EN BANC

[G.R. No. 192571. April 22, 2014.]

ABBOTT LABORATORIES, PHILIPPINES, CECILLE A.

TERRIBLE, EDWIN D. FEIST, MARIA OLIVIA T. YABUT-MISA,
TERESITA C. BERNARDO, AND ALLAN G. ALMAZAR,
petitioners, vs. PEARLIE ANN F. ALCARAZ, respondent.

RESOLUTION

PERLAS-BERNABE, J : p

For resolution is respondent Pearlie Ann Alcaraz's (Alcaraz) Motion for

Reconsideration dated August 23, 2013 of the Court's Decision dated July 23,
2013 (Decision). 1
At the outset, there appears to be no substantial argument in the said
motion sufficient for the Court to depart from the pronouncements made in
the initial ruling. But if only to address Alcaraz's novel assertions, and to so
placate any doubt or misconception in the resolution of this case, the Court
proceeds to shed light on the matters indicated below.
A. Manner of review.
Alcaraz contends that the Court should not have conducted a re-
weighing of evidence since a petition for review on certiorari under Rule 45
of the Rules of Court (Rules) is limited to the review of questions of law. She
submits that since what was under review was a ruling of the Court of
Appeals (CA) rendered via a petition for certiorari under Rule 65 of the Rules,
the Court should only determine whether or not the CA properly determined
that the National Labor Relations Commission (NLRC) committed a grave
abuse of discretion. EIDaAH

The assertion does not justify the reconsideration of the assailed

Decision.
A careful perusal of the questioned Decision will reveal that the Court
actually resolved the controversy under the above-stated framework of
analysis. Essentially, the Court found the CA to have committed an error in
holding that no grave abuse of discretion can be ascribed to the NLRC since
the latter arbitrarily disregarded the legal implication of the attendant
circumstances in this case which should have simply resulted in the finding
that Alcaraz was apprised of the performance standards for her
regularization and hence, was properly a probationary employee. As the
Court observed, an employee's failure to perform the duties and
responsibilities which have been clearly made known to him constitutes a
justifiable basis for a probationary employee's non-regularization. As
detailed in the Decision, Alcaraz was well-apprised of her duties and
responsibilities as well as the probationary status of her employment:
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 (a) On June 27, 2004, [Abbott Laboratories, Philippines (Abbott)]
caused the publication in a major broadsheet newspaper of its need for
a Regulatory Affairs Manager, indicating therein the job description for
as well as the duties and responsibilities attendant to the aforesaid
position; this prompted Alcaraz to submit her application to Abbott on
October 4, 2004;
(b) In Abbott's December 7, 2004 offer sheet, it was stated that
Alcaraz was to be employed on a probationary status;
(c) On February 12, 2005, Alcaraz signed an employment
contract which specifically stated, inter alia, that she was to be placed
on probation for a period of six (6) months beginning February 15,
2005 to August 14, 2005;
(d) On the day Alcaraz accepted Abbott's employment offer,
Bernardo sent her copies of Abbott's organizational structure and her
job description through e-mail;
(e) Alcaraz was made to undergo a pre-employment orientation
where [Allan G. Almazar] informed her that she had to implement
Abbott's Code of Conduct and office policies on human resources and
finance and that she would be reporting directly to [Kelly Walsh];
(f) Alcaraz was also required to undergo a training program as
part of her orientation;
(g) Alcaraz received copies of Abbott's Code of Conduct and
Performance Modules from [Maria Olivia T. Yabut-Misa] who explained
to her the procedure for evaluating the performance of probationary
employees; she was further notified that Abbott had only one
evaluation system for all of its employees; and
(h) Moreover, Alcaraz had previously worked for another
pharmaceutical company and had admitted to have an "extensive
training and background" to acquire the necessary skills for her job. 2
Considering the foregoing incidents which were readily observable
from the records, the Court reached the conclusion that the NLRC committed
grave abuse of discretion, viz.: dctai

[I]n holding that Alcaraz was illegally dismissed due to her status
as a regular and not a probationary employee, the Court finds that the
NLRC committed a grave abuse of discretion.
To elucidate, records show that the NLRC based its decision on
the premise that Alcaraz's receipt of her job description and Abbott's
Code of Conduct and Performance Modules was not equivalent to being
actually informed of the performance standards upon which she should
have been evaluated on. It, however, overlooked the legal implication
of the other attendant circumstances as detailed herein which should
have warranted a contrary finding that Alcaraz was indeed a
probationary and not a regular employee — more particularly the fact
that she was well-aware of her duties and responsibilities and that her
failure to adequately perform the same would lead to her non-
regularization and eventually, her termination. 3
Consequently, since the CA found that the NLRC did not commit grave
abuse of discretion and denied the certiorari petition before it, the reversal of
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 its ruling was thus in order.
At this juncture, it bears exposition that while NLRC decisions are, by
their nature, final and executory 4 and, hence, not subject to appellate
review, 5 the Court is not precluded from considering other questions of law
aside from the CA's finding on the NLRC's grave abuse of discretion. While
the focal point of analysis revolves on this issue, the Court may deal with
ancillary issues — such as, in this case, the question of how a probationary
employee is deemed to have been informed of the standards of his
regularization — if only to determine if the concepts and principles of labor
law were correctly applied or misapplied by the NLRC in its decision. In other
words, the Court's analysis of the NLRC's interpretation of the environmental
principles and concepts of labor law is not completely prohibited in — as it is
complementary to — a Rule 45 review of labor cases.
Finally, if only to put to rest Alcaraz's misgivings on the manner in
which this case was reviewed, it bears pointing out that no "factual appellate
review" was conducted by the Court in the Decision. Rather, the Court
proceeded to interpret the relevant rules on probationary employment as
applied to settled factual findings. Besides, even on the assumption that a
scrutiny of facts was undertaken, the Court is not altogether barred from
conducting the same. This was explained in the case of Career Philippines
Shipmanagement, Inc. v. Serna 6 wherein the Court held as follows: DcaSIH

Accordingly, we do not re-examine conflicting evidence, re-

evaluate the credibility of witnesses, or substitute the findings of fact of
the NLRC, an administrative body that has expertise in its specialized
field. Nor do we substitute our "own judgment for that of the tribunal in
determining where the weight of evidence lies or what evidence is
credible." The factual findings of the NLRC, when affirmed by the CA,
are generally conclusive on this Court.
Nevertheless, there are exceptional cases where we, in
the exercise of our discretionary appellate jurisdiction may be
urged to look into factual issues raised in a Rule 45 petition.
For instance, when the petitioner persuasively alleges that there is
insufficient or insubstantial evidence on record to support the factual
findings of the tribunal or court a quo, as Section 5, Rule 133 of the
Rules of Court states in express terms that in cases filed before
administrative or quasi-judicial bodies, a fact may be deemed
established only if supported by substantial evidence. 7 (Emphasis
supplied)
B. Standards for regularization;
conceptual underpinnings.
Alcaraz posits that, contrary to the Court's Decision, one's job
description cannot by and of itself be treated as a standard for regularization
as a standard denotes a measure of quantity or quality. By way of example,
Alcaraz cites the case of a probationary salesperson and asks how does such
employee achieve regular status if he does not know how much he needs to
sell to reach the same.
The argument is untenable.
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 First off, the Court must correct Alcaraz's mistaken notion: it is not the
probationary employee's job description but the adequate performance of
his duties and responsibilities which constitutes the inherent and implied
standard for regularization. To echo the fundamental point of the Decision, 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 to pass the
probationary trial and may therefore be subject to termination. 8 HATEDC

