fh) pai R Republic of the Philippines Supreme Court Manila FIRST DIVISION JS UNITRADE MERCHANDISE, GR. No. 200405 INC, Pationer, Present CAGUIOA, Chairperson REYES, J.C. JR., LAZAROJAVIER, “ZALAMEDA, and LOPEZ, Promulgated: RUPERTOS. SAMSON, JR, - reac FEB 25 2020 wah DECISION LAZARO-JAVIER, J ‘The Case ‘This petition for certiorari assails the following issuances ofthe Court ‘of Appeals in CA-GR. SP No, 114436 entitled “Ruperto S. Samson, Jr. v JS Unitrade Merchandise, Inc, andlor Samuel L Po, Ed Bargan, Luisito. ‘Morales and National Labor Relations Commission (Thival Division)”Desison 2 GR.No, 200405 1) Decision! dated October 26, 2011, alfirming the labor arbiter’s award ‘of separition pay in lieu of reinstatement but deleting the avward of ‘backwages to respondent Ruperto Samson, Jr. and 2) Resolution? dated January 27, 2012, denying petitioner's motion for reconsideration, Proceedings before the Labor Art Respondent Ruperto Samson, Jr. filed a complaint for constructive dismissal, unused service incentive leave credits, 13° month pay, actial damages, moral damages, exemplary damages, and attorney's fees against respondent JS Unitrade Merchandise, Ine. (JS Unitrade) and its officers, namely, Samuel Po (President), Edwin Bargan (Sales Director) and Luisito “Morales (HR Manager). Inhis Affidavit—Position Paper* dated November 20, 2007, respondent escentially alleged: On February 14, 2005, Samuel Po hired him as Key Account Manager with « monthly salary’of P28,000.00 and guaranteed bonuses. He became a regular employee on August 14, 2005 and granted a salary of 30,000.00. On February 1, 2006 his salary was increased to P31,500.00, Effective July 1, £2006, ne got promoted to Senior Key Account Manager with a monthly salary ‘of 35,000.00. After a year, he netted a 104% grow in sales, He was even, given an award for his achievement. * In view of his excellent performance, Samuel Po and Edwin Bargan, through Interoffice Memorandum dated January 9, 2007, directed him to further develop the business in the Key Accounts within South Luzon, For this assignment, he was promoted to Associate Atea Sales Manager for South [Luzon with a monthly salary of P45,000.00 starting February 1, 2007. He was, eventually awarded Best Key Account Management, Best in Chamee Feminine Protection Products, Best in Adult Diapers Category, and Runner~ up in Diaper Category. He even went to Beijing, China on an incentive trip, From January to August 2007, he averaged a performance growth of 102%.° Burt things changed in mid-2007, Edwin Bargan started to single him cout by not appraising his performance from January to June 2007. He was one of the two (2) Key Managers who did nat enjoy the performance appraisal ‘bonus. He got faulted for alleged gaps and executional flaws in the selling "i nn vn Sonos mts oe Se Theeen biselo 3 es ‘Decision 3 GR No. 200405 areas though the same were not his fault. He was offered the option of being ‘demoted to Senior Key Account Manager or receiving remuneration upon his cet from the company. He got replaced by a certain Joy Lim. On September 6, 2007, he was assigned to office work without field and personnel supervisory functions. He performed only clerical work. He felt harassed, shamed, and humiliated. On September 18, 2007, he stopped reporting for work and filed a complaint before the National Labor and Relations Commission (NLRC). On September 19, 2007, he returned his company-issued items. On September 20, 2007, the ‘company issued a show cause memo pertaining to the company vehicle and abandonment. On October 18, 2007, he received via registered mail a Notice ‘of Dismissal dated October 8, 2007.” He claims he was eonstrvtively dismissed because he was illegally ceased out from his employment by demoting him in an oppressive and ‘malicious manner. Thus, he was entitled to reinstatement, backwages, unused service incentive leave, proportionate 13° month pay for 2007, damages, and attorney's fees" Petitioner JS Unitrade and its officers, namely, Samuel Po, Edwin Bargan, and Luisito Morales, essentially averred Starting May 2007, respondent's performance started to decline a the Inventory for his area was frequently out of stock and coupled with low stock ‘weight, There was also poor execution of promotional activities in Southern Luzon, Respondent's low level of performance continued for three (3) ‘months. Through a Memorandum dated July 26, 2007, respondent was, reminded of his lapses and required to explain but he did not adress the same Under Memorandum dated September 6, 2007, respondent was directed to report to the head office in Pasig City to do administrative work. He was tasked to review the performance ofthe Southern Luzon area, define areas of opportunity and growth, planning and forecasting, and reconciliation of hanging accounts. Respondent's tasks were still aligned wit his position as, Associate Area Sales Manager.” Ruling of the Labor Arbiter By Decision!” dated June 30, 2008, Labor Arbiter Romelita Riofloriod found that respondent's transfer ‘to the head office did not amount to constructive dismissal. Respondent impliedly admitted that there were indeed issues with his performance but there was no evidence that he was singled out fr discriminated against. Besides, respondent never addressed the issues Sita. weet VeaDecision ‘ GR No, 200805 raised by the company officers rezaing his declining performance. The latter were justified in moving him to the head office, reducing his gasoline