3Republic of tbe ilbilippines

~upreme QC:ourt
;!ftilanila

FIRST DIVISION

DOMINGO P. GIMALAY, G.R. No. 240123 &

Petitioner, G.R. No. 240125

Members:
-versus-
PERALTA, C.J., Chairperson
CAGUIOA,
COURT OF APPEALS, GRANITE REYES, J., JR.,
SERVICES INTERNATIONAL, LAZARO-JAVIER, and
INC., JOSEPH MEDINA, DANIEL LOPEZ, JJ.
SARGEANT,* and APRIL ANNE
JUNIO,** Promulgated:
Respondents.
JUN 172020
x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

DECISION

LAZARO-JAVIER, J.:

The Case

This petition for review on certiorari 1 seeks to reverse the following

dispositions of the Court of Appeals in CA-G.R. SP No. 130731 and CA-
G.R. SP No. 134905:

1. Decision2 dated August 18, 2017 reversing the decision of the

National Labor Relations Commission (NLRC) and declaring as valid the
dismissal of petitioner Domingo P. Gimalay; and

• Sometimes spelled in the records as "Seargent."

•• Not included as a pa1ty in the cases before the labor tribunals and the Court ofAppeals.
Rollo, pp. 3-I 9.
2 Penned by Associate Justice Eduardo B. Peralta, Jr. and concurred in by Associate Justice Priscilla J.
Baltazar-Padilla and Associate Justice Pedro B. Corales, rollo, pp. 20-45.
Decision 2 G.R. Nos. 240123
& 240125

2. Resolution3 dated May 29, 2018 denying petitioner's motion for

reconsideration.

Antecedents

On February 2, 2004, private respondent Granite Services

International, Inc. (Granite Services) hired petitioner Domingo P. Gimalay
as mechanical technician/rigger on a project-based employment. On January
1, 2007, petitioner was hired as a regular member of the company's work
pool.

Petitioner's contract with Granite Services required him to work on

various projects at different locations here and abroad. For his assignment
abroad, he would receive compensation based on the stipulated rates. For the
periods that he was out of assignments, he would be entitled to P15,000.00
as monthly retainer or waiting fee. This amount was later increased to
P18,000.00 on January 1, 2009. 4

On January 25, 2012, petitioner was deployed to Ghana, Africa for

a two (2) month contract on a monthly salary ofUSD900.00. 5

Private respondents alleged that on February 23 and 24, 2012,

petitioner repeatedly violated Granite Services' safety code. First, he was
allegedly spotted working on top of a compressor casing at the back of a
trailer instead of working from the trailer. Second, petitioner allegedly did
not give proper clearance to the crane operator causing a compressor casing
to swing towards an employee which could have caused serious danger to
the latter's life. Lastly, ·petitioner allegedly stood on top of a turbine without
a safety harness. Outage Excellence Leader Alan Carruth saw and reported
these transgressions via e-mail to Granite Services' Human Resource
Manager, private respondent Daniel Sargeant. A few days later, Service
Manager Bonifacio Quedi launched a formal investigation. Meanwhile,
petitioner completed his overseas contract and returned to the Philippines on
March 3, 2012. 6

On March 5, 2012, Service Manager Quedi called petitioner to a

meeting and asked him to explain why he should not be dismissed for gross
misconduct. Another meeting took place between them together with HR
Manager Sargeant. On March 7, 2012, a formal notice of termination was
served on petitioner. 7

3
Id. at 47-50.
4
Id. at 450-451.
5
Id. at 232 and 451.
6
Id. at 451.
7
Id. at 451-452.

/)
Decision 3 GR. Nos. 240123
& 240 125

Petitioner avened that on March 7, 2012, Granite Services' security

guard prevented him from entering its premises. He claimed that even
assuming that the alleged incidents were true, the penalty of dismissal was
not commensurate to his so-called infractions.

The Labor Arbiter's Ruling

By Decision8 dated August 31, 2012, Labor Arbiter Alberto B. Dolosa

granted the relief prayed for and declared petitioner to have been illegally
dismissed:

WHEREFORE, premises considered, judgment is hereby

entered declaring that the dismissal of complainant IILEGAL for failure
of the respondents to substantially prove just cause and observance of
due process. Consequently, respondents GRANITE SERVICES
INTERNATIONAL INC. is hereby ordered to pay complainant
DOMINGO P. GIMALAY, as of the date of this Decision, the following
judgment awards:

1. Backwages - Pl26,000.00
2. Separation Pay, in lieu of reinstatement - 162,000.00
3. 10% Attorney's Fees 28,800.00
TOTAL P316,800.00

All other claims are dismissed for lack of merit.

