Abandonment of work, AWOL

1. Concept

Abandonment of work has been construed as “a clear and deliberate intent to discontinue one’s employment without any intention of returning back.” (Demex Rattancraft, Inc. v. Leron, G.R. No. 204288, 08 November 2017)

Abandonment is the deliberate and unjustified refusal of an employee to resume his employment. It constitutes neglect of duty and is a just cause for termination of employment under paragraph (b) of Article 282 of the Labor Code. (Tan Brothers Corporation v. Escudero, G.R. No. 188711, 08 July 2013)

a. Elements of abandonment

To constitute abandonment, two (2) 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, with the second element as the more determinative factor and being manifested by some overt acts. (Borja v. Minoza, G.R. No. 218384, 03 July 2017)

1) Failure to report for work or absence without justification

Mere absence is not sufficient. (Ibid.)

Mere failure to report to work is insufficient to support a charge of abandonment. The employer must adduce clear evidence of the employee’s “deliberate, unjustified refusal… to resume his [or her] employment,” which is manifested through the employee’s overt acts. (Demex Rattancraft, Inc. v. Leron, supra.)

2) Clear intent; Overt acts

Abandonment is a matter of intention and cannot lightly be inferred or legally presumed from certain equivocal acts. For abandonment to be appreciated, there must be a “clear, willful, deliberate, and unjustified refusal of the employee to resume employment.” (Tegimenta Chemical Phils. and Vivian Rose D. Garcia, G.R. No. 175369, 27 February 2013)

Intent to sever the employer-employee relationship can be proven through the overt acts of an employee. However, this intent “cannot be lightly inferred or legally presumed from certain ambivalent acts.” The overt acts, after being considered as a whole, must clearly show the employee’s objective of discontinuing his or her employment. (Demex Rattancraft, Inc. v. Leron, supra.)

Otherwise stated, absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore. (Tan Brothers Corporation v. Escudero, supra.)

b. A just cause for dismissal

Although abandonment of work is not expressly enumerated as a just cause under Article 297 of the Labor Code, jurisprudence has recognized it as a form of or akin to neglect of duty. (Demex Rattancraft, Inc. v. Leron, supra.)

Abandonment constitutes a just cause for dismissal because “[t]he law in protecting the rights of the laborer, authorizes neither oppression nor self-destruction of the employer.” The employer cannot be compelled to maintain an employee who is remiss in fulfilling his duties to the employer, particularly the fundamental task of reporting to work. (Protective Maximum Security Agency, Inc. v. Fuentes, G.R. No. 169303, 11 February 2015)

2. Burden of proof: on employer

The employer has the burden of proof to show a deliberate and unjustified refusal of the employee to resume his employment without any intention of returning. (Borja v. Minoza, supra.)

The burden of proving abandonment is upon the employer who, whether pleading the same as a ground for dismissing an employee or as a mere defense, additionally has the legal duty to observe due process. (Atienza v. Saluta, G.R. No. 233413, 17 June 2019)

3. Incompatible with constructive dismissal

Abandonment is incompatible with constructive dismissal. (Borja v. Minoza, supra.)

4. Immediate filing of illegal dismissal case

An employee who takes steps to protest his dismissal cannot logically be said to have abandoned his work. (Atienza v. Saluta, supra.)

On the theory that the same is proof enough of the desire to return to work, the immediate filing of a complaint for illegal dismissal – more so when it includes a prayer for reinstatement – has been held to be totally inconsistent with a charge of abandonment. (Tan Brothers Corporation v. Escudero, supra.)

To reiterate, abandonment of position is a matter of intention and cannot be lightly inferred, much less legally presumed, from certain equivocal acts. (Claudia’s Kitchen, Inc. v. Tanguin, G.R. No. 221096, 28 June 2017)

Case study

a. Abandonment

Mehitabel, Inc. v. Jufhel L. Alcuizar (2017)

