447

Forever Security v. Romeo Flores

532 SCRA 454
Abandonment of Work

FACTS: The respondents, Romeo D. Flores and Lope A. Rallama
were employed as security officers of the petitioners in 1990 and
1988 respectively. As security officers they work for twelve (12)
hours everyday including Sundays and holidays. On February 15,
the petitioners dismissed Flores and Rallama on the ground of
abandonment of their post, duties and responsibilities as security
guards. He filed a complaint stating that he was illegally dismissed
by the petitioners and didnt not receive is salary dated January `18,
1993 to February 15 1993, because he was hospitalized on
January 3 to 31, 1993. When he returned from work, he was told
that he was considered AWOL (Absent without official Leave) since
December 26, 1992. Petitioner demands overtime pay, premium
pay, rest day pay, holiday pay and night shift differential, service
incentive leave pay and 13
th
month pay. Including backwages,
other monetary claims plus attorneys fee.

ISSUE:
Whether or not the abandonment of duties that were erred by the
respondents was justified

RULING:
NO. According to the Labor Code there were two factors that must
be present in order to constitute an abandonment: (a) the failure to
report for work or absence without valid or justifiable reason; and
(2) a clear intention to sever employer-employee relationship. The
second is the more determinative factor and is manifested by overt
acts from which it may be deduced that the employee has no more
intention to work. The intent to discontinue the employment must
be shown by clear proof that it was deliberate and unjustified. Mere
absence from work does not imply abandonment. After their
absence, both Flores and Rallama reported back for work, thus
negating any intent on their part to abandon their jobs. The
petitioners in this case wasnt able to prove in court abandonment.






448
NS Transport vs Jose Zalda N. Zeta
520 SCRA 265
Abandonment of Work

FACTS:
A respondent is a bus conductor working for the petitioner. In June 1999,
Respondent filed a complaint of Illegal Dismissal and non-payment of
benefits, damages and attorneys fee. Oct 1998 he was said to presume
work but he was barred from entering the premises. Later, he found out that
he had been already terminated effective November 26, 1998. Petitioner
erred abandonment of work for his failure to report form work and was said
to have taken up a new employment in another bus company. This
allegations was said to be proven with evidence by the affidavit submitted by
the petitioner stating that the respondent was asked to explain his absences
thru and order or a reply to a memo sent to him; that 2 of the petitioners
employees saw the respondents acting as a bus conductor for Barbra Bus
Line.

ISSUE:
Whether or not the respondent Abandoned his work.

RULING:
No. Wherefore, it was said that it is the employer who will prove that the
employee had abandoned his job, the court held that the evidence presented
by the petitioners is not substantial to prove abandonment. Letters requiring
him to explain his absences are not valid for there are some missing
elements like the imprints of the registry receipts at the bottom are missing;
hence, they are not reliable evidence that NSTSI actually sent the letters and
that Zeta received them. In his alleged absences, it is to be defended that
the best evidence of absenteeism or absence without leave (AWOL) would
have been the signed original or certified true copies of Zeta's daily time
records. As to the affidavits executed by two NSTSI employees to the effect
that each of them saw Zeta as a conductor of Barbra Ann Bus Line, court did
find this not only self-serving but also not sufficient proof that respondent
abandoned his employment with NSTSI. As earlier stated, NSTSI failed to
discharge its burden of presenting evidence to prove abandonment on the
part of Zeta. Certainly, Zeta cannot be faulted for seeking an alternative
employment after he was barred from resuming his work on October 18,
1998 with NSTSI for he must continue to feed, shelter and clothe himself
and his family. Held, petition is denied.


