Republic of the Philippines

COURT OF APPEALS
Manila

FOURTH DIVISION

PHILIPPINE NATIONAL CA-G.R. SP NO. 135587

GUARD SECURITY
AGENCY, INC.,
Petitioner, Members:

TIJAM, N. G.,
- versus - Chairperson,
ACOSTA, F. P., and
PERALTA, JR., E. B., JJ.
NATIONAL LABOR
RELATIONS COMMISSION Promulgated:
and DANILO TOLDANES, August 16, 2016
SR.,
Respondents.
x``````````````````````````````````````````````````````x
DECISION

PERALTA, JR., E. B., J.:

We traced the roots of the Petition for Certiorari 1

under Rule 65 of the Rules of Court from an illegal
dismissal case filed by Danilo I. Toldanes, Sr. (Toldanes)
and Leonardo P. Dasalla (Dasalla) against Philippine
National Guard Security Agency, Inc. (PNGSAI) and/or
Ildefonso S. Gervacio.

1
Rollo, pp. 3-15.
CA-G.R. SP NO. 135587
Decision 2
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Petitioner PNGSAI, a business engaged as a security

agency, hired Toldanes and Dasalla, as security guards on
September 12, 1994 and May 25, 1995, respectively.
During their employment, Toldanes and Dasalla were
deployed to petitioner's various clients, and the last
assignment was at the Chevron-Caltex Gasoline Station at
Kapasigan Street, Pasig City.2

On March 21, 2012, the contract for security services

with Chevron-Caltex expired. As a result, Toldanes and
Dasalla were relieved from their post and were put on
“floating status.”3

Toldanes and Dasalla bewailed that after more than

six (6) months and notwithstanding their frequent follow-
ups, they were not given a new post, 4 except for Dasalla,
who was offered a reliever job of about six (6) days in
October and December, 2012, but he declined the task
since his compensation would only be enough for his food
and transportation expenses.5 They likewise lamented that
petitioner assigned newly accepted security guards to
regular posts.6

Toldanes and Dasalla's desolation led to the filing7 of

an illegal dismissal case against petitioner.

Subsequently, Toldanes amended the Complaint8 on

April 8, 2013 to aver causes of action against petitioner
such as: illegal dismissal (actual and constructive), non-

2
Id. at 4, 24-25, 33.
3
Id. at 25, 60.
4
Id. at 25, 69-70.
5
Id. at 54-55.
6
Id. at 25, 54.
7
Id. at 17-18.
8
Id. at 21-23, 78.
CA-G.R. SP NO. 135587
Decision 3
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payment of rest day premium, service incentive leave, 13 th

month pay, together with a demand for refund of illegal
deductions, moral and exemplary damages, and attorney's
fee. On the other hand, Dasalla's Complaint was limited to
actual illegal dismissal, underpayment of holiday premium
pay and illegal deduction.9

Petitioner denied the illegal dismissal and maintained

that Toldanes and Dasalla's contracts for security services
with Chevron-Caltex were not renewed after March 22,
2012, and Toldanes and Dasalla were temporarily placed on
floating status pending reassignment to its other clients.10

Petitioner insisted that Toldanes reported during the

early weeks after his placement on off-detail but
subsequently failed to report despite written notices sent to
him by registered mail at his last known address which
were returned to sender as unserved. On the other hand,
Dasalla initially failed to report but when he did report to
petitioner's office at Makati, he refused all assignments
offered to him. A written notice was likewise sent to him.11

Petitioner averred that the failure of Toldanes to

report for work and refusal of Dasalla to accept all
assignments offered to him constrained petitioner to
believe that they resigned or abandoned their employment
instead of merely being absent without leave as initially
assumed by petitioner.12 Petitioner further averred that it
had no reason to terminate Toldanes and Dasalla due to
their long service with the company despite their lack of
interest to be given new assignments.13
9
Id. at 62, 78.
10
Id. at 33, 35-37.
11
Id. at 33, 36-37, 46.
12
Id. at 37, 86.
13
Id. at 33.
CA-G.R. SP NO. 135587
Decision 4
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On September 23, 2013, the Labor Arbiter rendered a

Decision,14 thusly:

“WHEREFORE, premises considered, judgment is

hereby rendered declaring complainant Leonardo P.
Dasalla to have been illegally (constructive) dismissed
and finding complainant Danilo I. Toldanes, Sr. guilty of
abandonment (sic) work.

