The facts as found by the CA are as relationships, etc.

posing or would pose

  follows:chanRoblesvirtualLawlibrary possible conflict of interest; (4) other forms of
deceit, fraud, swindling, and
In an Employment Contract dated April 26, misrepresentation committed by an employee
2004,3 Smart Communications, Inc. (Smart) against the company or its representative;
hired Jose Leni Solidum (Solidum) as and (5) fraud or willful breach of trust in
Department Head of Smart Prepaid/Buddy relation to transactions covered by Invoice No.
THIRD DIVISION Activations under the Product Marketing 2921 and CE No. 2005-533 as well as CE Nos.
Group. Existing company procedures provide 2005-413, 2005-459, 2005-461, 2005-526,
G.R. No. 197763, December 07, 2015 that a department head shall approve project 2005-460, 2005-552 and 2005-527 that were
proposals coming from his marketing approved/noted by him. Solidum received a
assistants and product managers/officers. copy of the Notice on the same date. Pending
SMART COMMUNICATIONS, INC., MR.
Once approved, a finance officer will assign a administrative investigation, Solidum was
NAPOLEON L. NAZARENO, AND MR. RICKY
reference number to the project with a stated placed under preventive suspension without
P. ISLA, Petitioners, v. JOSE LENI Z.
budget allocation. If the Company decides to pay for a period of thirty (30) days.
SOLIDUM, Respondent.
engage the services of a duly accredited
creative agency, the department head will In a letter dated September 26,
G.R. No. 197836
coordinate with it to discuss the details of the 2005,6 Solidum denied the charges and
project. The implementation details and total claimed that he never defrauded nor deceived
JOSE LENI Z.
amount of the project will then be included in the Company in his transactions.
SOLIDUM, Petitioner, v. SMART
a Cost Estimate (CE) submitted to the
COMMUNICATIONS, INC., MR. NAPOLEON
Company, routed for approval, and returned Continued audit investigation, however,
L. NAZARENO, AND MR. RICKY P.
to the selected agency for implementation. revealed that Solidum approved/noted several
ISLA, Respondent.
After the project is carried out, the agency will CEs covering activities for which payments
bill the Company by sending the CE with were made but did not actually carried out.
DECISION attached invoices and other supporting Unaccredited third parties were also engaged
documents. in the implementation of the projects. Thus,
VELASCO JR., J.: the Company issued another Notice to Explain
On September 21, 2005, Solidum received a dated October 21, 20057 to Solidum, this time
The Case Notice to Explain of even date4 from the covering the following additional CEs: 2005-
Company charging him with acts of dishonesty 416, 2005-480, 2005-481, 2005-479, 2005-
and breach of trust and confidence. In 512, 2005-513, and 2005-533. Solidum was
summary, he was charged with violating again preventively suspended for another ten
These are consolidated petitions filed under
"various company policies by misrepresenting (10) days. Further, the Company scheduled
Rule 45 of the Rules of Court assailing the
and using his position and influence in his the administrative investigation of the case on
Decision dated April 4, 20111 and Resolution
grant plot to defraud Smart by conceptualizing October 26, 2005.
dated July 14, 20112 of the Court of Appeals
fictitious marketing events, appointing
(CA) in CA-G.R. SP No. 109765 entitled Jose
fictitious advertising agencies to supposedly Solidum then sent a letter dated October 24,
Leni Z. Solidum v. National Labor Relations
carry out marketing events and submitting 20058 to the Company requesting copies of
Commission (First Division), Smart
fictitious documents to make it appear that the pertinent documents so he can prepare an
Communications, Inc., Napoleon L. Nazareno
the marketing events transpired."5 He was intelligible explanation. In another letter dated
and Ricky P. Isla. The CA Decision affirmed
charged with the following infractions: (1) October 26, 2005,9 Solidum stated that the
with modification the Resolution dated January
falsification and/or knowingly submitting investigation is highly suspicious and his
26, 2009 and Decision dated May 29, 2009 of
falsified contents of reports/documents extended suspension imposed undue burden.
the National Labor Relations Commission
relative to his duties and responsibilities; (2) He also reserved his right to present evidence.
