MARY JOY LOPEZ VICTORIANO, PETITIONER, VS. THE HON. COMMISSIONERS OF THE NATIONAL LABOR RELATIONS COMMISSION, SEVENTH DIVISION, CEBU CITY AND ATLAS DIVE RESORT, ANDY POPE, GEORG…
LAGURA-YAP, J.:
The antecedent facts:
Petitioner Mary Joy L. Victoriano (petitioner) was hired by private respondent Atlantis Dive Resort (Atlantis Dive Resort) on June 3, 2005 as a massage therapist. She had a starting monthly salary of seven thousand pesos (PhP 7,000) which was subsequently increased to ten thousand pesos (PhP 10,000). She worked from two o’clock in the afternoon until eleven o’clock in the evening every day[4].
Petitioner and private respondents have different versions of the facts and circumstances surrounding the events which led to the former’s (Victoriano) severance from her employment with Atlas Dive Resort. Both sides will be told narrated as hereunder:
Petitioner recalls that sometime in November of 2005, private respondent George Bender saw her use the resort’s telephone. Because of this she was charged one thousand pesos (PhP 1,000.00 pesos) which was deducted from her payroll. On July 3, 2006, she was accused of selling properties to a resort guest and was subsequently suspended for seven (7) days without pay from October 13 to 27, 2006. Again, on December 5, 2006, she was accused of violating the resort’s mission and vision statement and was suspended for fourteen (14) days without pay. In February 2007, she was fined an amount of one thousand pesos (PhP 1,000.00) for assisting a guest in going to the grocery, although, according to her, it was done after her working hours. Petitioner asserts that in all these instances, she was not given due process[5].
Petitioner alleges that the management of private respondent Atlas Dive Resort decided to change her employment status from regular employee to commission-based employee sometime in July 2007. She was told to go home and that she would just be called back should her services be needed. However, after November 4, 2007, no such call was ever made. She was made to sign a pre-formatted resignation letter which she refused to submit[6].
Private respondents on the other hand, contend that complainant resigned from her job sometime in August 2007 and that she submitted her resignation letter. However, they said that the resignation letter could no longer be presented because the former Human Resource Manager of the Resort, Ms. Taryn Teves, failed to completely turn over all documents which were in her possession when she resigned sometime in March 2009. To prove her resignation, private respondents presented the affidavits of George Benderland and Briget, Anabel Metro and Herdita Barandog. With Victoriano’s resignation, she has no cause of action against the private respondents. Private respondents were surprised to know that Victoriano filed an illegal dismissal case against them after almost three (3) years since her resignation.
It could not be possible that private respondents would simply terminate the complainant in the manner described in her pleadings. She had a balance of sixteen thousand and two hundred fifty pesos (Php 16,250.00) from her loan of twenty thousand pesos (Php 20,000.00) which she obtained from the Atlantis Foundation, a foundation created by the Resort for the benefit of its qualified employees. The existence of Victoriano’s loan runs counter to her theory that she was illegally dismissed.
Granting without conceding that complainant was indeed dismissed from her job, private respondents argue that there were just causes for her termination as she was involved in various infractions committed against the company. She was guilty of neglect of duty and wilful disobedience to the lawful orders of the respondents. She engaged herself into selling real estate to some guests which was expressly prohibited and thus warranting her dismissal. Should that be the case, private respondents concede that they would only be liable for nominal damages and not for back wages and complainant’s other money claims[7].
On December 23, 2009, petitioner Victoriano filed a complaint for illegal dismissal, illegal suspension, illegal deduction, non-payment of overtime pay, premium pay for rest day and night shift pay and separation pay against private respondents before the National Labor Relations Commission, Sub-Regional Arbitration Branch No. VII, Dumaguete City. On December 20, 2010, Labor Arbiter Leo Montenegro rendered a decision declaring that petitioner Victoriano was illegally dismissed, upon which private respondents were ordered to pay five hundred thirty one thousand three hundred eighty three pesos (PhP 531,383.00).
Private respondents received a copy of the decision on January 18, 2011 through their previous counsel. However, as the records would show, they filed their appeal through LBC, a private courier, which was received by NLRC Sub-RAB VII of Dumaguete City only on January 31, 2011[8]. The NLRC subsequently issued a Resolution dated May 31, 2011 dismissing the appeal for being filed out of time.
Upon receipt of the copy of the Resolution on July 8, 2011, private respondents filed a Motion for Reconsideration before the NLRC on July 18, 2011, which was granted in the assailed Decision dated August 26, 2011[9].The NLRC partially granted the appeal and modified the decision of the Labor Arbiter with respect to the 13th month pay in the amount of twenty thousand pesos (PhP 20,000.00) that private respondents are liable for. The NLRC set aside and vacated the rest of the Decision of the Labor Arbiter.
Aggrieved, petitioner filed a Motion for Reconsideration of the NLRC Decision, but this was denied on November 29, 2011[10].
The case is now brought before Us via this Petition for Certiorari.
THE ISSUES
Petitioner raises the following assignment of errors:
1. Public respondent gravely abused its discretion amounting to lack or excess of jurisdiction when it granted the Motion for Reconsideration of private respondents by considering them to have perfected their appeal.
2. Public respondent gravely abused its discretion amounting to lack or excess of jurisdiction when it conducted trial de novo on appeal and shifted the burden of proof of illegal dismissal to the petitioner.
At the outset, it must be emphasized that decisions of the NLRC are deemed final and executory, thus, not subject to ordinary appeal. The remedy of the aggrieved party therefore is to file a Petition for Certiorari under Rule 65 of the 1997 Rules of Civil Procedure pursuant to the landmark case of St. Martin Funeral Home v. NLRC.[11] Verily, the instant petition is the proper recourse.
