FIRST DIVISION

[G.R. No. 195512. February 13, 2019.]

MA. AURORA MARTINEZ , petitioner, vs. FASTFOOD CHAIN CORP.

[KARATE KID], AND MICHAEL ANG , respondents.

NOTICE

Sirs/Mesdames :

Please take notice that the Court, First Division, issued a Resolution dated
February 13, 2019 which reads as follows:
"G.R. No. 195512 (MA. AURORA MARTINEZ, Petitioner, v. FASTFOOD
CHAIN CORP. [KARATE KID], AND MICHAEL ANG, Respondents.) — In this
petition for review on certiorari, the petitioner seeks relief from the Court of Appeals
(CA) decision dated September 13, 2010 1 in CA-G.R. SP No. 102875, whereby the
Court of Appeals (CA) a rmed the decision and resolution dated May 31, 2007 2 and
December 17, 2007, 3 respectively, of the National Labor Relations Commission (NLRC),
dismissing the petitioner's complaint for illegal dismissal and modifying the monetary
awards granted by the Labor Arbiter.
The essential facts of the case were succinctly recounted in the assailed CA
decision, to wit:
Petitioner, Ma. Aurora M. Martinez, was employed since September 2,
1999 as Assistant Store Manager of Karate Kid, Ermita Branch, a restaurant
owned by private respondent Fastfood Chain Corporation, located at Robinson's
Mall in Ermita[,] Manila.
In the morning of February 7, 2005, cash collections from store sales
amounting to approximately P101,556.25 and the DVD player of the restaurant
were found missing from the vault of the restaurant. Private respondent Michael
Ang referred the matter to the National Bureau of Investigation (NBI).
The NBI conducted polygraph tests on all the employees of said branch
of Karate Kid. On the same day, the NBI informed Martinez that she failed the
test while both the manager and the cook passed. Petitioner then received a
Notice to Explain, dated February 9, 2005, from private respondent's Human
Resources Department requiring her to give her side of the incident and why she
should not be subjected to disciplinary action.
The next day, after petitioner personally handed her written explanation,
she was immediately placed under preventive suspension until further notice.
She also received a subpoena, dated February 23, 2005, issued by the NBI. CAIHTE

On April 4, 2005, petitioner wrote the Human Resources Manager of

respondent corporation, inquiring why she has been suspended a total of fty-
one (51) days, beyond the thirty-day suspension period allowed by Philippine
labor laws. Petitioner also asked that she be reinstated and paid back wages
and other bene ts accruing to her after the thirty-day suspension period. In
response, the human resources manager directed petitioner to report to the
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 Human Resources Office on April 12, 2005.
Petitioner claimed that when she reported to the Human Resources
O ce, she was asked to resign and told that refusal on her part would result in
a demotion. Consequently, petitioner's counsel sent a letter, dated April 20, 2005,
to private respondent Michael Ang, the relevant portion of which reads:
"Hence, my client is amenable to accede to your strong and
intimidating suggestion that she resign from your company if she
were to receive a fair and reasonable financial assistance package
equivalent to three (3) months salary; as well as her unpaid
salaries, allowances and bene ts to date; and together with the
necessary clearance to enable her to seek employment elsewhere."
Private respondent's counsel, in a letter-reply to petitioner's counsel,
dated April 28, 2005, stated that the evidence gathered points to petitioner as
the "culprit for the loss of its property and for which reason, it could not accede"
to petitioner's demand.
As a result, petitioner led a Complaint before the NLRC for illegal
dismissal, non-payment of wages, overtime pay, illegal deductions of 13th
month pay, unfair labor practice and damages. 4
On March 17, 2006, the Labor Arbiter ruled in favor of the petitioner and found
that she had been constructively dismissed in view of the extension of her preventive
suspension beyond thirty (30) days coupled with the supposed pressure exerted on her
by respondent Michael Ang to resign. The dispositive portion of the Labor Arbiter
decision reads:
WHEREFORE , premises considered, respondents Fastfood Chain
Corporation (Karate Kid) and/or Michael Ang are clearly guilty of illegally
and constructively terminating the services of complainant. Consequently,
respondents are ordered to solidarily pay complainant the following:
a) unpaid wages for the period of January 26 to February 11, 2005 in
the amount of P6,204.00 ;
b) back wages from the time she was placed on preventive suspension
on February 12, 2005 up to the nality of this decision; at the rate of
P12,229.54/month equivalent to P163,019.76 (P12,229.54 x 13.33
mos. = P163,019.76) plus P13,584.90 , corresponding to the pro-
rata computation of complainant's 13th month pay as provided by
law with legal interest up to the time of actual payment;
c) separation pay equivalent to six (6) months salary at the rate of
P12,229.54/month in lieu of reinstatement in the sum of
P73,377.24 ;
d) moral damages in the amount of P50,000.00 ;
e) exemplary damages in the amount of P30,000.00 ; and
f) attorney's fees in the amount equivalent to 10% of the total
judgment award.
SO ORDERED . 5
On appeal, the NLRC reversed the Labor Arbiter and disposed of the case in this
wise:
WHEREFORE, the instant appeal is GRANTED and the Appealed
Decision dated 17 March 2006 is hereby MODIFIED . The complaint for illegal
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 dismissal is DISMISSED for lack of merit.
The monetary award is MODIFIED . In lieu thereof, respondent appellant
Fastfood Chain Corp. is ordered to pay complainant-appellee the following: DETACa

