TACLOBAN FAR
EAST G.R. No. 182320
MARKETING
CORPORATION
and
FRANCISCO Y. ROMUALDEZ,
Petitioners, Present:
Ynares-Santiago, J. (Chairperson),
- versus - Chico-Nazario,
Velasco, Jr.,
Nachura, and
Peralta, JJ.
THE COURT OF APPEALS, NATIONAL
LABOR RELATIONS COMMISSION
and BENJAMIN Q. SABULAO, Promulgated:
Respondents.
September 11, 2009
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YNARES-SANTIAGO,
J.:
Assailed in this petition for review on certiorari is the Decision[1] of
the Court of Appeals dated August 23, 2007 in CA-G.R. SP No. 01027 which
affirmed the Decision[2] of the National Labor Relations
Commission (NLRC) dated June 25, 2004 and its Resolution[3]
dated June 30, 2005 declaring petitioners guilty of illegal dismissal. Also assailed is the Court of Appeals’ Resolution[4]
denying the motion for reconsideration.
Sometime
in 1989, petitioners hired private respondent Benjamin Sabulao as helper in its
hardware business, then as a delivery truck driver from 1993 until May 12,
2001. During the first week of May 2001,
Sabulao alleged that he asked permission to be absent for five days due to his
grandfather’s death; that petitioner Francisco Romualdez granted his request
but when he reported for work on May 12, 2001, he was informed not to work
anymore. Thereafter, he returned to his
hometown and engaged in the copra business to support the needs of his family.
On August 10, 2001, Sabulao together
with Mario Villanueva filed before the NLRC’s Regional Arbitration Branch No.
VIII, a complaint for illegal dismissal and money claims against
petitioners. Eventually, Mario
Villanueva executed a Statement of Quitclaim and Release hence, his complaint
was dismissed.
Petitioners
denied having illegally dismissed Sabulao and alleged that he abandoned his
work. Allegedly, Sabulao had been a
frequent absentee without notice since March and April of 2001 that petitioners
would even send Edgar Enopia to fetch him to report for work. During the first week of May 2001,
petitioners learned that Sabulao was already engaged in the “Ukay-Ukay”
business.
On
October 2, 2002, the Labor Arbiter rendered a Decision[5]
finding Sabulao to have abandoned his work.
At the same time, petitioners were ordered to pay Sabulao his salary
differentials and service incentive leave pay.
The other money claims were denied for failure to substantiate the same.
The dispositive portion of the decision reads:
WHEREFORE, premises considered, judgment is hereby rendered–
1. Finding no illegal dismissal of complainant;
2. Ordering respondent to pay complainant:
a. Salary differentials:
May
11, 1998 to Dec. 31, 1999
(P153 – P130 = P23.00 x 511 days) = P11, 753.00
Jan.
2, 2000 – Oct. 31, 2000
(P163 – P160 = P3.00 x 259 days) = 777.00
Nov.
1, 2000 – Dec. 31, 2000
(P173 – P160 = P13.00 x 51 days) = 663.00
Jan.
2, 2001 – Apr. 30, 2001 = NIL
May
1, 2001 – May 11, 2001
(P177.00 – P173 = P4.00 x 10 days) = 40.00
P13,
233.00
b. Service Incentive Leave Pay
1998 – P153 x 5 days = 765.00
1999 – P153 x 5 days = 765.00
2000
– P173 x 5 days = 865.00
P
2,395.00
GRAND TOTAL P15,628.00
3. All other claims are denied for lack of merit.
SO
ORDERED.[6]
On
appeal, the NLRC reversed the decision of the Labor Arbiter, thus:
WHEREFORE, premises considered, the decision of the Labor Arbiter is hereby SET ASIDE and VACATED and a new one entered finding complainant to have been illegally dismissed. As such, respondent (Tacloban) Far East (M)arketing Corporation is hereby ORDERED to pay complainant his backwages and separation pay from the date of dismissal up to the date of this decision. In addition, respondent is ORDERED to pay salary differentials and service incentive leave pay in the amount of P15,628.00.
SO ORDERED.[7]
The NLRC found that Sabulao’s frequent
absences could not by itself constitute abandonment and that no proof of overt
acts was adduced showing that he intended to abandon his work; that the
three-month delay in the filing of the case is not an indication of
abandonment; and that the amounts mentioned in the mandatory conference before
the labor arbiter should not be considered in determining the merits of the
case.
