Abandonment of work, AWOL - Employment Law PH (2023)

1. Concept

Abandonment of work is interpreted as "clear and deliberate termination of employment, with no intention of returning". (Demex Rattancraft, Inc. v. Leron, G.R. No. 204288, 8 November 2017)

Separation is an employee's willful and unreasonable refusal to return to work. It constitutes negligence and is just cause for termination of employment under Section 282(b) of the Labor Code. (Tan Brothers Corporation 诉 Escudero, G.R. No. 188711, July 8, 2013)

a. elements of renunciation

To constitute a waiver, two (2) elements must simultaneously be met:

1) Unauthorized absence from work or absence from work, and,

2) There is an obvious intention to sever labor-capital relations, of which the second element is a more decisive factor, and it is manifested through some obvious behaviors. (Borja v Minosa, G.R. No. 218384, July 3, 2017)

1) Unexcused absenteeism or absenteeism

Mere absence is not enough. (ditto.)

Simply not showing up for work is not enough to support an abandonment charge. The employer must show clear evidence that the employee "willfully and unreasonably refused ... to resume his [or her] employment," as demonstrated by the employee's overt conduct. (Demex Rattancraft, Inc. v. Leron,ditto.)

2) Clear intent; overt act

Waiver is a matter of intent and cannot be easily inferred or legally inferred from certain ambiguous acts. To understand a waiver, there must be "a clear, willful, deliberate and unreasonable refusal by the employee to return to employment." (Tegimenta Chemical Phils。和 Vivian Rose D. Garcia, G.R. No. 175369, 27 February 2013)

An intent to sever the relationship between the employer and the employee may be demonstrated by the employee's overt conduct. However, such intent "cannot be easily inferred or legally inferred from certain ambiguous conduct". Overt behavior, after comprehensive consideration, must clearly indicate the purpose of the laborer to terminate the labor relationship. (Demex Rattancraft, Inc. v. Leron,ditto.)

Stated otherwise, the absence must be accompanied by clear behavior that unambiguously indicates that the employee simply does not want to work anymore. (Tan Brothers Corporation 诉 Escudero,ditto.)

b. just cause for dismissal

Although Article 297 of the Labor Code does not explicitly list quitting a job as a valid reason, jurisprudence has seen it as a form or akin to negligence. (Demex Rattancraft, Inc. v. Leron,ditto.)

A waiver that constitutes just cause for dismissal because "laws protecting the rights of laborers neither authorize oppression nor self-destruction against employers." Employers must not be compelled to retain employees who fail to perform their duties to the employer, especially the basic Task. (Protective Maximum Security Agency, Inc. v. Fuentes, G.R. No. 169303, 11 February 2015)

2. Burden of Proof: Employer

The burden of proof is on the employer to prove that the employee willfully and unreasonably refused to return to work without an intention to return. (Borja v Minosa,ditto.)

The burden of proving waiver is on the employer, who has a legal obligation to observe due process, whether as grounds for firing an employee or simply as a defense. (Atienza by Saluta, G.R. No. 233413, June 17, 2019)

3. Incompatible with constructive dismissal

Waiver is incompatible with constructive dismissal. (Borja v Minosa,ditto.)

An employee who takes steps to protest his dismissal cannot logically be said to have given up his job. (Atienza by Saluta,ditto.)

In theory, this was enough evidence of a desire to return to work, so filing an immediate wrongful dismissal complaint—especially when it included prayers for reinstatement—was seen as entirely inconsistent with the charge of being abandoned. (Tan Brothers Corporation 诉 Escudero,ditto.)

To reiterate, dropping a stance is a deliberate matter that cannot be easily inferred from some ambiguous behavior, let alone legally presumed. (Claudia's Kitchen, Inc. by Tanguin, G.R. No. 221096, June 28, 2017)

