RAMON TOOGUE AND FILIPINA YABILLO, IN LIEU OF HER LATE HUSBAND SAUL YABILLO, PETITIONERS, VS. NATIONAL LABOR RELATIONS COMMISSION (FIRST DIVISION) AND GENERAL RUBBER & FOOTWEAR …

In this special civil action for certiorari under Rule 65 of the Rules of Court, the
petitioners urge us to set aside, for having been issued with grave abuse of
discretion, the resolutions of 30 April 1993 and 22 July 1993 of public
respondent National Labor Relations Commission (NLRC) in NLRC-NCR Case No.
00-05-02922-90.^[1]
The first resolution affirmed the decision of 23 November 1990 of Labor Arbiter
Felipe T. Garduque II which dismissed the petitioners’ complaint for retirement
benefits or separation pay, moral and exemplary damages, and attorney’s fees,
while the second resolution denied the motion to reconsider the first
resolution.

We required the respondents to comment on the petition.

In its comment, the private respondent contends that the NLRC
committed no grave abuse of discretion and that a reversal of the challenged
resolutions “would have no practical effect” since the private
respondent “already ceased operations last November 1993 due to bankruptcy
[and] had no more assets to pay even its 100 workers their 13th month pay for
1993 and separation pay.“^[2]

After obtaining five extensions of time to submit the comment for
the NLRC, the Office of the Solicitor General filed on 14 April 1994 a
Manifestation in Lieu of Comment.^[3] It
states therein that Ramon Toogue and Saul Yabillo did not abandon their
employment and are entitled to separation pay, and prays that this petition be
granted. We required the NLRC to file
its own comment if it so desires,^[4] and
in its Comment filed on 27 September 1994, it prays that this case be dismissed
because it raises factual issues and it is settled that the factual findings of
the NLRC are generally accorded not only respect but even finality when they
are supported by substantial evidence as in this case.

After deliberating on the allegations, issues, and arguments
raised by the parties in their aforementioned pleadings, we resolved to give
due course to this petition and to decide it on the basis of the pleadings.

This case originates from NLRC-NCR Case No. 00-05-02922-90, which
is a complaint for retirement benefits or separation pay, moral and exemplary
damages, and attorney’s fees commenced by petitioner Ramon Toogue and the widow
of Saul Yabillo.

The antecedent facts as summarized by the NLRC in its resolution
of 30 April 1993 are as follows:

“Complainant Ramon Toogue started working with respondent
company in September, 1960 while complainant Filipina Yabillo’s husband, Saul
Yabillo, started working with the same company in February 1966; that both
eventually became supervisor and assistant supervisor, respectively, of said
respondent company; that from 7 May 1984 to February 9, 1987, the Samahang
Manggagawa ng General Rubber & Footwear Corporation?ANGLO, declared
four (4) separate strikes lasting from two (2) months to eighteen (18) months
in duration. These strikes caused
serious economic dislocations for the company, forcing it to institute a system
of rotation of employees. And finally
on 12 February 1987, it advised its employees to temporarily find work
elsewhere so as not to suffer economic hardship.

The wording of the Memo to complainants to this effect dated 12
February 1987 from respondent is as follows:

‘In view of the circumstances which the company is presently
undergoing, x x x effective February 16, 1987 x x x wages/salaries will be
suspended. We would therefore, advise
you to look for some temporary means of income x x x until x x x we are back to
normal operations wherein you will be properly notified.’

That complainants found employment with a foreign company in Yemen
and left the Philippines in November 1987; they gave notice to respondent that
they were applying for an indefinite leave of absence;

That on 15 September 1988, a settlement agreement was reached
between the company and the union whereby among other things, the management
agreed to resume operations in twenty-five (25) days.

That on 2 December 1988, respondent sent a letter to all its
employees informing them that the company had resumed its operations since the
strike was settled. Employees were
given seven (7) days to report for work, with the threat of dismissal if they
failed to report within the said period; that on receipt of such letter,
complainants wives wrote respondent on 19 January 1989 requesting the latter to
hold the positions i.e. Supervisor and Assistant Supervisor, occupied by their
husbands until they come home since their non-availability to report for work
in answer to their call was in conformity with the respondent’s letter of 12 February
1987.

That respondent company made no response to their letter of 19
January 1989, requesting that the positions occupied by their husbands be held
in abeyance;

That the late Saul Yabillo returned to the country on 19 December
1989 but died of heart problems on the same date. Complainant Toogue returned on the last week of January, 1990.

That when complainant Toogue reported for work at respondent’s
company, he was told that he was already considered as being on absence without
leave (AWOL) and therefore terminated;

Complainants therefore claim that both Ramon Toogue and Saul
Yabillo were dismissed without justifiable cause and due process, contrary to
Book V, Rule XIV, Sections 1 and 5 of the implementing rules of the Labor Code
which we quote as follows:

‘Termination of
Employment.

Section 1. Security of
tenure and due process. — No worker shall be dismissed except for a just and
authorized cause provided by law and after due process.

