Gimalay v. Court Of Appeals

LAZARO-JAVIER, J.:

The Case This petition for review on certiorari1 seeks to reverse the following dispositions of the Court of Appeals in CA-G.R. SP No. 130731 and CA-G.R. SP No. 134905: 1. Decision2 dated August 18, 2017 reversing the decision of the National Labor Relations Commission (NLRC) and declaring as valid the dismissal of petitioner Domingo P. Gimalay; and 2. Resolution3 dated May 29, 2018 denying petitioner's motion for reconsideration.

Antecedents On February 2, 2004, private respondent Granite Services International, Inc. (Granite Services) hired petitioner Domingo P. Gimalay as mechanical technician/rigger on a project-based employment. On January 1, 2007, petitioner was hired as a regular member of the company's work pool. Petitioner's contract with Granite Services required him to work on various projects at different locations here and abroad.

For his assignment abroad, he would receive compensation based on the stipulated rates. For the periods that he was out of assignments, he would be entitled to P15,000.00 as monthly retainer or waiting fee. This amount was later increased to P18,000.00 on January 1, 2009.4 On January 25, 2012, petitioner was deployed to Ghana, Africa for a two (2) month contract on a monthly salary of USD900.00.5 Private respondents alleged that on February 23 and 24, 2012, petitioner repeatedly violated Granite Services' safety code.

First, he was allegedly spotted working on top of a compressor casing at the back of a trailer instead of working from the trailer. Second, petitioner allegedly did not give proper clearance to the crane operator causing a compressor casing to swing towards an employee which could have caused serious danger to the latter's life. Lastly, petitioner allegedly stood on top of a turbine without a safety harness.

Outage Excellence Leader Alan Carruth saw and reported these transgressions via e-mail to Granite Services' Human Resource Manager, private respondent Daniel Sargeant. A few days later, Service Manager Bonifacio Quedi launched a formal investigation. Meanwhile, petitioner completed his overseas contract and returned to the Philippines on March 3, 2012.6 On March 5, 2012, Service Manager Quedi called petitioner to a meeting and asked him to explain why he should not be dismissed for gross misconduct.

Another meeting took place between them together with HR Manager Sargeant. On March 7, 2012, a formal notice of termination was served on petitioner.7 Petitioner averred that on March 7, 2012, Granite Services' security guard prevented him from entering its premises. He claimed that even assuming that the alleged incidents were true, the penalty of dismissal was not commensurate to his so-called infractions.

The Labor Arbiter's Ruling By Decision8 dated August 31, 2012, Labor Arbiter Alberto B. Dolosa granted the relief prayed for and declared petitioner to have been illegally dismissed:

WHEREFORE , premises considered, judgment is hereby entered declaring that the dismissal of complainant IILEGAL for failure of the respondents to substantially prove just cause and observance of due process. Consequently, respondents GRANITE SERVICES INTERNATIONAL INC. is hereby ordered to pay complainant DOMINGO P. GIMALAY, as of the date of this Decision, the following judgment awards: 1. Backwages - P126,000.00 2. Separation Pay, in lieu of reinstatement - 162,000.00 3. 10% Attorney's Fees - 28,800.00 TOTAL P316,800.00 All other claims are dismissed for lack of merit. SO ORDERED.9 Labor Arbiter Dolosa held that there was no concrete and credible evidence to substantially prove the incidents attributed to petitioner. There was also no concrete and credible evidence that the company launched a formal investigation affording petitioner a chance to explain his side. In any case, the infractions were for "near misses." The labor arbiter found that no actual accident happened, no one was injured, and no damage was inflicted. Hence, the labor arbiter opined that admonition or reprimand would have been the commensurate penalty, not dismissal.10 The labor arbiter, however, ruled that since petitioner had already completed his contract abroad at the time he was dismissed from his work, his backwages should be based on his monthly retainer or waiting fee of P18,000.00 and not on his monthly salary of USD900.00 when the alleged incidents happened.11 Further, labor arbiter Dolosa ordered payment of separation pay in lieu of reinstatement because: x x x reinstatement is no longer feasible because of the existence of strained relation between the parties and the respondent's lack of intention to reinstate the complainant by their offer, by way of amicable settlement, of separation pay during the mandatory conference. Notably, the settlement through payment of separation pay failed to materialize because of the parties' disagreement as to the rate of pay to be used.12 Both parties appealed to the NRLC. On one hand, private respondents argued that petitioner was dismissed for cause; on the other, petitioner claimed that the basis for his backwages should be his latest monthly salary in Ghana in the amount of USD900.00. He did not anymore question the directive to pay separation benefits in lieu of reinstatement. His appeal, in fact, was only focused on the amount of separation benefits awarded him. The NLRC's Ruling Through its Decision13 dated March 7, 2013, the NLRC affirmed with modification: Having established the illegality of the dismissal, We sustain the grant of full backwages computed from the date the Complaint was dismissed up (to) the finality of this Decision, on top of the separation pay computed from January 1, 2007 likewise up to the finality of this Decision. Both awards are based on his latest monthly salary of P264,867.17 per pay slip marked as Annexes "6-C" and "6-D", broken down as follows: Salary from February 1, to 15, 2012 = P106,997.73 per Annex 6-C Salary from February 16 to 28, 2012 = P157,869.44 per (A)nnex 6-D Total P264,867.17 Simple logic made it clear that the Complainant was hired to work, not to stand-by and do nothing. He was hired to work as Rigger and Mechanical Technician abroad whose latest monthly salary paid to him on February 29, 2012 as such was, as computed above, P264,867.17 for the month of February, 2012 (Annexes 6-C and 6(-)D/Complainant's Position Paper) therefore it should be the basis of his backwages and separation pay. The "waiting fee or retainer fee" cannot be considered as his monthly salary as Rigger and Mechanical Technician because during the waiting period, he was not doing the work for which he was being employed. Forced to litigate to protect his rights, the Complainant is entitled to an award of attorney's fees not exceeding 10% of the judgment award. Accordingly, the Decision is MODIFIED in that the Respondents are ordered to pay the Complainant, tentatively, the following: 1. Backwages: - 1. Basic 3/7/2012 (date dismissed) up to 2/7/2012 (date of this Decision) P264,867.17x 11 months = P2,913,538.87 2. 13th Month Pay: - P2,913,538.87/12 = P 242,794.906 3. Service Incentive Leave Pay P264,867.17