(NLRC) in NLRC Case No. 00-11-09564-05.
obtaining through fraudulent means materials, In his last letter dated October 28,
goods or services from the Company; (3) 2005,10 Solidum declared that he shall no
The Facts failing or refusing to disclose to the Company longer receive or entertain notices or
any existing or future dealings, transactions, memorandum, except the final decision
resolving the administrative charges against filing an appeal to the Commission. x x x bond requirement, viz:
him. Given the factual milieu, the Commission rules
Moreover, perusal of the appeal shows that that respondents' appeal was indeed filed
Thereafter, the Company issued a letter dated the appeal bond attached to it is not within the ten (10) day period x x x. Since the
November 2, 2005, alleging that Solidum accompanied by a security deposit or Decision [of the Labor Arbiter] dated July 3,
refused to accept the documents that he had collateral. The CERTIFICATE OF NO 2006 was received by respondents on July 13,
requested. Using this allegation, the Company COLLATERAL x x x that was submitted by the 2006, respondents have (sic) effectively until
imposed an additional preventive suspension bonding company stating that the bond was July 25, 2006 (considering that July 23 was a
often (10) days on Solidum. issued on (sic) behalf of respondent SMART Sunday, and July 24 was a declared
"without collateral because they are our nonworking day) x x x.
Based on the available evidence, the Company valued client" and that "[t]he company
decided to dismiss Solidum for breach of trust declares its commitment to honor the validity xxxx
in a Notice of Decision dated November 9, of the foregoing bond notwithstanding the
2005.11 Corollarily, a Notice of Termination absence of collateral" does not serve any As to the absence of security deposit or
was served on him on November 11, 2005. purpose other than an admission that the collateral, the Commission x x x finds that
security deposit or collateral requirement respondents were able to comply substantially
Aggrieved, Solidum filed a complaint dated under Section 6, Rule VI of the Revised Rules with the pre-requisite for the perfection of
November 19, 2005 for illegal suspension and of [Procedure of the NLRC for perfecting an appeal.
dismissal with money claims before the appeal was not complied with. Needless to
Arbitration Branch of the NLRC claiming that state, the absence of a security deposit or x x x While the appeal bond was posted
his extended suspension and subsequent collateral securing the bond renders the without security or collateral, the Certification
termination were without just cause and due appeal legally dated July 20, 2006, issued by the bonding
process. infirm.13ChanRoblesVirtualawlibrary company attests to the latter's "commitment
to honor the validity of the foregoing bond
In its motion for reconsideration, the
In a Decision dated July 3, 2006,12 the labor notwithstanding the absence of collateral."
Company insisted that the appeal was filed
arbiter declared that the extended period of Otherwise stated, the very purpose of a
within the reglementary period considering
suspension without pay was illegal and that security or collateral should be deemed served
that it received the labor arbiter's decision
Solidum was unjustly dismissed from work considering the guarantee of the bonding
only on July 13, 2006 and not July 10, 2006.
without observance of procedural due process. company to pay the entire amount of the bond
It presented among others the Certification
He was ordered reinstated and was awarded in the event respondents suffer an adverse
from Makati Central Post Office, the pertinent
backwages and monetary claims. The labor disposition of their appeal. It matters not that
page of the letter carrier's Registry Book, and
arbiter ratiocinated that the ground of breach the bond was issued on behalf of respondents
the respective affidavit of the letter carrier
of trust and confidence is restricted to without collateral for after all, the bond is
and the Company's receiving clerk. It added
managerial employees; however, no accompanied by a declaration under oath
that in case of conflict between the registry
substantial evidence was presented to prove bearing the bonding company's commitment
receipt and the postmaster's certification, the
that Solidum has the prerogatives akin to a to honor the validity of the surety bond and
latter should prevail. Likewise, the Company
manager other than his titular designation as attesting that the surety bond is genuine and
maintained that the surety bond was secured
department head. shall be in effect until the final disposition of
by its goodwill and the alleged lack of
the case.
