THIRD DIVISION

[G.R. No. 157202. March 28, 2007.]

PHILIPPINE LONG DISTANCE and TELEPHONE COMPANY, INC. ,

petitioner, vs . AMPARO BALBASTRO and NATIONAL LABOR
RELATIONS COMMISSION , respondents.

DECISION

AUSTRIA-MARTINEZ , J : p

Before us is a Petition for Review on Certiorari led by Philippine Long Distance and
Telephone Company, Inc. (petitioner) seeking to annul the Decision 1 dated July 31, 2002
and the Resolution 2 dated February 7, 2003 of the Court of Appeals (CA) in CA-G.R. SP No.
51060.
Amparo Balbastro (private respondent) was employed by petitioner in 1978 as its
telephone operator until her questioned dismissal from employment on October 5, 1989.
She was dismissed by petitioner for her absences without authorized leave due to
uncon rmed sick leave on June 28 to July 14, 1989, which constituted her third offense 3
punishable by dismissal under petitioner's rules and regulations. 4
On October 28, 1991, private respondent led a Complaint 5 with the Labor Arbiter
against petitioner and its President, Antonio Cojuangco, for illegal dismissal, non-payment
of salary wage, premium pay for rest day, 13th month pay, and damages. In her position
paper, she alleged that she was dismissed on the ground of uncon rmed sick leave
despite her presentation of medical certi cates from her attending physicians which were
not considered by petitioner's medical doctors; and that she has four minor children and it
was not her intention to habitually absent herself without reason considering that her loss
of job which was based only on opinions of petitioner's doctors had caused her great
deprivation and moral suffering. She prayed for reinstatement, backwages, and damages.
Petitioner led its position paper with Motion to Dismiss 6 alleging that private
respondent's habitual and unjusti ed absences was a just and valid cause for her
termination under its rules and regulations; and that her record of unauthorized absences
for 1989 showed the following:
First unauthorized absences, from March 19 to 29, 1989. Private respondent
absented herself from work for nine days excluding rest days on March 23 to 24, 1989
without notice to petitioner. She gave marital problem as the reason for her absence. She
was penalized with 18 days suspension for violating petitioner's rules and regulations
regarding absences.
Second unauthorized absences, from June 11 to 13, 1989. Private respondent called
in sick from Tanauan, Batangas on June 5 that she was suffering from gastroenteritis. She
absented herself from June 5 to 13, 1989. On June 14, 1989, she presented herself to
petitioner's doctor, Dr. Melissa Musngi and submitted a medical certi cate where it was
stated that she was under treatment from June 5 to 8, 1989 of gastroenteritis. Dr. Musngi
con rmed private respondent's sick leave from June 5 to 10, 1989 but did not con rm her
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 absences from June 11 to 13, 1989 because her medical certi cate covered only the
period from June 5 to 8, 1989. Furthermore, petitioner reasons out that if she really had
such illness, certain normal logical medical procedures should have been taken, such as
stool examinations and hospitalization; and she bore no post-illness manifestations of
gastroenteritis. Private respondent's uncon rmed leave of absence was considered by
petitioner unauthorized due to her patent abuse of sick leave privileges and treated it as
her second offense and was penalized with 15 days suspension.
Third unauthorized absences, from June 28 to July 14, 1989. On June 25, 1989,
private respondent made a sick call that she had sore eyes and absented herself from
June 25 to July 14, 1989. On July 3, 1989, she was outvisited at her given address in
Makati but was not found home. On July 15, 1989, she reported for work and presented
herself to the clinic for con rmation. She had her medical certi cate issued by her
attending physician showing that she had been under his professional treatment from
June 25 to July 12, 1989 for systemic viral infection. Petitioner's doctor, Dr. Benito Dungo,
con rmed her sick leave from June 25 to 27, 1989 but did not con rm as to the rest of the
dates when she was absent from work. When asked to explain, private respondent said
that she had a viral infection during the said period; and that she was in Tanauan, Batangas
during the said dates so she was not found in Makati when outvisited. Petitioner's doctor
did not con rm her leave of absence from June 28 to July 14, 1989 on the ground that
such illness did not warrant a very long time of rest; certain laboratory examinations
should have been conducted by her attending physician; and there was patent abuse of her
sick leave privileges.
While private respondent's third leave of absence was being deliberated upon, she
absented herself from August 6 to 12, 1989. She called in sick on August 6, 1989
informing her supervisor that she had a fever. The medical certi cate issued by her
attending physician showed that she was under treatment from August 7 to 10, 1989 for
in uenza. Petitioner's doctor, Dr. Eduardo Co, con rmed private respondent's leave of
absence from August 6 to 8, 1989 but did not con rm the rest because her absences from
August 9 to 12, 1989 were not covered by a medical certi cate; her illness did not warrant
prolonged absence; and it was medically impossible for her to contract the same illness
which she contracted the previous month since it is a medical fact that there is no such
thing as an immediately recurrent viral infection.
In view of her repeated absences without authorized leave for the third time,
petitioner terminated private respondent's service effective October 5, 1989.
The Labor Arbiter conducted a hearing where private respondent testi ed on her
behalf, while petitioner presented the three medical doctors who did not con rm portions
of private respondent's leave of absence, and its Employee Relations and Service
Department Manager.
On May 30, 1994, the Labor Arbiter issued its Decision, 7 the dispositive portion of
which reads:
WHEREFORE, all the foregoing premises being considered, judgment is
hereby rendered ordering the respondent Philippine Long Distance [and]
Telephone Co. to reinstate the complainant to her former position as telephone
operator with all the rights, privileges and bene ts appertaining thereto, including
seniority, plus backwages equivalent to one (1) year salary in the sum of
P78,000.00 (P6,500.00/mo. x 12 mos.).

