PROTECTIVE MAXIMUM SECURITY AGENCY, INC. v. CELSO E.

FUENTES
February 11, 2015
By: Karen Daryl L. Brito

TOPIC: Termination by employer and Aspect of Due Process on Labor Code

FACTS:
Petitioner Protective Maximum Security Agency, Inc. (PMSAI) provides security services for
commercial, industrial and agricultural firms, and personal residences. Celso E. Fuentes was
hired as a security guard by PMSAI. At the time of Fuentes' employment, Petitioner assigned
him to Picop Resources, Inc. He was posted to a security checkpoint designated as Post 33 in
Upper New Visayas, Agusan del Sur.

A group of armed persons ransacked Post 33 and took weapons, all with live ammunition and
magazines. Agency-issued uniforms and personal items were also taken. These armed persons
inflicted violence upon Fuentes and the other security guards present at Post 33, namely:
Dalacan, Lindo, Jr., Cempron, and Maravilles. Dalacan was employed by Protective, while the
others were employed by Meshim Security Agency.

On the same day of the incident, Fuentes and his fellow security guards reported the raid to the
Philippine National Police (PNP). When asked by the police, Fuentes reported that he and the
other security guards assigned to Post 33 were accosted at gunpoint by the New People's Army
(NPA). After its initial investigation, the PNP found reason to believe that Fuentes conspired and
acted in consort with the NPA. This was based on the affidavits executed by Lindo, Jr. and
Cempron, who were both present raid. In their affidavits, Lindo, Jr. and Cempron stated that
Fuentes should be prosecuted for criminal acts.

Later on, the PNP filed the Complaint for robbery committed by a band against Fuentes, a
certain Mario Cabatlao, and others. The Complaint stated that Fuentes was a "cohort of the
NPA in the raid." Fuentes was detained and during his detention, he alleged that he was mauled
and tied up by the security officers of Protective. As evidence, Fuentes had pictures taken of his
injuries while in custody and acquired a medical certificate detailing his injuries.

Prosecutor issued a resolution dismissing the complaint against Fuentes because there was no
probable cause on his case. Fuentes filed a complaint for illegal dismissal, nonpayment of
salaries, overtime pay, premium pay for holiday and rest day, 13th month pay, service incentive
leave and damages against petitioner before the NLRC. He claimed that right after the criminal
complaint for robbery, he was dismissed, he demanded to return to work but he was refused
entry by [a certain] on the ground that he was a member of the NPA and that his position had
already been replaced by another security guard.

Petitioner claims that as was usual and routine, Fuentes should have reported to his Team
Leader or Officer-in-Charge. Since the incident of July 20, 2000, private respondent has not yet
reported to his Team Leader or to any of the officers of the Petitioner.

Labor Arbiter: The LA rendered his Decision in favor of PMSAI. Fuentes failed to state the exact
time and date when he allegedly report to work after dismiss of case on August 15, 2001 and
PMSAI aver that Fuentes has not reported to work up to July 17, 2002. The NLRC reversed the
Decision of Labor Arbiter and found that Fuentes was illegally dismissed. It also ordered PMSAI
to pay Fuentes full backwages and reinstate him upon receipt of the decision; and ordered
Picop to pay him in solidum his unpaid salary. PMSAI appealed to CA. The CA dismissed the
petitioner. It held that Protective failed to discharge its burden to prove a just cause for
dismissal. Petitioner bases its contention that Fuentes abandoned his job entirely upon its claim
that the latter vanished from sight after the July 20, 2000 incident and until he filed the present
action. The Court of Appeals found that the NLRC committed no grave abuse of discretion
amounting to lack or excess of jurisdiction.

ISSUES:
1. Whether or not respondent was justifiably dismissed due to abandonment.
2. Whether or not respondent's right to procedural due process was violated.

HELD:
1. No. The absence of respondent does not constitute abandonment. Abandonment as a just
cause for dismissal is based on Article 282 (b) of the Labor Code:

Art. 282. Termination by employer. An employer may terminate an employment for any of the
following causes: xxx (b) Gross and habitual neglect by the employee of his duties.

Abandonment constitutes a just cause for dismissal because "the law in protecting the rights of
the laborer, authorizes neither oppression nor self-destruction of the employer." The employer
cannot be compelled to maintain an employee who is remiss in fulfilling his duties to the
employer, particularly the fundamental task of reporting to work.

The burden to prove whether the employee abandoned his or her work rests on the employer.
Thus, it is incumbent upon petitioner to prove the two (2) elements of abandonment. First,
petitioner must provide evidence that respondent failed to report to work for an unjustifiable
reason. Second, petitioner must prove respondent's overt acts showing a clear intention to
sever his ties with petitioner as his employer.

In the case at bar, there is no abandonment. For the first element, the NLRC and CA found that
respondent's failure to return to work was justified because of his detention and its adverse
effects. The CA found that petitioner did not refute the allegation that respondent, while in the
custody of the police, suffered physical violence in the hands of its employees. Thus, the Court
of Appeals gave credence to the report submitted by Inspector Escartin, which stated that
respondent was "so traumatized that he actually asked to remain in the custody of the police
because he feared for his life." The Court of Appeals further found that respondent experienced
intense fear, "manifested by the fact that he left the custody of the police only when his mother
accompanied him."

Thus, the intervening period when respondent failed to report for work, from respondent's prison
release to the time he actually reported for work, was justified. Since there was a justifiable
reason for respondent's absence, the first element of abandonment was not established.

For the second element, it was not proven. Respondent's act of reporting for work after being
cleared of the charges against him showed that he had no intention to sever ties with his
employer. He attempted to return to work after the dismissal of the Complaint so that petitioner
would not have any justifiable reason to deny his request to resume his employment. Thus,
respondent's actions showed that he intended to resume working for petitioner.

Also, Petitioner failed to discharge its burden to prove a just cause for dismissal.
2. Yes. Respondent's right to procedural due process was not observed. The employer must
always observe the employee's right to due process. The court cited the case of Agabon which
discussed the two aspects of due process which is the procedural (manner of dismissal) and
substantive (valid and authorized causes of employment termination under the Labor Code).

In the case at bar, petitioner violated respondent's right to procedural due process. The two-
notice requirement was not followed. Petitioner sought to excuse itself by claiming that there
was no address where the proper notice could have been served. However, petitioner admitted
before the Court of Appeals that "respondent's last known address was given to the
investigating court by Police Inspector Escartin."

There was no attempt from petitioner to serve the proper notice on respondent at the address
contained in its employment records. Respondent was replaced without being given an
opportunity to explain his absence.

Petitioner has violated respondent's right to security of tenure, as well as his right to procedural
due process. For these violations, petitioner must be held accountable.