THIRD DIVISION
[G.R. No. 228345. March 22, 2017.]
BENITO PASTURIN GEMINIANO, JR., petitioner,vs. MGE TRANSPORTATION CORP./TEOFILO ENRIQUES, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution datedMarch 22, 2017, which reads as follows:
"G.R. No. 228345 (Benito Pasturin Geminiano, Jr. vs. MGE Transportation Corp./Teofilo Enriques). — This treats the Petition for Review on Certiorari under Rule 45 of the Rules of Court, filed by Benito Pasturin Geminiano, Jr., seeking to nullify the June 20, 2016 Decision 1 and November 15, 2016 Resolution of the Court of Appeals (CA) in CA-G.R. SP No. 138921. The challenged rulings sustained the finding of the National Labor Relations Commission (NLRC) that petitioner was not illegally dismissed.
The Facts
In 2006, respondent MGE Transportation Corp. (MGE), owned by respondent Teofilo Enriques (Enriques), hired petitioner as a taxi driver under a boundary system.
On September 28, 2013, petitioner had an argument with the union president, Reynaldo Ferrer (Ferrer), over a personal matter. MGE then issued petitioner a notice directing him to explain why no disciplinary action should be taken against him, with which he complied.
Two days later, on September 30, 2013, petitioner was allegedly informed by Enriques' secretary, Cynthia Balboa (Balboa), that he was terminated from employment. He then allegedly pleaded with Enriques, who turned a deaf ear. This eventually led to petitioner's filing of a complaint 2 for illegal dismissal before the NLRC.
Petitioner anchored his claim on the alleged lack of just cause for his termination and MGE's failure to observe procedural due process requirements. He likewise cited Presidential Decree No. 851 (PD 851) and Article 95 of the Labor Code as basis for his entitlement to 13th month pay and service incentive leave, respectively. Attributing bad faith on the part of respondents in terminating his employment, petitioner averred that an award for moral damages is proper.
In their Position Paper, respondents admitted that no notice of dismissal was issued because there was no dismissal to speak of. The disciplinary action was no longer pursued because petitioner already apologized to Reynaldo Ferrer, with whom he had an argument, and the two have already reconciled. Respondents also claimed that the nature of petitioner's work removes him from the coverage of PD 851 and Article 95 of the Labor Code.
Ruling of the Labor Arbiter
On May 5, 2014, Labor Arbiter Madjayran H. Ajan rendered a Decision 3 holding that petitioner was illegally dismissed and, as such, entitled to full backwages, separation pay, service incentive leave, and 13th month pay. According to the Labor Arbiter, respondents failed to discharge the burden of proving that petitioner's dismissal was for a just and valid cause. Thus, the Labor Arbiter disposed of the case in the following wise:
WHEREFORE, premises above considered, judgment is hereby rendered finding complainant to have been illegally dismissed from employment. As such, the respondents are hereby directed to pay complainant's claim for full backwages and separation pay equivalent to one (1) month pay per year of service, based on the prevailing minimum wage rate. CAIHTE
Further, the respondents are hereby directed to pay complainant's service incentive leave and 13th month pay, subject to the rule on three years prescriptive period.
All other claims are hereby denied for having remained unsubstantiated.
The NLRC Computation and Examination Unit is hereby directed to compute the monetary award, forming part of this decision.
SO ORDERED.
Ruling of the NLRC
On appeal, the NLRC, through its October 28, 2014 Decision, 4 reversed the finding of the Labor Arbiter that petitioner was illegally dismissed. The NLRC simply found no evidence of dismissal that would have established petitioner's claim. The fallo of the Decision reads:
WHEREFORE, premises considered, the decision of the Labor Arbiter Madjayran H. Ajan dated May 5, 2014 is REVERSED AND SET ASIDE. The complaint for illegal dismissal is DISMISSED for lack of merit.
SO ORDERED.
Petitioner's motion for reconsideration was denied on November 28, 2014. Thereafter, he elevated the case to the Court of Appeals on certiorari.
Ruling of the CA
The CA rendered its assailed Decision on October 28, 2014, finding that no grave abuse of discretion attended the NLRC's reversal of the Labor Arbiter's ruling. The appellate court thus dismissed the petition for certiorari in the following wise:
WHEREFORE, premises considered, the Petition for Certiorari is DISMISSED. The assailed Decision dated October 28, 2014 and Resolution dated November 28, 2017 of the National Labor Relations Commission, Sixth Division in NLRC LAC 09-002248-12/NLRC NCR Case No. 10-14109-13 are hereby AFFIRMED.
SO ORDERED.
It likewise found no merit in petitioner's motion for reconsideration. Hence, the instant recourse.
The Issue
Respondents never disputed the employer-employee relationship between the parties. The only issues to be threshed out in this case are (1) whether or not petitioner was illegally dismissed, and (2) whether or not petitioner is entitled to 13th month pay and service incentive leave.
The Court's Ruling
The Court answers both issues in the negative.
