G.R. No.

104321 October 25, 1994

MERCEDES M. BONOTAN, petitioner,
vs.
NATIONAL LABOR RELATIONS COMMISSION (Second Division) and BONIFACIO ONGPAUCO, doing
business under the name "BARRIO FIESTA", respondents.
Caballero, Calub, Aumentado & Associates Law Offices for petitioner.
Bengzon, Zarraga, Narciso, Cudala, Pecson, Bengson & Jimenez for private respondent.
PUNO, J.:
Petitioner Mercedes M. Bonotan prays for the reversal of the decision of the National Labor Relations Commission,
dated February 27, 1992, dismissing her complaint for unfair labor practice and illegal separation.
Petitioner worked as a food checker at the "Barrio Fiesta" Ermita Branch owned by private respondent Bonifacio
Ongpauco. Petitioner charged that the management, particularly the floor manager of the restaurant, prevented her from
performing her union duties. Allegedly, she was dismissed due to her union activities on May 21, 1990. She filed a
complaint for unfair labor practice and illegal dismissal on August 15, 1990, praying for the award of backwages and
separation pay.
Private respondent had a different version. He claimed that in May 1990, their head waiter approached petitioner to
follow-up on an order of a customer. Petitioner ignored him. The Operations Manager, Mr. Virgilio Montenegro,
personally
checked
on
the
order.
Petitioner
was
peeved
and
shouted
at
Mr. Montenegro.
Petitioner's demeanor constituted insubordination under item no. 12 of the company's rules and regulations 1which
warrants a ten-day suspension. Accordingly, in a Memorandum dated May 21, 1990, 2 petitioner, was suspended from
work for ten (10) days, effective May 22, 1990 until June 2, 1990. Petitioner, however, refused to acknowledge receipt of
the Memorandum.
On June 3, 1990, after the lapse of her suspension, petitioner still failed to report for work. Private respondent sent a
representative, Mr. Reymar Regencia, to petitioner requesting her to return to work as her services were badly needed in
the restaurant. Petitioner still refused.
Hence, in a letter dated June 5, 1990, 3 petitioner was required to explain her refusal to return to work. Petitioner was
also warned that unless she give a satisfactory explanation, she would be considered as having abandoned her work.
Private respondent received no word from petitioner. Two (2) months later, petitioner informed private respondent of her
intention to resign. However, she demanded payment of separation pay. Private respondent refused since petitioner
abandoned her job. On August 15, 1990, petitioner filed a complaint for illegal dismissal and unfair labor practice.
In due time, Labor Arbiter Ricardo C. Nora rendered judgment 4 in favor of petitioner ruling that the latter was illegally
dismissed from service.
The judgment was reversed on appeal by the second division of the National Labor Relations Commission (NLRC). It
held that petitioner was not dismissed from service. She was ordered to report back to work, without any award of
backwages, within five (5) days from receipt of the decision, otherwise she would be considered as having abandoned
her job. 5
Hence this petition, where petitioner contends:
I
RESPONDENT NLRC HAS NO JURISDICTION TO ENTERTAIN PRIVATE RESPONDENT'S
APPEAL.
II
RESPONDENT NLRC GRAVELY ERRED/ABUSED ITS DISCRETION IN SETTING ASIDE AND
REVERSING THE DECISION OF THE LABOR ARBITER, DATED JUNE 21, 1991:
BY HOLDING THAT PRIVATE RESPONDENT DID NOT DISMISS, MUCH LESS
ILLEGALLY, HEREIN PETITIONER
BY HOLDING THAT PETITIONER HAD ABANDONED HER WORK WITH
PRIVATE RESPONDENT
BY HOLDING THAT PETITIONER HAD BELATEDLY FILED HER FORMAL
COMPLAINT
III
RESPONDENT NLRC GRAVELY ERRED/ABUSED ITS DISCRETION IN NOT SUSTAINING THE

AFORESAID DECISION OF THE LABOR ARBITER DATED JUNE 21, 1991.

The petition is devoid of merit.
In support of her first assigned error, petitioner claims that public respondent NLRC had jurisdiction to entertain private
respondent's appeal for no appeal bond was filed to support it. Further, petitioner contends that the appeal was filed
beyond the reglementary period.
Petitioner's stance is not sustained by the records of the case. A perusal of the records will ]reveal that private respondent'
appeal
was
duly
supported
by a supersedeas bond with the Philippine Charter Insurance Corporation as surety. 6 Likewise, the appeal was filed on
time as explained by public respondent in its Comment 7 viz:
With regard to petitioner's claim that there was no allegation on the part of private respondent of the date
when it received a copy of the Labor Arbiter's decision, we must point out that in fact said date is
contained in the first page, first paragraph of the appeal. Petitioner's counsel however must have
overlooked the mentioned portion of the appeal which states:
Respondent-appellant, by counsel, respectfully brings this appeal before the Honorable
Commission, challenging the 21 June 1991 decision of the Labor Arbiter Ricardo Nora
finding that complainant was illegally dismissed. The dispositive portion of the
decision,copy of which was received 5 July 1991, reads: . . .
In support of the second assigned error, petitioner maintains that: (1) she was dismissed due to her union activities; (2)
she did not receive any notice of her suspension, and (3) she did not abandon her job.
The evidence on record repudiates the pretension of petitioner.
At best, petitioner could only make a vague and general charge of union busting and illegal dismissal against her
employer. Her claim that she was prohibited from reporting for union activities and that her dismissal from service was
due to her affiliation with the company's labor union require substantial evidence. No concrete evidence or specific
circumstance was cited by petitioner to prove her accusations.
Similarly, petitioner's insistence that she had no notice of her suspension is belied by the evidence. The records will bear
that on May 21, 1990, petitioner had an argument with the operations manager of the restaurant. Immediately, on the
same day, at around 10:35 p.m., private respondent issued a Memorandum to petitioner informing the latter of her tenday suspension from work for insubordination. Petitioner, however, refused to acknowledge receipt of the Memorandum.
Her presence at the restaurant and refusal to receive service of the Memorandum were witnessed by three (3) of her coemployees. 8 After the lapse of her suspension, a representative of private respondent. Mr. Reymar Regencia, went to
petitioner's residence and informed the latter of the lapse of her suspension and that her services were badly needed at the
restaurant. Petitioner paid no heed. She still did not report for work. Finally, on June 5, 1990, private respondent sent
another letter to petitioner requiring her to explain her continued absence from work, with a warning that unless a
satisfactory explanation is given, petitioner shall be considered as having abandoned her job. Again, there was no
response from petitioner. After a couple of days, petitioner went to see private respondent and demanded from the latter
her separation pay. Understandably, private respondent refused for petitioner was never dismissed but has, in fact,
abandoned her work. Further, it should be stressed that petitioner's failure to return to work without leave has been duly
recorded by private respondent in petitioner's time card. A report relative thereto was also submitted to the Department of
Labor pursuant to Section II, Rule XIV of the Rules Implementing Batas Pambansa 130. 9
It bears emphasis that at no time in the proceedings below and in this Court did petitioner ever deny the occurrence of
the May 21, 1990 incident and the charge of insubordination against her which precipitated her suspension from work.
Instead,
petitioner
claims
ignorance
regarding
her
ten-day suspension and, to this day, insists that she was never notified of the same.
However, her actions subsequent to the issuance of the suspension order contradict her claim of lack notice. Firstly,
petitioner's altercation with the manager which resulted in her suspension happened on May 21, 1990. Petitioner insists
that the Memorandum was not served on her and she had no notice that she was suspended from work for ten (10) days,
effective May 22, 1990. The records, however, show that petitioner did not report for work on May 22, 1990, the first
day of her suspension. She did not offer any explanation therefor nor did she file any leave for her absence. The
reasonable conclusion is that she did not report for work on May 22, 1990 for she has knowledge in fact that she was
suspended from work. Secondly, even assuming that she was not served the May 21, 1990 Memorandum informing her
of her suspension, private respondent may be deemed to have substantially complied with the requisite notice and
hearing. It will be noted (and again, it was never denied by petitioner) that after the lapse of the period of her suspension,
a representative of private respondent, Mr. Reymar Regencia, personally went to her residence informing her of the same
and requesting her to go back to work. She did not. In a final move, private respondent sent a letter to petitioner on June
5, 1990 requiring her to explain her continued absence from work. Still, nothing was heard from petitioner until more
than two (2) months later, or on August 15, 1990, when petitioner filed a complaint for illegal dismissal. Taking into
account the factual circumstances of the case, petitioner cannot reasonably claim ignorance of the fact of her suspension
from work and the cause thereof. Knowledge of the issuance of the suspension order must thus be imputed to petitioner.
Abandonment of work on the part of an employee is never taken lightly. It requires clear and convincing evidence of: (1)

