SECOND DIVISION
[G.R. No. 227814. April 18, 2018.]
STREAM INTERNATIONAL GLOBAL SERVICES PHILIPPINES, INC. [NOW CONVERGYS PHILIPPINES, INC.], petitioner,vs. CHARITY E. PIMENTEL, respondent.
NOTICE
Sirs/Mesdames :
Please take notice that the Court, Second Division, issued a Resolution dated18 April 2018which reads as follows: acEHCD
"G.R. No. 227814 (Stream International Global Services Philippines, Inc. [now Convergys Philippines, Inc.] vs. Charity E. Pimentel). — In labor cases, the Court is tasked with the delicate act of balancing the employee's right to security of tenure vis-á-vis the employer's right to freely exercise its management prerogatives. In some instances, the Court has carved out an exception to the rule that an employee who is illegally dismissed shall be entitled to the twin reliefs of reinstatement and payment of full backwages. Particularly, in cases where the illegally dismissed employee is not entirely blameless of the charge, the Court may reduce and limit the amount of backwages awarded.
This treats of the Motion for Reconsideration 1 filed by petitioner-movant Stream International Global Services Philippines, Inc. (Stream), seeking the reconsideration of this Court's Resolution 2 dated June 5, 2017, which affirmed the Decision 3 dated March 31, 2016, and Resolution 4 dated September 22, 2016 of the Court of Appeals (CA) in CA-G.R. SP No. 139702, declaring respondent Charity E. Pimentel (Pimentel) to have been illegally dismissed, and thereby entitled to reinstatement and full backwages.
The Antecedents
Stream is a corporation duly organized under the laws of the Philippines engaged in the call center business.
On April 16, 2007, Stream hired Pimentel as a Quality Representative at its Makati office.
On August 23, 2013, Pimentel sent an email to her immediate supervisor Ashkie Agregado (Agregado) asking permission to take a prolonged leave of absence from August 1, 2013 until October 31, 2013, in preparation for the October 2013 Bar Examinations.
On September 5, 2013, Agregado informed Pimentel that her request was denied. Consequently, Agregado ordered Pimentel to return to work on September 9, 2013. However, Pimentel did not respond to Agregado's email and did not report back for work.
Meanwhile, on November 4, 2013, immediately after the Bar Examinations, Pimentel reported back for work. To her surprise, the security guard refused her entry and told her to surrender her identification card, as she was no longer an employee of Stream.
This prompted Pimentel to file a complaint for Illegal Dismissal 5 before the Labor Arbiter (LA).
On July 31, 2014, the LA dismissed Pimentel's complaint for illegal dismissal. The LA concluded that Pimentel was guilty of abandonment, which constituted a just cause for her dismissal from employment. 6
The ruling of the LA was affirmed by the National Labor Relations Commission (NLRC) in its Decision 7 dated November 28, 2014.
On March 31, 2016, the CA reversed the findings of the LA and the NLRC. The CA found that Pimentel was not guilty of abandoning her employment. The CA ratiocinated that Pimentel's actions negate an intention to sever her employment with Stream. In fact, she sought permission to take a leave of absence explaining her intention to prepare for the Bar Examinations, and consistent with her request, she immediately reported back for work after taking the said examination. Moreover, upon learning that her services were terminated, Pimentel filed a Complaint for illegal dismissal and sought for her reinstatement. According to the CA, these acts of Pimentel belie an intention to abandon her employment. Consequently, the CA ordered Stream to immediately reinstate Pimentel and pay her backwages beginning November 4, 2013, the date when Pimentel attempted to report for work. The CA likewise ordered the payment of Pimentel's 13th month pay for the year 2013, and her salaries for the period of July 15, 2013 to July 31, 2013. 8 Lastly, the CA awarded attorney's fees finding that Pimentel was forced to file an action to recover her lawful wages and other benefits. The dispositive portion of the CA ruling reads:
WHEREFORE, Judgment is rendered declaring that [Pimentel] had been illegally dismissed from her employment. [Stream] is directed to reinstate [Pimentel] to her former or equivalent position and to pay her backwages computed from November 4, 2013 until her actual reinstatement.
