Abandonment of work can fall as gross and habitual neglect of duties under the Labor Code, which is a just cause for termination of employment. There must be concurrence of two elements. First, there should be a failure of the employee to report for work without a valid or justifiable reason; and, second, there should be a showing that the employee intended to sever the employer-employee relationship, the second element being the more determinative factor as manifested by overt acts.
Sheryll R. Cabañas vs. Abelardo G. Luzano Law Office/Abelardo G. Luzano
G.R. No. 225803, July 2, 2018
Abandonment of work; An employee who turned over the files cannot be deemed to have abandoned the job; Separation pay in lieu of reinstatement; Dismissal; An employee who was told by an authorized person that a certain day was her last day of work and that her unpaid salary would just be deposited in her ATM is actually dismissed; Attorney’s fees; Complainant who engaged the PAO is entitled to attorney’s fees
Respondent Abelardo G. Luzano Law Office is a service provider for the Bank of the Philippine Islands, Banco de Oro, Rizal Commercial Banking Corporation and Penned by Unionbank of the Philippines in the collection of delinquent credit cards and personal loan accounts.
Petitioner Sheryll R. Cabañas (Cabañas) stated that she was employed as an Administrative Secretary for Abelardo G. Luzano Law Office. She was tasked to act as receptionist/lawyer’s staff, monitor petty cash disbursements and office employees, make demand letters and do other clerical tasks. Her performance was satisfactory as she was employed later as a regular employee per her employment contract.
In the course of employment, Cabañas received a final warning in a Memorandum dated June 18, 2013. The memorandum notified her that her performance as Administrative Secretary failed to meet the performance requirements of the position due to the following: (1) erroneous entry of data for the liquidation of petty cash; (2) erroneous computation of accounts for mailing; (3) erroneous breakdown of expenses for cash payments; (4) instructions from colleagues are not being strictly followed; and (5) not strict in releasing gas allowance for skiptracers. Cabañas was warned that a similar violation in the future would mean termination of her employment.
Cabañas said that the office manager, Mary Ann Detera, began meddling with her office equipment. Detera would also lose her requests relating to the demand letters that she prepares. She was even asked to cover-up irregularities.
Cabañas stated that as she was in charge of the petty cash disbursements, which was used to defray the transport expenses of skiptracers or messengers, she would ask for receipts for the disbursements of Jomari Delos Santos, a messenger assigned to Detera. Detera wanted her to cover-up any irregularity which may have been committed by her messenger and not report the same to Mrs. Ivy Theresa Buenaventura, the General Manager, who was also the daughter of Atty. Abelardo G. Luzano (Atty. Luzano). Cabañas refused to do Detera’s wishes. Thus, Detera’s angry actuation began toward Cabañas.
Cabañas alleged that Detera would fail to report Mr. Delos Santos’ absences, which placed Cabañas in a delicate situation as Mrs. Buenaventura would ask her regarding Mr. Delos Santos’ absences. Mr. Delos Santos would also ask Cabañas for transportation expenses, but he would take three to four days to liquidate the said expenses. Detera would also belatedly submit receipts for liquidating the petty cash disbursements. It was Cabañas who bore the ire of her superiors for the delay. Cabañas said that she endured this ordeal as she wanted to remain employed.
Cabañas stated that she was summoned to the office of Atty. Luzano. Atty. Luzano and his daughter and General Manager, Mrs. Buenaventura, asked her to resign and execute a resignation letter, but she did not do so. Cabañas was on vacation leave, her officemate Josephine Santos told her that Detera went through her (Cabañas’) box containing letters she had prepared.
Cabañas received another Memorandum of even date with the subject: “Notice of Termination,” alleging her commission of the following infractions: (1) erroneous computation of accounts for mailing; (2) erroneous encoding of petty cash liquidation report; (3) erroneous breakdown of expenses for cash payments; ( 4) instructions from superiors and collectors are not being strictly followed; (5) careless releasing of gas allowance for skiptracers; (6) erroneous filing of court orders to the wrong case folders; (7) erroneous photocopying of a different legal document; (8) reproduction of excessive copies of documents for case filing; (9) wastage of company resources such as paper and ink due to failure to request for mailing expenses for demand letters printed in August 2013; and (10) erroneous listing for mailing of a new batch of accounts, which were not included in the actual count of the printed demand letters on September 18, 2013.