449
De Paul/King Philip Customs Tailor, And/Or Milagros Chuakay And
William Go V. The National Labor Relations Commission (Nlrc),
304 SCRA 448
Abandonment of Work

FACTS: On March 199 Motion of Reconsideration was denied by the
NLRC, finding out he petitioners guilty of Illegal Dismissal.
Respondents who were the employer was affiliated in the Federation
of Free Workers which was a labor union registered in the Bureau of
labor Relations. On March 1999 the respondents went on a strike for
there was allegedly an unfair labor practice and failure on the part of
the petitioners to render payment of overtime pay. June 28, 1993
during the pendency of the case, the union has failed to produce two
(2) representatives on the hearing which made them pursue the case
in their individual capacities. Upon hearing Position Paper was
submitted by the respondents that the petitioner had threatened the
respondents not to form a group of union. Upon which made the
respondents decide to walk-out in their work. The petitioners did
not allegedly notify the respondents to when will they be able to
return to work but just one day, they were barred in their work
premises.


ISSUE: Whether or not the alleged moved of walking out
constitutes a ground for abandonment of work to justify a valid
dismissal.


RULING: No. Wherefore, in order to err abandonment of work it must
first show intentions to abandon or show by overt acts that the
employee have already no intentions to work. NLRC pointed that it is
unlikely for the employees to abandoned their job considering the
years they have rendered service to the company. There was also
no overt act or showed intention to abandon their job. Court held that
the respondents were Illegally Dismissed and be entitled for full back
wages inclusive of allowances and other benefits or monetary
equivalents.

450
VETERANS SECURITY AGENCY, INC. JESUS R. VARGAS v. FELIPE
GONZALVO, JR.,
478 SCRA 298
Abandonment of Work

FACTS:
Petitioner hired the respondent as a security guard with initial assignment at
OWWA (Overseas Workers Welfare Administration) at the POEA (Philippine
Drug Enforcement Agency) from July 1991 to October 1992. Next was the
City Trust Bank from November 1992 to December 1992, at the National
Power Corporation on January 1993 to January 1994 and lastly in February
1994 to April 1995 in University of Santo Tomas. April 1995, respondent
complained of non-remittance of his SSS contributions. May 1995 he was
transferred back to OWWA. The petitioner then hired three (3) additional
guards as for them to swap postings with him because of the expiration of
lease of the property. The Office of the OWWA asked the respondent that
they should be re-assigned somewhere because his wife was also working
with the same company as him, in which he was said to be single then. The
petitioner informed that the respondent will be re-assigned at the DOLE
(Department of Labor and Employment) that the latter be require to renew
his Barangay ID, NBI, and have his medical examinations. April 1999
respondent erred for overtime pay, premium holiday, rest day, service
incentive leave and 13
th
month pay and the non-remittance of his SSS from
January 1999. In September 1999, complainant- respondent filed an Illegal
Dismissal.
The Labor Arbiter ruled that there is an Illegal Dismissal and make the
petitioner pay the respondents for backwages.

ISSUE:
Whether OR NOT THE RESPONDENT ABANDONED his job.

RULING:
No wherefore, the court erred that there was no deliberate intent on the part
of the respondent to abandon his job. Respondents act to resume work
suffices abandonment. It was also held that the respondent even prayed for
a regular assignment. Thus, the court erred that the respondent illegally
dismissed and abandonment was not proven by mere substantial evidence.







451
Reno Foods, Inc. v. National Labor Relations Commission And Noel
Cantonjos
249 SCRA 379
Abandonment of Work

FACTS:
Respondent employed as utility worker in January 1989. In January
2, 1990, the petitioner was verbally informed that he was terminated
effective January 3, 1990. Petitioner claimed that the respondent
failed to report for work in January 2, 1990 and completely
abandoned his job then. June 1992, the respondent filed for Illegal
Dismissal. His Father and Mother who works for the petitioner were
presented as witnesses but the Labor Arbiter ruled lack of merit.
Petitioner on appeal erred that the respondent was validly dismissed,
that the respondent abandoned his job

ISSUE:
Whether or not the respondent abandoned his job.

