Dear Atty. Kathy,

I have been suffering from a recurring medical condition, which forced me to apply for sick leave five times in the last month. I was absent for the whole month since I was not fit to work whether onsite or remotely. I only had three leave credits left, so I understood that I will be on leave without pay for the rest of the month.

I went back to work as soon as I was cleared by my doctor. However, I was shocked when human resources issued me a notice to explain, charging me with abandonment of work. Despite my explanations and proof of my medical condition, I was still dismissed because according to HR, I abandoned my work since they did not approve my other leaves. I was so frustrated that the day after I received the termination notice, I went to the National Labor Relations Commission to file an illegal dismissal case. Does the company have grounds to dismiss me for abandonment of work?

Zion

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Dear Zion,

Abandonment is the deliberate and unjustified refusal of an employee to resume his employment. It is a form of neglect of duty that constitutes just cause for the employer to dismiss the employee.

For abandonment of work to exist, it is essential that the employee must have failed to report for work or must have been absent without valid or justifiable reason; and that there must have been a clear intention to sever the employer-employee relationship manifested by some overt acts. The absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore, and the burden of proof to show that there was an unjustified refusal to go back to work rests on the employer.

Based solely on your narration, the reason you were absent for a whole month was the medical condition that compelled you to file five leave applications. There is no mention of overt acts that would clearly and unequivocally show an intention to abandon your job. You even reported for work as soon as you had your doctor's clearance and you immediately filed an illegal dismissal case when your employment was terminated. That you had no intention to sever your employment is proven by the foregoing circumstances. With regard to your immediate filing of an illegal dismissal case, the same is proof enough of your intention to return to work and negates the company's charge of abandonment.