MERCADO, Emelita V.

Re:      Habitual Tardiness; Appeal

x------------------------------------------x

 

 

 

RESOLUTION NO.  01-0236

 

 

            Emelita V. Mercado, Librarian III, The National Library, Ermita, Manila, appeals the decision dated November 5, 1999 of Director Adoracion Mendoza-Bolos, same office, which found her guilty of Habitual Tardiness and imposing upon her the penalty of six (6) months suspension without pay.

 

            The Decision reads, in part, as follows:

 

 

            “On October 5, 1999, Ms. Emelita V. Mercado, Librarian III, this Office is charged of habitual tardiness for incurring absences from January 1995 to September 1999 as many times as indicated below:

 

x x x

 

            “In her answer, she claims as follows:

 

“1. That this formal charge is similar to the Moto Propio administrative complaint dated August 25, 1997;

 

“2. That I answered said complaint dated 26 August 1997 which the Director did not act on it, her silence is tantamount to accepting my explanation and because of this Director is stopped from further continuing this case;

 

“3. That reviving the same constitute an endless litigation;

 

x x x

“5. That there is an unwritten understanding in this Office that for humanitarian reasons tardiness not exceeding 15 minutes will not be counted and only those lates over 15 minutes will be considered violation of the Civil Service Commission law;

 

“6. That the Director is giving this leeway to show her compassion to her employees;

 

“7. That the director also emphasized that tardiness for an hour is intentional and can not be forgiven;

 

x x x

 

“9. That considering the above-mentioned facts I am not eligible for the charge against me.

 

x x x

 

            “Having failed to elect a formal investigation she is deemed to have waived her right thereto. Moreover, the number of times she incurred tardiness are shown clearly by the records which she did not refute or deny.

 

            “That there was a similar complaint in 1997 against the respondent is not an impediment to charge her again for a similar offense. Besides, the former complaint was for respondents’ habitual tardiness in April, May and June 1997, or a period of three (3) months only, for which she was verbally warned not to commit the same offense in the future. The instant case involves her habitual tardiness from January 1995 to September 1999 wherein she incurred tardiness totaling 206, 170, 164, 126 and 117 each year, respectively, thereby, belying her claim that she made ‘it a point not to commit the same violation.’

 

            “Her reference to ‘an unwritten understanding in this Office that for humanitarian reasons, tardiness not exceeding 15 minutes will not be counted and only those lates over 15 minutes will be considered violation of the Civil Service Commission Law’ is not meritorious, because there is no such ‘unwritten understanding’, and if at all, it cannot prevail over the explicit provision of Sec. 23(q) of Civil Service Commission Omnibus Rules, pertinent portion of which is quoted in the Formal Charge, and is fully quoted hereunder:

x x x

 

            “Wherefore, Ms. Emelita Mercado is hereby found guilty of habitual tardiness, a grave offense, and she is hereby meted the penalty of SUSPENSION for six (6) months without pay effective upon receipt hereof.”

 

 

            The material portions of Mercado’s appeal are, as follows:

 

 

            “3. It has been the policy of the office since the time of predecessor of Director Bolos, the then Director Muñasque that an employee is considered late or tardy when she arrives in the office beyond fifteen minutes of her regular time in the morning and in the afternoon.

 

            “3.1. This policy has been repeatedly announced by the Director Bolos, since she assumed the position as Director of The National Library every Monday of the week as a reminder to the employees.

 

            “4. With this policy of the office, I saw to it that I would arrive not later than fifteen minutes of my regular time as contained in the Daily Time Record from 1998-1999.

 

            “4.1 As appearing in my Daily Time Record in 1998 to 1999 the number of my tardiness are hereunder itemized in the observance to the fifteen minutes grace period.

 

x x x

 

            “WHEREFORE, premises considered, it is most respectfully prayed unto the Honorable Commission to reverse and set aside the decision of Director Bolos and to immediately reinstate the herein appellant to her position.”

 

 

            When required to comment on the appeal, Director Mendoza-Bolos stated that:

 

            “4. With respect to Ms. Mercado’s allegations in par. 4 and her enumerations in par. 4.1 of the number of times she was tardy for the years 1997 to 1999, the same cannot be favorably considered as a defense to warrant her exoneration. Firstly, the charge against her is not only for her tardiness in 1997 to 1999 but from January, 1995 to September, 1999 where she incurred an aggregate of 206, 170, 164, 126 and 116 number of times of tardiness each year, respectively. It will please be noted from the tabulation in the subject appealed DECISION that the number of times of her tardiness in 1995 ranged from 12 to 20 times each month; from 7 to 22 in 1996; from 6 to 21 in 1997; from 5 to 16 in 1998 and from 7 to 15 times in 1999, or an average of 16, 14.5, 10.5 and 11 times tardy each month of the year. Secondly, granting arguendo the number of her tardiness she reflected in par. 4.1 of her Memorandum wherein she only counted her tardiness exceeding 15 minutes, as correct, still she exceeded twice in 1999 the ‘ten times a month tardiness’ provided in Sec. 23(q) of the CSC Omnibus Rules; three times in 1998 and again three times in 1997. Thirdly, the aforesaid CSC Omnibus Rules is quite emphatic thus: Any employee shall be considered habitually tardy if he incurs tardiness, REGARDLESS OF THE NUMBER OF MINUTES, ten (10) times a month x x x’

 

x x x

 

            “It is the humble submission of this Office that the appeal of Ms. Mercado is bereft of merit and that the subject decision is duly supported by substantial evidence and is in accordance with the law and the rules.”

