How to Legally Terminate a Regular Employee for Habitual Tardiness and Absenteeism (Philippines)

This article provides general information on Philippine labor law for HR and business owners. It is not legal advice. When in doubt, consult counsel or your DOLE regional office.

1) Legal Foundations

Security of tenure & “just cause”

Regular employees enjoy security of tenure under the Constitution and the Labor Code. They may be dismissed only for just causes or authorized causes. Habitual tardiness and absenteeism fall under just causes, typically as:

Gross and habitual neglect of duties, and/or
Violation of a lawful and reasonable company rule (if your Code of Conduct classifies and penalizes attendance offenses).

Substantive vs. procedural due process

A valid dismissal requires:

Substantive just cause — real, proven grounds; and
Procedural due process — the twin-notice requirement and a meaningful opportunity to be heard.

Failure on substance risks illegal dismissal (reinstatement/backwages). Failure on procedure, even with a valid cause, leads to nominal damages payable to the employee.

2) What “Habitual” Means in Practice

There is no universal magic number. “Habitual” is established by pattern, frequency, and persistence despite warnings, measured against your written policy. Strengthen your case by showing:

A clear attendance policy: definitions of tardiness/absence, grace periods, cutoffs, what counts as excused/unexcused, documentation required (e.g., medical certificate), and the penalty matrix (progressive discipline).
Consistent enforcement across employees (no favoritism).
Multiple infractions over time, with prior memos/warnings acknowledged by the employee.
Business impact: missed deadlines, disrupted operations, extra burdens on co-workers, customer complaints, etc.

Tip: Courts scrutinize attendance cases. A single month of late arrivals rarely suffices. Several months showing recurrent violations—especially after written warnings—are far more persuasive.

3) Evidence You Should Prepare

Time records: biometrics/DTRs, bundy cards, logs (include raw exports).
Leave records: approved leaves, SL/VL balances, denials, call-in logs.
Memos: prior Notices to Explain (NTEs) and written warnings, employee explanations, minutes of clarificatory meetings.
Policy documents: Employee Handbook/Code of Conduct; proof of dissemination (signed acknowledgment, orientation attendance sheets).
Operational proof: emails/escalations showing service delays, missed hand-offs, client issues, overtime used to cover, etc.

Maintain authentic, legible, and contemporaneous records. Keep originals and certified copies.

4) The Procedural Roadmap (Step-by-Step)

Step 1: Verify policy basis and consistency

Confirm your attendance policy and penalty matrix pre-existed the violations and were communicated.
Check comparators: have other employees with similar records received similar penalties?

Step 2: Audit the attendance history

Compute the counts (e.g., number of late arrivals > X minutes; number of unexcused absences).
Group by month/quarter to reveal pattern and escalation.
Exclude excused events (approved leave, force majeure, documented emergencies).

Step 3: Issue the First Notice (Notice to Explain)

Serve a written NTE detailing:

Specific acts: dates, timestamps, minutes late, dates of absences.
Policy provisions violated and the possible sanction (including dismissal).
Evidence attached or made available for inspection.
Give the employee at least five (5) calendar days to submit a written explanation and produce supporting documents.

Step 4: Provide a Hearing or Conference

Hold a clarificatory meeting (in person or virtual).
Allow representation by a colleague or union officer (if applicable).
Discuss the evidence and the employee’s explanation; take minutes and have attendees sign.

If the written explanation fully addresses the charges and no factual issues remain, a formal hearing may be optional; however, it is safer to convene one when dismissal is on the table.

Step 5: Impartial evaluation

Weigh the totality of circumstances: length of service, track record, corrective efforts, mitigating factors (health, disasters), sincerity of commitment to improve.
Confirm the fit between facts and just cause relied upon (e.g., gross & habitual neglect vs. rule violation).
Ensure the penalty is proportionate and consistent with your matrix and past practice.

Step 6: Decision Notice (Final Notice)

If dismissal is warranted, issue a written decision that:

States the facts found and reasons for dismissal.
Identifies the legal/policy grounds.
Specifies the effective date.
Includes instructions for clearance, return of company property, and final pay release. Serve it personally or by a reliable method (e.g., courier with proof of receipt). Keep proof of service.

5) Progressive Discipline: A Practical Matrix

While the law doesn’t mandate “three strikes,” progressive discipline helps prove fairness.

Example (illustrative only—tailor to your policy):

1st–2nd minor attendance offense: Verbal/Written Warning
3rd–4th within 6 months: Written Warning/Short Suspension
5th+ or aggravated pattern within 12 months: Final Warning/Suspension
Continued offenses after final warning: Dismissal

For unexcused absences (AWOL), your policy might escalate faster than for marginal tardiness. Spell this out in writing.

6) Substantive Standards to Keep in Mind

Lawful, reasonable rule: Attendance rules must be job-related, reasonable, and communicated.
Willfulness/neglect: A proven pattern of lateness/absence despite warnings shows disregard for duty.
Proportionality: Chronic 5-minute delays may warrant penalties but not necessarily dismissal, unless the role is time-critical (e.g., shift handover).
Length of service: Long tenure mitigates but doesn’t excuse persistent violations.
Uniform enforcement: Unequal treatment undermines the case.