SO ORDERED. 9

Labor Arbiter Dolosa held that there was no concrete and credible
evidence to substantially prove the incidents attributed to petitioner. There
was also no concrete and credible evidence that the company launched a
formal investigation affording petitioner a chance to explain his side. In any
case, the infractions were for "near misses." The labor arbiter found that no
actual accident happened, no one was injured, and no damage was inflicted.
Hence, the labor arbiter opined that admonition or reprimand would have
been the commensurate penalty, not dismissal. 10

The labor arbiter, however, ruled that since petitioner had already
completed his contract abroad at the time he was dismissed from his work,
his backwages should be based on his monthly retainer or waiting fee of
P18,000.00 and not on his monthly salary of USD900.00 when the alleged
incidents happened. 11 Further, labor arbiter Dolosa ordered payment of
separation pay in lieu of reinstatement because:

8 Id. at 449-460.
9 Id. at 459-460.
10
Id. at 455-456.
11
Id. at 457-458.
Decision 4 GR. Nos. 240123
& 240125

x x x reinstatement is no longer feasible because of the existence of

strained relation between the parties and the respondent's lack of intention
to reinstate the complainant by their offer, by way of amicable settlement,
of separation pay during the mandatory conference. Notably, the
settlement through payment of separation pay failed to materialize because
of the parties' disagreement as to the rate of pay to be used. 12

Both parties appealed to the NRLC. On one hand, private respondents

argued that petitioner was dismissed for cause; on the other, petitioner
claimed that the basis for his backwages should be his latest monthly salary
in Ghana in the amount of USD900.00. He did not anymore question the
directive to pay separation benefits in lieu of reinstatement. His appeal, in
fact, was only focused on the amount of separation benefits awarded him.

The NLRC's Ruling

Through its Decision 13 dated March 7, 2013, the NLRC affirmed with
modification:

Having established the illegality of the dismissal, We sustain the

grant of full backwages computed from the date the Complaint was
dismissed up (to) the finality of this Decision, on top of the separation pay
computed from January 1, 2007 likewise up to the finality of this
Decision.

Both awards are based on his latest monthly salary of P264,867 .17
per pay slip marked as Annexes "6-C" and "6-D", broken down as
follows:

Salary from February 1, to 15, 2012 == P106,997.73 per Annex 6-C

Salary from February 16 to 28, 2012 == P157,869.44 per (A)nnex 6-D
Total P264,867.17

Simple logic made it clear that the Complainant was hired to work,
not to stand-by and do nothing. He was hired to work as Rigger and
Mechanical Techinician abroad whose latest monthly salary paid to him
on February 29, 2012 as such was, as computed above, P264,867. l 7 for
the month of February, 2012 (Annexes 6-C and 6(-)D/Complainant's
Position Paper) therefore it should be the basis of his backwages and
separation pay. The "waiting fee or retainer fee" cannot be considered as
his monthly salary as Rigger and Mechanical Technician because during
the waiting period, he was not doing the work for which he was being
employed.

Forced to litigate to protect his rights, the Complainant is entitled

to an award of attorney's fees not exceeding 10% of the judgment award.

12
Id. at 457.
13
Penned by Commissioner Numeriano D. Villena and concurred in by Presiding Commissioner
Herminio V. Suelo and Commissioner Angelo Ang Palafia, id. at 51-61.
Decision 5 G.R. Nos. 240123
& 240125

Accordingly, the Decision is MODIFIED in that the Respondents are

ordered to pay the Complainant, tentatively, the following:

1. Backwages: -
I . Basic
3/7/2012 (date dismissed) up to 2/7/2012 (date of this
Decision)
P264,867. I 7 x 11 months= P2,913,538.87

2. 13 th Month Pay: -
P2,913,538.87/12 = P 242,794.906

3. Service Incentive Leave Pay

P264,867 .1 7

26
= Pl0,187.20 x 11/12 x 11 months

= Pl02,720:90 (SILP)
2. Separation Pay: -
1/1/2007 up to 2/7/2012

P264,867. I 7 x 6 years = Pl,587,403 .02

TOTAL = P4,846,457.70

3. Attorney's fees of 10% = P484,645.77

Total Award = PS,331 ,103.47

SO ORDERED. 14

The NLRC agreed with the labor arbiter that there was no concrete
and credible evidence to substantially prove the "near miss" incidents
attributed to petitioner. There was also no proof that Outage Excellence
Leader Carruth was petitioner's supervisor, and therefore, he could not be
considered a competent witness. There was similarly no hard evidence to
prove that a fonnal investigation was held and that petitioner was given the
chance to explain his side. In the absence of substantial and procedural due
process, petitioner was illegally dismissed. 15

