• The employer has the burden of proof for monetary claims that are incurred in the normal course of business; conversely, the employee has the burden of proof if the monetary claims are not incurred in the normal course of business.
• In illegal dismissal, the employee has the burden of proof on the fact of dismissal; thereafter, the employer has the burden of proof to show that the dismissal was for a just or valid cause.

Concept of burden of proof

Burden of proof refers to the rule dictating which party has the responsibility to show proof over an issue or controversy.

In labor cases, this can either be the employer or the employee.

Monetary claims

"Notably, in determining the employee’s entitlement to monetary claims, the burden of proof is shifted from the employer or the employee, depending on the monetary claim sought." (Minsola v. New City Builders, Inc., G.R. No. 207613, 31 January 2018)

"In claims for payment of salary differential, service incentive leave, holiday pay and 13th month pay, the burden rests on the employer to prove payment… This likewise stems from the fact that all pertinent personnel files, payrolls, records, remittances and other similar documents – which will show that the differentials, service incentive leave and other claims of workers have been paid – are not in the possession of the worker but are in the custody and control of the employer." (Minsola v. New City Builders, Inc., G.R. No. 207613, 31 January 2018)

"On the other hand, for overtime pay, premium pays for holidays and rest days, the burden is shifted on the employee, as these monetary claims are not incurred in the normal course of business. It is thus incumbent upon the employee to first prove that he actually rendered service in excess of the regular eight working hours a day, and that he in fact worked on holidays and rest days."

Summary

The employer has the burden of proof over:

• Salary differential
• Service incentive leave
• Holiday pay
• 13^th month pay

Author’s Note: It is opined that the burden of proof on holiday pay should extend only to un-worked regular holidays where an employee received 100% of his daily salary rate despite not doing any work. However, if there is usually no work on a regular holiday but a need arose requiring employees to do work on a holiday, the burden of proof should be on the employee to show that he rendered work on that said holiday. In such a situation, the holiday pay is “not incurred in the normal course of business” and thus making it fall within the same category as overtime pay and premium pay.

The employee has the burden of proof over:

• Overtime pay
• Premium pay for holidays
• Premium pay for rest days

Author’s Note: It is submitted that the phrase “premium pay for holidays” refer to the premium pay for work on special non-working days, which is often loosely referred to as a “holiday”. It should not be confused with “regular holidays” which require holiday pay.

Illegal dismissal

Employee: on the fact of dismissal

In an illegal dismissal case, the employee has the burden of proof to first show that he was indeed dismissed from employment. “Before the employer must bear the burden of proving that the dismissal was legal, the employee must first establish by substantial evidence the fact of his dismissal from service.” (Reyes v. Global Beer Below Zero, Inc., G.R. No. 222816, 04 October 2017)

“Ei incumbit probatio qui dicit, non qui negat. The burden of proof is on the one who declares, not on one who denies. A party alleging a critical fact must support his allegation with substantial evidence, for any decision based on unsubstantiated allegation cannot stand without offending due process. And 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 before the burden is shifted to the employer that the dismissal was legal… In the extant case, the records are bereft of any evidence that would corroborate (the employee’s) claim that he was actually dismissed from employment. His asseveration that Arcenas instructed him to turnover his functions to Enriquez remains to be a naked claim. Apart from his bare self-serving allegation, nothing in the records even hints of him being severed from employment by (the employer).” (Mehitabel, Inc. v. Alcuizar, G.R. No. 228701, 02. 13 December 2017)

“In cases of illegal dismissal, the employer bears the burden of proof to prove that the termination was for a valid or authorized cause. 16 But before the employer must bear the burden of proving that the dismissal was legal, 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, G.R. No. 221096, 28 June 2017)

“The rule is that one who alleges a fact has the burden of proving it; thus, (the employees) were burdened to prove their allegation that (the employers) dismissed them from their employment. It must be stressed that the evidence to prove this fact must be clear, positive and convincing. The rule that the employer bears the burden of proof in illegal dismissal cases finds no application here because the (the employers) deny having dismissed the (the employees).” (Symex Security Services, Inc. v. Rivera, G.R. No. 202613, 08 November 2017)

“The Court is not unmindful of the rule in labor cases that the employer has the burden of proving that the termination was for a valid or authorized cause. However, it is likewise incumbent upon the employees that they should first establish by competent evidence the fact of their dismissal from employment. As an allegation is not evidence, it is elementary that a party alleging a critical fact must support his allegation with substantial evidence. It was also stressed that the evidence to prove the fact of dismissal must be clear, positive and convincing… In the present case, the facts and the evidence do not establish a prima facie case that (the employees) were dismissed from employment. Aside from their mere assertion and joint affidavit, (the employees) failed to adduce corroborative and competent evidence to substantiate their conclusion that they were dismissed from employment. (The employees) did not even present the alleged notice of termination of their employment. Therefore, in the absence of any showing of an overt or positive act proving that (the employer) had dismissed (the employees), the latter’s claim of illegal dismissal cannot be sustained as the same would be self-serving, conjectural and of no probative value.” (Tri-C General Services v. Matuto, G.R. No. 194686, 23 September 2015)

“In sum, (the employees) failed to discharge the burden of proving with substantial evidence that they were actually dismissed from work by (the employer). Since the fact of dismissal had not been satisfactorily established by (the employees), then the burden of proving that the dismissal was legal, i.e., that it was for just and authorized cause/s and in accordance with due process, did not shift to (the employer)…” (Doctor v. NII Enterprises, G.R. No. 194001, 22 November 2017)

Employer: on the validity of dismissal

“In an illegal dismissal case, the onus probandi rests on the employer to prove that its dismissal of an employee was for a valid cause.” (Marsman & Company, Inc. v. Sta. Rita, G.R. No. 194765, 23 April 2018)

“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 would necessarily mean 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. Moreover, the quantum of proof required in determining the legality of an employee’s dismissal is only substantial evidence. Substantial evidence is more than a mere scintilla of evidence or relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise.” (Agusan Del Norte Electric Cooperative, Inc. v. Cagampang, G.R. No. 167627, 10 October 2008)

“The burden of proving that the dismissal of the employees was for a valid and authorized cause rests on the employer. It is incumbent upon the petitioners to show by substantial evidence that the terminations of the employment of the respondents were validly made. Failure to discharge this duty would mean that the dismissal is illegal.” (Abbott Laboratories (Philippines), Inc. v. Torralba, G.R. No. 229746, 11 October 2017)

“It is an established principle that the dismissal of an employee is justified where there was a just cause and the employee was afforded due process prior to dismissal. The burden of proof to establish these twin requirements is on the employer, who must present clear, accurate, consistent, and convincing evidence to that effect.” (Allied Banking Corporation v. Calumpang, G.R. No. 219435, 17 January 2018)

About the author

Atty. Jake is a business lawyer and law mentor. He practices on labor and employment, corporate and regulatory compliance, data privacy, intellectual property, negotiations and contracts, as well as handles litigation and arbitration cases.