G.R. No. 175365 - Gemina, Jr. vs. Bankwise, Inc.

Case Digest (G.R. No. 175365)
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Facts:

Parties and procedural posture

Candido S. Gemina, Jr. (Gemina) filed a Petition for Review on Certiorari under Rule 45 of the Rules of Court, assailing the Decision dated July 17, 2006 and Resolution dated November 7, 2006 of the Court of Appeals (CA) in CA-G.R. SP No. 89343.
The CA Decision affirmed the Decision dated December 29, 2004 of the National Labor Relations Commission (NLRC) in NLRC NCR 00-02-02298-2003.
In 2008, Bankwise was declared insolvent and the Philippine Deposit Insurance Corporation (PDIC) was designated as receiver; PDIC entered its appearance on behalf of Bankwise on February 29, 2008.

Employment contract and stipulated fund level commitment

On August 9, 2002, Gemina signed an employment contract with respondent Bankwise, Inc. (Bankwise) as Marketing Officer with the rank of Senior Manager.
The annual salary was P750,000.00, based on a fifteen-month scheme or P50,000.00 per month, and included a service vehicle for field work.
The contract stipulated a fund level commitment of P100,000,000.00 for the first six (6) months of employment.
The contract further provided that Gemina’s performance relative to his ability to generate deposits would be monitored monthly and reviewed on the sixth month.

Gemina’s allegations of harassment and operational difficulties

Gemina alleged that during his first three (3) months, his performance was satisfactory and he brought in new and former clients.
He claimed that when Bankwise became embroiled in a controversy involving the deposits of the Foreign Retirees Association, he experienced difficulty soliciting new depositors.
To alleviate the situation, he suggested innovations in Bankwise’s marketing strategies to immediate superiors respondents Perfecto Pascua (Pascua) and Osmenio Galapate (Galapate), who then worked out promotional schemes without his participation.
Gemina alleged that the schemes failed to materialize and he was blamed for the failure.
Thereafter, Gemina claimed he was subjected to harassment by Bankwise officers by:

forcing him to file an indefinite leave of absence;
demanding the return of his service vehicle; and
intentionally delaying the release of his salaries and allowances.

Gemina went on leave for eleven (11) days, from January 17 to January 31, 2003.
After his return, his salary for the period of leave was withheld and was released only after he confronted Pascua and Galapate regarding the withholding.
For the payroll period February 1 to 15, 2003, his salary was withheld again and released only on March 23, 2003, but only half the amount due (P12,411.67 instead of P25,000.00).

Bankwise directives and Gemina’s response leading to the constructive dismissal/abandonment controversy

On February 17, 2003, Bankwise, through Pascua and Galapate, wrote Gemina directing him to turn over the service vehicle to Mr. Joselito Hogar, Head of the Corporate Services Department.
On February 19, 2003, Gemina filed a complaint for constructive dismissal against Bankwise.
Bankwise pointed out that the employment contract stipulated a fund level commitment of P100,000,000.00 for the first six (6) months and that performance would be monitored monthly starting from the sixth month.
Bankwise alleged that as of December 27, 2002, almost five (5) months after employment, Gemina had the lowest performance level in the fund management group, generating only P2,915,282.97 out of the P100,000,000.00 stipulated fund level commitment.
Bankwise claimed it called Gemina’s attention to this performance and that, in January 2003, his supervisors sternly warned him that inability to perform his contractual obligation constituted a breach or violation.
Despite the warning, Gemina went on leave for eleven (11) days from January 17 to January 31, 2003.
Bankwise alleged that Gemina incurred absences without leave (AWOL) from February 1 to 15, 2003 and did not inform the bank about the reasons.
Bankwise alleged that Pascua and Galapate tried to contact Gemina about his long absence and requested his return of the company vehicle, but no response occurred.
On February 17, 2003, Pascua and Galapate formally issued a memorandum ordering Gemina to turn over the service vehicle assigned to him.
Gemina refused to surrender the service vehicle.
On the following day, Gemina submitted a call report reflecting his work schedule for February 1 to 18, 2003, but still did not report back to work and instead filed a complaint for illegal dismissal two (2) days after receiving the notice to return the vehicle.

Labor Arbiter ruling

On April 30, 2004, the Labor Arbiter (LA) rendered a Decision holding Gemina was illegally dismissed.
The LA ordered reinstatement without loss of seniority rights and benefits and payment of backwages from the date of dismissal until actual reinstatement, which at the time of decision already amounted to P725,000.00, plus 10% attorneys fees on the total monetary awards due.
The LA dismissed all other claims.
The LA held that Bankwise officers performed acts of harassment constituting constructive dismissal by:

depriving Gemina of duties, benefits and privileges;
delaying the release of Gemina’s salary; and
demanding the return of the service vehicle to make him feel uncomfortable and unwanted.

The LA also held that the fund level commitment was merely a standard for evaluating performance and not the basis of employment; hence, failure to generate the stipulated amount did not automatically mean breach of a contractual duty leading to dismissal.

NLRC ruling

On December 29, 2004, the NLRC reversed the LA Decision.
The NLRC ruled that Gemina was not constructively dismissed but had abandoned his employment.
On salary delay allegations:

The NLRC noted Gemina claimed non-payment for the second quin[n]cina of January 2003 (January 17 to January 31) and for February 1 to 15, 2003.
The NLRC stated Gemina filed a leave of absence for eleven (11) days from January 17 to 31, 2003, and that salary was still on process because the personnel department needed to determine whether Gemina had remaining available accrued leave credits.
The NLRC reasoned that if there were no remaining available leave credits, Gemina would not be entitled to salary covering those days.
For February 1 to 15, 2003, the NLRC found Gemina incurred absences without leave after his leave period and did not submit the necessary attendance records.

On the service vehicle:

The NLRC characterized the service vehicle as temporarily assigned to Gemina as a service unit in the performance of his duties.
It reasoned the demand to return the vehicle was made when Gemina had no attendance record and went AWOL.

On the fund level commitment:

The NLRC held the fund level commitment in Gemina’s contract was untenable to treat as non-contractual, because it was part and parcel of the employment contract.
The NLRC stated Gemina was hired as Marketing Officer in view of his representation that he had a deposit portfolio of more than P100,000,000.00 and would generate deposits.
The NLRC found that after several months, Gemina had not delivered the promised deposit portfolio amount.

On dismissal/discrimination:

The NLRC found no need to ...(Subscriber-Only)

Issues:

Whether Gemina was constructively dismissed based on alleged harassment by Bankwise officers.

Whether acts attributed to Bankwise—forced leave of absence, demand to return the service vehicle, withholding/delaying release of salaries and allowances, and alleged organizational chart changes—amounted to constructive dismissal.
Whether Gemina establis

...(Subscriber-Only)

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