443

Philippine Long Distance and Telephone Company, Inc v. Amparo

Balbastro and National Labor Relations Commission
519 SCRA 233
Gross and Habitual Neglect of Duties

FACTS:
Respondent, Amparo was employed in the services of the petitioner
as a telephone operator in 1978. Petitioner erred that the responded
was dismissed due to habitual absences. According to the petitioner,
to first happen in March 19-29 1989 without even informing the
petitioner, because of this, he was suspended for 18 days. Next
incident happened in June 11-13, of the same year. According to the
petitioners doctor he asked for a consultation on June 14 and was
given a medical certificate which was dated in June 5-8. The doctor
confirmed the sick leave but nt n the remaining days the respondent
didnt asked for the doctors care which were June 11-13. Because of
this he was suspended for 15 days. The last incident of unexcused
absences happened in August 6-12 of the same year wherein he
called the petitioners doctor on August 6 saying that he has a favor.
The doctor gave him a medical certificate dated August -10 1989
because of influenza but the doctor emphasized that the dates,
August 9-12 were not covered by the medical certificate. Respondent
was terminated in October 1989. In 1999, respondent filed a case
erring illegal dismissal and to retrieve separation pays.

ISSUE:

Whether or not the complaint of illegal dismissal was justified

RULING:

YES. Wherefore, the courts decision is justified due to the sufficient
evidence presented by the petitioners. Excessive absences without
justifiable cause pertains gross neglect of duties. It was held that
there was a PAGKUKULANG in the part of the respondent, that even
though he has presented evidence like medical certificate during the
time he was absent, he cant deny neglect of his duties. Those dates
that was not covered by the medical certificate needs further
explanation on why he encountered excessive absences. Article 4 of
the Labor Code implies that if there were doubt in the rulings and
regulation of the Labor Code, it must be held in favor of the labor, but
if it affects ones source of livelihood, it is not justified. The law in
protecting the rights of the employees authorizes neither self-
oppression nor self- distraction of the employer. It should make clear
that the law tilts the scale of justice in favor of the labor, but it is not
recognition of inherent economic inequality and the labor. The goal is
to put the two parties- the employee and the employer in a relatively
equal position. The employee n his expense is given what he is paid
for and in return he should give the best possible service he can
possibly render to the employer.


444
Tower Industrial Sales and John Kenneth Ocampo v. Court of
Appeals, NLRC, and Rufo Pamalo Jr.
487 SCRA 556
Gross and Habitual Neglect of Duties

FACTS:
Respondent is employed as a driver of Tower Industrial Sales in
1987. He works every day from 7:00am to 7:00pm.The Respondent
filed a complaint with the Labor Arbiter because of Unfair Labor
Practice and claims of overtime pay, premium pay for holiday and
Service incentive leave pay against the Petitioners. A week after the
complaint filed by the Respondents, the latter was given a
memorandum requiring him to explain about his absences without
official leave the respondent upon receipt of the memo informed the
petitioner that he have asked permission about it. Respondent was
already given a memorandum for a warning about another instance
of absence without leave prior to the latter. Respondent was also
given notice regarding the damage he had brought when he bumped
at a tree of a private property while he was driving a companys car.
Petitioner filed a preventive suspension pending the investigation of
his case for gross misconduct and habitual tardiness and destruction
of property. Private Respondent filed a complaint for Illegal Dismissal
and claim for overtime pay, holiday and separation pay, 13t month
pay, service incentive leave pay, and legal holiday pays. April 20012
Petitioner issued a notice of termination effective March 9, 2002 for
gross misconduct. November 2002 Labor Arbiter favored the
petitioner on the grounds for a valid dismissal.

ISSUE:
Whether or not the NLRC had a grave abuse of discretion when it
reversed the Labor arbiters decision upholding the dismissal of the
employee on the grounds of gross misconduct.

RULING:
NO. Wherefore the dismissal is valid. The dismissal of private
respondent may be sustained if shown to have made for a just and
authorized cause and with due process. Employer would be the one
to prove that the dismissal is of just cause in which failure to prove
such would suffice Illegal Dismissal.
In the above case, Petitioner failed to present substantial evidence to
prove that there was a gross misconduct on the part of the
respondents. The court erred that a day or 2s absences without prior
leave of absence is trivial or insignificant to the 15 years that the
respondent served the petitioners. Held, Petition was dismissed.

