researcgh 1

8/9/2019 researcgh 1

1/17


2/17

*F)R( *:<


3/17


4/17

Petitioners, ho$ever, insisted that $hile Colambot $as suspended due to insubordination and ne#li#ence, theymaintained that they never terminated Colambot s employment. 0hey added that Colambot s failure to report for $or% since


5/17

case that the employee $as dismissed from employment. Before the employer must bear the burden of provin# that thedismissal $as le#al, the employee must first establish by substantial evidence the fact of his dismissal from service. :f there is no dismissal, then there can be no 7uestion as to the le#ality or ille#ality thereof. 21

:n the present case, other than Colambot s unsubstantiated alle#ation of havin# been verbally terminated from his $or%,there $as no evidence presented to sho$ that he $as indeed dismissed from $or% or $as prevented from returnin# to his$or%. :n the absence of any sho$in# of an overt or positive act provin# that petitioners had dismissed respondent, thelatter s claim of ille#al dismissal cannot be sustained 22 as the same $ould be self/servin#, con9ectural and of no

probative value.

* revie$ of the Notice of uspension 23 dated November 2-, 2++G sho$s that respondent $as merely suspended from$or% for days, there $as, ho$ever, no evidence that Colambot $as terminated from $or%. For clarification, $e 7uote;

0) ; M*5(N C)L*MB)0

MKR M( (N>(R

FR)M ; =M*N R( )=RC(


6/17

Neither could the petitioners be blamed for failin# to order respondent to return bac% to $or%. ! $phi! Records sho$ thatColambot immediately filed the complaint for ille#al dismissal on


7/17


8/17

mana#erial employee. But $hen respondents started treatin# him as a ran%/and/file employee by ma%in# him $or% as amere technician, such act of Oclear discrimination, insensibility or disdain became unbearable to petitioner.

Further, the NLRC clarified that the phrase Oas of this date in the decretal portion of the erardo B. Collado, counsel for the respondents, and addressed to the NLRC and to petitioner s counsel, *tty.5onathan Polines.

)n 5uly !-, 2++H, the NLRC issued a Resolution !+ denyin# respondents motion for reconsideration for lac% of merit$ithout, ho$ever, passin# 9ud#ment on the alle#ation that respondents manipulated the filin# of their motion forreconsideration. 0he NLRC merely directed respondents to file a comment and@or e8planation $ithin five 3-4 days from

receipt of the aforesaid Resolution, to $hich the latter complied. !!

ubse7uently, respondents filed a petition for certiorari !2 under Rule - of the same Rules before the C*. :n its

challen#ed


9/17

F)R 0 ( (E(RC: ( B? 0 : )N)R*BL( =PR(M( C)=R0 )F :0 P)A(R )F=P(R1: :)N.

3C4

0 ( C)=R0 )F *PP(*L >R*1(L? (RR(< :N 0 *0 P(0:0:)N(R A* N)0 :LL(>*LL?


10/17

*fter a 9udicious scrutiny of the records, the alle#ations of petitioner and the defenses raised by respondents, the Court

cannot sustain the findin# of the C* that petitioner $as not ille#ally or constructively dismissed.

Constructive dismissal is defined as a 7uittin# because continued employment is rendered impossible, unreasonable or

unli%elyD $hen there is a demotion in ran% or a diminution of pay .2G 0he test of constructive dismissal is $hether areasonable person in the employee s position $ould have felt compelled to #ive up his position under the circumstances.:t is an act amountin# to dismissal but is made to appear as if it $ere not. Constructive dismissal is therefore a dismissalin disguise. 0he la$ reco#niJes and resolves this situation in favor of employees in order to protect their ri#hts and

interests from the coercive acts of the employer. 2-

*s held in the case of Coca2Cola Bottlers P"ilippines, 0nc. !s. 3el 4illar ,2 the burden falls upon the company to provethat the employee s assi#nment from one position to another $as not tantamount to constructive dismissal. :n the case at

bar, respondents failed to dischar#e said burden. :n fact, respondents ne!er e!en disputed that petitioner $as rele#atedfrom the position of ):C to supervisor and, subse7uently, to an ordinary technician. Clearly, the reduction in petitioner sresponsibilities and duties, particularly from supervisor to ordinary technician, constituted a demotion in ran tantamount

to constructive dismissal.

0hus, contrary to the position of the C*, it is of no conse7uence that petitioner failed to substantiate his alle#ation

that Loida *7uino, an employee of respondent company, informed him that he $ill be $or%in# as an ordinary technician,

and that $hen he openly voiced out his concern re#ardin# the transfer, he $as told not to report for $or% anymore. *s

$ith all the other alle#ations made by petitioner, respondents ne!er disputed or rebutted this fact.

imilarly, Ae cannot concur $ith the findin# of the C* that it $as petitioner $ho abandoned his employment by failin#to report for $or% or havin# #one *A)L.