case analysis

a. give up

Mehitabel, Inc. v. Yufher Alqueza (2017)G.R. No. 228701-02, 13 December 2017 The employee is the purchasing manager of the employer, a high-end furniture exporter. A few months into the job, the employee received complaints about poor job performance, causing delays in the production and delivery of the company's goods. Human resources officials advised him on his performance, to no avail. After some time, the employee leaves the office and on the way out notifies the HR officer and security that he is leaving. The Human Resources Officer issued a return to work order by certified mail with notice instructions. After receiving the notification, the employee did ignore the notification. The employee has filed a wrongful dismissal complaint without the employer's knowledge. As a defense, the employer asserted that the employee gave up his job and was never fired. Solution: The employee quits his job. The Employer hereby sends the Work Order to [employee] with a return order, which is received by registered mail. This situation is more important and effectively negates [employee's] self-interested assertion that he was fired; it doesn't just mean that the company still considers [employee] as its employee..."employee" does not comply with Return to Work Instructions in  …", indicate his intention to sever employment with [employer], and lend credence to the latter's claim that [employee] abandoned his job. Furthermore, this omission confirms that [human resources officer and security personnel ], who actively testified to the fact that [the employee] deserted. The former’s office and belongings such as the company phone were left behind. The HR officer asked how to get in touch because he handed over the phone and the employee did not answer. The employee told the security staff that he was no longer Needed to show exit pass and didn't need to write on the exit log as he was quitting his job. The employee confirmed the conversation with the HR officer. Security wrote this on the exit log. Petitioner, ultimately resulted in an abandonment." The employee "cannot rely on the fact that he filed a wrongful dismissal complaint to demonstrate that he did not abandon his job, since filing such a complaint does not, in itself, preclude abandonment. It is not the only indicator for determining whether there was a dismissal, It is illogical that there should never be a wrongful dismissal complaint filed if the employee has not actually been fired."

b. did not give up

Borja v MinosaG.R. No. 218384, 03 July 2017 The employee is a chef working for a restaurant of the employer. Employees do not show up for work on certain days. After being threatened not to come to work, they rushed to file labor complaints. In defense, the employer claimed that the employee had given up his job. Solution: Employees didn't give up their jobs. Employers are being held accountable. “In this case, the records show that [employee] immediately filed a complaint with [employer] to protest their alleged wrongful dismissal. Since its filing did not match [employer’s] allegations of abandonment of work, the only logical conclusion is that [employee ] with no intention of giving up work.

Tegimenta Chemical Phils. v Oco (2013)G.R. No. 175369, Feb. 27, 2013) The employee is a materials controller. Due to her pregnancy, she had numerous absences and tardies. The boss suggested that she go on vacation. When she returned from her pregnancy, she was told to no longer report to the office, effective that day. She immediately filed a labor lawsuit for wrongful dismissal. In defense, employers claim that employees have given up their jobs. Solution: Employees didn't give up their jobs. Employers are being held accountable. The employee's absence from work "has been accepted by the company as a result of pregnancy complications. In fact, [the owner] himself provided the leave to [the employee]. Therefore, given that the latter's absences were justified, these absences cannot be regarded as her Antecedents to the conclusion that work has been abandoned. The burden of proof is on the company] to prove that the employee willfully and unreasonably refused to resume the latter's employment without intent to return." In this case, the [employer] "failed to discharge its burden of proof [Employee] courts have unanimously found that she continued to work after her leave and that her hours were cut off when she was explicitly told not to come in. These courts even noted that she called the office to follow up on her identity; when Upon learning that she would be fired, she immediately filed a lawsuit for wrongful dismissal. Clearly, her actions did not constitute a waiver, but implied that she had an interest in continuing to work." She intended to leave her job. She was simply exercising her right of option under section 279 of the Labor Code, which entitles her to reinstatement and arrears of wages or payment of severance pay. "

Demex Rattancraft, Inc. v. LeronG.R. No. 204288, November 8, 2017 The employee is a weaver for the employer, a manufacturer of handmade rattan products. He was fired by the company's foreman and personnel manager. Both accused him of "fomenting a campaign to oust [the foreman]. Before [the employee] was fired, he received a memo stating that a dining chair he had previously woven for export to Japan had been rejected. To this end, the company said No longer using his services. The company terminated the employee’s service on grounds of abandonment because the employee did not show up for work. Resolution: The employee did not abandon his job. The employer was held accountable. [Employer] “pointed out [employee]’s absence, non-compliance with return to work notices , and his so-called behavior of crumpling the first rework notice as indicators these behaviors still fail to convincingly demonstrate [the employee's] clear and unequivocal intent to terminate the employment relationship. "The employee" filed a wrongful dismissal lawsuit against [employer]... the day after he was unceremoniously fired by his superiors...[employer] denies that [employee] fired arbitrary and claims that [ The employee] gave up his job... The "employer" narrative implies that [the employee] filed a wrongful dismissal complaint in absentia after his first day on the job, which is illogical and has no clear intent to leave. [The employee also pursued a case of wrongful dismissal following an unbiased dismissal, citing improper venue. ] The employee’s “failure to comply with the return to work notice and his alleged behavior of crumpling the first return to work notice was ambiguous and did not show a clear intention to terminate the employment relationship. After being treated unfairly, he was rightfully disappointed and The resulting tension could explain the employee's reluctance to report it immediately. If anything, his impulsiveness could only reflect a grievance, not his desire to quit his job entirely."

