Corominas Bus Co. v. Gesman

THIRD DIVISION

[G.R. No. 214944. June 10, 2019.]

COROMINAS BUS CO./DULCE GANTUANGCO AND JOSEFINA COROMINAS, petitioners, vs.BUENAVENTURA GESMAN, respondent.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution dated June 10, 2019, which reads as follows:

"G.R. No. 214944 (Corominas Bus Co./Dulce Gantuangco and Josefina Corominas vs. Buenaventura Gesman). — The Court resolves to NOTE:

(1) the Entry of Appearance dated September 3, 2018, filed by Atty. Wendellon A. Buenviaje, as new counsel for respondent, requesting that he be furnished with copies of all pleadings, notices and other court processes in this case at Door 6, Ouano-Jakosalem Arcade, National Highway, Tipolo, Mandaue City;

(2) Atty. Remigio P. Torres' Comments on the Manifestation dated December 14, 2018 on the Urgent Manifestation dated August 28, 2018 by respondent, who had manifested that he was formally withdrawing the appearance of Atty. Torres due to his disagreement with the latter but despite respondent repeatedly informing and requesting counsel to formally withdraw his appearance, the same fell on deaf ears;

(3) the letter dated February 22, 2019 of Abdul M. Amer, Records Officer IV, Judicial Records Section, Court of Appeals, Cebu City, addressed to the Chief Judicial Staff Officer of the Supreme Court, stating that the records of the case have been elevated to the Supreme Court (Second Division) on February 12, 2019;

(4) the transmittal letter dated February 12, 2019 of the Court of Appeals (CA), Cebu City, elevating to the Court the CA rollo of this case; and

(5) petitioners' comment to respondent's urgent manifestation dated April 30, 2019.

Before this Court is a Petition for Review on Certiorari 1 filed by Corominas Bus Co. (Corominas)/Dulce Gantuangco and Josefina Corominas (petitioners) under Rule 45 of the 1997 Rules of Civil Procedure seeking to annul and set aside the Decision 2 of the Court of Appeals (CA) Cebu City in CA-G.R. UDK SP No. 05524 dated November 29, 2013, and its Resolution 3 dated September 24, 2014 denying the motion for reconsideration thereof. CAIHTE

Petitioner Corominas was originally owned by Andres N. Corominas (Andres). Upon the latter's death, the management of the company was transferred to his Estate through petitioner Dulce Gantuangco. On March 30, 2009, the heirs of Andres entered into a judicial partition, which adjudicated Bus Nos. 41 and 46 in favor of Andrea Therese Z. Corominas (Andrea). As Andrea is still a minor, the buses are managed and she is herein represented by her guardian, petitioner Josefina Corominas (Josefina). 4

Buenaventura Gesman (respondent) has been employed as a driver by Corominas since June 12, 1997. As such, he was assigned to drive Bus No. 41 with the route of Cebu City-Tuburan-Cebu City. The respondent maintained that during his employment, he works daily and even during holidays from 3:00 a.m. until 7:00 p.m. He claimed that he has no derogatory record, as in fact, he reports for work 30 minutes prior to his scheduled departure. 5

The respondent narrated that sometime after Corominas was placed under new management, he inquired of his entitlement to retirement and separation pay with respect to the services he rendered under the previous owner. This move, according to the respondent, is what started Corominas' hostile treatment against him. 6

Respondent claimed that sometime during March 2009, his various requests for replacement of damaged and flat tires were repeatedly rejected by Corominas. On March 9, 2009, the respondent made a similar request, but he was told to leave until a new one is secured. Before heading home, the respondent averred that he left a note on the bus stating in Visayan dialect that he left the bus due to non-availability of tires and advised Corominas to inform him once a new tire is already available. 7

On March 14, 2009, the respondent reported to Corominas but was surprised to find out that Bus No. 41 was already driven by another driver.

The respondent maintained that it was only about half an hour later that he was given a Memorandum and informed that he was suspended for being a reckless driver. He was ordered to report on March 16, 2009 for an investigation. 8

Believing that he can no longer go back to work, and receiving the information as to the result of the investigation, the respondent filed a complaint for illegal suspension, illegal dismissal, non-payment of overtime pay, holiday pay and premium, rest day and premium, 13th month pay, service incentive leave, and attorney's fees, before the Regional Arbitration Branch No. VII of the National Labor Relations Commission (NLRC). 9

Petitioners, for their part, argued that the respondent has not been illegally dismissed but abandoned his job since March 9, 2009. For which, they claim that they sent the respondent a letter dated March 12, 2009, ordering him to show cause and report to the company premises on March 16, 2009. However, the respondent failed to appear. The petitioners also faulted the respondent for his reckless driving which exposes the new management to liability in the event of an accident. Finally, the petitioners denied the respondent's claims, and submitted that they adequately paid the respondent all his salary and monetary benefits. 10

On February 18, 2010, Labor Arbiter (LA) Emiliano C. Tiongco, Jr. rendered his Decision 11 finding the respondent to have been illegally dismissed, thereby ruling as follows:

WHEREFORE, premises considered, judgment is hereby rendered declaring the illegal dismissal of [the respondent].