Petitioners filed a motion for
reconsideration but it was denied by the NLRC in its Resolution dated June 30,
2005. In addition, as prayed for by Sabulao,
the NLRC made a detailed computation of the award due him as follows:
Backwages: May 2001 – June 2005 P209,332.99
13th month pay 12,558.00
SILP 640.00
222,529.99
Salary
Differentials 15,628.00
TOTAL DIFFERENTIALS P238, 157.99[8]
Thereafter, petitioners filed a
Petition for Certiorari before the Court of Appeals which rendered the herein
assailed Decision denying the petition and affirming the NLRC Decision finding
respondent to have been illegally dismissed.
The Court of Appeals held that the
act of filing a complaint for illegal dismissal negates any intention on the
part of the employee to abandon his job; that Sabulao’s filing of the complaint
for illegal dismissal only after three months from the time he was dismissed
would not negate the finding that he did not abandon his work; that his returning
to his hometown and engaging in copra business could not be taken against him;
that engaging in the “Ukay-Ukay” business neither demonstrated an intention to
abandon his job; that mere absence is not enough to constitute abandonment, rather,
it should be coupled with overt acts showing that the employee is no longer
interested to work anymore; and that Sabulao’s prayer for separation pay should
not be taken against him.
Petitioners’
motion for reconsideration was denied on January 24, 2008; hence, this petition
raising the following issues:
A.
THE QUESTIONED DECISION OF THE HONORABLE
COURT OF APPEALS IS BASED ON MISAPPRECIATION OF THE EVIDENCE PRESENTED BEFORE
THE LABOR ARBITER AND IT OVERLOOKED FACTS OF SUBSTANCE AND VALUE, THAT IF
CONSIDERED WOULD DEFINITELY CONCLUDE THAT PRIVATE RESPONDENT ABANDONED HIS
EMPLOYMENT WITH HEREIN PETITIONER, HENCE, IN DOING SO, THE HONORABLE COURT OF
APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION.
B.
PUBLIC RESPONDENT THE HONORABLE COURT OF
APPEALS COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO EXCESS OF OR LACK OF
JURISDICTION WHEN IT ORDERED THE PAYMENT OF BACKWAGES AND OTHER CLAIMS TO
PRIVATE RESPONDENT DESPITE A PREPONDERANCE OF EVIDENCE SHOWING AN ABANDONMENT
OF WORK BY PRIVATE RESPONDENT.
The petition lacks merit.
At the outset, it must be stated that
petitioners adopted the wrong mode of remedy in bringing the case before this
Court. It is well-settled that the
proper recourse of an aggrieved party to assail the decision of the Court of
Appeals is to file a petition for review on certiorari under Rule 45 of the
Rules of Court.[9] The Rules precludes recourse to the special
civil action of certiorari if appeal, by way of a petition for review is
available, as the remedies of appeal and certiorari are mutually exclusive and
not alternative or successive.[10]
For a writ of certiorari to issue, a
petitioner must not only prove that the tribunal, board or officer exercising
judicial or quasi-judicial functions has acted without or in excess of
jurisdiction but must also show that he has no plain, speedy and adequate
remedy in the ordinary course of law.[11] Certiorari cannot be used as a substitute for
a lost appeal. Though there are
instances when certiorari was granted despite the availability of appeal,[12] none of
these recognized exceptions was shown to be present in the case at bar.
Moreover, while it is true that the
Court may treat a Petition for Certiorari as having been filed under Rule 45 in
the interest of substantial justice, the present petition could not be given
the same leniency because it was filed beyond the 15-day reglementary period
within which to file a petition for review on certiorari. The records of the case show that petitioners
received a copy of the January 24, 2008 Resolution of the Court of Appeals denying
the motion for reconsideration on February 5, 2008. Instead of filing a petition for review on
certiorari within 15 days from receipt thereof, petitioners waited for two
months before filing the instant petition.
Accordingly, the decision of the Court of Appeals had already become
final and executory and beyond the purview of this Court to act upon.[13]
The inescapable conclusion is that the present petition was filed
belatedly to make up for a lost appeal.
At any rate, even if the Court allows
the present petition for certiorari, it would still be dismissible for lack of
grave abuse of discretion amounting to lack of or excess of jurisdiction on the
part of the Court of Appeals. For
certiorari to prosper, the abuse of discretion must be so patent and gross as
to amount to an evasion of positive duty or to a virtual refusal to perform a
duty enjoined by law, or to act at all in contemplation of law, as where the
power is exercised in an arbitrary and despotic manner by reason of passion or
personal hostility.[14]
In the instant case, there was no
showing that the Court of Appeals ruled in a capricious and whimsical manner
amounting to an arbitrary exercise of its powers.
