In one case, the employer asserts that the complainant did not submit a duly executed Verification and Certification of Non-Forum Shopping when he filed his Petition for Certiorari before the CA. It alleged that his signature therein was forged and the same may easily be ascertained when comp red with his signatures in the previous pleadings. The company insisted that this issue was raised before the appellate court but it was not passed upon. Hence, the Petition for Certiorari ought to have been dismissed outright. Notably, up until now, said employee refused to acknowledge or validate the authorship of the assailed signature. Due to the foregoing, the company insists that it was deprived of due process . [Telus International Philippines, Inc. vs. De Guzman, G.R. No. 202676, December 04, 2019]

In Traveño v. Bobongon Banana Growers Multi-Purpose Cooperative, the SC restated the jurisprudential pronouncements respecting non-compliance with the requirements on, or s;ubmission of defective, verification and certification against forum shopping:

1) A distinction must be made between non-compliance with the requirement on or submission of defective verification, and noncompliance with the requirement on or submission of defective certification against forum shopping.

2) As to verification, non-compliance therewith or a defect, therein does not necessarily render the pleading fatally defective. The Court may order its submission or correction or act on the pleading if the attending circumstances are such that strict compliance with the Rule mav be dispensed with in order that

the ends of justice may be served thereby.

3) Verification is deemed substantially complied with when one who has ample knowledge to swear to the truth of the allegations in the complaint or petition signs the verification, and when matters alleged in the petition have been made in good faith or are true and correct.

4) As to certification against forum shopping non-compliance therewith or a defect therein like in verification is generally not curable by its subsequent submission or correction thereof. Unless there is a need to relax the rule on the ground of “substantial compliance” or presence of “special circumstances or compelling reasons.”

5) The certification against forum shopping must be signed by all the plaintiffs or petitioners in a case; otherwise, those who did not sign will be dropped as parties to the case. Under reasonable or justifiable circumstances, however, as when all the plaintiffs or petitioner’s share a common interest and invoke a common cause of action or defense, the signature of only one of them in the certification against forum hopping substantially complies with the Rule.

6) Finally, the certification against forum shopping must be executed by the party-pleader, not by his counsel. If, however, for reasonable or justifiable reasons, the party-pleader is unable to sign, he must execute a Special Power of Attorney designating his counsel of record to sign on his behalf.

The issue as to alleged defective Verification and Certification of Non­ Forum Shopping appended to the Petition for Certiorari filed before the appellate court is rendered moot given the full resolution of the said Petition.

The SC found that the court properly dispensed with the issue of the alleged defective Verification and Certification of Non-Forum Shopping given the overriding merits of the case. Indeed per jurisprudence, strict compliance with the Rule may be dispensed with in order that the ends of justice may be served thereby.

Moreover, the SC agreed with the complainant that a mere allegation of forgery will not suffice to declare the petition as defective. It is the employee’s own lookout to assail the alleged forgery at d as manifested, he is willing to attest to the authenticity of the signature if so required.

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In the case of Nuda vs. LGTM Corporation, Inc., [G.R. No. 245835] the Supreme Court (SC) held that there is no dispute that respondents therein filed an appeal before the NLRC and complied with the other requirements for perfecting an appeal, save for the posting of the full amount of the bond.

However, the NLRC, upon filing of respondents’ appeal, required them to post the differential amount between the judgment award and the sum of money previously tendered by them to complete the correct amount of the supersedeas bond.

Respondents complied with the said order of the NLRC and paid the differential amount of PhP322,317.30. Accordingly, the SC found that the liberal application of the requirement on the timely filing of the full amount of the appeal or supersedeas bond is justified under the circumstances:

1. the posting of a PhP71,831.73 bond upon filing respondents’ appeal;
2. full payment of the supersedeas bond in compliance with the Order of the NLRC; and
3. merit in their appeal.