O*bandonment is the deliberate and un9ustified refusal of an employee to resume his employment. 2 0o constituteabandonment of $or%, t$o elements must concur; O3!4 the employee must have failed to report for $or% or must have

been absent $ithout valid or 9ustifiable reasonD and 324 there must have been a clear intention on the part of the employee

to sever the employer/employee relationship manifested by some overt act. 2H 0he employer bears the burden of proofto sho$ the deliberate and un9ustified refusal of the employee to resume his employment $ithout any intention of

returnin# .2"

:n the case of 5odieng Concrete Products, 0nc. !. 6milia6+

, citin# amarca !. Arc2)en 0ndustries, 0nc.6!

, the Court hasruled thus;

O8 8 8. *bsence must be accompanied by overt acts unerrin#ly pointin# to the fact that the employeesimply does not $ant to $or% anymore. *nd the burden of proof to sho$ that there $as un9ustifiedrefusal to #o bac% to $or% rests on the employer.

8 8 8

*bandonment is a matter of intention and cannot li#htly be presumed from certain e7uivocal acts. 0o

constitute abandonment, there must be clear proof of deliberate and un9ustified intent to sever theemployer/employee relationship. C;e&r;7+tt" * & e ! to "$ e-7;o&";+re to re7ort >or or6 "$ ot t& t&-o+ t to &b& !o -e to> or6. 8 8 8. 3(mphasis supplied4
http://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote24symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote24symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote25symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote26symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote27symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote27symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote28symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote29symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote29symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote30symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote31symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote31symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote24symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote25symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote26symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote27symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote28symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote29symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote30symhttp://sc.judiciary.gov.ph/jurisprudence/2011/november2011/191053.html#sdfootnote31sym


11/17

:n this case, petitioner s failure to report for $or% $as caused by the un$arranted demotion in ran% that $as imposedupon him by respondents, not by any intention to sever employment ties $ith them. *nd his filin# of the instantcomplaint for ille#al dismissal indubitably ne#ates the alle#ation of abandonment. ad petitioner intended to forsa%e his

9ob, then he $ould not have found it necessary to institute this case a#ainst respondents. :n sum, the C* committed reversible error $hen it held that petitioner $as not ille#ally or constructively dismissed. Aithrespect to the investi#ation bein# conducted by the NLRC re#ardin# the alle#ed tamperin# and@or manipulation of the

mailin# of respondents motion for reconsideration filed before it, the Court no lon#er finds it necessary to pass upon thesame.

?@ERE'ORE, the instant petition is GRANTED . 0he assailed


12/17


13/17

respondent arcia $hen he refused to admit the complainant despite his insistence to #o bac% to $or%.

o$ever, $e delete the a$ard of attorney s fees as this is not a case of unla$ful $ithholdin# of $a#es.

A (R(F)R(, premises considered, the appealed decision is modified by deletin# the a$ard of attorney s fees. :n allother respect, the same is affirmed.

) )R


14/17

Labor Code and may be a 9ust cause to terminate one s employment Q22 , every fi#ht $ithin company premises in $hichan employee is involved $ould not $arrant his dismissal. 0his is especially true $hen the employee concerned did notinsti#ate the fi#ht and $as in fact the victim $ho $as constrained to defend himself. :n the present case, it appears thatL*C )N $as assaulted by 5ulius 1iray 31:R*?4, a co/employee, after they $ere 7uestioned about missin# dieselfuel. L*C )N attempted to avoid the conflict since 1:R*? $as into8icated but 1:R*? follo$ed him and after ane8chan#e of $ords, 1:R*? punched him $hile sayin# OPapatayin ita 3: $ill %ill you4. *fter bein# punched a secondtime, L*C )N punched bac%. e thereafter ran to$ards the dressin# plant after his companion, a certain ov. 0eofilo ison Memorial ospital corroborates L*C )N s in9uries. >iven the above circumstances, it is notdifficult to understand $hy L*C )N had to defend himself.

(ven assumin# that there $as 9ust cause to dismiss L*C )N, strict compliance by the employer $ith the demandsof both procedural and substantive due process is a condition sine (ua non for the termination to be declared valid. 0hela$ re7uires that the employer must furnish the $or%er sou#ht to be dismissed $ith t$o $ritten notices beforetermination of employment can be le#ally effected;

!. notice $hich apprises the employee of the particular acts or omissions for $hich his dismissal is sou#htD and

2. the subse7uent notice $hich informs the employee of the employer s decision to dismiss him. Q2G

:t is unclear $hether L=KM*R0 complied $ith the first re7uired $ritten noticeD apparently, L*C )N $as able to#ive his account of the fi#ht. o$ever, even assumin# that L=KM*R0 complied $ith the first $ritten notice i.e. thechar#e a#ainst L*C )N $ith fi#htin# $ithin company premises, the evidence fails to sho$ compliance $ith the secondnotice re7uirementD to inform L*C )N of the decision to dismiss him. uch failure to comply $ith said re7uirementstaints L*C )N s dismissal $ith ille#ality.

