Almirante: Illegal dismissal | SunStar

Almirante: Illegal dismissal

Time to read
2 minutes
Read so far

Almirante: Illegal dismissal

Friday, January 12, 2018

ON June 7, 2010, petitioner Ernesto Brown, a maintenance electrician, filed a complaint for illegal dismissal with money claims against respondents Marswin Marketing, Inc. and Sany Tan.

He alleged that on May 28, 2010, he reported at the respondents’ office and was told that it was his last day of work. Thereafter, he was no longer admitted back to work.

Respondents averred that during petitioner’s eight months of employment, they received negative reports about his work ethics, competence, and efficiency.

On May 28, 2010, they summoned petitioner to be at their main office to discuss the complaints of the warehouse manager and the warehouse supervisor.Petitioner excused himself purportedly to get in touch with his wife. However, he never returned and no longer reported for work.

In their position paper, they attached the Sinumpang Salaysay executed by Bernadette S. Azucena, their accounting supervisor and human resource head, stating the alleged complaints she received against petitioner and the events that transpired during the May 28, 2010 meeting.

The Labor Arbiter (LA) found petitioner illegally dismissed. The National Labor Relations Commission (NLRC) affirmed the LA decision. The Court of Appeals (CA) annulled and set aside the NLRC resolution and found that petitioner was legally dismissed.

Did the CA err?

Ruling: Yes.

Here, Brown contends that on May 28, 2010, his employer informed him that it was already his last day of work; and, thereafter, he was no longer admitted back to work.

On the other hand, Marswin/Tan confirmed having summoned Brown on May 28, 20l0 but they denied that he was dismissed, but that he left the meeting and since then never returned for work.

Nonetheless, apart from the allegation of abandonment, Marswin/Tan presented no evidence proving that Brown failed to return without justifiable reasons and had clear intentions to discontinue his work.

In fact, in her affidavit, Azucena did not specify any overt act on the part of Brown showing that he intended to cease working for Marswin. At the same time, Azucena did not establish that Marswin, on its end, exerted effort to convince Brown to return for work, if only to show that Marswin did not dismiss him and it was Brown who actually refused to return to work. And neither did Marswin send any notice to Brown to warn him that his supposed failure to report would be deemed as abandonment of work.

Clearly from the foregoing, Marswin failed to discharge the burden of proving that Brown abandoned his work.

In addition, on June 7, 2010, or just 10 days after Brown’s last day at work (May 28, 2010), he already filed an illegal dismissal suit against his employer. Such filing conveys his desire to return, and strengthens his assertion that he did not abandon his work. To add, in his complaint, Brown prayed for reinstatement, which further bolsters his intention to continue working for Marswin, and negates abandonment.

Indeed, the immediate filing of an illegal dismissal case especially so when it includes a prayer for reinstatement is totally contrary to the charge of abandonment.

Furthermore, Marswin/Tan presented the affidavit of Azucena, their accounting supervisor and HR head, as proof that Brown committed abandonment. However, aside from being insufficient, self-serving, and unworthy of credence, such affidavit did not allege any actual complaint against Brown when Marswin summoned him on May 28, 2010.

In said affidavit, Azucena did not at all specify the name of any officer or employee against whom Brown allegedly committed an infraction, and neither did any of these persons submit their own affidavits to prove that Brown should be disciplined by his employer.


Given all these, there is clearly no showing that Brown committed abandonment; instead, evidence proved that he was illegally dismissed from work.

Thus, as properly found by the LA and affirmed by the NLRC, by reason of his illegal termination, Brown is entitled to reinstatement without loss of seniority rights, and to full backwages, which include allowances and other benefits or their monetary equivalent, from the time his compensation was withheld until his actual reinstatement. (Del Castillo, J., SC 1st Division, Ernesto Brown vs. Marswin Marketing, Inc. and Sany Tan, G.R. No. 206891, March 15, 2017).

Published in the SunStar Cebu newspaper on January 13, 2018.

Latest issues of SunStar Cebu also available on your mobile phones, laptops, and tablets. Subscribe to our digital editions at and get a free seven-day trial.

View Comments