ear PAO,

I worked as a liaison officer of a private bank. A part of my job is to, once a week, go from one branch to another and deliver
documents. Last December 2015, I figured in a vehicular accident while I was on board a motorcycle on the way to one of our
branches. I had to be hospitalized for two weeks and after my discharge, I was required to continue therapy sessions for two to
three months in order to rehabilitate my legs, which were badly injured.
I applied for sick leave for one month in January of this year to better address my therapy treatments, and it was approved by our
HR. Come February, my legs were still in a bad shape, so I asked my supervisor to allow me to extend my leave, which he
approved. I came back on the 1st of March, but I was not allowed to enter our office. The guard said the was given orders not to let
me in because I was terminated for being AWOL. I told my supervisor about it and he said there is nothing he can do because it
was management decision. Can my employer really terminate me? What remedy do I have? Please help me.
Jumbo
Dear Jumbo,
Employers have the right to terminate the services of their employees as long as due process is complied with. Due process, under
our law, has two facets: (1) substantive due process, and (2) procedural due process.

As to substantive due process, it is required that there be a legal basis for the termination of an employee. It may be for causes
explicitly mentioned under their employment contract or written company rules and regulations, or for any of the just and authorized
causes provided for under Articles 282, 283 and 284 of the Labor Code.

As to the matter of procedural due process, it is required that a written notice be given to the employee within a reasonable time
from the effective date of termination. Such notice must clearly inform the concerned employee of the cause/s of his termination as
provided for in his contract. If the basis for the termination is any of the just causes mentioned under the Labor Code, (a) a written
notice must be served on the employee specifying the ground/s for his termination, and giving him reasonable opportunity within
which to explain his side; (b) hearing must be conducted; and (c) a written notice of termination must also be served on the
employee, indicating that upon due consideration, grounds have been established to justify his termination. For termination due to
authorized causes, due process is deemed complied with upon service of a written notice to the employee and the appropriate
Regional Office of the Department of Labor and Employment at least thirty days before the effectivity of the termination, specifying
the ground/s for termination (Section 2 (d), Rule I, Book Six,Implementing Rules and Regulations (IRR) of the Labor Code).

In the situation that you have presented, we believe that being on AWOL or absence without leave may be considered a ground
for termination of employment. Even if the same is not clearly dealt with under your contract of employment, it may still be a basis
for termination as it is provided for under Article 282 of the Labor Code. The provision states, An employer may terminate an
employment for any of the following causes: x x x (b) Gross and habitual neglect by the employee of his duties; x x x

Accordingly, if you did not properly secure a leave of absence prior to or after not reporting for work last February, such may serve
as a ground for your employer to consider terminating your services. It is tantamount to grossly abandoning or neglecting your work.

We wish to emphasize, however, that your employer cannot simply terminate your services without complying with procedural due
process. Thus, a written notice must have been served upon you so as to inform you of the cause of your termination and give you
an opportunity to explain. A hearing or investigation must have been conducted and, thereafter, a written notice of termination must
have been served upon you. If the same has not been complied with, you may file a complaint for illegal dismissal before the
National Labor Relations Commission (NLRC). Please be advised that such action may only be brought within four (4) years from
the time of dismissal.

We hope that we were able to answer your queries. Please be reminded that this advice is based solely on the facts you have
narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated.

MARIO B. DIMAGAN,
Petitioner,
- versus -

dacworks United, incorporated and/or

dean a. cancino,
Respondents.
G.R. No. 191053

Present:

VELASCO, JR., J.,

Chairperson,
PERALTA,
ABAD,
MENDOZA, and
PERLAS-BERNABE, JJ.

Promulgated:
November 28, 2011
x------------------------------------------------------------------------------------x

This is a petition for review on certiorari under Rule 45 of the 1997 Rules of Civil Procedure assailing the Decision1 dated July 10,
2009 and the Resolution2 dated January 22, 2010 rendered by the Court of Appeals (CA) in CA-G.R. SP No. 105771. The CA
reversed and set aside the Resolutions3 of the National Labor Relations Commission (NLRC) dated May 29, 2007 and July 15,
2008 in NLRC NCR CA No. 047312-06/NLRC NCR-00-07-07590-03 finding petitioner Mario B. Dimagan to have been illegally
dismissed.

Petitioner Mario B. Dimagan is a stockholder of respondent DACWORKS UNITED, INC., which is engaged in the business of
installing, maintaining and repairing airconditioning systems. In July 1997, he started working for respondent company as Officer-in-
Charge (OIC) for mechanical installation with a monthly salary of P8,000.00.

Sometime in 2002, petitioner was downgraded from his post as OIC to supervisor. Then, in March of the following year, he was
made to work as a mere technician. When he vocally expressed his concerns regarding his assignments, one Loida Aquino, who
was in charge of servicing/personnel under the direct supervision of respondent Dean A. Cancino, told him not to report for work
anymore. Thereafter, a certain Carlito Diaz, Operations Manager of respondent company, castigated petitioner for not following
Aquino's instruction to work as a technician. This prompted petitioner to file a complaint for illegal dismissal, non-payment of
overtime pay, holiday pay, service incentive leave and separation pay against respondents.

Respondents denied that petitioner was illegally dismissed arguing that, since April 4, 2003 up to the time of the filing of the
complaint, petitioner never reported for work and continuously violated the company policy on absence without official leave
(AWOL). They allegedly sent a total of four (4) memoranda for the period August 2002 to March 2003 informing petitioner of his
offenses, including being AWOL, but he nonetheless unjustifiably refused to return to work.
In reply, petitioner denied ever receiving any one of the four memoranda allegedly sent by respondents.

On October 28, 2005, the Labor Arbiter rendered a decision4 in favor of petitioner disposing as follows:

WHEREFORE, respondents are hereby ordered to reinstate complainant to his former position with full backwages which as of this
date has amounted to P240,800.00.

All the other claims are hereby DISMISSED.

SO ORDERED.5

In holding that petitioner was illegally dismissed, the Labor Arbiter pointed out that there was no denial by respondents that they
relegated petitioner from the position of OIC to supervisor and then to ordinary technician. The last assignment was meant to
humiliate him and deprive him of his dignity as stockholder of the company. Moreover, the immediate filing by petitioner of the
complaint for dismissal negated the defense of abandonment interposed by respondents.

On appeal, the NLRC rendered a Resolution6 dated May 29, 2007 affirming the Labor Arbiter's Decision in toto. It took note of the
dearth of evidence to show that petitioner duly received the memoranda allegedly sent by respondents informing him of his
suspension from work. In affirming petitioner's constructive dismissal, the NLRC ratiocinated that he was not given overtime pay
despite the fact that he frequently worked late nights because he was supposedly a managerial employee. But when respondents
started treating him as a rank-and-file employee by making him work as a mere technician, such act of clear discrimination,
insensibility or disdain became unbearable to petitioner.

Further, the NLRC clarified that the phrase as of this date in the decretal portion of the Decision of the Labor Arbiter signified that the
computation of petitioner's backwages starts from the date when his compensation was withheld from him until the date of his actual
reinstatement, as provided in Article 279 of the Labor Code.

