Case Digest: Barroga v. Data Center College & Bactad

G.R. No. 174158 : June 27, 2011




On November 11, 1991, William Barroga was employed as an Instructor in Data Center College Laoag City branch in Ilocos Norte. On June 6, 1992, he was transferred University of Northern Philippines (UNP) in Vigan, Ilocos Sur where the school had a tie-up program. Petitioner was informed that in addition to his monthly salary, a P1,200.00 allowance for board and lodging during his stint as instructor in UNP-Vigan would be given. In 1994, he was recalled to Laoag campus. On October 3, 2003, petitioner he was again transferred to Data Center College Bangued, Abra branch as Head for Education/Instructor due to an urgent need for an experienced officer and computer instructor thereat. Petitioner declined to accept his transfer to Abra citing the deteriorating health condition of his father and the absence of additional remuneration to defray expenses for board and lodging.

On November 10, 2003, petitioner filed a Complaint for constructive dismissal against respondents. Petitioner alleged that his proposed transfer to Abra constitutes a demotion in rank and diminution in pay and would cause personal inconvenience and hardship. He argued that although he was being transferred to Abra branch supposedly with the same position he was then holding in Laoag branch as Head for Education, he later learned through a Memorandumfrom the administrator of Abra branch that he will be re-assigned merely as an instructor, thereby relegating him from an administrative officer to a rank-and-file employee. Moreover, the elimination of his allowance for board and lodging will result to an indirect reduction of his salary which is prohibited by labor laws.

For their part, respondents claimed that they were merely exercising their management prerogative to transfer employees for the purpose of advancing the school interests. They argued that petitioner refusal to be transferred to Abra constitutes insubordination. They claimed that petitioner appointment as instructor carries a proviso of possible re-assignments to any branch or tie-up schools as the school necessity demands. Respondents argued that petitioner designation as Head for Education in Laoag branch was merely temporary and that he would still occupy his original plantilla item as instructor at his proposed assignment in Abra branch. Respondents denied liability to petitioner monetary claims.

The Labor Arbiter rendered a Decision dismissing the Complaint for lack of merit. The NLRC affirmed the LA decision but it found petitioner to be entitled to overload honorarium and ordered Data Center College of the Philippines, to pay the complainant the sum of P73,730.39 representing overload honorarium.

Both parties eventually filed petitions for certiorari before the CA. Respondentspetition for certiorari was docketed as CA-G.R. SP No. 94205, which is not subject of the instant review. On the other hand, petitioner filed on April 7, 2006, a Petition for Certiorari with the CA docketed as CA-G.R. SP No. 93991 assailing the NLRC finding that no constructive dismissal existed. Realizing his failure to attach the requisite affidavit of service of the petition upon respondents, petitioner filed on April 27, 2006, an Ex-Parte Manifestation and Motion to admit the attached affidavit of service and registry receipt in compliance with the rules.

On May 15, 2006, the CA dismissed the petition in CA-G.R. SP No. 93991 for failure to state material dates as to when the petitioner received the assailed decision dated August 25, 2005 and when he filed a Motion for Reconsideration thereof and for failing to attach the initiatory pleadings and the respondentsMotion for Reconsideration of the Decision dated August 25, 2005. Petitioner motion for reconsideration was likewise dismissed.

ISSUE: Whether or not the Court of Appeals committed grave abuse of discretion in not giving due course to the petition despite petitioner substantial compliance with the requisite formalities?

HELD: The decision of the Court of Appeal is set aside.


The three material dates which should be stated in the petition for certiorari under Rule 65 are the dates when the notice of the judgment was received, when a motion for reconsideration was filed and when the notice of the denial of the motion for reconsideration was received. These dates should be reflected in the petition to enable the reviewing court to determine if the petition was filed on time. Indeed, petitioner petition before the CA stated only the date of his receipt of the NLRC Resolution denying his motion for partial reconsideration. It failed to state when petitioner received the assailed NLRC Decision and when he filed his partial motion for reconsideration. However, this omission is not at all fatal because these material dates are reflected in petitioner Partial Motion for Reconsideration attached as Annex "N" of the petition. In Acaylar, Jr. v. Harayo, the Court held that failure to state these two dates in the petition may be excused if the same are evident from the records of the case. It was further ruled by this Court that the more important material date which must be duly alleged in the petition is the date of receipt of the resolution of denial of the motion for reconsideration. In the case at bar, petitioner has duly complied with this rule.


