1.

What
constitutes
relationship?

employer

employee

In determining the existence of an employeremployee relationship, this Court has generally

relied on the four-fold test, to wit: (1) the
selection and engagement of the employee; (2)
the payment of wages; (3) the power of dismissal;
and (4) the employers power to control the
employee with respect to the means and methods
by which the work is to be accomplished.29
Among the four, the most determinative factor in
ascertaining the existence of employeremployee
relationship is the "right of control test".30 "It is
deemed to be such an important factor that the
other requisites may even be disregarded."31
This holds true where the issues to be resolved
iswhether a person who performs work for
another is the latters employee or is an
independent contractor,32 as in this case. For
where the person for whom the services are
performed reserves the right to control not only
the end to beachieved, but also the means by
which such end is reached, employer-employee
relationship is deemed to exist.33 (ROYALE
HOMES
MARKETING
CORPORATION, Petitioner,
vs.
FIDEL
P.
ALCANTARA [deceased], substituted by his
heirs, Respondent.)
2. Abandonment as just cause for termination
of employment
As defined under established jurisprudence,
abandonment is the deliberate and unjustified
refusal of an employee to resume his

employment.22 It constitutes neglect of duty and

is a just cause for termination of employment
under paragraph (b) of Article 282 of the Labor
Code.23 To constitute abandonment, however,
there must be a clear and deliberate intent to
discontinue one's employment without any
intention of returning. In this regard, two
elements must concur: (1) failure to report for
work or absence without valid or justifiable
reason, and (2) a clear intention to sever the
employer-employee relationship, with the second
element as the more determinative factor and
being manifested by some overt acts.24 Otherwise
stated, absence must be accompanied by overt
acts unerringly pointing to the fact that the
employee simply does not want to work
anymore.25 It has been ruled that the employer
has the burden of proof to show a deliberate and
unjustified refusal of the employee to resume his
employment without any intention of returning.26
(TAN
BROTHERS
CORPORATION
OF
BASILAN
CITY
THROUGH
ITS
OWNER/MANAGER,
MAURO
F.
TAN,PETITIONERS,
vs. EDNA R. ESCUDERO, RESPONDENT.)
3. Suppose the employer denies dismissing the
employee, who has the duty to prove that the
dismissal is without valid cause?
The employee must elaborate, support or
substantiate his or her complaint that he or she
was dismissed without valid cause (Ledesma, Jr.
vs. NLRC, 537 SCRA 358, October 19, 2007).

4. What is separation pay?

In termination for authorized causes, separation
pay is the amount given to an employee
terminated due to installation of labor-saving
devices, redundancy, retrenchment, closure or
cessation of business or incurable disease.
Separation pay may also be granted to an
illegally
dismissed
employee
in
lieu
of
reinstatement.
5. When is a dismissed employee entitled to
separation pay?
The Labor Code requires a valid cause to
terminate an employee. If there is no valid cause,
there is no valid termination and the employer
will be held liable for illegal dismissal. If the
cause of dismissal falls under any of the five
circumstances of Article 282, no separation pay
shall be given to the dismissed employee. In
dismissal cases falling under Article 283,
separation pay shall only be required if the
dismissal is due to the installation of labor-saving

devices or redundancy. In these two cases, the

worker affected thereby shall be entitled to a
separation pay equivalent to at least his one (1)
month pay or to at least one (1) month pay for
every year of service, whichever is higher.
If the dismissal is due to retrenchment to prevent
losses or closures or cessation of operations of
establishment or undertaking not due to serious
business losses or financial reverses the
separation pay shall be equivalent to one (1)
month pay or at least one-half (1/2) month pay for
every year of service, whichever is higher. In all
cases, a fraction of at least six (6) months shall be
considered one (1) whole year.
On the other hand if the dismissal is due
retrenchment to prevent losses or closures
cessation of operations of establishment
undertaking due to serious business losses
financial reverses no separation pay shall
given to the dismissed employee.

to
or
or
or
be