G.R. No.

81471 April 26, 1989 (OLD CASE)

CHONG GUAN TRADING, petitioner,

vs.
NATIONAL LABOR RELATIONS COMMISSION and JOSE M. CHUA

Private respondent claims that Mariano Lim dismissed him when the latter said: "Lumayas ka
rito." This is disputed by the petitioner who claims that it was private respondent who voluntarily left
petitioner's premises.

 After a careful examination of the events that gave rise to the present controversy as shown by
the record, the Court is convinced that private respondent was never dismissed by the
petitioner. Even if it were true that Mariano Lim ordered private respondent to go and that
at that time he intended to dismiss private respondent, the record is bereft of evidence to
show that he carried out this intention. Private respondent was not even notified that he had
been dismissed. Nor was he prevented from returning to his work after the October 28 incident.
The only thing that is established from the record, and which is not disputed by the parties, is
that private respondent Chua did not return to his work after his heated argument with the Lim
brothers.

 Where the employee was not dismissed and his failure to work was not due to the
employer's fault, the burden of economic loss suffered by the employee should not be
shifted to the employer. [SSS v. SSS Supervisors' Union-CUGCO, G.R. No. L-31832, October
23, 1982, 117 SCRA 746; Durabuilt Recapping Plant and Co. v. National Labor Relations
Commission, supra.] In this case, private respondent's failure to work was due to the
misunderstanding between the petitioner's management and private respondent.

G.R. No. 191825, October 05, 2016 (NEW CASE)

DEE JAY'S INN AND CAFE AND/OR MELINDA FERRARIS, Petitioners, v. MA. LORINA
RA�ESES, Respondent.

1. Under this construct, abandonment is a defense available against the employee who alleges a dismissal.
Thus, for the employer "to successfully invoke abandonment, whether as a ground for dismissing an
employee or as a defense, the employer bears the burden of proving the employee's unjustified refusal to
resume his employment." This burden, of course, proceeds from the general rule that places the burden on
the employer to prove the validity of the dismissal. (possible contention of the EE)
NLRC DECISION: “where the employee was not notified that he had been dismissed from employment
neither was he prevented from returning to his work, there is no illegal dismissal. (Chong Guan Trading vs
NLRC 172 SCRA 831)

For indeed, the record do not bare any positive or unequivocal act of the petitioners of notifying them of the
termination of their services, as observed by the Labor Arbiter a quo. Thus the respondents herein
miserably failed to establish by substantial evidence that they were dismissed. Their verbal claims were self-
serving and biased statements.

MR - denied

Petition for certiorari - granted, favors the employee.

Issue: WON RESPONDENT IS ILLEGALLY DISMISSED

RULING: SC ruled in negative.

 In Exodus International Construction Corporation vs Biscocho, the Court pronounced that “ in illegal
dismissasl cases, it is incumbent upon the employees to first establish the fact of their dismiss before
the burden is shifted to the employer to prove that the dismissal was legal. The court explained that:

“ in cases of illegal dismissal, the employer bears the burden of proof to prove that the termination
was for a valid or authorized case. But before the employer bear the burden of proving that the dismissal
was legal, the employee must first establish by substantial evidence that indeed they were dismissed. If
there is no dismissal, then there can be no question as to the legality or illegality thereof.

In the caste at bar, the Labor Arbiter, NLRC and the Court of Appeals, all consistently found that the
respondent was not able to present substantial evidence of her dismissal. The Joint Affidavit submitted by
them were considered to be self serving and biased.

 Nightowl Watchman & Security Agency, Inc vs Lumahan, in which Lumahan, the employee, asserted,
but failed to prove that he was constructively dismissed, while Nightowl, the employer, alleged that
Lumahan did not report to work anymore by certain date but did not raise the abandonment as a
defense.

Discussion of SC: Nightowl did not say that Lumahan abandoned his work rather, Nightown stated that
Lumahan abandoned his post at Steelwork. When read together with its arguments, what this phrase simply
means is that Lumahan abandoned his assignment at Steelwork, nonetheless, Nightowl still considered him
as its employee whose return they had been waiting for.

Finally, failure to send notices to Lumahan to report back to work should not be taken against Nightowl
despite the fact that it would have been prudent, given the circumstance, had it done so. Report to work
notices are required, as an aspect of procedural due process, only in situations involving the dismissal,
or the possibility of dismissal, of the employee. Verily, report-to-work notices could not be
required when dismissal, or the possibility of dismissal, of the employee does not exist.