How Many Absences or Tardiness Justify Termination Under Philippine Labor Law?

Introduction

In the Philippine employment landscape, employee attendance is a critical aspect of workplace discipline and productivity. Absences and tardiness can disrupt operations, leading employers to consider disciplinary actions, including termination. However, Philippine labor law does not prescribe a fixed numerical threshold for absences or tardiness that automatically justifies dismissal. Instead, terminations must align with the principles of just cause, substantive due process, and procedural due process as outlined in the Labor Code of the Philippines (Presidential Decree No. 442, as amended) and related jurisprudence. This article explores the legal framework, key considerations, and practical implications for both employers and employees regarding absences and tardiness as grounds for termination.

Legal Basis for Termination Due to Absences or Tardiness

The primary legal foundation for dismissing an employee for attendance-related issues is found in Article 297 (formerly Article 282) of the Labor Code, which enumerates just causes for termination. Specifically, it includes "gross and habitual neglect of duties" as a valid ground. Absences and tardiness fall under this category when they demonstrate a pattern of negligence that adversely affects the employer's business.

Gross Neglect: This refers to a severe or reckless disregard for duties, such as unexplained or unauthorized absences that cause significant harm to the employer. A single instance of absence might not qualify unless it is extraordinarily damaging (e.g., missing a critical deadline leading to substantial financial loss).
Habitual Neglect: Habitual means repeated or chronic behavior. Tardiness or absences become habitual when they occur frequently without justifiable reasons, even if each instance is not grossly negligent on its own. The law emphasizes the cumulative effect rather than isolated incidents.

Importantly, the Labor Code does not specify a magic number—such as "three absences" or "five tardies"—that triggers termination. Determinations are case-specific, guided by company policies, collective bargaining agreements (CBAs), and the employee's overall performance and circumstances.

Company Policies and the Role of Habituality

Employers are required to establish clear rules on attendance in their company handbook or code of conduct, which must be disseminated to employees. These policies often define thresholds for disciplinary actions, such as:

Progressive discipline: Verbal warning for the first offense, written warning for the second, suspension for the third, and termination for subsequent violations.
Specific counts: Some companies might stipulate that three unauthorized absences in a month or ten tardiness incidents in a quarter warrant escalation to termination, but these are internal rules, not statutory mandates.

For absences or tardiness to justify termination, they must be:

Unauthorized or Unexcused: Valid reasons, such as illness supported by a medical certificate, family emergencies, or force majeure (e.g., natural disasters), excuse absences. Leaves under special laws—like maternity leave (Republic Act No. 11210), paternity leave (Republic Act No. 8187), or solo parent leave (Republic Act No. 8972)—are protected and cannot count toward neglect.
Habitual in Nature: Courts assess habituality based on frequency, duration, and impact. For example, sporadic tardiness due to traffic might not be habitual, but consistent late arrivals without effort to improve could be.

The Department of Labor and Employment (DOLE) issues guidelines through Department Orders, emphasizing that policies must be reasonable and non-discriminatory. Violations of company rules on attendance can constitute serious misconduct or willful disobedience, other just causes under Article 297, if the rules are lawful and known to the employee.

Due Process Requirements

Even if absences or tardiness appear habitual, termination cannot proceed without adhering to due process, as mandated by Article 292 (formerly Article 277(b)) of the Labor Code and DOLE Department Order No. 147-15. This involves the "twin notice rule":

First Notice (Notice to Explain): The employer must issue a written notice detailing the specific acts of absence or tardiness, requiring the employee to submit a written explanation within a reasonable period (typically at least five days).
Opportunity to be Heard: An administrative hearing or conference must be held, allowing the employee to present evidence, witnesses, or defenses. This step ensures fairness and considers mitigating factors like health issues or personal hardships.
Second Notice (Notice of Termination): If the explanation is unsatisfactory, the employer issues a written notice of dismissal, stating the grounds and evidence.