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 an 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 — such
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 — to name a few —
lawyers, 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.
cASIED

In this relation, it bears mentioning that the performance standard

contemplated by law should not, in all cases, be contained in a specialized
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 system of feedbacks or evaluation. The Court takes judicial notice of the fact
that not all employers, such as simple businesses or small-scale enterprises,
have a sophisticated form of human resource management, so much so that
the adoption of technical indicators as utilized through "comment cards" or
"appraisal" tools should not be treated as a prerequisite for every case of
probationary engagement. In fact, even if a system of such kind is employed
and the procedures for its implementation are not followed, once an
employer determines that the probationary employee fails to meet the
standards required for his regularization, the former is not precluded from
dismissing the latter. The rule is that when a valid cause for termination
exists, the procedural infirmity attending the termination only warrants the
payment of nominal damages. This was the principle laid down in the
landmark cases of Agabon v. NLRC 9 (Agabon) and Jaka Food Processing
Corporation v. Pacot 10 (Jaka). In the assailed Decision, the Court actually
extended the application of the Agabon and Jaka rulings to breaches of
company procedure, notwithstanding the employer's compliance with the
statutory requirements under the Labor Code. 11 Hence, although Abbott did
not comply with its own termination procedure, its non-compliance thereof
would not detract from the finding that there subsists a valid cause to
terminate Alcaraz's employment. Abbott, however, was penalized for its
contractual breach and thereby ordered to pay nominal damages.

As a final point, Alcaraz cannot take refuge in Aliling v. Feliciano 12

(Aliling) since the same is not squarely applicable to the case at bar. The
employee in Aliling, a sales executive, was belatedly informed of his quota
requirement. Thus, considering the nature of his position, the fact that he
was not informed of his sales quota at the time of his engagement changed
the complexion of his employment. Contrarily, the nature of Alcaraz's duties
and responsibilities as Regulatory Affairs Manager negates the application of
the foregoing. Records show that Alcaraz was terminated because she (a)
did not manage her time effectively; (b) failed to gain the trust of her staff
and to build an effective rapport with them; (c) failed to train her staff
effectively; and (d) was not able to obtain the knowledge and ability to make
sound judgments on case processing and article review which were
necessary for the proper performance of her duties. 13 Due to the nature and
variety of these managerial functions, the best that Abbott could have done,
at the time of Alcaraz's engagement, was to inform her of her duties and
responsibilities, the adequate performance of which, to repeat, is an inherent
and implied standard for regularization; this is unlike the circumstance in
Aliling where a quantitative regularization standard, in the term of a sales
quota, was readily articulable to the employee at the outset. Hence, since
the reasonableness of Alcaraz's assessment clearly appears from the
records, her termination was justified. Bear in mind that the quantum of
proof which the employer must discharge is only substantial evidence which,
as defined in case law, means that amount of relevant evidence as a
reasonable mind might accept as adequate to support a conclusion, even if
other minds, equally reasonable, might conceivably opine otherwise. 14 To
the Court's mind, this threshold of evidence Abbott amply overcame in this
case. EHIcaT

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 All told, the Court hereby denies the instant motion for reconsideration
and thereby upholds the Decision in the main case.
WHEREFORE, the motion for reconsideration dated August 23, 2013 of
the Court's Decision dated July 23, 2013 in this case is hereby DENIED.
SO ORDERED.
Sereno, C.J., Carpio, Velasco, Jr., Leonardo-de Castro, Peralta,
Bersamin, Del Castillo, Abad, Villarama, Jr., Perez, Mendoza and Reyes, JJ.,
concur.
Brion, J., see: my dissent.
Leonen, J., I join the dissent of J. Brion.

Separate Opinions
BRION, J., dissenting:
Before the Court are respondent Pearlie Ann Alcaraz's motion for
reconsideration of the Court's July 23, 2013 Decision, and petitioners Abbott
Laboratories, Phils. (Abbott), Cecille Terrible, Edwin Feist, Maria Olivia Yabut-
Misa, Teresita Bernardo, and Allan Almazar's comment thereon. I submit this
Dissenting Opinion to grant the present motion for reconsideration and to
maintain my view that the petitioners' earlier petition for review lacked merit
and should have been denied by the Court. CaEATI

THE MOTION FOR RECONSIDERATION

In her motion for reconsideration, Alcaraz alleges that the Court
engaged in judicial legislation when it equated Alcaraz's job description and,
in the process, enumerated the circumstances showing when and how the
petitioners conveyed Alcaraz's duties and responsibilities to her to the
reasonable standards for regularization required by the Labor Code. She
argues that "one's job description cannot by itself be considered the
standard for regularization" 1 because a "standard denotes a
measure of quantity or quality." 2 In so doing, the Court acted contrary
to the principles of social justice and protection to labor.
Alcaraz further claims that the Court erred in considering her dismissal
on the third month of her probationary employment to be a mere due
process violation that only warrants an award of nominal damages. In
support, Alcaraz cites Abbott's own rules under which Abbott must evaluate
Alcaraz's performance on the third and fifth months of the probationary
period; if Abbott finds Alcaraz to be underperforming on the third month,
Abbott should come up with a performance improvement plan (PEP). Only
upon her failure to meet this PEP that Abbott may end her probationary
employment.
Alcaraz also points out that Abbott failed to abide by its own rules and
immediately dismissed Alcaraz, without any just cause under Article 281 of
the Labor Code to support its action. Without a just cause, the dismissal is
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 illegal and entitles her to reinstatement and backwages. IcHTED

Lastly, even assuming that Abbott can terminate Alcaraz at any time
for failure to qualify for regularization, it is clear that Abbott "merely feigned
its dissatisfaction" 3 of Alcaraz's job performance as shown by the high-
handed manner Abbott used in implementing her dismissal.
THE COMMENT
In their Comment, the petitioners maintained the correctness of the
Court's ruling on both procedural and substantive grounds.
Abbott argues that the Court correctly proceeded as it did in evaluating
the facts and evidence in deciding the case. While the Court does not
normally embark on the re-examination of the evidence presented by the
parties, it may do so when, among others: (i) the findings are grounded
entirely on speculation, surmises or conjectures; (ii) the judgment is based
on misapprehension of facts; (iii) the findings of fact are conflicting; (iv)
when the findings are contrary to the trial court; and (v) the Court of Appeals
(CA) manifestly overlooked certain relevant facts not disputed by the parties
which, if properly considered, would justify a different conclusion. In the
present case, all these instances are present.
The probationary nature of Alcaraz's employment is clear from the
evidence and should be respected. In fact, in her reply-letter to Abbott,
Alcaraz even asked that the probationary period of six months be reduced to
three months since "Abbott can already determine if [she] is fit for the
position." 4 Her statement does not only show her knowledge of the nature of
her employment but proves her acknowledgment that there were standards
to be met and that the company will evaluate her compliance with these
standards.
The petitioners posit that this same statement belies Alcaraz's claim
that she was not informed of these standards. 5 In fact, Alcaraz herself
admitted that "Abbott has only one evaluation system for all types of
employees in the organization." 6 She knew that she had to undergo the
Probationary Performance Standards Evaluation (PPSE) (based on the duties
and responsibilities of her position, i.e., her job description) to document her
performance during the probationary period and to serve as basis in
recommending her regularization or termination.
The petitioners also note that in signing her appointment paper,
Alcaraz agreed "to abide by all existing policies, rules and regulations of the
company, a well as those, which may hereinafter be promulgated." 7 All
these taken together comply with the legal requirement that the
probationary employee be informed of the reasonable standards at the time
of her engagement.
Citing Alcira v. NLRC, 8 the petitioners claim that they "substantially
complied" with the notification requirement since they informed Alcaraz of
the PPSE; it is only natural that the evaluation should be made vis-à-vis the
performance standards for the job.
DISCUSSION
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 A. Procedural Objection
I shall first address the petitioners' claim that the Court can normally
undertake a review of the facts and evidence under a Rule 45 petition, citing
the numerous exceptions to what is otherwise claimed as the general rule. In
doing so, I reiterate my position in my earlier Dissent, with added arguments
to specifically address the petitioners' claim and the ponencia's present
explanation. HECaTD

A1. The Rule 65 petition and Montoya v.

