563 Phil. 683
Before us is a Petition for Review on
Certiorari under Rule 45 of the Rules of Court assailing the Decision
[1] dated February 27, 2003 and the Resolution
[2]
dated April 22, 2003 of the Court of Appeals (CA) in CA G.R. SP No.
72762 which reversed and set aside the Resolution dated February 21,
2002 and the Order dated June 28, 2002 of the National Labor Relations
Commission (NLRC).
Araceli de Jesus ( private respondent) is the owner of a boutique shop
bearing her name located in Unit Plaza, J. Bocobo cor. Arquiza Streets,
Ermita, Manila which was registered with the Bureau of Domestic Trade
on December 23, 1996. Joel Macahilig (petitioner) was one of private
respondent's three sales clerks who started working in the boutique
shop on January 7, 1997. His latest monthly salary was
P3,200.00.
In 2000, private respondent's boutique shop suffered huge losses due to
substantial reduction in sales; thus, she adopted as a cost-saving
measure the rotation of her three sales clerks, by which each one of
them would take a month's leave of absence without pay to start in
2001. The sales clerks agreed among themselves that petitioner's leave
would be in January, Elsa Andrino (Andrino) in February, and Abella
Amistad (Amistad) in March, with all of them reporting regularly for
work in April as private respondent expected that business conditions
would improve. However, due to the zero daily sales in the middle part
of January 2001, private respondent temporarily closed the boutique
shop on January 22, 2001 to cut down on electricity and the daily meal
and transportation allowances of her sales clerks and reopened the
boutique shop on February 8, 2001. According to petitioner, private
respondent told him on February 8, 2001 that his services were no
longer needed.
On February 12, 2001, petitioner filed with the Labor Arbiter (LA) a
complaint for illegal dismissal with prayer for separation pay,
backwages, and other monetary benefits and damages against private
respondent. In his position paper, he alleged that during his vacation
leave without pay, he would call private respondent to ask when he
would resume his duties but would only get excuses not to return yet;
that on February 8, 2001, private respondent told him that she no
longer wished to continue his services without giving any reason and
prior notice. Petitioner asked for separation pay as reinstatement
would not be in the best interest of the parties due to the
circumstances availing in their case.
Private respondent denied having dismissed petitioner, as he simply
refused to return to work and claimed that he filed the case to exact
money from her. She submitted the affidavits of petitioner’s
co-workers, Andrino
[3] and Amistad,
[4]
in which they stated that it was petitioner who did not return to work
anymore, and that they expressed satisfaction as to their salaries and
benefits, including their annual 13
th month pay; that
Amistad stated that petitioner had been complaining incessantly about
commuting daily to and from Ermita, Manila since he resides in
Caloocan. Private respondent alleged that she received a phone call
from a woman who identified herself as petitioner’s mother who told
her, “
Bigyan mo na lang ng puhunan sa negosyo si Joel,”
then hung up. She also denied underpayment or non-payment of
petitioner's monetary claims and submitted the Department of Labor and
Employment (DOLE) Inspection Report
[5]
of Senior Labor Enforcement Officer Efren Miranda who inspected the
working conditions of the boutique shop in 1999 and reported “no
violation” committed by her.
In a Decision
[6] dated September 14, 2001, the LA ruled in favor of petitioner, the dispositive portion of which reads:
WHEREFORE, premises considered, judgment is hereby rendered
declaring the dismissal of the complainant illegal. Respondents are
ordered to pay complainant the following:
1. Separation pay |
| P32,000.00 |
2. Backwages |
| 11,093.33 |
3. 13th Month pay |
| 9,565.33 |
4. Service Incentive Leave Pay |
| not entitled |
Total |
| P52,658.66 |
All other claims are denied for lack of merit.[7]
In finding that petitioner was illegally dismissed, the LA found
unmeritorious private respondent's claim that after the lapse of
petitioner's one month leave without pay, the latter failed or refused
to return to work and thus was guilty of abandonment. The LA found
that petitioner never intended to abandon his work since, during the
time he was on vacation leave, he had asked private respondent when he
would report for work but was finally told on February 8, 2001 that his
service was no longer needed; and that the filing of the case negated
petitioner's charge of abandonment.
