THIRD DIVISION G.R. No.

179001 August 28, 2013

MZR INDUSTRIES, MARILOU R. QUIROZ AND LEA TIMBAL, PETITIONERS, vs. MA EN !OLAMBOT, RESPONDENT. DECISION "ERALTA, J.: This is a Petition for Review on Certiorari under Rule 4 of the Rules of Court see!in" the reversal of the De#ision$ dated %a& $', ())' and Resolution( dated *ul& ( , ())' of the Court of +,,eals in C+-..R. SP No. /044 , reversin" the De#ision dated O#to1er 2$, ())3 2 and Resolution4 dated De#e41er ($, ())3 of the National 5a1or Relations Co44ission 6N5RC7 whi#h set aside the De#ision dated +,ril (0, ())3 of the 5a1or +r1iter. The fa#ts are as follows8 On 9e1ruar& 0, ())), ,etitioner %arilou :uiro;, Owner and Vi#e-President for 9inan#e and %ar!etin" of %<R, hired res,ondent %a=en Cola41ot 6Cola41ot7 as 4essen"er. Cola41ot>s duties and res,onsi1ilities in#luded field, 4essen"erial and other liaison wor!. However, 1e"innin" ())(, Cola41ot>s wor! ,erfor4an#e started to deteriorate. Petitioners issued several 4e4oranda to Cola41ot for ha1itual tardiness, ne"li"en#e, and violations of offi#e ,oli#ies. 3 He was also "iven written warnin"s for insu1ordination #o44itted on +u"ust (', ())2 and Se,te41er $$-$(, ())2?' on Se,te41er $3, ())2 for ne"li"en#e #aused 1& #areless handlin" of #onfidential offi#e do#u4ents?0 on Se,te41er ((, ())4 for leavin" his ,ost without ,ro,er turnover? / and, on O#to1er 4, ())4 for insu1ordination.$) Petitioners #lai4ed that des,ite written warnin"s for re,eated tardiness and insu1ordination, Cola41ot failed to 4end his wa&s. Hen#e, in a %e4orandu4$$ dated O#to1er ( , ())4 issued 1& ,etitioner 5ea Ti41al 6Ti41al7, %<R>s +d4inistrative %ana"er, Cola41ot was "iven a noti#e of sus,ension for insu1ordination and ne"li"en#e. +"ain, in a %e4orandu4$( dated Nove41er ( , ())4, Cola41ot was sus,ended fro4 Nove41er (3, ())4 until De#e41er 3, ())4 for insu1ordination. +lle"edl&, Cola41ot diso1e&ed and left the offi#e des,ite #lear instru#tions to sta& in the offi#e 1e#ause there was an i4,ortant 4eetin" in ,re,aration for a ver& i4,ortant a#tivit& the followin" da&. Petitioners #lai4ed the& waited for Cola41ot to re,ort 1a#! for wor! on De#e41er ', ())4, 1ut the& never heard fro4 hi4 an&4ore. 5ater, ,etitioners were sur,rised to find out that Cola41ot had filed a #o4,laint for ille"al sus,ension, under,a&4ent of salaries, overti4e ,a&, holida& ,a&, rest da&, servi#e in#entive leave and $2th 4onth ,a&. On De#e41er $3, ())4, the #o4,laint was a4ended to ille"al dis4issal, ille"al sus,ension, under,a&4ent of salaries, holida& ,a&, servi#e in#entive ,a&, $2th 4onth ,a& and se,aration ,a&.$2 9or his ,art, Cola41ot narrated that he wor!ed as a 4essen"er for ,etitioners sin#e 9e1ruar& ())). That on Nove41er ())4, he was dire#ted to ta!e #are of the ,ro#essin" of a do#u4ent in Ro@as Aoulevard, Pasa& Cit&. Bhen he arrived at the offi#e around 3 to ' o>#lo#! in the evenin", he loo!ed for ,etitioner :uiro; to "ive the do#u4ents. The latter told hi4 to wait for her for a while. Bhen res,ondent finall& had the #han#e to tal! to :uiro;, she alle"edl& told hi4 that she is dissatisfied alread& with his wor!

