ROLLY BRADECINA, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION (THIRD DIVISION), []TFM POWERLINE CONSTRUCTION, INC. AND TERESITO JIMENEZ, RESPONDENTS.
SALAZAR-FERNANDO, J.:
Decision dated May 31, 2013 –
“WHEREFORE, the complainant’s appeal is DISMISSED.
The respondents’ partial appeal is GRANTED. The award of 13th month pay is DELETED.
The service incentive leave pay in the amount of P6,093.00 is AFFIRMED.
SO ORDERED.”
Resolution dated July 15, 2013 –
“ACCORDINGLY, complainant’s Motion for Reconsideration is hereby DISMISSED for lack of merit.
No further Motions of similar nature shall be entertained.
SO ORDERED.”
The facts are:
On October 24, 2012, petitioner Rolly A. Bradecina (“Bradecina” for brevity) filed a Complaint[4] for Illegal Dismissal; Non-Payment of Holiday Pay, Premium Pay for Holiday, Service Incentive Leave, Thirteenth (13)-Month Pay, and Emergency Cost of Living Allowance; and Payment of Separation Pay, Backwages, Moral and Exemplary Damages and Attorney’s Fees against private respondents TFM Power Line Construction, Inc. (TFM Power Line for brevity) and Teresito Jimenez (“Jimenez” for brevity) before the NLRC Regional Arbitration Branch No. III, San Fernando City, Pampanga.
In his Position Paper[5], petitioner Bradecina averred that: in 1997, he was employed by private respondent TFM Power Line as a digger; due to his efficiency, effectiveness, loyalty, and dedication, he rose from the rank of lineman to foreman[6] then finally, supervisor; on August 28, 2012, he received a memorandum[7] from private respondent TFM Power Line directing him to explain in writing why no disciplinary action should be taken against him for taking part in the unauthorized use of its equipment; as he submitted his written explanation[8] dated August 29, 2012 to private respondent TFM Power Line, he was mindful that the issuance of the memorandum was just routinary, and whatever explanation that he would give would be an exercise in futility because private respondent TFM Power Line had already made up its mind to terminate his employment; as expected, on September 14, 2012, he received a Notice of Termination[9] dated September 11, 2012 from private respondent TFM Power Line on the sweeping and unsubstantiated ground of serious misconduct; on September 18, 2012[10], he lodged a complaint for illegal dismissal and money claims against private respondents with the Department of Labor and Employment, Bulacan Provincial Field Office; no settlement was reached after several conciliation conferences at the DOLE Bulacan Provincial Office because of private respondents’ stubborn assertion that he was justly dismissed; upon DOLE Bulacan Provincial Field Office’s endorsement, this case was elevated to the NLRC Regional Arbitration Branch No. III, San Fernando City, Pampanga for compulsory arbitration; private respondents failed to appear during the mandatory conciliation conference set by the Labor Arbiter; and, the Labor Arbiter directed the parties to file their respective Position Papers.
On even date, private respondents filed their Position Paper[11] averring that: they discovered the unauthorized use of their basket crew, digging crew, and crane crew to relocate the Meralco poles and live line wires without the Meralco “caution” sign at Zerata Homes Subdivision in Norzagaray, Bulacan sometime in July 2012 by Christopher Bradecina (“Christopher” for brevity), Jimmy Mendoza (“Mendoza” for brevity), and petitioner Bradecina; they learned about this when an engineer of the subdivision project named “Jhun” divulged to their company vice-president, Michael V. Jimenez, that he (Jhun) sought the help of Christopher, Mendoza, and petitioner Bradecina in erecting Meralco poles at Zerata Homes Subdivision; the lack of Meralco “caution” sign in the construction site would endanger the lives of crew personnel, innocent bystanders or anyone who would be minded to pass by the construction area; upon learning of the incident, private respondent Jimenez immediately sent notices to Christopher, Mendoza, and petitioner Bradecina informing them that their actuations would constitute serious misconduct warranting a penalty of dismissal if they were proven to be true, and to explain in writing within forty eight (48) hours why they should not be dismissed; petitioner Bradecina denied taking part in the irregularities but admitted that he was aware of what his brother Christopher and Mendoza did; petitioner Bradecina allegedly tried to stop Christopher and Mendoza but his explanation letter was bereft of any showing that he reported or at least tried to report the matter to the management; in Mendoza’s written explanation, he stated that Christopher advised him to call petitioner Bradecina and relay Jhun’s request to transfer certain electric posts at Zerata Homes Subdivision, which he did; petitioner Bradecina paused on the line for a long while, and finally allowed the said request advising him (Mendoza) to tell their co-workers to be silent about the matter (Nung tinawagan ko si Rolly Bradecina sabi ko kay Rolly sabi ni Christopher Bradecina tawagan kita kasi nakikisuyo yung engr. ng Zerata na mailipat ang poste. Medyo matagal po siyang hindi sumagot sa akin. At nung bandang huli sinabi niya sa akin na sige, sabihan nyo na lang yung mga tao niyo na huwag maingay); Mendoza further confessed that petitioner Bradecina received P3,000.00 of the P75,000.00 given by Zerata Homes Subdivision for the services they rendered; no explanation letter was submitted by Christopher; they found petitioner Bradecina and Mendoza’s explanations unsatisfactory and served Notices of Termination dated September 11, 2012 upon petitioner Bradecina, Mendoza and Christopher and charged them with qualified theft; and, they should be indemnified P42,350.00 for the losses they suffered due to the unauthorized use of their equipment.
