Republic of the Philippines

SUPREME COURT
Manila

RAOLITO D. LEE, G.R. No. 54834

Petitioner, CA-G.R. SP No. 06578

- versus - NLRC VAC-04-005678-10

RAB VIII-10-05631-10
COURT OF APPEALS, Special
Former 19TH DIVISION, CEBU
CITY; LEYTE LUMBER YARD
& HARDWARE, INC. and ART
F. SO,
Respondents.

x------------------------------------x

PETITION FOR REVIEW

PETITIONER, by counsel, unto this Honorable Supreme Court most

respectfully states and pleads: THAT—

I. PRELIMINARY STATEMENT

1. This is a petition for review on CERTIORARI of the DECISION1 dated

17 January 2012, and RESOLUTION2 dated 12 November 2012 of the public
respondent Court of Appeals, Special Former 19 th Division, Cebu City, in CA-
G.R. SP No. 05182, which reversed and set aside the Decision3 dated 28 August
28 2009 and Resolution4 dated 26 February 2010 of the National Labor
Relations Commission, Fourth Division, Cebu City and reinstated the Decision5
dated 17 April 2009 of the Executive Labor Arbiter, dismissing petitioner’s
complaint for illegal dismissal, payment of separation pay, other money claims
and attorney’s fees due to lack of merit.

2. The impugned DECISION of the Honorable Court of Appeals, was

received by petitioner on 09 February 2012.

3. Petitioner seasonably filed his Motion for Reconsideration6 of the

17 January 2012 Decision on 23 February 2012. Thereafter, petitioner received on
1
Annex A – Decision of Court of Appeals, 19th Division, promulgated 17January 2012 (legible duplicate original)
2
Annex B – Resolution of Court of Appeals promulgated on 12 November 2012(legible duplicate original)
3
Annex C – Decision of NLRC, 4th Division, promulgated on August 28, 2009
4
Annex D – Resolution of NLRC, 4th Division, promulgated on February 26, 2010
5
Annex E – Decision of Executive Labor Arbiter dated April 17, 2009
6
Annex F – Motion for Reconsideration dated 23 February 2012
 2

28 November 2012 the impugned RESOLUTION denying the Motion for

Reconsideration, and has until 13 December 2012 within which to file his
Petition.

4. Petitioner filed on 7 December 2012 his Motion for Extension of

Time to file Petition for Review 7, praying for an extension of 30 days from
28 November 2012 or up to 28 December 2012 within which to file his
Petition for Review with this Honorable Court. Accordingly, this petition is filed
on time.

II. THE PARTIES

1. Petitioner RAOLITO D. LEE is 62 years old, Filipino, married and

residing at 167 Real St., Tacloban City where he may be served with court notices.
He served private respondent for 31 years without a serious breach of duty until
his constructive dismissal.

2. Public Respondent Hon. COURT OF APPEALS, 19th Division, Cebu

City, which promulgated the aforementioned impugned DECISION (Annex “A”)
and RESOLUTION (Annex “B”) is impleaded as a formal party for committing
reversible errors in revising the factual findings of the NLRC.

3. Private Respondent LEYTE LUMBER YARD & HARDWARE, INC.

is a corporation existing under and by virtue of Philippine laws, with address at
188 Rizal Avenue, Tacloban City where it can be served with summons and
processes of the Honorable Court. Respondent ART F. SO, of legal age, married
and a resident of Tacloban City, is its General manager. Private respondent is
charged for constructive dismissal tantamount to illegal dismissal.

III. FACTS OF THE CASE

1. Petitioner RAOLITO LEE was hired sometime in August 1977 by

respondent LEYTE LUMBER YARD & HARDWARE, INC. as checker at
P8.00/day up to 1982 when he resigned; however, in 1984, he was hired back by
respondent through then General Manager Robert Yu to work again as checker
until 2006, when there was a change of ownership from Robert Yu to respondent
Ruben Yu.

2. Petitioner was supposed to receive his separation pay, but the same was
withheld by the latter considering that he was allowed to continue his regular
employment as checker for the new owner, and was promised an increased salary
of P4,500/monthly.

3. On August 18, 2008, petitioner suffered from diarrhea, which prevented

him from reporting for work. Despite his 21 August 2008 justification letter to

7
Annex G – Motion for Extension of Time to File Petition for Review filed on 4 March 2008
 3

Ruben Yu, he was given a 22 August 2008 Memorandum, which penalized him
with a 25 days suspension effective on said date.

4. After serving his suspension without complaint, he reported back for

work on September 22, 2008, but was told by respondent Ruben Yu to return
after a week since he intends to give petitioner another job, because he was
already weak to be a checker.

5. When petitioner reported for work on 29 September 2008, respondent

Ruben Yu told him to return on 30 September 2008.

6. But when he reported again for work on 30 September 2008,

respondent Ruben Yu asked him if he knows how to operate a computer;
otherwise, he was required to study for 1-2 years and come back later after he has
acquired a know-how to operate a computer.

7. Despite petitioner’s intercession that he was too old and has no time to
study computer especially so that all his kids are depending on him for their
educational expenses, the respondent was stubborn on his decision not to accept
him back to work as checker.

8. Petitioner felt that such condition given to him was impossible,

unreasonable and unbearable to him, and that the refusal of his employer to
accept him back was tantamount to constructive dismissal.