G.R. No. 228701-02, 13 December 2017
The employee was the purchasing manager of the employer, a high-end furniture exporter. After a few months from being hired, complaints about the employee's dismal work performance resulted in delays in teh production and delivery of the company's goods. The HR Officer counselled him on his performance to no avail. Sometime later, the employee left the office and on his way out informed the HR Officer and the security personnel that he was leaving his job.
The HR Officer issued a return to work order via registered mail with notice to explain. While it was received, the employee did ignored the notice. Unknown to the employer, the employee had already filed a complaint for illegal dismissal.
By way of defense, the employer claimed that the employee abandoned his work and was never dismissed.
Resolution: The employee abandoned his work.
The employer "herein issued a Return to Work order to [the employee], which the latter received through registered mail. This circumstance bears more weight and effectively negates [the employee's] self-serving asseveration that he was dismissed from employment; it more than implies that the company still considered [the employee] as its employee..."
The employee's "non-compliance with the directive in the Return to Work..., signifies his intention to sever the employment relation with [the employer], and gives credence to the latter’s claim that it was [the employee] who abandoned his job. Moreover, such omission substantiates the testimonies of [the HR Officer and security personnel] who positively attested to the fact of [the employee's] desertion."
The HR Officer testified that the employee dropped by the former's office and left the company phone and other properties. To which the HR Officer asked how can be reached since he turned over the phone, the employee did not respond.
The security personnel was informed by the employee that he no longer needs to show an exit pass nor he write on the exit logbook since he was quitting his job. The employee confirmed the conversation with the HR Officer. The security personnel wrote the incident on the exit logbook.
"Evident from the foregoing is that there is no dismissal to speak of, let alone one that is illegal. Instead, it was respondent who clearly demonstrated his lack of interest in resuming his employment with petitioner, culminating in abandonment."
The employee "cannot harp on the fact that he filed a complaint for illegal dismissal in proving that he did not abandon his post, for the filing of the said complaint does not ipso facto foreclose the possibility of abandonment. It is not the sole indicator in determining whether or not there was desertion, and to declare as an absolute that the employee would not have filed a complaint for illegal dismissal if he or she had not really been dismissed is non sequitur."

