Mallo vs. Southeast Asian College, Inc.

Where neither illegal dismissal by the employer nor abandonment by the employee is established, the proper remedy is reinstatement to the former position or a substantially equivalent one, but without backwages.

Melvin P. Mallo was hired by Southeast Asian College, Inc. (SACI) as a probationary full-time faculty member in its College of Nursing and Midwifery, with the rank of Assistant Professor C, for the Second Semester of SY 2007-2008. His employment was renewed for successive semesters until the Summer Semester of SY 2010-2011, after which he claimed to have attained regular or permanent employee status pursuant to the Manual of Regulations for Private Schools, having completed three consecutive years of satisfactory service and possessing the required masteral degrees. Edita F. Enatsu was SACI's Executive President/Chief Executive Officer. The dispute arose when Mallo was not given a teaching load for the First Semester of SY 2011-2012, prompting him to file a complaint for illegal dismissal and other monetary claims before the NLRC.

Melvin P. Mallo was hired by Southeast Asian College, Inc. (SACI) as a probationary full-time faculty member in its College of Nursing and Midwifery, with the rank of Assistant Professor C, for the Second Semester of SY 2007-2008. His employment was renewed for the succeeding semesters until the Summer Semester of SY 2010-2011. On June 3 and 8, 2011, Mallo inquired about his teaching load for the First Semester of SY 2011-2012, but SACI responded only that teaching assignments had not yet been given to faculty members. On June 15, 2011, Mallo learned from a co-professor that faculty meetings had been conducted on June 9 and 10, 2011, during which teaching loads were distributed. He then confronted the Dean of the College of Nursing, Dr. Clarita D. Curato, demanding his teaching load on the ground that he was already a permanent employee having served for almost four years. Dr. Curato replied that SACI was under no obligation to give him any teaching load because he was merely a contractual employee.

In their defense, respondents maintained that as early as April 2011, as evidenced by Dr. Curato's letter dated April 25, 2011 to the Medical Center Chief II of the National Center for Mental Health (NCMH), SACI had already assigned Mallo a teaching load for the First Semester of SY 2011-2012 as Clinical Instructor for the College of Nursing's Preceptorship Program, to be conducted at NCMH. Mallo, however, twice failed the qualifying test required for the job. Despite this, SACI appointed him as Clinical Instructor for the Preceptorship Program at United Doctors Medical Center (UDMC) instead, beginning June 23, 2011, which he accepted. A day before he was set to start, Mallo asked for a change in schedule, which was denied as it would entail a reshuffle of the entire NLRE schedule. From June 23 to 25, 2011, Mallo did not attend his classes at UDMC. A SACI official contacted him to ask whether he would report the following day, to which Mallo allegedly replied in the negative, citing a conflict with his new employment. SACI never heard from Mallo again until he filed the complaint on July 12, 2011.

The Labor Arbiter found Mallo to have been illegally dismissed, ordering backwages, separation pay in lieu of reinstatement, service incentive leave pay, 13th month pay, and attorney's fees, finding no evidence that Mallo refused his UDMC appointment or failed the NCMH qualifying tests. The NLRC affirmed, rejecting the claim that Mallo did not teach in the First Semester of SY 2008-2009 — citing SSS records showing SACI contributed premiums for him from January to December 2008 — and finding no abandonment. The CA, however, modified the NLRC ruling, declaring that Mallo had abandoned his job by not attending classes, refusing to work, and obtaining new employment, thereby deleting the awards of backwages, separation pay, and attorney's fees while retaining service incentive leave pay and 13th month pay.

• Illegal Dismissal: Mallo insisted that respondents illegally dismissed him because they failed to give him any teaching load for the First Semester of SY 2011-2012, which was tantamount to constructive dismissal.
• No Abandonment: Mallo contended that his filing of a complaint for illegal dismissal, coupled with his prior acts of actively inquiring about his teaching load, negated any intention to sever his employment relationship with SACI.

• No Dismissal: Respondents denied dismissing Mallo, maintaining that as early as April 2011 they had already given him his teaching load for the First Semester of SY 2011-2012 as Clinical Instructor at NCMH, which he accepted but from which he was disqualified after failing the qualifying tests twice.
• Abandonment: Respondents argued that Mallo abandoned his job by not attending his classes at UDMC from June 23 to 25, 2011, refusing to accept his new work assignment due to a conflict with his new employment, and never reporting back to SACI.

• Illegal Dismissal: Whether the CA correctly ruled that there was no illegal dismissal of Mallo.
• Abandonment: Whether the CA correctly ruled that Mallo abandoned his job.

• Illegal Dismissal: Yes. The CA correctly found no illegal dismissal, respondents having assigned Mallo a teaching load as early as April 2011, first at NCMH and then at UDMC after he failed the NCMH qualifying tests.
• Abandonment: No. The CA erred in declaring abandonment, there being no clear and deliberate intent on Mallo's part to sever the employment relationship, as evidenced by his active inquiries about his teaching load and his filing of the complaint for illegal dismissal.