,erfor4an#e. +fterwards, Cola41ot #lai4ed that he was 4ade to #hoose 1etween resi"nin" fro4 the #o4,an& or the #o4,an& will 1e the one to ter4inate his servi#es. He said he refused to resi"n. Cola41ot alle"ed that :uiro; 4ade hi4 si"n a 4e4orandu4 for his sus,ension, fro4 Nove41er (3 to De#e41er 3, ())4. +fter affi@in" his si"nature, :uiro; told hi4 that effe#tive De#e41er ', ())4, he is alread& dee4ed ter4inated. 5ater, on De#e41er (, ())4, res,ondent went 1a#! to the #o4,an& to loo! for Ti41al to "et his salar&. He #lai4ed that Ti41al as!ed hi4 to turn over his #o4,an& I.D. $4 Petitioners, however, insisted that while Cola41ot was sus,ended due to insu1ordination and ne"li"en#e, the& 4aintained that the& never ter4inated Cola41ot>s e4,lo&4ent. The& added that Cola41ot>s failure to re,ort for wor! sin#e De#e41er ', ())4 without an& a,,roved va#ation or si#! leave #onstituted a1andon4ent of his wor!, 1ut the& never ter4inated his e4,lo&4ent. Petitioners further e4,hasi;ed that even with Cola41ot>s filin" of the #o4,laint a"ainst the4, his e4,lo&4ent with %<R has not 1een ter4inated. Cola41ot, 4eanwhile, ar"ued that #ontrar& to ,etitionersC #lai4 that he a1andoned his =o1, he #lai4ed that he did not re,ort 1a#! to wor! after the e@,iration of his sus,ension on De#e41er 3, ())4, 1e#ause :uiro; told hi4 that his e4,lo&4ent was alread& ter4inated effe#tive De#e41er ', ())4. On +,ril (0, ())3, the 5a1or +r1iter rendered a De#ision, $ the dis,ositive ,ortion of whi#h reads8 BHERE9ORE, ,re4ises #onsidered, res,ondents are here1& de#lared "uilt& of I55E.+5 DIS%ISS+5 and here1& ORDERED to reinstate #o4,lainant to his for4er ,osition with full 1a#!wa"es fro4 date of dis4issal until a#tual reinstate4ent and 4oral and e@e4,lar& da4a"es in the su4 of P$)),))).)) and P ),))).)), res,e#tivel&. The #o4,utation of the =ud"4ent award 4ar!ed as +nne@ D+D is ,art and ,ar#el of this de#ision. SO ORDERED.$3 The 5a1or +r1iter held that there was no a1andon4ent as there was no deli1erate intent on the ,art of Cola41ot to sever the e4,lo&er-e4,lo&ee relationshi,. The 5a1or +r1iter li!ewise noted that Cola41ot should have 1een notified to return 1a#! to wor!, whi#h ,etitioner failed to do. +""rieved, ,etitioners a,,ealed the de#ision 1efore the N5RC. On O#to1er 2$, ())3, the N5RC rendered a De#ision,$' the dis,ositive ,ortion of whi#h reads as follows8 BHERE9ORE, ,re4ises #onsidered, the a,,eal filed 1& res,ondents is .R+NTED. The =ud"4ent of the 5a1or +r1iter dated +,ril (0, ())3 is here1& SET +SIDE and the Co4,laint is DIS%ISSED for la#! of 4erit. SO ORDERED.$0 The N5RC ,ointed out that Cola41ot>s #o4,laint was unsu,,orted 1& an& eviden#e and was not even 4ade under oath, thus, la#!in" in #redi1ilit& and ,ro1ative value. The N5RC further 1elieved that Cola41ot a1andoned his wor! due to his refusal to re,ort for wor! after his sus,ension. The failure of %<R to notif& Cola41ot to return 1a#! to wor! is not tanta4ount to a#tual dis4issal. Cola41ot filed a 4otion for re#onsideration, 1ut was denied. Thus, via a ,etition for #ertiorari under Rule 3 of the Rules of Court, raisin" "rave a1use of dis#retion as a "round, Cola41ot a,,ealed 1efore the Court of +,,eals and sou"ht that the De#ision dated O#to1er 2$, ())3 and Resolution dated De#e41er ($, ())3 of the N5RC 1e reversed and set aside.

