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HENLIN PANAY COMPANY and/or EDWIN FRANCISCO/ ANGEL LAZARO III, Petitioners, |
G.R. No. 180718
Present: |
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- versus - |
Quisumbing, J., Chairperson, CARPIO,* Carpio Morales, BERSAMIN,** and ABAD,
JJ. |
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NATIONAL LABOR RELATIONS COMMISSION
(NLRC) and NORY A. BOLANOS, Respondents. |
Promulgated: October 23, 2009 |
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QUISUMBING, J.:
For review on certiorari are the Decision[1] dated
The facts as
found by the appellate court and the NLRC are as follows:
Private
respondent Nory A. Bolanos started working on September 26, 2004 as service
crew for petitioner Henlin Panay Company where she worked for eight hours a day
from Sunday to Friday and was paid P325 per day. Henlin Panay is owned by VMD Food House
Company whose president is petitioner Angel Lazaro III.
On
Bolanos
served one more customer before she closed Counter B. Later, Javier ordered an
additional siopao and softdrink from Counter A manned by Fe Niyam Combo
(Combo).
After taking
his break, Francisco returned to the dine-in area and noticed that Javier was
already having siopao and softdrink. He
then checked the journal tape of Counter B but did not find said food items
punched in the cash register. At that
time, Javier already left Henlin Panay.
Francisco then asked Bolanos about the additional items ordered by
Javier, but she told him that they were ordered at Counter A. When Francisco scrutinized the journal tape
of Counter A, it did not also reflect the siopao and softdrink ordered by
Javier. Francisco asked Combo about the
matter and the latter told him that she remembered giving Javier siopao and
softdrink. Combo said that she might
have made an erroneous entry in the cash register by punching in siomai and
lemonade instead. When Bolanos and Combo
checked the order slips, where the order of each customer was first written
before being punched in the cash register, they found one indicating siopao and
softdrink. Despite Combo’s admission of
her mistake, Francisco did not believe her.
Bolanos offered to bring along her brother-in-law the next day to prove
that the additional food items were ordered from and paid for at Counter A, but
Francisco dismissed the idea and remarked that Javier would naturally side with
her. He just instructed her to call him
the following day.
As
instructed, Bolanos called Francisco the next day, and was ordered not to
report the following day. She inquired
why she was being penalized as she did nothing wrong, to which Francisco
replied that she was not only being suspended but was already dismissed from
service. Bolanos protested as she was
not served a notice of termination.
However, Francisco simply replied that he has the authority to terminate
the employment of employees; hence, a notice of termination was not
necessary. Bolanos wanted to go to VMD’s
office to explain her side further, but Francisco remained adamant. He told her that even if she brought her
lawyer along with her, his decision would not change.
On
Petitioners,
for their part, presented a different version of the events.[6] They alleged that when Francisco did not see
in the journal tapes of both Counters A and B the additional food items ordered
by Javier, he asked Bolanos why said items were not punched in or unpaid. Bolanos allegedly did not give an explanation
and merely said, “Babayaran ko na lang yan.” Francisco replied, “Di iyon ang point
ko doon. Ang point ko ay naglabas
ka ng pagkain na hindi nabayaran at dishonesty yun.” Bolanos became speechless. After her duty that night, Francisco
instructed her to call him the next day.
During their
phone conversation on
On
On
The following
day, Lim was surprised to receive a Notice/Invitation[7]
from the NLRC Conciliation and
On
WHEREFORE, premises considered, the claim for illegal termination is dismissed.
However,
respondent is directed to pay the complainant a proportionate 13th
month pay for 2005 in the amount of P4,386.96 (P325
x 26 days x 6.23 mos./12).
SO ORDERED.[10]
Bolanos
appealed to the NLRC, which reversed the Labor Arbiter’s decision on
WHEREFORE, the foregoing premises considered, the instant appeal is GRANTED. The decision appealed from is REVERSED and SET ASIDE, thereby declaring the respondents-appellees guilty of illegal dismissal.
