| CONTACT: |
| Supreme Court of the Philippines Library Services, Padre Faura, Ermita, Manila, Philippines 1000 |
| (632) 8524-2706 |
| libraryservices.sc@judiciary.gov.ph |
108 OG No. 35, 4466 (August 27, 2012)
SPECIAL THIRTEENTH DIVISION
[ SP No. 109097, January 28, 2010 ]
7TH SECURITY & INVESTIGATION SERVICE INC. AND/OR LAWRENCE T. TEJADA. PETITIONERS, VS. NATIONAL LABOR RELATIONS COMMISSION (SIXTH DIVISION). DENMARK J. MINDANA AND RENE M. DELOS SANTOS, RESPONDENTS.*
D E C I S I O N
Before Us is a Petition for Certiorari[1] under Rule 65 of the Rules of Court assailing the Decision[2] dated January 16, 2009 of public respondent National Labor Relations Commission (NLRC), Sixth Division, which affirmed the Decision dated September 15, 2007 of the Labor Arbiter finding that private respondents were constructively dismissed from work; and, the Resolution[3] dated March 27, 2009 denying the motion for reconsideration thereof.
THE FACTS
In their Position Paper[4], private respondents Denmark J. Mindaña and Renie M. Delos Santos alleged that they were hired as security guards by petitioner 7th Security & Investigation Service, Inc. in February 2004 and on January 14, 2006, respectively. Delos Santos was immediately detailed at the Molave Trading, Inc. (MTI) located at 891 EDSA, Diliman, Quezon City while Mindaña was assigned there on February 23, 2006. They were required to render work for twelve (12) hours per day, including Sundays and holidays with a daily wage of P322.00.
On July 14, 2006, private respondents were summoned by petitioner Lawrence T. Tejada, petitioner security agency's Administrative and Personnel Manager, to report to his office. Petitioner Tejada compelled private respondents to sign a document containing a false statement that petitioner agency was paying them all the labor standard benefits mandated by law. Private respondents refused to sign because they were in fact underpaid. Due to their refusal, petitioners threatened private respondents that they would not be given a new assignment.
On July 15, 2006, petitioners reiterated the demand for private respondents to sign the false statement. This time a Duty Detail Order was shown to them by Inspector Nicanor G. Gabriel of the security agency. Upon the instructions of petitioner Tejada, Inspector Gabriel told private respondents that they could immediately render duty to Forever Living Products Philippines located at Ortigas Avenue, Greenhills, San Juan, Metro Manila provided they sign first the previous document containing untruthful statement with regard their benefits. Private respondents still vehemently refused.[5] Hence, petitioner agency did not give them a new assignment.
Aggrieved, private respondents went to the NLRC to file a complaint for illegal dismissal, underpayment of salary and nonpayment of overtime pay, holiday pay and night shift differential. However, they were advised that there was no illegal dismissal yet since petitioner agency was allowed under the law to put them on a "floating status" for six (6) months. Private respondents then pursued only the money claims.[6]
On December 14, 2006, the Labor Arbiter ruled in favor of private respondents and directed petitioner agency and its client MTI to solidarily pay private respondents Mindaña and Delos Santos their unpaid overtime pay in the amount of P19,422.44 and P26,297.64, respectively.[7]
On March 22, 2007, petitioner agency and MTI fully satisfied the money judgment, An Admission of Satisfaction of Judgment[8] of even date was executed by private respondents.
