THIRD
DIVISION
JARDINE
DAVIES, INC.,
Petitioner,
G. R. No. 106915
August 31, 1993
-versus-
NATIONAL
LABOR RELATIONS COMMISSION,
FOURTH DIVISION, CEBU CITY
and SALVADOR SALUTIN,
Respondents.
D
E C I S I O N
VITUG, J.:
The instant
Petition for
Certiorari seeks
the
reversal of the resolution of respondent National Labor Relations
Commission,
dated 22 July 1992, which declared private respondent Salvador Salutin
as not having abandoned his work by his alleged failure to report for
work
during the pendency of the petitioner's appeal before the respondent
Commission.
Respondent
Salvador Salutin ["Salutin"]
was employed by petitioner Jardine Davies, Inc. ["JDI"] on 15
July
1985, as a demonstrator/agronomist to provide services relating to, and
to give advice on, the promotion and use of JDI's pesticides and other
products.cralaw:red
The controversy
that spawned two [2] special civil
actions for certiorari [this instance included] with this Court, began
when respondent Salutin filed a complaint against petitioner JDI for
illegal
dismissal, with prayer for reinstatement and backwages or, in the
alternative,
separation pay plus wage differential, service incentive leave pay,
thirteenth
[13th] month pay, holiday pay, moral and exemplary damages, and
attorney's
fees. The complaint was decided by the Labor Arbiter in favor of
respondent
Salutin in a decision, dated 08 August 1991, the decretal portion of
which
reads:
WHEREFORE, PREMISES CONSIDERED,
respondent
Jardine
Davies, Inc./Jardine Agchem is hereby ordered to reinstate complaint to
his former position, without loss of seniority and other rights, and
with
backwages, in amount of Fifty Six Thousand Seven Hundred Pesos
[P56,700.00],
without deduction and qualification.
Respondent is further ordered to pay
complaint
the following:
(a) 13th month pay - P 8,100.00
(b) Holiday pay - P13,115.84
(c) Service Incentive pay - P1,557.60
(d) Moral Damages - P20,000.00
(e) Exemplary Damages - P10,000.00
(f) Attorney's fees which is ten
percent
[10%]
of the total awarded amount.
JDI appealed
the case to the National Labor Relations
Commission [NLRC], and it posted a supersedeas bond to answer for the
monetary
awards. It also reinstated Salutin, "on payroll only", beginning 26
August
1991,[1]
in compliance with the writ of execution issued by the Labor Arbiter
pursuant
to Article 223, paragraph 3, of the Labor Code. In a Decision dated 17
October 1991, NLRC dismissed JDI's appeal for lack of merit but
modified
the decision by eliminating the awards given for holiday pay, service
incentive
leave pay, moral and exemplary damages.[2]
A motion for reconsideration was filed which was denied in NLRC's
resolution
of 13 January 1992.[3]
On 14 February
1992, JDI filed its first petition
for certiorari with this Court, docketed as G. R. No. 103720, assailing
the 17 October 1991 decision and the resolution of 13 January 1992 of
respondent
Commission. In Our Resolution dated 26 February 1992, the petition was
dismissed for failure to comply with this Court's Circular No. 28-91 on
forum-shopping. Its subsequent motion for reconsideration was itself
denied
on 20 May 1992. The Resolution of 26 February 1992 became final and
executory
on 19 June 1992, and an entry of judgment was accordingly made on 20
August
1992.cralaw:red
At the time when
the above narrated events were
still unfolding, some material facts occured beginning with JDI's
appeal
to the NLRC on the 08 August 1991 decision of the Labor Arbiter.
Shortly
after the reinstatement of Salutin "on payroll only", JDI sent a letter
dated 21 September 1991, to Salutin directing him to report for work to
their Bacolod Branch Manager. Salutin, as directed, reported on the
24th
of September 1991 at around 9:20 a.m. He did not stay long, however,
since
after fifteen minutes or so, he left and was reported not to have
thereafter
returned for work. JDI forthwith stopped further payment of salary to
Salutin.cralaw:red
On 17 October
1991, JDI filed a "Manisfestation
and Motion" with the respondent Commission stating, inter alia,
that:
Salutin be considered as having abandoned
his
work considering his continuous absence of more than three (3) weeks
since
he was required to report for work and that any award for
reinstatement
to his former position, without loss of seniority and other rights, in
the Arbiter's decision subject of this appeal be considered and held as
waived or lost.[4]
Salutin opposed
the motion, claiming that he was
forced to leave in haste because he was then suffering from a serious
ailment.