Transmed
When a labor case reaches the judicial system, courts must proceed
based on6 two basic premises:first, the ruling of the National Labor
Relations Commission (NLRC) is declared by law to be a final ruling that is no
longer appealable; and second, the only remedy left to set aside or modify
this ruling is through a Rule 65 review by the CA that is narrowly grounded
on jurisdictional errors — i.e., whether the NLRC acted without or in excess
of its jurisdiction, or with grave abuse of discretion amounting to lack or
excess of jurisdiction.
Once the CA decision reaches the Court under a Rule 45 petition for
review on certiorari, from what prism does the Court examine the CA
decision? Note that Rule 45 of the Rules of Court limits the scope of the
petition to "pure questions of law." 9 This review is not a matter of right but
of sound judicial discretion. Obviously, the sound judicial discretion
requirement is meant to limit what could otherwise be an unlimited exercise
of discretion by the Highest Court to lay open and review the whole case,
both as to fact and law. CIcTAE

Montoya v. Transmed Manila Corporation 10 instructs us that in a Rule

45 review (of the CA decision rendered under Rule 65), the question of law
that confronts the Court is the legal correctness of the CA decision —
i.e., whether the CA correctly determined the presence or absence of grave
abuse of discretion in the NLRC decision before it, and not on the basis of
whether the NLRC decision on the merits of the case was correct. As
applied in the present case, the Court should simply determine the
legal correctness of the CA's finding that the NLRC ruling had basis
in fact and law, not the question of whether it was or was not correct. I
clearly stated these in my Dissenting Opinion, as follows:
Specifically, in reviewing a CA labor ruling under Rule 45 of the
Rules of Court, the Court's review is limited to:
(1) Ascertaining the correctness of the CA's decision in
finding the presence or absence of a grave abuse of discretion.
This is done by examining, on the basis of the parties' presentations,
whether the CA correctly determined that at the NLRC level, all the
adduced pieces of evidence were considered; no evidence which
should not have been considered was considered; and the evidence
presented supports the NLRC findings; and
(2) Deciding any other jurisdictional error that attended the
CA's interpretation or application of the law. 11
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 While these two questions should sufficiently delimit the narrow scope
of review under Rule 65, nonetheless, the petitioners submit that factual
review is appropriate under the numerous exceptions cited in a case where
the decisions of the trial court and the appellate court were brought on
appeal to the Supreme Court. Notably, jurisprudence has even extended the
application of these numerous exceptions to the decisions rendered by the
labor tribunals and the CA.
In other words, based on these exceptions, the existence of a conflict
in the factual findings and/or conclusions at any stage of the case, from the
labor arbiter (LA) to the CA, renders it open for the Court to conduct a factual
review that is deemed necessary in deciding the case. ASHaDT

This approach obviously considers the Rule 65 petition route to the CA

(instead of this Court) only in light of the doctrine of hierarchy of court
and disregards the final and unappealable character of the NLRC
decision. If a court's certiorari jurisdiction has a limited scope and breadth,
the Court, under a Rule 45 petition for review (of the CA decision), could not
have a more expanded jurisdiction than what Rule 45 expressly provides,
i.e., that the issue is limited to pure questions of law.
Too, this approach has resulted in turning the rule (that factual
findings of labor tribunals are binding on the Court) into an
exception — the Court effectively becomes a trier of facts — and
vice versa. Notably, when one traces in jurisprudence the justification for
the exception, it will invariably point to cases where the Supreme Court
departed from the rule — that the jurisdiction of the Court in cases brought
to it from the CA is limited to the review of errors of law, as the factual
findings of the lower courts are deemed conclusive — when, among others,
the findings of facts b y the trial court and the appellate court are
conflicting. 12
The indiscriminate adoption of this remedial law principle into labor
cases stands on shaky legal grounds. To begin with, certiorari is different
from appeal. In an appellate proceeding, the original suit is continued on
appeal. In a certiorari proceeding, the certiorari petition is an original and
independent action that was not part of the trial that had resulted in the
rendition of the judgment or order complained of. "[T]he higher court uses
its original jurisdiction in accordance with its power of control and
supervision over the proceedings of lower courts." 13
Put more bluntly, when the Court undertakes a review of the
factual findings made by the lower courts, it does so on the premise
that the recourse to the CA is part of the appellate process
authorized by law. Hence, when the trier of facts at the trial and appellate
level reach divergent factual findings, even if the same pieces of evidence
are before them, the Court, in the exercise of its sound discretion, sets aside
the rule that only questions of law may be raised under a Rule 45 petition in
order to arrive at a correct and just decision. The same situation does not
apply in labor cases because statutory law does not provide for an
appellate process beyond the NLRC, and thus, the mere existence
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 of a conflict in the factual findings at any stage of the proceedings
does not by itself warrant the Court to undertake an independent
review.
A2. The question of how a probationary
employee "is deemed to have been
informed of the standards of his
regularization" may be a question of law,
but not from the prism of a decision
rendered under Rule 65
According to the ponencia, the Court may consider "other questions of
law aside from the CA's finding on the NLRC's grave abuse of discretion." In
the present case, this other question of law or "ancillary issue" is the
"question of how a probationary employee is deemed to have been informed
of the standards of regularization." To the ponencia, this consideration is
necessary "if only to determine if the concepts and principles of labor law
were correctly applied or misapplied by the NLRC in its decision." SECIcT

I strongly disagree with the ponencia's reasoning for two reasons:

First, the ponencia unmistakably validates the very objection I raised in
my earlier Dissenting Opinion that there were in fact no communication
standards expressly communicated to Alcaraz; the Court, through the
Decision under review, simply attempted to supply this fatal omission via an
assumption and disjointed implication. I reiterate the following points in my
earlier Dissent:
The ponencia's reasoning, however, is badly flawed.
1st. The law and the rules require that these performance
standards be communicated at the time of engagement to the
probationary employee. The performance standards to be met are the
employer's specific expectations of how the probationary employee
should perform. The ponencia impliedly admits that no performance
standards where expressly given but argues that because [Alcaraz]
had been informed of her duties and responsibilities (a fact that was
and is not disputed), she should be deemed to know what was
expected of her for purposes of regularization. This is a major flaw that
the ponencia satisfies only via an assumption. The ponencia apparently
forgets that knowledge of duties and responsibilities is different from
the measure of how these duties and responsibilities should be
delivered. They are separate elements and the latter element is
missing in the present case. DHSaCA

xxx xxx xxx

4th. The ponencia also forgets that these "performance
standards" or measures cannot simply be assumed because they are
critically important in this case, or for that matter, in any case involving
jobs whose duties and responsibilities are not simple or self-descriptive.
If [Alcaraz] had been evaluated or assessed in the manner that the
company's internal rules require, these standards would have been the
basis for her performance or lack of it. Last but not the least,
[Alcaraz's] services were terminated on the basis of the performance
standards that, by law, the employer set or prescribed at the time of
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 the employer's engagement. If none had been prescribed in the first
place, under what basis could the employee then be assessed for
purposes of termination or regularization?
Second, in considering the "ancillary issue" as a proper subject of a
Rule 45 petition for review on certiorari of a ruling rendered under a Rule 65
petition, the ponencia apparently fails to distinguish the difference between
errors of law and errors of jurisdiction in an attempt to justify its decision
that is based solely on assumptions.
Error of jurisdiction is one where the act complained of was issued by
the court without or in excess of jurisdiction. This is the province of the writ
of certiorari. The writ of certiorari will not be issued to cure errors in
the appreciation of the evidence of the parties, and its conclusions
anchored on the said findings and its conclusions of law . If the CA
finds that the NLRC committed no error of jurisdiction, the Court's task is to
only determine the legal correctness of this CA finding — and not to supplant
the NLRC and the CA's conclusion with what the Court thinks should be the
correct interpretation of the law, in utter disregard of the different levels of
review the case underwent. If the Court will undertake a review of the
"ancillary issues" suggested by the ponencia, the Court will in effect
create a right of appeal from the NLRC ruling when the law confers
none. IDATCE

