DIVISION

[ GR No. 240123 & GR No. 240125, Jun 17, 2020 ]

DOMINGO P. GIMALAY v. CA

DECISION
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LAZARO-JAVIER, J.:

The Case

[1]
This petition for review on certiorari seeks to reverse the following dispositions of the Court of Appeals in CA-G.R. SP No.
130731 and CA-G.R. SP No. 134905:

[2]
1. Decision dated August 18, 2017 reversing the decision of the National Labor Relations Commission (NLRC) and declaring as
valid the dismissal of petitioner Domingo P. Gimalay; and

[3]
2. Resolution dated May 29, 2018 denying petitioner's motion for reconsideration.

Antecedents

On February 2, 2004, private respondent Granite Services International, Inc. (Granite Services) hired petitioner Domingo P.
Gimalay as mechanical technician/rigger on a project-based employment. On January 1, 2007, petitioner was hired as a regular
member of the company's work pool.

Petitioner's contract with Granite Services required him to work on various projects at different locations here and abroad. For
his assignment abroad, he would receive compensation based on the stipulated rates. For the periods that he was out of
assignments, he would be entitled to P15,000.00 as monthly retainer or waiting fee. This amount was later increased to
[4]
P18,000.00 on January 1, 2009.

On January 25, 2012, petitioner was deployed to Ghana, Africa for a two (2) month contract on a monthly salary of USD900.00.
[5]

Private respondents alleged that on February 23 and 24, 2012, petitioner repeatedly violated Granite Services' safety code. First,
he was allegedly spotted working on top of a compressor casing at the back of a trailer instead of working from the trailer.
Second, petitioner allegedly did not give proper clearance to the crane operator causing a compressor casing to swing towards an
employee which could have caused serious danger to the latter's life. Lastly, petitioner allegedly stood on top of a turbine without
a safety harness. Outage Excellence Leader Alan Carruth saw and reported these transgressions via e-mail to Granite Services'
Human Resource Manager, private respondent Daniel Sargeant. A few days later, Service Manager Bonifacio Quedi launched a
formal investigation. Meanwhile, petitioner completed his overseas contract and returned to the Philippines on March 3, 2012.[6]

On March 5, 2012, Service Manager Quedi called petitioner to a meeting and asked him to explain why he should not be
dismissed for gross misconduct. Another meeting took place between them together with HR Manager Sargeant. On March 7,
2012, a formal notice of termination was served on petitioner.[7]

Petitioner averred that on March 7, 2012, Granite Services' security guard prevented him from entering its premises. He claimed
that even assuming that the alleged incidents were true, the penalty of dismissal was not commensurate to his so-called
infractions.

The Labor Arbiter's Ruling

By Decision[8] dated August 31, 2012, Labor Arbiter Alberto B. Dolosa granted the relief prayed for and declared petitioner to
have been illegally dismissed:

WHEREFORE, premises considered, judgment is hereby entered declaring that the dismissal of complainant IILEGAL for
failure of the respondents to substantially prove just cause and observance of due process. Consequently, respondents
GRANITE SERVICES INTERNATIONAL INC. is hereby ordered to pay complainant DOMINGO P. GIMALAY, as of the date
of this Decision, the following judgment awards:

1. Backwages - P126,000.00
2. Separation Pay, in lieu of
- 162,000.00
reinstatement
3. 10% Attorney's Fees - 28,800.00
TOTAL P316,800.00

All other claims are dismissed for lack of merit.

[9]
SO ORDERED.

Labor Arbiter Dolosa held that there was no concrete and credible evidence to substantially prove the incidents attributed to
petitioner. There was also no concrete and credible evidence that the company launched a formal investigation affording
petitioner a chance to explain his side. In any case, the infractions were for "near misses." The labor arbiter found that no actual
accident happened, no one was injured, and no damage was inflicted. Hence, the labor arbiter opined that admonition or
reprimand would have been the commensurate penalty, not dismissal.[10]

The labor arbiter, however, ruled that since petitioner had already completed his contract abroad at the time he was dismissed
from his work, his backwages should be based on his monthly retainer or waiting fee of P18,000.00 and not on his monthly salary
of USD900.00 when the alleged incidents happened.[11] Further, labor arbiter Dolosa ordered payment of separation pay in lieu
of reinstatement because:
 x x x reinstatement is no longer feasible because of the existence of strained relation between the parties and the
respondent's lack of intention to reinstate the complainant by their offer, by way of amicable settlement, of separation pay
during the mandatory conference. Notably, the settlement through payment of separation pay failed to materialize because
[12]
of the parties' disagreement as to the rate of pay to be used.

