1/4/2021 E-Library - Information At Your Fingertips: Printer Friendly him merely to oversee the department and carry out management policies, rather than participate in production and technical development.[76] Indeed, the mere fact of petitioner's transfer to the new department does not support his claim of constructive dismissal. The Court reiterates the basic rules of evidence that each party must prove his affirmative allegation, and that mere allegation is not evidence. We also stress that the evidence to prove the fact of the employee's constructive dismissal must be clear, positive, and convincing. Absent any showing of an overt or positive act proving that respondents had dismissed petitioner, the latter's claim of illegal dismissal cannot be sustained.[77] Even so, the Court does not agree that petitioner abandoned his job. For abandonment to exist, two requisites must concur: a) the employee failed to report for work or was absent without valid or justifiable reason; and b) there was a clear intention to sever the employer-employee relationship manifested by some overt acts.[78] The CA upheld the NLRC's finding that petitioner's refusal to report for work despite receiving notices from Toyota is tantamount to abandonment.[79] In the first place, the NLRC should not have considered abandonment as an issue since Toyota never raised it before the LA. [80] Well settled is the rule, also applicable in labor cases, that issues not raised below cannot be raised for the first time on appeal, because of basic considerations of due process.[81] Moreover, petitioner's prayer for reinstatement negates the existence of a clear intention to sever the employment relationship. He may have been mistaken in assuming that he was dismissed, but his vigorous pursuit of this case shows his intent to resume work with Toyota. Finally, petitioner is not entitled to moral and exemplary damages and attorney's fees. Moral damages may be awarded to an employee if his dismissal was attended by bad faith or fraud, or was oppressive to labor, or done in a manner contrary to morals, good customs, or public policy, and that social humiliation, wounded feelings, grave anxiety and the like resulted therefrom.[82] Exemplary damages, on the other hand, are awarded when dismissal of the employee was done in a wanton, oppressive or malevolent manner.[83] As for attorney's fees, it is granted in actions for recovery of wages where an employee was forced to litigate and thus incur expenses to protect his rights and interests.[84] Here, it was not established that petitioner was constructively dismissed, much less that respondents acted in bad faith or in an oppressive or malevolent manner. There is also no showing that he was not paid his wages. Consequently, he cannot rightfully claim moral and exemplary damages and attorney's fees. WHEREFORE, the petition is DENIED. The Decision dated October 24, 2011 and Resolution dated April 13, 2012 of the Court of Appeals in CA-G.R. SP No. 116167 are AFFIRMED. SO ORDERED. https://elibrary.judiciary.gov.ph/thebookshelf/showdocsfriendly/1/65727 9/14