Misunderstood

Before filing a complaint for illegal dismissal, the employee must first be sure that he was really dismissed. This is illustrated in this case of Berto.

Berto was one of the 41 truck drivers of a trucking company owned by Andy with the main task of delivering bags of sugar from a Sugar Mill to the nearest port of shipment. His salary was on a commission basis of 9% of his gross delivery per trip.

After more than two years on the job, Andy discovered that Berto had incurred a shortage of 82 bags equivalent to P123,000 which he had allegedly sold along the way, and that he was already banned from entering the premises of the Sugar Mill. When asked to explain, Berto just remained silent.

Alarmed at the delivery shortages, Andy took it upon himself to monitor all his 41 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.

When Berto and 20 other drivers were assigned to deliver bags of sugar from the port to a soft drinks plant in another city, Andy instructed all drivers to report their location showing they were indeed in convoy. Berto however did not join the convoy and could not be reached. Afterwards, everyone except Berto communicated the completion of their respective cargo deliveries. Later on the soft drinks plant reported a suspiciously large shortage in the delivery.

When Berto reported for work the following day, Andy asked him to explain why he could not be contacted for two days and why he had not gone in convoy with the other trucks as instructed. Berto replied that his cell-phone battery broke down. But when Andy also confronted him about the large shortages, Berto did not answer.

Afterwards, Andy told Berto to “just take a rest.” Construing this as a dismissal, Berto demanded for a written notice. But Andy merely reiterated his advice and told Berto to just “take a rest in the meanwhile and no more talking.”

Thereafter Berto already offered to resign and demanded separation pay. But Andy told him that he could not grant the demand right away as it would entail computation which was the duty of the cashier. So he just asked Berto to come back the next day.

But instead of waiting for the next day, Berto already proceeded to the Regional Labor Arbiter (LA) and filed a complaint for illegal dismissal claiming his separation pay and 13th month pay. He alleged that he was whimsically dismissed by Andy when the latter told him “no more talking, just take a rest”.

Andy denied that he dismissed Berto. He argued that his utterance of “just take a rest” was not an act of dismissal but he just wanted to give Berto a break since the latter had already been banned from entering the premises of his clients.

The LA however sustained Berto’s complaint for illegal dismissal. The LA ruled that Andy failed to substantially prove Berto’s alleged infraction of shortages as grounds for his dismissal and to afford him due process. Thus the LA granted Berto his back-wages from the time of his illegal dismissal and separation pay instead of reinstatement because of the strained relationship. The LA also granted him the 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 Berto to prove that he was in fact dismissed from his job by Andy when the latter told him “you just take a rest”. Sadly he failed to discharge that burden. Even assuming that Andy had the intention of dismissing him from his job when he uttered those words, there is no proof of any subsequent overt act showing that such intention was carried out like sending a notice of termination. Berto 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. Berto failed to do so. At best, he could be considered merely on a 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 merely paid on commission basis (AGG Trucking, et.al. vs. Yuang, G.R. 195033, October 12, 2011).

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