9. As an afterthought, respondent mailed a 6 October 2008

Memorandum8, apparently giving petitioner an option to choose from three (3)
positions for reassignment as its management prerogative, and received by
Ronald B. LEE on 14 October 2008. However, petitioner need not state his side
on the matter since he already considered himself constructively dismissed
because of the unacceptable condition imposed on him to study computer for 1-2
years before reporting for work.

10. That is why, on 21 October 2008, he immediately filed a complaint for

illegal dismissal, separation pay, etc. against respondent with the NLRC Regional
Arbitration Branch No. 8, Tacloban City.

11. By the time he received another Memorandum9 dated 21 October

2008 from the respondent on October 29, 2008 ordering him to report for
work upon receipt thereof, the matter was already a done deal because he has
already filed a complaint and there was no more turning back, despite the fact
that he had worked for 31 years with the company, which was his only means of
livelihood.

12. In his complaint, petitioner prayed that he be declared to have been

illegally dismissed from his employment, and ordering the respondent to pay him
his unpaid salary for the month of October 2008; full backwages from November
2008 until the finality of the decision in this case; other money claims; separation
pay since 1997 – September 27, 2008 or 31 years; moral damages in the amount

8
Annex H - Memorandum dated 03 October 2008
9
Annex I - Memorandum dated 21 October 2008
 4

of P200,000.00, exemplary damages of PP200,000.00, and attorney’s fees

equivalent to 10% of the total award in his favor.

13. On August 28, 2009, the executive labor arbiter rendered a decision
dismissing petitioner’s complaint for lack of merit. The pertinent portions of his
decision state:

“Was complainant illegally dismissed?

Although complainant LEE has brought it up as an issue,
respondent Ruben Yu admits that the former indeed was a regular
employee in the store. And, while the period of employment is
largely immaterial, complainant could not have been employed for
all of 31 years since he previously resigned and was hired anew
and, if at all, he has to reckon with the three-year prescriptive
period for money claims. (Article 291, Labor Code).

As to the main issue of illegal dismissal, complainant alleges

that when he reported for work on September 22, 2008,
respondent Yu told him to return after a week but he was never
allowed to work again. The records, however, show that
complainant reported and actually worked for the whole work
week of September 22 to 27, 2008 (p. 35, Record) From then on
until at least October 21, 2008 when the present complaint was
filed, there was no indication much less any evidence that
complainant had been dismissed. Reasonably so, respondent
denies there was a dismissal at all. The rule that the employer
bears the burden of proof in illegal dismissal cases finds no
application here because the respondent denies having dismissed
complainant (Machica vs. Roosevelt Services Center, Inc. 389
SCRA 534).

Complainant is prone to making sweeping statements. He

call the memoranda issued to him by respondent on October 3,
2008 and October 21, 2008 (Annexes “C” and “D”; “2” and “3”, pp.
19-20 29-30, Records) as plain “cover up” of the alleged dismissal
of complainant. A close reading of both memoranda, however,
discloses certain facts and events extrinsic to the memoranda
themselves which may have happened well before their issuance,
specifically during the week of September 22 to 27, 2008 when
complainant last reported for work or even before.

....

As to complainant’s money claims, respondent has

convincingly proved that it complies with labor standard benefits
laws, by way of payrolls attached to the position paper. That the
payrolls are “simply duplicated” according to complainant is so
sweeping and baseless a statement. Complainant declares that he
receives P237 daily, in his complaint. Apparently, he gets even
more counting the cost of living allowance granted to him per day.
Besides, the payrolls are so voluminous as to obviate any
imagined expensive and tedious duplication or “fabrication.”
Finally, respondent’s evidence are confirmed by a notice of
inspection results (Annex “6”, p. 64, Record) issued by the DOLE
on June 13, 2008 x x x .
 5

WHEREFORE, this case is hereby DISMISSED for lack of

merit.”

14. On appeal by petitioner, the NLRC Fourth Division, Cebu City,

reversed. The pertinent portions of its decision state:

“We resolve.

The issues for resolution are the following:

1. Whether or not complainant was illegally dismissed?

2. Whether or not complainant is entitled to his money
claims?

On the first issue, We rule in the affirmative.

According to respondents complainant was made to explain

for his unauthorized absences for five (5) days. Respondents did
not give credence to complainant’s explanation that he was sick
with diarrhea which was the reason for his absences. Respondents
imposed upon complainant the penalty of suspension for 25 days
effective August 22, 2008.

Upon complainant’s return after serving his suspension,

respondents required him to choose any of the three (3)
assignments without diminution of benefits because he was no
longer efficient in his present work due to health reasons.
Complainant did make any choice but instead failed to report back
to work.

We are not persuaded by the foreLEEing.

We are more convinced that after complainant served his

25 day suspension he reported back to work on September 22,
2008 only to be told by respondent Ruben Yu to return after a
week because he will still look for another job for him
(complainant). When complainant returned on September 29,
2008 respondent Ruben Yu again told him to return on September
30, 2008. However, when complainant returned on September 30,
2008 respondent Ruben Yu would require from him to operate a
computer and if does not know how to operate a computer he
should study for 1-2 years and only then can he return to work.

