2006 Labor Law Case Digests

PHILIPPINE COMMERCIAL INTERNATIONAL BANK VS. ANASTACIO D. ABAD

G.R. No. 158045. February 28, 2005

Facts: Anastacio D. Abad was the senior Assistant Manager (Sales Head) of
petitioner Philippine Commercial International Bank (PCI Bank now Equitable
PCI Bank)], when he was dismissed from his work. Abad received a
Memorandum from petitioner Bank concerning the irregular clearing of PNBNaval Check of Sixtu Chu, the Banks valued client. Abad submitted his
Answer, categorically denying that he instructed his subordinates to validate
the out-of-town checks of Sixtu Chu presented for deposit or encashment as
local clearing checks. During the actual investigation conducted by petitioner
Bank, several transactions violative of the Banks Policies and Rules and
Regulations were uncovered by the Fact-Finding Committee. Consequently,
the Fact-Finding Officer of petitioner Bank issued another Memorandum to
Abad asking the latter to explain the newly discovered irregularities. Not
satisfied with the explanations of Abad, petitioner Bank served another
Memorandum, terminating his employment effective immediately upon
receipt of the same. Thus, Abad instituted a Complaint for Illegal Dismissal.

Issue: Whether or not awarding of separation pay equivalent to one-half (1/2)

months pay for every year of service to respondent is gross, the same being
contrary to law and jurisprudence.

Held: The award of separation pay is required for dismissals due to causes
specified under Articles 283 and 284 of the Labor Code, as well as for illegal
dismissals in which reinstatement is no longer feasible. On the other hand, an
employee dismissed for any of the just causes enumerated under Article 282
of the Labor Code is not, as a rule, entitled to separation pay.
As an exception, allowing the grant of separation pay or some other financial
assistance to an employee dismissed for just causes is based on equity. The
Court has granted separation pay as a measure of social justice even when
an employee has been validly dismissed, as long as the dismissal was not
due to serious misconduct or reflective of personal integrity or morality.

BERNARDINO A. CAINGAT, vs. NATIONAL LABOR RELATIONS COMMISSION,

STA. LUCIA REALTY & DEVT., INC., R.S. MAINTENANCE & SERVICES, INC., and
R.S. NIGHT HAWK SECURITY & INVESTIGATION AGENCY, INC
G.R. No. 154308. March 10, 2005

Facts: Petitioner Benardino A. Caingat was hired by respondent Sta. Lucia

Realty and Development, Inc. (SLRDI) as the General Manager of SLRDIs
sister companies, R.S. Night Hawk Security and Investigation Agency, Inc.,
and R.S. Maintenance and Services Inc. both organized to service the malls
and subdivisions owned by SLRDI. In connection with this, he was allowed to
use 10% of the total payroll of respondent R.S. Maintenance to defray
operating expenses. Later, the Finance Manager discovered that petitioner
deposited company funds in the latters personal account and used the funds
to pay his credit card purchases, utility bills, trips abroad and acquisition of a
lot in Laguna. Thus, complainant received a memorandum stating that upon
verification of financial records, it was found that the latter have
misappropriated company funds in the sum of about P5, 000,000.00 and is
hereby suspended from his duties as Manager of the stated companies.
Without conducting any investigation, respondent R.S. Maintenance filed a
complaint for sum of money and damages with prayer for writ of preliminary
attachment. Petitioner in turn filed a complaint for illegal dismissal against
the respondents.

Issue: Did respondents illegally dismiss petitioner?

Held: As firmly entrenched in our jurisprudence, loss of trust and confidence

as a just cause for termination of employment is premised on the fact that an
employee concerned holds a position where greater trust is placed by
management and from whom greater fidelity to duty is correspondingly
expected. This includes managerial personnel entrusted with confidence on
delicate matters, such as the custody, handling, or care and protection of the
employers property. The betrayal of this trust is the essence of the offense
for which an employee is penalized. Managements loss of trust and
confidence on petitioner was well justified. Private respondents had every
right to dismiss petitioner. Petitioners long period of disappearance from the
scene and departure for abroad before making a claim of illegal dismissal
does not contribute to its credibility.
Nonetheless, while dismissal may truly be justified by loss of confidence, the
management failed to observe fully the procedural requirement of due

process for the termination of petitioners employment. Two notices should be

sent to the employee. The respondents only sent the first notice, gleaned
from the memorandum. There was no second notice.