The NLRC, however, ruled that for purposes of computing the

backwages, petitioner's salaries abroad must be considered. Hence,
petitioner' s average monthly salary, taking into account his retainer fee and
monthly salaries abroad, should be the basis for the computation of the
award ofbackwages. 16

14 Id. at 59-60.
15 Id. at 57-58.
16
Id. at 57.

I)
Decision 6 G.R. Nos. 240123
& 240125

In its Resolution 17 dated May 15, 2013, the NLRC denied private
respondents' motion for reconsideration. 18

Proceedings Before the Court of Appeals

Private respondents assailed the NLRC's Decision and Resolution via

petition for certiorari before the Court of Appeals under CA-G.R. SP No.
130731.

Meantime, the NLRC issued an Entry of Judgment on June 25, 2013. 19

Pursuant thereto, the labor arbiter issued the Writ of Execution dated August
29, 2013. In the implementation thereof, the bank accounts and appeal bond
of Granite Services were garnished. Even then, private respondents
voluntarily complied with the Writ of Execution and deposited the amount
of PS,014,303.47 constituting the judgment award less the amount covered
by the appeal bond (P316,800.00). 2°Following the release of the full amount
of PS,014,303.47, private respondents moved to lift the notices of
garnishment. Under Order dated September 30, 2013 , the labor arbiter
denied the motion to lift the notices of garnishment. He also directed the
NLRC Cashier to release the PS,014,303.47 to petitioner.21

Petitioner then sought an alias writ of execution to cover his additional

claim of P2,872,450.52. Meantime, private respondents filed second motion
to lift the notice of garnishment which the labor arbiter Dolosa granted per
Order dated October 21, 2013.22 Petitioner thus filed a Petition for
Extraordinary Remedy with the NLRC to annul the aforesaid order and grant
his monetary award of P3,188,083.87.

Under Resolution dated January 28, 2014, the NLRC granted

petitioner's claim but only to the extent of Pl,359,651.45 and directed labor
arbiter to issue the corresponding Alias Writ of Execution for collection of
petitioner's remaining monetary awards.23

In its subsequent Order dated February 25, 2014, the NLRC denied
private respondents' motion for reconsideration. 24

Private respondents, too, went back to the Court of Appeals via CA-
G.R. SP No. 134905 to question the NLRC Resolution dated January 28,

17
Penned by Commissioner Numeriano D. Villena and concurred in by Presiding Commissioner
Herminio V. Suelo and Commissioner Angelo Ang Palafia, id. at 217-220.
18
Id. at 550-565.
19
Id. at 24.
20
Id. at 25.
21 Id.
22
Id. at 25-26.
23
Id. at 26-27.
24 Id.
Decision 7 GR. Nos. 240123
& 240125

2014 granting petitioner's claim and Order dated February 25, 2014 denying
their motion for reconsideration. This petition was consolidated with CA-
G.R. SP No. 130731.

Proceedings Before the Court of Appeals

CA-G.R. SP No. 130731

Private respondents argued that petitioner was validly dismissed for

serious misconduct and willful disobedience of company safety rules. They
claimed that petitioner himself did not deny the incidents.

In the alternative, private respondents claimed that, if at all, petitioner

was entitled to his additional money claims, the NLRC should have pegged
it at P 18,000.00, petitioner's monthly retainer/waiting fee. It was the amount
he was receiving as salary when he got terminated. The stipulated salary for
his overseas work in Ghana had become functus oficio because it was
already a terminated and completed contract. 25

CA-G.R. SP No. 134905

Private respondents claimed that the NLRC should not have

ente1iained petitioner's Petition for Extraordinary Remedy because Section
15, Rule XII of the 2011 NLRC Rules of Procedure expressly stated that no
appeal from the order or resolution issued by the labor arbiter during the
execution proceedings shall be allowed or acted upon by the NLRC. They
also stressed that petitioner was no longer entitled to any additional award
due to the full satisfaction of the writ of execution. 26

The Court of Appeals' Ruling

In its assailed Decision27 dated August 18, 2017, the Court of Appeals
reversed the NLRC rulings:

WHEREFORE, premises considered, the twin Petitions are

GRANTED.

