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PHILIPPINE COMMERCIAL INTERNATIONAL BANK VS. ANASTACIO D. ABAD

G.R. No. 158045. February 28, 2005

Facts: Anastacio D. Abad was the senior Assistant Manager (Sales Head) of petitioner Philippine

Commercial International Bank (PCI Bank now Equitable PCI Bank)], when he was dismissed from his

work. Abad received a Memorandum from petitioner Bank concerning the irregular clearing of PNB-

Naval Check of Sixtu Chu, the Banks valued client. Abad submitted his Answer, categorically denying

that he instructed his subordinates to validate the out-of-town checks of Sixtu Chu presented for deposit

or encashment as local clearing checks. During the actual investigation conducted by petitioner Bank,

several transactions violative of the Banks Policies and Rules and Regulations were uncovered by the

Fact-Finding Committee. Consequently, the Fact-Finding Officer of petitioner Bank issued another

Memorandum to Abad asking the latter to explain the newly discovered irregularities. Not satisfied with

the explanations of Abad, petitioner Bank served another Memorandum, terminating his employment

effective immediately upon receipt of the same. Thus, Abad instituted a Complaint for Illegal Dismissal.

Issue: Whether or not awarding of separation pay equivalent to one-half (1/2) months pay for every

year of service to respondent is gross, the same being contrary to law and jurisprudence.

Held: The award of separation pay is required for dismissals due to causes specified under Articles 283

and 284 of the Labor Code, as well as for illegal dismissals in which reinstatement is no longer feasible.

On the other hand, an employee dismissed for any of the just causes enumerated under Article 282 of

the Labor Code is not, as a rule, entitled to separation pay.

As an exception, allowing the grant of separation pay or some other financial assistance to an employee

dismissed for just causes is based on equity. The Court has granted separation pay as a measure of social

justice even when an employee has been validly dismissed, as long as the dismissal was not due to

serious misconduct or reflective of personal integrity or morality.

BERNARDINO A. CAINGAT, vs. NATIONAL LABOR RELATIONS COMMISSION, STA. LUCIA REALTY & DEVT.,

INC., R.S. MAINTENANCE & SERVICES, INC., and R.S. NIGHT HAWK SECURITY & INVESTIGATION AGENCY,INC

G.R. No. 154308. March 10, 2005

Facts: Petitioner Benardino A. Caingat was hired by respondent Sta. Lucia Realty and Development, Inc.

(SLRDI) as the General Manager of SLRDIs sister companies, R.S. Night Hawk Security and Investigation

Agency, Inc., and R.S. Maintenance and Services Inc. both organized to service the malls and

subdivisions owned by SLRDI. In connection with this, he was allowed to use 10% of the total payroll of

respondent R.S. Maintenance to defray operating expenses. Later, the Finance Manager discovered that

petitioner deposited company funds in the latters personal account and used the funds to pay his credit

card purchases, utility bills, trips abroad and acquisition of a lot in Laguna. Thus, complainant received a

memorandum stating that upon verification of financial records, it was found that the latter have

misappropriated company funds in the sum of about P5, 000,000.00 and is hereby suspended from his

duties as Manager of the stated companies. Without conducting any investigation, respondent R.S.

Maintenance filed a complaint for sum of money and damages with prayer for writ of preliminary

attachment. Petitioner in turn filed a complaint for illegal dismissal against the respondents.

Issue: Did respondents illegally dismiss petitioner?


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Held: As firmly entrenched in our jurisprudence, loss of trust and confidence as a just cause for

termination of employment is premised on the fact that an employee concerned holds a position where

greater trust is placed by management and from whom greater fidelity to duty is correspondingly

expected. This includes managerial personnel entrusted with confidence on delicate matters, such as

the custody, handling, or care and protection of the employers property. The betrayal of this trust is the

essence of the offense for which an employee is penalized. Managements loss of trust and confidence

on petitioner was well justified. Private respondents had every right to dismiss petitioner. Petitioners

long period of disappearance from the scene and departure for abroad before making a claim of illegal

dismissal does not contribute to its credibility.

