"x x x.
Discussion
We rule in the affirmative.
Abandonment is a matter of intention and cannot lightly be presumed from certain equivocal acts, especially during times of hardship.[6] Thus, we have ruled in a series of cases that there are two elements that must concur in order for an act to constitute abandonment: (1) failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever the employer-employee relationship.[7] The second element is the more determinative factor, which must be manifested by some overt acts.[8] Mere absence or failure to report for work does not, ipso facto, amount to abandonment of work.[9] To prove abandonment, the employer must show that the employee deliberately and unjustifiably refused to resume his employment without any intention of returning.[10]
The NLRC and the CA found that the true reason why respondent did not report for work for about 50 days was that he had been told by petitioners to “lie low.” This is a finding of fact, which we shall no longer disturb. Thus, when respondent realized that he was no longer going to receive work assignments, he wasted no time in filing a case for illegal dismissal against petitioners. Employees who take steps to protest their dismissal cannot logically be said to have abandoned their work.[11] A charge of abandonment is totally inconsistent with the immediate filing of a complaint for illegal dismissal.[12] The filing thereof is proof enough of one’s desire to return to work, thus negating any suggestion of abandonment.[13]
Respondent must therefore be deemed to have been constructively dismissed. There is constructive dismissal when continued employment is rendered impossible, unreasonable, or unlikely.[14] In this case, although Aduna agreed to “lie low” because of the incident, it became clear that petitioners no longer had the intention to give him future assignments. In fact, they already deemed the issuance of the Certificate of Employment as a sign of abandonment of work. The continued failure of petitioners to offer him a new assignment makes the former liable for constructive dismissal.[15]Clearly, the instruction to temporarily “lie low” was meant to be for a permanent cessation from work. With the absence of any proof of dire exigency that would justify the failure to give further assignments, the only logical conclusion is that respondent was constructively dismissed.[16]
In an illegal dismissal case, the onus probandi rests on the employer, who has to prove that the dismissal of an employee was for a valid cause. [17]Since petitioners based their defense on abandonment by respondent, it is likewise incumbent upon them, as employers, to prove that he clearly, voluntarily, and intentionally abandoned his work.[18] As previously discussed, it is clear from the evidence on record that petitioners failed to discharge this burden.[19] As we have consistently affirmed, if the evidence presented by the employer and the employee are in equipoise, the scales of justice must be tilted in favor of the latter.[20] Accordingly, the finding of illegal dismissal must be upheld.[21]
Article 279 of the Labor Code provides that an employee who is unjustly dismissed from work shall be entitled to reinstatement without loss of seniority rights and other privileges; to his full back wages, inclusive of allowances; and to other applicable benefits or their monetary equivalent computed from the time compensation was withheld up to the time of actual reinstatement.[22] However, in recognition of the strained relations between petitioners and respondent, the former are instead liable to give separation pay as found by the CA.
x x x."