Accordingly, the assailed Decision of the NLRC on March 7, 2013

and Resolution on January 28, 2014 are hereby REVERSED. Necessarily,
private respondent Domingo Gimalay is hereby ordered to return to

25 Id. at 28-30.
26
Id. at 3 1-32.
27 Penned by Associate Justice Eduardo B. Peralta, Jr. and concmTed in by Associate Justice Priscilla J.
Baltazar-Padilla and Associate Justice Pedro 8. Corales, id. at 20-45.
Decision 8 G.R. Nos. 240123
& 240125

petitioners whatever amount he received pursuant to the Writ of Execution

dated August 29, 2013 and the Updated Writ of Execution issued pursuant
to the Order of the NLRC dated March 10, 2014, in conformity with
Section 14, Rule XI of the 2011 NLRC Rules of Procedure. Nevertheless,
petitioner-company is hereby ordered to pay private respondent nominal
damages in the amount of P30,000.00 on account of its failure to observe
procedural due process.

SO ORDERED. 28

The Court of Appeals held that petitioner was validly dismissed on

ground of gross misconduct for flagrantly disregarding safety processes and
procedures which endangered not only himself but others. Petitioner's
infractions were personally witnessed by Outage Excellence Leader
Carruth. 29 By signing Granite Services' Personal Safety Pledge, petitioner
acknowledged that his employment might be terminated for grave
misconduct or willful neglect in the discharge of duties. 30

The Court of Appeals nonetheless agreed with both the labor arbiter
and the NLRC that petitioner was denied due process. It held that private
respondents failed to comply with the twin requirements of notice and
hearing. It noted that there was no written notice of infraction served on
petitioner nor proof of the alleged meeting where petitioner was supposed to
have been afforded the opportunity to explain himself. For these
deficiencies, entitled petitioner to nominal damages of P30,000.00. 31

The Court of Appeals also held that petitioner is not entitled to

the relief of extraordinary remedy and the issuance of an alias writ of
execution. This flowed from his non-entitlement to backwages, separation
pay, attorney's fees, and additional compensation and benefits.32

Under its assailed Resolution33 dated May 29, 2018, the Court of
Appeals denied petitioner's motion for reconsideration.

The Present Petition

Petitioner now faults the Court of Appeals for finding he was validly
dismissed. He reiterates the factual findings of the labor arbiter and the
NLRC that he did not violate Granite Services' safety procedures. He cites
these tribunals' conclusion that there is no concrete and credible evidence to
substantiate the alleged infractions charged against him.

28 Id.at 44-45.
29
Id.at 37-39.
30 Id.at 41.
31
Id.at41-43.
32
Id.at 43.
33
ld.at47-50.
Decision 9 G.R. Nos. 240 123
& 240125

Petitioner further asserts that it was in fact Granite Services which

provided an unsafe environment for its workers. He did not wear a harness
during the third incident in question because there was no hangers or knobs
to which a harness could be hooked. But even assuming his act was a
violation of the safety code, this did not actually result in any damage to life
or property, aside from the fact that it was only his first offense in his eight
(8) years of service. This infraction does not call for the harshest penalty of
dismissal from service.34

More, petitioner avers that private respondents misled the Comi of

Appeals and the labor tribunals when they insisted that his employment
contract in Ghana had been completed. He was, in fact, repatriated to the
Philippines to pave the way for his next deployment to another country. His
repatriation, nonetheless, was just the start of the grand scheme to dismiss
him. 35

In their Comment36 dated February 8, 2019, private respondents seek

to dismiss the petition on procedural and substantial grounds.

On procedural grounds, private respondents stress that the petition

was filed one (1) day late. Petitioner received the copy of the Court of
Appeal's Resolution denying his motion for reconsideration on June 20,
2018, thus, giving him only until July 5, 2018 to file the present petition.
Since the petition was filed only on July 6, 2018, or one (1) day late, the
dispositions of the Court of Appeals had therefore become final and
executory. Hence, this Court no longer has jurisdiction to review these
rulings.

