Afterthought

A LAW EACH DAY (Keeps Trouble Away) By Jose C. Sison (The Philippine

Star) | Updated July 8, 2015 - 12:00am
 

In cases of illegal dismissal the usual defense raised by the employer is that the
employee abandoned his work. This is illustrated in this case of Nardo.

Nardo was a driver and aluminum installer in the company owned by Mr. Sy. His
record of employment showed that he was employed by Sy’s company (LGA)
which was registered with the Department of Trade and Industry on April 5, 2002
although a certification from the SSS showed he has a coverage since 1996. He
has been serving diligently with no record of any work related offense. Hence he
was surprised when after many years of service Mr. Sy and the latter’s wife
scolded and threw invectives and insulting words upon him and then ordered him
to go on an indefinite leave. Due to this incident, he decided to just leave the
work premises hoping that the animosity between him and his employer would
eventually subside.

And so after five days, he went back to the office to talk to Mr. Sy, but the latter
ignored him. He again returned after another five days to discuss his employment
status, but Sy was again unwilling to talk to him. The same thing happened when
he went back the third time a week later. After all these incidents, Nardo was
constrained to file a case with Labor Arbiter of the NLRC for illegal dismissal and
non-payment of benefits against Sy and LGA.

While the case was already pending for more than a month, Nardo received a
letter from Sy and LGA containing a directive for him to report for work and to
explain: (1) his continued absence from the time he was scolded up to the time
he filed the case after he was allegedly given a verbal warning for allegedly going
home early without justification; (2) his erratic behavior and threats to file a case
against Sy and LGA after being asked to justify his prolonged absence; and (3)
his unauthorized use of the company vehicle right before he absented himself. In
reply to this letter, Nardo’s lawyer wrote Sy and LGA informing them that Nardo
would not report for work since it was a mere afterthought to cover-up their act of
illegal termination.

This first letter was then followed by a second letter which contained a warning
that his refusal to follow the earlier directive to report back and explain his
continued absence within 24 hours would constitute abandonment of work on his
part.

And true enough at the hearing of the case, Sy and LGA denied having
dismissed Nardo. They averred that it was Nardo who abandoned his job by not
reporting for work. They also denied having employed him in 1994 since LGA
was registered only on April 5, 2002. They likewise insisted that the letters they
sent were mailed to Sanchez when he stopped reporting for work and were
notices for him to report for work and explain the several infractions he has
committed.

After hearing, the LA found Nardo’s version of facts more credible and declared
that he was indeed illegally dismissed by Sy and LGA. The LA noted that the two
letters were mailed only after the filing of the complaint for illegal dismissal and
were thus made and sent by Sy and LGA to evade the consequences of illegal
termination by showing seeming compliance with the notice requirement and
likewise to demonstrate the absence of dismissal.” Moreover, the LA pointed out
that the alleged infractions imputed against Nardo are not sufficient grounds for
dismissal. So Nardo was awarded back-wages from the date of dismissal, and
separation pay computed from the date of hiring in 1994 up to the finality of the
decision. His claims for holiday pay, service incentive leave pay and attorney’s
fees were also granted.

On appeal the NLRC and subsequently, the Court of Appeals, affirmed this
decision of the LA. Were they correct?

The Supreme Court ruled that from the factual scenario found by the LA, affirmed
by the NLRC and CA which should be accorded due respect and finality for they
are the fact finding bodies more qualified in determining what really happened,
Nardo did not really abandon his work. To constitute abandonment it is essential
that an employee failed to report for work without any valid and justifiable reason
and that he had a clear intention to sever the employment relationship by some
overt act. Mere failure to report for work after notice to return does not constitute
abandonment. In this case, Nardo reported back to Sy several times to ask about
his employment status but he was not entertained. Instead of warning Nardo
about his continued absence or asking him to return to work, Sy just ignored him.
These circumstances show his intention not to retain Nardo. This is bolstered by
the fact that the two letters were sent to Nardo after he has already filed the
complaint for illegal dismissal. Obviously they were merely made to give
semblance of validity to his termination. Besides, Nardo’s immediate filing of the
complaint is proof of his desire to return to work. It negates the intention of
abandoning employment.

Instead of reinstatement, the award of separation pay with back-wages inclusive

of holiday pay, service incentive leave pay and other benefits should be paid to
Nardo because of the strained relations between him and Sy. Besides, if the
employee decides not to be reinstated, separation pay may be awarded.

 The period of reckoning the date of Nardo’s employment for purposes of

computing his separation pay at the rate of one month salary for every year of
service should not however be from 1994, because he has not sufficiently proven
that he was in the employ of Sy and LGA since that date. The SSS certification
he submitted merely stated that the coverage started in 1996. There is nothing in
the certification which shows that he was in the employ of Sy and LGA since
1994 or even since 1996 (Litex Glass and Aluminum Supply and/or Ong-Sitco vs.
Sanchez, G.R. 198465, April 22, 2015).