collateral or security will not render the bond
The Company appealed the adverse decision
invalid in view of the surety's unequivocal The NLRC likewise reversed the labor arbiter's
of the labor arbiter to the NLRC but was
commitment to pay the monetary award. decision. It ruled that the seriousness of
denied for having been filed out of time and/or
Solidum's infractions justified the additional
for non-perfection, thus:
Finding merit in the motion, the NLRC issued a period of suspension. It added that the labor
Records show that respondents received a
Resolution dated January 26, 200914 reversing arbiter erred in declaring Solidum's dismissal
copy of the Decision on "July 10, 2006" (See
its earlier ruling and giving due course to the illegal and without just cause on the basis that
Registry Return Receipt, p. 561, Record)
appeal. It upheld the certification of the he is not a managerial employee. On the
However, respondents filed their appeal only
postmaster over the registry receipt and found contrary, overwhelming evidence showed that
on "July 25, 2006" x x x already beyond the
that there was substantial compliance with the Solidum holds a position of trust and has
reglementary ten (10) calendar day period for
violated various company policies. Finally, the The Issues C.
NLRC found that Solidum was accorded
procedural due process. The dispositive In G.R. No. 197763, Smart raises the Whether or not the public respondent Court of
portion of the Resolution thus reads: following issues: Appeals gravely erred in failing to consider the
WHEREFORE, the foregoing considered, the (A) evidence petitioner showing that even up to
Commission hereby resolves as follows: the present, or more than five (5) years after
The Court of Appeals gravely erred in the expiration of the 10-day reglementary
1. complainant's Motion to Inhibit declaring illegal the second preventive period to file a perfected appeal with the NLRC
dated June 13, 2008 is suspension imposed by petitioner Smart upon on July 20, 2006, private respondent Smart
DENIED for lack of merit. the respondent. still fails to provide petitioner with a certified
true copy of the surety bond and copy of the
2. respondents' Motion for (B) security deposit required for the perfection of
Reconsideration dated July 27, the appeal under Section 6, Rule VI of the
2007 is GRANTED and their The Court of Appeals gravely erred in 2005 NLRC Revised Rules of Procedure.
instant appeal dated July 25, declaring that petitioner Smart may not place
2006 is given DUE COURSE. the respondent under another preventive D.
suspension after discovery of additional
3. the Commission's Resolution offenses notwithstanding that the offenses Whether or not the public respondent Court of
dated July 4, 2007 is SET committed by the respondent warrant another Appeals committed grave abuse of discretion
ASIDE and VACATED. preventive in upholding the validity of the appeal bond
suspension.15ChanRoblesVirtualawlibrary filed by private respondent Smart despite the
fact that both the appeal bond and collateral
4. the appealed Decision a quo In G.R. No. 197836, Solidum raises the
securing the said bond had long expired.
dated July 3, 2006 is SET following issues, to wit:
ASIDE and new one is A.
ENTERED dismissing the E.
complaint below for lack of Whether or not the public respondent Court of
merit. Appeal's Decision dated April 4, 2011 and Whether or not the public respondent Court of
Resolution dated July 14, 2011, ruling that the Appeals gravely erred in ruling that the
appeal of private respondent Smart filed with technical rules are not controlling in any
SO ORDERED. proceeding before the NLRC.
public respondent NLRC was well taken within
Thus, Solidum appealed to the CA. The CA the reglementary period, is in accordance with
then rendered the assailed Decision dated law, rules and prevailing jurisprudence. F.
April 4, 2011 affirming with modification the
Decision of the NLRC. The dispositive portion B. Whether or not the public respondent Court of
of the CA Decision reads: Appeals gravely erred in affirming the
FOR THESE REASONS, the Court AFFIRMS the Whether or not the public respondent Court of Resolution of public respondent NLRC dated
NLRC Resolution dated January 26, 2009 with Appeal's Decision dated April 4, 2011 and January 26, 2009 which set aside the decision
the MODIFICATION that petitioner Jose Leni Resolution dated July 14, 2011, considering of the labor arbiter dated July 3, 2006
Solidum be paid his salaries and benefits private respondent Smart's appeal with the declaring that petitioner's preventive
which accrued during the period of his NLRC as perfected by upholding the validity of suspension for more than 30 days without pay
extended preventive suspension. the appeal bond posted by said private is illegal and tantamount to constructive
respondent Smart even if there was no dismissal.