He submitted a medical certificate to support his claim.[5]
On 13 January
1992, respondent Commission denied
JDI's "Manifestation & Motion" stating, among other things, that:
As to the issue of whether the
complaint-appellee
Salvador Salutin is guilty of work abandonment, this is a new and
factual
matter which has to be determined and resolved in appropriate
proceedings
before the Arbitration Branch, more especially in the present case,
where
the charge of abandonment is seriously controverted.
Prescinding
from its receipt of an information that
Salutin was employed elsewhere, JDI filed an ex parte motion
dated
16 June 1992, to set for hearing the aforestated "Manifestation and
Motion."[6]
Salutin, on his part, also filed a motion praying that JDI be ordered
to
release his withheld salary,[7]
claiming that he had reported for work when he recovered from his
ailment
on 11 December 1991.[8]
On 22 July 1992, respondent Commission
issued
its assailed resolution stating, viz:
WHEREFORE, Premises considered, the
respondent's
prayer to declare or consider the complainant to have abandoned his job
for his alleged failure to report back to work during the pendency of
the
appeal in this case is hereby denied for lack of merit.
The complainant's motion for release of
his
salary
since 24 September 1991, until he formally seeks for the enforcement of
the decision is likewise denied.
When the motion
for reconsideration was likewise
denied, JDI instituted on 18 September 1992 the present petition for
certiorari.[10]
During the
pendency of this petition, JDI filed
an "urgent motion for the issuance of writ of preliminary injunction
and/or
restraining order" to prevent the respondent Commission from enforcing
its resolution of 22 July 1992 and 25 August 1992 insofar as it ordered
the reinstatement of Salutin. In its resolution dated 3 March 1993,
this
Court resolved to issue a temporary restraining order.cralaw:red
Petitioner raises
this sole assignment of error,
to wit:
THE RESPONDENT COMMISSION ACTED
WITH
GRAVE
ABUSE OF DISCRETION IN DENYING PETITIONER'S CONTENTION/SUBMISSION THAT
PRIVATE RESPONDENT SALUTIN, SHOULD BE CONSIDERED AS HAVING ABANDONED
HIS
WORK WHEN HE FAILED TO REPORT FOR WORK PENDING THE
PETITIONER-EMPLOYER'S
APPEAL FROM THE ARBITER'S DECISION GRANTING REINSTATEMENT, ALTHOUGH AT
THAT TIME HE WAS ON REINSTATEMENT ON PAYROLL. THIS
NOTWITHSTANDING,
PETITIONER'S SHOWING THAT SUCH FAILURE TO REPORT WAS BECAUSE
RESPONDENT-EMPLOYEE
WAS THEN WORKING ALSO WITH ANOTHER COMPANY, HENCE HE WAS RECEIVING
SALARIES FROM BOTH.
In the subsequent
pages of its petition, JDI paraphrased
the assigned issue in this wise: Is Salutin, who was then on payroll
reinstatement
since 26 August 1991, not guilty of abandonment when his failure to
report
for work was because he was also working for another entity from 01
September
1991 to 31 December 1991? Correlatively, did respondent Commission not
gravely abuse its discretion when it did not take into consideration
such
other employment?
