367 Phil. 259
MENDOZA, J.:
WHEREFORE, judgment is rendered declaring the complainant Victorio Turing was illegally dismissed. Accordingly, respondent Metro Transit Organization, Inc. is hereby directed to REINSTATE him as Train Operator within three days from the date complainant would present himself for that purpose, without loss of seniority rights and with payment of backwages equivalent to six months, or the amount of TWENTY-FOUR THOUSAND NINE HUNDRED PESOS (P24,900.00).On appeal, the Labor Arbiter's decision was affirmed by the NLRC. Petitioner moved for a reconsideration, but its motion was denied. Hence, this petition for certiorari alleging grave abuse of discretion by the NLRC for denying petitioner's right as employer to discipline its employees. Petitioner maintains that private respondent was guilty of abandonment of work.
Judgment is likewise hereby rendered declaring that complainant Reynaldo Pohol was dismissed for a just cause and after due process. Consequently, his instant complaint is hereby DISMISSED for lack of merit.
Respondent is likewise assessed the amount of P2,490.00 by way of attorney's fees.
SO ORDERED.
The notice of termination dated March 29, 1990 addressed to complainant Turing shows that he was dismissed for abandonment of work for having incurred a total of 17 days of absence without official leave and after his explanation was found unmeritorious. This absence refers to the period from February 17, 20, & 21, 1990 to March 13, 1990 when he submitted his explanation. It was therefore complainant's absences during that period that was the "just cause" referred to by respondent because the former's absence of ten days in December, 1989 was already the subject of his three-day suspension (Annex "1" Respondent's PP).In affirming the Labor Arbiter's decision, the NLRC stated:[7]
The problem experienced by complainant was about his wife having left him and their six children (Annex "4", Ibid; Complainant's PP, p. 4). Everybody will perhaps agree that the problem was too personal and so serious that anyone affected would surely lose concentration in his job especially during the early stages of its occurrence and discovery. We note from complainant's handwritten explanation (Annex "5", Respondents' PP) that he was thankful to God that "hindi niya tinutulutan na ako ay panlabuan ng isipan" and resolved to face the problem. To our mind, complainant's plea for understanding and forgiveness should have merited respondent's kind consideration. Needless to say, no husband of sane mind would expect any problem of that nature and perhaps only a few would be able to maintain his mental composure. Respondent should have considered that complainant's job involves many passengers and any moment of mental lapse on his part while the train moves on would surely endanger so many lives. In short, we believe that there was really no "just cause" for complainant Turing's dismissal.
We are [not] impressed with the submission of respondent that complainant Turing has abandoned his work during the period the absences in question were incurred. While it is true that the respondent submitted proof that it exerted efforts to contact the complainant pursuant to legal procedure, yet on the March 6, 1990 home visit conducted by Social Worker Emma M. Luciano, the complainant personally and unequivocably signified interest to return to work on March 15, 1990. The Social Worker Report clearly disclosed the fact that the complainant expressed that he really needed his job for his children. The report also stated that the complainant even talked with Jordan Basa, TCAD Clerk of the respondent, apparently regarding his scheduled reporting for work. We also took into account the complainant's letter dated March 12, 1990 to the respondent (respondent's position paper) detailing expression of regrets regarding his absences and the cause why the same was incurred. Also taken into account is the letter dated March 13, 1990 (Annex 5) of complainant Turing assuring management of his attendance for work now that his family problems are already normalized.Indeed, for abandonment of work to be a just and valid ground for dismissal, there must be a deliberate and unjustified refusal on the part of an employee to resume his employment. The burden of proof is on the employer to show an unequivocal intent on the part of the employee to discontinue employment.[8] To warrant a finding of abandonment, there must be evidence not only of the failure of an employee to report for work or his absence without valid or justifiable reason, but also of his intention to sever the employer-employee relationship. The second element is the more determinative factor, being manifested by overt acts.[9]
In the instant case, the main reason of complainant's dismissal was anchored on abandonment arising from his seventeen (17) days of total absences from work without the company's permission. Thus, the main point in controversy hinges on the merit and validity for which the absence was availed. We have taken into account the admission made by the complainant regarding his unauthorized absence not only from the statement he made before the Social Worker who attended to his case but also before the respondent company under a subsequent letter on March 12, 1990. As correctly pointed out by the Labor Arbiter who rendered the decision, the problem that confronted the complainant was very personal and too serious that any one affected would surely lose concentration in his job especially during the early stages of its occurrence and discovery and that is followed by the further observation that complainant's plea for understanding and forgiveness should have merited kind consideration. The Labor Arbiter also observed correctly that the nature of the complainant's job involves safety of passengers and mental lapse on his part, being a train operator, would surely endanger many lives. More importantly, we believe the purpose of the law in requiring respondent to exert efforts to contact the complainant under the doctrine of abandonment is to determine the legal propriety in the expected dismissal of an employee who is being cited for abandonment. The mere act of undertaking effort of locating complainant does not automatically confer legality in the exercise of management right to dismiss on the pretext of abandonment. Judging from the surrounding circumstances, specifically the nature the absence was committed, the admission made, his repentance and the promise made to report normally for work after recovering from deep encounter with his marital problem, the dismissal of complainant Turing should have been cautiously studied and examined since it affects one's property which is protected against undue deprivation. We find the absence of the complainant not willful as to be characterized for a total relinquishment of one's job. In instant case, respondent's act in dismissing complainant was inappropriate and without legal basis. The Labor Arbiter, in ruling for the complainant, did not err. Respondent's appeal does not persuade us. As aptly pointed out by our Supreme Court, unauthorized absence does not amount to gross neglect of duty or abandonment (Velasco vs. Inciong, 164 SCRA 775, August 4, 1998).