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[G.R. NO. 149506.June 18, 2003]

ALPHA INVESTIGATION & SECURITY AGENCY, INC. vs. NLRC

THIRD DIVISION

Gentlemen:

Quoted hereunder, for your information, is a resolution of this Court dated JUN 18 2003.

G.R. NO. 149506 (Alpha Investigation & Security Agency, Inc. vs. National Labor Relations Commission and Jose Guarino.)

Petitioner Alpha Investigation & Security Agency, Inc., (AISA) assails the August 24, 2001 Decision[1]cralaw of the Court of Appeals, affirming the August 17, 1998 Resolution[2]cralaw of the National Labor Relations Commission, (NLRC) which, in turn, affirmed the Labor Arbiter's decision, thus:

WHEREFORE, premises considered, respondent Alpha Investigation Agency, Inc. is hereby ordered to pay complainant Guarino the following:

1.  Backwages for one

(1)            year and seven

(7)            months                            P90,870.32

2.  Separation pay of

one (1) month for

every year of

service                               26,263.10

3.  Thirteenth month

pay for three (3)

years                                                13,614.58

TOTAL                                             P130,748.00[3]cralaw

===========

The record shows that, sometime in January 1991, private respondent was hired as a security guard by petitioner and was assigned at Pier 6, Manila North Harbor.

On September 13, 1994, private respondent was charged with murder for shooting a man to death while on duty and. was detained at the Manila City Jail from September 21, 1994 until February 22, 1996 when he posted a P10,000 bail.

Upon his release, private respondent immediately reported for work but petitioner refused to give him any assignment.

Feeling abandoned by his employer, private respondent filed a complaint for illegal dismissal, underpayment/ non-payment of salaries and other benefits.

Petitioner argued that private respondent abandoned his job when he refused to take his old post.

The labor arbiter decided in favor of private respondent. This was affirmed by the NLRC on appeal.

A petition and a subsequent motion for reconsideration at the Court of Appeals were unsuccessful.

Thus, the instant petition which must also fail.

For abandonment to be sustained as a just and valid cause for dismissal, the employer must show the unjustified refusal of the employee to report for work and his clear and deliberate intent to sever the employer-employee relationship.[4]cralaw

Petitioner alleges that it sent a written order to private respondent directing him to report for work but he refused to take his old post. However, there is no proof that private respondent received the alleged order. Moreover, private respondent immediately reported for work after his release. Thus, the NLRC correctly ruled out abandonment on the ground that mere allegation was not evidence. True, proceedings before the NLRC are not bound by technical rules but this does not mean that the rules on proving allegations are entirely dispensed with.[5]cralaw The Court has ruled that factual findings of the NLRC, particularly when they coincide with those of the labor arbiter, are accorded not only respect but even finality.

The burden of proof to show that the dismissal of an employee is for a just cause rests on the employer.[6]cralaw Petitioner failed to overcome such burden. Thus, the award of full backwages and separation pay is in order.

The principle of "no work, no pay cannot be applied in the case at bar. First, petitioner never questioned in all its pleadings that the alleged shooting by private respondent was in the performance of his duty as a security guard. Second, private respondent's work interruption due to his detention was beyond his control. Petitioner did not assist private respondent during his two-year incarceration when he could have been released sooner had petitioner only helped him with the P10,000 bail.

Justice and equity demand that petitioner be prevented from using private respondent's unfortunate incarceration for its own unconscionable benefit.

WHEREFORE, the petition is hereby DENIED.

SO ORDERED.

Very truly yours,

(Sgd.)JULIETA Y. CARREON
Clerk of Court



Endnotes:

[1]cralaw Penned by Associate Justice Ma. Alicia Austria-Martinez and concurred in by Associate Justices Portia Aliņo Hormachuelos and Elvijohn S. Asuncion of the Sixth Division

[2]cralaw Penned by Commissioner Ireneo B. Bemardo and concurred in by Commissioners Lourdes C. Javier and Tito G. Tolentino of the Third Division.

[3]cralaw Rollo, p. 28.

[4]cralaw Hagonoy Rural Bank Inc. vs. NLRC, 285 SCRA 297 [1998].

[5]cralaw Stolt-Nielsen Marine Services, Inc. vs. NLRC, 300 SCRA 713 [1998].

[6]cralaw Azcor Manufacturing, Inc. vs. NLRC, 303 SCRA 26 [1999].


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