Tan Brothers Corporation of Basilan City vs. Escudero (2013)

Tan Brothers Corporation of Basilan City vs.
Escudero (2013)
FACTS:
 In July 1991, respondent Edna Escudero was hired as bookkeeper by petitioner

Tan Brothers Corporation of Basilan City.
 On September 1, 2004, Escudero filed against Tan Brothers a complaint for

illegal dismissal, underpayment of wages, cost of living allowance and 13th
month pay.
 Escudero alleged that starting July 2003, her monthly salary of ₱2,500.00 was
not paid on time by Tan Brothers. Tan Brothers allegedly rented out the office
space Escudero used to occupy and ceased giving her further assignments. This
constrained Escudero to stop reporting for work because of her financial
condition.
 On the other hand, Tan Brothers contended that Escudero was paid a daily
wage of ₱155.00, and she abandoned her employment when she stopped
reporting for work in July 2003.
 Aside from taking with her most of the corporation’s payrolls, vouchers and
other material documents, Tan Brothers maintained that, without its knowledge
and consent, Escudero appropriated for herself an Olivetti typewriter worth
₱15,000.00. With Escudero’s refusal for the return of the typewriter, Tan
Brothers lodged a complaint with the barangay authorities.
 The Labor Arbiter ruled that Tan Brothers constructively dismissed Escudero
from employment. The decision of the Labor Arbiter was affirmed by the NLRC
and the CA.
PETITIONER’S CONTENTION:
 Tan Brothers argued that Escudero abandoned her employment and that the
same was not negated by the filing of her complaint for illegal dismissal more
than one year after she stopped reporting for work.
ISSUE: Whether or not Escudero abandoned her employment, notwithstanding the

fact that she filed a complaint for illegal dismissal against Tan Brothers.
RULING: NO (the petition is DENIED; The decision of the CA is AFFIRMED.)
RATIONALE: The Supreme Court defined abandonment as the deliberate and

unjustified refusal of an employee to resume his employment. It constitutes neglect of
duty and is a just cause for termination of employment under paragraph (b) of Article
282 of the Labor Code.
To constitute abandonment, there must be a clear and deliberate intent to discontinue
one's employment without any intention of returning. In this regard, two elements
must concur: (1) failure to report for work or absence without valid or justifiable
reason, and (2) a clear intention to sever the employer-employee relationship, with the
second element as the more determinative factor and being manifested by some overt
acts.
The Supreme Court ruled that the employer has the burden of proof to show a
deliberate and unjustified refusal of the employee to resume his employment without
any intention of returning. Furthermore, the immediate filing of a complaint for illegal
dismissal – more so when it includes a prayer for reinstatement – has been held to be
totally inconsistent with a charge of abandonment. In the case at bar, the record
shows that Tan Brothers were not able to prove that Escudero had abandoned her
employment in July 2003.
The Supreme Court further ruled that abandonment is a matter of intention

and
cannot be presumed from certain equivocal acts. In the case at bar, Escudero’s
persistence in reporting for work despite the irregular payment of her salaries starting
July 2003 and her subsequent failure to do so as a consequence of Tan Brothers’ non-
payment of her salaries in May 2004 is hardly evincive of an intention to abandon her
employment.
Also, mere absence or failure to report for work, even after a notice to return work has
been served, is not enough to amount to an abandonment of employment. Considering
that a notice directing Escudero to return to work was not even issued in the
premises, the Supreme Court ruled that the CA is correct in ruling out Tan Brother’s
defense of abandonment.
The Supreme Court further ruled that

in order to terminate an employee’s services for
a just cause, it is essential that the two-notice requirement must be complied with
by the employer: a) a written notice containing a statement of the cause for the
termination to afford the employee ample opportunity to be heard and defend himself
with the assistance of his representative, if he so desires; and b) if the employer
decides to terminate the services of the employee, the employer must notify him in
writing of the decision to dismiss him, stating clearly the reason therefor. The
requirement of these notices is not a mere technicality, but a requirement of due
process to which every employee is entitled.
The CA was also correct in ruling that Escudero was constructively dismissed by Tan
Brothers which, as employer, had the burden of proving that said employee was
dismissed for a just and valid cause. The fact that Escudero was deprived of office
space, was not given further work assignment and was not paid her salaries until she
was left with no choice but stop reporting for work all combine to make out a clear
case of constructive dismissal.
**Having been constructively dismissed, Escudero was correctly found entitled to

backwages and attorney’s fees by the Labor Arbiter, the NLRC and the CA.
ABANDONMENT OF WORK
 It is the deliberate and unjustified refusal of an employee to resume his

employment. It is a form of neglect of duty; hence, a just cause for termination
of employment under paragraph (b) of Article 282 of the Labor Code.
Requisites:
1. The employee must have failed to report for work or must have been absent
without a valid or justifiable cause reason; and
2. There must have been a clear intention on the part of the employee to sever the
employer-employee relationship manifested by some overt act.
Some Principles on Abandonment:
 Mere absence is not enough to constitute abandonment.