The LA held that since petitioner was illegally dismissed, he should be
reinstated to his former position, but that because petitioner opted
for a separation pay, the payment of his backwages and separation pay
of one month for every year of service was in order; and considering
that the boutique shop was registered only on December 23, 1996, and
therefore, petitioner officially started working in the boutique on
January 7, 1997, his separation pay must start from the year 1997, and
his backwages from the date of his dismissal,
i.e., February 8, 2001, both up to the promulgation of the decision.
Private respondent appealed to the NLRC.
On February 21, 2002, the NLRC rendered its Resolution
[8] affirming with modification the decision of the LA, the dispositive portion of which reads:
WHEREFORE, finding no cogent reason to modify, alter, much
less reverse the decision appealed from, the same is AFFIRMED with the
MODIFICATION that the award of separation pay should be reduced to P16,000.00 covering the period of almost 5 years of service, which is from January 7, 1997 to September 14, 2001 only.[9]
Private respondent's Motion for Reconsideration was denied in an Order
[10] dated June 28, 2002.
Private respondent filed a Petition for
Certiorari
with prayer for the issuance of a temporary restraining order, with the
CA alleging grave abuse of discretion committed by the NLRC.
On February 27, 2003, the CA rendered its assailed Decision granting the petition and reversing the NLRC.
The CA found no indication that petitioner was terminated from his
employment, since private respondent had not shown any overt act that
she had dismissed petitioner, nor was there any hint that she held a
personal grudge against him; that as regards non-payment of
compensation, the DOLE Inspection Report stated that “no violation”
was committed by private respondent; that absent any showing of dubiety
in the veracity of the contents of the affidavits and of the DOLE
Inspection Report, the public respondents should have taken them into
consideration.
The CA found that petitioner's actions manifested an intention to no
longer work in the boutique shop, to wit: (1) he never returned to his
work on February 1, 2001 when it was Andrino’s turn to take a vacation
leave; (2) he never denied that his mother called private respondent
on February 8, 2001, asking the latter to just give petitioner capital;
(3) instead of praying for his reinstatement, petitioner sought a
separation pay; and (4) he did not deny private respondent’s allegation
that he is now working in another office. The CA held that the rule
that abandonment of work is inconsistent with the filing of a complaint
for illegal dismissal is not applicable to this case, as such rule
applies only when the complainant seeks reinstatement as a relief, and
not when separation pay is prayed for as done by petitioner.
Petitioner’s Motion for Reconsideration was denied in a Resolution dated April 22, 2003.
Petitioner filed the instant petition on the following grounds:
I
WHETHER OR NOT THE RESPONDENT HAD SUFFICIENTLY PROVED ABANDONMENT ON THE PART OF THE PETITIONER.
II
WHETHER OR NOT THE RESPONDENT WAS ABLE TO OVERCOME THE BURDEN OF PROOF
THAT THE TERMINATION OF THE PETITIONER WAS BASED ON LEGAL GROUNDS.
III
WHETHER OR NOT THE REQUIREMENTS OF LAW TO EFFECT A VALID DISMISSAL WERE COMPLIED WITH BY THE RESPONDENT.[11]
The main issue for resolution is factual,
i.e., whether or not petitioner abandoned his job.
As a general rule, we do not entertain factual issues. The scope of our
review in petitions filed under Rule 45 is limited to errors of law or
jurisdiction.
[12] We leave the evaluation of facts to the trial and appellate courts which are better equipped for this task.