After the lapse of six (6) months, without petitioner agency giving them a new assignment, private respondents filed the instant complaint for illegal dismissal. They prayed for the payment of separation pay in leiu of reinstatement, holiday pay, service incentive leave pay and 13th month pay.[9]
In their traverse, petitioners argued that private respondents were not unjustly terminated. Instead, private respondents abandoned their post when they failed to report in their new place of assignment. Contrary to private respondents' claim, petitioner agency in fact detailed private respondents to Forever Living Products Philippines. However, in an utter display of insubordination, private respondents refused to be transferred thereto and insisted that they continue to stay at their former post in MTI, Diliman, Quezon City. On July 17, 2006, private respondents did not report to their new post and went on absence without leave (AWOL). Notices[10] of abandonment were then sent to private respondents last known address.[11]
In a Decision dated September 15, 2007, the Labor Arbiter held that private respondents were constructively dismissed from work. Petitioners were held liable for full backwages from July 15, 2006 to September 15, 2007 and separation pay of one month salary for every year of service to private respondents Mindaña and Delos Santos in the total amount of P213,081.13 and P404,442.62, respectively. The decretal portion of the decision reads:
In deciding the case in favor of the complainants-appellees, the Labor Arbiter found as follows:
Hence, the instant petition in which petitioners raised the following grounds[16] for its allowance, to wit:
THE ISSUE
The pivotal issue to be resolved is whether or not public respondent NLRC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in affirming the Labor Arbiter's ruling that private respondents were constructively dismissed from work.
THE RULING
The petition is bereft of merit.
Petitioners contend that public respondent NLRC gravely abused its discretion in affirming the Labor Arbiter's finding that private respondents were constructively dismissed from work. Other than the bare allegation of private respondents that they were made to sign a spurious document by petitioners, there was nothing in the records to support the same. On the other hand, private respondents were the ones who deliberately abandoned their job. While they were given a new assignment at Forever Living Products Philippines, private respondents continuously failed to render work thereat. Hence, private respondents were not illegally dismissed.
We are not persuaded.
At the outset, it may be well to state that factual findings of the NLRC, when supported by substantial evidence, are accorded great respect and even finality by the appellate courts.[17] The reason for this is that a quasi-judicial agency like the NLRC has acquired a unique expertise because its jurisdiction is confined to specific matters.[18] Here, We find no compelling reason to depart from the disquisition made by public respondent NLRC.
In Fernando Go vs. Court of Appeals, et al.[19], the Supreme Court held that constructive dismissal exists where there is a cessation of work because continued employment is rendered impossible, unreasonable or unlikely. It is likewise defined as an involuntary resignation resorted to when there is a demotion in rank and/or diminution in pay; or when a clear discrimination, insensibility or disdain by an employer becomes so unbearable to the employee.[20] Further, the employer has the burden of proving that the transfer of an employee was for a valid and legitimate ground such as genuine business necessity. Failure of the employer to overcome this burden of proof, the employee's transfer and demotion shall no doubt be tantamount to illegal constructive dismissal.[21]
In the case at bench, petitioners failed to discharge this burden. As aptly observed by the NLRC, private respondents were no longer given any assignment by petitioner agency. While it may appear that a Duty Detail Order was issued on July 15, 2006, petitioners failed to show the necessity of private respondents' transfer to Forever Living Products Philippines. Petitioners merely contend that private respondents refused the reassignment. However, the circumstances surrounding said transfer cast doubt as to the urgency of such decision. It is likewise noted that during the conferences conducted before the Labor Arbiter on private respondents' money claims, petitioner agency failed to offer private respondents' reinstatement or give them any work assignment. Until the time private respondents filed their illegal dismissal case on April 2, 2007, no assignment was given to them by petitioner agency. Hence, private respondents were left with no work from July 15, 2006 to April 2, 2007, or more than the allowable six-month period within which the security guards may be placed on a floating status.
Well-settled is the doctrine that security guards employed in security agencies may be placed on "floating status" as their assignments primarily depend on contracts entered into by the agency with third parties.[22] It is not equivalent to dismissal provided that such temporary inactivity should not exceed six (6) months. Otherwise, the security agency concerned could be held liable for constructive dismissal.[23] Here, the continued failure of petitioner agency to offer private respondents a new assignment during the proceedings of the case before the Labor Arbiter and beyond the six-month period makes it liable for constructive dismissal.