Too, a Rule 65 petition requires the presence of grave abuse of

discretion — and not mere abuse of discretion — before courts may issue the
corrective writ of certiorari in labor cases not only because the ruling under
review is already final; but, more importantly, because the appreciation of
the evidence and its legal effects carries with it discretion within the bounds
of the law. The discretion granted to the NLRC to affirm or reverse the LA, on
one hand, and the discretion granted to the CA to determine whether grave
abuse of discretion attended the NLRC's ruling, on the other hand, are
discretions within legal bounds that the Court cannot supplant at will, much
less via mere assumption.
In sum, these are what the NLRC and the CA found as matters of fact
and law:
1. Abbott failed to specify the reasonable standards by which
Alcaraz' alleged poor performance was evaluated, much less to
prove that such standards were made known to her at the time of
her recruitment.

2. The employment contract does not show that Alcaraz had been
apprised of the requirements to become a regular employee.
3. The Labor Arbiter's reasoning that a top level pharmaceutical
corporation would not be remiss in leaving its standards of
continued employment undisclosed to its employees is simply
non sequitur .
4. Alcaraz' receipt of Abbott's Code of Good Corporate Conduct,
Probationary Performance Standards and Evaluation and
Performance Excellence Orientation Modules for the Hospira
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 ALSU Staff cannot be equated with being actually informed of the
performance standards. Notably, what Alcaraz received was
the Probationary Performance Standards for the Hospira
ALSU Staff.
5. Alcaraz received these various documents not at the time of
her engagement but only on March 3, 2005 or a month after
her engagement. aSDHCT

6. Abbott's claim on Alcaraz' poor performance (on account of her

tardiness, poor time management, failure to build effective
rapport, non-completion of training and poor time management
skills) [was] not supported by evidence .

7. There is also no evidence to show that Abbott conveyed to or

confronted Alcaraz with her alleged inefficiencies or
incompetence at any time during her tenure with Abbott.
8. While Abbott has a standard operating procedure in evaluating
probationary employees, there is no evidence that Alcaraz
underwent this procedure.

9. What makes [Alcaraz's] dismissal for alleged dismal

performance even more highly suspicious is that she was
even complimented by no less than Ms. Kelly Walsh in her
electronic mail dated 25 April 2005. 14

Based on these findings, the CA correctly determined that the NLRC did
not commit grave abuse of discretion in reversing the LA's ruling.
Consider the following: first, the LA's ruling that Alcaraz was apprised of the
reasonable standards (to qualify as regular employee) was merely based on
Alcaraz's factual narrations in her position paper — narrations that by
themselves do not at all speak of any reasonable performance standards.
This is not even disputed by the ponencia; second, Alcaraz received the
documents that purportedly contain the performance standards only on
March 3, 2005 or a month after her engagement — contrary to what the law
requires on when the reasonable standards must be communicated; and
third, the LA himself is not convinced that these documents would suffice to
prove the existence of performance standards that he had to rely on a
baseless assumption that a top level pharmaceutical corporation would not
be remiss in leaving its standards of continued employment undisclosed to
its employees. In reversing the CA's ruling that no grave abuse of
discretion existed, the Court itself might have crossed into
prohibited territory through its own grave abuse of discretion. EDISaA

B. Substantive Objections
I. The constitutional guarantee of
security of tenure
The Constitution decrees that all workers are entitled to security of
tenure. This means that an employer cannot terminate his employee's
employment (whether actual or constructive) or otherwise suspend him
without any just or authorized cause and without complying with the due
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 process requirements mandated by law. This constitutional and statutory
guarantee seeks, in the ultimate, to prevent the capricious exercise by
the employer of his power to dismiss. 15 EHCcIT

Aside from the just and authorized causes provided by law, the law also
allows the employer to dismiss a probationary employee if 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." The inclusion of this phrase in Article 281 of the Labor Code
and the manner by which it is phrased indicate that: first, a probationary
employment is not a default mode of an employment contract; and second,
inadequate performance of one's duties and failure to comply with
reasonable standards cannot actually mean the same thing. TSAHIa

1. Probationary employment is not a

default mode of employment contract
Regardless of the kind of employment arrangement between the
parties, an employer has the right to put a newly-hired employee under a
probationary period or it may choose not to do so, as part and parcel of its
power to hire. If the employer opts for the latter, however, he may not easily
sever the relationship without proving the existence of a just or authorized
cause and without complying with procedural due process. If the employer
opts to hire an employee on a probationary basis, valid severance of the
employer-employee relationship — outside of the just and authorized causes
— presupposes that the employer had accomplished the following things: IDSETA

1. The employer must communicate to the employee that he is

being hired on a probationary basis;

2. The employer must convey to the probationary employee the

reasonable standards to qualify for regularization;
3. The probationary status of the newly-hired employee must be
communicated to him prior to the commencement of his
employment;

4. The employer must convey these reasonable standards at the

time of the probationary employee's engagement;
5. The employer must evaluate the performance of the
probationary employee v i s the duly communicated
reasonable standards; and

6. The employee fails to comply with these reasonable standards

before the completion of the probationary period.
These cumulative requirements are demanded from the employer itself
and cannot be supplied for him by law. These requirements, too, should
serve to dispel the wrong notion that a probationary employee enjoys
lesser rights than a regular employee under the Labor Code. Since a
probationary employment is not an "employment at will" situation as that
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 phrase is understood in American jurisprudence, the only way by which the
constitutional guarantee of security of tenure may be enforced is to ensure
that the employer sufficiently discharges its burden of proving compliance
with these requirements in the same manner that it is burdened to
prove the existence of a valid cause in dismissing an employee. 16 EcaDCI

2. "Inadequate performance of one's

duties" and "failure to comply with
reasonable standards" cannot actually
mean the same thing

The ponencia reiterates that adequate performance of one's duties

and responsibilities constitutes the inherent and implied standard for
regularization. In short, "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
sam e." 17 Otherwise, he may be terminated on the ground that his
performance during the probationary period is "inadequate."
If this is the case, then the law could have simply stated that a
probationary employee can be dismissed "if he fails to adequately perform
his duties and responsibilities" if it actually meant the "adequate
performance of one's duties" and "reasonable standards" to mean the same
thing.
In employing its present terms, Article 281 of the Labor Code merely
proceeded from the premise that security of tenure is not merely a
statutory but a constitutionally guaranteed right. To consider an
employee's regularization on the overly broad basis of "adequacy of
performance" alone would practically negate the constitutional guarantee.
Rather, the law employed a qualitative a n d quantitative measurement of
one's performance by requiring a probationary employee's performance to
be measured on the basis of reasonable standards. These standards or
measurement of performance serve as a statutory limitation to the
employer's prerogative to dismiss an employee, consistent with the
constitutional right to security of tenure.ETaHCD