However, there are instances in which factual issues may be resolved by
this Court, to wit: (1) the conclusion is a finding grounded entirely
on speculation, surmise and conjecture; (2) the inference made is
manifestly mistaken; (3) there is grave abuse of discretion; (4) the
judgment is based on a misapprehension of facts; (5) the findings of
fact are conflicting; (6) the CA goes beyond the issues of the case and
its findings are contrary to the admissions of both appellant and
appellee; (7) the findings of fact of the CA are contrary to those of
the trial court; (8) said findings of facts are conclusions without
citation of specific evidence on which they are based; (9) the facts
set forth in the petition as well as in the petitioner's main and reply
briefs are not disputed by the respondent; and (10) the findings of
fact of the CA are premised on the supposed absence of evidence and
contradicted by the evidence on record.
[13]
Considering that the findings of facts and the conclusions of the LA
and the NLRC are inconsistent with those of the CA, we find it
necessary to evaluate such findings.
After a careful examination of the records, we find that the CA erred
in granting the petition and reversing the decisions of the LA and the
NLRC finding that petitioner was illegally dismissed.
We are well-aware that in labor cases, the employer has the burden of
proving that the employee was not dismissed or, if dismissed, that the
dismissal was not illegal; and failure to discharge the same would mean
that the dismissal is not justified and therefore illegal.
[14]
The CA gave credence to private respondent's allegation that petitioner
was not dismissed, but that it was he who never came back after his
one-month vacation leave without pay, thus abandoning his job.
We do not agree.
Jurisprudence holds that for abandonment of work to exist, it is
essential (1) that the employee must have failed to report for work or
must have been absent without valid or justifiable reason; and (2) that
there must have been a clear intention to sever the employer-employee
relationship as manifested by some overt acts.
[15]
Deliberate and unjustified refusal on the part of the employee to go
back to his work post and resume his employment must be established.
Absence must be accompanied by overt acts unerringly pointing to the
fact that the employee simply does not want to work anymore.
[16] And the burden of proof to show that there was unjustified refusal to go back to work rests on the employer.
[17]
Petitioner was on a vacation leave without pay for the whole month of
January 2001 as a cost-saving measure adopted by private respondent due
to reduction in sales. While petitioner was expected to be back on
February 1, 2001, the boutique shop was closed on January 22 and
reopened only on February 8, 2001. Petitioner indicated his intention
to report back to work when he called private respondent to ask when he
was to resume his work. Thus, petitioner's absence was not due to his
deliberate refusal to continue his employment, but because private
respondent temporarily closed the boutique shop in order for her to cut
down on electricity and the daily meal and transportation allowances of
her sales clerks.
Petitioner was told by private respondent on February 8, 2001 that his services were no longer needed.
We find private respondent's claim that petitioner abandoned his work
for the reason that he had been complaining to Amistad - that since he
transferred to Caloocan in the middle of 1997, he was having a hard
time commuting from Caloocan to Manila back and forth - as pure
speculation or mere conjecture. Difficulty in commuting would not
necessarily lead a person to simply abandon his job. Notably, it has
been shown that petitioner officially started with private respondent
in January 1997; and that when he transferred to Caloocan in the middle
of 1997, petitioner continued to report for work until he took his
forced vacation leave without pay in January 2001.
There is no justification to conclude that petitioner would just abandon his work which gave him a monthly salary of
P3,200.00, free meals and daily cash allowance of
P60.00.
Moreover, there is no clear showing that petitioner was offered
another employment elsewhere with better terms and conditions. Private
respondent failed to substantiate her claim that petitioner had another
job.
Also, petitioner admits that he stands barely three and one-half feet
tall; and he knew that he could not arrogantly abandon his source of
income, knowing fully well that he would encounter difficulty in
looking for a new job.
Private respondent's claim of abandonment is belied by the fact that
four days after petitioner's alleged dismissal on February 8, 2001, he
filed a complaint for illegal dismissal with the LA. Such dispatch in
protesting his termination belies the claimed abandonment.