Respondents sought reconsideration7 of the NLRC's Resolution. However, in his Comment/Opposition8 thereto, petitioner alleged
that respondents rigged, tampered, distorted and perverted the mailing of their motion for reconsideration to make it appear that it
was mailed on the last day for filing thereof, or on June 25, 2007, at the Mayamot Post Office. To prove the same, petitioner
submitted a Certification9 from the postmaster of the Mayamot Post Office, Antipolo City, stating that there was no record of
registered mails posted on June 25, 2007 by Atty. Gerardo B. Collado, counsel for the respondents, and addressed to the NLRC and
to petitioner's counsel, Atty. Jonathan Polines.

On July 15, 2008, the NLRC issued a Resolution10 denying respondents' motion for reconsideration for lack of merit without,
however, passing judgment on the allegation that respondents manipulated the filing of their motion for reconsideration. The NLRC
merely directed respondents to file a comment and/or explanation within five (5) days from receipt of the aforesaid Resolution, to
which the latter complied.11

Subsequently, respondents filed a petition for certiorari12 under Rule 65 of the same Rules before the CA. In its challenged
Decision13 dated July 10, 2009, the CA reversed and set aside the Resolutions of the NLRC upon a finding that there was no
dismissal of petitioner to speak of, whether actual or constructive, considering the absence of substantial evidence to prove that his
services were, in fact, terminated by respondents; or that there was a demotion in rank or a diminution of his salaries, benefits and
privileges

With regard to the procedural aspect, the CA held that, since the NLRC did not categorically address the issue on the alleged
manipulation in the mailing of respondents' motion for reconsideration even after the required explanation was submitted by the
latter, then said motion was considered as timely filed.

Aggrieved, petitioner moved14 for reconsideration of the CA Decision, but it was denied in the Resolution15 dated January 22, 2010
for lack of merit. Hence, the instant recourse on the following grounds, to wit:

(A)

THE COURT OF APPEALS HAS FAILED IN ITS DUTY TO DETERMINE THAT RESPONDENTS HAVE FAILED TO COMPLY WITH
THE REQUIREMENTS ON THE APPROPRIATE SWORN CERTIFICATION ON FORUM-SHOPPING TO BE SUBMITTED
TOGETHER WITH THE PETITION FOR CERTIORARI, THAT WOULD CALL FOR THE EXERCISE BY THIS HONORABLE
SUPREME COURT OF ITS POWER OF SUPERVISION.

(B)

THE COURT OF APPEALS HAS FAILED IN ITS DUTY TO DETERMINE THAT RESPONDENTS HAVE VIOLATED THE
CERTIFICATION ON NON-FORUM SHOPPING, BY REFUSING AND FAILING TO DISCLOSE THE PENDING INVESTIGATION
BEING CONDUCTED BY THE NLRC ON THE RESPONDENTS' MANIPULATION OF THE MAILING OF THEIR MOTION FOR
RECONSIDERATION BELOW, THAT WOULD CALL FOR THE EXERCISE BY THIS HONORABLE SUPREME COURT OF ITS
POWER OF SUPERVISION.

(C)

THE COURT OF APPEALS GRAVELY ERRED IN DECLARING THAT PETITIONER WAS NOT ILLEGALLY DISMISSED, DESPITE
THE EXISTENCE OF EVIDENCE INDICATING THE CONSTRUCTIVE DISMISSAL BY REASON OF CLEAR DISCRIMINATION,
INSENSIBILITY OR DISDAIN COMMITTED BY THE EMPLOYER AGAINST THE PETITIONER.16

Before delving into the merits of the instant case, the Court shall first resolve petitioner's claim that respondents are guilty of forum
shopping having failed to comply with the required form of the certification, as prescribed17 by the Rules of Court, and to disclose
the pendency of an investigation being conducted by the NLRC with regard to the allegation of manipulation and/or tampering in the
mailing of respondents' motion for reconsideration.

The Court is not convinced.

Forum shopping exists when a party repetitively avails himself of several judicial remedies in different courts, simultaneously or
successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising
substantially the same issues either pending in, or already resolved adversely by, some other court.18

The elements of forum shopping are: (1) identity of parties, or at least such parties as represent the same interests in both actions;
(2) identity of rights asserted and reliefs prayed for, the relief being founded on the same set of facts; and (3) the identity of the two
preceding particulars, such that any judgment rendered in the other action will, regardless of which party is successful, amount to
res judicata in the action under consideration.19

There was no confluence of the foregoing elements in the instant case. Records show that when respondents filed their petition for
certiorari before the CA, their motion for reconsideration before the NLRC had already been resolved on the merits, and the only
incident left for the NLRC to adjudicate was the alleged mail tampering of respondents. The pendency of such investigation,
however, is merely incidental, such that its resolution will not amount to res judicata in the petition for certiorari before the CA. Be
that as it may, the Court examined the certification on forum shopping20 attached to respondents' petition for certiorari before the
CA, and found the same to have substantially complied with the requirements under the rules.
On the merits, the Court finds petitioner's arguments meritorious.

At the outset, it must be pointed out that the main issue in this case involves a question of fact. It is an established rule that the
jurisdiction of the Supreme Court in cases brought before it from the CA via Rule 45 of the 1997 Rules of Civil Procedure is
generally limited to reviewing errors of law. This Court is not a trier of facts. In the exercise of its power of review, the findings of fact
of the CA are conclusive and binding and consequently, it is not our function to analyze or weigh evidence all over again.21

This rule, however, is not ironclad. One of the recognized exceptions is when there is a divergence between the findings of facts of
the NLRC and that of the CA,22 as in this case. There is, therefore, a need to review the records to determine which of them should
be preferred as more conformable to evidentiary facts.23

After a judicious scrutiny of the records, the allegations of petitioner and the defenses raised by respondents, the Court cannot
sustain the finding of the CA that petitioner was not illegally or constructively dismissed.

Constructive dismissal is defined as a quitting because continued employment is rendered impossible, unreasonable or unlikely;
when there is a demotion in rank or a diminution of pay.24 The test of constructive dismissal is whether a reasonable person in the
employee's position would have felt compelled to give up his position under the circumstances. It is an act amounting to dismissal
but is made to appear as if it were not. Constructive dismissal is therefore a dismissal in disguise. The law recognizes and resolves
this situation in favor of employees in order to protect their rights and interests from the coercive acts of the employer.25

As held in the case of Coca-Cola Bottlers Philippines, Inc. vs. Del Villar,26 the burden falls upon the company to prove that the
employee's assignment from one position to another was not tantamount to constructive dismissal. In the case at bar, respondents
failed to discharge said burden. In fact, respondents never even disputed that petitioner was relegated from the position of OIC to
supervisor and, subsequently, to an ordinary technician. Clearly, the reduction in petitioner's responsibilities and duties, particularly
from supervisor to ordinary technician, constituted a demotion in rank tantamount to constructive dismissal.

Thus, contrary to the position of the CA, it is of no consequence that petitioner failed to substantiate his allegation that Loida Aquino,
an employee of respondent company, informed him that he will be working as an ordinary technician, and that when he openly
voiced out his concern regarding the transfer, he was told not to report for work anymore. As with all the other allegations made by
petitioner, respondents never disputed or rebutted this fact.

