RANDEL ROBILLO, RENAN GUDES AND RYAN RAY ONATE, PETITIONERS, VS. SYKES ASIA INC., AND CHUCK SYKES, RESPONDENTS.
LAGURA-YAP, J.:
Briefly, the facts of the case are as follows:
Petitioners Randel Robillo (Robillo), Renan Gudes (Gudes) and Ryan Onate (Onate) were hired as call center agents by Sykes Asia Inc., (private respondent) on October 2004, March 2008 and April 2008, respectively. They worked 8 hours per day, 5 days a week and were assigned at the Palm Account handled by private respondent. On August 3, 2010, petitioners filed a Complaint[4] for Illegal Dismissal, non-payment of 13th Month Pay, Service Incentive Leave, Separation Pay and Backwages before the Labor Arbiter. The case was docketed as RAB Case No. VII-08-1638-10. Several mandatory conferences were conducted but no settlement was reached. Accordingly, the parties were directed to submit their respective position papers.
In their Position Paper,[5] petitioner Robillo alleged that he was hired by private respondent as technical support representative in October of 2004 until his dismissal n February 2010. On February 25, 2010, petitioner was called and put on hold by his Senior Account Manager, Ms. Irene Elumba, and account managers, David de Madrazo and Al Ryan Santiago. He was told that a few agents, including him, will be transferred to another account or department.[6] At around 4 A.M. of the same day, he was informed that he will be transferred to the Loan Account Department. However, it turned out that out of twenty (20) agents in the list, only seven (7) agents, including petitioner Robillo, had their accounts cancelled. After the scheduled interview, Robillo was told that he would be called after an assessment of his performance and attendance is made.
On February 26, 2010, petitioner Robillo went to the Human Resource Office (HRO) and complained about his case, whereupon he was again told to wait for another call. Unfortunately, no such call was ever made, prompting petitioner Robillo to use up 8 days of his accumulated vacation leaves. A week later, Robillo received a phone call from the HRO telling him that he would no longer be transferred to another account because of issues regarding his attendance. On May 28, 2010, Robillo, together with co-petitioners Gudes and Onate, went back to work for proper assessment but they were told to go back to their old account. Upon checking the files in the company’s system, petitioners discovered that their individual records have been deleted.[7] Petitioners were forced to use their vacation leaves. Thereafter, they were placed on forced vacation leave without pay. On June 8, 2010, petitioners underwent another assessment and they were again told to wait for a phone call from their account manager, Al Ryan Santiago. Nonetheless, petitioners did not receive any call nor any information regarding their current status.[8]
As to petitioners Gudes and Onate, they received an email on May 24, 2010 from their senior account manager informing them that they will be having a focused group discussion on account downsizing, wherein some agents would be transferred to another account. On May 26, 2010, they were informed by account managers Madrazo and Santiago of their supposed transfer to another department effective May 31, 2010, after an assessment is conducted on them.[9]
On May 28, 2010, petitioners Gudes and Onate went to the Southeast Department for their scheduled assessment, but to their dismay, they were told by their account manager to go back to the Palm Department. On the same date, they discovered that their individual records have been deleted. On May 31, 2010, they reported back for work and per instruction, they proceeded to another department for an assessment but it did not push through as their papers were not yet reviewed by the HRO. Thereafter, they were forced to use their vacation leave and were ultimately placed on vacation leave without pay.[10]
In its Position Paper,[11] private respondents Sykes Asia Inc., and Chuck Sykes presented their own version of the facts. On October 18, 2004, they hired petitioner Robillo as a probationary technical support representative for its client account, the Palm Department. Robillo became a regular employee on April 15, 2005. On June 21, 2010, or at the time he was dismissed, Robillo was receiving a monthly salary of P16,721.46.
Like the rest of the employees, petitioner Robillo’s performance was constantly monitored and evaluated by the company to ensure that all its employees observe and adhere to the private respondent’s Code[12] and comply with the performance targets and metrics set by the clients of the company.
Based on his annual performance evaluations, Robillo obtained ratings which indicated areas that need improvement. In relation to his performance appraisal for the year 2009, Robillo violated provisions of the Code and was accordingly charged and served with several notices to explain such violations, especially with respect to the provision on absences and tardiness. In several written explanations[13] to the company, Robillo admitted his infractions and promised to be punctual or conform to the attendance policy in the future.
In February 2010, Robillo was re-profiled and transferred to another account due to the rightsizing implemented by the current client account.