Article 229 [formerly Article 223] of the Labor Code governs the appeal

in labor cases:

ART. 229. [223] Appeal. – Decisions, awards, or orders of the Labor Arbiter

are final and executory unless appealed to the Commission by any or both

parties within ten (10) calendar days from receipt of such decisions, awards, or orders. x x x:

xxxx

In case of a judgment involving a monetary award, an appeal by the employer may be perfected only upon the posting of a cash or surety bond issued by a reputable bonding company duly accredited by the Commission in the amount equivalent to the monetary award in the judgment appealed from.

The mandatory nature of posting a bond in appeals from the arbiter to the NLRC is also highlighted in Section 4(b ), Rule VI of the NLRC Rules, which states that “[a] mere notice of appeal without complying with the other requisites aforestated shall not stop the running of the period for perfecting an appeal.”

This requirement for the perfection of an appeal is meant to assure workers that if they prevail in the case, the monetary award will be given to them upon the dismissal of the employer’s appeal. Meanwhile, this requirement discourages employers from using an appeal to delay, or even evade, their obligation to satisfy their employees’ just and lawful claims.

This notwithstanding, this Court, in several cases, has relaxed the stringent requirement whenever justified.

These cases include instances in which (1) there was substantial compliance with the [NLRC] Rules, (2) surrounding facts and circumstances constitute meritorious grounds to reduce the bond, (3) a liberal interpretation of the requirement of an appeal bond would serve the desired objective of resolving controversies on the merits, or (4) the appellants, at the very least, exhibited their willingness and/or good faith by posting a partial bond during the reglementary period.

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It is  the voluntary act of an employee who is in a  situation where he believes that personal reasons cannot be sacrificed in favor of the exigency of the service, and he has then no other choice but to disassociate himself from employment. [Bance, et al. vs. University of St. Anthony, G.R. No. 202724, February 3, 2021]

The intent to relinquish must concur with the overt act of relinquishment; hence, the acts of the employee before and after the alleged resignation must be considered in determining whether he in fact intended to terminate his employment. In illegal dismissal cases, it  is a  fundamental rule that when an employer interposes the defense of resignation, on him necessarily rests the burden to prove that the employee indeed voluntarily resigned.

In the case of Bance, the SC resolved the situation where the employees resigned prior to the effectivity of their termination. Then they filed an illegal dismissal case.

What will happen to the labor case?

The complainants resigned prior to the effectivity date of the termination of their employment. There were ongoing investigations against them for the irregular acts they committed thereby placing them in a  difficult position. The SC found that from the wordings of the resignation letters, it could be implied that their resignations were voluntary.

Though not the sole test, the SC held that the wording of resignation letters may be considered as a factor, together with other circumstances, in assessing the voluntariness of a  resignation.

Also, to emphasize, petitioners did not contend or present countervailing evidence that their resignation was involuntary. Likewise, it is settled that there is  nothing reprehensible or illegal when the employer grants the employee a  chance to resign and save face rather than smear the latter’s employment record.”

Thus, because of the voluntary resignations of complainants prior to the termination of their employment, their complaints for illegal dismissal have no basis.

See here the procedure to observe when the employee refuses to receive employer’s notice.

In addition, the company should send another copy by registered mail and keep the registry receipt for future reference.

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An employee who alleges to have been dismissed from service has the burden of proof. The rule is that before resolving the legality or illegality of dismissal, the fact of dismissal must first be established.

It is axiomatic that in illegal dismissal cases, the employer bears the burden of proving that the termination was for a valid or authorized cause. However, there are cases wherein the facts and the evidence do not establish prima facie that the employee was dismissed from employment.

Before the employer is obliged to prove that the dismissal was legal, the employee must first establish by substantial evidence the fact of his dismissal from service. If there is no dismissal, then there can be no question as to the legality or illegality thereof.

In a case where the employee alleged that when he failed to report for work on December 24, 2014, he was verbally terminated by the company. The employee claimed that company’s representative confirmed his termination. On the other hand, the company contended that the he just stopped reporting for work after he left his work on December 23, 2014.

The employee’s bare claim of having been dismissed from employment by the company, unsubstantiated by impartial and independent evidence, is insufficient to establish such fact of dismissal.

