SECOND
DIVISION
BERNARDO
NAZAL
and C.B. NAZAL TRADING,
Petitioners,
G. R. No. 122368
June 19, 1997
-versus-
NATIONAL
LABOR RELATIONS COMMISSION
and ERNESTO CASTRO,
Respondents.
D
E C I S I O N
REGALADO, J.:
This petition
for certiorari assails the decision[1]
of the National Labor Relations Commission [NLRC] dated July 17, 1995,
which reversed and set aside the appealed decision of the Labor Arbiter
dismissing for lack of merit the complaint for illegal dismissal of
private
respondent.
Respondent
Ernesto Castro was hired by petitioner
as a special service employee and, four years thereafter, as a security
guard, until his services were terminated on May 15, 1985. He
subsequently
filed a complaint for illegal dismissal with prayer for reinstatement
and
back wages against herein petitioners, which case was assigned to and
heard
by Labor Arbiter Emerson C. Tumanon. Herein petitioners contended
therein
that respondent Castro was not dismissed but that he failed to report
for
work for almost eight months, and that abandonment of work is a ground
for dismissal.cralaw:red
On the bases of
the complaint and the position
papers submitted by the parties, Arbiter Tumanon rendered a decision on
December 11, 1986 dismissing the complaint for illegal dismissal on the
ground that respondent Castro was not dismissed from employment but
that
he actually abandoned his place of work, and that such conduct
constitutes
a gross neglect of duty which is a valid cause for dismissal under
Article
283 of the Labor Code.[2]
On appeal, the
NLRC rendered a decision[3]
dated August 31, 1987, remanding the case to the labor arbiter for
further
appropriate proceedings, on its finding that herein petitioners failed
to present concrete evidence that respondent Castro had really intended
to abandon his job or had actually abandoned it. It held that
petitioners'
claim of abandonment was premised merely upon unsupported and bare
allegations.
It pointed out that for abandonment to constitute a valid cause for
termination
of employment, there must be a deliberate and unjustified refusal of
the
employee to resume employment.cralaw:red
Petitioners filed
a motion for reconsideration
from this decision of the NLRC, but the same was denied. Thus, the case
was remanded to the labor arbiter for reception of additional evidence.
On March 7, 1989, Labor Arbiter Tumanon rendered his second decision[4]
reiterating the dismissal of the complaint for failure of respondent
Castro
to substantiate his claim of illegal dismissal. From said decision,
private
respondent appealed to the NLRC which, this time, set aside the
decision
of the labor arbiter and ordered herein petitioners to pay private
respondent
back wages in the amount of P41,580.00, separation pay of P9,240.00,
and
attorney's fees equivalent to 10% of the total monetary awards.cralaw:red
Petitioners
submit that respondents NLRC committed
grave abuse of discretion amounting to lack of jurisdiction in
rendering
the questioned decision. They allege that the decision of the labor
arbiter
was based on substantial evidence; that in both his first and second
decisions,
Arbiter Tumanon consistently found that herein private respondent was
not
dismissed from employment but had abandoned his work; that private
respondent
failed to explain why it took him eight months before filing the
complaint
for illegal dismissal; and that the decision of the NLRC has no
legal
and factual basis.cralaw:red
We find no merit
in this petition which, for that
matter, appears to be dilatory.cralaw:red
Right in their
aforesaid initiatory pleading,
herein petitioners admit that no formal termination of private
respondent's
services had been effected by them.[5]
In fact, no evidence was ever adduced to show that respondent Castro
was
accorded due process prior to his dismissal. In her testimony before
the
labor arbiter, petitioners' lone witness, Mrs. Grisela N. Nazal,
admitted
that they did not even write respondent Castro a letter regarding his
work
which she claims had been abandoned by him.[6]
Incredibly, this witness, who is the General Manager of petitioner C.B.
Nazal Trading, further averred that she likewise did not know why
Castro
was no longer working with them, nor the reason for his dismissal.[7]
Such testimony
borders on the absurd considering
that by reason of her general management and stewardship over the
business
and administrative affairs of the company, it was incumbent upon Mrs.
Nazal
to know everything about their employees. If indeed respondent Castro
had
abandoned his work, it is surprising that Mrs. Nazal could not give a
categorical
answer or even hazard a reasonable opinion as to the cause of the
former's
dismissal.cralaw:red
According to
petitioners, respondent Castro failed
to report for work after learning of the investigation being conducted
by them relative to the pilferage or loss of diesel oil stored in the
vessel
being guarded by Castro. Curiously, petitioner would nevertheless want
it to appear that they were not imputing any crime against Castro, and
that it was the latter who simply disappeared. Their stance on this
score
thereby raises a seeming cloud of mystery on a matter easily
susceptible
of verification.cralaw:red
In the Memorandum[8]
filed by herein respondent as complainant before the NLRC, he argued as
follows:
Complainant testified that he was
dismissed by
respondents without any justifiable cause and that when he confronted
Bernardo
Nazal as to the reason [for] the dismissal he was merely told that his
services [were] no longer needed. Thus:
Q. Did you ask him the reason why he
doesn't
want you to work anymore?
A. Well, I ask(ed) him the reason
(for) my
dismissal
and he told me that my services are no longer needed.
Q. When was that?
A. May 15.
Q. You mean (on) May 16, you are not
working with
him?