[Corominas and Josefina] are hereby ordered to jointly and severally pay [the respondent] the following:

 

1.	Backwages	P89,712.00
2.	Separation Pay	P96,120.00
3.	Service Incentive Leave Pay	P4,005.00
		–––––––––––
		P189,837.00
4.	Attorney's Fees	P18,983.70
		–––––––––––

TOTAL

P208,820.70

 

All other claims are hereby dismissed for lack of merit.

SO ORDERED. 12 DETACa

The petitioners appealed to the NLRC. On July 22, 2010, the NLRC promulgated its Decision, 13 ordering:

WHEREFORE, premises considered, the instant appeal is hereby GRANTED and the appealed Decision is hereby SET ASIDE and REVERSED. A NEW DECISION is entered declaring that there was no dismissal effected neither was there abandonment, thereby allowing [the respondent] to return to work but without payment of backwages. His failure, however, to report for work upon receipt hereof will be construed as resignation. [Petitioners] are hereby ordered to pay the amount of P5,340.00 to cover payment of salaries for [the respondent's] unjustified preventive suspension for twenty (20) days and P4,005.00 for unpaid service incentive leave pay.

SO ORDERED. 14 (Emphases in the original)

Respondent elevated the case to the CA via a petition for certiorari under Rule 65 of the Rules of Court. The CA rendered the herein assailed Decision 15 on November 29, 2013, finding that the respondent has been illegally dismissed, viz.:

WHEREFORE, premises considered, the petition is hereby GRANTED. The Decision dated July 20, 2010 and [the] Resolution dated August 31, 2010 of the [NLRC], Seventh Division is ANNULLED and SET ASIDE. The Decision of the [LA] dated February 18, 2010 is hereby REINSTATED with MODIFICATION that the money claims shall be paid solely by [Josefina]. The records of this case are ordered REMANDED to the Office of the [LA] for the correct computation of [the respondent's] monetary claims with dispatch.

SO ORDERED. 16 (Emphases in the original)

Thus, this Petition for Review on Certiorari filed by the petitioners, attributing the following errors committed by the CA for the Court's consideration, to wit:

1. WHETHER OR NOT THE HONORABLE CA COMMITTED GRAVE ABUSE OF DISCRETION IN FAILING TO RULE ON THE ISSUE THAT THE PETITION DESERVES TO BE DENIED OUTRIGHT.

2. WHETHER OR NOT THE DECISION AND RESOLUTION OF THE HONORABLE CA RULING THAT THE RESPONDENT WAS CONSTRUCTIVELY DISMISSED IS IN ACCORD WITH LAW, SETTLED JURISPRUDENCE AND EVIDENCE ON RECORD.

3. WHETHER OR NOT THE HONORABLE CA'S MONETARY AWARD TO THE RESPONDENT FINDS SUPPORT IN LAW, AND EVIDENCE ON RECORD.

4. WHETHER OR NOT THE HONORABLE CA'S FINDING THAT PETITIONER JOSEFINA SHALL BE HELD SOLELY RESPONSIBLE TO THE AWARDED CLAIMS IS SUPPORTED BY LAW, JURISPRUDENCE AND EVIDENCE ON RECORD. 17

Synthesized, the Court must resolve whether or not the CA was correct in ruling that the NLRC committed grave abuse of discretion when the latter ruled that the respondent has not been illegally dismissed.

Ruling of the Court

The petition is partly meritorious.

The Court agrees with the decision of the CA; the NLRC committed grave abuse of discretion when it disregarded pieces of evidence that are material and crucial to the resolution of the instant controversy. 18

While a petition for review under Rule 45 calls only for the resolution of questions of law, considering the variance in factual findings of the LA and the NLRC, this case presents an exception for the Court to re-evaluate the evidence. 19

Foremost, contrary to the position of the petitioners, the Court finds that the respondent has been illegally dismissed. On this matter, the wording of the Memorandum dated March 12, 2009 issued by Josefina and submitted in evidence is telling, viz.: aDSIHc

You will please remember that you, as a bus driver, transferred to my management from the estate of the late Andres Corominas only on February 1, 2009. Since then[,] I have observed that you are driving the bus assigned to you with such speed that it takes you only 3 hours to negotiate the 106 kilometers Cebu City to Tuburan via Toledo route which usually takes other drivers some 3 1/2 to 4 hours.

Your practice has caused great damage and prejudice to our business considering that you pick up relatively fewer passengers not to mention the damage liable to be caused to the unit assigned to you because of your reckless driving.

Last March 9, 2009 in the morning you reported regarding a damaged tire which needed replacement. I immediately attended to it by buying a replacement only to find out that you went home to your hometown without my knowledge. To date[,] you have failed to report to work and the unit assigned to you has been left idle without earning any income.

In view hereof, you are hereby directed to report to my office for investigation at 10:00 A.M. on March 16, 2009. Should you fail, we shall consider you to have abandoned your job.

In the meantime, you are hereby placed under preventive suspension for 20 days to take effect immediately.

