796 Phil. 574
LEONARDO-DE CASTRO, J.:
The resolution of this case hinges on our determination of whether or not [respondent] was illegally dismissed for her to be entitled to her money claims,
x x x x
In her position paper, the [petitioner Ferraris] categorically denied having terminated [respondent]. The [respondent] after being reprimanded for shortages, she ceased to report for work on February 5, 2005. This fact is attested to by [petitioners'] witness, a co-employee of the [respondent] Ma. Eva Gorospe to the effect that [respondent] and coemployee Moonyeen Bura-ay scolded them for shortages during a meeting on February 5, 2005. The witness attested that they were not terminated but they did not report for work anymore the following day up to the present. This gives weight to the fact that in her complaint no illegal dismissal was contemplated by [respondent].
The records, on the other hand, is (sic) bereft of any evidence linking to the allegation of dismissal. In fact, there is no positive or unequivocal act on the part of [petitioners] that would buttressed (sic) a fact that [respondent] was dismissed. Thus, the High Court said:"While the general rule in dismissal cases is that the employer has the burden to prove the dismissal was for just or authorized causes and after due process, said burden is necessarily shifted to the employee ifthe alleged dismissal is denied by the employer because a dismissal is supposedly a positive and unequivocal act by the employer. Accordingly, it is the employee that bears the burden of proving that in tact he was dismissed An unsubstantiated allegation on the part of the employee cannot stand as the same offends due process. " (De Paul / King Philip Customs Tailor, et al vs. NLRC, G.R. No. 129824, Marc;h 10, 1999) Underscoring Ours.
The [respondent] did not controvert the [petitioners'] categorical denial and more, she failed to demonstrate the burden. As such, the allegations of the [respondent] to the effect that she was dismissed remains (sic) gratuitous. In fact the High Court in the same vein said:"The burden of proof lies upon who asserts it, not upon who denies, since by the nature of things, he who denies a fact cannot produce any proof of it. " (Sevillana vs. LT. International Corp., et al., POEA-NLRC Case No. L-88-12-1048, 26 March 1991; Aguilar vs. Maning International Corp., et al., POEA-NLRC Case No. L-88-08-728, October 8, 1990).
In the case at Bench, the positive act and/or the unequivocal act of termination is the Factum Probandum which the [respondent] miserably failed to demonstrate.[12]
Besides, the [respondent] did not aver illegal dismissal as the same was not pleaded in her verified complaint. She cannot be allowed to prove the same. The rule is clear that the "verified position papers shall cover only those claims and causes of action raised in the complaint x x x" (Rule V, Section 4, Par. 2, Rules of Procedure of the NLRC, as Amended). Incidentally, there is no prooflinking to the allegation of dismissal.[13]
WHEREFORE, premises laid, judgment is hereby rendered dismissing the complaint in the instant case for lack of.cause of action and for not being impressed with merit.
However, [petitioners] are hereby ordered, jointly and severally, to pay [respondent] the amount of Five Hundred Pesos (Php500.00) representing 13th month pay differential.[14]
We uphold the findings of the Labor Arbiter. The records do not reveal of any written document to show that [respondent and Moonyeen] were indeed dismissed. On the other hand, [petitioners] vehemently denied having dismissed them. Therefore, under these given facts, to the [respondent and Moonyeen] is shifted the burden to prove that their dismissal had, in fact, taken place. The rule as exemplified by the Supreme Court is: "Where the employee was not notified that he had been dismissed from employment neither was [he] prevented from returning to his work, there is no illegal dismissal["] (Chong Guan Trading vs. NLRC, 172 SCRA 831). For, indeed, the records do not bare any positive or unequivocal act of [petitioners] notifying them of the termination of their services, as observed by the Labor [Arbiter] a quo. It is our view that [respondent and Moonyeen] miserably failed to establish by substantial evidence that they were dismissed. Their verbal claim supported by self serving and biased statements of two (2) witnesses, namely, Mercy Buraay and Mea Tormon, who like them have an ax to grind being complainants themselves against the same [petitioners], did not substantially prove their case. [Respondent and Moonyeen] did not deny [petitioners'] allegation that they x x x were also the witnesses of Mercy Bura-ay and Mea Tormon in a separate case the latter filed against the same [petitioners]. Thus, we find more expressive of truth the verbal declaration of [petitioners], supported by a sworn statement x x x of one witness, Eva Gorospe, that after [respondent and Moonyeen] were reprimanded, made to explain and produce the Php400:00 shortage of their daily collection, they voluntarily ceased to report to work anymore. We emphasize, it is not shown in the records that Gorospe was motivated by ill-will or was coerced by the [petitioners] into executing her sworn statement. [Respondent and Moonyeen] did not dispute that they were investigated by [petitioner Ferraris] on February 4, 2005 regarding shortages of their collections. Such investigation cannot by any stretch of imagination be considered dismissal of the [respondent and Moonyeen]. On the contrary, we can only surmise that the investigation generated a force compelling enough for [respondent and Moonyeen] to quit working [for petitioners]. Their failure to report for work is an act they alone must bear the consequences of. By their own act, they bargained away their security of tenure under the law.
