44 NS Transport Services Vs ZETA Case Digest

SERIOUS MISCONDUCT
NS TRANSPORT SERVICES, INC. vs. ZETA
FACTS:
- Jose Zaldy N. Zeta was a bus conductor at NS Transport Services, Inc. (NSTSI). On June 2,
1999, he filed with the NLRC a Complaint against NSTSI for illegal dismissal, non-payment of
labor standard benefits, damages, and attorney’s fees. He claimed that beginning October 18,
1998, NSTSI barred him from entering the work premises and refused to give him a job
assignment; that he later found out that NSTSI had terminated his employment effective
November 26, 1998; and that he received no formal termination notice.
- NSTSI explained that Zeta was dismissed for abandonment when he failed to report for work
beginning October 13, 1998 for he had taken up a new employment with another bus company.
- The LA dismissed the Complaint based on the following findings that NSTSI did not terminate
the services of Zeta. On the contrary, Zeta left his work without any justifiable reason. To prove
that complainant was absent without leave (AWOL), testimonial and documentary evidence
were abundantly presented by the respondents showing that Zeta indeed abandoned his job as
bus conductor without notice to the company effective October 12, 1998 and simply did not
report for work anymore.
- The NLRC, affirmed the LA Decision. It also denied Zeta’s Motion for Reconsideration.
- Zeta filed a Petition for Certiorari of which the CA reversed the NLRC and the LA.
ISSUE: W/N the gross negligence of duties and abandonment of work of the employee is a
valid ground for dismissal.
RULING:
The Court sustained the CA findings, the same being more in accord with the facts and law of
the case.
It bears emphasis that for termination of employment on the ground of abandonment to be

considered valid, the employer must prove, by substantial evidence, the concurrence of two
essential requisites: first, the failure of the employee to report for work or his absence from work
without valid or justifiable reason; and second, his clear and deliberate intention to discontinue
his employment. The second requisite, considered to be the more crucial one, may be
established by evidence of overt acts on the part of the employee from which may be inferred a
lack of intention to resume his work.
The evidence of NSTSI does not make out a case of abandonment.
Its evidence of the first requisite consists merely of two letters it purportedly sent to Zeta
requiring him to explain his absences since October 13, 1998. Zeta, however, denied having
received said letters. The CA doubted whether the letters were actually received by Zeta.
We too are convinced that the letters were merely a subterfuge. It is noted that at the bottom of
the letters are imprints of registry receipts but there are missing important details which could
have linked the registry receipts to the letters sent by NSTSI to Zeta. It is doubtful whether the
registry receipts actually refer to the letters; hence, they are not reliable evidence that NSTSI
actually sent the letters and that Zeta received them. The CA did not err in holding that petitioner
failed to prove that due notices were sent to and received by Zeta.
SERIOUS MISCONDUCT
More importantly, the letters, even if real, do not by themselves, prove that Zeta had been
absent since October 13, 1998 and that his absences were without valid or justifiable reason.
The best evidence of absenteeism or absence without leave (AWOL) would have been the
signed original or certified true copies of Zeta's daily time records, which are all accessible to
NSTSI. In its Position Paper, NSTSI cited the alleged records of Zeta as basis for its claim that
the latter had been on AWOL several times. Yet, it did not present any such record even when
this was readily available to it. Such inexplicable failure of NSTSI to adduce said evidence, even
when these are within its custody, could only mean that had said evidence been produced, they
would have negated the claim that Zeta had been on AWOL.
Evidence of the second requisite are just as flawed. In an attempt to prove that it was Zeta who
voluntarily terminated his employment, NSTSI cited the affidavits of its employees that they saw
Zeta serving as conductor in another bus company. NSTSI also alluded to the delay of nine
months before Zeta filed his Complaint as indicative of the latter's lack of interest in resuming his
employment.
WHEREFORE, the petition is DENIED. The Decision and the Resolution of the Court of Appeals
are AFFIRMED. No costs.

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SERIOUS MISCONDUCT

NS TRANSPORT SERVICES, INC. vs. ZETA

It bears emphasis that for termination of employment on the ground of abandonment to be

The evidence of NSTSI does not make out a case of abandonment.

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