Private respondents bewail petitioner's availment of Rule 65 instead

of Rule 45 of the Revised Rules of Court. They too observe that the petition
was not verified. Neither was it accompanied by certified true copies of the
assailed Court of Appeals' rulings and pertinent pleadings. 37

In any event, private respondents assert that sufficient evidence was

presented to substantiate the charge of serious misconduct against petitioner.
They cite the e-mail of Outage Excellence Leader Carruth detailing
petitioner's infractions of Granite Setvices' safety code. There was also an
incident report which documented petitioner's misconduct. Petitioner never
contested the authenticity and accuracy of the contents of these documents. 38
Also, petitioner willfully and deliberately disregarded the safety procedures
laid out by Granite Services: (a) he was aware that the compressor casings
could not support substantial weight and could not be used as a platform; (b)
he failed to give the proper signal to the crane operator which almost caused

34
Id. at 12-13 and 16.
35 Id. at 14-15.
36 id. at 112-162.
37
/ d. at 116-13 I .
38
Id. at 132-136.
Decision 10 G.R. Nos. 240123
& 240125

injury to his co-worker; and (c) he willfully did not wear a safety harness
while working on top of a turbine though there was a line in place for a
harness, which was the same line used by his co-workers to attach their own
safety hamesses. 39

Private respondents conclude that petitioner's repeated violations of

safety precautions showed his indifference to and disregard of Granite
Services' policies and as a result, he must be dismissed from work. 40

Issues

1. Should the petition be dismissed for its alleged procedural lapses?

2. Did the Court of Appeals err in holding that petitioner was

dismissed for a valid cause?

Ruling

To begin with, the Court is not a trier of facts. It is not the Comi's
function to analyze or weigh evidence all over again in view of the corollary
legal precept that findings of fact of the Court of Appeals are conclusive and
binding on this Court. The Court, nonetheless, may proceed to probe and
resolve factual issues presented herein because the findings of the Court of
Appeals are contrary to those of the labor arbiter and the NLRC. 41

Procedural Issues

Private respondents assert that the assailed Court of Appeals' assailed

issuances had already become final and executory because the present
petition was filed one ( 1) day late.

This is inaccurate.

The petition was actually filed on time. Petitioner received the

assailed Court of Appeals Resolution denying his motion for reconsideration
on June 21, 2018,42 and not June 20, 2018 as private respondents
erroneously claim. Petitioner, therefore, had fifteen (15) days from June 21,
2018 or until July 6, 2018 within which to file the present petition. As
private respondents correctly claim, the petition was filed on July 6, 2018,
well within the 15-day reglementary period.

39
/d.at137-138.
40 ld.at144.
41
See Status Maritime Corporation, et al. v. Sps. Margarito B. Delalamon and Priscila A. Delalamon,
740 Phil. 175, 189(2014).
42
Rollo, p. 3.

1
Decision 11 G.R. Nos. 240123
& 240125

Another. Contrary to private respondents' claim, the pet1t1on was

accompanied by a certified true copy of the challenged Decision43 and an
original copy of the assailed Resolution.44

As for the verification and certification of non-forum shopping,

petitioner had already submitted to the Court a notarized verification and
certification of non-forum shopping45 as noted in our Resolution dated
November 12, 2018. 46

With regard to the correctness of the remedy availed of, petitioner has
labeled this petition as a "Petition/Appeal by Certiorari," albeit he cites
grave abuse of discretion amounting to lack or excess of jurisdiction. There
is nothing wrong with this for so long as it was initiated within fifteen (15)
days from receipt of the assailed resolution pursuant to Rule 45.

Substantial Issue

Both the labor arbiter and the NLRC held that private respondents
failed to substantiate the charge of serious or gross misconduct against
petitioner. The Court of Appeals, on the other hand, held that private
respondents were able to prove the alleged infractions.

In Distribution & Control Products, Inc. v. Santos, 47 the Court

reiterated that in termination cases, the burden of proof rests upon the
employer to show that the dismissal is for just and valid cause. Failure to do
so necessarily means that the dismissal was illegal. The employer's case
succeeds or fails on the strength of its evidence and not on the weakness of
the employee's defense. If doubt exists between the evidence presented by
the employer and the employee, the scales of justice must be tilted in favor
of the latter.

To prove petitioner's alleged violations of the safety procedures,

respondent company submitted the e-mail of Outage Excellence Leader
Carruth, 48 an Incident Report49 regarding petitioner's supposed failure to
sufficiently communicate with the crane operator, and the Termination
Letter50 signed by HR Manager Sargeant. The Court of Appeals considered
these documents sufficient to hold that petitioner was dismissed for cause.

We disagree.

