Republic
of the
Supreme
Court
FIRST DIVISION
L.C.
ORDOÑEZ CONSTRUCTION, G.R.
No. 149669
A.C.
ORDOÑEZ CONSTRUCTION,
L.C.
ORDOÑEZ GRAVEL and SAND
and
TRUCKING, and/or LAMBERTO
ORDOÑEZ,
Petitioners,
Present:
PANGANIBAN,
C.J.
(Chairperson)
- versus - YNARES-SANTIAGO,
AUSTRIA-MARTINEZ,
CALLEJO,
SR., and
CHICO-NAZARIO, JJ.
IMELDA
NICDAO, RODRIGO
SICAT
and ROMEO BAUTISTA, Promulgated:
Respondents.
x-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x
D E C I S I O N
AUSTRIA-MARTINEZ, J.:
This resolves the petition for review
on certiorari seeking the reversal of the Decision[1]
of the Court of Appeals (CA) dated
The antecedent facts, as accurately
narrated by the CA in its Decision, are as follows:
Imelda Nicdao was employed as Secretary/Cashier, while Rodrigo Sicat and Romeo Bautista were truck drivers of respondent firm. The aforenamed petitioners [herein respondents] claim that they were hired respectively in June 1985, February 1981 and March 1988.
Sometime in January 1993,
petitioners inquired from private respondents about the delay of their
salaries, non-payment of holiday pay, rest day allowances, service incentive
leave, 13th month pay and the like. Private respondents [herein petitioners]
allegedly were infuriated and uttered invectives at petitioners, especially to Nicdao, and threatened them with termination of their
employment. To avoid a confrontation,
petitioner Nicdao filed a leave of absence for six
(6) working days on
In their position paper, private respondents did not deny petitioners’ employment. They argued, however, that Imelda Nicdao was employed only in May 1989, while Romeo Bautista started working in June 1991. Private respondents further argued that Rodrigo Sicat and Romeo Bautista are drivers on a per trip basis and had not become regular employees; that Imelda Nicdao abandoned her work when she was confronted with the reported misappropriation of cash collection from sales of sand and filing (sic) materials; that Rodrigo Sicat and Romeo Bautista simply failed to report for work despite receipt of “show cause letter” why their services should not be terminated.
After the parties had submitted their respective position papers and other responsive pleadings with documentary and testimonial evidence, the case was submitted for resolution.
The Regional Arbitration Branch No.
III,
WHEREFORE,
premises considered, a decision is hereby issued declaring the dismissal of the
remaining complainants illegal, and dismissing the complaint of the other (11)
for having desisted on their complaints, and for lack of interest as regards
Antonio Sicat.
As a consequence, respondents A.C. Ordonez Construction, L.C. Ordonez
Construction and L.C. Ordonez Gravel and Sand and Trucking and individual
respondent Lamberto Ordonez are hereby ordered to pay
complainants jointly and severally, including their separation the following
amounts to which each of them are entitled, to wit:
1) Imelda Nicdao
-------------------------- P 107,006.25
2) Rodrigo Sicat
----------------------------- P 93,083.23
3) Romeo Bautista -------------------------- P 72,149.95
All in the aggregate
of two hundred seventy two thousand two hundred thirty nine pesos and 43/100
centavos (P272,293.43), plus attorney’s fee representing ten (10%)
percent of the total award, the rest being dismissed for lack of merit.
SO ORDERED.
(pp. 43-44, Rollo)
On appeal to the NLRC, private respondents assailed the Labor Arbiter’s decision on the following grounds:
a) There are serious errors in the findings of
facts which, if not corrected, would cause grave or irreparable damage or
injury to the applicants.
b) Serious reversible errors constituting evidence of abuse of discretion were committed by the Labor Arbiter.”
(p. 26, ibid)
The
National Labor Relations Commission, Third Division, in its Decision of
WHEREFORE,
premises considered, the Decision dated
1) Imelda Nicdao:
13th month pay P2,000.00
Service incentive leave pay 2,006.25
Indemnity pay 1,000.00
Total P5,006.25
2) Rodrigo Sicat:
13th month pay 1,350.00
Service incentive leave pay 1,500.00
Total P8,083.32
3) Romeo Bautista:
Separation pay P7,849.98
13th month pay 2,700.00
Service incentive leave pay 1,500.00
Total
P12,049.98
SO ORDERED.
