G.R. No.

196557, June 15, 2016 Balais failed to comply with this policy as the latter allegedly
GREGORIO "TONGEE" BALAIS, JR., Petitioner, v. SE'LON BY gave preference to only two (2) junior stylists, disregarding
AIMEE, AMELITA REVILLA AND ALMA the other two (2) junior stylists.
BELARMINO, Respondents. When Belarmino asked Balais for explanation, the latter
allegedly snapped and retorted that he would do whatever
FACTS he wanted.
Balais filed a complaint for illegal dismissal, non-payment of Belarmino reminded him of the salon's policy and his duty
13th month pay, damages and attorney's fees against Se'lon to comply with it but petitioner allegedly insisted he would
by Aimee, Amelita Revilla and Alma Belarmino do as he pleased and if they can no longer take it, they would
have to dismiss him.
Balais was Salon de Orient's senior hairstylist and make-up After the incident, Balais sued them and never reported
artist when respondent Amelita Revilla (Revilla) took over the back to work.
business.
Revilla retained his services as senior hairstylist and make- Respondents insisted that Balais was not terminated from
up artist. employment but he instead abandoned his work.
Salon De Orient became Se'lon by Aimee and respondent Even assuming that he was indeed dismissed, there was a
Alma Belarmino (Belarmino) was appointed as its salon valid ground therefor as his acts amounted to serious
manager, who was in-charge of paying the employees' wages, misconduct against a superior and willful disobedience to
dismissing erring employees, and exercising control over reasonable policy related to his work.
them.
Balais allegedly had the discretion to choose from among Labor Arbiter
the junior hairstylist who should assist him in servicing his Respondents liable for illegal dismissal
clients, as customarily observed in beauty salons. Balais' was dismissed without cause and notice for merely
He worked during the 10am-7pm shift or 11am-8pm shift, defending his decision to avail of the services of some
six (6) days a week with Sunday as his regular rest day for a selected junior stylist of his choice
monthly salary of Php18,500.00 paid every two (2) weeks.
In June 2008, his salary was reduced to Php15,000.00. NLRC
Balais claimed that his working relationship with Affirmed in toto the findings of the Labor Arbiter
respondents had been harmonious until the evening of July 1, Petitioner illegally dismissed
2008 when Belarmino dismissed him without due process, in Se'lon by Aimee failed to prove that the act of petitioner
the following manner: amounted to gross insubordination
Respondents failed to produce a copy of the supposed
Belarmino angrily shouted: "You get out of this Company! I do salon policy on the rule of rotation of junior stylists, thus, the
not need you here at Se'lon by Aimee!" veracity of the allegation of insubordination against Balais
Balais Jr., calmly replied: "Ibigay mo ang 13th month ko and failed to convince
sweldo ko, at separation pay."
Belarmino angrily replied: "Maghabla ka kahit saan na korle Court of Appeals reversed and set aside the NLRC Decision
at haharapin kita." and rendered a Decision sustaining petitioner's dismissal as
valid and required respondents to pay Balais his accrued
Balais Jr. responded: "Maski ang Jollibee nagbibigay nang 13th month pay and unpaid salaries.
13th month pay, sweldo and separation pay pag may
tinatanggal na empleyado!" ISSUE
W/N PETITIONER WAS VALIDLY DISMISSED NO
Belarmino retorted: "Eh di doon ka magtrabaho sa Jollibee
kasi doon nagbibigay sila nang 13th month pay, sweldo at HELD
separation pay pag may tinatanggal na empleyado." Whether there was a valid dismissal.
Balais felt humiliated as he was berated in front of his co-
workers. The next day, he did not report for work anymore The onus of proving that the employee was dismissed for a
and instead filed the complaint before the NLRC. just cause rests on the employer, and the latter's failure to
discharge that burden would result in a finding that the
Respondents alleged that it was known to all their dismissal is unjustified.
employees that one of the salon's policies was for junior
stylists to take turns in assisting any of the senior stylists for In the instant case, both parties presented their own versions
purposes of equalizing commissions. of stories, not necessarily contradicting but nonetheless
lacking in some material points.