[18]
We cannot affirm the CA's finding that the call made by petitioner's mother, saying “
bigyan mo na lang ng puhunan si Joel,”
as an indication of petitioner's intention to no longer work in the
boutique shop. This circumstance is not sufficient proof of
petitioner's clear and deliberate intent to abandon his job, as it does
not conclusively establish that petitioner has no more intent to report
for work. Abandonment of position is a matter of intention and cannot
be lightly inferred, much less legally presumed, from certain equivocal
acts;
[19] specially so when
the call was made not by petitioner, but only by his mother whose real
intention in calling private respondent we can only surmise.
We also do not agree with the CA's finding that petitioner's prayer for
separation pay is a manifestation of his lack of intention to work.
As held in
Sentinel Security Agency, Inc. v. National Labor Relations Commission:
[20]
However, the Agency claims that the complainants, after
being placed off-detail, abandoned their employ. The solicitor general,
siding with the Agency and the labor arbiter, contends that while
abandonment of employment is inconsistent with the filing of a
complaint for illegal dismissal, such rule is not applicable "where
[the complainant] expressly rejects this relief and asks for separation
pay instead."
The Court disagrees. Abandonment, as a just and valid cause for
termination, requires a deliberate and unjustified refusal of an
employee to resume his work, coupled with a clear absence of any
intention of returning to his or her work. That complainants did not
pray for reinstatement is not sufficient proof of abandonment. A strong
indication of the intention of complainants to resume work is their
allegation that on several dates they reported to the Agency for
reassignment, but were not given any.[21]
Moreover, there are instances in which what is ordered is not
reinstatement but the payment of separation pay, such as when the
business of the employer has closed,
[22]
or when the relations between the employer and the employee have been
so severely strained that it is not advisable to order reinstatement,
[23] or when the employee decides not to be reinstated.
[24]
Notably, in his position paper filed with the LA, petitioner stated
that it was not in the best interest of the parties that reinstatement
be granted and thus prayed for separation pay. The prayer for
separation pay cannot be legally regarded as an abandonment since,
given the smallness of respondent's staff, petitioner would have found
it uncomfortable to continue working under the hostile eyes of the
employer who had been forced to reinstate him.
[25]
The hostility of private respondent was made manifest when she
considered the filing of the case as petitioner's act of exacting money
from her. In fact, she branded petitioner as one who was very good at
acting, and who had mastered the art of gaining other people's
sympathy. The realities of the situation precludes a harmonious
relationship, should reinstatement be ordered.
In fine, private respondent failed to establish that there was
deliberate and unjustified refusal on petitioner's part to go back to
his work; thus, petitioner's dismissal was illegal. He was summarily
dismissed when he was simply told by private respondent on February 8,
2001 that his services were no longer needed, without any notice and
hearing. Thus, the LA correctly awarded petitioner the payment of
backwages and separation pay as modified by the NLRC.
However, the LA's award of 13
th month pay in favor of petitioner in the amount of
P9,565.33,
computed from February 12, 1998 to February 8, 2001, needs
modification. In the DOLE Inspection Report dated September 10, 1999,
Labor Enforcement Officer Miranda found that there was no violation
committed by private respondent. This was not refuted by petitioner.
However, there is no showing that after September 1999, petitioner
received his 13
th month pay. Under Presidential Decree No. 851,
[26] 13
th
month pay is given not later than December 24 of every year.
Considering that private respondent asserts that she has given
petitioner his 13
th month pay, she has the bounden duty to
prove that fact; however, she failed to do so. The affidavits of
Amistad and Andrino stating that they are receiving their bonus
equivalent to one month pay before Christmas would not suffice to prove
payment of the 13
th month pay to petitioner after September 1999, the date of the Inspection Report. Thus, the computation of the yearly 13
th month pay should start from 1999.
WHEREFORE, the petition is
GRANTED. The Decision dated February 27, 2003 and the Resolution dated
April 22, 2003 of the Court of Appeals are hereby
REVERSED and
SET
ASIDE. The Decision dated September 14, 2001 of the Labor Arbiter as
modified by the National Labor Relations Commission is
REINSTATED with
the
MODIFICATION that the computation of the 13
th month pay should start from 1999.
