Issue: Is there an illegal dismissal of an employee of a construction business who is 60 years of

age and was given a floating status during the pandemic but was eventually offered to return to
work but failed to appear in the workplace?
No. The employee was not illegally dismissed on the following reasons:
He was a High-Risk Individual. World Health Organization stated that COVID-19 is
often more severe in people who are older than 60 years or who have health conditions like lung
or heart disease, diabetes or conditions that affect their immune system and are considered High-
Risk Groups (https://www.who.int/westernpacific/emergencies/covid-19/information/high-risk-
groups).
During the Declaration of State of Calamity under Proclamation No. 929 dated March 16,
2020, Pres. Rodrigo Roa Duterte imposed an Enhanced Community Quarantine (ECQ) all
throughout Luzon (Sec. 3, Proclamation No. 929). Subsequently, the Inter-Agency Task Force
Omnibus Guidelines on the Implementation of Community Quarantine in the Philippines, with
Amendments as of October 08, 2020, stated under Section 2 par. 3:

SECTION [2] GUIDELINES FOR AREAS PLACED UNDER ENHANCED

COMMUNITY QUARANTINE. Areas placed under ECQ shall observe the following
protocols:
…
3. Any person below twenty-one (21) years old, those who are sixty (60) years old and
above, those with immunodeficiency, comorbidity, or other health risks, and pregnant
women, including any person who resides with the aforementioned, shall be required to
remain in their residences at all times, except when indispensable under the
circumstances for obtaining essential goods and services, or for work in industries and
offices or such other activities permitted in this Section.
As stated in the guidelines, areas considered under ECQ required any person who are
sixty years old and above to remain inside their houses at all times, except only for indispensable
circumstances. Since the employee is already 60 years old, he is considered a high-risk
individual, prevented from going outside and was not allowed by the company to work for health
and safety reasons. His floating status is justified because of the restrictions implemented during
the pandemic.
He also cannot be considered an essential worker and the nature of business of the
employer, as a Construction business, cannot considered as essential to operate during the
pandemic. The IATF Omnibus Guidelines enumerated under Section 2 pars. 4-9,13-16 those
which are only allowed to operate during the pandemic. On the said list, a construction business
and operations is not included on the said list except for essential purposes.
The offer of the employer for the employee to return to work is an indication that there is
no illegal dismissal as the employer still consider the employee’s services to the former’s
construction business. The employee’s lack of response and subsequent absence from work after
the offer presupposes that the employee does not wish to continue working with the employer’s
construction business. According to Art. 282 of the Labor Code of the Philippines:

Art. 282. Termination by employer. An employer may terminate an employment for any
of the following causes:
a. Serious misconduct or willful disobedience by the employee of the lawful orders of his
employer or representative in connection with his work;
b. Gross and habitual neglect by the employee of his duties;
c. Fraud or willful breach by the employee of the trust reposed in him by his employer or
duly authorized representative;
d. Commission of a crime or offense by the employee against the person of his employer
or any immediate member of his family or his duly authorized representatives; and
e. Other causes analogous to the foregoing.
The unresponsiveness and subsequent absence of the employee after the offer to return
for work was given can be considered willful disobedience by the employee of the lawful orders
of his employer, as stated on Art. 282 (a) of the said law, and can be considered as
abandonment. According to the case of OHN L. BORJA AND AUBREY L. BORJA/ DONG
JUAN vs. RANDY B. MINOZA and ALAINE S. BANDALAN (G.R. No. 218384, July 3,
2017):
“To constitute abandonment, two (2) elements must concur: (a) the failure to report
for work or absence without valid or justifiable reason, and (b) a clear intention to sever
the employer-employee relationship, with the second element as the more determinative
factor and being manifested by some overt acts. Mere absence is not sufficient. The
employer has the burden of proof to show a deliberate and unjustified refusal of the
employee to resume his employment without any intention of returning. Abandonment is
incompatible with constructive dismissal.”
The foregoing explanation of the Court conclude that the act of the employee of not
reporting to work after the employer’s offer to return and the subsequent filing of the present
case constitutes abandonment and can be a subject of termination by the employer. Hence, it is
the fault of the employee, not the employer, for not returning to work and, therefore, cannot be
considered as an illegal dismissal.