RETRENCHMENT; NOTICE REQUIREMENT;SEPARATION PAY

JAKA FOOD PROCESSING CORPORATION, vs. DARWIN PACOT, ROBERT

PAROHINOG, DAVID BISNAR, MARLON DOMINGO, RHOEL LESCANO and
JONATHAN CAGABCAB.
G.R. No. 151378. March 28, 2005

Facts: Respondents were earlier hired by petitioner JAKA Foods Processing

Corporation until the latter terminated their employment because the
corporation was in dire financial straits. It is not disputed, however, that the
termination was effected without JAKA complying with the requirement under
Article 283 of the Labor Code regarding the service of a written notice upon
the employees and the Department of Labor and Employment at least one (1)
month before the intended date of termination. Respondents filed complaints
for illegal dismissal, underpayment of wages and nonpayment of service
incentive leave and 13th month pay against JAKA. The Labor Arbiter rendered
a decision declaring the termination illegal and ordering JAKA to reinstate
respondents with full backwages, and separation pay if reinstatement is not
possible. The Court of Appeals reversed said decision and ordered respondent
JAKA to pay petitioners separation pay equivalent to one (1) month salary,
the proportionate 13th month pay and, in addition, full backwages from the
time their employment was terminated.

Issue: What are the legal implications of a situation where an employee is

dismissed for cause but such dismissal was effected without the employers
compliance with the notice requirement under the Labor Code?

Held: It was established that there was ground for respondents dismissal,
i.e., retrenchment, which is one of the authorized causes enumerated under
Article 283 of the Labor Code. Likewise, it is established that JAKA failed to
comply with the notice requirement under the same Article. Considering the
factual circumstances in the instant case, the Court deem it proper to fix the

indemnity at P50, 000.00. The Court of Appeals have been in error when it
ordered JAKA to pay respondents separation pay equivalent to one (1) month
salary for every year of service. In all cases of business closure or cessation
of operation or undertaking of the employer, the affected employee is
entitled to separation pay. This is consistent with the state policy of treating
labor as a primary social economic force, affording full protection to its rights
as well as its welfare. The exception is when the closure of business or
cessation of operations is due to serious business losses or financial reverses;
duly proved, in which case, the right of affected employees to separation pay
is lost for obvious reasons.

HACIENDA BINO/HORTENCIA STARKE, INC./HORTENCIA L. STARKE VS.

CANDIDO
CUENCA ET AL.
G.R. No. 150478. April 15, 2005

Facts: Hacienda Bino is a 236-hectare sugar plantation located at Negros

Occidental, and represented in this case by Hortencia L. Starke, owner and
operator of the said hacienda. The 76 individual respondents were part of the
workforce of Hacienda Bino consisting of 220 workers, performing various
works, such as cultivation, planting of cane points, fertilization, watering,
weeding, harvesting, and loading of harvested sugarcanes to cargo trucks.
During the off-milling season, petitioner Starke issued an Order or Notice
which stated, that all Hacienda employees who signed in favor of CARP are
expressing their desire to get out of employment on their own volition. The
respondents regarded such notice as a termination of their employment. As a
consequence, they filed a complaint for illegal dismissal. The respondents as
complainants alleged that they are regular and permanent workers of the
hacienda and that they were dismissed without just and lawful cause.

Issue: Whether the respondents are regular or seasonal employees.

Held: The primary standard for determining regular employment is the

reasonable connection between the particular activity performed by the
employee in relation to the usual trade or business of the employer. There is
no doubt that the respondents were performing work necessary and desirable
in the usual trade or business of an employer. Hence, they can properly be

classified as regular employees. For respondents to be excluded from those

classified as regular employees, it is not enough that they perform work or
services that are seasonal in nature. They must have been employed only for
the duration of one season. While the records sufficiently show that the
respondents work in the hacienda was seasonal in nature, there was,
however, no proof that they were hired for the duration of one season only.

