ABANDONMENT DOES NOT EXIST WHERE THE EMPLOYEE LEFT THE PREMISES TO ALLOW ANIMOSITY WITH EMPLOYER TO SUBSIDE AND LATER INSISTED TO REPORT TO WORK

Abandonment is a matter of intention. The employer has to prove the employee unjustifiably refused to report to work and had not intention of returning to work.

Thus, the Supreme Court held in the following case:

Litex Glass and Aluminum Supply and/or Ronald Ong-Sitco
G.R. No. 198465, April 22, 2015

Facts:

Dominador Sanchez alleged that since 1994, he was employed as driver and aluminum installer in several companies owned and managed by Ong-Sitco, the last of which was with Litex.

He said that he has no record of any work related offense for which he has been reprimanded, suspended or warned and that for the past 15 years, he has been diligently serving his employer. He was thus surprised when on December 23, 2008, Ong-Sitco and his wife scolded and threw insulting words and invectives upon him and then ordered him to go on indefinite leave.

Due to the incident, he decided to just leave the work premises with the hope that the animosity between him and his employer would eventually subside. On December 28, 2008, he went back to the office to talk to Ong-Sitco, but the latter just ignored him. He again returned on January 2, 2009 to purportedly discuss his employment status, but Ong-Sitco was again unwilling to talk to him. The same thing happened after he went back a week later.

Thus, Sanchez filed a case for illegal dismissal and non-payment of benefits against Litex Glass, et al..

Subsequent to the filing of the said complaint, Sanchez received two memorandum-letters from Litex Glass, et al.. The first one was dated January 7, 2009 but mailed on February 23, 2009, and received by Sanchez on February 26, 2009. It contained a directive for Sanchez to report for work and to explain his continued absence from December 22, 2008 to January 7, 2009, after he was allegedly given verbal warning for committing the following infractions: 1) going home early without justification on December 3, 2008; 2) exhibiting erratic behavior and threatening to file a case against Litex Glass, et al. after being summoned to explain his unjustified leave from work on December 9, 2008; and, 3) unauthorized use of company vehicle for personal benefit on December 20, 2008.

The second memorandum-letter dated January 22, 2009 which was sent on March 10, 2009, and received by Sanchez on March 22, 2009, contained a warning that his refusal to follow the earlier directive to report and explain his continued absence within 24 hours would constitute abandonment of work on his part.

Sanchez’s legal counsel, Atty. Osias M. Merioles, Jr., on the other hand, wrote Litex Glass, et al. informing them that his client would not report for work as the first memorandum-letter was a mere afterthought to cover up their act of illegal termination.

Litex Glass, et al., on the other hand, negated all of Sanchez’s claims. They denied having employed him in 1994 since, according to them, Litex was only registered on April 5, 2002. Litex Glass, et al. also denied having dismissed Sanchez. They averred that it was Sanchez who abandoned his job by not reporting for work. Litex Glass, et al. then presented their own version of the facts.

They averred that based on company records, the January 7, 2009 memorandum-letter was sent on January 8, 2009 and not on February 23, 2009 to Sanchez’s last known address. The same, however, was returned to sender. On the other hand, the January 22, 2009 memorandum-letter was sent to Sanchez on January 23, 2009 and not on March 10, 2009. These memorandum-letters are not termination letters as claimed by Sanchez, but notices for him to report for work and to explain several infractions that he committed on December 3, 9 and 20, 2009.   But instead of complying, Sanchez refused to go to work as evidenced by his counsel’s letter.

To Litex Glass, et al., this intimated Sanchez’s lack of interest to work. Litex Glass, et al. further averred that they have no reason to terminate Sanchez especially since the latter has pending obligations with the company.

LA Ruling:

The Labor Arbiter declared Sanchez to have been illegally dismissed by Litex Glass, et al.. This was after he found Sanchez’s version of facts more credible. He observed that the original copies of the registry receipts which were attached to the envelopes of the January 7 and January 22, 2009 memorandum-letters show that they were mailed only on February 23, 2009 and March 10, 2009, respectively, or after the filing of the complaint for illegal dismissal on February 18, 2009.