[Respondent and Moonyeen's] money claims of overtime pay, holiday pay and service incentive leave pay must likewise fail. Overtime pay and holiday pay are some of the extraordinary claims the burden of proof of which is shifted to the worker who must prove he rendered overtime work or that he worked during holidays (Julio Cagampan, et al. vs. NLRC, et al., 195 SCRA 533). No proof is placed on record by [respondent and Moonyeen] to prove their claimed overtime and holiday work. [Respondent and Moonyeen] cannot also avail of entitlement of service incentive pay under Article 95 of the Labor Code who regularly employs more than ten (10) workers. Section 1, Rule of Book III of the Implementing Rules of the Labor Code explicitly exempts establishments regularly employing less than ten (10) workers from the coverage of the said provision. Employing less than ten (10) workers, [petitioners are] thus exempted under the law.
However, we see no reason to disturb the award of 13th month pay. This is an admitted claim and the [respondent and Moonyeen] must be entitled to the same.[16]
We are constrained to review [NLRC's] exercise of its discretion in affirming the Labor Arbiter's findings on abandonment because such conclusion does not appear to have been substantially proved and the same is repugnant to both law and jurisprudence.
The Labor Arbiter, relying on the alleged ruling in De Paul, contended that the employee has the burden to prove the fact of dismissal when such dismissal was denied by the employer, as when the defense of the employee's abandonment was interposed. Thus, in refusing to consider [respondent's] cause of action for illegal dismissal, the Labor Arbiter found that [respondent] miserably failed to demonstrate any such positive or unequivocal act on the part of Ferraris m terminating [respondent].
Reliance on De Paul seemed imprudent and misplaced, if not, devious because De Paul was indefensibly misquoted in the Labor Arbiter's Decision, in that the alleged ruling as quoted therein does not appear in the original printed text of the case in Volume 3[0]4 of the Supreme Court Reports Annotated (SCRA), pages 448-459.
Furthermore, the Labor Arbiter's contention on the shifting of the burden of proof is incongruous with prevailing jurisprudence which requires the concurrence of two (2) elements before an employee may be guilty of abandonment. The first is the failure to report for work or absence without valid or justifiable reason. The second is a clear intention to sever the employer-employee relationship. The second element is the more determinative factor and must be evinced by overt acts. Likewise, the burden of proof is on the employer to show the employee's clear and deliberate intent to discontinue his employment without any intention of returning; mere absence is not sufficient.
We agree with the observation that the joint testimony of Mercy Bura-ay and Mea Torno in favor of [respondent], apparently returning a favor to [respondent] who also testified for Bura-ay and Torno in a separate labor case against Ferraris, is tainted with bias and, thus, cannot credibly and substantially prove the fact of [respondent's] alleged dismissal. However, neither should the testimony of Eva Gorospe, Ferraris's lone witness, deserve much probative weight in proving that [respondent] abandoned her job because mere failure to report back to work on the part of [respondent], as Gorospe testified, falls short of the substantial evidence required in proving the existence of abandonment.
