Reinstatement without backwages is the remedy if the employees were not illegally dismissed but also did not abandon their jobs. Where reinstatement was already impossible by reason of the strained relations of the parties, and the fact that the employees already found another employment, each party must bear his or her own loss, thus, placing them on equal footing.

Thus, the SC ruled in a November 20, 2017 case, as follows:

Froel M. Pu-Od, et al. vs. Ablaze Builders, Inc.
G.R. No. 230791, November 20, 2017


Ablaze Builders, Inc., is engaged in the construction business. It has been its practice to hire construction workers, foreman, and other personnel on per project basis. Ablaze, et al. hired Pu-Od et al. on different dates, positions and daily salaries.

Sometime in June 2013, Ablaze hired Pu-Od et al. to work in its project located at Roces Avenue, Quezon City (QC Project), specifically for the finishing phase. Thereafter, a project engineer of Ablaze allegedly told Pu-Od et al. that they are already terminated from their employment because there was no more work to be done, even if in reality, the phase on which they were working on was not yet completed.

Aggrieved by the verbal dismissal, Pu-Od et al. filed a complaint for illegal dismissal, against Ablaze, et al. before the Labor Arbiter (LA). Pu-Od et al. admitted that they no longer chose to be reinstated due to the strained relationship of the parties.

Pu-Od et al. averred, among others, that Ablaze, et al. unceremoniously terminated their employment without giving them an opportunity to explain their side. They maintained that they are entitled to their money claims.

Ablaze, et al., on the other hand, alleged that the company did not terminate Pu-Od et al.’s employment, but rather, this is a case of abandonment of work on the part of Pu-Od et al. Ablaze, et al. likewise claimed that sometime in February 2014, after the resignation of its project site engineer, Pu-Od et al. stopped appearing for work, which caused delay in the turnover of the project to Ablaze’s client.

Consequently, Ablaze, had not yet been fully paid by its client due to discussions on penalties. Ablaze made efforts in communicating with Pu-Od et al., specifically, through complainant Layaona, but to no avail. As a result, Ablaze was compelled to engage the services of other personnel for the completion of the QC project.

Ablaze, et al. further alleged that the company never heard from Pu-Od et al. again, except on the information given by Engr. Calma to the effect that Pu-Od et al. have already accepted employment at another construction company. Ablaze, et al. submitted the affidavits of Engr. Calma and Engr. Pedro Bacalso, Jr. (Engr. Bacalso, Jr.) who were the project site engineers at the time Pu-Od et al. were assigned to the QC project.

The engineers denied under oath that either of them informed Pu-Od et al. of their alleged verbal dismissal.

LA Ruling:

The LA rendered a decision against Pu-Od et al., thereby dismissing their complaint. The LA ruled that there was no dismissal, actual or constructive, committed by Ablaze, et al., since Pu-Od et al. have failed to substantiate their allegation of the fact of dismissal. The LA denied their money claims.

Pu-Od et al. filed a Memorandum of Appeal with Notice of Appeal before the National Labor Relations Commission (NLRC), questioning the LA’s decision.

NLRC Ruling;

The NLRC issued a resolution, in favor of Pu-Od et al., thereby reversing the LA’s decision. The NLRC held Ablaze, et al. liable to pay Pu-Od et al. their backwages and separation pay.

Ablaze, et al. filed a Motion for Extension of Time to File Motion for Reconsideration with Substitution of Counsel, stating therein that: (1) they received a copy of the NLRC’s decision on July 31, 2015; (2) they terminated the legal services of their previous lawyer, Atty. Michael M. Racelis, and hired Malcolm Law as their new counsel; and, (3) due to lack of material time, volume and pressure of work, they cannot complete the motion within the period allowed by the 2011 NLRC Rules of Procedure.

Subsequently, Ablaze, et al. filed a Motion for Reconsideration, on August 20, 2015, arguing, among others, that: since there was no proper service of Pu-Od et al.’s Memorandum of Appeal with Notice of Appeal to Ablaze, et al., there was no perfected appeal, hence, the LA’s decision has attained finality; Pu-Od et al. proffered no evidence that they were either dismissed from employment or that they were prevented from returning to work or otherwise deprived of any work assignment; and, Pu-Od et al. are not entitled to backwages and separation pay since they failed to prove that they were illegally dismissed.

Both motions, however, were denied by the NLRC. The NLRC ruled that the motion for extension was denied since the substitution of counsel was not a valid ground to extend the period to file a motion for reconsideration. Consequently, the motion for reconsideration proper was deemed to have been filed out of time.

Unfazed, Ablaze, et al. elevated the matter to the CA by filing a Petition for Certiorari under Rule 65 of the Rules of Court, urgently praying for a Temporary Restraining Order and/or Writ of Preliminary lnjunction.

CA Ruling:

The CA rendered a decision granting the petition and reversing the NLRC decision.

The CA brushed aside technicalities and ruled that the NLRC is given the discretion to exercise liberality to enable it to ascertain the facts of the case speedily and objectively without any ill intent to wear out the laborer’s resources. The CA found that Ablaze, et al. were not in any way motivated to unnecessarily delay the resolution of the case. The CA likewise ruled that Pu-Od et al. failed to establish the fact of their dismissal and that they abandoned their employment.

Ablaze, et al.’s motion for reconsideration was denied. Thus, they filed the petition before the SC.


Whether or not a denied Motion for Extension to file Memorandum of Appeal with the NLRC renders the filing of the appeal out of time.