Nonetheless, while dismissal may truly be justified by loss of confidence, the management failed to

observe fully the procedural requirement of due process for the termination of petitioners

employment. Two notices should be sent to the employee. The respondents only sent the first notice,

gleaned from the memorandum. There was no second notice.

RETRENCHMENT; NOTICE REQUIREMENT;SEPARATION PAY

JAKA FOOD PROCESSING CORPORATION, vs. DARWIN PACOT, ROBERT PAROHINOG, DAVID BISNAR,

MARLON DOMINGO, RHOEL LESCANO and JONATHAN CAGABCAB.G.R. No. 151378. March 28, 2005

Facts: Respondents were earlier hired by petitioner JAKA Foods Processing Corporation until the latter

terminated their employment because the corporation was in dire financial straits. It is not disputed,

however, that the termination was effected without JAKA complying with the requirement under Article

283 of the Labor Code regarding the service of a written notice upon the employees and the

Department of Labor and Employment at least one (1) month before the intended date of termination.

Respondents filed complaints for illegal dismissal, underpayment of wages and nonpayment of service

incentive leave and 13th month pay against JAKA. The Labor Arbiter rendered a decision declaring the

termination illegal and ordering JAKA to reinstate respondents with full backwages, and separation pay

if reinstatement is not possible. The Court of Appeals reversed said decision and ordered respondentJAKA to pay petitioners separation pay equivalent to one (1) month salary, the proportionate 13th

month pay and, in addition, full backwages from the time their employment was terminated.

Issue: What are the legal implications of a situation where an employee is dismissed for cause but such

dismissal was effected without the employers compliance with the notice requirement under the Labor

Code?

Held: It was established that there was ground for respondents dismissal, i.e., retrenchment, which is

one of the authorized causes enumerated under Article 283 of the Labor Code. Likewise, it is established

that JAKA failed to comply with the notice requirement under the same Article. Considering the factual

circumstances in the instant case, the Court deem it proper to fix the indemnity at P50, 000.00. The

Court of Appeals have been in error when it ordered JAKA to pay respondents separation pay equivalent

to one (1) month salary for every year of service. In all cases of business closure or cessation of

operation or undertaking of the employer, the affected employee is entitled to separation pay. This is

consistent with the state policy of treating labor as a primary social economic force, affording full

protection to its rights as well as its welfare. The exception is when the closure of business or cessation

of operations is due to serious business losses or financial reverses; duly proved, in which case, the right

of affected employees to separation pay is lost for obvious reasons.


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HACIENDA BINO/HORTENCIA STARKE, INC./HORTENCIA L. STARKE VS. CANDIDO

CUENCA ET AL.

G.R. No. 150478. April 15, 2005

Facts: Hacienda Bino is a 236-hectare sugar plantation located at Negros Occidental, and represented in

this case by Hortencia L. Starke, owner and operator of the said hacienda. The 76 individual respondents

were part of the workforce of Hacienda Bino consisting of 220 workers, performing various works, such

as cultivation, planting of cane points, fertilization, watering, weeding, harvesting, and loading of

harvested sugarcanes to cargo trucks. During the off-milling season, petitioner Starke issued an Order or

Notice which stated, that all Hacienda employees who signed in favor of CARP are expressing their

desire to get out of employment on their own volition. The respondents regarded such notice as a

termination of their employment. As a consequence, they filed a complaint for illegal dismissal. The

respondents as complainants alleged that they are regular and permanent workers of the hacienda and

that they were dismissed without just and lawful cause.

Issue: Whether the respondents are regular or seasonal employees.

Held: The primary standard for determining regular employment is the reasonable connection betweenthe particular activity performed by the employee in relation to the usual trade or business of the

employer. There is no doubt that the respondents were performing work necessary and desirable in the

usual trade or business of an employer. Hence, they can properly be classified as regular employees. For

respondents to be excluded from those classified as regular employees, it is not enough that they

perform work or services that are seasonal in nature. They must have been employed only for the

duration of one season. While the records sufficiently show that the respondents work in the hacienda

was seasonal in nature, there was, however, no proof that they were hired for the duration of one

season only.

