No Abandonment and No Constructive Dismissal Result in Reinstatement without Backwages
In proving abandonment, this the Supreme Court (SC) held in Hubilla vs. HSY Marketing Ltd., Co. (823 Phil. 358, 385 (2018) that there must be a positive and overt act signifying an employee’s deliberate intent to sever his or her employment. Thus, mere absence from work, even after a notice to return, is insufficient to prove abandonment.
The employer must show that the employee unjustifiably refused to report for work and that the employee deliberately intended to sever the employer-employee relation. Furthermore, there must be a concurrence of these [two] elements.
Absent this concurrence, there can be no abandomnent. Employer’s mere claim, sans substantial evidence, that the employ left and never reported for work are speculative. Other than bare allegations, substantial evidence needs to be proffered to prove such fact.
If such is the case, the company is left without evidence proving that the employee abandoned his work.
Just like in the case of Nuda vs. LGTM Corporation, Inc., (G.R. No. 245835), aside from his absence from work, respondents failed to present any proof of petitioner’s (employee’s / complainant’s) overt conduct, which clearly manifested his desire to end his employment.
Moreover, petitioner’s act of filing an illegal dismissal complaint is inconsistent with abandonment of employment. An employee who takes steps to protest his or her dismissal cannot logically be said to have abandoned his or her work.
As such, the filing of such complaint is proof enough of petitioner’s desire to return to work, thus, negating any suggestion of abandonment. In conclusion, the Court affirms the findings of the NLRC and the CA that petitioner was neither dismissed nor had abandoned his work from LGTM.
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