The October 03, 2008 letter (p. 29) of respondent

Ruben Yu which was received by complainant on October
14, 2008 (p. 29) showing that complainant was made to
choose from among three (3) re-assignments is hardly
convincing because complainant had considered himself
constructively dismissed after respondent Ruben Yu
made unreasonable demands in his work on September
30, 2008. (underscoring ours)

There is nothing that would corroborate respondents’ claim

(p. 24) that “upon his return was required by the Respondent to
 6

choose without diminution of benefits any of the three assignments

x x x x .” Complainant returned to work on September 22, 2008
but we fail to see any document that he was being offered three (3)
assignments. If there was such an offer, this was only contained in
the October 03, 2008 letter (p. 29).

In respondents’ October 21, 2008 letter (p. 30) they claim

that complainant reported to the office on October 15, 2008
undecided but there is no evidence to prove that complainant
reported to the office on October 15, 2008. It should be noted that
by October 21, 2008 (date of letter) complainant had long
considered himself constructively dismissed.

Verily, we are cognizant that complainant had been in the

employ of respondents for a long period of time. Based on
ordinary human experience, complainant would not just abandon
his employment which is his only means of livelihood. The
allegation that he was being offered any of the three (3)
assignments is not persuasive because this only came after he had
considered himself constructively dismissed.

....

The Supreme Court in the case of Agusan del Norte Electric

Cooperative, Inc. And Horacio T. Santos vs. Joel Cagampang and
Glenn Garzon, GR No. 167627, October 10, 2008 held:

“Time and again we have said that in illegal dismissal

cases, the employer is burdened to prove just cause for
terminating the employment of the employee with clear and
convincing evidence. The weakness of the employee’s defense
should not operate to relieve nor discharge the employer of
its burden to prove its charges pursuant to the guaranty of
tenure granted by the Constitution to employees under the
Labor code. The case of the employer must stand or faill on
its own merits. (Casol v. Purefoods Corporation, G.R. No.
166550, September 22, 2005)

In this case, respondents failed to prove that complainant

was terminated for a just cause and after due process.
Complainant is entitled to reinstatement to his former position
with backwages. However, we deem it proper not to pursue his
reinstatement due to strained relations. Instead, complainant
should be granted separation pay.

....

However, we grant complainant moral and exemplary

damages, each in the amount of P20,000.00. this is proper
because the dismissal of complainant was attended with bad faith
or an act oppressive to labor. (National Sugar Refineries
Corporation vs. NLRC, 308 SCRA 599).

WHEREFORE, premises considered, the decision of the

Executive Labor Arbiter Jesselito B. Latoja is hereby REVERSED
 7

and SET ASIDE. A NEW Decision is entered declaring the illegal

dismissal of complainant.

Respondents Leyte Lumber Yard, Inc. and Ruben Yu are

hereby ordered to pay complainant, jointly and severally the
following:

1. Backwages -------------------------- P 68,398.20

2. Separation Pay--------------------- P191,022.00
3. Moral Damages-------------------- P 20,000,00
4. Exemplary Damages-------------- P 20,000.00
P229,420.20

5. Attorney’s Fee--------------------- P 29,942.02

Total:------------------------------- P329,362.22

SO ORDERED.”

15. Respondents filed a motion for reconsideration. On 26 February 2010,

the NLRC rendered a Resolution finding no sufficient ground to reverse or set
aside its Decision sought to be reconsidered.

16. On 1 July 2010, respondents filed by mail a petition for certiorari with
prayer for the issuance of a temporary restraining order and/or injunction dated
10 June 2012 and verified on 25 June 2010 in the Court of Appeals.

17. In the meantime, on 28 September 2010, NLRC issued an Entry of

Judgment10, certifying that the 28 August 2009 Decision has become final and
executory. Thereafter, the petitioner filed on November 23, 2010 a motion for
issuance of writ of execution11. After two months from filing said motion, the
same remained unresolved despite Resolution12 from the Court of Appeals
dated January 19, 2011 denying respondents’ urgent motion for issuance of a
temporary restraining order or writ of preliminary injunction.

18. In compliance with the Resolution of the Court of Appeals dated March
15, 2011 and received on March 23, 2011, the petitioner filed his Comment on
March 30, 2011.

10
Annex J - Entry of Judgment issued by NLRC dated 28 September 2010
11
Annex K – Motion for issuance of writ of execution dated 23 November 2010
12
Annex L - Resolution of CA dated 19 January 2011
 8

19. On September 14, 2011, the labor arbiter finally issued the long
overdue writ of execution13 to implement the 28 September 2011 decision of
the NLRC dated August 28, 2008. But, still, the labor arbiter refused to enforce
the writ of execution because of the dilatory motion to quash writ of
execution14 of respondent dated September 27, 2011 which the labor arbiter
failed to resolve.

20. The year-long deliberate delay to avoid the enforcement of the writ of
execution was overtaken by the assailed Decision of the Court of Appeals dated
January 17, 2012, reversing the decision of the NLRC and reinstating that of the
labor arbiter.

21. The pertinent portions of the DECISION of the public respondent

Court of Appeals, which reversed and set aside the Decision of the National
Labor Relations Commission, and reinstated the Decision of the Executive
Labor Arbiter, state:

“The main issue for resolution by the Court is whether or

not RAOLITO was constructively dismissed from employment by
petitioners.

