G.R. No. 221096. June 28, 2017

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**G.R. No. 221096. June 28, 2017** is part of the List of SC Decisions of the Supreme Court.

To recapitulate, there was neither dismissal nor abandonment. At the time Tanguin initiated the illegal dismissal case, the complaint had no basis. The *status quo ante* was that she was being asked to explain the accusation against her. Instead of complying, she opted to file a complaint for illegal dismissal. It was premature, if not pre-emptive, which the Court cannot tolerate or accommodate. At this time, her plea for reinstatement, backwages and/or separation pay cannot be granted. Respondent should return to work and answer the complaints against her and the petitioners should accept her, without prejudice to the result of the investigation against her.

## Case Details

* Claudia's Kitchen, Inc. and Enzo Squilantini Vs. Ma. Realiza S. Tanguin
* G.R. No. 221096. June 28, 2017
* Justice xxx
* http://elibrary.judiciary.gov.ph/thebookshelf/showdocs/1/63168
* Labor

## Issues

WHETHER SEPARATION PAY IN LIEU OF REINSTATEMENT MAY BE AWARDED TO AN EMPLOYEE WHO WAS NOT DISMISSED FROM EMPLOYMENT.

## Info

* *Respondent was not dismissed from employment.*

"She simply alleged that a security guard barred her from entering her workplace. Yet, she offered no evidence to prove the same. Absent any evidence that she was prevented from entering her workplace, what remained was her bare allegation, which could not certainly be considered substantial evidence. At any rate, granting that she was barred, there was a lawful basis therefor as she had been placed under preventive suspension pending investigation."

* *There was no abandonment on the part of respondent*

"As defined under established jurisprudence, 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 [now Article 296] of the Labor Code. To constitute abandonment, however, there must be a clear and deliberate intent to discontinue one's employment without any intention of returning. In this regard, two elements must concur: (1) 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. Otherwise stated,' absence must be accompanied by overt acts unerringly pointing to the fact that the employee simply does not want to work anymore. It has been ruled that 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.[22] [Emphasis supplied]In this case, records are bereft of any indication that Tanguin's failure to report for work was with a clear intent to sever her employment relationship with the petitioners. Mere absence or failure to report for work, even after a notice to return to work has been served, is not enough to amount to an abandonment of employment."

* *The grant of separation pay in lieu of reinstatement has no legal basis*

"In sum, separation pay is only awarded to a dismissed employee in the following instances: 1) in case of closure of establishment under Article 298 [formerly Article 283] of the Labor Code; 2) in case of termination due to disease or sickness under Article 299 [formerly Article 284] of the Labor Code; 3) as a measure of social justice in those instances where the employee is validly dismissed for causes other than serious misconduct or those reflecting on his moral character;[36] 4) where the dismissed employee's position is no longer available;[37] 5) when the continued relationship between the employer and the employee is no longer viable due to the strained relations between them;[38] or 6) when the dismissed employee opted not to be reinstated, or the payment of separation benefits would be for the best interest of the parties involved.[39] In all of these cases, the grant of separation pay presupposes that the employee to whom it was given was dismissed from employment, whether legally or illegally. In fine, as a general rule, separation pay in lieu of reinstatement could not be awarded to an employee whose employment was not terminated by his employer."

* *No strained relations between the parties*

"Strained relations must be demonstrated as a fact. The doctrine of strained relations should not be used recklessly or applied loosely nor be based on impression alone."