Republic of the
Supreme Court
FIRST DIVISION
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EXODUS INTERNATIONAL |
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G.R. No. 166109 |
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CONSTRUCTION CORPORATION |
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and ANTONIO P. JAVALERA, |
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Petitioners, |
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Present: |
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-versus- |
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VELASCO, JR., |
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NACHURA,⃰ |
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GUILLERMO BISCOCHO, |
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FERNANDO PEREDA, FERDINAND |
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PEREZ, JJ. |
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MARIANO, GREGORIO BELLITA |
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and MIGUEL BOBILLO, |
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Promulgated: |
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Respondents. |
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February 23, 2011 |
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D E C I S I O N
In illegal dismissal cases, it is incumbent upon the employees to first
establish the fact of their dismissal before the burden is shifted to the
employer to prove that the dismissal was legal.
This Petition for Review
on Certiorari[1] assails the Decision[2] dated August 10, 2004 of
the Court of Appeals (CA) in CA-G.R. SP No. 79800, which dismissed the petition
for certiorari challenging the Resolutions dated January 17, 2003[3] and July 31, 2003[4] of the National Labor
Relations Commission (NLRC) in NLRC NCR CASE Nos. 30-11-04656-00[5] and 30-12-04714-00.
Factual
Antecedents
Petitioner
Exodus International Construction Corporation (Exodus) is a duly licensed labor
contractor for the painting of residential houses, condominium units and
commercial buildings. Petitioner Antonio P. Javalera is the President and
General Manager of Exodus.
On February 1,
1999, Exodus obtained from Dutch Boy Philippines, Inc. (Dutch Boy) a contract[6]
for the painting of the
In the furtherance
of its business, Exodus hired respondents as painters on different dates with
the corresponding wages appearing opposite their names as hereunder listed:
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NAME |
DATE EMPLOYED |
DAILY SALARY |
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1. Guillermo B. Biscocho |
Feb. 8, 1999 |
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2. Fernando S. Pereda |
Feb. 8, 1999 |
235.00 |
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3. Ferdinand M. Mariano |
April 12, 1999 |
235.00 |
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4. Gregorio S. Bellita |
May 20, 1999 |
225.00 |
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5. Miguel B. Bobillo |
March 10, 2000 |
220.00 |
Guillermo
Biscocho (Guillermo) was assigned at the
Gregorio S.
Bellita (Gregorio) was assigned to work at the house of Mr. Teofilo Yap in
Ayala Alabang,
Miguel B.
Bobillo (Miguel) was hired and assigned at
On November 27,
2000, Guillermo, Fernando, Ferdinand, and Miguel filed a complaint[8]
for illegal dismissal and non-payment of holiday pay, service incentive leave pay,
13th month pay and night-shift differential pay. This was docketed as NLRC NCR CASE No.
30-11-04656-00.
On December 1,
2000, Gregorio also filed a complaint[9]
which was docketed as NLRC NCR CASE No. 30-12-04714-00. He claimed that he was dismissed from the
service on September 12, 2000 while Guillermo, Fernando, Ferdinand, and Miguel
were orally notified of their dismissal from the service on November 25, 2000.
Petitioners
denied respondents’ allegations. As regards Gregorio, petitioners averred that
on September 15, 2000, he absented himself from work and applied as a painter
with SAEI-EEI which is the general building contractor of
Guillermo absented
himself from work without leave on November 27, 2000. When he reported for work the following day,
he was reprimanded for being Absent Without Official Leave (AWOL). Because of the reprimand, he worked only
half-day and thereafter was unheard of until the filing of the instant complaint.
Fernando, Ferdinand,
and Miguel were caught eating during working hours on November 25, 2000 for
which they were reprimanded by their foreman.
Since then they no longer reported for work.
Ruling of the Labor Arbiter
On March 21,
2002, the Labor Arbiter rendered a Decision[10]
exonerating petitioners from the charge of illegal dismissal as respondents chose
not to report for work. The Labor
Arbiter ruled that since there is neither illegal dismissal nor abandonment of
job, respondents should be reinstated but without any backwages. She disallowed the claims for premium pay for
holidays and rest days and nightshift differential pay as respondents failed to
prove that actual service was rendered on such non-working days. However, she allowed the claims for holiday
pay, service incentive leave pay and 13th month pay. The dispositive
portion of the Labor Arbiter’s Decision reads:
WHEREFORE, premises considered, respondents Exodus International Construction Corporation and/or Antonio Javalera are hereby ordered to reinstate complainants to their former positions as painters without loss of seniority rights and other benefits appurtenant thereto without any backwages.
