Martinez v. Fastfood Chain Corp.

FIRST DIVISION

[G.R. No. 195512. February 13, 2019.]

MA. AURORA MARTINEZ, petitioner, vs.FASTFOOD CHAIN CORP. [KARATE KID], AND MICHAEL ANG, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution dated February 13, 2019which reads as follows:

"G.R. No. 195512 (MA. AURORA MARTINEZ, Petitioner, v. FASTFOOD CHAIN CORP. [KARATE KID], AND MICHAEL ANG, Respondents.) — In this petition for review on certiorari, the petitioner seeks relief from the Court of Appeals (CA) decision dated September 13, 2010 1 in CA-G.R. SP No. 102875, whereby the Court of Appeals (CA) affirmed the decision and resolution dated May 31, 2007 2 and December 17, 2007, 3 respectively, of the National Labor Relations Commission (NLRC), dismissing the petitioner's complaint for illegal dismissal and modifying the monetary awards granted by the Labor Arbiter.

The essential facts of the case were succinctly recounted in the assailed CA decision, to wit:

Petitioner, Ma. Aurora M. Martinez, was employed since September 2, 1999 as Assistant Store Manager of Karate Kid, Ermita Branch, a restaurant owned by private respondent Fastfood Chain Corporation, located at Robinson's Mall in Ermita[,] Manila.

In the morning of February 7, 2005, cash collections from store sales amounting to approximately P101,556.25 and the DVD player of the restaurant were found missing from the vault of the restaurant. Private respondent Michael Ang referred the matter to the National Bureau of Investigation (NBI).

The NBI conducted polygraph tests on all the employees of said branch of Karate Kid. On the same day, the NBI informed Martinez that she failed the test while both the manager and the cook passed. Petitioner then received a Notice to Explain, dated February 9, 2005, from private respondent's Human Resources Department requiring her to give her side of the incident and why she should not be subjected to disciplinary action.

The next day, after petitioner personally handed her written explanation, she was immediately placed under preventive suspension until further notice. She also received a subpoena, dated February 23, 2005, issued by the NBI. CAIHTE

On April 4, 2005, petitioner wrote the Human Resources Manager of respondent corporation, inquiring why she has been suspended a total of fifty-one (51) days, beyond the thirty-day suspension period allowed by Philippine labor laws. Petitioner also asked that she be reinstated and paid back wages and other benefits accruing to her after the thirty-day suspension period. In response, the human resources manager directed petitioner to report to the Human Resources Office on April 12, 2005.

Petitioner claimed that when she reported to the Human Resources Office, she was asked to resign and told that refusal on her part would result in a demotion. Consequently, petitioner's counsel sent a letter, dated April 20, 2005, to private respondent Michael Ang, the relevant portion of which reads:

"Hence, my client is amenable to accede to your strong and intimidating suggestion that she resign from your company if she were to receive a fair and reasonable financial assistance package equivalent to three (3) months salary; as well as her unpaid salaries, allowances and benefits to date; and together with the necessary clearance to enable her to seek employment elsewhere."

Private respondent's counsel, in a letter-reply to petitioner's counsel, dated April 28, 2005, stated that the evidence gathered points to petitioner as the "culprit for the loss of its property and for which reason, it could not accede" to petitioner's demand.

As a result, petitioner filed a Complaint before the NLRC for illegal dismissal, non-payment of wages, overtime pay, illegal deductions of 13th month pay, unfair labor practice and damages. 4

On March 17, 2006, the Labor Arbiter ruled in favor of the petitioner and found that she had been constructively dismissed in view of the extension of her preventive suspension beyond thirty (30) days coupled with the supposed pressure exerted on her by respondent Michael Ang to resign. The dispositive portion of the Labor Arbiter decision reads:

WHEREFORE, premises considered, respondents Fastfood Chain Corporation (Karate Kid) and/or Michael Ang are clearly guilty of illegally and constructively terminating the services of complainant. Consequently, respondents are ordered to solidarily pay complainant the following:

a) unpaid wages for the period of January 26 to February 11, 2005 in the amount of P6,204.00;

b) back wages from the time she was placed on preventive suspension on February 12, 2005 up to the finality of this decision; at the rate of P12,229.54/month equivalent to P163,019.76 (P12,229.54 x 13.33 mos. = P163,019.76) plus P13,584.90, corresponding to the pro-rata computation of complainant's 13th month pay as provided by law with legal interest up to the time of actual payment;

c) separation pay equivalent to six (6) months salary at the rate of P12,229.54/month in lieu of reinstatement in the sum of P73,377.24;

d) moral damages in the amount of P50,000.00;

e) exemplary damages in the amount of P30,000.00; and

f) attorney's fees in the amount equivalent to 10% of the total judgment award.

SO ORDERED. 5

On appeal, the NLRC reversed the Labor Arbiter and disposed of the case in this wise:

WHEREFORE, the instant appeal is GRANTED and the Appealed Decision dated 17 March 2006 is hereby MODIFIED. The complaint for illegal dismissal is DISMISSED for lack of merit.

The monetary award is MODIFIED. In lieu thereof, respondent appellant Fastfood Chain Corp. is ordered to pay complainant-appellee the following: DETACa

(i) u[n]paid wages from January 26 to February 11, 2005;

(ii) unpaid wages from March 14, (sic) to April 12, 2005;

(iii) pro-rata 13th month pay; and

(iv) One [T]housand Peso[s] (PhP1,000.00) as indemni[t]y for the unauthorized extension of the preventive suspension.

SO ORDERED. 6

Her motion for reconsideration having been denied by the NLRC, herein petitioner sought redress with the CA by filing a petition for certiorari under Rule 65. The CA dismissed the petition after finding that the petitioner wanted a review of the factual findings of the NLRC which a Rule 65 petition proscribes. 7 The petitioner filed a motion for reconsideration but the same was denied.

Hence, this petition for review on certiorari.

The petitioner argued in the main that the CA erred in: (a) dismissing her petition on a technicality (i.e., her failure to allege grave abuse of discretion on the part of the NLRC); (b) ruling that factual findings of the labor tribunals may not be reviewed in a certiorari petition because the CA may make its own factual determination when the findings of fact of the Labor Arbiter and the NLRC conflict; and (c) not holding that the petitioner had been constructively dismissed and entitled to her monetary claims.

We first tackle the procedural issue.

In Philippine National Bank v. Gregorio, 8 this Court reiterated the parameters of the Judiciary's review powers over NLRC decisions, viz.:

We held in St. Martin Funeral Home v. NLRC (St. Martin) that the decision of the NLRC may be reviewed by the CA through a special civil action for certiorari under Rule 65 of the Rules of Court. While we stated in this case that the courts, particularly the CA, possess jurisdiction to review the rulings of the NLRC, our existing laws and rules limit a resort to the courts through a petition for certiorari. In ruling that a special civil action for certiorari is the proper remedy to assail NLRC's decisions, we specified in St. Martin the parameters of the judiciary's review powers over the rulings of the NLRC. In particular, the CA may review NLRC's decisions only when there is grave abuse of discretion amounting to lack or excess of jurisdiction.

A special civil action for certiorari under Rule 65 is not the same as an appeal. In an appeal, the appellate court reviews errors of judgment. On the other hand, a petition for certiorari under Rule 65 is not an appeal but a special civil action, where the reviewing court has jurisdiction only over errors of jurisdiction. We have consistently emphasized that a special civil action for certiorari and an appeal are "mutually exclusive and not alternative or successive." A petition filed under Rule 65 cannot serve as a substitute for an appeal.

