LABOR LAW; Illegal Dismissal; While Employer has the Burden of Proving that Dismissal was for a Valid or Authorized Cause, Employee must First Establish the Fact of Dismissal from Service by Substantial Evidence

Canedo v. Kampilan Security and Detective Agency, Inc.,

G.R. No. 179326, 31 July 2013.

Employee must first prove the fact of dismissal, before Employer may be asked to prove validity thereof.

“In illegal dismissal cases, "[w]hile the employer bears the burden . . . to prove that the termination was for a valid or authorized cause, the employee must first establish by substantial evidence the fact of dismissal from service." The burden of proving the allegations rests upon the party alleging and the proof must be clear, positive and convincing. Thus, in this case, it is incumbent upon petitioner to prove his claim of dismissal.” (Emphasis and underscoring supplied)

Certification not enough proof that dismissal was effected; Floating Status not unusual for security guards employed in security agencies; Floating Status can only ripen to constructive dismissal when it goes beyond the 6-month maximum period allowed by law.

“Petitioner relies on the word "terminated" as used in the June 25, 2003 Certification issued him by respondent Arquiza and argues that the same is a clear indication that he was dismissed from service. We are, however, not persuaded. Petitioner cannot simply rely on this piece of document since the fact of dismissal must be evidenced by positive and overt acts of an employer indicating an intention to dismiss. Here, aside from this single document, petitioner proffered no other evidence showing that he was dismissed from employment. While it is true that he was not allowed to report for work after the period of his suspension expired, the same was due to NPC's request for his replacement as NPC was no longer interested in his services. And as correctly argued by respondents, petitioner from that point onward is not considered dismissed but merely on a floating status. "Such a 'floating status' is lawful and not unusual for security guards employed in security agencies as their assignments primarily depend on the contracts entered into by the agency with third parties."

Countering such status, petitioner contends that even at present, he is still not given any new duties. A floating status can ripen into constructive dismissal only when it goes beyond the six-month maximum period allowed by law. In this case, petitioner filed the Complaint for illegal dismissal even before the lapse of the six-month period. Hence, his claim of illegal dismissal lacks basis. Moreover and as aptly observed by the NLRC, it was in fact petitioner who intended to terminate his relationship with respondents through his planned retirement. This is further bolstered by his prayer in his Complaint where he sought for separation pay and not for reinstatement.

At any rate, upon a close reading of the June 25, 2003 Certification, this Court is of the opinion that petitioner was not dismissed from service. The import of the said Certification is that petitioner was assigned in NPC from November 20, 1996 up to May 7, 2003 and that on May 7, 2003, respondents terminated his assignment to NPC upon the latter's request. This is the correct interpretation based on the true intention of the parties as shown by their contemporaneous and subsequent acts and the other evidence on record as discussed above. Section 12 of Rule 130 of the Rules of Court states that in the construction and interpretation of a document, the intention of the parties must be pursued. Section 13 of the same Rule further instructs that the circumstances under which a document was made may be shown in order to ascertain the correct interpretation of a document.” (Emphasis and underscoring supplied)