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SECOND DIVISION

[ G.R. No. 258269, April 15, 2024 ]

JOSE ANTONIO PAULO I. REYES, PETITIONER, VS. SAMSUNG ELECTRONIC PHILS. CORP., KEVIN LEE, MINSU CHU, AND SILVER FUNGO, RESPONDENTS.

D E C I S I O N

LOPEZ, J., J.:

This Court resolves the Petition for Review on Certiorari[1] filed by Jose Antonio Paolo I. Reyes (Reyes) assailing the Decision[2] and the Resolution[3] of the Court of Appeals (CA). These dispositions upheld the Decision[4] and the Resolution[5] of the National Labor Relations Commission (NLRC), which affirmed the Labor Arbiter (LA)'s Decision[6] declaring Reyes to have been validly dismissed from his probationary employment.

Reyes was the country manager of Ruckus Wireless, a company specializing in wireless networking solutions. On December 29, 2016, Reyes was asked by Samsung Electronic Philippines Corporation (Samsung) to consider joining its Wireless Local Area Network (WLAN) Division. He was personally invited by Samsung President and/or Managing Director Kevin Lee (Lee).[7] Through a letter,[8] Samsung formally offered Reyes the position of WLAN Head/National Sales Manager albeit subject to a probationary period.

Reyes eventually decided to join Samsung and was to receive a monthly compensation that matched his previous salary at Ruckus Wireless, amounting to PHP 470,000.00.[9] Reyes then signed the Probationary Contract of Employment[10] and Contract of Employment: Side Agreement Benefits.[11]

After a few months, Samsung informed Reyes in a letter[12] through its IT and Mobile Team (IMT) Acting Head, Rhinn Piczon (Piczon), that he failed to meet the standards for regularization and that his probationary employment would be terminated effective September 27, 2017. Attached to the letter was Reyes' Performance Evaluation Form,[13] which revealed that his overall assessment yielded a score of 4.08鈥攚ith 5 being the lowest鈥攐r a "needs improvement" rating.[14]

Reyes subsequently filed a Complaint before the LA against Samsung for illegal dismissal, nonpayment of 13th month pay, regularization, moral and exemplary damages, and attorney's fees. He also impleaded Lee, Senior Business Director Minsu Chu (Chu), and Director for Human Relations Silver Fungo (Fungo), as officers of Samsung (Samsung et al.).[15]

Reyes mainly asserted that he was not informed of the performance standards to qualify as a regular employee at the time of his engagement. After signing the employment contract, he allegedly sought clarification from Chu regarding the employment standards, but the latter purportedly gave him vague responses such as "do what you think is right" and that Reyes must perform the job based on his own assessment. He was also supposedly assured by Fungo that the probationary period was just a formality.[16]

On the other hand, Samsung et al. asserted that Reyes was apprised of the standards and qualifications at the time of his employment. They also claimed to have regularly reinforced these standards in their weekly leadership team, supply chain management, and consensus meetings.[17]

Samsung et al. further contended that since Reyes held the position of National Sales Manager, it was implied that he should adhere to certain expectations for someone in that role. Stated differently, Reyes had certain responsibilities and expectations that were implied and should have been understood by someone in that role. These expectations included avoiding conflicts with team members, familiarizing oneself with the company's internal procedures and work to be done, and maintaining a professional demeanor in the workplace. Reyes failed to observe all of these.[18]

Samsung et al. claimed that they expected Reyes, as National Sales Manager, to be more aware of his role as a leader among the sales personnel and to act accordingly, but Reyes did not meet these expectations. Consequently, Samsung et al. held performance feedback discussions with Reyes on June 26 and 27, 2017 to give him the opportunity to address his deficiencies, but these attempts were also unsuccessful.[19]

Essentially, Samsung et al. argued that Reyes failed to meet the reasonable standards set for him to qualify as a regular employee, and that even if he became one, he was still validly dismissed due to Samsung's loss of trust and confidence in him.[20]

In its Decision,[21] the LA dismissed Reyes' Complaint and ruled that he failed to achieve regular status. The dispositive portion of the Decision reads:
WHEREFORE, premises considered, judgment is hereby rendered, the instant complaint against the respondents SAMSUNG ELECTRONIC PHILS., CORP., KEVIN LEE, MINSU CHU and SILVER FUNGO is hereby DISMISSED for lack of merit. However, SAMSUNG ELECTRONIC PHILS., CORP. is hereby ORDERED to pay complainant JOSE ANTONIO PAULO IGNACIO REYES his proportionate 13th month pay in the amount of P235,000.00.

All other claims are dismissed for lack of merit.[22] (Emphasis in the original)
The LA pointed out that Reyes had acknowledged in the employment contract that during his probationary employment period, the required performance standards were made known and thoroughly explained to him at the commencement of the period of his employment.[23]

Further, the statement made by Chu鈥�"do what you think is right"鈥� was construed by the LA to pertain to Reyes' discretion in performing his duties and obligations and did not imply the absence of reasonable standards.[24] Citing the case of Abbott Laboratories, Phils. v. Alcaraz,[25] the LA underscored that the adequate performance of one's duties serves as an inherent and implied standard for a probationary employee to be regularized. Hence, such standards need not be enumerated or specified in every case.[26]

Accordingly, the LA reasoned that Reyes was fully aware that his probationary status of employment was contingent upon his compliance with the basic requirements mandated in his position as the national sales manager. The LA concluded that his inability to meet these standards constituted a sufficient cause for his nonregularization. Hence, Reyes was properly dismissed during his probationary employment.[27]

The LA also denied Reyes' monetary claims. However, the LA awarded Reyes his proportionate 13th month pay as it was specifically provided in his employment contract.[28]

Aggrieved, Reyes appealed to the NLRC.

The NLRC, in its Decision,[29] affirmed the ruling of the LA, viz.:
WHEREFORE, premises considered, the Appeal is hereby denied and the assailed Decision of Labor Arbiter Villanueva dated 14 June 2018 is AFFIRMED in its entirety. Respondent Samsung is hereby ordered to pay Reyes the sum of Two Hundred Thirty-Five Thousand Pesos (Php 235,000.00) corresponding to his proportionate 13th month pay.

SO ORDERED.[30] (Emphasis in the original)
The NLRC noted that Reyes failed to specifically deny the allegations in the affidavits of Chu[31] and Piczon[32] that: (1) the targets and expectations were relayed to Reyes at the start of his employment and were repeated during the weekly leadership team, supply chain management, and consensus meetings during his probationary period; (2) there were both qualitative and quantitative expectations; (3) he was made aware that his qualification for regular employment would be based on his achievement of these targets and expectations; and (4) performance feedback discussions were held on June 26 and 27, 2017 where his conduct, performance, knowledge of business processes, and internal procedures were relayed.[33]

The NLRC held that "the detailed narrative contained [in the affidavits] were based on the personal knowledge of affiants Chu and Piczon of events surrounding Reyes' probationary employment at Samsung."[34] As a result, these were not considered as hearsay and were admitted by the NLRC.[35]

The NLRC further ruled that it was highly unlikely that someone with Reyes's level of experience, who previously held the position of Country Manager at Ruckus Wireless, would accept a new position without fully understanding the offer and expectations placed on him. It declared that such is not in line with ordinary human behavior and experience.[36]

Reyes sought reconsideration, but the NLRC denied it in a Resolution.[37]

Dissatisfied, Reyes filed a Petition for Certiorari before the CA. However, the CA denied his Petition in its Decision,[38] as follows:
WHEREFORE, the Petition is DENIED. The Decision dated 22 October 2018 and Resolution dated 17 December 2018 issued by the NLRC in NLRC LAC No. 08-003027-18 are hereby AFFIRMED.

