G.R. No.

119243 April 17, 1997 "Sa dahilan po na ako ay hindi nakapagpaalam sainyo (sic)
dahil inuwi ko ang mga anak ko sa Samar dahil ang asawa ko
BREW MASTER INTERNATIONAL INC., petitioner, ay lumayas at walang mag-aalaga sa mga anak ko. Kaya
vs. naman hindi ako naka long distance or telegrama dahil wala
NATIONAL FEDERATION OF LABOR UNIONS (NAFLU), ANTONIO D. ESTRADA and akong pera at ibinili ko ng gamot ay puro utang pa.
HONORABLE NATIONAL LABOR RELATIONS COMMISSION, (Third
Division), respondents. Finding said explanation unsatisfactory, on 16 June 1993, respondent thru its
Sales Manager, Mr. Henry A. Chongco issued a Notice of Termination which
reads:

DAVIDE, JR., J.: "We received your letter of explanation dated May 21, 1993
but we regret to inform you that we do not consider it valid.
This is a special civil action for certiorari seeking the reversal of the 7 October 1994 You are aware of the company Rules and Regulations that
decision  of the National Labor Relations Commission (NLRC) in NLRC Case No. 00-06-
1 absence without permission for six (6) consecutive working
04136-93 (CA No. L-007370-94), which modified the 11 July 1994 decision  of the Labor
2 days is considered abandonment of work.
Arbiter by directing there instatement of private respondent Antonio D. Estrada, the
complainant, without loss of seniority rights and benefits. In view of the foregoing, the company has decided to
terminate your employment effective June 17, 1993 for
Private respondent National Federation of Labor Unions (NAFLU), a co-complainant in the abandonment of work.
labor case, is a labor union of which complainant is a member.
Hence, this complaint.
The factual and procedural antecedents are summarized in the decision of the Labor Arbiter
which we quote verbatim: Complainants contend that individual complainant's dismissal was done
without just cause; that if was not sufficiently established that individual
Complainant was first employed by respondent on 16 September 1991 as complainant's absence from April 19, 1993 to June 16, 1993 are unjustified;
route helper with the latest daily wage of P119.00. From 19 April 1993 up to that the penalty of dismissal for such violation is too severe; that in imposing
19 May 1993, for a period of one (1) month, complainant went on absent such. penalty, respondent should have taken into consideration
without permission (AWOP). On 20 May 1993, respondent thru Mr. Rodolfo complainant's length of service and as a first offender, a penalty less punitive
Valentin, sent a Memo to complainant, to wit: will suffice such as suspension for a define period, (Position Paper,
complainants).
"Please explain in writing within 24 hours of your receipt of
this memo why no disciplinary action should be taken against Upon the other hand, respondent contends that individual complainant was
you for the following offense: dismissed for cause allowed by the company Rules and Regulations and the
Labor Code; that the act of complainant in absenting from work for one (1)
You were absent since April 19, 1993 up to May 19, 1993. month without official leave is deleterious to the business of respondent; that
it will result to stoppage of production which will not only destructive to
respondent's interests but also to the interest of its employees in general; that
For your strict compliance." the dissmisal of complainant from the service is legal, (Position Paper,
respondent). 3

In answer to the aforesaid memo, complainant explained:

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The Labor. Arbiter dismissed the complaint for lack of merit, citing the principle of managerial termination of employment. Dismissal is too severe a penalty. For one, the
control, which recognizes the employer's prerogative to prescribe reasonable rules and mere fact that complainant-appellant is a first offender must be considered in
regulations to govern the conduct of his employees. The principle allows the imposition of his favor. Besides, it is generally impossible for an employee to anticipate
disciplinary measures which are necessary for the efficiency of both the employer and the when he would be ill or compelled to attend to some family problems or
employees. In complainant's case, he persisted in not reporting for work until 16 June 1993 emergency like in the case at bar.
notwithstanding his receipt of the memorandum requiring him to explain his absence without
approval. The Labor Arbiter, relying on Sheomart, Inc. vs. NLRC,  thus concluded:
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Reliance on the ruling enunciated in the cited case of Shoemart Inc. vs.
National Labor Relations, 176 SCRA 385, is quite misplaced because of the
Verily, it is crystal clear that individual complainant has indeed abandoned his obvious dissimilarities of the attendant circumstances in the said case vis-a-
work. The filing of the complaint on 25 June 1993 or almost two (2) months vis those obtaining in the case at bar. Unlike in the aforecited Shoemart
from the date complainant failed to report for work affirms the findings of this Case, herein complainant-appellant was not dismissed for unauthorized
Office and therefore, under the law and jurisprudence which upholds the right absences and eventually reinstated anterior to his second dismissal for the
of an employer to discharge an employee who incurs frequent, prolonged same offense nor was he given a second chance which he could have
and unexplained absences as being grossly remiss in his duties to the ignored.
employer and is therefore, dismissed for cause, (Shoemart, Inc. vs. NLRC,
176 SCRA 385). An employee is deemed to have abandoned his position or Otherwise stated, the difference between the two cases greatly lies [in] the
to have resigned from the same, whenever he has been absent therefrom fact that complainant in the Shoemart Case in the language of the Supreme
without previous permission of the employer for three consecutive days or Court was "an inveterate absentee who does not deserve reinstatement"
more. This justification is the obvious harm to employer's interest, resulting compared to herein complainant-appellant who is a first offender 9

