G.R. No. 106915 August 31, 1993
Jardine Davies, Inc., petitioner, vs. National Labor Relations Commission, Fourth Division, Cebu City, and Salvador Salutin, respondents.

FACTS

Private respondent Salvador Salutin was employed by petitioner Jardine Davies, Inc. (JDI) on July 15, 1985. He filed a complaint for illegal dismissal. The Labor Arbiter decided in his favor on August 8, 1991, ordering his reinstatement with backwages and other monetary awards. JDI appealed to the NLRC and reinstated Salutin “on payroll only” beginning August 26, 1991, pursuant to a writ of execution. On September 21, 1991, JDI directed Salutin to report for work to their Bacolod Branch Manager. Salutin reported on September 24, 1991, at around 9:20 a.m. but left after about fifteen minutes and did not return. JDI stopped his salary payments. On October 17, 1991, JDI filed a “Manifestation and Motion” with the NLRC praying that Salutin be considered as having abandoned his work due to his continuous absence. Salutin opposed, claiming he left because he was suffering from a serious ailment, submitting a medical certificate. The NLRC dismissed JDI’s appeal on October 17, 1991, modifying the Labor Arbiter’s decision. JDI’s motion for reconsideration was denied on January 13, 1992. JDI filed a petition for certiorari (G.R. No. 103720) assailing the NLRC decision, which the Supreme Court dismissed on February 26, 1992, for failure to comply with Circular No. 28-91 on forum-shopping; the dismissal became final on June 19, 1992. Meanwhile, on June 16, 1992, JDI filed an ex parte motion to set for hearing its earlier “Manifestation and Motion,” based on information that Salutin was employed elsewhere from September 1 to December 31, 1991. Salutin filed a motion for release of his withheld salary, claiming he reported for work on December 11, 1991, after recovering. On July 22, 1992, the NLRC issued the assailed resolution denying JDI’s prayer to declare Salutin as having abandoned his job and also denying Salutin’s motion for release of salary. JDI’s motion for reconsideration was denied, prompting the instant petition.

ISSUE

Did the National Labor Relations Commission act with grave abuse of discretion in denying petitioner’s contention that private respondent Salvador Salutin should be considered as having abandoned his work when he failed to report for work pending the employer’s appeal, notwithstanding a showing that such failure was because the employee was also working for another company?

RULING

No, the National Labor Relations Commission did not act with grave abuse of discretion. The Supreme Court dismissed the petition and affirmed the questioned resolutions of the NLRC. The Court held that for abandonment to constitute a valid cause for termination, there must be a deliberate unjustified refusal of the employee to resume his employment, clearly shown by overt acts. Mere absence is not sufficient. In this case, Salutin reported for work as directed on September 24, 1991, but left due to a serious ailment, supported by a medical certificate for “peptic ulcer,” and he manifested his desire to resume work on December 11, 1991. His interim employment elsewhere did not constitute abandonment, as the order of immediate reinstatement pending appeal is an ancillary relief to cushion the economic impact of dismissal; if the employee chooses not to report, he foregoes the salary, but the final determination of rights is upon the Commission’s resolution. Furthermore, the issue of abandonment based on other employment was already raised by JDI in its first petition for certiorari (G.R. No. 103720), which was dismissed with finality, thus barring its invocation anew in the present petition.