(i) u[n]paid wages from January 26 to February 11, 2005;

(ii) unpaid wages from March 14, (sic) to April 12, 2005;
(iii) pro-rata 13th month pay; and
(iv) One [T]housand Peso[s] (PhP1,000.00) as indemni[t]y for the
unauthorized extension of the preventive suspension.
SO ORDERED. 6
Her motion for reconsideration having been denied by the NLRC, herein petitioner
sought redress with the CA by ling a petition for certiorari under Rule 65. The CA
dismissed the petition after nding that the petitioner wanted a review of the factual
ndings of the NLRC which a Rule 65 petition proscribes. 7 The petitioner led a motion
for reconsideration but the same was denied.
Hence, this petition for review on certiorari.
The petitioner argued in the main that the CA erred in: (a) dismissing her petition
on a technicality (i.e., her failure to allege grave abuse of discretion on the part of the
NLRC); (b) ruling that factual ndings of the labor tribunals may not be reviewed in a
certiorari petition because the CA may make its own factual determination when the
ndings of fact of the Labor Arbiter and the NLRC con ict; and (c) not holding that the
petitioner had been constructively dismissed and entitled to her monetary claims.
We first tackle the procedural issue.
In Philippine National Bank v. Gregorio , 8 this Court reiterated the parameters of
the Judiciary's review powers over NLRC decisions, viz.:
We held in St. Martin Funeral Home v. NLRC (St. Martin) that the decision
of the NLRC may be reviewed by the CA through a special civil action for
certiorari under Rule 65 of the Rules of Court. While we stated in this case that
the courts, particularly the CA, possess jurisdiction to review the rulings of the
NLRC, our existing laws and rules limit a resort to the courts through a petition
f o r certiorari. In ruling that a special civil action for certiorari is the proper
remedy to assail NLRC's decisions, we speci ed in St. Martin the parameters of
the judiciary's review powers over the rulings of the NLRC. In particular, the CA
may review NLRC's decisions only when there is grave abuse of discretion
amounting to lack or excess of jurisdiction.
A special civil action for certiorari under Rule 65 is not the same as an
appeal. In an appeal, the appellate court reviews errors of judgment. On the
other hand, a petition for certiorari under Rule 65 is not an appeal but a special
civil action, where the reviewing court has jurisdiction only over errors of
jurisdiction. We have consistently emphasized that a special civil action for
certiorari and an appeal are "mutually exclusive and not alternative or
successive." A petition led under Rule 65 cannot serve as a substitute for an
appeal.
Thus, while we said in St. Martin that a special civil action under Rule 65
is proper to seek the review of an NLRC decision, this remedy is, by no means,
intended to be an alternative to an appeal. It is not a substitute for an appeal
that was devised to circumvent the absence of a statutory basis for the remedy
of appeal of NLRC decisions. It is not a means to review the entire decision of
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 the NLRC for reversible errors on questions of fact and law.
xxx xxx xxx
The nature of the judiciary's review of NLRC's decisions also
prescribe speci c allegations in the petition led by the party seeking
the review . As the petition is led under Rule 65, it must raise not errors of
judgment but the acts and circumstances showing grave abuse of discretion
amounting to lack or excess of jurisdiction. Grave abuse of discretion is de ned
as "an act too patent and gross as to amount to an evasion of a duty, or to a
virtual refusal to perform the duty enjoined or act in contemplation of law" or
that the tribunal, board or o cer with judicial or quasi-judicial powers "exercised
its power in an arbitrary and despotic manner by reason of passion or personal
hostility." aDSIHc

