SECOND DIVISION
G.R. No. 169303, February 11, 2015
PROTECTIVE MAXIMUM SECURITY AGENCY, INC., Petitioner, v. CELSO E. FUENTES, Respondent.
D E C I S I O N
LEONEN, J.:
In this Petition for Review on Certiorari,1 Protective Maximum Security Agency, Inc. seeks to set aside the Decision2 of the Court of Appeals which affirmed the Resolutions of the National Labor Relations Commission.3
Protective Maximum Security Agency, Inc. (Protective) provides security services for commercial, industrial and agricultural firms, and personal residences.4
Celso E. Fuentes (Fuentes) was hired as a security guard by Protective sometime in November 1999. At the time of Fuentes' employment, Protective assigned him to Picop Resources, Inc. He was posted to a security checkpoint designated as Post 33 in Upper New Visayas, Agusan del Sur.5
On July 20, 2000, a group of armed persons ransacked Post 33 and took five (5) M-16 rifles, three (3) carbine rifles, and one (1) Browning Automatic Rifle, all with live ammunition and magazines. Agency-issued uniforms and personal items were also taken.6 These armed persons inflicted violence upon Fuentes and the other security guards present at Post 33, namely: Francisco Dalacan, Rolando Gualberto Lindo, Jr. (Lindo, Jr.), Cempron (Cempron), and Wilson Maravilles.7 Francisco Dalacan was employed by Protective, while the others were employed by Meshim Security Agency.8
On the same day of the incident, Fuentes and his fellow security guards reported the raid to the Philippine National Police in Trento, Agusan del Sur. When asked by the police, Fuentes reported that he and the other security guards assigned to Post 33 were accosted at gunpoint by the New People's Army.9
After its initial investigation, the Philippine National Police found reason to believe that Fuentes conspired and acted in consort with the New People's Army.10 This was based on the two (2) affidavits executed by Lindo, Jr. and Cempron, who were both present in the July 20, 2000 raid.11 In their affidavits, Lindo, Jr. and Cempron stated that Fuentes should be prosecuted for criminal acts done on July 20, 2000.12
On July 24, 2000, the Philippine National Police, through Senior Police Officer IV Benjamin Corda, Jr., filed the Complaint for robbery committed by a band against Fuentes, a certain Mario Cabatlao, and others.13 This was filed before the Second Municipal Circuit Trial Court of Trento-Sta. Josefa-Veruela in Trento, Agusan del Sur.14 The Complaint stated that Fuentes was a "cohort of the NPA in the raid[.]"15
Immediately upon the filing of the Complaint, Fuentes was detained at the Mangagoy Police Sub-Station, Mangagoy, Bislig, Surigao del Sur.16 During his detention, he alleged that he was "mauled and tied up by the security officers of [Protective]."17 To preserve proof of these claims, Fuentes had pictures taken of his injuries while in custody and acquired a medical certificate detailing his injuries.18
In the Order dated August 1, 2000, Judge Particio Balite of the Municipal Circuit Trial Court of Trento-Sta. Josefa-Veruela directed that Fuentes be transferred from the Mangagoy Police Sub-Station to Trento Municipal Jail in Trento, Agusan del Sur.19 In his return to this court order, however, Police Inspector Ernesto Escartin Sr. (Inspector Escartin) reported:
. . . Celso Fuentes is no longer in the custody of this station and he is never detained [sic] in this station but requested that he will be put to custody for fear of his life. . . . [H]e left this station on July 28, 2000 at around 2:45 in the afternoon accompanied by his mother. The last known address of subject person is Sta. Josefa, Trento, Agusan del Sur.20 (Citation omitted)On August 15, 2001, the Office of the Provincial Prosecutor of Surigao del Sur issued the Resolution dismissing the Complaint against Fuentes.21 It found during preliminary investigation that there was no probable cause to warrant the filing of an Information against Fuentes.22
As borne out by the record, complainant was not dismissed from the service much less illegally by the respondents PMSAI and/or Ernie S. Dolina. What happened was that complainant was charged by the PNP Trento, Agusan del, Sur in the 2nd Municipal Circuit Trial Court of TRENTO-STA. JOSEFA-VERUELA, Trento, Agusan del Sur for conspiring and confederating with the purported members of the New People's Army in robbing PMSAI (Post 33) . . . mainly based on the statements of security guards Gualberto Lindo, Jr. and Rolando Cempron of Mishem Security Agency who were also assigned at Post 33. Because of this incident, complainant was detained at the Mangagoy Police Sub-Station, Mangagoy, Bislig, Surigao [d]el Sur and later at the Trento Municipal Jail, Trento, Agusan del Sur.On appeal, the National Labor Relations Commission reversed the Decision of Labor Arbiter Legaspi and found that Fuentes was illegally dismissed:
As correctly pointed out by respondents PRI and/or Wilfredo Fuentes, complainant was unable to perform his duties and responsibilities as security guard due to the criminal charges filed against him, hence he was replaced with another guard.