• Illegal Dismissal: In termination cases, the burden of proving that an employee was not dismissed — or if dismissed, that the dismissal was not illegal — rests on the employer. The records showed that as early as April 2011, respondents had already assigned Mallo a teaching load for the First Semester of SY 2011-2012 as Clinical Instructor at NCMH, which he accepted. Although Mallo failed the NCMH qualifying tests twice, virtually disqualifying him from that assignment, respondents remedied the situation by assigning him as Clinical Instructor at UDMC instead, as shown in the Tentative Faculty Loading dated June 24, 2011. These facts demonstrated that respondents never dismissed Mallo; they took affirmative steps to provide him a teaching assignment despite the setback.

• Abandonment: Abandonment is the deliberate and unjustified refusal of an employee to resume his employment, requiring two concurrring elements: (1) failure to report for work or absence without valid or justifiable reason, and (2) a clear intention to sever the employer-employee relationship, the second element being the more determinative factor. The records were bereft of any indication that Mallo's absence was deliberate, unjustified, and with clear intent to sever his employment. While respondents claimed to have assigned Mallo as Clinical Instructor at UDMC after his NCMH failures, there was no proof that Mallo was informed of such assignment. A party alleging a critical fact must support the allegation with substantial evidence. More importantly, Mallo's filing of a complaint for illegal dismissal, coupled with his prior acts of actively inquiring about his teaching load, negated any intention to abandon. It would be absurd for Mallo to render continuous service for more than three years to attain regular status, only to leave without justifiable reason and then file a case to recover the same. Abandonment is a matter of intention and cannot be lightly inferred or legally presumed from equivocal acts. Since Mallo was neither dismissed nor had he abandoned his job, the proper remedy was reinstatement to his former position or a substantially equivalent one, but without backwages.

• Burden of Proof in Termination Cases — The onus of proving that an employee was not dismissed, or if dismissed, that the dismissal was not illegal, fully rests on the employer. Failure to discharge this burden means the dismissal was not justified and therefore illegal. In this case, respondents successfully discharged this burden by showing they assigned Mallo a teaching load as early as April 2011 and made alternative arrangements after he failed the NCMH qualifying tests.

• Elements of Abandonment — Abandonment requires the concurrence of two elements: (1) failure to report for work or absence without valid or justifiable reason; and (2) a clear intention to sever the employer-employee relationship. The second element is the more determinative factor and must be manifested by some overt acts. The employer bears the burden of proving a deliberate and unjustified refusal to resume employment without intention of returning. In this case, the second element was absent because Mallo's filing of a complaint for illegal dismissal and his active inquiries about his teaching load negated any intent to sever the relationship.

• Reinstatement Without Backwages — Where neither dismissal by the employer nor abandonment by the employee is established, the proper remedy is reinstatement to the former position or a substantially equivalent one, but without the award of backwages. This doctrine was applied because the Court found that SACI never dismissed Mallo and Mallo never abandoned his job.

• "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." — This passage states the canonical two-element test for abandonment in labor law, frequently cited in subsequent jurisprudence on employee abandonment.

• "More importantly, Mallo's filing of a complaint for illegal dismissal, coupled with his prior acts of actively inquiring about his teaching load, negate any intention on his part to sever his employment." — This passage articulates the principle that filing a complaint for illegal dismissal is incompatible with an intent to abandon, serving as a key evidentiary factor in negating abandonment.

• "In sum, since Mallo's was not dismissed and that he never abandoned his job, it is only proper for him to report back to work and for respondents to reinstate him to his former position or a substantially-equivalent one in its stead. In this regard, jurisprudence provides that in instances where there was neither dismissal by the employer nor abandonment by the employee, the proper remedy is to reinstate the employee to his former position but without the award of backwages." — This passage establishes the controlling remedy where neither dismissal nor abandonment is found: reinstatement without backwages.

• Tan Brothers Corporation of Basilan City vs. Escudero, G.R. No. 188711, July 3, 2013, 700 SCRA 583 — Controlling authority cited for the definition and elements of abandonment in labor law. The Court relied on this case's formulation of the two-element test for abandonment.
• Samar-Med Distribution vs. NLRC, G.R. No. 162385, July 15, 2013, 701 SCRA 148 — Cited for the doctrine that the burden of proving that an employee was not dismissed or that dismissal was legal rests on the employer.
• MZR Industries vs. Colambot, G.R. No. 179001, August 28, 2013, 704 SCRA 150 — Cited for the rule that where neither dismissal nor abandonment is established, the proper remedy is reinstatement without backwages.
• Dimagan vs. Dacworks United, Incorporated, 677 Phil. 472 (2011) — Cited for the proposition that where there is a divergence in the factual findings of the NLRC and the CA, the Court must review the records to determine which is more conformable to evidentiary facts.
• Macahilig vs. NLRC, 563 Phil. 683 (2007) — Cited for the principle that abandonment is a matter of intention and cannot be lightly inferred or legally presumed from equivocal acts.

• Article 282(b) [now Article 296], Labor Code — Cited as the statutory basis for abandonment as a just cause for termination of employment, specifically neglect of duty. The Court referenced the renumbering under Republic Act No. 10151.
• Manual of Regulations for Private Schools — Cited by the Labor Arbiter as the basis for Mallo's attainment of regular or permanent employee status after completing three consecutive years of satisfactory service and possessing the required masteral degrees. The LA, NLRC, and CA were unanimous on this point.

Chief Justice Maria Lourdes P.A. Sereno (Chairperson), Associate Justice Teresita J. Leonardo-De Castro, Associate Justice Lucas P. Bersamin, and Associate Justice Jose Portugal Perez concurred.