IT IS SO ORDERED.[39] (Emphasis in the original)
The CA affirmed the finding that Reyes failed to qualify as a regular employee. It reiterated the NLRC's observations that he failed to specifically deny the allegations in the affidavits of Chua and Piczon.[40] It also upheld the remarks of the NLRC that Reyes's conduct of working for five months without even knowing the goals and expectations upon him was contrary to human experience.[41]

In a similar vein, the CA denied Reyes's Motion for Reconsideration in its Resolution.[42]

Hence, this Petition.

Accordingly, the core issue for this Court's resolution is whether the CA erred in declaring that the NLRC did not commit grave abuse of discretion when it ruled that petitioner Jose Antonio Paulo I. Reyes was not a regular employee of Samsung.

This Court's Ruling

The Petition is bereft of merit.

Prefatorily, in labor cases, a petition for review on certiorari under Rule 45 is limited to reviewing whether the CA correctly determined the presence or absence of grave abuse of discretion as well as other jurisdictional errors committed by the NLRC.[43] "As such, when a decision of the CA under a Rule 65 petition is brought to this Court by way of a petition for review under Rule 45, only questions of law may be entertained. [After all,] [t]his Court is not a trier of facts."[44] Our ruling in Montoya v. Transmed[45] is instructive in explaining this limitation, thus:
In a Rule 45 review, we consider the correctness of the assailed CA decision, in contrast with the review for jurisdictional error that we undertake under Rule 65. Furthermore, Rule 45 limits us to the review of questions of law raised against the assailed CA decision. In ruling for legal correctness, we have to view the CA decision in the same context that the petition for certiorari it ruled upon was presented to it; we have to examine the CA decision from the prism of whether it correctly determined the presence or absence of grave abuse of discretion in the NLRC decision before it, not on the basis of whether the NLRC decision on the merits of the case was correct. In other words, we have to be keenly aware that the CA undertook a Rule 65 review, not a review on appeal, of the NLRC decision challenged before it. This is the approach that should be basic in a Rule 45 review of a CA ruling in a labor case. In question form, the question to ask is: Did the CA correctly determine whether the NLRC committed grave abuse of discretion in ruling on the case?[46] (Citations omitted, emphasis supplied)
While there exist exceptions to this rule,[47] none of these are applicable to the case at hand.

Here, the crux of the controversy lies in the question of whether petitioner was made aware of the reasonable standards for regularization at the time of his engagement鈥攚hich is clearly a question of fact.

This Court notes that the findings of the LA, the NLRC, and the CA are one in that petitioner was adequately informed of the regularization standards. Settled is the principle that "findings of fact of administrative agencies and quasi-judicial bodies, which have acquired expertise because their jurisdiction is confined to specific matters, are generally accorded not only respect, but finality when affirmed by the CA."[48] These findings merit full respect and should not be altered, modified, or reversed without justifiable grounds.[49] Here, We find no cogent reason to depart from the court a quo's findings.

Regardless, even after perusing the records, the CA correctly ruled that the NLRC did not commit any grave abuse of discretion.

"A probationary employee is one who is placed on trial by an employer, during which the latter determines [whether] the former is qualified for permanent employment."[50] Accordingly, an employer is given an opportunity to observe the fitness and competency of a probationary employee. During the probationary period, an employer has the prerogative to decide who will be hired or not.[51] However, it must be emphasized that a probationary employee still enjoys security of tenure, though not to the same extent accorded to a permanent employee. Consequently, the termination of a probationary employee's services may be warranted only for the following grounds: (1) just causes; (2) authorized causes; and (3) failure to meet the employer's reasonable standards for becoming a regular employee.[52]

Pertinently, Article 296 of the Labor Code provides for the basis of probationary employment, which reads:
ARTICLE 296. [281] Probationary Employment. 鈥� Probationary employment shall not exceed six (6) months from the date the employee started working, unless it is covered by an apprenticeship agreement stipulating a longer period. The services of an employee who has been engaged on a probationary basis may be terminated for a just cause or when he fails to qualify as a regular employee in accordance with reasonable standards made known by the employer to the employee at the time of his engagement. An employee who is allowed to work after a probationary period shall be considered a regular employee.
In addition, Section 6(d) of Book VI, Rule I of the Omnibus Rules Implementing the Labor Code specifically provides that if the employer fails to inform the probationary employee of the reasonable standards for regularization at the time of the engagement, then such employee shall be deemed a regular employee, thus:
(d) In all cases of probationary employment, the employer shall make known to the employee the standards under which [they] will qualify as a regular employee at the time of [their] engagement. Where no standards are made known to the employee at that time, [they] shall be deemed a regular employee. (Emphasis supplied)
Based on these considerations, probationary employment is only considered valid if the following requisites are fulfilled: first, the employer must communicate the reasonable standard for regularization; and second, the employer shall inform the employee of the reasonable standard at the time of his or her engagement. If either one or both requisites are not met, then he or she would be considered a regular employee from engagement.[53]

Corollarily, "an employer is deemed to have made known the standards that would qualify a probationary employee to be a regular employee when it has exerted reasonable efforts to apprise the employee of what [they are] expected to do or accomplish during the trial period of probation."[54] Implicit in this assumption is that the employee is adequately informed of both their probationary status and its duration.[55] Verily, strict adherence is not necessary. The real measure of compliance with the legal requirements is fundamentally a matter of reasonableness. As long as the probationary employee is accorded ample time and opportunity to fully comprehend the expectations in the initial stages of probation, the legal mandate is deemed satisfied.[56]

Nevertheless, the rule on notice is not without exceptions, e.g., when the job is self-descriptive in nature, such as maids, cooks, drivers, or messengers.[57] Likewise, We have held that the rule on notifying a probationary employee of the standards of regularization cannot be used to excuse an employee's conduct that goes against basic knowledge and common sense.[58]

Here, it bears repeating that the courts a quo unanimously found that petitioner had been duly informed of the performance standards for regularization, after considering the totality of the circumstances such as the offer letter,[59] the Probationary Contract, of Employment,[60] the petitioner's admission in the Position Paper, [61] and the credibility of petitioner's allegations, among others.[62] In this regard, We refer to the pertinent ruling of the NLRC:
In his own Position Paper, Reyes admits that he had discussions with Samsung's Edwin Tiotuyco and even with Samsung President himself, Kevin Lee, about a job opportunity in the company. We find it difficult to believe that during these discussions, matters pertaining to the duties, responsibilities, growth targets and expectations and how the position of National Sales Manager/WLAN Head figures in Samsung's over-all business plans could not have been taken up and discussed. It bears mentioning that by his own assertion, Reyes was not "seeking any other employment at the time as he was already the Country Manager of Ruckus Wireless." It is highly inconceivable that a person of his position and work experience, who was happy and content in his former job would, without asking questions and having full information and knowledge of Samsung's offer and expectations, blindly accept a position he is totally clueless about. It is certainly not in accord with ordinary human behavior for a person of Reyes' stature and caliber who was then working as Country Manager at Ruckus Wireless, which position is clearly not merely a low-level managerial position but a top level one, would at the first instance change jobs without first fully knowing what he is getting into. On this point alone, We find it hard to lend credence to Reyes' allegations.[63] (Emphasis supplied)
Relevantly, We have held that the adequate discharge of one's duties and responsibilities serves as an inherent and implied standard for regularization.[64] Stated differently, "if the probationary employee had been fully apprised by [their] employer of these duties and responsibilities, then basic knowledge and common sense dictate that [they] must adequately perform the same, else [they fail] to pass the probationary trial and may therefore be subject to termination."[65] To expound further:
The determination of "adequate performance" is not, in all cases, measurable by quantitative specification, such as that of a sales quota in Alcaraz's example. It is also hinged on the qualitative assessment of the employee's work; by its nature, this largely rests on the reasonable exercise of the employer's management prerogative. While in some instances the standards used in measuring the quality of work may be conveyed鈥攕uch as workers who construct tangible products which follow particular metrics, not all standards of quality measurement may be reducible to hard figures or are readily articulable in specific pre-engagement descriptions. A good example would be the case of probationary employees whose tasks involve the application of discretion and intellect, such as鈥攖o name a few鈥攍awyers, artists, and journalists. In these kinds of occupation, the best that the employer can do at the time of engagement is to inform the probationary employee of his duties and responsibilities and to orient him on how to properly proceed with the same. The employer cannot bear out in exacting detail at the beginning of the engagement what he deems as "quality work" especially since the probationary employee has yet to submit the required output. In the ultimate analysis, the communication of performance standards should be perceived within the context of the nature of the probationary employee's duties and responsibilities.