Similarly, We cannot concur with the finding of the CA that it was petitioner who abandoned his employment by failing to report for
work or having gone AWOL.

Abandonment is the deliberate and unjustified refusal of an employee to resume his employment.27 To constitute abandonment of
work, two elements must concur: (1) the employee must have failed to report for work or must have been absent without valid or
justifiable reason; and (2) there must have been a clear intention on the part of the employee to sever the employer-employee
relationship manifested by some overt act.28 The employer bears the burden of proof to show the deliberate and unjustified refusal
of the employee to resume his employment without any intention of returning.29

In the case of Hodieng Concrete Products, Inc. v. Emilia30, citing Samarca v. Arc-Men Industries, Inc.31, the Court has ruled thus:

x x x. Absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work
anymore. And the burden of proof to show that there was unjustified refusal to go back to work rests on the employer.

xxx

Abandonment is a matter of intention and cannot lightly be presumed from certain equivocal acts. To constitute abandonment, there
must be clear proof of deliberate and unjustified intent to sever the employer-employee relationship. Clearly, the operative act is still
the employees ultimate act of putting an end to his employment.

Settled is the rule that mere absence or failure to report for work is not tantamount to abandonment of work. x x x. (Emphasis
supplied)

In this case, petitioner's failure to report for work was caused by the unwarranted demotion in rank that was imposed upon him by
respondents, not by any intention to sever employment ties with them. And his filing of the instant complaint for illegal dismissal
indubitably negates the allegation of abandonment. Had petitioner intended to forsake his job, then he would not have found it
necessary to institute this case against respondents.

In sum, the CA committed reversible error when it held that petitioner was not illegally or constructively dismissed. With respect to
the investigation being conducted by the NLRC regarding the alleged tampering and/or manipulation of the mailing of respondents'
motion for reconsideration filed before it, the Court no longer finds it necessary to pass upon the same.
WHEREFORE, the instant petition is GRANTED. The assailed Decision and Resolution of the CA are SET ASIDE. The Resolutions
of the NLRC affirming the Decision of the Labor Arbiter are REINSTATED. Petitioner is entitled to reinstatement without loss of
seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other benefits computed from the
time his compensation was withheld from him or on April 4, 2003, up to the time of his actual reinstatement, in accordance with
Article 27932 of the Labor Code.

SO ORDERED.

JOSE C. MENDOZA
Associate Justice

ATT E STAT I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court's Division.

PRESBITERO J. VELASCO, JR.

Associate Justice
Chairperson, Third Division

C E RT I F I CAT I O N

Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson's Attestation, I certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

RENATO C. CORONA
Chief Justice
1 Rollo, pp. 35-47.
2 Id., pp. 67-71.
3 Id., pp. 145-149, 151-153.
4 Id., Annex E, pp. 73-77.
5 Id., pp. 76-77.
6 Id., Annex F, pp. 79-83.
7 Id., Annex G, pp. 84-104.
8 Id., Annex H, pp. 107-113.
9 Id., p. 117.
10 Id., Annex I, pp. 121-123.
11 Id., Exhibit 2, pp. 208-215.
12 Id., Annex J, pp. 124-139.
13 Supra note 1.
14 Rollo, Annex B, pp. 48-55.
15 Supra note 2.
16 Petition, rollo, p. 18.
17 SEC. 5, Rule 7. Certification against forum shopping. - The plaintiff or principal party shall certify under oath in the complaint or
initiatory pleading asserting a claim for relief, or in a sworn certification annexed thereto and simultaneously filed therewith: (a) that
he has not theretofore commenced any action or filed any claim involving the same issues in any court, tribunal or quasi-judicial
agency and, to the best of his knowledge, no such other action or claim is pending therein; (b) if there is such other pending action
or claim, a complete statement of the present status thereof; and (c) if he should thereafter learn that the same or similar action or
claim has been filed or is pending, he shall report that fact within five (5) days therefrom to the court wherein his aforesaid complaint
or initiatory pleading has been filed.
xxx
18 Feliciano v. Villasin, G.R. No. 174929, June 27, 2008, 556 SCRA 348.
19 Id.
20 Rollo, p. 139.
21 Sugue, et. al. v. Triumph International (Phils.), Inc., G.R. No. 164804, January 30, 2009, 556 SCRA 323.
22 Id.
23 Philippine American Life Gen. Insurance Co. v. Gramaje, G.R. No. 156963, November 11, 2004, 442 SCRA 274.
24 Norkis Trading Co. Inc. v. Gnilo, G.R. No. 159730, February 11, 2008, 544 SCRA 279.
25 CRC Agricultural Trading v. NLRC, G.R. No. 177664, December 23, 2009, 609 SCRA 138.
26 G.R. No. 163091, October 06, 2010, 632 SCRA 293.
27 Exodus International Construction Corporation v. Biscocho, et. al., G.R. No. 166109, February 23, 2011.
28 Id.
29 Id.
30 G.R. No. 149180, February 14, 2005, 451 SCRA 249.
31 G.R. No. 146118, October 8, 2003, 413 SCRA 162.
32 ART. 279. Security of Tenure. In cases of regular employment, the employer shall not terminate the services of an employee
except for a just cause or when authorized by this Title. An employee who is unjustly dismissed from work shall be entitled to
reinstatement without loss of seniority rights and other privileges and to his full backwages, inclusive of allowances, and to his other
benefits or other monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual
reinstatement.

Republic of the Philippines

SUPREME COURT
Manila

SECOND DIVISION

G.R. No. 172044 February 06, 2013

CAVITE APPAREL, INCORPORATED and ADRIANO TIMOTEO, Petitioners,

vs.
MICHELLE MARQUEZ, Respondent.

DECISION

BRION, J.:

We resolve the petition for review on certiorari1filed by petitioners Cavite Apparel, Incorporated ( Cavite Apparel) and Adriano
Timoteo to nullify the decision2 dated January 23, 2006 and the resolution3 dated March 23, 2006 of the Court of Appeals ( CA) in
C.A.-G.R. SP No. 89819 insofar as it affirmed the disposition4 of the National Labor Relations Commission (NLRC) in NLRC CA No.
029726-01. The NLRC set aside the decision5 of Labor Arbiter (LA) Cresencio G. Ramos in NLRC NCR Case No. RAB-IV-7-12613-
00-C dismissing the complaint for illegal dismissal filed by respondent Michelle Marquez against the petitioners.

The Factual Antecedents

Cavite Apparel is a domestic corporation engaged in the manufacture of garments for export. On August 22, 1994, it hired Michelle
as a regular employee in its Finishing Department. Michelle enjoyed, among other benefits, vacation and sick leaves of seven (7)
days each per annum. Prior to her dismissal on June 8, 2000, Michelle committed the following infractions (with their corresponding
penalties):

a. First Offense: Absence without leave (AWOL) on December 6, 1999 written warning

b. Second Offense: AWOL on January 12, 2000 stern warning with three (3) days suspension

c. Third Offense: AWOL on April 27, 2000 suspension for six (6) days.6

On May 8, 2000, Michelle got sick and did not report for work. When she returned, she submitted a medical certificate. Cavite
Apparel, however, denied receipt of the certificate.7 Michelle did not report for work on May 15-27, 2000 due to illness. When she
reported back to work, she submitted the necessary medical certificates. Nonetheless, Cavite Apparel suspended Michelle for six (6)
days (June 1-7, 2000). When Michelle returned on June 8, 2000, Cavite Apparel terminated her employment for habitual
absenteeism.