The reason for requiring the existence of reasonable standards that are
duly communicated to the employee is not hard to discern. The
probationary period of employment is not exclusively for the benefit
of the employer but of both the employer and the employee: on one
hand, the employer observes the fitness, propriety and efficiency of a
probationary employee to ascertain whether she is qualified for permanent
employment; the probationary employee, on the other hand, seeks to prove
to the employer that she has the qualifications to meet the reasonable
standards duly communicated by the employer for permanent employment.
In the same manner that the probationary period of employment (or
trial period) is meant to serve the interests of both the employer and the
employee, the requirement of reasonable standards seeks to protect the
rights of both the employer (to his management prerogative) and the
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 employee (since his employment is in a sense a property right). TaCDAH

In the context of the present case, an employer who duly

communicates to a probationary employee these reasonable standards for
regularization can reasonably expect that his exercise of management
prerogative (whether to hire or fire) will be respected by the State (through
its labor tribunals and eventually the courts). Similarly, a probationary
employee who has been duly informed cannot be heard to cry foul later
should she fail in those performance standards of which she has notice.
II. Elements of valid probationary
employment
Based on Article 281 of the Labor Code and Section 6 (d) of the
Implementing Rules of Book VI, Rule I of the Labor Code, a valid probationary
employment presupposes the concurrence of two requirements: First, the
employer shall make known to the employee the reasonable standard
(performance standard) that the probationary employee must comply with to
qualify as a regular employee. Second, the employer shall inform the
employee of the applicable performance standard at the time of
his/her engagement. Failing in one or both, the employee, even if initially
hired as a probationary employee, should be considered a regular employee.
Both these elements are sorely wanting in this case. CHATEa

1. The rule and the exception in

jurisprudence

For emphasis, performance standards are the specific expectations

of the employer on how the probationary employee should perform. These
specific expectations cannot be equated with the duties and responsibilities
attached to the position. While the "specific expectations" inhere in an
employer and, accordingly, vary from one employer to another, the duties
and responsibilities inhere in the peculiarities of the particular job itself. Due
to the difference between the two, proof of the existence of one does not
necessarily prove the existence of the other and vice versa.
In Aberdeen Court, Inc. v. Agustin, Jr., 18 the Court made a qualification
to the rule that failure to comply with the two requirements for valid
probationary employment would make the employment a regular
employment. Where the employee acted "in a manner contrary to basic
knowledge and common sense, in regard to which there is no need to spell
out a policy or standard to be met," 19 then his termination on this ground
will be upheld by the Court. SEHaTC

In Robinsons Galleria/Robinsons Supermarket Corporation v. Ranchez ,

20the Court stated that a probationary employee shall be deemed a regular
employee where no standards are made known to him at the time of his
engagement "unless the job is self-descriptive, like maid, cook, driver, or
messenger."
Under these two instances, the very nature of the duty or duties to be
performed by the employee or of what he failed to perform (showing lack of
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 basic knowledge and common sense) is necessarily equated with the
performance standard or specific expectations of the employer as required
by law. Notably, what these cases instruct finds its logic in the law itself:
failure to meet a performance standard that is rooted on "basic knowledge
and common sense" can be a valid ground to terminate a probationary
employee without the need of an express prior communication of the
performance standard to the probationary employee. Basic knowledge and
common sense should be possessed by anyone desiring to find a regular
employment. acHDTE

Additionally, if the very nature of the job no longer permits the

employer from specifying his expectations that would constitute
performance standards beyond what the job itself entails, the law likewise
cannot demand something more from the employer. The law, however, does
not bar the employer from expressly laying down his terms, even with the
simplicity of the job, before a probationary employee can qualify for
regularization. ETaHCD

While all jobs, regardless of their nature, would necessitate a

description of what they entail, not all jobs would legally require the
employers to set and communicate a performance standard applicable to
them, as enunciated under the exceptions. The legal requirement for the
employer to lay down and communicate the performance standards to the
employee at the time of his engagement arises from the nature of the
probationary employment as a trial period. A trial period presupposes the
existence of a standard against which the probationary employee's
performance would be tried and measured. Accordingly, the communication
of a performance standard is a requirement imposed by law — on top of the
practical requirement of describing the job and communicating, expressly or
impliedly, this description to the employee — unless the nature of the job
falls within the exceptions. CAETcH

In the present case, while the ponencia did not — and could not —
expressly claim that the petitioners' case falls within the exceptions it oddly
leaned on the exceptions to stretch its reading of the general rule .
This legal maneuvering is most unwarranted for going against the basic
principle in dismissal-of-employees cases, i.e., the burden of proof rests
upon the employer to show that the dismissal is for a just cause and failure
to do so would necessarily mean that the dismissal is not justified. 21
These observations lead to the conclusion that the law's demand for
compliance with the two requirements (for a valid probationary
employment to exist) becomes greater as the complexity of the job
increases since the same complex nature of the job results in varying
needs and specific expectations from different employers that are engaged
in the same line of industry. Hence, it is highly inappropriate to cite Alcaraz's
"extensive training and background" to effectively make up for Abbott's own
failure to comply with the requirements of the law.
In other words, the more complex the job is (like that of managerial
employee) the more it becomes necessary to specify what the employer's
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 specific expectations are vis-à-vis the duties and responsibilities that the job
entails. In this manner, compliance with the twin requirements of a valid
probationary employment may require the employer to lay down a
quantitative or qualitative standard (or both) in measuring the performance
of a probationary employee.
In the present case, none of the petitioners' evidence shows what
these quantitative and/or qualitative standards are. aSHAIC

2. Abbott's pre-employment orientation

and other documentary evidence
cannot amount to performance
standards
The pre-employment orientation the petitioners conducted for Alcaraz
and the office policies communicated to her cannot be equated with the
performance standards required by law. The pre-employment orientation
pertains to Alcaraz's duty to implement Abbott's Code of Conduct and
office policies as they relate to the staff she has to manage and
supervise. The other pieces of documentary evidence Abbott presented —
Code of Conduct, PPSE and Performance Excellence Orientation Modules —
were likewise in line with its purpose of acquainting and assisting Alcaraz in
her duty in supervising and evaluating the employees assigned to her
department.
Interestingly, even if these documents were not given to Alcaraz for the
purpose of communicating the performance standards that apply to her,
Abbott claims that since it has only one evaluation system for all its
employees, Alcaraz very well knew that the contents of these documents
would be the same measure in evaluating Alcaraz's performance. However,
the facts, as found by the ponencia itself, tell otherwise, i.e., that Alcaraz
was actually subjected to a different work performance evaluation:
On April 20, 2005, Alcaraz had a meeting with petitioner Cecille
Terrible (Terrible), Abbott's former HR Director, to discuss certain
issues regarding staff performance standards. In the course . . .
thereof, Alcaraz accidentally saw a printed copy of an e-mail sent by
Walsh to some staff members which essentially contained queries
regarding the former's job performance. Alcaraz asked if Walsh's
action was the normal process of evaluation. Terrible said that
it was not. 22 (emphasis ours) cEAIHa

