Here’s a practical, everything-you-need legal guide—Philippine context—on the notice requirement when an employee is dismissed for job abandonment. Use this as your step-by-step playbook. (General information only, not legal advice.)
What “job abandonment” legally means (and what it’s not)
Abandonment is a just cause for dismissal. The employer must prove both:
- The employee failed to report for work or absented themselves without valid reason; and
- There was a clear, deliberate intent to sever the employment (animus deserendi).
Mere absence/AWOL ≠ abandonment. Long absence alone is insufficient if intent to quit isn’t shown. Illness, detention, family emergency, or a pending grievance can negate intent. Resignation needs clear, voluntary intent; abandonment is inferred from conduct, but must be proved by the employer.
Due process framework: two-notice rule (+ opportunity to be heard)
Even for abandonment, you must observe procedural due process:
1) First notice – Notice to Explain (NTE)
- Allege the specific facts: dates of absence, schedules, prior warnings/RTW directives.
- State the charge: abandonment/serious neglect of duties.
- Give the employee a reasonable period to respond (best practice: 5 calendar days).
- Direct the employee to return to work immediately or on a date certain, unless they present a valid excuse.
- Inform them of their right to submit documents and request a conference/hearing.
2) Opportunity to be heard
- Hold a conference if requested or if factual issues are contested.
- Record attendance; allow a representative if company policy/CBAs so provide.
- Consider the written explanation and any proofs (medical certs, police reports, etc.).
3) Second notice – Notice of Decision/Termination
- Issued after evaluation, stating findings of fact, the rule/policy violated, and the legal ground (abandonment/serious neglect).
- Explain why dismissal (not a lesser penalty) is warranted.
- State the effective date of termination and any final pay/clearance steps.
Skipping or botching the two-notice rule can make a dismissal procedurally defective (exposing the employer to nominal damages even if the cause is valid). Doing it right protects the decision in litigation.
Service of notices: how to do it properly
- Send notices to the employee’s last known address on file via registered mail (or courier with tracking). Personal service is fine if acknowledged in writing.
- If the employee is unreachable, postal service to last known address suffices. Supplement with email/SMS/messenger for speed, but keep the mailable paper trail.
- Keep: registry receipts, tracking printouts, returned envelopes (if any), and screenshots of electronic sends.
Employer’s burden of proof (what convinces a Labor Arbiter)
To sustain dismissal for abandonment, prepare:
- Attendance logs/DTRs, timekeeping records showing the period of absence.
- RTW directives and NTE (with proof of service).
- Company rules/policy defining unauthorized absence and abandonment (handbook acknowledgment pages).
- Context showing intent to sever: e.g., employee took another job, ignored RTW/NTE, refused to receive letters, moved out without notice, prior warnings.
- Documentation of any hearing/conference (minutes, attendance, audio if any).
- Your notice of decision (with service proof).
Practical timeline (example playbook)
- Day 1–2: Employee is a no-show. Supervisor documents attempts to contact.
- Day 3–4: HR issues RTW directive + NTE (charge: abandonment/serious neglect), gives 5 days to explain and a date to report back. Serve by registered mail to last known address + email/SMS.
- Day 5–10: If employee responds → assess explanation; if requested, set conference. If no response and still no show → proceed.
- Day 11–15: HR final evaluation; issue Second Notice (Decision) stating dismissal for abandonment, with factual and legal bases; serve properly.
- Within 30 days from separation: Process final pay and clearance per DOLE advisories; issue Certificate of Employment upon request.
(You can adjust days to your policy; the key is a real chance to explain and a documented evaluation before the decision.)
Content of the notices (what to include)
Notice to Explain (charge memo)
- Heading: “Notice to Explain / Return-to-Work Directive”
- Particulars: dates of absence; shifts missed; prior verbal/written reminders; relevant policy clauses.
- Instructions: date to report back, where to report, 5 days to submit a signed written explanation with supporting proofs.
- Advisory: right to conference; consequence of failure to explain/report (case to be decided on record).
Notice of Decision
- Findings: summarize evidence and the employee’s (non)response.
- Ruling: legal ground—abandonment (serious neglect).
- Penalty: termination effective [date]; settlement of last pay/benefits; return of company property; clearance process.
- Remedies: where to direct queries; COE availability.
Distinctions and gray areas (how tribunals look at them)
- AWOL vs abandonment: AWOL is absence without leave; abandonment requires intent to sever. If the employee returns with a legitimate reason (e.g., hospitalization) and shows no intent to quit, termination for abandonment fails.