SO ORDERED. security deposit or collateral, is in accordance
From such Decision both parties moved for with Section 4 and 6, Rule VI of the 2005 G.
reconsideration. The CA denied such Motions NLRC Revised Rules of Procedure, NLRC
in a Resolution dated July 14, 2011. From Memorandum Circular 1-01, series of 2004, Whether or not the public respondent Court of
such ruling of the appellate court, both parties and prevailing jurisprudence. Appeals gravely erred in finding that petitioner
appealed. Hence, the instant petitions. was afforded procedural due process by
private respondent under the Two-Notice Rule. In G.R. No. 197763, Smart contended: protects itself from further harm or losses
On the same vein, the respondent was validly because of the erring employee. This concept
H. placed under second preventive suspension was explained by the Court in Gatbonton v.
for the reason that pending investigation of National Labor Relations Commission:18
Whether or not the public respondent Court of separate and distinct set of offenses Preventive suspension is a disciplinary
Appeals gravely erred in finding that those committed by the respondent as contained in measure for the protection of the
irregularities committed by petitioner were the second Notice to Explain dated 21 October company's property pending
proven by documentary evidence and 2005 (Annex F hereof), his continued investigation of any alleged malfeasance
testimonies of his product managers and presence in the company premises during the or misfeasance committed by the
marketing assistants despite the fact that investigation poses serious and imminent employee. The employer may place the
none of those product managers and threat to the life or property of the employer worker concerned under preventive
marketing assistants appeared and testified and co-workers.17ChanRoblesVirtualawlibrary suspension if his continued employment poses
during the hearings and, most importantly, a serious and imminent threat to the life or
On the other hand, Solidum claims that his
during the hearing for cross-examination on property of the employer or of his co-workers.
preventive suspension of 20 days is an
their submitted affidavits and documentary However, when it is determined that there is
extension of his initial 30-day suspension and,
evidence as scheduled by the labor arbiter no sufficient basis lo justify an employee's
hence, illegal and constitutes constructive
upon specific request and manifestation by the preventive suspension, the latter is entitled to
dismissal.
petitioner invoking his constitutional right to the payment of salaries during the time of
cross-examine. preventive suspension. (Emphasis supplied)
Smart's position is impressed with merit.
Such principle was applied by the Court
I. The relevant provisions regarding preventive in Bluer Than Blue Joint Ventures/Mary Ann
suspensions are found in Sections 8 and 9 of Dela Vega v. Esteban,19 where it was ruled:
Whether or not the public respondent Court of Rule XXIII, Book V of the Omnibus Rules Preventive suspension is a measure allowed
Appeals gravely erred in finding that herein Implementing the Labor Code (Omnibus by law and afforded to the employer if an
petitioner is a fiduciary employee and is Rules), as amended by Department Order No. employee's continued employment poses a
therefore covered by the trust and confidence 9, Series of 1997, which read as follows: serious and imminent threat to the employer's
rule to a wider latitude. Section 8. Preventive suspension. The life or property or of his co-workers. It may be
employer may place the worker concerned legally imposed against an employee whose
J. under preventive suspension only if his alleged violation is the subject of an
continued employment poses a serious and investigation.
