A worker who overextended his vacation leave cannot be said to have abandoned his job due to the failure of the employer to adduce proof of overt acts on the part of employee showing clearly and unequivocably his intention to abandon his work. However, it is one thing to say that private respondent did not abandon his work. It is quite another to say that he is likewise not guilty of AWOL. For going AWOL, the employee may be subjected to disciplinary action.

Most companies require their employees to file their leave form prior to the taking of vacation leaves.

While it is not generally possible for an employee to anticipate when he will be ill or have to attend to some family problem or emergency, and be able to give prior notice to his employer, he should give such notice when he will be absent for some other cause, such as when he will attend to some other business elsewhere, for such engagements can be properly scheduled by him so as not to interfere with his regular working hours and disrupt the operations of the company in his particular area of assignment. Without prior notice of the employee’s absence, the company is not afforded enough time to get a

temporary replacement for him.

In the following instances, the Supreme Court held that there is abandonment:

1. Failure of employee to work after the expiration of his authorized leave;190
2. Failure to comply with reinstatement order;
3. Deliberate absence without permission to look for work elsewhere;

At some point, the Supreme Court held that the dismissal of employees for abandonment is unjustified since their absence was due to their arrest and detention for seven months for the alleged violation of the Revised Penal Code.

However, an absence to evade arrest and to ward off the long arm of the law is not a valid justification. To do so would be to place an imprimatur on the attempt to derail the normal course of the administration of justice.

Sea based workers are governed by the maritime practice with respect to their conduct while engaged to perform a voyage. Thus, desertion is the common charge against a seaman who jumps ship.

Desertion, in maritime law is the act by which a seaman deserts and abandons a ship or vessel, in which he had engaged to perform a voyage, before the expiration of his time, and without leave. By desertion, in maritime law, is meant, not a mere unauthorized absence from the ship, without leave, but an unauthorized absence from the ship with an intention not to return to her service; or as it is often expressed, animo non revertendi, that is, with an intention to desert.

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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.

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Abandonment is a form of neglect of duty; hence, a just cause for termination of employment under Article 297 of the Labor Code, as amended.

Ordinarily, a common impression is that an employee who never reports for work for a certain period of time and without notice to the employer has abandoned his work.

This is not accurate. Mere absence does not amount to abandonment. There are requisites which must concur before an unauthorized absence can be considered as abandonment.

To constitute abandonment, however, there must be a clear and deliberate intent to discontinue one’s employment without any intention of returning.

Two (2) elements must concur:

1. The employee must have failed to report for work or must have been absent without valid or justifiable reason; and
2. There must have been a clear intention on the part of the employee to sever the employer-

   

   employee relationship manifested by some overt

Absenteeism per se is not an overt act which would prove an unequivocal intent on the part of the employee to discontinue employment.

Otherwise stated, absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore.

The second element above is the more determinative factor being manifested by some overt acts from which it may be deduced that the employee has no more intention to work. The intent to discontinue the employment must be act.

Abandonment is a matter of intention and cannot lightly be presumed from certain equivocal acts

(Hantex Trading Co., Inc. vs. Court of Appeals, G.R. No. 148241, September 27, 2002).

It cannot be argued that the fact that employees “simply disappeared” from their work, they are guilty of abandonment. 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 unjustified refusal to go back to work rests on the employer.

For abandonment to exist, two requisites must con- cur: first, the employee must have failed to report for work or must have been absent without valid or justifiable reason; and second, there must have been a clear intention on the part of the employee to sever the employer-employee relationship as manifested by some overt acts.

The second element is the more determinative factor. Abandonment as a just ground for dismissal thus requires clear, willful, deliberate, and unjustified refusal of the employee to resume employment. Mere absence or failure to report for work, even after notice to return, is not tantamount to abandonment.

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