G.R. No. 235725 – JOEL A. TAPIA, PETITIONER, VS. GA2 PHARMACEUTICAL, INC., RESPONDENT.

LAZARO-JAVIER, J.

Rule Synopsis

A verbal command not to report for work is uttered by a person who has the capacity and authority to terminate an employee could be construed as an overt act of dismissal.

There is no hard and fast rule designed to establish the elements of an employer-employee relationship. Nonetheless, payroll, among other documentary evidence, has been accepted to establish its elements.

Facts

This case involves a complaint for illegal dismissal and money claims filed by Joel Tapia (Tapia) against GA2 Pharmaceutical, Inc. (GA2).

In his Complaint, Tapia alleged that GA2 employed him as a pharmacist in July 2013. He submitted copies of his pay slips for July and August 2013 and GA2’s license to operate bearing his name as the assigned pharmacist of its Mandaluyong branch. He was later tasked with product delivery and sales collection.

On June 11, 2015, he asked to be excused from his delivery task as he was not feeling well and his company car was covered by the number coding scheme. But Laney Vijay Saldanha (Saldanha ), General Manager of GA2, scolded him and ordered their
Personnel Officer Zuniega to draft his resignation letter. When he refused to sign, Saldanha allegedly ordered him to go home and never come back.

Meanwhile, GA2 claimed that Tapia was only hired in March 2015 as a pharmacist/driver on probationary status as evidenced by the probationary contract. Further, he refused to deliver some pharmaceutical items to the GA2’s Mandaluyong branch, and then left the office after an altercation with Saldanha. GA2 also submitted Affidavits of Tapia’s co-employees stating that Tapia voluntarily left his work on the questioned date.

The Labor Arbiter dismissed the complaint for lack of merit, which the National Labor Relations Commission (NLRC) reversed. The latter declared Tapia to have been illegally dismissed.

Partially granting GA2’s petition, the Court of Appeals (CA) ordered Tapia’s reinstatement to his former position without backwages. It also denied Tapia’s Motion for Reconsideration.

Hence, the instant petition for review before the Supreme Court.

Issues

1. Was Tapia illegally dismissed? If so, what awards were he entitled to?
2. Was Tapia a regular employee of GA2?

Ruling and Discussion

1. Yes. Tapia was illegally dismissed. He is entitled to he is entitled to backwages, separation pay (in lieu of reinstatement), and attorney’s fees.
   
   In illegal dismissal cases, the employee must first establish by substantial evidence the fact of his or her dismissal from service before the employer bears the burden of proving that the dismissal was legal. The evidence to prove the fact of dismissal must be clear, positive, and convincing.
   
   Here, Tapia sufficiently established the circumstances leading to his dismissal. He recalled that on June 11, 2015, he was not feeling well and he could not deliver the merchandise of GA2 because the vehicle assigned to him was covered by the number coding scheme. He was then ordered to sign a resignation letter, but he refused. This caused Saldanha to shout and “order[ed] him to go home and never come back.”
   
   Verily, a verbal command not to report for work is uttered by a person who has the capacity and authority to terminate an employee, the same could be construed as an overt act of dismissal.
   
   Here, Saldanha is Tapia’s immediate superior and GA2’s general manager. Thus, Tapia believed that the former had terminated his employment upon his order. Consequently, Tapia immediately filed the illegal dismissal case. That no one among his co-employees came forward to support his complaint, or that some of them executed Affidavits contradicting his claims, are understandable, as their employment depended on GA2.
2. No. Tapia is a regular employee of GA2.
   
   There is no hard and fast rule designed to establish the elements of an employer-employee relationship. Nonetheless, payroll, among other documentary evidence, has been accepted to establish its elements.
   
   Here, Tapia’s documentary evidence, i.e., July and August 2013 payroll slips and the FDA license showing he was the resident pharmacist at GA2’s in August 2013, corroborated by his testimonial evidence, sufficiently establish his claim that his employment began in July 2013. The probationary employment contract submitted by GA2, though in writing, does not prevail over Tapia’s evidence. The Court agrees with the NLRC and the CA that the said contract was a mere afterthought. The fact that Bolsico submitted an affidavit that Tapia was her part-time pharmacist does not contradict Tapia’s claim that his employment. Similarly, this piece of evidence was submitted too late only when GA2 filed its Motion for Reconsideration on the NLRC’s ruling.
   

dispositive

Petition granted. Decision and Resolution of the CA reversed and set aside. Case remanded to the labor arbiter.