the employee's intention to abandon his job, and (2) some overt act from which it may be inferred that the employee had
no more intent to work. 10 These two (2) requisites were sufficiently proved and established by private respondent as
discussed above.
We thus accord finality to the factual finding of public respondent NLRC, supported as it is by substantial evidence, that
petitioner abandoned her work and unjustifiably refused to return to work after the lapse of her suspension therefrom.
However, in the case of Sampang v. Inciong, 11 the Court ruled that in determining the penalty to be imposed on an
erring employee, due consideration must be given to the employee's length of service and the number of violations he
committed during his employ.
In the case at bench, since petitioner has been in the service of Barrio Fiesta for the past twenty-six (26) 12 years and
nowhere in the records does it appear that she committed any previous violation of company rules and regulations, we
find that the decision of public respondent NLRC ordering her to return to work without backwages is just and equitable.
Petitioner's dismissal from work would be too severe a penalty under the circumstances.
IN VIEW WHEREOF, the petition is DENIED for lack of showing of any grave abuse of discretion on the part of public
respondent NLRC. The impugned decision of public respondent is thus affirmed. No costs.

G.R. No. 179001

August 28, 2013

MZR INDUSTRIES, MARILOU R. QUIROZ AND LEA TIMBAL, PETITIONERS,

vs.
MAJEN COLAMBOT, RESPONDENT.
DECISION
PERALTA, J.:
This is a Petition for Review on Certiorari under Rule 45 of the Rules of Court seeking the reversal of the
Decision1 dated May 17, 2007 and Resolution2 dated July 25, 2007 of the Court of Appeals in CA-G.R. SP No. 98445,
reversing the Decision dated October 31, 20063 and Resolution4 dated December 21, 2006 of the National Labor
Relations Commission (NLRC) which set aside the Decision5 dated April 28, 2006 of the Labor Arbiter.
The facts are as follows:
On February 8, 2000, petitioner Marilou Quiroz, Owner and Vice-President for Finance and Marketing of MZR, hired
respondent Majen Colambot (Colambot) as messenger. Colambot's duties and responsibilities included field,
messengerial and other liaison work.
However, beginning 2002, Colambot's work performance started to deteriorate. Petitioners issued several memoranda to
Colambot for habitual tardiness, negligence, and violations of office policies.6 He was also given written warnings for
insubordination committed on August 27, 2003 and September 11-12, 2003;7 on September 16, 2003 for negligence
caused by careless handling of confidential office documents;8 on September 22, 2004 for leaving his post without
proper turnover;9 and, on October 4, 2004 for insubordination.10
Petitioners claimed that despite written warnings for repeated tardiness and insubordination, Colambot failed to mend his
ways. Hence, in a Memorandum11 dated October 25, 2004 issued by petitioner Lea Timbal (Timbal), MZR's
Administrative Manager, Colambot was given a notice of suspension for insubordination and negligence.
Again, in a Memorandum12 dated November 25, 2004, Colambot was suspended from November 26, 2004 until
December 6, 2004 for insubordination. Allegedly, Colambot disobeyed and left the office despite clear instructions to
stay in the office because there was an important meeting in preparation for a very important activity the following day.
Petitioners claimed they waited for Colambot to report back for work on December 7, 2004, but they never heard from
him anymore. Later, petitioners were surprised to find out that Colambot had filed a complaint for illegal suspension,
underpayment of salaries, overtime pay, holiday pay, rest day, service incentive leave and 13th month pay. On December
16, 2004, the complaint was amended to illegal dismissal, illegal suspension, underpayment of salaries, holiday pay,
service incentive pay, 13th month pay and separation pay.13
For his part, Colambot narrated that he worked as a messenger for petitioners since February 2000. That on November
2004, he was directed to take care of the processing of a document in Roxas Boulevard, Pasay City. When he arrived at
the office around 6 to 7 o'clock in the evening, he looked for petitioner Quiroz to give the documents. The latter told him
to wait for her for a while. When respondent finally had the chance to talk to Quiroz, she allegedly told him that she is
dissatisfied already with his work performance. Afterwards, Colambot claimed that he was made to choose between
resigning from the company or the company will be the one to terminate his services. He said he refused to resign.
Colambot alleged that Quiroz made him sign a memorandum for his suspension, from November 26 to December 6,
2004. After affixing his signature, Quiroz told him that effective December 7, 2004, he is already deemed terminated.
Later, on December 2, 2004, respondent went back to the company to look for Timbal to get his salary. He claimed that
Timbal asked him to turn over his company I.D.14

Petitioners, however, insisted that while Colambot was suspended due to insubordination and negligence, they
maintained that they never terminated Colambot's employment. They added that Colambot's failure to report for work
since December 7, 2004 without any approved vacation or sick leave constituted abandonment of his work, but they
never terminated his employment. Petitioners further emphasized that even with Colambot's filing of the complaint
against them, his employment with MZR has not been terminated.
Colambot, meanwhile, argued that contrary to petitioners claim that he abandoned his job, he claimed that he did not
report back to work after the expiration of his suspension on December 6, 2004, because Quiroz told him that his
employment was already terminated effective December 7, 2004.
On April 28, 2006, the Labor Arbiter rendered a Decision,15 the dispositive portion of which reads:
WHEREFORE, premises considered, respondents are hereby declared guilty of ILLEGAL DISMISSAL and hereby
ORDERED to reinstate complainant to his former position with full backwages from date of dismissal until actual
reinstatement and moral and exemplary damages in the sum of P100,000.00 and P50,000.00, respectively.
The computation of the judgment award marked as Annex "A" is part and parcel of this decision.
SO ORDERED.16
The Labor Arbiter held that there was no abandonment as there was no deliberate intent on the part of Colambot to sever
the employer-employee relationship. The Labor Arbiter likewise noted that Colambot should have been notified to return
back to work, which petitioner failed to do.
Aggrieved, petitioners appealed the decision before the NLRC.
On October 31, 2006, the NLRC rendered a Decision,17 the dispositive portion of which reads as follows:
WHEREFORE, premises considered, the appeal filed by respondents is GRANTED. The judgment of the Labor Arbiter
dated April 28, 2006 is hereby SET ASIDE and the Complaint is DISMISSED for lack of merit.
SO ORDERED.18
The NLRC pointed out that Colambot's complaint was unsupported by any evidence and was not even made under oath,
thus, lacking in credibility and probative value. The NLRC further believed that Colambot abandoned his work due to his
refusal to report for work after his suspension. The failure of MZR to notify Colambot to return back to work is not
tantamount to actual dismissal.
Colambot filed a motion for reconsideration, but was denied. Thus, via a petition for certiorari under Rule 65 of the Rules
of Court, raising grave abuse of discretion as a ground, Colambot appealed before the Court of Appeals and sought that
the Decision dated October 31, 2006 and Resolution dated December 21, 2006 of the NLRC be reversed and set aside.
In the disputed Decision19 dated May 17, 2007, the Court of Appeals granted the petition and reversed the assailed
Decision dated October 31, 2006 and Resolution dated December 21, 2006 of the NLRC. The Decision dated April 28,
2006 of the Labor Arbiter was ordered reinstated with modification that in lieu of reinstatement, petitioners were ordered
to pay respondent separation pay equivalent to one (1) month pay for every year of service in addition to full backwages.
The appellate court ruled that Colambot was illegally dismissed based on the grounds that: (1) MZR failed to prove
abandonment on the part of Colambot, and (2) MZR failed to serve Colambot with the required written notices of
dismissal.2007.
Petitioners appealed, but was denied in a Resolution20 dated July 25, 2007.
Thus, via Rule 45 of the Rules of Court, before this Court, petitioners raised the following issues:
I
THE HONORABLE COURT OF APPEALS ERRED IN RULING THAT COMPLAINANT WAS
ILLEGALLY DISMISSED FROM THE SERVICE.
II
THE HONORABLE COURT SERIOUSLY ERRED IN RULING THAT PETITIONER IS ENTITLED TO
SEPARATION PAY AND BACKWAGES.
Petitioners argue that they did not terminate the employer-employee relationship with Colambot. Other than Colambot's
self-serving and unverified narration of facts, he failed to present any document showing that he was terminated from
work. Petitioners assert that Colambot abandoned his work when he failed to report back to work without an approved
vacation or sick leave, thus, he is not entitled to an award of separation pay and backwages.
RULING
While we recognize the rule that in illegal dismissal cases, the employer bears the burden of proving that the termination
was for a valid or authorized cause, in the present case, however, the facts and the evidence do not establish a prima facie