Be guided accordingly. 20

From the tenor of the letter, it is clear that there is no basis in the petitioners' claim that the respondent abandoned work. On the contrary, as only three (3) days passed and as Josefina herself stated in the Memorandum, the respondent's failure to report to work is merely a regular absence. Also, Josefina acknowledged receipt of the respondent's request of a new tire. Surely, as the respondent has already left at the time the replacement tire was given, he has no means of knowing, unless notified by the petitioners. In fact, as noted by the LA —

Verily, respondents only served complainant the show-cause letter dated March 12, 2009 when complainant went to their office on March 14, 2009 to find out if Bus No. 41 had already a new tire. If indeed[,] complainant did not report to work for no reason at all, respondents would not have waited until March 14, 2009 to serve him the March 12, 2009 Memorandum. 21

It is established that abandonment is a matter of intention, that cannot be lightly inferred nor legally presumed from equivocal acts. 22 In this case, the respondent's act of returning back to the company premises days after he hasn't heard from the company to inquire whether his request has been granted is contrary to the idea of abandonment. To justify the dismissal of an employee on the ground of abandonment, the employer must adduce evidence consisting of overt acts which clearly evince the employees deliberate and unjustified refusal to resume employment. Mere failure to work is insufficient. 23 Petitioners failed to discharge this burden.

What is evident from the attending facts is the petitioners' intent to terminate the respondent, in the words of the CA —

[T]his Court also finds it puzzling why [Josefina] would claim that she did not terminate [the respondent] when her acts would explicitly reveal a different intention. x x x; deliberate failure to contact [the respondent] after the tires of Bus No. 41 were already replaced; deliberate act of substituting [the respondent] with another driver without even notifying him; x x x[-]all these would largely unveil her hidden purpose of terminating [the respondent]. 24

Furthermore, while Corominas has the right to place the respondent under preventive suspension, its act of replacing the respondent prior to his being informed of the offenses he has committed is dubious. Coupled with the fact that the petitioners only expressed their complaint against the respondent and implemented his suspension on account of his supposed reckless driving came not immediately after the act complained of happened, but rather belatedly, supports the conclusion that the petitioners indeed intend to dismiss the respondent.

Having, thus, ruled that the respondent has been illegally dismissed, and in light of the fact that reinstatement is no longer possible, the award of monetary claims is therefore proper.

On the matter of liability, the Court notes that a portion of the award of monetary benefits in favor of the respondent was awarded and computed taking into consideration the services he has rendered, while, Corominas is under the management of Andres. In this light, it is only proper that Corominas and Josefina be ordered to pay solidarily, subject to reimbursement as warranted by the circumstances and taking into consideration the period of service when the benefits accrued.

WHEREFORE, in view of the foregoing, the instant petition for review on certiorari is hereby PARTLY GRANTED. Accordingly, the Decision dated November 29, 2013 and the Resolution dated September 24, 2014 of the Court of Appeals Cebu City in CA-G.R. UDK SP No. 05524 are hereby AFFIRMED with MODIFICATION in that petitioners Corominas Bus Co. and Josefina Corominas are adjudged to be solidarily liable for the monetary award, and interest thereon at the rate of six percent (6%) per annum from the date of finality of this Resolution until fully paid. ETHIDa

Thus modified, the assailed CA Decision is affirmed in all other respects.

SO ORDERED." (Hernando, J., no part due to his prior participation in the CA; Reyes, J., Jr., J., designated additional Member per Raffle dated January 28, 2019.)

Very truly yours,

(SGD.) WILFREDO V. LAPITANDivision Clerk of Court

 

Footnotes

1.Rollo, pp. 3-22.

2. Penned by Associate Justice Carmelita Salandanan-Manahan, with Associate Justices Ramon Paul L. Hernando (now a Member of this Court) and Ma. Luisa C. Quijano-Padilla, concurring; id. at 25-40.

3. Penned by Associate Justice Ramon Paul L. Hernando (now a Member of this Court), with Associate Justices Edgardo L. Delos Santos and Ma. Luisa C. Quijano-Padilla concurring; id. at 41-42.

4.Id. at 27.

5.Id. at 26-27.

6.Id. at 28.

7.Id.

8.Id.

9.Id. at 29.

10.Id. at 29-30.

11. CA rollo, pp. 69-78.

12.Id. at 77-78.

13.Id. at 141-150.

14.Id. at 149-150.

15.Rollo, pp. 25-40.

16.Id. at 39-40.

17.Id. at 8-9.

18. Cocomangas Hotel and Beach Resort v. Visca, et al., 585 Phil. 696, 704-705 (2008).

19. Paredes v. Feed the Children Philippines, Inc., 769 Phil. 418, 443 (2015).

20. Records, pp. 73-74.

21. Id. at 74.

22. Tan Brothers Corp. of Basilan City v. Escudero, 713 Phil. 392, 402 (2013).

23. Demex Rattancraft, Inc. v. Leron, G.R. No. 204288, November 8, 2017, 844 SCRA 461, 470-471.

24. Rollo, p. 35.