[Stream] is further ordered to pay [Pimentel] her 13th month pay for the year 2013, her salaries corresponding to the period July 15, 2013 to July 31, 2013, as well as attorney's fees equivalent to ten percent (10%) of the monetary award.
SO ORDERED.9
Dissatisfied with the ruling, Stream filed a Motion for Reconsideration, which was denied by the CA in its Resolution 10 dated September 22, 2016.
Undeterred, Stream filed a Petition for Review on Certiorari11 under Rule 45 of the Revised Rules of Court.
On June 5, 2017, the Court issued a Resolution 12 dismissing the Petition due to lack of any reversible error that would warrant the exercise of the Court's appellate jurisdiction.
Aggrieved, Stream filed the instant Motion for Reconsideration. 13
The Issue
The essential issue for the Court's resolution is whether or not its Resolution dated June 5, 2017 should be reconsidered.
In seeking the reversal of the Court's resolution, Stream contends that the CA never acquired jurisdiction over the Petition for Certiorari considering that Pimentel failed to comply with the mandatory requirements under Rule 65 of the Rules of Court by submitting mere photocopies of the assailed NLRC decision and resolution, as well as a defective Verification and Certification of Non-Forum Shopping. Moreover, Stream maintains that Pimentel was dismissed for a just cause, as she deliberately and without valid reason failed to report for work. Alternatively, Stream prays for the deletion of backwages in favor of Pimentel. Stream points out that it exercised good faith in terminating Pimentel from employment and that the latter's infractions warrant the deletion of the award of backwages. HSAcaE
On the other hand, Pimentel maintains that the CA did not commit any reversible error that would warrant a reconsideration of its decision. 14
Ruling of the Court
The Motion for Reconsideration is partly granted.
As a general rule, the Court is not a trier of facts and does not normally embark in the evaluation of evidence adduced before the lower tribunals. However, this rule allows for exceptions. One of these is when the findings of fact of the quasi-judicial agencies concerned, are conflicting or contradictory with those of the CA. When there is a variance in the factual findings, it is incumbent upon the Court to re-examine the facts once again. 15
At the outset, Stream raises the procedural flaw that the CA erred in not dismissing the petition for certiorari despite the following infirmities, such as: (i) the lack of certified true copies of the NLRC decision and resolution (only photocopies were attached to the petition); (ii) a defect in the Verification and Certification of Non-Forum Shopping, considering that the jurat thereof did not contain the required evidence of Pimentel's identity; and (iii) the absence of an Affidavit of Service in the petition. 16
It is worth noting that Pimentel submitted the certified true copies of the NLRC decision and resolution, the Affidavit of Service, and the Verification and Certification of Non-Forum Shopping, albeit belatedly. Coupled with the justifiable excuse proffered by Pimentel, this constitutes substantial compliance with the rules in filing petitions for certiorari. Furthermore, the Court exercises caution in dismissing a case on a mere technicality. In Anib v. Coca-Cola Bottlers Philippines, Inc. and/or Feliciano, 17 the Court gave due course to the petition despite the petitioner's failure to attach a certified true copy of the NLRC decision, ordaining that:
Such mere technicality should not be allowed to impede petitioner's call for a just review of the decision in the illegal dismissal case, ordering the payment of separation pay in lieu of reinstatement.
It is well-settled that the application of technical rules of procedure may be relaxed to serve the demands of substantial justice, particularly in labor cases. Labor cases must be decided according to justice and equity and the substantial merits of the controversy. Procedural niceties should be avoided in labor cases in which the provisions of the Rules of Court are applied only in suppletory manner. Indeed, rules of procedure may be relaxed to relieve a part of an injustice not commensurate with the degree of non-compliance with the process required. 18 (Citations omitted)
Proceeding to the merits of the case, the Court finds that the CA correctly declared that the dismissal of Pimentel was illegal, as she cannot be considered to have abandoned her employment.