It is well-settled that in
termination cases, the burden of proof rests upon the employer to show that the
dismissal was for a just and valid cause and failure to discharge the same
would mean that the dismissal is not justified and therefore illegal. Hence, in arguing that Sabulao abandoned his
work, it is incumbent upon the petitioners to prove: (1) that the employee
failed to report for work or had 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. Clearly, jurisprudence dictates that the
burden of proof to show that there was unjustified refusal to go back to work
rests on the employer.[15]
The NLRC, as affirmed by the Court of
Appeals, correctly found that petitioners failed to substantiate its claim that
Sabulao abandoned his work. No evidence
was presented to prove that Sabulao clearly intended to sever the
employer-employee relationship as manifested by some overt acts. As regards petitioners’ allegation that
Sabulao is a field personnel and therefore not entitled to the money claims
awarded by the NLRC, suffice it to state that the issue was raised only before
the Court of Appeals in contravention to the rule that questions not raised before
the tribunals a quo cannot be raised for
the first time on appeal.[16] As such, it deserves no consideration by this
Court.
WHEREFORE, the
instant petition is DENIED for lack
of merit. The August 23, 2007 Decision
of the Court of Appeals in CA-G.R. SP No. 01027 which affirmed the Decision of
the National Labor Relations Commission declaring petitioners guilty of illegal
dismissal, and the January 24, 2008 Resolution denying the motion for
reconsideration, are AFFIRMED.
SO ORDERED.
CONSUELO
YNARES-SANTIAGO
Associate Justice
WE
CONCUR:
MINITA V. CHICO-NAZARIO
Associate Justice
PRESBITERO J. VELASCO, JR. ANTONIO
EDUARDO B. NACHURA
Associate Justice
Associate Justice
DIOSDADO M. PERALTA
Associate Justice
ATTESTATION
I
attest 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.
CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division
CERTIFICATION
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
were 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] Rollo, pp. 22-31. Penned by Associate Justice Francisco P. Acosta and concurred in by Associate Justices Agustin S. Dizon and Stephen C. Cruz.
[2]
[3]
[4]
[5]
[6]
[7]
[8]
[9] Rules of Court, Rule 45, Section 1. Filing of petition with Supreme Court. — A party desiring to appeal by certiorari from a judgment or final order or resolution of the Court of Appeals, the Sandiganbayan, the Regional Trial Court or other courts whenever authorized by law, may file with the Supreme Court a verified petition for review on certiorari. The petition shall raise only questions of law which must be distinctly set forth.
[10] Rigor v. Tenth Division of the Court of Appeals, G.R. No. 167400, June 30, 2006, 494 SCRA 375, 381-382.
[11] Rules of Court, Rule 65, Section 1. Petition for certiorari. When any tribunal, board or officer exercising judicial or quasi-judicial functions has acted without or in excess of its or his jurisdiction, or with grave abuse of discretion amounting to lack or excess of jurisdiction, and there is no appeal, or any plain, speedy, and adequate remedy in the ordinary course of law, a person aggrieved thereby may file a verified petition in the proper court, alleging the facts with certainty and praying that judgment be rendered annulling or modifying the proceedings of such tribunal, board or officer, and granting such incidental reliefs as law and justice may require.
The petition shall be accompanied by a certified true copy of the judgment, order or resolution subject thereof, copies of all pleadings and documents relevant and pertinent thereto, and a sworn certification of non-forum shopping as provided in the third paragraph of section 3, Rule 46.
[12] These exceptions include: (a) when public welfare and the advancement of public policy dictates; (b) when the broader interest of justice so requires; (c) when the writs issued are null and void; or (d) when the questioned order amounts to an oppressive exercise of judicial authority. Iloilo La Filipina Uygongco Corporation v. Court of Appeals, G.R. No. 170244, November 28, 2007, 539 SCRA 178, 189.
[13] See Iloilo La Filipina Uygongco Corporation v. Court of Appeals, supra note 12 at 190.
[14] Nationwide Security and Allied Services, Inc. v. Court of Appeals, G.R. No. 155844, July 14, 2008, 558 SCRA 148, 153.
[15] See Macahilig v. National Labor Relations Commission, G.R. No. 158095, November 23, 2007, 538 SCRA 375, 384-385.
[16] Hermogenes v. Osco Shipping Services, Inc., G.R. No. 141505, August 18, 2005, 467 SCRA 301, 310.