case that the employee was dismissed from employment. Before the employer must bear the burden of proving that the
dismissal was legal, the employee must first establish by substantial evidence the fact of his dismissal from service. If
there is no dismissal, then there can be no question as to the legality or illegality thereof.21
In the present case, other than Colambot's unsubstantiated allegation of having been verbally terminated from his work,
there was no evidence presented to show that he was indeed dismissed from work or was prevented from returning to his
work. In the absence of any showing of an overt or positive act proving that petitioners had dismissed respondent, the
latter's claim of illegal dismissal cannot be sustained22 as the same would be self-serving, conjectural and of no
probative value.
A review of the Notice of Suspension23 dated November 25, 2004 shows that respondent was merely suspended from
work for 6 days, there was, however, no evidence that Colambot was terminated from work. For clarification, we quote:
TO : MAJEN COLAMBOT
MZR MESSENGER
FROM : HUMAN RESOURCE DEPT
DATE : NOV. 25, 2004
RE : SUSPENSION DUE TO INSUBORDINATION
xxxx
Cases of insubordination and violations have been filed against you many times. We kept on reminding that
you should have changed and improved your working attitudes because it greatly affects not only your
working performance but the company's productivity as well.
Your attitude only shows HARD HEADEDNESS AND LACK OF RESPECT TO YOUR SUPERIORS
which in any company cannot tolerate.
With these, you are suspended for 6 working days effective November 26, 2004, you will only report on
December 7, 2004.
THIS IS OUR LAST WARNING FOR YOU TO IMPROVE, FAILURE TO DO SO MAY MEAN
TERMINATION OF YOUR EMPLOYMENT CONTRACT.
x x x x24
While the same appeared to contain a warning of termination should Colambot fail to improve his behavior, it is likewise
apparent that there was also a specific instruction for him to report back to work, on December 7, 2004, upon serving his
suspension. The subject of the Letter, i.e., "Suspension due to Insubordination," the wordings and content of the letter is a
clear-cut notice of suspension, and not a notice of termination. The notice of suspension may have contained warnings of
termination, but it must be noted that such was conditioned on the ground that Colambot would fail to improve his
attitude/behavior. There were no wordings whatsoever implying actual or constructive dismissal. Thus, Colambot's
general allegation of having been orally dismissed from the service as against the clear wordings and intent of the notice
of suspension which he signed, we are then inclined to believe that there was no dismissal.
In Machica v. Roosevelt Services Center, Inc.,25 this Court sustained the employer's denial as against the employees'
categorical assertion of illegal dismissal. In so ruling, this Court held that:
The rule is that one who alleges a fact has the burden of proving it; thus, petitioners were burdened to prove their
allegation that respondents dismissed them from their employment. It must be stressed that the evidence to prove this fact
must be clear, positive and convincing. The rule that the employer bears the burden of proof in illegal dismissal cases
finds no application here because the respondents deny having dismissed the petitioners.26
Hence, as between respondents general allegation of having been orally dismissed from the service vis-a-vis those of
petitioners which were found to be substantiated by the sworn statement of foreman Wenifredo, we are persuaded by the
latter. Absent any showing of an overt or positive act proving that petitioners had dismissed respondents, the latters
claim of illegal dismissal cannot be sustained. Indeed, a cursory examination of the records reveal no illegal dismissal to
speak of.27
Moreover, in Abad v. Roselle Cinema,28 we ruled that the substantial evidence proffered by the employer that it had not
terminated the employee should not be ignored on the pretext that the employee would not have filed the complaint for
illegal dismissal if he had not really been dismissed. We held that such non sequitur reasoning cannot take the place of
the evidence of both the employer and the employee.

Neither could the petitioners be blamed for failing to order respondent to return back to work.1wphi1 Records show that
Colambot immediately filed the complaint for illegal dismissal on December 16, 2004,29 or just a few days when he was
supposed to report back to work on December 7, 2004. For petitioners to order respondent to report back to work, after
the latter had already filed a case for illegal dismissal, would be unsound.
However, while the Court concurs with the conclusion of the NLRC that there was no illegal dismissal, no dismissal
having actually taken place, the Court does not agree with its findings that Colambot committed abandonment of work.
In a number of cases,30 this Court consistently held that to constitute abandonment of work, two elements must be
present: first, the employee must have failed to report for work or must have been absent without valid or justifiable
reason; and second, there must have been a clear intention on the part of the employee to sever the employer-employee
relationship manifested by some overt act.
In the instant case, other than Colambot's failure to report back to work after suspension, petitioners failed to present any
evidence which tend to show his intent to abandon his work. It is a settled rule that mere absence or failure to report for
work is not enough to amount to abandonment of work. There must be a concurrence of the intention to abandon and
some overt acts from which an employee may be deduced as having no more intention to work.31 On this point, the CA
was correct when it held that:
Mere absence or failure to report for work, even after notice to return, is not tantamount to abandonment. The burden of
proof to show that there was unjustified refusal to go back to work rests on the employer. Abandonment is a matter of
intention and cannot lightly be presumed from certain equivocal acts. To constitute abandonment, there must be clear
proof of deliberate and unjustified intent to sever the employer-employee relationship. Clearly, the operative act is still
the employees ultimate act of putting an end to his employment. Furthermore, it is a settled doctrine that the filing of a
complaint for illegal dismissal is inconsistent with abandonment of employment. An employee who takes steps to protest
his dismissal cannot logically be said to have abandoned his work. the filing of such complaint is proof enough of his
desire to return to work, thus negating any suggestion of abandonment.32
Suffice it to say that, it is the employer who has the burden of proof to show a deliberate and unjustified refusal of the
employee to resume his employment without any intention of returning. It is therefore incumbent upon petitioners to
ascertain the respondents interest or non-interest in the continuance of their employment. This, petitioners failed to do
so.
These circumstances, taken together, the lack of evidence of dismissal and the lack of intent on the part of the respondent
to abandon his work, the remedy is reinstatement but without backwages.33 However, considering that reinstatement is
no longer applicable due to the strained relationship between the parties and that Colambot already found another
employment, each party must bear his or her own loss, thus, placing them on equal footing.
Verily, in a case where the employee's failure to work was occasioned neither by his abandonment nor by a termination,
the burden of economic loss is not rightfully shifted to the employer; each party must bear his own loss.34
WHEREFORE, premises considered and subject to the above disquisitions, the Decision dated May 1 7, 2007 of the
Court of Appeals is hereby REVERSED and SET ASIDE. The Resolution dated October 31, 2006 of the National Labor
Relations Commission in NLRC NCR CASE No. 00-11-12189-04/ CA No. 049533-06 is hereby REINSTATED.
SO ORDERED.