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 Balais alleged that he was illegally dismissed as his dismissal NO ABANDONMENT BY EMPLOYEE
was allegedly made verbally and without due process of law. Respondents failed to establish that Balais abandoned his
Yet, Balais failed to explain what possibly prompted said work.
termination or even the likely motive for the same.
He nevertheless submitted the Affidavits of Gemma To constitute abandonment, two elements must concur:
Guerero and Marie Gina A. Toralde, to prove his allegation. (a) the failure to report for work or absence without valid or
justifiable reason, and
Respondents alleged that there was no illegal dismissal as it (b) a clear intention to sever the employer-employee
was Balais himself who did not report to work, thus, he relationship, with the second element as the more
abandoned his work. determinative factor and being manifested by some overt
acts
Both parties never denied that there was an altercation Mere absence is not sufficient.
between them. The employer has the burden of proof to show a deliberate
and unjustified refusal of the employee to resume his
Respondents never denied that the incident narrated by employment without any intention of returning.
Balais actually happened.
Respondents, other than their bare allegation of
In Solas v. Power & Telephone Supply Phils., Inc., this silence abandonment, failed to prove that these two elements were
constitutes an admission that fortifies the truth of the met.
employee's narration. It cannot be said that Balais failed to report back to work
While respondents were evasive on the complete details of without justifiable reason as in fact he was told that he was
how the reported incident of termination transpired, they no longer wanted in the salon.
never categorically denied that said incident happened or the
fact that Belarmino uttered: "get out of this company! I do The high improbability of petitioner intentionally
not need you here." abandoning his work, taking into consideration his length of
Belarmino attempted to sidestep the fact that she actually service, i.e., 18 years of service with the salon, ft does not
said it, yet, raised the defense that assuming she had indeed make sense for an employee who had worked for his
verbally terminated Balais, she was justified in doing so employer for 18 years would just abandon his work and
because of the disrespect shown to her. forego whatever benefits he may be entitled, unless he was
made to believe or was told that he was already terminated.

Under the rules of evidence, if an allegation is not specifically Respondents cannot discharge the burden of proving a valid
denied or the denial is a negative pregnant, the allegation is dismissal by merely alleging that they did not dismiss Balais;
deemed admitted. neither can they escape liability by claiming that Balais
abandoned his work.
The fact that respondents are even raising their own When there is no showing of a clear, valid and legal cause
justification for the alleged verbal dismissal means that the for the termination of employment, the law considers it a
said verbal dismissal actually transpired. case of illegal dismissal.
If in the first place, said incident of verbal dismissal truly
never happened, there is nothing to assume anymore or to NO INSUBORDINATION BY EMPLOYEE
justify.
The fact that Belarmino was offering justification for her Willful disobedience of the employer's lawful orders, as a just
action, it follows that indeed said incident of verbally cause for the dismissal of an employee, envisages the
dismissing Balais on-the-spot actually happened. concurrence of at least two requisites:
(1) the employee's assailed conduct must have been willful or
Putting two versions of the story together, considering that intentional, the willfulness being characterized by a "wrongful
none of the parties categorically deny that an altercation and perverse attitude;" and
erupted between them which resulted in the dismissal of (2) the order violated must have been reasonable, lawful,
Balais, and the tenor of Belarmino's statements leaving no made known to the employee and must pertain to the duties
room for interpreting it other than a verbal dismissal, we are which he had been engaged to discharge
inclined to believe that there was indeed a dismissal.
The burden of proving the insubordination as a just and valid
It becomes axiomatic that respondents prove that the cause for dismissing an employee rests on the employer and
dismissal was valid. his failure to do so shall result in a finding that the dismissal is
unjustified.

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 In this case, the salon policy of rotating the junior stylists
who will assist the senior stylist appears to be reasonable,
lawful, made known to petitioner and pertained to his duty as OTHER ISSUES
senior hairstylist of respondent.
However, if we will look at Balais' explanation for his Whether the dismissal was effected with due process of law.
alleged disobedience thereto, it likewise appears to be YES. WITHOUT DUE PROCESS.
reasonable and lawful, to wit:
Under Article 211(b) of the Labor Code, the employer must
xxxx send the employee who is about to be terminated, a written
The duty of the Senior Stylist has the overall function in seeing notice stating the cause/s for termination and must give the
to it that the service accorded to the client is excellent, thus, employee the opportunity to be heard and to defend himself.
he has the right to refuse service of a junior stylist whom he
thinks that such junior stylist cannot give equal or over and Article 277 of the Labor Code provides, inter alia:
above the service that he can give to the client, thus his (a) x x x
refusal to obey the respondent does not constitute a just
cause for the treatment given by respondent to herein (b) Subject to the constitutional right of workers to security of
respondent (sic). tenure and their right to be protected against dismissal
xxxx except for a just and authorized cause and notice under
Article 283 of this Code, the employer shall furnish the
The fact alone that Balais failed to comply with the salon worker whose employment is sought to be terminated a
policy does not establish that his conduct in failing to comply written notice containing a statement of causes for
with the salon's policy had been willful, or characterized by a termination and shall afford the latter ample opportunity to
wrongful and perverse attitude. be heard and to defend himself with the assistance of his
Balais' justification maybe adverse to that of the salon's representative if he so desires in accordance with company
policy but it was neither willful nor characterized by a rules and regulations promulgated pursuant to guidelines set
perverse attitude. by the Department of Labor and Employment. x x x
The alleged non-compliance with the salon policy was In particular, Rule XXIII, Book V of the Omnibus Rules
brought to the attention of Balais for the first time only Implementing the Labor Code states:
during the said incident.
There was no showing of prior warnings as to his non- Sec. 2. Standards of due process: requirements of notice. - In
compliance. all cases of termination of employment, the following
While respondents wield a wide latitude of discretion in the standards of due process shall be substantially observed:
promulgation of policies, rules and regulations on work-
related activities of its employees, these must, however, be 1. For termination of employment based on just causes as
fair and reasonable at all times, and the corresponding defined in Article 282 of the Code:
sanctions for violations thereof, when prescribed, must be
commensurate thereto as well as to the degree of the (a) A written notice served on the employee specifying the
infraction. ground or grounds for termination, and giving to said
Given that Balais' preference on who will assist him is based employee reasonable opportunity within which to explain
on the junior stylists' competence, the same should have his side;
been properly taken into account in the imposition of the (b) A hearing or conference during which the employee
appropriate penalty for violation of the rotation policy. concerned, with the assistance of counsel if the employee so
Suspension would have sufficed to caution him and other desires, is given opportunity to respond to the charge,
employees who may be wont to violate the same policy. present his evidence or rebut the evidence presented against
him; and
In adjudging that the dismissal was grounded on a just and (c) A written notice of termination served on the employee
valid cause, the totality of infractions or the number of indicating that upon due consideration of all the
violations committed during the period of employment shall circumstances, grounds have been established to justify his
be considered in determining the penalty to be imposed upon termination.
an erring employee.
Let it not be forgotten that what is at stake is the means of Thus, to effect the dismissal of an employee, the law
livelihood, the name, and the reputation of the employee. requires not only that there be just and valid cause as
To countenance an arbitrary exercise of the management's provided under Article 282 of the Labor Code.
prerogative to terminate an employee is to negate the It likewise enjoins the employer to afford the employee the
employee's constitutional right to security of tenure. opportunity to be heard and to defend himself.

