Evidence Required in Abandonment Cases

Evidence Required in Abandonment Cases

Abandonment of work is a ground for dismissal under Article 297 of the Labor Code, as amended. However, is mere claim of abandonment already substantial evidence to support the dismissal?

The issue of whether the employee has abandoned his work is factual.

The law does not enumerate what specific overt acts can be considered as strong evidence of the intention to sever the employer-employee relationship.

Failure of the employer to present attendance record even when this was readily available to it could only mean that had said evidence been produced, they would have negated the claim that respondent had been on AWOL.

Mere unexplained absence is not sufficient. It is the employer who has the burden of proof to show a deliberate and unjustified refusal of the employee to resume his employment without any intention of returning. The employer should adduce proof of some overt act of the employee that clearly and unequivocally show his intention to abandon his post.

Employers have to prove a deliberate and unjustified refusal on the part of the employee to resume his employment and such refusal must be clearly shown. Mere absence is not sufficient. It must be

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accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore.

However, an employee who had been absent for a period of one (1) year, without any valid notice or leave and not due to illness or disease, may be dismissed on the ground of abandonment.

An employee who was absent for almost three (3) months because of her confinement in several hospitals for serious illness cannot be dismissed on the ground of abandonment. That she did not file any sick leave is of no moment considering that there was no communication from the respondent company regarding the status of her employment.

Absence for ten (10) consecutive days due to painful and unbearable toothache cannot be said to have abandoned his job in the face of the evidence he presented that he informed his employer about it through the company nurse and which illness of his was later confirmed by the security guard who was dispatched to his house by the employer to verify the information received by the nurse.

Even the failure to report for work after notice to return to work has been served does not necessarily constitute abandonment nor does it bar reinstatement.

Mere absence or failure to report for work is not tantamount to abandonment of work.

In a case where the employee stopped working because of her mistaken belief that the successive memoranda sent to her constituted discrimination, insensibility or disdain which was tantamount to constructive dismissal. She filed a case for constructive dismissal against petitioners and consequently stopped reporting for work. In declaring that she did not abandon her job, the Supreme Court ruled that the mistaken belief on the part of the employee that she was already dismissed should not lead to a drastic conclusion that she has chosen to abandon her work

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.

Hence, 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.

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