Petitioners Efren Santos Jr. and Jeramil Salmasan were employed as cooks by respondent King Chef, a Chinese restaurant owned by respondent Marites Ang. On Dec. 25, 2011, Santos rendered only a half day work without prior authorization. Salmasan did not report at all. Petitioners alleged that in view thereof they were dismissed from employment. They tried to report for work but their chief cook told them they were already terminated. Thus, they filed their complaint for illegal dismissal with money claims against respondents.

Respondents upon the other hand, denied that petitioners were dismissed from work. They argued that petitioners violated the Dec. 22, 2011 memorandum informing its employees that no absences would be allowed on Dec. 25, 26, 31, and Jan. 1 unless justified. After petitioners failed to report on Dec. 25, 2011, and returned the following day merely to get their share in the accrued tips, they allegedly went on absence without leave (AWOL) for the rest of the Christmas season.

The Court of Appeals (CA) affirmed the decision of the National Labor Relations Commission (NLRC) finding that there was no dismissal.

Did the CA err?

Ruling: No.

In cases of illegal dismissal, the employer bears the burden to prove that the termination was for a valid or authorized cause. But before the employer must bear the burden of proving that the dismissal was legal, it is well-settled that the employees must first establish by substantial evidence that indeed they were dismissed. If there is no dismissal, then there can be no question as to the legality or illegality thereof. (Claudia’s Kitchen Inc. v. Tanguin, 811 Phil. 784, 794 (2017), citing Ledesma Jr. v. NLRC, 562 Phil. 939, 951 (2007), Exodus International Construction Corp. v. Bischoco, 659 Phil. 142, 154 (2011).

Here, after a meticulous study of the records, We find that there is no substantial evidence to establish that petitioners were in fact dismissed from employment. Petitioners merely alleged that they were terminated by their chief cook and were barred from entering the restaurant, without offering any evidence to prove the same. They failed to provide any document, notice of termination or even any letter or correspondence regarding their termination. Aside from their bare allegations, they did not present any proof which would at least indicate that they were in fact dismissed.

On the contrary, the evidence on record points to the fact that after petitioners failed to report on Dec. 25, 2011, and after they went back to their workplace merely to get their share in the tips the following day, they refused to return to work and continued to be on AWOL thereafter. First, it is undisputed that petitioners went on AWOL on Dec. 25, 2011 (half day for Salmasan). Second, they in fact returned the following day to claim and receive their share in the tips as shown from the uncontroverted sign up sheet they signed, which belies their assertion that they were banned from entering the premises after being absent on Dec. 25, 2011. Third, petitioners themselves admitted that they continued to be on AWOL during “the Christmas season of 2011.” This was likewise reflected on their time cards.

Considering the above circumstances and taking them all together, we are inclined to agree with respondents that before they could even impose disciplinary action upon the petitioners, they already filed the complaint for illegal dismissal on Jan. 2, 2012, just when the Christmas season was over.

“Without substantial evidence that petitioners were indeed dismissed, it is futile to determine the legality or illegality of their supposed dismissal.” We are thus constrained to uphold the NLRC’s ruling, as affirmed by the CA, that there was no illegal dismissal in this case. (Efren Santos Jr. and Jeramil Salmasan vs. King Chef/Marites Ang/Joey delos Santos, G.R. 211073, Nov. 25, 2020).