allowance, and recalling his laptop. Further, respondent did not abandon his employment because he in fact immediately filed a complaint for illegal slismissal and reinstatement." Respondent was only absent for ane (1) week, from September 10 10 24, 2007, thus, the penalty of dismissal imposed on him was too harsh a penalty considering it was his first infraction and he had a good record, The lesser penalty of suspension would have sufficed. Respondent was considered to have been suspended from September 18 to December 31, 2007 Respondent was entitled to backwages equivalent to six (6) months worth of salary totaling P270,000.00. By reason of strained relations, respondent could no longer be reinstated and was, thus, entitled to separation pay totaling 135,000.00 (3 years x P45,000.00)."" Consequently the labor arbiter directed: WHEREFORE, in view of the foregoing, judgment i hereby rendered Ordering JS UNITRADE MERCHANDISE, INC. 0 sy ‘complainant th amount of P45, 000.0 as backwages and separation pay Aller lms ace dimissed for lnc of tal o lel bis, So ORDERED.” Proceedings before the NLRC ‘Both petitioner and respondent appealed to the NLRC." ‘On one hand, petitioner argued that the labor acbiter gravely abused ber diseretion when she: a) considered respondent's pleadings despite having, bbeen filed out of time; b) held that respondent did not abandon his employment; c) ruled that suspension would have sufficed for respondeet's absence from work: d) found that respondent was illegally dismissed: <) ‘warded backwages and separation pay to respondent; and f) dismissed thei claim for damages and attomey's fees." On the other hand, respondent, in his partial appeal, faulted the labor arbiter for: 1) ruling he was not constructively dismissed; 2) considering bien tohave been suspended for three (3) months; 3) not ordering histeinsatement, ‘and 4) limiting the computation aris backwages to six (6) months only."Desision 5 GR No, 200405 Ruling of the NLRC By Decision" dated February 15,2010, the NLRC reversed. Itheld that respondent was validly transferred from field work to office work. The company validly exercised its management preeogative in effecting such transfer. Respondent could not have been constructively dismissed because despite his transfer, he stil retained his til, salary, and earned benefits. There wat no. showing’ that the transfer was unreasonable, inconvenient or prejudicial to respondent." ‘The NLRC further held that respondent abandoned his employment. Respondent was absent for a month, despite having received three (3) notices to retum to work and explain his absence. Coupled with his refusal to return to work, respondent also returned the company equipment issued to him. ‘These acts indicated hhis intention to sever his employment with the company.” Respondent's motion for reconsideration” was denied under Resolution dated March 24, 2010." Proceedings before the Court of Appeals ‘Through a special civil setion for certiorari, respondent faulted the NLKU with grave abuse of discretion amounting 10 lack or excess of jutisdiction for concluding that he was not constructively dismissed and that he, instead, abandoned his employment. He essentially reiterated the arguments he razed before the labor arbiter and the NLRC Ruling of the Court of Appeals By its assailed Decision dated October 26, 2011, the Court of Appeals ‘instated the decision ofthe labor arbiter but deleted the award of hackwages. Teheld that respondent was not consruetively dismissed, nor did he abandon. his employment, vz. CCleaty, wht happened as case of misunderstanding between management and employe. This being the ease, the Court hols that although there wasp constructive sss by private espendeats, neler twas there any abandonment of work by petone. Both pues must Therefore ear the consequences of thei respective sionsDecision ‘ GR. No, 200405 In sum, the sited Decision dato Febmiary 15, 2010 of public respondent NLRC finding that petitioner absndoned his employment i not ‘Supported by sobstantal evidence and contravenes ete ursmadence. As fu, public respondent NLRC commit grave abuse of disrtin in Aismissing petioer’s complain. WHEREFORE, he potion i pry granted. The Decision dated February 15, 2010 and Resolution dated” March 24, 2010 of public sespondeat NLRC are ot asi. Accordinls the labor arbiters Decision ‘ated Tue 3, 2008 svardng Separation payin the amount of P135,00.00 is alfiemed, subject to the modifiation that the sad of backgsesis deleted. 50 ORDERED ‘The parties once again moved for reconsideration, but their motions wore denied under the assailed Resolution dated January 27, 2012. ‘The Present Petition Petitioner now invokes the Court's discretionary appellate jurisdiction via Rule 45 of the Rules of Court to review and reverse the assailed Aispositions of the Court of Appeals. It faults the Court of Appeals for affirming the labor arbiter’s award of separation pay and holding that respondent did not abandon his employment. According to petitioner, since there was no dismissal to speak of, respondent should not have been awarded separation pay. It would be an abuse of the avowed principle of “compassionate justice” in favor ofthe working man if the grant of financial assistance to an employee who was not even dismissed would be allowed, There is also substantial evidence on record showing that respondent indeed abandoned his employment. Respondents intent to sever his relationship with the company was manifest when