SO ORDERED.
Ynares-Santiago, (Chairperson), Chico-Nazario, Nachura, and
Reyes, JJ., concur.
[1] Penned by Justice Mariano
C. del Castillo, concurred in by Justices Buenaventura J. Guerrero
(retired) and Teodoro P. Regino (retired);
rollo, pp. 99-108.
[2] Penned by Justice Mariano
C. del Castillo, concurred in by Justices Buenaventura J. Guerrero
(retired) and Juan Q. Enriquez, Jr.; id. at 72.
[3] Rollo, p. 43.
[4] Id. at 41-42.
[5] Id. at 44.
[6] Id. at 45-49; Penned by Labor Arbiter Florentino R. Darlucio.
[7] Id. at 49.
[8] Id. at 59-61; Penned by
Presiding Commissioner Roy V. Señeres and concurred in by
Commissioners Vicente S.E. Veloso and Alberto R. Quimpo.
[9] Id. at 60-61.
[10] Id. at 78-79.
[11] Id. at 16.
[12] NS Transport Services Inc. v. Zeta, G.R. No. 158499, April 3, 2007, citing
Coca-Cola Bottlers Phils., Inc. v. Daniel, G.R. No. 156893, June 21, 2005, 460 SCRA 494, 503.
[13] NS Transport Services Inc. v. Zeta, supra note 12, citing
R & E Transport, Inc. v. Latag, G.R. No. 155214, February 13, 2004, 422 SCRA 698, 705.
[14] Abad v. Roselle Cinema, G.R. No. 141371, March 24, 2006, 485 SCRA 262, 268.
[15] Malayang Samahan ng mga Manggagawa sa M. Greenfield v. Ramos, 383 Phil. 329, 371-372 (2000), citing
Philippine Advertising Counselors, Inc. v. National Labor Relations Commission, 331 Phil. 694, 702 (1996);
Balayan Colleges v. National Labor Relations Commission, 325 Phil. 245, 258 (1996).
[16] Malayang Samahan ng mga Manggagawa sa M. Greenfield v. Ramos, id. at 372, citing
Nueva Ecija I Electric Cooperative, Inc. v. Minister of Labor, G.R. No. 61965, April 3, 1990, 184 SCRA 25, 30.
[17] Id.
[18] Lagniton, Sr. v. National Labor Relations Commission, G.R. No. 86339, February 5, 1993, 218 SCRA 456, 459.
[19] See
Shin I Industrial (Phils.) v. National Labor Relations Commission, G.R. No. L-74489, August 3, 1988, 164 SCRA 8, 11, citing
City of Manila v. Subido, 123 Phil. 1080, 1083 (1966).
[20] 356 Phil. 434 1998.
[21] Id. at 444.
[22] Kingsize Manufacturing Corporation v. National Labor Relations Commission, G.R. Nos. 110452-54, November 24, 1994, 238 SCRA 349, 357, citing
Callanta v. Carnation Philippines, Inc., 229 Phil. 279, 291 (1986);
Pizza Inn v. National Labor Relations Commission, G.R. No. L-74531, June 28, 1988, 162 SCRA 773, 778.
[23] Kingsize Manufacturing Corporation v. National Labor Relations Commission, id., citing
Asiaworld Publishing House, Inc. v. Ople, G.R. No. L-56398, July 23, 1987, 152 SCRA 219, 227.
[24] Kingsize Manufacturing Corporation v. National Labor Relations Commission, id., citing
Starlite Plastic Industrial Corp. v. National Labor Relations Commission, G.R. No. 78491, March 16, 1989, 171 SCRA 315, 326.
[25] See
Ranara v. National Labor Relations Commission, G.R. No. 100969, August 14, 1992, 212 SCRA 631, 635.
[26] Requiring all employers to pay their employees a 13
th month pay.