Illogical

In illegal dismissal cases, one of the employer’s usual defenses is that there is no dismissal but that the employee abandoned his job. This is illustrated in this case of Willy, the owner of a moviehouse who even advanced the argument that his burden of proving the validity of the dismissal of his employee only comes after the employee has shown that there was in fact a dismissal.

The employee involved here was Berto who had been hired as electrician/air-conditioner operator of Willy’s moviehouse sometime in January 1983 receiving a salary of P97 per day which was not increased even after the statutory minimum wage was increased.

After 11 years on the job and without any record of infraction of company rules Berto found himself without a job sometime in May 1994. Claiming that Willy terminated his employment without any explanation at all, Berto went to the Labor Arbiter (LA) of the NLRC the very next day and filed a complaint for illegal dismissal, payment of wage differentials, overtime pay, holiday and rest day pay and service incentive leave pay.

On August 15, 1997 the LA rendered a decision declaring Berto’s dismissal as illegal for failure of Willy to present evidence that said dismissal was for a just cause. So the LA ordered Willy to reinstate Berto to his former position without loss of seniority rights, pay his back-wages until reinstatement and all the other money claims he sought to recover plus attorney’s fees all totaling P164,501.25.

Willy questioned this ruling. He contended that the burden was not on him to prove Berto’s dismissal was for a just cause since such burden comes only after Berto is able to prove that he was in fact dismissed through some positive act on his part indicating such dismissal. On the contrary he said that Berto in fact refused to work and abandoned his job after his request for salary increase was rejected. Was Willy correct?

No. The undisputed fact is that Berto stopped working in May 1994. Willy denied that Berto was terminated from his employment, and that, instead he abandoned his job and never returned. In claims of abandonment by an employee, the employer bears the burden of showing: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intent manifested through overt acts to sever the employer-employee relationship. Considering that “intention” is a mental state Willy must show that Berto’s overt acts unerringly that he does not want to work anymore. In this regard, Willy has failed.

In fact, Berto’s filing of a complaint for illegal dismissal the day following his termination and his subsequent prayer for reinstatement are indications which strongly speaks against Willy’s charge of abandonment. An employee who losses no time in protesting his layoff cannot by any reasoning be said to have abandoned his work. Abandonment is negated by the immediate filing of the complaint for illegal dismissal coupled with a prayer for reinstatement. This filing of the complaint is proof enough of the desire to return to work.

In addition it is highly unlikely that after Berto’s long years of service without any record of infraction of company rules, he would just walk away, abandon his job and the consequent surrender of the benefits earned from those years of hard work.

Furthermore, if an employee’s aim is to secure the benefits due him from his employer, abandonment would surely be an illogical and impractical recourse especially for simple laborers like Berto. Considering the difficult times in which our country is in, it is illogical and even suicidal for an employee like Berto to abandon his work, knowing full well of the widespread unemployment and underemployment as well as the difficulty of looking for a means of livelihood, simply because his employer rejected his demand for salary increase. Under the given facts, no basis in reason exists for Willy’s theory that Berto abandoned his job.

The decision of the LA is correct except for the payment of the service incentive leave. Should Berto’s reinstatement be no longer feasible, Willy should pay separation pay at the rate of one month for every year of service with a fraction of at least six months considered as one year (Major Cinema, Wilson Pascual, et. al. vs. Aguilar, G.R. 170525, October 2, 2009)

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.

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