CASE BrieF 2011-920


Mere absence or failure to report for work is not tantamount to abandonment of work. 


CASE: Mario B. Dimagan vs. DACWORKS United, Inc. [G.R. No. 191053 November 28, 2011]

PONENTE: Associate Justice Estela Perlas-Bernabe

SUBJECT:

  1. LABOR LAW:
    i. Abandonment
  2. REMEDIAL LAW:
    i. Forum Shopping

FACTS: Mario started working for DACWORKS, Inc. (DACWORKS) as Officer-in-Charge (OIC) for mechanical installation.

Thereafter, Mario was downgraded from his post as OIC to supervisor. Then, the following year, he was made to work as a mere technician. When he vocally expressed his concerns regarding his assignments, the management told him not to report for work anymore.

Mario filed a complaint for illegal dismissal before the Labor Arbiter against DACWORKS, INC.

On appeal, the NLRC rendered a Resolution affirming the Labor Arbiter’s Decision.

DACWORKS sought reconsideration of the NLRC’s Resolution. However, in his Comment/Opposition thereto, Mario alleged that DAKWORKS “tampered” the mailing of their motion for reconsideration to make it appear that it was mailed on the last day for filing thereof, or on June 25, 2007, at the Post Office. To prove the same, Mario submitted a Certification from the postmaster of the Post Office stating that there was no record of registered mails posted on June 25, 2007 by Atty. Gerardo B. Collado, counsel for DACWORKS.

The NLRC issued a Resolution denying respondents’ motion for reconsideration without, however, passing judgment on the allegation that DACWORKS manipulated the filing of its motion for reconsideration. The NLRC merely directed DACWORKS to file a comment and/or explanation within five (5) days from receipt of the aforesaid Resolution.

Pending the investigation of the NLRC as regards the issue on alleged “tampering” by DACWORKS, the latter filed a petition for certiorari under Rule 65 before the CA. The CA reversed and set aside the Resolutions of the NLRC upon a finding that it was Mario who abandoned his employment by failing to report for work or having gone AWOL.

Mario filed a petition for review on certiorari under Rule 45 before the Supreme Court, he claim, among others, that DACWORKS is guilty of forum shopping having failed to disclose the pendency of an investigation being conducted by the NLRC with regard to the allegation of tampering in the mailing of DACWORKS’ motion for reconsideration.

ISSUES:

A) Whether DACWORKS is guilty of forum shopping.

B) Whether or not there is abandonment.

RULING:

A) DACWORKS is NOT guilty of forum shopping .

 “Forum shopping exists when a party avails himself of several judicial remedies in different courts, simultaneously or successively, all substantially founded on the same transactions and the same essential facts and circumstances, and all raising substantially the same issues either pending in, or already resolved adversely by, some other court.”

The elements of forum shopping are: (1) identity of parties, or at least such parties as represent the same interests in both actions; (2) identity of rights asserted and reliefs prayed for, the relief being founded on the same set of facts; and (3) the identity of the two preceding particulars, such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.

There was no confluence of the foregoing elements in the instant case. When DACWORKS filed its petition for certiorari before the CA, its motion for reconsideration before the NLRC had already been resolved on the merits, and the only incident left for the NLRC to adjudicate was the alleged mail tampering of DACWAG. The pendency of such investigation, however, is merely incidental, such that its resolution will not amount to res judicata in the petition for certiorari before the CA.

B) Mario did not abandon his work.

“Abandonment is the deliberate and unjustified refusal of an employee to resume his employment.” To constitute abandonment of work, two elements must concur: “(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 on the part of the employee to sever the employer-employee relationship manifested by some overt act.”

The employer bears the burden of proof to show the deliberate and unjustified refusal of the employee to resume his employment without any intention of returning.

Abandonment is a matter of intention and cannot lightly be presumed from certain equivocal acts.   To constitute abandonment, there must be clear proof of deliberate and unjustified intent to sever the employer-employee relationship. Clearly, the operative act is still the employee’s ultimate act of putting an end to his employment.

Mere absence or failure to report for work is not tantamount to abandonment of work.   

Mario’s failure to report for work was caused by the unwarranted demotion in rank that was imposed upon him by DACWORKS, not by any intention to sever employment ties with DACWORKS. And his filing of the instant complaint for illegal dismissal indubitably negates the allegation of abandonment.


THINGS DECIDED:

A) The elements of forum shopping are: (1) identity of parties, or at least such parties as represent the same interests in both actions; (2) identity of rights asserted and reliefs prayed for, the relief being founded on the same set of facts; and (3) the identity of the two preceding particulars, such that any judgment rendered in the other action will, regardless of which party is successful, amount to res judicata in the action under consideration.

B) When DACWORKS filed its petition for certiorari before the CA, its motion for reconsideration before the NLRC had already been resolved on the merits, and the only incident left for the NLRC to adjudicate was the alleged mail tampering of DACWAG. The pendency of such investigation, however, is merely incidental, such that its resolution will not amount to res judicata in the petition for certiorari before the CA.

C) To constitute abandonment of work, two elements must concur: “(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 on the part of the employee to sever the employer-employee relationship manifested by some overt act.

D) To constitute abandonment, there must be clear proof of deliberate and unjustified intent to sever the employer-employee relationship. Clearly, the operative act is still the employee’s ultimate act of putting an end to his employment.

 ‘Stand by things decided’ ~ Stare Decisis


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Read Full Text:
Mario B. Dimagan vs. DACWORKS United, Inc. (G.R. No. 191053 November 28, 2011)

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