Complainant's claim that respondents refused to admit him back to work after it was found out that he was innocent of the charges against him is not supported by relevant and/or material evidence. Moreover, complainant even failed to state with sufficient defmiteness and/or clarity the time and date when he allegedly reported for work after the dismissal of his case on 15 August 2001. In fact, respondents PMSAI and/or Ernie S. Dolina aver that complainant has not reported to any of his superiors since 20 July 2000 up to the present (17 July 2002). Neither was [sic] his whereabouts known to PMSAI as he cannot be found despite diligent efforts. Hence, notice for him to explain his involvement in the incident of 20 July 2000 at Post 33 could not be properly served. The only manifestation of complainant's existence, respondents admit, came only when respondents were notified of a labor complaint filed by the complainant before this Branch sometime in April 2002.26
WHEREFORE, the foregoing premises considered, the decision appealed from is hereby MODIFIED, and a NEW judgment is rendered, thus:Protective filed a Petition for Certiorari before the Court of Appeals alleging grave abuse of discretion on the part of the National Labor Relations Commission.281. declaring the dismissal of complaint [sic] as illegal;SO ORDERED.27 (Citation omitted)
2. ordering respondent Protective Maximum Security Agency to pay complainant full backwages (August 15, 2001 to May 30, 2003) amounting to P204,250.00 (P9,500 x 21.5 mos.) and to reinstate him immediately upon receipt of this decision. However, should reinstatement is no longer feasible [sic], to pay complainant in lieu thereof separation pay equivalent to one (1) month pay for every year of service; and,
3. ordering same respondent and Picop Resources Inc. to pay complainant in solidum his unpaid salary amounting to P4,750.00, without prejudice however on the part of PRI to present proof of payment/remittance to respondent security agency.
The determination of the respondent NLRC was without basis in law and in fact. Respondent NLRC simply brushed off the established fact that private respondent vanished after the July 20, 2000 incident. . . .The Court of Appeals dismissed the Petition.31 It held that Protective failed to discharge its burden to prove a just cause for dismissal:
[F]rom July 20, 2000 until the present time, private respondent never contacted his superior or reported to the head office of petitioner PMSAI, much less attempted to do the same, to officially manifest whether he was still interested in being employed as security guard. Furthermore, it was incumbent upon private respondent to explain why he was implicated in the crime of robbery by fellow security guards. . . .
Hence, it was physically and legally impossible for petitioner to terminate, constructive, illegal or otherwise [sic], the services of private respondent since the procedure for such an action have [sic] have not been initiated. Private respondent had chose [sic] not to exercise his rights as an employee and remain unreachable for reasons known only to him.30 (Citation omitted)
Petitioner [Protective] bases its contention that private respondent [Fuentes] abandoned his job entirely upon its claim that the latter vanished from sight after the July 20, 2000 incident and until he filed the present action.Further, the Court of Appeals found that Fuentes should have been afforded his procedural due process rights:
We are not persuaded.
First, the records do not support such a claim. As respondent NLRC found:[The] [r]ecord shows that after the incident on July 20, 2000, complainant was among those who reported the assault made by the group of NPA at their post in Trento Police Municipal Office, at Trento, Agusan del Sur (Annex "C", complainant's Position Paper). It was only on July 24, 2000 that a criminal complaint was filed in court leading to his arrest and detention. In fact the witnesses at the prosecution [sic] are two (2) of the security guards also assigned at Post 33 of respondent PRI, albeit from different [sic] security agency (Annex 1, 2 and 3, Respondent PMSAFs Position Paper). It is thus unbelievable that complainant's whereabouts were unknown. (NLRC's August 27, 2003 Resolution, pp. 6-7; Rollo, pp. 35-36)We note, additionally, from petitioner's own submissions, that private respondent's last known address was given to the investigating court by Police Inspector Escartin in his report to that court. That report, incidentally, also reveals the state of mind of private respondent and explains why he could not report to the offices of petitioner. Private respondent, after having been charged with a crime on the strength of affidavits of petitioner's other security guards and beaten up by them, was so traumatized that he actually asked to remain in the custody of the police because he feared for his life. The intensity of his fear is manifest by the fact that he left the custody of the police only when his mother accompanied him. His fear, incongruous as it may appear in a trained security guard, is nonetheless understandable in view of his allegations of having been beaten up. Which allegations, [w]e note, are not controverted.