Consequently, Philippine National Guard Security

Agency, Inc. is hereby ordered to pay LEONARDO P.
DASALLA the total amount of THREE HUNDRED
SEVENTY SIX THOUSAND SIX HUNDRED TWENTY
THREE PESOS and 15/100 (P376,623.15)
representing his separation pay computed at one month
salary per every year of service reckoned from May 25,
1995 with full backwages from the date of dismissal on
March 21, 2012 both computed until the date of
decision, the refund of cash bond and surety bond, and
to pay DANILO I. TOLDANES the total amount of
SIXTY EIGHT THOUSAND TWENTY SEVEN PESOS
and 55/100 (P68,027.55) representing his 13th month
pay, the refund of cash bond and surety bond, and
nominal damages.

The computation which is hereto attached shall

form an integral part of this decision.

All other claims are dismissed for lack of merit.

SO ORDERED.”

Apparently, it was only Toldanes who appealed to the

National Labor Relations Commission (NLRC) which later
agreed with Toldanes' submissions15 to the effect that
Toldanes was constructively dismissed as opposed to
petitioner’s defense that Toldanes abandoned his work:
14
Id. at 59-66.
15
Id. at 74-82.
CA-G.R. SP NO. 135587
Decision 5
-------------------------------

“Based from the facts of the case, appellant

Toldanes, Sr. had no deliberate intent to abandon his
employment. Respondent-appellee did not refute the
fact that after they were placed on “off-detail” status,
appellant Toldanes, Sr. reported for work on several
occasion, but, was not given any posting, which pushed
him to file the instant illegal dismissal case. “An
employee who forthwith takes steps to protest his layoff
cannot by any stretch of imagination be said to have
abandoned his work and the filing of the complaint is
proof enough of his desire to return to work, thus
negating any suggestion of abandonment.”

Considering the appellant was constructively

dismissed, he is entitled to be reinstated with full
backwages. However, due to strained relations between
appellant and herein respondent-appellees, the former is
entitled to payment of separation pay in lieu of
reinstatement equivalent to his one month salary for
every year of service from the date of his employment,
September 12, 1994, with full backwages, from the date
of his dismissal, March 21, 2012, both computed up to
the date of this Decision.

WHEREFORE, premises considered, complainant

Danilo I. Toldanes, Sr.'s appeal is hereby GRANTED.

Respondent-appellee Philippine National Guard

Security Agency, Inc. is hereby ordered to pay
complainant-appellant Danilo I. Toldanes, Sr., his
separation pay as well as his backwages, computed as
follows:

BACKWAGES
a) Basic Salary
3/21/12 – 10/03/13 = 18.43 mos.
₱426.00 x 22 x 18.43 = ₱172,725.96
10/04/13 – 12/31/13 = 2.93 mos.
₱436.00 x 22 x 2.93 = ₱28,104.56
1/1/14 – 2/6/14 = 1.17 mos.
₱451.00 x 22 x 1.17 = ₱11,608.74 ₱212,439.26
CA-G.R. SP NO. 135587
Decision 6
-------------------------------

b) 13th Month Pay

₱212,439.26/12 = ₱17,703.27

c) SILP
3/21/12 – 10/03/13 = 18.43 mos.
₱426.00 x 5/12 x 18.43 = ₱3,271.33
10/04/13 – 12/31/13 = 2.93 mos.
₱436.00 x 5/12 x 2.93 = ₱532.28
1/1/14 – 2/6/14 = 1.17 mos.
₱451.00 x 5/12 x 1.17 = ₱219.86 ₱4,023.47 ₱234,166.00

SEPARATION PAY
9/12/94 – 2/6/14 = 19 yrs.
₱451.00 x 22 x 19 = ₱188,518.00
TOTAL AWARD ₱422,684.00
=========

SO ORDERED.”16

Aggrieved by the outcome of Toldanes' appeal,

petitioner moved for reconsideration but the NLRC
remained steadfast.17

In the Petition before Us, We will tackle the sole issue

insofar as what was ascribed by petitioner against the NLRC
when the appellate tribunal supposedly disregarded the
proof of service of notices to report addressed to private
respondent Toldanes.18

The settled rule in labor cases is that the employer

has the burden of proving that the employee was not
dismissed, or, if dismissed, that the dismissal was not
illegal, and failure to discharge the onus would mean that
the dismissal is unwarranted and, therefore, illegal.19

16
Id. at 80-82.
17
Id. at 88-90.
18
Id. at 6.
19
Dup Sound Phils., et al. v. Court of Appeals, et al., G.R. No. 168317, November
21, 2011.
CA-G.R. SP NO. 135587
Decision 7
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Indeed, the onus probandi was on the petitioner

herein to substantiate its claim that Toldanes was never
terminated but merely placed on floating status, and that
he failed to report to petitioner's office for his reassignment
or abandoned his job despite notices sent to him through
registered mail.20

We do not agree with petitioner's arguments that

Toldanes was not terminated inasmuch as it was
established that Toldanes had been placed on “floating
status” by petitioner for more than six (6) months,
reckoned from March 21, 2012, and he was therefore
deemed to have been constructively dismissed.

