Dear Atty. Kathy,

We have an employee who was dismissed due to his repeated and prolonged absence without leave (AWOL). In addition to his AWOL, the employee also did not report for work anymore to accomplish the turnover and clearance processes after he was notified of his dismissal. We were therefore surprised when we received a notice that the employee filed an illegal dismissal case against our company. We are now preparing our defense against the employee’s illegal dismissal claims. Can we also claim that the employee is also guilty of abandonment, on top of his AWOL, since he no longer completed the turnover and clearance processes?

Camille

Dear Camille,

As ruled by the Supreme Court, abandonment, as a ground for dismissal, is the deliberate and unjustified refusal of an employee to resume his employment, and is a form of neglect of duty. For a valid finding of abandonment, these two factors should be present: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever employer-employee relationship, with the second as the more determinative factor which is manifested by overt acts from which it may be deduced that the employees has no more intention to work. The intent to discontinue the employment must be shown by clear proof that it was deliberate and unjustified, where it is the employer who has the burden to prove that there was abandonment.

Based on your narration, it appears that the employee was already dismissed, for AWOL only, when he failed to accomplish the turnover and clearance procedures, which appears to be the basis for the abandonment charges. After the employee was notified of his dismissal, it would have been unreasonable to expect him to continue reporting for work as there was no longer any work to return to after having been dismissed. Thus, a claim for abandonment would be baseless.

On the AWOL, a mere absence or failure to report for work, even after a notice to return work has been served, is not enough to amount to an abandonment of employment. In addition, if the employee takes steps to contest his dismissal, it cannot be said that he has abandoned his work because a charge of abandonment is totally inconsistent with the immediate filing of a complaint for illegal dismissal, more so when it includes a prayer for reinstatement. In this regard, the filing of an illegal dismissal case negates the second element of “clear intention to sever” the employer-employee relationship.

In sum, subject to clear proof of the above-mentioned two factors for a valid finding of abandonment, there is no ground for the company to claim abandonment against the employee.

(Robustan Inc. vs Court of Appeals, et al., G.R. 223854, 15 March 2021).

Atty. Kathy Larios