Abandonment of work is one of the grounds for dismissal of employees. However, the employer should prove that the employee’s absence was unjustified and he had the intention of severing ties with employer.

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The Supreme Court held in the following case:

Protective Maximum Security Agency, Inc. vs. Celso E. Fuentes
G.R. No. 169303, February 11, 2015


Private respondent Celso E. Fuentes (Fuentes) was hired as a security guard by petitioner Protective sometime in November 1999. At the time of Fuentes’ employment, Protective assigned him to Picop Resources, Inc. He was posted to a security checkpoint designated as Post 33 in Upper New Visayas, Agusan del Sur.

A group of armed persons ransacked Post 33 and took five (5) M-16 rifles, three (3) carbine rifles, and one (1) Browning Automatic Rifle, all with live ammunition and magazines. Agency-issued uniforms and personal items were also taken. These armed persons inflicted violence upon Fuentes and the other security guards present at Post 33.

On the same day of the incident, Fuentes and his fellow security guards reported the raid to the Philippine National Police in Trento, Agusan del Sur.   When asked by the police, Fuentes reported that he and the other security guards assigned to Post 33 were accosted at gunpoint by the New People’s Army.

After its initial investigation, the Philippine National Police found reason to believe that Fuentes conspired and acted in consort with the New People’s Army. This was based on the two (2) affidavits executed by Lindo, Jr. and Cempron, who were both present in the raid. In their affidavits, Lindo, Jr. and Cempron stated that Fuentes should be prosecuted for criminal acts done.

Thereafter, the Philippine National Police filed the Complaint for robbery committed by a band against Fuentes, a certain Mario Cabatlao, and others. The Complaint stated that Fuentes was a “cohort of the NPA in the raid. Immediately upon the filing of the Complaint, Fuentes was detained. During his detention, he alleged that he was “mauled and tied up by the security officers of [Protective].” To preserve proof of these claims, Fuentes had pictures taken of his injuries while in custody and acquired a medical certificate detailing his injuries.

In the Order, Judge Particio Balite directed that Fuentes be transferred from the Mangagoy Police Sub-Station to Trento Municipal Jail in Trento, Agusan del Sur. In his return to this court order, however, Police Inspector Ernesto Escartin Sr. (Inspector Escartin) reported that Fuentes was no longer in the custody of this station and he was never detained there but requested that he be put to custody for fear of his life. He added that Fuentes left the station on July 28, 2000 at around 2:45 in the afternoon accompanied by his mother. The last known address of subject person is Sta. Josefa, Trento, Agusan del Sur.

The Office of the Provincial Prosecutor of Surigao del Sur issued the Resolution dismissing the Complaint against Fuentes. It found during preliminary investigation that there was no probable cause to warrant the filing of an Information against Fuentes.

On March 14, 2002, Fuentes filed the Complaint “for illegal dismissal, non-payment of salaries, overtime pay, premium pay for holiday and rest day, 13th month pay, service incentive leave and damages against [Protective], Picop [Resources, Inc.], Emie S. Dolina and Wilfredo Fuentes before [the National Labor Relations Commission] Regional Arbitration Branch XIII in Butuan City. He claims that right after the criminal complaint for robbery against him was dismissed, he demanded to return to work but he was refused entry by [a certain] Mr. [Regildo] Espinosa on the ground that [Fuentes] [was] a member of the NPA and that his position had already been filled up by another security guard.

LA Ruling:

Executive Labor Arbiter Rogelio P. Legaspi (Labor Arbiter Legaspi) rendered his Decision in favor of Protective. He found that complainant was not dismissed from the service much less illegally by the Fuentess.

The LA held that Fuentes’ claim that the company refused to admit him back to work after it was found out that he was innocent of the charges against him is not supported by relevant and/or material evidence.

NLRC Ruling:

On appeal, the National Labor Relations Commission reversed the Decision of Labor Arbiter Legaspi and found that Fuentes was illegally dismissed.

Protective filed a Petition for Certiorari before the Court of Appeals alleging grave abuse of discretion on the part of the National Labor Relations Commission.

CA Ruling:

The Court of Appeals dismissed the Petition. It held that Protective failed to discharge its burden to prove a just cause for dismissal.

The CA ruled that the whereabouts of Fuentes were available from official records. The claim of Protective that Fuentes “simply vanished” has no evidentiary support.   But even granting that Protective was ignorant of his whereabouts, still it does not suffice to establish abandonment of work.