ALABANG COUNTRY CLUB INC., ET AL. VS. NATIONAL LABOR RELATIONS COMMISSION, ET AL.

G.R. No. 157611. August 9, 2005

Facts: Petitioner Alabang Country Club Inc. (ACCI), is a stock, non-profit corporation that operates and

maintains a country club and various sports and recreational facilities for the exclusive use of its

members. Sometime in 1993, Francisco Ferrer, then President of ACCI, requested its Internal Auditor, to

conduct a study on the profitability of ACCIs Food and Beverage Department (F & B Department).

Consequently, report showed that from 1989 to 1993, F & B Department had been incurring substantial

losses. Realizing that it was no longer profitable for ACCI to maintain its own F & B Department, the

management decided to cease from operating the department and to open the same to a contractor,

such as a concessionaire, which would be willing to operate its own food and beverage business within

the club. Thus, ACCI sent its F & B Department employees individual letters informing them that their

services were being terminated and that they would be paid separation pay. The Union in turn, with the

authority of individual respondents, filed a complaint for illegal dismissal.

Issue: Whether or not the clubs right to terminate its employees for an authorized cause, particularly to

secure its continued viability and existence is valid.

Held: When petitioner decided to cease operating its F & B Department and open the same to a

concessionaire, it did not reduce the number of personnel assigned thereat. It terminated the

employment of all personnel assigned at the department.


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Petitioners failure to prove that the closure of its F & B Department was due to substantial losses

notwithstanding, the Court finds that individual respondents were dismissed on the ground of closure or

cessation of an undertaking not due to serious business losses or financial reverses, which is allowed

under Article 283 of the Labor Code. The closure of operation of an establishment or undertaking not

due to serious business losses or financial reverses includes both the complete cessation of operations

and the cessation of only part of a companys activities.

ELEMENTS OF ILLEGAL RECRUITMENT IN LARGE SCALE

PEOPLE OF THE PHILIPPINES VS. ROSE DUJUA, ET AL.

G.R. Nos. 149014-16. February 5, 2004

Facts: Ramon Dujua, his mother Rose, his aunt, Editha Singh, and his uncle, Guillermo Samson were

charged with illegal recruitment in large scale. Only Ramon was arrested. Four testified against Ramon

Dujua. All of them were promised work abroad upon payment of fees but they were not actually

deployed. Ramon pleaded not guilty and denied the allegations that he was a recruiter.

Issue: Whether or not illegal recruitment in large scale was committed by Raon Dujua, et al.

Held: The essential elements of the crime of illegal recruitment in large scale are: 1) The accused

engages in acts of recruitment and placement of workers defined under Article 13 (b) or in any

prohibited activities under Article 34 of the Labor Code; 2) the accused has not complied with the

guidelines issued by the Secretary of Labor and Employment particularly with respect to the securing of

a license or an authority to recruit and deploy workers either locally or overseas; and 3) the accused

commits the unlawful acts against three or more persons individually or as a group.

All three elements were established beyond reasonable doubt.

First, the testimonies of the complaining witnesses satisfactorily proved that Dujua promised them

employment and assured them of placement overseas. All of them identified Dujua as the person who

recruited them for employment abroad. As against the positive and categorical testimonies of the three

complainants, Dujuas mere denials cannot prevail. As long as the prosecution is able toestablishthrough credible testimonial evidence that Dujua has engaged in illegal recruitment , a

conviction for the offense can very well be justified.

Second, Dujua did not have any license or authority to recruit persons for overseas work, as shown by

the Certification issued by the POEA. Neither did his employer, World Pack Travel and Tours, possess

such license or authority.

Third, it has been alleged and proven that Dujua undertook the recruitment of more than three persons.