Cabañas was given up to the close of office hours of the next day to submit her explanation why her employment will not be terminated due to gross incompetence and negligence. According to Cabañas, she verbally explained her side to Atty. Luzano and informed him that Detera was going through her work. Atty. Luzano advised her to prepare an incident report. At 6:00 p.m. of the same day, Cabañas stated that she was summoned by Atty. Luzano. He asked her to execute a resignation letter, but Cabañas refused to do so.
The next day, Cabañas submitted her explanation letter to the charges against her contained in the Memorandum. She spoke with Atty. Luzano and inquired why she was no longer given any work and she was not informed that she already had a replacement. Atty. Luzano informed her that the same date was her last day of work and that her salary would just be deposited in her account. However, no salary was deposited in her ATM account.
Cabañas filed with the NLRC a complaint for illegal dismissal and the payment of her monetary claims against Abelardo, et al. Abelardo G. Luzano Law Office and its manager, Mary Ann Z. Detera (collectively, Abelardo, et al.).
Abelardo, et al. contended that Cabañas was not terminated from her employment, but she abandoned her work. Abelardo, et al. stated that in the early part of 2013, Cabañas’ job performance deteriorated. Thus, she was repeatedly admonished to be careful and avoid repetition of her errors in the liquidation of petty cash, computation of accounts for mailing, and in the breakdown of cash payments. She was admonished for repeatedly failing to follow the instructions of her superiors, doing things incorrectly, and being very lax and incorrectly releasing amounts for gas allowances of the company’s motorized skiptracers as well as the unintelligible filing of papers and folders of accounts assigned to her.
Cabañas’ job performance did not improve despite repeated warnings; thus, Cabañas was given a final warning in a Memorandum dated June 18, 2013 that a similar violation in the future would mean termination of her employment. Since the final warning did not work, a Memorandum dated September 19, 2013 was issued, requiring Cabañas to explain why her employment will not be terminated due to gross incompetence and negligence.
Cabañas submitted her written explanation on the charges. The following Monday, September 23, 2013, she stopped reporting for work. Since she abandoned her work and went on absence without
Labor Arbiter (LA) Marcial Galahad T. Makasiar held that Cabañas was illegally dismissed and ordered Abelardo, et al. to pay her backwages, separation pay, service incentive leave pay and 13th month pay.
The Labor Arbiter held that in termination cases, the employer has the onus probandi to prove, by substantial evidence, that the dismissal of an employee is due to a just cause. Failure to discharge this burden would be tantamount to an unjustified and illegal dismissal. He cited Karns International, Inc., et al. v. NLRC, et al., which held that abandonment of work does not per se sever the employer-employee relationship. It is merely a form of neglect of duty, which is in tum a just cause for termination of employment.
The operative act that will ultimately put an end to this relationship is the dismissal of the employee after complying with the procedure prescribed by law. In this case, Cabañas was served a memorandum-notice regarding her performance. However, in regard to the ground of abandonment, neither notice to explain nor notice of termination was issued. Moreover, Cabañas’ commencement of an action for illegal dismissal was proof of her desire to return to work, negating abandonment of her work.
Abelardo, et al. appealed the Decision of the Labor Arbiter to the NLRC.
The NLRC affirmed the Decision of the Labor Arbiter and dismissed the appeal.
NLRC considered the Memorandum dated September 19, 2013, with the subject: “Notice of Termination,” as a termination letter. It held that Cabañas was terminated on the basis of her poor and unsatisfactory performance particularly in her quality of work and job knowledge. However, the NLRC found that the acts alleged in the memorandum to have been committed by Cabañas have not been proven nor substantiated by Abelardo, et al. for these reasons: (1) Abelardo, et al. have not shown any company policy which provides that the commission of any of the alleged acts shall be dealt with the penalty of dismissal from employment to bolster their claim against Cabañas; and (2) other than Abelardo, et al.’s self-serving statements that Cabañas showed gross incompetence and negligence in the performance of her tasks, no convincing proof was offered to substantiate Cabañas’ alleged negligence or incompetence.
The NLRC held that had Cabañas exhibited gross incompetence and negligence in her work, Abelardo, et al. should not have extended her employment upon completion of her probationary contract of employment. Moreover, the NLRC stated that while Abelardo, et al. argued that in the early part of 2013, they repeatedly admonished and verbally warned Cabañas of her poor performance, there was no single evidence presented to show the particular errors allegedly committed by her. Further, the NLRC did not agree with Abelardo, et al.’ contention that Cabañas was not dismissed from employment, but she voluntarily severed her employment through abandonment.