Whether or not the public respondent Court of imminent threat to the life or property of the
Appeals gravely erred in finding that petitioner employer or of his co-workers. In this case, the petitioner was acting well
is a managerial employee. within its rights when it imposed a 10-day
Section 9. Period of suspension. No preventive suspension on Esteban. While it
K. preventive suspension shall last longer may be that the acts complained of were
than thirty (30) days. The employer shall committed by Esteban almost a year
Whether or not the public respondent Court of thereafter reinstate the worker in his former before the investigation was conducted,
Appeals gravely erred in finding that there or in a substantially equivalent position or the still, it should be pointed out that Esteban
was just and valid cause to terminate the employer may extend the period of was performing functions that involve
petitioner from the suspension provided that during the period of handling of the petitioner's property and
service.16ChanRoblesVirtualawlibrary extension, he pays the wages and other funds, and the petitioner had every right
The Court's Ruling benefits due to the worker. In such case, the to protect its assets and operations
worker shall not be bound to reimburse the pending Esteban's
The petitions must be denied. amount paid to him during the extension if the investigation. (Emphasis supplied)
employer decides, after completion of the
While the Omnibus Rules limits the period of
Solidum's 2nd preventive suspension is hearing, to dismiss the worker, (Emphasis
preventive suspension to thirty (30) days,
valid supplied)
such time frame pertains only to one offense
By a preventive suspension an employer by the employee. For an offense, it cannot go
beyond 30 days. However, if the employee is suspension of Solidum.
charged with another offense, then the In case of surety bond, the same shall be
employer is entitled to impose a preventive As to the issues raised by Solidum in G.R. No. issued by a reputable bonding company duly
suspension not to exceed 30 days specifically 197836, the same are bereft of merit. accredited by the Commission or the Supreme
for the new infraction. Indeed, a fresh Court, and shall be accompanied by original or
preventive suspension can be imposed for a Smart's appeal from the Decision of the certified true copies of the following:
separate or distinct offense. Thus, an labor arbiter was filed within the xxxx
employer is well within its rights to reglementary period
preventively suspend an employee for other c) proof of security deposit or collateral
wrongdoings that may be later discovered Solidum contends that Smart's motion for securing the bond: provided, that a check
while the first investigation is ongoing. reconsideration of the labor arbiter's Decision shall not be considered as an acceptable
was filed out of time. The issue here is: When security. (Emphasis supplied)
As in this case, Smart was able to uncover did Smart receive a copy of the Decision? The
Thus, Solidum claims that the lack of proof of
other wrongdoings committed by Solidum confusion originated from the date stamped
security deposit or collateral securing the bond
during the investigation for the initial charges by the receiving clerk of Smart on the
renders the bond irregular and the appeal
against him. These newly discovered receiving copy of the Decision as July 10,
legally infirm.
transgressions would, thus, require an 2006. Smart claims that the stamped date
additional period to investigate. The first batch was erroneous as it actually received a copy of
We disagree.
of offenses was captured in the September 21, the Decision only on July 13, 2006. Such claim
2005 Notice to Explain issued by Smart. The is supported by the certification from the
As aptly found by the NLRC, substantial
notice covers fraud or willful breach of trust in postmaster of the Makati Central Post Office,
compliance with the rules on appeal bonds has
relation to transactions covered by Invoice No. the letter carrier's Registry Book, and the
been repeatedly held by this Court to be
2921 and CE No. 2005-533 as well as CE Nos. affidavits of the letter carrier and Smart's
sufficient for the perfection of an appeal:
2005-413, 2005-459, 2005-461, 2005-526, receiving clerk. With such overwhelming
The perfection of an appeal within the
2005-460, 2005-552 and 2005-527 that were evidence, there can be no other conclusion
reglementary period and in the manner
noted by him. For these offenses, Solidum except that Smart received a copy of the
prescribed by law is jurisdictional, and
was issued a preventive suspension without Decision on July 13, 2006 and filed their
noncompliance with such legal requirement is
pay for 30 days. motion for reconsideration within the
fatal and effectively renders the judgment
prescribed 10-day period on July 25, 2006, as
final and executory. As provided in Article 223
On October 21, 2005, Smart, however, issued July 24, 2006 fell on a Sunday. Thus, Smart's
of the Labor Code, as amended, in case of a
another notice to explain to Solidum this time Motion was timely filed.
judgment involving a monetary award, an
involving additional CEs: 2005-416, 2005-480,
appeal by the employer may be perfected only
2005-481, 2005-479, 2005-512, and 2005- Smart substantially complied with the
upon the posting of a cash or surety bond
513. Solidum was again preventively requirements of an appeal bond
issued by a reputable bonding company duly
suspended for twenty (20) days. The
accredited by the Commission in the amount
preventive suspension of 20 days is not an Next, Solidum questions the validity of the
equivalent to the monetary award in the
extension of the suspension issued in relation appeal bond filed by Smart, pointing out the
judgment appealed from.
to the September 21, 2005 Notice to Explain lack of a proof of security deposit or collateral
but is a totally separate preventive suspension necessary to perfect its appeal to the NLRC.
