DECISION

For resolution is a complaint for alleging Illegal Dismissal with claims for
Backwages, Separation Pay, Overtime Pay, 13th Month Pay, Service Incentive
Leave Pay, Refund of Capital Share, Moral and Exemplary Damages, and
Attorney’s Fees filed by Gilbert A. Hernandez against Esource System
Development Cooperative/Bounty Fresh Food, Inc., and Ms. Aster Gordon
Manager.

Despite efforts, the parties failed to arrive at any amicable settlement,

hence, they were directed to file their respective position papers and relevant
pleadings.

Background of the Case

Complainant in his position paper alleged that he was hired by

Respondent Esource on January 6, 2017 and was assigned to Respondent
Bounty Fresh, Inc. – Rosal Farm in Magalang, Pampanga, to work as a Flock
Man. During his employment, his wage rate is Php 400.00 per day with a
deduction of Php 200.00 as his Capital Share, which they may get upon
separation from work.

Complainant claimed in his position paper that on January 1, 2019,

Complainant asked personally their Supervisor, Sonny Boy Solite Pregua for a
one-day leave of absence for January 2, 2019, which Pregua then allowed
complainant to take.

Complainant stated that on January 3 and 4, 2019, he reported for work

and he was never confronted about his absence on January 2, 2019.

Complainant also stated that on January 5, 2019, while he was working,

Pregua called everyone for a meeting. When all the employees were gathered in
their meeting place, Rodel Tingco, who is from the administration of the
Respondent Esource, was also there. Tingco was the one in charge of payroll of
the employees, and he can hire, discipline and dismiss employees. Tingco called
the attention of the Complainant and handed to Complainant a letter and told him
to explain his absence on January 2, 2019. Complainant did not accept the letter
being handed to him and answered that his absence was with leave from
Pregua.

Complainant alleged that Pregua butted in and suddenly said “Umalis ka

na, hindi ka kailangan sa trabaho. Wala kang pinagaralan”. Complainant
indicated that he kept silent after hearing such invectives and went back to his
post to perform his work.
 Complainant averred that not long after, Pregua approached the
Complainant forcing him to leave the work premises, which made the
Complainant accede, as he could no longer work properly because of the
demand of Pregua for him to leave.

Complainant stated that when he was about to leave, Tingco approached

him and forced him to sign a resignation letter, but Complainant did not do so
and silently left the work premises.

In their position paper, Respondent Esource, stated that they are a

cooperative engaged in job contracting to clients, in this case, Bounty Fresh
Foods, Inc. Rosal Farm. That, on the other hand, Respondent Bounty Fresh
Foods, Inc. should not have been included because Complainant is the
employee-member of Respondent Esource, and that Complainant and
Respondent Bounty Fresh has no employer-employee relationship.

Respondent stated that Complainant is a member-owner of the

cooperative employed as a Team Leader Operations and member of the
cooperative since Januarfy 9, 2017 up to present.

Respondent stated that Complainant did not report to work on January 2,

2019 without giving notice and without asking permission. The Admin Officer,
Rodel Tingco, asked the Complainant on January 2, 2019 why he absented
himself without permission. Respondent averred that the alibi of the Complainant
is that he asked permission from Bounty Fresh Supervisor, who in fact has no
authority to give permission as he is not employed by Esource. Respondent
further averred that just to make sure if Complainant was telling the truth, Tingco
asked Pregua if Complainant asked permission from him to go on leave on
January 2, 2019, however, Pregua denied giving approval to the complainant
because he is not in the position to give such permission.

Respondent stated that Tingco documented the incident by making an

Incident Report dated January 4, 2019, which also the same day Tingco gave the
Complainant Notice to Explain (NTE) that the Complainant did not want to
receive and did not want to explain.

Respondent also stated the regular meeting of Esource members held on

January 5, 2019, wherein Tingco once again try to give the Complainant the
Notice to Explain, but Complainant insisted that he does not want to explain.
Respondent claimed that Complainant decided to pack his things and leave the
premises. Respondent further claimed that Tingco advised the Complainant to
follow the correct procedure by signing first before leaving the premises because
he might be committing a violation of company rules being considered absent
without leave (AWOL). Respondent stated that Complainant answered “kahit i-
AWOL ninyo ako hindi ako magre-resign” and continued to leave the farm
premises. Tingco allowed him to go out because he does not want to be accused
of unlawfully detaining the Complainant.

Respondent averred that Complainant left on January 5, 2019 and never

returned until he filed his case against Esource. Respondent claimed that
Complainant was never terminated and there is no written or oral order from
Esource to terminate his employment.

In his reply, Complainant reiterated that he was illegally dismissed as

there was no just or authorized cause for his dismissal and that his right to due
process was violated. Complainant asked for leave of absence from Pregua
since representative from Respondent Corporation was not available at that time.
Complainant alleged that Pregua denied giving approval to the Complainant,
despite the fact that Complainant’s co-employees were present and witnessed
that he asked for leave of absence and the same was approved by Pregua.

