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SECOND DIVISION

Sirs/Mesdames:

Quoted hereunder, for your information, is a resolution of this Court dated OCT 10 2005.

G.R. No. 167775 ( Jose Cual, Jr. vs. Leonis Navigation Company, Inc./Hernani Feusca and World Marine Panama S.A., and Court of Appeals .)

This is a petition for review on certiorari under Rule 45 of the 1997 Revised Rules of Civil Procedure, seeking to reverse and set aside the August 6, 2004 Decision of the Court of Appeals in CA-G.R. SP No. 83623, which affirmed with modification the decision of the National Labor Relations Commission (NLRC) in NLRC Case No. V-000008-2003, and the March 11, 2005 Resolution of the Court of Appeals denying petitioner's motion for reconsideration.

The instant petition originated from a complaint for illegal dismissal and payment of salary for the unexpired portion of the contract, moral, exemplary and actual damages filed by petitioner against respondents. Petitioner filed the complaint, docketed as RAB Case No. M-01-04-1011, on April 4, 2001 with the Regional Arbitration Branch No. VI of the NLRC in Bacolod City.

Respondent Leonis Navigation Company, Inc. (Leonis), the manning agency of respondent World Marine Panama S.A. (World Marine), hired petitioner on March 5, 2000 as a radio operator for the vessel Ivory Grill for a period of twelve months. Barely three months on board the vessel, Leonis repatriated petitioner to the Philippines for transfer to another vessel based on the remark of an official of World Marine that petitioner could not operate the international marine satellite (INMARSAT), a modern communication equipment.

On January 27, 2003, Executive Labor Arbiter Danilo C. Acosta rendered a decision in RAB Case No. M-01-04-1011, dismissing petitioner's complaint on the ground that he was not illegally dismissed but was recommended for transfer to another vessel in view of his inability to operate the INMARSAT. Petitioner elevated the matter to the NLRC, which reversed the Labor Arbiter's finding and ruled that petitioner was constructively dismissed. The NLRC decision dated September 25, 2003 awarded petitioner a total amount of US$2,294.75 representing his basic salary, vacation leave, subsistence allowance, PJ Supervisory and retirement pay. The NLRC held that petitioner was entitled to moral and exemplary damages in the amounts of US$ 5,000.00 and US$ 3,000.00, respectively, and ten percent (10%) attorney's fees. The NLRC held all respondents solidarity liable for the monetary award.

Respondents elevated the matter to the Court of Appeals, which rendered a Decision on August 6, 2004, partially granting respondents' petition for certiorari by deleting the award for moral and exemplary damages for lack of basis. The Court of Appeals affirmed the NLRC's finding that petitioner was constructively dismissed as his transfer to another vessel did not materialize rendering petitioner without work for almost one (1) year. The Court of Appeals also absolved respondent Hernani Feusca from any liability for lack of showing of bad faith on his part.

In deleting the award for moral and exemplary damages, the Court of Appeals explained that petitioner did not allege facts to support a conclusion that his dismissal was attended by bad faith or fraud, or constituted an act oppressive to labor, was done in a manner contrary to morals, good customs, or public policy.

Petitioner's motion for reconsideration of its decision having been denied by the Court of Appeals, he now brings to the Court the instant petition, questioning the deletion of the award for damages.

The petition must be denied.

As correctly held by the Court of Appeals, to warrant an award of moral damages, it must be shown that the dismissal of the employee was attended by bad faith, or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs or public policy. ¹ The person claiming moral damages must prove the existence of bad faith by clear and convincing evidence for the law always presumes good faith. It is not enough that one merely suffered sleepless nights, mental anguish, serious anxiety as the result of the actuations of the other party. Invariably, such action must be shown to have been willfully done in bad faith or with ill motive, and bad faith or ill motive under the law cannot be presumed but must be established with clear and convincing evidence. ²

The Court of Appeals found petitioner's complaint wanting in factual allegations constitutive of bad faith or ill will on the part of respondents warranting the award of moral damages. Moreover, the determination of whether or not petitioner is entitled to moral damages calls for the examination of factual evidence on record which is clearly outside the province of this Court. As a general rule, the appreciation and determination of factual antecedents by the Court of Appeals is entitled to great weight and respect and is binding on the Court absent any showing that the Court of Appeals gravely abused its discretion in exercising its review power. Petitioner not being entitled to award of moral damages, an award of exemplary damages is likewise baseless. ³

IN VIEW OF THE FOREGOING, the instant petition for review on certiorari is DENIED and the Decision of the Court of Appeals in CA-G.R. SP No. 83623 is hereby AFFIRMED.

Very truly yours,

(Sgd.) LUDICHI YASAY-NUNAG

Clerk of Court