Employee Rights When They Are Fired for “Absence” in the Philippines A comprehensive practitioner-level guide (updated to June 2025)
1. Security of Tenure: The Constitutional and Statutory Bedrock
Article 13 of the 1987 Constitution makes security of tenure a self-executing constitutional right. This is fleshed out in:
| Source | Key Wording | Practical Meaning |
|---|---|---|
| Labor Code, Art. 294 [formerly 279] | “An employee shall not be dismissed except for a just or authorized cause and only after observance of due process.” | Any dismissal—whether labelled “abandonment,” “AWOL,” “no call-no show,” etc.—is presumed illegal unless the employer proves both (a) a valid cause and (b) valid procedure. |
| Labor Code, Art. 297(b) [formerly 282(b)] | Gross and habitual neglect of duties | The usual statutory peg invoked for absenteeism or abandonment. Single or isolated absence is never enough. |
| Labor Code, Art. 299 [formerly 284] | Disease as an authorized cause during prolonged absence | Dismissal is possible only if a DOH-accredited physician certifies that the ailment is incurable within six (6) months and continued employment is prejudicial to health. |
| Labor Code, Art. 305–306 [formerly 293–294] | 4-year prescriptive period | An illegal-dismissal complaint must be filed within four (4) years from dismissal. |
2. “Absence” vs. “Abandonment” vs. “Authorized Leave”
| Category | Elements | Employer’s burden of proof |
|---|---|---|
| Simple absenteeism | Sporadic, unexcused non-attendance | Show repeated written warnings and a pattern of neglect serious enough to be gross and habitual. |
| Abandonment (jurisprudential just cause) | (1) Failure to report for work without valid reason and (2) a clear, overt intention to sever the employment relationship (animus deserendi). Case law: St. Michael’s Institute v. Santos (G.R. 144332, Aug 2001); Harper v. NLRC (G.R. 105322, 1994). |
Must prove both elements. Dispatching a “return-to-work” directive that the employee ignores is strong evidence; mere AWOL memo is not. |
| Authorized cause due to disease | As above (Art. 299) | Present medical certificate from a DOH-accredited physician and pay separation pay (half-month salary per year of service, min 1-month). |
| Statutory leaves (e.g., maternity, paternity, expanded parental, Magna Carta of Women, Solo Parent, violence-against-women leave, SSS sickness) | Absence is legally protected; dismissal is outright illegal and may constitute discrimination or VAW. | Show that leave prerequisites were unmet or fraudulently obtained. |
Key point: Involuntary absence (sickness, preventive detention, disaster-related travel restrictions, COVID isolation, lawful strike, official union duty) cannot be punished with dismissal.
3. The Twin-Notice and Hearing Rule (Procedural Due Process)
First Notice (Charge Sheet).
- Must cite the specific acts—dates of absence, memos ignored, rules violated.
- Must give at least five (5) calendar days to submit a written explanation (DOLE Dept. Order 147-15).
Opportunity to be Heard.
- Actual conference is preferred; a written explanation alone suffices only if the employee opts not to be heard orally (Mitsumi v. Beciro, G.R. 183042, 2012).
Second Notice (Decision).
- Must state the facts, legal basis (e.g., Art. 297[b]), and effectivity date.
Jaka Food Processing v. Pacot (G.R. 151378, 2005) fixed nominal damages (₱30,000–₱50,000 range) when there is a valid cause but defective procedure.
