Salvador v. Saint Nicolas Security & Investigation Agency, Inc.

THIRD DIVISION

[G.R. No. 229384. July 28, 2021.]

FERDINAND D. SALVADOR, petitioner, vs.SAINT NICOLAS SECURITY & INVESTIGATION AGENCY, INC./DIOSDADO S. LABARENTOS and NATIONAL GRID CORPORATION OF THE PHILIPPINES/HENRY SY, respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, Third Division, issued a Resolution datedJuly 28, 2021, which reads as follows: HTcADC

"G.R. No. 229384 (Ferdinand D. Salvador, Petitioner, v. Saint Nicolas Security & Investigation Agency, Inc./Diosdado S. Labarentos and National Grid Corporation of the Philippines/Henry Sy, Respondents.) — In this Petition for Review on Certiorari1 petitioner Ferdinand Salvador assails the Resolutions dated 02 August 2016 2 and 16 January 2017 3 promulgated by the Court of Appeals (CA) in CA-G.R. SP No. 145049. The CA found no grave abuse of discretion on the part of the National Labor Relations Commission (NLRC) which declared that petitioner Ferdinand Salvador (petitioner) was not illegally dismissed.

Antecedents

Petitioner was hired as a security guard by respondent Saint Nicolas Security Agency, Inc. (SNSAI) in April 2010 and was assigned to respondent National Grid Corporation of the Philippines' (NGCP) plants in Pampanga and Bulacan. He received the following monthly salary rates during the duration of his employment:

YEAR	MONTHLY RATE
2010	Php292.00
2011	Php302.00
2012	Php306.00
2013	Php504.00 4

In October 2013, NGCP discovered that four (4) boxes, or 120 pieces, of HP ink cartridges were missing from its supplies. It informed SNSAI of said incident prompting the latter to conduct an investigation. Accordingly, SNSAI, through a Memorandum dated 11 October 2013, recalled petitioner and two (2) other security guards who were assigned to the area where the suspected pilferage occurred and asked them to report to the headquarters pending result of the investigation. Said security guards were also asked to submit written statements regarding the incident but only petitioner failed to do so. Since petitioner's colleagues were able to sufficiently air their side, they were later reinstated to their former work albeit in another area of assignment. 5

Meanwhile, instead of submitting a written explanation, petitioner filed a complaint for constructive dismissal with money claims against respondents on 30 January 2014. 6 During the course of conciliation proceedings, or on 04 February 2014, SNSAI sent petitioner a letter declaring him to be on Absent Without Official Leave (AWOL) and instructing him to report to the office for possible reactivation of duty. 7

According to petitioner, he was illegally dismissed by SNSAI, NGCP and Diosdado S. Labarentos (collectively, respondents) since he was neither informed of the result of the investigation nor was he advised to report back to work. Moreover, he was not paid the wage rate mandated by law and was not regularly paid his overtime pay, holiday pay, and service incentive leave pay. He also failed to receive his 13th month pay for the year 2013. 8

For its part, SNSAI argued that it did not dismiss petitioner from employment but merely relieved him temporarily from his post pending result of the investigation on the pilferage incident. It also submitted its payrolls and vouchers to prove payment to petitioner of his legally mandated wages and benefits. 9

As for NGCP, it denied being the employer of petitioner and presented a contract for security services it entered into with SNSAI. It also presented evidence on the presence of the elements of the four-fold test between SNSAI and petitioner. 10

Ruling of the Labor Arbiter

The Labor Arbiter (LA), in a Decision dated 26 August 2015, 11 dismissed petitioner's complaint for lack of merit, to wit:

WHEREFORE, premises considered, let this case be, as it is hereby ordered DISMISSED WITH PREJUDICE for lack of merit.

All the money claims, as well as attorney's fees raised by the complainant on his complaint are likewise ordered DISMISSED for lack of evidence and merit.

SO ORDERED. 12

According to the LA, SNSAI is the employer of petitioner based on the evidence presented by the parties. It was SNSAI which hired petitioner and assigned him to work. at NGCP. The security agency, which holds the power to dismiss petitioner, was also the one paying his salaries and benefits. Hence, there is no merit in petitioner's claim that NGCP was his employer.