Labor Arbiter Jesselito B. Latoja, in his decision dated April

17, 2009, stated that he found no indication, much less any
evidence, that RAOLITO had been dismissed.

On appeal, the NLRC, reversed the Labor Arbiter’s decision,

ruling that RAOLITO was illegally dismissed. It found that the
October 3, 2008 letter of petitioners, which was received by
RAOLITO on October 14, 2008, and which indicated that the latter
had to choose from among the three (3) options for reassignment,
was unconvincing because RAOLITO had long considered himself
constructively dismissed after Ruben made unreasonable demands
in his work on September 30, 2008. Further, it said that there is
nothing to corroborate respondent’s claim that “upon his return he
was required by the petitioners to choose without diminution of
benefits any of the three assignments x x x x. According to the
NLRC while complainant returned to work on September 22,
2008, there was no document showing that he was being offered
three (3) options. If there was any offer, this was only contained in
the October 3, 2008 letter. Lastly, the NLRC stated that there was
no evidence to prove that complainant reported to office on
October 15, 2008. It should be noted, according to the NLRC, that
complainant had long considered himself constructively dismissed.

After a careful reevaluation of the contradicting factual

findings of the Labor Arbiter and the NLRC, we hold that the

13
Annex M - Writ of Execution dated 14 September 2011
14
Annex N – Motion to quash writ of execution dated 27 September 2011
 9

Labor Arbiter’s ruling that RAOLITO was not illegally dismissed

from the employment is more conformable to the evidence on
record.

There is constructive dismissal if an act of clear

discrimination, insensibility, or disdain by an employer becomes
so unbearable on the part of the employee that it would foreclose
any choice by him except to foreLEE his continued employment. It
exists where there is cessation of work because “continued
employment is rendered impossible, unreasonable or unlikely, as
an offer involving a demotion in rank and a diminution in pay. In
this case, RAOLITO could not have been constructively dismissed
by petitioners as early as September 30, 2008 because even after
the said date, he was still considered an employee, as evidence by
the issuance to him of twin Memoranda, requesting that he report
to work to discuss his options for possible reassignment and/or
transfer. Such reassignment and/or transfer, absent any showing
of a demotion of RAOLITO’s rank and a diminution of his salary,
benefits and other privileges or a showing of any prejudice or
inconvenience to him, is a valid exercise of management
prerogatives and does not by itself amount to constructive
dismissal. Justifying management’s action to transfer its checkers,
Arbiter Latoja aptly stated in his Decision, and to which We agree:

....
In reversing the Arbiter’s ruling, the NLRC held that there
was no document corroborating the petitioner’s claim that upon
RAOLITO’s return to work on September 22, 2008, he was
required to choose, without diminution of benefits any of the three
assignments offered to him. If there was any offer, according to
the NLRC, this was only contained in the October 3, 2008 letter.
Further, the NLRC maintained that there was no evidence to prove
that complainant reported to office on October 15, 2008 as it noted
that, by October 21, 2008 (date of the second memorandum)
RAOLITO had long considered himself constructively dismissed.

We disagree with the foreLEEing holdings of the NLRC.

RAOLITO received a couple of Memorandum dated October

3, 2008 and October 21, 2008 respectively, as evidenced by their
separate registry return receipt attached thereto on October 14,
2008 and October 29, 2008 respectively. Worth noting is the fact
that, while he would belatedly label both as plain cover-up by the
management of his alleged dismissal from employment,
RAOLITO, at the time of his receipt thereof, did nothing to deny or
disprove the facts as stated therein by sending a simple reply or
clarification thereto. Instead, he impliedly acknowledged not only
the receipt but also the contents thereof by affixing his signature in
both registry return receipts.”
....
Contrary to the NLRC’s findings that there was no
document corroborating RAOLITO’s claim that upon his return to
work on September 22, 2008, he was required to choose, without
diminution of benefits, any of the three assignments, a scrutiny of
 10

the first memorandum dated October 3, 2008, which contents

thereof Ruben has not disputed, reveals, as aptly observed by the
Labor Arbiter, certain facts and events which may have happened
well before its issuance, specifically during the week of September
22 to 27, 2008, when complainant reported for work or even
before. From said Memorandum it can be reasonably assumed
that even prior to October 3, 2008, RAOLITO had been notified of
the management’s decision to rotate all checkers in the company.
The same letter stated: “until this day (October 3, 2008) you did
not report to the office what are your decision made (sic)”, which
clearly implies to this Court that RAOLITO had been notified
earlier than October 3, 2008 of management’s plan to reassign its
checkers, and despite this notice, he had yet to inform the
management, either verbally or by writing, of his choice from
among the three available options for reassignment offered to him,
x x x x.”
....
WHEREFORE, premises considered, the assailed Decision
promulgated on August 28, 2009 by the National Labor Relations
Commission Fourth Division of Cebu City in NLRC Case No. VAC-
05-000708-09 (RAB VIII-10-00326-08) is hereby REVERSED
AND SET ASIDE. The NLRC, or any one acting in its behalf is
henceforth permanently enjoined from implementing said August
28, 2009 Decision. This now renders petitioner’s February 10, 2011
Motion for Reconsideration moot. Finally, the Decision of the
Labor Arbiter dated April 17, 2009 is hereby REINSTATED. Costs
on private respondent.

