455-457 Fraud

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  455 Diamond Motors v Court of Appeals 417 SCRA 46 (2003) Just Causes - Fraud FACTS Petitioner hired private respondent Cadao and subsequently appointed him as Special Accounts Manager to handle the promotion and selling of Mitsubishi vehicles to precisely listed corporate clients on fleet basis. Units purchased by fleet sale are usually cheaper than those bought on a retail basis. TAPE Inc., one of petitioner’s clients, sent Purchase Orders for 3 units to be registered for their employees. However, upon investigation of the petitioner, it was found out that only one of the three registered names is an employee of TAPE Inc. Therefore, the client manifested that it will not pay for the purchase orders. Cadao received a memorandum from petitioner requiring him to explain the misrepresentation he committed in favor of the three customers. In addition, he was accused of dishonesty and deceit in the conduct of the said sale. Cadao, on the same day, submitted his written explanation. He was subsequently dismissed by petitioner. He filed a complaint for illegal dismissal with prayer for the payment of earned salary, commission and other accrued benefits against the petitioner. The Labor Arbiter dismissed the complaint for lack of merit. NLRC reversed the decision and declared his dismissal illegal. He was awarded separation pay and back wages. Petitioner submitted the case for review of the Court of Appeals; the latter affirmed NLRC’s decision. Hence, the present petition.   ISSUE Whether or not the private respondent’s dismissal was illegal   RULING No, the private respondent was not illegally dismissed. Article 282(c) of the Labor Code   states that an employer can terminate the employment of the employee concerned for fraud or willful breach by an employee of the trust reposed in him by his employer or duly authorized representative. The loss of trust and confidence must be based on the willful breach of the trust reposed in the employee by his employer. Ordinary breach will not suffice. A breach of trust is willful if it is done intentionally, knowingly and purposely, without  justifiable excuse, as distinguished from an act done carelessly, thoughtlessly, heedlessly or inadvertently. In Concorde Hotel v. Court of Appeals, the Court has laid down the guidelines for the application of the doctrine of loss of confidence, i.e., (a) the loss of confidence should not be simulated; (b) it should not be used as a subterfuge for causes which are improper, illegal or unjustified; (c) it should not be arbitrarily asserted in the face of overwhelming evidence to the contrary; and (d) it must be genuine, not a mere afterthought to justify earlier action taken in bad faith. In the case at bar, the fact that respondent attempted to deprive petitioner of its lawful revenue is tantamount to fraud against the company, which warrants dismissal from the service. The fact that petitioner failed to show it suffered loses as a consequence if respondent’s act is immaterial.   Petition was granted. NLRC and CA’ s decisions were reversed and the decision of the Labor Arbiter is reinstated. 456 Aldeguer v Tomboc 560 SCRA 49 (2008) Just Causes - Fraud FACTS Petitioner is a corporation engaged in the retail and wholesale of Loalde brand products. It hired respondent Tomboc and the latter was promoted to Officer-in-Charge (OIC) of the former’s Loalde Ayala Boutique branch in Cebu City. Per internal control, the position of OIC is not allowed to handle cashiering except in emergency cases, which must have the prior approval of the management.  After conducting an audit of sales, petitioner concluded that respondent misappropriated the branch’s revenues which is a just cause for termination under Art. 282 of the Labor Code; and accordingly notified her of the termination of her services. Aside from the violations, there  were reports submitted by the cashiers that respondent meddles with the cash for deposit, and delaying such for more than three days. Respondent filed a complaint for illegal dismissal, illegal salary deductions, underpayment of wages, non-payment of 13 th  month pay, and damages. She averred that she was terminated from employment because she refused to sign a voucher acknowledging receipt of wage differentials, which she did not in fact receive. She also explained that the amounts were all deposits-in-transit, meaning, the bank had already picked-up the amounts but had not yet returned the validated deposit slips. Petitioner maintained that the respondent committed other irregularities in the past such as falsifying the signature of the bank tellers on deposit slips and meddling with the branch’s cashiering activities.   The Labor Arbiter dismissed the respondent’s complaint. NLRC upheld Labor Arbiter’s decision. Court o f Appeals concluded that respondent was illegally dismissed, reversed NLRC’s decision and ordered her reinstatement with full back wages and without loss of seniority rights. It found that respondent was denied due process in the course of the dismissal. ISSUE Whether or not the respondent was illegally dismissed RULING  On the merits, petitioner has shown just cause for the termination of respondent’s employment under Art. 282 of the Labor Code on the ground of “fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative”.  