The same logic applies to a probationary managerial employee who is tasked to supervise a particular department, as Alcaraz in this case. It is hardly possible for the employer, at the time of the employee's engagement, to map into technical indicators, or convey in precise detail the quality standards by which the latter should effectively manage the department. Factors which gauge the ability of the managerial employee to either deal with his subordinates (e.g., how to spur their performance, or command respect and obedience from them), or to organize office policies, are hardly conveyable at the outset of the engagement since the employee has yet to be immersed into the work itself. Given that a managerial role essentially connotes an exercise of discretion, the quality of effective management can only be determined through subsequent assessment. While at the time of engagement, reason dictates that the employer can only inform the probationary managerial employee of his duties and responsibilities as such and provide the allowable parameters for the same. Verily, as stated in the Decision, the adequate performance of such duties and responsibilities is, by and of itself, an implied standard of regularization.[66]
In this case, as correctly observed by the NLRC, among the qualitative standards that respondents have set for a WLAN Head/National Sales Manager are the ability to lead and inspire his team, exercise sound judgment and discretion, make quality decisions, and exhibit professional behavior in all dealings with internal and external customers.[67] Remarkably, these qualities are inherent to the duties and obligations associated with this position.

At this juncture, We once more adopt the pronouncement of the NLRC:
It cannot be gainsaid that high-level managerial employees such as Reyes are considered by corporate entities as extensions of themselves, if not their alter-egos, as they are the human faces that represent these juridical entities in all their dealings. As such, these top-level managerial employees are held to a higher standard of intellect, professionalism, civility and conduct. Thus, even if not written in clear, bold language, certain qualitative attributes or personality traits are deemed embedded or inherent in managerial positions, especially those at the higher echelons of the corporate ladder such as the one that Reyes occupied.

Records show that it is in these qualitative standards that Reyes was found to be wanting, to wit: (1) he had shallow knowledge of business operations; (2) came into conflict with other LT members; (3) not in sync with the company's business strategy; (4) had difficulty fitting into the Samsung IMT culture; (5) violated the company's confidentiality policy when he disclosed his monthly salary which created unnecessary discord among IMT members; (6) exhibited unprofessional demeanor while meeting external mobile partners and IMT members; (7) used unprofessional language which made female colleagues uncomfortable; and (8) lacked understanding of Samsung's internal rules and processes which caused disappointment among external mobile partners of Samsung when he made unauthorized or, unrealistic commitments which may put the company's IMT business at risk.

All the foregoing findings are contained in the Competencies portion of Reyes' performance evaluation where he got a final rating of 4.20. As clearly stated in the Termination Letter dated 23 August 2017, a 4.2 rating which is equivalent to a "Needs Improvement" rating does not merit a conversion of Reyes' employment from probationary to regular. Our examination of the records disclosed that Reyes' low rating had ample basis and was not based on flimsy or frivolous grounds.[68]
All told, it is patent that petitioner was unable to fulfill the performance standards prescribed by Samsung for regularization, which validates the termination of his employment. Therefore, there is no illegal dismissal to speak of. Nonetheless, this Court affirms the award of the pro-rated 13th month pay as this was explicitly provided for under his employment contract,[69] which shall earn legal interest at 6% in line with prevailing jurisprudence.[70]

Regarding the applicability of the two notice rule, it is settled that such rule would not apply in instances where a probationary employee is dismissed for failing to meet the employer's reasonable standards.[71] In the case of Abbott,[72] this Court declared that:
A different procedure is applied when terminating a probationary employee; the usual two-notice rule does not govern. Section 2, Rule I, Book VI of the Implementing Rules of the Labor Code states that "if the termination is brought about by the x x x failure of an employee to meet the standards of the employer in case of probationary employment, it shall be sufficient that a written notice is served the employee, within a reasonable time from the effective date of termination."[73] (Citation omitted)
To recap, in this case, the basis for petitioner's dismissal was his inability to meet Samsung's employment standards, and not due to just or authorized causes. As such, the two notice rule is not applicable.

In conclusion, the Constitution's commitment to social justice and the protection of the working class does not guarantee that all labor disputes will always be resolved in favor of labor. The rights of management also carry weight and are entitled to respect and enforcement in the spirit of fair play.[74]

ACCORDINGLY, the Petition is DENIED. The August 26, 2020 Decision and the July 28, 2021 Resolution of the Court of Appeals in CA G.R. SP No. 159808 are AFFIRMED WITH MODIFICATION. The Complaint for Illegal Dismissal against respondents Samsung Electronic Phils., Corp., Kevin Lee, Minsu Chu, and Silver Fungo is DISMISSED. Nonetheless, respondent Samsung Electronic Phils., Corp., is ORDERED TO PAY petitioner Jose Antonio Paulo Ignacio Reyes his proportionate 13th month pay of PHP 235,000.00, plus legal interest at the rate of 6% per annum to be computed from the date of finality of this Decision until full payment.

SO ORDERED.

Lazaro-Javier and M. Lopez, JJ., concur.
Leonen, SAJ. (Chairperson), I join the dissent of J. Kho, Jr.
Kho, Jr., J., see dissenting opinion.


[1] Rollo, pp. 31-82.

[2] Id. at 12-25. The August 26, 2020 Decision in CA G.R. SP No. 159808 was penned by Associate Justice Alfredo D. Ampuan and concurred in by Associate Justices Mariflor P. Punzalan Castillo and Pedro B. Corales of the Fifth Division, Court of Appeals, Manila.

[3] Id. at 27-28. The July 28, 2021 in CA G.R. SP No. 159808 was penned by Associate Justice Alfredo D. Ampuan and concurred in by Associate Justices Mariflor P. Punzalan Castillo and Pedro B. Corales of the Former Fifth Division, Court of Appeals, Manila.

[4] Id. at 150-174. The October 22, 2018 Decision in NLRC NCR Case No. 09-13915-17 [NLRC LAC No. 08-003027-18] was penned by Presiding Commissioner Joseph Gerard E. Mabilog and concurred in by Commissioners Isabel G. Panganiban-Ortiguerra and Agnes Alexis A. Lucero-De Grano of the Sixth Division, National Labor Relations Commission, Quezon City.

[5] Id. at 176-177. The December 17, 2018 Resolution in NLRC NCR Case No. 09-13915-17 [NLRC LAC No. 08-003027-18] was penned by Presiding Commissioner Joseph Gerard E. Mabilog and concurred in by Commissioners Isabel G. Panganiban-Ortiguerra and Agnes Alexis A. Lucero-De Grano of the Sixth Division, National Labor Relations Commission, Quezon City.

[6] Id. at 282-292. The June 14, 2018 Decision in NLRC NCR Case No. 09-13915-17 was penned by Labor Arbiter Augusto L. Villanueva, National Labor Relations Commission, Quezon City.

[7] Id. at 229.

[8] Id. at 199. Dated February 15, 2017.

[9] Id. at 283.

[10] Id. at 232-234.

[11] Id. at 230-231.

[12] Id. at 241. Dated August 23, 2017.

[13] Id. at 242-244.