Both parties appealed to the NRLC. On one hand, private respondents argued that petitioner was dismissed for cause; on the
other, petitioner claimed that the basis for his backwages should be his latest monthly salary in Ghana in the amount of
USD900.00. He did not anymore question the directive to pay separation benefits in lieu of reinstatement. His appeal, in fact,
was only focused on the amount of separation benefits awarded him.

The NLRC's Ruling

Through its Decision[13] dated March 7, 2013, the NLRC affirmed with modification:
Having established the illegality of the dismissal, We sustain the grant of full backwages computed from the date the
Complaint was dismissed up (to) the finality of this Decision, on top of the separation pay computed from January 1, 2007
likewise up to the finality of this Decision.

Both awards are based on his latest monthly salary of P264,867.17 per pay slip marked as Annexes "6-C" and "6-D", broken
down as follows:

Salary from February 1, to 15, 2012 = P106,997.73 per Annex 6-C

Salary from February 16 to 28,
= P157,869.44 per (A)nnex 6-D
2012
Total P264,867.17

Simple logic made it clear that the Complainant was hired to work, not to stand-by and do nothing. He was hired to work as
Rigger and Mechanical Technician abroad whose latest monthly salary paid to him on February 29, 2012 as such was, as
computed above, P264,867.17 for the month of February, 2012 (Annexes 6-C and 6(-)D/Complainant's Position Paper)
therefore it should be the basis of his backwages and separation pay. The "waiting fee or retainer fee" cannot be considered
as his monthly salary as Rigger and Mechanical Technician because during the waiting period, he was not doing the work for
which he was being employed.

Forced to litigate to protect his rights, the Complainant is entitled to an award of attorney's fees not exceeding 10% of the
judgment award.

Accordingly, the Decision is MODIFIED in that the Respondents are ordered to pay the Complainant, tentatively, the
following:

1. Backwages: -
1. Basic
3/7/2012 (date dismissed) up to 2/7/2012 (date of this Decision)
P264,867.17x 11 months = P2,913,538.87

th
2. 13 Month Pay: -
P2,913,538.87/12 = P 242,794.906

Service Incentive Leave

3.
Pay
P264,867.17
--------------
26
= P10,187.20 x 11/12 x 11 months
= P102,720.90 (SILP)

2. Separation Pay: -
1/1/2007 up to 2/7/2012 = P1,587,403.02
 P264,867.17 x 6 years
TOTAL= P4,846,457.70

3. Attorney's fees of 10% = P484.645.77

Total Award = P5,331,103.47

[14]
SO ORDERED.

The NLRC agreed with the labor arbiter that there was no concrete and credible evidence to substantially prove the "near miss"
incidents attributed to petitioner. There was also no proof that Outage Excellence Leader Carruth was petitioner's supervisor, and
therefore, he could not be considered a competent witness. There was similarly no hard evidence to prove that a formal
investigation was held and that petitioner was given the chance to explain his side. In the absence of substantial and procedural
due process, petitioner was illegally dismissed.[15]

The NLRC, however, ruled that for purposes of computing the backwages, petitioner's salaries abroad must be considered. Hence,
petitioner's average monthly salary, taking into account his retainer fee and monthly salaries abroad, should be the basis for the
computation of the award of backwages.[16]

In its Resolution[17] dated May 15, 2013, the NLRC denied private respondents' motion for reconsideration.[18]

Proceedings Before the Court of Appeals

Private respondents assailed the NLRC's Decision and Resolution via petition for certiorari before the Court of Appeals under
CA-G.R. SP No. 130731.

