G.R. NO.

159293, December 16, 2005

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.
DECISION

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

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

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,

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

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

TotalP178,834.56.

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:

I. 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,

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

(OWWA).

II. 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

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

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.

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

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 façade 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

6
G.R. NO. 159293, December 16, 2005

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

7
G.R. NO. 159293, December 16, 2005

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.

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

[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.

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

[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.

10