Published — June 1, 2022
The following post does not create a lawyer-client relationship between Alburo Alburo and Associates Law Offices (or any of its lawyers) and the reader. It is still best for you to engage the services of your own lawyer to address your legal concerns, if any.
Also, the matters contained in the following were written in accordance with the law, rules, and jurisprudence prevailing at the time of writing and posting, and do not include any future developments on the subject matter under discussion.
Related article regarding finding illegal dismissal of employer: Knowing the Legal Effects of a Finding of Illegal Dismissal
In illegal dismissal cases, the employer has the burden of proving that the termination was for a valid or authorized cause. This means that the ground for the dismissal of the employee is one of those just or authorized causes enumerated under Articles 297 or 298 of the Labor Code of the Philippines, respectively. However, before such burden of proof is assumed by the employer, it is first incumbent upon an employee to establish by substantial evidence the fact of his dismissal from employment through display of positive and overt acts of an employer indicating the intention to dismiss (Tri-C General Services, Inc. vs. Matuto 771 SCRA 381, September 23, 2015 and Expedition Construction Corporation vs. Africa 849 SCRA 327, December 14, 2017). Furthermore, in proving that the fact of termination or dismissal from employment, it must be noted that the evidence must be clear, positive and convincing. Mere allegation is not proof or evidence (Villanueva v. Philippine Daily Inquirer, Inc 605 Phil. 926, 937 [2009]).
In the case of Exodus International Construction Corp. and Javalera vs. Biscocho et. al., (G.R. No. 166109, February 23, 2011), the Supreme Court unequivocally stated –
“[T]his Court is not unmindful of the rule that in cases of illegal dismissal, the employer bears the burden of proof to prove that the termination was for a valid or authorized cause.” But “[b]efore the [petitioners] must bear the burden of proving that the dismissal was legal, [the respondents] must first establish by substantial evidence” that indeed they were dismissed. “[I]f there is no dismissal, then there can be no question as to the legality or illegality thereof.”
There was no dismissal in this case, hence, there is no question that can be entertained regarding its legality or illegality.
As found by the Labor Arbiter, there was no evidence that respondents were dismissed nor were they prevented from returning to their work. It was only respondents’ unsubstantiated conclusion that they were dismissed.”
In view of the cited proclamation of the Supreme Court, the employee therefore is duty bound to prove his claim that there was dismissal. Moreover, it has been further explained in the case of Dee Jay’s Inn and Café vs. Rañeses (805 SCRA 143, October 05, 2016) that –
“While the general rule in dismissal cases is that the employer has the burden to prove the dismissal was for just or authorized causes and after due process, said burden is necessarily shifted to the employee if the alleged dismissal is denied by the employer because a dismissal is supposedly a positive and unequivocal act by the employer. Accordingly, it is the employee that bears the burden of proving that in fact he was dismissed. An unsubstantiated allegation on the part of the employee cannot stand as the same offends due process.”
Positive and Overt Acts of An Employer Indicating Intention to Dismiss
As previously stated in this article, dismissal from employment must be established by positive and overt acts clearly indicative of a manifest intention to dismiss. This critical affirmative fact must be proved by the party alleging the same with substantial evidence (Carique vs. Philippine Scout Veterans Security and Investigation Agency, Inc. 770 SCRA 567, September 16, 2015). If no positive or direct evidence was adduced to show that the employee was indeed dismissed from employment, either factually or constructively, the case for illegal dismissal must be dismissed.
In the realm of Criminal Law, overt or external act has been defined as some physical activity or deed, indicating the intention to commit a particular crime, more than a mere planning or preparation, which if carried out to its complete termination following its natural course, without being frustrated by external obstacles nor by the voluntary desistance of the perpetrator, will logically and necessarily ripen into a concrete offense (Rait vs. People 560 SCRA 785, July 31, 2008). Harmonizing the said definition to the fact that positive and overt acts of employment’s intention to terminate an employee is required in proving fact of dismissal, the employee must prove that indeed, physical manifestation of intention to dismiss him or her took place, this could be substantiated and proven by notices or letters of dismissal. But, are the written or electronic notices or letters of dismissal only considered as overt or physical manifestation of employer’s intention to dismiss? The answer is NO.
In the 2013 case of Ang vs. San Joaquin, Jr., we were given a scenario where two (2) employees, namely, San Joaquin and Fernandez both testified against their employer (Ang) in a case lodged against the latter. One day, a heated argument between San Joaquin and Ang’s wife, Rosa took place. Upon reporting for work two days later, San Joaquin found out that his daily time record (DTR) was torn into pieces by their employer, Ang. The DTR of Fernandez also suffered the same fate after they testified in Court. On the Illegal Dismissal case filed by San Joaquin and Fernandez against their employer, they ratiocinated that they were denied procedural due process because no notices to explain or dismissal were ever sent to them.
The employer Ang, did not deny the fact of dismissal, however, the court noted that by destroying respondents’ time cards, employer Ang discontinued and severed his relationship with San Joaquin and Fernandez. This is because the purpose of a time record is to show an employee’s attendance in office for work and to be paid accordingly, taking into account the policy of “no work, no pay”. A daily time record is primarily intended to prevent damage or loss to the employer, which could result in instances where it pays an employee for no work done; it is a mandatory requirement for inclusion in the payroll, and in the absence of an employment agreement, it constitutes evidence of employment. Thus, when employer Ang tore his employees’ time cards to pieces, he virtually removed them from payroll and erased all vestiges of San Joaquin and Fernandez’s employment. They were, in effect, dismissed from work. The Supreme Court further ruled, through Justice Mariano Del Castillo that, the act may be considered an outright – not only symbolic – termination of the parties’ employment relationship.
Hence, while the employer’s interest is equally important as that of the employees (Innodata Knowledge Services, Inc. vs. Inting 848 SCRA 106, December 06, 2017) and that the law is fair and just to both labor and management (Reyes-Rayel vs. Philippine Luen Thai Holdings, Corporation 676 SCRA 183, July 11, 2012). The law is still strict in its requirement that all employees must be dismissed by the employer through the latter’s compliance with both substantive and procedural due process. Furthermore, our laws do not adhere with the vindictive nature and oppressive conducts of employers, as well as reckless disregard for employee’s rights, after all, it is a cardinal rule in labor cases, that in case of doubts in the evidence presented by the parties, the doubts should be resolved in favor of labor (Malabunga, Jr. vs. Cathay Pacific Steel Corporation 757 SCRA 501, June 15, 2015).
Alburo Alburo and Associates Law Offices specializes in business law and labor law consulting. For inquiries, you may reach us at info@alburolaw.com, or dial us at (02)7745-4391/0917-5772207.
All rights reserved.
SUBSCRIBE NOW FOR MORE LEGAL UPDATES!
[email-subscribers-form id=”4″]
Like!! Thank you for publishing this awesome article.