Meantime, the NLRC issued an Entry of Judgment on June 25, 2013.[19] Pursuant thereto, the labor arbiter issued the Writ of
Execution dated August 29, 2013. In the implementation thereof, the bank accounts and appeal bond of Granite Services were
garnished. Even then, private respondents voluntarily complied with the Writ of Execution and deposited the amount of
P5,014,303.47 constituting the judgment award less the amount covered by the appeal bond (P316,800.00).[20] Following the
release of the full amount of P5,014,303.47, private respondents moved to lift the notices of garnishment. Under Order dated
September 30, 2013, the labor arbiter denied the motion to lift the notices of garnishment. He also directed the NLRC Cashier to
release the P5,014,303.47 to petitioner.[21]

Petitioner then sought an alias writ of execution to cover his additional claim of P2,872,450.52. Meantime, private respondents
filed second motion to lift the notice of garnishment which the labor arbiter Dolosa granted per Order dated October 21, 2013.
[22] Petitioner thus filed a Petition for Extraordinary Remedy with the NLRC to annul the aforesaid order and grant his monetary

award of P3,188,083.87.

Under Resolution dated January 28, 2014, the NLRC granted petitioner's claim but only to the extent of P1,359,651.45 and
directed labor arbiter to issue the corresponding Alias Writ of Execution for collection of petitioner's remaining monetary awards.
[23]
In its subsequent Order dated February 25, 2014, the NLRC denied private respondents' motion for reconsideration.[24]

Private respondents, too, went back to the Court of Appeals via CA-G.R. SP No. 134905 to question the NLRC Resolution
dated January 28, 2014 granting petitioner's claim and Order dated February 25, 2014 denying their motion for reconsideration.
This petition was consolidated with CA-G.R. SP No. 130731.

Proceedings Before the Court of Appeals

CA-G.R. SP No. 130731

Private respondents argued that petitioner was validly dismissed for serious misconduct and willful disobedience of company
safety rules. They claimed that petitioner himself did not deny the incidents.

In the alternative, private respondents claimed that, if at all, petitioner was entitled to his additional money claims, the NLRC
should have pegged it at P18,000.00, petitioner's monthly retainer/waiting fee. It was the amount he was receiving as salary
when he got terminated. The stipulated salary for his overseas work in Ghana had become functus oficio because it was already a
terminated and completed contract.[25]

CA-G.R. SP No. 134905

Private respondents claimed that the NLRC should not have entertained petitioner's Petition for Extraordinary Remedy because
Section 15, Rule XII of the 2011 NLRC Rules of Procedure expressly stated that no appeal from the order or resolution issued by
the labor arbiter during the execution proceedings shall be allowed or acted upon by the NLRC. They also stressed that petitioner
was no longer entitled to any additional award due to the full satisfaction of the writ of execution.[26]

The Court of Appeals' Ruling

In its assailed Decision[27] dated August 18, 2017, the Court of Appeals reversed the NLRC rulings:

WHEREFORE, premises considered, the twin Petitions are GRANTED.

Accordingly, the assailed Decision of the NLRC on March 7, 2013 and Resolution on January 28, 2014 are hereby
REVERSED. Necessarily, private respondent Domingo Gimalay is hereby ordered to return to petitioners whatever amount
he received pursuant to the Writ of Execution dated August 29, 2013 and the Updated Writ of Execution issued pursuant to
the Order of the NLRC dated March 10, 2014, in conformity with Section 14, Rule XI of the 2011 NLRC Rules of Procedure.
Nevertheless, petitioner-company is hereby ordered to pay private respondent nominal damages in the amount of
P30,000.00 on account of its failure to observe procedural due process.

[28]
SO ORDERED.

The Court of Appeals held that petitioner was validly dismissed on ground of gross misconduct for flagrantly disregarding safety
processes and procedures which endangered not only himself but others. Petitioner's infractions were personally witnessed by
Outage Excellence Leader Carruth.[29] By signing Granite Services' Personal Safety Pledge, petitioner acknowledged that his
employment might be terminated for grave misconduct or willful neglect in the discharge of duties.[30]

The Court of Appeals nonetheless agreed with both the labor arbiter and the NLRC that petitioner was denied due process. It held
that private respondents failed to comply with the twin requirements of notice and hearing. It noted that there was no written
notice of infraction served on petitioner nor proof of the alleged meeting where petitioner was supposed to have been afforded the
opportunity to explain himself. For these deficiencies, entitled petitioner to nominal damages of P30,000.00.[31]

The Court of Appeals also held that petitioner is not entitled to the relief of extraordinary remedy and the issuance of an alias writ
of execution. This flowed from his non-entitlement to backwages, separation pay, attorney's fees, and additional compensation
and benefits.[32]

Under its assailed Resolution[33] dated May 29, 2018, the Court of Appeals denied petitioner's motion for reconsideration.