On July 4, 2000, Michelle filed a complaint for illegal dismissal with prayer for reinstatement, backwages and attorneys fees with the
NLRC, Regional Arbitration Branch No. IV.

The LA Ruling

In a decision dated April 28, 2001,8 LA Ramos dismissed the complaint. He noted that punctuality and good attendance are required
of employees in the companys Finishing Department. For this reason, LA Ramos considered Michelles four absences without
official leave as habitual and constitutive of gross neglect of duty, a just ground for termination of employment. LA Ramos also
declared that due process had been observed in Michelles dismissal, noting that in each of her absences, Cavite Apparel afforded
Michelle an opportunity to explain her side and dismissed her only after her fourth absence. LA Ramos concluded that Michelles
dismissal was valid.9

The NLRC Decision

On appeal by Michelle, the NLRC referred the case to Executive LA Vito C. Bose for review, hearing and report.10 Adopting LA
Boses report, the NLRC rendered a decision11 dated May 7, 2003 reversing LA Ramos decision. The NLRC noted that for
Michelles first three absences, she had already been penalized ranging from a written warning to six days suspension. These, the
NLRC declared, should have precluded Cavite Apparel from using Michelles past absences as bases to impose on her the penalty
of dismissal, considering her six years of service with the company. It likewise considered the penalty of dismissal too severe. The
NLRC thus concluded that Michelle had been illegally dismissed and ordered her reinstatement with backwages.12 When the NLRC
denied Cavite Apparels motion for reconsideration in a resolution13 dated March 30, 2005, Cavite Apparel filed a petition for
certiorari with the CA to assail the NLRC ruling.

The CA Ruling

Cavite Apparel charged the NLRC with grave abuse of discretion when it set aside the LAs findings and ordered Michelles
reinstatement. It disagreed with the NLRCs opinion that Michells past infractions could no longer be used to justify her dismissal
since these infractions had already been penalized and the corresponding penalties had been imposed.

The CA found no grave abuse of discretion on the part of the NLRC and accordingly dismissed Cavite Apparels petition on January
23, 2006.14 While it agreed that habitual absenteeism without official leave, in violation of company rules, is sufficient reason to
dismiss an employee, it nevertheless did not consider Michelles four absences as habitual. It especially noted that Michelle
submitted a medical certificate for her May 8, 2000 absence, and thus disregarded Cavite Apparels contrary assertion. The CA
explained that Michelles failure to attach a copy of the medical certificate in her initiatory pleading did not disprove her claim.

The CA agreed with the NLRC that since Cavite Apparel had already penalized Michelle for her three prior absences, to dismiss her
for the same infractions and for her May 8, 2000 absence was unjust. Citing jurisprudence, The CA concluded that her dismissal
was too harsh, considering her six years of employment with Cavite Apparel; it was also a disproportionate penalty as her fourth
infraction appeared excusable.

In its March 23, 2006 resolution,15 the CA denied Cavite Apparels motion for reconsideration; hence, Cavite Apparels present
recourse.

The Petition

Cavite Apparel imputes grave abuse of discretion against the CA when:

1. it did not find that the NLRC committed grave abuse of disretion in setting aside the decision of the CA;

2. it failed to consider Michelles four (4) AWOLs over a period of six months, from December 1999 to May 2000, habitual; and

3. it ruled that the series of violations of company rules committed by Michelle were already meted with the corresponding
penalties.16

Cavite Apparel argues that it is its prerogative to discipline its employees. It thus maintains that when Michelle, in patent violation of
the companys rules of discipline, deliberately, habitually, and without prior authorization and despite warning did not report for work
on May 8, 2000, she committed serious misconduct and gross neglect of duty. It submits that dismissal for violation of company
rules and regulations is a dismissal for cause as the Court stressed in Northern Motors, Inc., v. National Labor Union, et al.17

The Case for the Respondent

Michelle asserts that her dismissal was arbitrary and unreasonable. For one, she had only four absences in her six (6) years of
employment with Cavite Apparel. She explains that her absence on May 8, 2000 was justified as she was sick and had sick leave
benefits against which Cavite Apparel could have charged her absences. Also, it had already sanctioned her for the three prior
infractions. Under the circumstances, the penalty of dismissal for her fourth infraction was very harsh. Finally, as the CA correctly
noted, Cavite Apparel terminated her services on the fourth infraction, without affording her prior opportunity to explain.

The Courts Ruling

The case poses for us the issue of whether the CA correctly found no grave abuse of discretion when the NLRC ruled that Cavite
Apparel illegally terminated Michelles employment.

We stress at the outset that, as a rule, the Court does not review questions of fact, but only questions of law in an appeal by
certiorari under Rule 45 of the Rules of Court.18 The Court is not a trier of facts and will not review the factual findings of the lower
tribunals as these are generally binding and conclusive.19 The rule though is not absolute as the Court may review the facts in labor
cases where the findings of the CA and of the labor tribunals are contradictory.20 Given the factual backdrop of this case, we find
sufficient basis for a review as the factual findings of the LA, on the one hand, and those of the CA and the NLRC, on the other
hand, are conflicting.

After a careful review of the merits of the case, particularly the evidence adduced, we find no reversible error committed by the CA
when it found no grave abuse of discretion in the NLRC ruling that Michelle had been illegally dismissed.

Michelles four absences were not habitual; "totality of infractions" doctrine not applicable

Cavite Apparel argues that Michelles penchant for incurring unauthorized and unexcused absences despite its warning constituted
gross and habitual neglect of duty prejudicial to its business operations. It insists that by going on absence without official leave four
times, Michelle disregarded company rules and regulations; if condoned, these violations would render the rules ineffectual and
would erode employee discipline.
Cavite Apparel disputes the CAs conclusion that Michelles four absences without official leave were not habitual since she was able
to submit a medical certificate for her May 8, 2000 absence. It asserts that, on the contrary, no evidence exists on record to support
this conclusion. It maintains that it was in the exercise of its management prerogative that it dismissed Michelle; thus, it is not barred
from dismissing her for her fourth offense, although it may have previously punished her for the first three offenses. Citing the
Courts ruling in Mendoza v. NLRC,21 it contends that the totality of Michelles infractions justifies her dismissal.

We disagree and accordingly consider the companys position unmeritorious.

Neglect of duty, to be a ground for dismissal under Article 282 of the Labor Code, must be both gross and habitual.22 Gross
negligence implies want of care in the performance of ones duties. Habitual neglect imparts repeated failure to perform ones duties
for a period of time, depending on the circumstances.23 Under these standards and the circumstances obtaining in the case, we
agree with the CA that Michelle is not guilty of gross and habitual neglect of duties.