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 SO ORDERED. 8

The Labor Arbiter held that private respondent's rst incident of absence from
March 19 to 29, 1989 were unauthorized but not as to the other succeeding absences. It
found that private respondent, on her rst day of absence, called in sick and when she
reported for work, she went to petitioner's clinic for check-up and submitted her medical
certi cates, thus she complied with the standard requirements on matters of sick leave;
that petitioner's doctors did not con rm some portions of private respondent's leave of
absence based merely on their medical opinions; that such justi cation was not warranted
under Department Order No. ADM-79-02 wherein absences due to illness were considered
unauthorized and without pay when the attending doctor's signature is forged, there is
alteration as to the date and contents of the medical certi cate, the certi cate is false as
to the facts alleged therein, the doctor issuing the medical certi cate is not quali ed to
attend to the illness, there are falsities and misrepresentations, and when there is patent
abuse of sick leave privileges; and that these circumstances were not proven in this case.
SADECI

The Labor Arbiter gave more credence to the doctor who actually attended to
private respondent rather than to the medical opinion of petitioner's doctors. It concluded
that petitioner's doctors should have coordinated with private respondent's attending
physicians to settle any doubts as to the medical certificates.
Petitioner led its appeal with the National Labor Relations Commission (NLRC). 9
On January 19, 1996, the NLRC issued a Resolution 1 0 a rming the decision of the Labor
Arbiter.
The NLRC found that company practice allows leave of absence due to sickness if
supported by a medical certi cate issued by the attending physician; that a difference in
opinion by the Medical Director from that of the attending physician should not prejudice
private respondent since the Medical Director can consider absences unauthorized only in
cases of forgery and patent abuse of sick leave privileges which were not proven in this
case; that if the Medical Director entertained doubts as to the medical certi cate, he
should have asked the attending physician to submit himself for cross-examination and
then present an independent physician for an expert opinion on the matter.
Petitioner's Motion for Reconsideration was denied in a Resolution 1 1 dated March
14, 1996.
Undaunted, petitioner led with us a Petition for Certiorari with prayer for the
issuance of a Temporary Restraining Order (TRO). A TRO was issued to enjoin the
enforcement of the NLRC Resolution until further orders. 1 2
In a Resolution dated December 7, 1998, 1 3 we referred the petition to the CA in
accordance with the St. Martin Funeral Home v. National Labor Relations Commission 1 4
ruling.
On July 31, 2002, the CA issued its assailed Decision which dismissed the petition
and a rmed the NLRC Decision. The CA held that as long as the medical certi cate
presented did not fall under any of the in rmities set forth in petitioner's rules and
regulations, the uncon rmed leave should be treated merely as absence without leave and
was not subject to disciplinary action; that petitioner may not rely on the previous
absences of respondents in 1978 and 1982 to show abuse of sick leave privileges
because petitioner had acknowledged that respondent had already been penalized with
suspension, and those absences were committed beyond the three-year period mentioned
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 in their rules and regulations; that in its desire to clothe private respondent's dismissal
with a semblance of legality, petitioner points to private respondent's fourth unauthorized
leave of absence committed in August 1989 while the third unauthorized leave of absence
was being deliberated upon; and that the notice of dismissal referred only to her third
unauthorized leave, thus she could not be faulted for an infraction for which she was not
charged.