Abelardo, et al.’s motion for reconsideration was denied for lack of merit by the NLRC.
Abelardo, et al. filed a petition for certiorari with the Court of Appeals, questioning whether the NLRC committed grave abuse of discretion amounting to lack or excess of jurisdiction in finding that Cabañas was illegally dismissed and, therefore, entitled to her monetary claims.
The Court of Appeals (CA) rendered a Decision in favor of Abelardo, et al.
The CA held that Cabañas was not illegally dismissed, but she abandoned her job. The appellate court stated that to constitute abandonment, two elements must be present: (1) the employee must have failed to report for work or must have been absent without valid or justifiable reason; and (2) there must have been a clear intention on the part of the employee to sever the employer-employee relationship manifested by some overt act. It found the presence of the elements of abandonment in this case.
The CA stated that although the subject of the Memorandum dated September 19, 2013 was “Notice of Termination,” the memorandum merely asked Cabañas to explain why she should not be dismissed from employment. The next day Cabañas submitted a handwritten letter in response to the memorandum and she also made a handwritten document wherein she turned over the office files in her custody in favor of Antoinette Castro.
Thereafter, she failed to report for work as evidenced by her payslip for the month of September. Based on the foregoing, the Court of Appeals concluded that Cabañas failed to report for work without valid or justifiable reason. It stressed that Abelardo, et al. did not ask Cabañas to leave or prevent her from working in the law firm. Although Cabañas alleged that Atty. Luzano and Mrs. Buenaventura asked her to resign, such allegation ran counter to her statement in her handwritten letter dated September 20, 2013, wherein she thanked the former for treating her well. If indeed she was asked to resign, she should have stated the same in her letter or at the very least, she should not have thanked them.
Anent the second element of abandonment, the CA held that Cabañas showed her clear intent to sever the employer-employee relationship when she voluntarily and personally turned over the files in her custody in favor of Antoinette Castro, which is an overt act manifesting her intent to leave her post in the law firm.
The CA cited the case of Jo vs. National Labor Relations Commission to support its ruling that although Cabañas instituted an illegal dismissal case immediately after her alleged termination, she, nonetheless, belies her claim of illegal dismissal when she prayed for separation pay, not reinstatement. Hence, the petition for review on certiorari before the SC.
Whether or not abandonment of work exists when the employee turned over all the files
Whether or not an employee who was told by a person authorized to dismiss that a certain day was her last day of work and that her unpaid salary would just be deposited in her ATM amounts to dismissal
Whether or not the prayer for separation pay belies the claim of illegal dismissal and supports the contention that the employee abandoned the job
Whether or not a complainant who engaged the services of a public attorney’s office is entitled to attorney’s fees
The SC granted the petition.
Cabañas contends that she was terminated by Abelardo, et al. since she was not only asked to resign by respondent Atty. Luzano, which she refused to do, but on September 20, 2013, she was asked to tum over all the files assigned to her, and when she asked Atty. Luzano why she was not given any work, she was told that it was her last day of work and that her unpaid salary would just be deposited in her ATM account.
The records show the document evidencing Cabañas’ turnover of all the files assigned to her to Abelardo, et al.’s Head Administrative Assistant Antoinette L. Castro, who acknowledged receipt of the turnover by affixing her signature on the document. In employment parlance, the turnover of work by an employee signifies severance of employment. In addition, Cabañas narrated that when she asked respondent Atty. Luzano, the owner of respondent Law Office, why she was not given any work, Atty. Luzano told her that it was her last day of work and that her unpaid salary would just be deposited in her ATM, which is an overt act of dismissal by Cabañas’ employer who had the authority to dismiss Cabañas.
Learn more about abandonment of work and employee dismissal from the book Guide to Valid Dismissal of Employees Second Edition
In effect, according to the SC Cabañas was terminated on that day, September 20, 2013. To the SC, this would explain why Cabañas no longer reported to work the next working day, September 23, 2013, and she filed a complaint for illegal dismissal on October 1, 2013.
Cabañas has proven that she was dismissed. The burden to prove that such dismissal was not done illegally is now shifted to her employer, Abelardo, et al. herein. It is incumbent upon the employer to show by substantial evidence that the dismissal of the employee was validly made and failure to discharge that duty would mean that the dismissal is not justified and therefore illegal.