Without these allegations, the petition should not be given due

course . At the risk of repetition, the presence of grave abuse of discretion must
be alleged lest a special civil action under Rule 65 become a mere substitute for
an appeal. (Emphases supplied; citations omitted). 9
Notable in the petition for certiorari before the CA that it did not identify the
NLRC's speci c acts constituting grave abuse of discretion. Rather, the petitioner
asked the CA to re-examine the evidence presented and to make a nding that she had
been constructively dismissed. The petitioner herein admittedly failed to allege the core
requirement of a Rule 65 petition — the presence of grave abuse of discretion. However,
litigants cannot simply le a pleading denominated as a special civil action for
certiorari, but which instead raises errors in judgment and is, in truth, an appeal. An
appeal and a special civil action for certiorari are, after all, not interchangeable
remedies. 1 0
Plainly, the CA committed no reversible error in this regard.
Even if we were to be liberal in the application of procedural rules in this instance
and pass upon the substantive issues, We fail to nd any su cient cause to hold the
respondent company for illegal dismissal.
As regards her preventive suspension, the petitioner claimed that mere extension
of her preventive suspension beyond the maximum period already amounted to
constructive dismissal.
We disagree.
In Agcolicol, Jr. v. Casiño, 1 1 We said:
An employee is considered to be constructively dismissed from service if
an act of clear discrimination, insensibility or disdain by an employer has
become so unbearable to the employee as to leave him or her with no option but
to forego with his or her continued employment.
From said de nition, it can be gathered that various situations, whereby
the employee is intentionally placed by the employer in a situation which will
result in the former's being coerced into severing his ties with the latter, can
result in constructive dismissal. One such situation is where an employee is
preventively suspended pending investigation for an indefinite period of time.
At this point it is well to note that not all preventive suspensions are
tantamount to constructive dismissal. The employer's right to place an
employee under preventive suspension is recognized in Rule XXIII, Implementing
Book V of the Omnibus Rules Implementing the Labor Code. 1 2 x x x
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 Preventive suspension is justi ed where the employee's continued employment
poses a serious and imminent threat to the life or property of the employer or of the
employee's co-workers. 1 3 It may be legally imposed against an employee whose
alleged violation is the subject of an investigation. The purpose of preventive
suspension is to prevent the employee from causing harm or injury to the company as
well as to his fellow employees. 1 4
In here, We nd the petitioner's extended suspension as justi ed. The
investigations conducted by the respondent company and the NBI lasted beyond thirty
(30) days that resulted in the inadvertent extension of the petitioner's suspension. Note
herein, that the petitioner, as Assistant Restaurant Manager, had access to cash sales
as well as other properties of the store she was assigned in. She held a position of
responsibility which necessarily required the full trust and con dence from her
employer.
Nonetheless, the Court agrees with the NLRC that the respondents should be
sanctioned for the period corresponding to the extension of the preventive suspension
by directing them to pay the petitioner her salary from March 14 to April 12, 2005 and
the amount of P1,000.00 as indemnity in keeping with law and jurisprudence. 1 5
Anent the petitioner's argument that she had been constructively dismissed
since she was asked to resign and threatened with demotion, we cannot give credence
to the same. The NLRC correctly ruled that it is not an unlawful practice to ask an erring
employee to resign. In Central Azucarera de Bais, Inc. v. Siason , 1 6 this Court has held
that: ETHIDa

