Republic of the
Supreme Court
THIRD DIVISION
JOEL
CUSTODIO MACAHILIG, G.R. NO.
158095
Petitioner,
Present:
YNARES-SANTIAGO,
J.,
Chairperson,
- versus - AUSTRIA-MARTINEZ,
CHICO-NAZARIO,
NACHURA,
and
REYES,
JJ.
NATIONAL
LABOR RELATIONS
COMMISSION,
ARACELI DE
JESUS
BOUTIQUE AND/OR ARACELI S.
DE JESUS,
Respondents. Promulgated:
x-
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
- - - - - - - - - - x
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 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
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
On
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 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 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
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
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
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
Private respondent's Motion for Reconsideration
was denied in an Order[10] dated
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
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
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
Petitioner
was told by private respondent on
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
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
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
However, the LA's award of 13th month pay
in favor of petitioner in the amount of P9,565.33, computed
from
WHEREFORE, the petition is GRANTED. The
Decision dated
SO ORDERED.
MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice
WE CONCUR:
CONSUELO
YNARES-SANTIAGO
Associate Justice
Chairperson
MINITA V.
Associate
Justice Associate Justice
RUBEN T. REYES
Associate Justice
ATTESTATION
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
[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]
[5]
[6]
[7]
[8]
[9]
[10]
[11]
[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,
[14]
Abad
v. Roselle Cinema, G.R. No. 141371,
[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,
[17]
[18] Lagniton,
Sr. v. National Labor Relations Commission, G.R. No. 86339,
[19] See
Shin I Industrial (Phils.) v. National Labor Relations
Commission, G.R. No. L-74489,
[20] 356 Phil. 434 1998.
[21]
[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.
[23] Kingsize
Manufacturing Corporation v. National Labor Relations
Commission, id., citing
Asiaworld Publishing House, Inc. v. Ople, G.R. No. L-56398,
[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,
[26] Requiring all employers to pay their employees a 13th month pay.