Introduction

In the Philippine labor landscape, unauthorized absence—commonly referred to as absence without official leave (AWOL)—is a serious employment issue that can lead to disciplinary action, including termination of the employment contract. This occurs when an employee fails to report for work without prior approval, valid justification, or proper notification to the employer. While occasional absences may be excused with legitimate reasons such as illness or family emergencies, repeated or prolonged unauthorized absences can be grounds for dismissal, provided they meet the criteria under Philippine law.

The handling of such cases is governed primarily by the Labor Code of the Philippines (Presidential Decree No. 442, as amended), Department of Labor and Employment (DOLE) regulations, and relevant jurisprudence from the Supreme Court. Termination must adhere strictly to substantive and procedural due process to avoid claims of illegal dismissal, which could result in reinstatement, backwages, or damages for the employee. This article comprehensively explores the legal framework, grounds for termination, procedural requirements, employer responsibilities, employee rights, potential defenses, and post-termination considerations related to unauthorized absence.

Legal Basis for Termination Due to Unauthorized Absence

Under Philippine law, termination of employment must be based on just or authorized causes. Unauthorized absence typically falls under the category of just causes for dismissal as outlined in Article 297 (formerly Article 282) of the Labor Code. Specifically:

Gross and Habitual Neglect of Duties: Repeated unauthorized absences may constitute neglect of duties if they demonstrate a willful disregard for work responsibilities. The Supreme Court has ruled in cases like Paguio v. Philippine Long Distance Telephone Co. (G.R. No. 154072, 2002) that habitual absenteeism, even without prior warnings, can justify dismissal if it impairs business operations.
Abandonment of Work: This is a subset of neglect and requires two elements, as established in Jo v. National Labor Relations Commission (G.R. No. 121605, 2000):
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, evidenced by overt acts such as not returning despite notices or seeking other employment.

Not all unauthorized absences qualify as abandonment; isolated incidents or those with mitigating circumstances (e.g., due to natural disasters or health issues) do not suffice. DOLE Department Order No. 147-15 emphasizes that abandonment must be deliberate and not presumed from mere absence.

Other relevant provisions include:

Article 292 (formerly Article 277) on due process in termination.
DOLE rules on procedural due process, which mandate fairness and opportunity for the employee to defend themselves.
Company policies: Employers may have internal rules on attendance, but these must align with labor laws and be consistently applied.

It's important to note that termination for unauthorized absence is not automatic; the burden of proof lies with the employer to demonstrate that the absence meets the threshold for a just cause.

Procedural Requirements for Termination

Philippine law requires strict compliance with the "twin notice rule" and the right to a hearing or conference, as reiterated in Supreme Court decisions like King of Kings Transport, Inc. v. Mamac (G.R. No. 166208, 2007). Failure to follow these procedures can render the dismissal illegal, even if the substantive grounds are valid. The process typically unfolds as follows:

1. Verification and Documentation of Absence

The employer must first confirm the unauthorized absence through attendance records, time logs, or witness statements.
Document the duration, frequency, and impact on operations (e.g., missed deadlines or additional costs).
If the absence is prolonged (e.g., more than three days), attempt initial contact via phone, email, or registered mail to ascertain the reason.

2. Issuance of Notice to Explain (First Notice)

Send a written notice to the employee detailing the alleged unauthorized absence, including specific dates, company policy violations, and potential consequences.
The notice must be served personally, via registered mail to the last known address, or through other reliable means (e.g., email if acknowledged in company policy).
Give the employee at least five (5) calendar days to submit a written explanation. This period allows time for response and is based on DOLE guidelines.
The notice should be clear, factual, and non-accusatory to avoid bias claims.

3. Opportunity for Hearing or Conference

After receiving the employee's explanation (or if none is provided), schedule an administrative hearing or conference.
This can be formal (with HR, witnesses, and legal counsel) or informal, but it must allow the employee to present evidence, witnesses, or defenses.
If the employee requests assistance (e.g., union representation), accommodate it under Article 266 of the Labor Code.
Document the proceedings, including minutes and any admissions.
In remote or pandemic scenarios, virtual hearings may suffice, as per DOLE advisories.

