LEOPOLDO G. DIZON, PETITIONER, VS. NATIONAL LABOR RELATIONS COMMISSION AND D.M. CONSUNJI, INC., RESPONDENTS.

Petitioner Leopoldo G. Dizon seeks to annul
and set aside the decision of the respondent National Labor Relations
Commission (NLRC) dated 6 March 1987 reversing the decision rendered by the Administrator of the Philippine Overseas
Employment Administration (POEA).  The
POEA decision had ordered private respondent D.M. Consunji,
Inc. (Consunji), to pay petitioner the amounts of
RPP1,837.86 and US$6,720.00 representing his unpaid
salaries for the period from May to June 1982 and his wages for twenty-one (21)
months covering the unexpired portion of his contract, respectively.

On 4 December 1981, petitioner Leopoldo
Dizon entered into an Overseas Employment Contract^[1]
with respondent Consunji which stipulated, among other things, that for
a period of two (2) years
petitioner would work as a
senior carpenter for Consunji at its New Istana Construction
Project in the State of Brunei for a monthly salary of US$320.00; that should the petitioner voluntarily resign before the expiry date of the contract or should his contract be terminated for cause
as provided therein, petitioner shall be liable for the reimbursement of his transportation fare back to the Philippines
and other incidental expenses incurred by the company in his favor.  Petitioner departed for Brunei
on 3 March 1982, the date
when his contract took effect.

Sometime in April 1982,
petitioner, according to him, became afflicted with skin rashes which forced
him to seek medical help from
the Company‘s
clinic at the project site.  He was
treated there on the following dates: 
13, 29 April; 3, 25, 28, 29 May; 1 and 7 June.^[2] On some of those days, petitioner,
by his own averment, did not report
for work and was oftentimes constrained to remain inside his quarters while taking oral medication.

On 17 May 1982, petitioner was again absent from his work place
when respondent’s workers in the New Istana Project staged a strike demanding an increase of salary.  Considering that what
was being constructed on the site was
the Sultan’s Palace which had to be finished in time for the Independence Day of the State of
Brunei in 1984, POEA Director Manuel G. Imson, upon request of Consunji,
and after Brunei authorities had made clear that the strike was illegal under
Brunei law, was dispatched by the Ministry of Labor and Employment to the site
to resolve that problem.  Director Imson, however, failed to convince the workers to enter
into a compromise agreement with Consunji.  Consequently,
after visually observing the
strike and after Consunji listed the names^[3] of the participants in said strike,
Director Imson issued on 21 May 1982 a return-to-work order.^[4]
Petitioner failed to comply with that directive; according to him, he was then
still suffering from severe skin rashes. 
He reported to the medical clinic on 29 May 1982 and on 1 and 7 June
1982 to continue his treatment and medication.

On 9 June 1982, or barely
three (3) months from the date of effectivity of petitioner’s employment contract, Consunji terminated the services of some three hundred
sixty (360) workers in the New Istana
Project, including those of petitioner, upon the ground that they had
breached paragraphs (e) and (f) of clause 13 of their employment contracts.^[5]

On 18 August 1982, after
repatriation to the Philippines, petitioner commenced BES Case No. 82-2764
charging Consunji with illegal dismissal; non-payment
of seventy percent (70%) of his salary for the months of May and June 1982; unfair deductions for his
repatriation expenses; and unfair labor practice.

Consunji denied the illegal dimissal
charge and claimed that petitioner had been validly dismissed, considering that
he had breached the contract of employment by taking part in an illegal strike and disobeying the return-to-work order issued by the POEA Director.