MARIO B. DIMAGAN,
Petitioner,

G.R. No. 191053

Present:

- versus -

dacworks United, incorporated and/or

dean a. cancino,
Respondents.

VELASCO, JR., J.,

Chairperson,
PERALTA,
ABAD,
MENDOZA, and
PERLAS-BERNABE, JJ.
Promulgated:
November 28, 2011

x------------------------------------------------------------------------------------x
DECISION

PERLAS-BERNABE, J.:
This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure assailing the
Decision1 dated July 10, 2009 and the Resolution2 dated January 22, 2010 rendered by the Court of Appeals (CA) in
CA-G.R. SP No. 105771. The CA reversed and set aside the Resolutions 3 of the National Labor Relations Commission
(NLRC) dated May 29, 2007 and July 15, 2008 in NLRC NCR CA No. 047312-06/NLRC NCR-00-07-07590-03 finding
petitioner Mario B. Dimagan to have been illegally dismissed.
Petitioner Mario B. Dimagan is a stockholder of respondent DACWORKS UNITED, INC., which is engaged in the
business of installing, maintaining and repairing airconditioningsystems. In July 1997, he started working for respondent
company as Officer-in-Charge (OIC) for mechanical installation with a monthly salary of P8,000.00.

Sometime in 2002, petitioner was downgraded from his post as OIC to supervisor. Then, in March of the following year,
he was made to work as a mere technician. When he vocally expressed his concerns regarding his assignments,
one Loida Aquino, who was in charge of servicing/personnel under the direct supervision of respondent Dean
A. Cancino, told him not to report for work anymore. Thereafter, a certain Carlito Diaz, Operations Manager of
respondent company, castigated petitioner for not following Aquino's instruction to work as a technician. This prompted
petitioner to file a complaint for illegal dismissal, non-payment of overtime pay, holiday pay, service incentive leave and
separation pay against respondents.

Respondents denied that petitioner was illegally dismissed arguing that, since April 4, 2003 up to the time of the filing of
the complaint, petitioner never reported for work and continuously violated the company policy on absence without
official leave (AWOL). They allegedly sent a total of four (4) memoranda for the period August 2002 to March 2003
informing petitioner of his offenses, including being AWOL, but he nonetheless unjustifiably refused to return to work.
In reply, petitioner denied ever receiving any one of the four memoranda allegedly sent by respondents.
On October 28, 2005, the Labor Arbiter rendered a decision 4 in favor of petitioner disposing as follows:

WHEREFORE, respondents are hereby ordered to reinstate complainant to his former position
with full backwages which as of this date has amounted to P240,800.00.
All the other claims are hereby DISMISSED.
SO ORDERED.5
In holding that petitioner was illegally dismissed, the Labor Arbiter pointed out that there was no denial by respondents
that they relegated petitioner from the position of OIC to supervisor and then to ordinary technician. The last assignment
was meant to humiliate him and deprive him of his dignity as stockholder of the company. Moreover, the immediate
filing by petitioner of the complaint for dismissal negated the defense of abandonment interposed by respondents.
On appeal, the NLRC rendered a Resolution6 dated May 29, 2007 affirming the Labor Arbiter's Decision in toto. It took
note of the dearth of evidence to show that petitioner duly received the memoranda allegedly sent by respondents
informing him of his suspension from work. In affirming petitioner's constructive dismissal, the NLRC ratiocinated that
he was not given overtime pay despite the fact that he frequently worked late nights because he was supposedly a

managerial employee. But when respondents started treating him as a rank-and-file employee by making him work as a
mere technician, such act of clear discrimination, insensibility or disdain became unbearable to petitioner.

Further, the NLRC clarified that the phrase as of this date in the decretal portion of the Decision of the Labor Arbiter
signified that the computation of petitioner's backwages starts from the date when his compensation was withheld from
him until the date of his actual reinstatement, as provided in Article 279 of the Labor Code.
Respondents sought reconsideration7 of the NLRC's Resolution. However, in his Comment/Opposition8 thereto,
petitioner alleged that respondents rigged, tampered, distorted and perverted the mailing of their motion for
reconsideration to make it appear that it was mailed on the last day for filing thereof, or on June 25, 2007, at
the Mayamot Post Office. To prove the same, petitioner submitted a Certification 9 from the postmaster of
the Mayamot Post Office, Antipolo City, stating that there was no record of registered mails posted on June 25, 2007 by
Atty. Gerardo B. Collado, counsel for the respondents, and addressed to the NLRC and to petitioner's counsel, Atty.
Jonathan Polines.
On July 15, 2008, the NLRC issued a Resolution10 denying respondents' motion for reconsideration for lack of merit
without, however, passing judgment on the allegation that respondents manipulated the filing of their motion for
reconsideration. The NLRC merely directed respondents to file a comment and/or explanation within five (5) days from
receipt of the aforesaid Resolution, to which the latter complied. 11
Subsequently, respondents filed a petition for certiorari 12 under Rule 65 of the same Rules before the CA. In its
challenged Decision13 dated July 10, 2009, the CA reversed and set aside the Resolutions of the NLRC upon a finding
that there was no dismissal of petitioner to speak of, whether actual or constructive, considering the absence of
substantial evidence to prove that his services were, in fact, terminated by respondents; or that there was a demotion in
rank or a diminution of his salaries, benefits and privileges

With regard to the procedural aspect, the CA held that, since the NLRC did not categorically address the issue on the
alleged manipulation in the mailing of respondents' motion for reconsideration even after the required explanation was
submitted by the latter, then said motion was considered as timely filed.
Aggrieved, petitioner moved14 for reconsideration of the CA Decision, but it was denied in the Resolution 15 dated
January 22, 2010 for lack of merit. Hence, the instant recourse on the following grounds, to wit:
(A)
THE COURT OF APPEALS HAS FAILED IN ITS DUTY TO DETERMINE THAT
RESPONDENTS HAVE FAILED TO COMPLY WITH THE REQUIREMENTS ON THE
APPROPRIATE SWORN CERTIFICATION ON FORUM-SHOPPING TO BE SUBMITTED
TOGETHER WITH THE PETITION FOR CERTIORARI, THAT WOULD CALL FOR THE
EXERCISE BY THIS HONORABLE SUPREME COURT OF ITS POWER OF
SUPERVISION.

(B)
THE COURT OF APPEALS HAS FAILED IN ITS DUTY TO DETERMINE THAT
RESPONDENTS HAVE VIOLATED THE CERTIFICATION ON NON-FORUM SHOPPING,
BY REFUSING AND FAILING TO DISCLOSE THE PENDING INVESTIGATION BEING
CONDUCTED BY THE NLRC ON THE RESPONDENTS' MANIPULATION OF THE
MAILING OF THEIR MOTION FOR RECONSIDERATION BELOW, THAT WOULD CALL

FOR THE EXERCISE BY THIS HONORABLE SUPREME COURT OF ITS POWER OF

SUPERVISION.

