MZR Industries, Marilou R. Quiroz and Lea Timbal vs. Majen Colambot

In illegal dismissal cases, the employee must first establish by substantial evidence the fact of dismissal before the employer bears the burden of proving that the termination was valid; if there is no dismissal, there can be no question as to the legality or illegality thereof. Mere failure to report for work after suspension is not abandonment absent clear proof of intent to sever the employment relationship.

MZR Industries, through owner and Vice-President for Finance and Marketing Marilou R. Quiroz, employed Majen Colambot as a messenger; Lea Timbal was MZR’s Administrative Manager. The dispute concerns the employment relationship between Colambot and MZR and the company’s disciplinary measures over his work performance.

On February 8, 2000, Marilou Quiroz, Owner and Vice-President for Finance and Marketing of MZR Industries, hired Majen Colambot as a messenger. His duties included field, messengerial, and other liaison work. Beginning 2002, Colambot’s work performance started to deteriorate. Petitioners issued several memoranda to Colambot for habitual tardiness, negligence, and violations of office policies. He was also given written warnings for insubordination committed on August 27, 2003 and September 11-12, 2003; on September 16, 2003 for negligence caused by careless handling of confidential office documents; on September 22, 2004 for leaving his post without proper turnover; and on October 4, 2004 for insubordination.

Petitioners claimed that despite written warnings for repeated tardiness and insubordination, Colambot failed to mend his ways. Hence, in a Memorandum dated October 25, 2004 issued by petitioner Lea Timbal, MZR’s Administrative Manager, Colambot was given a notice of suspension for insubordination and negligence. Again, in a Memorandum dated November 25, 2004, Colambot was suspended from November 26, 2004 until December 6, 2004 for insubordination. Allegedly, Colambot disobeyed and left the office despite clear instructions to stay in the office because there was an important meeting in preparation for a very important activity the following day.

Petitioners claimed they waited for Colambot to report back for work on December 7, 2004, but they never heard from him anymore. Later, petitioners were surprised to find out that Colambot had filed a complaint for illegal suspension, underpayment of salaries, overtime pay, holiday pay, rest day, service incentive leave and 13th month pay. On December 16, 2004, the complaint was amended to illegal dismissal, illegal suspension, underpayment of salaries, holiday pay, service incentive pay, 13th month pay and separation pay.

For his part, Colambot narrated that he worked as a messenger for petitioners since February 2000. That on November 2004, he was directed to take care of the processing of a document in Roxas Boulevard, Pasay City. When he arrived at the office around 6 to 7 o’clock in the evening, he looked for petitioner Quiroz to give the documents. The latter told him to wait for her for a while. When respondent finally had the chance to talk to Quiroz, she allegedly told him that she is dissatisfied already with his work performance. Afterwards, Colambot claimed that he was made to choose between resigning from the company or the company will be the one to terminate his services. He said he refused to resign. Colambot alleged that Quiroz made him sign a memorandum for his suspension, from November 26 to December 6, 2004. After affixing his signature, Quiroz told him that effective December 7, 2004, he is already deemed terminated. Later, on December 2, 2004, respondent went back to the company to look for Timbal to get his salary. He claimed that Timbal asked him to turn over his company I.D.

Petitioners, however, insisted that while Colambot was suspended due to insubordination and negligence, they maintained that they never terminated Colambot’s employment. They added that Colambot’s failure to report for work since December 7, 2004 without any approved vacation or sick leave constituted abandonment of his work, but they never terminated his employment. Petitioners further emphasized that even with Colambot’s filing of the complaint against them, his employment with MZR has not been terminated. Colambot, meanwhile, argued that contrary to petitioners’ claim that he abandoned his job, he claimed that he did not report back to work after the expiration of his suspension on December 6, 2004, because Quiroz told him that his employment was already terminated effective December 7, 2004.

The Labor Arbiter found no abandonment because there was no deliberate intent on the part of Colambot to sever the employer-employee relationship and noted that Colambot should have been notified to return back to work. The NLRC found that Colambot abandoned his work due to his refusal to report for work after his suspension and that the failure of MZR to notify Colambot to return back to work is not tantamount to actual dismissal. The Court of Appeals found no abandonment and no written notices of dismissal.

• No Dismissal: Petitioners argued that they did not terminate the employer-employee relationship with Colambot.
• Lack of Evidence of Termination: Petitioners maintained that other than Colambot’s self-serving and unverified narration of facts, he failed to present any document showing that he was terminated from work.
• Abandonment: Petitioners asserted that Colambot abandoned his work when he failed to report back to work without an approved vacation or sick leave, thus, he is not entitled to an award of separation pay and backwages.
• Court of Appeals Error: Petitioners contended that the Court of Appeals erred in ruling that Colambot was illegally dismissed from the service and in ruling that he is entitled to separation pay and backwages.

• Illegal Dismissal: Respondent maintained that he was orally terminated from his work effective December 7, 2004, after Quiroz expressed dissatisfaction with his work performance, made him choose between resigning and being terminated, and told him he was deemed terminated after he signed the suspension memorandum.
• No Abandonment: Respondent argued that contrary to petitioners’ claim that he abandoned his job, he did not report back to work after the expiration of his suspension on December 6, 2004 because Quiroz told him that his employment was already terminated effective December 7, 2004.

• Illegal Dismissal: Whether the Court of Appeals erred in ruling that Colambot was illegally dismissed from service.
• Abandonment: Whether Colambot abandoned his work, such that no illegal dismissal or entitlement to relief exists.
• Separation Pay and Backwages: Whether the Court of Appeals erred in ruling that Colambot is entitled to separation pay and backwages.

• Illegal Dismissal: No. The Court of Appeals erred in finding illegal dismissal; Colambot failed to establish by substantial evidence that he was dismissed, and the suspension notice directed him to return to work on December 7, 2004. Without dismissal, there is no question as to the legality or illegality thereof.
• Abandonment: No. Mere failure to report after suspension did not constitute abandonment; petitioners failed to prove intent to sever and overt acts, and the filing of an illegal dismissal complaint negated abandonment.
• Separation Pay and Backwages: No. Because there was neither dismissal nor abandonment, the remedy would be reinstatement without backwages; but reinstatement being no longer applicable due to strained relations and Colambot’s new employment, each party must bear his or her own loss. The NLRC dismissal was reinstated.

• Illegal Dismissal: While the employer bears the burden of proving that termination was for a valid or authorized cause in illegal dismissal cases, the employee must first establish by substantial evidence the fact of dismissal from service. If there is no dismissal, there can be no question as to the legality or illegality thereof. Colambot’s claim of verbal termination was unsubstantiated; no evidence showed he was dismissed or prevented from returning to work. The Notice of Suspension dated November 25, 2004 showed a six-day suspension and a specific instruction to report back on December 7, 2004; its subject, wordings, and content were a clear-cut notice of suspension, not termination. The warning of termination was conditioned on failure to improve behavior, and no wordings implied actual or constructive dismissal. His general allegation of oral dismissal against the clear notice he signed warranted the conclusion that there was no dismissal. Machica vs. Roosevelt Services Center, Inc. sustained the employer’s denial against the employees’ categorical assertion of illegal dismissal, and Abad vs. Roselle Cinema held that the employer’s substantial evidence that it had not terminated the employee should not be ignored on the pretext that the employee would not have filed a complaint if he had not really been dismissed. Petitioners could not be blamed for failing to order Colambot to return to work because he immediately filed the complaint for illegal dismissal on December 16, 2004, just a few days after he was supposed to report back on December 7, 2004.
• Abandonment: To constitute abandonment of work, two elements must be present: first, the employee must have failed to report for work or must have been absent without valid or justifiable reason; and second, there must have been a clear intention on the part of the employee to sever the employer-employee relationship manifested by some overt act. Mere absence or failure to report for work is not enough to amount to abandonment of work; there must be a concurrence of the intention to abandon and some overt acts from which an employee may be deduced as having no more intention to work. The burden of proof to show a deliberate and unjustified refusal of the employee to resume employment without any intention of returning rests on the employer. Petitioners failed to present any evidence tending to show Colambot’s intent to abandon his work. The filing of a complaint for illegal dismissal is inconsistent with abandonment of employment; an employee who takes steps to protest his dismissal cannot logically be said to have abandoned his work. The Court of Appeals was correct on this point.
• Separation Pay and Backwages: Because there was no evidence of dismissal and no intent on the part of Colambot to abandon his work, the remedy is reinstatement but without backwages. However, considering that reinstatement is no longer applicable due to the strained relationship between the parties and that Colambot already found another employment, each party must bear his or her own loss, placing them on equal footing. In a case where the employee’s failure to work was occasioned neither by his abandonment nor by a termination, the burden of economic loss is not rightfully shifted to the employer. Thus, the Court of Appeals’ award of separation pay and backwages was reversed, and the NLRC ruling was reinstated.

• Burden of proof in illegal dismissal — In illegal dismissal cases, the employer bears the burden of proving that the termination was for a valid or authorized cause, but the employee must first establish by substantial evidence the fact of dismissal from service. If there is no dismissal, there can be no question as to the legality or illegality thereof. The Court applied this doctrine because Colambot failed to prove by substantial evidence that he was dismissed; his claim of oral termination was self-serving, conjectural, and of no probative value.
• Abandonment of work — To constitute abandonment, two elements must concur: (1) the employee must have failed to report for work or must have been absent without valid or justifiable reason; and (2) there must have been a clear intention on the part of the employee to sever the employer-employee relationship manifested by some overt act. Mere absence or failure to report for work is not enough. The burden of proof to show a deliberate and unjustified refusal to resume employment rests on the employer, and the filing of a complaint for illegal dismissal is inconsistent with abandonment. The Court applied this doctrine because petitioners failed to present evidence of Colambot’s intent to abandon, and his illegal dismissal complaint negated abandonment.
• No dismissal, no illegal dismissal — If there is no dismissal, there can be no question as to the legality or illegality of the termination. The Court applied this doctrine because the evidence did not establish a prima facie case that Colambot was dismissed; the suspension notice directed him to return to work and contained no actual or constructive dismissal.
• Remedy where failure to work is neither abandonment nor termination — Where the employee’s failure to work was occasioned neither by abandonment nor by termination, the remedy is reinstatement but without backwages; the burden of economic loss is not rightfully shifted to the employer. If reinstatement is no longer applicable due to strained relations and the employee’s new employment, each party must bear his or her own loss. The Court applied this doctrine because Colambot neither abandoned his work nor was dismissed, but reinstatement was no longer practicable.

