Canedo v. Kampilan (G.R. No.179326; July 31, 2013)


FACTS: Respondent agency hired petitioner as security guard on November 20, 1996 and assigned him at the Naga Power Barge 102 of the National Power Corporation (NPC) at Sigpit Load Ends, Lutopan, Toledo City.

For not wearing proper uniform while on duty as per report of Allan Alfafara (Alfafara) of the NPC, petitioner was suspended for a month effective May 8, 2003.

In a letter dated June 2, 2003, NPC informed respondent agency that it was no longer interested in petitioners services and thus requested for his replacement.

On June 17, 2003, petitioner requested respondent Arquiza to issue a certification in connection with his intended retirement effective that month.Thus, respondent Arquiza issued the Certificationdated June 25, 2003.

Five days later, petitioner filed before the Labor Arbiter a Complaint for illegal dismissal, illegal suspension and non-payment of monetary benefits against respondents.

Petitioner alleged that his suspension was without valid ground and effected without due process, hence, illegal. He claimed that Alfafaras report about his non-wearing of uniform was fabricated and ill-motivated because he declined Alfafaras invitation to convert to their religion. In fact, the roving inspector who checked the attendance of guards on duty does not have any report showing his commission of any infraction. Petitioner averred that he was suspended without being given the chance to explain his side.

Petitioner narrated that when he reported back to work after his one-month suspension, he was surprised to find out that he was already terminated from the service effective May 7, 2003 as shown by the June 25, 2003 Certification issued to him by respondent Arquiza. He then claimed to have been underpaid for services rendered and that he is entitled to holiday pay, rest day pay, night shift differential, service incentive leave pay, 13th month pay, retirement benefits, damages and attorneys fees.

Based on the June 25, 2003 Certification, the Labor Arbiter held that petitioner was illegally dismissed from the service. He also found petitioners prior suspension illegal and granted him all his monetary claims except for underpayment of wages.

Respondents filed a Memorandum of Appealbefore the NLRC arguing that the Labor Arbiter erred in concluding that petitioner was illegally dismissed based solely on the June 25, 2003 Certification. They contended that the said Certification is not sufficient to establish petitioners dismissal as such fact must be proven by direct evidence of actual dismissal. They also averred that the word "terminated" as used in the said Certification actually meant "pulled-out" and this can be construed from the following phrase "as per clients request." This position is strengthened by petitioners June 17, 2003 letter requesting for a Certification in connection with his intended retirement. At any rate, respondents explained that the subject Certification was only issued upon petitioners request in order to facilitate his application for entitlement to retirement benefits with the Social Security System (SSS). And the word "terminated", assuming its literal meaning, was only used in order to serve the purpose of the same, that is, to show SSS that petitioner is no longer in service.

Petitioner in his Appellees Memorandumregarded respondents averments as clear afterthoughts and prayed for the modification of the Labor Arbiters awards to include salary differential, night shift differential, rest day pay, 13th month pay and retirement benefits.

In a Decisiondated June 28, 2005, the NLRC initially affirmed with modification the Labor Arbiters Decision.

However, in resolving respondents Motion for Reconsideration,the NLRC reversed itself and set aside its earlier Decision. In a Resolutiondated October 20, 2005, it held that the June 25, 2003 Certification should be read in conjunction with the June 2, 2003 letter of NPC requesting for petitioners relief from his post. The NLRC noted that it is common practice for clients of security agencies to demand replacement of any security guard assigned to them but cannot demand their dismissal from the employ of the security agency. And from the time petitioner was relieved from his NPC posting, he was considered on a floating status which can last for a maximum period of six months. Moreover, the NLRC opined that petitioners intention to retire as shown by his June 17, 2003 letter negated his claim of termination. Nevertheless, it maintained that petitioner was suspended without being notified of his infraction. Thus, he should be paid his salary during the period of his illegal suspension. The dispositive portion of the said Resolution reads:Petitioner filed an Urgent Motion for Reconsideration,which was, however, denied in a Resolutiondated December 15, 2005. Hence, he sought recourse to the CA via a Petition for Certiorari.

