FIRST DIVISION
[G.R. No. 199857. February 20, 2019.]
ALAMO TRANSPORT LEASING, INC. AND/OR MR. RONNIE CLAVANO, petitioners, vs.RUSSEL D. PACIA, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated February 20, 2019which reads as follows:
"G.R. No. 199857 (Alamo Transport Leasing, Inc. and/or Mr. Ronnie Clavano v. Russel D. Pacia). — This is a petition for review on certiorari1 seeking to set aside the Decision 2 dated June 22, 2011 and the Resolution 3 dated December 23, 2011 of the Court of Appeals (CA) in CA-G.R. SP No. 111773. The CA affirmed the Decision 4 dated May 26, 2009 and Resolution 5 dated October 12, 2009 of the National Labor Relations Commission (NLRC) in NLRC LAC Case No. 07-002616-08 finding Russel D. Pacia (respondent) illegally dismissed and directing Alamo Transport Leasing, Inc. and/or Mr. Ronnie Clavano (petitioners) to reinstate respondent and to pay backwages, attorney's fees and damages.
The case stemmed from the complaint for illegal dismissal 6 filed by respondent against petitioner Alamo Transport, a corporation engaged in airport taxi transport services. In his position paper, 7 respondent alleged that he started working for petitioners in 1999 as driver/dispatcher and resigned in 2000. In 2003, petitioners rehired him as sales representative/rental agent and, in May 2005, respondent was promoted to area manager. In 2006, petitioners downgraded his designation to monitoring dispatcher. In 2007, respondent was promoted to senior monitoring dispatcher. Upon his appointment to his new position, respondent was given a personnel action notice 8 indicating that he was hired only on March 5, 2007 and that he was under probationary employment. 9
On September 19, 2007, petitioners issued a memorandum 10 instructing all dispatchers to deny respondent entry and access to petitioners' offices. In October 2007, respondent was not issued a time card. As a result, he twice wrote Atty. Leandro P. Castello, the company's senior manager, to seek clarification on the matter, but he did not receive a response. 11 Thus, respondent filed before the NLRC a complaint for illegal dismissal, underpayment and non-payment of salary/wages and ECOLA, with prayer for reinstatement. 12
Meanwhile, petitioners alleged in their position paper 13 that respondent was hired only on a probationary basis as senior monitoring dispatcher; sometime in the second week of September 2007, Alamo Transport decided to abolish the position of senior monitoring dispatcher in the Ninoy Aquino International Airport (NAIA) as a gesture of cooperation with the airport authority to discourage the proliferation of unnecessary dispatchers who are the source of illegal activities, such as overpricing, at NAIA; 14 respondent was supposed to be transferred to the Accounting Department as staff encoder with no salary diminution; respondent never gave his answer to their offer but simply did not report to work anymore. 15 SDAaTC
On May 30, 2008, the Labor Arbiter (LA) dismissed the complaint for lack of merit and held that respondent was not constructively dismissed. 16 Instead, the LA found that it was respondent who ignored petitioners' offer of a transfer to the Accounting Department after his position of senior monitoring dispatcher was abolished. 17
On May 26, 2009, the NLRC granted respondent's appeal. The dispositive portion of the NLRC Decision reads:
WHEREFORE, premises considered, judgment is hereby [rendered] finding the appeal impressed with merit. The decision of the Labor Arbiter dated May 30, 2008 is hereby VACATED and SET ASIDE. Accordingly, respondents-appellees are hereby:
1. Ordered to immediately reinstate complainant-appellant to his former position (Area Manager) without loss of seniority rights;
2. Found liable, jointly and severally, to pay complainant-appellant the amount of P244,337.21 corresponding to his backwages;
3. Pay 10% of the abovementioned aggregate amount as attorney's fees;
4. Pay him P10,000.00 as moral damages and P10,000.00 as exemplary damages.
SO ORDERED. 18
The NLRC also denied petitioners' motion for reconsideration. 19
Petitioners filed a special civil action for certiorari under Rule 65 of the Rules of Court on the ground that the NLRC committed grave abuse of discretion. Their petition, however, was dismissed by the CA on June 22, 2011, for lack of merit:
WHEREFORE, premises considered, the instant Petition is DISMISSED for lack of merit. Accordingly, the challenged Decision dated 26 May 2009 and Resolution dated 12 October 2009 of the NLRC STAND.
