Introduction

In the Philippine labor landscape, employee absenteeism without official leave (commonly referred to as AWOL) is a frequent issue that raises questions about employer rights and employee protections. One critical query is whether an employer can legally withhold an employee's salary after declaring them AWOL. This article explores the topic in depth, drawing from the provisions of the Labor Code of the Philippines (Presidential Decree No. 442, as amended), Department of Labor and Employment (DOLE) regulations, and relevant jurisprudence from the Supreme Court and labor tribunals. It aims to provide a comprehensive understanding of the legal framework, employer obligations, employee rights, procedural requirements, and potential consequences for both parties.

AWOL situations often stem from misunderstandings, personal emergencies, or disputes, but they can escalate into termination proceedings. Importantly, while employers have disciplinary authority, they are bound by principles of due process and fair labor practices. Withholding salary—meaning refusing to pay wages already earned—is not a straightforward right and must be examined against the backdrop of labor laws that prioritize worker protection.

Defining AWOL in the Philippine Context

AWOL, or Absence Without Leave, is not explicitly defined in the Labor Code but is understood as an employee's unauthorized absence from work without prior approval or valid justification. Under company policies, repeated or prolonged AWOL can be classified as a form of misconduct or abandonment of work.

According to Article 297 (formerly Article 282) of the Labor Code, abandonment of work is a just cause for termination if it involves two elements:

The employee's failure to report for work or absence without valid or justifiable reason.
A clear intention to sever the employer-employee relationship, often manifested by overt acts such as not returning despite notices.

Not every absence qualifies as AWOL leading to abandonment; short-term absences might be treated as minor infractions subject to progressive discipline (e.g., warnings, suspensions). DOLE guidelines emphasize that AWOL must be willful and intentional, distinguishing it from excused absences due to illness, family emergencies, or force majeure events like natural disasters.

In practice, employers often declare an employee AWOL after a certain number of consecutive unexcused absences, as stipulated in company rules. However, this declaration does not automatically terminate employment; it triggers investigative and disciplinary processes.

Legal Basis for Salary Payment and Withholding

The core principle governing salary payment in the Philippines is enshrined in Article 116 of the Labor Code: "Withholding of wages and kickbacks prohibited. It shall be unlawful for any person, directly or indirectly, to withhold any amount from the wages of a worker or induce him to give up any part of his wages by force, stealth, intimidation, threat or by any other means whatsoever without the worker’s consent."

This provision establishes that wages earned by an employee must be paid in full and on time, without unauthorized deductions. Wages are defined under Article 97(f) as remuneration for services rendered, including basic pay, allowances, and other benefits accruing from the employment contract.

Exceptions to this no-withholding rule are limited and explicitly allowed by law, such as:

Deductions for income tax, SSS, PhilHealth, and Pag-IBIG contributions (mandatory under Republic Act No. 9679 and related laws).
Union dues with employee authorization.
Debts acknowledged by the employee (e.g., salary advances, loans).
Court-ordered garnishments or attachments.
Losses or damages caused by the employee due to negligence or willful acts, but only after due process (Article 117).

Withholding salary as a punitive measure for AWOL is not among these exceptions. The Supreme Court has consistently ruled that employers cannot unilaterally withhold wages as a form of discipline or to offset alleged damages from absenteeism. For instance, in cases like Santos v. NLRC (G.R. No. 101699, 1996), the Court emphasized that wages are a property right, and deprivation thereof violates due process under the Constitution (Article III, Section 1).

However, AWOL can impact future earnings indirectly:

No work, no pay principle: Under Article 82 and DOLE Department Order No. 18-02, employees are not entitled to pay for days not worked, unless covered by paid leaves (e.g., vacation, sick leave under Article 94-95).
During suspension as a disciplinary measure for AWOL, salary may be withheld for the suspension period, but only after proper investigation and if suspension is warranted.

Can Employers Withhold Salary After Declaring AWOL?

The short answer is no—employers cannot withhold salary that has already been earned prior to the AWOL declaration. Wages for work performed must be paid regardless of subsequent absenteeism. Declaring an employee AWOL does not retroactively nullify earned compensation.