(p. 30, ibid)
On
Herein respondents then
filed a petition for certiorari with the CA. On
WHEREFORE,
premises considered, the Decision of the National Labor Relations Commission
dated
SO ORDERED.[3]
The CA granted the petition and ruled that
respondents are not guilty of abandonment since it was only after the management
informed them that their services were no longer needed that they failed to
report for work, and the fact that they immediately filed a complaint for
illegal dismissal is a clear indication that they had no intention of
abandoning their employment. The CA also
ruled that with regard to respondents Sicat and Bautista, petitioners failed to
give them the required two notices, thus, tainting their termination with
illegality. As for petitioners’ averment
that the dismissal of respondent Nicdao was due to her misappropriation of cash
collections amounting to P327,006.37, the CA found this claim not worthy
of belief because petitioners only filed a complaint for estafa against Nicdao
five months after the latter had filed the complaint for illegal dismissal
against petitioners. Thus, the CA
concluded that the filing of the estafa case against Nicdao was merely an
attempt by petitioners to create a leverage against the former.
Petitioners moved for reconsideration of the CA Decision but
in its Resolution dated
Hence, this petition for review on certiorari on the following grounds:
1.
THE COURT OF
APPEALS ABUSED ITS DISCRETION IN REVIEWING AND RE-EXAMINING THE FINDINGS OF
FACTS OF THE NLRC DESPITE THE FACT THAT SAID FINDINGS OF THE NLRC ARE SUPPORTED
BY SUBSTANTIAL EVIDENCE ON RECORD;
2.
THE COURT OF
APPEALS DECIDED THE QUESTION OF RESPONDENTS’ DISMISSAL IN A WAY NOT IN ACCORD
WITH THE LAW AND CLEARLY SETTLED JURISPRUDENCE ON THE MATTER WHEN IT –
2.1
DID NOT CONSIDER RESPONDENT IMELDA NICDAO
AS HAVING ABANDONED HER JOB;
2.2
TREATED THE DISMISSAL OF RESPONDENTS ROMEO
BAUTISTA AND RODRIGO SICAT AS LEGAL [sic].[4]
It is emphasized at the outset that the CA committed no error in reviewing the findings of fact of the National Labor Relations Commission (NLRC). In Mayon Hotel & Restaurant v. Adana,[5] the Court held thus:
x x x [W]hen the factual findings of the
Labor Arbiter and the NLRC are diametrically opposed and this disparity of
findings is called into question, there is, necessarily, a re-examination of
the factual findings to ascertain which opinion should be sustained. As ruled in
Although, it is a legal
tenet that factual findings of administrative bodies are entitled to great
weight and respect, we are constrained to take a second look at the facts
before us because of the diversity of the opinions of the Labor Arbiter and the
NLRC. A dis-harmony between the factual findings of
the Labor Arbiter and those of the NLRC opens the door to a review thereof by
this Court.
The CA, therefore, did not
err in reviewing the records to determine which opinion was supported by
substantial evidence.[6] (Emphasis supplied)
The next question then is, was the CA correct in sustaining the findings of the Labor Arbiter?
Petitioners first argue that with regard to respondent Nicdao, the CA should have given more credence to the statement of petitioners that Nicdao was employed only in the year 1989 and not in 1985. To support their argument, petitioners point out that Nicdao’s claim as to the date of her employment should not be believed as she has lost her credibility when she made inconsistent statements regarding the date of her employment as stated in her Affidavit[7] dated January 21, 1994 stating that she was employed in August 1991, as opposed to the date of employment stated as June 1985 in her complaint and position paper.