On January 31, 2013, the Labor Arbiter rendered a Decision dismissing petitioner Bradecina’s complaint and other money claims for lack of merit, but ordering private respondents TFM Power Line and Jimenez to pay petitioner Bradecina P6,093.00 as service incentive leave and P36,558.00 as thirteenth (13th)-month pay.
On appeal[12] and partial appeal[13] by petitioner Bradecina and private respondents, respectively, and upon petitioner Bradecina’s motion for reconsideration[14], public respondent NLRC, Third Division rendered the aforesaid assailed decision and resolution.
Hence, this petition, raising the following grounds:
I. WITH UTMOST DUE RESPECT, THE HONORABLE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DISMISSING HEREIN PETITIONER’S APPEAL AND AFFIRMING THE DECISION DATED 31 JANUARY 2013 OF THE LABOR ARBITER A QUO UPHOLDING AS VALID THE DISMISSAL OF HEREIN PETITIONER AND IN NOT AWARDING BACKWAGES OR SEPARATION [PAY] TO PETITIONER, WHICH, IF NOT CORRECTED, WOULD CAUSE GRAVE AND IRREPARABLE DAMAGE OR INJURY TO PETITIONER.
II. WITH UTMOST DUE RESPECT, THE HONORABLE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN NOT AWARDING PETITIONER’S CLAIM FOR PAYMENT OF UNPAID SALARY, ECOLA AND HOLIDAY PAY, MORAL AND EXEMPLARY DAMAGES, AND ATTORNEY’S FEES, WHICH, IF NOT CORRECTED, WOULD CAUSE GRAVE AND IRREPARABLE DAMAGE OR INJURY TO PETITIONER.
III. WITH UTMOST DUE RESPECT, THE HONORABLE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN GRANTING PRIVATE RESPONDENTS’ PARTIAL APPEAL AND MODIFYING THE DECISION DATED 31 JANUARY 2013 OF THE LABOR ARBITER A QUO DELETING THE AWARD OF 13TH MONTH PAY TO HEREIN PETITIONER.
IV. WITH UTMOST DUE RESPECT, THE HONORABLE PUBLIC RESPONDENT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN DENYING PETITIONER’S MOTION FOR RECONSIDERATION OF THE DECISION DATED 31 MAY 2013.
Petitioner Bradecina contends that private respondents were not able to establish that he conspired with Christopher and Mendoza in relocating certain electric poles at Zerata Homes Subdivision in Norzagaray, Bulacan using the equipment of private respondents. Neither did private respondents prove that Christopher and Mendoza performed certain irregularities with his knowledge and consent. There is no showing that he exercised supervision and control over Christopher and Mendoza. In January 2013, Mendoza intimated to him that sometime in December 2012, some of private respondent TFM Power Line’s high ranking officials sought, treated the former to a meal at a restaurant, and asked the former to write a second explanation letter dated September 10, 2012 implicating petitioner Bradecina in the unauthorized use of equipment and the relocation of electric poles. Mendoza made no statement that any of private respondents’ equipment were used in relocating the Meralco poles at the subdivision project. The Labor Arbiter and public respondent NLRC erroneously ruled that he was validly dismissed, relying on Mendoza’s second written explanation which came after the complaint was already filed with the Labor Arbiter.
