He explains his failure to submit more concrete evidence as being due

to the decision rendered by the labor arbiter without resolving his motion for
the production and inspection of documents in the control of Cityland.
Petitioner conveniently forgets that on January 27, 1994, he agreed to
submit the case for decision based on the records available to the labor
arbiter. This amounted to an abandonment of above-said motion, which was
then pending resolution.
-=
There is no clear proof also that the Complainant received the Special
Order, dated 16 July 2012, restoring him to duty. Aside from the annotation
in the document that he refused to receive, there were no other evidences
presented to substantiate the same.

And, even assuming that he was

required to report for work on 16 July 2012, more than seven (7) months
already passed since 1 December 2011, when he was placed under floating
status. Moreover, if indeed there was an offer for him to report for work on
16 July 2012, it was merely an afterthought designed by the Respondents to
avoid the liability of illegally dismissing the Complainant. By that time, the
Respondents already knew the inevitability of this case, since as early as 5
June 2012, this case was referred to the SENA.
But even admitting for the sake argument that the Complainant was
merely placed under temporary off detail in January 2012 and that the
Agency gave the Complainant an assignment on 16 July 2012, although the
Complainant refused, still the fact remained that he was under such status
for more than six months. The law is quite clear that when such a floating
status lasts for more than six (6) months, the employee is considered to

have been constructively dismissed.1

-=
We cannot fully agree with the Respondents on this matter simply
because they are not allowed to change their theory, defense, or proposition
on appeal. Otherwise, if we allow them to do so, it would be against the rule
on fair play.
-=
Verily it is a basic rule in evidence which states that the burden of
proof is on the part of the party who makes the allegation eiincumbit
probation, qui dict, non qui negat. If he claims a right granted by law he
must prove his claim by competent evidence, relying on the strength of his
own evidence and not upon the weakness of that of his opponent.
(RufinaPatis Factory and Jesus Lucas, Sr. vs. Juan Alusitain 434 SCRA 418)
as he who asserts and not he who denies must prove (2 Jones on evidence
2nd edition Section 491).
-=
It should be noted that mere allegation is not evidence and it is a basic
rule that each party must prove his affirmative allegation. (Espina vs. Court
of Appeals G.R. No. 164582, March 28, 2007)
-=
This then makes the Complainants foregoing arguments as a mere
allegation. However bare allegations unsubstantiated by evidence are not
equivalent to proof, under the rules of Court. (Manzano vs. Perez, 362 SCRA
430) as an allegation in a pleading is not evidence but that it has to be
proven by evidence (Reyes vs. CA 383 SCRA 484).
-=
1 Bebina G. Salvaloza vs. NLRC, et.al., G.R. No. 182086, 24 November 2010, citing
Megaforce Security and Allied Services, Inc. v. Lactao, supra, at 117; Pido v. National
Labor Relations Commission, G.R. No. 169812, February 23, 2007, 516 SCRA 609,
615-616; Phil. Industrial Security Agency Corp. v. Dapiton, 377 Phil. 951, 962 (1999);
Sentinel Security Agency, Inc. v. NLRC, 356 Phil. 434, 443, 446 (1998).

This being the case we find the Respondents version of events more
credible for in the weighing of evidence, documentary evidence prevails over
testimonial evidence (Go vs. CA 222 SCRA 696). The record clearly contains
such evidence contrary to the loquacious and protracted arguments of the
Complainant that such does not exist.
-=
It is recognized that evidence to be worthy of credit must not only
proceed from a credible source but must in addition be credible in itself and
by this meant that it shall be natural reasonable and probable as to make it
easy to believe ( Tuazon vs. Stevedoring Company Inc. et.al. G.R. NO.
113541 Jan. 28, 1961 ,Bonifacio et.al. vs. BLT 34 SCRA 1970 Pp vs.
Laurente GR No. 129594, March 7, 2001; Pp. vs. San Juan GR No. 130969,
February 29, 2000).
-=
As between the unsubstantiated allegations of the Complainant and
those of the Respondents that were corroborated by evidence, we concur
with the decision of the Labor Arbiter to dismiss the present complaint hence
whether the Complainants claim constructive or actual dismissal, all
arguments on this matter are irrelevant and inconsequential as the evidence
present in the record shows the Respondents are not liable for an act of
Illegal Dismissal.
-=
Regarding the award for monetary benefits, this Commission agrees
with the respondent that there is no factual basis for the grant of these
benefits. In his position paper complainant prayed for unpaid salary and
pertinent benefits including gratuity pay, overtime pay and holiday pay.
However, he failed to indicate with particularity the basis for entitlement
benefits; neither did he adduce evidence to support these claims, The
awarded benefits are not the usual mandatory labor standards required of

