G.R. No. 220928. August 30, 2017

FIRST DIVISION: [G.R. No. 220928, August 30, 2017] FISHER SECURITY AGENCY/ALEXANDER ARNADO/ALCIO ARNAN V. GENILIE D. MEDEZ.

In this Petition for Review on Certiorari under Rule 45, petitioners assail the Decision dated December 23, 2014[1] and Resolution dated September 2, 2015[2] of the Court of Appeals-Cebu City (CA) in CA-G.R. SP No. 06767.

The antecedent facts are as follows:

Respondent Genilie D. Medez (Genilie) alleged that he was hired by petitioner Fisher Security Agency (FSA) as a security guard sometime in March 1997. On January 31, 2010, he was placed on floating status and was not given an assignment for more than six months, which allegedly amounted to constructive dismissal.[3]

For its part, FSA claimed that on February 18, 2009, it entered into an Agreement for Security Services with the University of San Carlos (USC) which expired on January 31, 2010. On October 12, 2009, FSA issued Office Order No. 10-004-09[4] directing Genilie to render security duties at USC.[5]

Later on, USC no longer renewed its security service agreement with FSA. As a result, FSA had to pull out the security guards assigned to USC, including Genilie. FSA then issued Office Order No. 02-0111-10[6] instructing the security guards to report for possible posting with other clients.[7]

Meanwhile, Genilie was placed in FSA's work-pool advising him to wait for his next assignment.[8]

On June 5 2010, FSA allegedly informed Genilie through text message that he would be detailed to its client, Carland Caltex. According to FSA, Genilie refused to report to his assignment claiming that he was not interested and that he was going home to his province. FSA considered Genilie's act as an unjustifiable refusal and willful disobedience to a lawful order of an employer. This prompted FSA to issue Memorandum Order No. 005-060710[9] with a photocopy of Registry Receipt No. 7013 dated June 7, 2010 to Genilie, requiring him to explain his refusal to be detailed at Carland Caltex and his failure to report to FSA's office.[10]

Genilie denied that he ever texted or received any text message from FSA regarding the Carland Caltex appointment. He, likewise, denied receiving the memorandum order.[11] To prove this, Genilie presented a certification from the post-master of Lapu-Lapu that his office did not receive any registered letter with Registry Receipt No. 7013.

On August 26, 2010, Genilie filed a complaint for illegal dismissal before the Regional Arbitration Branch VII, Cebu City against FSA.

The Labor Arbiter (LA) rendered a decision[12] in Genilie's favor, declaring that he was constructively dismissed. The LA ordered FSA to pay Genilie the total amount of PhP 168,000 inclusive of backwages and separation pay. The National Labor Relations Commission (NLRC) affirmed the LA's decision, but modified the same as to the amount of backwages and directed FSA to pay Genilie the amount of PhP204,000[13].

FSA moved for reconsideration of the NLRC decision and filed supplemental arguments attaching therewith additional evidence, i.e., a certification[14] issued by the Firearms, Explosive/Security Agencies & Guard Supervisory Section (FESAGSS) of the Police Regional Office 7. The document was submitted to show that Genilie never renewed his security guard license which expired on June 25, 2010 or four months and 25 days from February 1, 2010, the day Genilie was considered on floating status. FSA argued that Genilie's non-renewal of his security guard license showed his lack of intention to be deployed and reassigned as a security guard.[15]

On November 29, 2011, the NLRC issued a resolution[16] overturning its previous decision by dismissing Genilie's claim for constructive dismissal.

Genilie moved for the reconsideration of the NLRC's resolution, but the same was denied in the NLRC's resolution dated January 31, 2012. He then filed a petition for certiorari with the CA.

On December 23, 2014, the CA rendered its assailed decision which reversed and set aside the NLRC's resolutions dated November 29, 2011 and January 31, 2012, respectively. The CA reinstated the LA's decision dated March 2, 2011.

Its motion for reconsideration[17] having been denied in the CA's resolution[18] dated September 2, 2015, FSA filed the instant petition.

In its petition, FSA avers that the CA erred in: (1) failing to give weight to the pieces of evidence it adduced; and (2) finding FSA guilty of constructive dismissal solely on the basis of Genilie's unsubstantiated allegations.[19]

The petition lacks merit.

FSA's insistence that the CA should have given evidentiary value to its belatedly filed FESAGSS Certification is unavailing.

First, "[c]oncomitant to a liberal application of the rules of procedure should be an effort on the part of the party invoking liberality to at least promptly explain its failure to comply with the rules. Indeed, technical rules of procedure are not designed to frustrate the ends of justice. These are provided to effect the prompt, proper, and orderly disposition of cases and thus effectively prevent the clogging of court dockets. Utter disregard of these rules cannot justly be rationalized by harking on the policy of liberal construction."[20]

"In labor cases, strict adherence with the technical rules is not required. This liberal policy, however, should still conform with the rudiments of equitable principles of law".[21]"For instance, belated submission of evidence may only be allowed if the delay is adequately justified and the evidence is clearly material to establish the party's cause".[22]

Here, FSA did not give any reason or explanation citing extraordinary circumstances for its failure to submit the FESAGSS Certification during the filing of its position paper, the earliest possible opportunity for it to do so. It only furnished the NLRC the FESAGSS Certification after it had received an adverse ruling by the LA and the NLRC.

