THIRD DIVISION
July 24, 2017
G.R. No. 230664
EDWARD M. COSUE, Petitioner
vs.
FERRITZINTEGRATED DEVELOPMENT CORPORATION, MELISSA TANYA
F. GERMINO AND ANTONIO A. FERNANDO, Respondents
DECISION
TIJAM, J.:
This is a Petition for Review under Rule 45 of the Rules of Court, assailing the
Court of Appeals' (CA's) Decision1dated December 2, 2016 and Resolution2 dated
February 23, 2017, in CA-G.R. SP No. 142491, which affirmed the Resolutions of
the National Labor Relations Commission (NLRC)3 upholding the Labor Arbiter's
finding4 that petitioner Edward M. Cosue was not illegally dismissed.
The Facts
Petitioner started working for respondent Ferritz Integrated Development
Corporation (FIDC) on August 23, 1993 as a construction worker. He
subsequently became a regular employee of FIDC, performing work as
janitor/maintenance staff.
Around 5 p.m. of July 10, 2014, respondent Melissa Tanya Germino (Germino),
as Head of FIDC's Property Management Division, asked petitioner to stay in the
FIDC's building to watch over the generator due to the frequent power outage,
and to assist the guards on duty since they were newly hired. Petitioner agreed.
According to petitioner, around 9 p.m. on July 10, 2014, he saw two security
guards (the Officer-in-Charge and one Gomez), together with an unidentified
man, on their way to the electrical room. They had a knapsack which did not look
heavy. When they left the room, petitioner saw Gomez carrying the knapsack
which, by this time, appeared to contain something heavy. The next morning,
petitioner borrowed the key to the electrical room and together with fellow
maintenance personnel, Joel Alcallaga (Alcallaga), looked for the electrical wires
that were stored therein. Unfortunately, the wires were no longer there. Petitioner
was convinced that the two guards and their unidentified companion took the
wires. At 1 p.m., he was summoned by Germino who verbally informed him that
he was suspended from July 16, 2014 to August 13, 2014 on suspicion that he
stole the electrical wires. Beginning July 16, 2014 until August 13, 2014, he was
no longer allowed to work.5 Thus, on October 9, 2014, he filed a Complaint
against FIDC, Germino and FIDC President Antonio Fernando (collectively,
respondents), for actual illegal dismissal and underpayment of salaries, with
prayer for moral and exemplary damages and attorney's fees.6 In his Position
Paper, petitioner additionally made claims for underpayment of his holiday pay,
13th month pay and service incentive leave pay. He sought to recover on the
alleged underpayments for the period covering "three (3) years backward from
the time of the filing of (his) complaint."7
Refuting petitioner's version of the events, respondents alleged that at 7 p.m. on
July 10, 2014, Alcallaga's bag was found to contain bundled wires when it was
examined by the security personnel, per routine, as he checked out from his shift.
Alcallaga returned the wires to the electrical room shortly after he was
interrogated by the security personnel. The following day, petitioner and
Alcallaga obtained the keys to the electrical room after misrepresenting to the
key custodian that they had been ordered by the head of the FIDC electrical staff
to inspect the room. Thereafter, it was discovered that the electrical wires
returned by Alcallaga to the electrical room were nowhere to be found. Following
an investigation, Germino issued a memorandum of suspension to petitioner for
obtaining the keys to the electrical room and entering without permission, and for
leaving his post and joining Alcallaga in the electrical room. Petitioner was
suspended for twenty-five (25) days from July 16, 2014 to August 13, 2014,
pending further investigation. Petitioner returned to FIDC on August 13, 2014, but
was told to come back as Germino was on leave. When petitioner came back on
August 27, 2014, he was able to speak to Germino and they agreed that he
would voluntarily resign. However, petitioner did not file his resignation, and
eventually instituted his Complaint for illegal dismissal.8
Respondents further averred that years ago, petitioner admitted to acting as
messenger and depositing money in the bank for Rizza Alenzuela, the company
accountant, who was later discovered to have stolen hundreds of thousands of
pesos by collecting from tenants and depositing said collection to her account.