[14] Id. at 152.

[15] Id.

[16] Id. at 153.

[17] Id. at 154.

[18] Id. at 157.

[19] Id.

[20] Id. at 157-158.

[21] Id. at 282-292.

[22] Id. at 292.

[23] Id. at 289.

[24] Id.

[25] 714 Phil. 510 (2013) [Per J. Perlas-Bernabe, En Banc].

[26] Rollo, p. 291.

[27] Id.

[28] Id. at 291-292.

[29] Id. at 150-174.

[30] Id. at 174.

[31] Id. at 236-238.

[32] Id at 239-240.

[33] Id. at 161.

[34] Id. at 162.

[35] Id.

[36] Id. at 163.

[37] Id at 176-177.

[38] Id. at 12-25.

[39] Id. at 25.

[40] Id. at 22.

[41] Id. at 23.

[42] Id. at 27-28.

[43] Abella v. Abosta Shipmanagement Corp., G.R. No. 249358, April 28, 2021 [Per J. Caguioa, First Division].

[44] ABS-CBN Broadcasting Corp. v. Tajanlangit, G.R. No. 219508, September 14, 2021 [Per J. J. Lopez, First Division]. (Emphasis supplied)

[45] 613 Phil. 696 (2009) [Per J. Brion, Second Division].

[46] Id. at 707.

[47] Ditiangkin v. Lazada E-Services Philippines, Inc., G.R. No. 246892, September 21, 2022 [Per J. Leonen, Second Division].
Thus, this Court generally will not reevaluate the sufficiency of evidence before the labor tribunals. However, this rule admits certain exceptions:

(1) when the factual findings of the Court of Appeals and the trial court are contradictory;
(2) when the conclusion is a finding grounded entirely on speculation, surmises, or conjectures;
(3) when the inference made by the Court of Appeals from its findings of fact is manifestly mistaken, absurd, or impossible;
(4) when there is a grave abuse of discretion in the appreciation of facts;
(5) when the Appellate Court, in making its findings, went beyond the issues of the case and such findings are contrary to the admissions of both appellant and appellee;
(6) when the judgment of the Court of Appeals is premised on a misapprehension of facts;
(7) when the Court of Appeals failed to notice certain relevant facts which, if properly considered, would justify a different conclusion;
(8) when the findings of fact are themselves conflicting;
(9) when the findings of fact are conclusions without citation of the specific evidence on which they are based; and
(10) when the findings of fact of the Court of Appeals are premised on the absence of evidence but such findings are contradicted by the evidence on record. (Citations omitted)
[48] Sarona v. National Labor Relations Commission, 679 Phil. 394, 414 (2012) [Per J. Reyes, Second Division].

[49] Reyes v. National Labor Relations Commission, 556 Phil. 317, 331 (2007) [Per J. Ynares-Santiago, Third Division].

[50] Moral v. Momentum Properties Management Corp., 848 Phil. 621, 634 (2019) [Per J. Carpio, Second Division].

[51] Oyster Plaza Hotel et al. v. Melivo et al., 796 Phil. 800, 813 (2016) [Per J. Mendoza, Second Division].

[52] Univac Development, Inc. v. Soriano, 711 Phil. 516, 526 (2013) [Per J. Peralta, Third Division].

[53] Philippine National Oil Company-Energy Development Corp. v. Buenviaje, 788 Phil. 508, 529 (2016) [Per J. Jardeleza, Third Division].

[54] Abbott Laboratories, Phils, v. Alcaraz, 714 Phil. 510, 533 (2013) [Per J. Perlas-Bernabe, En Banc].

[55] Id.

[56] Enchanted Kingdom, Inc. v. Verzo, 775 Phil. 388, 405 (2015) [Per J. Mendoza, Second Division].

[57] Robinsons Galleria/Robinsons Supermarket Corp. and/or Manuel v. Ranchez, 655 Phil 133, 142 (2011) [Per J. Nachura, Second Division].

[58] Aberdeen Court Inc. v. Agustin, Jr., 495 Phil. 706, 716-717 (2005) [Per J. Azcuna, First Division].

[59] Rollo, p. 199.

Dear Mr. Reyes,

We are pleased to offer you the position of WLAN Head/National Sales Manager, under IT & Mobile Team (IMT). Your annual compensation package will be as follows:

. . . .
Start Date: March 27, 2017
Status: Probationary
Rank: Senior Manager[.] (Emphasis supplied)
[60] Id. at 232-234.

1. The COMPANY hereby engages the services of the EMPLOYEE as WLAN Lead/National Sales Manager under IT & Mobile Team on a probationary status, commencing on 27 March 2017.
. . . .
3. The EMPLOYEE must meet or exceed the performance standards of the Company during the probationary employment period, such performance standards to be made-known and thoroughly explained to the employee at the commencement of the period, and shall be evaluated on his/her 5th month to determine his qualification to become a regular employee of the COMPANY. (Emphasis supplied)

[61] Id. at 181.

Complainant was enticed with the prospect of a long-term career and the benefits of retiring with a multinational corporation. Thus, in view of these pretenses, Complainant decided to join Respondent Samsung even if it simply matched the compensation that he was already deriving from Ruckus and even if it stated that he will begin his employment on a probationary status. (Emphasis supplied)

[62] Id. at 23.

[63] Id. at 162-163.

[64] Abbott Laboratories, Phils. v. Alcaraz, 733 Phil. 637, 653 (2014) [Per J. Perlas-Bernabe, En Banc].

[65] Id.

[66] Id. at 654-655.

[67] Rollo, p. 168.

[68] Id. at 168-169.

[69] Id. at 233.

[70] See Lara's Gifts & Decors, Inc. v. Midtown Industrial Sales, Inc., G.R. No. 225433, September 20, 2022 [Per J. Leonen, En Banc].

[71] Jaso v. Metrobank & Trust Co., G.R. No. 235794, May 12, 2021 [Per J. Inting, Third Division].

[72] 714 Phil. 510 (2013) [Per J. Perlas-Bernabe, En Banc].

[73] Id. at 537-538.

[74] Enchanted Kingdom, Inc. v. Verzo, 775 Phil. 388, 409 (2015) [Per J. Mendoza, Second Division].




DISSENTING OPINION

KHO, JR., J.:

I respectfully dissent.

I

In probationary employment, the law specifically requires the employer to communicate to the probationary employee the reasonable standards that the latter must meet to attain regularization.[1] These standards must be communicated to the probationary employee at the commencement of the probationary employment period.[2] The employer's failure to communicate these standards to the probationary employee at the commencement of the period renders the employment regular.[3]

Moreover, I respectfully submit that the constitutional guarantee of security of tenure is faithfully adhered to when a probationary employee, as part of the guarantee of due process, is given an opportunity to be heard on his alleged failure to qualify for regularization.

It is with these principles in mind that I respectfully depart from the majority conclusion that petitioner Jose Antonio Paulo I. Reyes (Reyes) was validly dismissed by respondent Samsung Electronic Philippines Corp. (SEPCO). To my mind, the Court of Appeals (CA) was not correct in finding no grave abuse of discretion on the part of the National Labor Relations Commission (NLRC) when it ruled that Reyes's dismissal is valid. The Court should instead grant Reyes's Petition, hold that his employment is regular and was illegally terminated, and accordingly, award him reinstatement with full backwages, as prayed for.

II

A brief restatement of the facts is in order.

On March 27, 2017, after being offered the position of Wireless Local Area Network (WLAN) Head/National Sales Manager, Reyes commenced employment with SEPCO. Both parties agreed that he would be subject to a six-month probationary period.[4] His Probationary Contract of Employment[5] states that on the fifth month, he would be evaluated as to his fitness for regularization.[6]

On August 23, 2017, SEPCO sent Reyes a letter[7] terminating his employment. SEPCO claimed that, based on the Performance Evaluation Form for Probationary Employees,[8] Reyes scored a 4.08 or a "Needs Improvement" rating,[9] with the lowest possible grade being a 5.0.

