M. PERMICILLO, VS. NLRC (FIRST DIVISION) AND ATLANTIC GULF

Ruling

accordingly dismissed it. He found the "redundancy program" necessary for the companys existence and considered private respondents practice of rehiring of reemploying dismissed employees under the said program as managerial prerogative, made not only in pursuance of the companys policy of giving preference to its dismissed workers, but actually beneficial to the workers as well. Moreover, he held that petitioners acceptance of termination pay and other benefits constituted a waiver of their right to question their dismissal. On appeal, the Third Division of the National Labor Relations Commission reversed the labor arbiters ruling. It found that the company did not incur losses but instead made substantial profits from 1983 to 1986. Consequently it held private respondents guilty of unfair labor practice and illegal dismissal of petitioners and ordered it to reinstate the individual petitioner to their former positions without loss of seniority rights and to pay them full back wages, plus ten percent (10%) of the total award as attorneys fees. [1] The company moved for a consideration. On May 29, 1992, the First Division, to which the case was reassigned after the reorganization of the NLRC under R.A. No. 6715, reconsidered the decision of the Third Division and reinstated the decision of the labor arbiter. It admitted on appeal evidence of losses sustained by the company from 1987 up to 1990. The admission of the evidence strengthened private respondents claim that the petitioners had not been illegally dismissed but had been separated from employment as a result of the "redundancy program" implemented in accordance with the conditions for retrenching, to wit: (1) The losses expected should be substantial and not merely de minimis in extent. (2) The substantial loss apprehended must be reasonably imminent, as such imminence can be perceived objectively and in good faith by the employer. (3) The retrenchment must be reasonably necessary and likely to effectively prevent the expected losses. [2] Petitioners filed a motion for reconsideration but their motion was denied in a resolution promulgated on October 29, 1992. Hence, this petition. Petitioner contend that the NLRC gravely abused its discretion by: (1) admitting evidence of losses, which was not introduced in the proceedings before the labor arbiter; (2) declaring the legality of the redundancy program implemented by private respondent on March 31, 1988; (3) not declaring the private respondent guilty of illegal dismissal and unfair labor practice; (4) not declaring as null and void the quitclaims and releases issued by petitioners. The petition has no merit. It is now settled that the NLRC has the power to admit on appeal additional evidence to show lawful cause for dismissal, provided that the delay in the submission of said evidence is explained and the same clearly proves the employers allegation of a valid cause for dismissing his employees. [3] In the case at bar, evidence of