from [sic] the non-availability of the worker's services, (Supra). (Emphasis

supplied) 5
The NLRC then decreed as follows:

and ruled that complainant's termination from his employment was "legal, the same PREMISES CONSIDERED, and [sic] the Decision of the Labor Arbiter, dated
with just or authorized cause and due process." 6
11 July 1994 is hereby MODIFIED, by directing the reinstatement of
complainant-appellant to his former position without loss of seniority rights
Complainant appealed to the NLRC, alleging that the immediate filing of a complaint for and other benefits, but without backwages. The other findings in tile appealed
illegal dismissal verily indicated that he never intended to abandon his work, then cited decision stand AFFIRMED.  10

Policarpio v. Vicente Dy Sun, Jr.,  where the NLRC ruled that prolonged, absence does not,
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by itself, necessarily mean abandonment. Accordingly, there must be a concurrence of Petitioner's motion for the reconsideration   was denied by the NLRC in its 7 December 1994
11

intention and overt acts from which it can be inferred that the employee is no longer resolution.  Petitioner thus filed this special civil action contending that the NLRC committed
12

interested in working. Complainant likewise invoked compassion in the application of grave abuse of discretion in ordering complainant's reinstatement, which in effect
sanctions, as dismissal from employment brings untold hardship and sorrows on the countenances the reinstatement of an employee who is found guilty of "excessive" absences
dependents of the wage earners. In his case, a penalty less punitive than dismissal could without pior approval. It further argued that the NLRC failed to consider the rationale behind
have sufficed. petitioner's Rules and Regulations; that it was deprived of its prerogative to enforce them;
and that complainant's reinstatement would adversely affect its business and send the wrong
In the assailed decision  of 7 October 1994, the NLRC modified the Labor Arbiter's decision
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signals to its employees.
and held that complainant's dismissal was invalid for the following reasons:
In its comment  for public respondent NLRC, the Office of the Solicitor General maintained
13

Complainant appellant's prolonged absences, although unauthorized, may that dismissal from employment was too severe a penalty for a first time offender like
not amount to gross neglect or abandonment of work to warrant outright complainant. Although he violated petitioner's rules and regulations, his absences were

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justified: he had to bring his children to Samar, his home province, as his wife deserted him. sever the employer-employee relation. The second element is the more determinative factor
While that by itself might not excuse the failure to seek permission, the Office of the Solicitor and must be evinced by overt acts.  Likewise, the burden of proof is on the employer to
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General submitted, however, that "it would be at [sic] the height of callousness if one, show the employee's clear and deliberate intent to discontinue his employment without any
considering his plight under the circumstance[s], would not give due consideration to intention of returning,  mere
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absence is not
[complainant's] explanation. There has to be an exception." 14
sufficient.   These elements are not present here. First, as held above, complainant's
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absence was justified under the circumstances. As to the second requisite, we are not
Applying Itogon-Suyoc Mines, Inc. v. NLRC,  the Office of the Solicitor General
15 convinced that complainant ever intended to sever the employer-employee relationship.
recommended complainant's reinstatement, which would be more harmonious to the dictates Complainant immediately complied with the memo requiring him to explain his absence, and
of social justice and equity. It further emphasized that the reinstatement should not be upon knowledge of his termination, immediately sued for illegal dismissal. These plainly
considered a condonation of complainant's irresponsible behavior, rather, it must be viewed refuted any claim that he was no longer interested in returning to work.  Without doubt, the
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as a mitigation of the severity of the penalty of dismissal. Accordingly, it prays that this intention is lacking.
petition be dismissed.
Moreover, petitioner failed to discharge the burden of proof that complainant was guilty of
In its reply,  petitioner disputed the application of Itogon-Suyoc because: (1) the employee
16 abandonment. No evidence other than complainant's letter explaining his absence was
involved therein had been in the service for twenty-three years while complainant herein had presented. Needless to state, the letter did not indicate, in the least, that complainant was no
served petitioner for only two years; and (2) the offense in Itogon-Suyoc was limited to a longer interested in returning to work. On the contrary, complainant sought petitioner's
single act of high grading while complainant herein committed a series of unexcused understanding. In declaring him guilty of abandonment, petitioner merely relied on its Rules
absences. and Regulations which limited its application to a six-day continuous absence, contrary to the
purpose of the law. While the employer is not precluded from prescribing rules and
We gave due course to the petition and dispensed with complainant's comment. regulations to govern the conduct of his employees, these rules and their implementation
must be fair, just and reasonable. It must be underscored that no less than our Constitution
looks with compassion on the workingman and protects his rights not only under a general
The sole issue to be resolved is whether the NLRC committed grave abuse of discretion in
statement of a state policy,  but under the Article on Social Justice and Human Rights,  thus
21 22

modifying the, decision of the Labor Arbiter.