 

            Additionally, Director Mendoza-Bolos argued that the appeal was filed out of time and that Mercado has not made any assignment of errors in her appeal.

 

Records show that on October 5, 1999, Director Adoracion Mendoza-Bolos of The National Library, Ermita, Manila, issued a Formal Charge against Emelita V. Mercado, Librarian III, same office, for Habitual Tardiness. In the Formal Charge, Mercado allegedly committed Habitual Tardiness, as follows:

 

                                                            1995   1996   1997   1998   1999

 

“January                     -           19        22        14        10        15

“February                   -           12        15        18        7          13

“March                        -           19        18        15        4          14

“April                           -           16        16        15        7          15

“May                           -           20        18        14        11        12

“June                          -           18        13        16        10        15

“July                            -           18        7          21        5          11

“August                      -           20        10        6          15        8

“September               -           15        12        8          12        14

“October                     -           17        10        11        16        -

“November                -           12        14        16        15        -

“December                -           20        15        10        14        -

 

Mercado submitted her Affidavit-Answer dated October 15, 1999. Obviously not satisfied with Mercado’s answer, Director Mendoza-Bolos issued the assailed decision on November 5, 1999. Mercado’s Motion for Reconsideration was denied in a Resolution dated November 11, 1999.

 

            Hence, this appeal.

 

            Civil Service Commission Memorandum Circular No. 23, series of 1998 dated June 15, 1998, categorically provides that:

 

            “Any employee shall be considered habitually tardy if he incurs tardiness, regardless of the number of minutes, ten (10) times a month for at least two (2) months in a semester or at least two (2) consecutive months during the year.”

 

            The above-quoted provision is clear. Habitual Tardiness may be committed in two (2) ways, viz.:

 

1.         When the employee incurs tardiness ten (10) times a month for at least two (2) months in a semester;

 

2.         When the employee incurs tardiness of ten (10) times for two (2) consecutive months during the year.

 

In both instances, the number of minutes of tardiness in not important. Thus, an employee who is late in coming to work even for one (1) minute only is tardy. The number of tardiness committed by Mercado is substantial evidence to prove her guilt of the offense charged. She has not denied the number of tardiness that appeared in the Formal Charge. Her only defense is that the National Library has a policy that gives its employees a fifteen (15) minute grace period before being considered tardy, which the Commission finds to be without legal basis.

 

Aside from the fact that this policy was vehemently denied by Director Mendoza-Bolos, there is also CSC Memorandum Circular (MC) No. 5, series of 1997, which categorically provides that:

 

“Pursuant to CSC Resolution No. 97-0406 dated January 28, 1997, the Civil Service Commission recognizes and affirms the authority of Heads of Departments, Agencies, Bureaus and Offices of the National Government, Local Government and Government-Owned and Controlled Corporations with Original Charters and State Colleges and Universities, to promulgate their own internal rules and regulations on attendance and punctuality which will require their employees to incur less absences and tardiness than the frequency allowed under existing Civil Service rules and regulations. Violations of the rules issued by heads of offices shall constitute the offense of Violation of Reasonable Office Rules and Regulations, punishable with reprimand on the first offense, suspension for one (1) to thirty (30) days on the second offense, and dismissal on the third offense.”

 

A closer reading of the said MC would readily show that the authority conferred to heads of agencies is to promulgate a more strict rule on tardiness and absences which would require their employees to incur less absences and tardiness than that provided for under existing Civil Service Law and Rules. Heads of Agencies are not authorized to promulgate rules which would be more lenient than that provided under the rules. Hence, unless an office is allowed flexible working hours by the Commission, the head of office cannot adopt a policy that would give its employees a fifteen (15) minute grace period reckoned from the start of the working day before they are considered as tardy.

 

However, we find that Director Mendoza-Bolos committed an error with respect to the penalty imposed on Mercado. Under Section 52(c)(4), Rule IV of the Uniform Rules on Administrative Cases in the Civil Service, Habitual Tardiness is classified as a light offense and imposable with the penalty of reprimand for the first offense; suspension of one (1) to thirty (30) days for the second offense; and, dismissal for the third offense.

 

            The provisions of the Uniform Rules, which became effective on September 27, 1999, should have been used by Director Mendoza-Bolos on the implementation of the proper penalty considering that it is a procedural rule which applies to pending cases. Moreover, the schedule of penalties provided under the Uniform Rules is a mere reiteration of that provided under Civil Service Commission Memorandum Circular No. 23, series of 1998.

 

            While the formal charge may show that Mercado has committed Habitual Tardiness many times over, she was not charged for each acts of Habitual Tardiness. She was charged with only one count of Habitual Tardiness committed from 1995-1999. Hence, she can only be found liable for one count of Habitual Tardiness.

 

            Moreover, while there is a statement in the Decision appealed from that Mercado was previously verbally warned regarding her Habitual Tardiness, the same cannot be considered as her first offense and the present case subject of this appeal as the second offense so that the penalty of one (1) to thirty (30) days suspension should be imposed. There is no showing that Mercado was previously charged with, and found guilty of, Habitual Tardiness. Hence, there is no first offense to speak of.

 

            WHEREFORE, the appeal of Emelita V. Mercado is hereby DISMISSED. However, the penalty of six (6) months suspension without pay is modified and lowered to reprimand.

 

            Quezon City,  January 24, 2001

 

 

(OB)

CORAZON ALMA G. DE LEON

Chairman

 

(SIGNED)

JOSE F. ERESTAIN, JR.

Commissioner

 

(SIGNED)

J. WALDEMAR V. VALMORES

Commissioner

 

Attested by:

 

(SIGNED)

ARIEL G. RONQUILLO

Director III

 

 

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