CBA; REFUSAL TO RENEGOTIATE ECONOMIC PROVISIONS OF THE CBA BY THE MANAGEMENT

CONSTITUTES ULP

GENERAL MILLING CORPORATION VS. HON. COURT OF APPEALS

G.R. No. 146728. February 11, 2004

Facts: General Milling Corporation employed 190 workers. All the employees were members of a union

which is a duly certified bargaining agent. The GMC and the union entered into a collective bargaining

agreement which included the issue of representation that is effective for a term of three years which

will expire on November 30, 1991. On November 29, 1991, a day before the expiration of the CBA, the

union sent GMC a proposed CBA, with a request that a counter proposal be submitted within ten days.

on October 1991, GMC received collective and individual letters from the union members stating that


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they have withdrawn from their union membership. On December 19, 1991, the union disclaimed any

massive disaffiliation of its union members. On January 13, 1992, GMC dismissed an employee who is a

union member. The union protected the employee and requested GMC to submit to the grievance

procedure provided by the CBA, but GMC argued that there was no basis to negotiate with a union

which is no longer existing. The union then filed a case with the Labor Arbiter but the latter ruled that

there must first be a certification election to determine if the union still enjoys the support of the

workers.

Issue: Whether or not GMC is guilty of unfair labor practice for violating its duty to bargain collectively

and/or for interfering with the right of its employees to self-organization.

Held: GMC is guilty of unfair labor practice when it refused to negotiate with the union upon its request

for the renegotiation of the economic terms of the CBA on November 29, 1991. the unions proposal

was submitted within the prescribed 3-year period from the date of effectivity of the CBA. It was

obvious that GMC had no valid reason to refuse to negotiate in good faith with the union. The refusal to

send counter proposal to the union and to bargain anew on the economic terms of the CBA is

tantamount to an unfair labor practice under Article 248 of the Labor Code.

Under Article 252 of the Labor Code, both parties are required to perform their mutual obligation tomeet and convene promptly and expeditiously in good faith for the purpose of negotiating an

agreement. The union lived up to this obligation when it presented proposals for a new CBA to GMC

within 3 years from the effectivity of the original CBA. But GMC failed in its duty under Article 252. What

it did was to devise a flimsy excuse, by questioning the existence of the union and the status of its

membership to prevent any negotiation. It bears stressing that the procedure in collective bargaining

prescribed by the Code is mandatory because of the basic interest of the state in ensuring lasting

industrial peace.

The Court of Appeals found that the letters between February to June, 1993 by 13 union members

signifying their resignation from the union clearly indicated that GMC exerted pressure on the

employees. We agree with the Court of Appeals conclusion that the ill-timed letters of resignation from

the union members indicate that GMC interfered with the right of its employee to self-organization.

UNIONS; UNFAIR LABOR PRACTICE; STRIKES; ILLEGAL DISMISSAL

STAMFORD MARKETING CORP., ET AL. VS. JOSEPHINE JULIAN, ET AL.

G.R. No. 145496. February 24, 2004

Facts: On November 2, 1994, Zoilo de la Cruz, president of the Philippine Agricultural Commercial and

Industrial Workers Union (PACIWU-TUCP), sent a letter to Rosario Apacible, treasurer and general

manager of Stamford Marketing Corporation, GSP Manufacturing Corporation, Giorgio Antonio

Marketing Corporation, Clementine Marketing Corporation and Ultimate Concept Phils., Inc. The letter

informed her that the rank-and-file employees of the said companies had formed the Apacible

Enterprises Employees Union-PACIWU-TUCP and demanded that it be recognized. After such notice, the

following three cases arose:

In the First Case, Josephine Julian, president of PACIWU-TUCP, Jacinta Tejada and Jecina Burabod, a

Board Member and a member of the said union, were dismissed. They filed a suit with the Labor Arbiter

alleging that their employer had not paid them with their overtime pay, holiday pay/premiums, rest day

premium, 13th month pay for the year 1994 salaries for services actually rendered, and that illegal

deduction had been made without their consent from their salaries for a cash bond. Stamford alleged


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that the three were dismissed for not reporting for work when required to do so and for not giving

notice or explanation when asked.

In the Second Case, PACIWU-TUCP filed, on behalf of 50 employees allegedly dismissed illegally for

union membership by the petitioners, a case for unfair labor practice against GSP which denied such

averments. GSP countered that the BLR did not list Apacible Enterprises Employees Union as a local

chapter of PACIWU or TUCP. Thus, the strike that said union organized after the GSP refused to

negotiate with them was illegal and that they refused to return to work when asked.