In this regard, Vicente C. Tatel v. JLFP Investigation

Security Agency, Inc., et al.21 will be legally consequential
since it was elucidated therein that placing an employee on
temporary "off-detail" is not equivalent to dismissal
provided that such temporary inactivity should continue
only for a period of six (6) months. In security agency
parlance, being placed "off-detail" or on "floating status"
means "waiting to be posted."

Temporary "off-detail" or "floating status" is the period

of time when security guards are in between assignments
or when they are made to wait after being relieved from a
previous post until they are transferred to a new one. It
takes place when the security agency's clients decide not to
renew their contracts with the agency, resulting in a
situation where the available posts under its existing
contracts are less than the number of guards in its roster.
It also happens in instances where contracts for security

20
Rollo, pp. 36-37.
21
G.R. No. 206942, February 25, 2015, citing Superstar Security Agency, Inc.
and/or Col. Andrada v. NLRC, 262 Phil. 930, 934-935 (1990).
CA-G.R. SP NO. 135587
Decision 8
-------------------------------

services stipulate that the client may request the agency

for the replacement of the guards assigned to it even for
want of cause, such that the replaced security guard may
be placed on temporary "off-detail" if there are no available
posts under the agency's existing contracts. During such
time, the security guard does not receive any salary or any
financial assistance provided by law. It does not constitute
a dismissal, as the assignments primarily depend on the
contracts entered into by the security agencies with third
parties, so long as such status does not continue beyond a
reasonable time. When such a "floating status" lasts
for more than six (6) months, the employee may be
considered to have been constructively dismissed.22

Notwithstanding the apparent liability of petitioner for

constructive dismissal by allowing Toldanes to drift in limbo
for an unconscionable period, petitioner still insisted that it
was Toldanes who abandoned his job as he failed to report
for work despite notices sent to him through registered
mail.23

While such assumed demeanor can trigger severance

from service, We are not unmindful of case law that to
constitute abandonment, it is essential that an employee
failed to report for work without any valid and justifiable
reason and that he had a clear intention to sever the
employment relationship by some overt act.24

For a valid finding of abandonment, two (2) elements

must concur, namely: (a) the failure to report for work or
22
Tatel v. JLFP Investigation Security Agency, Inc., et al., G.R. No. 206942,
February 25, 2015, citing Salvaloza v. NLRC, G.R. No. 182086, November 24,
2010, 636 SCRA 184, 197-198.
23
Rollo, page 33.
24
Litex Glass and Aluminum Supply, et al. v. Sanchez, G.R. No. 198465, April 22,
2015.
CA-G.R. SP NO. 135587
Decision 9
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absence without valid or justifiable reason; and (b) clear

intention to sever the employer-employee relationship, with
the second element as the more determinative factor being
manifested by the some overt acts25 from which it may be
deduced that the employee has no more intention to
work.26 Mere absence or failure to report to work, even
after notice to return, is not tantamount to abandonment. 27
The employer has the burden of proof to show a deliberate
and unjustified refusal of the employee to resume his
employment without any intention of returning. 28
Abandonment is incompatible with constructive dismissal.29

In the situation at hand, there was no deliberate

intent on the part of Toldanes to abandon his work
inasmuch as Toldanes even reported to petitioner's office
for two weeks after his off-detail but no regular assignment
was given to Toldanes by petitioner.30

Furthermore, the theory of abandonment espoused by

petitioner was highly improbable, given his length of
service. It was virtually unthinkable and illogical for
Toldanes, who had worked with petitioner for almost 18
years, would just abandon his work and forego whatever
benefits he may be entitled to as a consequence thereof.