At any rate, the whereabouts of private respondent were available from official records. The claim of petitioner that private respondent "simply vanished" has no evidentiary support.
But even granting that petitioner was ignorant of private respondent's whereabouts, still it does not suffice to establish abandonment of work. In ACD Investigation Security Agency, Inc. vs. Daquena, G.R. No. 147473, March 30, 2004, the Supreme Court held that:... "for abandonment of work to exist, it is essential (1) that the employee must have failed to report for work or must have been absent without valid or justifiable reason; and (2) that there must have been a clear intention to sever the employer-employee relationship manifested by some overt acts. . . . Absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore. And the burden of proof to show that there was unjustified refusal to go back to work rests on the employer."... It is not enough to simply allege that the private respondent had "mysteriously disappeared" and that "[a]s usual and routine, private respondent should have reported to his Team Leader or Officer-in-Charge."32 (Emphasis and underscoring in the original, citations omitted).
More is required of the employer who must afford private respondent his right to due process. As respondent NLRC states:Thus, the Court of Appeals found that the National Labor Relations Commission committed no grave abuse of discretion amounting to lack or excess of jurisdiction.34 It applied the reasoning of this court in Philippine Airlines, Inc. v. Pascua,35 where this court held that since the Decision of the National Labor Relations Commission is based on substantial evidence, it would not reverse these findings "[a]bsent any showing of patent error, or that the [National Labor Relations Commission] failed to consider a fact of substance that if considered would warrant a different result[.]"36Granting it was so, respondents should have served a written notice to complainant at his last known address to ascertain whether he is still interested to continue his job. Feigning ignorance of the reason why complainant after being hailed in court failed to report for work is ridiculous, at best, a sham defense. What was clear is that respondents did not exert diligent efforts at all to afford complainant his right to due process. No proof has been adduced to support their defense. Moreover, considering that there was a team leader assigned by respondents to Post 33 where complainant was one of its members, the report of the incident should have come from the team leader and not from the complainant as adverted to by respondents. In sum, respondents have all the opportunities to comply with the due process requirement as mandated by law, yet they deliberately ignored and failed to do so. Such deliberate act of respondent PMSAI reflects their deprivation of due process [sic]. The dismissal is thus illegal.33 (Citation omitted)
Article 223. Appeal. Decisions, awards, or orders of the Labor Arbiter are final and executory unless appealed to the Commission by any or both parties within ten (10) calendar days from receipt of such decisions, awards, or orders. Such appeal may be entertained only on any of the following grounds:Article 223 provides that the decision of the Labor Arbiter is final and executory, unless appealed to the National Labor Relations Commission within ten (10) calendar days by any or both of the parties. The Labor Code vests in the National Labor Relations Commission the authority to reverse the decision of the Labor Arbiter, provided that the appellant can prove the existence of one of the grounds in Article 223.1. If there is prima facie evidence of abuse of discretion on the part of the Labor Arbiter;
2. If the decision, order or award was secured through fraud or coercion, including graft and corruption;
3. If made purely on questions of law; and
4. If serious errors in the findings of facts are raised which would cause grave or irreparable damage or injury to the appellant.
[O]n this score we add the further observations that there is a growing number of labor cases being elevated to this Court which, not being a trier of fact, has at times been constrained to remand the case to the NLRC for resolution of unclear or ambiguous factual findings; that the Court of Appeals is procedurally equipped for that purpose, aside from the increased number of its component divisions; and that there is undeniably an imperative need for expeditious action on labor cases as a major aspect of constitutional protection to labor.In Bani Rural Bank, Inc. v. De Guzman,74 this court discussed the primary issues to be addressed in a Rule 45 petition for review on certiorari in labor cases:
Therefore, all references in the amended Section 9 of B.P. No. 129 to supposed appeals from the NLRC to the Supreme Court are interpreted and hereby declared to mean and refer to petitions for certiorari under Rule 65. Consequently, all such petitions should henceforth be initially filed in the Court of Appeals in strict observance of the doctrine on the hierarchy of courts as the appropriate forum for the relief desired.73
In Career Philippines Shipmanagement, Inc. v. Serna,76 this court elaborated on its role to determine whether the Court of Appeals was correct in either granting or dismissing the petition for certiorari:In question form, the question to ask is: Did the CA correctly determine whether the NLRC committed grave abuse of discretion in ruling on the case?This manner of review was reiterated in Holy Child Catholic School v. Hon. Patricia Sto. Tomas, etc., et al., where the Court limited its review under Rule 45 of the CA's decision in a labor case to the determination of whether the CA correctly resolved the presence or absence of grave abuse of discretion in the decision of the Secretary of Labor, and not on the basis of whether the latter's decision on the merits of the case was strictly correct.