Petitioners' contention that private respondents had abandoned their post likewise deserves scant consideration. In Philippine Industrial Security Agency Corp. vs. Dapiton, et al,[24], the Supreme Court held that abandonment of work means a clear, deliberate and unjustified refusal of an employee to resume his employment and a clear intention to sever the employer-employee relationship. Abandonment is incompatible with constructive dismissal. In this case, there was no deliberate intent on the part of private respondents to abandon their employment with petitioner agency. Their refusal to be transferred to Forever Living Products was not without reason since the same was subject to a condition that they sign first the false statement. Private respondents believed in good faith that they were not being paid the benefits due them under the law. As such, they refused to sign the document stating otherwise. Private respondents cannot then be faulted for immediately filing the labor case when they were not given any assignment by petitioner agency. An employee who forthwith takes steps to protest his layoff cannot by any logic be said to have abandoned his work.[25]
We likewise affirm the NLRC's ruling that petitioner Lawrence T. Tejada is solidarily liable with petitioner agency since bad faith on his part was duly established. In the case of Uichico, et al. vs. NLRC, et al.[26], the Supreme Court held that in labor cases, corporate directors and officers may be held solidarily liable with the corporation for the termination of employment of corporate employees done with malice or in bad faith. In this case, it is undisputed that as an Administrative and Personnel Manager, petitioner Tejada had a direct hand in the hiring and termination of the agency's employees. He was the one who directed private respondents to report to his office and told them about their reassignment to Forever Living Products Philippines, Ortigas Avenue, Greenhills, San Juan, Metro Manila, but on the condition that private respondents should first sign the document containing untruthful statement with regard their benefits.[27] Petitioner Tejada even instructed Inspector Nicanor G. Gabriel of his office to require private respondents to sign the false statement as a pre-condition to private respondents' transfer.[28] These facts were not refuted by petitioner Tejada in their Position Paper[29] filed before the Labor Arbiter. Such acts then were clearly indicative of bad faith on the part of petitioner Tejada for which he can be held jointly and severally liable with petitioner 7th Security & Investigation Service, Inc. for all the money claims of private respondents.
It may also be well to stress that certiorari under Rule 65 of the Rules of Court will only lie where a grave abuse of discretion or an act without or in excess of jurisdiction is clearly shown.[30] This petitioners failed to do. As held in Victorino E. Day vs. RTC of Zamboanga City, Branch XIII, et al.,[31] there is "grave abuse of discretion" where there is a capricious and whimsical exercise of judgment amounting to lack of jurisdiction or where the power is exercised in an arbitrary and despotic manner by reasons of passion or personal hostility, and it is so patent and gross as to amount to an invasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[32] We find neither lack of jurisdiction nor grave abuse of discretion in this case.
Wherefore, premises considered, the instant petition is hereby dismissed.
SO ORDERED.
Asuncion-Vicente and Ybanez*, JJ., concur. Petition dismissed.
* Court of Appeals Reports Annotated, Vol. 48.
[1] Rollo, pp. 3-22.
[2] Rollo, pp. 23-27
[3] Rollo, PP. 28-29
[4] Rollo, pp. 31-35
[5] Rollo, pp. 31-35.
[6] Ibid.
[7] Rollo, pp. 49-55,
[8] Rollo, pp. 56-58,
[9] Rollo, p. 30.
[10] Rollo, pp. 73-74.
[11] Rollo, Petitioners' Position Paper, pp. 36-46
[12] Rollo, p. 23.
[13] Supra, see note 2.
[14] Rollo, pp. 25-27.
[15] Supra, see note 3.
[16] Rollo, p. 9.
[17] Cosmos Bottling Corp. vs. Nagrama, Jr., G.R. No. 164403, March 4, 2008, citing Ignacio vs. Coca-Cola Bottlers Phils., Inc., G.R.No. 144400, September 19, 2001; Arc-Men Food Industries Corp. et al. vs. NLRC et al, G.R. No. 127086, 22 August 2002.
[18] Cosmos Bottling Corp. vs. Nagrama, Jr., G.R. No. 164403, March 4, 2008, citing German Marine Agencies, Inc. vs. NLRC, G.R. No. 142049, January 30, 2001.
[19] G.R. No. 158922, May 28, 2004.
[20] Joneri Escobin, et al., vs. NLRC, et al., G.R. No. 118159, April 15, 1998, citing Philippine Advertising Counselors, Inc. vs. NLRC, 263 SCRA 395, October 21 1996, Philippine Japan Active Carbon Corp. vs. NLRC, 171 SCRA 164, 168, March 8, 1989 and Ledesma vs. NLRC, 246 SCRA 47, 51, July 13, 1995
[21] Placido O. Urbanes, Jr. vs. CA G.R. No. 138379, November 25, 2004.