SO ORDERED. 20
Petitioners' motion for reconsideration was denied by the CA on December 23, 2011; 21 hence, this petition.
Petitioners argue that respondent abandoned his job, which negates his claim of illegal dismissal. 22 They also question the findings of the CA and NLRC that respondent managed to report for work for the entire month of September 2007 as the memorandum dated September 19, 2007 addressed to all dispatchers shows that respondent was not allowed entry and access to all Alamo airport offices. Considering these circumstances, petitioners claimed that respondent did not actually render work during this period. They assert that respondent might have unlawfully punched-in his time card without the knowledge of Alamo Transport. 23
We deny the petition.
We emphasize that in this petition, We only examine whether the CA correctly determined the presence or the absence of grave abuse of discretion in the NLRC Decision. We do not assess whether the NLRC Decision, on the merits of the case, was correct. In other words, We have to be keenly aware that the CA undertook a Rule 65 review, not a review on appeal. 24 acEHCD
More, our jurisdiction in a petition filed under Rule 45 is limited to resolving only questions of law. A question of law arises when the doubt or controversy concerns the correct application of law or jurisprudence to a certain set of facts. In contrast, a question of fact exists when the doubt or controversy concerns the truth or falsehood of facts. 25 The test of whether a question is one of law or fact is not the appellation given to such question by the party raising the same. It is whether the appellate court can determine the issue raised without reviewing or evaluating the evidence and would only limit itself to the inquiry of whether the law was properly applied given the facts and supporting evidence. 26
In this case, the issues petitioners raise are mainly questions of fact: whether there was an offer to transfer made to respondent; whether respondent abandoned his work; or whether petitioners illegally dismissed respondent. These are questions of fact which require the reception and evaluation of evidence. For this reason, We deny the petition outright.
Even if We disregard this error, however, We would still deny the petition as We find that the CA correctly affirmed the NLRC. The NLRC's conclusion that respondent did not abandon his work, but was instead illegally dismissed, is supported by substantial evidence.
As borne by the records, petitioners unilaterally and arbitrarily abolished respondent's position as senior monitoring dispatcher. They also prevented him from entering the company's offices through the issuance of the September 19, 2007 memorandum instructing all dispatchers to deny respondent entry and access to Alamo Transport's offices. They likewise refused to issue his time card for October 2007, preventing him from rendering service at their office.
On the other hand, petitioners failed to prove that their abolition of respondent's position was justified and a valid exercise of management prerogative. While management is free to regulate, according to its own discretion and judgment, all aspects of employment, the exercise of management prerogative is not absolute and must be in good faith and with due regard to the rights of labor. 27 Petitioners were unable to present any evidence that the airport authorities required its concessionaires to abolish the position of monitoring dispatcher. Petitioners likewise failed to prove that they offered to transfer respondent to the Accounting Department. Even if there was indeed an offer of transfer, petitioners likewise failed to show that such transfer would not result to respondent's demotion in rank or a diminution in pay, or both.
We likewise find no basis in petitioners' contention that respondent abandoned his work after refusing to transfer to the Accounting Department as a staff encoder.