The Third Case was filed for claims of the 50 employees dismissed in the second case. Petitioner

corporations, however, maintained that they have been paying complainants the wages/salaries

mandated by law and that the complaint should be dismissed in view of the execution of quitclaims and

waivers by the private respondents.

The Labor Arbiter ordered the three cases consolidated as the issues were interrelated and the

respondent corporations were under one management.

First Case: The dismissal was illegal and Stamford was ordered to reinstate the complainants as well as

pay the backwages and other benefits claimed. It was held that the reassignment and transfer of the

complainants were forms of interference in the formation and membership of a union, an unfair labor

practice. Stamford also failed to substantiate their claim that the said employees abandoned their

employment. It also failed to prove the necessity of the cash deposit of P2,000 and failed to furnishwritten notice of dismissal to any complainants. Further, it failed to prove payments of the amounts

being claimed.

Second Case: The strike was illegal and the officers of the union have lost their employment status, thus

terminating their employment with GSP. GSP is however ordered to reinstate the complainants who

were members of the union without backwages, save some employees specified. It was established that

the union was not registered, and thus had staged an illegal strike. The officers of the union should be

liable and dismissed, but the members should not, as they acted in good faith in the belief that their

actions were within legal bounds.

Third Case: GSP was ordered to pay each complainant their claims, as computed by each individual. All

other claims were dismissed for lack of merit. The Labor Arbiter found petitioners liable for salary

differentials and other monetary claims for petitioners failure to sufficiently prove that it had paid thesame to complainants as required by law. It was also ordered to return the cash deposits of the

complainants, citing the same reasons as in the First Case.

On appeal, the NLRC affirmed the decision in the First and Third Cases, but set aside the judgment of the

Second Case for further proceedings in view of the factual issues involved.

On May 14, 1996, a Petition to Declare the Strike Illegal was filed which was decided in favor of

Stamford, upholding the dismissal of the union officers. The officers made no prior notice to strike, no

vote was taken among union members, and the issue involved was non-strikable, a demand for salary

increases

On elevation to the appellate court, it was ruled that the officers should be given separation pay, and

that Jacina Burabod and the rest of the members should be reinstated without loss of seniority, plus

backwages. It provided for the payment of the backwages despite the illegality of the strike because the

dismissals were done prior to the strike. Such is considered an unfair labor practice as there was lack of

due process and valid cause. Thus, the dismissed employees were still entitled to backwages and

reinstatement, with exception to the union officers who may be given separation pay due to strained

relations with their employers.

Issues: (1) Whether or not the respondents union officers and members were validly and legally

dismisses from employment considering the illegality of the strike.


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(2) Whether or not the respondents union officers were entitled to backwages, separation pay and

reinstatement, respectively.

Held: (1) The termination of the union officers was legal under Article 264 of the Labor Code as the

strike conducted was illegal and that illegal acts attended the mass action. Holding a strike is a right that

could be availed of by a legitimate labor organization, which the union is not. Also, the mandatory

requirements of following the procedures in conducting a strike under paragraph (c) and (f) of Article

263 were not followed by the union officers.

Article 264 provides for the consequences of an illegal strike, as well as the distinction between officers

and members who participated therein. Knowingly participating in an illegal strike is a sufficient ground

to terminate the employment of a union officer but mere participation is not sufficient ground for

termination of union members. Thus, absent clear and substantial proof, rank-and-file union members

may not be terminated. If he is terminated, he is entitled to reinstatement.

The Court affirmed the ruling of the CA on the illegal dismissal of the union members, as there was non-

observance of due process requirements and union busting by management. It also affirmed that the

charge of abandonment against Julian and Tejada were without credence. It reversed the ruling that the

dismissal was unfair labor practice as there was nothing on record to show that Julian and Tejada were

discouraged from joining any union. The dismissal of the union officers for participation in an illegalstrike was upheld. However, union officers also must be given the required notices for terminating

employment, and Article 264 of the Labor Code does not authorize immediate dismissal of union officers

participating in an illegal strike. No such requisite notices were given to the union officers.

