ABANDONMENT OF WORK DOES NOT ARISE IF THE EMPLOYEE IS ON SABBATICAL LEAVE PERMITTED BY COMPANY PRACTICE

Abandonment does not arise on mere failure to report for work.

Thus, the SC held in the June 6, 2018 labor case, as follows:

Maria De Leon Transportation, Inc. vs. Daniel M. Macuray
G.R. No. 214940, June 6, 2018

Abandonment of work; There is no abandonment of work if the employee is on sabbatical leave permitted per company practice; Sabbatical leave; Authority to dismiss; A bus dispatcher has no authority to dismiss a bus driver; Retirement; An employee who reached retirement age during sabbatical leave is entitled to retirement benefit

Facts:

Respondent Daniel Macuray (Macuray) alleged that in April 1991 he was employed as a bus driver of MDLTI Maria De Leon Transportation, Inc. (MDLTI), a company engaged in paid public transportation. He plied the Laoag-Manila-Laoag route and received a monthly pay/commission of P20,000.00. He claimed that in November 2009, MDLTI’s dispatcher did not assign a bus to him, for no apparent reason.

Further, for a period of one month, Macuray allegedly continually returned to follow up if a bus had already been assigned to him. When he returned to the company premises, the bus dispatcher informed him that he was already considered AWOL (absent without leave), without giving any reason therefor. He allegedly went back to follow up his status for about six months in 2010, but nobody attended to him. He was not given any notice or explanation regarding his employment status and felt betrayed by the MDLTI, after having served the latter for 18 years. He considered himself illegally dismissed which during that time, he was already 62 years old, and received no benefits for his service.

Finally, Macuray claimed that he was being charged for the cost of gasoline for the bus he would drive and that MDLTI owed him three months’ salary for the year 2009. Thus, he filed a complaint for illegal dismissal against MDLTI and prayed that he be awarded backwages, separation pay, retirement pay, 13^th month pay, damages, attorney’s fees, and costs of suit.

MDLTI claimed that Macuray was hired on commission basis, on a “no work, no pay” and “per travel, per trip” basis. He Macuray was paid an average of P10,000.00 commission per month without salary. Contrary to his claim of illegal dismissal, he permanently abandoned his employment effective March 31, 2009, after he failed to report for work.

MDLTI received information later on that Macuray was already engaged in driving his family truck and was seen doing so at public roads and highways and that his claim of illegal dismissal was not true, as there was no dismissal or termination of his services, and no instructions to do so were given. The bus dispatcher from whom Macuray inquired about his status had no power to terminate or declare him AWOL. He had not actually approached management to inquire about his employment status, even though he and all the other employees knew that the Assistant Manager, Corporate Secretary, and Director of the bus company, Dirnaya, resided with his family within the bus company’s station and compound in San Nicolas, Ilocos Norte.

Further, Macuray’s witnesses allegedly had an axe to grind against MDLTI, which accounts for their false testimonies. Based on Macuray’s Complaint, he claimed to have been illegally dismissed in January, 2009, which was contrary to the documentary evidence which showed that he continued to work until March, 2009, after which he completely abandoned his employment. Per Joint Affidavit of MDLTI’s bus dispatchers, it is not true that Macuray ever made inquiries and follow-ups about his employment until mid-2010. There was no illegal dismissal, and thus Macuray was not entitled to his monetary claims. Macuray never refuted the claim that he abandoned his employment with MDLTI because he took on a new job as driver for his family’s trucking business and was seen doing so in public roads and highways.

It was common practice for bus drivers of the MDLTI to simply stop reporting for work for short periods of time, or even years, after which they would return and ask to be allowed to drive MDLTI’s buses once more, which management allowed after the absentee drivers gave satisfactory and reasonable explanations for their absences. This practice was impliedly sanctioned in order to give the drivers the opportunity to take time off from the stress and boredom of driving on long trips. Macuray’s allegations were not true, particularly his claim that he was told by a bus dispatcher that he was considered AWOL, since he refused to divulge the identity of the bus dispatcher who gave such information to him.

There was no truth to Macuray’s allegations that the cost of gasoline for every bus trip was charged to him, as it was shouldered by the MDLTI. MDLTI prayed for the dismissal of the case.

LA Ruling:

The Labor Arbiter (LA) rendered a decision dismissing the case for lack of merit.

The LA held that the complainant never returned back to work after 31 March 2009. An informal voluntary termination is recognized under the law as an authorized ground for dismissal.

In such case compliance with the two (2) notice requirement of due process is not necessary. When this happens the employee is not entitled to separation pay and backwages. The dismissal is not illegal. Hence the LA denied the claims for separation pay, backwages and damages.

Macuray appealed before the NLRC.

NLRC Ruling:

The NLRC modified the LA judgment by awarding in favor of Macuray the amount of PS0,000.00 as financial assistance.

Citing the SC Decision in the consolidated cases of Leonardo vs. NLRC the NLRC held that the SC in said cases ordered the reinstatement sans backwages of the employee who was declared neither to have abandoned his job nor was he constructively dismissed. In a case where the employee’s failure to work was occasioned neither by his abandonment nor by a termination, the burden of economic loss is not rightfully shifted to the employer. Each party must bear his own loss.

The NLRC found that reinstatement is no longer be possible. It also did not find proper to award separation pay because Macuray was not dismissed by MDLTI. In cases where there was no dismissal. at all, separation pay should not be awarded.

The NLRC modified the LA decision by awarding financial assistance in the amount of P50,000.00. The NLRC also denied the MR. Macuray filed a petition for certiorari before the CA.

CA Ruling:

The CA found the petition meritorious.

The CA held that the Labor Arbiter’s findings that there was an informal voluntary termination has no basis. Based on the age of Macuray, he was 58 years of age in November of 2009 when he was no longer assigned any bus.