The Present Petition

Petitioner now faults the Court of Appeals for finding he was validly dismissed. He reiterates the factual findings of the labor
arbiter and the NLRC that he did not violate Granite Services' safety procedures. He cites these tribunals' conclusion that there is
no concrete and credible evidence to substantiate the alleged infractions charged against him.

Petitioner further asserts that it was in fact Granite Services which provided an unsafe environment for its workers. He did not
wear a harness during the third incident in question because there was no hangers or knobs to which a harness could be hooked.
But even assuming his act was a violation of the safety code, this did not actually result in any damage to life or property, aside
from the fact that it was only his first offense in his eight (8) years of service. This infraction does not call for the harshest penalty
of dismissal from service.[34]

More, petitioner avers that private respondents misled the Court of Appeals and the labor tribunals when they insisted that his
employment contract in Ghana had been completed. He was, in fact, repatriated to the Philippines to pave the way for his next
deployment to another country. His repatriation, nonetheless, was just the start of the grand scheme to dismiss him.[35]

In their Comment[36] dated February 8, 2019, private respondents seek to dismiss the petition on procedural and substantial
grounds.

On procedural grounds, private respondents stress that the petition was filed one (1) day late. Petitioner received the copy of the
Court of Appeal's Resolution denying his motion for reconsideration on June 20, 2018, thus, giving him only until July 5, 2018 to
file the present petition. Since the petition was filed only on July 6, 2018, or one (1) day late, the dispositions of the Court of
Appeals had therefore become final and executory. Hence, this Court no longer has jurisdiction to review these rulings.

Private respondents bewail petitioner's availment of Rule 65 instead of Rule 45 of the Revised Rules of Court. They too observe
that the petition was not verified. Neither was it accompanied by certified true copies of the assailed Court of Appeals' rulings and
pertinent pleadings.[37]

In any event, private respondents assert that sufficient evidence was presented to substantiate the charge of serious misconduct
against petitioner. They cite the e-mail of Outage Excellence Leader Carruth detailing petitioner's infractions of Granite Services'
safety code. There was also an incident report which documented petitioner's misconduct. Petitioner never contested the
authenticity and accuracy of the contents of these documents.[38] Also, petitioner willfully and deliberately disregarded the
safety procedures laid out by Granite Services: (a) he was aware that the compressor casings could not support substantial weight
and could not be used as a platform; (b) he failed to give the proper signal to the crane operator which almost caused injury to his
co-worker; and (c) he willfully did not wear a safety harness while working on top of a turbine though there was a line in place for
a harness, which was the same line used by his co-workers to attach their own safety harnesses.[39]

Private respondents conclude that petitioner's repeated violations of safety precautions showed his indifference to and disregard
of Granite Services' policies and as a result, he must be dismissed from work.[40]

Issues

1. Should the petition be dismissed for its alleged procedural lapses?

2. Did the Court of Appeals err in holding that petitioner was dismissed for a valid cause?

Ruling

To begin with, the Court is not a trier of facts. It is not the Court's function to analyze or weigh evidence all over again in view of
the corollary legal precept that findings of fact of the Court of Appeals are conclusive and binding on this Court. The Court,
nonetheless, may proceed to probe and resolve factual issues presented herein because the findings of the Court of Appeals are
contrary to those of the labor arbiter and the NLRC.[41]

Procedural Issues

Private respondents assert that the assailed Court of Appeals' assailed issuances had already become final and executory because
the present petition was filed one (1) day late.

This is inaccurate.

The petition was actually filed on time. Petitioner received the assailed Court of Appeals Resolution denying his motion for
reconsideration on June 21, 2018,[42] and not June 20, 2018 as private respondents erroneously claim. Petitioner, therefore, had
fifteen (15) days from June 21, 2018 or until July 6, 2018 within which to file the present petition. As private respondents
correctly claim, the petition was filed on July 6, 2018, well within the 15-day reglementary period.

