Republic of the
DUTY FREE PHILIPPINES SERVICES, INC.,
- versus -
MANOLITO Q. TRIA,
G.R. No. 174809
VELASCO, JR., J., Chairperson,
June 27, 2012
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
D E C I S I O N
Assailed in this petition for review
on certiorari under Rule 45 of the
Rules of Court are the Court of Appeals (CA) Decision
The facts, as found by the CA, are as follows:
Petitioner Duty Free Philippines Services, Inc. is a manpower agency that provides personnel to Duty Free Philippines (DFP).
In an Audit Report, dated January 16, 1998, it was revealed that 1,020 packs of Marlboro bearing Merchandise Code No. 020101 under WRR No. 36-04032 were not included in the condemnation proceedings held on December 27, 1996 and that there were “glaring discrepancies” in the related documents which “indicate a malicious attempt to conceal an anomalous irregularity.” The relevant Request for Condemnation was found to have been fabricated and all signatories therein, namely, Ed Garcia, Stockkeeper; Catherino A. Bero, DIU Supervisor; and Constantino L. Cruz, were held “accountable for the irregular loss of the unaccounted Marlboro KS Pack of 5…”
After further investigation, it was
discovered that the subject merchandise was illegally brought out of the
warehouse and it was made to appear that in all the documents prepared said
goods were legally condemned on
Consequently, the Discipline Committee requested [respondent] to submit a written reply/explanation regarding the findings in the Audit Report and the allegations of Garcia.
[Respondent] denied his participation in the illegal transaction. Although he admitted that he instructed Garcia to look for a van, it was for the purpose of transferring the damaged merchandise from the main warehouse to the proper warehouse for damaged goods.
On August 27, 1998, the DFP Discipline Committee [DFPDC] issued a Joint Resolution holding [respondent] “GUILTY OF DISHONESTY for (his) direct participation in the fake condemnation” and pilferage of the missing 1,020 Marlboro Pack of 5’s cigarettes … and orders (his) DISMISSAL from the service for cause and for loss of trust and confidence, with forfeiture of all rights and privileges due them from the company, except earned salaries and leave credits.”
Aggrieved, [respondent] filed a Complaint against Petitioner for Illegal Dismissal and for payment of backwages, attorney’s fees and damages.
WHEREFORE, all the foregoing premises being
considered, judgment is hereby rendered ordering the respondent company to
reinstate complainant to his former position with all the rights, privileges,
and benefits appertaining thereto, including seniority, plus full backwages
which as of
P172,672.50. Further, the respondent is ordered to pay
complainant the equivalent of ten percent (10%) of the total backwages as and
for attorney’s fees.
The claim for damages is denied for lack of merit.
When petitioner elevated the case to the CA, it denied for the first time the existence of employer-employee relationship and pointed to DFP as respondent’s real employer. The appellate court, however, considered said defense barred by estoppel for its failure to raise the defense before the LA and the NLRC. It nonetheless ruled that although DFPDC conducted the investigation, petitioner’s dismissal letter effected respondent’s termination from employment. On the validity of respondent’s dismissal from employment, the CA respected the LA and NLRC findings and reached the same conclusion that respondent was indeed illegally dismissed from employment. Petitioner’s motion for reconsideration was likewise denied in a Resolution dated September 21, 2006.
Undaunted, petitioner elevates the case before the Court in this petition for review on certiorari based on the following grounds:
THE COURT OF APPEALS GRAVELY ERRED WHEN IT RULED THAT PETITIONER DFPSI IS LIABLE FOR ILLEGAL DISMISSAL AND DECLARE THAT:
THE DIRECT EMPLOYER OF RESPONDENT INSTEAD OF DUTY FREE
B. THE ISSUE AS TO WHO TERMINATED RESPONDENT WAS RAISED ONLY FOR THE FIRST TIME ON APPEAL.
THE COURT OF APPEALS GRAVELY ERRED AND RULED CONTRARY TO LAW AND JURISPRUDENCE WHEN IT FAILED TO RULE ON THE LIABILITY OF DFP, AS AN INDISPENSABLE PARTY TO THE COMPLAINT FOR ILLEGAL DISMISSAL.