On 7
March 1985, Administrator Patricia Sto. Tomas of the Workers’ Assistance and
Adjudication Office of the POEA, after finding that there was no evidence clearly showing that petitioner had participated in the
illegal strike and had defied the return-to-work order of the POEA, rendered a
decision in favor of petitioner.  The dispositive portion of the decision states:

“WHEREFORE, consistent with the above findings, judgment is
hereby rendered ordering respondent D.M. Consunji,
Inc. to pay the following:

(a) the sum of P1,837.86 representing the
complainant’s unpaid salary (70%) for the months of May and June 1982; and

(b) the sum of US$6,720.00 or its equivalent [in] Philippine
Currency at the time of actual payment, representing complainant’s wages for
the unexpired portion of his contract which is 21 months at the rate of
US$320.00 a month.

SO ORDERED.”^[6]

Consunji went on appeal to the NLRC.  The NLRC reversed the POEA Administrator in a
decision^[7] dated 6 March 1987 declaring petitioner’s
dismissal to have been effected for justifiable cause.  Hence this recourse on certiorari.

The sole issue to be
resolved in this case is whether the dismissal of petitioner Dizon was justified on the ground that he had participated
in the illegal strike and had refused to obey Director Imson’s
return-to-work order.

The petition must be
granted.

It is firmly settled that
in an unlawful dismissal case, the employer has the burden of proving the
lawful cause sustaining the dismissal of the employee.^[8] Respondent Consunji
did show that petitioner Dizon was not in his
workplace on 17 May 1982, the day the strike was declared and went into effect,
as well as on 24 May 1982, the day the return-to-work order became
effective; actually, petitioner himself so stated in his pleadings before the
POEA.  Thus, Consunji
was able to make out (even if only
by petitioner’s own statements) a prima
facie case that petitioner had joined in the strike and had failed to
comply with the return-to-work order of Director Imson,
which constituted grounds for holding petitioner liable for breach of his
contract of employment and hence for dismissing him from his employment.  It must be noted, however, that petitioner Dizon showed, by a letter dated 4 January 1983 of
respondent Consunji’s project-nurse, that he had been
afflicted with severe skin rashes for sometime and that he had reported at the
Company clinic thrice before 17 May 1982 and visited the same clinic
five (5) times after 21 May 1982, for treatment and medication.^[9]
Petitioner Dizon denied participation in the strike
and disclaimed any intent to defy the return-to-work order.  He stated that on 17 May 1982, he went to the
Company clinic and thereafter returned to his quarters but that the
project-nurse had failed to include 17 May 1982 among the dates he had gone to
the Company clinic.^[10]
Thus, while petitioner’s
evidence (as distinguished from his pleadings) did not show affirmatively that
he had indeed visited the Company clinic on 17 May 1982, it appears to the
Court that petitioner submitted on at least a prima facie basis
an adequate explanation for his absence from his work station on the day the
strike began and the day the
return-to-work order went effective. 
Petitioner, in other words, offset or negatived
the prima facie case made out by private respondent Consunji for a lawful dismissal:  the balance of evidence thus moved to
equipoise.

But equipoise is not enough; the employer must affirmatively
show rationally adequate evidence that the dismissal was for a justifiable
cause.  The burden of proof in effect
moved back to and once again rested on respondent Consunji,
the employer asserting the existence of a just cause for dismissal.  This burden of proof Consunji
did not discharge.

As a large and
well organized company, Consunji may be presumed to
have kept personnel records showing, e.g., which employees were present or
absent for work on particular days.  No
records were submitted in evidence to show whether or not petitioner Dizon reported for work or went on sick call on or between
the dates he went to the clinic for treatment. 
It is contended that Dizon’s skin rashes were
not debilitating and not sufficient to explain his failure to report for work;
but no certificate or statement relating to the medical or physiological nature
and effect of those rashes, or to the cause thereof, was presented by employer Consunji’s counsel. 
Moreover, even should competent proof of the
“non-debilitating” character of Dizon’s
skin rashes have been put into the record, such would not necessarily have
shown intent to participate in the strike to defy Director Imson’s
order; such proof would have been consistent
with, for instance, laziness and gold-bricking on Dizon’s
part.  The list of the strikers’ names
made on the project site while the strike was in progress was similarly, and
conspicuously, not submitted in evidence.

