Abandonment of Work vs. Illegal Dismissal Case: How to Establish Abandonment and Defend Against a Labor Case
Abandonment is a form of neglect of duty; hence, a just cause for termination of employment under Article 282 [now Art. 297 in a re-numbered Labor Code] of the Labor Code. (See page 156, Guide to Valid Dismissal of Employees 2nd Edition by Atty. Villanueva citing Forever Security & General Services vs. Flores, G.R. No. 147961, September 7, 2007.)
For instance, an employee suddenly disappears from the company. Meaning, he did not report on a day that he was supposed to. More days followed and he still did not report for work. In the mind of employer he is missing in action; he is disappearing; he seems to be abandoning his job.
The best practice to handle this incident is to serve a Notice to Explain (NTE) for Absence Without Official Leave (AWOL) on the first day of absence. Why AWOL? There is no abandonment yet or the company does not yet know if the absence is due to an intention to abandon the work. So, to establish abandonment more notices may be required. Read the difference between AWOL and abandonment
Note also that the NTE for AWOL should have the directive, in one of the paragraphs, to return to work. This is also known as the return-to-work notice or order (RTWO). The rationale is to establish, through documentary evidence, the lack of intention to return to work if indeed the employee fails to positively respond to the notice. See Sample NTE for AWOL; See Sample Notice of Dismissal for AWOL; See Sample Notice of Dismissal for Abandonment of Work in Filipino
However, there are companies that do not want to antagonize the employee and hesitate to send the NTE on the first day of absence and sometimes even for several days of absence. This is not a good practice though in the context of labor litigation since when this develops into a case the company is at a great disadvantage.
Assuming that an employee who failed to report for work did so because he planned to file an illegal dismissal case claiming that he was harassed, abused, made to feel unimportant, not paid accordingly, or even “forced to quit” on account of ill treatment. Usually, the ground is characterized under constructive dismissal (physical or verbal abuse, inhumane treatment, elimination of benefits, diminution of benefits, etc.). The situation created would be that the employee initiates an illegal dismissal case but the employer thought he abandoned his job.
Hence, a hesitant company may find itself in a situation where it did not send the notices but later on received a Summons for illegal dismissal. Naturally any company would raise the defense that the employee suddenly disappeared thus, he abandoned his work. Unfortunately, without the notices the employer cannot support its position.
In a labor case headlock, on one side the employee claims constructive dismissal (illegal dismissal) while the employer claims abandonment of work. Which position prevails? It depends on evidence presented. This is where the notices would matter.
There are decisions of the Supreme Court (SC) stating that the filing of illegal dismissal case negates abandonment. Meaning, if the employee abandoned his job why would he file an illegal dismissal case?
Thus, in the case of L.C. Ordoñez Construction vs. Nicdao (G.R. No. 149669, July 27, 2006) the SC held that human experience tells us that no employee in his right mind would go through the trouble of filing a case unless the employer had indeed terminated his services.
The immediate filing of complaint for illegal dismissal by the employees who were dismissed on the ground of abandonment praying for their reinstatement negates the finding of abandonment. (See page 161, Guide to Valid Dismissal of Employees 2nd Edition citing Unicorn Safety Glass, Inc. vs. Basarte, G.R. No. 154689, November 25, 2004; See Cosmos Bottling Corp. vs. Nagrama, Jr., G.R. No. 164403, March 4, 2008; Samarca vs. Arc-Men Industries, Inc., G.R. No. 146118, October 8, 2003; Cebu Marine Beach Resort vs. NLRC, G.R. No. 143252, October 23, 2003.)
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However, if the employer was able to send the NTE then it may be able to support its position that there was abandonment of work. For instance, it took two (2) weeks before the Summons was received. If the employer was vigilant, on the first day of absence it may have already sent the NTE even via registered mail or private courier (LBC, etc.). After about three or four days, the employer may have already sent the second notice. In another four days, a notice of dismissal for abandonment of work may have already been sent
.
Hence, by the time the employer may have received the Summons notice of dismissal for abandonment may have already been issued. This will support the employer’s position that the employee abandoned his job which will be helpful in gaining a stronger defense against the labor case.
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