Briones v. Kleentech Industries Corp.

THIRD DIVISION

[G.R. No. 226765. February 28, 2018.]

AZENITH S. BRIONES, petitioner, vs. KLEENTECH INDUSTRIES CORP. AND FAYE JAMERO, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution dated February 28, 2018, which reads as follows:

"G.R. No. 226765 (Azenith S. Briones v. Kleentech Industries Corp. and Faye Jamero) — This petition for review on certiorari1 seeks to reverse and set aside the November 27, 2015 Decision 2 and August 19, 2016 Resolution 3 of the Court of Appeals (CA) in CA-G.R. SP No. 138118, which affirmed in toto the decision 4 and Resolution of the National Labor Relations Commission (NLRC), which, in turn, reversed and set aside the decision 5 of the Labor Arbiter (LA) in a complaint for illegal dismissal, non-payment of separation pay, illegal suspension, claims for moral and exemplary damages, and attorney's fees. EHaASD

The Antecedents

Kleentech Industries Corporation (Kleentech) is a corporation engaged in the business of janitorial and general building maintenance services with several clients within Metro Manila. Faye Jamero (Jamero), on the other hand, is the General Manager of the said corporation.

Petitioner Azenith S. Briones (petitioner) was hired by Kleentech sometime in February 2003, as a janitress and was assigned at EFCO Phil. Ltd. (EFCO) in Alabang, Muntinlupa City. She worked from Monday to Friday, from 8:00 o'clock in the morning to 5:00 o'clock in the afternoon with a salary of Four Hundred Twenty-Six Pesos (P426.00) a day.

In November 2011, petitioner was required to submit a medical certificate that she was fit to work, as a prerequisite for claiming her salary for the month. In order to comply with said directive, petitioner took a leave of absence on November 21, 2011. The following day, November 22, 2011, petitioner reported for work but Jamero told her to go home and not to report for three (3) days. After three days, petitioner reported for work, but Jamero demanded an explanation on why she took three days off without official leave. When petitioner failed to give an explanation, she was informed by Jamero of her suspension for two (2) weeks. Thereafter, petitioner reported back to work, but was advised to wait for a new assignment.

Despite consistent follow-ups for her next assignment, petitioner was always told to wait for further notice. She continued to be on floating status starting November 22, 2011. On February 15, 2013, petitioner filed a complaint for constructive dismissal alleging that for eight (8) years, she continuously worked for Kleentech but on November 22, 2011, the latter ceased to give her a new assignment without justifiable reason; that Kleentech's act of placing her on floating status for more than six (6) months was tantamount to dismissal from work. 6 DaIAcC

Kleentech, on the other hand, riposted that petitioner was not dismissed from work. It claimed that petitioner failed to submit the required renewal of medical evaluation and medical certificate which was due on November 5, 2011; and that it was only on November 21, 2011 that petitioner was able to submit the same.

Kleentech asserted that on November 23, 2011, Jamero received a frantic call from EFCO requesting for an immediate reliever of petitioner because she had not reported for five (5) days. Because petitioner did not file a leave of absence and she did not inform Jamero that she would be absent, Jamero was not able to send a reliever to EFCO. Kleentech claimed that EFCO reported that petitioner was already abusing their leniency; that it would no longer wait for petitioner to report back for work; that aside from always being late for work and leaving early, petitioner had a habit of just sending a text message whenever she would not be able to report for work; that Jamero called petitioner and asked her to report to the main office but she refused claiming that she would only be made to sign an AWOL form that would be used against her; 7 that on December 6, 2011, Jamero sent a letter-memo informing petitioner to report to the main office for immediate posting at Shore Solution located at G/F One World Building, McKinley Hills, Taguig City; that it was sent through registered mail to petitioner's last known address as provided in her 201 File but the same was marked "Return to Sender," "Unclaimed" after several attempts by the Post Office on December 7, 8, and 9, 2011; 8 that Kleentech denied petitioner's claim that she made follow-ups regarding her next assignment, and pointed out that if she indeed made such inquiries, she would have known of her new assignment at Shore Solution; that it denied liability on petitioner's money claims as it were all paid as supported by documentary evidence; 9 petitioner's claim for separation pay must fail for lack of basis, and that even if she was entitled thereto, her cash advances totalling Fourteen Thousand Pesos (P14,000.00) would be more than sufficient to cover the same.

The LA's Ruling

In a Decision 10 dated June 30, 2014, the LA rendered judgment in favor of petitioner. It held that petitioner was constructively dismissed as Kleentech failed to actively and overtly reinstate her or to give her a new assignment within six (6) months after placing her on "floating status." The fallo of the decision reads:

WHEREFORE, premises considered, judgment is hereby rendered declaring that complainant was constructively dismissed.