Grave abuse of discretion, amounting to lack or excess of jurisdiction, has been defined as the capricious and whimsical exercise of judgment amounting to or equivalent to lack of jurisdiction. There is grave abuse of discretion when the power is exercised in an arbitrary or despotic manner by reason of "passion or personal hostility, and must be so patent and so gross as to amount to an evasion of a positive duty or to a virtual refusal to perform the duty enjoined or to act at all in contemplation of law."75 (Emphasis supplied, citations omitted)
Applying these cases, the general rule is that in a Rule 45 petition for review on certiorari, this court will not review the factual determination of the administrative bodies governing labor, as well as the findings of fact by the Court of Appeals. The Court of Appeals can conduct its own factual determination to ascertain whether the National Labor Relations Commission has committed grave abuse of discretion.78 "In the exercise of its power of review, the findings of fact of the Court of Appeals are conclusive and binding and consequently, it is not our function to analyze or weigh evidence all over again."79In a Rule 45 review, we consider the correctness of the assailed CA decision, in contrast with the review for jurisdictional error that we undertake under Rule 65. Furthermore, Rule 45 limits us to the review of questions of law raised against the assailed CA decision. In ruling for legal correctness, we have to view the CA decision in the same context that the petition for certiorari it ruled upon was presented to it; we have to examine the CA decision from the prism of whether it correctly determined the presence or absence of grave abuse of discretion in the NLRC decision before it, not on the basis of whether the NLRC decision on the merits of the case was correct. In other words, we have to be keenly aware that the CA undertook a Rule 65 review, not a review on appeal, of the NLRC decision challenged before it. (Emphasis in the original)Accordingly, we do not re-examine conflicting evidence, re-evaluate the credibility of witnesses, or substitute the findings of fact of the NLRC, an administrative body that has expertise in its specialized field. Nor do we substitute our "own judgment for that of the tribunal in determining where the weight of evidence lies or what evidence is credible." The factual findings of the NLRC, when affirmed by the CA, are generally conclusive on this Court.77 (Emphasis supplied, citations omitted)
It is a well-settled rule in this jurisdiction that only questions of law may be raised in a petition for certiorari under Rule 45 of the Rules of Court, this Court being bound by the findings of fact made by the Court of Appeals. The rule, however, is not without exception. Thus, findings of fact by the Court of Appeals may be passed upon and reviewed by this Court in the following instances, none of which obtain in the instant petition:In labor cases, if the petitioner before this court can show grave abuse of discretion on the part of trie National Labor Relations Commission, the assailed Court of Appeals ruling (in the Rule 65 proceedings) will be reversed. "Labor officials commit grave abuse of discretion when their A factual findings are arrived at arbitrarily or in disregard of the evidence."82 If the petitioner can show that "the [labor] tribunal acted capriciously and whimsically or in total disregard of evidence material to the controversy,"83 the factual findings of the National Labor Relations Commission may be subjected to review and ultimately rejected.84
(1) When the conclusion is a finding grounded entirely on speculation, surmises or conjectures (Joaquin v. Navarro, 93 Phil. 257 [1953]); (2) When the inference made is manifestly mistaken, absurd or impossible (Luna v. Linatok, 74 Phil. 15 [1942]); (3) Where there is a grave abuse of discretion (Buyco v. People, 95 Phil. 453 [1955]); (4) When the judgment is based on a misapprehension of facts (Cruz v. Sosing, L-4875, Nov. 27, 1953); (5) When the findings of fact are conflicting (Casica v. Villaseca, L-9590 Ap. 30, 1957; unrep.);** (6) When the Court of Appeals, in making its findings, went beyond the issues of the case and the same is contrary to the admissions of both appellant and appellee (Evangelista v. Alto Surety and Insurance Co., 103 Phil. 401 [1958]); (7) The findings of the Court of Appeals are contrary to those of the trial court (Garcia v. Court of Appeals, 33 SCRA 622 [1970]; Sacay v. Sandiganbayan, 142 SCRA 593 [1986]);** (8) When the findings of fact are conclusions without citation of specific evidence on which they are based (Ibid.,); (9) When the facts set forth in the petition as well as in the petitioner's main and reply briefs are not disputed by the respondents (Ibid.,); and (10) The finding of fact of the Court of Appeals is premised on the supposed absence of evidence and is contradicted by the evidence on record (Salazar v. Gutierrez, 33 SCRA 242 [1970]).81
Art. 282. Termination by employer. An employer may terminate an employment for any of the following causes:Abandonment constitutes a just cause for dismissal because "[t]he law in protecting the rights of the laborer, authorizes neither oppression nor self-destruction of the employer."87 The employer cannot be compelled to maintain an employee who is remiss in fulfilling his duties to the employer, particularly the fundamental task of reporting to work.
