Concrete Solutions, Inc./Primary Structures Corporation vs. Cabusas

Abandonment as a just cause for dismissal requires the concurrence of two elements — the failure to report for work or absence without valid or justifiable reason, and a clear intention to sever the employer-employee relationship, the second being the more determinative and manifested by overt acts — and the filing of an illegal dismissal complaint with a prayer for reinstatement negates such intent. Where a project employee is dismissed before the expiration of a validly fixed term and without just cause, the dismissal is illegal, but reinstatement may be denied and the employee awarded only the salary for the unexpired portion of the contract if the project has already been completed.

Petitioner Primary Structures Corporation engaged respondent Arthur Cabusas as a transit mixer driver for the Batching Plant Project of petitioner Concrete Solutions, Inc. The employment relationship was governed by Article 280 of the Labor Code, which classifies as project employees those whose employment is fixed for a specific project or undertaking, the completion or termination of which is determined at the time of engagement. The dispute required the Court to apply the statutory requisites for abandonment as a just cause for termination and the test for project employment in determining the proper relief.

Respondent Arthur Cabusas was hired by petitioner Primary Structures Corporation (PSC) as a transit mixer driver for petitioner Concrete Solutions, Inc. (CSI) – Batching Plant Project. The appointment letter dated June 27, 2000, signed by PSC's Human Resource Division Assistant with respondent's conformity, fixed his employment for the period from June 28, 2000 until June 23, 2001, described his status as that of a project employee whose employment was co-terminus with the completion of the project or any phase thereof, and reserved to petitioners the right to terminate his employment without liability should his performance fail to meet company standards or should he violate company rules and regulations.

On February 16, 2001, a report reached petitioners that at around five o'clock in the afternoon of that day, respondent, as driver of Transit Mixer 13, unloaded less than a cubic meter of concrete mix at Cabancalan, Mandaue City, more than two kilometers away from the project site at Wireless, Mandaue City, instead of returning the excess concrete mix to the plant, and that he sold the excess concrete mix to residents of the place where he unloaded it. On March 7, 2001, petitioners' Administrative Assistant Carlo E. Gimena submitted an Incident Report stating that company policy required washing and cleaning of drums to be done inside the plant to maximize the utilization of concrete residues for precast use, and that nearly a cubic meter of excess concrete mix would have been a substantial quantity for such purpose. On March 8, 2001, petitioners' Manager Anastacio G. Ardiente, Jr. required respondent to explain in writing why he should not be meted disciplinary action for theft or dishonesty under the company's Code of Conduct and Discipline. In his explanation, respondent stated that he threw away the concrete mix at Cabancalan, Mandaue City instead of turning it over to the plant because he would wash the transit mixer at A.S. Fortuna, Mandaue City. Respondent was meted a three-day suspension effective March 20, 2001 to March 22, 2001.

On April 19, 2001, petitioners received information that respondent allegedly took the company's plastic drum for personal gain. In his Incident Report dated April 20, 2001, Gimena reported that at 10:00 a.m. of April 19, 2001, respondent took an empty plastic drum and hid it in Transit Mixer 13 on his way to deliver concrete mix to Ayala Heights, and that respondent admitted the commission of the act, which another transit mixer driver could attest to; Gimena recommended further investigation to include the security guards on duty. Respondent was asked to explain why no disciplinary action should be meted on him and to attend the formal investigation on April 26, 2001. In his written explanation, respondent denied the accusation and claimed that he could not have driven the transit mixer out of the company's premises without passing through the guard house, making it impossible to steal the plastic drum without the guard's knowledge. He personally delivered his letter of explanation to the company but was refused entry by the security guards. Respondent was placed under preventive suspension from April 20, 2001 to April 27, 2001 pending investigation.

The administrative investigation scheduled on April 26, 2001 was postponed to May 4, 2001, and respondent's preventive suspension was extended up to May 5, 2001. Respondent alleged that after the investigation on May 4, 2001, he and his counsel asked for the result of the investigation and were waiting for such result. While petitioners were deliberating on the violation committed by respondent, they went over his 201 file and discovered that he appeared not to be registered with the Social Security System, the SSS number he submitted being that of another person in the name of Alex Cabusas. Petitioners needed clarifications from respondent, but the latter had been absent since May 6, 2001. On May 25, 2001, petitioners sent respondent a telegram stating: "You have been absent without official leave since May 6, 2001. Please notify CSI as soon as possible." On June 12, 2001, petitioners, through Manager Ardiente, sent respondent a termination letter stating that respondent had been absent from work without filing a Leave of Absence, that a Notice of Abandonment had been sent on May 25, 2001 via telegram, and that because two weeks had elapsed without respondent complying, they were constrained to terminate his services effective on the date he abandoned his work. Petitioners submitted to the Department of Labor and Employment an Establishment Termination Report indicating that the project where respondent was assigned was already completed and that respondent was terminated for being absent without leave.

