Republic of the Philippines
SUPREME COURT
Manila

THIRD DIVISION

G.R. No. 159808           September 30, 2008

LEOPARD INTEGRATED SERVICES, INC. and/or JOSE POE, Petitioners,
vs.
VIRGILIO MACALINAO, Respondent.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Herein petition for review on certiorari under Rule 45 of the Rules of Court originated from an illegal dismissal case filed by Virgilio Macalinao (respondent) against Leopard Integrated Services, Inc. and/or Jose Poe (petitioners). Respondent, who was a security guard in petitioners' agency, alleged that he was placed on "floating status" after he was relieved from his previous posting on September 8, 1998, until he filed the case on June 28, 1999. Petitioners belie respondent's allegation and assert that it was respondent who went on absence without leave (AWOL) by failing to report for work when ordered to do so.

In a Decision dated February 29, 2000 by the Labor Arbiter (LA), respondent's complaint for illegal dismissal, underpayment of salaries/wages, service incentive leave pay, refund of deductions, uniform allowance and attorney's fees, was dismissed for lack of merit.

On appeal to the National Labor Relations Commission (NLRC), the LA's Decision was reversed. The dispositive portion of the NLRC Resolution dated December 20, 2000 provides:

WHEREFORE, the assailed decision of 29 February 2000 is REVERSED. Respondent LEOPARD INTEGRATED SERVICES and JOSE B. POE are hereby ordered to immediately reinstate complainant to his former position as security guard without loss of seniority rights and other benefits and privileges accruing to him with full backwages from the time of his dismissal up to the date of his actual reinstatement. Furthermore, respondents, jointly and solidarily, are ordered to pay the other money claims, otherwise computed as follows:

1. BACKWAGES P 129,152.40

2. REFUND OF CASH BOND P 2,250.00

3. UNDERPAYMENT OF WAGES P 2,730.00

4. SERVICE INCENTIVE LEAVE PAY P 3,352.50

5. 13th MONTH PAY P 10,762.70

TOTAL MONEY AWARD P 148,247.60

All other money claims are dismissed for lack of merit.

SO ORDERED.1

Petitioners filed a motion for reconsideration but this was denied by the NLRC per Resolution dated February 1, 2002.2

Petitioners brought the case up to the Court of Appeals (CA), and in a Decision dated May 20, 2003, the NLRC Resolutions dated December 20, 2000 and February 1, 2002, were affirmed.3 Petitionersí motion for reconsideration was denied per Resolution dated August 8, 2003.4

Petitioners thus filed the present petition on the following grounds:

A

THE COURT OF APPEALS' MISPLACED APPLICATION OF THE DOCTRINES LAID DOWN IN LABOR V. NLRC, 248 SCRA 183, 14 SEPTEMBER 1995, AND HAGONOY RURAL BANK, INC. VS. NLRC, 285 SCRA 297, 28 JANUARY 1998, IN THE CASE AT BAR RAISES A SERIOUS QUESTION OF LAW THAT SHOULD BE CLARIFIED INASMUCH AS PETITIONER COMPANY WAS ABLE TO SUBSTANTIATE THE DELIBERATE AND UNJUSTIFIED REFUSAL OF PRIVATE RESPONDENT MACALINAO TO RESUME HIS EMPLOYMENT.

B

PRIVATE RESPONDENT MACALINAO WAS NOT PLACED ON FLOATING STATUS AND FOR THIS REASON, THE COURT OF APPEALS' QUESTIONABLE APPLICATION OF THE LAW OF THE CASE IN VALDEZ VS. NLRC, 286 SCRA 87, 09 FEBRUARY 1998, AND AGRO COMMERCIAL SECURITY SERVICES, INC. VS. NLRC, 175 SCRA 790, 31 JULY 1989, MERITS A JUDICIAL REVIEW THEREOF.

C

IT IS CONTRARY TO LAW AND JURISPRUDENCE TO CONSIDER THE REINSTATEMENT OF PRIVATE RESPONDENT MACALINAO AND TO PAY HIM BACKWAGES AND ATTORNEY'S FEES..5

Petitioners argue that respondent was not dismissed; rather, it was respondent who voluntarily severed his employment by abandoning his work. Petitioners contend that respondent went on AWOL after he refused to report to the company's headquarters as required of him per letter-memorandum dated October 10, 1998.

On the other hand, respondent claims that he did not receive the letter-memorandum dated October 10, 1998, and that petitioners placed him on a "floating" status.

