AWOL – Based from Labor Code of the Philippines

and DOLE
Abandonment is 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. (Tan Brothers Corporation v.
Escudero, G.R. No. 188711, 08 July 2013)
a. Elements of abandonment
To constitute abandonment, two (2) 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. (Borja v.
Minoza, G.R. No. 218384, 03 July 2017)
1) Failure to report for work or absence without justification
Mere absence is not sufficient. (Ibid.)
Mere failure to report to work is insufficient to support a charge of abandonment. The
employer must adduce clear evidence of the employee’s “deliberate, unjustified refusal… to
resume his [or her] employment,” which is manifested through the employee’s overt acts.
(Demex Rattancraft, Inc. v. Leron, supra.)
2) Clear intent; Overt acts
Abandonment is a matter of intention and cannot lightly be inferred or legally presumed
from certain equivocal acts. For abandonment to be appreciated, there must be a “clear,
willful, deliberate, and unjustified refusal of the employee to resume employment.”
(Tegimenta Chemical Phils. and Vivian Rose D. Garcia, G.R. No. 175369, 27 February
2013)
Intent to sever the employer-employee relationship can be proven through the overt acts of
an employee. However, this intent “cannot be lightly inferred or legally presumed from
certain ambivalent acts.” The overt acts, after being considered as a whole, must clearly
show the employee’s objective of discontinuing his or her employment. (Demex Rattancraft,
Inc. v. Leron, supra.)
Otherwise stated, absence must be accompanied by overt acts unerringly pointing to the
fact that the employee simply does not want to work anymore. (Tan Brothers Corporation v.
Escudero, supra.)
b. A just cause for dismissal
Although abandonment of work is not expressly enumerated as a just cause under Article
297 of the Labor Code, jurisprudence has recognized it as a form of or akin to neglect of
duty. (Demex Rattancraft, Inc. v. Leron, supra.)
Abandonment constitutes a just cause for dismissal because “[t]he law in protecting the
rights of the laborer, authorizes neither oppression nor self-destruction of the employer.”
The employer cannot be compelled to maintain an employee who is remiss in fulfilling his
duties to the employer, particularly the fundamental task of reporting to work. (Protective
Maximum Security Agency, Inc. v. Fuentes, G.R. No. 169303, 11 February 2015)

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AWOL – Based from Labor Code of the Philippines
and DOLE
2. Burden of proof: on employer
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. (Borja v.
Minoza, supra.)
The burden of proving abandonment is upon the employer who, whether pleading the same
as a ground for dismissing an employee or as a mere defense, additionally has the legal
duty to observe due process. (Atienza v. Saluta, G.R. No. 233413, 17 June 2019)
3. Incompatible with constructive dismissal
Abandonment is incompatible with constructive dismissal. (Borja v. Minoza, supra.)
4. Immediate filing of illegal dismissal case
An employee who takes steps to protest his dismissal cannot logically be said to have
abandoned his work. (Atienza v. Saluta, supra.)
On the theory that the same is proof enough of the desire to return to work, 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.
(Tan Brothers Corporation v. Escudero, supra.)
To reiterate, abandonment of position is a matter of intention and cannot be lightly inferred,
much less legally presumed, from certain equivocal acts. (Claudia’s Kitchen, Inc. v.
Tanguin, G.R. No. 221096, 28 June 2017)
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Case study
a. Abandonment
Mehitabel, Inc. v. Jufhel L. Alcuizar (2017)

G.R. No. 228701-02, 13 December 2017

The employee was the purchasing manager of the employer, a high-end furniture exporter.
After a few months from being hired, complaints about the employee's dismal work
performance resulted in delays in teh production and delivery of the company's goods. The
HR Officer counselled him on his performance to no avail. Sometime later, the employee
left the office and on his way out informed the HR Officer and the security personnel that he
was leaving his job.
The HR Officer issued a return to work order via registered mail with notice to explain.
While it was received, the employee did ignored the notice. Unknown to the employer, the
employee had already filed a complaint for illegal dismissal.

