Justified absences

Civil service officers appointed, not merely assigned, to a particular station cannot be transferred without their consent. Suppose such transfer is effected without consent and the officer refuses to report to her new assignment, will she be considered AWOL and subject to dismissal? This is the question answered in this case of Nina.

Nina was appointed as Accountant III in Region I of the Office of the Northern Cultural Communities (ONCC) now known as the National Commission for Indigenous People. One of her duties was to sign Disbursement Vouchers for travel expenses of the ONCC regional officials. After more than a year in her position, she was reassigned by the executive director of ONCC (Atty. Diaz) to the position of Technical Assistant of its Socio-Economic Division. She believed there was something wrong with the re-assignment as the said position was non-existent and it was made after she refused to sign the voucher for the travel expenses to Indonesia of her Regional Director, Mrs. Banagan. So she filed an administrative complaint against Mrs. Banagan for grave misconduct, oppression and conduct prejudicial to the service. When Mrs. Banagan asked Nina several times to withdraw her complaint and Nina refused, Mrs. Banagan threatened to reassign her to the ONCC region II in Cagayan or in Manila. But Nina remained unfazed. As a consequence she received a faxed memorandum from Mrs. Banagan directing her to report to the ONCC Region II Office in Cagayan in view of the reassignment of one of the personnel in that region to Manila.

Nina inquired from the Civil Service Commission Regional Office regarding the propriety and legality of her reassignment. In reply the said office opined that the reassignment was "not in order" and that her present assignment must "not be disturbed". So both Mrs. Banagan and Atty. Diaz appealed to the Civil Service Commission itself (CSC). Meantime, Nina requested deferment of her reassignment to region II and requested to go on leave. But her request was denied.

Instead, Atty. Diaz issued a memorandum reprimanding Nina for her failure to report at the Region II Office and declaring that she was considered AWOL. Still, Nina continued to report for work in Region I everyday despite lack of any assignment. She only stopped when Atty. Diaz issued another memorandum ordering her to refrain from reporting in Region I and to comply with her re-assignment in Region II. Thereafter, Nina received a memorandum dropping her from the rolls for being AWOL for more than thirty days.

Five months later, the CSC dismissed the appeal of Atty. Diaz and Mrs. Banagan, declared that Nina’s re-assignment was not valid and ordered Atty. Diaz to return Nina to Region I. But Atty. Diaz informed Nina in another memorandum that she could no longer return to work since the CSC resolution of their appeal was already rendered moot and academic by her having been dropped from the rolls. The CSC and subsequently, the Court of Appeals (CA) agreed with Atty. Diaz. According to the CA, if Nina did not agree with her re-assignment, she should have asked the CSC to enjoin its effectivity and for her failure to do so, she only has herself to blame. The CA said that pursuant to another CSC Resolution (98-0488) an employee who does not agree with the order must nevertheless comply until its implementation is restrained or it is declared not to be in the interest of the service.

Was the CA correct?

No.

The situation prevailing in this case was that the CSC Regional Office issued a legal opinion that Nina’s re-assignment was not in order and that her present assignment in Region I must not be disturbed. It was in fact due to this legal opinion that Atty. Diaz and Mrs. Banagan appealed to the CSC. This is an opinion rendered under a presumption of regularity in the performance of duties so it should be respected pending appeal by Atty. Diaz and Mrs. Banagan. Nina is thus justified in not heeding her reassignment order because her basis was not her firm belief that her transfer was illegal, but the legal opinion of the CSC Regional Office. Nina could not therefore be considered AWOL because she was in fact reporting for work in Region I until ordered to stop by Mrs. Banagan. So Nina should be reinstated to her former position or another one equivalent in rank and salary plus her back salaries (Carino vs. Daoas 380 SCRA 355, G.R. 144493, April 9, 2002).

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