Thus, said memorandum-letters were made and sent by Litex Glass, et al. “to evade the consequences of illegal termination by showing seeming compliance with the notice requirement and likewise to demonstrate the absence of dismissal.” Moreover, the Labor Arbiter pointed out that the alleged infractions imputed against Sanchez are not sufficient grounds to warrant his dismissal.

For having been illegally dismissed, Sanchez was awarded separation pay computed from the date of hiring in 1994 up to the finality of the Decision, and full backwages computed from the date of dismissal also up to the finality of the Decision. He was also granted his claims for holiday pay, service incentive leave pay and attorney’s fees.

NLRC Ruling:

The NLRC dismissed the appeal and affirmed the Labor Arbiter’s judgment. It: (1) ruled that Sanchez cannot be said to have abandoned his job as there is no showing of an intention to resign or forego with his employment; (2) upheld the grant of separation pay and other monetary awards; and, (3) sustained the Labor Arbiter in not deducting from Sanchez’s monetary awards his alleged obligations to Litex Glass, et al. on the ground that the said liabilities were not fully substantiated and that they arose from a different contractual relation.

Litex Glass, et al. filed a motion for reconsideration reiterating their previous arguments and adding that the award of backwages should be computed only until March 20, 2009 when Sanchez manifested his refusal to report for work. This motion was, however, denied by the NLRC.

Litex Glass, et al.’s next recourse was a Petition for Certiorari with the CA.

CA Ruling:

CA dismissed the Petition for Certiorari and affirmed the afore-mentioned NLRC Resolutions.

It agreed with the findings of the labor tribunals that: (1) Sanchez was dismissed without valid grounds; (2) he is not guilty of abandonment of work as he immediately filed a case after his efforts to return to work proved futile; (3) the memorandum-letters were mere afterthought as to give semblance of validity to the dismissal, they having been sent after the complaint was filed; (4) there was already antagonism between the parties that warranted the award of separation pay; (5) Sanchez was under the employ of Ong-Sitco’s several companies for the past 15 years; (6) the alleged accountabilities of Sanchez were not fully substantiated and cannot be off-set against his monetary awards since they sprung from a different contractual relation; (7) Sanchez is entitled to attorney’s fees since he was constrained to litigate and incur expenses to protect his interests; and, (8) the award of backwages should be computed from the date of dismissal on December 23, 2008 until finality of the judgment and not only until March 20, 2009 because Sanchez’s refusal to return to work was justified, it being predicated on the reasonable belief that compliance with Litex Glass, et al.’s memorandum-letters would only serve the latter’s apparent purpose of evading their responsibility in illegally terminating him.

Litex Glass, et al. filed a Motion for Reconsideration which was likewise denied by the CA.

Issue/s:

Whether or not failure of the employer to warn employee of his continued absence or to issue notice to report for work militates against the defense of abandonment of work

Whether or not the employee who left the employer premises after an altercation to await the situation to cool down and later repeatedly asked to return to work is deemed to have abandoned his work

Whether or not separation pay can be awarded in lieu of reinstatement despite the fact that is not being prayed for in the complaint

Whether or not when there is conflicting dates of hire the employee has the burden to prove the claim of earlier hiring date

SC Ruling:

The SC partially granted the petition.

On the issue of abandonment, the SC held that aside from the fact that Ong-Sitco did not dispute Sanchez’s claim that the two of them had an altercation, the former also admitted that the latter subsequently went back to his office to clear his employment status but was ignored by him. After two similar attempts from Sanchez, Ong-Sitco still refused to entertain Sanchez’s requests and queries regarding his employment status.

It was only in the two memorandum-letters which were likewise unanimously found by the labor tribunals and the CA to have been sent to Sanchez after the filing of the complaint, that Litex Glass, et al. warned Sanchez of his continued absence and directed him to report for work to explain said absences and answer the infractions he allegedly committed.

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The SC was not convinced that Sanchez abandoned his work. The Court held that to constitute abandonment, it is essential that an employee failed to report for work without any valid and justifiable reason and that he had a clear intention to sever the employment relationship by some overt act.

