MERCEDES M. BONOTAN, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION (SECOND DIVISION) AND BONIFACIO ONGPAUCO, DOING BUSINESS UNDER THE NAME “BARRIO FIESTA”, RESPONDENTS.

Petitioner Mercedes M. Bonotan prays for the reversal of the
decision of the National Labor Relations Commission, dated February 27, 1992,
dismissing her complaint for unfair labor practice and illegal separation.

Petitioner worked as a food
checker at the “Barrio Fiesta” — Ermita Branch — owned by private
respondent Bonifacio Ongpauco. Petitioner charged that the management, particularly the floor manager
of the restaurant, prevented her from performing her union duties. Allegedly, she was dismissed due to her union activities on May 21,
1990. She filed a
complaint for unfair labor practice and illegal dismissal on August 15, 1990,
praying for the award of backwages and separation pay.

Private respondent had a different version. He claimed that in May 1990, their head
waiter approached petitioner to follow-up on an order of a customer. Petitioner ignored him. The Operations Manager, Mr. Virgilio Montenegro, personally
checked on the order. Petitioner was peeved and shouted at Mr.
Montenegro.

Petitioner’s demeanor constituted insubordination under item no.
12 of the company’s rules and regulations^[1] which
warrants a ten-day suspension. Accordingly, in a Memorandum dated May 21, 1990,^[2]
petitioner was suspended from work for ten (10) days, effective May 22, 1990
until June 2, 1990. Petitioner,
however, refused to acknowledge receipt of the Memorandum.

On June 3, 1990, after the lapse of her suspension, petitioner
still failed to report for work. Private respondent sent a representative, Mr. Reymar Regencia, to
petitioner requesting her to return to work as her services were badly needed
in the restaurant. Petitioner still
refused.

Hence, in a letter dated June 5, 1990,^[3]
petitioner was required to explain her refusal to return to work. Petitioner was also warned that unless she
give a satisfactory explanation, she would be considered as having abandoned
her work.

Private respondent received no word from petitioner. Two (2) months later, petitioner informed
private respondent of her intention to resign. However, she demanded payment of separation pay. Private respondent refused since petitioner
abandoned her job. On August 15, 1990,
petitioner filed a complaint for illegal dismissal and unfair labor practice.

In due time, Labor Arbiter Ricardo C. Nora rendered judgment^[4]
in favor of petitioner ruling that the latter was illegally dismissed from
service.

The judgment was reversed on appeal by the second division of the
National Labor Relations Commission (NLRC). It held that petitioner was not dismissed from service. She was ordered to report back to work,
without any award of backwages, within five (5) days from receipt of the
decision, otherwise she would be considered as having abandoned her job.^[5]

Hence this petition, where petitioner contends:

I

RESPONDENT NLRC HAS NO JURISDICTION TO
ENTERTAIN PRIVATE RESPONDENT’S APPEAL.

II

RESPONDENT NLRC GRAVELY ERRED/ABUSED ITS
DISCRETION IN SETTING ASIDE AND REVERSING THE DECISION OF THE LABOR ARBITER,
DATED JUNE 21, 1991:

BY HOLDING THAT PRIVATE RESPONDENT DID NOT
DISMISS, MUCH, LESS ILLEGALLY, HEREIN PETITIONER

BY HOLDING THAT PETITIONER HAD ABANDONED
HER WORK WITH PRIVATE RESPONDENT

BY HOLDING THAT PETITIONER HAD BELATEDLY
FILED HER FORMAL COMPLAINT

III

RESPONDENT NLRC GRAVELY ERRED/ABUSED ITS
DISCRETION IN NOT SUSTAINING THE AFORESAID DECISION OF THE LABOR ARBITER DATED
JUNE 21, 1991.

The petition is devoid of merit.

In support of her first assigned error, petitioner claims that
public respondent NLRC had no jurisdiction to entertain private respondent’s
appeal for no appeal bond was filed to support it. Further, petitioner contends that the appeal was filed beyond the
reglementary period.

