Introduction

In the Philippine labor framework, the notice period serves as a critical transitional phase in the termination of employment, whether initiated by the employee (resignation) or the employer (dismissal for authorized causes). Governed primarily by the Labor Code of the Philippines (Presidential Decree No. 442, as amended), this period ensures that both parties have adequate time to prepare for the separation, such as handing over responsibilities, settling accounts, or finding replacements. However, the law imposes implicit and explicit prohibitions on unauthorized absences during this time, treating the notice period as an extension of active employment where regular duties and obligations persist. Unauthorized absences can lead to severe consequences, including forfeiture of benefits, disciplinary action, or even conversion of the termination into one for just cause.

This article comprehensively examines the legal basis for these prohibitions, the implications for employees and employers, exceptions, procedural requirements, and relevant jurisprudence. It underscores the principle that employment does not immediately cease upon notice but continues until the effective date of termination, thereby mandating attendance and performance unless otherwise excused.

Legal Basis for the Notice Period and Attendance Obligations

The foundation for the notice period is outlined in Articles 299 to 301 of the Labor Code (formerly Articles 284 to 286 before renumbering in some editions). Specifically:

Employee-Initiated Termination (Resignation without Just Cause): Under Article 300, an employee may terminate the employment relationship without just cause by serving a written notice on the employer at least one month (30 days) in advance. This notice period is mandatory to allow the employer to mitigate disruptions.
Employer-Initiated Termination for Authorized Causes: Article 299 requires the employer to serve a written notice to the employee and the Department of Labor and Employment (DOLE) at least 30 days prior to the effective date of termination for reasons such as installation of labor-saving devices, redundancy, retrenchment, closure, or disease.
Termination for Just Cause: No notice period is required under Article 297, as dismissal is immediate upon due process. However, if an employer opts to provide a notice period voluntarily, the same attendance rules apply.

During this 30-day window, the employment contract remains in full force. The Omnibus Rules Implementing the Labor Code (Book VI, Rule I, Section 6) emphasize that the employee must continue performing assigned duties. Absences are governed by general labor standards on working hours and leaves (Articles 82-96), as well as company policies on attendance. The law prohibits unauthorized absences through the lens of "serious misconduct," "willful disobedience," or "gross and habitual neglect of duties" under Article 297, which can justify dismissal.

Department Order No. 147-15 (Revised Rules on Employee Regularization and Termination) further reinforces that any deviation from regular attendance during the notice period must be justified, aligning with the constitutional protection of security of tenure (Article XIII, Section 3 of the 1987 Philippine Constitution).

Prohibitions on Absences: Scope and Application

The prohibitions on absences during the notice period are not explicitly enumerated in a single provision but are derived from the overarching duty of diligence and good faith in employment relations (Civil Code, Article 1700, in relation to Labor Code principles).

Key Prohibitions

Unauthorized Absences (AWOL - Absent Without Official Leave): Employees are prohibited from absenting themselves without prior approval or valid justification. Such absences are viewed as a breach of the employment contract, potentially amounting to abandonment of work. To constitute abandonment, two elements must be present: (a) absence without valid reason, and (b) clear intention to sever ties, as established in jurisprudence (e.g., Protective Maximum Security Agency, Inc. v. Celso E. Fuentes, G.R. No. 169303, February 11, 2008).
Repeated or Prolonged Absences: Even if not continuous, habitual tardiness or absences during the notice period can be construed as gross neglect, prohibited under Article 297(b). This includes failing to report for handover or training successors.
Absences Without Notice or Justification: Employees cannot unilaterally decide to stop working upon giving notice. The law prohibits "self-imposed garden leave" unless agreed upon or compensated by the employer. If an employee absents themselves, the employer may deduct corresponding wages (no work, no pay principle under Article 88) or initiate disciplinary proceedings.
Falsified or Fraudulent Leave Claims: Submitting false medical certificates or misrepresenting reasons for absence is prohibited as fraud or deceit, another just cause for dismissal under Article 297(d).

Employer-Enforced Prohibitions

Employers may implement stricter policies, such as requiring daily attendance logs or prohibiting leaves during the notice period, provided these are reasonable and disseminated properly (Article 4, Labor Code). However, blanket prohibitions on all leaves must not violate statutory entitlements, like emergency leaves under special laws.