Therefore, the Labor Arbiter, as well as [the NLRC], failed to appreciate that doubts shroud the evidence presented by both parties, and both tribunals appeared oblivious of the dictates of jurisprudence that such doubts should be resolved in favor of the worker, as was pronounced in Nicario v. NLRC, et al.:"It is a well-settled doctrine, that if doubts exist between the evidence presented by the employer and the employee, the scales of justice must be tilted in favor of the latter. It is a time-honored rule that in controversies between a laborer and his master, doubts reasonably arising from the evidence, or in the interpretation of agreements and writing should be resolved in the former's favor. The policy is to extend the doctrine to a greater number of employees who can avail of the benefits under the law, which is in consonance with the avowed policy of the State to give maximum aid and protection of labor."The foregoing doctrine should be applied in this case, especially since Ferraris did not prove by substantial evidence a clear and deliberate intent on the part of [respondent] to discontinue her employment without any intention of returning.
Furthermore since there is an equipoise of evidence, as there is doubt as to where the evidence of the parties tilt, Ferraris, the employer who has the burden of proving not only abandonment but more importantly just cause for dismissal, is deemed to have failed in discharging such burden.
Thus, We find no legal impediment in ruling that [respondent] was in fact terminated and such termination was done illegally or without any valid cause, and in patent violation of the procedural requirements of due process, anchored upon Ferraris's failure to discharge her burden of proving abandonment by [respondent], including, as a corollary, the burden of proving just cause for [respondent's] termination. In view of [respondent's] allegation that she was dismissed on February 5, 2005, We shall reckon [respondent's] dismissal on said date.[17] (Citations omitted.)
Corollary to our finding that [respondent] was in fact illegally terminated, [petitioners] should be ordered to reinstate [respondent] without loss of seniority rights and other privileges, or, in case reinstatement would no longer be feasible, to pay [respondent] separation pay equivalent to one (1) month salary for every year of service, with payment in either cases of [respondent's] full backwages, inclusive of allowances, and her other benefits or their monetary equivalent, computed from February 5, 2005, the date [respondent] was illegally dismissed, up to the time of her actual reinstatement.
With respect [to] the other monetary claims, We find no cogent reason to disturb the ruling of the Labor Arbiter in awarding [respondent] only the amount of Php500.00 representing [respondent's] 13th month pay differential.[19]
WHEREFORE, premises considered, the petition is GRANTED. The Resolution promulgated on August 30, 2006 by [the NLRC], affirming in toto the February 21, 2006 Decision of the Labor Arbiter dismissing [respondent's] complaint, including the November 30, 2006 Resolution denying a motion for reconsideration thereof, are SET ASIDE. The case should be remanded to the Labor Arbiter for the proper computation of the monetary awards due to [respondent] as a result of her illegal dismissal. The Labor Arbiter's grant of an award in the amount of Php500.00, representing [respondent's] 13th month pay differential, is maintained.[20]
- THE COURT OF APPEALS ERRED IN CONCLUDING THAT A CAUSE OF ACTION BELATEDLY INCLUDED IN THE POSITION PAPER AND NOT ORIGINALLY PLEADED IN THE COMPLAINT CAN STILL BE GIVEN COGNIZANCE.
- THE COURT OF APPEALS ERRED IN FINDING THAT THE NLRC ACTED WITH GRAVE ABUSE OF DISCRETION ON THE BASIS THAT THE DECISION LACKED FACTUAL PROOF AND ALSO IGNORED ESTABLISHED JURISPRUDENCE.[21]
Section 4. Submission of Position Papers/Memoranda. - Without prejudice to the provisions of the last paragraph, Section 2, of this Rule, the Labor Arbiter shall direct both parties to submit simultaneously their position papers with supporting documents and affidavits within an inextendible period of ten (10) days from notice of termination of the mandatory conference.
These verified position papers to be submitted shall cover only those claims and causes of action raised in the complaint excluding those that may have been amicably settled, and shall be accompanied by all supporting documents including the affidavits of their respective witnesses which shall take the place of the latter's direct testimony. The parties shall thereafter not be allowed to allege facts, or present evidence to prove facts, not referred to and any cause or causes of action not included in the complaint or position papers, affidavits and other documents. (Emphases supplied.)