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AWOL – Based from Labor Code of the Philippines
and DOLE
By way of defense, the employer claimed that the employee abandoned his work and was
never dismissed.
Resolution: The employee abandoned his work.
The employer "herein issued a Return to Work order to [the employee], which the latter
received through registered mail. This circumstance bears more weight and effectively
negates [the employee's] self-serving asseveration that he was dismissed from
employment; it more than implies that the company still considered [the employee] as its
employee..."
The employee's "non-compliance with the directive in the Return to Work..., signifies his
intention to sever the employment relation with [the employer], and gives credence to the
latter’s claim that it was [the employee] who abandoned his job. Moreover, such omission
substantiates the testimonies of [the HR Officer and security personnel] who positively
attested to the fact of [the employee's] desertion."
The HR Officer testified that the employee dropped by the former's office and left the
company phone and other properties. To which the HR Officer asked how can be reached
since he turned over the phone, the employee did not respond.
The security personnel was informed by the employee that he no longer needs to show an
exit pass nor he write on the exit logbook since he was quitting his job. The employee
confirmed the conversation with the HR Officer. The security personnel wrote the incident
on the exit logbook.
"Evident from the foregoing is that there is no dismissal to speak of, let alone one that is
illegal. Instead, it was respondent who clearly demonstrated his lack of interest in resuming
his employment with petitioner, culminating in abandonment."
The employee "cannot harp on the fact that he filed a complaint for illegal dismissal in
proving that he did not abandon his post, for the filing of the said complaint does not ipso
facto foreclose the possibility of abandonment. It is not the sole indicator in determining
whether or not there was desertion, and to declare as an absolute that the employee would
not have filed a complaint for illegal dismissal if he or she had not really been dismissed is
non sequitur."
b. No abandonment
Borja v. Minoza
G.R. No. 218384, 03 July 2017
The employees were cooks working for the employer, a restaurant. The employees failed to
report for work on certain days. After they were threatened not to report for work anymore,
they hurriedly filed the labor complaint.
By way of defense, the employer claimed among others that the employees had abandoned
their work.
RESOLUTION: The employee did not abandon his work. The employer was held liable.

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AWOL – Based from Labor Code of the Philippines
and DOLE
“In this case, records show that [the employees] wasted no time in filing a complaint against
[the employer] to protest their purported illegal dismissal from employment. As the filing
thereof belies [the employer’s] charge of abandonment, the only logical conclusion,
therefore, is that [the employees] had no such intention to abandon their work.
Tegimenta Chemical Phils. v. Oco (2013)
G.R. No. 175369, 27 February 2013)
The employee was a material controller. Due to her pregnancy, she incurred numerous
absence and tardiness. The owner advised her to take a vacation. When she returned after
her pregnancy, she was tols to no longer report to the office effective that day. She
immediatel filed the labor complaint for illegal dismissal.
By way of defense, the employer claimed that the employee abandoned her work.
RESOLUTION: The employee did not abandon his work. The employer was held liable.
The nonappearance of the employee at work "was already accepted by the company as
having resulted from complications in her pregnancy. In fact, [the owner] herself offered [the
employee] a vacation leave. Therefore, given that the absences of the latter were grounded
on justifiable reasons, these absences cannot serve as the antecedent to the conclusion
that she had already abandoned her job."
"The mere absence of an employee is not sufficient to constitute abandonment. As an
employer, [the Company] has the burden of proof to show the deliberate and unjustified
refusal of the employee to resume the latter’s employment without any intention of
returning."
In this case, [the employer] "failed to discharge its burden of proving that [the employee]
desired to leave her job. The courts a quo uniformly found that she had continuously
reported for work right after her vacation, and that her office attendance was simply cut off
when she was categorically told not to report anymore. These courts even noted that she
had also called up the office to follow up her status; and when informed of her definite
termination, she lost no time in filing a case for illegal dismissal. Evidently, her actions did
not constitute abandonment and instead implied her continued interest to stay employed."
"Here, the mere fact that [the employee] asked for separation pay, after she was told to no
longer report for work, does not reflect her intention to leave her job. She is merely
exercising her option under Article 279 of the Labor Code, which entitles her to either
reinstatement and back wages or payment of separation pay."
Demex Rattancraft, Inc. v. Leron
G.R. No. 204288, 08 November 2017
The employee was a weaver for the employer, a manufacturer of handcrafted rattan
products. He was dismissed from service by the Company's foreman and personnel
manager. Both accused him of "instigating a campaign to remove [the foreman]. Before [the
employee] was dismissed from service, he was given a memorandum stating that the dining
chair he had previously weaved for export to Japan was rejected. For this reason, the
Company expressed that it would no longer avail of his services."