The Court upheld the appellate courts ruling that the union members, for having participated in the

strike in good faith and in believing that their actions were within the bound of the law meant only to

secure economic benefits for themselves, were illegally dismissed hence entitled to reinstatement and

backwages.

(2) The Supreme Court declared the dismissal of the union officers as valid hence, the award of

separation pay was deleted. However, as sanction for non-compliance with the notice requirements for

a lawful termination, backwages were awarded to the union officers computed from the time they were

dismissed until the final entry of the judgment.

JURISDICTION OF THE LABOR ARBITERS AND THE NLRC

EVELYN TOLOSA VS. NATIONAL LABOR RELATIONS COMMISSION

G.R. No. 149578. April 10, 2003

Facts: Captain Virgilio Tolosa was master of the vessel M/V Donna owned by Quana-Kaiun, and was

hired through its manning agent, Asia Bulk Transport Phils., Inc. (Asia Bulk). During channeling activities

upon the vessels departure from Yokohama on November 6, 1992, Capt. Tolosa was drenched with

rainwater. Subsequently, he contracted fever on November 11 which was later on accompanied by loose

bowel movement for the succeeding 12 days. His condition was reported to Asia Bulk and the US Coast

Guard Headquarters in Hawaii on November 15. However, before he could be evacuated, he died on

November 18, 1992.

Evelyn Tolosa, the widow, filed a complaint before the POEA for damages against Pedro Garate, Chief

Mate of the vessel, Mario Asis, Second Mate, Asia Bulk and Quana-Kaiun. The case was transferred to

the NLRC. The Labor Arbiter ruled in favor of the widow, awarding actual damages plus legal interest, as

well as moral and exemplary damages and attorneys fees. On appeal to the NLRC, the decision of the

Labor Arbiter was vacated and the complaint was dismissed for lack of jurisdiction over the subject

matter of the action pursuant to the provisions of the Labor Code, as amended. Sustaining the NLRC, the


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CA ruled that the labor commission had no jurisdiction over the subject matter of the action filed by

petitioner. Her cause did not arise from an employer-employee relation, but from a quasi-delict or tort.

Under Article 217 (a)(4) of the Labor Code which allows an award of damages incident to an employer-

employee relation, the damages awarded were not proper as she is not an employee, but merely the

wife of an employee.

Issues: (1) Whether or not the Labor Arbiter and the NLRC had jurisdiction over petitioners action.

(2) Whether or not the monetary award granted by the Labor arbiter has already reached finality.

Held: (1) The Court affirmed that the claim for damages was filed not for claiming damages under the

Labor Code but under the Civil Code. The Court was convinced that the allegations were based on a

quasi-delict or tort. Also, she had claimed for actual damages for loss of earning capacity based on a life

expectancy of 65 years, which is cognizable under the Civil Code and can be recovered in an action

based on a quasi-delict. Though damages under a quasi-delict may be recoverable under the jurisdiction

of labor arbiters and the NLRC, the relief must be based on an action that has reasonable casual

connection with the Labor Code, labor statutes or CBAs. It must be noted that a workers loss of earning

capacity and backlisting are not to be equated with wages, overtime compensation or separation pay,

and other labor benefits that are generally cognized in labor disputes. The loss of earning capacity is arelief or claim resulting from a quasi-delict or a similar cause within the realm of Civil Law. In the present

case, Evelyn Tolosas claim for damages is not related to any other claim under Article 217, other labor

statutes, or CBAs. She cannot anchor her claim for damages to Article 161 of the Labor Code, which

does not grant or specify a claim or relief. This provision is only a safety and health standard under Book

IV of the same Code. The enforcement of this labor standard rests with the labor secretary. It is not the

NLRC but the regular courts that have jurisdiction over action for damages, in which the employer-

employee relation is merely incidental, and in which the cause of action proceeds from a different

source of obligation such as a tort.

