Punzal vs. ETSI Technologies, Inc.

GR NO. 170384-85
MARCH 9 , 2007

FACTS:

Lorna Punzal , an employee of Etsi Technologies Inc. , sent an email to her officemates announcing
the holding of a Halloween party that was to be held in the office. However, the petitioner’s
immediate superior, Remudaro , advised Punzal to first secure for the approval of the Senior Vice
president , respondent Werner Geisert, for the holding of the party in the office. Punzal soon
learned that Geisert did not approve of the plan. Because of this, Punzal sent another email message
announcing that her plan was not approved by Geisert. Moreover, the petitioner also expressed her
disappointment in the same email particularly saying:

“He was so unfair , para bang palagi syang iniisahan sa trabaho . Bakit most of the
parents na magjoined ang anak ay naka VL naman . Anyway, solohin na lang nya bukas ang
office. “

The assistant vice president of human resources of ETSI, later informed Punzal , by letter , that
Geisert required her to explain in writing within 48 hours why she should not be given disciplinary
action for improper conduct or acts of discourtesy concerning a company officer. Punzal replied by
letter stating that she never expected that such kind of words can be considered as acts of
discourtesy or disrespect. The management considered her reason “unacceptable” and decided to
terminate Punzal immediately for violating Article III (8) and Article IV (5) of ETSI’s Code of Conduct
and Discipline.

Petitioner then filed before NLRC a complaint for illegal dismissal against ETSI , Geisert and
Remudaro. The petitioner alleged that she was deprived to be informed of her right to counsel
during the conference with Geisert and Remudaro. The Labor Arbiter dismissed petitioner’s
complaint, finding that she was legally dismissed for serious misconduct and that she was accorded
due process. The NLRC also ordered that petitioner be awarded separation pay. Both parties filed
their respective motions for reconsideration which the NLRC denied. Both parties thereupon filed
their respective petitions for certiorari with the CA. The CA held that petitioner’s dismissal was in
order. However, the petitioner believes that the appellate court erred when it ruled that her
statement was discourteous and that she was accorded due process, hence this case.
ISSUE :

1. Whether or not Punzal was validly terminated

RULING:

1. Yes. The Supreme Court held that the Court of Appeals correctly ruled that the message
from the petitioner resounds of subversion and undermines the authority of management
and that petitioner displayed a tendency to act without management’s approval and even
against management’s will and should . The petitioner’s conduct reflects an unwillingness to
comply with reasonable management derivatives. It is clear that in circulating the second
email message , petitioner violated Article III (8) and Article IV (5) of ETSI’s Code of Conduct
on making false or malicious statements concerning the company officers and improper
conduct or acts of discourtesy or disrespect to fellow employees , visitors, guests , clients , at
any time.

2. ETSI’s contention is untenable. It was held that the right to be informed of the right to
counsel can also be applied to investigations before administrative bodies. Under Article
277(b) of the Labor code , the employer shall afford the worker whose employment is
sought to be terminated , ample opportunity to be heard and defend himself with the
assistance of his representatives if he so desires in accordance with company rules and
regulations pursuant to guidelines set by DOLE . Since the petitioner’s statutory due process
right has been violated , she is entitled to an award of nominal damage .
 Republic of the Philippines
SUPREME COURT
Manila

SECOND DIVISION

G.R. Nos. 170384-85 March 9, 2007

LORNA DISING PUNZAL, Petitioner,

DECISION

CARPIO MORALES, J.:

Petitioner, Lorna Dising Punzal, had been working for respondent, ETSI Technologies, Inc.
(ETSI), for 12 years prior to the termination of her services on November 26, 2001 on which date
she was holding the position of Department Secretary.

On October 30, 2001, petitioner sent an electronic mail (e-mail) message to her officemates
announcing the holding of a Halloween party that was to be held in the office the following day.
The e-mail message read verbatim:

Dear ETSI-JMT Colleagues,

Good day!

As you all know, tomorrow is the day before HALLOWEEN. And many of our kids will go around
"TRICK OR TREATING". We will be dressing them up in costumes of all sorts, from cute to
outrageous, from wild to "scary."