On the other hand, private respondents contend otherwise.
The evidence on record belies petitioner Bradecina’s claims.
Records show that petitioner Bradecina had control and supervision over Mendoza and Christopher and knew about the use of the subject equipments. His written explanation dated August 29, 2012, in response to the Notice to Explain stated “Bilang kasagutan po sa ibinigay nyong sulat sa akin, ang dahilan po kaya po nagawa ang bagay na yon…”. This shows that he was aware of the acts subject of the Notice to Explain.
As a supervisor, petitioner Bradecina occupied a position of trust and confidence, and he was charged with the care and custody of private respondent TFM Power Line’s property, specifically, the equipment.
Further, he had ascendancy, control, and supervision over Christopher and Mendoza and knew of the irregularities committed as stated in his explanation: “Bago pa po nangyari ang nasabing usapin nabanggit ito sakin ni Jimmy Mendoza ngunit hindi po ako pumayag sa kadahilanang ito po ay hindi tama at wala din tayong work order sa nasabing subd”. Yet he did nothing to stop, prevent or correct by reporting them to the management. Besides, it would be unnecessary for Mendoza to inform and obtain petitioner Bradecina’s consent to the Zerata Homes Subdivision project engineer’s request if he exercised no such authority, control and supervision over Christopher and Mendoza’s work.
As to the allegation that Mendoza was forced to implicate him, other than petitioner Bradecina’s bare allegation, there is no showing that private respondents just forced Mendoza to do so. As a matter of fact the second written explanation was recalled.
The “basket truck” and “crane truck” mentioned in the last part of Mendoza’s second written explanation pertain to no other trucks but those belonging to private respondents. One of the aforementioned trucks was even driven by petitioner Bradecina’s brother, Christopher, who was also dismissed from employment for being involved in the said irregularities. Otherwise, Mendoza would not have begged for forgiveness from private respondents for the infractions committed by him (Ako po ay humihingi ng tawad sa inyo sa nagawa kong kasalanan) if the trucks belonging to private respondents were not involved in the relocation of the Meralco poles.
Factual findings of the Labor Arbiter and the public respondent NLRC that petitioner Bradecina conspired with Christopher and Mendoza in contracting unauthorized work and accepting money from the project engineer of Zerata Homes Subdivision for the relocation of electric poles sans job order deserve respect and even finality they being supported by substantial evidence.
When petitioner Bradecina, Mendoza and Christopher contracted with Jhun using private respondents’ equipment, they in effect engaged in a business that competed with private respondents which was in conflict of interest with the latter’s business using even the equipments of their employer. Petitioner Bradecina cannot serve two masters at the same time all at the expense of his employer.
When petitioner Bradecina said to Mendoza to “sabihan nyo na lang yung mga tao niyo na huwag maingay”, petitioner Bradecina displayed his tenacity to act without the approval of the management of private respondent TFM Power Line which is a clear violation of company rule.
Misconduct has been defined as improper or wrong conduct. It is the transgression of some established and definite rule of action, a forbidden act, a dereliction of duty, willful in character, and implies wrongful intent and not mere error of judgment. The misconduct to be serious must be of such grave and aggravated character. Such misconduct, however serious, must nevertheless be in connection with the employee’s work to constitute just cause for his separation. Thus, for misconduct or improper behavior to be a just cause for dismissal, (a) it must be serious; (b) must relate to the performance of the employee’s duties; and, (c) must show that the employee has become unfit to continue working for the employer.[15]
As a measure of self-preservation against acts inimical to its interests, an employer has the right to dismiss an employee found committing acts of dishonesty and disloyalty. The employer may not be compelled to continue to employ such a person whose continuance in the service would patently be inimical to the employer’s interest. The law, in protecting the rights of workers, authorizes neither oppression nor self-destruction of the employer.[16]
If the employees are cashiers, managers, supervisors, salespersons, or other personnel occupying positions of responsibility, the employer’s loss of trust and confidence on said employees may justify the termination of their employment.[17]
Petitioner Bradecina’s aforesaid conduct is constitutive of serious misconduct.
Private respondents’ submission in evidence of Mendoza’s second written explanation against petitioner Bradecina does not preclude the Labor Arbiter from giving it due consideration in the same manner that the NLRC is not precluded from receiving evidence on appeal as technical rules of evidence are not binding in labor cases.
