Unbeknownst then to petitioner, respondent lodged a complaint for illegal dismissal, non-payment of

salary, 13th month pay, damages and attorney's fees with claims for reinstatement and backwages
against the company and its president, Robert L. Booth (Booth).
And in illegal termination cases, jurisprudence had underscored that the fact of dismissal must be
established by positive and overt acts of an employer indicating the intention to dismiss18 before the
burden is shifted to the employer that the dismissal was legal.19
n contrast, petitioner herein issued a Return to Work order to respondent, which the latter received Commented [AARP1]: Wed has no RTWO
through registered mail. This circumstance bears more weight and effectively negates respondent’s
self-serving asseveration that he was dismissed from employment; it more than implies that the
company still considered respondent as its employee on August 10, 2011.
In Cañete’s affidavit, for instance, she stated under oath the following circumstances: Commented [AARP2]: Affidavit is crucial

Petitioners’ filing of a complaint for illegal dismissal, irrespective of whether reinstatement or

separation pay was prayed for, could not by itself be the sole consideration in determining whether
they have been illegally dismissed. All circumstances surrounding the alleged termination should
also be taken into account.26

____________________________________________________________________________________
fair evidentiary rule dictates that before employers are burdened to prove that they did not commit
illegal dismissal, it is incumbent upon the employee to first establish by substantial evidence the fact
of his or her dismissal.1
Respondents did not even present the alleged notice of termination of their employment. Therefore,
in the absence of any showing of an overt or positive act proving that petitioner had dismissed
respondents, the latter’s claim of illegal dismissal cannot be sustained as the same would be self-
serving, conjectural and of no probative value.3
The records are devoid of any indication that they were barred from petitioner’s premises or were
otherwise deprived of any work assignment after the discontinuance of their work in PLDT-Calamba.
It was also not shown that respondents reported or even tried to report to petitioner’s office and
requested for another work assignment after being dismissed from PLDTCalamba. On the contrary,
the evidence presented by petitioner showed that they were repeatedly summoned to report to its
main office and did not even bother to show despite several notices. Moreover, the rule that the Commented [AARP3]: Wed showed up on several
employer bears the burden of proof in illegal dismissal cases finds no application in a case, like the occassions
present petition, where the employer denied having dismissed the employees.37
Under Article 27938 of the Labor Code and as settled in jurisprudence, an employee who is dismissed
without just cause and without due process is entitled to backwages and reinstatement or
payment of separation pay in lieu thereof. While we agree with the rulings of the LA and the
NLRC that respondents were not illegally dismissed and not guilty of abandonment, we do not agree
with their decisions to dismiss the case for lack of merit.

in actions for recovery of wages or where an employee was forced to litigate and, thus, incur expenses
to protect his rights and interest, the award of attorney’s fees is legally and morally justifiable."39 We
have similarly so ruled in RTG Construction, Inc., et al. v. Facto40 in which we specifically stated:

x x x Settled is the rule that in actions for recovery of wages, or where an employee was forced to
litigate and, thus, incur expenses to protect his rights and interests, a monetary award by way of
attorney's fees is justifiable under Article 111 of the Labor Code; Section 8, Rule VIII, Book III of its
Implementing Rules; and paragraph 7, Article 2208 of the Civil Code. The award of attorney's fees is
proper, and there need not be any showing that the employer acted maliciously or in bad faith when it
withheld the wages. There need only be a showing that the lawful wages were not paid accordingly.41

In the present case, however, it was settled that respondents were not illegally dismissed from
employment and their wages were not withheld without valid and legal basis. Therefore, they are not
1âwphi1

entitled to receive attorney’s fees.

Petitioners also call attention to the fact that both the Labor Arbiter and the NLRC found that petitioners
were actually dismissed when they were expressly told not to report for work on February 10, 2004
and prohibited from entering the premises of respondent NII Enterprises. It was respondents who first
mentioned and argued in their Petition for Certiorari filed before the Court of Appeals that there was
no constructive dismissal of petitioners, hence, petitioners were constrained to refute respondents'
argument. Petitioners, without admitting that they were constructively dismissed, acknowledged that
their case could also constitute constructive dismissal as petitioner Doctor filed the complaint for illegal
dismissal before the NLRC because she felt that it was already difficult, if not impossible, to continue
working for respondent Ignacio; and petitioner Lao joined Doctor in filing said complaint because he
feared that respondent Ignacio might also vent her ire on him. The appellate court, unfortunately, took
petitioners' statements on constructive dismissal out of context and dismissed their complaint for illegal
dismissal based thereon.

PIL asserted that the trial court has no jurisdiction over PIL because PIL is a foreign corporation not
doing business in the Philippines. PIL also questioned the service of summons on it.
Assuming arguendo that Klepzig is PIL’s agent in the Philippines, it was not Klepzig but De Leon
who received the summons for PIL. PIL further stated that the National Labor Relations Commission
(NLRC), and not the trial court, has jurisdiction over the subject matter of the action. It claimed that
assuming that the trial court has jurisdiction over the subject matter of the action, the complaint
should be dismissed on the ground of forum non-conveniens. Finally, PIL maintained that the
complaint does not state a cause of action because there was no perfected contract, and no
personal judgment could be rendered by the trial court against PIL because PIL is a foreign
corporation not doing business in the Philippines and there was improper service of summons on
PIL.

Todaro filed a Consolidated Opposition dated 26 August 1998 to refute PIL’s assertions. PIL filed,
still by special appearance, a Reply on 2 October 1998.

The Ruling of the Trial Court

On 4 January 1999, the trial court issued an order18 which ruled in favor of Todaro. The trial court
denied the motions to dismiss filed by PIL, PCPI, PPHI, and Klepzig.

The trial court stated that the merits of a motion to dismiss a complaint for lack of cause of action are
tested on the strength of the allegation of facts in the complaint. The trial court found that the
allegations in the complaint sufficiently establish a cause of action. The trial court declared that
Todaro’s cause of action is based on an alleged breach of a contractual obligation and an alleged
violation of Articles 19 and 21 of the Civil Code. Therefore, the cause of action does not lie within the
jurisdiction of the NLRC but with the trial court.
The trial court also asserted its jurisdiction over PIL, holding that PIL did business in the Philippines
when it entered into a contract with Todaro. Although PIL questions the service of summons on
Klepzig, whom PIL claims is not its agent, the trial court ruled that PIL failed to adduce evidence to
prove its contention. Finally, on the issue of forum non-conveniens, the trial court found that it is
more convenient to hear and decide the case in the Philippines because Todaro resides in the
Philippines and the contract allegedly breached involves employment in the Philippines.