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Abandonment And Illegal Dismissal

The Supreme Court has once again underscored oft-neglected basic Labor Law

principles such as the sanctity of conciliation proceedings, the circumstances pointing to

abandonment, and the doctrine of strained relations and when it is allowed as an exception to therule that reinstatement is the consequence of illegal dismissal.

In Pentagon Steel Corporation v. CA. et al., Perfecto Balogo was an employee for 23 years of

Pentagon Steel Corporation. Without prior notice, he took a leave from work. Allegedly,

Pentagon sent him two written notices asking him to explain his absence, but no response was

heard from Balogo. Thus, Pentagon considered him on AWOL.

After a month however, Balogo filed before the Labor Arbiter a complaint for underpayment and

nonpayment of salaries and wages, overtime pay, holiday pay, service incentive leave, 13th

month pay,separation pay and ECOLA. According to him he failed to report for work because hecontracted flu. After ten days of absence, he went back to work bringing with him a medical

certificate, but Pentagon refused to take him back.

During the conciliation proceedings, Pentagon insisted that it was Balogo who refused to work

and demanded for separation pay to which Pentagon did not agree. Thereafter, Balogo amendedhis complaint to include his claim for illegal dismissal.

The Labor Arbiter dismissed the illegal dismissal charge but directed the payment of SIL and

13th month pay. On appeal, the NLRC ruled that Balogo was illegally dismissed. This ruling wasaffirmed by the CA which held that there was constructive dismissal when Pentagon refused to

accept Balogo back to work. The CA however disagreed with the strained relations findings of

the NLRC and ordered the reinstatement of Balogo.

In its Petition for Review, Pentagon imputes grave abuse of discretion on the CA for basing itsdecision on the proceedings that transpired when the parties were negotiating for a compromise

settlement during the conciliation proceedings and in ruling that there was illegal dismissal and

that Balogo should be reinstated.

The Supreme Court did not find merit in Pentagons Petition. While the High Court agreed withPentagon that statements or agreements made during conciliation proceedings are privileged and

cannot be used as evidence, it still finds enough evidence to rule that Balogo was illegally

dismissed and that he must be reinstated.

Art 233 of the Labor Code states that information and statements made at conciliationproceedings shall be treated as privileged communication and shall not be used as evidence in

the Commission. Conciliators and similar officials shall not testify in any court or body

regarding any matters taken up at conciliation proceedings conducted by them.

According to the court, the reasons behind the exclusion are two-fold: First, since the law favorsthe settlement of controversies out of court, a person is entitled to buy his or her peace without

danger of being prejudiced in case his or her efforts fail; hence, any communication made toward

that end will be regarded as privileged. Indeed, if every offer to buy peace could be used asevidence against a person who presents it, many settlements would be prevented and unnecessary

litigation would result, since no prudent person would dare offer or entertain a compromise if his

or her compromise position could be exploited as a confession of weakness.

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Second, offers for compromise are irrelevant because they are not intended as admissions by the

parties making them. A true offer of compromise does not, in legal contemplation, involve an

admission on the part of a defendant that he or she is legally liable, or on the part of a plaintiff,that his or her claim is groundless or even doubtful, since it is made with a view to avoid

controversy and save the expense of litigation. It is the distinguishing mark of an offer of

compromise that it is made tentatively, hypothetically, and in contemplation of mutualconcessions.

Moreover, in ruling that evidence supports the claim for illegal dismissal, the Supreme Court

disregarded the theory of abandonment advanced by Pentagon. Said the court, abandonment is a

matter of opinion that cannot be lightly presumed from equivocal acts. Two elements mustconcur to constitute abandonment: failure to report for work without valid reason, and clear

intent, manifested through overt acts, to sever the employer-employee relationship.

In this case, the Supreme Court ruled that Balogos reason for absence, which is his illness, is a

justifiable reason. Also, there was no clear intention on his part to sever his employment with

Pentagon considering that he showed willingness to return to work and his complaint before theLabor arbiter for illegal dismissal clearly negates any intention to abandon work. Thus,

Pentagons refusal to take Balogo back to work constitutes constructive dismissal.