(b) Gross and habitual neglect by the employee of his duties[.]
Abandonment is the deliberate and unjustified refusal of an employee to resume his employment. It is a form of neglect of duty, hence, a just cause for termination of employment by the employer. For a valid finding of abandonment, these two factors should be present: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever employer-employee relationship, with the second as the more determinative factor which is manifested by overt acts from which it may be deduced that the employees has [sic] no more intention to work. The intent to discontinue the employment must be shown by clear proof that it was deliberate and unjustified.89 (Citations omitted)The burden to prove whether the employee abandoned his or her work rests on the employer.90 Thus, it is incumbent upon petitioner to prove the two (2) elements of abandonment. First, petitioner must provide evidence that respondent failed to report to work for an unjustifiable reason. Second, petitioner must prove respondent's overt acts showing a clear intention to sever his ties with petitioner as his employer.
Respondent Javier's absence from August 9, 1995 cannot be deemed as an abandonment of his work.' Abandonment is a matter of intention and cannot lightly be inferred or legally presumed from certain equivocal acts. To constitute as such, two requisites must concur: first, the employee must have failed to report for work or must have been absent without valid or justifiable reason; and second, there must have been a clear intention on the part of the employee to sever the employer-employee relationship as manifested by some overt acts, with the second element being the more determinative factor. Abandonment as a just ground for dismissal requires clear, willful, deliberate, and unjustified refusal of the employee to resume his employment. Mere absence or failure to report for work, even after notice to return, is not tantamount to abandonment.In deciding that there was no abandonment, this court applied its ruling in Magtoto v. National Labor Relations Commission.105 In Magtoto, Alejandro Jonas Magtoto was arrested by virtue of the Arrest, Search and Seizure Order dated September 1, 1980.106 Magtoto was charged with violating Article 136 (Conspiracy and Proposal to Commit Rebellion) and Article 138 (Inciting to Rebellion or Insurrection) of the Revised Penal Code.107 On April 10, 1981, seven months after his arrest, Magtoto was released after the City Fiscal dismissed the case due to lack of evidence.108 On the same day, Magtoto informed his employer of his intention to resume working, but the employer rejected his request to return to work.109 According to his employer, Magtoto's prolonged absence justified his dismissal from work.110
Moreover, respondent Javier's acquittal for rape makes it more compelling to view the illegality of his dismissal. The trial court dismissed the case for "insufficiency of evidence," and such ruling is tantamount to an acquittal of the crime charged, and proof that respondent Javier's arrest and detention were without factual and legal basis in the first place.104 (Citation omitted)
The employer tries to distance itself from the detention by stressing that the petitioner was dismissed due to prolonged absence. . . . Since the causes for the detention, which in turn gave the employer a ground to dismiss the petitioner, proved to be non-existent, we rule that the termination was illegal and reinstatement is warranted. A non-existent cause for dismissal was explained in Pepito v. Secretary of Labor (96 SCRA 454):In Standard Electric and Magtoto, the employees reported for work after the charges against them were dropped. This court found that the employers' refusal to allow these employees to resume work had no basis.". . . . Petitioner was separated because of his alleged involvement in the pilferage in question. However, he was absolved from any responsibility therefor by the court. The cause for his dismissal having been proved non-existent or false, his reinstatement is warranted. It would be unjust and unreasonable for the Company to dismiss petitioner after the latter had proven himself innocent of the cause for which he was dismissed."111
It is a basic rule in evidence that each party must prove his affirmative allegation. While technical rules are not strictly followed in the NLRC, this does not mean that the rules on proving allegations are entirely dispensed with. Bare allegations are not enough; these must be supported by substantial evidence at the very least.The burden to prove a just cause for dismissal must be met by the employer.