[T]he complaint is not the only document from which the complainant's cause of action is determined in a labor case. Any cause of action that may not have been included in the complaint or position paper, can no longer be alleged after the position paper is submitted by the parties. In other words, the filing of the position paper is the operative act which forecloses the raising of other matters constitutive of the cause of action. This necessarily implies that the cause of action is finally ascertained only after both the complaint and position paper are properly evaluated.In the more recent Our Haus Realty Development Corporation v. Parian,[24] which cited Samar-Med Distribution v. National Labor Relations Commission,[25] the Court further expounded:
A cause of action is the delict or wrongful act or omission committed by the defendant in violation of the primary right of the plaintiff. A complaint before the NLRC does not contain specific allegations of these wrongful acts or omissions which constitute the cause of action. All that it contains is the term by which such acts or omissions complained of are generally known. It cannot therefore be considered as the final determinant of the cause of action. (Citation omitted.)
A claim not raised in the pro forma
complaint may still be raised in the
position paper.
Our Haus questions the respondents' entitlement to SIL pay by pointing out that this claim was not included in the pro forma complaint filed with the NLRC. However, we agree with the CA that such omission does not bar the labor tribunals from touching upon this cause of action since this was raised and discussed in the respondents' position paper. In Samar-Med Distribution v. National Labor Relations Commission, we held:Firstly, petitioner's contention that the validity of Gutang's dismissal should not be determined because it had not been included in his complaint before the NLRC is bereft of merit. The complaint of Gutang was a mere checklist of possible causes of action that he might have against Roleda. Such manner of preparing the complaint was obviously designed to facilitate the filing of complaints by employees and laborers who are thereby enabled to expediently set forth their grievances in a general manner. But the non inclusion in the complaint of the issue on the dismissal did not necessarily mean that the validity of the dismissal could not be an issue. The rules of the NLRC require the submission of verified position papers by the parties should they fail to agree upon an amicable settlement, and bar the inclusion of any cause of action not mentioned in the complaint or position paper from the time of their submission by the parties. In view of this, Gutang's cause of action should be ascertained not from a reading of his complaint alone but also from a consideration and evaluation of both his complaint and position paper. (Citations omitted.)
"[T]his Court is not unmindful of the rule that in cases of illegal dismissal, the employer bears the burden of proof to prove that the termination was for a valid or authorized cause." But "[b]efore the [petitioners] must bear the burden of proving that the dismissal was legal, [the respondents] must first establish by substantial evidence" that indeed they were dismissed. "[I]f there is no dismissal, then there can be no question as to the legality or illegality thereof."[27] (Citations omitted.)
In illegal dismissal cases, "[w]hile the employer bears the burden x x x to prove that the termination was for a valid or authorized cause, the employee must first establish by substantial evidence the fact of dismissal from service." The burden of proving the allegations rests upon the party alleging and the proof must be clear, positive and convincing. Thus, in this case, it is incumbent upon petitioner to prove his claim of dismissal. (Citations omitted.)
The CA erred in finding grave abuse
of discretion in the NLRC's factual
conclusion that Lumahan was not
dismissed from work.
In every employee dismissal case, the employer bears the burden of proving the validity of the employee's dismissal, i.e., the existence of just or authorized cause for the dismissal and the observance of the due process requirements. The employer's burden of proof, however; presupposes that the employee had in fact been dismissed, with the burden to prove the fact of dismissal resting on the employee. Without any dismissal action on the par.t of the employer, valid or otherwise, no burden to prove just or authorized cause arises.
We find that the CA erred in disregarding the NLRC's conclusion that there had been no dismissal, and in immediately proceeding to tackle Nightowl's defense that Lumahan abandoned his work.
The CA should have first considered whether there had been a dismissal in the first place. To our mind, the CA missed this crucial point as it presumed that Lumahan had actually been dismissed. The CA's failure to properly appreciate this point - which led to its erroneous conclusion - constitutes reversible error that justifies the Court's exercise of its factual review power.
We support the NLRC's approach of first evaluating whether the employee had been dismissed, and find that it committed no grave abuse of discretion in factually concluding that Lumahan had not been dismissed from work.
It should be remembered that in cases before administrative and quasi-judicial agencies like the NLRC, the degree of evidence required to be met is substantial evidence, or such amount of relevant evidence that a reasonable mind might accept as adequate to justify a conclusion. In a situation where the word of another party is taken against the other, as in this case, we must rely on substantial evidence because a party alleging a critical fact must duly substantiate and support its allegation.
We agree with the NLRC that Lumahan stopped reporting for work on April 22, 1999, and never returned, as Nightowl sufficiently supported this position with documentary evidence.
