Shifted burden

In illegal dismissal cases, the employee must first prove the fact of dismissal if the employer denies there is dismissal. This is the rule applied once more in this case of Baldo.

Baldo was one of the 41 drivers of ten wheeler delivery trucks hired by Al, the owner of AGG Trucking. His tasked was to deliver sacks of sugar from a Sugar Mill in Bukidnon (Busco) to the port of Cagayan de Oro. He started working on February 24, 2002 and received a salary on a commission basis of 9 percent of his gross delivery per trip.

On 30 September 2004, Al noticed that Baldo had incurred a shortage of 32 bags equivalent to P48,000. On November 11, 2004 he again noticed that Baldo had a shortage of 50 bags equivalent to P75,000. Al also learned that Baldo had allegedly sold bags of sugar along the way and that he was already banned from entering the premises of Busco. When asked to explain, Baldo just remained silent.

Alarmed at the delivery shortages, Al took it upon himself to monitor all his drivers by instructing them to report to him their location from time to time through their mobile phones. He also required them to make their delivery trips in convoys in order to avoid illegal sale of cargo along the way.

On December 4, 2004 Baldo was assigned along with 20 other drivers to deliver bags of sugar from Cagayan de Oro to the Coca Cola Plant in Davao City. As instructed all drivers reported their location showing they were indeed in convoy except Baldo who could not be reached. Afterwards, everyone except Baldo communicated that the delivery of their respective cargoes had been completed. Later on the Coca Cola plant in Davao reported a suspiciously large shortage in the delivery.

On December 6, 2004, when Baldo reported for work, Al asked him to explain why he could not be contacted for two days and why and he had not gone in convoy with the other trucks as instructed. Baldo replied that his cell-phone battery had broken down. But when Al also confronted him about the large shortages, Baldo did not answer.

Afterwards, Al told Baldo to “just take a rest” (“pahulay lang una”). Construing this as a dismissal, Baldo demanded that it be done in writing, but Al merely reiterated that he should just take a rest in the meanwhile. Then Baldo offered to resign and demanded separation pay. But Al said that he could not grant the demand right away as it would entail computation which was the duty of the cashier. Al just asked Baldo to come back the next day.

But Baldo did not wait for the next day. He went to the Regional Labor Arbiter (LA) that very day and filed complaint for illegal dismissal claiming his separation pay and 13th month pay. He alleged that he was whimsically dismissed by Al when the latter told him “no more talking, take a rest” (wala nay daghan istorya, pahulay na) after he asked Al for a clarification of the latter’s first utterance of “pahulay lang una”.

Al denied that he dismissed Baldo. He argued that his utterance of “pahulay lang una” was not an act of dismissal, rather he just wanted to give Baldo a break since the latter had already been banned from entering the premises of his clients Busco, and Coca Cola.

But on August 30, 2006 the LA rendered a decision sustaining Baldo’s complaint for illegal dismissal. The LA said that Al failed to substantially prove Baldo’s alleged infraction of shortages as grounds for his dismissal and to afford him due process. Thus the LA granted Baldo back-wages from the time of his illegal dismissal and separation pay instead of reinstatement because of the strained relationship. It also granted Baldo 13th month pay. Was the LA correct?

No. The general rule in dismissal cases is that the employer has the burden to prove that the dismissal was for just and valid cause and after due process. But if the employer denies the alleged dismissal it is the employee who bears the burden of proving first that in fact he was dismissed, because the dismissal is supposed to be a positive and unequivocal act by the employer.

So it is incumbent upon Baldo to prove that he was in fact dismissed from his job by Al effective December 6, 2004 when the latter told him “pahulay naka” (“you take a rest”). Sadly he failed to discharge that burden. Even assuming that Al had the intention of dismissing him from his job when he uttered those words, there is no proof of any overt act subsequently done by Al that would suggest he carried out such intention. There is no notice of termination sent to Baldo. He just literally construed said remarks as a dismissal without first ascertaining the veracity of the same. The how, why and wherefore of the alleged dismissal should be clearly demonstrated by substantial evidence. Baldo failed to do so. At best, he could be considered merely on leave of absence without pay. So there is no factual and legal basis for awarding him back wages and separation pay. He is not likewise entitled to 13th month pay since he was paid on commission basis (AGG Trucking, et.al. vs. Yuag, G.R. 195033, October 12, 2011).