The rule is well established that in termination cases, the burden of proving just and valid cause for dismissing an employee rests on the employer and his failure to do so shall result in a finding that the dismissal is unjustified.115
. . . Article 291 of the Labor Code . . . requires that money claims arising from employer-employee relations [should] be filed within three years from the time the cause of action accrued:Petitioner admits that respondent filed the Complaint for illegal dismissal six (6) months after the first time petitioner had refused to allow respondent to work. This is well within the four-year prescriptive period provided by Article 1146 of the Labor Code, as mentioned in Arriola.Art. 291. MONEY CLAIMS. All money claims arising from employer-employee relations accruing during the effectivity of this Code shall be filed within three (3) years from the time the cause of action accrued; otherwise they shall be forever barred.Article 291 covers claims for overtime pay, holiday pay, service incentive leave pay, bonuses, salary differentials, and illegal deductions by an employer. It also covers money claims arising from seafarer contracts.
The provision, however, does not cover "money claims" consequent to an illegal dismissal such as backwages. It also does not cover claims for damages due to illegal dismissal. These claims are governed by Article 1146 of the Civil Code of the Philippines, which provides:Art. 1146. The following actions must be instituted within four years:This four-year prescriptive period applies to claims for backwages, not the three-year prescriptive period under Article 291 of the Labor Code. A claim for backwages, according to this court, may be a money claim "by reason of its practical effect." Legally, however, an award of backwages "is merely one of the reliefs which an illegally dismissed employee prays the labor arbiter and the NLRC to render in his favor as a consequence of the unlawful act committed by the employer." Though it results "in the enrichment of the individual [illegally dismissed], the award of backwages is not in redress of a private right, but, rather, is in the nature of a command upon the employer to make public reparation for his violation of the Labor Code."(1) Upon injury to the rights of the plaintiff[.]
Actions for damages due to illegal dismissal are likewise actions "upon an injury to the rights of the plaintiff." Article 1146 of the Civil Code of the Philippines, therefore, governs these actions.122 (Citations omitted)
In addition, an action for reinstatement by reason of illegal dismissal is one based on an injury which may be brought within four (4) years from the time of dismissal pursuant to Art. 1146 of the Civil Code. Hence, Capulso's case which was filed after a measly delay of four (4) months should not be treated with skepticism or cynicism. By law and settled jurisprudence, he has four (4) years to file his complaint for illegal dismissal. A delay of merely four (4) months in instituting an illegal dismissal case is more than sufficient compliance with the prescriptive period. It may betray an unlettered man's lack of awareness of his rights as a lowly worker but, certainly, he must not be penalized for his tarrying.125In this case, the six-month period from the date of dismissal to the filing of the Complaint was well within reason and cannot be considered "inexcusable delay." The cases filed before the courts and administrative tribunals originate from human experience. Thus, this court will give due consideration to the established facts which would justify the gap of six (6) months prior to the filing of the complaint.
Being a matter of intention, moreover, abandonment cannot be inferred or presumed from equivocal acts. As a just and valid ground for dismissal, it requires the deliberate, unjustified refusal of the employee to resume his employment, without any intention of returning. . . . The burden of proving abandonment is once again upon the employer who, whether pleading the same as a ground for dismissing an employee or as a mere defense, additionally has the legal duty to observe due process. Settled is the rule that mere absence or failure to report to work is not tantamount to abandonment of work.134 (Emphasis supplied, citations omitted)Unlike Indophil, illegal dismissal occurred in this case. Respondent was illegally dismissed from the time petitioner refused to allow him to resume work.
If there is no work performed by the employee there can be no wage or pay, unless of course the laborer was able, willing and ready to work but was illegally locked out, dismissed or suspended. The "No work, no pay" principle contemplates a "no work" situation where the employees voluntarily absent themselves.139(Emphasis in the original)It would be unjust if petitioner were ordered to pay respondent for the period of time that respondent could not and did not work.
Finally, in line with the rulings of this Court in Magtoto and Pedroso on the matter of backwages, respondent Javier is not entitled to any salary during the period of his detention. His entitlement to full backwages commenced from the time the petitioner refused his reinstatement. In the instant case, when respondent Javier was freed on May 24, 1996 by virtue of the judgment of acquittal dated May 17, 1996, he immediately proceeded to the petitioner but was not accepted back to work; hence, the reckoning point for the grant of backwages started therefrom.140In Standard Electric, the period of computation of backwages commenced from the date petitioner refused to allow respondent to return to work, and not from the date the charges against respondent were dismissed.
