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MACASERO vs SOUTHERN INDUSTRIAL GASES PHILS. GR No.

178524 2009 FACTS: - Panfilo Macasero works as Carbon Dioxide Bulk Tank Escort for Southern Industrial Gases, Phili ines !SIGP"# - $e was se%ered fro& his 'ob for the reason that his ser%ices were no lon(er needed# - Macasero filed a case of ille(al dis&issal a(ainst SIGP before the )abor *rbiter !)*" who ruled that he is considered a re(ular e& lo+ee but was not ille(all+ dis&issed and that he is entitled to se aration a+ e,ui%alent to - &onth for e%er+ +ear of ser%ice lus -.th &onth a+# - The /ational )abor 0elations Co&&ission !/)0C" affir&ed the decision of the )* but &odified the co& utation for the se aration a+# The Court of * eals !C*" also affir&ed the decision of the /)0C# ISSUE: 1hether or not Macasero is ille(all+ dis&issed and is entitled to se aration a+ HELD: 1hile both labor tribunals and the a ellate court held that Macasero failed to ro%e the fact of his dis&issal, the+ oddl+ ordered the award of se aration a+ in lieu of reinstate&ent in li(ht of SIGP co& an+2s 3fir& stance that Macasero was not its e& lo+ee %is a %is the unflinchin( assertion of Macasero that he was which does not create a fertile (round for reinstate&ent#3 It (oes without sa+in( that the award of se aration a+ is inconsistent with a findin( that there was no ille(al dis&issal, for under *rticle 456 of the )abor Code and as held in a catena of cases, an e& lo+ee who is dis&issed without 'ust cause and without due rocess is entitled to backwa(es and reinstate&ent or a+&ent of se aration a+ in lieu thereof# Thus, an ille(all+ dis&issed e& lo+ee is entitled to two reliefs7 backwa(es and reinstate&ent# The two reliefs ro%ided are se arate and distinct# In instances where reinstate&ent is no lon(er feasible because of strained relations between the e& lo+ee and the e& lo+er, se aration a+ is (ranted# In effect, an ille(all+ dis&issed e& lo+ee is entitled to either reinstate&ent, if %iable, or se aration a+ if reinstate&ent is no lon(er %iable, and backwa(es# The acce ted doctrine is that se aration a+ &a+ a%ail in lieu of reinstate&ent if reinstate&ent is no lon(er ractical or in the best interest of the arties# Se aration a+ in lieu of reinstate&ent &a+ likewise be awarded if the e& lo+ee decides not to be reinstated# SECOND DIVISION PANFILO MACASERO, G.R. No. 17 !"# Petitioner PresentB - versus CDISDM4I0G !% C"airperson +32PI. M.231ES +.2.03 F TI0G3 and 03G32I. FF !!% Pro!ulgatedB /anuary ;- '--#

x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x DECISION CARPIO MORALES, J.: The services of Panfilo Macasero (petitioner) were engaged by Southern Industrial Gases Philippines (respondent co!pany) as Carbon Dioxide Bulk Tank Escort since Septe!ber "##$% &or every '(-hour wor) rendered by hi! in escorting respondent co!pany*s tan)s while they were being shipped fro! +ebu and to other areas in the ,isayas and Mindanao petitioner earned P'-aside fro! receiving transportation acco!!odation and !eal allowances% .n /anuary $ "### petitioner filed before the 0ational 1abor 2elations +o!!ission (012+) 2egional 3rbitration 4ranch 0o% ,II a +o!plaint5"6 against respondent co!pany and7or its corespondent General Manager 0eil 1indsay for illegal dis!issal with prayer for reinstate!ent bac)wages unpaid benefits and attorney*s fees alleging that in Septe!ber "##8 he was advised that his services were no longer needed and was in fact prevented fro! entering the co!pany pre!ises% In their Position Paper 5'6 respondents contended that no e!ployer-e!ployee relationship existed between respondent co!pany and petitioner because his services were only occasionally re9uired he having wor)ed '8: days in the ; years that he was connected with it< that petitioner was never sub=ect to respondent co!pany*s supervision and7or control< and that petitioner had no fixed wor) schedule hence at !ost he was an >unsupervised pakiaw or tas) wor)er%? 4y @ecision of @ece!ber : "### the 1abor 3rbiter held that petitioner was a regular e!ployee but that he was not illegally dis!issed no particulars of the fact of dis!issal having been proffered% The 1abor 3rbiter thereupon ordered respondent to pay petitioner separation pay e9uivalent to one !onth salary for every year of service plus ";th !onth pay% Petitioner appealed to the 012+ 9uestioning the co!putation of the !onetary award and the non-award of bac)wages attorney*s fees and costs of litigation% 2espondents appealed too insisting that no e!ployere!ployee relationship existed between respondent co!pany and petitioner who it clai!ed was actually an independent contractor or at best a tas) wor)er% 4y @ecision5;6 dated .ctober '8 '--' the 012+ affir!ed the labor arbiter*s ruling that petitioner was a regular e!ployee and that there was no illegal dis!issal% It however !odified the 3rbiter*s co!putation of separation pay% 3cting on the separate !otions for reconsideration of the parties the 012+ by 2esolution 5(6 of @ece!ber "$ '--; !odified the co!putation of the separation pay to one half !onth salary for every year of service thus lowering the a!ount to P"$ :--% 4y @ecision5$6 dated 3ugust "- '--A the appellate court affir!ed the 012+ !odified @ecision holding that there was no evidence to show that petitioner*s e!ploy!ent was ter!inated !uch less that the sa!e was illegal% +iting CALS Poultry Supply v. Roco 5A6 the appellate court held that petitioner failed to prove the fact of dis!issal% Petitioner*s !otion for reconsideration having been denied by 2esolution dated March "A '--: the present recourse was filed% Petitioner contends that it is respondent co!pany as the e!ployer which has the burden of proving that he was not dis!issed