While the well-established rule is that the jurisdiction of the Court in cases brought before it via Rule 45 is limited to reviewing errors of law,6 the admitted exception is where the findings of the NLRC contradict those of the labor arbiter, then the Court, in the exercise of its equity jurisdiction, may look into the records of the case and reexamine the questioned findings.7

In this case, the LA's findings are not in accord with those of the NLRC and the CA. The LA sustained petitioners' contention that respondent was not dismissed but merely relieved from his post, while the NLRC and the CA accepted respondent's claim that he was placed on floating status.

The rule in labor cases is that the employer has the burden of proving that the employee was not dismissed or if dismissed, that the dismissal was not illegal, and failure to discharge the same would mean that the dismissal is not justified and therefore illegal.8 In the present case, petitioners were able to show that respondent was neither dismissed nor placed on a "floating status."

The evidence for petitioners established that respondent was required to report for work after he was relieved from his post on September 7, 1998 at Westmont Pharma Bonaventure. Thus, in Assignment Order No. 2485 dated September 7, 1998, respondent was assigned to headquarters effective September 8, 1998, after he was relieved from his post at the Westmont Bonaventure as requested by the client. It should be noted at this juncture that most contracts for security services stipulate that the client may request the replacement of the guards assigned to it, and a relief and transfer order in itself does not sever employment relationship between a security guard and his agency.9 Also, an employer has the right to transfer or assign its employees from one area of operation to another, or from one office to another, or in pursuit of its legitimate business interest, provided there is no demotion in rank or diminution of salary, benefits and other privileges; and the transfer is not motivated by discrimination or made in bad faith, or effected as a form of punishment or demotion without sufficient cause.10 On this score, respondent failed to show that his relief was done in bad faith or with grave abuse of discretion.

Also, in a letter-memorandum dated October 10, 1998, respondent was "advised to report to the HRD Manager not later than October 20, 1998."11 Respondent denies having received said letter. According to respondent, at the time the letter was sent to him, he had already transferred residence.12 Respondent's assertion, in fact, serves to boost petitioners' claim. If he was indeed reporting for work, then there was no need to post by registered mail the letter-memorandum to his last known address as petitioners could have easily conveyed to him in person the order to report for work. Moreover, it would have been expedient for respondent to have furnished petitioners with his new address if he was actually reporting to headquarters.

The NLRC did not give credence to petitioners' allegation that the letter-memorandum was sent on October 14, 1998. The NLRC stated:

The twist in this case lies in the purported letter sent to complainant Macalinao by respondent's HRD Manager, Cristina Villacrusis allegedly on October 10, 1998 advising the former to report to the HRD Manager not later than October 20, 1998. Otherwise, failure to report will be construed as abandonment of work.

x x x x

However, after a careful scrutiny of the questioned memorandum purportedly dated October 10, 1998, we take cognizance of the fact that the letter has been received by the Mandaluyong Post Office under registry receipt no. 014668 only on October 14, 1999 or one (1) year, three (3) months and sixteen (16) days from the date of the filing of this instant case.13 (Underscoring supplied) and concluded that:

Thus, this belated attempt on the part of respondent to create an afterthought defense cannot be constued (sic) as substantial compliance with the mandatory requirement of notice for complainant's abandonment. This fact, standing alone, cannot be given due course and credence so as to satisfy the judicious consideration of this Commission.14

Per Certification dated March 8, 2001, the Postmaster of the Mandaluyong Central Post Office attested that said letter-memorandum was mailed on October 14, 1998.15 This sufficiently negates the NLRC's finding, specially in the light of the rule that a certification from the postmaster would be the best evidence to prove that the notice has been validly sent.16 The NLRC apparently misread the date indicated on the registry return receipt when it found that the letter-memorandum was mailed only on October 14, 1999. Evidently, such erroneous conclusion of the NLRC cannot be upheld by the Court.17

It is also noteworthy that respondent failed to rebut petitioners' evidence establishing that he was not dismissed. The rule is that one who alleges a fact has the burden of proving it. Aside from allegations, it also rests upon respondent to show that petitioners dismissed him from employment. It must be stressed that the evidence to prove this fact must be clear, positive and convincing.18 The records are bereft of any indication that respondent was given any "walking papers" or even the slightest manifestation from petitioners that he was being terminated or prevented from returning to work. There is no illegal dismissal to speak of where the employee was not notified that he had been dismissed from his employment nor was he prevented from returning to his work.19

It may be true that on September 12, 1998, respondent replied to the letter-memorandum dated September 8, 1998 issued by petitioners requiring him to explain regarding Westmont's complaint against him; however, that was the last to be heard of from respondent. Respondent never bothered to inform petitioners of the address of his new residence. He may also have appeared at petitioners' office to claim his 13th month pay on January 1999, and to ask for a computation of his backwages on February 1999, but these were intermittent appearances which did not indicate his intent to resume working. As a matter of fact, his letter dated February 27, 1999, asking for backwages from March 1996 up to September 1998 suggests that he admits having stopped working as of September 1998.