Abandonment is a form of neglect of duty, one of the just causes for an employer to terminate an employee. 28 Two elements must be present to constitute abandonment: (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, with the second element as the more determinative factor being manifested by some overt acts. 29 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. 30
Furthermore, it is well-settled that an employee who takes steps to protest his dismissal cannot logically be said to have abandoned his work. The filing by an employee of a complaint for illegal dismissal with a prayer for reinstatement negates the employer's charge of abandonment and is considered proof enough of the employee's desire to return to work. 31
Thus, to prove abandonment, the burden rests on the employer to establish by substantial evidence the employee's lack of interest to continue his employment. It is incumbent upon the employer to rebut the employee's seeming intention to resume work as shown by his prayer for reinstatement. 32
Here, petitioners failed to present evidence of respondent's abandonment of his work. Respondent did not fail to report for work; he was prevented from reporting to work. Petitioners themselves admitted that they abolished respondent's position and issued the September 19, 2007 memorandum denying him entry and access to their offices. Moreover, there is no evidence supporting petitioners' claim that they offered to transfer respondent to another department, which offer respondent ignored. SDHTEC
Likewise, the October 9 and 15, 2007 letters petitioners sent to respondent directing him to return to work are insufficient to prove abandonment. Mere absence or failure to report for work, even after a notice to return to work has been served, is not enough to amount to an abandonment of employment. 33
The employer has the burden of proving that an employee's dismissal from service was for a just or authorized cause. 34 Having failed to clearly establish that respondent abandoned his work, We deny the petition and affirm the CA's finding affirming the NLRC's decision that respondent was illegally dismissed from employment.
As the fact of illegal dismissal has already been established, respondent is entitled to two separate and distinct reliefs: (1) backwages; and (2) reinstatement or the payment of separation pay if the reinstatement is no longer viable. 35 The award of one does not bar the other. 36
As to backwages, "the payment of backwages is a form of relief that restores the income that was lost by reason of the unlawful dismissal." 37
Meanwhile, reinstatement is "a restoration to a state from which one has been removed or separated." 38 However, under the doctrine of strained relations, the payment of separation pay is considered an acceptable alternative to reinstatement when the latter option is no longer desirable or viable. 39 On one hand, such payment liberates the employee from what could be a highly oppressive work environment. On the other hand, it releases the employer from the grossly unpalatable obligation of maintaining in its employ a worker it could no longer trust. 40
The Court has ruled that reinstatement is no longer viable where, among others, the relations between the employer and the employee have been so severely strained, that it is not in the best interest of the parties, nor is it advisable or practical to order reinstatement, or where the employee decides not to be reinstated. 41 The computation of separation pay in lieu of reinstatement likewise includes the period for which backwages were awarded. 42
In this case, We hold that respondent is entitled to separation pay in lieu of reinstatement on the ground of strained relations as a result of the filing of the illegal dismissal case. On the one hand, respondent claimed that petitioners abolished his position and denied him entry and access to their offices, preventing him from rendering service. Petitioners, on the other hand, accused respondent of deliberately refusing to resume his employment with petitioners, unlawfully punching in his time card and coming to Court with unclean hands. The foregoing circumstances show a breakdown of trust such that reinstatement of respondent as a dispatcher for petitioner would be imprudent and would hardly promote the best interest of the parties.
In sum, respondent is entitled to backwages computed from the time compensation was withheld up to the date of finality of this Resolution, and separation pay, in lieu of reinstatement, in the amount of one (1) month salary for every year of service, with a fraction of at least six (6) months to be considered as one (1) whole year, to be computed from the date of his employment contract until the finality of this Resolution. 43
We, however, delete the award of moral and exemplary damages. Moral damages are recoverable where the dismissal of the employee was attended by bad faith or fraud or constituted an act oppressive to labor, or was done in a manner contrary to morals, good customs, or public policy. Likewise, exemplary damages may be awarded if the dismissal was effected in a wanton, oppressive or malevolent manner. 44 While the NLRC made a general statement that the conditions for the award of moral and exemplary damages exist, We find that no evidence thereof was presented in this case.
WHEREFORE, the petition is DENIED. The June 22, 2011 Decision and the December 23, 2011 Resolution of the Court of Appeals in CA-G.R. S.P. No. 111773 are AFFIRMED with MODIFICATIONS, thus:
1. Petitioners are ordered to pay respondent his backwages from the time his compensation was withheld from him until the finality of this Resolution; HESIcT
2. Instead of reinstatement, petitioners are ordered to pay respondent separation pay equivalent to one (1) month salary for every year of service, with a fraction of at least six (6) months to be considered as one (1) whole year, from the date of his employment contract until the finality of this Resolution;
3. The award of 10% of the above aggregate amount as attorney's fees is affirmed;
4. The award of moral and exemplary damages is deleted; and
5. Legal interest of 6% per annum of the total monetary awards counted from the finality of this Resolution until fully paid.