Thus, while we said in St. Martin that a special civil action under Rule 65 is proper to seek the review of an NLRC decision, this remedy is, by no means, intended to be an alternative to an appeal. It is not a substitute for an appeal that was devised to circumvent the absence of a statutory basis for the remedy of appeal of NLRC decisions. It is not a means to review the entire decision of the NLRC for reversible errors on questions of fact and law.

xxx xxx xxx

The nature of the judiciary's review of NLRC's decisions also prescribe specific allegations in the petition filed by the party seeking the review. As the petition is filed under Rule 65, it must raise not errors of judgment but the acts and circumstances showing grave abuse of discretion amounting to lack or excess of jurisdiction. Grave abuse of discretion is defined as "an act too patent and gross as to amount to an evasion of a duty, or to a virtual refusal to perform the duty enjoined or act in contemplation of law" or that the tribunal, board or officer with judicial or quasi-judicial powers "exercised its power in an arbitrary and despotic manner by reason of passion or personal hostility." aDSIHc

Without these allegations, the petition should not be given due course. At the risk of repetition, the presence of grave abuse of discretion must be alleged lest a special civil action under Rule 65 become a mere substitute for an appeal. (Emphases supplied; citations omitted). 9

Notable in the petition for certiorari before the CA that it did not identify the NLRC's specific acts constituting grave abuse of discretion. Rather, the petitioner asked the CA to re-examine the evidence presented and to make a finding that she had been constructively dismissed. The petitioner herein admittedly failed to allege the core requirement of a Rule 65 petition — the presence of grave abuse of discretion. However, litigants cannot simply file a pleading denominated as a special civil action for certiorari, but which instead raises errors in judgment and is, in truth, an appeal. An appeal and a special civil action for certiorari are, after all, not interchangeable remedies. 10

Plainly, the CA committed no reversible error in this regard.

Even if we were to be liberal in the application of procedural rules in this instance and pass upon the substantive issues, We fail to find any sufficient cause to hold the respondent company for illegal dismissal.

As regards her preventive suspension, the petitioner claimed that mere extension of her preventive suspension beyond the maximum period already amounted to constructive dismissal.

We disagree.

In Agcolicol, Jr. v. Casiño, 11 We said:

An employee is considered to be constructively dismissed from service if an act of clear discrimination, insensibility or disdain by an employer has become so unbearable to the employee as to leave him or her with no option but to forego with his or her continued employment.

From said definition, it can be gathered that various situations, whereby the employee is intentionally placed by the employer in a situation which will result in the former's being coerced into severing his ties with the latter, can result in constructive dismissal. One such situation is where an employee is preventively suspended pending investigation for an indefinite period of time.

At this point it is well to note that not all preventive suspensions are tantamount to constructive dismissal. The employer's right to place an employee under preventive suspension is recognized in Rule XXIII, Implementing Book V of the Omnibus Rules Implementing the Labor Code. 12 x x x

Preventive suspension is justified where the employee's continued employment poses a serious and imminent threat to the life or property of the employer or of the employee's co-workers. 13 It may be legally imposed against an employee whose alleged violation is the subject of an investigation. The purpose of preventive suspension is to prevent the employee from causing harm or injury to the company as well as to his fellow employees. 14

In here, We find the petitioner's extended suspension as justified. The investigations conducted by the respondent company and the NBI lasted beyond thirty (30) days that resulted in the inadvertent extension of the petitioner's suspension. Note herein, that the petitioner, as Assistant Restaurant Manager, had access to cash sales as well as other properties of the store she was assigned in. She held a position of responsibility which necessarily required the full trust and confidence from her employer.