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AWOL – Based from Labor Code of the Philippines
and DOLE
After filing a labor complaint for illegal dismissal, the Company issued a several return-to-
work orders. Due to the employee's failure to report for work, the Company terminated his
services on the ground of abandonment.
RESOLUTION: The employee did not abandon his work. The employer was held liable.
[The employer] "point[s] to [the employee's] absences, non-compliance with the return-to-
work notices, and his alleged act of crumpling the first return-to-work notice as indicators of
abandonment. These acts still fail to convincingly show [the employee's] clear and
unequivocal intention to sever his employment."
The employee "filed an illegal dismissal case against [the employer]... the day after he was
unceremoniously dismissed by his superiors... [The employer] deny [the employee's]
arbitrary dismissal and claim that [the employee] abandoned his work..."
The employer's "narrative would mean that [the employee] instituted an illegal dismissal
complaint right after his first day of absence. This is illogical. There was no unequivocal
intent to abandon. [The employee even pursued the illegal dismissal case after it was
dismissed without prejudice on the ground of improper venue."
The employee's "non-compliance with the return-to-work notices and his alleged act of
crumpling the first return-to-work notice are equivocal acts that fail to show a clear intention
to sever his employment. Strained relations caused by being legitimately disappointed after
being unfairly treated could explain the employee's hesitation to report back immediately. If
any, his actuations only explain that he has a grievance, not that he wanted to abandon his
work entirely."
Tan Brothers Corporation v. Escudero
G.R. No. 188711, 08 July 2013
The employee was a bookkeeper of the employer, a real estate business. She alleged that
her monthly salary was not being paid on time. After the Company's offices were renovated,
her office was rented out and she was no longer given assignments. She was constrained
to stop reporting for work due to her financial condition. Thus, she filed an illegal dismissal
complaint.
By way of defense, the employer claimed that she was properly paid and that she
abandoned her work when she sopped reporting.
RESOLUTION: The employee did not abandon his work. The employer was held liable.
"Viewed in the light of [the employee's] persistence in reporting for work despite the
irregular payment of her salaries starting July 2003, we find that her subsequent failure to
do so as a consequence of [the employers'] non-payment of her salaries in May 2004 is
hardly evincive of an intention to abandon her employment. Indeed, 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.
"The same may be said of the CA’s rejection of the employer’s contention that the
employee signified her intention to sever the parties’ employer-employee relationship when
she illegally appropriated for herself the corporation’s typewriter and took its payrolls,

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AWOL – Based from Labor Code of the Philippines
and DOLE
vouchers and other material documents. Since unsubstantiated accusation, without more, is
not synonymous with guilt, the CA correctly brushed aside [the employee's] supposed
infraction which [the employer] reported to the barangay authorities of Seaside, Isabela City
only on 6 September 2004 or after the filing of the complaint a quo."
Protective Maximum Security Agency, Inc. v. Fuentes
G.R. No. 169303, 11 February 2015
The employee was a security guard of the employer, a security services firm. He was
posted at a security checkpoint. Sometime later, a group of armed men ransacked the post
and took the firearms and personal items therein, as well as inflicted violence on the
employee and the other security guards. The security guards reported the incident at the
police station. Due to witnesses pointing to the employee as being involved, the police filed
a criminal complaint against the employee and detained him. During detention, the
employee claimed that he was mauled and tied by personnel of the employer. Eventually,
the case would be dismissed. Thereafter, the employee filed a complaint for illegal
dismissal.
By way of defense, the employer denied having dismissed the employee and instead
claimed that he abandoned his work for failing to report to his immediate supervisor.
RESOLUTION: The employee did not abandon his work. The employer was held liable.
“There is no abandonment in this case.
“The first element of abandonment is the failure of the employee to report to work without a
valid and justifiable reason. [The employer] asserts that [the employee] failed to report for
work immediately after his release from prison. He also failed to abide by company
procedure and report to his immediate superior. According to [the employer], [the
employee's] actions constitute a failure to report to work without a valid and justifiable
reason.
“The National Labor Relations Commission and the Court of Appeals found that [the
employee's] failure to return to work was justified because of his detention and its adverse
effects. The Court of Appeals found that [the employer] did not refute the allegation that [the
employee], while in the custody of the police, suffered physical violence in the hands of its
employees. Thus, the Court of Appeals gave credence to the report submitted by Inspector
Escartin, which stated that [the employee] was ‘so traumatized that he actually asked to
remain in the custody of the police because he feared for his life.’ The Court of Appeals
further found that respondent experienced intense fear, ‘manifest[ed] by the fact that he left
the custody of the police only when his mother accompanied him.’
“Thus, the intervening period when [the employee] failed to report for work, from [the
employee's] prison release to the time he actually reported for work, was justified. Since
there was a justifiable reason for [the employee's] absence, the first element of
abandonment was not established.
“The second element is the existence of overt acts which show that the employee has no
intention to return to work. [The employer] alleges that since [the employee] 'vanished' and
failed to report immediately to work, he clearly intended to sever ties with [the employer].

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AWOL – Based from Labor Code of the Philippines
and DOLE
“However, [the employee] reported for work after August 15, 2001, when the criminal
Complaint against him was dropped. Further, [the employer] refused to allow [the
employee] to resume his employment because [the employer] believed that [the employee]
was a member of the New People’s Army and had already hired a replacement.
“[The employee's] act of reporting for work after being cleared of the charges against him
showed that he had no intention to sever ties with his employer. He attempted to return to
work after the dismissal of the Complaint so that [the employer] would not have any
justifiable reason to deny his request to resume his employment.
“Thus, [the employee's] actions showed that he intended to resume working for [the
employer]. The second element of abandonment was not proven, as well.”

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