Republic of the Philippines

Department of Labor and Employment

NATIONAL LABOR RELATIONS COMMISSION
Regional Arbitration Branch No. III
City of San Fernando, Pampanga
***

MR. E
Complainant,

- versus- NLRC CASE NO. RAB-lll-12-34567-89

ABC CORPORATION,
MR. A-President, and MR.
C- HR Head
Respondents.

x---------------------------------------------x

D E C I S I O N
On September 1, 2020, herein complainant Mr. E, aggrieved by his
termination filed a complaint against his employer ABC Corporation
(Company), its President A, Manager B and HR Head C, herein
respondents, for illegal dismissal, non-payment of 13th month pay, non-
payment of separation pay, and moral and exemplary damages, non-
payment of holiday and rest pay, full back wages, money claims and
attorney’s fees.
The complainant alleged that he was illegally dismissed. On the other
hand, respondents countered that the complainant voluntarily resigned
from the Company.
There being no settlement arrived at between the parties during the
conciliation meetings, they were directed to submit their respective
Position Papers. The parties went further to submit their respective
Replies and Rejoinders. The case was set for hearing/conference on
September 9, 2020 at 9:00 in the morning. On said date, the respondents
were represented by Atty. Ernesto Adriano and Atty. Chloe Galita while
complainant was represented by Atty. Kristienne Bernabe and Atty.
Bayani Ramos. This Office encouraged the parties to arrive at a
settlement. The complainant stood firm on his proposal for settlement
which is reinstatement with full backwages and damages for his mental
anguish, sleepless night and besmirched reputation. The respondents
requested for a reset of the conference to give them time to evaluate the
proposal of the complainant.
The subsequent hearing/conference was set on Sept. 16, 2020. On
said date, the respondents offered a counter-proposal to which the
complainant rejected. Being the case, both parties manifested to this
Office to submit the case for resolution.
This Office goes now to the allegations of the parties.
The complainant, in his Position Paper, alleged among others, that:
On April 15, 2000, he started his work at ABC Corporation as helper then
as shop man at the time of filing of complaint with a monthly salary of
P10,000.00. He argued that he refused to report for work due to great fear
on his health from COVID and took his leave of absence for a month.
Complainant further alleged that he was illegally dismissed. Being a
regular employee as defined by law (Labor Code, as amended), he being
hired and engaged to perform works (Helper and was then a Shop man)
which are clearly and indisputably necessary or desirable in the usual
business or trade of respondent ABC, a company engaged in retreading or
recapping of tire services, he cannot be dismissed except for ground/s or
cause/s as provided for by the Labor Code, as amended. Definitely, he
cannot be dismissed without any ground or cause at all, as in this case.
Furthermore, complainant was also not paid his 13th month pay,
separation pay and holiday pay and rest day pay, and full backwages.
On the other hand, respondents, in their position paper, alleged that,
contrary also to the allegations of herein complainant, he was not dismissed by
ABC Corporation. Instead, he voluntarily resigned from his work. Respondents
further alleged that the company has the handwritten resignation letter of
complainant dated June 11, 2020 in Tagalog dialect which states that his
resignation was prompted by his desire to return to the province with his family
upon request by his sick mother, apart from the need to attend to their farm and
his intention to take a much needed rest. Since the submission of his resignation
letter, complainant never reported for work and could no longer be located.
Furthermore, the demand of the complainant to claim his separation pay is an
indication that he totally resigned from his work. Respondents added that
complainant is not entitled to separation pay, moral and exemplary damages and
attorney’s fees because of complainant’s voluntary resignation from the
company. Respondents posited that they are willing to pay the rest day pay,
holiday pay and 13th month pay provided that complainant must present proof
of non-payment of such.

Complainant, in his Reply, maintained that he was illegally dismissed and

that he did not resigned voluntarily. He added that he formally filed his leave
of absence for one month through C, who have formally acknowledged
receipt of his leave of absence and approved the same. Further, that after
being illegally dismissed, complainant have not received his separation
pay from the company and that he asked helped from the HR Department
to give him his separation pay, 13th month pay, holiday pay, rest day pay
and backwages.
Respondents, in their Rejoinder, maintained that there was no illegal dismissal,
because the complainant voluntarily resigned from his work. Respondents added
that bare allegations of constructive dismissal, when uncorroborated by the
evidence on record, cannot be given credence. The respondents reiterated that it
has the handwritten resignation letter of complainant dated June 11, 2020 in
Tagalog dialect. Further, contrary to the complainant’s contention, he is not
entitled to 13th month pay, holiday and rest day pay as these claims were never
included in his position paper.

