAGES, SEPARATION PAY, OVERTIME PAY, REST DAY PAY, UNPAID
COMMISSIONS, MORAL AND EXEMPLARY DAMAGES AND ATTORNEY'S FEES.

The petition lacks merit.

To constitute a valid dismissal from employment, two requisites must be met, namely: (1) the employee must be afforded
due process, and (2) the dismissal must be for a valid cause. 1 In the case at bar, petitioner contends that his termination
was illegal on both substantive and procedural aspects. It is his submission that the failure to submit a few cold calls does
not qualify as willful disobedience, as, in his experience, cold calls are one of the least effective means of soliciting sales.
He thus asserts that a couple of cold call reports need not be accorded such tremendous significance as to warrant his
dismissal for failure to submit them on time.

These arguments are specious. Petitioner loses sight of the fact that "(e)xcept as provided for, or limited by, special laws,
an employer is free to regulate, according to his discretion and judgment, all aspects of employment." 2Employers may,
thus, make reasonable rules and regulations for the government of their employees, and when employees, with
knowledge of an established rule, enter the service, the rule becomes a part of the contract of employment. 3 It is also
generally recognized that company policies and regulations, unless shown to be grossly oppressive or contrary to law, are
generally valid and binding on the parties and must be complied with. 4 "Corollarily, an employee may be validly dismissed
for violation of a reasonable company rule or regulation adopted for the conduct of the company business. An employer
cannot rationally be expected to retain the employment of a person whose . . . lack of regard for his employer's rules . . .
has so plainly and completely been bared." 5 Petitioner's continued infraction of company policy requiring cold call reports,
as evidenced by the 28 instances of non-submission of aforesaid reports, justifies his dismissal. He cannot be allowed to
arrogate unto himself the privilege of setting company policy on the effectivity of solicitation methods. To do so would be
to sanction oppression and the self-destruction of the employer.

Moreover, petitioner made it worse for himself when he wrote the statement, "TO HELL WITH COLD CALLS! WHO
CARES?" When required to explain, he merely denied ally knowledge of the same. Cityland, on the other hand, submitted
the affidavits of his co-employees attesting to his authorship of the same. Petitioner's only defense is denial. The rule,
however, is that denial, if unsubstantiated by clear and convincing evidence, is negative and self-serving evidence which
has no weight in law. 6 More telling, petitioner, while making much capital out of his lack of opportunity to confront the
affiants, never, in all of his pleadings, categorically denied writing the same. He only denied knowledge of the allegation
that he issued such a statement.

Based on the foregoing, we find petitioner guilty of willful disobedience. Willful disobedience requires the concurrence of
at least two requisites: the employee's assailed conduct must have been willful or intentional, the willfulness being
characterized by a wrongful and perverse attitude; and 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. 7

Petitioner's failure to comply with Cityland's policy of requiring cold call reports is clearly willful, given the 28 instances of
his failure to do so, despite a previous reprimand and suspension. More than that, his written statement shows his open
defiance and disobedience to lawful rules and regulations of the company. Likewise, said company policy of requiring cold
calls and the concomitant reports thereon is clearly reasonable and lawful, sufficiently known to petitioner, and in
connection with the duties which he had been engaged to discharge. There is, thus, just cause for his dismissal.

On the procedural aspect, petitioner claims that he was denied due process. Well settled is the dictum that the twin
requirements of notice and hearing constitute the elements of due process in the dismissal of employees. Thus, the
employer must furnish the employee with two written notices before the termination of employment can be effected. The
first apprises the employee of the particular acts or omissions for which his dismissal is sought; the second informs him of
the employer's decision to dismiss him. 8

In the case at bar, petitioner was notified of the charges against him in a memorandum dated February 19, 1993, which
he received on February 23, 1993. He submitted a letter-reply thereto on February 24, 1993, wherein he asked that his
failure to submit cold call reports be not interpreted as gross insubordination. 9 He was given notice of his termination on
February 26, 1993. This chronology of events clearly show that petitioner was served with the required written notices.
Nonetheless, petitioner contends that he has not been given the benefit of an effective hearing. He alleges that he was
not adequately informed of the results of the investigation conducted by the company, nor was he able to confront the
affiants who attested to his writing the statement, "TO HELL WITH COLD CALLS!" While we have held that in dismissing
employees, the employee must be afforded ample opportunity to be heard, "ample opportunity" connoting every kind of
assistance that management must afford the employee to enable him to prepare adequately for his defense, 10 it is also
true that the requirement of a hearing is complied with as long as there was an opportunity to be heard, and not
necessarily that an actual hearing be conducted. 11 Petitioner had an opportunity to be heard as he submitted a letter-reply
to the charge. He, however, adduced no other evidence on his behalf. In fact, he admitted his failure to submit cold call
reports, praying that the same be not considered as gross insubordination. As held by this Court in Bernardo vs.
NLRC, 12 there is no necessity for a formal hearing where an employee admits responsibility for an alleged misconduct. As
to the written statement, "TO HELL WITH COLD CALLS!," petitioner merely denied knowledge of the same. He failed to
submit controverting evidence thereon although the memorandum of February 19, 1993, clearly charged that he had
shown said statement to several sales personnel. Denials are weak forms of defenses, particularly when they are not
substantiated by clear and convincing evidence. Given the foregoing, we hold that petitioner's constitutional right to due
process has not been violated.

As regards the second issue, petitioner contends that he is entitled to amounts illegally deducted from his commissions, to
unpaid overtime, rest day and holiday premiums, to moral and exemplary damages, as well as attorney's fees and costs.