Accordingly, respondents-appellees are ordered to pay the
complainant-appellant her full backwages computed from the time she was
dismissed up to the finality of this Resolution and separation pay equivalent
to one (1) month’s salary plus her proportionate 13th month pay for
the year 2005. As computed, complainant-appellant is entitled to the following
monetary award as of
A)
Backwages
1. Basic salary
7/10/05-1/23/07
P325 x 26 x 18.43 P155,733.50
2.
13th
mo. pay
P155,733.50/12 12,977.80
3.
SILP
P325 x 5/12 x 18.43 2,495.73 171,207.03
B) Separation Pay
9/26/04-1/23/07 16,900.00
P 325 x 26 x 2
C) Proportionate 13th mo. [P]ay
1/2/05-7/9/05
P325 x 26 x 6.23/12
4,386.96
Total Award P192,493.99
SO ORDERED.[11]
Petitioners
elevated the case to the Court of Appeals which affirmed the findings of the
NLRC. Petitioners now come before us
raising the following arguments for this Court’s consideration:
I.
THE HONORABLE COURT OF APPEALS HAD DISMISSED PETITIONERS’ PETITION FINDING NO GRAVE ABUSE OF DISCRETION ON THE PART OF RESPONDENT NLRC FINDING PETITIONERS GUILTY OF ILLEGAL DISMISSAL NOTWITHSTANDING THAT THE SAME WAS UTTERLY NOT IN ACCORDANCE WITH LAW AND WITH THE APPLICABLE DECISIONS OF THE HONORABLE COURT … ON THE MATTER; AND
II.
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN NOT DISMISSING PRIVATE RESPONDENT’S COMPLAINT FOR ILLEGAL DISMISSAL.[12]
Simply
stated, the issue is whether petitioners are liable for illegal dismissal.
Petitioners
argue that no illegal dismissal took place.
They aver that Francisco just informed Bolanos that her case was still
under investigation. Indeed, the Henlin
Panay management did not give her any notice of termination nor prevented her
from coming to work. Neither was she
stripped of her right to work in the premises.
They insist that it was Bolanos who, after the incident, refused to work
despite being required to report for duty.
They aver that Francisco had no authority to dismiss employees.
Bolanos for
her part, counters that she was not only suspended, but was in fact dismissed
from her job by Henlin Panay through Francisco.
She belies petitioners’ claim that she refused to report to work, and
argues that petitioners have the burden of proof to show that she abandoned her
work.
After careful
consideration, we find that the petition lacks merit.
To constitute
abandonment, there must be a clear and deliberate intent to discontinue one’s
employment without any intention of returning.
Two elements must concur: (1) failure to report for work or absence
without valid or justifiable reason, and (2) a clear intention to sever the
employer-employee relationship, with the second element as the more
determinative factor and being manifested by some overt acts.[13] It is the employer who has the burden of
proof to show a deliberate and unjustified refusal of the employee to resume
his employment without any intention of returning.[14]
In the
instant case, petitioners failed to prove that it was Bolanos who refused to
report for work despite being asked to return to work. Petitioners merely presented the affidavits
of the officers of Henlin Panay narrating their version of the facts. These affidavits, however, are not only
insufficient but also undeserving of credit as they are self-serving. Petitioners failed to present memoranda or
show-cause letters served on Bolanos at her last known address requiring her to
report for work or to explain her absence, with a warning that her failure to
report would be construed as abandonment of work. Also, if indeed Bolanos abandoned her work,
petitioners should have served her a notice of termination as required by
law. Petitioners’ failure to comply with
said requirement bolsters Bolanos’s claim that she did not abandon her work but
was dismissed.
