In this case, more than two months had already lapse since Lucy allegedly started to absent herself when she instituted the action for illegal dismissal. During said period of time no action was taken or notice given by DSI regarding Lucy’s absences. This is quite peculiar had Lucy’s employment not been severed at all.
Such proposition stretches credulity as it is not in accord with human nature for an employee to go through all the trouble of filing a labor case against his or her employer if he or she were not in fact dismissed from employment, In fact DSI itself considered her as “resigned” starting November 1997 which coincides with Lucy’s contention that she was dismissed by DSI on October 31, 1997.
Moreover, the law clearly spells out the manner by which an unjustified refusal to return to work by an employee may be established. Notice to Lucy must have been given by DSI requiring her to report for work with warning concerning her alleged absences.
The notice requirement actually consists of two parts to be separately served on the employee to wit:
(1) Notice to apprise the employee of her absences with a warning concerning a possible severance of employment in the event of an unjustified excuse for such absences, and
(2) Subsequent notice of the decision to dismiss in the event of the employee’s refusal to pay heed to such warning.
Hence, Lucy was indeed dismissed without just cause and without notice and hearing thereby entitling her to reinstatement without loss of seniority rights and other privileges, to her full back-wages, inclusive of allowances, and to her other benefits or their monetary equivalent computed from the time her compensation was withheld from her when she was unjustly terminated up to the time of payment thereof. Since reinstatement is no longer possible due to strained relations, then instead of reinstatement, separation pay equivalent to one month salary for every year of service must be paid to Lucy.
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