 Clear intention to sever employment relationship is necessary.
 An employee who stopped working because of her mistaken belief that she has
been dismissed is not guilty of abandonment.
 Abandonment is a factual issue.
 Employer has the burden of proof to prove abandonment.
 There is no abandonment when it was the employer who prevented the workers
from reporting for work.
 Due process in abandonment cases consists only of the service of two (2)
notices to the employee:
a. First notice directing the employee to explain why he should not be
declared as having abandoned his job; and
b. Second notice to inform him of the employer’s decision to dismiss
him on the ground of abandonment.
 No hearing is required to validly dismiss an employee for abandonment.
 Notices in abandonment cases must be sent to employee’s last known address
per record of the company. The employer need not look for the employee’s
current whereabouts.
 Service of the notices of abandonment of work after the six-month period of
“floating status” is not valid.
 Immediate filing of a complaint for illegal dismissal praying for reinstatement
negates abandonment.
 Lapse of time between dismissal and filing of a case is not a material indication
of abandonment. Hence, lapse of 2 years and 5 months or 20 months or 9
months or 8 months before filing the complaint for illegal dismissal is not an
indication of abandonment. Under the law, the employee has a 4-year
prescriptive period within which to institute his action for illegal dismissal.
 The fact that an employee filed a complaint for illegal dismissal is not by itself
sufficient indicator that he had no intention of deserting his employment if the
totality of his antecedent acts palpably display the contrary.
 Filing of a case to pre-empt investigation of the administrative case is
tantamount to abandonment.
 When what is prayed for in the complaint is separation pay and not
reinstatement, the filing of complaint does not negate abandonment.
 It is abandonment when what is prayed for in the complaint is separation pay
and it was only in the position paper that reinstatement was prayed for.
 Employment in another firm coinciding with the filing of complaint does not
indicate abandonment.
 Offer of reinstatement by employer during proceedings before Labor Arbiter and
refusal by employee does not indicate abandonment but more of a symptom of
strained relations between the parties.
 An employee may be absolved from the charge of abandonment of work but
adjudged guilty of AWOL. These two grounds are separate and distinct from
each other.
 An employee who failed to report for work after the expiration of the duly
approved leave of absence is considered to have abandoned his job.
 An employee who failed to comply with the order for his reinstatement is
deemed to have abandoned his work.
 An employee who, after being transferred to a new assignment, did not report
for work anymore is deemed to have abandoned his job.
 An employee who deliberately absented from work without leave or permission
from his employer for the purpose of looking for a job elsewhere is deemed to
have abandoned his work.
 Absence to evade arrest is not a valid justification. To do so would be to place
an imprimatur on the employee’s attempt to detail the normal course of the
administration of justice.
 Employer’s insistence on commission of wrongful acts like estafa and/or
qualified theft by the employees negates the charge of abandonment. Rather, it
strengthens the finding of petitioner’s discrimination, insensibility and
antagonism towards the employees which gave no choice to the latter except to
forego their employment.
Reference: Labor Bar Review 2019 Supreme Court Syllabus, J.G. Chan

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Tan Brothers Corporation of Basilan City vs.

 In July 1991, respondent Edna Escudero was hired as bookkeeper by petitioner

 On September 1, 2004, Escudero filed against Tan Brothers a complaint for

ISSUE: Whether or not Escudero abandoned her employment, notwithstanding the

RULING: NO (the petition is DENIED; The decision of the CA is AFFIRMED.)

RATIONALE: The Supreme Court defined abandonment as the deliberate and

The Supreme Court further ruled that abandonment is a matter of intention

The Supreme Court further ruled that

**Having been constructively dismissed, Escudero was correctly found entitled to

 It is the deliberate and unjustified refusal of an employee to resume his

Some Principles on Abandonment:

 Mere absence is not enough to constitute abandonment.

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