ALABANG COUNTRY CLUB INC., ET AL. VS. NATIONAL LABOR RELATIONS

COMMISSION, ET AL.
G.R. No. 157611. August 9, 2005

Facts: Petitioner Alabang Country Club Inc. (ACCI), is a stock, non-profit

corporation that operates and maintains a country club and various sports
and recreational facilities for the exclusive use of its members. Sometime in
1993, Francisco Ferrer, then President of ACCI, requested its Internal Auditor,
to conduct a study on the profitability of ACCIs Food and Beverage
Department (F & B Department). Consequently, report showed that from
1989 to 1993, F & B Department had been incurring substantial losses.
Realizing that it was no longer profitable for ACCI to maintain its own F & B
Department, the management decided to cease from operating the
department and to open the same to a contractor, such as a concessionaire,
which would be willing to operate its own food and beverage business within
the club. Thus, ACCI sent its F & B Department employees individual letters
informing them that their services were being terminated and that they
would be paid separation pay. The Union in turn, with the authority of
individual respondents, filed a complaint for illegal dismissal.

Issue: Whether or not the clubs right to terminate its employees for an
authorized cause, particularly to secure its continued viability and existence
is valid.

Held: When petitioner decided to cease operating its F & B Department and
open the same to a concessionaire, it did not reduce the number of personnel
assigned thereat. It terminated the employment of all personnel assigned at
the department.
Petitioners failure to prove that the closure of its F & B Department was due
to substantial losses notwithstanding, the Court finds that individual

respondents were dismissed on the ground of closure or cessation of an

undertaking not due to serious business losses or financial reverses, which is
allowed under Article 283 of the Labor Code. The closure of operation of an
establishment or undertaking not due to serious business losses or financial
reverses includes both the complete cessation of operations and the
cessation of only part of a companys activities.

ELEMENTS OF ILLEGAL RECRUITMENT IN LARGE SCALE

PEOPLE OF THE PHILIPPINES VS. ROSE DUJUA, ET AL.
G.R. Nos. 149014-16. February 5, 2004

Facts: Ramon Dujua, his mother Rose, his aunt, Editha Singh, and his uncle,
Guillermo Samson were charged with illegal recruitment in large scale. Only
Ramon was arrested. Four testified against Ramon Dujua. All of them were
promised work abroad upon payment of fees but they were not actually
deployed. Ramon pleaded not guilty and denied the allegations that he was a
recruiter.

Issue: Whether or not illegal recruitment in large scale was committed by

Raon Dujua, et al.

Held: The essential elements of the crime of illegal recruitment in large scale
are: 1) The accused engages in acts of recruitment and placement of workers
defined under Article 13 (b) or in any prohibited activities under Article 34 of
the Labor Code; 2) the accused has not complied with the guidelines issued
by the Secretary of Labor and Employment particularly with respect to the
securing of a license or an authority to recruit and deploy workers either
locally or overseas; and 3) the accused commits the unlawful acts against
three or more persons individually or as a group.
All three elements were established beyond reasonable doubt.
First, the testimonies of the complaining witnesses satisfactorily proved that
Dujua promised them employment and assured them of placement overseas.
All of them identified Dujua as the person who recruited them for
employment abroad. As against the positive and categorical testimonies of
the three complainants, Dujuas mere denials cannot prevail. As long as the
prosecution is able to establishthrough credible testimonial evidence that

Dujua has engaged in illegal recruitment , a conviction for the offense can
very well be justified.
Second, Dujua did not have any license or authority to recruit persons for
overseas work, as shown by the Certification issued by the POEA. Neither did
his employer, World Pack Travel and Tours, possess such license or authority.
Third, it has been alleged and proven that Dujua undertook the recruitment of
more than three persons.

