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[VETERANS SECURITY AGENCY v. FELIPE GONZALVO](https://lawyerly.ph/juris/view/ca3c2?user=fbGU2WFpmaitMVEVGZ2lBVW5xZ2RVdz09)
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DIVISION

[ GR NO. 159293, Dec 16, 2005 ]

VETERANS SECURITY AGENCY v. FELIPE GONZALVO +

DECISION

514 Phil. 488

SECOND DIVISION

[ G.R. NO. 159293, December 16, 2005 ]

VETERANS SECURITY AGENCY, INC. AND JESUS R. VARGAS, PETITIONERS, VS. FELIPE GONZALVO, JR., RESPONDENT.

D E C I S I O N

CHICO-NAZARIO, J.:

In this petition for review, petitioner VETERANS SECURITY AGENCY, INC. (VSAI), represented by its Executive Vice-President and General Manager, JESUS R. VARGAS, challenges the Decision[1] dated 27 January 2003 of the Court of Appeals in CA-G.R. SP No. 67043, affirming the Decision of the National Labor Relations Commission (NLRC). The NLRC reversed the Decision of the Labor Arbiter and declared respondent to have been illegally dismissed. VSAI likewise implores this Court to take a look at the Resolution[2] dated 19 June 2003 of the Court of Appeals denying their motion for reconsideration.

The evidence shows that VSAI hired respondent as a security guard, with initial assignment at Overseas Workers Welfare Administration (OWWA) collection unit at the Philippines Overseas Employment Agency building in Ortigas, Pasig City from July 1991 to October 1992. His next tour of duty was at the Citytrust Bank from 20 November 1992 to 31 December 1992. He was then detailed at the National Power Corporation in Plaridel, Bulacan from January 1993 to January 1994. In February 1994 to April 1995, he was deployed at the University of Santo Tomas.

Meanwhile, on 24 April 1995, respondent brought his complaint against VSAI before the Social Security System (SSS) for non-remittance of SSS contributions. As a result, petitioners formally remitted his contributions to the SSS.

In May 1995, respondent was transferred to the OWWA's main office in Pasig City.

On 26 August 1998, VSAI again failed to remit to the SSS his contributions and loan payments prompting respondent to file another complaint against VSAI before the SSS for non-remittance of contributions and loan payments. As a result, the OWWA Detachment Commander intimated to respondent that VSAI was annoyed by the fact that he had commenced the said action against it.

Thereafter, VSAI hired three (3) additional guards for the OWWA parking lot located at San Luis Street, Pasay City. In a meeting sometime in December 1998, OWWA's Chief of Services and Property Division announced that the lease contract for said parking lot was to expire on 07 January 1999 and the three newly-hired guards posted there would have to report to VSAI's office.

On 30 December 1998, respondent, who was then manning the OWWA main office, was made to swap postings with one of these three guards manning the OWWA parking lot. This came as a surprise to respondent because such swapping would be to his disadvantage as he would have to give up his post at the OWWA main office where he was serving for almost three (3) years to give way to one of the newly-hired security guards who would soon be displaced from the OWWA parking lot as a result of the expiration of the lease contract for said property. Resultantly, on 7 January 1999, upon the expiration of the lease contract on the parking lot, the services of the guards temporarily assigned there were withdrawn, including that of respondent.

The next day, when respondent reported for work at the OWWA Detachment Commander, he was told that he would have to be assigned somewhere else because his spouse was also assigned as a lady guard at the OWWA. This came as an utter surprise to the respondent who was single at that time.

VSAI informed respondent that his redeployment would be at the Department of Labor and Employment (DOLE). When respondent reported to the DOLE Detachment Commander, he was required to renew his Barangay, police and National Bureau of Investigation (NBI) clearances and to undergo neurological examination. Respondent requested petitioners to assign him at either the OWWA Office in Intramuros, Manila or at the OWWA Collection Unit located in Pasig City, so he need not reapply and renew his employment requirements, but was denied. From then on, respondent was placed on a "floating status" sans pay.

