SC: Employee can't be fired for online post if?

This is the case of Interadent v. Simbillo (G.R. No. 207315, November 23, 2016).

Simbillo worked at Interadent as a rank-and-file employee from May 2, 2004 up to March 2006. In April 2008, she was rehired by Interadent as Accounting Manager. On April 16, 2010, she was promoted to the position of Finance and Accounting Manager. She was also Interadent’s Treasurer upon being elected by the Board of Directors on March 31, 2010.

On July 23, 2010, Interadent sought a company-wide implementation of the following security measures: body frisking and bag/personal items inspection of all employees upon ingress and egress of office, disconnection of all USB ports and prohibition of cellular phone usage. The immediate implementation of these security procedures was brought about by an alleged leakage of security information uncovered by Interadent's external auditors.

On July 28, 2010, upon the directive of Bantegui, all network and internet connections in Interadent's Accounting Department were removed and disabled. Simbillo's electronic mail (email) account was likewise suspended.

On July 29, 2010, petitioners served Simbillo a Memorandum (Notice to Explain) requiring her to submit a written explanation and to attend an administrative hearing on August 2, 2010, regarding a message she posted on her Facebook account "referring to company concerns with the Bureau of Internal Revenue (BIR) and insulting statements against a co-worker." In the Notice to Explain, Simbillo was reminded that as Treasurer, as well as Finance and Accounting Manager, he should observe the highest degree of confidentiality in handling sensitive information. She was preventively suspended for seven days effective July 29, 2010 to August 6, 2010.

On the following day, Simbillo, through counsel, wrote a reply-letter arguing that she was already constructively dismissed even prior to her receipt of the Notice to Explain considering the discriminatory acts committed by petitioners starting July 23, 2010 when certain security procedures were directed exclusively and solely against her. Simbillo claimed that the Notice to Explain was defective and was only used to disguise the intent to dismiss her; hence there was no need for her to submit an answer or attend the hearing. Simbillo further asserted that she committed no violation of any rule or law relative to the message she posted on her personal and private Facebook account that would justify any disciplinary action.

In a letter dated August 6, 2010, petitioners extended Simbillo's suspension up to August 25, 2010 in view of her failure to submit a written explanation and to attend the scheduled hearing. In a reply-letter dated August 9, 2010, Simbillo reiterated her claim of constructive dismissal and that there was no need for her to answer and attend the hearing.

On August 9, 2010, Simbillo filed with the Labor Arbiter a Complaint for constructive illegal dismissal, non-payment of service incentive leave pay, 13th month pay, illegal suspension, claims for moral and exemplary damages and attorney's fees against petitioners.

On August 24, 2010, petitioners issued a Second Notice informing Simbillo of her termination from service effective August 25, 2010 on the ground of loss of trust and confidence. Petitioners found Simbillo to have disclosed sensitive and confidential information when she posted on her Facebook account on July 15, 2010, the following:
Sana maisip din nila na ang kompanya kailangan ng mga taong di tulad nila, nagtatrabaho at di puro #$,*% ang pinaggagagawa, na kapag super demotivated na yung tao nayun baka iwan narin nya ang kawawang kumpanya na pinagpepyestahan ng mga b_i_r_. Wala na ngang credibility wala pang conscience, portraying so respectable and so religious pa. Hay naku talaga, nakakasuka, puro nalang animus lucrandi ang laman ng isip.
Supreme Court's Ruling

The act alleged to have caused the loss of trust and confidence of petitioners in Simbillo was her Facebook post which supposedly suggests that Interadent was being "feasted on" by the BIR and also contains insulting statements against a co-worker and hence has compromised the reputation of the company. According to petitioners, there was disclosure of confidential information that gives the impression that Interadent is under investigation by the BIR for irregular transactions. However, we agree with the CA's observation that the Facebook entry did not contain any corporate record or any confidential information. Otherwise stated, there was really no actual leakage of information. No company information or corporate record was divulged by Simbillo.Simbillo's failure to substantiate her claim that the Facebook entry was posted for a friend who consulted her on a predicament she has with her company and that the term "b_i_r_" represents ''bwitre" will not weaken her case against petitioners. It must be emphasized at this point that in illegal dismissal cases, the burden of proof is upon the employer to show that the employee's dismissal was for a valid cause. ''The employer's case succeeds or fails on the strength of its evidence and not on the weakness of that adduced by the employee, in keeping with the principle that the scales of justice should be tilted in favor of the latter in case of doubt in the evidence presented by them."

The Facebook entry did not mention any specific name of employer/company/ government agency or person. Contrary to petitioners' insistence, the intended subject matter was not clearly identifiable. As acknowledged by petitioners themselves, Simbillo's Facebook account contained a list of her former and present employers. If anything, the entry would merely merit some suspicion on the part of Interadent being the present employer, but it would be far-fetched to conclude that Interadent may be involved in anomalous transactions with the BIR. Clearly, petitioners' theory was based on mere speculations.

If at all, Simbillo can only be said to have acted "carelessly, thoughtlessly, heedlessly or inadvertently'' in making such a comment on Facebook; however, such would not amount to loss of trust and confidence as to justify the termination of her employment. When the breach of trust or loss of confidence conjectured upon is not borne by clearly established facts, as in this case, such dismissal on the ground of loss of trust and confidence cannot be upheld.

Petitioners' contention that Simbillo's second offense of divulging confidential company information merits her termination deserves scant consideration. Other than self-serving allegations of petitioners, there was no concrete proof that Simbillo had a past infraction involving disclosure of confidential information of the company. If indeed Simbillo has been found guilty for not being trustworthy due to an incident that happened in July 2009 as alleged by petitioners, she should not have been promoted to a higher position as Finance and Accounting Manager in April 2010 and elected as Treasurer in March 2010. Moreover, she was given salary and merit increases for the period covering June 2009-May 2010, which is an indication of her high performance rating.

All told, we find no reversible error on the CA in finding that Simbillo was illegally dismissed. The allegation of loss of trust and confidence was not supported by substantial evidence, hence, we find Simbillo's dismissal unjustified. A lighter penalty would have sufficed for Simbillo's laxity and carelessness. As this Court has held, termination of employment is a drastic measure reserved for the most serious of offenses.

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