Another. Contrary to private respondents' claim, the petition was accompanied by a certified true copy of the challenged
Decision[43] and an original copy of the assailed Resolution.[44]

As for the verification and certification of non-forum shopping, petitioner had already submitted to the Court a notarized
verification and certification of non-forum shopping[45] as noted in our Resolution dated November 12, 2018.[46]

With regard to the correctness of the remedy availed of, petitioner has labeled this petition as a "Petition/Appeal by Certiorari"
albeit he cites grave abuse of discretion amounting to lack or excess of jurisdiction. There is nothing wrong with this for so long as
it was initiated within fifteen (15) days from receipt of the assailed resolution pursuant to Rule 45.

Substantial Issue

Both the labor arbiter and the NLRC held that private respondents failed to substantiate the charge of serious or gross
misconduct against petitioner. The Court of Appeals, on the other hand, held that private respondents were able to prove the
alleged infractions.

In Distribution & Control Products, Inc. v. Santos,[47] the Court reiterated that in termination cases, the burden of proof
rests upon the employer to show that the dismissal is for just and valid cause. Failure to do so necessarily means that the
dismissal was illegal. The employer's case succeeds or fails on the strength of its evidence and not on the weakness of the
employee's defense. If doubt exists between the evidence presented by the employer and the employee, the scales of justice must
be tilted in favor of the latter.

To prove petitioner's alleged violations of the safety procedures, respondent company submitted the e-mail of Outage Excellence
Leader Carruth,[48] an Incident Report[49] regarding petitioner's supposed failure to sufficiently communicate with the crane
operator, and the Termination Letter[50] signed by HR Manager Sargeant. The Court of Appeals considered these documents
sufficient to hold that petitioner was dismissed for cause.

We disagree.

Petitioner was charged with three (3) violations of safety procedures, viz.:

(a) He stood on top of the compressor casing on the back of a trailer, when he should have been working from the trailer;

(b) He was responsible for unclear communication between him and the crane operator which caused a casing to swing towards
another employee; and

(c) He stood on top of a turbine with no safety harness.

As for the first infraction, no evidence other than Outage Excellence Leader Carruth's e-mail and the termination letter was
presented to show that petitioner indeed stood on top of the compressor. Would a reasonably prudent person accept these
documents as sufficient to prove the charge and on the basis thereof dismiss the employee from work? Certainly not. These pieces
of evidence are self-serving documents which private respondents or any other person could have easily drafted. As it was not
impossible for private respondents to access other witnesses, they should have secured the statements of other workers on site to
corroborate their claim.

With regard to the second infraction, private respondents aver that petitioner failed to clearly communicate with the crane
operator before signaling for the release of the casing. The Incident Report itself, however, states that he blew his whistle and
gave the signal to the crane operator only after he "finished checking casing alignment/center of gravity." It shows that
petitioner took the necessary precautions before he gave the signal to the crane operator. When the crane operator hoisted up the
casing, the casing swung to the left and narrowly missed another worker.
True, an accident could have occurred, but this does not necessarily mean that petitioner failed to take the proper precautions or
that the incident was due to his fault. A lot of factors could have caused the casing to swerve to the left. It could have been caused
by the crane operator. It could have also been caused by the mechanics of the crane itself. It was also possible that the employee
who was nearly hit by the casing was not there when petitioner gave the signal. In fine, there are several circumstances which
could have led to the incident. Private respondents did not investigate these factors; neither were they able to rule them out, like
any reasonably prudent person would have done. Without any investigation to support private respondents' claim, it cannot be
reasonably concluded that the incident was due solely to petitioner's negligence.

As for the third and last incident, petitioner repeatedly avers that there was no available line to which the safety harness could be
attached; private respondents insists such available line was in place.

Once again, private respondents did not present any evidence to support this allegation. They could have produced photos
showing that a line was available for the harness which petitioner could have used at that time. They could have easily produced
these photos, but they failed to do so. Too, they could have secured the statements of other workers on site who were allegedly
able to use the line for their own safety harness. But still, private respondents failed on this score. Instead, they relied solely on
the self-serving, nay, unverified report of Outage Excellence Leader Carruth.

Verily, therefore, the Court of Appeals erred when it ruled that the charges against petitioner for violation of company safety
procedures were substantiated by concrete and substantial evidence.

As for procedural due process, all three (3) tribunals below were unanimous in declaring that private respondents did not comply
with the twin-notice rule. Private respondents did not send a written notice to petitioner informing him of his alleged infractions,
nor was there an investigation where petitioner could have been given the chance to explain his side.