Consequently, respondent KLEENTECH INDUSTRIES CORPORATION is hereby ordered to pay complainant AZENITH S. BRIONES the following monetary awards:

 

1.	Backwages	-	P86,053.05
2.	Separation Pay	-	P56,232.00
			––––––––––
	Total		P142,285.05

 

All other claims are dismissed for lack of merit. Respondent FAYE JAMERO is dropped as party-respondent for lack of cause of action.

SO ORDERED. 11

The NLRC Ruling

On appeal, the NLRC reversed and set aside the LA's decision. 12 It gave credence to the registered mail presented by Kleentech sent to petitioner's last known address, asking her to report to the office for immediate posting at Shore Solution. The NLRC held that the fact that petitioner was notified of her new assignment via registered mail was considered sufficient compliance with the law's requirement of notice. It further stated that only two (2) weeks passed after petitioner was placed on floating status, when she was notified to report to the office for immediate placement. The portion of the NLRC's assailed decision is as follows: DHIcET

WHEREFORE, the appeal having merit is hereby granted. The Decision of the Labor Arbiter is REVERSED and SET ASIDE and the complaint is dismissed for lack of merit. Respondents, however, are ordered to reinstate complainant to her former position without backwages within 10 days from receipt hereof.

SO ORDERED. 13

The CA Ruling

In its Decision 14 dated November 27, 2015, the CA affirmed the findings of the NLRC. It held that other than petitioner's unsubstantiated allegations, there was no evidence presented to show that she was indeed dismissed from work or prevented from returning to her job. In the absence of any showing of an overt or positive act proving that Kleentech had dismissed petitioner, the latter's claim of illegal dismissal cannot be sustained as the same would be self-serving, conjectural and of no probative value. The dispositive portion reads:

FOR THESE REASONS, the instant petition is DISMISSED for lack of merit, and the NLRC's Decision 18 August 2014 and Resolution dated 22 September 2014 in NLRC LAC No. 08-001983-14 (NLRC NCR Case No. 02-02547-13) are AFFIRMED in toto.

SO ORDERED. 15

Petitioner filed a Motion for Reconsideration 16 but it was denied in a Resolution 17 dated August 19, 2016.

Hence this petition.

Issue

Whether the Court of Appeals erred in affirming the NLRC's finding that petitioner Briones was not illegally dismissed and, thus, not entitled to her money claims. 18 HcDSaT

Petitioner insists that she was constructively dismissed considering that more than six (6) months had elapsed from November 21, 2011 up to the filing of the complaint, but no new assignment was given to her by Kleentech. 19 Moreover, the lone letter-memo sent to her address in Makati City cannot be considered as substantial compliance under Article 286 of the Labor Code as the memo was sent to her former address in Makati City and not to her correct/current address in Bicutan, Taguig, as indicated in her identification card and medical examination certificate. 20

In their Memorandum, 21 which was treated as a comment, respondents argued that petitioner failed to provide them with her new address. Even granting, but without assuming, that petitioner's new address was stated in her ID and in her medical certificate, records would reveal that she failed to show proof that respondents were duly or officially notified thereof. IDaEHC

Respondents contended that as early as the preliminary conference before the LA and after receipt of the LA and NLRC decisions, petitioner was informed, thru letters to report for duty but she refused to do so. The respondents asserted that petitioner's continuous refusal to report back for work despite several requests/notifications only proves her voluntary termination of employment which is further bolstered by her complaint as she merely asked for separation pay.

The Court's Ruling

The petition is impressed with merit.

Generally, the Court gives great weight and respect to the factual findings of administrative agencies. But when, as in this case, such bodies have conflicting factual findings, the Court has reason to go over both findings to ascertain which one has support in the evidence. 22 The conflicting factual findings make this case an exception 23 to the general rule that only questions of law may be raised before this Court in a petition for review on certiorari under Rule 45. For this reason, the Court gave due course to this petition. 24

The CA erred in affirming the findings of NLRC that there was no illegal dismissal on the part of respondent Kleentech. It failed to appreciate the fact that petitioner was placed on floating status for more than six months, effectively dismissing her constructively from employment. In Malig-on v. Equitable General Services, Inc., 25 it was stated:

The company evidently placed Malig-on on floating status after being relieved as janitress in a client's workplace. But, as the Court has repeatedly ruled, such act of "off-detailing" Malig-on was not the equivalent of dismissal so long as her floating status did not continue beyond a reasonable time. But, when it ran up to more than six months, the company may be considered to have constructively dismissed her from work. x x x 26 (emphasis supplied) DTCSHA

In this case, petitioner was relieved from her post at EFCO on November 23, 2011 at the latter's request. Despite being on floating status since she was placed off-detail on the said date, Kleentech failed to give her a new assignment until February 15, 2013, the date of filing of petitioner's complaint.

