Case Digest: Josan v. Aduna

G.R. No. 190794 : February 22, 2012




Petitioners are engaged in the trucking business and hired Aduna as a delivery truck driver. He was tasked to make deliveries of various ingredients used in the production of poultry feeds. His payment was on a per trip basis.

Parungao, the sole proprietor of petitiners told Aduna to come to work later in the day to make deliveries. However when Aduna arrived, Parungao noticed that he was drunk and so refused to allow him to work. Aduna responded discourteously as he threw the keys of the truck. Aduna did not report for work until about 50 days from the date of the incident. When he returned, he manifested that he doesn't want to work in the company anymore and thus he is requesting for the release of a certificate of employment.

Respondent denies being drunk when he went to work and all the incidents appertaining thereto. Thereafter, respondent claims that he was no longer given any delivery assignments and was even prevented from entering company premises. He argues that petitioner voluntarily issued to him a Certificate of Employment without his asking, and that he was told to look for work for the time being. Consequently he filed a case for illegal dismissal against petitioners. The complaint was dismissed by the LA there was a just cause for the respondent's dismissal.

The National Labor Relations Commission (NLRC) reversed the LAs finding and ruled that respondent had been illegally dismissed. According to the NLRC, there was no showing that petitioners exerted efforts to question the absences of respondent. They relied heavily on the information allegedly given by their company secretary that Aduna was no longer interested in the job. The Commission reasoned that it was difficult to believe that a worker would forgo his job simply by abandoning it, without any alternative source of income or prospect of another employment

The CA affirmed the Decision and the Resolution of the NLRC. It ruled that respondents failure to come to work for 50 days was not indicative of his intention to discontinue employment. According to the appellate court, he did not report for work, as he was told to lie low and to wait for further notice. The court also held that Adunas request for a certificate of employment did not, ipso facto, equate with abandonment. Hence this Petition for Review on Certiorari.

ISSUE: Whether or respondent was illegally dismissed.

HELD: The CA's decision was sustained.


Abandonment is a matter of intention and cannot lightly be presumed from certain equivocal acts, especially during times of hardship. There are two elements that must concur in order for an act to constitute abandonment: (1) failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever the employer-employee relationship.Mere absence or failure to report for work does not, ipso facto, amount to abandonment of work.To prove abandonment, the employer must show that the employee deliberately and unjustifiably refused to resume his employment without any intention of returning.

The NLRC and the CA found that the true reason why respondent did not report for work for about 50 days was that he had been told by petitioners to lie low. This is a finding of fact, which we shall no longer disturb. Thus, when respondent realized that he was no longer going to receive work assignments, he wasted no time in filing a case for illegal dismissal against petitioners. Employees who take steps to protest their dismissal cannot logically be said to have abandoned their work. A charge of abandonment is totally inconsistent with the immediate filing of a complaint for illegal dismissal.

Respondent must therefore be deemed to have been constructively dismissed. There is constructive dismissal when continued employment is rendered impossible, unreasonable, or unlikely. In this case, although Aduna agreed to lie low because of the incident, it became clear that petitioners no longer had the intention to give him future assignments. In fact, they already deemed the issuance of the Certificate of Employment as a sign of abandonment of work. The continued failure of petitioners to offer him a new assignment makes the former liable for constructive dismissal.