Dear Atty. Kathy,

My employer, Company A, is forcing me to admit participation in a fraud and theft case, where my department colleague is the reported mastermind, even if I know nothing of the case. I was told that if I do not testify against my colleague, my employment will just be terminated for conspiracy with my coworker. Feeling harassed that I will not get a fair investigation and that my employment will be illegally terminated, I did not report for work the following day and filed a constructive dismissal case against Company A and my immediate superior with the NLRC. The morning after I filed the case, I suddenly received a notice to explain for abandonment of work, punishable with dismissal. Does Company A have grounds to dismiss me for abandonment?

Harper

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Dear Harper,

In the recent case of Gososo vs Leyte Lumber Yard and Hardware Inc., et al. (G.R. 205257; 13 January 2021; "Gososo Case"), the Supreme Court reiterated its previous rulings on abandonment, as follows:(1) the employee must have failed to report for work or must have been absent without valid or justifiable reason; (2) there must have been a clear intention to sever the employer-employee relationship manifested by some overt acts; (3) abandonment is a matter of intention and cannot lightly be presumed from equivocal acts; (4) absence must be accompanied by overt acts pointing definitely to the fact that the employee simply does not want to work anymore; and (5) the burden of proof to show that there was unjustified refusal to go back to work rests on the employer.

According to what you shared, Company A cannot discharge the burden of proof of abandonment, as it appears that they only speculated you had no intent to return to work when you were absent for a day. You were also absent for 1 day only when Company A issued the notice to explain for abandonment. In any case, as ruled in the Gososo Case, mere absence or simple failure to report for work is not abandonment, more so since you were able to immediately file your complaint for constructive dismissal before the NLRC, which filing is inconsistent with a charge of abandonment. Indeed, employees who take steps to protest their alleged dismissal cannot be said to have abandoned their work.