Severe penalty
A LAW EACH DAY (KEEPS TROUBLE AWAY) - Atty. Jose C. Sison (The Philippine Star) - January 17, 2020 - 12:00am

This is a case involving dismissal of an employee for alleged abandonment of work. The employee in this case has been considered by his employer to be “excessively” absent without prior permission. The issues raised in this case is the meaning of “excessive” absence that can be considered an abandonment of work and whether dismissal is the appropriate penalty for an employee who is absent from work without permission or approval.

This is the case of Lino who is married to Perla with whom he begot a son Dexter. Lino has been employed with a brewing company as route helper for almost two years already when he encountered a grave family problem because his wife Perla deserted him and abandoned the family. Considering that he had a full time job, there was no one he could entrust Dexter to while he was working. He was thus compelled to bring Dexter to his province in the Visayas because it would have been extremely difficult for him to be the father and mother of Dexter in the city especially considering that he was under emotional, psychological, spiritual and physical stress and strain.

For bringing Dexter to the province, he was not able to report for work for one month without the permission of his employer. So the company sent him a memo to explain in writing within 24 hours why no disciplinary action should be taken against him. Within the period fixed, Lino answered the memo and informed the company that he had to bring his son to the province because his wife deserted him and no one can take care of Dexter. He said he could not also call long distance or sent a telegram because he had no more money due to the cost of medicine he purchased that forced him to even borrow money.

Upon receipt of Lino’s letter of explanation the following day, the company did not consider it valid because under its rules and regulations, absence without permission for six consecutive working days is considered abandonment of work. So Lino was dismissed effective 30 days thereafter. 

Seven days after his dismissal, Lino filed a complaint for illegal dismissal before The National Labor Relations Commission (NLRC) alleging that his dismissal was without just cause because it was not established that his absence is unjustified; that the penalty of dismissal is too severe; that suspension for a definite period would be sufficient considering that this is his first offense and that he has been serving the company for two years already.

The Labor Arbiter (LA) however dismissed Lino’s complaint for lack of merit. The LA ruled that Lino’s termination from employment was legal because it is crystal clear that Lino abandoned his work and that it is the right of the employer to dismiss an employee who incurs frequent, prolonged and unexplained absences.

The NLRC however modified the LA decision and held that Lino’s dismissal was invalid because his prolonged absence, although unauthorized, does not amount to gross neglect or abandonment of work. Dismissal is too severe a penalty because Lino is a first offender and it is generally impossible for him to anticipate when he would be compelled to attend to some family problems or emergency like in this case. So the NLRC ordered the reinstatement of Lino without loss of seniority rights but without back wages. Is the NLRC correct?

The Supreme Court said yes. Lino is not guilty of abandonment of work. Abandonment is the deliberate, unjustified refusal of the employee to resume his employment. To constitute abandonment, there must be (1) failure to report for work or absence without valid or justifiable reason; and (2) clear intention to sever employer-employee relation. The burden of proof is on the employer to show the employee’s deliberate intent to discontinue his employment without any intention of returning. Mere absence is not sufficient. In this case both elements have not been proven. Lino immediately complied with the memo requiring him to explain his absence and upon learning his termination, he immediately sued for illegal dismissal. His prolonged absence without approval is not abandonment. The company used with undue haste the rules and regulations on continuous and unauthorized absences. Under our Constitution and the Article on Social Justice and Human Rights, Labor contracts are impressed with public interest and must perforce yield to the common good. So the decision of the NLRC in this case must be affirmed (Brew Master International Inc. vs NLRC and Estrada et. al, G.R. 119243, April 17, 1997).

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