placing labor contracts on a higher plane and with greater safeguards. Verily, relations
between capital and labor are not merely contractual. They are impressed with public interest
The answer must be in the negative. and labor contracts must, perforce, yield to the common good. 23

A scrutiny of the facts discloses that complainant's absence was precipitated by grave family We then conclude that complainant's "prolonged" absence without approval does not fall
problem as his wife unexpectedly deserted him and abandoned the family. Considering that within the definition of abandonment and that his dismissal was unjustified. While we do not
he had a full-time job, there was no one to whom to the could entrust the children and he decide here the validity of petitioner's Rules and Regulations on continuous, unauthorized
was thus compelled to bring them to the province. It would have been extremely difficult for absences, what is plain is that it was wielded with undue haste resulting in a deprivation of
him to have been husband and wife/father and mother at the same time to the children in the due process, thus not allowing for a determination of just cause or abandonment. In this
metropolis. He was then under emotional, psychological, spiritual and physical stress and light, petitioner's dismissal was illegal. This is not to say that his absence should go
strain. The reason for his absence is, under these circumstances, justified. While his failure unpunished, as impliedly noted by the NLRC in declining to award back wages. In the
to inform and seek petitioner's approval was an omission which must be corrected and absence of the appropriate offense which defines complainant's infraction in the company's
chastised, he did not merit the severest penalty of dismissal from the service. Rules and Regulations, equity dictates that a penalty commensurate to the infraction be
imposed.
Petitioner's finding that complainant was guilty of abandonment is misplaced. Abandonment
as a just and valid ground for dismissal requires the deliberate, unjustified refusal of the WHEREFORE, the petition is hereby DISMISSED and the decision of the National Labor
employee to resume his employment. Two elements must then be satisfied: (1) the failure to Relations Commission in NLRC Case No. 06-04136-93 is hereby AFFIRMED. No
report for work or absence without valid or justifiable reason; and (2) a clear intention to pronouncement as to costs.

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SO ORDERED. be committed by labor ought not to be visited with a consequence so severe.
It is not only because of the laws' concern for the workingman. There is in
Narvasa, C.J., Melo, Francisco and Panganiban, JJ., concur addition, his family to consider. Unemployment brings untold hardships and
sorrows on those dependent on the wage-earner. The misery and pain
Footnotes attendant on the loss of jobs then could be avoided if there be acceptance of
the view that under all the circumstances of this case, petitioners should not
be deprived of their means of livelihood. Nor is this to condone what had
1 Annex "H" of Petition, Rollo, 48-53. Per Commissioner Ireneo Bernardo,
been done by them. For all this while, since private respondent considered
with the concurrence of Presiding Commissioner Lourdes Javier and
them separated from the service, they had not been paid. For the strictly
Commissioner Joaquin Tanodra.
juridical standpoint, it cannot be too strongly stressed . . . that where a
decision may be made to rest on informed judgment rather than rigid rules,
2 Annex "F" of Petition, Rollo, 38-44. Per Labor Arbiter Jovencio Mayor, Jr. all the equities of the care must be accorded their due weight. Finally, labor
law determinations . . . should be not only secundum ratonem but
3 Rollo, 38-40. also secundum caritatem. (at 529, quoting from Meracap v. International
Ceramics Mfg. Co., Inc., 92. SCRA 412, 417 [1979])
4 176 SCRA 385 [1989].
16 Rollo, 87-90.
5 Rollo, 43.
17 De Ysasi III v. NLRC, 231 SCRA 173, 190 [1994]; Labor v. NLRC, 248
6 Id., 43 44. SCRA 183, 198 [1995].

7 NLRC Case No. R04-902074, 12 July 1976. 18 F R F. Enterprises, Inc. v. NLRC, 243 SCAR 593, 597 [1995]; Reno
Foods, Inc. v. NLRC, 249 SCRA 379, 386 [1995].
8 Supra note 1
19 Kingsize Manufacturing Corporation v. NLRC 238 SCRA 349, 354 [l994];
9 Rollo, 51-52. F.R.F. Enterprises, Inc. v. NLRC, supra note 18; Labor v. NLRC, supra note
17;
10 Rollo, 52-53.
20 See Asphalt and Cement Pavers, Inc. v. Leogardo, Jr., 162 SCRA 312,
11 Id., 61-62. 316-317 [1988]; Santos v. NLRC, 166 SCRA 759, 764-765 [1988]; New Imus
Lumber v. NLRC, 221 SCRA 594 [1993].
12 Id., 61-62.
21 Section 18, Article II.
13 Rollo, 75-82.
22 Section 3, Article XIII.
14 Rollo, 79-80.
s
15 117 SCRA 523 [1982]. We held therein : It would imply at the very least
that where a penalty less than punitive would suffice, whatever missteps may 23 Article 1700, Civil Code.

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