However, not only in one case has this Court
for the October 21, 2005 Notice to Explain. As To recall, Section 6, Rule VI of the 2005 NLRC
relaxed this requirement in order to bring
earlier pointed out, the transactions covered Revised Rules of Procedure states:
about the immediate and appropriate
by the 30-day preventive suspension are Section 6. Bond. - In case the decision of the
resolution of cases on the merits.
different from that covered by the 20-day Labor Arbiter or the Regional Director involves
In Quiambao v. National Labor Relations
preventive suspension. Such being the case a monetary award, an appeal by the employer
Commission, this Court allowed the relaxation
the court a quo was incorrect when it treated may be perfected only upon the posting of a
of the requirement when there is substantial
said suspension as an "extension" and, bond, which shall either be in the form of cash
compliance with the rule. Likewise, in Ong v.
consequently, it is a miscue to award Solidum deposit or surety bond equivalent in amount
Court of Appeals, the Court held that the bond
the payment of back salaries and benefits to the monetary award, exclusive of damages
requirement on appeals may be relaxed when
corresponding to the 20-day preventive and attorney's fees.
there is substantial compliance with the Rules is not factually on all fours with the instant (Emphasis supplied)
of Procedure of the NLRC or when the case. In Maricalum, the Court ruled that
It is not necessary that witnesses be
appellant shows willingness to post a partial Decorion was illegally constructively
cross-examined by counsel of the adverse
bond. The Court held that "while the bond dismissed, which is why he was entitled to
party in proceedings before the labor
requirement on appeals involving monetary reinstatement. Here, Solidum was validly
arbiter
awards has been relaxed in certain cases, this dismissed for loss of trust and confidence.
can only be done where there was substantial Thus, his reliance on Maricalum is misplaced
Solidum further alleges that he was denied the
compliance of the Rules or where the and will not justify his reinstatement.
right to cross-examine the witnesses who
appellants, at the very least, exhibited
submitted affidavits in favor of Smart; thus,
willingness to pay by posting a partial As to Solidum's claim of denial of due process,
the affidavits must be considered hearsay and
bond."20ChanRoblesVirtualawlibrary such issues are factual in nature. This Court,
inadmissible. In support of such contention,
not being a trier of facts, will not pass upon
Furthermore, considering that it is the NLRC Solidum cites Naguit v. National Labor
such issues, as ruled in Nahas v. Olarte:23
that has interpreted its own rules on this Relations Commission26
The Court is not a trier of facts; factual
matter, the Court is inclined to accept such
findings of the labor tribunals when affirmed
interpretation. The Court has held, "By reason Such contention is misplaced.
by the CA are generally accorded not only
of the special knowledge and expertise of
respect, but even finality, and are binding on
administrative agencies over matters falling The controlling jurisprudence on the matter is
this Court.
under their jurisdiction, they are in a better the ruling in the more recent Philippine Long
position to pass judgment on those Notably, Solidum's allegation that he was Distance Telephone Company v.