• "While we recognize the rule that in illegal dismissal cases, the employer bears the burden of proving that the termination was for a valid or authorized cause, in the present case, however, the facts and the evidence do not establish a prima facie case that the employee was dismissed from employment. Before the employer must bear the burden of proving that the dismissal was legal, the employee must first establish by substantial evidence the fact of his dismissal from service. If there is no dismissal, then there can be no question as to the legality or illegality thereof." — This passage states the ratio decidendi on the burden of proof: the employer’s burden to justify termination arises only after the employee first proves dismissal by substantial evidence.
• "In the instant case, other than Colambot's failure to report back to work after suspension, petitioners failed to present any evidence which tend to show his intent to abandon his work. It is a settled rule that mere absence or failure to report for work is not enough to amount to abandonment of work. There must be a concurrence of the intention to abandon and some overt acts from which an employee may be deduced as having no more intention to work." — This passage defines the Court’s abandonment doctrine and explains why Colambot’s failure to report after suspension did not amount to abandonment.
• "These circumstances, taken together, the lack of evidence of dismissal and the lack of intent on the part of the respondent to abandon his work, the remedy is reinstatement but without backwages." — This passage states the remedy where the employee’s failure to work is caused neither by dismissal nor abandonment.
• "Verily, in a case where the employee's failure to work was occasioned neither by his abandonment nor by a termination, the burden of economic loss is not rightfully shifted to the employer; each party must bear his own loss." — This passage explains why the Court did not award backwages or separation pay and instead placed the parties on equal footing.

• Machica vs. Roosevelt Services Center, Inc., 523 Phil. 199 (2006) — Followed for the rule that one who alleges a fact has the burden of proving it; the employer’s burden of proof in illegal dismissal cases does not apply where the employer denies having dismissed the employee, and the employee must prove dismissal by clear, positive, and convincing evidence.
• Abad vs. Roselle Cinema, 520 Phil. 135, 146 (2006) — Followed for the rule that the employer’s substantial evidence that it had not terminated the employee should not be ignored on the pretext that the employee would not have filed a complaint for illegal dismissal if he had not really been dismissed.
• Exodus International Construction Corporation vs. Biscocho, G.R. No. 166109, February 23, 2011, 644 SCRA 76 — Followed for the rule that absent any showing of an overt or positive act proving dismissal, the employee’s claim of illegal dismissal cannot be sustained; also cited for the remedy of reinstatement without backwages and for the principle that each party must bear his or her own loss where failure to work is neither abandonment nor termination.
• Samarca vs. Arc-Men Industries, Inc., 459 Phil. 506, 515 (2003) — Followed for the two elements of abandonment: failure to report for work or absence without valid or justifiable reason, and a clear intention to sever the employer-employee relationship manifested by an overt act.
• Aliten vs. U-Need Lumber & Hardware, G.R. No. 168931, September 12, 2006, 501 SCRA 577, 586 — Followed for the settled rule that mere absence or failure to report for work is not enough to amount to abandonment; there must be a concurrence of the intention to abandon and some overt acts.
• Leonardo vs. NLRC, 389 Phil. 118, 128 (2000) — Followed for the principle that in a case where the employee’s failure to work was occasioned neither by abandonment nor by termination, the burden of economic loss is not rightfully shifted to the employer; each party must bear his or her own loss.
• Philippine Rural Reconstruction Movement vs. Pulgar, G.R. No. 169227, July 5, 2010, 623 SCRA 244, 256 — Cited for the rule that before the employer must bear the burden of proving that the dismissal was legal, the employee must first establish by substantial evidence the fact of dismissal from service.

• Rule 45, Rules of Court — The procedural basis for petitioners’ petition for review on certiorari before the Supreme Court seeking reversal of the Court of Appeals’ Decision and Resolution.
• Rule 65, Rules of Court — The procedural basis for Colambot’s petition for certiorari before the Court of Appeals, which raised grave abuse of discretion as a ground against the NLRC Decision and Resolution.
• Section 13, Article VIII, Constitution — Cited in the Chief Justice’s certification that the conclusions in the Decision had been reached in consultation before the case was assigned to the writer of the opinion of the Court’s Division.

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