In the Philippine labor landscape, the security of tenure is a constitutionally protected right. An employee cannot be dismissed without just or authorized cause and due process. However, when family emergencies or deaths lead to frequent absences, the line between protected personal rights and an employer’s management prerogative can become blurred.
1. The General Rule: Security of Tenure
Under the Labor Code of the Philippines, an employer can only terminate an employee based on specific grounds. Family-related absences generally fall under the category of "Attendance," and if they become excessive, they are usually categorized under:
- Gross and Habitual Neglect of Duty: This is a "Just Cause" for termination.
- Serious Misconduct: If the absence involves dishonesty (e.g., faking a death to skip work).
2. Family Deaths and Bereavement Leave
Contrary to popular belief, there is no general law in the Philippines that mandates a specific number of paid "Bereavement Leave" days for all private-sector employees.
- Company Policy and CBA: Most bereavement benefits are derived from company policies, Employee Handbooks, or Collective Bargaining Agreements (CBA). If a policy grants 3–5 days for the death of an immediate family member, an employee using those days cannot be terminated for "absence."
- Unpaid Leave: If no policy exists, the employee must usually use their Service Incentive Leave (SIL)—the 5 days of paid leave mandated by law after one year of service—or request unpaid leave.
3. Family Emergencies and Protected Leaves
While "emergency" is a broad term, specific Philippine laws protect employees from termination when absences are tied to certain family responsibilities:
| Law | Leave Type | Coverage |
|---|---|---|
| R.A. 8972 | Solo Parent Leave | 7 days of parental leave to attend to parental duties (e.g., child’s illness, school emergencies). |
| R.A. 9262 | VAWC Leave | Up to 10 days for women/children victims of violence to attend to legal or medical emergencies. |
| R.A. 11210 | Expanded Maternity Leave | Allows the allocation of up to 7 days of leave to the father or an alternate caregiver. |
4. When Absences Become a Valid Ground for Dismissal
An employer can legally terminate an employee if the absences due to family issues meet the criteria for Gross and Habitual Neglect of Duty.
- Gross Neglect: The absence must be significant enough to cause actual harm or disruption to the business operations.
- Habitual Neglect: A single instance of missing work for a funeral is rarely enough for dismissal. However, if an employee repeatedly misses work for "emergencies" without following notification protocols, it becomes habitual.
- Abandonment: If an employee disappears for a prolonged period due to a family crisis without notifying the employer (Absence Without Official Leave or AWOL), it may be construed as abandonment of work.
5. The Requirement of Procedural Due Process
Even if the absences are excessive, an employer cannot summarily fire an employee. They must follow the "Twin-Notice Rule":
- Notice to Explain (NTE): A written notice specifying the instances of absences and giving the employee a chance to explain why they should not be disciplined.
- Administrative Hearing: An opportunity for the employee to present evidence (e.g., death certificates, medical records of family members).
- Notice of Decision: A written notice informing the employee of the penalty (which could be a warning, suspension, or dismissal).
6. The Principle of Compassion and Totality of Infractions
Philippine Jurisprudence often leans toward the worker in cases of family tragedy. The Supreme Court has frequently ruled that while management has the right to discipline, it must be exercised with humanity and compassion.
- Totality of Infractions: The court looks at the employee's entire length of service and previous record. If a long-time employee with a clean record has a lapse due to a sudden family death, dismissal is often viewed as too harsh a penalty.
- Proportionality: The penalty must fit the offense. Terminating a stellar employee for a three-day unannounced absence due to a parent's sudden death would likely be ruled as Illegal Dismissal.
Summary
An employee cannot be terminated for a single, legitimate family emergency or death. However, they can be terminated if these emergencies lead to chronic, unexcused absences that disrupt the workplace, provided the employer follows the legal requirements of due process and proves that the neglect of duty was both gross and habitual.