What we want to have is a similar activity here in the office. So we invite you to participate in this
effort. You can also dress your kids up in funny costumes. Also the kids will then go around the
office Trick or Treating. So, we ask you to prepare your Treats, like candies, biscuits, cookies,
etc., (Cash is also welcome for parents like me . . . he he he)

Why are we doing this? Well, we just want the kids to have a good time. Kung gusto ninyo, mag-
costume din kayo.

Alright! See you tomorrow morning, [October 31, 2001].1 (Underscoring supplied)

Petitioner’s immediate superior, respondent Carmelo Remudaro (Remudaro), who was one of
those to whom the e-mail message was sent, advised petitioner to first secure the approval of the
Senior Vice President, respondent Werner Geisert (Geisert), for the holding of the party in the
office.

Petitioner soon learned that Geisert did not approve of the plan to hold a party in the office. She
thereupon sent also on October 30, 2001 another e-mail message to her officemates, reading
verbatim:

Sorry for the mail that I sent you, unfortunately the SVP of ETSI Technologies, Inc. did not agree
to our idea to bring our children in the office for the TRICK or TREATING. He was so
unfair…para bang palagi siyang iniisahan sa trabaho…bakit most of the parents na mag-joined
ang anak ay naka-VL naman. Anyway, solohin na lang niya bukas ang office.

Anyway, to those parents who would like to bring their Kids in Megamall there will be Trick or
Treating at Mc Donalds Megamall Bldg. A at 10:00 AM tomorrow and let’s not spoil the fun for
our kids.2 (Underscoring supplied)

Remudaro and Arnold Z. David (David), the Assistant Vice President of Human Resources/TQM
of ETSI, later informed petitioner, by letter of November 13, 2001, that Geisert got a copy of her
e-mail message and that he required her to explain in writing within 48 hours why she

. . . should not be given disciplinary action for committing Article IV, No. 5 & 8 Improper
conduct or acts of discourtesy or disrespect and Making malicious statements
concerning Company Officer, whereby such offenses may be subject to suspension to
termination depending upon the gravity of the offense/s as specified in our ETSI’s Code of
Conduct and Discipline.3 (Emphasis in the original)

Petitioner replied by letter of November 14, 2001 that she had no malicious intention in sending
the second e-mail message and that she "never expected such kind of words can be called as
‘acts of discourtesy or disrespect.’" 4

On November 19, 2001, Geisert and Remudaro conferred with petitioner to give her a chance to
explain her side.5

David and Remudaro subsequently sent petitioner a letter on November 26, 2001, finding her
explanation "not acceptable" and terminating her services, effective immediately, "for committing
Article IV, No[s]. 5 & 8, Improper conduct or act of discourtesy or disrespect and making
malicious statements concerning company officer."6

On February 11, 2002, petitioner filed before the National Labor Relations Commission (NLRC) a
complaint7 for illegal dismissal against ETSI, Geisert, and Remudaro.

By Order of November 26, 2002, the Labor Arbiter dismissed petitioner’s complaint, finding that
she was legally dismissed for serious misconduct, and that she was afforded due process.8

On petitioner’s appeal, the NLRC, by Resolution9 dated October 27, 2003, found that while she
was indeed guilty of misconduct, the penalty of dismissal was disproportionate to her
infraction.10 The NLRC thus ordered that petitioner was entitled to reinstatement which, however,
was no longer feasible due to strained relations. The NLRC thus ordered that petitioner be
awarded separation pay equivalent to one month pay for every year of service, a period of at
least six months to be considered one whole year.11

Noting that petitioner was not entirely faultless, the NLRC denied her prayer for backwages12 as
well as her prayer for exemplary and moral damages and attorney’s fees in the absence of the
legal conditions justifying their award.13

Both parties filed their respective motions for reconsideration14 which the NLRC denied.15 Both
parties thereupon filed their respective petitions for certiorari16 with the Court of Appeals.

