In the case of a managerial employee who is faced with investigation for willful breach of trust, he gives up the guarantee considering the rule that an employee who is reposed with trust and confidence can be easily dismissed for willful breach of such trust given the proven circumstances and substantial evidence.

While the rule in the case of Villanueva vs. National Labor Relations Commission (Rolia Villanueva vs. National Labor Relations Commission, G.R. No. 129413, July 27, 1998.) espouses that a rank and file employee who ascends to managerial position sheds off certain guaranties of his lower position, he must still be accorded the rights in relation to his security of tenure.

Thus, the right of the management to dismiss must be balanced against the managerial employee’s right to security of tenure which is not one of the guaranties he gives up.

Although the standards for their dismissal are less stringent, the loss of trust and confidence must be substantial and founded on clearly established facts sufficient to warrant the managerial employee’s separation from the company. Substantial evidence is of critical importance and the burden rests on the employer to prove from the company.

Due to its subjective nature, it can easily be concocted by an abusive employer and used as a subterfuge for causes which are improper, illegal or unjustified. In the termination of managerial employees based

on loss of trust and confidence, the employer’s evidence must clearly and convincingly establish the facts and incidents upon which the loss of confidence may fairly be made to rest.

One of the nightmares of a manager is to be held responsible for acts which he never committed or which he was not part of. But things like that happen due to his command responsibility.

His liability in such instance boils down to his neglect of duty. Thus, on the principle of respondeat superior or command responsibility alone, managerial employees may be held liable for negligence in the performance of their managerial duties, unless they can positively show that they were not involved. Their position requires a high degree of responsibility that necessarily includes unearthing of fraudulent and irregular activities.

In a case where a manager for the Healthcare Division was charged for her failure to report the anomalous transaction within her division involving fictitious invoices, her dismissal was upheld on account of command responsibility. Her duties, among others, were to detect fraudulent activities and irregularities within her Division and thereafter report the same to management.

Her position demands that she manage, control and take responsibility over activities in her department. It requires a high degree of responsibility that necessarily includes unearthing of fraudulent and irregular activities. This, she

failed to do. Her ‘bare, unsubstantiated and uncorroborated denial’ of her participation in the anomalies does not prove her innocence nor disprove her alleged guilt. On the contrary, such denial or failure to rebut the serious accusations hurled against her militate against her innocence and strengthened the adverse averments of the company.

The ordinary rule is that one who has knowledge peculiarly within his control, and refuses to divulge it, cannot complain if the court puts the most unfavorable construction upon his silence, and infers that a disclosure would have shown the fact to be as claimed by the opposing party.

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Fraud is never presumed. It must be proved. It cannot be based on nebulous facts.

Fraud and misrepresentation are, therefore, never presumed; it must be proved by clear and convincing evidence and not mere preponderance of evidence. (Solidbank Corporation v. Mindanao Ferroalloy Corporation, G.R. No. 153535, July 28, 2005, 464 SCRA 409, 426; Republic of the Philippines v. Institute for Social Concern, G.R. No. 156306, January 28, 2005, 449 SCRA 512, 521-522; Spouses Morandarte v. Court of Appeals, G.R. No. 123586, August 12, 2004, 436 SCRA 213, 223; and Maestrado v. Court of Appeals, 384 Phil. 418, 435 (2000).)

Hence, the Supreme Court does not sustain findings of fraud upon circumstances which, at most, create only suspicion; otherwise, it would be indulging in speculations and surmises.

In a case where the employee questions her dis- missal due to the fact that the company failed to prove damage or losses on its part, the Supreme Court held that:

“The fact that private respondent did not suffer losses from the dishonesty of the petitioner because of their timely discovery does not excuse the latter from any culpability. Indeed, the law, in protecting the rights of workers, authorizes neither oppression nor self-destruction of the employer. In this regard, a company has the right to dismiss its employees as a measure of self-protection.” (Rolia Villanueva vs. National Labor Relations Commission, G.R. No. 129413 July 27, 1998.)

Further, the fact that the employer failed to show it suffered losses in revenue as a consequence of em- ployee’s questioned act is immaterial. The fact that the employee attempted to deprive petitioner of its lawful revenue is tantamount to fraud against the company, which warrants dismissal from the service.

Actual loss against the company is not necessary to establish fraud as an offense. It must be stressed that actual defraudation is not necessary in order that an employee may be held liable under the aforequoted rule. That employee attempted to deprive employer of its lawful revenue is already tantamount to fraud against the company, which warrants dismissal from the service.

Even if it is to be argued that the employer suffered no damage since the employee has settled his account, the rule is clear that it is betrayal of trust and confidence that is the reason for termination. The fact that there was ultimately no monetary damage is of no moment.

Restitution of property taken by the errant employee does not erase the offense committed.

Hence, even if the shortages have been fully restituted, the fact that the employee has misappropriated company funds is a valid ground to terminate his services for loss of trust and confidence.

In another case, misappropriation of company funds, although the shortages had been fully restituted, is a valid ground to terminate the services of an employee of the company for loss of trust and confidence.

In the final analysis, an employer cannot be compelled to retain in his service an employee who is guilty of acts inimical to its interest. A company has the right to dismiss its employees as a measure of protection.

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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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Gross negligence implies a want or absence of or failure to exercise slight care or diligence, or the entire absence of case.

The totality of infractions or the number of violations committed during the period of employment shall be considered in determining the penalty to be imposed upon an erring employee. The offenses committed by him should not be taken singly and separately but in their totality. Fitness for continued employment cannot be compartmentalized into tight little cubicles of aspects of character, conduct, and ability separate and independent of each other.

In the case where the employee committed numerous infractions in his one year and eleven-month stay in the company such as being issued a warning for failing to check the right quantity of materials subject of his inventory, going undertime incurring absence without asking for prior leave, having been warned for failure to implement proper warehousing and housekeeping procedures, failure to ensure sufficient

supplies of oxygen- acetylene gases during business hours, having been warned again for failing to secure prior permission before going on leave and finding by Accounting that he made double and wrong entries in his inventory.

According to the Court, such numerous infractions are sufficient to hold him grossly and habitually negligent. His repeated negligence is not tolerable. The totality of infractions or the number of violations he committed during his employment merits his dismissal. Moreover, gross and habitual negligence includes unauthorized absences and tardiness, as well as gross inefficiency, negligence and carelessness.

Invoking Valiao v. Court of Appeals, the Court said that “fitness for continued employment cannot be compartmentalized into tight little cubicles of aspects of character, conduct, and ability separate and independent of each other.”

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