43 Id. at 20-45.
44
Id. at 47-50.
45
Id. at 87.
46 Id.atII0-111.
47 813 Phil. 423, 433 (2017), citing Agusan Del Norte Electric Cooperative, Inc., et al. v. Cagampang, et
al., 589 Phil. 306, 313 (2008).
48
Rollo, p. 233.
49 Id. at 585-587.
50
Id. at 234-235.
Decision 12 G.R. Nos. 240123
& 240125

Petitioner was charged with three (3) violations of safety procedures,

viz.:

(a) He stood on top of the compressor casing on the back of a trailer,

when he should have been working.from the trailer;

(b) He was responsible for unclear communication between him and

the crane operator which caused a casing to swing towards another
employee; and

(c) He stood on top of a turbine with no safety harness.

As for the first iefraction, no evidence other than Outage Excellence

Leader Carruth's e-mail and the termination letter was presented to show
that petitioner indeed stood on top of the compressor. Would a reasonably
prudent person accept these documents as sufficient to prove the charge and
on the basis thereof dismiss the employee from work? Certainly not. These
pieces of evidence are self-serving documents which private respondents or
any other person could have easily drafted. As it was not impossible for
private respondents to access other witnesses, they should have secured the
statements of other workers on site to cmToborate their claim.

With regard to the second infraction, private respondents aver that

petitioner failed to clearly communicate with the crane operator before
signaling for the release of the casing. The Incident Rep01i itself, however,
states that he blew his whistle and gave the signal to the crane operator only
after he ''finished checking casing alignment/center of gravity." It shows that
petitioner took the necessary precautions before he gave the signal to the
crane operator. When the crane operator hoisted up the casing, the casing
swung to the left and narrowly missed another worker.

True, an accident could have occurred, but this does not necessarily
mean that petitioner failed to take the proper precautions or that the incident
was due to his fault. A lot of factors could have caused the casing to swerve
to the left. It could have been caused by the crane operator. It could have
also been caused by the mechanics of the crane itself. It was also possible
· that the employee who was nearly hit by the casing was not there when
petitioner gave the signal. In fine , there are several circumstances which
could have led to the incident. Private respondents did not investigate these
factors ; neither were they able to rule them out, like any reasonably prudent
person would have done. Without any investigation to support private
respondents' claim, it cannot be reasonably concluded that the incident was
due solely to petitioner's negligence.
Decision 13 GR. Nos. 240123
& 240125

As for the third and last incident, petitioner repeatedly avers that there
was no available line to which the safety harness could be attached; private
respondents insists such available line was in place.

Once again, private respondents did not present any evidence to

support this allegation. They could have produced photos showing that a line
was available for the harness which petitioner could have used at that time.
They could have easily produced these photos, but they failed to do so. Too,
they could have secured the statements of other workers on site who were
allegedly able to use the line for their own safety harness. But still, private
respondents failed on this score. Instead, they relied solely on the self-
serving, nay, unverified report of Outage Excellence Leader Carruth.

Verily, therefore, the Court of Appeals erred when it ruled that the
charges against petitioner for violation of company safety procedures were
substantiated by concrete and substantial evidence.

As for procedural due process, all three (3) tribunals below were
unanimous in declaring that private respondents did not comply with the
twin-notice rule. Private respondents did not send a written notice to
petitioner informing him of his alleged infractions, nor was there an
investigation where petitioner could have been given the chance to explain
his side.

All told, the absence of both substantive and procedural due process in
effecting petitioner's dismissal renders it illegal.

On the consequences of the illegality of petitioner's dismissal,

Nob/ado v. Alfonso51 held:

In fine, respondent's lack of just cause and non-compliance with

the procedural requisites in terminating petitioners' employment taints the
latter's dismissal with illegality.

Where the dismissal was without just or authorized cause and

there was no due process, Article 279 of the Labor Code, as amended,
mandates that the employee is entitled to reinstatement without loss of
seniority rights and other privileges and full backwages, inclusive of
allowances, and other benefits or their monetary equivalent computed
from the time the compensation was not paid up to the time of actual
reinstatement. However, if reinstatement is no longer possible, the
back.wages shall be computed from the time of the employee's illegal
termination up to the finality of the decision.

X XX XXX XXX

51
773Phil.271,286(2015).
Decision 14 G.R. Nos. 240123
& 240125

In addition to payment of backwages, petitioners are also entitled

to separation pay 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 their illegal dismissal up to the finality of this
judgment, as an alternative to reinstatement.

Also, in accordance with prevailing jurisprudence, legal interest

shall be imposed on the monetary awards herein granted at the rate of six
percent (6%) per annum from the finality of this Decision until fully paid.
(Emphasis supplied)

Thus, an illegally dismissed employee is ordinarily entitled to: (a)

reinstatement without loss of seniority rights and other privileges, or in lieu
thereof, separation pay 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 the employee's illegal dismissal up to the finality of
the judgment; and (b) full backwages inclusive of allowances and other
benefits or their monetary equivalent computed from the time compensation
was not paid to the time of his actual reinstatement.