An employee who forthwith takes steps to protest his

layoff cannot, as a general rule, be said to have abandoned
his work, and the filing of the Complaint is proof enough of
his desire to return to work, thus, negating any suggestion
25
Baron, et al. v. EPE Transport, Inc., et al., G.R. No. 202645, August 5, 2015.
26
Protective Maximum Security Agency, Inc. v. Fuentes, G.R. No. 169303,
February 11, 2015.
27
Manarpiis v. Texan Philippines, Inc., et al., G.R. No. 197011, January 28, 2015.
28
Baron, et al. v. EPE Transport, Inc., et al., supra; Litex Glass and Aluminum
Supply, et al. v. Sanchez, supra.
29
Tatel v. JLFP Investigation Security Agency, Inc., et al., supra.
30
Rollo, pp. 33, 54.
CA-G.R. SP NO. 135587
Decision 10
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of abandonment.31 As this Court sees it, it was simply

incongruent for Toldanes to refuse any offer of an
assignment and thereafter, seek redress by filing a case for
illegal dismissal.32 The filing of the instant case below
dispelled any presumed intention on the part of Toldanes to
forego or abandon his employment. Human experience
dictates that no employee in his right mind would go
through the trouble of filing a case unless the employer had
indeed terminated the services of the employee.33

Despite the improbability of its proposition, petitioner

pressed the advocacy that notices 34 were sent to Toldanes,
as evidenced by registry receipts, although the mail
matters were ineffectual. As can be gleaned from
petitioner’s Position Paper,35 petitioner relayed that
Toldanes supposedly failed to provide his precise
whereabouts but this suggestion was repudiated by
Toldanes who even underscored that his cellphone number
remained the same and that he continues to use it up to
the present.36

Moreover, with reference to the notices37 dated July

16, 2012, August 23, 2012 and September 10, 2012,
although petitioner managed to present a Registry Return
Receipt,38 it was bereft of further detail as to the document
that it described, especially so when jurisprudence reminds
Us that receipts for registered letters and return receipts do
not prove themselves, they must be properly authenticated
31
Tatel v. JLFP Investigation Security Agency, Inc., et al., supra.
32
Supra.
33
Stanley Fine Furniture, et al. v. Gallano, et al., G.R. No. 190486, November 26,
2014.
34
Rollo, pp. 50-53.
35
Id. at 33.
36
Id. at 55.
37
Id. at 51-53.
38
Id. at 49.
CA-G.R. SP NO. 135587
Decision 11
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in order to serve as proof of receipt of the letters. 39 Verily,

"it is the registry receipt issued by the mailing office and
the affidavit of the person mailing, which proves service
made through registered mail."40 Absent one or the other,
or worse both, there is no proof of service.41

Along this line, and yes, as aptly observed by the

NLRC, relative to what petitioner proffered as the four (4)
memoranda, allegedly sent to Toldanes:

“… aside from the Registry Return Receipt which does

not indicate to what mail matter it referred to, there is
no proof that the other memoranda were sent to the
appellant. Thus, as correctly observed by appellant
Toldanes, Sr., the presumption of regularity should not
apply with regard to the memoranda, since they were
belatedly submitted and presented as evidence in their
defense.”42

As such, We did not encounter any grave abuse of

discretion on the part of the public respondent. In labor
disputes, grave abuse of discretion may be ascribed to the
NLRC when, inter alia, its findings and the conclusions
reached thereby are not supported by substantial evidence.
This requirement is clearly expressed in Section 5, Rule 133
of the Rules of Court which provides that in cases filed
before administrative or quasi-judicial bodies, a fact may be
deemed established if it is supported by substantial
evidence or that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a
conclusion.43
39
Republic vs. Resins, Inc., G.R. No. 175891, January 12, 2011, citing Ting v.
Court of Appeals, 398 Phil. 481, 493 (2000) citing Central Trust Co. v. City of
Des Moines, 218 NW 580 (1928).
40
Supra.
41
Supra, citing Cruz v. Court of Appeals, 436 Phil. 641, 652 (2002).
42
Rollo, page 80.
43
Peralta, Jr., Perspectives of Evidence, 2005 Edition, page 348.
CA-G.R. SP NO. 135587
Decision 12
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WHEREFORE, premises considered, the instant

Petition for Certiorari is hereby DISMISSED for lack of
merit.

SO ORDERED.

EDUARDO B. PERALTA, JR.

Associate Justice

WE CONCUR:

NOEL G. TIJAM FRANCISCO P. ACOSTA

Associate Justice Associate Justice

CERTIFICATION

Pursuant to Article VIII, Section 13 of the Constitution,

it is hereby certified that the conclusions in the above
decision were reached in consultation before the case was
assigned to the writer of the opinion of the Court.

NOEL G. TIJAM
Chairperson, Fourth Division