Professional Documents
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COURT OF APPEALS
MANILA
MEMORANDUM
PRIVATE RESPONDENT, by counsel, to this Honorable Court, in compliance with the
Resolution promulgated on 28 February 2010, a copy of which was received on 1 March 2010,
Elevated to this Honorable Court on a Petition for Certiorari under Rule 65 is the decision of
the National Labor Relations Commission (“NLRC” for brevity), xxxxx Division, promulgated on 1
For the appreciation of this Honorable Court, the private respondent reproduces herein the
The instant case stemmed from the Complaint of ABC against the petitioners for illegal
suspension, constructive dismissal, non-payment of 13th month pay and separation pay.147
The private respondent was a regular and permanent employee of the petitioner
corporation. He was hired as a Warehouse Stockman on 1 January 2000, and was assigned in
xxxxxxxxxx. His latest salary was Three Hundred Fifty Pesos (P350.00) per day, including
147
Labor Arbiter’s Decision, p. 1.
Sometime in the last week of October 2006, stocks of HP ink were reportedly missing.
Thus, on 3 November 2006, the private respondent was handed a notice by Mr. YY placing him
The following day, the private respondent went to see petitioner ZZ at the latter’s office in
lxx. However, the guard on duty refused him admittance. It was even relayed to him by the
Until the filing of the complaint, no return-to-work order was sent to the private respondent.
For its part, the petitioner explained that on several occasions, there were pilferages in its
warehouse, and because management could not pinpoint who the real culprit(s) is/are, they
Sometime in September and October of 2006, management found out that the private
respondent was instrumental in the pilferages. They, thus, requested for an investigation by the
National Bureau of Investigation (“NBI” for brevity). The private respondent failed to appear during
the same. The petitioner then posted a notice in the bulletin board of the company’s office
requesting him to answer and be present during the investigation to be conducted by the company.
He was further advised that at his option, he may bring a lawyer of his own choice.
148
Admitted by the petitioners in the Respondents’ Reply, p. 1.
149
Complainant’s Position Paper, pp. 1-2.
security guards saw him loitering around the premises. Rather than dismiss him, his suspension
However, the private respondent filed the instant complaint on 25 January 2007. The truth
of the matter is that he went on “Absence Without Official Leave.” Hence, the loss of trust and
confidence of the petitioners towards the private respondent for his repetitive misdemeanor.
When the labor complaint was filed, it was then that the private respondent was barred from
Soon thereafter, the parties submitted their respective position papers151 and replies.152
Additionally, the private respondent filed his rejoinder.153 On 1 January 2008, the Labor Arbiter
Aggrieved, the private respondent filed a Notice and Memorandum of Partial Appeal.155 On
1 January 2009, the National Labor Relations Commission, xxxxx Division (“NLRC” for brevity),
150
Respondents’ Position Paper, pp. 2-3.
151
Annexes “C” and “D” of the Petition.
152
Copy of Complainant’s Reply attached as Annex “1” of the Comment; Duplicate original copy of
Respondent’s Reply attached as Annex “2” of the Comment.
153
Duplicate original copy attached as Annex “3” of the Comment.
154
Annex “E” of the Petition.
155
Annex “F” of the Petition.
156
Annex “B” of the Petition.
A Motion for Reconsideration157 was thereafter filed by the petitioners, which was denied by
Hence, the petitioners filed the instant Petition for Certiorari under Rule 65 of the Revised
I.
II.
III.
IV.
DISCUSSION
157
Annex “G” of the Petition.
158
Annex “A” of the Petition.
The petitioners expressed its disagreement with the NLRC’s action of passing upon the
issue of whether they were able to substantiate the charge of loss of trust and confidence. They
further argued that the private respondent was not dismissed on such ground, but he instead,
However, they may have forgotten that in their position paper, they presented no argument
other than the propriety of the private respondent’s termination due to loss of trust and
confidence,161 thereby endeavoring to justify such course of action. Not only that, the Labor
159
pp. 5-6.
160
Petition, pp. 10-11.
161
Respondents’ Position Paper, p. 3.
validating such ground for dismissal.163 The NLRC cannot be faulted in passing upon this matter
because, after all, it was mandated to review the factual and legal findings of the Labor Arbiter.
Moreover, the above-quoted ruling of the NLRC was precipitated by the following discussion
Clearly then, the NLRC’s pronouncement was taken in the wrong context. It did not decree
actual dismissal.
In challenging the NLRC’s ruling, the petitioners posit that it erroneously assumed the
instant case as one of actual dismissal, emphasizing that the private respondent alleged
constructive dismissal in his complaint, position paper and even on appeal.165 The petitioners’
stance is short of saying that the NLRC should limit its evaluation of the case only on the basis of
the private respondent’s allegation of constructive dismissal and cannot rule on actual dismissal
even if the factual circumstances are indicative of such. This would be extremely adverse to the
164
Private Respondent’s Notice and Memorandum of Partial Appeal, pp. 4-7.