Petitioner failure to attach respondent motion for reconsideration to the assailed NLRC decision is not sufficient ground for the CA to outrightly dismiss his petition. The issue that was raised in respondentsmotion for reconsideration is the propriety of the NLRC grant of overload honorarium in favor of petitioner. This particular issue was not at all raised in petitioner petition for certiorari with the CA, therefore, there is no need for petitioner to append a copy of this motion to his petition. Besides, as already mentioned, the denial of respondentsmotion for reconsideration has been assailed by respondents before the CA docketed as CA-G.R. SP No. 94205. At any rate, the Rules do not specify the documents which should be appended to the petition except that they should be relevant to the judgment, final order or resolution being assailed. Petitioner is thus justified in attaching the documents which he believed are sufficient to make out a prima facie case.


Despite the mistake of the CA in instantly dismissing the case, herein instant petition still merits dismissal based on substantial grounds. After a careful review of the records and the arguments of the parties, there is no sufficient basis to conclude that petitioner re-assignment amounted to constructive dismissal.

Constructive dismissal is quitting because continued employment is rendered impossible, unreasonable or unlikely, or because of a demotion in rank or a diminution of pay. It exists when there is a clear act of discrimination, insensibility or disdain by an employer which becomes unbearable for the employee to continue his employment.Petitioner alleges that the real purpose of his transfer is to demote him. Petitioner further argues that his re-assignment will entail an indirect reduction of his salary or diminution of pay considering that no additional allowance will be given to cover for board and lodging expenses. He claims that such additional allowance was given in the past and therefore cannot be discontinued and withdrawn without violating the prohibition against non-diminution of benefits.

These allegations are bereft of merit.

Petitioner was originally appointed as instructor in 1991 and was given additional administrative functions as Head for Education during his stint in Laoag branch. He did not deny having been designated as Head for Education in a temporary capacity for which he cannot invoke any tenurial security. Hence, being temporary in character, such designation is terminable at the pleasure of respondents who made such appointment.Moreover, respondentsright to transfer petitioner rests not only on contractual stipulation but also on jurisprudential authorities. The Labor Arbiter and the NLRC both relied on the condition laid down in petitioner employment contract that respondents have the prerogative to assign petitioner in any of its branches or tie-up schools as the necessity demands. In any event, it is management prerogative for employers to transfer employees on just and valid grounds such as genuine business necessity.

Petitioner contention that his re-assignment was tainted with bad faith cannot be given credit. As a matter of fact, respondents suggested that petitioner take an indefinite leave of absence to attend to his ailing father. Also, during the time when respondents directed all its administrative officers to submit courtesy resignations, petitioner letter of resignation was not accepted. This bolsters the fact that respondents never intended to get rid of petitioner. In fine, petitioner assertions of bad faith on the part of respondents are purely unsubstantiated conjectures.

The Court agrees with the Labor Arbiter that there was no violation of the prohibition on diminution of benefits. Indeed, any benefit and perks being enjoyed by employees cannot be reduced and discontinued, otherwise, the constitutional mandate to afford full protection to labor shall be offended.But the rule against diminution of benefits is applicable only if the grant or benefit is founded on an express policy or has ripened into a practice over a long period which is consistent and deliberate.

Petitioner failed to present any other evidence that respondents committed to provide the additional allowance or that they were consistently granting such benefit as to have ripened into a practice which cannot be peremptorily withdrawn. Moreover, there is no conclusive proof that petitioner basic salary will be reduced as it was not shown that such allowance is part of petitioner basic salary. Hence, there will be no violation of the rule against diminution of pay enunciated under Article 100 of the Labor Code.