Construction Corporation: Republic of The Philippines
Construction Corporation: Republic of The Philippines
Construction Corporation: Republic of The Philippines
Supreme Court
Manila
FIRST DIVISION
NACHURA,⃰⃰
x-------------------------------------------------------------------x
DECISION
⃰
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 Certiorari1[1] assails the Decision2[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, 20033[3] and July
31, 20034[4] of the National Labor Relations Commission (NLRC) in NLRC NCR
CASE Nos. 30-11-04656-005[5] and 30-12-04714-00.
Factual Antecedents
On February 1, 1999, Exodus obtained from Dutch Boy Philippines, Inc. (Dutch
Boy) a contract6[6] for the painting of the Imperial Sky Garden located at Ongpin Street,
Binondo, Manila. On July 28, 1999, Dutch Boy awarded another contract7[7] to Exodus
for the painting of Pacific Plaza Towers in Fort Bonifacio, Taguig City.
Miguel B. Bobillo (Miguel) was hired and assigned at Pacific Plaza Towers on
March 10, 2000.
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.
On March 21, 2002, the Labor Arbiter rendered a Decision 10[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 Arbiters Decision
reads:
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1. Guillermo Biscocho
P 1,968.75 - Service Incentive Leave Pay
10,237.50 - 13th Month Pay
3,600.00 - Holiday Pay
P 15,806.25 - Sub-Total
+ 1,580.87 - 10% Attorneys Fees
P 17,386.86 Total
2. Fernando Pereda
P 2,056.25 - Service Incentive Leave Pay
10,692.50 - 13th Month Pay
3,525.00 - Holiday Pay
P 16,273.75 - Sub-Total
+ 1,627.37 - 10% Attorneys Fees
P 17,901.12 Total
3. Miguel Bobillo
P 3,813.34 - 13th Month Pay
1,320.00 - Holiday Pay
P 5,133.34 - Sub-Total
+ 513.33 - 10% Attorneys Fees
P 5,646.67 Total
4. Ferdinand Mariano
P 1,860.42 - Service Incentive Leave Pay
9,674.19 - 13th Month Pay
3,055.00 - Holiday Pay
P 14,589.61 - Sub-Total
+ 1,458.96 - 10% Attorneys Fees
P 16,048.57 Total
5. Gregorio Bellita
P 1,500.00 - Service Incentive Leave Pay
7,800.00 - 13th Month Pay
2,700.00 - Holiday Pay
P 12,000.00 - Sub-Total
+ 1,200.00 - 10% Attorneys 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
attorneys fees, all within ten (10) days from receipt hereof;
The rest of complainants claims for lack of merit are hereby Dismissed.
SO ORDERED.11[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% attorneys 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 attorneys 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:
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SO ORDERED.12[12]
Petitioners filed a Motion for Reconsideration13[13] which was denied by the NLRC in a
Resolution14[14] dated July 31, 2003.
Aggrieved, petitioners filed with the CA a petition for certiorari. The CA through
a Resolution15[15] dated October 22, 2003, directed the respondents to file their
comment. On December 4, 2003, respondents filed their comment.16[16] On January 12,
2004, petitioners filed their reply.17[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
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13
14
15
16
17
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.
SO ORDERED.18[18]
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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, 13 th 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[20]
Petitioners Arguments
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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
[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[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[22]
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.
21
22
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 Pacific Plaza Towers. Since then he never
reported back to work. Lastly, in the case of Guillermo, he absented himself without leave on November
27, 2000, and so he was reprimanded when he reported for work the following day. Because of the
reprimand, he did not report for work anymore.
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.
23
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[24] Abandonment is the deliberate and
unjustified refusal of an employee to resume his employment.25[25]
(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[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.
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25
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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 Commission28[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
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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.
Even though respondents were not represented by counsel in most of the stages of the proceedings of this
case, the award of attorneys 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[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 attorneys fees is legally and
morally justifiable.
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Attorneys 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.
It must be noted that the Labor Arbiters 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% attorneys 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% attorneys 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,
th
13 month pay, and 10% attorneys 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.
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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[31]
In a case where the employees 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.
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