[22] Soliman Security Services vs. Court of Appeals, et al., G.R. No. 143215, July 11, 2002; People's Security Inc. vs. NLRC, et al., G.R No. 96451, September 8, 1993.
[23] Soliman Security Services vs. Court of Appeals, et al., G.R. No. 143215, July 11, 2002.
[24] G.R. No. 127421, December 8, 1999.
[25] Philippine Industrial Security Agency Corp. vs. Dapiton, et al., G.R. no. 127421, December 8, 1999.
[26] G.R. No. 121434, June 2, 1997.
[27] Rollo, Private Respondents' Position Paper, p. 32.
[28] Rollo, Private Respondents' Position Paper, p. 32.
[29] Rollo, pp. 36-46.
[30] Punongbayan vs. Punongbayan, G.R. No. 156842, December 10, 2004.
[31] G.R. No. 79119, November 22, 1990.
[32] Citing Tavera-Luna, Inc. vs. Nable, 67 Phil.341.
* Acting Junior Member Vice Justice Rodil V. Zalameda who is on leave per Amended Office Order No. 12-10-ABR dated January 13, 2010.
In their Position Paper[4], private respondents Denmark J. Mindaña and Renie M. Delos Santos alleged that they were hired as security guards by petitioner 7th Security & Investigation Service, Inc. in February 2004 and on January 14, 2006, respectively. Delos Santos was immediately detailed at the Molave Trading, Inc. (MTI) located at 891 EDSA, Diliman, Quezon City while Mindaña was assigned there on February 23, 2006. They were required to render work for twelve (12) hours per day, including Sundays and holidays with a daily wage of P322.00.
On July 14, 2006, private respondents were summoned by petitioner Lawrence T. Tejada, petitioner security agency's Administrative and Personnel Manager, to report to his office. Petitioner Tejada compelled private respondents to sign a document containing a false statement that petitioner agency was paying them all the labor standard benefits mandated by law. Private respondents refused to sign because they were in fact underpaid. Due to their refusal, petitioners threatened private respondents that they would not be given a new assignment.
On July 15, 2006, petitioners reiterated the demand for private respondents to sign the false statement. This time a Duty Detail Order was shown to them by Inspector Nicanor G. Gabriel of the security agency. Upon the instructions of petitioner Tejada, Inspector Gabriel told private respondents that they could immediately render duty to Forever Living Products Philippines located at Ortigas Avenue, Greenhills, San Juan, Metro Manila provided they sign first the previous document containing untruthful statement with regard their benefits. Private respondents still vehemently refused.[5] Hence, petitioner agency did not give them a new assignment.
Aggrieved, private respondents went to the NLRC to file a complaint for illegal dismissal, underpayment of salary and nonpayment of overtime pay, holiday pay and night shift differential. However, they were advised that there was no illegal dismissal yet since petitioner agency was allowed under the law to put them on a "floating status" for six (6) months. Private respondents then pursued only the money claims.[6]
On December 14, 2006, the Labor Arbiter ruled in favor of private respondents and directed petitioner agency and its client MTI to solidarily pay private respondents Mindaña and Delos Santos their unpaid overtime pay in the amount of P19,422.44 and P26,297.64, respectively.[7]
On March 22, 2007, petitioner agency and MTI fully satisfied the money judgment, An Admission of Satisfaction of Judgment[8] of even date was executed by private respondents.