165
Petition, pp. 7-9.
actually dismissed, what matters is that he was illegally dismissed. After all, the legal
consequences generated by these two (2) modes of dismissal are identical.166 In Mark Roche
International, et al. v. NLRC, et al.,167 where the dismissed employees lodged a constructive
dismissal case, and both the Labor Arbiter and the NLRC affirmed such mode of dismissal, the
As will be detailed hereunder, one fact remains – the private respondent was illegally
The petitioners’ allegation that the private respondent abandoned his job, as well as their
For one, they subjected themselves to glaring discrepancies which significantly diminished
their credibility.
While initially averring that the private respondent was barred only from the time the instant
case was filed,168 they subsequently admitted that he was barred to enter the company premises
simultaneous with his suspension.169 This discrepancy cannot be brushed aside, for it has a
bearing on whether the private respondent was dismissed prior to his complaint. Note that in
clarifying this issue,170 they merely subscribed to their second position, without offering any
166
Mariculum Mining Corporation v. Decorion, G.R. No. 158637, 12 April 2006.
167
G.R. No. 123825, 31 August 1999.
168
Respondents’ Position Paper, p. 2.
169
Respondents’ Reply, p. 3.
170
Herein petitioner’s Reply, p. 3.
directed to return to work.171 Hence, the “loss of trust and confidence”172 theory. Subsequently,
however, they averred that the private respondent was notified to return to work by mail, thereby
strengthening the angle of “abandonment.”173 This is more than just a suppletory allegation of fact,
as what the petitioners would like to impress upon this Honorable Court,174 but a total change of
theory.
In Building Care Corporation v. NLRC, et al.,175 the Honorable Supreme Court stamped
cases before the Labor Arbiter or the NLRC pursuant to Section 3, Rule I of the New Rules
of Procedure of the NLRC, defenses which are not raised either in a motion to dismiss or in
Second, their allegations were not backed up by corresponding proofs, which must have
171
Respondents’ Position Paper, pp. 1-2.
172
Ibid, p. 3.
173
Respondents’ Reply, pp. 2-3.
174
Supra note 24.
175
G.R. No. 94237, 26 February 1997.
176
PCL Shipping Philippines, Inc., et al. v. NLRC, et al., G.R. No. 153031, 14 December 2006.
the petitioners presented no proof of mailing and receipt of the said notice. They did not even
mention when the alleged mail was sent. Their bare allegation, therefore, cannot withstand the
private respondent’s categorical denial of having been furnished the same.178 The ruling of the
Honorable Supreme Court in Golden Thread Knitting Industries, Inc., et al. v. NLRC, et al.179 is,
“The NLRC sustained Cachucha that he did not abandon his work
considering that he seasonably filed a complaint for illegal dismissal
against petitioners on 16 July 1992 and positively disavowed any
notice to return to work allegedly sent to him by petitioners.
The NLRC is correct. For abandonment to exist, it is essential that
(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 to sever the employer-
employee relationship manifested by some overt acts. The
circumstance that Cachucha lost no time in filing a complaint for
illegal dismissal against petitioners on 16 July 1992 is
incompatible with the charge of abandonment and confirms in
fact that he was refused entry into the company premises on 6
July 1992.
Petitioners' allegation that they informed Cachucha's wife that
Cachucha must report to work immediately is unsubstantiated
and self-serving. The alleged notification through the
memorandum of 22 July 1992 has not been shown to have been
received by Cachucha. xxx xxx xxx.” (emphasis ours; citations
omitted)
In view of the foregoing, the petitioners’ allegation that the private respondent abandoned
What is more, if the private respondent indeed failed to comply with such return-to-work
directive, surely, his attention would have been called by the petitioners and his refusal reduced in
writing. The petitioners could not have taken such purported act lightly and pass over the same
without any warning, for it was already tantamount to insubordination or abandonment. The most
logical conclusion for such lack of documentary evidence is the falsity of the petitioners’ claim.
177
Respondents’ Reply, p. 3.
178
Complainants’ Rejoinder, p. 2.
179
G.R. No. 119157, 11 March 1999.
readily indicate that he abandoned his job. Labor jurisprudence, in fact, decrees the contrary view.
“A charge of abandonment is totally inconsistent with the immediate filing of a complaint for
illegal dismissal.”181
Incidentally, it must be noted that the petitioners, in their petition, no longer tried to make the
most out of the so-called return-to-work notice allegedly sent by mail. Instead, they capitalized on
the offer they made during the mandatory conciliation conference and thereafter.182 This only goes
to prove that their allegation of having sent a return-to-work order by mail is untrue. Besides, the
Similarly, the private respondent’s alleged refusal to attend the investigation remained to be
a bare allegation. As the said proceeding was already preparatory to dismissal, his refusal to
attend the same must have been put in writing, more so taking into account its effect in supposedly
As a matter of fact, as aptly noted by the NLRC, there remains no proof that there was an
Clearly, the petitioners’ averment that the private respondent precipitately filed the instant
case without waiting for the results of the NBI investigation184 fell on shaky ground.