Finally, the Supreme Court affirmed the CA and ruled that Balogo is entitled to reinstatement andnot separation pay. The circumstances of the case do not allow an exception to the rule that

reinstatement is the consequence of illegal dismissal. The court did not find enough evidentiary

support that strained relations existed between the parties as the conflict, if any, occasioned bythe respondents filing of an illegal dismissal case, does not merit the severance of the employer-

employee relationship between the parties.

The court further explained that payment of separation pay in lieu of respondents reinstatementwill work injustice to the latter when considered with his long and devoted years in thepetitioners service. Separation pay may take in to account the respondents past years of service,

but will deprive the respondent of compensation for the future productive years that his security

of tenure protects. (Atty. Myra Jennifer D. Jaud-Fetizanan)

Constructive dismissal; defense of abandonment. Respondent filed an illegal dismissal caseagainst the petitioner. Petitioner alleged that respondent abandoned his job and was not

dismissed. The Court held that respondent was illegally dismissed. The jurisprudential rule on

abandonment is constant. It is a matter of intention and cannot lightly be presumed from certainequivocal acts. To constitute abandonment, two elements must concur: (1) the failure to report

for work or absence without valid or justifiable reason; and (2) a clear intent, manifested throughovert acts, to sever the employer-employee relationship. In this case, petitioner failed toestablish clear evidence of respondents intention to abandon his employment. Except for

petitioners bare assertion that respondent did not report to the office for reassignment, no proof

was offered to prove that respondent intended to sever the employer-employee relationship.

Besides, the fact that respondent filed the instant complaint negates any intention on his part toforsake his work. It is a settled doctrine that the filing of a complaint for illegal dismissal is

inconsistent with the charge of abandonment, for an employee who takes steps to protest his

dismissal cannot by logic be said to have abandoned his work.Nationwide Security and Allied

Services, Inc. v. Ronald P. Valderama, G.R. No. 186614, February 23, 2011.

Abandonment; elements. Respondents filed an illegal dismissal case against the petitioner-corporation. For its defense, petitioner-corporation alleged that the respondents abandoned their

work and were not dismissed, and that it sent letters advising respondents to report for work, butthey refused. The Court held that for abandonment to exist, it is essential (a) that the employee

must have failed to report for work or must have been absent without valid or justifiable reason;

and (b) that there must have been a clear intention to sever the employer-employee relationshipmanifested by some overt acts. The employer has the burden of proof to show the employees

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deliberate and unjustified refusal to resume his employment without any intention of returning.

Mere absence is not sufficient. There must be an unequivocal intent on the part of the employee

to discontinue his employment. Based on the evidence presented, the reason why respondentsfailed to report for work was because petitioner-corporation barred them from entering its

construction sites. It is a settled rule that failure to report for work after a notice to return to work

has been served does not necessarily constitute abandonment. The intent to discontinue theemployment must be shown by clear proof that it was deliberate and unjustified. Petitioner-

corporation failed to show overt acts committed by respondents from which it may be deduced

that they had no more intention to work. Respondents filing of the case for illegal dismissal

barely four (4) days from their alleged abandonment is totally inconsistent with the knownconcept of what constitutes abandonment.E.G. & I. Construction Corporation and Edsel Galeos

v. Ananias P. Sato, et al., G.R. No. 182070, February 16, 2011.

Illegal dismissal; burden of proof. Respondents filed an illegal dismissal case against the

petitioners. Petitioners, in their defense, alleged that the respondents abandoned their work andwere not dismissed by the petitioners. Although In cases of illegal dismissal, the employer bears

the burden of proof to prove that the termination was for a valid or authorized cause, theemployee must first establish by substantial evidence the fact that he was dismissed. If there isno dismissal, then there can be no question as to the legality or illegality thereof. In the present

case, the Court held that there was no evidence that respondents were dismissed or that they were

prevented from returning to their work. It was only respondents unsubstantiated conclusion thatthey were dismissed. As a matter of fact, respondents could not name the particular person who

effected their dismissal and under what particular circumstances. Absent any showing of an overt

or positive act proving that petitioners had dismissed respondents, the latters claim of illegaldismissal cannot be sustained.Exodus International Construction Corporation, et al. v.

Guillermo Biscocho, et al., G.R. No. 166109, February 23, 2011.

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