In the dis,uted De#ision$/ dated %a& $', ())', the Court of +,,eals "ranted the ,etition and reversed the assailed De#ision dated O#to1er 2$, ())3 and Resolution dated De#e41er ($, ())3 of the N5RC. The De#ision dated +,ril (0, ())3 of the 5a1or +r1iter was ordered reinstated with 4odifi#ation that in lieu of reinstate4ent, ,etitioners were ordered to ,a& res,ondent se,aration ,a& eEuivalent to one 6$7 4onth ,a& for ever& &ear of servi#e in addition to full 1a#!wa"es. The a,,ellate #ourt ruled that Cola41ot was ille"all& dis4issed 1ased on the "rounds that8 6$7 %<R failed to ,rove a1andon4ent on the ,art of Cola41ot, and 6(7 %<R failed to serve Cola41ot with the reEuired written noti#es of dis4issal.())'. Petitioners a,,ealed, 1ut was denied in a Resolution () dated *ul& ( , ())'. Thus, via Rule 4 of the Rules of Court, 1efore this Court, ,etitioners raised the followin" issues8

I THE HONOR+A5E COFRT O9 +PPE+5S ERRED IN RF5IN. TH+T CO%P5+IN+NT B+S I55E.+55G DIS%ISSED 9RO% THE SERVICE. II THE HONOR+A5E COFRT SERIOFS5G ERRED IN RF5IN. TH+T PETITIONER IS ENTIT5ED TO SEP+R+TION P+G +ND A+CHB+.ES.
Petitioners ar"ue that the& did not ter4inate the e4,lo&er-e4,lo&ee relationshi, with Cola41ot. Other than Cola41ot>s self-servin" and unverified narration of fa#ts, he failed to ,resent an& do#u4ent showin" that he was ter4inated fro4 wor!. Petitioners assert that Cola41ot a1andoned his wor! when he failed to re,ort 1a#! to wor! without an a,,roved va#ation or si#! leave, thus, he is not entitled to an award of se,aration ,a& and 1a#!wa"es. RF5IN. Bhile we re#o"ni;e the rule that in ille"al dis4issal #ases, the e4,lo&er 1ears the 1urden of ,rovin" that the ter4ination was for a valid or authori;ed #ause, in the ,resent #ase, however, the fa#ts and the eviden#e do not esta1lish a ,ri4a fa#ie #ase that the e4,lo&ee was dis4issed fro4 e4,lo&4ent. Aefore the e4,lo&er 4ust 1ear the 1urden of ,rovin" that the dis4issal was le"al, the e4,lo&ee 4ust first esta1lish 1& su1stantial eviden#e the fa#t of his dis4issal fro4 servi#e. If there is no dis4issal, then there #an 1e no Euestion as to the le"alit& or ille"alit& thereof. ($ In the ,resent #ase, other than Cola41ot>s unsu1stantiated alle"ation of havin" 1een ver1all& ter4inated fro4 his wor!, there was no eviden#e ,resented to show that he was indeed dis4issed fro4 wor! or was ,revented fro4 returnin" to his wor!. In the a1sen#e of an& showin" of an overt or ,ositive a#t ,rovin" that ,etitioners had dis4issed res,ondent, the latter>s #lai4 of ille"al dis4issal #annot 1e sustained (( I as the sa4e would 1e self-servin", #on=e#tural and of no ,ro1ative value. + review of the Noti#e of Sus,ension(2 dated Nove41er ( , ())4 shows that res,ondent was 4erel& sus,ended fro4 wor! for 3 da&s, there was, however, no eviden#e that Cola41ot was ter4inated fro4 wor!. 9or #larifi#ation, we Euote8

