[BURDEN OF PROOF] (1) the security report of SG Dominador Calibo stating that Lumahan

WATCHMAN VS. LUMAHAN abandoned his post, and that Nightowl appointed a replacement on
October 14, 2015 | BRION, J. April 22, 1999; and
(2) the lack of evidence to support Lumahan's allegations.
Petitioner/s: Nightowl Watchman & Security Agency, Inc.  Lumahan was entitled to his money claims because Nightowl failed to rebut
Respondents: Nestor Lumahan them.

Doctrine: In every employee dismissal case, the employer bears the burden of 6. NLRC appeal by both: remanded the case to LA because it believed that there
proving the validity of the employee's dismissal (i.e. existence of just or authorized were factual matters that needed to be considered further.
cause for the dismissal and the observance of the due process requirements). The
employer's burden of proof, presupposes that the employee had in fact been 7. LA 2nd ruling: Lumahan had been illegally dismissed, and ordered Nightowl to pay
dismissed, with the burden to prove the fact of dismissal resting on the employee. backwages and separation pay in lieu of reinstatement.
Without any dismissal action on the part of the employer, valid or otherwise, no  dismissed Lumahan's other money claims for lack of merit.
burden to prove just or authorized cause arises.  LA presumed from the payroll slips submitted by Nightowl that Lumahan
worked from April 16, 1999-April 30, 1999; to him, these slips showed that
Facts: Lumahan was paid for his services covering such period.
1. December 1996: Nightowl hired Nestor Lumahan as a security guard. o not convinced that Lumahan absented himself from May 1, 1999 to
 His last assignment was at the Steelworld Manufacturing Corp. (Steelworld). May 15, 1999 because Nightowl did not present the payroll slips for
this period.
2. January 9, 2000: Lumahan filed before LA a complaint for illegal dismissal (among  no abandonment of work took place because intent was not abolished
others)1 against Nightowl and/or Engr. Raymundo Lopez.
 March 10, 2000: he filed an amended complaint to include nonpayment of 8. NLRC appeal by Nightowl: granted Nightowl's appeal; set aside and reversed the
13th month pay and illegal suspension. LA’s 2nd ruling; dismissed the complaint for illegal dismissal; deleted the award of
o also corrected his date of employment and the date of his dismissal backwages and separation pay in lieu of reinstatement; and affirmed the dismissal of
from May-June 9, 1999. the money claims.
 no evidence showing that Lumahan had been dismissed, what happened
3. Lumahan pleadings: was an "informal voluntary termination of employment"
 admitted he did not report for work from May 16-June 8, 1999  Lumahan failed to sign the payroll slip for the period covering April 16-30,
 claimed he had to go to Iloilo to attend to his dying grandfather. 1999, thereby surmising that he only worked until April 22, 1999.
 when he asked for permission to go on leave, Nightowl refused. Steelworld  Lumahan's inconsistent claims on the date of his dismissal pointed towards
gave him permission, but when he reported back to work on June 9, the theory that actual dismissal did not take place.
Nightowl did not allow him to return to duty  Lumahan indicated his intention to sever his employment when he persisted
in leaving for Iloilo despite Nightowl's refusal.
4. Nightowl’s claim:
 on April 22, Lumahan left his post at Steelworld and failed to report back to 9. Lumahan’s NLRC MoR was denied.
work since then. 10. CA Ruling: granted Lumahan's certiorari, found GAD on NLRC.
 it never dismissed Lumahan and that he only resurfaced when he filed the  Nightowl failed to discharge its burden of proving that Lumahan unjustly
present complaint. refused to return to work.
o fact that Lumahan did not receive any notice shows that Nightowl
5. LA’s Ruling: dismissed the complaint for illegal dismissal, separation pay, and had no valid cause to terminate Lumahan's employment; hence,
damages, but ordered Nightowl and/or Engr. Raymundo Lopez to jointly and solidarity Lumahan was illegally dismissed.
pay Lumahan wage differentials, 13th month pay differentials, service incentive leave,  awarded backwages reckoned from the time Lumahan was illegally
holiday pay, premium pay for holiday and rest day differentials, and OT pay dismissed on June 9, 1999, and ordered the payment of separation pay in
 Lumahan had not been dismissed so he could not claim that it was illegally lieu of reinstatement.
done.
 Above was justified by: 11. Nightowl’s CA MoR was denied. Hence this petition.

