Digest: R.P. Dinaglasan Construction, Inc. v. Atienza (433 SCRA 263, 2004)

Facts: Petitioner R.P. Dinglasan Construction, Inc. provided janitorial services to Pilipinas Shell Refinery Corporation (Shell Corporation) in Batangas City.Private respondents Mariano Atienza and Santiago Asi served as petitioners janitors assigned with Shell Corporation since 1962 and 1973, respectively.

Private respondents claim that on July 7, 1994, petitioner called for a meeting and informed private respondents and three (3) other employees that their employment with Shell Corporation would be terminated effective July 15, 1994.They were told that petitioner lost the bidding for janitorial services with Shell. Petitioner notified respondents that they may reapply as helpers and redeployed in other companies where petitioner had subsisting contracts but they would receive only a minimum wage. Private respondents refused as the offer would be a form of demotion --- they would lose their seniority status and would not be guaranteed to work at regular hours.

Issue: Whether or not the offer is a form of demotion

Ruling: To constitute abandonment of work, two (2) requisites must concur: first, the employee must have failed to report for work or must have been absent without justifiable reason; and second, there must have been a clear intention on the part of the employee to sever the employer-employee relationship as manifested by overt acts. Abandonment as a just ground for dismissal requires deliberate, unjustified refusal of the employee to resume his employment. Mere absence or failure to report for work, after notice to return, is not enough to amount to abandonment.

In the case at bar, the evidence of private respondents negates petitioners theory that they abandoned their work. Firstly, private respondents reported back to petitioners office a number of times expressing their desire to continue working for petitioner without demotion in rank or diminution of salary.This fact was established by the corroborating testimony of barangay councilman Valentin Clerigo who, together with the barangay captain, accompanied private respondents to petitioners office at least ten (10) times to negotiate their redeployment on more acceptable terms. Secondly, in seeking reinstatement, private respondents also sought the intervention of the DOLE to arbitrate the labor issue between the parties. Thirdly, private respondents submitted the barangay clearances and x-ray results required from them by petitioner for their reinstatement as witnessed by the barangay officials. Lastly, the records would bear that private respondents lost no time and sought their reinstatement by filing an illegal dismissal case against petitioner, which act is clearly inconsistent with a desire to sever employer-employee relations and abandon their work. All these overt acts on the part of private respondents negate petitioners claim of abandonment of work and prove beyond doubt their steadfast desire to continue their employment with petitioner and be reinstated to their former position. Moreover, petitioner failed to explain why it waited for 14 months from the time private respondents allegedly did not return to work before it dismissed them for being AWOL.

We hold that private respondents were constructively dismissed by petitioner.  Constructive dismissal is defined as quitting when continued employment is rendered impossible, unreasonable or unlikely as the offer of employment involves a demotion in rank and diminution of pay. In the case at bar, petitioner committed constructive dismissal when it offered to reassign private respondents to another company but with no guaranteed working hours and payment of only the minimum wage.The terms of the redeployment thus became unacceptable for private respondents and foreclosed any choice but to reject petitioners offer, involving as it does a demotion in status and diminution in pay.Thereafter, for six (6) months, private respondents were in a floating status.Interestingly, it was only after private respondents filed a complaint with the DOLE that petitioner backtracked in its position and offered to reinstate private respondents to their former job in Shell Corporation with no diminution in salary. Eventually, however, petitioner unilaterally withdrew its offer of reinstatement, refused to meet with the private respondents and instead decided to dismiss them from service.