THE COURT OF APPEALS GRAVELY ERRED AND RULED CONTRARY TO LAW AND JURISPRUDENCE WHEN IT HELD THAT RESPONDENT’S EMPLOYMENT WAS ILLEGALLY TERMINATED.
Petitioner insists that the CA erred in not considering its argument that it is not the employer of respondent. It likewise faults the CA in not ruling on the liability of DFP as an indispensable party.
We cannot sustain petitioner’s contention. In its Position Paper, petitioner highlighted respondent’s complicity and involvement in the alleged “fake condemnation” of damaged cigarettes as found by the DFPDC. This, according to petitioner, was a just cause for terminating an employee.
In its Motion for Reconsideration and/or Appeal, petitioner insisted that there was basis for the termination of respondent’s employment. Even in its Supplemental Appeal with the NLRC, petitioner reiterated its stand that respondent was terminated for a just and valid cause and due process was strictly observed in his dismissal. It further questioned the reinstatement aspect of the LA decision allegedly because of strained relations between them.
With the aforesaid pleadings submitted by petitioner, together with the corresponding pleadings filed by respondent, the LA and the NLRC declared the dismissal of respondent illegal. These decisions were premised on the finding that there was an employer-employee relationship.  Nowhere in said pleadings did petitioner deny the existence of said relationship. Rather, the line of its defense impliedly admitted said relationship. The issue of illegal dismissal would have been irrelevant had there been no employer-employee relationship in the first place.
It was only in petitioner’s Petition for Certiorari before the CA did it impute liability on DFP as respondent’s direct employer and as the entity who conducted the investigation and initiated respondent’s termination proceedings. Obviously, petitioner changed its theory when it elevated the NLRC decision to the CA. The appellate court, therefore, aptly refused to consider the new theory offered by petitioner in its petition. As the object of the pleadings is to draw the lines of battle, so to speak, between the litigants, and to indicate fairly the nature of the claims or defenses of both parties, a party cannot subsequently take a position contrary to, or inconsistent, with its pleadings. It is a matter of law that when a party adopts a particular theory and the case is tried and decided upon that theory in the court below, he will not be permitted to change his theory on appeal. The case will be reviewed and decided on that theory and not approached and resolved from a different point of view.
The review of labor cases is confined to questions of jurisdiction or grave abuse of discretion. The alleged absence of employer-employee relationship cannot be raised for the first time on appeal. The resolution of this issue requires the admission and calibration of evidence and the LA and the NLRC did not pass upon it in their decisions. We cannot permit petitioner to change its theory on appeal. It would be unfair to the adverse party who would have no more opportunity to present further evidence, material to the new theory, which it could have done had it been aware earlier of the new theory before the LA and the NLRC. More so in this case as the supposed employer of respondent which is DFP was not and is not a party to the present case.
In Pamplona Plantation Company v. Acosta, petitioner therein raised for the first time in its appeal to the NLRC that respondents therein were not its employees but of another company. In brushing aside this defense, the Court held:
x x x Petitioner is estopped from denying that respondents worked for it. In the first place, it never raised this defense in the proceedings before the Labor Arbiter. Notably, the defense it raised pertained to the nature of respondents’ employment, i.e., whether they are seasonal employees, contractors, or worked under the pakyaw system. Thus, in its Position Paper, petitioner alleged that some of the respondents are coconut filers and copra hookers or sakadors; some are seasonal employees who worked as scoopers or lugiteros; some are contractors; and some worked under the pakyaw system. In support of these allegations, petitioner even presented the company’s payroll which will allegedly prove its allegations.
By setting forth these defenses, petitioner, in effect, admitted that respondents worked for it, albeit in different capacities. Such allegations are negative pregnant – denials pregnant with the admission of the substantial facts in the pleading responded to which are not squarely denied, and amounts to an acknowledgment that respondents were indeed employed by petitioner.  (Emphasis supplied.)
Also in Telephone Engineering & Service Co., Inc. v. WCC, et al., the Court held that the lack of employer-employee relationship is a matter of defense that the employer should properly raise in the proceedings below. The determination of this relationship involves a finding of fact, which is conclusive and binding and not subject to review by this Court.
