Claim of Abandonment vs Claim of Illegal DismissalAtty Elvin
Contrasting allegations may be presented in court involving employee who claims to have been verbally dismissed from service and employer who denies having done so and instead alleges that the employee abandoned his job.
If so, how it should be resolved?
In the August 2013 case of MZR Industries vs. Colambot, the Supreme Court held, in sum:
- The Court recognized the rule that in illegal dis- missal cases, the employer bears the burden of proving that the termination was for a valid or authorized cause;
- Before the employer must bear the burden of proving that the dismissal was legal, the employee must first establish by substantial evidence the fact of his dismissal from service. If there is no dismissal, then there can be no question as to the legality or illegality thereof.
- In the absence of any showing of an overt or positive act proving that the employer had dis- missed the employee, the latter’s claim of illegal dismissal cannot be sustained– as the same would be self-serving, conjectural and of no probative value.
- Degree of proof on the part of employee alleging dismissal: the evidence to prove this fact must be clear, positive and convincing
Lack of evidence of dismissal and the lack of intent on the part of the employee to abandon his work, the
remedy is reinstatement but without backwages. However, if reinstatement is no longer applicable due to the strained relationship between the parties and that the employee already found another employment, each party must bear his or her own loss, thus, placing them on equal footing.
Verily, in a case where the employee’s failure to work was occasioned neither by his abandonment nor by a termination, the burden of economic loss is not rightfully shifted to the employer; each party must bear his own loss.
In one of the cases I represented before the NLRC involving a worker, the employee was charged with fraud by her company. The employer explained that the fraud arose from the fact that the employee “clicked” on her computer screen an “accept” button of a certain sale. By clicking it the employee was allegedly credited a sale closed by other agents and which the worker I was representing never worked for.
Surprisingly though, her supervisor had been requiring her to “click” the same for some unknown reason. It is interesting to note that the employer was not able to connect the clicking of the icon with fraud. No one was induced to buy something against his will. What the employee did was an honest and procedural act which though accidentally redounded to her benefit was not the intended effect.
Such kind of allegation of fraud by the employer in that case cannot stand in court because it has no factual basis. The moral of the story is that whenever the employer alleges fraud, he must back it up with concrete evidence.
Fraud has its technical meaning under the law. In the case of People vs. Menil, Jr., it is defined as follows:
“Fraud, in its general sense, is deemed to comprise anything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust, or confidence justly reposed, resulting in damage to another, or by which an undue and unconscientious advantage is taken of another. It is a generic term embracing all multifarious means which human ingenuity can devise, and which are resorted to by one individual to secure an advantage over another by false suggestions or by suppression of truth and includes all surprise, trick, cunning, dissembling and any unfair way by which an- other is cheated. On the other hand, deceit is the false representation of a matter of fact, whether by words or conduct, by false or misleading allegations, or by concealment of that which should have been disclosed which deceives or is intended to deceive another so that he shall act upon it to his legal injury.”
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