However, because petitioner was the son of their longest-staying employee who
died due to an illness, he was given a second chance on condition that another
offense would lead to the termination of his employment.9
Respondents argued that there was no illegal dismissal as there was an
agreement between FIDC and petitioner that the latter would just resign. As
petitioner reneged on this agreement and chose to be absent, he should be
considered absent without leave. As for petitioner's money claims, FIDC averred
that petitioner was entitled to receive only his latest unpaid salary, if any, and
his pro rata l 3th month pay.10 Respondents, however, would later concede that
there were underpayments which would have to be computed.
The Labor Arbiter's Rulin2
On February 12, 2015, the Labor Arbiter (LA) rendered her Decision, the
dispositive portion of which reads:
WHEREFORE, premises considered, the complaint for illegal dismissal is
dismissed for lack of evidence to support the same. Respondent Ferritz
Integrated Development Corporation, is hereby ordered to reinstate complainant,
Edward M. Cosue, to his former position, without loss of seniority rights but
without backwages.
The order of reinstatement is immediately executory and the respondents are
hereby directed to submit a report of compliance to the said order
without (sic) ten (10) calendar days from receipt of the said decision.
Respondent Ferritz Integrated Development Corporation is further ordered to pay
salary differentials in the amount of P8,819.0l.
All other claims are dismissed for lack of merit.
SO ORDERED.11
The LA held that other than petitioner's general assertion that he was dismissed,
no evidence was presented to support such claim. Petitioner was admittedly
suspended from July 16, 2014 to August 13, 2014. Thus, as of July 27, 2014, the
date of dismissal as averred in petitioner's Complaint, he was still serving his
preventive suspension. In fact, he was not barred from the premises or
categorically informed that he was already dismissed from work.12
The LA stressed that the rule that the employer bears the burden of proof in
illegal dismissal cases could not be applied as respondents denied dismissing
petitioner.13
The LA, however, found no reason to conclude that petitioner abandoned his job,
absent proof of petitioner's clear intention to sever the employer-employee
relationship.
Backwages were not awarded as there was neither dismissal nor abandonment.
However, finding that there was underpayment of salaries, the LA awarded
salary differentials computed at PhP8,8l9.01.
Petitioner's Partial Appeal
In his partial appeal from the LA's Decision, petitioner asked the NLRC to declare
him to have been "illegally (constructively) dismissed" and entitled to full
backwages from the time of illegal dismissal up to actual reinstatement. He also
prayed for the payment of his service incentive leave pay, underpaid 13th month
pay, holiday pay and overtime pay, his 13th month pay for 2014, moral and
exemplary damages, and attorney's fees.
The NLRC's Resolutions
In its Resolution14 dated May 29, 2015, the NLRC denied petitioner's partial
appeal and affirmed the LA's Decision, holding that the established facts showed
that petitioner was not dismissed by FIDC. The NLRC also held that since the
claims for service incentive leave, overtime pay and 13th month pay were not
indicated in the Complaint nor prayed for in petitioner's Position Paper, the LA did
not gravely abuse her discretion in not awarding them. Furthermore, the NLRC
found it improper to award damages and attorney's fees given its finding that
there was no illegal dismissal.
The NLRC denied petitioner's Motion for Reconsideration in its Resolution15 dated
July 20, 2015.
The CA's Ruling
The NLRC's Resolutions were affirmed in the assailed Decision and Resolution
of the CA issued in the certiorariproceeding instituted by petitioner under Rule 65
of the Rules of Court.
The CA found sufficient reasons to uphold respondents' position. It rejected
petitioner's argument that he had been constructively dismissed, holding that
petitioner was merely suspended for 25 days. Such suspension, said the CA,
was a valid exercise of management prerogative pending administrative
investigation on the incident of theft.
Hence, the instant Petition.