SOUTHERN INDUSTRIAL GASES PHILIPPINES and/or NEIL LINDSAY, Respondents.

or if dis!issed that the dis!issal was not illegal< and that he having proved that he was dis!issed and that it was illegal he is entitled to bac)wages and reinstate!ent or separation pay of one !onth for every year of service not =ust one half !onth there being no allegation nor proof of serious financial reverses on the part of respondent co!pany% In their +o!!ent 5:6 respondents aver that the petition raises 9uestions of fact and !aintain that no e!ployer-e!ployee relationship existed between respondent co!pany and petitioner% In any event relying on C"on# $uan Tradin# v. %ational Labor Relations Co&&ission 586 respondents contend that petitioner was never given a notice of dis!issal nor was he prevented fro! returning to wor) hence there could be no illegal dis!issal% 3t the outset the +ourt notes that while it is axio!atic that only 9uestions of law can be raised in a petition for review on certiorari under 2ule ($ the sa!e is not without exceptions thusB 2ule ($ of the 2ules of +ivil Procedure provides that only 9uestions of law shall be raised in an appeal by certiorari before this +ourt% This rule however ad!its of certain exceptions na!ely (") when the findings are grounded entirely on speculations sur!ises or con=ectures< $"% &'(n )'( *n+(r(n,( -ad( *. -an*+(.)/0 -*.)a1(n, a2.3rd, or *-4o..*2/(< (;) when there is a grave abuse of discretion< (() &'(n )'( 53d6-(n) *. 2a.(d on -*.a44r(,*a)*on o+ +a,).7 ($) when the findings of fact are conflicting< (A) when in !a)ing its findings the sa!e are contrary to the ad!issions of both appellant and appellee< (:) when the findings are contrary to those of the trial court< (8) &'(n )'( +*nd*n6. ar( ,on,/3.*on. &*)'o3) ,*)a)*on o+ .4(,*+*, (8*d(n,( on &'*,' )'(0 ar( 2a.(d< (#) when the facts set forth in the petition as well as in the petitioner*s !ain and reply briefs are not disputed by the respondent< and ("-) &'(n )'( +*nd*n6. o+ +a,) ar( 4r(-*.(d on )'( .344o.(d a2.(n,( o+ (8*d(n,( and ,on)rad*,)(d 20 )'( (8*d(n,( on r(,ord. 5#6 $E!phasis supplied) 3s shall be discussed shortly a review of the records of the case and the bases of the findings of the 3rbiter the 012+ and the appellate court shows that the petition co!es within the purview of the above-highlighted exceptions hence the +ourt resolves to give it due course% There being unifor!ity in the findings of the labor tribunals and the appellate court that an e!ployer-e!ployee relationship existed between petitioner and respondent co!pany and that he was a regular e!ployee t"e only issue le't 'or deter&ination is w"et"er petitioner was dis&issed and i' in t"e a''ir&ative i' it was le#ally e''ected% 2espondents reiterate their clai! that its act of not providing wor) to petitioner starting Septe!ber "##$ was >due principally to a slu!p in the !ar)et and the dwindling de!and by the ,isayas-Mindanao clients%?5"-6 This clai! was credited by the 3rbiter the 012+ and the appellate court% The +ourt does not% In illegal dis!issal cases )'( onus o+ 4ro8*n6 )'a) )'( (-4/o0(( &a. no) d*.-*..(d or, *+ d*.-*..(d, )'a) )'( d*.-*..a/ &a. no) *//(6a/, r(.). on )'( (-4/o0(r,+a*/3r( )o d*.,'ar6( &'*,' &o3/d -(an )'a) )'( d*.-*..a/ *. no) 53.)*+*(d and, )'(r(+or(, *//(6a/%5""6

