Procedure for Termination of Employment on the Ground of Abandonment
(Philippine legal framework as of June 2025)
Disclaimer: This article summarizes Philippine labor law and jurisprudence for educational purposes. It is not a substitute for tailored legal advice.
1. Governing Law & Regulations
| Source | Key Provision |
|---|---|
| Labor Code, Art. 297 [formerly Art. 282] | Authorizes dismissal for “gross and habitual neglect of duties.” Abandonment is jurisprudentially treated as a species of this neglect. |
| Book VI, Rule I, DOLE D.O. 147-15 (2015) | Lays down due-process rules (twin-notice requirement, service of notices, 5-calendar-day minimum to explain, etc.). |
| 2011 NLRC Rules of Procedure | Governs litigation of illegal-dismissal disputes. |
| Civil Code Art. 1700 et seq. | Imposes mutual employer-employee obligations (good faith, fairness). |
| Constitution, Art. XIII, Sec. 3 | Mandates protection of labor and security of tenure. |
Leading Supreme Court Decisions
- St. Michael Academy v. NLRC (G.R. 93490, 1992) – Two elements of abandonment.
- Jaka Food Processing v. Paces Industrial (G.R. 151378, 2005) – Twin-notice rule applies even to abandonment.
- Metro Transit v. NLRC (G.R. 171118, 2010) – Burden of proof on employer; absence alone not enough.
- Valdez v. NLRC (G.R. 184362, 2014) – Notices must be sent to last known address by personal service and registered mail.
2. What Constitutes “Abandonment”
- Failure to report for work without valid or justifiable reason; and
- A clear, overt intention to sever the employer-employee relationship.
“Animus deserendi” (intent to abandon) is the decisive factor; mere absence, however prolonged, is insufficient.
Common Indicators of Intent
- Repeated ignoring of memoranda or return-to-work orders.
- Acceptance of another full-time job incompatible with existing employment.
- Statements or acts unmistakably showing refusal to return.
Examples not abandonment
- Illness or hospitalization with proof.
- Detention, military call-up, force majeure.
- Good-faith belief of constructive dismissal (employee stops working after being demoted, harassed, or unpaid).
3. Substantive Due Process
The employer must possess substantial evidence of both elements above—e.g., time-cards, logbooks, CCTV, e-mails, text messages, sworn statements, certified personnel ledgers.
4. Procedural Due Process (“Twin-Notice” Rule)
| Stage | What to Do | Timing & Form |
|---|---|---|
| 1st Notice: “Notice to Explain / Return-to-Work Order” | - State specific dates of absence and company rule violated. - Direct employee to report or submit a written explanation. - Give ≥ 5 calendar days to comply (D.O. 147-15). |
Serve personally; if employee is unreachable, send by registered mail to last known address and by courier/e-mail if available. |
| Opportunity to be Heard | Accept written explanation or conduct an administrative hearing/clarificatory conference. Document minutes even if employee does not attend. | |
| 2nd Notice: “Notice of Termination” | - Recite facts, findings, and legal basis (abandonment = gross & habitual neglect). - State effectivity date of dismissal (usually immediately after receipt). |
Same modes of service as first notice. |
Failure to observe the twin-notice rule does not void a dismissal when abandonment is proven, but the employer becomes liable for nominal damages (traditionally ₱30,000).
5. Timeline Checklist (Illustrative)
| Day | Action |
|---|---|
| 1 | HR detects AWOL > 3 days (no statutory minimum but 3–5 days is common). |
| 1–2 | Issue first notice; send via personal service & registered mail. |
| 7 | Last day of 5-day reply period. |
| 8–10 | Evaluate explanation; if none or unsatisfactory, schedule hearing or decide on record. |
| 10–12 | Draft and serve second notice of termination. |
| 13 | Separation pay not required (just-cause dismissal). Process last pay/COE within 30 days. |
| Within 30 | File establishment termination report (RKS Form 5) with DOLE Field Office. |
6. Employer’s Compliance Toolkit
- Up-to-date Employee Records – clear contact info, signed company handbook.
- Attendance Monitoring System – biometrics, timesheets, electronic logs.
- Document Each Attempt to Contact – keep registry receipts, screenshots of calls/e-mails.
- Prompt Action – prolonged employer silence may be construed as tacit consent to absence.
- Consistent Policy Application – selective enforcement may amount to discrimination.
- Post-Termination Report – mandatory filing with DOLE within 30 days.
7. Employee Remedies & Employer Exposure
| Scenario | Possible Outcome |
|---|---|
| Employer proves abandonment and due process | Dismissal upheld; no reinstatement, no separation pay. |
| Abandonment proven but due-process lapses | Dismissal upheld; employer pays nominal damages (₱30,000 – Jaka). |
| Due process observed but abandonment unproven | Illegal dismissal; employee entitled to reinstatement w/ back-wages or separation pay in lieu. |
| Neither element nor due process | Illegal dismissal + statutory damages + attorney’s fees. |
8. Defenses and Counter-Arguments
Employer may show:
- Repeated AWOL despite written directive.
- Acceptance of outside employment inconsistent with contract.
- Resignation letter or text.
Employee may dispute by:
- Producing medical certificates, leave forms, police blotters.
- Proving constructive dismissal (e.g., demotion, non-payment of wages).
- Showing continued interest to work (follow-ups, grievances).
9. Practical Tips & Best Practices
- Develop AWOL Escalation Ladder – verbal reminder → written memo → first notice.
- Use Multiple Delivery Channels – combine registered mail, courier, SMS, e-mail.
- Retain Proof for 3–5 Years – statutory prescriptive period for illegal-dismissal claims is 4 years.
- Train Supervisors – ensure they know to escalate absences quickly.
- Offer Mediation – some absences stem from personal crises; remediation may preserve tenure.
10. Frequently Asked Questions (FAQ)
| Question | Answer (Philippine context) |
|---|---|
| Is a 30-day absence required? | No fixed period; intent to sever is key. Even shorter AWOL can be abandonment if intent is clear. |
| Do I need to pay separation pay? | Not for just-cause dismissal. Separation pay applies only to authorized-cause terminations (Art. 298 [283]). |
| Can I refuse clearance? | Clearance may be conditioned on settlement of liabilities, but Certificate of Employment must still be issued within 3 days of request. |
| What if employee’s address is unknown? | Send notices to last address on file. Employer need only exercise reasonable diligence; misdelivery will not invalidate dismissal. |
| Can abandonment justify immediate dismissal without notice? | No. Twin-notice and hearing/opportunity to be heard are constitutionally required. |
11. Conclusion
Abandonment remains a narrowly construed just cause for termination in Philippine labor law. Employers carry the twin burdens of (1) proving the employee’s overt intent to sever the relationship and (2) strictly observing procedural due process. Conversely, employees who discontinue reporting for work must be mindful that silence or inaction—especially when coupled with disregarded notices—can be interpreted as abandonment. Both parties benefit when attendance issues are addressed promptly, transparently, and in writing.
Updated 27 June 2025