The CA, in a Decisiondated January 25, 2007, denied the Petition after it found no grave abuse of discretion on the part of the NLRC.

In view of the above, the CA concluded that petitioner was merely placed on temporary "off-detail" which is not equivalent to dismissal. However, like the NLRC, the CA found that petitioner was deprived of due process when he was suspended and thus affirmed his entitlement to his salary during the period of suspension. It also affirmed the awards for holiday pay and service incentive leave pay as well as the deduction therefrom ofP10,000.00 representing petitioners cash advance.

As petitioners Motion for Reconsiderationwas likewise denied by the CA in its Resolutiondated July 25, 2007, he now comes to this Court through this Petition for Review on Certiorari.

ISSUE: Was petitioner dismissed from service?

At the outset, the Court notes that this is a question of fact which cannot be raised in a Petition for Review on Certiorari under Rule 45. However, when there is no uniformity in the factual findings of the tribunals below, as in this case, this Court is resolved to again examine the records as well as the evidence presented to determine which findings conform with the evidentiary facts.

In illegal dismissal cases, "while the employer bears the burden to prove that the termination was for a valid or authorized cause, the employee must first establish by substantial evidence the fact of dismissal from service." The burden of proving the allegations rests upon the party alleging and the proof must be clear, positive and convincing.Thus, in this case, it is incumbent upon petitioner to prove his claim of dismissal.

Petitioner relies on the word "terminated" as used in the June 25, 2003 Certification issued him by respondent Arquiza and argues that the same is a clear indication that he was dismissed from service. We are, however, not persuaded. Petitioner cannot simply rely on this piece of document since the fact of dismissal must be evidenced by positive and overt acts of an employer indicating an intention to dismiss.Here, aside from this single document, petitioner proffered no other evidence showing that he was dismissed from employment. While it is true that he was not allowed to report for work after the period of his suspension expired, the same was due to NPCs request for his replacement as NPC was no longer interested in his services. And as correctly argued by respondents, petitioner from that point onward is not considered dismissed but merely on a floating status. "Such a floating status is lawful and not unusual for security guards employed in security agencies as their assignments primarily depend on the contracts entered into by the agency with third parties."

Countering such status, petitioner contends that even at present, he is still not given any new duties.A floating status can ripen into constructive dismissal only when it goes beyond the six-month maximum period allowed by law.In this case, petitioner filed the Complaint for illegal dismissal even before the lapse of the six-month period. Hence, his claim of illegal dismissal lacks basis. Moreover and as aptly observed by the NLRC, it was in fact petitioner who intended to terminate his relationship with respondents through his planned retirement. This is further bolstered by his prayer in his Complaint where he sought for separation pay and not for reinstatement.

At any rate, upon a close reading of the June 25, 2003 Certification, this Court is of the opinion that petitioner was not dismissed from service. The import of the said Certification is that petitioner was assigned in NPC from November 20, 1996 up to May 7, 2003 and that on May 7, 2003, respondents terminated his assignment to NPC upon the latters request. This is the correct interpretation based on the true intention of the parties as shown by their contemporaneous and subsequent acts and the other evidence on record as discussed above. Section 12 of Rule 130 of the Rules of Court states that in the construction and interpretation of a document, the intention of the parties must be pursued. Section 13 of the same Rule further instructs that the circumstances under which a document was made may be shown in order to ascertain the correct interpretation of a document.

To recap, petitioner was suspended effective May 8, 2003. On June 2, 2003, NPC requested for his replacement. He then intimated his desire to retire from service on June 17, 2003. These circumstances negate petitioners claim that he was terminated on May 7, 2003. Clearly, there is no dismissal to speak of in this case.

With respect to the additional benefits prayed for by the petitioner, suffice it to state that this Court cannot grant him such reliefs. "It is settled that a non-appellant cannot, on appeal, seek an affirmative relief."It was held that "a party cannot impugn the correctness of a judgment not appealed from by him, and while he may make counter-assignment of errors, he can do so only to sustain the judgment on other grounds but not to seek modification or reversal thereof for in such a case he must appeal."