PETITIONER Oliver V. Vergara was employed as a security guard by respondent CDM Security Agency Inc. (CDM).
He was assigned at a branch of BPI Family Savings Bank in San Agustin, Pampanga.
On March 7, 2013, at around 9 a.m. while Vergara was on duty, he had an argument with another CDM employee named Hipolito Fernandez. In the course of the argument, Vergara allegedly pointed a shotgun at Fernandez.
On March 8, 2013, CDM’s operations officer served upon Vergara a memorandum of disciplinary action relieving him of his post at the bank and advising him to report to CDM’s office.
On March 13, 2013, Vergara filed a complaint for among others, illegal dismissal, against CDM and its corporate officer Vilma Pablo.
Does this complaint prosper?
Ruling: No.
As to Vergara’s claim of illegal dismissal, the Court affirms the findings of the CA that he was not dismissed from employment.
“In illegal termination cases, jurisprudence had underscored that the fact of dismissal must be established by positive and overt acts of an employer indicating the intention to dismiss.”
In this case, Vergara was not at all able to substantiate his allegation of verbal dismissal. At most, he was subjected to a disciplinary action inappropriately, as it was imposed without a prior investigation.
Based on the memorandum dated March 8, 2013, Vergara was relieved of his post at BPI San Agustin branch and was asked to report to CDM’s office for violation of the code of ethics (proper use of firearms), and grave threat to Fernandez (pointing 12 gauge shotgun).
This memorandum was served to him the very next day after the incident. Additionally, the written account of Lito Panoy, a fellow security guard who witnessed the altercation, was dated March 13, 2013—a week after Vergara was discharged from his place of assignment. Thus, it is clear that no investigation was conducted before the findings of violation came about.
However, in view of the quitclaim and release executed by Vergara, the respondents cannot be held liable for relieving him from his post. Besides, even in the absence of the quitclaim, there is no evidence to suggest that he was being suspended or dismissed from work.
Per the memorandum, recalling Vergara from his duty is a penalty in itself; to presume that removing him from his place of assignment is tantamount to illegal suspension or termination would be indulging in speculation, as he may also be subjected to a reassignment only. (Oliver V. Vergara vs. CDM Security Agency, Inc. and Vilma Pablo, G.R. No. 225862).