Complainant averred that, contrary to the allegations contained in

Respondent’s position paper, Complainant was verbally dismissed and this fact
was even witnessed by his co-employees who where then present. Complainant
further averred that he never construed that the serving of the Notice to Explain
was synonymous to his termination because what happened was his actual
termination when he was told to leave the premises he must sign a resignation
letter. Complainant claimed that he did not sign the resignation letter because he
did not intend to resign rather Respondents terminated him without just and
authorized cause and without due process.

In their reply to Complainant’s position paper, Respondent pointed out that

Pregua is not at all connected with Esource. That if Complainant and Pregua had
a personal misunderstanding, that should have been settles between them.
Respondent asserts that Pregua has no right to dismiss or terminate the
Complainant because he is not an authorized officer of Esource.

Respondent stated that Complainant was not forced to sign a resignation

letter as he was only advised to file a resignation letter. Besides, what happened
is that, Complainant was only being served a Notice to Explain, which the
Complainant admitted in his position paper, but Complainant did not accept the
letter.

In his Rejoinder, Complainant maintains that he was illegally dismissed as

he was told he was already terminated from employment. Complainant pointed
out that Pregua acted in the presence of Tingco when Pregua informed the
Complainant to leave the premises, as his services were no longer needed.

However, stated in the Respondent’s Rejoinder, Complainant knows

Pregua has no authority at all over the employees of Esource. Tingco is the only
person authorized to give permission as far as leaves of absence and day-offs
are concerened.

Respondent further stated that Pregua gave permission to the

Complainant to go out of the farm on January 1, 2019 and he did not give any
permission as far as his taking a leave of absence because this is not within his
authority.

The Issues

1. WHETHER OR NOT EMPLOYER-EMPLOYEE RELATIONSHIP

EXISTS BETWEEN BOUNTY FRESH FOOD, INC. AND THE COMPLAINANT;
2. WHETHER OR NOT COMPLAINANT WAS ILLEGALLY DISMISSED;
and
2. WHETHER OR NOT COMPLAINANT IS ENTITLED TO DAMAGES
AND ATTORNEY’S FEES and other MONETARY CLAIMS;

The Ruling

After going over the records of the case, I find that the complainant was
not illegally dismissed from his job.

The elements to determine the existence of an employment relationship

are: (1) the selection and engagement of the employee; (2) the payment of
wages; (3) the power of dismissal; and (4) the employer’s power to control the
conduct of the employees.

None of the four elements are present in this case.

First. Respondent Bounty Fresh Foods, Inc, did not select nor engaged
the services of the Complainant since Respondent Esource was the one who
engaged or selected the services of the Complainant being provider of services
for Respondent Bounty Fresh Foods, Inc.

Second. There was no payment of wages from Respondent Bounty Fresh

Foods, Inc. as shown on the pay slips that were issued by Respondent Esource.

Third. Respondent Bounty Fresh Foods, Inc.’s power to dismiss

Complainant is unfounded as the power to dismiss is inherent when there is a
valid selection or engagement of services to the employee. In this case, since
Respondent Bounty Fresh Foods, Inc. did not select nor engaged the services of
the Complainant, the power to dismiss is unsupported.

Fourth. Respondent Bounty Fresh Foods, Inc. has no power of control

over the Complainant since Complainant admitted Tingco, the Admin Officer of
Esource, was the one in charge of payroll of the employees, and he can hire,
discipline and dismiss employees.

It is now determined that based on the circumstances, there is no

employer-employee relationship that exists between Respondent Bounty Fresh
Foods, Inc. and the Complainant. Therefore, Complainant’s claim of being
illegally dismissed through Pregua, an employee of Respondent Bounty Fresh
Foods, Inc., is untenable.

As to the alleged Illegal Dismissal, the Complainant is found not dismissed

from work, but instead complainant abandoned his post. In Security & Credit
Investigation, Inc. v. NLRC, the LA held that no Illegal Dismissal takes place
when the employee has not been notified of his dismissal; in the absence of overt
acts of dismissal, the claim of Illegal Dismissal cannot be sustained.

In this case, there was no Illegal Dismissal, as the Complainant’s

employer did not issue any notice of his alleged dismissal and that the
Complainant’s employer demonstrated no overt acts of dismissal.

On the other hand, there is abandonment when there is a deliberate and

unjustified refusal of an employee to resume his employment. In other words, the
employee has decided that he is no longer going back. In this case, Complainant
admitted he left the premises and refused to resume his employment since
Complainant never came back until only when he filed this complaint.

With regard to Complainant’s money claims, considering that there is no

Illegal Dismissal, it follows that Complainant is not entitled to back wages as
separation pay. Such claims are only available to employees who are illegally
been dismissed.

However, Complainant is entitled to his Capital Share as contracted upon

separation from work.