LIGHTNING TRUCKING SERVICE AND ARNEL TESORERO, PETITIONERS, VS. NATIONAL LABOR RELATIONS COMMISSION, DANILO P. SULIT, RODRIGO P. GANOB, MARIO G. VILLARIN, RITO M. ADRAN AND ROME…
BALTAZAR-PADILLA, J.:
Petitioner corporation Lightning Trucking Services, Inc. is a domestic corporation duly organized and existing under Philippine laws while co-petitioner Arnel V. Tesosero (Tesosero) is petitioner company’s President. They shall be collectively referred to as petitioners. Respondents were formerly working as truck drivers of petitioner corporation. Public respondent NLRC is impleaded as a nominal party for issuing the herein impugned Decision and Resolution.
The present controversy traces its roots to the Complaint for illegal dismissal with payment of money claims, illegal deduction, separation pay, moral and exemplary damages and attorney’s fees filed by respondents against petitioners.
In their Position Paper[3], respondents allege that they were hired by petitioners as regular drivers on different dates, to wit: Sulit – May 19, 2006; Sotillo – November 27, 2006; Ganob, Jr. – February 1, 2007; and Adran – May 28, 2008. They were merely paid on a per trip basis even though they are reporting daily for work. The trucks they were driving are “colorum” and they were made to pay for the fines for any traffic violations. They also paid the penalty of P1,200 for every damaged box. They were usually given P1,000 after every three successful deliveries as allowance for the trucks’ maintenance and payment of the toll fees.
On November 15, 2011, respondents were purportedly illegally dismissed by petitioners because they sought the help of Mr. Raffy Tulfo for the latter’s failure to give them the proper amount of salaries and benefits. They were advised to file the instant complaint before the Department of Labor and Employment (DOLE), National Capital Region (NCR). They maintained that petitioners failed to observe substantive and procedural due process. Since their dismissal was not based on any of the causes recognized by law, and the same was implemented without notice, they are entitled to separation pay, full backwages and other benefits.
Petitioners countered that they did not regularly engage the services of respondents. Petitioners asserted that respondents did not sign employment contracts with them, hence, there was no employer-employee relationship between them. Respondents were hired by petitioners as truck drivers on a per trip basis at the rate of Three Hundred Fifty Pesos (350.00) to Three Thousand Five Hundred Pesos (P3,500.00). Their assigned travel route starts at Carmona, Cavite to any point in Luzon or Visayas. Respondents’ services were supposedly only engaged when there would be deliveries to be done. They were issued their pay slips showing the corresponding payments they received for the days that they had worked. They were provided with identification cards solely to be used as gate passes and for them to be easily identified by petitioners’ clients when they make their deliveries. They can work for other employers when their services are not engaged by petitioners. As a company policy, respondents were given reserved funds to be used as payment for toll fees, wrecker charges and other charges during emergencies. It was their agreement that respondents shall shoulder all the damages that may be incurred during their deliveries.[4]
Sometime in November 2011, petitioners ordered respondents to make certain deliveries but the latter disregarded such directive. Respondents did not report for work from then on. They clearly abandoned their work, hence, they are not entitled to backwages and other benefits. Petitioners, therefore, were forced to hire other drivers. Petitioners were later surprised when they learned that respondents already instituted the extant complaint before the DOLE, NCR. Respondents evidently acted in bad faith when they lodged the present complaint which compelled petitioners to engage the services of a counsel to defend and protect their rights.[5]
After the parties had filed their respective pleadings, the Labor Arbiter rendered the Decision dated August 17, 2012, finding petitioners guilty of illegal dismissal. The Labor Arbiter held that respondents performed their tasks as per the instructions of petitioners. They were expected to carry out their assigned duties based on the guidelines provided by petitioners. Under the control test, there is an employer-employee relationship when the person for whom the services are performed reserves the right to control not only the end achieved but also the manner and means used to achieve that end. Accordingly, petitioners were ordered to pay respondents their full backwages and separation pay. The dispositive portion of the said Decision states:
“WHEREFORE, premises considered, decision is hereby rendered declaring complainant’s dismissal to be illegal. Respondents LIGHTNING TRUCKING SERVICE and/or ARNEL TESORERO are hereby ordered to pay complainants separation pay and full backwages as follows:
Backwages Separation Pay Total
DANILO P. SULIT RODRIGO P. GANOB RITO M. ADRAN ROMEO D. SOTILLO TOTAL the detailed computation of which is found in the attached Report submitted by the Computation and Examination Unit of this Branch which is considered as part of this decision.
