PETITIONER Fernando C. Gososo (Gososo) was hired as a sales representative of respondent Leyte Lumber Yard and Hardware Inc. (Leyte Lumber). On Oct. 13, 2008, he filed a complaint for illegal constructive dismissal with money claims against respondents.

In defense, Leyte Lumber alleged that as a company policy, employees were required to submit their applications for leave days before the intended dates to allow the management ample time to approve the application and to adjust the workforce and their workload. On Oct. 10, 2008 Gososo filed a leave of absence for Oct. 11, 2008 purportedly to attend a son’s graduation, in disregard of the rule. He allegedly extended his absence which prompted respondents to issue a memorandum on Oct. 13, 2008 wherein he was requested to report back to work or be considered to have abandoned his work. Gososo however, did not report back to work.

Does the defense of abandonment find merit?

Ruling: No.

Abandonment requires the concurrence of the following: (1) The employee must have failed to report for work or must have been absent without valid or justifiable reason; and (2) There must have been a clear intention to sever the employer-employee relationship manifested by some overt acts. Abandonment is a matter of intention and cannot lightly be presumed from equivocal acts. Absence must be accompanied by overt acts pointing definitely to the fact that the employee simply does not want to work anymore. The burden of proof to show that there was unjustified refusal to go back to work rests on the employer.

Respondents did not discharge this burden of proof of abandonment. They just surmised that petitioner had no intent to return to work when he allegedly went on an unapproved leave of absence on Oct. 11, 2008, of which respondents were also the approving authority. No attendance sheet of any sort was submitted to substantiate this claim by respondents. Neither was it shown that respondents actually denied the application for leave and made the disapproval known to petitioner.

There was also no evidence or mention of the exact number of required days before respondents’ employees could properly file their applications for leave of absence. Nor was it established in the records whether this policy had actually ripened into company practice. To merely state that employees must file their applications “days before” their intended dates of absence is too self-serving to be given credit. Records also fail to show with any clarity whether petitioner had truly violated this rule of prior notice when he filed his application for leave, especially when the said application for leave was not even dated.

It is more curious, misleading even, for respondents to impress upon us that petitioner had absented himself for a prolonged period of time. It was on Oct. 11, 2008, a Saturday, that petitioner supposedly absented himself, and it was just on Oct. 13, 2008, the immediately succeeding Monday, that respondents declared his post to be in danger of being considered abandoned.

Moreover, while respondents issued the Oct. 13, 2008 Memorandum requiring petitioner to return to work, records do not disclose whether petitioner was actually furnished copies of this Memorandum. To claim that petitioner blatantly disregarded respondents’ return-to-work order in their Oct. 13, 2008 Memorandum, when petitioner was never shown to have received a copy of the same, speaks volumes of petitioner’s vague intent to abandon his work and respondents’ attempt to tweak facts in their favor.

In any case, mere absence or simple failure to report for work is not abandonment, more so if the employee was able to lodge his complaint before the labor tribunals with haste. An immediate filing of a complaint for illegal dismissal, more so when it includes a prayer for reinstatement, is inconsistent with a charge of abandonment. Indeed, employees like petitioner herein who take steps to protest their alleged dismissal cannot be said to have abandoned their work. (Fernando C. Gososo vs. Leyte Lumber Yard and Hardware Inc., and Ruben L. Yu, G.R. 205257, Jan. 13, 2021).