Introduction

In the Philippine labor landscape, employee termination is a sensitive matter governed by stringent legal standards to protect workers' rights while allowing employers to maintain operational efficiency. Unauthorized absence, commonly referred to as Absence Without Official Leave (AWOL), and job abandonment are recognized as just causes for dismissal under the Labor Code of the Philippines. However, such terminations must adhere to substantive and procedural due process to avoid claims of illegal dismissal, which could result in reinstatement, backwages, and damages. This article explores the legal framework, requirements, procedural steps, evidentiary considerations, and potential remedies associated with terminating employees for these reasons, drawing from the Labor Code, Department of Labor and Employment (DOLE) guidelines, and relevant jurisprudence.

Legal Basis and Definitions

The primary legal foundation for employee termination in the Philippines is found in Presidential Decree No. 442, as amended, known as the Labor Code. Specifically, Article 297 (formerly Article 282) outlines just causes for termination, including:

Serious misconduct or willful disobedience of lawful orders.
Gross and habitual neglect of duties.
Fraud or willful breach of trust.
Commission of a crime against the employer or their representatives.
Analogous causes.

Unauthorized absence and abandonment fall under "gross and habitual neglect of duties" or as an analogous cause. Abandonment is not explicitly listed but is interpreted as a form of neglect that demonstrates an employee's intent to sever the employment relationship.

Key Definitions

Unauthorized Absence (AWOL): This refers to an employee's failure to report for work without prior approval or valid justification. Isolated instances may not suffice for termination but could lead to disciplinary actions like warnings or suspensions if habitual.
Abandonment of Work: Jurisprudence from the Supreme Court defines abandonment as the deliberate and unjustified absence from work coupled with a clear intention to discontinue employment. It requires two concurrent elements:
1. The employee's failure to report for work or absence without valid or justifiable reason.
2. A clear intention to sever the employer-employee relationship, manifested by overt acts (e.g., not responding to return-to-work orders or engaging in other employment).

Mere prolonged absence does not automatically constitute abandonment; the employer must prove the employee's intent, as emphasized in cases like Tan Brothers Corp. of Basilan City v. Escudero (G.R. No. 188711, July 3, 2013), where the Court ruled that absence due to illness or family issues does not equate to abandonment without evidence of intent.

DOLE Department Order No. 147-15, which provides guidelines on the implementation of just and authorized causes for termination, reinforces that abandonment must be established through substantial evidence, and employers cannot presume intent based solely on duration of absence.

Substantive Requirements for Valid Termination

For a termination based on unauthorized absence or abandonment to be valid, it must satisfy substantive due process—meaning the cause must be just and proven by substantial evidence. Employers bear the burden of proof in labor disputes, as per Article 292 of the Labor Code and rulings like Wenphil Corp. v. NLRC (G.R. No. 80587, February 8, 1989).

Establishing Gross and Habitual Neglect

Gross Neglect: The absence must be severe enough to prejudice the employer's business. For example, if an employee's role is critical (e.g., a key operator in a manufacturing plant), even a short unauthorized absence could be gross if it causes significant disruption.
Habitual Neglect: Isolated absences may not qualify unless they form a pattern. Habitual means repeated occurrences, even if not gross individually, as seen in Cavite Apparel, Inc. v. Marquez (G.R. No. 172044, February 6, 2013).

Proving Abandonment

To prove abandonment:

Document the employee's absence history, including dates and durations.
Show attempts to contact the employee (e.g., via registered mail, phone calls, or home visits).
Issue return-to-work orders, and note the employee's failure to comply.
Gather evidence of intent, such as the employee starting a new job, relocating without notice, or expressing disinterest in returning.

If the absence is due to valid reasons like health issues, force majeure, or labor disputes, it cannot be grounds for termination. For instance, absences during a valid strike are protected under Article 279.