Further, petitioner was not dismissed, much more constructively, from his employment and was merely recalled from his post pending investigation of the pilferage incident. Said occurrence was, in fact, confirmed by NGCP. However, instead of reporting to SNSAI's headquarters and submitting a written explanation on the pilferage incident, petitioner chose to file a complaint as early as 20 December 2013, which was dismissed for improper venue. This was followed by the filing of the instant complaint on 30 January 2014, which was still within the six-month period allowed for petitioner to be on a floating status. 13

Decision of the NLRC

On 14 December 2015, the NLRC affirmed with modification the ruling of the LA, hence:

WHEREFORE, the Decision of the Labor Arbiter Bactin dated 26 August 2015 is affirmed with modification that Respondent Saint Nicolas Security Agency, Inc. is hereby ordered to:

1. Reinstate the complainant to his former position but without backwages; and

2. Pay the complainant the following:

a. 13th month pay for the year 2013 amounting to Eleven Thousand Four Hundred Seventy-Nine Pesos and 95/100 (Php11,479.95); and

b. The amount of Two Thousand Five Hundred Sixty-Two Pesos and 64/100 (Php2,562.64) as his salary differential from 2010 to 2013.

SO ORDERED. 14

The NLRC agreed with the LA's ruling that petitioner was not illegally dismissed as there was no proof presented supporting such claim other than petitioner's bare allegations. However, there is also no proof of petitioner's abandonment of work consisting of overt acts, which indicate his intention to sever his employment relationship with SNSAI. Since there is neither dismissal nor abandonment, the proper remedy would be the reinstatement of petitioner but without any payment of backwages. Anent the monetary claims of petitioner, the NLRC found there was underpayment of wages amounting to Php2,562.64 and failure to pay his 13th month pay for the year 2013 amounting to Php11,479.95. 15

Petitioner moved for reconsideration, which was partially granted by the NLRC by awarding him a differential of Php225.61 for this 13th month pay for 2011 and Php943.50 for his service incentive leave pay from January to May 2011.

Ruling of the CA

The CA, through its assailed Resolution dated 02 August 2016, dismissed the petition for certiorari filed by petitioner for lack of merit. It found no grave abuse of discretion on the part of the NLRC when the latter affirmed the ruling that there was no illegal dismissal since the conclusion was based on the evidence presented by the parties. 16

Petitioner's motion for reconsideration was denied by the CA through its Resolution dated 16 January 2017. 17

Issue

The primordial issue for resolution of the Court is whether respondent was constructively dismissed by petitioner.

Ruling of the Court

The Petition lacks merit.

On petitioner's charge of

This Court's power of review over labor cases in a petition for review under Rule 45 of the Rules of Court is limited to the correctness of the CA's findings on the existence, or lack, of grave abuse of discretion committed by the NLRC. To justify the grant of an action for certiorari, it must be shown that the NLRC gravely abused the discretion conferred upon it. In labor disputes, grave abuse of discretion may be ascribed to the NLRC when its findings and conclusions are not supported by substantial evidence, or that amount of relevant evidence which a reasonable mind might accept as adequate to justify a conclusion. 18 Hence, if the NLRC's ruling is clearly in accord with the evidence and applicable law and jurisprudence, then no grave abuse of discretion exists and the CA should deny the petition.

In this case, the Court finds no error in the CA's resolution finding no grave abuse of discretion on the part of the NLRC as the latter's decision is indeed supported by the evidence on record. In cases involving security guards, a relief or recall order in itself does not sever the employment relationship between a security guard and his agency. An employee has the right to security of tenure, but this does not give him such a vested right in his position as would deprive the company of its prerogative to recall him from his post or change his assignment depending on the needs of the client. 19 Accordingly, a security guard may be placed on "floating status" or "temporary off-detail" based on a valid exercise of management prerogative for a period of no more than six months. When the floating status lasts for more than six months, the employee may be considered to have been constructively dismissed. 20

Records show that petitioner was recalled from his post on 11 October 2013 pending investigation of a pilferage incident in NGCP. He was asked to report to SNSAI's headquarters and submit a written explanation on the matter. Instead of following SNSAI's directives, petitioner instantly filed a complaint on 20 December 2013, which was dismissed for improper venue. This was followed by the filing of the instant complaint on 30 January 2014, which was still within the six-month period allowed for petitioner to be on a floating status. Clearly, petitioner's claim for constructive dismissal was premature.

