Ramirez v. Court Of Appeals

CHICO-NAZARIO, J.:

This is a Petition for Review under Rule 45 of the Rules of Court assailing the (a) 13 July 2007 Resolution1 of the Court of Appeals which dismissed the Petition for Certiorari under Rule 65 filed by petitioner Hilario Ramirez for failure to properly verify his petition and to state material dates and (b) the 7 March 2008 Resolution2 of the same court denying petitioner's Motion for reconsideration. The facts are: Respondent Mario Valcueba (Valcueba) filed a Complaint3 for illegal dismissal and nonpayment of wage differential, 13th month pay differential, holiday pay, premium pay for holidays and rest days, and service incentive leaves with claims for moral and exemplary damages and attorney's fees, against Hilario Ramirez (Ramirez). Valcueba claimed that Ramirez hired him as mechanic on 28 May 1999.

By 2002, he was paid a daily wage of ₱140.00, which was increased to ₱165.00 a day in 2003 and to ₱190.00 in 2005. He was not paid for holidays and rest days. He was not also paid the complete amount of his 13th month pay.

On 27 February 2006, Josephine Torres, secretary of Ramirez, informed Valcueba that he would not be allowed to return to work unless he agreed to work on pakyaw basis.4 Aggrieved, he filed this case. Ramirez, on the other hand, presented a different version of the antecedents, asserting that Valcueba was first hired as construction worker, then as helper of the mechanic, and eventually as mechanic. There were three categories of mechanics at the workplace.

First were the mechanics assigned to specific stations. Second were the mechanics paid on pakyaw basis; and finally, those who were classified as rescue/emergency mechanics. Valcueba belonged to the last category.

As emergency/rescue mechanic, he was assigned to various stations to perform emergency/rescue work. On 26 February 2006, while he was assigned at the Babag station, Ramirez directed him to proceed to Calawisan, Lapu-lapu City, as a unit had developed engine trouble and the mechanic assigned in that area was absent. Valcueba did not report to the Calawisan station.

In fact, he did not report for work anymore, as he allegedly intended to return to Mindanao.5 Further, Ramirez insisted that Valcueba was never terminated from his employment. On the contrary, it was the latter who abandoned his job. On 26 February 2006, Valcueba, as rescue or emergency mechanic, temporarily assigned at Babag Station, did not report at Calawisan, Lapu-lapu City when Ramirez ordered him to answer an emergency call, which required him to fix Ramirez's troubled taxi unit.

The mechanic assigned in the area was then absent at that time. The refusal of Valcueba to obey the lawful order of Ramirez was bolstered by his failure to report for work the following day, 27 February 2006. Valcueba advanced no reason regarding his failure to answer an emergency call of duty, nor did he file an application for a leave of absence when he failed to report for work that day.

After hearing, the Labor Arbiter rendered her decision, where she pointed out that: The allegation of complainant that his refusal to work on pakiao basis prompted respondent Hilario Ramirez to dismiss him from the service is not substantiated by any piece of evidence. Not even a declaration under oath by any affiant attesting to the credibility of complainant's allegation is presented. No documentary evidence purporting to clearly indicate that complainant was discharged was submitted for Our judicious consideration.

A fortiori, there is reason for Us to doubt complainant's submission that he was dismissed from his employment grounded on disobedience to the lawful order of respondent.

On the side of respondent Ramirez, he insisted that complainant was never terminated from his employment. On the contrary, he alleged that it was complainant who abandoned his job. As rescue or emergency mechanic temporarily assigned at Babag Station, on February 26, 2006, complainant did not report at Calawisan, Lapu-Lapu City when respondent Ramirez ordered him to answer an emergency call, which required him to fix the respondent's troubled taxi unit.

The mechanic assigned in the area was then absent at that time. The refusal of complainant to obey the lawful order of respondent Ramirez is bolstered by his failure to report for work the following day, February 27, 2006. Complainant advanced no reason as to why he failed to answer an emergency call of duty nor did he file an application for a leave of absence when he failed to report for work that day.

Nonetheless, as the records are bereft of any evidence that respondent sent complainant a letter which advised the latter to report for work, We do not rule out a case of abandonment because the overt act of not answering an emergency call is not insufficient to constitute abandonment. Consequently, there being no dismissal nor abandonment involved in this case, it is best that the parties to this case should be restored to their previous employment relations. Complainant must go back to work within ten (10) days from receipt of this judgment, while respondent must accept complainant back to work, also within ten (10) days from receipt of this decision.6 In the end, the Labor Arbiter decreed:

WHEREFORE, VIEWED FROM THE FOREGOING, judgment is hereby rendered declaring respondent HILARIO RAMIREZ, OWNER OF H.R. TAXI, NOT GUILTY of illegally dismissing complainant from the service, it appearing that there is no dismissal to speak of in this case. Consequently, complainant is ordered to report back for work within ten (10) days from receipt hereof, and respondent Hilario Ramirez must complainant (sic) back to work as soon as the latter would express his intention to report for work or within the same period of ten (10) days from receipt hereof, whichever comes first. Proof of compliance hereof, must be submitted within the same period (sic), complainant would be guilty of abandonment and respondent of illegal dismissal. In addition, respondent HILARIO RAMIREZ, owner of H.R. Taxi, is hereby ordered to pay complainant MARIO S. VALCUEBA the following: a. Wage Differential - P30,538.00 b. 13th Month Pay - 15,287.98 Total Award -