Petitioner anchors his claim for illegal deductions of commissions on Cityland's formula for determining commissions, viz:

COMMISSIONS = Credits Earned (CE) less CUMULATIVE NEGATIVE

(CN) less AMOUNTS RECEIVED (AR)

= (CE - CN) - AR where CE = Monthly Sales Volume x

Commission Rate (CR)
AR = Monthly Compensation/.75
CR = 4.5%

Under said formula, an increase in salary would entail an increase in AR, thus diminishing the amount of commissions
that petitioner would receive. Petitioner construes the same as violative of the non-diminution of benefits clause embodied
in the wage orders applicable to petitioner. Inasmuch as Cityland has paid petitioner commissions based on a higher AR
each time there has been a wage increase, the difference between the original AR and the subsequent ARs have been
viewed by petitioner as illegal deductions, to wit:

Wage Date of Amount of Corresponding Duration Up Total

Order Effectivity Increase Increase in To 2/26/93
Quota (AR)

RA 6640 1/1/88 P265.75 P 353.33 X 62 mos. P 2 1,906.46

RA 6727 7/1/89 780.75 1,040.00 X 44 mos. 45,760.00

NCR 01 11/1/90 785.75 1,046.67 X 28 mos. 29,306.76

NCR 01-A Grand Total P 96,973.22 13

Petitioner even goes as far as to claim that with the use of Cityland's formula, he is indebted to the company in the
amount of P1,410.00, illustrated as follows:

Petitioner' s Basic Salary = P 4,230.00

= 4,230.00/.75

A.R. = 5,640.00

Petitioner's Basic Salary AR = P 1,410.00

While it is true that an increase in salary would cause an increase in AR, with the same being deducted from credits
earned, thus lessening his commissions, the fact remains that petitioner still receives his basic salary without deductions.
Petitioner's argument that he is indebted to respondent by P1,410.00 is fallacious as his basic salary remains the same
and he continues to receive the same, regardless of his collections. The failure to attain a CE equivalent to the AR of
P5,640.00 only means that the difference would be credited to his CN for the next month. Clearly, the purpose of the
same is to encourage sales personnel to accelerate their sales in order for them to earn commissions.

Additionally, there is no law which requires employers to pay commissions, and when they do so, as stated in the letter-
opinion of the Department of Labor and Employment dated February 19, 1993, "there is no law which prescribes a method
for computing commissions. The determination of the amount of commissions is the result of collective bargaining
negotiations, individual employment contracts or established employer practice." 14 Since the formula for the computation
of commissions was presented to and accepted by petitioner, such prescribed formula is in order. As to the allegation that
said formula diminishes the benefits being received by petitioner whenever there is a wage increase, it must be noted that
his commissions are not meant to be in a fixed amount. In fact, there was no assurance that he would receive any
commission at all. Non-diminution of benefits, as applied here, merely means that the company may not remove
the privilege of sales personnel to earn a commission, not that they are entitled to a fixed amount thereof.

With respect to petitioner's claims for overtime pay, rest day pay and holiday premiums, Cityland maintains that Saturday
and Sunday call-ins were voluntary activities on the part of sales personnel who wanted to realize more sales and thereby
earn more commissions. It is their contention that sales personnel were clamoring for the "privilege" to attend Saturday
and Sunday call-ins, as well as to entertain walk-in clients at project sites during weekends, that Cityland had to stagger
the schedule of sales employees to give everyone a chance to do so. But simultaneously, Cityland claims that the same
were optional because call-ins and walk-ins were not scheduled every weekend. If there really were a clamor on the part
of sales staff to "voluntarily" work on weekends, so much so that Cityland needed to schedule them, how come no call-ins
or walk-ins were scheduled on some weekends?

In addition to the above, the labor arbiter and the NLRC sanctioned respondent's practice of offsetting rest day or holiday
work with equivalent time on regular workdays on the ground that the same is authorized by Department Order 21, Series
of 1990. As correctly pointed out by petitioner, said D.O. was misapplied in this case. The D.O. involves the shortening of
the workweek from six days to five days but with prolonged hours on those five days. Under this scheme, non-payment of
overtime premiums was allowed in exchange for longer weekends for employees. In the instant case, petitioner's
workweek was never compressed. Instead, he claims payment for work over and above his normal 5 1/2 days of work in a
week. Applying by analogy the principle that overtime cannot be offset by undertime, to allow off-setting would prejudice
the worker. He would be deprived of the additional pay for the rest day work he has rendered and which is utilized to
offset his equivalent time off on regular workdays. To allow Cityland to do so would be to circumvent the law on payment
of premiums for rest day and holiday work.

Notwithstanding the foregoing discussion, petitioner failed to show his entitlement to overtime and rest day pay due, to the
lack of sufficient evidence as to the number of days and hours when he rendered overtime and rest day work. Entitlement
to overtime pay must first be established by proof that said overtime work was actually performed, before an employee
may avail of said benefit. 15 To support his allegations, petitioner submitted in evidence minutes of meetings wherein he
was assigned to work on weekends and holidays at Cityland's housing projects. Suffice it to say that said minutes do not
prove that petitioner actually worked on said dates. It is a basic rule in evidence that each party must prove his affirmative
allegations. 16 This petitioner failed to do. He explains his failure to submit more concrete evidence as being due to the
decision rendered by the labor arbiter without resolving his motion for the production and inspection of documents in the
control of Cityland. Petitioner conveniently forgets that on January 27, 1994, he agreed to submit the case for decision
based on the records available to the labor arbiter. This amounted to an abandonment of above-said motion, which was
then pending resolution.

Lastly, with the finding that petitioner's dismissal was for a just and valid cause, his claims for moral and exemplary
damages, as well as attorney's fees, must fail.

WHEREFORE, premises considered, the assailed Resolution is AFFIRMED and this petition is hereby DISMISSED for
lack of merit. Costs against petitioner.

SO ORDERED.