Bare and unsubstantiated allegations do not constitute substantial evidence and have no probative value. It must be emphasized that aside from the allegation that he was verbally terminated from his work, respondent failed to present any competent evidence showing that he was prevented from returning to his work.

The alleged representative did not issue any statement to corroborate the claimed termination of the employee. That he was refused to be given his salary covering the period from December 15, 2014 to December 22, 2014 did not at all prove the fact of his termination.

The Supreme Court (SC) ruled that it must be taken into account that salaries of employees may not be released for myriad of reasons. Termination may only be one of them. The basic rule of evidence that each party must prove his affirmative allegation, that mere allegation is not evidence. The Court must also stress that the evidence presented to show the employee’s termination from employment must be clear, positive, and convincing.

Absent any showing of an overt or positive act proving that the company had dismissed the employee, the latter’s claim of illegal dismissal cannot be sustained — as the same would be self-serving, conjectural, and of no probative value. [See Atienza vs. Saluta, June 17, 2019, G.R. No. 233413]

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Insubordination or willful disobedience requires the concurrence of the following requisites: (1) the employee’s assailed conduct must have been willful or intentional, the willfulness being characterized by a “wrongful and perverse attitude”; and (2) the order violated must have been reasonable, lawful, made known to the employee and must pertain to the duties which he had been engaged to discharge.

The totality of infractions or the number of violations committed during the period of employment shall be considered in determining the penalty to be imposed upon an erring employee.

The offenses committed by employee should not be taken singly and separately. Fitness for continued employment cannot be compartmentalized into tight little cubicles of aspects of character, conduct and ability separate and independent of each other.

While it may be true that an employee may have been penalized for his previous infractions, this does not and should not mean that his employment record would be wiped clean of his infractions. After all, the

record of an employee is a relevant consideration in determining the penalty that should be meted out since an employee’s past misconduct and present behavior must be taken together in determining the proper imposable penalty.

Despite the sanctions imposed upon an employee, he may have continued to commit misconduct and exhibit undesirable behavior on board. Indeed, the employer cannot be compelled to retain a misbehaving employee, or one who is guilty of acts inimical to its interests. It has the right to dismiss such an employee if only as a measure of self-protection.

To be sure, the totality of an employee’s infractions is considered and weighed in determining the imposable sanction for the current infraction. It presupposes that the employee is already found guilty of the new violation, as in this case.

Apropos, it is also worth mentioning that when the employer had already previously warned an employee that the penalty for his next infraction would be elevated to dismissal and he committed the same violation, he may be dismissed from service. Thus, the dismissal of employee in this case, on the basis of the principle of totality of infractions, may be justified. (Villanueva vs. Ganco Resort and Recreation, Inc., G.R. No. 227175, January 08, 2020)

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What is the value of an affidavit in a labor case? Does it have any probative weight to establish the fact in issue?

In one case, the employer dismissed the complainants for irregularity. The employer presented affidavits to prove that the employees who complained were liable for the dismissal.

However, the complainants argued that the affidavits presented by the employer were inadmissible to prove their culpability which would justify their dismissal from employment. Particularly, they averred that: (1) the affidavits were taken ex-parte and, thus, incomplete and inaccurate; (2) statements therein are self-serving and hearsay, and unsubstantiated by concrete evidence; and (3) the admissions of culpability made by their co-employees are binding only on them and not on complainants. [JR Hauling Services vs. Solamo, G.R. No. 214294, September 30, 2020]

The Supreme Court (SC) held that although the affidavits do not address complainants’ participation in the delivery shortages of broilers, it is apparent that the statements in the same affidavits attest to their

involvement in the unauthorized sale of excess broilers and broiler crates.

Are the affidavits sufficient to establish respondents’ involvement in the alleged acts in question? The SC answered in the affirmative.

In labor cases, affidavits may be sufficient to establish substantial evidence.” Complainants argued, however, that affidavits taken ex-parte should not be given due weight for being self-serving, hearsay and inadmissible in evidence. By citing pertinent provisions on the rules on evidence, they insisted that any admissions made therein cannot be used to establish their culpability, but only of the confessants themselves.

