3. Abandonment

B. Termination of Employment by Employee

• Resignation vs. Constructive Dismissal – Labor Code, art. 300
• Abandonment

Abandonment as a Just Cause for Termination

It means deliberate and unjustified refusal of an Ee to resume his employment.

Requirements for a Valid Finding of Abandonment

Two factors must be present:

• The failure to report for work, or absence without valid or justifiable reason; and
• A clear intention to sever Er-Ee relationship, with the 2nd element as the more determinative factor, being manifested by some overt acts. (Sta. Catalina College v. NLRC, G.R. No. 144483, 19 Nov. 2003)

How to Prove Abandonment

Abandonment is proven when the Er has shown that the Ee deliberately and unjustifiably refused to resume his employment without any intention of returning. There must be a concurrence of the intention to abandon and some overt acts from which an Ee may be deduced as having no more intention to work. The law, however, does not enumerate what specific overt acts can be considered as strong evidence of the intention to sever the Ee-Er relationship. (Sta. Catalina College v. NLRC, G.R. No. 144483, 19 Nov. 2003)

NOTE: In case of abandonment, the ER is still required under the law to notify the Ee of his termination. There is still a need to observe the two- notice rule and opportunity to be heard requirement. (New Puerto Commercial v. Lopez, G.R. NO. 169999, 26 July 2010)

Q: Mejila, a barber at Windfield Barber Shop, had an altercation with a fellow barber, which resulted in his subsequent turning over the duplicate keys of the shop to the cashier, took away all his belongings therefrom, and worked at different barbershop. Mejila then filed an illegal dismissal case but did not seek reinstatement as a relief. Did Mejila commit abandonment?

A: YES. Mejila’s acts such as surrendering the shop’s keys, not reporting to the shop anymore without any justifiable reason, his employment in another barber shop, and the filing of a complaint for illegal dismissal without praying for reinstatement clearly show that there was a concurrence of the intention to abandon and some overt acts from which it may be inferred that the Ee concerned has no more interest in working. (Jo v. NLRC, G.R. No. 121605, 02 Feb. 2000)

Q: The Ees averred that they were underpaid and filed a complaint for money claims against the Er before the LA. As a result of their complaint, they were relieved from their posts and were not given new assignments despite the lapse of six months. On the other hand, the Er maintains that the Ees were not dismissed but were merely transferred to a new post and voluntarily abandoned their jobs when they failed to report for duty in the new location. Upon termination, the Ee moved to file a joint complaint for illegal dismissal. Is there a valid indication of abandonment from work?

A: NO. For abandonment of work to fall under Art. 297 of the LC, as amended, as gross and habitual neglect of duties there must be the occurrence of two elements: first, there should be a failure of the Ee to report for works without a valid or justifiable reason and second, there should be a showing that the Ee intended to sever the Er-Ee relationship, the second element being the more determinative factor as manifested by overt acts.

The Er cannot simply presume that an Ee knows of a transfer order without evidence that the Ee was properly notified of it. Hence, the failure of an Ee to report for work at the new location cannot be taken against him as an element of abandonment. In addition to these tests for valid transfer, there should be proper and effective notice to the Ee concerned. It is the Er’s burden to show that the Ee was duly notified of the transfer. Verily, an Er cannot reasonably expect an Ee to report for work in a new location without first informing said Ee of the transfer. (Alert Security and Investigation Agency, Inc. et al v. Saidali Pasawilan, et al., G.R. No. 182397, 14 Sept. 2011)

Q: Leron was hired as a weaver by Demex. He is paid on a piece-rate basis and is contracted through job orders. He worked from Monday to Saturday, but there were times when he was required to work on Sundays. Leron received his wages at the end of every week but he never received standard benefits such as 13th month pay, service incentive leave, rest day pay, holiday pay, and overtime pay. Later, Leron was dismissed, thus, he filed a complaint for illegal dismissal. Demex justifies Leron’s dismissal on the ground of abandonment, arguing that Leron’s unauthorized absences, non- compliance with the return-to-work notices, and alleged act of crumpling the first return-to- work notice are indicators of his intention to sever his employment. Was there a valid dismissal?

A: NO. The dismissal was invalid because Demex’s evidence does not clearly establish a case of abandonment. It failed to prove the second element of abandonment. Abandonment of work has been construed as a “clear and deliberate intent to discontinue one's employment without any intention of returning back." To justify the dismissal of an Ee on this ground, two (2) elements must concur, namely: "(a) the failure to report for work or absence without valid or justifiable reason; and (b) a clear intention to sever the Er-Ee relationship.”

Mere failure to report to work is insufficient to support a charge of abandonment. The Er must adduce clear evidence of the Ee's "deliberate, unjustified refusal to resume employment,'' which is manifested through the Ee's overt acts. (Demex v. Leron, G.R. No. 204288, 08 Nov. 2017)

Q: Bulatao was the Senior VP of the IT Group of PNB. PNB's President and one Mr. Roy announced the conclusion of a Joint Venture Agreement (JVA) between PNB and Mr. Roy. It was announced that not all IT staff would be retained; everyone had to undergo a test as a prerequisite for absorption. Those who would not be absorbed would be offered retirement packages.