After the lapse of six (6) months, without petitioner agency giving them a new assignment, private respondents filed the instant complaint for illegal dismissal. They prayed for the payment of separation pay in leiu of reinstatement, holiday pay, service incentive leave pay and 13th month pay.[9]
In their traverse, petitioners argued that private respondents were not unjustly terminated. Instead, private respondents abandoned their post when they failed to report in their new place of assignment. Contrary to private respondents' claim, petitioner agency in fact detailed private respondents to Forever Living Products Philippines. However, in an utter display of insubordination, private respondents refused to be transferred thereto and insisted that they continue to stay at their former post in MTI, Diliman, Quezon City. On July 17, 2006, private respondents did not report to their new post and went on absence without leave (AWOL). Notices[10] of abandonment were then sent to private respondents last known address.[11]
In a Decision dated September 15, 2007, the Labor Arbiter held that private respondents were constructively dismissed from work. Petitioners were held liable for full backwages from July 15, 2006 to September 15, 2007 and separation pay of one month salary for every year of service to private respondents Mindaña and Delos Santos in the total amount of P213,081.13 and P404,442.62, respectively. The decretal portion of the decision reads:
Wherefore, respondents are hereby directed to pay complainants' full backwages from July 15, 2006 to September 15, 2007 and separation pay of one month salary for every year of service in the total amount of P213,081.13 and P404,442.62 to Denmark J. Mindaña and Rene delos Santos, respectively.Aggrieved, petitioners filed an appeal to public respondent NLRC. However, the same was denied in the assailed Decision[13] dated January 16, 2009. The NLRC held that petitioners failed to substantially prove that indeed private respondents abandoned their work. Thus, the Labor Arbiter's finding of constructive dismissal stands. The pertinent portions of the decision read:
All the money claims are hereby dismissed on ground of res judicata
SO ORDERED.[12]
In deciding the case in favor of the complainants-appellees, the Labor Arbiter found as follows:
"Between the diametrically opposed versions of the contending parties, we find for the complainants that they were constructively dismissed when they were no longer given assignments after they refused to sign the document which contains untruthful statements that they were receiving all the benefits mandated by law of their employer. If indeed complainants went AWOL starting July 15, 2006, Respondents must have issued to them a notice of AWOL or abandonment, sent at their last known address appearing in the personnel files, but nay."A Motion for Reconsideration was filed by petitioners but the same was denied in a Resolution[15] dated March 27, 2009.
Other than bare, allegations, respondents-appellants have not offered any proof to establish their theory of abandonment. It has been consistently held that abandonment of work is inconsistent with the filing by the employee of a complaint for illegal dismissal. It would be illogical for an employee to abandon his work and then immediately file an action seeking for his reinstatement * * *.
Wherefore, judgment is hereby rendered dismissing the respondents-appellants' appeal for lack of merit. Consequently, the assailed decision is AFFIRMED.[14]
Hence, the instant petition in which petitioners raised the following grounds[16] for its allowance, to wit:
I
WHETHER OR NOT PUBLIC RESPONDENT NLRC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN RULING THAT PRIVATE RESPONDENTS WERE ILLEGALLY DISMISSED FROM THE SERVICE.II.
WHETHER OR NOT PUBLIC RESPONDENT NLRC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN HOLDING THAT THERE WAS NO ABANDONMENT ON THE PART OF PRIVATE RESPONDENTS.III.
WHETHER OR NOT PUBLIC RESPONDENT NLRC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN AFFIRMING THE LABOR ARBITER'S RULING THAT PRIVATE RESPONDENTS ARE ENTITLED TO BACKWAGES AND SEPARATION PAY.IV
WHETHER OR NOT PUBLIC RESPONDENT NLRC COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK AND/OR EXCESS OF JURISDICTION IN HOLDING THAT PETITIONERS ARE JOINTLY AND SEVERALLY LIABLE TO PAY PRIVATE RESPONDENTS THEIR MONEY CLAIMS.
The pivotal issue to be resolved is whether or not public respondent NLRC acted with grave abuse of discretion amounting to lack or excess of jurisdiction in affirming the Labor Arbiter's ruling that private respondents were constructively dismissed from work.
The petition is bereft of merit.
Petitioners contend that public respondent NLRC gravely abused its discretion in affirming the Labor Arbiter's finding that private respondents were constructively dismissed from work. Other than the bare allegation of private respondents that they were made to sign a spurious document by petitioners, there was nothing in the records to support the same. On the other hand, private respondents were the ones who deliberately abandoned their job. While they were given a new assignment at Forever Living Products Philippines, private respondents continuously failed to render work thereat. Hence, private respondents were not illegally dismissed.
We are not persuaded.