The failure of Consunji to discharge
the onus probandi resting on it, must be taken in conjunction
with its conceded failure to conduct an investigation on the project site
before serving Dizon his notice of termination.  It may be supposed that the carrying out of
such an investigation on site before repatriation,
would not have been easy.  But petitioner was entitled under our law to an investigation where he
would be informed of the charges against him and have an opportunity to
present his defense or explanation before being dismissed.  What is at stake in such a case is not simply
a property right but also the employee’s means of livelihood.^[11]
Besides, if an investigation had been conducted, Consunji
might well have been convinced by Dizon’s
explanation.

We conclude that private respondent Consunji
had failed to show that justifiable cause had attended petitioner Dizon’s dismissal and that public respondent NLRC’s decision relieving Consunji
of liability for such dismissal was not supported by susbtantial evidence of record and hence
constituted a
grave abuse of discretion.

As to the amount of
damages to which petitioner Dizon is entitled, the
Court considers that, given all the circumstance of this case, and to avoid the
delay and difficulty of proving that petitioner had earned some income
during the relevant period to mitigate
his damages, an award equivalent
to his contract salary for fourteen (14) months, (rather than for the full
unexpired term of the contract — twenty-one [21] months) without any
qualification or deduction, would be sufficient and reasonable.

We must similarly hold
that private respondent Consunji had no basis for
withholding from petitioner his last two months salary (for May and June 1982)
and deducting there­from his repatriation and related
expenses.

WHEREFORE, the decision of the public respondent NLRC
dated 6 March 1987 is hereby SET ASIDE and the decision of the POEA dated 7
March 1985 is hereby REINSTATED and MODIFIED so as to
require private respondent Consunji to pay petitioner
Dizon the following:

a) the sum of RPP1,837.86 representing
petitioner’s unpaid salary (70%) for the months of May and June 1982; and

b) the sum of US$4480 or its equivalent in
Philippine currency at the time of actual payment representing his wages for
fourteen (14) months at the rate of US$320 a month.

No
pronouncement as to costs.

SO ORDERED.

Fernan, C.J., Gutierrez, Jr., Bidin, and Cortes, JJ., concur.

^[1]
Record, pp. 11-16.

^[2]
Ibid., p. 56.

^[3]
Ibid., p. 59.

^[4]
Record, Annex “2,” p. 9.

^[5]
“(e) Indulging in activities
contrary to the COMPANY’s interest, or such
activities as would cause stoppage or slow downs of work, or violate
company rules and regulations, violate Overseas Employment Agreement.

(f) EMPLOYEE shall have engaged himself in any activity,
political or subversive, or any act of misconduct
during the enforcement of this Employment Agreement; It is specially understood
that under the state laws of
Brunei, misbehaviour amounting to a violation of
Brunei laws committed inside or outside the jobsite is punishable by
deportation; unless the act itself involves the possession of any FIREARM,
AMMUNITION, or any other kind of DEADLY WEAPON, which acts are strictly
prohibited, and severely punishable by death
under Brunei laws;” Record, Annex “2” of respondent’s Position
Paper, p. 9.

^[6]
Rollo, p. 30.

^[7]
Rollo, Annex “H” of Petition, pp. 47-53.

^[8]
Egypt Air v. National
Labor Relations Commission, 148 SCRA 125 (1987); Polymedic General Hospital v. National Labor
Relations Commission, 134 SCRA 420 (1985).

^[9]
Annex A to Petitioner’s “Reply to Rejoinder” dated 14 February 1983 in BES Case No.
82-2764; Record, p. 60.

^[10]
Petitioner’s “Reply to Rejoinder”, ibid; Record, p. 59.

^[11]
International
Harvester Macleod, Inc. v. Intermediate Appellate Court, 149 SCRA 641
(1987); and Remerco Garments Manufacturing Co. v.
Minister of Labor and Employment, 135 SCRA 167 (1985).