What transpired between March 27, 2017 and August 23, 2017 that led to his dismissal is disputed by the parties. Reyes claimed that SEPCO never informed him of the standards for regularization and that he had never seen the Performance Evaluation Form for Probationary Employees before he received it on the day of his dismissal. Reyes further claimed that when he asked SEPCO management what specific standards he should meet for regularization, he was told to perform his job based on his own assessment, considering his more than 20 years of experience in the field.[10]

On the other hand, SEPCO claims that Minsu Chu (Chu), its Senior Business Director, informed Reyes of the regularization standards when the latter started employment. SEPCO also claimed that these standards were relayed to Reyes from time to time. On the third month of the probationary period, Chu gave Reyes feedback on his performance and advised him to improve his communication skills and familiarize himself with SEPCO's processes. On June 26, 2017, Chu had another discussion with Reyes, where he instructed the latter to learn and understand the basic concepts involved in SEPCO sales and to be professional and earn his colleagues' respect. Reyes's failure to improve his performance led to his termination from SEPCO.[11]

Reyes then filed a Complaint for illegal dismissal against SEPCO, seeking actual reinstatement, backwages, monetized leave credits, moral and exemplary damages, and attorney's fees.[12]

The Labor Arbiter and the NLRC ruled that Reyes's dismissal is legal, which the CA affirmed.[13] On whether the standards for regularization were communicated to Reyes at the time of his engagement, the NLRC held that since Reyes did not specifically deny the statements of Chu that Reyes was informed of the standards at the time of engagement, then he is presumed to have admitted Chu's assertion.[14] At any rate, the NLRC faulted Reyes for not inquiring from his employer what the standards for regularization were and found it highly unusual for someone occupying a higher management role not to inquire about his targets or quotas for regularization.[15] Finally, it held that the reasons cited by SEPCO for dismissing Reyes, such as his lack of ability to lead and inspire, or to use sound judgment and discretion, and his shallow knowledge of SEPCO's business operations, are deemed embedded or inherent in managerial positions.[16]

On appeal by certiorari before the Court, the ponencia affirms the legality of Reyes's dismissal. Preliminarily, it finds the issue of whether Reyes was made aware of the standards for regularization at the time of his engagement to be factual, which is generally not reviewable in appeals by certiorari. Considering that the labor tribunals and the CA were uniform in their findings of fact, the ponencia, thus, sees no reason to overturn them.[17]

The ponencia rules that the CA did not err in finding no grave abuse of discretion on the part of the NLRC. It holds that Reyes had been informed of the regularization standards he must meet, as proven by the "totality of the circumstances"[18] shown in the offer letter, the probationary contract of employment, Reyes's admission that he knew his employment would initially be probationary, as well as the credibility of his assertions. Likewise, the ponencia maintains that the "adequate discharge of one's duties and responsibilities serves as an inherent and implied standard for regularization,"[19] citing the Court's decision in Abbott Laboratories v. Alcaraz.[20] The ponencia further quotes from Abbott Laboratories that "if the probationary employee had been fully apprised by [their] employer of [their] duties and responsibilities, then basic knowledge and common sense dictate that [they] must adequately perform the same, else [they] fail to pass the probationary trial and may therefore be subject to termination."[21] Moreover, the ponencia echoes the NLRC's pronouncement that the qualitative standards that Reyes did not meet, "even if not written in clear, bold language,"[22] are deemed embedded in the position.

Finally, considering that Reyes's termination was grounded on his failure to qualify for regularization, the ponencia rejects his claim that he should have received two notices before his dismissal.[23] Citing Abbott Laboratories, the ponencia holds that where the ground to terminate is the failure to meet the standards for regularization, the two-notice rule shall not apply [24]

III

Contrary to the majority, I submit that 鈥�

First, in determining whether the CA was correct in finding no grave abuse of discretion on the part of the NLRC, the Court may entertain questions of fact to determine whether the NLRC committed grave abuse of discretion in its appreciation of factual issues;

Second, the NLRC gravely abused its discretion in ruling that Reyes was informed of the standards he must meet for regularization since the evidence clearly does not support this conclusion; and

Third, a single notice of termination of a probationary employee in cases of failure to qualify for regularization runs afoul of the security of tenure guaranteed by the Constitution to all employees, regardless of whether they are regular or probationary.

IV

I respectfully submit that whether SEPCO communicated the standards for regularization to Reyes at the time of his engagement is a question of fact that is reviewable by the Court despite the uniform factual findings of the Labor Arbiter, NLRC, and the CA.

In Montoya v. Transmed,[25] which the ponencia also cites in ruling that questions of fact are not reviewable in this case, the Court explained the distinct mode of review it undertakes in petitions for review on certiorari of labor cases, to wit:
In a Rule 45 review, we consider the correctness of the assailed CA decision, in contrast with the review for jurisdictional error that we undertake under Rule 65. Furthermore, Rule 45 limits us to the review of questions of law raised against the assailed CA decision. In ruling for legal correctness, we have to view the CA decision in the same context that the petition for certiorari it ruled upon was presented to it; we have to examine the CA decision from the prism of whether it correctly determined the presence or absence of grave abuse of discretion in the NLRC decision before it, not on the basis of whether the NLRC decision on the merits of the case was correct. In other words, we have to be keenly aware that the CA undertook a Rule 65 review, not a review on appeal, of the NLRC decision challenged before it. This is the approach that should be basic in a Rule 45 review of a CA ruling in a labor case. In question form, the question to ask is: Did the CA correctly determine whether the NLRC committed grave abuse of discretion in ruling on the case?[26] (Emphasis in the original)
In Montoya, the Court noted therein that the core issue鈥攚hether the employee's tuberculosis is work-related鈥攊s a question of fact that the Court "cannot touch under Rule 45, except in the course of determining whether the CA correctly ruled in determining whether or not the NLRC committed grave abuse of discretion in considering and appreciating this factual issue."[27] Ultimately, the Court held that the CA correctly ruled that the NLRC committed no grave abuse of discretion; hence there was no need to resolve the central question of fact. Nevertheless, Montoya instructively held that in examining the legal correctness of a CA decision in a labor case, the Court may entertain questions of fact to determine whether the NLRC gravely abused its discretion in its appreciation of factual issues.[28]

Relevantly, the NLRC gravely abuses its discretion when its findings and conclusions are not supported by substantial evidence, which refer to that amount of relevant evidence that a reasonable mind might accept as adequate to justify a conclusion.[29] Thus, to determine the legal correctness of a CA decision in a Rule 65 petition assailing a decision of the NLRC, the Court may review the NLRC's factual findings to see if they are supported by substantial evidence.

Applied to this case, despite the uniform factual findings of the labor tribunals and the CA that Reyes was informed of the standards for regularization, or that certain standards are "deemed embedded or inherent in" the position taken by Reyes, the Court may undertake its own review of facts to determine the legal correctness of the CA's Decision.

V

The evidentiary framework in illegal dismissal cases proceeds in this manner: first, the burden is on the employee to prove by substantial evidence that they were dismissed from employment; second, the burden is on the employer to prove that the dismissal was procedurally and substantively valid.[30] In termination of probationary employment based on failure to qualify for regularization, the employer must prove the following: (1) there are reasonable standards set by the employer for regularization; (2) these reasonable standards were communicated by the employer to the employee; (3) the employer communicated these reasonable standards to the employee at the time of the latter's engagement; (4) the probationary employee failed to meet the regularization standards set by the employer; and (5) the employer notified the probationary employee of their failure to qualify for regularization.

That Reyes was dismissed from his employment is not disputed by the parties. Thus, the burden is on SEPCO to prove the procedural and substantive legality of Reyes's dismissal.