Petitioner's Motion for Reconsideration was denied in a Resolution dated February 7,

2003.
Hence, petitioner led the instant Petition for Review on Certiorari alleging the
following grounds:
I
WITH ALL DUE RESPECT, THE HONORABLE COURT FAILED TO CONSIDER THAT
THE PETITION HEREIN DOES NOT MERELY INQUIRE UPON THE RELATIVE
WEIGHT OF THE EVIDENCE PRESENTED BY THE PARTIES, BUT IS ANCHORED
ON MANIFESTLY ERRONEOUS CONCLUSIONS ON THE PART OF THE NLRC
ARISING FROM GROSS MISAPPREHENSION OF THE FACTS OBTAINING IN THE
CASE. AMONG OTHERS, IT WAS GRAVE ERROR TO CONCLUDE THAT THERE
WAS NO PATENT ABUSE OF THE SICK LEAVE PRIVILEGE ON THE PART OF THE
PRIVATE RESPONDENT BECAUSE THE MEDICAL CERTIFICATES SHE
PRESENTED WERE NOT FALSE, FORGED, OR ALTERED TOTALLY
DISREGARDING THE FACT THAT "ABUSE OF SICK LEAVE PRIVILEGE" IS A CAUSE
SEPARATELY ENUMERATED UNDER THE RULES AS A GROUND FOR
DISCIPLINARY ACTION.
II

WITH ALL DUE RESPECT, THE HONORABLE COURT FAILED TO CONSIDER THAT
THE CONCLUSIONS OF THE NLRC ARE BEREFT OF ANY LEGAL OR FACTUAL
BASES AS THERE WERE LEGALLY NO MEDICAL CERTIFICATES TO SPEAK OF,
AND THE EXISTENCE THEREOF ARE PURE AND SIMPLE HEARSAY, HENCE
COULD NOT BE VALIDLY RELIED UPON OR INVOKED BY THE PRIVATE
RESPONDENT TO SUPPORT HER DEFENSE EVEN SUPPOSING TECHNICAL
RULES ON EVIDENCE COULD BE RELAXED IN LABOR PROCEEDINGS. 1 5

Petitioner argues that the NLRC's conclusions that private respondent had not
committed a patent abuse of sick leave privileges and that her dismissal was illegal are
utterly without any factual or legal basis; that the NLRC's conclusion that the dismissal was
illegal was merely based: (1) on the evidence of private respondent; (2) on medical
certi cates which are clearly hearsay and of no probative value whatsoever; and (3) on
medical certi cates which, even supposing could be considered, simply failed to cover the
period of the leave requested and set forth implausible diagnoses.
Petitioner claims that the CA as well as the NLRC failed to resolve the issue of
whether or not the medical certi cate should be given any credence at all; that it had
presented four witnesses which included their three medical doctors who were subjected
to cross-examinations, and yet credence was given to private respondent's hearsay
evidence consisting merely of a medical certi cate by the latter's attending physician who
was not even presented to testify; that since the content of the medical certi cate had
been rebutted and refuted by petitioner's witnesses, the burden of evidence is shifted to
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 private respondent to show that the medical certi cate she submitted was competent,
proper, and sound which she failed to do. aIcTCS