In this case, petitioner insisted that respondent was dismissed from employment for cause and after the observance of the proper procedure for termination. Consequently, petitioner cannot now deny that respondent is its employee. While indeed, jurisdiction cannot be conferred by acts or omission of the parties, petitioner’s belated denial that it is the employer of respondent is obviously an afterthought, a devise to defeat the law and evade its obligations.
It is a fundamental rule of procedure that higher courts are precluded from entertaining matters neither alleged in the pleadings nor raised during the proceedings below, but ventilated for the first time only in a motion for reconsideration or on appeal. Petitioner is bound by its submissions that respondent is its employee and it should not be permitted to change its theory. Such change of theory cannot be tolerated on appeal, not due to the strict application of procedural rules, but as a matter of fairness.
As to the legality of respondent’s dismissal, it is well settled that under Rule 45 of the Rules of Court, only questions of law may be raised, the reason being that this Court is not a trier of facts, and it is not for this Court to reexamine and reevaluate the evidence on record. Findings of fact and conclusions of the Labor Arbiter as well as those of the NLRC or, for that matter, any other adjudicative body which can be considered as a trier of facts on specific matters within its field of expertise, should be considered as binding and conclusive upon the appellate courts.
Petitioner dismissed respondent from employment based on the recommendation of the DFPDC holding respondent guilty of dishonesty for his direct participation in the “fake condemnation” and “pilferage” of the missing 1,020 Marlboro Pack of 5 cigarettes. Respondent was implicated in the anomalous transaction by his co-employees who pointed to the former as the one who ordered the other suspects to look for a vehicle that would be used to transport the subject cigarettes. This, according to the DFPDC, was odd and strange. With this act alone and by reason of his position, the DFPDC concluded, and affirmed by petitioner, that respondent definitely had knowledge of the “fake condemnation.” From these circumstances, petitioner sustained the findings of dishonesty and dismissed respondent from employment.
WHEREFORE, premises considered, the petition
is DENIED for lack of merit. The
Court of Appeals Decision dated
DIOSDADO M. PERALTA
PRESBITERO J. VELASCO, JR.
LUCAS P. BERSAMIN ROBERTO A. ABAD
Associate Justice Associate Justice
ESTELA M. PERLAS-BERNABE
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.
PRESBITERO J. VELASCO, JR.
Chairperson, Third Division
I certify that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court.
ANTONIO T. CARPIO
Senior Associate Justice
(Per Section 12, R.A. 296,
The Judiciary Act of 1948, as amended)
* Designated Acting Member in lieu
of Associate Justice Jose Catral Mendoza, per Special Order No. 1241 dated
 Penned by Associate Justice Noel G. Tijam, with Associate Justices Elvi John S. Asuncion and Mariflor P. Punzalan Castillo, concurring; rollo, pp. 33-41.
 Rollo, p. 44.
 Penned by Commissioner Tito F.
Genilo, with Presiding Commissioner
 Rollo, pp. 34-36.
 CA rollo, pp. 49-55.
 Embodied in a Decision dated
 CA rollo, pp. 35-37.
 Rollo, p. 37.
 CA rollo, pp. 59-72.
 CAPANELA v. NLRC, 311 Phil. 744, 755 (1995).
 Cocomangas Hotel Beach Resort v. Visca, G.R. No. 167045, August 29, 2008, 563 SCRA 705, 718; Manila Electric Company v. Benamira, G.R. No. 145271, July 14, 2005, 463 SCRA 331, 348-349.
 Magnolia Dairy Products Corp. v. NLRC, 322 Phil. 508, 516 (1996).
 China Air Lines, Ltd. v. Court of Appeals, G.R. Nos. 45985 and 46036, May 18, 1990, 185 SCRA 449, 458.
 G.R. No. 153193,
 191 Phil. 663 (1981).
 Telephone Engineering & Service Co., Inc. v. WCC, et al., supra, at 669.
 Manila Electric Company v. Benamira, supra note 18, at 349.
 CAPANELA v. NLRC, supra note 17, at 755-756.
 Rollo, p. 35.
 Litton Mills, Inc. v. Sales, 481 Phil. 73, 88 (2004).
 Century Canning Corporation v. Ramil, G.R. No. 171630, August 8, 2010, 627 SCRA 192, 202.