Earlier, on May 30, 2001, respondent had filed with Regional Arbitration Branch No. VII of Cebu City a complaint for unfair labor practice, illegal dismissal, non-payment of holiday pay, premium pay for holiday, rest day, night shift premium, separation pay and moral damages against petitioners. In his position paper, respondent alleged that it was not true that he went on AWOL; that after the administrative investigation on his alleged theft of company property was conducted and terminated on May 4, 2001, his counsel asked to be furnished a copy of the result, and since then they waited for such result, only to be surprised by a telegram on May 26, 2001 stating he had been AWOL since May 5, 2001; that immediately upon receipt of the telegram he went to petitioners' office but was refused entry for the reason that he was AWOL; that there was no valid cause for his dismissal and petitioners found the lame excuse of declaring him AWOL only to create a semblance of justification for his unlawful termination; and that he had tendered a follow-up letter for a copy of the resolution of the administrative investigation, but petitioners refused to receive the copy he personally delivered, compelling his counsel to send the letter by registered mail on May 29, 2001. Respondent prayed for his reinstatement, among others.

The Labor Arbiter found that respondent was validly dismissed as he abandoned his job, that he failed to report for work despite the telegram directive, that his claim of having been refused entry was unsubstantiated, and that his credibility was doubtful since he claimed he was dismissed on May 4, 2001 although the records showed he was being investigated for stealing plastic drums on that day and had furnished an SSS number that did not belong to him. The NLRC, on the other hand, found that respondent's absence was not without justifiable reason, that the alleged preventive suspension order was unwritten, that the telegram did not direct him to report for work, and that his filing of the illegal dismissal complaint before his dismissal negated any intention to forsake his work; it also found that respondent was constructively dismissed and rejected the claim of project employment. The Court of Appeals affirmed the NLRC, holding that respondent immediately filed a complaint for illegal dismissal and that an employee who forthwith protests his layoff cannot be said to have abandoned his work.

• Abandonment: Petitioners maintained that respondent was validly dismissed because he abandoned his work, as shown by the following circumstances: he did not go back to work on May 6, 2001 after his preventive suspension expired on May 5, 2001; he did not report to work despite receipt of the telegram on May 25, 2001; instead, through his lawyer, he sent a letter asking for a copy of the result of the investigation; despite not being given the result, he still did not report back to work; and the complaint he filed with the Labor Arbiter did not pray for reinstatement.
• Project Employment and Reinstatement: Petitioners contended that respondent was a project employee and the project to which he was hired was already completed, so he could no longer be reinstated.
• Loss of Trust and Confidence: Petitioners argued that respondent's violations of company rules also warranted his termination on account of loss of trust and confidence.
• Employer Identity: Petitioners raised for the first time the claim that it was only petitioner PSC which was respondent's employer and that petitioners PSC and CSI are two different corporate entities.

• Absence Was Justified: Respondent alleged that it was not true that he went on AWOL; his absence from work was due to the fact that he and his counsel had asked for and were waiting for a copy of the result of the investigation on his alleged act of theft or dishonesty conducted on May 4, 2001, which was never given.
• Constructive Dismissal: Respondent claimed that immediately upon receipt of the telegram he went to petitioners' office but was refused entry for the reason that he was AWOL, which showed that he was constructively dismissed.
• False Imputation of Dishonesty: Respondent maintained that petitioners' imputation that he committed dishonest acts was founded on falsehood and fabrications, as no evidence was presented during the administrative hearing except the self-serving and perjured statements of petitioners' employees.
• Prayer for Reinstatement: Respondent prayed for his reinstatement, among others, which he reiterated in his position paper.

• Abandonment: Whether respondent deliberately abandoned his work, which is a just cause for his dismissal, or whether he was illegally dismissed by petitioners.
• Reinstatement and Backwages: Whether the Court of Appeals committed a reversible error in affirming the NLRC's award of respondent's reinstatement and backwages, given petitioners' claim that respondent was a project employee whose project was already completed.
• Employer Identity: Whether petitioners may raise for the first time on appeal the claim that only petitioner PSC was respondent's employer and that PSC and CSI are two distinct corporate entities.

• Abandonment: No. The elements of abandonment are lacking, and the employer failed to substantiate its claim that respondent abandoned his work; the filing of a complaint for illegal dismissal negates any intent to sever the employment relationship.
• Reinstatement and Backwages: Reinstatement is denied, but salary for the unexpired portion is awarded. Respondent was a project employee whose employment was fixed for a specific project, and although his dismissal before the contract's expiration and without just cause was illegal, he could no longer be reinstated since the project was already completed; he is entitled to his salary from May 26, 2001 up to June 23, 2001.
• Employer Identity: No. Issues not raised or ventilated in the court a quo cannot be raised for the first time on appeal.