In fact, labor officials are mandated by the Labor Code to use every and all reasonable means to ascertain the facts in each case speedily and objectively, without regard to technicalities of law or procedure, all in the interest of due process.[18]
Public respondent NLRC committed no error in sustaining the Labor Arbiter’s consideration of Mendoza’s second written explanation and upholding the validity of petitioner Bradecina’s dismissal.
Petitioner Bradecina further contends that he is entitled to his claims for unpaid salary, ECOLA, holiday pay, moral and exemplary damages, and attorney’s fees. His abrupt, baseless, unreasonable and whimsical termination from employment by private respondents entitles him to the awards of moral and exemplary damages and attorney’s fees. Private respondents bear the burden to prove payment of his holiday pay and ECOLA. The document captioned “Transaction Validation List, Crediting Date December 13, 2011” does not show due payment of his thirteenth (13)-month pay. He interposed and expounded meritorious grounds in his motion for reconsideration.
Having been found to be dismissed for just cause, petitioner Bradecina is neither entitled to separation pay, backwages nor to moral and exemplary damages and attorney’s fees.
Petitioner Bradecina merely alleged that private respondents should pay his unpaid holiday pay, premium pay for holiday and rest day, service incentive leave pay, and ECOLA. The records are bereft of any allegation much less evidence of the particular time when he had actually rendered compensable service for private respondents in excess of the regular working hours.
It is a basic rule in evidence that each party must prove his/her affirmative allegation. Since the burden of evidence lies with the party who asserts the affirmative allegation, the plaintiff or complainant has to prove his/her affirmative allegations in the complaint and the defendant or the respondent has to prove the affirmative allegation in his/her affirmative defenses and counterclaim.[19]
Private respondents were able to substantiate that the sum of P14,031.25 corresponding to petitioner Bradecina’s thirteenth (13th)-month pay for 2011 was already credited to the latter’s account by presenting the Transaction Validation List.[20]
One who pleads payment has the burden of proving it. Even where the plaintiff must allege non-payment, the general rule is that the burden rests on the defendant to prove payment, rather than on the plaintiff to prove non-payment. The debtor has the burden of showing with legal certainty that the obligation has been discharged by payment. In this case, private respondents were able to prove payment of the said 13th month pay.
When the existence of a debt is fully established by the evidence contained in the record, the burden of proving that it has been extinguished by payment devolves upon the debtor who offers such a defense to the claim of the creditor. Where the debtor introduces some evidence of payment, the burden of going forward with the evidence – as distinct from the general burden of proof – shifts to the creditor, who is then under a duty of producing some evidence to show non-payment.[21]
WHEREFORE, premises considered, the petition DENIED. This Decision dated May 31, 2013 and Resolution dated July 15, 2013 of public respondent NLRC, Third Division, in NLRC LAC No. 04-001211-13(8) NLRC CN. RAB-III-10-19406-12 are AFFIRMED.
SO ORDERED.
CERTIFICATION
Pursuant to Article VIII, Section 13 of the Constitution, it is hereby certified that the conclusions in the above decision were reached in consultation before the case was assigned to the writer of the opinion of the Court.
Bruselas, A.D., Jr., and Gaerlan, S.H., JJ., concur.
[*] The letterhead, ID. etc. of the company bears the name TFM Power Line Construction, Inc.
[1] Rollo, pp. 3-21
[2] Rollo, pp. 23-29
[3] Rollo, pp. 31-32
[4] Rollo, p. 53
[5] Rollo, pp. 55-63
[6] Rollo, p. 48
[7] Rollo, p. 49
[8] Rollo, p. 50
[9] Rollo, p. 51
[10] Rollo, p. 52
[11] Rollo, pp. 64-77
[12] Rollo, pp. 33-47
[13] Rollo, pp. 136-149
[14] Rollo, pp. 130-135
[15] Lopez vs. NLRC, 477 SCRA 596
[16] Ibid.
[17] Azucena, Everyone’s Labor Code, 2012 edition, p. 335
[18] As cited in Clarion Printing House, Inc. vs. NLRC, G.R. No. 148372, June 27, 2005
[19] Aklan Electric Cooperative Inc. vs. NLRC, G.R. No. 121439, January 25, 2000
[20] Rollo, pp. 150-151
[21] Jimenez vs. NLRC, G.R. No. 116960, April 2, 1996