Mere failure to report for work after notice to return does not constitute abandonment. Sanchez reported back to Ong-Sitco several times to ask about his employment status but was not entertained. While Ong-Sitco did not deny this, he never bothered to explain why during these instances, he did not warn Sanchez about his continued absence or ask him to return to work, if only to bolster the claim that he was not dismissed.

Instead, Ong-Sitco just ignored him and this, under the circumstances, only shows his intention not to retain him. This is further bolstered by the fact, as shown by the records, that the two memorandum-letters were sent to Sanchez after he filed a complaint against Litex Glass, et al. Clearly, Sanchez cannot be said to have unjustifiably refused to return to work. He cannot be faulted from reasonably concluding that the memorandum-letters were merely made in order to give semblance of validity to his termination.

In addition and as aptly observed by the CA, Sanchez’s immediate filing of the complaint is proof of his desire to return to work. It has been held that the filing of a complaint negates any intention of abandoning foregoing employment.

The SC affirmed the CA’s finding that Sanchez was illegally dismissed.

On the issue on separation pay, the SC held agreed with the CA when it held that the Labor Arbiter’s award of separation pay is an equitable disposition. Although Litex Glass, et al. correctly pointed out that separation pay was not prayed for in the complaint, Sanchez is deemed to have accepted the separation pay awarded by the Labor Arbiter since he never questioned the same.

The separation pay may be awarded if the employee decides not to be reinstated. According to the Court, the altercation that transpired between Sanchez and Ong-Sitco is enough basis to conclude that there exists an apparent strained relationship between them. This strained relationship is also very evident from Litex Glass, et al.’s refusal to retain Sanchez under their employ.

While Litex Glass, et al. contend that their act of sending Sanchez memorandum-letters directing him to report for work exhibits their willingness to retain him, the same hardly convinced the SC.

The SC further held that the said memorandum letters were mere afterthought made only to cover-up Litex Glass, et al.’s act of illegally dismissing Sanchez. For obvious reasons, they cannot be viewed as a sign of Litex Glass, et al.’s sincere willingness to reinstate Sanchez. Further, even if the issue of strained relations was not raised in the proceedings before the Labor Arbiter, it was nonetheless discussed and argued by the parties in their respective pleadings submitted to the NLRC when the case was brought on appeal. Clearly, there is sufficient basis for the grant of separation pay in lieu of reinstatement in this case.

The labor tribunals and the CA erred in reckoning the employment of Sanchez from 1994 for the purpose of computing his separation pay. In affirming the decision of the NLRC and the Labor Arbiter, the CA relied on the SSS Certification and gave weight to Sanchez’s claim that Ong-Sitco has been remitting his SSS contributions since 1996.

The SC, citing the case of L.C. Ordoñez Construction vs. Nicdao, the Court reiterated the basic rule on evidence that the burden of proof lies on the party who makes the allegation and must prove his claim by competent evidence. There, respondent Nicdao was claiming entitlement to separation pay and other employee benefits computed from 1985, the date of her alleged employment. The Court, however, denied her claim as she made inconsistent statements in her pleadings concerning her date of employment.

In this case, it is incumbent upon Sanchez to prove that he was in the employ of Litex Glass, et al. since 1994. Unfortunately, he failed to discharge this onus. The SSS Certification submitted merely states that his coverage under the SSS started in 1996 and that his latest employer as of the date of the issuance of the certification is Ong-Sitco. As correctly argued by Litex Glass, et al., there is nothing in the said certification which shows that Sanchez was in the employ of Litex Glass, et al. since 1994 or even since 1996. Neither is there any other competent evidence presented to substantiate the claim that he worked in several companies owned and managed by Ong-Sitco since 1994.

Since the only persuasive evidence on record regarding Sanchez’s date of employment with Litex Glass, et al. is the latter’s admission that they employed him in April 2002, the date Litex was registered with the Department of Trade and Industry, Sanchez is deemed employed by Litex Glass, et al. beginning on such date. Hence, the reckoning point for the computation of the separation pay in lieu of reinstatement awarded to Sanchez shall be the year 2002 and not 1994.