Section 5. Answer and
hearing. — The worker may answer the allegations stated against him in the
notice of dismissal within a reasonable period from receipt of such
notice. The employer shall afford the
worker ample opportunity to be heard and to defend himself with the assistance
of his representative, if he so desires.’

Respondent claims on the other hand that complainant were able to
secure employment elsewhere i.e., Yemen, and did not report for work
when required to do so, hence, are considered resigned or have abandoned their
work. As such, both are not entitled to
separation pay.

Respondent further argues that the law does not provide for
separation pay to employees who are considered resigned or have abandoned their
work for failure to report as required since they were both abroad.”^[5]

In the Decision of 23 November 1990,^[6] Labor
Arbiter Felipe Garduque II ruled for the private respondent and dismissed the
complaint for lack of merit on the basis of his findings that Ramon Toogue and
Saul Yabillo abandoned their employment when they “failed to report to work after
they were required to do so.” He reasoned thus:

“In the letter of the respondent dated February 12, 1987 to
individual complainants, it is explicit that the advice refers only to look for
temporary means of income until the operation of the company becomes normal,
and complainants after ten (10) months had passed or on Nov. 1987, they entered
into a two (2) year foreign employment contract despite knowledge that strike
may be settled any time and the same is temporary in nature.”^[7]

The petitioners appealed the decision to the NLRC which, however,
affirmed it in its resolution of 30 April 1993.^[8] The
NLRC held that “when the complainants failed to report for work when
required to do so after the settlement of the labor dispute, the complainants
are considered to have resigned or abandoned their work. Hence, they are not entitled to payment of
separation pay.”

We rule that the petitioners are entitled to separation pay.

Material to the resolution of this case are Articles 283 and 286 of the Labor Code. They provide thus:

“ART. 283. Closure
of the establishment and reduction of personnel. — The
employer may also terminate the employment of any employee … due to … 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 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 … closure 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 (½) 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.

* * *

ART. 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 … 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….”

The suspension of the business operations of the private
respondent having exceeded six months, the employment of Toogue and Yabillo was
thus deemed terminated. In other words,
they were constructively dismissed from employment.^[9] They
are therefore entitled to separation pay.

The private respondent’s contention that Toogue and Yabillo had
abandoned their employment is untenable. Since Toogue and Yabillo had earlier been constructively dismissed when the
suspension of the private respondent’s business operations exceeded six months,
there was no employment to speak of that Toogue and Yabillo could be said to have abandoned. The 2 December 1988 letter of the
private respondent giving Toogue and Yabillo seven days to report for work, with the threat of “dismissal” should they fail to do
so, was in effect a mere offer of re-employment
which cannot be held to prejudice Toogue and Yabillo’s claim for
separation pay.

Even assuming arguendo that there was no constructive
dismissal, the private respondent’s claim of abandonment must still fail. Toogue and Yabillo were forced to seek
overseas employment as a result of their company’s inability to provide them
with gainful work. Certainly, they
cannot be expected to sit idly by and watch their families starve. Furthermore, the private respondent’s 2
December 1988 letter was mailed not to Toogue and Yabillo’s place of work
abroad, which was known to the private respondent, but to their wives and gave
them an unreasonable period of seven days within which to report back for
work. It would thus be unjust to allow
the private respondent to claim as a ground for abandonment a situation which
it itself had brought about. And if
indeed the private respondent felt that Toogue and Yabillo had relinquished
their jobs, then it should have charged them with abandonment.^[10]

WHEREFORE, the resolutions of the National Labor Relations
Commission of 30 April 1993 and 22 July 1993, and the decision of the Labor
Arbiter of 23 November 1990 in NLRC-NCR Case No. 00-05-02922-90 are hereby
REVERSED and SET ASIDE and a new decision is hereby rendered ordering private
respondent General Rubber and Footwear Corporation to award separation pay to
RAMON TOOGUE and SAUL YABILLO each in the amount of one-half (½) month pay for every year of
service, with a fraction of at least six months being considered one whole
year. The amount due to Saul Yabillo
shall be paid to his estate through his wife, petitioner FILIPINA YABILLO.

SO ORDERED.

Padilla, (Chairman), Bellosillo, Quiason, and Kapunan, JJ., concur.

^[1]
Entitled “Ramon Toogue, et al. vs. General Rubber & Footwear Corporation and/or Henry
Chongson, President.”

^[2]
Rollo, 46.

^[3]
Id., 59-66.

^[4]
Id., 69.

^[5]
Rollo, 23-27.

^[6]
Id., 17-21.

^[7]
Rollo, 20.

^[8]
Id., 22-28.

^[9]
Agro Commercial Security Services
Agency, Inc. vs. NLRC, 175 SCRA
790 [1989]; International
Hardware, Inc. vs. NLRC, 176 SCRA 256 [1989]; People’s Security, Inc. vs.
NLRC, 226 SCRA 146 [1993].

^[10]
Hua Bee Shirt Factory vs. NLRC, 186 SCRA 586 [1990].