In the Philippines, the employer-employee relationship is heavily regulated by the Labor Code and prevailing jurisprudence. When an employee decides to leave—or simply stops showing up—both parties must navigate specific legal requirements to avoid liability.
Here is a comprehensive guide to handling Resignation and Absence Without Official Leave (AWOL) within the Philippine legal framework.
1. The Right to Resign: Voluntary Resignation
Resignation is the voluntary act of an employee who finds themselves in a situation where they believe personal reasons cannot be sacrificed in favor of the exigency of the service.
- The 30-Day Notice Rule: Under Article 300 [285] of the Labor Code, an employee must serve a written notice to the employer at least one month (30 days) in advance.
- Purpose of the Notice: This period allows the employer to find a replacement and ensure a smooth handover of duties.
- Liability for Failure to Notify: If an employee leaves without the 30-day notice (and without a valid legal cause), they may be held liable for damages. However, the employer cannot physically force the employee to stay (due to the constitutional prohibition against involuntary servitude).
Exceptions to the 30-Day Notice
An employee may resign immediately (without notice) for the following "just causes":
- Serious insult by the employer or their representative on the honor and person of the employee.
- Inhuman and unbearable treatment accorded the employee by the employer.
- Commission of a crime or offense by the employer against the person of the employee or their immediate family.
- Other causes analogous to any of the foregoing.
2. Understanding AWOL (Absence Without Official Leave)
AWOL is not a specific term found in the Labor Code, but in legal practice, it is treated under the umbrella of Abandonment of Work, which is a form of Gross and Habitual Neglect of Duty (a just cause for termination).
The Two Elements of Abandonment
To legally terminate an employee for abandonment (AWOL), the employer must prove two things:
- Failure to Report: The employee failed to report for work or was absent without a valid reason.
- Intent to Sever: A clear intention to sever the employer-employee relationship (this is the more difficult part to prove).
Important Note: If an employee immediately files a complaint for illegal dismissal after being "terminated" for AWOL, the Supreme Court often rules that they did not intend to abandon their job, as filing a suit is inconsistent with abandonment.
3. Due Process: The "Two-Notice Rule"
Even if an employee has been AWOL for weeks, an employer cannot simply delete them from the payroll. "Procedural Due Process" must still be followed:
- Notice to Explain (NTE): The employer must send a written notice to the employee’s last known address. This notice should:
- Detail the specific dates of absence.
- Direct the employee to explain why they should not be terminated for abandonment.
- Give them at least five (5) calendar days to respond.
- Administrative Hearing/Conference: An opportunity for the employee to be heard (though if they fail to show up, the employer may proceed).
- Notice of Decision: A second written notice informing the employee of the management's decision (e.g., termination of employment).
4. Final Pay and Clearance
Regardless of how an employee leaves—whether through a graceful resignation or a messy AWOL—they are entitled to their Final Pay.
Under Labor Advisory No. 06, Series of 2020, final pay must be released within 30 days from the date of separation. Final pay typically includes:
- Unpaid earned salary.
- Pro-rated 13th-month pay.
- Cash conversion of unused Service Incentive Leaves (SIL), if applicable.
- Tax refunds (if any).
Employer's Right to Withhold: An employer can withhold final pay only to settle the employee’s pending accountabilities (e.g., unreturned laptop, uniforms, or liquidated damages if specified in the contract).
5. Summary Table: Resignation vs. Abandonment
| Feature | Voluntary Resignation | Abandonment (AWOL) |
|---|---|---|
| Initiative | Employee | Employee (via inaction) |
| Notice Requirement | 30 days (standard) | N/A (Violation of policy) |
| Legal Basis | Article 300, Labor Code | Just Cause (Art. 297) |
| Due Process | Acceptance of Resignation | Two-Notice Rule |
| Final Pay | Mandatory | Mandatory |
Key Takeaways for Employers
- Update Addresses: Always ensure you have the employee's current residential address for sending notices.
- Document Everything: Keep logs of unanswered calls, messages, and the "Return to Work" orders sent.
- Clearance is Key: Use the 30-day resignation period to ensure all company property is returned before releasing the final check.
Key Takeaways for Employees
- Notice is Protection: Serving the 30-day notice protects you from damage claims and ensures a "clean" Certificate of Employment.
- AWOL is a Risk: Being terminated for cause (Abandonment) stays on your record and can severely impact future background checks.
Would you like me to draft a template for a Notice to Explain (NTE) for an employee who has gone AWOL?