- Resignation letter vs conduct: A resignation letter is not required to prove abandonment; conduct can show intent. Conversely, a resignation letter procured under duress is unreliable.
- Constructive dismissal defense: If the employee shows they stayed away because of intolerable conditions (non-payment of wages, harassment, demotion), the “abandonment” theory collapses; risk flips to the employer.
- Probationary employees: Same two-notice rule applies for just cause (abandonment). (For non-regularization due to failure to meet standards, a different notice is used.)
- Preventive suspension: Generally not applicable to abandonment—it addresses situations where the employee’s continued presence poses a serious risk during investigation. Here, the employee is already absent.
Substantive vs procedural due process (and remedies if you slip)
- Substantive: You must actually have just cause (real abandonment). If not, dismissal is illegal → reinstatement with backwages or separation pay in lieu, plus damages/attorney’s fees where warranted.
- Procedural: If cause exists but your notice/hearing process is defective, the dismissal may be upheld but you risk nominal damages for due-process violation. Doing both right is non-negotiable.
Final pay, records, and statutory deliverables
- Final pay: Release within a reasonable period (commonly within 30 days from separation), net of lawful deductions and subject to clearance. Pro-rated 13th month pay for time actually worked remains due.
- Certificate of Employment (COE): Provide upon request (best practice: within 3 business days). A COE states facts (tenure, position); avoid argumentative remarks.
- Government reporting: Update SSS/PhilHealth/HDMF and BIR as needed through regular employer filings; keep separation data consistent with payroll records.
For employees (how to protect yourself)
- Explain promptly (written, signed) and attach proof (medical certificates, police reports, travel/immigration docs).
- Offer to return or propose a definite return date; this rebuts intent to abandon.
- If workplace conditions forced the absence, document the constructive dismissal factors (unpaid wages, harassment) and raise them in your NTE response.
- If dismissed without due process, you may file an illegal dismissal complaint; keep copies of all notices and your evidence.
For employers (mistakes to avoid)
- No paper trail: Verbal “we tried to call” won’t cut it. Send mailable notices and keep logs.
- Premature termination: Don’t issue a decision before the explanation period lapses.
- Vague notices: Specify dates, shifts, policies, and instructions; boilerplate letters get dinged.
- Ignoring explanations: Assess the employee’s proof fairly; if the reason is valid, consider lesser measures (warning, approved leave) or drop the charge.
Quick checklists
Employer’s compliance pack
- ☐ Attendance/DTR extracts
- ☐ Policy/handbook (acknowledged by employee)
- ☐ RTW directive + NTE (served properly)
- ☐ Hearing/conference minutes (if any)
- ☐ Decision notice (served properly)
- ☐ Registry receipts/tracking and email/SMS screenshots
- ☐ Clearance/final pay documentation; COE template
Employee’s defense pack
- ☐ Written explanation (signed) within the deadline
- ☐ Proof of valid reason (medical/police/immigration/tickets, etc.)
- ☐ Communications showing no intent to resign (offers to return, leave requests)
- ☐ Evidence of constructive-dismissal factors, if any
Sample snippets you can adapt
NTE opening paragraph
“Records show you have been absent without notice since [date] covering [number] workdays/shifts. This constitutes possible abandonment/serious neglect of duties under [policy provision]. You are directed to return to work on or before [date] and to submit a written explanation within five (5) calendar days from receipt of this notice, with supporting documents. You may request a conference. Failure to comply may result in a decision based on the records available.”
Decision closing paragraph
“After due evaluation, your continued absence since [date] and your failure to report or present a valid reason despite due notices show a deliberate intent to sever your employment. Pursuant to [policy/legal ground], your employment is terminated for abandonment, effective [date]. Please coordinate with HR for clearance and release of final pay in accordance with law. A Certificate of Employment will be issued upon request.”
Bottom line
- Abandonment = absence + intent to sever; the employer bears the burden of proof.
- Two-notice rule (NTE + Decision) and a real chance to be heard are mandatory—serve notices to the last known address with proof.
- Proper documentation wins (or saves) cases; lack of it turns routine HR matters into illegal-dismissal exposure.
If you want, tell me your exact scenario (how long the absence is, what notices were sent, any explanations received). I can tailor notice templates, a timeline, and a litigation-ready evidence checklist for your side.