Cavite Apparel faults the CA for giving credit to Michelles argument that she submitted a medical certificate to support her absence
on May 8, 2000; there was in fact no such submission, except for her bare allegations. It thus argues that the CA erred in holding
that since doubt exists between the evidence presented by the employee and that presented by the employer, the doubt should be
resolved in favor of the employee. The principle, it contends, finds no application in this case as Michelle never presented a copy of
the medical certificate. It insists that there was no evidence on record supporting Michelles claim, thereby removing the doubt on
her being on absence without official leave for the fourth time, an infraction punishable with dismissal under the company rules and
regulations.

Cavite Apparels position fails to convince us. Based on what we see in the records, there simply cannot be a case of gross and
habitual neglect of duty against Michelle. Even assuming that she failed to present a medical certificate for her sick leave on May 8,
2000, the records are bereft of any indication that apart from the four occasions when she did not report for work, Michelle had been
cited for any infraction since she started her employment with the company in 1994. Four absences in her six years of service, to
our mind, cannot be considered gross and habitual neglect of duty, especially so since the absences were spread out over a six-
month period.

Michelles penalty of dismissal too harsh or not proportionate to the infractions she commited

Although Michelle was fully aware of the company rules regarding leaves of absence, and her dismissal might have been in
accordance with the rules, it is well to stress that we are not bound by such rules. In Caltex Refinery Employees Association v.
NLRC24 and in the subsequent case of Gutierrez v. Singer Sewing Machine Company,25 we held that "[e]ven when there exist
some rules agreed upon between the employer and employee on the subject of dismissal, x x x the same cannot preclude the State
from inquiring on whether [their] rigid application would work too harshly on the employee." This Court will not hesitate to disregard a
penalty that is manifestly disproportionate to the infraction committed.

Michelle might have been guilty of violating company rules on leaves of absence and employee discipline, still we find the penalty of
dismissal imposed on her unjustified under the circumstances. As earlier mentioned, Michelle had been in Cavite Apparels employ
for six years, with no derogatory record other than the four absences without official leave in question, not to mention that she had
already been penalized for the first three absences, the most serious penalty being a six-day suspension for her third absence on
April 27, 2000.

While previous infractions may be used to support an employees dismissal from work in connection with a subsequent similar
offense,26 we cautioned employers in an earlier case that although they enjoy a wide latitude of discretion in the formulation of
work-related policies, rules and regulations, their directives and the implemtation of their policies must be fair and reasonable; at the
very least, penalties must be commensurate to the offense involved and to the degree of the infraction.27

As we earlier expressed, we do not consider Michelles dismissal to be commensurate to the four absences she incurred for her six
years of service with the company, even granting that she failed to submit on time a medical certificate for her May 8, 2000 absence.
We note that she again did not report for work on May 15 to 27, 2000 due to illness. When she reported back for work, she
submitted the necessary medical certificates. The reason for her absence on May 8, 2000 due to illness and not for her personal
convenience all the more rendered her dismissal unreasonable as it is clearly disproportionate to the infraction she committed.

Finally, we find no evidence supporting Cavite Apparels claim that Michelles absences prejudiced its operations; there is no
indication in the records of any damage it sustained because of Michelles absences. Also, we are not convinced that allowing
Michelle to remain in employment even after her fourth absence or the imposition of a lighter penalty would result in a breakdown of
discipline in the employee ranks. What the company fails to grasp is that, given the unreasonableness of Michelles dismissal i.e.,
one made after she had already been penalized for her three previous absences, with the fourth absence imputed to illness
confirming the validity of her dismissal could possibly have the opposite effect. It could give rise to belief that the company is heavy-
handed and may only give rise to sentiments against it.1wphi1

In fine, we hold that Cavite Apparel failed to discharge the burden of proving that Michelles dismissal was for a lawful cause.28 We,
therefore, find her to have been illegally dismissed.

As a final point, we reiterate that while we recognize managements prerogative to discipline its employees, the exercise of this
prerogative should at all times be reasonable and should be tempered with compassion and understanding.29 Dismissal is the
ultimate penalty that can be imposed on an employee. Where a penalty less punitive may suffice, whatever missteps may be
committed by labor ought not to be visited with a consequence so severe for what is at stake is not merely the employees position
but his very livelihood and perhaps the life and subsistence of his family.30
WHEREFORE, premises considered, the petition is DENIED. The assailed January 23, 2006 decision and March 23, 2006
resolution of the Court of Appeals in CA-G.R. SP No. 89819 are AFFIRMED. Costs against Cavite Apparel, Incorporated.

SO ORDERED.

ARTURO D. BRION
Associate Justice

WE CONCUR:

ANTONIO T. CARPIO
Associate Justice
Chairperson

MARIANO C. DEL CASTILLO

Associate Justice JOSE PORTUGAL PEREZ
Associate Justice
ESTELA M. PERLAS-BERNABE
Associate Justice

ATT E STAT I O N

I attest that the conclusions in the above Decision had been reached in consultation before the case was assigned to the writer of
the opinion of the Court's Division.

ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division

C E RT I F I CAT I O N

Pursuant to Section 13, Article Vlll of the Constitution, and the Division Chairperson's Attestation, l certify that the conclusions in the
above Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court's Division.

MARIA LOURDES P. A. SERENO

Chief Justice

Footnotes

1 Dated May 9, 2006 and filed under Rule 45 of the Rules of Court; rollo pp. 11-29.

2 Id at 11-18; penned by Associate Justice Renato C. Dacudao and concurred in by Associate Justices Lucas P. Bersamin (now a
member of this Court) and Celia C. Librea-Leagogo.

3 Id at 9

4 Id at 76-81 and 87-88 respectively. Decision of the NLRC First Division dated May 7, 2003 and its resolution dated March 30,
2005.

5 Id at 57-62 dated April 28, 2001.

6 Id. at 12, 16-17 and 79.

7 Id. at 12, 17, 79 and 186. Cavite Apparel denied receiving Michelles medical certificate. See Petition, Cavite Apparels Reply, and
Annex G-1 of its Position Paper, Annex "A" to the Petition; at 17, 186 and 43, respectively.

8 Supra note 5.

9 Rollo, pp. 61-62.

10 Id. at 77.

11 Id. at 76-80.

12 Ibid.

13 Id. at 87-88.
14 Supra note 2.

15 Supra note 3.

16 Rollo, pp. 18-27.

17 102 Phil. 958, 960 (1958).

18 DUP Sound Philippines v. Court of Appeals, G.R. No. 168317, November 21, 2011, 660 SCRA 461,467, citing Union Industries,
Inc. v. Vales, 517 Phil. 247 (2006).

19 Iglesia Evangelista Metodista en las Islas Filipinas (IEMELIF), Inc. v. Juane, G.R. Nos. 172447 and 179404, September 18,
2009, 600 SCRA 555, 567.

20 DUP Sound Philippines v. Court of Appeals, supra note 18, at 467; citation omitted.

21 G.R. No. 94294, March 22, 1991, 195 SCRA 606, 613.

22 Nissan Motor Phils., Inc. v. Angelo, G.R. No. 164181, September 14, 2011, 657 SCRA 520, 530.

23 Valiao v. Court of Appeals, 479 Phil. 459, 469 (2004), citing JGB & Associates, Inc. v. NLRC, 324 Phil. 747, 754 (1996).