By rightsizing, the current client account directs the Company to reduce the number of agents assigned to service its account to meet the client’s business demands, i.e., the number of agents assigned to the client account is deemed to be the right number of personnel who can efficiently service, support and handle the volume of calls from the client’s customers.[14]
In the case of complainant Robillo, he was included in the February 2010 rightsizing of the client account because of his low performance rating for the year 2009 and his issues on attendance and schedule adherence. Thereafter, Robillo was scheduled for an assessment by another client. He, however, failed in his assessment.[15] On March 17, 2010, Robillo was informed of his assessment results and was advised to get in touch with the account manager of his account for further instructions. Since February 25, 2010 and during the process of the assessment and re-profiling, Robillo was placed on leave. After using up his vacation leave with pay, he was temporarily placed on leave without pay. Upon deliberation, and despite his poor performance, the HRO and the account management of the client decided to take him back to his client account.[16] Private respondents contacted Robillo and informed him to go to his account manager for further instructions, but Robillo refused to heed the instruction. Finally, in a letter dated May 22, 2010, private respondents directed Robillo to report for work with a warning that his failure to comply with the said directive will constrain the company to consider him to have severed his employment. Despite the notice and several attempts to call him by phone, Robillo still failed to report back for work. Accordingly, on June 21, 2010, Robillo was effectively terminated.[17]
With respect to petitioners Gudes and Onate, private respondents maintained that they were not dismissed but were still due for re-profiling and assessment when they filed a complaint against the company.
Gudes was hired as a probationary technical support representative on November 19, 2007. On December 21, 2007, he was terminated due to his failure to meet the standards of performance required during the period of his probationary employment. However, he was rehired on January 28, 2008 as a TSR for another client account and was consequently regularized on July 14, 2008. At the time of the filing of the complaint, Gudes had a monthly salary of P13,500.00.[18]
Like Robillo, Gudes committed several infractions against the company, notably with respect to provisions regarding attendance and punctuality. Then, in May 2010, Gudes was re-profiled for transfer to other client accounts due to his low performance rating for the year 2009 and attendance issues. However, Gudes failed the assessment of the new account’s hiring standards. In the meantime, Gudes was temporarily placed on leave without pay while awaiting transfer to another account. In July 2010, private respondent contacted Gudes for another assessment but the latter refused. It was around this time when Gudes filed a complaint for illegal dismissal.[19]
Petitioner Onate, on the other hand, was hired as a probationary TSR on March 10, 2008 and became a regular employee on September 6, 2008. At the time of the filing of the complainant, he was paid a monthly salary of P13,500.00.
During the course of his employment, Onate was also served several notices[20] charging him with violations of the attendance and punctuality provision of the company’s Code. For the said infractions, Onate was either meted a penalty of written reprimand or suspension from work.
Like his co-petitioners, Onate was re-profiled and assessed for transfer to other client accounts. However, he failed in his first assessment. In the meantime, Onate was temporarily placed on leave without pay while waiting for further assessments. In July 2010, Onate was contacted by private respondent for language assessment but he did not heed. At the time of filing of the complaint, Onate was still due for re-profiling and further assessment.[21]
On April 18, 2011, the Labor Arbiter rendered a Decision[22] declaring petitioners to have been illegally dismissed, the dispositive portion whereof states:
“WHEREFORE, judgment is hereby rendered declaring that complainant Randel Robillo was not legally dismissed. We do not find complainant Robillo to have abandoned his work and liable to pay respondents of an over used sick leave/vacation leave in the amount of P11,480.37. Accordingly, respondent Sykes Asia, Inc./Chuck Sykes is directed to reinstate complainant to his former position without loss of seniority rights and privileges but without backwages.
Complainants Rey Ryan Onate and Renan Gudes are hereby declared to have been illegally dismissed. As such, respondent Sykes Asia, Inc./Chuck Sykes is directed to pay them the following:
Separation Pay Backwages Total Rey Ryan Onate
P27,000.00 P141,750.00 P168,750.00 Renan Gudes P27,000.00 P141,750.00 P168,750.00 Total: P337,500.00 Add: 10% Attorney’s Fees P33,750.00 Grand Total: P371,250.00 or the total amount of three hundred seventy one thousand two hundred fifty pesos (P371,250.00)
SO ORDERED.”