*n ille#ally dismissed employee is entitled to !4 either reinstatement or separation pay if reinstatement is no lon#er viable, and 24 bac%$a#es. Q2- :n the present case, L*C )N is entitled to be reinstated, as there is no evidence to sho$that reinstatement is no lon#er possible considerin# L=KM*R0 s position in this appeal is that L*C )N $as never dismissed but merely suspended. e is also entitled to bac%$a#es computed from the time of ille#al dismissal, in thiscase on February G, !""6 Q2 3not February !, !""6 as found by the NLRC4 up to the time of actual reinstatement,$ithout 7ualification or deduction Q2

?@ERE'ORE , the assailed decision of the NLRC is *FF:RM(< and the instant petition is hereby


15/17

8 / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / / 8

D E C I S I O N

SERENO, J.:

Before the Court is a Petition filed under Rule G- of the Rules of Court, assailin# the 2! )ctober 2++"


16/17

as%in#, and that he $as told to loo% for $or% for the time bein#. e thus contends that he did not abandon his 9ob.

Conse7uently, he filed a Complaint for ille#al dismissal and nonpayment of overtime, holiday, !6 th month, and service

incentive leave pays.

Findings of the Labor Arbiter

0he labor arbiter 3L*4 ruled that there $as no basis to hold petitioners liable for ille#al dismissal. :ndeed, he foundthat the confrontation bet$een respondent and


17/17

Revie$ on Certiorari.

Issue

0he sole issue in this case is $hether respondent $as ille#ally dismissed.

iscussion

Ae rule in the affirmative.

*bandonment is a matter of intention and cannot li#htly be presumed from certain e7uivocal acts, especially durin# timesof hardship. Q 0hus, $e have ruled in a series of cases that there are t$o elements that must concur in order for an act toconstitute abandonment; 3!4 failure to report for $or% or absence $ithout valid or 9ustifiable reasonD and 324 a clearintention to sever the employer/employee relationship. Q 0he second element is the more determinative factor, $hichmust be manifested by some overt acts .QH Mere absence or failure to report for $or% does not, ipso facto , amount to

abandonment of $or% .Q" 0o prove abandonment, the employer must sho$ that the employee deliberately andun9ustifiably refused to resume his employment $ithout any intention of returnin#. Q!+

0he NLRC and the C* found that the true reason $hy respondent did not report for $or% for about -+ days $as that hehad been told by petitioners to Olie lo$. 0his is a findin# of fact, $hich $e shall no lon#er disturb. 0hus, $henrespondent realiJed that he $as no lon#er #oin# to receive $or% assi#nments, he $asted no time in filin# a case forille#al dismissal a#ainst petitioners. (mployees $ho ta%e steps to protest their dismissal cannot lo#ically be said to haveabandoned their $or%. Q!! * char#e of abandonment is totally inconsistent $ith the immediate filin# of a complaint forille#al dismissal. Q!2 0he filin# thereof is proof enou#h of one s desire to return to $or%, thus ne#atin# any su##estion of abandonment. Q!6

Respondent must therefore be deemed to have been constructively dismissed. 0here is constructive dismissal $hencontinued employment is rendered impossible, unreasonable, or unli%ely. Q!G :n this case, althou#h *duna a#reed to Olielo$ because of the incident, it became clear that petitioners no lon#er had the intention to #ive him future assi#nments.:n fact, they already deemed the issuance of the Certificate of (mployment as a si#n of abandonment of $or%. 0hecontinued failure of petitioners to offer him a ne$ assi#nment ma%es the former liable for constructive dismissal.Q!- Clearly, the instruction to temporarily Olie lo$ $as meant to be for a permanent cessation from $or%. Aith theabsence of any proof of dire e8i#ency that $ould 9ustify the failure to #ive further assi#nments, the only lo#icalconclusion is that respondent $as constructively dismissed. Q!

:n an ille#al dismissal case, the onus probandi rests on the employer, $ho has to prove that the dismissal of an employee$as for a valid cause. Q! ince petitioners based their defense on abandonment by respondent, it is li%e$ise incumbentupon them, as employers, to prove that he clearly, voluntarily, and intentionally abandoned his $or%. Q!H*s previouslydiscussed, it is clear from the evidence on record that petitioners failed to dischar#e this burden. Q!" *s $e haveconsistently affirmed, if the evidence presented by the employer and the employee are in e7uipoise, the scales of 9usticemust be tilted in favor of the latter. Q2+ *ccordin#ly, the findin# of ille#al dismissal must be upheld. Q2!

*rticle 2 " of the Labor Code provides that an employee $ho is un9ustly dismissed from $or% shall be entitled toreinstatement $ithout loss of seniority ri#hts and other privile#esD to his full bac% $a#es, inclusive of allo$ancesD and toother applicable benefits or their monetary e7uivalent computed from the time compensation $as $ithheld up to the time

of actual reinstatement. Q22 o$ever, in reco#nition of the strained relations bet$een petitioners and respondent, theformer are instead liable to #ive separation pay as found by the C*.

?@ERE'ORE the Petition is DENIED . 0he 2! )ctober 2++"

researcgh 1

Documents