Petitioner further claims that the CA erred in not nding that private respondent
committed a patent abuse of sick leave privileges which does not arise solely from forgery
or alteration of the medical certi cate, but on the fact that an employee had frequently and
incorrigibly absented herself and then applied for sick leave with absolute impunity armed
with medical certi cates which not only failed to cover the entire length of the leave but
also with implausible diagnoses; that excluding private respondent's unauthorized
absences in 1989, she had accumulated 93 days of sick leave from January to July 1989
and 115 days of sick leave in 1988, thus, how can the conclusion be drawn that there was
no patent abuse of sick leave privileges; and that her unauthorized absence for which she
was terminated all occurred in 1989, thus, the CA erred in saying that petitioner may not
rely on the previous absences of respondent in 1978 and 1982 to justify private
respondent's dismissal.
We nd the petition meritorious. Private respondent was validly dismissed by
petitioner. It must be borne in mind that the basic principle in termination cases is that the
burden of proof rests upon the employer to show that the dismissal is for just and valid
cause and failure to do so would necessarily mean that the dismissal was not justi ed and,
therefore, was illegal. 1 6 For dismissal to be valid, the evidence must be substantial and
not arbitrary and must be founded on clearly established facts. 1 7 We nd that petitioner
had discharged this burden.
Under petitioner's Department Order No. ADM-79-02, for the absence due to an
alleged illness to be considered unauthorized, without pay, and subject to disciplinary
action, it must be shown that the medical certi cate is forged, altered as to the date and
contents, false as to the facts stated therein, issued by a doctor not quali ed to attend to
the patient's illness, and there is patent abuse of sick leave privileges. The penalty for three
offenses of unauthorized absences committed within the three-year period is dismissal.
Private respondent's uncon rmed absences from June 28 to July 14, 1989 is the
crucial period in this particular case.
The Labor Arbiter and the NLRC found that private respondent was illegally
dismissed by petitioner. Such nding was a rmed by the CA. They all concluded that the
medical certi cate which private respondent presented did not fall under the
circumstances enumerated in Department Order No. ADM-79-02, and there was no patent
abuse of sick leave privileges, thus, there was no basis for petitioner's doctors not to
confirm her sick leave and consider the same unauthorized.
The jurisdiction of this Court in a petition for review on certiorari is limited to
reviewing only errors of law, not of fact, unless the factual ndings being assailed are not
supported by evidence on record or the impugned judgment is based on a
misapprehension of facts. 1 8 We find that those exceptions are present in the instant case.
We nd that petitioner had su ciently established that private respondent
committed a patent abuse of her sick leave privileges which is one of the grounds listed in
Department Order No. ADM-79-02 for disciplinary action.
Private respondent was absent on June 25, 1989 and the reason given was sore
eyes. She was then absent from June 25 to July 14, 1989. When she reported for work on
July 15, 1989, she went to petitioner's doctor, Dr. Benito Dungo, for con rmation of her
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 leave of absence and presented a medical certi cate 1 9 from her attending physician, Dr.
Manuel C. Damian of Tanauan Batangas, who certi ed that she had been under his
professional care from June 25 to July 12, 1989 for systemic viral disease.
Dr. Dungo con rmed private respondent's leave of absence from June 25 to 27,
1989 only and did not con rm her leave from June 28 to July 14, 1989 for the following
reasons: (a) systemic viral disease indicated in the medical certi cate does not warrant
such a very long time of rest and recuperation; (b) if she really had an infection, the logical
recourse is for the attending physician to conduct a chest x-ray and blood examination to
determine the cause of the prolonged fever, but such was not made; (c) if she was really ill
for such a long time, she would have already been con ned in a hospital for treatment as
petitioner has standing agreements with various hospitals to provide immediate medical
assistance free of charge; (d) she displayed no residue of symptoms of u, thus casting
doubt on the veracity of her claim; (e) she called in sick on June 25, 1989 that she was
suffering from sore eyes but her medical certi cate made no mention of such condition;
and (f) her medical records reveal a pattern of abuse of sick leave privileges. 2 0
Private respondent's reason for her absence on June 25, 1989 was sore eyes,
however the medical certi cate that she presented for her prolonged absence from June
25 to July 14, 1989 was systemic viral disease and as correctly observed by Dr. Dungo,
sore eyes was never mentioned therein.
Moreover, in the medical progress note 2 1 of Dr. Damian dated October 10, 1989
attached to private respondent's position paper submitted before the Labor Arbiter, it was
shown that private respondent was seen by Dr. Damian on June 25, 1989 at 9:00 a.m. and
her temperature was 40 degrees and she was complaining of severe headache and body
pain. It would appear that there was a discrepancy between the reason given when she
called in sick on June 25, 1989 and her complaints when she consulted Dr. Damian on the
same day. In fact, when private respondent was asked on cross-examination why sore
eyes was never mentioned in her medical certi cate, all that she could say was "the
diagnosis was systemic viral disease, sama-sama na lahat". 2 2
The medical certi cate issued by Dr. Damian showed that private respondent was
under his professional care from June 25 to July 12, 1989. However, the medical progress
note dated October 10, 1989 of the same doctor showed that private respondent
consulted him only on June 25, 27, and 29, 1989. It was never mentioned that Dr. Damian
had seen private respondent after June 29, 1989. Thus, there was even a discrepancy
between the medical certi cate dated July 13, 1989 and the medical progress note as to
the time frame that private respondent was seen by Dr. Damian. The medical certificate did
not cover private respondent's absences from July 13 to 14, 1989 and she only reported
for work on July 15, 1989.
It bears stressing that from the time private respondent called in sick on June 25,
1989 due to sore eyes, she never called up petitioner again until she reported for work on
July 15, 1989. She never went to petitioner's doctors for them to verify her sickness.
Private respondent had committed the rst two offenses of unauthorized absences
in the same year. First, she did not report for work from March 19 to 29, 1989 without
notice to petitioner, thus her absence was treated as unauthorized and considered her rst
offense for which she was penalized with suspension. Second, she again did not report for
work from June 5 to 13, 1989 and when she reported for work and presented her medical
certi cate, it covered the period from June 5 to 8, 1989 only but she did not report for
work until June 14, 1989. Petitioner's doctor did not confirm her absences from June 11 to
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 13, 1989, thus, the same was considered unauthorized and her second offense for which
she was penalized again with suspension. These two unauthorized absences together with
her third unauthorized absences committed from June 28 to July 14, 1989 are su cient
bases for petitioner's nding that private respondent patently abused her sick leave
privileges. ADScCE