Key Scenarios and Analyses

Pre-AWOL Earned Wages:
- If an employee has worked for a period (e.g., the first half of the month) and then goes AWOL, the employer must pay for the days worked. Withholding this amount would violate Article 116 and could lead to claims for illegal deduction or non-payment of wages.
- Jurisprudence supports this: In Agabon v. NLRC (G.R. No. 158693, 2004), the Court clarified that even in cases of valid termination for abandonment, backwages are due from the time of dismissal until finality of the decision if due process was not observed. More directly, in Pido v. NLRC (G.R. No. 169812, 2007), withholding final pay (including unused leaves and 13th-month pay under Presidential Decree No. 851) was deemed illegal.
During AWOL Period:
- For the days of unauthorized absence, the "no work, no pay" rule applies. Employers are not obligated to pay for unworked days, which is not considered withholding but rather non-accrual of wages.
- If the AWOL leads to termination, the employee is entitled to separation pay only if the termination is for authorized causes (Article 298), not just causes like abandonment.
Post-AWOL Return or Termination:
- Upon return, if the employee is reinstated, any withheld pay must be released promptly.
- In termination cases, final pay (including prorated 13th-month pay, unused vacation/sick leaves converted to cash under Article 95, and SIL or service incentive leave under Article 95 for establishments with less than 10 employees) cannot be withheld. Employers often require a "quitclaim" or clearance process, but this cannot be used to coerce withholding.
- DOLE rules mandate release of final pay within 30 days of termination, or face penalties.
Special Cases:
- Probationary Employees: AWOL can lead to failure to qualify, but earned wages must still be paid.
- Contractual/Seasonal Workers: Similar rules apply; wages for rendered services are due.
- Overseas Filipino Workers (OFWs): Under Republic Act No. 10022, withholding is strictly prohibited, and POEA rules reinforce payment obligations.
- Government Employees: Governed by Civil Service rules (e.g., Omnibus Rules on Leave), AWOL can lead to dropping from rolls, but earned salaries are protected under the Government Accounting Manual.

Employers sometimes attempt to withhold pay to recover "damages" from AWOL, such as lost productivity. However, this requires proving actual damages in a separate civil action, not unilateral deduction (Article 117).

Due Process Requirements

Before any action affecting pay or employment, employers must observe twin-notice rule under DOLE Department Order No. 147-15:

Notice to Explain (NTE): Issued to the employee, detailing the AWOL charges and requiring a written explanation within a reasonable period (usually 5 days).
Administrative Hearing/Conference: Opportunity for the employee to defend themselves.
Notice of Decision: If termination or suspension is imposed, it must state the grounds.

Failure to follow due process, even if AWOL is substantiated, renders the action illegal, potentially entitling the employee to reinstatement, backwages, and damages (e.g., nominal damages of P30,000-P50,000 per Jaka Food Processing v. Pacot, G.R. No. 151378, 2005).

For withholding specifically, no due process can justify it if it violates Article 116.

Employee Remedies and Employer Liabilities

If an employer withholds salary unlawfully:

File a Complaint: With DOLE Regional Office for money claims (up to P5,000 per claimant) or NLRC for larger amounts/illegal dismissal.
Small Claims: For claims under P800,000, via Single Entry Approach (SEnA) mediation.
Criminal Liability: Under Article 116, withholding can lead to fines (P1,000-P10,000) or imprisonment (3 months to 3 years).
Civil Damages: Employee can sue for moral/exemplary damages if malice is proven.

Employers risk operational disruptions from labor disputes, backpay awards, and reputational harm. On the flip side, employees declared AWOL without basis can claim constructive dismissal.

Preventive Measures and Best Practices

For Employers: Implement clear attendance policies, use biometric systems, and document absences. Train HR on due process to avoid liabilities.
For Employees: Communicate absences promptly, use official leave forms, and respond to NTEs to avoid escalation.
Collective Bargaining Agreements (CBAs): These may provide additional protections or procedures, superseding general rules if more favorable to employees.

Conclusion

In summary, Philippine labor laws prohibit employers from withholding earned salary after declaring an employee AWOL, adhering to the no-withholding principle and due process requirements. While AWOL can justify disciplinary actions like suspension or termination—impacting future pay—retroactive or punitive withholding of due wages is illegal and exposes employers to significant liabilities. Both parties benefit from adherence to legal procedures, fostering fair workplaces. Employees facing such issues should seek DOLE assistance or legal counsel promptly to protect their rights. This framework underscores the Labor Code's bias toward labor protection while balancing employer management prerogatives.