Essentially, jurisprudence defines abandonment as the deliberate and unjustified refusal of an employee to resume his employment. 19 Abandonment constitutes a just cause for dismissal under Article 297, paragraph (b) 20 of the Labor Code. 21 However, to prove abandonment, it is imperative for the employer to prove the concurrence of the following elements, namely: (i) the employee's failure to report for work or absence without valid or justifiable reason; and (ii) a clear intention to sever the employer-employee relationship. The employee's absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore. 22
Thus, it bears stressing that mere absence or failure to report for work, even after notice to return, is not tantamount to abandonment. 23 Rather, to constitute abandonment, there must be clear proof of a deliberate and unjustified intent to sever the employer-employee relationship. The operative factor being the employee's ultimate act of putting an end to his employment. 24
In the case at bar, other than Pimentel's failure to report for work, Stream failed to present any evidence which would show that the former intended to abandon her work. No proof was shown to establish a clear and deliberate intent on Pimentel's part to discontinue her employment without any intention of returning. It bears reiterating that the fact that the employee incurred absences is not in itself sufficient to constitute a charge of abandonment. Rather, there must likewise be substantial evidence of overt acts clearly showing an intention to sever the employer-employee relationship. Stream failed to present proof of such acts.
As a matter of fact, Pimentel's actions evince a desire to continue her employment with Stream. Particularly, Pimentel sought permission to take a prolonged leave of absence to prepare for the Bar examinations. The fact that Pimentel sought prior permission shows a desire to maintain her employment with Stream. Otherwise, Pimentel could have easily tendered her resignation letter, if she had no desire of returning to work. More so, her interest in maintaining her employment is evident from the fact that she returned to work immediately after taking the Bar examinations.
Moreover, upon learning that her services have been terminated, Pimentel immediately filed a complaint for illegal dismissal and sought for her reinstatement. Having taken steps to protest her dismissal, Pimentel cannot be logically said to have abandoned her work. Her filing of such complaint and her consistent plea for reinstatement are proof of her desire to return to work. More so, Pimentel untiringly protested her dismissal from the LA to the CA, which clearly evinces a firm resolve to be reinstated. It bears stressing that an employee's act of immediately filing a complaint for illegal dismissal, especially when coupled with a prayer for reinstatement is totally inconsistent with a charge of abandonment. 25
Additionally, at the time of her dismissal, Pimentel had rendered six and a half years of loyal and dedicated service with Stream. In fact, Pimentel received various accolades for achievement in center excellence; 26 excellence and success in the performance of work in 2012; 27 having the most number of assessments in 2011; 28 and achieving the highest scores in RRT in 2011. 29 Needless to say, Pimentel provided valuable service for Stream. With these factors in mind, dismissal would be too harsh a sanction for Pimentel's infraction.
It is an elementary principle in labor law that an illegally dismissed employee is entitled to reinstatement and payment of full backwages. 30 However, in certain cases, "the Court has carved out an exception to the foregoing rule and thereby ordered the reinstatement of the employee without backwages on account of the following: (i) the fact that the dismissal of the employee would be too harsh of a penalty; and (ii) that the employer was in good faith in terminating the employee." 31 In Itagon-Suyoc Mines v. NLRC, 32 the Court stressed that the ends of social and compassionate justice would therefore be served if the employee is reinstated but without backwages in view of the employer's good faith.