RULING:
No. Wherefore the Abandonment of job of the respondent was not
clearly proven by the petitioner. Moreover, if the private respondent
was dismissed because of his abandonment of work, the petitioner
should have given him a written notice of termination in accordance
with Section 2, Rule XIV, Book V of the Omnibus Rules
Implementing the Labor Code. Notice of dismissal is when any
employer who seeks to dismiss a worker shall furnish him in a written
notice stating that particular acts or omission constituting the
grounds for his dismissal. But, the petitioner failed to present as
evidence such notice despite its policy to record and file every
transaction including notices of termination. Thus, the petition is
denied.







452
Joy L. Bombase vs. National Labor Relations Commission and Bliss
Development Corporations
249 SCRA 496
Abandonment of Work

Facts:
On May 13, 1988, petitioner who was the officer-in-charge of its EDP
Systems Department filed a complaint for illegal dismissal against
private respondent Bliss Development Corporation. On February
1990, the labor Arbiter Lourdes Sales decided in favor of the
petitioner as she found that petitioner was illegally dismissed. She
ordered private respondent to reinstate petitioner without loss of
seniority rights and with full backwages from the time her
compensation was withheld until her actual reinstatement. Private
respondent was also directed to pay attorneys fees. Petitioners
problems emanated from the enforcement of the Decision
in her favor. On February 6, 1991, she was paid one hundred ninety
thousand and one hundred twenty pesos (P190,120.00) representing
her three (3)-year backwages from May 7, 1987 to May 7, 1990. It
was computed based on her basic salary and exclusive of other
benefits and allowances.
Petitioners reinstatement posed a more difficult problem. She was
refused reinstatement on the ground that on May 9, 1988 former
President Corazon C. Aquino had ordered the dissolution and
absorption of the private respondent by the Home Insurance
Guaranty Corporation. Both parties moved for reconsideration. In an
Omnibus Motion, petitioner contended that: (1) her three (3)-year
backwages should be recomputed to include not only her basic wage
but all her benefits and allowances; (2) since she could no longer be
reinstated, she should be granted separation pay; and (3) she would
be awarded additional backwages from May 8, 1990 to May 22,
1992. On the other hand, private respondent insisted it was already
non-existing, hence, reinstatement of petitioner was no longer
feasible.





ISSUE:
Whether or not the Respondent-Commission Committed Grave
Abuse Of Discretion And Violated Petitioners Right To Due Process
In Awarding Backwages To Petitioner Merely On The Basis Of Her
Basic Salary Without Including All Allowances And Other Benefits
Due To Petitioner.

RULING:
NO. Wherefore public respondent NLRC did not commit grave abuse
of discretion. The claim of petitioner that her backwages should be
recomputed was correctly denied by the respondent. It is thus plain
that petitioner can no longer assail the correctness of her award of
backwages as she failed to challenge it by means of appeal to the
NLRC and within the ten (10) day period required by the Labor Code,
as amended. The petition is denied.

453
Hantex v. Court of Appeals
390 SCRA 181
Abandonment of Work

FACTS:
Private respondent Bernardo Singson was employed by petitioner Hantex
Trading Co., Inc. (HANTEX) on November 1994 as sales representative. His
work is particularly selling laminating machines and ID supplies. He was
paid a regular salary of P165.00/day in addition to P500.00 travelling
allowance and a 3% - 5% commission from his sales. Sometime in
February 1996 the management of HANTEX called the attention of Singson
regarding his deteriorating sales performance. Despite thereof, Singson's
performance showed no sign of improvement as it remained inadequate and
unsatisfactory. Thus, HANTEX, through its president, petitioner Mariano
Chua, held a "one-on-one" conference with him on 5 August 1996.

Singson alleged that petitioner Mariano Chua asked for his resignation from
the company, and required him to submit a resignation letter otherwise his
separation pay, 13th month pay and other monetary benefits would not be
paid. When he refused, petitioner Mariano Chua ejected him from the
premises of HANTEX and left instructions to the guards on-duty to refuse
him admittance.
On the other hand, petitioners denied that they dismissed Singson and
maintained that the conference was merely intended to motivate him "to
exert more effort in his job and mend his work attitude;" and that Singson
apparently resented petitioner Chua for it that he never reported back for
work after the conference.
On 8 August 1996 Singson filed a complaint with the Labor Arbiter for illegal
dismissal. On the contrary, HANTEX averred that Singson was not
dismissed but abandoned his job after he was reprimanded.

