Can an AWOL Employee Request a Certificate of Employment in the Philippines?

Introduction

In the Philippine labor landscape, the issuance of a Certificate of Employment (COE) serves as a crucial document for employees transitioning between jobs, applying for loans, visas, or other purposes requiring proof of work history. However, complications arise when an employee is considered Absent Without Official Leave (AWOL), a status that often signals potential disciplinary action or termination. This article explores the legal framework surrounding whether an AWOL employee can request and obtain a COE, drawing from the Labor Code of the Philippines, Department of Labor and Employment (DOLE) regulations, and related jurisprudence. It examines the rights and obligations of both employees and employers, the procedural aspects, potential challenges, and implications for labor relations.

Understanding AWOL in Philippine Labor Law

AWOL refers to an employee's unauthorized absence from work without prior notice or approval, which can constitute a ground for dismissal under the Labor Code. Specifically, Article 297 (formerly Article 282) of Presidential Decree No. 442, as amended, classifies "gross and habitual neglect of duties" as a just cause for termination. AWOL falls under this category if it demonstrates willful disregard for work responsibilities, such as repeated unexcused absences.

To declare an employee AWOL, employers must follow due process: issuing a notice to explain (NTE) the absence, allowing the employee to respond, and, if unsatisfactory, proceeding to termination with a notice of decision. Failure to adhere to this twin-notice rule can render the dismissal illegal, potentially leading to reinstatement or backwages as remedies under National Labor Relations Commission (NLRC) rulings.

An AWOL status does not automatically sever the employment relationship; it persists until formal termination. During this period, the employee remains on the payroll in a limbo state, often without pay for the absent days, but still entitled to certain rights unless dismissed.

The Certificate of Employment: Legal Mandate and Purpose

A COE is an official document issued by the employer certifying an individual's employment details, including the duration of service, position held, salary, and sometimes the reason for separation. It is not a clearance or recommendation letter but a factual record.

The legal basis for COE issuance is rooted in DOLE Department Order No. 150-16, which mandates employers to provide a COE upon request by current or former employees. This order aligns with Article 294 (formerly Article 279) of the Labor Code, emphasizing security of tenure and fair labor practices. Additionally, DOLE Department Advisory No. 06 Series of 2020 reinforces that COEs must be issued free of charge within three working days from the request, without preconditions like company clearance.

The purpose of the COE extends beyond mere documentation; it facilitates employees' access to social benefits, such as Social Security System (SSS) claims, PhilHealth reimbursements, or Pag-IBIG loans. Refusal to issue a COE can be deemed a violation of labor standards, punishable under the Labor Code with fines or administrative sanctions via DOLE regional offices.

Rights of an AWOL Employee to Request a COE

Contrary to common misconceptions, an employee's AWOL status does not inherently forfeit their right to request a COE. Philippine labor law prioritizes the protection of workers' rights, and the obligation to issue a COE is absolute, irrespective of the circumstances leading to separation or ongoing disputes.

If Still Employed (Pre-Termination AWOL): An employee who is AWOL but not yet terminated remains an active employee. They can request a COE for ongoing employment purposes, such as visa applications. Employers cannot withhold it as a punitive measure, as this would violate DOLE regulations. However, the COE would reflect the employment as current, without mentioning AWOL unless specified in the request.
If Terminated Due to AWOL: Post-termination, the individual becomes a former employee and is equally entitled to a COE. The document must accurately state the period of employment and may include the reason for separation if requested or required by law. Jurisprudence, such as in the case of Philippine Airlines, Inc. v. NLRC (G.R. No. 123294, 1998), underscores that even dismissed employees retain rights to employment records for future opportunities.

Key considerations include:

No Clearance Requirement: Employers cannot condition COE issuance on settling accounts, returning company property, or obtaining clearance. This is explicitly prohibited under DOLE guidelines to prevent abuse.
Accuracy and Completeness: The COE must be truthful. Misrepresentation, such as omitting AWOL-related details if relevant, could lead to legal challenges, but employers are not obligated to include derogatory information unless asked.
Special Cases: For government employees under Civil Service rules, similar principles apply via CSC Memorandum Circular No. 15, s. 2012, where AWOL (or "dropped from the rolls") does not bar COE requests, though it may affect service records.

In essence, the law views the COE as a non-discretionary employer duty, rooted in the constitutional right to labor protection (Article XIII, Section 3 of the 1987 Constitution).

Procedure for Requesting a COE as an AWOL Employee

The process for obtaining a COE is straightforward but may encounter resistance in AWOL scenarios:

Written Request: The employee submits a formal request via email, letter, or in-person, specifying details like inclusive dates and purpose. No specific form is mandated, but some companies have templates.
Employer Response Timeline: Per DOLE Advisory No. 06-20, issuance must occur within three days. Delays can be reported to DOLE for intervention.
If Refused: The employee can file a complaint with the nearest DOLE office or NLRC. Remedies include mandatory issuance orders, plus possible damages for undue hardship. In Santos v. NLRC (G.R. No. 115795, 1995), the Supreme Court held that withholding employment documents constitutes constructive dismissal or unfair labor practice.
Content Customization: Employees can request inclusions like salary history or performance notes, but AWOL details might be omitted unless pertinent. If the COE is for SSS or other agencies, standardized formats apply.

For AWOL employees, personal appearance might be challenging if access to the workplace is restricted, so remote requests are advisable, with proof of delivery.

Challenges and Employer Defenses

Employers may hesitate to issue COEs to AWOL employees due to ongoing investigations or fears of implying condonation. However, such refusals are untenable:

Potential Disputes: If the AWOL leads to litigation, the COE could be subpoenaed as evidence. Employers might argue incomplete records during AWOL periods, but this does not justify denial.
Liability for Non-Issuance: Violations can result in administrative fines (P1,000 to P10,000 per instance under DOLE rules) or civil claims for moral/exemplary damages.
Union or CBA Implications: In unionized settings, Collective Bargaining Agreements (CBAs) may provide additional protections, but they cannot override statutory COE rights.

Jurisprudence like De Guzman v. NLRC (G.R. No. 143954, 2003) illustrates that even in abandonment cases (a form of AWOL), former employees retain documentary rights.

Implications for Labor Relations and Best Practices

Allowing AWOL employees to request COEs promotes transparency and reduces post-employment conflicts. For employees, it aids in rebuilding careers; for employers, compliance avoids legal entanglements.

Best practices include:

Employers maintaining accurate records to facilitate quick issuance.
Employees documenting requests to build a case if denied.
Seeking DOLE mediation for amicable resolutions.

In broader context, this right aligns with international standards like ILO Convention No. 158 on Termination of Employment, ratified by the Philippines, emphasizing fair procedures and access to records.

Conclusion

In the Philippines, an AWOL employee—whether pre- or post-termination—can indeed request and is entitled to a Certificate of Employment. This entitlement stems from protective labor laws designed to ensure workers' access to essential documents, regardless of disciplinary status. While procedural hurdles may exist, the legal mandate is clear: employers must comply promptly and without conditions. Understanding these nuances empowers both parties to navigate employment transitions effectively, upholding the principles of justice and equity in the workplace. For specific cases, consulting a labor lawyer or DOLE is recommended to address unique circumstances.