FACTS: Private respondent Jose Yape was working for petitioner as driver of their passenger jeepneys. On December 27, 1994, private respondent lost his driver’s license and asked for permission to go on vacation leave to secure a new one. After obtaining his license, he returned to work but was informed that another driver had already taken his place. Private respondent filed for illegal dismissal. Petitioners contend that private respondent is only an alternate driver; driving the jeepney only on a half day shifting basis on certain days of the week, and that when he went on a vacation and came back to work after three months, petitioners told him that they already hired regular drivers. The LA ruled in favor of the private respondent stating that Yape started as regular driver and cannot be dismissed without due process of law. Petitioners assert that there was no er-ee relationship; the private respondent is not a regular employee; and that as a spare driver, he is a redundancy. NLRC modified LA’s decision by deleting the award representing 13th month pay and the award of attorney’s fees. Petitioners argue that the prolonged absence of Yape constituted abandonment
ISSUE: Whether or not private respondent’s absence constituted abandonment.
HELD: No. To constitute abandonment, two elements must concur: (1) the failure to report for work or absence without valid or justifiable reason, and (2) a clear intention to sever the employer-employee relationship. Such is disputed by the fact that private respondent immediately reported back for work and lost no time in filing a case for illegal dismissal against petitioners. Additionally, petitioners failed served written notice of respondent’s termination, thus consisting illegal dismissal. Private respondent is entitled to payment of backwages; however; the determination of such is subject to determination by the LA due to lack of evidence presented by respondent to warrant such award.
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