(2) On the finality of the award, the Court ruled that issues not raised in the court below cannot be

raised for the first time on appeal. Thus, the issue being not brought to the attention of the Court of

Appeals first, this cannot be considered by the Supreme Court. It would be tantamount to denial of theright to due process against the respondents to do so.

ABANDONMENT OF WORK; REQUISITES

SAMUEL SAMARCA VS. ARC-MEN INDUSTRIES, INC.

G.R. No. 146118. September 29, 2003

Facts: Samuel Samarca was employed as a laborer by Arc-Men Industries, Inc. On September 26, 1993,

petitioner filed an application for an emergency leave of absence on account of his sons hospitalization.

Upon his return for work, petitioner was immediately served with a notice of respondents order

suspending him for 30 days. Feeling aggrieved, petitioner filed a complaint for illegal suspension against

respondent and its owner. During the pendency of the complaint, petitioners 30-day suspension ended.

Consequently, respondent, in a letter, directed petitioner to report for work immediately. However, he

refused, prompting respondent to send him a Notice to Terminate, directing him to submit, within 5

days, a written explanation why he should not be dismissed from the service for abandonment of work.

For his part, petitioner submitted a letter-reply explaining that because of the pendency of his complaint

for illegal suspension with the Labor arbiter, he could not report for work. Respondent, finding the

petitioners written explanation insufficient, decided to terminate his services via a Notice of

Termination. Consequently, petitioner filed an amended complaint for illegal dismissal.


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Issue: Whether or not petitioner abandoned his work.

Held: To constitute abandonment, two elements must concur: (1) The failure to report for work or

absence without valid or justifiable reason, and (2) a clear intention to sever the employer-employee

relationship manifested by some overt acts. Mere absence is not sufficient. It is the employer who has

the burden of proof to show a deliberate and justified refusal of the employee to resume his

employment without any intention of returning.

The above twin essential requirements for abandonment to exist are not present in the case at bar.

Petitioners absence is not without a justifiable reason. It must be recalled that upon receipt of the

Notice to Terminate by reason of abandonment, petitioner sent respondent a letter explaining that he

could not go back to work because of the pendency of his complaint for illegal suspension. And

immediately after he was dismissed for abandonment of work, he lost no time to amend his complaint

to illegal dismissal. This alone negates any intention on his part to forsake his work. It is a settled

doctrine that the filing of a complaint for illegal dismissal is inconsistent with the charge of

abandonment, for an employee who takes steps to protest his dismissal cannot by logic be said to have

abandoned his work.

ABANDONMENT OF WORK; PROCEDURE FOR TERMINATING AN EMPLOYEE; ILLEGAL DISMISSAL

AGABON VS. NATIONAL LABOR RELATIONS COMMISSION

G.R. No. 158693. November 17, 2004

Facts: Private respondent Riviera Home Improvements, Inc. is engaged in the business of selling and

installing ornamental and construction materials. It employed petitioner Virgilio Agabon and Jenny

Agabon as gypsum board and cornice installers on January 2, 1992 until February 23, 1999 when they

were dismissed for abandonment of work. Petitioners then filed a complaint for illegal dismissal. The

Labor Arbiter rendered a decision declaring the dismissal illegal. On appeal, the NLRC reversed the

decision because it found that the petitioners had abandoned their work and were not entitled to

backwages and separation pay. The Court of Appeals in turn ruled that the dismissal of the petitionerswas not illegal because they had abandoned their employment.

Issue: Whether or not petitioners were illegally dismissed.

Held: The dismissal should be upheld because it was established that the petitioners abandoned their

jobs to work for another company. Private respondent, however, did not follow the notice requirements

and instead argued that sending notices to the last known addresses would have been useless because

they did not reside there anymore. Unfortunately for the private respondent, this is not a valid excuse

because the law mandates the twin notice requirements to the employees last known address. Thus, it

should be held liable for non-compliance with the procedural requirements of due process.

When the dismissal is for a just cause, the lack of statutory due process should not nullify the dismissal,

or render it illegal, or ineffectual. However, the employer should indemnify the employee for the

violation of his statutory rights.

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