Dissatisfied, private respondents appealed[23] the Decision of the Labor Arbiter to the NLRC. In its February 29, 2010 Decision,[24] the NLRC reversed the findings of the Labor Arbiter, the dispositive portion whereof reads:
“WHEREFORE, premises considered, the decision of the Labor Arbiter is hereby REVERSED and SET ASIDE and a new decision entered:
- finding complainant Robillo to have been validly dismissed due to abandonment;
- finding complainants Onate and Gudes not to have been illegally dismissed and ordering the respondents to reinstate them to their former position without loss of seniority rights but without backwages.
SO ORDERED.”
Petitioners filed a Motion for Reconsideration[25] thereto but it was denied in the Resolution[26] dated April 30, 2012.
Aggrieved, Petitioners now come before Us raising the lone assignment of error:
“THE HONORABLE NATIONAL LABOR RELATIONS COMMISSION SEVENTH DIVISION COMMITED GRAVE ABUSE OF DISCRETION AND SERIOUS ERRORS IN DECLARING COMPLAINANT’S SITUATION AS AKIN TO A BONA FIDE SUSPENSION OF BUSINESS, THE LATTER BEING A NECESSARY REQUIREMENT FOR THEIR TRANSFER TO OTHER CLIENTS.”
In their four-page long petition,[27] petitioners argue that public respondent committed grave abuse of discretion and serious errors in declaring that their situation is akin to a bona fide suspension of business operations. First, private respondent failed to comply with the notice requirement to the DOLE. Article 283[28] of the Labor Code expressly provides that a written notice to the employee and the Ministry of Labor shall be given before the retrenchment. Second, private respondent’s contention that it was the petitioners who refused to be contacted for their assessment schedule raises a doubt on what actually transpired. And such doubt, according to petitioners, must be resolved in their favor.[29]
In their Comment[30] to the Petition, private respondents counter with the following arguments. First, the petition must be denied outright because petitioners failed to state their full names and actual addresses in the petition. Petitioners also failed to implead the NLRC as respondent in the case. Petitioners failed to furnish a copy of the petition to the Office of the Solicitor General. Furthermore, certiorari is confined to issues of want or excess of jurisdiction or grave abuse of discretion, it does not include an inquiry as to the correctness of the evaluation of evidence.[31]
Second, notwithstanding the foregoing infirmities, the petition still lacks merit as public respondent NLRC did not commit grave abuse of discretion in issuing the assailed Decision and Resolution. Public respondent correctly found that petitioners were not dismissed from their employment, and that consequently, they are not entitled to payment of separation pay and backwages.[32]
By signing their employment contracts, petitioners agreed to abide by all the company rules and policies during the course of their employment. Thus, they were sufficiently notified that their “continued satisfactory performance is expected, as evaluated under the annual Staff Performance Management System” of the Company.
OUR RULING
At the outset, We note that the instant petition is fraught with several defects which warrant its outright dismissal. We, however, took exception to this case and directed petitioners to cure the noted defects, per Our Resolution[33] dated March 1, 2013. Accordingly, petitioners filed a Compliance with Attached Competent Evidence of Identity and Serial Number of Commission Attorney thereto.[34] Nonetheless, and as correctly pointed out by private respondents, petitioners failed to implead the NLRC as public respondent. Petitioners likewise failed to indicate their full names and addresses in the petition and failed to furnish the OSG a copy of the petition, in violation of the pertinent rules and jurisprudence on the matter. Nonetheless, We will set aside technicalities of procedure and decide the case on the merits in the interest of substantial justice.[35]
Petitioners’ main argument is that public respondent erred in declaring their status as akin to a bona fide suspension of business operations under Article 286[36] of the Labor Code. Petitioners argue that the relevant provision is Article 283 of the same Code which deals with the closure of establishments and reduction of personnel. In view thereof, petitioners maintain that their dismissal was illegal since private respondents failed to comply with the notice requirement of the said provision.[37]
On the other hand, private respondents contend that Article 286 of the Labor Code applies. The provision is applied by analogy in order to set a specific period that employees may remain temporarily laid-off or in floating status, considering that there is no specific provision of law which treats of a temporary retrenchment or lay-off of an employee.[38]
After a thorough evaluation of the arguments and evidence presented by the parties, We resolve to deny the petition.