SO ORDERED.
22. On April 23, 2012, public respondent denied petitioner’s motion for
reconsideration (Annex F) in its Resolution dated 12 November 2012 (Annex B).
Hence, this petition for review on certiorari.

IV. GROUND RELIED UPON

Petitioner respectfully submits that the instant case falls under the
exception to the established rule that the findings of fact of the Court of Appeals
are conclusive and binding and cannot be disturbed. This exception was
enunciated in the case of Fernando LEE v. Court of Appeals, G.R. No.
158922 dated 28 May 2004, citing Siguan v. Lim, 318 SCRA 725, where this
Honorable Supreme Court ruled that:

“We enumerated the instances when the factual

findings of the Court of Appeals are not deemed conclusive, to
wit: (1) when the conclusion is a finding grounded entirely on
speculations, surmises or conjectures; (2) when the inference
made is manifestly mistaken, absurd or impossible; (3) when
there is grave abuse of discretion; (4) when the judgment is
based on a misapprehension of facts; (5) when the findings of
 11

facts are conflicting; (6) when the Court of Appeals, in

making its findings went beyond the issues of the case and
the same is contrary to the admission of both the appellant
and the appellee; (7) when the findings are contrary to those
of the trial court; (8) when the findings are conclusions
without citation of specific evidence on which they are based;
(9) when the facts set forth in the petition as well as in the
petitioner’s main and reply brief are not disputed by the
respondent; and when (10) the findings of fact are premised
on the supposed evidence and contradicted by the evidence
on record.”

In the instant case, the issue is shrouded by a conflict of factual perception

or conflicting findings of facts, conclusions grounded entirely on speculations,
surmises or conjectures; inferences which are manifestly mistaken, absurd or
impossible, grave abuse of discretion, and findings contrary to those of the NLRC
which seriously reviewed the questionable findings the Labor Arbiter.

Briefly, there is reasonable ground to uphold the NLRC decision, finding

that petitioner was constructively dismissed and is entitled to separation pay for
his 31 years of service. The immediate filing of his complaint for constructive
dismissal before receiving the second Memorandum would characterize him as
one who deeply felt that he had been wronged such that he had to foreLEE his
only source of livelihood.

On the other hand, public respondent upheld the Labor Arbiter’s decision
finding that petitioner was not dismissed and should not be entitled to separation
pay or any monetary claims. However, private respondent claims that petitioner
was not dismissed; rather, he abandoned his work, evidenced by the twin
memoranda.

When there are conflicting findings of facts, petitioner invokes the basic
principle expressed in Article 4 of the Labor Code --- “that all doubts in the
interpretation and implementation of the Labor Code should be interpreted in
favor of the workingman.”

V. ASSIGNMENT OF ERRORS

1. The re-evaluation of the Court of Appeals is

grounded on speculation, surmises or conjectures and
the inference made is manifestly absurd, mistaken or
impossible, and conflicting findings of facts.
 12

2. The Court of Appeals committed grave abuse

of discretion amounting to lack or excess of
jurisdiction when it declared that petitioner
abandoned his work and was not dismissed, and
denied his separation pay and other monetary claims,
without taking into account the immediate filing of
the illegal dismissal complaint and other relevant
circumstances.

3. The Court of Appeals committed grave abuse

of discretion amounting to lack or excess of
jurisdiction when it ruled in favor of respondent
despite the conflicting findings of facts, contrary to
the expressed mandate of Article 4 of the Labor Code.

4. The Court of Appeals committed grave abuse

of discretion amounting to lack or excess of
jurisdiction when it when it reversed and set aside the
findings of the NLRC that petitioner was
constructively dismissed and not entitled to
separation pay and other monetary claims.

VI. ISSUES OF THE CASE

WHETHER OR NOT THE PETITIONER

ABANDONED HIS WORK, OR HE WAS
CONSTRUCTIVELY DISMISSED?

WHETHER OR NOT THE PETITIONER IS

ENTITLED TO SEPARATION PAY AND OTHER
MONEY CLAIMS?

VII. A R G U M E N T
In the instant case, the Court of Appeals affirmed the finding of the Labor
Arbiter that petitioner abandoned his work; this is diametrically opposed to the
finding of the National Labor Relations Commission, which exercised
adjudicative function over the Labor Arbiter, that petitioner was constructively
dismissed.

In revising the factual findings of the NLRC, the public respondent

committed reversible errors, to wit:

1. Its re-evaluation of the factual

findings of the NLRC is grounded on
speculation, surmises or conjectures and the
inference made is manifestly absurd,
mistaken or impossible, and conflicting
findings of facts.

2. The Court of Appeals committed grave

abuse of discretion amounting to lack or
excess of jurisdiction when it declared that
petitioner abandoned his work and was not
 13

dismissed, and denied his separation pay and

other monetary claims, without taking into
account the immediate filing of the illegal
dismissal complaint and other relevant
circumstances.

Briefly, it shall be shown that the private respondent seriously erred in

revising the decision of the NLRC that petitioner was constructively dismissed
and should be entitled to separation pay and other monetary claims.