Respondents are likewise hereby ordered to pay complainants the following:
1.
Guillermo Biscocho
P 1,968.75 - Service Incentive Leave Pay
10,237.50 - 13th Month Pay
3,600.00 -
P 15,806.25 - Sub-Total
+ 1,580.87 - 10% Attorney’s Fees
2.
Fernando Pereda
P 2,056.25 - Service Incentive Leave Pay
10,692.50 - 13th Month Pay
3,525.00 -
P 16,273.75 - Sub-Total
+ 1,627.37 - 10% Attorney’s Fees
3.
Miguel
Bobillo
P 3,813.34 - 13th Month Pay
1,320.00 -
P 5,133.34 - Sub-Total
+ 513.33 - 10% Attorney’s Fees
4. Ferdinand
Mariano
P 1,860.42 - Service Incentive Leave Pay
9,674.19 - 13th Month Pay
3,055.00 -
P 14,589.61 - Sub-Total
+ 1,458.96 - 10% Attorney’s Fees
5.
Gregorio
Bellita
P 1,500.00 - Service Incentive Leave Pay
7,800.00 - 13th Month Pay
2,700.00 -
P 12,000.00 - Sub-Total
+ 1,200.00 - 10% Attorney’s Fees
or the total aggregate sum of Seventy Thousand,
One Hundred Eighty Three and 23/100 (P70,183.23) Pesos, inclusive of the
ten (10%) percent of the award herein by way of attorney’s fees, all within ten
(10) days from receipt hereof;
The rest of complainants’ claims for lack of merit
are hereby Dismissed.
SO
ORDERED.[11]
Petitioners sought recourse to the NLRC limiting their appeal to the
award of service incentive leave pay, 13th month pay, holiday pay
and 10% attorney’s fees in the sum of P70,183.23.
On January 17, 2003, the NLRC
dismissed the appeal. It ruled that petitioners, who have complete control over
the records of the company, could have easily rebutted the monetary claims
against it. All that it had to do was to
present the vouchers showing payment of the same. However, they opted not to lift a finger,
giving an impression that they never paid said benefits.
As to the award of attorney’s fees, the
NLRC found the same to be proper because respondents were forced to litigate in
order to validate their claim.
The NLRC thus affirmed the Decision
of the Labor Arbiter, viz:
Accordingly, premises considered,
the decision appealed from is hereby AFFIRMED and the appeal DISMISSED for lack
of merit.
SO
ORDERED.[12]
Petitioners filed a Motion for
Reconsideration[13]
which was denied by the NLRC in a Resolution[14] dated
July 31, 2003.
Ruling of the Court of Appeals
Aggrieved, petitioners filed with
the CA a petition for certiorari. The CA through a Resolution[15]
dated October 22, 2003, directed the respondents to file their comment. On December 4, 2003, respondents filed their
comment.[16] On January 12, 2004, petitioners filed their
reply.[17]
On August 10, 2004, the CA dismissed
the petition and affirmed the findings of the Labor Arbiter and the NLRC. It opined that in a situation where the
employer has complete control over the records and could thus easily rebut any
monetary claims against it but opted not to lift any finger, the burden is on
the employer and not on the complainants. This is so because the latter are definitely
not in a position to adduce any documentary evidence, the control of which
being not with them.
However, in addition to the reliefs
awarded to respondents in the March 21, 2002 Decision of the Labor Arbiter
which was affirmed by the NLRC in a Resolution dated January 17, 2003, the
petitioners were directed by the CA to solidarily pay full backwages, inclusive
of all benefits the respondents should have received had they not been
dismissed.
The dispositive portion of the CA
Decision reads:
WHEREFORE, the instant petition for certiorari is
dismissed. However, in addition to the
reliefs awarded to private respondents in the decision dated March 21, 2002 of
Labor Arbiter Aldas and resolution of the NLRC dated January 17, 2003, the petitioners
are directed to solidarily pay private respondents full backwages, inclusive of
all benefits they should have received had they not been dismissed, computed
from the time their wages were withheld until the time they are actually
reinstated. Such award of full backwages
shall be included in the computation of public respondents’ award of ten
percent (10%) attorney’s fees.
SO ORDERED.[18]
Petitioners
moved for reconsideration,[19]
but to no avail. Hence, this appeal anchored
on the following grounds:
Issues
I.