Hence, this case.

The issues for resolution are:
1. Whether or not complainant was illegally dismissed
2. Whether or not complainant is entitled to separation pay
3. Whether or not complainant is entitled to backwages, moral
and exemplary damages, rest day pay, holiday pay, and 13 th month
pay.

Anent the first issue -

After careful perusal of the pleadings and documents submitted
by the parties as well as the arguments raised by them, this Office
strongly believes that complainant was illegally dismissed.
For one, the respondents failed to specifically deny nor refute
the allegation of the complainant that he formally filed his leave of
absence. Instead, respondents just presented a resignation letter to
support its claim of complainant’s resignation.
For better understanding of the difference between resignation
and constructive dismissal, this Office is guided by the decision of
the court in the case of Central Azucarera de Bais Inc. vs Siason (Gr
215555, July 29, 2015), where the Supreme Court through Associate
Justice Estela Perlas-Bernabe stated:

“Resignation is the formal pronouncement

or relinquishment of a position or office. It is the
voluntary act of an employee who is in a situation
where he believes that personal reasons cannot be
sacrificed in favor of the exigency of the service,
and he has then no other choice but to
disassociate himself from employment. The intent
to relinquish must concur with the overt act of
relinquishment; hence, the acts of the employee
before and after the alleged resignation must be
 considered in determining whether he in fact
intended to terminate his employment. In illegal
dismissal cases, it is a fundamental rule that when
an employer interposes the defense of resignation,
on him necessarily rests the burden to prove that
the employee indeed voluntarily resigned.

“In contrast, constructive dismissal exists

where there is cessation of work because
continued employment is rendered impossible,
unreasonable or unlikely, as an offer involving a
demotion in rank or a diminution in pay and other
benefits. Aptly called a dismissal in disguise or an
act amounting to dismissal but made to appear as
if it were not, constructive dismissal may,
likewise, exist if an act of clear discrimination,
insensibility or disdain by an employer becomes
so unbearable on the part of the employee that it
could foreclose any choice by him except to
forego his continued employment. It must be
noted, however, that bare allegations of
constructive dismissal, when uncorroborated by
the evidence on record, cannot be given
credence.”

This Office does not agree that the complainant voluntarily

resigned from the Company when he intended to return to work for a
specific period of time. The alleged voluntary acts of the complainant
cannot be considered as an overt act of relinquishment of his
employment. It must be noted that complainant after his leave of
absence reported back to work but was denied entry inside the
company premises. The complainant’s overt act of repeatedly
communicating to his manager and reporting back to work lead this
Office to conclude that the complainant intended to report back to
work after his leave of absence.
Assuming but not conceding that the complainant never
reported back to work, his failure to report back to work was justified
when at the time of the alleged non-reporting to work, there is an
“Enhanced Community Lockdown” implemented by the National
Government to battle the infectious COVID-19. The respondents
failed to convince this Office that the nature of the company is an
essential one to continue its operations during the pandemic. It must
be noted that only those business which are essential in nature are
allowed to continue their business operations provided that such
operation are in accordance with the protocols provided by the
National Government. With this, assuming that complainant failed to
report work, his absence was justified and should not be considered
as a relinquishment of his employment.
 This Office should also point out, assuming but not conceding,
that the complainant filed his resignation letter and the company
accepted it, the respondents cannot expect the complainant to return
back to work when such resignation was accepted.
Considering the foregoing arguments, this Office is in view
that there was no resignation by the complainant. Thus, the
complainant WAS ILLEGALLY DISMISSED.

Anent the second issue -

The conclusion of this Office that there was an illegal dismissal would
lead us to rule that the complainant is not entitled to separation pay. The
Supreme Court in the case of BANI RURAL BANK INC. ENOC
THEATER I AND II and/or RAFAEL DE GUZMAN vs TERESA DE
GUZMAN, EDGAR C. TAN and TERESA G. TAN held that:

“Article 279 of the Labor Code, as

amended, provides backwages and reinstatement as
basic awards and consequences of illegal dismissal:

Article 279. Security of Tenure. -x x x 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
their monetary equivalent computed from the time his
compensation was withheld from him up to the time of
his actual reinstatement.