According to the NLRC, SEPCO sufficiently discharged this burden. It considered the following facts and pieces of evidence in making this ruling: (1) the statement of Chu, which Reyes allegedly did not specifically deny nor refute, that the "targets and expectations were relayed to [Reyes] at the start of his employment"[31] and at various times during the probationary period; (2) that SEPCO set both qualitative and quantitative targets and expectations; (3) Reyes was aware that his regularization will be assessed based on these targets and expectations; and (4) Chu and Information Technology and Mobile Team Department Acting Head Rhinn Paul Piczon met with Reyes on June 26 and 27, 2017 to give him feedback about his performance thus far.[32]

The NLRC also observed that prior to his employment, Reyes met with SEPCO's President about the job opportunity. The NLRC found it hard to believe that Reyes did not ask about his duties, responsibilities, as well as the targets and expectations that come with the position. It was highly inconceivable, according to the NLRC, that someone who was satisfied with his former job, as Reyes allegedly was, would take on a new position without "asking questions and having full information and knowledge of [SEPCO's] offer and expectations."[33]

Reyes also signed the Probationary Contract of Employment, Section 3 of which states that he must "meet or exceed the performance standards of [SEPCO] during the probationary employment period, such performance standards to be known and thoroughly explained to the employee at the commencement of the period and shall be evaluated on his/her 5th month to determine his/her qualification to become a regular employee of [SEPCO]."[34] This means, to the NLRC, that there were certain performance standards that Reyes must meet. If, as Reyes claims, no standards were communicated to him, the NLRC faulted him for not asking SEPCO what these standards were.[35]

The NLRC also held that the performance standards need not be in written form. As long as the standards are communicated to the probationary employee, whether in verbal or written form, the requirement is already met.[36]

Finally, the NLRC differentiated SEPCO's quantitative standards, which are in the form of sales targets, from the latter's qualitative standards, which are Reyes's ability to lead and inspire his team, his use of sound judgment and make quality decisions, and to act in a professional manner. The latter, the NLRC held, are deemed embedded or inherent in the managerial position that Reyes took on. Satisfactory performance of the employee, the NRLC ruled, is and should be one of the basic standards of regularization.[37]

VI

To my mind, the NLRC's failure to properly appreciate the evidence presented by both parties led it to the gravely erroneous conclusion that SEPCO ably proved that its dismissal of Reyes was valid. This is grave abuse of discretion amounting to lack or excess of jurisdiction on the part of the NLRC that the CA should have corrected.

In the foregoing discussion, the NLRC identified two types of performance standards in this case: quantitative standards, i.e., sales targets and expectations, and qualitative standards, i.e., ability to lead and inspire, act in a professional manner, and use sound judgment in making decisions. The quantitative standards were allegedly communicated to Reyes at the start of his engagement. At any rate, the NLRC held that the fault was with Reyes for failing to ask what the standards were when they were not communicated to him. Meanwhile, the qualitative standards, being "embedded or inherent in" the position, are expected to be met in a satisfactory or adequate manner and need not be spelled out in "clear, bold language."

Notably, both quantitative and qualitative standards are spelled out in SEPCO's Performance Evaluation Form for Probationary Employees.[38] This evaluation form was shown to Reyes only on the date of his dismissal.[39] This evaluation form is divided into two sections, Job Performance and Competencies. The quantitative standards are in the Job Performance section, while the qualitative standards are in the Competencies section. This evaluation form also shows Reyes's numerical grade on both quantitative and qualitative standards, showing that he scored 67.12% out of 100, leading to a final rating of 4, from a range of 1 to 5, 5 being the lowest.

Indisputably, SEPCO's quantitative and qualitative standards for regularization are set out in this performance evaluation form. A standard in this case refers to "[a] criterion for measuring acceptability, quality, or accuracy."[40] SEPCO's evaluation form fulfills this definition as it not only sets out the expected targets and behavior that probationary employees must meet and perform, but it also provides a means of measuring the adequacy or acceptability of a probationary employee's performance through its rating system.

The reasonableness of these standards is not at issue between the parties, and it appears that a close perusal of the performance evaluation form yields no criterion that is unreasonable or impossible to meet. Thus, SEPCO's standards meet the reasonableness requirement.

However, contrary to the ponencia, I respectfully submit that SEPCO failed to communicate these standards to Reyes at the time of his engagement as required by law. I disagree that Chu's Affidavit[41] proves that SEPCO informed Reyes of the standards set out in its performance evaluation form when he started his employment. I also disagree that Reyes admitted the allegations in Chu's Affidavit. Finally, I disagree that based on the "totality of circumstances" of this case, SEPCO informed Reyes of the reasonable standards for regularization at the time of his engagement.

Chu stated in his Affidavit that "[t]he targets and expectations were relayed to [Reyes] at the start of his employment and from time to time (i.e. at Weekly Leadership Team, Supply Chain Management (SCM) and consensus meeting) during his probationary period."[42] Chu also referred to the performance evaluation form鈥攂ut short of saying that SEPCO provided a copy of the performance evaluation form to or informed Reyes that he would be assessed on the basis of the said evaluation form, Chu only stated that Reyes was "aware that his qualification for regular employment will be assessed based on his achievement of these targets and expectations."[43]

The law requires communication of the standards at the time of engagement, and not reiteration of the reasonable standards "from time-to-time," so my focus is on Chu's assertion that Reyes was informed of the standards "at the start of his employment." That statement, which the records show is the only evidence that SEPCO allegedly communicated its standards to Reyes, miserably falls short of substantial evidence. Contrary to the NLRC, I do not find this to be a "detailed"[44] narrative. Instead, Chu failed to give details as to how the standards were communicated to Reyes, and who communicated these standards to Reyes as Chu only stated in a general way, that the "targets and expectations were relayed to [Reyes]."[45]

Curiously, Chu also referred to the performance evaluation form, which contains the standards by which Reyes's performance was measured, but did not state whether Reyes was given a copy of the form. Instead, Chu only stated that Reyes "was aware" that his qualification will be assessed based on the standards. I highlight the significance of the performance evaluation form because it contains all the standards set by SEPCO for regularization. However, this was not communicated or shown to Reyes at the start of his engagement. In fact, as he repeated said throughout the case, he did not see the said form until the day of his dismissal.

Relatedly, I do not agree that Reyes admitted Chu's allegations, especially regarding the issue of communication of regularization standards. All throughout his verified submissions before the labor tribunals,[46] the CA,[47] and this Court,[48] Reyes maintained that he was never informed of the standards he must meet to qualify for regularization. He even stated in his Position Paper that after signing the contract, he asked Chu what standards he should meet to become regular. Chu answered, "do what you think is right."[49] His denial is specific, detailed, and consistent. In fact, it was Chu who failed to specifically dispute that he told Reyes to perform his duties by his own assessment or by doing what he thinks is right.

Pertinent to this issue, I find it disturbing that the NLRC, instead of taking SEPCO to task for its evidentiary burden, essentially blamed Reyes for failing to ask SEPCO for its standards. It is a grave subversion of the legal requirement placed squarely on the employer to communicate the standards to the probationary employee. I emphasize that the law places no duty on the employee to inquire about the standards from the employer. Even more significantly, Reyes maintained that, even though he was not duty-bound to do so, he asked Chu what standards he should meet to be regularized. Tellingly, this was not disputed by SEPCO.

Finally, the "totality of circumstances" cited by the NLRC and the ponencia does not show that the standards were communicated to Reyes at the time of his engagement. Nowhere can be found in the offer letter, employment contract, or any other document presented to him the standards for regularization. As stated earlier, SEPCO's only evidence of communication is Chu's bare assertion, which I find that Reyes disputed.