The erroneous re-evaluation of the public respondent is quoted, thus:

After a careful reevaluation of the contradicting factual

findings of the Labor Arbiter and the NLRC, we hold that the
Labor Arbiter’s ruling that RAOLITO was not illegally dismissed
from the employment is more conformable to the evidence on
record.

x.x.x. In this case, RAOLITO could not have been

constructively dismissed by petitioners as early as September 30,
2008 because even after the said date, he was still considered an
employee, as evidence by the issuance to him of twin Memoranda,
requesting that he report to work to discuss his options for possible
reassignment.
In reversing the Arbiter’s ruling, the NLRC held that there
was no document corroborating the petitioner’s claim that upon
RAOLITO’s return to work on September 22, 2008 x x x. Further,
the NLRC maintained that there was no evidence to prove that
complainant reported to office on October 15, 2008 as it noted
that, by October 21, 2008 (date of the second memorandum)
RAOLITO had long considered himself constructively dismissed.

We disagree with the foreLEEing holdings of the NLRC.

RAOLITO received a couple of Memorandum dated October

3, 2008 and October 21, 2008 respectively, as evidenced by their
separate registry return receipt attached thereto on October 14,
2008 and October 29, 2008 respectively. Worth noting is the fact
that, while he would belatedly label both as plain cover-up by the
management of his alleged dismissal from employment,
RAOLITO, at the time of his receipt thereof, did nothing to deny or
disprove the facts as stated therein by sending a simple reply or
clarification thereto. Instead, he impliedly acknowledged not only
the receipt but also the contents thereof by affixing his signature in
both registry return receipts.”

....
x x x a scrutiny of the first memorandum dated October 3,
2008, which contents thereof Ruben has not disputed, reveals, as
aptly observed by the Labor Arbiter, certain facts and events
which may have happened well before its issuance, specifically
during the week of September 22 to 27, 2008, when complainant
reported for work or even before. From said Memorandum it can
 14

be reasonably assumed that even prior to October 3, 2008,

RAOLITO had been notified of the management’s decision to rotate
all checkers in the company.

The public respondent relied on the twin memoranda as evidence to show

that RAOLITO was not constructively dismissed as early as September 30, 2008
because even after said date, he was still considered an employee. However,
public respondent failed to note that private respondent never rebutted the
positive allegations of the petitioner in his position paper, which facts are
repleaded in par. 6, 7 and 8 of the Facts of the Case of this Petition and quoted
herein, to wit:

x-x-x
6. But when he reported again for work on 30
September 2008, respondent Ruben Yu asked him if he
knows how to operate a computer; otherwise, he was
required to study for 1-2 years and come back later after
he has acquired a know-how to operate a computer.

7. Despite petitioner’s intercession that he was too

old and has no time to study computer especially so that
all his kids are depending on him for their educational
expenses, the respondent was stubborn on his decision
not to accept him back to work as checker.

8. Petitioner felt that such condition given to him

was impossible, unreasonable and unbearable to him,
and that the refusal of his employer to accept him back
was tantamount to constructive dismissal.

x-x-x

Public respondent further inferred that RAOLITO “impliedly

acknowledged not only the receipt but also the contents thereof by affixing his
signature in both registry return receipts”. This is a manifest error of the public
respondent, considering that said evidence relied upon by respondent failed to
show that RAOLITO personally received the first memorandum and affixed his
signature in the registry receipt, while the second memorandum was received
after the fact that he already filed his complaint for illegal dismissal.

These salient facts were correctly evaluated by the NLRC when it ruled,
thus:
We are not persuaded by the foreLEEing.
 15

We are more convinced that after complainant served his

25 day suspension he reported back to work on September 22,
2008 only to be told by respondent Ruben Yu to return after a
week because he will still look for another job for him
(complainant). When complainant returned on September 29,
2008 respondent Ruben Yu again told him to return on September
30, 2008. However, when complainant returned on September 30,
2008 respondent Ruben Yu would require from him to operate a
computer and if does not know how to operate a computer he
should study for 1-2 years and only then can he return to work.

The October 03, 2008 letter (p. 29) of respondent

Ruben Yu which was received by complainant on October
14, 2008 (p. 29) showing that complainant was made to
choose from among three (3) re-assignments is hardly
convincing because complainant had considered himself
constructively dismissed after respondent Ruben Yu
made unreasonable demands in his work on September
30, 2008. (underscoring ours)

Finally, the second Memorandum dated 21 October 2008 was received by

RAOLITO on October 29, 2008, long after he had filed his complaint for illegal
dismissal before the NLRC Regional Arbitration Branch 8, Tacloban City.

The sending of the twin memorandum does not constitute the twin
requirements of notice and hearing to condemn RAOLITO to have abandoned his
work. RAOLITO, who has worked with respondent for 31 years, would not just
walk away from any re-assignment unless for a serious reason. He did not
complain when he was suspended without pay for one-month because his
justification for being sick was not accepted by respondent.

But the subsequent grave threat not to LEE back to work or to be assigned
to a new work provided he learns how to operate a computer is indicative of a
clear discrimination and insensibility by the employer, which becomes so
unbearable for the employee but to choose to foreLEE his continued
employment, and tantamount to constructive dismissal.

Unfortunately, the public respondent looked the other way. It seriously

failed to see that RAOLITO’s immediate filing of a complaint for illegal dismissal
should negate the charge of abandonment, as enunciated by this Supreme Court
in a catena of cases.
 16

This Honorable Supreme Court has ruled in Labor v. NLRC, GR No.