the employer to compensate. Thus, complainant is tasked to prove by

substantial evidence the basis for such grant. Likewise, overtime pay cannot
be granted without specification of time, day and date he rendered service.
-=
However we Affirm the Labor Arbiters decision to award both
complainants their respective 13th month pay for it is a well settled rule that
in cases involving monetary claims of the employees, the burden of proving
payment rests on the employer (National Semiconductor (HK) Distribution
Ltd. vs. NLRC GR # 123520, May 11, 2000) for pertinent personnel files,
payrolls, remittances and other similar document which will show overtime,
differentials, service incentive leaves and other claims of workers have been
paid-are not in the possession of the workers but in the custody and
absolute control of the employer.
-=
The personnel files, records and other similar documents are in the
custody and absolute control of the Respondents but still they failed to
present the same and to prove otherwise.
-=
the Complainant failed to present a single iota of evidence in support
of her allegation that she rendered work on holidays. Unfortunately bare
allegations unsubstantiated by evidence are not equivalent to proof.2
-=
WHEREFORE, the assailed Decision dated 06 March 2015 is hereby
MODIFIED in so far as the award of 13th month pay of the Complainant is
REDUCED in the amount of Php 16, 880.00 which is equivalent to the 1/12
of his basic salary for the year 2014. The award of Holiday pay is DELETED
2Manzano vs. Perez, 362 SCRA 430.

for without basis. Since the Complainant was illegally dismissed from
service, the Appeal of the Respondents is hereby DISMISSED. Likewise, the
Appeal of the Complainant is DISMISSED for lack of merit.
The other monetary grants found in the Labor Arbiters Decision are
hereby AFFIRMED.
SO ORDERED.
-=
The evidence to prove ones dismissal from employment must be clear,
positive and convincing.3
-=
Evidently, since there was no re-organization, there is no demotion of
rank or diminution of salary or benefits to speak of.
-=
Even assuming ad arguendo that the re-structuring will push through,
there is no evidence showing that there will be demotion of functions or
diminution of privileges.
-=
There has to be a clear evidence of downgrading of functions or
responsibilities.
-=

They are one in ruling that the Report cannot be given any probative value
as it is uncorroborated by other evidence and that it is merely hearsay, having
come from a source, the Chief Engineer, who did not have any personal
knowledge of the events reported therein.
-=
3 Exodus, supra

The Labor Arbiter ruled that the charges against respondent are bare
allegations, unsupported by corroborating evidence. The Labor Arbiter stated that
if respondent indeed committed the alleged infractions, then these should have,
at the very least, been entered into the seamans book, or that a copy of the
vessels logbook presented to prove the same.
-=
More importantly, the finding that respondent was illegally dismissed is
supported, not only by the evidence on record, but by jurisprudence as well.
-=
The only evidence relied upon by petitioner in justifying respondents dismissal is
the Chief Engineers Report dated September 10, 1997. The question that arises,
therefore, is whether the Report constitutes substantial evidence proving that
respondents dismissal was for cause.
Substantial evidence is defined as that amount of relevant evidence which a
reasonable mind might accept as adequate to justify a conclusion.19 As all three
tribunals found, the Report cannot be given any weight or credibility because it is
uncorroborated, based purely on hearsay, and obviously merely an afterthought.
While rules of evidence are not strictly observed in proceedings before
administrative bodies,20 petitioner should have offered additional proof to
corroborate the statements described therein. Thus, in Ranises v. National Labor
Relations Commission,21 involving a seafarer who was repatriated to the
Philippines for allegedly committing illegal acts amounting to a breach of trust, as
based on a telex dispatch by the Master of the M/V Southern Laurel, the Court
rejected the weight given by the NLRC on the telex, to wit:
Unfortunately, the veracity of the allegations contained in the aforecited
telex was never proven by respondent employer. Neither was it shown that
respondent employer exerted any effort to even verify the truthfulness of
Capt. Sonodas report and establish petitioners culpability for his alleged
illegal acts. Worse, no other evidence was submitted to corroborate the
charges against petitioner.
-=

