Incredible defense

Employers sometimes put up as a defense in illegal dismissal cases, abandonment or refusal to return to work by the employee. To establish such defense however, employers must show that they have complied with the requirement of notice. This is illustrated in this case of Lucy.

Lucy started to work as Executive Pool Secretary of a security agency (DSI) in 1990. Later on however, DSI assigned her to perform menial or insignificant jobs in the branch office allegedly because she turned out to be incompetent. However DSI said that Lucy failed to report for work at said branch so it considered her as “resigned” starting November 1997.

Lucy however claimed that DSI dismissed her on October 31, 1997 without any valid reason, neither was she given any notice and hearing. In fact Lucy filed a complaint for illegal dismissal against DSI in December 1997.

For its defense, DSI countered that Lucy was not dismissed, rather she was the one who severed her connection with DSI by her voluntary and unequivocal acts; that there was no dismissal to speak of since Lucy merely ceased reporting for work.

The Labor Arbiter however found after hearing that Lucy’s employment was indeed terminated without giving her notice and hearing. This finding was affirmed by the NLRC and subsequently by the Court of Appeals (CA).

DSI however still questioned this finding and insisted that it did not dismissed Lucy but she was the one who refused to report for work. Was DSI correct?

No. Such proposition stretches credulity as it is not in accord with human nature for an employee to go through all the trouble of filing a labor case against his or her employer if he or she were not in fact dismissed from employment, In fact DSI itself considered her as “resigned” starting November 1997 which coincides with Lucy’s contention that she was dismissed by DSI on October 31, 1997.

Moreover, the law clearly spells out the manner by which an unjustified refusal to return to work by an employee may be established. Notice to Lucy must have been given by DSI requiring her to report for work with warning concerning her alleged absences. The notice requirement actually consists of two parts to be separately served on the employee to wit: (1) notice to apprise the employee of her absences with a warning concerning a possible severance of employment in the event of an unjustified excuse for such absences, and (2) subsequent notice of the decision to dismiss in the event of the employee’s refusal to pay heed to such warning.

In this case, more than two months had already lapse since Lucy allegedly started to absent herself when she instituted the action for illegal dismissal. During said period of time no action was taken or notice given by DSI regarding Lucy’s absences. This is quite peculiar had Lucy’s employment not been severed at all.

Hence Lucy was indeed dismissed without just cause and without notice and hearing thereby entitling her to reinstatement without loss of seniority rights and other privileges, to her full back-wages, inclusive of allowances, and to her other benefits or their monetary equivalent computed from the time her compensation was withheld from her when she was unjustly terminated up to the time of payment thereof. Since reinstatement is no longer possible due to strained relations, then instead of reinstatement, separation pay equivalent to one month salary for every year of service must be paid to Lucy (Diversified Security Inc. vs. Bautista, G.R. 152234, April 15, 2010). –Jose C. Sison (The Philippine Star)

Note: Books containing compilation of my articles on Labor Law and Criminal Law (Vols. I and II) are now available. Call tel. 7249445.