Another indication of petitioners' lack of intention in dismissing respondent from employment, and respondent's lack of interest in resuming work, is that during the preliminary conference of the case before the labor tribunal, petitioners offered to allow respondent to report for work but the latter refused.20 This was not denied by respondent. And even during the pendency of the case before the CA, respondent was subsequently admitted into employment by petitioners and was given a posting at the United Overseas Bank, Binondo Branch.21

Given these circumstances, it is clear that there was no dismissal to begin with; instead, it was respondent who, by his own acts, displayed his lack of interest in resuming his employment with petitioners.

The fact that respondent filed a complaint for illegal dismissal, as noted by the CA,22 is not by itself sufficient indicator that respondent had no intention of deserting his employment since the totality of respondent's antecedent acts palpably display the contrary. In Abad v. Roselle Cinema,23 the Court ruled that:

The filing of a complaint for illegal dismissal should be taken into account together with the surrounding circumstances of a certain case. In Arc-Men Food Industries Inc. v. NLRC, the Court ruled that the substantial evidence proffered by the employer that it had not, in the first place, terminated the employee, should not simply be ignored on the pretext that the employee would not have filed the complaint for illegal dismissal if he had not really been dismissed. "This is clearly a non sequitur reasoning that can never validly take the place of the evidence of both the employer and the employee." (Emphasis supplied)

All these, taken into consideration, support the LA's dismissal of respondent's complaint.

Petitioners seek to introduce into evidence subsequent acts committed by respondent, which allegedly buttress their claim. Suffice it to say that dictates of due process prohibit this. In any case, the evidence on hand, even without said subsequent acts, are enough to justify the dismissal of respondent's complaint.

WHEREFORE, the Court of Appeals Decision dated May 20, 2003 and Resolution dated August 8, 2003 are REVERSED and SET ASIDE, and the Labor Arbiter Decision dated February 29, 2000 dismissing the complaint of respondent is REINSTATED.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ
Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

MINITA V. CHICO-NAZARIO
Associate Justice
ANTONIO EDUARDO B. NACHURA
Associate Justice

RUBEN T. REYES
Associate Justice

A T T E S T A T I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courtís Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

C E R T I F I C A T I O N

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairpersonís Attestation, it is hereby certified that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Courtís Division.

REYNATO S. PUNO
Chief Justice


Footnotes

1 Rollo, pp. 78-79.

2 Id. at 82.

3 Id. at 64.

4 Id. at 68.

5 Rollo, p. 31.

6 Go v. Court of Appeals, G.R. No. 158922, May 28, 2004, 430 SCRA 358.

7 Jo v. National Labor Relations Commission, G.R. No. 121605, February 2, 2000, 324 SCRA 437, 445.

8 Abad v. Roselle Cinema, G.R. No. 141371, March 24, 2006, 485 SCRA 262, 268.

9 OSS Security and Allied Services, Inc. v. National Labor Relations Commission, G.R. No. 112752, February 9, 2000, 325 SCRA 157.

10 Lanzaderas v. Amethyst Security and General Services, Inc., G.R. No. 143604, June 20, 2003, 404 SCRA 505, 516.

11 Rollo, p. 99.

12 Id. at 122.

13 Id. at 76-77.

14 Rollo, p. 77.

15 Id. at 131.

16 Columbus Philippines Bus Corporation v. National Labor Relations Commission,G.R. Nos. 114858-59, September 7, 2001, 364 SCRA 606.

17 Orient Express Placement Philippines v. National Labor Relations Commission, G.R. No. 113713, June 11, 1997, 273 SCRA 256.

18 Portuguez v. GSIS Family Family Bank (Comsavings Bank), G.R. No. 169570, March 2, 2007, 517 SCRA 309.

19 Cals Poultry Supply Corporation v. Roco, G.R. No. 150660, July 30, 2002, 385 SCRA 479, 486; Security and Credit Investigation, Inc. v. National Labor Relations Commission, G.R. No. 114316, January 26, 2001, 350 SCRA 357.

20 Rollo, p. 109.

21 Id. at 146.

22 Rollo, p. 61.

23 Abad v. Roselle Cinema, supra note 8, at 272.


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