Unproven defense

Abandonment is a defense sometimes used by employers when charged with illegal dismissal. But when is there abandonment? Will mere absence of the employee be considered that he has abandoned his work? This case of Andy, Nilo, Cito and Romy answers this question.

The four were workers of a construction company (EGI). Andy was a grader operator while Nilo, Cito and Romy were steel-men/laborers tasked with setting up steel bars used in building foundation, mixing cement and other works. Sometime in July 2004, after working with EGI for several years, they were barred from entering their work premises prompting them to sue the company for illegal dismissal before the NLRC four days later.

With respect to Andy, he claimed that his problem with the company began when he started asking the company to update his SSS premium contributions. Because of his persistence he was first removed as grader operator and made to perform manual labor tilling land and digging earthworks in EGI’s project sites. Then eventually when the SSS inspected the company offices to check on its compliance with the SSS law, he was already barred from entering the sites and advised to look for another job.

With respect to Nilo, Cito, and Romy, they claimed that they were barred from reporting for work after they refused to sign various documents because they were written in English, a language they did not understand. Their weekly wages was short of three days.

For their defense, the company denied that they were illegally dismissed. It claimed that Andy’s complaint with the SSS was in retaliation to its advice to him that he was having an affair with another woman and that his work was substandard. Since that time he was constantly reprimanded for habitual tardiness and unexplained absences. The same is true with the three laborers, the company claimed. The company claimed that they abandoned their work when they incurred absences starting July 22, 2004. In fact the company said that it even sent letters advising them to report for work but to no avail. Was the company correct?

No. In illegal dismissal cases, the burden rest on the employer to prove that the dismissal of an employee is for a valid cause. Abandonment may be a just cause for dismissal but for it to exist it is essential (a) that the employee must have failed to report for work or must have been absent without valid or justifiable reason; and (b) that there must have been a clear intention to sever the employer- employee relationship as shown by some overt acts. Mere absence is not sufficient. There must an unequivocal intent on the part of the employee to discontinue employment. Failure to report for work after a notice to return to work does not necessarily constitute abandonment. The burden of proof is on the employer to show overt acts committed by the employees indicating that they have no more intention to work.

In this case, the company failed to discharge that burden. The filing of the case for illegal dismissal by Andy, Cito, Nilo and Romy barely four days from their alleged abandonment is totally inconsistent with the concept of what constitutes abandonment. The reason why they failed to report for work was really because the company barred them from entering its project sites. So they were indeed illegally dismissed and should be paid separation pay equivalent to one month salary for every year of service, instead of reinstatement because of strained relations. In addition they should also be paid their claim for wage differentials, 13th month pay, holiday pay and service incentive leave pay in view of the company’s failure to effectively controvert said claims by not presenting proof of payment such as payrolls or vouchers (EG&I Construction vs. Sato et.al, G.R. 182070, February 16, 2011, 643 SCRA 492).

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

*      *      *

E-mail: [email protected].