Consequently, on 14 April 1999, respondent filed a complaint against petitioner VSAI and its President, Alfredo Vargas, Jr., for overtime pay, premium for holiday and rest day, holiday pay, service incentive leave pay, thirteenth (13th) month pay and non-remittance of SSS contribution starting January 1999.[3] Respondent alleged, in his Position Paper, that he was terminated by VSAI to hit back at him for his filing of two (2) complaints against the company for non-remittances of his contributions and loan payments with the SSS. [4]

On 29 September 1999, respondent filed an additional complaint for illegal dismissal with claims for separation pay and attorney's fees.[5]

In its Position Paper, VSAI retorted that on 07 January 1999, it received a memorandum from Rafael C. Velez, Officer-in-Charge of the Administrative Department of OWWA, stating that OWWA's lease contract covering the parking area had expired for which reason the services of the three (3) guards, including respondent, had to be withdrawn. On 8 January 1999, respondent was given a posting assignment at the DOLE in lieu of his OWWA assignment, but was required to undergo an interview as well as neurological examination before final posting. Respondent did not report to work thereafter, although VSAI sent no less than three (3) memoranda for him to report for work. In its Position Paper, VSAI averred that it would submit copies of the payrolls for the pertinent periods to the Labor Arbiter to show that respondent had been paid in accordance with existing labor laws. However, these were never submitted.

On 08 February 2000, the Labor Arbiter dismissed the complaint for lack of merit. The NLRC reversed the decision of the Labor Arbiter in a Decision dated 24 April 2001, with the following fallo:
WHEREFORE, the assailed decision is hereby REVERSED and SET ASIDE and a new one entered declaring complainant-appellant's dismissal as illegal and ordering respondent-appellee to pay him his separation pays equivalent to one-month salary per year of service and his money claims of night shift differential pay, service incentive leave, legal holiday pay, overtime pay, computed three years backward, as follows:

1.) Separation  
  P198 x 26 days x 7 yrs.
P36,036.00 
 
2.) Salary differential from Jan. 8, 1996 to Jan. 8, 1999 = 3 yrs.
 
- From Jan. 8, 1996 to Feb.1, 1996= 76 mos
P8,335.05- 4,350 (P145.00 x 30 days) = P3,985.05 x .70 mos.
P 3,028.64 
 
-From Feb.2, 1996 to Apr. 30, 1996 = 3 mos.
P9,254.76 4,830 (161.00 x 30 days) = P4,424.76 x 3 mos.
13,274.28 
   
-May 1, 1996 to Feb. 5, 1997 = 9.2 mos
P9,484.71 4,950 (165.00 x 30 days) = P4,946.95 x 2.8 mos.
41,719.33 
   
-Feb.6, 1997 to April 30, 1997 = 2.8 mos
P10,346.95  5,400 (180.00 x 30 days) = P4,946.95 x 2.8 mos.
13,851.46 
 
-May 1, 1997 to Feb. 5, 1998 = 9.2 mos
P10,634.37 5,550 (180.00 x 30 days) = P4,946.95 x 2.8 mos.
 46,776.20 
 
 -Feb. 6, 1998 to Jan. 8,1999 = 11.06 mos
P11,381.65 5,940 (P198.00 x 30 days) = P5,441.65 x 11.06 mos.
60,184.65  
 
Total
P178,834.56.  
   
GRAND TOTAL
P214,870.56[6]
On 27 January 2003, the Court of Appeals affirmed the ruling of the NLRC. VSAI's motion for reconsideration was denied by the Court of Appeals in the Resolution[7] of 19 June 2003.

Hard done by the said ruling, petitioner now comes to this Court as a final recourse via the instant appeal assailing the Decision and Resolution of the Court of Appeals on the following assignment of errors:
  1. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS AND REVERSIBLE ERROR WHEN IT HELD THAT THE RESPONDENT WAS ILLEGALLY DISMISSED DESPITE A JUDICIAL ADMISSION BY RESPONDENT THAT HE WAS OFFERED SENTINEL DUTY IMMEDIATELY AFTER HIS RECALL FROM HIS POSTING ASSIGNMENT AT THE PREMISES OF OVERSEAS WORKERS WELFARE ADMINISTRATION, (OWWA).