As correctly pointed out by the CA:
x x x private respondent did not cite any reason why it had failed to present earlier the certification from FESAGSS. Private respondent had time to procure such evidence from the very start. Only after the decision was made by the labor arbiter and NLRC (before it reversed itself), did such evidence come out and was presented by public respondent. To our mind, the belated submission of the said certification without any valid explanation casts doubt on its credibility, especially so when it was available at the time when petitioner filed his complaint. Private respondent could have easily presented the certification from FESAGGS regarding petitioner's expired license in the proceedings before the labor arbiter for close evaluation. Why it was not presented at the first opportunity is a material question to ascertain if private respondent's evidence is credible or that it may have just been fabricated for the purpose of appeal.[23]
Second, contrary to FSA's claim, the FESAGSS Certification was not properly identified and authenticated during the entire proceedings before the LA and the NLRC, precisely because it was belatedly submitted upon the filing of FSA's motion for reconsideration challenging the adverse ruling of the NLRC.

We cannot, likewise, subscribe to FSA's allegation that Genilie failed to substantiate his averment that he was constructively dismissed.

For a security guard who is on "'floating''' status to be considered reinstated, there must be a work assignment or at least an offer, given to him within the six-month period from the time he was on "temporary off-detail”[24] and not merely the promise or possibility of employment. "Due to the grim economic consequences [upon a security guard who is placed on a "floating" status], the employer should bear the burden of proving that there are no posts available to which the employee temporarily out of work can be assigned".[25] This, FSA failed to discharge.Notwithstanding its allegation that Genilie refused to report to his assignment after FSA sent him a text message informing him that he would be detailed to Carland Caltex; and, its subsequent issuance of Memorandum Order No. 005-060710 requiring Genilie to explain his refusal to be detailed, this Court is not convinced that said directives, at the very least, give a semblance of an offer of a valid reassignment.

Granting, however, that a directive was indeed issued, it served no purpose unless the intended recipient, like Genilie in this case, was informed of such.[26] "The employer cannot simply conclude that an employee is ipso facto notified [of an assignment] when there is no evidence to indicate [that the employee had knowledge that he should report for work]".[27]

We quote with approval the following excerpt from the LA's decision on this matter, thus:

There is no credible evidence to establish that respondent security agency provided a subsequent post to complainant during the 6-months period. In fact, respondents did not bother to present complainant's Duty Detail Order which directed him to report to its client, Carland Caltex. Moreover, assuming that the Memorandum dated June 7, 2010 was sent to complainant by registered mail on June 10, 2010 respondents should have subsequently notified him of the action taken after complainant allegedly disregarded the said Memorandum.[28]

We need not belabor FSA's insistence that Genilie abandoned his work, for indeed this issue has been considered and found without merit in the decision now assailed.

WHEREFORE, the petition is DENIED. The Decision dated December 23, 2014 and Resolution dated September 2, 2015 of the Court of Appeals-Cebu City (CA-Cebu) in CA-G.R. SP No. 06767 are AFFIRMED in toto. (Sereno, C.J., on leave; Leonardo-De Castro, J., on official leave.)

SO ORDERED.


[1] Penned by Associate Justice Marilyn B. Lagura-Yap, with Associate Justices Gabriel T. Ingles and Pamela Ann Abella Maxino, concurring; rollo, pp. 54-64.

[2] Id. at 83-87.

[3] See CA Decision: id. at 55.

[4] Id. at 55.

[5] Id.

[6] Id. at 124.

[7] Id. at 55-56.

[8] Id. at 56.

[9] Id. at 125.

[10] Id. at 56.

[11] Id.

[12] Id. at 30-39.

[13] Id.

[14] Id. at 123.

[15] Id. at 57.

[156]Id. at 47-52.

[17] Id. at 65-82.

[18] Id. at 83-87.

[19] Id. at 10.

[20] Daaco v. Yu, 761 Phil. 161, 172 (2015).

[21] Misamis Oriental II Electric Service Cooperative (MORESCO II) v. Virgilio M. Cagalawan, 694 Phil. 268, 270 (2012), citing Spic N' Span Services Corporation v. Paje, 643 Phil. 474, 481-482(2010).

[22] Id. at 270-271, citing Anabe v. Asian Construction (ASIAKONSTRUKT), et al, 623 Phil. 857, 863 (2009).

[23] Rollo, p. 60.

[24] MegaForce Security and Allied Services, Inc., and Manalo v. Lactao and NLRC, 581 Phil. 100, 106 (2008).

[25]Nationwide Security and Allied Services, Inc. v. Valderama, 659 Phil. 362, 370 (2011).

[26] Alert Security and Investigation Agency, Inc. and/or Dasig v. Pasawilan, 673 Phil. 291, 304- 305(2011).

[27] Id. at 304-305.

[28] Rollo, p. 107.

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