In Philippine labor law, when an employee stops reporting for work without an approved leave or prior notice, they are considered AWOL (Absent Without Official Leave). However, an employer cannot simply terminate an employee the moment they disappear. To protect the management from claims of illegal dismissal, a strict procedural process involving a Return to Work Order (RTWO) must be followed.
1. Understanding the Legal Basis
AWOL is not a standalone ground for termination under the Labor Code. Instead, it falls under Gross and Habitual Neglect of Duties (Article 297 [282]). To legally terminate someone for AWOL, the employer must prove Abandonment of Work.
Abandonment requires two elements:
- Failure to report for work or absence without valid reason.
- Clear intent to sever the employer-employee relationship (the more difficult part to prove).
The RTWO serves as the evidentiary bridge that proves the employee has no intention of returning.
2. The Step-by-Step Procedure
Phase I: The First Return to Work Order
The moment an employee exceeds the allowable "unexcused" threshold (usually defined in the Company Code of Conduct), the employer should initiate the RTWO process.
- Form: It must be a formal written notice.
- Content: The letter must state the specific dates the employee was absent and direct them to report back to work by a specific date and time.
- Warning: It should explicitly state that failure to comply will be construed as abandonment and may result in disciplinary action, including termination.
Phase II: Proper Service (The "Due Process" Requirement)
Under the Twin-Notice Rule, the RTWO serves as part of the first notice (Notice to Explain).
- Service Method: The order must be sent to the employee’s last known address via Registered Mail with Return Card.
- Proof of Receipt: Keep the registry receipt and the return card. If the employee refuses to receive it, the courier's notation "Refused to Accept" or "House Closed" serves as proof of the employer's "good faith" effort.
Phase III: The Administrative Hearing/Explanation
If the employee returns following the RTWO, the employer must still provide them an opportunity to explain their absence. This is the Notice to Explain (NTE) phase.
- If the excuse is valid (e.g., medical emergency, force majeure), disciplinary action may be mitigated.
- If the excuse is flimsy, the employer can proceed with a penalty based on the Company Handbook.
Phase IV: The Final Notice (Notice of Termination)
If the employee ignores the RTWO and fails to report after the grace period provided, the employer can then issue a Notice of Termination. This notice informs the employee that they are being dismissed for Abandonment/Gross Neglect of Duty.
3. Essential Elements of a Valid RTWO
To hold up in the National Labor Relations Commission (NLRC), the RTWO should contain:
- Reference to the Employment Contract: Cite the specific company policy being violated.
- Clear Timeline: Give the employee a reasonable period (usually 2–5 days from receipt) to respond or report back.
- Invitation to Explain: Ask the employee to submit a written explanation as to why they should not be disciplined for their unauthorized absences.
- Specific Destination: State to whom they should report (e.g., "Report to the HR Manager at 9:00 AM").
4. Common Pitfalls to Avoid
| Pitfall | Consequence |
|---|---|
| Immediate Termination | Results in "Illegal Dismissal" due to violation of procedural due process. |
| Sending via Social Media Only | While useful for speed, courts still prioritize physical mail to the last known address for official records. |
| Vague Instructions | If the RTWO doesn't warn of "Termination," the "intent to abandon" remains legally weak. |
| Ignoring the Explanation | If an employee returns with a valid medical certificate and you fire them anyway, it is likely an illegal dismissal. |
5. The "Constructive Dismissal" Defense
Employers must ensure the RTWO is not used as a tool for Constructive Dismissal. If an employee claims they went AWOL because the workplace was hostile or they were being forced out, the RTWO serves as the employer's defense to show they actually wanted the employee to return and perform their duties.
Note on Burden of Proof: In illegal dismissal cases, the burden of proof rests on the employer. A well-documented, timely issued, and properly served RTWO is the strongest evidence to defeat a claim of illegal dismissal for an AWOL employee.