In addition, respondents are ordered to pay complainants attorney’s fees equivalent to ten (10%) of the total judgment award or 62,312.90.
Complainants’ money claims are denied for lack of basis.
SO ORDERED.”
On appeal, the NLRC dismissed petitioners’ appeal and partially affirmed the Decision of the Labor Arbiter. The NLRC decreed in this wise:
“WHEREFORE, premises considered, the appeal is DISMISSED for lack of merit. The decision dated August 14, 2012, finding complainants’ dismissal illegal and directing respondents appellants to pay separation pay and full backwages is AFFIRMED.
SO ORDERED.”
Petitioners sought reconsideration of the above-quoted Decision of the NLRC but the same was denied in a Resolution dated April 29, 2013.
Hence, petitioners are before US via the instant petition raising the following grounds in support thereof, to wit:
I
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION IN FINDING THAT THERE IS NO IMPROPER VENUE.II
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION AND IS IN EXCESS OF ITS JURISDICTION WHEN IT FOUND THAT THERE WAS AN EMPLOYER-EMPLOYEE RELATIONSHIP AND THAT PRIVATE RESPONDENTS WERE ILLEGALLY DISMISSED WITHOUT ANY SUBSTANTIAL EVIDENCE TO SUPPORT THE SAME.III
THE PUBLIC RESPONDENT GRAVELY ABUSED ITS DISCRETION AND IS IN EXCESS OF ITS JURISDICTION WHEN IT INCLUDED THE INDIVIDUAL RESPONDENT AS LIABLE FOR THE MONETARY AWARD OF THE PRIVATE RESPONDENTS.
Petitioners contend that there being no written agreement between the parties to change or transfer the venue to NCR Arbitration Branch, the jurisdiction of the extant complaint lies with the Arbitration Branch of Region IV since the respondents’ workplace is situated at Carmona, Cavite. The 2011 NLRC Rules of Procedure provides that for purposes of venue, the workplace shall be understood as the place or locality where the employee is regularly assigned at the time the cause of action arose. Accordingly, the extant case filed in the NCR Arbitration Branch must necessarily be dismissed for improper venue.[6]
Petitioners further assert that there was no substantial evidence to prove that an employer-employee relationship existed between them and respondents. The burden of evidence lies with respondents since they were the ones asserting an affirmative allegation that there exists an employer-employee relationship. Moreover, respondents are not regular employees of petitioner for the following reasons: (1) they were only on-call drivers as they would be given their respective dates of work merely on calls or notices of petitioners; and (2) they can only use petitioners’ garage whenever they were called for work. Aside from their self-serving allegations, respondents did not present substantial evidence to prove that they were prevented from returning to their work. Absent any showing of an overt or positive act proving that petitioners had dismissed respondents, the latter’s claim of dismissal cannot be sustained.[7]
Petitioners asseverate that the liability of individual petitioner to respondents has no valid and legal bases sans any finding by the respondent Commission that he willfully and knowingly agreed to patently unlawful acts of petitioner company. The individual petitioner did not show malice, fraud or bad faith in the alleged illegal dismissal of respondents. Respondents failed to prove that their dismissal was orchestrated by the individual petitioner, hence, the latter should not be held solidarily liable with the petitioner corporation.[8]
Respondents failed to file their Comment and Memoranda.[9]
The petition is partly meritorious.
Preliminarily, WE shall resolve the procedural issue raised by petitioners that the venue of the extant case was improperly laid.
