26TH PERSUASIVE APPEAL_22JUNE16_MANAGEMENT PREROGATIVE IS NOT UNLIMITED_LONG SERVICE AWARD SHOULD HAVE BEEN ACCORDED

JUNE 22, 2016  SALUTATION Dear Chief Justice Sereno, et al: MESSAGE PREFATORY  1     PACKET 11 : LABEL 5.11.1  SHELL                                              Position Paper p.7 No.20 "20. It is respectfully submitted that the reorganization undertaken by the Company is a valid exercise of management prerogative.  It was made imperative by the conditions still persist even up to the present.  The Supreme Court ruled in The Hongkong and Shanghai Banking Corporation Employees Union vs. National Labor Relations Commission and the Hongkong and Shanghai Banking Corporation Ltd. that: "It is a well-settled rule that labor laws do not authorize interference with the employers judgment in the conduct of his business. The Labor Code and its implementing rules do not vest in the labor arbiters nor in the different divisions of the NLRC nor in the courts managerial authority.[16] The hiring, firing, transfer, demotion, and promotion of employees has been traditionally identified as a management prerogative subject to limitations found in the law, a collective bargaining agreement, or in general principles of fair play and justice. This is a function associated with the employers inherent right to control and manage effectively its enterprise. Even as the law is solicitous of the welfare of employees, it must also protect the right of an employer to exercise what are clearly management prerogatives. The free will of management to conduct its own business affairs to achieve its purpose cannot be denied.".[17] REGALADO, J.: As quoted by Atty. Raul Quiroz [16] Almodiel vs. NLRC, et al., G.R. No. 100641, June 14, 1993, 223 SCRA 341. [17] Abbot Laboratories (Phils.), Inc. vs. NLRC, et al., G.R. No. 76959, October 12, 1987, 154 SCRA 713. SHORT NARRATIVE It is a well-settled rule that labor laws do not authorize interference with the employers judgment in the conduct of his business; however, this is not absolute, as this is subject to limitation, as this prerogative, management prerogative  is subject to limitations found in the law, a collective bargaining agreement, or in general principles of fair play and justice.[1] Long service awards to employees who retire after serving the company for a long number of years are part of the benefit package all retiring employees of Shell Tabangao refinery, by practice, are receiving since, May 1978 when I was hired. Under the circumstances, these may be deemed to have ripened into company practice or policy which cannot be peremptorily withdrawn.[2] _Republic Planters Bank v. NLRC, G.R. No. L-79488, September 30, 1988, 166 SCRA 197 Any benefit and supplement being enjoyed by the employees cannot be reduced, diminished, discontinued or eliminated by the employer by virtue of Sec. 10 of the Rules and Regulations Implementing P.D. No. 851 and Art. 100 of the Labor Code which prohibit the diminution or elimination by the employer of the employees' existing benefits.[3] CONDITIONS OF EMPLOYMENT; PROHIBITION AGAINST ELIMINATION OR DIMINUTION OF BENEFITS; BENEFITS GRANTED PURSUANT TO COMPANY PRACTICE OR POLICY CANNOT BE PEREMPTORILY WITHDRAWN.[4] Above is a classic example of out of bounds application of management prerogative as it transgressed limitation prescribed by generally accepted principles of fair play and justice.[1]   Moreover,  As Article 19 of the Civil Code requires, [e]very person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due, and observe honesty and good faith. A violation of such principle constitutes an abuse of rights, a tortuous conduct. We expounded in Sea Commercial Company, Inc. v. Court of Appeals[24] that: The principle of abuse of rights stated in the above article, departs from the classical theory that he who uses a right injures no one. The modern tendency is to depart from the classical and traditional theory, and to grant indemnity for damages in cases where there is an abuse of rights, even when the act is not illicit. Article 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to provide specifically in statutory law. If mere fault or negligence in ones acts can make him liable for damages for injury caused thereby, with more reason should abuse or bad faith make him liable. The absence of good faith is essential to abuse of right. Good faith is an honest intention to abstain from taking any unconscientious advantage of another, even through the forms or technicalities of the law, together with an absence of all information or belief of fact which would render the transaction unconscientious. In business relations, it means good faith as understood by men of affairs. While Article 19 may have been intended as a mere declaration of principle, the cardinal law on human conduct expressed in said article has given rise to certain rules, e.g. that where a person exercises his rights but does so arbitrarily or unjustly or performs his duties in a manner that is not in keeping with honesty and good faith, he opens himself to liability. The elements of an abuse of rights under Article 19 are: (1) there is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another.