Remarkably, in Pepsi Cola Products Philippines, Inc. v. Molon, et al., 33 Remandaban, an employee of Pepsi-Cola failed to comply with the return-to-work order issued by the Secretary of Labor. This prompted Pepsi-Cola to dismiss Remandaban. The Court held that the dismissal was too harsh of a penalty, and thus ordered Remandaban's reinstatement. However, the Court deleted the award of backwages, upon finding that Pepsi-Cola was in good faith in dismissing Remandaban. Citing the case of Cruz, et al. v. Minister of Labor and Employment, et al., 34 the Court explained that the withholding of backwages is a commensurate punishment for the employee's infraction, viz.: HESIcT
The Court is convinced that petitioner's guilt was substantially established. Nevertheless, we agree with respondent Minister's order of reinstating petitioner without backwages instead of dismissal which may be too drastic. Denial of backwages would sufficiently penalize her for her infractions. The bank officials acted in good faith. They should be exempt from the burden of paying backwages. The good faith of the employer, when clear under the circumstances, may preclude or diminish recovery of backwages. Only employees discriminately dismissed are entitled to backpay. x x x.35 (Emphasis Ours)
Likewise, in Dolores v. NLRC, 36 Dolores, an employee of San Miguel Corporation asked permission to take a leave of absence for two months to take French lessons in Paris, France. San Miguel granted Dolores a limited leave of absence of one month and required her to report back for work upon the lapse of one month. Dolores ignored San Miguel's directive. Treating Dolores' infraction as a violation of the company's rules on attendance, San Miguel terminated Dolores from her employment. The Court held that the dismissal was too harsh, and thereby ordered Dolores' reinstatement. However, the Court awarded limited backwages equivalent to two years, recognizing that Dolores was equally at fault for defying the company's order. The Court explained that the award of full backwages would have the effect of rewarding rather than punishing Dolores for her offense. 37
Similarly, in Procter and Gamble Philippines v. Bondesto, 38 Bondesto, a production technician of Procter and Gamble failed to report for work for 35 days. Consequently, Procter and Gamble dismissed Bondesto. The Court held that the penalty of dismissal was too harsh, and thereby ordered Bondesto's reinstatement. The Court opined that his prolonged absences are insufficient to amount to serious misconduct or gross habitual negligence. However, the Court awarded limited backwages equivalent to one year, observing that some of Bondesto's absences were not wholly justified. 39
Applying the aforementioned jurisprudential tenets to the case at bar, the Court finds that (i) the penalty of dismissal was too severe a penalty for Pimentel's failure to comply with the return-to-work order; however, (ii) Stream was in good faith when it dismissed Pimentel for transgressing its policy on incurring absences. These concurring circumstances trigger the application of the exception to the rule on backwages as enunciated in the above-cited cases. Consequently, the Court finds it proper to accord the same disposition and thus directs the award of limited backwages equivalent to one year in favor of Pimentel.
Anent Pimentel's monetary claims, the Court finds that Stream failed to prove that it had paid Pimentel her 13th month pay and salary for the period of July 15, 2013 to July 31, 2013. It bears stressing that the general rule is that the burden rests on the employer to prove payment, rather than on the employee to prove non-payment. 40 It is incumbent upon the employer to prove the payment of the employee's wages, as the pertinent personnel files, payrolls, records, remittances, and other similar documents, which will show that the employee's salary has in fact been paid, are not in the possession of the worker, but in the custody and absolute control of the employer. 41 Stream failed to adduce proof of payment.
Finally, all amounts due to Pimentel shall be subject to attorney's fees equivalent to ten percent (10%) of the total monetary award, as Pimentel was forced to litigate and thus incurred expenses to defend her interest. 42
All told, in labor cases, the Court is tasked with the delicate act of balancing the employee's right to security of tenure vis-á-vis the employer's right to freely exercise its management prerogatives. To preserve such balance, the instant case warrants a departure from the general rule that an illegally dismissed employee is entitled to the twin reliefs of reinstatement and backwages. Considering that Pimentel was not entirely faultless, as she ignored Stream's e-mails and disregarded Stream's return-to-work order, Stream may be deemed to have acted in good faith in effecting her dismissal. Accordingly, the award of backwages in favor of Pimentel must be reduced. After all, in protecting the rights of the workers, the law does not authorize the oppression or sell-destruction of the employer. 43 Rather, "the constitutional and legal protection equally recognizes the employer's right and prerogative to manage its operation according to reasonable standards and norms of fair play." 44
WHEREFORE, the motion for reconsideration is PARTLY GRANTED. The Court's Resolution dated June 5, 2017 is hereby MODIFIED in that petitioner Stream International Global Services Philippines, Inc. (now Convergys Philippines, Inc.) is ordered to pay respondent Charity E. Pimentel the following amounts:
• Backwages equivalent to one (1) year counted from November 4, 2013;
• 13th month pay for the year 2013;
• Salaries corresponding to the period of July 15, 2013 to July 31, 2013; and
• Attorney's Fees equivalent to ten percent (10%) of the total monetary award.
The total monetary award shall further earn legal interest of six percent (6%) per annum from the finality of this Resolution until full satisfaction.
No further pleadings shall be entertained in this case. Let entry of judgment be issued immediately.