Consequences of Violating Prohibitions

Violations of attendance prohibitions during the notice period carry significant repercussions:

For Employees:
- Conversion to Dismissal for Just Cause: Unauthorized absences can transform a voluntary resignation into a dismissal for cause, forfeiting separation pay, backwages, or other benefits (e.g., Jo v. NLRC, G.R. No. 121605, October 2, 2000).
- Forfeiture of Entitlements: Under Article 299, separation pay may be withheld if absences lead to business losses. Accrued leaves may not be commuted if the employee is deemed to have abandoned work.
- Damages and Liability: Employees may be held liable for damages if absences cause verifiable harm (Civil Code, Article 2176).
- Blacklisting or Poor References: While not legally mandated, this is a practical consequence affecting future employment.
For Employers:
- If an employer wrongfully accuses an employee of prohibited absences (e.g., without due process), it may constitute illegal dismissal, entitling the employee to reinstatement, backwages, and damages (Article 294).
- Employers must follow twin-notice rule: first notice specifying grounds, opportunity to explain, and second notice of decision.

Exceptions to the Prohibitions

While absences are generally prohibited, certain exceptions apply, ensuring the law's humane application:

Valid Leaves Under Law:
- Sick Leave: Justified by medical certification; unlimited for service incentive leave-eligible employees (Article 95), but must be notified.
- Maternity/Paternity/Solo Parent Leaves: Protected under Republic Act No. 8972 (Solo Parents' Welfare Act), RA 1161 (as amended), etc., overriding notice period prohibitions.
- Emergency or Force Majeure: Absences due to illness, death in family, or calamities are excusable if communicated promptly.
Mutual Agreement: Parties may agree to waive the notice period, allow paid leave, or immediate separation with pay in lieu (Article 300). "Garden leave" – where the employee is paid but not required to work – is permissible if consensual.
Just Cause for Employee Termination: If the employee resigns with just cause (e.g., serious insult by employer under Article 300), no notice is required, and absences post-resignation are not prohibited.
Health and Safety Concerns: Under Occupational Safety and Health Standards (RA 11058), absences due to unsafe conditions are protected.
Collective Bargaining Agreements (CBAs): CBAs may provide more lenient rules, such as extended leaves, prevailing over general law if beneficial (Article 255).

Procedural Requirements and Due Process

Any enforcement of prohibitions requires adherence to due process:

For Disciplinary Action: Employers must issue a show-cause notice, hold a hearing or conference, and render a written decision (Department Order No. 18-02; Wenphil Corp. v. NLRC, G.R. No. 80587, February 8, 1989).
DOLE Involvement: For employer-initiated terminations, notice to DOLE is mandatory; failure voids the termination.
Burden of Proof: The employer bears the burden to prove prohibited absences were unjustified (Santos v. NLRC, G.R. No. 115795, March 6, 1998).

Jurisprudence and Case Studies

Philippine Supreme Court decisions illustrate the application:

Abandonment During Notice: In Arc-Men Food Industries v. NLRC (G.R. No. 130638, September 29, 1999), the Court ruled that absences immediately after resignation notice constituted abandonment, justifying withholding of benefits.
Valid Excuses: De Guzman v. NLRC (G.R. No. 143954, October 25, 2005) held that absences due to illness during notice were not prohibited if supported by evidence.
Employer Abuse: In Mendoza v. HMS Credit Union (G.R. No. 178092, January 18, 2012), forcing attendance despite valid leave was deemed constructive dismissal.
Notice Withdrawal: Once given, notice cannot be withdrawn unilaterally, but absences may imply withdrawal, complicating matters (Esguerra v. CA, G.R. No. 119310, February 3, 1997).

These cases emphasize balancing employer interests with employee rights, with courts often scrutinizing intent and circumstances.

Practical Considerations for Employers and Employees

For Employees: Submit resignation in writing, request leave approvals in advance, and document communications to avoid disputes. If absences are unavoidable, notify immediately and provide proof.
For Employers: Include clear policies in employee handbooks, conduct exit interviews, and consider pay-in-lieu options to minimize risks. Training on handover can prevent absence-related issues.
Dispute Resolution: Grievances may be filed with the National Labor Relations Commission (NLRC) or through voluntary arbitration under Article 224.

Conclusion

The prohibitions on absences during the notice period in Philippine labor law reinforce the integrity of the employment termination process, ensuring continuity and fairness. Rooted in the Labor Code and supported by jurisprudence, these rules mandate attendance as part of the employee's fiduciary duty, with exceptions only for justified reasons or agreements. Violations can alter the nature of termination, leading to loss of benefits or legal battles. Both parties benefit from clear communication and adherence to due process, aligning with the law's goal of promoting industrial peace and protecting labor rights. Understanding these nuances is essential for navigating terminations effectively in the Philippine context.