All told, the absence of both substantive and procedural due process in effecting petitioner's dismissal renders it illegal.

On the consequences of the illegality of petitioner's dismissal, Noblado v. Alfonso[51] held:

 In fine, respondent's lack of just cause and non-compliance with the procedural requisites in terminating petitioners'
employment taints the latter's dismissal with illegality.

Where the dismissal was without just or authorized cause and there was no due process, Article 279 of the
Labor Code, as amended, mandates that the employee is entitled to reinstatement without loss of seniority rights
and other privileges and full backwages, inclusive of allowances, and other benefits or their monetary
equivalent computed from the time the compensation was not paid up to the time of actual reinstatement.
However, if reinstatement is no longer possible, the backwages shall be computed from the time of the
employee's illegal termination up to the finality of the decision.

xxx xxx xxx

In addition to payment of backwages, petitioners are also entitled to separation pay equivalent to one (1) month pay for
every year of service, with a fraction of at least six (6) months considered as one (1) whole year, from the time of their illegal
dismissal up to the finality of this judgment, as an alternative to reinstatement.

Also, in accordance with prevailing jurisprudence, legal interest shall be imposed on the monetary awards herein granted
at the rate of six percent (6%) per annum from the finality of this Decision until fully paid. (Emphasis supplied)

Thus, an illegally dismissed employee is ordinarily entitled to: (a) reinstatement without loss of seniority rights and other
privileges, or in lieu thereof, separation pay equivalent to one (1) month pay for every year of service, with a fraction of at least six
(6) months considered as one (1) whole year, from the time of the employee's illegal dismissal up to the finality of the judgment;
and (b) full backwages inclusive of allowances and other benefits or their monetary equivalent computed from the time
compensation was not paid to the time of his actual reinstatement.

As for reinstatement, petitioner has not sought the same way back in the proceedings before the labor arbiter and up until here.
On this score, we reckon with the pronouncement of the labor arbiter:

x x x this Labor Arbitration Court finds that reinstatement is no longer feasible because of the existence of strained relation
between the parties and the respondent's lack of intention to reinstate the complainant by their offer, by way of amicable
settlement, of separation pay during the mandatory conference. Notably, the settlement through payment of separation pay
[52]
failed to materialize because of the parties' disagreement as to the rate of pay to be used.

Consequently, petitioner is entitled to backwages of one (1) month for every year of service from the time of his illegal dismissal
up to finality of this Decision.

As regard the amount of petitioner's backwages, the Court agrees with the labor arbiter that petitioner's monthly retainer/waiting
fee of Phpl8,000.00 and not his monthly salary in Ghana (USD900.00 per month) should be used in the computation.

Philippine National Construction Corporation (PNCC) v. NLRC, et al.[53] instructs:

 An illegally dismissed employee is usually reinstated to his former position without loss of seniority rights and paid
backwages from the time he was separated from work up to his actual reinstatement. The purpose of reinstatement is to
restore the employee to the state or condition from which he has been removed or separated. Backwages aim to replenish
the income that was lost by reason of the unlawful dismissal.

In the case at bar, we hold that the NLRC gravely abused its discretion in computing private respondent's backwages based
on his salary abroad. The records show that private respondent was not illegally dismissed while working in the
Middle East project of the petitioner. His overseas assignment was a specific project and for a definite
period. Upon the completion of the project in 1984, he received all the benefits due him under the overseas contract. He
then voluntarily returned to the Philippines to await his deployment in the local projects of the petitioner. Clearly, he was
not illegally dismissed while working in the Middle East.

When private respondent prayed for reinstatement, he meant reinstatement to his position as a regular
member of petitioner's work pool. If private respondent were given local assignments after his stint
abroad, he would have received the local wage. This is the "loss" which backwages aim to restore.

In making this ruling, we take into account the principle that salary scales reflect the standard of living prevailing in the
country and the purchasing power of the domestic currency. Private respondent received a higher salary rate for his work in
the Middle East because the cost of living and the standard of living in that country are different from those in the
Philippines. (Emphasis supplied)

Petitioner here was a regular member of private respondents' work pool. He was assigned in Ghana only for a specific period, i.e.,
January 2012 to March 2012. On March 3, 2012, he returned to the Philippines. Thus, he had already completed his contract in
Ghana when Granite Services dismissed him from work.