In support of its claim that the respondents were validly dismissed, the

petitioners presented its lone evidence, The Court, however, ruled that the
telefax transmission is not sufficient evidence,
-=
Although substantial evidence is not a function of quantity but rather of
quality, the peculiar environmental circumstances of the instant case demand
that something more should have been proffered.
-=
All told, petitioners failed to make up for the weakness of the evidence
upon which they confidently anchored the merits of their case.
-=
It is recognized that in case of the monetary claims of employees, in this jurisdiction, the
burden of proof that the same had been duly paid rests on the shoulders of the employers. This
is because the law mandates that employers keep the employment records of the employees,
such as payroll sheets, vouchers and daily time records which stand as the best evidence for
payment of said claims.
-=

Foregoing in mind we examined the Respondents payrolls and other pertinent

record that purports to have paid the Complainants monetary demands and find the
very same pieces of evidence reveals he is indeed entitled to his claims.
-=
The Complainants claim for the payment of work on his rest day shows
Respondents failed to show proof of payment therefore.The entries in Complainants
undisputed daily time record/s for said month of December, 2009 and December, 2010,
readily reveal that he worked on his rest days or during Tuesdays. More particularly, he
worked on 8, 15,22 and 29 December 2009 and also, on 7 and 14 December 2010.
Thus Respondents should be held liable for the payment thereof (Annexes A , A-1
Complainants Position paper and Annex 4, Respondents Reply)
-=

In so far as holiday pay is concerned, Complainant was paid less than the minimum wage of
P404/day starting 1 July 2010 and, consequently, he cannot be legally presumed to have been
paid his holiday pay. In consequence, Respondents are found liable to pay Complainant his
holiday pay for the last 3 years of his employment.

-=
In sum, Respondents failed to prove payment of the above claims and, instead, their own
documents show their liability to satisfy the labor standard benefits due to Complainant.

-=
Due process means an opportunity to explain ones side (Canete vs. NLRC 315 SCRA
660) In administrative proceedings, due process means an opportunity to explain ones side
(Mariveles shipyard Corp. vs. CA, GR No. 144134, November 11, 2003) As the suspension was
established and no notice or just cause given, his suspension is declared illegal hence he is
entitled to the payment of his wages for the period of time he was not allowed to report for work.

-=
An examination of the aforesaid pay slip/contribution receipt show the same is not
signed by either Complainant Michael Desepeda or Fidel Dizon. This then makes the evidence
self serving and unworthy of belief. Since the law mandates employers keep the employment
records of the employees, such as payroll sheets, vouchers and daily time records which stand
as the best evidence for payment of said claims (Section 6,7 and 8 Omnibus Rules
Implementing the Labor Code as amended), Respondents should have presented a copy of the
Complainants loan applications to substantiate their claim that the Complainants had obtained
loans and that there remains an unpaid balance.

-=
The attempt of the Respondents to submit document in evidence
without presenting any valid reason for the belated submission (Annexes B1 to B-4) at this stage of the proceedings cannot be justified. Apt on this
issue is the pronouncement by the Supreme Court in the case of Villa vs.
NLRC, et al., (G.R. No. 131552, 303 SCRA 481-482), thus: Private respondent
does not have any right to present evidence at any stage of the proceedings
as it may wish. A close examination of the afore-quoted provision will show
that its purpose is to avoid denial of due process. It allows the relaxation of
our rules of procedure if their strict enforcement will bring about failure of
justice. It does not, however sanction the reasonless violation of our
procedural rules which was promulgated to achieve order in the disposition
of justice. Private respondent should demonstrate due diligence in the

exercise of its rights before it can claim due process. Due process cannot be
accorded to a negligent litigant if it will result to injustice to the other litigant
who has been diligent in observing the rules of litigation.
-=

It is palpable that the Complainants explanation is in the nature of a

denial. However, denials unsubstantiated by clear and convincing
evidence are negative and self-serving evidence which deserve no
weight in law and cannot be given greater evidentiary weight from the
declaration of witness who testify an affirmative matters (People vs.
Martin, 193 SCRA 57) as denials unsubstantiated by clear and
convincing evidence are negative and self serving which merit no
weight in law and cannot be given grater evidentiary value over the
testimony of witnesses who testified on affirmative matters (People vs.
Sernadilla, 350 SCRA 243, 2000)
-=