Petitioner's Arguments
Petitioner maintained that he was constructively dismissed because he reported
to work immediately after his suspension but was not anymore allowed to work.
He argued that mere absence or failure to report to work is not tantamount to
abandonment of work. He also asserted that to be dismissed for abandonment,
an employee must be shown to have been absent without a valid or justifiable
reason, and to have a clear intention to sever the employer-employee
relationship, and that the burden of proof falls on the employer. Petitioner further
averred that FIDC failed to show proof of payment of his other monetary claims.
The Court's Ruling
Only errors of law are generally reviewed in Rule 45 petitions assailing decisions
of the CA, and questions of fact are not entertained.16 Accordingly, the Court does
not re-examine conflicting evidence or reevaluate the credibility of
witnesses.17 The Court is not a trier of facts, and this doctrine applies with greater
force in labor cases.18 When supported by substantial evidence, factual findings
of labor officials, who are deemed to have acquired expertise in matters within
their respective jurisdiction, are generally accorded not only respect but even
finality, more so when upheld by the CA.19
Petitioner has not shown cause for the Court to depart from this rule.
As the LA, NLRC and the CA found, petitioner was not illegally dismissed. This
common finding is supported by substantial evidence, defined as "that amount of
relevant evidence which a reasonable mind might accept as adequate to justify a
conclusion."20
Petitioner himself alleged that he was suspended from July 16, 2014 to August
13, 2014 pending further investigation of the pilferage of electrical wires. Thus,
on July 27, 2014, the date of dismissal alleged in his Complaint, petitioner was
still serving his suspension; his employment was not terminated.
Petitioner's claim that he was not allowed to report for work after his suspension
was unsubstantiated. Petitioner has not shown by any evidence that he was
barred from the premises. Furthermore, an entry in the FIDC security logbook for
August 27, 2014, which petitioner had not challenged, showed him informing
security personnel that he came to FIDC because he was asked to report to the
office. The rule is that evidence not objected to is deemed admitted and may be
validly considered by the court in arriving at its judgment.21 This is true even if by
its nature, the evidence is inadmissible and would have surely been rejected if it
had been challenged at the proper time.22
Petitioner's claim of constructive dismissal fails. Bare allegations of constructive
dismissal, when uncorroborated by the evidence on record, as in this case,
cannot be given credence.23
In Jo mar S. Verdadero v. Barney A utolines Group of Companies Transport,
Inc., et. al.,24the Court held that:
Constructive dismissal exists where there is cessation of work, because
"continued employment is rendered impossible, unreasonable or unlikely, as an
offer involving a demotion in rank or a diminution in pay" and other benefits. Aptly
called a dismissal in disguise or an act amounting to dismissal but made to
appear as if it were not, constructive dismissal may, likewise, exist if an act of
clear discrimination, insensibility, or disdain by an employer becomes so
unbearable on the part of the employee that it could foreclose any choice by him
except to forego his continued employment.25
In this case, records do not show any demotion in rank or a diminution in pay
made against petitioner. Neither was there any act of clear discrimination,
1âw phi 1
insensibility or disdain committed by respondents against petitioner which would
justify or force him to terminate his employment from the company.26
Respondents' decision to give petitioner a graceful exit is perfectly within their
discretion. It is settled that there is nothing reprehensible or illegal when the
employer grants the employee a chance to resign and save face rather than
smear the latter's employment record.27
The rule is that one who alleges a fact has the burden of proving it; thus,
petitioner was burdened to prove his allegation that respondents dismissed him
from his 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 petitioner.28 In illegal dismissal cases,
while the employer bears the burden to prove that the termination was for a valid
or authorized cause, the employee must first establish by substantial evidence
the fact of dismissal from service.29
In the instant case, other than petitioner's bare allegation of having been
dismissed, there was no evidence presented to show that his employment was
indeed terminated by respondents. In the absence of any showing of an overt or
positive act proving that respondents had dismissed petitioner, the latter's claim
of illegal dismissal cannot be sustained - as the same would be self-serving,
conjectural and of no probative value.30
Petitioner's insistence that he had been unjustifiably dismissed for abandonment
of his job, without the benefit of due process, is untenable. Firstly, petitioner
failed to establish that he had been dismissed. Secondly, it was not respondents'
position that petitioner abandoned his job. As they were waiting for petitioner to
tender his resignation conformably with their agreement, they did not consider
petitioner's absence as an abandonment of his job which would necessitate the
sending of a notice of abandonment or an order to return to work.31
In this regard, the Court's ruling in Nightowl Watchman & Security Agency, Inc. v.