Although a letter-memo dated December 6, 2011, was sent by Kleentech directing petitioner to report to its main office for a new assignment, the same was not received by the latter. Evidence shows that the lone memo was sent to the former Makati address of petitioner, as contained in her 201 file/bio-data. However, she was no longer residing at the said address as of the date of mailing. It must be emphasized that the 201 file/bio-data was submitted when petitioner first started working with Kleentech in 2004, which was several years ago. cDSAEI

In Ibon v. Genghis Khan Security Services, 27 the Court stated:

Respondent could not rely on its letter requiring petitioner to report back to work to refute a finding of constructive dismissal. The letters, dated November 5, 2010 and February 3, 2011, which were supposedly sent to petitioner merely requested him to report back to work and to explain why he failed to report to the office after inquiring about his posting status. More importantly, there was no proof that petitioner had received the letters. 28 (emphasis supplied)

Conversely, the identification card as well as the recent medical certificate submitted by petitioner to Kleentech indicated her current Taguig address where the latter could have sent notices regarding her new assignment. Thus, Kleentech evidently has information regarding the current address of petitioner. CScTED

The records further belie Kleentech's allegation that petitioner failed to provide proof that they received a copy of the medical certificate. In its Verified Position Paper 29 submitted to the NLRC, it was stated therein that petitioner was able to submit a medical certificate on November 21, 2011. 30 A copy of the said medical certificate was even attached as "Annex B-5" and the current Taguig address of petitioner is indicated therein. 31 Therefore, Kleentech deliberately overlooked the fact that petitioner already changed her address.

Other than the said letter-memo, no other action was made by Kleentech to actually reinstate or deploy petitioner to a similar posting/assignment before the lapse of the six-month period allowed by law. No credible explanation was offered by Kleentech as to why it failed to exert efforts to further contact petitioner after the said letter-memo was returned unclaimed. The lone memo cannot be considered as substantial compliance under Article 286 of the Labor Code, to wit: EDCcaS

Article 286. When employment not deemed terminated. — The bonafide suspension of the operation of a business or undertaking for a period not exceeding six months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one month from the resumption of operations of his employer or from his relief from the military or civic duty. (emphasis supplied)

With regard to the claim that petitioner's contemporaneous acts provide substantial proof of her voluntary termination of employment, the same must also fail. "Abandonment as a just ground for dismissal requires deliberate, unjustified refusal of the employee to resume his employment. Mere absence or failure to report for work, after notice to return, is not enough to amount to abandonment. Moreover, abandonment is a matter of intention; it cannot be inferred or presumed from equivocal acts." 32 cDCEIA

The failure on the part of petitioner to report for a new assignment at Shore Solution is because she did not receive the letter-memo regarding the said assignment. To reiterate, Kleentech did not properly send the said letter-memo to her updated address. She cannot, therefore, be deemed to have abandoned her work when there is clearly no deliberate intent to sever her employment with Kleentech.

Moreover, given that petitioner took steps to protest her dismissal from work when she filed a complaint for illegal dismissal with the LA, it cannot be concluded that there was abandonment. ISHaCD

Also, petitioner's failure to comply with respondent's directive to report back to work after receiving the LA's Decision could not have the effect of validating an otherwise constructive dismissal considering the same was made only after petitioner had filed a case for illegal dismissal. "Further, at the time the offer for reinstatement was made, petitioner's constructive dismissal had long been consummated. Such belated gesture does not absolve respondent from the consequences of petitioner's dismissal." 33

Consequently, following Article 279 34 of the Labor Code, petitioner, who is a regular employee, is entitled to reinstatement without loss of seniority rights and payment of backwages from the time her compensation was withheld up to the time of her actual reinstatement. 35 However, considering that there was no prayer for reinstatement in her complaint or position paper and there has been a long lapse or passage of time that she was out of Kleentech's employ from her last day of work on November 22, 2011, separation pay in lieu of reinstatement is proper. 36 As held in Velasco v. National Labor Relations Commission37viz.: DHESca

The accepted doctrine is that separation pay may avail in lieu of reinstatement if reinstatement is no longer practical or in the best interest of the parties. Separation pay in lieu of reinstatement may likewise be awarded if the employee decides not to be reinstated.38 (emphasis supplied)

As correctly held by the LA, petitioner is entitled to separation pay, in lieu of reinstatement, equivalent to one-month salary for every year of service, with a fraction of at least six months considered as one year. Also, she must be paid backwages computed from the lapse of the six-month floating status, or on May 23, 2012, up to the filing of the complaint on February 15, 2013.

