372 Phil. 482
“Complainant Carlito Lacson was employed on March 5, 1987 as boiler operator technician by Northwest Agro-Marine Products Corporation (NAPCO). On December 12, 1990 respondent Luzmart, Inc., acquired NAPCO in a foreclosure sale. Both companies were managed by respondent Delfin Garcia.The Labor Arbiter ruled in favor of the respondent Carlito Lacson (LACSON). Petitioner NAPCO-Luzmart (LUZMART) appealed to the NLRC which affirmed the decision of the Labor Arbiter after finding that the Labor Arbiter did not commit any reversible error. The NLRC however deleted the award of attorney’s fees in favor of LACSON. Its decision, which adopted the conclusions of the Labor Arbiter, reads:
On January 28, 1993, there was a mauling incident which involved the complainant and Julius Z. Viray, his immediate supervisor and allegedly a friend and compadre of respondent Garcia. As complainant suffered injuries as a result thereof he reported the matter to police authorities and he sought treatment at the Teofilo Sison Memorial Provincial Hospital. Both the complainant and Viray were asked to explain their sides. After the submission of the written explanations, Delfin Garcia suspended both of them from work for a period of one month effective April 15, 1993. In the same suspension order, complainant was further directed to explain in writing why he should not be dealt with disciplinary action or terminated for his continued absences from February 15, 1993 up to the date of the memorandum order. Complainant filed a complaint for illegal dismissal and other monetary claims but the same was dismissed without prejudice. On September 1, 1993, the complainant refiled this case.”
‘The issues to be resolved in this case are: (1) whether or not the complainant was dismissed from his employment; (2) whether or not he is entitled to his claim for overtime services, separation pay, 13th month pay, premium pay for working on holidays and rest days, separation pay, 13th month pay and service incentive leave pay; and, (3) whether or not the complainant is considered an employee of the respondents since March 1987.
The first issue: Respondent Delfin Garcia insists that he did not dismiss the complainant and that he can return to his work after his one month suspension, (affidavit of respondent Garcia, marked as Annex “H” of his position paper). On the other hand, complainant Lacson maintains that he reported for work several times but respondent Garcia refused to take him back and that the former told him to look for another job.
Let us scrutinize the evidence. The incident involving the complainant and Julius Viray, also an employee of the respondents, wherein Viray allegedly mauled the complainant, happened on January 28, 1993. On February 1993, the complainant submitted his handwritten explanation blaming Viray as the aggressor. According to the complainant, Viray was drunk at the time of the incident and although he avoided Viray, the latter armed with a lead pipe, followed him and wanted to kill him (Annex “C” – complainant). Viray also submitted his handwritten explanation on February 2, 1993 (see Annex “E-1” of respondent’s position paper). Viray only stated that a “heated argument transpired”. On March 31, 1993, respondent Garcia issued a Memorandum suspending both the complainant and Viray for one (1) month effective April 15, 1993 and at the same time required the complainant to explain why he should not be terminated for being absent from Feb. 15, 1993, (Annex “F”, respondents). The question is, why did it take respondent Delfin Garcia one (1) month or more to decide and issue an order suspending the complainant and Viray? Why did he not suspend the two immediately after the incident? This leads credence to the complainant’s allegation that he reported for work after submitting his explanation but respondent Garcia refused to admit him back and told him to take a vacation or to look for another work, hence he decided to file a complaint against him on Feb. 4, 1993, which was later dismissed without prejudice, the reason for the dismissal of which was not explained to us by the complainant. Moreover, it is true that the complainant failed to report for work since Feb. 15, 1993, why did respondent Garcia not issue an order or memorandum after the complainant failed to report for a number of days and directing the complainant to report immediately otherwise his employment will be terminated? We also agree with the complainant’s argument that the respondents should not have asked him to explain his alleged failure to report for work since Feb. 15, 1993, because he has already filed a complaint against Garcia earlier.
The second issue; Annexes “G”, “G-1” to “G-14” of the respondents, which are samples of respondents payroll, show that whenever the complainant rendered overtime services, he was paid accordingly. Is he entitled to his claim for 13th monthpay, service incentive leave pay, vacation in sick leave pay and separation pay? Respondents maintain that since the complainant was employed by them only on February 1, 1991, he has no right to claim benefits that arose before his employment with them. That since he was not dismissed from his employment, he is not also entitled to his claim for separation pay. (The resolution of this issue will also resolve the second issue)
Respondents argue that the services of the complainant with NAPCO since March 1987, cannot be credited or counted to his length of service with LUZMART because his subsequent employment with LUZMART is a new employment as shown in his employment contract (Annex “D” respondents) with LUZMART.
In the case of MDII Supervisors and Confidential Employees Association (FFW) vs. Presidential Assistant on Legal Affairs, 79 SCRA 40 (1977), the Supreme Court ruled that:
‘xxx And there is no law which requires the purchaser to absorb the employees of the selling corporation.
As there is no such law, the most that the purchasing company may do, for purposes of public policy and social justice, is to give preference to the qualified separated employees of the selling company, who in their judgment are necessary in the continued operation of the business establishment. This RCAM did. It required private respondents to reapply as new employees as a condition for rehiring subject to the usual probationary status, the latter’s past services with the petitioners, transferors not recognized (San Felipe Neri School of Mandaluyong, Inc., et. Al. Vs. NLRC, Roman Catholic Archbishop of Manila (RCAM), et. al., G.R. No. 78350, Sept. 11, 1991.).’
Except for his bare allegation that LUZMART was only organized by the controlling stockholders of NAPCO to acquire or gain control of the latter, the complainant did not present sufficient evidence to prove his allegation, LUZMART is an entirely new corporation or entity with a distinct personality from NAPCO, and is not an alter ego of NAPCO. Therefore, LUZMART is not under obligation to absorb the workers of NAPCO or to absorb the length of service earned by its employees.On appeal, respondent contends that the Labor Arbiter erred in awarding backwages to the complainant from February 1, 1993 up to the date of the promulgation of the decision, and in awarding separation pay of one month pay for every year of service.
The respondents are therefore correct in their assertion that they should not be answerable for the complainant’s claim for benefits that may be due him before January 1, 1991.
As we have discussed earlier, the complainant herein was constructively dismissed from his employment by respondent Delfin Garcia because of the latter’s refusal to admit him back to work inspite of the complainant’s insistence to resume his work after he has given his explanation.’
However, we delete the award of attorney’s fees as this is not a case of unlawful withholding of wages.
WHEREFORE, premises considered, the appealed decision is modified by deleting the award of attorney’s fees. In all other respect, the same is affirmed.
1. notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; andIt is unclear whether LUZMART complied with the first required written notice; apparently, LACSON was able to give his account of the fight. However, even assuming that LUZMART complied with the first written notice i.e. the charge against LACSON with fighting within company premises, the evidence fails to show compliance with the second notice requirement; to inform LACSON of the decision to dismiss him. Such failure to comply with said requirements taints LACSON’s dismissal with illegality.
2. the subsequent notice which informs the employee of the employer’s decision to dismiss him.
|JULIUS Z. VIRAY|
|ON JANUARY 28, 1993|
|DATE||:||MARCH 31, 1993|
DELFIN E. GARCIAActing General Manager