Nonetheless, the Court agrees with the NLRC that the respondents should be sanctioned for the period corresponding to the extension of the preventive suspension by directing them to pay the petitioner her salary from March 14 to April 12, 2005 and the amount of P1,000.00 as indemnity in keeping with law and jurisprudence. 15

Anent the petitioner's argument that she had been constructively dismissed since she was asked to resign and threatened with demotion, we cannot give credence to the same. The NLRC correctly ruled that it is not an unlawful practice to ask an erring employee to resign. In Central Azucarera de Bais, Inc. v. Siason, 16 this Court has held that: ETHIDa

It is not uncommon that an employee is permitted to resign to avoid the humiliation and embarrassment of being terminated for just cause after the exposure of her malfeasance. It is settled that there is nothing reprehensible or illegal when the employer grants the employee a chance to resign and save face rather than smear the latter's employment record. 17

Neither can We declare herein that petitioner was demoted. As the NLRC had aptly observed, there was no showing that the petitioner was given a position lower than Assistant Manager or that there was a decrease in her pay. The records only bear that certain fiduciary duties were withheld from her in light of the nature of the charge against her but without any demotion in rank or diminution of benefits. 18

Fair evidentiary rules dictate that before employers are burdened to prove that they did not commit illegal dismissal, it is incumbent upon the employee to first establish by substantial evidence the fact of his or her dismissal. It is an age-old rule that the one who alleges a fact has the burden of proving it and the proof should be clear, positive and convincing. Mere allegation is not evidence. 19

The NLRC had pertinently observed that there had been no indication that the respondent had notified the petitioner that she was terminated from office or that it had prevented the petitioner from returning to work after her alleged April 12, 2005 conversation with respondent Ang. 20 Plainly, the petitioner failed to prove that she had been dismissed by the respondents.

Accordingly, where there is no dismissal, legal or illegal, no retribution nor compensation to the employee involved is due from the employer. 21 Thus, the NLRC did not err in deleting the Labor Arbiter's award of separation pay and damages. The only monetary claims that can be awarded are those that were actually owing to the employee. 22 Accordingly, the petitioner is entitled to her earned but unpaid salary and her prorated 13th month pay, apart from her salary and the indemnity to be paid for the extension of her preventive suspension. Thus, the NLRC's modification of the Labor Arbiter's monetary awards is sustained.

WHEREFORE, the Court DENIES the present petition and AFFIRMS the Court of Appeals decision dated September 13, 2010 and resolution dated February 7, 2011 in CA-G.R. SP No. 102875. No pronouncement as to costs of suit.

SO ORDERED."

Very truly yours,

(SGD.) LIBRADA C. BUENADivision Clerk of Court

 

Footnotes

1.Rollo, pp. 31-39; penned by Associate Justice Antonio L. Villamor, with Associate Justice Jose C. Reyes, Jr. (now a Member of this Court), and Associate Justice Amy C. Lazaro-Javier, concurring.

2.Id. at 102-103.

3.Id. at 123-124.

4.Id. at 32-34.

5.Id. at 100-101.

6.Id. at 112-113.

7.Id. at 37-38.

8. G.R. No. 194944, September 18, 2017, 840 SCRA 37.

9.Id. at 53-54.

10.G.V. Florida Transport, Inc. v. Tiara Commercial Corp., G.R. No. 201378, October 18, 2017, 842 SCRA 576, 592.

11. G.R. No. 217732, June 15, 2016, 793 SCRA 692.

12.Id. at 705-706.

13. Artificio v. National Labor Relations Commission, G.R. No. 172988, July 26, 2010; 625 SCRA 435, 444.

14. Mandapat v. Add Force Personnel Services, Inc., G.R. No. 180285, July 6, 2010, 624 SCRA 155, 162.

15. JRS Business Corporation v. National Labor Relations Commission, G.R. No. 108891, July 17, 1995, 246 SCRA 445, 450.

16. G.R. No. 215555, July 29, 2015, 764 SCRA 494.

17. Id. at 503.

18. Rollo, p. 108.

19. Noblejas v. Italian Maritime Academy Phils., Inc., G.R. No. 207888, June 9, 2014, 725 SCRA 570, 579.

20. Rollo, p. 111.

21. Arc-Men Food Industries Corporation v. National Labor Relations Commission, G.R. No. 127086, August 22, 2002, 387 SCRA 560, 568.

22. Maria De Leon Transportation, Inc. v. Macuray, G.R. No. 214940, June 6, 2018.