Tan Brothers Corporation 诉 EscuderoG.R. No. 188711, July 8, 2013 The employee is a bookkeeper for the employer, a real estate company. She claims her monthly salary was not paid on time. After the company's office building was renovated, her office was rented out, and she was no longer assigned tasks. Due to the financial situation, she was forced to stop going to work. As a result, she filed a wrongful dismissal complaint. In defense, the employer claimed she was being paid properly and had relinquished her job when she stopped reporting. Solution: The employee did not give up his job. Employers are being held accountable. "Given that [the employee] was paid irregularly beginning in July 2003 but continued to show up for work, we found that her failure to do so later due to [the employer's] failure to pay her in May 2004 was hardly an indication of her intention to give up her job. In fact, mere absence from work or absence from work, even after the notice to return to work has been served, is not sufficient to constitute a renunciation of the employer's belief that the employee illegally seized the company's typewriter and took the company's pay slips, vouchers and other materials, indicating that she intends to cut off both parties. Employer-employee relationship of .Document. Due to unsubstantiated allegations, no more, not tantamount to guilt, CA rightly ignores [employee's] presumed violations, [employer] only on September 6, 2004 or In submitting the complaint status.”

Protective Maximum Security Agency, Inc. v. FuentesG.R. Number 169303, February 11, 2015 The employee is a security guard for the employer, a security services company. He was dispatched to a security checkpoint. Some time later, a group of armed men ransacked the post, took guns and personal items inside, and committed violence against the employee and other security guards. Security guards reported the case to the police station. Police filed criminal charges against the employee, who was detained by the police after witnesses pointed to the employee. While in custody, the employee claimed that he was beaten and tied up by his employer's agents. Ultimately, the case will be dismissed. The employee subsequently lodged a complaint on the grounds of wrongful dismissal. As a defense, the employer denied firing the employee and claimed that the employee gave up his job for failing to report to his immediate supervisor. Resolution: The employee did not give up work. Employers are held accountable. "There is no desertion in this case." The first element of desertion is that the employee is absent from work without a valid reason. [Employer] claimed that [employee] did not report to work immediately after his release from prison. He also failed to follow company procedures and report to his superiors. According to [employer], [employee]'s conduct constituted absence from work without good reason. Because of his detention and its adverse effects. The Court of Appeal ruled that [employer] had not contested allegations that [employee] suffered physical violence from its employees while in police custody. The Court of Appeal therefore accepted the report submitted by Inspector Escartin, which stated that [the employee] was "so traumatized that he feared for his life and in fact requested to remain in police custody". The appeal further found that the defendant experienced intense fear, "manifested by the fact that he left the police custody only in the company of his mother." The first element of waiver does not hold because [the employee's] absence was legitimately justified." The second element is the presence of clear behavior that indicates the employee has no intention of returning to work. "[Employer] stated that he clearly intended to dissociate from [employer] because [employee] 'disappeared' and did not report to work immediately. "However, [employee] went to work after August 15, 2001 when when revoked. In addition, [employer] refused to return [employee] to work because [employer] believed that [employee] was a member of the NPA and had hired a replacement. "[Employee]'s conduct to go to work after clearing the charges against him shows that he has no intention of severing ties with his employer. He attempted to return to work after the complaint was dismissed so that [the employer] would not have any valid reason to deny him reinstatement. request.” Thus, [the employee] behaves as if he intends to serve the [employer]. The second element of the waiver was also not confirmed. "