Due Process for Dismissal of AWOL Employees Under Philippine Labor Rules (Private-sector perspective unless otherwise stated)
1. Why the Topic Matters
“AWOL” (absence without official leave) is among the most common disciplinary issues that end in dismissal disputes. While chronic unexcused absences can qualify as a just cause under Article 297 [282] of the Labor Code (“abandonment of work”), employers who skip the mandatory procedural steps expose themselves to illegal-dismissal liability—even if the worker truly deserted the job. Understanding every layer of due process is therefore essential for both compliance and risk management.
2. Statutory & Regulatory Foundations
| Source | Key Provisions |
|---|---|
| Constitution (Art. III §1; Art. XIII §3) | Security of tenure; no person may be deprived of life, liberty, or property without due process of law. |
| Labor Code, Art. 297 [282] | Lists abandonment of work as a just cause for termination. |
| Labor Code, Art. 299 [284] | Imposes the burden of proving the validity of dismissal on the employer. |
| Department Order (D.O.) 147-15, Series of 2015 | Codifies the two-notice rule, five-calendar-day reply period, hearing requirements, and service modalities. |
| Omnibus Rules Implementing the Labor Code (Book V, Rule XXIII) | Supplements D.O. 147-15 on notices, conferences, and decision timelines. |
3. AWOL vs. Abandonment of Work
| AWOL (absence without leave) | Abandonment of work (just-cause ground) |
|---|---|
| Merely describes unauthorized absences. | A legal conclusion requiring (a) failure to report for work without valid reason and (b) a clear, overt intent to sever the employment relationship. |
| May be one element of abandonment. | Always results in dismissal if due process and elements are established. |
| Can also lead to suspension or lesser penalties. | Ends in termination because it is a just cause. |
Burden of proof: Employer must prove both elements; the worker need not prove anything.
4. Procedural Due Process: The Two-Notice-Plus-Hearing Formula
First Notice (Notice to Explain, NTE) Contents: specific acts or omissions (dates of absences, prior warnings); legal ground (Art. 297); directive to submit a written explanation. Timeline: at least five (5) calendar days for the employee to respond (D.O. 147-15).
Opportunity to Be Heard Forms:
- Written explanation alone, or
- Admin conference/hearing where the employee may present evidence, be assisted by counsel/representative, and confront witnesses. Requirement: Hearing is mandatory only if requested or if there are factual issues that can be threshed out orally (Jaka Food Processing doctrine). Best practice: always offer a hearing date in the NTE.
Second Notice (Notice of Termination) Contents:
- Summary of facts and evidence (time logs, affidavits, CCTV, email exchanges).
- Finding that abandonment was established.
- Effectivity date of dismissal.
Service of Notices
- Personal service with employee’s signature.
- Registered mail to last known address.
- Private courier/e-mail accepted under D.O. 147-15 if customary in the company. Refusal to receive must be documented by at least two witnesses and is deemed constructive receipt.
5. Substantive Due Process: Proving Abandonment
| Evidence Type | Illustrative Examples |
|---|---|
| Timekeeping | Daily time records, swipe logs, biometric data. |
| Policy Documents | Company leave procedure, employee handbook provisions on AWOL. |
| Correspondence | Emails, SMS, Viber/Teams messages demanding return to work. |
| Return-to-Work Orders (RTWO) | Written directives specifying deadline to report. |
| Investigation Report | Findings of HR or an ad hoc committee. |
Tip: Dispatch at least one RTWO—via registered mail—before concluding intent to abandon; courts treat it as good-faith effort to save the relationship (Sebroque v. NLRC, G.R. 176789, 2010).
6. Timelines & Cut-Offs
| Step | Best-practice period |
|---|---|
| Detect AWOL pattern | 2–3 consecutive working days (depends on policy) |
| Issue NTE | Within 24–48 h of detection |
| Employee reply | ≥ 5 calendar days |
| Hearing (if any) | Within 10 days of NTE |
| Decision & second notice | Within 30 days of first notice |
7. Landmark Jurisprudence
| Case | Principle Clarified |
|---|---|
| St. Luke’s Medical Center v. Notario (G.R. 195899, 2015) | Absences during preventive suspension cannot be treated as abandonment. |
| Jaka Food Processing Corp. v. Pacot (G.R. 151378, 2005) | Even if dismissal for a just cause is valid, lack of procedural due process incurs nominal damages (₱30,000; inflation-adjusted guideline now ₱50–60k). |
| Jarcia Machine Shop v. NLRC (G.R. 119552, 1997) | Four-month absence did not equal abandonment where employee sought reinstatement; intent controls. |
| Gonzales v. NLRC (G.R. 131653, 2002) | Filing an illegal-dismissal case negates intent to abandon. |
8. COVID-19 & Hybrid-Work Nuances
- Labor Advisory 17-20 (force-majeure suspensions) and subsequent WFH guidelines recognize exceptional mobility restrictions. An employee who could not secure a travel pass during lockdowns was not abandoning work.
- For hybrid setups, “AWOL” may consist of offline periods during core hours, failure to log in on company VPN, or unexplained silence despite multiple pings. Still, the two-notice rule applies.
- Employers must factor quarantine orders, isolation, or connectivity blackouts as possible justifications.
9. Common Employer Missteps & How to Avoid Them
- Instant dismissal memos without NTE → Remedy: always issue NTE first.
- Treating AWOL on Day 1 as abandonment → wait for a pattern OR a refused RTWO.
- Generic NTE (“You violated company rules.”) → cite exact dates and rules.
- Failing to document attempts to locate employee → keep courier receipts, screen-shots of calls.
- No second notice → send termination notice even if employee is unreachable; use registered mail.
10. Consequences of Non-Compliance
| Defect | Effect |
|---|---|
| No just cause proven | Illegal dismissal: reinstatement (or separation pay in lieu) + full backwages + 13th-month, holiday, COLA. |
| Just cause proven but no procedural due process | Valid dismissal but employer pays nominal damages (benchmark ₱30 k but may increase). |
| Bad-faith dismissal | Moral & exemplary damages, attorney’s fees. |
11. Public-Sector Counterpart
Under the Civil Service Commission (CSC) Omnibus Rules, absence without approved leave for:
- 30 consecutive workdays → presumed abandonment;
- Droupout rule: if an appointee fails to report on first day, appointment is void. Procedural steps mirror the two-notice system and require a formal Formal Charge plus opportunity to respond.
12. Best-Practice Checklist for HR
- Define AWOL triggers in the handbook (e.g., 3 consecutive days).
- Automate real-time absence alerts from your HRIS.
- Issue Return-to-Work Order first, then NTE if ignored.
- Give a minimum 5-day reply window; document receipt.
- Conduct a hearing/conference—even virtually—and minute the meeting.
- Decide within 30 days, serve second notice, and process clearances/payroll.
- Archive all correspondence for at least 5 years (NLRC prescriptive period).
- Train supervisors to distinguish AWOL from legally excused absences (sick leave, domestic violence leave, parental leave).
13. Key Takeaways
- Substance + Procedure are non-negotiable twins in Philippine labor law.
- AWOL, standing alone, is not abandonment; intent to sever employment must be proven.
- The two-notice rule—first notice, hearing, second notice—cannot be shortcut.
- Compliance failures are costly but preventable through disciplined HR documentation.
- Keeping abreast of DOLE advisories (e.g., hybrid-work, pandemic exceptions) ensures policies remain defensible.
Prepared June 21 2025. This article is for general guidance only and does not constitute legal advice. For specific cases, consult counsel or the DOLE.