It is not uncommon that an employee is permitted to resign to avoid the

humiliation and embarrassment of being terminated for just cause after the
exposure of her malfeasance. 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. 1 7
Neither can We declare herein that petitioner was demoted. As the NLRC had
aptly observed, there was no showing that the petitioner was given a position lower
than Assistant Manager or that there was a decrease in her pay. The records only bear
that certain duciary duties were withheld from her in light of the nature of the charge
against her but without any demotion in rank or diminution of benefits. 1 8
Fair evidentiary rules dictate that before employers are burdened to prove that
they did not commit illegal dismissal, it is incumbent upon the employee to rst
establish by substantial evidence the fact of his or her dismissal. It is an age-old rule
that the one who alleges a fact has the burden of proving it and the proof should be
clear, positive and convincing. Mere allegation is not evidence. 1 9
The NLRC had pertinently observed that there had been no indication that the
respondent had noti ed the petitioner that she was terminated from o ce or that it
had prevented the petitioner from returning to work after her alleged April 12, 2005
conversation with respondent Ang. 2 0 Plainly, the petitioner failed to prove that she had
been dismissed by the respondents.
Accordingly, where there is no dismissal, legal or illegal, no retribution nor
compensation to the employee involved is due from the employer. 2 1 Thus, the NLRC
did not err in deleting the Labor Arbiter's award of separation pay and damages. The
only monetary claims that can be awarded are those that were actually owing to the
employee. 2 2 Accordingly, the petitioner is entitled to her earned but unpaid salary and
her prorated 13th month pay, apart from her salary and the indemnity to be paid for the
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 extension of her preventive suspension. Thus, the NLRC's modi cation of the Labor
Arbiter's monetary awards is sustained.
WHEREFORE , the Court DENIES the present petition and AFFIRMS the Court of
Appeals decision dated September 13, 2010 and resolution dated February 7, 2011 in
CA-G.R. SP No. 102875. No pronouncement as to costs of suit.
SO ORDERED."

Very truly yours,

(SGD.) LIBRADA C. BUENA

Division Clerk of Court

Footnotes
1. Rollo, pp. 31-39; penned by Associate Justice Antonio L. Villamor, with Associate Justice
Jose C. Reyes, Jr. (now a Member of this Court), and Associate Justice Amy C. Lazaro-
Javier, concurring.

2. Id. at 102-103.
3. Id. at 123-124.
4. Id. at 32-34.
5. Id. at 100-101.

6. Id. at 112-113.
7. Id. at 37-38.
8. G.R. No. 194944, September 18, 2017, 840 SCRA 37.
9. Id. at 53-54.
10. G.V. Florida Transport, Inc. v. Tiara Commercial Corp., G.R. No. 201378, October 18, 2017,
842 SCRA 576, 592.
11. G.R. No. 217732, June 15, 2016, 793 SCRA 692.

12. Id. at 705-706.

13. Artificio v. National Labor Relations Commission, G.R. No. 172988, July 26, 2010; 625 SCRA
435, 444.
14. Mandapat v. Add Force Personnel Services, Inc., G.R. No. 180285, July 6, 2010, 624 SCRA
155, 162.

15. JRS Business Corporation v. National Labor Relations Commission, G.R. No. 108891, July
17, 1995, 246 SCRA 445, 450.

16. G.R. No. 215555, July 29, 2015, 764 SCRA 494.
17. Id. at 503.
18. Rollo, p. 108.
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 19. Noblejas v. Italian Maritime Academy Phils., Inc., G.R. No. 207888, June 9, 2014, 725 SCRA
570, 579.
20. Rollo, p. 111.

21. Arc-Men Food Industries Corporation v. National Labor Relations Commission, G.R. No.
127086, August 22, 2002, 387 SCRA 560, 568.
22. Maria De Leon Transportation, Inc. v. Macuray , G.R. No. 214940, June 6, 2018.

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