  2. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS AND REVERSIBLE ERROR WHEN IT SUSTAINED THE AWARD BY THE NATIONAL LABOR RELATIONS COMMISSION (NLRC), OF OVERTIME PAY TO THE RESPONDENT DESPITE A FINDING BY THE NLRC THAT THERE WAS NO IOTA OF EVIDENCE TO SATISFY THE BURDEN OF PROOF REQUIRED TO SUPPORT THE MONEY CLAIM.[8]
The issue of whether or not respondent was constructively dismissed is the bedrock of the petition. Related to this is the issue of whether or not respondent had abandoned his job.

VSAI ardently claims that there was no dismissal, constructive or otherwise. VSAI claims that respondent abandoned his post and went on Absence Without Leave. The evidence, however, points to a different direction.

Constructive dismissal exist when an act of clear discrimination, insensibility or disdain on the part of the employer has become so unbearable as to leave an employee with no choice but to forego continued employment.[9] On the other hand, abandonment, as a just and valid cause for termination, requires a deliberate and unjustified refusal of an employee to resume his work, coupled with a clear absence of any intention of returning to his or her work. Abandonment is incompatible with constructive dismissal.[10]

We find the absence of abandonment, in this case, as there was no deliberate intent on the part of the respondent to abandon his employment with VSAI. A strong indication of the intention of respondent to resume work is that on several dates, after his last assignment on January 1999, he reported to the VSAI's office regularly for reassignment, but was not given any. He then lost no time in filing the illegal dismissal case. An employee who forthwith takes steps to protest his layoff cannot by any stretch of imagination be said to have abandoned his work and the filing of the complaint is proof enough og his desire to return to work, thus negating any suggestion of abandonment.[11] Significantly, respondent, in his position paper,[12] prayed for a regular assignment or in the alternative VSAI should be ordered to pay salaries until the time he is gainfully employed. Respondent's entreaty to be given a regular posting is antithetical to a charge of abandonment.

Moreover, the burden of proving that respondent has abandoned his job rests with VSAI. However, VSAI failed miserably to discharge the burden. VSAI adduced in evidence three memos allegedly sent via registered mail to respondent, but as the NLRC and the Court of Appeals ruled, the evidentiary value of these documents is of dubious authenticity as the memos had not been properly identified and were only attached belatedly to the petition.[13]  Moreover, we note that there was no registry return card for these memos so there is no way of telling who received these memos, if they were received at all by respondent. What is more, the three memos appear to be exact copies of each other except for the signatories and the dates and the way the addressees were written. The three memos commonly stated, viz:
Re: Directive To Report to VSAI
Operations Center For
Re-Assignment

Pursuant to the Standing Policy of our Agency to give priority assignment to security guards who have been relieved from their post of assignment and who are on a floating status, you are hereby directed to report soonest to the VSAI Personnel Office at the above address for re-assignment.

Failure to comply will be tantamount to your non-interest for re-assignment and will constitute a waiver on your part of your rights under the circumstances.

Please acknowledge receipt hereof by affixing your signature over your printed name on the space provided hereunder.[14] (Emphasis supplied.)
This similarity in form and substance of the memos engenders the impression that they were just pro-forma letters aimed at making it appear that VSAI have not dismissed respondent and that on three occasions it had asked respondent to report for work, but which notices the latter refused to heed. Further, it baffles the Court that the second memorandum did not mention about the previous memorandum sent to respondent. Neither did the third memorandum mention anything about the two previous memos.