On this point, the Court rules in favor of petitioner. Indeed, even if petitioners were not able to present any employment records, respondent Nicdao’s Affidavit[8] dated January 21, 1994 submitted to the Labor Arbiter in support of her complaint for illegal dismissal militates against her for it stated that “I am a regular employee of respondent Ordonez, having been employed on [sic] August 1991, x x x.” In Rufina Patis Factory v. Alusitain,[9] the Court held that:
It is a basic
rule in evidence, however, that the burden of proof is on the part of the party
who makes the allegations – ei incumbit probatio, qui dicit, non qui negat. If he claims a right granted by law, he
must prove his claim by competent evidence, relying on the strength of his own
evidence and not upon the weakness of that of his opponent.[10] (Emphasis ours)
In said case, respondent Alusitain was claiming retirement benefits from his
employer, alleging that he was employed until 1995. The employer countered that Alusitain was employed only until
Applying the foregoing ruling in Rufina to the case at bar, it was incumbent upon Nicdao to present competent evidence that she was indeed employed beginning 1985. The burden of proof rests upon respondent Nicdao since she is the party claiming entitlement to separation pay and other employee benefits computed from 1985. However, Nicdao herself made an admission against her own interest by stating in her affidavit that she was employed only in August 1991. Nicdao did not even present any explanation for the variance between the date of employment stated in her affidavit as against the date stated in her complaint and position paper. Nor has she presented any other evidence to overturn the statement in her own affidavit that she was employed only in August 1991. Having made such an admission against her interest, Nicdao’s statement in her affidavit freed petitioners from the burden of presenting evidence, i.e., the employment records, to prove their assertion in their position paper that they only employed Nicdao in May 1989.
Since the Court cannot rely on Nicdao’s inconsistent statements as to the date of her employment, the only persuasive evidence on record regarding Nicdao’s date of employment is petitioners’ admission that they employed her in May 1989. Based on the evidence on record, Nicdao must then be deemed to have been employed by petitioners only in May 1989.
Next, petitioners insist that there is no illegal dismissal in this case because respondents abandoned their employment.
Our guiding principle in resolving the issue of whether or not respondents were illegally dismissed is stated in Litonjua Group of Companies v. Vigan,[12] as follows:
For emphasis, We shall quote with seeming triteness the dictum laid
down in Mendoza v. NLRC (supra) regarding the unflinching rule in
illegal dismissal cases:
“that the employer bears the burden of proof. To establish a case of abandonment, the employer must prove the employees’ deliberate and unjustified refusal to resume employment without any intention of returning. . .
mere absence from work, especially where the employee has been verbally
told not to report, cannot by itself constitute abandonment. To repeat, the employer has the burden of
proving overt acts on the employee’s part which demonstrate a desire or
intention to abandon her work…” [13]
(Emphasis ours)
The foregoing was further elucidated in Hodieng Concrete Products v. Emilia,[14] where the Court held:
The
rule is that before abandonment can be considered a valid cause for dismissal,
there must be a concurrence of the intention to abandon and some overt acts
from which an employee may be deduced as having no more intention to work.
In Samarca
v. Arc-Men Industries, Inc., we held:
“x
x x. Absence must be
accompanied by overt acts unerringly pointing to the fact that the employee
simply does not want to work anymore. And the burden of proof to show
that there was unjustified refusal to go back to work rests on the employer.
x
x x
Abandonment
is a matter of intention and cannot lightly be presumed from certain equivocal
acts. To constitute abandonment, there must be clear proof of deliberate
and unjustified intent to sever the employer-employee relationship. Clearly,
the operative act is still the employee’s ultimate act of putting an end to his
employment.
Settled
is the rule that mere absence or failure to report for work is not tantamount
to abandonment of work.
x x x.” [15] (Emphasis ours)
Were petitioners able to discharge their burden of proof? The answer is a categorical no.
First, with
regard to the case of Nicdao, the Court finds
difficulty believing petitioners’ allegation that when they confronted Nicdao with discrepancies in the payrolls of employees, she
filed a leave of absence and never returned to work. Petitioners reason out that it would have
been illogical for them to dismiss Nicdao in February
of 1993 because, she being their Secretary-Cashier, petitioners badly needed
her services to shed light on the audit being conducted at that time. Petitioners further insist that as a result
of the audit, Nicdao was found to have
misappropriated the amount of P327,006.37 and they filed a criminal case
for estafa against her. In petitioners’ view, such charge against Nicdao constituted just cause for her dismissal but by
then, Nicdao had allegedly abandoned her
employment.