Indeed a party alleging a critical fact !ust support his allegation with substantial evidence for any decision based on unsubstantiated allegation cannot stand without offending due process% 5"'6 2espondents* clai! that there was a business slu!p hence petitioner could not be given any escorting assign!ent has re!ained =ust that% The records are bereft of any docu!entary evidence showing that it was indeed suffering losses or a decline in orders which =ustified its ad!itted failure to give assign!ents to petitioner% The appellate court ratiocinated that before respondent co!pany could be burdened with proving the legality of dis!issal >there has to be details of acts attributed to 5respondents6 constituting illegal dis!issal if only to give 5petitioner6 the opportunity to adduce evidence to defend hi!self fro! or disprove occurrence of such act or inaction ? but that petitioner failed to do so% 2espondents !ust not however only rely on the see!ing wea)ness of petitioner*s evidence but !ust stand on the !erits of their own defense% The +ourt finds incongruous the crediting by the labor tribunals and the appellate court of respondents* clai! that petitioner !ust prove the fact of his dis!issal with particularity and at the sa!e ti!e accept respondents* above-said unsubstantiated clai! that business slu!p prevented it fro! giving petitioner escorting assign!ent% Hhile both labor tribunals and the appellate court held that petitioner failed to prove the fact of his dis!issal they oddly ordered the award of separation pay in lieu of reinstate!ent in light of respondent co!pany*s >fir! stance that 5herein petitioner6 was not its e!ployee 5vis a vis6 the unflinching assertion of 5herein petitioner6 that he was which do5es6 not create a fertile ground for reinstate!ent%? It goes without saying that the award of separation pay is inconsistent with a finding that there was no illegal dis!issal for under 3rticle ':#5";6 of the 1abor +ode and as held in a catena of cases an e!ployee who is dis!issed without =ust cause and without due process is entitled to bac)wages andreinstate!ent or pay!ent of separation pay in lieu thereofB T'3., an *//(6a//0 d*.-*..(d (-4/o0(( *. (n)*)/(d )o )&o r(/*(+.: 2a,1&a6(. and r(*n.)a)(-(n). The two reliefs provided are separate and distinct% In instances where reinstate!ent is no longer feasible because of strained relations between the e!ployee and the e!ployer separation pay is granted% In effect an illegally dis!issed e!ployee is entitled to either reinstate!ent if viable or separation pay if reinstate!ent is no longer viable and bac)wages% T'( nor-a/ ,on.(93(n,(. o+ r(.4ond(n).: *//(6a/ d*.-*..a/, )'(n, ar( r(*n.)a)(-(n) &*)'o3) /o.. o+ .(n*or*)0 r*6')., and 4a0-(n) o+ 2a,1&a6(. ,o-43)(d +ro- )'( )*-( ,o-4(n.a)*on &a. &*)''(/d 34 )o )'( da)( o+ a,)3a/ r(*n.)a)(-(n). ;'(r( r(*n.)a)(-(n) *. no /on6(r 8*a2/( a. an o4)*on, .(4ara)*on 4a0 (93*8a/(n) )o on( $1% -on)' .a/ar0 +or (8(r0 0(ar o+ .(r8*,( .'o3/d 2( a&ard(d a. an a/)(rna)*8(. T'( 4a0-(n) o+ .(4ara)*on 4a0 *. *n add*)*on )o 4a0-(n) o+ 2a,1&a6(.. 5"(6 (E!phasis and underscoring supplied) 3nd in (elasco v. %ational Labor Relations Co&&ission B
5"$6