Petitioner’s stance is not sustained by the records of the
case. A perusal of the records will
reveal that private respondent’s appeal was duly supported by a supersedeas
bond with the Philippine Charter
Insurance Corporation as surety.^[6] Likewise, the appeal was filed on time as
explained by public respondent in its Comment^[7] viz:

“With regard to petitioner’s claim that there was no
allegation on the part of private respondent of the date when it received a
copy of the Labor Arbiter’s decision, we must point out that in fact said date is contained in the first page, first paragraph
of the appeal. Petitioner’s
counsel however must have overlooked the mentioned portion of the appeal which
states:

Respondent-appellant, by counsel, respectfully brings this appeal
before the Honorable Commission, challenging the 21 June 1991 decision of the
Labor Arbiter Ricardo Nora finding that complainant was illegally
dismissed. The dispositive portion of
the decision, copy of which was received 5 July 1991, reads: x x x”

In support of the second assigned error, petitioner maintains
that: (1) she was dismissed due to her
union activities; (2) she did not receive any notice of her suspension, and (3)
she did not abandon her job.

The evidence on record repudiates the pretension of petitioner.

At best, petitioner could only make a vague and general charge of
union busting and illegal dismissal against her employer. Her claim that she was prohibited from
reporting for union activities and that her dismissal from service was
due to her affiliation with
the company’s labor
union require substantial evidence. No concrete evidence or specific circumstance
was cited by petitioner to prove her accusations.

Similarly, petitioner’s insistence that she had no notice of her
suspension is belied by the evidence. The records will bear that on May 21, 1990, petitioner had an argument
with the operations manager of the restaurant. Immediately, on the same day, at around 10:35 p.m., private respondent
issued a Memorandum to petitioner informing the latter of her ten-day suspension
from work for insubordination. Petitioner,
however, refused to acknowledge receipt of the Memorandum. Her presence at the restaurant and refusal
to receive service of the Memorandum were witnessed by three (3) of her
co-employees.^[8]
After the lapse of her suspension, a representative of private respondent, Mr.
Reymar Regencia, went to petitioner’s residence and informed the latter of the
lapse of her suspension and that her services were badly needed at the
restaurant. Petitioner paid no heed. She still did not report for work. Finally, on June 5, 1990, private respondent
sent another letter to petitioner requiring her to explain her continued
absence from work, with a warning that unless a satisfactory explanation is
given, petitioner shall be considered as having abandoned her job. Again, there was no response from
petitioner. After a couple of days,
petitioner went to see private respondent and demanded from the latter her
separation pay. Understandably, private
respondent refused for petitioner was never dismissed but has, in fact, abandoned
her work. Further, it should be
stressed that petitioner’s failure to return to work without justifiable cause
and her prolonged absence without leave has been duly recorded by private
respondent in petitioner’s time card. A
report relative thereto was also submitted to the Department of Labor pursuant
to Section II, Rule XIV of the Rules Implementing Batas Pambansa 130.^[9]

It bears emphasis that at no time in the proceedings below
and in this Court did petitioner ever deny the occurrence of the May 21, 1990
incident and the charge of insubordination against her which precipitated her
suspension from work. Instead,
petitioner claims ignorance regarding her ten-day suspension and, to this day,
insists that she was never notified of the same.

