FIRST DIVISION
[UDK-16837. September 29, 2021.]
JUNIE YAÑEZ GUILLERMO, petitioner, vs.GREATSTAR SECURITY SERVICES, INC., FERNANDO CASANOVA, JOSEPH NAVARRO, ALEX ROCACOBRA,1AND LAILANI AQUINO, respondents.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, First Division, issued a Resolution dated September 29, 2021which reads as follows:
"UDK-16837 (Junie Yañez Guillermo, petitioner v. Greatstar Security Services, Inc., Fernando Casanova, Joseph Navarro, Alex Rocacobra, and Lailani Aquino, respondents). — The petitioners' 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.
This is an appeal by certiorari under Rule 45 of the Rules of Court, seeking to declare as null and void the September 17, 2020 Decision 2 and January 20, 2021 Resolution 3 of the Court of Appeals (CA) in CA-G.R. SP No. 161699. The CA dismissed the petition for certiorari filed by Junie Yañez Guillermo (petitioner) and affirmed the October 30, 2018 Decision 4 and March 29, 2019 Resolution 5 of the National Labor Relations Commission (NLRC) which, in turn, affirmed with modification the June 5, 2018 Decision 6 of the Labor Arbiter (LA) dismissing the complaint for constructive dismissal.
After a judicious review of the case, the Court resolves to deny the petition for lack of merit.
New factual issues cannot be
In his petition before this Court, petitioner argues that the lower tribunals and the CA erred in failing to observe and appreciate his allegation that he was illegally placed under preventive suspension prior to his dismissal. However, the records reveal that while petitioner's complaint filed with the LA stated that he was preventively suspended for seven (7) days, the same is bereft of any clear allegation that such suspension was illegal. 7 Allegations that petitioner was placed under suspension without just and valid cause were only made before the CA. 8
It is settled that questions on appeal must be within the issues framed by the parties at the beginning of the proceedings; hence, issues not raised before the lower tribunals cannot be raised for the first time on appeal. 9 Basic considerations of fairness and due process impel this rule. 10 To allow such new issue on appeal would likewise be violative of the constitutional right to due process of the adverse party. 11 As such, the Court deems it reasonable not to belabor on petitioner's belated claims that he was illegally placed under preventive suspension. HEITAD
Petitioner was not denied
Petitioner claims that he was denied due process when the LA proceeded to decide the case on its merits despite his failure to file a position paper.
The Court disagrees.
The records clearly show that petitioner was well aware of the deadline for the filing of the position papers. He was even reminded thereof during the conciliation conferences before the LA on April 4, 2018 and April 11, 2018. Nevertheless, petitioner still failed to submit his position paper for the LA's consideration. Petitioner cannot shift the blame to the LA for deciding the case on the merits as it was well within his discretion to submit the case for decision and to do so under Section 16, Rule V of the NLRC Rules. 12 There is likewise no merit in petitioner's argument that the LA was mandated by the NLRC Rules to inform him that his right to file a position paper was waived. A reading of Sec. 22, Rule V 13 of the NLRC Rules shows that prior notice regarding a party's waived right to file his or her position paper only applies when the LA dismisses a case without prejudice. Clearly, the notice requirement under the NLRC Rules cannot be applied in the present case, wherein the LA decided the case on its merits.
Notwithstanding the foregoing, the CA is correct that any perceived error on the part of the LA was deemed rectified in the proceedings before the NLRC. 14 In administrative proceedings, one is afforded due process when he or she is heard and is accorded a fair and reasonable opportunity to explain his or her case or is given the chance to have the ruling complained of reconsidered. 15 In this case, petitioner was repeatedly given the opportunity to present his case before the lower tribunals and have their respective decisions reconsidered. Considering all of the foregoing, petitioner cannot be said to have been denied due process of law.
Petitioner was not illegally dismissed.
Anent the issue of whether petitioner was illegally dismissed, the Court also rules in the negative. Albeit the NLRC partially granting the petitioner's motion for reconsideration declaring that he cannot be considered as having abandoned his job, the lower tribunals are still one in their factual findings that the petitioner was not constructively dismissed. Following settled jurisprudence, this Court is not inclined to review the factual findings and conclusions made by the lower tribunals, absent any divergence in the same. 16
In illegal termination cases, the burden is upon the employer to prove that termination of employment was for just cause, however, the complaining employee must first establish the fact of termination by substantial evidence. 17 There can be no illegal termination when there was no termination. 18 Hence, the burden rests upon the petitioner to prove that he was, in fact, dismissed by Greatstar Security Services, Inc. (Greatstar).
Petitioner surmises that he was illegally dismissed by Greatstar as he was allegedly placed on "floating status." From petitioner's point of view, Greatstar's intention to constructively dismiss him was apparent from its alleged failure to "accommodate him comfortably for his new assignment" and from having received no response from Greatstar while he was awaiting his new assignment. 19 The Court is not convinced.
