Republic of the Philippines
SUPREME COURT
Manila
THIRD DIVISION
G.R. No. 158095 November 23, 2007
JOEL CUSTODIO MACAHILIG, Petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION, ARACELI DE JESUS BOUTIQUE AND/OR ARACELI S. DE JESUS, Respondents
D E C I S I O N
AUSTRIA-MARTINEZ, J.:
Before us is a Petition for Review on Certiorari under Rule 45 of the Rules of Court assailing the Decision1 dated February 27, 2003 and the Resolution2 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 ₱3,200.00.
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, Andrino3 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 13th 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 Report5 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 Decision6 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 | ₱32,000.00 |
| 2. Backwages | 11,093.33 |
| 3. 13th Month pay | 9,565.33 |
| 4. Service Incentive Leave Pay | not entitled
|
| Total | ₱52,658.66 |
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 Resolution8 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 ₱16,000.00 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 Order10 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 ₱3,200.00, free meals and daily cash allowance of ₱60.00. 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.1âwphi1 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 13th month pay in favor of petitioner in the amount of ₱9,565.33, 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 13th month pay. Under Presidential Decree No. 851,26 13th month pay is given not later than December 24 of every year. Considering that private respondent asserts that she has given petitioner his 13th 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 13th month pay to petitioner after September 1999, the date of the Inspection Report. Thus, the computation of the yearly 13th 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 13th month pay should start from 1999.
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE CONCUR:
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson
MINITA V. CHICO-NAZARIO
Associate Justice |
ANTONIO EDUARDO B. NACHURA
Associate Justice |
RUBEN T. REYES
Associate Justice
A T T E S T A T I O N
I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
C E R T I F I C A T I O N
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s attestation, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice
Footnotes
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 13th month pay.
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