he returned the company-issued equipment ‘and relinquished his identification card” By Comment dated July 3, 2012, respondent basically repleads his arguments that he was constructively disinissed and he did not abandon his employment. Under Reply?” dated November 19, 2012, petitioner repeated the arguments inthe petition, Both parties further reproduce their respective arguments in their memoranda.Desision 7 GR No, 200405 Issue Did the Court of Appeals commit reversible error when it found that respondent did not abandon his employment and that he is entitled to separation pay’? Ruling First off the issue on constructive dismissal has already been settled ‘with finality by the Court of Appeals in its assailed Decision dated October 26, 2011 and Resolution dated January 27, 2012, Respondent, in fact, n0 longer questioned the issuances before this Court. ‘The only remaining live issues ae, first: did respondent abandon his ‘employment?; and second: assuming respondent did not abandon his «employment, isthe directive for payment of separation pay proper? We affirm, First. Abandonment is the deliberate and unjustiied refusal of an cmployee to resume his employment. It constitutes neglect of duty and i 4 jst cause for termination of employment under the Labor Code, To constitute abandonment, however, there must be a clear and deliberate intent 10 ‘discontinue one's employment without any intention of returning. In this regard, two elements must concur (1) flue to report for work or absence without valid o justifiable reason, and (2)a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt acts: Employees who take steps to protest ther dismissal eannot logically be said to have abandoned their work, A charge of abandonment is totally Inconsistent with the immediate filing of a complaint for illegal dismissal The filing thereof is proof enough of one’s desire to return to work, thus negating any suggestion of abandonment" On this score, the Court of Appeals keenly riled: Nonetheless pettoner cannot also be said t have abandoned his jh Although petite le torpor Tor work an sirendeed is or tools to private respondent company, these were obviously done on the ‘nstaken belie that he was singed out nd demote by private responds ene, petitioners ats cannot be conse as abandonment of jo, as hoimmedistly ed omplan for constoctive dismissal 8 werk atthe stopped reporting for work Clearly, what happened was a case of misunderstanding berwoon rmanagernent and employee. This being the case, the Court holds that 2B Carp of Daan Cp» Bs, 13 Pi 3924002013), 2 Bar al NeoPa SRL 1 M771 2D.Decision ® GR No. 200408 though there was 0 consrtve dst by private respondents, nthe ‘vas tere any abandonment of work by peiione. Bath patice mist therfore bear the ensequancesf thei respocive actions Abandonment is a matter of intention and cannot lightly be presumed from certain equivocal sets. To constitute abandonment, there must be clear proof of deliberate and unjustified intent to sever the employer-employee telationship. Cleary, the operative act is sil the employee's ultimate act of potting an end to his employment.™ In this ease, respondents insistence that hhe was constructively dismissed, albeit it was disputed, and his act of ‘immediately filing a ease for constructive dismissal below, negate petitioner's ‘charge of abandonment, Second. Since there is no illegal dismissal nor abandonment to speak of here, the logical step would have been to allow respondent to resume his position as Associate Area Sales Manager for South Luzon, As it was, Fespondent’s reinstatement is no longer feasible because of the parties’ strained relation. Labor Arbiter Riofloriod aptly observed “iis wsthinkable that any productive working relationship could be restored. Certainly, relnstating complainant would no longer be in his best interest.” Indeed, in case the reinstatement is no longer feasible, as inthis case, an award of separation pay in lew of reinstatement, is justified. The Court has ruled that reinstatement is no longer feasible: (a) when the former position of the illegally dismissed employee no longer exists; or (b) when the employee's business has closed down; ot (c) when the employer-employee relationship has already boon strained as to render the reinstatement impossible, The Court likewise considered reinstatement to be non-feasible because a “considerable time” has lapsed between the dismissal andthe resolution ofthe ease. Here, the labor arbiter and the Court of Appeals were correct in awarding separation pay in lieu of reinstatement because of the strained relation between petitioner and respondent. ACCORDINGLY, the petition is DENIED. The assailed Decision dated October 26, 2011 and Resolution dated January 27, 2012 of the Court, ‘of Appeals in CA-GR. SP No. 114436 are AFFIRMED. 80 ORDERED. amy: fhe JAVIER sociate Justice 5 Siero eon dni 499i S86, S16 209. 2 Mani okey hb ne Tj, 7 i 284,214 201Deeiton ° GRNo. 200405 (on official leave) JOSE C. REYES, JR, ‘Neodisde Swstee ATTESTATION [attest that the conclusions in the above Decision had been reached in consultation before the ease was assigned to the writer ofthe opinion of the Cours Division. ‘Acting Chairperson, First DivisionDecision 10 GR. No, 200405 (CERTIFICATION Pursuant to Section 13, Article VIII of the Constitution, I certify that the conclusions in the above Decision had been reached in consultation before the ease was assigned to the writer of the opinion of the Coust's Division,