Moreover, if
Bolanos had indeed forsaken her job, she would not have bothered to file a
complaint for illegal dismissal. It is
well settled that the filing by an employee of a complaint for illegal
dismissal is proof of her desire to return to work, thus negating the
employer’s charge of abandonment.[15]
Also, as
correctly held by the appellate court, there is no basis for petitioners’
theory that it is only in Bolanos’s mind that she was dismissed from her
job. It is hard to believe that Bolanos
would imagine or think that she was dismissed from work when in fact she was
not. Petitioners claim that being a mere
store supervisor, Francisco had no authority to dismiss employees from their
employment. However, Francisco may have
convincingly appeared to have authority to dismiss employees for Bolanos to
think that she was indeed fired from work.
Petitioners could have dispelled this false belief of Bolanos, if after
the alleged dismissal they required her to report for work through a memorandum
or letter. This, however, they failed to
do. Hence, even if Francisco had no
authority to dismiss employees, his act of dismissing Bolanos was ratified by
the management when it failed to rectify Francisco’s pretense which was
allegedly beyond the scope of his functions as store supervisor.
Clearly,
Bolanos’s case is one of illegal dismissal.
First, there is no just or authorized cause for petitioners to terminate
her employment. Her alleged act of
dishonesty of “passing out” food for free was not proven. Neither was there incompetence on her part
when some food items were not punched in the cash register as she was not the
cashier manning it when the food items were ordered. In fact, the other cashier even owned up to
said mistake. Second, Bolanos was not
afforded due process by petitioners before she was dismissed. A day after the incident, she was verbally
dismissed from her employment without being given the chance to be heard and
defend herself.
Article 279[16]
of the Labor Code, as amended, provides that an illegally dismissed employee
shall be entitled to reinstatement without loss of seniority rights, full
backwages and other benefits or their monetary equivalent computed from the
time her compensation was withheld from her up to her actual reinstatement.
In the
instant case, however, we will not order Bolanos’s reinstatement as she did not
pray for it and considering that antagonism caused a severe strain in the
parties’ employer-employee relationship.
Instead, she is awarded separation pay pegged at one month pay for every
year of service reckoned from her first day of employment up to the finality of
this decision.
This Court
notes that the NLRC awarded backwages, 13th month pay, and service
incentive leave pay from
WHEREFORE, the petition is DENIED. The
assailed Decision dated
Let the
records of this case be remanded to the Labor Arbiter for the proper
computation of the exact amounts due respondent Nory A. Bolanos.
SO ORDERED.
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LEONARDO A. QUISUMBING Associate Justice |
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WE CONCUR: ANTONIO T.
CARPIO
Associate Justice |
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CONCHITA
CARPIO MORALES Associate Justice |
LUCAS P.
BERSAMIN Associate Justice |
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ROBERTO A.
ABAD Associate Justice |
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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.
LEONARDO
A. QUISUMBING
Associate Justice
Chairperson
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, I certify 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
* Additional member per Special Order No. 757.
** Additional member per Special Order No. 765.
[1] Rollo, pp. 26-38. Penned by Associate Justice Jose L. Sabio, Jr., with Associate Justices Noel G. Tijam
and Myrna Dimaranan Vidal concurring.
[2]
[3] CA rollo, pp. 24-31.
[4] Also docketed as NLRC NCR CA No. 048820-06.
[5] Records, p. 2.
[6]
[7]
[8] CA rollo, p. 36.
[9] Records, pp. 69-78.
[10]
[11] CA rollo, p. 30.
[12] Rollo, pp. 10-11.
[13] Camua, Jr. v. National Labor Relations Commission, G.R. No. 158731, January 25, 2007, 512 SCRA 677, 682.
[14] City Trucking Inc., v. Balajadia, G.R. No. 160769, August 9, 2006, 498 SCRA 309, 315; Big AA Manufacturer v. Antonio, G.R. No. 160854, March 3, 2006, 484 SCRA 33, 45.
[15] Veterans Security Agency, Inc. v. Gonzalvo, Jr., G.R. No. 159293, December 16, 2005, 478 SCRA 298, 305; Hodieng Concrete Products v. Emilia, G.R. No. 149180, February 14, 2005, 451 SCRA 249, 254.
[16] ART. 279. Security of Tenure. —In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.
[17]