All told, the undisputed facts are the following: (a) the private respondent was a regular and
permanent employee of the petitioner corporation; (b) sometime in the last week of October 2006,
stocks of HP ink were reportedly missing; (c) the private respondent turned out to be one of the
suspects; (d) on 3 November 2006, the private respondent was placed under preventive
suspension; and (e) there is no existing document proving that the private respondent was advised
Even if we are to limit the evaluation of the instant case on the theory of constructive
180
Supra note 24.
181
Hda. Dapdap I, et al. v. NLRC, et al., G.R. No. 120556, 26 January 1998.
182
Petition, p. 7.
183
NLRC’s Decision, p. 6.
184
Ibid, pp. 8-9.
persisted, it would be highly unfair for the private respondent to wait for the resolution of the same,
given that the period of his suspension already elapsed. Note that the private respondent filed the
instant case only on 25 January 2007, well beyond the additional period of suspension for two (2)
weeks / fifteen (15) days,185 which supposedly ended on 18 December 2006. As fully detailed
above, at the time of the filing of the complaint, there was as yet no offer to return to work.
Hence, the private respondent was constructively dismissed, for “preventive suspension
which lasts beyond the maximum period allowed by the Implementing Rules amounts to
constructive dismissal.”186
As a final note, it must be stressed that the petitioners were of the mistaken belief that in
constructive dismissal cases, the burden of proof shifts to the employee.187 This contradicts one of
the most basic tenets in labor law, for as plainly and positively declared by the Honorable Supreme
Court, “in cases of constructive dismissal, the burden of proof is on the employer to show
that the employee was dismissed for a valid and a just cause.”188 As thoroughly discussed, all
Later on conceding that the burden of proof in constructive dismissal cases is not shifted to
the employee, the petitioners, nonetheless, advanced that the private respondent should lay down
the basis of his constructive dismissal, such as, whether he was demoted or transferred.189 To
repeat, assuming that there was indeed an investigation which persisted, when the private
respondent filed the instant case on 25 January 2007, the additional period of suspension for two
(2) weeks / fifteen (15) days,190 which supposedly ended on 18 December 2006, already elapsed.
As fully detailed above, at the time of the filing of the complaint, there was as yet no offer to return
to work. This is already the basis of the complaint; hence, it became incumbent for the petitioners
185
Petition, p. 3; Respondents’ Reply, p. 3.
186
Mark Roche International, et al. v. NLRC, et al., supra note 21.
187
Petition, p. 8.
188
Emphasis ours; Suldao v. Cimech System Construction, Inc. and Engr. Labucay, G.R. No. 171392,
30 October 2006.
189
Herein petitioner’s Reply, p. 4.
190
Petition, p. 3; Respondents’ Reply, p. 3.
days.191 This is not only one of the many inconsistent postures of the petitioners, but also one of
those unsubstantiated.
judgment as is equivalent to lack of jurisdiction, or, in other words, where the power is
The NLRC’s decision is far from grave abuse of discretion warranting the issuance of a writ
of certiorari. On the contrary, it merely fulfilled its duty of protecting the interest of labor, for the
Even if the NLRC indeed erred in evaluating the case as one of actual dismissal (without
necessarily admitting so), the same only constitutes an error of judgment, as can be gleaned from
the Mark Roche International case.193 “Where the court has jurisdiction over the case, even
if its findings are not correct, its questioned acts would at most constitute errors of law and
Anyway, apart from the erroneous ruling, the petitioners failed to particularize acts of the
NLRC purportedly establishing grave abuse of discretion amounting to lack or excess of jurisdiction.
Under pain of being repetitive, be it actual or constructive dismissal, the factual milieu of the instant
191
Herein petitioner’s Reply, p. 4.
192
Cuison v. Court of Appeals, 289 SCRA 195
193
Supra note 21.
194
Lalican v. Vergara, et al., supra note 47.
it is well-settled that “the employer has to pay backwages as part of the price or penalty he
In view of the strained relations of the petitioners and the private respondent, the award of
PRAYER
the Petition for Issuance of a Writ of Certiorari be DENIED for utter lack of merit.
Private respondent prays for such other reliefs just and equitable under the premises.
Department of Justice
PUBLIC ATTORNEY’S OFFICE
DOJ Agencies Building,
NIA Road corner East Avenue,
1104 Diliman, Quezon City
Tel. Nos. 928-91-37/927-68-06
BY:
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Public Attorney IV
Roll No. xxxxx
IBP OR No. xxxxxx; 1/6/10
MCLE Compliance No. III-000xxxx; 1/20/10
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Public Attorney IV
Roll No. xxxxx
IBP OR No. xxxxx0; 1/4/10
MCLE Compliance No. III-000xxxx; 1/20/10
- and -
195
Labor Code of the Philippines Annotated by J.G. Chan, Volume II, pg. 615.
196
G.R. No. 107234, 24 August 1998.
EXPLANATION
(Pursuant to Sec. 11, Rule 13 of the 1997 Rules of Civil Procedure)
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Public Attorney II
Copy Furnished: