Jumping to conclusion

If the employer denies that he has dismissed an employee, the burden to prove that there is a dismissal is shifted on the employee. This is the rule applied in this case of Bruno.

Bruno was one of the 41 drivers of ten wheeler delivery trucks hired by Al, the owner of a trucking company. His tasked was to deliver sacks of sugar from a sugar mill (the Mill) to the port of shipment or to other customers. He was paid a salary on commission basis at the rate of 9% of his gross delivery per trip.

 After two years on the job, Al noticed that Bruno had incurred a shortage of 32 bags equivalent to P48,000. Subsequently Al again noticed that Bruno had a shortage of 50 bags equivalent to P75,000. Al also learned that Bruno had allegedly sold bags of sugar along the way and that he was already banned from entering the premises of the Mill. When asked to explain, Bruno 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.

In one of the deliveries where Bruno was assigned together with 20 other drivers, all the drivers reported their location showing that they were indeed in a convoy except Bruno who could not be reached. Afterwards, everyone except Bruno communicated that the delivery of their respective cargoes had been completed. Later on the plant where the sacks were supposed to be delivered reported a suspiciously large shortage in the delivery.

When Bruno reported for work two days later, 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. Bruno replied that his cell-phone battery had broken down. But when Al also confronted him about the large shortages, Bruno did not answer.

Afterwards, Al told Bruno to “just take a rest” in the meanwhile. Construing this as a dismissal, Bruno demanded a written notice from Al. But Al just reiterated his instruction to Bruno. So Bruno offered to resign and demanded separation pay. But Al replied that he could not grant his demand right away as it would entail computation by the cashier. Al just asked Bruno to just come back the next day.

But Bruno 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” after he asked Al for a clarification of the latter’s first utterance to just “take a rest first.“

Al denied that he dismissed Bruno. He argued that his instruction to Bruno to just “take a rest” was not an act of dismissal. Rather, he just wanted to give Bruno a break since the latter had already been banned from entering the premises of his clients.

But the LA sustained Bruno’s complaint for illegal dismissal. The LA said that Al failed to substantially prove Bruno’s alleged infraction of shortages as grounds for his dismissal and to afford him due process. Thus the LA granted Bruno back-wages from the time of his illegal dismissal and separation pay instead of reinstatement because of the strained relationship. It also granted Bruno’s 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 Bruno to prove that he was in fact dismissed from his job by Al when the latter told him “you take a rest.” And Bruno 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 Bruno. 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. Bruno 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. Yuang, G.R. 195033, October 12, 2011).

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