Issues/Ruling:
1. (PROCEDURAL) WON Nightowl’s petition is procedurally defective which
1
underpayment of wages; nonpayment of overtime pay, premium pay for holiday and rest day,
warrants outright dismissal – NO.
holiday pay, and service incentive leave; separation pay; damages and attorney's fees
Lumahan CLAIMS: Nightowl failed to attach as annexes the certified true copies of (a) CA missed the crucial point when it presumed that Lumahan had actually been
the parties' position papers, replies, rejoinders, and appeal memorandums filed dismissed. NLRC's approach of first evaluating WON employee had been dismissed
before the NLRC, as well as the petition for certiorari , comment, and memorandum is correct, and find that it committed no GAD in factually concluding that Lumahan had
filed with the CA. not been dismissed from work.
 Nightowl failed to implead the CA as public respondent
(b) degree of evidence required to be met is substantial evidence2
 In a situation where the word of another party is taken against the other, as
RULE: in this case, we must rely on substantial evidence because a party alleging a
Section 4, Rule 45, ROC critical fact must duly substantiate and support its allegation
"[t]he petition shall x x x be accompanied by a clearly legible duplicate original, or a certified  As such, SC agrees with NLRC that Lumahan stopped reporting for work on
true copy of the judgment or final order or resolution certified by the clerk of court a quo and April 22, 1999, and never returned, as Nightowl sufficiently supported this
the requisite number of plain copies thereof, and such material portions of the records as position with documentary evidence.
would support the petition; and x x x."
 Lumahan failed to refute, with supporting evidence, the contention that he
"[t]he petition shall x x x state the full name of the appealing party as the petitioner and the did not report for work on April 22, 1999, and failed as well to prove that he
adverse party, as respondent, without impleading the lower courts or judges thereof either continued working from such date to May 15, 1999.
as petitioners or respondents x x x." o He only established that he did not work from May 16, 1999- June
8, 1999 (after the substantially proven fact he already stopped
APPLY: working on April 22, 1999)
 a petition for review on certiorari does not require the attachment of all the  Lumahan also failed to substantiate he was constructively dismissed when
pleadings the parties filed before the lower tribunals. Only the judgment or Nightowl allegedly refused to accept him back when he allegedly reported for
final order must be attached, plus supporting material records. work from April 22-June 9, 1999.
o Lumahan was not even sure of the actual date of his alleged
 unlike a petition for certiorari under Rule 65, it also does not require that the dismissal..
court a quo be impleaded. o payroll slips on record were not offered by Lumahan as evidence to
support his position; rather, they were offered by Nightowl to prove
Thus, an outright dismissal is not correct. that Lumahan was not underpaid.
 Bec this is a Rule 45 case of CA’s rule 65 review, petition is a determination o non-submission of payroll slips dated May 1999 and onwards
of the presence or absence of GAD in the NLRC decision before it, not on cannot be taken against Nightowl precisely because Lumahan
the basis of WON NLRC decision is intrinsically correct on its merits.. never came back (consistent with the "no-work-no-pay" principle)
 Underlying this is the eneral jurisdictional limitation of a Rule 45 petition that
restricts the Court's inquiry to questions of law 3. WON there was abandonment of work3 – NONE.
o the issue here presented mixed questions of fact and law, with the  As no dismissal was carried out, any consideration of abandonment - as a
real issue being one of fact - whether Lumahan was dismissed from defense raised by an employer in dismissal situations -was clearly
service. SC generally cannot address this issue. misplaced.
o By way of exception, the Court can address this.  for the employer "to successfully invoke abandonment, whether as a ground
for dismissing an employee or as a defense, the employer bears the burden
of proving the employee's unjustified refusal to resume his employment."
2. (SUBSTANTIVE TOPIC) WON CA erred in finding GAD in the NLRC decision, This burden, of course, proceeds from the general rule that places the
and instead ruled Lumahan was illegally dismissed – YES. burden on the employer to prove the validity of the dismissal.
 Nightowl did not even raise the defense of abandonment. It only stated that
RULE: In every employee dismissal case, the employer bears the burden of proving they were waiting for Lumahan to show up again but he never did.
the validity of the employee's dismissal ( existence of just or authorized cause for the  failure to send notices to Lumahan to report back to work should not be
dismissal and the observance of the due process requirements) taken against Nightowl despite the fact that it would have been prudent
 The employer's burden of proof, presupposes that the employee had in fact
been dismissed, with the burden to prove the fact of dismissal resting on the
employee.
 Without any dismissal action on the part of the employer, valid or otherwise, 2
such amount of relevant evidence that a reasonable mind might accept as adequate to justify
no burden to prove just or authorized cause arises. a conclusion
3
Abandonment: deliberate and unjustified refusal of an employee to resume his employment.
APPLY: there was no dismissal. CA should not have immediately tackled the defense
It is a form of neglect of duty that constitutes just cause for the employer to dismiss the
that there was abandonment.
employee.
 o Report-to-work notices are required by procedural due process only
in situations involving the dismissal, or the possibility of dismissal,
of the employee.

4. WON award of separation pay in lieu of reinstatement is proper – YES.

APPLY:
 considering that more than 10 years has already passed from the time
Lumahan stopped reporting for work on April 22, 1999, up to this date, it is
no longer possible and reasonable for Nightowl to reinstate Lumahan in its
service.
 Award instead of separation pay in an amount equivalent to 1 month pay for
every year of service, computed up to the time he stopped working, or until
April 22, 1999 to Lumahan.

Dispositive
WHEREFORE, we GRANT IN PART the petition; we REVERSE and SET ASIDE the
September 18, 2013 Decision and the April 4, 2014 resolution of the Court of Appeals
in CA-G.R. SP No. 117982. We REINSTATE the August 31, 2010 decision of the
National Labor Relations Commission with the following MODIFICATION: Nightowl is
ordered to pay Lumahan separation pay, in lieu of reinstatement, equivalent to one
(1) month pay for every year of service, computed up to the time he stopped working,
or until April 22, 1999.