The argument that the affidavits are hearsay for having been taken ex parte i.e., that the affiants were not presented for cross-examination, did not persuade the SC. The rules of evidence prevailing in courts of law do not control proceedings before the labor tribunals where decisions may be reached on the basis of position papers, accompanied by supporting documents, including affidavits of witnesses, and other allied pleadings.

Thus, in Bantolino v. Coca Cola Bottlers Phils. Inc., the SC held that administrative bodies like the NLRC are not bound by the technical niceties of law and procedure and the rules obtaining in courts of law. Indeed, the Revised Rules of Court and prevailing jurisprudence may be given only stringent application, i.e., by analogy or in a suppletory character and effect.

The argument, citing People v. Sorrel, that an affidavit not testified to in a trial, is mere hearsay evidence

and has no real evidentiary value, cannot find relevance considering that a criminal prosecution requires a quantum of evidence different from that of an administrative proceeding.

Along the same lines, in Southern Cotabato Development and Construction Inc. vs. National Labor Relations Commission that Article 221 (now 227) of the Labor Code, as amended, provides that the rules of evidence prevailing in courts of law or equity shall not be controlling and that the LA and the NLRC shall use every and all reasonable means to ascertain the facts in each case speedily and objectively and without regard to technicalities of law and procedure, all in the interest of due process.

Clearly, to disregard the affidavits on the ground that they were taken ex-parte would necessarily require the application of the technical rules of evidence and thereby negate the purpose of the summary nature of labor proceedings mandated by the Labor Code and the NLRC Rules of Procedure.

At any rate, we find that the affidavits executed by various co-employees constitute substantial evidence to prove respondents’ involvement in the unauthorized sale of excess broilers and broiler crates. We are inclined to give them evidentiary weight absent any evidence to rebut their validity. It is well settled that “a document acknowledged before a notary public is a public document that enjoys the presumption of regularity. It is a prima facie evidence of the truth of the facts stated therein and a conclusive presumption of its existence and due execution.”

The case of Gabunas, Sr. vs. Scanmar Maritime Services Inc. is instructive stating that as between bare allegation and the Affidavit of a witness to the contrary, credence is given to the latter.

In Pan Pacific Industrial Sales Co., Inc. vs. Court of Appeals, et al., it was held that a notarized document carries the evidentiary weight conferred upon it with respect to its due execution. It has in its favor the presumption of regularity, which may only be rebutted by evidence so clear, strong and convincing as to exclude all controversy as to the falsity of the certificate. Absent such evidence, the presumption must be upheld. The burden of proof to overcome the presumption of due execution of a notarial document lies in the one contesting the same.

When the other party failed to present convincing evidence to rebut the assertions made by the other on a crucial point the affidavit may be believed. While the court may be ready to construe in favor of labor in case of doubt, and while the Affidavit presented by employer could be considered self-serving, if there was absolutely no evidence to rebut this Affidavit, the Affidavit must be believed.

See here the procedure to observe when the employee refuses to receive employer’s notice.

In addition, the company should send another copy by registered mail and keep the registry receipt for future reference.

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The rule is that one who alleges a fact has the burden of proving it; thus, the employees are burdened to prove their allegation that the employer dismissed them from their employment. It must be stressed that the evidence to prove this fact must be clear, positive and convincing. (Machica vs. Roosevelt Services Center, Inc., 523 Phil. 199 (2006))

The rule that the employer bears the burden of proof in illegal dismissal cases finds no application here because the employer denies having dismissed the employees.

There can be no question as to the legality or illegality of a dismissal if the employee has not discharged his burden to prove the fact of dismissal by substantial evidence.

While it is true that in constructive dismissal cases, the employer is charged with the burden of proving that its conduct and action or the transfer of an employee are for valid and legitimate grounds such as genuine business necessity. However, it is likewise true that in constructive dismissal cases, the employee has the burden to prove first the fact of dismissal by substantial evidence.

Only then when the dismissal is established that the burden shifts to the employer to prove that the dismissal was for just and/or authorized cause. The logic is simple — if there is no dismissal, there can be no question as to its legality or illegality. [Galang vs. Boie Takeda Chemicals Inc., 790 Phil. 582, 599 (2016)]

In a case where the employee relied primarily on his allegations that he was misled by the Company into resigning and that he was actually retrenched, these uncorroborated and self-serving allegations, especially considering the existence of a resignation letter and a quitclaim (both bearing his signature), fall short of the evidence required under the law to discharge the burden to prove that he was dismissed by the Company.

In Gemina, Jr. vs. Bankwise, Inc., the SC ruled that the employee had indeed failed to state circumstances substantiating his claim of constructive dismissal as the employee therein had not claimed to have suffered a demotion in rank or diminution in pay or other benefits. Instead, the said employee only claimed to have been subjected to several acts of harassment by several officers of the employer-company, including being asked to take a forced leave of absence, demanding back the employee’s service vehicle, and delaying the release of employee’s salaries and allowances in order to compel him to quit employment.

Before the employer must bear the burden of proving that the dismissal was legal, the employee must first establish by substantial evidence the fact of his dismissal from service. Bare allegations of constructive dismissal, when uncorroborated by the evidence on record, cannot be given credence.

Where the claim is that of construction dismissal, an act, to be considered as amounting to constructive dismissal, there must be a display of utter discrimination or insensibility on the part of the employer so intense that it becomes unbearable for the employee to continue with his employment.

Where the circumstances relayed by employee in constructive dismissal case were not clear-cut indications of bad faith or some malicious design on the part of employer to make his working environment insufferable, the burden is not discharged.

In Gan vs. Galderma Philippines, Inc., the SC held that where the employee alleges that he involuntarily resigned due to circumstances in his employment that are tantamount to constructive dismissal, the employee must prove his allegations with particularity.

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An employee who claims that he is entitled to separation pay even if he resigned, has to provide proof of such entitlement. Where he failed to prove that a contract, to that effect, exists between him and the Company, it cannot be granted.

In our jurisdiction, a contract is defined in Article 1305 of the Civil Code as a meeting of the minds. This means that a contract may exist in any mode, whether written or not. If the claimant utterly failed to show that he has a perfected contract with the Company regarding his separation pay then he is not entitled to separation pay after he resigned.

Can the employee who believes he is entitled to it just write the employer and claim separation pay for his resignation?

The case of Italkarat is instructive. The Supreme Court (SC) held that to prove that the company owed him separation pay, Juraldine primarily relied on his resignation letter and the subsequent demand letter written by his lawyer. The CA incorrectly appreciated the resignation letter as one demanding for separation pay. The contents of the said resignation letter would reveal that Juraldine merely believed that he was entitled to separation pay and was not even demanding for a certain amount. In short, his

resignation was irrevocable and is patently unconditional.

Juraldine, while he believed to be entitled to separation pay, never intended to revoke his resignation. In fact, as already mentioned, the supposed separation pay does not appear to be the primary reason why Juraldine tendered his resignation as the totality of circumstances would show that he was already intending to resign and work abroad even before San Pedro allegedly talked with him and even before the Company’s supposed announcement made sometime in the last quarter of the year 2008 to retrench some workers.

Likewise, the subsequent demand letter appears to be the result of Juraldine’s disappointment when the amount reflected in the check he received did not match his expectations, which were purely based on his own belief to what he was entitled to, and is a mere afterthought. It must be reiterated that he who asserts a fact must prove such fact through evidence. In this case, Juraldine merely presented his bare and self-serving allegations, which were actually belied by the totality of evidence on record. He did not even present anything that would evince that there was a contract between him and the Company regarding his separation pay.

Juraldine did not prove that there exists a Company practice wherein resignees were given separation pay.

Aside from contract, Juraldine alternatively argued that it was a company practice to give resignees separation pay. To prove his allegations, Juraldine relied on affidavits of two former employees of the Company. The Company, on the other hand, also presented affidavits of its own, accompanied with the final payslips of former employees who have resigned.