CBA; REFUSAL TO RENEGOTIATE ECONOMIC PROVISIONS OF THE CBA BY THE

MANAGEMENT CONSTITUTES ULP

GENERAL MILLING CORPORATION VS. HON. COURT OF APPEALS

G.R. No. 146728. February 11, 2004

Facts: General Milling Corporation employed 190 workers. All the employees
were members of a union which is a duly certified bargaining agent. The GMC
and the union entered into a collective bargaining agreement which included
the issue of representation that is effective for a term of three years which
will expire on November 30, 1991. On November 29, 1991, a day before the
expiration of the CBA, the union sent GMC a proposed CBA, with a request
that a counter proposal be submitted within ten days. on October 1991, GMC
received collective and individual letters from the union members stating that
they have withdrawn from their union membership. On December 19, 1991,
the union disclaimed any massive disaffiliation of its union members. On
January 13, 1992, GMC dismissed an employee who is a union member. The
union protected the employee and requested GMC to submit to the grievance
procedure provided by the CBA, but GMC argued that there was no basis to
negotiate with a union which is no longer existing. The union then filed a case
with the Labor Arbiter but the latter ruled that there must first be a
certification election to determine if the union still enjoys the support of the
workers.

Issue: Whether or not GMC is guilty of unfair labor practice for violating its
duty to bargain collectively and/or for interfering with the right of its
employees to self-organization.

Held: GMC is guilty of unfair labor practice when it refused to negotiate with
the union upon its request for the renegotiation of the economic terms of the
CBA on November 29, 1991. the unions proposal was submitted within the
prescribed 3-year period from the date of effectivity of the CBA. It was
obvious that GMC had no valid reason to refuse to negotiate in good faith
with the union. The refusal to send counter proposal to the union and to
bargain anew on the economic terms of the CBA is tantamount to an unfair
labor practice under Article 248 of the Labor Code.
Under Article 252 of the Labor Code, both parties are required to perform
their mutual obligation to meet and convene promptly and expeditiously in
good faith for the purpose of negotiating an agreement. The union lived up to
this obligation when it presented proposals for a new CBA to GMC within 3
years from the effectivity of the original CBA. But GMC failed in its duty under
Article 252. What it did was to devise a flimsy excuse, by questioning the
existence of the union and the status of its membership to prevent any
negotiation. It bears stressing that the procedure in collective bargaining
prescribed by the Code is mandatory because of the basic interest of the
state in ensuring lasting industrial peace.
The Court of Appeals found that the letters between February to June, 1993
by 13 union members signifying their resignation from the union clearly
indicated that GMC exerted pressure on the employees. We agree with the
Court of Appeals conclusion that the ill-timed letters of resignation from the
union members indicate that GMC interfered with the right of its employee to
self-organization.

UNIONS; UNFAIR LABOR PRACTICE; STRIKES; ILLEGAL DISMISSAL

STAMFORD MARKETING CORP., ET AL. VS. JOSEPHINE JULIAN, ET AL.

G.R. No. 145496. February 24, 2004

Facts: On November 2, 1994, Zoilo de la Cruz, president of the Philippine

Agricultural Commercial and Industrial Workers Union (PACIWU-TUCP), sent a
letter to Rosario Apacible, treasurer and general manager of Stamford
Marketing Corporation, GSP Manufacturing Corporation, Giorgio Antonio
Marketing Corporation, Clementine Marketing Corporation and Ultimate
Concept Phils., Inc. The letter informed her that the rank-and-file employees
of the said companies had formed the Apacible Enterprises Employees
Union-PACIWU-TUCP and demanded that it be recognized. After such notice,

the following three cases arose:

In the First Case, Josephine Julian, president of PACIWU-TUCP, Jacinta Tejada
and Jecina Burabod, a Board Member and a member of the said union, were
dismissed. They filed a suit with the Labor Arbiter alleging that their employer
had not paid them with their overtime pay, holiday pay/premiums, rest day
premium, 13th month pay for the year 1994 salaries for services actually
rendered, and that illegal deduction had been made without their consent
from their salaries for a cash bond. Stamford alleged that the three were
dismissed for not reporting for work when required to do so and for not giving
notice or explanation when asked.
In the Second Case, PACIWU-TUCP filed, on behalf of 50 employees allegedly
dismissed illegally for union membership by the petitioners, a case for unfair
labor practice against GSP which denied such averments. GSP countered that
the BLR did not list Apacible Enterprises Employees Union as a local chapter
of PACIWU or TUCP. Thus, the strike that said union organized after the GSP
refused to negotiate with them was illegal and that they refused to return to
work when asked.
The Third Case was filed for claims of the 50 employees dismissed in the
second case. Petitioner corporations, however, maintained that they have
been paying complainants the wages/salaries mandated by law and that the
complaint should be dismissed in view of the execution of quitclaims and
waivers by the private respondents.
The Labor Arbiter ordered the three cases consolidated as the issues were
interrelated and the respondent corporations were under one management.
First Case: The dismissal was illegal and Stamford was ordered to reinstate
the complainants as well as pay the backwages and other benefits claimed. It
was held that the reassignment and transfer of the complainants were forms
of interference in the formation and membership of a union, an unfair labor
practice. Stamford also failed to substantiate their claim that the said
employees abandoned their employment. It also failed to prove the necessity
of the cash deposit of P2,000 and failed to furnish written notice of dismissal
to any complainants. Further, it failed to prove payments of the amounts
being claimed.
Second Case: The strike was illegal and the officers of the union have lost
their employment status, thus terminating their employment with GSP. GSP is
however ordered to reinstate the complainants who were members of the
union without backwages, save some employees specified. It was established
that the union was not registered, and thus had staged an illegal strike. The
officers of the union should be liable and dismissed, but the members should
not, as they acted in good faith in the belief that their actions were within

legal bounds.
Third Case: GSP was ordered to pay each complainant their claims, as
computed by each individual. All other claims were dismissed for lack of
merit. The Labor Arbiter found petitioners liable for salary differentials and
other monetary claims for petitioners failure to sufficiently prove that it had
paid the same to complainants as required by law. It was also ordered to
return the cash deposits of the complainants, citing the same reasons as in
the First Case.
On appeal, the NLRC affirmed the decision in the First and Third Cases, but
set aside the judgment of the Second Case for further proceedings in view of
the factual issues involved.
On May 14, 1996, a Petition to Declare the Strike Illegal was filed which was
decided in favor of Stamford, upholding the dismissal of the union officers.
The officers made no prior notice to strike, no vote was taken among union
members, and the issue involved was non-strikable, a demand for salary
increases
On elevation to the appellate court, it was ruled that the officers should be
given separation pay, and that Jacina Burabod and the rest of the members
should be reinstated without loss of seniority, plus backwages. It provided for
the payment of the backwages despite the illegality of the strike because the
dismissals were done prior to the strike. Such is considered an unfair labor
practice as there was lack of due process and valid cause. Thus, the
dismissed employees were still entitled to backwages and reinstatement,
with exception to the union officers who may be given separation pay due to
strained relations with their employers.

Issues: (1) Whether or not the respondents union officers and members were
validly and legally dismisses from employment considering the illegality of
the strike.
(2) Whether or not the respondents union officers were entitled to
backwages, separation pay and reinstatement, respectively.

Held: (1) The termination of the union officers was legal under Article 264 of
the Labor Code as the strike conducted was illegal and that illegal acts
attended the mass action. Holding a strike is a right that could be availed of
by a legitimate labor organization, which the union is not. Also, the
mandatory requirements of following the procedures in conducting a strike
under paragraph (c) and (f) of Article 263 were not followed by the union