This is a uniform, undisputed finding of fact of the LA, the NLRC and the CA.
Given the difference in treatment by Abbott in Alcaraz's case, Abbott cannot
avoid the conclusion that it may only legally be allowed to divert from the
usual procedure on the ground that Alcaraz is actually bound by a different
set of specific expectations by her employer because of the nature of the
duties and responsibilities that a managerial employee like her has to
discharge. If she is bound by a different set of expectations, then Abbott
must prove what these expectations are in order to comply with the required
performance standards.
As the NLRC and the CA found however, there is no evidence on record
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 to show what these standards really were and that they were duly
communicated. Much less was there evidence that Alcaraz was actually
evaluated on the basis of the required duly communicated standards.
Abbott's own admission that it had only one evaluation system for all of
its employees actually backfires against it for being inconsistent with its own
conduct (when it subjected Alcaraz to a different evaluation process) and
omission (when it failed to communicate to Alcaraz the performance
standards that are actually applicable to her). By itself, its admission proves
the utter lack of evidence to show Abbott's compliance with the first (and,
much less the second) requirement of a valid probationary employee. If
Abbott would insist on the uniformity of its performance standard, one can
be tempted to ask whether Abbott can assess its Regulatory Affairs Manager,
like Alcaraz, who has an initial salary of P110,000.00 on the same standard
Abbott applies to its office receptionist or clerk and objectively consider the
application compliant with the law.
To be sure, Abbott cannot answer this question affirmatively without,
at the same time, suggesting the superfluity of the two requirements in
Article 281 of Labor Code for a valid probationary employment to exist. The
law precisely required the performance standards to be "reasonable" since
the performance standard applicable to only one type of employee (e.g.,
managerial) cannot reasonably be applied to a different type of employee
(e.g., clerical).
Abbott likewise cannot answer in the negative without contradicting its
own admission on record and without emphasizing what the NLRC and the
CA have found all along — the absence of an applicable performance
standard duly communicated to Alcaraz. IAEcCa

Since the validity of Alcaraz's dismissal hinges on whether Abbott

complied with the twin requirements under Article 281 of the Labor Code,
then proof of its compliance with these requirements must be substantiated
by the evidence — and not merely assumed from or impelled by something
that, in the first place, the NLRC and the CA did not find existing.
3. The case of Aliling v. Feliciano

On this point, I submit that Alcira v. NLRC, 23 far from advancing

Abbott's position, in fact, supports this Dissent in the same manner that the
case of Armando Aliling v. Jose B. Feliciano, et al., 24 cited by Alcaraz, does.
In Aliling, there were three grounds cited, each of which can
independently support the Court's ruling, in finding that the probationary
employee was actually a regular employee, for failure to comply with the
requirements of the law on probationary employment. TaIHEA

First, the labor tribunals and the CA uniformly found the lack of
performance standards duly communicated to the employee. In the present
case, the fact that the LA arrived at a conclusion different from those
reached by the NLRC and the CA does not authorize the Court to simply
brush aside the factual findings at these two levels of review because the
Court's jurisdiction under a Rule 45 petition is limited. More importantly, the
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 LA's ruling itself was legally and factually baseless, thus warranting its
reversal on appeal.
At the risk of being repetitive, what the CA reviews under a Rule 65
petition is a ruling that under the law is already final. To warrant the
issuance of the writ of certiorari, the CA should find the existence of grave
abuse of discretion. Should it find none, as in the present case, the Court,
under a Rule 45 petition, is confined to the determination of the legal
correctnessof the CA's finding that the NLRC ruling of illegal dismissal had
basis in fact and in law (i.e., was not attended by grave abuse of discretion).
HTAIcD

Second, the probationary employee was "assigned to GX trucking

sales, an activity entirely different from the Seafreight Sales he was
originally hired and trained for." 25 The difference in assignment led the
Court to conclude that "at the time of his engagement, the standards
relative to his assignment with GX sales could not have plausibly been
communicated to him as he was under Seafreight Sales." 26
This circumstance is admittedly absent in the present case.
Nonetheless, the third ground cited by the Court requires an extended
discussion since it touches on the quantitative and qualitative assessment of
probationary employees now advanced by the ponencia.
a. The quantitative and qualitative
assessment of probationary employees

In Aliling, the letter-offer to the probationary employee states that the

regularization standards or the performance norms to be used are still to be
agreed upon by the probationary employee and his supervisor — i.e., the two
would "jointly define [their] objectives compared with the job requirements
of the position" 27 — without the employer proving that an agreement has, in
fact, been reached. While there was evidence that the supervisor reminded
the probationary employee of the sales quota he must reach for continued
employment, this standard was communicated belatedly or one month after
the employee's engagement.
While the specific expectations of an employer may cut across the
details of one's job description, the Court must not confuse one with the
other. In the case of a salesperson (account executive), specific expectations
may translate into the minimum quota that a probationary employee must
reach to be entitled to regularization. In the present case, there is
absolutely nothing in the petitioner's evidence that would have given
the NLRC and the CA — and this Court — a hint as to what the petitioners'
expectations would translate into. The ponencia's reasoning that it is the
adequacy of the performance of these duties and responsibilities, which
constitutes as the "implied and inherent" reasonable standards for
regularization, begs the question. On what basis is the "adequacy" legally
gauged? To this argument, the ponencia offers an explanation. SIcEHD

The determination of "adequate performance" is not, in all case,

measurable by quantitative specification, such as that of a sales quota
. . . It also hinged on the qualitative assessment of the employee's
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 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 . . .
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 . . . lawyers, artists and journalist. In
these kinds of jobs, 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 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 probationary
employee's duties and responsibilities. 28
The fundamental flaw in the ponencia's explanation is that it
contradicts the evidence on record. Applying the ponencia's reasoning,
Abbott itself may have recognized that the standards for measuring the
quality (instead of quantity) of Alcaraz's work are not "reducible to hard
figures." 29 To be able to comply with the law, Abbott devised its own system
of evaluation to measure the "adequacy of Alcaraz's performance." Since the
"adequacy of performance" cannot entirely be left to the whims and caprices
of Abbott, the Court can rightfully consider Abbott's PPSE as its legal
compliance with Article 281 of the Labor Code on the twin requirements of
probationary employment. Abbott's PPSE requires: CDTHSI

a. Performance standards must be discussed in detail with the

employee within the first two weeks on the job. This means the
leader should have already identified the Core Job
Responsibilities, goals, and competency expectations prior to
discussion with the probationary employee.

b. A signed copy of the Probationary Performance Standards and

Evaluations (PPSE) must be submitted to HRD within employee's
1st two weeks on the job.
c. The completed PPSE will serve as documentation of the employee's
performance during his/her probationary period, and will serve as
basis for recommending confirmation or termination of
employment with Abbott. To be submitted to HRD on the
probationary employee's 5th month on the job. 30

In short, based on Abbott's own manner of legal compliance with the

law's requirement on performance standards, Abbott prescribes the
procedure for making the evaluation and it is only through compliance
with this procedure that Abbott's determination of the adequacy of
performance can be shown. Since not all probationary standards of
quality measurement are "reducible to hard figures or are readily articulable
in specific pre-engagement descriptions," 31 Abbott's PPSE is its own
solution, as far as practicable, to be able to "map into technical indicators or
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 convey in precise detail the quality standards" 32 by which Alcaraz's
probationary employment would be assessed. The truism that the
substance of the law can be found in the interstices of the
procedure cannot be more applicable than in the present case. CaATDE