We find it equally implausible that none of the 3 memos touched on respondent's alleged refusal to accept the posts assigned to him and the abandonment of his posts considering that such acts constitute willful disobedience and gross neglect of duty which are valid grounds for dismissal.[15]

VSAI capitalized on the fact that on 7 January 1999, it received a memorandum from the Officer-in-Charge of the Administrative Department of OWWA, informing that OWWA's lease contract covering the parking area had expired for which reason the services of the three (3) guards, including respondent, had to be withdrawn. The uncontroverted fact, however, is that respondent was already previously regularly detailed at the OWWA main office, but he was uprooted from this assignment and was tossed at the OWWA parking lot in Pasay City with the knowledge that the security services in that area would soon expire, as a consequence of which he would have to be reassigned somewhere else. As the facts stand, reassignment to a new client, in this case, necessitates a renewal of Barangay clearance, training certificate, neurological test, and ultimately passing the interview by the client. In effect, he would reapply with the next client of VSAI, which is the DOLE, and in the process of application, be on "floating status" without pay, with no assurance of acceptance despite securing the said documents as he would still have to undergo the rigors of an interview. Indeed, respondent was then left uncertain as to when and where his next assignment would be.

There is likewise something devious with the fact that a new recruit replaced respondent from his previous posting at OWWA main office relegating respondent to a short-lived posting at the OWWA Pasay City parking lot that would soon fold-up.

VSAI further contends that respondent was only provisionally relieved from his last post and not dismissed from employment. Hence, the filing of the illegal dismissal case in April 1999 was premature. If at all, it is argued that respondent should be considered on temporary "off-detail" status.

In Superstar Security Agency, Inc. vs. NLRC,[16] we held that placing an employee on temporary "off-detail" is not equivalent to dismissal provided that such temporary inactivity should continue only for a period of six (6) months. Otherwise, the security agency concerned could be held liable for constructive dismissal under Article 286 of the Labor Code which reads:
Art. 286. When employment not deemed terminated. The bona fide suspension of the operation of a business or undertaking for a period not exceeding six (6) months, or the fulfillment by the employee of a military or civic duty shall not terminate employment. In all such cases, the employer shall reinstate the employee to his former position without loss of seniority rights if he indicates his desire to resume his work not later than one (1) month from the resumption of operations of his employer or from his relief from the military or civic duty. (Emphasis supplied.)
Article 286 applies only when there is a bona fide suspension of the employer's operation of a business or undertaking for a period not exceeding six (6) months. In security agency parlance, being placed "off detail" or on "floating" status means "waiting to be posted."[17] Here, prior to his tour of duty in Pasay City, respondent had a regular posting, but he was dislodged by a newly-hired security guard and respondent had to be assigned to a client whose service contract was to end. Thus, there was no suspension of operation, business or undertaking, bona fide or not, that would have justified placing the respondent off-detail and making him wait for a period of more than six months.[18] In the same vein, the records are shorn of any indication that respondent had to be placed on temporary "off-detail" for lack of available post. VSAI just stopped giving respondent his assignment after his duty at the OWWA Parking Lot in Pasay City.

True, it is the inherent prerogative of an employer to transfer and reassign its employees to meet the requirements of its business. Be that as it may, the prerogative of the management to transfer its employees must be exercised without grave abuse of discretion. The exercise of the prerogative should not defeat an employee's right to security of tenure. The employer's privilege to transfer its employees to different workstations cannot be used as a subterfuge to rid itself of an undesirable worker.[19]

Here, riled by respondent's consecutive filing of complaint against it for nonpayment of SSS contributions, VSAI had been tossing respondent to different stations thereafter. From his assignment at University of Santo Tomas for almost a year, he was assigned at the OWWA main Office in Pasig where he served for more than three years. After three years at the OWWA main office, he was transferred to the OWWA Pasay City parking lot knowing that the security services will end forthwith. VSAI even concocted the reason that he had to be assigned somewhere because his spouse was already a lady guard assigned at the OWWA main office. Inasmuch as respondent was single at that time, this was obviously a mere fa├žade to rid of respondent who was no longer in VSAI's good graces.

