Title Airborne Maintenance and Allied Services, Inc. v.
Egos
Citation GR NO 222748
Topic When Employment not Deemed Terminated
Notice to DOLE is necessary
Doctrine
Facts Respondent Arnulfo M. Egos was hired by Petitioners Airborne Maintenance and
Allied Services, Inc. on April 9, 1992, as a janitor and was assigned to the Balintawak
Branch of Meralco, a client of Airborne.
Almost 20 years later, on June 30, 2011, the contract between Airborne and Meralco
expired, and Landbees Corporation took over, absorbing all employees except for
Egos due to his alleged heart ailment.
Respondent Egos obtained a medical certificate declaring him fit for work, but
petitioner Airborne disregarded this and failed to provide him with a new
assignment.
Feeling constructively and illegally dismissed, Respondent Egos filed a complaint on
August 5, 2011. Petitioner Airborne countered that it never dismissed Egos and had
directed him to report for a new assignment, which Egos failed to do. It even sent
two letters on a different at private respondent's last known address directing him to
report to his new assignment at Meralco Commonwealth Business Center, however
said letters were returned to sender
The LA dismissed the complaint for illegal/constructive dismissal for lack of merit
On appeal, the NLRC rendered a decision reversing the findings of the Labor Arbiter
and declaring private respondent to have been constructively/illegally dismissed.
The CA affirmed the ruling of the NLRC. Hence this petition
Issue Whether or not respondent was illegally dismissed
Ruling Yes
In cases of termination of employees, the well-entrenched policy is that no worker
shall be dismissed except for just or authorized cause provided by law and after due
process. Dismissals of employees have two facets:
Two facets of dismissal
first, the legality of the act of dismissal, which constitutes substantive due process;
and
second, the legality in the manner of dismissal, which constitutes procedural due
process.
Twin requisites not observed Clearly, the failure to observe the twin requisites of notice and hearing not only
makes the dismissal of an employee illegal regardless of his alleged violation, but is
also violative of the employee's right to due process.
In this case, it is beyond cavil that none of the foregoing mandatory provisions of the
labor law were complied with by Airborne.
no iota of evidence was presented by Airborne sufficiently showing that the
letters/notices dated August 12, 2011 and dated September 21, 2011 were actually
received by xxx respondent.
In fact, said letters/notices were returned with a notation "RTS unknown" inasmuch
as x x x respondent's address was incomplete and such was intentionally done for
the latter not to receive said letters/notices.
As correctly observed by public respondent NLRC, the letters/notices were mere
afterthoughts since Airborne was already aware of the filing of the illegal dismissal
complaint prior to the sending of the said letters/notices.
Corollary thereto, it must be stressed that xxx respondent made several follow-ups
since July 1, 2011, but Airborne did not give him a new assignment. Moreover, xxx
respondent gave his cellphone number with Christine Solis, Airborne's
Administrative Officer, but to no avail.
We find credence on his allegation that respondents denied him employment
because he had a heart ailment. Nonetheless, despite the declaration that he was fit
to work, the respondents still did not give him any assignment.
The complainant is a mere janitor, and to earn a living, he had to undergo the
medical examination. He exerted effort and spent money to prove to respondents
that he was capable of working.
To give semblance of legality to their act of not giving him an assignment, after the
filing of the complaint for constructive dismissal, respondents sent him two (2)
letters with incomplete address. The sending of the letters were a mere
afterthoughts (sic).
Afterthought cannot be given The Supreme Court, in Skippers United Pacific, Inc. vs. NLRC G.R. No. 148893, July
weight 12, 2006 ruled that "Afterthought cannot be given weight or credibility."
When employment not deemed ART. 301 [286]. When Employment Not Deemed Terminated. — The bona fide
terminated suspension of the operation of a business or undertaking for a period not exceeding
six (6) months, or the fulfilment (sic) 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.
The Court finds that petitioner failed to prove that the termination of the contract
with Meralco resulted in a bona fide suspension of its business operations so as to
validly place respondent in a floating status.
Suspension should not exceed The suspension of employment under Article 301 of the Labor Code is only
six months temporary and should not exceed six months
Article 286 [now Article 301] may be applied but only by analogy to set a specific
period that employees may remain temporarily laid-off or in floating status. Six
months is the period set by law that the operation of a business or undertaking may
be suspended thereby suspending the employment of the employees concerned.
The temporary lay-off wherein the employees likewise cease to work should also not
last longer than six months. After six months, the employees should either be
recalled to work or permanently retrenched following the requirements of the law,
and that failing to comply with this would be tantamount to dismissing the
employees and the employer would thus be liable for such dismissal
Notice to DOLE is necessary In implementing this measure, jurisprudence has set that the employer should notify
the Department of Labor and Employment (DOLE) and the affected employee, at
least one month prior to the intended date of suspension of business operations.
[15]
An employer must also prove the existence of a clear and compelling economic
reason for the temporary shutdown of its business or undertaking and that there
were no available posts to which the affected employee could be assigned.
employer should prove that it is The Court explained in Lopez v. Irvine Construction Corp.
faced with a clear and
compelling economic reason In invoicing Article 286 of the Labor Code, the paramount consideration should be
which reasonably forces it to the dire exigency of the business of the employer that compels it to put some of its
temporarily shut down employees temporarily out of work.
This means that the employer should be able to prove that it is faced with a clear
and compelling economic reason which reasonably forces it to temporarily shut
down its business operations or a particular undertaking, incidentally resulting to the
temporary lay-off of its employees.
Due to the grim economic consequences to the employee, case law states that
the employer should also bear the burden of proving that there are no posts
available to which the employee temporarily out of work can be assigned. Thus, in
the case of Mobile Protective & Detective Agency v. Ompad, the Court found that the
security guards therein were constructively dismissed considering that their
employer was not able to show any dire exigency justifying the latter's failure to give
said employees any further assignment
Here, a review of the submissions of the parties shows that petitioner failed to show
compliance with the notice requirement to the DOLE and respondent.
Constructive dismissal In Morales v. Harbour Centre Port Terminal, Inc.,[18] the Court defined constructive
dismissal as a dismissal in disguise as it is an act amounting to dismissal but made to
appear as if it were not, thus:
Continued employment is Constructive dismissal exists where there is cessation of work because "continued
impossible 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
employmen
Here, the totality of the foregoing circumstances shows that petitioner's acts of not
informing respondent and the DOLE of the suspension of its operations, failing to
prove the bona fide suspension of its business or undertaking, ignoring respondent's
follow-ups on a new assignment, and belated sending of letters/notices which were
returned to it, were done to make it appear as if respondent had not been
dismissed. These acts, however, clearly amounted to a dismissal, for which
petitioner is liable.