[25] Principle of Abuse of Rights http://www.abogadomo.com/law-professor/law-professor-archives/principle-of-abuse-of-rights The principle of abuse of rights is found under Articles 19, 20 and 21 of the Civil Code of the Philippines, which states that: Art. 19. “Every person must, in the exercise of his rights and in the performance of his duties, act with justice, give everyone his due and observe honesty and good faith.” Art. 20. “Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.” Art. 21. “Any person who wilfully causes loss or injury to another in manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.” The above articles, depart from the classical theory that “he who uses a right injures no one”. The modern tendency is to depart from the classical and traditional theory, and to grant indemnity for damages in cases where there is an abuse of rights, even when the act is not illicit.  When a right is exercised in a manner which does not conform with the norms enshrined in Article 19 and results in damage to another, a legal wrong is thereby committed for which the wrongdoer must be held responsible. Although the requirements of each provision is different, these three (3) articles are all related to each other. As the eminent Civilist Senator Arturo Tolentino puts it: “With this article (Article 21), combined with articles 19 and 20, the scope of our law on civil wrongs has been very greatly broadened; it has become much more supple and adaptable than the Anglo-American law on torts. It is now difficult to conceive of any malevolent exercise of a right which could not be checked by the application of these articles” (Tolentino, 1 Civil Code of the Philippines 72). There is however, no hard and fast rule which can be applied to determine whether or not the principle of abuse of rights may be invoked. The question of whether or not the principle of abuse of rights has been violated, resulting in damages under Articles 20 and 21 or other applicable provision of law, depends on the circumstances of each case. (Globe Mackay Cable and Radio Corporation vs. Court of Appeals, 176 SCRA 778 [1989]). The elements of an abuse of right under Article 19 are the following: (1) There is a legal right or duty; (2) which is exercised in bad faith; (3) for the sole intent of prejudicing or injuring another. Article 20 speaks of the general sanction for all other provisions of law which do not especially provide for their own sanction (Tolentino, supra, p. 71). Thus, anyone who, whether willfully or negligently, in the exercise of his legal right or duty, causes damage to another, shall indemnify his victim for injuries suffered thereby. Article 21 deals with acts contra bonus mores, and has the following elements: 1) There is an act which is legal; 2) but which is contrary to morals, good custom, public order, or public policy; 3) and it is done with intent to injure. Thus, under any of these three (3) provisions of law, an act which causes injury to another may be made the basis for an award of damages. Of the three articles, Art. 19 was intended to expand the concept of torts by granting adequate legal remedy for the untold number of moral wrongs which is impossible for human foresight to provide specifically in statutory law. If mere fault or negligence in one’s acts can make him liable for damages for injury caused thereby, with more reason should abuse or bad faith make him liable. The absence of good faith is essential to abuse of right. Good faith is an honest intention to abstain from taking any unconscientious advantage of another, even through the forms or technicalities of the law, together with an absence of all information or belief of fact which would render the transaction unconscientious. In business relations, it means good faith as understood by men of affairs. While Article 19 may have been intended as a mere declaration of  principle, the “cardinal law on human conduct” expressed in said article has given rise to certain rules, e.g. that where a person exercises his rights but does so arbitrarily or unjustly or performs his duties in a manner that is not in keeping with honesty and good faith, he opens himself to liability.  Article 19 of the Civil Code, sets certain standards which may be observed not only in the exercise of one’s rights but also in the performance of one’s duties. These standards are the following: to act with justice; to give everyone his due; and to observe honesty and good faith. The law, therefore, recognizes the primordial limitation on all rights: that in their exercise, the norms of human conduct set forth in Article 19 must be observed. A right, though by itself legal because recognized or granted by law as such, may nevertheless become the source of some illegality. Further, may your honors be enlightened and seek solace and inspiration reading the following citation: "SEC 200_ Where-ever law ends, tyranny begins, if the law be transgressed to another's harm; and whosoever in authority exceeds the power given him by the law, and makes use of the force he has under his command, to compass that upon the subject, which the law allows not, ceases in that to be a magistrate; and, acting without authority, may be opposed, as any other man, who by force invades the right of another. This is acknowledged in subordinate magistrates. He that hath authority to seize my person in the street, may be opposed as a thief and a robber, if he endeavours to break into my house to execute a writ, notwithstanding that I know he has such a warrant, and such a legal authority, as will impower him to arrest me abroad. And why this should not hold in the highest, as well as in the most inferior magistrate, I would gladly be informed. Is it reasonable, that the eldest brother, because he has the greatest part of his father's estate, should thereby have a right to take away any of his younger brothers portions? or that a rich man, who possessed a whole country, should from thence have a right to seize, when he pleased, the cottage and garden of his poor neighbour? The being rightfully possessed of great power and riches, exceedingly beyond the greatest part of the sons of Adam, is so far from being an excuse, much less a reason, for rapine and oppression, which the endamaging another without authority is, that it is a great aggravation of it: for the exceeding the bounds of authority is no more a right in a great, than in a petty officer; no more justifiable in a king than a constable; but is so much the worse in him, in that he has more trust put in him, has already a much greater share than the rest of his brethren, and is supposed, from the advantages of his education, employment, and counsellors, to be more knowing in the measures of right and wrong."         _ John Locke : Second Treatise of Civil Government,           Chapter xviii : Of  Tyranny May this message serves as the 26th PERSUASIVE APPEAL for you to reconsider your position with respect to your appreciation of cases GR-183273 and AC-10084 and institute through your own volition disciplinary actions against erring guardians of law in relation to the cases mentioned as preliminary to showing convincing evidences proving that the court is not acting in collusion with Pilipinas Shell Petroleum Corporation,  its officers and managers, jointly and severally,  to perpetuate injustice against me and my family. Otherwise, you all,  are in admission of the act of collusion to perpetuate injustice against me and my family as charged. Sincerely, Antonio L. Buensuceso Jr. FOOTNOTES [1] MANAGEMENT PREROGATIVE IS NOT BOUNDLESS Cruz vs. Medina ( 177 SCRA 565 [1989]) University of Sto. Tomas v. NLRC, 190 SCRA 758 [1990]) [9] Radio Communications of the Philippines, Inc. v. NLRC, 221 SCRA 782 (1993);  Corral v. NLRC, 221 SCRA 693(1993);  Rubberworld (Phils.), Inc. v. NLRC, 175 SCRA 450 (1989) [2] [G.R. No. L-79488. September 30, 1988.] REPUBLIC PLANTERS BANK, Petitioner, v. THE FIRST DIVISION, NATIONAL LABOR RELATIONS COMMISSION, (former) HON. LABOR ARBITER ERNILO PENALOSA, and MACARIO DE GUZMAN, Respondents. 3. ID.; ID.; CONDITIONS OF EMPLOYMENT; WAGES; VESTED RIGHT CANNOT CURTAILED OR DIMINISHED. — Since no new CBA had been entered into between the managerial employees and petitioner upon the expiration of the said 1971-73 CBA, private respondent has acquired a vested right to the said established policy of petitioner in applying the 1971-73 CBA to retiring or resigning executives or managerial employees. Such right cannot be curtailed or diminished. [3] [G.R. No. 117460. January 6, 1997] REPUBLIC PLANTERS BANK now known as PNB - REPUBLIC BANK petitioner, vs. NATIONAL LABOR RELATIONS COMMISSION and ANTONIO G. SANTOS, respondents. A punctilious perusal of the records leads us to the same conclusion, i.e., that PNB-RB has adopted the policy of granting gratuity benefits to its retiring officers based on the salary rate of the next higher rank. It continued to adopt this practice even after the expiration of the 1971-1973 CBA. The grant was consistent and deliberate although petitioner knew fully well that it was not required to give the benefits after the expiration of the 1971-1973 CBA. Under these circumstances, the granting of the gratuity pay on the basis of the salary rate of the rank next higher may be deemed to have ripened into company practice or policy which can no longer be peremptorily withdrawn.[12] Any benefit and supplement being enjoyed by the employees cannot be reduced, diminished, discontinued or eliminated by the employer by virtue of Sec. 10 of the Rules and Regulations Implementing P.D. No. 851 and Art. 100 of the Labor Code which prohibit the diminution or elimination by the employer of the employees' existing benefits.[13]  [4] G.R. No. 102132. March 19, 1993. DAVAO INTEGRATED PORT STEVEDORING SERVICES, petitioner, vs. RUBEN V. ABARQUEZ, in his capacity as an accredited Voluntary Arbitrator and THE ASSOCIATION OF TRADE UNIONS (ATU-TUCP), respondents. Libron, Gaspar & Associates for petitioner. Bansalan B. Metilla for Association of Trade Unions (ATUTUCP) 5. ID.; CONDITIONS OF EMPLOYMENT; PROHIBITION AGAINST ELIMINATION OR DIMINUTION OF BENEFITS; BENEFITS GRANTED PURSUANT TO COMPANY PRACTICE OR POLICY CANNOT BE PEREMPTORILY WITHDRAWN. — Whatever doubt there may have been early on was clearly obliterated when petitioner-company recognized the said privilege and paid its intermittent workers the cash equivalent of the unenjoyed portion of their sick leave with pay benefits during the lifetime of the CBA of October 16, 1985 until three (3) months from its renewal on April 15, 1989. Well-settled is it that the said privilege of commutation or conversion to cash, being an existing benefit, the petitioner-company may not unilaterally withdraw, or diminish such benefits. It is a fact that petitioner-company had, on several instances in the past, granted and paid the cash equivalent of the unenjoyed portion of the sick leave benefits of some intermittent workers. Under the circumstances, these may be deemed to have ripened into company practice or policy which cannot be peremptorily withdrawn. FARTHER, Diminution of benefits is the unilateral withdrawal by the employer of benefits already enjoyed by the employees. There is diminution of benefits when it is shown that: (1) the grant or benefit is founded on a policy or has ripened into a practice over a long period; (2) the practice is consistent and deliberate; (3) the practice is not due to error in the construction or application of a doubtful or difficult question of law; and (4) the diminution or discontinuance is done unilaterally by the employer.[27] [[27] C.A. Azucena, THE LABOR CODE WITH COMMENTS AND CASES 222 (2004).