matters."21 Moreover, the NLRC properly denied his right to counsel was passed upon Honrado,27 where the Court ruled:
relaxed the rules on appeal bonds. the NLRC in this wise: It is hornbook in employee dismissal cases
Similarly, the Commission is not convinced that "[t]he essence of due process is an
The NLRC has the power and authority to with Labor Arbiter Pati's finding that the opportunity to be heard, or as applied to
promulgate rules of procedure under Article complainant was deprived on his right to administrative proceedings, an opportunity to
218(a) of the Labor Code. As such, it can counsel when he was not allowed to be explain one's side x x x. A formal or trial type
suspend the rules if it finds that the interests assisted by his counsel at the alleged hearing is not at all times and in all instances
of justice will be better served if the strict investigation held on September 21, essential to due process, the requirements of
compliance with the rules should be relaxed. 2005. Other than his bare claim, there is which are satisfied where the parties are
In short, a substantial compliance may be no evidence on record buttressing afforded fair and reasonable opportunity to
allowed by the NLRC especially in this case complainant's claim.24 x x x (Emphasis explain their side of the controversy." Neither
where the party which submitted the bond is a supplied) is it necessary that the witnesses be
multibillion company which can easily pay cross-examined by counsel for the
Similarly, Solidum contends that he did not
whatever monetary award may be adjudged adverse party. (Emphasis supplied)
receive other documents necessary for him to
against it. Even if there is no proof of security
be apprised of the charges against him. Such The Court explained the reason why cross-
deposit or collateral, the surety bond issued
are also issues of fact. The NLRC ruled on this examination is not required in the proceedings
by an accredited company is adequate to
matter in this wise: before the labor arbiter in Reyno v. Manila
answer for the liability if any to be incurred by
The Commission is likewise not convinced with Electric Company,28 citing Rabago v. National
Smart.
the finding of Labor Arbiter Pati that Labor Relations Commission29 where the Court
complainant was deprived of due process ruled:
Solidum is not entitled to reinstatement
when he was not furnished copies of the x x x The argument that the affidavit is
documents he referred to in his letter dated hearsay because the affiants were not
Next, Solidum claims that due to the
October 24, 2005 thereby prompting him not presented for cross-examination is not
extension of his period of preventive
to attend the hearings on October 26 and 28, persuasive because the rules of evidence are
suspension, he must be considered as having
2005. There is evidence to show that not strictly observed in proceedings before
been constructively dismissed and entitled to
respondents furnished copies of the administrative bodies like the NLRC where
reinstatement and backwages. To support his
documents requested by complainant but decisions may be reached on the basis of
claim, Solidum cites Maricalum Mining
which the latter refused to received when position papers only. x x x
Corporation v. Decorion22 Such case, however,
they were sent to his residence.25 x x x
Clearly, the alleged denial of Solidum's ground of breach of trust and confidence."
request to cross-examine the witnesses of Under the foregoing facts, complainant's While in Vergara v. National Labor Relations
Smart does not render their affidavits duties and responsibilities, coupled with the Commission,32 the Court was even more
hearsay. Thus, these pieces of evidence were amount of salaries he is receiving and other succinct and ruled that the filing of the
properly considered by the labor tribunal. benefits he is entitled to, certainly show that complaint by. the public prosecutor is a
his position of Department Head is managerial sufficient ground for a dismissal of an
Solidum was a managerial employee of in nature.30 (Emphasis supplied) employee for loss of trust and confidence, to
Smart wit:
Solidum denies that he is a managerial
The Court finds adequate basis for private
employee by stating that just because he
Next, Solidum argues that he is not a fiduciary respondent's loss of trust and confidence in
directed subordinates, he should be
or managerial employee and, therefore, petitioner, x x x Besides, the evidence
considered a managerial employee. He also
cannot be legally dismissed on the ground of supporting the criminal charge, found
argues that just because he had a large salary
loss of trust and confidence. Article 212(m) of after preliminary investigation as
does not mean that he was a managerial
the Labor Code defines a Managerial Employee sufficient to show prima facie guilt,
employee. Finally, Solidum denies having the
as: constitutes just cause for his termination
power to lay down and execute management
(m) 'Managerial employee' is one who is based on loss of trust and confidence. To
policies.