24 316 Phil. 335, 343-344 (1995).

25 458 Phil. 401, 413 (2003).

26 De Guzman v. National Labor Relations Commission, 371 Phil. 192, 204 (1999), citing Filipro, Inc. v. Hon. Minister Ople, 261
Phil. 104 (1990).

27 Moreno v. San Sebastian College-Recoletos Manila, G.R. No. 175283, March 28, 2008, 550 SCRA 414, 429; citation omitted.

28 Labor Code, Article 277(b).

29 Philippine Long Distance Company v. Torres. G.R. No. 1435511, November 15, 2010, 634 SCRA 538-552.

30 Ibid.

____________
Definition:
AWOL
Absence without official leave
An unexcused absence; covers an absence from duty which has not been approved
Quitting a job without giving notice
(This article will talk about the third definition).
When things at work have gone from bad to worse, the urge to just get up and leave couldnt be more attractive. Things at work may
be comparable to a war zone but going AWOL is like dropping a bomb, the only difference is there would only be one casualty: you.
Curiously, quitting without giving notice is quite prevalent in some industriesweve combed through various forums and have
noticed this worrying trend. We always advice job seekers to make their exits as smooth as possible and here are the reasons why:

You cannot expect a good review from your previous employer

Say goodbye to stellar remarks from your former boss! The fact that you have breached contract by failing to render resignation
already puts you in a bad light in his/her eyes.
Then of course you might wonder, I really dont care for what they think of me, I just want to leave and get away from my horrible
boss/office! In fact, youve already got it all figured out: youve decided to just avoid mentioning this little sore spot in your
employment history.
Well arent you a brave one!
Dont think omitting it from your resume and interviews can absolve you from this messvigilant recruiters will look into your
background before they hire you and would look into your previous employment for info. Its fairly easy for them to track where
youve worked before if they decide to check your SSS/GSIS, TIN, Philhealth and PAG-IBIG records. Once they see some
discrepancies in what youve revealed to them and what theyve found out, well, it doesnt exactly portray you as somebody whos
trustworthy so you might as well say goodbye to your much longed-for job offer.

Youll be leaving your teammates and clients high and dry

Dropping off the face of the earth may seem like the best recourse to take when you find yourself in a toxic workplace, but this is
absolutely the last thing you should be doing. Think of the people youll be leavingyour co-workers, clients, customersthese
three Cs would be the most affected when you leave without notice. Are you fine with ruining your relationship with them? Can you
handle having a tainted reputation? Remember that its not only your boss who will be affected by your loss so do think twice about
leaving without notice.
Youll be depriving yourself of financial benefits that come with an official resignation
Lots of companies have policies on back pays which may include conversion to cash of unused leave credits. In other forms of
(official) termination, such as in cases where an employee was made redundant, he/she shall be entitled to a termination pay which
is equivalent to at least one months salary for every year of service. Choosing to leave without giving proper notice automatically
frees you from enjoying these benefits.
We also advise job seekers to have enough cash before leaving a job so leaving without giving proper notice is an absolute NO NO.

Your employer can sue you for damages

For many companies, depriving their former employees who have gone AWOL of compensation is sufficient enough to serve as
punishment. However, companies may choose to go a step higher and get the law involved in the matter. Article 285 of the Labor
Code of the Philippines states that a written notice of resignation must be given to the employer at least one month in advance,
though other companies may still accept notices with less time. Employees who fail to give notice can be held accountable for
breaking the code and may be sued for damages. Keep in mind that failing to give your employer due notice of your resignation also
constitutes a breach of contract which is also against the law. Penalties may range from fines to imprisonment.
So unless you are faced with inhumane and unbearable treatment in the workplace or criminal acts are being done against you and
your family by your employer, you cannot just stop coming to work. And no, failing to show up to work after submitting your
resignation letter (even if its approved) is still a violation of this rule. Whats another two weeks or a month anyway? Just fulfill your
last obligations to your company and only leave when everything is settled and made official.

Youre essentially ruining your reputation whenever you go AWOL

We feel the need to reiterate this reason why leaving without notice is something everyone should avoid doing (unless the situation
calls for it, as explained previously).
Abandoning your job is comparable to having your fist up in defiance to your employers and colleagues, but would it really matter in
the long run? Yes, you may feel satisfied with your action initially, and then what? You end up jobless and theyll soon find a
replacement for you. Is it really worth all the fuss?
And dont forget that you are also just harming yourself when you choose to go AWOL. Worse than ending up without a job or
receiving no financial remuneration at the end of your service, you end up with a ruined reputation which is much harder to repair or
recover in the long run.
Theres a reason why we always remind our readers of this cardinal rule in job hunting and career development: never burn bridges.
Try to make your career path as smooth as possible by avoiding mishaps and complications. You never know when karma can bite
you back hard and it may come sooner rather than later.
_______________
Definition:
AWOL
Absence without official leave
An unexcused absence; covers an absence from duty which has not been approved
Quitting a job without giving notice
(This article will talk about the third definition).
When things at work have gone from bad to worse, the urge to just get up and leave couldnt be more attractive. Things at work may
be comparable to a war zone but going AWOL is like dropping a bomb, the only difference is there would only be one casualty: you.
Curiously, quitting without giving notice is quite prevalent in some industriesweve combed through various forums and have
noticed this worrying trend. We always advice job seekers to make their exits as smooth as possible and here are the reasons why:

You cannot expect a good review from your previous employer

Say goodbye to stellar remarks from your former boss! The fact that you have breached contract by failing to render resignation
already puts you in a bad light in his/her eyes.
Then of course you might wonder, I really dont care for what they think of me, I just want to leave and get away from my horrible
boss/office! In fact, youve already got it all figured out: youve decided to just avoid mentioning this little sore spot in your
employment history.
Well arent you a brave one!
Dont think omitting it from your resume and interviews can absolve you from this messvigilant recruiters will look into your
background before they hire you and would look into your previous employment for info. Its fairly easy for them to track where
youve worked before if they decide to check your SSS/GSIS, TIN, Philhealth and PAG-IBIG records. Once they see some
discrepancies in what youve revealed to them and what theyve found out, well, it doesnt exactly portray you as somebody whos
trustworthy so you might as well say goodbye to your much longed-for job offer.

Youll be leaving your teammates and clients high and dry

Dropping off the face of the earth may seem like the best recourse to take when you find yourself in a toxic workplace, but this is
absolutely the last thing you should be doing. Think of the people youll be leavingyour co-workers, clients, customersthese
three Cs would be the most affected when you leave without notice. Are you fine with ruining your relationship with them? Can you
handle having a tainted reputation? Remember that its not only your boss who will be affected by your loss so do think twice about
leaving without notice.