7) Pay and Benefits on Separation

For dismissals due to just cause:

Separation pay: Not required (unless provided by CBA/company policy). Courts rarely award “financial assistance” when the ground is serious (e.g., gross and habitual neglect).
Final pay: Pay earned wages up to last day, pro-rated 13th month pay, cash conversion of unused leaves if your policy/CBA allows, and any lawful deductions (e.g., unreturned assets).
Certificate of Employment (COE): Issue upon request, within a short, reasonable period.
Tax/clearance: Process BIR forms and company clearance in good faith. Final pay should be released within a reasonable period under company policy or applicable advisories.

8) Common Pitfalls (and How to Avoid Them)

Vague NTEs: Always include specific dates/times and attach records.
Too little response time: Provide at least 5 calendar days to reply.
Skipping the hearing when facts are disputed.
No proof of policy dissemination: Keep signed acknowledgments.
Inconsistent penalties: Align with your matrix and comparators.
Counting excused events: Remove approved leave, medical emergencies, and force majeure.
Poor documentation of service: Keep courier receipts, read-receipts, or acknowledgment signatures.
Retaliatory timing: Avoid dismissals immediately after protected acts (e.g., filing complaints); it suggests pretext.

9) Special Situations

Unionized employees: Follow the CBA’s grievance and disciplinary procedures in addition to statutory due process.
Probationary employees: Standards differ; still provide due process and ensure standards were communicated at hiring.
ADA-like issues (disability/illness): Absences linked to a legitimate illness, pregnancy, or disability require great caution; consider reasonable accommodations and comply with special laws (e.g., Magna Carta of Women, Solo Parents’ Welfare Act, PWD laws).
Force majeure/public emergencies: Calamities, transport strikes, or government-ordered suspensions may excuse attendance breaches; consult government issuances.

10) Practical HR Toolkit

A. First Notice (NTE) – Sample Language

Subject: Notice to Explain – Habitual Tardiness/Absenteeism You are required to submit a written explanation within five (5) calendar days from receipt of this notice why no disciplinary action, including dismissal, should be taken against you for the following:

Tardiness on the following dates and times recorded by our biometrics: [list dates, minutes late].

Unexcused absences on: [list dates], without approved leave or sufficient justification. These acts appear to violate Section [x] of our Code of Conduct, which classifies habitual tardiness/absenteeism as a [serious] offense punishable by [penalty], and may constitute gross and habitual neglect of duties. You may attach any supporting documents and you are entitled to a conference/hearing. Failure to submit an explanation may result in a decision based on available records.

B. Hearing Minutes – What to Capture

Date/time/place; attendees; summary of issues.
Employee’s explanations and any commitments to improve.
Documents presented by both sides.
Signatures (or notation of refusal to sign).

C. Decision Notice – Sample Closing Paragraph

After evaluation of the records, including your explanation dated [date] and the clarificatory hearing on [date], we find that your repeated tardiness/absences from [period] constitute habitual neglect of duties and violate Section [x] of our Code of Conduct. Prior warnings dated [dates] did not deter further violations. Accordingly, your employment is terminated for just cause, effective [date]. Please complete clearance and return company property. Your final pay will cover earned wages and benefits as required by law and policy. You may claim your Certificate of Employment upon request.

11) Documentation Checklist (Print & Use)

Code of Conduct/Attendance Policy + penalty matrix
Proof of policy dissemination/acknowledgment
Complete DTR/biometrics for the relevant period
Leave applications/approvals/denials
Prior warnings/NTEs and employee explanations
Hearing notice and signed minutes
Final decision notice + proof of service
Clearance form; property return checklist
Final pay computation; 13th-month pro-ration sheet
COE template, ready upon request

12) FAQs

Q: Do we always need a hearing if the employee doesn’t submit an explanation? A: If the employee is afforded the chance (with 5 calendar days) but refuses to explain, you can decide based on records. A brief hearing is still prudent in termination cases.

Q: Can we dismiss based on one month of heavy tardiness? A: Rarely. Build a pattern (several months) and ensure prior discipline was given and ignored.

Q: Is separation pay due for just-cause dismissal? A: Generally no, unless your CBA or company policy grants it. Financial assistance is exceptional and often disallowed for serious causes.

Q: Are we required to consider redeployment or demotion first? A: Not legally required for just causes, but progressive discipline and reasonable alternatives (where practicable) strengthen fairness.

13) Final Takeaways

Win on both fronts: substance (clear, repeated violations under a valid policy) and procedure (twin notices + real chance to be heard).
Consistency and documentation decide attendance cases.
Tailor penalties to role criticality and impact; apply your matrix faithfully.
Close out properly: final pay, COE, and clearance.

With a clear policy, disciplined documentation, and scrupulous due process, employers can lawfully address habitual tardiness and absenteeism while respecting workers’ rights.