Procedurally ... if the dismissal is based on a just cause under Article 282, the employer must give the employee two written notices and a hearing or opportunity to be heard if requested by the employee before terminating the employment: a notice specifying the grounds for which dismissal is sought a hearing or an opportunity to be heard and after hearing or opportunity to be heard, a notice of the decision to dismiss. . . .In this case, petitioner violated respondent's right to procedural due process. The two-notice requirement was not followed. Petitioner sought to excuse itself by claiming that there was no address where the proper notice could have been served. However, petitioner admitted before the Court of Appeals that "respondent's last known address was given to the investigating court by Police Inspector Escartin.]"142
Due process under the Labor Code, like Constitutional due process, has two aspects: substantive, i.e., the valid and authorized causes of employment termination under the Labor Code; and procedural, i.e., the manner of dismissal. Procedural due process requirements for dismissal are found in the Implementing Rules of P.D. 442, as amended, otherwise known as the Labor Code of the Philippines in Book VI, Rule I, Sec. 2, as amended by Department Order Nos. 9 and 10. Breaches of these due process requirements violate the Labor Code. . . .
Constitutional due process protects the individual from the government and assures him of his rights in criminal, civil or administrative proceedings; while statutory due process found in the Labor Code and Implementing Rules protects employees from being unjustly terminated without just cause after notice and hearing.141 (Citation omitted)
Endnotes:
* Designated Acting Member per S.O. No. 1910 dated January 12, 2015.
1Rollo, pp. 30-47.
2 Id. at 8-21. The Decision dated June 24, 2005 was penned by Associate Justice Romulo V. Borja (Chair) and concurred in by Associate Justices Rodrigo F. Lim, Jr. and Normandie B. Pizarro of the Twenty-Third Division. The June 24, 2005 Decision and August 10, 2005 Resolution in CA-G.R. SP No. 81336 affirmed the National Labor Relations Commission Resolutions and denied Protective's Motion for Reconsideration.
3 Id. at 21.
4 Id. at 32.
5 Id. at 9.
6 Id.
7 Id. at 83.
8 Id. at 83-84.
9 Id. at 9-10.
10 Id. at 84.
11 Id. at 10.
12 Id.
13 Id. at 84.
14 Id. at 10 and 84.
15 Id. at 10.
16 Id. The Decision of the Court of Appeals referred to "Mangagoy" as "Manganoy".
17 Id.
18 Id.
19 Id. at 33.
20 Id. at 12.
21 Id. at 10-11.
22 Id.
23 Id. at 12.
24 Id. at 11.
25 Id.
26 Id. at 37-38.
27 Id. at 13.
28 Id. at 8.
29 Id. at 14.
30 Id. at 15.
31 Id. at 21.
32 Id. at 16-18.
33 Id. at 18-19.
34 Id. at 19-20.
35 456 Phil. 425,438 (2003) [Per J. Quisimbing, Second Division].
36Rollo, p. 20.
37 Id. at 87-88.
38 239 Phil. 386 (1987) [Per J. Cortes, Third Division].
39Rollo, p. 39.
40 Id. at. 91.
41 Id. at 38.
42 380 Phil. 31 (2000) [Per J. Quisimbing, Second Division].
43 Id. at 40.
44Rollo, p. 88.
45 Id. at 91-92.
46 Id. at 39.
47 Id. at 90.
48 G.R. No. 96488, September 27, 1993, 226 SCRA 723, 729 [Per J. Nocon, Second Division].
49Rollo, pp. 89-90.
50 Id. at 89.
51 Id. at 89.
52 Id.
53 Id. at 91.
54 Id. at 101-102.
55 Id.
56 Id. at 101.
57 Id. at 102-103.
58Rollo, p. 37.
59 Id.
60 Id. at 38.
61 Id.
62 Id.
63 Id.
64 Id.
65 Id.
66 Id. at 16.
67 Id.
68 Id.
69 Id. at 18.
70 Id.
71 Id.
72 356 Phil. 811 (1998) [Per J. Regalado, En Banc].
73 Id. at 824.
74 G.R. No. 170904, November 13,2013,709 SCRA 330 [Per J. Brion, Second Division].
75 Id. at 346-347.
76 G.R. No. 172086, December 3, 2012, 686 SCRA 676 [Per J. Brion, Second Division].
77 Id. at 684.
78Maralit v. Philippine National Bank, 613 Phil. 270, 289 (2009) [Per J. Carpio, First Division].
79Go v. Court of Appeals, G.R. No. 158922, May 28, 2004, 430 SCRA 358, 364 [Per J. Ynares-Santiago, First Division].
80 G.R. No. 75450, November 8, 1990, 191 SCRA218 [Per J. Bidin, Third Division].
81 Id. at 223-224.
82Maralit v. Philippine National Bank, 613 Phil. 270, 285 (2009) [Per J. Carpio, First Division], citing Triumph International (Phils.), Inc. v. Apostol, 607 Phil. 157, 170 (2009) [Per J. Carpio, First Division], Marival Trading, Inc. v. National Labor Relations Commission, 552 Phil. 762, 774 (2007) [Per J. Chico-Nazario, Third Division], and Escareal v. National Labor Relations Commission, G.R. No. 99359, September 2, 1992, 213 SCRA 472,490 [Per J. Davide, Jr., Third Division].