Section 1 (a), Rule IV of the 2011 NLRC Rules of Procedure, as amended, provides:
“SECTION 1. Venue. – (a) All cases which Labor Arbiters have authority to hear and decide may be filed in the Regional Arbitration Branch having jurisdiction over the workplace of the complainant/petitioner.
For purposes of venue, workplace shall be understood as the place or locality where the employee is regularly assigned when the cause of action arose. It shall include the place where the employee is supposed to report back after a temporary detail, assignment or travel. In the case of field employees, as well as ambulant or itinerant workers, their workplace is where they are regularly assigned, or where they are supposed to regularly receive their salaries/wages or work instructions from and report the results of their assignment to, their employers.” (emphasis supplied)
In Philtranco Service Enterprises, Inc. vs. NLRC et al.,[10] the above-cited provision was already declared by the Supreme Court as merely permissive. The said provision uses the word “may” allowing a different venue when the interests of substantial justice demand a different one. In any case, the Constitutional protection accorded to labor is a paramount and compelling factor, provided the venue chosen is not altogether oppressive to the employer. Furthermore, the same provision states that “for purposes of venue, workplace shall be understood as the place or locality where the employee is regularly assigned when the cause of action arose”. Since respondents’ regular route is from Carmona, Cavite to any place in Luzon or Visayas, WE hold that the filing of the present case before the NCR Arbitration Branch was proper since NCR could be considered as part of respondents’ territorial workplace. Respondent NLRC, therefore, committed no grave abuse of discretion in allowing this case to be heard by the NCR Arbitration Branch. In Sulpicio Lines, Inc. vs. NLRC,[11] the High Court discoursed that the courts will not hesitate to set aside the rules on venue if the same would promote the ends of justice, thus:
“The question of venue essentially relates to the trial and touches more upon the convenience of the parties, rather than upon the substance and merits of the case. Our permissive rules underlying provisions on venue are intended to assure convenience for the plaintiff and his witnesses and to promote the ends of justice. This axiom all the more finds applicability in cases involving labor and management because of the principle, paramount in our jurisdiction, that the State shall afford full protection to labor.”
Anent the second ground, petitioners aver that the Commission a quo committed grave abuse of discretion when it affirmed the Labor Arbiter’s finding that there exists an employer-employee relationship between them and respondents. This determination has been rendered imperative by the petitioners’ denial of the existence of employer-employee relationship on the reasoning that they only called on the respondents when needed.
The elements to determine the existence of an employment relationship are: (1) the selection and engagement of the employee; (2) the payment of wages; (3) the power of dismissal; and (4) the employer’s power to control the employee’s conduct. The most important element is the employer’s control of the employee’s conduct, not only as to the result of the work to be done, but also as to the means and methods to accomplish it.[12] All these elements are present in this case.
First, petitioners were the ones who selected and engaged the services of respondents on various dates. Sulit was hired on May 19, 2006; Sotillo on November 27, 2006; Ganob, Jr. on February 1, 2007; and Adran on May 28, 2008. Petitioners categorically confirmed in their pleadings that they hired respondents as drivers to make deliveries from their workplace at Carmona, Cavite to any point in Luzon or Visayas. Second, petitioners paid respondents their salaries on a per trip basis at the rate of Three Hundred Fifty Pesos (350.00) to Three Thousand Five Hundred Pesos (P3,500.00). Jurisprudence holds that the payment to a worker on a per trip basis is not significant because this is merely a method of computing compensation and not a basis for determining the existence of employer-employee relationship.[13] Third, petitioners’ power to dismiss respondents was inherent in the fact that they engaged the services of respondents as drivers and had the power to determine when and where the deliveries of respondents would be made which obviously implies power of control. As a matter of fact, in their “Pinagsama-Samang Sinumpaang Salaysay,[14]” respondents declared that they were obliged to pay the fines for the traffick violations that may be committed in the course of their deliveries and they were also required to reimburse the amount of P1,200.00 for every damaged box or cargo. This necessarily implies that petitioners regulated respondents’ jobs that they could dismiss them if they fail to perform their assigned tasks and to comply with company’s regulations. Fourth, respondents performed their work as drivers under the petitioners’ supervision and control. Petitioners set the day and time when and the route where respondents would make their deliveries. Petitioners also determined the amounts of respondents’ salaries which were indicated on the pay slips[15] given to them on a weekly basis depending on their assigned routes. Respondents were also issued identification cards.[16]
Moreover, WE are of the view that respondents’ services are necessary or desirable to the usual trade or business of petitioners. The repeated and continuing need for their services is sufficient evidence of the necessity, if not indispensability, of their services to petitioners’ trucking business. Article 286[17] of the Labor Code states that “the provisions of written agreement to the contrary notwithstanding and regardless of the oral agreement of the parties, an employment shall be deemed to be regular where the employee has been engaged to perform activities which are usually necessary or desirable in the usual business or trade of the employer x x x”.