Grave abuse of discretion defies exact definition, but it generally refers to capricious or whimsical exercise of judgment as is equivalent to lack of jurisdiction. The abuse of discretion must be patent and gross as to amount to an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reason of passion and hostility[12].
On this score, We find and so hold that public respondent gravely abused its discretion when it granted the Motion for Reconsideration of Atlas Dive Resort of the Resolution[13] dated May 31, 2011. The Resolution denied the latter’s appeal for being filed out of time. The Notice of Appeal with Memorandum of Appeal of the Labor Arbiter’s Decision of private respondents was filed beyond the reglementary period. Thus, public respondent should not have granted the assailed Motion for Reconsideration.
We quote the findings of fact stated in public respondent’s Resolution dated May 31, 2011, viz:
“In the instant case, respondents admitted that they have received a copy of the decision on 18 January, 2011, through their previous counsel; hence, they have until 28 January, 2011, the tenth day, within which to file their appeal. However, it appears from the records that NLRC Sub-RAB VII Dumaguete City (Sub-RAB VII) received their appeal on 31 January, 2011. Records would likewise bear that they filed their appeal through LBC, a private letter courier. Since there is no showing when respondents did actually consign their notice of appeal through LBC, it is safe to presume then that it was made on 28 January 2011, taking into account as well their letter bearing the same date addressed to the officer-in-charge of Sub-RAB VII.” (Citation omitted; Emphasis supplied)
January 28, 2011, which was the last day to appeal, fell on a Friday. Private respondents ought to have filed the Notice of Appeal with Memorandum of Appeal on that day. They however, chose the riskier mode of filing the Notice of Appeal through LBC, a private courier. The Notice of Appeal with Memorandum of Appeal was already filed out of time because the NLRC received it only on January 31, 2011, or the following Monday. Private respondents should be bound by the well-settled rule set forth in the case of Benguet Electric Cooperative, Inc. v. NLRC[14]:
“The established rule is that the date of delivery of pleadings to a private letter-forwarding agency is not to be considered as the date of filing thereof in court, and that in such cases, the date of actual receipt by the court, and not the date of delivery to the private carrier, is deemed the date of filing of that pleading.” (Underscoring supplied)
Even more revealing is the fact that in the assailed Decision[15] dated August 26, 2011, public respondent acknowledged that the records would not indicate that private respondents filed their appeal on time. The pertinent portion of the Decision is also quoted hereunder for emphasis:
“After considering the foregoing explanations advanced by the respondents, we resolve to consider our stand. But the same is not premised on our misappreciation of facts because nothing in the record would then show that respondents also filed their appeal on time through registered mail. However, with good faith shown as illustrated in the submission of the photocopy of the first page of their Notice of Appeal with Memorandum of Appeal, we ought to reassess our findings. Accordingly, respondents are now considered to have perfected their appeal.” (Emphasis supplied)
It is correct. There is nothing in the record that would prove that the appeal was filed on time. On this point alone, public respondent should have denied the assailed Motion for Reconsideration, but the public respondent proceeded to grant it, citing good faith on the part of Atlas Dive Resort. Good faith though is not a suitable ground to excuse an appeal filed out of time. It was rather capricious for public respondent to conclude that private respondents have perfected their appeal when the record does not disclose a timely appeal.
In sum, We find that public respondent committed grave abuse of discretion amounting to lack or excess of jurisdiction when in its assailed Decision, it granted private respondents’ Motion for Reconsideration and partially granted the Notice of Appeal with Memorandum of Appeal which was filed out of time. The rules on appeal should be strictly complied with, lest there would be no end to litigation. It is a long-settled doctrine that the perfection of an appeal in the manner and within the period permitted by law is not only mandatory but also jurisdictional[16]. The rule is also founded on deep-seated considerations of public policy and sound practice that, at risk of occasional error, the judgments and awards of courts must become final at some definite time fixed by law[17].
WHEREFORE, premises considered, the Petition is GRANTED. The Decision dated August 26, 2011 and Resolution dated November 29, 2011 issued by public respondent NLRC are hereby REVERSED and SET ASIDE. The Decision of the Labor Arbiter dated December 20, 2010 is hereby REINSTATED.
SO ORDERED.
Delos Santos, and Azcarraga-Jacob,* JJ., concur.
* Per Office Order No. 18-14-GTI dated July 7, 2014.
[1] ANNEX A, Rollo, p. 24.
[2] ANNEX B, Rollo, p. 35.
[3] ANNEX O, Rollo, p. 76.
[4] Decision of Labor Arbiter Montenegro, Rollo, p. 76.
[5] Rollo, p. 77.
[6] NLRC decision dated August 26, 2011, Rollo, p. 26.
[7] Id., p. 27.
[8] Resolution of the NLRC dated May 31, 2011; Rollo, p. 154.
[9] Rollo, p. 24.
[10] Resolution; Rollo, p. 35.
[11] G.R. No. 130866, September 16, 1998.
[12] People of the Philippines v. Tan, G.R. No. 167526, July 26, 2010, 625 SCRA 388, 397.
[13] See footnote 8.
[14] G.R. No. 89070, May 18, 1992.
[15] Promulgated August, 26, 2011; Rollo, p. 25.
[16] BPI Data Systems Corp. v. Hon. Court of Appeals and Commissioner of Internal Revenue, 324 Phil. 267 (1996).
[17] Borre v. Court of Appeals, No. L-57204, 14 March 1988, 158 SCRA 561.