Moreover, SNSAI sent a letter dated 4 February 2014 to petitioner instructing him to report to the office for possible reactivation of duty. It must be emphasized that by then, petitioner had yet to give an account on the pilferage incident in NGCP as previously instructed. Conversely, his colleagues, who were also recalled from duty due to the same cause submitted their written explanation on the matter and were thereafter reinstated to their post albeit in another area. This shows the lack of bad faith on the part of SNSAI in recalling petitioner and his colleagues. Indeed, SNSAI was just following basic protocol in its investigation of the reported incident of the client. Petitioner's insistence on being constructively dismissed just because he was not immediately reassigned has no legal or jurisprudential basis. Considering that a security guard is only deemed constructively dismissed when he is sidelined from duty for a period of six (6) months, 21 the Court sees no reason to overturn the consistent ruling of the LA, the NLRC and the CA dismissing the claim of constructive dismissal for lack of merit.

On respondents' claim of

The Court agrees with the NLRC and the CA that petitioner did not abandon his work. To constitute abandonment, there must be a clear and deliberate intent to discontinue one's employment without any intention of returning. Two (2) elements must concur: (1) the failure to report for work or absence without valid or justifiable reason, and (2) a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by overt acts. 22

Here, petitioner immediately filed a complaint for constructive dismissal praying for his reinstatement with full backwages along with his monetary claims. The immediate filing of a complaint for illegal dismissal, more so when it includes a prayer for reinstatement, has been held to be totally inconsistent with a charge of abandonment, which is a matter of intention incapable of being lightly inferred or legally presumed from certain equivocal acts. 23 Mere absence or failure to report for work, even after a notice to return work has been served, is not enough to amount to an abandonment of employment. 24 Thus, with only petitioner's failure to report for work as basis for its claim, respondents failed to show any overt act of petitioner indicating his intent to sever his employment with SNSAI.

On the proper remedy and awards

In cases where there is both an absence of illegal dismissal on the part of an employer and an absence of abandonment on the part of employees, the remedy is reinstatement but without backwages. When the employee's failure to work was occasioned neither by his abandonment nor by a termination, the burden of economic loss is not rightfully shifted to the employer and each party must bear his own loss. If petitioner chooses not to return to work, he must then be considered as having resigned from employment. 25 Hence, the CA correctly ordered for the reinstatement of petitioner without backwages.

Moreover, petitioner cannot be given separation pay in lieu of reinstatement. In Leopard Security and Investigation Agency v. Quitoy, 26 the Court discussed the inconsistency of an award of separation pay with the lack of finding of an illegal dismissal, to wit:

As a relief granted in lieu of reinstatement, however, it consequently goes without saying that an award of separation pay is inconsistent with a finding that there was no illegal dismissal. Standing alone, the doctrine of strained relations will not justify an award of separation pay, a relief granted in instances where the common denominator is the fact that the employee was dismissed by the employer. Even in cases of illegal dismissal, the doctrine of strained relations is not applied indiscriminately as to bar reinstatement, especially when the employee has not indicated an aversion to returning to work or does not occupy a position of trust and confidence in or has no say in the operation of the employer's business. Although litigation may also engender a certain degree of hostility, it has likewise been ruled that the understandable strain in the parties' relations would not necessarily rule out reinstatement which would, otherwise, become the rule rather than the exception in illegal dismissal cases. (Emphasis supplied)

Likewise, We affirm the monetary awards given to respondent consisting of his 13th month pay for 2013, his salary differentials, 13th month pay differential for 2011 and service incentive leave pay differential from January to May 2011. These were awarded after a painstaking review of the payroll and vouchers submitted by SNSAI.

However, petitioner should also be entitled to attorney's fees at ten percent (10%) of the total monetary award. Attorney's fees may be recovered when an employee's wages have been unlawfully withheld or there is a showing that lawful wages were not paid accordingly, 27 as in this case. All monetary awards shall earn interest at the rate of six percent (6%) per annum from the finality of this Resolution until fully paid. 28

Lastly, the Court agrees with petitioner's argument that NGCP should be held solidarily liable with SNSAI for the amount of underpaid wages and benefits. In Government Service Insurance System v. National Labor Relations Commission, 29 the Court held therein petitioner, as an indirect employer, solidarily liable with the complainant's agency for payment of salary differentials and unpaid wages notwithstanding the lack of an employer-employee relationship between petitioner and complainant pursuant to the Labor Code.

Similarly, the Court holds NGCP solidarily liable for the monetary awards given to petitioner in accordance with the provisions of law. Indeed, when NGCP contracted the services of SNSAI, it became an indirect employer of petitioner accountable for any underpayment of wages and benefits based on the following provisions of the Labor Code, thus:

ARTICLE 106. Contractor or Subcontractor. — Whenever an employer enters into a contract with another person for the performance of the former's work, the employees of the contractor and of the latter's subcontractor, if any, shall be paid in accordance with the provisions of this Code.