Our answer is in
the negative.cralaw:red
The records show
that at the time JDI filed its
Manifestation and Motion dated 17 October 1991, the sole basis of its
prayer
for a declaration that Salutin abandoned his work was his alleged
unauthorized
absences from the date he was notified to report for work.[11]
A shift to a new focus took place when, on 30 January 1992, JDI, at its
request, received a letter-certification issued by the
Officer-in-Charge
of King's Enterprises of Iloilo City that Salutin was employed by
Monsato
Philippines, Inc., from 01 September to 31 December 1991, as Aggressive
Crop Technician, for which he was paid P5,146.00 per month.[12]
Thus, this was the reason given by JDI in its ex parte motion
dated
16 June 1992, to set for hearing the Manifestation and Motion of 17
October
1991. NLRC denied the said ex parte motion in the now assailed
resolution
of 22 July 1992.cralaw:red
When JDI filed
its first petition for certiorari
[in G. R. No. 103720] with this Court on 14 February 1992, assailing
the
17 October 1991 decision of NLRC, it also raised, as an added argument
on the alleged abandonment of work by Salutin, the fact that he was
gainfully
employed elsewhere.[13]
Considering that this matter was thus already taken up by the
petitioner
in its first petition for certiorari, which this Court dismissed with
finality,
the petitioner should really now be barred from invoking anew that
issue
in this present [second] petition.cralaw:red
Be that as it
may, the same fate of dismissal
is still inevitable. Although this Court is not a trier of facts, it
may
still wade through the records of a case if only to prevent any
possible
misgiving in its ultimate disposition.[14]
The petitioner's evidence to establish Salutin's supposed abandonment
of
work is the certification of employment issued by King's Enterprises at
the request of herein petitioner to the effect that Salutin had indeed
been employed by Monsato Philippines, Inc., during the period from 01
September
to 31 December 1991. Is this enough? What we have heretofore said is
this:
For abandonment to constitute a valid
cause for
termination of employment, there must be a deliberate unjustified
refusal
of the employee to resume his employment. This refusal must be clearly
shown. Mere absence is not sufficient; it must be accompanied by overt
acts pointing to the fact that the employee simply does not want to
work
anymore.[15]
Abandonment of
position is a matter of intention
expressed in clearly certain and unequivocal acts. In this instance,
however,
certain uncontroverted facts show just exactly the opposite. Hence,
Salutin
did report, as directed, on 24 September 1991, but that he could not
stay
long because he was ailing at that time; he, although perhaps belatedly
made, did seek medical consultation on 7 November 1991, at the Corazon
Locsin Montelibano Memorial Regional Hospital, for "peptic ulcer"; and
on 11 December 1991, he did, in fact, manifest his desire to assume his
work with the petitioner.
This Court's
Resolution of 26 February 1992, denying
the petition in G. R. No. 103720, became final and executory on 19 June
1992. Respondent Salutin's interim employment, stressed by the
petitioner,
did not stain the picture at all. Here, We second the well-considered
view
of NLRC, thus:
The order of immediate reinstatement
pending
appeal, in cases of illegal dismissal is an ancillary relief under R.
A.
6715 granted to a dismissed employee to cushion him and his family
against
the impact of economic dislocation or abrupt loss of earnings. If the
employee
chooses not to report for work pending resolution of the case appeal,
he
foregoes such a temporary relief and is not paid of his salary. The
final
determination of the rights and obligations respectively of the parties
is the ultimate and final resolution of this Commission.
WHEREFORE, the
petition is hereby dismissed. The
questioned resolutions of the National Labor Relations Commission are
affirmed,
and the temporary restraining order issued by this Court is hereby
lifted.
SO ORDERED.cralaw:red
Feliciano, Bidin,
Romero and Melo, JJ.,
concur.cralaw:red
___________________________________
Endnotes
[1]
Rollo, 5, 12, 82.
[2]
Rollo, p. 133.
[3]
Ibid.
[4]
Rollo, p. 29.
[5]
Rollo, 54, 142.
[6]
Annex "G", Rollo, pp. 38-40
[7]
Rollo, 20.
[8]
Rollo, 21, 82-83.
[9]
Rollo, p.24.
[10]
Rollo, pp. 99-101.
[11]
Petition, Annex "D", Rollo, 28-29.
[12]
Annex "F", Rollo, 37; 7.
[13]
Rollo, 7-8.
[14]
Valdez v. CA, G. R. No. 85082, 194 SCRA 360 [1991]
[15]
Flexo Manufacturing Corp. v. NLRC, G.R. No. 55971, 135 SCRA 145 [1985];
Dagupan Bus Co., Inc. v. NLRC, G.R. No. 94291, 191 SCRA 328 [1990].
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