Effect of Employee Seeking Employment After Filing Labor Case for Dismissal Due to Abandonment and Refusal to be Reinstated

Abandonment is a ground for dismissal of employment under Article 297 of the Labor Code, as amended. The employee has the right to challenge the dismissal by filing a labor case.

However, during the pendency of the case, the employee may have decided to seek employment. What will be the effect on the labor case that he filed?

As held in the case of Hda. Dapdap I vs. NLRC, (285 SCRA 9 (1998).) the fact that the employee’s starting date of employment in a new company coincides with the date of the original complaint strongly indicates that such employment was only meant to help employee and his family survive during the pendency of his case. It has been said that abandonment of position cannot be lightly inferred, much less legally presumed from certain equivocal acts177 such as an interim employment.

An employee who filed an illegal dismissal case cannot be faulted for looking for other employment since he must continue to feed, shelter and clothe himself and his family.

It may occur that in a proceeding before the Labor Arbiter the employer offers reinstatement to the complaining worker. But the employee refuses to be reinstated. Is the refusal a sign that the employee lacks interest to work and ultimately negates employee’s claim of illegal dismissal?

The Supreme Court answered in the negative. It considered the refusal to be reinstated as more of a symptom of strained relations between the parties, rather than an indicium of abandonment of work as obstinately insisted by the employer. While the employee desires to have his job back, it must have dawned on him that the filing of the complaint for illegal dismissal and the bitter incidents that followed

have sundered the erstwhile harmonious relationship between the parties.

Where evidence that the employer had dismissed the employee was lacking, the refusal of the employee to resume work during the hearing before the Labor Arbiter was considered as an indication of lack of intention to dismiss on the part of the company and the worker’s lack of interest in resuming work.

As held in the case of Hantex Trading Co., Inc. vs. CA, neither does the fact that the employer made offers to reinstate the employee legally disproves illegal dismissal. The Supreme Court observes that the offer may very well be “a tacit admission of employees that they erred in dismissing him verbally and without observance of both substantive and procedural due process.”

In such case, employer’s offer of reinstatement was made only after more than one (1) month from the date of the filing of the illegal dismissal case. Their belated gesture of goodwill is highly suspect. If petitioners were indeed sincere in inviting respondent back to work in the company, they could have made the offer much sooner. In any case, their intentions in making the offer are immaterial, for the offer to re-employ respondent could not have the effect of validating an otherwise arbitrary dismissal.

Learn how to Validly Terminate Employee in the Philippines with this Tutorial Video of Atty. Elvin

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