Abandonment Requires NoticeAtty Elvin
However, while abandoning employee is usually not physically available, he should still be served the notices for the dismissal. There is no such thing automatic termination for abandonment.
An employee whom the employer deems to have abandoned his work cannot be automatically terminated. Due process is required in order for the dismissal to be valid.
Abandonment of work does not per se sever the employer-employee relationship. It is merely a form of neglect of duty, which is in turn a just cause for termination of employment. The operative act that will ultimately put an
end to this relationship is the dismissal of the employee after complying with the procedure prescribed by law. If the employer does not follow this procedure, there is illegal dismissal.
Due process in the case of abandonment means the service of two (2) notices to the employee, viz:
- First notice directing the employee to explain why he should not be declared as having abandoned his job; and
- Second notice to inform him of the employer’s decision to dismiss him on the ground of abandonment.
Most experts are of the position that hearing in an abandonment case is not required since an employee who has abandoned his work will not be around to even participate in a hearing. Although the question remains that if an employee can be notified of his alleged abandonment, why can’t he be notified to attend a hearing?
If he could answer the notice to explain he is probably around to attend the hearing. If there is a possibility that he can attend the hearing then why forego the conference requirement?
Employer’s failure to give notice with warning to the employees before their services are terminated puts in grave doubt the company’s claim that the dismissal was for a just cause. The notice to dismiss employees who allegedly abandoned their jobs is not a mere technicality but a requirement of due process to which every employee is entitled to insure that the employer’s prerogative to dismiss or lay-off is not abused or exercised in an arbitrary manner.
In cases of abandonment of work, the notice shall be served at the worker’s last known address. In case the company sends a notice to explain by mail, it is not sufficient that the employer offers in evidence only the envelope containing the notice. He must offer both.
Failure of the employer to offer in evidence both the envelope and its content as proof of notice to explain abandonment will make the records wanting of proof that the employee was properly apprised of the charges against her and given an opportunity to explain her side, as employer maintains. Evidently, it is clear that employee’s dismissal was effected without the notice required by law.
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