A. No more, since then up to the
present I
have
not been employed by the respondent. (tsn, August 19, 1988, pp. 10-11)
Corrections in parentheses supplied].[9]
This particular
testimony of respondent Castro was
never refuted by petitioners, either before the NLRC or in their
petition
for certiorari filed with this Court. Hence, it may be safely concluded
that when he filed his complaint on January 27, 1986, respondent Castro
had been prevented from working for more than eight months, because as
of May 15, 1985 his services were already terminated by petitioners.
The alleged efforts exerted by petitioners
in
trying to locate respondent Castro, supposedly by inquiring from his
brother
as to his whereabouts, is not the kind of due process contemplated by
the
law. It would be straining the meaning of the law if such self-serving
acts of going through the motions of locating him were to be accorded
even
the semblance of a valid compliance.
The burden of
proof rests upon the employer to
show that the dismissal of the employee is for a just cause and failure
to do so would necessarily mean that the dismissal is not justified.[10]
We repeat, as was correctly pointed out by the NLRC, that mere
allegations
and conjectures do not constitute conclusive proof of abandonment.cralaw:red
We have
repeatedly stressed that for abandonment
to be a valid cause for dismissal, there must be a concurrence of
intention
to abandon and some overt act from which it may be inferred that the
employee
had no more interest to continue working in his job. An employee who
forthwith
takes steps to protest his layoff cannot by any logic be said to have
abandoned
his work.[11]
We, therefore, agree with the holding of the NLRC that the filing by
herein
private respondent of a complaint for illegal dismissal negates the
imputation
or even the very idea of abandonment.cralaw:red
One procedural
aspect posed by the Solicitor General
calls for clarification. To bolster his position in this case, he
further
submits that the basic petition should have been dismissed outright for
failure of petitioners to file a motion for reconsideration from the
questioned
resolution of the NLRC.[12]
He invites attention to the requirement therefor in the internal rules
of the NLRC, as clarified in Zapata vs. NLRC, et al.[13]
We note, however,
that a motion for reconsideration
had previously been filed by petitioners against the first decision of
the NLRC,[14]
the findings therein were substantially reiterated in its second
decision.
The facts involved as well as the evidence presented and discussed in
the
two decisions, were virtually the same, hence, it would have been a
ceremonious
duplication to require another motion for reconsideration as a
prerequisite
for this second recourse by petitioners against the NLRC.cralaw:red
For purposes of
the present petition, therefore,
not only has there been substantial compliance with the requirement for
a prior motion for reconsideration, but such motion may be dispensed
with
since the questions raised here have been duly passed upon by the lower
tribunal[15]
or are the same as those raised and decided therein.[16]
At all events, it is best that the adverse ruling here against
petitioners
should not go off merely on procedural objections but in recognition of
the lack of substantial merit in their pretensions.cralaw:red
Petitioners would
capitalize on the fact that
private respondent filed his complaint only around eight months after
his
dismissal. The Solicitor General explains the apparent delay through
pragmatic
and realistic considerations readily understandable in view of the
plight
of a workingman. The delay, says the Solicitor General and We agree
with
him, is attributable to several factors. Certain pre-needs have yet to
be met, such as consultations and advice, moral and professional
assistance,
as well as the opportune time. Over and above all this is the need for
raising the necessary wherewithal for litigation expenses which is
undeniably
formidable to one in private respondent's jobless predicament.[17]
Public
respondent, in turn, debunked such argument
of petitioners from the legal standpoint, thus:
Respondents [petitioners herein] may
argue that
complainant [private respondent herein] is guilty of laches since he
filed
the complaint only on January 27, 1986 when he was dismissed on May 15,
1985. We say that complainant is not guilty of laches. He has four [4]
years, not three [3] years, within which to institute the action for
illegal
dismissal [see Callanta vs. Carnation Philippines, Inc. and NLRC, G. R.
No. 70615, October 28, 1986].[18]
WHEREFORE, no
grave abuse of discretion having attended
the foregoing disposition of public respondent, the same is hereby
AFFIRMED
and the instant petition is DISMISSED with treble costs against
petitioners.
SO ORDERED.cralaw:red
Romero, Puno,
Mendoza and Torres, Jr., JJ.,
concur.
________________________________
Endnotes
[1]
NLRC-NCR Case No. 1-313-86 [First Division]; Commissioner Alberto R.
Quimpo,
ponente, and Commissioner Vicente S.E. Veloso, concurring, with
Presiding
Commissioner Bartolome S. Carale on leave.
[2]
Rollo, 35.
[3]
Ibid., 46.
[4]
Ibid., 83.
[5]
Petition, 7; Rollo, 12.
[6]
Rollo, 95.
[7]
Ibid., 94-95.
[8]
Annex J, Petition; Rollo, 55.
[9]
Rollo, 57-58.
[10]
Philippine Manpower Services, Inc., et al., vs. National Labor
Relations
Commission, et al., G. R. No. 98450, July 21, 1993, 224 SCRA 691.
[11]
Bontia, et al., vs. National Labor Relations Commission, et al., G. R.
No. 114988, March 18, 1996, 25 SCRA 167.
[12]
Rollo, 146-147.
[13]
G. R. No. 77827, July 5, 1989, 175 SCRA 56
[14]
Rollo, 8; 49-53.
[15]
Fortich-Celdran, et al., vs. Celdran, et al., L-22677, February 28,
1967,
19 SCRA 502.
[16]
Pajo, etc., et al., vs. Ago, et. al., 108 Phil. 905 [1960]; Legaspi Oil
Co. vs. Geronimo, L-28101, March 31, 1977, 76 SCRA 174.
[17]
Rollo, 16-17.
[18]
Annex G, Petition; Rollo, 47. |