Previous infractions may be used as justi cation for an employee's dismissal from
work in connection with a subsequent similar offense. 2 3 Moreover, it is in petitioner's rules
and regulations that the same offense committed within the three-year period merits the
penalty of dismissal. The CA's nding that petitioner may not rely on the previous
absences of private respondent in 1978 and 1982 to show abuse of sick leave privileges
has no basis since private respondent was dismissed for committing her three
unauthorized absences all in 1989.
It had also been established by Dr. Dungo's testimony that private respondent's
medical record showed that she did not go to the clinic for consultation as she would only
present a medical certi cate and get a clearance for her sick leave; 2 4 that the same
medical record showed her absences in 1989 as follows: (1) From April 27 to May 4 due
to urinary tract infection and she submitted a medical certi cate; 2 5 (2) From May 5 to 14
due to back pain; 2 6 (3) From May 20 to 21 due to migraine; 2 7 (4) June 5 to 13 due to
gastroenteritis (penalized as her second offense); (5) June 15 to 24 due to conjunctivitis
and submitted a medical certi cate; 2 8 and (6) June 25 to July 14, 1989 due to systemic
viral disease with medical certi cate (her third offense penalized with dismissal). Private
respondent had incurred a total absence of 85 days from January to October 1989; 2 9 and
115 days in 1988. 3 0 It had also been established that petitioner's doctors con rmed most
of her sick leave out of compassion 3 1 and that her medical records showed that there
were several warnings given her regarding her unconfirmed sick leave. 3 2
As petitioner stated in its pleadings, it is a telecommunication service company
which provides the country with various telecommunication services and facilities. Its
operations are a vital part to many transactions all over the country and abroad, and
private respondent was one of its telephone operators who used to connect all these calls.
Thus, her patent abuse of her sick leave privileges is detrimental to petitioner's business.
While it is true that compassion and human consideration should guide the
disposition of cases involving termination of employment since it affects one's source or
means of livelihood, it should not be overlooked that the bene ts accorded to labor do not
include compelling an employer to retain the services of an employee who has been shown
to be a gross liability to the employer. The law in protecting the rights of the employees
authorizes neither oppression nor self-destruction of the employer. 3 3 It should be made
clear that when the law tilts the scale of justice in favor of labor, it is but a recognition of
the inherent economic inequality between labor and management. The intent is to balance
the scale of justice; to put the two parties on relatively equal positions. There may be
cases where the circumstances warrant favoring labor over the interests of management
but never should the scale be so tilted if the result is an injustice to the employer. Justitia
nemini neganda est (Justice is to be denied to none). 3 4
WHEREFORE, the instant petition is GRANTED. The Decision dated July 31, 2002 and
the Resolution dated February 7, 2003 of the Court of Appeals in CA-G.R. SP No. 51060 are
hereby REVERSED and SET ASIDE. The complaint of Amparo Balbastro is DISMISSED.
No costs.
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 SO ORDERED.
Ynares-Santiago, Callejo, Sr., Chico-Nazario and Nachura, JJ., concur.