Petitioner failed to establish the fact
It is axiomatic that, in illegal dismissal cases, the employee must first prove the fact of dismissal before the burden of evidence is shifted to the employer to prove that the latter terminated the employment for just or authorized cause. The fact of dismissal must be established by positive and overt acts of an employer indicating the intention to dismiss, and the party alleging such critical fact must support his allegation with substantial evidence, 5 or such amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. 6
In the case at bar, petitioner miserably failed to overcome the burden of proof and evidence to establish his claim. Preliminarily, it is worth noting that the disciplinary action was no longer resolved because of the reconciliation between petitioner and Ferrer. There was, therefore, no notice of dismissal issued. Instead, petitioner sought to prove the fact of dismissal through his bare self-serving assertion that he was informed of it by Balboa. This, however, fails to convince, for the secretary does not have the authority to terminate employees. Balboa even executed an affidavit before the NLRC, categorically denying the alleged relay of information. Thus, the Court concurs with the CA that the NLRC did not commit grave abuse of discretion in dismissing the complaint.
Petitioner is not entitled to 13th
Section 1, Rule V of the Implementing Rules and Regulation of the Labor Code expressly excludes field personnel from the coverage of service incentive leave benefits granted under Article 95 7 of the Labor Code. The adverted section reads:
Sec. 1. Coverage. — This rule shall apply to all employees except:
xxx xxx xxx
(d) Field personnel and other employees whose performance is unsupervised by the employer including those who are engaged on task or contract basis, purely commission basis, or those who are paid a fixed amount for performing work irrespective of the time consumed in the performance thereof; (emphasis added)
Field personnel are those who regularly perform their duties away from the principal place of business of the employer and whose actual hours of work in the field cannot be determined with reasonable certainty. Thus, in order to determine whether an employee is a field employee, it is also necessary to ascertain if the actual hours of work in the field can be determined with reasonable certainty by the employer. In so doing, an inquiry must be made as to whether or not the employee's time and performance are constantly supervised by the employer. 8
In the case at bar, it is beyond dispute that petitioner's work as a taxi driver falls squarely within the definition of field personnel. His nature of work grants him the option to perform his duties at any time and at any place that he pleases, so long as he remits the daily boundary agreed upon with MGE. There is then very little to no supervision as to the performance of his work to speak of. Clearly, he can be classified as field personnel outside the coverage of the grant of service incentive leave benefits.
Meanwhile, Section 3 (e) of the implementing rules of PD 851 provides that employees paid on purely boundary basis are not entitled to 13th month pay, viz.:
Sec. 3. Employers covered. — The Decree shall apply to all employers except to:
xxx xxx xxx
(e) Employers of those who are paid on purely commission, boundary, or task basis, and those who are paid a fixed amount for performing a specific work, irrespective of the time consumed in the performance thereof, except where the workers are paid on piece-rate basis in which case the employer shall be covered by this issuance insofar as such workers are concerned. (emphasis added) DETACa
Hence, there is likewise no basis to grant petitioner any award for 13th month pay.
WHEREFORE, finding no reversible error in the assailed Decision and Resolution of the Court of Appeals in CA-G.R. SP No. 138921, the Court resolves to DENY the petition and, thus, AFFIRM said Decision and Resolution.
SO ORDERED."
Very truly yours,
WILFREDO V. LAPITANDivision Clerk of Court
By:
(SGD.) MISAEL DOMINGO C. BATTUNG IIIDeputy Division Clerk of Court
Footnotes
1. Penned by Associate Justice Noel G. Tijam and concurred in by Associate Justices Francisco P. Acosta and Eduardo B. Peralta, Jr.
2. Docketed as NLRC-NCR Case No. 10-14109-13.
3.Rollo, pp. 149-155.
4.Id. at 77-86.
5.Noblejas v. Italian Maritime Academy Phils., Inc., G.R. No. 207888, June 9, 2014.
6.Antiquina v. Magsaysay Maritime Corporation, G.R. No. 168922, April 13, 2011, 648 SCRA 659, 675, citing National Union of Workers in Hotels, Restaurants and Allied Industries-Manila Pavillion Hotel Chapter v. NLRC, G.R. No. 179402, September 30, 2008, 567 SCRA 291, 305.
7. Art. 95. Right to service incentive leave.
1. Every employee who has rendered at least one year of service shall be entitled to a yearly service incentive leave of five days with pay.
2. This provision shall not apply to those who are already enjoying the benefit herein provided, those enjoying vacation leave with pay of at least five days and those employed in establishments regularly employing less than ten employees or in establishments exempted from granting this benefit by the Secretary of Labor and Employment after considering the viability or financial condition of such establishment.
3. The grant of benefit in excess of that provided herein shall not be made a subject of arbitration or any court or administrative action.
8.Auto Bus Transport Systems, Inc. v. Bautista, G.R. No. 156367, May 16, 2005, 458 SCRA 578.