Under Article 283 of the Labor Code, an employer may terminate the employment of an employee due to the following causes: (1) installation of labor-saving devices; (2) redundancy; (3) retrenchment to prevent losses; and (4) the closing or cessation of operation of the establishment or undertaking, unless the closing is for the purpose of circumventing the provisions of law.[39] Petitioners’ circumstances do not fall under any of the aforementioned causes. As to petitioner Robillo, We find no cogent reason to set aside public respondent’s finding that the former had abandoned his employment.
Abandonment is the deliberate and unjustified refusal of an employee to resume his employment. It is a form of neglect of duty, hence, a just cause for termination of employment by the employer. For a valid finding of abandonment, these two factors should be present: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever employer-employee relationship, with the second as the more determinative factor which is manifested by overt acts from which it may be deduced that the employee has no more intention to work. The intent to discontinue the employment must be shown by clear proof that it was deliberate and unjustified.[40] Indeed, We agree with the NLRC’s pronouncement on this point, viz.:
“As to respondent’s claim that complainant Robillo abandoned his employment, We find the same meritorious. While complainant was on leave, respondents made several attempts to contact him regarding his assessment results as well as the client’s decision to take him back on the same account. As complainant Robillo gave no feedback, he was then sent a letter directing him to report for work as failure to comply shall mean severance of his employment, but then again, he failed to heed.
It is settled 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 work.
Precisely, as complainant Robillo’s off detail status did not sever his employment ties with respondents, it is therefore expected that he should not lose contact with the respondents. As in this case, he should have informed them of his whereabouts, such as his being abroad and should have updated respondents of his contact number. We cannot as well ascribe lack of notice on respondent’s part as they have more than proven that several attempts were made if only to communicate with complainant Robillo. Verily, We can only blame complainant Robillo if circumstances clearly point, that it was him who abandoned his work.” (Citations omitted)
As to petitioners Gudes and Onate, suffice it to state that the filing of the complaint for illegal dismissal is premature, at least insofar as they are concerned. Both were placed on forced leave only on May 28, 2010. However, they filed the complaint for illegal dismissal on August 3, 2010, or well before the lapse of the six-month period under Article 286 of the Labor Code.
In Sebuguero v. NLRC,[41] the Supreme Court ruled that Article 286 may be applied but only by analogy to set a specific period that employees may remain temporarily laid-off or in floating status.
In the case of Superstar Security Agency, Inc., vs. NLRC,[42] the Supreme Court, addressing a similar issue, said:
“The charge of illegal dismissal was prematurely filed. The records show that a month after Hermosa was placed on a temporary ‘off-detail,’ she readily filed a complaint against the petitioners on the presumption that her services were already terminated. Temporary ‘off-detail’ is not equivalent to dismissal. In security parlance, it means waiting to be posted. It is a recognized fact that security guards employed in a security agency may be temporarily sidelined as their assignments primarily depend on the contracts entered into by the agency with third parties (Agro Commercial Security Agencies, Inc. vs. NLRC, et al., G.R. Nos. 82823-24, 31 July 1989). However, it must be emphasized that such temporary inactivity should continue only for six months. Otherwise, the security agency concerned could be liable for constructive dismissal.”
Accordingly, We sustain the NLRC’s observation that:
“As for complainant Onate and Gudes, record shows that while they were placed on forced vacation leave starting 28 May 2010, they already filed their complaints for illegal dismissal barely more than two months thereafter or on 3 August 2010. We need not stress the rule that “off-detailing” is not equivalent to dismissal, so long as such status does not continue beyond a reasonable time and that it is only when such “floating status” lasts for more than six months that the employee may be considered to have been constructively dismissed. A complaint for illegal dismissal filed prior to the lapse of said six-month and/or actual dismissal of the employee is generally considered as prematurely filed. Such were the complaints filed by Onate and Gudes.
Necessarily, as complainants’ Onate and Gudes were not constructively dismissed, We therefore rule for their reinstatement to their previous positions without loss of seniority rights. However, they should not be paid of their backwages.”
Moreover, a reading of the petition reveals that some of the issues raised therein, such as whether petitioner Robillo abandoned his work and whether petitioners really failed in their respective assessments, involve factual matters which require a review of the evidence presented by both parties. It is settled in ComSavings Bank vs. NLRC[43] that resort to a judicial review of the decisions of the NLRC in a petition for certiorari under Rule 65 of the Revised Rules of Court is confined only to issues of want or excess of jurisdiction or grave abuse of discretion on the part of the rendering tribunal, board or office. It does not include an inquiry as to the correctness of the evaluation of evidence which was the basis of the labor official or officer in determining his conclusion.[44] It is therefore not for this Court to reexamine those factual matters nor substitute the findings of fact of the NLRC which has the expertise in its specialized field.[45]
WHEREFORE, premises considered, the instant Petition for Certiorari is DISMISSED. The Decision dated Februay 29, 2012 and Resolution dated April 30, 2012 in NLRC Case No. VAC-11-000866-2011 are AFFIRMED.