b. No abandonment

Borja v. Minoza
G.R. No. 218384, 03 July 2017
The employees were cooks working for the employer, a restaurant. The employees failed to report for work on certain days. After they were threatened not to report for work anymore, they hurriedly filed the labor complaint.
By way of defense, the employer claimed among others that the employees had abandoned their work.
RESOLUTION: The employee did not abandon his work. The employer was held liable.
“In this case, records show that [the employees] wasted no time in filing a complaint against [the employer] to protest their purported illegal dismissal from employment. As the filing thereof belies [the employer’s] charge of abandonment, the only logical conclusion, therefore, is that [the employees] had no such intention to abandon their work.
Tegimenta Chemical Phils. v. Oco (2013)
G.R. No. 175369, 27 February 2013)
The employee was a material controller. Due to her pregnancy, she incurred numerous absence and tardiness. The owner advised her to take a vacation. When she returned after her pregnancy, she was tols to no longer report to the office effective that day. She immediatel filed the labor complaint for illegal dismissal.
By way of defense, the employer claimed that the employee abandoned her work.
RESOLUTION: The employee did not abandon his work. The employer was held liable.
The nonappearance of the employee at work "was already accepted by the company as having resulted from complications in her pregnancy. In fact, [the owner] herself offered [the employee] a vacation leave. Therefore, given that the absences of the latter were grounded on justifiable reasons, these absences cannot serve as the antecedent to the conclusion that she had already abandoned her job."
"The mere absence of an employee is not sufficient to constitute abandonment. As an employer, [the Company] has the burden of proof to show the deliberate and unjustified refusal of the employee to resume the latter’s employment without any intention of returning."
In this case, [the employer] "failed to discharge its burden of proving that [the employee] desired to leave her job. The courts a quo uniformly found that she had continuously reported for work right after her vacation, and that her office attendance was simply cut off when she was categorically told not to report anymore. These courts even noted that she had also called up the office to follow up her status; and when informed of her definite termination, she lost no time in filing a case for illegal dismissal. Evidently, her actions did not constitute abandonment and instead implied her continued interest to stay employed."
"Here, the mere fact that [the employee] asked for separation pay, after she was told to no longer report for work, does not reflect her intention to leave her job. She is merely exercising her option under Article 279 of the Labor Code, which entitles her to either reinstatement and back wages or payment of separation pay."
Demex Rattancraft, Inc. v. Leron
G.R. No. 204288, 08 November 2017
The employee was a weaver for the employer, a manufacturer of handcrafted rattan products. He was dismissed from service by the Company's foreman and personnel manager. Both accused him of "instigating a campaign to remove [the foreman]. Before [the employee] was dismissed from service, he was given a memorandum stating that the dining chair he had previously weaved for export to Japan was rejected. For this reason, the Company expressed that it would no longer avail of his services."
After filing a labor complaint for illegal dismissal, the Company issued a several return-to-work orders. Due to the employee's failure to report for work, the Company terminated his services on the ground of abandonment.
RESOLUTION: The employee did not abandon his work. The employer was held liable.
[The employer] "point[s] to [the employee's] absences, non-compliance with the return-to-work notices, and his alleged act of crumpling the first return-to-work notice as indicators of abandonment. These acts still fail to convincingly show [the employee's] clear and unequivocal intention to sever his employment."
The employee "filed an illegal dismissal case against [the employer]... the day after he was unceremoniously dismissed by his superiors... [The employer] deny [the employee's] arbitrary dismissal and claim that [the employee] abandoned his work..."
The employer's "narrative would mean that [the employee] instituted an illegal dismissal complaint right after his first day of absence. This is illogical. There was no unequivocal intent to abandon. [The employee even pursued the illegal dismissal case after it was dismissed without prejudice on the ground of improper venue."
The employee's "non-compliance with the return-to-work notices and his alleged act of crumpling the first return-to-work notice are equivocal acts that fail to show a clear intention to sever his employment. Strained relations caused by being legitimately disappointed after being unfairly treated could explain the employee's hesitation to report back immediately. If any, his actuations only explain that he has a grievance, not that he wanted to abandon his work entirely."
Tan Brothers Corporation v. Escudero
G.R. No. 188711, 08 July 2013
The employee was a bookkeeper of the employer, a real estate business. She alleged that her monthly salary was not being paid on time. After the Company's offices were renovated, her office was rented out and she was no longer given assignments. She was constrained to stop reporting for work due to her financial condition. Thus, she filed an illegal dismissal complaint.
By way of defense, the employer claimed that she was properly paid and that she abandoned her work when she sopped reporting.
RESOLUTION: The employee did not abandon his work. The employer was held liable.
"Viewed in the light of [the employee's] persistence in reporting for work despite the irregular payment of her salaries starting July 2003, we find that her subsequent failure to do so as a consequence of [the employers'] non-payment of her salaries in May 2004 is hardly evincive of an intention to abandon her employment. Indeed, mere absence or failure to report for work, even after a notice to return work has been served, is not enough to amount to an abandonment of employment.
"The same may be said of the CA’s rejection of the employer’s contention that the employee signified her intention to sever the parties’ employer-employee relationship when she illegally appropriated for herself the corporation’s typewriter and took its payrolls, vouchers and other material documents. Since unsubstantiated accusation, without more, is not synonymous with guilt, the CA correctly brushed aside [the employee's] supposed infraction which [the employer] reported to the barangay authorities of Seaside, Isabela City only on 6 September 2004 or after the filing of the complaint a quo."
Protective Maximum Security Agency, Inc. v. Fuentes
G.R. No. 169303, 11 February 2015
The employee was a security guard of the employer, a security services firm. He was posted at a security checkpoint. Sometime later, a group of armed men ransacked the post and took the firearms and personal items therein, as well as inflicted violence on the employee and the other security guards. The security guards reported the incident at the police station. Due to witnesses pointing to the employee as being involved, the police filed a criminal complaint against the employee and detained him. During detention, the employee claimed that he was mauled and tied by personnel of the employer. Eventually, the case would be dismissed. Thereafter, the employee filed a complaint for illegal dismissal.
By way of defense, the employer denied having dismissed the employee and instead claimed that he abandoned his work for failing to report to his immediate supervisor.
RESOLUTION: The employee did not abandon his work. The employer was held liable.
“There is no abandonment in this case.
“The first element of abandonment is the failure of the employee to report to work without a valid and justifiable reason. [The employer] asserts that [the employee] failed to report for work immediately after his release from prison. He also failed to abide by company procedure and report to his immediate superior. According to [the employer], [the employee's] actions constitute a failure to report to work without a valid and justifiable reason.
“The National Labor Relations Commission and the Court of Appeals found that [the employee's] failure to return to work was justified because of his detention and its adverse effects. The Court of Appeals found that [the employer] did not refute the allegation that [the employee], while in the custody of the police, suffered physical violence in the hands of its employees. Thus, the Court of Appeals gave credence to the report submitted by Inspector Escartin, which stated that [the employee] was ‘so traumatized that he actually asked to remain in the custody of the police because he feared for his life.’ The Court of Appeals further found that respondent experienced intense fear, ‘manifest[ed] by the fact that he left the custody of the police only when his mother accompanied him.’
“Thus, the intervening period when [the employee] failed to report for work, from [the employee's] prison release to the time he actually reported for work, was justified. Since there was a justifiable reason for [the employee's] absence, the first element of abandonment was not established.
“The second element is the existence of overt acts which show that the employee has no intention to return to work. [The employer] alleges that since [the employee] 'vanished' and failed to report immediately to work, he clearly intended to sever ties with [the employer].
“However, [the employee] reported for work after August 15, 2001, when the criminal Complaint against him was dropped. Further, [the employer] refused to allow [the employee] to resume his employment because [the employer] believed that [the employee] was a member of the New People’s Army and had already hired a replacement.
“[The employee's] act of reporting for work after being cleared of the charges against him showed that he had no intention to sever ties with his employer. He attempted to return to work after the dismissal of the Complaint so that [the employer] would not have any justifiable reason to deny his request to resume his employment.
“Thus, [the employee's] actions showed that he intended to resume working for [the employer]. The second element of abandonment was not proven, as well.”

Disclaimer: All information is for educational and general information only. These should not be taken as professional legal advice or opinion. Please consult a competent lawyer to address your specific concerns. Any statements or opinions of the author are solely his own and do not reflect that of any organization he may be connected.

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