The Labor Arbiter is hereby ordered to make another re-computation according to the above directives.
SO ORDERED."
Very truly yours,
(SGD.) LIBRADA C. BUENADivision Clerk of Court
Footnotes
1.Rollo, pp. 10-30.
2.Id. at 33-44; penned by Associate Justice Jane Aurora C. Lantion and concurred in by Presiding Justice Andres B. Reyes, Jr. (now a Member of this Court) and Associate Justice Japar B. Dimaampao.
3.Id. at 57-58.
4.Id. at 81-87.
5.Id. at 112-114.
6.Id. at 116-117.
7.Id. at 141-152.
8.Id. at 156.
9.Id. at 143.
10.Id. at 157.
11.Id. at 158-159.
12.Supra note 6.
13.Rollo, pp. 118-131.
14.Id. at 122-123.
15.Id. at 123-124.
16.Id. at 200-212.
17.Id. at 210.
18.Id. at 86-87.
19.Supra note 5.
20.Rollo, pp. 43-44.
21.Supra note 3.
22.Rollo, p. 17.
23.Id. at 18.
24.Montoya v. Transmed Manila Corporation, G.R. No. 183329, August 27, 2009, 597 SCRA 334, 343.
25.Diamond Taxi v. Llamas, Jr., G.R. No. 190724, March 12, 2014, 719 SCRA 10, 20. Citation omitted.
26.Mandaue Realty & Resources Corporation v. Court of Appeals, G.R. No. 185082, November 28, 2016, 810 SCRA 447, 456-457. Citation omitted.
27. See Intec Cebu, Inc. v. Court of Appeals, G.R. No. 189851, June 22, 2016, 794 SCRA 266, 273-274.
28.Fernandez v. Newfield Staff Solutions, Inc., G.R. No. 201979, July 10, 2013, 701 SCRA 109, 120. Citation omitted.
29.Id.; See also Tatel v. JLFP Investigation and Security Agency, Inc., G.R. No. 206942, December 9, 2015, 777 SCRA 347; MZR Industries v. Colambot, G.R. No. 179001, August 28, 2013, 704 SCRA 150.
30.W.M. Manufacturing, Inc. v. Dalag, G.R. No. 209418, December 7, 2015, 776 SCRA 258, 291-292, citing MZR Industries v. Colambot, supra.
31. See Manarpiis v. Texan Philippines, Inc., G.R. No. 197011, January 28, 2015, 748 SCRA 511, 528.
32. See W.M. Manufacturing, Inc. v. Dalag, supra at 292.
33. Claudia's Kitchen, Inc. v. Tanguin, G.R. No. 221096, June 28, 2017, 828 SCRA 397, 409. Citation omitted.
34. Demex Rattancraft, Inc. v. Leron, G.R. No. 204288, November 8, 2017.
35. Fabricator Philippines, Inc. v. Estolas, G.R. Nos. 224308-09, September 27, 2017. Citation omitted.
36. ICT Marketing Services, Inc. v. Sales, G.R. No. 202090, September 9, 2015, 770 SCRA 286, 316.
37. Fabricator Philippines, Inc. v. Estolas, supra.
38. Id.
39. Id.; TPG Corporation (formerly The Professional Group Plans, Inc.) v. Pinas, G.R. No. 189714, January 25, 2017, 815 SCRA 487, 497. Citation omitted.
40. Fabricator Philippines, Inc. v. Estolas, supra.
41. TPG Corporation (formerly The Professional Group Plans, Inc.) v. Pinas, supra note 39.
42. Id. at 498; Sagales v. Rustan's Commercial Corporation, G.R. No. 166554, November 27, 2008, 572 SCRA 89, 106.
43. See C.I.C.M Mission Seminaries (Maryhurst, Maryheights, Maryshore and Maryhill) School of Theology, Inc. v. Perez, G.R. No. 220506, January 18, 2017, 815 SCRA 35, 44.
44. Philippine Spring Water Resources, Inc. v. Court of Appeals, G.R. No. 205278, June 11, 2014, 726 SCRA 343, 363-364. Citation omitted.