Bulatao objected because of the supposed huge capital exposure on PNB's end so he manifested his intent to retire in a letter dated 10 Nov. 1999.

On 26 Dec. 1999, Bulatao had a meeting with a member of the Board who asked him to reconsider and join the latter’s management team. So he went back to work on 01 Jan. 2000. As the Board had not yet acted on his application for retirement, he withdrew it in a Memorandum dated 25 Jan. 2000.

The HR then informed him not to report for work as the Board already accepted his "resignation." Bulatao filed a Complaint for Illegal Termination of Appointment and Damages with RTC.

Thereafter, he received a letter informing him that the Board, by virtue of Resolution No. 38 of 28 Jan. 2000, approved and confirmed the acceptance of his resignation (as the Board treated his application for retirement as a resignation).

The RTC concluded that Bulatao abandoned his employment. The CA held that Bulatao was illegally dismissed.

Was there abandonment?

A: NO. To establish abandonment, the Er must prove that 1) the Ee must have failed to report for work or must have been absent without valid or justifiable reason; and 2) that there must have been a clear intention on the part of the Ee to sever the Er-Ee relationship manifested by some overt act.

In this case, it was clear in Bulatao's letter that he was taking an official leave of absence following his statement that he was taking the bank's offer to retire. Moreover, his taking up the offer to retire did not stem from Bulatao's desire to willingly and unconditionally cut ties with PNB but because of the JVA which he believed to be disadvantageous to PNB. To add, Bulatao withdrew his application to retire before the Board "approved" his application to "resign." Indeed, "there must be a positive and overt act signifying an Ee's deliberate intent to sever his or her employment," which is wanting.

Further, filing an illegal dismissal case is inconsistent with abandonment, as in his complaint, Bulatao prayed for reinstatement. PNB failed to show that Bulatao had a clear and deliberate intent to sever his employment without any intention of returning (Philippine National Bank v. Manuel C. Bulatao, G.R. No. 200972, December 11, 2019, as penned by J. Hernando).

Q: Santos and Salmasan were employed by King Chef. On 25 Dec. 2011, Santos rendered only a half day work without prior authorization. Salmasan, on the other hand, did not report at all. They claimed that in view thereof, they were dismissed from employment. They averred that when they tried to report for work, their chief cook told them that they were already terminated.

King Chef through his General Manager averred that Santos and Salmasan violated the memorandum informing the Ees of King Chef that no absences would be allowed on Dec. 25, 26, 31 and Jan. 1 unless justified. After petitioners failed to report for work on 25 Dec. 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. Rule on the contention of King Chef’s General Manager on the matter of AWOL.

A: The contention of King Chef’s General Manager is unmeritorious. For the claim that Santos and Salmasan went AWOL, the Er must prove that first, the Ee "failed to report for work for an unjustifiable reason," and second, the "overt acts showing the Ee's clear intention to sever their ties with their Er.”

In the present case, there was no showing here that Santos and Salmasan’s absences were due to unjustifiable reason, or that petitioners clearly intended to terminate their employment. Thus, there is no abandonment present. (Santos, Jr. v. King Chef, et. al., G.R. No. 211073, November 25, 2020, as penned by J. Hernando)

Forms of neglect of duty

• Habitual tardiness and absenteeism;
• Abandonment of work
• Failure to report for work or absence without valid or justifiable reason; and
• Clear intention to sever EER is manifested by some overt acts (Tamblot Security and General Services v. Item, G.R. No. 199314, 2015)

Due Process in Abandonment

Twin-Notice Requirement

• First Notice directing the employee to explain why he should not be declared as having abandoned his job;
• Second Notice to inform him of the employer’s decision to dismiss him on the ground of abandonment (Kingsize Manufacturing Corp v. NLRC, G.R. Nos. 110452,54, 1994)

Notices in abandonment cases must be sent to the employee’s last known address per record of the company. The employer need not look for the employee’s current whereabouts (Agabon v. NLRC, G.R. No. 158693, 2004)

A formal hearing is not invariably required to validly dismiss an employee for abandonment, provided the employer gives the employee the required notices and a meaningful opportunity to explain or defend against the charge (Intertranz Container Lines v. Bautista, G.R. No. 187693, 2010)

Mere absence or failure to report for work, even after notice to return, does not necessarily amount to abandonment. Abandonment is a matter of intention and cannot lightly be presumed from certain equivocal acts. The operative act is still the employee’s ultimate act of putting an end to his employment (Jordan v. Grandeur Security and Services, G.R. No. 206716, 2014)

Abandonment vis-à-vis Illegal Dismissal

General Rule: Abandonment inconsistent with the immediate filing of a complaint for illegal dismissal Tamblot Security v. Item, G.R. No. 199314, 2015)

Exception: The above rule has no application where the complainant does not pray for reinstatement and asks for separation pay instead (Jo v. NLRC, G.R. No. 121605, 2000)