At the outset, it may be well to state that factual findings of the NLRC, when supported by substantial evidence, are accorded great respect and even finality by the appellate courts.[17] The reason for this is that a quasi-judicial agency like the NLRC has acquired a unique expertise because its jurisdiction is confined to specific matters.[18] Here, We find no compelling reason to depart from the disquisition made by public respondent NLRC.
In Fernando Go vs. Court of Appeals, et al.[19], the Supreme Court held that constructive dismissal exists where there is a cessation of work because continued employment is rendered impossible, unreasonable or unlikely. It is likewise defined as an involuntary resignation resorted to when there is a demotion in rank and/or diminution in pay; or when a clear discrimination, insensibility or disdain by an employer becomes so unbearable to the employee.[20] Further, the employer has the burden of proving that the transfer of an employee was for a valid and legitimate ground such as genuine business necessity. Failure of the employer to overcome this burden of proof, the employee's transfer and demotion shall no doubt be tantamount to illegal constructive dismissal.[21]
In the case at bench, petitioners failed to discharge this burden. As aptly observed by the NLRC, private respondents were no longer given any assignment by petitioner agency. While it may appear that a Duty Detail Order was issued on July 15, 2006, petitioners failed to show the necessity of private respondents' transfer to Forever Living Products Philippines. Petitioners merely contend that private respondents refused the reassignment. However, the circumstances surrounding said transfer cast doubt as to the urgency of such decision. It is likewise noted that during the conferences conducted before the Labor Arbiter on private respondents' money claims, petitioner agency failed to offer private respondents' reinstatement or give them any work assignment. Until the time private respondents filed their illegal dismissal case on April 2, 2007, no assignment was given to them by petitioner agency. Hence, private respondents were left with no work from July 15, 2006 to April 2, 2007, or more than the allowable six-month period within which the security guards may be placed on a floating status.
Well-settled is the doctrine that security guards employed in security agencies may be placed on "floating status" as their assignments primarily depend on contracts entered into by the agency with third parties.[22] It is not equivalent to dismissal provided that such temporary inactivity should not exceed six (6) months. Otherwise, the security agency concerned could be held liable for constructive dismissal.[23] Here, the continued failure of petitioner agency to offer private respondents a new assignment during the proceedings of the case before the Labor Arbiter and beyond the six-month period makes it liable for constructive dismissal.
Petitioners' contention that private respondents had abandoned their post likewise deserves scant consideration. In Philippine Industrial Security Agency Corp. vs. Dapiton, et al,[24], the Supreme Court held that abandonment of work means a clear, deliberate and unjustified refusal of an employee to resume his employment and a clear intention to sever the employer-employee relationship. Abandonment is incompatible with constructive dismissal. In this case, there was no deliberate intent on the part of private respondents to abandon their employment with petitioner agency. Their refusal to be transferred to Forever Living Products was not without reason since the same was subject to a condition that they sign first the false statement. Private respondents believed in good faith that they were not being paid the benefits due them under the law. As such, they refused to sign the document stating otherwise. Private respondents cannot then be faulted for immediately filing the labor case when they were not given any assignment by petitioner agency. An employee who forthwith takes steps to protest his layoff cannot by any logic be said to have abandoned his work.[25]
We likewise affirm the NLRC's ruling that petitioner Lawrence T. Tejada is solidarily liable with petitioner agency since bad faith on his part was duly established. In the case of Uichico, et al. vs. NLRC, et al.[26], the Supreme Court held that in labor cases, corporate directors and officers may be held solidarily liable with the corporation for the termination of employment of corporate employees done with malice or in bad faith. In this case, it is undisputed that as an Administrative and Personnel Manager, petitioner Tejada had a direct hand in the hiring and termination of the agency's employees. He was the one who directed private respondents to report to his office and told them about their reassignment to Forever Living Products Philippines, Ortigas Avenue, Greenhills, San Juan, Metro Manila, but on the condition that private respondents should first sign the document containing untruthful statement with regard their benefits.[27] Petitioner Tejada even instructed Inspector Nicanor G. Gabriel of his office to require private respondents to sign the false statement as a pre-condition to private respondents' transfer.[28] These facts were not refuted by petitioner Tejada in their Position Paper[29] filed before the Labor Arbiter. Such acts then were clearly indicative of bad faith on the part of petitioner Tejada for which he can be held jointly and severally liable with petitioner 7th Security & Investigation Service, Inc. for all the money claims of private respondents.
