THIRD DIVISION
[G.R. No. 226959. February 20, 2017.]
RAYMUND E. GITO, petitioner,vs. E. D. BUENVIAJE BUILDERS, INC. and/or ERIC A. BUENVIAJE and LISA BUENVIAJE, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Third Division, issued a Resolution dated February 20, 2017, which reads as follows:
"G.R. No. 226959 — RAYMUND E. GITO, Petitioner v. E. D. BUENVIAJE BUILDERS, INC. and/orERIC A. BUENVIAJE and LISA BUENVIAJE, Respondents. — Petitioner's motion for an extension of thirty (30) days within which to file a petition for review on certiorari is GRANTED, counted from the expiration of the reglementary period. HEITAD
For review is the decision promulgated on May 25, 2016, 1 whereby the Court of Appeals (CA) dismissed the petitioner's petition for certiorari, and the resolution promulgated on August 2, 2016 whereby the CA denied his motion for reconsideration. 2
Respondent Buenviaje Builders, Inc. employed the petitioner as a plumber on November 24, 2009 and assigned him in its various projects, including The Fort Residences, Birth Tower, and Aurora Garden. On March 14, 2014, the petitioner was told to wait for a new assignment upon the completion of the project in which he was then assigned. On March 20, 2014, he received his last salary. He was later given another assignment at the Magnolia Residences located in Balete Drive, Quezon City. Without any notice, he was re-assigned to the Alabang Festival Mall. On August 27, 2014, he went to the office of respondent Engr. Eric Buenviaje to find out the reason for his transfer. Respondents' Human Resource Department told him that the transfer was the management's decision, and that he should resign if he did not agree to the transfer. Previously, he had been assigned to Palawan with a measly daily allowance of P30.00 while other employees received P100.00/day; still, he agreed to the transfer although he lived in Bulacan and the transfer would be costly for him because of the distance. When he went to the office to report for work, he was told that he was being dismissed from employment.
On September 26, 2014, the petitioner received a letter from the respondents informing him that he had been absent without leave (AWOL). Consequently, he filed his complaint for illegal dismissal and for payment of monetary benefits with damages in the National Labor Relations Commission (NLRC).
On their part, the respondents denied the petitioner's allegation of illegal dismissal. They asserted that he had failed to report to work and had not been heard from since August 27, 2014; and that they had paid to him the monetary claims, as borne out in their payroll records. aDSIHc
Labor Arbiter (LA) Veneranda C. Guerrero rendered judgment on April 30, 2015 finding the petitioner to be a regular employee of the respondents; declaring him to have been illegally dismissed; and ordering the respondents to pay him separation pay, backwages, service incentive leave pay and attorney's fees. 3
The respondents appealed to the NLRC.
On June 29, 2015, the NLRC reversed the judgment of the Labor Arbiter, and declared that the petitioner had not been illegally dismissed. It deleted the award of separation pay, backwages and attorney's fees. 4
The NLRC denied the petitioner's motion for reconsideration. 5
The petitioner elevated the adverse result to the CA on certiorari.
The CA dismissed the petition for certiorari for lack of merit, 6 observing that the petitioner did not adduce corroborative and competent evidence to substantiate his claim of illegal dismissal; that he had not even shown any overt act proving that the respondents had dismissed him from the service; that he had voluntarily terminated his work, and, accordingly, he could not be entitled to separation pay and backwages.
The CA denied the petitioner's motion for reconsideration. 7
In this appeal, the petitioner insists that the respondents — as his employers — had the burden to prove that his dismissal had been for a just and authorized cause; that the CA erred in requiring him to present his "walking paper" to prove the fact of his dismissal when the respondents did not serve him such notice; and that his transfer to Alabang despite the respondents knowing fully well that he had resided in Bulacan was akin to constructive dismissal because it was oppressive on him; and that being illegally dismissed, he was entitled to his money claims. Accordingly, he now seeks the reinstatement of the LA's judgment in his favor.
Ruling of the Court
After a judicious review of the records, the Court resolves to DENY the petition for review on certiorari for failure of the petitioner to show that the CA committed reversible error in dismissing his petition for certiorari and upholding the decision of the NLRC.
It is basic that the employee must establish by substantial evidence the fact of dismissal before the employer comes under the duty to discharge its burden to prove that it was not guilty of illegal dismissal. In the case of dismissal of the employee the proof should be clear, positive and convincing. Mere allegation is not evidence. 8
The CA correctly found and held that: ATICcS
Aside from petitioner's mere assertion, however, no corroborative and competent evidence was adduced by him to substantiate his claim that he was dismissed from employment. Petitioner completely failed to name the person who dismissed him, when it happened and under what particular circumstances were his dismissal effected. As aptly mentioned by the NLRC in its assailed ruling, petitioner's "allegation of dismissal was couched in general terms so much so that, to Our mind, it is unworthy of belief."
xxx xxx xxx
x x x [T]he fact of dismissal must be evidenced by positive and overt acts of an employer indicating an intention to dismiss. Petitioner's filing of a complaint for illegal dismissal could not by itself be the sole consideration in determining whether he has been illegally dismissed. Absent any showing of an overt or positive act proving that the private respondents have dismissed petitioner, the latter's claim of illegal dismissal cannot be sustained. Given that there was no dismissal to speak of, there can be no question as to the legality or illegality thereof. 9
WHEREFORE, the Court DENIES the petition for review on certiorari; and AFFIRMS the decision promulgated on May 25, 2016, without any pronouncement on costs of suit.
SO ORDERED."
Very truly yours,
(SGD.) WILFREDO V. LAPITANDivision Clerk of Court
Footnotes
1.Rollo, pp. 34-43; penned by Associate Justice Agnes Reyes-Carpio, with Presiding Justice Andres B. Reyes, Jr. and Associate Justice Romeo F. Barza concurring.
2.Id. at pp. 45-46.
3.Id. at p. 37.
4.Id. at p. 38.
5.Id.
6.Id. at p. 42.
7.Id. at pp. 45-46.
8.Noblejas v. Italian Maritime Academy Phils., Inc., G.R. No. 207888, June 9, 2014, 725 SCRA 570, 579.
9.Rollo, pp. 39-40.