The Court has previously ruled that when the floating status of security detail lasts for more than six (6) months, the employee may be considered to have been constructively dismissed. 20 However in the case of Ibon v. Genghis Khan Security Services, 21 this Court clarified that if the security guard is assigned to another posting within six (6) months from his last deployment to a specific or particular client, there is no constructive dismissal. 22
In the case at bar, it was clear that while petitioner was not able to go back to his previous post at the Ospital of Makati, he was not left without an assignment. In fact, Greatstar immediately issued a duty detail order in favor of petitioner and assigned him to a specific client, the Philippine Sports Commission. Nevertheless, petitioner refused his new assignment and preferred to wait for an opening located in an area more convenient to him. Clearly, petitioner's failure to assume another post was by no fault of Greatstar, but caused by his own refusal to accept his new assignment. 23
While it is settled that petitioner was not constructively dismissed, he likewise cannot be considered to have abandoned his job. As the NLRC correctly determined, there was no proof that the notices to return issued by Greatstar were, indeed, received personally by petitioner. 24 Jurisprudence dictates that abandonment of work requires not only that the employee fails to report for work without valid reason, but that there also be a clear intention to sever the employer-employee relationship, manifested by his or her overt acts. 25 The Court agrees with the CA that petitioner's complaint and his statements therein were a clear manifestation that he had no intention of abandoning his work. 26
In cases such as this, where the employee fails to prove the fact of his illegal dismissal, and the employer similarly fails to demonstrate that the employee had abandoned his work, the employee's reinstatement without the payment of backwages is warranted. 27 However, if the reinstatement of the employee is rendered impossible, an award of separation pay is proper in lieu of reinstatement. 28
WHEREFORE, the instant petition is DENIED. The assailed September 17, 2020 Decision and January 20, 2021 Resolution of the Court of Appeals in CA-G.R. SP No. 161699 are AFFIRMED with MODIFICATION. Greatstar Security Services, Inc. is hereby ORDERED to REINSTATE petitioner Junie Yañez Guillermo to his former position, within ten (10) days from receipt of this Resolution, or to pay separation benefits if reinstatement shall no longer be feasible. On the other hand, petitioner is DIRECTED to report for work within ten (10) days from notice, otherwise, he shall be deemed to have abandoned his employment.
The petitioner is required to SUBMIT, within five (5) days from notice hereof, a soft copy in compact disc, USB or e-mail containing the PDF file of the signed first motion for extension of time to file petition for review on certiorari pursuant to A.M. Nos. 10-3-7-SC and 11-9-4-SC. ATICcS
SO ORDERED."
By authority of the Court:
(SGD.) LIBRADA C. BUENADivision Clerk of Court
By:
MARIA TERESA B. SIBULODeputy Division Clerk of Court
Footnotes
1. Also referred to as "Alex Rocacorba" in some parts of the rollo.
2.Rollo, pp. 150-164; penned by Associate Justice Franchito N. Diamante with Associate Justices Germano Francisco D. Legaspi and Carlito B. Calpatura, concurring.
3.Id. at 70-71.
4.Id. at 248-255; penned by Presiding Commissioner Grace E. Maniquiz-Tan with Commissioners Dolores M. Peralta-Beley and Mercedes R. Posada-Lacap, concurring.
5.Id. at 204-209.
6.Id. at 267-271; penned by Labor Arbiter Joel A. Allones.
7.Id. at 31.
8.Id. at 184.
9.Boston Equity Resources, Inc. v. Del Rosario, 821 Phil. 701, 715 (2017).
10.Regala v. Manila Hotel Corporation, G.R. No. 204684, October 5, 2020.
11.Union Bank of the Philippines v. Regional Agrarian Reform Officer, 806 Phil. 545, 565 (2017).
12.Section 16. Submission of the Case for Decision. — Upon the submission by the parties of their position papers or replies, or the lapse of the period to submit the same, the case shall be deemed submitted for decision unless the Labor Arbiter calls for a hearing or clarificatory conference in accordance with Sections 12 and 14 (a) of this Rule, in which case, notice of hearing or clarificatory conference shall be immediately sent to the parties. Upon termination of the said hearing or conference, the case is deemed submitted for decision.
13.Section 22. Revival and Re-Opening or Re-Filing of Dismissed Case and Lifting of Waiver. — A party may file a motion to revive or re-open a case dismissed without prejudice, within ten (10) calendar days from receipt of notice of the order dismissing the same; otherwise, the only remedy shall be to re-file the case. A party declared to have waived his/her right to file position paper may, at any time after notice thereof and before the case is submitted for decision, file a motion under oath to set aside the order of waiver upon proper showing that his/her failure to appear was due to justifiable and meritorious grounds.
14.Rollo, pp. 156-157; citing Favila v. The Second Division of the National Labor Relations Commission, 367 Phil. 584 (1999).
15.Fontanilla v. Commission on Audit, 787 Phil. 713, 726 (2016); Besaga v. Spouses Acosta, 758 Phil. 339, 351 (2015).
16.Ledesma, Jr. v. National Labor Relations Commission, 562 Phil. 939, 948 (2007); Philippine Long Distance Telephone Company, Inc. v. Tiamson, 511 Phil. 384, 394 (2005); Gutierrez v. Singer Sewing Machine Company, 458 Phil. 401, 409 (2003).
17.Doctor v. NII Enterprises, 821 Phil. 251, 265 (2017).
18.Remoticado v. Typical Construction Trading Corp., 830 Phil. 508, 515 (2018).
19.Rollo, p. 34.
20.Reyes v. RP Guardians Security Agency, Inc., 708 Phil. 598, 603 (2013).
21. 811 Phil. 250 (2017).
22.Id. at 258-259, citing Tatel v. JLFP Investigation Security Agency, Inc., 775 Phil. 320, 331 (2015).
23. See Exocet Security and Allied Services Corporation v. Serrano, 744 Phil. 403, 419 (2014).
24.Rollo, pp. 161-162.
25.Seventh Fleet Security Services, Inc. v. Loque, G.R. No. 230005, January 22, 2020, citing Veterans Security Agency, Inc. v. Gonzalvo, Jr., 514 Phil. 488, 496-497 (2005).
26.Rollo, p. 162.
27.Gososo v. Leyte Lumber Yard and Hardware, Inc., G.R. No. 205257, January 13, 2021.
28.Id.; AIP Construction v. Marquina, G.R. No. 229225, September 11, 2019 (Notice); Dee Jay's Inn and Café v. Rañeses, 796 Phil. 574, 596 (2016); Nightowl Watchman & Security Agency, Inc. v. Lumahan, 771 Phil. 391, 409 (2015).