Youll be depriving yourself of financial benefits that come with an official resignation
Lots of companies have policies on back pays which may include conversion to cash of unused leave credits. In other forms of
(official) termination, such as in cases where an employee was made redundant, he/she shall be entitled to a termination pay which
is equivalent to at least one months salary for every year of service. Choosing to leave without giving proper notice automatically
frees you from enjoying these benefits.
We also advise job seekers to have enough cash before leaving a job so leaving without giving proper notice is an absolute NO NO.
Your employer can sue you for damages
For many companies, depriving their former employees who have gone AWOL of compensation is sufficient enough to serve as
punishment. However, companies may choose to go a step higher and get the law involved in the matter. Article 285 of the Labor
Code of the Philippines states that a written notice of resignation must be given to the employer at least one month in advance,
though other companies may still accept notices with less time. Employees who fail to give notice can be held accountable for
breaking the code and may be sued for damages. Keep in mind that failing to give your employer due notice of your resignation also
constitutes a breach of contract which is also against the law. Penalties may range from fines to imprisonment.
So unless you are faced with inhumane and unbearable treatment in the workplace or criminal acts are being done against you and
your family by your employer, you cannot just stop coming to work. And no, failing to show up to work after submitting your
resignation letter (even if its approved) is still a violation of this rule. Whats another two weeks or a month anyway? Just fulfill your
last obligations to your company and only leave when everything is settled and made official.

Youre essentially ruining your reputation whenever you go AWOL

We feel the need to reiterate this reason why leaving without notice is something everyone should avoid doing (unless the situation
calls for it, as explained previously).
Abandoning your job is comparable to having your fist up in defiance to your employers and colleagues, but would it really matter in
the long run? Yes, you may feel satisfied with your action initially, and then what? You end up jobless and theyll soon find a
replacement for you. Is it really worth all the fuss?
And dont forget that you are also just harming yourself when you choose to go AWOL. Worse than ending up without a job or
receiving no financial remuneration at the end of your service, you end up with a ruined reputation which is much harder to repair or
recover in the long run.
Theres a reason why we always remind our readers of this cardinal rule in job hunting and career development: never burn bridges.
Try to make your career path as smooth as possible by avoiding mishaps and complications. You never know when karma can bite
you back hard and it may come sooner rather than later.
AWOL defense not proved by employer; where the veil of corporate fiction may not be pierced.

HARPOON MARINE SERVICES, INC. and JOSE LIDO T. ROSIT,

G.R. No. 167751

Petitioners,

Present:

CORONA

VELASCO
- versus -

DE CASTRO,

DEL CASTILLO

PEREZ, JJ.

FERNAN H. FRANCISCO,

Promulgated:
Respondent.

March 2, 2011
x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ----------------- - - - - - x
 Satisfactory evidence of a valid or just cause of dismissal is indispensably required in order to protect a laborers right to
security of tenure. In the case before us, the employer presented none despite the burden to prove clearly its cause.

Our Ruling

The petition is partly meritorious.

Respondent was illegally dismissed for failure of petitioners to prove the existence of a just cause for his dismissal.

Petitioners reiterate that respondent was a habitual absentee as indubitably shown by his time card for the period covering
June 1-15, 2001,[27] payroll[28] for the same period as well as the memoranda[29] enumerating his absences subsequent to

June 15, 2001.

Respondent belies these claims and explained that his absence for three days as reflected in the time card was due to petitioner
Rosits prohibition for them to report for work owing to the latters hospitalization. He claims that he was illegally terminated on June
15, 2001 and was subsequently prevented from entering company premises. In defense, petitioners deny terminating respondent on
June 15, 2001, maintaining that petitioner Rosit merely reminded him of his numerous absences. However, in defiance of the
companys order, respondent continued to absent himself, went on AWOL and abandoned his work.

We find no merit in petitioners contention that respondent incurred unexplained and habitual absences and tardiness. A scrutiny of
the time card and payroll discloses that respondent incurred only three days of absence and no record of tardiness. As aptly held by
the NLRC, the time card and payroll presented by petitioners do not show gross and habitual absenteeism and tardiness especially
since respondents explanation of his three-day absence was not denied by petitioners at the first instance before the Labor Arbiter.
No other evidence was presented to show the alleged absences and tardiness. On the other hand, Solares, a co-worker of
respondent has stated under oath that, as their supervisor, respondent was diligent in reporting for work until June 20, 2001 when
they heard the news concerning respondents termination from his job.

Likewise, we are not persuaded with petitioners claim that respondent incurred additional absences, went on AWOL and abandoned
his work. It is worthy to note at this point that petitioners never denied having offered respondent his separation pay. In fact, in their
letter-reply dated September 28, 2001,[30] petitioners intimated that respondent may pick up the amount of P27,584.37 any time he
wants, which amount represents his separation and 13th month pays. Oddly, petitioners deemed it fit to give respondent his
separation pay despite their assertion that there is just cause for his dismissal on the ground of habitual absences. This inconsistent
stand of petitioners bolsters the fact that they wanted to terminate respondent, thus giving more credence to respondents
protestation that he was barred and prevented from reporting for work.

Jurisprudence provides for two essential requirements for abandonment of work to exist. The failure to report for work or absence
without valid or justifiable reason and clear intention to sever the employer-employee relationship x x x manifested by some overt
acts should both concur.[31] Further, the employees deliberate and unjustified refusal to resume his employment without any
intention of returning should be established and proven by the employer.[32]

Petitioners failed to prove that it was respondent who voluntarily refused to report back for work by his defiance and refusal
to accept the memoranda and the notices of absences sent to him. The CA correctly ruled that petitioners failed to present evidence
that they sent these notices to respondents last known address for the purpose of warning him that his continued failure to report
would be construed as abandonment of work. The affidavit of petitioner Harpoons liaison officer that the memoranda/notices were
duly sent to respondent is insufficient and self-serving. Despite being stamped as received, the memoranda do not bear any
signature of respondent to indicate that he actually received the same. There was no proof on how these notices were given to
respondent. Neither was there any other cogent evidence that these were properly received by respondent.

The fact that respondent never prayed for reinstatement and has sought employment in another company which is a
competitor of petitioner Harpoon cannot be construed as his overt acts of abandoning employment. Neither can the delay of four
months be taken as an indication that the respondents filing of a complaint for illegal dismissal is a mere afterthought. Records
show that respondent first attempted to get his separation pay and alleged commissions from the company. It was only after his
requests went unheeded that he resorted to judicial recourse.

In fine, both the NLRC and the CA did not commit manifest error in finding that there was illegal dismissal. The award of
backwages and separation pay in favor of respondent is therefore proper.

Respondent is not entitled to the payment of commissions since the check vouchers and purported list of vessels show vagueness
as to sufficiently prove the claim.
The Labor Arbiter, the NLRC and the CA unanimously held that respondent is entitled to his accrued commissions in the
amount of P10,000.00 for every vessel repaired/constructed by the company or the total amount of P70,000.00 for the seven
vessels repaired/constructed under his supervision.