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On the latter aspect, the employer is mandated to furnish the Petitioner is entitled to an award of full backwages from the
employee with two (2) written notices: time he was illegally dismissed up to the finality of this
(a) a written notice containing a statement of the cause for decision
the termination to afford the employee ample opportunity to
be heard and defend himself with the assistance of his Balais is likewise entitled to attorney's fees in the amount of
representative, if he so desires; 10% of the total monetary award pursuant to Article 111 of
(b) if the employer decides to terminate the services of the the Labor Code.
employee, the employer must notify him in writing of the
decision to dismiss him, stating clearly the reason therefor. Settled where an employee was forced to litigate and, thus,
incur expenses to protect his rights and interest, the award of
Belarmino's manner of verbally dismissing Balais on-the- attorney's fees is legally and morally justifiable.
spot fell short of the two-notice requirement. Finally, legal interest shall be imposed on the monetary
There was no showing of prior warnings on Balais' alleged awards herein granted at the rate of six percent (6%) per
non-compliance with the salon policy. annum from the finality of this judgment until fully paid.
There was no written notice informing him of his dismissal
as in fact the dismissal was done verbally and on-the-spot. GUILTY OF ILLEGAL DISMISSAL AND ARE hereby ORDERED to
Respondents failed to furnish Balais the written notice pay the petitioner, Gregorio Balais, Jr., the following:
apprising him of the charges against him, as prescribed by the
Labor Code. (a) separation pay in lieu of actual reinstatement equivalent
There was no attempt to serve a notice of dismissal on to one (1) month pay for every year of service, with a fraction
Balais. Consequently, he was denied due process of law of at least six (6) months considered as one (1) whole year
accorded in dismissals. from the time of his dismissal up to the finality of this
Decision
Reliefs of Illegally Dismissed Employees (b) full backwages from the time of his illegal dismissal up to
the finality of this Decision;
"An illegally dismissed employee is entitled to (c) Attorney's fees equivalent to ten percent (10%) of the
reinstatement as a matter of right." Aside from the instances total monetary award
provided under Articles 28317 and 284 of the Labor Code,
separation pay is, however, granted when reinstatement is no The monetary awards herein granted shall earn legal interest
longer feasible because of strained relations between the at the rate of six percent (6%) per annumfrom the date of the
employer and the employee. finality of this Decision until fully paid.
In cases of illegal dismissal, the accepted doctrine is that
separation pay is available in lieu of reinstatement when the
latter recourse is no longer practical or in the best interest of
the parties

Other than the strained relationship between the parties, it

appears that respondent salon had already ceased operation
of its business, thus, reinstatement is no longer feasible.
Consequently, the Court awards separation pay to the
petitioner equivalent to one (1) month pay for every year of
service, with a fraction of at least six (6) months considered
as one (1) whole year, from the time of her illegal dismissal
up to the finality of this judgment, as an alternative to
reinstatement.

Employees who are illegally dismissed are entitled to full

backwages, inclusive of allowances and other benefits or
their monetary equivalent, computed from the time their
actual compensation was withheld from them up to the time
of their actual reinstatement but if reinstatement is no longer
possible, the backwages shall be computed from the time of
their illegal termination up to the finality of the decision.

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