Abbott's failure to comply with its own prescribed manner of

determining a probationary employee's performance goes into and
against the very nature of the employer's legal obligation to evaluate the
probationary employee's performance and to determine that she actually
failed to comply with the reasonable standards required by the law itself. In
t h e ponencia's words, this reasonable standard is the adequacy of
performance of her duties and responsibilities. Abbott's failure to comply
with its own procedure in evaluating Alcaraz's performance — and in actually
deviating therefrom — is itself a palpable proof that there were no duly
communicated performance standards in the present case to begin with,
both in point of fact and law.
On this point and contrary to the ponencia's view, Abbott's non-
compliance with the terms of the PPSE cannot be regarded as a mere matter
of procedural lapse. In reality, one cannot divorce the requirement of
reasonable standards and of duly communicating it to the probationary
employee, on one hand, and the requirement that the employee, in fact,
failed to comply with these standards in the manner that the employer
himself had contractually determined if only to give life to the constitutional
guarantee of security of tenure to all workers, on the other hand. For this
reason, the ponencia cannot insist that the non-compliance with the PPSE is
only a formal defect and yet claim that adequacy of performance is not
reducible to figures. Abbott cannot have its cake and eat it too.
Notably, prior to or at the time of Alcaraz's engagement, Abbott's
communications to Alcaraz comprised only of: (i) her job description; (ii) the
duties and responsibilities attached to the position; (iii) the conditions of her
employment, i.e., the position title, the assigned department, the status of
employment, and the period of employment; (iv) Abbott's organizational
structure; and (v) what she had to implement, i.e., Abbott's Code of Conduct,
office policies on human resources and finance, and to whom she would be
reporting to. IDCHTE

Even if we go by the ponencia's reasoning, these communications by

themselves do not establish the legal gauge of "adequacy" of performance
by which Alcaraz's probationary performance would be measured. To
emphasize, abbott's PPSE serves as a legal gauge to measure the adequacy
of Alcaraz's performance. Unfortunately, the silence of the ponencia and the
dearth of evidence on why this legal gauge was not applied to Alcaraz would
keep this aspect of the case in mystery. To make matters worse, the PPSE
(together with the Performance Excellence Orientation Modules) was given
to Alcaraz almost a month after her engagement.
In other words, even the "totality of circumstances" approach by the
ponencia is fractured from the very start. The 2nd requirement for a valid
probationary employment under the Labor Code is, in fact, an offshoot of the
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 first requirement of a reasonable standard: a standard is reasonable not
only because it lays down the employer's specific expectations applicable to
a particular type of employee vis the attendant duties and responsibilities
but also because it is duly communicated to the employee. A belated
communication of what the reasonable standard is deprives the standard of
the character of reasonableness.
Still, Abbott attempts to show the inadequacy of Alcaraz's performance
— although deviating from the prescribed procedure — by presenting its
May 19, 2005 letter addressed to Alcaraz, noting her "NA (Not Achieved)
ratings in the area of Core Job Competencies." 33 The ponencia unqualifiedly
bought this claim in this manner —
The employee in Aliling, a sales executive, was belatedly informed of
his quota requirement. Thus, considering the nature of his position,
the fact the he was not informed of his sales quota at the time of his
engagement changed the complexion of his employment. Contrarily
the nature of respondent's duties and responsibilities as Regulatory
Affairs Manager negates the application of the foregoing. Records
show that respondent was terminated because she . . . . Due to the
nature of these tasks, the performance standards for
measuring the same were hardly articulable at the time of her
engagement unlike those in Aliling which were already
conveyable. Hence, since the reasonableness of respondent's
assessment clearly appears from the records, her termination was
justified. 34 cHSIAC

T h e ponencia's statements require some serious reflection from the

Court. First, are we, in effect, saying that the reasonable standards required
by the law may be communicated at a point beyond the time of the
employee's engagement? To put it bluntly, is the Court not engaging in clear
judication legislation? Article 281 of the Labor Code is pointedly clear.
Art. 281. Probationary employment. — 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. [italics supplied; emphasis and underscore ours]

Second, the ponencia makes the qualitative assessment (in contrast

with a quantitative assessment) of a probationary employee far more
esoteric in business application than it actually is. As may be implied from
my earlier discussion, had Abbott discussed the PPSE with Alcaraz vis-à-vis
her duties and responsibilities, Abbott could have easily communicated to
Alcaraz, at least substantially, the specific expectations that translate into
the reasonable standards required of it by law. Not only did Abbott fail in this
regard, Abbott, in fact, belatedly gave the PPSE to Alcaraz, in patent violation
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 of Article 281 of the Labor Code.
Third, the ponencia wrote too early in claiming that it did not
undertake a "factual appellate review" of the case. Yet, it weighed in on the
supposed "reasonableness of [the petitioners] assessment" of Alcaraz's
performance because it "clearly appears on the record." 35 As the NLRC and
the CA found however, the factual accuracy of Abbott's assessment of
Alcaraz is not supported by evidence. HEcIDa

b. Rubbing it in : extension of the Agabon

and Jaka rulings does not cure a fatal
flaw

In an apparent attempt to belittle Abbott's non-compliance with its

internal procedure, the Court — for the first time — extends the
application of its rulings in Agabon v. NLRC 36 and Jaka Food Processing
Corporation v. Pacot 37 to the present case. In these cases, the Court ruled
that when a valid cause for termination exists, the employer's non-
compliance with the procedural requirements warrants the payment of
nominal damages.
In these cases, however, the procedural requirements do not have a
bearing on the validity of the dismissal since the existence of a just or
authorized cause can be proved by independent and objective evidence. In
the present case, what the ponencia advances as ground for termination of a
probationary employee is the inadequacy of her probationary performance.
At the risk of raising a rhetorical question, what is the legal gauge of this
basis of adequacy that is consistent with the constitutionally guaranteed
right of security of tenure? In other words, where the validity of the cause of
dismissal — adequacy of performance — cannot be resolved without
undergoing the very process prescribed by the employer for measuring the
adequacy, there is no reason to extend the Agabon and Jaka rulings in the
present case. aCcEHS

On this score, it is highly inapt to equate Abbott's internal procedure of

evaluating a probationary employee with the notice requirements under the
law even as a consoling gesture on the part of the Court. The inextricable
link between the procedure devised by Abbott for evaluating Alcaraz (as a
measure to qualitatively specify Abbott's specific expectations vis-
a-vis the duties and responsibilities of Alcaraz's position and to
evidence its qualitative assessment of Alcaraz), on one hand, and the end
that this procedure seeks to achieve, on the other hand, suffices to
distinguish Abbott's internal procedure and the statutory procedural
requirements.
c. Evidence of performance
standards

As stated in my earlier Dissent, the performance standard

contemplated in law may be proven by evidence of how the employee's
performance was intended to be or was, in fact, measured by the employer.
The performance standard may be in the form of a clear set of the
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 employer's expectations, or by a system of feedbacks (e.g., comment cards)
and document evaluation or performance evaluation and appraisals
conducted by the employer.
To this, again the ponencia offers an explanation:
[T]he performance standard contemplated by law should not, in all
cases, be contained in a specialized system of feedbacks or
evaluation. The Court takes judicial notice of the fact that not all
employers, such as simple businesses or small-scale enterprises,
have a sophisticated form of human resource management, so much
so that the adoption of technical indicators as utilized through
"comment cards" or "appraisal" tools should not be treated as a
prerequisite for every case of probationary engagement. 38

The problem with the ponencia's explanation is that it veers away from
the problem at hand — in the same manner that it did when it claimed that
actual communication of specific standards might not be necessary "when
the job is self-descriptive in nature, for instance, in the case of maids, cooks,
drivers, or messengers" even if Alcaraz was, in the first place, never a maid,
cook, driver or a messenger. Abbott is not engaged in a simple business not
is it a small-scale enterprise. Abbott is a multinational corporation, with
branches and different facilities located all over the world. As such, it is most
unfortunate that the specialized system it actually has in place — as a legal
gauge to measure the "adequacy of performance" of Alcaraz, i.e., the PPSE
— was never observed, not to mention, not duly communicated. 39 CIcEHS