Further, the Court of Appeals found that Fuentes should have been afforded his procedural due process rights.


Whether or not the decision of the LA is binding on the NLRC

Whether or not there is abandonment of work in this case

Whether or not computation of backwages for detained employee should be counted from the date of Resolution of the Prosecutor dismissing the case against him

Whether or not procedural due process is complied with if no notice is sent to employee due to lack of knowledge of his whereabouts

SC Ruling:

The SC denied the Petition.

Article 223 provides that the decision of the Labor Arbiter is final and executory, unless appealed to the National Labor Relations Commission within ten (10) calendar days by any or both of the parties. The Labor Code vests in the National Labor Relations Commission the authority to reverse the decision of the Labor Arbiter, provided that the appellant can prove the existence of one of the grounds in Article 223.

Abandonment constitutes a just cause for dismissal because “[t]he law in protecting the rights of the laborer, authorizes neither oppression nor self-destruction of the employer.” The employer cannot be compelled to maintain an employee who is remiss in fulfilling his duties to the employer, particularly the fundamental task of reporting to work.

In Agabon vs. National Labor Relations Commission, the Court discussed the concept of abandonment: Abandonment is the deliberate and unjustified refusal of an employee to resume his employment. It is a form of neglect of duty, hence, a just cause for termination of employment by the employer.   For a valid finding of abandonment, these two factors should be present: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever employer-employee relationship, with the second as the more determinative factor which is manifested by overt acts from which it may be deduced that the employees have no more intention to work. The intent to discontinue the employment must be shown by clear proof that it was deliberate and unjustified.

The burden to prove whether the employee abandoned his or her work rests on the employer. Thus, it is incumbent upon Protective to prove the two (2) elements of abandonment.   First, Protective must provide evidence that Fuentes failed to report to work for an unjustifiable reason.   Second, Protective must prove Fuentes’s overt acts showing a clear intention to sever his ties with Protective as his employer.

The Court found no abandonment in this case. Fuentes’ failure to return to work was justified because of his detention and its adverse effects. The SC held that the Court of Appeals found that Protective did not refute the allegation that Fuentes, while in the custody of the police, suffered physical violence in the hands of its employees. Thus, the Court of Appeals gave credence to the report submitted by Inspector Escartin, which stated that Fuentes was “so traumatized that he actually asked to remain in the custody of the police because he feared for his life.” The Court of Appeals further found that Fuentes experienced intense fear, “manifest[ed] by the fact that he left the custody of the police only when his mother accompanied him.”

Thus, the intervening period when Fuentes failed to report for work, from Fuentes’s prison release to the time he actually reported for work, was justified.   Since there was a justifiable reason for Fuentes’s absence, the first element of abandonment was not established.

Fuentes reported for work after August 15, 2001, when the criminal Complaint against him was dropped. Further, Protective refused to allow him to resume his employment because the company believed that he was a member of the New People’s Army and had already hired a replacement.   Fuentes’ act of reporting for work after being cleared of the charges against him showed that he had no intention to sever ties with his employer. He attempted to return to work after the dismissal of the Complaint so that Protective would not have any justifiable reason to deny his request to resume his employment.

Applying the doctrine of “no work, no pay,” the computation of backwages should only begin from the date of the filing of the Complaint. In Republic vs. Pacheo it was held that if there is no work performed by the employee there can be no wage or pay, unless of course the laborer was able, willing and ready to work but was illegally locked out, dismissed or suspended. The “No work, no pay” principle contemplates a “no work” situation where the employees voluntarily absent themselves.

In this case, the date of Protective’s refusal to allow Fuentes’s return to work was not established in the findings of fact of the labor tribunals and the Court of Appeals.   Protective alleged that the filing of the Complaint took place six (6) months after the alleged date that Fuentes’s request to return to work was refused. The date when the incident took place was not specified.

Absent proof of the actual date that Fuentes first reported for work and was refused by Protective, the date of the filing of the Complaint should serve as the basis from which the computation of backwages should begin.

Fuentes’ right to procedural due process was not observed.   The employer must always observe the employee’s right to due process. The two-notice requirement was not followed. Protective sought to excuse itself by claiming that there was no address where the proper notice could have been served. However, Protective admitted before the Court of Appeals that “Fuentes’s last known address was given to the investigating court by Police Inspector Escartin.

There was no attempt from Protective to serve the proper notice on Fuentes at the address contained in its employment records. Fuentes was replaced without being given an opportunity to explain his absence.









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