ISSUE:
Whether or not it is justified that the respondent was illegally dismissed due
to abandonment of work.

HELD:
No. Wherefore the claim of the petitioners that the respondent abandoned
his work cannot be justified. The courts decision sided upon the
respondents based on their presented facts and evidence. The law provides
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 relationship manifested by some overt acts. The burden
of proof is on the employer to show a clear and deliberate intent on the part
of the employee to discontinue employment without any intention of
returning. In the above case, there was no evidence to show that the
respondent have failed to report for work for any instances. He was even
deprived of due process in his termination and received threats regarding his
claims. The act requiring the respondent for a one-on-one conference
probably is the safest way for the petitioner to execute dismissal but the
ground to dismiss because of allegedly unsatisfactory ratings in the work
performance cannot be justly accepted. He might have a deteriorating sales
performance but nevertheless it does not mean he voluntarily abandoned
his job. His claim for illegal dismissal was justified. Thus, the Petitioners
Hantex Trading Co., Inc., and Mariano Chua are required to pay the
respondent, Bernardo Singson separation pay in lieu of reinstatement in the
amount equivalent to one (1) month pay for every year of service,
backwages computed from 5 August 2002, the time his compensation was
withheld from him, up to the finality of this decision, plus the accrued 13th
month pay.










454
PCL Shipping Philippines, Inc. And U-Ming Marine Transport
Corporation, v.
National Labor Relations Commission And Steve Rusel
511 SCRA 44

FACTS:
Respondent was employed as a seaman of a manning company and
entered into a contract for 12 months. On July 16, 1996, Rusel
slipped and suffered from broken or sprained ankle. Respondent
requested for medical exam but was denied by the Captain of the
Vessel. August 13 1996, feeling an unbearable pain in her left ankle,
Rusel jumped off the vessel with a life vest and swam to the shore
and was later brought to the hospital. Aug 22,1996, the respondent
was required to board a plane bound for eh Philippines. September
26, 1996, Respondent filed a case of Illegal Dismissal erring his
claim for backwages, medical benefits, sick leave pay and damages
while the petitioner erred abandonment of work by the respondent.
Meanwhile, petitioner attested that the responded committed
desertion which is the act by which a seaman abandons a ship or
vessel, or in maritime law, but an unauthorized absence from the
ship with an intention not to return to her service; or as it is often
expressed, animo non revertendi, that is, with an intention to desert.

ISSUE:
Whether or not the respondent was guilty of desertion to justify his
dismissal.


RULING:
No. Wherefore it is essential that there be evidence to prove that if
he leaves the ship or vessel in which he had engaged to perform a
voyage, he has the clear intention of abandoning his duty and of not
returning to the ship or vessel. Rusel's act of jumping ship does not
establish any intent on his part to abandon his job and never
return. It is in the rule that in termination cases, the burden of proof
rests upon the employer to show that the dismissal is for a just and
valid cause. In the present case, since petitioners failed to discharge
their burden of proving that private respondent is guilty of desertion,
the Court finds no reason to depart from the conclusion of the Labor
Arbiter, NLRC and the CA that private respondent's dismissal is
illegal. In the present case, it is clear that private respondent was
illegally terminated from his employment and that his wages and
other benefits were withheld from him without any valid and legal
basis. As a consequence, he is compelled to file an action for the
recovery of his lawful wages and other benefits and, in the process,
incurred expenses. On these bases, the Court finds that he is
entitled to attorney's fees. Held, the court ruled that the petition is
partly granted erring the respondent to receive the award of
US$1620.00 representing private respondent's three months salary
is reduced to US$1200.00. The award of US$550.00 representing
private respondent's living allowance, overtime pay, vacation pay
and special allowance for two months is deleted and in lieu thereof,
an award of US$710.00 is granted representing private respondent's
living allowance, special allowance and vacation leave with pay for
the same period.