"x x x.
Abandonment is a form of neglect of duty, one of the just causes for an employer to terminate an employee. It is a hornbook precept that in illegal dismissal cases, the employer bears the burden of proof. For a valid termination of employment on the ground of abandonment, the employer must prove, by substantial evidence, the concurrence of the employee’s failure to report for work for no valid reason and his categorical intention to discontinue employment.[30]
There is in this case no substantial evidence that will prove respondent’s categorical intention to discontinue employment. On the contrary, the story of abandonment is simply doubtful. The Court of Appeals was correct in ruling that:
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It is not in accord with normal human experience and too flimsy a reason for petitioner so circumstanced, to just pack up her things and vacate the Pangi property after being queried on why she did not show up at the appointed time with the radiologist. The allegation that private respondent was displeased after incurring expenses for petitioner’s medical check-up remained unrebutted. Hence, petitioner’s testimony that she was prevented entry into the Pangi property appeared more credible.
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Respondent has been in the employ of petitioner for six years when the alleged abandonment happened. Being scolded, if it were true, is hardly a reason for a gardener of six years to just pack up and leave the work premises where she was even allowed to reside, at a time when she was ill and needed medical attention. Indeed, the alleged scolding is itself incredible. The given reason was that respondent failed to show up at her arranged appointment with the radiologist. It is hard to believe that a sick gardener, certainly of minimal means, would refuse the offer of medical services. In fact, the basic allegation in respondent’s complaint for illegal dismissal was that petitioner’s “treatment to her became sour especially when she requested that she be examined by a doctor for her cough.”[32] And, completely belying the petitioner’s assertion that respondent failed to show up at the appointed time with the radiologist are two certificates issued by Radiologist Susan R. Gaspar stating that on 30 January 1999 and on 1 February 1999 respondent had her chest x-ray taken at the Radiology Section of the Polyclinic Davao.[33]
In the case of Garcia v. NLRC correctly relied upon by the Court of Appeals, we emphasized that there must be a concurrence of the intention to abandon and some overt acts from which an employee may be deduced as having no more intention to work.[34] Such intent to discontinue the employment must be shown by clear proof that it was deliberate and unjustified.[35]
In the instant case, the overt act relied upon by petitioner is not only a doubtful occurrence but is, if it did transpire, even consistent with the dismissal from employment posited by the respondent. The factual appraisal of the Court of Appeals is correct. Petitioner was displeased after incurring expenses for respondent’s medical check-up and, it is credible that, thereafter, respondent was prevented entry into the work premises. This is tantamount to constructive dismissal.[36]
Constructive dismissal exists where there is cessation of work because continued employment is rendered impossible, unreasonable or unlikely, as an offer involving a demotion in rank and a diminution in pay.[37] Constructive dismissal is a dismissal in disguise or an act amounting to dismissal but made to appear as if it were not.[38] In constructive dismissal cases, the employer is, concededly, charged with the burden of proving that its conduct and action or the transfer of an employee are for valid and legitimate grounds such as genuine business necessity.[39]
We agree with the Court of Appeals that the incredibility of petitioner’s submission about abandonment of work renders credible the position of respondent that she was prevented from entering the property. This was even corroborated by the affidavits of Siarot and Mendoza which were made part of the records of this case.
The dismissal of respondent places upon petitioner the burden of proof of legality of dismissal.
In AMA Computer College-East Rizal v. Ignacio[40] as reiterated inGurango v. Best Chemicals and Plastics, Inc.,[41] the Court ruled that:
In termination cases, the burden of proof rests on the employer to show that the dismissal is for just cause. When there is no showing of a clear, valid and legal cause for the termination of employment, the law considers the matter a case of illegal dismissal and the burden is on the employer to prove that the termination was for a valid or authorized cause. And the quantum of proof which the employer must discharge is substantial evidence. An employee’s dismissal due to serious misconduct must be supported by substantial evidence. Substantial evidence is that amount of relevant evidence as a reasonable mind might accept as adequate to support a conclusion, even if other minds, equally reasonable, might conceivably opine otherwise.[42]
In this case, petitioner, instead of proving the legality of dismissal, relied entirely on the defense of abandonment. When such defense fell and failed, illegal dismissal was left undisputed.
Having disposed of the basic issues and found that there is an employee-employer relationship between the parties and that respondent was illegally dismissed, the rest of the disposition of the Court of Appeals will have to be, consequently, affirmed.
x x x."