It may also be well to stress that certiorari under Rule 65 of the Rules of Court will only lie where a grave abuse of discretion or an act without or in excess of jurisdiction is clearly shown.[30] This petitioners failed to do. As held in Victorino E. Day vs. RTC of Zamboanga City, Branch XIII, et al.,[31] there is "grave abuse of discretion" where there is a capricious and whimsical exercise of judgment amounting to lack of jurisdiction or where the power is exercised in an arbitrary and despotic manner by reasons of passion or personal hostility, and it is so patent and gross as to amount to an invasion of positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law.[32] We find neither lack of jurisdiction nor grave abuse of discretion in this case.
Wherefore, premises considered, the instant petition is hereby dismissed.
SO ORDERED.
Asuncion-Vicente and Ybanez*, JJ., concur. Petition dismissed.
* Court of Appeals Reports Annotated, Vol. 48.
[1] Rollo, pp. 3-22.
[2] Rollo, pp. 23-27
[3] Rollo, PP. 28-29
[4] Rollo, pp. 31-35
[5] Rollo, pp. 31-35.
[6] Ibid.
[7] Rollo, pp. 49-55,
[8] Rollo, pp. 56-58,
[9] Rollo, p. 30.
[10] Rollo, pp. 73-74.
[11] Rollo, Petitioners' Position Paper, pp. 36-46
[12] Rollo, p. 23.
[13] Supra, see note 2.
[14] Rollo, pp. 25-27.
[15] Supra, see note 3.
[16] Rollo, p. 9.
[17] Cosmos Bottling Corp. vs. Nagrama, Jr., G.R. No. 164403, March 4, 2008, citing Ignacio vs. Coca-Cola Bottlers Phils., Inc., G.R.No. 144400, September 19, 2001; Arc-Men Food Industries Corp. et al. vs. NLRC et al, G.R. No. 127086, 22 August 2002.
[18] Cosmos Bottling Corp. vs. Nagrama, Jr., G.R. No. 164403, March 4, 2008, citing German Marine Agencies, Inc. vs. NLRC, G.R. No. 142049, January 30, 2001.
[19] G.R. No. 158922, May 28, 2004.
[20] Joneri Escobin, et al., vs. NLRC, et al., G.R. No. 118159, April 15, 1998, citing Philippine Advertising Counselors, Inc. vs. NLRC, 263 SCRA 395, October 21 1996, Philippine Japan Active Carbon Corp. vs. NLRC, 171 SCRA 164, 168, March 8, 1989 and Ledesma vs. NLRC, 246 SCRA 47, 51, July 13, 1995
[21] Placido O. Urbanes, Jr. vs. CA G.R. No. 138379, November 25, 2004.
[22] Soliman Security Services vs. Court of Appeals, et al., G.R. No. 143215, July 11, 2002; People's Security Inc. vs. NLRC, et al., G.R No. 96451, September 8, 1993.
[23] Soliman Security Services vs. Court of Appeals, et al., G.R. No. 143215, July 11, 2002.
[24] G.R. No. 127421, December 8, 1999.
[25] Philippine Industrial Security Agency Corp. vs. Dapiton, et al., G.R. no. 127421, December 8, 1999.
[26] G.R. No. 121434, June 2, 1997.
[27] Rollo, Private Respondents' Position Paper, p. 32.
[28] Rollo, Private Respondents' Position Paper, p. 32.
[29] Rollo, pp. 36-46.
[30] Punongbayan vs. Punongbayan, G.R. No. 156842, December 10, 2004.
[31] G.R. No. 79119, November 22, 1990.
[32] Citing Tavera-Luna, Inc. vs. Nable, 67 Phil.341.
* Acting Junior Member Vice Justice Rodil V. Zalameda who is on leave per Amended Office Order No. 12-10-ABR dated January 13, 2010.