Nestor Lumahan,32reiterated in Dee Jay's Inn and Cafe and/or Melinda Ferraris v.
Ma. Lorina Raneses,33is instructive:
We find that the CA erred in disregarding the NLRC's conclusion that there had
been no dismissal, and in immediately proceeding to tackle Nightowl's defense
that Lumahan abandoned his work.
The CA should have first considered whether there had been a dismissal in the
first place. To our mind, the CA missed this crucial point as it presumed that
Lumahan had actually been dismissed. The CA's failure to properly appreciate
this point - which led to its erroneous conclusion - constitutes reversible error that
justifies the Court's exercise of its factual review power.
xxxx
We agree with the NLRC that Lumahan stopped reporting for work on April 22,
1999, and never returned, as Nightowl sufficiently supported this position with
documentary evidence.
xxxx
In addition, we find that Lumahan failed to substantiate his claim that he was
constructively dismissed when Nightowl allegedly refused to accept him back
when he allegedly reported for work from April 22, 1999 to June 9, 1999. In short,
Lumahan did not present any evidence to prove that he had, in fact, reported
back to work.
xxxx
All told, we cannot agree with the CA in finding that the NLRC committed grave
abuse of discretion in evaluating the facts based on the records and in
concluding therefrom that Lumahan had not been dismissed.
xxxx
As no dismissal was carried out in this case, any consideration of abandonment -
as a defense raised by an employer in dismissal situations - was clearly
misplaced. To our mind, the CA again committed a reversible error in considering
that Nightowl raised abandonment as a defense.
xxxx
The CA, agreeing with LA Demaisip, concluded that Lumahan was illegally
dismissed because Nightowl failed to prove the existence of an overt act showing
Lumahan's intention to sever his employment. To the CA, the fact that Nightowl
failed to send Lumahan notices for him to report back to work all the more
showed no abandonment took place.
The critical point the CA missed, however, was the fact that Nightowl never
raised abandonment as a defense. What Nightowl persistently argued was that
Lumahan stopped reporting for work beginning April 22, 1999; and that it had
been waiting for Lumahan to show up so that it could impose on him the
necessary disciplinary action for abandoning his post at Steelwork, only to learn
that Lumahan had filed an illegal dismissal complaint. Nightowl did not at all
argue that Lumahan had abandoned his work, thereby warranting the termination
of his employment.
Significantly, the CA construed these arguments as abandonment of work under
the labor law construct. We find it clear, however, that Nightowl did not dismiss
Lumahan; hence, it never raised the defense of abandonment.
xxxx
Finally, failure to send notices to Lumahan to report back to work should not be
taken against Nightowl despite the fact that it would have been prudent, given the
circumstance, had it done so. Report to work notices are required, as an aspect
of procedural due process, only in situations involving the dismissal, or the
possibility of dismissal, of the employee. Verily, report-to-work notices could not
be required when dismissal, or the possibility of dismissal, of the employee does
not exist. (Citation ommitted and emphasis ours.)
Since there was neither dismissal nor abandonment, the CA correctly sustained
the LA and the NLRC's decision to order petitioner's reinstatement but without
backwages, consistent with the following pronouncement in Danilo Leonardo v.