Abelardo, et al. contended that Cabañas was not dismissed from work, but she stopped reporting for work the following Monday, September 23, 2013, after submitting her written explanation to the charges against her on September 20, 2013. Hence, Cabañas abandoned her work.
For abandonment of work to fall under Article 282 (b) of the Labor Code as gross and habitual neglect of duties, which is a just cause for termination of employment, there must be concurrence of two elements. First, there should be a failure of the employee to report for work without a valid or justifiable reason; and, second, there should be a showing that the employee intended to sever the employer-employee relationship, the second element being the more determinative factor as manifested by overt acts.
Records show that it was Cabañas who first stated in her Reply to Abelardo, et al.’s Position Paper that she was illegally terminated because on September 20, 2013, when she submitted her letter of explanation to the charges against her, she was asked to turn over all the files assigned to her to Abelardo, et al.’s Head Administrative Assistant Antoinette L. Castro. Cabañas also stated that when she submitted her explanation letter she inquired from Atty. Luzano why she was no longer given any work nor was she informed that she already had a replacement, and Atty. Luzano informed her that it was her last day of work and her salary would just be deposited in her ATM account.
If Cabañas wanted to abandon her job, she could just have left without turning over all the files assigned to her. The filing of an illegal dismissal case is inconsistent with abandonment of work. Moreover, the termination of an employee must be effected in accordance with law. Therefore, the employer must furnish the worker or employee sought to be dismissed with two (2) written notices, i.e., (a) notice which apprises the employee of the particular acts or omissions for which his/her dismissal is sought; and (b) subsequent notice which informs the employee of the employer’s decision to dismiss hirn/her.
Abelardo, et al. did not issue a notice to apprise/explain and a notice of termination on the ground of abandonment; hence, Abelardo, et al. failed to comply with procedural due process.
The SC found that the facts and the finding of the Court in Jo vs. National Labor Relations Commission is different from this case; hence, the said ruling therein does not apply in this case. In Jo vs. National Labor Relations Commission, the Court found that Mejila’s (private respondent therein) intention to sever his ties with his employers were manifested by the following circumstances: (1) he bragged to his co-workers his plan to quit his job at Cesar’s Palace Barbershop and Massage Clinic as borne out by the affidavit executed by his former co-workers; (2) he surrendered the shop’s keys and took away all his things from the shop; (3) he did not report anymore to the shop without giving any valid and justifiable reason for his absence; (4) he immediately sought a regular employment in another barbershop, despite previous assurance that he could remain in Cabañas’ employ; and (5) he filed a complaint for illegal dismissal without praying for reinstatement.
The SC found that the ruling in Jo vs. National Labor Relations Commission that the employee’s prayer for separation pay, not reinstatement, belied his claim of illegal dismissal was made in consideration of all the circumstances that showed the employee’s intention to sever his ties with his employers, including the employee’s contemporaneous conduct, and not only because of his prayer for separation pay. Hence, it does not apply in this case.
An employee’s prayer for separation pay is an indication of the strained relations between the parties. Under the doctrine of strained relations, the payment of separation pay is considered an acceptable alternative to reinstatement when the latter option is no longer desirable or viable. The doctrine of strained relations should not be used recklessly or applied loosely nor be based on impression alone. Thus, it is the task of labor tribunals and the appellate courts to resolve whether the employee be reinstated or granted separation pay.
In this case, the LA noted that Cabañas prayed for separation pay in her Complaint, and the LA was convinced that it is more fitting to grant separation pay to complainant in lieu of reinstatement. The NLRC affirmed the decision of the Labor Arbiter. The SC accorded respect to the decision of the labor tribunals considering the facts of this case.
The SC held that Cabañas is entitled to the award of attorney’s fees equivalent to ten percent (10%) of the total monetary award. R.A. No. 9406 sanctions the receipt by the PAO of attorney’s fees, and provides that such fees shall constitute a trust fund to be used for the special allowances of their officials and lawyers.
The matter of entitlement to attorney’s fees by a claimant who was represented by the PAO has already been settled in Our Haus Realty Development Corporation v. Parian. The Court ruled therein that the employees are entitled to attorney’s fees, notwithstanding their availment of free legal services offered by the PAO and the amount of attorney’s fees shall be awarded to the PAO as a token recompense to them for their provision of· free legal services to litigants who have no means of hiring a private lawyer.