TO 8 %+*EN CO5+%AOT %<R %ESSEN.ER

9RO% 8 HF%+N RESOFRCE DEPT D+TE 8 NOV. ( , ())4 RE 8 SFSPENSION DFE TO INSFAORDIN+TION @@@@ Cases of insu1ordination and violations have 1een filed a"ainst &ou 4an& ti4es. Be !e,t on re4indin" that &ou should have #han"ed and i4,roved &our wor!in" attitudes 1e#ause it "reatl& affe#ts not onl& &our wor!in" ,erfor4an#e 1ut the #o4,an&>s ,rodu#tivit& as well. Gour attitude onl& shows H+RD HE+DEDNESS +ND 5+CH O9 RESPECT TO GOFR SFPERIORS whi#h in an& #o4,an& #annot tolerate. Bith these, &ou are sus,ended for 3 wor!in" da&s effe#tive Nove41er (3, ())4, &ou will onl& re,ort on De#e41er ', ())4. THIS IS OFR 5+ST B+RNIN. 9OR GOF TO I%PROVE, 9+I5FRE TO DO SO %+G %E+N TER%IN+TION O9 GOFR E%P5OG%ENT CONTR+CT. @ @ @ @(4
Bhile the sa4e a,,eared to #ontain a warnin" of ter4ination should Cola41ot fail to i4,rove his 1ehavior, it is li!ewise a,,arent that there was also a s,e#ifi# instru#tion for hi4 to re,ort 1a#! to wor!, on De#e41er ', ())4, u,on servin" his sus,ension. The su1=e#t of the 5etter, i.e., DSus,ension due to Insu1ordination,D the wordin"s and #ontent of the letter is a #lear-#ut noti#e of sus,ension, and not a noti#e of ter4ination. The noti#e of sus,ension 4a& have #ontained warnin"s of ter4ination, 1ut it 4ust 1e noted that su#h was #onditioned on the "round that I Cola41ot would fail to i4,rove his attitudeJ1ehavior. There were no wordin"s whatsoever i4,l&in" a#tual or #onstru#tive dis4issal. Thus, Cola41ot>s "eneral alle"ation of havin" 1een orall& dis4issed fro4 the servi#e as a"ainst the #lear wordin"s and intent of the noti#e of sus,ension whi#h he si"ned, we are then in#lined to 1elieve that there was no dis4issal. In %a#hi#a v. Roosevelt Servi#es Center, In#.,( this Court sustained the e4,lo&er>s denial as a"ainst the e4,lo&ees> #ate"ori#al assertion of ille"al dis4issal. In so rulin", this Court held that8 The rule is that one who alle"es a fa#t has the 1urden of ,rovin" it? thus, ,etitioners were 1urdened to ,rove their alle"ation that res,ondents dis4issed the4 fro4 their e4,lo&4ent. It 4ust 1e stressed that the eviden#e to ,rove this fa#t 4ust 1e #lear, ,ositive and #onvin#in". The rule that the e4,lo&er 1ears the 1urden of ,roof in ille"al dis4issal #ases finds no a,,li#ation here 1e#ause the res,ondents den& havin" dis4issed the ,etitioners.(3 Hen#e, as 1etween res,ondentsC "eneral alle"ation of havin" 1een orall& dis4issed fro4 the servi#e visa-vis those of ,etitioners whi#h were found to 1e su1stantiated 1& the sworn state4ent of fore4an Benifredo, we are ,ersuaded 1& the latter. +1sent an& showin" of an overt or ,ositive a#t ,rovin" that ,etitioners had dis4issed res,ondents, the latterCs #lai4 of ille"al dis4issal #annot 1e sustained. Indeed, a #ursor& e@a4ination of the re#ords reveal no ille"al dis4issal to s,ea! of. (' %oreover, in +1ad v. Roselle Cine4a,(0 we ruled that the su1stantial eviden#e ,roffered 1& the e4,lo&er that it had not ter4inated the e4,lo&ee should not 1e i"nored on the ,rete@t that the e4,lo&ee would not

have filed the #o4,laint for ille"al dis4issal if he had not reall& 1een dis4issed. Be held that su#h non seEuitur reasonin" #annot ta!e the ,la#e of the eviden#e of 1oth the e4,lo&er and the e4,lo&ee. Neither #ould the ,etitioners 1e 1la4ed for failin" to order res,ondent to return 1a#! to wor!. Re#ords show that Cola41ot i44ediatel& filed the #o4,laint for ille"al dis4issal on De#e41er $3, ())4, (/ or =ust a few da&s when he was su,,osed to re,ort 1a#! to wor! on De#e41er ', ())4. 9or ,etitioners to order res,ondent to re,ort 1a#! to wor!, after the latter had alread& filed a #ase for ille"al dis4issal, would 1e unsound.
1wphi1