(C)
THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT PETITIONER WAS
NOT ILLEGALLY DISMISSED, DESPITE THE EXISTENCE OF EVIDENCE INDICATING
THE CONSTRUCTIVE DISMISSAL BY REASON OF CLEAR DISCRIMINATION,
INSENSIBILITY OR DISDAIN COMMITTED BY THE EMPLOYER AGAINST THE
PETITIONER.16
Before delving into the merits of the instant case, the Court shall first resolve petitioner's claim that respondents are
guilty of forum shopping having failed to comply with the required form of the certification, as prescribed 17 by the
Rules of Court, and to disclose the pendency of an investigation being conducted by the NLRC with regard to the
allegation of manipulation and/or tampering in the mailing of respondents' motion for reconsideration.

The Court is not convinced.

Forum shopping exists when a party repetitively avails himself of several judicial remedies in different courts,
simultaneously or successively, all substantially founded on the same transactions and the same essential facts and
circumstances, and all raising substantially the same issues either pending in, or already resolved adversely by, some
other court.18
The elements of forum shopping are: (1) identity of parties, or at least such parties as represent the same interests in both
actions; (2) identity of rights asserted and reliefs prayed for, the relief being founded on the same set of facts; and (3) the
identity of the two preceding particulars, such that any judgment rendered in the other action will, regardless of which
party is successful, amount to res judicata in the action under consideration.19
There was no confluence of the foregoing elements in the instant case. Records show that when respondents filed their
petition for certiorari before the CA, their motion for reconsideration before the NLRC had already been resolved on the
merits, and the only incident left for the NLRC to adjudicate was the alleged mail tampering of respondents. The
pendency of such investigation, however, is merely incidental, such that its resolution will not amount to res judicata in
the petition for certiorari before the CA. Be that as it may, the Court examined the certification on forum
shopping20 attached to respondents' petition for certiorari before the CA, and found the same to have substantially
complied with the requirements under the rules.

On the merits, the Court finds petitioner's arguments meritorious.

At the outset, it must be pointed out that the main issue in this case involves a question of fact. It is an established rule
that the jurisdiction of the Supreme Court in cases brought before it from the CA via Rule 45 of the 1997 Rules of Civil
Procedure is generally limited to reviewing errors of law. This Court is not a trier of facts. In the exercise of its power of
review, the findings of fact of the CA are conclusive and binding and consequently, it is not our function to analyze or
weigh evidence all over again.21
This rule, however, is not ironclad. One of the recognized exceptions is when there is a divergence between the findings
of facts of the NLRC and that of the CA,22 as in this case. There is, therefore, a need to review the records to determine
which of them should be preferred as more conformable to evidentiary facts. 23

After a judicious scrutiny of the records, the allegations of petitioner and the defenses raised by respondents, the Court
cannot sustain the finding of the CA that petitioner was not illegally or constructively dismissed.
Constructive dismissal is defined as a quitting because continued employment is rendered impossible, unreasonable or
unlikely; when there is a demotion in rank or a diminution of pay.24 The test of constructive dismissal is whether a
reasonable person in the employee's position would have felt compelled to give up his position under the circumstances.
It is an act amounting to dismissal but is made to appear as if it were not. Constructive dismissal is therefore a dismissal
in disguise. The law recognizes and resolves this situation in favor of employees in order to protect their rights and
interests from the coercive acts of the employer.25
As held in the case of Coca-Cola Bottlers Philippines, Inc. vs. Del Villar,26 the burden falls upon the company to prove
that the employee's assignment from one position to another was not tantamount to constructive dismissal. In the case at
bar, respondents failed to discharge said burden. In fact, respondents never even disputed that petitioner was relegated
from the position of OIC to supervisor and, subsequently, to an ordinary technician. Clearly, the reduction in petitioner's
responsibilities and duties, particularly from supervisor to ordinary technician, constituted a demotion in rank tantamount
to constructive dismissal.

Thus, contrary to the position of the CA, it is of no consequence that petitioner failed to substantiate his allegation
that Loida Aquino, an employee of respondent company, informed him that he will be working as an ordinary technician,
and that when he openly voiced out his concern regarding the transfer, he was told not to report for work anymore. As
with all the other allegations made by petitioner, respondents never disputed or rebutted this fact.

Similarly, We cannot concur with the finding of the CA that it was petitioner who abandoned his employment by failing
to report for work or having gone AWOL.
Abandonment is the deliberate and unjustified refusal of an employee to resume his employment. 27 To constitute
abandonment of work, two elements must concur: (1) the employee must have failed to report for work or must have
been absent without valid or justifiable reason; and (2) there must have been a clear intention on the part of the employee
to sever the employer-employee relationship manifested by some overt act. 28 The employer bears the burden of proof
to show the deliberate and unjustified refusal of the employee to resume his employment without any intention of
returning.29
In the case of Hodieng Concrete Products, Inc. v. Emilia30, citing Samarca v. Arc-Men Industries, Inc.31, the Court has
ruled thus:
x x x. Absence must be accompanied by overt acts unerringly pointing to the fact that the employee
simply does not want to work anymore. And the burden of proof to show that there was unjustified
refusal to go back to work rests on the employer.
xxx
Abandonment is a matter of intention and cannot lightly be presumed from certain equivocal acts. To
constitute abandonment, there must be clear proof of deliberate and unjustified intent to sever the
employer-employee relationship. Clearly, the operative act is still the employees ultimate act of
putting an end to his employment.
Settled is the rule that mere absence or failure to report for work is not tantamount to abandonment
of work. x x x. (Emphasis supplied)

In this case, petitioner's failure to report for work was caused by the unwarranted demotion in rank that was imposed
upon him by respondents, not by any intention to sever employment ties with them. And his filing of the instant
complaint for illegal dismissal indubitably negates the allegation of abandonment. Had petitioner intended to forsake his
job, then he would not have found it necessary to institute this case against respondents.
In sum, the CA committed reversible error when it held that petitioner was not illegally or constructively dismissed. With
respect to the investigation being conducted by the NLRC regarding the alleged tampering and/or manipulation of the
mailing of respondents' motion for reconsideration filed before it, the Court no longer finds it necessary to pass upon the
same.
WHEREFORE, the instant petition is GRANTED. The assailed Decision and Resolution of the CA are SET
ASIDE. The Resolutions of the NLRC affirming the Decision of the Labor Arbiter are REINSTATED. Petitioner is
entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of
allowances, and to his other benefits computed from the time his compensation was withheld from him or on April 4,
2003, up to the time of his actual reinstatement, in accordance with Article 279 32 of the Labor Code.

[G.R. No. 116568. September 3, 1999]

DELFIN GARCIA, doing business under the name NAPCO-LUZMART, Inc., petitioners, vs. NATIONAL
LABOR RELATIONS COMMISSION and CARLITO LACSON, respondents.
DECISION
GONZAGA-REYES, J.:
Before us is a Petition for Certiorari under Rule 65 of the Rules of Court to annul and set aside the decision of the
National Labor Relations Commission[1] in NLRC CA No. L-001268 dated April 12, 1994 which affirmed the decision
of the Sub-Regional Arbitration Branch No. I in Dagupan City finding that the private respondent Carlito Lacson was
constructively dismissed by the petitioner Delfin Garcia doing business under the name NAPCO-LUZMART, Inc. and
awarding respondent backwages and separation pay.
The following facts as adopted by the National Labor Relations Commission (NLRC) are uncontroverted:
Complainant Carlito Lacson was employed on March 5, 1987 as boiler operator technician by Northwest Agro-Marine
Products Corporation (NAPCO). On December 12, 1990 respondent Luzmart, Inc., acquired NAPCO in a foreclosure
sale. Both companies were managed by respondent Delfin Garcia.
On January 28, 1993, there was a mauling incident which involved the complainant and Julius Z. Viray, his immediate
supervisor and allegedly a friend and compadre of respondent Garcia. As complainant suffered injuries as a result
thereof he reported the matter to police authorities and he sought treatment at the Teofilo Sison Memorial Provincial
Hospital. Both the complainant and Viray were asked to explain their sides. After the submission of the written
explanations, Delfin Garcia suspended both of them from work for a period of one month effective April 15, 1993. In the
same suspension order, complainant was further directed to explain in writing why he should not be dealt with
disciplinary action or terminated for his continued absences from February 15, 1993 up to the date of the memorandum
order. Complainant filed a complaint for illegal dismissal and other monetary claims but the same was dismissed without
prejudice. On September 1, 1993, the complainant refiled this case.[2]
The Labor Arbiter[3] ruled in favor of the respondent Carlito Lacson (LACSON). Petitioner NAPCO-Luzmart
(LUZMART) appealed to the NLRC which affirmed the decision of the Labor Arbiter after finding that the Labor Arbiter
did not commit any reversible error. The NLRC however deleted the award of attorneys fees in favor of LACSON. Its
decision, which adopted the conclusions of the Labor Arbiter, reads:
In finding for the complainant, the Labor Arbiter ruled:
The issues to be resolved in this case are: (1) whether or not the complainant was dismissed from his employment; (2)

