Filing of Illegal Dismissal as Against Denial of Termination in Abandonment Cases
Substantial evidence proffered by the employer that it had not terminated the employee should not be ignored on the pretext that the employee would not have filed the complaint for illegal dismissal if he had not really been dismissed. The Court held that such non sequitur reasoning cannot take the place of the evidence of both
The lapse of time between the dismissal of an employee for abandonment and the filing of a complaint for illegal dismissal is not a material indicium of abandonment.
In the following cases, the Supreme Court ruled that the lapse of the period in the filing of illegal dismissal from the supposed date of abandonment does not indicate abandonment of work: (See citations in the book Guide to Valid Dismissal of Employees, 2nd Edition, pp. 162-164)
- The very next day after the employee was re- moved;
- Two (2) days after receiving the termination letter;
- Four (4) days;
- Six (6) days;
- Eighty-four (84) days;
- Six (6) months;
- Eight (8) months;
- Nine (9) months;
- Twenty (20) months;
- Two (2) years and five (5) months;
Under the law, the employee has four (4) years within which to institute his action for illegal dismissal.
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When an employee files an illegal dismissal case, he must indicate, among others, whether he seeks reinstatement or only separation pay. It is important to note that separation pay may be prayed for in lieu of reinstatement.
Logic would dictate that an employee who feels to have been dismissed would seek reinstatement. But what about an employee who files a complaint for constructive dismissal and yet asks to be paid separation pay only instead of reinstatement?
In the case of Jo vs. NLRC, the rule that abandonment of work is inconsistent with the filing of a complaint for illegal dismissal is not applicable to a case where the complainant does not pray for reinstatement but merely asks for separation pay instead. It goes without saying that the prayer for separation pay, being the alternative remedy to reinstatement, contradicts an employee’s stance that he was illegally dismissed for abandonment. That he was illegally dismissed is belied by praying for such relief.
A company argues that the lack of a prayer for rein- statement in employees’ complaint is a sign that they really intended to abandon their employment. It was held that said employees had sufficiently explained in their com- plaint that they are no longer seeking reinstatement because of the strained relationship with their employer.
That complainants did not pray for reinstatement is not sufficient proof of abandonment. A strong indication of the intention of complainants to resume work is their allegation that on several dates they reported to the Agency for reassignment, but were not given any. In fact, the contention of complainant is that the Agency construc- tively dismissed them. Abandonment has recently been ruled to be incompatible with constructive dismissal.
A charge of abandonment is totally inconsistent with the immediate filing of a complaint for illegal dismissal.
In another case, that employees did not pray for reinstatement in their pleadings is not proof of abandonment. In fact, employees’ contention is that the company effected constructive dismissal, which is incompatible with
The Supreme Court considers certain circumstances in ruling that failure of employee to pray for reinstatement does not constitute abandonment. In Macahilig vs. NLRC, the Court says:
“Notably, in his position paper filed with the LA, petitioner stated that it was not in the best interest of the parties that reinstatement be granted and thus prayed for separation pay. The prayer for separation pay cannot be legally regarded as an abandonment since, given the smallness of respondent’s staff, petitioner would have found it uncomfortable to continue working under the hostile eyes of the employer who had been forced to reinstate him.”
It is indeed inconceivable that an employee would just abandon his work for no apparent reason. To get a job is difficult; to run from it is foolhardy.
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