Proving Illegal Dismissal: Employee Must First Establish Fact of Dismissal

In illegal dismissal cases, the burden of proof shifts in stages. The employee must first establish by substantial evidence the fact of dismissal from service before the employer bears the burden of proving that the dismissal was legal. This principle was reaffirmed by the Supreme Court in Tapia v. GA2 Pharmaceutical, Inc. (G.R. No. 235725, September 28, 2022), which also clarified when a verbal command from a superior may constitute an overt act of dismissal.

The case is instructive for both employees and employers. It shows how courts evaluate evidence of dismissal, the weight given to co-employee affidavits, and the consequences of belatedly presenting evidence.

The Facts of the Case

Joel Tapia was employed as a pharmacist at GA2 Pharmaceutical, Inc. He claimed his employment began in July 2013, as shown by his payroll slips and the company's FDA license bearing his name as resident pharmacist of its Mandaluyong branch. He later became a roving pharmacist with supervisory functions, product delivery, and sales collection duties.

On June 11, 2015, Tapia asked to be excused from his delivery task because he was not feeling well and the company car was covered by the number coding scheme. The General Manager scolded him and ordered the Personnel Officer to draft his resignation letter. When Tapia refused to sign, the General Manager allegedly ordered him to go home and never come back.

Tapia immediately filed a complaint for illegal dismissal. GA2, on the other hand, claimed Tapia was a probationary employee who voluntarily left after an altercation, and that it sent him a notice to explain his absences.

The Conflicting Rulings Below

The Labor Arbiter dismissed the complaint, ruling that Tapia failed to prove he was arbitrarily dismissed. The NLRC reversed, declaring Tapia illegally dismissed and awarding separation pay, backwages, and attorney's fees. The Court of Appeals then partially granted GA2's petition, ordering reinstatement but without backwages, ruling that Tapia's allegations were self-serving and unsubstantiated.

The Supreme Court reversed the Court of Appeals and reinstated the NLRC decision.

The Burden of Proof in Illegal Dismissal Cases

The Supreme Court reiterated the rule: in illegal dismissal cases, the employee must first establish by substantial evidence the fact of dismissal before the employer bears the burden of proving the dismissal was legal. The evidence must be clear, positive, and convincing.

Here, Tapia sufficiently established the circumstances of his dismissal. He recalled in detail the incident on June 11, 2015. Citing Reyes v. Global Beer Below Zero, Inc. (819 Phil. 483 [2017]), the Court held that when a verbal command not to report for work is uttered by a person with the capacity and authority to terminate an employee, it can be construed as an overt act of dismissal.

The General Manager was Tapia's immediate superior. His command that Tapia go home and never come back was authoritative. Tapia was not amiss in believing his employment had been terminated. His immediate filing of the illegal dismissal case confirmed the credibility of his version of events.

The Weight of Co-Employee Affidavits

The Court found it understandable that no co-employee came forward to support Tapia's complaint. Co-employees are naturally beholden to their employer because their employment depends on the company. The affidavits executed by Tapia's co-employees against him were considered self-serving, especially since they did not categorically refute the fact of his summary dismissal.

On the issue of abandonment, the Court agreed with the Court of Appeals that the filing of a complaint negates any suggestion of abandonment. The alleged notice to explain could not be taken as evidence of abandonment because there was no indication Tapia actually received it.

The Probationary Contract Was a Mere Afterthought

GA2 belatedly presented a probationary contract to show Tapia's employment began only in March 2015. The Court discarded this as a mere afterthought, noting that GA2 presented it only when it filed its motion for reconsideration of the NLRC ruling. Tapia's documentary evidence—payroll slips and the FDA license—sufficiently established that his employment began in July 2013.

Practical Takeaways

• Employees must first prove the fact of dismissal by clear, positive, and convincing evidence before the employer must justify the dismissal.
• A verbal command from a superior with authority to terminate can constitute an overt act of dismissal, especially when followed by the employee's immediate filing of a complaint.
• Co-employee affidavits against a dismissed employee may be viewed as self-serving, as co-employees are beholden to their employer.
• Filing a complaint for illegal dismissal negates any claim of abandonment by the employee.
• Belatedly presenting evidence in a motion for reconsideration may cause the court to view it as an afterthought.

This article is general information and not legal advice. For your specific situation, consult a lawyer or ask ASG Legal AI.