445
Rene P. Valiao v. Hon. Court of Appeals, National Labor Relations
Commission-Fourth Division (Cebu City) West Negros College
435 SCRA 543
Gross and Habitual Neglect of Duties

FACTS:
Petitioner was appointed by private respondent on February 1990 as
a Student Affairs Offices Director. Three (3) months later, petitioner
was assigned as Acting Director of the Alumni Affairs Office. On July
29, 1990, petitioner was transferred to a staff position and
designated as Records Chief at the Registrars Office but was again
re-assigned as a typist on June 24, 1991 because of his tardiness
and absences as manifested in the summary of tardiness ad
absences report. Due to this he was asked to explain but his
explanations was said to be either unacceptable. Amidst the
subsequent reports about his absenteeism and tardiness, he still
didnt change; he was even caught manipulating the Bundy clock
which made the respondent order a 15 days suspension without pay.
On June 15, 1992, another adverse report on tardiness and
absences from the Registrar was made against the petitioner
prompting WNC to send him another memorandum with an attached
tardiness and absences report, calling his attention on his tardiness
and absences for the period February to April 1992.
On June 20, 1992, petitioner sent a letter of appeal and explained his
side to the new college president, Suzette Arbolario-Agustin, who
gave petitioner another chance. The petitioner was then appointed
as Information Assistant effective immediately. However, the
petitioner did not immediately assume the post of Information
Assistant prompting the President of private respondent WNC to call
his attention. When the petitioner finally assumed his post, he was
allowed a part-time teaching job in the same school to augment his
income.
Sometime in December 1992, WNC won a case against the officials
of the union before the NLRC and was ordered to prepare a media
blitz of this victory but the petitioner did not comply with the order.
When petitioner reported for work on the first day of January 1993,
he was relieved from his post and transferred to the College of
Liberal Arts as Records Evaluator. Not for long, the Dean of the
Liberal Arts sent a letter to the Human Resources Manager
complaining about the petitioners poor performance and habitual
absenteeism, as shown in the daily absence reports.
On January 18, 1993, petitioner was again absent from work without
permission or notice to his immediate superior. It turned out that he
went to Bacolod City and on January 28, 1993, the petitioner was
one of those arrested during a raid in the house because he was
found possessing two (2) suspected marijuana roaches (butts) which
were placed inside his left shoe.
Petitioner was asked to explain by the respondent within 24 hours
why he should not be terminated as a result of the raid and the
charges of Illegal Possession of Prohibited Drugs against him
but Petitioner allegedly was not able to answer immediately since he
was in jail and received said memorandum only on January 30,
1993, although his wife had earlier received the memorandum on
January 28, 1993.
On January 29, 1993, the petitioner was dismissed for failure to
answer said memorandum.
On February 1, 1993, the petitioner wrote to the President of WNC
explaining his side and asking for due process and WNC cancelled
its Notice of Termination dated January 29, 1993, and granted the
petitioners request that a hearing would be conducted. He was then
placed under preventive suspension and an investigation committee
was organized to conduct the probe. On March 6, 1993, a notice of
hearing/investigation was sent to the petitioner.
After the investigation attended by the petitioner and his counsel,
with proceedings duly recorded, the investigation committee
recommended the dismissal of petitioner. A notice of termination
was then sent to petitioner informing him of his termination from the
service for serious misconduct and gross and habitual neglect of
duty. The petitioner received the notice on March 25, 1993, but did
not file a grievance concerning the notice of termination.
On January 19, 1995, petitioner filed a Complaint against WNC for
illegal suspension, illegal dismissal, backwages, salary differential for
salary increases and other benefits granted after his dismissal as
well as for moral and exemplary damages and attorneys fees. The
petitioner also erred that his outright dismissal from employment was
not valid and too harsh and that he was not dismissed from
employment because of tardiness or absences but because he was
among those apprehended in a raid



ISSUE:
Whether or not the petitioners defense of Illegal Dismissal was
justified and he be granted salary differential fees?