In contrast, Lumahan failed to refute, with supporting evidence, Nightowl's contention that he did not report for work on April 22, 1999, and failed as well to prove that he continued working from such date to May 15, 1999. What we can only gather from his claim was that he did not work from May 16, 1999 to June 8, 1999; but this was after the substantially proven fact that he had already stopped working on April 22, 1999.
In addition, we find that Lumahan failed to substantiate his claim that he was constructively dismissed when Nightowl allegedly refused to accept him back when he allegedly reported for work from April 22, 1999 to June 9, 1999. In short, Lumahan did not present any evidence to prove that he had, in fact, reported back to work.
x x x x
In the case before us, the CA clearly ignored certain compelling facts and misread the evidence on record by relying on LA Demaisip's erroneous appreciation of facts. Under the circumstances, the NLRC acted well within ·its jurisdiction in finding that Lumahan had not been dismissed. Otherwise stated, by reversing the ruling that there was no dismissal to speak of, the CA committed a reversible error in finding grave abuse of discretion on the part of the NLRC.
Grave abuse of discretion implies a capricious and whimsical exercise of judgment equivalent to lack of jurisdiction, or the exercise of power in an arbitrary or despotic manner by reason of passion or personal hostility; or in a manner so patent and gross as to amount to an evasion of positive duty enjoined or to act at all in contemplation of law. It is not sufficient that a tribunal, or a quasi-judicial agency of the government, in the exercise of its power, abused its discretion; such abuse must be grave.
All told, we cannot agree with the CA in finding that the NLRC committed grave abuse of discretion in evaluating the facts based on the records and in concluding therefrom that Lumahan had not been dismissed.
The CA erred when it considered
"abandonment of work" generally
understood in employee dismissal
situations despite the fact that
Nightowl never raised it as a defense.
As no dismissal was carried out in this case, any consideration of abandonment - as a defense raised by an employer in dismissal situations - was clearly misplaced. To our mind, the CA again committed a reversible error in considering that Nightowl raised abandonment as a defense.
Abandonment, as understood under our labor laws, refers to the deliberate and unjustified refusal of an employee to resume his employment. It is a form of neglect of duty that constitutes just cause for the employer to dismiss the employee.
Under this construct, abandonment is a defense available against the employee who alleges a dismissal. Thus, for the employer "to successfully invoke abandonment, whether as a ground for dismissing an employee or as a defense, the employer bears the burden of proving the employee's unjustified refusal to resume his employment." This burden, of course, proceeds from the general rule that places the burden on the employer to prove the validity of the dismissal.
The CA, agreeing with LA Demaisip, concluded that Lumahan was illegally dismissed because Nightowl failed to prove the existence of an overt act showing Lumahan's intention to sever his employment. To the CA, the fact that Nightowl failed to send Lumahan notices for him to report back to work all the more showed no abandonment took place.
The critical point the CA missed, however,. was the fact that Nightowl never raised abandonment as a defense. · What Nightowl persistently argued was that Lumahan stopped reporting for work beginning April 22, 1999; and that it had been waiting for Lumahan to show up so that it could impose on him the necessary disciplinary action for abandoning his post at Steelwork, only to learn that Lumahan had filed an illegal dismissal complaint. Nightowl did not at all argue that Lumahan had abandoned his work, thereby warranting the termination of his employment.
Significantly, the CA construed these arguments as abandonment of work under the labor law construct. We find it clear, however, that Nightowl did not dismiss Lumahan; hence, it never raised the defense of abandonment.
Besides, Nightowl did not say that Lumahan "abandoned his work"; rather, Nightowl stated that Lumahan "abandoned his post" at Steelwork. When read together with its arguments, what this phrase simply means is that Lumahan abandoned his assignment at Steelwork; nonetheless, Nightowl still considered him as its employee whose return they had been waiting for.
Finally, failure to send notices to Lumahan to report back to work should not be taken against Nightowl despite the fact that it would have been prudent, given the circumstance, had it done so. Report-to-work notices are required, as an aspect of procedural due process, only in situations involving the dismissal, or the possibility of dismissal, of the employee. Verily, report-to-work notices could not be required when dismissal, or the possibility of dismissal, of the employee does not exist. (Emphases supplied, citations omitted.)