4. Reliefs When Dismissal Is Illegal
| Remedy | Statutory / Jurisprudential Basis | Notes |
|---|---|---|
| Reinstatement (without loss of seniority) | Art. 294 | Immediately executory under Art. 229; no bond required from employee. |
| Full Backwages | Art. 294 | From dismissal until actual reinstatement or finality of decision. |
| Separation Pay in Lieu | Equity; consistently awarded when reinstatement is impossible (strained relations, company closure) | One-month salary per year of service as a rule of thumb, subject to discretion. |
| Moral and Exemplary Damages | Civil Code Art. 2224-2229; Uniwide Sales v. NLRC (2005) | Awarded if dismissal done in bad faith, with malice or fraud. |
| Attorney’s Fees | Art. 2208 CC; Art. 294 para 3 | Generally 10 % of monetary award. |
| SSS Unemployment Insurance | RA 11199 (2019) | Up to 50 % of average monthly salary credit, max 2 months, if dismissed for authorized causes or retrenchment—but not for just causes. Contesting a “just-cause” tag may unlock the benefit. |
5. The Litigation Roadmap
- 30-Day Deadlines no longer exist (repealed). Complaint may be filed any time within 4 years.
- SENA (Single-Entry Approach): Mandatory 30-day conciliation at DOLE before NLRC.
- NLRC Labor Arbiter: Position papers, then decision within 30 days.
- NLRC Commission Appeal (10 days; employer must post cash/surety bond equal to monetary award).
- Court of Appeals (Rule 65), then Supreme Court.
6. Preventive Suspension ≠ Dismissal
- Maximum 30 calendar days (Art. 299-A).
- Beyond 30 days, employee must be reinstated or paid wages thereafter (even while investigation continues).
7. Common Employer Pitfalls (and How Employees Exploit Them)
| Employer Misstep | Typical Result in Litigation |
|---|---|
| Failure to send notices to the last known address on record | Due-process violation → illegal dismissal even if absenteeism was real. |
| Treating a single day of AWOL as abandonment | NLRC reverses dismissal; awards backwages. |
| Dismissing employees on statutory leave | Automatic illegality; may trigger VAWC or gender discrimination penalties. |
| Refusing to accept a return-to-work letter | Converts employer’s refusal into constructive dismissal. |
8. Practical Tips for Employees
- Document Everything – secure copies of leave forms, medical certificates, and all emails or Viber messages showing intent to return.
- Send a Return-to-Work Demand via registered mail if locked out; this disproves “abandonment.”
- File Promptly – while you have four years, witnesses’ memories fade and documents disappear.
- Consider SSS Sickness Benefits for prolonged illness; filing these helps prove absence was involuntary.
- Explore SENA first—fastest route to a settlement.
9. Practical Tips for Employers
- Progressive Discipline – written warnings, suspensions, then dismissal.
- Always Keep Proof of Service of notices (registry receipts, WhatsApp read receipts).
- Internal Policy Manual should define “habitual” (e.g., 6 absences in 6 months). Lack of policy weakens the “habitual” element.
- Medical Leaves – require a fit-to-work clearance but beware disability discrimination.
- Call the Employee – contemporaneous phone logs showing repeated calls strengthen the abandonment narrative.
10. Emerging Trends to Watch (2024–2025)
| Trend | Impact |
|---|---|
| Remote Work & Flexitime | Absence tracking is harder. Employers must craft clear online attendance rules; otherwise, dismissal cases fail for vague standards. |
| Enhanced Family-Leave Bills (pending in Congress) | Could expand protected-leave categories, further narrowing legitimate AWOL grounds. |
| Digital Service of Notices | NLRC has begun admitting credible proof of email/WhatsApp service; but physical registered mail remains best practice. |
11. Key Takeaways
- Two elements must coexist for a dismissal due to “absence” to stand: a substantive cause (habitual neglect or bona fide abandonment) and procedural due process (twin notices + hearing).
- Absence arising from statutory leave, protected activities, or illness is never a just cause.
- The burden of proof is always on the employer. Doubts are resolved in favor of labor.
- Victims of illegal dismissal are entitled to reinstatement (or separation pay), full backwages, and, where warranted, damages and attorney’s fees.
“Security of tenure is rooted not only in law but in social justice. An employee who is absent may be negligent; but before the State allows the loss of livelihood, the employer must first prove both fault and fairness.”
Prepared June 9 2025 | Manila, Philippines