By jurisprudence derived from this provision,

separation pay may [also] be awarded to an illegally
dismissed employee in lieu of reinstatement. Section
4(b), Rule I of the Rules Implementing Book VI of the
Labor Code provides the following instances when the
award of separation pay, in lieu of reinstatement to an
illegally dismissed employee, is proper: (a) when
reinstatement is no longer possible, in cases where the
dismissed employee s position is no longer available;
(b) the continued relationship between the employer
and the employee is no longer viable due to the
strained relations between them; and (c) when the
dismissed employee opted not to be reinstated, or the
payment of se aration benefits would be for the best
interest of the parties involved. In these instances,
separation pay is the alternative remedy to
reinstatement in addition to the award of
backwages. The payment of separation pay and
 reinstatement are exclusive remedies. The payment of
separation pay replaces the legal consequences of
reinstatement to an employee who was illegally
dismissed. Thus, an illegally dismissed employee is
entitled to two reliefs: backwages and reinstatement.
The two reliefs provided are separate and distinct. In
instances where reinstatement is no longer feasible
because of strained relations between the employee
and the employer, separation pay is granted. In effect,
an illegally dismissed employee is entitled to either
reinstatement, if viable, or separation pay if
reinstatement is no longer viable, and backwages.

The normal consequences of respondents illegal

dismissal, then, are reinstatement without loss of
seniority rights, and payment of backwages computed
from the time compensation was withheld up to the
date of actual reinstatement. Where reinstatement is no
longer viable as an option, separation pay equivalent
to one (1) month salary for every year of service
should be awarded as an alternative. The payment of
separation pay is in addition to payment of
backwages.”

Since reinstatement is still viable, this Office is in view that

separation pay shall not be awarded to the complainant. However, the
complainant is entitled to the remedy of reinstatement. Thus, the
respondents shall REINSTATE the complainant to his job position
without loss of seniority rights.

Anent the third issue -

Following the reinstatement of the complainant, it is only proper that

he shall be entitled to backwages. According to the Labor Code of the
Philippines, an employee who was illegally terminated from work is entitled
to full backwages and reinstatement without loss of seniority rights and other
benefits. This is particularly provided under Article 279 of the said law, to
wit:

“ARTICLE 279. Security of tenure.-xxx 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
their monetary equivalent computed from the time his
 compensation was withheld from him up to the time of
his actual reinstatement.”

The Supreme Court also in the case of BANI RURAL BANK INC.
ENOC THEATER I AND II and/or RAFAEL DE GUZMAN vs TERESA
DE GUZMAN, EDGAR C. TAN and TERESA G. TAN held that:

“When reinstatement is ordered, the general

concept under Article 279 of the Labor Code, as
amended, computes the backwages from the time of
dismissal until the employee’s reinstatement. The
computation of backwages (and similar benefits
considered part of the backwages) can even continue
beyond the decision of the labor arbiter or NLRC and
ends only when the employee is actually reinstated.”

The complainant is also entitled to moral and exemplary damages,

rest day pay, holiday pay, and 13th month pay.

Moral damages are recoverable when the dismissal of an employee is

attended by bad faith or fraud or constitutes an act oppressive to labor, or is
done in a manner contrary to good morals, good customs or public policy.
Exemplary damages, on the other hand, are recoverable when the dismissal
was done in a wanton, oppressive, or malevolent manner. Since the
complainant was illegally dismissed, he shall be entitled to moral and
exemplary damages.

The claim for rest day pay, holiday pay, and 13 th month pay of the
complainant shall be denied for lack of proof that it was unpaid. The
complainant did not present evidence to support that the respondents failed to
pay his rest day pay, holiday pay and 13th month pay.

WHEREFORE, premises considered, judgment is hereby rendered,

finding the respondents illegally dismissed the complainant, and ordering the
respondent to reinstate the complainant with backwages. Respondents are
also hereby ordered to pay moral and exemplary damages and attorney’s fees
to the complainant.

SO ORDERED.

San Fernando, Pampanga.

CHRISTOPHER JOHN PEREZ

Labor Arbiter