There is evidence on record which can be considered as rationally

adequate (Nelson Zagala and Feliciano M. Angeles vs. Mikado
Philippines Corporation, G.R. No. 160863, September 27, 2006) that
the Complainants were dismissed for just cause/s thus We fail to find
any error was committed by the Labor Arbiter when he resolved to
Dismiss the Complainants Complaint for illegal dismissal when he
concluded:
While it is true that compassion and human consideration
should guide the disposition of cases invoking termination
of employment since it affects ones source or means of
livelihood, it should not be overlooked that the benefits
accorded to labor do not include compelling an employer to
retain the services of an employee who has bee shown to
be a gross liability to the employer, The law in protecting
the rights of the employees authorizes neither oppression
nor self destruction of the employer. It should be made
clear that when the law tilts the scale of justice in favor of
labor, it is but recognition of the inherent economic
inequity between labor and management, the intent is to
balance the scale of justice; to put the two parties on
relatively equal positions. There may be cases where the

circumstances warrant favoring labor over the interest of

management but never should the scale be so tilted if the
result is an injustice to the employer.
-=
We are not persuaded to accept the Complainants' averments
appearing in their Affidavit to support their demands for the payment
of salary differentials as well as their other monetary benefits as
provided for in Labor Standard laws as an affidavit is only a prima facie
evidence and should be received with caution because of its weak
probative value force (Carlos A. Gothong Lines Inc. v. NLRC, G.R. No.
96685, February 15, 1999) for affidavits standing alone cannot be
considered as substantial evidence (Madlos v. NLRC, 259 SCRA 248)
more so in the face of the evidence that established that the
Complainants are piece-rate workers and are not compensated based
upon the prevailing minimum wage laws.
We find that the Respondents were able to present substantial
evidence defined as the amount of relevant evidence which a
reasonable mind might accept as adequate to arrive at a conclusion
(Austria v. NLRC, 310 SCRA 293) that the Complainants were paid
their 13th month pay (Annexes 10 and 11, Respondents' Reply)
hence the Appeal regarding non-payment is dismissed.
-=
The Deputy Ombudsman found the respondents guilty of grave misconduct
based on the affidavits submitted by the complainants and the NBI/Progress

report. In giving credence to the affidavits, the Deputy Ombudsman ruled that the
complainants have amply established their accusations by substantial evidence.
-=
Accordingly, we cannot give full credence to these affidavits, which were
executed under suspicious circumstances, and which contain allegations
unsupported by evidence. At best, these affidavits are self-serving. They possess
no probative value.
-=
However, we cannot give credence to said affidavits. In respondents August 13,
2001 Reply filed with the Labor Arbiter, respondent indicated that he reported for
work at 6:00 p.m. Thus, we agree with the factual finding of the Labor Arbiter in
his October 19, 2001 Decision that "[I]f complainant reported for work at 6:00
p.m. of November 26, 1999, he definitely was not in PLDT Village, Bian, Laguna
shortly after 6:00 p.m. or at around 6:30 p.m. of November 26, 1999,"36 as the
separate affidavits of Rodolfo S. Untalan and Valente Jose declared.37 Time and
again, this Court has held that "[p]ositive identification of the [respondent] where
categorical and consistent, without any showing of ill motive on the part of the
eyewitness x x x, should prevail over the alibi and denial of [the respondent and
his witnesses] whose testimonies are [conflicting] and not substantiated."38
"[T]he quantum of proof required in determining the legality of an employees
dismissal is only substantial evidence."39 In a similar case involving PLDT and
another installer/repairman, this Court held that "[T]the standard of substantial
evidence is met where the employer, as in this case, has reasonable ground to
believe that the employee is responsible for the misconduct and his participation
in such misconduct makes him unworthy of the trust and confidence demanded
by his position." 40
1avvphi1

-=

We are inclined to give Arigorings testimony the weight and credence the Labor
Arbiter gave it. She is a disinterested witness who had no stake whatsoever in
the outcome of this case. Arigoring and Mrs. De Guzman had no relation to
private respondent. We find no reason why they would risk criminal sanction for
perjury and waste time and energy to lie in behalf of private respondent, both
were only testifying to the truth.
-=
Having been paid by his clients in accordance with the agreement, his claim
against the respondents, therefore, has no leg to stand on.

-=
The LA also denied their money claims because their allegations were belied by
documentary evidence showing that these claims have been properly paid to
petitioners.
-=
On the issue of night shift differential pay, We modify the computations made by
the Labor Arbiter (p. 58 of the Records).
A meticulous examination of the record shows that the Complainant failed to
establish with particularity the days she actually rendered work during graveyard
shifts.
-=
However, Complainants claim for night shift differential cannot be granted for lack
of basis. We find nothing in the records which could substantially support his
contention that he had rendered service during grave yard shift.