Whether or not backwages should be paid to employees who did not abandon his job but was not also dismissed from service.

Whether or not the employee who opted not to be reinstated is entitled to separation pay.

Whether or not parties must bear their own loss in cases where there is no dismissal and no abandonment of work

SC Ruling:

The SC did not find merit in the petition.

The SC held that the 2011 NLRC Rules of Procedure mandate that a motion for reconsideration of the NLRC decision must be filed within 10 calendar days from receipt of said decision, otherwise, the decision shall become final and executory.

Guide to Valid Dismissal of Employees Second Edition

The SC further held that despite procedural lapses, fundamental consideration of substantial justice may warrant the resolution of a case on the merits rather than dismiss it on a technicality.

No undue sympathy is to be accorded to any claim of procedural misstep, the idea being that the power to decide cases must be exercised according to justice and equity and substantial merits of the controversy, in order to avoid further delay.

Likewise, the NLRC is not restricted by the technical rules of procedure and is allowed to be liberal in the application of its rules in hearing and deciding labor cases.

The SC was persuaded that the rigid rules of procedure must give way to the demands of substantial justice, and that the case must be decided on the merits. Party litigants must be accorded the amplest opportunity for the proper and just determination of their causes, free from the constraints of needless technicalities, especially so in this case where the varying and conflicting factual deliberations of the LA, the NLRC and the CA are factored in.

Thus, per SC, the CA committed no error when it admitted Ablaze’s petition for certiorari, and had jurisdiction over said petition.

The rule in labor cases is that the employer has the burden of proving that the termination was for a valid or authorized cause. However, it remains incumbent upon the employees that they should first establish by competent evidence the fact of their dismissal from employment.

Since an allegation is not evidence, it is elementary that a party alleging a critical fact must support his allegation with substantial evidence. It has also been held that the evidence to prove the fact of dismissal must be clear, positive and convincing.

Stated otherwise, in cases of illegal dismissal, before the employer must bear the burden of proof to establish that the termination was for a valid or authorized cause, the employees must first prove by substantial evidence the fact of their dismissal from service. Logically, if there is no dismissal, then there can be no question as to the legality or illegality thereof, as in this case.

Here, the SC found no ample evidence to establish a prima facie case that Pu-Od et al. were dismissed from employment. That they were told by one of Ablaze’s project engineer that their employment has been terminated since there is no more work to be done is at best, speculative. The identity of the project engineer was not revealed. There is even no proof that Ablaze, et al. authorized the unnamed project engineer, or any project engineer for that matter, to notify Pu-Od et al. of their alleged dismissal.

Pu-Od et al. were likewise inconsistent as to the date of their alleged employment and under what particular circumstance were they dismissed from employment. Ablaze, et al., on the other hand, presented affidavits executed by their project engineers, Engr. Calma and Engr. Bacalso, Jr., who adamantly denied that they eased Pu-Od et al. out of their employment.

The records are likewise bereft of any indication that Pu-Od et al. were barred from Ablaze’s premises or were otherwise deprived of any work assignment after the alleged verbal dismissal. On the contrary, the evidence showed that Ablaze, et al. tried to contact them, but its effort was to no avail. Consequently, Ablaze, et al. learned that Pu-Od et al. were already reporting for work in another construction company.

Thus, in the absence of any showing of an overt or positive act proving that Ablaze, et al. had dismissed Pu-Od et al., the latter’s claim of illegal dismissal cannot be sustained as the same would be self-serving, conjectural and of no probative value.

The Court also found that Pu-Od et al. did not abandon their employment, as erroneously claimed by the Ablaze, et al. Abandonment is a matter of intention and cannot lightly be presumed from certain equivocal acts. It is incumbent upon the employer to prove the two elements that must concur in order for an act to constitute abandonment:

First, Ablaze, et al. must provide evidence that Pu-Od et al. failed to report for work for an unjustifiable reason. Second, Ablaze, et al. must prove Pu-Od et al.’s overt acts showing a clear intention to sever their ties with their employer, with the second element as the more determinative factor, and being manifested by some overt acts.

The record shows that Ablaze, et al. proffered nothing beyond bare allegations to prove that Pu-Od et al. had abandoned their employment. Although Ablaze, et al. made an effort in requiring Pu-Od et al. to return to work, there was neither proof that Pu-Od et al.’s failure to comply with the same was for an unjustifiable reason; nor was there any proof that Pu-Od et al.’s absence amounted to a clear intention to sever their employment. Indeed, the mere absence or failure to report for work, even after notice to return, does not necessarily amount to abandonment.

Verily, Ablaze, et al. failed to show a clear proof of deliberate and unjustified intent on the part of Pu-Od et al. to sever the employer-employee relationship. The operative act is still the employees’ ultimate act of putting an end to their employment, which is totally missing in this case.

In cases where there is both an absence of illegal dismissal on the part of the employer and an absence of abandonment on the part of the employees, the remedy is reinstatement but without backwages.

However, considering that the reinstatement was already impossible by reason of the strained relations of the parties, and the fact that Pu-Od et al. already found another employment, each party must bear his or her own loss, thus, placing them on equal footing.

Based on the doctrines embodied in the cases of MZR Industries, vs. Colambot and Borja et al. vs. Randy B. Miiioza et al., the SC ruled that Pu-Od et al. are not entitled to the award of backwages and separation pay.

THE LABOR CODE OF THE PHILIPPINES 2018 Edition now Available in all National Book Store, Fully Booked, and Powerbooks branches. Online purchase is also available.

error: Content is protected !!