National Labor Relations Commission and Reynaldo's Marketing Corporation, et.
al.:34
Accordingly, given that FUERTE may not be deemed to have abandoned his job,
and neither was he constructively dismissed by private respondent, the
Commission did not err in ordering his reinstatement but without backwages. 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.35 (Citation ommitted)
Although not specified in the proforma Complaint, petitioner's claim for
underpayment of holiday pay, 13th month pay and service incentive leave pay
was alleged in his Position Paper.36 In fact, respondents squarely addressed this
issue in their Rejoinder, stating that "(w)hat is left therefore that respondent
should pay are the underpayments which should now be computed
properly."37 Thus, the labor tribunals were not precluded from passing upon this
cause of action.38 Petitioner's cause of action "should be ascertained not from a
reading of his complaint alone but also from a consideration and evaluation of
both his complaint and position paper."39
Petitioner was found to have been paid salaries below the minimum wage rates
and was, thus, awarded salary differentials in the amount of ₱8,819.01 for the
period October 9, 2011 to July 27, 2014.40 Holiday pay, 13th month pay and
service incentive leave pay are all computed based on an employee's salary.
Therefore, there is necessarily an underpayment if these benefits were computed
and paid based on salaries below minimum wage rates.
Anent petitioner's claim for his 13th month pay for 2014, the same was not
alleged in his Complaint or his Position Paper. It appears to have been raised for
the first time in his partial appeal to the NLRC. However, it should be noted that
respondents effectively admitted in their Position Paper that petitioner was
entitled to his pro-rata 13th month pay for 2014.41 To withhold this benefit from
petitioner, despite respondents' admission that he should be paid the same, will
not serve the ends of substantial justice. Hand in hand with the concept of
admission against interest, the concept of estoppel, a legal and equitable
concept, necessarily must come into play.42 Furthermore, it is settled that
technical rules of procedure may be relaxed in labor cases to serve the demands
of substantial justice.43
The LA is, thus, directed to determine any underpayment of holiday pay, 13th
month pay and service incentive leave pay for the period covered by the award of
salary differentials, and to compute the corresponding differentials. The LA is
further directed to compute petitioner's pro rata 13th month pay for 2014.
In San Miguel Corporation v. Eduardo L. Teodosio44, the Court held that:
xxxx
Moral damages are recoverable where the dismissal of the employee was
attended by bad faith or fraud or constituted an act oppressive to labor, or was
done in a manner contrary to morals, good customs or public policy. On the other
hand, exemplary damages are proper when the dismissal was e:ff ected in a
wanton, oppressive or malevolent manner, and public policy requires that these
acts must be suppressed and discouraged.45
In the present case, petitioner failed to sufficiently establish that he had been
dismissed, let alone in bad faith or in an oppressive or malevolent manner.
Petitioner, thus, cannot rightfully claim moral and exemplary damages.46
Petitioner, however, is entitled to attorney's fees at ten percent (10%) of the total
monetary award.47 It has been determined that petitioner was underpaid his
wages. Attorney's fees may be recovered by an employee whose wages have
been unlawfully withheld.48 There need not even be any showing that the
employer acted maliciously or in bad faith; there need only be a showing that
lawful wages were not paid accordingly, as in this case.49
WHEREFORE, the Court of Appeals' Decision dated December 2, 2016 and
Resolution dated February 23, 2017, in CA-G.R. SP No. 142491, are AFFIRMED
with MODIFICATION in that petitioner is additionally entitled to: (a) differentials
in any underpaid holiday pay, 13th month pay and service incentive leave pay for
the period October 9, 2011 to July 27, 2014; (b) pro rata 13th month pay for
2014; and (c) attorney's fees at ten percent (10%) of the total monetary award.
The case is remanded to the Labor Arbiter for the determination of any
underpayment of holiday pay, 13th month pay and service incentive leave pay for
the period October 9, 2011 to July 27, 2014, and for the proper computation of
the corresponding differentials. The Labor Arbiter is also directed to compute
petitioner's pro rata 13th month pay for 2014. The Labor Arbiter shall report
compliance with these directives within thirty (30) days from notice of this
Decision.
SO ORDERED.