whether or not he is entitled to his claim for overtime services, separation pay, 13 thmonth pay, premium pay for working
on holidays and rest days, separation pay, 13th month pay and service incentive leave pay; and, (3) whether or not the
complainant is considered an employee of the respondents since March 1987.
The first issue: Respondent Delfin Garcia insists that he did not dismiss the complainant and that he can return to his
work after his one month suspension, (affidavit of respondent Garcia, marked as Annex H of his position paper). On
the other hand, complainant Lacson maintains that he reported for work several times but respondent Garcia refused to
take him back and that the former told him to look for another job.
Let us scrutinize the evidence. The incident involving the complainant and Julius Viray, also an employee of the
respondents, wherein Viray allegedly mauled the complainant, happened on January 28, 1993. On February 1993, the
complainant submitted his handwritten explanation blaming Viray as the aggressor. According to the complainant, Viray
was drunk at the time of the incident and although he avoided Viray, the latter armed with a lead pipe, followed him and
wanted to kill him (Annex C complainant). Viray also submitted his handwritten explanation on February 2, 1993
(see Annex E-1 of respondents position paper). Viray only stated that a heated argument transpired. On March 31,
1993, respondent Garcia issued a Memorandum suspending both the complainant and Viray for one (1) month effective
April 15, 1993 and at the same time required the complainant to explain why he should not be terminated for being
absent from Feb. 15, 1993, (Annex F, respondents). The question is, why did it take respondent Delfin Garcia one (1)
month or more to decide and issue an order suspending the complainant and Viray? Why did he not suspend the two
immediately after the incident? This leads credence to the complainants allegation that he reported for work after
submitting his explanation but respondent Garcia refused to admit him back and told him to take a vacation or to look for
another work, hence he decided to file a complaint against him on Feb. 4, 1993, which was later dismissed without
prejudice, the reason for the dismissal of which was not explained to us by the complainant. Moreover, it is true that the
complainant failed to report for work since Feb. 15, 1993, why did respondent Garcia not issue an order or memorandum
after the complainant failed to report for a number of days and directing the complainant to report immediately otherwise
his employment will be terminated? We also agree with the complainants argument that the respondents should not have
asked him to explain his alleged failure to report for work since Feb. 15, 1993, because he has already filed a complaint
against Garcia earlier.
The second issue; Annexes G, G-1 to G-14 of the respondents, which are samples of respondents payroll, show
that whenever the complainant rendered overtime services, he was paid accordingly. Is he entitled to his claim for
13th monthpay, service incentive leave pay, vacation in sick leave pay and separation pay? Respondents maintain that
since the complainant was employed by them only on February 1, 1991, he has no right to claim benefits that arose
before his employment with them. That since he was not dismissed from his employment, he is not also entitled to his
claim for separation pay. (The resolution of this issue will also resolve the second issue)
Respondents argue that the services of the complainant with NAPCO since March 1987, cannot be credited or counted to
his length of service with LUZMART because his subsequent employment with LUZMART is a new employment as
shown in his employment contract (Annex D respondents) with LUZMART.
In the case of MDII Supervisors and Confidential Employees Association (FFW) vs. Presidential Assistant on Legal
Affairs, 79 SCRA 40 (1977), the Supreme Court ruled that:
xxx And there is no law which requires the purchaser to absorb the employees of the selling corporation.
As there is no such law, the most that the purchasing company may do, for purposes of public policy and social justice, is
to give preference to the qualified separated employees of the selling company, who in their judgment are necessary in
the continued operation of the business establishment. This RCAM did. It required private respondents to reapply as
new employees as a condition for rehiring subject to the usual probationary status, the latters past services with the
petitioners, transferors not recognized (San Felipe Neri School of Mandaluyong, Inc., et. Al. Vs. NLRC, Roman Catholic
Archbishop of Manila (RCAM), et. al., G.R. No. 78350, Sept. 11, 1991.).
Except for his bare allegation that LUZMART was only organized by the controlling stockholders of NAPCO to acquire
or gain control of the latter, the complainant did not present sufficient evidence to prove his allegation, LUZMART is an
entirely new corporation or entity with a distinct personality from NAPCO, and is not an alter ego of
NAPCO. Therefore, LUZMART is not under obligation to absorb the workers of NAPCO or to absorb the length of
service earned by its employees.
The respondents are therefore correct in their assertion that they should not be answerable for the complainants claim for
benefits that may be due him before January 1, 1991.
As we have discussed earlier, the complainant herein was constructively dismissed from his employment by respondent
Delfin Garcia because of the latters refusal to admit him back to work inspite of the complainants insistence to resume
his work after he has given his explanation.
On appeal, respondent contends that the Labor Arbiter erred in awarding backwages to the complainant from February 1,
1993 up to the date of the promulgation of the decision, and in awarding separation pay of one month pay for every year
of service.
We are in full accord with the Labor Arbiters conclusion that the complainant was constructively dismissed by the