Very truly yours,
MA. LOURDES C. PERFECTODivision Clerk of CourtBy:(SGD.) TERESITA AQUINO TUAZONDeputy Division Clerk of Court
Footnotes
1.Rollo, pp. 369-403.
2.Id. at 367-368.
3. Penned by Associate Justice Mariflor P. Punzalan Castillo, with Associate Justices Florito S. Macalino and Zenaida T. Galapate-Laguilles, concurring; id. at 44-56.
4.Id. at 57-59.
5.Id. at 137-151.
6.Id. at 76-88.
7.Id. at 102-113.
8.Id. at 53-54.
9.Id. at 56.
10.Id. at 57-59.
11.Id. at 3-40.
12.Id. at 367-368.
13.Id. at 369-403.
14.Id. at 407-408.
15.General Milling Corporation v. Viajar, 702 Phil. 532, 540 (2013).
16.Rollo, pp. 374-378.
17. 642 Phil. 516 (2010).
18.Id. at 521-522.
19.Tan Brothers Corp. of Basilan City v. Escudero, 713 Phil. 392, 400-401 (2013), citing DUP Sound Phils. and/or Tan v. CA, et al., 676 Phil. 472, 481-482 (2011).
20. Article 282. Termination by employer. — An employer may terminate an employment for any of the following causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or duly authorized representative;
(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representatives; and
Other causes analogous to the foregoing.
21. Tan Brothers Corporation of Basilan City v. Escudero, supra note 19, CRC Agricultural Trading, et al. v. NLRC, et al., 623 Phil. 789, 798-799 (2009).
22. Tan Brothers Corporation of Basilan City v. Escudero, id., citing MSMG-UWP v. Hon. Ramos, 383 Phil. 329, 372 (2000).
23. Concrete Solutions, Inc./Primary Structures Corp., et al. v. Cabusas, 711 Phil. 477, 488-489 (2013), citing Samarca v. Arc-Men Industries, Inc., 459 Phil. 506, 516 (2003); Aliten v. U-Need Lumber and Hardware, 533 Phil. 213, 223 (2006).
24. Concrete Solutions, Inc./Primary Structures Corporation v. Cabusas, id. at 487, citing Hodieng Concrete Products v. Emilia, 491 Phil. 434, 439 (2005).
25. Baron Republic Theatrical, et al. v. Peralta, et al., 617 Phil. 464, 471 (2009), citing South Davao Dev't. Co., Inc., and/or Pacquiao, et al. v. Gamo, et al., 605 Phil, 604, 614 (2009); Megaforce Security and Allied Services, Inc., et al. v. Lactao, et al., 581 Phil. 100, 107 (2008); Mame v. CA, 549 Phil. 337, 344-345 (2007).
26. Rollo, p. 146.
27. Id. at 148.
28. Id. at 149.
29. Id. at 150.
30. Integrated Microelectronics, Inc. v. Pionilla, 716 Phil. 818, 823-824 (2013).
31. Id.
32. 202 Phil. 850, 856 (1982), cited in Integrated Microelectronics, Inc. v. Pionilla, id. at 824.
33. 704 Phil. 120 (2013).
34. 205 Phil. 14 (1983).
35. Id. at 18-19.
36. 282 Phil. 360 (1992).
37. Id. at 365.
38. 468 Phil. 932 (2004).
39. Id. at 943.
40. Heirs of Manuel H. Ridad, et al. v. Gregorio Araneta University Foundation, 703 Phil. 531, 538 (2013), citing De Guzman v. NLRC, 564 Phil. 600, 614-615 (2007), citing further Mayon Hotel & Restaurant v. Adana, 497 Phil. 892, 923-924 (2005); Sevillana v. I.T. (International) Corp., 408 Phil. 570, 588 (2001).
41.Heirs of Manuel H. Ridad, et al. v. Gregorio Araneta University Foundation, id.
42. Tangga-an v. Phil. Transmarine Carriers, Inc. et al., 706 Phil. 339, 353-354 (2013).
43. Imasen Philippine Manufacturing Corporation v. Alcon, et al., 746 Phil. 172, 178-179 (2014).
44. Id. at 179.