However, with regard to the claim of petitioner that she was not paid her salary for the month of November, the same must be denied. The cash vouchers as well the bank checks 39 adduced by Kleentech clearly show that petitioner was paid her salary for November 1 to 15, 2011. She was also paid a five-day incentive leave pay for 2011. The LA's finding that petitioner cannot claim salary for the second half of November is also correct, there being no services rendered by petitioner for the said period.

WHEREFORE, the petition is GRANTED. The Decision dated November 27, 2015 and the Resolution dated August 19, 2016 of the Court of Appeals in CA-G.R. SP No. 138118 are REVERSEDANDSETASIDE. The Decision dated June 30, 2014 of the Labor Arbiter is hereby REINSTATED. Kleentech Industries Corporation is ordered to pay Azenith S. Briones backwages from May 23, 2012 until February 15, 2013, and separation pay in lieu of reinstatement. TEHIaD

SO ORDERED."

Very truly yours,

WILFREDO V. LAPITANDivision Clerk of CourtBy:(SGD.) MISAEL DOMINGO C. BATTUNG IIIDeputy Division Clerk of Court

 

Footnotes

1.Rollo, pp. 12-26.

2. Penned by Associate Justice Elihu A. Ybañez with Associate Justices Magdangal M. De Leon and Victoria Isabel A. Paredes, concurring; id. at 33-45.

3.Id. at 47-48.

4.Id. at 90-97.

5.Id. at 78-84.

6.Id. at 99-100, par. 12, Complainant's Position Paper.

7.Id. at 116, par. 13, Respondent's Verified Position Paper.

8.Id., par. 14.

9.Id. at 117-118, pars. 18-21.

10.Id. at 78-84.

11.Id. at 83-84.

12.Id. at 66-74.

13. Id. at 73.

14. Id. at 33-45.

15. Id. at 44-45.

16. Id. at 237-241.

17. Id. at 47-48.

18. Id. at 19.

19. Id. at 22.

20. Id. at 20-21.

21. Id. at 249-255.

22. Malig-on v. Equitable General Services, Inc., 636 Phil. 330, 334 (2010).

23. The findings of fact of the Court of Appeals may be reviewed by the Court in any of the following instances:

   "1) when the factual findings of the Court of Appeals and the trial court are contradictory;

   "2) when the findings are grounded entirely on speculation, surmises, or conjectures;

   "3) when the inference made by the Court of Appeals from its findings of fact is manifestly mistaken, absurd, or impossible;

   "4) when there is grave abuse of discretion in the appreciation of facts;

   "5) when the appellate court, in making its findings, goes beyond the issues of the case, and such findings are contrary to the admissions of both appellant and appellee;

   "6) when the judgment of the Court of Appeals is premised on a misapprehension of facts;

   "7) when the Court of Appeals fails to notice certain relevant facts which, if properly considered, will justify a different conclusion;

   "8) when the findings of fact are themselves conflicting;

   "9) when the findings of fact are conclusions without citation of the specific evidence on which they are based; and

   "10) when the findings of fact of the Court of Appeals are premised on the absence of evidence but such findings are contradicted by the evidence on record." See Esquivel v. Reyes, 457 Phil. 509 (2003), citing Oarde v. CA, 345 Phil. 457 (1997).

24. Esquivel v. Reyes, 457 Phil. 509, 517 (2003).

25. Supra note 22 at 336.

26. Id.

27. G.R. No. 221085, June 19, 2017.

28. Id.

29. Id. at 111-131.

30. Id. at 114, par. 9, Respondent's Verified Position Paper.

31. Id. at 135, Medical Examination Certificate dated November 21, 2011.

32. New Ever Marketing, Inc. v. Court of Appeals, 501 Phil. 575, 586 (2005).

33. Ibon v. Genghis Khan Security Services, et al. G.R. No. 221085, June 19, 2017.

34. ART. 279. Security of Tenure. — In cases of regular employment, the employer shall not terminate the services of an employee except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits or their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.

35. Sanoh Fulton Phils., Inc., et al. v. Bernardo and Taghoy, 716 Phil. 378, 391 (2013).

36. F.F. Marine Corporation, et al. v. The Hon. Second Division NLRC, et al., 495 Phil. 140, 159 (2005).

37. Id.

38. 525 Phil. 749, 761 (2006).

39. Rollo, pp. 139-189.