Abandonment can be employer’s defense in complaint for illegal dismissal

Dear PAO,
I filed a complaint before the National Labor Relations Commission for illegal dismissal against my employer. During mediation, my employer said that he will not pay a single cent to me because I was the one who abandoned my work. Can you clarify to me this allegation?
Jose

Dear Jose,
Abandonment, under our labor laws, is the deliberate and unjustified refusal of an employee to resume his employment. It is a form of neglect of duty, hence, a just cause for the termination of employment by the employer. For a valid finding of abandonment, two factors should be present: (1) the failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever employer-employee relationship, with the second as the more determinative factor which is manifested by overt acts from which it may be deducted that the employee has no more intention to work. The intent to discontinue the employment must be shown by clear proof that it was deliberate and unjustified (Agabon v. NLRC, 17 November 2004, 442 SCRA 573)

If an employee abandoned his work, the employer has cause or reason not to accept an employee back to work or dismiss the said employee.  But the employer is required, first, to send a notice at the last known address of the employee directing him to report for work before such employee could be dismissed for abandonment (Section 1, Rule XIV, Book V, Rules Implementing the Labor Code).

In labor cases involving complaint for illegal dismissal, the employer has the burden of proving that the termination was for a valid or authorized cause (Ledesma, Jr. v. National Labor Relations Commission, G.R. No. 174585, October 19, 2007, 537 SCRA 358). Abandonment may serve as a defense of an employer in a complaint for illegal dismissal. Since such defense is an admission of dismissal, the employer has the burden of proving the fact of abandonment and his compliance with the procedure under the Rules Implementing the Labor Code to justify the dismissal. If he could not prove this, the employee is considered as illegally dismissed from his employment.

It appears that your case in the National Labor Relations Commission is still in its conciliation or mediation process, wherein the Labor Arbiter exerts all effort for a settlement or to have a compromise agreement.

If you and your employer fail to reach for a settlement, the Labor Arbiter shall order for the submission of a position paper. If in the said pleading your employer would use abandonment as defense, he should prove the validity of his claim in order to justify your dismissal. Otherwise, the Labor Arbiter shall grant you the relief that you prayed for in your complaint. –Persida Acosta, Manila Times

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