However, her actions subsequent to the issuance of the suspension
order contradict her claim of lack of notice. Firstly, petitioner’s altercation with the manager which resulted
in her suspension happened on May 21, 1990. Petitioner insists that the Memorandum was not served on her and she had
no notice that she was suspended from work for ten (10) days, effective May 22,
1990. The records, however, show that petitioner
did not report for work on May 22, 1990, the first day of her suspension. She did not offer any explanation therefor
nor did she file any leave for her absence. The reasonable conclusion is that she did not report for work on
May 22, 1990 for she has knowledge in fact that she was suspended from
work. Secondly, even assuming
that she was not served the May 21, 1990 Memorandum informing her of her
suspension, private respondent may be deemed to have substantially complied
with the requisite notice and hearing. It will be noted (and again, it was never denied by petitioner) that
after the lapse of the period of her suspension, a representative of private
respondent, Mr. Reymar Regencia, personally went to her residence informing her
of the same and requesting her to go back to work. She did not. In a final
move, private respondent sent a letter to petitioner on June 5, 1990 requiring
her to explain her continued absence from work. Still, nothing was heard from petitioner until more than two (2)
months later, or on August 15, 1990, when petitioner filed a complaint for
illegal dismissal. Taking into account
the factual circumstances of the case, petitioner cannot reasonably claim
ignorance of the fact of her suspension from work and the cause thereof. Knowledge of the issuance of the suspension
order must thus be imputed to petitioner.

Abandonment of work on the part of an employee is never taken
lightly. It requires clear and
convincing evidence of: (1) the
employee’s intention to abandon his job, and (2) some overt act from which it
may be inferred that the employee had no more intent to work.^[10] These two (2) requisites were sufficiently
proved and established by private respondent as discussed above.

We thus accord finality to the factual finding of public
respondent NLRC, supported as it is by substantial evidence, that petitioner
abandoned her work and unjustifiably refused to return to work after the lapse
of her suspension therefrom. However,
in the case of Sampang v. Inciong,^[11]
the Court ruled that in determining the penalty to be imposed on an erring employee, due consideration must be given to
the employee’s length of service and the number of violations he
committed during his employ.

In the case at bench, since petitioner has been in the service of
Barrio Fiesta for the past twenty-six (26) years^[12] and
nowhere in the records does it appear that she committed any previous violation
of company rules and regulations, we find that the decision of public
respondent NLRC ordering her to return to work without backwages is just and
equitable. Petitioner’s dismissal from
work would be too severe a penalty under the circumstances.

IN VIEW WHEREOF, the petition is DENIED for lack of
showing of any grave abuse of discretion on the part of public respondent
NLRC. The impugned decision of public
respondent is thus affirmed. No costs.

SO ORDERED.

Narvasa, C.J., (Chairman), Regalado, and Mendoza, JJ., concur.

^[1]
Annex “D”, Petition, Rollo, at p. 62.

II. UGALI AT GAWI SA TRABAHO

12. Pagtanggi o di pagsunod sa utos
ng supervisor o mga nakakataas o harapang pagbabalewala sa instruksyon nito
tungkol sa operasyon ng negosyo, safety measures, performance of work or
disobedience.

^[2]
Annex “E”, Petition, Rollo, p. 69.

^[3]
Annex “K”, Petition, Rollo, p. 75.

^[4]
Decision dated June 21, 1991, Annex “A”, Petition, Rollo, pp.
16-22.

^[5]
Decision, dated February 27, 1992, Annex “B”, Petition, Rollo,
pp. 24-31.

^[6]
Annexes “N” and “O”, Comment, Rollo, pp. 78-80.

^[7]
Rollo, at pp. 48-49.

^[8]
Annex “E”, Comment, Rollo, p. 69.

^[9]
See Annexes “F”, “G”, “L” and “M”,
Comment, Rollo, pp. 70-71 and 76-77.

^[10]
C. Alcantara & Sons, Inc. v. NLRC, G.R. No. 73521, January 5, 1994,
229 SCRA 109; People’s Security, Inc. v. NLRC, G.R. No. 96451, September
8, 1993, 226 SCRA 146.

^[11]
G.R. No. L-50992, June 19, 1985, 137 SCRA 56; citing the case of Philippine Air
Lines v. Philippine Air Lines Employees Association, G.R. No. L-246226,
June 28, 1974, 57 SCRA 489, at p. 496.

^[12]
Petitioner’s Memorandum, Rollo, at p. 139.