As for reinstatement, petitioner has not sought the same way back in
the proceedings before the labor arbiter and up until here. On this score, we
reckon with the pronouncement of the labor arbiter:

x x x this Labor Arbitration Court finds that reinstatement is no longer

feasible because of the existence of strained relation between the parties
and the respondent's lack of intention to reinstate the complainant by their
offer, by way of amicable settlement, of separation pay during the
mandatory conference. Notably, the settlement through payment of
separation pay failed to materialize because of the parties' disagreement as
to the rate of pay to be used.52

Consequently, petitioner is entitled to backwages of one ( 1) month for

every year of service from the time of his illegal dismissal up to finality of
this Decision.

As regard the amount of petitioner's backwages, the Court agrees

with the labor arbiter that petitioner's monthly retainer/waiting fee of
Php18,000.00 and not his monthly salary in Ghana (USD900.00 per month)
should be used in the computation.

Philippine National Construction Corporation (PNCC) v. NLRC, et

53
al. instructs:

52
Rollo, p. 457.
53
349 Phil. 986, 992 (I 998).
Decision 15 GR. Nos. 240123
& 240125

An illegally dismissed employee is usually reinstated to his fonner

position without loss of seniority rights and paid backwages from the time
he was separated from work up to his actual reinstatement. The purpose of
reinstatement is to restore the employee to the state or condition from
which he has been removed or separated. Backwages aim to replenish the
income that was lost by reason of the unlawful dismissal.

In the case at bar, we hold that the NLRC gravely abused its
discretion in computing private respondent's backwages based on his
salary abroad. The records show that private respondent was not illegally
dismissed wltile working in the Middle East project of the petitioner. His
overseas assignment was a specific project and for a definite period.
Upon the completion of the project in 1984, he received all the benefits
due him under the overseas contract. He then voluntarily returned to the
Philippines to await his deployment in the local projects of the petitioner.
Clearly, he was not illegally dismissed while working in the Middle East.

When private respondent prayed for reinstatement, he meant

reinstatement to his position as a regular member of petitioner's work
pool. If private respondent were given local assignments after his stint
abroad, he would have received the local wage. This is the "loss"
which backwages aim to restore.

In making this ruling, we take into account the principle that salary
scales reflect the standard of living prevailing in the country and the
purchasing power of the domestic currency. Private respondent received a
higher salary rate for his work in the Middle East because the cost of
living and the standard of living in that country are different from those in
the Philippines. (Emphasis supplied)

Petitioner here was a regular member of private respondents' work

pool. He was assigned in Ghana only for a specific period, i.e., January 2012
to March 2012. On March 3, 201 2, he returned to the Philippines. Thus, he
had already completed his contract in Ghana when Granite Services
dismissed him from work.

As in PNCC, petitioner already received all the benefits due him

under the completed and concluded overseas contract. He returned to the
Philippines not as a worker from Ghana but as a member of the regular work
pool of Granite Services. As such, he is entitled to receive not the amount
stipulated in his Ghana contract but the monthly retainer/waiting fee of
P18,000.00. Consequently, the same should be the base amount for the
computation of his backwages.

But petitioner argues that his salary in Ghana should be the basis for
the computation of his backwages because he had not actually completed yet
Decision 16 G.R. Nos. 240123
& 240125

his overseas contract. He claims that private respondents prematurely pulled

him out from Ghana in the guise of another overseas deployment.

Aside from this bare allegation, however, no evidence was adduced to

prove that he was actually pulled out from Ghana in the guise of another
overseas deployment. In fact, Labor Arbiter Dolosa and the NLRC found
that petitioner had already finished his contract in Ghana. This factual
finding is binding upon us since even the Court of Appeals did not deviate
therefrom.

Verily, in accordance with the ruling in PNCC, petitioner's monthly

retainer or waiting fee in the Philippines should be the basis for the
computation of his backwages.

On the award of damages, Leus v. St. Scholastica 's College

Westgrove 54 bears the ground rules:

x x x A dismissed employee is entitled to moral damages when

the dismissal is attended by bad faith or fraud or constitutes an act
oppressive to labor, or is done in a manner contrary to good morals,
good customs or public policy. Exemplary damages may be awarded
if the dismissal is effected in a wanton, oppressive or malevolent
manner.