110388, 4 September 1995 in a case of abandonment of work that “it is the
employer who has the burden of proof to show a deliberate and unjustified
refusal of the employee to resume his employment without any intention of
returning”. The twin memoranda of respondent are not sufficient evidence to
prove the unjustifiable refusal of RAOLITO to continue his work.

3. It disregarded the mandate of Article

4 of the Labor Code that in case of conflicting
findings of facts, the same should be ruled in
favor of the workingman.

This principle has been extended by jurisprudence to cover doubts in the

evidence presented by the employer and the employee. (Fujitsu Computer
Products Corp. of the Phils. vs. Court of Appeals, 494 Phil 697).
Petitioner finds refuge in the case of Unicorn Safety Glass, Inc. v.
Basante, 486 Phil 493, cited in Penaflor v. Outdoor Clothing
Manufacturing Corp., GR No. 177114, January 21, 2010.

As shown above, RAOLITO has, at the very least, shown serious doubt
about the merits of the company’s case, particularly in the appreciation of the
clinching evidence (twin memoranda) which the Labor Arbiter and the CA
decisions were based. In such contest of evidence, the cited Article 4 is invoked in
favor of petitioner on the basis of his unrebutted positive allegations, thus finding
that RAOLITO was constructively dismissed given the hostile and discriminatory
attitude of Ruben Yu and the latter’s harsh requirement for RAOLITO to return
to work or be re-assigned only after he learns how to operate a computer. Under
such insensitive and punitive circumstances, RAOLITO has no alternative but to
foreLEE with his work, as he was in fact refused in several instances by
respondent Ruben Yu to come back later.

4. Public respondent committed grave

abuse of discretion tantamount to lack or
excess of jurisdiction when it reversed and set
aside the findings of the NLRC that petitioner
was constructively dismissed and not entitled
to separation pay and other monetary claims.

In summation, it is crystal clear that public respondent committed grave

abuse of discretion tantamount to lack or excess of jurisdiction when it
committed the foreLEEing reversible errors in revising the factual findings of the
NLRC that petitioner was constructively dismissed and not entitled to separation
pay and other monetary claims.

First, it deviated from the ruling in Labor v. NLRC, ibid, that “In the case
of abandonment, it is the employer who has the burden of proof to show a
 17

deliberate and unjustified refusal of the employee to resume his employment

without any intention of returning. Otherwise, it would show that its assailed
decision supporting respondent’s reliance of the twin memoranda as its sole
defense of petitioner’s abandonment of work --- is insufficient ground to prove
petitioner’s failure to report for work without justifiable reason (as the truth is
that he was told not to return to work unless he learns how to operate a
computer).

Second, public respondent’s conclusion that the refusal of petitioner to

answer the memoranda implies admission of all the statements contained therein
is erroneous, considering the aforesaid actual unfriendly surrounding
circumstances. Moreover, respondent failed to prove that petitioner personally
received the first memorandum. The second memorandum was received by the
petitioner long after he already filed his complaint. Thus, respondent cannot
impose management prerogative in the absence of substantial and procedural
due process. To reiterate, RAOLITO’s immediate filing of a complaint for illegal
dismissal should negate the charge of abandonment.

Third, the assailed decision of public respondent did not entitle petitioner
to separation pay or other monetary claims because he allegedly abandoned
work. In other words, it implied that termination was for a valid cause. But, it is
contradictory to respondent’s contention that RAOLITO was not dismissed.
Under this confusing circumstance together with conflicting findings of facts, the
public respondent should have ruled in favor of the workingman pursuant to
Article 4 of the Labor Code and the doctrine of Social Justice as enunciated in
the landmark case of Calalang v. Williams, GR No. 47800, 21 December
1940, to wit:
Social justice is "neither communism, nor
despotism, nor atomism, nor anarchy," but the
humanization of laws and the equalization of social
and economic forces by the State so that justice in its
rational and objectively secular conception may at
least be approximated. Social justice means the
promotion of the welfare of all the people, the
adoption by the LEEvernment of measures calculated
to insure economic stability of all the competent
elements of society, through the maintenance of a
proper economic and social equilibrium in the
interrelations of the members of the community,
constitutionally, through the adoption of measures
legally justifiable, or extra-constitutionally, through
the exercise of powers underlying the existence of all
 18

LEEvernments on the time-honored principle of salus

populi est suprema lex.

P RA Y E R

WHEREFORE, premises considered, it is respectfully prayed that the

assailed Decision promulgated on January 17, 2012 by the Court of Appeals,
Special Former 19th Division of Cebu City in CA-G.R. SP No. 05182 be
REVERSED AND SET ASIDE, and the Decision of the National Labor Relations
Commission, Fourth Division, Cebu City dated August 28, 2009 be
REINSTATED.

Other relief and remedies just and equitable under the premises are also
prayed for.

Tacloban City for Manila. December 27, 2012.

