Absence, not abandonment

Mere absence or failure to report for work is not tantamount to abandonment of work to justify dismissal of the absent employee. The employer must also prove that the absence is without valid or justifiable reason and that there is deliberate and unjustified refusal to go back to work. This is illustrated in the case of Manny.

Manny worked in AM Industries Inc. (AM) as machine operator receiving a daily wage of P130 and later on P138. After twelve years of work, Manny filed an emergency leave of absence on account of his son’s hospitalization for acute gastroenteritis. When he returned to work three days later, he was immediately served a 30 day suspension notice for alleged violation of company rules about making false, vicious and malicious utterances or statements prejudicial to the company, its business, officers and employees, as well as failure or refusal to cooperate with his superior or co-employees in the performance of the latter’s duty.

Feeling aggrieved, Manny filed a complaint for illegal suspension against AM and its owner, Mr. Moreno in the regional arbitration branch of the NLRC. When his 30 day suspension ended, AM wrote a letter directing Manny to report for work immediately. Manny refused, so AM sent him a notice to terminate giving him five (5) days to show cause why he should not be dismissed on the ground of abandonment of work. For his part, Manny submitted to AM a letter reply explaining that because of the pendency of his complaint for illegal suspension with the labor arbiter, he could not report for work.

AM found his explanation insufficient, so it sent a notice of termination to Manny dismissing him effective on the day of the expiration of his suspension. This prompted Manny to amend his complaint from illegal suspension to illegal dismissal.

The labor arbiter dismissed Manny’s complaint of illegal dismissal for lack of merit declaring that his dismissal was for a valid cause. On appeal, the NLRC reversed and set aside the Labor Arbiter’s decision. The NLRC ordered Manny’s reinstatement, without loss of seniority and with backwages for three years.

On further appeal, the Court of Appeals (CA) reversed the NLRC and reinstated the decision of the Labor Arbiter. The CA said that there was just cause for terminating Manny for serious misconduct and willful disobedience to lawful orders when he refused to return to work after the expiration of the 30 day suspension despite being formally advised to go back to work. The CA said that the immediate amendment and filing of the case of Manny for illegal suspension to illegal dismissal does not negate the charge of abandonment of work because Manny committed no other overt actions indicating his desire to go back to work.

Was the CA correct?

No.

Manny’s absence is not without a justifiable reason. Upon receipt of the notice to terminate, he sent AM a letter explaining that he could not go back to work because of the pendency of his complaint for illegal suspension. And immediately after he was dismissed, he lost no time to amend his complaint to illegal dismissal. This alone negates the intention on his part to forsake his work. The filing of a complaint of illegal dismissal is inconsistent with the charge of abandonment, for an employee who take steps to protest his dismissal cannot by logic be said to have abandoned his work. Moreover AM has not shown by clear proof the deliberate and unjustified intent of Manny to sever the employer-employee relationship. It was unlikely that Manny has abandoned his job for no reason at all considering the hardship of the times.

So Manny was illegally dismissed. He is entitled to his full backwages and other benefits from the time his compensation was withheld up to the time of his reinstatement. However in view of the strained relations between him and AM, a more equitable disposition would be an award of separation pay of one month salary for every year of service instead of reinstatement plus of course the backwages and other benefits (Samarca vs. Arc-Men Industries, G.R. No. 146118 October 9, 2003).