• Abandonment: In termination cases, the burden of proof rests upon the employer to show that the dismissal was for a just and valid cause, and failure to discharge the same means the dismissal is not justified and therefore illegal. To constitute abandonment, two elements must concur: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt acts. Abandonment is a matter of intention and cannot lightly be presumed from equivocal acts; to be a valid cause for dismissal, there must be clear proof of deliberate and unjustified intent to sever the employer-employee relationship, and the operative act is the employee's ultimate act of putting an end to his employment. The elements were lacking. Respondent explained that his absence was due to the fact that he and his counsel had asked for and were waiting for a copy of the result of the investigation conducted on May 4, 2001, which was never given; mere absence or failure to report for work is not tantamount to abandonment, and even the failure to report for work after a notice to return has been served does not necessarily constitute abandonment. When respondent received the telegram on May 25, 2001, he went to petitioners' premises but was refused entry for the reason that he was AWOL, and he tried to deliver a letter dated May 26, 2001 from his counsel requesting a copy of the resolution of the investigation, but petitioners refused to receive it, prompting counsel to send the letter by registered mail on May 29, 2001; the fact of refusal was stated in that letter and was never refuted, which in effect negates petitioners' claim that respondent did not comply with the telegram. There was no showing of intent to sever the employer-employee relationship. The refusal of entry to petitioners' premises and the refusal to accept counsel's letter already amounted to constructive dismissal, which led respondent to file an illegal dismissal case on May 30, 2001; the proximity of the filing of the complaint to the receipt of the telegram and the refusal of entry showed that he had the least intention of abandoning his job, and the filing of a complaint for illegal dismissal with a prayer for reinstatement is proof enough of his desire to return to work. While respondent failed to ask for reinstatement in his complaint, he specifically prayed for reinstatement in his position paper. Petitioners' claim that respondent's violations of company rules warranted termination for loss of trust and confidence deserved scant consideration, since his dismissal was not due to those alleged dishonest acts but to abandonment; the June 12, 2001 termination letter merely sought an explanation on his alleged absence without official leave and mentioned nothing about dishonesty or misconduct, and if respondent was indeed guilty of both abandonment and dishonesty, petitioners should have stated them in the notice.
• Reinstatement and Backwages: A project employee is one whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee, or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season. The length of service of a project employee is not the controlling test of employment tenure, but whether the employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of engagement. Respondent was a project employee: his appointment letter showed that he was hired as transit mixer driver for the CSI – Batching Plant Project for the period from June 28, 2000 until June 23, 2001, and provided that he was a project employee whose employment was co-terminus with the completion of the project or any phase thereof and that upon completion he was free to seek other employment. There was no evidence that respondent did not voluntarily sign the conforme part of the appointment letter, so he was bound by its provisions; neither was there any showing that the fixed period was imposed to preclude acquisition of tenurial security and should be disregarded as contrary to public policy, as the NLRC had ruled, since no evidence on record supported such conclusion. Considering that respondent was dismissed prior to the expiration of the duration of his employment and without a valid or just cause, his termination was illegal; however, he could no longer be reinstated since the project he was assigned to was already completely finished, and he is entitled to the salary corresponding to the unexpired portion of his employment, that is, from the time he was not admitted back to work on May 26, 2001 up to June 23, 2001, the expiration of his employment contract.
• Employer Identity: Petitioners cannot raise for the first time their claim that it was only petitioner PSC which was respondent's employer and that petitioners PSC and CSI are two different corporate entities. This issue had not been submitted for determination before the Labor Arbiter, the NLRC, or the Court of Appeals but only in this petition. The settled rule is that issues not raised or ventilated in the court a quo cannot be raised for the first time on appeal, as to do so would be offensive to the basic rules of fair play and justice.