officers.
Article 264 provides for the consequences of an illegal strike, as well as the
distinction between officers and members who participated therein.
Knowingly participating in an illegal strike is a sufficient ground to terminate
the employment of a union officer but mere participation is not sufficient
ground for termination of union members. Thus, absent clear and substantial
proof, rank-and-file union members may not be terminated. If he is
terminated, he is entitled to reinstatement.
The Court affirmed the ruling of the CA on the illegal dismissal of the union
members, as there was non-observance of due process requirements and
union busting by management. It also affirmed that the charge of
abandonment against Julian and Tejada were without credence. It reversed
the ruling that the dismissal was unfair labor practice as there was nothing on
record to show that Julian and Tejada were discouraged from joining any
union. The dismissal of the union officers for participation in an illegal strike
was upheld. However, union officers also must be given the required notices
for terminating employment, and Article 264 of the Labor Code does not
authorize immediate dismissal of union officers participating in an illegal
strike. No such requisite notices were given to the union officers.
The Court upheld the appellate courts ruling that the union members, for
having participated in the strike in good faith and in believing that their
actions were within the bound of the law meant only to secure economic
benefits for themselves, were illegally dismissed hence entitled to
reinstatement and backwages.
(2) The Supreme Court declared the dismissal of the union officers as valid
hence, the award of separation pay was deleted. However, as sanction for
non-compliance with the notice requirements for a lawful termination,
backwages were awarded to the union officers computed from the time they
were dismissed until the final entry of the judgment.

JURISDICTION OF THE LABOR ARBITERS AND THE NLRC

EVELYN TOLOSA VS. NATIONAL LABOR RELATIONS COMMISSION

G.R. No. 149578. April 10, 2003

Facts: Captain Virgilio Tolosa was master of the vessel M/V Donna owned by

Quana-Kaiun, and was hired through its manning agent, Asia Bulk Transport
Phils., Inc. (Asia Bulk). During channeling activities upon the vessels
departure from Yokohama on November 6, 1992, Capt. Tolosa was drenched
with rainwater. Subsequently, he contracted fever on November 11 which
was later on accompanied by loose bowel movement for the succeeding 12
days. His condition was reported to Asia Bulk and the US Coast Guard
Headquarters in Hawaii on November 15. However, before he could be
evacuated, he died on November 18, 1992.
Evelyn Tolosa, the widow, filed a complaint before the POEA for damages
against Pedro Garate, Chief Mate of the vessel, Mario Asis, Second Mate, Asia
Bulk and Quana-Kaiun. The case was transferred to the NLRC. The Labor
Arbiter ruled in favor of the widow, awarding actual damages plus legal
interest, as well as moral and exemplary damages and attorneys fees. On
appeal to the NLRC, the decision of the Labor Arbiter was vacated and the
complaint was dismissed for lack of jurisdiction over the subject matter of the
action pursuant to the provisions of the Labor Code, as amended. Sustaining
the NLRC, the CA ruled that the labor commission had no jurisdiction over the
subject matter of the action filed by petitioner. Her cause did not arise from
an employer-employee relation, but from a quasi-delict or tort. Under Article
217 (a)(4) of the Labor Code which allows an award of damages incident to
an employer-employee relation, the damages awarded were not proper as
she is not an employee, but merely the wife of an employee.

Issues: (1) Whether or not the Labor Arbiter and the NLRC had jurisdiction
over petitioners action.
(2) Whether or not the monetary award granted by the Labor arbiter has
already reached finality.

Held: (1) The Court affirmed that the claim for damages was filed not for
claiming damages under the Labor Code but under the Civil Code. The Court
was convinced that the allegations were based on a quasi-delict or tort. Also,
she had claimed for actual damages for loss of earning capacity based on a
life expectancy of 65 years, which is cognizable under the Civil Code and can
be recovered in an action based on a quasi-delict. Though damages under a
quasi-delict may be recoverable under the jurisdiction of labor arbiters and
the NLRC, the relief must be based on an action that has reasonable casual
connection with the Labor Code, labor statutes or CBAs. It must be noted
that a workers loss of earning capacity and backlisting are not to be equated
with wages, overtime compensation or separation pay, and other labor
benefits that are generally cognized in labor disputes. The loss of earning

capacity is a relief or claim resulting from a quasi-delict or a similar cause

within the realm of Civil Law. In the present case, Evelyn Tolosas claim for
damages is not related to any other claim under Article 217, other labor
statutes, or CBAs. She cannot anchor her claim for damages to Article 161 of
the Labor Code, which does not grant or specify a claim or relief. This
provision is only a safety and health standard under Book IV of the same
Code. The enforcement of this labor standard rests with the labor secretary. It
is not the NLRC but the regular courts that have jurisdiction over action for
damages, in which the employer-employee relation is merely incidental, and
in which the cause of action proceeds from a different source of obligation
such as a tort.
(2) On the finality of the award, the Court ruled that issues not raised in the
court below cannot be raised for the first time on appeal. Thus, the issue
being not brought to the attention of the Court of Appeals first, this cannot be
considered by the Supreme Court. It would be tantamount to denial of the
right to due process against the respondents to do so.