MITCHELLE MAY A. CALADES

Counsel for the Petitioner
Roll No. 50220
IBP Lifetime No. 01789
PTR No. 8476397; 1-2-12; Tacloban City
MCLE Compliance No. II-0035479; 11-20-12
143 Del Pilar St., Tacloban City
Memail address: mcalades@yahoo.com

COPY FURNISHED BY REGISTERED

MAIL AS PER AFFIDAVIT OF SERVICE
SHOWN BELOW:

ATTY. JASON G. ELLADO

Counsel for the Private Respondents
67 Real St. Tacloban City

HONORABLE COURT OF APPEALS

Special Former 19TH DIVISION, CEBU CITY

EXPLANATION OF SERVICE BY MAIL

 19

A legible copy of the petition was sent to the counsel for private
respondent, and the Honorable Court of Appeals-Special Former 19 th Division,
Cebu City through registered mail because of the impracticability of personal
service due to the distance between their offices and that of the undersigned.

MITCHELLE MAY A. CALADES

Republic of the Philippines)

City of Tacloban ) S.S.

VERIFICATION and CERTIFICATION

OF NON FORUM SHOPPING
 20

with STATEMENT OF MATERIAL DATES

I, RAOLITO D. LEE, of legal age, Filipino, married and a resident of 167 Real
St., Brgy. 50, Tacloban City, Philippines, after having been duly sworn to in accordance
with law, do hereby depose and say: THAT---

I am the petitioner in the above-entitled petition; that I have caused its

preparation; I have read it and the allegations therein are true and correct of my own
personal knowledge and/or based on authentic records, legible duplicate originals and
faithful reproductions of the originals or duplicate originals;

I have not heretofore commenced any other action or proceeding involving the
same issues in the Supreme Court, the Court of Appeals or different divisions thereof, or
any other tribunal or agency, and to the best of our knowledge, no such or similar action
or proceeding is filed or pending therein;

If I should thereafter learn that a similar action or proceeding is filed or is

pending before the Supreme Court, the Court of Appeals, or any divisions thereof, or any
other tribunal or agency, I will undertake to promptly inform the aforesaid courts and
other tribunal or agency thereof within five (5) days therefor.

STATEMENT OF MATERIAL DATES

The assailed DECISION in CA-GR CEB-SP No. 05182 promulgated by public

respondent on January 17, 2012 was received by petitioner through counsel on February
09, 2012. Within fifteen (15) days or specifically on February 23, 2012, petitioner filed a
Motion for Reconsideration.

In a RESOLUTION dated November 12, 2012, the public respondent denied the
petitioners’ Motion for Reconsideration. The aforesaid RESOLUTION was received by
petitioner’s counsel on November 28, 2012. Accordingly, the period of fifteen (15) days
within which petitioner may file a petition for review on certiorari under Rule 45 of the
Rules of Court expires on December 13, 2012. However, petitioner filed a Motion for
Extension of Time to file Petition for Review on December 7, 2012, requesting for 30
days or until December 28, 2012 within which to file this petition. This petition is filed
before the lapse of the deadline, hence filed on time.

IN WITNESS WHEREOF, I have hereunto affixed my signature this 27

December 2012 at Tacloban City, Leyte, Philippines.

RAOLITO D. LEE
Petitioner/Affiant

SUBSCRIBED AND SWORN to before me this 27 December 2012 at Tacloban

City, by RAOLITO D. LEE, who exhibited to me as competent evidence of identity his
____________________________, personally known to me and to me known as
the same person who personally signed the foreLEEing verification and certification of
non-forum shopping with statement of material dates, and acknowledged that he
executed the same.

Doc. No. ___

Page No. ___
Book No. 63
SERIES OF 2012
Republic of the Philippines)
City of Tacloban ) S.S.

AFFIDAVIT OF SERVICE
 21

I, MELVIN D. BALDEZ, of legal age, Filipino citizen, single and a

resident of Tunga, Leyte, after having been first sworn according to law, hereby
depose and state: THAT---

1. I am the Secretary of CALADES LAW OFFICE, Tacloban City;

2. That on 27 December 2012 at the post office located at Tacloban City,

I SERVED BY REGISTERED MAIL WITH RETURN CARD, copies of the
Petition for Review in SC-GR No. ______ to be filed with the SUPREME
COURT, entitled, “RAOLITO LEE vs. Court of Appeals, Leyte Lumber Yard and
Hardware, Inc.” pursuant to Section 3, Rule 45 of the 1997 Rules of Civil
Procedure in separate envelopes, with instructions to the post office to return the
same if it was not received within ten (10) days from notice by the following
addressees:

The Clerk of Court

Court of Appeals, Sp. Fmr. 19th Division
Cebu City

ATTY. JASON G. ELLADO

Counsel for the Private Respondents
67 Real St. Tacloban City
3. The POST OFFICE has issued REGISTRY RECEIPTS indicating that
aforesaid copies of the pleading were mailed to the respective addressees, and are
hereto attached opposite the printed names of the addressees as proof of service.
The registry return cards shall be filed immediately upon their receipts by the
sender.

IN WITNESS WHEREOF, I have hereunto set my hand this 27

December 2012 at Tacloban City, Philippines.

MELVIN D. BALDEZ
Affiant

SUBSCRIBED AND SWORN to before me this 27 December 2012 at

Tacloban City, by BEN P. LABASE, who exhibited to me as competent evidence of
identity his Postal ID No. 7185948 valid until October 2013, personally known to
me and to me known as the same person who personally signed the affidavit of
service and acknowledged that he executed the same.

Doc. No. ___

Page No. ___
Book No. 63
SERIES OF 2012