FIRST DIVISION
[G.R. No. 201899. November 21, 2018.]
LARRY M. GUERRERO, petitioner,vs. CABINET SPECIALIST, INC., AND/OR FRANCISCO M. SEBASTIAN, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated November 21, 2018, which reads as follows:
"G.R. No. 201899 (LARRY M. GUERRERO, Petitioner, v. CABINET SPECIALIST, INC., and/or FRANCISCO M. SEBASTIAN, Respondents) — The Court DISMISSES this appeal for failure of the petitioner to sufficiently show that the Court of Appeals (CA) committed any reversible error in promulgating the assailed decision on January 12, 2012 that reversed the ruling of the National Labor Relations Commission (NLRC) thereby declaring that the petitioner was not illegally dismissed. 1
The petitioner insists that the CA erred in holding that the burden to prove the fact of dismissal rests upon him; that he had established the illegality of his dismissal because it would have been senseless for him to suddenly forego of his employment with the respondent after having served therein for 16 years; that the respondents did not provide any explanation for his sudden disinterest in his job; that the respondents failed to prove his alleged abandonment; that the acts of respondent Francisco M. Sebastian reflected his intention to dismiss the petitioner as an employee; that he is entitled to backwages and separation pay since reinstatement is no longer feasible. 2
In contrast, the respondents submit that the factual circumstances of the case indicated that the petitioner was only reprimanded, not terminated from employment; that he voluntarily and deliberately abandoned his work; that he was not entitled to backwages and separation pay; that the factual findings of the NLRC are not supported by substantial evidence; and that the respondents were entitled to actual, moral and exemplary damages, as well as to attorney's fees and litigation expenses. 3
The appeal lacks merit.
In illegal dismissal cases, the employer bears the burden of proving that the termination was for a valid or authorized cause. However, logic dictates that the complaining employee must first establish by substantial evidence the fact of the termination of his employment. If there is no proof of such termination by the employer, the question about the legality or illegality thereof does not arise. 4 This adheres to the burden of proof being on the party who alleges, not on the party who denies. A party alleging a critical fact must support his allegation with substantial evidence, for any decision based on unsubstantiated allegation cannot stand without offending due process. Thus, the fact of dismissal must be established by positive and overt acts of an employer indicating the intention to dismiss before the burden is shifted to the employer to show that the dismissal was legal. 5
Other than the petitioner's bare allegation of his being terminated from employment, there was nothing to show that he was dismissed from work or was prevented from returning to his work. In the absence of any showing of an overt or positive act proving that the respondents dismissed the petitioner, the claim of illegal dismissal cannot be sustained inasmuch as the same would remain self-serving, conjectural and bereft of any probative value.
On the other hand, the respondents cannot be blamed for not ordering the petitioner to return to work. As the records show, he immediately filed the complaint for illegal dismissal on March 10, 2008, or four days after he last reported to his work. 6 Under the circumstances, it would be absurd to still expect the respondents to order him to go back to work after he had already commenced the case for illegal dismissal against them. 7
Nonetheless, even if there was no illegal dismissal, we cannot sustain the respondents' argument that the petitioner abandoned his work. They presented no evidence to show his intent to abandon his employment. For this purpose, the two elements of abandonment of work to be established are: one, the employee must have failed to report for work or must have been absent without valid or justifiable reason; and, two, there must have been a clear intention on the part of the employee to sever the employer-employee relationship manifested by some overt act. Mere absence or failure to report to work would not amount to abandonment of work. Verily, 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. 8
Consequently, there is no justification to grant separation pay or backwages, or any other monetary claims for lack of evidence to substantiate the same. Where the employee's failure to work was occasioned neither by his abandonment nor by the termination of employment, it is not right to shift the burden of economic loss to the employer; in that instance, each party must bear his own loss. 9
WHEREFORE, the Court DENIES the petition for review on certiorari; and AFFIRMS the decision promulgated on January 12, 2012 without pronouncement on costs of suit.
SO ORDERED." Bersamin, J.,designated as Acting Chairperson per Special Order No. 2606 dated October 10, 2018; Gesmundo, J., designated as Additional Member per Special Order No. 2607 dated October 10, 2018.
Very truly yours,
(SGD.) LIBRADA C. BUENADivision Clerk of Court
Footnotes
1.Rollo, pp. 247-252; penned by Associate Justice Manuel M. Barrios, and concurred in by Associate Justice Juan Q. Enriquez, Jr. and Associate Justice Apolinario D. Bruselas, Jr.
2.Id. at 44-47.
3.Id. at 293-303.
4.Remoticado v. Typical Construction Trading Corp., G.R. No. 206529, April 23, 2018.
5.Mehitabel, Inc. v. Alcuizar, G.R. Nos. 228701-02, December 13, 2017.
6.Rollo, p. 249.
7.MZR Industries v. Colambot, G.R. No. 179001, August 28, 2013, 704 SCRA 150, 160.
8.Id. at 160-161.
9.Radar Security & Watchman Agency, Inc. v. Castro, G.R. No. 211210, December 2, 2015, 776 SCRA 71, 83-84.