Hence, the SC found that there was no company practice. The evidence would show that the affidavits presented by Juraldine were made by former employees who were not in the same department or job position as him. While the SC did not hastily conclude that the affiants are perjuring themselves (it may be possible that they were indeed given separation pay), these affidavits are not sufficient in proving that the Company gives separation pay as a matter of practice especially given the evidence presented by the Company, which paints a different picture.

The SC was inclined to give more weight to the Company’s affidavits as these were accompanied by the final payslips of former employees who have resigned, especially considering that at the time of resignation of one of these former employees, Gaylord Nebril, occupied the same job position as Juraldine when the latter resigned, which is maintenance director. This is compared to the job positions of Accountant and worker at the Lacquering and Wax Department held by Ms. Clarita A. Pangandayon and Ms. Evelyn A. Abella, respectively.

A company’s practice of paying separation pay to resignees must be proven to exist as this is an exception to the general rule that employees who voluntarily resign are not entitled to separation pay.

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However, during the pendency of the case, the employee may have decided to seek employment. What will be the effect on the labor case that he filed?

As held in the case of Hda. Dapdap I vs. NLRC, (285 SCRA 9 (1998).) the fact that the employee’s starting date of employment in a new company coincides with the date of the original complaint strongly indicates that such employment was only meant to help employee and his family survive during the pendency of his case. It has been said that abandonment of position cannot be lightly inferred, much less legally presumed from certain equivocal acts177 such as an interim employment.

An employee who filed an illegal dismissal case cannot be faulted for looking for other employment since he must continue to feed, shelter and clothe himself and his family.

It may occur that in a proceeding before the Labor Arbiter the employer offers reinstatement to the complaining worker. But the employee refuses to be reinstated. Is the refusal a sign that the employee lacks interest to work and ultimately negates employee’s claim of illegal dismissal?

The Supreme Court answered in the negative. It considered the refusal to be reinstated as more of a symptom of strained relations between the parties, rather than an indicium of abandonment of work as obstinately insisted by the employer. While the employee desires to have his job back, it must have dawned on him that the filing of the complaint for illegal dismissal and the bitter incidents that followed

have sundered the erstwhile harmonious relationship between the parties.

Where evidence that the employer had dismissed the employee was lacking, the refusal of the employee to resume work during the hearing before the Labor Arbiter was considered as an indication of lack of intention to dismiss on the part of the company and the worker’s lack of interest in resuming work.

As held in the case of Hantex Trading Co., Inc. vs. CA, neither does the fact that the employer made offers to reinstate the employee legally disproves illegal dismissal. The Supreme Court observes that the offer may very well be “a tacit admission of employees that they erred in dismissing him verbally and without observance of both substantive and procedural due process.”

In such case, employer’s offer of reinstatement was made only after more than one (1) month from the date of the filing of the illegal dismissal case. Their belated gesture of goodwill is highly suspect. If petitioners were indeed sincere in inviting respondent back to work in the company, they could have made the offer much sooner. In any case, their intentions in making the offer are immaterial, for the offer to re-employ respondent could not have the effect of validating an otherwise arbitrary dismissal.

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The answer is no.

Proceeding in labor is administrative in nature. All administrative determinations require only substantial proof and not clear and convincing evidence. (Segismundo vs. NLRC, G.R. No. 112203, December 13, 1994; Consolidated Food Corporation vs. NLRC, G.R. No. 118647, September 23, 1999; Manalo vs. Roldan Confesor, 215 SCRA 808.)

Substantial evidence is that amount of evidence which a reasonable mind might accept as adequate to justify a conclusion.

It is more than a mere scintilla; it is of a more substantial and relevant consequence and excludes vague, uncertain and irrelevant matter, implying a quality of proof which induces conviction and makes an

impression on reason.

In short, the quantum of evidence required in labor cases is less than that in criminal cases. As to level of difficulty, it is easier to prove a case in labor than in criminal court.

The value of understanding this concept from the perspective of the management or employer is to know what to prepare in case of labor dispute. Knowing the evidence to be presented to prove a position and the weight of such evidence will provide valuable insight in the preparation.

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