Procedural Due Process: The Twin-Notice Rule

Even with a just cause, failure to observe procedural due process renders the termination illegal. The Supreme Court in King of Kings Transport, Inc. v. Mamac (G.R. No. 166208, June 29, 2007) outlined the "twin-notice rule" for just cause terminations:

First Notice (Notice to Explain or Show Cause Letter):
- Issued promptly after the absence is noted (ideally within a reasonable time, such as 5-10 days of continuous absence).
- Must specify the acts or omissions constituting the ground for termination (e.g., dates of absence, company policy violated).
- Give the employee ample opportunity to explain—typically 5 calendar days from receipt.
- Served personally, via registered mail with return card, or through other reliable means if the employee is unreachable.
Hearing or Conference (Optional but Recommended):
- While not mandatory, providing an opportunity for the employee to be heard strengthens the employer's case. This can be a formal meeting or written submissions.
- Document the proceedings, including the employee's defenses.
Second Notice (Notice of Termination):
- Issued after evaluating the employee's explanation.
- State the facts, the decision to terminate, and the effective date.
- Specify the grounds and how the employee's response was considered.
- Served in the same manner as the first notice.

DOLE guidelines emphasize that the notices must be in a language understandable to the employee, and affidavits from witnesses (e.g., HR personnel) can support service proofs.

In abandonment cases, multiple return-to-work notices may be required to demonstrate the employer's good faith and to negate claims of constructive dismissal.

Company Policies and Collective Bargaining Agreements

Employers should have clear policies on attendance, leaves, and disciplinary actions in their company handbook, compliant with DOLE's requirements under Department Order No. 18-02 for contractors or general rules. These policies must be disseminated and acknowledged by employees.

If a Collective Bargaining Agreement (CBA) exists, its provisions on absences and terminations take precedence, provided they do not contravene the Labor Code. For example, a CBA might specify a threshold for habitual absence (e.g., 3 unexcused absences in a month).

Consequences of Invalid Termination

If a termination is deemed illegal by the National Labor Relations Commission (NLRC), Labor Arbiter, or courts:

Reinstatement: The employee may be ordered reinstated without loss of seniority.
Backwages: Full backwages from termination date until reinstatement or finality of decision.
Damages: Moral and exemplary damages if bad faith is proven.
Separation Pay: In lieu of reinstatement if strained relations exist, computed at one month's pay per year of service.

Employers may face administrative fines from DOLE for non-compliance.

Employees can file complaints with DOLE for conciliation or the NLRC for adjudication. The prescriptive period is 3 years for money claims and 4 years for illegal dismissal under Article 306.

Employer Obligations and Best Practices

To mitigate risks:

Maintain accurate attendance records using biometric systems or logbooks.
Implement progressive discipline: Verbal warning, written warning, suspension, then termination for repeated offenses.
Train HR on due process to avoid procedural lapses.
Consider mitigating factors like length of service, first-time offense, or personal circumstances.
For probationary employees, termination is easier but still requires just cause and due process if beyond the probationary period.

In cases of mass absences (e.g., due to typhoons), employers must exercise leniency and verify reasons before acting.

Employee Rights and Defenses

Employees have the right to security of tenure under Article 294, meaning they cannot be dismissed without just or authorized cause and due process. Defenses against abandonment claims include:

Proving valid reasons for absence (e.g., medical certificates).
Arguing lack of intent (e.g., attempts to communicate with the employer).
Claiming constructive dismissal if the employer's actions forced the absence.

Jurisprudence like Agabon v. NLRC (G.R. No. 158693, November 17, 2004) clarified that while substantive just cause may exist, procedural violations warrant nominal damages.

Special Considerations

Overseas Filipino Workers (OFWs): Governed by the Migrant Workers Act (RA 8042, as amended), terminations for absence require coordination with the Philippine Overseas Employment Administration (POEA) and adherence to contract terms.
During Emergencies: Under RA 11058 (Occupational Safety and Health Standards), absences due to health crises (e.g., COVID-19) are excused if justified.
Government Employees: Civil Service rules apply, with abandonment defined under CSC Memorandum Circular No. 14, s. 1999, requiring 30 days of continuous absence.

Conclusion

Terminating employees for unauthorized absence or abandonment in the Philippines demands a careful balance between employer prerogatives and employee protections. By strictly following the Labor Code's just cause and due process requirements, employers can execute valid dismissals while minimizing legal exposure. Understanding these principles ensures fair labor practices and contributes to a stable workforce.