• Abandonment as a Just Cause for Dismissal — Abandonment requires the concurrence of two elements: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt acts. Abandonment is a matter of intention and cannot lightly be presumed from equivocal acts; there must be clear proof of deliberate and unjustified intent to sever the employment relationship, the operative act being the employee's ultimate act of putting an end to his employment. Mere absence or failure to report for work is not tantamount to abandonment, and even the failure to report for work after a notice to return has been served does not necessarily constitute abandonment. The filing of a complaint for illegal dismissal with a prayer for reinstatement is proof enough of the employee's desire to return to work, negating the employer's charge of abandonment. In this case, the employer failed to discharge the burden of proving both elements, and respondent's immediate filing of the illegal dismissal complaint negated any intent to abandon his job.
• Burden of Proof in Termination Cases — In termination cases, the burden of proof rests upon the employer to show that the dismissal was for a just and valid cause; failure to discharge the same means the dismissal is not justified and therefore illegal. Petitioners failed to substantiate their claim that respondent abandoned his work.
• Project Employment — A project employee is one whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee, or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season. The length of service of a project employee is not the controlling test of employment tenure, but whether the employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of engagement. Where the fixed period is not shown to have been imposed to preclude acquisition of tenurial security, it must be respected. Respondent was held to be a project employee bound by his appointment letter.
• Relief for an Illegally Dismissed Project Employee — Where a project employee is dismissed before the expiration of the duration of his employment and without a valid or just cause, the termination is illegal; however, reinstatement may be denied where the project to which he was assigned has already been completely finished, and he is instead entitled to the salary corresponding to the unexpired portion of his employment.
• Issues Not Raised Below — Issues not raised or ventilated in the court a quo cannot be raised for the first time on appeal, as to do so would be offensive to the basic rules of fair play and justice. Petitioners' belated claim that only PSC was respondent's employer and that PSC and CSI are distinct entities was barred on this ground.
• Rule 45 and Questions of Fact — In petitions for review under Rule 45, only questions of law must be raised, and the Supreme Court is not a trier of facts, a doctrine that applies with greater force in labor cases. In exceptional cases, however, the Court may probe and resolve factual issues when the Labor Arbiter and the NLRC come up with conflicting positions, as occurred here.

• "To constitute abandonment, two elements must concur, to wit: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt acts." — This is the Court's canonical formulation of the requisites of abandonment, the ratio decidendi for the finding that respondent was illegally dismissed.
• "We rule that respondent is a project employee. His appointment letter showed that he was hired as transit mixer driver for the Concrete Solutions Inc. (CSI) – Batching Plant Project for the period from June 28, 2000 until June 23, 2001." — This passage establishes the Court's finding of project employment, which controlled the relief awarded and led to the deletion of the reinstatement order.
• "Considering that respondent was dismissed prior to the expiration of the duration of his employment and without a valid or just cause, his termination was therefore illegal. However, respondent could no longer be reinstated since the project he was assigned to was already completely finished." — This states the rule on the relief available to an illegally dismissed project employee whose project has been completed, the basis for awarding salary for the unexpired portion.
• "The settled rule is that issues not raised or ventilated in the court a quo cannot be raised for the first time on appeal as to do so would be offensive to the basic rules of fair play and justice." — This states the procedural doctrine barring petitioners' belated claim that only PSC was respondent's employer.

• Pure Blue Industries, Inc. vs. NLRC, 337 Phil. 710, 717 (1997) — Cited as the controlling precedent for the two elements of abandonment and the rule that abandonment is a matter of intention not lightly presumed from equivocal acts.
• Hodieng Concrete Products vs. Emilia, G.R. No. 149180, February 14, 2005, 451 SCRA 249 — Cited for the rule that there must be clear proof of deliberate and unjustified intent to sever the employer-employee relationship, the operative act being the employee's ultimate act of putting an end to his employment.
• Samarca vs. Arc-Men Industries, Inc., 459 Phil. 506, 516 (2003) — Cited for the rule that mere absence or failure to report for work is not tantamount to abandonment, and that failure to report for work after a notice to return has been served does not necessarily constitute abandonment.
• New Ever Marketing, Inc. vs. Court of Appeals, G.R. No. 140555, July 14, 2005, 463 SCRA 284, 296 — Cited for the rule that the filing of a complaint for illegal dismissal with a prayer for reinstatement is proof enough of the employee's desire to return to work, negating the employer's charge of abandonment.
• D.M. Consunji, Inc. vs. NLRC, 401 Phil. 635, 639 (2000) — Cited for the definition of a project employee under Article 280 of the Labor Code and the rule that the length of service is not the controlling test of employment tenure.
• R.P. Dinglasan Construction, Inc. vs. Atienza, G.R. No. 156104, June 29, 2004, 433 SCRA 263, 271 (2004) — Cited for the rule that issues not raised or ventilated in the court a quo cannot be raised for the first time on appeal.
• Judric Canning Corporation vs. Inciong — Cited in the Court of Appeals' ruling, quoted with approval, for the proposition that it would be illogical for an employee to abandon his work and then immediately file an action seeking his reinstatement.

• Article 280, Labor Code — Defines regular and casual employment and classifies as project employees those whose employment has been fixed for a specific project or undertaking, the completion or termination of which has been determined at the time of the engagement of the employee, or where the work or services to be performed is seasonal in nature and the employment is for the duration of the season. The Court applied this provision in holding that respondent was a project employee, his appointment letter having fixed his employment for the period from June 28, 2000 until June 23, 2001, which in turn limited his relief to the salary for the unexpired portion of his contract.

• Presbitero J. Velasco, Jr. (Chairperson)
• Roberto A. Abad
• Jose Catral Mendoza
• Marvic Mario Victor F. Leonen