Bad faith, under the law, does not simply connote bad judgment or
negligence. It imports a dishonest purpose or some moral obliquity and
conscious doing of a wrong, or a breach of a known duty through some
motive or interest or ill will that partakes of the nature of fraud.

It must be noted that the burden of proving bad faith rests

on the one alleging it since basic is the principle that good faith is
presumed and he who alleges bad faith has the duty to prove the same.
Allegations of bad faith and fraud must be proved by clear and convincing
evidence.

The records of this case are bereft of any clear and convincing
evidence showing that the respondents acted in bad faith or in a wanton or
fraudulent manner in dismissing the petitioner. That the petitioner was
illegally dismissed is insufficient to prove bad faith. A dismissal may be
contrary to law but by itself alone, it does not establish bad faith to entitle
the dismissed employee to moral damages. The award of moral and
exemplary damages cannot be justified solely upon the premise that the
employer dismissed his employee without cause.

However, the petitioner is entitled to attorney's fees in the amount

of 10% of the total monetary award pursuant to Article 111 of the Labor
Code. It is settled that where an employee was forced to litigate and, thus,
incur expenses to protect his rights and interest, the award of attorney's
fees is legally and morally justifiable. (Emphasis supplied)

54
752 Phil. 186, 218-220 (2015).
Decision 17 G.R. Nos. 240123
& 240125

As in Leus, petitioner failed to show the requisite elements for the

award of damages here. He failed to substantiate that private respondents
acted in bad faith, or that his dismissal constitutes an act oppressive to labor,
or that his dismissal was done in a manner contrary to good morals, good
customs or public policy, or that his dismissal was done in wanton,
oppressive, or malevolent manner.

Following both statutory and case law, pet1t10ner should be paid

attorney's fees equivalent to ten percent (10%) of the total monetary award.
This is because he was forced to litigate and incur expenses to protect his
rights and interest.

Petitioner is entitled to legal interest at the rate of six percent (6%) on

all the monetary awards to him per annum from the finality of this Decision
until fully paid. 55

Notably, however, the NLRC's judgment, which fixed a higher

amount of backwages had already been executed. The only question is
whether there was a full or partial satisfaction of the correct amount. On this
score, there is a need for the labor arbiter to recompute the executed amount
vis-a-vis the judgment amount. Whatever amount may still be deficient or
paid in excess should be satisfied by or refunded to private respondents, as
the case may be.

One final point. There is no proof that private respondents Joseph

Medina, Daniel Sargeant, and April Anne Junio acted with malice or bad
faith. They cannot be held solidarily liable with Granite Services. 56 This is
especially true for private respondent April Anne Junio who was not even
impleaded as party respondent before the labor tribunals.

ACCORDINGLY, the petition is GRANTED. The Decision dated

August 18, 2017 and Resolution dated May 29, 2018 of the Court of
Appeals in CA-G.R. SP No. 130731 and CA-G.R. SP No. 134905 are
REVERSED and SET ASIDE. Private respondent Granite Services
International, Inc. is ordered to PAY petitioner Domingo P. Gimalay the
following:

1) Full backwages computed at Phpl8,000.00 per month, inclusive

of allowances and other benefits, including but not limited to service
incentive leave pay and 13 th month pay, from the time of his dismissal on
March 7, 2012 up to the finality of this Decision;

55 Nob/ado, et al. v. Alfonso, supra note 51, at 287.

56 See Dimson v. Chua, 801 Phil. 778, 792 (2016).
Decision 18 G.R. Nos. 240123
& 240125

2) Separation pay equivalent to one (1) month pay of Phpl8,000.00

for every year of service, with a fraction of at least six (6) months considered
as one (1) whole year, computed from the date he got hired as a regular
member of the company's work pool on January 1, 2007 up to the finality of
this Decision; and

3) Attorney's fees equivalent to ten percent (10%) of the total

monetary award.

These monetary awards shall earn legal interest at the rate of

six percent ( 6%) per annum from the finality of this Decision until fully
paid.

The case is REMANDED to Labor Arbiter Alberto B. Dolosa for the

determination of whether the total monetary award has already been fully or
partially satisfied. Any unpaid amount should be further satisfied or any
excess payment returned to Granite Services International, Inc ..

SO ORDERED.

Associate Justice

WE CONCUR:

Chairperson .First Division

,-~~
E C. REYES, JR.
Associate Justice
 Decision 19 G.R. Nos. 240123
& 240125

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, I certify_ that the
conclusions in the above Decision had been reached in consultatioil~efore the
case was assigned to the writer of the opinion of the Court's Division.

fl