Simply put, WE find respondents to be regular employees of petitioners who may be removed from work only on valid grounds as defined under the law. Thus, WE agree with the Labor Arbiter’s ruling on these matters which was affirmed by the Commission a quo, thus:
“The pay slips presented to the records by the complainants (respondents herein) show that they rendered services for the respondents (petitioners herein) regularly for which they derived salaries paid to them on a weekly basis[,] the rate of which depends on the assigned routes they traveled. These documents belie respondents’ allegations that complainants did not perform their tasks regularly and were merely “on-call drivers” who were summoned to transport respondents’ merchandise when there are deliveries to be done.
X x x x
Complainants were issued identification cards which are not merely for the purpose of being used as gate pass to identify complainants that they came from the respondent company. These identification cards, to the mind of this Office, were issued to identify complainants as bona fide employees of the respondent company.”
Petitioners assert that even granting that there was an employer-employee relationship between them and respondents, still, there was no illegal dismissal since respondents abandoned their jobs.
Article 288[18] of the Labor Code enumerates the just causes for terminating the services of an employee:
“ART. 288. Termination by employer. – An employer may terminate an employment for any of the following causes:
(a) Serious misconduct or willful disobedience by the employee of the lawful orders of his employer or representative in connection with his work;
(b) Gross and habitual neglect by the employee of his duties;
(c) Fraud or willful breach by the employee of the trust reposed in him by his employer or his duly authorized representative;
(d) Commission of a crime or offense by the employee against the person of his employer or any immediate member of his family or his duly authorized representative; and
(e) Other causes analogous to the foregoing.” (emphasis supplied)
Abandonment of work, or the deliberate and unjustified refusal of an employee to resume his employment, is a just cause for the termination of employment under paragraph (b) of the above-quoted Article 288 of the Labor Code, since it constitutes neglect of duty. To constitute abandonment, two elements must concur: (1) the failure to report for work or absence without valid or justifiable reason, and (2) a clear intent, manifested through overt acts, to sever the employer-employee relationship. The employer bears the burden of showing a deliberate and unjustified refusal by the employee to resume his employment without any intention of returning.[19]
Here, petitioners failed to adduce any evidence to prove that respondents clearly and unequivocally intended to abandon their jobs or to sever the employer-employee relationship. Apart from petitioners’ plain allegations that respondents abandoned their jobs, there is no evidence on record to prove the veracity of such claim. A litany of cases has consistently held that substantial evidence is all that is needed to support an administrative finding of fact. It means such relevant evidence as a reasonable mind might accept to support a conclusion.[20] It is more likely that after respondents complained about their low salaries, they were no longer allowed to report for work. They were dismissed without cause and without the requisite written notices. In fact, respondents even presented their case before the Labor Arbiter seeking for reinstatement which was a strong indication of their intention to resume work. Settled is the rule that 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.[21]
Now, WE proceed to rule whether respondents were accorded procedural due process.
