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When Can Your Employer Fire You for Not Showing Up?

when-can-your-employer-fire-you-for-not-showing-up

Back when I was in my freshman year of law school, I was working part-time at a call center. It wasn’t uncommon for me to receive questions from co-workers about legal issues – some inquiries were over-the-top and dealt with impossible crime scenarios which I was always eager to entertain; but there were also times when they asked labor law questions which were most definitely real-life scenarios disguised as hypotheticals.

Of course, being in my first year of law, plus the fact that Labor Law was two semesters away, my advise was to seek the advise of actual lawyers. I was an amateur. I surely did my best to give my best answers, but these were always accompanied by the disclaimer that I was a complete novice and I was even barely passing my Constitutional Law class.

One of the most common legal questions that I found there, directly and indirectly (you can hear people talking from a few cubicles away) was about job abandonment, or more commonly known as AWOL. An employee going AWOL is not uncommon in the Philippines, especially with a huge portion of the labor force hired as contractors instead of being direct employees. And even in call centers where people are usually, if not all the time, hired as regular employees, going AWOL is still pretty common.

But it wasn’t all the time that these people going AWOL actually did so with the intent of never returning to their jobs – most of the time, these people simply hit a rough patch and just didn’t properly communicate with their supervisor or manager.

When exactly is a person considered as having abandoned their job? When can your employer fire you for not showing up? Let’s examine the important case of Diamond Taxi v. Llamas (G.R. No. 190724).

A Cab Driver's Case: Diamond Taxi v. Llamas

To make explaining this case simpler, let me dispose of the procedural issues that were ruled on by the Supreme Court, which will not be discussed here. Let’s discuss the facts of this case.

Felipe Llamas filed a complaint for illegal dismissal. Llamas worked as a cab driver for Diamond Taxi, which was operated by the Ong brothers. The Ongs contended that they did not illegally dismiss or fire Llamas. The reason was that he had been absent from his job for quite some time – for almost a month. On top of that, the Ongs contended that they were justified of firing Llamas because he committed several traffic violations in the past five years, as well as for several instances of insubordination. In sum, the Ong brothers claimed that Llamas’ abandoning his job plus his numerous infractions were enough for them to properly fire their employee without any legal ramifications biting them back.

On the flipside, Llamas contended that he didn’t abandon his job. He even tried going back to work. On the first couple of days of the supposed ‘job abandonment period’ he tried to report for work, but one of the Ongs, Bryan Ong, refused to give him the car keys for his taxi cab. Bryan Ong would only give the keys back to him on the condition that Llamas sign the resignation letter that they prepared for him. Llamas tried to get his car keys back three separate times, but Bryan Ong refused, adamant that he sign the resignation letter first.

Felipe Llamas never did sign the resignation letter, and a few days later he filed a complaint for illegal dismissal.

Did the cab driver abandon his job?

The Supreme Court ruled that Felipe Llamas did not abandon his job.

The case took almost nine years to get a final ruling by the Supreme Court, as it kept on getting appealed on and elevated, until ultimately reaching the highest court. This goes to show that the wheels of justice may turn slow, but they inevitably reach their destination.

The court ruled that what Llamas did wasn’t enough to say that there was job abandonment. And so, what then, is needed, for job abandonment to exist?

The court said, “Abandonment is the deliberate and unjustified refusal of an employee to resume his employment. It is a form of neglect of duty that constitutes just cause for the employer to dismiss the employee.”

Furthermore, to elaborate this legal definition of job abandonment, the Supreme Court said that two elements must be present in order for there to be abandonment of work:

(1) The employee must have failed to report for work or must have been absent without valid or justifiable reason; and,

(2) There must have been a clear intention on the part of the employee to sever the employer-employee relationship manifested by some overt act.

Therefore, it wasn’t enough that Llamas was absent for some time. This absence needed to be accompanied by an overt act that pointed to him not wanting to keep working for his employer anymore.

The only evidence Diamond Taxi and the Ong brothers were able to provide was an attendance logbook proving that Llamas was absent on those days – this wasn’t enough to show that Llamas intended to abandon his job. In fact, the high court even pointed to the fact that Llamas filed the complaint for illegal dismissal a few days after he was denied his car keys as an indication that Llamas had no intent whatsoever to leave his job.

Constructive Dismissal

What instead happened in the case of Diamond Taxi v. Llamas was constructive dismissal. Constructive Dismissal is when your employer doesn’t expressly or overtly say that you’re fired – instead, your employer makes it impossible for you to do your job by things like deactivating your badge, or in Llamas’ case, refusing to hand over the keys to his taxi cab. By denying Llamas his car keys, Diamond Taxi made it impossible for Llamas to perform his work.

The Supreme Court ruled that there was constructive dismissal in this case, and as a result they agreed with the Court of Appeals in ordering Diamond Taxi to pay Llamas full backwages, separation pay and other benefits from the time of the dismissal up to the finality of the decision.

Justice and equity prevailed in the end.

Knowing your rights, especially in this new age of work

In this new age of work, where the line between work life and home life has become blurrier than ever, it’s important that you know the full extent of your rights as an employee. Some courts in other countries may not be as kind to workers as they are here in the Philippines, but it doesn’t hurt to know the rules of the game.

Llamas may have been a cab driver, but his case is illustrative to different types of workers here in the Philippines. If you have been fired due to job abandonment, make sure you remember that there are two things that need to present for your employer to legally dismiss you – first, the fact that you didn't show up; and second, the fact that you have no intention of coming back. Without the second requirement, letting you go would constitute illegal dismissal.

Whether you are a fully-remote worker, a hybrid worker, an onsite worker, or a cab driver like Felipe Llamas – know your rights. If you still have the mentality that your employer owns you and every bit of your time, and can dispose of you anytime it wants and for whatever reason, I urge you to study about your rights.

We live in a culture where ‘work’ is an idol and CEOs are untouchable superstars – knowing your rights as an employee is a good start to tilt work back in favor of the worker, perfectly balanced as all things should be.

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