Anent the non-inclusion of the National Labor Relations Commission (NLRC), Seventh Division in the title of the case, the Division Clerk of Court is directed to see to it that the NLRC be stated in the records as the public respondent for proper reporting, and that the said office be furnished a copy of this Decision.
SO ORDERED.
Delos Santos, J., Chairperson, and Lopez, JJ., concur.
* To include the National Labor Relations Commission (NLRC), Seventh Division, as the proper public respondent.
[1]
Rollo, pp. 3-7.[2] Id. at 10-27.
[3] Id. at 48.
[4] Petitioner failed to attach a copy of the complaint and failed to indicate its date of filing. It is, however, attached as Annex C of Respondent’s Memorandum of Appeal, Rollo, pp. 181-195.
[5] Annex D of the Petition; Rollo, pp. 49-60.
[6] Rollo, pp. 50-51.
[7] Id. at 52-53.
[8] Id. at 55.
[9] Pages 4-5 of the NLRC Decision dated February 29, 2012; Rollo, pp. 32-33.
[10] Supra.
[11] Rollo, pp. xxx
[12] Annex 4 of Respondent’s Position Paper; Rollo, pp. 264-284.
[13] Annexes 20, 21, 22, 23, 24, 25 and 26 of Respondent’s Position Paper.
[14] Print-out of the electronic mail attached as Annex 27 of Respondent’s Position Paper.
[15] Print-out of the electronic mail dated March 12, 2010 attached as Annex 28 of Respondent’s Position Paper. Rollo, pp. 352-354.
[16] Rollo, pp. 210-212.
[17] Id. at 213-214.
[18] Id. at 219-220.
[19] Rollo, pp. 221-223.
[20] Annexes 42, 43, 44, 45, 46 and 47 of Respondent’s Position Paper; Rollo, pp. 396-418.
[21] Rollo, pp. 218-219.
[22] Annex C of Respondent’s Memorandum of Appeal, Rollo, pp. 181-195, penned by LA Amelia Docena.
[23] Respondent’s Memorandum of Appeal; Rollo, pp. 67-113.
[24] Vide footnote 2.
[25] Annex F of the Petition; Rollo, pp. 197-199.
[26] Vide footnote 3.
[27] Vide footnote 1.
[28] Article 283. Closure of establishment and reduction of personnel. The employer may also terminate the employment of any employee due to the installation of labor-saving devices, redundancy, retrenchment to prevent losses or the closing or cessation of operation of the establishment or undertaking unless the closing is for the purpose of circumventing the provisions of this Title, by serving a written notice on the workers and the Ministry of Labor and Employment at least one (1) month before the intended date thereof. In case of termination due to the installation of labor-saving devices or redundancy, the worker affected thereby shall be entitled to a separation pay equivalent to at least his one (1) month pay or to at least one (1) month pay for every year of service, whichever is higher. In case of retrenchment to prevent losses and in cases of closures or cessation of operations of establishment or undertaking not due to serious business losses or financial reverses, the separation pay shall be equivalent to one (1) month pay or at least one-half (1/2) month pay for every year of service, whichever is higher. A fraction of at least six (6) months shall be considered one (1) whole year.
[29] Rollo, p. 6.
[30] Id. at 511-544.
[31] Id. at 526-535.
[32] Id. at 535-541.
[33] Id. at 470-472.
[34] Id. at 476-478.
[35] Cusi-Hernandez vs. Diaz, G.R. No. 140436, July 18, 2000.
[36] Article 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.
[37] Rollo, pp. 2-3.
[38] Id. at 539.
[39] The Labor Code with Comments and Cases, Vol. II, 2010 Ed. by Cesario Azucena Jr., p. 787.
[40] Agabon v. NLRC, G.R. No. 158693, November 17, 2004.
[41] Sebuguero v. NLRC, G.R. No. 115394 September 27, 1995.
[42] 184 SCRA 74; see also Valdez vs. NLRC, 286 SCRA 87.
[43] 257 SCRA 307, 317 (1996).
[44] Ibid.
[45] Ibid.