No basis

Published by reposted only Date posted on November 2, 2011

In illegal dismissal cases, it must be shown that there was in fact a dismissal. This is the argument raised by Vic.

Vic was the owner of a moviehouse. One of his employees was Dario who had been hired as electrician/air-conditioner operator sometime in January 1983 receiving below the minimum wage salary of only P97 per day.

After 11 years on the job and without any record of infraction of company rules Dario found himself without a job sometime in May 1994. Claiming that Vic terminated his employment without any explanation at all, Dario 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 Dario’s dismissal as illegal for failure of Vic to present evidence that said dismissal was for a just cause. So the LA ordered Vic to reinstate Dario 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.

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

No. 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 Vic must show that Dario’s overt acts unerringly indicates that he does not want to work anymore.

In this regard, Vic has failed. The undisputed facts are: that Dario stopped working in May 1994 and that the following day, Dario filed a complaint for illegal dismissal praying for reinstatement. These are indications which strongly speak against Vic’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 Dario’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 Dario. Considering the difficult times in which our country is in and knowing full well of the widespread unemployment and underemployment as well as the difficulty of looking for a means of livelihood, it is illogical and even suicidal for an employee like Dario to abandon his work simply because his employer rejected his demand for salary increase. Under the given facts, no basis or reason exists for Vic’s theory that Dario abandoned his job.

The decision of the LA is correct except for the payment of the service incentive leave. Should Dario’s reinstatement be no longer feasible, Vic 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 et.al. vs. Aguilar, G.R. 170525, October 2, 2009) –Jose C. Sison (The Philippine Star)

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