4. Evaluation and Decision-Making

Assess the employee's response against evidence. Consider factors like prior warnings, length of service, and mitigating circumstances (e.g., force majeure).
If the absence is deemed justified, alternative sanctions like warnings or suspensions may apply instead of termination.
For abandonment, ensure both elements are met; mere silence from the employee does not automatically prove intent.

5. Notice of Termination (Second Notice)

If termination is warranted, issue a written notice stating the grounds, summarizing the findings from the hearing, and specifying the effective date (usually immediate or after final pay processing).
Include details on separation pay, if applicable (e.g., for long-tenured employees under company policy, though not mandatory for just causes).
Serve the notice similarly to the first one and retain proof of service.

The entire process should be completed within a reasonable time, typically 30 days from the last absence, to avoid constructive dismissal claims.

Employer Responsibilities and Best Practices

Employers must act in good faith and ensure non-discriminatory application of rules. Key responsibilities include:

Maintaining Clear Policies: Company handbooks should define unauthorized absence, allowable leaves (e.g., under Republic Act No. 8972 for solo parents or RA 9262 for violence victims), and progressive discipline (warnings before termination).
Record-Keeping: Preserve all documents for at least three years, as required by DOLE.
Training HR Personnel: Ensure staff are knowledgeable about labor laws to prevent procedural lapses.
Compliance with Special Laws: Consider protections for pregnant employees (RA 11210), persons with disabilities (RA 7277), or those on authorized leaves (e.g., sick leave under Article 98).
Avoiding Retaliation: Termination should not be used as a pretext for other motives, such as union-busting, which violates Article 259.

Best practices include implementing attendance tracking systems, offering counseling for habitual absentees, and providing return-to-work programs.

Employee Rights and Potential Defenses

Employees have constitutional rights to security of tenure (Article XIII, Section 3 of the 1987 Constitution), meaning they cannot be dismissed without cause and due process. Rights include:

Right to explain and be heard.
Access to company records related to the case.
Appeal to DOLE, National Labor Relations Commission (NLRC), or courts if dismissed.

Common defenses against termination for unauthorized absence:

Valid Reasons: Proof of illness (medical certificate), family emergencies, or transportation issues.
Lack of Intent: No overt acts showing abandonment, such as applying for clearance or returning promptly.
Procedural Flaws: If notices were not properly served or hearing was denied.
Discrimination or Bad Faith: Evidence that similar cases were treated leniently.
Force Majeure: Absences due to typhoons, pandemics, or other uncontrollable events.

If termination is contested, the employee may file a complaint for illegal dismissal with the NLRC within the prescriptive period (four years for money claims, per Article 306).

Consequences of Improper Termination

If found illegal, the employer may face:

Reinstatement with full backwages.
Payment of moral/exemplary damages and attorney's fees.
Administrative fines from DOLE.
Strained labor relations or union disputes.

Conversely, valid terminations protect the employer's right to manage the business efficiently.

Post-Termination Considerations

After termination:

Process final pay within 30 days, including unused leaves, 13th-month pay, and deductions.
Issue a Certificate of Employment upon request.
Report to DOLE if mass termination (though single cases for absence rarely qualify).
Handle any unemployment claims with the Social Security System (SSS) or PhilHealth.

In cases of abandonment, the employee may still claim benefits if not at fault, but forfeiture of certain perks (e.g., service incentive leave) could apply.

Conclusion

Terminating an employee for unauthorized absence in the Philippines requires a balanced approach that upholds labor rights while protecting business interests. By adhering to the Labor Code's just causes and due process requirements, employers can mitigate legal risks. Employees, on the other hand, should maintain open communication to avoid escalation. For complex cases, consulting legal experts or DOLE is advisable to ensure compliance. This framework not only fosters fair workplaces but also aligns with the state's policy of promoting full employment and equity in labor relations.