T'( a,,(4)(d do,)r*n( *. )'a) .(4ara)*on 4a0 -a0 a8a*/ *n /*(3 o+ r(*n.)a)(-(n) *+ r(*n.)a)(-(n) *. no /on6(r 4ra,)*,a/ or *n )'( 2(.) *n)(r(.) o+ )'( 4ar)*(. % Separation pay in lieu ofreinstate!ent !ay li)ewise be awarded if the e!ployee decides not to be reinstated% In fine the +ourt finds that petitioner was contrary to the conclusion of the labor tribunals and the appellate court dis!issed without =ust cause% Petitioner having been co!pelled to litigate in order to see) redress he is entitled as he had prayed early on to the award of attorney*s fees e9uivalent to "-I of the total !onetary award%

CERTIFICATION Pursuant to Section "; 3rticle ,III of the +onstitution I certify that the conclusions in the above decision had been reached in consultation before the case was assigned to the writer of the opinion of the +ourt*s @ivision%

LEONARDO <UISUM=ING Actin# C"ie' !ustice

A.

2especting petitioner*s clai! for !oral and exe!plary da!ages there being no clear showing that the dis!issal was effected in a !alevolent or oppressive !anner petitioner is not entitled thereto% ;HEREFORE the petition is GRANTED% The challenged @ecision of the +ourt of 3ppeals is SET ASIDE and a new one ENTERED declaring illegal the dis!issal of petitioner and accordingly ordering respondent co!pany to reinstate petitioner Panfilo Macasero to his for!er position as Carbon Dioxide Bulk Tank Escort without loss of seniority rights and other privileges and to pay hi! full bac)wages and other benefits fro! the ti!e his co!pensation was withheld (fro! Septe!ber "##8) up to his actual reinstate!ent as well as attorney*s fees e9uivalent to "-I of the !onetary award% Should reinstate!ent be no longer possible due to strained relations respondent co!pany is ordered to grant separation pay at one (") !onth per year of service fro! "##$-"##8% SO ORDERED%

FF

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CONCHITA CARPIO MORALES Associate !ustice

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HE +.0+D2B

LEONARDO A. <UISUM=ING Associate !ustice C"airperson


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3dditional !e!ber per Special .rder 0o% $$8 dated /anuary "$ '--# in lieu of /ustice Presbitero /% ,elasco /r% who is on official leave% 3dditional !e!ber per Special .rder 0o% $A' dated /anuary '" '--# in lieu of /ustice 3rturo @% 4rion who is on leave% 012+ records p% "% Id% at ''-('% Id% at "8"-"88% Penned by +o!!issioner Edgardo M% Enerlan and concurred in by Presiding +o!!issioner Irenea 1% +eniJa and +o!!issioner .scar S% Dy% Id% at '(#-'$'% Penned by +o!!issioner Edgardo M% Enerlan and concurred in by Presiding +o!!issioner Gerardo +% 0ograles and +o!!issioner .scar S% Dy% Penned by 3ssociate /ustice Marlene GonJales-Sison and concurred in by 3ssociate /ustices Panfilo 3barintos and Priscilla 4altaJar-Padilla% +3 rollo pp% '(--'(A%% G%2% 0o% "$-AA- /uly ;- '--' ;8$ S+23 (:#% (8$% Rollo pp% ";8-"#;% G%2% 0o% 8"(:" 3pril 'A "#8# ":' S+23 8;"% )y v. (illanueva G%2% 0o% "$:8$" /une '# '--: $'A S+23 :; 8;-8(% (ide respondents* Position Paper 012+ records p% ;;% A*+ +nternational Tradin# Corporation v. Loren,o G%2% 0o% ":;'$A .ctober # '--: $;$ S+23 ;(: ;(#% (ide $reat Sout"ern -ariti&e Services Corporation v. Acu.a G%2% 0o% "(-"8# &ebruary '8 '--$ ($' S+23 ('' (;:% 3rt% ':#% Security of Tenure% K x x x In cases of regular e!ploy!ent the e!ployer shall not ter!inate the services of an e!ployee except for a =ust cause or when authoriJed by this Title% 3n e!ployee who is un=ustly dis!issed fro! wor) shall be entitled to reinstate!ent without loss of seniority rights and other privileges and to his full bac)wages inclusive of allowances and to his other benefits or their !onetary e9uivalent co!puted fro! the ti!e his co!pensation was withheld fro! hi! up to the ti!e of his actual reinstate!ent% -t. Car&el Colle#e v. Resuena G%2% 0o% ":;-:A .ctober "'--: $;$ S+23 $"8 $("% G%2% 0o% "A"A#( /une 'A '--A (#' S+23 A8A A##%

RENATO C. CORONA Associate !ustice

MINITA V. CHICO>NA?ARIO Associate !ustice