To meet the requirements of due process in the dismissal of an employee, an employer must furnish the worker with two written notices: (1) a written notice specifying the grounds for termination and giving to said employee a reasonable opportunity to explain his side and (2) another written notice indicating that, upon due consideration of all circumstances, grounds have been established to justify the employer’s decision to dismiss the employee.[22]
Here, petitioners clearly failed to comply with the two-notice requirement. Nothing in the records shows that petitioners ever sent respondents a written notice informing them of the ground for which their dismissal was sought. It does not also appear that petitioners conducted a hearing where respondents were given the opportunity to answer the charge of abandonment. Neither did petitioners send a written notice to respondents informing the latter that their services had been terminated and the reasons for the termination of employment. Under these circumstances, WE rule that respondents’ dismissal was illegal.
Respondents’ illegal dismissal carries the legal consequence defined under Article 285[23] of the Labor Code which provides:
“Art. 285. 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 their monetary equivalent computed from the time his compensation was withheld from him up to the time of his actual reinstatement.”
Separation pay may be awarded to an illegally dismissed employee in lieu of reinstatement when continued employment is no longer possible where, as in this case, the continued relationship between the employer and the employee is no longer viable due to strained relations between them and reinstatement appears no longer practical due to the length of time that had since passed. In awarding separation pay to an illegally dismissed employee, in lieu of reinstatement, the amount to be awarded shall be equivalent to one month salary for every year of service reckoned from the first day of employment until the finality of the decision. Payment of separation pay is in addition to payment of backwages. And if separation pay is awarded instead of reinstatement, backwages shall be computed from the time of illegal termination up to the finality of the decision.[24]
Finally, petitioners allege that the individual petitioner did not act in bad faith with regard to the manner by which respondents were dismissed and thus, he should not be held liable together with petitioner corporation.
WE are convinced that there is no evidence to support that individual petitioner, in his capacity as petitioner corporation’s President, acted in bad faith or was motivated by ill will in terminating respondents’ services. It is worth stressing at this point that bad faith cannot be presumed.[25] Hence, WE hold that the NLRC gravely abused its discretion when it ordered individual petitioner to be solidarily liable with petitioner corporation.
Except for the afore-stated error, WE rule that the NLRC did not commit grave abuse of discretion when it denied petitioners’ appeal and affirmed the Labor Arbiter’s finding of illegal dismissal and award of backwages and separation pay to respondents.
WHEREFORE, the foregoing considered, the impugned Decision and Resolution of the respondent Commission are AFFIRMED with the MODIFICATION that petitioner corporation is solely liable for the payment of the monetary awards in favor of private respondents.
SO ORDERED.
Abdulwahid H. S., Chairperson, and Inting S. B., JJ., concur.
[1] Rollo at 20-29.
[2] Rollo at 30-31.
[3] Rollo at 40-52.
[4] Rollo at 140-149.
[5] Ibid.
[6] Rollo at 8-9. Petition.
[7] Rollo at 9-12. Petition.
[8] Rollo at 12-13. Petition.
[9] Rollo at 217 and 242.
[10] G.R. No. 124100, April 01, 1998.
[11] G.R. No. 117650, March 7, 1996, 254 SCRA 506.
[12] Cesar Lirio vs. Wilmer Genovia, G.R. No. 169757, November 23, 2011.
[13] Bitoy Javier vs. Fly Ace Corporation, G.R. No. 192558, February 15, 2012.
[14] Rollo at 53-54.
[15] Rollo at 56-138.
[16] Rollo at 55.
[17] Formerly Article 280 of the Labor Code.
[18] Formerly Article 282 of the Labor Code.
[19] CRC Agricultural Trading et al. vs. NLRC et al., G.R. No. 177664, December 23, 2009.
[20] Energy Regulatory Board vs. Court of Appeals et al., G.R. No. 113079. April 20, 2001.
[21] C. Planas Commercial and Marcial Cohu vs. NLRC et al., G.R. No. 121696, February 11, 1999.
[22] Dolores Esguerra vs. Valle Verde Country Club, Inc. et al., G.R. No. 173012, June 13, 2012.
[23] Formerly Article 279 of the Labor Code.
[24] See Agricultural and Industrial Supplies Corporation et al. vs. Jueber Siazar et al., G.R. No. 177970, August 25, 2010.
[25] Spouses Vilbar vs. Angelito Opinion, G.R. No. 176043, January 15, 2014.