ABANDONMENT OF WORK CANNOT EXIST IF THERE IS HIGH IMPROBABILITY OF ABANDONMENT ON THE PART OF THE EMPLOYEE

Abandonment of work is a matter of intention. High improbability of abandonment on the part of employee belies the fact of abandon of work.

The Supreme Court held as follows:

Vicente C. Tatel vs. JLFP Investigation Security Agency, Inc., Jose Luis F. Pamintuan and/or Paolo C. Turno
G.R. No. 206942, February 25, 2015

Facts:

Respondent JLFP Investigation Security Agency, Inc. (JLFP), a business engaged as a security agency, hired Tatel as one of its security guards.

Tatel alleged that he was last posted at BaggerWerken Decloedt En Zoon (BaggerWerken) located at the Port Area in Manila. He was required to work twelve (12) hours everyday from Mondays through Sundays and received only P12,400.00 as monthly salary. On October 14, 2009, Tatel filed a complaint before the NLRC against JLFP and its officer, respondent Jose Luis F. Pamintuan (Pamintuan), as well as SKI Group of Companies (SKI) and its officer, Joselito Duefias, for underpayment of salaries and wages, non-payment of other benefits, 13th month pay, and attorney’s fees (underpayment case).

On October 24, 2009, Tatel was placed on “floating status”; thus, on May 4, 2010, or after the lapse of six ( 6) months therefrom, without having been given any assignments, he filed another complaint against JLFP and its officers, respondent Paolo C. Turno (Turno) and Jose Luis Fabella, for illegal dismissal, reinstatement, backwages, refund of cash bond deposit amounting to P25,400.00, attorney’s fees, and other money claims.

In their defense, respondents JLFP, Pamintuan, and Turno (respondents) denied that Tatel was dismissed and averred that they removed the latter from his post at BaggerWerken on August 24, 2009 because of several infractions he committed while on duty. Thereafter, he was reassigned at SKI, and last posted at IPVG in 2009.

Notwithstanding the pendency of the underpayment case, respondents sent a Memorandum dated November 26, 2009 (November 26, 2009 Memorandum) directing Tatel to report back to work, noting that the latter last reported to the office on October 26, 2009. However, despite receipt of the said memorandum, respondents averred that Tatel ignored the same and failed to appear; hence, he was deemed to have abandoned his work. Moreover, respondents pointed out that Tatel made inconsistent statements when he declared in the underpayment case that he was employed in March 1997 with a salary of P12,400.00 per month and dismissed on October 13, 2009, while declaring in the illegal dismissal case that his date of employment was March 14, 1998, with a salary of P6,200.00 per month, and that he was dismissed on October 24, 2009.

In his reply, Tatel admitted having received on December 11, 2009 the November 26, 2009 Memorandum directing him to report back to work for reassignment. However, when he went to the JLFP office, he was merely advised to “wait for possible posting.” He repeatedly back to the office for reassignment, but to no avail. He likewise refuted respondents’ claim that he abandoned his work, insisting that after working for JLFP for more than eleven ( 11) years, it was illogical for him to refuse any assignments, more so, to abandon his work and security of tenure without justifiable reasons.

LA Ruling:

The LA dismissed Tatel’s illegal dismissal complaint for lack of merit. The LA did not give credence to Tatel’ s allegation of dismissal in light of the inconsistent statements he made under oath in the two (2) labor complaints he had filed against the respondents. The LA noted that said inconsistent statements “relate not only to the dates that he was hired and supposedly fired but, more glaringly, to the amount of his monthly salaries.” It also observed that Tatel failed to explain said inconsistencies.

Aggrieved, Tatel appealed to the NLRC.

NLRC Ruling:

The NLRC reversed and set aside the LA’s Decision and found Tatel to have been illegally dismissed.

In so ruling, the NLRC rejected respondents’ defense that Tatel abandoned his work, finding no rational explanation as to why an employee, who had worked for more than ten (10) years for his employer, would just abandon his work and forego whatever benefits were due him for the length of his service.

Similarly, it debunked the claim of abandonment for failure of respondents to prove by substantial evidence the elements thereof, i.e., (a) that the employee must have failed to report for work or must have been absent without valid or justifiable reason, and ( b) there must have been a clear intention to sever the employer-employee relationship as manifested by overt acts.

Moreover, the NLRC ruled that Tatel’s dismissal was not constructive but actual. It likewise found no just and valid ground for Tatel’s dismissal; neither was procedural due process complied with to effectuate the same.

Respondents’ motion for reconsideration was denied.

CA Ruling:

The CA reversed and set aside the NLRC’s Decision and reinstated the LA’s Decision dismissing the illegal dismissal complaint filed by Tatel.

Finding grave abuse of discretion on the part of the NLRC in rendering its assailed Decision, the CA instead concurred with the stance of the LA that Tatel’ s inconsistent statements cannot be given weight vis-a-vis the evidence presented by the respondents. In this regard, the CA declared that if Tatel could not be truthful about the most basic information or explain such inconsistencies, the same may hold true for his claim for illegal dismissal.

Tatel moved for reconsideration, which was denied.

Issue/s:

Whether or not there is constructive dismissal when an employee who was summoned to report to work which he also received since there was no evidence of another detail

Whether or not there can be abandonment of work when there is high improbability of abandonment on the part of employee

SC Ruling:

Tatel was constructively, not actually, dismissed after having been placed on “floating status” for more than six ( 6) months, reckoned from October 24, 2009, the day following his removal from his last assignment with IPVG on October 23, 2009, and not on August 24, 2009 as erroneously held by the NLRC.

In Superstar Security Agency, Inc. and/or Col. Andrada v. NLRC, the Court ruled that placing an employee on temporary “off-detail” is not equivalent to dismissal provided that such temporary inactivity should continue only for a period of six (6) months.60 In security agency parlance, being placed “off-detail” or on “floating status” means “waiting to be posted.”

Relative thereto, constructive dismissal exists when an act of clear discrimination, insensibility, or disdain, on the part of the employer has become so unbearable as to leave an employee with no choice but to forego continued employment, or when there is cessation of work because continued employment is rendered impossible, unreasonable, or unlikely, as an offer involving a demotion in rank and a diminution in pay.

While it may be true that respondents summoned him back to work through the November 26, 2009 Memorandum, which Tatel acknowledged to have received on December 11, 2009, records are bereft of evidence to show that he was given another detail or assignment. As the “off-detail” period had already lasted for more than six ( 6) months, Tatel is therefore deemed to have been constructively dismissed.

Learn more about abandonment of work in Guide to Valid Dismissal of Employees Second Edition

To constitute abandonment, two elements must concur: (a) the failure to report for work or absence without valid or justifiable reason, and ( b) a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt acts. Mere absence is not sufficient. The employer has the burden of proof to show a deliberate and unjustified refusal of the employee to resume his employment without any intention of returning. Abandonment is incompatible with constructive dismissal.

The charge of abandonment in this case is belied by the high improbability of Tatel intentionally abandoning his work, taking into consideration his length of service and, concomitantly, his security of tenure with JLFP. No rational explanation exists as to why an employee who had worked for his employer for more than ten (10) years would just abandon his work and forego whatever benefits he may be entitled to as a consequence thereof.  As such, respondents failed to sufficiently establish a deliberate and unjustified refusal on the part of Tatel to resume his employment, which therefore leads to the logical conclusion that the latter had no such intention to abandon his work.

An employee who forthwith takes steps to protest his layoff cannot, as a general rule, be said to have abandoned his work, and the filing of the complaint is proof enough of his desire to return to work, thus negating any suggestion of abandonment.