The only logical conclusion from the foregoing discussion is that the VSAI constructively dismissed the respondent. This ruling is in rhyme with the findings of the Court of Appeals and the NLRC. Dismissal is the ultimate penalty that can be meted to an employee. Inasmuch as petitioners failed to adduce clear and convincing evidence to support the legality of respondent's dismissal, the latter is entitled to reinstatement and back wages as a necessary consequence. However, reinstatement is no longer feasible in this case because of the palpable strained relations, thus, separation pay is awarded in lieu of reinstatement.[20]

Anent monetary claims, VSAI ardently argues that such demands must be denied for failure of respondent to adduce evidence thereon. Such logic could not withstand judicial muster.

On this, the Court could not be any clearer in Mayon Hotel & Restaurant vs. Rolando Adana, et al,[21] when we held that inasmuch as respondents therein have set out with particularity in their complaint, position paper, affidavits and other documents the labor standard benefits they are entitled to, and which they alleged that petitioners therein have failed to pay them, it became incumbent upon the employers to prove that they have paid these money claims. This is in tune with the general precept that: "one who pleads payment has the burden of proving it, and even where the employees must allege nonpayment, the general rule is that the burden rests on the defendant to prove nonpayment, rather than on the plaintiff to prove non payment."[22] The reason for the rule is that the pertinent personnel files, payrolls, records, remittances and other similar documents which will show that overtime, differentials, service incentive leave and other claims of workers have been paid are not in the possession of the worker but in the custody and absolute control of the employer.[23]

In the case at bar, VSAI failed to discharge the burden of proof by choosing not to fully and completely disclose information and present the necessary documents to prove payment of labor standard benefits due to respondent. Despite repeated promises, i.e., in its five-paged Position Paper[24] or in its two-paged Reply,[25] that it will proffer in evidence the payrolls which it admitted are the best evidence to resolve the monetary claims of respondent, VSAI failed to submit the pertinent employee files, which would show that respondent rendered work entitling him to payment for overtime work, night shift differential, service incentive leave, and premium pay for work on holidays and rest day. Indeed, VSAI's failure to submit the necessary documents documents which are not in respondent's possession but in the custody and absolute control of VSAI in spite of its previous undertaking to do so, gives rise to the presumption that their presentation is prejudicial to its cause.[26] Consequently, it failed to discharge the onus prabandi thereby making it liable for such claims to respondent.[27]

In sum, respondent having been illegally dismissed, he is entitled to separation pay and salary differentials as awarded by the NLRC whose computations the Court defers to, it being a matter failing within its expertise.[28]

One final note. The cavalier fashion by which the Labor Arbiter dealt with this case must not go unnoticed. The Decision, in its totality, was merely two pages and the rationale for the denial of respondent's claims was sketchily couched in this lone paragraph, to wit:
This Office is inclined to uphold the position of the respondents. Indeed, payrolls of service contractors which are performing specific work for a government office are being scrutinized by the auditors of the Commission on Audit. These auditors will not allow the payment of the billings of the service contractors unless there is sufficient showing that the employees of the service contractors are paid in accordance with laws.[29]
There is absolutely no evidence on record to support the above-quoted pronouncement of the Labor Arbiter. In the ordinary course of things, it is far-fetched that COA auditors would investigate if the employees of the service contractors of government offices are properly paid. The vinculum that binds the government offices to the contractors is the contract of service. Thus, the COA auditors are normally limited to ascertaining if the payments made by the government agencies are in accordance with the service contracts and if they are properly documented with billings and receipts of payments. Ceteris paribus, other things considered equal, COA auditors are not tasked to look into the payrolls of the service contractors to make sure that their employees are properly compensated in allowing or disallowing the payment of service contractors.

It was, therefore, sheer whim on the part of the Labor Arbiter to dismiss the claims of respondent on the basis of a mere presumption without stating its legal basis.