Nearing his retirement, it was irrational that Macuray would suddenly opt for an informal voluntary termination. Thus, the NLRC’s appreciation of facts is more in keeping with logic as it held that there was no abandonment. Macuray kept going back to the MDLTI to check whether or not there would already be a bus assigned to him. There being no bad records or previous transgressions committed by Macuray against MDLTI, or any third party in relation to his job during his eighteen (18) years of working for MDLTI, there was no rhyme nor reason why he would suddenly not be assigned a bus to drive and no reason why he would suddenly voluntarily stop working while nearing his retirement.

The CA did not find reinstatement possible as well but found him entitled to separation pay.

MDLTI filed a motion for reconsideration, but the CA denied the same. Hence, the instant Petition.

Issue/s:

Whether or not the bus dispatcher who told the bus driver that he was AWOL amounted to dismissal by a bus company

Whether or not a bus driver who, pursuant to company practice, took breaks from work in order to afford the opportunity to recover from the stresses of driving the same long and monotonous bus routes by accepting jobs elsewhere can be deemed to have abandoned his work

Whether or not an employee who went on sabbatical leave and during said period reached retirement age, is entitled to retirement benefit

SC Ruling:

The SC did not find dismissal in the case.

The SC believed MDLTI’s allegations that Macuray left his work as bus driver to work for his family’s trucking business. There is no truth to the allegation that Macuray was dismissed, actually or constructively.

Rules on employees dismissal due to AWOL  or Abandonment of Work: Guide to Valid Dismissal of Employees Second Edition

While Macuray claims that the dispatcher informed him that he was AWOL the SC held that a mere bus dispatcher does not possess the power to fire him from work-this is a prerogative belonging to management. Macuray did not show that he met with management to inquire on his status.

On the other hand, it appears that the Assistant Manager, Corporate Secretary, and Director of the bus company, Elias Dimaya, resided with his family within the bus company’s station and compound in San Nicolas, Ilocos Norte. Having worked for the bus company for 18 years, Macuray should have known this fact, and he could have visited with Elias Dimaya at anytime, if his employment was so important that it meant his own survival and that of his family. Apparently, however, it would appear that this was not the case, for the simple reason that Macuray had found employment elsewhere.

Thus, Macuray’s failure to show that his follow-ups were properly directed at management bolsters MDLTI’s claim that no follow-ups were made by him. The logical explanation for this is that he found employment elsewhere and thus opted to stop reporting for work, as was the practice of other bus drivers working for MDLTI.

The SC held further, that even assuming that Macuray was indeed told by the bus dispatcher that he was AWOL, this was not tantamount to dismissal, actual or constructive. An ordinary bus dispatcher has no power to dismiss an employee. In a typical bus company, a driver might even be of more significance than an ordinary dispatcher. Bus drivers are a more valuable resource than a dispatcher; without the former, the latter is useless.

Without a driver, there could be no bus to dispatch or trip to schedule. It cannot therefore be said that an ordinary dispatcher is superior to a bus driver. At most, they are equal in rank. The fact that Macuray made no sincere effort to meet with the management of the bus company gives credence to MDLTI’s allegation that he was never fired from work.

Further, the SC held that it cannot be said that Macuray abandoned his employment. MDLTI itself admitted that it sanctioned the practice of allowing its drivers to take breaks from work in order to afford them the opportunity to recover from the stresses of driving the same long and monotonous bus routes by accepting jobs elsewhere, as some form of sabbatical or vacation, without losing productivity and income and to safeguard the interests of the company and its patrons, as well as to avoid fatal accidents were the drivers to be suffered to work under continuous stressful conditions occasioned by driving on the same monotonous routes day in and day out.

The Labor Code of the Philippines 2018 Edition (Re-numbered and updated)

Macuray availed of MDLTI’s company practice and unwritten policy -of allowing its bus drivers to take needed breaks or sabbaticals to enable them to recover from the monotony of driving the same route for long periods -and obtained work elsewhere. It appears that what matters to Macuray is that when he did this, he was already approaching retirement age -he was 58 years old, when he took a break from being a bus driver-and when he filed the labor case he was already 60.

Thus, since Macuray was not dismissed from work, MDLTI may not be held liable for his (Macuray’s) monetary claims, except those that were actually owing to him by way of unpaid salary/commission, and retirement benefits, which are due to him for the reason that he reached the age of retirement while under MDLTI’s employ.

As far as MDLTI is concerned, he merely went on a company-sanctioned sabbatical. It just so happened that during this sabbatical, he reached the retirement age of 60. By this time, he is already 67 years old. By filing the labor case, he may have pre-empted the payment of his retirement benefits. But it is a clear demand for retirement benefits nonetheless.

Understandably, Macuray may have already expected that he would not be paid retirement benefits since he stopped reporting for work in 2009, when he took his sabbatical. For him, such move might have been construed as a resignation or abandonment by his employer, the MDLTI, and rightly so -for this is precisely MDLTI’s defense in this case. Thus, the SC found Macuray entitled to retirement benefits.

Retirement compensation equivalent to one-month’s salary for every year of service is more equitable and just than the CA’s pronouncement of one-half month’s salary per year of service, which the Court finds insufficient. This is considering that MDLTI has been paying its drivers commission equivalent to less than the minimum wage for the latter’s work, and in Macuray’s case, it has delayed payment of the latter’s compensation for three months.

On the other hand, MDLTI’s lax policies regarding the coming and going of its drivers, as well as the fact that Macuray’s layovers are considerable -it appears that throughout his employment, Macuray spends a good number of days each month not driving for MDLTI, which thus allows him to accept other work outside -makes up for deficiencies in the parties’ compensation arrangement.