As in PNCC, petitioner already received all the benefits due him under the completed and concluded overseas contract. He
returned to the Philippines not as a worker from Ghana but as a member of the regular work pool of Granite Services. As such, he
is entitled to receive not the amount stipulated in his Ghana contract but the monthly retainer/waiting fee of P18,000.00.
Consequently, the same should be the base amount for the computation of his backwages.

But petitioner argues that his salary in Ghana should be the basis for the computation of his backwages because he had not
actually completed yet his overseas contract. He claims that private respondents prematurely pulled him out from Ghana in the
guise of another overseas deployment.

Aside from this bare allegation, however, no evidence was adduced to prove that he was actually pulled out from Ghana in the
guise of another overseas deployment. In fact, Labor Arbiter Dolosa and the NLRC found that petitioner had already finished his
contract in Ghana. This factual finding is binding upon us since even the Court of Appeals did not deviate therefrom.

Verily, in accordance with the ruling in PNCC, petitioner's monthly retainer or waiting fee in the Philippines should be the basis
for the computation of his backwages.

On the award of damages, Leus v. St. Scholastica's College Westgrove[54] bears the ground rules:
 x x x A dismissed employee is entitled to moral damages when the dismissal is attended by bad faith or fraud or
constitutes an act oppressive to labor, or is done in a manner contrary to good morals, good customs or
public policy. Exemplary damages may be awarded if the dismissal is effected in a wanton, oppressive or
malevolent manner.

Bad faith, under the law, does not simply connote bad judgment or negligence. It imports a dishonest purpose or some
moral obliquity and conscious doing of a wrong, or a breach of a known duty through some motive or interest or ill will that
partakes of the nature of fraud.

It must be noted that the burden of proving bad faith rests on the one alleging it since basic is the principle that
good faith is presumed and he who alleges bad faith has the duty to prove the same. Allegations of bad faith and fraud must
be proved by clear and convincing evidence.

The records of this case are bereft of any clear and convincing evidence showing that the respondents acted in bad faith or in
a wanton or fraudulent manner in dismissing the petitioner. That the petitioner was illegally dismissed is insufficient to
prove bad faith. A dismissal may be contrary to law but by itself alone, it does not establish bad faith to entitle the dismissed
employee to moral damages. The award of moral and exemplary damages cannot be justified solely upon the premise that
the employer dismissed his employee without cause.

However, the petitioner is entitled to attorney's fees in the amount of 10% of the total monetary award pursuant to
Article 111 of the Labor Code. It is settled that where an employee was forced to litigate and, thus, incur expenses to protect
his rights and interest, the award of attorney's fees is legally and morally justifiable. (Emphasis supplied)

As in Leus, petitioner failed to show the requisite elements for the award of damages here. He failed to substantiate that private
respondents acted in bad faith, or that his dismissal constitutes an act oppressive to labor, or that his dismissal was done in a
manner contrary to good morals, good customs or public policy, or that his dismissal was done in wanton, oppressive, or
malevolent manner.

Following both statutory and case law, petitioner should be paid attorney's fees equivalent to ten percent (10%) of the total
monetary award. This is because he was forced to litigate and incur expenses to protect his rights and interest.

Petitioner is entitled to legal interest at the rate of six percent (6%) on all the monetary awards to him per annum from the
finality of this Decision until fully paid.[55]

Notably, however, the NLRC's judgment, which fixed a higher amount of backwages had already been executed. The only
question is whether there was a full or partial satisfaction of the correct amount. On this score, there is a need for the labor arbiter
to recompute the executed amount vis-a-vis the judgment amount. Whatever amount may still be deficient or paid in excess
should be satisfied by or refunded to private respondents, as the case may be.