In the petition of petitioner, docketed as CA-G.R. SP No. 83296, she questioned the denial of her
prayer for backwages.17 Upon the other hand, in the petition of respondent ETSI, et al., docketed
as CA-G.R. SP No. 83205, they questioned the finding of illegal dismissal, the grant of
separation pay, and the imputation of liability to Geisert and Remudaro.18
In her comment to the petition of ETSI, et al. in CA-G.R. SP No. 83205, petitioner raised the
issue of due process, alleging that her employer did not inform her of her right to be assisted by
counsel during the conference with respondents Geisert and Remudaro.19

By Decision20 of May 13, 2005, the Court of Appeals, which priorly consolidated the petitions of
both parties, held that petitioner’s dismissal was in order:21

The gravity of Punzal’s infraction is borne by the fact that her e-mail message to the workers of
ETSI tended to cast scorn and disrespect toward a senior vice president of the company. The
message itself resounds of subversion and undermines the authority and credibility of
management.

xxxx

Also, this message was not a mere expression of dissatisfaction privately made by one person to
another, but was circulated to everyone in the work area. The message was sent close at the
heels of SVP Geisert’s disapproval of Punzal’s plan to hold a Halloween affair in the office,
because the said event would disrupt the operations and peace and order in the office. Punzal
therefore displayed a tendency to act without management’s approval, and even against
management’s will, as she invited her co-workers to join a trick or treating activity at another
venue during office hours.

The message also comes across as an encouragement to ignore SVP Geisert’s authority, and
portrayed him as unworthy of respect because of his unpopular personality.

This is in clear violation of Article IV, Section 5 of the company’s Code of Conduct and Discipline,
which clearly imposes the penalty of "suspension to dismissal, depending upon the gravity of the
offense" in cases where an employee displays "improper conduct or acts of discourtesy or
disrespect to fellow employees, visitors, guests, clients, at any time."

The imposition of the penalty of dismissal is proper, because of the gravity of Punzal’s
misconduct, as earlier pointed out, and considering that:

(1) Punzal’s statements were discourteous and disrespectful not only to a mere co-
employee, but to a high ranking executive official of the company;

(2) Punzal’s statements tended to ridicule and undermine the credibility and authority of
SVP Geisert, and even encouraged disobedience to the said officer;

(3) Punzal’s message was sent to a great number of employees of ETSI, which tended to
sow dissent and disrespect to management among a great number of employees of
ETSI;

(4) Punzal’s message could not have been made in good faith, because the message
itself used language that placed SVP Geisert in ridicule and portrayed him as an object of
scorn, betraying the sender’s bad faith.

Given these circumstances, the fact that Punzal’s infraction occurred only once should be largely
insignificant. The gravity and publicity of the offense as well as its adverse impact in the
workplace is more than sufficient to place the same in the level of a serious
misconduct.22 (Underscoring supplied)

Contrary to petitioner’s contention, the Court of Appeals also found that due process was
observed in her dismissal.23
The Court of Appeals thus reinstated the Labor Arbiter’s Order. Thus it disposed:

WHEREFORE, premises considered, the petition filed by Lorna Dising Punzal in CA-G.R. SP No.
83296 is hereby DISMISSED, while the petition filed by ETSI, Werner Geisert and Carmelo D.
Remudaro is hereby GRANTED. The assailed Resolutions, dated October 27, 2003 and January
28, 2004, of the respondent National Labor Relations Commission are hereby SET ASIDE. In
lieu thereof, the Decision of Labor Arbiter Joel S. Lustria, dated November 26, 2002, dismissing
the complaint filed by Lorna Dising Punzal is hereby REINSTATED.

SO ORDERED.24 (Underscoring supplied)

Hence, petitioner’s present Petition for Review on Certiorari,25 faulting the appellate court to have
erred

. . . WHEN IT RULED THAT PETITIONER’S STATEMENT WAS DISCOURTEOUS AND

. . . WHEN IT FOUND THAT DUE PROCESS WAS ACCORDED THE PETITIONER;

. . . WHEN IT FAILED TO AWARD THE PETITIONER HER RIGHT TO

Petitioner posits that her second e-mail message was merely an exercise of her right to freedom
of expression without any malice on her part.27

On the other hand, ETSI, et al. maintain that petitioner’s second e-mail message was tainted with
bad faith and constituted a grave violation of the company’s code of discipline.28

In Philippines Today, Inc. v. NLRC,29 this Court, passing on the attitude or respect that an
employee is expected to observe towards an employer, held:

Alegre’s choice of words and way of expression betray his allegation that the memorandum was
simply an "opportunity to open the eyes of (Petitioner) Belmonte to the work environment in
petitioner’s newspaper with the end in view of persuading (her) to take a hand at improving said
environment." Apprising his employer (or top-level management) of his frustrations in his job and
differences with his immediate superior is certainly not done in an abrasive, offensive, and
disrespectful manner. A cordial or, at the very least, civil attitude, according due deference to
one’s superiors, is still observed, especially among high-ranking management officers. The Court
takes judicial notice of the Filipino values of pakikisama and paggalang which are not only
prevalent among members of a family and community but within organizations as well, including
work sites. An employee is expected to extend due respect to management, the employer being
the "proverbial hen that lays the golden egg," so to speak. An aggrieved employee who wants to
unburden himself of his disappointments and frustrations in his job or relations with his
immediate superior would normally approach said superior directly or otherwise ask some other
officer possibly to mediate and discuss the problem with the end in view of settling their
differences without causing ferocious conflicts. No matter how [much] the employee dislikes the
employer professionally, and even if he is in a confrontational disposition, he cannot afford to be
disrespectful and dare to talk with an unguarded tongue and/or with a bileful pen.30 (Underscoring
supplied)

A scrutiny of petitioner’s second e-mail message shows that her remarks were not merely an
expression of her opinion about Geisert’s decision; they were directed against Geisert himself,
viz: "He was so unfair . . . para bang palagi siyang iniisahan sa trabaho. . . Anyway, solohin
na lang niya bukas ang office." (Emphasis supplied)31
As the Court of Appeals noted, petitioner, in her closing statement – "Anyway, to those parents
who would like to bring their Kids in Megamall there will be Trick or Treating at Mc Donalds x x x
tomorrow and let’s not spoil the fun for our kids"32 – even invited her co-workers to join a trick or
treating activity at another venue during office hours33(10:00 AM), October 31, 2001 being a
Wednesday and there is no showing that it was declared a holiday, encouraging them to ignore
Geisert’s authority.

Additionally, petitioner sent the e-mail message in reaction to Geisert’s decision which he had all
the right to make. That it has been a tradition in ETSI to celebrate occasions such as Christmas,
birthdays, Halloween, and others34does not remove Geisert’s prerogative to approve or
disapprove plans to hold such celebrations in office premises and during company time. It is
settled that

x x x it is the prerogative of management to regulate, according to its discretion and judgment, all
aspects of employment. This flows from the established rule that labor law does not authorize the
substitution of the judgment of the employer in the conduct of its business. Such management
prerogative may be availed of without fear of any liability so long as it is exercised in good faith
for the advancement of the employers’ interest and not for the purpose of defeating or
circumventing the rights of employees under special laws or valid agreement and are not
exercised in a malicious, harsh, oppressive, vindictive or wanton manner or out of malice or
spite.35 (Underscoring supplied)

In the case at bar, the disapproval of the plan to hold the Halloween party on October 31, 2001
may not be considered to have been actuated by bad faith. As the Labor Arbiter noted:

It may not be ignored that holding a trick or treat party in the office premises of respondent ETSI
would certainly affect the operations of the office, since children will be freely roaming around the
office premises, things may get misplaced and the noise in the office will simply be too hard to
ignore. Contrary to complainant’s position, it is immaterial if the parents of the children who will
participate in the trick or treat will be on vacation leave, since it is the work of the employees who
will not be on leave and who will be working on that day which will be disrupted, possibly
resulting in the disruption of the operations of the company.36 (Underscoring supplied)

Given the reasonableness of Geisert’s decision that provoked petitioner to send the second e-
mail message, the observations of the Court of Appeals that "the message x x x resounds of
subversion and undermines the authority and credibility of management"37 and that petitioner
"displayed a tendency to act without management’s approval, and even against management’s
will" are well taken.38

Moreover, in circulating the second e-mail message, petitioner violated Articles III (8) and IV (5)
of ETSI’s Code of Conduct on "making false or malicious statements concerning the Company,
its officers and employees or its products and services"39 and "improper conduct or acts of
discourtesy or disrespect to fellow employees, visitors, guests, clients, at any time."40

Petitioner invokes Samson v. National Labor Relations Commission41 where this Court held that
the dismissal of the therein petitioner was too harsh a penalty for uttering "Si EDT [Epitacio D.
Titong, the General Manager and President of the employer], bullshit yan," "sabihin mo kay EDT
yan" and "sabihin mo kay EDT, bullshit yan," while making the "dirty finger" gesture, and warning
that the forthcoming national sales conference of the company would be a "very bloody one."