However, while the Court #on#urs with the #on#lusion of the N5RC that there was no ille"al dis4issal, no dis4issal havin" a#tuall& ta!en ,la#e, the Court does not a"ree with its findin"s that Cola41ot #o44itted a1andon4ent of wor!. In a nu41er of #ases,2) this Court #onsistentl& held that to #onstitute a1andon4ent of wor!, two ele4ents 4ust 1e ,resent8 first, the e4,lo&ee 4ust have failed to re,ort for wor! or 4ust have 1een a1sent without valid or =ustifia1le reason? and se#ond, there 4ust have 1een a #lear intention on the ,art of the e4,lo&ee to sever the e4,lo&er-e4,lo&ee relationshi, 4anifested 1& so4e overt a#t. In the instant #ase, other than Cola41ot>s failure to re,ort 1a#! to wor! after sus,ension, ,etitioners failed to ,resent an& eviden#e whi#h tend to show his intent to a1andon his wor!. It is a settled rule that 4ere a1sen#e or failure to re,ort for wor! is not enou"h to a4ount to a1andon4ent of wor!. There 4ust 1e a #on#urren#e of the intention to a1andon and so4e overt a#ts fro4 whi#h an e4,lo&ee 4a& 1e dedu#ed as havin" no 4ore intention to wor!.2$ On this ,oint, the C+ was #orre#t when it held that8 %ere a1sen#e or failure to re,ort for wor!, even after noti#e to return, is not tanta4ount to a1andon4ent. The 1urden of ,roof to show that there was un=ustified refusal to "o 1a#! to wor! rests on the e4,lo&er. +1andon4ent is a 4atter of intention and #annot li"htl& 1e ,resu4ed fro4 #ertain eEuivo#al a#ts. To #onstitute a1andon4ent, there 4ust 1e #lear ,roof of deli1erate and un=ustified intent to sever the e4,lo&er-e4,lo&ee relationshi,. Clearl&, the o,erative a#t is still the e4,lo&eeCs ulti4ate a#t of ,uttin" an end to his e4,lo&4ent. 9urther4ore, it is a settled do#trine that the filin" of a #o4,laint for ille"al dis4issal is in#onsistent with a1andon4ent of e4,lo&4ent. +n e4,lo&ee who ta!es ste,s to ,rotest his dis4issal #annot lo"i#all& 1e said to have a1andoned his wor!. the filin" of su#h #o4,laint is ,roof enou"h of his desire to return to wor!, thus ne"atin" an& su""estion of a1andon4ent. 2( Suffi#e it to sa& that, it is the e4,lo&er who has the 1urden of ,roof to show a deli1erate and un=ustified refusal of the e4,lo&ee to resu4e his e4,lo&4ent without an& intention of returnin". It is therefore in#u41ent u,on ,etitioners to as#ertain the res,ondentsC interest or non-interest in the #ontinuan#e of their e4,lo&4ent. This, ,etitioners failed to do so. These #ir#u4stan#es, ta!en to"ether, the la#! of eviden#e of dis4issal and the la#! of intent on the ,art of the res,ondent to a1andon his wor!, the re4ed& is reinstate4ent 1ut without 1a#!wa"es. 22 However, #onsiderin" that reinstate4ent is no lon"er a,,li#a1le due to the strained relationshi, 1etween the ,arties and that Cola41ot alread& found another e4,lo&4ent, ea#h ,art& 4ust 1ear his or her own loss, thus, ,la#in" the4 on eEual footin". Veril&, in a #ase where the e4,lo&ee>s failure to wor! was o##asioned neither 1& his a1andon4ent nor 1& a ter4ination, the 1urden of e#ono4i# loss is not ri"htfull& shifted to the e4,lo&er? ea#h ,art& 4ust 1ear his own loss.24 BHERE9ORE, ,re4ises #onsidered and su1=e#t to the a1ove disEuisitions, the De#ision dated %a& $ ', ())' of the Court of +,,eals is here1& REVERSED and SET +SIDE. The Resolution dated O#to1er 2$, ())3 of the National 5a1or Relations Co44ission in N5RC NCR C+SE No. ))-$$-$($0/-)4J C+ No. )4/ 22-)3 is here1& REINST+TED.

SO ORDERED. DIOSDADO M. "ERALTA +sso#iate *usti#e BE CONCFR8 "RESBITERO . #ELAS!O, R. +sso#iate *usti#e Chair,erson

ROBERTO A. ABAD +sso#iate *usti#e

OSE !ATRAL MENDOZA +sso#iate *usti#e

MAR#I! MARIO #I!TOR $. LEONEN +sso#iate *usti#e +TTEST+TION I attest that the #on#lusions in the a1ove De#ision had 1 n rea#hed in #onsultation 1efore the #ase was assi"ned to the writer of the o,inion of the CourtCs Division. "RESBITERO . #ELAS!O, R. +sso#iate *usti#e Chair,erson, Third Division CERTI9IC+TION Pursuant to Se#tion $2, +rti#le VIII of the Constitution and the Division Chair,erson>s +ttestation, I #ertif& that the #on#lusions in the a1ove De#ision had 1een rea#hed in #onsultation 1efore the #ase was assi"ned to the writer of the o,inion of the Court>s Division. MARIA LOURDES ". A. SERENO Chief *usti#e