83Odango v. National Labor Relations Commission, G.R. No. 147420, June 10, 2004, 431 SCRA 633, 640 [Per J. Carpio, First Division], citing Sajonas v. National Labor Relations Commission, 262 Phil. 201, 206 (1990) [Per J. Regalado, Second Division].
84Norkis Trading Corporation v. Buenavista, G.R. No. 182018, October 10, 2012, 683 SCRA 406, 422 [Per J. Reyes, First Division].
85Luna v. Allado Construction Co., Inc., G.R. No. 175251, May 30, 2011, 649 SCRA 262, 272 [Per J. Leonardo-De Castro, First Division], citing Abel v. Philex Mining Corporation, 612 Phil. 203, 213 (2009) [Per J. Carpio Morales, Second Division].
86Alert Security and Investigation Agency, Inc. v. Pasawilan, G.R. No. 182397, September 14, 2011, 657 SCRA 655, 666-667 [Per J. Villarama, Jr., First Division].
87Philippine Long Distance Telephone Company v. Honrado, 652 Phil. 331, 334 (2010) [Per J. Del Castillo, First Division], citing Mercury Drug Corporation v. National Labor Relations Commission, 258 Phil. 384, 391 (1989) [Per C.J. Fernan, Third Division]; Agabon v. National Labor Relations Commission, 485 Phil. 248, 286 (2004) [Per J. Ynares-Santiago, En Banc].
88 485 Phil. 248 (2004) [Per J. Ynares-Santiago, En Banc].
89 Id. at 278.
90Macahilig v. National Labor Relations Commission, 563 Phil. 683, 691 (2007) [Per J. Austria-Martinez, Third Division].
91Rollo, p. 89.
92 Id.
93 Id. p. 89-90.
94Rollo, p. 17.
95 Id.
96 505 Phil. 418 (2005) [Per J. Callejo, Sr., Second Division].
97 Id. at 420.
98 Id.
99 Id.
100 Id.
101 Id.
102 Id.
103 Id.
104 Id. at 427-428.
105 224 Phil. 210 (1985) [Per J. Gutierrez, Jr., First Division].
106 Id. at 214.
107 Id.
108 Id. at 215.
109 Id.
110 Id. at 217.
111 Id.
112Rollo, p. 38.
113 Id.
114 360 Phil. 881 (1998) [Per J. Romero, Third Division].
115 Id. at 888-889.
116 377 Phil. 951 (1999) [Per J. Puno, First Division].
117Rollo, pp. 90-91.
118Philippine Industrial Security Agency Corporation v. Dapiton, 311 Phil. 951, 959 (1999) [Per J. Puno, First Division].
119 Id.
120 Id.
121G.R. No. 175689, August 13, 2014 jurisprudence/2014/august2014/175689.pdf> [Per J. Leonen, Third Division].
122 Id. at 6-9.
123 362 Phil. 370 (1999) [Per J. Bellosillo, Second Division].
124 Id. at 379.
125 Id. at 379-380.
126Rollo, p. 102.
127 Id. at 89-90.
128Indophil Acrylic Mfg. Corporation v. National Labor Relations Commission, G.R. No. 96488, September 27, 1993, 226 SCRA 723, 725 and 727 [Per J. Nocon, Second Division].
129 Id. at 725.
130 Id.
131 Id. at 729.
132 Id.
133 G.R. No. 176377, November 16, 2011, 660 SCRA 279 [Per J. Perez, Second Division].
134 Id. at 286-287.
135 380 Phil. 31 (2000) [Per J. Quisimbing, Second Division].
136Rollo, p. 13.
137 Id. at 21.
138 G.R. No. 178021, January 31, 2012, 664 SCRA 497 [Per J. Mendoza, En Banc].
139 Id. at 505.
140 Standard Electric Manufacturing Corporation v. Standard Electric Employees Union-NAFLU-KMU, 505 Phil. 418, 429-430 (2005) [Per J. Callejo, Sr., Second Division].
141 485 Phil. 248,280-284 (2004) [Per J. Ynares-Santiago, En Banc].
142Rollo, p. 16.
143 485 Phil. 248, 288 (2004) [Per J. Ynares-Santiago, En Banc].
144Nacar v. Gallery Frames, G.R. No. 189871, August 13, 2013, 703 SCRA 439, 458 [Per J. Peralta, En Banc].