Dear Atty. Kathy,

One of our employees had a misunderstanding with his manager. Because of this, the employee did not report for work anymore to our office. We have sent the employee 3 return to work notices, however, he has not respondent nor did he report for work. Before we could even issue the employee a notice to explain for his absences, our company received from the NLRC the employee’s complaint, claiming illegal dismissal. Will the employee’s claim of illegal dismissal succeed even if we have not issued him a notice to explain?

Koda

Dear Koda,

In an illegal dismissal case, the employer has the burden to prove that the termination was for a valid or authorized cause. Before the employer needs to prove that the dismissal was legal, the employee must prove first by substantial evidence that indeed he/she was dismissed. Otherwise, as ruled by the Supreme Court, if there is no dismissal, then there can be no question as to the legality or illegality thereof.

Based solely on your narration, it appears that the employee was not dismissed from employment, as he had yet to be issued a notice to explain. If indeed there is no substantial evidence to prove that the employee was dismissed, determining whether the alleged dismissal is legal or illegal serves no practical purpose.

In view of the foregoing circumstances, and in accordance with Supreme Court rulings, the employee’s claim of illegal dismissal will not prosper.

(Efren Santos Jr., et al. vs. King Chef, et al., G.R. No. 211073, 25 November 2020)

Atty. Kathy Larios