With the affidavits and the audit reports corroborated by the petitioner’s bank passbook, the Court finds that the respondent’s termination was for a  just cause. The Court finds, however, that the petitioner failed to observe the requirements of due process. The rules implementing Book VI of the Labor Code require the following in the termination of employment based on just causes as defined in Article 282 of the Labor Code:(i) A written notice on the employee specifying the ground or grounds for termination, and giving said employee reasonable opportunity to which to explain his side; (ii) A hearing or conference during which the employee concerned, with the assistance of counsel if he so desires is given opportunity to respond to the charge, present his evidence, or rebut the evidence presented against him, and (iii) A written notice of termination served on the employee, indicating that upon due consideration of all the circumstances, grounds have been established to justify his termination.  As the Court of Appeals correctly found, instead of complying with the two written notice requirement, petitioner, in one single notice, ordered respondent’s dismissal. For the first notice  requirement to be satisfied, it must inform the employee outright that an investigation will be conducted on the charges particularized therein which, if proven, will result to his dismissal. The Decision of the Court of Appeals is reversed; NLRC’s decision Reinstated with the modification that petitioner is ordered to pay respondents nominal damages.  457 Central Pangasinan Electric v Macaraeg 395 SCRA 720 (2003) Just Causes - Fraud FACTS De Vera was employed as teller and Geronima Macaraeg as cashier by Central Pangasinan Electric Cooperative Inc. They accommodated and encashed two hundred eleven crossed checks of Evelyn Joy Estrada (de Vera’s sister) payable to the cooperative despite the absence of any transaction or any outstanding obligation with it. They credited the checks as part of their collection and deposited the same together with their cash collection to the coop’s account at the Rural Bank of Central Pangasinan. The finance department noticed these checks which bounced (insufficient funds). De Vera and Macaraeg were confronted with the discovery. De Vera admitted that the checks were issued by her sister and that she encashed them from the money collected from petitioner’s customers. De Vera testified and admitted that she encashed the checks of Evelyn Joy Estrada because the latter is her older sister. Macaraeg admitted that she knew of the accommodations given by respondent de Vera to her sister; that she allowed her subordinate to  do it because respondent de Vera is her “kumare” , and that she knew that Mrs. Estrada’s ch ecks were sufficiently funded. On March 19, 1999, on the basis of the findings and recommendation of Atty. Fernandez (presided over the hearing), the General Manager issued to respondents separate notices of ter  mination for “serious misconduct, and breach of trust and confidence reposed on them by management.”  Respondents questioned their dismissal before the National Conciliation and Mediation Board (NCMB),claiming that their dismissal was without just cause and in violation of the Collective Bargaining Agreement (CBA), which requires that the case should first be to a voluntary arbitrator for arbitration. The Labor Arbiter ruled in favor of defendants and ordered their reinstatement. This was affirmed by the Court of Appeals. ISSUE  Whether or not the respondents were validly dismissed RULING YES, the respondents were validly dismissed. Article 282(c) of the Labor Code allows an employer to dismiss employees for willful breach of trust or loss of confidence. Proof beyond reasonable doubt of their misconduct is not required, it being sufficient that there is some basis for the same or that the employer has reasonable ground to believe that they are responsible for the misconduct and their participation therein rendered them unworthy of the trust and confidence demanded of their position. The acts of the respondents were clearly inimical to the financial interest of the petitioner. During the investigation, they admitted accommodating Evelyn Joy Estrada by encashing her checks from its funds for more than a year. They did so without petitioner’s knowledge, much less its permission. T here was willful breach of trust on the respondents’ part, as they took advantage of their highly sensitive positions to violate their duties. The acts of the respondents caused damage to the petitioner. During those times the checks were illegally encashed, petitioner was not able to fully utilize the collections, primarily in servicing its debts. I t is not material that they did not “m isappropriate any amount of money, nor incur any shortage relative to the funds in their possession.” The basic premise for dismissal on the ground of loss of confidence is that the employees concerned hold positions of trust. The betrayal of this trust is the essence of the offence for which an employee is penalized. The respondents held positions of utmost trust and confidence. As teller and cashier, respectively, they are expected to possess a high degree of fidelity. They are entrusted with a considerable amount of cash. Respondent de Vera accepted payments from petitioner’s consumers while respondent Macaraeg received remittances for deposit at petitioner’s bank.
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