The Court, however, is inclined to rule otherwise. Examination of the check vouchers presented by respondent reveals that an
amount of P30,000.00 and P10,000.00 alleged as commissions were paid to respondent on June 9, 2000 and September 28, 2000,
respectively. Although the veracity and genuineness of these documents were not effectively disputed by petitioners, nothing in them
provides that commissions were paid to respondent on account of a repair or construction of a vessel. It cannot also be deduced
from said documents for what or for how many vessels the amounts stated therein are for. In other words, the check vouchers
contain very scant details and can hardly be considered as sufficient and substantial evidence to conclude that respondent is
entitled to a commission of P10,000.00 for every vessel repaired or constructed by the company. At most, these vouchers only
showed that respondent was paid on two occasions but were silent as to the specific purpose of payment. The list of vessels
supposedly repaired/constructed by the company neither validates respondents monetary claim as it merely contains an
enumeration of 17 names of vessels and nothing more. No particulars, notation or any clear indication can be found on the list that
the repair or complete construction of seven of the seventeen boats listed therein was supervised or managed by respondent.
Worse, the list is written only on a piece of paper and not on petitioners official stationery and is unverified and unsigned. Verily, its
patent vagueness makes it unworthy of any credence to be used as basis for awarding respondent compensations as alleged
commissions. Aside from these documents, no other competent evidence was presented by respondent to determine the value of
what is properly due him, much less his entitlement to a commission. Respondents claim cannot be based on allegations and
unsubstantiated assertions without any competent document to support it. Certainly, the award of commissions in favor of
respondent in the amount of P70,000.00 should not be allowed as the claim is founded on mere inferences, speculations and
presumptions.

Rosit could not be held solidarily liable with Harpoon for lack of substantial evidence of bad faith and malice on his part in
terminating respondent.

Although we find no error on the part of the NLRC and the CA in declaring the dismissal of respondent illegal, we, however,
are not in accord with the ruling that petitioner Rosit should be held solidarily liable with petitioner Harpoon for the payment of
respondents backwages and separation pay.

As held in the case of MAM Realty Development Corporation v. National Labor Relations Commission,[33] obligations
incurred by [corporate officers], acting as such corporate agents, are not theirs but the direct accountabilities of the corporation they
represent.[34] As such, they should not be generally held jointly and solidarily liable with the corporation. The Court, however, cited
circumstances when solidary liabilities may be imposed, as exceptions:

1. When directors and trustees or, in appropriate cases, the officers of a corporation

(a) vote for or assent to [patently] unlawful acts of the corporation;

(b) act in bad faith or with gross negligence in directing the corporate affairs;
(c) are guilty of conflict of interest to the prejudice of the corporation, its stockholders or members, and other
persons.

2. When the director or officer has consented to the issuance of watered stock or who, having knowledge
thereof, did not forthwith file with the corporate secretary his written objection thereto.

3. When a director, trustee or officer has contractually agreed or stipulated to hold himself personally and
solidarily liable with the corporation.

4. When a director, trustee or officer is made, by specific provision of law, personally liable for his corporate
action.[35]

The general rule is grounded on the theory that a corporation has a legal personality separate and distinct from the persons
comprising it.[36] To warrant the piercing of the veil of corporate fiction, the officers bad faith or wrongdoing must be established
clearly and convincingly as [b]ad faith is never presumed.[37]

In the case at bench, the CAs basis for petitioner Rosits liability was that he acted in bad faith when he approached
respondent and told him that the company could no longer afford his salary and that he will be paid instead his separation pay and
accrued commissions. This finding, however, could not substantially justify the holding of any personal liability against petitioner
Rosit. The records are bereft of any other satisfactory evidence that petitioner Rosit acted in bad faith with gross or inexcusable
negligence, or that he acted outside the scope of his authority as company president. Indeed, petitioner Rosit informed respondent
that the company wishes to terminate his services since it could no longer afford his salary. Moreover, the promise of separation pay,
according to petitioners, was out of goodwill and magnanimity. At the most, petitioner Rosits actuations only show the illegality of
the manner of effecting respondents termination from service due to absence of just or valid cause and non-observance of
procedural due process but do not point to any malice or bad faith on his part. Besides, good faith is still presumed. In addition,
liability only attaches if the officer has assented to patently unlawful acts of the corporation.

Thus, it was error for the CA to hold petitioner Rosit solidarily liable with petitioner Harpoon for illegally dismissing
respondent
WHEREFORE, the petition is PARTLY GRANTED. The Decision dated January 26, 2005 and Resolution dated April 12,
2005 of the Court of Appeals in CA-G.R. SP No. 79630 finding respondent Fernan H. Francisco to have been illegally dismissed and
awarding him backwages and separation pay are AFFIRMED. The award of commissions in his favor is, however, DELETED.
Petitioner Jose Lido T. Rosit is ABSOLVED from the liability adjudged against co-petitioner Harpoon Marine Services, Incorporated.

SO ORDERED.

Notes:
[31] Henlin Panay Company v. National Labor Relations Commission, G.R. No. 180718, October 23, 2009, 604 SCRA 362, 369.
[32] Samarca v. Arc-Men Industries, Inc., 459 Phil. 506, 515 (2003).
[33] 314 Phil. 838 (1995).
[34] Id. at 844.
[35] Id. at 844-845.
[36] Petron Corporation v. National Labor Relations Commissions, G.R. No. 154532, October 27, 2006, 505 SCRA 596, 613.
[37] Carag v. National Labor Relations Commission, G.R. No. 147590, April 2, 2007, 520 SCRA 28, 49.
Atty. Manuel J. Laserna Jr. at 1:14 AM
Share
Heres what you need to know about dismissing your AWOL employee

Absenteeism without permission is a disciplinary offence and you must deal with it as misconduct, says AWOL! Your guide to
dealing with employees who abscond.

This means, if your employee goes AWOL, you must hold a disciplinary hearing and give him a chance to justify his absence.

In terms of labour law, dismissal is normally too harsh for a first offence. This is also true if the absence is for a short period and
theres a reasonable explanation for it.

But for repeat unauthorised absences or one of an unreasonably long time, you can dismiss your employee. You can also dismiss if,
for example, your employee plays a key role and his absence holds up production and causes you major losses.

*********** Advertisement **********

What can you do when you think your employee's gone AWOL?

Your employee hasnt shown up for work all week. And you have no idea if hes ever coming back to work!

Youve tried getting hold of him to no avail.

What can you do when you think your employee has absconded?

You have to follow the right process before you dismiss him

Click here to find out how to deal abscondment legally

***********************************

This example shows how to deal with a case of an employee whos gone AWOL

Toms a security guard. He works the night shift at a warehouse.

His supervisor decides to visit the site at 22:30, but he doesnt find Tom in the security hut. Nor is he patrolling the warehouse
premises as required on an hourly basis.

The supervisor waits for about 30 minutes, until he sees Tom coming with food and a drink. Tom explains that he usually brings his
own lunch to work. But he forgot, so he went to the nearest petrol station to buy food.

Toms supervisor then decides to hold a disciplinary hearing.

During the hearing, Tom admits he can contact the control room via telephone or radio. But he didnt call to get permission or help in
getting his food.

Following the hearing, Tom gets a first written warning for unauthorised absence. This because the premises were at risk for about
30 minutes.

While this is quite a serious offence, those taking part in the hearing concluded dismissal would be too harsh. They decided a
written warning is good enough especially since this is Toms first offence.

There you have it: We hope this information will help you deal with your AWOL employee correctly so you can avoid an unfair
dismissal case.

PS: For more information on dealing with employees whove gone AWOL, check out AWOL! Your guide to dealing with employees
who abscond.