The glaring lack of convincing evidence on record to support petitioners’ allegations, however, makes it impossible for the Court to give any weight to petitioners’ version of what supposedly transpired.
If, indeed,
the true reason for Nicdao’s filing a leave of
absence on
The Court agrees with the observation of the CA, to wit:
The truth is, the charge of estafa
through misappropriation of funds imputed against petitioner Nicdao was filed
before the Investigating Judge of the Municipal Trial Court of Guagua Pampanga (p. 120, Rollo) five (5) months after the filing of the illegal
dismissal case or on
The foregoing circumstances clearly show that petitioners’ imputation of anomalous handling of funds against respondent Nicdao is merely a desperate attempt to create some semblance of a just cause for Nicdao’s dismissal.
In the case of
respondents Bautista and Sicat, petitioners allege
that the two merely stopped reporting for work and failed to answer the “show
cause letters” sent to them by petitioners.
Again, documentary evidence on record shows otherwise. The “show cause” letter[21]
sent to one of the original complainants, requiring him to explain why he had
not been reporting for work since
Once more, petitioners fail to present credible proof of any overt acts on the part of respondents to abandon their employment. Petitioners have not presented any evidence, other than the bare allegations in their pleadings, to support their defense that respondents Sicat and Bautista had abandoned their employment.
In fact, respondents’ immediate filing of a complaint for illegal dismissal unambiguously shows that respondents had no intention whatsoever to abandon their employment. Human experience tells us that no employee in his right mind would go through the trouble of filing a case unless the employer had indeed terminated the services of the employee. In Hodieng Concrete Products v. Emilia,[23] the Court reiterated the long-standing rule that the filing of the complaint for illegal dismissal negates the allegation of abandonment.
Petitioners’ argument that the lack of a prayer for reinstatement in respondents’ complaint is a sign that respondents really intended to abandon their employment is tenuous. Respondents sufficiently explained in their complaint that they are no longer seeking reinstatement because of the strained relationship with their employer.
In Mayon Hotel and Restaurant v. Adana,[24] the Court emphasized that:
[I]n termination disputes, the burden of proof is
always on the employer to prove that the dismissal was for a just or authorized
cause. Where there is no showing of a clear, valid and legal cause for
termination of employment, the law considers the case a matter of illegal
dismissal.[25]
Petitioners having utterly failed to discharge their burden of proving that there was any just cause for dismissing respondents and that they complied with due process requirements, they are clearly liable for illegally dismissing respondents.
IN LIGHT OF THE FOREGOING, the petition is PARTLY
GRANTED. The Decision of the Court
of Appeals dated
SO ORDERED.
MA.
ALICIA AUSTRIA-MARTINEZ
Associate
Justice
WE CONCUR:
ARTEMIO
V. PANGANIBAN
Chief Justice
Chairperson
CONSUELO YNARES-SANTIAGO ROMEO J. CALLEJO, SR.
Associate Justice Associate Justice
MINITA
V. CHICO-NAZARIO
Associate Justice
CERTIFICATION
Pursuant to Section 13, Article VIII
of the Constitution, it is hereby certified that the conclusions in the above
Decision were reached in consultation before the case was assigned to the
writer of the opinion of the Court’s Division.
ARTEMIO
V. PANGANIBAN
Chief Justice
[1] Penned by Associate Justice Fermin A. Martin, Jr. (now retired) and concurred in by Associate Justices Wenceslao I. Agnir, Jr. (now retired) and Mercedes Gozo-Dadole.
[2] Rollo, pp. 30-33.
[3] CA rollo, pp. 187-188.
[4] Rollo, p. 8.
[5] G.R. No. 157634,
[6]
[7] NLRC records, p. 103.
[8]
[9] G.R. No. 146202,
[10]
[11]
[12] 412 Phil. 627 (2001).
[13]
[14] G.R. No. 149180,
[15]
[16] NLRC records, between pp. 127 and 128.
[17]
[18]
[19] Note that Accountant Gloria De Leon
stated in her Affidavit dated
[20] CA Decision, rollo, pp. 37-38.
[21] NLRC records, p. 68.
[22]
[23] Supra note 14, at 254.
[24] Supra note 5.
[25]