I reiterate here that the burden of proving that the standards were communicated to the probationary employee at the time of his engagement falls on the employer. Case law, however, recognizes certain exceptions to the rule on communication, such as in self-descriptive occupations, i.e. maids, cooks, drivers, and messengers.[50] The Court has also ruled that standards of basic knowledge and common sense need not be spelled out to the employee, and the rule on communication should not be used to exculpate employees who act in a manner contrary to either.[51] In these cases, the Court ruled that there was no need to explicitly communicate the reasonable standards that the employees failed to meet.[52]

These exceptions are not applicable here. Reyes's position is not self-descriptive in nature, as shown by the fact that his performance is governed not by a single task that his title reflects, but by several targets, expectations, and behaviors as provided in his performance evaluation form. Also, the standards where Reyes supposedly fell short, are also not matters of basic knowledge and common sense.

While the ponencia rules that the standards for regularization were communicated to Reyes, it also added that certain qualitative standards, such as the ability to lead and inspire one's team, exercise sound judgment, make quality decisions, and exhibit professional behavior, are "inherent to the duties and obligations associated with [Reyes's] position."[53] Thus, the adequate performance of these obligations is an implied standard for regularization. Citing Abbott Laboratories, the ponencia states that "if the probationary employee had been fully apprised by his employer of these duties and responsibilities, then basic knowledge and common sense dictate that he must adequately perform the same, else he fails the probationary trial and may therefore be subject to termination."[54] It appears for the ponencia, then, that under the "basic knowledge and common sense" exception, there was no need to communicate the qualitative standards to Reyes as they are inherent to his position and that he is expected to "adequately perform" the same.

I respectfully disagree.

As I stated earlier, in probationary employment, the law requires reasonable standards. Further, the law mandates the employer to inform a probationary employee how their performance would be measured and assessed for purposes of regularization. "Adequate performance" hardly fulfills that requirement. What constitutes an adequate performance to the employer, when left uncommunicated to the probationary employee, becomes arbitrary and subject only to the employer's will. It is a serious threat to the guarantee of security of tenure when a probationary employee is dismissed on the ground of inadequate performance when they were not even informed of what the measure of adequacy is. I hasten to add that in his performance evaluation form, Reyes was graded on five separate qualitative competencies,[55] none of which were communicated to him. While I agree that certain duties and responsibilities are part and parcel of managerial positions such that any holder of that position is expected to perform them, I do not agree that this inherent-ness exempts the employer from communicating to the probationary employee how their performance would be measured as regards these duties.

Thus, I find that SEPCO failed to communicate to Reyes both the quantitative and qualitative standards for regularization. This failure resulted in Reyes's employment becoming regular.

VII

Reyes claimed that as a regular employee, he is, as part of his right to due process, entitled to two notices regarding his dismissal. The ponencia disagreed, ruling that because he is a probationary employee who was dismissed on his failure to qualify, he is entitled to only one notice.

Given that, to my mind, Reyes is SEPCO's regular employee, I disagree with the ponencia. Reyes is entitled to two notices, first, regarding the grounds for his termination and second, after hearing, indicating that upon consideration of all the circumstances, grounds have been established to justify dismissal.[56]

VIII

Even if I were to agree with the ponencia that Reyes's employment remained probationary, I find that the one-notice rule, which by jurisprudence is applicable to termination of probationary employment on the ground of failure to qualify, runs afoul of the constitutional guarantee of security of tenure.

The one-notice rule is an administrative creation set out in the Implementing Rules and Regulations (IRR) of the Labor Code, as amended by Department of Labor and Employment (DOLE) Department Order No. 010-97,[57] which states:
ARTICLE III. Section 2, Rule I, Book VI of the Implementing Rules is hereby amended, to read as follows:

Section 2. Security of tenure, (a) In cases of regular employment, the employer shall not terminate the services of an employee except for just or authorized causes as provided by law, and subject to the requirements of due process.
 
(b)
The foregoing shall also apply in cases of probationary employment; provided, however, that in such cases, termination of employment due to failure of the employee to qualify in accordance with the standards of the employer made known to the former at the time of engagement may also be a ground for termination of employment.



. . . .


"If the termination is brought about by the completion of a contract or phase thereof or by failure of an employee to meet the standards of the employer in the case of probationary employment, it shall be sufficient that a written notice is served the employee within a reasonable time from the effective date of termination.鈥� (Emphasis supplied)
After a conscientious study of relevant constitutional provisions, legal principles, and statutes, I respectfully opine that the one-notice rule runs counter to the policies enshrined in the Constitution protecting labor and should now be abandoned by the Court. Particularly, the two-notice rule, which is applied in case of just causes for dismissal, should equally be applied to dismissal due to failure of a probationary employee to qualify for regularization.

As pointed out, the Labor Code itself does not provide for these rules on notice of termination, delegating the authority instead to the DOLE to promulgate rules and regulations implementing the statute.[58] Thus, both the one-notice and the two-notice rules are set out in the IRR of the Labor Code.[59]

Meanwhile, the State's policy of affording full protection to labor is enshrined in the Constitution and the Labor Code. The Constitution declares that the State "affirms labor as a primary social economic force" and it "shall protect the rights of workers and promote their welfare."[60] Its article on social justice and human rights[61] devotes a section specific to labor, viz.:
Labor

SECTION 3. The State shall afford full protection to labor, local and overseas, organized and unorganized, and promote full employment and equality of employment opportunities for all.

It shall guarantee the rights of all workers to self-organization, collective bargaining and negotiations, and peaceful concerted activities, including the right to strike in accordance with law. They shall be entitled to security of tenure, humane conditions of work, and a living wage. They shall also participate in policy and decision-making processes affecting their rights and benefits as may be provided by law.

The State shall promote the principle of shared responsibility between workers and employers and the preferential use of voluntary modes in settling disputes, including conciliation, and shall enforce their mutual compliance therewith to foster industrial peace.

The State shall regulate the relations between workers and employers, recognizing the right of labor to its just share in the fruits of production and the right of enterprises to reasonable returns on investments, and to expansion and growth. (Emphasis supplied)
The Labor Code also declares the State's basic policy as follows:
Art. 3. Declaration of Basic Policy. 鈥� The State shall afford protection to labor, promote full employment, ensure equal work opportunities regardless of sex, race or creed, and regulate the relations between workers and employers. The State shall assure the rights of workers to self-organization, collective bargaining, security of tenure, and just and humane conditions of work. (Emphasis supplied)
Relevantly, jurisprudence also recognizes the right of persons vis-脿-vis their chosen occupation, recognizing that "one's employment, profession, trade or calling is a property right within the protection of the constitutional guaranty of due process of law."[62]

The State likewise protects the right of workers to security of tenure. By "security of tenure" is meant the right of workers not to be dismissed "except for just cause provided by law and after due process."[63]

In Telus International Philippines, Inc. v. de Guzman,[64] the Court explained that security of tenure enables workers to "have a reasonable expectation that they are secured in their work and that management prerogative, although unilaterally wielded, will not harm them. Employees are guaranteed that they can only be terminated from service for a just and valid cause and when supported by substantial evidence after due process."[65] Clear from this definition are the following aspects of security of tenure: first, that the cause of a worker's dismissal must be just and valid; second, the cause for dismissal must be based on substantial evidence; and third, that due process must be observed.

Notwithstanding the Labor Code's provision on security of tenure, which defines the right "in cases of regular employment,"[66] jurisprudence has consistently and uniformly held that probationary employees similarly enjoy security of tenure.[67] In Lopez v. Javier,[68] the Court emphasized that the Constitution, in according the protection of security of tenure, "does not distinguish as to the kind of worker who is entitled to be protected in this right."[69]

To my mind, the employer's duty to observe due process when dismissing a probationary employee does not end when the employee is simply told by the employer that they failed to qualify for regularization and will be dismissed from their employment; rather, the employer must also inform the employee of their failure to qualify and in them being allowed the opportunity to be heard thereon prior to termination. In this manner, the ground of failure to qualify to the standards of regularization is akin to a just cause to dismiss an employee.