respondent Delfin Garcia when he refused to admit the complainant despite his insistence to go back to work.
However, we delete the award of attorneys fees as this is not a case of unlawful withholding of wages.
WHEREFORE, premises considered, the appealed decision is modified by deleting the award of attorneys fees. In all
other respect, the same is affirmed.
SO ORDERED.[4]
LUZMARTs motion for reconsideration[5] was denied hence, this petition wherein LUZMART claims that the
NLRC committed grave abuse of discretion in holding that LACSON was illegally dismissed.
In support of its petition, LUZMART claims that LACSON was not dismissed but was merely suspended as shown
by the March 31, 1993 memorandum.[6] His suspension was a consequence of the imposition of disciplinary measures
on him as fighting within the company premises constitutes serious misconduct and disorderly behavior. The fact that
LUZMART did not immediately suspend him after the fighting incident does not establish that he was dismissed from
his employment as there is no law which requires an employer to immediately rule on any infraction under investigation
after the filing of the explanation of the person under investigation. Neither is LACSON entitled to backwages nor
separation pay as these are only granted to employees who have been illegally dismissed from work and not to
employees like LACSON who abandoned his employment as he failed to report to work from February 15, 1993 to
March 31, 1993.[7]
We resolve to affirm the judgment of the NLRC.
LUZMARTs claim that LACSON was merely suspended and was still employed by LUZMART does not convince
us that LACSON was not dismissed from his employment. Said claim was a mere afterthought to preempt or thwart the
impending illegal dismissal case filed by LACSON against LUZMART. As found by the labor arbiter, LACSONs
failure to report to work was due to LUZMARTs refusal to admit him back. In fact, LUZMART told him to go on
vacation or to look for other work.[8]
LACSONs dismissal is clearly established by the following chronology of events: The mauling incident occurred
on January 28, 1993. LACSON submitted his written explanation of the event on February 1, 1993. On February 4,
1993, LACSON attempted to report for work but LUZMART refused to admit him. On February 11, 1993, LACSON
filed an action for illegal dismissal with the NLRC.[9]On April 13, 1993, LUZMART sent LACSON the memorandum
ordering LACSONs suspension dated on March 31, 1993. By this time, LUZMART already knew of the pending illegal
dismissal case against it as it was already directed by the NLRC to submit its position paper on April 5,
1993. LUZMARTs reliance on the March 31, 1993 memorandum[10] and the February 1-15, 1993 payroll[11] to prove
that LACSON was merely suspended is therefore unavailing. The March 31, 1993 memorandum is at most self-serving;
a ploy to cover up the dismissal of LACSON since this was issued after LUZMART had knowledge of the illegal
dismissal case filed against it by LACSON on February 11, 1993. Likewise, the veracity of the February 1-15, 1993
payroll that purportedly shows that LACSON was included in LUZMARTs payroll is of doubtful probative value. First
of all, it does not contain a certification by Charito Fernandez at its back page, unlike the other payrolls[12] attached as
annexes to LUZMARTs petition. Secondly, said payroll does not contain the signatures of the other employees as proof
that they received their salaries for the said period. Given these circumstances, both documents appear to have been
prepared in contemplation of the pending illegal dismissal case filed against LUZMART.
The contention that LACSON abandoned his employment is also without merit. Mere absence or failure to report
for work, after notice to return, is not enough to amount to such abandonment.[13] For a valid finding of abandonment,
two factors must be present, viz; (1) the failure to report for work or absence without valid or justifiable reason; and (2) a
clear intention to sever the employer-employee relationship,[14] with the second element as the more determinative
factor being manifested by some overt acts.[15] There must be a concurrence of the intention to abandon and some overt
acts from which an employee may be deduced as having no more intention to work.[16] Such intent to discontinue the
employment must be shown by clear proof that it was deliberate and unjustified.[17]
LACSONs absence from work was not without a valid reason. It was petitioner who did not allow him to work and
in fact told him to go on vacation or to look for other work. This is tantamount to a constructive dismissal which is
defined as a quitting because continued employment is rendered impossible, unreasonable or unlikely; as an offer
involving a demotion in rank and diminution in pay[18]Since LACSON was denied entry into his workplace, it was
impossible for him to return to work. It would be unjust to allow herein petitioners to claim as a ground for abandonment
a situation which they themselves had brought about.[19] Moreover, LACSONs filing of the complaint for illegal
dismissal on February 11, 1993, or seven days after his alleged abandonment, negates said charge. It is highly illogical
for an employee to abandon his employment and thereafter file a complaint for illegal dismissal.[20]
We also do not agree with LUZMART that LACSON gave just cause for the imposition of disciplinary measures
upon him. Although fighting within company premises may constitute serious misconduct under Article 282[21] of the

Labor Code and may be a just cause to terminate ones employment[22], every fight within company premises in which
an employee is involved would not warrant his dismissal. This is especially true when the employee concerned did not
instigate the fight and was in fact the victim who was constrained to defend himself. In the present case, it appears that
LACSON was assaulted by Julius Viray (VIRAY), a co-employee, after they were questioned about missing diesel
fuel. LACSON attempted to avoid the conflict since VIRAY was intoxicated but VIRAY followed him and after an
exchange of words, VIRAY punched him while saying Papatayin Kita (I will kill you). After being punched a second
time, LACSON punched back. He thereafter ran towards the dressing plant after his companion, a certain DANNY, told
him to run. VIRAY was persistent and followed LACSON and continued delivering punches at him. LACSON ran
away for a second time but VIRAY still pursued him and even armed himself with a lead pipe. LACSON sustained
wounds on his head and forehead due to VIRAYs use of the lead pipe. The Medico-Legal Certificate[23] issued by the
Gov. Teofilo Sison Memorial Hospital corroborates LACSONs injuries. Given the above circumstances, it is not
difficult to understand why LACSON had to defend himself.
Even assuming that there was just cause to dismiss LACSON, strict compliance by the employer with the demands
of both procedural and substantive due process is a condition sine qua non for the termination to be declared valid. The
law requires that the employer must furnish the worker sought to be dismissed with two written notices before
termination of employment can be legally effected:
1. notice which apprises the employee of the particular acts or omissions for which his dismissal is sought; and
2. the subsequent notice which informs the employee of the employers decision to dismiss him.[24]
It is unclear whether LUZMART complied with the first required written notice; apparently, LACSON was able to
give his account of the fight. However, even assuming that LUZMART complied with the first written notice i.e. the
charge against LACSON with fighting within company premises, the evidence fails to show compliance with the second
notice requirement; to inform LACSON of the decision to dismiss him. Such failure to comply with said requirements
taints LACSONs dismissal with illegality.
An illegally dismissed employee is entitled to 1) either reinstatement or separation pay if reinstatement is no longer
viable, and 2) backwages.[25] In the present case, LACSON is entitled to be reinstated, as there is no evidence to show
that reinstatement is no longer possible considering LUZMARTs position in this appeal is that LACSON was never
dismissed but merely suspended. He is also entitled to backwages computed from the time of illegal dismissal, in this
case on February 4, 1993[26] (not February 1, 1993 as found by the NLRC) up to the time of actual reinstatement,
without qualification or deduction[27]
WHEREFORE, the assailed decision of the NLRC is AFFIRMED and the instant petition is hereby DISMISSED
with the MODIFICATION that LUZMART reinstate LACSON to his former position and pay him backwages computed
from the date of illegal dismissal on February 4, 1993 up to the time of actual reinstatement.
No pronouncement as to costs.
SO ORDERED.
Melo, (Chairman), Vitug, Panganiban, and Purisima, JJ., concur.

JOSAN,
JPS,
SANTIAGO
CARGO
MOVERS, and MARY GRACE S. PARUNGAO,
Petitioners,

G.R. No. 190794

Present:
CARPIO, J., Chairperson,
VILLARAMA,
PEREZ,
SERENO, and
REYES, JJ.

versus
EDUARDO RAMOS ADUNA,
Respondent.

Promulgated:
February 22, 2012

x-------------------------------------------------- x
DECISION
SERENO, J.:
Before the Court is a Petition filed under Rule 45 of the Rules of Court, assailing the 21 October 2009 Decision and 16
December 2009 Resolution of the Court of Appeals (CA).[1] The Petition involves a Complaint for illegal dismissal and
nonpayment of employment benefits filed by respondent Eduardo Ramos Aduna (Aduna) against petitioners
JO-SAN Trucking Corporation, Santiago Cargo Movers, Inc., JPS Santiago Cargo Movers, Inc., and Mary Grace S.
Parungao (Parungao).
Facts
Petitioners are engaged in the trucking business under the sole proprietorship of Parungao,[2] their president-manager.
Sometime in January 2001, petitioners hired Aduna as a delivery truck driver. He was tasked to make deliveries of
various ingredients used in the production of poultry feeds. His payment was on a per trip basis, the amount of which
depended on the length of the trip or the distance to the point of destination.
The factual circumstances surrounding the case are contentious.
Petitioners narrate that on the morning of 5 December 2005, Parungao told Aduna to come to work later in the day to
make deliveries. When he reported for work a little before 5 p.m. that afternoon, Parungao noticed that he was drunk. She
then advised him not to make deliveries anymore on account of his inebriated condition. Allegedly, respondent reacted
discourteously by hurling invectives at her. He purportedly uttered, Hindi lang sa inyo makakapagtrabaho dahil
maraming kompanya, after which he threw out the keys of the vehicles assigned to him and stormed out of the office.
On his way out, he met a co-employee, Raymond dela Cruz (Dela Cruz). The two had a confrontation within company
premises, which eventually led to respondents punching Dela Cruz several times.
Aduna did not report for work until about 50 days from the date of the incident. On 24 January 2006, when he returned to
the office, he allegedly informed a certain Maria Agnes del Castillo that he no longer wished to continue working with
petitioners. He then purportedly asked for a certificate of employment, which he would use in applying for a new job.
Thus, petitioners posit that they did not terminate him as it was actually respondent who had refused to work. He no
longer worked for petitioners thereafter.
Respondent, on the other hand, denies being drunk when he went to work. According to him, he only had a bottle
of beer early that day. He also rejects the allegation that he hurled invectives at Parungao, as he had never been instructed
to cease carrying out his delivery assignments in the first place. He also denies punching Dela Cruz, explaining that they
simply had a misunderstanding. Supposedly, Dela Cruz was just displeased with how the new driver, whom Aduna had
recommended, was being treated favorably by petitioners. Respondent then alludes to the police blotter of Dela Cruz,
who only mentioned being elbowed by Aduna. Respondent then narrates that after the incident of 5 December 2005, he
was told to lie low until further notice in order to set an example to other employees. Despite his objections, he
eventually acceded to the instruction.
Thereafter, respondent claims that he was no longer given any delivery assignments and was even prevented from
entering company premises. He argues that petitioner voluntarily issued to him a Certificate of Employment without his

