When is an employee considered to have abandoned his work?

When an employee absents himself from work without justifiable reason and performs an overt act showing his/her intention to sever the employer-employee relationship, then he is deemed to have abandoned his work, for which the employer may justifiably dismiss the employee.

This was the ruling in the recent case of Diamond Taxi and/or Bryan Ong v. Felipe Llamas, Jr., G.R. No. 190724, 12 March 2014, where the Supreme Court had the occasion to reiterate the doctrine governing abandonment of work as a just cause for dismissal.

In the said case, which involves the dismissal of a taxi cab driver, the only proof presented by the operator (Diamond Taxi) was the photocopy of their attendance book (showing that Llamas had been absent for several days without official leave) and their memorandum to Llamas for insubordination and refusal to heed management instructions. The Supreme Court explained that these were insufficient to prove just cause for Llamas' dismissal, as these do not show the required uneqivocal intention on the part of Llamas to abandon his work. Mere absence from work does not constitute abandonment of work.

To constitute abandonment of work, the Supreme Court held that the following should be present: first, the employee must have failed to report for work or must have been absent without valid or justifiable reason; and second, there must have been a clear intention on the part of the employee to sever the employer-employee relationship manifested by some overt act.

“The employee's absence should be accompanied by overt acts that unerringly point to the employee's clear intention to sever the employment relationship. And, to successfully invoke abandonment, whether as a ground for dismissing an employee or as a defense, the employer bears the burden of proving the employee's unjustified refusal to resume his employment.”

What further proved the absence of the intention to abandon work in the above case was the fact that Llamas took no time to file his complaint for illegal dismissal against Diamond Taxi thus proving that he had every intention to return to work and that there was really no abandonment to begin with.

So keeping in mind the foregoing observations, before an employer decides to use abandonment of work as a ground for dismissing an employee, the employer should first keep in mind that mere absence from work is not enough. There must be, in addition, certain acts on the part of the employee, which would show his deliberate and unjustified refusal to resume his employment or the absence of any intention of returning.

For employees who have been dismissed due to abandonment, on the other hand, take note that your acts before, during, and after the dismissal may be used for or against you, just as in the case of Diamond Taxi where the filing of the illegal dismissal complaint was used as proof of the absence of abandonment on the part of Llamas.

Would the Supreme Court's ruling change if Llamas filed his Complaint, not just two (2) days after the dismissal, but, let's say, a year after? You decide.