Petitioner’s reliance on Samson is misplaced. First, in that case, this Court found that the
misconduct committed was not related with the employee’s work as the offensive remarks were
verbally made during an informal Christmas gathering of the employees, an occasion "where
tongues are more often than not loosened by liquor or other alcoholic beverages"42 and "it is to
be expected x x x that employees freely express their grievances and gripes against their
employers."43
In petitioner’s case, her assailed conduct was related to her work. It reflects an unwillingness to
comply with reasonable management directives.

While in Samson, Samson was held to be merely expressing his dissatisfaction over a
management decision,44 in this case, as earlier shown, petitioner’s offensive remarks were
directed against Geisert.

Additionally, in Samson, this Court found that unlike in Autobus Workers’ Union (AWU) v.
NLRC45 where dismissal was held to be an appropriate penalty for uttering insulting remarks to
the supervisor,46 Samson uttered the insulting words against EDT in the latter’s absence.47 In the
case at bar, while petitioner did not address her e-mail message to Geisert, she circulated it
knowing – or at least, with reason to know – that it would reach him. As ETSI notes, "[t]hat
[petitioner] circulated this e-mail message with the knowledge that it would reach the eyes of
management may be reasonably concluded given that the first e-mail message reached her
immediate supervisor’s attention."48

Finally, in Samson, this Court found that the "lack of urgency on the part of the respondent
company in taking any disciplinary action against [the employee] negates its charge that the
latter’s misbehavior constituted serious misconduct."49 In the case at bar, the management acted
14 days after petitioner circulated the quoted e-mail message.50

Petitioner asks that her 12 years of service to ETSI during which, so she claims, she committed
no other offense be taken as a mitigating circumstance.51 This Court has held, however, that "the
longer an employee stays in the service of the company, the greater is his responsibility for
knowledge and compliance with the norms of conduct and the code of discipline in the
company."52

In fine, petitioner, having been dismissed for just cause, is neither entitled to reinstatement nor to
backwages.

Petitioner’s contention that she was denied due process is well-taken however, as the records do
not show that she was informed of her right to be represented by counsel during the conference
with Geisert and Remudaro.

The protestations of ETSI, et al. that the right to be informed of the right to counsel does not
apply to investigations before administrative bodies and that law and jurisprudence merely give
the employee the option to secure the services of counsel in a hearing or conference53 fall in light
of the clear provision of Article 277 (b) of the Labor Code that

the employer xxx shall afford [the worker whose employment is sought to be terminated] ample
opportunity to be heard and to defend himself with the assistance of his representatives if he so
desires in accordance with company rules and regulations pursuant to guidelines set by the
Department of Labor and Employment,

and this Court’s explicit pronouncement that "[a]mple opportunity connotes every kind of
assistance that management must accord the employee to enable him to prepare adequately for
his defense including legal representation."54

Following Agabon, et al. v. National Labor Relations Commission,55 the violation of petitioner’s
statutory due process right entitles her to an award of nominal damage, which this Court fixes at
₱30,000.56

WHEREFORE, the petition is in part GRANTED. The questioned decision is AFFIRMED with
the MODIFICATIONthat respondent ETSI Technologies, Inc. is ordered to pay petitioner, Lorna
Punzal, nominal damages in the amount of ₱30,000.
SO ORDERED.

CONCHITA CARPIO MORALES

WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

ANTONIO T. CARPIO DANTE O. TINGA

PRESBITERO J. VELASCO, JR.

ATTESTATION

I attest that the conclusions in the above Decision were reached in consultation before the case
was assigned to the writer of the opinion of the Court’s Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution, and the Division Chairperson’s Attestation,
it is hereby certified that the conclusions in the above Decision were reached in consultation
before the case was assigned to the writer of the opinion of the Court.

REYNATO S. PUNO
Chief Justice