The Honorable Court of Appeals erred and committed
grave abuse of discretion in ordering the reinstatement of respondents to their
former positions which were no longer existing because its findings of facts
are premised on misappreciation of facts.
II.
The Honorable Court of Appeals also seriously
erred and committed grave abuse of discretion in affirming the award of service
incentive leave pay, 13th month pay, and holiday pay in the absence
of evidentiary and legal basis therefor.
III.
The Honorable Court of Appeals likewise seriously
erred and committed grave abuse of discretion in affirming the award of
attorney's fees even in the absence of counsel on record to handle and
prosecute the case.
IV.
The Honorable Court of Appeals also seriously
erred and gravely abused its discretion in holding individual petitioner
solidarily liable with petitioner company without specific evidence on which
the same was based.[20]
Petitioners’ Arguments
Petitioners contend that,
contrary to their allegations, respondents were never dismissed from the
service. If respondents find themselves
no longer in the service of petitioners, it is simply because of their refusal
to report for work. Further, granting
that they were dismissed, respondents’ prolonged absences is tantamount to
abandonment which is a valid ground for the termination of their employment. As to respondents monetary claims, it is
incumbent upon them to prove the same because the burden of proof rests on
their shoulders. But since respondents
failed to prove the same, their claims should be denied.
Respondents’
Arguments
Respondents, in support of their
claim that they were illegally dismissed, argue that as painters, they
performed activities which were necessary and desirable in the usual business
of petitioners, who are engaged in the business of contracting painting
jobs. Hence, they are regular employees
who, under the law, cannot just be dismissed from the service without prior
notice and without any just or valid cause. According to the respondents, they did not
abandon their job. For abandonment to
serve as basis for a valid termination of their employment, it must first be
established that there was a deliberate and unjustified refusal on their part
to resume work. Mere absences are not
sufficient for these must be accompanied by overt acts pointing to the fact
that they simply do not want to work anymore. Petitioners failed to prove this. Furthermore, the filing of a complaint for
illegal dismissal ably defeats the theory of abandonment of the job.
Our Ruling
The petition is partly
meritorious.
“[T]his Court is not unmindful of
the rule that in cases of illegal dismissal, the employer bears the burden of
proof to prove that the termination was for a valid or authorized cause.”[21]
But “[b]efore the [petitioners] must
bear the burden of proving that the dismissal was legal, [the respondents] must
first establish by substantial evidence” that indeed they were dismissed. “[I]f there is no dismissal, then there can be
no question as to the legality or illegality thereof.”[22]
There was no dismissal in this case, hence, there is no question that can be entertained regarding its legality or illegality.
As found by the Labor Arbiter, there
was no evidence that respondents were dismissed nor were they prevented from
returning to their work. It was only
respondents’ unsubstantiated conclusion that they were dismissed. As a matter of fact, respondents could not name
the particular person who effected their dismissal and under what particular
circumstances.
In Machica
v.
The rule is that one who alleges a fact has the
burden of proving it; thus, petitioners were burdened to prove their allegation
that respondents dismissed them from their employment. It must be stressed that
the evidence to prove this fact must be clear, positive and convincing. The
rule that the employer bears the burden of proof in illegal dismissal cases
finds no application here because the respondents deny having dismissed the
petitioners.
In this case, petitioners were able
to show that they never dismissed respondents. As to the case of Fernando, Miguel and
Ferdinand, it was shown that on November 25, 2000, at around 7:30 a.m., the
petitioners’ foreman, Wenifredo Lalap (Wenifredo) caught the three still eating
when they were supposed to be working already. Wenifredo reprimanded them and, apparently,
they resented it so they no longer reported for work. In the case of Gregorio, he absented himself
from work on September 15, 2000 to apply as a painter with SAEI-EEI, the
general contractor of
Hence, as between respondents’
general allegation of having been orally dismissed from the service vis-a-vis
those of petitioners which were found to be substantiated by the sworn
statement of foreman Wenifredo, we are persuaded by the latter. Absent any showing of an overt or positive act
proving that petitioners had dismissed respondents, the latters’ claim of
illegal dismissal cannot be sustained. Indeed,
a cursory examination of the records reveal no illegal dismissal to speak of.
There
was also no abandonment of work on the part of the respondents.
The Labor Arbiter is also correct in
ruling that there was no abandonment on the part of respondents that would
justify their dismissal from their employment.
