337 Phil. 710
KAPUNAN, J.:
The complainants' entitlement to the wage differentials and 13th month pay is not disputed by the respondents. An exemption from the coverage of the Wage Orders NCR No. 01 and NCR No. 01-A is pending action before the Regional Tripartite Wage and Productivity Board, hence, this Office must desist from acting on the issue. The 13th month pay is due for payment a long time ago. Satisfaction must be enforced.Petitioner's appeal to the NLRC was likewise unsuccessful. On 29 November 1993, the NLRC issued a resolution affirming the Labor Arbiter's decision and dismissing petitioner's appeal for lack of merit.[8]
There are information on the record which dispute the claim of the respondents that the complainants abandoned their job. For one, it defies reason that a group of people would leave their job and then fight adds (sic) to win them back. In abandonment, the intent to return to the job is absent, but here, that was manifested as the desire of all. And they submitted their grievances, almost immediately, after they were terminated. They just allowed the new year celebration to pass and they filed the complaint. The complaint-affidavit of the respondent was filed only as an after thought (sic). It was prepared almost one month after the complaint was filed with this Office. Its alleged filing is evendoubtful (sic), because, there was no indication in the complaint-affidavit submitted that it was received by any section in the Department. Indications are, that the respondents terminated the complainants' employment and illegally at that. There was no cause on the part of the complainants to deserve such action. If there was any, the respondents should have notify (sic) the complainants of the nature of their infractions, and, thereafter, conduct an investigation on the matter. Obviously, this procedure was not undertaken. On the other hand, it is something for thought that the dismissal came right after the complainants made demands for the correct payment of their benefits. That makes the dismissal all the more uncalled for.
WHEREFORE, the respondents are hereby ordered to reinstate the complainants to their former positions, without loss of seniority rights and other benefits and with full backwages from the date their salaries were withheld, until they are actually reinstated. Respondents are further directed to pay the complainants their 13th month benefits for 1990, the claim for salary differential must be set aside because the respondents' application for exemption is still pending action before the Regional Tripartite Wage and Productivity Board. The rest of the complaints are dismissed for lack of merit.
SO ORDERED.[7]
In order to support his patently erroneous findings of facts, Labor Arbiter Manuel Asuncion engaged in purely baseless speculations by saying that, "For one, it defies reason that a group of people would leave their job and then fight odds to win them back."[12]and concludes therefrom that the decision of the Labor Arbiter and corresponding resolutions of the NLRC were rendered with grave abuse of discretion.
To constitute abandonment, two elements must concur: (1) the 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. Mere absence is not sufficient. It is the employer who has the burden of proof to show a deliberate and unjustified refusal of the employee to resume his employment without any intention of returning. Gold City failed to discharge this burden. It did not adduce any proof of some overt act of the petitioners that clearly and unequivocally show their intention to abandon their posts. On the contrary, the petitioners lost no time in filing the case for illegal dismissal against them, taking only four days from the time most of them were prevented from entering their work place on 22 August 1991 to the filing of the complaint on 26 August 1991. They cannot, by any reasoning, be said to have abandoned their work, for as we have also previously ruled, the filing by an employee of a complaint for illegal dismissal is proof enough of his desire to return to work, thus negating the employer's charge of abandonment. (Underscoring ours.)Measured against these standard rules, we find no merit in petitioner's assertions. The Labor Arbiter correctly applied the afore-quoted doctrines in the case at bar and we agree with the latter's findings that private respondents did not abandon their employment.
Similarly in Canete v. NLRC,[14] we ruled that:
x x x We find it incongruous for petitioner to give up his job after receiving a mere reprimand from his employer. What is more telling is that on August 19, 1992 or less than a month from the time he was dismissed from service petitioner immediately filed a complaint against his employer for illegal dismissal with a prayer for reinstatement. Petitioner's acts negate any inference that he abandoned his work. Abandonment is a matter of intention and cannot be lightly inferred or legally presumed from certain equivocal acts. To constitute abandonment, there must be clear proof of deliberate and unjustified intent to discontinue the employment. The burden of proving abandonment of work as a just cause for dismissal is on the employer. Private respondent failed to discharge this burden.
Moreover, there was no reason at all and none has been suggested by the petitioner, for the private respondents to abandon their work. No employee with a family to support, like the private respondents, would abandon their work knowing fully well of the acute unemployment and underemployment problem and the difficulty of looking for a means of livelihood. As the Solicitor General stated: "To get a job is difficult; to run from it is foolhardy."In addition, strongly contradicting petitioner's charge of abandonment, is the immediate filing by the private respondents of a complaint against petitioner clamoring for their jobs back. Thus, contrary to petitioner's allegations, the Labor Arbiter's decision is based on plain facts and settled jurisprudence and not on mere speculation.
x x x If indeed they were dismissed, they could have alleged that they received a letter of termination or at least were told not to report for work anymore. The absence of such a material allegation could only mean that the Petitioner never terminated their services. More importantly, the absence of such a material allegation means that Private Respondents have not proved with substantial evidence that they were in fact dismissed from employment[18]Petitioner' s contention is bereft of merit.
6 Respondents called the attention of the complainants upon learning that they had joined the PSSLU union, and forced them to sign a contract which they prepared, for those contractual and casual workers, when complainants refused to sign those papers, respondents got angry and terminated their services on December 27, 1990.[19]and in their Comment private respondents retorted that they "simply found themselves out of (a) job as petitioner simply refused to let them work again."[20]
9 On December 20, 1990, myself and the other officers of Pure Blue Industries, Inc. had an open dialogue with all of them, during which, one of our financiers got disgusted with their unreasonable approaches and told them that they can leave if they want to. They took that statement seriously.[21]WHEREFORE, premises considered, the petition for certiorari is hereby DISMISSED. As to the award of backwages, pursuant to our ruling in Bustamante v. NLRC,[22] private respondents are "entitled to their full backwages, inclusive of allowances and other benefits or their monetary equivalent, from the time their actual compensation was withheld from them up to the time of their actual reinstatement."