One final point. There is no proof that private respondents Joseph Medina, Daniel Sargeant, and April Anne Junio acted with
malice or bad faith. They cannot be held solidarily liable with Granite Services.[56] This is especially true for private respondent
April Anne Junio who was not even impleaded as party respondent before the labor tribunals.
ACCORDINGLY, the petition is GRANTED. The Decision dated August 18, 2017 and Resolution dated May 29, 2018 of the
Court of Appeals in CA-G.R. SP No. 130731 and CA-G.R. SP No. 134905 are REVERSED and SET ASIDE. Private respondent
Granite Services International, Inc. is ordered to PAY petitioner Domingo P. Gimalay the following:

1) Full backwages computed at Php 18,000.00 per month, inclusive of allowances and other benefits, including but not limited to
service incentive leave pay and 13th month pay, from the time of his dismissal on March 7, 2012 up to the finality of this Decision;

2) Separation pay equivalent to one (1) month pay of Php 18,000.00 for every year of service, with a fraction of at least six (6)
months considered as one (1) whole year, computed from the date he got hired as a regular member of the company's work pool
on January 1, 2007 up to the finality of this Decision; and

3) Attorney's fees equivalent to ten percent (10%) of the total monetary award.

These monetary awards shall earn legal interest at the rate of six percent (6%) per annum from the finality of this Decision until
fully paid.

The case is REMANDED to Labor Arbiter Alberto B. Dolosa for the determination of whether the total monetary award has
already been fully or partially satisfied. Any unpaid amount should be further satisfied or any excess payment returned to Granite
Services International, Inc..

SO ORDERED.

Peralta, C. J., (Chairperson - First Division), Caguioa, J. Reyes, Jr., and Lopez, JJ., concur.

* Sometimes spelled in the records as "Seargent."

** Not included as a party in the cases before the labor tribunals and the Court of Appeals.

[1] Rollo, pp. 3-19.

[2] Penned by Associate Justice Eduardo B. Peralta, Jr. and concurred in by Associate Justice Priscilla J. Baltazar-Padilla and

Associate Justice Pedro B. Corales, rollo, pp. 20-45.

[3] Id. at 47-50.

[4] Id. at 450-451.

[5] Id. at 232 and 451.

[6] Id. at 451.

[7] Id. at 451-452.

[8] Id. at 449-460.

[9] Id. at 459-460.

[10] Id. at 455-456.

[11] Id. at 457-458.

[12] Id. at 457.

[13] Penned by Commissioner Numeriano D. Villena and concurred in by Presiding Commissioner Herminio V. Suelo and

Commissioner Angelo Ang Palaña, id. at 51-61.

[14] Id. at 59-60.

[15] Id. at 57-58.

[16] Id. at 57.

[17] Penned by Commissioner Numeriano D. Villena and concurred in by Presiding Commissioner Herminio V. Suelo and

Commissioner Angelo Ang Palaña, id. at 217-220.

[18] Id. at 550-565.

[19] Id. at 24.

[20] Id. at 25.

[21] Id.

[22] Id. at 25-26.

[23] Id. at 26-27.

[24] Id.

[25] Id. at 28-30.

[26] Id. at 31-32.

[27] Penned by Associate Justice Eduardo B. Peralta, Jr. and concurred in by Associate Justice Priscilla J. Baltazar-Padilla and

Associate Justice Pedro B. Corales, id. at 20-45.

[28] Id. at 44-45.

[29] Id. at 37-39.

[30] Id. at 41.

[31] Id. at 41-43.

[32] Id. at 43.

[33] Id. at 47-50.

[34] Id. at 12-13 and 16.

[35] Id. at 14-15.

[36] Id. at 112-162.

[37] Id. at 116-131.

[38] Id. at 132-136.

[39] Id. at 137-138.

[40] Id. at 144.

[41] See Status Maritime Corporation, et al. v. Sps. Margarito B. Delalamon and Priscila A. Delalamon, 740 Phil. 175, 189

(2014).

[42] Rollo, p. 3.

[43] Id. at 20-45.

[44] Id. at 47-50.

[45] Id. at 87.

[46] Id. at 110-111.

[47] 813 Phil. 423, 433 (2017), citing Agusan Del Norte Electric Cooperative, Inc., et al. v. Cagampang, et al., 589 Phil. 306, 313
(2008).

[48] Rollo, p. 233.

[49] Id. at 585-587.

[50] Id. at 234-235.

[51] 773 Phil. 271, 286 (2015).

[52] Rollo, p. 457.

[53] 349 Phil. 986, 992 (1998).

[54] 752 Phil. 186, 218-220 (2015).

[55] Noblado, et al. v. Alfonso, supra note 51, at 287.

[56] See Dimson v. Chua, 801 Phil. 778, 792 (2016).

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