RULING:
NO. Wherefore the court ruled that the petitioners dismissal by the
respondents was based on a valid cause after a due hearing, the
latters claim for moral and exemplary damages, and attorneys fees
had no basis in fact and in law. The court erred that habitual
absenteeism and tardiness already constitutes gross and habitual
neglect of duties and are among the just causes for termination of an
employee under the Labor Code of the Philippines. The Labor
Arbiters findings in evidence on record showed that despite several
warnings, he still continued his gross actions. An employee, in his
scope of work has the duty to adhere to the rules and regulations of
the company or the employer which includes observing his work
schedules and observe proper demeanor and professionalism. His
frequent absenteeism and tardiness reflect his indifferent attitude to
and lack of motivation in his work and must probably constitutes
gross neglect of duties. The court further PINABULAANAN that their
decision rendering a just dismissal by the respondent was based on
the proof of evidence rendered by the respondents specifically the
summary of tardiness ad absences report and not because of he is
apprehended in the raid as there was no justified serious or imminent
threat to the life or property of his employer or co-workers.


446
Eastern Overseas Employment Center v. Cecilia Bea
476 SCRA 384
Gross and Habitual Neglect of Duties

FACTS:
On February 11, 1992, private respondent Bea was hired as Senior
Head Staff Nurse by Elbualy Group/Sultan Qaboos University
Hospital (SQUH), the principal employer through its placement
agency in the Philippines, petitioner Eastern Overseas Employment
Center, Inc. (Eastern). Her contractual employment was for two (2)
years, and was subject to a three-(3) month probationary period
during said contractual employment.

Private respondent Beas probationary status ended on May 1992
but she still continued being in the employ of SQUH. She, like all
other employees of the hospital, was also periodically subjected to
performance evaluation.

After an alleged poor evaluation of private respondent Beas
performance as a nurse, she was transferred to the Neo-Natal Unit
on December 26, 1992 and her performance was supposedly under
observation until January 23, 1993.

On February 24, 1993, the Director of Nursing Services notified
private respondent Bea that her contract would be terminated on
May 24, 1993 for allegedly, not being able to fulfill her contractual
obligations within Nursing Services, and to which was not clearly
elaborated. Because of this, she wrote a letter dated March 7, 1993
to the Vice Chancellor of SQUH, requesting for a reconsideration of
the decision to terminate her.

ISSUE:
Whether or not, there was a grave abuse of discretion on the part of
the Court of Appeals to rule that the respondent was illegally
dismissed.

RULING:
No. Wherefore the Illegal Dismissal was completely justified. In the
present case, petitioner failed to present substantial evidence to
prove that Beas alleged poor performance in her duties as Senior
Head Staff Nurse amounted to gross and habitual neglect. The
respondent erred a valid dismissal notwithstanding Article 282 of the
Labor Code which states that an unsatisfactory rating can be a just
cause for dismissal only if it amounts to gross and habitual neglect of
duties. The fact that an employees performance is found to be poor
or unsatisfactory does not necessarily mean that the employee is
grossly and habitually negligent of his duties. Gross negligence
implies a want or absence of or failure to exercise slight care or
diligence, or the entire absence of care. It evinces a thoughtless
disregard of consequences without exerting any effort to avoid them.

In the case, the Petitioner also has not given Bea the first notice
apprising her of the particular acts or omissions for which her
dismissal was based together with the opportunity for her to explain
her side notwithstanding the twin requirements imposed by law for
the dismissal to be considered valid, in which (1) the dismissal must
be for a valid or authorized cause; and (2) the employee must be
afforded due process. Wherefore, the court is justified in finding that
the respondent was illegally dismissed.









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), And
Victoriano Santos, Bartolome Rebamutan, Marina P. Velasco,
Vicitacion T. Solis, Rosalinda E. Habolin, Rosalin A. Abelida,
Teresita A. Daclan, Belen H. Alvarez, Rogelio E. Bartolay, Rita B.
Lucero, Geminiano R. Maderazo, Adolfo P. Mulato, Amparo B. Egos,
Gloria J. Cruz, Flora A. Navea Gabriel F. Fernando, Priscila
Villavecer And Renato Villavecer
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.

FACTS:
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.