Dear Atty. Kathy,
Our company recently changed management and I did not get along with my new department head. I got sick and even during my sick leave, my new head was bothering me with work. I could not take the harassment anymore, so when my sick leave ended, I filed a case for constructive dismissal. When my assistant was looking for me for the clients’ accounts that we were handling, I told her I am not going back to work anymore. A week after that, I received a memo from management directing me to explain my absence without leave and negligence of my job. I told HR that I will not reply to the memo since I already filed a labor case, but the HR Officer said they have not received a copy of my complaint. A relative advised me to answer the memo otherwise the company will think I just abandoned my job. Is my relative correct?
Ariella
Dear Ariella,
According to the Supreme Court, abandonment, as a just and valid cause for termination of employment, is defined as the deliberate and unjustified refusal of an employee to resume employment, and constitutes neglect of duty under the Labor Code. To constitute abandonment, however, there must be a clear and deliberate intent to discontinue one’s employment without any intention of returning. In this regard, two elements must concur: (1) failure to report for work or absence without valid or justifiable reason, and (2) a clear intention to sever the employer-employee relationship, with the second element as the more determinative factor and being manifested by some overt acts. Otherwise stated, absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore.
Based on your narration, after your sick leave ended, you were absent without official leave, and the company sent you a memo to explain your absence and failure to do your job. However, you did not respond to the memo, and you have told your subordinate that you are not going back to work anymore. Your failure to respond to the directive in the company memo, taken together with your absence from work and communication to your subordinate that you are not going back to work anymore, may point to the conclusion that you abandoned your employment.
Although your filing of a complaint for constructive dismissal has been repeatedly held by the Supreme Court to be inconsistent with a charge of abandonment (especially when such complaint is accompanied with a prayer for reinstatement), the act of filing does not foreclose the possibility of abandonment, as this is not the sole indicator in determining the employee’s intent. Thus, if you indeed failed to report to work without any sufficient justification, you may be deemed as having voluntarily abandoned your employment.
(Alma C. Lugawe versus Pacific Cebu Resort International Inc., G.R. 236161, 25 January 2023.)
Atty. Kathy Larios