Footnotes
1. Penned by Justice Mario Guariña III and concurred in by Justices Conrado M. Vasquez, Jr.
and Andres B. Reyes, Jr.; CA rollo, pp. 271-276.
2. Id. at 299.
3. Records, p. 84.
4. "Traffic Operators Guidelines for Disciplinary Actions"
xxx xxx xxx

7. Unconfirmed Sick Leave. This may be treated as:

a) AWOL, or
b) Leave of Absence without pay.
8. AWOL

Frequency Penalty
1st offense Suspension- # of days absent x 2
2nd offense Suspension - # of days absent x 3 but not less than 15 days
3rd offense Dismissal
within a 3 year period.

5. Docketed as NLRC-NCR Case No. 00-10-06232-91.

6. Records, pp. 24-47.
7. Penned by Labor Arbiter Jose G. De Vera, records, pp. 1032-1042.
8. Id. at 1042.
9. Docketed as NLRC NCR CA No. 007802-94.

10. Penned by Commissioner Ireneo B. Bernardo, concurred in by Presiding Commissioner

Lourdes C. Javier and Commissioner Joaquin A. Tanodra, records, pp. 1342-1348.

11. Id. at 1386-1387.

12. CA rollo, pp. 98-99.
13. Id. at 160.
14. 356 Phil. 811 (1998).

15. Rollo, pp. 49-50.

16. Royal Crown Internationale v. National Labor Relations Commission , G.R. No. 78085,
October 16, 1989, 178 SCRA 569, 578 citing Polymedic General Hospital v. National
Labor Relations Commission, G.R. No. L-64190, January 31, 1985, 134 SCRA 420, 424.
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 17. Skippers Pacific, Inc. v. Mira, 440 Phil. 906, 918 (2002).
18. German Machineries Corporation v. Endaya , G.R. No. 156810, November 25, 2004, 444
SCRA 329, 340, citing Bolinao Security and Investigation Service, Inc. v. Toston , G.R. No.
139135, January 29, 2004, 421 SCRA 406, 412.
19. Annex "D-1", records, p. 934.
20. Exhibit "1", Affidavit of Dr. Dungo, id. at 130-135.
21. Id. at 9.
22. TSN, January 27, 1993, p. 87.

23. Stellar Industrial Services, Inc. v. National Labor Relations Commission , 322 Phil. 352, 364
(1996). AHDacC

24. TSN, March 8, 1993, p. 30.

25. Id. at 31.
26. Id. at 32.
27. Id. at 33.
28. Id. at 34.

29. TSN, March 18, 1993, p. 23.

30. Id. at 25.
31. TSN, October 21, 1993, p. 42.
32. Id.

33. Philippine Geothermal, Inc. v. National Labor Relations Commission , G.R. No. 106370,
September 8, 1994, 236 SCRA 371, 378-379 citing Paci c Mills, Inc. v. Alonzo , G.R. No.
78090, July 26, 1991, 199 SCRA 617, 622.
34. Philippine Geothermal, Inc. v. National Labor Relations Commission, id. at 379.

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