asking, and that he was told to look for work for the time being. He thus contends that he did not abandon his job.
Consequently, he filed a Complaint for illegal dismissal and nonpayment of overtime, holiday, 13 th month, and service
incentive leave pays.
Findings of the Labor Arbiter
The labor arbiter (LA) ruled that there was no basis to hold petitioners liable for illegal dismissal. Indeed, he found
that the confrontation between respondent and Dela Cruz, which happened within company premises, was tantamount to
a just cause for dismissal. However, he also found that there was no evidence to show that respondent had been
terminated verbally or in writing. The LA gave credence to the assertion of petitioner that it was Aduna who was no
longer interested in returning to work; respondent was already contemplating finding another job, as evidenced by his
request for the issuance of a certificate of employment. Consequently, the LA ruled that respondents failure to report for
work may be considered abandonment, which in turn is a valid ground for dismissal.[3]
Findings of the National Labor Relations Commission
The National Labor Relations Commission (NLRC) reversed the LAs finding and ruled that respondent had been
illegally dismissed. According to the NLRC, there was no showing that petitioners exerted efforts to question the
absences of respondent. They did not require him to return to work, which could have enabled them to determine with
certainty whether he really wanted to cease working for them. The NLRC pronounced that it must be clearly established
that there was deliberate and unjustified refusal on the part of the employee to return to work through a manifestation of a
clear intention to abandon his employment.
Petitioners were found to have failed to discharge this burden. They relied heavily on the information allegedly given by
their company secretary that Aduna was no longer interested in the job. The NLRC took note of the absence of an
affidavit from the secretary confirming the actual statement relayed to her by respondent. On the contrary, the
commission viewed the request for a certificate of employment as respondents way of ascertaining his actual status after
he was not recalled for some time. The NLRC admitted as fact that petitioners told respondent to lie low and to wait
for further notice; however, no such notice was given to him. He was simply eased out of his job. The Commission
reasoned that it was difficult to believe that a worker would forgo his job simply by abandoning it, without any
alternative source of income or prospect of another employment. Thus, according to the NLRC, the continued and
prolonged unemployment was unreasonable, inconvenient, prejudicial to respondent, and can be equated with
constructive dismissal.[4]

Findings of the Court of Appeals

The CA affirmed the Decision and the Resolution of the NLRC. It ruled that respondents failure to come to work
for 50 days was not indicative of his intention to discontinue employment. According to the appellate court, he did not
report for work, as he was told to lie low and to wait for further notice. It reasoned that, if indeed he had been absent
for such a long period of time, it was implausible for petitioners not to even exert any effort to call his attention,
considering that habitual absenteeism is a just cause for dismissal. Neither was there any order from petitioners requiring
him to return to work. It pointed out that a company is expected to call the attention of an employee to any undesirable
act or omission within a reasonable time. Failure of petitioners to take any disciplinary action against respondent for his
alleged absences undermined their claim that these absences were overt acts of abandonment.[5] The court also held that
Adunas request for a certificate of employment did not, ipso facto, equate with abandonment. The CA ruled that
petitioners failed to establish that respondent had a clear intention to abandon his work. Consequently, it found that he
had been illegally dismissed. The CA later on denied petitioners Motion for Reconsideration. Hence this Petition for

Review on Certiorari.
Issue
The sole issue in this case is whether respondent was illegally dismissed.
Discussion
We rule in the affirmative.
Abandonment is a matter of intention and cannot lightly be presumed from certain equivocal acts, especially during times
of hardship.[6] Thus, we have ruled in a series of cases that there are two elements that must concur in order for an act to
constitute abandonment: (1) failure to report for work or absence without valid or justifiable reason; and (2) a clear
intention to sever the employer-employee relationship.[7] The second element is the more determinative factor, which
must be manifested by some overt acts.[8] Mere absence or failure to report for work does not, ipso facto, amount to
abandonment of work.[9] To prove abandonment, the employer must show that the employee deliberately and
unjustifiably refused to resume his employment without any intention of returning.[10]
The NLRC and the CA found that the true reason why respondent did not report for work for about 50 days was that he
had been told by petitioners to lie low. This is a finding of fact, which we shall no longer disturb. Thus, when
respondent realized that he was no longer going to receive work assignments, he wasted no time in filing a case for
illegal dismissal against petitioners. Employees who take steps to protest their dismissal cannot logically be said to have
abandoned their work.[11] A charge of abandonment is totally inconsistent with the immediate filing of a complaint for
illegal dismissal.[12] The filing thereof is proof enough of ones desire to return to work, thus negating any suggestion of
abandonment.[13]
Respondent must therefore be deemed to have been constructively dismissed. There is constructive dismissal when
continued employment is rendered impossible, unreasonable, or unlikely.[14] In this case, although Aduna agreed to lie
low because of the incident, it became clear that petitioners no longer had the intention to give him future assignments.
In fact, they already deemed the issuance of the Certificate of Employment as a sign of abandonment of work. The
continued failure of petitioners to offer him a new assignment makes the former liable for constructive dismissal.
[15] Clearly, the instruction to temporarily lie low was meant to be for a permanent cessation from work. With the
absence of any proof of dire exigency that would justify the failure to give further assignments, the only logical
conclusion is that respondent was constructively dismissed.[16]
In an illegal dismissal case, the onus probandi rests on the employer, who has to prove that the dismissal of an employee
was for a valid cause. [17] Since petitioners based their defense on abandonment by respondent, it is likewise incumbent
upon them, as employers, to prove that he clearly, voluntarily, and intentionally abandoned his work.[18]As previously
discussed, it is clear from the evidence on record that petitioners failed to discharge this burden.[19] As we have
consistently affirmed, if the evidence presented by the employer and the employee are in equipoise, the scales of justice
must be tilted in favor of the latter.[20] Accordingly, the finding of illegal dismissal must be upheld.[21]
Article 279 of the Labor Code provides that an employee who is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and other privileges; to his full back wages, inclusive of allowances; and to
other applicable benefits or their monetary equivalent computed from the time compensation was withheld up to the time
of actual reinstatement.[22] However, in recognition of the strained relations between petitioners and respondent, the
former are instead liable to give separation pay as found by the CA.
WHEREFORE the Petition is DENIED. The 21 October 2009 Decision and 16 December 2009 Resolution of the Court
of Appeals in CA-G.R. SP No. 108996 are herebyAFFIRMED.
SO ORDERED.