III. Consequence of non-compliance

with Article 281 of the Labor
Code
Since Abbott failed to comply with the requisites for valid probationary
employment, then Alcaraz should be deemed a regular employee who can
be removed only with just or authorized causes. In the present case, the
petitioners failed to show that Alcaraz's dismissal was for a valid cause. The
petitioners also failed to comply with the two-written notice requirement
under Section 2, Rule XXIII, Book V of the Omnibus Rules Implementing the
Labor Code, in violation of Alcaraz's procedural due process rights under the
law.
In addition, the abrupt and oppressive manner by which the petitioners
dismissed Alcaraz from her employment justified the award of moral and
exemplary damages and attorney's fees. To reiterate my earlier Dissent:
The narration of facts of the Labor Arbiter, the NLRC and the CA
shows, among others, that: (1) the individual petitioners did not follow
the petitioner's prescribed procedure performance evaluation as, in
fact, the respondent's work was not evaluated; (2) the individual
petitioners, through their concerted actions, ganged up on the
respondent in forcing her to resign from employment; (3) the
individual petitioners pressured the respondent to resign by
announcing her resignation to the office staff, thereby subjecting her to
unwarranted humiliation; and (4) they blackmailed the respondent by
withholding her personal possessions until she resigned from
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 employment. IAEcCT

Bad faith can also be inferred from the lack of fairness and
underhandedness employed by the individual petitioners on how they
informed the respondent of the termination of her employment. The
records disclose that the respondent was lured into a meeting on the
pretext that her work performance was to be evaluated; she was
caught off-guard when she was informed that her employment had
been terminated. Aside from the abrupt notification, bad faith can also
be deduced from the fact that the termination was made immediately
effective; the respondent was immediately banned from the
petitioner's premises after she was informed that her employment had
been terminated.
In these lights, I vote to grant the motion for reconsideration.

Footnotes
1. Abbott Laboratories, Philippines v. Alcaraz, G.R. No. 192571, July 23, 2013, 701
SCRA 682.

2. Id. at 708-709.
3. Id. at 710.
4. See Article 223 of the Labor Code, as amended.
5. See St. Martin Funeral Home v. NLRC, 356 Phil. 811 (1998).

6. G.R. No. 172086, December 3, 2012, 686 SCRA 676.

7. Id. at 684-685.
8. Section 2, Rule I, Book VI of the Implementing Rules of the Labor Code provides
that "[i]f the termination is brought about by the . . . 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." To this end, the
Court in the assailed Decision pronounced that:
Verily, basic knowledge and common sense dictate that the adequate
performance of one's duties is, by and of itself, an inherent and implied
standard for a probationary employee to be regularized; such is a
regularization standard which need not be literally spelled out or mapped
into technical indicators in every case. In this regard, it must be observed
that the assessment of adequate duty performance is in the nature of a
management prerogative which when reasonably exercised — as Abbott did
in this case — should be respected. This is especially true of a managerial
employee like Alcaraz who was tasked with the vital responsibility of handling
the personnel and important matters of hat department. (Abbot Laboratories,
Philippines v. Alcaraz, supra note 1, at 709-710.)
9. G.R. No. 158693, November 17, 2004, 442 SCRA 573.
10. G.R. No. 151378, March 28, 2005, 454 SCRA 119.

11. "Evidently, the sanctions imposed in both Agabon and Jaka proceed from the
necessity to deter employers from future violations of the statutory due
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 process rights of employees. In similar regard, the Court deems it proper to
apply the same principle to the case at bar for the reason that an employer's
contractual breach of its own company procedure — albeit not statutory in
source — has the parallel effect of violating the laborer's rights. Suffice it to
state, the contract is the law between the parties and thus, breaches of the
same impel recompense to vindicate a right that has been violated.
Consequently, while the Court is wont to uphold the dismissal of Alcaraz
because a valid cause exists, the payment of nominal damages an account of
Abbott's contractual breach is warranted in accordance with Article 2221 of
the Civil Code." (Abbot Laboratories, Philippines v. Alcaraz, supra note 1, at
715-716.)
12. G.R. No. 185829, April 25, 2012, 671 SCRA 186.

13. Rollo , pp. 19-21, 78, and 80-81.

14. Philippine Commercial Industrial Bank v. Cabrera, G.R. No. 160368, March 30,
2005, 454 SCRA 792, 803.
BRION, J., dissenting:

1. Motion for Reconsideration, p. 4.

2. Id.
3. Id. at 9.

4. Comment, p. 3.
5. Id. at 4.
6. Id. at 5.
7. Id. at 8.

8. G.R. No. 149859, June 9, 2004, 431 SCRA 508.

9. A question of law arises when there is doubt as to what the law is on a certain
state of facts, while there is a question of fact when the doubt arises as to
the truth or falsity of the alleged facts. For a question to be one of law, the
same must not involve an examination of the probative value of the evidence
presented by the litigants or any of them. The resolution of the issue must
rest solely on what the law provides on the given set of circumstances. Once
it is clear that the issue invites a review of the evidence presented, the
question posed is one of fact (Tongonan Holdings and Development
Corporation v. Escaño, Jr., G.R. No. 190994, September 7, 2011, 657 SCRA
306, 314).

10. G.R. No. 183329, August 27, 2009, 597 SCRA 334.
11. Abbott Laboratories, Philippines, et al. v. Pearlie Ann F. Alcaraz, G.R. No.
192571, July 23, 2013; emphases supplied.
12. Reyes v. CA , 328 Phil. 171, 180 (1996).

13. Madrigal Transport, Inc. v. Lapanday Holdings Corp., 479 Phil. 768, 780 (2004);
citation omitted.
14. _______.
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 15. Alert Security and Investigation Agency, Inc. v. Pasawilan, G.R. No. 182397,
September 14, 2011, 657 SCRA 655, 665, citing De Guzman, Jr. v.
Commission on Elections, G.R. No. 129118, July 19, 2000, 336 SCRA 188,
197-198.
16. Aberdeen Court, Inc. v. Agustin, Jr., 495 Phil. 706, 712 (2005).
17. Draft Resolution, pp. 4-5.

18. Supra note 16, at 712.

19. Id. at 716-717.
20. G.R. No. 177937, January 19, 2011, 640 SCRA 135, 145.

21. Harborview Restaurant v. Labro, G.R. No. 168273, April 30, 2009, 587 SCRA
277, 281.
22. Ponencia , pp. 4-5.
23. Supra note 8. In this case, the probationary employee, in fact, underwent
company evaluation in accordance with the parties' agreement.
24. G.R. No. 185829, April 25, 2012, 681 SCRA 186.

25. Id. at 201.

26. Ibid.
27. Id. at 204.

28. Draft Resolution, p. 5.

29. Ibid.
30. _________.

31. Draft Resolution, p. 3.

32. Ibid.
33. ________.

34. Id. at 6; emphasis supplied.

35. Id. at 7.
36. 485 Phil. 248 (2004).
37. 494 Phil. 114 (2005).

38. Draft Resolution, p. 6.

39. Dissenting Opinion of Justice Arturo Brion in Abbott Laboratories, Philippines, et
al. v. Pearlie Ann F. Alcaraz, supra note 11.
3rd. The ponencia badly contradicts itself in claiming that actual
communication of specific standards might not be necessary "when the job is
self-descriptive in nature, for instance, in the case of maids, cooks, drivers, or
messengers." The respondent, in the first place, was never a maid, cook,
driver or a messenger and cannot be placed under this classification; she was
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 hired and employed as a human resources manager[.] [italics supplied]

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