ABANDONMENT OF WORK; REQUISITES

SAMUEL SAMARCA VS. ARC-MEN INDUSTRIES, INC.

G.R. No. 146118. September 29, 2003

Facts: Samuel Samarca was employed as a laborer by Arc-Men Industries, Inc.

On September 26, 1993, petitioner filed an application for an emergency
leave of absence on account of his sons hospitalization. Upon his return for
work, petitioner was immediately served with a notice of respondents order
suspending him for 30 days. Feeling aggrieved, petitioner filed a complaint
for illegal suspension against respondent and its owner. During the pendency
of the complaint, petitioners 30-day suspension ended. Consequently,
respondent, in a letter, directed petitioner to report for work immediately.
However, he refused, prompting respondent to send him a Notice to
Terminate, directing him to submit, within 5 days, a written explanation why
he should not be dismissed from the service for abandonment of work. For his
part, petitioner submitted a letter-reply explaining that because of the
pendency of his complaint for illegal suspension with the Labor arbiter, he
could not report for work. Respondent, finding the petitioners written
explanation insufficient, decided to terminate his services via a Notice of
Termination. Consequently, petitioner filed an amended complaint for illegal

dismissal.

Issue: Whether or not petitioner abandoned his work.

Held: 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 intention to sever the employer-employee relationship manifested by
some overt acts. Mere absence is not sufficient. It is the employer who has
the burden of proof to show a deliberate and justified refusal of the employee
to resume his employment without any intention of returning.
The above twin essential requirements for abandonment to exist are not
present in the case at bar. Petitioners absence is not without a justifiable
reason. It must be recalled that upon receipt of the Notice to Terminate by
reason of abandonment, petitioner sent respondent a letter explaining that
he could not go back to work because of the pendency of his complaint for
illegal suspension. And immediately after he was dismissed for abandonment
of work, he lost no time to amend his complaint to illegal dismissal. This
alone negates any intention on his part to forsake 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.
ABANDONMENT OF WORK; PROCEDURE FOR TERMINATING AN EMPLOYEE;
ILLEGAL DISMISSAL

AGABON VS. NATIONAL LABOR RELATIONS COMMISSION

G.R. No. 158693. November 17, 2004

Facts: Private respondent Riviera Home Improvements, Inc. is engaged in the

business of selling and installing ornamental and construction materials. It
employed petitioner Virgilio Agabon and Jenny Agabon as gypsum board and
cornice installers on January 2, 1992 until February 23, 1999 when they were
dismissed for abandonment of work. Petitioners then filed a complaint for
illegal dismissal. The Labor Arbiter rendered a decision declaring the
dismissal illegal. On appeal, the NLRC reversed the decision because it found
that the petitioners had abandoned their work and were not entitled to
backwages and separation pay. The Court of Appeals in turn ruled that the

dismissal of the petitioners was not illegal because they had abandoned their
employment.

Issue: Whether or not petitioners were illegally dismissed.

Held: The dismissal should be upheld because it was established that the
petitioners abandoned their jobs to work for another company. Private
respondent, however, did not follow the notice requirements and instead
argued that sending notices to the last known addresses would have been
useless because they did not reside there anymore. Unfortunately for the
private respondent, this is not a valid excuse because the law mandates the
twin notice requirements to the employees last known address. Thus, it
should be held liable for non-compliance with the procedural requirements of
due process.
When the dismissal is for a just cause, the lack of statutory due process
should not nullify the dismissal, or render it illegal, or ineffectual. However,
the employer should indemnify the employee for the violation of his statutory
rights.