The similarity between these grounds is evident. In both these cases, the supposed "fault" or "failure" as it were lies with the employee, such as, in just causes: (a) serious misconduct or willful disobedience; (b) gross and habitual neglect; (c) fraud or willful breach of trust; (d) commission of a crime against the employer or an immediate member of their family; and (e) other analogous causes.[70] In probationary employment, the failure to meet the employer's reasonable standards is obviously attributed to the probationary employee.

In just causes, the employee is given the opportunity to be heard on the charges against them鈥攃harges that, if ultimately resolved against them results in the termination of their employment and in the deprivation of their property right. The same is true for probationary employees, who enjoy the same security of tenure as regular employees. When faced with a circumstance that could potentially deprive them of their property right, such as their alleged failure to qualify for regular employment based on standards unilaterally set by their employer, they then should be entitled to the same right to be heard 鈥攖he opportunity to explain the charges against them鈥攁s regular employees. The right of employees to their employment, even in cases of probationary employment, is a valuable right that needs to be fully protected. As the Court said in Lopez, the Constitution does not distinguish between the kind of employment when it extends its protective mantle to employees. The Court must not hold otherwise.

As it stands, the rules implementing the due process requirements for dismissal of probationary employees who fail to qualify for regularization (the one-notice rule) do not reflect the constitutional guaranty of security of tenure. This is clearly prejudicial to the rights of probationary employees. It opens probationary employees to an unjust situation where, at the end of the probationary period, their performance is graded poorly, and they are perforce dismissed and deprived of their employment without even an opportunity to explain their side and be heard by the employer鈥�the very heart of the due process. It is high time for the Court to declare the one-notice rule on probationary employment as unconstitutional. Requiring the same two-notice rule applicable to regular employment to probationary employment would be in keeping with constitutional and statutory policies affording protection to labor.

ACCORDINGLY, I VOTE to GRANT the Petition.


[1] Moral v. Momentum Properties Management Corporation, 848 Phil. 621, 635-636 (2019) [Per J. Carpio, Second Division], citing Abbott Laboratories, Philippines v. Alcaraz, 714 Phil. 510, 533 (2013) [Per J. Perlas-Bernabe, En Banc].

[2] See Moral v. Momentum Properties Management Corporation, 848 Phil. 621, 635-636 (2019) [Per J. Carpio, Second Division].

[3] See Abbott Laboratories, Philippines v. Alcaraz, 714 Phil. 510, 533 (2013) [Per J. Perlas-Bernabe, En Banc].

[4] Rollo, p. 151.

[5] Id. at 202-205.

[6] Id. at 202-203.

[7] Id. at 206.

[8] Id. at 208.

[9] Id.

[10] Id. at 153, 182.

[11] Id. at 155-156.

[12] Ponencia, p. 2.

[13] Rollo, p. 102.

[14] Id. at 161-162.

[15] Id. at 162-165.

[16] Id. at 168-171.

[17] Ponencia, pp. 6-7.

[18] Id. at 9.

[19] Id. at 10.

[20] 714 Phil. 510 (2013) [Per J. Perlas-Bernabe, En Banc].

[21] Ponencia, p. 10. See also 714 Phil. 510, 557 (2013) [Per J. Perlas-Bernabe, En Banc].

[22] Ponencia, p. 11.

[23] Id. at 12.

[24] Id.

[25] 613 Phil. 696 (2009) [Per J. Brion, Second Division].

[26] Id. at 706-707.

[27] Id. at 708 (Emphasis in the original).

[28] Id. at 707.

[29] Jolo's Kiddie Carts v. Caballa, 821 Phil. 1101, 1109 (2017) [Per J. Perlas-Bernabe, Second Division], citing University of Santo Tomas (UST) v. Samahang Manggagawa ng UST, 809 Phil. 212, 220 (2017) [Per J. Perlas-Bernabe, First Division].

[30] Remoticado v. Typical Construction Trading Corp., 830 Phil. 508, 515 (2018) [Per J. Leonen, Third Division], citing Doctor v. NII Enterprises, 821 Phil. 251, 265 (2017) [Per J. Leonardo-De Castro, First Division].

[31] Rollo, p. 161.

[32] Id.

[33] Id.

[34] Id. at 163. See also id. at 232.

[35] Id. at 163-164.

[36] Id. at 165-166.

[37] Id. at 168-170.

[38] Id. at 208-210.

[39] Id. at 42.

[40] BLACK'S LAW DICTIONARY 1694 (Revised 11th ed., 2019).

[41] Rollo, pp. 236-238

[42] Id. at 236, par. 5 of the Affidavit (Emphasis supplied).

[43] Id.

[44] Id. at 162.

[45] Id. at 236.

[46] Id. at 153.

[47] Id. at 92.

[48] Id. at 40.

[49] Id. at 153.

[50] Moral v. Momentum Properties Management Corporation, 848 Phil. 621, 636 (2019) [Per J. Carpio, Second Division], citing Abbott Laboratories, Philippines v. Alcaraz, 714 Phil. 510, 534 (2013) [Per J. Perlas-Bernabe, En Banc].

[51] Aberdeen Court, Inc. v. Agustin, Jr., 495 Phil. 706, 716-717 (2005) [Per J. Azcuna, Third Division].

[52] Robinsons Galleria v. Ranchez, 655 Phil. 133 (2011) [Per J. Brion, Second Division], citing Aberdeen Court, Inc. v. Agustin, Jr., 495 Phil. 706, 716-717 (2005) [Per J. Azcuna, Third Division].

[53] Ponencia, p. 11.

[54] Id. at 10.

[55] Id. at 210.

[56] Book VI, Rule I, Section 2, Implementing Rules of the Labor Code, as amended by DOLE Department Order No. 147-15 (2015).

[57] AMENDING THE RULES IMPLEMENTING BOOKS III AND VI OF THE LABOR CODE, AS AMENDED (1997).

[58] LABOR CODE (1974), art. 5.

[59] The two-notice rule is stated in Rule XXIII, Section 2 (I), as amended by DOLE Department Order No. 09-97.

[60] CONST., art. II, sec. 18.

[61] CONST., art. XIII.

[62] Wallem Maritime Services, Inc. v. NLRC and Macatuno, 331 Phil. 476 (1996) [Per J. Romero, Second Division], citing Callanta v. Carnation Philippines, Inc., 229 Phil. 279 (1986) [Per J. Fernan, Second Division].

[63] Dumapis v. Lepanto Consolidated Mining Company, 884 Phil. 156, 162 (2020) [Per J. Lazaro-Javier, En Banc].

[64] 867 Phil. 270 (2019) [Per J. Hernando, Second Division].

[65] Id. at 287.

[66] LABOR CODE, art. 294 [279]. Security of Tenure. 鈥� In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

[67] See Jaso v. Metrobank & Trust Co., G.R. No. 235794, May 12, 2021 [Per J. Inting, Third Division]; Abbott Laboratories v. Alcaraz, 714 Phil. 510 (2013); Skyway O&M v. Reinante, 860 Phil. 668 (2019) [Per J. Inting, Third Division]; Moral v. Momentum Properties Management Corporation, 848 Phil. 621, 635-636 (2019) [Per J. Carpio, Second Division]; Brazil v. STI Education Service Group, 843 Phil. 828 (2018) [Per J. Tijam, First Division]; and PNOC-EDC v. Buenviaje, 788 Phil. 508 (2016) [Per J. Jardeleza, Third Division].

[68] 322 Phil. 70 (1996) [Per J. Romero, Second Division].

[69] Id. at 79.

[70] LABOR CODE, art. 297[282].

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