In the event that the contractor or subcontractor fails to pay the wages of his employees in accordance with this Code, the employer shall be jointly and severally liable with his contractor or subcontractor to such employees to the extent of the work performed under the contract, in the same manner and extent that he is liable to employees directly employed by him.

xxx xxx xxx

ARTICLE 107. Indirect Employer. — The provisions of the immediately preceding article shall likewise apply to any person, partnership, association or corporation which, not being an employer, contracts with an independent contractor for the performance of any work, task, job or project.

xxx xxx xxx

ARTICLE 109. Solidary Liability. — The provisions of existing laws to the contrary notwithstanding, every employer or indirect employer shall be held responsible with his contractor or subcontractor for any violation of any provision of this Code. For purposes of determining the extent of their civil liability under this Chapter, they shall be considered as direct employers. 30

WHEREFORE, the petition is DENIED. The Resolutions dated 02 August 2016 and 16 January 2017 promulgated by the Court of Appeals in CA-G.R. SP No. 145049 are AFFIRMED with MODIFICATION in that petitioner is additionally entitled to attorney's fees at ten percent (10%) of the total monetary award. All monetary awards shall earn interest at the rate of six percent (6%) per annum computed from the finality of this Resolution until fully paid.

Respondent National Grid Corporation of the Philippines is declared solidarily liable with Saint Nicolas Security & Investigation Agency, Inc., to pay petitioner his monetary awards.

SO ORDERED." (Lopez, J., J., designated additional Member of the Third Division per Special Order No. 2834 dated 15 July 2021.)

By authority of the Court:

(SGD.) MISAEL DOMINGO C. BATTUNG IIIDivision Clerk of Court

Footnotes

1.Rollo, pp. 13-42.

2.Id. at 44-46; penned by Associate Justice Normandie B. Pizarro and concurred in by Associate Justices Samuel H. Gaerlan (now, a Member of this Court) and Ma. Luisa C. Quijano-Padilla of the Thirteenth (13th) Division, Court of Appeals, Manila.

3.Id. at 48-49.

4.Id. at 234-235.

5.Id. at 206, 209, 235.

6.Id. at 78-79, 235.

7.Id. at 199, 235.

8.Id. at 235-236.

9.Id. at 236.

10.Id. at 237.

11.Id. at 203-217.

12.Id. at 217.

13.Id. at 211-216.

14.Id. at 214.

15.Id. at 237-243.

16.Id. at 45.

17.Id. at 48-49.

18.Symex Security Services, Inc. v. Rivera, Jr., 820 Phil. 653 (2017), G.R. No. 202613, 08 November 2017 [Per J. Caguioa].

19.Megaforce Security and Allied Services, Inc. v. Lactao, 581 Phil. 100 (2008), G.R. No. 160940, 21 July 2008 [Per J. Leonen].

20.Padilla v. Airborne Security Service, Inc., 821 Phil. 482 (2017), G.R. No. 210080, 22 November 2017 [Per J. Leonen].

21.Leopard Security and Investigation Agency v. Quitoy, 704 Phil. 449 (2013), G.R. No. 186344, 20 February 2013 [Per J. Perez]; Superior Maintenance Services, Inc. v. Bermeo, G.R. No. 203185, 05 December 2018 [Per J. A.B. Reyes, Jr.].

22.Supra note 18.

23.Id.

24.Robustan, Inc. v. Court of Appeals, G.R. No. 223854, 15 March 2021 [Per J. Leonen].

25.Santos, Jr. v. King Chef, G.R. No. 211073, 25 November 2020 [Per J. Hernando]; Samillano v. Valdez Security and Investigation Agency, Inc., G.R. No. 239396, 23 June 2020 [Per J. J.C. Reyes, Jr.].

26. Leopard Security and Investigation Agency v. Quitoy, supra note 21.

27.Cosue v. Ferritz Integrated Development Corp., 814 Phil. 77 (2017), G.R. No. 230664, 24 July 2017 [Per J. Tijam].

28.Nacar v. Gallery Frames, 716 Phil. 267 (2013), G.R. No. 189871, 13 August 2013 [Per J. Peralta].

29. 649 Phil. 538 (2010), G.R. No. 180045, 17 November 2010.

30. Labor Code of the Philippines, Presidential Decree No. 442 (Amended & Renumbered), 21 July 2015.