It is a settled rule
that “[m]ere absence or failure to report for work x x x is not enough to
amount to abandonment of work.”[24] “Abandonment
is the deliberate and unjustified refusal of an employee to resume his
employment.”[25]
In Northwest Tourism
Corporation v. Former Special 3rd Division of the Court of Appeals[26] this
Court held that “[t]o constitute abandonment of work, two elements must concur,
[namely]:
(1)
the employee
must have failed to report for work or must have been absent without valid or
justifiable reason; and
(2)
there must
have been a clear intention on the part of the employee to sever the
employer-employee relationship manifested by some overt act.”
“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.”[27] It is therefore incumbent upon petitioners to
ascertain the respondents’ interest or non-interest in the continuance of their
employment. However, petitioners failed
to do so.
Respondents must be
reinstated and paid their holiday pay, service incentive leave pay, and 13th
month pay.
Clearly therefore, there was no dismissal, much less illegal, and there
was also no abandonment of job to speak of. The Labor Arbiter is therefore correct in
ordering that respondents be reinstated but without any backwages.
However, petitioners are of the position that the reinstatement of
respondents to their former positions, which were no longer existing, is
impossible, highly unfair and unjust. The project was already completed by
petitioners on September 28, 2001. Thus
the completion of the project left them with no more work to do. Having completed their tasks, their positions
automatically ceased to exist. Consequently, there were no more positions
where they can be reinstated as painters.
Petitioners are misguided. They forgot that there are two types of
employees in the construction industry. The first is referred to as project
employees or those employed in connection with a particular construction
project or phase thereof and such employment is coterminous with each project
or phase of the project to which they are assigned. The second is known as non-project employees
or those employed without reference to any particular construction project or
phase of a project.
The second category is where respondents are classified. As such they are regular employees of
petitioners. It is clear from the
records of the case that when one project is completed, respondents were
automatically transferred to the next project awarded to petitioners. There was
no employment agreement given to respondents which clearly spelled out the
duration of their employment, the specific work to be performed and that such
is made clear to them at the time of hiring. It is now too late for petitioners
to claim that respondents are project employees whose employment is coterminous
with each project or phase of the project to which they are assigned.
Nonetheless, assuming that respondents were initially hired as project
employees, petitioners must be reminded of our ruling in Maraguinot, Jr. v.
National Labor Relations Commission[28]
that “[a] project employee x x x may acquire the status of a regular employee
when the following [factors] concur:
1.
There is a continuous rehiring of project employees even after cessation
of a project; and
2.
The tasks performed by the alleged “project employee” are vital,
necessary and indespensable to the usual business or trade of the employer.”
In this case, the evidence on record shows that respondents were
employed and assigned continuously to the various projects of petitioners. As painters, they performed activities
which were necessary and desirable in the usual business of petitioners, who
are engaged in subcontracting jobs for painting of residential units, condominium
and commercial buildings. As regular employees, respondents are entitled to be
reinstated without loss of seniority rights.
Respondents are also entitled to their money claims such as the payment
of holiday pay, service incentive leave pay, and 13th month pay. Petitioners as the employer of respondents and
having complete control over the records of the company could have easily
rebutted the monetary claims against it. All that they had to do was to present the
vouchers or payrolls showing payment of the same. However, they decided not to provide the said
documentary evidence. Our conclusion
therefore is that they never paid said benefits and therefore they must be
ordered to settle their obligation with the respondents.
Respondents are also
entitled to the payment of attorney’s fees.
Even though respondents were not represented by counsel in most of the
stages of the proceedings of this case, the award of attorney’s fees as ruled
by the Labor Arbiter, the NLRC and the CA to the respondents is still proper. In Rutaquio v. National Labor Relations
Commission,[29]
this Court held that:
It is settled that
in actions for recovery of wages or where an employee was forced to litigate
and, thus, incur expenses to protect his rights and interest, the award of
attorney’s fees is legally and morally justifiable.
In Producers Bank of the Philippines v. Court of Appeals[30]
this Court ruled that:
Attorney’s fees may
be awarded when a party is compelled to litigate or to incur expenses to
protect his interest by reason of an unjustified act of the other party.
In
this case, respondents filed a complaint for illegal dismissal with claim for
payment of their holiday pay, service incentive leave pay, and 13th
month pay. The Labor Arbiter, the NLRC
and the CA were one in ruling that petitioners did not pay the respondents
their holiday pay, service incentive leave pay, and 13th month pay
as mandated by law. For sure, this
unjustified act of petitioners had compelled the respondents to institute an
action primarily to protect their rights and interests.