Failure to follow due process renders the termination illegal, entitling the employee to reinstatement, backwages, and damages. The burden of proof lies with the employer to demonstrate that the dismissal was for a just cause and followed proper procedure.

Jurisprudence and Key Supreme Court Rulings

Philippine courts, particularly the Supreme Court, have shaped the application of these laws through landmark decisions. These cases illustrate that no universal number exists; instead, context is key:

Cavite Apparel, Inc. v. Marquez (G.R. No. 172044, 2011): The Court upheld termination for habitual tardiness where the employee was late 87 times and absent 20 times over two years, despite warnings. It emphasized that habituality is determined by the totality of infractions, not a fixed count.
Mendoza v. HMS Credit Corporation (G.R. No. 187232, 2010): Dismissal was invalidated because the absences were due to illness, and the employer failed to prove gross neglect. The ruling stressed that medical conditions must be considered, and absences with valid excuses do not constitute neglect.
Skippers United Pacific, Inc. v. NLRC (G.R. No. 144314, 2003): The Court ruled that chronic absenteeism without leave justification amounts to gross neglect, justifying termination. Here, multiple unauthorized absences disrupted operations, and the employee ignored warnings.
Janssen Pharmaceutica v. Silayro (G.R. No. 172528, 2008): Termination for tardiness was deemed illegal because the policy was not uniformly enforced, highlighting the need for consistent application to avoid discrimination claims.

These cases underscore that while no specific number is set, patterns showing disregard for duties—often after progressive discipline—can lead to valid termination. Mitigating factors, such as first-time offenses or external circumstances, may reduce penalties to suspension or demotion.

Special Considerations and Exceptions

Several factors can influence whether absences or tardiness justify termination:

Probationary Employees: During the probationary period (up to six months), employers have more flexibility, but terminations still require just cause or failure to meet standards, with due process.
Unionized Workplaces: CBAs may provide stricter or more lenient rules on attendance, and grievances must follow CBA procedures before escalation to DOLE or courts.
Health and Disability: Under Republic Act No. 7277 (Magna Carta for Disabled Persons) and Republic Act No. 10524 (amending it), absences due to disabilities require reasonable accommodation, not termination.
Force Majeure and Calamities: Absences caused by typhoons, earthquakes, or pandemics (as seen in COVID-19 guidelines from DOLE) are excusable.
Tardiness vs. Absences: Tardiness is often treated less severely unless it accumulates to the equivalent of absences (e.g., via half-day deductions). Some policies convert multiple tardies into an absence.

Employers must also avoid constructive dismissal, where excessive penalties for minor infractions force resignation.

Remedies for Illegal Termination

If terminated unlawfully for absences or tardiness, employees can file a complaint with the DOLE Regional Office or the National Labor Relations Commission (NLRC). Remedies include:

Reinstatement without loss of seniority.
Full backwages from dismissal to reinstatement.
Moral and exemplary damages if malice is proven.
Attorney's fees.

The prescriptive period for money claims is three years, while illegal dismissal cases must be filed within four years.

Practical Advice for Employers and Employees

For employers:

Document all incidents meticulously, including warnings and employee responses.
Implement fair, written policies and train supervisors on due process.
Consider alternatives like counseling or flexible schedules before termination.

For employees:

Maintain records of excuses, such as medical certificates or calamity reports.
Respond promptly to notices and seek union or legal advice if needed.
Understand company rules to avoid unintentional violations.

Conclusion

Under Philippine labor law, there is no predetermined number of absences or tardiness that automatically justifies termination. Instead, dismissals must be based on gross and habitual neglect, supported by evidence, and executed with due process. The emphasis is on fairness, proportionality, and the specific context of each case. Employers bear the responsibility to prove just cause, while employees are protected against arbitrary actions. By adhering to the Labor Code and judicial precedents, both parties can foster a balanced and productive work environment. For personalized advice, consulting a labor lawyer or DOLE is recommended.