REPUBLIC OF THE PHILIPPINES

NATIONAL LABOR RELATIONS COMMISSION

3rd Division

PIOMON AGUILAR, ET AL.

(Petitioner),

-versus-

LANZARROTE GREY STEEL NLRC NCR CASE Nos. 30-11-

HOLDINGS, INC., 04656-00
PRESIDENT ROMEO GREY
LANZARROTE
(Petitioner),

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RESOLUTION

Queguilinzarrote, R. E.,

This Court is not unmindful of the rule that in cases of illegal dismissal, the
employer bears the burden of proof to prove that the termination was for a valid or
authorized cause. But before the petitioners must bear the burden of proving that the
dismissal was legal, the respondents must first establish by substantial evidence that
indeed they were dismissed. If there is no dismissal, then there can be no question
as to the legality or illegality thereof.

But if it has been proved by sufficient quantum of evidence that there was
indeed a fact of dismissal, then the burden shifts once more, as aforementioned, to
the employers and in this case, the employer fell short of the requisite quantum
contemplated by law to overcome the presumption that the dismissal was illegal,
there being no sufficient evidence to the contrary.

It was first alleged by the employer that Piomon Aguilar has decidedly
abandoned his work in spite of knowledge of his duties to the company. The

Abandonment is a matter of intention and cannot lightly be presumed from

certain equivocal acts, especially during times of hardship. Thus, we have ruled in a
series of cases that 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. The second element is the more determinative factor, which must be
manifested by some overt acts. 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 Labor Arbiter and This Court is of the consensus that the herein
respondent has not been fully told of the circumstances surrounding the company’s
policy, their claim of illegal protest, and unfair labor practice against the employee
because no proper notice was given. Responent Piomon was informed that the only
reason why he cannot go to work anymore was because he joined the demonstration
against the management. He was prevented to go to work, and was not given any
such payment or compensation. 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. The filing thereof is proof enough of ones desire to return to work,
thus negating any suggestion of abandonment.
 Likewise proven by the Piomon Aguilar that he was coerced by their
department head to just avoid office for the meantime and to just lie-low because the
company might be contemplating on rehiring him again. Piomon for a moment
heeded the call, but contacted the department that he is in need of his salary because
his family needs money for support.

Piomon 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 Aguilar 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. Clearly, the instruction to temporarily lie low was meant to be for a
permanent cessation from work. With the absence of any proof of dire exigency that
would justify the failure to give further assignments, the only logical conclusion is
that respondent was constructively dismissed.

In an illegal dismissal case, the onus probandi rests on the employer, who has
to prove that the dismissal of an employee was for a valid cause. Since petitioners
based their defense on abandonment by respondent, it is likewise incumbent upon
them, as employers, to prove that he clearly, voluntarily, and intentionally
abandoned his work. As previously discussed, it is clear from the evidence on record
that petitioners failed to discharge this burden. As we have consistently affirmed, if
the evidence presented by the employer and the employee are in equipoise, the scales
of justice must be tilted in favor of the latter. Accordingly, the finding of illegal
dismissal must be upheld.
 Article 279 of the Labor Code provides that an employee who is unjustly
dismissed from work shall be entitled to reinstatement without loss of seniority rights
and other privileges; to his full back wages, inclusive of allowances; and to other
applicable benefits or their monetary equivalent computed from the time
compensation was withheld up to the time of actual reinstatement.

This court finds no cogent reason to disturb the ruling of the Labor Arbiter.

WHEREFORE, the decision of the Labor Arbiter is affirmed without

modifications.