The CA erred when it
ordered reinstatement of respondents with payment of full backwages.
It
must be noted that the Labor Arbiter’s disposition directed petitioners to
reinstate respondents without any backwages and awarded the payment of service
incentive leave pay, holiday pay, 13th month pay, and 10% attorney’s
fees in the sum of P70,183.23.
On
appeal to the NLRC, petitioners limited their appeal to the award of service
incentive leave pay, holiday pay, 13th month pay, and 10% attorney’s
fees. No appeal was made on the order of reinstatement.
In
the proceedings before the CA, it is only the award of service incentive leave
pay, holiday pay, 13th month pay, and 10% attorney’s fees that were
raised by the petitioners. The CA in
fact dismissed the petition. However,
the CA further concluded in its Decision that since there is no abandonment to
speak about, it is therefore indisputable that respondents were illegally
dismissed. Therefore, they deserve not
only reinstatement but also the payment of full backwages.
We do not agree with this ruling of the CA.
In cases where there is no evidence
of dismissal, the remedy is
reinstatement but without backwages. In this case, both the Labor Arbiter and the
NLRC made a finding that there was no dismissal much less an illegal one. “It is settled that factual findings of
quasi-judicial agencies are generally accorded respect and finality so long as
these are supported by substantial evidence.”[31]
In Leonardo v. National Labor Relations Commission,[32]
this Court held that:
In a case where the employee’s
failure to work was occasioned neither by his abandonment nor by a termination,
the burden of economic loss is not rightfully shifted to the employer; each
party must bear his own loss.
Thus, inasmuch as no finding of illegal dismissal had been made, and
considering that the absence of such finding is supported by the records of the
case, this Court is bound by such conclusion and cannot allow an award of the
payment of backwages.
Lastly, since there was no need to award backwages to respondents, the
ruling of the CA that Javalera is solidarily liable with Exodus International
Construction Corporation in paying full backwages need not be discussed.
WHEREFORE, the instant petition for review on certiorari is PARTLY
GRANTED. The Decision of the Court of Appeals in CA-G.R. SP No. 79800 dated August 10, 2004, is AFFIRMED with MODIFICATION that the award
of full backwages is DELETED for lack of legal basis.
SO ORDERED.
MARIANO C.
Associate Justice
WE
CONCUR:
RENATO C. CORONA
Chief Justice
Chairperson
|
PRESBITERO J. VELASCO, JR. Associate Justice |
ANTONIO EDUARDO B. NACHURA Associate Justice |
JOSE
Associate Justice
C E R T I F I C A T I O N
Pursuant
to Section 13, Article VIII of the Constitution, 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.
RENATO C. CORONA
Chief Justice
⃰ In lieu of Justice Teresita J.
Leonardo-De Castro per Special Order No. 947 dated February 1, 2011.
[1] Rollo, pp. 10-30.
[2] CA rollo, pp. 186-198; penned by Associate Justice Vicente S.E. Veloso and concurred in by Associate Justices Roberto A. Barrios and Amelita G. Tolentino.
[3]
[4]
[5] Denominated as NLRC NCR CASE No.
30-11-004650-00 in some parts of the records.
[6] CA rollo, pp. 59-61.
[7]
[8]
[9]
[10]
[11]
[12]
[13]
[14]
[15]
[16]
[17]
[18]
[19]
[20] Rollo,
pp. 16-17.
[21] Ledesma, Jr. v. National Labor Relations Commission, G.R. No. 174585, October 19, 2007, 537 SCRA 358, 370.
[22]
[23] G.R. No. 168664, May 4, 2006, 489 SCRA 534, 544-545.
[24] New Ever Marketing, Inc. v Court of Appeals, 501 Phil. 575, 586 (2005).
[25] NEECO II v. National Labor Relations Commission, 499 Phil. 777, 789 (2005).
[26] 500 Phil. 85, 95 (2005).
[27] R. Transport Corporation v. Ejandra, G.R. No. 148508, May 20, 2004, 428 SCRA 725, 732.
[28] 348 Phil. 580, 601 (1998).
[29] 375 Phil. 405, 418 (1999), citing Philippine National Construction Corporation v. National Labor Relations Commission, 342 Phil. 769, 784 (1997).
[30] 417 Phil. 646, 661 (2001).
[31] Reno Foods, Inc. v. Nagkakaisang Lakas ng Manggagawa, G.R. No. 164016, March 15, 2010.
[32] 389 Phil. 118, 128 (2000).