vested with powers or prerogatives to lay constitute just cause, petitioner's malfeasance
down and execute management policies did not require criminal conviction. Verily,
Notably, however, Solidum does not deny
and/or to hire, transfer, suspend, lay-off petitioner was dismissed not because he was
having "the authority to devise, implement
recall, discharged, assign or discipline convicted of theft, but because his dishonest
and control strategic and operational policies
employees. x x x acts were substantially proven, (Emphasis
of the Department he was then heading." This
supplied)
The NLRC found that Solidum was a is clearly the authority to lay down and
managerial employee in this wise: execute management policies. Consequently, In the instant case, both the NLRC and the CA
The facts on hand indubitably show that the CA affirmed these findings. Thus, the found Solidum guilty of the alleged acts that
complainant occupied the position of NLRC and the CA correctly found that Solidum constituted grounds for his dismissal for loss
Department Mead and held the same with was a managerial employee. As such, he may of trust and confidence, which were
trust and confidence as required him under his be validly dismissed for loss of trust and summarized by the CA as follows:
employment contract. As Department Head of confidence. First, Solidum noted two versions of CE No.
the Smart Buddy Activations and Usage 2005-533 with description "Buy SIM Download
Group, complainant led and directed his The rulings of trial court in criminal cases All You Can" but containing different
subordinates composed of product managers, generally do not bind the labor tribunals particulars. Specifically, the second CE
product officers, and senior marketing included charges from various radio stations
assistants to achieving the company's Further, Solidum alleges that he did not which are not found in the first CE. However,
marketing goals. Moreover, complainant commit any dishonesty-related offense that the Company discovered that the only projects
appears to have the authority to devise, would justify Smart's loss of confidence in with approved radio components were the
implement and control strategic and him. He supports such allegation with the "Mindanao Kolek Mo To Promo" which ended
operational policies of the Department he rulings of two (2) trial courts of Makati City on July 15, 2005; the "Visayas Kolek Mo To
was then heading. Likewise, it cannot be that ruled that Solidum did not commit any Promo" which ended on August 15, 2005, and
denied that complainant's Department has a fraud in the subject transactions. the "Smart Download and Win" with promo
budget of millions of pesos over which he period from August 22 to October 22, 2005.
exercises the power to allocate to different Solidum's reliance on the rulings of the trial The "Buy SIM Download All You Can" has no
marketing projects conceptualized by him courts is misplaced. His acquittal before such approved radio component. Moreover,
and/or his subordinates. The records would courts cannot bind the labor tribunal. Solidum submitted certificates of performance
also show that for complainant's services, he from various radio stations which are outside
received a monthly salary in the hefty amount In Amadeo Fishing Corporation v. Nierra,31 the of the promo periods.
of P233,910.00, monthly allowance of Court ruled that "an acquittal in criminal
P19,000.00, and bonuses and incentives of prosecution does not have the effect of Second, in the implementation of several
more than P7 Million. extinguishing liability for dismissal on the projects, Solidum endorsed unaccredited third
parties, which is already a violation of
established company policies. One of these
corporations is M&M Events, Inc., which
turned out as a non-existing corporation. The
Smart Senior Product Officer Ma. Luisa
Suguitan even testified that she has not
worked with an agency such as M&M Events,
Inc. Worse, the said entity cannot be found in
its declared business address and the VAT
registration number appearing on its sales
invoice is registered under a different
company. Moreover, Solidum approved CE No.
2005-459 and CE No. 2005-460, pertaining to
different projects, but with attached invoices
from M&M Events, Inc. bearing the same date
and amount. Finally, Solidum deviated from
the existing company procedures. He
presented CEs to his subordinate product
manager for signature with his approval
already affixed. Later, it was discovered that
the duly signed CEs were altered without the
knowledge of the product manager. He even
dictated to the agency the title to be used and
the details that should be included in the CEs.
The CEs were then forwarded directly to him
instead of the Smart marketing point person.
Solidum also charged certain projects against
the budget of another approved program.
Such findings of the NLRC and affirmed by the
CA are binding on this Court. Thus, Solidum's
petition must also fail on this point.

WHEREFORE, the petition of Jose Leni Z.

Solidum in G.R. No. 197836 is
hereby DENIED. The petition of petitioners
Smart Communications, Inc, et al. in G.R. No.
197763 is PARTIALLY GRANTED. The Court
of Appeals Decision dated April 4, 2011 is
hereby AFFIRMED with MODIFICATION tha
t the award of salaries and benefits that
accrued during the period of extended
preventive suspension is DELETED.

No costs.

SO ORDERED.chanroblesvirtuallawlibrary