With unfading fervor, the Court again strikes a chord among the quasi-judicial agencies to shun from treating labor cases flippantly. In the avuncular case of San Jose v. NLRC,[30] the Court smote hard blows on the Labor Arbiter therein for his slapdash manner of deciding a case, viz:
Labor Arbiters should exert all efforts to cite statutory provisions and/or judicial decision to buttress their dispositions. An Arbiter cannot rely on simplistic statements, generalizations, and assumptions. These are not substitutes for reasoned judgment. Had the Labor Arbiter exerted more research efforts, support for the Decision could have been found in pertinent provisions of the Labor Code, its Implementing Rules, and germane decisions of the Supreme Court.[31]
Indeed, not only do the claims of employees boil down to the lucre of wages, separation pay, etc., although these are the lifeblood of a minimum wage earner such as the respondent herein. Perhaps more importantly, at stake is a workingman's years of sweat and toil. Here, respondent had rendered nine (9) years of unsullied hard work, but his reward came in a long-drawn-out floating status without pay to chastise him for lodging a legitimate grievance against VSAI for non-remittance of SSS payments.

Indeed, the Court ought to deny this petition lest the wheels of justice for aggrieved workingmen grind to a halt. We ought to abate the culture of employers bestowing security of tenure to employees, not on the basis of the latter's performance on the job, but on their ability to toe the line set by their employer and endure in silence the flagrant incursion of their rights, zealously protected by our labor laws and by the Constitution, no less.

WHEREFORE, the present petition is hereby DENIED. Accordingly, the Decision and the Resolution dated 27 January 2003 and 19 June 2003, of the Court of Appeals in CA-G.R. SP No. 67043, are hereby AFFIRMED.

Costs against petitioners.

SO ORDERED.

Puno, (Chairman), Austria-Martinez, Callejo, Sr., and Tinga, JJ., concur.



[1] Penned by Associate Justice Portia Aliño-Hormachuelos with Associate Justices Jose L. Sabio, Jr. and Amelita G. Tolentino, concurring. Rollo, pp. 52-60.

[2] Rollo, pp. 61-62.

[3] Rollo, p. 68.

[4] Rollo, pp. 80-81.

[5] Rollo, p. 82.

[6] Rollo, pp. 124-125.

[7] Rollo, pp. 61-62.

[8] Rollo, pp. 27-28.

[9] Soliman Security Services, Inc. v. Court of Appeals, G.R. No. 143215, 11 July 2002, 384 SCRA 514, citing Blue Dairy Corp. v. NLRC, G.R. No. 129843, 14 September 1999, 314 SCRA 410.

[10] Ibid.

[11] Hagonoy Rural Bank, Inc. v. NLRC, G.R. No. 122075, 28 January 1998, 285 SCRA 297, 309.

[12] Rollo, p. 81.

[13] Rollo, p. 58

[14] Rollo, pp. 65-67.

[15] Philippine Industrial Security Agency Corporation v. Dapiton, G.R. No. 127421, 08 December 1999, 320 SCRA 124, 136, citing Article 282 of the Labor Code.

[16] G.R. No. 81493, 03 April 1990, 184 SCRA 74.

[17] Sentinel Security Agency v. NLRC, G.R. No. 122468, 03 September 1998, 295 SCRA 123.

[18] Superstar Security Agency v. NLRC, supra, note 16.

[19] Philippine Industrial Security Agency Corporation vs. Dapiton, supra, note 15.

[20] Nagusara v. Cruz, G.R. Nos. 117936-37, 20 May 1998, 290 SCRA 245, 255.

[21] G.R. No. 157634, 16 May 2005, 458 SCRA 609. See also Agabon v. NLRC, 17 November 2004, G.R. No. 158693, 442 SCRA 573, 618.

[22] Id., p. 642.

[23] Ibid.

[24] Rollo, pp. 69-73.

[25] Rollo, p. 85.

[26] Mayon Hotel & Restaurant v. Rolando Adana, et al., supra, note 21.

[27] Agabon v. NLRC, supra, note 21.

[28]  Villaruel v. NLRC, G.R. No. 120180, 20 January 1998, 284 SCRA 399, 407.

[29] Rollo, p. 103.

[30] San Jose v. NLRC, G.R. No. 121227, 17 August 1998, 294 SCRA 336.

[31] Id., pp. 343-344.
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